H'B iiatjwil Wwsttg ff (tog BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF Benrij W. Sage 1891 #...&isr.M..fy. za/?/jir.. 9963 The date shows'when this volume was taken. To renew this book copy the call No, and give to ____ the librarian. HOME USE RULES All Books subject to Recall. ■'!.' Books not used for instruction or research , are returnable within "4 weeks. Volumes of periodi- cals and of pamphlets are held in the library as much as possible. For special purposes they are given out for a limited time. Borrowers should not use their library privileges for the bene- fit of other persons. Books not needed 1 during recess-periods ; should be returne d to > the library, or arrange- ... ments made for their return during borraw- < er'sabsence,fiwanted. ■J;, Books needed by ;*■» more than one person e» ,. are held on the reserve v X ; list. Books of special • » ,|f j .. value and "gift books, '•' when the giver wishes it, are not allowed to circulate. *„.■■«. ^ Readers are asked to report all cases of books marked or muti- lated. ', Do not deface book* by marks and writing. m ? '"V Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924092567233 STREET RAILWAY LAW A DIGEST IMPORTANT DECISIONS IN ALL PARTS OF THE COUNTRY, COVERING THE MORE IMPOR- TANT CLASS OF CASES WHICH DAILY ARISE IN THE MANAGEMENT OF STREET RAILWAYS MANAGERS AND CLAIM DEPARTMENTS. CHICAGO: "Windsor & Kbnfield Publishing Co. 1896. 15 The street railway law here presented does not lay claim to the dignity of a text book, yet in the number and variety of the cases cited there will be found the most important and usual propositions ; as well as many of the rarer exigencies. The compilation and digest has been made by a prominent member of the Chicago bar and the index is arranged by a gentleman conversant with the troubles of a railway manager. The index is of the Fact, and while it does not appeal to the legal talent, it is hoped that it will be of material aid to the manager and help him in the more intelligent decision of the many cases he is often obliged to decide on his own responsibility, and without the assistance of counsel. * STREET RAILWAY LAW. Injury to Passenger Riding on Step of Car. A Passenger on a street car, who, on the invitation of a person in charge, or without objection from him, stands on the step of the car, outside of the gate, is not negligent per se, as the danger of such a position is not so obvious that it could be said that a reasonable man would disobey the invitation or direction. At the time of the accident, the defendant was con- verting its horse railroad into a cable road. The plain- tiff had been engaged in finishing up the new track by putting gravel between the paving stones at a point near Taylor avenue, which was about three-fourths of a mile west of the place of the accident. The plaintiff was in the employ of contractors, and not of the defendant. At 5 o'clock in the evening he took a car going east. According to his evidence, he got on the car when it stopped at Taylor avenue. It seems the car was full of passengers, so that there was neither sitting nor standing room on the inside. He first went to the rear platform, but found so many persons standing on it that he could not get on. He then-went to the forward platform, and found that crowded with passengers. There was an iron gate at the front platform, extending from the outer side ot the car, across the platform to the dashboard, and the gate extended down to within a few inches of a step leading up to the platform, which step extended out six or seven inches beyond the outer line of the car. He and another person, by the name of Kelly, stood on this 8 STREET RAILWAY LAW. step. When they reached Sarah street, the plaintiff was struck by a projecting timber of a derrick standing on the street, and was knocked off. The defendant company had nothing to do with this derrick. It was a large contrivance used by contractors in constructing a sewer, and was moved along as the work of the sewer progressed. It consisted of timbers, pulleys, a track, and a dumping apparatus. The end next the car was about four feet high, and the other end much higher. At the lower end a timber projected out within ten inches of the passing car, and it was this pro- jecting timber that struck the plaintiff. It is conceded on all hands that the plaintiff was a pas- senger on this car, and the question is whether, as a mat- ter of law, he was guilty of contributory negligence in riding on the step on the outside of the gate. The law is now well settled that it is not negligence per se on the part of a passenger on a horse car to ride on the plat- form, and this is true whether there is or is not room in the car. There can be no doubt but riding on the step or platform of such a car is attended with more danger than riding in the car; and if a passenger will take a position upon such a place in violation of the rules of the company and the warning of its servants in charge of the car, he is guilty of negligence. Here the closed gate was itself a warning that this front platform was not a proper place to stand. Nothing more appearing than this, that the plaintiff took his position on the step, with the closed gate between him and the platform, and that he was knocked off by coming in contact with the derrick, and we should have no hesitancy in upholding the ruling of the trial court. But what are the additional facts? Though this car was crowded with passengers, it stopped at Taylor avenue, and this was an invitation to STREET RAILWAY LAW. 9 the plaintiff and others to get on, no contrary announce- ment being made. Indeed, there is certain evidence tending to show that some ladies got on at that place. The plaintiff and Kelly took a position on this step of the front platform, for want of room elsewhere, and this, too, with the knowledge of the driver. Having gone one or two blocks, they, by the driver's direction, took out the gate, but could find no standing room on the platform. The driver then directed them to put the gate in place, and stand on the outside, and this order they obeyed, and were thus carried for a half mile before the accident. In short, the plaintiff was received as a passenger, and was by the driver permitted and even directed to take this position on the step outside of the gate, and it can- not be said that the plaintiff was, as a matter of law, guilty of contributory negligence. A passenger has no right to take a position, even at the direction of the serv- ant, which is obviously dangerous ; and in such case the direction of the servant will be no excuse. Standing on the step of the car cannot be said to fall within this principle. The danger of such a position is not so obvi- ous that it can be said a reasonable man will disobey the invitation or direction. The evidence of the plaintiff shows that he knew par- ties were constructing a sewer at Sarah street, and that he had seen this derrick in the street when passing to and from his work. The defendant's track had been moved over towards the derrick on the morning of the day of this accident. There is nothing in these circum- stances from which the court can say the plaintiff was, as a matter of law, guilty of contributory negligence in failing to see the derrick. There is also evidence tending to show negligence on the part of defendant. The track was placed in this IO STREET RAILWAY LAW. position near the derrick on the morning of the day of the accident, and the defendant must have known of its proximity to the cars. With such knowledge it became the duty of the defendant to use all reasonable care to avoid exposing passengers to danger, and especially is this so in view of the fact that passengers were allowed to stand on the side steps of the car. The defendant pleads as a defense an act which pro- vides: "Said railroad companies shall not be liable for injuries occasioned to persons by their getting on or off the cars, at the front of or forward end of the car." Surely the statute cannot and does not apply to a case like the one in hand, where the passenger, at the time of the injury, was not getting on or off, but was riding on the steps of the platform, with the knowledge and by the direction of the driver. (Supreme Court of Missouri. Seymour v. Citizens' Railway Company. 58 American and English Railroad Cases, 3^3. Sleigh Standing near Track — Care Required of Car Driver. Plaintiff was driving his milk sleigh; he stopped and took a can of milk from it into a sleigh standing along- side. Plaintiff's sleigh stood very near the track. As he was lifting the can out, with his horse headed towards the west, a two-horse car came from the west, and before he could put the can into the other sleigh, the car struck his sleigh, overturned it, and injured him. As he saw the car nearing his sleigh, he threw the can into the other sleigh and reached for his lines. He knew that the car was coming, and that it overhung the track, and that his sleigh was so close that it might be struck. The driver STREET RAILWAY LAW. if of the car saw plaintiff's sleigh, but drove on without making any stop. It was a question of fact for the jury to determine whether the plaintiff, under the circumstances, should have been out of the way when the car reached that point, or whether the accident occurred wholly by reason of the negligence of the driver of the car. He could have stopped his car and avoided the injury. If he saw the plaintiff could not get out of the way in time to avoid a collision, it was his duty to stop. It is contended by defendant's counsel that, by the ordinance by which the road is operated, the car is at all times entitled to the track. It is true that under this ordinance parties driving upon the street car track, or so close to it as to impede the progress of the car, are bound to turn out and give the car the right of way, but this ordinance does not give railway companies the right, by their drivers, to run any vehicle down and injure the person or property of another, under the circumstances stated in this case. The plaint- iff's claim was that when he did see the car coming, he made every effort possible to get out of the way. His sleigh was in full view of the driver, and if the driver saw that he could not get out in time, he should have stopped. Whether the plaintiff was guilty of negligence in remaining there the length of time he did, or in not having seen the car sooner, was a question for the jury. (Supreme Court of Michigan. Laethem v. Ft. Wayne & B. I. Ry. Co. 58 Northwestern Reporter, 996.) Duty to Signal Cars to Stop. — Boarding Front Plat- form. It is the duty of a person seeking to take passage on a street car to sig- nal the person in charge, and if, without signalling, he attempts to board a moving car, he cannot recover for the injuries thereby sus- tained. 12 STREET RAILWAY LAW. An attempt to board the front platform of a street car running at the rate of seven or eight miles an hour, is such negligence as will preclude recovery, and an in- struction to that effect is not prejudicial to a plaintiff who contends that the car slowed down in response to his signal, and that when he was about to jump on the rate of speed was suddenly increased, since if its rate was not reduced and the car was proceeding at its ordinary speed, there was no negligence on the part of the com- pany, and the injuries must have been sustained by the attempt to board a car moving so rapidly. (Washington Supreme Court. Woo Dan v. Seattle Electric Railway & Power Company. 58 American and English Railroad Cases, 195,) Boy Boarding Car — Damages for Wrongful Expulsion — Wilful Injury. A complaint for personal injuries to the plaintiff, a boy 13 years old, which set forth that, desiring to ride as a passenger on one of defend- ant's cars, he stepped upon the platform thereof, intending to enter and pay his fare, when the conductor, without cause or warning, wilfully and with great force threw him upon the street, while the car was running at great speed, does not state a cause of action for a breach of the con- tract of carriage, but sets forth facts constituting a cause of action for wilful injuries Inflicted by a servant acting within the scope of his employment. In such an action the plaintiff cannot recover upon proof of mere negligence, however gross, and he is not obliged to prove his freedom from negligence, as his right of recovery is solely for the wilful injury. In determining whether or not the injury was wilful, the jury may consider the other circumstances of the case, the manner of the conductor, the force, if any, used by him, and the effects of his acts, together with the presumption that every person intends the probable and natural consequences of his acts, and the unlawful STREET RAILWAY LAW. i,. intent may be inferred from conduct which shows a reck- less disregard of consequences and a willingness to inflict injury by purposely and voluntarily doing the act with knowledge that some one is in a situation to be unavoid- ably injured thereby. If the company's servant, in expelling the plaintiff, inflicted injuries complained of, in a fit of oppressive malice, or acted in such a manner as to indicate a heed- less disregard of consequences, plaintiff may recover exemplary damages. (Indiana Supreme Court. Citizens' Street Railway Company, of Indianapolis v Willoeby. 58 American and English Railroad Cases, 485.) Excessive Speed of Electric Car — Inattention of Motor- man — Horse Going on Track. An instruction that If the motor man in charge of a street car could, in the exercise of reasonable care, have seen the plaintiff in time to have checked his car, after plaintiff's horse sprang upon the track and before the car collided with plaintiff's horse, and if plaintiff was not guilty of negligence which contributed to his injury, then the defendant would be liable, held properly given, qualified as it was by an immediately pre- ceding instruction that if the injury resulted from the sudden fright of plaintiff's horse by reason of which said horse sprang in front of the moving car, and if the motorman, in the exercise of reasonable care, could not have checked the car in time to have prevented the collision, the defendant would not be liable, these alternatives presenting, as they did, the only disputed propositions of fact involved. Street railway companies have no such proprietary interest in that portion of the streets upon which their tracks are laid as limits the right of the general public also to use the same territory as a part of the public highway. Whether an injury resulting from such joint use is attributable solely to the negligence of the railroad H STREET RAILWAY LAW. company, or is wholly or in part imputable to coc tributary negligence of the person by whom injury ha been sustained, is a question of fact to be determined b the jury. (Supreme Court of Nebraska. Omaha Street Rj Co. v. Duvall, 58 Northwestern Reporter, 531.) Injury to Section Man — Riding on Car Stef. Where a section man of a street car company whos trains were drawn by a steam motor was ordered by th foreman to take passage on one of its trains and not t get on " so as to bother the passengers," the question c his contributory negligence in riding on the front plat form with his feet on the step is for the jury. A conversation between the plaintiff and the enginee of the motor concerning the situation the plaintiff tool on the front platform of the motor, was admissible t to show that the engineer knew of plaintiff's position. Plaintiff may recover for the injury to which hi negligence contributed, if defendant, knowing his posi tion, could have averted it by using ordinary care. Where plaintiff was injured by having his feet caugh between the step of the car and an embankment, th fact that he might have saved himself by stepping o the platform, does not show contributory negligence when he had very little time in which to act. (Supreme Court of Colorado. Denver, etc., Rapi Transit Co. v. Dwyer, 36 Pacific Reporter 1106.) STREET RAILWAY LAW. 1$ Bill to Enjoin Construction of Street Railway in Country Road. Under a bill filed by several complainants to restrain the construc- tion of a street railroad on the ground of alleged irreparable damage, only those grievances which are common to all the complainants are competent to maintain the bill ; special damages suffered by some of the parties are insufficient. The (act that a franchise granted by a township, for the construction of a street railway along a country road, authorizes the track to be laid near the side of the highway, instead of in the center, does not affect the validity of the grant. The use of " T " rails by a street railway company does not show an intention to construct an ordinary commercial railway. Grant J. : The defendant, is organized under Chapter 95 of Howell's Statutes, known as the Street Railway Act. Its purpose, as declared in its Articles of Association, was to "construct and operate street railways in and through the streets of the city of Detroit and the suburbs thereof, extending through the roads and streets of the townships of Hamtramck, Greenfield, Spring Wells, Grosse Pointe, Dearborn, Ecorse, Monguagen, the city of Wyandotte, and through the streets of the villages in said townships." In March, 1891, the township board of the township of Ecorse granted to it a franchise for constructing and operating such railway through the township over what is known as the Monroe and River Road. The rails were to be laid flush with the surface of the street, were to conform to the grade thereof, and to be so constructed as to least inconvenience or obstruct public travel. The space between the rails was to be kept in good condition, sufficiently hard and smooth to afford good ground for wagon travel, paved with cobble stones, or planked, or laid with crushed stone, at the option of the defendant. The track was to be laid in the center of the highway and so as to leave a driveway on each side at least fourteen feet wide. It was to be allowed to use either motor or l6 STREET RAILWAY LAW. electric power to propel its cars. It was at liberty to laj any approved street railway rail, except a " T " rail. In November following, the franchise was amended by the town board, permitting the company to construct its roads on the east side of the highway, the center of the railway to be within twenty-two feet of the east line of said highway, and the west rail to be eleven feet east of the center of said highway, to be determined by a survey made by a competent engineer at the expense of the company. The ends of the ties projecting outside the track adja- cent to that part of the highway used for public travel were to be filled and packed hard flush with the top of the ties, and the center of the track between the rails was to be ballasted flush with the rails as near as could be done without interfering with the safe running of cars. It was also permitted to use a " T " rail, so laid as to least inconvenience public travel, and at all road, farm and house crossings the tracks were to be planked flush, so as to leave no obstruction of the feet or wagon travel. These are all the provisions of the franchise which it unnecessary to mention. The Monroe road was an ordi- nary country highway, with ditches on each side of that portion provided for travel. The defendant was proceeding to construct its road when the complainants, eighteen in number, filed this bill, claiming irreparable damage to the property and praying that the defendant be enjoined from constructing it. The bill can be maintained only upon the theory that there is some grievance common to all resulting in a damage com- mon to all. The bill alleges, and there is evidence tend- ing to prove, grievances and damages special to one or more of the complainants. Such bill cannot be maintained, and we need consider STREET RAILWAY LAW. 1 7 only these objections to the road which are common to all. These are: i. That the franchise confers the right to construct an ordinary commercial railway, and that it is the intention to construct such road. 2. That the operation of the railway will irreparably injure the com- plainant's property. 3. That the defendant is pecuniarily irresponsible. Upon the filing of the bill a preliminary injunction was granted. An answer was filed denying that the defendant intended to construct a commercial railroad or any other than an ordinary street railway, such alone as it was authorized by the law to construct, and denying fully all the material allegations of the bill. Upon filing this answer the preliminary injunction was dissolved and the defendant proceeded to construct its road. At the time of the hearing the railroad had been con- structed and operated for a considerable time. For four months it used a motor. It then changed and equipped its road with the trolley system, with electricity as the motive power, and it is now the ordinary electric street railway, such as this court had held to be authorized by the law, and which may be constructed without proceed- ings to condemn the right of way. (Detroit City Railway Company vs. Mills, 96 Mich., 634. Dean vs. Ann Arbor Street Railway Company, 93 Mich., 330. People vs. Fort Wayne and Elmwood Street Railway Company, 97 Mich., 532.) The right to grant this franchise for the construction of a street railway such as this is, was conceded by counsel for the complainants upon the argument. Their chief complaint is, that it should have been laid in the center of the highway. We are cited to no authority holding that such railroad may not be located in any part of the public highway. It seems clear, that a road so l8 STREET RAILWAY LAW. located would better convenience public travel on a country highway, than if placed in the center of the traveled portion thereof. It is not seriously contended that this is not so, but that it is so near the frontage of some of the complainants' premises, as to interfere with the use thereof. The track may be so near the buildings of some of the complain- ants as to entitle them to a remedy, provided that they, themselves, have not encroached upon the public highway. The bill alleges that this highway varies in width from 44 to 60 feet. It is contended by the defendant that the road was laid out to a uniform width of 66 feet, and that 3uch complainants have unlawfully encroached upon it. We pass no opinion upon this, as it is a grievance common to but few of the complainants. The franchise especially and particularly provided for the construction of the road so as to afford proper ingress and egress, to the owners of adjoining lands. Where the highway is 66 feet wide, ample space is left between the tracks and the line of land abutting on the highway, for the construction of sidewalks, and all other necessary and convenient purposes. This is a compliance with the law, because no one is deprived of the use of the highway, or 3f ingress and egress to his property. The use of a " T " rail does not establish the com- mercial character of the road. The evidence shows that this rail can be used without serious trouble and incon- venience. The proofs establish these facts: (1) The substantial compliance with the provisions of the franchise. The road is constructed on the grade of, and flush with the highway, and was so done under the direction of the highway commissioner. The center between the tracks is filled as required. (2) The construction of this road is STREET RAILWAY LAW. 10 a great convenience to the public. (3) It has enhanced the value, to a great extent, of the lands situated along its line, including those of the complainants. (4) Its removal or disuse would result in an irreparable injury to the defendant and its assignee, which now owns and operates it. It is claimed that this case is ruled by Nichols vs. The Ann Arbor Street Railway Company, 87 Mich. 361. The distinction is so apparent, and will be so readily seen, upon a comparison of the facts of the two cases, that we refrain from comment upon them. The decree is affirmed with costs. Long, Hooker and Montgomery, J. concurred. McGrath, C. J. : I cannot concur with my associates in the conclusion reached herein. Defendant's track is supposed to occupy a portion of the roadbed ordinarily devoted to travel. If so constructed as to exclude the public from that part of the roadway used by it, complain- ants have a right to complain. Street railway use of streets or highways cannot be allowed to be exclusive. This railway is constructed upon a sandy roadbed with a T rail. One of the defendant's witnesses describes it as " a very deep sandy road." The roadbed was cut in some ' places, and in others filled. It is conceded that at certain points the top of the rail is below the surface of other portions of the road, so that a rain washes the sand upon the rail, and, as one of the defendants says, the rails have to be brushed off in order that the electric connection may be made. I think that it is the duty of defendant to restore the road to its former condition for the purpose of travel, and to so con- struct its road that the public shall not be excluded from that part of the highway. The only difference between the surface of this road 20 STREET RAILWAY LAW. as constructed at any point and that of the ordinary com- mercial road, is that the space between the rails and immediately outside of the tracks is filled in, not with gravel or cinders or some substance that will carry wagon wheels, but with sand, through which the wheels plough until they reach the rails. Under the statute requiring railroads to restore the highway the spaces between the tracks and for a short distance outside the tracks is planked or paved so as to admit of free passage over the tracks. It is contem- plated that the portion of streets and highways occupied by street railway tracks is to be used by the public with the other portions of the highway. I do not think that defendant should be allowed to maintain or operate the road until this objectionable feature has been removed. (Supreme Court of Michigan. Niemann v. Detroit Suburban Street Railway Company. Not yet reported.) Person Standing on Footboard of Electric Car — Injury by Pole. A trolley railway company should foresee the possible danger to which passengers on the footboards of its cars may be exposed by a slight movement of the body when trolley poles are placed from ten to twelve inches from the edge of the footboard. A passenger is not bound to anticipate the danger and be on the lookout for trolley poles, while riding with per- mission on the footboard of a street car, unless he has knowledge of the proximity of such poles to the track. It is not prima facie the fault of the passenger, where he is injured by riding on the footboard of a trolley car. (Rhode Island Supreme Court. Elliott v. Newport Street R. Co., 23. Lawyer's Reports Annotated, 208). STREET RAILWAY LAW. 21 Passenger Riding on Front Platform — Driver Striking Horse with Whif — Passenger Falling from Car. Where a passenger is injured by falling from the front platform of defendants' street car, he cannot recover damages merely on proof that the driver whipped his horses, and that they made a sudden plunge, which caused the car to lurch. While it is not negligence, as a matter of law, for a passenger to ride upon the front platform of a street railway car, yet a person who voluntarily so rides assumes the usual and ordinary dangers of his position. He is compelled to stand, and is not protected from the jolts and sudden movements of the car, except by the use of his eyes and hands. It is a matter of every-day life to see passengers riding on the front platforms of our closed street cars, and it is a matter of common sense that there is more danger in riding thereon, than inside the cars or on the rear platform. The driver of a horse car has to use his whip, and it is not negligence for him so to do, any more than it would be on the part of the driver of any other vehicle. The passenger on the front platform knows that the driver uses the whip, and is aware of the usual effect upon the horse. The animal, when the whip is used, starts suddenly and moves more rapidly. Such is the intention of the driver when he uses the whip. (City Court of Brooklyn. Cassady v. Atlantic Ave. R. Co., 29 New York Supplement 724.) 22 STREET RAILWAY LAW. Discrimination as to Rates. That feature of the contract between the city and the New Orleans & Carrolton Railroad Company, which exacts from the public a fare of ten cents from Carrolton to Canal street, except from actual residents above Napoleon avenue, who can, on certain conditions, make the trip for five cents, is not subject to attack as an unreasonable discrimi- nation prohibited by the lawe governing the obligations of common carriers. Plaintiff complains that he was illegally ejected from one of defendant's cars, for which he claims damages, and he prosecutes this appeal from a judgment which rejected his demand. The contract under which defen- dant obtained its present franchise was framed under the provisions of two ordinances of the city council of New Orleans, which contained the specifications under which the right of way was to be sold to the company, among which was the following : "Fare. The rates of fare from Canal street to the head of Jackson street and the Napoleon avenue station and points between shall be five cents, and five cents beyond Napoleon avenue station between the hours of 4 a. m. and 12:30 a. m., except to actual residents above Napoleon avenue, who shall have the privilege of purchasing through tickets at the rate of ten for fifty cents. The fare between 12:30 a. m. and 4 a. m. to be charged shall be ten cents to Napoleon ave- nue and ten cents from there to Carrolton." In compli- ance with that stipulation, the company procured tickets in bunches of ten each, which it has been selling exclu- sively to actual residents above Napoleon avenue. It appears that plaintiff, who does not reside above Napoleon avenue, obtained a bunch of such tickets from a person who was an actual resident above the street, and attempted to ride on one of those tickets from the corner of Second and St. Charles streets to Carrolton. At Napoleon avenue, where the change of cars is STREET RAILWAY LAW. 2% effected, he tendered for his fare thence to Carrolton one of the coupons of the tickets in question, which was refused by the collector, on the ground that he was not a resident above that avenue. Being called upon to pay the regular fare, and persisting in his claim to pay the same by means of the ticket, plaintiff was ejected from the car. The crucial point in the case is the contested right of the company to make the discrimination herein- above described, in favor of actual residents above Napoleon avenue, which is alleged to be unjust, unrea- sonable, and violative of the legal obligations of the defendant company as a common carrier. Hence the main relief claimed by plaintiff is a decree condemning the defendant to sell to him and other persons residing below Napoleon avenue tickets on the same terms and conditions which "are extended to actual residents above Napoleon avenue. It appears that the discrimination complained of does not emanate from the railroad company, but that it was imposed on it as a condition of its franchise, by the city. The leading feature of that stipulation is a limit of the maximum rate which the company can exact for fare between the points therein designated. Under its requirement the company cannot obtain a higher rate than ten cents between Canal street and Carrolton, or five cents between Carrolton and Napoleon avenue, and between Canal street and Napoleon avenue, or the foot of Jackson street and intervening points. Under our law touching the powers of the city of New Orleans, it clearly appears that the city is clothed with the full and exclusive power of granting franchises for the construc- tion, operation and running of railroads over its streets, as well as the power of fixing a tariff of rates to be enacted by all such corporations. But, conceding all 24 STREET RAILWAY LAW. these powers to the city of New Orleans, plaintiff con- tests the right of the city to make the discrimination complained of. In our examination of the numerous authorities in which unreasonable discriminations made by common carriers were rebuked and avoided, we find that none of the acts complained of had any direct or indirect legislative author- ity, but that they antagonized either the general or com- mon law governing the obligations of common carriers, or some special law applicable to the subject matter. The regulation which is here charged to be an unreasonable discrimination, far from being violative of a special law, is directly sanctioned by legislative authority. More than that, it is embodied in, and forms part of, a solemn authentic contract between the city and the defendant company. And the court is urged to cancel and abro- gate a contract which the city had the undisputed power to make, and in a proceeding in which it is not even a party. According to the contract, the established rate of charges for all persons, is ten cents between Canal street and Carrolton each way, the exception being in favor of actual residents above Napoleon avenue. Hence it fol- lows that if any unreasonable discrimination can be charged to the scheme, it must be attributed to the excep- tion and not to the general rule, and therefore the judg- ment rendered could not benefit plaintiff, but would materially injure a class of people which the city intended to protect. It was, unquestionably, within the discretionary power of the city council, in regulating the defendants' road, to consider that as the majority of churches, schools, banks, courts and other institutions were clustered in the neighborhood of the center of the city, and almost all below Napoleon avenue, it was sim- ply an act of justice to actual residents above Napoleon STREET RAILWAY LAW. 25 avenue, in the pursuit of their daily vocations, and for other equally necessary purposes, to enable them to reach the central portion of the city with the same facilities and at the same cost which were afforded to all other residents of the city. (Supreme Court of Louisiana, Forman v. New Orleans & C. R. Co., 4 Southern Reporter, 246.) [Note. — The doctrine of the foregoing decision has been reiterated in the recent ca6e of Robira v. N. O. & C. R. Co., Supreme Court of Lou- isiana, 14 Southern Reporter, 214. — Ed,] Track in Street — Grant by Property Owner. A grant to a street railroad of the right to lay a track on each side of the roadway, in a certain street, signed by plaintiff and the other owners of the property abut- ting on such street, does not authorize the company to lay its track outside the limits of the street, entirely on plaintiff's land, at a point where the street is too narrow to accommodate the tracks. (Supreme Court of New York. Curvin v. Rochester Railway Company. 78 Hun. 535.) Passenger Injured by Collision Between Street Car and Railway Car — Rights of Action. One injured by a collision between a locomotive of a railroad company and a street car, in which he was a pas- senger, may maintain a joint action against both com- panies, if the collision was produced by the neglect of the railroad company to give notice of the approach of the locomotive, concurring with the neglect of the street railway company to observe proper care in crossing the railroad track. Although such duties are diverse, and the neglect to perform each is separate and disconnected, yet, as the wrong doing of one company unites with that of the 2,6 STREET RAILWAY LAW. other, in causing the injury, the tort is joint, and one or both tortfeasors may be sued. (Supreme Court of New Jersey. Matthews v. Delaware, Lackawanna & Western R. Co., 22 Lawyer's Reports Annotated 261.) Transfer Ticket — Mistake of Conductor — Expulsion of Passenger from. Car — Liability of Company. The action is to recover damages for an alleged assault upon the plaintiff while a passenger in one of the defend- ant's cars. The plaintiff took passage upon an Exchange street car, going to what is known as the " Four Corners," where he desired to take a West avenue car, paid his fare, asked for and received a transfer for that car. The plaintiff, at the Corners, boarded a West avenue car, and, when he presented the transfer ticket to the conductor, the latter refused to receive it, for the reason that it was past the time within which it was available, and asked the plaintiff to pay his fare; and on his refusal to do so or leave the car, the conductor took hold of the plaintiff to remove him from it, but before it was accom- plished he paid his fare and was permitted to continue in his seat. The conductor gave the plaintiff a transfer ticket, which purported to be good until 5 140 p. m. It was more than an hour after that time when he boarded the West avenue car. There is some conflict in the evidence as to the time the plaintiff got on the Exchange street car, but the jury were permitted to find that it was then 6.40 p. m., and as the passage of the car to the " Four Corners " only occupied two minutes, it must be assumed that the difficulty arose from the mistake of the conduc- tor in attempting to indicate b} T his punch mark the time within which the plaintiff could continue his passage on the West avenue car. The conductor thus made it STREET RAILWAY LAW. 27 appear that the plaintiff was not entitled to do it upon such transfer slip; and, in the observance of his instructions it was the duty of the conductor to whom it was offered to refuse to accept it and to require the plaintiff to pay his fare. The question is whether or not the plaintiff is entitled to the relief which he seeks by this action. While it is conceded that he may have his remedy for breach of the contract, it is urged on the part of the defendant that he has no right of action for the cause alleged, because the defendant had provided suitable regulations for the management of the business of con- veying passengers, and the transfer of them from one to another line of its road so as to give to them the con- tinuous passage on payment of a single fare as provided by the statute. This question has seemingly been one of diverse views of judicial writers. Among the cases in which the actions founded upon principle similar to that of the plaintiff's proposition in the present action, have been sustained, are the following: Palmer v. Railroad Co., 3 S. C. 580; Burnham v. Ry. Co., 63 Me. 298; Ry. Co., v. Fix, 88 Ind. 381; Murdock v. Rd. Co., 137 Mass. 295 ; Head v. Ry. Co., 79 Ga. 358; Rd. Co., v. Riley, 68 Miss. 765. And of the cases tending to hold to the contrary, are : Yorton v. Ry. Co., 54 Wis. 234; Fred- erick v, Rd. Co., 37 Mich. 342; Bradshaw v. Rd. Co., 135 Mass. 407. The latter case, and that of Murdock v. Rd. Co., supra, may be distinguished by the fact that the famil- iarity of the plaintiff in the Bradshaw case with the practice of the company and the checks used by it, was such, that by inspection he would have observed that he had not received the one suitable to his purpose ; while, in the other case, the plaintiff was assured by the ticket seller that the ticket entitled him to passage to his place of destination. In the present case the plaintiff was 28 STREET RAILWAY LAW. advised by the transfer ticket that it permitted him to take a West avenue car, and that he must do so within ten minutes, but he did not understand what was the meaning of the punch mark, which was intended to advise the conductor of that car of the time the transfer slip was issued. It must be assumed on the evidence, that the plaintiff took the first West avenue car that left the Corners after he reached there, and that he so informed the conductor. The plaintiff was given, by the statute, the right to a continuous passage to his place of destination on payment of the single fare, and it cannot be said that it was by any fault or neglect on his part that the right was denied to him. It is a general rule that a carrier of passengers is answerable for all the con- sequences to a passenger of the willful conduct or neg- ligence of the persons employed by it in the execution of the duty it has assumed towards him. The defendant had, by its contract with the plaintiff, undertaken, for a consideration paid, to carry him to his place of destina- tion, and pursuant to it, he had the right of passage and as between him and the defendant he was at liberty to refuse to repay his fare, and to insist upon having his continuous passage. In violation of that right, the defendant, by its conductor, proceeded to forcibly eject him from the car in which he was rightfully seated as a passenger. Although the conductor personally may have been justified by his instructions to do so, the defendant was put in the wrong by the act of the other conductor, and was no more justified in the attempted act of ejection, than it would have been if he had at the time, had and presented the evidence of his right to remain as a passenger in the car without further pay- ment. (Supreme Court of New York. Muckle v. Rochester Ry. Co. 29 New York Supplement 732.) STREET RAILWAY LAW. 2g Interference -with Use of Street by Street Railway. If the construction of an additional track for a street railway company would be an unnecessary obstruction to and interference with the ordinary use of the street, and the track privileges of an existing railroad company are sufficient for the business of two or more companies, they should all be obliged to use them in common ; and an injunction to prevent the laying of an additional track may be granted to abutters. In delivering the opinion of the court, Bartch, J., said: "The rights of access, light, and air, constitute the prin- cipal values of such property, and it must be presumed that when lots are sold the grantees purchase them with a view to the advantages and benefits which attach to them because of these easements. The right of the grantee to their use is precisely the same as his right to the property itself. Such privileges are easements in fee — incorporeal hereditaments — and form a part of the estate in the lots. They attach at the time the land is platted and the lots are sold, and will remain a perpetual incum- brance upon the land burdened with them. It follows that, when land is platted by the owner of the soil, and lots sold, bounded by a street designated and marked on the plat, the grantee acquires a right to the street in front of the premises as a means of access, (i Hare, Const. Law, 376; Lewis, Em. Dom. Sec. 114; Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146; Wyman v. New York, 11 Wend. 487; Child v. Chappell, 9 N. Y. 246; Schulte v. North Pacific Transp. Co. 50 Cal. 592; Denver v. Bayer, 7 Colo. 113.) " Nor does it matter, in this case, that the fee is in the city in trust for the use of the public, instead of in the abutting owner in trust for street uses. Equally in both cases the abutting owners are entitled to the use of the 30 STREET RAILWAY LAW. street as a means of access to their lots, and for light an air. If the fee is in the city, the rights of the abutter ar in the nature of equitable easements in fee; if in th abutter, they are in their nature legal. In either cas the abutters have the right to have the street kept ope; and not obstructed so as to interfere with their ease ments, and materially diminish the value of their property When the lots of plaintiffs were sold under the town sit act, above mentioned, it was, in effect, agreed with th grantees that they were entitled to the use of the stree as a means of ingress, egress, light, and air. Thes rights were inducements to purchasers, became a part c the purchase, are appurtenances to the land which can not be so embarrassed or abridged as to materially inter fere with its proper use and enjoyment, and they are, ii effect, property of which the owners cannot be deprive! without due compensation. By implication, at least, th grantees also assumed additional burdens, for they mus contribute of their own funds for the expense of sewei gas, and water connections, and as well towards the cos of sidewalks, paving, and in sprinkling in front of thei lots. These are expenditures which devolve upon then as abutting owners, and, in addition to the relation o their lots to the street, give them a special interest in thi street in front of their premises, distinct from that of thi public at large. Assuming such burdens, they may o right make any and all proper uses of the street, subjec to proper and reasonable municipal control and polio regulations. (Lewis, Em. Dom. Sec. 115; 2 Dill. Mun Corp. 4th ed. Sees. 556a, 556b; McQuaid v. Portland 6 V. R. Co. 18 Or. 237; Haynes v. Thomas, 7 Ind. 38 Story v. New York Elev. R. Co. supra.) " The right of municipalities to grant franchises to pri vJ*te corporations for the construction and operation o STREET RAILWAY LAW. 3 1 street railways, when empowered by the legislature so to do, is not now, it seems, an open question, althougn streets were originally not designed for that purpose, but were mostly confined to the right of public travel in the ordinary modes. Enlightened public policy, advanced civilization, and a desire to subserve public interest, have induced courts to become more lax in the enforcement of strict technical rules and principles in this regard, and it appears now to be well settled by judicial authority that a reasonable portion of a street may be devoted for the purposes of a street railway, and that such is a proper use of the street. " Counsel for appellant contend that, subject to special constitutional restrictions, the legislature has plenary power over all public ways and streets. If this position be tenable, then, in the absence of special constitutional restrictions, the legislature may authorize municipalities to devote the entire width of a street to railroad uses, regardless of the property rights of abutting owners, without compensation for injury to their property. This theory does not appear to.be sustained by the authorities. The legislature may delegate power over streets to municipalities, but in doing so it must recognize the property rights of private individuals. Judge Dillon, in his work on Municipal Corporations (vol. 2, sec. 656a), speaking of the nature of streets and legislative control, says : ' Public streets, squares and commons, unless there be some special restriction when the same are dedicated or acquired, are for the public use, and the use is none the less for the public at large, as distinguished from the municipality, because they are situate within the limits of the latter, and because the legislature may have given the supervision, control and regulation of them to the local authorities. The legislature of the state represents 32 STREET RAILWAY LAW. the public at large, and has, in the absence of speck constitutional restraint, and subject (according to th weight of more recent judicial opinion) to the propert rights and easements of abutting owners, full an paramount authority over all public ways and publi places.' It will be observed that the learned autho distinctly recognizes 'the property rights and easement of abutting owners,' and, subject to these, the legislatun • has full and paramount authority over all public way and public places.' Up to within a comparatively recen date, the current of judicial opinion drew a distinctioi between cases where the fee was in the abutting owner subject to street uses proper, and those where the fei was in the municipality in trust for the use of the public In the latter class of cases it was uniformly held that th< power of the legislature to authorize the construction o a railroad on the street of a city was paramount, and tha it could delegate such power to the local authorities. O the exercise of this power the abutting owner could no complain, and had no right to compensation for injury ti his easement caused by the appropriation of the street ti such purposes. In the former class of cases he wa entitled to compensation for the injury sustained by sue) appropriation. The case of Indianapolis, B. & W. R Co. v. Hartley, 67 111. 439, 16 Am. Rep. 624, support this view. Mr. Justice Scott, in deciding the case, said 'A distinction has been taken where the municipality granting the right to lay the track owns the fee in thi streets, and where the fee remains in the abutting owner and it seems to us that it rests on sound principle, and i supported by the highest authority.' That case wa decided in January, 1873, an ^ such, it must be conceded was the weight of authority at that time. Then the case; turned upon the question whether the fee was in th< STREET RAILWAY LAW. 33 public or in the abutter, in many of them without close inquiry as to the exact limitation of the fee; and it was almost universally held that if the fee was in the abutter, the legislature could not authorize a private corporation to construct a railroad on a public street without com- pensation to the abutter, and likewise it was almost universally held that, if the fee was in the public, the legislature could authorize the street to be used for such purpose without compensation to him. Since then the whole subject has undergone deliberate reconsideration, and the weight of recent judicial decision seems to abrogate the distinction, and treat the easements of abutting owners as property rights, forming part of the estate in the' property, except in cases where the public owns the absolute fee of the street, and the fee is not limited to street uses proper. In such cases the tendency is still to hold that the legislature, in the absence of special constitutional restraint, may authorize a railroad company to use the street of a city for its road- bed without compensation to the abutter. It might be observed, however, that even in this class of cases there seems to be no just or satisfactory reason why such a use of a street, which is specially beneficial to the grantee of the franchise, and causes a special injury to the abutter, should be within the absolute control of the legislature, without regard to the property rights of the abutting owner. Speaking of the nature of public streets, and of the rights of the abutter and of the public, Judge Dillon (Mun. Corp. sec. 656a) observes : ' The full conception of the true nature of a public street in a city, as respects the rights of the public on the one hand and the rights of the adjoining owner on the other, has been slowly evolved from experience. It has been only at a recent period in our legal history that these two distinct rights 34 STREET RAILWAY LAW. have, separately and in their relations to each other, come to be understood and defined with precision. The injustice to the abutting owner, arising from the exercise of unrestrained legislative power over streets in cities, was such that the abutter necessarily sought legal redress, and the discussion thence ensuing led to a more careful ascertainment of the nature of streets, and of the rights of the adjoining owner in respect thereof. It was seen that he had, in common with the rest of the public, a right of passage. But it was also further seen that he had rights not shared by the public at large, special and peculiar to himself, and which arose out of the very rela- tion of his lot to the street in front of it; and that these rights, whether the bare fee of the street was in the lot owner or in the city, were rights of property, and, as such, ought to be, and. were, sacred from legislative invasion as his right to the lot itself.' In support of this view of the question, he cites, among numerous other cases, Story v. New York Elev. R. Co. supra, which is the leading recent case in New York on this subject. In this case Justice Danforth, after an elaborate and exhaust- ive review of the authorities, concludes: 'In whatever way, therefore, we view the plaintiff's case the result is the same — a right of property in the street, with which, until properly appropriated and compensation made, the defendant cannot intermeddle.' (2 Dill. Mun. Corp. sec. 704; Lahr v. Metropolitan Elev. R. Co., 104 N. Y. 268; Florida Southern R. Co. v. Brown, 23 Fla., 104; Mahady v. Bushwick R. Co., 91 N. Y., 148, 43 Am. Rep. 661; Burlington & M. R. R. Co. v. Reinhackle, 15 Neb., 279; Cincinnati & S. G. A. R. Co. v. Cumminsville, 14 Ohio St., 523; New York Elev. R. Co. v. Fifth Nat. Bank oi New York, 135 U. S., 433, 34 L. ed. 232; St. Paul & P, R. Co. v. Schurmeier, 74 U. S., 7 Wall. 272, 19 L,. STREET RAILWAY LAW. 35 ed. 74; Theobold v. Louisville, N. 0. & T. R. Co., 66 Miss. 279, 4 L. R. A. 739)." (Supreme Court of Utah. Block v. Salt Lake Rapid Transit Co. 24 Lawyers' Reports Annotated. 610). Death of Infant — Negligence of Parent — Duty of Driver. A mother who, while talking to friends at the door, leaves her child, twenty month's old, in the kitchen, and allows it to pass her, cross the sidewalk, and go 28 feet to a street railway track, where it is killed in her immed- iate view, without knowing that it is her child until after the accident, is guilty of negligence which will preclude recovery by her for its death. A driver of a street car is not -per se guilty of negli- gence in momentarily looking to the sidewalk to see whether persons standing thereon desire to get upon the car. (Supreme Court of Pennsylvania. Johnson v. Read- ing City Passenger Railway Co., 160 Pa., 647; 28 Atlan- tic Reporter, 1001.) Railroad in Street, Carrying Freight as -well as Passengers. A railroad operated in a city street imposes no greater burden on the soil and gives no greater right to abutting property owners by carry- ing freight than by carrying passengers only. The court said : A " street railway " has been defined as " a railway laid down upon roads or streets for the purpose of carrying passengers." Elliott, St. R. Rs. 557. It is further said by the same author that "the distinctive and essential feature of a street railway, considered in relation to other railroads, is that it is a railway for the transportation of passengers, and not of freight." It is said to exclude the idea of the carriage of freight, and that a railroad over which heavily laden freight trains are drawn cannot be considered a street railway. Street 36 STREET RAILWAY LAW. cars are little more than carriages for transportation c passengers, propelled over fixed tracks, to which thei wheels are adapted, and as a convenient, comfortable and economical mode of conveyance, their use ha become well-nigh universal in cities, and as they adc when properly constructed, little or nothing to the bui dens of the servient tenement, their use is uphel without the necessity of compensation to the abuttin, owner. The use of a public street, however, for a ordinary railway for the transportation of freight an passengers, it has been said by the highest authority imposes a new burden upon the street, not contemplate in its dedication, and therefore the user cannot b indulged without compensation to the abutting owner c property upon such public street. We are at a loss fo any good reason for this distinction, or to see why th transportation of freight by modern and improve' methods is not equally entitled to encouragement wit the transportation of passengers. The essential wants c the citizen demand the former equally with the lattei If there is any difference in the burden imposed upon th street, it is in degree and not in kind. The great high ways of England were constructed, not so much for th convenience of passengers as for the transportation c freight. In the infancy of commerce, when trade an traffic by land was insignificant in volume, when th sumpter horse, which answered to our modern pad mule, answered all the purposes of transportation fo goods, footpaths, bridlepaths and lanes served all needei purposes; but with the growth of inland commerce, an the need of greater facilities for the interchange of com modities, the use of wheeled vehicles, and, as a mean thereto, the highway, as we know it, became a necessity The Appian Way, commenced 312 B. C, which ha STREET RAILWAY LAW. 37 yLdvoked the admiration of the world, was entitled to commendation for its roadway sixteen feet in width, con- structed for the transportation of burdens, while the paths of eight feet on each side of it for foot passengers, and upon which the Roman legions were wont to march, were unpaved. In the construction of modern highways, urban and suburban, the great difficulty and the promi- nent object has been to build and adapt them, by grade, width, and structure of roadbed, to the carriage of freight. Yet we are told in effect that, so far as modern methods are concerned — so far as ease, speed and economy are involved — improvements are to be limited to the trans- portation of passengers; that cars with wheels adjusted to move upon fixed tracks, when applied to the transpor- tation of passengers, are within the contemplated objects in view in opening a road or street, and therefore add nothing material to the burden of the servitude of the abutting landowner, while a precisely similar structure, adapted to the transportation of freight, adds an additional burden, of a different character, to the servitude, and cannot be tolerated without compensation to the abutting owner. An interminable string of heavy drays may thunder through the street from early morning until set of sun, a menace to all who frequent the thoroughfare, and an inconvenience to all dwellers thereon; but the cars of a railway, which move usually but a few times a day, and with infinitely less annoyance to the public, upon tracks so adjusted to the surface as to occasion little or no inconvenience, cannot be tolerated. We fail to appre- ciate the philosophy of the distinction. On the contrary, we affirm that when a public street in a city is dedicated to the general use of the public, it involves its use, sub- ject to municipal control and limitations, for all the uses and purposes of the public as a street, including such 38 STREET RAILWAY LAW. methods for the transportation of passengers and freight as modern science and improvements may have rendered necessary, and that the application of these methods, and indeed of those yet to be discovered, must have been contemplated when the street was opened and the right of way obtained, whether by dedication, purchase or condemnation proceedings, and hence that such a user imposes no new burden or servitude upon the owner of the abutting land. The object of the user being within the conceded rights of the public, the methods of its accomplishment are subject to legislative control, and subject, also, to an action for damages by any abutting owner, whether or not he may be vested with the fee to the center of the street, whose right of ingress and egress, or his right to light and air, shall be interfered with. The thirteenth subdivision of section 862 of the Muni- cipal Government Act of this state authorizes the boards of trustees of municipalities of the sixth class, of which Santa Ana is one, "permit, under such restrictions as they may deem proper, the laying of railroad tracks and the running of cars drawn by horses, steam or other power thereon ... in the public streets." The world moves. Legislation in recent times has kept pace with the progress of the age. The trend of judi- cial opinion, except where overshadowed and incrusted with stare decisis, is to a broader and more comprehen- sive view of the rights of the public in and to the streets and highways of city and country; and, while carefully conserving the rights of individuals to their property, the courts have not hesitated to declare the shadowy title which the owner of the fee holds to the land in a public street or highway, during the duration of the easement of the public therein, as being subject to all the varied STREET RAILWAY LAW. 39 wants of the public, and essential to its health, enjoyment, and progress. In Paquet v. Mt. Tabor Street R. Co., 18 Or. 233, which was an action to enjoin a steam motor railway company from constructing and operating its road upon a street in the city of Portland and upon a county road outside the city, abutting upon both of which the plaintiff owned land, with the fee in him vested to the center of the street and road, and where no compen- sation had been made to plaintiff, the court in its opinion, by Thayer, Ch. f., in deciding the cause against plaintiff, said: "The establishment of a public highway practically divests the owner of a fee to the land upon which it is laid out, of the entire present beneficial interest, of a pri- vate nature, which he has therein. It leaves him nothing but the possibility of a reinvestment of his former interest in case the highway should be discontinued as such. This view, I am aware, is contrary to the ancient doctrine that the owner of the fee owned the land subject only to such public uses, and that he had a right of action when the use was diverted to a different purpose. Such a doc- trine may have been applicable where the ownership was merely subject to a right of way over the land; but where, as in modern cases, it is devoted exclusively to the purposes of a public thoroughfare, and the control thereof is committed to legally constituted authorities charged with the duty of maintaining it for such purpose, the doctrine becomes a vague theory, and should be laid away among the antiquities of the past age." Mc£>uaid v. Portland & V. R. Co. 18 Or. 237, enunciates a like doctrine. In Henry Gaus & Sons Mfg. Co. v. St. Louis, K. & N. W. R. Co., 113 Mo. 308, 18 L. R. A. 339, the supreme court of Missouri held, in substance, that the construction and operation of an ordinary steam railroad at grade in a public street under municipal authority is 40 STREET RAILWAY LAW. not a new public use of the street, for which compensa- tion may be demanded by abutting owners, as in the case of property " taken or damaged," within the meaning of the constitution. The court said: "When land is dedi- cated generally, and without restrictions, or condemned, for a public street, in a town or city, the owner of the abutting lots, who secures the benefit of the street, and persons also who purchase and improve property thereon, hold their property rights subject to all the uses to which the street can be lawfully subjected by the public. New uses in the improvement in the mode of travel and trans- portation are constantly arising. When there is no restriction on the public use, new modes of use may be adopted, which are consistent with the proper use of the street, without the consent of abutting owners, though such new use may interfere somewhat with their own convenient use of the street." (Supreme Court of California, Montgomery v. Santa Ana & Westminster R. Co., 25. Lawyer's Reports Annotated 654.) Alighting from Electric Car at other than regular stop- ping place. Failure to warn passengers. A passenger on an electric car is not guilty of negli- gence as a matter of law in alighting before the car has reached its usual stopping place, where it has come to a full stop, no warning not to alight is given, the appear- ance of the surroundings are such as to indicate that the stop is made for that purpose, and substantially all the passengers alight. It is not negligence as a matter of law for a passenger on an electric car to alight on the inside of a loop used for turning the car around without reversing or switch- ing, where such passenger has previously been helped STREET RAILWAY LAW. 4 1 off the car by the conductor inside the loop, the car is so constructed that passengers may alight from either side, and no warning or notice is given to the passengers to step off only on the outside of the loop, and the cars are crowded with passengers and as soon as some alight others take their place. (Supreme Court of Michigan, Poole v. Consolidated Street R. Co. 59. Northwestern Reporter 390.) Injury to Child — Negligence of Parent — Avoidable Acci- dent. Recovery may be had by parents for the killing of their child under the age of two years by the negligent operation of a street car, although the mother was guilty of negligence in allowing the child to be upon the street, where its death could have been avoided by the exercise of ordinary care upon the part of the driver. (Supreme Court of Missouri. Czesewzka v. Benton- Bellefontaine R. Co. 25 South Western Reporter, 911.) Failure of Driver to Watch Horses — Runaway Team — Injury to Passenger. A street railway company is liable where its driver negligently leaves the horses attached to a street car unhitched and without any one to hold them during his temporary absence, so that they become frightened and start to run away, causing a passenger to apprehend danger and attempt to get off the car, where she falls and sustains personal injuries. (Texas Civil Appeals Court. Texarkana Street R. Co. v. Hart. 26 South Western Reporter, 435.) Standing on Platform of an Electric Car — Contributory Negligence. Contributory negligence cannot be predicated, as a /J.2 STREET RAILWAY LAW. matter of law, of the act of a passenger upon an electric car in standing on the platform of the car, where there is evidence tending to show that the car was crowded at the time and that there was no room for him on the in- side. (Appellate Court of Indiana. Marion Street R. Co. v. Shaffer, 36 North Eastern Reporter, 861.) Distance Between Tracks on Curve — Injury to Employe — Assumption of Risk. A street car company has the right to construct its tracks leading out of a car shed so close together and so curving in opposite directions that the ends of two oars standing on such curves will come together, and is not liable to an employe having his leg crushed between two cars, who knows, or ought to know, of the danger, although it would have been safer to have placed the tracks further apart. An employe in a street car stable and car sheds assumes the obvious risk of having his leg caught and broken between the ends of two cars on curves leading out of the shed in opposite directions, as one of the cars being taken out is swung against the end of another standing on the other curve, at a point where the tracks are close together, although he did not in fact know or appreciate the danger, where he has had ample oppor- tunity to observe it. The fact that the risk of an employe's being caught between two street cars at a point where the tracks lead- ing out of the car sheds were close together was increased during his term of employment by the use of longer and wider open cars, will not render the street car company liable to him for injuries thus received, where he con- STREET RAILWAY LAW. 43 tinued in the employment without protest or promise of change, thereby accepting the additional obvious risk. (Supreme Court of Massachusetts. Goldthwait v. Haverhill & G. Street Railway Co. ; 36 North Eastern Reporter, 486.) 'Joint Negligence of Street Car Company and Railway Company — Injury to Street Car Passenger. A passenger in a street car, who sustains injury to which the negligence of the street car company and a railroad company, over whose track the car was passing, contributed, may recover of either company . (Supreme Court of Iowa. Douglas v. Sioux City Street Railway Co.; 58 North Western Reporter, 1070.) Duty to Look and Listen before Crossing Track of Elec- tric Railway. Where a person about to cross an electric street railway track on foot looks only in one direction for a car, and is struck by a car which he could have seen coming from the opposite direction If he had looked, he Is guilty of contributory negligence. The Court said : " While pedestrians have the right to be upon and travel along the public highway, yet they are bound to take notice of the dangers incident to the public travel thereon, and especially is this so where street cars are constantly passing and repassing, driven with electricity. The city authorities recognized the necessity of rapid transit, and limited the cars upon the street to 15 miles per hour. These cars are heavy, laden with motors, and they cannot at once be stopped. They have no right to run down pedestrians, but those in charge have a right to suppose that pedestrians will not walk onto the track without looking to see if a car is coming. It is well known that these crossings are places of danger, and that cars do not stop at every crossing. 44 STREET RAILWAY LAW. Here the custom was to stop on the opposite crossing from where the plaintiff was. Plaintiff had lived in that vicinity for many years, and knew of the constant going and coming of these cars, and he was bound to know that the crossing was a place of danger. He was bound to look both ways before getting on the track. It will not do to say that he acted prudently and carefully in looking before getting off the curb, and was therefore not bound to look again, because he saw no car coming from the north at that time. A car running 15 miles an hour would pass a great distance while a pedestrian was going 13 feet 10 inches. The plaintiff was bound to look before stepping upon the place of danger. " In Gardner v. Railroad Co., 97 Mich. 240, it was held that a traveler was guilty of negligence in not looking in the proper direction for an approaching train, by which he was injured. It appeared in that case that when within 5 feet of the track, if he had looked, his view would have been unobstructed for 250 feet in the direc- tion from which the train approached. In Haight v. Railroad Co., 7 Lans. 11, a woman on foot approached the defendant's tracks on Bridge street, in the village of Amsterdam. This street crossed three tracks at right angles. Her attention was fixed upon a train passing over the third track. She passed over the first track in the rear of some freight cars. Here she looked up the second track, but, on account of the freight cars, could not see very far. Then, in passing over the seven feet between the first and second tracks she looked at the rear end of the train which had just passed over the third track, but did not look along the second track after she left the rails of the first, and, reaching the second, she was struck by a train on that. It appeared that in the seven feet between the first and second tracks she STREET RAILWAY LAW. 4$ could have seen the approaching train for several hundred feet. She did not once look down that track, but kept her eyes upon the train upon the third track. This was held to be contributory negligence as matter of law. The Supreme Court said: 'It is therefore quite plain that if the plaintiff had looked in the right direction as she was about leaving the first track, she must have seen the approaching train. There was no obstruction in the way, and that she did not see or hear the train which was coming when she stepped on the track was owing to the fact that she did not look in the direction from which it came. * * * She neglected to look in the right direction.' This case was cited with approval by the Court of Appeals in Salter v. Railroad Co., 75 N. Y. 279. It is said by counsel for plaintiff that, while this may be the rule in regard to steam railways, it cannot be applied to street railways. In Carson v. Railroad Co., (Pa. Sup.) 23 Atl. 369, it was held that failure to look for approach- ing cars on the part of one about to drive across the tracks of an electric street railway company is such con- tributory negligence as will prevent his recovery for injuries received by colliding with a car. The Court said: "If, by looking, the plaintiff could have seen, and so avoided an approaching train, and this appears from his own evidence, he may properly be non-suited." In Ward v. Railway Co., (Sup.) 17 N. Y. Supp. 427, it appeared that plaintiff's intestate was fatally injured while attempting to drive across a street railway track. There was evidence that at any time before reaching the track, deceased, by a glance, could have informed himself of the approach of the car, but that he drove onto the track without looking in either direction. It was held that he was guilty of contributory negligence. In Creamer v, Railway Co., 156 Mass. 320, the supreme court of tnat ^6 STREET RAILWAY LAW. state held that where a person stepped from a horse ca: at the junction of two streets, and immediately started t< cross the track of an electric road, without looking o: listening, and was run over by the electric car running at the rate of 15 miles an hour, there could be no recov ery, because the deceased was not exercising due care " We see no more reason for applying the rule that on< must look and listen before crossing the tracks of a stean railway than that one must look and listen before crossing a street car track upon which the motive power is eleo tricity or the cable. In this state it is well settled tha persons passing over railroad crossings must exercise care. They must look and listen, and under certain cir- cumstances, must stop, before attempting the crossing Electric street car crossings are also places of danger The cars are run at great speed on this street in question The city ordinance permits it, and the rule must be that, before going upon such tracks, every person is bound tc look and listen. If the view is unobstructed, and the pedestrian takes this precaution, there is not much oppor- tunity for him to be injured. It will not do to say that he has discharged his responsibility in case of an accident, by looking when some feet away, for he may miscalcu- danger, he must look just before he enters upon the late the distance, and the speed of the car. To avoid track This was the rule laid down by this court in Houghton v, Railroad Co. (Mich.) 58 N. W. 314. The uncontradicted evidence shows that the car was lighted with five electric lights inside, and carried the signal lights required by the ordinance. Others saw these lights, and it does nol seem to be disputed that, had the plaintiff looked jusl before going upon the track, he would have seen the car. (Supreme Court of Michigan, McGee v. Consolidate^ Street R. Co., 60 N. W. Rep., 293.) STREET RAILWAY LAW. 47 Where one had alighted from another car, it wa» held that failure to look before crossing the track was not contributory negligence. (Omaha Street R. Co. v. Lothneiseii, 58, North Western Reporter, 535. See also Boerth v. West Side R. Co., 58, North Western Reporter, 376).-Ed. Starting Car before Passenger is Seated — Injury to Passenger — Duty of Company. " We are strenuously urged with able and ingenious argument to enunciate in this case a new rule of law based upon the imperative demand of the public for rapid transit. If, we are told, street cars are not to start until passengers are seated, it is manifest that much more time than is now occupied will be consumed in going to and fro in the city. We have no doubt of this. We recognize the wish of the public and the effort of defendant to sat- isfy it. Nevertheless the rule remains that common car- riers, while not insurers of safety, are, so far as human care and foresighf can go, in ways consistent with the nature of the business to be done, to provide for the safety of passengsrs : (Hutchison on Carriers, Sec. 498.) " If, then, it is asked, the starting of a car before the passenger has reached the seat is necessary in order to reach destinations at the time demanded and promised, must the company respond in damages to one who, by such starting, is thrown down and injured? Not if human care and foresight could not have prevented such injury, it may be answered. But has the defendant established in this case that by no human prudence it could have saved the plaintiff from falling? Is it not reasonable to believe that if the defendant has placed in its car a ser- vant whose sole duty it was to assist passengers to seats and to keep them from falling until seated, the accident now under consideration would have been avoided? Whether these or any other means for safety were practi- cable is not for us to say; it is sufficient for the purposes /J.8 STREET RAILWAY LAW. of this case that appellant has not shown that it did a that consistency with its business, human foresight am care could have done to insure plaintiff's safety." (Appelate Court of Illinois; West Chicago Street Rail way Co. v. Craig, 27, Chicago Legal News, 218.) Buggy on Car Track — Duty to Stop Cable Car — Jjhtes tionfor Jury. Whether a cable car was run closer to a buggy on tb track than was prudent, and whether there was negli gence in failing to stop it to allow the buggy to leave tb track, is a question for the jury. Whether a person driving on a street car track coul< have left it more expeditiously than he did and by si doing have avoided an injury received from the car is i question for the jury. It is not necessarily negligent for a -cable car to follov after a buggy which is seen upon the track, when run ning slowly enough so that it can be stopped in time t< avoid a collision. (Supreme Court of Missouri; Hicks v. Citizens R. Co. 25, Lawyers' Reports annotated, 508.) Collision of Street Car and Steam Car — Injury to Pas senger on Street Car. A street car company is liable for an injury to a pas senger on one of its cars who is not guilty of any negli gence, caused by a collision with a steam railroad train where it was the duty of its servants to go forward upoi the tracks of the railroad company at a crossing, to 1 position where they could ascertain whether or not th< cars of the railroad company were approaching the cross ing, and they failed to do so. (Appellate Court of Illinois. West Chicago Stree STREET RAILWAY LAW. 49 Railway Co. v. Martin, 47 Illinois Appellate Court Reports 610.) Conditions in Street Railway Ordinance — Right of City to Repeal. A city has the legal right and authority to impose such terms and conditions as it deems best for the interest of the public, under the express provisions of 111. Act July i, 1874, chap. 66, § 3, upon permitting a street railroad to be laid in its streets. A city which passes an ordinance granting to a street railway company the right to use its streets for rail- way purposes upon conditions affecting the operation of the road after its proper construction, and requir- ing it to keep the streets and tracks in proper repair, cannot reserve the legal right to repeal such ordinance on the failure of the company to comply with such conditions, on its own adjudication, without applying to the courts. (Appellate Court of Illinois. Citizens Horse Railway Co. v. Belleville, 47 Illinois Appellate Court Reports 388.) Failure to Provide Seat — Duty to Passenger Riding on Step— Sudden Starting of Car. The employes of a street car company are bound to exercise greater care where a passenger is forced to ride upon the step because he cannot find a seat in the car. A passenger on a street car is not guilty of negligence in riding upon the step because he cannot find a seat. It is negligent to start a street car suddenly and with- out warning when a passenger is upon the step and before he has time to get his seat in the car. (Brooklyn City Court. Kinkade v. Atlantic Avenue Railway Co., 29 New York. Supplement 747.) 50 STREET RAILWAY LAW. Alighting from Car at other than Regular Place. It is not negligence as a matter of law to attempt to alight from a car on the side opposite to that prepared for the reception of passen- gers if those in charge of the car have invited an alighting on such op- posite side. That a car has not reached the usual stopping place when a stop is made and a passenger attempts to alight, will not render him guilty of negligence if there was no warning not to alight, and from the sur- roundings a passenger might well have understood that the stop was made for that purpose. The court said, in part : " The defendant contends that upon the whole record it appears that the landing place provided on the northerly side of the track was suitable and proper, and known to the plaintiff to be so, and that she had no right to alight on the side of the car next the loop, and that, if she chose to do so, it was at her own risk ; and it is further con- tended that the plaintiff's testimony, taken as a whole, failed to make it clear how the injury occurred, and also that the grounds inside the loop were a reasonably safe landing place. A number of other questions are raised, relating to rulings on the trial as to admissibility of testi- mony, refusal of requests to charge, preferred by counsel for the defendant, and the charge of the court on its own motion, which will be considered in order. The plaintiff's theory is that in attempting to leave the car she stood with both feet on the running board; that a gentleman who was aboard the car assisted her from the running board to the ground; that she clasped his hands in making her descent to the ground, and that, upon stepping down from the running board, she stepped upon the steep bank of earth, which the testimony shows to be somewhere from four to five inches high; that her foot slipped and gave way, and that she fell, and received the injuries in ques- tion. The defendant's theory as to the manner of her STREET RAILWAY LAW. 5 1 injury is that the true cause of her injury was not the un- even condition of the ground, but that it was occasioned by some person stepping upon the plaintiff's dress as she was alighting, thereby throwing her to the ground ; and the defendant offered the testimony of numerous witnesses tending to sustain this theory. " It is strenuously insisted that, the company having pro- vided a safe landing place on the northerly side of the loop, its full duty to the passengers was performed, and that it cannot be held liable for an injury occurring by reason of a passenger attempting to alight inside the loop. Upon this question the trial judge charged the jury as fol- lows : ' A street railway company has the right to select and adhere to the making of their own arrangements for platforms and landing places at such resorts as Reed's lake, provided, only, that they make the landing place on one side safe and commodious, and so conspicuous that all pas- sengers can see it by day or by night, unless it has been so used, and is so used, and the circumstances are such, in connection with the landing, as amounts to an invita- tion to alight on the other side ; ' and further : * It is cer- tain, under the testimony in this case, that the construc- tion of that walk and landing, running from 30 feet wide down to 10 feet each way, and an extent of from 150 to 200 feet along this north side next to the resort, that it offers a plain and palpable invitation for the passengers upon its trains to get off upon that side; and I have no doubt that under the arrangements as testified to, and un- contradicted, in order for the company to be held as invit- ing an alighting upon the inside of the loop, that there must be, and should be, some positive act on the part of the compan}-, as if a conductor should invite a passenger to get off upon that side, or as if any arrangements had been made for the landing of passengers upon that side ; 52 STREET RAILWAY LAW. and I believe the law to be, under the peculiar testimony in this case, that there should be something that you should fix in your minds, other than the fact that passen- gers upon a loaded train, riding upon the running board, upon the outside, saw fit to jump off within the loop, and run around across the track to the place of amusement.' This charge was sufficiently favorable to the defendant, and fairly stated the law of the case, if there was any tes- timony tending to show that passengers had been, by the course of conduct of the defendant, invited to alight upon the inside of the loop. See McDonald v. Chicago & N. W. R. Co.; 26 Iowa, 124; 96 Am. Dec. 114; 2 Redf. Railways, 532. We also think that there was testimony which justified this instruction. According to the plaintiff's testimony, she had previously been helped off the car by conductors inside the loop, and there is abundant testimony in the record that the common practice was to alight on either side indiscriminately. The car was so constructed that passengers could alight from either side, and there was no warning or notice to passengers to step off only on the northerly side. The cars were crowded with passen- gers, and the evidence shows that, as some would alight, others would press forward and take their seats. Under these circumstances, we are not prepared to say that, as a matter of law, it was negligent to attempt to alight on the inside the loop. But it is said that the car had not reached its usual stopping place, nor the place where plaintiff had been previously assisted to alight. But the car had come to a full stop on the occasion in question. There was no warning not to alight, and a glance at the surroundings is sufficient to indicate that a passenger might well have understood that the stop had been made for that purpose. The evidence shows that not the plaintiff alone, but substantially all, if not all, the passen- STREET RAILWAY LAW. 53 gers, interpreted the stop as an invitation to alight. The cinder walk was opposite the stopping place on the north, and the car was directly opposite the walk which leads to the pavilion. We also think the question of whether the uneven condition of the ground was such as to amount to negligence on the part of the company was, under the circumstances of this case, fairly a question for the jury. The plaintiff's theory was that the bank of earth from which her foot slipped was directly at the point where one, in alighting from the car, would be likely to step upon its edge, and slip backward. We are not prepared to say, as a matter of law, that this was a suitable landing place. (Supreme Court of Michigan. Poole vs. Consolidated Street R. Co. 25 Lawyers' Reports Annotated 744.) Crossing Frequented by School Children — Care Required in Running Electric Car — Duty of Child to Look and Listen. On a motion for a nonsuit every intendment and every fair and legitimate inference which can arise from the evidence must be made in favor of the plaintiff, and the court must assume those facts as true which the jury could properly find under the evidence. The law demands greater vigilance and care in run- ning an electric street-car over a public street crossing which is much frequented by children going to and returning from school at a time when they may reason- ably be expected to be using the crossing than is de- manded at other places. It is for the jury to judge whether the failure of a school child to look or listen before attempting to cross a street-car track shows a want of that degree of care which could reasonably have been expected of such a child. $A STREET RAILWAY LAW. The presumption that a person seen on a street-ca track will leave it before a street-car reaches him car not be indulged in, when a child of tender years is see on the track. (Supreme Court of Oregon, Wallace vs. City & Sut urban Railway Company, 25 Lawyers' Reports Annol ated 663). Driving on Wrong Track — Injury by Car. A., driving on the right-hand track of a street, turn off to the left-hand to allow a car to pass him. He the starts to get back on the right-hand track to allow a ca coming in the opposite direction to pass, but is prevent© from doing so by a wagon coming towards him on th left track, moving over to the right track to allow th car to pass, and the car coming at a rapid speed run into him. Held that there is no such act of thir party intervening between the negligence of the railwa; and the accident as to remove the liability of the railwaj The fact that a man is driving along the left-hand tracl of a street railway, which occupies a public street, i not negligence on his part per se. (Supreme Court of Pennsylvania Thatcher vs. Centra Traction Company. 25 Pittsburgh Legal Journal 321. Injury to Minor — Tresspasser on Car — Duty to Trespasser 'No negligence on the part of the defendant wa shown unless its failure to comply with the followinj ordinance be such: 'Sec. 1515. It shall be unlawful fo any of the horse railway companies of the city of Chi cago to suffer any car to be run on any of the streets o any portion or part thereof in said city at any time unles the same shall be in charge of and under control of som competent conductor, who shall be a person other tha: STREET RAILWAY LAW. 55 the driver of said car. For each and every violation of the provisions of this section, the said companies, or either of them, shall be subject to a fine of not less than $10 nor exceeding $100.' " It is questionable if this ordinance is applicable to cars Which are not being used for the transporation of passen- gers. The term 'conductor' as applied to the business of railways, signifies the chief official on the train, who controls its movements and usually collects fares, Cen- tury dictionary. Be this as it may, it does not appear that the injury to the plaintiff was caused by the failure of the defendant to comply with the ordinance. " It is argued that if there had been a conductor with each car the plaintiff would not have jumped upon the car. We do not see how this follows. The ordinance does not make it the duty of the conductor to keep small boys from getting thereon, nor at what place in the car he shall remain. The conductor might under the ordi- nance have, properly, been upon the rear platform or seated near the rear door. It is not possible for one con- ductor to be at all times so stationed so that he can pre- vent children jumping on in mere sport. Unquestionably passenger cars, as well as teams of all kinds, do afford an enjoyment to children to jump on, "hitch" on, make use of the vehicle in play, but we are aware of no rule making it the duty of those in charge of cars or carriages to be all the while so stationed that boys cannot jump or " hitch " thereon in mere sport. "As to this see Chicago W. I. Ry. Co. v. Roath, 35 111. App. 349. It is a favorite amusement of boys to jump onto a car, ride a short distance and jump off. Also to jump on and "ring up" fares on the conductor. Car companies are bound at all times not only to exercise ordinary care, but ofttimes great care that no one in the 56 STREET RAILWAY LAW. street is run over or injured, but this care is due not so much to trespassers, as to those making use of the street or car in an orderly manner and proper manner. The plaintiff was a trespasser, injured, so far as appears, with- out fault of the defendant." (Appellate Court of Illinois. Chicago West Division Railway Company vs. Hair 27 Chicago Legal News 244.) [See also Bottoms vs. Seaboard & Roanake R. Co., 25 Lawyer's R eports Annotated 784 and note. — Ed.] Driving on Track-^ Collision With Car Approaching From Behind. It is not negligence to drive on a street railway track. A driver of a van is not guilty of negligence contribut- ing to a collision with a car approaching from behind without warning, in driving upon that one of two tracks upon which the cars will approach from behind, where he looks back shortly before the collision to see if a car is near. (Brooklyn City Court, Arnesen vs. Brooklyn City Railway Co. 29 New York Supplement 748.) Time to Board Car — Injury to Passenger. The duty devolving upon those in charge of a street car which has stopped at a point usual for taking on pas- sengers, to give ample time for. passengers to board the car, is not limited to those who have signaled the car, but includes all others desiring to take passage. A passenger attempting to board a street car which starts after she has her foot upon the step and her hand upon the railing is not guilty of contributory negligence in continuing her hold upon the car after it starts, as being placed in sudden peril by the negligence of the street-railway company, she is not held to strict account- ability for her mode of action. STREET RAILWAY LAW. 57 (Appellate Court of Illinois, Joliet Street Railway Co, vs. Duggan 45 Illinois Appellate Court Reports 450.) Driving onto Cable Track — Descending Grade. It is not, as a matter of law, negligence for one to con- tinue to descend with a heavy load a steep grade cross- ing a street railway without fixing a lock chain to the wagon which breaks after the descent is begun. One was not guilty of negligence, as a matter of law, in being upon a cable- railway track at the time of a col- lision with a car, where he could see the track for a dis- tance of 100 feet and saw no car approaching imme- diately before the accident, which was due to the fact that the car could not be stopped within that distance after an alarm given. (Supreme Court of California, Cross vs. California Street Cable Railway Co. 36 Pacific Reporter 673.) Repeal of Street Rail-way Ordinance. A legislative grant accepted by the grantee constitutes a contract, the terms of which cannot be altered without the mutual consent of the par- ties, except as the right to repeal or alter is reserved in the enactment itself or existed in constitutional or legislative provisions ; and an impair- ment of such a contract by the legislature or by a municipality author- ized by it, or acting under a statute supposed to give the power, is a vio- lation of the provision of the Constitution of the United States relating to the impairment of contracts. The Court said in part: I now come to the consideration of Ordinance No. 23. Did its enactment and acceptance constitute a contract of the character claimed by the plaintiff, and, if so, has such contract been impaired by the repealing ordinance of No- vember 18, 1892? These questions are to be answered as the law is found to be applicable to the facts I have stated. The defendant insists that Ordinance No. 23 was a mere license to the railroad company to use the streets designated in it for railroad purposes, subject to modifi- 58 STREET RAILWAY LAW. cation or repeal at the will of the municipal authorities of the city of Baltimore; also, that the court of appeals of the state of Maryland, prior to the passage of said ordi- nance, had decided that the mayor and city council of the city of Baltimore could not pass an irrepealable ordinance, which decision, it is claimed, under the rules of construc- tion relating to such matters, became part of the city's agreement with the railroad company. In support of this contention the cases of Rittenhouse v. Mayer, etc., 25 Md. 337, and State v. Graves, 19 Md. 351, are cited. I have examined them carefully, considering the facts in each in connection with the opinions of the court relating thereto; and I am convinced that it was not the intention of the court of appeals to hold as the defendant here claims, but that it really designed to and did announce the now well-established doctrine that municipal corporations, so far as their own internal affairs are concerned — such as opening, closing, and grading streets, or constructing buildings for public use in a particular manner, or at a certain place — can pass no irrepealable ordinance. The court in those cases did not regard the ordinances as con- tracts, but considered them municipal enactments or reg- ulations, repealable at the pleasure of the city, as the public interest might demand. It may be admitted that, as the general railway act of the state of Maryland was passed after the adoption by the people of that state of the constitution of 1867, the right is reserved to the general assembly to repeal, alter, or amend the charters of the North Avenue Railroad Company, and of the Lake Roland Elevated Railway Company ; and also it may be conceded that if the gen- eral assembly of Maryland had repealed the ordinance relative to double tracks upon Lexington street, or author- ized the mayor and city council of Baltimore to do so, STREET RAILWAY LAW. 59 then there would be no impairment of the obligation of the contract relied on in this case, and that the plaintiff would not be entitled to the relief sought. It is certainly true that the general assembly has not directly legislated relative to the modification of the repeal of said Ordinance No. 23. The question next to be answered is, has the mayor and city council, under the authority of the general assembly, done so? That the municipal authorities of the city of Baltimore, in passing the repealing ordinance, acted under supposed legislative authority, and not in the exercise of a right under their general powers to repeal a mere license or rule of regulation, is, I think, clear. That they have not the right, under their general pow- ers, to repeal an ordinance passed by them, by which a contract has been created, is also clear; and as their only legislative grant of powers to repeal limits such action, so far as Ordinance No. 23 is concerned, to their general powers, it is quite evident that the authority under which they acted in passing Ordinance No. 1 wassupposed,andnot real. I cannot agree with counsel for defendant that author- ity can be found in chapter 370, Acts 1890, and in chapter 1 1 2, Acts i892,General Assembly of the State of Maryland, giving the mayor and city council of Baltimore the power to amend or repeal Ordinance No. 23; but after hearing their arguments, and reading the opinion of the city solic- itor relative to their power under said legislation (a copy of which is found in the record of this cause), I can read- ily understand why the municipal authorities of that city supposed that they had power from the general assem- bly to pursue the course they did. It is true that by the Acts of 1890 (chapter 270) it is provided that the mayor and city council of Baltimore shall have power to regu- late the use of the streets, lanes and alleys in that city, by railway or other tracks, gas or other pipes, telegraph, 60 STREET RAILWAY LAW. telephone, electric light, or other wires and poles, in, under, over, or upon the same; but except in regard to underground conduits for wires, for which purpose it seems to have been enacted, I do not find that it gives any additional authority to said officials, so far as the use of the streets of Baltimore and the regulation of the same are concerned. It has been conceded for years — long recognized as the law — that the mayor and city council of Baltimore have full control over the streets and high- ways of that city, and the act of 1890 has been held to be an "amplification of their general power over, and right and duty to regulate and maintain the streets and highways of the city for the use of the public." The general railway act of 1876 gave the municipal corpor- ation of Baltimore the general power to consent or to refuse assent to the use of its streets by railroad tracks, and, independent of this, it has been held for years that such municipalities have that general power without the direct authority of the legislature, so far as local or street railways are concerned. (Dill. Mun. Corp, (4th ed.) § 724; Hinchman, v. Rail- road Co., 17 N.J. Eq. 75; Jersey City & B. R. Co. v. Jersey City & H. R. Co., 20 N. J. Eq. 69; Atchison St. Ry. Co. v. Missouri Pac. Ry. Co., 31 Kan. 661; Brown v. Duplessis, 14 La. Ann. 842; State v. Corrigan Consol. St. Ry. Co., 85 Mo. 263.) The rule of construction, with respect to legislative grants to corporations, relied on by the defendant, may be conceded, — " that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public." STREET RAILWAY LAW. 6l (Minturn v Larue, 23 How. 435; Barnett v. Denison, 14S U. S. 135; Hamilton Gaslight & Coke Co. v. Ham- ilton City, 146 U. S. 258, 13 Sup. Ct. 90; Fertilizing Co. v. Hyde Park, 97 U. S. 659.) Did chapter 112, Acts 1892, to which I have already alluded, and to which, in connection with the rules and authorities just cited, I will again refer, justify the repeal of Ordinance No. 23? So far as it relates to the right to repeal, does it give to the defendant any power addi- tional to that possessed by the city authorities before its passage? It seems to me that it does not, so plainly so that it is rather strange it should be seriously contended to the contrary. What right to amend, alter or repeal, did the city possess, under its " general powers," prior to the date of said enactment? In this case it has just such right, and no more, as it reserved in Ordinance No. 23. The general assembly, by said chapter 112, did not intend to reserve to the city authorities any additional or abso- lute right of amendment or repeal, but is careful to limit them to the "same power and control" as they would have under their "general powers." If an ordinance passed by them does not constitute a contract, but simply relates to affairs as to which the city alone is interested, then, under their general powers, their right to amend or repeal it is without limit. If a contract has been cre- ated by the ordinance, then the right to amend or repeal is such as was reserved to the city in the enactment itself. The only clause in Ordinance No. 23 providing for changes in or amendments to it is in the following words : "And shall be subject to all the general regulations now existing or hereafter to be made, relating to city passen- ger railways not inconsistent with this ordinance." I do not find the right to repeal in this reservation, but simply the right to regulate, provided that the regulations pro- 6l STREET RAILWAY LAW. posed are not inconsistent with the terms of the ordi- nance. (United States Circuit Court, District of Maryland. Baltimore Trust and Guaranty Co. vs. Baltimore 64, Federal Reporter 153.) [For contrary opinion see Lake Roland Elevated Railway Co. vs. Baltimore 77 Md. 352; 54 American and English Railroad cases 11. Ed.] Enjoining Construction of Street Railway — Suit by Abut- ting Owner — Attorney General the Prober Party. The first question for consideration upon this appeal is whether a court of equity will in the case presented by appellant's bill interfere at the suit of an owner of abut- ting property to restrain the use, for public purposes, of a street by a private corporation. The question really is whether an abutting owner has such a private right, vested interest, in the use to which a public street may be put that he is entitled to have such private right and interest respected, and protected by the people's writ of injunction. It is manifest that if the abutting owner is entitled to enjoin the use of a public street it is because of his private right; he can not assume to, because he does not, represent the public. The attorney general is the only proper representative of the public and in suitable cases bills may be by him maintained to protect the public interests: (Kerfoot v. The People, 51 111. App. 409; Attorney General v. The Newberry Library, 51 111. App 166; Same v. Same, 150 111. 229; Hunt v. Chicago Horse & Dummy Ry. Co., 121 111. 638.) If one abutting property owner may, for such an injury to the public, file a bill and obtain an injunction, then each of such owners may do likewise. STREET RAILWAY LAW. 03 Mr. A, the owner of a lot, obtains upon his bill an injunction against the contemplated use. His bill is answered, testimony is taken, upon hearing, the evidence being contained is found not to sustain the allegations of the bill, whereupon it is dismissed. Mr. B immediately files his bill, the allegations being the same as those in that of Mr. A with the necessary variation as to the description of the lot of which B is the owner. If the bill of A presented a case for an injunction, the bill of B does; it is no answer to say that the court has found the allegations in the bill of A to be untrue ; Mr. B was not a party to that suit, he is not bound by the conclusions there reached; he is entitled to be heard upon the charges by him made; he well urges that it by no means follows that he may not establish the truth of allegations which A failed to prove; and that the rights of B can not be foreclosed by a suit brought and prosecuted by A. The court can not be a respecter of persons, and to be consistent, must give B an injunction and hear his cause,. The second suit results like the first; whereupon C files his bill demanding an injunction upon a hearing. How can he be denied? In brief, if one abutting owner is entitled to, by injunction, maintain the public right, why is not each successively? If appellant may upon his bill obtain an injunction restraining the use of the street by appellee, why may not another abutting property owner in another and proper proceeding, obtain an order compelling appellee to comply with its contract with the public, by placing rails upon and running cars for the carriage of passengers along the streets ? The difficulty with proceedings at the suit of individual owners of abutting property, to either restrain or compel 64 STREET RAILWAY LAW. the use of a public street for a particular purpose, is that such suit concludes no one but the parties to it. The very decree and restraining order appellant seeks, he might, for a selfish and personal consideration, release; he can establish only his property right, and that he may barter in any lawful way. For these and other reasons it is well established that the attorney general is the proper party to represent the public, and a bill will not lie at the instance of an indi- vidual to restrain the doing of that from which the com- plainant will suffer no damage other than that which the public sustain. The abutting property owners do not, in this as in some other States, own the fee of the street. The street is held by the public authorities in trust for the use of the public. The abutting owner has therefrom a right of access to his property, a right to the light and air that naturally come to his premises from the public way, but to the use of or to control the use to which the street may be put, he has no more right than any of the other millions for whose convenience the highway exists. If by reason of the taking of the street for a new public use his property is specially damaged, he is entitled to recover such damage in an action at law. To one who desires, at his home, quiet and peace, it may be annoying that thousands should pass his door in noisy omnibuses or crowded cars. The right, however, to say who shall ride or walk past his door does not belong to him. The street is for the use of the public, of which he is but one. (Appellate Court of Illinois, Stewart vs. Chicago Gen- eral Street Railway Co. 27 Chicago Legal News 303.) [See also North Chicago Street Railroad Co. vs. Chatham 27 Chicago Legal News 306. Ed.] STREET RAILWAY LAW. 65 Assignment of Right of Action for Personal Injury. Where one injured by a street railway company contracted with an attorney for the prosecution of her claim upon a contingent fee, it was held that the contract was good, and part of the claim having been assigned to the attorney, of which the railway company had notice, the company settled with the person injured at its own risk. In the opinion of the Court, Shepard, J. said : It was said in Newkirk v. Cone, 18 111. 449, that our statute (Sec. 27, Ch. 38, Hurd's Rev. Stat.), defining and providing for punishment of maintenance, under which general name champerty is embraced, seems to have abolished the common law offense with its divisions and distinctions, and to have substituted, in its stead, a statu- tory offense under the general name of maintenance , and holding, in that case, that there is no law, or public policy in this State which would deprive a person, claiming a right, from contracting to pay for legal services in vindi- cating it, a stipulated portion of the thing, or of the value of the thing when recovered, dependent solely upon recovery, instead of paying, or contracting to pay, abso- lutely, a sum certain, has never, to our knowledge, been certainly receded from. A possible distinction might exist if the- attorneys were to agree to carry on the litigation at their own cost and expense: Phillips v. So. P. Commissioners, 119 111. 626. The same element, that the attorney agreed to "pay all necessary expenses" in prosecuting the claim, existed in Thompson v. Reynolds, 73 111. 11, where Newkirk v. Cone is reviewed and distinguished from that case, but not, necessarily, over-ruled. Smith v. Young, 62 111. 210, was a case where the Supreme Court upheld the contract, although the attor- ney there agreed to pay all necessary expenses and costs himself. 66 STREET RAILWAY LAW. We agree that the decisions in this state seem to vacillate upon the question, but, without indulging in an extended review and comparison of them, it appears to us that no one of them goes so far as to hold that a con- tract like the one in question is void as being champer- tous; and we are not inclined to go to that extent: Dunne v. Herrick, 37 111. App. 180. The changed conditions and better civilization of to-day as compared with what existed in England, when the common law rule prevailed afford reason, as held in many States, for the material restriction of that doctrine: Clark's Crim. Law, Ch. 13 p. 324. As said in Newkirk v. Cone, supra; the suitor may be unable to pay in advance, and without credit, or he may deem such an arrangement (for a contingent fee) most prudent and best calculated to insure vigilance on the part of his counsel; and if he has a cause of action the courts are and should be open for its legal prose- cution. The other contentions of the appellant require but slight mention in the view we take of what was done and agreed to be done, by Mary Butler, by the terms of said agreement with appellee. Whatever may be the law with regard to the assignability of a right of action for a personal injury, concerning which there are numerous authorities of great weight on both sides, there ought not to be much dispute that the assignment in this case of an interest in the right of action, which was to be prosecuted in her name, together with an agreement to assign a corresponding interest in the judgment which should be recovered in the future, upon such right of action, worked an equitable assignment of the specified interest of that judgment, the moment the judgment was perfected, upon the principle that in equity that which is agreed to be done will be considered as done : 1 Story's STREET RAILWAY LAW. 67 Eq. Jur. Sec. 64; Freeman on Judgments (12 Ed.), Sec. 425. An equitable assignment is such an assignment as gives the assignee a title which, though not cognizable at law, equity will recognize and protect, and to support such an assignment there must be an actual appropriation of the fund or of some designated part, proportion or per cent of it: Story v. Hull, 143 111. 506. We think there was here what was equivalent, in equity, to an assignment of a definite proportion of the judgment that was recovered, and that if the appellant had notice of such assignment, the payment of the whole judgment to Mary Butler was made at its risk. Whether there was a sufficient allegation of notice to appellant of the rights of appellee under the contract in question is a serious question with us. The allegation of notice was as hereinbefore quoted, and omits all mention of to what agent or officer of the appellant corporation notice was given : Evans v. Schriver Laundry Co. (No. 5319), filed Dec. 20, 1894; Primmer v. Patten, 32 III., 528; Newell v. Board of Supervisors, 37 111. 253; Trustees of Schools v. Otis, 85 111. 179; Schultz v. Plankington Bank, 40 111. App. 462. But as the appellant has not argued nor even alluded to the question of want of notice, in its brief, we will presume that, even though the errors assigned are sufficient to cover it, the question is waived or abandoned. W. St. L. & P. R. R. Co. v. Mc Dougal, 113 111. 603; City of Mt. Carmel v. Howell, 137 111. 91. The decree of the Superior Court is affirmed. Mr. Presiding Justice Waterman dissenting. — The contract of assignment upon which the decree in this cause is based, is not, in my judgment, such an one as the law favors or a court of equity will enforce against persons not parties thereto. 68 STREET RAILWAY LAW. The contract is not of a claim or right of action against any particular person, but is of a roaming nature, authorizing the attorney to go forth "seeking whom he may devour," and to bring and prosecute diligently to final settlement, not judgment, such suits or legal proceedings as he may deem necessary. It is manifest that if this instrument be valid and enforceable, its validity has not yet been exhausted, and who may be the next victim of this omnivorous power of attorney no one can tell. Neither public policy, court of law or equity have ever leaned to the fomenting of litigation, or to the discour- agement of settlements out of court. So far as there is any definiteness in the contract under consideration, it would seem to be of a right of action against certain employes of the North Chicago Street Railway Com- pany, by whose negligence, not that of the Street Rail- way Company, an accident to Mrs. Mary Butler, it is said, was caused. One-half of this right of action, Mrs. Mary Butler pur- ports to assign and "agrees not to compromise or settle said claim or to have any dealings with any persons in reference thereto other than said attorney." Rule C. C. C.C. I. expressed in Greenhood on Public Policy, p. 474, is a contract by which the control of the party in interest over the litigation carried on in his behalf, is limited, is void: Boardman v. Thompson, 25 Iowa 487; Elwood v. Wilson, 21 Iowa 523; Lewis v. Lewis, 15 Ohio 715. It is urged that if contracts of this kind are not sustained, then whomever may receive an injury through the negli- gence of another will be remediless. How this follows is not explained, unless counsel mean to insist that every poor person who received a personal injury is dishonest, and that no lawyer can or STREET RAIL WAY, LAW. 69 will rely upon the promise of such person to pay him a fair fee for successfully prosecuting his claim to judg- ment. That a rule of law should be established by which the army of small employers, farmers, grocers and others, the multitude of individuals who must engage and become liable for the negligence of servants, are to find in each case, great and small, petty and important, that all right of honest, fair and just settlement with an injured party has been contracted away to professionals, is not to my thinking in accordance with the welfare of the injured individual, or sound public policy. (Appellate Court of Illinois. North Chicago Street Railway Company vs. Ackley, 27 Chicago Legal News 348.) " Statutory Limitation of Franchises — Expiration of Charter — Power of City to Grant Use oj Streets. The limitation of thirty years in the Michigan statute upon corporate franchises does not enable a city to grant an easement to a street railway company in its streets for the full term of thirty years although the life of the com- pany expires before. The acquisition of property for the enjoyment of the franchises to operate a street railway in city streets does not make such franchises property which will exist beyond the corporate life. An extension of the right to occupy a street to a street railway company, invalid as extending beyond the life of the company, is valid -pro-tanto to the expiration of the charter, if the company chooses to rely upon it in that respect. The right to grant to a street railway company the occupancy for thirty years of the streets of a city can 'JO STREET RAILWAY LAW. exist only by direct and express authority from the legislature. Under a general charter power to regulate the use of its streets, a city may permit or license a street railway company having the requisite franchises from the State to lay its tracks in the street and run its cars thereon, but cannot by virtue of such power agree that such use shall continue for a definite term of years, or grant an easement in the street. The provision of the Michigan General Railway Act, Sec. 13, for consent by a city that a street railway com- pany shall construct, maintain, operate and " own " a street railway in the streets, does not authorize the grant of an easement in the streets to extend beyond the life of the franchises of the company. The power of consent to the construction of a street railway in city streets, to be exercised by a city under the Michigan statute, is limited in time to the life of the fran- chises of the company, and such easement will expire with the corporate life of such company. The power to consent to the construction of a street railway through city streets, indirectly conferred upon cities by the Michigan Tram Railway Acts, necessarily implies power in the city to grant an easement in the streets to street railway companies. The existence and continuance of an inseparable ease- ment and franchise to construct a street railway in a street are not forfeited and destroyed by the actual ownership and enjoyment of such easement and franchise by a street railway company which purchases them without power to tak-e and enjoy them, when they have subsequently been purchased by another company which has the capac- ity to receive such easement and franchises. Street railway companies are not within the exception STREET RAILWAY LAW. 7 1 to, but come within the inhibition of, Mich. Const, art. 15, sec. 10, providing that no corporation except for muni- cipal purposes or for the construction of railroads, plank roads and canals, shall be created for a longer period than thirty years. (United States Circuit Court, Eastern District of Mich- igan. Detroit vs. Detroit City Railway Co. 56 Federal Reporter 867.) Conflict of Telephone and Electric Street Railway Plants. The unnecessary conflict of poles and wires of a trolley railway company with those of a prior existing telephone plant to the damage of the latter, makes the railway com- pany liable for the cost of necessary changes made by the telephone company; but the latter cannot recover for loss by induction where a provision of the statute pro- hibits its obstructing the ordinary use of the street. The destruction of the use of a telephone plant, caused by conduction resulting from the operation of a single trolley street car line which charged the earth for half a mile on each side with powerful currents of electricity, makes the street railway company liable for the cost of return wires for the telephone line as a substitute for the ground circuit. The court said in part: It is in vain to say that induction is not an obstruction if defendant shall be held for the unavoidable damage caused by it. It is true, induction implies no physical contact of the two plants, but it is a direct and immediate result of plaintiff's use and occupation of the streets. The presence of plaintiff's poles and wires upon the streets causes induction, and their removal would obviate it. The plaintiff cannot recover for the loss sustained from induc- tion. It results from its unlawful obstruction of defend- 72 STREET RAILWAY LAW. ant's use of the streets. The consideration of other questions is irrelevant in this connection. Is defendant liable for loss sustained by plaintiff from the effects of conduction? The loss by conduction, unlike that caused by induction, does not result from plaintiff's obstruction of defendant's use of the streets for an ordinary purpose. This interference would occur, and cause precisely the same loss to plaintiff, and in pre- cisely the same manner, if plaintiff had no poles or wires upon the streets. Loss by conduction does not result in the slightest degree from the presence of plaintiff's poles and wires upon the streets, and would not be to any ex- tent remedied by their removal. The contact between the two plants, caused by conduction and the consequent injury, does not occur upon or within the streets or through the medium of plaintiff's poles and wires located upon the streets, but upon plaintiff's private property, and that of its subscribers, lying outside of the streets, and within half a mile on either side. The fact of plaintiff's occupation and use of the streets — a controlling factor in determining defendant's liability for loss by induction — is irrelevant in the consideration of the question of defend- ant's liability for loss by conduction. This question must be determined as if the plaintiff had no poles or wires upon the streets. The proviso in the Statute of 1885, forbidding plaintiff, by its use of the streets, to obstruct their ordinary use, has no application to the question under consideration. That statute limits plaintiff's use of the streets, but it does not abridge its right to private prop- erty outside the streets, and wholly detached from their use. That statute confers upon plaintiff the use of the streets, and limits that use. It does not confer upon plaintiff any rights of private property outside the streets, and does not undertake to abridge any such rights. The STREET RAILWAY LAW. 73 proviso pertains wholly and exclusively to the use of the streets. The defendant's claim to the dominant use of the streets, if conceded, has no place in the consideration of this question, involving the rights of the parties out- side the streets. Although the precise question determined in this case has not hitherto been necessarily involved in the decision of any case, it has, nevertheless, been considered by some of the courts, in Hudson River Teleph. Co. v. Watervliet Turnp. & R. Co., 135 N. Y., 393, 17 L. R. A. 674 (decided in 1892), the court of appeals of the state of New York expressed its views as follows: "The defendant insists that it has an equal right with the plain- tiff to make use of this property, or law of nature, in the conduct of its business, just as all are entitled to the common use of the air and the light of the heavens, which, in a certain sense, is undoubtedly true. But the defendant does something more. It does not leave the natural forces of matter free to act, unaffected by any interferences on its part. It generates and accumulates electricity in large and turbulent quantities, and then allows it to escape upon the premises occupied by the plaintiff, to its damage. We are not prepared to hold that a person even in the prosecution of a lawful trade or business upon its own land, can gather there by arti- ficial means a natural element like electricity, and dis- charge it in such volume that, owing to the conductive properties of the earth, it will be conveyed upon the grounds of his neighbor with such force, and to such an extent, as to break up his business, or impair the value of his property, and not be held responsible for the result- ing injury. The possibilities of the manifold industrial and commercial uses to which electricity may eventually 74 STREET RAILWAY LAW. be adapted, and which are even now foreshadowed by the achievements of science, are so great as to lead us to hesitate before declaring an exemption from liability in such a case. It is difficult to see how responsibility is diminished or avoided, because the actor is aided in the accomplishment of the result by a natural law. It is not the operation of the law to which plaintiff objects, but the projection upon its premises, by unnatural and arti- ficial causes, of an electric current, in such a manner, and with such intensity, as to materially injure its prop- erty. It cannot be questioned that one has the right to accumulate water upon his own real property and use it for a motive power; but he cannot discharge it there in such quantities that, by the action of physical forces, it will inundate his neighbor's lands, and destroy his prop- erty, and shield himself from liability by the plea that it was not his act but an inexorable law of nature, that caused the damage. Except where the franchise is to be exercised for the benefit of the public, the corporate character of the aggressor can make no difference. The legislative authority is required to enable it to do busi- ness in its corporate form ; but such authority carries with it no lawful right to do an act which would be a trespass if done by a private person, conducting a like business. If either collects, for pleasure or profit, the subtle and imperceptible electric fluid, there would seem to be no great hardship in imposing upon it or him the same duty which is exacted of the owner of the accumu- lated water power, — that of providing artificial conduit for the artificial product, if necessary to prevent injury to others." The opinion of the supreme court of New York was to the same effect. An English judge, in a recent case, has thus stated his views: "But, after reflecting much on the merits of the case, on the argu- STREET RAILWAY LAW. 7$ ment addressed to me, and on the peculiarity of an elec- tric current as distinguished from every other power, I fail to see any reason why the principle should . not be applied to it. I cannot see my way to hold that a man who has created, or, if that be inaccurate, called into special existence, an electric current for his own purposes, and who discharges it into the earth, beyond his control, is not as responsible for damages which that current does to his neighbor, as he would have been if instead he had discharged a stream of water. The electric current may be more erratic than water, and it may be more difficult to calculate or to control its direction or force ; but, when once it is established that the particular current is the creation of, or owes its special existence to, the defend- ant, and is discharged by him, I hold that if it find its way into his neighbor's land, and then damages the neighbor > the latter has a cause of action." (National Teleph. Co. v. Baker (1893) 2 Ch. 201.) The same doctrine is main- tained by Judge Taft, then judge of the superior court of Cincinnati, and now a justice of the federal circuit court of appeals, in the case of City & Suburban Teleg. Asso. v. Cincinnati Inclined Plane R. Co. The injury by conduction constitutes such invasion or taking of plaintiff's property as renders defendant liable for the damage done. It is a direct and immediate result of a defendant's injurious act. It imposes a burden upon plaintiff's property that impairs its use and value. The loss is fixed and definite in amount. It can make no dif- ference that no material thing was taken, or that the loss resulted, not from the contact of material things, but through the agency of the subtle and impalpable electric fluid. The important consideration is that a thing of value has been taken from plaintiff for the benefit of defendant as the representative of the public, and for 76 STREET RAILWAY LAW. that thing compensation must be made. It is a plain dic- tate of justice that the public, not the individual citizen, should bear the burdens imposed upon private property for the public benefit. (Supreme Court of Tennessee, Cumberland Telephone & Telegraph Co. vs. United Electric Railway Co., 27 Lawyers' Reports annotated 236; S. C. 93 Tenn. 492.) Limiting of Franchise — Extension of Time — Granting Same Street to Two Companies. A franchise of a street railway under a State statute, subject to the consent of the council of a city to the loca- tion, survey, and a construction of the road, cannot be limited by a condition attached to such consent limiting the use of cars and the operation of the railway upon the tracks for which absolute consent is given, to a term of thirty years. A common council having authority to impose a limita- tion of thirty years upon its consent to the operation of a street railway may grant an extension of seven years of such franchise. The grant to an existing street railway company, of the right to build an additional line, does not bring such line within a previous agreement as to its existing line. Although under the Indiana act of 1891 a city may authorize a street railway company to lay its tracks in the same street on which other tracks are laid, such com- pany cannot run upon such tracks, nor the rails of one be so laid as to prevent or needlessly impede the running of the other's cars. (Circuit Court of the United States, District of Indiana. Citizens' Street Railway Co. vs. City Railway Co., 64 Federal Reporter 647.) STREET RAILWAY LAW. 77 Crossing- Track of Another Company. Injunction will not lie to restrain a street railroad company from laying a second track across the track of another, where it appears that the latter company has no exclusive right to occupy the street, and the answer of the former alleges that it owns the right of way over which the other's track is constructed, and it is not alleged that the former company is insolvent or that the injury will be irreparable. In the opinion, the Court said: The contest, as disclosed by the record, is between two street railway companies, each of which is already using a thoroughfare of a city for the purpose of its busi- ness. It is plain that neither of them is vested with any property right in the street of greater dignity than a franchise for a right of way, and that such franchise cannot amount to a right of exclusive occupancy of the street for railroad purposes, or operate to clothe the possessor thereof with power to prevent the crossing of its tracks by another railroad proceeding under proper municipal license. The real controversy is as to the ownership of or authority to control the right of way at the proposed crossing. The object of the bill is to enjoin an alleged threatened trespass, without showing insufficient legal remedies for the redress of the injuries that may be caused thereby. There is no averment that the defendant is insolvent, or that the anticipated injury would be irre- parable. In the absence of any such showing, it is not perceived upon what principle the right to an injunction can be maintained, unless a case is made for the exercise of the special jurisdiction conferred upon courts of equity to prevent the abuse by corporations of the right of eminent domain, and to keep them within the limits of the authority conferred upon them by the law. This special jurisdiction was recognized in the case of the East & West Railway Company vs. East Tennessee, V. & G, 78 STREET RAILWAY LAW. Railway Company, 75 Ala. 275. The exercise of it was declined in that case, the Court saying: "Though relief is granted more readily to a land-owner whose lands are entered upon by a corporation having compulsory powers to take them for its own uses, and upon a different prin- ciple than in cases of trespass, waste, and nuisances ; yet, as in such cases, if the right and title of party complaining are not clear, or if the whole controversy resolves itself into a naked dispute as to the strength of the legal title, and it be not shown that an action of trespass or ejectment will not afford all necessary relief, the Court will not inter- vene by injunction." In view of the unequivocal denials of the answer in the present case, it cannot be said that the right and title of the complainant are clear. The pleadings disclose a controversy as to the title upon which the claim to an injunction is based. That controversy is such as should be determined by a court of law. Further- more, on the question of retaining or dissolving the injunc- tion, regard should be had to the consequences of adopting the one course or the other. If the injunction is dissolved and the crossing is made in the manner proposed by the defendant according to the averments of the bill, and here- after it turns out that complainant was entitled to compen- sation as it now claims, still it will have suffered no injury for which it will not have adequate redress at law. If, on the other hand, the injunction is retained and it eventually turns out that the defendant fully sustains its claim of right to make the crossing, the result perhaps would be to have deprived the public of increased facilities and con- veniences of travel by the unwarranted interposition of a barrier to the construction of an additional line of railway, and to have entailed upon the defendant by the obstruc- tion and delay of its work such damages as would be incapable of definite ascertainment. STREET RAILWAY REVIEW. 79 In view of the situation of the parties, it seems plain that the retention of the injunction would occasion more of injury and inconvenience than could follow from its dissolution. The considerations which should have weight in the exercise of that judicial discretion with which the Court is vested in such a case suggest the propriety of dissolving the injunction. (Sup. Ct. Ala. Highland Ave. & B. Railway Company v. Birmingham Union Railway Company 9 So. Rep. 568.) Street Railway Comfany. — Construction of Road. — Neg- ligence of Independent Contractor. Where a street railway company, having authority under its charter to construct a railway in a public street, does the work by an independent contractor, and an injury to a person passing along the street is caused by the neg- ligence of a servant of the contractor, which negligence consisted in unnecessarily and improperly laying down loose iron rails in advance of the workmen engaged in constructing the track, the contractor is liable for the consequences of such negligence; but the railroad company is not, the latter company not having reserved any control over the conduct of the former in executing the work.* (Supt. Ct. Ga. Fulton County Street Railway Com- pany v. McConnell 13 S. E. Rep. 828.) ♦In the case of Hackett v. Western Union Telegraph Company, 10 Ry. & Corp. L. Jour. 390, the Wisconsin Supreme Court held that in an action against a telegraph company for injuries received by falling into a hole dug for one of the poles in a public street, where it Is shown that the line was being constructed under a contract with a railroad company which was to furnish labor, and the foreman was employed by the railroad company, and had full charge of digging the holes and setting the poles, the defendant is not liable. 80 STREET RAILWAY LAW. Defective Appliances. — Injury to Car Driver. — Evidence. Where a pin holding the singletree to the drawhead of a street car came out, releasing the horse, and the driver was dragged over the dashboard, it was error, in an action for the resulting injury, to charge that it is the duty of a master to furnish such appliances "as combine the greatest safety with practical use"; since a master need only furnish appliances reasonably safe, though better ones exist; and a subsequent charge given at the master's request, which correctly states the law, does not cure the error. Under Code Civil Proc. Cal. sec. 1870, subd. 9, which provides that a witness may give his opinion "on a question of science, art or trade, when he is skilled therein," it is error to allow a witnesss who for about two years has been a driver and conductor on the railway, to testify whether in his opinion the pin was " safe," since he. should have testified only as to facts, leaving it to the jury to draw inferences therefrom. Evidence that soon after the accident the railway com- pany substituted a new and safer pin in all its cars, is incompetent as an admission of prior negligence. (Sup. Ct. Cal. Sappenfield v. Main St. & A. P. Rail- way Company 2 Chicago Legal Journal 577.) Corporation. — Action by Judgment Creditor against Stockholders. — Return of Execution. — Equitable Rem- edy. — Evidence as to Personal Property of Company. A judgment creditor who has had an execution returned unsatisfied against a street railway corporation, may main- tain an action against its stockholders to recover, for the benefit of all creditors who may desire to be made parties, the amount due upon unpaid subscriptions for stock. STREET RAILWAY LAW. 8 1 It was not necessary for plaintiff to show that he had pursued his statutory remedy against the stockholders. The rule is that a creditor has a right to resort to the equitable remedy invoked by the plaintiff in this action, after he had exhausted his legal remedies against the cor- poration, and this was shown in this case by plaintiff's judgment and the return of the execution issued thereon unsatisfied. The court did not err in refusing to allow defendants to show that the corporation was the owner and in pos- session of a large number of street cars and other per- sonal property and a line of street railway and of valuable franchises within the City of San Diego. The purpose of this offered evidence was to show that plaintiff had not exhausted his legal remedy upon his judgment, — but was not competent for that purpose. The judgment is conclusive against the company and its stockholders, and they cannot show that the indebted- ness for which the judgment was recovered arose from a contract which was ultra vires. One to whom stock is issued by the corporation, and who has the same placed in his name on the corporation books as the owner, is liable to the creditors of the corporation, as though he were the absolute owner; and this, whether he was in fact a pledgee, agent or trustee for the real owner.* (Sup. Ct. Cal. Baines v. Babcock, 10 Ry. & Corp. L. jour. 375.) Elevated Railroad. — Passenger entering moving Train. — Personal Injury. Plaintiff's husband, while entering a train on defendant's elevated railroad, was carried along by the moving train between it and the railing of the station platform and 82 STREET RAILWAY LAW. dropped to the street below and was killed. The railing was 12 inches from the car and the only evidence of defect was that about three weeks after the accident defendant reduced the space between the car and the railing to six inches. The railing was necessary, and reducing the space did not lessen the danger. Held, that an instruction that it was the duty of defendant to maintain a safe struc- ture, and that in determining whether the train was held for a reasonable time to enable deceased to get on, the jury should consider whether the railing was reasonably safe, was error. (Sup. Ct. Mo. Evans v. Interstate Rapid Transit Rail- way Company 13 S. W. Rep. 489.) Elevated Railroad. — Action against, for Injunction and Damages. — Compensation for Injuries from Smoke, Cinders and Gases. — Rights reserved by Grantor of Land. In acquiring the right to maintain an elevated railway structure in the street, the company will not be bound to make compensation for the incidental injuries produced by the running of trains thereon, such as the flickering of light, noise, and the contamination of the air by smoke, cinders and gases, although for past trespasses it would be liable on account of all such injuries. In an action for injunction and damages against an elevated railway company, which has erected its structure and is operating the road without having acquired rights in the street, it is error, in fixing the amount to be paid by it to an adjacent land owner as compensation for the perpetual right to use and obstruct his easements, to take into consideration or include items for the future passage of trains and future discharge of cinders, smoke, and noxious gases. STREET RAILWAY LAW. 83 Where a present adjacent owner acquired title by a deed which expressly reserved to the grantor all rights, claims and causes of action for injury done to the property up to the time of the transfer, a judgment in favor of said owner cannot be sustained in face of an express finding that all damages to the fee value were sustained prior to the delivery of the land.* (Supreme Ct. N. Y. Sperb v. Metropolitan Elevated Railway Company 6 N. Y. L. Jour. 413.) *The fact that a man'i name appears upon the books of the corporation as the owner of stock, is not always sufficient to render him liable as such owner. In the case of Glen v. Garth, decided by the New York Supreme Court, 10 Ry. & Corp L. Jour. 369, it was stated that no person can be made a stockholder without his knowledge or consent, and in an action to charge a person as a stockholder, the transfer to him upon the books of the corporation is not conclusive of his ownership, but the actual fact may always be inquired into, and if it be shown that the transferee on the books never consented to accept the shares, the transfer to him is null and void. 84 STREET RAILWAY LAW. Street Railway crossing Street occupied by another Railway. The location of a street railway track for a diitance of 165 feet on a street already occupied by another street railway, to connect the tracks of the first railway company on two other streets not opposite, was allowed as a diagonal crossing under the Pennsylvania statute. The test is, whether the crossing can be made without invading the rights of the other railway to the exclusive use of the street under its charter. Magee, J.: — The first question for consideration of the court suggested by counsel is, is the alleged extension, under which the defendant company claims to be con- structing its railway, illegal and void ? In passing upon this question it seems to me sufficient to say that the defendant company has obtained from the state, in the mode prescribed by law, the right to construct its railway upon and over a designated route, not involving the exercise of an indefinite power to construct necessary branches in connection with its designated route or main line. This grant to the defendant company is good throughout its entire length, provided it does not come in conflict with state privileges theretofore acquired and possessed by the plaintiff company. The next question suggested is, is the proposed con- nection between the tracks on Eighth and Burton streets a crossing? The law provides for a crossing either trans- versely or diagonally. The right claimed by the defend- ant company is to connect its tracks by crossing Main street, a street occupied by the tracks of the plaintiff company. An agreement has been entered into by the companies, that if the right to connect the tracks of the defendant company exists, it shall be made in a specified way and location. Can this crossing be accomplished by a transverse or diagonal crossing? There is no question that the crossing STREET RAILWAY LAW. 85 is necessary for the enjoyment of the defendant's fran- chises. It is very evident that a transverse crossing can- not be made, as Eighth street and Burton street are not directly opposite to one another. . Are these streets so far apart that a diagonal crossing cannot be made? The dis- tance from the center of one . street to the center of the other street is given as 165 feet, and from the line of one street to the line of the other street is 115 feet. I am of opinion that, under the facts in the case, a diag- onal crossing can be properly made within the limits men- tioned, without invading plaintiff's rights under its charter. I do not think it important to discuss the question of priority in the grant of charter, or municipal privileges, to these companies. Priority of grant does not affect the right of one road to cross another. If it were a question of the use and occupancy of a street, not by way of a crossing, but for the purpose of constructing a railway thereon, the priority of grant of corporate and municipal privileges would be essential to the determination of the controversy. In considering the case, I have accepted as law and the facts, that the plaintiff company has the exclusive use of Main street, but have decided that such exclusive use was not invaded by a mere crossing of its tracks by the defen- dant railway company. In deciding that the defendant company has the right to connect its tracks on Eighth and Burton street by a diagonal crossing, I do not mean to say that the plan agreed upon by the parties has been regarded as a diag- onal crossing. If the parties see proper, however, to agree upon the manner in which the crossing is to take place, I see no objection to their so doing. (U. S. Dist. Ct. Pa. Braddock & Turtle Creek Ry. v. Braddock Electric Ry. 1 Dist. R. (Leg. Intel.) 45. 86 STREET RAILWAY LAW. Corporations — Action to forfeit Charter — Constitutio Law — Remitting Forfeiture — California Statute. Const. Cal. Art. 12, s. 7, provides that no act shall passed extending the charter of any corporation or ren ting the forfeiture of a franchise. During the pendei of an action to forfeit the charter of a street car compj operated under a city ordinance, Acts Cal. 1892 cc. 19- were passed, one amending Civil Code s. 497 so as to vest municipal corporations with power to authorize str railways to use electricity as a motive power, the otl ratifying existing ordinances granting such power. H that the Acts did not extend the company's franchise charter, and, as there had been no decree of forfeitu there was none to remit, and therefore the Acts were 1 repugnant to the constitution. Civil Code Cal. s. 502, provides that work on the constr tion of a street railway must be commenced within a yi from the date of the ordinance granting the right of w and the filing of the articles of incorporation, and must completed within three years thereafter Held, that wh the complaint in an action to forfeit the charter did not st when the company commenced the construction and the by show that the three years had elapsed within which work must be done, it failed to state a cause of action (Sup. Ct. Cal. People v. Los Angeles Electric I Co., 10 Ry. & Corp. L. Jour. 395. Eminent Domain — Conflicting Rights — Rapid Trai Railway — Public Park — New York Statute. The New York " Rapid Transit Act," provides tl after the public necessity for a railway shall have b< determined by the commissioners to be appointed un the Act, they shall fix the route of the railway, decide the plan for the construction of the road, fix the ti STREET RAILWAY LAW. 87 when it must be completed, and prepare articles of incor- poration, which shall contain a clause forfeiting the com- pany's franchise if it does not comply with the conditions presented by the commissioners. Held, that the proceed- ings under the Act, resulting in the organization of a com- pany that is bound to construct and maintain a railroad on the route fixed by the commissioners, confer on the com- pany a vested right to take and use the land covered by the route as located by the commissioners, which right is not impaired by the fact that the work of actual construc- tion had not been commenced on a portion of the route when the legislature devoted such portion to park purposes. Laws N. Y. 1884, c. 522, authorize the city of New York to lay out a designated tract of land for a public park, which includes within its limits a strip of land in which a rapid transit railroad had previously acquired a vested right for its right of way. Held, that as the Park Act did not expressly confer on the city of New York the power to take such strip to the exclusion and depriva- tion of the Rapid Transit Company, such a power would not be inferred from the general language of the Act dedi- cating the land as a " public park for public use," but that such dedication would be assumed to be subject to all rights previously acquired by the railroad and to the oper- ation of its franchise. (Ct. App. N. Y. Suburban Rapid Transit Co., v. Mayor, etc., 10 Ry. & Corp. L. Jour. 494. Passenger thrown from Platform of Street Car — Degree of Care — Instructions. While it was plaintiff's duty to place himself in a safe position on the car, and in remaining outside he assumed the risk, yet the fact of his riding on the platform 88 STREET RAILWAY LAW. did not sever his relation of passenger to defendant, and 1 had a right to the same care of defendant that he wou have been entitled to if he had taken a seat inside the ca There was evidence, though conflicting, that while tl car was being driven at a dangerous speed it struck i obstruction on the track, and the jolting caused there! threw plaintiff off and injured him. Held, that defendai was not entitled to a nonsuit. Where plaintiff alleged that the injury was caused t the negligence of defendant's driver, and defendant denie this, and alleged contributory negligence on the part < plaintiff, it is error for the court in instructing the jury n< to present the effect of contributory negligence as well i the carelessness of defendant. (Sup. Ct. Mo. WiUrnot v. Corrigan Consolidated S Ry. Co., 2 Chicago L. Jour. 68 1.) Note. — As to injuries to passengers riding on the platform of astree car, see pages Eminent Domain — Public Use — Elevated Tramways. In condemnation proceedings by an elevated tramwa corporation, it appeared that the southerly terminus of pet tioner was accessible only by a private road, and that up 1 the date of the petition the road had been used solely fc transporting stone for a private corporation in which th incorporators of petitioner were interested. It was clain ed that it was the intention to carry freight for any perse offering the same to the extent of the surplus capacity aft« supplying the private corporation. Held, that in view of tr. object of its corporate existence and the manner in whic it had been and was to be operated, the evidence failed 1 establish that the taking sought was for a public use. (Ct. App. N. Y. Matter of Split Rock Cable Roa Co. 1 1 Ry. & Corp. L. Jour. 20.) STREET RAILWAY LAW. 89 Accident at Railroad Crossing — Injury to Street Car Driver — Contributory Negligence. A gate-keeper at a street crossing, while opening, a switch for an approaching engine, left the open gate in charge of a bystander, who signaled to a street car driver to cross. The latter, mistaking him for the gate-keeper, who was in the habit of- so signaling when there was no danger, drove on, notwithstanding one company's rule that required the conductor, when the gate was open and the gateman absent, to first go forward and report whether the track was clear. As the driver neared the crossing, but before he was aware of the engine's approach, he was told by the bystander to hurry up, and he did so. When the horses were within a few feet of the track, and the car could not safely be stopped, he discovered the engine and attempt- ed to get across before it; but the engine and car collided, and he was injured.- Held, in an action by the driver against the railroad company for damages, that defendant was negligent since when such gates are open the public have a right to presume, in the absence of knowledge to the contrary, that there is no danger. Whether or not under all the circumstances, plaintiff was guilty of contributory negligence, was a question for the jury, and the court erred in directing a verdict for defendant. Grant, J. Dissenting. (Sup. Ct. Mich. Evans v. Lake Shore & Mich. So, Ry. Co. 11 Ry. & Corp. L. Jour. 45.) 90 STREET RAILWAY LAW. Street Railway — Injury to Passenger — Proximate Cam Damages. Evidence held to justify a finding of negligent respect to the condition or operation of a train of a cars which, while carrying passengers, ran down a st declivity at very great and dangerous speed, and apj ently beyond the control of those operating the train. Evidence held to justify a finding that injuries recei by the plaintiff, manifested immediately by tempoi unconsciousness, by headache, nervousness, sleeplessi and some impairment of the mental faculties, were the cause of his paralysis, although that did not su] vene until seven months after the injury. If the inj is the direct cause of a diseased condition which res in paralysis, the latter may be ascribed to the injur; a proximate cause. From the mere fact that by their verdict the j assessed the plaintiff's damages at a specified sum "p another specified sum, which latter amount was the si as that demanded in the complaint for special damage is not to be conclusively inferred that this was awarde< the jury as special damages. (Sup. Ct. Minn. Bishop v. Street Ry. Co. not reported.) STREET RAILWAY LAW. 9 1 Right of a Street Railway to Condemn a Right of Way. Text in full of the Duluth Decision. In the matter of the petition of the Duluth Street Railway Company for the appointment of commissioner! to ascertain, determine, assess and award, the compensation to be made to the owners, respectively, and to all tenants, incumbrancers, and others interested in the lands described in said petition, on account of the taking of a portion thereof for the purposes of petitioner's railway as set forth in said petition. The above named petitioner, which is a railway cor- poration, duly organized under and by virtue of the pro- visions of Title 1, Chapter 34, of the General Statutes, 1876, of Minnesota, having at the time and place set forth in the notice to land owners, hereinafter referred to, duly presented to this court its petition, signed by the president and secretary, setting forth the enterprise to be prosecuted by it, and describing with reasonable cer- tainty and accuracy the lands, property and estate which it will be necessary for it to acquire for the purpose of such enterprise, in said St. Louis county, also setting forth the name of each and every owner, incumbrancer, or other person interested in the same, or any part thereof, so far as the same can be ascertained by the public records and by view of the premises and other inquiry touching the occupation thereof, and praying the appoint- ment of three disinterested and competent persons as commissioners, to ascertain and determine the compen- sation to be made to such owner or owners, and to all tenants, incumbrancers, and others interested for the taking or injuriously affecting such land and real estate : and it appearing to the satisfaction of the court that a notice stating briefly the objects of the petition, and con- taining a description of the lands proposed to be acquired, and stating that said petition would be presented to this court at the time and place in said notice mentioned, was 02 STREET RAILWAY LAW. duly served on each of the persons named therein as owners or otherwise interested in said land, at least ten days previous to the time designated in said notice for the presentation of said petition, in the manner prescribed by the statute, and this court having duly heard the said petition and the proofs and allegations of the parties, William W. Billson, Esq., appearing for the petitioner and R. R. Briggs, Esq., for the land owner, William E. Richardson; no others appearing; and this court being satisfied from the evidence and proofs in the matter that the public interests require the prosecution of said enterprise by the petitioner, and that the lands and real estate proposed to be acquired are required and neces- sary for the purposes of such enterprise, and that the said petitioner is duly authorized by law to prosecute the same. Now, therefore, on motion of William W. Billson, Esq., attorney for said petitioner, it is ordered that the enter- prise set forth in said petition may be prosecuted by said petitioners, and that M. R. Baldwin, B. F. Myers and William E. Lucas, three competent disinterested persons resident in said county, be and are hereby appointed commissioners to ascertain and determine the amount to be 'paid by such corporation to each of such owners and persons interested as compensation for his or her damages, by reason of the taking or injuriously affecting any such lands, property, estates or interests ; that the first meeting of such commissioners shall be held at the office of the clerk of this court, in the city of Duluth, in said county, on the 25th day of January, 1892, at 11 o'clock a. m., and that the compensation of said commissioners be and is hereby fixed at the sum of $10 per day, for each of them, for actual service. STREET RAILWAY LAW. 93 Let this order be recorded in the minutes of this court. Dated January 4th, 1892. Chas. M. Start, Judge of the 3rd Jud. District, acting for a judge of the nth Jud. District. MEMORANDUM. i. While the petition contains all the allegations required by S. 14 Ch. 34 G. S. 1878, yet the court must be satisfied by competent proof, before it can appoint commissioners, that public interests require the prosecution of the proposed enterprise. This is a material matter upon which the land owner may join issue. S. 17 Ch. 34 G. S. 1878. Chic. B. & N. R. R. Co. vs. Porter, 43 Minn. 527. It would therefore seem that it should be alleged in the petition. However this may be, it is evident from the course of the trial that the rights of the land owner cannot be prejudiced by allowing the request to amend, and the petition may be amended to conform to the proofs, by inserting in the petition after the word " That," near the top of page 2 thereof, the words " public interests require the construction and operation of said double track line of railway." 2. Chap. 31 Gen. Laws 1881, referred to in the land owner's answer, has no application to the case at bar. The statute was intended to authorize railway corpora- tions to conduct extensions and branches which they were not authorized by their original charters to build. 3. Has the petitioner the right to exercise the power of eminent domain for the purposes set forth in the petition? 94 STREET RAILWAY LAW. If it has not, it is because and only because of the pro- visions of its articles of incorporation, for it is a corpora- tion organized to construct and operate railways under Title i, Ch. 34 G. S. 1878, which authorizes such corpor- ations to exercise the power. But the petitioner by its charter is limited to the construction and operation in and along the streets and highways. It is not authorized to build an ordinary commercial railway over private prop- erty, for its roadbed is to be in the streets. Under the expressly prescribed and limited purposes of its incorporation , it may be conceded (without so deciding) that the petitioner is simply a street railway corporation whose fundamental business is to build and operate rail- ways along the streets for the accommodation of the local street travel, and hence is without the power of eminent domain to the same extent as ordinary railway corpora- tions possess it. Thomson & Houston El. Co., vs. Simon 23 p. 147. Matter vs. S. B. R. R. Co., 119 N. Y., 141. But authority to use the means necessary to attain these objects of its incorporation is conferred upon petitioner by necessary implication, therefore, if as an incident to and for the purpose of enabling it to safely and efficiently discharge its duties to the public as a common carrier of passengers, it becomes necessary for the petitioner to acquire private property by condemnation, it has the power to do so. If it is reasonably necessary, in order to safely accomplish the purpose of its creation, and public interests require it, a railway corporation organized under Title 1, Ch. 34, although it is an ordinary street railway, may acquire by condemnation the right to elevate or lower its tracks, above or below the surface of the streets, or a right of way over -private -property from one street to another. STREET RAILWAY LAW. 95 Now it appears from the evidence in this case, that the petitioners railway line connects with that of the Motor Line Improvement Company's line, which together make a continuous line of railway in the public streets of Duluth, from the central and business portions thereof to Wood- land Park, a suburb of and within the corporate limits of the city of Duluth, that the petitioner operates this line, using electricity as a motive power in moving its cars thereon, that this line is one of public utility and necessity but that by reason of a heavy and dangerous grade in the street at a given point on the present line, it is at some ■ seasons of the year unsafe and impracticable to keep within the street with said line over and up this grade, and that the safety of the traveling public and proper operation of the line require that this grade should be avoided. This can only be done by a change of the line, by diverting it from the street at the point indicated in the petition and intersecting the street again at the point of the termination of the proposed line over private prop- erty. This proposedand necessary change is fairly within the powers of the petitioner, as limited by its charter, and for which it may exercise the power of eminent domain, even if it be conceded that the petitioner has not the general power of condemnation possessed by ordinary railway corporations. )6 STREET RAILWAY LAW. Joint Use of Track in Hands of Receiver. The amount to be paid for the joint use of a street railway track in the hands of a receiver may be determined by the Court appointing the receiver, where the statutes give the right to such use on payment of one-half the cost of construction. THE Pacific Railroad Company is the owner of a street railroad, operated by means of a wire cable, for the carriage of persons in the city of Los Angeles. On January 20, 1891, Edward W. Rus- ell commenced an action against said company, its stock- lolders, and a large number of creditors, praying for the ppointment of a receiver for said road. On the day the omplaint was filed, J. F. Crank was appointed receiver, vith directions to take charge of the street railways under he control of the Pacific Railroad Company. Crank [ualified and took possession, and has ever since continued operate the road under the order of the Court. On anuary 26, 1891, the Los Angeles Consolidated Electric lailway Company presented to the Superior Court a letition in said cause, setting forth that the petitioner had ntered upon the construction of its line of road, as author- zed by certain ordinances, and in the further prosecution if its work it was necessary that it should intersect the racks of the Pacific Railway Company, and run along he same for a distance of three blocks; and praying an irder authorizing it to operate over and on said tracks or said distance, and directing the receiver to grant all lecessary facilities therefor, and for a further order fixing he amount of compensation which petitioner should pay or the right to use the tracks as aforesaid. Section 499 of the Civil Code provides that " two lines if street railway, operated under different managements, nay be permitted to use the same street, each paying an STREET RAILWAY LAW; t)1 equal portion for the construction of the track and appur- tenance used by said railways jointly ; but in no case must two lines of street railway, operated under different man- agements, occupy and use the same street or tracks for a distance of more than five blocks consecutively." The question to be determined is simply whether the Court, which, through its receiver, has the custody and control of the insolvent corporation's property, has the power to determine the compensation, or whether the electric company must treat with the cable company, and, upon failure to agree as to the amount to be paid, bring an action therefor against the receiver, with the permis- sion of the court. There are none of the elements of an ordinary condemnation proceeding involved in the litigation. There is no private property to be taken for public use, — .no occasion to exercise the right of eminent domain. In the case before us, the electric company has the right, under the statute and its franchise, to use the tracks of the cable company upon payment of one-half of the cost of the construction thereof. The only question to be determined is, What is the amount due the cable com- pany? It is like any other claim for damages or compen- sation in favor of a corporation whose property is in the hands of a receiver, and is to be determined in the same way. The cases all hold that, while it is, under certain circumstances, proper to direct the prosecution of an action at law against the receiver to determine the amount of compensation or damages to be paid, the better and more commonly recognized practice is to apply for relief by petition to the court in which the receiver is acting. (Sup. Ct. Cal. Pacific R. Co., v. Wade. 13 L. R. A. 754- 98 STREET RAILWAY LAW. Personal Injury at Street Crossing — Negligence — Evi- dence. In an action against a street railway company for the death of plaintiff's husband, it was shown that he and plaintiff had stopped near defendant's south track at a street crossing to await the passing of a cable car on the north track, and that as soon as it had passed they attempted to cross, but were scarcely over the first rail of the south track when they were struck by a car thereon, which was almost upon them when they started, and the husband suffered injuries of which he died. The street was straight and well lighted, and the night was clear, and the car by which they were struck had a headlight with a reflector. The only evidence that the husband looked in the direction from which the car was approach- ing was given by plaintiff who, however, only inferred that he did so because "it was the natural thing to do." Held, that the accident was due solely to the negligence or misfortune of the deceased. The fact that the gripman of the car that struck deceased was, at the moment of the accident, looking to one side, is not sufficient to show him guilty of negligence, when he had immediately before seen plaintiff and deceased by the side of the track apparently engaged in conversation, and so had no reason to anticipate that they would attempt to cross in front of his car. (Supreme Ct. N. Y. Scott v. Third Ave. Ry. Co., 16 N. Y. Supp. 350.) Note. — One walking on a railroad track, who, on seeing an engine approaching in front, stepped over on another track without looking behind him, and was struck by an engine coming from the rear, cannot recover for the injuries. Sup. Ct. 111. Boden v. Chicago &c. R. Co. 24 N. E. Rep. 425.— Ed. STREET RAILWAY LAW. 99 Street Railway — Injury to Horse on Track — /Manage- ment of Motor Car — Evidence of Negligence. The evidence showed that plaintiff's driver was hold- ing the team beside the track, that when they saw the motor coming, they grew uneasy, and when it was about 125 feet away, one of the horses "danced" onto the track and continued there until struck by the motor; that the motor was not going at the usual speed, but was going rapidly down grade. It did not appear whether the motor could have stopped after it was seen by the engineer that the horses were on the track. Held, that there was no evidence of negligence on defendant's part to support a verdict for plaintiff. (Sup. Ct. Ore. Coughtry v. Williamette St. Ry. 27 Pac. Rep. 1 03 1.) (Note. — A motor man on an electric street car may act upon the pre- sumption that teams standing at the side of the street are hitched, or, if not hitched, are not liable to become frightened and run away. Tex. Ct. App. North Side Street Ry. Co. v. Tippins. 15 S. W. Rep. 1067. 1 Street Railway Review 221. — Ed.) Passenger alighting from moving Car — Unlawful Speed — Failure of Conductor to give Warning. It is gross negligence in a passenger on a street rail- way to jump from the car when it is going at a speed of 20 miles an hour, whether he knows or does not know that the car is going so fast. That the city ordinance restricted the speed of the car to 7 miles an hour would make no difference. The presence of the conductor and his silence on hear- ing another passenger tell the plaintiff that the car was not going to stop and he had better get off, will not justify him in jumping from the car and causing his own injury. (Sup. Ct. Ga. Masterson v. Macon City & Suburban St. R. Co. not yet reported.) IOO STREET RAILWAY LAW. Injury to Trespasser — Driving Boy from Car with Whip. The deceased, a boy four years and five months of age, while playing in the street, trespassed upon one of the defendant's cars, and was compelled to leave it by the driver, who struck him twice with the whip. To escape this, the boy ran upon the other track and fell under the wheel of another car moving thereupon. Held, that there could be no recovery. (Ct. Com. Pleas Philla. Mack v. Lombard & South Streets Passenger Ry. Co. 47 Leg. Intel. 26.) Street Railway — Persons entering moving Cars — Negli- . gence. Plaintiff, in an action against a horse railway company, testified that on the approach of one of the defendant's cars, he signalled it to stop; that the speed of the car was slackened; that as it passed, he seized the hand-rail on the rear platform and placed his foot on the step ; that the brake was released and the car started with a sudden jerk, throwing his feet from under him and dragging him some distance, injuring him .severely. Held, that the question as to negligence on the part of defendant and contributory negligence on the part of plaintiff was for the jury. (N. Y. Ct. App. Morrison v. Broadway & S. A. R. Co. 29 N. E. Rep. 105.) Corporations — Consolidation — foreclosure of Mortgage — Intervention by Stockholders. In a suit to foreclose a railroad mortgage, certain per- sons petitioned to be made parties defendant, alleging that the defendant company was made up by an illegal consolidation of three other companies, in one of which STREET RAILWAY LAW. IOI they were stockholders ; that they never consented to or recognized the validity of the consolidation, and were not bound by it or by the act of the new company creating the mortgage; that the new company "is perhaps con- cluded by its conduct in the premises from making defense" to the suit; that the original company, of which they were members, had no officer or representative upon whom they could call to make defense for them ; and that the counsel for the consolidated company declined to set up the defense which they desired to make. Held, that these facts gave no right to intervene as defendants, especially as there was no charge of fraud or collusion, and the proper remedy is by an independent suit. (U. S. Cir. Ct. N. D. Ga. Central Trust Co. v. Mari- etta &c. R. Co. 48 Fed. Rep. 14.) Contract of Employment — Value of Services — Opinion Evidence — Limitations. In an action for work and labor performed, it is proper for plaintiff to put to ordinary witnesses hypothetical questions in regard to the value of the services alleged to have been rendered. Where services are performed under an agreement which does not fix any certain time for payment, nor when the services shall end, the contract of employment will be treated as continuous, and the statute of limitations will not begin to run until the services are ended. (App. Ct. Ind. Graves v. Pemberton, 29 N. E. Rep. 176.) Injury by Falling of Derrick — Negligence — Fellow Servant. In an action by a servant against a corporation for per- sonal injuries occasioned by the falling of a derrick due 102 STREET RAILWAY LAW. to the pulling up of the post to which one of the guy ropes of the derrick had been fastened, which post was set by a workman under the direction of the superintend- ent, the question whether the superintendent is a fellow- servant is one of law and not of fact. There was no defect in the derrick, guy ropes, post or piece of timber used to make the post more secure. The derrick was changed from place to place as occasion required and the moving and adjusting it was one of the duties of the workmen. Held, that if there was any negligence in the manner or place in which the post was sunk, it was the negligence of the workmen and not of the superintendent as representing the master. (Sup. Jud. Ct. Mass. McGinty v. Athol Reservoir Co. 29 N. E. Rep. 510.) STREET RAILWAY LAW. IO3 Street Railway Track wrongfully torn uf by City. A court of equity will enjoin a municipality from interfering with the relaying of a street railway wrongfully torn up by the defendant The petition alleges that J'ohn N. Stewart, the petitioner, had constructed at great expense a street railway along certain streets in the village of Ashtabula, in accordance with the provisions of an ordinance passed by said muni- cipality, May 19th, 1883; that he maintained and operated said railway from the time of its construction until July 19th, 1890, and is still possessed of the right to maintain such railway. Plaintiff alleges that by the terms of said ordinance, the grant was to continue for the period of twenty-five years from its date. The plaintiff then alleges that he complied fully with the terms and conditions of said ordinance. He further says that if it shall appear that he did fail in any respect to keep his railroad in the condition provided for in the ordinance, it was through the negligence and fault of the village of Ashtabula in not keeping in order the streets of the city. The petition states that, notwithstanding the premises, in the night time of the 19th of July, 1890, and during the following Sunday, the said defendants unlawfully, riotously, maliciously and forcibly did enter upon the said railway, stop the passage of cars thereon, tore up its rails, removed its ties, greatly injured its road- bed, and purposely and maliciously destroyed the material of which such roadbed was constructed, and unlawfully converted the same to their own use, and did thereby forcibly prevent the said plaintiff from using and occupying the said railway, as he lawfully had the right to do. 104 STREET RAILWAY LAW. The plaintiff says that he has at various times en- deavored to restore said railway, but has been forcibly prevented from so doing by said defendants, who threaten to continue said force to the end of preventing the restoration of the same by the plaintiff, unless they are enjoined from so doing by an order of his court. The plaintiff therefore prays that the defendants may be enjoined from interfering with or preventing him from relaying or restoring said street railway. To this petition there is a demurrer, based upon the ground that the petition does not state facts sufficient to constitute a cause of action; secondly, that it does not state facts sufficient to entitle the plaintiff to the relief prayed for, on the ground that he has an ample remedy at law. The questions that are raised in this case are somewhat novel. There are two cases cited to us, and they are both decided by the Supreme Court of Pennsylvania. One is a case where, by the direction of the council, a portion of the track of a street railway was torn up, and subsequently relaid by the street railway company, and subsequently torn up by the city authorities. An injunc- tion was allowed by the Supreme Court of the State of Pennsylvania to enjoin the city authorities from interfer- ing with a restoration of the road. In that case it would seem that the controversy between the company and the municipal corporation, was in regard to relaying or main- taining in the streets what is called and known as a Tee- rail. The other case arose between the lessee and the lessor of a mine, in which case the lessor in the controversy had torn up the tramways of the lessee running to the mine, and by force prevented him, the lessee, from rebuilding STREET RAILWAY LAW. 105 and relaying his tramways. There was this further cir- cumstance, as shown by the record : that the tearing up of the track " was evidently done in haste to avoid the service of an injunction." In that case the Court issued its order restraining the landlord from interfering with the defendant in the restoration of his tramways to the mine. These are the only cases bearing directly upon the question, which we have before us, that we have been able to find. It is not controverted by the counsel for the defense that if the allegations of this petition are true, the plaintiff has some remedy; but it is insisted that it is a remedy at law. For ordinary trespasses, there is no doubt but that a party has ample remedy at law, and in that case ordi- narily a court of equity will not exercise its high power for the purpose of preventing mere trespasses; yet it is true that courts often do exercise their power to prevent trespasses. A case in which this question is somewhat reviewed will be found in the 33 Ohio State Reports, page 545, where the rule seems to be well established that courts of equity will take jurisdiction and act, although the party may have a remedy at law, if the remedy at law is not ample and complete as can be afforded in equity. The case before us is one of that class where it is doubtful whether the remedy shall be at law or in equity. When a person has submitted his case to the tribunal without objection, or where he for the first time makes his objection on the trial that the parties have an ample remedy at law, in that case a court of equity will pro- ceed to final disposition of the cause. But in the present 106 STREET RAILWAY LAW. case, that objection is taken in the first instance by demurrer. The parties defendant have raised this ques- tion at the very first step ; there is no question of waiver. Citing a case in the 5th Wall, page 78, " It is not enough that there is a remedy at law; it must be plain, adequate, and complete; or, in other words, as practical and efficient to the ends of justice and its proper administra- tion, as the remedy in equity." Citing the 3d Peters 210, 215. " The case before us falls within a general class of which equity takes cognizance. It is brought against one, who under claim of right, is committing and threatens to continue to commit permanent trespass upon plaintiff's land, and who is asserting a right calculated to produce strife and litigation. It may be conceded that the plaintiff had a remedy at law; yet it is quite doubtful whether that remedy is practical and efficient to the ends of justice as the remedy in equity." * * * * For certain portions of these injuries, there could be no question but that he might be fully compensated in dam- ages ; but under the terms of this lease, for it is in effect a lease, he had the right to use these streets in the main- taining and running of his street railway, for twenty-five years. After the expiration of the seven years, while he was fully carrying out, as he alleges in his petition, in every particular the conditions of his contract with the corporation and the provisions of the ordinance, they tore up his road. For eighteen years he had still the right under that contract, and under that ordinance, if the allegations in his petition are true, to keep, maintain, run and receive the profits 01 a street railway, and that it sought to be prevented by force of the party with whom STREET RAILWAY LAW. IO? the contract is made. Can that be compensated for ? — This interest for eighteen years ; this right of his to main- tain and run his railway with the probable increasing business and profits which he would derive from the road, growing out of the growth of the City of Ash- tabula. This is a subject which we have given a great deal of consideration, and with any view which we take of it, we are unable to see how and in what manner he can be compensated. Can it be said, and ought it to be said, if what this man says in his petition is true, that the City of Ashtabula or any other city or corporation in the State of Ohio, can take into its own hands any street railway in it and tear it up by force and against the objection of the parties who have put it there, and who have the right to maintain it there, and then come in and say, " We have done this by force, but a court of equity has no power to give any relief. We have the right to gobble up your franchise, your right to the use of our streets, and the maintaining of your railway for whatever term that we may have given them to you, and the only remedy is for you to recover such damages, if any, as you may recover; but your right to the railway is subject to the control and discretion of the corporation." That would not seem to be right; that would not seem to be justice, so long as the railway company was performing its duties, and performing its contract as is alleged in this plaintiff's petition. There may be some difficulty, as is suggested by Counsel, if an order should be issued in this case finally restraining the city authorities of Ashtabula from interfer- ing with the restoration of this road. It may be that a 108 STREET RAILWAY LAW. court of equity would not agree to all the relief which the party has prayed for, or it might be that a court of equity upon a final hearing might devise a way and manner in which the road should be rebuilt and should be carried on, respecting and carrying out the rights of both parties under the contract. But very likely this only could be done, and only would be done by a court of equity, when it was shown that the plaintiff had fully performed, and was fully performing the contract on his part. We think in this case that under the allegations of this petition, a court of equity has the power, and ought to have the power, to restrain the corporation from interfer- ing with him in the restoration of the railway, and the demurrer is therefore overruled. (Circuit Court, Ashtabula District, Ohio. Stewart v. Village of Ashtabula. Not yet reported.) Note. — The following is from High on Injunctions: To warrant the interference of equity in restraint of trespass, two con- ditions must co exist: first, complainant's title must be established; and second, the injury complained of must be irreparable in its nature. And to come within the rule the injury must be of such a nature as not to be susceptible of adequate pecuniary compensation in damages. Nor will equity interfere to restrain a trespasser simply because he is a tres- passer, but only because the injury threatened is ruinous to the property in the manner in which it has been enjoyed, and will permanently impair its future enjoyment. Sec. 701. Courts of equity will not restrain the action of municipal officers when the persons aggrieved by iuch action have a full and complete remedy at law. Sec. 1242. — Ed.) Action Against Street Railway for False Imprisonment — Evidence — Absence of Driver as Witness. Plaintiff, in action against a street car company for false imprisonment, following an arrest for alleged dis- orderly conduct in defendant's car, testified in chief that SEREET RAILWAY LAW. IO9 there were passengers in the car, and that he did not hear them complain of him. Held, that testimony by the officers who made the arrest that the passengers in the car at the time expressed their approval of the arrest was competent to disprove plaintiff's testimony. In such action defendant, to excuse the absence of the driver of the car as a witness, may give evidence of its search and inquiry for the driver, and the inability to find him, he being no longer in its employ. (Supreme Ct. N. Y. McGuire v. Broadway & S. A. R. Co. 16 N. Y. Supp. 922.) Boy Stealing Ride — Injury by being thrown under Car — Negligence. The evidence in an action for injuries alleged to have been sustained through defendant's negligence, showed that plaintiff, a boy ten years old, was carrying water for some third person when defendant's car passed; that, on hearing some one say that the driver wanted him, plaintiff went over to the car, where some man took his bucket, and put it and the boy on the platform of the car; that the driver repeatedly ordered him off, and at one time put him off; that he got on again and, after the car had' started, jumped off, or was crowded off by the passengers, and was thrown under the car and injured. It further appeared that soon after the accident plaintiff said that it was his own fault and not the driver's. There was nothing to show that the driver knew that plaintiff was still on the car when the accident occurred. Held, that defendant was not guilty of negligence. (Sup. Ct. Pa. Wrasse v. Citizens' Traction Co. 23 Atl. Rep. 345.) IIO STREET RAILWAY LAW. Electric Railways — Interference with Poles and Wires — Moving Buildings along Streets — Injunction. The Act for the incorporation of cities giving the Com- mon Council exclusive jurisdiction over the streets, does not take from the courts the authority to decide con- troversies concerning property rights, and, where such council fails to prevent persons from moving a build- ing along a street and thereby interfering with the operation of an Electric Street Railway by cutting down its wires and poles, such interference may be restrained by injunction. Where the Street Railway Company was organized under the statute relating to such corporations, and which authorized the employment of any kind of power in com- mon use except steam, and the company, under authority from the City Council to use electricity, had constructed and commenced to operate such railway, this was an assumption of its corporate functions under color of law and claim of right, and the right to use electricity could not be attacked in such injunction proceeding. (Sup. Ct. Ind. Williams v. Citizens' Ry. Co. 29 N. E, Rep. 408.) Injury at Crossing of Horse Railway and Steam Rail- way — View of Track Obstructed — Apprehension qf Collision — Passenger Jumping from Car. At a crossing of a horse and a steam railway, the view of the latter's track was obstructed until within fifteen feet of it. A horse car was driven slowly upon the crossing, without warning from a gateman stationed at the cross- ing by the railroad company, until the horses were on the crossing, when, as an engine approached on a down STREET RAILWAY LAW. Ill grade, the gateman snouted to the driver of the horse car to stop, and commenced to lower the gates guarding the crossing, but when they were half way down, shouted to him to go on, and began raising the gates; others- shouted contradictory directions to him. The driver stopped, or nearly so, but before he had stopped, plaintiff, a passenger in the horse car, in apprehension of a collision, jumped from the car and thereby was injured. There was no real danger of a collision, nor, from the driver's standpoint, any appearance of danger. He had his horses under control, and when directed by the gate- man to go on, continued across the track. Held, that there was no negligence on the part of the driver which would render the street car company liable for plaintiff's injuries. In such passenger's action for her injuries, evidence was received of the acts of the passengers and of the outcries by them and by by-standers. Held, that this was admissible as part of the res gestae, and as evidence that plaintiff was actuated by reasonable apprehension. (Sup. Ct. Mo. Kleiber v. People's Rv. Co. 17 S. W. Rep. 956. Construction of Charter — Use of Street — Branches Con- necting with other Railways — Pennsylvania Statute". A city ordinance giving consent to the exercise of cer- tain powers granted by the charter of a corporation cannot enlarge those powers or confer a right outside of them. In the construction of charters, it is a well settled rule that, so far as the rights granted thereby encroach upon public or common rights, they are to be construed most strongly against those setting them up and in favor of 112 STREET RAILWAY LAW. the public. They are not extended beyond the express words in which they are given, or their clear import, and whatever is not given in unequivocal terms is to be deemed as expressly withheld. The Act of April 21, 1828, by which the German- town Passenger Railway Company is incorporated, in authorizing it to construct such branches as may be necessary to connect it with any other railway within the City of Philadelphia, refers only to the railways then in existence. Even if it were otherwise, the corporation would not be permitted to prevent the construction of a railway by another company over certain streets for the mere reason that the city had given it (the Germantown Passenger Railway Company) its consent to the building of such a connection, no work of any kind having been done upon it. If the Company does not promptly make use of its right to build the road, it cannot be allowed to prohibit others from obtaining and exercising such a right. (Ct. Cm. Pis. Phila. People's Passenger R. Co. v. Marshall St. Ry. Co. 47 Leg. Intel. 26. STREET RAILWAY LAW. 113 Action Against a Corporation for Slander. An action for slander will not He against a Street Railway Company for language used by its superintendent when discharging an employe. Plaintiff was a conductor in the employ of defendant, the St. Paul City Railway Company. He was discharged by the superintendent of the company and was told by the superintendent as the reason for his discharge, "You have turned in a short register and have traded transfers." In sustaining a demurrer to the declaration the court said: It is broadly stated in Townshend on Slander and Libel, Sec. 265, pages 505-506, (and for that matter in all elementary works on the subject to which my atten- tion has been called) that a corporation cannot be guilty of slander, no case tending to hold to the contrary save that of Gilbert vs. Crystal Fountain Lodge, 80 Ga. 284, (reported also 12 Am. Repts. 255.) In that case the court says : " On principle we think of no reason why a partnership might not slander a third person through agents or members authorized or em- powered to defame orally, or by adoption and a ratifica- tion after defamation by slanderous words." It will, how- ever be noticed that this remark was not necessary to the decision of the case, it being placed on other grounds. However that may be, the complaint at bar is radically defective in failing to show authority from defendant cor- poration to the person who is said to have uttered the de- famatory words to so utter them on defendant's behalf or any ratification or adoption by defendant after they were uttered. True, it says Mr. Sloane was the superintendant of defendant's business, and authorized to hire and dis- charge men, and that he used the objectionable language on behalf of defendant in discharge of his duties. But it 114 STREET RAILWAY LAW. does not follow that he was authorized to give false and defamatory reason or indeed any reason for his action. There is nothing in the nature of the business of the de- fendant for which authority to its superintendant to gratu- itously utter a slander can be applied. (Murphy vs. St. Paul City Ry. Co., Dist. Ct. Minn., Ramsey Co., not reported.) Liability of Street Railway for Refaving — Ordinance — Provision for Arbitration. A borough ordinance, giving permission to a passenger railway to occupy its streets, provided that the company should reconstruct the streets used with the same kind of material as used by the borough authorities, and keep the same in repair, does not authorize the borough to compel the company to pay the cost of repaving with Belgian blocks a street macadamized with cinder, etc., and so reconstructed by the company when it laid its tracks. The ordinance further provided that, if the street was not macadamized, the company should use material furnished by the borough. Having failed in this case to furnish the material, they could not recover on any con- struction of the ordinance. It seems that the provisions of a borough ordinance for the collection of cost of paving, one by the apportion- ment of arbitrators, and another by filing the claim and collecting it in the manner prescribed by an Act of As- sembly, reciting the Act by title only, do not oust the jurisdiction of the court in an action of assumpsit, the pro- vision as to arbitration being too indefinite, and the other provision being a special law for collecting debts, etc., in violation of art. in, § 7» of the constitution, and an ex- tension of the provisions of an Act by reference to its title only, in violation of art. in, § 6 of the constitution^ STREET RAILWAY LAW. IIS Sup. Ct. Pa., Norristown vs. Passenger Ry. Co., i Leg. Intel, adv. Rep. 460. Lease of Franchise — Compensation for use of Street — Joinder of Plaintiffs. The legality of a lease by one street railway corpora- tion to another, of its franchises and roadbed can only be called in question by the commonwealth, or by a private suitor who has sustained a private injury for which he has legal redress. The use of a street for a passenger railway, whether the cars be propelled by horse-power, cable or electricity, imposes no additional servitude upon the street, and hence does not entitle the owner of property abutting on the street to compensation under art. xvi, § 8, of the con- stitution. The first section of the Act of March 22, 1887, which provides that corporations organized thereunder shall have power to " enter upon any street upon which a pas- senger railway now is, or may hereafter be constructed, etc.," authorizes such corporations to enter upon streets not before occupied by passenger railways, and lay their own tracks thereon in the first instance. Where the cause of complaint is common to all the plaintiffs, the right under which all claim is the same as to each, the complaint of all is against the same defend- ant for acts which affect all alike and in the same manner, the defence set up is common to all the plaintiffs, and the testimony, proofs and decrees are alike as to all, a bill filed by several such plaintiffs against a common defend- ant is not multifarious. Sup. Ct. Pa., Rafferty v. Central Traction Co., 1 Leg. Intel., Adv. Rep. 419, S. C. Pittsb. Leg. Jour. 319. Il6 STREET RAILWAY LAW. Collision of Cable Trains — Presumftion of Negligence — Error Cured by Remittur — Evidence — Physician's Bill. When the evidence of an injury to the plaintiff and the circumstances under which it was inflicted, are alone suf- ficient to raise a presumption of negligence on the part of the defendant, and no evidence is offered to rebut that presumption, so that the plaintiff is entitled to recover regardless of the evidence admitted, such evidence, though variant from the allegation, will not be such an error as to require a reversal. As a general rule, proof of an injury occurring as the proximate result of an act which, under ordinary circum- stances would not, if done with due care, have injured any one, is enough to make out a presumption of negli- gence, and this rule applies even when no special relation like that of passenger and carrier exists between the parties. In a suit by a passenger for an injury, the mere proof of the accident by which the injury was inflicted may be sufficient to throw the burden on the carrier to show that he used due care; and when there is an absence of vis major, and it is shown that the injury happened from the abuse of agencies within the defendant's power, it will be inferred from the mere fact of the injury that the defend- ant acted negligently. Even if such presumption is one of negligence gen- erally and not of any specific negligence, it will be suf- ficient to throw upon the defendant the burden of rebutting the specific negligence alleged. When a train of cable cars on which the plaintiff wr.3 a passenger, standing on the platform of the rear cnr. came to a stop when about half way through a -tunr.e • and remained standing several minutes, when another STREET RAILWAY LAW. 1 17 train descending through the tunnel collided with the rear car of the standing train and thereby inflicted a personal injury, it was held that the mere fact of the injury raised a presumption of negligence, and which was sufficient to sustain a general charge of negligence in the running and operating of the defendant's road and the cars propelled thereon. Under a general charge of negligence in the running and operation of the defendant's cars, whereby an injury was received by a collision of cars, evidence of the struc- ture and condition of the colliding car and of the fact that it was not supplied with a sand-box or appliance which would have made it more easy to slacken or arrest its progress on a descending grade, is material and proper, as bearing on the question of the manner in which it should have been run and operated and the character and degree of care with which it should have been managed, although the structure of the car and the want of a sand- box may not be alleged specifically as negligence. The fact that evidence admitted in an action based on negligence may tend to support a charge of negligence not made by the declaration, will not render it improper if it has a material bearing upon one or more of the charges of negligence made. The defendant may, by instruction, limit such evidence to the charge made in the declaration. In an action to recover for an injury resulting from a collision of cars through negligence, the declaration alleged, as an element of special damages, that his arti- ficial leg, of the value of $200 was destroyed, but there was no averment as to the purchase of a new one. On the trial there was evidence of the value of such leg. The plaintiff was allowed to testify that he paid $207 for a Il8 STREET RAILWAY LAW. new leg. The Appellate Court required plaintiff to remit $207 from his judgment and affirmed the same as to the residue. Held, that the error in the admission of the evidence as to the cost of the new leg was thereby elim- inated from the case. Where the plaintiff in an action to recover damages for personal injury, alleges that he was compelled to and did pay out and expend large sums of money in and about being cured of his injuries, it will not be sufficient for him to prove merely that he has paid a certain physician's bill in order to its recovery, but he must also show that by reason of his injuries he has necessarily incurred such bill and that it is reasonable. In such case the court, on specific objection may, before admitting proof of the plaintiff's liability incurred in curing himself and its amount and reasonableness, require an assurance from counsel that he will follow up the evidence by proof of payment. On failure to prove that such a bill has been paid, defendant should move to exclude all evidence in relation to the physician's bill, or ask the court to instruct the jury to disregard it. Where the question of a physician's qualifications and right to practice in his profession arises only collateral^, proof that he has practiced medicine in this State for a long time will show prima facie that he was lawfully entitled to practice. But if he were to sue to recover for professional services, he would doubtless have to show affirmatively his compliance with the law regulating the practice of medicine. In an action to recover for a personal injury, the plain- tiff was called but no question was asked him as to his health prior to the time of his injury. Defendant pro- posed on cross-examination to ask him questions as to STREET RAILWAY LAW. II9 whether, at any previous time, he had been afflicted with any diseases, which the court on objection refused* Held, that such questions were not within the scope of a proper cross-examination, and the exclusion was justified on that ground, though the record failed to show that the objection was on that ground. Where a party suing for a personal injury had a leg amputated ten years before the injury complained of, the defendant sought to prove that at a period anterior to such amputation the plaintiff had some disease, which, though dormant from the time of the amputation to the date of the recent injury, may then have manifested itself again, and have been the real cause of some portion of his sufferings. Held, that the matter thus sought to be investigated was too remote and the inference sought to be drawn from it too conjectural, and that the proposed evidence was properly refused. Sup. Ct. 111. North Chicago Street Ry. Co. vs. Cotton, 24 Chi. Leg. News 252. Street Railway Crossing — Care Required — Collision ■with Team. Upon the trial of a case for injuries to the team of the plaintiff by being struck while crossing the tracks of an electric railway by a car upon said tracks which ran at right angles to the street upon which the team was travel- ing, the judge instructed the jury, inter alia, that there was no rule of law that required the driver to " stop, look and listen," but it was for them to determine what it was the driver's duty to do, and whether he actually did it on this occasion. Held, error thus to leave the jury without any rule of law to apply and at liberty to make one to suit themselves. 120 STREET RAILWAY LAW. A person about to cross a street upon which is located a street railway must exercise a reasonable amount of care to avoid contact with a moving car. It may not be necessary to stop on approaching such a crossing, but it is necessary to look before driving upon the track. Sup. Ct. Pa. Carson vs. Federal St., etc., Passenger Ry. Co. 22 Pittsb. Leg. Jour. 345. STREET RAILWAY LAW. 121 Ordinance requiring Street Cars to run all Night. An ordinance of the Common Council requiring street cars to be run at least one car every twenty minutes both ways, between the hours of twelve, midnight, and six in the morning, is presumptively a reason- able regulation, and the burden is upon the railroad neglecting to comply therewith, to show that it is unreasonable. This was an action to recover a penalty for an alleged violation by the railroad company of an ordinance of the Common Council of the City of New York, which required the several street surface railroad companies to operate their roads "as frequently as public convenience may require, and not less than one car every twenty minutes between the hours of 12 midnight and 6 o'clock a. m. each and every day, both ways, tor the transportation of passengers." In i860 the Legislature passed " an Act to authorize the construction of a railroad in Avenue D, East Broad- way, and other streets and avenues of the City of New York." In its second section it was provided as follows: " Section 2 Said railroad shall be constructed on the most approved plan for the construction of city railroads, and shall be run as often as the convenience of passengers may require, and shall be subject to such reasonable rules and regulations in respect thereto as the Common Council of the City of New York may, from time to time, by ordinance prescribe." There is not here any question of an alteration of a charter or of any impairment of a contract with the State. The defendant took the charter, with all the conditions expressed in it, and by acceptance has agreed that the operation and enjoyment of the privileges and franchises conferred shall be in subordination to such reasonable regulation as the Common Council of the City shall prdain. By accepting the charter the grantees voluntarily 122 STREET RAILWAY LAW. consented to be bound by all of its provisions and condi- tions, and the corporation cannot complain of the enforce- ment of any, if by a fair reading of the language the enforcement in the particular manner is authorized. The question then simply is whether this ordinance of the Common Council, which was adopted with respect to all the surface roads in the City, was a reasonable regulation with respect to this defendant; for, if it was not, then it is not obligatory within the meaning of the act of incor- poration. The authority of the Common Council in prescribing regulations was qualified as to this defendant, and when it is sought to recover a penalty, it is competent for the defendant to show that it should not apply to it, because unreasonable. As in this case the regulation affects the running of cars at stated intervals of time, its reasonable- ness, I think, may properly be considered in connection with the other language of the second section of the char- ter, which requires the corporation to "run as often as the convenience of passengers may require." Not that that language controls or decides the question of reasonable- ness ; but it bears upon and illustrates the design of the Legislature in subjecting the corporation to regulations upon that subject. In the passage of the ordinance in question, the presumption is in favor of its reasonableness, and the burden was upon the defendant to show the con- trary. The presumption is open to rebuttal by this defendant by giving in evidence facts which show that in its case its enforcement would be unreasonable, and that the convenience of the public or of passengers did not require such a regulation. It was therefore competent for this defendant, upon the trial, to give evidence of such facts as would establish, or tend to establish, that the conven- STREET RAILWAY LAW. 123 ience of passengers or of the public did not require the running of its cars during the ordinance hours specified. Such facts were relevant to the issue and bore upon the question of the reasonableness of the ordinance in the defendant's case. Undoubtedly, the reasonableness of the ordinance was a question of law for the court to decide, upon a consideration of all the facts and circumstances of the case. That the evidence offered related to a period of time subsequent to the date when the ordinance went into effect, is not a ground for objection. Nor is the ques- tion controlled by considerations of the expense to defend- ant. It received its franchises and privileges for the pub- lic convenience and to be operated as the public interests should require. No provisions or condition of the law of its being, qualified its obligation to use its franchises, by permitting the operation of the railroad to be controlled solely by questions of profits. The objection should be upon the ground that the convenience of passengers does not require it. For the error committed in excluding evidence offered by the defendant to show that, with respect to the run- ning of its cars over the Avenue D branch, the regulation embodied in the ordinance was not a reasonable one, the judgments below should be reversed and a new trial ordered. (Ct. App. N. Y. Mayor v. Dry Dock R. R. 22 Chi. Leg. News 277. Power to extend Tracks — Interference by City — Injunc- tion — Charter Rights — Pennsylvania Constitution. From the bill, answer and affidavits produced at the hearing of the motion to dissolve the preliminary injunc- tion, it appeared that the Harrisburg City Passenger 124 STREET RAILWAY LAW. Company, complainant, was incorporated in 1861 by Act of Assembly, whereby it was empowered to lay out and construct one or more railways, extending to any point within the city, and for such purposes to occupy any of the streets of the city opened or to be opened. By city ordinance of 1867, it was pro- vided that any passenger railway desiring to lay tracks, or change or extend its routes, must first submit plans showing the streets to be occupied, the character of material and the kind of rails to be laid. By ordinance of 1890, complainant was authorized to equip its road for the use of electricity. On May 1, 1891, complainant leased its road to the East Harrisburg Passenger Railway Company, which latter company equipped the same with electrical appliances, and petitioned councils to pass an ordinance granting it permission to cross a certain bridge, for the purpose of connecting the tracks of the two companies. The ordin- ance was passed, but, owing to the addition of certain conditions, was not accepted by the East Harrisburg Company. In the meantime complainant had likewise petitioned for a similar ordinance, such petition being accompanied by plans, etc.; but action upon the same was indefinitely postponed by councils, who then adjourn- ed for six weeks. Complainant thereupon proceeded to to lay its tracks across the bridge without permission, employing the workmen of the East Harrisburg Com- pany for the purpose. The city attempted to stop the work by force, whereupon the complainant filed its bill for an injunction. The Court continued the injunction, after hearing, filing an opinion showing the facts above cited, and holding that the leasing of complainant's road to another company did not prevent it from making STREET RAILWAY LAW. 125 extensions; that the complainant was not subject to the Constitution of 1874, nor tne subsequent legislation, providing that the construction of street railways should be subject to consent of local authorities; that councils had no power to indirectly prevent the exercise of com- plainant's rights by declining to act on its petition ; that the city's police regulations must be reasonable, and that complainant could employ whom it pleased to do its work. He directed the entering of a bond of indemnity by complainant, to cover charges entailed upon the city by the railroad's occupation of the bridge. Per curiam : — This was an appeal from the decree of the court below, continuing a preliminary injunction. The decree is affirmed and the appeal dismissed at the cost of the appellants. (Sup. Ct. Pa. Harrisburg City Pass. Ry. Co. v. Harrisburg, 1 Adv. Rep. (Leg. Intel.) 656. Electric Railroads — Failure to have Headlights — Col- lision with Vehicles — Negligence — Driving on Tracks. In an action against an electric railroad it appeared that plaintiff and her husband, while driving along the track after dark, were struck and injured by a car; that there was no headlight on the car, nor any light either inside or out; and that it was running 15 or 20 miles an hour. Pre- vious to that time the cars had used headlights. The hus- band testified that when he went upon the track he looked for a car, but did not see any; and that, if the car had had a headlight he could have seen it 1 or 2 miles. The wife testified that she, too, looked for a car when they went upon the track, but that afterwards she did not look par- ticularly, as she thought they would see the headlight. The first warning she had of the car was the sight of the flame on the trolley, and the glitter of the car window. 126 STREET RAILWAY LAW. It was then too late to get out of the way. Held, that the plaintiff and her husband were not negligent in driv- ing upon the track, and that whether they used or dinary care to prevent the collision was a question for the jury. It is admissible, in such a case, to show that the public were in the habit of driving on the track, as bear- ing on the question of defendant's negligence in running a car without a headlight or other light. Sup. Ct. Mich. Rascher v. East Detroit & G. R. R. Co. 20 Wash. Law Rep. 298. Unlawful Ejection of Passenger — Assault by Company's Servants — Violation of Rule in Boarding Car. The defendant contends that because the plaintiff boarded the train in a manner forbidden by its rules, its servants were justified in inflicting upon him the injuries of which he complains. The rule violated did not interdict access to the car, but only access in a specified mode. The plaintiff had paid his fare ; he had a right to go by that train ; he was in a place appropriated to passengers; and at the time of the assault he was in no way misconducting himself. Although where he had a perfect right to be, the effort to eject him was made merely because of antecedent misconduct in reaching the place, for the privilege of occupying which he had paid his money. His presence on the train being rightful, no matter what the irregularity in getting there, his removal would necessarily have been wrongful. The defendant has no power of retribution, and is inca- pable of compelling conformity to its rules by the impo- sition of a penalty. N. Y. Ct. Com. Pis. Smith v. Manhattan R. Co. 7 N. Y. L.Jour. 313. STREET RAILWAY LAW. 127 Electric Railway crossing Private Bridge — Compensa- tion — Expense of changing Bridge for Use of Elec- tricity. The plaintiff, an electric railway company, desired to lay tracks for an electric road across the bridge of the defendant company, which was a private bridge, the owners of which had the right to collect tolls from per- sons passing over it. Held, that the plaintiff, by its charter and the General Passenger Railway Act of 1889, had the right of passage over the bridge subject to the payment of tolls by way of compensation, which is to be determined by the size of the cars, the number of per- sons to be carried, and their frequency. The expense of any change in the rails upon the bridge to suit the purposes of an electric road must be borne by the plaintiff. Pa. Ct. Com. Pis. Pittsburgh & West End Ry. Co. v. Point Bridge Co. 22 Pitts. Leg. Jour. 367. Master and Servant — Appliances — Electric Car — Injury to Conductor. A street railroad company operating its cars by elec- tricity is not guilty of negligence towards its conductor in not having adopted and provided on its cars a resistance coil for the purpose of making the starting of the car more gradual, at a time when such coils have not become known, approved, and recognized as a useful appliance for that purpose. Sup. Ct. Minn. Lorimer v. St. Paul City R. Co. 51 N. W. Rep. 125. 128 STREET RAILWAY LAW. Elevated Portion of Electric Railway. A statutory prohibition against an elevated railroad in a city street, except under special charter of the legislature, applies to a portion of an electric railroad elevated twenty feet above the surface of the street, although the elevation is only for the purpose of overcoming engineering difficulties and is necessary to permit an extension of the road to the center of the City. The question to be considered is whether the elevated structure which the ordinance authorizes the defendant to build between Chase and Lexington streets, is an elevated road within the meaning of section 186, which provides that "nothing in this article shall apply to or authorize the construction of any elevated railroad, or of any other railroad except a surface road ; and no elevated railroad shall be constructed in or through the city of Baltimore, or in or through any of the counties of the State, except under a special charter of the General Assembly." The proof shows that this structure is to be built with vertical pillars or columns, upon which are to rest longi- tudinal girders, with transverse girders or cross-beams, all to be built of iron or steel. It is to be elevated twenty feet above the surface of the street, and to extend from a point between Chase and Eager streets to a point between Saratoga and Lexington streets, to the very center of the city. It is to be built upon the same plan as the elevated roads in New York. Such a structure can not certainly be said to be a surface road, but must to all intents and purposes be considered an elevated road, within the meaning of the statute. But then, it is said, it is elevated above the surface of the street only for the purpose of overcoming certain engineering difficulties, and that the elevation begins only when certain obstruc- tions on the surface of the street necessarily require it, STREET RAILWAY LAW. 120 and that the descent to the surface is made as soon as these obstructions are overcome. To overcome these obstructions it is necessary to build an elevated road twenty feet high, a distance of three-quarters of a mile. Now, if the defendant's contention be sound, and these obstructions extended from North avenue to the City Hall, then the city authorities could authorize it to build an elevated road all the way; and if so, what becomes of the statutory prohibition which says that no elevated road shall be built in or through the city, except under a special charter granted by the General Assembly? Such a con- struction would be, it seems to us, against both the letter and the spirit of the statute. Then again, it is said that this elevated structure is but a fractional part of the defendant's road. This may be true, but the question is one to be determined by the nature and character of the structure itself. However necessary this elevated structure may be to the down- town extension of defendant's road, and whatever advan- tages are thereby to accrue to the public, as affording a more convenient and rapid transit from one part of the city to the other, these are matters for the consideration of the Legislature, which alone has the power to author- ize the construction of an elevated road in or through the city. The invalidity of the ordinance in this respect, however, does not invalidate the entire ordinance. Other sections deal with matters in no manner connected with the construction of this elevated road. The first section grants to the defendant the right to lay tracks of its own on North avenue, and this right is in no manner impaired by the invalidity of the fifth section, purporting to authorize the construction of the elevated road. (Md. Ct. Appeals, Koch vs. North Ave. Co. 15 L. R. A- 357-) 130 STREET RAILWAY LAW. Power of Railroad to Cross Streets — Regulations by Municipality — Interference with Corporate Franchise — Unreasonable Ordinance. The grant to a railroad company by its charter of power to lay out and construct a railroad between desig- nated termini carries with it, as an incident of the grant, power to cross streets and highways within the location of its road, without any special grant to that effect. A municipal corporation within the limits of which a railroad company has located its road under legislative authority, may, under the power to regulate the use of streets, pass ordinances regulating the use of streets by railroad companies constructing and operating railroads within the city under legislative franchises, provided such regulations do not unreasonably interfere with the exer- cise of franchises conferred by the Legislature. A city ordinance which prohibits digging up the surface of any street except by permission of the board of alder- men first had and obtained, as applied to a railroad com- pany laying its track across a street within its located right of way, is not a reasonable regulation of the com- pany's exercise of its corporate franchises. Such an ordinance in effect declares that a right conferred by the Legislature shall not be exercised except by consent of the city government, and in that respect the ordinance is illegal and void. (Sup. Ct. N. J., Allen vs. Mayor, etc., of Jersey City. 49 Am. & Eng. R. Cas. 289.) Street Railways — Transfer Checks — Unlawful Ejection of Passenger from Car — Punitive Damages. By the ordinances of the city of St. Paul granting certain franchises to the defendant, a passenger who STREET RAILWAY LAW. l3l has paid one fare on any line operated by the company in the city is entitled to a transfer check or ticket entitling him to a continuous passage over any connection or crossing line. Where such passenger applies for and accepts a transfer check for one of several continuous or crossing lines, plainly marked and designated, he will be limited to the line so selected; but where the route desig- nated is not so limited, but is equally applicable to several lines, he will be entitled to be transported over either. Where a passenger is ejected by a conductor acting in good faith in pursuance of the rules of the company, and upon due notice to him, and with the exercise of no more force than is reasonably necessary, the damages to be allowed, if a recovery is had, are compensatory only. (Sup. Ct. Minn., Pine vs. St. Paul City Ry. Co. Not * yet reported. Pennsylvania Statute Authorizing Appointment of Rail- road Police — Street Railroad. The Act of February 27, 1865, vests large and import- ant powers in the Executive in authorizing him to appoint and commission an unlimited number of persons who, when appointed, shall have the powers of policemen of the city of Philadelphia, in all of the counties of the State through which the lines of the corporations appointing them may run, who shall be paid by private corporations, and shall be under their control and direction. I am of the opinion that an Act of this character shouid be strictly, and not liberally construed. At the time of its enactment, street and passenger railways were in opera- tion only in cities and other municipalities, wherein the local police were adequate for the protection of property and the preservation of order; and the reasons which 132 ' --STREET RAILWAY LAW. then existed for the Act under consideration, certainly did not apply to such corporations. If since then, the appli- cation of electricity as a motive power, and the organiza- tion of companies to use it for longer distances, and in more sparsely settled regions, have created a necessity for an extension of the provisions of this Act, I am of the opinion that such extension should be made by legis- lative amendment to the Act, and not by executive con- struction. (Opinion of Attorney-General of Pennsylvania. Peti- tion of Allentown & Bethlehem Rapid Transit Co., 49 Leg. Intel. 349. Personal Injury — Sudden Starting of Car while Passen- ger is Alighting — Reasonable Time to Alight — Con- tributory Negligence. Passengers on a street car have the right to assume that the car will not be started after it has stopped to let off passengers, without the driver's first using reasonable care and diligence to ascertain whether any passenger is in the act of alighting, and also that the car will not be started in a sudden and violent manner. A street railway company is not excused from liability to a passenger for injuries from the sudden starting of the car while he was alighting therefrom, by the fact that it was the ordinary and usual way of the driver's con- ducting his business, to start his horses suddenly and violently with a whip. A passenger on a street car is not guilty of negligence contributing to injuries from the sudden starting of the car while getting off, in failing to alight at once upon the car stopping, or in waiting to give precedence to a lady or others more infirm than himself. STREET RAILWAY LAW. 133 (Sup. Ct. Mich. Britton vs. Grand Rapids St. R. Co., 51 N. W. Rep. 276. Street Railways — Ordinance Granting Franchises — Res- ervation by City of Right to Permit Another Company to Use Tracks of First Company — Use of Electricity — Crossing Public Bridge. An unqualified power reserved to the city in an ordi- nance naming the streets upon which a horse railway may lay its tracks, under its charter making its rights subject to the determination of the City Council, to grant the right to another company to use the former company's tracks, authorizes it to grant the privilege of using elec- tricity for a motive power, with such reasonable powers and incidents as are necessary to make it effectual, although the necessary changes may cause some incon- venience and loss to the horse car company, where ample provision is made for compensation. A provision in a city ordinance granting a street rail- way company the privilege of laying its tracks on a public city bridge, that it shall not be construed as granting the company the right to lay any additional tracks on the bridge, is for the benefit of the public, and secures to such company no monopoly of the right of way; and it can not enjoin the use by another company, under a license from the city, of that bridge, either before or after the re-construction, or of a temporary bridge erected for public use during such re-construction. Md. North Baltimore Pass. R. Co. vs. Baltimore, 23 Atl. Rep. 470. [Note. — In the case ef St. Louis R. Co. vs. Southern R. Co. (Sup, Ct. Mo.), 1 Street Railway Review 319, after plaintiff had established its road, the Legislature granted the City a new Charter, which provided that any street railroad company should have the right to run its car6 134 STREET RAILWAY LAW. Land Occupied by Railroad — County Authorities Declar- ing to be Highway — Conditions not Fulfilled— Electric Street Railway. Where the County Court declares a road to be open as soon as certain fences are set and other conditions com- plied with, and the proposed road is left with railroad tracks, fences and embankments crossing it for eleven years thereafter, and there is no proof that any of the said conditions were ever fulfilled, the County authorities have no right to grant a street railway company per- mission to lay its tracks along said road without the con- sent of the railroad company, and the laying of such track may be enjoined at suit of the railroad company. U. S. Cir. Ct. E. D. Tenn. Cincinnati South R. Co. v. Chattanooga Electric St. Ry. Co., 44 Fed. Rep. 470. Street Railway — Collision — Patrol Wagon on Track — Negligence of Car Driver. In an action for personal injury sustained in a collision between plantiff's wagon and defendant's street car, it appeared that plaintiff was a police officer in charge of a patrol wagon carrying an injured man on a stretcher, and while on the defendant's track, his wagon was struck by a car coming from the opposite direction. Plaintiff's driver gave evidence, which was corroborated, that he saw the car and tried to pull off of the track, doing so slowly on account of the injured man; that when about over the tracks of any other street railroad company upon pavment of just compensation. Plaintiff accepted from the city additional franchises, and agreed to conform to present or future ordinances enforcing the Charter. It was held that plaintiff thereby conceded the right of other companies to use its tracks, and became subject to any ordinance subsequently passed providing the mode of ascertaining the compen- sation. — Ed.] STREET RAILWAY LAW. 1 35 sixty feet from the car, he hallooed as loud as he could to stop the car; that the driver was looking behind his car and did not attempt to slacken the speed before the col- lision. Held, that defendant's motion for a non-suit was properly denied, as driving a wagon on a street car track is not negligence -per se, and the evidence was sufficient to show the car driver negligent in not looking ahead to observe whether the track was clear. Sup. Ct. Cal. Swain v. Fourteenth St. Ry. Co., 28 Pac. Rep. 829. 136 STREET RAILWAY LAW. Injury by sudden Starting of Car. The conductor of a street-car must see that a passenger entering the car is in a place of safety before he gives the signal to proceed, and the passenger is entitled to damages if he is thrown down and injured by the premature starting of the car. Maynard, J., delivered the opinion of the Court: There was sufficient evidence to go to the jury upon the issue of the defendant's negligence. The jury could properly give credence to the testimony of the witness Kerkow, who was in a better position to know just how the accident occurred than any other person examined upon the trial. If she was to be believed, the conductor signaled to the driver to go ahead before she had reached a place of safety upon the car, with the plain- tiff's five-year-old child, and the car immediately started with a jerk, which threw her upon the seat, and the child into the street, and under the car, where his right leg was so crushed that amputation of a portion thereof was necessary. The car was an open summer one, with seats running crosswise, and a place between the seats at the sides for the passengers to enter by means of steps running the entire length. If the car started as the plaintiff's child and its attendant reached the topmost step, there would be danger that the sudden motion imparted to it, while they were in that position, would throw one or both of them to the ground, or oth- erwise cause them injury, and the defendant owed them a duty in this respect which the jury may have found was disregarded by their agents and servants, who then had charge and control of the car and its movements. Earl, Ch. J., dissenting: Miss Kerkow was the sole witness on the part of the plaintiff to prove the circumstances and occasion of the STREET RAILWAY LAW. 1 37 accident. Her testimony is clear that she was in the car with George before it was started. She does not state what occasioned the jerk or how violent it was. There is no evidence that the horses were mismanaged, or that the driver was careless in starting them, or that he started them with more energy than was necessary at the time and place. It is difficult to believe that the horses could start a heavy car with a severe jerk. It is true that she fell down in her seat and that George fell out of the car; but we do not think that that circumstance furnished evi- dence, of itself, of culpable want of care on the part of the driver of the car. When a car is stopped long enough to permit a person desirous of becoming a passenger to safely enter it, he is then in a safe place, and must take some care of himself so that he will not be thrown down by any ordinary management of the car. Upon this evi- dence, as it now appears, we are unable to say that there was any negligence which can cast the pecuniary conse- quences of this most unfortunate accident upon the defendant. (N, Y. Ct. App. Akersloot v. Second Ave. R. Co., 15 L. R. A. 459.) Note. — It is the duty of the driver of a horse car, when signaled to stop, to ascertain what passengers intend to alight at that place, to wait a sufficient time to enable them to alight in safety, and to see and know that no passenger is in the act of alighting or is otherwise in a position which would be rendered perilous by starting the car. Sup. Ct. Ala. Birmingham U. R. Co. v. Smith, 8 So. Rep. 86; 1 Street Railway Review, 50. The fact that a passenger is evidently very young, is a circumstance that m ust be taken into consideration by the carrier, in the discharge of its duty to stop the car a sufficient length of time to give the passenger reasonable opportunity to alight in safety. Sup. Ct. Mo. Ridenhour v. Kansas City R. Co., 14 S. W. Rep. 760; 1 Street Railway Reyiew 180. I38 STREET RAILWAY LAW. A street railway company it not excused from liability to a passenger for injuries from the sudden starting of the car, while he is alighting therefrom, by the fact that it was the ordinary and usual way of the driver's conducting his business, to start his horses suddenly and vio- lently with a whip. Sup. Ct. Mich. Britton v. Grand Rapids St. R. Co., 51 N. W. Rep. 276; 1 Street Railway Review, 359. — Ed.] Street Railways — Charter Powers — Trolley Wires — Injunction. A street railway will be enjoined, at the suit of property owners along the line of the road, from the erection of the trolley system of motive power, where its charter authorizes a single or double track, to be used exclusively with horse power, or where the company had constructed a city passenger railway under a supplement to its charter obtained by an Act of Assembly, which authorized only the motive power incident to passenger railways, which, as then understood, included only horse power. Where the consent of councils necessary for the erec- tion of the trolley system is given expressly to a passen- ger railway company, and where such consent is impera- tive by reason of the terms of its charter, such consent cannot enure to the benefit of a traction motor company operating the line without further ordinances for that purpose. Whether the electric trolley system is dangerous or safe, or whether it is wise or unwise to permit its erection in a populous part of the city, is a question with which the courts have nothing to do, because, under existing laws, this is a matter which pertains to the city councils and municipal executive officers. Dist. Ct. Pa. Watkin v. West Philadelphia Pass. R. Co., 49 Leg. Intel. 269. STREET RAILWAY LAW. 1 39 Corporation Law — Ultra Vires — Street Railways — Trolley Motor. A street railway company, formed under the Act of May 14, 1889, which authorizes the formation of com- panies for constructing, maintaining and operating street railways, for the conveyance of passengers by any power other than locomotive, whose articles of association expressly provide that " said railway is to be operated by horse power," cannot, even with consent of councils, operate its road by the electric trolley system. Dist. Ct, Pa. Haines v. 22nd st. & Allegheny Ave. Pass. R. Co., 49 Leg. Intel. 286. Statute requiring Street Railways to keep Streets in Repair — Lessee of Corporation formed under other Law. A provision in a street surface railway act, that com- panies incorporated thereunder shall keep the portion of the street between and for a stated distance outside of the rails in permanent repair, and that upon their failure to do so it may be done by the State at their expense, does not apply to a company chartered thereunder, which is operating a street railway line as the lessee of another company chartered under a general railway law imposing no such obligation, even though the lessee may have relaid tracks in streets in different positions, or laid down an additional track. Sup. Ct. N. Y. Gilmore v. Utica, 29 N. E. Rep. 841 Street Car approaching' Excavation — Driver proceeding on Signal from Foreman — Injury to Workmen. It is not negligence for the driver of a horse car, who brought his horses to a stop on approaching an excava- 1^0 STREET RAILWAY LAW. tion, on the edge of which a section of sewer pipe had been placed so close to the rail that the car in passing struck it, to proceed on a signal from the foreman in charge of the work; and the horse car company is not liable for an injury to a workman near the track who was struck by a piece of sewer pipe which was toppled over by the car. Sup. Ct. N. Y. Schmidt v. Steinway & H. P. R Co., 43 N. Y. S. Rep, 683. Municipal Regulation of Streets — Pavements — Com- pelling Street Railway to relay Tracks. A street railway which has laid its track in the streets of a city, authorized by statute to prescribe rules and regulations in regard to street railways requisite for grading, repairing and paving the street, under an ordi- nance reserving the right to make such regulations, and providing that in case of grading, paving, or otherwise, if it shall be necessary to relay the track, it must be done at the expense of the company, must conform the con- struction of its track to a regulation requiring projecting ties to be cut off, to prevent vibration injuring a pavement to be constructed, although such requirement necessitates the entire reconstruction of its track in a manner adopted by another road in the same city. Sup. Ct. Mich. Detroit v. Ft. Wayne & E. R. Co. 51 N. W. Rep. 688. Location of Power House — "Adjacent" Streets — Con- struction of Charter. The Charter of the Brooklyn Heights Railroad Com- pany authorized it to construct a cable road from Court Street, through Montague Street, to Wall Street ferry, and to erect necessary power and car houses in streets, STREET RAILWAY LAW. I4I "adjacent to Montague street west of the hill" in locations to be approved by the Commissioner of City Works. The conformation of the ground was such that the grant was valueless, unless the Company should be permitted to erect its power houses in one of the streets, parallel to and in the vicinity of Mon- tague street. Held there being no streets touching Montague street West of the crest of the hill, that the word "adjacent" so used must be construed to mean neighboring streets. In such case, the Commissioner of City Works having approved the location of the power house in a neighbor- ing parallel street, and the Common Council having authorized its erection in such locality as should be approved by him, a subsequent ordinance of the Council could not operate to withdraw such consent, and render another one necessary. City Court of Brooklyn. Brooklyn Heights R. Co. v. City of Brooklyn. 18 N. Y. Supp. 876. Bridge Companies — Powers of Directors — Free Passes — Use of Bridge by Street Railway. The provision of the Constitution prohibiting railroads, from granting free passes does not apply to bridge com- panies, and the board of directors may grant such num- ber of free passes as in their sound discretion will enure to the best interests of the stockholders of the bridge. While the proviso of the Act under which the bridge company is incorporated, providing that said bridge shall not be used for railroad purposes except street passenger railways, does not create an express grant of power, it seems to recognize the power to contract for the use of the bridge by a street railway as an incident, which 142 STREET RAILWAY LAW. might be necessary for the accommodation of the public as well as the benefit of the corporation; but such use should not interfere with the use of the bridge by the public. Dist. Ct. Pa., Hasson v. Venango Bridge Co., 49 Leg. Intel. 294. Use of Streets — Consent of Turnpike Company — Bor- ough Authorities. Consent of a turnpike company does not give a street railway company the right to construct its railway upon the bed, of a turnpike road, which is also a street, within borough limits, without the consent of the borough authorities. Pa. Ct. Com. Pis. Steelton v. East Harrisburg Pass. R. Co. 20 Wash. L. Rep. 447. STREET RAILWAY LAW. 1 43 Ordinance Requiring Both Driver and Conductor on Street Car. An ordinance requiring both a driver and a conductor to accompany every street car, is a proper exercise of the police power. Sending a street car back to the stables for failure to comply with such ordinance, is not an infliction of punishment without a trial, but merely removes a nuisance from the street, and the ordinance may properly provide for such return. The Board of Councilmen passed this ordinance : "That all street cars running in the city of Newport shall have two persons — a driver and a conductor — on each car; and every failure to have said driver and conductor on each car shall subject the president and each of the officers of the company to a fine of not less than twenty-five dol- lars nor more than one hundred dollars for each and every day; and the police of said city shall cause any car with- out driver and conductor to be returned to the stable. The appellees, the mayor and chief of police of the city, being about to enforce the ordinance by having the com- pany's officers arrested, and its cars returned to the stable, this action was brought enjoining it. If the ordinance was invalid, then, to prevent a multi- plicity of prosecutions, and such consequences as would necessarily result from its enforcement, the company had a right to ask preventive equitable relief. The city charter provides: "They (Board of Council- men) shall have power to pass all ordinances and by-laws, not in conflict with this charter or the constitution of this state, that may be necessary for the due and effectual administration of right and justice in said city, and for the better government thereof." It also provides: "They shall have power to cause the removal or abatement of any nuisance." Clearly no power is attempted to be expressly given in the charter to regulate the number of 144 STREET RAILWAY LAW. employes on the street railway cars, or how they shall be operated; but if the requiring of both a driver and a conductor be the exercise of the police power, then the the provision of the charter above cited authorized the enactment of this ordinance. If it be not police regula- tion but a mere attempt to enter into and regulate the company's business, then it cannot be sustained. These cars pass through crowded thoroughfares and centers of crowded population. Persons are constantly getting on and off the cars. The cars are apt to be crowded, at least in the morning and evening, when people go to and return from business. If it be said that they have heretofore been operated without both a driver and con- ductor, it can also be said that the cities have grown, and the travel has doubtless increased. It is said, however that now power existed to direct the return of a car not having both a driver and a conductor to the stable; that this is an enforcement of an ordinance without a trial, and the infliction of punishment before the party has been found guilty by judicial process. It is, in no sense, however, a forfeiture of the property, but merely authorizes an effective exercise of the police power. If, for instance, a car were found without both a driver and conductor, it is to be merely stopped and re- main upon the street, blockading travel, and constituting a nuisance, Suppose a municipality, in the exercise of the police power, were to forbid the driving of elephants or other wild animals along the streets, and some were found upon them, would it not have the power to direct their removal? The ordinance in question merely pro- tects the public from the danger existing from running the cars without proper control and without sufficient force ; and, if it be attempted, provides for their removal, to prevent their becoming a nuisance. STREET RAILWAY LAW. 1 45 Court of Appeals, Kentucky, South Covington & Cin- cinnati Street Railway Company v. Berry, 15 L. R. A. 604. Street Railways— Bridges — Dedication — Reasonable Toll. The bridge was opened to the public on the first of January 1867. Rates of toll were fixed by the president and directors, and that of a vehicle drawn by two horses at twenty cents. When this act of incorporation was obtained, and at the time the bridge was built, there were no street railways in the city of Covington, but the bridge company, seeing the necessity for a more convenient and rapid transit from one city to the other than by the ferry boat, and contemplating the existence of street railways in Covington, so constructed its bridge, by laying down iron rails upon it, as that street cars might pass over it, and in doing so necessarily increased its cost and added to the expense of keeping it in repair. It constructed approaches to its bridge for cars on each side of the river, and invited companies subsequently organized to use its bridge, charging the first company as much as two and a half cents for each passenger coming on the street cars, and finally reducing it to two cents. While it is evident that the street car company could not have compelled the bridge company to place rails on the bridge, still, when the appellant has seen proper to enlarge its franchise, and to make it a street railway bridge as well as one for ordi- nary travel, it has assumed a public duty with reference to street car companies, that requires it to permit street cars to pass over its bridge at reasonable rates of toll, and cannot at its pleasure destroy this means of travel by removing its rails or refusing to permit such cars to go upon its bridge. This bridge is a highway and dedicated by the company, not only to the uses of ordinary travel, I46 STREET RAILWAY LAW. but to its use by street railway companies in passing cars over it from the one city to the other. This company has permitted this use of its bridge for more than a quarter of a century; has induced from time to time large expenditures of money in building street railways, and inviting the travel upon its structure by all such corpora- tions. It is the only way of reaching the city of Cincin- nati by the use of street cars, and to stop this pnblic travel would not only destroy much of this capital invested in such enterprises, but would be disastrous to the public interests. A toll of two cents for each passenger crossing the bridge in a street car is not unreasonable or an unjust discrimination as compared with a charge of 20 cents for each two-horse vehicle. Court of Appeals, Ky. Covington & Cincinnati Bridge Co. vs. South Covington & Cincinnati St. R. Co., 15 L. R. A. 828. Muncipal Control of Streets. — Exclusive Privileges granted to Street Railways. A grant by the city of a right of way to a railway company, though extending to nearly all the streets of a city, is not void as conferring an exclusive privilege, the city not being precluded by its terms from extending like privileges to other railway companies. Sup. Ct. Tex. Houston v. Houston City St. R. Co., 19 S. W. Rep. 125. Street Cars — Reasonable Time to board — Passenger hav- ing Parcels in His Hands — Care required 0/ Driver. The servants of a street car company who control the movements of its cars, are bound to use due care in STREET RAILWAY LAW. 1 47 starting the same, so as to allow passengers a reasonable opportunity to get safely on board, regard being had to circumstances of each case. The train men were bound to allow plaintiff a reason- able time to get safely upon the car, and the plaintiff having packages in his hands, they were bound to con- duct themselves in starting the train in reference to that fact. These trains are not, of course, ordinarily expected to make long stops. But if anything is apparent in the condition of the passenger so that he would be likely to be thrown or injured by the motion of the car, then proper regard for his safety might require a train to be held in position to avoid it. Sup. Ct. Minn. Steeg vs St. Paul City Ry. Co., 20 Wash. L. Rep. 541 Contract for building Sewers — Interfering with Street Railway Tracks — Injunction. In this contract between the city and the defendant Massey, there are specifications made a part of the con- tract, and according to the 25th paragraph thereof the city seeks to protect the street railway's tracks, gas and water pipes. Of course it must be assumed that the contractor made his contract and fixed his price having these specifications in view, and he is to bepaid for pro- tecting these structures just the same as he is to be paid for doing his work. In view of the fact that there is a purpose, and has been a purpose, to interfere with the traffic of the road by this system of shoring, which can be avoided, as it appears to this Court, and when by a very small expense this could be averted, I think the defendant (the con- tractor) ought to be required to do that work in a manner so as not to interfere with the plaintiff's traffic, I48 STREET RAILWAY LAW. Superior Court, Spokane Co., Wash. Spokane Cable Ry. Co. vs. City of Spokane. Not yet reported. Electric Railways — -Overhead Wires — Telephone Com- panies. An electric passenger railway is bound to use reason- able care and prudence in placing its wires and poles, and to adopt all ordinary and usual appliances and methods to prevent contract between its trolley and feed wires and the wires of the telephone company stretched along or across the same highway; failing to exercise this degree of care, it may be restrained by injunction from operating its line until the defect is remedied. It is the duty of a telephone company using a public highway for its poles and wires to so construct and main- tain its line as not to incommode the public use of the highway for purposes of travel or transportation, whether by ordinary vehicles, horse railways or electric railways lawfully used on the same. In this case if the dangers from contact of wires are due to the negligent manner in which the telephone line was constructed, the telephone company is not entitled to be indemnified for the cost of making the necessary changes. Ct. Com. Pis., Luzerne Co., Penna. Central Pa. Telephone Co. vs. Wilkes Barre & West Side R. Co., 49 Leg. Intel. 335. Crossing' Street Car Track — Rule as to Care required—^ Failure to look and listen. The plaintiff was driving a one-horse market wagon and in attempting to cross the defendant company's road his wagon was struck by a moving car, causing the injury for which this suit was brought. He was driving STREET RAILWAY LAW. 1 49 down the street in the same direction as the car, and when about fifty or sixty feet from the track, according to his testimony, he looked out, but did not see a car coming. He then drove his horse, to use his own expres- sion "cati-corned" across the track, and without looking out again before he crossed it. When seen by a motor- man in charge of the car, his wagon was moving in the same direction, and the accident was evidently caused by pulling his horse directly across the track in front of the car. The rule to stop, look, and listen, is applicable in part, at least, to street railways. A person driving a vehicle has but to use his eyes to avoid such accidents. There is no danger, as in the case of steam roads, of stopping a horse at the very edge of the track. When, therefore, the citizen attempts to cross such track, it is his duty when he reaches it, to look in both directions for an approach- ing car. It very rarely, if ever, happens that the street is so obstructed that the car may not by seen as the citi- zen approaches the track. It is his duty to look at that point, and if there is any obstruction, to listen, and his neglect to do so is negligence fer se. This is an unbend- ing rule to be observed at all times and under all circum- stances. Sup. Ct. Penna. Ehrisman vs. East Harrisburg City Pass. R. Co. 150 Pa. Rep. 180, 150 STREET RAILWAY LAW. Injury resulting from Fright. If the negligence of a carrier place a passenger in such imminent peril as to cause fright, resulting in illness, the negligence is the proximate cause of the injury, for which an action may be sustained. Such passenger is entitled to recover to the full extent of the injury so caused, without regard to whether, owing to his previous condition of health, he is more or less liable to injury. From the complaint it appears that the plaintiff was a passenger on one of defendant's cars running upon its line on Jackson street, St. Paul; that when the car reached the intersection of that line with the defendant's cable- car line, running on East Seventh street, the persons in charge of it negligently attempted to cross, and did cross the cable line in front of a then near and rapidly approach- ing cable train thereon; that a collision seemed so immi- nent and was so nearly caused, that the incident and attending confusion of ringing alarm-bells and passengers rushing out of the car, caused to plaintiff sudden fright and reasonable fear of immediate death or great bodily injury, and that the shock thus caused threw her into violent convulsions, and subsequent illness. The com- plaint shows a duty on the part of defendant to exercise the highest degree of care to carry the plaintiff safely. It also shows negligence in respect to that duty, and, if the negligence caused what the law regards as actionable injury, the action is well brought. Of course, negligence without injury gives no right of action. On the argu- ment there was much discussion of the question whether fright and mental distress alone constitute such injury that the law will allow a recovery for it. This question is not involved in the case. Here is a physical injury as serious, certainly, as the breaking of an arm or leg. If the fright was the natural consequence of the circum- stances of peril and alarm, in which defendant's negligence STREET RAILWAY LAW. 151 placed plaintiff, and the fright caused the nervous shock and convulsions and subsequent illness, the negligence was the proximate cause of those injuries. That a men- tal condition or operation on the part of the one injured comes between the negligence and injury does not necessarily break the required sequence of intermediate causes. If a passenger be placed, by the carrier's negli- gence, in apparent imminent peril, and, obeying the natural instinct of self-preservation, endeavor to escape it by leaping from the car or coach, and in doing so is injured, he may, if there be no contributory negligence on his part, recover for the injury, although, had he remained in the car or coach, he would not have been injured. The endeavor to escape is not of itself con- tributory negligence. Wilson v. Northern Pac. R. Co., 26 Minn. 278. In such case, though there come, as an intermediate cause between the negligence and injury, a condition or operation of mind on the part of the injured passenger, the negligence is nevertheless the proximate cause of the injury. The defendant suggested that plaintiff's pregnancy rendered her more susceptible to groundless alarm, and accounts more naturally and fairly than defendant's negligence for the injurious consequences. Certainly a woman in her condition has as good a right to be carried as anyone, and is entitled to at least as high a degree of care on the part of the carrier. It may be that, where a passenger, without the knowledge of the driver, is sick, feeble, or disabled, the latter does not owe to him a higher degree of care than he owes to passengers generally, and that the carrier would not be liable to him for an injury caused by an act or omission not negligent as to an ordinary passenger. But when the act or omission is negligence as to any and all passengers, well 152 STREET RAILWAY REVIEW. or ill, anyone injured hy the negligence must be entitled to recover to the full extent of the injury so caused, with- out regard to whether, owing to his previous condition of health, he is more or less liable to injury. If the recovery of a passenger in feeble health were to be limited to what he would have been entitled to had he been sound, then, in case of a destruction by fire or wrecking of a railroad car through the negligence of those in charge of it, if all the passengers but one were able to leave it in time to escape injury, and that one could not, because sick or lame, he could not recover at all. The suggestion men- tioned would, if carried to its logical consequences, lead to such a conclusion. Sup. Ct. Minn. Purcell v. St. Paul City R. Co. 16 L. R. A. 203. Assaulted by Car Driver — Provocation — Suit by Pas- senger. This is an action to recover for personal injuries in- flicted upon the plaintiff by one of the defendant's em- ployes, who at the time was in charge of one of its cars as driver or conductor, and upon which car the plaintiff had taken a seat as a passenger, his fare having been paid by a fellow passenger. After the plaintiff had so taken a seat in defendant's car, and after his fare was so paid, the driver demanded of plaintiff that he personally pay a fare, over which demand some words were had between them, and the plaintiff threatened to report the driver's conduct to the superintendent of the railway. There- upon the driver made an assault upon the plaintiff, striking him with great force while plaintiff was so seated in the car, and at the, same time shoving plaintiff's head through the glass of one of the windows of the car. During the STREET RAILWAY LAW. 1 53 assault the plaintiff undertook to and did leave the car, and the driver followed him quite a distance from the car, pounding plaintiff with a club until he was stopped by some laborers near by. And he says that the assault so made upon him, and the injuries inflicted, caused him great pain of body and mind, and disgrace and humilation, for which he asks judgment and dam- ages. All the authorities agree that words of provocation alone will not justify an assault. Where, however, the provocation is recent, it may be shown in mitigation of damages. But even if the driver had been justified in removing the plaintiff from the car, he would not be pro- tected in using a greater degree of force than was appar- ently reasonably necessary, and if he did so, the company would be liable. In this case, the driver's own testimony shows his own conduct was brutal in the extreme, and is not justified by anything that appears in the record. There is no doubt of the liability of the company in a case of this kind. Sup. Ct. Neb. Hamen v. Omaha Horse Railway Com- pany, 7 N. Y. L. Jour. 1270. Independent Contractor - Negligence in making Exca- vation. A Company employing contractors to make excavations for a building, but whose engineer is to indicate the depth of the excavation, to have charge of the work, and to discharge men who disobey their orders, is liable for damage to adjoining property caused by the negligent manner in which the excavation is made. Sup. Ct. Mo. Larson v. Metropolitan Street R. Co. 19 S. W. Rep. 416. 154 STREET RAILWAY LAW. Street Railway — Renewal of Franchise — Notice and Consent of Property Owners. A statutory provision that cities may renew any fran- chise granted to a street railway company at its expira- tion, upon conditions considered conducive to the public interests, does not prevent such renewal before the expir- ation of the full time for which such franchise was granted, by agreement between the company and city. A city ordinance renewing, under Ohio Revised Statutes, Sees. 2,501 and 2,502, a grant of a franchise to maintain a street railway on other streets than those specified in the company's original franchise, is not invali- dated by the fact that notice was not given and the con- sent of the property owners was not obtained previous to its passage, as required by those sections previous to the granting of the original franchise. Cir. Ct. O. State vs. East Cleveland R. Co., 6 Ohio, C. C. Rep., 318. Compelling Street Railways to Use Same Track — City Cliarter — Different Motive Power. The City of New Orleans has power under its charter authorizing it to compel all railways in any one street to use one and the same track, to grant to a street railway company the right to run its cars over the tracks of another company, though such cars are of a different character and propelled by a different motor than the one in use. Sup. Ct. L., Canal & C. R. Co. vs Crescent City R. Co., 10 So. Rep. 888. Contributory Negligence — Deaf Person Crossing Track — Failure to Look. A driver of a horse car has the right to believe that a STREET RAILWAY LAW. 1 55 person about to cross the track is sound of hearing and will exercise her senses by stopping in time to let the car pass her freely. A person afflicted with deafness and wearing a sun- bonnet protruding so as to obstruct her sight, who attempts to cross a street railway track without .looking to the right or left, is guilty of contributory negligence, and can- not recover for injuries sustained by collision with an approaching car. Sup. Ct. La. Schulte vs New Orleans C & L. R. Co., 10S0., Rep. 8n. Rails Projecting Above Cross Walk — Injury to Pedes- trian. Where a street railway company allowed one of its rails to project above the surface of the cross walk so that a pedestrian stumbled against it, fell, and was injured, the jury are warranted in finding that the company was negligent. The fact that the evidence does not show that any com- plaint was ever made to the company of the condition of the track, does not relieve it from liability, though it may be considered by the jury in rendering a verdict, since many may have fallen by reason of the condition of the track without being injured, or if injured, without com- plaining or suing. N. Y. Ct. App. Schild vs Central Park, N. & E. R. Co., 31 N. E. Rep. 327. Appliances— Breaking- of Grip-shank — Cable Car Run- ning Away — Injury to Passenger. In an action against a cable railway for personal inju- ries, caused by the running away of the car on which plaintiff was a passenger, the result of the breakage of a 1$6 STREET RAILWAY LAW. grip-shank, plaintiff cannot complain that he was com- pelled to bear the burden of proof on the trial, when the court charged that "the burden of proof is upon the defendant to show to the reasonable satisfaction of the jury that it could not discover any insufficiency of the grip-shanks or rail-brakes by the exercise of the utmost skill and foresight." In such a case, the fact that the brakes proved insufficient to hold the cars when the grip- shank broke, raises a presumption that they were defec- tive in construction. It is the duty of a cable railway company, in supplying grips and brakes and keeping them in repair, to antici- pate all such weather and conditions as might reasonably be expected in such a climate. Sup. Ct. Mo., Sharp vs Kansas City Cable Ry. Co., 20 S. W. Rep. 721. Car Running at Unlawful Speed — Unsuitable Driver — Injury to Person Crossing Street. A street car company is liable for injuries to one who, while exercising reasonable care and caution in crossing a street, is struck by a car running at a speed prohibited by a city ordinance and in charge of an unsuitable driver. Sup. Ct. Mont., Wall vs Helena Street R. Co., 29 Pac. Rep. 721. STREET RAILWAY LAW. 1 57 Transfer Tickets. A. restriction that a street railway transfer ticket given without extra charge must be used within fifteen minutes after it is punched on the first line, is not unreasonable or invalid, in the absence of any contract or obligation to carry a passenger on both lines for a single fare with- out exceptions or conditions, or any provisions to that effect in the charter or ordinance. Morse, C. J., in delivering the opinion of the Court says: The proofs show that plaintiff had paid his fare as alleged, upon the Woodward Avenue car, and asked the conductor for a " change off" ticket to the Michigan Cen- tral depot. This ticket showed upon its face that it was "void unless used October 8, 1890, as indicated hereon." This indication marked by the pointing of an index finger of a hand, read as follows: "This slip will not be honored unless presented at the intersection of the Woodward Avenue line and the line punched in margin, within fif- teen minutes of time punched, for a continuous trip only. S. Hendrie, Treas." The plaintiff testifies that he got off the Woodward Avenue car at the corner of Wood- ward and Jefferson avenues,, and waited 14 minutes, and no car coming along or being in sight going towards the depot on Jefferson avenue, he then went to the post office, going there on Jefferson avenue and Griswold street; mailed some letters and came back, where he again waited eleven minutes before he got a car. On presenting his ticket the conductor told him it was not good. Plaintiff asked what was the matter of it, and the conductor replied, " read your ticket." Plaintiff said " I am not obliged to . read it." Conductor replied, "they are good only fifteen minutes after they are punched." Plaintiff then said, " I have been waiting a good deal longer than that for your car." The conductor then told him he must pay the 158 STREET RAILWAY LAW. fare or get off the car. Plaintiff refused to pay the fare and said that he would not get off the car unless he was put off. The conductor then put him off. The plaintiff did not resist, and was not injured physically. He had the money to pay the fare, but did not think he ought to pay it. He had used these tickets before, but had never read them, and did not read this one before he was ejected from the car. It will be seen that the proofs did not cor- respond with the allegations of the declaration, as plain- tiff was not given a ticket which entitled him to ride on this car except within a certain time; and from the dec- laration it would be inferred that there were no condi- tions attached to the ticket. But under the proofs, if the declaration had made proper averments to correspond therewith, we do not think the plaintiff was entitled to recover. The following section of the ordinance of the city of Detroit was put in evidence : " Sec. 30. The tracks upon Jefferson avenue, Woodward avenue, and Gratiot street, shall each be considered and run as one route, and subject its passengers to the payment of a sin- gle fare each; provided, however, that all cars running north of Jefferson avenue shall run to and from Jefferson avenue and the routes intersecting Woodward avenue shall be considered as making a portion of each of said routes respectively." The defendant company was under no obligation by contract or ordinance to take the plain- tiff upon the Jefferson avenue line from off the Wood- ward avenue line, to the Michigan Central depot, for the single fare of five cents, except upon the conditions printed on the face of the ticket; nor is there anything unreasonable in the requirement that the ticket must be used within fifteen minutes. The company had the right, under the ordinances of the city, to treat the Jefferson STREET RAILWAY LAW. 1 59 Avenue line as a single road, and to charge five cents fare; but it saw fit to make a continuous fare of five cents from any point on the Woodward Avenue line to the Michigan Central depot, if the transfer was made in fifteen minutes from one line to the other. In this case half an hour at least had elapsed. If no car had passed within that time, and the car from which the plaintiff was ejected was the first one to pass after the plaintiff had alighted from the Woodward Avenue car, the plaintiff may, upon a proper declaration, have an action against defendant, but no such state of facts was averred in the declaration in this case. It was the duty of the plaintiff to read the ticket. His failure to read it cannot give him any rights against the defendant which he would not have had, had he read it. And it was also the duty of the conductor not to receive this ticket and to require the payment of five cents fare, and neither he nor the company could be made liable for putting the plaintiff off the car in the manner in which he was ejected without physical hurt or damage. Sup. Ct. Mich. Heffron vs. Detroit City R. Co., 16 L. R. A. 345. Note : See also the case of Pine vs. St. Paul City. R. Co., decided by the Supreme Court of Minnesota, and cited in Volume II Street Railway Review page 358, in which it is held that by the ordinance of the city of St. Paul granting certain franchises to the defendant, a pas- senger who has paid one fare on any line operated by the company in the city is entitled to a transfer check or ticket entitling him to a continuous passage over any connecting or crossing line. Where such passenger applies for and accepts a transfer ticket for one of several con- tinuous or crossing lines plainly marked and designated, he will be lim- ited to the line so selected ; but where the ticket designated is not so" limited, but is equally applicable to several lines, he will be entitled to be transported over either. — Ed. l6o STREET RAILWAY LAW. Persons Alighting From Moving Car — When Relation of Passenger Ceases — Injury by Passing Car — Negli- gence. The plaintiff's intestate was instantly killed on Warren street by an electric car which, it was testified, was run- ning at a speed of fifteen miles an hour. His death under the circumstances gave the plaintiff a right to maintain the action under Stat. 1886, Chap. 140, ^if when killed he was a passenger, or if, not being a passenger, he was in the exercise of due diligence. He had ridden as a passenger upon another car which he had left immediately before he was killed. When struck, he was walking across Warren street, having taken one or two steps from where he had touched the ground on leaving his car, and was between the rails of the track on which was the car by which he was struck. He had not reached or had time to reach the sidewalk of Warren street, but he had left the car on which he had been a passenger and had begun his progress on foot across the street. We are of the opinion that he was not a passenger when the accident occurred, and that he ceased to be a passenger when he alighted upon the street from his car. The street is in no sense a passenger station for the safety of which a street railway company is responsible. When a passenger steps from a car upon the street he becomes a traveler upon the highway and terminates his relations and rights as a passenger and the railroad company is not responsible to him as a carrier, for the condition of the street or for his safe passage from the car to the sidewalk. When he rose from his seat and started to get off, two men, one the conductor and the other a fellow passenger, who were standing on the platform immediately behind him, shouted to him to stop, but he STREET RAILWAY LAW. l6l did not appear to hear, and stepped right off on the street to go across and was on the other track, having taken the first, step and being in the act of finishing the second, when he was struck. The plaintiff therefore cannot recover unless he shows by affirmative evidence that the deceased was in the exercise of due diligence to avoid injury in traveling upon the street. As there was no such evidence, a verdict for the defendant was rightly ordered. Sup. Jud. Ct. Mass. Creamer vs. West End Street R. Co., 16 L. R. A. 490. Damages by Elevated Railroad — Contiguous Property — Diminished Rental Value. The trial Court refused to find that the plaintiff, dur- ing the time in question, occupied and used his building as a dealer in flour and for its storage and manipulation. The evidence required that finding if it was material to the question of damages. There was evidence tending to show a substantial impairment of rental value of the plaintiff's premises caused by the acts of the defendants, but there was none tending to show any special injury to the plaintiff's flour business. The defendants' position in effect is: We did, it is true, impair the actual or marketable value of the plaintiff's premises for six years, but he can recover nothing because he did not offer his premises for rent, but used them himself in his own busi- ness, and has not proved, in respect of that business, that our acts occasioned him any loss or damage. We do not think the defendants' position tenable. The past damages which the plaintiff was entitled to recover, were measurable by the amount which the rental or usable value of the plaintiff's premises had been diminished by 1 6*2 STREET RAILWAY LAW. the construction, maintenance, and operation of the de- fendants' railway. He could take his choice between the rental or usable value as the premises actually were, whichever was most profitable to him. The defend- ants in the present case seem to think that for the pur- pose of diminishing the damages they can take their choice between the actual rental and usable value of the premises as they were actually used. The case affords no warrant for such a position. The defendants were wrongdoers and must pay full compensation for the wrong done by them. Ct. Appls. N. Y. Woolsey vs. N. Y. Elevated Ry. Co., 8N. Y. L.Jour. 161. Street Railway Mortgage — Foreclosure — Receiver — Bonds Invalid — Sale of Property to Pay Expenses In- curred by Receiver — Property Intended to Be Used on Road. In a suit to foreclose a mortgage given by a street rail- road company to secure payment of certain bonds, it appeared that the bonds were invalid ; but, all the prop- erty covered by the mortgage being in the possession of the receiver appointed pending the litigation, who had issued certificates for expenses incurred for the preserva- tion of the property, and it appearing that the defendant company was wholly insolvent, upon request and consent of all parties in interest a decree was entered, ascertaining the amount of the respective claims, and directing the sale of all the property involved to satisfy the same. Held, that rails, fish-plates, and bolts purchased by the company for use on its road, but which had not been actually used, and were stacked upon land not within the company's right of way, were within the terms of the mortgage STREET RAILWAY LAW. 1 63 and decree, both of which by their terms included all real and personal property "used or intended to be used in connection with or for the purpose of such railroad," and passed to the purchaser at such sale. ' U. S. Cir. Ct. S. D. Cal. Farmers' Loan & Trust Co. vs. San Diego Street Car Co., 49 Fed. Rep. 188. Obstruction on Track — Passenger Assisting in Moving Car From Track — Personal Injury — Contributory Negligence. Plaintiff, a passenger on defendants' up-town car, was requested by the conductor to get out and assist in get- ting the car off the track, so as to enable it to pass the obstruction. While he was on the street for that pur- pose, defendants' down-town car, for the purpose of passing the same obstruction, "jumped" the track to the east instead of to the west, thereby catching plaintiff be- tween the two cars. Held, that plaintiff being lawfully on the street at the time, was not guilty of contributory negligence, and entitled to recover for the injuries so received. Superior Court New York City. Stasner vs. Second Ave. R. Co., 18 N. Y. Supp. 880. Action for Causing Death of Child — Negligence of Driver of Street Car — Instructions to fury. An action was brought by the parents for causing the death of their minor son, and the petition alleged negli- gence on the part of the driver of the car. Held, that it was error to refuse to instruct the jury that " if under all the evidence in this case you find that the driver of said car was driving the same at a rate of speed at which it could not have been readily and quickly stopped, should occasion require; that such speed was careless 164 STREET RAILWAY LAW. and dangerous, considering the number of persons and vehicles on said street; and you find that the injury was caused by said negligence, and that the plaintiffs are the father and mother of the child, your verdict must be for the plaintiffs. Sup. Ct. Mo. Humbird vs. Union St. R. Co., 19 S. W. Rep. 69. ■ STREET RAILWAY LAW. 165 Injury to Boy Trespassing on Street-Car. A 17-year-old boy of ordinary intelligence is guilty of inexcusable negli- gence in jumping on the platform of a moving car, seizing the driver's whip and whipping the mules; and there can be no recovery for his death, caused by his falling off the car, which the driver was unable to stop in time to prevent his being run over. Lewis, J. : This is an action by the administrator to recover damages for the death of his intestate, caused by alleged negligence of appellee's servant. It appears by the evidence introduced by the plaintiff, that decedent, then about 17 years of age, voluntarily and without per- mission got on the front platform of a street- car in motion, seized the driver's whip, and jumping on the ground, whipped a while one of the mules hitched to the car, and then getting again upon the platform passed to the opposite side, and after whipping the other mule for some time, got upon the car step, from which he fell, was run over by the car, and thereby killed. He was at the time in no sense either an employe or passenger on the car of appellee, but a trespasser on its property and inter- meddler with its business without, so far as the evidence shows, its knowledge or permission of the driver, but rather in spite of him. His fall from the car and conse- quent death was caused by his own recklessness and illegal conduct in jumping on and off the car, and causing the mules to go at such speed as to make it impossible for. the driver, after discovering his fall, to stop in time to prevent his being run over. We do not perceive any ground upon which an action against the company could have been based if the decedent had been an adult; for his death was the result, not merely of his own contribu- tory negligence, but wholly caused by his own illegal and inexcusable conduct. 1 66 STREET RAILWAY LAW. We think it fully appears that his death resulted from his reckless and mischievous disposition, and not to any extend from lack of intelligence or discretion. And in view of that fact the evidence that his father had previ- ously told the driver to keep him off the car, does not con- stitute any excuse for his conduct so as to create any liability on the part of the company; without its know- ledge or consent he went upon the car and needlessly and wrongfully beat the mules. Therefore the rule requiring a locomotive engineer and also a street-car driver to exercise vigilance in looking out for danger to passengers and persons on the railroad track, and to use reasonable diligence to prevent injury to a person after his peril is discovered, has no application in this case, because the decedent not only assumed the attitude of a trespasser, but illegally interfered with the movement of gence to know the danger he incurred, and discretion enough to guard against or avoid it. We think the evi- dence is too clear to admit of a doubt on the subject, for it does not appear he possessed less intelligence, experi- ence and judgment than boys of that age ordinarily have, the car, and thereby caused his own death. As the evi- dence does not conduce to show actionable negligence on the part of the company or its servant, the instruction to the jury to find for defendant was properly given. (Ct. of Appeals, Ky. Taylor's Admr. v. South Cov- ington & C. St. R. Co. 20 S. W. Rep. 275. Elevated Railroad— Failure to keej> Structure in Repair — Presumption of Negligence — Injury to Person by Falling of Bolt. The plaintiff was driving along Sixth Avenue in the city of New York, in a wagon, under the defendant's STREET RAILWAY LAW. 1 67 elevated railroad structure. When near 39th street, an iron plate or clip, with a part of a broken bolt, fell from the structure, striking him upon the shoulder, causing the injury for which this action was brought. It appears that the bolt was about fourteen inches long, that it passed through the guard rail of defendant's road, the stringer upon which it rested, and an iron plate or clip underneath, which was held in place by a nut upon the end of a bolt; that the bolt was broken about two inches from the nut. No question is made but that the defendant's elevated railroad was properly constructed. It is claimed, how- ever, that it was negligently suffered to get out of repair, and that because of such negligence the plaintiff suffered the injury complained of. It was the duty of the defendant to exercise ordinary care for the purpose of keeping its structure in proper repair so as to prevent injury to persons passing over or underneath it. The evidence showed that the bolt was broken, and that in consequence the iron plate or clip fell upon the plaintiff. The structure was consequently out of repair, and, under the circumstances, the presumption of negli- gence follows. Evidence of the track-walker that he was required to examine the track, and was, at the time of the accident, attending to his duties, does not overcome the presump- tion of negligence. It is claimed that the plaintiff neglected to produce upon the trial the broken bolt. His counsel said it was lost. He had established a frima facie case when he rested. The burden was then on the defendant. The upper portion of the broken bolt was left in the structure, 1 68 STREET RAILWAY LAW. in possession of the defendant company, which could have produced it had it so desired. (N. Y. Ct. App. Volmarr vs. Manhattan Ry. Co. 25 Chi. Leg. News 73). Injury to Passenger alighting -when Signal is given to start — Contributory Negligence. A street car passenger who, in attempting to alight, has reached a point where it would be difficult to turn back when the bell is rung to start, cannot be deemed, as matter of law, guilty of negligence in continuing her descent from the car, although it started the very instant she was acting. (Sup. Ct. Mich. Lacas v. Detroit City R. Co. 52 N. W. Rep. 745). Care required in crossing Street-Car Track — View obscured — Excessive Speed. The test applied to determine whether or not a party was negligent in crossing a steam railway track on the highway, is not the test of the degree of care required in crossing the track of a street-railway on a public street. A street-railway company is bound to exercise at least as much care to avoid collision with other vehicles as the owners of the latter are required to use. Evidence in an action against a street railway company for injuries justifies a verdict against the company, where it appears that at the time of the accident the car was running on a down grade in a populous part of a city, at from fifteen to twenty miles an hour ; that no signal was given of its approach until it was within forty or sixty feet of the crossing, and that buildings obstructed the view of one crossing the track till he was near the crossing. (Sup. Ct. Minn. Shea v. St. Paul City Ry. Co. 52 N. W. Rep. 902). STREET RAILWAY LAW. 1 69 Contributory Negligence — Failure to look along Track Personal Injury. One who is driving across the track of a cable street railroad in a wagon having a hood confining his view and fails to lean forward to look along the track, when by so doing he would have a clear view, while otherwise he can see but twenty-five or thirty feet on each side, is guilty of negligence fer se, which will defeat his recovery for injuries from being struck by a car. (Sup. Ct. Penn. Wheelahan v. Philadelphia Traction Co. 24 Alt. Rep. 688). City Ordinance — Speed of Cars. A limitation by City Ordinance of the rate of speed at which street-cars may be run, is not authority to run up to the limit regardless of existing circumstances and con- ditions. (111. App. Ct. Quincy Horse R. & C. Co. v. Gnuse. 38 111. App. 212). Rail Projecting Above Surf ace of Street — Person Thrown from Vehicle — Contributory Negligence. One driving in a dog-cart at a moderate pace, who turns to cross a street-railway track to avoid some vehi- cles, and is thrown out by the wheels striking the rails which improperly protrude above the level of the pave- ment, is not as matter of law guilty of contributory negli- gence. (Sup. Ct. Tex. Houston City St. R. Co. v. De Les- derr.ier. 19 S. W. Rep. 366). Defective Pavement between Tracks — Injury to Horse. The action was to recover for injuries to a horse, the result of a fall caused by stepping into a depression in the I 'JO STREET RAILWAY LAW. pavement between the rails of one of the tracks of defendant's road. At the bottom of the depression there was the grated opening of a lateral drain leading to a sewer, and the whole arrangement was for the purpose of receiving and carrying off the surface water from a low place in the street. It conclusively appears that the defect in the street complained of was not the result of the use of the street by defendant, nor of any act on its part, nor the omission of any duty which it owed the public. It was a defect, not of repair, but of construction, for which the city alone was responsible, and which it was not the duty nor the privilege of the defendant to remedy. The duty laid upon the defendant by the statute was "to have and keep" the space between and opposite its rails and tracks " in permanent repair." It had no authority to change the location or dimensions of the opening of the drain, nor the depth or slope of the sides of the depression connected with such opening, all of which had been determined upon by the proper authorities of the City, and constructed by the City itself in accordance with such determination. The defendant not only owed no duty to the public to improved the construction of the street determined upon and carried out by the City, but it had no authority to do so even for its own benefit; and the evidence in the case discloses the fact that the defendant and its predecessor in the franchise had always been subjected to considerable inconvenience by reason of the faulty construction in question, which they had no authority in themselves to remedy. (Supreme Ct. N. Y. Snell v. Rochester Ry. Co. 19 N. Y. Supp. 496). STREE? RAILWAY LAW. I?I Passenger Injured in Alighting from Car — Bequest that Car be Stopped at Certain Street — Duty of Conductor. The fact that a lady familiar with travel on a certain street-railroad, and who was injured by the too sudden starting of the car from which she was endeavoring to alight, had requested the conductor to let her off at a cer- tain place, does not require the conductor, in the exercise of due care, to give the lady express notice of the stop- page of the car at that place, nor require any other action on his part than a reasonable stop: although the making of the request might be considered with other circum- stances as bearing upon the questions of negligence and contributory negligence. (Sup. Jud. Ct. Mass. Robinson v. Northampton St. R. Co. 32 N. E. Rep. 1.) 172 STREET RAILWAY LAW. Defective Insulation of Wires of Electric Railway. An electric street railway company is liable for injuries to a passenger who receives an electric shock from the handles of the dash-board of the car, which had become charged as the result of defective insulation of the wires conducting the motive power. In the opinion the Court said : "The learned council for the defendant company made the point in his argument that the company had no notice or knowledge of the peril that a person, passing from one car to another in the manner that plaintiff attempted so to pass, might receive an electric shock. He argues therefrom that the com- pany is not liable in this action. We think the point is not well taken. The company was chargeable with notice that the electrical apparatus on its cars was in a defective condition, for it appears that it had the means of readily ascertaining whether any electricity was escap- ing from the machine and works in the body of the car, and knowledge must be imputed to the company that if it escaped the iron handles of the platform were liable to become charged therewith. The only other question argued in the case is, whether the evidence conclusively proves that the attempt of plaintiff to pass from one car to the other when the cars were in motion, in the manner he did, was negligence on his part which contributed directly to the injury of which he complains, or, stated in another form, was it error for the trial court to submit the question of contributory negligence to the jury? The testimony tends to prove that the company had no rule prohibiting passengers from stepping from the platform of one car to the platform of the other when the cars were in motion, and had never given any caution against the practice ; that before plaintiff was injured, passengers on those cars, among whom was the plaintiff, frequently did so without objection on the part of the company; and that STREET RAILWAY LAW. 1 73 the car conductors constantly passed from one car to another when the same were in motion, in the same manner. Moreover, while it may reasonably be claimed that there was some peril of being thrown from and under the cars, there_ was no apparent reason to apprehend, and the plaintiff did not apprehend, the presence of any peril that by so doing he would come in contact with a current of electricity. Under these circumstances we cannot say that contributory negligence on the part of the plaintiff was conclusively proved. Hence it was not error to sub- mit that question to the jury." (Sup. Ct. Wis. Burt v. Douglas County &c. Ry. Co. 8 N. Y. L. Jour. 488. Imputed Negligence — Injury to Person riding in Wagon Negligence of Driver of Wagon. If the plaintiff herself was free from negligence, and her injury was due to the concurrent negligence of the railroad company and the person with whom she was riding in a wagon, he not being her servant, and it not appearing that she was the owner of the horse or wagon, or that she had any agency or concern in procuring or driving the same, and nothing appearing which tends to show that she was aware of any incompetency in the driver, the company \% liable to her for all the damages consequent upon the injury, and can take no credit as to any part thereof on account of the contributory negli- gence of the driver of the wagon. (Sup. Ct. Ga. Metropolitan St. Ry. Co. v. Powell. 16 S. E. Rep. 118.) Riding on Platform of Electric Car — Contributory Negligence. In this case the plaintiff was riding on the front plat- 1 74 STREET RAILWAY LAW. form of an electric car, and was thrown to the ground in consequence of the car running off the track. The acci- dent was primarily due to a defective and worn-out switch. The case was tried in the Superior Court, and the question of negligence was left to the jury. In charg- ing the jury the Court said : "In one respect this case presents a novelty. The Court has decided that if a pas- senger voluntarily and unnecessarily rides on the platform of a steam car and there gets hurt, he cannot recover, because the very fact that he undertakes to ride on' the platform when the car is in motion instead of riding on a seat within the car, when he might do so, is held to be an act of carelessness on his part, which will prevent him from recovering damages for an injury sustained by him while so riding on the platform ; but the Court has also decided that it is not necessarily negligent for a passen- ger to ride on the platform of a horse-car in motion. "The reason for the distinction is this : the steam car is propelled or driven by a great force, the tremendous power of steam, and is or may be driven at a very high rate of speed, and the danger attending the employment of great power, great forces and moving at great speed, is greater than when the vehicle in which we are riding is drawn or propelled by horse power at a less speed, and therefore in this case the place in which the passenger rides is conclusive as to the want of care, and in the other it is a mere question of fact, to be decided by the jury in each case. It is the extraordinary force of the propelling' power of the steam car that is decisive. "The car in this case was not a horse car; it was pro- pelled by electricity. If electricity is a force that may drive the car at a speed equal to that of the steam car, then there would be attending the employment of this STREET RAILWAY LAW. 1 75 force the same dangers that might attend the employment of steam, and whether you drive your car by electricity at a high speed, or by steam at a high speed, would not make the difference between danger and safety; but it is the fact of the force, and the rapidity with which the car is driven." The jury found that the plaintiff was guilty of negli- gence, and returned a verdict for the defendant. The instructions of the Court below are held correct. (Sup. Jud. Ct. Mass. Beal v. Lowell & Gracut St. Ry. Co. ; not yet reported.) Persotial Injury by being struck by Grip Car — Negligence of Driver in failing to stop Car — Insufficient Evidence. In an action for damages caused by collision with a street grip-car, on the theory that defendant's grip-man could have stopped the car in time to avert the injury after he saw, or by the exercise of reasonable diligence could have seen, the perilous position of plaintiff. Where there is no evidence as to the space within which the car could have been stopped, nor as to the distance of plain- tiff from the car when his peril could first have been observed, it is error to submit the case to the jury. (App. Ct. Mo. Turfluh v. People's Ry. Co. 46 Mo. App. 636.) Boy riding on Car at invitation of Motor-man — Liability of Company for Injuries. Plaintiff, a boy eight years old, after opening a switch of an electric street railroad as a service to the motor- man, was in return invited and allowed by the motor-man to ride on the car, against the prohibition of the defendant company. In getting on the car, which was moving slowly, plaintill slipped, and the car passed over his legs. 176 STREET RAILWAY LAW. Held, that the motor-man went beyond the scope of his authority; that defendant owed no duty to plaintiff as a passenger, and that he was not entitled to recover for the injury. (Sup. Ct. N. Y. Finley v. Hudson Electric R. Co. 19 N. Y. Supp. 621.) (Note. — A contrary decision was rendered by the Supreme Court of Missouri in the case of Buck vs. People's St. R. Co., 18 S. W. Rep. 1090, in which it is stated that when a small boy becomes a free passenger on a street-car by consent of the driver in charge, the Company is bound to exercise towards him the same care as towards other passengers. — Ed.) Street-car Having intoxicated Driver — Evidence — Injury to Pedestrian. In an action against a street railroad for injuries sus- tained by being struck by a car, in consequence of the driver's negligence and intoxication, evidence that the driver had on that same trip missed a switch at a certain street, that he had failed to respond to the conductor's signal to stop at another street, had driven rapidly, and that a person had been thrown down in attempting to get aboard, is admissible as showing a series of acts indicative of such intoxication at the time of the accident as to incapacitate him for the proper control of the car. The fact that the driver had had drink just before starting on the trip, was admissible as bearing on his condition at the time of the accident. (Ct. Com. Pis. N. Y. Pyne v. Broadway & Seventh Av. R. Co. 19 N. Y. Supp. 217.) Improvement of Streets — Agreement by Street Railway Company — Contract let by City. Where a city caused to be awarded to contractors a contract to pave with gravel a street on which the tracks STREET RAILWAY LAW. 1 77 of a street railway company were located, and which under a contract previously made between the city and the street railway the company was bound to plank, and the company submits to the city a proposition to pay part of the cost of graveling the street in lieu of its planking contract, which proposition is acted upon. The city can- not maintain a suit to compel the company to plank the street, without having rescinded its action in awarding the subsequent contract to have the street graveled. (Sup. Ct. La. State v. St. Charles St. R. Co. 10 So. Rep. 927.) Powers of City Council — Granting Franchise to Lay Track in Narrow Street. The grant of a right to lay a street railway in a street where the driveway is so narrow that but 8 feet 7 y 2 inches will be left on each side of a street car for the passage of teams, is not beyond the power of a city council. (Sup. Ct. Mich. People v. Ft. Wayne & E. R. Co. 52 N. W. Rep. 1010.) Abutting Property Owner — Rights in Street — Damage by Street Railway — Sf ace for Market Wagons. The interest of an abutting owner in the continuance of a market in the street is not one of his incidental rights in the street which can be impaired by the construction therein of a street railway, causing the market wagons to remove elsewhere. A double track street railway is not an interference with the right of access of an abutting owner because there is not sufficient space between the rails and curb to permit teams to stand at right angles to the street. (Ct. Com. Pis. Ohio. Sells v. Columbus St. R. Co. 28 Ohio L. J. 172.) 178 STREET RAILWAY LAW. Passenger Standing on Car Step — Injury by Passing Car — Defective Condition of Tracks. A passenger upon a street car is not guilty of negli- gence contributing to his injury by being struck by another car going in an opposite direction, owing to the fact that the tracks were too near each other for safety, and that the inner rails were depressed so that the upper portion of the cars were tilted towards each other, in standing upon the outer rail or step, where that is the only apparently unoccupied place when the car stops to take him up, and he is ignorant of the condition of the tracks. (Sup. Ct. N. Y. Herdt v. Rochester City & B. R. Co. 20 N. Y. Supp. 346.) Ordinance Granting Franchise — Conditions — Payment of Percentage of Gross Earnings. A cable street railway company authorized by ordi- nance to operate a certain route within a city on condition of paying a percentage of its gross earnings from all sources, must pay such percentage upon the earnings from an extension of its line in an adjoining village, where such extension is operated by the same cable as the city line from an engine within the city, since the earnings are directly dependent upon the franchise granted by the city. Earnings from rentals of the privilege of advertising in the cars are within the conditions of such ordinance. (Cin. Super Ct. Cincinnati v. Mt. Auburn Cable R. Co. 28 Ohio L. J. 276.) STREET RAILWAY LAW. 1 79 Ordinance requiring Street Railway to fave part of Street. Under an ordinance requiring a street railway company to keep the por- tion of the street between its tracks, and two feet on each side thereof, in as good repair and condition as the city keeps the balance of the street, it is the duty of the street railway company to pave said portions of the street when the city paves the balance. It is insisted by counsel for respondent that no further duty is imposed by the ordinance than to repair the por- tions of the streets in question, and that the duty to repair does not include the obligation to pave. Under the duty to repair would doubtless be included the liability to restore any pavement that might be put down by the City; but simply to repair cannot be construed into a duty to place the pavement in the first instance. Coun- sel for the City contend that the ordinance in question means more than simply to repair. In determining the rights and duties of the respective contestants here, a liberal construction should obtain in favor of the relator. The grant to the respondent of the right to use the streets for the prosecution of its business for profit is a benefit and privilege, and the rule is that such grants are to be construed against the beneficiary. Taking the language of the contract between the parties in its literal meaning, we think it cannot be confined simply to repairs. We think that when the city paves the balance of the streets, the duty devolves upon the respondent company to pave between its tracks and two feet on each side. When the City paves, if the railroad company declines, it cannot be said that it keeps those portions of the streets in as good condition as the City keeps the balance. In order to meet this obligation, the railroad company must pave. No question of changing the grade of the street is pre- sented by the pleadings. The ordinance provides that l80 STREET RAILWAY LAW. said portions of the street shall be kept in as good repair and condition as the city keeps the balance, and of even grade with the street, excepting in cases of regrading. The 13th section of the ordinance expressly provides that the grade of the railway tracks shall not be changed at the expense of the railway company. That mandamus is the proper remedy is not denied. It is settled by authority that the writ will lie against such a corporation to compel it to perform a clear duty to the public. (Sup. Ct. Fla. State vs. Jacksonville St. R. Co. 10 So. Rep. 590.) (Note. — In the case of Mayor vs. New York & H. R. Co. (Supreme Court N. Y.) 19 New York Supplement 67, a street railroad had been authorized to lay its tracks in certain streets on condition that it should pave the streets in and about the tracks. Afterwards an Act was passed authorizing it to extend its tracks in Madison avenue from 79th street to 86th street, and as far northerly as the avenue might from time to time be opened, but it did not expressly impose the condition that it should pave the street — merely providing that in the construction, use and operation of its tracks and extensions, it should have the same rights and privileges which it then possessed under former grants. The Act also provided for the appointment of commissioners to fix the amount of compensation to be paid for the rights and privileges granted. It was held that the Act did not impose on the company the duty of paving between its tracks north of 79th street. — Ed.) Electric Railway — Operation by Construction Company — Liability for Personal Injuries. Though under the contract for the construction and equipment of an electric railway line, the construction company agrees to operate the road satisfactorily for ten days before payment for the equipment, still where during that time regular passenger cars manned with the usual help and on which the public are invited to take passage at the usual fare, are run, the railway company id STREET RAILWAY LAW. 101 responsible for an accident to a passenger occasioned by negligence in the operation of the cars. (Sup. Ct. Wash. Cogswell vs. West St. &c. Elec. R. Co. 31 Pac. Rep. 411.) Care required of Street Railway at Crossing of Steam Railway — Injury to Passenger on Street Car. A passenger in a street car, while crossing the tracks of the Chicago & Northwestern Railway, was struck by an engine belonging to that road and seriously injured. The action was brought against the street railway com- pany and the steam railway company jointly. Judgment was rendered against both, and the street railway com- pany alone appealed. Upon the trial there was evidence that upon the arrival of appellant's car at the Rockwell street crossing, the gates were down and a freight train was passing; that as soon as the gates were raised by the man in the signal tower, appellant's conductor, who had gone ahead of the car, gave the signal to the driver to come on; that he gave this signal before the freight train had completely passed; that as soon as the freight train was entirely by, the driver of appellant's car started on and went directly in front of an engine going in a direction opposite to that in which the freight train was moving. Grade crossings are well known to be places of immi- nent peril; the diligence of the carrier at these points must be proportionate to their well known danger. We think it was the duty of the servants of appellant to go forward upon the railroad tracks to a position where could be ascertained the fact whether or not the cars of said Northwestern Railway Company were approaching said crossing. 1 82 STREET RAILWAY LAW. It is immaterial that the negligence of the Chicago & Northwestern Railway Company may have been greater than that of appellant; the question presented, so far as appellant is concerned, is, Did it perform its duty toward appellee, its passenger? (App. Ct. 111. Martin vs. West Chicago St. R. Co.; not yet reported. Street Railroads — Use of Steam — Ordinance — Turn-outs and Switches. A city ordinance authorized the construction of a rail- way on certain streets "to be operated by electricity or such other power as will not unnecessarily obstruct the use of said streets by the public." Held, That evidence that it was not intended to allow the use of steam, was inadmissible. Said ordinance did not confer on the company the absolute right to operate its cars by steam, the question as to whether the use of steam would "necessarily obstruct said streets" being one of fact for the jury. The grant of a right to construct a railway carries with it the right to construct such turnouts and switches as may be necessary for the successful operation of the rbad. Where a city ordinance grants permission to build a rail- road in its streets the right of the city to be consulted about the situation of side tracks, switches and turn- outs, is of equal dignity with the right of the railway company to construct them; and until it can be shown that the city has waived its privilege or declined to act, the railway company is not entitled to an injunction in that respect. (Sup. Ct. Tex. Mayor vs. Houston B. & M. R. Co. 19 S. W. Rep. 786.) STREET RAILWAY LAW. 1 83 Elevated Railroad — Conditional Franchise. The condition in the articles of association of an elevated railroad company organized under the New York Rapid Transit Act, that the company shall not be permitted to do any work towards the construction of its road on a certain street until it shall have entered into an agreement with the companies owning and operating a surface steam railroad thereon, transforming said surface road into a mere street railway and transferring its operation by steam to the elevated tracks, is a condition subsequent and does not prevent said elevated railroad company from acquiring a franchise or capacity as a corporation until such contract is made. The agreement directed is to precede construc- tion, and not corporate existence. The company is to make the agreement, and it must exist first in order to agree at all. When it has acquired corporate life and so has capacity of acting, it is endowed, not With absolute, but with a conditional franchise to become absolute, by the performance of one or more imposed conditions. Such condition is authorized by the provision of the Rapid Transit Act, that commissioners may impose such conditions on railroad companies organized under it as shall seem expedient, and that they shall embody the con- ditions in the articles of association tendered for accept- ance. (N. Y. Ct. App. In re Atlantic Ave. El. R. Co. 32 N. E. Rep. 771.) Contract to Construct Street Railway to Plaintiff 's Land — Action for Breach — Damages. A street railway corporation, of which plaintiff and associates were stockholders and officers, in its corporate capacity, agreed to sell certain franchises to defendants, 184 STREET RAILWAY LAW. stipulating to transfer to them additional rights of way over certain portions of the proposed route. Afterwards plaintiff and associates, as individuals, sold and transferred the stock of the corporation to defendants, the latter agreeing to construct and complete the railway within a specified time, to a certain point, which was over the route for which the corporation agreed to secure the rights of way. Held, that the failure of the corporation to secure the rights of way is no defense to an action by plaintiff for the breach of defendant's agr ement to con- struct the railway, as their contract with plaintiff and associates was separate and distinct from the contract with the corporation. After plaintiff had purchased on contract land which he subdivided for residence lots, defendants agreed with him to construct to such land a street railway within a speci- fied time and to sell tickets for passage to residents and property owners on such land, at a specified price. Held, that in an action for breach of defendant's contract, defendants must have known that the loss to plaintiff of he enhanced value of the land by the construction of the railway, would be the result of their failure to perform the contract. (Sup. Ct. Ore., Blagen v. Thompson. 31 Pac. Rep. 647.) Crossing of two Street Railway Tracks — Care required — Collision between Street Cars. Deceased was a driver of a horse car, in the employ of the West Chicago Street Railway Company, and was thrown from his car and killed by a collision which occurred between the car which he was driving and a grip car crossing its track. STREET RAILWAY LAW. 185 Where street cars of two different lines have equal rights at a crossing of their tracks, the fact that the hind end of the car upon one of them is struck by the front end of the other, while passing over such crossing, of itself and without explanation, raises the presumption that the collid- ing car was carelessly managed. * * * Any increase in speed of the horse car or lessening of the speed of the grip car only makes the case worse for the grip driver. He was bound to see the horses when they entered upon the cable track, and if he did see them there was no rate of speed shown by the evidence of both or either of the cars that would render it impossible for him to stop the grip before he struck the rear end of the horse car, if he exercised reasonable diligence to do so. If he did not see the horses take the crossing, or having seen, did not apply his brake in time, or with sufficient power, then he was negligent. If he undertook to calcu- late the rate at which the horse car was moving and by that calculation gauged his own speed, he took the risk of all errors in his estimate. Nor is he relieved by any sudden or unexpected slackening of the speed of the horse car in going over the track. The horse car had the crossing and the gripman was bound to so govern the movement of his train as that whether the horse car went fast or slow, and even if it came to a dead stop with the rear end still in the cable track, he could stop before striking it. (Ills. App. Ct. Chicago City Railway Company v. McLaughlin. 40 Ills., App. Rep. 496.) 1 86 STREET RAILWAY LAW. Street Railway Company Using Bridge Belonging to State. A street railroad which lays its track across a bridge constructed and maintained by the state, and constituting a part of the highway on which the railroad line runs, does not adopt the bridge as one of its appliances so as to become liable for an injury to a passenger, caused by defects therein, to the same extent as if the bridge had been buil' by the Company. Peckham, J.: — The defendant owns and operates a street railroad in the city of Rochester. The Erie canal intersects Main street in that city, and at the intersection the canal is crossed by a bridge built, owned and main- tained by the state, and in effect the bridge forms a con- tinuation of the highway of West Main street. The bridge was so constructed as to lift vertically by hydraulic power, when boats were to pass. In order to act as a counterbalance and thus to reduce the amount of power necessary to lift the bridge, heavy weights made of iron troughs filled with pig iron were suspended in the upper part of the framework of the bridge. They were suspended by cables fastened to the floor of the bridge, and passing through pulleys in the upper framework. The troughs were fastened by means of stirrups which were made of iron. The plaintiff was a passenger on one of defendant's cars, and while the car was slowly crossing the bridge in question, one of the stirrups gave way and let one of the troughs drop, so that the pieces of pig iron slid out, and some of them fell upon the car beneath and broke through, and one of them struck and severely injured the plaintiff. The evidence as to the defect in the welding of the stirrup and how it was discoverable, and the plan and method of the construction of the bridge, was uncontra- dicted. Upon such evidence the trial judge refused to STREET RAILWAY LAW. 1 87 submit the question of defendant's negligence to the jury, and held that the defendant was liable, and only the ques- tion of damages was left to the jury. The court charged the jury that the defendant was bound to precisely the same liability with regard to any defects in the bridge as though it had built the bridge originally to serve as part of its railroad, and it was bound by the same rules which the law applies to every other carrier of passen- gers with reference to the means it adopts as part of its roadway and part of the appliances which it may have occasion to use in the transaction of its business as a common carrier. We do not think the defendant rested under such extreme liability. It may be assumed that the defendant is a corporation organized under the general railroad act for the purpose of building a street railroad through cer- tain streets in the City of Rochester. Under that Act it acquired no right to cross the canal on any bridge it might build; it acquired no right to build any bridge; and although it may possibly have the power of emi- nent domain to acquire land for some purposes, it could acquire none to build a bridge over the canal. And its organization under the general Railroad Act for the pur- poses of a street railroad required it to keep to the pub- lic streets or highways, and gave it no right to lay its tracks elsewhere. The bridge mentioned was nothing more than the continuation of the city street which it con- nected; and although it might have been necessary for the the defendant to have obtained permission of the state authorities before laying its rails and running its cars over the bridge, yet we are of the opinion that in crossing such bridge it did not thereby make it an appliance of its own to the extent stated in the charge of the court below. 1 88 STREET RAILWAY LAW. We do not criticise the rule, or assume here to ques- tion it, as to the extent of liability ordinarily attaching to a carrier of passengers, including perfect roadbed and all proper appliances. We simply say that this case is not one in which to make the application of such extreme liability. We say the bridge is not such an appliance as is contemplated by the rule alluded to, and that the liabil- ity of the defendant was no greater than while pursuing its route along the public street. (N. Y. Ct. of Appeals. Birmingham vs. Rochester City & B. R. Co. 32 N. E. Rep. 995.) Person Driving' Team in Track — Attempting to Turn Out — Injury by being struck by Car. In an action for damages against defendant street rail- way company, plaintiff's evidence showed that while driving a team with a heavily loaded wagon on defend- ant's track, he saw one of its electric cars approaching two or three blocks away, and at once turned the team off the track and tried to have them pull the wagon off also, but owing to the snow the rail was slippery and the team was unable to draw the wagon from the track. The conductor of the approaching car made no effort to lessen its speed, and it collided with a corner of the loaded wagon, and plaintiff was injured. Held, That the evi- dence made a good prima facie case for plaintiff, and it was error for the court to direct a verdict for defendant. (Sup. Ct. Wis. Will vs. West Side R. Co. 54 N. W. Rep. 30.) Failure to keep Track in Repair — Upturned Bail — Personal Injury. In an action against a street railway company for personal injuries caused by an upturned rail, to a person STREET RAILWAY LAW. 1 89 driving on the street, an instruction that it was the duty of the defendant to keep its track in proper repair, that this is a condition attendant on the grant of the franchise, and if defendant neglected to do so, by reason whereof the plaintiff sustained injuries, it was negligent and is liable to plaintiff therefor if he did not in any way con- tribute by his own negligence to the injuries sustained, is not erroneous. Where the court instructs the jury that even if plaintiff did not see the obstruction, if it was plain to be seen, it was such an object as should have been observed by him had he exercised ordinary care and watchfulness, he was guilty of contributory negligence and can not recover "if he failed to exercise ordinary care and watchfulness," defendant has no ground of complaint. Where it also appears that the upturned rail was loose the night before and was nailed down again, and that defend- ant's trackman passed over the line twice on the day of and before the accident, an instruction to return a verdict for defendant is properly refused. (Sup. Ct. Pa. Bradwell vs. Pittsburgh & W. E. Pass. Ry. Co. 25 Atl. Rep. 623. Care Required as to Infirm Passenger — Time to Reach Seat — Negligence. In an action against a street railway company for injury to a passenger, the evidence showed that plaintiff, an elderly lady, entered the car by the front platform, and that, before she reached her seat, the car started and she fell down. Held, That whether plaintiff's conduct in entering the car from the front platform and going towards a seat with her back to the horses without assist- I5 its entire width was required, and the commissioners appointed for that purpose reported that they had made an estimate of the cost of such improvement. Held, that the cost of paving the center sixteen feet of the street was wrongfully included in the estimate of the cost of the improvement to be charged upon the property benefitted, and that judgment of confirmation of the assessment roll was properly denied. In such case the ordinance for the improvement of the entire street is not void, if so much was required for the public convenience ; but the city having required the street railway company to fill, grade, pave, and keep in repair during all the time it has the privilege of using the street, sixteen feet in width, when a double track is used in accordance with such ordinance as the city council may pass respecting such fillings, grading, paving or repairing, and requiring the same to be done by the railway company with like material in like manner and at the time as required in respect to the rest of the street, the cost of paving so much of the street should have been excluded from the estimate. When a street railway company is required to pave its right of way in a street required to be paved, such company should not be assessed for benefits arising from the paving of the balance of the street, in the absence of proof showing that the expense of paving the right of way would not be a fair and adequate apportionment of costs according to benefits accruing to property of the railway company in the street by the improvement. (Sup. Ct. Ills. City of Chicago vs. E. A. Cummings & Co. 25 Chi. Leg. News 254.) 206 STREET RAILWAY LAW. Injury to Person Standing in Street. — Car Rounding Curve. A street railway company is not liable for injury sus- tained by one who was struck by the handle on the rear dasher of a car as it rounded a corner where she was standing near the track waiting for the car to pass and saw it before it reached her, but thought she was far enough from it to be safe, and there was no defect or mproper management in the car or it» equipments or in the track. (Sup. Ct. Mass. Widmer vs. West End St. R. Co. 32 N. E. Rep. 899.) Injury to Child on Track — Negligence of Grifman. A gripman who, at the time of running over a child which suddenly runs upon the track, is standing upon one side of the cab looking towards the houses and not hav- ing hold of grip or brake, is guilty of negligence. (Sup. Ct. Pa. Schmur vs. Citizens' Traction Co. 25 Atl. Rep. 650.) Driver Removing Passenger from Car — Action for Death — Person Having Heart Disease. A street railway company is not liable for the death of one who, during an attack of heart disease, was rudely and roughly removed from the car by the driver, under the mistaken impression that he was drunk, and placed on the sidewalk where he soon after died, where there is nothing to show that it was not the disease that killed him, or that the driver's wrongful acts in any manner produced or hastened his death. (Sup. Ct. Minn. Briggs vs. Minneapolis St. R. Co. 53 N. W. Rep. 1019.) STREET RAILWAY LAW. 2C"7 Injury to Passenger by Being Pushed from Car by Fellow Passenger — Excitement Caused by Negligence of Street Railway Company. A street railway company is not rendered liable, as matter of law, for injuries to a passenger pulled or pushed off a car by other passengers, by the fact that such injured passenger has been surprised or excited and bewildered by the negligence of the company. (Ills. App. Ct. Joliet St. R. Co. v. McCarthy. 42 Ills. App. Rep. 49. Newsboy Riding on Street Car — Care Required of Com- pany. A newsboy was injured while clinging upon the front platform of a street car as the result of the car running off the track; this court holds that in an action brought against the street car company to recover damages for the injuries received, as the evidence failed to show that the street car company or its employes were guilty of gross negligence, the boy, who was not a passenger but a mere licensee, could not recover. (Ills. App. Ct. North Chicago St. R. Co. v. Thurston. 43 Ills. App. Rep. 587.) 208 STREET RAILWAY LAW. City Granting Exclusive Franchise to Street Railway. Legislative authority conferred upon a municipality to "permit, allow and regulate" the laying of tracks for street cars, does not give power to grant for a term of years the exclusive right to occupy the street with street railroads. The legislature has, as the general representative of the public, plenary power over the streets and highways within the limits of the municipality, and has, unless specially restricted by the constitution, the power to authorize the building of a railroad on a street or high- way, without the consent of the municipal authority, and may directly exercise this power, or devolve it upon the local or municipal authorities. But the general grant of power to a municipal corporation, which is but a mere local agency, to authorize the use of its streets for such purposes, while it carries with it by implication all such powers as are clearly necessary for the convenient and proper exercise of the authority expressly granted, does not authorize the city to grant an exclusive franchise for that purpose. When an exclusive privilege or franchise to use the streets of the city for the purpose of the street railway is drawn in question and is claimed to be derived through a municipal ordinance or contract, the power of the municipal authorities to pass the ordinance or enter into the contract must be free from doubt. Nothing short of express legislative authority will authorize a municipal- ity to grant such a privilege or enter into such a contract. We take it to be settled by the weight of authority that a municipal corporation cannot create a monopoly by grant- ing the exclusive privilege to any person or corporation to use its streets for laying street railway tracks, without express legislative authority so to do; and this power must be plainly conferred in express words, or arise from STREET RAILWAY LAW. 2CX) the language used by implication so direct as to amount to the same thing. The mere general power to permit or allow the use of the street for such purposes, is not suffi- cient to authorize the granting of exclusive privileges. As the charter of the City of Salem does not in express words or by necessary implication equivalent thereto, confer upon the city the power to grant the exclusive privilege to one person or corporation to occupy its streets with a street railway, but only contains a general grant of a continuing power to " permit, allow and regu- late the laying down of tracks thereon," it seems clear that it did not authorize the city to grant an exclusive franchise to plaintiff's assignor, and thereby disable itself from granting a similar privilege to defendant over the same streets. It is earnestly urged that the construction of street railways necessarily requires the expenditure of a large sum of money, usually without the prospect of immediate return, and hence private persons would not be likely to engage in such enterprises without an assurance that they would be protected from competition for a sufficient length of time to remunerate them for the outlay. This argument, which is not without force, suggests con- siderations of policy which might influence the Legisla- ture to grant or authorize the granting of exclusive franchises, or induce a municipality to make a franchise practically exclusive by withholding a like privilege from a competing enterprise, but a reference t@ the cases cited will show that it has often been urged, but without effect, when a Court is called upon to construe particular legislation. (Sup. Ct. Ore. Parkhurst v. City of Salem. 8 Notes of Cases. 27.) 2IO STREET RAILWAY LAW. Injury to Person Crossing Street — Car Rounding Curve — Excessive Speed — Contributory Negligence. The plaintiff testifies that she was proceeding to cross Druid Hill avenue to go to a store on the other side of the street; that while still on the pavement close to the curbstone she looked up and down the street to see if a car was coming, and that she also listened; but neither hearing nor seeing one, she proceeded on her way across the street. She further testified that the accident occur- red in the month of February, at seven o'clock in the evening, when it was rather dark, and that there was a curve in the street about half a block below the place, and this curve prevented anyone from seeing a car com- ing until he or she got well on towards the curb or until the car got around the curve ; that she was crippled, and could not walk very fast. In coming up Druid Hill avenue the car turned a corner; the distance of this cor- ner from the place where the accident occurred is not stated. One of the witnesses testified that it took the car about a minute for the car to run from this corner to the place of the accident. The gripman in charge of the car testified that the full speed of the car was ten or twelve miles an hour, and that it was going at about half speed, perhaps a little faster. In a large, populous city, it is the duty of the driver of the car to see that the track is clear, and also to exercise a constant watchfulness for persons who may be approaching the track; unless he does so, he does not exercise that care and prudence which the law imposes on him. It is of the greatest importance to enforce this rule in cases where cars are propelled, as in this instance, by agencies capable of attaining a speed of ten or twelve miles an hour. If the jury inferred from the evidence before them that by ordinary care the gripman could have . STREET RAILWAY LAW. 211 seen the plaintiff in time to avoid running over her, it was perfectly competent for them to make that deduction from the evidence. If the car was not in sight, it could not he negligence on her part to attempt to cross, and if a car came upon her and caught her in a space of one minute, while she, a cripple, was crossing the track, we could not withdraw the question of contributory negligence from the jury and make it a question of law without a calculation of chances too nice for the Court to make. In our opinion the case was properly to the jury. (Ct. App. Md. Baltimore Traction Co. v. Wallace. 21 Wash. L. Rep. 313.) Injury to a Person Alighting from Car — Sudden Start- ing — Contributory Negligence. The fact that a street railway passenger attempted to step off a car while it was in motion, will not prevent her recovery for injuries occasioned by a sudden start of the car so nearly simultaneous with her stepping off that she had no chance after the car started, but was obliged to step off to avoid falling. A street railway company is liable to a passenger who, without her fault, was injured by the sudden and negligent starting of the car while she was getting off. (Sup. Ct. Minn. Piper v. Minneapolis St. R. Co. S3 N. W. Rep. 1060.) Expulsion of Passenger from Car — Depositing Fare in Box — Refusal to Pay Driver. A street railway company is liable in damages to a passenger ejected from its car for refusal to pay a second fare to its driver, after he has deposited his fare in the 212 STREET RAILWAY LAW. fare-box in accordance with a rule posted in the car which forbids payment to the driver, although it has given pri- vate directions to the driver to go through the cars when crowded and collect the fares. (Sup. Ct. Pa. Perry v. Pittsburg Union Pass. R. Co. 25 Atl. Rep. 772.) Electric Railway — Excessive Speed — Cut in Street. It is gross negligence for an electric railway company to run its cars at an unusual speed through a cut which in anticipation of a change of grade, it has made in the street in such a manner that persons driving along the street must drive along the track. (Sup. Ct. Pa. Greeley v. Federal St. & P. V. Pass. R. 25. Atl. Rep. 796.) Person Boarding Moving Car — Negligence per se. It is not negligence -per se for a person with something in each hand to board or attempt to board an electric car while it is in the act of stopping to receive passengers and before it has come to a full stop. Such boarding or attempt may or may not be negligence, according to circumstances. In this case the circumstances were not so decisive as to dispense with a jury. The plaintiff had an umbrella in one hand and a handkerchief in the other. (Sup. Ct. Ga. White v. Atlanta Consolidated Ry. Co. Not yet reported.) Regulating Rates of Fare — Ordinance Requiring Con- ductors to Keep Tickets for Sale. Where a city is given the power by the legislature to fix and determine the fare which may be charged by street railways, a city ordinance may validly require that the STREET RAILWAY LAW. 213 conductors of street cars shall keep for sale six passage tickets for twenty-five cents. The power to fix the rates of fare necessarilly carries with it all incidents necessary to carry the power into effect. Thus, for a single passage the fare is five cents; if six trips are to be made, the price is fixed at six for twenty-five cents. A street railway has no depots; its stations are the street corners, and its business with the public is conducted on its cars. Is it unreasonable to require the company to sell its tickets at its place of doing business? "We think not. The plea that it is liable to be defrauded by its employes if it sells tickets on the cars does injustice to many faithful, reliable and diligent persons whose integrity is above question, and is a mere pretext to evade the ordinance requiring tickets to be sold on the cars, as will readily be seen from the stipulation of the fact that it is for the interest of the company not to sell tickets, but to collect fares in cash. But even if the claim on behalf of the company is true, which we do not believe, it must comply with the ordinance. The question is one of power, and the power of the city over the street railway is full and ample, and the requirement is reasonable, and the company must perform on its part. (Sup. Ct. Neb. Sternberg v. State. 8 Notes of Cases, 30.) Street Railway — Failure to Complete Road Within Time Specified — Liquidated Damages. The sum required to be forfeited in case of a street rail- way company's failure to complete the first line of its road within a year, is to be treated as liquidated damages and tp'tl as a penalty, where its contract with the town provides 214 STREET RAILWAY LAW. for the forfeiture by it of its right of way and privileges, and that it shall also "forfeit and pay" $500 in case of its failure to complete such line within that period, although it requires the company to give bond in the sum of $500, and after a breach the damages are found to be capable of assessment. (Sup. Ct. Ark. Nilson v. Town of Jonesboro. 20 S. W. Rep. 1093.) Obstruction of Street Car Track — Violation of Ordinance. Defendant stands convicted on the violation of an ordi- nance prohibiting the obstruction of street cars by placing obstacles upon or along the tracks. Defendant had obtained a permit from the city authorities to move a house, in which he was forbidden to obstruct the passage of the street cars at any time between five o'clock in the morning and eleven o'clock at night. The only excuse or justification offered by defendant for his acts, is that the company had agreed to let him go over the tracks and had no right to exact the sum of ten dollars as compensa- tion for taking down and replacing the wires. The defendant seems to have overlooked the fact that the street railway company could not authorize him to violate the ordinance, nor would any act of said company excuse or justify his disregard of its provisions. This prosecution was not a controversy between defendant and the company. It was on behalf of the people; for though the ordinance is of great value to the street railway company, it was enacted primarily in the interest of the traveling public — the people who have frequent occasion to use the street cars, and cannot be detained and inconvenienced either by the acquiesc- ence of the company in the creation or maintenance of STREET RAILWAY LAW. 215 any obstruction, or by the act of some person who, having difficulty with the company, obstructs the passage of the cars. The testimony of the defendant shows beyond controversy that he wilfully blockaded the track, thus violating the ordinance, and from his testimony alone the Court would have been justified in its action. (Sup. Ct. Minn. State v. Pratt. 53 N. W. Rep. 1069.) 2l6 STREET RAILWAY LAW. Temporary Track Laid JVear Obstruction. Where a street railway company places its track so near an obstruction which it is necessary for its cars to pass, that its passengers are in dan- ger of being injured by contact with such obstruction, it is a question for the jury whether the company is guilty of negligence. Whether the person injured was guilty of negligence in getting upon the car while it was in motion, is a matter for the determination of the jury under all the circumstances of the case. This was an action for damages for personal injury begun by Williams against the appellant company. Plaintiff below recovered a judgment, which was affirmed by the appellate court. In May, 1888, appellant was reconstructing its tracks, so as to substitute the cable system for horse power. As it was necessary to tear up the streets in order to insert the cable machinery, it removed the track in Lincoln avenue to the east side of the street. Upon the track thus laid for temporary use it was propelling its cars by horse power, when the acci- dent occurred by which the plaintiff was injured. On the east side of Lincoln avenue, near its intersection with Cleveland avenue, stood a- telegraph pole, outside of the curb line of the street, and leaning somewhat to the west. The east rail of the track was a little lower than the west one, and was just two feet from the bottom of the tele- graph pole. In the evening, while it was yet light enough to see clearly, plaintiff boarded one of appellant's open cars on said temporary track. Plaintiff was standing a short distance from the corner where the pole stood, and a short distance from the track. When the car came along, and while it was in motion, he stepped upon the foot-board on the east side of the car; he was soon after brought in contact with the telegraph pole and injured. The jury were fully instructed that the plaintiff could not recover unless he showed that he was in the exercise STREET RAILWAY LAW. 21 7 of ordinary care for his own safety when the injury occurred. Whether the plaintiff, in getting upon the horse-car while it was in motion, was or was not in the exercise of due care, was a matter for the jury. It may be true that the appellant was obliged to move its track to the east in order to make the contemplated improvement; but it was a question for the jury to deter- mine whether too much space was left in the middle of the street for those putting in the cable, and too little space for the passage of the cars on which the public traveled, or whether the contrary was the fact. It cannot be assumed that danger of collision with the pole could be always avoided because the company would stop at the further crossing when requested. The proximity of the track to the pole may have been a menace to persons on the car, or to persons forced by the crowded condition of the seats or otherwise to stand upon the platform or running-board. The evidence tended to show that there was posted in the cars of the company the following rule : "Passen- gers will not be allowed to get on or off this car while in motion." The conductor was standing on the platform, and was looking at plaintiff before and after he got upon the car, and shouted to him to "look out" just before he was struck by the pole. He did not warn the plaintiff not to get upon the car while it was in motion, but suf- fered him to step upon the running-board without objec- tion. It was a fair question for the jury whether the plaintiff was not invited to board the car. But we are not prepared to hold that a party is a trespasser after he gets on a horse-car, even though no fare has been collected of him before he meets with an injury, simply because he has violated a rule of the company as to his mode of get- 2l8 STREET RAILWAY LAW. ting aboard. The jury were instructed that the burden of proof was upon the plaintiff, and that he must prove his case, as alleged in the declaration, by a preponder- ence of evidence. The judgment of the appellate court is affirmed. (Supreme Court of Illinois. North Chicago Street R. Co. v. Williams. 140 Illinois Reports 275.) Street Rail-way Passenger — Injury by Collision -with Truck on Crossing Street — Right-of- Way of Street- Car. While plaintiff was a passenger in one of the cars of the defendant corporation, she was injured in a collision between the car and a truck of the other defendant, and she brought this action to recover damages for her injuries, alleging that they were caused by the concurring negligence of both defendants. A careful scrutiny of the evidence leaves no doubt that it fairly tended to show concurring negligence of both defendants, and the verdict of the jury therefore concludes us upon this point. The council for the railroad company, in a variety of forms, requested the Court to charge that the railroad company, with its car crossing the street, had the right of way, and the paramount and superior right in the street, which the driver of the truck was bound to respect; and the Court refused so to charge. The rule invoked by these requests has its application where the tracks of street railways are laid in the streets; as the cars must run upon the tracks and cannot turn out for other vehicles, they must have the preference. But a railway crossing a street stands upon a different footing. The car has the right to cross, and must cross, the street, and the vehicle has the right to cross, and must cross, the railroad track, STREET RAILWAY LAW. 210. Neither has a superior right to the other. The right of each must be exercised with due regard to the right of the other, and in a reasonable and careful manner. (New York Court of Appeals. O'Neill vs. Dry Dock, East Broadway & Battery R. Co. 52 American & Eng- lish Railroad Cases 573.) Street Railway — Charter Rights — Indefinite Grant. A special charter of a street railway company, empowering it to commence at a certain street corner and construct its tracks eastwardly and westwardly through such street, or any other streets in the borough, with the right to construct branches to its main track through any streets of the borough, does not give it the right to occupy a thoroughfare running north and south, in so far as the right to construct its main track is concerned; and the provision as to branches is so indefinite that new tracks cannot be constructed thereunder after the expiration of twenty-eight years, and after the village has become a city and the street has been granted to another company. (Supreme Court of Pennsylvania. Junction Passenger Railroad Company vs. Williamsport Passenger Railroad Company. 32 W. N. C. 152.) Child Tresspassing upon Street Car — Injury by Being Pushed Off by Driver — Liability of the Company. A street railway company is liable for injuries to a child between eleven and twelve years of age, who jumps upon the front platform of a slowly moving car, the injuries resulting from the driver striking her upon the hands and violently thrusting her off the step, so that she falls under the car and is run over, although she is a tres- passer in getting upon the car. 220 STREET RAILWAY LAW. (Supreme Court of Pennsylvania. , Barre vs. Reading City Passenger Railroad Company. 26 Atlantic Re- porter 99.) (Note. — See the case of Bess vs. Chesapeake & Ohio R. Co., West Virginia, 53 American & English Railroad Cases 64, where it is decided that to charge a railroad company for the wilfull wrong of an employe in forcing a boy from a freight train while in motion, wherety he is injured, it must appear that the act was in the course of the employe's business, and within the scope of his authority; the boy being a tres- passer and not a passenger. — Ed.) Eminent Domain — Condemnation of Leased Property. A tenant's liability for rent is not affected by condem- nation of part of the leased premises. But where the estate of both landlord and tenant in the entire premises is extinguished by condemnation, the obligation to pay rent ceases. In a proceeding to condemn leased land, on which the tenant has made improvements under a lease providing that on its expiration the improvements shall belong to the landlord, the measure of tenant's compensation is the present value of the leasehold estate, subject to the rent, without including the value of such improvements. (Supreme Court of Illinois. Corrigan vs. City of Chicago. 4 Chicago Law Journal 328.) Person Riding on Crowded Car — Standing on Platform — Contributory Negligence. There is evidence that when plaintiff boarded the car, every seat and the aisle were occupied; that the rear platform was also fully occupied, and that there were several people on the front platform. Plaintiff, finding he could not get on the rear, went to the front platform. From this position, it appeared to him that there was no available space on the inside. If the jury found the facts STREET 1 RAILWAY LAW. 221 in line with these tendencies of the testimony, they would have been justified in finding further that the plaintiff exercised due diligence and caution in ascertaining the situation, and hence had a right to act upon the matters which such diligence and caution disclosed, whether they were the real facts or not. It follows that, assuming proper circumspection to have been observed by plaintiff, evidence as to whether the car presented the appearance of being entirely full, was pertinent and properly received, and the charge requested for plaintiff, which authorized the jury to find plaintiff free from negligence in taking a position on the platform, if there was a reasonable neces- sity, real or appparent, for his doing so, correctly stated the law. (Supreme Court of Alabama. Highland Avenue & Belt Railroad Company vs. Donovan. 52 American & English Railroad Cases 568.) Attempting to Board Moving 1 . Car — Injury by Running Against Passenger Standing on Car Step. The defendant's theory was that while the car was in motion, at a place where, by the rules of the defendant company, the driver had no right to stop it, the plaintiff rushed from the sidewalk towards the car; that the driver called out to her not to come near the car ; that she paid no attention to the warning, but attempted to seize the forward part of the car with her hand ; that a passenger who was standing on the front platform, stepped onto the step of the car and put out his arm to prevent the plaintiff from seizing the car; that she ran against his arm, and was thrown down, and did not touch the car at all. Under the court's instructions, which were properly given, the jury must have found that the defendant's 222 STREET RAILWAY LAW. theory of the accident was correct; and, if so, the plaintiff was not entitled to recover. (Supreme Court of Massachusetts. Gallagher vs. West End Street Railroad Company. 156 Massachu- setts Reports 15 7.) STREET RAILWAY LAW. 223 City revoking Street Railway Franchise. This case holds that a city may revoke a grant of a franchise to a street railway company by repealing the granting ordinance, even after the track has been laid, when in the judgment of the City Council, safety, convenience and the proper regulation of the use of the street require it. In the opinion, the Court said: The control of the city over the streets is attended with the duty of preserving them for their legitimate pur- poses. They are intended for the passage of the people over them, on foot, on horseback and in vehicles, on their various occasions of business, convenience and pleasure. It is not competent for the city to defeat the primary purposes for which they were dedicated to the public use. They are highways, and must be maintained as highways so long as they are kept in existence. The power over the streets is held on the same trusts as the other legis lative powers conferred on the Mayor and City Council. It is intended to be used for the purpose of preserving them in the character of streets in such condition as may be most suitable for the public use. It is of incalculable importance to the public interest and there can be no more reason to suppose that the city can abridge or surrender this legislative power than any other. In the State of New York, where a railroad company may, by the con- stitution and statutes, acquire an estate in perpetuity in the streets, it is held that statutes authorizing telegraph companies to erect and construct the necessary fixtures for their lines upon public streets, could be repealed after the fixtures had been erected. These were general, public legislative acts, in the exercise of the police power of the state, and therefore they were not beyond the reach or touch of future legislation. The legislature did 224 STREET RAILWAY LAW. not intend to divest itself, and could not divest itself of its control over the streets for the public welfare, and we must infer from the language used that it did not intend to bind itself by an irrevocable grant. If therefore these acts are to be construed as merely conferring a license which has been acted upon by the plaintiff, the legislature could revoke the license or modify it in anyway or at any time when the public interest might require it. If an ordinance cannot be repealed which will reduce Lexing- ton street to the condition which we have described, then truly the City Council have lost all control over the streets, and have renounced their legislative power, and it will be demonstrated that they have the power to destroy their utility for the legitim ate purposes of streets, and to convert them to places of extreme peril to life and limb, but not the power to keep them in a condition suit- able for their ordinary use as highways. Our municipal governments were not instituted for the purposes of mak- ing any such result possible. The repealing ordinance was passed because, as stated in the preamble, the City Council thought that it was required by "the public safety and convenience, and the proper regulation of the use of the streets." These conditions for the repeal were within their legislative judgment and discretion, and the evidence showed that the ordinance has " a real and substantial relation " to the objects proposed. It is there- fore not subject to supervision or review by the courts. This legislative authority over the streets, delegated to the City, is sometimes classified as belonging to the police power— that is to say, that great power which embraces the protection of life, limb, health and property, and the promotion of the public peace and safety. It is a high conservative pbwer of the utmost importance to the exis- STREET RAILWAY LAW. 22$ tence of good government. It has been most emphat- ically declared by the Supreme Court of the United States on several occasions that a state cannot limit its exercise of this power by contract, or in any other way. Some of the best known and most stricking cases are Stone vs. Mississippi. 101 U. S. 814; Beer Co. vs. Massachusetts, 97 U. S. 25; and Fertilizing Co. vs. Hyde Park, id. 659. But supposing this designation not to be appropriate in the present instance, the name given to the power is of no importance. It is expressly conferred bythe legislature. Maryland Court of appeals, Lake Roland El. R. Co. vs. Mayor, etc., of Baltimore, 8 notes of cases, 43. (Note.—" The legislature of the state has full and preeminent authority over all public ways and places. But the legislature, instead of exercis- ing this authority directly, unusally confers upon the municipal author- ities the power to control and regulate the roads and streets within their jurisdiction. Just how far these powers extend in any particular case, must be determined by the special charter or legislative enactment by which the authority is conferred." Elliott on roads and streets, 327. In granting a railway company the right to use its street the munici- pal corporation exercises a governmental power delegated to it by the legislature, and the ordinance when accepted is in the nature of a con- tract, but it is not a contract entirely beyond the municipal or legislative control. No contract can be made which assumes to surrender or alien- ate a strictly governmental power which exists for the welfare of the public. It cannot be doubted that a company which secures the right to use the streets of a municipal corporation, does it subject to the police power resident in the state as an inalienable attribute of sovereignty. Same, 564. The state or its authorized agencies may require a street railway com- pany to do whatever is regarded to be for the health, safety and welfare of the people. The authority to enact measures for these purposes never passes from the people, all corporate rights being accepted subject to this sovereign power. The rights of the municipality, however, can- not be extended so far as to permit it unneces9rily to limit or restrict the operation of the railroad company, nor to authorize any act that will destroy the company's franchise or arbitrarily interfere with its busi- ness Booth on Street Railways. 222. 226 STREET RAILWAY LAW. "The exercise by the State, at any time, of its police power, cannot be construed into a violation of the Federal Constitution, as impairing the obligation of contracts, notwithstanding its effect may be to repeal exist- ng charters or otherwise invade the terms of legislative engagements." American & English Encycopaedia of Law, Title "Constitutional Law" page 747. "The doctrine that grants of franchises are contracts, has been fre- quently invoked in efforts to protect corporations from the operation of laws passed in pursuance of the police power of states. But all agree that the Legislature cannot bargain away the police power of the state, and while irrevocable grants of property and franchises may be made if they do not impair the supreme authority to make laws for the right government of the people, no legislature can curtail its power to make such laws as they deem proper in matters of police." Same, Title, 'Franchises," page 621.) Contributory Negligence — Failure to look and listen — Driving on temporary Roadway. Owing to a washout, the city constructed a temporary roadway about 1 20 feet in length near a street car track, and persons driving along the street were compelled to cross the track when they reached the temporary road- way and again when they left it. Held, that a driver of a wagon, with full knowledge of the dangerous character of the place, crossing the car tracks on the temporary roadway without looking for an approaching car, which struck him as he was attempting to cross again, was guilty of contributory negligence and could not recover from the street car company. Where the temporary roadway was of sufficient width to permit the street cars to pass wagons and other vehi- cles, the motor-man was guilty of no negligence in fail- ing to stop the car or slacken its speed after discovering the driver on the temporary roadway, since he was not bound to anticipate that the driver would attempt to cross the tracks in front of the. car. (Supreme Court of Washington. Christenson vs. Union Trunk Line, 32 Pacific Reporter 1018.) STEEET RAILWAY LAW. 227 Municipal Corf orations — Control of Streets — Interfering ■with Street Railway. Spokane city ordinance authorizing a street railway company to construct its tracks in the streets, provided that "nothing herein shall be deemed or construed to mean that the city relinquishes any of its rightful author- ity over the streets * * * but the city shall have full power to enter upon said streets or any parts thereof for the construction of sewers or other public works." Plaintiff brought the action to restrain the defendants from proceeding with the construction of a certain sewer, for the reason that in the prosecution of the work the railway of the plaintiff would be greatly interfered with. It may be said, as a general proposition, that the city has absolute authority over the streets and every part thereof for the purposes of constructing sewers or making other improvements which the welfare of the city demands. The grant of a franchise to a street railway company would be subject to this general rule, even although there was no reservation of any rights of the city in the ordinance by which said franchise was granted. To give any force to such reservation at all, it must be held to apply to that portion of the street in con- troversy. The city had the right to construct the sewer in the center of the street as it was proposing to do. (Supreme Court of Washington. Spokane Street R. Co. vs. City of Spokane, January 31st 1893, 32 Pacific Reporter, 456.) Obstruction of Street-car track by paving- Contractors — Rights of Street Railway. Contractors under contract with a city to pave a certain street, have no power to obstruct the passage of street 228 STREET RAILWAY LAW. cars over such street during the paving of the same, where the contract gives no such power, and it is shown that such work has been and can be done without such interference. (Supreme Court of Wisconsin. Milwaukee Street R. Co. vs. Adlam, 55 Northwestern Reporter, 181.) Street Railway laying Track without Authority — Acquies- cence on part of City — Ordinance requiring track to be torn up. The appellant brought an action against respondents to prohibit them from interfering with its street railway upon Division street in the city of Spokane Falls. On July 16, 1886, the city by an ordinance of that date, granted to appellants' assignors the right to lay down, maintain and operate a street railroad upon certain streets, which were named, of which Division street was not one ; but in building its road it laid a portion of its track on Division street. On March 14, 1889, the Spokane cable railway company obtained a similar franchise from the city for the construction, operation and maintenance of a cable railway on sundry streets, among which was Division street. The Spokane Cable Railway Com- pany had in part complied with the terms of its ordinance by laying down certain rails, one line of which was on the outside of each of the rails of complainant's orgi- nal track, this having been done by agreement between the two companies. Subsequently, and before the com- mencement of this action, the Spokane Cable Railway Company had sold and assigned to the appellant all of its rights under the ordinances granting to it authority to maintain a cable railway in Division street. The City Council, on June 16, 1890, passed a resolution requiring STREET RAILWAY LAW. 229 the plaintiff to tear up all of its rails on Division street, and cease operating its line of railway upon said street. The supplemental complaint showed that notwithstanding a restraining order issued by the Superior Court, the respondents had destroyed a portion of the appellants track; that the police officers of the city have protected the City Park Transit Company in laying down its track in place of appellant's thus torn up, and that other por- tions of the track of appellant were still intact, respon- dents, however, threatening to dispose of that in like manner. A municipal corporation should not be per- permitted to stand by and see large amounts of money invested in enterprises of this sort, by persons who act under the mistaken view that they have legal authority. The road was operated for upwards of two years, during which time the city made no objection, and from year to year levied and collected taxes upon this very property, and up to this time, so far as complaint shows, no objec- tion has been made to the operation of a street railroad upon Division street. The appellant, we think, has suc- ceeded to whatever right the Spokane cable railway had under the ordinance authorizing the maintenance of a cable railway on Division street. The mere fact that the grantee of a franchise to lay and maintain a cable railway, should have laid down a railway not adapted to the use of the cable, but only adapted to use by means of horses, would not constitute the horse railway a nuisance which could be abated by the municipal corporation at its pleasure. In such a case the only proper course would be for the city to take such proceedings as would result in compelling the operation of the road by cable instead of by horses. A franchise of this kind is a contract which it does not lie in the power of either party to 23O STREET RAILWAY LAW. abrogate by such summary measures as were taken in this case. (Supreme Court of Washington. Spokane Street Railway Company vs City of Spokane. June 20, 1893.) Statute requiring Street Railroad to keep Roadway level — Supervision of Engineer. A statute requiring a street railway company to keep the roadway level with the rails, between them and two feet outside, under the supervision of the state engineer, is not complied with by the mere approval by the engi- neer of what has been done, where the roadway is not in fact level. (Supreme Court of Nova Scotia. Joyce vs. Halifax St. R. Co., 24 Nova Scotia Reports, 113.) STREET RAILWAY LAW. 23 1 Injury to Child by Car Left with Unfastened Brakes. Where a street railway company leaves a car standing in the street with unfastened brakes, contrary to the city ordinances, it is not liable to a child who goes on the car to play, and is injured by the flying back of the brake. In the opinion the Court said : — Leaving the cars in the street as it did, was not an invitation or license by the defendant to him to play upon them, even though defendant knew that they were cal- culated to attract children, and did in fact attract them. Knowledge on the defendant's part that they attracted children was not an invitation or license to them ; other- wise the fact that one knowingly maintained on his own premises an object that allured children, would constitute an invitation to them. Nor could an invitation or license be implied from the negligence of the defendant, if there was negligence in leaving the cars in the street. The most that can be said for the plaintiff is that the defend- ant, knowing that the cars would be and were attractive to children, was bound to anticipate what actually occurred, and to exercise a corresponding degree of care to see that the cars were securely fastened and guarded, and is liable for an injury occurring to the plaintiff's intestate, through its failure to do so. This assumes that all that the plaintiff is required to show is that his intes- tate acted as reasonably might be expected of him. But he might do that and still be a wrongdoer and trespasser, and contribute by his conduct to the injury which he received. If he did, then the fact of his youth, and the fact that the defendant's negligence also contributed to it, would not render the defendant liable. If the cars had been set in motion by other children, and the plaintiff's intestate had been injured by them while lawfully upon 232 STREET RAILWAY LAW. the highway, the defendant clearly would have been liable. But he was using the highway and the cars for play, and was a joint actor with other children in causing that to happen which resulted in his injury. We might fairly assume, if it were necessary, that a boy ten years of age and of ordinary intelligence would know that he had no right to play on cars which a street railway company had left standing in the street. Upon the declaration as we interpret it, we do not think that, under the decisions in this state, the plaintiff is entided to recover. (Supreme Court of Massachusetts. Gay vs. Essex Electric Street R. Co. 8 Notes of Cases 52). [Note. — "A child injured while trespassing has no right of action, unless injured by negligence of defendant when the injury might have been avoided by ordinary care on defendant's part. But when a child of tender years commits a mere technical trespass, and is injured by agencies that to an adult would be open and obvious warnings of danger, but not so to a child, he is not debarred from recovering, if the things instrumental in his injury were left exposed and unguarded and were of such a character as to be likely to attract children, excite their curiosity and lead to their injury while they were pursuing their childish instincts, s*ch dangerous and attractive instrumentalities become an invitation by implication. This is the principle of the turn-table cases, in which chil- dren have been allowed to recover for injuries caused by playing with railroad turn-tables which were left unfastened and open to public access. American and English Encyclopaedia of Law."] Collision with Grip-Car — Evidence — Distance Within Which Car Can be Stopped. In an action against a city street railway company to recover damages for negligently colliding with a horse- car at an intersection of the track-ways and thereby causing the death of the plaintiff's intestate, it is compe- tent to show, as bearing on the question of negligence, that defendant's grip-car was not so near the point when STREET RAILWAY LAW. 233 the horse-car was crossing the cable track, as to make it impossible to stop it before it came in contact with the horse-car. In such case a witness testifying as to the possibility of stopping a cable car within a stated distance, can answer as to the source and basis of his knowledge. If such witness has been in the service of street car companies, a reference by him to previous experience and observation, will not be improper, because it may tend to show that he was qualified to give evidence as to the distance within which it was possible to stop such a car. (Supreme Court of Illinois. Chicago City Railway Co. vs. McLaughlin. 25 Chicago Legal News 396.) Electric Street Railway — Teamster Driving in Track. A teamster driving along the track of an electric street railway, is not guilty of negligence in failing to get off the track when the car comes along, when he tries his best so to do, and would have done so but for the reason that the rails were wet and slippery, and the ice and snow thereon held his wheels, nor in turning towards the other track instead of attempting to turn out on the side away from it, where he had no reason to anticipate that he would be unable to drive off the track at any time, and get out of the way of a car. The conductor on an electric street car, who sees a loaded team upon the track, endeavoring to get off, but unable to do so because the wheel slipped along the rail, who has ample time to stop the car before it strikes the wagon, is guilty of negligence where he does not attempt to slacken the speed of the car until within twenty feet of the wagon. (Supreme Court of Wisconsin. Will vs. West Side R. Co. 54 Northwestern Reporter 30.) 234 STREET RAILWAY LAW. Injury to Passenger Alighting — Sudden Starting of Car. If the conductor of a street railroad car negligently fails to observe whether a passenger has alighted, or knowing that he has not, negligently starts the car too soon, and in consequence of that, a sudden jerk of the car takes place and throws him down, and is the immediate cause of his falling and injury, and the accident would not have happened but for that fact, such negligence as might be imputed to him in being on the steps of the car can- not, under the circumstances, be properly held to be con- tributory negligence. It is the duty of a street railroad company to stop when a passenger is about to alight, and not to start the car until he has alighted. (Supreme Court of the United States. Washington & G. R. Co. vs. Tobriner. 147 United States Reports 571.) Crowded Condition of Car — Passenger Standing on Step — Contributory Negligence — Directions of Driver. A passenger injured by being knocked off the front platform of a street car, was not guilty of contributory negligence as matter of law, in riding on the step outside of the gate, where the car was so crowded that there was no other available space, and he was received as a passenger, and was by the driver permitted and directed to take such position. Standing on the front platform of a street car, outside of the gate, by the permission or direction of the driver, is not so obviously dangerous as to prevent a recovery by a passenger who was knocked off the steps without his fault. A statute providing that street railway companies in a STREET RAILWAY LAW. 23$ Certain city shall not be liable for injuries to persons caused by their getting on or off the cars at the front end, does not apply to a passenger who when injured was not getting on or off, but was riding by direction of the driver on the steps of the front platform. (Supreme Court of Missouri. Seymour vs. Citizens R. Co. 21 Southwestern Reporter 739.) Center Pole too JVear Track — Injury to Passenger — Contributory Negligence in Having Arm Out of Window. A passenger upon an electric street car is not guilty of negligence -per se which will prevent her recovery for injuries from her arm coming in contact with a center pole set too near the track, in resting her elbow upon the sill of the car window, from which it is made to protrude by a sudden motion of the car. (United States Circuit Court, Eastern District of Louisiana. Schneider vs. New Orleans & C. R. Co. 54 Federal Reporter 466.) Action for Death -of Child — Excessive Speed of Car — Team Frightened. A street railway company is not guilty of culpable negligence, rendering it liable for the death of a child, because its car was going faster than the maximum speed allowed by the city ordinance, where the mules hitched to the car became frightened at an engine and started up the street, and before they had gone more than about fifty yards, the child ran in front of the car, only about three or four feet in advance of the mules, and so near that the driver was unable to avoid the accident. (Supreme Court of Virginia. Trumbo vs. City Street Car Co. 17 Southeastern Reporter 124.) i$6 STREET RAILWAY LAW. Injury to Person at Street Crossing — Failure to Ring Gong — City Ordinance. Failure to ring the gong of a cable car while passing a street crossing is negligence j>er se — especially where such failure violates an ordinance of the city requiring the gong to be kept sounding until the crossing shall have been passed. A street railway company is not relieved from liability for injuries occuring because of failure to ring the gong of a cable car while passing a crossing as required by a city ordinance, by the fact that the ordinance in terms requires the persons immediately in charge of the car, and not the company, to give the warning. Failure. to ring the gong upon a cable car while pass- ing a crossing is not excused by the fact that the grip- man's hands were otherwise necessarily engaged, and that the conductor was temporarily absent from his post. A person crossing a cable street railway track at a street corner on a dark and foggy night, was not, as a matter of law, guilty of negligence contributing to his being struck by a car passing the intersection of the street without the warning required by ordinance, where a car going the other way somewhat obstructs the view, and he heard no warning from other persons, although the car which struck him had a headlight, and bystanders shouted to him to get out of the way. (Supreme Court of California. Driscoll vs. Market Street Cable R. Co. 32 Pacific Reporter 5 91.) Passenger Carried by Destination — Alighting Before Car Has Stored. The alighting from a street car before it has come to a stop, by a passenger who has been carried by her STREET RAILWAY LAW. 237 destination through the conductor's carelessness, cannot, as a matter of law, be declared negligence, regardless of attending circumstances, such as the speed of the car and the conduct of the conductor. (Missouri Court of Appeals. Duncan vs. Wyatt Park R. Co. 48 Missouri Appellate Reports 659.) 2$ STREET RAILWAY LAW. Franchise to Occupy Entire Street with Tracks. Where a street 5s occupied by two street railway tracks and numerous poles and wires, injunction will issue at suit of abutting property own- ers, against the construction of a third track and additional poles, which would create unnecessary interference with the ordinary uses of the street, although such construction has been authorized by the city council. The court said : According to the evidence, as appears from the record of this case, Second South street is one of the principal business streets*running east and west, and at the date of the granting of the franchise to the defendant, and of the trial of the cause, there were in operation upon that street two railroad tracks, which were located in the center of the street with a line of poles between them. There were also many electric light, telegraph and telephone poles placed in line on each side of the street about four feet from the sidewalk, and on these poles were stretched numerous electric wires. The two tracks in operation were constructed with T-rails, which project several inches above the sur- face of the street, and render the crossing of the tracks with vehicles difficult and dangerous, the street not being paved. The appellant proposed to construct its track in a similar way on the north side of the present track, and to erect additional poles, which would still further obstruct the ordinary travel and render the respondent's property less accessible for business purposes. The tracks already upon said street afford ample facilities to run all the cars necessary for public convenience, and the construction of the third track would be a serious impedi- ment to the ordinary mode of travel, as it would not leave sufficient space between the outside rails and the gutter for vehicles to pass each other with safety. Where the track privileges of one company on a city street are suffi- cient for the business of two or more companies, they STRBET RAILWAY LAW. 239 should all be required to use them in common. The con- struction of an additional track, under the circumstances of this case, would be an unnecessary obstruction to and interference with the ordinary use of the street, and a special injury to the property rights of the abutters, and on proper application a Court of Chancery may grant injunctive relief. In such a case an abutting owner need not stand by and see his property injured without having any means of redress. (Supreme Court of Utah. Dooley Block vs. Salt Lake Rapid Transit Company. 8 Notes of Cases, 60.) Passenger Carried Beyond Destination — Negligence of Street Car Comfany — Injury by Being Pushed from Car by Other Passengers. The argument for appellee proceeds upon the assump- tion that the wrongful act of appellant, in carrying the appellee beyond his place of destination, was the efficient cause of the injury, without which it could not have hap- pened; that appellant had knowledge of the danger into which appellee was being carried by being taken beyond Emerald avenue, and was liable, no matter what other causes operated to produce the injury. Undoubtedly, if appellant knew that if it carried appellee past Emerald avenue, he would be thrown off and injured, and had such knowledge in time to have prevented it, its liability would not be questioned. The failure to stop the car at Emer- ald avenue had in itself no tendency to throw appellee off the car; the accident was the direct result of the sudden pressure by some of the passengers to get off of the car as it approached Halsted street, and not because the car had passed Emerald avenue without stopping, or because of any other negligence, if it be negligence, by the appellant, than that it permitted the car to become 24O STREET RAILWAY LAW. crowded with passengers. And whatever fault appellant was guilty of in permitting the crowd, appellee, knowing the crowd was there, shared in it, and the fault being mutual, he cannot complain if injury resulted because of a sudden movement of one or more of the passengers, for no cause for which the appellant was directly respon- sible. (Illinois Appellate Court. Chicago City Railway Company vs. Considine. 33 Legal Adviser 249). Injury to Child — Driver Starting Car — Notice of Intention to Become Passenger. A street railway company is not liable for injuries to a boy of seven years, by the starting of its car while he was attempting to get upon the front platform as a pas- senger, where no notice was given to the employes in charge of the car, and they had no knowledge of his intention and attempt to become a passenger; the driver is under no duty to look for passengers while engaged in attending to his horses. (Supreme Court of Pennsylvania. Pitcher vs. Peoples Street Railway Company. 154 Pennsylvania Reports 56o). Person Thrown from Car Rounding Curve — Standing on Platform — Crowded Condition of Car. A street railway company is liable for injuries to a passenger, who remains standing upon the platform with the knowledge of the conductor, because the car is so crowded that he cannot find a seat inside, and is thrown off while the car is rounding a curve, by the negligence of the persons in charge of the car in failing to check or slacken speed in approaching the curve. (Supreme Court of Minnesota. Brusch vs. St. Paul City Railroad Company. 55 Northwestern Reporter 57). STREET RAILWAY LAW. 24I City Employee working in Street — Injury by -passing Car — Failure to give Warning. An employe of the city engaged in laying water pipes under the tracks of a street railway is lawfully in the trench dug for that purpose, since the consent of the city to the occupancy of a portion of the street by a railway company does not destroy its right to repair or construct public works. A street railway company is liable for injuries to a laborer engaged in laying city water pipes under its tracks by the moving of a car across the ditch without notice to the men at work in it, where on all previous occasions notice has been given and such notice was a reasonable and prudent act under the circumstances. (Supreme Court of Pennsylvania. Owens vs. People's Passenger Railroad Company. 26 Atlantic Reporter, 748). Defective Appliances — Injury by giving way of Handle on Car — Complaint failing to show Relation of Carrier and Passenger. In an action against a railroad company for injuries to the plaintiff by the giving way of a handle on a car, which plaintiff took hold of while entering it, a complaint which fails to allege that it was at a station provided for passengers, or at a place where it was usual or customary to receive passengers, or that plaintiff was invited or knowingly permitted to attempt to board the car, or that he was in any way accepted as a passenger, fails to show any relation existing between the parties devolving on defendant the duty towards plaintiff of maintaining its car in repair. (Supreme Court of Alabama. North Birmingham Street Railroad Company vs. Liddicoat. 13 Southern Reporter, 18.) 242 STREET RAILWAY LAW. Street Railway as Common Carrier — Care required- — Burden of Proof as to Negligence in case of Personal Injury. Street railway companies are common carriers of pas- sengers and are liable, as other common carriers, upon common law principles. Common carriers, for the pro- tection of their passengers, are bound to the exercise of more than ordinary care; they are bound to exercise extraordinary care and the utmost skill, diligence and human foresight, and are liable for the slightest negli- gence. Where a passenger, without negligence on his part, is injured by the derailment of the car in which he is travel- ing, the carrier, to overcome the presumption of negli- gence caused by such derailment, must show that the accident was produced by causes wholly beyond its con- trol and that it has not been guilty of the slightest negli- gence contributing thereto, and that by the exercise of the utmost human care, diligence and foresight the casualty could not have been prevented. (Supreme Court of Nebraska. Spellman vs. Lincoln Rapid Transit Company. 20 Lawyers' Reports Anno- tated, 316.) Grading Street — Petition by Property Owners — Action against Street Railway. Petitioning a street railway company to grade the street through which its tracks run, to "established grade" will deprive abutting property owners of the right to recover for injuries to their property by being left below the street grade if the established grade is followed. (Missouri Court of Appeals. Pratt vs. Home Street Railway Company. 49 Missouri App. Reports 63.) STREET RAILWAY LAW. 243 Driving on Track in Front of Car — Care Required of Persons in Control of Car. Persons getting in their carriage upon coming out of a place of amusement, knowing that there is a large crowd, many of whom will go upon street cars which are in posi- tion waiting to receive them, are recklessly careless in leaving a safe unobstructed way and crossing over onto a .track which they know is about to be used by the cars, without looking back or taking any precaution for their safety. A street railway is liable for injuries to persons in a carriage who have, by their negligence, placed them- selves in a perilous position on the track, where the employes in control of the car could have avoided the collision with the means at their command, after they saw or could by the exercise of ordinary care have seen the peril. (Kentucky Superior Court. Central Passenger Rail- road Co. vs. Chatterson. 14 Kentucky Law Reporter 663). Injury by Starting of Car — Signal Given by Unau- thorized Person — Liability of Company. The fact that the signal for starting a street railway train, causing one who is attempting to get on to be thrown down and injured, was given by an unauthorized person, will not relieve the company from liability, if the conductor by due diligence could have prevented the moving of the car and avoided the injury by countermand- ing the signal, or otherwise, although he did not know that anyone was attempting to get on the car. (Supreme Court of Illinois. North Chicago Street Railway Company vs. Cook. 33 N* -theastern Reporter 758.) 244 STREET RAILWAY LAW. Car Injuring Person who has Fallen in Street — Ver- dict Contrary to Evidence — Contributory Negligence. In an action against a street car company for personal injuries, plaintiff alone testified that while riding on horse- back his horse fell, throwing him to the ground some 150 feet ahead of the car, and while lying there the wheel of the car ran over his arm. Four disinterested witnesses who were riding on the car in a position to see the acci- dent, testified that the horse fell by the side of the car. Held, that it was an abuse of discretion not to grant a motion to set aside the verdict as being contrary to the evidence. In such case, the defendant having alleged contributory negligence, that question should have been submitted to the jury, even on plaintiff's theory of the facts ; and it was error to charge the jury to the effect that there was no claim on the part of defendant that plaintiff was guilty of negligence, and that if plaintiff's version was correct,' the only question to determine was whether defendant's driver was guilty of negligence. (Supreme Court of Wisconsin. McCoy vs. Milwau- kee Street Railway Company. 52 Northwestern Reporter 92.) Reasonable Regulations — Passenger Refusing to Comply — Payment of Fare on Entering Car. In an action against a street car company for ejecting a passenger, it appeared that defendant's rules required passengers to pay their fare on entering the car; that after plaintiff had ridden about one and one-half blocks without paying fare, his attention was called to the rule, and he was requested by the driver to pay; that plaintiff answered that the driver was in "too much of a hurry," and that he (plaintiff) would "take a little time on that"; STREET RAILWAY LAW, 245 that plaintiff was then ordered to get off the car; that the driver undertook to eject plaintiff, and was himself put out by plaintiff; that the driver then seized an iron bar, and again ordered plaintiff to leave the car, which he did without being struck or injured in any way. Held, That plaintiff could not recover, as his conduct amounted to a refusal to comply with a reasonable rule of defendant, and justified his removal. (Supreme Court of California. Nye vs. Marysville & Y. C. St. R. Co. 32 Pacific Reporter 530). 246 STREET RAILWAY LAV/. Liability of Street Railway Company for Negligence of Lessee. Where a street railway company, organized under general laws, lease., its road to an individual, without legislative authority, it remains liable to a passenger for injuries caused by the negligence of the lessee. Mayham, P. J. — This action was prosecuted for an injury claimed to have been suffered by the plaintiff by reason of defendant's negligence in the management of its cars. The complaint alleges that the defendant was a domestic corporation, owning and operating a horse rail- road for the carriage of passengers and freight between the villages of Johnstown and Gloversville ; that the plain- tiff, at the time of the alleged injury, was a passenger on the cars of defendant, and had paid the usual charges for transportation; and that by the carelessness and negli- gence of the defendant, its servants and agents, without any negligence on her part, she was severely injured. The answer alleges that the horse railroad owned by the defendant was, at the time of the commencement of the action, and for more than three years prior thereto had been, operated, managed and controlled solely by Henry Stoller and Michael R. Van Sickler as lessees, and that said lessees were solely and exclusively liable for damages by their own negligence or that of their servants or agents in operating said horse railroad. * * * * We think the evidence supported the verdict. The remaining question is whether the defendant, by its lease to Stoller and Van Sickler, can relieve itself from obligation to the traveling public for injuries inflicted by the negligent management of its road The case does not disclose that this road was leased with the consent of, or by any authority conferred upon it by the legislature ; STREET RAILWAY LAW. 247 and the lease was not executed to a railroad company. A railroad cannot lease its road and franchise to an indi- vidual, without the consent of the legislature, so as to relieve it from its obligation to the public. And where a lease is effected to an individual, the law seems to treat the lessee as the agent of the railroad company for the purpose of determining controversies between the public and said company. Abbott vs. Railroad Company, 80 N. Y., 27; Fisher vs. Railroad Company, 34 Hun. 433; Woodruff vs. Railway Company, 25 Hun. 246. From the authorities, it would seem to follow that if the plain- tiff was injured by the operation of railroad cars, or by the negligence of the person managing the same, although such person was employed by a lessee, such negligence would, in law, be the negligence of the rail- road company. The railroad company, a corporation organized under general laws, having leased its road without legislative authority, remained liable for injuries caused by negligence of those operating the road. This doctrine is not in conflict with the doctrine laid down in Woodruff vs. Railway Company; in that case the contro- versy did not arise between the public and the railway company, but was a dispute between the railway com- pany and the lessee, and the Court held that the parties to the lease were estopped, as against each other, from denying the validity of their contract. In Beveridge vs. Railroad Company, 112 N. Y. 1, the question did not arise between the public and the railroad company on a lease between it and an individual, but in that case one railroad company leased to another, as under the statute it might lawfully do. (Supreme Court of New York, Durfee vs. Johnstown, Gloversville & Kingsboro Horse Railroad Corripany, 24 New York Supplement 1016) 248 STREET RAILWAY LAW. Master and Servant — Injury to Conductor — Suuden Slipping of Defective Brake — Notice of Defect. Plaintiff was in the service of defendant as a conduc- tor on its street cable line, and prosecutes this action to recover for an injury which he claims to have received in applying a defective brake on a passenger coach. For the purpose of switching the train, consisting of a motor car and a passenger coach, the coach had been detached from the motor car and was running down a grade towards the end of the track. It became the plaintiff's duty to stop the car, and it was for that purpose that he applied the brake; the usual exertion being ineffectual, he put both hands on the handle, pressing also against the same with his breast, exerting his full strength; the handle suddenly yielded to the pressure, so that he was thrown forward with his breast against the brake handle. * * * The evidence was sufficient to support the con- clusion that there was a defect in the brake, of which the defendant had such notice that it should have been reme- died before the car was sent out again. Even though the precise nature of the defect was not clearly shown and may be somewhat conjectural, that does not forbid a recovery. It is to be conceded that the plaintiff knew that there was some defect in the brake, and that it was not in proper condition to be used on the steep hill where the lives of passengers would depend on its efficiency; but that he had any reason to suppose that any risk would be incurred by a person in the act of using the brake, cannot be taken as clearly established. It was for the jury to say whether in view of what knowledge he had, he should have anticipated that harm would result from using the brake. (Supreme Court of Minnesota. Newhart vs. St. Paul City Railway Co., 52 Northwestern Reporter 983.) STREET RAILWAY LAW. 249 Collision -with Vehicle at Crossing — Negligent Speed of Car — Contributory Negligence in Failing to Look for Approaching Car. Where a person driving a wagon, with curtains closed, attempts to cross a street railroad track without looking for a car at a point nearer than seventy-five yards from the crossing, and is struck by a car approach- ing him from behind he is guilty of such contributory negligence as will defeat his recovery, in the absence of wanton negligence on the part of the railroad com- pany. The fact that defendant, at a point outside of the city limits, was running its car at the rate of fifteen miles an hour, and did not give the signal of approach, is not such wanton negligence as will entitle plaintiff to recover (Supreme Court of Alabama. Highland Avenue & B. R. Company vs. Maddox. 13 Southern Reporter 615.) Street Railway — Steam Motive Power — Frightening Horse. The grounds of negligence charged to the transit com- pany by plaintiff were that it operated its street railway by running a steam engine on its track, through streets on which there was constant travel, and that on the day of the accident the transit company, negligently and care- lessly and without warning, ran the engine in the imme- diate vicinity of herself and horse, and so frightened the latter that he became unmanageable and upset the buggy and injured plaintiff. An examination of the charter of the transit company does not disclose any authority for propelling its street cars by steam, and it is doubtful whether any such authority was conferred by that instru- ment; and, if it was, the company's franchise would not excuse it from liability for injuries caused by its 2 SO STREET RAILWAY LAW. negligence, whether such negligence consisted in the mismanagement of its road and cars, or in the character of motive power employed. When one is placed, by the negligence of another, in a situation of peril, his attempt to escape danger, even by an act which is also dangerous, and from which injury results, is not contributory negligence such as will prevent him from recovering for any injury, if the attempt was one such as a person acting with ordinary prudence might make under the circumstances. (Supreme Court of Nebraska. Lincoln Rapid Tran- sit Company vs. Nichols. 55 Northwestern Reporter 872.) Elevated Railroad — Action Against, for Injunction — Waiver of Right of Eminent Domain. Action was brought by plaintiff to enjoin the operation of defendant's road in the street on which plaintiff's lot abuts, whereby plaintiff was deprived of his easements in such street. In this action defendant answered, noticed the case for trial, and appeared on the call of the calendar. Defendant afterward instituted a proceeding to condemn plaintiff's easements, and plaintiff moves for an injunction against the condemnation proceeding on the ground that defendant had waived its right to maintain such proceed- ing. The scope of this action does not impose upon the Court the duty to the plaintiff of fixing a sum as com- pensation, which the defendant may pay and avoid the operation of an injunction. The condemnation proceed- ing is not an act by defendant in violation of plaintiff's rights. The motion is denied. (Superior Court of New York City. Mead vs. New York Elevated R. Company. 24 New York Supple- ment 908.) STREET RAILWAY LAW. 2«j I Electric Railroad — Motorman Killed by "Bucking" of Car. Deceased was employed by defendant as a motoneer on one of its electric cars, and the accident was occa- sioned by the " bucking " of the car, (suddenly coming to a halt and as suddenly starting up), which threw him over the dashboard, and the car quickly ran over and killed him. On the merits we are satisfied that the evidence abundantly justified the jury in rinding that defendant corporation was guilty of negligence in causing this car to be used. It had frequently bucked before, a fact well known to those to whom it had intrusted its primary duty of seeing to the condition of its cars. There was also ample evidence to warrant the jury in finding that this bucking was caused by the old and worn out condi- tion of one of the electrical fields, and that no proper tests had been applied to ascertain the condition of these fields, and no proper care had been exercised in renewing and replacing such as had been worn out. The defend- ant was also bound to know that with a low dasher in front, the almost inevitable result of bucking would be to suddenly hurl the motoneer upon the ground in front of the car, and thus to greatly imperil his life. (Supreme Court of Minnesota. Beardsley vs. Minne- apolis Street R. Co. $6 Northwestern Reporter 176.) Passenger Standing- Against Car Door — Injury by Fall- ing from Car. A street railway passenger who, upon entering a " transfer " car used for a waiting room for passengers who are to be transferred from one line to another, care- lessly takes a position close to or against a plainly dis- cernible door, which is liable to be opened at any time, is guilt}- of contributory negligence and cannot recover for 2$2 STREET RAILWAY LAW. injuries sustained by falling out of the car because the door is suddenly opened, although the employe who opens it is also negligent in not observing her position and warning her of it and waiting for her to move. However, the company is liable for such injury if the passenger would not have been in that position had not the employe in charge of the car directed her to move from a safe place where she stood without warning her of the danger, and such danger was not apparent or known to her. (Supreme Court of Indiana. Prothero vs. Citizens' Street Railway Company. 33 Northeastern Reporter 765.) STREET RAILWAY LAW. 253 Electric Railway Crossing Steam Railway at Grade. An Act under which an electric railway was incorporated, authorizing it to cross at grade, any railroad operated by steam or otherwise, can- not be construed to deprive the State of its power to exercise police supervision, and prohibit a crossing which would evidently be danger- ous to public travel. In the opinion the court said : More than twenty years ago the necessity for special judicial control of corpora- tions, and especially railroads, assumed tangible form in the passage of the Act of June 19, 1871, entitled " An Act relating to legal proceedings by or against corpora- tions. The second section declares "when such legal proceedings relate to crossings of lines of railroad by other railroads, it shall be the duty of courts of equity of this commonwealth to ascertain and define by their decree the mode of such crossing, which will inflict the least practical injury upon the rights of the Company owning the road intended to be crossed, and if, in the judgment of such court, it is reasonably practical to avoid a grade crossing, they shall, by their process, prevent a crossing at grade." The manifest purpose of this is not merely to discourage grade crossings because of their danger to the public, as well as injury to the company whose road is crossed, but also to prevent them, whenever in the judgment of the court, it is reasonably practical to avoid such dangerous and injurious crossings. As an exercise of the police power of the State, the wisdom of the pro- vision has become more manifest from year to year as railroads multiply. It is claimed by defendant, however, that the 18th section of the Act of 1889, under which it is incorporated expressly authorizes it " to cross at grade, diagonally or transversely, any railroad operated by steam or other- wise, now or hereafter built." If, by the language thus 254 STREET RAILWAY LAW. employed, the Legislature intended, not only to barter away the police power of the State in regard to such grade crossings, but also to limit the jurisdiction of the Courts of Equity in relation thereto, then indeed the learned Judge fitly characterized such legislation as " exceedingly vicious " ; but we cannot think any such construction as that should be given to the 18th section of the Act. It is a well-recognized principle of legisla- tion that grants of franchises are made and accepted in subordination to the police power of the State. We are therefore warranted in concluding that a surrender of that power was neither effected nor intended to be made by the Act under consideration. Nor do we think that the jurisdiction conferred by the second section of (he Act of 1 87 1 was in any manner restricted or limited by the Act of 1889. As we have seen, the latter is entitled '' An Act to provide for the incorporation and govern- ment of street railway companies in this Commonwealth." This title conveys not the slightest intimation of any intention to interfere with the jurisdiction heretofore conferred on Courts of Equity relating to railroad cross- ings at grade. We have no doubt but that electric rail- ways are within the purview of the Act of 1871. They are certainly within the mischief for which the second section provides a remedy. (Supreme Court of Pennsylvania. Pennsylvania Rail- road Company vs. Braddock Electric R. Co. 55 Ameri- can and English Railroad Cases, 1.) (Note. — See also the case of Lake Roland El. R. Co. v. Mayor of Baltimore, 8 Note6 of Cases 43. 3 Street Railway Review 494 and note.) Contributory Negligence — Fireman on Ladder-truck — Collision with Street Car. The plaintiff, a fireman, was injured while riding to a STREET RAILWAY LAV. 255 fire on a ladder-truck, by a collision with a horse car of the defendant company. On each side of the truck was a running-board extending between the wheels, and above this another running-board. On first starting out plaintiff was standing on the running-board, but as he had not fully equipped himself before starting, he shortly proceeded to complete the equipment by buckling around his body a " dogman's belt." For the purpose of holding on while doing this he lifted his left leg from the running board, and placed it between the rounds of the upper- most ladders. The ladders, which projected several feet in front of the body of the truck, struck the corner of the car and were forced suddenly back, cutting plaintiff's leg off at the knee. There was evidence that the fire- men had not time to dress before starting for a fire, but did so while on the way. The defendant asked the court to charge the jury " As the plaintiff was riding on the ladder- truck, with his left leg down between the ladder-rounds while the truck was going to the fire, he was not in the exercise of due care, and cannot recover." This the court refused. He could not be expected to use the same degree of care as might properly be required of one who had no special duty to perform as he had. Considering his duty and the exigency of the occasion, we cannot say that he was not in the exercise of due care. (Massachusetts Supreme Judicial Court. Magee vs. West End St. R. Co. 23 Northeastern Reporter 1102.) City Ordinance — Care to be Exercised by Conductor and Driver of Car. Rev. Ord. St. Louis 1887, art. 6, sec. 1246, sub. 4, providing that "the conductor and driver of each car shall keep a vigilant watch for all vehicles and persons 256 STREET RAILWAY LAW. on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles the cars shall be stopped in the short- est time and space possible," is valid, since, under the charter of the City, franchises are granted to street rail- way companies on condition that they submit to all ordi- nances regulating them; and it is competent, therefore, for the city, in consideration of the franchise granted, to impose by ordinance the duty of exercising a high degree of care, and their failure to observe the ordinance renders them liable to the person injured, notwithstand- ing a fine is also imposed for such failure. (Supreme Court of Missouri. Fath v. Tower Grove and L. R. Co. 16 Southwestern Reporter 913.) Dray Stopped on Side of Street — Collision with Street Car — Miscalculation as to Room to Pass. In an action by the driver of a dray against a street railway company for personal injuries, it appeared that plaintiff stopped his dray at what he thought was a safe distance from the car-track, and was putting a blanket on his horse, when he was struck by defendant's car. The driver of the car, who was driving " a fair gait," thought he had room enough to pass plaintiff and his dray. Held, that the accident being caused merely by miscal- culation as to distance on the part of both plaintiff and the car-driver, a non-suit was properly entered. (Supreme Court of Pennsylvania. Patton vs. Phila- delphia Traction Co. 20 Atlantic Reporter 682.) Injury to Person Driving Across Track — Driver not Watching Track — Contributory Negligence. While plaintiff was attempting to drive across a street- car track, her carriage was struck by defendant's car, STTREET RAILWAY LAW. 2$$ which was then going down grade. Witnesses testified that the car-driver had time to stop the car after plaintiff drove on the track had he not looked down a cross street; but it appeared that when he crossed this street, no one was on the track or offering to cross in front of him, and it was not shown that his attention was unnecessarily, or for an unreasonable time, withdrawn from the track, and, the accident occurred despite his efforts to stop, though he applied the brakes at once. Held, that there was not sufficient evidence of negligence on the part of the de- fendant to warrant submission of that question to the jury. Plaintiff knew that a car was coming and was near having heard bells, but could not see it until she turned her horse on the track ; and she testified that she then thought there was time to cross. The car was moving at the usual rate on a down grade, and plaintiff's horse was moving at a slow walk. Held, that plaintiff was guilty of contributory negligence barring recovery. (Supreme Court of Pennsylvania. Citizens' Pass. R. Co. vs. Thomas. 19 Atlantic Reporter, 286.) Elevated Railroad — Station Projecting into Street — Action by Abutting Owner. Though an elevated railroad company constructs a station projecting into a side street, infringing on the public right therein, an abutting owner, in his capacity as a citizen only, cannot maintain an equitable action for its removal, nor can he maintain it as such abutting owner where it does not appear that he owns the soil occupied by the station, nor that he has sustained any substantial injury, by the encroachment, to any right appurtenant to his premises. (Court of Appeals, New York. Adler .v. Metropoli- tan El. R. Co. 33 Northeastern Reporter, 935.) ^3° STREET RAIL. WAx , Assignee of Street Railway Company — Enforcemtn* v Duties to the Public — Mandamus. The performance of the duties which a street railway company owes to the public, to operate its lines in accordance with the provisions of a City ordinance under which its road was constructed, may be enforced by mandamus. The City of Potwin Place granted to the T. R. T. Ry. Co. the right to construct a street railway on certain streets, under an ordinance requiring a stated car service to be furnished by that company . Said company there- after executed and delivered to defendant a deed by its terms granting, assigning and conveying to the defendant all franchises, powers, privileges and immunities possessed \f)j it, and its line in plaintiff City. Defendant accepted said deed and operated said line for a time. Held, that the defendant thereby assumed the performance of the duties towards the public, which before rested on the grantor. The granting of a writ of mandamus rests largely in the sound discretion of the court, and where it is asked to enforce the performance of a duty to the public, the interests of all the people concerned will be regarded, and the writ will be so framed as will best preserve and enforce the rights of all parties. (Supreme Court of Kansas. City of Potwin Place v. Topeka &c. R. Co. 33 Pacific Reporter, 309.) Injury to Person in Elevated Railway Station — Evidence. The mere fact that the rubber covering on the stairs of defendant's elevated railroad station was out of repair and caused plaintiff to fall without anv evidence that the STREET RAILWAY LAW. 259 * detective condition of the stair existed before the acci- dent, is not sufficient to charge defendant with want of ordinary care in respect to the stairs. In an action for injuries caused by falling down the stairs of defendant's elevated railroad station, plaintiff's evidence merely showed that she caught her heel on one of the steps and fell, and that after her fall the rubber covering on one of the steps was observed to be loose ; but no witnesses saw her trip on the rubber, and there was no evidence as to its condition before the accident. Held, that the complaint would be dismissed for failure to prove that defendant was negligent. (Court of Common Pleas of New York City. Millier vs. Manhattan R. Co. 25 New York Supplement 753.) 26o STREET RAILWAY LAW. Street Car Passenger Injured at Railroad Crossing. A passenger on a street car, which has stopped at a railroad crossing to permit a locomotive to pass, is not bound to be on the lookout, when the car starts, for another approaching engine. The following is from the opinion: — The Court instructed the jury : " If Michael O'Toole upon that street car could have seen the engine and did not undertake to " see it, and did not exercise reasonable care for the pur- pose of ascertaining whether they could proceed across the railway track in safety, then he was guilty of con- tributory negligence ; and if, by looking up the railroad at that time, he could have learned whether an engine was or was not approaching, and could then have gotten off the car, if he discovered an engine approaching, and did not do that, then he was guilty of contributory negli- gence and cannot recover." Then further on in this instruction : " Had the plaintiff been walking in the street, the fact that the gates were not lowered would not be an invitation to him to cross the railroad in violation of the rule of law that he shall stop, look, and listen before crossing a railroad; and that rule is not taken away because the plaintiff happened to be in a street car." We find no evidence which warranted this instruction. Plaintiff was a passenger of the street car company which had contracted to carry him safely. He had the right to presume that it would exercise all care required in this undertaking. When the car approached the crossing, it stopped; he was in no danger then, and had no reason to apprehend any. When it started, he had the right to believe that it did so because the crossing was clear. Running a distance of about seventy-five feet, the collision occurred. In the very few seconds which were neces- sary to accomplish this distance, the Court, in substance, instructed the jury that it was plaintiff's duty to be on STREET RAILWAY LAW. 26l the lookout to learn if the railroad track could be safely crossed, and if by so doing he could have seen the approaching engine, ordinary care required him to jump off. To impose such a duty upon a passenger under these circumstances, is going much further than any court has yet gone. The instruction, in substance, that ordinary care required plaintiff to perform the duties of conductor and motor-man; that practically he was to exercise the same care as if he had been driving his own horse — "stop, look, and listen" — was erroneous, and calculated to mislead the jury. The cases of Township of Crescent vs. Anderson, 114 Pa. St. 643, and Dean vs. R. Co., 129 Pa. St. 514, cited and relied on by appellee as sustaining the instruction complained of, really recognize the opposite doctrine. Both are cases where the plaintiff, when injured was riding in a private vehicle driven by another, and both were injured by the negligence of the driver and a third party — the defendant. In both, the decision was put on the ground that the negligence of the driver was appar- ent, and he was to some extent under the direction or control of the party injured. There was no attempt, by remonstrance or otherwise, by the party injured, to restrain the negligence of the driver. The negligence of the driver was not in either case imputed to an innocent plaintiff, but the plaintiff was held to have participated in the negligence which caused the accident. Borough of Carlisle vs. Bisbane, 113 Pa. St. 544, is to the same effect; and the decision is expressly put upon the ground that, although the conveyance was a private one, the injured party did not to any degree participate in the alleged negligence of the driver. The plaintiff here was a passenger in a public conveyance; he conformed to the rules of the company; he relied on the vigilance and care 262 STREET RAILWAY LAW. of those in charge of the car, as his contract gave him the right to do. There was upon him no duty of moving the car with caution at dangerous crossings; no duty to watch for possible collisions and jumping off in apprehen- sion of them. (Supreme Court of Pennsylvania. O'Toole vs. Pitts- burg & Lake Erie R. Co., 27 Atlantic Reporter 737.) (Note — Imputable contributory negligence which will bar the plaintiff from recovery, exists when the plaintiff, although not charge- able with personal negligence, has been, by the negligence of a person in privity with him, and with whose fault he is chargeable, exposed to the injury which he received through the negligence of the defendant. It is now the rule in the United States Courts, in England and in most of the etates of the United States, that the contributory negligence of a carrier is not attributable to a passenger. But in some of the states, the doctrine that it is imputable, and will bar a recovery has been established. Yet it would seem that the recent repudiation of the doctrine of Thoro- good vs. Bryan by the Supreme Court of the United States, and the dis- tinct manner in which that case has now been overruled in England, indicate an entire abandonment of the doctrine that the contributory neg- ligence of a carrier should be imputed to a passenger. 5 American and English Encyclopaedia of Law 82 et 6eq. From a footnote to same, the following is taken : — "In Thorogood vs. Bryan 8 C. B. 115, it was held that a passenger in an omnibus, injured by the negligence of the driver of another omnibus, had no action against the latter, because the driver of the omnibus carrying the passenger, by his negligence, contributed to the injury. In Bennett vs. New Jersey R. Co., 36 N. J. L. 225, it was held that the driver of a horse car was not the agent of the passenger so as to render the passenger chargeable for the driver's negligence. In speaking of the 'identification' of a passenger in the omnibus with the driver, mentioned in Thorogood vs. Bryan, the Court said : " Such identification could result only in one way, that is, by considering such driver the servant of the passen- ger. To hold that the conductor of a street car or a railroad train is the agent of the numerous passengers who may chance to be in it, would be a pure fiction. It is obvious, in a suit against the proprietor of the car in which he was a passenger, there would be no recovery if the driver or conductor of such car is to be regarded as the servant of the passenger. And so, on the same ground, each passenger would be liable to every person injured by the carelessness of such driver or conductor, because, if the negligence of such agent is to be attributed to the passenger for one purpose, it would be entirely arbitrary to say that he is not to be affected by it for other purposes.") STREET RAILWAY LAW. 263 Injury to Child — Care Required of Motor man — Ques- tion for Jury. A boy less than five years old, on seeing an electric train coming along the street, ran from the side-walk with extended arms. The motorman saw him, and shouted and motioned to him to go back. The child, however, continued to run, and, catching hold of the side netting of the rear car, was thrown down and injured. Held, that the question whether the motor-man should have stopped the cars, in view of the tender age of the child and his apparent intention to lay hold of the car, should have been submitted to the jury. (Supreme Court of Minnesota. Mason vs. Minne- apolis St. R. Co. 55 Northwestern Reporter 1122.) Rebuilding Street Railway — Municipal Control of Streets. Under the charter of the city of Trenton, giving the city council authority to prescribe the manner in which corporations shall exercise any privilege granted them in the use of any street, or in the digging up of same, a street railway company may be enjoined from rebuilding its road without the consent of the Board of Public Works of the city, which has succeeded to the powers of the council. (New Jersey Court of Chancery. City of Trenton vs. Trenton Passenger R. Co. 27 Atlantic Reporter 483.) City Ordinances — Contracts — Interference with Fran- chise Granted' — "Jurisdiction of Federal Court. City ordinances made in pursuance of law and granting to a corporation the right to build and operate street rail- way lines in the city, after acceptance by the corporation and expenditure of large sums of money on the faith thereof, constitute a contract protected by the Constitu- 264 STREET RAILWAY LAW. tion of the United States forbidding states to make any law impairing the obligation of contracts. Act of Indiana, March 6, 1891, conferred upon the city of Indianapolis the power by contract, when approved by ordinance of its common council, to grant franchises to street car companies. Held, that the exercise of this power by the Board of Public Works with the approval, by ordinance, of the common council, was a law of the state within the meaning of the Federal Constitution. A Federal Court has jurisdiction of a bill in equity alleging that complainant has a valid contract with a city conferring upon complainant the privilege of laying tracks and operating street railway lines on all the streets of the city, and that the contract provides that the city shall not confer upon any person or corporation any priv- ilege which will conflict with the rights granted to com- plainant; and alleging further that the city has granted the right to lay tracks and to operate street railroads on certain streets, to respondent, and that respondent cannot do so without interfering with and substantially destroy- ing the complainant's lines, and imparing the privileges before granted to complainant. (United- States Circuit Court, District of Indiana. Citizens Street R. Co. vs. City R. Co. 56 Federal Reporter 746.) Railway in Street — Invalid Ordinance — Expiration of Legal Existence of Company. The city of Detroit passed an invalid ordinance to extend the right of a corporation to own and operate a street railway beyond the time to which the life of the corporation was by law limited. The grantee assigned all its property and franchises to a second corporation. Thereafter an ordinance was passed fixing the time STREET RAILWAY LAW. 265 beyond which the tracks should not remain in the streets at the time at which the life of the grantee corporation would expire. Held, that the continuance of the tracks in the streets after that day was a public nuisance which a Court of Equity would abate. The fact that such extension ordinance was accepted and quietly acquiesced in by both parties for ten years during the term of the original grant, and that the corpo- ration expended large sums of money on the faith thereof, does not estop the city from denying the validity of the extension after the expiration of the original grant, as against the grantee corporation, although it might be estopped as against the assignee thereof by its dealings directly with such assignee, if such assignee was a cor- poration whose life extended beyond the period of the extending grant. (United States Circuit Court, District of Michigan, City of Detroit vs. Detroit City Railway Company. 56 Fed- eral Reporter 867.) Connecting Lines — Coupon Tickets — Fragment of Coupon — Refusal of Conductor to Accept. A ticket for a continuous ride over the whole length of a street railway and a connecting line, was of a pecu- liar color and print and was composed of two coupons, the upper of which was for use on the connecting line and gave the names of its termini below and the names of both lines above. Held, that a conductor of the con- necting line was bound to accept for passage an upper fragment of the upper coupon which gave the names of the lines, on the assumption that the conductor of the other line carelessly tore off the part giving the termini in taking the lower coupon. (Supreme Court of Michigan. Rouser vs. North Park Street Railway Co. 56 Northwestern Reporter 937.) 266 STREET RAILWAY LAW. Negligence — Car Obstructing Cross Street — Injury to Vehicle. In an action against a street railway company for dam- age to plaintiff's carriage, it appeared that plaintiff, an undertaker, occupied his carriage in front of a funeral procession; that he arrived at a street crossing about the time that defendant's car reached said crossing; that the car suddenly stopped directly across the street on which the procession was moving, and compelled plaintiff to stop suddenly within five feet of the car; that all the car- riages in the rear were thus caused to stop suddenly; and that the pole of the first of such carriages came in contact with plaintiff's carriage, breaking in the panels. Held, that the stopping of the car was the proximate cause of the damage to plaintiff's carriage. Defendant's negligence was sufficiently proved by it conceding that it obstructed the street in violation of a penal ordinance of the city. (Supreme Court of Wisconsin, Mueller vs. Milwaukee Street Railway Company. 56 Northwestern Reporter 9I4-) Reasonableness of City Ordinance Regulating Speed — Circumstances of Locality — Questions for Court and Jury. The reasonableness or unreasonableness of a city ordi- nance regulating the speed of engines or cars on the streets, is a question of law for the Court, and is not a question for the jury, unless it depends upon the existence of particular facts, which are disputed. Such an ordinance may be reasonable as applied to one locality, and unreas- onable as applied to another. Although it may be reas- onable as to populous parts of a city, it may not be so with reference to uninhabited districts near the corporate STREET RAILWAY LAW. 26*7 limits. If Jie nature of the locality is a matter of dispute, the Court should furnish the jury with the test by which the reasonableness of the ordinance, as applied to the particular locality, is to be determined ; and it would be for the jury to say whether or not the ordinance was reasonable and applicable, according as they might think these conditions to exist or not, In the present case the Court charged that it was for the jury to decide upon the validity of the ordinance; yet no issue of fact had arisen which would require the submission to them of the ques- tion of its reasonableness in its application to the locality in which the injury took place. This we hold to be error. (Supreme Court of Georgia, Metropolitan Street Rail- way Company vs. Johnson, 16 Southeastern Reporter 49.) 268 STREET RAILWAY LAW. Agent Employing Physician for Injured Person. Evidence that an agent of a street railway company was authorized by it to see that injured persons were taken where medical aid could be given, justifies the conclusion that the agent was authorized to employ medical aid in such cases. In rendering the opinion the Court said : While a boy was getting off one of defendant's street cars, his arm was broken. He was taken by an agent or servant of defendant, one Shaw, to the plaintiff's office, he being a physician and surgeon. He performed the necessary surgical services, treating the boy until recovery. By this action he seeks to recover from the defendant for such services. The evidence tended to show that, when Shaw took the boy to the plaintiff's office, he requested the plaintiff to attend to the case, and assured him that the defendant would be responsible. The question is pre- sented as to Shaw's authority to thus bind the defendant. He appears to have been an "inspector" whose general duties were to supervise the conduct of other employes in the car service, he acting as their superior. If no more than this had been shown, perhaps it could not have been inferred that he had authority from the defendant to em- ploy a surgeon to treat an injured passenger; but it was shown that the defendant has instructed Shaw, in case of accidents, "to see that those injured were taken some- where where medical aid could be given", and that he took this boy to the plaintiff pursuant to such instructions. This instruction may well be regarded as contemplating •the specified action on the part of Shaw, of his own voli- tion and without any request by the persons injured, and so he appears to have acted in the case under consideration. Neither the boy, nor anyone in his behalf, appears to have made any request or to have exercised any choice or voli- tion in the matter. It may be inferred from the evidence Street railway Law. 269 that Shaw, acting upon the defendant's general instruc- tion as above stated, took the boy to this surgeon selected by himself, in order that the broken arm might be properly treated. From the evidence already referred to as to Shaw's authority in such cases, it might reasonably be con- sidered, and so the Justice may be supposed to have viewed the case, that Shaw's instructions did not contemplate, or mean merely that, he should remove injured persons to such a place that medical aid could be there bestowed, if a physician or surgeon should come there by chance, or in response to the request or call of any person ; but rather that the meaning of his instructions was to place such persons under proper medical or surgical treat- ment — to see that they should receive such treatment. So construing the evidence, it went to show that Shaw's authority was such that, the defendant became chargeable upon his employment of the plaintiff in behalf of the de- fendant. Hence it is not necessary to consider the subject of ratification. (Supreme Court of Minnesota. Hanscom vs. Minne- apolis Street R. Co. 20 Lawyers' Reports Annotated 6950 Injury to Passenger — Negligence of Driver — Trench Underneath Track. The employes of defendant had made an excavation between the rails and outside of them, to a depth of six inches. The defendant's driver, against the warning of those at work upon the trench, drove on a trot into this trench, and the front wheels of the car, in which the plaintiff and other passengers were seated, dropped into the trench and injured the plaintiff by throwing him to the other side of the car, from the side upon which he was sitting at the time of the accident. There was no 270 STREET RAILWAY LAW. question but that the plaintiff was free from neligence. He was a passenger seated in the car reading and was injured without a moments notice of danger. The dig- ging of a trench so deep as to weaken the track, so that it would not hold the car and the disregard of warning by the defendant's driver that he must stop his car, is such conclusive proof of the defendants negligence that an assessment of damages was all that was left for the jury. (Supreme Court of New York. Daub vs. Yonkers R. Co. 69 Hun. 138.) Collision with Wagon Crossing Track — Negligence of Street-car Driver. The plaintiff, at the time he was injured, was the driver of a beer wagon. His team were fairly heavy horses weighing about 1,300 pounds each. The wagon and its contents weighed over two tons. The plaintiff drove across Third avenue, having previously looked up and down for cars and seen none. He crossed safely the south-bound track, and his horses crossed to the north- bound track and were upon the same when, upon looking southward, he saw a car coming up and distant about 60 or 80 feet. He signalled its driver, who apparently would not or did not see him, whipped up his horses, and had crossed north-bound track except the extreme rear part of his wagon, when his rear wheels were struck by the car. He was thrown out and severely injured. The plaintiff was not bound to wait until the defendant's car passed him. If as a careful prudent driver he deemed it safe to cross the track in question, he had a right to do so. The car companies have not exclusive right to the public highways along which their tracks run ; they are, through their drivers, required to exercise ordinary care STREET RAILWAY LAW. 27 1 and diligence in the management of their cars. The question whether or not plaintiff exercised his right to cross defendants tracks, in a careful or careless manner, was a question for the jury to determine. They evident- ly believed that he was not careless, and the testimony is more than sufficient to justify that finding. Concerning defendants negligence, that is also clearly established, for the testimony shows that the plaintiff's horses were actually upon the north track, when defendant's car was quite a long distance away. He, under the circumstances, had a right to go ahead, and it became defendants duty to stop its car until plaintiff had passed over its said tracks. Its failure to stop its car was negligence, unless it was impossible to do so. The question whether or not defendant was negligent, was also submitted to the jury, who determined it affirmatively, and that conclusion is also justifiable by the evidence herein. City Court of (New York City. Witzel vs. Third avenue R. Co., 23 New York Supplement 317). Street Railway Track on Bridge — County Rebuilding Bridge after Destruction by Flood — Demanding Com- -pensationfor use by Street Rail-way. The corporate limits of the City of Rome extended to the further bank of the river, and the authorities of Floyd County built a bridge across the river, connecting a street of the city with its continuation beyond the river, and placed the bridge under the control and management of the municipal authorities, who took charge of it and engaged to keep it in repair, but stipulated that in case of its destruction or from any other cause they should not be bound to rebuild it. Under the power contained in its charter, and with the consent of the corporate author- 2*72 STREET RAILWAY LAW'. ities, both of the County of Floyd and City of Rome, a street railroad company constructed its tracks across the bridge, and ran its cars backwards and forwards over it until the bridge was washed away by flood. The County replaced the old bridge by a new structure upon the same site. The company set about laying its, tracks over this new bridge, but the county authorities objected, unless the company would agree to pay for the privilege of us- ing the bridge, and upon refusal to do so, filed a bill to enjoin the use of it until the county should be compensa- ted therefor. Held, that the injunction was properly refused. The bridge forms a continuation of the street of the City across the river and is a part of such street. Where any part of a public street or highway is washed out or otherwise destroyed by any means, and the dam- age is repaired by a new structure upon the portion thus destroyed, or rendered unfit for use ; this does not give the County the right to exact additional compensation from a railroad company, which previously to the injury, used the street or highway with the assent of the munici- pality, where the railroad company proposes to make the same use of the street or highway after it has been repaired. (Supreme Court of Georgia. County of Floyd vs. Rome Street Railroad Company. 77 Ga. 614.) Construction of Street Railroad — Limitation of Time — What Amounts to Occupancy of Street, An ordinance of the City of Houston granted to plaint- iff the right to construct and operate a railway upon certain named streets. In the ordinance it was prescribed "so much of said railroad as extends * * shall be com- pleted within o^e year from date, and the balance of said STREET RAILWAY LAW. 2^3 road shall be completed within two years) And so much of said right ci way as may not be occupied by said Com- pany within said time, shall be considered as abandoned". Held, that under this clause, upon failure to occupy, etc., within the specified time, the railway company forfeited its rights beyond that so occupied and no further; i. e., the forfeiture did not extend to the completed work. The extent to which the streets were occupied by the railway company, was a fact for the jury. It was improper for the Court to charge the jury that such occupancy existed "if the ties were laid and rails placed and spiked thereon". The City, by its repealing ordinance, involved the right of the railway company to continue its work of con- struction in so much doubt, as to justify a discontinuance of the work until the effect of the ordinance could be ju- dicially determined ; and the time intervening between the passage of that ordinance and the final determination in favor of the right of the railway to continue its work should not be estimated against it. (Supreme Court of Texas. Mayor etc., of City of Houston vs. Houston Belt & Magnolia Park Railway Company. 84 Tex. 581.) Passenger Expulsion from Car — Tender of Fare — Reas- onable Amount. A passenger upon a street railroad is not bound to tender the exact fare, but must tender a reasonable sum and the carrier must accept such tender and furnish change to a reasonable amount. A tender of a five dollar gold piece by a street car passenger, who has no smaller change, is a tender of a reasonable sum; and the passen- ger who makes such tender cannot be ejected for refusal to pay his fare. But it does not follow that the passenger 274 STREET RAILWAY LAW may tender any sum, however large; if he should tender a hundred dollar bill, for example, it would be clear that the carrier would not be bound to furnish change. (Supreme Court of California. Barrett vs. Market Street Railway Company. 81 Cal. 296.) Wagon Turning Out of Track — Damage by Car Ap- ■proaching from Hear. The plaintiff drove a beer wagon along the track of the defendant on Third Avenue until he reached 33rd street, when he swung his wagon to the East in order to get out of the track and then turned to the Wet. The wagon was nearly off the track, when an electric car struck the hind wheel and overturned it. This case was properly submitted to the jury. It was the duty of plaintiff to turn off seasonably to avoid the car approaching from the rear, and while so doing the motorman was bound to exercise proper care to avoid a collision with the wagon. Whether the plaintiff was guilty of contributory negligence and whether the motor- man was negligent, were questions of fact for the jury. (City Court of Brooklyn. Witte vs. Brooklyn City R. Co. 23 N. Y. Sup. 1028.) STREET RAILWAY LAW 275 Care Required to Prevent Injury to Child. Where those in charge of a street railway car know that a child of tender years is in danger of injury, and they may, by the exercise of ordinary care, avoid injuring such child, and fail to exercise such care, the ques- tion of the negligence of those having the care of such child will be immaterial, and the railway company will be liable to the child. At the time of the accident the plaintiff was an infant not quite seventeen months old. He was struck and knocked down by one of appellant's horse cars. The child was so young as to be incapable of exercising care, and cannot be charged with negligence. The question in this case is whether the driver of the car could have avoided the injury to the plaintiff, after the latter had been discovered to be in a place of danger. Even though the plaintiff had come into such position through the negligence of those having him in charge, the defendant's servant, who had control of the car, was bound to use reasonable care in avoiding an injury to the plaintiff, if he saw, or, by the exercise of ordinary pru- dence, might have seen plaintiff's peril. Where the person in danger of being injured is an adult, the defendant will only be liable for wilful injury or gross negligence, on the ground that the adult will be presumed to have the capacity of making some effort to remove himself out of the way of the threatened peril. But in the case of a child of tender years, the defendant will be liable for the want of ordinary care. In the present case, the driver of the car admits that he saw the plaintiff upon the crossing before the accident occurred. One witness testifies that the child was on the track. Other testimony is to the effect that he was a short distance south of the track. The horses attached to the car were not walking, but going along in an ordi- nary trot. The driver says that when he first saw the 276 STREET RAILWAY LAW. child, it was facing south, with its back to the approaching car, and that, when he, standing on the front platform, was almost abreast of the child, it turned and ran into the car. The little babe was evidently startled by the noise of the car behind it and, turning, ran child-like into the danger instead of going away from it. Under all the cir- cumstances, it was for the jury to say whether he did or did not use ordinary care and prudence in trying to avert the injury after he discovered the danger. There was evidence enough to justify the court in submitting the question to the jury. The parents of the plaintiff were persons in humble circumstances. They had a small grocery, and lived in the same house where the store was kept. They tended the store themselves, and the father was engaged part of the time as a teamster. The baby was strapped in the baby-carriage and taken out for an airing by a brother fifteen years old. This brother had been in the habit of taking care of the child in this way, and, on the afternoon in question, had wheeled the carriage to the corner where the accident occurred. While he was looking at some house-movers or at the children playing near by, the baby slipped from the carriage and crept and toddled into the place of danger. If it be admitted that the older brother was negligent in suffering the child to get upon the street, such negli- gence on his part would not relieve the defendant from liability, if its servant could have avoided the injury after he discovered the danger. (Supreme Court of Illinois. Chicago West Division Railway Company vs. Ryan. 131 Ills. 474.) [Note. — Gavin vs. City of Chicago, 97 111. 66, wai a case of personal injury to a four-year old child by being caught in a swing bridge The Court sajd in the opinion : " The bridge, in the condition it was then in, STREET RAILWAY LAW. 277 was reasonably safe for all persons using the slightest care for their own safety. No duty rests on the City to make such bridges safe for child- ren to play around or upon, nor is it expected that parents will allow their children to occupy such dangerous places as playgrounds, and if they wander from their homes without the knowledge of their parents, and sustain injury at such places, it must be attributed to mere accident that no care which they are obliged to observe, on the part of municipal authorities, could prevent." City of Chicago vs. Starr, 42 111. 175, was an action for injuries to a child from the falling of a counter standing on the sidewalk. It was held that the City was guilty of slight negli- gence, but that the negligence of the parents in allowing the child to be at large on the streets was such as to preclude any recovery. In City of Chicago vs. Hesing, 83 111. 204, it was held to be gross negligence on the part of the City to leave a ditch filled with water, about five feet deep, in a public and frequented street, bordering on a sidewalk, without any guards to prevent children from falling into the same, and if a child is drowned by falling into the same, the City will be liable. In such case a failure on the part of the parents to keep a constant watch over the child will not be imputed as negligence. — Ed.] Street Railway Tracks — Unreasonable Burden on Street — Injunction — Rights of Abutting Property Owners. Municipal corporations, when empowered by the legis- lature to do so, may devote a reasonable portion of the street to the use of a street railway without making com- pensation to the abutting owners, since such is a proper use of the street. The legislature cannot devote the entire width of the street to railroad purposes unless compensation is first made to the abutting owner for the taking of his ease- ments, though there be no constitutional restriction on the legislature. Where a street is already incumbered with two street railway tracks, with a line of poles between, and in addi- tion, with many electric light, telegraph and telephone poles on both sides of the street, an injunction will issue in favor of abutting owners against the construction of a third track and additional poles, though authorized by the City Council, since such a track is a special injury to the 278 STREET RAILWAY LAW. property rights of the abutters; it appearing that the tracks already in the street afford ample facilities to run all cars necessary for public convenience. (Supreme Court of Utah. Dooly Block vs. Salt Lake Rapid Transit R. Co. 33 Pacific Reporter 229.) Collision with Wagon on Track — Injury to Passenger on Car. Where a motorman on a street car sees that a man driving a wagon along the track neither looks back nor pays any attention to the ringing of the bell, by increasing his speed or attempting to leave the track, it is his duty to bring his car under control, and the company is liable for injuries to a passenger if he continues until it is impossible for him to stop. In a action by a passenger against a street railway company for personal injuries, received by a car running into a wagon on the track, the fact that the negligence of the driver of the wagon contributed to the injury, is no defence. (Supreme Court of Washington. Sears vs. Consolidated St. R. Co., 33 Pac. 389.) Elevated Railroad — Falling Sparks — Injury to Person in Street — Proximate Cause. By an unlawful act of a railroad company, fire was thrown upon a horse passing under the structure, so as to make him unmanageable, and by the same act the driver was so injured that, smarting from his injuries, he did not exercise judgment and skill in guiding the horse, and the plaintiff walking along the street was run over by the horse and wagon. Held, that the railroad company was liable to the plaintiff; that the damage was not so remote as to preclude recovery, since the chain of causation was STREET RAILWAY LAW. 279 not broken ; that the mistake of judgment on the part of the driver, being caused by the defendant's unlawful act, could not be set up as an intervening cause. (New York Court of Appeals. Lowery vs. Manhattan R. Co., 99 N. Y. 158.) Removing 'Snowfrom Tracks — Making Street Dangerous — Injury by Upsetting of Sleigh. Where, in a suit against a street railway company, for personal injuries caused by the upsetting of a cutter while crossing defendant's track, the evidence showed that the snow which had fallen during the winter had been thrown up beside the track and trampled or beaten down so as to leave a depression at the track at a street crossing, of from six to ten inches or more, with a short slope down- ward; and that plaintiff's husband, who was driving, find- ing it necessary to cross the track at that point, turned the horse so as to cross as nearly as he could at right angles, but the sleigh, on making the descent, tipped over to the left and threw plaintiff out and injured her, these facts show negligence on the part of the company. (Supreme Court of Michigan. Laughlin vs. Street Railway Company of Grand Rapids, 62 Mich. 220.) Car Running Backwards on Incline — Injury to Plaintiff' 's Team. The horses attached to a street car were unable to pull it from a ferry boat up the steep and slippery incline, and stopped part way up, and the car was held by the brake. An extra horse was usually in readiness to help pull cars up the drop, but, on this occasion, there was none, and the driver, after endeavoring to procure other horses, unfastened the brake and started his horses, which were unable to pull up the car, and it began to run back. The driver applied the brake but could not stop the car, and 28o STREET RAILWAY LAW. it came upon the plaintiff's horses which were behind, attached to a wagon driven by plaintiff. The plaintiff had started from the boat as soon as the car was out of the way, his horses then being about ten feet back, and at the time the car began to run back, they were about twenty feet behind. The plaintiff backed as far as he could, but another team being behind him, he was unable to get out of the way, and the car came upon his horses and injured them. Held, that the case was properly submitted to the jury; there was evidence of due care on the part of the plaintiff; there was also strong evidence of the negligence of the defendant, both in omitting to have an additional horse to aid in pulling the car over the slope, as was usual under the circum- stances, and also in the action of the driver in lifting his brake so as to permit the car to slide backwards. It was this negligence which was the proximate cause of the accident. (Massachusetts Supreme Judicial Court, Cook v Metro- politan R. Co. 98 Mass. 361.) STREET RAILWAY LAW. 28 1 Injury by Car Belonging to One Company and Driven by Employe of Another Company. Where a party has been injured by collision with a car belonging to one company, drawn by horses belonging to another company, and the driver is in the employ of the latter company, the action is properly brought against the latter company. The defendants, the New York and Harlem Railroad Company, were owners of a railroad which ran through certain streets of New York City. There was an agree- ment between defendants and the New York and New Haven Railroad Company by which the cars of the New Haven Company were allowed to pass over defendants' track for a considerable distance in the city. A short track had been laid down in Canal street by the defend- ants for the use of the New Haven Company, and led from the track used by the defendants and the New Ha- ven Company in common to the New Haven Company's depot in Canal street. The contract also provided that the defendant should furnish horses and drivers to draw the cars of the New Haven Company from the depot in Canal street to Thirty-first street. Plaintiff was thrown out of his wagon and injured, in Canal street, by a car which belonged to the New Ha- ven Company; but the horses which drew it and the driver who was driving it were in the employ of the de- fendant, the Harlem Company. The sole question which arose was whether the Harlem Company or the New Haven Company were liable. The exact question has not arisen before in this coun- try. It has arisen, however, in several cases in England. The true rule is that which is stated in Quarman v. Burnett, 6 Mees. & Wells, 499. In that case the defend- ant was the owner of a carriage and had hired from a third person a driver and pair of horses to draw the sarne 282 STREET RAILWAY LAW. for a short time, and during this time the plaintiff's horse, through the carelessness of the driver, was injured. The question was whether the defendant, as owner of the car- riage, was liable. Parke, Baron, says: "Upon the prin- ciple '■quifacit -per alium facit for se\ that person is un- doubtedly liable who stands in the relation of master to the wrongdoer, who has selected him from the knowl- edge of or belief in his skill and care, who could remove him for misconduct, and whose orders the wrongdoer, as a servant, was bound to receive and obey." It is evi- dent that every word here said is applicable to the case before us. The Harlem Railroad Company was the owner of the horses which drew the car, and the driver was in their employ, paid by them, bound to receive and obey their orders, and liable to be dismissed by them at pleasure. The fact of negligence has not been in dispute at all, but we have simply to determine which of the com- panies is liable in damages to the plaintiff. We think the proper parties are sued in this case. The sole distinc- tion between this and the other English cases is that the conductor who came down in the New Haven cars might have had a supervision over the driver of the car, but it does not appear that in point of fact the conductor gave any directions in relation to these matters at all. We have, therefore, the case of the Harlem Company being the owners of the horses, and the driver being their ser- vant and in their immediate employ. Under these cir- cumstances it appears that the Harlem Company were alone liable. (New York Superior Court. Weyant v. New York & Harlem R. Co. 1 American Street Railway Decis- ions, 160,) Street railway Law. 283 Negligence in Running Electric Cars — Excessive Speed — Evidence — Liability of Company. This was an action brought by the appellee, who is a minor, by his next friend, against the appellant Company to recover damages for a personal injury. The appellant operates a street railway line, propelled by electricity, in the City of Peoria. The appellee, a boy about sixteen years old was riding with two other lads in a buggy on Adams street, when the buggy came into collision with one of the Company's cars, causing the injury com- plained of. The declaration charges negligence against the defendant in operating its car at an excessive rate of speed, and in failing to take notice of the buggy while on the track by reason of the shying of the frightened horse and to stop the car in time to avoid the collision. If the average rate of speed fixed by the street rail- way company is excessive, in view of the stops necessary to be made in the route, the company will be responsible for an accident occurring from the fact that one of its servants was speeding a car in conformity to the schedule of the company. Evidence of the distance of the round trip of the car and of the schedule time for making such trip is admis- sible in behalf of the plaintiff in connection with other testimony introduced as to the rate of speed of the car at the time of the collision. In such cases it is for the jury, looking at all the evi- dence, to say whether the man in charge of the car which collided with the buggy was unnecessarily driving the car at an excessive rate of speed, or whether the company had, by its schedule, fixed such a short time for making the round trip that the motor -man was obliged to go at 2&4 STREET RAILWAY LAW. an excessively rapid rate in order to make all required stops and pass over the length of the line within the prescribed time. (Supreme Court of Illinois. Central Railway Co. vs. Allmon, 147 111. 471.) Injury to Child — Contributory Negligence — Running in front of Car — Negligence of Driver — Conflicting Evi- dence — Refusal to Direct Verdict for Defendant. The sole question for determination is whether the defendant company was guilty of negligence in the manner of running its car at the time the accident occurred. This is the only question in the case, and the only one raised by the specifications of error. The learned Judge below was asked to direct the verdict for the defendant. We think this request was properly refused, as there was evidence that could not be with- drawn from the jury. It may be, as contended by the defendant, that the child ran suddenly under the car, and was not seen by the gripman, but there was evidence on the part of the plaintiff that other persons saw the child when the car was two lengths and a half away. There was also evidence that the gripman at the time was not attending to his business, that he was standing on the side of the cab, with one hand out of the window and looking towards the houses he was passing, and that he did not have hold of the grip or brake, that when called to by persons who saw the child, he paid no attention to the warning. This testimony, if true (and it has been so found by the jury) is of a very damaging character. Judgment affirmed. (Supreme Court of Pennsylvania. Schnur vs. Citi- zens Traction Co., 25 Atlantic Reporter 650.) STREET RAILWAY LAW. 285 Track Running Through Cut in Street — Excessive Speed — Injury to Horse. At the point where the accident occurred the defend- ant company had cut down the grade of the street, by the width of its tracks, some two feet. This was done in anticipation of a change of grade by the city. The dirt from this excavation was thrown upon the street upon either side of the track, and so allowed to remain for some weeks. A boy of seventeen years of age was riding a horse belonging to the plaintiff, along the right hand track, going away from the city. An electric car belonging to the defendant company was approaching on the other track. Just as the car and horse were nearly opposite each other the horse, it is alleged, became fright- ened and attempted to climb out of the roadway over the embankment referred to. The boy pulled him back and attempted to dismount. While he was trying, as he said, to dismount, the horse was struck by the car, and died from the effects of the collision. There was evidence that the car was going through this cut at a high rate of speed for an electric car — faster than usual. If this be so, and the jury have so found, it was gross negligence on the part of the company. Their cars should have been run slowly and with great care through a place of this description. The cut in the street and the dirt piled upon each side of the track was a work of its own crea- tion, and for which it was responsible. It was an ob- struction to public travel, and great care should have been exercised in running the cars at such a place. But for this obstruction it is not likely the accident would have occurred. The court below was entirely right in submitting' the case to the jury. (Supreme Court of Pennsylvania, Greeley V. Federal St. R. Co., 25 Atlantic Reporter/ 796.) , / 286 STREET RAILWAY LAW. Action Against Street Railway for Personal Injury — Evidence of Policemen Arresting Car Driver — State- ments of Driver Regarding Accident. A policeman who arrested the driver of a car that had run against a woman was allowed to testify as to the arrest in an action against the employer of the driver for negligence. Held, that the evidence w as inadmissable. After the arrest, but before leaving the car, the driver, in answer to the policeman's inquiry why he did not stop the car, stated that the brakes were out of order. Held, to be mere heresay, and not admissable in evidence against the driver's employer. (New York Court of Appeals. Luby v. Hudson River R. Co. i American Street Railway Decisions 279.) Injury Caused by Defective Street — fudgment Against City — Action by City Against Street Railway Com- pany. A city ordinance permitting a street car company to lay its tracks in a certain street required that the same be on a level with the street, and that the space between the tracks be kept in good repair. An action was brought against the city for personal injuries resulting from de- fects in such street. The complaint alleged that the street was full of holes, and that the rails of the street car track were some four inches above the level of the street; that by reason thereof plaintiff was thrown from his wagon and injured. The street car company was notified of the action and rendered some assistance in the defence. The jury were instructed that the city was lia- ble, and judgment was rendered for the plaintiff. Held, in an action by the city against the street car company for the amount of such judgment, that the judgment STREET RAILWAY LAW. 287 was conclusive only of the facts that the street was defective, as alleged ; that by reason of such defects plain- tiff was injured, and the amount recovered. It was error to reject evidence by defendant that its tracks were laid, kept and maintained in compliance with the ordinance. The burden of proof was on the city to show that it was the fault of the street car company that the rails were above the level of the street. (Supreme Court of Missouri. City of St. Joseph vs. Union R. Co. 22 Southwestern Reporter 794-) Street Car Colliding- with Vehicle — Frightened Team — Failure to Stop Car After Knowledge of Danger. In an action against a street railway company which operated cars by means of steam motors, for injuries caused by colliding with plaintiff's horses and carriage, it appeared that the engineer saw plaintiff's team 150 feet away; that the moment the horses saw the engine they became frightened and showed by their actions that they could not be managed; that they plunged and backed the carriage on the track when the engine was seventy- five feet away; that plaintiff halloed and waved his hand to stop the train; and that the train could have been stopped within a space of ten feet. Held, that the en- gineer could have seen the helpless condition of plaintiff in time to have stopped the train and avoided the injury. Where the evidence clearly showed that plaintiff made every effort to avoid a collision, but, on account of the frightened condition of the horses, could not control them, the court properly refused to charge that if plaintiff could have seen the car approaching and did not escape it is presumed either that he did not look or did not heed what he saw, and that such conduct is negligence. 288 STREET RAILWAY LAW. The fact that plaintiff could have traveled on some other street than that on which the street car track was laid is not negligence, where he had no reason to believe that his horses would become unmanageable at the sight of the engine and cars, (Indiana Appellate Court. Muncie St. R. Co. v. May- nard. 32 Northeastern Reporter, 343.) STREET RAILWAY LAW. 289 Excelling Passenger for Failure to Comply with Rules. Where a Street car company has adopted a rule against passengers riding on the platform, a request by the conductor that persons viola- ting the rule shall come inside the car, in observance of the rule, should be complied with, whether the person had notice of the rule or not; but when he wantonly refuses to obey, the Company has the right, at once, to expel him, using no more force than may be neces- sary for that purpose. This is an action in case, brought by the appellee to recover damages for being ejected from one of appel- lant's street cars, after he had taken passage thereon. A trial resulted in a verdict and judgment for ninety, dollars. The evidence shows that appellee took passage on one of appellant's electric cars at a time when all the seats inside the car were occupied, but when there was plenty of standing room within, and the aisle was clear. He, with three others, took position on the rear platform, when they were requested by the conductor to go inside. It was against the rules of the company to allow passen- gers to ride on the rear platform. The others pressed in, but appellee refused. He was several times so requested by the conductor, but each time refused, and persisted in standing on the platform. At length the conductor told him he must either go in the car or get off, and refused to go further with the car until appellee should comply. Appellee then left the car, no violence being used toward him. The conductor did not lay his hands upon, nor offer to do so. It is difficult for us to understand upon what theory the plaintiff is entitled to damages. The rule which he refused to comply with, and because of the enforcement of which he was denied passage on the car, was estab- lished for the safety of passengers, and the convenience of employes operating the car. It was a reasonable and proper rule. He saw fit to stand out in defiance of it, lyb STREET RAILWAY LAW. evidently from sheer stubbornness, or to invite an assault from the conductor. A street car company has the right to require a passenger to observe all reasonable rules tending to promote the safety and convenience of passen- gers, and the successful conduct of its business. So long as a passenger observes such rules, the company is bound to carry him; but when he wantonly refuses to obey them, the company has the right at once to expel him, using no more force than may be necessary for that pur- pose. Appellee contends that he had not sufficient notice of the rule. We do not think it was necessary for the conductor to have exhibited the rule, or told appellee in terms that the company had adopted such a one. The request of the conductor was reasonable, made in observance of the rule, and it was the duty of appellee to comply, instead of standing out against it with childish obstinacy, as he did. The conductor should have con- trol of his car, with the right to enforce all needed regu- lations, and all reasonable requests made by him with that end in view should be obeyed by passengers. The judgment will be reversed, and, inasmuch as we find that the facts are such that the plaintiff has no cause of action, the cause will not be remanded. (Illinois Appellate Court. Fort Clark Street Railroad vs. Ebaugh. 49 Ills. App. Rep. 582.) Consolidation of Street Railway Companies — Original Charter — Obligation of Contract. Certain street railway corporations, organized before the adoption of the Tennessee Constitution in 1870, con- solidated their property and franchises after the adoption of said constitution. Nothing in the constitution or sub- sequent acts of the legislature indicated any intention to deprive such consolidating companies of any privileges STREET RAILWAY LAW. 2QI or franchises exercised under their old charters. The said constitution required all corporations to be formed in pursuance of the general laws, whereas the said consoli- dating companies had been organized under special char- ters. Held, that under the rule that the presumption must be that the consolidated company preserves its original charter rights and burdens intact, unless the contrary is expressed, the said corporations did not, by the act of consolidation, subject the irrevocable rights granted by the original charters to the dominion of the state; and neither the state nor a city thereof could take away from the consolidated company the right to use a certain street under a right granted by the original char- ter to operate a street railway " on all or any of the streets in the city." (United States Circuit Court, Western District, Ten- nessee. Citizens' Street R. Co. vs. City of Memphis. 63 Federal Rep. 736.) Motive Power — Stringing Trolley Wires — Injunction. The mere fact that a charter granted to a railway com- pany contains some provisions usually contained in special charters granted to railroad companies, such as condem- nation of land, and the taking of the railroad by the state, does not require the charter to be construed so as to prevent the construction and operation of a street rail- way within a city, where the charter expressly confers upon the company the right to construct its railroad from some point within the city to a point without, as well as along any street of the said city. In an ordinance of a city, consenting to the construc- tion and operation of a railroad within the city, the words " horse railroad track or tracks," must be taken as descriptive of the railroad to be constructed, and not 292 STREET RAILWAY LAW. of the motive power to be used, when the terms " horse railroad " and " street surface railroad " have come to be convertible. An act entitled " An act providing for the placing of electrical conductors under ground in cities of this state, and for the creation of a board of commissioners of elec- trical subways," provides that no electrical wire or cable shall be constructed along, across or above the surface of any street or avenue in any city without authority from the board created by the act. Held, that while the general object of the law is to require electric wires occupying the streets of a city to be placed underground, the commission is authorized to permit wires to be strung in cities until such time as the overhead stringing of wires can be terminated without hardship. Where the authority of a street railway company to string its trolley wires without the consent of the said commissioners is doubtful, the company is not entitled to an injunction restraining an abutting owner from cut- ting down the wires which it has placed above the walk in front of such owner's lot. (New Jersey Chancery Court. Patterson R. Co. vs. Grundy. 56 American and English Railroad Cases, 486.) Reorganization of Street Railway Company — Assign- ment of Contract Rights — Using Track of other Company. Two corporations organized under the general laws of the state, each holding assignable street railway fran- chises, entered into a contract (each acting for itself, its successors and assigns) by which the first agreed to pay the second, as a consideration for authorizing it to run its cars over its track, four cents per mile for each and every mile traveled by each and every car run over its tracks; STREET RAILWAY LAW. 293 said agreement to last during the term of the charters granted to the said respective corporations, or of any extension of said charters, provided that, in case the first company shall cease to use the privileges granted to it in the contract, then, and in that case, the agreement shall be ended. Held, that where the first company is in undisturbed possession of the right, exercising and enjoy- ing it every day, it cannot release itself from its contract obligations on the claim that the agreement was ultra vires of the powers of its officers; that where under such a contract the second company conveys all its rights, property, and franchises, specially including therein its rights under the agreement mentioned, to a third com- pany, which assumes all the obligations of the former under the agreement, there is nothing in the assignment of which the first company can complain; the said third company having been organized by the stockholders of the second company, and for the express purpose of acquiring all the rights, property and franchises of the old company, and assuming all its obligations, and the old company having postponed its dissolution until after such transfer and' assumpsit should have been made, the new company, for the purpose of the contract declared on in this case, was merely the old company organized under a new name. (Supreme Court of Louisiana. Canal & Claiborne R. Co. vs. St. Charles Street R. Co. 44 La. Ann. 1096.) Injury to Child — Obstruction in Street — Construction Company — Who liable for Injury. In an action against a street railway company for the death of a child, it was not claimed that the city had any active agency in causing the accident, further than giving the construction company a contract to build a sewer, 294 STREET RAILWAY LAW. and its ordinances required the construction company to so place the excavated material as not to interfere with travel on the streets or incommode occupants of adjoin- ing property, and to observe all ordinances in relation; to obstructing streets, etc. Held, that if the city were liable at all, it was for negligence in permitting the construc- tion company to violate its ordinances by creating and maintaining a nuisance. A construction company, under a contract with a city to build a sewer, made a temporary wall of the pave- ment blocks which had been torn from the street, leaving an aperture through which people might pass upon a foot-path five feet wide along the side of the street rail- way. Travelers had been accustomed to use this path- way, and did not usually cross the street railway at this point. It seems that the construction company had left the aperture in the wall for the purpose of accommoda- ting travelers, and to avoid obstructing the street. A child, in attempting to cross the railroad, after having passed through the small aperture, was killed by a pass- ing car. Held, that the construction company was not a joint tort feasor with the railroad company, because it could not logically nor reasonably be maintained that there was any necessary connection between the death of the child and the work of the construction company. (Supreme Court of Missouri. Stanley vs. Union Depot R. Co. 56 American and English Railroad Cases, 561.) Negligence oj Car Driver in Frightening Team — Contributory Negligence. In an action against a street car company for injury to plaintiff's horses, caused by collision with defendant's car, it was held that the plaintiff was not guilty of contribu- tory negligence in selecting the street upon which the STREET RAILWAY LAW. 295 injury occurred, when he might have gone another route, although the space between the tracks and retaining wall was narrow, and an electric railway causing noise calculated to frighten horses was being operated on that track. The conductor on the street car was guilty of negli- gence in not stopping or slowing up his car, which was running at a high rate of speed, where, as soon as he came in sight of the plaintiff's horses, they began to rear and jump, and the conductor saw, or ought to have seen, in the exercise of ordinary prudence, the team, and that they were frightened. If the driver of a wagon was placed in a state of peril by the negligence of the motorman of the street car, the company is responsible for the consequences which ensued, though the peril might have been increased by an effort made to avoid it, or might have been lessened or escaped in the exercise of unusual courage and self- possession, provided the driver used the care of an ordinarily prudent man, under all the circumstances. If the driver of a vehicle is placed in a state of peril by the negligence of those having charge of a car, the company is responsible for the consequences, since " a defendant cannot impute a want of vigilance to one injured by his act, as negligence, if that very want of vigilance were the consequence of an omission of duty on his part." (Supreme Court of Pennsylvania. Gibbons vs. Wilkes- barre & Suburban St. R. Co. 155 Pennsylvania State Reports, 279.) 296 STREET RAILWAY LAW. Damages for Cutting Trolley Wires. Where a street railway company authorized by a city to change Its motive power to electricity, strung trolley wires across the defendant's railway track at a height of nearly 20 feet, offering to have them raised to the height of 32 y 2 feet, which was the standard height for bridges above the railroads of the state ; the defendant company wai liable for all damages resulting from its act in cutting away the wires above its track, although it had notified (he plaintiff that it would not allow the wires to be strung at a less height than 24 feet, which was the height fixed by the railroad commissioner. The Michigan Central Railroad Company operates its road across Genesee and Washington streets, in the city of Saginaw, upon the track of the Detroit & Bay City Railroad Company, which latter company has had the right of way across the streets by grant from the city of East Saginaw, since the year 1878. The Saginaw Union Street Railway, then operating its road by horse power, in December, 1889, changed its operating power to electricity, by permission of the city, granted by ordinance. It saw fit to use the trolley system; it placed the trolley wires across the defendant's tracks on Genesee and Washington streets. At Genesee street the over- head wire was placed 19 feet 9J4 inches above the defendant's track-rails; at Washington street, 19 feet 6 inches above such rails. On the 16th day of May, 1890, while the plaintiff was in the full operation of its road, and running its street cars, the defendant company cut the wires of plaintiff where they crossed its tracks on Genesee and Washington streets. For this act the plaintiff brought this suit in trespass and recovered a verdict and judgment for $933.03. The defense to this action was, in substance, that in operating the defendant company's road it was necessary to pass under these wires, cars from 12 to 14 feet and 3 inches in height from the tracks, and cars loaded with STREET RAILWAY LAW. 297 lumber to the height of 15 feet; that it was necessary to have brakemen standing on the top of these cars to signal the engineer, and for other purposes, and that, under these necessities, the wires of plaintiff were not placed at sufficient height from the ground so that defendant rail- way could be operated in the usual manner with safety to its employes. That February 11, 1890, John T. Rich, then state railway commissioner, issued an order to the general managers and superintendents of Michigan rail- roads, instructing them not to permit the erection or maintenance of the wires of electric street railways at a less distance above their tracks than is allowed for bridges and other obstructions not suitably guarded, and that this distance should not be less than 24 feet above the track. April 12, 1890, W. A. Vaughan, division superintendent of the defendant, notified the plaintiff by letter that its wires were less than 24 feet above defendant's tracks, and of the railroad- commissioner's order, and asked plaintiff company to comply with such order. April 15, 1890, the president of plaintiff company replied to this letter, that it was its intention to have its wires 22 feet 6 inches above the track at steam railway crossings, being advised that such height was sufficient and was the standard for railway bridges. This letter Mr. Ledyard, president of the defendant company, answered by letter of May 3, 1890, stating that such company would not permit the wires of plaintiff to be strung across its tracks at the height of 22 feet, 6 inches, and further wrote: "I am constrained to advise you that if by May 15, 1890, the wires of your company, wherever they may cross the right of way of this company or any of its leased lines, are not placed at the height of 24 feet, this com- pany will proceed to remove the same from its right of way." Nothing further being done by the plaintiff's 298 STREET RAILWAY LAW. company, the defendant cut the wires of plaintiff at these two street crossings, about 4 o'clock p. m., May 16, 1890. We are satisfied that the evidence shows that there was ample time while the motive power of the plaintiff was at rest, and when its cars were not running, to have removed these wires; the removal of them was done at a time when it involved great loss to plaintiff and great danger to human life. Under the circumstances, the defendant company was a trespasser ab initio and liable for all damages. It was shown that no bridge on the defendant's company's line was higher than 22 feet, and that the railroad commissioner had sanctioned and consented to the wires of other street railroad companies at West Bay City and Lansing being maintained at a height of 22 feet 6 inches. The defendant company refused to permit the plaintiff to string its wires at this height. The commissioner of railroads had no arbitrary power to fix 24 feet as the height at which such wires must be maintained in the absence of any showing that a less height was insufficient to prevent any danger to the employes of the railroads. The refusal of the defendant company to permit plaintiff's wires to be raised to 22 feet 6 inches — and the testimony shows they could have been so raised without cutting the wires or destroy- ing the property— and its choosing of the time to cut such wires when the plaintiff company was in full operation of its sixteen miles of road in the city of Saginaw, was such a violation of the plaintiff's rights as cannot be excused, and justifies the recovery of all damages suffered by the plaintiff on account thereof. (Supreme Court of Michigan. Saginaw Union Street Railway Company vs. Michigan Central Railroad Com- pany. 91 Michigan 657.) STREET RAILWAY LAW. 29c) Street Railway Extension — Strict Construction of Charter. A statute authorizing a street railway company to extend its lines to portions of certain streets lying "between" Montgomery street and Germantown Road does not allow an extension along the Germantown Road, when construed in accordance with the principle that, in construing grants of powers to corporations, whatever is not given in clear and express terms or by necessary implication, is conclusively considered to have been withheld. When a charter granted to a street railway company requires the consent of the city council for any extension of the railway lines and a supplement authorizes the extension of the road without consent, a second supple- ment, which is silent as to consent, is to be taken subject to the requirement of the charter that consent shall be obtained. , (Supreme Court of Pennsylvania. City of Phila- delphia vs. Citizens Passenger R. Co. 151 Pennsylvania State Reports, 128.) Personal Injury — Right to Presume that Company has Complied -with Law — Contributory Negligence. In an action against a street railway company for death at a crossing, it was error to instruct the jury that the deceased had a right to presume that the defendant had complied with the law as to providing bells for its teams, in the absence of knowledge to the contrary, and that the failure to have bells on the team hauling the car, was negligence, and if the failure to provide the bells was the direct cause of the injury they must find for plaintiff, where it appeared that the accident happened in the daytime, that the street was clear from obstructions, that the team was moving at a walk, in full view 01 the 300 STREET RAILWAY LAW. deceased, who was well acquainted with the street and in full possession of his senses; because the instruc- tions took from the jury the question whether, if the boy had exercised due care, he might have discovered the absence of the bells, and because the presumption that the defendant would obey the laws and attach the bells must cease if actual knowledge to the contrary were shown. In such a case the defendant has the right to rely upon the exercise of ordinary prudence on the part of the plaintiff, as in this case, on the part of the deceased, and the plaintiff has the right to presume due care on the part of the defendant; the obligation being mutual and correlative. (Supreme Court of Missouri. Lynch vs. Metropolitan Street R. Co., 56 American & English R. R. Cases, 571.) Electric Car — Frightening Horse — Care Required of Motorman. Plaintiff was riding in a buggy with his daughter along Beach street, Lynn, when his horse became frightened at the sound of the motor and continued sounding of the gong of an electric car, and ran away, throwing him and his daughter from the carriage. The evidence tended to show that the electric car was 100 feet away when the animal first took fright, and that the motorman continued to sound his gong. The defendant contended that it was not negligence on his part to sound the gong, but rather a duty which it owed to pedestrians and other travelers on the streets. It is a well-known fact that most horses are frightened at their first view of a moving electric car, especially if they encounter it in a quiet place, away from the dis- tracting noises of a busy street. It is only by careful STREET RAILWAY LAW. 3OI training and frequent repetition of the experience that they acquire courage to meet and pass a car on a narrow street without excitement. The rights of the driver of a horse and manager of an electric car, under such cir- cumstances, are equal. Each may use the street, and each must use it with a reasonable regard for the safety and convenience of the other. The motorman is sup- posed to know that his car is likely to frighten horses that are not accustomed to the sight of such vehicles, while most horses are easily taught after a while to pass without fear. It is his duty, if he sees a horse in the street before him, that is greatly frightened at the car, so as to endanger his driver or other persons in the street, to do what he can, reasonably, in the management of his car, to diminish the fright of the horse ; and it is also his duty in running the car to look out and see whether by frightening horses, or otherwise, he is putting in peril other persons lawfully using the street, on foot or with teams. Of course, the owners and drivers of horses are required at the same time to use care in proportion to the danger to which they are exposed. The verdict of $2,000.00 for the plaintiff is sustained. (Supreme Court of Massachusetts. Ellis vs. Lynn & Boston Railroad Company. 2 American Lawyer, 235.) [Note.— Greeley vs. Federal St. R. Co., 25 Atl. Rep. 796, 4 Street Railway Review 225, was a case ol collision with a horse which had become frightened while traveling through a cut in a street. The court said: "There was evidence that the car was going through this cut at a high rate of speed for an electric car — faster than usual. If this be so, and the jury have so found, it was gross negligence on the part of the company. The cars should have been run slowly and with great care through a place of this description. The cut in the street, and dirt piled upon each side of the track, was a work of its own creation and for which it was responsible." In Muncie St. R. Co. v. Maynard, 32 N. E. Rep. 343, 1 Street Railway Review 225, plaintiff's team became frightened and backed 362 STREET RAILWAY LAW. the carriage upon the track in front of a street railway train. It appeared that the engineer could readily have stopped in time to avoid the collision, but failed to do so. The company was held liable. In Lincoln Rapid Transit Co. v. Nichols, 55 N. W. Rep. 87a, 3 Street Railway Review 702, which is a suit for damages caused by a horse becoming frightened by a street railway car operated by steam, the court suggests that the use of steam engines in operating street cars on a crowded city street is negligence of itself, even though the use of such motive power may have been authorized by the charter of the company. — Eo.j. STREET RAILWAY LAW. 303 Guard Wires to Protect Wires of Telefhone Companies. A telephone company doing an established business, and having its wires strung in the streets, by license of the city, may have mandamus to a street car company thereafter licensed to use electric power on the same streets, to obey an ordinance requiring it to string guard wires to its trolley wire, in places where it must cross other wires, so as to pre- vent damage by its breakage, on a showing that relator is in special danger as to the life of its servants and the integrity of its property in case of such breakage, that breakage cannot be prevented altogether and that guard wires are the approved and only safeguard therefor. In the opinion the Court said : We are of the opinion that the facts set out in the rela- tion are sufficient to entitle the relator company to the remedy asked for. The telephone company occupied the streets of the city with its poles and wires, and was in the safe and successful prosecution of its business, under the authority of law and " by the permission, consent and approval" of the City of Janesville. The defendant company afterwards sets its poles and extends its wires along the same streets so that its lines frequently cross the lines of the relator, and in such near contact as to endanger the persons in its employment, and its property, and threaten the destruction of its business. Relator's wires are up in the streets, bearing sufficient electrical power to make telephonic communications, and the defendant crosses them in many places with its wires, bearing electrical power sufficient to propel the cars upon its street railway; and the first storm that comes may blow down the poles and wires of the relator and its wires come in contact with the wires of the defendant where they cross each other, and become charged with its dan- gerous currents of electricity, set fire to the buildings in which the telephone instruments are used, and injure other property, and the persons employed in the " Exchange " and other places, so as to endanger or 364 STREET RAILWAY LAW. destroy the business of the relator. Ought not the defendant to be compelled to adopt the above safeguards to prevent this threatened mischief or to withdraw its lines from the vicinity of the relator's wires? Section seven of the ordinance of the city, dated Octo- ber 10, 1892, imposes this duty upon the company using this " electrical power system " in all cases, and requires it to apply such safeguards, under a penalty. It is claimed that said ordinance has only future opera- tion or effect. In application to the case, section seven of that ordinance provided : " Whenever it shall be neces- sary to cross * * * telephone line or lines or any wires used," etc. Has it not been necessary for the defendant company to cross these telephone wires or lines of the relator since the passage of the ordinance, and is it not now necessary to do so? Then the ordinance by its terms is applicable to this case. The ordinance is made to regulate existing things, and things which con- tinue to exist, as the wires of the defendant cross the wires of the relator. Whenever at any time wires so cross, this safeguard must be applied. The ordinance has a present and future effect. It is said these wires crossed before the ordinance was passed. This is true, — and they have continued to cross ever since, in violation of the ordinance. The ordinance does not prohibit the crossing of such wires. It provides the remedy for it as an existing evil, and requires safeguards to be so placed as to avoid the danger to person and property. It is not retroactive in any sense. First. — The ordinance is reas- onable because it requires that to be done which in law and good conscience the defendant ought to do for the protection of the relator, whose established business it has endangered and disturbed. Second. — It is clearly sustained under the police power of the city. SfREET RAILWAY LAW. 30^ There can be no question, at this late day, but that our municipal corporations may make all reasonable regulations for the location and use of electric wires in the streets, and require all reasonable safeguards for the same. The question is virtually so settled in this state by our own decisions. The relator is entitled to sue out the writ of mandamus to compel the defendant to pro- perly place such guard wires as the proper safeguard in such a case to protect its rights and safety. The relator is especially interested in the defendant's performance of this public duty. It is admitted to be true that such guard wires so placed are the very best and most approved method of safeguard in such case. This then is a clear legal right to be enforced by mandamus. There is no adequate remedy in such a case except by the writ of mandamus to compel the respondent company to do what it is clearly right for it to do — and that the relator has the right to compel it to do. The penalty enforced would not cure the mischief. It is said that no such damages have yet accrued. The relation very clearly shows that such damage is imminent and threatening, and the danger is all the time present. This might be sufficient ground for an injunction to restrain the defendant from crossing the wires of the relator with its wires — a much more violent remedy. The relator does not seek to prohibit such crossings, but only to make them safe. The relator is conducting its telephone business under constant fear and apprehension. Must it wait until the full extent of the apprehended con- sequences have been realized? The remedy sought is clearly the proper one. (Supreme Court of Wisconsin. State ex rel Wisconsin Telephone Company vs. Janesville Street Railway Com- pany, 57 Northwestern Reporter 970.) 306 STREET RAILWAY LAW. Electric Cars — Injury to Passengers by Electric Shock. In an action for personal injuries resulting from an electric shock, caused by contact with defendant's street car while alighting therefrom, evidence that the car was so charged with electricity as to injure a person by con- tact with any part, establishes a frima facie case of negligence. It was proper to ask a witness, who testified that elec- tricity could not be transmitted to a trail car in such quan- tities as to cause personal injuries, whether the metal rail- ings around all of defendant's cars were not blistered by leakage of electricity; such questions not being objec- tionable as not being limited to the car by which plaintiff was injured and about the time of the accident, when the witness testified that he did not know of the injury till the day after it happened, or what caused the injury. Colorado Court of Appeals. Denver Tramway Com- pany vs. Reid, 35 Pacific Reporter, 269 Boy Riding on Plaftorm at Invitation of Motorman. — Ejection by Conductor. The jury found specially that plaintiff had been injured by the wheels of defendant's electric car, that with other boys he went on said car by invitation of the motorman ; that the conductor did not warn them off till after the car was in motion; that he used force, whereby plaintiff lost his hold and fell from the car; that the boys did not go on the car without leave after the same was in motion; that plaintiff was ten years and ten months old at the time, and under the circumstances, was not guilty of negligence proximately contributing to the injury. The complaint alleged that when plaintiff fell the car was going at a high rate of speed, and the court entered judg- ment for plaintiff, " all of the allegations of fact in the STREET RAILWAY LAW. 307 complaint herein beyond those covered by the said special verdict having been proved to be true by the undisputed evidence on the trial." Held, that the judgment was sup- ported by the special verdict and findings, though the ver- dict did not specifically find defendant's negligence. The complaint alleged that defendant's electric car was in charge of a motorman on the front platform, and a conductor; that the motormen had been been used to permit boys of plaintiff's age (n) to ride on the front platforms and steps to a certain switch "for the purpose of inducing such boys to turn said switch " for said motor- men ; that while the car was stopped at a corner, plaintiff, with the permission of a motorman, "in pursuance of the custom mentioned," stepped on the lower front step for the purpose^ riding to said switch. Held, that the com- plaint alleged no purpose of plaintiff to aid in operating the railway such as to make him a volunteer fellow-serv- ant of the conductor. Supreme Court of Wisconsin. Hart vs. West Side Railroad Company. 57 Northwestern Reporter, 91. Action by Mother for Causing Death of Son — Evidence of Inexperience of Person Killed — Gates on Platforms. The fact that the passenger killed had never before ridden upon an electric car was admissible in evidence, as tending to illustrate the cause of his failure to alight in safety; familiarity with this mode of transportation would qualify him to see and appreciate danger which he would not be likely to observe if he was wholly without experience. With experience, he might be chargeable with fault; without it, with none. Although there may be no negligence whatever in the failure of an electric street railway company to have gates on the platforms of its cars for the purpose of 308 STREET RAILWAY LAW. guarding against accidents to passengers, by preventing them from leaving the cars on the side next to the parallel track of the same company in the street, yet when the company has such gates on the platforms of its cars, not to keep them closed may or may not be negligence in a given instance, and this is a question of fact for the jury. When a car stops because of an obstruction on the street, and not to afford any passenger an opportunity for getting off, the company is not responsible for the safety of the place as one for getting off, whether the car, at the time the passenger undertakes to do so, was in motion or at rest, the conductor not seeing the passenger or being aware of his purpose at the time the attempt to get off is made. (Supreme Court of Georgia. Augusta R. Co. vs. Glover, 18 Southeastern Reporter 406.) Action for Personal Injury — Defective Street — Duty of Street Car Company to Repair. Appellee sued for injury sustained in consequence of defective condition of a street crossing at a place where two streets cross each other, along one of which streets the track of the appellant lay. It is familiar law in this state that the repairing of streets in a city is the duty of the city. If a corporation accepts a grant from a city of the right to use the street in a special manner, and the grant is burdened with a duty, which it neglects, and injury results, the corporation would, no doubt, be responsible for the consequences of neglect of that duty; but for mere non-repair of a street in which it has a special privilege, it is not liable simply because it has such such special privilege. (Illinois Appellate Court. Rockford City Railway Company vs. Matthews, 50 Illinois Appellate 267.) STREET RAILWAY LAW. 3O9 Wagon on Street Car Track — Failure to Turn Out — Collision. Plaintiff driving in his wagon in a broad street, with his nigh wheels in defendant's street car track, was met and run into by a car. Held, that the Court properly charged that the car driver had a right to assume that plaintiff would turn out in time, but that if plaintiff failed so to do, and the car driver saw it, he must do what he could to stop his car and warn plaintiff off. (Supreme Judicial Court of Massachusetts. Glaze- brook vs. West End Street Railway Company. 35 Northeastern Reporter 553.) Person Injured by Iron Falling from Trolley Pole — Presumption of Negligence. In an action against a street railway company for per- sonal injury, it was undisputed that an iron ear, which connected the trolley wire with a guy, broke and fell on plaintiff's head. There was no other evidence that the accident was caused by defendant's negligence. Held, that an instruction which recited the manner of the accident and asserted that, if nothing else appeared, the jury should find that defendant was negligent, was proper, and was not misleading, where the jury was further instructed to consider all the evidence. (Supreme Judicial Court of Massachusetts. Uggla vs. West End Street Railway Company, 35 Northeastern Reporter 11 26.) 3IO STREET RAILWAY LAW. Injuries Inflicted by Fellow Passengers. The failure of a street car company to expel an intoxicated man from its car does not render it liable for an injury inflicted by him upon a fellow passenger, where the intoxicated man has not been demeaning himself in such a manner as to forfeit his legal right to ride. This suit was for the recovery of damages for injury to plaintiff's foot. The injury was by being trodden upon by a passenger who was standing in the same car where the plaintiff was seated. The plaintiff entered the car at the City Hall Station, and after it started she noticed a man in a state of intoxication standing in the aisle holding on to a strap, nearly in front of her. After the man had been in that position some time he lurched and stepped on the plaintiff's foot. He was holding on to the strap and lurching at every turn. Some ladies appeared to be frightened, but neither they nor the plaintiff made any special manifestations of their fear. A passenger called the attention of the guard to the intoxi- cated man, and suggested that he be put off or found a seat; and made some other suggestions, but he was not removed. At the trial, when the plaintiff rested her case, the trial judge dismissed the complaint. The question is whether the testimony introduced on the part of the plaintiff was sufficient to carry the cause to the jury. There is no legal principle which imposes liability upon a carrier of passengers for the wrongful acts of the pas- senger; but because such carriers have the right to refuse passage to one who is drunk or disorderly, and to expel him after he has been received, if he so conducts himself as to be dangerous to other passengers, or inter- fere with their comfort, and it is their duty to expel per- sons who imperil the safety or annoy their fellow passen- gers, they may become responsible for injuries inflicted STREET RAILWAY LAW. 311 or resulting as a consequence of such negligence. Yet, it must be borne in mind that all passengers have the same legal rights, of which they cannot be deprived until they are forfeited by their misconduct. A man in a state of inebriety has a legal right to ride in a public conveyance. So long as he remains quiet and molests no one he cannot be legally expelled. It is only when he becomes dangerous or annoying to other passengers that he becomes liable to expulsion. There is no claim that the injury to the plaintiff was intentional, and we detect no misconduct on his part that would have justified his expulsion from the car. We also find the evidence entirely insufficient to charge the guard with any neglect of duty which the law imposed upon him. It is true that his attention was called to the man, but he neither saw nor received information of any impropriety, nor anything to indicate a disturbance. It follows that we find no cause of action. (Supreme Court of New York. Thompson vs. Man- hattan Railway Company. 27 New York Supple- ment 608.) Injury to Passenger — Proximate Cause — Passenger Jumping from Moving Car. Two acts of negligence are charged in the declaration, viz : That de- fendant's driver failed to stop its car, as requested, at the intersection of Addison street and Evanston avenue ; and that the deceased, while with due care and diligence endeavoring to alight from the car, was thrown to the ground and injured by reason of the negligence of ap- pellant in failing to properly equip its cars with safety guards and appliances. As to the alleged negligence in failing to stop its car when requested the Court is unitedly of the opinion that no recovery can be had in this case. For whatever 312 STREET RAILWAY LAW. damage a passenger may sustain from the failure to stop a street car at a proper place when properly requested, such failure being the proximate cause of the injury, a recovery might be had. In the present case, between the negligence of the driver, and the injury to the plaintiff's interstate, there intervened another cause without which the accident would not have happened; that intervening cause was the act of the deceased in jumping from the car while it was in motion. The train of events, from the failure to stop the car to the accident, was not a natural or necessary sequence from the act of the driver in not stopping his car; nor was the jumping from the car, so far as is shown by the evidence, a thing which the defendant can be presumed to have known would follow the failure to stop. (Appellate Court of Illinois. North Chicago Street Railway Company vs. Wrixon. 51 Illinois Appellate, 307.) Injury to Person Crossing Street — Rate of Sfeed — Neg- ligence. Street cars propelled by electricity and running along land burdened only with the easement of a public highway, cannot be run at a rate of speed incompatible with the lawful and customary use of the highway by others with reasonable safety. The rule requiring one exercising his lawful rights in a place where the exercise of lawful rights by others may put him in peril, to use such precaution and care for his safety as a reasonably prudent man would use under the circumstances, is the measure of duty for one who crosses a public highway on foot. He must use his powers of observation to discover approaching vehic- les, and his judgment how and when to cross without collision: but his observation need not extend beyond STREET RAILWAY LAW. 313 the distance within which vehicles moving at lawful speed would endanger him. If obstacles temporarily intervene to prevent observation, he should wait until the required observation can be made. (New Jersey Court of Errors and Appeals. New- ark Passenger Railway Company vs. Block. 27 Atlan- tic Reporter 1067.) Rights of Street Railway in Street — Consent of Abut- -ting Property Owners — Agreement Contrary to Pub- lic Policy. When the property of an abutting owner is damaged by the construc- tion of a horse railroad in front of his premises, he is, under the pro- visions of the Constitution, entitled to compensation. Thinking that such construction would be a damage to him, he has a right, before and as a condition of giving his consent to the laying of such tracks, to bargain and sell the right to damage his property, for the largest sum he can obtain. Where an obligation provided that if the obligor would " violate the con- ditions of this obligation the sum of one hundred thousand dollars shall thereupon become due and payable to the said obligee, * * * as liquidated damages therein," etc., it was held that the sum nomin- ated was not in law liquidated damages, but merely a penalty. A street railroad company cannot, by a contract with an individual, limit the sphere of its action and contract that it will not in the future do that which the public interests may demand. The Chicago City Railway entered into an obligation " that it will not hereafter build, construct or lay, any other or more than a single track railway without switch or switches, turnout or turnouts, along any part of Wabash avenue, between Lake street and the north line of Madison street." Held, that the obligation was with- out binding force, as it was in effect a contract not to do that which, in the future, the public interests might demand. (Appellate Court of Illinois. Doane v. Chicago City Railway Company. 51 Illinois Appellate 353.) 314 STREET RAILWAY LAW. Obstruction Near Track — Elevated Railroad Pillar — Injury to Person on Step of Street Car. The plaintiff, with some friends, boarded an open sum- mer car of the defendant, having steps running along upon the outside. The plaintiff stood for a time on the rear platform smoking. As the car neared Forty-Second street some people got out and the plaintiff undertook to proceed along the side step to occupy one of the seats vacated. The change was voluntary on his part, and while he was attempting to consummate it his head was brought in. contact with an elevated railroad column and badly injured. At the trial the complaint was dismissed, and we think the dismissal was right. The defendant was guilty of no act of negligence, and did nothing by means of which the plaintiff was injured. The defend- ant was not responsible for the presence of the elevated railroad columns, nor for any injuries caused by them. (City Court of New York. Vroman vs. Houston W. St. & P. F. R. Co. 27 New York Supplement, 257.) Injury to Person in Street— Wagon Beside Track — Care of Motorman. So long as a common user of streets exists In the public it is the duty of street railway companies to exercise such watchful care as will prevent accidents or injuries to persons who, without negligence on their own part may not at the moment be able to get out of the way of a passing car. The degree of care to be exercised must necessarily vary with the circumstances of each case. In an action against a street railroad company for per- sonal injuries, plaintiff, the driver of a delivery wagon, testified that he drove his wagon close to the curb be- cause he knew the street was so narrow as to render it difficult for cars to pass teams; that after making the de- livery he noticed an approaching car, and went to the rear of the wagon to shut up the tail board; that he sig- STREET RAILWAY LAW. 315 nailed the motorneer to stop, and started to unhitch the horse to get him out of the way of the car, and that, while unhitching, the car struck the end of the wagon, frightening the horse, which turned around and injured plaintiff. Held, sufficient evidence of negligence on de- fendant's part to warrant the submission of the case to the jury. (Supreme Court of Pennsylvania. Kestner v. Pitts- burg & B. Traction Co. 27 Atlantic Reporter 1,048.) Street Railway — Paving Streets — Raising Track to Grade. A borough, in 1886, granted a street railway company a franchise of certain streets, the company to keep them in repair between and a foot outside its rails, to construct its road in accordance with the grades, and, in case of change of grade or improvement, to change said rail- way to conform thereto, as per notice from the borough engineer, at the company's expense. The company accepted, and built on the borough's principal street, which had been macadamized some eight or ten years before. The street being about worn out, and the borough and its traffic having largely increased, in 1890 the council determined to pave the street with Belgian blocks. Held, a reasonable and proper repair, to which the company was bound to conform its part of the street. When a street railway company contracts, in case of a change of grade or improvement, to change its "rail- way" to conform thereto, it does not conform to a change of grade by digging trenches for its rails to the new grade, leaving the space between unexcavated. (Supreme Court of Pennsylvania. Borough of Mc- Keesport v. McKeesport Passenger Ry. Co. 27 Atlan- tic Reporter, 1,006.) 3 1 6 STREET RAILWAY LAW. Unguarded Excavation — Injury to Person Traveling in Street — Liability of Street Car Company. Plaintiff was injured by the wheels of her wagon get- ting into an excavation made by the removal of the cob- blestones on a turnpike road, between the rails of defendant street railroad company. The excavation was near a bridge which the turnpike company was raising, and, at the time of the accident, was unguarded and un- lighted. It is no doubt true that it was competent for defendant company to show that the injury complained of was due to the negligence of others; but, unfortu- nately for it, there was evidence that the repairs out of which the injury grew were under the immediate charge of its officers, while the railway was in actual operation by the company. The public had a right, and, it appears, was accustomed to use the tracks in common with de- fendant; and if the track was put in such a condition as to render dangerous public travel it was the duty of those having charge to give adequate warning. The judg- ment is affirmed. (Supreme Court of Pennsylvania. Wagner v. Pitts- burg & W. E. Pass Ry. Co. " 27 Atlantic Reporter, 1,008.) STREET RAILWAY LAW. ^lf Tivo Punches on Transfer Ticket — Liability for Eject- ing Passenger. A street railway company is liable for the ejection of a passenger presenting a transfer ticket punched as of the proper time, although there is an earlier punch-mark upon the ticket, where the later mark is genuine, and the transfer was not given to the passenger until he was leaving the car, although he made a timely request therefor, notwithstand- ing a rule requiring passengers to examine the transfer and see that it is correct. (Supreme Court of Pennsylvania. Laird vs. Pitts- burgh Traction Co., 166 Pennsylvania State Reports 4.) Injury to One Crowded off the Platform of Car. In an action for personal injuries against a common carrier, when the plaintiff's injury does not result from any accident to the train, or from any defect in the means of transportation, the burden of proof is throughout on the plaintiff to show his injury was the result wholly of the defendant's negligence. Where a passenger on the conductor's invitation boarded a car but could not get inside because of the crowd, was compelled to stand on the platform and was finally pushed off the car by the crowd and injured, it was held that the defendant was not liable. The opinion by Dean, J., is as follows: "The defendant operates a narrow gage railroad running about seven miles out of Pittsburgh. On the 18th June, 1893, defendant, to accommodate a German society in an excursion to West Liberty, on the line of its road, ran excursion trains to that point from Carson street in Pittsburgh. The route was up an incline rail- way from Carson street to summit of a hill, then down an incline operated by a cable, 1,300 feet, to foot of hill on other side where the cars were attached to a locomo- tive which took them to West Liberty. The plaintiff, with his son and a friend, took passage at Carson street, ascending the incline, then got off to enter the cable cars £l8 STREET RAILWAY LAW. lo descend to the level. Here there was a large crowd of people, all as usual on such occasions, eager to enter the cars; there were two trains scheduled to start ten minutes apart, of four or five cars each, standing ready; plaintiff and his son and friend got upon the rear platform of the first train ; the car was very full of passengers ; the train started and had moved but two or three hun- dred feet when plaintiff was pushed and fell to the ground, dislocated his elbow and sustained other injuries which have seriously disabled him. He brought suit against defendant for damages, alleging the fall from the car was in consequence of its negligence in so crowding the body of the car with passengers that he could not get inside, and in crowding the platform after he was upon it so that he could not get off before starting or maintain his place upon it afterwards. There was a verdict and judg- ment for plaintiff, from which defendant appeals, assign- ing for error the refusal of the court on all evidence to direct a verdict for defendant. " The court instructed the jury that if plaintiff got on the platform when he saw the car was so crowded he could not get in ; or if having got on, and then, before the car started, saw its crowded condition, but did not get off; or without any necessity for so doing remained on the platform after the car started he could not recover. But appellant alleges there was not sufficient proof of any negligence of defendant, while the proof was undisputed of contributory negligence on part of plaintiff. Undoubt- edly, as the injury did not result from any accident to the train, nor from any defect in the means of transportation, the burden of proof throughout was on plaintiff to show his injury was the result wholly of defendant's negligence. He was standing in a known place of danger, one not intended for passengers, after the car started, and then STREET RAILWAY LAW. $1$ fell or was pushed off. In other words, there are no pre- sumptions in his favor or against the defendant. How came he to be in a place of danger where he had no business to be? His place was inside the car, not on a crowded platform. The plaintiff, his son and his friend Shantz, undertake to account for this otherwise manifest negligence in substance thus : ' He got off the car when it reached the summit of the incline ; the two trains were standing there and about them was a large crowd; in looking for a car to enter, the three passengers were separated; the son got to the rear car of the first train; the conductor was standing by it and said 'there's lots of room inside here; this train is going out right away.' He immediately found his father and Shantz, repeated what the conductor had told him, and they all got on the platform to get in the car, but at the door found it was so crowded, they could not push their way in; then, oth- ers so crowded up behind them, that they could not get down from the platform. The car started and the con- ductor, who was on the platform, immediately began taking up the tickets; one passenger, by his ticket, was on the wrong car, and the conductor commanded him to get off and commenced pushing the passengers on the platform aside to enable this man to get down the steps, when plaintiff was pushed off backwards through the opening in the platform railing and injured. There was much evidence to contradict this statement of the fact, but still there was sufficient testimony to warrant the jury in finding it to be true. If true, the plaintiff, through the invitation of the defendant, was in a place of danger from which he could not extricate himself without risk of greater danger; then, by the rude manner of defend- ant's agent, he was jostled nr pushed from the car. He was on the platform of a crowded car by fault of defend- 320 STREET RAILWAY LAW. * ant, and was pushed therefrom by fault of defendant. The testimony of defendant that the car was not crowded; that, if crowded, it must have been obvious to plaintiff before he got on the platform; that the conductor did not invite passengers to get on after it was reasonably filled; that he did not rudely push or jostle those on the plat- form, was all submitted to the jury by the learned judg- of the court below in a charge which, while just, was quite favorable to defendant. That was the end of the court's duty and is the end of ours." (Supreme Court of Pennsylvania. Dennis vs. Pitts- burg and Castle Shannon Railroad Company, 15 Pitts- burg Legal Journal, 354.) [In a recent case in Nebraska it was held that a street railway com- pany is presumptively liable for the concurrent negligence of its servants and third persons resulting in personal injury to a passenger. Also that a passenger is not guilty of contributory negligence per se in standing on the front steps of a crowded street car in motion preventing his recovery for injuries received in consequence of being crowded off through negligence chargeable to the company. — Pray vs. Omaha Street Railway -Co., 62 Northwestern Reporter, 447. Ed.] Injury at Crossing— Sounding- Gong — Rate of Speed — Duty of Driver. The sounding of a gong for a considerable distance on the approach of a motor car to the junction of two streets is a sufficient warning to travelers, in the absence of a statute requiring other or different signals. Speed not exceeding 4 or 5 miles an hour is not an unusual, excessive, or dangerous rate for a motor car upon a city street. A driver is guilty of contributory negligence in failing to discover the approach of a street car, where at a point a few feet distant from the track he has an unob- structed view of the track for 200 feet, although his view immediately before reaching it is obstructed. STREET RAILWAY LAW. $21 (Supreme Court of New York. Van Patten vs. Sche- nectady Street Railway Co. 62 New York State Reports, 378.) Validity of Ordinance — Regulation of Time of Running Cars. An ordinance of a municipal corporation requiring the railway company operating lines of cars in the streets to run their cars during certain periods of the day at desig- nated intervals is valid as against a railroad company the charter of which provides that the line is to be con- structed only with the consent of the municipal author- ities, who are thereby authorized to regulate the time and manner of using the same. (Court of Common Pleas, New York. 31 New York Supplement, 147.) City Ordinance — Provision as to Speed — Change to Electricity. A provision as to speed, in a city ordinance requir- ing street railway cars to be drawn by horses or mules only at a limited rate of speed, is not repealed by a sub- sequent ordinance authorizing the substitution of electric Cars, and requiring the company to comply with all ordinances previously or subsequently passed " relating to the rate of speed." (Supreme Court of New York. Martineau vs. Roch- ester Railway Co. 62 New York State Reports, 722.) APPENDIX. The Tracks of a Street Rail-way in a Public Street are Private Property. A railway is a public highway only so far as the owners and operators are subject to the duties of common carriers, and not in the sense that any person may operate cars over its tracks without the consent of the rail way company. The charter of the City of Chicago gives no power to grant the use of the tracks of one horse railroad to another horse railroad. Where railroads are not competing roads, and the public necessities require it, the joint use of part of a track might be so taken ; but it is doubtful whether a municipality could pass an ordinance authorizing such taking without express legislative authority. Where a street railway under a valid ordinance lays its tracks in a street and operates its cars, it has not only a binding contract with the city but an easement in the street and a property right in the rails go laid and the use thereof, of which it cannot be deprived, except upon just compensation ascertained and paid. The fact that its rails are laid in a public street, does not make them public property, or give another company the right to use them without consent; and the right of the second company to connect its tracks with those of the first, does not give the right to use the tracks without permission. Tuley, C. J. : The complainant, the Chicago General Railway Company, as the assignee of, and successor to the other complainant, the West and South Towns Street Railway Company, filed their bill herein seeking a decree against the defendant to the effect that complainants have a full and perfect right to operate their cars along and over defendant's horse railway tracks in Twenty- second street, from Jefferson street to Grove street, in Chicago, without the interference of defendants ; and for a permanent injunction against defendants, restraining the defendant company, its officers, agents, etc., from any such interference, and from doing any injury to the com- plainant company's officers, agents, etc., or their property, in the operation of their cars over said route. It appears that the defendant company was incorpor- 2 STREET RAILWAY LAW. ated under an act of The General Assembly of this state, entitled "An act to promote the construction of horse railways in the City of Chicago," approved February 14th, 1859, anc * on tne 5 tn °* February, 1887, the City Council of Chicago, by ordinance, authorized the defend- ant to lay down, operate and maintain a double track railway from the center of State street to the south branch of the Chicago river, upon certain terms and con- ditions, among others, that the company shall fill, grade and pave, and keep in repair sixteen feet of the center of the street so occupied, as provided by a general ordi- nance of said city, and also as to a license fee or tax per car, it would conform to ordinance passed July 30, 1883, concerning street railways. The complainants were duly incorporated and in 1892 the Towns Street Railway Company obtained an ordi- nance from the City of Chicago authorizing it and its suc- cessors and assigns to construct, maintain and operate a street railway on (among other streets) Twenty-second street, from the east line of Grove street to the west line of Jefferson street (the 300 feet west of Grove street being over the same route the same 300 feet embraced in defendants' ordinance), which ordinance contained a section which complainants allege authorized them to use and run their cars upon the rails of that part of defend- ants' road laid upon Twenty-second street for the distance of 300 feet west of Grove street. In the year 1892, certain negotiations were commenced between one Bowen connected with complainants, and the legal counsel of the City Railway Company, for the operation of the complainants cars on Twenty-second street east of the Chicago river, but they were of an indefinite character and of no binding force. In 1894, Mr. C. L. Bonney, vice-president of the General Rail- STREET RAILWAY LAW. 3 way Company, commenced negotiations with the object of obtaining consent, or a contract, for the operation of cars over the defendant's tracks on Twenty- second street. It appears that there was a bridge at Twenty-second street, and that the approaches to the same were insecure. These were strengthened by the city at the request of the General Railway Company, and that it paid about five-eighths of the costs and the defendant company about three-eighths. The tracks of the General Rail- way Company were laid over the bridge, to the east end of same, and the defendant company relaid its tracks on the east approach, and so as to make an apparent con- nection with the complainants' tracks. No proposition for a contract or for running arrange- ments between the complainants' companies and the defendant company were ever made to the board of direc- tors of the latter company, nor does it appear that the counsel for the defendant had any express authority in the premises. All attempts at obtaining some running arrangements were fruitless, and after several months' effort in that direction, all negotiations were broken off. Thereupon, certain officials of the General Railway Company, after several flamboyant published interviews as to their intentions and the rights of their company, apparently determined to put to the test their rights to run cars upon the tracks of the City Railway Company. Having publicly announced a " street car party " to test their right to run cars on defendant's tracks, on April 4th, 189S, one of their cars was run across the bridge and down the east approach on to the defendant com- pany's tracks. The defendant company's agents and employes violently attacked the car and with axes and crowbars, totally demolished the same. Thereupon this bill was filed for an injunction. 4 STREET RAILWAY LAW. This Court is not called upon to express an opinion as to the conduct of the defendant company in destroying the complainants' car, as this is not the forum in which (for that act) complainants must seek redress. This Court can only consider that act of defendant company as a circumstance tending to show the intention of defend- ants to make all the resistance it can, to any attempt of complainants to exercise the right claimed by them to operate their cars over defendant's tracks. After a careful consideration of the evidence touching the "negotiations" referred to; the repairing of the bridge approach ; as to the laying of the tracks on the bridge and its approaches ; the payments made for the cost thereof, and other evidence tending to support com- plainants' contention that thereby the defendant became estopped to question the right of complainants to operate their cars along Twenty-second street, in accordance with the authority granted by said ordinance to complain- ants; the Court is of the opinion that the evidence is too indefinite, and is insufficient to support that contention. The proof failing to show any consent of defendant to the use of its tracks, or any leases or contracts between the parties, and there being no estoppel in pais upon the defendant, the question remains, what right, if any, has the complainant to compulsorily run its cars over defend- ant's tracks laid upon Twenty-second street. The Court is of the opinion that the General Railway Company has succeeded to all the rights of the West and South Towns Railway Company, therefore the question now is as to the rights of the General Railway Company. One contention of the complainants is, that they have the right to run their cars over defendant's tracks with- out defendant's consent, because under Section 12, Article 11, of the State Constitution, all railways constructed in STREET RAILWAY LAW. 5 this state are " declared to be public highways, and shall be free to all persons for the transportation of persons and property thereon under such regulations as may be prescribed by law." If the true construction of this provision is, that railway tracks and right of way become public highways in the sense that a road or street is a public highway, which any person can use with any vehicle that he thinks proper, then there was no necessity of complainant's obtaining either a legislative or municipal act in order to exercise the right of running cars on or over defendant's tracks, whether the same were laid on a street on defendant's private property. The court cannot conceive how it can be seriously contended that such is the true construction of the constitutional provision. It is doubt- ful whether the constitution added anything to the law as to railways being public highways. They were so adjudged to be long before the constitution of 1870 went into effect, and our Supreme Court has construed said provision of the constitution as making railways public highways " only so far as owners and operators are sub- ject to the duties of common carriers. (T. P. & W. R. Co. v. Pence, 63 Ills.. 524. See also Hoyt v. C. B. & Q. R. R., 93 Ills., 601.) Nor can it be perceived how this provision added to or gave municipalities any special power over railways, as public highways, which they did not heretofore possess. The complainants rely also on the constitutional pro- vision, Art. 2, Sec. 14, providing that " No law * * * making any irrevocable grant of special privileges or immunities, shall be passed." The constitution of the United States uses these words : " Privileges or immuni- ties," in Sec. — , Art. 4, in declaring the rights of citizens of one state in the several states of the Union, but the 6 STREET RAILWAY LAW. meaning of these words has not been conclusively settled. (Cooley Con. Lim., Sec. 396.) The provision has been held by our own Supreme Court as not to prohibit a municipality granting the use of streets for railroad pur- poses and annexing conditions thereto. It is true that rails and roadbeds in the street are, as well as the cars, property affected with public use, in that they are a part of the machinery for the transportation of all persons who may desire to be carried, but this does not make such property a part of the highway, or confer ownership upon the public. It may as well be said that the public own the public grain warehouses, because every member of the public has the right to have grain stored in them at a reasonable price, and under reason- able rules and regulations. Mr. Cooley says: "There are cases in which the State may grant privileges to specified individuals without vio- lating any constitutional principle, because, from the nature of the case it is impossible they should be possessed and enjoyed by all; and if it is important that they should exist, the proper state authority must be left to select the grantees. Of this class are grants of franchises to cor- porations." (Cooley, Sec. 394.) If we concede complain- ants' contention upon this point, it does not follow that the city could repeal, in a whole or in part, an ordinance granting a privilege to lay tracks in a street without making compensation for the injury done by such repeal. It appears also to be a contention of the complainants, that as the city owns the fee of the street, if any one puts a rail down in the street and affixes it to the freehold, it becomes a part of the freehold, and as the freehold be- longs to the public, the rails that he affixes, belong to the public, and therefore that complainant, as one of the public, has the right to use the rails so laid in the street; STREET RAILWAY LAW. 7 that such rails become as much a part of the street as the wooden block pavement laid therein. While the presumption of law in the absence of proof, is that the city owns the fee of the street, yet as a matter of fact it does not in many cases. It acquires streets in various ways, by purchase, gift, condemnation, dedication, statutory and common law; and it often occurs that differ- ent parts of one street are acquired in several, if not all of said methods. In such case, if the contention of com- plainants could be sustained, the city would own and the public have the right only in those sections of the rail under which the city owned the fee, and private owners of the fee in the remainder of the street, the balance of the rail. So far as the question at bar is concerned, it makes no difference whether the city does or does not own the fee of the street. The power and right of the city to control and regulate the streets of the city is just as great where it acquires the perpetual use of the street by common dedication, as where it has acquired in any way the fee. In either case it holds the street in trust for use as a street, and the public as to transportation or pas- sage or user of same, have the same rights in one case as in the other. It is clear that whatever right the complainant has to use the defendant's track, it must derive from the ordi- nance granted it by the city council. What are complainants' rights as to the use of defend- ant's track under the ordinance? Such inquiry necessa- rily involves the questions : ist. As to the power of the council to confer on com- plainant the right to use defendant's track. It must be admitted that under the general power conferred by the city charter to open, lay out, establish, etc., to control, regulate and improve streets, together with the express 8 STREET RAILWAY LAW. power given as to railroads by the 24th and 90th clauses of section 63, article 5 of the charter of the city, it has ample power to grant to a railroad company the right to lay down and operate horse railway tracks in the streets of the city. Clause 24 authorizes the city to permit, regu- late or prohibit the locating, constructing or laying a track of any horse railroad in any street * * * with proviso limiting the time to twenty years. The 90th clause pro- hibits the city from granting a right to lay down any rail- road track in any street of the city, to any steam, horse or other railroad, except upon the petition of the owners of the land representing more than one half the frontage, etc. These charter provisions give no express power to grant the use of the tracks of one horse railroad to another horse railroad. It seems to be settled that without legislative sanction the city cannot, under its general power, grant the right to lay down and operate horse railroads on the public streets. That the city cannot authorize one company to take the entire track of another railroad company must be admitted. The supreme court declined to express an opinion whether the, legislature itself could do this, even upon making just compensation. (81 Ills., 424.) I am of opinion that where the railroads are not competing roads, and the public necessities require it, the joint use of a part or section of a railroad track might be so taken if such taking did not materially interfere with the operations of the road whose tracks are so taken, but I doubt the power of a municipality, without express legislative au- thority, to pass an ordinance authorizing such taking. Admitting, however, that the city has this power, has it exercised it by the grant contained in the ordinance passed in favor of complainants in 1892? The supreme court of Illinois holds, that in the absence of a clearly STREET RAILWAY LAW. 9 expressed intention to the contrary, the courts will not construe a railway charter so as to authorize one com- pany to take the property of another already devoted to a particular public use, for the purpose of applying it to the same public use. (C. & N. W. Ry. Co. v. Chic. & E. R. Co., 112 Ills. 598.) A like rule must prevail as to the construction of an or- dinance. Sec. 13, of that ordinance provided, "Sec. 13, Said company shall have the right to connect its tracks with those of the Chicago City Railway Company, on Twenty-second street at or near Grove street, but shall have no right to construct any tracks east of the Chicago river on said street, without the consent in writing of said Chicago City Railway Company. Said company shall also have the right to operate its cars over tracks not owned by it, upon such terms and conditions, by lease or contract as may be agreed upon between the companies owning such respective tracks, or otherwise, not in con- flict with any of the conditions of this ordinance, or the general ordinances of the city," with a provision added, that not to exceed five cents should be charged for one continuous ride over the lines over which the company should operate its cars within the city limits. Complainants allege that it obtains the right to use the defendant's tracks by a clause giving it the right "to con- nect its tracks with those of the Chicago City Railway Company on Twenty-second street." Under the rule of construction laid down in 112 Ills, is this position ten- able? Laws giving railroads the right "to connect," "to join," " to unite," their tracks with those of another rail- road, have been construed in several cases by courts of last resort. In the 121 Ills., the question, was as to the rights conferred by a charter authorizing the company 10 STREET RAILWAY LAW. " to cross, intersect, join and unite with any other rail- road." The court held that these words did not author- ize or require the railroad companies to join in the use of such property as might be necessary to accomplish the purposes of both railroads, and that the terms "join and unite as used, were clearly intended to authorize merely the bringing together and the forming of a physical union or connection between the tracks of the proposed road and that of the one already built." (Ills. C. Rw. v. C. B. & Q. R. R. 121 Ills. 483.) Among other cases to the same effect, see A. T. & S. F. R. R. v. B. & O. R. R. 110U. S. 675.) This brings us to the discusssion of the rights acquired by complainant to use the tracks of defendant by virtue of the provision in section 13. " Said company shall also have the right to operate its cars on tracks not owned by it, upon such terms and conditions, by lease or contract, as may be agreed upon between the companies owning such respective tracks or otherwise." The com- plainants have no consent, lease, or contract, but contend that under the terms "otherwise" they can compulsorily exercise the right to use the tracks of defendant com- pany, and it follows, of any other company also. The word "otherwise" means "another and wise man- ner," "in a different manner." This necessarily implies other legal manner. If just compensation has not been made, and is a pre-requisite to the exercise of the right given by the ordinance, and there is no consent or con- tract or estoppel upon the defendant, then the complain- ant, in its attempt to run its cars on defendants' tracks, was a mere trespasser. The term "otherwise" cannot be construed as giving the right to commit a trespass. Admitting the validity of the ordinance, can the com- plainants exercise the power granted to use defendant's STREET RAILWAY LAW. II tracks without first making just compensation? This involves the question whether or not defendant has any property rights or interests which will be taken or damaged by the exercise of the authority granted in complainants' ordinance. It is provided in the bill Of rights (which may be said to be the soul of the constitu- tion) that, "private property shall not be taken or dam- aged for public use without just compensation ; compen- sation when not made by the state shall be ascertained by a jury in the manner provided by law." Has the defendant, by laying down its tracks and operating its railroad thereon, under the ordinance granted it in 1887, acquired any property rights or interest which will be taken or damaged by a joint use of its tracks by the complainants? A great many authorities have been cited by complainant and defendants from many states, bearing upon this question, but the first inquiry should be how have our own state courts spoken upon the point in issue? In C. & W. R. R., v. C, St. L. & P. R. R. Co., where the question was, should injunction issue against one railroad constructing a railroad crossing over the tracks of another laid in a public street, Judge Bailey, now of the supreme court, says: "It cannot be doubted that the complainant, by laying its tracks and building its railroad in Wallace street, after having obtained permission and authority so to do from the town, acquired a perpetual easement on the street * * * As we said, in C. & N. W. Ry. Co., v. Village of Jefferson, 14 Brad., this easement is a property right, and it is as much protected from unlawful invasion as any other property, nor can it be taken or damaged for public use without just compensation. It seems clear that the construction of another road across that of complainant, though built on the same grade, is a 12 STREET RAILWAY LAW. taking of complainants' property for public use within the meaning of the constitution." (15 Brad., 592.) In People v. W. Div. Ry. Co., 118 Ills., p. 118, the court holds: "The privilege of the use of the public streets of a city or town, when granted by ordinance, is not always a mere license and revocable at the pleasure of the muni- cipality granting it, for if the grant is for an adequate consideration, and is accepted by the grantee, then the ordinance ceases to be a mere license, and becomes a valid and binding contract." The court held an ordi- nance repealing the grant void. In City of Quincy v. Bull, 106 Ills., the court says : '♦The ordinance of August 7th, 1873, and the accept- ance by Prince, constituted a contract between him and the City of Quincy by which there was granted the right of way claimed * * * This privilege of use of the streets by Prince is not a mere license revoc- able at the pleasure of the city council, but it is a grant under an express contract for an adequate consideration received and binding as such." The Supreme Court has held in the case of People vs. West Division Railway Company, 118 Ills., 118, where the city council undertook to force the company to extend its line to Lawndale, that "in the original ordi- nance no right to alter or change the terms upon which the railroad company accepted the ordinance was reserved, and in the absence of such reservation we are aware of no principle upon which the city without the consent of the company can impose upon it other or additional obligation." And in Parmelee vs. Chicago, 60 Ills., 267, held, that an ordinance granting a right of way in a street requiring the company to keep in repair the portion of the street occupied by its tracks, was a valid contract which could not be impaired by subsequent leg- STREET RAILWAY LAW. t$ islation. Citing and following Chicago vs. Sheldon, 9 Wallace, U. S. 50. In Chicago Municipal Gas Company vs. the Town of Lake, 130 Ills., 54, an ordinance was passed authorizing the laying of gas mains, etc., in the public streets. This the town attempted to repeal. The court says of the first ordinance : " If this was a mere license then it was revocable at any time before it was acted upon (M. C. Ry. Co. vs. C. W. D. R. Co., 37 Ills. 317). The privi- lege of the use of the public streets of a city or a town when granted by ordinance is not always a mere license and revocable at the pleasure of the municipality granting it, for if the grant was for an adequate consideration and is accepted by the grantee, then the ordinance ceases to be a mere license and becomes a valid and binding con- tract, and the same result is reached where in case of a mere license if it is, prior to its revocation, acted upon in a more substantial manner so that to revoke it would be inequitable and unjust." It has also been held in this state where a party made a deed of land to the city for a street upon condition that the street should always be maintained as of a certain specified width, that there was an implied obligation on t"\e part of the city to maintain it as a street, and that the grantor had by reason thereof an interest in the street which could not be taken away from him without just compensation. (See Johnson vs. F. & M. Rw., 1 1 1 Ills., 417. Central City Rw. vs. Ft. Clark Rw. 81 Ills., 424). In that case the city council passed an ordinance giving the Fort Clark Company the right to use three blocks of the Central City Railway tracks for the purpose of mak- ing connection with tracks of its own on two streets run- ning at right angles with the Central City Railway tracks. The Fort Clark Company commenced condem- *4 STREET RAILWAY LAW. nation proceedings to ascertain the just condensation to to be paid for the joint use of the three blocks of track sought to be taken. The Central City Railway filed a bill to restrain the condemnation proceedings. The supreme court says ■ "The question then is, under the laws of this state, can a competing horse railway company in an incorporated city acquire by compulsion a title to, or the jcint use of the track and superstructure of another like corporation and for the express purpose of making the part so compulsorily taken, a portion of its lines * * * * Proceedings might be instituted to condemn the entire road * * but that one competi- tive road can bisect another road here and another road there, at a different point, thus leaving an unproductive fragment to the first proprietor, we do not believe and have seen no authority giving countenance to a doctrine in its operation so unjust and at war with just principles. And we are at a loss to understand how this part of appellants' franchise occupying the most populous and business part of the city can be operated by their com- petitors." In that case the ordinance not only authorized the use of three blocks of track but declared that the public interest forbade the laying of any more tracks in the three blocks. If the contention of the complainants in this case is capable of being sustained, the joint use of the tracks of the Central City Railway was not a taking of its franchise or of its propertj', but merely the exercise of a right by the city to control the use of the public s'reet. The court in effect holds that the rights of the Central Company in the streets were a valuable franchise and property right, and that the < ffect of giving a joint use was practically to destroy the franchise of the Central STREET RAILWAY LAW. 1 5 Company obtained by legislative authority, and this the city, it held, could not do. Mr. Dillon in his work states the law clearly and con- cisely : " As special legislative authority is necessary to enable a company to construct a passenger railway in the streets, the effect of such authority, when obtained and acted upon, is to give the company a property in the franchise and road, and hence, no rival company has the right to use the track of the company that laid it down." He then states, "A grant of authority to construct a street railway is not exclusive and the legislature may, without compensation, authorize a second railway in the same street," and discusses the question as to the power to give such an exclusive grant, and proceeds : " But whatever may be the extent of the legislative power in this respect, it is clear that the legislature cannot without compensation to the first company, authorize the second company to take or use the tracks of the first, although, with compensation this might be done under the power of eminent domain, if in its judgment the public good required it." Among other cases from other states, cited for com- plainants, the following are directly in point : Jersey City & B. Co., vs. Jersey City & H. R. R., 20 N. J. Equity 61. This is a leading case and contains an able discus- sion of the authorities. It holds, among other things, that because the rails were laid in a public street, the rival company, as a part of the public, did not have a right to run cars upon such rails, and that the iron rails and superstructure were not, by laying tbem in the pub- lic street, abandoned or given to the public, any more than stone steps, iron railings, posts, vault covers or flag- ging, placed within the limits of a street are abandoned or given to the public, That while persons using the 1 6 STREET RAILWAY LAW. street may cross the rails, or even in using the street may drive occasionally upon or along the tracks, yet no one would be allowed to have a carriage constructed espec- ially to pass over the track and adapted to no other part of the street, and by it appropriate the complainant's property to his own use." Citing many cases, and also the report made by Judge Redfield to the legislature of Massachusetts on the case of the Broadway Rw. Co. vs. The Metropolitan Rw. Co., referred to him by the Supreme Court of Massachusetts, containing a most com- plete exposition of the law as to the rights of railroads in public streets. ( i Redfield Rw., 638.) In Citizens' Coach Co. vs. Camden Horse Rw. Co., 33 N. J. Eq., 26, there is found a valuable decision to the same effect as that found in the 20th, N.J. Eq., and hold- ing that a coach or omnibus company would be enjoined from using the rails of the horse railway company in com- petition with the horse railway company. See 36 Ohio St., 251. That, where tracks are laid in a street for railroad purposes, " the material thereof remains private property of the company and for such purpose it is subject to the use and control of the owner exclusively." That a rival company should not appropriate such property until a compensation is first made by the latter to the former company, and, "that the municipal authorities have no more power to fix the amount of compensation to be paid for the joint use of the material, than it has to determine the compensation to be paid to other owners of private property taken for the same use." (See also 44 La. St., 58; 67 Ills., 147; 32 Barbour, 361; 96 Ills., 274; in N. Y., 1; 97 Ills., 506; 49 la., 147; 100 Ills., 21; 75 Md., 245; 65 Tex., 502. It fol- lows from these authorities that the City Railway Com- STREET RAILWAY LAW. 1 7 pany has a property right and interest in the rails laid in the street, and in the use thereof, of which it cannot be deprived without just compensation first ascertained and paid. It is unnecessary to exactly define the extent of this property right, as, if it exists at all, it is entitled to protection as private property, which cannot be taken for public use without compensation. The property of a corporation can no more be taken and given to another corporation for public use, than, can the property of a private individual be taken and given to a corporation for public use. Corporations stand before the law- upon the same footing as natural persons, and are entitled to the same protection of their property in every respect, no less and no more. Property belonging to a corporation is as much " private property " as if the same belonged to a natural person. It is argued that if the Court is of the opinion that defendant company is injured in its property rights the Court can ascertain the extent of the injury, and direct compensation and if necessary so to do, may impanel a jury therefor. In addition to the clause in the bill of rights heretofore quoted, Sec. 14, Art. 11, provides, that, "the property and franchises of incorporated companies may be taken for public use, the same as of individuals, and that the right of trial by jury shall be held inviolate in all claim for compensation which in the exercise of said right of eminent domain, any incorporated company shall be interested for or against the exercise of said right." " The defendant has a right to a jury trial as to the compensation it is to receive when in the exercise of the right of domain its property is sought to be taken for public use, and the bill of rights declares that such compensation shall be ascertained by a jury as provided by law." 1 8 STREET RAILWAY LAW. The legislature has provided a law proceeding under the eminent domain act, passed in pursuance of the con- stitutional provision, and the opinion of the Court is that the defendant has a right to insist that proceedings to condemn its property for public use shall be taken under that act. (See Cate vs. Allen 149 U. S. 451.) There would be no more difficulty in ascertaining the value of the property right sought to be taken under the com- plainant's ordinance than there would be in ascertaining the damage occasioned by taking a crossing or a railroad. Not only is the remedy at law complete, but until that remedy is pursued to a verdict and payment of compen- sation it appears chancery could have no jurisdiction over the rights of the parties in the joint use of the tracks. The manner of the joint use and the extent of complainants' use of the tracks, as well as the compensation must be ascertained at law before a Court of chancery can interfere. It would be inequitable and unjust to permit complainant to use defendant's tracks until that just compensation is first ascertained and paid. The complainants' right to «use the tracks is not complete until that is done. The Court has attentively considered the arguments and brief of the counsel for complainant and the many cases they have cited. Many of them bear upon the question as to the general powers of the City in the con- trol and regulation of streets, and others are to points that are not contested, as for instance, that the City can- not grant to a railroad company the exclusive use of a public street ; that the public authorities have no right to sell or give away streets to railroad companies; that the City cannot divest itself of its control over public streets, that the franchises and property of a corporation may be taken for public use, or for other or different STREET RAILWAY LAW. 1 9 public use, and others of like character. Some of the defendant's authorities cited, tend to sustain their conten- tion, that a railroad occupying under a license to lay its tracks in a public street, thereby acquires no ownership or property rights in the street, and that such tracks when laid cease to be private property, that a city can author- ize one railroad to use the tracks of another railroad laid in public streets, and that when compensation is to be paid it may be ascertained in the mode directed by ordinance or by court of chancery, but the cases most directly bearing upon the points directly in issue in this case, are from foreign states, and do not commend them- selves to the judgment of the Court. It is unnecessary to refer to more than two or three of these cases. It is apparent that in the decision bearing upon these ques- tions, regard must be had to the provisions of the City Charter, and the constitutional provisions guaranteeing the rights of private property. One of the strongest cases cited by the defendant is that of Covington Street R. R. Co. vs. Covington S. R. R. Co., 19 American Law Rpts. N. S. 765. A bill in chancery was filed in that case by one horse railroad company to restrain another horse railroad com- pany from continuing to use tracks of Company No. 1 laid in a public street. Company No. 2 had obtained a legislative act giving it the authority to use the tracks upon "equitable terms," and had, it is to be supposed, by consent or acquiescence, entered upon and was in the use of the tracks. In that case the aid of the Court of chan- cery was sought, to oust Company No. 2 from possession. Here it is sought to put complainants in possession. The Chancellor refused the injunction, stating that it did not appear that Company No. 2 was insolvent, or that com- pensation for the joint user had ever been demanded; 20 STREET RAILWAY LAW. and held that as there was a defect in the legislative act in failing to declare the mode of ascertaining the "equit- table terms" or compensation to which Company No. i was entitled, and as to when and how it was to be paid, the chancellor could ascertain it. There is much said in the decision that partakes of the nature of obiter licta, and, that is opposed to the current of authorities. When it is stated that the Kentucky constitution does not require the "fair compensation" to be ascertained by a jury, and, to be paid before the taking as ours does (Cook vs. Com- missioners, 61 Ills.), it will be seen that the Kentucky case is not entitled to very great consideration. In the Missouri case, 15 S. W. Rpts., 1013, it appears that the state constitution submitted a charter to the voters of St. Louis, which was adopted, containing a provision that " any street railway company shall have the right to run its cars over the track of any other street railway company, in whole or in part, upon the payment of just compensation for the use thereof under such rules and regulations as may be prescribed by ordinance. The State constitution provided for the ascertainment of the just compensation for taking private property for public use, that it should be by " a jury or board of com- missioners." The court held that under the charter and constitution the City Council could give authority to a horse railroad company to use the tracks of another, and by the same ordinance appoint the board of commission- ers to assess the just compensation. The charter and the constitution being different in that case from the Chicago charter and our State constitution, the decision has but slight, if any, bearing upon the case. The defendant cites Field vs. Baring, which went up to the Supreme Court from this court, 149 Ills., p. 556, wherein it was held that the city could give no individual STREET RAILWAY LAW. II (or corporation) "any interest in a public street except so far as it is connected with a governmental purpose." That was a case where Field & Co. obtained an ordi- nance authorizing them to throw a causeway or bridge over 40 foot street, so as to connect their two stores. A property owner complained because it deprived him of light and air. The right given was for purely a private use and purpose, and the language quoted was applica- ble, but here the defendant has a property right under an ordinance passed for a governmental purpose. It is a governmental or municipal purpose to give facilities for quick and convenient transportation of the citizens over the streets, and thereby relieve its congested condition as to the resident portion, as it is to provide gas or water for the use of its inhabitants. The city when it grants its streets for either of said purposes, is exercising its powers for public or governmental purposes. The gov- ernmental or legislative powers of the city are exercised as much in opening a new street as in controlling its use, but it would hardly be contended it could go into a court of chancery to assess the "just compensation," or that it take the property therefor, or authorize a corpor- ation to take it for its own use, without compensation. The defendant obtained permission and authority to lay its tracks down on Twenty-second street, and to run its cars over the same, under a valid ordinance for a val- uable consideration. It has laid the tracks and run its cars over them for several years. It has obtained not only a binding contract with the city under the decisions of our Supreme Court, but an easement in the street, and has a property right in the rails so laid and the user thereof, of which it cannot be deprived except upon just compensation as ascertained (and paid) as provided by law. To hold otherwise would be to hold that the vast 22 STREET RAILWAY LAW. interests of horse railroads in this city, amounting to many millions of dollars, are held subject to the whim, caprice or mercy of the City Council. To protect the rights of "private property" is the duty of all courts. In truth it may be said that the con- tinued existence of our civilization depends upon the protection of private " property." The bill in this case must be dismissed for want of equity, at complainants' costs. Electric Railways on Country Roads. Electric railways over country roads, connecting widely separated cities and towns, cannot be built without consent of the owners of the fee of such roads, under the General Street Railway Act of Pennsyl- vania. An electric railway imposes an additional servitude on the land over which public roads run outside of municipal boundaries. A street railway company has no right to build any part of its line until it has the right to complete it, where it has no power of eminent domain. The Court said in part : " From these provisions, we think it is apparent that the attempt now being made to convert these city conveniences into long lines of trans- portation, connecting widely separated cities and towns by electric railways traversing country roads, was not anticipated or provided for by the legislature. The fail- ure to confer upon these companies the power of eminent domain would, if it stood alone, be sufficient to justify this conclusion. The land taken for streets in cities and boroughs is in the exclusive possession of the munici- pality, which may use the footway as well as the cartway for any urban servitude without further compensation to the lot owners. (Provost, Jr., v. New Chester Water Co., 162 Pa. 275; Reading v. Davis, 153 Pa. 360; Mc- Devitt v. People's Nat. Gas Co. 160 Pa. 367.) Nor does the construction of a street passenger railway upon the STREET RAILWAY LAW. 2$ surface of the street impose any additional servitude upon the property fronting on the streets so occupied. (Raf- ferty v. Central Traction Co. 147 Pa. 579.) But the easement required by the public by proceedings under the road laws is an easement for passage only. The owner is entitled to the possession of his land for all other purposes. We held, therefore, in Sterling's App., in Pa. 35, 56 Am. Rep. 246, that the occupancy of a coun- try road by a pipe line imposed an additional servitude upon the farm owner, while in McDevitt v. People's Nat. Gas Co., supra, we held that a pipe line laid within the limits of the street by authority of the city did not im- pose any additional servitude on the lot owner. The reason for the distinction is fully stated in the opinion in the latter case. The same distinction exists, and for the same reasons, between urban and suburban property, as to the right of corporations to occupy a highway for a street passenger railway. This, as will be seen by the cases cited above, is an urban servitude, to which subur- ban property has not been subjected by law, up to this time. The consent of township authorities justifies an entry upon the public road, so far as the public is con- cerned; but the supervisors of the townships have no power to bind private property, or subject it to a servi- tude, for the benefit of any person or corporation, other than the township and the public it represents. The carriage of passengers through the township, on their journey from one city or borough to another, by rail, is in no sense a township purpose ; and whether these pas- sengers make their journey in cars drawn by a locomo- tive over a steam railroad, or in those propelled by electricity over tracks laid upon the highways, is imma- terial both to taxpayers and to landowners along the route traveled, except as the adoption of one or the other 24 STREET RAILWAY LAW. of these modes of transportation may affect the township roads, or the private property of citizens. * * * * " The only remaining question raised in this case is over the right of a street railway to build any part of its line before it has the right to complete it. A steam railroad may enter upon any part of its line and commence build- ing, subject only to its duty to complete the line in accord- ance with its charter. The reason of this is that it is clothed with the power of eminent domain, and may enter and appropriate land regardless of the will of the owner. A street railway company, as we have seen, does not possess the power of eminent domain. It can- not build under its charter alone. It must have the con- sent of the proper municipal or local authorities, or it cannot move. If the proposed line passes through a city, borough, or township intermediate the termini, and that city, borough, or township refuses its permission, the power to build the road described in the application and charter cannot be exercised. It must be possible for the company to complete its line before it has a right, as against any city, borough, or township into which its line extends, to begin work. It is not possible for such company to complete it's line without the consent of the local authorities of the districts through which it passes; and, where this is refused in one or more of the munic- ipal or quasi municipal divisions through which its line runs, the building of its proposed road under its charter is an impossibility. Let us suppose, for purposes of illus- tration, a charter to authorize the construction of a street railway from A., through certain roads in B., C, and D., to the city of E., and that consent has been obtained from the local authorities of A., and C, and of E., but refused by the local authorities of B. and D. The pro- posed line is thereby cut up into three wholly uncon- STREET RAILWAY LAW. 2 l6s Boy, riding at invitation of motorman.' ^c 30 £ Boy, newsboy riding on car 20 - Brake, defective „ .5 Brake, necessity of n f Brakes, leaving unfastened. .-. ,, Bridge, compensation for use of 27] Bridge, compensation for use of private bridge I2 - 11 INDEX. Bridge, expenses of changing bridge for electric cars 127 Bridge, rebuilding of 271, 272 Bridge, right to cross private bridge 127 Bridge, street railway on 271 Bridge, use of by street railway 141 Bridge, use of State bridge 186 Bridge Companies, right of 141 Bridges, reasonable toll on 145 "Bucking" Car, motorman killed by 251 Building Street Railway, necessity of promptness in 112 Cable Car, runaway of 155 Cable Trains, collision of 116 California Statute 86 Care in Crossing Tracks 148 Care of Person Crossing Tracks 119 Charge for Use of Streets 178 Charter, right of city 154 Charter, expiration of 6g Charter, enlargement of power of 111 Charter, action to forfeit 86 Charter, construction of 111, 140, 299 Charter, rights and interferences of city 123 Charter, right under 198, 219 Charter, right of in Tennessee 290 Charter, power for horse car, cannot use electricity 138 Child, action for causing death of 163, 235 Child, care required for 275, 276 Child, injury to 266, 231, 240, 263, 275, 248, 293 Child, pushed from car by driver 219 Child, trespassing on tracks 219 Children, duty at crossing of conductor to use care 53 Children, duty of to look and listen S3 Cinder and Gas, damage by 82 City, power of to grant use of streets 69 Collision, apprehension of no Collision of Cable Trains 116 Collision, street car and vehicle 125, 249, 287 Collision with Buggy 283 Collision with Team 119, 256 Collision with Fire Truck 254 Collision with Wagon on Track 270, 278, 309 Collision with Truck 218 Collision with Patrol Wagon on Track 134 Collision, passenger injury in 25 INDEX. 11 Collision, injury in, by car belonging to one company and driven by employe of another company 28 Collision of Steam and Electric Car 4< Collision of Street Cars 184, 18; Compensation for Use of Street 11; Compensation for Injury from Smoke of Elevated Railway 8: Condemnation Proceedings 8i Condemnation, right of street railway to condemn right of way. . 9 Condemnation of Leased Property 22< Conductor, duty of to stop 17: Conductor, injury to 28* Conductor, care to be used by 25; Conductor, injury to by current 12; Conductor and Driver, requiring both on car 14; Connecting Lines 26; Consent of Turnpike Company Does Not Constitute Franchise. 14: Consolidation of Companies 29c Consolidation, illegal 10c Construction Company, operation by. 18c Construction, time limit of 21^ Construction of Road by Contractor % Contract for Street Paving Let by City ijt Contract to Construct on Plaintiff's Land i8j Contract, grant of charter is a 26; Contract, obligation of 29c Contractor, liability for injury of person by contractor's em- ploye 7£ Contractor, independent, negligence of 153 Corporation, power of 135 Council Cannot Consent to Use of Electricity Where Original Grant Was for Horse Ppwer Without Change of Charter. . 139 Council, power of 177 Country Road, building street railway in. . . 15 Coupon Tickets 265 Creditor, right of to maintain action against stockholders. ...... 80 Crossing, accident to driver at steam road crossing 8g Crossing, diagonal crossing of another railway 84 Crossing Crowded by Children S3 Crossing, personal injury at.... 98, 198, 210, 236, 256, 260, 312, 320 Crossing, care to be used in 168, 169 Crossing, one street railway crossing another's tracks.. . 77, 84, 184 Crossing of Steam and Street Railway, injury at no Crossing, street railway and wagon road ng Crossing, unreasonable regulation of street 130 !v INDBX. Crossing, power of a street railway in crossing streets 130 Crossing Steam Road 181, 253 Cross-walk, rail projecting above 155 Cross Streets, obstruction of by cars 266 Crowded Car 220, 234, 240 Crowding Car 234 Current, shock by 172 Curve, car rounding curve and injuring person 206, 210, 240 Cut in Street, track in 285 Damage Suit, assignment of in personal injury 65 et seq. Damage of Property 182 Deaf Person, contributory negligence of 154 Deaf Person, crossing track injury to 154 Defective Appliance, liability for .- 80 Derailment 242 Destination, passenger carried beyond 236, 239 Directors, power of 141 Disorderly Conduct, arrest for of passengers 108 Door, passenger standing against 251 Driver, assault by 152 Driver, absence of as witness 108 Driver, care required of 10, 146 Driver, care to be used by 255 Driver, care of over platform passenger 87 Driver, direction to 234 Driver, duty to stop car 175 Driver, duty of to watch horses 41 Driver, duty of 35 ■ Driver, intoxicated 176 Driver, negligence of 163, 195, 200, 269, 284 Driver, contributory negligence of ; 89 Driver, unsuitable 156 Driver and Conductor, requiring both on car 143 Ejection by Conductor of Boy Riding Without Fare 306 Ejectment of Passenger 126, 206, 244 Ejectment from Car 211 Electricity, change to and resulting change of speed 321 Elevated Railway Station 257 Elevated Railway Station, injury to persons in 258 Elevated Railway, injunction against 250 Elevated Railway, falling sparks from 278 Elevated Railway, damage from 161 Elevated Railway, injury from falling object from 166 Elevated Railway, failure to repair structure 166 INDEX. \ Elevated Railway, conditional franchise 182 Elevated Railway, passenger entering moving train 81 Elevated Portion of Electric Railway 128 et seq. Elevation of Track, prohibition of 128 Elevation of Electric Railway Tracks 128 Eminent Domain 86, 88, 220 Employer, who is 281, 282 Employer, negligence of 198 Employe, injury to, riding on car step . 14 Employe, injury to 42 Employment, contract of 101 Employer, liability of for defective appliance 80 Employe, injury to 251 Employe, of one company driving car of another company. .. . 281 Employe, injury to 139 Employe, suit of for slander by superintendent 113 et seq. Employe, value of service of 101 Employe of City, injury to 241 Engineer, supervision of ". . 230 Excavation, unguarded 316 Excavation, street car approaching : 139 Excavation, negligence in making 153 Excavation, between tracks 269 Excessive Speed 212 Exclusive Franchise 208 Exclusive Privilege of Streets 146 Expulsion from Car, wrongful' damage for 12 Expulsion from Car on Account of Wrong Transfer 26 Expulsion of Passenger from Car •. 273 Expulsion of Passenger 289 Extension of Track, right of 299 Falling in Front of Car 244 Falling From Car 21, 251, 252 Fare, discrimination in rate of 20 Fares, ringing up by boys S3 et seq. Fare, depositing in box 211 Fare, refusing to pay 211 Fare, regulating rate of...: 212 Fare, payment of 244 Fare, refusal of payment 244 Fare, exact 273 Fireman, injury to 254 Foot Board, i:ij '/try to passenger standing on 20 Foreclosure of Mortgage , , 163 Vi INDBX. Forfeiture of Franchise 86, 213, 214 Forfeiture, remitting 86 Franchise, interference with 263 Franchise, indefinite 219 Franchise, forfeiture of 213 Franchise, exclusive 208 Franchise, revocation of 223 et seq. Franchise, ordinance granting 133 Franchise, renewal of 154 Franchise, ordinance 17'd Franchise, conditional 182 Franchise, abandoning 198 Franchise, sale of 197 Franchise, lease of 115 Franchise, granting to two companies 76 Franchise, extension of time of 76 Franchise, limiting of 76 Franchise, statutory limitation of 69 Freight, implication of carrying 88 Freight, right to carry 35 Frightening of Team 294 Frightening Horse 300 Fright, injury resulting from 150, 151, 152 Front Platform, passenger riding on 21 Front Platform, boarding car by 11 Gates on Platform 307 Gongs, presumption that they are provided 299 Gong, duty to ring 300 Gong, sounding of 320 Gong, failure to ring 236, 241 Grade, raising tracks to 315 Grade Crossing 57 Grant, indefinite 219 Grantor of Land, rights reserved by in elevated railway 82 Grip Car, injury from being struck by . . . . 175 Grip Car, collision with 232 Gripman, negligence of 206 Grip Shank, breaking of 155 Guard Wires to Protect Telephone Wire 303 Handle, defective 241 Headlight, failure to provide 125 Health, question of previous 116 Hitching on, injury to boy 109 Hitching on, injury by , , IQO INDBX. VI Hitching on 53 et seq Horse, frightening of 249, 30c Horse Going on Track 13 Horse On Track, injury to 9c Horse-Power Does Not Presuppose Electricity 135 Horse-Power, grant does not presuppose electric invention. ... 13? House-Moving, interference of with wire and poles 11c Imprisonment False, action against street railway for 10S Incline, car running back on 275 Infant, injury to 41 Infant, death by car of 3= Injunction of Construction by Abutting Owner 62 Injunction, against extension of tracks by leased road 123 Injunction, right of abutting property owners to obtain ~ 62 Injunction Against Crossing of Tracks by Another Company. . 77 Injunction Against Interference with Poles and Wires by House Moving no Injunction, against sewer building interference 147 Injunction Against Construction of Street Railway in Country Road 15 Injunction, action against elevated railway for 82 Injury of Passenger in Unnecessary Fear of Collision no Injury in Collision of Cable Trains 116 Injury, personal at crossing 98 Injury, proximate cause of to passenger ' 90 Injury in Mounting Moving Car 100 Injury by Pole 20 Injury, liability for by construction company 180 Injury to Horse on Track 99 Injury by Collision 23 Injury From Fright 150, 151, 152 Injury to Minor 54 Injury to Passenger 47 Injury to Passenger on Foot Board 20 Injury, personal for starting car suddenly 131 Injury, of person by contractor's employe 79 Injury, personal on entering moving elevated railway train. ... 81 Injury by Sudden Start of Car 136 Injury to Trespasser 109 Insulation, defective 172 Interference in Use of Streets 29 Interference with Street Railway 227 , Intoxicated Passenger, failure to eject 310 Joinder of Plaintiffs 115 Vlll INDEX. Joint use of Tracks in Hands of Receiver 96 Jumping from Car no Jumping from Car, injury by 99 Legislative Grant is a Contract 57 Lessee, liability of company for negligence of 246 Lessee, of corporation formed under other laws 139 Limit, expiration of legal time limit of existence of company. . 264 Look and Listen, duty to 98 Look and Listen, failure to 226, 249 Look, failure to look along track 169 Minor, injury to 54 Mortgage, street railway 162 Mortgage, foreclosure of 100 Mortgage, right of 199 Motive Power Different on Same Track 154 Motive Power, designation of.... 291 Motorman, attention required of 13 Motorman, care required by 263. 300, 314 Moving Car, alighting from 99, 160, 236 Moving Car, jumping from 311 Moving Car, boarding of 100, 212 Negligence in Providing Headlight 125 Negligence of Conductor 35 Negligence of Driver to Watch Horses 41 Negligence, presumption of 116 Negligence, contributory 43, 247 Newsboy Riding in Car 207 Night' Cars, ordinance requiring use all night 121 Night Cars, speed of 191 Obstructing Cross Streets by Cars 266 Obstruction, laying temporary track near 216 Obstruction near Track 31.4 Ordinance, condition of 49 Ordinance Requiring Cars to Run all Night 121 Ordinance Granting Franchise 133 Ordinance, repeal of 57 Ordinance, validity of regulative 321 Ordinance, right of city to repeal i 49 Ordinance, unreasonable 130 Ordinance Requiring both Conductor and Driver on Car 143 Ordinance, violation of 214 Parks, reservation of railway rights in 86 Passenger, injury by fellow passenger 207, 310 Passenger Pushed from Car by Fellow Passenger 239 INDEX. IX Passenger, removal of from car 206 Passenger, with hands full of parcels 146 Passenger, assault of by driver 152, 153 Passenger, injury to 155 Passenger Assisting in Moving Obstacle on Track 163 Passes, right of bridge company to grant 141 Pavement, defective between tracks 169 Paving, liability of street railway for repaving 114 Paving, arbitration in 114 Paving, ordinance requiring street railway to pave part of streets 179 Paving, contract for 176 Paving by Street Railway Company of its Portion of Street 315 Paving, municipal regulation of 140 Paving 204 Paving Contractors, obstruction of tracks by - 227 Payment, refusal of fare 211 Pedestrian, injury to by rails above cross work 155 Pedestrian, injury to 176 Physician, agent of company employing physician for injured person 268 Physician, qualifications of 116 Platform, standing on contributory negligence 41 Platform, injury to one crowded from 317 Platform, gates on 307 Platform, riding on 173, 191, 230, 240 Platform, passenger thrown from 87 Pole, injury by iron falling from trolley pole 309 Pole, interference with no Pole, center pole too near track 235 Policeman, evidence of 286 Police, Pennsylvania statute authorizing appointment of street railroad police 131 Power House, location of cable power house 140 Privileges, exclusive 146 Property owners, consent of abutting 154, 313 Property, contiguous to elevated railway 161 Property, abutting 177 Public, duties to 258 Public Use, definition of 88 Public Policy, agreement contrary to 3*3 Rail, projecting above cross walk 155 Rail, projecting above street surface 169 Railroad, rights to grant use of railroad lands to street railway on 134 X INDBX. Railing, insufficiency of 191, 192 Rebuilding Street Railway " 263 Receivership, sale of property to pay expenses of receivership. . 162 Reorganization of Company 292 Repair of Streets 139 Repaying, liability for 114 Resistance Coil, adoption of 127 Right-of-Way of Car 218 Risk, assumption of by employe 42 Road, keeping level of 230 Rules, right to enforce .' 289 Runaway Car 289 Runaway of Street-Car Horses ". 41 Sale of Street Railway to Pay Receivership Expenses 162 Sale of Franchise 107 Sand Box, necessity of 116 Scat, failure to provide 49 Secretary, certificate of • 201 Sewer, obstruction of track by 294 Sewers, damage by construction of 199 Sewers, interference of building with street railway 147 Shock, injury of passengers by electric shock 306 Signal, to go ahead from foreman 139 Signal to Start 168 Signal to Start Given by Passenger 243 Signaling of Cars, duty of passenger 11 Slander, action against corporation for 113 et seq. Sleigh, upsetting of by snow along the tracks 279 Snow, removing from tracks 279 Special Assessment 204 Speed, regulation of 206, 267, 321 Speed, rate of 312, 320 Speed, excessive 13, 168, 210, 23s, 236, 249, 283, 285 Speed dangerous .... '. 88, 90 Speed, unlawful 99 Speed, limit by ordinance 169 Speed, of night cars 191 Starting Car Suddenly 49, 132, 136, 21 1, 234 Starting Car Before Passenger is Seated 47 Starting Car Carelessly 240 Starting Car, signaled by passenger 243 Statutory Prohibition Against Elevation of Tracks 12S Stealing Ride, injury to boy 109 Steam Railroad, joint negligence with 43 INDEX. XI Steam Road, accident at crossing of 8g, 260 Steam Railway, crossing tracks of 181 Sttain Road, crossing at grade 253 Steam Road, interference with trolley wire 296 Steam, use of on street railway 182 Steam Motive Power , 249 Steps, passenger standing on 7, 178, 221, 234 Step, inj ury to person on 7, 314 . Stockholders, liability of for action by judgment creditor who has had execution returned unsatisfied against corporation. 80 Stockholders, intervention of in mortgage foreclosure 100 Stock, liability of corporation for fraudulent issue of 201 Stock, liability of holder of So, Si Stopping Car, after knowledge of danger. 2Z7 Stopping, request for 171 Stopping, distance for 232 Stops of Car at other than Regular Places 40, 50 Street, duty to repair *. 308 Street, defective 308 Street, damage to 177 Street, failure to repair iog Street, franchise to occupy entire 238 Streets, control of by city 227 Streets, "adjacent" 140 Streets, exclusive use of 146 Street, grading of 242 Street, grant to lay tracks in narrow 177 Street, injury caused by defective ; 2S6 Street, injury to person crossing ig8 Street, injury to person standing in 206, 314 Streets, improvement of 176 Street, interference with use of 23 s - Streets, municipal control of 146, 263 Streets, occupancy of 272 Street, obstruction of 293 Streets, power of council to regulate crossing of 130 Streets, power of a street railway to cross 130 Streets, paving for use of 178 Street, railway in 264 Streets, right to use 3! Street, right of street railway in 177. 3 ! 3 Streets, use of in. I4 2 Streets, use of in common 29. Streets, use of, power of city to grant. .,....,. 69 et seq, Xll INDBX. Streets, use of by branch street railways to connect street rail- ways in Street, use of, compensation for, to abutting owners of property 115 Streets, unreasonable burden on 277 Superintendent, language of, when discharging employe. 113 et seq. Switches ioj Team, frightening of 235, 287, 204 Team, injury to g