(Sornfll Sam Btl^aal ICihtratg Cornell University Library KF22S9.W871894 V.2 A treatise on the law of railroads. 3 1924 019 287 360 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019287360 WOOD ON RAILWAY LAW. Volume II. SECOND EDITION. A TREATISE ON THE LAW OF RAILROADS. BY H.. G. W^OOD, AUTHOR OF " THE LAW OF LIMITATIONS," " NUISANCES,'-' ETC. Seconti lEDition. By H. D. minor, OP THE MEMPHIS BAR. IN THREE VOLUMES. VOL. II. BOSTON: THE BOSTON BOOK COMPANY. 1894. 2848 Copyright, 1894, By the Bostojs Book Compakt. ®lnibev0itB ^wsa: John Wilson and Son, Cam^bidge, U. S. A. LAW OF RAILROADS. CHAPTEE XIV. Eminent Domain. Sec. 232. Eight of, Dedned. Sec. 250. Mode of ascertaining Damage : 233. Power may be Delegated. / Notice. 234. Quantity of Land to be taken. 251. Commissioners, Viewers, etc. 235. Public use, "What is, etc. 252. Parties to Proceedings. 236. Public use : Legislative or Judi- 263. Effect of taking an Inchoate cial Question. Eight. 237. What Lands, etc., may be 254. Title. taken. 255. Interference with water-courses, 238. Franchises of one Railroad may etc. be taken for another. 256. Injuries to Riparian Rights on 239. Exclusive Grants : Presump- navigable streams. tions as to Earlier Grants. 257. What constitutes Damage. 240. What constitutes a " Taking." 258. Presumption that Commission- 241. Conditions precedent. ers estimated all Injuries. 242. Abandonment, Effect of, etc. 259. Measure of Damages^ 243. Preliminary Survey. 260. Blasting, Injuries from. 244. Right to take Materials from 261. Private ways. adjoining Lands. 262. Damages confined to the par- 245. Estate taken by Railway Com-, ticular tract. panics under Proceedings in 263. Measure of Compensation for invitum. Uses of : Remedy property of one Corporation of Land-owner for wrongful taken for its use by another. Use. 264. What benefits may be allowed. 246. When the Right of Entry vests 265. Opinion of experts as to Value. in the Corporation. 266. Damages in Trespass. 247. Trespasser, when. 267. Power not exhausted by First 248. Statutory remedy, exclusive. Taking. 249. Statute authorizing Proceedings to condemn : Provision for compensation'. 268. Costs. Sec. 232. Right of, Defined. — The right of the sovereign to take the property of private persons for public purposes is an important and essential right, and one which is conceded under all forms of government, and has always existed. In this country, however, a limitation is placed upon the power by both the Federal and State VOL. II. — 1 810 EMINENT DOMAIN. [chap. XIV. Constitutions, and it can only be exercised tov public pi:rposes,i and upon just compensation being made to the owner of the property taken.2 The right is possessed by the State as a necessary attribute 1 The legislature cannot authorize the ■ taking of private property for a private use even upon just compensation made ; so also it cannot compel the transfer of one man's property to another without the owner's consent. Beekman v. Saratoga, &c. R. Co., 3 Paige Ch. (N. Y.) 45 ; 22 Am. Dec. 679 ; Scudder v. Trenton, 1 Saxton (N. J.) 694; 23 Am. Dec. 756; Embury v. Conner, 3 N. Y. 511 ; 53 Am. Dec. 330. But a statute authorizing the taking of piivate property with consent of the owner is valid though the taking he for a private use, and if a land owner ac- cepts compensation under such a statute his right to object to the taking on the ground that it is for a private use is lost. The constitutional protection against the taking of private property is one which a property. owner, may waive, it having been made for his benefit. Embury v. Conner, 3 N.,Y. 511 ; 53 Am. Dec. 325. ^ Vattel's Law of Nations, Bk. I., ch. 20. Pollard v. Hagan, 3 How. (U. S.) 212 ; Brown v. Beatty, 34 Miss. 227 ; McLauchlin v. Charlotte E. Co., 5 Rich. (S. C.) L. 583 ; Freedle v. North Carolina K. Co., 4 Jones (N. C), L. 89 ; Mount Washington Road Co., in re, 35 N. H. 134 ; Hamilton v. Annapolis R. Co., 1 Md. Ch. 107 ; Nichols v. Somerset, &c. R. Co., 43 Me. 356 ; Evansville, &o. R. Co. II. Grady, 6 Bush (Ky.), 144; Mims v. Macon, &o. R. Co., 3 Ga. 333 ; Enfield TollBridge do. v. Hartford, &c. R. Co., 17 Conn. 40 ; Rensselaer, &c. R. Co. v. Davis, 43 N. Y. 137 ; Edgewood R. Go's Appeal, 79 Penn. St. 257 ; Giesy ». Cin- cinnati, &c. R. Co., 4 Ohio St. 308 ; Beek- man V. Saratoga, &c. R. Co., 3 Paige Ch. (N. Y.) 45 ; Buffalo, &c. R. Co. y. Brain- ard, 9 N. Y. 100 ; Lewis on Em. Dom. § 1 ; Dillon on Mun. Coi^p. § 582. The right of eminent domain by which the State is authorized to take private property for public use, when the necessities of the country require it, is an inherent right of the State government ; although, under the Constitution, compensation must be made to the owner of property so ^ken. Young V. Harrison, 6 Ga. 130. When a State grants a tract of land an estate in fee passes, as much as if a. private indi- vidual grants it ; but in each case it is subject to the power of being taken for public use on compensation .being made. The right rests upon the principle that individual interests muSt be subservient to those of the public, and must yield when the' public exigency requires, but then only upon ample compensation. This doctrine holds in respect to a corpo- rate franchise. Enfield-ToU Bridge Co. v. Hartford, &c. R. Co., 17 Conn. 49. All grants of land made by a State, although irrevocable, are subject to the right of eminent domain, unless if is expressly re- linquished. A grant to a railroad company of the right of way over lands before granted to the trustees of a canal company, does not violate the grant made by the State to those trustees. The~ effect likely . to be pi'oduced by the opening of the rail- road in diminishing the revenues of the canal, is no violation of the contract be- tween the State and the trustees. Illinois, &c. Canal v. Chicago, &c. R. Co., 14 lU. S14. It is a power essentially different from that of taxation, in regard to which there is no constitutional .restriction, and no guaranty for its just exercise, except in the discretion of the legislature. People V. Mayor of Brooklyil^ 4 N. Y. 419 ; Cin- cinnati, &c. R. Co. V. Clinton Co. Com'rs, 1 Ohio St. 77 ; Cheaney v. Hooser, 9 B. Mon. (Ky.) 330. See Richardson v. Ver- mont Central R. Co., 25 Vt. 465 ; Bennett V. Boyle, 40 Barb. (N. Y.) 551 ; Young ». Buckingham, 5 Ham. (Ohio) 485 ; Works V. Junction R. Co., 5 McLean (U. S.), 425 ; Bailey v. Philadelphia, &c. R. Co., 4 Harring. 389 ; People v. City of St. Louis, 11 111. 351 ; Spooner v. McConnell, 1 McLean (U. S.), 337 ; Pennsylvania v. Wheeling Bridge Co., 13 How. (U. S.) 518 ; Attorney-General w; Hudson River R. Co., 9 N. J. Eq. 526 ; American Print Works V. Lawrence, 23 N. J. L. 9. The exercise of this power does not infringe the constitutional provision designed to protect SEC. 232.] EIGHT OF, DEFINED. 811 of sovereignty, and may be exercised not only in its own behalf, but also in favor of any corporation or individual for a public purpose} The right is not derived from the Constitution, hut is inherent in the, State, and a natural and necessary incident of sovereignty. The Constitution is merely a limitation upon the right, and except for such limitation, compensation would be discretionary with the legis? lature."^^ The question as to the manner in which it shall be the obligation of contracts ; and neither the fact that the property is held under a mortgage, nor that it belongs to a corpora- tion chartered hy " State' law, exempts it from the operation of this principle. Ala- bama, &c. R. Co. V. Kenney, 39 Ala. N. s. 307. It is not restricted by any dis- ability of the owner of the land appro- priated. When, therefor*, the State authorizes the appropriation of private property for the public good, the consent of the owner is not necessary. The owner has the right, alone, to demand in the mode pointed out by law, the compensation secured by the constitution, as a condition precedent to the vesting of the fee in the company ; but has no power of resistance. East Tenn., &6. R. Coi v. Love, 3 Head (Tenu.), 63. The right rests upon the public necessity, and can only be exercised where such' necessity exists. But this necessity relates rather to the nature of the property cuivd the uses to which it is applied than to the exigencies of the particular case ; and it is no objfection to the exer- cise of the power, that lands equally feasible could be obtained by purchase. Giesy v. Cincinnati, &c. E. Co., 4 Ohio St. 308. A statute authorizing one rail- road corporation to acquire by purchase all the property of another railroad corpora- tion, with a proviso that nothing in the act contained should in any wise affect any right whatever of any stockholder in the latter, and that such purchase should be made with the consent of the stockholders of the latter company, was held to require the consent of all the stockholders to the transfer. 1 Weir V. St. Paul, &c. R. Co., 18 Minn. 155 ; Leisse v. St. Louis, &c. E. Co., 2 Mo. App. 105. In the exercise of the power of eminent domain the legislature are the exclusive judges of the degree and quality of interest which are proper to be taken and dedicated to the public use, as well as of the necessity of taking it. De Varaigne V. Fox, 2 Blatchf. (U. S.) 95. The pro- priety of- taking private property for a public use is not a judicial question; but one of political sovereignty, to be deter- mined by the legislature, either directly or by delegating the power to public agents, proceeding in such a manner and form as it may prescribe. ^ People v. Smith, 21 N. Y. 565. The principle that no action can be maintained for private injuries done by persons in the execution of a public trust, acting with due skill and cautlbn, and within the scope of their authority, does not apply to a private cor- poration authorized by the legislature to construct works of public improvement by private capital for private emolument. The grantee of a franchise for private emolument may be vested with the sovereign power to take prihate property for public use on making compensation, hut is not clothed with the sovereign's immunity from (resulting damages. _ The power conferred leaves the common-law liability for in- juries done in the exercise of the , author- ity precisely where it would have stood if the land had been acquired in the ordi- nary way. Tinsman v. Belvidere Delaware K. Co., 26 N. J. L. 148. The State has the constitutional power and right to authorize the taking of private property for the purpose of making railroads or other public improvements of the like na- ture, paying the owners of such property a full compensation therefor, whether such public improvements are made by the State itself, or through the juedium of a corporation or joint stock company. Bloodgood u. Mohawk, &c. E. Cp., 18 Wend. (N. Y.) 9. ^ Central Branch TJn. Pac. R. Co. v. Atchison, &c. R. Co., 28 Kan. 453. 812 EMINENT DOMAIN. [chap. XIV. exercised addresses itself to the legislature as a question of propriety,, fitness, expediency, rather than as a question of power. It is com- petent for the government, in its discretion, to exercise it through its public officers, or agents, or through public or private corpora- tions, or private individuals.'' The right exists in the States as an incident of sovereignty, whether it is expressly conferred by the Constitution or not ; ^ and in the exercise of this right they are not 1 Ash u. Cummings, 50 N. H. 591 ; Secombe v. Railway Co., 23 Wall. 108 ; Wfeir 0. St. Paul, &c. R. Co., 18 Minn. 155. 2 Boom Co. V. Patterson, 98 T7. S. 403; Brown v. Beatty, 34 Miss. 227; Harvey v. Thomas, 10 Watts (Penn.), 63. No principle is better established than that the right of eminent domain is inseparably attached to national empire and sover- eignty ; and that, by the exercise of this right, a nation may surrender the rights of individual subjects or citizens. Jones V. Walker, 2 Paine (IT. S.), 688. And that article of the Constitution, which prohibits the taking of private -property for public use without just compensation, restrains the power of the general govern- ment, and was not intended to apply to the States. Withers v. Buckley, 20 How. (U. S.) 84. Every State has the right to make public roads through United States lands Ijring within it, under its power of eminent domain. The United States have no power to interfere with this right, the State legislatures having excln- sive jurisdiction. United States v. Rail- road Bridge Co., 6 McLean (U. S.), 517. The general rights of eminent domain within the limits of a State are vested in the State government, in which the ulti- mate title to all the land within the State may be said to be. Since the State has the general power to take private property for "public use," in any particular case it devolves upon one objecting to such, taking to show that it is an exception to the general power. The State itself, in taking private property for "public use," may make the application itself, or may make it through the agency of others, whether domestic or foreign corporations, or a fortiori, foreign governments, or a member of the domestic govemment, or even_ the Federal government itself. A State may exercise a, power primarily for her own benefit, — that being- a public use, — through the agency of the Federal government, although the Federal govem- ment is to receive by the agency assist- ance in executing its own general duties. Such a law is constitutional where it pro- vides a certain and adequate remedy, by which the owner of the property taken can obtain his compensation without unrea- sonable delay ; and in this case the act pro- viding for the impanelling of a jury to assess the damages, and for an order for the payment of the amount found due into the treasury, to be paid to the owner of the land upon proof of his ownership, was held to provide for a taking by due process of law. Gilmer v. Lime Point, 18 Cal. 229. It is incident to the sovereignty of every government that it may take pri- vate property for public use, of the neces- sity or expediency of which the govemment must judge ; but the obligation to make just compensation is concomitant with the right. Cooper v, Williams, 7 Me. 273 ; Spring V. Russell, 3 Watts (Penn.), 294 ; Henry v. Underwood, 1 Dana (Ky.), 247 ; O'Hara v. Lexington, Ssc. R. Co., 1 Dana (Ky.), 232; Perry v. Wilson, 7 Mass. 395 ; De Varaigne v. Fox, 2 Blatchf. 95 ; Parkham v. Decatur County, 9 Ga. 341 ; Donnaher v. State, 10 Miss. 649 ; Brown' v. Beatty, 34 Miss. 227 ; Coster v. Tide Water Co., 15 N. J. L. 54 ; Varick v. Smith, 5 Paige (N. Y.) 137 ; Harris v. Thompson, 9 Barb. (N. Y.) 350 ; Bailey V. Miltenberger, 31 Penn. St. 37 ; Harding ». Goodlett, 3 Yerg. (Tenn.) 41 ; Stark v. McGowen, 1 Nott. & M. (S. C.) 387 ; Lindsay v. Commissioners, 2 Bay (S. C), 38 ; Ford v. Chicago, &c. R. Co., 14 Wis. 609. The legislature cannot itself exercise or delegate the power of seizing and appropriating, without compensation, the land of one person for the private SEC. 232.] EIGHT OF, DEFINED. 813 subject to the control of the general government.^ But the general government possesses the power, and may exercise it in any of the States so far as is necessary for the execution of its constitutional powers,^ or it may exercise it through the State. Indeed, from the time of the formation of the government it has been in the hahit of using, with the consent o^ the States, their officers, tribunals, and institutions as its agents ; and their use has not been regarded as violative of any principle, or as in any manner derogating from the sovereign authority of the Federal government.^ But there is very domain, being in derogation of private right, is to be strictly construed. The use of property which has been taken by right of eminent domain must be held in accordance with and for the purposes which justified its taking. The right of the State to take private property without the owner's assent, oA compensation made, exists in her sovereign right of eminent domain, and can never be lawfully exer- cised unless supposed and intended to benefit the public. Lance's Appeal, 55 Penn. St. 16. The right to take land under this power is not restricted by any disabilities of the owner. East Tenn., &c. B. Co. V. Love, 3 Head (Tenn.), 63. 1 Boom Co. V. Patterson, 98 U. S. 403. 2 Kohl V. TJnited States, 91 'U. S. 367 ; MaJtter of United States, 96 N. Y. 227 ; ' Darlington, v. United States, 82 Peniy. St. 382 ; People v. Humphrey, 23 Mich. 471. 8 Field, J., in United States v. Jones, 109 U. S. 613 ; Ft. Leavenworth E. Co. V. Lowe, 114 U. S. 531-532 ; Matter of United States, 96 N. Y. 227; Burt li. Mer- chants' Ins. Co., 106 Mass. 365 ; Eeddall V. Bryan, 14 Md. 4i4; Gilmer v. Lime Point, 18 Cal.^ 229., It is well settled that it may lay aside its' sovereignty, and as a petitioner enter the State courts and there accomplish the same end through proceed- ings authorized by the State legislature. If the State may delegate its power to a .private corporation of another State, for the benefit of a ■ canal ' located within its borders, as was held by this cdurt in the Matter of Peter Townsend, 39 N. Y. 171, so it may to an independent political cor- poration where the rise is public and the convenience shared by its own citizens. Gilmer v. Lime Point, 18 Cal. 229 ; Burt V. Merchants' Ins. Co., 106 Mass. 356. ■While private property cannot be taken benefit of another. Hall v. Boyd, 14 6a. 1. Royston v. RoystoHj 21 Ga. 161 ; Nes- bitt V. Trumbo, 39 111. 110 ; Burning v. New , Orleans, &c. Banking Co., 12 La. An. 541 ; Hoye v. Swan, 5 Md. 237 ; Dickey v. Tennison, 27 Mo. 373 ; Concord K. B. V. Greely, 17 N. H. 47 ; Dunham V. Williams, 36 Barb. (N. Y.) 136 ; Grim V. Wissemberg S. Dist., 37 Penn. St. 433. The provision in the Constitution, declar- ing that "private property shall not be taken for public uses without just compen- sation," does not prohibit the legislature from authorizing a temporary exclusive occupation of the land of an individual, as the incipient proceeding to the acquisi- tion of a title to it, or to an easement in it for a public use, although such occupa- tion may be more or less injurious to the owner. But such occupation becomes un- lawful, unless the title or the easement is acquired within a reasonable time ; other- wise, the occupiers become trespassers ab initio. In the case of temporary occupa- tion by a railroad company two years, it was held, under the circumstances of the case, not an unreasonable time. Nichols V. Somerset, &c. R. Co., 43 Me. 356. The provision in the Constitution, that the people are deemed to be the original owners of the land, declares an absolute and uncontrollable rule of political sov- ereignty, and not a presumption of pres- ent title available to the people in an ejectmenf. People v. Trinity Church, 22 N. Y. 44. The title' to property is always held upon the implied condition that it must be sun'cndered to the government either in whole or in part when the pub- lic necessities evinced according to the established forms of law demand. People V. New York, 32 Barb. (N. Y.) 102. The authority to exercise the right of eminent 814 EMINENT DOMAIN. ^OHAP. XIV. strong authority for the view that the right of eminent domain ex- ists in a state only for its own purposes, and that an act of the legislature authorizing the condemnation by State commissioners of land to be turned over to the United States for lighthouse or similar , purposes is unconstitutional and utterly void.^ These cases do not oppose the recognized rule that the Federal government may exer- cise the power of eminent domain within a State, but they insist, with much reason, that the State cannot exercise the power on behalf of the United States.^ Eminent domain then may be defined as the rightful authority, which exists in every sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand.^ It will be observed that provision for compensation to the individual whoge property is taken is no part of the definition, though it is now made a condition precedent to the exercise of the right, by the constitution of every State as well as of the United States. In this country therefore the exercise of the power is limited to taking for a public use and upon just compensation being made.* Territorial governments may exercise the power, but only by virtue of a delegation of it by Congress.^ for public purposes without just compen- contrary view has sometimes been taken, sation, this need not be given in all eases Thus, in Burt v. Merchants' Ins. Co., 106 concurrently in point of time with the Mass. 356, 8 Am. Eep. 339, the court held actual exercise of the right of eminent that the legislature of the State might domain. It is enough if an adequate and delegate the right of eminent domain to certain remedy is provided whereby the an agent of the United States for the pur- owner of such property may compel pay- pose of obtaining land within the State ment of his damages. Bloodgood v. Mo- for a postoffioe site. See also Gilmer v. hawk, &'c. E. Co. , 18 Wend. (N. Y.) & ; ■ Lime Point, 18 Cal. 229; HeddaU v. Bryan, Lyon V. Jerome, 26 Wend. 485 ; People v. 14 Md. 444. Hayden, 6 Hill (N. Y.), 359 ; Rexford v. » This is Mr. Cooley's definition. See Knight, 11 N. Y. 308, This means rea- Cooley's Const. Lini. (4th ed.), 652 [524- sonable legal certainty. Chapman v. Yates, 525]. See also Pollard v. Hagan, 3 How. 54 N. Y. 146; Sage v. Brooklyn, 89 N. Y. (U. S. ) 23 ; Vattel's Law of Nations, c. 20, 189- § 34 ; Lewis on Em. Dom., § 1. 1 In .People v. Humphrey, 23 Mich. * Chicago, &c. E. Co. v. Dunbar, 100 471 ; 9 Am. Eep. 94, Judge Cooley, 111.110; Boston, &o. R. Co. w. Salem, &c. delivering the opinion of the court, up- E. Co., 2 Gray (Mass.), 1 ; Grand Eapids, holds this view with great vigor. The &c. R. Co. v. Van Driel, 24 Mich. 409 ; same view is taken in Darlington w. United Seoombe v. Milwaukee, &c. R. Co., 23 States, 82 Penn. St. 382 ; 22 Am. Eep. Wall. (U. S.) 108. 766 ; Jones v. United States, 48 Wis. » Warren v. First Div. of St. Paul, &c. ^8S- . K. Co., 18 Minn. 384. The Cherokee Nation 2 Darlington v. United States, 82 Penn. is not a sovereign state, and therefore does St. 382 ; 22 Am. Eep. 766. However, a not possess the power of eminent domain. SEC. 233.] POWER MAY BE DELEGATED. 815 Sec. 233. Power may be delegated. -^ It. is now well settled that the power of taking lands for public uses need not be specially con- ferred in every instance, but may be delegated to corporations or individuals by general laws, making proper provision for compensa- tion and for determining the character of the use to which it is to be applied. But the power must be strictly pursued.-' The legisla- ture is the judge of the necessity of taking lands for public purposes, hut it may in its discretion delegate the exercise of such power. But the determination of the corporation, officers, or persons, to whom the power is delegated, as to whether the use is public or not, is not conclusive ; yet where it is a public one, the determination as to the necessity of the taking is conclusive upon the courts.^ The Cherokee IN'ation v. Southern Kansas B. Co., 135 U. S. 640. But_ immediately on their becoming States they are possessed of the power as an inherent right of sover- eignty. Swan V. Williams, 2 Mich. 427 ; Weber v. JIarbor Com'rs, 18 Wall. (U. S.) 67 ; United States v. Railroad Bridge Co., 6 McLean (U.S.), 517. 1 State V. Jersey City, 25 N. J. L. 309 ; Ada.ms v. Saratoga, &c. E. Co., 10 N. Y. 328 ; ^ijffalo, &c. E. Co. ■». Brain- ard, 9 N. Y. 100 j New York E. Co. v. Ypung, 33 Penn. St. 175 ; Young ». Buck- ingham, 5 Ohio, 485 ; Toledo, '&c. R. Co. V. Daniels, 16 Ohio St. 390, 396; Oregonian E. Co. V. Hill, 9 Oreg. 377 ; Pittsburgh, &c. E. Co. V. Bruce, 102 Penn. St. 23 ; North Mo. E. Co. o. Gott, 25 Mo. 540 ; Vt. Central E. Co. v. Baxter, 22 Vt. 365; Alexandria, &c. E. Co. v. Eailroad Co. , 75 Va. 780 ; Weir v. St, Paul, &c. E. Co.., 18 Minn. 155 ; Mayor v. Central E. Co., 58 Ga. 120. The question of delegation and the extent of the power delegated is one of propriety and not of power. Buf- falo E. Co. V. Ferris, 26 Tex. 588 ; Boston Water Power Co. v. Boston, &c. E. Co., 23 Pick. 360 ; Brown v. Beatty, 34 Miss. 227 ; Clarke v. Bochester, 24 Barb. 446 ; Mercer v. Pittsburgh, &c. E. Co.; 36 Penn. St. 99. The right to take private prop- erty for a public improvement in the exercise of the right of eminent domain may be delegated to a corporation acting in its own interests, and for purposeil of private gain. And in order to constitute a public use, it is not necessary that the improvement should directly benefit the people of the whole State ; the direct pub- lic benefit contemplated may be confined to a particular community ; and the legis- lature is, in any ease, the sole judge of T^hat constitutes a public use. Bloom- field, &c. Co. V. Eifhardson, 63 Barb. (N, Y.) 437. An act authorizing a cor- poration created under the laws of another State to take lands for a public use is not unconstitutional because the instrumen- tality employed is a foreign ^corporation ; nor because such lands are to be iised for the maintenance of a navigable canal, which runs along the border of the State, ' but without its limits. Matter of T(jwn- send, 39 N. Y. 171. * Cassoday, J., in Smith v. Gould, 59 Wis. 631 ; 61 Wis. 31 ; Matter of Fowler, 53 N. Y. 60. A railroad is regarded as of public utility; therefore a delegation of the. power for the construction of a railroad is proper, as it is not the instrumentalities through which land is taken which lays the foundation of the right to take it, but the uses for which it is taken. Ash wi CummingSj 50 N.' H. 591 ; Beekman v. Saratoga E. Co., 3 Paige Ch. (N. Y.) 45; Kramer v. Cleveland, &c. R. Co., 5 Ohio St. 40 ; Eensselaer, &c. E. Co. v. Bavis, 43 N. Y. 137 ; Ealeigh, &o. E. Co. „. Davis, 4 J)ev. & B. (N. 0.) 451 ; In re City of Buffalo, 68 K. Y. 167. A general statute authorizing the creation of an in- definite number of railroad coi-porations, making such corporations common carriers, and requiring them to be constantly en- gaged in such public employment, may also constitutionally authoi-ize them to take private property for their roads on making compensation, Buffalo, &c. E. 816 EMINENT DOMAIN. [chap. XIV. power may be delegated to a foreign corporation, and the circum- stance that it derives a pecuniary profit therefrom, or that its works are outside the limits of the State, does not render an act conferring ' the power unconstitutional, if the use is a public one, and beneficial to the people of the State. Thus, a grant of such power to a corpo- ration to take lands to be used for the maintenance of a navigable canal, along, but just outside, the limits of the State, was held a proper exercise of the power.^ But where such lands were appro- panies to make compulsory pnrclia.s?s of land are to be construed strictly. Webb V. Manchester & Leeds Ey. Co., 4 Myl. & C. 116. It is, however, held that when a company are authorized by their act of incorporation to enter upon and appropri- ate such lands, buildings, &c., as may he proper to accomplish the objects of their creation, the corporation must be re- garded as the proper judges of what lands are necessary for their works. liichards V. Scarborough Public Market Co., 23 Law J. N. s. 110. And although corporations are not to be allowed to act capriciously in regard to the execution of the powers conferred by the act of incorporation, they are the judges of the most feasible mode of carrying forward their own operations, and are not liable to be called to account for the exercise of this discretion, so long as they act bond fide, and with common prudence. London & Birmingham Ry. Co. V. Grand Junction Canal Co., 1 Eng. Ry. Cas. 224 ; Priestley v. Manchester & Leeds Ry. Co., 2 Eng. Ry. Cas. 134. Each of the proprietors through whose lands a public work is constructed has a right to have the power strictly carried into effect, as regards his own lands, and to require that no variation shall be made to his pre- judice ; but where the act is faithfully car- ried into execution as regards Jhis lands, he cannot, on the mere ground of a varia- tion which is not injurious to himself, and which was made with the consent of others, obtain from a court of equity an injunc- tion to stay the proceedings. Lee v. Mil- ner, 2 Y. & C. 611 ; Lee v. Milner, 2 M. & W. 824. .1 Matter of Townsend, 39 N. Y. 171 ; Baltimore, &c. R. R. Co. ■». Harris, 12 Wall. (U. S.) 65 ; Southwestern R. R. Co. V. Southern, &c. Tel. Co., 46 Ga. 43 ; Co. V. Brainard, 9 N. Y. 100. The 1 lature cannot, in the exercise of the right of eminent domain provide for the appro- priation of private property to a mere pri- vate enterprise, in which the public have manifestly no interest. But railroad com- panies, when owned by individuals, are not private entei'prises merely, and the legislature may authorize such incorpora- tions to take the necessary private prop- erty to the use of their roads in invitum. Brown v. Beatty, 34 Miss. 227. Al- though the government has no authority, under the right of eminent domain, to take the property of one citizen and trans- fer it to another, even for a full compensa- tion, if the public interest will not be promoted by such transfer, yet the legis- lature is the sole judge as to the expe- diency of making poKce regulations in- terfering with the natural rights of the citizens of the State ; and also as to the expediency of exercising the . right of eminent domain for the purpose of making public improvements. Varick v. Smith, 5 Paige Ch. (N. Y.) 137. Mount Wash- ington Road Co., 35 N. H. 134. A stat- ute which authorizes the taking a whole lot, where a part only is needed, is uncon- stitutional and void, in so far as it as- sumes to authorize the taking of more than is needed, without the owner's con- sent. Matter of Albany Street, 11 Wend. (N. Y.) 149. And see Emhuiy w. Conner, 3 N. Y. 511. In England it is held that upon questions between railway compa- nies and individuals whose property the former seek to take under compulsory clauses in their acts, the court will not strain the construction of the act in favor of the companies. Gray v. Liverpool & Bury Ey. Co., 9 Beav. 391. On the con- trary, the powers given to railway com- SEC. 233.] POWER MAY BE DELEGATED. 81T priated without authority, or have been injured by the constraction of such canal, and a reservoir of water therefor, by flooding, etc., a statute which authorizes the appointment of commissioners to ap- praise the damages ah-eady sustained, and which makes their award and the payment or tender of the sum awarded a bar to any action to. recover damages for such injury, is unconstitutional. The cause of action of the owner of such lands for his damages is one to which the right of trial by jury, " in all cases in which it has been hereto- fore used," as guaranteed by the Constitution, is especially appro- priate, and he cannot constitutionally be required, by retroactive^ legislation, to submit his cause to a tribunal not proceeding accord- ing to the course of the common law.^ ^ Statutes delegating the right of etninent domain to railroad and other corporations for public use, being in derogation of common right, are not to be extended by implication, and must be strictly , ■complied witli. They are not to be construed so literally as to de- feat the evident purposes of the legislature, but the powers granted will extend no farther than is expressly stated in the act, or than is necessary to accomplish its general scope and purpose. If there remains a doubt as to the extent of 'the pow^r, after all reasonable intendments in its favor, the doubt will be solved adversely to the claim of power. And the proper limit to the power is the reasona- ble necessity of the corporation in the discharge of its duty to the . public.^ A corporation can exercise a delegated power to take Black V. Delaware, &o.' Canal Co., 22 must be by unequivocal words. An act N. J. Eq. 130 ; Gilmer v. Lime Point, 18 providing for a supply of water in the vU- Cal. 229; New York, &c. R. R. Co. v. lage of Amsterdam (ch. 101, L. 1881, as Young, 33 Penn. St. 175. But the power amended by ch. 197, L. of 1882) author- is not extended to foreign corporations by ized and required the taking of a fee in implication. Holbert v. St. Louis, &c. -the lands required for the puiposes of 1;he E. E. Co., 45 Iowa, 23. act. Danfoeth, J., said : "As the com- 1 Matter of Townsend, 39 N. Y. 171. missioners in this case might purchase^ so 2 New York, &o. E. R. Co. v. Kip, 46 no doubt the legislature might empower N. Y. 546 ; Oregonian E. E. Co. v. Hill, them to take by eminent domain, a right 9 Oregon, 377 ; Southern Pacific E. E. to enjoy a privilege in or out of the own- Co. V. Wilson, 49 Cal. 396 ; Mississippi er's estate which would not give them a Bridge Co. •;. Eing, 58 Mo. 491 ; Webb'B. right to enjoy the estate itself by exclusive Manchester, &6. Ey. Co., 1 Eng. Ey. or permanent occupation. Such. a right, Canal Cas. 576. A statute authorizing however acquired, would be an easement ; the taking of private property against the and as no grant is pretended, the question owner's consent must be strictly construed ; before us concerns the proper construction and while the property and the estate to of the statute, — Brooklyn Park Com'rs v. be taken, whether an easement or a fee, Armstrong, 45 N. Y. 234, — and the peti- and the purpose to which it is to be ap- tion upon which the commissioners have plied, may be designated in the statute, it undertaken to proceed. The act itself, in- 818 EMINENT DOMAIN. [chap. XIV. private property for public use only so far as the statute delegating such power plainly confers it. Thus, where the charter of a city asmuch as it authorizes the taking of pri- vate property against the owner's consent, is to be strictly construed. Sweet v. Buf- falo, &c. R. Co. , 79 N. Y. 293 ; Adams B. Saratoga, &c. K. Co., 10 N. Y. 328. And while the property and the estate which is to be taken, whether an ease- ment or fee, and the purpose to which it is to be applied may be designated in the statute, — People v. Smith, 21 N. Y. ^95; Sweet v. Buffalo, &c. E. Co., 79 N. Y. 293 ; Brooklyn Park Cora'rs v. Armstrong, 45 N. Y. 234 ; 6 Am. Eep. 70, — it must be by unequivocal words, and in pursuing it, all prescribed require- ments must be strictly observed. Matter of N. Y. Central E. Co., supra; Matter of Application of City of Buffalo, 78 N. Y. 362 ; Matter of Com'rs of Washington Park, 52 id. 131. The owner may, if the legislature so declares, be divested of the fee, although the public use is special, and not of necessity pei-petual. On the other hand, the entire estate need not be taken, but only that interest which is necessary to accomplish the prescribed purpose. Sweet v. Buffalo, &o. E. Co., 72 N. Y. 330. See,also People v. Haines, 49 N. Y. 687 ; Matter of New York, &e. E. Co., 70 N. Y. 191." Matter of Water Com'rs of Amsterdam, 96 N. Y. 351. A special authority to take lands against the consent of the oWner must be strictly pur- sued, and must appear to be so on the face of the order. Thus, where a particular notice in writing is prescribed by the act, it is not sufficient to say, "upon proof of due notice having been given," but it should appear on the order what notice was given. Van Wickle v. Camden, &c. E. Co., 3 N. J. Eq. 162. The charter of a railroad company contained the provision that in all cases wherJ any person through whose land the road may run should re- fuse to relinquish the same, or where a contract between the parties could not be made, it should be lawful for the corpora- tion to give notice to a justice of the / peace, etc., who should thereupon sum- mon the owner to appear, and appoint twelve disinterested men, who, on oath, should view the premises, and taking into consideration the advantage and disadvan- tage caused to the same by building the road, assess the damage, etc. It was held that the act was against common rigJit, and must be strictly construed, and that to entitle the company to the benefit of its provisions, they must have taken the initiative in assessing the damages ; that the ^act only applied to a case where the land appropriated was part of a tract with which the road came in contact ; and if the road was not in such contact at the time the assessment was made, the fact that, under the original laying out, it had been, was of no importance. Ed- ward V. Lawrenceburg, &c. R. Co., 7 Ind. 711. The power of the legislature to au- thorize the building of a railroad on a street or other public highway may be ■ devolved at discretipn upon the local au- thorities. Mercer v. Pittsburgh, &c. R. Co., 36 Penn. St, 99. Private corpora- tions may be authorized to take private property for the use of the corporation, wTiere the object of the incorporation, is the public benefit, as in the case of railroads, canals, etc. Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694 ; 23 Am. Dec. 756. So a private corporation, created for the purpose of making a road open to pub- lic travel upon payment of a fixed toll, may be authorized by the legislature to take land for the road without the owner's consent, upon payment of a just com- pensation, to be determined in some reasonable and convenient method. The fact that the members have a pecuni- aiy interest, such as will give it in law the character of a private corporation, will not prevent the State from using it to accomplish a public object. Peti- tion of Mount Washington Eoad Co., 35 N. H. 134. It is established by the uniform current of decisions, that the property of individuals, taken by railroad companies and similar corporations under their charters, is, from the public bene- fits resulting therefrom, to be deemed to be taken for public use within the con- stitutional provision upon that subject. Bradley v. New York, &c. R. Co., 21 Conn. 294. And the power of govern- SEC. 233.J POWEE MAY BE DELEGATED. 819 confers authority upon the city to " take private property for open- ing, altering, and laying out any street, lane, avenue, alley, public square, or other public grounds," it was held that such delegated authority does not confer power to condemn property on which to erect a city prison.^ Prima facie, the discretion exercised by a railway corporation in selecting land> for its purposes is good and binding,^ and will not be revised by the courts, unless it clearly appears that they have ex- ceeded their powers or acted in bad faith.^ The circumstance jihat another location would do less damage wUl not justify the court in attempting to control the discretion.* If the route is not defined in the charter, it may take the most feasible route, and may avoid natural obstacles, although the route taken to avoid them is less direct ; ^ nor can the court compel it to take a fee in the land when it has elected to take only an easement.* A de faoto corporation may exercise the power, and the regularity of the proceedings cannot be questioned.' But there must be a sufficient conformity to the law to create and maintain corporate existence.^ The power is conferred as a personal trust, and cannot be delegated or assigned ; consequently neither a lessee of a railroad ® nor a person employed to build it^" can, ■without express authority, exercise the right. The power is presumed to exist, only when required by public necessity; and while such stat- utes, being in derogation of private rights are to be constraed strictly, and are not to be extended beyond their fair import, yet they are to ment to delegate the exercise of the emi- ' Barh. (N. Y. ) 646 ; South Minnesota nent domain to effectuate such purpose, R. S.. Co. v. Stoddard, 6 Minn. 150. from the universality of .its exercise, is ^ Charleston R. R. Co. v. Blake, ante, no longer an open question. Swan v. ' Oregon Cascade Co. v. Bailey, 3 Or- "Williams, 2 Mich. 427. egon, 64 ; Cincinnati, &c. R. R. Co. v. 1 East St. Louis v. St. John, 47 111. Danville, &c. R. R. Co., 75 111. 113 ; Mc- 463. Auley v. Columbus, &c. R. R. Co., 83 IlL 2 Virginia R. R. Co. v. Elliott, 5 Nev. 348 ; Reisnen v. Strong, 24 Kan. 410 ; 358 ; Cotton v. Boom Co., 22 Min. 372. Kational Docks R. R. Co. v. Central R. R. 8 South Carolina R. R. Co. v. Blake, Co., 33 1^. J. L. But see Atlantic, &c. R. R. 9 Rich. (S. C.) L. 228 ; Fall River Iron Co. v. Sullivant, 5 Ohio St. 276 ; Atkin- Works V. Old Colony R. R. Co., 5 AJlen son v. Marietta, &c. R. R. Co., where it (Mass.), 221; Collins d. Creecy, 8 Jones was held that proof of due and legal prgan- (N. C.) L. 333 ; Hentz v. Long Island ization must exist as a condition prece- R. R. Co., 13 Barb. (N. Y. ) 646 ; Ex parte dent to the exercise of the power. Manhattan Co., 22 Wend. (N. Y.) 653 j 8 Atlantic, &c. R. R.,Co. v. Sullivant, Parke's Appeal, 64 Penn. St. 137; Super- ante; Powers v. Hazleton, 33 Ohio St. visors 1). Gorrell, 20 Gratt. (Va.)- 484. 429. * New Yorif R. R. Co. v. Young, 38 ", Worcester v. Norwich, &c. R. R. Co., Penn. St. 175. ' 109 Mass. 103. ' Hentz V. Long Island R. R. Co., 13 " St. Peter v. Denison, 58 N. Y. 416. 820 EMINENT DOMAIN. [CHAP. XIV. be construed reasonably, and so as to effectuate the evident intention of .the legislature in conferring the power.^ In order to warrant the exercise 'of the power, there must be both a necessity and a public use,^^but the necessity need not be made certain before it is lawful to proceed with the condemnation.^ The company is not confined ex- clusively to lands which are necessary, but it may also take lands which are convenient to its use/ and those which may be required when its business is more extended.^ The necessity of taking the land, is prima facie a question for the corporation to determine,® and on an application for the appointment of commissioners to estimate the damages on a condemnation of land for railway uses, the only inquiry that, as a general rule, will be made is, whether the applicant has a prwnu facie right. In this summary proceeding contestable questions will not be decided.'^ Thus, in a proceeding by a railway company before a probate judge, under the statute then existing it was held incompetent for the land- owner to prove, for the purpose of defeating the proceeding, that the corporators procured the incorporation of the company, not for a public use, but for their private purpose merely, and were exercising the corporate privileges in abuse of the law ; nor was it competent to prove for that purpose that there was no necessity for the road. These questions were not committed by the law to the determination of the probate judge, or of the jury, but pertained to other pro- ceedings.® Courts have the right to determine whether the use is public in its nature or not ; but when the use is publi6, the judiciary cannot inquire into the necessity or propriety of exercising the right of eminent domain; that right is political in its. nature, and to deter- 1 Rensselaer & Saratoga R. R. Co. v. 100 111. 110 ; Bowman v. Venice, &c. R. R. Davis, 43 N. Y. 137 ; Boston & Lowell Co., 102 id. 459. R. R. Co. V. Salem, &o. R. R. Co., 2 Gray * Ladd v. Maldon, &c. Ry. Co., 6 (Mass.), 1 ; Prather v. Jeffersonville, &c. Exchq. 143. R. R. Co., 52 Md. 16 ; Glover v. Boston, 6 Lodge v. Philadelphia, &o. R. R. Co., 14 Gray (Mass.), 282; Wilson v. Lynn, 119 8 Phila. (Penn.) 345. Mass. 174 ; Thacher ■». Dartmouth Bridge ' Dietrichs v. Lincoln, &c. R. R. Co., Co., 18 Pick. (Mass.) 501; New York, &c. 13 Neb. 361. If, however, the statute R. R. Co. 0. Kip, 46 N. Y. 546 ; Currier refers the question to the commissioners V. Marietta, &c. R. R. Co., 11 Ohio St. or other tribunal, their decision upon that 228 ; New York, &c. R. R. v. Gunnison, question is necessary. Shiok v. Pemisyl- 1 Hun (N. Y.), 496; Miami Coal Co. v. vania R. R. Co., 1 Pearson (Penn.), 259. Wighton, 19 Ohio St. 560. See also Doe v. North Staffordshire Ry. 2 Tracy v. Elizahethtown, &c. R. R. Co., 16 Q. B. 526. Co., 80 Ky. 259. 7 State v. Hudson Tunnel R. R. Co., 8 Chicago, &c. R. R. Co. ». Dunbar, 38 N. J. L. 17. B Powers V. Hazleton, 33 Ohio St. 429. SBC. 234.] QUANTITY OP LAND TO BE TAKEN. 821 mine when it shall be exercised belongs exclusively to the legisla- tive branch of the government.^ When the use is public, and the legislature has acted upon the question, the expediency or necessity of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legis- lature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in -which the public is interested.^ The right lies dormant in the State until legislative action points out the occasions, the modes, the con- ditions and the agencies for its appropriation ; and a legislative act, being the customary mode of determining that fact, must be held for this purpose the law of the land; and no further finding or adjudi- cation is essential, unless it is required expressly by the constitution of the State.^ Sec. 234. Quantity of Land to be taken. — Where neither the charter nor general law restricts a railroad company as to the quan- tity of land to be taken for its roadway and general uses, it is restricted to such a quantity as is reasonably necessary ; it is, in a modified degree, permitted to judge for itself as to the amount that is necessary for such purpose. This right is subject to all constitu- tional and statutory restrictions, and to the further limitation that the courts are clothed with ample power to prevent any abuse of the same.* In a Wisconsin case ^ the defendant's charter authorized it to take any land along and including the line of its road, not exceeding two hundred feet in width, and any land beyond those limits "which the directors shall, by resolution adopted by them, declare to ■ be necessary for the use of said company," etc. It was held that this provision of the charter must be strictly complied with, before the company can condemn land outside the limit of two hundred leet in width ; that the resolution provided for is a corporate act, and must be adopted at a meeting of the directors at which there is present a ^ Chicago & Rock Island E. Co. v. necessary for the purpose for which the Town of.Lake, 71 111. 333. taking is authorized. Webb v. Manches- 2 Baltimore, &o. E. (?o. v. Pittsburgh, ter, &c. Ey. Co., 4 M. & Cr. 116. See also &o. E. Co., 17 West Va. 812. ante, Chapter IX., section on " Width of " Alexandria & Fredericksburg E. Co. Way." V. Alexandria & Washingtdn E. Co., 75 ' Stringham v. X)shkosh, &c. E. Cq., Va. 780; 40 Am. Eep. 7'43; — Am. &Eng. 33 Wis. 471. See also Johnston v. Chi- R. Cas. — . cago, &c. E. Co., 58 Iowa, 537, where it^ * Smith V. Chicago, &c. R. Co., 105 was held that where the company was 111. 511. A railway company will be re- thus restricted it could not condemn, ad- strained from taking more land than is ditional lands for stations, etc. 822 EMINKNT DOMAIN. [CHAP. XIV. quorum competent to do business ; and generally, if the statute points out the mode in which the quantity of land necessary is to be determined, such mode must be adopted. Thus, under an act incor- porating the Carolina Central Kaikoad Company, and providing for the condemnation of land for the construction and operation of the road, it was made the duty of the commissioner? appointed by the court not only to ascertain the value, but also the quantity, of the land which it was necessary to appropriate ; and it was held that- the land-owner did not waive his right to insist on the performance of this duty by failing to answer the allegations of the petitioner as to the quantity necessary.^ In ascertaining the amount of land necessary, the court will accept the evidence of the engineer in the service of the company as con- clusive, if the statement has a reasonable appearance of accuracy.^ If the statute restricts the company to a roadway of a certain width, but gives the court authority to permit it to condemn more if necessary, the burden of establishing the necessity for taking more is upon the company.^ And if the statute designates the species of necessity which must exist in order to warrant the taking of more, — as, first, on account of wood and water stations, and second, where a greater width is required for excavation, embankment, or depositing waste earth, — it cannot be permitted to increase the width of its roadway upon any other grounds.* If, however, the right of way is not limited to any particular width, it may vary in different locali- ties according to its necessities for the convenient and economical management of its business.^ > The right of running sidings to private establishments, and of taking the necessary land for the purpose, is clearly within the constitntional power of the legislature to confer, because the public interest is thereby subserved, by reason of the increased facilities afforded for developing the resources of the State, and promoting the general wealth and prosperity of the community.^ Where a railway company had a side track for many years before, connecting its main , 1 Carolina Central E. E. Co. v. Love, surveys filed does not prevent it from tak- 81 N. C. 434. ing more land if necessary. Virginia & 2 Kemp V. South-Eastern Ey. Co., L. Tomkee E. E. Co. v. Lovejoy, 8 Nev. 100. B. 7 Ch. 364. 4 Jackson v. Chicago, &c.,E. E. Co., 58 ' WisconsinCentralE.E. Co. 11. Cornell Iowa, 537. University, 52 Wis. 537; Jefferson & Pon- ^ Chicago, Eock Island, &c. E. E. Co. chai-train, &c. E. E. Co. v. Hazem, 7 La. v. People, 4 Bradw. (111.) 468. An. 182. The fact that it has constructed * Getz's Appeal, 3 Amer. & Eng. E. E. its road in accordance with the maps and Oas. (Penn.) 186. SEC. 235.] PUBLIC USB, "WHAT IS : HOW DETERMINED, 823 track with a public wareliouse and elevator in a town, over the land of another, but without haying the right of way therefor except by the mere consent or license of the owner, it was held that the com- pany had the right to institute proceedings to condemn the land over which such branch ran, for right of way.^ One railway company cannot, by agreement, condemn property for its own use and the use of other companies.' Each company must proceed for itself.^ But while a railway company may not have the legal authority to condemn a right of way for a lateral line, yet it may cause anotl^er company of its own stockholders to be organized so as to have that power ; and when such subsidiary com- pany has condemned the right of way, it may lease its line to the former company; and in this there will be no fraud upon those whose lands have been condemned.^ Sec. 235. Public use, What is: How determined. — As we have seen, the right of eminent domain can ' only be e;xercised for a public use. To constitute a public use authorizing the exercise of the right of eminent domain, it is not required that the entiire community, or even, a considerable portion of it, should directly ■ participate in the benefits to be derived from the property taken.* The clause in the Constitution prohibiting the taking of private property for public uses without ccfmpensation does not prohibit the legislature from authorizing an exclusive occupation of private property, temporarily, as an incipient proceeding to the acquisition of a title to, or an easement in the land taken.^ The mode and manner in which the owner of land taken for public use is to be compensated for the land so taken, are to be deterniined by the legislature. When it is not required that compensation be made, before entering upon the land taken, and it is provided that the owner of the land may cause his damages to be ascertained in ^ Fisher v. Chicago & Springfield B. E. tested in a quo warranto proceeding' then Co., 104 111. 323. pending against such company.*" It was ^ Swinney v. Fort Wayne, Muncie, & held that the answer was. insufficient. Cincinnati E. E. Co., 59 Ind. 205. Aurora & Cincinnati E. E. Co. ■». Miller, 8 Lower v.- Chicago, Burlington, ,. & 56 Ind. 88. , Quinoy E. E. Co., 5*9 la. 663. To the * Talbot «. Hudson, 16 Gray (Mass.), petition of a railway company to' take 417; Lumbard b. Stearns, 4 Cush. (Mass.) lands, the owner answered asking an in- 60; Holt v. Somerrille, 127 Mass. 408; junction upon the alleged grounds that the Bancroft u. Cambridge, 126id.'438; Den- plaintiff had no valid organization, did ham v. County Comm'rs, 108 Mass. 202; not intend to. build the proposed line, and Gilmer v. Lime Point, 18 Cal. 229. had organized simply inthe interest of an- ' Cushman v. Smith, 34 Me. 247. ffther company, which grounds were being 824 EMINENT DOMAIN. [chap. XIV. the same manner as in the case of land taken for highways, such owner cannot maintain trespass for such taking, within the time limited for an assessment of damages, and without any application for such assessment.^ It is not necessary for us to state what uses have been regarded as public, within the meaning of the term as employed in the Con- stitution ; it is sufficient for our purposes that railways have always •been regarded as such public improvements as to justify the legisla- ture in conferring upon corporations established for their construc- tion and operation, this prerogative privilege.^ The circumstance. 1 Cnshman v. Smith, 34 Me. 247 ; Nichols V. Som. & Ken. E. R. Co., 43 id. 356; Davi.s v. Russell, 47 id. 443; Cairo & Fulton R. E. Co. v. Turner, 31 Ark. 494; 25 Am. Eep. 664. Eiche v. Bar Harbor Water Co., 72 Me. 148. 2 San Francisco, &c. R. E. Co. v. Cald- well, 31 Gal. 367 ; New York & Harlem E. R. Co. V. Kip, 46 N. Y. 546 ; Secombe V. Milwaukee, &c. R. R. Co., 23 Wall. (U. S.) 108 ; Newby v. Platte & Co., 25 Mo. 258 ; Walther v. Warner, 25 id. 277; West River Bridge Co. v. Dix, 6 How. (U. S.) 507 ; O'Hara v. Lexington, &c. E. E. Co. 1 Dana (Ky.), 232 ; Arnold v! Covington Bridge, 1 Duv. (Ky.) 372; Buf- falo. E. E. Co. V. Ferris, 26 Tex. 588; Swan J7. Williams, 2 Mich. 427 ; Ealeigh E. E. Co. V. Divis, 2 D. & B. (N. C.) 451; Brown v. Beatty, 34 Miss. 227; Pine Grove v. Talcott, 19 Wall. (TJ. S.) 666. Acts authorizing railroad companies to take private property for the purposes of the road, upon the payment of a fair compen- sation, are constitutional, and the mode of ascertaitiing the damages of the owners of the land taken for the road, hy commis- sioners appointed by the legislature or the governor^ is not repugnant to the Con- stitution. .The provision of a State con- stitution which declares that the right of the trial by jury in all cases in which it has heretofore been used shall remain in- violate forever, relates to the trials of issues of fact in civil and criminal cases in courts of justice. The right of eminent domain remains in the government, or in the aggregate body of the people in their sovereign capacity ; and they can resume the possession of private property, not only where the safety, but also where the interest or even, the convenience of the State is concerned; as where the land is wanted for a road, canal, or other public improve- ment. The only restriction upon the power of the people to resume the posses- sion of property for the purpose of an in- ternal improvement in which the public, or the inhabitants of any particular section of the State, as citizens merely, have an interest, is that the property cannot be taken for such public use without just compensation to the owner, and in the mode prescribed by law. It belongs to the legislature to determine whether the benefit to the public from such improve- ment is of suflBcient importance to justify their exercise of the right of eminent doinain, in thus interfering with the pri- vate rights of individuals. In cases of public improvements, from which a benefit would result to the public, this right of eminent domain may be exercised either directly by the agents of the government, or through the medium of corporate bodies, or by means of individual enterprise. Eaiboads are public improvements, from which the public derive a benefit; apd the legislature can appropriate the private property of an individual for the purpose of such improvements, or may authorize an individual or a corporation thus to ap- propriate it, upon paying a just compen- sation to the owner for the same. The privilege of making a railroad and taking tolls thereon, when granted to an indi- vidual or a company, is a franchtse. The public have an interest in the use of the road, and the owners of the franchise are liable to respond in damages, if they SEC. 235.] PUBLIC USB, WHAT IS: HOW DETEEMINBD. 825 that they are built, owned, and operated by a private corporation, and that but comparatively few people are benefited thereby, does repair the same, upon making compensa- tion, we apprehend would not be ques- tioned on the ground that it was not for a public use. There can be no essential dif- ference in principle from going outside to obtain .such material to be used upon the highway, and going outside to construct drains to jdraw water from the highway. The distance from the highway to the place where the lands of the ;plaintiffs were ex- cavated may raise a doubt as to the neces- sity of such entiy ; but as indicated, the right to so take is by* the statute made de- pendent upon the necessity. The question recurs, however, — is the necessity to .be determined by the^ court or the legislature, and if the latter, then may they delegate such right to the town supervisors or over- seer of highways ? In Pittsburgh v. Scott, 1 Penn. St. 314, it was observed by the court "that the right of eminent domain or inherent sovereign power gives the legis- lature the control of private property for public use. . . . As a general rule it rests in the wisdom of the legislature to deter- mine what is a public use, and also'the necessity of taking the property of an indi- vidual for that purpose. . . , The right of eminent domain, as has been repeatedly held, may be exercised by the government through its immediate officers or agents, or indirectly through the medium of corporate bodies or- private individuals." It is there in effect conceded, however, that courts may interfere where it clearly appears that the right has been abused by the legislature, in authorizing the taking for a private use instead of a public user In Talbot v. Hud- son, 16 Gray (Mass.), 407, it was held that "the determination of the legislature is- not conclusive that a purpose for which it directs private property to be taken is a public use,' but is conclusive, if the use is public, that a necessity exists which re- quires the property to be taken. In Wil- liams ■». School District, 33 Vt. 271, it was held, in effect that the taking of land for a school-house was for a public use, and that the quantity of land allowed to be taken was not limited to the mere site of the school-house, but included such adjacent land for the purpose of a yard, etc., as the refuse to transport an individual or his property upon such road, without any rea- so/iable excuse, upon being paid the usual rate of fare. The legislature' may regulate the use of the franchise and limit the amount of the tolls, unless they have de- prived themselves of that power by a legis- lative contract with the owners of the road. The sovereign power has no right to take the property of one citiaen and transfer it to another, even for a full compensation, where the public interest will not be pro- moted thereby. Beekman v. Saratoga, &o. R. Co., 3 Paige (N. Y.) Ch. 45 ; 22 Am. Dec. 679. That a, railroad is in general such a publio^use as affords just ground for the taking of private property and ap- propriating it to that use, see Concord R. Co. V. Greely, 17 N. H. 47 ; Contra Costa R. Co. V. Moss, 23 Cal. 324 ; Louisville, &c. R. Co. V. Chappell, Rice (S. C), 383 ; Baltimore, &c, R. Co. v. Van Ness, 4 Cranch (U. S.), 595; Aldridge v. Tus- cumbia, &c. R. Co., 2 S. & P. {Ala. ) 199 ; 23 Am. Dec. 307 ; Beekman v. Saratoga, &c. R. Co., 3 Paige (N. Y.) Ch. 45; 22 Am. Dec. 679; Bloodgood v. Mohawk, &c. R. Co., 14 -Wend. (N. Y.) 52, also 18 id. 9 ; 31 Am. Deo. 313 ; Buffalo, &c. R. Co, V. Brainard, 9 N. Y. 100 ; -Weir v. St. Paul, &c. R.. Co., 18 Minn. 155 ; White- man V. Wilmington, &o. R. Co.,, 2 HaiT. (Del.) 514 ; 33 Am. Deo. 411'; Bradley v. New York, &c. R. Co., 21 Conn. 294 ; Bonaparte v. Camden. &c. E. Co., 1 Baldw. (U. S.) 205. The taking of land for a ditch to drain a public highway is a taking for public use, and eminent domain proceedings can he instituted therefor. In Norton v. Peck, 3 Wis. 723, Whiton, C. J., said: "There can be no doubt that land taken and used for a. common highway is taken for a public use. The proposition we deem so clear that no argument is required to prove it." The mere fact that the land taken for the drain in question was outside of the limits of the highway sought to be improved did not prevent its being taken for a public use, if such was the result of the taking. The right to obtain materials outside of the limits of the highway, to construct or VOL. II. — 2 826 EMINENT DOMAIN. [CHAP. XIV. not deprive them of their public character.^ To be public, the user must concern the public, but it is not at all essential that all should be benefited thereby ; ^ nor that the public should own the property, or have any pecuniary interest therein- The question is, \?hether it is of so much benefit or advantage to the community, either di- rectly or indirectly, that it cannot be said to be wholly private in its effect and operation.^ Thus, under general railroad laws, land may selectmen or commissioners might think requisite. As to the necessity of such taking, it was there said hy Poland, J., for the court, "that where the use is a puhlic one, it rests wholly with the legis- lature to say whether sufficient necessity exists to justify granting the power to take private property therefor, and that courts will not interfere with their discretion, at least, not unless the entire absence of any necessity is shown." In Beekman v. Sara- toga K. R. Co., 3 Paige (N. Y.) Ch. 73, Chancellor Walwokth said : "But if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit of the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an in- terference with the private rights of indi- viduals for that purpose." See Matter of Eyers, 72 N. Y. 8, under a similar act. If the owner of land taken can by a method provided by statute resort to taxable prop- erty of a town for damages sustained, he receives compensation within the meaning of the Constitution. It has been fre- quently held in New York, in effect, that where an individual's land is taken for a public highway, such individual obtains the just compensation to which he is en- titled, on being provided with a sure and legal remedy for its collection ; and that it is not essential that the amount of such compensation should be actually paid or ascertained before the land is taken or ap- propriated. Chapman v. Gates, 54 N. Y. 143. The same rule has been sanctioned in other States. Pittsburgh v. Scott; Mer- cer V. McWilliams, 1 Wright (Ohio), 132; Shearers v. Commissioners, 13 Kan. 145; Jackson v. Main, 4 Litt. (Ky.) 322; Smea- ton V. Martin, 57 Wis. 364. 1 Talbot V. Hudson, 16 Gray (Mass.), 417 ; Gilmer ■». Lime Point, 18 Cal. 229. The right of eminent domain has been ex- ercised in favor of grist mills, Olmstead v. Camp, 33 Conn. 532 ; and mills generally, Tyler v. Beacher, 44 Vt. 648; Boston Mill Dam ». Newman, 12 Pick. (Mass.) 467; the draining of marshes, Henry «. Thomas, 119 Mass. 583 ; WiUson v. Blackbird Creek Marsh, "g Pet. (17. S.) 245; the erection of school-houses. Township Board v. Hackman, 48 Mo. 243 ; Peekham v. School Dist., 7 R. I. 546 ; burying grounds, Edgecombe v. Burlington, 46 Vt. 214 ; Edwards v. Stonington Cemetery, 20 Conn. 466 ; public parks, Higginson w.-Nahant, 11 Allen (Mass.), 520 ; reservoirs, Kane V. Baltimore, 15 Md. 240; Thorn v. Swee- ney, 12 Nev. 251; and a multitude of uses which were not contemplated when the Constitution was framed, but which, by reason of the benefits flowing from them, come within the power therein given. Pattinson v. Boom Co., 3 Dill. (TJ. S. C. C.) 465; N. 0. Tel. Co. v. Southern Tel. Co., 53 Ala. 211 ; Memphis Freight Co. V. Memphis, 4 Cold. (Tenn.) 419 ; Finney v. SomervUle, 80 Penn. St. 59 ; Cotton V. Boom Co., 22 Minn. 372 ; Orr v. Quimby, 54 N. H. 590; Clarke u. Blackmer, 44 N. Y. 150; Lawlerw. Baring Boom Co., 56 Me. 443; Tipton v. Miller, 3 Yerg. (Tenn.) 423; Dayton Mining Co. ■». Sea- weU, 11 Nev. 394; Bankheadw. Brown, 25 Iowa, 540. 2 Gilmer b. Lime Point, ante ; Sherman V. Buick, 32 id. 241 ; Warren v. Bunnell, 11 Vt. 600; Shaver v. Starett, 4 Ohio St. 404 ; Killbuck v. Private Road, 77 Penn. St. 39; Sadler d. Langham, 34 Ala. 311. » Olmstead ». Camp, 33 Conn. 532. In State t. American, &c. Tel. Co., 43 N. J. L. 381, it was held that the supplement ot 1880 to the act in relation to telegraph companies, authorizing the condemnation of the right of way, is constitutional. The SEC. 235.] PUBLIC USE, "WHAT IS : HOW DETERMINED. 827 be taken by a railway company for the construction of side tracks, and branches to mines,^ mills, manufacturing establishments, or to its own workshops, coal-sheds, engine-houses, stock-yards, elevators, etc. ;^ and it is no objection to the exercise of such right that the land so taken constitutes a private way, as it is not the special use made of the land taken which characterizes it, but its convenient necessity to that part vjMch is for pMic use? Therefore turn-outs, depots, side tracks, turn-tables, etc., being necessary conveniences in conducting the business of a railroad, are included under the ■word " appendages " in an act authorizing the taking of lands for the construction of a railroad with such " appendages " as may be necessary.* Biit under the power of an incorporated railway com- pany to condemn land necessary for side tracks, turn-outs, or switches, it has no right to take land for the construction of an independent • branch road to subseirve only mere private interests. But it is no valid objection to the condemnation of a strip of land for a switch or a side track of a railway corporation, that the proposed track may serve private use, if in addition to serving sudh use it is also neces- sary for the successful and convenient operations of the main line of the railroad. Where a railway corporation is limited by the authori- ties of an incorporated village or town to thirty feet in the centre of a public street in which to locate its main track, and it becomes necessary to construct a switch or side track, it is no objection to the condemnation of land for that purpose that it runs perpendicular to use contemplated ty the supplement is a need not he imposed in express words ; it public and not a private use. Lumbard may rest upon implication. V. Steams, 4 Cush. (Mass.) 60;,Scudder i Hanrey w. Thomas, 10 Watts (Penn.), V. Delaware Falls Co., Saxe, 729. The 63. But in Pennsylvania and Maryland, term "public use" is flexible, and cannot there are special statutes authorizing the be confined to public use known at the construction of branch roads to mines, etc. time of framing the Constitution". All Harvey ». Lloyd, 3 Penn. St. 331; Shoen- improvements that may he made, if useful berger v. MuUhollan,, 8 id. 134; Northern to the public, may be encouraged l/y the ex- Central CoaLOo. v. Coal & Iron' Co., 37 erase of eminent domain. Any use which Md. 537. But in the absence of statutes will satisfy a reasonable public demand for conferring such right, it could not be ez- faciltties of travel, for transmission of iis- ercised. Such branches are not such inci- telligenoe or of commodities, would be a dents of the trunk line that they can be public use. Concord E. E. Co. v. Greely, built under the charter for a main line. 17 N. H. 47 ; New Orleans Tel. Co. v. 2 Philadelphia, &c. E. R. Co. v. "Wil- Southem Tel. Co., 53 Ala. 211. Com- liams, 54 Penn. St. 103. panics in accepting the beneiits of this ' Laddw. Maldon, &c. Ey. Co., 20 L. J. law, lay themselves under obligation to u. S. 102. the public to permit the use of their lines * Hannibal, &c. E. E. Co. v. Muder, 49 by all persons, under reasonable regula- Mo. 165. tions. This obligation upon a company 828 EMINENT DOMAIN. [CHAP. XIV. the main track, there not being room enough in the right of way along'the street for the side track in addition to its two main tracks. To deny a petition of a railway company for the condemnation of land for a side track, it should appear that the object thereby sought is clearly an abuse of power; and a taking of private property for an object not required for the convenient operation of the road.^ The running of a side track by. a railroad company to a private manufacturing establishment, to connect the business of such estab- lishment with the main line of the railroad is a public use for which land may be appropriated. These establishments are very numer- ous, especially in Pennsylvania, along and near lines of railroad. They serve to develop the resources of the State, they give employ- ment to vast numbers of citizens, and constitute a most important element in the general wealth 'and prosperity of the community. Convenience and consequent cheapness of transportation are in most . cases essential, and in many vital to their maintenance. Moreover, considerable portions of the general public are directly interested in the^trafiEic which goes to them, and in that which comes from them. Hence they cannot be regarded as merely private interests, and therefore without the pale of that public use for which private property may be taken in the construction of railroads lawfully established and actually used for public purposes.^ 1 Matter of Boston, &c. E. Co., 53 purpose of a railroad station is nsed~as N. Y. 574 ; N. Y. Central E. Co. v. M. 6. such, but a private business is carried on ' L. Co., 63 N. Y. 326 ; Cbicago, &c. R. in certain rooms by one who is the agent Co. 0. Lake, 71 111. 333 ; Smith v. Chi- of the railroad and receives his compensa- cago, &c. E. Co., 105 id. 511 ; Cleveland, tion in being allowed the use of these &c. R. Co. V. Speer, 56 Penn. St. 325 ; rooms, in which railroad freight is, how- 94 Am. Dec. 84 ; in re N. Y. Central R. ever, stored when necessary, it is not such Co., 77 N. Y. 248 ; South Chicago, &c. R. a diversion by the railway from the use for Co. V. Dix, 109 111. 237. The following which the' land was expropriated as to instructions given in a case were held authorize an action for damages. Hoggatt correct: "That the railroad company, v. Vicksburg, &c. R. Co., 34 La. An. under its articles of incorporation, can only 624. take property for the purpose of a railroad 2 Getz's Appeal (Penn.), 3 Am. & Eng.-* and telegraph line, and having once con- E. Cas. 186. In N. Y. Central R. Co. v. demned property, it can use it for any Manhattan Gas Light Co., 5 Hun (N. Y.), purpose connected with its enterprise. It 201, 6 id. 149, 68 N. Y. 326, it was can use the property condemned of appel- held that a. railway company may 'take lant for its main or side track. It can lands, under the general law, for the pur- build a depot, freight-house, engine-house, pose of laying ta'acks, from its main line to or warehouse, upon it at any time it" its stock-yards. " It hardly needs an argu- chooses, or appropriate it for any railroad ment," said Davis, P. J., "to establish purpose It chooses." Curtis v. St. Paul, that in a city like New York, depots for &c. R. Co. 20 Minn. 28. Where a build- freight, and for vast number of cattle and ing erected on land expropriated for the other live stock that are constantly bein" SEC. 236.] PUBLIC USB, WHAT IS : HOW DETEBMINED. 829 Under a statute authorizing the taking of lands " for the location, construction, and convenient use of the road," land cannot be taken transported to the city, are as mucli within the purposes for which railroads are con- structed, and as necessary to their opera- tion as depots for the accommodation of passenger traffic. The argument indeed is more strongly in favor of the former, for while a railroad company might, with safety to itself, leave its passengers upon a public street to take care of themselves upon their individual responsibility, it could not do so with respect to the animals it transported, but must securely keep them from injuring and annoying the pub- lic, until proper delivery to owners or con- signees. For the purpose of performing their duty in this respect with greater facility and safety to the public, and con- venience to themselves, the respondents have obtained title to the large tract of land between Fifty-ninth and Sixty-fifth streets by, purchase, and without resorting to the exercise of the right of eminent domain. Upon a large portion of this land they have erected extensive cattle depots and yards, and the buildings neces- sarily connected with such structures, and it is said their design is also to build an elevator, of sufficient dimensions to receive 1,500,000 bushels of grain, and an abattoir sufficient to meet the requirements of the city," in which business is to be carried on by other companies or persons, to whom such establishments are to be leased. If all this be so, the authority of the respond- ent to acquire by voluntary purchase land for these purposes, is within the power granted by the act, as was held by the court of appeals in Reus. & Saratoga E. E. Co. V. Davis, 43 N. Y. 137, and the re- spondents are not seeking to obtain title by these proceedings to any lands for such purposes. They do not propose to erect an elevator or an abattoir on the appel- lant's land, but to use It for laying tracks, upon which their cars will run for the pur- poses of approach to their cattle depots and yards, and to the other structures men- tioned ; and the use for the public purpose of approaching structures for which lands might have been taken in invitum, is none the less so because their cars -will at the same time approach structures not within the application of the law of eminent domain. A railroad corporation cannot take land under the right of eminent do- main for the purpose of founding a town or city on the plea that when founded it will furnish business to the road of the company. But it is quite another question if the company be the lawful owner of lands on which it has founded and erected a city, whether it may not lawfully ac- quire, under eminent domain, the lands necessary to connect its tracks, being within its lawful route, with that city. A fortiori would the same reasoning apply where the track to be laid wa^ primarily to erections within the rule' of necessity, and only incidentally to those which fall within the class of business conveniences. We are therefore of opinion that the appellants are not protected by the rule that lands cannot be taken -"for subsidiary and ex- traordinary purposes," but that this case is clearly covered by the ruling of the Court of Appeals in the matter of the Peti- tion of the New York & Harlem R. R. Co. V. Kip, 46 N. Y. 546. Upon the point, that the lands proposed to be taken are not necessary, because it might be prac- ticable for the respondents' to lay their tracks upon their own lands by adopting another curve, we are not prepared to con- cur with the appellants' counsel. It is not a question of possibilities nor of strict practicabilities within the opinion of en- gineers. No route was ever surveyed for a railroad which was not open to such ob- jections, and if the right to take lands was to be determined by conflicting evidence whether, after all, the tracks might not, with greater or equal convenience, be laid elsewhere, the.construction of a road would be attended with the most- serious embar- rassments. Reasonable necessity must be shown, but a reasonable discretion must be allowed to the officers who locate the tracks of a railroad, for it cannot be pre- sumed that the corporation is unnecessa- rily incurring heavy expenses in obtaining lands, when those it already has would an- swer its purposes. We think enough was shown to bring this ease within the rule of the authorities in respect to this question. 830 EMINENT DOMAIN. [chap. XIV. for the general uses of the road in addition to the uses specified in the statute,! — as, for dwellings for operatives,^ for a temporary Matter of N. Y. & Harlem E. E. Co. v. Kip, 43 N. Y. 446 ; Matter of Boston & Albany E. E. Co., R3 id. 574. It is not sought to interfere with ' the franchise of the gas company.' That will remain in- tact, although some portion of the prop- erty on which it is exercised be taken for 1 public use. It may be quite sound to say that the right of eminent domain does not attach to corporate franchises, and yet be quite unsound to insist that lands held by a corporation are exempt from its exer- cise. The doctrine insisted upon would create a distinction between the real estate of artificial and natural persons, to the great prejudice of the public. Such dis- tinction does not, and ought not to exist. All lands in the State are subject to its right of eminent domain, whenever the exigency for its exercise arises, and no exemption grows out of the mere fact of the ownership and use of property by a corporate body. A banking-house, how- ever valuable and useful, must give way before that powei", whenever it stands as a barrier in the path of some necessary pub- lic avenue. It is another question how far lands already devoted to public uses and held for that purpose, can be taken under the right of eminent domain for an- other public use. Even upon that ques- tion I am not prepared to say that a use of inferior necessity must not yield to one of clearly superior necessity ; as for in- stance, a horse railway to the imperious necessity of rapid transit, or a chartered coach line or turnpike to the necessities of a railroad. It was held, in White River Turnpike Co. v. Vermont Central E. R. Co., 21 Vt. 590, that there is no implied contract by the State, in a charter of a turnpike or other private corporation, that their property, or even their franchise it- self, shall be exempt from the common liability of the property of individuals to be taken for public use. Matter of Kerr, 42 Barb. (N. Y. ) 11 9. But I do not think there is any occasion to decide that ques- tion in this case. The appellants, by their . charter, are not clothed with power to ex- ercise the right of eminent domain. They do not hold the lands in question under the exercise of any such power, but as a mere private manufacturing corporation. They are claimed to be quasi public, be- cause they furnish light to a portion of the public streets, but they would be none the less so if the contract under which they light the streets was taken from them and given to another. Their public charac- ter spiings out of the nature of the article they manufacture, and the manner in which they deliver it to their customers, through mains and pipes in the public streets, and the legal obligation they are under to furnish to all who desire and who pay for it along the street where their mains are laid. These facts in themselves do not make the defendants a public cor- poration, within the sense of that term when applied to that class of corporations which is clothed by constitutional legis- lation with power to exercise the right of eminent domain. I think, therefore, they have no more right to claim that they are shielded from the exercise of that right, from the nature of the article manufac- tured by them, and the convenien(3e or necessity of its use by the public generally, than any other private corporation, created to make and vend to the public any other articles of prime necessity, — a corporation to manufacture cheap bread, for instance, or an ice company in midsummer. ' The fact that the public have an interest in the works, or the property, or the object of a corpora,tion, does not make it a public cor- poration.' Ten Eyck v. Delaware & Rari- tan R. E. Co., 18 N. J. L. 200 ; Firsman 1). The Belvidere & Delaware E. E. Co., 26 N. J. L. 148. The courts will act circum- spectly and only on strong necessity, in allowing property devoted to uses of great public benefit to be taken; but where such 1 Spofford V. Bucksport, &c. E. E. Co., N. Y. 137 ; Kashville, &c. E. E. Co. ■», 66 Me. 26. Cawarden, 11 Humph. (Tenn.) 348; State 2 Rensselaer, &c. E. E. Co. v. Davis, 43 v. Mansfield, 23 N. J. L. 510. SEC. 235.] PUBLIC USB, WHAT IS : HOW DETEEMINBD, 831 right of way,^ for gravel-banks,^ for a wharf,^ nor for the purpose of a ferry.* It may take lands for its stations, and for- necessary and convenient approaches thereto,^ and also for its necessary work- shops ; ^ but it has been held that the manufacture of railroad cars is not so necessarily connected with the management of a railroad as to authorize a railroad conipany, by virtue of the right of eminent domain, to take lands compulsorily for the purpose of erecting such a manufactory thereon. So also in . respect to dwelling-houses to rent to the employes of the company. But otherwise as to the land taken for storing temporarily .lumber used on the road.^ Under the provisions of a railroad charter authorizing, the com- pany to take land contiguous to the Hne of their road for depots, shops, etc., provided the amount so taken does not exceed five acres, the company cannot take without the consent of the owner, as a site for a warehouse, a parcel of land four hundred yards from the line of their road, and build a narrow track from their road to such parcel of land, although the whole quantity required for the site of the warehouse, and the road leading to it, would not exceed five acres.* Under the power conferred upon a railroad corporation only "to enter upon any land, to survey, lay down, and construct its road ; " necessity is shown to exist, the power to think, is all, under the circumstances, they act seems entirely clear. In this case the , are entitled to claim." property sought to be takeft is ipt, and ^ Currier v. Marietta, &c. E. E. Co., 11 has never been,, in actual use for the pur- Ohio St 228. poses of the gas company. Doubtless, the a New York, &c. E. E. Co. v. Gunnison, use of their lands in the future, when the 1 Hun (N. Y.), 496. appellants come to need them, as they an- a jro^ jj. E. Co. v. Ironton, 19 Ohio ticipate, will be more conrenient without St. 299. the additional tracks of the railroad than * Sandford v. Martin, 31 Iowa, 67. with them; but the railroad now crosses 6 Nashville, &c. E. E. Co. v. Cawardin, their land with several tracks, and the H Humph. fTenn.) 348; Giesy v. Cin- additign of two or three more, on land ad- cinnati, &c. R. E. Co., 4 Ohio St. 308 ; joining the present tracks, does not strike Gather v. Midland Ry. Co. 17 L. J. N. s. us as necessarily destructive of the uses to 235; Hamilton v. Annapolis, &c. E. E. Co., which the appellants wish to put their 1 Md. 553; New York & Harlem R. R. Co. lands. The injury cannot be, as it seems v. Kip, 46 N. Y. 546. to us, so greatly enhanced beyond what is 6 Chicago, Burlington, &o. E. R. Co. v. already done, that their remaining land Wilson, 17 111. 123'; Low v. Galena, &o. becomes useless to them. It is to be pre- E. E. Co., 18 id. 324; Hannibal, &c. R. E. sumed that they will be protected to the Co. v. Muder, 49 Mo.- 165. It may also extent that the act provides for, in their take a location wide enough to admit of a facilities of crossing and eijjoying access to telegraph line. Pratlier v. Jeffersonville, and from the divided parcel of their land, &c. E. E. Co., 52 Ind. 16. by the commissioners, or by the court on ^ Eldridge v. Smith, 34 Vt. 484. the coming in of their report ; and this, we " Bird v. Wilmington & Manchester R R. Co., 8 Rich. (S, C.) Eq. 46. 832 EMINENT DOMAIN. [CHAP. XIV. " to locate and construct branch roads from the main road to any town or places in the several counties through which the said road may pass ; " to appropriate land for " necessary side tracks," and " a right of way over adjacent lands sufficient to enable such company to construct and repair its road," — such company, having located and being engaged in the construction of its permanent main road along the north side of a town, is not authorized to appropriate a tempo- rary right of way, for a term of three years, along the south side of the town, to be used as a substitute for the main track while the same is in course of construction.^ It is no objection that there are other lands in the vicinity which would answer the purpose equally well, which might be acquired by purchase ; as the location of the road, its buildings, and appendages is within the discretion of the corporation and its managers, and the courts will not, except in rare instances, supervise it.^ The company is not confined to its present necessities, but may take such lands as may be rendered necessary by the demands of a growing traffic ; and if it acts in good faith, and there is no evidence of malice or carelessness, the coui-ts will not revise the exercise of its discretion.* But imder this pretence, it cannot acquire lands for the purposes of speculation, or to prevent interference by competing lines, or in aid of collateral enterprises remotely connected with the opera- tions of the road.* Where the charter or general statute gives a rail- way authority to take lands for the purpose of widening its road, the limitation upon such power is the reasonable necessity of the road." And authority given to condemn lands " adjoining their road as con- structed on their right of way as located " does not apply to lands which merely adjoin a side ^rack.^ It need only take the surface of the land, and is not obliged to take the mines and minerals.' Where the statute prohibits the taking of a quarry for railroad purposes within two hundred feet of a dwelling-house, a shanty put up for the sole purpose of preventing the land from being condemned will not operate as a protection.* The stones and gravel taken from one > Cun-ier v. Marietta, Cincinnati, &c. ^ Beek ■». United New Jersey B. E. Co., R. B. Co., 11 Ohio St. 228. 39 N. J. L. 45. 2 New York, &o, B. R. Co. v. Kip, 46 « gtate v. TTnited New Jersey, &c. R. E. N. Y. 546. Co., 43 N. Y. L. 110. " Lodge V. Philadelphia, &c. E. R. Co., ' In re Huddlesfield v. Jacomb, L. R. 8 Phila. (Penn.) 345. 10 Ch. 92. * Rensselaer & Saratoga, R. R. Co. v. * Morris v. Sehallaville Branch of Win- Davis, 43 N. Y. 137. Chester, &c. R. R. Co., 4 Bush (Ky.), 448. SEC. 236.] PUBLIC USE : LEGISLATIVE, ETC. 833 part of the roadway may be employed upon another-part,^ and where a person conveys land to a railway company " for materials ... for the use and purposes of the railroad, and for ho other or different purpose," he cannot prevent the company from Excavating the land to procure such materials, although as a consequence the owner's adjoining land caves into the pit, nor can he recover any damages therefor.2 Lands lying outside the location may he condemned for materials, where the statute authorizes it, but the petition must dis- close the use for which the lands are sought ; ^ but where the statute merely authorizes a railway company to take and use such of the land specified in its location as may be necessary for the purposes of constructing its road, it does not have authority to take compul- sorily and permanently land required only for the purpose of exca- vating materials therefrom.* Sec. 236. FubUc Use: Legislative or Judicial Question. — The question as to whether or not a use is public, so that private property may be taken for its promotion, is a purely political question, and - therefore is for the determination of the legislature.^ The passage of an act extending the right of eminent domain in behalf of any institution is itself a determination that such an institution is a public use, and this determination is conclusive in the absence of 1 Chapin v. Sullivan R. Co., 39 N. H. Cemeteiy Assoc, 66 N-. Y. 569. Compare 561 ; 85 Am. Deo. 207, 237. Chicago, &o. R. Co! v. AViltse, 116 111. 2 Ludlow V. Hudson Eiver R. Co., i 449 ; 24 Am. & Eng. R. Cas. 261. Hun (N. Y. ), ^39. " The authority to determine in any case " Valley R. Co. o. Bohm, 34 Ohio St. whether it is needful to permit the exer- 114. cise of this power (of eminent domain^ , * Evensdeld v. Mid-Sussex 'Ey. Co., 3 must rest with the State itself; and the De G. & J. 286. See also 'S.Y. &c. R. question is always one of a strictly politi- co. V- Gunnison, 1 Hun (N. Y.), 496. caL- character, not requiring any hearing 5 Oooley's Const. Lim. (4th ed.) [538] upon the facts or anj judicial determina- 672 ; Beekman v. Saratoga, &o. R. Co., 3 tion. .... On general principles the final Paige Ch. (N. Y.) 45 ; 22 Am. Dec. 679, decision rests with the legislative depart- 686 note ; 4 Minor's lusts. (2nd ed.) 27 ; ment of the State, and if the question is Whitman v. Wilmington, &c. R. Co., 2 referred to any tribunal for trial) the Han'. (Del.) 514; Buffalo, &o. R. Co. v. reference and the opportunity for being Brainard, 9 N. Y. 100 ; Central R. Co. v. heard are matters of favor and not of right. Pennsylvania R. Co., 31 N. J. Eq. 475 ; The State is not under any obligation to Boom Co. V. Patterson, 98 U. S. 403 ; make provision for a judicial contest upon People V. Smith, 21 N. Y. 595 ; Coster v, that question. And where the case is such Tide Water Co., 18 N. J. Eq. 54 ; Ford«. that it is proper to delegate to individu- . Chicago, &c. R. Co. , 14 Wis. 609 ; 80 als or to a corporation the power to appro- Am. Deo. 791 ; New Central Coal Co. v. - priate property, it is ■ also competent to George's Creek &o. Co., 37 Md. 537; delegate the authority to ' decide, upon the Brooklyn Park Com'rs i*. Armstrong, 45 necessity for^the taking." Cooley's Const. N. Y. 234 ; 6 Am, Rep. 70 ; Tyler v. Lim., (4th ed.) p. 673. Beacher, 44 Vt. 648 ; In re Deanville 834 EMINENT DOMAIN. [chap. XIV. special constitutional ptovision otherwise.^ The power of the legis- lature in this respect, except when restricted by the Constitution, is not subject to the revision of the courts j^ and it may delegate this power to the corporation,^ or it may specifically designate the land and the estate therein to be taken.* But the legislature rarely designates the exact property to be taken ; such matters of detail are usually left to a delegated authority,- generally the railroad com- pany itself in the cases with which we are here concerned, And where this agent of the legislature attempts to appropriate private property its conclusions are always open to review by the courts.^ It is not only the right but the duty of the court to interfere when an abuse of the right granted by the legislature is contemplated whereby the land of an individual will be forcibly taken for a private use.® The legislature is also the exclusive judge of the agencies it wiU employ in carrying its will into effect,' and is the proper body 1 People V. Smith, 21 N. Y. 595 ; Iron R. Co. ■!;. Ironton, 19 Ohio St. 299. See also cases just cited. 2 Lehmicke v. St. Paul, &c., R. Co., 19 Minn. 464 ; Weir v. St. Paul, &c. R. Co., 18 Minn. 177 ; Wilkin v. St. Paul, &e. R. Co., 16 Minn. 271 ; Kramer i-. Cleveland, &o. R. Co., 5 Ohio St. 146 ; De Varaigne v. Fox, 2 Blatchf. {U. S.) 95; Charleston, &c. R. Co. v. Blake, 6 Rich. (S. C; 634 ; Raleigh, &c. E. Co. v. Davis, 2 Dev. & B. (N. C.) 451; Malone v. Toledo, 34 Ohio St. 541 ; People v. Smith, 21 N. Y. 595 ; Hingham, &c. Co. v. Nor- folk Co., 6 Allen (Mass.), 353; Philadel- phia, &o. R. Co. V. Willikms, 54 Penn. St. 103 ; Toledo, &e. E. Co. v. Daniels, 16 Ohio St. 390. ' Charleston, &c. R. Co. v. Blake, 6 Rich. (S. C.) 634; National Docks R. Co. V. Central R. Co., 32 N. J. Eq. 765. * Brooklyn Park Com'rs v. Armstrong, 3 Lans. (N. Y.) 429 ; affirmed, 45 N. Y. 234 ; 6 Am. Rep. 70 ; Eexford v. Knight, 11 N. Y. 308 ; Heywood v. New York, 7 N.Y.314; Stockton, &e. Ry. Co. B.Brown, 9 H. L. Cas. 246 ; In re Gilbert Elevated R. Co., 70 N. Y. 361 ; In re New York Elevated R. Co., 70 N. Y. 327 ; Iron R. Co. V. Ironton, 19 Ohio St. 299 ; Chicago, &o. R. Co. 0. Lake, 71 111. 333 ; Cleve- land, &c. R. Co. ■». Speer, 56 Penn. St. 325 ; 94 Am. Dec. 84 ; Parke's Appeal, 64 Penn. St. 137; Com. v. Franklin Canal Co., 21 Penn. St. 117 ; New York, &c. R. Co. V. Young, 33 Penn. St. 175 ; In re N. Y. Central R. Co., 66 N. Y. 407. 5 See Smith v. Chicago, &c. E. Co., 105 111. 511 ; 14 Am. & Eng. E. Cas. 384; Chicago, &c. Co. ■». Wiltse, 116 111. 449 ; 24 Am. & Eng. R. Cas. 261 ; Central R. Co. V. Pennsylvania R. Co. , 31 N. J. Eq. 475. * Central R. Co. v. Pennsylvania R. Co., 31 N. J. Eq. 475. In Pittsburgh, &c. R. Co. V. Benwood Iron Works, 31 W. Va. 710 ; 36 Am. & Eng. R. Cas. 531, it is held that whether any use is of a private or public character is a judicial question ; that a railroad to be constructed to a private establishment, a steel miU, in order solely to haul freight therefrom, is not a public use for which the power of eminent domain may be exercised. Compare Toledo, &c. R. Co. ». East Sagi- naw R. Co., 72 Mich. 206. In the case of Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461 ; 40 Am. & Eng. R. Cas. 449, it is said that the question of whether any railroad is a public or private use depends upon the right of the public to use the road and to require the company, as a common carrier, to transport freight or passengers ; that the actual amount of business done by the road is immaterial. ' Deanville Cemetery Assoc, 66 N. Y. 569 ; Matter of Fowler, 53 N. Y. 62. SEC. 236.] PUBLIC USE : LEGISLATIVE, ETC. 835 to determine as to the necessity or fitness of taking private property for public use, and as to the extent and manner of the d,ppropriation.^ In New York a general statute authorizes the exercise of the right of eminent domain by all railroad companies properly incorporated under that act. In construing this act the court -holds that when any company seeks to condemn land it must be able to show a legis- . lative warrant, and it must be further able to establish, if the right is challenged, that the particular scheme in which it is engaged is a railroad enterprise within the true meaning of the decisions which justify the taking of private property for railroad purposes, or that the business which it is authorized to carry on is public, so that the proposed taking is for a public use.^ " The general principle is now^ well settled," said 'the court, "that when the uses are in fact public, the necessity or expediency of taking private property for such uses by the exercise of the power of eminent domain, the instrumentali- ties to be used and the extent to which such right shall be delegated, are questions appertaining to the political and legislative branches of the government ; while, on the other hand, the question whether the uses are, in fact, public, so as to justify the taking in invitum of . private property therefor, is a judicial question to be determined by the courts." ^ 1 People V. Smith, 21 N. Y. 595 ; the ISem. York General Eailroad Act of Brooklyn Park Com'rs. v. Armstrong, 45 1850, and is no such public use as will N. Y. 244 ; 6 Am.i Rep. 70 ; Water Works justify the exercise of eminent domain in Co. V. Burkhardt, 41 Ind. 364 ; Holt v. its behalf. Someryille, 127 Mass. 408 ; Bloomfield, » In re Niagara Palls, &o. E. Co., 101 &o. Gq. u. Eichardson, 64 Barb. (N. Y.) N. Y. 375 ; 33 Am. & Eng. R. Gas. 101, 437 ; Brayton v. Fall Eiver, 124 Mass. 95; cUmg Beekman v. Saratoga, &o. E. Co., Haverhill Bridge v. County Com'rs, 103 3 Paige Ch. (N. Y.) 45 ; 22 Am. Deoi Mass. 120 ; 4 Am. Eep. 518 ; Eastern E. 679 ; Inre Cemetery Assoc. 66 N. Y. 569 ; Co. V. Boston, &o. R. Co., Ill Mass. 125; In re Ferry, 98 N. Y. 139, 153. In re Mt. Washington Eoad, 35 N. H. The Constitution of Colorado, Art. II., 134 ; Johnson v. Joliet, &c. R. Co., 23 § 4, declares all railroads within the State 111. 202 ; Bankhead v. Brown, 25 Iowa, to be public highways. It is held that 540. this does not prevent one whose land is '^ In re Niagara Falls, &c. R. Co., 108 about to be taken, from raising the ques- N. Y. 375 ; 33 Am. & Eng. R. Gas. 101. tion as to the character of the railroad as In this case it was held that a railroad a public use in a proceeding by it to con- which does not connect with a highway; demn the land, .since Art. II., § 15 of the which can only be reached by passing constitution specifically provides that the over State ^or private lands ; which can question as to whether or not any use is have no freight traffic over its road ; whose public shall be a judicial one. Denver E., sole business is to convey passenger sight- &o. Co. v. Union Pae. R. Co., 34 Fed. seers along the Niagara Biver, and the Bep.' 386 ; 33 Am. & Eng. R. Cas. 105 season of whose operation is confined to note. See also Chicago, &c. E. Co. v. four months of the year, is not such a Wiltse, 116 111. 449 j 24 Am. & Eng. E. railroad corporation as is contemplated by Cas. 261. 836 EMINENT DOMAIN. [CHAP. XIV, In some of the States the Constitution leaves the question of the necessity of the use to be ascertained by a jury ; ^ and in such cases, as well as where the act conferring the authority to t^ke the lands makes its exercise conditional upon a jury finding that it is neces- sary, it must be found by them, not merely that the taking of such lands "was and is necessary for the purpose of constructing and operating said railroad," but also that it is necessary for the benefit of the public.^ But where there is no provision in this respect, the necessity for the taking, as well as the selection of the land to be taken, rests in the discretion of the corporation. Thus, where the statute authorizes a railway corporation to acquire real estate, " for the purposes of its incorporation, or for the purpose of running' or operating its road," although there are other lands in ibe same vici- nity equally well adapted for the purpose, which possibly might be acquired by purchase, the location of the buildings and structures of the company is within the discretion of its managers, and courts will not ordinarily supervise it. A usufructuary right, either temporary as to its continuance or limited as to its character, does not give to the company the J)rop- erty which it has a right, under the statute, to acquire. And when- ever the proper running' and operating of its road, and the interests of the public, require permanent structures, it is no objection to a proceeding to acquire the land in fee, that the company is a lessee of the premises for a term of years.^ And in England, where a railway company has given notice, to take land for some object which is clearly within their compulsory powers, the court will not interfere to restrain them merely on the ground that they might obtain the same object in some other way without taking the land.* Sec. 237. What Lands^ etc., may be taken. — When authority is given to a railway company to take lands for the construction of its road, and no restrictions are placed thereon, it may take any prop- erty necessary for that purpose which has not already been devoted to a public use. And as will appear further on, propeity already 1 Horton V. Grand Haven, 24 Mich, the legislature alone. People v. Smith, 465. The constitutional provisions in 21 N". Y. 595. New York for trial by jury and due pro- 2 Grand Rapids, &c. K. Co. v. Van cess of law, etc., in respect to the mode Driele, 24 Mich. 409. of ascertaining the compensation to be ' New York, &g. E. Co. v. Kip, 46 paid to the citizen, do not apply to the N; Y. 546 ; 7 Am. Rep. 385. determination of the question of whether ' Lamb v. North London Ey. Co., L. it is needed for a public use. That is for E. 4 Ch. App. 522. SBC. 237.] WHAT LANDS, ETC., MAY BE TAKEN. 837 devoted to a public use may be taken in cases of necessity, as -where the route of one railroad crosses that of another. The mere fact that land proposed to be taken is not needed for the immediate purposes of the petitioner is not necessarily a defence to a proceeding to con- demn it. It is sufficient if the proposed use of the land is clearly embraced within the legitimate objects of the power.^ The company may take or remove dwelling houses on its route,^ rights of way,* even underground,* leasehold estates,^ and indeed estates of all de- scriptions, whether held- by persons under a legal disability or not.* It may take lands used for wharves,'^ land under water,^ lands of the State,^ or of the United States,^" or lands belonging to another cor- poration.^^ So it may take materials, as stones, gravel, etc., from 1 Matter of Staten Island E. Co., 103 N. Y. 251. 2 Braokett v. Ohio, &o. E. Co., 14 Penn. St. 241 ; Well's v. Somerset, &c. B. Co., 47 Me. 3^5 ; Cleveland, &o. E. Co. V. Speer, 56 Penn. St. 325 ; 94 Am. Dec. 84: Unless forbidden to do so by its charter or the general law. 8 Sixth Ay. E. Co. v. K-orr, 72 N. Y. 330 ; Boston Gas-Light Co. v. Old Colony E. Co., 14 Allen (Mass.), 444; Galena, &c. E. Co., 73 111. 494. * Baltimore, &c. R. Co. v. Beaney, 42 , Md. 117 ; Brown v. Corey, 43 Penn. St. 495. 6 Cobb V. Boston, 109 Mass. 438. 8 East Tenn,, &o. R. Co. v. Lane, 8 Head (Tenn.), 63 ; Alabama, &c, E. Co. V. Kenney, 39 Ala. 307 ; North Penn. B. Co. V. Davis, 26 Penn. St. 238 ; Watson V. New York Central B. Co., 47 N. Y. 157. 7 Boston, &c. B. Co. v. Old Colony E. Co., 12 Gush. (Mass.) 605. 8 In re N. Y. Central E. Co., 77 N. Y. , 248. ' Indiana Central R. Co. v. State, 3 Ind. 421. 1" Grintner v. Kansas Pacific E. Co., 23 Kan. 642; Union Pacific B. Co. v. Burlington, &o. E. Co. 3 Fed. Eep. 106 ; United States i>. Railroad Bridge Co., 6 McLean (U. S.) 517. . 11 Bellona Company's Case, 3 Bland (Md.), 442. Although the charter of a coi^ poration is a contract between the State and the corporators, -yet it, like other con- tracts, is made Subject to the right of eminent domain in the State; and the property of a corporation and its fran- chises may therefore be taken for public uses, like the property of individuals, without vioUting the obligation of the contract. West River Bridge Co. v. Dix, 6 How. (U. S.) 507 ; Alabama, &c. E. Co. V. Kenney, 39 Ala. 307 ; State v. Noyes, 47 Me. 189 ; Pierce v. Somersworth, 10 N. H. 369 ; Crosley v. Hanover, 36 N. H. 404 ; Miller v. New York, &c. B. Co., 21 Barb. (N. Y.) 513 ; Bed Biver Bridge Co. t>. Clarksville, 1 Sneed (Tenn.), 176; Armington v. Barnett, 15 Vt. 745 ; White River Turnpike Co. v. Vermont, &c. B. Co., 21 Vt. 690 ; James Biver, &c. Co. v. Thompson, 3 Gratt. (Va.)270. Authority to condemn private lands for use by a corporation includes the right to condemn any estate or interest therein for the same object. Heyneman v. Blake, 19 Cal. .579. The right to receive toll for the .transpor- tation of travellers and others across a river on a public highway, is, at common law, a franchise of the Crown ; and in the State of Georgia it belongs, to the people 'collectively, and may be taken. Young », Harrison, 6 Ga. 130. So may a dwelling- house be taken. Wells v. Somerset^ &c. E. Co., 47 Me. 345. And a mill-priv- ilege. The creation of, a great mill-power is a public use, for which private property may be taken under the Constitution ; and the decision of the legislature as to whether the use is a public one is presumptively correct. Hazen v. Essex Co., 12 Cush. (Mass.) 475. A franchise to build and maintain a bridge may be taken for a high- 838 EMINENT DOMAIN. [chap. XIV. adjoining lands for the construction of its road, and occupy such lands for the preparation of materials taken therefrom, for the road ; ^ and the damages need not be assessed until after the materials are ascertained. So where the charter of a railroad company authorizes it to enter upon lands adjacent to its roadway and occupy them " for any purpose useful or necessary in the construction or repair of such roads/' and providing a mode for the assessment of damages, the company by its workmen is entitled to enter upon lands adjacent to its roadway, and erect temporary buildings for the accommodation of its workmen, — including stables, wagon-houses, blacksmith-shops, depots, etc., — provided it takes no more land than is necessary for its purposes. In a Pennsylvania case ^ which involved these ques- tions, Kennedy, J., said: "It liiight in many cases be utterly way, whenever the legislature deem that the public exigencies require it, reason- able compensation being made. Central Bridge v. Lowell, 4 Gray (Mass.), 474. Indeed, the legislature has general power to pass laws providing for measures of in- ternal improvement of the public rivers and other highways within the limits of the State, subject only to the restrictions and limitations in the Constitution. One of these restrictions is, that private prop- erty shall not be taken or applied to the public use without just compensation. This clause applies to property of a specific, fixed, and tangible nature, cap- able of being had in possession and trans- mitted to another, as houses, lands, and chattels. Homochitto River v. Withers, 29 Miss. 21. The right of the owner of a lot in a town or city to the use of the adjoining street is as much property as the lot itself ; the owner of the lot cannot be deprived of this right by the obstruc- tion of the street without compensation. It is immaterial in such case whether the owner of the lot owns to the middle of the street or not. Lackland ». North Mis- souri R. Co., 31 Mo. 180. The legisla- ture are not restricted to taking a mere easement in the land of a citizen ; they may take the entire right. Railroad v. Davis, 2 Dev. & B. (N^ C.) L. 451. An injury to land which deprives the owner of the ordinary use of it is equivalent to a "taking" of the land; and where no compensation is provided for or made to the owner for the injury sustained, he is entitled Lo recover damages for such in- jury. Hooker v. CanalCo., 14 Conn. 146. Injuries by hacking water by dams, etc., upon the land of another, seem to be embraced within the constitutional in- hibition against injuring property by leg- islative authority without making com- pensation. Wabash Canal u. Spears, 16 Ind. 441. A divestiture of vested rights may be effected not only by a change or destruction of the title to the prop- erty, but also by a destmction of the property itself. Cash v. Whitworth, 13 La. An. 401. A partial destruction, or diminution of value, is a taking of pri- vate property. Glover v. Powell, 10 N. J. Eq. 211. To convert a common high- ■way into a railroad is to impose an addi- tional burden upon the land to the injury of the owner in fee, and is a taking of his property witliin the meaning of the provision of the Constitution, which for- bids such taking without compensation. The State and municipal authorities com- bined cannot confer upon a railroad com- pany the right to construct their road upon a highway without the consent of the owner of the fee, or making him com- pensation. Williams v. New York Cen- tral R. Co., 16 N. Y. 97. 1 Vt. Central .R. Co. i>. Baxter, 22 Vt. 865. But see N. Y., &c. R. Co. v. Gun- nison, 1 Hun (N. Y.), 496. 2 Lauderbrun v. Duffy, 2 Penn. St. 398. SEO. 237.] "WHAT LANDS, ETC^ MAY BE TAKEK. 839 impracticable to accomplish the construction of a railroad without such authority. The legislature, having granted in express terms the right, with the power and authority to construct the road, must be presumed to have likewise granted every incidental power and authority necessary to he exercised in order to carry the power expressly granted into effect, subject however to such qualifications as may be mentioned in the act."^ So it may take springs near its road for a supply of water for its engines, when it cannot be otherwise obtained.^ So it may cross highways ^ or a turnpike road.* . But without express authority it cannot take a highway longitudinally unless it is absolutely necessary ; and the presumption, is in favor of the public, and against the necessity for the taking ; and the question is not one of expedi- ency or of expense, but of practical necessity, to give effect to the grant.^ A grant of power to accomplish any particular enterprise of a public . nature carries with it, so far as the grantor's own power extends, an authority to do all that is necessary to accomplish the principal object. Thus, under a charter authorizing the construction, of a railroad " to the place of shipping lumber " on a tide-water river, the right of location is not restricted to the upland or the shore, but the road may be extended across the flats, and over tide water to a point at which lumber may conveniently be shipped.^ A general power to a corporation to construct a road and bridges between given termini, the natural and convenient route of which 1 Vt. Central E. Co. v. Baxterj 22 Vt. ' Subject of course to the duty to" 365. make compensation to owner of the fee or * Stroheoker v, Alabama, &c. E. Co., to any abutting owner whose easement in 42 Ga. 509. But it must have the same the highway is impaired. State v. Mont- condemned, and pay for itj and it has clair R. Co., 35 N. J. L. 328; ante, no. right, by means of pipes or other- Chapter XIII. wise, to divert the water of a stream for * Baltimore, &c. Turnpike Co. v. Union its uses, to the detriment of a lower mill- R. Co., 36 Md. 224 ; 6 Am. Rep. 397. owner. Garwood v. New York Cent. R. And such crossing cannot be regarded as a Co., 83 N. Y. 400 ; 38 Am. Rep. 452 ; condemnation of the ' franchise of the post, § 255. "Where a spring is destroyed the turnpike company. owner will be entitled to compensation ' State v. Montclfeir R. Co., 35 N. J. therefor, although no part of his lands L. 328 ; Kaiser v. St. Paul, &c. B. Co., 22 have been actually taken. Peoria, &c. R. Minn. 149. See also Baxter i>. Spuyten Co. V. Bryant, 57 111. 473 ; "Winklema^s Duyvil, &o. R, Co., 61 Barb. (N. Y.) 428 ; V. Des Moines, &c. R. Co., 62 Iowa, 1-1 ; ante, §§ 223 et seq., where the subject of 14 Am. & Eng, R. Cas. 186; Parker v. railroads in streets and highways is con- Boston, &c. R. Co., 3 Cush. (Mass.), 107 ; sidered. 50 Am. Dec. 709 ; Aldrich v. Cheshire, » Peavey v. Calais R. Co., 30 Me. 498 ; &6. R. Co., 21 N. H. 359; 53 Am. Dec. Babcocku. Western R. Co., 9 Met. (Mass.) 272 J Lehigh "Valley R. Co. v. Trone. 28 553 : 43 Am. Deo. 411. Fenn. 'St. 206. 840 EMINENT DOMAIN. [CHAP. XIV. would pass several navigable streams, authorizes the corporation to construct bridges .over such navigable streams, in a manner that will not destroy the navigation of them. The power must, neverthfeless, be exercised discreetly, and with a due regard to the privileges of others.^ So authority to a corporation to construct a canal to the river, and there to build wharves, gives them no right to build wharves so a's to cut off a street dedicated to the public, thereby, preventing that access to the water which had been previously en- joyed, — the legislature not having given that right in terms.^ Under the charter of a railroad company providing that lands, when required by the company for the purposes of the road, may be taken at a valuation^ the corporation alone is not allowed to determine what is required for such purposes ; otherwise parcels of land might be obtained, upon payment of compensation, for purposes of speculation or even malicious gratification. Hence an application by it for the appointment of commissioners to assess the value of land should set forth the particular purpose for which it is needed, and should be accompanied with affidavits or other evidence showing that the occasion exists for the appointment. If the land-owner traverses the propriety of the occasion, or its existence, a preliminary trial and decision must be had.^ Where persons have special powers conferred on them by Par- liament for effecting a particular purpose, they cannot be allowed to exercise those powers for. any purpose of a collateral kind. Therefore, a company authorized to take, upon giving compensa- tion, the lands of any person for a definite object, may be re- . strained by injunction from any attempt to take them for another object.* it cannot take lands which are held by a municipal corporation for certain specified purposes, as a reservoir, and water-works for supplying a city with water,^ nor lands which have been laid out as ^ Attorney-General v. Stevens, 1 N. J. is necessary to petitioner for its right of Eq. 369; post, Chapter XV. See also way, side tracks, depot, and depot grounds, Hughes V. Northern Pac. E. Co., 18 Fed. freight yards, shops, and appurtenances, Rep. 106 ; 13 Am. & Eng. R. Cas. — . fot the construction and operation of its ^ Jersey City v. Morris Canal, &c. Co., road." Held, that this was a sufficient 12 N. J. Eq. 547. statement of the purposes for which the ' South Carolina R. Co. v. Blake, 9 land was sought to be condemned. Rich. (S. 0.) L. 228. In Suver i>. Chi- * Galloway ». Mayor of London, L. R. cago, &c. R. Co., 123 111. 293, a petition 1 H. L. Cas. 34 ; 35 L. J. Chan. 477. for the condemnation of certain lands ^ State o. Montclair R. Co., 35 N. J. averred that " a part of each of said lands L. 328. SEC. 237,] WHAT LAKDS, ETC., MAY BE TAKEN, 841 public parks,^ unless the power to do so is given in express terms. The rule may be said to be that when property has already been appropriated to public use, and is in fact in such use in the- hands of one railroad corporation, it cannot rightfully be taken away from such corporation, even by authority of a statute, for the purpose of subjecting it to the same public use iij the hands of another eorpo-^ ration. To warrant the taking of property of one party already appropriated to public use, and placing it wholly or in part in the hands of another party for a public use, it is essential that the new use should be different, and also that the change shall be for the benefit of the public. Whether the new use is different from the present one is a judicial question for the courts to decide ; but vyhere such new use may be in its nature a public benefit, whether the change will be for the, benefit. of the public is a political question to be determined by the law-malkihg power.^ A railroad company was prohibited from holding land, except for the " construction of the road, or for depots^ toU-houses^ and other necessary works," and was authorized to enter upon and occupy land for the purpose of making the road, the- road not to be more than five rods wide, etc. - It was held that the company could occupy for the . purposes of the road no more than the five rods ; and such erections as were necessary for the railroad as such were included by implica- tion ; but that such implication did not extend to a warehouse.* 1 Boston K. Albany R. Co., matter of, 53 withstanding the general statute of the 'N. Y. 574. State, regulating railroads, allowed only ^ Lake Shore, &g. R. Co.- *. Chicago, four rods to be taken. Eaton ». European, &c. R. Co., 100 111. 21. &o. R. Co., 59 Me. 520. In England; 8 Cumberland Valley R. Qo. v. Molan- under the statute, where the taking of a ahan, 59 Penn. St. 23. In Maine under fart of the premises destroys the value of the statute the pui^dses for which a rail-i the remaining portion for the purposes for way company has the power to take lands which it is used, the owner can compel as for public uses, for the locaition, con- the company to take the whole.' Thus a Btmction, and convenient use of its rail- man with Ms dwelling-house in a piece way, are for necessary tracks) side tracks, of ground 2J acres in extent, and sur- . depots, wood sheds, repair shops, and car, rounded by brick walls, used a part of the engine, and freight hoUses. 'Spofford v. land as a nursery-garden for trade pur- Bucksport, &c. R. Co., 66 Me. 26. Where poses. It was held that he was entitled the charter of a railroad company author- under § 92 of the land clauses act, 1845, ized the taking of land by the company to compel a railway company, proposing, for their road, ilot exceeding six rods in withoitt actually touching the house, to width, for a cettain period, and by a later take the green-houses and a pajt which act the time for completing the road was had been planted and used for ornamental ex-tended, and all the rights, etc., of the purposes, to take the whole of the land, company were continued, — ft was held Salter v. Metropolitan District Ry. Co., that during the extended term the com- L. E. 9 Eq. 432. So a manufactory some- pany might take six rods in width, not- tinies Worked, or in pJtrt worked, by watet- voL. II. — a 842 EMINKNT DOMAIN. [CHAP. XIV. Where a railroad company has authority to condemn only one hundred feet in width, for right of way, it is not necessary that the track should be located in the middle of the strip condemned. Not will the fact that it owns land adjacent to that which it seeks to condemn restrict its right of condemnation.^ The corporation may exercise its discretion, as to what land' it will take, and it is no ob- jection, if it acts in good faith, that other lands in the vicinity could have been obtained by purchase that would have answered its pur- poses just as well.^ If it acts in bad faith, equity will interfere, but only where there is an abuse of its powers.^ The fact that it already has a lease of the lands which it seeks to take is no objection,* but it cannot take lands in invitum when it already owns lands equally useful for that purpose.^ Sec. 238. Franchises and Property of one Railroad may be taken ^or another. — There can be no such thing as an extinction of the right of eminent domain. If the public good requires it, all kinds of property are alike subject to it, as well that which is held under it as that which is not. Even contracts and legislative grants, vjhich are beyond the reach of ordinary legislation, are not exempt.^ The legis- lature may therefore authorize a railroad company to locate its road upon land already appropriated, under a previous and equal author- ity, by another railroad company.'' Property appropriated to a par- ticular public use is not thereby withdrawn from the liability to be taken for a different and inconsistent use, whenever in the judgment power, had a reservoir which was supplied 46 N. Y. 546 ; Ford v. Chicago, &c. E. by a goit, into which water was turned Co., 14 Wis. 609 ; 80 Am. Dec. 791. out of a natural river at some distance off. ' Flower v. London, &o. Ey. Co., 2 Dr. At the point where the goit commenced & S. 330 ; Evensfield v. Mid. Sussex Ry. there was a weir in the river ; there were Co., 3 De G. & J. 28S ; Webb v. Manches- shuttles for regulating the flow of water ter, &o. Ry. Co., 4 My. & C. 116 ; Norton into the goit and a mill-house for the v. London, &c. Ry. Co., 13 Ch. Div. 268 ; occupation of a man whose duty it was to Gt. Western Ry. Co., L. R. 7 H. L. 283 ; attend to the shuttles. A railway com- Best v. Howard, 12 Ch. Div. 1 ; Hooper pany proposed to take a part of the weir, v. Bourne, 3 Q. B. Div. 258. shuttles, mill-house, and bed of the stream. * New York, &c. R. Co. v. Kip, 46 N. It was held that they were bound to take, Y. 546 ; 7 Am. Rep. 385. the whole manufactory. Fumiss v. Mid- ' New Central Coal Qo. v. George's land Ry. Co., L. E. 6 Eq. 473. Creek Coal, &c. Co., 37 Md. 537. 1 Stark V. Sioux City, &c. R. Co., 43 ' Beekman ». Saratoga R. Co., 3 Paige Iowa, 501; Dougherty v. Wabash, &e. R. (N. Y.) Ch. 45; New York, &c. E. Co. v. Co., 19 Mo. App. 419. See also Munkers Boston', &b. R. Co., 36 Conu. 196. V. Kansas City, &o. R. Co., 60 Mo. 334. f New York, &c. R. Co. v. Boston, &o. ' Eldredge ». Smith, 34 Vt. 484; R. Co., 36 Conn. 196 ; Matter of Buffalo, Lodge 0. Phila. &c. R. Co., 8 Phila. 68 N. Y. 167. (Penn.), 347; N. Y. &c. E. Co. v. Kip, SBC. 238.] FEANCHISBS, ETC. 843 of the legislature, the public exigency may requi/re. The power of emi- nent domain is a 'prerogative of sovereignty. It is not exhausted ly use, and can only he limited hy the public exigency upon which it is founded} But where land is 'appropriated, pursuant to legislative authority, to an important public use, a subsequent grant cannot be held to authorize the same land to be taken for a use wholly incon- sistent with, and which in the actual circumstances, must necessarily supersede the former use, unless such appears, by express words, or by necessary implication, to be the legislative intent.^ A common instance of the condemnation of property, already devoted to a public use, is seen where one railway company condemns a right of way across the road of another. There is no question now as' to the right to condemn such a right of way, but the necessity for it must always plainly appear.^ But the right is not confined to such cases. Any 1 Little Miami, &c. ^. Co. v. Dayton, 23 Ohio St. 610.' 2 Matter of Buffalo, 68 N. Y. 167; Anniston, &c. B, Co. v. Jacksonville, &c. E. Co., 82 Ala. 297; Little Miami, &o. E. Co. V. Dayton, 23 Ohio St. .510 ; post, p. 874 and notes. Where the legislature has power to require one public easement to yield to another more important, the intention to grant such power' must appear hy express words, or by necessary implica- tion. Such implication can arise only when requisite to the exercise of the power expressly granted ; and it can be extended no further, than the necessity of the case requires. Hiokok v. Hine, 23 Ohio St. 523. A legislative intention to authorize one company to appropriate the land of another cannot be implied from a grant of power to take property couched in gen- eral terms. Matter of Buffalo, 68 'N. Y. 167. But lands of railroad corporations not actually in use by them, or not abso- lutely necessary for the enjoyment of their franchises, are subject to be taken un- der the exercise of the right of eminent domain under legislative authority, the same as lands of individuals, though they may be taken from the actual and profit- able use of the owners. Peoria, &c. R. Co. V. Peoria & Springfield E. Co., 66 111. 174. In order to authorize condemnation, of railroad property for the use of another, the necessity must be made to appear clearly. Mobile, &c. ,B. Co, v. Alabama, &c. E. Co., 87 Ala. 601 ; 39 Am. & Eng. R. Cas. 6 ; United E. Co. v. National Docks, &c. E. Co., 52 N. J. L. 90; 4,4 Am. & Eng. E. Cas. 226. And the right of way over side tracks constructed on ad- jacent land under revocable license can only be acquired on the same terms as where other railrpad property is Condemned. Barre E. Co. v. Montpelier, &c. R. Co., 61 Vt. 1 ; 39 Am. & Eng. E. Cas. 17. 8 Mobile, &o. E. Co. v. Alabama, &o. E. Co., 87 Ala. 501 ; 39 Am. & Eng. R. Cas. 6 ; United, &c. E. Co. ». National Ddcks, &c. E. Co., 62 N. J. L.' 90. In th^ absence of express authority a muni- cipal corporation authorized to appropriate lands for streets has no power to take land occupied and used by a railroad company for its track and road-bed, and proceedings to condemn such land may be enjoined. "It is settled beyond controversy," said the court, " that land already appropri- - ated to a public use cannot be appropriated to another public use, unless the statute clearly confers authority to make a second seizure." City of Seymour v. Jefferson- ville, &c. B. Co., 126 Ind. 466 ; 42 Am. & Eng. R. Cas. 39. See, as sustaining the same view. Crossly v. O'Brien, 24 Ind. 325 (appropriation of railroad's right of way longitudinally as in preceding case) ; Lake. Shore, &c. E. Co. v. Cincinnati, &c. E. Co., 116 Ind. 590 ; 37 Aip. & Eng. E. Cas. 430 ; McDonald v. Payne, 114 Ind. 359; Elliott on Roads and Streets, p. 167. 844 EMINENT DOMAIN. [chap. XIV., land acquired by one railway company under a legislative grant, and unnecessary for the exercise of its franchise or the discharge of its duties, is liable to be taken under the law of eminent domain for the use of another railroad company.^ The general power of municipal corpora- tions to lay out streets does not authorize the longitudinal appropriation of the right of way of a railroad. Valparaiso v. Chicago, - &c. R. Co., 123 Ind. 467 ; 42 Am. & Eng. E. Cas. 685 ; Seymour v. Jeffersonville, &e. R. Co., 126 Ind. 466 ; 47 Am. & .Eng. R. Cas. 39. See also Louisville, &e. R. Co. V. PhUlips, 112 Ind. 59 ; 31 Am. & Eng. R. Cas. 432. In making a railway crossing, the com- pany may, in building a bridge, place temporary scaffolding upon the land of the railway company over whose line the crossing is to be made. Great North of England Ry. Co. v. Clarence Ry. Co., 1 Coll. 507. In this case a mandatory injunction was issued compelling a rail- road company to pull down walls which it had buUt in order to prevent another rail- way company from crossing its line. Great North of England, &o. Ry. Co. v. Clarence Ry. Co., 1 Coll. 507. And where a rail- way company was authorized by an act to build its railway to a certain point, and no compulsory power was clearly given for crossing another railway, that had to be crossed to reach the point named in the act, it was held that the crossing could not be effected without consent, even although the failure to obtain consent woidd prevent the construction of the railway. Clarence Ry. Co. v. Great North of England Ry. Co., 4 Q. B. 46. But one railway company has no right without compensation to take property of another for the construction of its road; the property-rights of a railway company in its right of way are protected by the same restrictions against appropriation by any other company for railroad purposes or other public uses as is afforded by the con- stitution and laws in the case of the private property of an individual. Grand Rapids, &c. R. Co. o. Grand Rapids & Ind. E. Co., 35 Mich. 265. Land already acquired by one railroad corporation, and held for the necessary enjoyment of its essential franchises, cannot be condemned and appropriated in the usual way by another corporation. Lake Shore, &c. E. Co. V. New York, &c. R. Co., 8 Fed Rep. 858 ; In re Cleveland, &c. R. Co., 2 Pitts. (Penn.). 343. Nor has one horse railway company a right, by proceedings of con- demnation, to take for its joint use a part of a previously constructed railway of another company in successful operation. A court of equity will enjoin such a pro- ceeding. Central City Horae R. Co. v. Fort Clark Horse R. Co., 81 lU. 523. * North Carolina R. Co. b. Carolina Central R. Co., 83 N. C. 489 ; Peoria, &c. R. Co. V. Peoria & Springfield R. Co., 66 111. 174. And although a right of way is limited to the u.se of the land for the con- struction and operation of a railroad, this limited use is property, and any interfer- ence with it at any point, by condemna- tion for another railroad, whereby the use is impaired, may be considered in connec- tion with and as affecting its use as an entirety. Lake Shore, &c. R. Co. v. Chicago, &c. R. Co., 100 111. 21 ; 2 Am. & Eng. R. Cas. 454. It is not competent to a later railway company, in the absence of a power for that purpose given in express terms by its special act, to acquire compulsorily the soil and freehold in lands already vested in, and actually used by, an earlier railway company for the purposes of its undertaking j although the land lies within the "limits of djeviation " shown by the parliamentary plans of the later company, and its special act confers upon it the usual general power to enter upon and take such of the lands delineated upon the plans as may be required for the purposes of its railway. Dublin, &c. Ry. Co. !;. Navan, &o. Ry. Co., 5 Ir. Eq. Rep. 393. In a proceeding to condemn a part of the property of one railroad for the use of another, leading from other and different points and regions of country, the use is not the samp as that of the prior road, but is rather a joint or co-operative use, to be exercised and enjoyed by both railroad SEC. 238.] FRANCHISES, ETC. 845 There is no distinctiou within the scope of these principles be- tween corporeal and incorporeal property, and a franchise is subject to the power of eminent domain as well as any other property. No species of property is withdrawn from it, unless by express provisions of the Constitution.^ Indeed the legislatui^e cannot contract with a corporation that its property shall not be taken, so ag to defeat the exercise of the power of eminent domain by subsequent legisla- tures j^ since to admit such a doctrine would enable the legislature to companies, so as to famish the public an additional line of travel and transporta- tion, and may be properly giunted by legislative action. Lake Shore, &c. R. Co. u. Chicago, &c. K.' Co., 97 111. 506 ; 2 Am. & Kng. E. Cas. 440. In a proceed- ing to condemn a right of. way by one railroad company across the right of way of another company upon certain blocks, the company whose franchise is sought to be taken in part will not be restricted in its compensation to the damage to its right of way or railroad property within the blocks. In such case it will be com- petent for the defendant to recover for damages it would be subjected to by plac- ing obstructions upon its right of way, in maintaining and operating the proposed new road, whereby access to different parts of its line would be interfered with, and its capacity for the transaction of business destroyed or impaired. And where land has no market value from the fact of its being used as a right of way for a railroad, and devoted to a special use of making railroad transfers, estimates of its value with reference to such use, by those com- petent to speak in that regard, should be received on the question of compensation to be paid for its condemnation for the use of another (railroad company fot its right ^of way, and it is error to refuse such evi- dence. Lake Shore,, &c. R. Co. v. Chicago, &o. K. Co., 100 111. 21 ; 2 Am. & Eng.E. Cas. 454. A statute authorized a railway company to take for its purposes' laud occupied by anothai- railway company, and provided that all general laws relating to the taking of land for such purposes should govern the proceedings. It was held that the statute was constitutional, although tlie company whose land was taken was thereby deprived of part of its business. Eastern R. Co. v. Boston, &c. E. Co., Ill Mass. 125. 1 James Eiver Co. v. Thompson, 3 Gratt. (Va.) 270 ; Newca'stle E. Co. o. Peru R. Co., 3 Ind. 464j Salem Turnpike v. Lyme, 18 Conn. 451 ; Tuokahoe Canal Co. v. Tuckahoe E. Co., 11 Leigh (Va.), 42 ; La Fayette Plank Eoad Co. v. New Albany R. Co., 13 Ind. 90 ; State v. Canterbury, 28 N. H. 195 ; West Eiver Bridge v. Dix, 16 Vt. 446 ; West Eiver Bridge v. Dix, 6 How. (0. S.) 507 ; Black v. Del. & Ear. Canal Co., 22 N. J. Eq. 130. 2 Backus V. Lebanon, 11 N. H. 19 ; Newcastle E. Co. v. Peru, &o. R. Co., 3 Ind. 464 ; Charles Eiver Bridge v. Warren Bridge, 7 Pick. (Mass.) 344; State v. Hudson Tunnel Co., 38 N. J. L. 648 ; Proprietors of Locks v. Lowell, 7 Gray (Mass.), 223. In White River Turnpike Co. V. Vt. Central E. Co., 21 Vt. 590, it was held that there is no implied contract by the State in a charter of a turnpike or other private corporation, that their property, or even their franchise, shall be exempt from the common liability of the property of individuals to be taken for the public use ; that it may be taten, on proper compensation being made •, that a railroad is an improved' highway ; and that property, taken for its use by author- ity of the legislature, is property taken for the public use, as much as if taken for any other highway ; and that the legisla- ture may delegate its power to a railroad corporation, to take private property for public use in the construction of their railroad, as well as to a turnpike Corpora- tion to take the like property for the public use in the construction of a turnpike road. Also, that where there has been a legislar tive grant to a private corporation to erect abridge, a turnpike, or other public, con- 846 EMINENT DOMAIN. [chap. XIV. divest the State of its sovereignty, and would Qften retard and impede the development of other important enterprises, and is also contrary to sound public policy. It may therefore be said to be well estab- lished that the franchises or property of one railroad may he taken for the construction of another, in all cases where the property of an indir- vidual may be taken, upon making proper compensation therefor} venience, which is not in its terms exclu- sive, there is no constitutional obligation on the legislature, not to grant to a second corporation the right to erect another bridge, oi> turnpike, for a similar purpose, to be constructed so near the former, as greatly to impair, or even to destroy, the value of the former, — and this without making compensation to the first corpora- tion for the consequential injury. But so far. as the real estate of such private corporation, or their interest in real estate, is concerned, they are entitled to the same constitutional protection that an individ- ual would be. The property of either may be taken for public use by authority of the legislature, if compensation be made therefor, but not otherwise. Although the charter of the Vermont Central Kail- road Company does not in tprms empower the corporation to locate their road along the valley of White river, yet it must be taken, in the absence of evidence to show that there was any other practicable route to the proper point on the Connecticut River designated in the charter, or that the route adopted was unsuitable, that the road was properly located in the valley of White river. Under the tenth section of the statute incoi-porating the Vermont Central Railroad Company, that corpora- tion, have power to enter upon and cross a tuiTipike road, as well as any other high- way, making coriipensation to the turnpike corporation for the injui-y they should sus- tain. And the provisions of the charter of that corporation, prescribing a mode for making compensation by appraisal for in- juries to land entered upon by them, may be fairly construed to apply to the prop- erty and interest of a turnpike corporation in the land embraced by their road, and in the road itself, as tangible property. ^ Maeston, J., in Grand Rapids, &e. R. Co. B. Grand Rapids & Indiana R. Co., 35 Mich. 265 ; 24 Am. Rep. 545 ; People V. Salem, 20 Mich. 452 ; 4 Am. Rep. 400. In Bridgeport ». N. Y. & New Haven R. Co., 36 Conn. 255 ; 4 Am. Rep. 65, But- ler, J., obsei'ved : " Undoubtedly the legislature may . . . authorize another company to appropriate its property and its franchise, upon making just compensation therefor." And in N. Y., &c. E. Co. v. Boston, &c. E. Co., 36 Conn. 196, the court directly held that such power might be exercised ; and this was ratified in a later case. Evergreen Cemetery Ass. ». New Haven, 43 Conn. 234 ; Boston Water Power Co. v. Boston, &c. R. Co., 23 Pick. (Mass.) 360; Springfield v. Conn. R. R. Co., 4 Cush. (Mass.) 63. In Boston Water Power Co. v. Boston, &c. R. Co., 23 Pick. (Mass.) 360, a, coi'poration was em- powered by its charter to buUd a dam westerly from Boston to Brookline, over an arm of the sea, and from this main dam to run a cross dam southerly to the shore, so as to make on one side of the cross dam a full basin, and on the other an empty or receiving ba^sin, and to cut raceways from the full basin to the receiving basin, and to have the use of the land in the basins, derived partly from the Commonwealth and partly from individuals, either by purchase or by taking it for public use, at an appraisement ; and to use, sell, or lease the water power thus created ; and the corporation built the dams accordingly, and erected mills. It was Ijeld that it was within the constitutional power of the legislature to authorize a railroad corpora- tion to construct their road across the basins, making compensation to the water- power corporation for the diminution and injury caused thereby to the water power. Also, that the grant of this authority to the railroad corporation could not be con- sidered as annulling or destroying the franchise of the water-power corporation ; and the right of the water-power corpora- tion to use the land constituted an interest SBC. 238.] B"BANCHISES, ETC. 84T This is subject, however, to the limitations which prevail in the taking of all other property ; that is, that the taking shall he only for a public use, and that due compensation shall be made.^ The recognized principle that the charter of a corporation is a and qualified property therein not larger nor of a different nature from that aof|;uired by a grant of land in fee, and did not necessarily withdraw it from a liability to which all lands in the Commonwealth are subject; to be taken for public use, for an equivalent, when in the opinion of the legislature the public Exigency requires it ; and that the effect of the railroad act was merely to appropriate to another and dis-' tinot public use a portion of the land over which the , franchise of the water-power company was to be used. The <;ourt also held that if the whole of a franchise should become necessary for the public use, the right of eminent domain would authorize the legislature to take it, on'payment of a full equivalent. An act of the- legislature, in the exercise of the right of eminent do- main, appropriating to public use, on pay- ment of a full equivalent, property or rights in the nature of property granted by the State to individuals, is not a law impairing the obligation of contracts, within the meaning of the Constitution of the United States. It W3S held that the act authoi-izing the railroad is not liable to the objection that it does not provide for compensation for the damage done to the franchise of the water-power corpora- tion, for the franchise was not taken but only a portion of the land over which it extended, and for all damages occasioned by the taking of land the act makes pro- visioff. The act empowered' the railroad corporation to locate and construct a rail- road "in or near the city of Boston and thence to any part of the town of Wor- cester, in such a manner and form as they should deem expedient." It was held that the act sufficiently declared the public necessity and oonveuieuce of the railroad, and fixed the general termini, and that the delegation to the corporation of the power toi fix the precise termini and the intermediate course between them, and thus to take private property for public use, did not render, the act unconstitu- tional and invalid. Where a corporation was empowered by the legislature, in gen- eral terms, to locate and construct a rail- road between certain termini', and between these termini lay an extensive tract of land already appropriated, under the au- thority of the legislature, to a distinct public use, namely, for mill ponds, by an- other corporation, and this tract might be crossed by the railroad, with some diminu- tion indeed of the raill-power, and ^which might be compensated in damages, but with- out essential injury, — it was considered that there was nothing in the nature of such public use, and in the extent to which'it would be impaired or diminished, from which the power of constructing the railroad over it might be presumed to have been restrained by the legislature. It was held that if -the water in the basins above mentioned was once a part of the Charles river, it ceased to be so after it was effectually separated by the dam and rendered unfit for the general . purposes of navigation : and consequently, that a prohibition to the railroad corporation ■ to build a bridge over the water of Charles river, connected with Boston, or to place any obstruction therein, was not intended to apply to the basins, but only to the waters of Charles river below the dam and open to navigation, and was designed mainly to protect this navigation. Cen- tral Bridge Co. v. Lowell, 4 Gray (Mass.), 482; West River Bridge Co. v. Dix, 6 How. (U. S.) 529; Matter of Kerr, 42 Barb. (IST. Y.) 119 ; Noll v. Dubuque, &c. . E. Co., 32 Iowa, 66; Newcastle, &c. R. ' Co. V. Peru, &c. R. Co. , 3 Ind. 464 ; Peoria, &c. R. Co. v. Peoria & Springfield R. Co., 66 111. 174 ; Northern R. Co. v. Concord, &c. R. Co., 27 N. H. 183 ; En- field Toll Bridge' Co. V. Hartford, &c. R. Co., 17 Conn. 40 ; Chicago, &c. R. Co. v. Lake, 71 111. 333 ; Backus v. Lebanon, 11 N. H. 19 ; Greenwood v. Freight Co., 105 U. S. 13; Lake Shore, &c. R. Co. v. Chicago, &c. R. Co., 97 111. 506. 1 In the case of Enfield Toll Bridge Co. V. Hartford, &c. R. Co., 17 Couh. 40, it 848 EMINENT DOMAIN. [chap. XIV. contract which the legislature cannot impair against their assent, does not preclude the legislature from taking their franchise and property for public use upon making compensation.^ Their powers and privileges, including everything which constitutes their fran- appeared that in 1798 the General Assem- bly of Connecticut created a corporation, for the purpose of erecting and maintain- ing a bridge across Connecticut river between Enfield and Suffield, and granted to such corporation the right of taking certain tolls from persons going over or using the bridge, for the term of one hundred years, or until the cost of erect- ing the bridge should be reimbursed ; and then provided that during snid tenn of one hundred years, no person or persons should have liberty to erect another bridge anywhere between the north line of En- field and the south line of Windsor. In 1835, the General Assembly created an- other corporation with power to con- struct a railroad from the city of Hartford, by the most direct and feasible routs, to the northern line of the State, and thence to Springfield. In the charter of this cor- poration, it was provided that if it should become necessary to erect a bridge, across Connecticut river, it should be used ex- clusively for the railroad travel, and it should not be lawful for the coi-poration to permit any other passing thereon. It was also provided in the charter that nothing 1;herein contained should be con- strued to prejudice or impair any of the rights then vested in the Enfield Bridge Company. The bridge company complied with the requirements of their charter, and were in the exercise of the rights granted, which had a pecuniary value ; , and the cost of erecting the bridge had not been reimbursed. Their bridge, how- ever, was not so constructed or situated as 'to answer the purpose of a railroad crossing. The railroad company laid out an approved route of their road across the Connecticut river, in the most direct and feasible route from Hartford to the north line of the State and thence to Spring- field, between the north line of Enfield and the south line of Windsor ; and were proceeding to erect a structure over the Connecticut river, at that place, for the purposes of their railroad, and for such purposes only, claiming the right so to do under the prpvLsions of their charter, without making 'compensation to the bridge company. At this juncture the bridge company brought a bill in chancery against the railroad company, praying for an injunction , or other relief. During the pendency of the bill, the defendants com- pleted the structure, and used it for the transportation of locomotives and cars, with passengers and freight. The plaintiffs then filed a supplemental bill, showing these facts, and praying the same relief as in their original bill. The stnicture iit. question was built much in the manner common to railroad bridges, and was adapted to and convenient for the passing of locomotives and cars, but not of com- mon ' vehicles ; though foot-passengers, when upon the railroad, could walk over it, in the daytime ; but there was no pub- lic road or highway thel-eto, except the railroad. The defendants purchased the land on each side of the river, where this structure was. This was above tide water, but the river was there navigable for small flat:bottomed steamboats, and other boats of small draft. The erection and use of the bridge by the defendants had a tendency, in some degree, to divert the travel from the plaintiffs' bridge ; but very little, however, if any, more than it would, if it had been placed a little above or below the protected part of the river. It was held that the structure of the de- fendants is a "bridge," and "another bridge," within the meaning of the plain- tiffs' charter ; , that the erection and use of such bridge by the defendants, without 1 See Pittsburgh Junction R. Co. v. Allegheny Valley K. Co. (Penn.), 23 Atl. Kep. 313 ; 29 W. N. Cas. 227 ; Lake Erie, &c. E. Co. V. City of Kokomo, 130 Ind. 224 ; Illinois Central R. Co. v. Chicago, 141 III. 586 ; National Docks, &c. R. Co. i>. State, 53 N. J. L. 217. SEC, 288.] FRANCHISES, ETC. 849 ehise, are held and 'enjoyed in the same manner and by the like tenure^ as all other "property and rights under our constitution and ~ compensatioii to the plaintiffs, was a vio- lation of their grant ; and if the charter of the defendants purported to authorize such acts, it was, so far, unconstitutional and void, as impairing the obligation of a contract. But see coniraj Lake v. Virginia, &e. R. E. Co., 7 Nev. 294 ; Bridge Co. v. Hoboken Land, &c. Co., 13 N. J. Eq. 81; aft'd 1 Wall. (U. S.) 116 ; Piatt v. Covington, &c. Bridge Co., 8 Bush (Ky.), 31. That, a railroad, though granted to a private company, is " for public use," within the meaning of the Constitution ; and the taking of private property for that use ought to he accompanied with eonl- pensation. That the franchise of a toll- bridge company, is " private property," within the meaning of the Constitution ; and a legislative provision authorizing an injury to such franchise, for public use, upop compensatioii made, is not unconsti- tutional. That the acts of the defendants in this case were not authorized by the facts that the site of their bridge was above tide water, and that they owned the land on both sides of the river. That these acts could not be vindicated on the ground that the bridge of the defendants was exclusively adajrted to, and used for, the passage of ' their engines and cars ; nor on the ground that there was no appreciable damage resulting therefrom to the plaintiffs. That although the court eauld not restrain the defendants from building the bridge, according to the speci- fic prayer of the original bill, yet it would,, under the general prayer, pass a decree in favor of the plain tifl's, affording relief adapted to the whole case.' The authority to take private property for public purposes is a right inherent in the government. Varick v. Smith, 6 Paige (N. Y.), CIi. 137; Pisoataqiia Bridge v. New Hampshire Bridge," 7 N. H. 85 ; Backus V. Lebanon, H id. 19. And in this , respect corporations, either public or private, have no rights superior to indi- viduals. Bradley ii. N. Y. & New Haven R. E. Co., 21 Conn. 306; Armington v. Barjiet, 15 Vt. 745. And bath their frari- chises and their property may he taken for the v.se of another, when the right is given either eiq/tressly or hy neceS' sary implication. Bridgeport «. N. Y. & New Haven Jl. R. Co., 36 Conn. 255. And the exercise of, this right is not, if provision for compensation is made, in any sense a violation of the obligations of a contract. In West River Bridge Co. v. Dix, 6 How. (U. S.) 507, Daniel, J., said: "Under every established govern- ment, the tenure of property is derived mediately or immediately from the sover- eign power of the political body organized in such mode oi* exerted in such way as the community or State may have thought proper to ordain. It can rest on no other foundation, can have no other guarantee. It is owing to these characteristics only in the original nature of tenure that appeals can be made to the laws ^ther for the pro- tection pr assertion of the rights of prop- erty. ' Upon any other hypothesis the law of property would be simply the law of force. Now it is undeniable that the in- vestment of property in the citizen by the government, whether made for a pecuniary consideration or founded on conditions of 'civil or- political duty, is a contract bcr tween the State, or the government act- ing as its' agent, and the grantee ; and both the parties thereto are bound in good faith to fulfil it. But into all contracts, whether made between States and indi- viduals, or between individuals' only, there enter conditions which arise not out of the literal terms of the contract itself ; they are superinduced by the pre-existing and higher authority of the laws of nature, of nations, or of the community to which the parties belong ; they are always pre- sumed, and must be presumed, to be known and recognized hy all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control as condi- tions inherent and paramount wherever a necessity for their execution shall occur. Such a condition is the right of eminent domain. This right does not operate to impair the contract affected by it, but recognizes its obligation in the fullest 850 EMINENT DOMAIN. [chap. XIV. laws, and they can claim no special exemption -or privilege therefor. It is subject to the same sovereign right of eminent domain by- extent, claiming only the fulfilment of an essential and inseparable condition. Thus, in claiming the resumption or qualifica- tion of an investiture, it insists merely on the true nature and character of the right invested. The impairing of contracts in- hibited by the Constitution can . scarcely, by the greatest violence of construction, be made applicable to the enforcing of the terms or necessary import of a contract ; the language and meaning of the inhibi- tion were designed to embrace proceed- ings attempting the interpolation of some new term or condition foreign to the orig- inal agreement, and therefore inconsistent with and violative thereof. It then being clear that the power in question not being within the puryiew of the restriction im- posed by the 10th section- of the first arti- cle of the Constitution, it remains with the States to the full extei^t in which it inheres in every sovereign government, to he exercised by them in that degree that shall by them be deemed commensurate with public necessity. So long as they shall steer clear of the single predicainent denounced by the Constitution, — shall avoid interference with the obligation of contracts, — the wisdom, the mode, the policy, the hardship of any exertion of this power are subjects not within the proper cognizance of this court. This is, in truth, purely a question of power ; and conced- ing the power to reside in the State gov- ernment, this concession would sgem to close the door upon all further controversy in connection with it. The instances of the exertion of this power in some mode or other from the very foundation of civil government have been so numerouS and familiar, that it seems somewhat strange at this day to raise a doubt or question concerning it. In fact, the whole policy of the country, relative to roads, mills, bridges, and canals, rests upon this single power under which lands have been always condemned ; and without the exertion of this power not one of the improvements just mentioned could be constructed. In our country it is believed the power was never, or at any rate rarely, questioned ; until the opinion seems to have obtained that the right of property in a chartered corporation was more sacred and intangi. ble than the same right. could possibly be in the person of the citizen, — an opinion which must be without any grounds to rest upon, until it can be demonstrated either that the ideal creature is more than a person, or the corporeal being is less. For, as a question of the power to appro- priate to public uses the property of pri- vate persons resting upon the ordinary foundations of private right there would seem to be room neither for doubt nor difficulty. A distinction has been at- tempted in argument between the power of a government to appropriate for public uses property which is corporeal, or may be said to be in being, and the like power in the government to resume or extinguish a franchise. The distinction thus at- tempted we regard as a refinement which has no foundation in reason, and one that, in truth, avoids the true legal or constitu- tional question in these causes ; namely, that of the right in private persons in the use or enjoyment of their private property to control and actually to prohibit the power and duty of the government to ad- vance and protect the general good. We are aware of nothing peculiar to a fran- chise which can class it higher, or render it more sacred than other property. A ffanchise is property and nothing more ; it is incorporeal property, and is so defined by Justice Blackstone, when treating in his second volume, c. 3, p. 26, of the 'Eights of Things.' It is its character of property only which imparts to it value, and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyments. Vide Bl. Comm. vol. 3, c. 16, p. 236, asto injuries to this'descrip- tion ofi private propei-ty, and the remedies given for redressing them. A franchise, therefore, to erect a bridge, to construct a i-oad, to keep a ferry, and to collect tolls upon them granted by the authority of the State, we regard as occupying the same position with respect to the paramount power and duty of the State to promote and protect the public good as does the right of the citizen to the possession and SEC. 238.] FRANCHISES, ETC. 861 which the property and rights of all subjects and individuals are liable to be taken and appropriated to a public use, in the mariner provided in the Constitution, whenever the legislature shall deem that the public exigencies require it. Thus, a franchise to build and inaintain a bridge and take tolls thereon, may be taken for a highway,^ and a highway may be taken for a railway ; ^ one railway may be taken for the use of another,^ or for the purposes of a high- way,* or indeed for any public use.^ But the condemnation of lands enjoyment of his la,nd under his patent or contract with the State, and it can no more interpose any obstruction in the way ot their just exertion. Such exertion we hold to he not w^ithin the inhibition of the Constitution and no violation of a con- tract. The power of a State in the exer- cise of eminent domain to extinguish immediately a franchise it had granted, appears never to have been directly brought here for adjudication, and conse- quently has not been heretofore formally propounded from this court ; hut in Eng- land this power; to the fullest extent, was recognized in the case of the Gover- nor and Company of the Cast Plate Manu- facturers V. Meredith, i T. R. 794 ; and Lord Kenyon, especially in ithat case, founded solely upon this power the entire policy and authority of all the road and i. Phila- delphia, 47 Penn. St. 325 ; Iron R. R. Qo. V. Ironton, 19 Ohio St. 299 ; Old Col- ony, &c. R. R. Co. V. Plymouth, 14 Gray (Mass.), Hi; Chicago, &c. R. E. Co, v. Lake, 71 111. 333 ; Com. v. Essex County, 13 Gray (Mass.), 239. * Metropolitan City E. R. Co. v. Chi- 852 EMINENT DOMAIN. [OHAP. XIV. owned by one railroad company, but not used for railroad purposes, by another company for use in the construction of a railroad, is unavailing to condemn the franchises of the former. All that is acquired is a right of way, and, incidentally, the power to cross the track of the former where the routes of the two roads cross.^ The taking of the franchise or property of one corporation for the use of another is not a repeal of its charter, but an enforced purchase of its property .2 Nor can it in any sense be said to operate as a violation of the obligations of a contract, because all contracts are subject to certain implied conditions ; and unless expressly exempted there- from, franchises are as much subject to condemnation by the sover- eign power as apy other.^ The property of a corporation- may be condemned in whole or in part,* and the franchise still remain in the company ; and in such a case only the value of the property is to be estimated ; and if the franchise only is taken, the value of the property should not be included.^ In considering the right of one company to condemn and use the property of another company, it makes no difference which is the elder company. If the elder company has exercised its power to condemn property for its right of way, and has constructed and is operating its road, that does not withdraw its property from the equal power of condemnation of its right of way for ai crossing, to be enjoyed in common by a junior company. The right to cross is equal, and does not arise out of cago, &c. R, R. Co., 87 111. 317; Balti- 26; Com. *. Penn. Canal Co., 66 Penn. more, &e. T. Co. v. Union R. R. Co., 35 St. 41 ; Crosby «. Hanover, 36 N. H. 404. Md. ^24; State D. Eastern, &o. R. R. Co., i State v. Eaiton, &o. B. E. Co., 36 86 N. J. L. 181 ; Grand Junction R. R. N. J. L. 181. Co. V. County Commissioners, 14 Gray ^ States. Hudson Tunnel Co., 38 N. J. (Mass.), 553 ; Sixth Avenne R. R. Co. v. L. 548 ; Grand Junction R. K. Co. v. Kerr, 45 Barb. (N. Y.) 188; Massachu- Middlesex, 14 Gray (Mass.), 558. setts Central E. E. Co. v. Boston, &c. ' Richmond E. E. Co. v. Louisa E. E. E. R. Co., 121 Mass. 124 ; Lake Shore, Co., 13 How. (U. 8.) 71 ; Eed Eiver &c. E. E. Co. V. Cincinnati, &o. E. E. Bridge Co. «. Clarksville, 1 Sneed(Tenn.), Co., 30 Ohio St. 604; Kwcastle, &o. 176; Central Bridge v. Lowell, 4 Gray E. E. Co. V. Peru, &c. E. E. Co., 8 Ind. (Mass.), 474; Barber v. Andover, 8 N. 464 ; Alabama, &c. E. E. Co. v. Kenn^, H. 898 ; Amiington v. Bamet, 15 Vt. 39 Ala. 307 ; Union Pacific, &c. E. R. Co. 745 ; James River Co. v. Thompson, 8 V. Burlington, &c. E. E. Co., 3 Fed. Eep. Gratt. (Va.) 170 ; Salem Turnpike Co. v. 106 ; Northern Pacific E. E. Co. v. St. Lyme, 18 Conn. 451. Paul, &c. E. E. Co., 3 Fed. Eeg. 702 ; « Worcester E. E. Co. v. Commission- Towanda Bridge Co., in, re, 37 Leg. Int. ers, 118 Mass. 661 ; Sixth Avenue R. E. (Penn.) 389; Lexington, &c. R- E. Co. Co. v. Kerr, 45 Barb. (N. Y.) 188; Jer- V. Applegate, 8 Dana (Ky.), 289 ; Kerr's sey City, &c. E. E. Co. v. Jersey City Case, 42 Barb. (N. Y.) 119; Com. v. Horse E. E. Co., 20 N. J. £q. 61. Pittsburgh, &o. R. E. Co., 68 Penn. St, » Central Bridge v. Lowell, mte. SEC. 238.] FRANCHISES, ETC. 853 purchase. "When the younger corporation has acquired its right of property in common with the older in a crossing, they become joint and' eq^ial owners, bound by mutual obligations to each other and to the public to so use this common right as to do no unnecessary harm to the other or to the public. It may be provided that all railroad crossings shall be made, kept up, and watchmen maintained at the joint expense of the companies, without regard to the priori- ties of either in the location and construction of its road. The elder company does not possess any paramount or vested privilege to operate its road over that of the younger. Nor can it impose all the burdens of maintaining this crossing upon the road last constructed. When the appropriation, is made, paid for, and put to the new use, both companies stand on a perfect equality as to the rights and privileges in the use of the crossmg.^ , Land already taken by the exercise of eminent domain may be taken by legislative authority for other public uses ; and when so taken, it is presumed that the former use has ceased, or become det- rimental,2 or relatively of less^importance.^ It is not presumed that roads will be laid lengthwise of a right of way, unless it is shown that no other practical route could be had.* Eailroads entering towns are subject, under the general authority given to towns and counties, to have roads and streets laid across their tracks. The franchise is taken subject to any inconvenience that may arise from- such opening.* Eailroads and canals must allow improvements subsequently authorized to cross or tunnel their rights of way, on reasonable terms and proper compensation.® A franchise ^hich is subject to forfeiture is valid until forfeited by some action on the part of the State, and the property of such corporation is still pro- tected by the Constitution, and must be paid for according to its proper value.^ . ' ~ But a franchise cannot be taken under the general law, hut must katie for its basis express legislative authority,^ or must arise from necessary 1 Lake Shore R. R. u. Cincinnati R. R., ^ Illinois Canal v. Chicago R. R., It 30 Ohio St. 60i. 111. 314 ; Richmond R. R. v. Loiiisa R. R., = Miller v. Craig, 11 N. J. Eq. 175. 13 How. 71 ; Northern R. R. v. Concord , 8 Talbot V. Hudson, 16 Gray (Mass.), B. R., 27 N. H. 183 ; Brooklyn Central 417; Millers). Craig, 11 N. J. Eq. 175. R. R. v. Brooklyn City R. R., 33 Barb. * Crossley v. O'Brien, 24 Ind. 325. (N, Y.) 420 ; Glover v. Powell, 10 N. J. * Hannibal v. Hannibal R. R., 49 Mo. Eq. 211. , 480 ; New Orleans v. United States, 10 ' WhitB v. South Shore R. R., 6 Cusli. Pet. (U. S.) 662; Philadelphia R. R. v. (Mass.) 412. Philadelphia, 9 Phila. (Penti. ) 563 ; Little » In re Boston & Albany R. R. Co., 53 Miami R. R. v. Dayton, 23 Ohio St. 510. N. Y. 574; Central City Horse R. R. Co. v. 854 EMINENT DOMAIN. [CHAP. XIV. implication} But this rule must be understood as only applying in the case of public, or quasi public corporations,^ as the property Fort Clark Horse R. R. Co., 81 111. 523. In the case Matter of the City of Buffalo, 68 N. Y. 167, the definition of implica- tion is given, and the construction which must be placed on statutes claimed to confer power by. implication. The court say ; " An implication is an inference of something not directly declared, but aris- ing from what is admitted or expressed. In determining whether a power generally given is meant to have operation upon lands already devoted^ by legislative au- thority to a public purpose, it is proper to consider the nature of the prior public work, the public use to which it is ap- plied, the extent to which that use would be impaired or diminished by the taking , of such part of the land as may be de- manded by the subsequent public use. If both uses may not stand together, with some tolerable interference which may be compensated for by damages paid ; if the latter use, when exercised, must supersede the former ; it is not to be implied from a general power given, without having in view a then existing and particular need therefor, that the legislature meant to sub- ject lands devoted to a public use already in exercise, to one which might thereafter arise. A legislative intent that there should' be such an effect will not be in- ferred from a gift of power made in gene- ral terms. To defeat the attainment of an important public purpose to which lands have already been subjected; the legisla- tive intent must unequivocally appear. If an implication is to be relied upon, it must appear from the face of the enact- ment, or from the application of it to th6 particular subject-matter of it, so that, by reasonable intendment, some especial ob- ject sought to be attained by the exercise of the power granted could not be reached in any other place or manner." In this case, the city proposed to excavate a canal sixty feet in width across the tracks of sev- eral railroads, and entirely through the yard of one of them, at a place where there are numerous tracks, turn-outs, and switches. The present grade of these tracks was but a few feet above the natural level of the canal. The land, if taken by the city, would hs taken in fee, and hence the railroad com- panies would have no right to bridge the canal, and the bridging, if done, would be at an immense expense. This interfer- ence, the court say, would not be a toler- able interference with an existing public use, which may be compensated for in daijiages, but an entire superseding of it by another public use. Both uses cannot stand together. It is not to be presumed that the legislature, by the general terms in which it gave power to the city to take lands, with no especial reference to this particular place or occasion, meant to pro- duce such an effect. A general authority to lay out streets and alleys will not justify the laying-out of a street across depot grounds, when the ease- ment of the raili'oad company and of the city cannot reasonably coexist. Milwaukee R. K. V. Faribault, 23 Minn. 167. In many States the condemnation of private property for public use is governed by gen- eral laws. No restriction on routes is im- posed by the acts, and conflicts have fre- quently arisen. Land already devoted to another public use cannot be taken, under general laws, where the effect would be to extinguish a franchise. If, however, the taking would not materially injure the prior holder, the condemnation may be sustained. New York R. R. Go. v. Metro- politan Gas-light Co., 63 N. Y. 326; Morris R. R. Co. V. Central R. R. Co., 31 N. J. L. 205. Or if the property sought to be con- demned was not in use, or absolutely necessary to the enjoyment of the franchise. Peoria R. R. Co. v. Railroad Co., 66 111. 174 ; Oregon R. R. Co. v. Bailey, 3 Oreg. 164. A corporation, either private or muni- cipal, cannot, under a general power to take lands for a public use, take from another corporation, having the like power, lands or property held by it for a public purpose ' Cakpenter, J., in Evergreen Ceme- tery Assn. V. New Haven, 36 Conn. 242. " In re Boston & Albany E. E. Co., 53 N. Y. 574. SEC. 238.] PEANOHISESj ETC. 865 of any purely •private corporation may be taken in invitum, the same as that of an individual ; ^ and the same is also true as to lands of public or quasi public corporations not in use, and which can be taken without detriment to the public, or interfering with the use to which they are devoted,^ and where there is a necessity for , pursuant to its charter. But an easement may be acquired in imoitum, by legisla- tive authority, in lands held and: occupied for a public use, when such easement may be enjoyed without detriment to the pub- lic or interfering with the use to which the lands are devoted. Lands held sim- ply as a proprietor, but- not used or neceS' sary to the. public purpose, may be taken as of a private person. Matter of Eoches- ter Water Commissioners, 66 U. Y. 413. . Property abandoned by a former corpora- tion may be taken. The takiijig is not a forfeiture of the franchise, for the State alone can declare such forfeiture ; but the land may be taken because not necessary to the old corporation, and iDeeause one company cannot condemn and hold land not necessary or; convenient for its busi- ness, merely to prevent a rival company from competing with it. Oregon E. K. Co. V. Bailey, 3 Oreg. 164. A portion of a horse railroad which constitutes the inost valu- able portion of the road cannot be con- demned under a general law. A crossing may properly be made, but the condemna- tion should be of the whole road, and not of the most valuable portion of it. Central City Horse R. E. Co. v. Ft. Clark Horse R. R. Co., 81 111. 523. When different corpora- tions desire the same location, the one that is prior in point of time is also prior in point of right, and the first location, if followed by construction, operates to secure the prior right. Waterbury i). Dry Dock R. E. Co., 54 Barb. 388; The People v. New York' R. -R. Co., 45 Barb. 73. And, unless an ex- clusive right is given to a particular route, the company which files the first survey is entitled to the route. It does not signify that because the articles of incorporation of one are prior in date to those of the other, or that one has made preliminary surveys over a particular route, or has made pur- chases of individuals along that route, it has acquired a prior right. Until the survey is made and filed, the company would hold the land purchased as any other individual land-owner, and such land could be con- demned by the rival company upon com- pensation. Morris R. R. Co. v. Blair, 9 N. J. Eq. 635. The priority of construction gives no rights where another company has perfected its location first. Chesapeake Canal Co. o. Baltimore R. E., 4 Gill & J. (Md.) 1. A right of way taken and occu- pied l>y one road cannot be taken by an- other, by a general proceeding, without stating in the petition that the land was occupied by another company, and with- out showing any necessity for taking that particular land. Cincinnati R. R. Co. v. Banville R. E. Co., 75 111. 113; San Fran- cisco Water Co. v. Alameda Water Co., 36 Cal. 639. The commissioners who assess the damages cannot determine the priority of right, San Francisco Water Co.,i>. Alameda Water Co. , 36 Cal. 639, nor can the owner r9,ise questions of priority between the two companies claiming the laad, under sepa- rate proceedings, to defeat condemnation. Lake Merced Water Co. v. CowleSi 31 Cal.' 2lS ; Mills Eminent Domain, §§ 46, 47. 1 White Biver Turnpike Co. v. Vt. Central E. E. Co., 21 Vt. -590; Grand Junction E. E. Co. v. Middlesex, 14 Gray (Mass.), 553; State u. Hudson Tunnel. Co., 38 N. J. L. 548 ; Bellona Company's Case, 3 Bland (Md.), 442; Charles River Bridge V. Warren Bridge, 11 Pet. (t. S.) 420 ; Trustees v. Salmon, 11 Me. 109 ; Peoria, &c. R. R. Co. ii. Peoria & S. E. E. Co., 66 111. 174. 2 Matter of Rochester Water Works, 66 N.Y. 413; Matter of New York Central, &o. R. R. Co., 63 N. Y. 326. Lands held by a railway company for other than rail- way purposes may be taken in inrntiim. Iron R. E. Co. v. Ironton, 19 Ohio St. 299; Peoria, P. & J. E. E. Co. v. Peoria, &c. R. R. Co., 66 111. 174 ; In re Rochester Water Commrs., 66 N.Y. 413 ; In re Ninth Av., 45 id. 729. In Eastern R. E. Co. v. Bos- ton & Maine E. '&. Co., Ill Mass. 125, it 866 EMINENT DOMAIN. [chap. XIV. taking such lands for the purpose for which they were taken ;'^ and the question as to whether such necessity exists or not is one of fact for the jury .2 The rule may perhaps he better stated thus : One pub- lic corporation cannot take the lands or franchises of another public corporation in actual use hy it, unless expressly authorized to do so by the legislature ; but the lands of such a corporation, not in actual use, may be taken by another corporation, authorized to take lands for its use in invitum, whenever the lands" of an individual may be sO taken, subject to the qualification that there is a necessity therefor. was held that the legislature had the right to authorize one railroad to take the land of another railroad which it had acquired by eminent domain, ,upon payment of com- pensation ; and the same rule was followed in Chicago, &c. R. R. Co. v. Town of Lake, 71 111. 333 ; New York, &c. R. R. ^o. v. Boston, &c. R. R. Co., 36 Conn. 196 ; City of Bridgeport v. New York, &o. R. R. Co., id. 255 ; i Am. Kep. 63 ; Evergreen Ceme- tery Assoc. V, New Haven, 43 Conn/ 234 ; Matter of Ken', 42 Barh. 119; Backus v. Lebanon, 11 N. H. 19. But to authorize the taking of land already actually devoted to a public use there must be an express ' statutory authority. In re Boston & Al- bany R. K Co., 53 N. Y. 574. Thus, in Central City H.orse B. R. Co. v. Fort Clark Horse, R. R. Co., 81 111. 523, it was held that a part of the line of one railroad could not be taken by a competing road acting under an ordinance of a city council. So, in Evergreen Cemetery Assoc, v. New Haven, 21 Am. Eep. 643, 43 Conn. 234, it was held that, without special statutory authority, or necessary and reasonable im- plication, a municipal corporation could not tate for a highway the land of a ceme- tery, whether such land was actually in use for interments or not. But in Matter of New York Central, &c. R.R. Co., 63 N. Y. 326, it was held that, under the general statute, a railroad could take the land of a gas-light company not in actual use, such company not being a public coi'- poration. In Matter of Rochester Water Commissioners, 66 N. Y. 413, the court said : "An easement may be acquired in mvitum, by legislative authority, in lands held and occupied for a public use when such easement may be enjoyed without detriment to the public or interfering with the use to which the lands are devoted. New York Central & Hudson R. R. Co. v. Metropolitan Gas-light Co., 63 N. Y. 326. So, too, lands held by a corporation or by a public body, but not used for or neces- sary to a public purpose, but simply as a proprietor and for any private puipose to which they may be lawfully applied, may be taken as if held by an individual owner. The property rights of o, corporation in lands not held in trust for a public use are no more sacred than those of individual proprietors. The law only protects from condemnation for public purposes lands actually held by authority of the sovereign power for or necessary to some public pur- pose or use. Lands held upon a special trust for a public use cannot be apj)ropri- ated to another public use without special authoiity from the legislature. " In Peoria, &c. R. R. Co. V. Peoria, &c. R. R. Co., 66 111. 174, it was held that the land of one railroad company not in actual use might be condemned, — "clearly implying," said Brbese, J., in Central City Horse R. R. Co. V. Fort Clark Horse R. R. Co., 81 111. 523, " if it was in actual- use for their track or appurtenances, that it was not subject to condemnation by another road." But in no case can the right be exercised without compensation. Thus, in Southwestern R. R. Co. v. Southern Telegraph Co., 12 Am. Rep. 586, 46 Ga. 4, a statute authorizing a telegraph company to erect its lines upon the way of a rail- road company, without providing for en- forcing payment of damages, was held unconstitutional and void. 1 Evergreen Cemetery Assoc, v. New Haven, ante, 2 Bowler V. Perrin, 47 Mich. ,154. SEC. 238.] FRANCHISES, ETC, 857 This rule was adopted and ably upheld in a Connecticut case.^ In that case the plaintiffs/a cemetery association formed undei" the gen- 1 Evergreen Cemetery Assoc, v. New Haven, 43 Conn. 234. In Baltimore, &c. R. R. Caru. P. W. & Kentucky R. R. Co., 17 W. Va. 812, the defendants, by pro- ceedings in invitum, took a part of the buttress of the plaiutifiE's bridge, erected by it across Wheeling Creek. It ap- peared that the portion taken was not necessary to the support of the bridge and the exercise of the franchise of the com- pany. The court held that its condem- nation was proper. Johnson, J., in a masterly opinion, reviewed the cases, and said: "It is a mistkke to suppose that land in use for certain purposes by a rail- road company is not liable to condemna- tion. Pleas numbers two and three did not so much, as aver that the lands were in present use, and they were, of course, prop- erly rejected. There is Nothing so sacred in the title of a railroad company to prop- erty that it cannot be taken under the exercise of the right of eminent domain. I understand the law to be, that property belonging to a railroad company, a/ndnot in actual use, or necessary to the'proper exer- cise of the franchise thereof, may be taken for the purposes of another railroad under the general railroad law of the State. An express legislative enactment is generally required in order to take such property in use by a railroad company, except where the proposed appropriation would not de- stroy or greatly injure the franchise of the company, or render it difficult to prosecute the object thereof. If such consequences would not follow, a general grant is suffi- cient. Enfield Toll Bridge Co. v. Hart- ford & New Haven R. R. Co., 17 Conn. 40 ; Little Miami R. E. Co. v. Dav, 23 Ohio St. 610; Tuckahoe Canal Co. v. T. E. Co., 11 Leigh (Va.), 79; 3 Gratt. (Va.) 258. In Richmond, &c. E. R. Co. v. Louisa R. R. Co., 13 How. (U. S.) 71, it appeared that the legislature of Virginia ' incorporated the Richmond, Fredericks- burg, & Portsmouth K. E. Co., and in the charter pledged itself not to allow any other railroad to be constructed between the places, or on any portion of that dis- tance, the probable effect of which would be to diminish the number of passengers VOL, II. — 4 travelling between the one city and the other upon the railroad authorized by that act, or to compel the said company, in order to retain such passengers, to redufie the passage money. Afterwards the legis- lature incorporated the Louisa E. E. Co., whose road came from the west and struck the first-named company's track nearly at right angles at some , distance from Richinond ; ahd the. legislature author- ised the Louisa road to cross the track of the other and continue their road to Richmond. The court held that in the last grant the obligation of the contract with the first company was not im- paired within the meaning of the Con- stitution of the United States ; that in the first charter there was an implied reserva- tion of the power to incorporate companies to transport other articles than passengers ; that a Iranehise could be condemned in the same manner as individual property. West Bridge Co. v. Dix et.al., 6 How. (U. S.) 507.* In Grand Rapids, &c. R. R. Co. V. Grand Rapids & Indiana E. E. Co., 35 Mich. 265, it was held that one rail- road has no right to appropriate without compensation the franchise or property of anoth^ for the construction of its road. The fact that propei-ty has been taken for a particular public use does not make it public property for all purposes ; and the property rights of a railroad company ill its right of way are protected by thesame restrictions against appropriation by any other railroad cc^mpany for railroad pur- poses or other public use as is afforded by the Constitution and laws in the case of the private property of an individual. Baltimore & Havre de Grace Transporta- .tion Co. V. Union E. E. Co., 35 Md. 224. It is insisted by counsel for plaintiff in error that where a corporation is author- ized by its charter or a general law to take by condemnation the land required for its purposes, it cannot, under such general authority, condemn property already ap- propriated to public use by another cor- poration ; that to authorize it to do so, the» power must be granted to it by ex- press terms, or by necessary implication. For this position they rely upon B. & M. 858 EMINENT DOMAIN. [chap. XIV. eral laws of the State, owned certain lands in New Haven, which had heen acquired by it under its charter for a burial-ground, and E. B. Co. V. L. & L. E. R. Co., 124 Mass. 368 ; Housatonic R. E. Co. v. Lee & Hud- spn Eiver E. E. Co., 68 N. Y. 391 ; Ever- green Cemetery Association d. New Haven, 43 Conn. 234 ; Matter of B. & A. E. E. Co., 53 N. Y. 574; Matter of City of Buf- falo, 68 N. Y. 167. In the case in 124 Mass., it appeared that the location of the proposed • extension of the defend- ant's railroad, of which the plaintiff com- plained, was twenty-six feet wide, and crossed upon a level two branches of the plaintiffs railroad, ahout a quarter of a mile apart ; and at these crossings, and for the whole distance between them, was, for a small portion of its width, upon the plaintiffs depot and station grounds ; but, for the greater part of its width, was along and within the plaintiffs location of 1847, and included a great part of the signal houses, of the store house, of the paint shop, and of the carpenters! shop, and of the freight platform ; that the construc- tion of the proposed extension of the de- fendant' s.road would be a serious injury to the plaintiff, and would greatly interfere with its necessary use of the tracks, signal houses, etc. The court, in its opinion, quoted with approbation what had been said in the case in 118 Mass., — that 'a charter to build and maintain a railroad between certain points, without describing its course and direction, but leaving that to be determined and established by the Corporation, as pi-ovided by the general laws, does not prima fade give any power to lay out the road over land already de- Voted to and within the recorded location of another railroad. It is not to be pre- sumed that the legislature intended to allow land thus devoted to one public use to be subjected to another, unless the au- thority, is given in express words, or by necessary implication.' In the case in 68 N. Y., it was held that 'the legislature may interfere with property held by a cor- poration for one public use and apply it to another, and may delegate the power so to do to another corporation ; but such dele- gation must be in express terms,' or arise from necessary implication. In determin- ing whether a power to take lands given in general terms was meant to have opera- tion upon lands already devoted by legis- lative authority to a public purpose, it is proper to consider the nature of the prior use, and the extent to which it will be impaired or diminished by the taking for the subsequent use. A legislative intent to subject lands devoted to a public use, already in exercise, to one which might thereafter arise, will not be implied from a gift of power made in general terms without having in view a then existing and particular need for the subsequent use, — at least where both uses cannot stand together, and the latter, if exer- cised, must supersede the former.' It will b^ observed that in these last cases the ititerference With the franchise was great, and much injury would have been sustained by the companies if their property had been taken. But the taking of a portion of a buttress might inflict no injury at all upon the Baltimore & Ohio E. K. Co. The courts will take care to see that one railroad company is not materi- ally injured for the benefit of another; and where no such material injury will result, the onward march of improvement demands that a great work of internal im- provement shall not be impeded by imag- inary injury to another corporation. The instruction was properly refused. It is assigned as error that the court refused to set aside the verdict and giant a new trial. Upon a careful examination of the evi- dence, we think it fully sustains the ver- dict. But it is insisted by counsel for the plaintiff in error that the evidence shows that more land was included in the upper parcel of land sought to be condemned than was necessary for the purposes of petitioner, and the verdict ought there- fore to be set aside. It is true, as con- tended by the counsel, that private prop- erty can only be taken for a public use, and no more of such property can be taken than is necessary for such use, which must be determined when proper from the stat- ute upon the subject and the facts appear- ing in the case. Therefore, when it clearly appears that the property taken, or a part thereof, is not necessary for the public SEO. 238.] FEANCHISES, ETC. 859 were laid out afid used by it for that purpose. In 1873 the city of New Haven, in pursuance of its corporate powers or otherwise, ordered the widening and straightening of Winthrop Avenue be- tween certain points; and for that purpose took apportion of the plaintiff's land bordering on the avenue, about eight feet in width, covered with shrubbery, evergreens, and other ornamental trees. The land was shown to be in actual use by the association and necessoury for its purposes, but was not shown to be necessary fdr the purposes of widening the avenua Caepentee, J., in the course of his opinion upon the question whether the defendants could take the land for the purposes named, said : " The power which the city has to take the land is the same as that conferred by general statute upon towns, there being no sjiecial power grantM to take any part of this Cemetery for such purposes. The petitioners are incorpora- ted under the statute authorizing and regulating the organization of associations for the purpose of procuring and establishing burying gtounds or places of sepulture. The association holds the land com- prising the Cemetery, subject to the provisions of the law authori- zing its organization, and it is now held by the association, except use for which such condemnation is sought, as to such Jart the taking is Un- lawful. Matter of Albany Street, 11 Wendi (N. Y.) 149 ; Dunn v. Charleston, Harp. (S. C.) 189 ; Buckingham v. Smith, 10 Ohio, 288. But does it appear in this record that more land was condemned than was necessary for the public use set iorth in the petition ? The only evidence before the jury on that subject was brought out on the cross-examination of the en- gineer of t"he petitioner, who said : ' S'or any structure which petitioner would flut on the parcel of land just south of Wheel- ing Creek, it would only need twelve and One-half feet on each side of its centre line. For the remainder of the parcel west of this twenty-five feet petitioner had no immediate use, and witness could not say that it would ever be useful. It was oue of those cases where railroads some- times condemn all of the ground that is rendered useless to the former owner. In Cases where the remaindei' of the ground was cut ofiF from connection with the ad-. Jacent land, and Where the damages for crossing amounted to as much as the whole laild was wbrtK, it was just as Well to take the whole.' Whether the" whole of the upper parcel south of Wheeling Creek was necessary for the use of petitioner was not an issue before the jury. The petition particularly described it, and claimed that it was necessary for the use of the peti- tioner, which was a public use. Thfe defendant, in the county coiirt, did not take issue on that allegation in the peti' tion. The only issues as to that parcel were, 'that the land last hereinbefore men- tioned was, at the time of the beginning of the said condemnation proceedings, and still is, held and owned by the said de- fendant for the purpose of being used in its said business, and was at the time of the beginning of said proceedings, and still is, in use by the said defendant in its said business ; and that in following the gen- eral course of the p6titioner's road it is not necessary for the said petitioner to build its said line of road over said last-men- tianed landK Therefore it is clear that' the evidence is not responsive to any issue before the jaty." 860 EMINENT DOMAIN. [CHAP. XIV. such parts thereof as have been sold to he used and occupied as places of hurial, which comprise a large part thereof. " It is further found that the land so taken is needed for the pur- poses of the cemetery, and is not needed for the purpose of widening and straightening Winthrop Avenue. The use of land for a hurjdng- ground is a public use, and, for such a purpose it may be taken, if need be, under the right of eminent domain.' The fact that this land is held and used under a deed from the former owner, and was not taken by proceedings in invitivm, cannot affect the nature of the use. It is held by as high and sacred a tenure as it would have been if the sovereign power of the State, in the exercise of the right of emi- nent domain, had been called to the aid of the petitioners in acquir- ing it. . The question then is, whether land already devoted to a public use can be taken by the public for another use which is incon- sistent with the first, without special authority from the legislature, or • authority granted b.y necessary and reasonable implication. There are cases in which it would seem that lands used for a burying-ground, have been taken by the municipal authorities for highway purposes.^ But whether they were taken under a general or special authority does not appear ; nor does it appear that there was a necessity for taking them in order to exercise the powers granted ; but it does ap]^ear that' the question whether the public had a right so to take them without the consent of the owners, was not made and decided in either of the cases referred to. " That the legislature has the power to authorize the taking of land already applied to one public use, and. devote it to another is unques- tionable.2 And this power may be granted either by express words or by necessary implication. When the power is granted to municipal or private corporations in express words, no question can arise. In this case it is not claimed that the respondents were expressly author- ized to take the petitioners' land. The question then arises whether, by a reasonable construction of the statute authorizing the respondents to lAy out streets and highways, they had the power to take any portion of the petitioners' land for that purpose. The language is general and broad enough to embrace all lands, whether used for one purpose or another ; nevertheless, there are cases in which it will be presumed that the legislature intended that it should not apply. It will be 1 In the Matter of Albany Street, 11 Worcester E. R. Co., 23 Pick. Mass. 360; "Wend. (N. Y.) 149; in the Matter of Springfield v. Conn. E. E. Co., 4 Cnsh. Beekman Street, 4 Bradf.(N.Y.SurT.) 503. (Mass.) 63; Bridgeport v. New York & * Boston Water Power Co. v. Boston & New Haven E. E. Co., 86 Conn. 255. SEC. 238.] FRANCHISES, ETC. 861 presumed that land applied to one pubUo use should not be taken and devoted to another use inconsistent \yith the first unless there is a necessity- for it. Thus, it will be presumed that the legislature did not intend to authorize a town to lay out .a highway along the track of a railway, or along the bed of a canal, as the two uses cannot well exist together. The one necessarily excludes the other, ^o also a railroad company, unless expressly authorized, cannot lay its track, upon a highway ; and when permitted, except in special cases, a sub- stitute road must be provided. On the other hand, a highway may cross a railroad or a canal, as there is a manifest necessity for it, and it may be done without destroying the franchise, in whole or in part, and without seriously interfering with its exercise. "The same land cannot properly be used for burial-lots and a public highway at the same time. The two uses are inconsistent with each other. Land, therefore, applied to oiu use, should not be 'taken for the other, except in cases of necessity. That brings us to • inquire whether the necessity exists in the present case. The facts show that it not only does not exist but that there is hardly an apology for taking the land in question. If taken, it renders a very large number of lots in the cemetery inaccessible to carriages. T^at inconvenience can be remedied only by making a new avenue. That can onlyTse done by taking six lots sold to private parties, aU of which have been actually used for burial purposes. How the association is to acquire the title to those lots unless the owners voluntarily part with it, it is not easy to see. On the contrary, there is no dif&qulty in effecting the desired improvement by taking land on the other side of the street. ... It can make no difference that the part taken was used for shrubbery and a carriage-way. A ceme- tery includes lots not only for depositing the bodies of the dead, but also avenues, walks and grounds for shrubbery and ornamental pur- poses. All must be regarded alike aS consecrated to a public and sacred use. The idea of running a public street, regardless of graves, monuments, or the feelings of the living, through one of our great public cemeteries, would be shocking to the moral sense of the com- munity, and would not be tolerated except upon the direst necessity. Yet the right to do so must be conceded, if the action of the respon- dents in the present case can be vindicated. The right to take a part of a cemetery, implies the right to take another, and the right to take one part implies the right to take the whole." The action of the defendant in taking the land was declared null and void. 862 EMINENT DOMAIN. [OHAP. XIV. To justify an interference with a vested franchise by granting another to a rival company, upon the ground that it is taking the former franchise under the right of eminent domain, it must appear that the government intends to exercise this sovereign right, by clear and express terms, or by necessary implication, leaving no doubt ot uncertainty respecting such intent. It must also appear by the statute that they recognize the right of private property and mean to respect it, and the act conferring the power must be accompanied by just and constitutional provisions for full compensation to be made to the owner. If the government authorizes the taking of property for any use othef than a public one, or fails to make com- pensation, the act is simply void ; no right of taking as againgt the owner is conferred, and he has the same rights and remedies against a party acting under such authority as if it had not existed. In general, therefore, where any act seems to confer an authority to take property, and the grant is not clear and explicit, and no com- pensation is provided by it for the owner or party whose rights are - injuriously affected, the courts will presume that it was not the intent of the legislature to exercise the right of eminent domain, but simply to confer a right to do the act, or exercise the power given, on first obtaining the consent of those affetited.^ "An exclusive privilege to build a bridge is a franchise, not only as to the right to build and maintain it, but as to the exclusion of all other such grants, though the limits of such exclusion extend beyond the limits set for the location of the proposed bridge. And such an exclusive privilege is not held subject to any implied con.- dition of yielding it up without compensation if required by the public convenience. Although it is competent for the legislature to grant to others a franchise which interferes with such exclusive right, if they provide in the new grant for compensation to be made, they cannot make such new grant without providing for compensation. It is not enough that the grantees of the former privilege may have an action for damages against the grantees of the latter,^ 1 Boston & Lowell R. U. Co. v. Salem Smith, 30 N. Y. 44; Oswego Bridge Co. & Lowell, &o. R. R. Co., 2 Gray (Mass.), v. Fish, 1 Barh. Oh. (N. Y.) 547 ; Mo- 1 ; Matter of Flatbuah Avenue, 1 Barb, hawk Bridge Co. v. TTtica, &e. R. R. Co., (N. Y. ) 286 ; Matter of Hamilton Ayenuej 6 Paige (N. Y. ), 554. In the case of the 14 id. 405. Binghampton Bridge Co., 8 Wall. (U. S.) 2 Piscataqua Bridge Co. v. New Hamp- 61, it was held, reversing the same case in shire Bridge Co., 7 N. H. 35 ; Charles 27 N. Y. 87, that an enactment by a State River Bridge v. Warren Bridge, H Pet. in incorporating a company to build a toU- (U. S.) 420 ; Fort Plain Bridge Co. v. bridge and take tolls fixed by the act, that SEO. 238.] FEANCHISES, ETC. 863 There is no difference in this respect between lands taken by the corporation under the right of eminent domain, and those which were acquired by it by purchase. Both are entitled to equal protection in its hands, so long as necessary for its use.^ The circumstance that the corporation has taken, lands under this power, for what the legislature ^as adjudged to be a public use, does not atrip thern of their character as private property, in the hands of such corporation, so as to authorize the legislature to give to another corporation the right to take any part of them for its use without compensation.^ Whatever inay be the nature of the title ac provisions. . . . But if such an appro- priation is once made, the property cannot afterward be interfered with, or the right of holding and enjoying it in that definite manner be interrupted or disturbed, except under the provisions of some subsequent statute, expressly or by necessary implica- tion, authorizing its subjection to public service in another and different manner. In-the Housatonic E. R. Co. v. Lee & Hud- son E. E. Co., 118 Mass. 391, the court held that a tfharter to build and maintain a railroad between certain points, without describing its course and direction. . . . does not, prima fade, give any power to lay out the road over land already devoted to and within the recorded location of an- other railroad. It is not to be presumed that the legislature intended to allow land thus devoted to one public use to be sub- jected to another, unless the authority is given in express words or by necessary im- plication, — citing Springfield v. Connecti- cut River R. R. Co., 4 Cush. 72. 'A general authority to lay out a railroad does not authorize a location over land already devoted to another public use.' Mills on Em. Dom. § 46. Numerous other cases are cited by appellee's counsel in support of this doctrine, which I need only refer to. Boston & L. R. R. Co. v. Railroad Co., 2 Gray (Mass.), 35-37 ; Hickok v. Hine, 23 Ohio St. 523 ; s. o. 13 Am. Eep. 255 ; In re Buffalo, 68 N. Y. 171 ; Milwaukee, &o. R. R. Co. V. Faribault, 23 Minn. 169 ; Contra Costa R. R. Co. v. Moss., '23 Cal. 325 ; San Francisco & A. W. Co. v. Water Co., 36 jd. 639 ; Barber v. Andover, 8 N. H. 398; West Boston Bridget. County Conim'rs, 10 Pick. (Mass.) 270; J» re Boston & A. R. B. Co., 53 N. Y. 574, The appropriation of private property for the use of a railroad by a railroad company is by authority pf the act of the legislature, which authorized the constraction of' the road, which Coolet says, supra, must be held for this purpose the law of the land. And the County Court, it seems to me, could' have no jurisdiction, in the face of such legislative action, to divert it from such use, and appropriate it to another, un- less authorized by a subsequent act of the legislature in express terms, or by neces- sary implication ; and to this result the authorities before cited lead. The power being extraordinary and against common right must be 'construed strictly. The omission of the legislature to embody these restrictions in the statute,- in the revision of 1849, as recommended by the revisers, I do not think can be construed as a legis- 874 EMINBNX DOMAIN. [chap. XIV, Thus, in a Massachusetts case,^ this question was considered, and it was held that while an act of the legislature which authorizes the construction of a railroad between certain termini, without describ- ing its precise course and direction, does not prima facie confer power to lay out the road along and upon an existing highway ; yet that it is competent for the legislature to grant such authority either by express words or hy necessary implication, and that such implica- tion may result either from the language of the act, or from its being shown iy an application of the act to the subject matter, tliat the rail- road cannot hy reasonable intendment be laid in any other manner.^ lative construction of the law in conflict with what seems to he the whole current of judicial decision. But I deem it un- necessary to pursue this inquiry further. The special act of the legislature which authorized the Fredericksburg & Alexan- dria company to construct this road, ex- empted, as I have endeavored to show, the property of the Alexandria & Washington company which the Fredericksburg & Al- exandria company, in laying out its road, appropriated to itself from condemnation by that company, it being an interference with the chartered rights and franchises of the other company. And by virtue of that exemption it could not be taken by the Alexandria & Fredericksburg company, and it was not within the jurisdiction of any court to condemn it, because by that exemption it was not subject to the right of eminent domain. Upon this aspect of the ease I will content myself with a refer- ence to the able opinion of the judge of the Circuit Court. Whilst I have confi- dence in the correctness of the ground first taken in this opinion, I am inclined to the opinion that upon this view also the County Court exceeded its jurisdiction in its judg- ment of condemnation, and that conse- quently its said judgment may be attacked collaterally." 1 Springfield v. Connecticut Ei ver R. R. Co., i Cush. (Mass.) 63. Little Miami, C. & X. R. R. Co. v. Dayton, 23 Ohio St. 510 ; Morris & Essex R. R. Co. V. Newark, 10 N, J. Eq. 362 ; Chicago, Rock Island, &c. R. R. Co. v. Joliet, 79 III. 26 ; Rex v. Pease, 4 B, & Ad. 30 ; New York, &o. R. R. Co. v. Boston, &c. R. R. Co., 36 Conn. 136; Contra Costa E. R. Co. V. Moss, 23 Cal. 323 ; White River Turn. pike Co. V. Vermont Central R. R. Co., 21 Vt. 690; Central City Horse R. R. Co. v. Fort Clark Horse R. R. Co., 81 111. 523 ; Com. V. Old Colony, &c. R. R. Co., 14 Gray (Mass.), 93. The presumption is against the ability of one company to condemn the property and franchises of another corpo- ration; and in order to sustain such action th^ words of the act must be clear and distinct. State v. Noyes, 47 Me. 189j Worcester R. R. Co. v. Railroad Commis- sioners, 118 Mass. 561 ; Milwaukee R. R. Co. V. Faribault, 23 Minn. 167 ; In re Ninth Ave., 45 N. Y. 729; Parker v. Sun- bury & E. R. R. Co., 19 Penn. St. 211; Hatch 'u. Cincinnati & I. R. R. Co., 18 Ohio St. 92; In re New York Central & H. R. R. Co., 77 N. Y. 248; In re City of Bufialo, 68 N. Y. 167; Commissioners v. Holyoke Water Power Co., 104 Mass. 446; Chicago R. I. & P. R. R. Co. v. Joliet, 49 111. 26 ; Little Miami C. & X. R. R. Co. v. , Dayton, 23 Ohio St. 510. If not conferred in express words, the authority must be by necessary implication. Thus, if the con- struction of the road between the termini as laid down in the charter would be im- possible unless the road of another com- pany is partly taken, the power to take such road would be implied. Central City Horse R. R. Co. v. Ft. Clark Horse R. R. Co., 81 111. 523; Springfield w. Conn. River R. R. Co., 4 Cush. (Mass.) 68; New York H. & N. R. R. Co. V. Boston, H. & E. R. R. Co., 86 Conn. 196 ; Bridgeport v. New York & N. H. R. R. Co., 36 Conn. 255; Worcester E. R. Co. v. Railroad Com- missioners, 118 Mass. 661 ; Pennsylvania R. R. Co,'s Appeal, 3 Am. & Eng. R. R. Cas. 507. But where this circumstance does not exist, the power will not be im- SEC. 239.] EXCLUSIVE GRANTS. 875 The right to tunnel a street' may be implied from the circum- stance that it is impossible to reach the designated terminus without doing so ; ^ but the company is liable for injuries to-adjacent build- ings from such operation, regardless of the question of negligence.^ In the construction of railways, it necessarily occurs that high- ways and other railways must be crossed, and although the power is not expressly given, it is necessarily inferred. But authority to take the bed either of a highway or railway longitudinally for any considerable distance will not be inferred, especially where it is possible to build the road Without doing so.^' A tbwn or other mu- plied. In re Boston & A. R. R. Co., 53 N. Y. 575; St. Louis, J. & C. R. R. Co. v. Trustees, 43 111. 303; Danbury & N. R. R. Co. V. Norwalk, 37 Conn. 109 ; Atlanta v. Central R. R. Co., 53 Ga. 120 ; Hannibal V. Hannibal & St. J. R. R. Co., 49 Mo. 480; Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345 ; Boston & M. R. E. Co. v. Lowell & L. R. R. Co., 124 Mass. 368. The right of one railroad to cross another may be implied when a longitudinal taking cannot be justified. There is^ often a ne- cessity for one when there is no necessity for the other, and- the instances are rare in which a longitudinal taking can be justi- fied. In re City of Buffalo, 68 N. Y. 167; ' Housatonic R. R. Co. «. Lee & H. R. R. Q Eaton V. B. C. & M. R. E., 51 N. H. » Pollys. Saratoga & Washington R. R. 504. Co., 9 Barb. (N. Y. ) 449. 2 Ariinond v. Green Bay, &o. Canal * Sabin v. Vennont Central R. R. Co., Co., 31 Wis. 816. 25 Vt 363. SEC. 240.] WHAT CONSTITUTES A " TAKING." 881 In au English case a corporation, having, under the act of Parlia- ment, right to take land for certain public works, gave notice to the owner of the inheritance, of an intention to take it. They then entered regularly upon the land for the purpose of surveys, etc., and afterwards their contractors, without the knowledge of the corpora- tion, but with the assent of the occupying tenants, brought some wagons, and rails, and other implements on the land, and there left them, but did not commence the works, or do any damage. This was done without obtaining the assent of the plaintiff, but it became known to his agent in the end . of December. In the begin- ning of the following February, without any previous communica- tion with the defen(jlants, he filed his bill for an injunction to restrain them from allowing the wagons, etc., to remain on the land, and from taking possession of the land> until they had complied with the provisions qf the lands clauses consolidation act. It was held that though the corporation were bound by the acts of their contractors, the acts done were not a taking possession within the meaning of the act, and that the bill was improperly filed.^ If a person's land is taken, he is then entitle(i to have his damages assessed for probable consequential injuries ; but except under pecu- liar start;utes, a person where land is not taken has no remedy, either by having his damages assessed under the statute or by an action therefor. Thus, if a railway is laid along the border of a person's land, but.no portion of his land is taken, while he is burdened with the duty of fencing occasioned by such act, yet his damages are purely consequential ; ^ and the same is also true of the construction of a railway so near the buildings of another that the vibration and jarring from the motion of its trains injures its walls, and the smoke and cinders from the engines are cast thereon from a proper opera- tion of the road ; the rule is, damnmn absque injuria^ The making of a public improvement in the vicinity of private .property, which is incidentally injured thereby, but no part of which is taken or used for the construction of the work, is not a taking of private property for public use, within the constitutional provision 1 Standish v. Mayor, &o. of Liverpool, juries resulting to adjacent buildings from 1 Drew. 1. ' ■ tunnelling under a street, which were 2 Kennett's Petition, 24 N. H. 139. the natural and inevitaUe result of such ° Coggswell 11. N. Y. & N. H. E. R. operation, whether guilty of negligence in Co., 48 if. Y. Superior Court, 31. But prbsecuting the work or not ; and that, see Baltimore & Potomac E. E. Co. .«. there heing no other remedy provided by Eeaney, 42 Md. 117, where it was held statute, an action for the damages would that a railway company was liable for in- lie. 882 EMINENT DOMAIN. [CHAP. XIV. requiring the payment of compensation.^ Thus a corporation, in constructing their works, raised a high embankment near to, and in front of, the plaintiffs house, so that the plaintiff could not pass and repass to and from the same, and for this injury the plaintiff claimed damages. It was held that as the charter of the company only re- quired them to make compensation for lands which were taken for the corporate purposes, they were not liable for such consequential damages ; that simply affecting land injuriously, by the construction of their works, was not a taking of it for public use, within the pur- view of the Constitution; that the company were justified, under their charter, in building their road in a prudent and reasonable manner, and could not be subjected to damages resulting to indi- ' viduals whose lands had not been taken by them.^ But where a railroad company, having power by charter to take land, and being made liable for all damages to any person or persons, excavated a . lot adjoining the plaintiff's, so as to weaken the foundations of his house, and erected an embankment in the highway opposite his house, so as to obscure the light, and render it otherwise unfit for use, — it was held that although this did not constitute a taking of the plaintiff's land within the meaning of the charter, yet the com- pany were'bound to make compensation for consequential damages.' It is not a good objection to a proceeding to ascertain the value of land taken for public use by authority of law, that it had been previously taken possession of without authority.* Nor will a company be deprived of the power to take land for the necessary use of their works, when the emergency arises, by having previously 1 Alexander v. City, of Milwaukee, 16 Barb. (N. Y. ) 405. Compare Eed River Wis. 247. Bridge Co. v. Clarksville, 1 Sneed (Tenn.), 2 Eichardson v, Vermont Central R. R. ' 176. Where a corporation located a plank- Co., 25 Vt. 465. , road upon a county road, it was held that 8 Bradley v. New York & New Haven the corporation was liable for damages K. R. Co., 21 Conn. 294. Injury to a caused by making such road, that is, by mill-privilege upon a navigable stream, by endangenng the stability of houses along a rise in the waters caused by improve- the line of the road by excavations. The ments in the navigation, was held not a grant of the right of locating a plank- taking of private property which is a sub- road upon a county road does not ex- ject of compensation. Canal Appraisers elude the idea that the owner of the soil V. Tibbits, 17 ^Wend. (N. Y.) 571. over which the road passes should have Though a franchise, that is, the right to compensation for any injttry he Inay sus- maintain a toll-bridge, is private prop- tain by changing a county road into- a erty,'a diminution of its productiveness, plank -road. Williams v. Natural Bridge by means of the opening of a free high- Plank-Road Co., 21 Mo. 580. way in the neighborhood, is not a taking _* Borough of Harrisburg v. Crangle, 3 of it within the provision of the Consti- W. & S. (Penu.) 460. tution. Matter of Hamilton Avenue, 14 SEC. 241.] CONDITIONS PBBCEDENT. 883 attempted to take it for other purposes, not -warranted by their act.^ But the power of taking land by a company is exhausted by a location ; the company cannot be indulged with another cBoice.^ But where a railway company has power to take a certain quantity of land, that power is not exhausted by their taking in the first instance a smaller quantity, if they- subsequently find that the quantity comprised in their first purchase is not sufficient for their works. Thus, a railway company, having given notice of their intention to build a railway under an individual's" land by. means of a tunnel, and to treat with him for the amount of compensation, are not thereby precluded from afterward giving notice of their inten- tion to take, or from appropriating the surface of the same land, where they find that the making of the tunnel is Impracticable or dangerous to the buildings on the surface.''' Where the legislature confers the power upon two railway com- panies to purchase compulsorily the same piece of land, and one company has taken the land and constructed its road upon it, equity will enjoin the other company from proceeding to take it compulsorily for its use, until the conflicting rights of the com- panies are determined by a trial at law.* Sec. 241. Conditions precedent. — Where the statute imposes any conditions upon a railway corporation, precedent to iheir right to condemn lands for the use of their railway, they must be fully and specifically performed, to give validity to their proceedings. Thus, if the charter or general law requires that tbey shall first apply to the owners, and endeavor to agree upon the amount of compensation,' unless it is shown that the owner is absent or legally incapacitated, they cannot proceed to take the necessary proceedings for condemnation, until they have made a hondfide effort to comply with the statute.^ And the petition should set forth that a ioriA 1 Webb V. Manchester & Leeds Ey. ' Reitenbau^h v. OhesteT Valley R. R. Co., 1 Eng. Ry. Cas. 576; Simpson v. Co., 21Penn. St. 100. Before condemna- Lancaster & Carlisle Ry. Co., 4 Eng. Ry. tion of private land for the, use of the Cas. 625 ; Williams ■». South Wales Ry. United States can be had under the act Co., 3 De G. & S. 354. of 1859, the government must have sought 2 Neal V. Pittsburgh, &o. R. E. Co., 2 to buy at a stated price, and it is only Grant's Cas. (Penn.) 137. a disagreement upon the price wMeh can ' Stamps V. Birmingham, &c. Ry. Co., authorize proceedings for condemnation 7 Hare, 251. under this act. Gilmer ■». Lime Point, 19 * Manchester, &c. Ry. Co. v. Great Cal. 47. In Staoey ». Vt. Central R. E. Northern Ry. Co., 9 Hare, 284; Laucas- Co., 27 Vt. 39, Isham, J., said: "It ter & Carlisle Ry. Co. v. Maryport & Car- appears from the case also, that in Febni- lisle Ry. Co., Eng. Ry. Cas., 504. ary, 1850, the defendants changed theii 884 EMINENT DOMAIN. [chap. XIV. fde effort has been made to agree with the owner, or a sufScient excuse therefor.^ It would be impossible to define specifically what line of roaJ by locating the same on other land than that of the plaintiff, and upon which their road has been constructed. That alteration of their line of the road has superseded the necessity of taking the plaintiff's land on which the road was first surveyed. The right of the corporation to change the line of their road is given them by the 15th section of their ohai-ter, which provides that if the directors of that company, for any cause, shall deem it ex- pedient, they may change the location of such parts of their road as they shall deem proper. That change in the line of their road, however, will operate aa an abandon- ment of their former survey on the plain- tiff's land, so that the company can no longer claim any right or interest in the land itself, or to any easement growing out of it, in consequence of that survey having been made. That doctrine has been expressly hold in Massachusetts, in relation to higliways, Commonwealth v. Westborough, 3 Mass. 406, and Same v. Cambridge, 7 Mass. 163, and the same effect, we think, will follow in cases of this character. The result is, that the plaintiff retains his land free from any in- cumbrance arising from that location or survey of the road. That abandonment of the line of the road over the plaintiff's land, however, does not necessarily super- sede his claim for damages. The right to recover those damages, whether liquidated by the agreement of the parties or by com- missioners, is not necessarily defeated by that act of the company. If the land has once been taken, if the company, for any period of time, have been seised and pos- sessed of the land so appraised, or if the plaintiff has had, at any time, a perfected right to the damages awarded by the com- missioners, a subsequent abandonment of that location, and the establishment of a new line for the road, will have no effect to defeat the plairtiff 's claim for the dam- ages which have been awarded to him. Westbrook v. North, 2 Me. 179 ; Hamp- ton V. Coffin, 4 N. H. 517 ; Harrington V. Comm'rs of Berkshire, 22 Pick. (Mass.) 267 ; Hawkins v. Rochester, 1 Wend. (N. Y.) 53. Under such circumstances the plaintiff would be entitled, on the abandonment of that location, to the land free from any encumbrance of that charac- ter, and also to the damages which were allowed to him. The important question in the case therefor^ arises, whether the Vermont Central Railroad Company have ever been seised or possessed of this land of the plaintiff 's, and for which the award of the commissioners was made ; or has the plaintiff ever had a vested right to the damages which were awarded on that sur- vey 0^ the road. The determination of these questions depends upon the construc- tion which is to be given to the 7th sec- tion of the charter of this company. We obviously can derive but little aid on this subject from adjudged cases in other States, unless they have arisen upon some statu- tory provision, embracing substantially the specific provisions of that section of this charter. By that section it is pro- vided that when land or other real estate is taken by the corporation for the use of their road, and the parties are unable to agree upon the price of the land, the same shall be ascertained and determined by commissioners, together with the charges and costs acci-uing thereon, and upon the payment of the same, or by depositing the amount m a bank as shall be ordered by the commissioners, the cmnpany shall be deemed to he seised and possessed of all suA lands as shall have been appraised. This provision is quite specific in stating what act on the part of the corporation vests in them a right to the land. They derive no title to the land or any easement grow- ing out of it from the fact of their having surveyed the road across the plaintiff's land, or having placed that survey on record, nor by having the damages ap- * Eejtenbaughu. Chester Valley R. Co., 21 Penn. St. 100. If, however, the peti- tion in the first instance fails to set forth these facts, it may be amended. Penn- sylvania R. Co. V. Porter, 29 Penn. St, 165. SEC. 241.] CONDITIONS PRECEDENT. 885 a railway company must do in order to entitle it to condemn lands* for its use, because in every case it depends upon the provisions of -praised by commissioners, and causing their award to be recorded. Tlie statute is express, that the payment or deposit of the money according to,th^ award must be made before any such right accrues. Un- til that payment is made, the company hare no , righ£ to enter upon the land to cpnstruct the road or exercise any act of ownership over the same. A court of equity would enjoin them from exercising any such right, or they might be prose- cuted in trespass at law. The survey and appraisal .of damages are merely "prelimin- ary steps to ascertain the terms upon which the land can be taken for such purposes, if the company shall see fit to use the same for the construction of their road. If it is accepted, and the companj' conclude to take the land, that acceptance and that taking is consummated only by a payment or deposit of the money, for the use of the owner of the land, as awarded and directed by the commissioners. The caseof the Balti- more & Susquehanna E. R. Go. v. Nesbit et al., 10 How. (U. S. ) 395, is very decis- ive on this question. In that case land was taken by the company under a charter granted by the State of Maryland. Under a provision in their charter, the damages were assessed by a jury, and that assess- ment was confirmed by the court. In that case, as in this, the road was located, and the damages conclusively determined and Settled, so that no further litigation could arise on that matter. In that case as in this also, the charter provided that the payment, or tender of payment, of such valuation ' should entitle the company, to the estate or land as fully as if it had been conveyed. The charter of that company and of this, in all particulars important upon this question, are substantially simi- lar. The court renjarked, ' that it is the payment or tender of the value assessed by the inquisition which gives the title to the oonipany, and consequently without such payment or tender no title could, by the very terms of the law, have passed to them.' They further observed, 'that it can hardly be questioned, that without acceptance in the mode prescribed, the company were not bound ; that if they had been dissatisfied with the estimate placed upon the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, be- fore such acceptauce, wholjy to renounce the inquisition. The proprietors of the land could have no authority to coerce the company into its adoption.' The sam. doctrine was sustained- in the case of Bloodgood D.Mohawk & Hud. E, R. Co., 18 Wend. (if. Y.) 10, 19. In that case the company were authorized to enter upon the land and make such examina- tions and surveys as were necessary to de- termine the most advantageous route for the road, and to take the same for that purpose ; provided; that all land so taken shajl be purchased by the company of the owner, and in c^se of a disagreement as to the price or value of the land, commission- ers were to be appointed to determine the same, and upon payment of such da/mages with the costs, or depositing the same in a banJc 'in the city 'of Albany, then the corpo- ration shall be deemed to be seised and pos- sessed of the land so appraised. It will at once be perceived, that the provisions of that charter are not only similar in this respect to that of the Vermont Central Railroad Company, but that they are ex- pressed in very similar language. The Chancellor remarked 'that this provision should be considered in the nature of a condition precedent, not only to the ac- quisition of the legal title to the land, but also to the right to enter and take the permanent possession of the land for the use of the corporation.' It is very clear, from these cases, that as the Vermont Central Railroad Company have never paid or deposited the amount of that award of the commissioners for the benefit of the plaintiff, as ordered by them, that the company h^ve never acquired any right or title to the land appraised, or to any ease- ment growing out of it ; and that none can now be acquired under those proceedings. The abandonment of that location, and the adoption of a new route, and the con- struction of their road thereon, will pre- vent the acquisition, of any such title or the perfection of any such right. It is 886 EMINENT DOMAIN. [chap. XIV. •its charter or the general law under which it is formed, and in all cases all the conditions precedent to the exercise of this power insisted, however, that though the corpora- tion have no right to the land, and have never been seiaed or possessed of the same, yet that the plaintifl, under the provisions of that act, has acquired a vested right to the damages awarded by the commission- ers, and that that right became vested in him when the award was made and re- corded. The statute requires 'that the commissioners siiall determine the dam- ages which the owner of the land may have sustained, or sliall be likely to sus- tain, by the occupation of ike same for the pv/rposes aforesaid.' The actual taking and occupation of the same for such pur- poses is the foundation upon which the binding character of that award is made to rest. It is those circumstances which the commissioners are to take into con- sideration in ascertaining the amount of damages. If, therefore, the land has never been taken by the company in a manner in which they can legally occupy the same, no damages ha^e arisen, or can arise, from that cause. When the corpo- ration obtains a vested right to the land, or to the easement, the landholder has a . vested right to the damages ; that specific act which vests the right in them, gives also a vested right to the owner of the land. These respective rights are correla- tive, and have a reciprocal relation ; the existence of one depends upon the exist- ence of the other. If the corporation have no vested right to the land, the owner oi the land has no vested right to the price which was to be paid for it. This is the very ground upon which the cases were sustained, to which we were referred in the 2 Me. 179 ; 4 N. H. 517 ; and 1 Wend. (N. Y.) 53. Two of these cases were in assumpsit, and the other in debt for the recovery of a sum awarded for land taken for similar purposes. The landrowner was allowed to recover his damages, and was treated as having a vested right to them ; as a vested right to the easement in the land had been acquired, for which those damages had been given as a compensa- tion. That is also the doctrine of the case in the 10 How, {U. S.) 895, for on that ground alone was sustained the con- stitutionality of the act of Maryland, in causing to he vacated the fkst appraised, and ordering a new inquisition to he taken. As there had been no payment or tender of the damages assessed, there was no vested right to the land, and for that reason the act was held constitutional in vacating the first inquisition. On the same ground, and, for that reason specific- .ally assigned, the court in the case of Har- rington D. Berkshire, 22 Pick. (Mass.) 267, granted a mandamus to enforce the pay- ment of damages awarded to the land- holder. The road had been laid, the title to the easement under their statute had vested, and for that reason, the party had a vested right to the damages awarded. We know of no case, neither have we been referred to any, in which such dam- ages have been recovered, or iu which the owner of the land has been considered as having a vested right to the same, when the corporation had acquired no right to the land, or to an easement growing out of it. There is no propriety or consistency in saying that the plaintiff shall recover this compensation for land which has never been taken or purchased from him ; that this company shall pay for a right or an easement, which they never had, and which they never could legally enjoy. If the line of this road had been so varied as to ran over another portion of the plaintiff's land, it would hardly be con- tended that he would be entitled to a double compensation ; yet such would be the result if this action can he sustained. The cases in England have no definite bearing upon this subject, nor are they in conflict with the constniotion we have given to the provisions of this charter. In that country, generally, the railroad is located, and its courses defitiitely defined, when the application is made to Parlia- ment for a charter. When a charter is granted, it is based upon that location, and authority is granted to take that specific land for that purpose. The owner of the land is required to specify the sum he demands for it, and if not assented to, inquisition is to be made to determine the value of the land. Burkinshaw ». Bir- SEC. 241.J CONDITIONS PfiECEDENT. 887 must be performed, and all the steps required must be taken.^ If the statute requires that the line shall be surveyed and the proposed raingham & Oxford Ey. Co., 5 Eng. Law & Eq. 4-92. Under those charters it has heen held that if no inquisition is made, the company are bound to pay the sum speci- fied, and not only has payment been en- forced by mdndaimus, but the company have, by the same process, been compelled to carry into effect all the powers delegated to them by their charter. Blakemore v. Glamorganshire Canal Navigation, 1 My. & K. 162, 163 ; Regina v. The Eastern Counties Ky. Co., 10 Ad. & El. 531 ; Eegina v. The York & North Midland Ry. Co., 16 Eng. Law & Eq. 299. That doc- trine, however, has since been overruled in the Exchequer Chamber, to which the last cited case was eanied on a writ of error. York & N- Midland Ry. Co. ■». Kegina, 18 Eng. Law & Eq. 206, 207, 208. Those charters are now treated as confer- ring conditional powers to take the land on making compensation for it. The ob- servations of Jbkvis, C. J., in the last case, are very appropriate and applicable to the rights of the parties under this charter : ' The company may take land ; if they do they must make full compensa- tion. The words of the statute are per- missive, and only impose the duty of making full compensation to each land- holder, as the option of taking the land of each is exercised.' This case, as well as the case of Burkinshaw v. The Birming- ham & Oxford Ry. Co., 4 Eng. Law & Eq. 489, establishes the correlative and reciprocal relation existing between the right of the company to the land, and the right of the owner of the land to the dam- ages awarded. If the land has been taken in such a manner as to vest in the com- pany a right to the use and occupancy of ' it, compensation is to be made ; but no right to such compensation can exist where the land has not been taken. The authorities upon the questions involved in this case, we think, are more than ordina- lily clear and decisive, and fully establish the principle that the plaintiff has no claim to these damages, as the land has never been taken or occupied by the cor- poration for the purposes mentioned in their charter; and that the payment of the money as awarded by the commissioners is necessary, and is to be treated as a con- dition precedent to the right of the com- pany to the land, or to any easement growing out of it. In Neal v. Pittsburgh & Connellsville R. R. Co., 31 Penn. St. 19, it is held that where a railway com- pany had located their road through a man's land and had the damages assessed by viewers and confirmed by the court, the owner of the land was entitled to exe- cution for the amount as upon a judgment in his favor, although the company had not taken possession, and had instituted pro- ceedings to ascertain the advantages of another route with a view to change the location. The court say : ' Though rail- road companies may make experimental, surveys at pleasure before finally locating their road, yet cei-tainly it has never been granted to them to have experimental suits at law as a means of chafffering with the land-owners for the cheapest route.' " 1 Whiteman v. Wilmington, &c. E. R. Co., 2 Harr. (Del.) 514 ; Blaisdell v. Winthrop, 118 Mass. 138 ; Adams v. Saratoga, &. R. R. Co., 10 N. Y. 328 ; White V. Nashville, &c. R. R. Co., 7 Heisk. (Tenn.) 518 ; Lund v. New Bed- ford, 121 Mass. 286 ; Wamesit Power Co. V. Allen, 120 Mass. 352 ; City of Buffalo, in re; Derby v. Framingham, &c. R. R. Co., 119 Mass. 316 ; Levering v. Philadel- phia, &c. R. R. Co., 8 W. & S. (Penn.) 458 ; O'Hara v. Pennsylvania R. R. Co., 25 Penn. St. 445 ; Wilson v. Lynn, 119 Mass. 117 ; Penn. R. R. Co. v. Porter, 29 Penn. St. 165 ; Blaisdell?). Winthrop, 118 Mass. 138. The" statute must be -strictly followed, and if the proceedings are required to be brought in the name of the people, they will be void if not so brought. Stan- ' ford V. Worn, 27 Cal. 171 ; Owners . Moulton, £iC. R. Co., 57 Iowa, 249, it appeared that in 1865 the Iowa, Central R. Co. was or- ganizei for the purpose of constructing a railroad from the " south line of the State by way of Oskaloosa to Cedar Falls, in Black Hawk County," and previous to J,868 the company procured the right of way for the purpose aforesaid from the town of Moultou to Albift, and did some grading and other work on the right of way prior to and during 1868. In 1869 the Central R. Co. of Iowa was organised, and it acquired by purchase all the rights of the company first named south of Oska' loosa, including the right of way, grading, and other work done thereon between Moulton and Albia, and it was the right of way between said towns which the de- fendant sought to condemn under the right of way act. Beginuing in 1869, and including 1871, the Central R. R. Co. of Iowa constructed and purchased a line of railroad from Albia north to Northwood, and the same has been continuously oper- ated. After 1871 additions were made to the road consisting of about ten miles of coal and side tracks, and the erection of four station-houses, and in that and the Buooeeding year the plaintiff caused the line between the towns of Albia and Moul- ton to be surveyed. In October, 1874, the company became financially embarrassed, and a receiver was appointed, who had charge of the road until June, 1879. Pre. vious to that time the road was sold under a decree of foreclosure and purchased by a trustee, who, under the direction of the court, turned it over on the seventeenth day of June, 1879, to the plaintiff, who had been duly organized in May of that year. The condemnation proceedings were commenced on the fifth day pf July, 1879, and tie notiee to the sheriff directed him to have the right of way appraised as the property of the Iowa Central R. Co., or its representatives under and in pursu- ance of an act of the General Assembly passed in 1870, as amended by, an act passed in 1874, to amend section 1260 of the Code. The notice directed the sheriff to have assessed the road-bed and right of way, " excluding the work done thereon." The act of 1870 is in substance the same as sections 1260 and 1261 of the Code,, and the act of 1874 amending section 1260 is as follows ; "In any case where a rail- way constructed in whole or in part has ceased to be operated or used for more ,than five y^ars, or in any case where the construction of a railway has been com- menced by any corporation or person, and work on the same has ceased, and has not been in good faith resumed for more than five years, and the same remains unfin- ished, it shall be deemed and taken that SEO. 242.] ABANDONMENT, EFFECT OF : WHAT IS. 891 But an abandonment may be inferred from a mis-user, — as, if the property is rented to tenants for the purposes of a business entirely such corporation or person thus in default has abandoned all right and privilege over so much as remains unfinished, as afore- said, in faVor of any other corporation or person which may enter upon such aban- doned work, as provided in section 1261 " of the Code. This statute went into force on the fourth day of July, 19'ii. Section 1261 of the Code provides that the right of way, work, and grading so abandoned may be condemned as other property ; "but parties who have previously re- ceived compensation in any form for the right of way on the line of such aban- doned railway which has not been re- funded by them shall not be permitted to recover the second time ; but the value of such road-bed apd right of way, excluding the work done thereon, when taken for a new company, shall be assessed to the former company or its legal representa- tive." Sebvees, J., said : " Has there^been an abandonment of the line between Moul- ton and Albia within the meaning and intent of the statute ? It is insisted there has not, because there must be an aban- donment of the whole road or projected line ; that the statute does not contem- plate a part of a road shall be regarded as abandoned when the greater portion has not only been constructed, but is being, actually operated. If such had been the legislative intent, it would, it is said, have been without doubt clearly expressed as being that such part which has ceased to be operated, or upou which part work has ceased for the period named, should be regarded as abandoned. The (juestiou to be determined is one of fact, and no gen- eral rule can be laid down applicable to all cases, The statute clearly, we think, contemplates there may be an abandon- ment of a part of a constructed railway. But the fact that the work of construction has ceased for the period named, may, or may not, amount to an abandonment of a part of a contemplated road. Each case must be solved in accordance with the facts and circumstances. The usual and ordinary mode of constructing railways, we understand, is to commence at a recog- nized terminus, and prosecute and finish the work of construction continuously from such point. Such - was not done in this instance. But when the work of construction was resumed in 1869 at Albia, it proceeded steadily and contin- uously from that point north, instead of south to Mbulton. If there were sufS- cient reasons for taking this course, the evidence fails' to so show. The right, of way in question had been procured at that time, and grading had been done thereon. "Why was it not then, or at some subse- quent time, utilized ? Nothing, except the survey above stated, towards the con- struction of the road was done for a period of five years preceding the fourth day of July, 1879. The case, therefore, is within the statute, unless the reasons urged by tlie plaintiff excuse performance, or tend to show an intent not to abandon the portion of the road aforesaid. The survey alone does not, we think, show a resump- tion of the work of construction in good faith, conceding it was made after July 4, 1874. Nor can the construction of coal and side tracks, and the erection of station- houses, between Albia and- Northwood, have any tendency to show the road be- tween Moulton and -Albia had not been abandoned. Whether it was absolutely essential the side tracks aforesaid should be constructed has not been shown. But conceding it was, then the intention to imnrove and extend the road between Albia and Northwood has been shown, while that portibn between Moulton and Albia was, for the time being at least, abandoned or permitted to go to waste. There is not a single fact or circumstance which tends to show an intent to resume work south of Albia until after the com- mencement of the condemnation proceed- ing ; and all there is now is an assertion of a \ purpose on the part of the plaintiff to either proceed with the work of construction or have it done by some one in its interest. If this be sufficient under the statute, it comes too late. The fact that the company under whom the plaintiff claims became financially embarrassed and was placed in the hands of a receiver, and therefore could not finish the work of oonstriic- 892 EMINENT DOMAIN. [chap. XIV. foreign to that for which the land was taken,^ although from the carrying on of such business hy the tenants the company derives a profit through the increase of its freighting business. So, as it is the duty of a railway company to operate the whole of its road, if it neg- lects to do so for any considerable period without a valid excuse for its neglect to do so, such non-user will operate as an abandonment.^ The application of land devoted to one public use, in whole or in part to another public use, not subsiantialiy different in its objects and purposes from the former, does not operate as an abandonment. Thus, it has been held that a canal may be converted into a railroa,d,* or a plank-road into a railroad,* subject only to the payment of such damages to the land-owner as he may sustain from the change in tion, cannot be regarded as a valid excuse under the statute, which embraces all cases or 'any case.' We have no doubt such a case was contemplated by the statute. Because of financial embarrassments, the construction of railways frequently cease for a longer or shorter period, and the General Assembly in its discretion has fixed a time when the rights obtained by such company shall be regarded as aban- doned." 1 Proprietors of Looks v. Nashua, &c. R. Co., 104 Mass. 1. As to abandonment of location, see post. Chapter XV. 2 People V. Albany, &c. K. Co., 24 N. Y. 261. ' * Hatch 0. Cincinnati, &c. R. Co., 18 Ohio St. 92. * Brainard v. Missisquoi R. Co., 48 Vt. 107. In this case it is held that there is no such disparity in the nature of the use of a plank-road and a railroad as to entitle the owner of the fee, whose land was condemned for the former, to damages for its conversion into a railroad, as no different or greater burden was imposed upon his land by the latter than by the former, and that the damage he sustained by reason of being deprived of the use of the plank-road being such as he sustained in common with all the rest of the public, he was entitled to no 'compensation there- for, but that he was entitled to damages for the expense of constructing a private way from his premises, rendered necessary by the construction of the railroad. This doctrine, which upon its face seems ab- surd and contrary to all authority, is rec- oncilable with the cases and with human expeiience, upon the grourfd that, from the facts found, the plaintiffs estate sus- tained' no additional damage from the con- struction of the railway, except as to the expense of the construction of the new way,^ which was allowed him ; and the - statement of the court, that as no different or greater burden was imposed upon his estate he was not entitled to damages, merely amounts to this, — that while the plaintiff sustained no additional damage from the construction of the railway in place of the turnpike, except as to the expense of the new way, his damage must be restricted to that. If a new burden was not imposed upon his estate, he would not have been entitled to damages to the extent of the expense of constructing the private way. The truth is, that, owing to the location of the plaintiffs estate, there were no other consequential damages to which he was entitled. If there had been, upon the same principle that he was al- lowed damages for the expense of the pri- vate way, he was entitled to have them assessed to him also; and the case is in no sense an authority for the broad propo- sition-to which it has been cited by some authors, that a turnpike may be con- verted into a railway without the payment of additional damages to the land-owner ;; but is rather a direct authority for the proposition, that where a turnpike is con- demned for a railway the land-owner is entitle^ to recover such damages as he actually sustains from the change of SEC. 242.] ABANDONMENT, EFFECT OF : WHAT IS. 893 the use. Where the entry in the first instance was lawful, upon an abandonment of the route the company may remove all fixtures placed by it upon the land ; ^ but if the company entered without right, all the. fixtures placed by it upon the land become a part of the soil and belong to the owner of the land ; and if the company sub- sequently takes proceedings to obtain the land, upon assessment of the damages the owner of the land is entitled to have ,the value of the , track and other fixtures assessed to him as a part of the damages.^ A railway corporation, having authority to condemn lands for its roadway, proceeded to exercise the right and condemned the plain- tiffs land, but without constructing its road conferred its rights upon another corporation. The court held that although the transfer was not expressly authorized by statute, yet there was no abandonment of the land, and that, as the plaintiff's interest was in no way af- fected by the transfer, he could not be heard to complain.^ A rail- way company may discontinue proceedings instituted by them pursuant to the act delegating the power to acquire title to lands, at any time before the title is acquired and the rights resulting therefrom have become vested in the property-holder.* But the corporation instituting such proceedings becomes answerable to the owner for all damages occasioned by them.^ After the report of the commissioners, or viewers is filed and con- firmed, the rights of the parties are determined, subject only to the right of review as to the amount of appraisal, and the company can- not avoid the payment of the damages.* It is not ijecessary, in order 1 Wager ». Cleveland, &o. R. Co., 22 treat for them. They afterward abandoned Ohio St. 556. part of their undertaking, including the 2 Matter of Long Island R. Co., 6 land comprised in some of the notices, but Thomp. & C. (N. Y.) 298; Graham v. took the rest and paid the purchase-money Connersville, &c. R. Co., 36 Ind. 463. into court, the estate in question being the 8 CroUey v. Minneapolis, &c. R. Co., subject of a testamentary settlement. 30 Minn. U\. . Before the abandonment certain costs, * Matter of Com'rs of Washington charges, and expenses had been incurred Park 56 IST. Y. 14i. by the tenant for life under the settlement, s Leissee v. St. Louis, &c. R. Co., 2 and certain other costs were subsequently Mo. App. 105 ; affirrfied 72 Mo. 561 ; 6 incuiTed in an unsuccessful attempt to ' Am. & Eng. R. Cas. 611. In this case it obtain compensation for not going on with was held to be error, however, to allow the notice to treat in respect to the aban- two persons not partners to sue jointly to doned portions. It was Held, on a petition recover counsel's fees- and other damages, by the tenant for life for investment of it-appearing that in resisting the proceed- the fund in court; that these costs, charges, ing they acted severally and employed and expenses rfaight properly be paid out different counsel. A railway company, of the fund before investment. , In re having power to take compnlsorily certain Strathmore Estates, L. R. 13 Eq. 338. portions of an estate, served notices to 6 Matter of Rhinebeck, &c. E. Co., 894 EMINENT DOMAIN. [CHAP. XIV. to conclude the corporation, that the title to the land should have become vested in it under the proceedings. It is sufficient if tlie light to acquire it on payment of the award is fixed, for then the duty of the corporation to pay the award is absolute.^ It should be observed that so long as the extent of the corporate work and its execution rest in the power of the corporation, so that they may discontinue it, the owners of the ground are not bound to desist from expending money on lands proposed to be taken ; and they are entitled to be paid for the property when finally taken, at its value at the time of the commissioners' report, including improve- ments so made meantime.^ Sec. 243. Preliminary Survey. — The constitutional provision against the taking of private property without compensation does not prevent the legislature from authorizing' an exclusive occupation of land for temporary purposes, as an incipient proceeding to the acquisition of the title thereto or of an easement therein, without compensation ; and an entry upon lands under authority in its charter or in the general law, to locate or survey its route is not a taking of land within the meaning of the Constitution.^ But the right must be exercised reasonably, and with reasonable diligence ; and if the com- pany enters, locates its line, and takes exclusive possession of the land under its survey, and neglects for an unreasonable time to per- fect its proceedings to take the laiid, the owner may maintain trespass to recover damages for the oontinuande of the occupation. For the mere entry to locate and survey its route, however, and to ascertain the feasibility of a location there, which is not followed by an occupa- tion of the land, trespass will not lie, and unless the statute provides therefor, no damages are recoverable.* It has been held that even 67 N. y. 242 ; Harding v. Metropolitan Quimby, 54 N. H. 596 ; Merritt v. Novth- Ry. Co., L. R. 7 Ch. 164 ; East London ern R. Co., 12 Barb. (N. Y.) 608. The Union v. Metropolitan Ry. Co., L. R. 4 mere temporary blocking of a street by a Exoh. 409. city in constructing u tunnel by legisla- 1 Matter of Rliinebeok, &o. R. Co., 67 tive' authority is not a taking of property N. Y. 242 ; Stone v. Commercial Ry. Co. , which confers any right to compensation 4 Mylne & C. 122 ; Walker o. Eastern upon owners of property abutting on the Counties Ry. Co., 6 Hare, 594. obstructed street. Transportation Co. v, 2 Matter of Wall Street; 17 Barb. (N. Chicago, 99 U. S. 686. See, however, Y.) 617. Sabin v. Vt. Central R. Co., 25 Vt. 368. » Chambers v. Cincinnati, &o. R. Co., * Bonaparte v. Camden, &c. R. Co., 1 69 Ga. 820 ; 10 Am. & Eng. R. Cas. 378 ; Baldw. (U. S.) 205 ; Polly v. Saratoga, Nichols V. Somerset, &o. R. Co., 48 Me. &o. R. Co., 9 Barb. (N. Y.) 449; Cush- 857 ;, Cushman v. Smith, 84 Me. 247 ; man v. Smith, 84 Mc 247 ; Fox v. West- Walther v. Warner, 25 Mo. 289 j Orr v. ern Pacific R. Co., 31 Cal. 488j Bloodgood SEC. 244.] BIGHT TO TAKE MATERIALS PROM, ETC. 895 where a company has duly condemned a right of way, and entered thereon, hut has not actually occupied any portion of the land, or dis- turbed the owner's fences or possession, it ,had not made such aa appropriation of the land as to be guilty of a tort, or liable to pay the award.^ Indeed, there are some cases which maintain that the occupation of lands by a railway company pending an appeal frofn the assessment of damages is not a taking of private property for public use without compensation, because in such case ample pro- vision is made for compensation.^ Sec. 244. Right to take Materials from adjoining /Laads. ■'^ Where the charter gives to a railway company the right to enter upon and take all such lands as may be indispensable to the completion of the road, there seems to bp no 'question but that the company may takematerials, as gravel, stones, etc., from adjoining lands ininvituni; and the damages therefor need not be assessed until after the ma- terials are taken.^ In such cases, the payment of compensation is held to be a condition subsequent ; and if provision for compensa^ tion is made, the requirements of the Constitution are met.* But where the charter or general law restricts the company to a certain amount of land, — as one hundred oriwo hundred feet, or to so much as is necessary for their use, — and at the same time provides that they may also take for certain purposes earth, stones, gravel, etc., " from the land so taken," the company has no authority to take materials i>. Mohawk, &c. K. Co., 14 Wend. (N. Y.) 485 ; 37 Aiu. Dee. 277. But a voluntary 51 ; 18 Wend. 9 ; 31 Am. Deo. 313 ; Lyon grant Of a light of way over his land by a V. Green Bay, &c. H. Co,, 42 Wis, 538. land-OWner confers no right upon the 1 Dimmick v. Council Bluffs, &o, E. . company to take sand or other materials Co., 58 Iowa, 637. from adjoining lands without compensate * Peterson u. Foreby, 30 Iowa, 827. ing the owner, Vermilya v. Chicago, &c. But a statute permitting a court or judge R. Co., 66 Iowa, 606 ; 23 Am. & Eng. R. to make an order in his discretion, pend- Cas. 108. Land appropriated under an ing proceedings to determine whether or implied right derived from their charter not -the land shall be condemned, allowing and the provisions of a general railroad the company to enter into possession and, law, and used as a place of deposit for use the land without providing compen- stone and earth, is a proper subject for sation for the use and waste committed compensation, although lying beyond the if the proceedings shall finally fail, is held legal boundaries of the roadway, if neces- to be unconstitutional and void. Danes sary to the constniction of the road. East V. San Lorenzo E. Co., 47 Gal. 517 i Call- Pennsylvania R. Co. v. Sohollenberger, 54 fomia Pacific E. Co. v. Central Pacific R. Penn. St. 144. Co., 47 Cal. 528. « Bloodgood v. Mohawk, &c. R.Co., 14 « Vermont Qentral E. Co. v. Baxter, Wend. (N. Y.) 51 j 31 Am, Dec, 313 ; 22 Vt, 365 ; Lesher v. Wabash Nav. Co,,' Bradshaw v. Rogers, 20 Johns. (N. Y.) 14 HI, 85 ; Bliss v. Hosmer, 15 Ohio, 44 ; ?44 ; Jerome v, Ross, 7 Johns. Ch. (N, Y.) Wheelock v. Pratt, 4 Wend. (N. Y.) 647 ; 343 ; Jerome ». Ross, 4 Wend. (N. Y.) Lyon V. .Jerome, 15 Wend. 569 ; 26 Wend. 65Q, 896 EMINENT DOMAIN. [CHAP. XIV. from lands outside of those taken.^ Indeed, in all cases, in order to determine whether materials may be taken from outside lands, the charter or general law must be regarded, as the authority to do so depends entirely upon the circumstance whether it is or is not conferred thereby, as no such right exists at common law, however great the necessity therefor may be; nor has the company authority to take lands to supply 'materials for the re- pairs of its road.^ It has, however, the right, whether fexpressly given or not, to take materials from one part of its road to use upon another part of it ; * and so, too, it has the right to cut the trees growing thereon, whether they are for fruit, shade, or orna- ment ; and this right is a continuing one, and may be exercised at any time, and the company is the sole judge of the necessity df exercising it.* All timber, minerals, and other materials on the land condemned which are not needed in the construction of the road are the property of the owner of the fee. The company acquires no interest in the land except the right to use it for a way, and to take from it such materials as are needed in the construction of its road ; all other in- terest is retained by the original owuer.^ 1 Parsons v. Howe, 41 Me. 218. Eng, Ency. Law, p. 532. Thus, the company ' New York Central R. Co. v. Gunni- has no right as against the land-owner to son, 1 Hun (N. Y.), 496. give away or sell hay cut by its servants ' Chapin v. Sullivan R. Co., 29 N. H. within the limits of its location. Bailey 561. V. Sweeney, '64 TS. H. 296 ; 30 Am. & » Brainard v. Clark, 10 Gush. (Mass.) Eng. R. Cas. 328. 6 ; Preston v. Duhuque, &c. R. Co., 11 A railway company which has been Iowa, 15. The use of such materials is condemned to pay for land, the owner not limited to that paii of the road imme- reserving the minerals, ia not liable to diately adjacent to the land from which the land-owner by reason of his inability they were taken ; they may be used on any to work a mine which he has discovered part of the road. Preston v. Dubuque,, under the railway. - The conveyance of the &c. R. Co., 11 Iowa, 15; Henry D.Dubuque, surface of the land gives to the grantee an &c. R. Co., 2 Iowa, 288 ; Taylor v. New implied right of support, sufficient for the York, &o. R. Co., 38 N. i. L. 28. object contemplated, from the soil of the * Woodruff V. Neal, 28 Conn. 165 ; grantor adjacent as well as subjacent. Smith V. Rome, 19 Ga. 89 ; Dubuque v. Caledonian Ry. Co. v. Spiot, 2 Macq. H. Benson, 23 Iowa, 248 ; Hollingsworth v. L. Cas. 449; Midland Ry. Co. v. Checkly, Des Moines, &o. R. Co. 63 Iowa, 443 ; L. R. 4 Eq. Cas. 19. The measure of West Covington ». Freking,, 8 Bush (Ky.), damages in a case where land in a coal 121 ; Blake v. Rich, 34 N. H. 282 ; Win- mine has been taken for an underground ter V. Peterson, 24 N. J. L. 524 ; Boiling railroad, is the injury done to the tract, as V. Mayor of Petersburg, 3 Rand. (Va.) a whole, or the difference between its value 563; Barclay „. Howell, 6 Pet. (U.S.) at the time of the entry, and its value after 498. See also as to minerals, Errington the completion of the railroad. Brown v. V. Metropolitan, &c. Ry. Co., 19 Ch. Div. Corey, 43 Pehn, St. 495.- 559 ; 6 Am. & Eng. R. Cas. 562 ; 6 Am. & SEC. 245.] ESTATE TAKEN BY RAILWAY COMPANIES, ETC. 897 Sec. ,245. Estate taken by Railway Comp2Uiies under Proceedings in iuvitum ; Uses of ; Remedy of Land-ovrner for -wrongful Use. — The State^may take, or authorize the taking, of the fee of laud, or a mere easement at its discretion ;^ and the question as to whether it authorized the taking of the fee or only an easement is purely one of construction for the courts,^ to be determined in view of the language used in the act giving the authority tO'take it, and of the purposes for which it was taken. Where the State itself takes land , ary right could in such case be set up, the land-owner being only entitled to recover compensation for the additioTMl servitude to which his land is subjected. And the same rule' has been held where a railroad company, having duly acquired land for its right of way, fails to complete its road within the time specified by the- charter. , In such a case it is held that it is compe- tent for the legislature to authorize an- other company to appropriate the right of ' way and build the road, and the land-own- ers will be entitled to no additional com- pensation. Noll V. Dubuque, &c. K. Co., 82 lovfa, 66. And the same is also true where all the property of the company is sold, together with its franchises, at a judicial sale ; the purchaser may operate the road without makijg any further com- pensation to the land-owners for the right of way. Junction R. Co. v. Ruggles, 7 Ohio St. 1 ; Hatch v. Cincinnati, &e. B. Co., 18 Ohio St. 92. As to the precise interest acquired by a railroad company where, it condemns a right of way over lands, there is some discrepancy among the authorities, but this discrepancy is traceable to the difference in the provisions of the statutes under which the lands were taken, or to the general policy adopted in the different States relative to such grants where the statute is not specific. As a rule the company acquires no greater estate than it is necessary for it to have to enable it properly to discharge its duties to the pub" lie, and the land-owner retains all rights ex- cept those which would necessarily con- flict with the exercise of the franchises of the company. Kansas Cent. R. Co. v. Allen, 22 Kan. 285 ; Chapin v. Sullivan R. Co., 39 N. H. 564 ; Henry ». Dubuque, R. Co., 2 Iowa, 288 | Aldrich v. Drury, 8 R. I. 554. ' Prather i'. Western Union Tel. Co., 89 lud. 501 ; 14 Am. & Eng. R. Cas. 1 ; State V. Evans, 3 111. 208 ; Challissi v. Atchison, &c. B. Co., 16 Kan., 117; Ding- ley !'. Boston, 100 Mass. 544. 2 Washington Cemetery v. Coney Is- land, &c. R. Co., 68 N: Y. 591 ; State V. Rives, 5 Ired. (N. C. ) 297 ; Quimby v. Vt. Central R. Co., 23 N. Y. 387 ; Heard V. Brooklyn,, 60 N. Y. 242. Generally, however, the charters of railroad companies authorize them to acquire' an easement of' , right of way merely in the lands through which their road passes ; but it is an ease- ment in perpetuity if the corporation coii- tiriues to exist, or use it for railway or kindred purposes. Western Pennsylvania R. Co. V. Johnston, 59 Penn. St. 290 ; State V. Brown, 27 N. J. L. 13 ; Alabama,. &o. R. Co. V. Burkett, 42 Ala. 83 ; .Eaton V. Boston, &c. B. Co., 51 N. H. 504; Heard .v. Brooklyn, 66 N. Y. 242 ; Blake 0. Rich, 34 N. H. 282. It cannot be made use of for any purposes, of a dif- ferent charactei; , from those for which it was originally taken, — Pittsburgh, &c. R. Co. V. Bruce, 102 Penn. St. 23 ; 10 Am. & Eng.'B. Cas. 1, — or the land reverts to the original owner, and he may bring a writ qf entry to enforce his rights. Pro- . prietors, &c. v. Nashua, &c. R. Co., 104 llass. 1. And this reversionary interest is always regarded in assessing damages for the original taking. Alabama, &c. R. Co. V. Burkett, 42 Ala. 83. What is such a different use as to entitle the land-owner to set up this reversionary interest is a ques- tion of difficulty. It may be asserted where an attempt is made to employ land^ taken for railroad purposes for private manufacturing enterprises. Proprietors of Locks V. Nashua, &c. R. Co., 104 Mass. 1. In Hatch !>. Cincinnati, &c. R. Co., 18 Ohio St. 92, it was held that no reversion- 898 EMINENT DOMAIN. [CSAP. XIV. fop its public works, whether by purchase or by the power of emi- nent domain, it is treated as having taken the fee, and the land does not revert to the former owners on cessation of the use for which it was taken.^ Thus, where land was taken by a State for the construc- tion of a canal, it was held that upon payment of the damages assessed, the title became absolute in the State, and did not revert to the origi- nal owner upon a cesser of the use for that purpose, or upon a change being made in the course of the canal,^ and the State may convey the land at pleasure.' So also, in authorizing the taking of land for public purposes, either by individuals or corporations, it may determine the nature and extent of the estate to be taken,* or it may leave it discretionary with the corporation whether to take an easement or, the fee ;^ and the question as to the character of the estate authorized to be taken is to be determined more in reference to the nature of the use to which the land is to be de- voted than from the use or omission of technical terms ; and either the presence or absence of the words " in fee ■simple " is not deci- sive 6f the character of the estate,* although the language of the act has an important bearing upon the Ifegislative intent in this respect. Thus, in a New York case,^ the city was authorized by the legislature to take lands for the purposes of a public park, 1 Eexford v. K»ight, 11 N. Y. 808; Penn. St. 156 ; Nelson v. Fleming, 66 People V. Michigan Southern R. Co., 3 Md. 31 ; Mason v. Lake Erie, &c. E. Co., Mioh. i96. But in appropriating land for } Fed. Eep. 712. ordinary highways, only an easement of ^ Charlestbn, &e. E. Co. v. Blake, 12 passage is usually condemned, the fee Rich. {S. C.) 634. remaining in the Original owner. » Norton v. London, &c. Ey. Co., 13 2 Haldeman v. Pennsylvania R. Co., 50 Ch, Div. 268 ; Watson v. N. Y. Central Penn. St. 425 ; Brinkerhoff w. Weraple, 1 R. Co., 8 N. Y. 159 ; New Orleans, &o. Wend. (N. Y. ) 470. See also Heyward E. Co. v. Gay, 31 La. An. 430 ; Gardner V. Mayor, 11 N. Y. 314. v. Brookline, 127 Mass. 408 ; Re'xford ». » People V. Michigan Southern E. Co., Knight, 11 N. Y. 308 ; Holt v. Somer- 3 Mich. 490. viUe, 127 Mass. 3S8 ; Malone v. Toledo, * Ealeigh, &c. B. Co. v. Davis, 2 Dev. 84 Ohio St. 541 ; Dingley v. Boston, 100 & B. (N. 0.) 451 ; Water Works Co. v. Mass. 544 : Hooker v. tJtiea, &c. Tum- Burkhart, 41 Ind. 364 ; Malone v. Toledo, pike Co., 12 Wend. (N. Y.) 371 ; Bostock 28 Ohio St. 643 ; 34 Ohio St. 541 ; Brook- v. North Staffordshire Ry. Co., 4 El. & B. lyn Park Com'rs v. Armstrong, 45 N. Y. 798 ; People v. White, 11 Barb. (N. Y.) 234 ; Eexford v. Knight, 11 N. Y. 308 ; 656. A " right of way " in lands in its Hayward v. New York, 7 N. Y. 314 ; De legal sense, in reference to a railway is a Taraigne v. Fox, 2 Blatchf. (IT. S.) 95 ; mere easement in the lands of others ob- Dingleyu. Boston, 100 Mass. 544 ; Heard tained by lawful condemnation to publie V. Brooklyn, 60 N. Y. 242 ; Chase v. use, or by purchase. Williams v. Western Sutton Mfg. Co., 4 Gush. (Mass.) 152. Union E Co., 50 Wis. 71; Kansas Central Cottan i>. Boom Co., 22 Minn. ■872 ; Eob- E. Co. v. Allen, 22 Kan. 285. inson v. Western Penn. R. Co., 72 Penn. ' Brooklyn Park Com'rs v. Armstrong, St. 316 ; Wyoming Coal Co. v. Price, 81 46 N. Y. 234. SEC. 245.J ESTATE -TAKEN BY RAILWAY COMPAKIES, ETC. 899 and the act provided that upon payment to the owners of the value of the lands, "they shall vest forever in the city of Brook- lyn," and it was held that the city took a fee in the lands, and might sell such parts thereof as were not needed for the purposes of the park. So wTiere, for the purpose of enabling a city to abate a nuisance, and for the preservation of the public health, the legislature authorized the city to " purchase ot otherwise take the lands," it was held that the fee of lands taken under the act vested in the city.^ But it will not be presumed that the legis- lature intended that a greater estate should be taken than is necessary for the purposes for which the power is conferred. Thus, where a city was authorized to take lands for the purposes of an avenue, and the statute provided for the assessment and payment of the value of the lands taken, it was held that the fee was not taken, because not necessary for the purposes for which the lands were taken.^ But where the fee is taken, no right of reversion exists in the original owner when the use for which it was taken ceases.^ As to railroad companie-s, it is generally held in this country that to lands taken for their use in the construction of their railroads they do not, in the absence of an express provision to that effect in their charter, take the fee, but only an easement 1 Dingley v. Boston, 100 Mass. 544. Co., 13 Hun (N. Y.), 643. In Minnesota, So, where a city was authorized to pur- under the general railroad law of 1857, chase or, take land for. a public park, it " an ahsolute estate in fee simple " was was held that it might purchase the fee. conferred. Scott v. St. Paul, &c. K. Co., Holt .V. Somerville, 127 Mass. 408. The 21 Minn. 322, and such statutes are held fee of private property may be taken for to be constitutional even though the Con- a public market when the statute au- stitution only confers authority to grant a thorizes it, and the mtiuicipaUty may " right of way," such words being regarded afterwards sell when the use ceases. Hey- as merely relating to the purpose for which, ward V. Mayer, 11 N. Y. 314. rather than, to the estate in, the lands 2 Railway Co. v. Davis, 2 Dev. & B. taken. Challis v. Atchison, &c. R. Co., (N. C.) 467 ; Washington OemeWy v. 16 Kan. 117. In Kansas, under the stat- Prospeot Park, &c. R. Co., 7 Hun (N. -Y.), ute of 1864, an absolute fee was conferred. 655, affirmed 68 N. Y. 591. Land can Atchison, &c. R, Co. ». Allen, 16»Kan. only be taken for the purpose or use to 117. But under the present statute, only which it is sought to he appropriated, an easement, and as held by the courts, a Oregon R. & Nav. Co. v. Oregon Eeal limited easement, is conferred. Kansas Estate Co., irf Oreg. 444. Central R. Co. ». Allen, 22 Kan. 285 ; 31 * Water Works Co. ■». Burkhart, 41 Am. Rep. 190. The legislature is the Ind. 364; Pern., &c. Canal Co. ii, Billings, exclusive judge as to the degree and qual- 94 Penn. St. 40 ; Mason v. Lake Erie, &c. ity of the interest which is proper to he R. Co., 1 Fed. Rep. 712 ; Haldeman v. taken, and if it confers an estate in fee Pennsylvania R. Co., 50 Penn. St. 425 ; it must be estimated that such an interest Wyoming Coal, &c. Co. v. Price, 81 Penn. was necessary to answer the public use. St. 156 ; Robinson v. Western Penn. R. Challis v. Atchison, &c. R. Co., 16 Kan. Co., 72 id. 316 ; Sweet v. Buffalo, &c. R. 117 j 6 Am, & Eng, Ency, Law, 600. 900 EMINENT DOMAIN. [CHAP. XIV, therein, the fee remaining in the owner and reverting to him when the' use thereof for such purposes ceases/ and its interest in the 1 Western Penn. E. B. Co. v. Johnston, 59 Penn. St. 290 ; Troy & Boston R. E. Co. li. Potter, 42 Vt. 265 ; Alabama, &c. R. R. Co. V. Burkett, 42 Ala. 83 ; Moms V. Schallsville, &c. Turnpike Co., 6 Bush (Ky.), 671; Proprietors of Loeks, &o. v. Nashua & Lowell R. E. Co., 104 Mass. 1, 6 Am. Rep. 181 ; Beach v. Miller, 51 111. 206 ; Eaton v. Boston, Conco.rd & Mon- treal R. R. Co., 51 N. H. 504 ; Albany, &c. E. R. Co. V. Brownell, 24 N. Y. 315 ; Taylor v. ,New York, &i?. E. R. Co., 39 N. J. Eq. 28 ; Barlow v. McKinley, 24 Iowa, 69 ; Heard v. Brooklyn, 60 N. Y. 242 ; State v. Brown, 27 N. J. L. 13. In Hill V. Western Vermont R. R. Co., 32 Vt. 68, it was held that the company had no such interest in the land as could be levied upon. Quimby v. Vermont Cen- tral E.R. Co., 23 Vt. 387; Kellogg d. Malm, 50 Mo. 496. In Bkke v. Rich, 34 N. H. 285; Fowler, J., says : " Does the railroad corporation acquire any higher, more extensive, and more exclusive tight ?" (than the public and the public authorities gain by the laying out of such lands as a public highway.) "A careful examination ef the various statutes author- izing the ,taking of land? for railroads, and a comparison of the language with that of those statutes providing for the taking of land for highways, satisfies us it does not ; and we see nothing in the use to which the land is appropriated, in the one case and the other, requiring the same phraseology to be differently construed in the two cases. Ky the theory as well as the letter of the law, the taking in both cases is for the public use, and that use is no more inconsistent with the continuance of the fee in the original owner in the case of a railroad than in that of a highway." But in Railway Co. v. Davis, 2 D. & B. (N. C. ) 467, EuFFiN, C. J., says : "The doctrine of the common law is, that the public has only an easement in the land over which a road passes, and that the right of soil is undisturbed thereby. The reason is, that ordinarily the interest of the public re- quires no more. Every beneficial use is included in the easement, ifi respect at least to such highways as existed at the time the principle was adopted, and to which it liad reference!. But if the use requisite to the public be such an one as requires the whole thing, the same prin- ciple which gives to the public the right to any use gives the right to the entire use, upon paying adequate compensation for the whole. It is for the legislature to judge in cases in which it 'nay be for the public interest to have the use of private property, whether in fact the public good requires the property, and to what extent. From the great cost of this road [a rail- way], from its nature and supposed util- ity, it seems to be contemplated to preserve it perpetually, or for a great and indefinite period. All persons are excluded from going' on it, unless in the vehicles pro- vided by the public or its agents ; and to enforce that provision and adequately pro- tect the erections from injuries, it mayjie requisite to divest the property out of in- dividuals." Giesy v. Cincinnati, W. &Z. R. R. Co., 4 Ohio St. 308. In NicoU v. The New York & Erie R. E. Co., 12 N, Y. 128, it was objected that because by the act of incorporation there was given to the defendant only a term of existence of fifty years, therefore the grant of land in ques- tion, which was a piece six rods in width across the grantor's farm for the site of the defendants' railway,, should be deemed to have conveyed an estate for years, not in fee. But the court said that the unsound- ness of that position was easily shown ; that it was never yet held that a grant'in fee in express terms could be restricted by the fact that the grantee had but a limited term of existence. And " it is erroneous to say that an estate in fee cannot be fully enjoyed by a natural person, or by a cor- poration of limited duration. It is an en- joyment of the fee to possess it, and to have the full control of it, including the power of alienation by which its full yalue may at once be realized." It is well settled that corporations, though limited in their duration, may purchase and hold a fee, and they may sell such real estate whenever they shall find it no longer necessary or convenient. 2 Preston on Estates, 60. Kent says : " Corporations SEC. 245.] ESTATE TAKEN BY RAILWAY COMPANIES, ETC. 901 land is withdrawn.^ But theJand being taken for a, specific public use, so long as it is devoted to that use, there is no abandonment, have a fee-simple for the purpose of aliena- tion, but they have only a determinable fee for the purpose of enjoyment. On the dissolution of the corporation, the, re- verter is to 4he original grantor or his heirs ; but the grantor will be excluded by the alienation in fee, and in that way the corporation may defeat the possibility of a reverter. 2 Kent, 282. Large sums of money are accordiiigly expended by railroad ^companies in erecting extensive station houses and depots, and by banking corporations in erecting banking houses, because, holding the land in fee, they may be able to reimburse themselves for the outlay by selling the fee before the ter- mination of their corporate existence." But the right of a railway company to the exclusive possession of the land taken for the purposes of their road differs very es- sentially from that of the public in the land taken for a common highway. The railjtay company must, from the very na- ture of their operations, in order to the security of their passengers, workmen, and the enjoyment of the rijad, have the right at all times to the exclusive occu- pancy of the Jand taken, and to exclude all concurrent occupancy by the former owners in any mode and for any purpose. Jackson «. R. & B R. R. Co., 25 Vt. 150 ; Conn. & Pass. Rivers R.R. Co. v. Hol- ton, 32 Vt. 47. In Hazen v. Boston & M. R. E., 2 Gray, 580, Thomas, J., says : "The right acquired by the corporation [a railway company], though technically an easement, yet requires^ for its enjoyment a use ot the land permanent in its na- ture, and practically exclusive.'' Un- der the Pennsylvania general railroad act of 1849, — conferring the right to sur- vey and locate routes for railroads, and to enter, &c., and "occupy" all land on which its railroad, &c., may be located, first making ample compensation to the ownei of such land, — a railroad whose charter is founded upon the act has an easement merely upon the land appropri- ated, a right of way or passage, with such an occupancy as is necessary to give this right its effect ; and this interest is not the subject of a lien or a sale under exe- cution. Western Pennsylvania E. R. Co. 0. Johnston, 59 Penn. St. 290. There is nothing to prevent a railroad company, having title to the use and occupancy of land under a lease, from laying down rails upon it, using them, etc., if not forbidden in the lease, or if waste be not committed by such acts. • But an appropriation of the property for the uses of a railroad, un- der the power granted to take it for such a purpose, is essentially different from such a mere use during the term of a lease. In the latter case no title is acquired to the easement, and the rails must come up be- fore the expiration of the lease ; but in the former a perpetual, easement or right of , way is acquired. In one case, the rent is all the compensation which the landlord can demand; in the other, the' owner is entitled to compensation or security for it before, his right of property can be in- vaded. Heise v. Pennsylvania R. K., Co., 62 Penn. St. 67. At the time a rail- road was laid upon the land of the defend- ant, it was not intended that the road should be merged in the freehold. The road was built solely by the railroad com- pany, under the reasonable belief that it had a free right of way under the license, and by the permission of the owner of the soil. It was held that \xnder the circum- stances of the case, the rails and other materials, which formed a part of the rail- road, were trade .fixtures, and became personalty, liable to the same rules of law that govern other personal property. Northern Central R. R. Go. v. Canton Co., 30 Md. 347. A telegraph company, by a judgment condemning land for its use under the eminent domain act, does not acquire the fee to the land-, or the right to use it for any other purpose than to erect telegraph poles and suspend wires upon them, and maintain and repair the same, and use the structure for telegraph purposes. This of course gives the oom- 1 Hastings v. B. & M. R. E. Co., 38 Iowa, 316. 902 EMINENT DOMAIN. [CHAP. XIV. although the railway has been sold, or by process of law has passed into the hands of another company ; because it is the public use for which the land is taken, and so long as it is used for rail- way purposes it is immaterial what company or what individuals operate it.^ Indeed, railways are leased, consolidated, and sold, quite commonly, and it would be a serious embarrassment to railway enterprises if the use of the roadway was confined exclusively to the company for whose use the lands were originally taken. The title acquired is an easement, but it is an easement in the nature of a fee, and in the assessment of damages no difference is made because of the reversionary right, but damages for the full value of the land are given.^ But the nature of the easement taken is practically exclusive, and in most of the States it is held that the company is entitled to the exclusive possession of the roadway, not only as against the public generally, but also as against the owner ; as the possession of the owner, for any purpose which in any sense is inconsistent with the uses for which the lands were taken wduld be likely to be detrimental to the safety of 'the travelling public. The company being held up to the highest degree of diligence in reference to the safe condition of its road and appliances, must be allowed to exercise its own discretion as to the uses of the roadway ; and common justice, as well as common prudence, requires that they should not be compelled to submit to dictation or interference from pany the right at all times when neoea- taken for their roads is held to be practi- sary to construct or to repair the line, to cally equivalent to the fee, and the value enter upon the strip condemned, doing as of the lands taken is required to be little damage as possible. The company assessed. Robbins a. St. Paul, 22 Minn, cannot cultivate such strip, or take exclu- 286. But this easement is only of a right of siye possession of it, or enjoy it for any way, or passage, with such occupancy as other purpose. The only exclusive right is necessary to give eifect to the right, and of occupancy the company acquires is the it is not th^ subject either of a lien or a ground ooeupied by the poles erected for sale upon execution. Western Penn. E. R. telegraph purposes. Lockie v. Mutual Co. u.. Johnston, 59 Penn. St. 290. But Union Telegraph Co., 103 111. 401. redundant lands taken by it, in fee or 1 Noll V. Dnbuq^ie, &c. E. E. Co., 32 othei-wise, are held to be subject to levy. Iowa, 66 ; Henry v. Dubuque, &c. E. R. Plymouth E. E. Co. v. Calwell, 39 Penn. Co., 2 ii 208 ; Pollard v. Maddox, 28 St. 387. And a canal basin was held in Ala. 321 ; State v. Eives, 5 Ired. (N. C.) the last case not to be a legitimate inci- 297 ; Junction E. E. Co. v. Kuggles, 7 dent of a railway franchise. Town-lots Ohio St. 1. and other property not legitimately in- " Bemis o. Springfield, 122 Mass. 110 ; oident to the franchise, will not pass under Murrayi). County Comm'rs, 12Met. (Mass. ) a mortgage of the railway and its franchises 455. In Minnesota, where railroad corpo- unless specifically named. Shamokin rations, though incorporated for a limited Valley R. R. Co. v. Livermore, 47 Penn, period only, may renew their incorpora- St. 465. tion indefinitely, their easement in Unda SEO. 245.] ESTATE TAKEN BY RAILWAY COMPANIES, ETC. 903 the land-owner in this respect, except in so far as is provided for by the express provision of the statute,^ or as was evidently contemplated when the lands were taken. If a railway is built through the centre of a farm, dividing one part from the other, and all means of access thereto is cut off except by crossing the railway, and the statute makes no provision for farm crossings, and only an easement in the land is taken by the railway comipany, it is hardly reasonable to presume that the damages awarded to the land-owner were intended to compensate him for the land from which he is thus shut ofiF. Su(;h a presumption is unwarrantable and unreasonable, and it is believed that the land-owner has a right to cross the track or to go under it, at reasonable times and in such a manner as not to inter- fere with the operation of the trains upon the railway, when a ne- cessity therfefor exists, to get to and from the other portion of his farm with his crops and for usual farming purposes.^ But where the stat- 1 Jackson v. Eutland & Biu'lington R. R. Co., 25 Vt. 150 ; qordell v. N. Y. Central R. R. Co., 70 Ni Y. 119 ; Junc- tion R. E. Co. V. Philaadphia, 88 Penn. St. 375 ; Troy & Boston E. R. Co. d. Potter, 42 Vt. 465 ; DLsbrow v. Chicago & Northwestern R. R. Co., 70 111. 246 ; Taylor v. N. Y. & Long Island E. E. Co., 38 N. J. L. 28 ; Norton v. London, &c. Ey. Co., L. E. 13 Ch. Div. 268; Curtis ». Eastern R. R., Co., 14 Allen (Mass.), 65. In Tresbrey v. Old Colony R. R. Co., 103 Mass. 1, it was held that in assessing the damages to land for the location of a railway, across it, they must be assessed upon the basis that the land-owner has no right to cross the railroad to get to and from a portion of his estate detached from, his estate by such location, unless the railroad company has secured him such a right under the provisions of the statute. Aldrich v. Driiry, 8 E. I. 554 ; Jefferson- ville, &o. R. R. Co. v. Goldsmith, 47 Ind. 43 ; Hatch i^. Cincinnati, &c. E. E. Co., 18 Ohio St. 92 ; Pittsburgh, Ft. Wayne, , &c. R. R. Co. V. Bingham, 29 id. 364 j Lake Superior, &o. R. E. Co^ v. Grove, 17 Minn. 322 ; Burnett v. N. & C. R. E. Co., 4 Sneed (Tenn.), 528. " In Housatonic R. R. Co. v. Water- bury, 23 Conn. 100, the defendant rail- road crossed the plaintiff's road, dividing it into two parts, and it did not appear that there was any highway or ordinaiy passiyay that enabled him to get from one side of his farm to the other, without crossing said railroad ; and the defendants requested the court to instruct the jury that they had the exclusive right to the use and occupancy of their railroad track, through 'the lands of the plaintiff, and if they were in the ordinary and proper use of the railway, when the cow was killed, and the cow was trespassing upon the track, the defendants were not liable unless they were guilty of gross and wilful neglect, and that the plaintiff, in permit- ting his cow to stray or stapd upon the track, as claimed to have been proved by the plaintiff, was a trespasser against the defendants ; but the court instructed the jury that the defendants held their ease- ment subject to the piaintiff's right to cross and recross, to and from the different sections of his farm separated by the road, provided the sime was reasonably exercised ; that it was their duty to ascer- tain if either party had been guilty of negligence ; if the plaintiff saw his cow on the railroad track, about the time when the train ordinarily passed the road at that place, or if his cattle were turned upon land adjoining the railroad track, and were loitering along near the track, such facts might be evidence of negligence which it was proper for them to consider. It was held that such instructions were correct. Kansas Central R. E. Co. v, 904 EMINENT DOMAIN. [chap. XIV. ute makes provision for farm crossings, and provides a method by which a laud-owner may procure the establishment of one, he has no Allen, 22 Kan. 285 ; 31 Am. Eep. 190. It seems to us that the views advanced in this case hy Hokton, C. J., correctly state the rule in cases where the fee to the land is not taken. He said : " As to the right of the company and the plaintifl' to the strip of land taken and appropriated by the company, — after the strip of land is appropriated, the exclusive use of it vests in the company. No legal right or privilege to cross over or under it is re- served or left to the plaintiff. The com- pany has a perfect right to fence up its road, except at public highways or public cross- ings. In this respect the right of the company differs materially from the rights of the public in land taken for a common highway. The railway company, the de- fendant, must, from the very nature of its operations, for the security of its trains, its passengers, and its employes, and its free use of its road, have the right at all times to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the plaintiff in any mode and for any purpose. From the record it is shown that thei plaintiff testified that the farm was worth twenty dollars per acre before the construction of the railroad across it, and fifteen dollars per acre after its construction. He also testified that there were two drains crossed by the road on his land, one near the easterly entrance to the land, and one near the centre of the land ; that the railroad company had filled up the eastern one, and made a trestle- work over the one near the centre ; that theone near the centre of the faim was deep enough below the railroad trestle- work for stock to pass under the road, by making a little expenditilre, but that the railroad company had not prepared it for such purpose, nor given him any right of way under or over said road ; that the road cut off a part of his farm from Elk creek, and left him without access to it for his stock from the main part of his farm ; that he had crossed the road vrith his teams and hauled a part of his crop across it the present season, and stacked it on the south side of the railroad near the creek, and that the railroad company never gave him any right or privilege to cross the road under or over the road. Other wit- nesses were called as to the damages, who gave their opinions — some of them much above that of the plaintiff, and some of them much below it ; and upon the testi- mony so given, it became a question of importance, as affecting the damages to be assessed, whether, under the appropriation made, as shown by this proceeding, the railway company had the right to the ex- clusive possession of the right of way ap- propriated, and to prevent the owner of the farm from passing under or over the said railroad with his teams or his stock. To decide the question involved, it be- comes necessary to determine the nature and extent of the interest which railroad companies acquire in lands obtained by condemnation proceedings, under the law of 1868 and the amendments of 1870. Section 84, ch. 23, Laws of 1868, provides that the perpetual use of the land con- demned shall vest in the railroad comi)any to which it is appropriated for the use of the railroad. The law of 1864 provided that a title in fee simple might be acquired by railroad companies by virtue of their compulsory powers in taking laud. Under the law of 1868, a mere easement only is granted ; under the old law of 1864, an absolute title' could be secured. Some reason must have existed in the minds of the law-makers for the change which has been made in the statute, and we have no right to extend by judicial construction an easement into an absolute title. There is a wide difference between the two. Under an absolute title in fee simple, the owner of the soil owns from the centre of the earth np to the sky. An easement merely gives to a railroad company a right of way in the land, that is, the right to use the land for its purposes. This in- cludes the right to employ the land taken for the purposes of constructing, maintain- ing and operating a railroad thereon. Under this right the company has the free and perfect use of the surface of the land, so far as necessary for all its purposes, and the right to use as much above and below the surface as may be needed. This SEC. 245<] ESTATE TAEEK BY RAILWAY COMPANIES, ETC. 905 right to cross the track with his teams where no crossing is estab- lished.1 Nor has he any right to the possession of any part of the would include the right to ,tuniiel the land, to cut embankments, to grade and make road-beds, to operate and maintain a railroad with one or more lines of track with proj;er' stations, depots, turn-outs, and all other appurtenanfces of a railroad. 'ihe former proprietor of the soil still retains the fee of the land and his right to the J land for every purpose not incompat- ible With the rights of the railroad eom- paty. Upon the discontinuance or aban- donment of the right of way the entire and exclusive prdfierty and right of enjoyment revest in the proprietor of the soil. After the condemnation and payment of dam- ages, the soil and freehold belong to the owner of the land subject to the easement or incumbrance ; and such land-owner has the right to the use of the condemned prdperty, provided such use does not inter- fere With the use of the property for rail- road purposes. In some cases the right of the owner of the soil would practically not amount to anything, because the pur- poses of a railroad company might require the use of all the land taken to such a de- gree as to forbid the owner from any bene- fit whatever. The paramount right is with the railroad company, and the land- owner can do nothing which will interfere with the safety of its road, appurtenances, trains, passengers, or workmen. 'With these views of the interest which railroad companies acquire in lands obtained by condemnation proceedings, it is evident that the court erred in instructing the jury that 'no legal right or privilege to cross over or under [the railroad] is re- served or left to the plaintiff' (defendant • in error). Under this instruction the land- owner could not erect a suspension bridge over the road, or float in a balloon over it in the air, or even dig coal ot mine min- erals or quarry rock in the bowels of the earth beneath the road-bed. The law is otherwise. After the strip of land was appropriated to the plaintiff in error, the perpetual, use of the land vested in the railway company, its successors and assigns, for railroad purposes. The de- fendant in error had no legal right or privilege to cross over or under the road so as to interfere with theuse of the prop- erty for those purposes. The company had a perfect right to fence up its road except at public highways or public cross- ings. In the'use of the land the railroad company had the paramount right, but the defendant in error had also the right to the land for every purpose not incom- patible with the rights of the road. If the railroad company required exclusive occupancy of the land taken for the use of its railroad, on account of the nature of its operations, or for the security of its trains, its passengers, or its employes, it was entitled to such occupancy. On the other hand, if the company had built its bridges arid trestle-work so high in places as to allow the free passage of stock or teams under the road, and their entry and passage were of no detriment to the rail- road, and in no Way interfered with use of the land for the purposes of the rail- road, the defendant in error, as the land- owner, had the right to enter upon such land and pass under such bridges or trestle- work with his teams and stock, without being a trespasser. He had also the right to widen the drain or passage under the trestle-work, if this in no way interfered with the rights of the railway company. The trial court followed the authority of Jackson v. Eaijroad Company, 25 Vt. 150, but that is an exceptional case. It goes tofl far. It transfers an easement into an absolute title. It announces, as a matter' of law, that a railroad company has the right at all times to the exclusive occu- pancy of the land condemned for its pur- poses, and excludes all concurrent occu- pancy by the land-owner in any mode or for any purposes. We are unwilling to approve that doctrine. It is our opin- ion that it is a question of fact, not of law, whether the necessities of the railroad demand exclusive occupancy for its pur- poses, and what use of the property by the 1 Conn. & Pass. River E. E. Co. v. Holton, 32 Yt. 43. VOL. II. — 7 906 EMINENT DOMAIN. [chap. XIV. roadway, or to the use of it for the purposes of cultivation, nor can he enter thereon to take away the herbage growing thereon, nor use any portion of the roadway for any purpose whatever that in the least de- gree endangers or embarrasses its use for any purpose to which the railway company has appropriated it.^ Thus, in the Vermont case cited in the last note, it was held that the owner could not enter upon the land with teams to remoVe turf therefrom, the effect being to in- crease the' danger of cattle getting upon the roadway, and the dust by the passage of the cars after the sward is removed from the side of the tracks. Besides, the removal of the turf would tend to weaken the embankment, by exposing the soil to the wash of rains, etc. In some of the cases it is said that the owner of the land is entitled to the wood and timber and the stone and minerals upon the land, except in so far as they are necessary to construct or repair the road.^ But the value of this ownership is practically worthless, for the reason that without the assent of the company the owner has no right to cut the timber, or to enter to mine, quarry, or remove the stone, as it is evident that either of these acts would seriously embarrass and owner is a detriment to or interference with the rights of the road. Again, this authority is in conflict with the majority of cases, and if adopted as the law iu this State, now so sparsely settled, and where in many of the frontier counties but a single track is necessary, and public high- ways and public crossings are at great dis- tances from each other, would work severe hardship and injustice. Blake v. Eich, 34 N. H. 282 ; AVash. on Easements, 159, 214 ; Lance's Appeal, 55 Penn. St. 16 ; Evans v. Haefner, 29 Mo. 141 ; Alabama, &o. E. E. Co. V. Burkett, 42 Ala. 83 ; 1 Red. on Railw. 247 ; N. Y. Central E. B. Co. V. Kip, 46 ' N. y. 546 ; Cemetery v. P. P; & C. I. E. R. Co., 68 id. 591. The direction to the jury by the court below, inconsistent with this opinion, being erro- neous, the judgment is reversed and the cause remanded for new trial." The land- owner may lay pipes under the roadway when he can do so without injury to the road. Hasson v. Oil Creek, &c. R. E. Co., 8 Phila. (Penn.) 556. 1 Conn. & Pass. Eiver R. R. Co. v. Holton, 32 Yt. 43. In Leavenworth, Topeka, & S. W. R. E. Co. v. Paul, 28 Kau. 816, the court held that where there was no testimony as to the uses to which the railway company put the land, or the actual extent of its use, and the court in' structs the jury that the fee simple re- mains in the land-owner, subject to the uses of the company for the purposes of the railway, that it was not error for the court to specifically instruct them " that he has the right to every use of it which can be made without interfering with the operation of the road, and to all grass and other vegetation which shall grow thereon." The land-owner can- not depasture his cattle upon the roadway. Jackson v. Rutland, &c. E. Co., 25 Vt. 150 ; Chicago R. Co. v. Patchin, 16 111. 198. The company acquires an estate in severalty and not one in common with the owner. Weston ». Foster, 7 Met. (Mass.) 297. 2 Chapin v. Sullivan R. R. Co., 39 N. H. ■ 564 ; Preston b. Dubuque, &c. R. R. Co., 11 Iowa, 16 ; Baker v. John- son, 2 Hill (K. Y.), 342. The right of the company to use the timber and ma- teiials upon the land condemnSd, in the construction of its road is recognized in all the cases. Taylor v. N. Y. & Long Branch R. R. Co., 38 N. J. L. 28. SEC. 245.J ESTATE TAKEN BY EAILWAY COMPANIES, ETC. 907 endanger the operations* of the company, hesides interfering with its right to use such timber in the repair of the road ; and an entry withr oat its assent for any such purpose would be a trespass for which the company may maintain an action at law,^ and against which a court of equity would undoubtedly enjoin the land-owner, upon a bill brought by the company. But if the company cuts- the timber, ahd does not need it' for the purposes of construction, the owner of the land is entitled to that which is not used in the legitimate purposes of construction ; and if the company should use it for any other pur- pose, or should sell it, it would be liable to the owner for its value ; and if upon demand, it should refuse to permit the owner to take it away, it might be made liable in tro,ver therefor ; ^ and the owner may justify an entry upon the roadway to take it away, but not to cut it. The same rale would also prevail as to other materials.^ The minerals in the land belong to the land-owner, and he iiay take them away if he can do so without endangering the railway.* But he cannot mine under the railway so as to destroy its subjacent support. But in England it is held that when a railway company has compulsorily purchased land with mines and minerals subjacent thereto, and subsequently sells a portion thereof as superfluous land, the purchaser from the railway company does not acquire the right of subjacent support for his surface as against the owner of the mines and minerals, and therefore cannot maintain an action for damages against the mine-owner for so working his mines as to cause injury to the surface and the buildings erected thereon.^ But as to t^e railway itself, the rule would be otherwise, and the mine- owner would be liable for the withdrawal of the subjacent support therefrom so as to injure or endanger it.^ The principle upon which this doctrine rests, as well as the doctrine itself, is illustrated in a recent case ^ in which, in an action by the owner of an aqueduct 1 Connecticut, &e. R. Co. v. Holton, 32 * Preston v. Dubuque E. Co., 11 Iowa, Conn. 43; North Penn. R. Co. v. Reham,49 15 ; Taylor v. N.' Y. & Long Branch R. Penn. St. 101. The proprietors of a rail- Co., 39 N. J. L. 28. road have a right to cut the trees growing s jj, on the strip of land which they have taken * Hasson v. Oil Creek E, Co., 8 Phila. for their road, whether such trees are for (Penn.) 556. shade, ornament, or fruit, and whether 6 Pountney v. Clayton, 49 L. T. Rep. such cutting he at the time of. laying out N. s. 283. their track or afterwards ; and there is no ' Hasson v. Oil Creek R. Co., 8 Phila. burden of proof on such proprietors to (Penn.) 656. show, in their justification, that the trees ' Rockland Water Co. v. Tillson, 75 are cut for the purposes of their road. Me. 170, Brainard !). Clapp, 10 Cush. (Mass.) 6, 90^ BillNENT DOMAIN. [CHAP. XIV. against the land-owner for damages caused By the working Of a lime quarry, it Was held that in regard to an aqueduct as in regard to a way, the owner of the easement may peaceably pursue his right against any obstructions which the land-owner throws in the way of its enjoyment. If the blasting in the qilatry undermines the aque- duct, he may adopt new means of Supporting it in its place ; and if a broader base for the flew support than the width of the original Idcatidfl of the aqueduct has been rendered neCessary by the blasting, it is not a trespass upon the owner of the soil to use his land for that purpose. The aqueduct has the right of support in the land, arid if the blasting under it within the limits of the location by the land-owner deprives it of its former Support, the right still remains, and its enjoyment may be reclaimed with th6 incideflts which necessarily go along with it. It was also held that the defendant was liable for injury done to the aqueduct, whether the Working Cf the quarry Was negligent or not ; but that the defend&ht was not liable in such a Case for injuries Cccasiotifed by the acts Of his grantees, although holding the quatry under hife warranty deed. The materials withiti the limits bf the land taken may be used by the cdmpany in the Construction of the road, but they Cannot be sold by it;i and materials may be taken from one part of the road to be used in the construction of another part of it.^ Of course, where the fee of the land is taken, the entire property in the soil and all that is Upoii or under it belongs to the company. A telegraph litte upon the right is an encroachment upon the exclusive possession of a rail-" Way company, and the damages for the use of the right of way for 1 Aldrioh V. Drury, 8 R. I. 454 ; Tay agents, servants, and persons employed by lor V. ifew York, &o. R. Co., 39 N. J. the company, and to the safe passage 1j. 28. In Brainard v. ^Clapp, 10 Cush. of traTellers on dnd across high*pays aiid (Mass.) 574, Shaw, C. J., says: "The roads connected with it, and which can rdilrofed cortipany are authorized to do all he done within the liitiits of the five rdds, acts within the five rods which hy laW the company have a right under their act constitute their limits, in taking away or of intorporation to do. This is embraced leaving gravel, trees, stones, and other ob- in the idea of taking land forpublio uses." jscts which in their judgment may be See also Chicago, &,c. E. R. Gd., 1*. necessary and proper to the gradilig and Patchin, 16 111. 198. levelling of the i-oad, in adjusting and '^ Chapin v. SuUitan R. R. Co.) 89 adapting it to other roads, bridges, build- N. H. 664. In Baker v. Johnson, 2 Hill idgS, *nd the like, so as to rSnder it most (N. Y.), B42, it was held that where lands conducive to the public uses which the were taken for the purposes of a canal, the railway is intended to accomplish. What- materials taken from one part of the land ever acts, therefore, are requisite to the taken might be used Upon another part safety of passengers on the railway, to the of it; SEC, 245.] ESTATE TAKEN BY RAILWAY COMPANIES, ETC. 909 that purpose go to the railway aompftny a,n(i not to the land-owner.^ And the same rule prevails where any part of the right of way is taken under the powers of eminent domain for any purpose similar to that of a railway. Where the statute gives the power to do sq, lands may be condemned, for tlje supply gf materials, as gravel and stone necessary for the repair of the railway ; but where tJiis power is not expressly given, it must purchase such lands ag are qeeded for this purpose, and ma,y acquire the fee therein^^ and convey a 1 Atlantic Tel. Co. i>. Chicago E. R. Co., 6 Biss. (U. S. C. C.).X§8; Telegraph Co, «. Eieh, 19 Kan, 517 j Southwestern K. E. Co. V. Southern T^. Co., 46 Ga, 48. S* Overmyer v. Williains, l§ Ohio, 26. Land cannot be taken for the supply of stone and gravel to b^ used in the repair of a distant part of the rp^d, without the most Brg^nt necessity therefor, or even in its construction. In N, Y. & Canada E. E. Go. V. Gunnison, 1 Hun (N. Y.), 496, it was held that under the statutes authorizing railroad companies to acquire title to real estate without the owner's eongent, a company cannot take land ^mply for the purpose of removing gravel therefrom, tp be jised in cgnstructing » distant portion of its road, BQAKqMAN, J., said ; "The company needs and will need additional land fo;c side tracks, and Storing oars ; whether the necessity requires the particular lands in controversy, js not so clear. Still, enough is shown, of diffi- culties and obstructions in other neigh- boring localities, to lead to the cpnclusion that no other property is so ayaUable, or could be rendered so useful at so small an expense, as these lands of Gunnison. If so, the selection of proper grounds for these, and other necessary purposes, is very much in the discretion of the mana- gers, if exercised in good faith. But the railroad company claims the right, and indicates an intent to use a portion of the lands, of which it seeks to acquire the title, for the purpose of taking therefrom gravel to "ballast the road for many miles to the south of Crown Poin^. It appears that this land is mostly made up of a fine quality of gravel, suitable for such pur- pose, and that no suitable gravel can be obtained for fifteen miles south of it. One of the objects for which such land is neces- sary to saicl company, is to excavate and carry ayiaj this gravel for ballast. Thp right of eminent domain is harsh in its application to individual rights. It is given fpr the public adyautage, ^nd to accomplish a, public purpose. To accom- plish such purpose, the railroad company is allowed to take private prbperty, upon just compensation. Whatever is essentia and indispensable to the cqnstructfg^, maintenance, or running of the road, is allowed to be taken. What the compaiiy acquires, is not a fee simple to thp lands, — not an absolute right to use them, ir- respective of the title and interests remain- ing in the individual, — but a right pf way, and the right to adapt the soil and land, within its limits, to the ordinary uses and uecessities of such a way. If a cut is required, the soil taken therefrom may bp used for a fill, wherever needed. But it has not been considered lawful, so far as I can discover, tp take land? putsidp ■the limits of its way ; to remove earth, timber, rocks, or materials theiefrom for the building of its rpad, under the right of eminent domain and public necessity. In matter of N. Y. & H, E. R. v. Kip, 46 N. Y. 646. At page 552 of the last case, Allen, J., says : ' The right to takp lands upon Tvjjich to erect a manufactory of cars . . . is not included in thg grant. Neither can lands be taken for a mere subsidiary or extraordinary purpose,' He then indipates many of the purposes con- sidered indispensable, such as justjfy the taking of land in invitum. But he no- where intimites that the soil, below grade, may be taken and carried away for use ii> other localities. Such an act would be in excess of a right of way, d therefore aur thorize, complete posses.sion and control by th:e railroad corporatioij. The occupar tion and use of lands which it is entitled to enjoy is declared to be ' permanent in its nature, and practically exclusive.' JIa?en v. Boston & Maine E. E., 2 Gray (Mass.), 577, 580. The mode of occupa- tion, and the degree of exclusiveness, necessary or proper for the convenient ejcercise of its franchise, are within the abr wlute discretion of the managers of the (Mass.) 512, 622 ; Weston v. Foster, 7 Met. (Maes.) 297 ; Tucker v. Towejr, 9 Pick. (Mass.) 109 ; Harback v. Boston, 10 Cush. (Mass.) 296. The owner pf tlie fee in lajid thus subjected tp a public easement may maintain an action pf tres- pass pr a writ pf entry against any one whose entry or acts upon the premises would support the action, unless )ie can justify under the authority. of tlie party having the easement. Per S^dgwiGK, J., in Commonwealth v. Peters, 2 Mass. 125 ; Perley v. Chandler, 6 id. 464 ; Bobbins v, Borman, 1 Pick. (Mass.) 122 ; Hancock V. Wentworth, 5 Met. (Mass.) 446. The title and right of the plaintiffs in this aotipn are therefore sufficient ,to enable them to maintain their writ of entry. In )vhat manner and to what extent will the rights pf the tenant serve to defeat the ac? tion or modify the judgment ? It is manifest that, if the general issue were pleaded, and nothing more, the title to the freehold being thus alone put in issne, the demandants must prevail. But sup^ pose the defendant corporation should jlis' claim title, and specify the rights and authority under which it held the occupa- tion. This would fn effect be equivalent to a plea pf special non-tenure or special disclaimer, Such a plea, if according to the truth of the case, wpuld be a coin- plete defence to tJie action. But tjie 914 EMINENT DOMAIN. [chap. XIV. taking them, but also to its rights to euter upon them for the con- struction of its road.^ But as this provision is for the benefit of the demandants may falsify that plea, that is, may show that the party impleaded is, nevertheless, tenant of the freehold. Jack- son on Real Actions, 9S, 101 ; Prescott v Hutchinson, 13 Mass. 439 ; Creighton v. Proctor, 12 Gush. (Mass.) 433, 438 ; Dolby I/. Miller, 2 Gray (Mass. ), 135 ; Johnson V. Phillips, 13 id. 198. Whenever, upon issue joined on such a plea, it is made to appear that the tenant in the action has in fact asserted rights in, or done acts upon, the premises which are not justi- fied by the special interest or authority relied on, and which from their character imply a claim of title, or require title to the estate itself for their justification, the plea fails. In this respect, the only difference between a general and a special disclaimer or non-tenure is in the evidence requisite to falsify the plea and establish a dissei- sin. Where there is a right which author- izes the party defendant, for certain pur- poses to disturb the soil or occupy the land, acts done in apparent conformity therewith, or even of an equivocal nature, wiU be referred to that special right ; al- 1 McAulay v. Western Vt. K. E. Co., 33 Vt. 311 J Knapp v. McAulay, 39 Vt. 275 ; Austin v. Rutland, &e. R. R. Co., 45 id. 215 ; Williams, &c. R. R. Co. v. Battle, 66 N. C. 540 ; Smart v. Ports- mouth, &c. R. R. Co., 20 N. H. 233 ; Baltimore, &c. R. R. Co. v. Highland, 48 / Ind. 381 ; Homback v. Cincinnati, &c. R. E. Co., 20 Ohio St. 81 ; Baker v. Chi- cago, &c. R. R. Co., 57 Mo. 265 ; Petti- bone V. La Crosse, &c. R. E. Co., 14 Wis. 443 ; Coe v. N. J. Midland R. R. Co., 32 N. J. Eq. 21 ; Vilas v. Milwaukee, &o. R. R. Co., 15 Wis. 233 ; Pickert v. Ridge- field Park R. R. Co., 25 N. J. Eq. 316 ; St. Joseph, &e. E. R. Co. v. Callendar, 13 Kan. 496 ; Bloodgood v. Mohawk, &c. R. R. Co., 18 Wend. (N. Y.) 9 ; Carli v. Stillwater, &c. R. R. Co., 16 Minn. 260 ; Beekman v. Saratoga, &c. R. R. Co., 3 Paige Ch. (K. Y.) 45; Driver v. West- em Union E. R Co., 32 Wis. 559 ; Clark- son V. Hudson River E. R. Co., 12 N. Y. 804 ; Crowner v. Watertown, &c. R. R. Co., 9 How. Pr. (N. Y.) 457 ; Ballou v. Ballou, 78 N. Y. 325 ; Wheeler v. Roches- ter, &c. R. E. Co., 12 Barb. (N. Y.) 227 ; White II. Nashville, fee. R. R. Co., 7 Heisk. (Tenn.) 518 ; Stacey v. Vt. Cen- tral R. R. Co., 27 Vt. 39 ; Blackshire v. Atchison, &o. R. R. Co., 13 Kan. 514; Schuler v. Northern L. & P.T. R. Co., 3 Whart. (Penn.) 555. A railroad com- pany has no right whatever to enter upon, and use and occupy the land of an individual, for the purpose of constructing its road ; or to take and appropriate the timber thereon, against the consent of the owner, before having ascertained the. com- pensation to which such owner is entitled under the Constitution, and the payment thereof. And no provision of the general ' raih'oad act can be construed as purport- ing to give such right. Blodgett v. Utiea, &c. R. E. Co., 64 Barb. (N. Y.) 580. The Vermont Gen. Stat. ch. 28, § 17, — per- mitting land to be taken for a railroad with no appraisal of the damages before the con- struction of the road, — and § 20, — pro- viding a remedy other than ejectment for such taking, — were construed not to allow remainder-men to maintain ejectment to recover joint possession of land, where a railroad company, owning one undivided moiety thereof in fee, and the life estate of A., in the other moiety, being in exclu- sive possession, duly located their rail- road thereon, and appropriated the whole thereof for the ordinary, necessary, and legitimate purposes of the road, and con- tinued thus to use and possess the same after the termination of said life estate, to the exclusion of the remainder-men, and without the appraisal or payment of land damages under the statute or otherwise, to the remainder-men. Austin v. Rutland R. R. Co., 45 Vt. 215. Until those con- ditions precedent are performed, the legis- lature may authorize an award of damages already made to be vacated, and a new one to be made. Baltimore, &c. R. E. Co. v. Nesbit, 10 How. (U. S.) 395 ; Gowen v. Penobscot E. B. Co., 44 Me. 140 ; Gar rison V. New York, 21 Wall. (U. S.) 196. SEC. 246.] WHEN THE EIGHT OP ENTEY, ETC. 915 land-owner, he may waive it, and permit an entry without the per- formance of this condition ;i and where a railway company, with the though, in the absence of such authority, the demandant would be entitled to re- gard the acts as an assertion of title and a disseisin of himself. It is immaterial how great or how limited may be the special interest or authority set up in justification, except as it affects the degree and kind of proof required to show that it has been exceeded, or that it does not apply to or justify the acts done. In respect to laTids taken by railroad corporations, although the discretion of the directors is unlimited as to the mode and extent of the use or oc- cupation for the purposes for which the cor- poration was created, yet it is definitely limited by those pv/rposes. Any uses of the land confessedly for other purposes, or not apparently for purposes permitted by its charter, are not protected by its authority. For such uses the owner may have his re- dress by any appropriate action. A turn- pike oorporatioii may remove the earth within the limits of its road, for the pur- poses of construction or repair, and may erect permanent buildings for a toll-house, with cellar and well. Tucker u. Tower, 9 Pick. (Mass) 1 09. But it may not even take the herbage for purpcfses not connected with the exercise of its franchise. Adams V. Emerson, 6 Pick. (Mass.) 57. See also Appleton v. Fullerton, 1 Gray (Mass.), 186 ; Codman u. Evans, 1 Allen (Mass.), 433. A similar distinction, founded on the purpose of the use of a highway, was pointed put inStackpole v. Healy, 16 Mass. 33. So also as to railroads, in re- spect of liability to taxation. Worcester V. Western R. R. Co., 4 Met. (Mass.) 564, 569. The rights of any party hav- ing an easement in the lands of another are measured and defined by the purpose and character of that easement. For all purposes consistent with that easement, the right to use the land remains in the owner of the fee. Atkins v. Boardraan, 2 id. 457, 467 ; Phipps v. Johnson, 99 Mass. 26. The principle is the same, however extensive the rights confen-ed by the ease- ment. In the present case, the occupa- tion of the buildings upon the demanded premises for the general purposes of trade and mechanical or manufacturing busi- ness, by lessees having no other connec- tion with the operations or interests of the corporation than as its tenants paying rent, and the conversion of those build- ings by the corporation from their original design into private stores or shops for the purpose of so changing their use, placed them beyond the scope of the corporate purposes and functions. It is such an occupation of the land as; without war- rant from the public authority, involves , an assumption of ownership, and entitles the demandants to treat the corporation as tenant of the freehold by disseisin. Jack- sou on Real Actions, 97 ; Johnson v. Phil- lips, 13 Gray (Mass.), 198 ; Johnson v. Boardinan, 6 Allen (-Mass.), 28. The fact that the corporation has a validx ease- ment, which entitles it to a greater or less use of the land for other purposes, is no impediment to a recovery by the demand- ants in this 'action ; for the judgment will be rendered subject to such valid easement as the tenant actually has. Al- den V. Murdoek, 13 Mass. 256 ; Morgan V. Moore, 3 Gray (Mass.), 319 ; Castle ». Palmer, 6 Allen (Mass. )■, 401. The ease- ment of the railroad corporation is of such a nature that the demandants cannot have judgment and execution that will exclude the corporation from complete possession and control of the premises for all pur- poses pertaining to the exercise of its cor- porate franchises. But they are entitled to a judgment which shall establish their title and rights as owners of the fee, and secure to them proper damages for, the wrongful use of the laud as well as their costs of suit. Prescott v. Hutchinson, 13 Mass. 439 ; Richards v. Randall, 4 Gray (Mass.), 53 ; Qen. Sts., ch. 134, § 14. The assessment of damages or mesne pro- fits will be made with reference to the measure of title established by the suit. As to the land within the limits of the l<>cation, the tenant has made use of it for 1 McAulay w. Western Vermont R. Co., 33 Vt. 311. 9J§ EMINENT DOMAIN. [CHAP, JiW, conseut of the owner of the land, enters upon it and oonstruotg its roa;d, and subsequently sells its toad, or it is sold under a mortgag^ or under judicial orders, the title passes to the^ vendee, and the owner of such land cannot maintain ejectment against the vendee for the portion of his land occupied by such railway. Thus, in a Ne- braska case,^ the plaintiff was one of the original projectors of the 0. & K W. R E., owning more than one flfth part of its capital stock, and was' an active member of its board of directors during the whole life of the corporation, In 1869 the lipe of the road was laid out and established, and the first ten miles graded, passing .over and oc- cupying a tract of land belonging to the plaintiff. No objection was made by him to the pccupation of bis land by the railroad track. In May, 1871, the first twenty-six miles of the railroad, including that part crossing Ms land, was conveyed by the railroad company by deeid of trust, to secure the payment of certain bonds therein described. In 1878 the deed of trust was foreclosed in equity, and the railroad was sold to satisfy the principal and interest due on the bonds. The defendant took its title to the railroad under such sale. Afterward the plaintiff brought ejectment, against the defendant to eject it frogi said land. It was held that the action could not be sustained; Said Cobb, J., " The rights of property, however sacred, and guaranteed by the Constitution and the laws, yet must be held and pnjoyed in relation to the rights of other?. While property in the possession of the owner may be kept and enjoyed by him with little or no respect to the wants or wishes of other people, yet when he once suffers- it to pass from his own $, valuable purpose. It? chai-ter affords no interests best promoted by an amicable justification of thatjise, and no protection adjustment in relation thereto. The com- jigainst the claim of the owner of the fee putation will include six years preceding for the mesne profits, against any disseir the suit, and the time since the date of the sor. The assessor will therefoj'e estimate writ to the time of the return of the as- the damages for all the parcels alike, ac- sesspr's report. Curtis v. Francis,, 9 Cash. ' wrding to the full, clear, annual yalue of (Mass.) 427, 468,. In pursuance of the the land, not including the improvemPflts. agreement upon which the case is broiight Gen. Sts., ch. 134, §§ 16, 16 ; Hatch ii'. up to us, an assessor will be appointecT tp Dwight, 17 Mass. 289, 298. As the pre- estimate the damages accordingly, Judg- cise mode and extent of the prpjeotion of ment for the demandants, subject to all the building upon parcel B. does not ap- rights conferred upon the tenants by their pear, we cannot indicate befprehand corporate charter, and the location of whether any allowance should be made their railroad over a part of the deinand.ed for improvements upon that parcel, or in premises." what mnnner the structure is to be dia- i Omaha, &c. R. Co. v, Redick, 16 posed of. Its situation is such as will Neb. 313 ; 17 Am. ■& Eng. K. Cas. 107. probably lead both parties to find their SEC. 246.] WHEN THE EIGHT OF ENTEY, ETC. 917 possession and coiiirol into that of others, either with or without consideration, the law limits him in the manner of repossessing hitnself of it, and this limitatiofl can only M ttieasured by the facts of eiach case as it arises. One Who is put in possession upon an agrfeemeht for the purchase of lafld cannot be ousted by ejectment before his lawful possession is determined, by demand 'of possession or otherwise. It is also true that under the Constitution and laws of this State the assessment of damages, and payflient or deposit of the aniount is a condition precedent to the vesting of the title, or of any right in the company to construct their road. But these Gon-" ditions are susceptible of being waived, and in these great publid works the shortest period of clear acquiescence, so as fairly to lead the company to infer that the party inteflds to waivfi his claim for ptepayment, \Viil be held to preclude the right to assert the claim in any Such form as to stop the company in the progress of the work, and especially to stop the running of the road after it haa been piit in operation, whereby the public sie^uire iihportaHb inter- .eSts in its continuance. Whatever rights the plaintiff may have against the present plaintiff in error, gioWiHg out of this right of way question, and whether he is estopped in pais to p,ssert any or all of thern, it seems clear to me that he is not entitled to a judg- ment that woiild enable him to sever a line of commerce which, by his assentj if mot through his active agency in part, was constructed over the same property, and has enjoyed free passage over it for at least seven years." ^ Payment where it has been waived before entry being a condition subsequent, the land-owner cannot resume possession of the land, but, according to the English,^ and some very respectable Americail authorities', he retains an equitable lieri upon the land for the pay- ment of Such damages, when the company violates the Oonditions upon which entry without compensation waS permitted, which may be enforced in a cburt of equity,^ or the land-owner may pursue the ' 1 SEDFlfiLD, C. J., In MeAulay v. ages are paid. Lyoett v. Stafford, fe.^ By, Western Vt. E. R. Co., 33 Vt. 311. Co., ante ; MvA an order for a receiver will 2 Earl {"errdrs i(. Stafford, &o. By. Co., be made with a direction to the company L. R. 13 Eq. 524 ; Lytiett v. Stafford, to give him immediate possession. Munna &c. Ey. Co., L. R. 13 Eq. 261 ; Walker v. Isle of Wight Ey. Co., arde> V. Ware, &o. Ry. Co., 1 id. 195 ; Munns » Gillson v. Savannah, &c. R. R. Co., V. Isle of Wight Ey. Co., 8 id. 653. But 7 S. C. 173. Ih Dayton, &c. R. B. Co. the lien will not be enforced by an ifljunc- v. Lawton, 2d Ohio St. 40, a land-owner tion restraining the runhing of Sngine^ -and a railroad cOnipany entered into aft and trains over the road until the dam- agreeflrent that the land-ownei' should 918 EMINENT DOMAIN. [CHAP. XIV. statutory remedy for his compensation ; ^ or, according to some of the cases, where .there is a mutualagreement between the company and the land-owner to waive the assessment of. damages, and the com- pany agrees to pay a specified price for the land, the land-owner may bring an action against it upon the promise to recover the stip- ulated price.2 According to some of the cases, a land-owner's lien cannot exist upon the land taken by the railway company for its track, because of the nature of the works and the public interest in them.* A waiver of prepayment of damages may be express or im- plied, and it will be implied when the company enters and pursues the work of constructing its road under such circumstances as make it his duty to resist the entry if he afterward intends to set up its illegality ; and an owner who, by not insisting on prepayment as a condition precedent to a surrender of the land, and by making no attempt to impede the progress of the road-making, induces the com- pany to expend large sums therein, cannot maintain ejectment on th^ ground of its failure to prepay.* But mere silence and inaction for a few months after being informed that the company are con- structing their track over the land will pot be treated as such an acquiescence as to estop the owner from maintaining ejectment.,^ If the entry is permitted upon the promise of the company to place release to the company - right of way N. H. 233 ; McClinton v. Pittsburgh, &c. through the land, aijd allow them to enter R. R. Co., 66 Penn. St. 404. and eoustnict the road ; and that the ^ pjatt v. Western, &c. R. R. Co., 65 company should pay a specified sum at a N. C. 74. future day, and should, erect certain cattle- ^ Dunn v. No. Missouri R. R. Co., 24 guards and crossings. The company took Mo. 493. i possession and constructed the road before * Provolt v. Chicago, &c, R. R. Co., 57 receiving a deed or making payment of Mo. 256 ; Evans v. Missouri, &o. R. R. the price. It was held, 1. That the land- Co., 64 Mo. 453; Harlow ». Marquette, owner had an equitable lien for the price, &c. R. R. Co. , 41 Mich. 336 ; Attomey- and for damages for non-construction of General v. N. Y. & Long Branch R R. the cattle-guards and crossings ; and might Co., 25 N. J. Eq. 49 ; Pickert «. Ridge- elect between asking a specific perform- field Park R. R. Co., 26 id. 316 ; Hentz ance of his contract and enforcement of v. Long Island E. R. Co., 13 Barb. (N. Y.) his lien. , 2. That the fact' tHat he re- 646 ; Cairo, &c. R. R. Co. v. Turner, 31 tained the legal title was suflScient to put Ark. 494 ; Goodin i). Cincinnati, &o. any subsequent mortgagee or purchaser Canal Co., 18 Ohio, 169 ; Pettibone v. La upon notice of his rights, and to charge Crosse, &c. R. R. Co., 14 "Wis. 443 ; Tay- him with the lien. Knapp v. MoAulay, lor v. Pettijohn, 24 111. 312 ; Lexington, 39 Vt. 275 ; Provolt i). Chicago, &c. E. R. &c. E. E. Co. o. Ormsby, 7 Dana (Ky.), Co., 57 Mo. 256. 276 ; Andrews v. Farmers' Loan & Trust 1 Maxwell v. Bay City Bridge Co., 41 Co., 22 Wis. 288. Mich. 453 ; Western Penn. R. R. Co. o. 6 Walker i). Chicago, &o. R. R. Co., 57' Johnston, 59 Penn. St. 290 ; Harrington Mo. 27fi ; Conger v. Burlington, &o. R. K. V. St. Paul, &o. R. R. Co., 17 Minn. 215 ; Co., 41 Iowa, 419. Smart v. Portsmouth, &o. E. R. Co., 20 SEC. 247.] TEESPASSEE, WHEN. 919 fences and cattle-guards adjoining the land, lie cannot bring eject- ment because it failed to do so, but may have his remedy in an action for specific performance, or he may build them and recover the expense frgm the company.^ Where the entry is made without tendering or paying the land damages, without the assent of the owner, and the latter may main- tain an action to recover possession, and may enjoin the use of his laild until his damages are assessed and tendered j^ and the same rule also prevails where the statute requires that the amount of damages assessed shall be paid, or deposited with the clerk of the court, and an entry is made pending an appe'al from the assessment, - without depositing the money as required.^ Sec. 247. Trespasser, when. — Where a railway company enters upon lands without the assent of the owner, and without having complied with the conditions of the statute, it is a trespasser, and the owner of the land may maintain ejectment against it, to recover possession,* or trespass for the damages ; ^ and the same rule pre- 1 Baker v. Chicago, &c. E. E. Co., 57 Mo. 265. And the same is also the ease where the right of way was relinquished upon the promise of the company to build a depot at a certai;i place. Hubbard v. Kan- sas City, &c. E. E. Co., 63 Mo. 68. Thus, a land-owner for one dollar released to a rail- road company the right of way, etc., through hi? land, and sold them a lot on which to erect a depot. In an action for not erect- ing it, it was held that parol evidence thit its erection was the consideration for the release, was admissible ; and that the measure of damage for ,the breach would be the additional value that would have accrued to plaintiffs land had the depot been erected. But profits of business could not be considered. Watterson «. Alle- gheny Valley K. R.'Co., 74 Penn. St. 208. 2 Cox V. Louisville, &c. R. R. Co., 48 Ind. 178. ' Ring V. Mississippi River Bridge Co., 57 Mo. 496. * P. W. & B. R. R. Co. V. High, 89 Penn. St. 282 ; Robinson v. Pittsburgh R. R. Co., 57 Cal. 417 ; McCliuton v. Pittsburgh, &o. R. R. Co. , 66 Penn. St. 404 ; Chicago, &o. R. R. Co. v. Knox College, 34 111. 195 ; Congler v. Burling- ton, &c. R. R. Co., 41 Iowa, 419 ; Gil- 6 Hooker v. N. Y. & New Haven R. R. Co., 14 Conn. 146 ; Rush v. Mil- waukee, &o. R. R. Co., 54 Wis. 136 ; Jus- tice V. Nesquehoning Valley R. R. Co., 87 Penn. St. 28 ; Evftnsville, &o. R. R. Co. V. Dick, 9 Ilid. 433 ^ Blodgett v. Ctioa, &c. R. R. Co., 64 Barb. {N. Y.) 480 ; Murray o. Fitohburg R. R. Co., 130 Mass. 99; Smart v. Portsmouth, &c. E. E. Co., 20 N. H. 233 ; Buffalo Bayou, &o. R. R. Co. V. Ferris, 26 Tex. 588 ; Drury V. Midland R. R. Co., 127 Mass. 571; Matthews v. St. Paul, &c. R. E. Co., 18 Minn. 434 ; Tinsman v. Belvidere, &c. R.R. Co., 27 N. J. L. 148; South Caro- lina R. R. Co. v. Stetner, 44 Ga. 546 ; Eaton V. Boston, &c. R. R. Co., 51 N. H. 604 ; Memphis, &o. R. R. Co. v. Payne, 37 Miss. 700 ; Robinson v. N. Y. & Erie R.E. Co., 27 Barb. (N. Y.) 512 ; Sher- man V. Milwaukee, &c. E. E. Co., 40 Wis. 645 ; Henry v. Dubuque E. E. Co., 10 Iowa, 540; Hibbs v. Chicago, &o. E. R. Co., 39 Iowa, 340 ; Indiana R. R. Co. V. Boden, 10 Ind. 96 ; Lee v. Pem- broke Iron Co,, 57 Me. 481 ; Cushman v. Smith, 34 Me. 247. .920 IMINENT DOMAIN. [oHAi'. xiv: vails whei'e the company has entered into possession and the pfodeedings instituted to condemn the land prove to be irregular man v. Sheboygan R. U. Co., 40 Wis. 663 ; Lerering v. Philadelphia, &c. B. B. Co., 8 W, & S. (Pehn.) 459 ; St, Joseph, &o. R. E. Co. V. Callendar, 18 Kan. 496 ; Holbert ■!!. St. Louis, &c. B. B. Co., 4S Iowa, 23 ; Smith v. Chicago & Alton B. R. Co., 67 111. 191 ; Harrington v. St. Paul, &o. B. B. Co., 17 Minn. 215 ; Cox v. Loulstille, &o. B. B. Co., 4S Ind. 179 ; *New Orleans v. Seimsr B. Ji. Co., 70 Ala. 227 ; Galveston, Harrisburg, & San An- ^ tonio H. R. Co. ■». Pfeuffei;, 56 1?ex. 66 j Busch V. Milwaukee, Lake 8hor6, & West- ern B. R. Co., 54 Wis. 186 ; Lozier v. N. Y. Central R. B. Co., 42 Barb. (N. Y.) 466 ! Susquehanna & Wyoming Valley B. E. Co. V. Quick, 68 PenA. St. 189 ,' Baker v. Long Island B. B. Co., 1 How. tr. (S. Y.) 214 i Stewart v. Camden, &c. B. B. Co., 38 N. J. L. 115. Where a railroad company had lands condemned for Mght of way, and the daibagds were assessed but not paid, and the owner sued and recovered judgment for the damages, but execution was returned "no property found," but the company entered into possession, constructed its road with the consent of the owner, and then leased it to another company, which was occupying aild using this right of way when the suit Was brought to recover the land, it was' held that the suit could rjot be maintained without notice to quit. Chicago, Burling- toil, & Quitioy B.R . Co. v. Knox College, 34 111. 195. Ejectipent is a proper remedy where land o^ned in fee by an individual, subject to the public easement of a high- way, is appropriated by a railroad com- pany for the use of its road. Loziet i, Ne* Yol-k Central R.B. Co., 42 Barb. (N. Y.) 466. Ejectment will Hot lie to re- cover an undivided moiety' of lands in the possession of a railway company. Thus, a railroad company owning one un- divided moiety of land in fee, and the life estate of A. in the other moiety thereof, being in the exclusive posseasionj duly lo- cated its railroad thereon, and appropri- ated the Whole thereof for the ordinary, necessary, and legitimate purposes of the road, and continued to thus use and pos- sess the same after the termination of said life estate, to the exclusion of the remain- dermen, and Without the appraisal or pay ment of land damages, under the statute or otherwise, to the remaindermen. It was held that, on account of the peculiar and extraordinary character of the subjedt- matter of the case, the remaindermen could not maintain ejectment against said company td recover joint possession of said premises. Austin v. Rutland R, R. Co., 45 Vt. 215. Nor will qjectment lie Where the company entered lawfully un- der proceedings to condemn the land, and deposited the sum assessed and also a bond under the statute, pending an ap- peal by the land-owner from the assess- ment, and where the land-owner pending such appeal has accepted the money, even though the proceedings are reversed on bppeal. St. Paul, Alton, &c. B. B. Co. V. Karnes, 101 111. 402. In an action by the Owner of the fee to recover land Used by a railway company for its road-bed, *here the defendant claimed only a right of possession, the presiding judge charged the jiUi-y that the plaintiff had the title, and they must find for hira the land in dispute, and damages. It was held erro- neous, as the light of title does not neces- sarily carry with it the right of possession j and fot sUoh error a new trial was granted. And no interference with the terms of the deed being alleged or proven, it was held that the plaintiff could not recover pos- session or damages for its detention. Tutt V. Port Boyal, fcc. B. B. Co., 16 S. C. 865. In an action of ^ectment for possession of an undivided interest in a tract of land, it Was held that it was not necessary to al- lege in the complaint that the defendalll: had not Since its entry upon the premises acquired the right to the possession by condemnation for the purposes of its road. This would be a matter of defence. Neither was it necessary to allege that the defend- ant was not the owner of the other undi- vided interest or in possession undet the owner. This would also be a matter of defence. Hennessy v. St. Paul, &c. E. B. Co., 80 Minn. 65. In ejectment for land occupied by the defendant's railroad and de- pot, the defendant in effeqt pleaded that it SEC. 247.] TBESPASSEK, WHEN. 921 and defective ; and^such proceedings are no defence either in eject- ment or trespass.^ had entered ty permission of the plaintiffs, and had paid plaintiffs for the right ol' way over the land, and for the privilege of main? taining a depot ; and that thereupon the plaintiffs had granted to the defendant said right and privilege, The oourt did not find on this issue, but in effect found that the plaintiffs had consented to the erec- tion of the depots, and had recognized the land as the pToperty of the defendant, and had waived error in the location of the premises. It was held that the finding was beyond the issue, and that the find- ings were defective in not finding upon the issue presented. Robinson v. Pitts- burg R. R. Co., 57 Cal. 417. Stewart v. Camden, &o. R. R. Co., 33 N. J. L. 115. Ah action for consequential damages to adjoining land cannot be joined with an action for possession of land unlaw- fully taken by a railway company. Welsh (1. Chicago, &c. R. R. Co., 34 Wis. 494. A complaint in ejectment for land de^ scribed by reference to monuments need not aver positively the existence of such monuments. Thus, when the land is de- scribed as all that part of a designated lot lying within one hundred feet on either side of a certain railroad track, it is no objection to the complaint that- it "does not positively, avet ' that there is a track on' the land. May v. St. Paul, &o. E. R. Co., 26 Minn. 74. In ejectment where the defendant claimed title to the whole premises, disclaiming as to no part thereof, it was held immaterial that the defendant was invictual possession of only a part. Colorado Central R. E. Co. v. Smith, 5 Col. 160. Ejectment having been brought in C. county for lands then situate in that county, the subsequent in- clusion of the lands within another county by act of the legislature did not divest the jurisdiction of the Circuit Court for C. county in the absence of any provision in the act upon that subject. Cornell Uni- versity V. Wisconsin Central R. R. Co., 49 Wis. 158. Upon forfeiture of a lease an action of ejectment may be maintained to recover possession. Horton v. New York Central, &c. E. R. Co., 12 Abb. N. Cas. (N. Y.) 30. Occupancy of land by a railway in course of construction Is constructive notice of the company'^ rights therein. Detroit, &c. R. R. Co. V. Brown, 37 Mich. 533. Where land has been appropriated by a railroad com- pany without the payment of isompensatiom therefor, and the defendant corporation seeks to have the amount of the plaintiff's damages assessed on the trial pursuant to the statute, the damages are to be assessed". as. of the time oj the trial. Morin y. St. Paul, Minneapolis, & Manitoba K. E. Co., 30 Minn. 100. Mere silence, and inaction for the time being on the part of a land- owner, when informed that a. railroad company is constructing, its track over his property, will not be construed into acquiescence so as "to estop him from his action of ejectment. Walker v. Chicago, &c. E.R. Co., 57 Mo. 275. But the owner may by his own act estop himself from demanding actual payment of com- pensation as a condition precedent to the taking for public, uses ; and if he ex- pressly consents, or, wUh full knowledge of the talcing makes no objectitm, itit permits a public corporation to enter upon his land and expend ononey, and carry into operation the purposes for which it is taken, he will not be permitted to eject the paJties from possession for want of payment of the compensation. Pryzby- lo.wicz V. Missouri River R. R. Co., 17 Fed. Eep. 492. So where the owner has knowl- edge of tl\e fact that a company is pro' ceeding to locate and construct its road on his land, and allows it to expend large sums of money in improvements for this purpose without interfering, he is estopped from evioting it by ejectment. New. Orleans, &c. R. R. Co. v. Jones, 68 Ala. 48. A judgment for possession of real estate against a party not in possession, and wfio holds only a n^ked legal title, does not affect the rights of one not a party to the action who has possession and full equitable title. Kansas Pacific R. R. Co. V. McBrotney, 12 Kans. 1. 1 Ewingi). St. Louis, 5 Wall. (U. S.) 513; Peoria R. R. Co. v. Schertz, 84 111. 135 ; Blaisdellw. Winthrop, 118 Mass. 138; Bathe V. Dayton, &c. R. R. Co., 37 Ohio St. 147. VOL. II. — 8 922 EMINENT DOMAIN. [chap. XIV. A recovery of damages in an action of trespass is no concession of the right of the railway company, nor are the damages recovered in any sense a substitute for the damages given under statutory proceedings, but as a rule only cover the past injury ; ^ and in sub- sequent proceedings by the corporation to condemn the land, the damages recovered in an action of trespass for the wrongful entry are not to be deducted from the damages assessed.^ The remedies are entirely distinct from each other in their nature and purposes,' and the pendency of an action of trespass is not a bar to proceedings to condemn,* nor is the pendency of proceedings to condemn a bar to an action of trespass where the entry was unlawful^ If the 1 Anderson R. R. Co. w. Kernodle, 54 Ind. 314 ; Blodgett v. Utica/, &c. R. R- Co., 64 Barb. (N. Y.) 540 ; Hartz v. St. Paul R. R. Cp., 21 Minn. 358 ; Haning- ton V. St. Paul R. R. Co., 17 id. 215 ; Adams v. Hastings R. R. Co., 18 id. 260. ? Blodgett V. Utica R. R. Co., 64 Barb. (N. Y.) 580 ; Harsh v. St. Paul R. R. Co., 17 Minn. 439 ; Oregon R. R. Co. V. Barlow, 3 Oregon, 311 ; Chicago & Iowa R. R. Co. V. Davis, 86 111. 20 ; Leber v. Minneapolis, &c. R. R. Co., 29 Minn. 256. In such cases the damages should include compensation for the ac- tual injury, and punitive damages if war- ranted by the circumstances, but not the value of the land. Anderson, &c. R. R. Co. V. Kernodle, 54 Ind. 314. The owner of land which has been unlawfully taken and occupied by a corporation authorized by law to appropriate land cannot main- tain an action for the value of the land so taken and also damages accruing by rea- son of such appropriation, if the circum- stances are such that he may recover the land itself. In such case the owner may recover compensation and damages by special proceedings under the statute, or the land itself, as in other case's of unlaw- ful entry. Atlantic & Great Western R. R. Co. V. Robbins, 35 Ohio St. 531. Thus, an action was brought in trespass to try title . against a railway company, and for damages for destruction of, fences and or- chards, for fencing in twenty acres, and other items of damage, with a prayer in the alternative, — for restoration of the premises, for damages and injunction ; or, if the railway company was entitled to have a right of way condemned, that it be set aside by metes and bounds. The plain- tiff, it was shown, had conveyed by deed a right of way over the land to the com- pany. It was held that the admission of evidence showing . the depreciation of the value of the entire property by reason of the location and construction of the rail- way, connected with the fact that the greater part of the charge related to the condemnation of the right of way and measure of damages in such cases, all of which resulted in an inconsistent verdict, was such error as to require a reversal of the judgment. Houston, &c. R. R. Co. V. Adams," 58 Tex. 476. Where a rail- way company entered upon the land of C. and built its railway, and C. brought an action of trespass quare clausum fregii against the company, and recovered judg- ment, which was paid, and C. afterwards peaceably retook possession of the prem- ises, after which the railway again entered and rebuilt its track, it was held that C. might recover damages in a second suit. Illinois, &c. R. R. & Goal Co. o. Cobb, 82 111. 183. When damage is done to lands held by a corporation, the party by whose negligence such injury was caused cannot escape liability by showing that the corporation was not permitted by its charter to acquire title to the property, or that it acquired it for purposes unau- thorized by law. Farmers' Loan & Trust Co. V. Green Bay, &c. R. R. Co., 11 Biss. (U.S. C. C.)384. ' Loop V. Chamberlain, 17 Wis. 504. * Secombe v. Milwaukee R. R. Co., 23 Wall. (U. S.) 108. ' Cobum V. Pacific Lumber Co., 46 CaJl. 31. SEC. 247.] TKESPASSEB, "WHEN. 923 company, after a wrongful entry, commences proceedings 'to con- demn the laiidj the damages arising from the trespass are not to be considered,^ nor, if they are so included, does it bar an action of tres- pass in favor of the owner when the entry was made.^ If a build- ing is erected upon land without the assent and agreement of the owner of the land, it becomes at once a part of the realty, and is the property of the owner of the freehold. Hence, where a railroad company, having obtained a decree for the condemnation of a tract of land without the knowledge of the owner, erected upon it a building of a permanent character for a depot, and afterward the decree was adjudged to be void,_it was held that the building had' become a part of the realty, and could not be removed by the company ; and it made no difference that it was set upon posts and could be taken away without injury to the ground.^ So a^ railway company which has constructed its track upon a per- son's land, without filing a written location or presenting a plan thereof, or payiqg or tendering any damages for the land so taken, can- not enter upon the land for the purpose of removing the track laid upon the road-bed, and structures placed upon the land ; such property becomes a part of the realty ; and the fact that the original entry and construction were made without objection by a mortgagor in possession cannot avail against the title acquired by the mortgagee by the subsequent foreclosure of his mortgage.* So where the trespass consisted in constructing a railroad across a farm without the right to do so having been acquired by ascertaining and paying compensa- tion to the owner, it was held that if the ties and rails increased the value of the farm, that should be considered in determining the amount of damages ; but if the farm was in no way benefited or enhanced, in value by the ties and rails being laid across it, no deduction from the damage done to the farm should be made on account of the value of the ties and rails. In other words, conced- ing that the ties and rails became the property of the land-owner, their value could not be set off against the damage occasioned by the trespass.^ 1 Blodgett V. Utica, &c. E. E. Co., 64 Co., 17 Minn. 215 ; Pierce v. Worcester, Barb. (N. Y.) 580 ; McClinton v. Pitts- &o. E. E. Co., 105 Mass. 199 ; Central burgh, &o. E. E. Co., 66 Penn. St. 404 ; E. E. Co. v. Hetfield, 29 TS. J. L. 206. Missouri, &c. E. E. Co. v. Ward, 10 Kan. ' Hunt v. Missouri Pacific E. E. Co., 352 ; Salma, &c. E E. Co. v. Keith, 53 76 Mo. 115. Ga. 178 ; Praetz v. St. Paul E. E. Co., 17 * Meriam v. Brown, 128 Mass. 391. Minn. 163. * Sohroeder v. De Graff, 28 Minn. 299. 2 Harrington v. St. Paul & S. 0. E. E. 924 EMINENT DOMAIN. [CHAP. XIV. If a land-owner, knowing that a railway company has entered, upon his land an^ is engaged in constructing its road without having complied with the statute, remains inactive and permits them to go on and expend large sums in the work, he will be estopped from maintaining either trespass, or ejectment for the entry, and will be regarded as having acquiesced therein ; ^ but such acquiescence will not deprive him of his statutory remedy, unless the statutory limitation has expired.^ So too, where a railroad company enters upon and occupies land for the use of its road, without complying with the requirements of the statute, without the consent of the owner, and the owner has done no act which amounts to a waiver of his rights, the corporation has no title thereto as against the owner ; consequently neither does a mortgagee or lessee of the road acquire any ; and a court of equity, upon a bill brought by the owner for that purpose, will enjoin the corporation, or any person claiming under it, from using the land for the purposes of such road, unless they pay the land damages to the owner within a time specified in the decree.' Where a railway company enters upon lands under proceedings to condemn it, which are afterwards declared void, if it subsequently takes the same under valid proceedings, the owner of the land cannot maintain trespass against it for the first entry. Thus, in a Michigan case,* a railroad company instituted proceedings to con- demn land, and an award was made and the amount deposited subject to the land-owner's order. The company immediately en- tered the land, digging up the trees and fences and building 1 Lexington, &o. R. R. Co. v. Ormsby, estoppel. After the road was surveyed 7 Dana (Ky.), 276 ; Harlow u. Marquette, and located, but before her land was &o. R. R. Co., 41 Mich. 336 ; Cairo, &o. taken, the railroad Was mortgaged to se- R. R. Co. V. Turner, 31 Ark. 494 ; Petti- cure its bonds owned by the defendant, bone V. La Crosse, &o. R. R. Co., 14 Wis. the C. Railroad Company, and leased to 443. the defendant, the E. Railroad Company. "^ Gay V. Maine Central H. R. Co., 72 The mortgage was foreclosed and the title Me. 96 ; Maxwell v. Bay City Bridge Co., established in the bondholders. A bill 41 Miclj. 453 ; Smart «. Portsmouth, &c. having been brought to enjoin the defend- R. R. Co., 20 N. H. 233 ; Western Penn. ants from occupying the oratrix's land, it R. R. Co. V. Johnston, 59 Penn. St. 290. was held that the defendants should be ' In Kendall v. Missisquoi, &c. R. R. enjoined unless they pay the land damages. Co., 55 Vt., the defendant constructed its * Dunlap v. Toledo, &c. R. R. Co., 50 road across the land of the oratrix, a mar- Mich. 470. Nor in such case is the land- ried woman, without complying with the owner entitled to have the value of the statute as to taking land for railroad pur- track assesspil to him as damages. Cali- poses, without her consent, and without fornia, &c. R. R. Co. v. Armstrong, 46 any action of hers that amounted to an Cal.' 86, BEC. 247.] TRESPASSER, WHEN. 925 their road-bed. Oa eertiora/ri, the proceedings to condemn were declared void for improper service of notice. The proceedings were immediately renewed and a valid condemnation made, which resulted in a larger award to fhe owner on account of the injury- done. It was held that trespass could- not he maintained by the owner for the damage done by the railroad company.^ There is no doubt that a right in action, where it comes into existence under common-law principles, and is not given by statute as a mere penalty or withojat equitable basis, is as much property as any tangible possession, and as much within the rules of constitutional protection.^ If the railroad company takes possession- of land, cuts down trees, and removes the soil, under pretence of a judgment, which proves to be ntterly void, and which could therefore constitute no protection whatever, the land-owner has his remedy for the trespass. And even though the company commenced subsequent legal proceedings which resulted in a regular condemnation, while the right of the owner to recover would have been defeated thereby,i yet ~ if he had sold the land'to a third person, the purchaser's right to recover from the railroad company would have remained unaffected, for the injury was already inflicted, and the injurious consequences which had resulted, or were likely to result, would be taken into account ' in determining the price.^ But where the railroad itself proceeds to condemn the reversion to its own use, and in doing so takes and pays for the owner's interest according to its value before the wrongful acts were committed, the new and regular proceedings are a substitute for the first and wrongful proceedings, and so far as the wrongful acts worked an injury to the land, the consequences are by the new proceedings appropriated to and taken and borne by the com- pany itself. The owner ceases to have any reversion to which continuous injury can attach, and his previous right of action, so far as it looked to the future and was continuous, has ceased to exist, for the reason that by the necessary effect* of the condemnation proceedings it has been estimated and taken into account, and the owner, by the payment made, has been satisfied for it* 1 Bloodgood V. Mohawk, &o. R. R. Ijard v. Brainerd, 35 Conn. 563 ; Griffin Co., 18 Wend. (IS. Y.) 9 ; Blodgett v. v. "Wilcox, 21 Ind. 370. Railroad Co., 64 Barb. (N. Y.) 580; « McFadden i». Johnson, 72 Penn. St. Powers V. Hurmer, 51 Mo. 136. ' 335. 2 Johnson v. Jones, 44 111. 142 ; Huh- * Dunlap v. Toledo &o. R. R. Co., 50 Mich. 470. 926 EMINENT DOMAIN. [CHAP. XIV. A court of equity has jurisdiction to restrain the cominission or continuance of trespasses to lands. But when the title is purely legal, and the property not of peculiar value, the court will not intervene unless the remedy at law is inadequate, or there is a necessity for intervention to prevent irreparable injury.^ There must be such an injury as from its nature is not susceptible of being compensated by damages at law, or such as from its continu- ance or permanent mischief must occasion a constantly recurring grievance, which cannot . be prevented otherwise but by an injunc- tion.^ There is no authority which ~ authorizes the interference of the court to prevent the mere taking possession of lands and holding them vi et armis ; nor is there any authority -which will justify interference because of the mere continuance of a tortious possession. The entry and possession, however long it may continue, forms but one grievance, a single and indivisible cause of action, capable of full redress by legal remedies.^ The general rule is, that a corpora- tion having the right to take lands in the exercise of the power of eminent domain, if it enters upon them without making just com- pensation to the owner, a court of equity will intervene for the protection of the owner until just compensation is made, if he applies seasonably. In the case of railway companies entering upon lands, without right, to lay their tracks, etc., courts of equity make an exception to the rule, upon the ground of necessity to prevent irreparable injury.* But the application must be made seasonably; the right to relief is lost by laches in seeking the protection of the court. In a New Hampshire case,^ the court say : " Another principle which is held to govern the discretion of the court in these cases is that the application for an injunction must be seasonably made; and therefore if it appears that the owner of the property supposed to be affected by a nuisance, has allowed it to exist for several years, with a knowledge of its existence and without any objection, and especially if he has acquiesced in the claim of another to use and enjoy the subject of complaint as of right, and to expend money upon the strength of it, with his knowledge and without objection, courts of equity will decline to grant an injunc- 1 M. & W. p. E. R. Co. V. "Walton, 14 = Ballantine v. Town of Harrison, 37 Ala. 207 ; Burnett v. Craig, 30 id. 135 ; N. J. Eq. 560 ; 45 Am. Rep. 667. Brooks V. Diaz, 35 id. 599 ; Nevers v. 4 Johnston v. Hyde, 25 N. J. Eq. 454 ; Myer, 52 id. 198 ; Boulo v. R. R. Co., 55 Southmayd v. McLaughlin, 24 id. 454. id- *80. 6 Bassett v. Salisbury Mfg. Co., 47 2 2 Story Eq. § 925 N. H. 439. SEC. 248.] STATtJTOEY BEMEDV: IS EXCLUSIVE. 927 tion, but leave him to his remedy at law." J' Consideratibns of public policy, as well as recognized principles of justice between parties, require that the courts should hold that the property of the owner cannot be reclaimed", and that there only remains to him a right of compensation. This is the generally recognized doctrine ; and it is rigidly applied even by those courts which interfere most liberally for the protection of land-owners aJgainst the unlawful entry of rail- road or similar corporations.^ , As a rule, legal rights, except in cases of absolute necessity, are to be asserted and established in courts of law ; and even in cases where a court of equity does interfere, it will not assume jurisdiction over the legal aspects of the case. Sec. 248. statutory Remedy is exclusive. — It is "now almost universally held that where the statute permits land to be taken for public uses, aud provides a remedy therefor, that such remedy, is exclusive, and the common-law remedy is merged therein. Thus^ in a Rhode Island case,* the statute empowered the city of Providence 365 ; Mason v. Kennebec, &c. B. Co., 31 Me. 215 ; Boothbay v. Androscoggin, &c E. Co., 51 Me. 318 ; Gowen v. Penobscot, &c. E. Co., 44 Me. 140 ; MoCormack v. Tene Haute, &c. R. R. Co., 9 Ind. 283 ; Null V. Whitewater, &c. Canal Co., 4 Ind. 431 ; Lewiston v. Junction R. R.. Co., 7 Ind. 597 ; Lafayette, &c. R. Co. v. Smith, 6 Ind. 249 ; New Albany, &o. R. Co. v. Connelly, 7 lud. 32 ; Furness v, Hud- son River E. Co., 5 Sandf. (N. Y.) 551 ; Selden v. Delaware, &c. Canal Co., 29 N. Y. 634 i Calking v. Baldwin, 4 W6nd. (N. Y.) 667 ; Cairo,, &c. E. Co> v. Turner, 31 Atk. 494 ; Stodgill v. Chicago, &c. R. Co., 43 Iowa, 26 ; Daniels v. Chicago, &o. R. Co., 35 Iowa, 129 ; Melntire v. West- ern North Carolina B. Co., 67 N. C. 278 ; Tennessee, &c. E. Co. v. Adams., 8 Head (Tenn.), 596 ; Colcough v. Nashville, &c. E. Co., 2 Head (Tenn.), 171 ; Brown a. Beatty, 34 Miss. 227 ; Fuller v.' Edings, 11 Rich. (S. C.) 239; McLaughlin v. Charlotte, &c. E. Co., 5 Rich. (S. C.) 583 ; Little Miami E. Co. v. Whiteacre, 8 Ohio St. 590; Hue.ston v. Eaton, &c. E. Co., 4 Ohio. St. 685 ; Philadelphia, &a. E. Co. V. Yeiser, 8 Penn. St. 366; Mc- Kinney v. Monongahela' Nav. -Co., 14 Penn. St. 65 ; Fehr v. Schuyki'U Nav. Co., 69 Penn. St. 161 ; Philadelphia, &c. R. Co. V. Williams, 54 Penn. St. 103 ; Koch V. Willlamsport Water Co., 65 Penn. St. 288 ; Cumbedand "Valley R. Co. v. Mo- 1 Goodin v. Cincinnati E. Co., 18 Ohio St. 169. 2 Binney's Case, 2 Bland Ch. (Md.) 99 ; Morris, &c. R. Co. v. Prudden, 20 N. J. Eq. 530 ; Eastern v. New York, &c. R. Co., 26 N. J. Eq. 359 ; Traphagen v. Mayor, 29 N. J. Eq. 206. 8 Smith V. Tripp, 14 B. L 112. See also sustaining the same view, Perley v. Boston, &c. R. Co., 57 N. H. 212 ; Orr v. Quimby, 54 N. H. 590 ; Eaton v. Boston, &o. E. Co., 5 N. H. 504 ; Dearborn v. ' Boston, &c. R. Co., 24 N. H. 179 ; Henni- ker V. Contoocook Valley R. Co., 29 N. H. 146 ; Clark v. Boston, &c. E. Co., 24 N. H. 114 ; Troy v. Che'shire B. Co., 23 N. H. 83 ; Lafayette Plank Boad Co. v. New Albany, &o. R. Co., 13 Ind. 90; Indiana Central R. Co. v. Oaks, 20 Indi 9 ; Green v. Boody, 21 Ind. 10 ; Teick v. Carver County, 11 Minn. 292 ; Lindell v. Hannibal, &c. R. Co., 36 Mo; 543 ; Clark V. Hannibal, &c. R. Co., 36 Mo. 202 ; Pet- tibone v. La Crosse, &o. B. Co., 14 Wis. 448 ; Sherman v. Milwaukee, &c. E. Co., 40 Wis. 645 ; Kennedy v. Milwaukee, &c. R. Co., 22 Wis. 681 ; Ford v. Chicago, &c. B. Co., 14 Wis. 609; Stowell v. Flagg, 11 Mass. 364; Perry v. Worcester, 6 Gray (Mass.), 544 ; Stevens v. Middle- sex Canal Co., 12 Mass. 466; Mellen v. Western R. Co., 4 Gray (Mass.), 301; Sabin v. Vt. Central R. Co.," 25 Vt. 363 ; Vermont Central R. Co. o. Baxter, 22 Vt. 928 EMINENT DOMAIN, [CHA'P. XIV. to take land for public water-works, and provided that the owner of condemned land might recover compensation by filing his- petition in the Supreme Court " at any time within, but not after one year from the time of the taking," if he did not agree with the city upon the price of the land. A., the owner of land taken, permitted ,the statutory time to elapse without agreeing upon the price, and then brought assumpsit against the city, declaring first on an implied promise to pay him just compensation, second on a promise to pay the value of the laud with interest, and third on a promise to pay for the permissive taking and use of the land. The city pleaded the statute, the failure to agree for the price, and the lapse of the statutory time in bar of the suit. To this plea A. demurred. It was held that the plea.was good and that A. was remediless, the statutory remedy being exclusive.-' The few cases which hold other- wise are exceptional. It is well settled that a reasonable limitation of the time for pursuing the statutory remedy is constitutional.^ Lanahan, 59 Penn. St. 23 ; Johnson v. St Louis, &c. R. Co., 32 Ark. 758. But in Georgia it is held that the statntoiy remedy is not exclusive, and that trespass may be maintained by the owner. ' At- lantic, &c. K. Co.D. Euller, 48 Ga. 423 ; Carr v. Georgia R. Co., 1 Ga. 524. And in Texas, vphere the company alone can institute proceedings to condemn, it is held that under the statute, where a rail- road company enters upon land without condemnationj the land-owner is entitled to bring action for its value in the courts ; and it is not a defence to his action that he has not sought relief under a statute for condemning land. When a statute provides a tribunal and mode of proce- dure by which property may be con- demed to a public use, such tribunal has" an exclusive jurisdiction, and the person or corporation to whom the statute gives the right to institute a proceeding to com- demn land cannot resort to any other. In this State, the right to institute a pro- ceeding to condemn land for the roadway of a railroad is given to the company seeking it, and to no other person ; and if a company fails to avail itself of this right, and without the consent of the owner enters upon his land, such owner is entitled to resort to any court hav- ing jurisdiction, by reason of the amount of damage claimed, for redress of the wrong. International, &c. R. Co. v. Ben- itos, 59 Tex. 326; 10 Am. &. Eng. R. Cas. 122. Where lands have been entered upon and appropriated without authority,* a statute subsequently passed which au- thorizes the appointment of commissioners to appraise the damages already sustained, and which makes the award and payment or tender of the sum awarded a bar to any action to recover damages, is unconstitu- tional in that it deprives the land-owner of his right to a trial by jury. In re Townsend, 39 N. Y. 171. ' Colcough V. Nashville, &c. R. Co., 2 Head (Tenn.), 171 T Stevens v Middle^ sex Canal, 12 Mass. 466 ; Heard v. Mid- dlesex Canal, 5 Met. (Mass.) 81; PeiTy II. Worcester, 6 Gray (Mass.), 544 ; Spring V. Russell, 7 Me. 273 ; Mason v. Kenne- bec, &c. R. Co., 31 Me. 215 ; Henni- ker V. Contoocook Valley R. Co., 29 N. H. 146 ; Aldrich v. Cheshire R. Co., 21 N. H. 859; Calking v. Baldwin, 4 Wend. (N. Y. ) 667; McKinney v. Monongahela Nav. Co., 14 Penn. St. 65; Harper ». Richardson, 22 Cal. 251 j McCormack r. Terre Haute, &c. R. Co., 9 Ind. 283 ; Dyer V. Tuscaloosa B. Co., 2 Port. (Ala.) 296. ^ Cooley Const. Lim. 501 ; Rexford ». Knight, 11 N. Y. 308 ; Taylor v. Marcy, 25 111. 518 ; Harper v. Richard- son, 22 Cal. 251 ; Cupp v. Commissioners, 19 Ohio St. 173 ; Simms ». Memphis, &c. R. Co., 12 Heisk. (Tenn.) 62L &EC. 248.] STATUTORY REMEDY IS EXCLUSIVE. 929 These cases plainly presuppose that the statutory remedy is exclu-^ sive ; for otherwise any limitation shorter than that of the proper Common-law taction would amount to nothing.^ If an express promise on the part of the corporation is relied upon to avoid the effect of the limitation clause in the statute, in order to be provable under the pleadings it must have been general in its terms and nugatory because without consideration, whether made during the year or after its expiration.^ But where the company is alone clothed with the right to in- stitute proceedings, if they fail to do so, but enter into possession without the consent of the owner, the latter may resort to any court having jurisdiction, to redress the injury either by an action of ejectment or trespass .to recover the. value of the land.* Thus, in a Texas case,* an action was brought by the plaintiff to recover damages for an ' entry into his lands by the defendant to construct its railway, without first instituting proceedings to condemn the land and without 'the owner's consent. The petition alleged that the fencing around the lot was torn down and destroyed, and that by reason of the failure of the company to restore it, he was prevented I Coe D.'Wise, L. E. 1 Q. B. 711. '^ Markman v. Shepherdson, 11 Ad. & El. 411 ; Shepard v. Rhodes, 7 E.. I. 470 ; Eastwood V. Kenyon, 11 Ad. & El. 438 ; MUls V. Wyman, 3 Pick. (Mass.) 207 i Cook V. Bradley, 7 Conn. 57 ; Bartholo- mew U.Jackson, 30 Johns. (N. Y.) 28; Ehle V. Judson, 24 Wend. (N. Y.) 97 ; Porterfield «. Butler, 47 Miss. 165. The true doctrine has never been better stated than by Lord Dbnman in Beaumont v. Beeve, 8 Q. B. 483 : "An express ■prom- ise cannot be supported by a consideration from which the law could not imply a promise, except when the express promise does away with a legal suspension or bar of a right of action, which but for such suspension or bar would be yalid." See also Roscorla v. Thomas, 3 Q. B. 234. The idea that a promise can be supported by a mere moral obligation, simply because the promise is express, involves a logical inconsistency. ' Bentonville, &c. R. Co. v. Baker, 45 Ark. 252 ; Cairb, &c. E. Co. v. Trout,' 32 Ark. 17 ; Smith v. Chicago, to. E. Co., 67 lU. 196; Atlantic v. Georgia R. Co., 48 Ga. 423 ; Bliss v. Chicago, &e. E, Co., 43 Wis. 192 ; Kansas, &c. R. Co. b. Streeter, 8 Kan. 135 ; Gqulard v. St. Louis, 36 Mo. 532 ; Davis i'. Russell, 47 Me. 443 ; Stein v. Burden, 24 Ala. 146 ; Loop V. Chamberlain, 20 Wis. 135 ; Pet- tibone i'. La Crosse, &o. B. Co., 14 Wis. 443; Blesch v. Chicago, '&c. R. Co., 43 Wis. 183 ; Cushman v. Smith, 34 Me. 237 ; Gowen w. Penobscot R. Co., 44 Me. 140; Hall v. Pickering, 40 Me. 548 ; Eward v. Lawrenceburgh, See. R. Co., 7 Ind. 711 ; Sherman v. Milwaukee, &c. R. Co., 40' Wis. 645. The statutory remedy does m)t include cases of trespass committed by the company before its possession of the land became . lawful, and a separate action for such damages may be sustained. Selma, &c. R. Co. v. Keith, 63 Ga. 178 ; StodgbiU V. Chicago, &c. R. •Co. 43 Iowa, 26; Missouri, &u. E. Co. v. Ward, 10 Kan. 352 ; Parsons, v. Howe, 41 Me. 218 ; Proprietors, &c. v, Na.shua, &c. Locks Co., 10 Cush. (M^ss.) 385; Matthews v. St. Paul, &c. E. Co., 18 Minn._ 434 ; In re Town- send, 39 N. Y. 171 ; Whitakeri). Delaware, &c. R. Co., 87 Penn. St. 34 ; Pomeroy v. Chicago, &o. E. Co., 25 Wis. 641 ; Bell v. Midland Ry. Co., 10 C. B. N. s. 287. • * Internat. &c. E. Co. ». Benitos, 59 Tex. 326 ; 10 Am & Eng. R. Cas. 122. 930 EMINENT DOMAIN. [chap. XIV. from making a crop on the land. The plaintiff claimed both the damages and the value of the land, and the court held that both could be recovered in the action.^ This would be the rule in all the 1 Stayton, J., said: "It is claimed that the District Court had no jurisdic- tion of the cause, and that the sole remedy which the appellees had was by a proceed- ing under the statute to condemn the land to the use of the railroad. This position cannot bfe maintained. It is held by the great weight of authority that when a statute provides a tribunal and mode of procedure by which property may be opli- demned to a public use such tribunal has an exclusive jurisdiction, and that the person or corporation to whom the statute gives the right to institute a proceeding to condemn land cannot resort to any other. In this State the right to institute a proceeding to condemn land for the roadway of a railroad is given to the com- pany seeking it, and to no other person ; and if a coppany fails to avail itself of .this right, and without the consent of the owner enters upon his land, such owner is entitled to Resort to any court having jur- isdiction by reason of the amount of dam- age claimed for redress of the wrong. •Atlantic v. Georgia R. R. Co., 48 Ga. 423 ; Sherman v. the Milwaukee .L. S. & W. E. R. Co., 40 Wis. 652 ; Bliss v. the Chicago^ N. W. R. R. Co., 43 Wis. 192 ; Kansas Pacific R. R. Co. v. Streeter, 8 Kan. 135 ; Stein «. Burden, 24 Ala. 146 ; Goulard v. the City of St. Louis, 36 Mo. 532. In this case the plaintiffs have elected to receive compensation for the value of the land taken, and we see no reason why the District Court has not jurisdiction under the. amounts in the petition, the defendant having failed to pursue the statutory method of condem- nation to award to the plaintiffs such com- pensation as they may be entitled to, arfd in the same proceeding to vest in the de- fendant the right of way. In speaking upon this subject, Brucjs, J., delivering the opinion of the court, said : ' They were required and were bound to take the ini- tiatives. No burden is thrown upon the owner of the land. Whilst ^nandwmuB is the proper remedy in many cases against «uch a corporation, this is not one of them. Here the corporation was, without author- ity of law, taking possession of appellant's land, and the question is, shall they be allowed to rob the appellant at defiance, and compel him to institute proceedings by which he is to be deprived of his land ? Two remedies, it seems to us, were open to the appellant, — this action of ejectment, or an action to recover the value of the land taken.' Smith v. C. & A. St. L. R. R. Co., 67 111. 196. In the case of Oilman V. Sheboygan, &c. R. R. Co., 40 Wis. 660, Cole, J., said : 'Doubtless an action of ejectment would lie against the defend- ant to recover the possession of the prop- erty. But the plaintiff has not seen fit to resort to that remedy, but seeks by an action in equity to compel the defendant either to abandon the possession and vtse of his land, or to pay him for it. His right to that equitable relief is founded upon the fact that he is owner of the land, or upon his title to the property. His land having been taken for public use, the defendant company having adopted and ratified the original taking, it would seem plain that the owner should either have his just compensation required by the Constitution to be paid, or have relief by way of permanent injunction.' It would seem that a recovery of the value of the land taken, without a decree vesting the right of way in the defendant, would be a bar to another action based upon the orig- inal taking, or the continued possession, and that the reception of the full value would, at least, operate as a dedication of the right of way to the public use to which it has been applied. Goulard v. St. Louis, 36 Mo. 534. While it is true that upon a prior possession a suit of eject- ment or of trespass may be maintained against a wrong-doer, and while it is true that in a proceeding instituted by a rail- way company under the statute to con- demn land for a public use, in which the application alleges the ownership, it is not necessary for the alleged owner to make proof of his title, yet, even then, an in- quiry can be made into the character of S£C. 249.] PROCEEDINGS TO CONDEMN. 931 States, as we have seen, if the company entered without performing the conditions precedent imposed by the statute. Sec. 249. statute authorizing Froceediags to Condemn : Provision for Compensation. — The character of the proceedings to condemn lands, as well as the questioa as to who shall take the initiative therein, or whether the corporation alone, or the laud-owner also may bring proceedings, is dependent entirely upon the provisions of the statute in that respect ; and as the statutes differ essentially upon these points, it will not be advisable to attempt to outline those matters in this work, as they are questions easy of solution in a given jurisdiction, from the statute itself. If an adequate and certain pro- vision for compensation is not provided, then the statute is void and the land-owner is entitled to remedies legal and equitable to protect" his property against condemnation under the statute.^ But it has been the estate *hich the alleged owner has, in order to regulate and determine the ex- tent of compensation to which he is enti- tled ; for that must depend upon the interest which such owner has in the land to be taken. It is believed, however, where, as in this case, the proceeding is instituted by the person who claims to be thfe owner of the land, that the burden of showing the interest which he has in the land rests upon him ; for it is part of his case necessary to be determined in order to measure the damage to which he is enti- tled." Peoria & Rock Island 'B. R. Co. v. Biyant, 57 111. 479 ;' Robbins v. Milwau- kee H. R. R. Co., 6 Wis. 644 ; Directors of the Poor v. Railroad Co., 7 W. & S. (Penn.) 236. 1 Hamilton v. Annapolis, &c. R. R. Co., 1 Md. Ch. 107 ; Perry v. Wilson, 7 Mass. 393 ; Lee v. Pembroke Iron Co., 57 Me. 481 5 Tuokahoe Canal Co. v. Tucka- hoe, &,c. R.-k Co., 11 Leigh (Va.), 42; Cushman v. Smith, 34 Me. 247 ; Walther V. Warner, 25 Mo. 277 ; Stevens v. Mid- dlesex Canal Co., 12 Mass. 466 ; Drury ». Middlesex R. R. Co., 127 Mass. 571; Bellinger h.'N. Y. Central R. R. Co., 23 N. Y. 42 ; Dimmock h>. Broadhead, 75 Penn. St. 464 ; Simickson v. Johnson, 19 N. J. L. 129 ; Seneca Road Co. v. Auburn R. R. Co., 5 Hill (N. Y.), 170; Conn. River B. R. Co. v. County Comm'rs, 127 Mass. 100 ; Bonaparte v. Camden &Amboy R.R. Co., Baldw. (U. S. C. C.) 205; Thacher v. Dartmouth Bridge, 18 Pick. (Mass.) 501. Whenever in pursuance of law the property of an individual is to be divested by proceedings against his will, •there must be a strict compliance with all the provisions of the law which are made for his protection and benefit. These pro- visions must be regarded as in the nature of conditions preoede'nt, which must not only be complied with before the right of the property owner is disturbed, but the party claiming authority under the ad- verse proceeding must affirmatively show such compliance. A party's land cannot, under any guise or pretext, be taken for a highway until compensation, ascertained by a jury as prescribed by the statute, is paid to him, and the record must affirma- tively show that the law has been ob- served. Where the verdict of the jury shows that benefits were allowed against the value of the land, it will, under the order establishing the road, be absolutely void. Such defect goes to the jurisdic- tion of the commissioners. The owner of land condemned for a highway for the use of the public is entitled to be paid in money for the full value of the land ac- tually taken, and he cannot be paid there- for in benefits to result from the laying out of the highway. As to damages, he may be thus compensated. Carpenter v. Jennings, 77 111. 250 ; Hayes v. 0. 0. &c. R. R. Co., 54 id. 373 ; Todd v. Kankakee I. R. R. Co., 78 id. 120 ; Marsh v. Chea- 932 EMINENT DOMAIN. [chap. XIV. held that such an omission may be cured' by a subsequent act provid- ing a remedy ; but while such subsequent act will validate the former act,^ it wUl not give validity to proceedings brought under such act to condemn lands before the subsequent act took effect ; ^ and in the case last cited it was held that the land-owner is entitled to a writ of prohibition to the County Commissioners to prevent them from pro- ceeding with the assessment of damages.' But as this provision is for the benefit of the land-owner, he may waive the want of such a provision as well as any other defects which are for his benefit alone.* Not only must adequate and certain compensation be provided, but the statute inust also provide a certain and adequate remedy for the assessment of the damages and their prompt payment-^ If a definite fund is provided out of which payment is to be made,® or if adequate provisions , for payment and recovery are provided, it is sufficient.^ But the mere circumstance that 'a right of action is given, leaving the land-owner to collect^ his judgment from the corporation if he can, and placing his remedy in that re- spect upon the plane of an ordinary debt, is not a compliance with the provisions of the Constitutiori.^ The land cannot be taken, until compensation is made 'therefor. The language of this restrictive nut, 14 111. 225 ; Smith v. Chicago, &c. R. Co., 67 111. 191 ; Mitchell v. Illinois & St. L. R. Co., 68 111. 286 ; Chicago, &a. E. Co. V. Smith, 78 111. 96 ; Hyslop v. Finch, 99 III. 171. 1 Shute V. Chicago, &c'. R. Co., 26 111. 436 ; Bonaparte v. Camden, &c. R. Co., 1 Baldw. (U.S.) 205 ; State v. Seymour, 35 N. J. L. 47. '^ Conn. River R. Co. ». Counly Cqm'rs, 127 Mass. 100. * In this case it was provided in the statute that the damages should be paid out of the earnings of the railway com- pany, and the court held the act uncon- stitutional even if such earnings would probahly be sufficient to pay the land damages. * Kickner v. "Warner, 22 Ohio St. 275 ; Johnston v. Rankin, 70 N. C. 650 ; Burns v. Milwaukee, &e. R. R. Co., 9 Wis. 450 ; Haskell v. New Bedford, 108 Mass. 208 ; Brooklyn Park Coqim'rs v. Armstrong, 45 N. Y. 234 ; Provolt v. Chicago, &c. R. R. Co., 57 Mo. 256 ; Brown v. Worcester, 13 Gray (Mass.), 31 ; Eanbury v. Connor, 3 N. Y. 511. 6 Ash V. Cummings, 50 N. H. 591 ; Orr 11. Quimby, 54 id. 690 ; Shearer v. Commissioners, 13 Kan. 145 ; St. Louis, &c., R.R. Co. V. Wilders, 17 Kan. 239 ; Bloodgood V. Mohawk, &e. R. R. Co., 18 Wend. (N. Y.) 9 ; McClinton v. Pitts- burgh, &c. E. R. Co., 66 Penn. St. 404 ; Shepardson v. Milwaukee, &c. R. E. Co., 6 Wis. «06 ; Powers v. Bears, 12 Wis. 213 ; Buffalo Bayou, &c. E. E. Co. v. Fen-is, 2 Tex. 588 ; Chambers v. Cincin- nati, &c. E. R. Co. (Ga,), 10 Am. & Eng. E. E. Gas. 376. « Conn. River R. E. Co. v. County Comm'rs, 127 Mass. 56. If provision is made that the State shall pay, it is suffi- cient, but a provision that the corporation shall pay out of an uncertain fund, as, out of the earnings of the road is not a compliance with the Constitution, and a statute making such a provision is abso- lutely void. Conn. River E. R. Co. v. l^anklin Co. Comm'rs, 127 Mass. 50. ' Orr V. Quimby, 64 N. H. 590. * Ash V. Cummings, 60 N. H. 691 ; Orr V. Quimby, ante ; Bohlman v. Green Bay, &o. R. E. Co., 30 Wis. 105. SEC. 249.] PROCEEDINGS TO CONDEMN. 933 clause in the Federal Constitution is, " Nor stall private property be taken for public uses without just compensation ; " and similar lan- guage is employed in most of the State constitutions. It is held that this provision does not apply to a merely temporary occupation of the land for preliminary purposes, but only to, an actual subjection of the property to an easement, or its final transfer.^ Therefore, com- pensation need not precede the preliminary entry upon the land by the corporation, hut it m%st be made, tendered, or secured before the title passes, or before the land is subjected to the easement. The con- stitutional provision does not permit the legislature to provide for an entry upon the lancjl by the corporation, and the «onstruction of its road without either a pre-payment of the compensation, or an acleC[uate security for its payment, when the amount thereof is ascertained.^ In a leading case ^ under this head Walworth, Chancellor, said : " A very important question which arises in this case is, whether the 1 Cushman v. Smith, 34 Me. 247. In Livermore «. Jamaica, 23 Vt. 361, it is said, ' ' To bring a case within the Consti- tution, there must he suck a taking of prop- erty as divests the owner of all title or am- trol over the land, and amounts to an unqvialified appropriation thereof." 2 Jones V. New Orleans, &c. R. Co., 70 Ala. 227 ; 14 Am. & Eng. K. Gas. 214 ; Covington, &o. E. Co. v. Piel, 87 Ky. 267 ! 33 Am. & Eng. R. Cas. 449. See the numerous oases cited anie, §§241, 246. ' Bloodgood V. Mohawk, &o. R. Co., 19 Wend. (N. Y.) 9. Where a railroad corporation enters into possession of the land of an indiyidnal for the use of the road, without his consent, and without first having assessed and tendered the damages, he may maintain an action against the company to recover possession of the land. Graham u. Columbus, &c. R. Co., 27 Ind. 260. But in Maine, where a railroad corporation have taken exclusive possession of land, they are allowed a rea- sonable time to obtain the title or an ease- ment in it. But where such occupation is under a glaira of title in fee-simple under a deed from the owner, when in fact no such right of occupation exists, they are not en- titled to a reasonable time for making the compensation, but are immediately liable to the owner in trespass ; and a delay to take proper measures to make compensa- tion and obtain title or easement is evi- dence of a design not to take those meas- ures ; and a continued occupation will be a trespass. Hall i/. Pickering, 40 Me. 548. And where an incorporated com- pany neglect to pay to a land-owner the compensation, determined in pursuance of the charter, for injury done to his prop- erty by flowage from the erection of a dam, a court of equity will, at the suit of the land-owner, interfere to abate the daiti, if the company refuse to pay the award. Ackermau v. Horicon Iron & Mfg. Co., 16 Wis. 150 ; Tweig v. Horicon Iron &' Mfg. Co., 17 Wis. 362. Where a street is taken by a railroad company, the remedy of an abutter, for an injury thereby, is not by statute, but the ordinary one at law to recover for a consequential injury. The lot -and street adjoining, as to the owner of the former, constitute but one piece of property, and an injury to the latter is an injury to' the former, and to the whole property. Protzman v. Ind., &c. R. Co., 9 Ind. 467. The title to land taken by a company under a charter which provides that they " should be deemed to be seized " of lands, on payment or deposit of their appraised value, does not vest in the company by the location of the road, or filing an appraisement of damages, until 934 EMINENT DOMAIN. [chap. XI7. legislature in fact authorized the vate property of the plaintiff and such payment or deposit. The payment or deposit of the money awarded is a con- dition precedent to the right of the com- pany to enter upon the land for the pur- pose of constructing their road. Stacey v. Vt. Central E. R. Co., 27 Vt. 39. Nor does it pasa by the filing of a survey in the office of the Secretary of State. Hetfield v. Central E. E. Co., 29 N. J. L. 571. Where the charter of a railroad company reijuired the company to pay or tender the damages for land taken for their road to the owner, before they should break ground upon the same, and if such damages could not be agreed upon by the parties, pro- vided for their assessment by commission- ers, from whose decision an unconditional right of appeal was given, it was held that the company could not, by tendering the amount of damages found by the commis- sioners, gain the right to enter upon the land, except for the purposes of survey, pending an appeal from the commission- ers' award. Browning v. Camden & "Wood- bury B. E. Co., 4 N. J. Eq. 47. Under an act incorporating a railroad company, which provided that the company, having paid the sum awarded into court, where the owner refused to receive it, should be seised of the estate, it was held that after the award and payment of money by the corporation, they werei owners of the land, though a certiorari had issued to remove the proceedings to the Supreme Court. Schuler v. Northern, &c, R. R. Co., 3 Whart. (Penn.) 555 ; Burlington, &c. E. E. Co. V. Sater, 1 Clarke (Iowa), 421. •The damages assessed for land taken for a railroad must be tendered before a right to enter can accrue ; but if it is important for the railroad to enter immediately and before an appeal from the assessment can be determined, the tender and acceptance so made will not preclude them from having the damages reduced on the ap- peal. Indianapolis & Cincinnati R. B. Co. V. Brower, 12 Ind. 374. The designa- tion of lands required, the appointment of commissioners, and their report of the compensation to be made, vests no right, either in the company to the lands, or in the owners to the money awarded. Until defendants to enter upon the pri- to construct their railroad thereon. an order of court is made, confirming the report, and directing the payment of the money, the proceeding may be set aside or abandoned. Hudson River E. E. Co. v. Cutwater, 3 Sandf. (N; Y.) 689. A stat- ute enabling a city to supply pure water, and to take land upon valuation by a jury, and compensation to the owners, provided that where " such valuation was paid or tendered to the owner or owners " of the property, it should "entitle the city to the use, estate, and interest in the same, thus valued, as fully as if it had been con- veyed by the owners." It was held that the city was not bound by the mere in4ni- sition and judgment thereon, but could rightfully abandon the location, and that payment or tender under the statute was indispensable to the vesting of the title ; but that it could be made liable, in an- other form of proceeding, to the land- owner, for any loss or damage sustained by reason of the conduct of its authorities in the premises. Grafif v. Mayor, &c. of Baltimore, 10 Md. 544. ^hen the route of a railroad is; before payment of the damages, shifted so as to avoid the land, this is an abandonment, and no interest in the land remains to the company, and no damages can be recovered against them under the award.' Stacey v. Vermont Central E. E. Co., -27 Vt. 39. When pub- lic officers have proceeded under statutory authority to condemn lands for the public use, and an appraisement of the value of the lands and damages has been made, but not yet confirmed by the court in pursu- ance of the stafote, such proceedings may be discontinued against the assent of the land-owners ; otherwise when the report of the appraisers has been accepted by the court. Water Commissioners of Jersey City, Matter of, 31 N. J. L. 72. But where proceedings have been in conformity with its charter, its title becomes perfect on the filing and recording of the rule of court made on the certificate of the com- missioners, and payment or deposit of the compensation awarded ; and an order va- cating the proceedings does not devest the title. Visscher v. Hudson Eiver R. R. Co., 15 Barb. (N. Y.) 87. After prop- SEC. 249.] PROCEEDINGS TO CONDEMN. 935 before his damages were actually assessed and paid or offered to be paid to him ; and if such is the construction of the law, whether erty has teen taken for - public use, a statute repealing the statute under which proceedings to determine the compensa> tion were to be had, and declaring such proceedings void, is unconstitutional. The fact that the proposed public use was abandoned, and the property has been ' re- linquished again to the owners, does not affect their vested right to the obmpensa- tion ; though, perhaps, it might have been competent for the legislature, in such a case, to direct a reassessment of the com- pensation. People V. Supervisors of West- chester, i Barb. (N. Y.) 64. The charter of a railroad company provided that dam- ages for land should be assessed- by a sher- iff's jury, whose inquisition should be confirmed by the county court, if no cause to the contrary should be shown, and that the valuation so assessed, when paid or tendered to the owner of the land, should entitle the company to the estate and in- terest therein as fully as if it had been conveyed to them by the owner. It was held that before payment or tender by the company of damages so assessed, the com- pany were not bound, and could refuse to take the land at th-e assessment ; and hence an act of the legislature passed after the county court had confirmed an assessment, but before tender of the amount, directing the court to set aside the inquisition and order a new one, was not unconstitutional, as impairing the obligation of a contract. Baltimore & Susquehanna R. B. Co. v. Nesbit, 10 How.- (U. S.) 395. Under a - constitutional provision "that no 'person's property shall be taken or applied to pub- lic use Vfithout the consent of the legisla- ture, and without a just compensation first made therefor," an offer of compensation is a condition precedent to the seizure 'of the land ; and; therefore, a provision in the charter of a railroad corporation au- thorizing the company to take the land of individuals, without providing for such previous compensation, is void. Thompson V. Grand Gulf E. E., &o. Co.,5 Miss. 240. And the title to land appropriated, against the consent of the owner, by a company, under their act of incorporation, for the purposes of its works, does not vest in the corporation until compensation is made or adequate security is given therefor. Bor- ough of Easton's Appeal, 47 Pa. St. 255 ; Carr v. Georgia R. R. & Banking Co., 4 Ga. 524 ; Milwaukee & Mississippi E. E." Co. V. Eble, 4 Ghand. (Wis.) 12 ; Rams- den V. Manchester, &c. Ry.,-5 Eng. Ry. Cas. 552 ; Bloodgood v. M. & H. E. E. Co.,' 14' Wend. (N. Y.) 51 ; 18 id. 59. Where the charter of the company provides that after the appraisal of land for their use, "up(m the payment of the same" or de-' posit (as the case may be), the company shall be deemed to be seised and possessed of all such lands, they must pay or deposit the money before any such right accrues. The payment or deposit of the money awarded is a condition precedent to the right of the company to enter upon the land for the purposes of construction, and without compliance with it, they may be enjoined by a court of equity, or prose- cuted in trespass at law for so doing. Th^ right of the land-owner to the damages' awarded is a correlative right to that of the company to the land. If the company have no vested right to the land, the land- owner has none to the price to be paid.' Stacey «. Vermont Central E. E. Co., 27 Vt. 39. If the owner of land through , which a company wishes to run a railroad agrees to refer to arbitrators the question of damages to be paid by the company for the right of way, and there is no express agreement that time shall be given for the . payment of the damages awarded, they must be paid before the right of way can vest in the company. Stewart v. Ray- mond E. B. Co., 15 Miss. 568. Eailroad companies in New York have no right to enter upon a turnpike or plank -road with- out the consent of the owners, except upon the condition of first paying the damages sustained by the turnpike or plank-road company, after the same shall have been ascertainect under the statute. Ellicott- jVille, &o. Plank-Road Co. v. Buffalo, &c. R. E. Co., 20 Barb. (N. Y.) 644. Under the general railroad law of Missouri, no entry for the purpose of constructing a railroad upon land taken under the right of eminent domain can be justified until 936 EMINENT DOMAIN. [chap. XIV. such a power is authorized by the Constitution. In an early case ^ this court decided that where private property was taken for puhlia use it was not necessary that the amount of the compensation should be actually ascertained and paid before such property was appropri- ated to the public use; that it was sufficient if a certain and ade- •quate remedy was provided by which the iridividual could obtain such compensation without any unreasonable delay. This decision has been followed by the courts of several of our sister States. To this extent the opinion of Chancellor Kent ^ must be considered as the settled construction of the constitutional provision on this subject, at least in this State. I cannot, however, agree with my learned predecessor in his subsequent reasoning in that case, upon which he Co., i "S. 3. Eq. 47 ; Mercer v. Williams, Walk. Ch. (Mich.) 85. Where a charter requires that before taking and appropri- ating lands the company shall pay or tender payment of all damages to the own- ers of the lands to be taken, unless the owners consent thereto,, if the company enter upon lands in violation of this pro- vision, an injunction will issue to restrain them. Eoss ii. Elizabethtown & Somer- ville E. E. Co., i TS. J. Eq. 422. Under the constitution of Maryland, it is held to be sufficient ground for an injunction to prevent a company from entering on land, that they have not paid or secured the damages. And an averment in the bill of irreparable injury is not necessary. Western Maryland E. E. Co. v. Owings^. 15 Md. 199. And in Mississippi, where a railroad company neglects to pay a land- owner the damages awarded him for the right of way through his land, and he is exposed to the transit of the cars of the company over his land for an indefinite period, with but little prospect of com- pensation, an injunction will lie to restrain the further use of the land. Stewart i>. Raymond B. E. Co., 7 S. & M. (Miss.) 568. So an injunction properly lies to prevent a corporation from appropriating private property for a turnpike, before just compensation is assessed and tendered. Sidenar v. Norristown, Hope, & St. Louis Turnpike Co., 23 Ind. 623. ' Rogers v. Bradshaw, 20 Johns. (N. Y.) 735. * In the case of Rogers v. Bradshaw. the compensation has been actually paid. But the legislature may authorize the entry upon land without compensation, for the purpose of making the preliminary examinations and sui-veys before the loca- tion of the road. Walther v. Warner, 25 Mo. 277. Upon payment of the compen- sation assessed by commissioners, and tak- ing possession afterward, the title of the company is perfected, as against the party to the proceedings. Bath River Naviga- tion Co. V. Willis, 2 Eng. By. Cas. 7. Where a corporation has pursued the course prescribed by the statute to obtain land, the title of the company to it is per- fect, though the proprietor of the land ob- BtinUtely refuses to accept the money awarded. Montgomery, &c. R. R. Co. v. Walton, 14 Ala, 207. A corporation ac- quiring lands by a statutory proceeding, for its corporate uses, derives its title from the statute, and not from the judgment of the court ; and the court in the absence of an express authority cannot give it pos- session by process. If the owner forcibly prevents the company from taking posses- sion, the remedy is by action. Niagara Falls & Lake Ontario R. R. Co. v. Hotch- kiss, 16 Barb. (N. Y.) 270. And if the former owner threatens resistance, he may be restrained by injunction. Montgomery E. E. Co. 0. Walton, 14 Ala. 207. Where a company, under color of law, enter upon land for the purpose of constructing their works, without having complied with the requirements relative to such entry, an injunction will be granted to restrain them. Browning v. Camden & Woodbury E. R. SEC. 249.] PEOCEEDINGS TO CONDEMN. 937 afterwards acted,^ that it is not necessary to the validity of a stat- ute authorizing private property to be taken for the public use that of a turnpike road for the purposes of a passenger rail\yay is held not to be a new and distinct servitude, entitling the own- ers of land along the line of such turnpike, who have already been compensated for the condemnation of their property, to fresh compensation. The construction of a railroad track upon a portion of the bed of a turnpike road, in such >• way as to "leave abundant room for the vehicles of travellers who do not use the railroad, is not a new use, but only a modification of the old one. And an alteration in the grade of the turnpike road, so as to permit the laying of a railroad track thereon, does not entitle the owners of land abutting-ion such road to compensation for damages resulting from such alteration, when dam- ages were awardedand paid to them at the time the turnpike was first laid out and graded, and the alteration of grade is within the limitations of the original charter of the turnpike company. Peddi- cord V. Baltimore, &c. R.R. Co., 34 Md. 463, Where lands taken by a canal com- pany for the use of their canal, for which taking the owner had damages, were after- wards, under authority of an act of the legislature, transferred to a railroad com- pany, for the use of its road, and the owner claimed damages as for a second taking by the railroad company, on the ground that by the abandonment of the canal the lands had reverted to him, dis- encumbered of any easement, it was held that he could not recover the full value, but only compensation for such additional burdens and inconveniences, not common to the, general public, as accrued to him and his entire tract on which the easement was imposed, by reason of the change of uses to which the lands appropriated had been subjected. The easement in the land, appropriated by the canal company, was regarded when taken as a perpetual ease- ment ; it was so looked upon by both par- ties ; courts and juries awarded compen- sation to the owner on this basis ; and he could not claim, with any semblance' of justice, to be paid over again for the same thing. The general purposes to which the easement was applied by both 1 In the case of Jerome v. Ross, 7 Johns. Oh. (N. Y.) 344. Full compensa- tion must ])e first made in money, or se- cured by a deposit of money, before any right of way can be appropriated to the use of a coi-poration. St. Joseph, &c. R. R. Co. V. Callendar; 13 Kan. 496 ; Chesapeake, &a. R. R. Co. v. Patton, 6 W. Va. 147. And it is held in New York that the general railroad law cannot be con- strued as purporting to authorize a railroad company to enter upon, and use and oc- cupy, the land of an individual, for the purpose of constructing its road, or to take and appropriate the timber thereon against the consent of the owner, before having ascertained the compensation to which such owner is entitled under the ConsUiution, and the payment thereof. And no such right can be conferred upon a railroad company. Blodgett v. Utica, &c. R. R. Co., 64 Barb. (N. Y.) 580.. A tenant for life of land taken by a railroad is entitled to compensation therefor, as wpU as a trustee of the fee in remainder. Passmore v. Philadelphia, &c. R. E. Co., 9^Phila. (Pennj) S79. The legislature may grant to a railroad company the right to construct a street railroad in a public street, without providing for compensation to the owners of lots abutting on such street, even though they may own the fee to the soil of the street itself. Carson v. Central E. Co., 35 Cal. 325. But where an ordinary commercial railroad operated by steam is constructed in a street, the rule is different since such a railway con- stitutes an additional burden upon his land. An^, Chapter XIII. ; Stetson v. Chicago, &c. E. Co., 75 111. 74 ; Cox v. Louisville, &c. E. Co., 48 Ind. 178 ; Gray v. St. Paul, &c. R. Co., 13 Minn. 315. Although one railroad track has been laid through a street, and the owners of property abutting on the street have received compensation for damages, the location of another rail- road in the same street may inflict ad- ditional damages, for which the owners of such property will be entitled to com- pensation. Southern Pacific R. Co. v. Keed, 41 Cal. 25S. The use of a portion VOL. II. — 9 938 EMINENT DOMAIN. [CHAP. XIV. a remedy for obtaining compensation by the owner should be pro- vided. On the contrary, I hold that before companies are the same, — the purposes of a public way, to facilitate the transporta- tion of persons and property. In this case the entire tract of land had been cut asunder by the canal company in the con- struction of its canal ; and the railroad company afterwards, in the construction of its railroad, threw up embankments and excavated cuts across a common public highway, skirting the tract, and consti-- tuting the only convenient means of access between the parcels into which the tract had been severed. It was held that the increased inconvenience and danger of ac- cess thus occasioned between the two parts of the tract were peculiar to the owner -of the tract in the, use of his property, — not common to the public at large, — within the meaning of the rule above stated ; and for this increase of inconvenience and danger, the owner was entitled to com- pensation from the railroad company. Hatch V. Cincinnati, &c. R. R. Co., 18 Ohio St. 92.* Where a company which had made a canal through one's land after- wards constructed a railroad over his land and abandoned the canal, the fact that the canal was a cheap and sufficient means of conveying his products was held to be material in the assessment of compensa- tion for the construction of the railroad, and that the amount of the compensation received by him for the construction of the canal was not material.' Pennsylva- nia, &o. R. R. Co. -d. Bunnell, 81 Penn. St. 414. One railroad company cannot appropriate for the construction of its road, without compensation, the franchises or . property of another. The fact that prop- erty has been taken for a particular public use does not make it public property for all purposes ; and the property rights of a railroad company, in its right of way, are protected by the same restrictions against appropriation by any other railroad com- pany, for railroad purposes or other public use, as is afforded in the case "of, the pri- vate property of an individual. Grand Eapids, &c. R. R. Co. -o. Grand Rapids, &e. R. R. Co., 35 Mich. 265 ; Cincinnati, &c. R. R. Co. V. Danville, &c. R. R. Co., 75 111. 113. A railroad company which the legislature can has acquired the right to construct its road through a high embankment of an- other, and on a grade many feet — in this case twenty feet — below the track of the other company, is under no obligation to erect or maintain a bridge to support the track of the other company. Hence the cost of the erection and maintenance of such ■a. bridge is properly included in the as- sessment of damages for the*right of way-; and such damages may include the loss and inconvenience necessarily incidental to the construction and keeping in repair of aU wprks requisite to a secure condi- tion of the track. Chicago, &c. R. R. Co. V. Springfield, &c. R. R. . Co., 67 111. 142. A railroad company, across whose road another railroad or a highway is laid out many feet above such railroad, — in this case twenty feet, — is not entitled to damages for the interruption and incon- venience occasioned to its business, nor from the increased liability to accidents, nor for increased expense for ringing the bell, or maintaining a flag-man, or other safeguards ordered by the county commis- sioners, — as here, by reason of the abnt- ments of tlie new road obstructing the view. Massachusetts, &c. K. R. Co. v. Boston, &c. R. R. Co., 121 Mass. 124. Under a statute authorising one railroad company to take for a passenger station land occupied by another railroad com- pany, and providing that all general laws relating to the taking of land for railroad purposes should govern the proceedings, if the latter company is deprived of part of its business by such use of the land taken, compensation must be made for the loss. Eastern R. R. Co. v. Boston, '&c. R. R., Ill Mass. 125. Occupancy by a railroad pending an appeal from the assessment of damages for right of way is not a tak- ing of private property for public use vrithout compensation. Peterson v. Fer- reby, 30 Iowa, 827. But a statute which permits a court or judge, pending pro- ceedings for the condemnation of land for the use of a railroad company, to make an order allowing the company to enter into possession and use the land sought to be condemned during the pendency of the SEC. 249.] PEOCKBIHHGS TO CONDEMN. 989 authorize the agents of the State and others to enter lipon and oc- cupy, or destroy or materially injure the private property of an indi- proceedings, without providing compensa- "tion for the use and waste committed if the proceedings finally fail, is unconstitu- tional. Davis V. San Lorenzo R. R. Co., 47 Cal. 517 ; California Pacific R. R. Co. 1). Central Pacific R. R. Co., id. 528. Where ». railroad company pending pro- ceedings for condemnation enters on land and constructs its road across the laud in such manner that the road is imbedded in the soil and becomes a part of the realty, and subsequently the proceedings are dis- missed and itew proceedings commenced for the condemnation of the same land, the owner is not entitled to have the value of the ties and iron constituting the track included in his damages upon the final condemnation. California, &*. R. R. Co. r. Armstrong, 46 Cal. 85. In order to secure the land-owner in his constitu- tional right, and at the same time to spare the company unnecessary delay, the court may permit the company to tate posses- sion of the land on their paying the land- owner so much of the compensation as is undisputed, and the costs, and paying into court an amount sufiicient to cover the disputed claim, so as to secure what may be adjudged to him by the court of law. Metier v. Easton, &c. R. R. Co., 25 N. J. Eq. 214. Be. Hewitt, id. 210. An order which, instead of directing the compensation to be paid to the party claiming to own the land, orders that it be deposited in bank, subject to the order of the court, is not on that account repug- nant to the constitutional prohibition of ■ taking private property for public ■ use without just compensation. . The money when deposited becomes in law the prop- erty of the parties entitled to the com- pensation, and the fund is subject to the same claims to which the land was before being'taken. Matte* of N. Y., &c. R. R. , Co., 60 N. Y. 116. Where a railroad com- pany tendered a bond with sureties to a land-owner, who refused it, and the bond was afterwards appvovedj it was held that under a constitutional requirement to "give adequate security therefor" before such ])roperty shall be taken, trespass would lie against the ofiicers, contractor, etc., en- tering on the land before such approval. Dimmick v. Broadhead, 75 Penn. St. 464. A railway company cannot avail itself of the power of entering on land before pur- chase, conferred by the lands clauses con- solidation act of 1845, unless there is an urgent necessity for immediate entry. An entry subsequent to the companies act, 1867, cannot be made upon a previous valuation under the lands clauses act, 1845. Therefore, where a railway company had valued the land only under § 85 in 1865, and had entered after August 20, 1867, on depositing the amount of valuation, it was held that the entry was in'egulat,, and injunction granted restraining the com- pany from continuing in posse'ssion Of the land until the proper deposit had been made. Field u Carnarvon, &c. Ry. Co., L. R. 5 Eq. 190. In proceedings under the Missouri statutes to acquire lands for the use of a railroad company, no title to the lands will pass unless it appears af- firmatively from the record that the owner refused to relinquish his right ai way to the company. Ells u. Pacific R. R., 51 Mo. 200. 'Compare Anayle ■». M. K. & T; R. E. Co., 63 Mo. 465. But the pro- vision of the general railroad act of New York, making it a prerequisite to proceed- ings ire'inmtvm to acquire title to lands, that' the company shall be "unable to agree for the purchase," does not mean an impossibility to purchase at any price, however large, but that the owner must be either unwilling to sell at all, or only willing to sell at a price which, in the judgment of the agents of the coi-poration is excessive. Matter of Prospect Park, Sx. \R, R. Co., 67 N. Y. 371.' In an English case, a railway company; after the com- pulsory powers of their original act had expired, and the railway was open to traf- fic, obtained another act enabling them to widen their line and enlarge their sta- tions, and to take additional pieces of land. It was held that under the circum- stances the company could not proceed to take a piece of land subject to the compul- sory powers of both acts under a notice to treat given under their original act. Rich- mond V. North London Ry. Co., L. R. 3 940 EMINENT DOMAIN. [CHAP. XIV. vidual, except in cases of actual necessity which will not admit of any delay, an adequate and certain remedy must be provided whereby the owner of such property may compel the payment of his damages, or compensation; and that he is not bound* to trust to the justice of the government to make provision for such compensation by future legislation. / do not mean to he understood tJiat the legislature may not authorize a mere entry upon the land of another for the purpose of examination, or of making preliminary surveys, etc., which would other- wise he a technical trespass, hut no real injury to the owner of the land, although no previous provision was made hy law to compensate the individual for his property if it should afterwards he taken for the public use. But it certainly was not the intention of the framers of the Constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to com- pel him to trust to the future justice of the legislature to provide him a compensation therefor. The compensation must he either ascer- tained and paid to him hefore his property is thus appropriated, or an appropriate remedy must be provided arid upon an adequate fund ; wherry hi may obtain such compensation through the medium of the courts of justice, if those whose duty it is to make such compensation Ch. App. 679. It is no answer to an ac- offered, it was held that the offer was too tion against a railway company for not late, and that the claimant was entitled to issuing their warrant under § 39 of the costs under g 34. Re Gray, L. R. X Q. B. land's clauses act, 1845, for the assessment J). 696. Notice to an owner residing on of compensation for land which they have the lands sought to he condemned, of the given notice of their intention to purchase proceedings of commissioners of assess- that the undertaking was intended to he ment, is essential. Lohman v. St. Paul, carried into effect hy means of a certain &c. R. R. Co.. 18 Minn. 174. Where the capital, and that the whole amount has charter of a railway company required not been suhscrihed as required by § 16 ; notice by publication to the owner or oc- the notice to treat not, necessarily, being cupier, or unknown owners of land sought an exercise of the powers of the act in re- to be condemned, of the application to lation to the compulsory taking of land, appoint commissioners, and such notice Guest. V. Poole, &c. Ey. Co., L. R. 5 C. was published as to one who had held a P. 553. A company empowered to take life-estate only, but who was dead, not land for its undertaking gave to the naming the remainderman, it was held owner notice to treat under 8 Vict. ch. 18, that the proceedings were not binding and he gave notice under § 23 of his de- upon the remainderman. Chicago, &c. sire to have the compensation settled by R. R. Co. v. Smith* 78 111. 96. All the arbitration, naming his arbitrator ; and tenants in common of land sought to be the company named its arbitrator. The condemned for railroad purposes must be arbitrators appointed an umpire, and on before the court. It is not competent to two occasions enlarged the time for mak- proceed separately against the owners of ing their award. The company after this an undivided interest, while another un- made an offer which was not accepted ; divided interest remains outstanding, and the arbitration proceeded. The um- Grand Rapids R. R. Co. v. Alley, 34 pire having awarded a less sum than that Mich. 16. SEC. 249.] PEOCEBDINGS TO CONDEMN. 941 refuse to do' so} In the ordinary case of lands taken for the making of public highways, or for the use of the State canal, such a remedy is provided ; and if the town, county, or State of&cers refuse to do their duty in ascertaining, raising, or paying such compensation in the mode prescribed by law, the owner of the property has a remedy by mandamus to compel them to perform their duty. The public purse, or the property of the town or county upon which the assess- ment is to be made, may justly be considered an adequate fund.^ He has no such remedy, however, against the legislature to compel the passage of the necessary laws to ascertain the amount of com- pensation he is to receive, or the fund out of which he is to be paid. In the case under considciration, if this company were authorized to take possession of the plaintiff's property and complete the construc- tion of their road before his damages were assessed and paid, or offered to. be paid to him, he might have been wholly without re- dress, as he has no power to compel the assessment of damages, and no adequate fund was pj-ovided for the payment of the damages when ascertained. The citizen whose property is thus taken from him without his consent is not bound to trust to the solvency of an ^ Simms v. Memphis, &c. E. R. Co., 12 Heisk. (Tenn.) 621 ; Wagner v. New York, Chicago, &o. R. R. Co., 38 Ohio St. 32 ; Bexford v. Knight, 11 N. Y. 308 ; Chapman v. Gates, 54 N. Y. 132 ; Hatch V. Vermont Central R. R. Co., 25 Vt. 9 ; White V. Nashville, &o. R. R. Co., 7 Heisk. (Tenn.) 618 ; Hauckins v. Law- rence, 8 Blaokf. (Ind.) 266 ; Fox v. West- em Pacific R. R. Co., 31 Cal. 538 ; Lehigh Valley R. R. Co. v. McFarlan, 31 N. J. Eq. 706 ; Johnson & Joliat R. R. Co., 23 111. 202 ; Jeffersonville, &c. R. R. Co. v. Dougherty, 40 Ind. 33 ; New Albany, &c. R. R. Co. 1). Connelly, 7 id. 32. In Ohio it is held that therg must be a verdict and a judgment conflrtiiing it, and a deposit of the amount, before the company is enti- tled to enter, except for temporary pur- poses. Wagner v. New York, Chicago, &o. R. R. Co., 38 Ohio St. 32. In Kan- sas (Pryzbylowicz v. Missouri River R. R. Co., 17 Fed. Rep. 492), Georgia (Cham- btos V. Cincinnati, &c. R. R. Co., 10 Am. & Eng. R. E. Cas. 376), and Mississippi (Williams v. New Orleans, Mobile, &c. R. R. Co., 60 Miss. 689), prepayment is held to be essential. ^ Compensation need not precede the actual appropriation of lands for a public use by the State, or by a municipal cor- poration by State authority. It is suffi- cient if an adequate remedy is provided, , which the party may resort to on his own motion to recover compensation. In this respect there is a distinction between a taking by a public municipal corporation and by an individual or private corpora- tion. Loweree u. Newark, 38 N. J. L. 151. Where the power is conferred on a State, county, or town, these corporate bodies will be presumed respoilsible for those damages ; but in case of an individ- ual or a corporation, if the damages be not paid before the taking, provision should be made not only for an assessment and collection thereof, but also for some defi- nite and certain fund for the payment thereof. Ash v. Cummihgs, 60 N. H. 591. But in Mississippi it is held that for county authorities to open a public road across private property without first paying the owner his damage, is unlawful. Cameron v. Supervisors of Washington, 47 Miss. 264. 942 EMINENT DOMAIN. [CHAP. XIV. individual, or even of an incorporated company, for corporations as well as individuals are sometimes unable to pay all their just debts ; especially those corporations which are authorized to incur heavy re- sponsibilities in anticipation of the paymept of their capital by the subscribers for the stock ; and if the true construction of this charter was such as is contended for by the defendants' counsel, I should hold that the provision which authorized the appropriation of the plaintiff's property to the use of the corporation before the damages had been ascertained and paid, was unconstitutional and void. I cannot, however, agree with the learned judge who delivered the opinion of the Supreme Court in this case, that such is the fair and legitimate construction and meaning of the defendants' charter. It is a primary rule in the construction of statutes 'in those countries where the limits of the legislative power are restricted by the provi- sions of a written constitution, to endeavor, if possible, to, interpret the language of the legislature in such a manner as to make it consistent with the constitution or fundamental law. Applying that principle to the statute under consideration, and having ascertained that it would be inconsistent with the fundam.ental law of the State to authorize the defendants to take possession of the lands of an individual without having made an adequate and certain provision for the recovery of the damages which he would necessarily sustain hy such permanent occupation of his property for the purposes of the road} there appears 1 In Cushman v. Smith, Zi Me. 247, as well as paid subsequently. This course Sheplet, C. J., said : " There has been a of proceeding existed, so far as is known, serious difference of opinion respecting the without complaint long before the Kevolu- requirements and construction of those tion which cast off the British domin- constitutional provisions which declare in ions ; and of course was well known to the same or similar terms that 'priyate the framers of the Constitution which property shall not be taken for public first contained ^his prohibitory clause for u.ies without just compensation.' How the protection of private property. Was far legislation may proceed to authorize it the intention to interrapt such course acts to be done without first making or of proceeding and to provide a remedy for tendering compensation, and where it be- a grievance already experienced, or 6nly comes arrested by the provision, has been to prevent private property from, being considered by many of the ablest men and taken from the owner and permanently most distinguished jurists of the country, appropriated to public use without rom- ... It is believed to have been the long- pensation ? Constitutional provisions are established course of proceeding, in this part often and legitimately explained by con- of the country at least, to authorize the ex- sidering the actual state of facts at the elusive occupation of land required for such time of their adoption. Thus, the provi- liublic uses as the laying out of highways sion in the Constitution of the United and streets, by making provision by law States for the regulation of commerce is for compensation to the owner, to be sub- explained to include navigation by refer- sequently paid, and in many cases author- ence to the state of facts existing at the izing the damages to be finally ascertained time. By these or other considerations SEC. 249.] ;d\ PROCEEDINGS TO CONDEMN. 948 to be no difficulty in giving such a ' construction to this statute as will be consistent with the Constitution and also with the many minds appear to have been led to . the conclusion that private property might be absolutely taken and permanently ap- propriated to public use without compen- sation being first made, when provision was made by law for compensation to be / subsequently made from the treasury of the State, or of a county, city,' or town. Does experience teach that the owner, in such cases, will always be certain to ob- tain compensation ? History informs us that kingdoms and States have not always «paid their just debts in full, that they have often paid them only in promises which would not command gold or silver without a large discount. When the pri- vate property of citizens residing in a county, city, or town may be taken to pay the debts of the corporation, there may be reason to expect that its debts will -be certainly paid. But the law making pri- vate property liable to be taken for pay- ment of the debts of such corporations may at any time 'be repealed or altered ; and the corporation in its corporate capa- ■ city may not have property from which payment can be obtained. Is the dis- tinction attempted to be made between taking private property without first mak- ing compensation, when provision is made for payment by a State, county, city, or town, and when it is made for payment by a private corporation, a sound one ? Can that be a correct construction of the provision which would authorize legisla- tion by which the owner of an estate might be deprived of it without being first paid, whenever in the judgment of some court or tiibunal it might be mor- ally certain that he could afterwards ob- tain compensation, and which would not authorize it whenever in the judgment of such court or tribunal it was not so cer- tain that he could obtain it ? That would inake the title pass from the owner to the public use, not upon payment of com- pensation, but upon the opinion of cer- tain official persons that a fund or other means had been provided from which he might obtain payment. If such be a cor- rect construction, it would follow that the ■ title to private property may be made to pass from the owner to a private corpora- tion for public use when that corporation, should be found to possess the means or to furnish security which would render it as certain that compensation could be suljsequently obtained from it as from the treasury of a State, county, city, or town. These and other considerations present themselves as serious objections to a con- struction which would permit an owner of property to be deprived of it without compensation actually paid or tendered to him, whether it be taken for public use by a State, county, city, town, or private corporation. If such a construction be in- admissible, as well as one which would prevent an exclusive ,occupation of a tem- porary character without payment of com- pensation, the 'inquiry is suggested, whether by a correct construction such results may not he avoided. This provi- sion of the Constitution was evidently not intended to prevent the exercise of legisla- tive power to prescribe the course of pro- ceeding to be pursued to take private prop- erty and appropriate it to public use ; nor to prfevent-its exercise to detennine the manner in which the value of such prop- erty should be ascertained, and payment made or tendered. The legislative power is left entirely free from embarrassment in the selection and arrangement of the JDneasures to be, adopted to take private property and,_appropriate it to public use, and to cause a just compensation to be made therefor. The provision was not in- troduced or intended to prevent legislation authorizing acts to be done which, might be more or less injurious to private prop- erty not taken for public use. It is not unusual to find that private property has been greatly injured by public improve- ments, when there has been no attempt to take it for public use. The records of judicial proceedings show that private property in railroads, turnpike roads, toll- . bridges, and ferry -ways has been often greatly injured, and sometimes quite de- stroyed by acts authorized by legislation, which, according to judicial decisions, did not violate any provision of the Coiistitu- tion. Private property is often injured by 944 EMINENT DOMAIN. [chap. XIV. probable intention of the legislature. This may be done effectually by considering what is very inartificiaUy appended as a proviso to mote the public good. The claim upon the justice of the State for compensation might be perfect, while compensation would hot be secured by any provision of the Constitution. If this provision of the Constitution does not prevent enact- ments authorizing an exclusive possession of land owned by an individual for a tem- porary purpose without compensation, 'when there is no attempt to appropriate it to public use, will it operate to prevent an exclusive occupation of it temporarily as an incipient proceeding to the acquisi- tion of a title to it or to an easement in it 1 Will it prohibit legislation authoriz- ing acts to be done when the intention is, by them and by other means to be adopted, to secure finally a title to the land or to an easement in it for public use, and allow the same acts to be done upon the same land when done without any such intention ? Was it the design to make the intention with which the act was per- formed the criterion to determine whether it could or could not be authorized by the legislative department ? This leads to a further inquiry to ascertain the sense in which the word, ' taken ' was used in the Constitution. That word is used in a variety of senses, and to communicate ideas quite different., Its sense «9 used in a particular case is to be ascertained by the connection in which it is used, and from the context, the whole being applied to the state of facts respecting which it was used. It cannot well be denied, and it is generally admitted, to have been used in constitutions containing this clause to require compensation to be made for pri- vate property appropriated to public use by the exercise on the part of the govern- ment of its superioi^ title to all property required by the necessities of the people to promote their common welfare. This appears to have been denominated the right of eminent domain, of supereminent dominion, of transcendental propriety. These terms are of importance only todis- close the idea presented by them, that the right to ajipropriate private property to public use rests upon the position that the government or sovereignty claims it by the construction and grading of highways and railways, when no attempt has been made to change its character from private to public property. The oases of Day v. Stetson, 8 Me. 365 ; Callender v. Marsh, 1 Pick. (Mass.) 418 ; Canal Appraisers v. The People, 17 Wend. (N. Y.) 571 ; and Susquehanna Canal Co. v. Wright, 9 W. & S. (Penn.) 9, present examples of it. The provision was not designed, and it cannot operate to prevent legislation which should authorize acts operating directly and in- juriously as well as indirectly upon pri- vate property when no attempt is made to appropriate to public use. An instance of this kind of legislative action will be found in the case of the Com. v. Tewks- bury, 11 Met. (Mass.) 55, where a person was held indictable for the removal of gravel from his own land contrary to a statute provision, which did not assume to appropriate to public use or to make compensation for it. The design appears to have been simply to declare that pri- vate property shall not be changed to pub- lic property, or transferred from the owner to others for public use without compen- sation ; to prevent the personal property of individuals from being consumed or destroyed for public use without compen- sation, — not to protect such property from all injury by the construction of public improvements ; not to prevent its tempor- ary possession or use, without a destruc- tion of it or a change of its character. It was designed also to prevent the owner of real estate from being deprived of it, or of an easement in it, and to prevent any permanent change of its character and use without compensation ; while it was not designed to prevent legislation which might authorize acts upon it which would by the common law be denominated tres- ])a.sses, including an exclusive possession for a temporary purpose, where there was no attempt to appropriate it to public use. Such acts of legislation might be very un- just, and it may be presumed that no legislative body would make such enact- ments without making provision for the compensation of injuries to private prop- erty occasioned by acts designed to pro- SEC. 249.] PROCEEDINGS TO CONDEMN. 946 the seventh section, as in the nature of a condition precedent, not only to the acquisition of the legal title to the land, but also to the right virtue of a title superior to the title of the individual, and that by its exercise the in- dividual and inferior title becomes wholly or in part extinguished, — extinguished to the extent ;to which the superior title is exercised. To take the real estate of an individual for public use is to deprive him of his title to^ it, or of some part of his title, so that the entire dominion over it no longer remains with him. He can no longer convey the entire title and domin- ion. The exclusive occupation of that estate temporarily as an initiatory proceed- ing to an acquisition of a title to it, or to an easement in it, cannot amount to a talcing of it in that sense. The title of the owner is thereby in no degree extin- guished. He can convey that title wTiile thus exclusively occupied as he could have done before. Should, he do so by a con- veyance containing a covenant that it was free of all encumbrances, that covenant would not make him liable for such an exclusive occupation, unless it be admitted that a title to the land or to an easement in it can be acquired without making compensation, and this is denied. A con- struction of the provision which would permit legislation authorizing private prop- erty to be exclusively occupied without first making compensation as an incipient proceeding to the acquisition of a title to it or to an easement in it, and which would not authorize the title of the owner to be extinguished or impaired without con- previous compensation,' and pi'ohibit it from authorizing those of a little more or much more injurious character, which do not in any degree impair or affect the title of the owner ? It was not the intention to make the exercise pf-the legislative power depend upon the ex- tent of the injury which the authorized acts might occasion, if the title was not invaded. There are cases in which ah opinion is expressed that all injuries to private property authorized by the legis- lative power can only be authorized by the exercise of the right of eminent domain ; and that a temporary injury or occupa- tion amounts to a taking of the property. If it be admitted that such an injury or occupation of the property amounts to a taking of it, in the sense in which the word ' taken ' is used iu the Constitution, it will follow that measures must be taken to ascertain the damages occasioned there- by, and that compensation must be actu- ally made before it can be so injured or . occupied ; or that the right to do it with- out compensation iirst niade must be ad- mitted, leaving the party injured to the chance of obtaining compensation as he may best be able. If the former alterna- tive be adopted, private property cannot be injured or temporarily occupied, how- ever urgent and immediate may be the public necessity, without waiting for the final completion of all proceedings to as- certain the compensation. And how the pensation may be somewhat novel, but, amount of compensation can be satisfact- it will not be found to be unsupported by pcsitions asserted and maintained in judicial opinions. It is generally admit- ted in them that examinations and sur- veys may be authorized by legislative enactments without a violation of the con- stitutional provision, and without provis- ion for previous compensation. Where is to be found the limit of the legislative power to authorize trespasses of a more ex- tensive and injurious character, which do orily ascertained before the acts occasion-, ing damages have been performed, it is not easy to perceive. If the latter alter- native be adopted, and the right to cause a temporary occupation or injury be ad- mitted before compensation is made, the party injured must depend upon a legisla- tive provision for his compensation, and the prohibitory clause of the Constitution will fail to secure to him, with entire cer- tainty, a oompenssation. In other words. not extinguish or intrench upon the title' it will of itself afford him no protection of the owner ? Does that provision of the against such temporary injury or occupa- Constitution permit the legislative power tion, and would leave him in the position to authorize trespasses not very injurious in which he would be by a construction of to private property, -without providing for that clause which would only protect him 946 EMINENT DOMAIN. [chap. XIV. to enter and take the permanent possession of the land for the use of the corporation. Indeed, such. appears to me to be the more rea- sonable and fair construction of this section, independent of any con- stitutional difficulty in the way of a different construction. For upon the supposition that no injustice was intended by the legis- lature, it can hardly be presumed they meant to authprize the against a permanent appropriation of his property, or an extinguishment or diminu- tion of his title to it. Many of the judicial opinions urgently restrictive of the legislative power assert that the title to land taken, or to an easement in it, can- not be transferred from the owner to others for public use without compensa- tion actually made, — that the acts of pay- ment and of transfer are siraultaneou.s. If this be true it is immaterial, so far as it respects the acquisition of a title to land, or to an easement in it for public use, when compensation is made. It can only be material to insist that compensation shall be made before an exclusive occupa- tion is permitted, to prevent a temporary inconvenience and loss. An attempt has already been made to show that such was not the design of the prohibitory clause. In Bradshaw v. Rogers, 20 Johns. (N. Y.) 103, Spencer, C. J., says, 'It is true that the fee-simple of the land is not vested in the people of the State' until the damages are appraised and paid, but the authority to enter is absolute, and does not depend on the appraisal and pay- ment.' [See also Callender v. Marsh, 1 Pick. (Mass.) 430 ; Hooker v. New Haven, &c. Co., 14 Conn. 146; Bloodgood v. Mohawk, 8ec. R. Co., 18 Wend. (N. Y.) 9; People V. Hayden, 6 Hill (N. Y.), 359 ; Smith V. Helmer, 7 Barb. 416 ; Eubottom V. McClure, 4 Blaekf. (Ind.) 505 ; Thomp- son V. Grand Gulf R. Co., 3 How. (Miss.) 240, all reviewed and quoted from by the court.] In Pittsburg v. Scott, 1 Penn. 309, it was decided that it was not necessary that compensation should be actually as- certained and paid before private property is appropriated to public use ; that it was sufficient that an adequate remedy was provided by which compensation could be obtained without any unreason- able delay. To the construction of the prohibitory clause proiiosed, it may be objected that it will not prevent the exercise of legislative power to authorize the commission of serious injuries upon private property without making provision for compensation. A construction so broad as to prevent this would greatly limit the legislative power, and biing it within a much narrower sphere of action than it was accustomed to claim and ex- ercise without complaint before the consti- tutions containing this clause were framed. Reliance must be placed upon the justice of legislation, and upon the administration of the laws for a recompense for such in- juries, and not upon a provision of the Constitution not designed for such a pur- pose. Another objection to this construc- tion may be that the owner will not be able to recover compensation for the ex- clusive occupation of his land, and for the injuries thereby occasioned, when the pro- ceedings are not so completed and com- pensation made as to transfer any title to land, or to an easement in it for public use. This objection ig believed to be founded upon an incorrect position. If compensation be not made within a reasonable time after the land has been exclusively occupied, the right to continue that occupation will become extinct. It being authorized only as a part of the pro- ceedings permitted for the acquisition of title, when it becomes manifest by an un- reasonable delay that the avowed purpose is not the real one, or that, if real, it has been abandoned, the measures permitted for that purpose will no longer be autlior- ized ; and if the occupation be continued after that time the occupants will be tres- passers, and liable to be prosecuted as _8uch. The damages occasioned before the right of exclusive occujiation became ex- tinct may be recovered by an action of trespass, or by an action on the case, con- taining in the declaration averments that an exclusive oucuimtion was authorized SEC. 249.] PROOBBDINGS TO CONDEMN. 947 company to enter upon the lands of indiyiduals, pull down their buildings, etc., and then take- their own time to get the damages for the purpose of acquiring title for pub- lic use, and that no such proceedings have taken place as would transfer any title within a reasonahle time, with other" suit- able averments. If the occupants should be regarded as trespassers db initio, it would not be, as has been supposed, be- cause they had omitted to make compen- sation, but because they had continued to occupy or commit trespasses ' after it had become manifest that their avbwed was not their real purpase, or after their real purpose had been abandoned. It is not necessary to decide whether such an action , could be maintained, for the distinction between the actions of trespass and case has been abolished in this State. After some difference of opinion, it may now be regarded as settled that enactments which authorize private property to be taken for public use must provide the means or course to be pursued to have compensation made for it. The conclusions to which this discussion leads are : 1. The clause in constitutions which prohibits the tak- ' ing of private property for public use was not designed to operate; and it does not operate, to prohibit the legislative depart- ment from authorizing an exclusive occu- pation of private property temporarily, as ' an incipient proceeding to the acquisition of a title to it, or to an easement in it. 2. It was designed to operate, and it does . operate, to prevent the acquisition of any title tcTland, or to an easement in it, or to a permanent appropriation of it ht^ an owner for public use, without the actual payment or tender of a just compensation for it. 3. That the right to such tem- porary occupation, as an incipient proceed- ing, will become extinct by an unreasonable delay to perfect proceedings, including the actual payment or tender of compen- sation to acquire a title to the land, of of an easement in it. 4. That an action of trespa.ss qua/re clausum may be maintained to recover damages for the continuance of , such occupation, unless compensation, or a tender of it, be made within a reasonable time after the comfnencement of such occupation. ,5. That under such circum- stances an action of trespass, or an action on the case may be maintained to recover damages for all the injuries occasioned by the prior occupation. In this case, as no compensation or tender of it was made to the plaintiff within a reasonable time after his estate was occupied by the corporation, no title to it or to an easement in it has been acquired, and the occupation, al- though legally: commenced, has ceased to be legah As the corporation acquired no title to the land, or to any easement in it, the defendant could acqifire none by his conveyance from that corporation." The charter of a railway company authorizing it to purchase, or take and hold so much of the land of private persons, or other corporations, as may be necessary for the location, construction, and convenient operation of said railway, and to take, remove, and use for the eonstruction and repair of said railway and appurtenances, any earth, gravel,' stone, timber, or other materials on or from fhe land so taken, does not authorize the servants of that cor- poration to go upon lands not taken, under the charter, and in accordance with its provisions, and take materials therefrom for the oonstmction of their road, against the will, and without the consent of the owners of such lands. Parsons v. Howe, 41 Me. 220 . "Where the charter of a rail- way company provided that the company might enter upon any lands contiguous to the railway, or the works connected therewith, and take materials necessary for building or repairing the road ; and providing, in case of disagreement between the owners of the land and the company as to the compensation to be paid, that the amount should be determined by com-_ missiouers, the court held that the com- missioners need not be called out to ap- praise damages xmtil after the materials had been ascertained ; and that this *ras the only practicable mode of proceeding in such case, if they would come to a reason- able and just determination in regard to such damages. And it was admitted such, from necessity, had been the practical con- struction put upon that provision of the charter. Vt. Central E. R. Co. v. Baxter, 22 Vt. 370. In this case the question 948 EMINENT DOMAIN. [CHAP. XIV, appraised and to pay the same, — leaving the individuals injured thereby to seek for some uncertain remedy by action, if the com- pany neglected to get the damages assessed within a reasonable time. " The conclusion at which I have arrived, therefore, is, that the de- fendants' plea is imperfect in not averring that the damages had been regularly assessed and paid before th6 defendants entered upon the plaintiff's land and appropriated it to the use of the road ; and that if they in fact entered and commenced the construction of the road before the damages were actually assessed and paid, the plain- tiff has a technical right to recover in this action for all damages which he really sustained by such unauthorized entry, although these requisites of the statute were afterwards complied with. In that case the defence arising from the subsequent assessment and payment of the damages, can only be pleaded to that part of the declaration which charges a continuance of' the trespass after the damages were assessed and paid as required by the statute. " For these reasons I think the demurrer is weU. taken, and that the judgment of the Supreme Court should be reversed, with liberty to the defendants to amend their plea upon the payment of costs in this court and of the demurrer in the Supreme Court." The clause in constitutions which prohibits, the taking of private property for public use, was not designed to operate, and it does not operate, to prohibit the legislative department from authorizing an exclusive occupation of private property temporarily, as an inci- pient proceeding to the acquisition of a title to it or an easement in it. But it was designed to operate, and it does operate, to prevent the acquisition of any title to land or to an easement in it, or to a permanent appropriation of it from an fewner for public use, without the actual payment or tender of a just compensation for it.^ was not made or considered ty the court, ers and causing their award to be recorded, whether the company itself had any right The payment or deposit of the money to take materials for building its road be- awarded is a condition precedent to the yond the limits of the survey. In Stacey right of the company to enter upon the V. Vt. Central R. E. Co., 27 Vt. 39, it was laffd for the purpose of constructing their held that the Vermont Central Railway road, and without compliance with it they Company, under their charter, acquired may be enjoined in a court of equity, or no title to lands surveyed and designated prosecuted at law in an action of trespass, for the use of their railway, or to any ease- It was also held that, if the company had ment growing out of it, from the fact of no vested right to the land, the owner of their having so surveyed it, or by having the land has none to the damages awarded placed their survey on record, or by hav- him for it. ing the damages appraised by commission- i Cushman v. Smith, 34 Me. 247. SEC. 249.] PROCEEDINGS TO CONDEMN. 949 In most of the States, either payment by the company of the sum Eissessed or a tender of the amount, or security therefor, either by a deposit of money or of a bond with sufficient sureties approved by a certain officer, and in each case the amount to be determined in the manner named in the statute, is made a condition precedent to the rif^ht of the corporation to enter into possession to construct its road ; and an entry for such purpose without the performance of such conditions will render it a trespasser, and its right of temporary occupation ceases.^ Indeed, under such circumstances, unless all the 1 Dimmick u. Broadhead, 75 Penn. St. 464 ; New York Central R. E. Co., in re, 60 N. Y. 116 ; Shute v. Chicago, &c. R. R. Co., 26 111. 436 ; Curtis v. St. Paul, &c. R. E. Co., 21 Minn. 497 ; Bohlman v. Green Bay, &o. R. R. Co!, 30 Wis. 105 ; Frees v. Southern Penn. R. E. Co. , 85 Penn. St. 73 ; Kennedy v. Milwaukee, &c. E. R. Co., 22 id. 681 ; Avery ®. Fox, 1 Abb. (U. S.) 246 ; Fox v. Weatem Pacific E. E. Co., 31 Cal. 538 ; WadhamB. Laekavfanna, &c. R. E. Co., 42 Penn. St. 508 ; Powers V. Bears, 12 Wis. 213 ; Gray v. St. Paul, &c. E. E. Co., 13 Minn. 315 ; Warren v. St. Paul, &c. E. E. Co., 18 Minn. 384 ; Weir V. St. Paul, &c. E. E. Co., 18 Minn. 155 ; Ealeigh, &c. E. E. Co. v. Davis, 2 D. & B. (N. C.) 451. In Chambers v. Cincinnati, &o. E. E. Co., 10 Am. & Eng. E. E. Cas. (6*. ) 377, SpeEb, J., says : " It is a primary requisite in the appropriation of lands for public purposes, that compen- sation shall be made therefor ; and this compensation must be pecuniary in its character because it is in the nature of a payment for the oompulsoiy purchase. Cooley Const. Lim. 699. It airiounts to nothing more than a power to oblige him to sell and convey when the public neces- sities require it. The time when the com- pensation must be made may depend upon the peculiar constitutional provisions of the State. In some of the States by ex- pi'ess constitutional direction compensa- tion must be inade before the property is taken. It is true private property may be entered upon and temf drarily occupied for the purpose of a survey and dther in- cipient proceedings, with a view of deter- mining whether the public needs require the appropriation or not, and if so, what the proper location shall be ; when, how- ever, the land has been viewed, and' it is determined to appropriate it, the question of cpmpensation is to be considered. When private property is sought to be appropriated by a private corporation, act- ing under the authority of the State, it is certainly proper, and it has sometimes been questioned whether it is not absolutely essential even in the absence of constitu- tional provision, that payment be actually made before the owner could be divested of his freehold. Chancellor Kent has expressed, the opinion that compensation and appropria'tion should be concurrent. He says : ' The settled and fundamental doctrine is that govei'hment has no right to take private property for public uses without giving just' compensation, and it seems to be necessarily implied that the indemnity should in cases which will ad- mit of it be previously and equitably ascertained, and ready for reception con- currently in point of time with the actual exercise of the right of eminent domain.' 2 Kent, 339, note. While this is not an in- flexible rule, yet it is so just and reason- able that katutory provisions for taking private property very generally make pay- ment precede or accompany the appropria- tion, and by several of the State Constitu- tions this is expressly required. The Constitution of Florida provides that pri- vate property shall not be taken or applied to public Use, unless just compensation be first made therefor. So likewise are found similar provisions in the Constitutions of Colorado, of Georgia, Iowa, Kansas, Ken- tucky, JIaryland, Minnesota, Mississippi, Missouri, Nevada, Ohio, Pennsylvania. The Constitutions of Indiana and Oregon require compensation to be first made, except when the property is appropriated 950 EMINENT DOMAIN. [chap. XIV. conditions imposed upon the corporation by the statute, are com- plied with, the land-owner is entitled to possession, and may obtain by the State. It would be an unwise and unjust rule to deprive the owner of his property and turn him over to an action at law against a corporation which may or may not prove responsible, and to a judgment of uncertain efficacy. The consequences would be in some cases the party might lose his estate without re- dress, in violation of the inflexible maxim upon which his right is based. The land should either be his or he should be paid for it. Whenever, therefore, the public locates the public work and declares the ap- propriation, the owner becomes absolutely entitled to the compensation. In some of the States it is held, ' If a street is legally established over the land of an in- dividual, he is entitled to demand pay- ment for his damages without waiting for the street to be opened,' — as in Pennsyl- vania, Maryland, Massachusetts, Iowa, Illinois, and New Hampshire. And if a railway line is located across his land and damages are appraised, his right to payment is complete before exclusive entry and occupancy. In the case of Young v. McKensie, 3 Ga. 45, Judge Wabner says : • We do not intend to say that the com- pany could not have entered on the land and made the necessary survey and ex- amination of the premises under the au- thority of the legislature, but we do intend to say that the company had no authority to appropriate the private property of the defendants for the permanent and exclu- sive use of the company, until just, com- pensation has first been made therefor in the manner pointed out by the charter. See also 3 Ga. 333. In the case of Kome V. Perkins, 30 Ga. 15i, this court held : 'The owner of land is entitled to just compensation ■ before it can he taken for public use.' In that case the court hold impliedly that the landholder could have enjoined the corporation from taking his property until compensation made, or he might recover by suit in trespass its value. The remedy by injunction to restrain one who seeks to enter upon and build upon the right of way before compensation paid, is, also recognized by this court in the case of Gammage v. Georgia Southern E. E. Co., 65 Ga. 614. But we need look no further in support of this complainant's right to this injunction against the re- spondents than to our own constitutional prbvision contained in art. i., sec. iii., part i. : 'Private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid.' The framers of this instrument, taught by the sad experience of many whose property had been taken for public purposes, and who in vain have sought redress in the courts, owing to the insolvency of the companies, threw this shield around every property-holder, that no one should take or appropiiate his j)roperty for a public use until just and adequate compensation being 'first paid.' All that the legislature can do is to oblige the owner to alienate his possessions for a reasonable price for -public use, — but then the Constitution interposes its pro- tective shield and afiixes the condition that the owner receive first 'jnst and adequate compensation.' We can see no other con- struction to give- to this clear and plain requirement of the fundamental law. We have neither authority nor desire to emasculate its clear and intelligent mean- ing_ by a construction which would he hostile to its justice and inconsistent with its terms. We have nothing to do with the inconveniences or embaiTassments such a construction may en'tail. It is one of the great bulwarks created for security to property against legislative action, deeply imbedded in this bill of rights, which the aggrandizing spirit of the age is so prone to invade. If the respondent below seeks an appeal to the courts against what he deems to be an unjust and excessive assessment by the appraisers, let him abide until the result is known, pay first the just and adequate compensation fi- nally awarded, and then no constitutional barrier will stand against his entry and occupancy on the lands for the pui-poses' for whieh it was condemned." In Wag- ner V. New York, Chicago, &c. B. R. Co., 38 Ohio St. 32, it was held that in proceedings by a corporation to appropri- ate private property, there must be a SEC. 249.] PKOCEEDIEGS TO CONDEMN. 951 it by an action of ejectment,^ or a court of equity in a proper case will enjoin the corporation from continuing in possession.^ In refer- judgment conflrming the verdict of the jury, before the corporation is entitled, by a deposit of the amount of such verdict, to possession of the property appropriated. An act authorizing telegraph companies to construct their lines upon the right of way of railroad companies, was held to be unconstitutional, in failing to provide any compulsory process, to enforce payment of just compensation for the property taken. Southwestern E. R. Co. v. Southern, &c. Tel. Co., 46 Ga. 43. The legislature cannot con.stitutionally deprive an individual of the advantages of a stream of water in its natural flow over his lands, or create an easement in his land of the right to overflow, — as by letting a cor- poration erect a ^ing-dam causing back flowage, etc.,"— without providing com- pensation for the injury. Trenton Water- Bower Co. V. Eaff, 36 N. J. L. 335. The right to use the water of a stream is prop- erty, as much unier protection of the constitution as is the land on which it flows ; and » provision of a coi'porate charter, giving the corporation power to take such water for- manufacturing pur- poses, without compensation to others who are already using -it for similar pur- poses, is unconstitutional. Hai-ding v. Stainford Water Co., 41 Conn. 87. The right to compensation for injuries inflicted on private property by the appropriation of the street to a public use, — aa a rail- road -^ not contemplated "when it was opened and dedicated as a highway for ordinary travel, is in no wise aflected by the question whether the city authorities did, or did not consent to such appropriation. Southern Pacific E. E. Co. v. Eeed, 41 Cal. 256. Compensation, is only necessary when private property is to be taken. Thus, as the lands lying under navigable' waters \vithin New Jersey belong absolutely to the State, an act of the legislature, author- izing the construction of a ;bridge over a navigable river, gives authority to ap- propriate the lands under water, belong- ing to the State, without compensation. ' When the State authorizes a corporation or an individual to build roads or bridges upon its own property, inasmuch as the duty to be performed is that of the sove- reign delegated to a citizen, the right to proceed without compensation is implied. Pennsylvania E. E. Co. v. New York, &c. E. E. Co., 23 N. J. Eq. 157. So, the legislature may authorize the construction of a public work which will interfere with the enjoyment of a puWic right of navigation, without providing for com- pensation for the injury. Sugar Eefining Co. i;. Mayor, &c. of Jersey City, 26 N. J. Eq. 247. The owner of land, who stands 1 Graham v. Columbus, &o. E. E. Co., 27 Ind. 260 ; Cox v. Louisville, &c. E. R. Co., 48 id. 178 ; Daniels v. Chicago, &o. E. E. Co., 41 Iowa, 53 ; Pearson v. John- son, 54 Miss. 259 ; Levering v. Philadel- phia, &Q. E. E. Co., 8 W. & S. (Penn.) 459 ; St. Joseph, &c. E. R. Co. v. Callen- dar, 13 Kan. 496 ; McClinton v. Pitts- burgh, &o. R. E. Co., 66 Penn. St. 404 ; Wiftnington, &c. E. E. Co. v. High, 89 Penn. St. 282 ;. Chicago, &c. E. E. Co. v. Hopkins, 90 111. 316.; Smith v. Chicago, &o. R. R. Co., 67 id. 191 ; Conger D. Burlington, &c. R. R; Co., 41 Iowa, 419 ; Carpenter®. St. Louis, R. R. Co., 24 JT. Y. 655 ; Harring- ton V. St. Paul, &c. R. R. Co., 17 Minn. 215 ; Halbert v. St. Louis, &c. R. R. Co., 45 Iowa, 23. '^ Evans v. Missouri, '&c. R. R. Co., 64 Mo. 453 ; Browning i). Camden, &c. R. R. Co., 4N. J. Eq. 47 ; Penrice v. Wallis, 37 Miss. 172 ; White v. Nashville, &o. R, R. Co., 7 Heisk. (Tenn.) 618; Morris & Essex R. R. Co. v. Hudson Tunnel R. E. Co., 25 N. J. Eq. 884 ; Sidener v. Non-is- town, &c. T. Co., 23' Ind. 623; Hender- son V. N. Y. Central R. R. Co., 78 N. Y. 423 ; Richards v. Des Moines Valley R. R. Co., 18 Iowa, 259 ; New Central Co. v. George's Creek Coal & Iron Co., 37 Md. 357 ; Diedrich v. Northwestern Union E. R. Co., 33 Wis. 219 ; Norristown, &c. T. Co. V. Burket, 26 Ind. 63 ; Northern Pacific R. R. Co. v. Burlington, &e. E. R. Co., 2 McCrary (U. S. C. C), 203. 952 EMINENT DOMAIN. [chap. XIV. ence to the entry of a railway company to construct its road, it must be remembered that the decision of the question must depend en- tirely upon the provisions of the State constitution and the statute. Because, as previously stated, if the statute provides a sure and. effectual remedy through which the land-owner may recover the damages, it may authorize an entry without the damages being either paid or secured. Thus in Kansas ^ it is held that the legislature, in tendered the compensation assessed, yet by, without bbjection, and sees a public railroad constructed over it, cannot, after the road is completed, or large expendi- tures have been made thereon upon the fait)i of his apparent aoijuiescence, reclaim the' land, or enjoin its use by the railroad company. In such case there can only remain to the owner a right of compensa- tion. Goodin v. Cincinnati, &c. Canal Co., 18 Ohio St. 169. A squatter, one who is merely in possession of land with- out title or interest, cannot recover dam- ages on the taking of the. land for the uses of a railroad company. Eosa v, Mis- souri, &c. R. R. Co., 18 Kan. 124. An attempt to enter upon and take permanent possession of ,land of an individual for public use, without the assent of the oiyner, and without the damages having been first ascertained, and paid or tendered to him, is, or would, if consummated, be in the nature of an irreparable injury, for the prevention of which the writ of injunc- tion constitutei the proper remedy, and should, unless some peculiar reasons be shown for denying it, be issued when applied for in due form by the party whose constitutional rights ar6 thus un- lawfully invaded or threatened to be. Bohlman v. Green Bay, &c. R. R.iCo., 30 Wis. 10,5. As the payment of compensa- tion to the land-owner, or a deposit for him of the amount in money, is a condi- tion precedent, under Kan. Const, art. 12, § 14, to'the appropriation of the property for public use, an injunction lies to re- strain a corporation, public or private, from proceeding to take possession without making such payment or deposit, if there is a probability of irreparable injury. Eidemiller v. Wyandotte City, 2 Dill. (U. S. C. C.) 376. Although a statutory grant of authority to a company to take lands contains a proviso that they shall not take possesBion until they hare paid or if the company has lawfully obtained pos- session; pending an appeal from the assess- ment, a court of equity will not enjoin them from constructing their works on the ground that the question of the amount of compensation is yet in suspense. Cooper V. Chester R. R. Co., 19 N. J. Eq. 199. Where upon the hearing of a rule to show cause why an injunction should not issue to restrain the defendants from building their railroad on the shore of the Passaic river, in which the tide ebbs and flows, in front of the complainant's lands, until compensation should be made in the manner prescribed by law, the complain- ant claimed as shore-owner by adjacency; also under the wharf act of New Jersey, of March 18, 1851, (Nix. Dig. 871), it was held that the injunction should be refused, on the grounds that the right claimed by the complainant was doubtful, and depended upon a question not yet settled by the courts of the State, and that there was no evidence that the com- plainant had not sufficient access to his lands by a road in the rear or on the side. N. J. Chan. 1869; Stevens v. Faterson, &c. R. R. Co., 20 N. J. Eq. 126. Any peculiar benefit to the owner of lands taken for a public improvement, which is derived from such an improvement, in respect of which he may lawfully be com- pelled to contribute towards the costs and expenses, may be taken as part of his com- pensation for lands taken ; and the legis- lature may constitutionally provide that the assessment for benefits may be set off in an action by the owner to recover the assessment for the damages for the taking of lands. 1875, Loweree v. Newark, 38 N. J. L. 151. ' Shearer v. Commissioners, 13 Kan. 145. In Perkins v. Maine Central R. B. Co., 72 Me. 95, it was held that a railroad SEC. 250.] MODE OP ASOEETAINING DAMAGE : NOTICE. 953 providiug for ^he taking of private property for public uses may also prescribe the manner in which compensation therefor shall be made, and, if such manner is free from any unreasonable recLViir^ments, may provide that a failure to seek compensation in that manner shall be deemed an absolute waiver of all claims therefor; And in New Hampshire it is held that such statutes are not unconstitutional, because they do not require an assessment of damages, and payment or tender of the sum assessed, before the entry upon and injury to lands therein authorized, nor provide for a definite and certain fund to secure the payment of compensation, provided the remedy given is effectual and prompt.^ In some of the States the constitution makes payment or tender ef the damages a condition precedent to an entry ,2 and in others the statute makes such provision, when the constitution itself is silent in reference thereto,^ while in other States the courts hold that this is essential even though the consti- tution of the State does not in express terms so provide* In- some of the States, the corporation alone can bring proceedings to have the damages assessed, while in others the remedy is open to both parties, and in some it is provided that if the land-owner does not bring proceedings yithin a certain time his remedy shall be barred, and this limitation is held to be constitutional. Sec. 250. Mode of ascertaiiiing Damage: Notice.' — The legislature may and does provide the mode in which the damage shall be ascertained, h\it it has no power tb assess the damage itself, and as location can never become legal except by statutory period of limitation, will not a deed, a payment of land damages, or operate as a consent to its occupation and preaoription. In tbis case the court held use of the land, that wbile the lapse of six years from the i Orr v. Quimby, 54 N. H. 590. time when an action for laud damages ac- " Hibbs v. Chicago, &c. E. R. Co., 39 crued might, unexplained, constitute a Iowa, 340 ; Pearson v. Johnson, 54 Miss, -waiver of dai^ages, yet, that, where cireum- 259; Doughty ■». Sonlerville, &o. E. R. , stances show that there has been no waiver Co., 7 N. , J. Eq. 51 ; Teick v. Carver in fact, and no title has been aaquired by Coiftity, 11 Minn. 292 ; Aurora, &c. R. R. prescription, a simple lapse of time would Co. v. Miller, 56 Ind. 88. not bar the land-owner's right to bring » McAulay v. Western Vt. R. R. Co., suitagainst the company for an obstruction 33 Vt. 311 ; Marion, &c. R. R. Co. v. which amounts to a continuous trespass. Ward, 9 Ind. 123. although the recovery of damages must be * Patterson v. Chicago, &c. R. R. Co., limited to six years next preceding the date 75 lU. In Jamaica, &c. Plank-Road Co! ■of the writ. See also Eusch d. Milwaukee, ''B.Manhattan Beach R. R. Co., 25 Him &c. R. R. Co., 54 Wis. 136, where it was (N. Y.), 585, it was held that where the held that the mere failure of a land-owner property or franchise of another corpora- to order a railroad company oflF from his . tion^ is condemned, the damages must be land, or to bring his action against it as assessed and paid before possession can be a trespasser until near the end of the taken. ' VOL. II. —10 954 EMINENT DOMAIN, [CHAP. XIV. we have seen, the mode so provided is exclusive of all other reme- dies. A board of commissioners, viewers, appraisers, or some tribu- nal with competent powers is established to assess the damages, from whose decision, usually, an appeal is permitted to some court of general jurisdiction. The tribunal established by the statute may not only view the premises, but also hear evidence upon the question of damage. Being a special tribunal, they have no powers other than those specially conferred upon them by the statute, and any act of theirs in excess of such powers, is void. It is held that a jury trial in cases of this character is not required under the Consti- tution, inasmuch as there are no issues of fact, as to the necessity of taking the land, etc., but only questions relating to the damages for the taking,^ — although in some of the States it is held to be a judi- cial inquiry, and one in which either party is entitled to a jury.^ In any event, the tribunal must be an impartial one, although neither party can object that some of the persons appointed, had an interest favorable to him.' In some of the States provision is made for a sheriff's jury. But it will not be practicable to enter into details upon these matters, as they are purely local and depend upon the statutory provisions of each State. In the bringing of proceedings, the statute requirements must be strictly complied with, and the statutory methods must be pursued. In some of the States, the company only can bring proceedings, and in that case they must be brought within a reasonable time after entry, or it becomes a tres- passer ; while in other States either party may avail itself of the remedy, and in such case, if the period within which the proceed- 1 Lake Erie, &c. R. Co. v. Heath, 9 Ind. Miss. 300. In some cases the statute pro- 558 ; Bruggerman v. True, 25 Minn. 128 ; vides for a, jury, in which case twelve per- Pennsylvania R. Co. v. Lutheran Cong., 63 sons are required. Lamb v. Stone, 4 Ohio Penn. St.'445 ; Bonaparte w. Camden, &o. St. 167 ; Chicago, &c. E. Co. v. Sanford, 23 E. Co., 1 Baldw. (U. S. ) 205 ; Beekman v. Mich. 418 ; but the legislature may provide Saratoga, &c. E. Co., 3 Paige (N. Y.), 45; a less number, and also that a majority Ames V. Lake Superior, &c. E. Co., 21 Minn, shall prevail. Cruger v. Hudson River R. 241; WhitemauB. Wilmington, &c. R. Co., Co., 12 N. Y. 190. 2 Harr. (Del.) 514 ; Houston, &c. R. Co. v. » Strang v. Beloit, &c. R. Co., 16 Wis. Milburn, 34 Tex. 224 ; in re Mt. Washing- 635 ; Powers v. Bears, 12 Wis. 213 ; Ames ton Road, 35 N, H. 134; Buffalo, &o. R. Co. v. Lake Superior, &o. R. Co., 21 Minn. 241; ». Ferris, 26 Tex. 588 ; Raleigh, &c. R. People v. Mich. So. R. Co., 3 Mich. 496. Co. V. Davis, 2 D. & B. (N. C.) 451; Provisions of a railroad charter prescribing Louisiana, &c. Plank R. Co. v. Pickett, 25 a general mode for assessing compensation Mo. 535; Dronbergert). Reed, 11 Ind. 420 ; for land taken by the company, may be Kramer v. Cleveland, &o. R. Co., 5X)hio applied to the interest of a turnpike com- St. 140. pauy in land covered by their road, and in ^ Cook b. South Park Com'rs, 61 111. the road itself, as being a species of tangible 115 ; Louisville, &o. R. Co. v. Dryden, 39 property. White River Tp. Co. v. Vt. Ind. 393 ; Isam v. Miss. Cent. R. Co., 36 Central R. Co., 21 Vt. 590. SBC. 250.] MODE OF ASCERTAINING DAMAGE : NOTICE. 955 ings shall be brought is limited, unless the land-owner brings pro- ceedings within that .period, his remedy is lost. These proceedings are regarded as being in the nature of a suit at law, and where they arise between citizens of different States they are removable into the national court.-' Generally the statute requires that notice shall be given to the parties in interest of an application for the appointment of ap- praisers, etc., as well as of the time when, and place where they will meet to hear the parties, and also the kind of notice which shall be given; and even if the statute makes no such provision, there is no question but that the courts may direct that reasonable notice shall be given ;2 as it cannot be said that a man's property 1 Boom Go. V. Patterson, 98 TJ. S. 403. '^ In Polly V. Saratoga, &c. B. R. Co., 9 Barb. (N. Y.) 441. The service of the notice of a motion for confirmation is only a step in the proceedings, and a matter of practice. The failure to give it will not deprive , the court of the jurisdiction al- ready acquired, or render the order liable to be attacked collaterally. Allen v. Utica, Ithaca and Elmira E. B. Co., 15 Hun (N. Y.), 80. Jurisdiction to appoint com- missioners of appraisal cannot be conferred by notice served only on a person who' is in no way connected with the land-owner, and has only gone on the land to receive service by collusion with those iuterested in the condemnation. Dunlap v. Toledo, Ann Arbor, & Grand Trunk B. B. Co., 46 Mich. ,190. In Virginia it is held that the general statute relating to corporations confers no jurisdiction on a county court to take or appropriate land or other prop- erty of individuals or corporations for a railway company. Its only jurisdiction in such a case is to appoint commissioners to ascertain and report what compensation and damages the owner of the property is entitled to receive where he and the com- pany cannot agree upon the question, and to determine what shall be a just compen- sation, upon the payment of which the statute vests the fee-simple title of the property in the company. Alexandria & J'redeiioksburg B. B. Co. ». Alexandria '& Washington B. B. Co., 75 Va., 780. In West Virginia it is held that the cir- cuit court has no jurisdiction in a case where a railway company seeks to condemn lands, the jurisdiction in such eases being coniined to the county court. Chesapeake & Ohio E. B. Coi ». Hoard, 16 West Va., 270 ; Chesapeake, &c. E. B. Co. v. Patton, 9 ib. , 648. An accurate description of the land is essential to the validity of the pro- ceedings. New York Central & Hudson Biver B. B. Co., m re, 90 N. Y., 342. All interested parties must be notified or the proceedings will be invalid. Morgan's La. & Tex. B. B. Co. v. Bourdier, 1 Mc- Gloin (La.), 232 ; Peoria & Bock Island B. E. Co. V. Warner, ■61 111., 52. Where a judgment, purporting to be a judgment for the condemnation of the right of way for a railway company, is rendered against the company, and it does not appear that the condemnation proceedings were insti- tuted by it, or that the company was a party to them, or even that it had any no- tice of them, and no summons was served upon the railway company, it was held that such judgment is void. Junction City & Fort Kearney B. B. Co, v. Silver, 27 Kans. , 741. In Illinois, under the statute, the circuit and county courts are held to be always open for proceedings to condemn land for right of way ; and when the sum- mons is quashed, the court may order an alias summons returnable in vacation ; and when so issued bid served ten days before the return day, the court will acquire jurisdiction to assess the compensation to be paid for the right of wa^. Leibengut V. Louisville, New Albany, & St. Louis B. E. Co., 103 111., 431. Where service is had upon the land-owner, but not ten days before the day set by the judge for 956 EMINENT DOMAIN. [CHAP. XIV. has been taken by due process of law, where he has had no oppor- tunity to be heard upon the question of compensation ; and in New judge, making a prwia fade case, with due proof of notice, the appointment should he made as a matter of course. All uncertain and debatable questions should be certified to the Supreme Court. State v. Hudson Tunnel E. B. Co., 38 N. J. Law, 548. In proceedings by a railway company to acquire title to lands under the water of the Hudson river which had been granted by the State to the owners of the uplands, the petition contained an bffer on the part of the company to construct a draw- bridge to give access from the river to the docks of the land-owners. After an order had been made and appealed from appoint- ing commissioners on application of the company, aa order was granted, giving it leave to withdraw the offer, and to amend the petition accordingly. It was held that the court had no power to so amend the petition ; that no such power was given by the provision of the general railroad act, which authorizes the correction of " any defect or informality." New York & West Shore E.E. Co., inre, 89 N. Y., 453; s.c. 27 Hun (N. Y. ), 57. In a proceeding by the land-dwner for the assessmenlT of damages against a railway company which had con- strueted its line across his fann, the appli- cation particularly • described the whole tract of land; but that part of it occupied by the defendant's railway was described as "extending diagonally through said tract of land, from a point near the north- east comer to a point near the southwest comer." It was held that the description was fatally defective on demurrer. Indi- anapolis & Vincennes E. E. Co. v. New- som, 54 Ind., 121. A railway company gave a bond to plaintiff to secure the pay- ment of damages which the plaintiff might sustain by reason of the location of the railway through his farm. On the back of the bond was a stipulation that if, from any cause, the quantity of land and fencing through the property required by the location of the road, as at present located, should be changed or lessened, a stated deduction should be made from the face of the bond. In debt upon the bond, the company offered to prove that' the land actmilly 'taken for ite line was the hearing of a petition presented in va- cation, the sen'ice, though not in time for the purposes of a trikl, will give the court jurisdiction of the person of the defendant, and the petition gives jurisdiction of the subject matter and of the person of the petitioner, and the court will have the power to continue the cause, and such a continuance will not abate the proceeding. Bowman v. Venice & Carondelet E. E. Co., 102 111., 472. But notice sent by maU to an improper address confers no jurisdiction. Morgan v. Chicago. & North- eastern E. E. Co., 36 Mich., 428. The plaintiff's premises being injuriously af- fected by the works of "The Blackburn Eailway Company," he served the secre- tary, at its office, with a notice containing the particulars required by statute, but addressed to " The Blackburn & Clitheroe Eailway Co ; " and it was held that the notice was sufficient. Eastham v. Black- bum Ey. Co., 9 Exchq. 758. In Maine the jurisdiction of the railway commis- sioners being given by statute, and the petition presented to them being the foun- dation of their action, they obtain juris- diction only when the petition presents a case within the provisions of the statute. Spofford V. Bucksport & Bangor E. R. Co., 66 Me., 26. If the statute has determined specifically what facts must appear on the face of the petition, the court or judge can- not take any action until a petition is filed containing the statutory requirements ; for it is by the petition jurisdiction is ob- tained of the subject matter. Smith v. Chicago & Western Indiana K. E. Co., 105 lU. 511. Allegations set out in the petition for the appointment of commis- sioners that the owner has refused to re- linquish the land or to make a volun- tary conveyance of it, and that he received five days' notice previous to the presenta- tion, state facts sufficient to give the court jurisdiction of the person of the owner and of the subject matter of the proceed- ing. Quayle v. Missouri, Kansas, & Texas E. E. Co., 63 Mo. 465. In New Jersey on an application for the appointment of commissioners to condemn lands, when a petition duly verified is presented to the SEC. 250.] MODE OP ASCEETAINING DAMAGE : NOTICE. 957 York it has been held that a statute which provides for the taking of a person's property for public purposes, without providing for notice to him, woiild be unconstitutional.^ Therefore, whether the materially lessened from the quantity named in a draft annexed to the bond. This evidence was rejected by the court below, but it was held tfiat it should have been admitted. Wilmington & Reading K. R.Co. V. High, 89 Peun. St. 282; Gurran V. Shattuck,24 Cal. 427 ; Whitcher^. Ben- ton, iS N. H. 157 ;, Dickey v. Tennison, 27 Mo. 373 ; Mo. River, &c. R. R. Co. ■». Shepard, 9 Eans. 647 ; Baltimore v. Grand Lodge, 44 Md. 436 ; State v. Orange, 32 N. J. L. 49 ; Peoria R. R. Co. ■». Warner, 61 111. 52 i Robinson v. Mothwick, 5 Neb. 252 ; Stanford v. Worn, 27 Cal. 171 ; State V. Anderson, 39 Iowa, 274 ; Pea- body w. Sweet, 3 Ind. 514; Molitt^u Eeenan, 22 Ala. 484 ; Comm'rs Court v. Bowie, 34 Ala. 461. 1 In Stuart v. Palmer, 74 N. Y. 183, the court say: "The constitutional require- ment of due process of law, extends to' administrative and executive, as well as judicial proceedings." Johnson v. joliet, &c. R. R. Co., 23 111. 202. But see Swan V. Williams, 2 Mieh. 427, 'where it was held that an act authorizing the taking of land which failed to provide for notice to the owners, was not unconstitutional for that reason alone, as the courts could order notice to be given, and would infer that the legislature intended that a reasonable notice should be given. But when the act excludes such an inference, it would be clearly unconstitutional and void, and an attempt io exercise the power Without notice would be illegal. In Baltimore & Ohio R. R. Co. V. Pittsburgh, Wheeling, & Ky. R. R. Co., 17 W. Va. 812,' it was held that the court in condemnation cases has under the statute jurisdiction of the subject matter and parties; and its judg- ments, unless reversed in some appellate ' proceeding, would therefore be conclu- sive upon the parties ; and independent of statutory proceedings a judgment of a court of competent jurisdiction in such proceedings is as conclusive upon the J)ar- ties thereto as any other judgment. But before the court can enter judgment upon an application made to appropriate land to public use, the owner of the land must liWe notice of such application ; but at whatever stage of the proceedings the owner of the land is notified to appear, after such notice he has the right to con- test the appropriation of his land to tfie petitioner's use. Where a statute author- izes a legal proceeding against any one, and does not expressly provide for notice to be given, it is implied that an oppor- tunity shall be offered him to appear in defence of his rights, unless the contrary clearly appears. In legal proceedings, where actual service cannot he had on the defen- dant, constructive service, if authorized by statute, will be regarded" as "due process of law." When the use for which private property is appropriated is public, and the legislature has acted upon the question, the expediency or necessity of appropriat- ing any particular property is not a sub- ject of judicial cognizance. The property may be appropriated by an act of the leg- islature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in wliichthe public is interested. But when the sovereign power attaches conditions to the exercise of the right of eminent domain, the inquiry whether the conditions have been observed is a matter of judicial cognizance. Where the statute in condemnation proceedings does not de- clare that the judgment shall be final, the judgment of the inferior court must stand as all other judginents, and the ag- grieved party is entitled to the benefitof the general law regulating writs of error and supersedeas. While objections to the tak- ing or condemnation of the land may be raised by exceptions to the commissioner's report, yet it is a practice that should be discouraged. The first question to be de- cided is : Shall the land be condemned for the use of the petitioner ? And it is the' better practice to determine this question before the commissioners to assess value are appointed. In settling this question while it maybe done without formal plead- ing, yet there can be no irregularity in 958 EMINENT DOMAIN. [CHAP. XIV. statute makes provision for notice or not, it has been held that it will — especially where an appeal is allowed, or the commissioners are raising the objections to the condemnation by prof)er pleas, as it thus states the de- fence with legal precision. While a jtiry on the question of the appropriation of the land is not required by the statute, yet under section 5 of chapter 131 of the - Code, the court was authorized to direct that the issues be tried by a jury. As the party seeking the- appropriation of the, land has the affirmative of the issues upon the right to take it, such party is enti- tled to open and conclude the argument to the jury on that question. In these pro- ceedings a juror is not incompetent be- cause he is a citizen of the county in which the land is, and liable to the county levies, though the county may be interested in the suit. It is no obstacle in the way of the appropriation of land owned by one railroad company to the use of another, that merely to prevent its con- demnation, the former has put the land to a use not necessary for the proper exercise of its franchise. The jury or court may iind that a portion of the land sought to be condemned may be taken and the resi- due may not. Property belonging to a railroad company and not in actual use, necessary to the proper exercise of the franchise thereof, may be taken for the pur- poses of another railroad under the gen- eral railroad law of the State. An express legislative enactment is generally required in order to take such property in use by a railroad company, excSpt where the pro- posed appropriation would not destroy, or greatly injure, the franchise of the com- pany, or render it difficult to prosecute the object thereof. Private property can only be taken for a public use, and no more of such property can be taken than is neces- saiy for such use, which must be deter- mined, when proper, from the statute on the subject and the facts appearing in the case. Upon a motion for a new trial in a condemnation case, as in any other case, evidence that is not relevant to any issue before the jury will not be considered by ' the court. Unless the owner of the land who is before the court in some form de- nies that the land sought to be condemned is necessaiy for the use of the petitioner, he will be deemed in the appellate court to have waived any such objection to the condemnation. A small portion of the buttress of a bridge, belonging to one railroad company and not necessaiy to the suppoit of the bridge and to the exercise of the franchise of the company, may be taken for the use of another railroad com- pany. Where a State constitution pro- vides that private property shall not be taken for public use without just compen- sation, the damage to the residue of the tract, where a part is taken, is an element of damage to be considered by the com- missioners or jury, as the case may be. The facts upon which a petitioner bases his right to the removal of a case from a State to a Federal court must be made to appear to the satisfaction of the court, be- fore the order of removal can be made. The petition becomes a part of the record and should state facts which, taken in connection with such as already appear, entitle the petitioner to a removal of the case. With the question of the appropri- ation of the land sought to be taken, the United Stat»' government, — a separate sov- ereignty, — unless it is the jmrty seeking the condemnation, has nothing to do. A foreign corporation cannot in the courts of the United States condemn the land of a citizen of a State for the use of such corpo- ration ; and if the Federal courts have not original jurisdiction for such purposes, a proceeding of that kind instituted in a -State court csHinot be removed to the Fed- eral courts, because the Federal courts can under no circumstances have jurisdiction of such a case. A rauroad corporation may have an existence in more than one State, if chartered or licensed to buUd its road and do business in more than one. The Baltimore & Ohio Railroad Company is a domestic corporation in the State of West Virginia, and as such liable to be sued here. When sued in the courts of this State by a citizen thereof, such Suit cfinnot be removed to the Circuit Court of the United States, as that court has no jurisdiction of such a case. Whether a repealing act shall have the effect to, arrest proceedings in pending cases depends upon , SEC. 250.] MODE OF ASOEETAJNING DAMAGE : NOTICE. 959 empowered to hear evidence, or the parties are required to attempt to agree on the damages — be presumed that it was intended that notice should be given ; ^ and the courts will usually order that the parties shall be notified before they will proceed.^ Of course, the legislature may provide what kind of notice shall be given, and having done so, the notice therein required must be given.^ If the statute provides the intent of the legislature. That intent, must he gathered from the action of the legislature itself, but not necessarily from the repealing act alone ; but if it can be gathered from any act upon the same sub- ject passed by the legislature at the same session, that it was the legislative, intent that pending actions or proceedings should be saved, it is sufficient to effect that pur- pose. , 1 Atlantic, &c. B. E. Co. v. Cumber- land Co. Comm'rs, 51 Me. 36 ; Swan m. Williams, 2 Mich. 427 ; Dickey v. Tenni- son, 27 Mo. 373 ; Peoria E. E. Co. v. Warner, 61 111. 62 ; Booiieville v. Ormrod, 26 Mo. 193 ; Skinner v. Lake View Av. Co., 57 111. 151 ; Johnson v. Joliet & Chi- cago E. E. Co., 23 111. 102. The form of notice is not material. Doughty v. Somerville, &c. E. Co., 21 L. J. L. 442 ; Eoss V. Elizabethtown, &c. E. Co., 20 N. J. L. 230. 2 Swan V. Williams, 2 Mich. 427. The notice should be such as to apprize the party of the nature of the application and the time and place when and where it is to be heard, and what property is intended to be taken. Van Wickle v. Camjien, &c. E. E. Co., 3 N. J. Eq. 162 ; Castor v. IS. 3. E. E. Co., 24 N. J. L. 730 ; Vail 11. Morris, &c. E. E. Co., 21 id. 189 ; In re New York Elevated E. E. Co., 70 N. Y. 327 ; Eeitenbaugh v. Chester Valley E. E. Co., 21 Penn. St. 100 ; Quincy, &o. E. E. Co. !>. Kellogg, 54 Mo. 334 ; Quincy, &o. E. E. Co. v. Taylor, 43 Mo. 85. A warrant issued to a sheriff, com- manding him to summon a jury to assess the compensation due, "if any," to C, was held not to affect the va,lidity of the warrant, or vary the duties of the jury. Eegina v. Lancaster & Preston Ey. Co., 6 Q. B. 759. Upon an application to con- firm the report of commissioners appointed to appraise the damages caused by the taking of land for railway purposes, the court at special term has power to refuse to confirm the report and direct a rehear- ing, upon the application of a land-owner who shows that he has not received proper and adequate notice of the meetings of the commissioners, and that by reason thereof he has been absent therefrom. New York, Lackawanna, & Western E. E. Co., in re, 29 Hun (N. Y,), 602. Under a provision in a railway charter requiring notice in condemnation proceedings to be given to "the persons interested," a mortgagee of the lands condemned, if not notified, ia not bound by the proceedings in condem- nation. Piatt V. Bright, 29 N. J. Eq. 128. Before the court can enter judgment, upon an application made to appropriate, land to public use, the owner of the land must have notice, of such application ; bvi at whateoer stage of the proceedings the owner is notified to appear, after such no- tiee he has the right to contest the appropria- tion of his land to the petitioner's tcse. Baltimore & Ohio B. E. Co. v. Pittsburgh, Wheeling, & Ky. E. E. Co., 17 W. Va.. 812 ; Tracy v. Elizabethtown, &c. E. E. Co., 80 Ky. 259. In Wisconsin, under the general railway act, the 'initiative in the, exertise of the right of eminent domain belongs exclusively to the corporation. Sherman v. Milwaukee, Lake Shore, & Western R. B. Co., 40 Wis. 645. 8 Warwick Institution v. Providence, 12 R. I. 144 ; Nort6n v. Walkill Valley B. E. Co., 63 Barb. (N. Y.) 77 ; People. V. Kinskem, 54 N. Y. 52 ; Morgan i>. Chicago, &o. E. E. Co., 36 Mich. 428; Chicago, &c. R. R. Co. v. Smith, 78 111. 96 ; Hood v. Finch, 8 Wis. 381 ; New Orleans, &c. E. E. Co. v. Frederic, 46 Miss, i ; People v. Lockport, &c. R. E. Co., 13 Hun (N. Y.), 211 ; Salem v. East- em R. R. Co., 98 Mass. 431. The pro- ceeding is in rem, against the land, and the legislature may specify how notice shall be given. Weir v. St. Paul, &c. 960 EMINENT DOMAIN. [CHAR XIV, that notice shall be given, but does not prescribe the manner in which it shall be given, it will be presumed that personal notice was intended ; ^ and where notice was served upon one of the parties E. R. Co., 18 Minn. 155 ; Missouri River, &c. R. R. Co. V. Shepard, 9 Kan. 647 ; New Orleans, &c. R. E. Co. v, Hemphill, 35 Miss. 17 ; Empire City Bank, m re, 18 N. Y. 199 ; Cupp v. Seneca County, 19 Ohio St. 173 ; Owners v. Albany, 15 Wend. (N. Y.) 374. And the givingi of such notice is a prereijuisite to the exer- cise of the power. In re Long Island K. R. Co., 45 N. Y. 364. Thus, it may provide that it shall be given by advertise- ment even to resident owners. Polly v. Saratoga, &o. E. R. Co., 9 Barb. (N. Y.) 449 ; "Wilkin v. St. Paul, R. R. Co., 16 Minn. 171. In the case of unknown owners, the only notice possible is con- structive notice, and it may be given by advertisement in newspapers, Seoombe v. Milwaukee R. R., 2 Dill. (IT. S. C. C.) 469 ; Wilson v. Hathaway, 42 Iowa, 173 ; by posting, Hildreth v. Lowell, 11 Gray (Mass.), 345 ; Taylor v. Hampden, 18 Pick. (Mass.) 309 ; or by mail. Crane ■». Camp, 12 Conn. 464. And as constructive notice is a creature of statute, that notice may also be dispensed with. Johnson v. JolietR. R., 23 111. 202 ; Cowan v. Glover, 3 A. K. Mar. (Ky.) 357. The statute may require service of personal notice on owners in actual occupancy ; and if not in actual occupancy, by publication. Hunt V. Smith, 9 Kan. "137. In Wisconsin, the owner of the land proposed to be taken, when known and living within the city, should have personal notice of the tilne and place of the appointment of the jury, and when they will meet to view the premises, in order that he may object to the selection of any unfit person on the jury, and have a full opportunity to be heard before them on the question of necessity. The failure of a city charter to provide for such notice to resident owners renders ths proceedings void. Notice by advertisement may pi-operly be given to non-resident owners, but not to resident owners, or those having tenants or resi- dent agents. State v. Fond du Lac, 42 Wis. 287. Where the statute requires service of notice personally on an agent of an owner residing in the State, or on a non-resident owner of land personally, wherever he may be, or by publication in a newspaper for six weeks, and by sending to the land-owner by mail, if known and non-resident, if his residence is known, a copyof the petition and notice of hear- ing, thirty days before the time of presenta- tion, the record should show that there was no resident agent ; and a service by mail on a non-resident owner would not be sufficient if the record was silent as to the existence or non-existence of a resident agent. Morgan v. Chicago, &c. E. R., 36 Mich. 428. Notice by advertisement should be directed to the person by name, when known. If not known, he may be described as unknown. Chicago, &e. E. E.' Co. V. Smith, 78 111. 96. The posting of notices in public places is a proper means of bringing home notice to the owners of property. This notice must be given strictly according to the statutory require- ment, or else the proceedings will be void as to non-residents. Curran v. Shattuck, 24 CaL 427. If the statute does not require the proof of the posting to be in writing, the record declaring that such notice has been given is presumptive evi- dence of its having been properly done. McCoUister v. Shuey, 24 Iowa, 362 ; The States. Prine, 25' Iowa, 231. Where the chai'ter requires notice to be given by pub- lication to the owner or occupier, or " un- known owners of land " sought to be con- demned, of the application to appoint commissioners, and the company publishes such notice as to one who had held a life estate only, but who was dead, not nain- ing the remainderman, it was held that the subsequent proceedings condemning the land for right of way were not binding upon the remainderman, and that he might recover the land appropriated by ejectment. Chicago & Alton R. E. Co. V. Smith, 78 111. 96. 1 Eathbun v. Acker, 18 Barb. (N. Y.) 893 ; McDermott v. Board of Police, 25 id. 635. SEC. 250.] MODE OP ASCERTAINING DAMAGE : NOTICE. 961 by leaving it at his dwelling-house with his wife, he not being ab- sent from the State, the court doubted whether it was sufficient,^ but intimated that it might have been sufficient if the party had been absent from the State. Of course a party may waive notice, and he is treated as having done so when he appears and contests the prqceedings upon the merits,- but not by an appearance merely to question the regularity of the proceedings.^ The proceeding^ being in rem, against the land, the judgment is conclusive against all par- ties interested, whether they had notice of the proceedings or not ; as the seizure itself is constructive notice, and the court obtains juris- diction over the land seized ; * and in some of the States it has been held that it is not essential to give notice when the statute does not require it;^ and it may occur that the exigency is such as not to admit of it,® although in the case of lands taken for railway purposes such an exigency could hardly arise ; but the principle remains that, where the statute does not require notice to be given, the courts may direct such notice ta be given as the circumstances seem to, demand, or may proceed without any notice being given other than such as arises from the seizure of the land.^ If the statute does not require notice to be given of the appointment of commissioners, none need be given ; ^ but under such circumstances the courts will require all the proceedings to be in strict conformity to the statute, and if they are not they will be set aside.® But usually the statute requires that notice shall be given, and when this is the case juris- diction cannot be obtained without it.^" although jurisdiction will be I People V. Niagara Bridge, &c. E. Co., logg, 54 Mo. 334 ; Spurrier v. Wertner, 48 13 Hnu (N. Y.), 213. Where a person is Iowa, 486 ; People v. Osborn, 20 Weiid. alleged in the petition to be a resident of a (N. Y.) 186. certain place, a notice mailed and addressed * Cupp ». Com'rs X)f Seneca Co., 19 to him at another place, is void. Morgan Ohio St. 173 ; Wilson v. Hathaway, 42 V. Chicago, &o. R. Co., 36 Mich. 428. Iowa, 172 ; Stewart v. Police Board, 25 ' Dyokman ». Mayor, 5 N. Y. 441 ; Miss. 479. People V. Quigg, 59 N. Y. 83 ; Cruger v. ' Kramer v. Cleveland R. Co., 5 Ohio Hudson River E. Co., 10 N. Y; 190 ; Long St. 140 ; Hikrper v. Lexington E. Co., 2 Island R. Co. v. Burnett, 10 Hun (N. Y.), Dana (Ky.), 227. 91 ; Anderson v. AVood, 80 111. 15; Peavy ^ George's Creek Co. v. Coal Co., 40 V. Wolfboro, 37 N. H. 286 ; Roerhbom v. ^i. 425. Schmidt, 16 Wis. 519. 7 Wilson v. Hathaway, 42 Iowa, 172. s Boston, &c. E. Co. v. PoLsom, 46 « Weir v. St. Paul, &c. R. Co., 1 8 Minn. N. H. 64 ; Roberts u. Stark, 47 N. H. 223; 155. But the courts will usually direct Concord E. Co. v. Greely, 17 N. H. 47; notice to be given. Booneville u Ormrod, Mohawk, &o. R. Co. v. Artcher, 6 Paige 26 Mo. 193. Ch. (N. Y.) 83 ; Cruger ».^ Hudson Eiver » Hood v. Finch, 8 Wis. 331. K. Co., 12 N. Y. 190 ; Seifert v. Brooks, i» Cruger v. Hudson River R. Co., 12 34 Wis. 443 ; Quincy, &c. E. Co. v. Kel- N. Y. 190. 962 EMINENT DOMAIN. [CHAP. XIV. presumed when the record shows that the court decided that suffi- cient notice had been given.' And where jurisdiction has once at- tached, subsequent proceedings will not be invalidated by a failure to give notices required,^ and if notice is given to some of the par- ties and not to others, the proceedings will be valid as to those to whom notice was given.^ Where proceedings are had without the notice required by statute they are invalid, and will be set aside on certiorari or other proper remedy.* Sec. 251. CommiBsioners, Viewers, Appraisers, Sheriff's Jury, etc. — The appointment of commissioners, etc., is usually committed to some court of record, and if it refuses to appoint, it can be compelled to do so by mandamus.^ The appointment is a judicial act addressed to the judgment and discretion of the court, therefore it cannot be decided by lot, nor can it be confined to persons previously selected by some other body.® Generally the statute provides that they shall be disinterested, and usually that they shall be freeholders, and when this is the case the facts should appear in the record of ap- pointment;^ although in some of the cases it is held that unless the question is raised by the answer, in the absence of any statement upon that subject in the record, it will be conclusively presumed that the commissioners possessed the requisite statutory qualifica- tions.* The word " disinterested " as used in these statutes, is held to exclude stockholders of the corporation.® In some of the States it is held that the species of interest requisite to disqualify is a peeii- niary interest, and does not necessarily exclude relatives within the 1 State V. Prime, 25 Iowa, 231 ; State '' State v. Jersey City, 25 N. J. L. 809; V. Anderson, 39 id. 274. Jiidson v. Bridgeport, 25 Conn. 426. " Commissioners v. Espen, 12 Kan. 531. ' Kellogg v. Price, 42 Ind. 360 ; App's ' State D. Easton E. E. Co., 36 N. J. Eoad, 17 S. & E. (Penn.) 888. But the L. 181 ; Kidder v. Jennison, 21 Vt. 108. fact of jurisdiction must appear from the * State V. Jersey City, 25 N. J. L. 809; record, and will not be inferred or pre- Seifert v. Brooks, 34 Wis. 443 ; Stone v. sumed. Miller v. Brown, 66 N. Y. 383. Boston, 2 Met. (Mass.) 220 ; Wood v. ' Eock Island E. R. Co. v. Lynch, 23 Commissioners, 62 111. 391 ; Case v. 111. 645 ; Friend appellant, 63 Me. 887 ; Thompson, 6 Wend. (N. Y.) 634 ; Atlan- Williams v. Gt. Western Ey. Co., 3 H. & tic E. E. Co. V. Comm'rs, 51 Me. 36; N. 869. A person who has a " bond " for Ware v. Commissioners, 38 Me. 492 ; a deed of land, is held to be a freeholder. Anderson v. Tuberville, 6 Coldw. (Tenn.) New Orleans E. E. Co. v. Hemphill, 36 160 ; Skinner v. Lake View Av. Co., 57 Miss. 17. In Georgia a stockholder's son 111. 161 ; People v. Supervisors, 36 How. has been held to be disqualified because Pr. (N. Y.) 544; Joliet E. E. Co. v. of his near relationship to a person having Barrows, 24 111. 562. an interest. Georgia R. E. Co. v. Hart, 5 Western E. E. Co. v. Dickson, 30 60 Ga. 650. An employ^ of the company Wis. 389. is disqualified from serving as a juror. » Menges v. Albany, 56 N. Y. 374. Central E. E. Co. v. Mitchell, 63 Ga. 178. SEC. 251.J COMMISSIOSEES, VIEWERS, APPEAISEES, ETC. 963 fourth degree of consanguinity.^ But in Indiana it is held to ex- clude not only those pecuniarily inteieste4 but also xelatives within . the sixth degree of consanguinity.^ The fact is jurisdictional,^ but if it is known to the parties that one of the commissioners is not a freeholder, or disinterested, and the objection is not taken at the earliest opportunity, it is waived.* But if not known, the report of persons who have not the requisite qualifications is coram non judice. and void,^ although the commis- sioner who is disqualified did not vote with the majoHty.^- The commissioners must be sworn to the faithful discharge of their du- ties before they enter upoh their discharge, or the proceedings will be quashed ; ^ and- the record should show that they were all duly sworn;^ and the form of the oath should be such as to meet the statu- tory req\iirements.^ The commissioners, must conform to the order of the court appointing them, both as to the time and place of meeting. 1 In Chase v. Rutland, 47' Vt. 393, it was held that a statute which required that road commissioners should he " dis- interested" freeholders, related to free- holders not " 2lieuniarily " interested in the establishment or^on-establishment of the road. In Massachusetts, it is held that the pecuniary interest must be more than that of a. simple taxpayer. Taylor ■ u. , Worcester, 105 Mass. 225; State v. Crane, 36 N. J. L. 394. The fact that one of the commissioners or viewers had a claim against the company for damages was held not to disqualify him. New- becker v. Susquehanna R. R. Co., 1 Pear- son (Penn.), 57. Nor that he has expressed an opinion. Gingrid v. Harrisburgh, &o. R." R. Co., 1 id. 74. But one who has given his note to the company to aid the enterprise, is disqualified by reason of his i9'terest, and his disqualification cannot be removed by the agreement ot the par- ties. Michigan Air Line E. E. Co. v. Barnes, 40 Mich. 383. But see Detroit Western Transit Co. v. Crane, 50 Mich. 182, wliere it was held that a subscriber to a fund in aid of a railway is not dis- qualified to act as a commissioner to assess damages against another projected road, simply because such road is to be leased to the road to whose aid-fund he has subscribed. * ^ High V. Ditching Assn., 44 Ind. 356. = State V. Jersey City, 25 N. J. L. 309. 4 Town V. Stoddard, 30 N. H. 23 ; Emanuel Hospital ». Metropolitan Ey. Co., 19 L. T. N. s. 692 ; Groton v, Hul- bnrt, 22 Conn. 178 ; Matter of Wells County Road, 7 Ohio St. 16 ; Baldwin v. Calkins, 10 Wend. (N. Y.) 167. 6 Daggy V. Green, 12 Ind. 303. 6 Rock Island E. Co. v. Lynch, 23 111. 645. ' Fisher v. Smith, 5 Leigh (Va.), 611 ; Frith V. Justices, 30 Ga. 723. ' 8 Virginia E. R. Co. v. Lovejoy, 8 Nev. 100 ; Pollard v. Ferguson, 1 Litt. (Ky.) 196 ; Wells County Eoad, 7 Ohio St. 16 ; Broad Street Road, 7 S. & E. (Penn.) 444. If commissioners are swom in the first instance, they need not be swom when the report is recommitted to them. Law v. Galena E. E. Co., 18 111. 324. In some of the States the oath taken should be returned, and any verbal inac- curacies therein are held fatal to the re- port. State V. Green, 15 N. J. L. 88 ; State V. Ayres, 15 id. 479. In Cambria St., 75 Penn. St. 357, an oath to rbad viewers "faithfully to discharge their duties " was held not to comply with a statutory requirement that they make oath to perform their duties " impartially and according to the best of their judg- ment." State V. Hutchinson, 10 N. J. L. 242 ; Hoogland v. Culvert, 20 id. 387. 9 Camhrea St., 75 Penn. St. 357. 964 EMINENT DOMAIN. [CHAP. XIV. or their report will be invalid ; ^ but having met as required in the order, they may adjourn from day to day until their investigation is completed, and may adjourn to a different place from that named in the order.^ "An adjournment publicly announced," says Pakdee, J. in the case last cited, " is the easiest and most common mode of securing the attendance of parties ; a written notice signed by the committee and served upon every person interested involves much more labor, but it is equally effective. . . . The committee, having opened the trial at the place specified in the commission from the court, had power to continue it to another place, giving due notice of the change, and being responsible to the court for their action in this respect." The majority of the commissioners or viewers control, and may make the award, but they must all be notified and attend the meet- ings.^ If the statute provides for a jury , to assess the damages, if the parties agree upon commissioners to act in place of the jury, it is held that all must concur;* although this would doubtless be otherwise where the statute provides that a majority of the jurors shall prevail. If there is a vacancy in the board, the board cannot act until the vacancy is filled.^ The report is subjSct to acceptance or rejection by the court for cause, and the same causes will operate to sustain or reject the report, which would operate to sustain ot set aside the verdict of a jury.^ They act judicially, and proceedings 1 state V. Scott, 9 N. J. L. 17 ; Rolierts defendant." The law required the judg- V. Williams, 13 Ark. 355. ' ment for the defendant entered in such 2 Goodwin v. Wethersfield, 43 Conn, case to be one vesting the title in the 437. company, but the clerk, in writing up the * Virginia R. R. Co. v. Lovejoy, 8 order, by mistake made it to read, " that Nev. 100 ; Christy v. Newton, 60 Barb, plaintiff take nothing by his action, and (N. Y.) 332 ; Grisoom v. Gilmore, 16 that defendant recover his costs." It was N. J. L. 105 ; Young v. Buckingham, 5 held that the entiy might be corrected Ohio, 485 ; Board of Commissioners v. nunc pro tunc at a subsequent term. Lex- Lansing, 45 N. ■^. 19 ; People v. Hynds, ington & St. Louis R. R. Co. v. Mockbee, 30 N. Y. 476. 63 Mo. 348. A finding by the jury that * McClellan v. Commissioners, 21 Me. they "did ascertain and determine that it 390. was necessary for said company to take » Wentworth v. Farmington, 49 N. H. said real estate for public use, to wit, for 128. the purpose of the company's incorporation . ^ Hannibal Bridge v. Schaubacher, 49 as and for right of way," is a sufficient Mo. 455 ; St. Louis R. R. Co. v. Almeroth, finding that the land was necessary and 62 Mo. 343 ; Matter of N. Y. Central requisite for the public use. East Sag- R. R. Co., 64 N. Y. 60. In proceedings inaw & St. Clair R. R. Co. v. Benham, 28 to set aside the report of commissioners Mich. 459. The report of the coramis- condemning lands for railroad purposes, sioners as to the amount of damages is the entry upon the judge's docket was, prima facie correct. Crawford v. Valley "Objections overruled and judgment for ,R. E. Co., 25 Grattan (Va.), 467. It is SEC. 251.] COMMISSIONBKS, VIEWEE3, APPEAISEES, ETC. 965 before them are treated as being a civil action.^ Objections of any kind should be naade before them, and unless so made, will not be not necessary that the adjudication of county commissioners upon the subject- matter of a petition presented by a person whose land has been taken for a railway location should be annexed to or made a part of the warrant for a jury subsequently issued by the commissioners, if a copy of the original petition is incorporated with -the warrant. Childs v. New Haven & Northampton Co., 133 Mass. 253. As- sessors appointed to assess damages to property caused by the building of a rail- , way must find the value of the land taken. A report containing a lumping charge of all the injury done will be set aside. The court will not refer a report hack to view- ers for correction when their previous one seems partial. Poffenberger v. Susque- hanna K. R. Co., 1 Pearson (Penn.), 45. Under a proper construction of the statute directing the appointment of three commis- sioners of appraisal, the report of the com- missioners is not rendered nugatory by the fact that only two of them acted and signed the Report. Such a report is sufficient to authorize the court to render a judgment upon it vesting the title to the land in the company. Quayle v. Missouri & Texas E. E. do., 63 Mo. 465. In New York, a second award of the commissioners is con- clusive upon the question of the amount of damages. Prospect Park & Coney Island E. E. Co., m re, 27 Hun (N. Y.), 184. And in Maine, where a second as- sessment of damages is made, the court must render judgment for the full amount found by the commissioners. If money has been paid into court upon a former assessment, which has since been set aside at the instance of the land-owner, it can- not be treated as a payment or allowed as a credit on the judgment. Provolt v. Chicago, Eock Island, & Pacific E. E. Co., 69 Mo. 633. Where there is a failure to comply by the commissioners with the requirements of the act to provide for the exercise of the right of eminent domain, the court or judge may set aside the re- port, or re-submit and ditect a further find- ing. Pueblo & Arkansas Valley E. E. Co. V. Eudd, 5 Col. 270. For a com- plete appropriation of real property, com- pensation should be given in a single proceeding ; but for a temporary taking, successive actions for damages may be maintained. Lehigh Valley E.E. Co. v. McFarlan, 43 N. J. L. 605. In proceed- ings to appropriate private property, there must be a judgment confirming the ver- dict of the jury before the corporation is entitled by a deposit of the amount of such verdict to possession of the property appropriated. Wagner v. E. E. Co., 38 Ohio St. 32. County commissioners have no right to amend their record on a peti- tion for land damages by inserting, as parties, names not embraced in the peti- tiouj Littlefleld ©..Boston & Maine E. E. Co., 65 Me. 248. While a judgment against a railway company for the taking of land on which its road was built' re- mained unpaid, a mortgage of the road with all the property and franchises of the company was foreclosed, and the pur- chasers organized under the statute a new company, which, with knowledge of *lie facts, continued to operate its road over said land. It was held that equity will restrain the company from further main- taining and operating the road over the land, ex(5ept upon payment of the judg- ment against the old company. Th^ facts that the judgment against the old com- pany was obtained two years before the' foreclosure sale, and that the road had been operated over the land during that time, and that no further steps were taken by suit to eiiforoe payment of the dam- ages until the new company had been oc- cupying the land for thirteen years, do not constitute a waiver of the owner's right to compensation. Oilman v. She- boygan & Fond du Lac E. E. Co., 40 Wis. 653. In another case the complaint, in substance, that plaintiff, in 1859, ob- tained judgment agaiijst the S. & M. E. E. Co., for damages for land taken by it for its road ; that in 1861 the property 1 Albany, &c. E. R. Co. v. Lansing, 16 Barb. (N. Y.) 68. 966 EMJNBNT DOMAIN. [chap. XIV. entertained by the court on appeal, partiality or bias, and their report and franchises of that company were sold under a mortgage ; that the purchasers took with notice of the existence and non- paj'ment of said judgment; that they subsec^uently organized into a new com- pany, which is operating the road built by said S. & M. Co., claiming to own the same and its appurtenances ; that, in con- tinuation of the appropriation of plaintiff's said land made by the last-named com- pany, defendant, the new company, en- tered upon the same, and now holds, and ever since 1861 has held, it to its own exclusive use and benefit, without plain- tiff's consent ; that plaintiff's judgment is a valid subsisting one, wholly unpaid ; and that the S. & M. Co., ever since the mort- gage sale, has been insolvent, and has no existence in fact, but }ias been merged in the defendant. It was held that plaintiff has probably a remedy in equity to compel the defendant to make compensation for the land, or stcip running cars over it ; but that the defendant is not liable in this action, at law, for a debt upon the judg- ment. Gilman v. Sheboygan & Fond du LsicE. E. Co., 37 Wis.,317. 1 Matter of Clear Lake Water Co., 48 Cal. 586 ; Grand Junction R. R. Co. v. Middlesex Gomm'rs, 14 Gray (Mass.), 553 ; Charles Eivei' R. R. Co. v. County Comm'rs, T id. 389 ; Eaton u. Framing- ham, 6 Cush. (Mass.) 245. The want of publication of notice to parties inter- ested cannot be insisted upon on appeal where all concerned have voluntarily ap- peared in the cause. East Saginaw & St. Clair R. R. Co. v. Benham, 28 Mich. 459. Where an appeal is required to be made by filing a notice of appeal with the clerk of the district court within thirty days after the award is filed, and the ap- pellant failed to perfect her appeal in that manner, but made service of notice upon defendant. It was held that the court acquired no jurisdiction of the case. The defect was not cured so as to give the court jurisdiction by the action of the company in executing and filing a bond immediately after the service of the no- tice, conditioned to pay appellant what- ever sum might be awarded her upon such } Their action must be free from will be set aside if it is showli to appeal, nor by moving the court to dis- miss the appeal for such want of jurisdic- tion. Klein v. St. Paul, Minneapolis, & Manitoba E. R. Co., 30 Minn. 451. And notice of an appeal by the owner of the land from the decision of the commission- ers served upon the attorney of the rail- road company is insufficient. Hartman v. Belleville & O'Fallon R. R. Co., 64 111. 24. Where land has been taken and a question is pending in a court of law as to the amount of compensation to which the land-owner is entitled, he will be protected in his constitutional right to possession of his property until his com- pensation be ascertained and paid or ten- dered to him ; and the company in whose favor the condemnation is made will not be permitted to take possession of the land on tendering so m"uch of the com- pensation as is not in dispute, but will be restrained from so doing. To secure the land-owner in his constitutional right, and at the same time to spare the com- pany unnecessary delay, the court will, on the latter paying the land-owner so much of the compensation as is undisputed, and the costs of the suit in this court, and paying into court an amount sufficient to cover the disputed claim, to the end that the land-owner may have the same if ad- judged by the court of law to be entitled thereto, permit the company to take pos- session of the land. Metier v. Easton & Amboy R. R. Co.,25 N..J. Eq. 214. The reversal of a judgment on appeal of the land-owner will not entitle him to bring an action of ejectment for possession. He should have the cause redocketed for an- other trial as to the amount of damages. St. Louis, Alton & Terre Haute E. R. Co. V. Karnes, 101 111. 402. No appeal lies from an order of the court confirming an inquisition condemning lands for the con- struction of a railroad unless the court exceeds its jurisdiction in passing such order. George's Creek Coal Co. v. New Central Coal Co., 40 Md. 425 ; Cumber- land & Penn. E. R. Co. v. Penn. E. E. Co., 57 id. 267 ; Brown v. Philadelphia, Wilmington, & Baltimore E. R. Co., 58 id. 639. In proceedings under the stat- SEC. 251.J COMMISSIOiraES, VIEWERS, APPRAISERS, ETC. 967 be prejudiced, or tainted with any improper elements or influences ;^ or if it is based on improper evidence or erroneous principles ; or if ute, where the commissioners have filed with the clerk their certificate of " ascer- tainment and assessment" and the court or judge has denied' the motion of the petitioner or respondent to vacate or set aside the same, there'is such a final deter- mination as will authorize a writ of error or an appeal., Denver & New Orleans R. R. Co; V. Jackson, 6 Ool. 340. In Wisconsin an order of the Circuit Court condemning land for the use of a railway company is held to be a final order affect- ing a substantial right in a special pro- ceeding, and is appealable. Wisconsin Central E. K. Co. v. Cornell University, 49 Wis. 162. And the railway company as well as the land-owner has the right of appeal to the Circuit Court from the award of commissioners; Lee v. Northwestern Union R. R. Co., 33 Wis. 222. When an appeal is taken by the petitioner from an order of the court confirming the report of commissioners, if there is more than one tract of land, the order may be reversed as to one of the tracts and afiirmed as to an- other, ^tockton & Copperopolis R. R. Co. V. Galgiani, 49 Cal. 139. In a pro- ceeding to condemn a strip of land for a right of way through a farm, consisting of" several tracts, both parties on the trial treated the farm as a single tract, in their examination of witnesses and instructions, and the jury fixed the compensation and the owner's damages as upon one tract. Upon appeal the company for the first time objected that the finding should have applied to each tract separately ; it was held that the objection could not be urged for the first time in the appellate court. Kankakee & Illinois E. R. Co. v. Chester, 62 111. 235. The only remedy, to redress a mistake in the amount of damages as- sessed by viewers is by appeal and trial by jury ; the court will not pass upon this question on exceptions to the report of viewers. The appeal should be in the same form as that from the award of arbi- trators. Seal v. Northern Central R. R. Co., 1 Pearson- (Pa.), 108. On an appeal from an assessment of damages at any time pending a motion to strike out exceptions to the assessment, the exceptions may be amended by the filing of an additional exception presenting a question proper to be tried on such appeal as the question of the inadequacy of the damages assessed. Pittsburgh, Fort Wayne, & Chicago R. R. Co. V. Swinney, 59 Ind. 100 ; Swinney v. Fort Wayne, Muncie & Cincinnati R. E. Co., id. 205. One of the claimants in whose favor the award of damages was made by the commissioners was a married woman. Her husband joined in taking an appeal from the award. Upon the trial of the appeal after claimants had rested their case, a motion was made to dis- miss the appeal because of such joinder of her husband, and was denied. ■ It was held not error. Wilkin v. St. Paul, Stillwater, & Taylor's Falls R. R. Co., 22 Minn. 177. Where on appeal the damages are in- creased but not paid, the land-owner is entitled to recover back possession, but the deposit Of the original award entitlfes the company to possession until the deter- mination of the appeal. Lake Erie & Western E. E. Co. v. Kinsey, 87 Ind. 514. As a general rule, on appeal interest 1 Thompson v. Conway, 53 N. H. 622 ; Pennsylvania R. R. Co. ■». Lutheran Con- gregation, 53 Penn. St. 445. Conversing with one of the parties relative to the damages, where the other is not present, — Peavy v. Wolfboro, 37 N. H. 286, — if the report is in that party's favor, is good ground for setting it aside. Goodwin v, Wethersfield, 43 Conn. 437. It has been held that treating the commissioners to liquor invalidates the report. Agno ■». Newport Highway, 48 N. H. 433. But entertaining them at the house of one of the parties where there' is no hotel near, has been held not to be sufficient ground therefor. Beardsley v. Washington, 39 Conn. 265 ; State v. Justices, 24 N. J. L. 413 ; State v. Bergen, 24 id. 342 ; Cole- man V. Moody, 4 H. & M. (Va.) 1. But such a course is reprehensible and ought not to be tolerated. Matter of Magnolia St., 8 Phila. (Penn.) 468. 968 EMINENT DOMAIN. [chap. XIV. the commissioners are shown to have acted improperly; but not for technical errors, or because the damages assessed are more or less than some other persons may have thought they ought to be.^i Even on the damages should be allowed. War- ren V. St. Paul & Pacific R. E. Co., 21 Minn. 424. And on a verdict on apjeal it is competent for the district court on motion to allow interest from the filing of the award to the time of the entry of judg- ment thereon, and to include the same in ■ the judgment. Whitacre v. St. Paul & Sioux City E. B. Co., 24 Minn. 311. And if the company is also an appellant, inter- est should be allowed. By its appeal the award of the commissioners is superseded, and the power of the owner to enforce pay- ' ment of his compensation is suspended until the issue is tried. Metier v. Easton & Amboy E. E. Co., 37 N. J. L. 222. And even where on^ appeal the allowance of damages is reduced, the land-owner is not entitled to iiterest. Eeisner v. Union Depot Co., 27 Kans. 382. The proceed- ings will not be reversed for a mere irreg- ularity. Louisville, New Albany & Chi- cago R. E. Co. D. Wunderlick, 81 Ind. 175. An issue was framed and submitted to a jury in words, "how much compensa- tion is the appellant entitled to for the right of way through his lands 1" It was held that the submission was sufficiently specific to justify the jury in accordance with the terms of the statute in estimat- ing not only the value of the land taken, but also such special damage as the con- struction of the road through his land would cause to the land-owner. Bowen V. Atlantic, &c. E. E. Co., 17 S. C. 574. An appeal taken by the railway company from an award of commissioners brings before the district court the propriety of an increase as well as a decrease of the damages awarded. St. Paul & Sioux City E. E. Co. V. Murphy, 19 Minn.' 500. Where the verdidl of a jury on an appeal finds that the land has been taken by the company, and not merely that it is pro- posed to be taken, it is, proper to award execution on the judgment. Peoria & Eock Island E. E. Co. v. Mitchell, 74 111. 394. Where the statute requires the jury to be freeholders the appellate court will presume that they were all so quaUfled, though not so stated in the record. Chesa- peake & Ohio R. R. Co. V. Patton, 9 W. Va. 648. Where, in the condemnation of land for railroad purposes, the award of damages was made to the owner and mort- gagee jointly on proper notice to both .par-' ties, the owner may prosecute an appeal therefrom without uniting the mortgagee as a party to such appeal. Lance v. Chi- cago, Milwaukee, & St. Paul R. R. Co., 57 la. 636. The court may in its discretion set aside a verdict of a sheriff's jury, where questions of law are reserved at the trial, and fail to be certified tq the court by reason of the death of the officer presiding at the trikl, and without any fault of the party requesting such questions to be cer- tified ; and no exception lies to an order made* in the exercise of this discretion. But where a judge does not exercise his discretion, and rules as matter of law upon the evidence, that a party is entitled to a new trial, his ruling may be revised on a bill of exceptions. Wamesit Power Co. V. Lowell & Andover R. R. Co.j'lSO Mass. 455. An appeal from an award of damages for right of way by the sheriffs jury may be taken by serving the opposite party or his attorney ; and it is not essential that service be also made upon the sherifiT, nor is it requisite that the report of the jury- be filed in the appellate court. The no- tice of appeal constitutes presumptive evidence that an assessment has been mad^. Hahu v. Chicago, Omaha & St. Joseph R. R. Co., 43 Iowa, 333. Notice of an appeal from the award of commis- sioners need not be served upon the op- posite party. Weyeru Milwaukee & Lake Winnebago R. R. Co., 57 Wis. 329. 1 Pearl Street Case, 19 Wend. (N. Y.) 651 ; California Pacific E. E. Co. v. Frisbee, 41 Cal. 356 ; New York Central K. E. Co., in re, 15 Hun (N. Y.), 63: affirmed, 64 N. Y. 60. In this case, upon the hearing before the commissioners, cer- tain evidence offered by the owner was excluded. He complained that such ex- clusion was error, and that for that reason the award ought to bo vacated. He of- SEC. 251.] COMMISSIOKBES, VIEWBES, APPBAISEKS, ETC. 989 in jurisdictions where the commissioners, etc., are held not to be con- fined to strictly legal evidence, the report will be set aside, if it fered to prove before the commissioners that between the hours of five in the morning and' nine at night one hundred and twenty trains pass over the n6w track up, as had heen ascertained hy actual count since a former.meeting of the com- missioners, and that a. proportionate num- ber of cars pass up and over such new track between the hours of nine at night and five in the saornilig ; that the cars are heavily loaded and cause great and in- jurious jar to the walls of^ such building. ■ This evidence was objected to by petition- ers and excluded. The owner also offered to prove that since the laying of the new track his building standing On a lot of which a portion of the street taken for the new tracks is a part has been seriously in- jured by the jarring caused by the trains, to such an extent as to shake down the walls and partitions, and cause the stair- way to be rebuilt, and that the injury CEtused by the use of .said tracks damages the ■ building in question so as to make an expense of $1,000 a year necessary to keep it in repair. This evidence was objected to by' petitioners a,nd excluded. The owner offered to prove that that portion of his lot not proposed to be taken has - been depreciated in value by the noise, smoke, and increased danger, and by the jarring caused by the running of the heavy trains on the new tracks. This evidence was also excluded by the commissioners. The owner also -offered to prove that the residue of his lot not taken is depreciated in value by the noise, smoke, and increased danger caused by the running of .trains over the new track, and would be so de- preciated. ' This evidence was also ex- cluded. Said Tappan, J. : " Under the law defining the rule to govern the com- missioners and the decisions of the court construing the same, was the evidence of- fered competent, and ought it to have been received ? Section 16 provides that the commissioners are ' to ascertain and determine the compensation which om/hi justly to be mads by the company to the owners or persons interested in the real estate appraised by them ; and in fixing the amount of saicl compensation said VOL. II. —11 commissioners shall not make any allow- ance or deduction on account of any real or supposed benefits which-the parties in- terested may derive from the construction of the proposed railroad, or the construc- tion of the proposed improvements con- nected with such road, by which such real estate may be taken.' The question as to what construction ought to ,be put upon this statute has been frequently before the court, and while it can be hardly main- tained that any of the cases upon the facts existing in the particular case were erro- neously decided, there is apparently some conflict of decision in reference to the principles declared by which the commis- sioners should be governed. In Rood v, N. Y. & E. R. R. Co., 18 Barb. (N. Y.) 80, it was held that if a party conveyed his land to a raUroad company for the roadway, he cannot afterwards recover for damages caused by fire by operating the road, where no negligence is proved, be- cause of the presumption that the parties had that risk in view when the sale was made, and that part of the consideration paid was intended to cover that risk ; and it has been held by the court that the rule is the same in a case where the title of the railroad company is acquired by an ap- praisal ; that such appraisal and payment of the sum awarded would give as com- plete a title to the railroad company, and the right to use it be as extensive as it is when derived by a conveyance from the owner, and the presumption he equally strong that all such risks had- been in- clnded in the appraisement. C. & N. R. R. Co. w.- Payne, 16 Barb. (N. Y.) 273 ; Matter of Utica, &c. R. R. Co., 56 id. 464 ; Matter of Prospect Park & Coney Island R. R. Co., 13 Hun (N. Y.), 347. The last case of appeal from such an ap- praisement to which our attention has been called, is that of the Matter of Pros- pect V^t\, &c. R. R. Co., ante, — Gilbert, J. , delivered the unanimous opinion of the court at G*neral,Term, in which the rule of damages is laid down in the following language : ' The true inquiry is, what was the whole property from which the railroad was severed fairly worth in the 970 EMINENT DOMAIN. [CHAP. XIV. appears that injustice has been done by the admission of improper evidence. But, as they view the premises, and are presumed to form their opinion largely from their own observation of the situa- tion of the premises, it requires strong evidence of prejudice to a party's interest thereby, to induce the courts to set aside their report because of the admission of evidence not strictly admissible.-' But unless the commissioners, viewers, or jury, who view the premises, are to be governed by the evidence in making up their award or verdict, it would seem to be wholly useless to present it, and it would seem to be the better rule that the award or verdict must be based upon the evidence, as explained and applied by their view of the premises.^ The object of a view of the premises is not necessa- market before the taking, and what was its value with the railroad upon the land taken ? ' This is substantially the opinion given by this court at General Term iu the Matter of the Utica K. R: Co., 58 Barb. (N. Y. ) 4'56 j and the court there say that everything that will depreciate the value of that residue is to be taken into account. If by taking the land ac- quired access to that remaining is more difficult and dangerous; if the land re- maining is located in a city and is valu- able only to be built upon and occupied as a dwelling or for business purposes, and is in such close proximity to the estab- lished tracks of the railroad that the jar- ring has affected the structures, and the, smoke and noise rendered the remaining premises less valuable for use, from which it can be inferred that the same effect will be 'produced by the same cause in future, the market value of the remaining land would thereby be affected, and evidence , showing these circumstances should have been received by the commissioners. The owner's land can only be taken for a pub- lic use. In this case it is proposed to be taken for two additional tracks for this railroad company. To hold that the own- ers shall not be allowed to show fully the condition of the remaining, premises after the additional tracks have been con- structed is really to deprive him of the ability to show what th^ actual market value of such premises is, after the tak- ing, with these additional tracks on the land taken. The whole subject was care- fully and ably discussed by Justice Fos- ter in the Matter of the U. E. B. Co., 56 Barb. (N. Y.) 456, and his reasons for this construction of the' law, are so cogent and convincing that we do not deem it necessary to pursue the subject fuWher." The report was set aside. Walker v. Bos- ton & Maine R. R. Co., 3 Cush. (Mass.) 1 ; Eastern R. R. Co. v. Concord & Ports- mouth R. E. Co., 47 N. H. 108 ; Winne- hiddle v. Penn. E. E. Co., 2 Grant Penn.), 32 ; Piper's Appeal, 32 Cal. 530 ; Yirgi- nia, &c. R. E. Co., 8 Nev. 165 ; Kansas City, &o. B. R. Co. v. Campljell, 62 Mo. 685 ; St. Louis, &c. R. R. Co. ■». Richard- sou, 45 Mo. 466 ; Lee v. Toledo, &c. R. R. Co., B3 id. 178 ; Hannibal & St. Joseph R, R. Co. v. Muder, 49 id. 165 ; Bennett v. Camden, ,&c. R. R. Co., 3 N. J. Eq. 145 J Virginia, &c. R. R. Co. v. El- liott, 5 Nev. 358 ; New Jersey R. R. Co. V. Suydam, 17 N. J. L. 25. 1 Troy & Boston R. R. Co. v. Lee, 13 Barb. (N. Y.) 169 ; In re William & H. Street, 19 Wend. (N. Y.) 678 ; Troy & JBoston R. E. Co. v. Turnpike Co., 16 Barb: fN. Y.) 100 ; Western Pacific E. E. Co. ». Eeed, 35 Cal. 621 ; Virginia, &c. E. E. Co. V. Henry, 8 Nev. 165. In Chicago, &e. E. E. Co. u. Hopkins, 90 111. 316, where the jury went upon the gi'ound to view the premises, the court re- fused to set aside their verdict upon the ground of excessive damages, although the preponderance of the evidence was clearly against such a large assessment. Willing V. Baltimore E. E. Co., 5 Whart. (Penn.) 460. ' Bangor, &o. R. R. Co. d. McComb, 60 SEC 251.J COMMISSIONBBS, YIEWEES, APPEAISEBS, ETC. 971 rily to dispense with evidence as to the damages, but to enable the triers the better to apply the evidence, and Judge of the amount of damage which, according to the evidence, should be allowed. In- deed, except where the statute especially provides therefor, it is within the discretion of the court whether to allow a view or not.^ The commissioners must decide questions as to the admissibility of evidence, as well as regulate the order of proceedings before them ; and unless a fair hearing is given to the, parties, it is a good ground for rejecting their report ;2 and if improper evidence is admitted the Me. 290 ; Harrison v. Iowa Midland R. R. Co., 36 Iowa, 323. If the statute does not otherwise provide, it is held that com- missioners, etc., may make their appraisal from their own view of the premises, and are not obliged to hear evidende, although they may do so in their discretion. Van Wickle V. Camden, &c. E. R. Co., U N. J. L. 162 ; Pennsylvania, R. R. Co. v. ' Keiffer, 22 Penn. St. 356 ; Lyman v. Bur- lington, 22 Vt. 131 Kramer v. Cleveland R. R. Co., 5 Ohio St. 140 ; Virginia R. R. Co. V. Henry, 8 Nev. 165. 1 Kansas Central R. R. Co. ■». Alien, 22 Kan. 485 ; Snow v. Boston & Maine R. R. Co., 65 Me. 230 ; Galena, &c. R. R. Co. V. Haslem, 73 111. 494. 2 Central Pacific K. R. Co. w. Pearson, 35 Cal. 247 ; Washington E. R. Co: v. Swit- zer, 26 Gratt. (Va.) 661 ; Jones v. Goffs- town, 39 N. H. 254 ; Hawley v. North Staffordshire Ry. Co., 2 De G. & S. 33. In estimating the damages caused hy the con.struction of a railroad, evidence that the company had made the petitioner an offer for his damages, is inadmissible. Up- ton V. South Reading Bralnch R. R. Co. 8 Cush. (Mass.XeOO. And such evidence is not admissible to show the priee^aid by the company for land adjoining the land in question, under an award of arbitra- tors mutually agreed-upon to estimate the same. White v. Fitchburg R. R. Co., 4 Cush. (Mass.) 440. Nor is it competent to show for what price one ha^ contracted to buy land adjoining. Chapin v. Boston & Providence E. R. Co, 6 Cush. (Mass.) 422. County commissioners in Massachu- setts, in the exercise of the jurisdiction conferred upon them, relative to the rais- ing or lowering of turnpikes, highways, etc., are required (to make a specific, and not an alternative order. Roxbury v. Boston & Providence R. R. Co., 6 Cush. (Mass. ) 424, A corporation was author- ized, by a statute, to acquire title to lands by appraisement ; and the apprais- ers were required to assess the value of land taken and damages, without de- duction for any benefit ; and the defend- ants, on payment, were to be vested with the fee. The appraisers assessed a certain sum, with a reservation to the owners of the right to open a street, and to drain under the street ; and their certificafe also stated that they had assessed the value and damages without any deductiop. for benefit. It was held that the certificate Should be set aside. They had no power to arbitrate between the parties ; and in at- tempting to reserve privileges to the own- ers by way of easement, in the lands they were to appraise,' they transcended their power, and their award was a nullity. The corporation were entitled to the fee, and the owners to compensation for the fee. Hill v.^ Mohawk & Hudson E. R. Co., 7 N. Y. 152. It is- not necessaiy that the report should state in detail how ' the damages accrued. And it is unneces- sary for report to show afiirmatively the presence of the parties at the time the view is had, or that witnesses were regularly called and sworn. In this respect the presumption is in i favor of the regularity of the viewers, ; and if there is any actual illegality,, the facts sustaining it must be shown. Tucker v. Erie & Northeast R. R. Co., 27 Penn. St. 281. In the ab- sence of any statutory provision, compel- ling payment of compensation to county commissioners for their services performed for the benefit of, a corporation, they have no power to order the company to pay 972 EMINENT DOMAIN. [chap. XIV. proceedings may be quaslied on certiorari} The report must be' made in writing, and should show that the commissioners were under oath, and the amoimt of land taken, and a description thereof, unless it is accurately described in the warrant, and if any errors are made therein they cannot be corrected after it is filed.^ If the statute requires it, the commissioners must view the premises, and their report should show the fact.^ If any irregulkrities were com- mitted by them the report should show them, or the court will not, unless the circumstances warrant it, set the report aside.* If an the cost of their 'expenses and services. Atlantic & St. Lawrence E. E. Co. v. Cum- berland County Commissioners, 28 Me. 112. 1 Petition of Landaff, 34 N. H. 163, especially where it appears that the com- missioners have misapplied the principles upon which they were to make the assess- ment. Troy R. R. Co. v. Northern T. Co., 16 Barb. (N. Y.) 100. 2 People 0). Mott, 12 Hun (N. Y.), 672 ; Hannibal B. E. Co. v. Morton, 27 Mo. 317 ; Hayes v. Shackford, 3 N. H. 10. An accuratedescriptionof thelandisessen- tialto the validity of the assessment. Inre New York Central E. R. Co. 90 N. Y. 342. And it must be contained either in the petition or report of the commissioners, and if there is a defect in this respect the proceedings will be reversed. Penn. R. E. Co. V. Foster, 29 Penn. St. 165. In Walker v. Boston & Maine E. E. Co., 3 Cush. (Mass.) 1, it was held that the warrant issued by county commissioners on the application of a land-pwner, to as- sess damages for lands taken by a railroad company, need not be in any particular form, but should set forth a description oi the land and the owner's title thereto. The report of commissioners or viewers as to the laying out of a railroad must describe the land taken With such deflniteness and ceiiainty that a jury could go upon the land, and' readily discover where the lay- ing out is, or it will be void for uncertainty. Northern R. E. Co. v. Concord & Clare- mont R. R. Co., 27 N. H. 183. ' Albany Northern R. R. Co. v. Lan- sing, 16 Barb. (N. Y.) 68. * Eochester, &c. R. R. Co. v. Beck- with, 10 How. Pr. (N. Y.) 108. Objections to the proceedings before a sheriff's jury impanelled to assess damages, or of commis- sioners for land taken for a highway or railroad, cannot be taken advantage of on appeal unless the grounds of such objec- tion appear on the record. Walker v. Boston & Maine Railroad, 3 Cush. (Mass.) 1. But evidence given before viewers ap- pointed to assess damages done by the location and construction of a railroad through the lands of an individual will not be noticed by the Supreme Court, as it constitutes no part of the record. Ohio & Pennsylvania R. R. Co. v. Bradford, 19 Penn. St. 363. On an appeal from a judg- ment, accepting the verdict of a sheriff's jury impanelled to revise the estimate of county commissioners on an application for damages occasioned by the laying out of a railroad, it cannot be objected that the commissioners had no jurisdiction, by reason of the parties having agreed to re- fer the damages to arbitration ; but such objection, if relied upon, must be taken before the commissioDers as a ground for not ordering a jury. Field v. Vehnont &. Massachusetts R. R. Co., 4 Cush. (Mass.) 150. If commissioners have adopted and acted upon illegal principles in making their valuation of the land, and assessing damages, the proceedings will be set aside. But it is not competent for the court to determine the amount of damages on the merits when the commissioners assessed the damages upon the right principle. New Jersey R. E. So. Co. v. Suydara, 17 N. J. 'F.c[. 25. Under a statute providing to the contrary, an award of arbitrators which takes into consideration the benefit which a land-owner may receive from the construction of a railroad, in a proceeding for damages against such a corporation, is , illegal'. McMahon v. Cincinnati, &e. R. R. SEC. 251.] COMMISSIONEES, VIEWEES, APPEAISEES, ETC. 973 appeal is allowed by statute, and no provision is made by statute for preserving the rulings of the commissioners, etc., they may be proved How. Pr. (N. Y.) 467. If the proceed- ings of commissiouers have been regular, \ and they only erred in judgment in fixing the amount of damages for the lands taken, the courts cannot interfere. Wiggiu v. Mayor, &c. of N. Y., 9 Paige (N. Y.), 16. As a general rule, reviews of the report of such commissioners can extend to matter of principle only, and not to mere ques- tions of value. Matter of Furman Street, 17 Wend. (N. Y.) 649 ; Matter of John & Cherry Streets, 19 id. 659. The courts caiinot, in general, revise the assessment xipon its merits, and set it aside, upon the mere ground of inadequacy, or excess qf damages. Willing v. Baltimore Railway, 5 Whart. (Penn.) 460 ; Tonica, &e. R. R. Co. V. 0nlicker, 22 111. 221 ; Tonioa, &c. E. R. Co. V. Roberts, 22 111. 224 ; Rail- road V. Gesner, 20 Penn. 240 ; Winebiddle V. Pennsylvania R. R. Co., 2 Grant's Cas. (Penn.) 32. Bradshaw, &o. K. R. Co., in re, 12 Jur. 998. But it is now well estab- lished that an award may be set aside for excessive damages. Somerville & Easton Railroad v. Doughty, 22 N. J. Eq. 495. An adjudication condemning lands for the use of a corporation cannot be impeached in a collateral proceeding. Hamilton v. Annapolis R. R. Co., 1 Md. Ch. Dec. 107; Evans v. Haefner, 29 Mo. 141. The owner is entitled to payment of the damages awarded when the assessment has been made and confirmed; and without wait- ing until the company actually take pos- session. Shaw V. Charlestown, 3 Allen (Mass.), 538; N^alw. Pittsburgh, &c. R. R. Co., 31 Penn. St. 19. Where a railway company agreed with the land-owner that the question of compensation should he settled by arbitration, and thereupon en- ^ tered upon the land by consent of the owner, and the arbitrator made an award which became the subject of dispute, and the owner thereupon gave the company notice to quit, and brought ejectment, it was held that he could not recover, although the company had not tendered the money awarded, or a conveyance, but that the owner's remedy was to proceed upon the award. The notice to quit under the cir- cumstances did not make the company Co., 5 Ind. 413 ; Newcastle & Richmond R. R. Co. V. Brumbaok, 5 Ind. 543 ; Ev- ausvifle, &o. R. R. Co. v. Fitzpatrick, 10 Ind. 120 ; Evansville, &o. R. E. Co. v. Cochran, 10 Ind. 560. A verdict of a jury will be set aside when it appears to the court that injustice has been done through mistake or misapprehension of the jury. Cadmus v. Centi'al E. R, Co. of New Jersey, 31 N. J. Law, 179. A plank- road company authorized to construct their road between two designated points, and to use any portion of the highiifays for such purpose when necessary, are bound, in eases where such necessity ex- ists, by their charter, to pay the damages resultmg from the appropriation of the highway, to be ascertained in the manner pointed out in the charter, and any depart- ure from the directions therein contained, or fraudulent or collusive acts on the part of the company, in relation to the assess- ment, will -vitiate the whole proceeding, and subject them to injunction. Justices &c. V. Griffin & West Point Plank-Eoad Co., 9 Ga. 475. But the courts will not set aside the award of commissioners ex- cept for svAstantial error. The commis- sioners are bound to be guided in their proceedings by the established rules of evi- dence, but a technical error in this respect will be disregarded. Otherwise, if the error is of such a character as to show that the commissioners have mistaken the prin- ciples that should govern their appraisal, and that the appellant may have been wronged by it. Troy & Boston E. E. Co. V. Northern Turnpike Co., 16 Barb. (N.Y.) 100 ; N.Y. Central R. E. Co. v. Marvin, 11 N. Y. 276 ; Walker v. Boston & Maine E. E. Co. 3 Cush. (Mass. ) 1. If the court is satisfied that the commissiouers have not erred in the principles of their ap- praisement, no other eiTor will suffice to induce them to send the report back for review. Troy & Boston E. E. Co. v. Lee, 13 Barb. (N. Y.) 169. And the court will not interfere upon the ground that the amount of damages awarded was too small or too, great, unless the evidence of injustice is palpable on its face. Boches- ter & Syracuse E. E. Co. v. Budlong, 6 974 EMINENT DOMAIN. [CHAP. XIV. by parol, but. wliere the statute makes provision therefor, exceptions should be filed, and the rulings and irregularities brought to the at- tention of the court through that means.^ The commissioners may report the testimony, and when the statute requires that they shall "report their proceedings," they should not only report the testimony, but also all their rulings upon the admissibility of evidence, etc.^ Either party may except to the report, move to recommit or to quash it, and may support their objections by affidavits, etc., unless the statiite makes the action of the commissioners finaL^ All rea- 35 Cal. 247 j Virginia E. Co. v. Henry, 8 Nev. 165. ! Quinoy R. E. Co. v. Ridge, 57 Mo. 599. "Where, on an application to set aside the report of commissioners, it ap- pears that they had talked privately with a person from whom they had ottained information discrediting the testimony of the claimant, and that the award to him was greatly inadequate, and that the ne- glect to oppose the conflnnation of the report arose from the neglect or misbe- havior of his attorney upon whom the notice of motion was served, it was held that the report was properly set aside. New York Central & Hudson Kiver R. R. Co., fo re, 5 Hun (N. Y.), 106; 64 N. Y. 60. In K[ew York, the Supreme Court at special term has power to set aside a report and to appoint commissioners. The owner is not confined to the remedy by appeal to the General Term given by the general rail- road act. New York Central & Hudson Eiver R. R. Co., in re, 64 N. Y. 60 ; 5 Hun (N. Y.), 105. The court has power to set aside the report of viewers when the sum allowed was exorbitant, but the error must be clearly made out. Patten v. Sus- quehanna R. R. Co., 1 Pearson (Pa.), 48. In Kentucky, the Supreme Court has juris- diction of an apjwal from a judgment con- firming the verdict of a jury in proceedings under writs of ad quod damnum, had at the instance of the appellee, to condemn a part of appellant's laud for railway pur- poses. Tracy v. Elizabethtown, Lexing- ton, & Big Sandy R. R. Co., 78 Ky. 309. In reviewing proceedings for the condemnar tion of lands, the appellate court cannot consider any reasons against the confirm- ation of the report except those which were presented to the lower court. Detroit Hudson V. Leeds & Bradford Ry. Co., 15 Jur. 946. Where it is shown that the party has, upon considei'ation, agreed to receive compensation in a partic- ular mode, ^quity will enjoin him from taking proceedings under the statute, to compel payment. , Duke of Norfolk v, Tennant, 16 Jur. 398. When the com- pany neglects or refuses to pay for land condemned for their use, the owner may have, an injunction to protect his property from injury until the money is paid. Har- ness V. Chesapeake & Ohio Canal Co., 1 Md. Ch. Dee. 248. The acceptance of land damages, whether fixed by agreement or a verdict, without objection to the right to take, estops the party from afterwards disputing that right. Burns v. Milwau- kee & Mississippi R. R. Co., 9 Wis. 450. But where a railrbad company had author- ity to take land one hundred feet in width, and beyond that so much' as might be necessary for depots, etc., and under this authority took a lot in a city, part of which was beyond the one hundred feet, and the owner appealed from the award of the com- missioners, and had judgment fixing the value of the land taken and described in the pleadings, which judgment was duly ■paid, it was held that the owner was now estopped from claiming any part of the lot from the railroad company. Bums v. Dodge, 9. Wis. 458. A tender, within the .statute time, of the amount appraised, made to a party who acted in the proceed- ings for his co-tenants, by their authority, is sufficient. Dyckman v. Mayor, &o. of N. Y. 7 Barb. (N. Y.) 498 ; aff'd 5 N. Y. 434. 1 Allen D. Androscoggin R. R. Cb., 60 tie. 494. s Central Pacific R. R. Co. v. Pearson, SEC. 251.J COMMISSIONERS, VIEWERS, APPRAISERS, ETC. 975 sonable presumptions are made in favor of the regularity and correct- ness of the report, and it will be sustained until good' ground for quashing or reversing it is shown,^ as that the damages awarded are uureasonaTDly large, or small,^ or that the commissioners committed Western Transit & Junction R. R. Co. v. Crane, 50 Mich. 182. An appeal lies, directly from the County Court to the Supreme Court. Kankakee & Seneca E. R. Co. V. Straut, 101 111. 653. But the Su- preme Court lias no jurisdiction to enter- tain an appeal in special cases, and a pro- ceeding to condemn land for the use of a railway company is a special case. Stock- ton & Copperopolis E. R. Co. v. Galgiani, 49 Cal. 139. An application for a jury to assess damages in Boston cannot be made to the Superior Court at a time later than the next one after the commissioner's esti- mate is made kno^u to the parties. Rob- erts V. Boston & Lowell E. E. Co-j US Mass. 57. A motion to dismiss an appeal because the appeal is not taken in time will not be considered where the motion to dismiss is made too late. St. Louis, Kansas, & Arizona R. R. Co. v. Quinn, 24 Kans. 370. The commissioners made sep- arate awards in favor of the respondents as owners, and one K. as mortgagee. Re- spondents appealed from the award as re- spected their damages, but K. did not. ' Pending the appeal, K. became the owner of the property by a foreclosure of his mortgage and the expiraition of the period for redemption, but no steps were taken for a substitution of parties to the record by reason thereof. It was held that on the trial of such appeal before the jury the sole question for its determination was the propriety of the amount awarded by the commissioners to respondents as compen- sation for their interest and estate in the property, so far as it was injuriously af- fected or taken by the company ; and that such compensation must be ascertained by the jury in reference to the same estate and interest, and as of the same time, as was done by the commissioners in making their award. Trogden v. Winona & St. Peter R. E. Co., 22 Minn., 198. In an appeal by a railway company, where the issue was in the form of trespass guare clausum fregit, the court charged that the company had committed a trespass in en- tering on the land. It was held to be error. Shenango & Allegheny R. R. Co. V. Braham, 79 Penn. St. 447. A trial having commenced at one term of court cannot be completed^ a subsequent term. Wright V, Northwestern Union R. E. Co., 37 Wis. 391. Where the verdict rendered upon the trial of an appeal from an' award of commissioners is for a gross sum as damages, but is silent as to the time when such damages accrued, the presumption is that the verdict,' in this respect, relates to the time when the award appealed from was filed by the commissioners. Whitacre V. St. Paiil & Sioux City B. R. Co., 24 Minn. 311. ,A judgment condemning a strip of land one hundred and twenty feet wide for a right of way for a railway will not be reversed because the laud con- demned exceeds one hundred feet in width, when it does not appear from the record that the additional twenty feet was not necessary, nor by the pleadings, and no such objection was raised, before the court below, either by demurrer or reasons as- signed in arrest of judgment. The objec- tion, not being made below, must be considered as waived. Booker v. Venice & Carondelet R. R. Co., 101 111. 333. 1 Cyr ■». Dufur, 62 Me. 20; Pennsyl- vania R. R. Co. -a. Porter, 29 Penn. St. 166 ; Crawford v. Valley R. R. Co., 25 Gratt. (Va. ) 467 ; Commissioners of Cen- tral Park, 4 Lans. (N. Y.) 467. ^ Chapman v. Groves, 8 Blackf. (Ind.) 308. In Michigan, the Probate Court has authority to set aside the report of the commissioners for good causes shown. If the amount awarded is unreasonable, and indicates that it was the result of prejudice or partiality, or that the commissioners must have acted upon a wrong basis of estimating the damages, it is a good cause for setting aside the report. Chapman v. Groves, 8 Blackf. (Ind.) 308. Evidence as to the value of the property condemned and the resulting damages, while admissi- ble, is not controlling ; they are the opin- ions of witnesses simply, and should not 976 EMINENT DOMAIN. [OHAP. XIV- gross errors in the principles of assessing or in calculating the values.' But where the commissioners viewed the premises, and the evidence as to the damages was conflicting, the report will not he set aside eitlier because the damages were assessed at a larger or a smaller sum than the court itself would have assessed them.* - An ordinarily have greater weight than tlie official report of the commissioners who have considered all the evidence. Eastern E. R, Co. V. Concord, &c. E. E. Co., 47 N. H. 108. Numerous courts have held that the reports of commissioners may be impeached for partiality, bias, prejudice, or inattention or unfaithfuhiess in the dis- charge of their trust, or for error of such extraordinary character or grossness as should furnish a just inference of the ex- istence of such influences. Mills, Em. Dom., § 234, and cases cited in note 7. Commissioners exercise important func- tions and pass upon valuable rights, and should be free from "prejudice or undue influence. In Peavy v. Wolfboro, 37 N. H. 286, it was held that they should not converse or discuss with one party in the absence of the other upon the subject under consideration ; and in another case the furnishing of liquor by a petitioner for a highway to the commissioners, while engaged iu their duties, was held an abuse for which the court would ordinarily set aside a report in favor of the petitioner without inquiring how far the commission- ers were affected by it. Newport High- way, 48 N. H. 433. In this case an affidavit of one of the commissioners was iiled in support of the motion to set aside the report. This was proper. The com- missioners are not like a common-law jury, and their own affidavits may be used to impeach their finding, or show that they proceeded upon a wrong principle in the ascertainment of damages. The rule on , which they act is a fact, and may be shown as any other fact. Canal Bank v, Albany, 9 Wend. (N. Y.) 244 ; New Jer- sey E. & T. Co. v. Suydam, 17 N. J. L. 25. All parties are entitled to the intelli- gent judgment of the commissioners upon the appraisement of damages, and any agi-eement in advance which shall leave the amount as the result of chance cannot be upheld. In the case of Kansas City, &c. E, B. Co. V. Campbell, 62 Mo. 686, the three commissioners put down the amount respectively determined on by them, and divided the sum by three, and returned the quotient as the result, and the finding was set aside by the Supreme Court. See also to the same effect Don- ner i). Palmer, 28 Cal. 40 ; Ruble v. Mc- Donald, 7 Iowa, 90 ; Birchard v. Booth, 4 Wis. 67 ; Denton v. Lewis, 1 5 Iowa, '801 ; St. Martin v. Desnoyer, 1 Minn. 166 (Gil. 181); Forbes D. Howard, 4 E. I. 364 ; Marquette H. & 0. B. R. Co. v. Houghton, Michigan Superior Court, 1884. 1 Carter v. New Jersey E. E. Co., 24 N. J. L. 780 ; Matter of Beale Street, 39 Cal. 495 ; New Jersey E. E. Co. v. Suy- dam, 17 N. J. L. 25 ; Eeitanbaugh v. Chester R. E. Co., 21 Penn. St. 100 ; Chesapeake E. E. Co. v. Park, 6 W. Va. 897.'< 2 Western Pacific E. E. Co. v. Eeed, 85 Cal. 621 ; Thompson v. Conway, 68 N. H. 622 ; Eoudout E. K. Co. v. Field, ' 38 How. Pr. (N. Y.)l87; Pennsylvania E. E. Co. V. Heister, ,8 Penn. St. 446 ;, Albany E. E. Co. v. Dayton, 10 Abb. Pr. (N. Y.) U. S. 182 ; Antoinette Street, 8 Phila. (Penn.) 461. An award which re- quires a railway company to pay a certain sum of money for a right of way, and to build fences, the money to be paid at any time fixed upon by the company, by giving the land-owner three days' notice of the time and place of payment, and requires the land-owner at the same time to deliver to the company a deed for the right of way, is void for uncertainty as to the time for the payment of the money and the delivery of the deed. Alfred v. Kankakee & Southwestern E. E. Co., 92 111. 609. Where the report of commissioners has been set aside hy the general term, on the ground that they erred in only awarding nominal damages to the owners, and a new set of commissioners has been appointed who have made their report, by which nominal damages only are awarded to the owners, the cpurt will not, in the absence SEO. 251.] COMMISSIONERS, VIEWERS, APPRAISERS, ETC. 977 itemized report may be directed by tbe court, and if improper items are iacluded in it the court may strike them out.^ But where either of fraud, corruption, misconduct, or mis- apprehension, set aside the last report and appoint a new set of commissioners. Pros- pect Park & Conej Island E. R. Co., in re, 24 Hun (K Y.), 199; 85 N. Y. 489. "Where the damages aie grosslj- excessive, the court, below may set aside the report of the viewers. Philadelphia & Erie Pi. E. Co. «. Cake, 95 Penn. St. 139. A defence based on matters of fact as to liajbility to pay interest on an award on proceedings to condemn land, available on a trial by jury, but as to which no evidence was offered, nor any request made to the judge to admit any evidence respecting it, though he directed the jury to find against the defendant as to the interest, which direc- tion was considered and sustained, and the - liability specially found against the de- fendant on review by a court of law of competent jurisdiction, cannot be made the ground of relief in a court of equity. , Metier v. Easton & Amboy R. E. Co., 26 ' N. J. Eq. 65. The judgment does not fix the rights of the company absolutely to the land. It is the tender of payment and the yielding of possession which fixes the rights of the parties. Williams v. New Qj'leans, -Mobile, & Texas E. R. Co:, 60 Miss. 689. A railway company seeking the condemnation of a part of a lot for the" purposes of the road has no cause to com- plain of an order of court fixing the com- pensation to be paid, and directing the money to be paid to the treasurer of the county for the benefit of the owners o^ the property affected, or those interested in it. Such an order does not determine who is ■ entitled' to the compensation aWarded. Chicago & Western Indiana R. E. Co. v. Prussing, 96 111. 203; In aU cases 'of eondsmnation, the owner of lands is en- titled to a personal judgment against the company or party instituting the pro- ceedings for the damages awarded. Eob- bins V. St. Paul, &c. R. E. Co., 24 Minn. 191. But in West Virginia, in a' proceeding by a railway company 'to take lands for the use of its road, against the owner of the land, it is error for the court, on confirming the report of the coraniissionerjB and ordering the same to be recorded, to render judgment against the applicant for tlie amount of damages ascertained by the report.' Chesapeake & Ohio R. R. Co. V. Bradford, 6 W. Va. '220. In Minnesota, it is held that the judgment authorized to be entered on a verdict is one not only settling and de- claring the right of the company seeking to appropriate the pi'operty to the use thereof, upon payment made, hut also in favor of the land-owner for the amount of compensation as found by the verdict, and adjudging and declaring his absolute right thereto. Curtis v. St. Paul, Stillwater, & • Taylor's Falls R. R. Co., 21 Minn. 497. Where the court has entered judgment upon the award, this judgment is a final adjudication of the controversy until set aside by the court or reversed ty writ of error. Pennsylvania R. E. Co. v. Gor' such, 84 Penn. St. 411. It is not neces- sary, in rendering judgment in favor of a land-ownCr for the damages assessed, to provide that a deed shall be executed to the railway company for the land con- demned. The it forbade the orator to pay B. the sura so deposited, because it had taken but a small portion of the lands of B. for which damages were awarded, and had damaged the lands to a much less extent than the amount of the damages awarded. B. claimed the deposit, and demanded it of the orator, and upon its refusal to pay the same to him, brought suit at law therefor. The orator claimed no interest in the fund other than as stakeholder. It was held that the orator could sustain a bill of interpleader against the defendants in respect to the fund. First National Bank of Brattleboro v. West River E. R. Co., 46 Vt., 633 ; 49 id. 167. The land which a railway company - claimed to take for a gi-avel-pit was de- scribed in its petition to the railway com- missioners as comprised within a space of 982 EMINENT DOMAIN. [CHAP. XIV. to be assessed by a Sheriff's jury, the same rules as to qualification, proceedings, etc., apply as in the case of commissioners, unless spe- fifteen rods square ; the land condemned by the commissioners for that purpose was not comprised within that limit. It was held that they had no 'power to condemn land not described in the petition ; and in so doing they exceeded their jurisdiction. Spofford V. Bucksport & Bangor E. R. Co., 66 Me. 26. In an inquisition of damages the schedule mentioned adwell- ing, and it was held that this description included the yard and garden. Taylor V. Clemsou, 2 Q. B. 978. Where con- demnation notices described the land as a certain number of feet on each side of the centre line of the i-ailroad, ''as the same is located, staked, and marked," it was held that this description was suffi- cient, and if any other parts of the^ de- scription differed therefrom they must yield to the visible designation. Lower i>,. Chicago, Barlington, & Quinoy K. R. Co., 59 Iowa, 563. The petition; under the statute, must contain such a descrip- tion of the land sought to be condemned as will show its location and the bounda- ries thereof. A defective description can- iiot be remedied b^ a reference in the petition to a deed. New York Central & Hudson River R. E. Co., in re, 70 N. Y. 191. Op appeal, a railway company may, by a disclaimer, dismiss proceedings insti- tuted by it for condemnation of lands. In such a case the cos,t3 must be taxed to the company. St. Louis, Ft. Scott, &'■ Wichita R. R. Co. v. Martin, 29 Kans. 760 ; 10 Am. & Bng. R., R. Gas. 614. The commissioners should hear all legal and relevant testimony offered by either party, bearing upon the question of compensation. Washington, Cincinnati, &,St. Louis R. R. Co. v. Switzer, 26 Gratt. (Va.) 661. Where a petition is filed to condemn land, and there is no cross-petition to include other land with it, it is improper to permit evidence to be introduced in regard to land adjoining that described in the petition and belong- ing to the same owner. Peoria, Atlanta, & Decatur R. R. Co. ■». Sawyer, 71 111. 861. If a proceeding may be dismissed, on the motion of the land-owner, because the instrument of appropriation deposited with the clerk is not signed by any per- son in behalf of the railway company as required by statute, such objection will -be waived if not made until a late stage of the proceeding. Logansport, &c. R. R. Co. V. Buchanan, 52 Ind. 163. There is no error in the exclusion of testimony for the purpose of sustaining the commis- sioners' report, to the effect that they were instructed in their duties by the ad- verse attorneys. The matters of inquiry for the court are : What did the commis- sioners do in fact, and upon what prin- ciples did they arrive at the conclusions reported ? Nothing appearing in the record to show how this inquiry was con- ducted, the action of the court below, in setting aside the report, will be presumed correct. Quiiicy, Missouri, & Pacific R. E. Co. V. Ridge, 57 Mo. 599. In a proceeding to condemn land under a spe- cial statute which passed the fee in the land taken, upon payment of the damages as- sessed, and which required the court to ren- der judgment upon the report of the com- missioners in case no appeal was taken from their assessment, both parties ap- pealed, and a trial was had, and the com- pany procured a reversal for error. The land-owner having died, the cause was re- docketed in the name of his adminstTator, the company's appeal dismissed for want oT prosecution, and thereupon theadminis- trator dismissed the appeal of his in- testate, electing to take the damages as found by the commissioners, which had, been deposited.,, It was held that as the fee in the land 'descended to the intestate's heirs-at-law, they should have been made parties, so as . to conclude them by the judgment ; and for the error in not mak; ing them parties the judgment of the court was reversed. Peoria & Rook Island R. E. Co. V. Rice, 75 111. 329. Damages resulting to the remainder of the tract not taken, on account of the shape in which it will be left, or of the effect of an embankment built along the track, or from cutting off the front from a county road, so as to injure the sale for building- sites, are not special damages, and may be proved without being set up in the SEC. 251.] COMMISSIONEES, VIEWERS, APPRAISERS, ETC. cific changes are made by statute. If the statute merely provides that the damages shall be assessed by a jury, to be drawn by a sheriff answer. Nortli Pacific E. E. Co. li. Eeynolds, -50 Cal. 90. There is no rule of law or practice authorizing the filing of an answer of any kind to a petition for the condemnation of land. If one is fUed, the eom-t may properly have the same stricken from the files. Smith v. Chicago & Western Indiana R. E. Co., 105 111. 511. An application for a writ to assess damages, must be in writing ; and such application constitutes a com plaint to which objection may be made as in ordi- nary proceedings. Church v. Grand Bapids & Indiana E. E. Co., 70 Ind. 161. Proceedings to condemn land for railway uses are special, and unlike ordinary trials at law ; the inquest may be con- ducted by commissioners or a jury without the aid of counsel, so that the practice must be simple, and a large discretion allowed in admitting or rejecting testi- mony. Port Huron & Southwestern B. R. Co. V. Voorhees, 30 Mich. 503 ; East Ten- nessee, &c. R. R. Co. V. Burnett, 11 Lea (Tenn.), 525; Camp v. Coal Creek, &o. R. R. Co., id. 70S. The railway company has the right to open and close. McReyn- olds V. Baltimore & Ohio B. R. Co., 106 111. 152. Upon exceptions filed to the report of commissioners, the court should review by evidence the action of the com- missioners, and supervise their finding so " as to do subltantial justice. The court may approve or reject their report, but cannot g.lter it. Mississippi River Bridge Co. V. Ring, 58 Mo. 491. Wliere^a peti- ytion to condemn land for a right of way describes only one tract of land of the de- fendant's faiTU, which is cut olf from the rest of the farm, and damages are assessed only in respect to tbat-traet, the owner may afterwards cause the damages to be assessed as to the balance of the land. Galena & Southern Wisconsin E. R. Co. V. Birkbeck, 70 111. 208. A statute au- thorized a railway company to take a parcel of land after thirty days' notice, and provided that all general statutes re- lating to the location of railways should govern the taking. It was held that the location over the land might be filed be- fore the expiration of the thirty days. Extern R. B. Co. v. -Boston & Maine R. B. Co., Ill Mass. 125. An assessment qf damages in proceedings to condemn lands is void if the land is not lawfully condemned. Detroit, Monroe, & Toledo E. R. Co. ■•). Detroit, 49 Mich. 47. A report of commissioners, providing that the party defendant shall have the liberty of constructing certain easements over the land taken by the company, is erro- neous upon its face, although olierwise in conformity to the statute, and may be set aside on motion of the defendant. Rail- road Co. V. Halstead, 7 West Va. 301. Where a railway company duly condemned a right of way, which included the plain- tiff's lot, and without paying the award entered thereon, but did not actually occupy any portion of plaintiff's property or disturb the^fenoe around it, it-was held that the company had not made such an appropriation of the property as to have been guilty of a tort, and that it was riot liable to pay the award. Dimmick v. Council Bluffs & St. Louis R. R.'Co,, 58 Iowa, 637. Proceedings were had to con- demn land, which were regular except that the commissioners awarded a gross sum as compensation to all of six lot- owners, who held in severalty, without specifying the, sum to which each was entitled. The company paid the money into court, and nothing further was done in the proceeding. It was held that the condemnation proceeding being ended, and not pending so fis to permit the award to be corrected at the instance of either party, it was without any effect upon the rights of the parties. Such proceedings were void. Busch v. Milwaukee, Lake Shore, & Western B. E. Co., 54 Wis. 136. Where commis- sioners assessed the damages in, view of the tract taken altogether, but under- stated the quantity of the land by a fraction of an acre, ii was held that it did not invalidate their action. Morgan v. Chicago & Northeastern R. E. Co., 39 Mich. 675. Under the statute authoriz- ing the Eastern E. B. Co, to take land for a freight-station, and providing that the genpral statute shall govern the pro- 984 EMINENT DOMAIN. [CHAP. XIV, or constable, a jury of twelve persons are required, and their verdict is required to be unanimous, and they should be drawn according to the method provided by statute for the drawing of juries in ordinary cases.^ But where the statute makes specific provisions in these respects, it must be strictly followed. The jury should be sworn.^ If the statute makes no provision in that respect, the parties are entitled to the same challenges, which must be taken in the same way as in ordinary cases.^ The jury are entitled to the same privileges and subject to the same rules relative to the admission of evidence as commissioners are, and are not subject to the strict rules of law in that respect.* If the jury fail to agree, a new jury must be sum- moned.^ But in New York the verdict of a majority is held suffi- cient.* The verdict may be itemized,^ and according to some of the • cases may contain conditions reqxiiring the company to remove build- ings, etc. ; ^ but such conditions can only be imposed when the party to be affected thereby assents thereto.* The verdict must be for a certain sum payable in money, and cannot be to the eifect that the company shall perform certain acts in compensation for the injury.^" The same rules as to setting aside the verdict of a jury prevail as exist in' reference to setting aside the report of commissioners, etc. Proceedings to condemn land are, while an appeal is pending and ceedingB, except that,, instead of the Clark, 23 Mich. 519; Fowler v. Middle- county commissioners, three oonnnissioners sex, 6 Allen (Mass.), 92; Molett. o. shall be appointed by the court to adjudi- Keenan, 22 Ala. 484 ; Walker i». Boston, eatethe damages, from whose decision " an &c. K. R. Co., 8 Cush. (Mass.) 1. appeal to the jury shall lie " in behalf of * Coster v. New Jersey R. R. Co., 24 any owner of land taken, " as is provided N. J. L. 780; Columbia Bridge Co. v. in cases of lands taken for railroad pur- Geisse, 86 id. 537. poses," the award of commissioners so ^ Hicks v. Foster, 32 6a. 414 ; Chi- appointed is to be returned to the court ; cago, &c. R. R. Co. v. Sanford, 23 Mich, and the application for a jury, by way of 418. appeal from their decision, is to be made, ' Astor i>. New York, 5 J. & S. (N. Y. and the trial by jury had, at the bar of Superior Court) 539. this court. "Wyman v. Eastern E. E. Co., ^ Fitchburg R. R. v. Boston, &c. E. R. 128 Mass. 846. . Co., 8 Cash. (Mass.) 58. 1 Meacham v. Fitchburg R. R. Co., 4 8 Omaha R. R. Co. v: Menk, 4 Neb. Cush. (Mass.) 291. Where the statute 21 ; Dwightu. Springfield, 6 Gray (Mass.), makes provision for six jurors, the parties 442. by going to trial with a less number ' Central E. E. Co. v. Heller, 7 Ohio waive the irregularity. Avery v. Groton, St. 220 ; Chicago, &o. R. R. Co. v. Mel- 36 Conn. 304. ville, 66 111. 820 ; Hill v. Mohawk R, R. 2 Lumsden v. Milwaukee, 8 Wis. 485 ; Co., 7 N. Y- 152 ; Chesapeake E. E. Eockford E. E. Co. v. McKinley, 64 111. Co. v. Patton, 6 W. Va. 147. 338 ; Owen v. Jordan, 27 Ala. 608. w N. 0. Pacific E. E. Co. v. Murrell, ' Converse v. Grand Rapids R. R. Co., 34 La, An. 536. 18 Mich. 469 ; Mansfield R. R. Co. v. SEC. 251.J COMMISSIONERS, VIEWERS, APPRAISERS, ETC. 985 until the valuation is paid, in the nature of an executory contract to buy laud. If in the mean time the corporation becomes insolvent, and a new company is formed, which succeeds to its rights, the last company cannot claim the rights of a bona fide purchaser, nor set up adverse possession, or the statute of limitations,^ as in this re- spect, it stands in the same position as an individual would in refer- ence to such matters, and being in possession under the original company, it can claim no greater or better title than its grantor had, and, as the original company held as a licensee, both it and its grantees are estopped from denying the title of the licensor. The remedy of the new company would be by a purchase of the land, or its con- demnation under the statute. In such cases, the value of the land is to be estimated as it was at the time when the original company went into possession. The rule in such cases is that where a rail- way company has been permitted by the owner to enter into possesr sion and construct its tracks without first paying the compensation therefor, in subsequent proceedings to condemn the land, the measure of compensation is the value pf the land and damages at the time of entry with interest, irrespective of the value of the improvements subsequently put upon it.^ The value of the road structure put upon the land is not in such cases to be considered.^ But a different rule prevails where the company entered into a contract for the purchase of the land which it has not performed upon its part, and in such a case, if the company afterwards seeks to condemn the land, its actual value, including the value of the improvements placed thereon, is the true measure of compensation,* and its grantees stand in the same relation to the land as the original company, and are subject to the same rules and liabilities. The land-owner and the Qompany may agree upon the amount of the damages, or they may agree that the amount of dama,ges shall be ascertained in a different mode from that provided in the statute, and such agreement is valid and binding upon both parties,^ and where the company is let into possession under it, before the dam- ages are ascertained, specific performance will be compelled hy a court of equity,® if the party seeking such specific performance has , 1 Cillison V. Savannah, &o. E, E. Co., * Aspinwall u. Chicago, &c. E. E. Go.^ 7 S. C. 173; Biickner v. Savannah E. E. 41 Wis. Hi. Co., 7 id. 325. ' Botkin v. Livingston, 16 Kan. 39. » North Hudson Co. E. E. Co. v. Boor- « Chicago, &c. E. E. Co. v. Swinney, man, 28 N. J. Eq. 450. 38 Iowa 182. * Emerson v. Western Union E. B. Co., 75 111. 176, VOL. II. ^ 12 EMINENT DOMAIN. [CHAP. XIV, performed the agreement upon his part so as to be entitled to invoke the aid of a court of equity. If the parties do not agree upon the damages, and proceedings for the condemnation of the land are brought, the jury or viewers must be disinterested men ; but a report will not be set aside because one of them had a claim against the company for damages for altering a county road so as to pass through his land. Those persons only are disqualified from acting as viewers whose property immediately adjoins the railroad.^ Neither does the fact that a viewer has ex- pressed an opinion as to a former and somewhat similar case render him ' incompetent to serve on the view ; the party waives objection to a viewer by appearing at the hearing.^ But one who has given his note to a railway company, to aid in the construction of its road, is disqualified as a juror in proceedings to condemn lands for its right of way. This disqualification cannot be removed by agree- ment of parties.^ But a subscriber to a railway aid fund, who takes no stock in the road, acquires no legal interest in another projected road from the mere fact that it is to be leased to the road which he has aided, and is not thereby disqualified as, a juror in proceedings to condemn lands, for the use of the latter road.* A motion to set aside the verdict of the jury must be addressed to and adjudicated by the court in which the verdict is rendered.^ Where a jury is required merely to determine the damages for taking property for a railway, a finding in general terms is sufficient, and it need not,specify the amount allowed for each item of injury. The presumption is that all evident facts bearing on the amount of damages were taken into account.® In condemnation proceedings the compensation to be ascertained by the jury for the taking of the land must be, in terms, money ; the jury have no power to prescribe the performance of other acts by the petitioners, such as fencing the road, making crossings, etc.^ Sec. 252. Parties to ProceedingB. — As to the proper party to initiate the proceedings to condemn, the rule broadly stated is that the company authorized to construct the road for the use of which 1 Newtecker v. Susqueliatina R. Co., 1 ' Burr ». Buokspnrt R. Co., 61 Me. Pearson (Pa.), 67. 130. * Gingrich v. Hanisburg, &c. R. Co., ' Michigan Air Line R. Co. v. Barnes, 1 Pearson (Pa.), 74. 44 Mich. 222. ' Michigan Air Line B. Co. v, Barnes, ' Chicago, &o. R. Co. ». Melville, 66 40 Mich. 388. 111. 329 ; Toledo, &c. R. Co. v. Munson, * Detroit Western Transit Co. v. Crane, 67 Mich. 42 ; Chesapeake, &c. B. Co. v. 60 Mich. 182. Patton, 6 W. Va. 147. SEC. 252.] PARTIES TO PE00EBDIN6S. 987 the land is being condemned, is the propey party. If after com- mencing the construction of the road the original company sells all its interests and franchises to a second company, it is still the proper party to institute condemnation proceedings.^ It is incumbent on a railroad company petitioning for condem- nation of the right of way to ascertain the owners of the land and make them parties to the proceedings ; and by selecting the parties against, whom it proceeds it admits their ownership.^ In the ab- sence of any statutory provision there seems to be no good reason why all persons who sustain damage from the taking of their lands, in a town or county, may not be joined in proceedings brought by the railway company to have the damages assessed; but each owner would be entitled to a separate assessment or verdict for his par- ticular damage.^ When, however, the land-owner is authorized to bring proceedings, only those who are jointly interested in the land in question can join therein;* and in proceedings brought by the company, they may and generally should be joined as defendants ;^ 1 Gory i>. Chicago, &c. R. Co., 100 Mo. 282 ; 44 Am. & Eng. R. Cas. 183. The fact that proceedings to condemn were commenced and prosecuted by the lessee of the road, but. in the name of the lessor, is not a sufficient ground for an in- junction to_ restrain proceedings. Gotts- chalk V. Lincoln, &c. E. Co., 14 Neb. 389 ; 10 Am. & Eng. R. Cas. 118. See also Deitrichs v. Lincoln, &c. R, Co., 13 Neb. 361 ; 13 N. W. Rep. 624. 2 Bentonville R. Co. v. Stroud, 45 Ark. 278. One who has purchased prop- erty after proceedings to condemn part of it have been instituted, but who was not made a party to the proceedings cannot appeal ; no one who was not a party to the original proceedings has a right to appeal from the award there rendered. Connable v. Chicago, &c. R. Co., 60 Iowa, 27 ; 10 Am. & Eng. E. Cas. 520 ; Cedar Rapids, &c. R. Co. v. Chicago, &c. R. Co., 60 Iowa, 35 ; 10 Am. & Eng. R. Cas. 522. The word "owner" comprehends any person having an interest in the estate. 6errard,w. Omaha, &c. R. Co., 14 Neb. 270 ; 20' Am. & Eng. R. Cas. 423. Only the party owning the land at the time of the condemnation is entitled to compensation ; S, subsequent owner has no right to claim it. Dixon v. Baltimore, &c. R. Co., 1 Mackey (D. C), 78 ; 3 Am. & Eng. R. Cas. 201. The lands of a minor cannot be con- demned without making his guardian a defendant. If there is no regular guar- dian, a guardian ad litem should be appointed. Missouri, &c. R. Co. o. Carter, 85 Mo. 448; 28 Am. & Eng. R. Cas.' 249. 8 MoKee v. St. Louis, 17 Mo. 184. But if the statute makes special provision in this respect, it must be strictly fol- lowed. Quincy R. Co. v. Kellogg, 54 Mo. 334. In Massachusetts, an estate in which there are different interests is re- quired to be valued as one estate, and the statute provides for the apportionment of the sum awarded among the different interests. Edmonds v. Boston, 108 Mass. 535. See also Spring Valley Water Works V. San Francisco, 22 Cal. 434 ; Chicago, &c. R. Co. v. Chamberlain, 84 111. 333. * Merrill ». Berkshire, 11 Pick. (Mass.) 269 ; Tucker v. Campbell, 36 Me. 346. 6 Whitcher v. Benton, 48 N- H- 157 ; Ashby V. Eastern R. Co., 5 Met. (Mass.) 368 ; Southern Pac. R. Co. v. Wilson, 49 Cal. 396 ; Grand Rapids, &c. R. Co. v. Alley, 34 Mich. 10 ; East Saginaw, &c. R, Co. v. Benham, 28 Mich. 459. 988 EMINENT DOMAIN. [CHAP. XIV. and the assessmeut is made in a gross sum which is to be divided among them according to their respective interests.^ If an assess- ment is made to two jointly, one cannot appeal without making the other a party thereto, either by notice or other proper proceeding.^ The appraisal should not contain a separate award of damages to each tenant in common of a single tract of land, of which a part has been taken for the use of a railroad ; and where the appraisers, after fixing the value of the land taken and the damages to the remainder of the tract, have apportioned the whole amount among the several tenants, an appeal by the railroad-company should be from the gross award. On such appeal the tenants in common and all other par- ties in interest are plaintiffs, and are not entitled to separate trials. Tenants in common must unite as plaintiffs, even at common law, to recover damages for any injury done to the real estate.^ In some of the States they are allowed to join or sever in the action.* An assessment must be made to each owner in severalty, and a gross sum cannot be awarded to several owners of separate and dis- tinct parcels of a tract ; ^ nor can the damages of owners of separate and distinct parts of a block of buildings be awarded in gross, but the damages of each owner must be assessed separately.* A vendor and vendee of land under a bond for a deed or other written contract of sale,'^ 1 East Saginaw K. Co. v. Benhaiii, 28 2 Head (Tenn. ), 171; Pinkerton «. Boston, Mich. 459.1 If an assessment is made &c. K. Co. , 109 Mass. 627 ; Drury w. Mid- separately when it should be in gross, — land R. Co., 127 Mass. 571. As a rule, Lake Superior R. Co. v. Greve,_17 Minn, the vendee under articles of agreement is 322, — or in gross where it should have entitled to notice and compensation, and been made in several sums, the objection where there has been a contract to sell comes too late after verdict. Knaupt v. and a suit for specific performance insti- St. Paul, &c. E. Co., 22 Minn. 173. tuted by the vendoi', which results in a ^ Chicago R. Co. v. Hurst, 30 Iowa, decree such as is sought, the veadee has 73 ; Southern Pac. R. Co. o. Wilson, 49 sufficient interest pending the suit to file Cal. 396. a petition for the assessment of damages. ' De Puy V. Strong, 37 N. Y. 372; Pinkerton o. Boston, &c. R. Co., 109 Austin V. Hall, 13 Johns. (N. Y.) 286 ; Mass. 527. In this case the court say : Low V. Mumford, 14 id. 426 ; Decker v. "The price which he has agreed to pay Livingston, 15 id. 479 ; Hill v. Gibbs, 5 was made upon the iissumption that he Hill (N. Y ), 56 ; May v. Slade, 24 Tex. was to become the owner of the entire 205. lot, unencumbered by the action of the * Hobbs V. Hatch, 48 Me. 55 ; Webber respondents in appropriating a portion of I), Merrill, 34 N. H. 202 ; Hubbard v. it to their own use. Under the decree Foster, 24 Vt. 542 ; McGill v. Ash, 7 of the court he has been compelled to Fenn. St. 397. fulfil his contract and to pay the price of ' Chieagt!, E. Co. v. Sanford, 23 Mich, the entire lot. The effect of this decree 418. is that he gets from his grantors less than « Sharp «. Johnson, 4 Hill (N. Y.), 92. he contracted for, and that all the damage ' Colcough D. Nashville, &c. E. Co., resulting from the construction of the SEC. 252.] PARTIES TO PKOCEBDINGS. 989 a lessor an4 lessee,^ tenants in common,^ a tenant by dower or curtesy,^ and the heirs,* partners owning land as a firm,^ the respondent's railroad falls upon him, and not upon the parties from whom he derived his title. So far as it is a question be- tween him and his grantors, there can he no doubt that the compensation for the taking equitably belongs to him and not to them." So where a person was in pos- session of land and held a title- bond con- ditioned for the execution of a deed to him on payment of the purchase-money, it was held that he was entitled to damages for the taking. St. Louis, &c. R. Co. v. Wilder, 17 Kan. 239. See also Bridgman V. St. Johnshury, &c. R. Co., 58 Vt. 198 (vendor held not a nsioessary party). And where the vendee joins w'ith the vendor in the petition for damages, the railroad com- pany cannot object that the damages are awarded in a gross sum and not appor- tioned. Proprietors v. Nashua, &c. R. Co., 10 Cush. (Mass.) 385. The commis- sioners need, however, take no notice of the vendee's interest in making their award, but the fund awarded by them will ,he paid into court, and the vendee's rights will there be protected. Molntyre v. Easton, &e. R. Co., 26 N. J. Eq. 425. 1 Kohl V. V: S., 91 U. S. 367. The lessee of a railway track is not a necessary party in a proceeding to condemn a right of way across such traek. Englewood, &o. R. Co. V. Chicago, &c. R. Co., 117 111. 611 ; 25 Am. & Eng. R. Cas. 227. But a lessor of land, a part of which is taken, is entitled to damages for being deprived of recourse to the land for his rent. Fitzpatrick v. Pennsylvania R. Co., 10 Phila. (Penn.) 141. A market com- pany which required lands held by a tenant under a fourteen years' lease suf- fered the lease to expire, and then turned out the tenant. The lease contained a provision that at the end of the term the tenant should yield up the premises, with all fixtures and improvements. It was held that the tenant was entRled to com- pensation for good-will and the chance of beneficial renewal, but not for improve- ments ; but that these might be considered by the jury in estimating the chance of beneficial renewal. Rex u. Hungerford Market Co., 4 B. & Ad. 596 ; and see Regina v. Hungerford Market Co. , 9 Ad. & E. 463 ; Regini v. London & South- ampton Ry. Co., 10 Ad. & E. 3. -' Harrisburgh, &c. %. Co. v. Bucher, 7 Watts (Penn.), 33. s See Toledo, &c. R. Co. v. Dunlap, 47 Mich. 456 ; 5 Am. & Eng. R. Cas. 378. * Columbia Bridge Co. v. Geisse, 35 N. J. L. 268. See also Church ». Grand Rapids, &c. R. Co., 70 Ind. 161 ; 3 Am. & Eng. E. Cas. 198 ; Barlage b. Detroit;', &c. R. Co , 54 Mich. 564 ; 17 Am. & Eng. R. Cas. 131. Where there is a life-tenant and a remainderman, both must join, or be joined in ad quod damnum proceedings, and there will be an apportionment of the dam- ages accordingly. Colcough v. Nashville, &c. R. Co., 2 Head (Tenn.), 171 ; Bur- bridge V New Albany, &c. E. Co., 9 Ind. 546. In such case the value of the life- tenant's interest is to be estimated by multiplying the net annual value of the premises by the years of the life-tenant's expectancy of life, and reducing the same by calculation to a present cash value. Pittsbnrgh, &c. R. Co. v. Bentley, 88 Penn. St. 178. A widow of a decedent in possession, of land, together with the heirs, must be made a party in ad quod damnvm, proceedings, and is entitled to damages. New Orleans, &c. R. Co. v. Frederic, 48 Miss. 1. So of the owner of a right of way over land taken. Phila., &e. R. Co. •<j. Williams, 54 Penn. St. 103. Or of a right of common. Bell v. Ohio, &o. R. Co., 1 Grant Cas. (Penn.) 105. The owner of a ground-rent is also entitled to an apportionment of the damage. Voegtly V. Pittsburgh, &c. R. Co., 2 Grant Cas. (Penn.) 243. As between trustee and cestui que trust it seems that the former must institute ad quod damnum proceed- ings and not, the latter. If the latter does so his title may' be denied. Davis v. * Reed v. Hanover Branch R. Co., 105 Mass. 303. ' It seems, however, that where one partner holds land in tru^t for a firm, the railroad company cannot object to both parties joining in ad quod damnum pro- ceedings and having a joint assessinent made in their favor. Reed v. Hanover, Branch R. Co., 105 Mass. 303. 990 EMINENT DOMAIN. [chap. XIV. owner of a life-estate and of the reversion,^ or any parties whose inter- ests are joint, or so connected as not to be fairly severable, are entitled to be made parties and to have their damages assessed. Where the land is the property of a married woman, it is necessary, under most of the statutes now existing, to join her with her husband as parties defendant. The rule in this connection, however, must depend' upon the peculiar policy which the several States have adopted in regard to the ownership and conveyance of lands by married women.^ If a party is omitted from the proceedings, they will be valid as to those who are made parties ^ but a court of equity will not enjoin the company from the use of the land at the suit of one not made a party, when it does not appear that he has sustained any serious i^njury therefrom, of where, even though injury has resulted to him, he has rested on his rights until after the construction of the road, when an injunction would be a serious annoyance to the public* The rule is that proceedings to condemn a single tract must stand or fall as an entirety, and if they are invalid as .to any one of the parties in interest, either because of the omission of a proper party or the want of notice, or from any other cause, they are invalid as to Charles River R. Co., 11 Cush. (Mass.) 506. If the railroad company institutes the proceeding, it is irregular to join the cestui que trust. State v. Easton, &c. R. Co., 37 N. J. L. 181. 1 Pittsburgh, &o. R. Oo. v. Bentley, 88 Penn. St. 178; Kansas City, &c. R. Co. V. Weaver, 86 Mo. 473 ; 28 Am. & Eng. B. Cas. 247. A tenant for life and remainderman may each recover compen- sation for the injury he sustains by the construction of a railpoad over their land. The remainderman can recover only such damages as affect the reversion. The injury must be of a permanent nature necessarily prejudicial to the reversion, and the measure of the damage is, in gen- eral, the amount his estate is thereby diminished in value. Bentonville E. Co. ■0. Baker, 45 Ark. 252. ^ Under the Colorado statute both hus- band and wife should be joined as defend- ants. Colorado Central R. Co. v. Allen, 13 Col. 229 ; 44 Am. & Eng. R. Cas. 193. ' State V. Easton, &c. R. Co., 37 N. J. L. 181. * Whittlesey v. Hartford, &c. R. Co., 23 Conn. 42; ante, § 211. In the case of Columbus, &c. R. Co. v. Witherow, 82 Ala. 190, the court, in holding that an owner of land abutting on a public street might enjoin a railroad company from occupying such street Without proper compensation to him, went on to observe : " The peculiar equities of the case, how- ever, authorize a modification of the injunc- tion, such as will do exact justice to both parties litigant. The proceeding is one in restraint of a public work of great utilit}', — the construction of a railroad, — thus presenting a case in which injunctions are granted with gieat caution. Delay in the construction of the work may operate very oppressively against the defendant as well as in great injury to the public." The court thetefore dissolved the injunction upon condition that the company should furnish adequate security for the payment of such damages as might be assessed against it in subsequent proceedings. See also High on Injunctions (2d ed.), § 698 ; East & West R. Co. v. East Tenn., &c. R. Co., 76 Ala. 259 ; Torrey v. Camden, &c. R. Co., 18 N. J. Eq. 293 ; Richards v. Des Moines Valley R. Co., 18 Iowa, 259 ; Irish V. Burlington, &c. R. Co., 44 Iowa, 380; Stretton v. Gt. Western, &c. Ry. Co., 40 L. J. Eq. 60. SEC. 252.] PARTIES TO PKOCEBDINGS. 991 all.^ That proceedings are utterly void as to who is a necessary party who was omitted from them is beyond all question.^ The words "owner" or "proprietor" are not legal terms, but words of common parlance. By " owner " is not necessarily meant a tenant in fpe simple, but the word is commonly ,used to express, generally, a person who receives beneficial returns from the land ; the tenant in fee simple may hav§ scarcely any beneficial interest in the land. The same observations apply to the word " proprietor ; " any person who has a beneficial interest in the land was held to be within the words of an act " making satisfaction to the owners or proprietors of all private lands, etc., taken, or for any loss or damage they may sus- tain thereby." ^ In this country it has been held that, under a statute providing for a remedy for damages sustained by the owners of land taken by a corporation, all owners of titles in or growing out of the land whose rights are capable of actual privation by taking, may have compensation.* The term " owner," as used in such a statute, includes every person having any title to or interest in the land, capable of being injured by the construction of the road, and ex- tends to the interest of a lessee or termor.® Lessees of land for years'with cdvenant for renewal have such an interest in the laud as will bring them within the jurisdiction of a court authorized to fix the -compensation a railroad shall pay to " owners." ^ Indeed, the interest of a lessee is as. potential in the eye of the law as that of the owner of the fee, though practically of less value, and cannot be affected by a subsequent agreement between his lessor and the cdtai- pany, made without his consent. In such case the compensation must be apportioned between the parties ; and the lessor and lessee should 1 Brush V. City of -Detroit, 32 Mich. ° Baltimore, &c. R. Co. ■». Thompson, ' 43 ; Anderson v. Pemterton, 89 Mo. 61 ; 1 10 Md. 76 ; Colcongh v. Nashville, &c. R. S. W. Eep. 216. _ Co., 2Head(Tenn.), 171;Lister».Lobley, 2 Columbus, &o. R. Co. v. WitheroW, 2 H. & W. (N. Y.J 122 ; Milley v. South- 82 Ala. 190; Smith u. Chicago, &c. R. Co., eastern Ry. Co., 1 M. & G. 58. Omnpare 67 111. 191 ; Garmoe v. Sturgeon, 65 Iowa, Ross v. Elizabethtown, &c. R. Co., 19 N., ' 147; State v. Easton, &e. K. Co., 36 HT. J. J. L. 230 ; Canal Bank v. Mayor, 9 Wend. L. 181 ; Hagar v. Brainard, 44 Vt. 294 ; (N. Y.) 244. That the presumption is, if Detroit, &o. R. Co. «. Detroit, 49 Mich, the juiy assess compensation tq one person, 47 ; Lewis on Em. Dom., § 339. it is only for his interest in the premises, ' Lister v. Lobley, 6 N. & M. -343 ; see Rex v. Nottingham Waterwork.s, 6 Chauntler w. Robinson, 4 Exch. 163 ; Rus- Ad. & El. 355. That money paid into sell V. Shenton, 3 Q. B. ^49. An ^' owner " court for land taken by a railroad company is one who has some interest in the land is to be divided as the land itself should at the time of the injury done. Phila., &c. have been, see Ross v, Adams, 28 N. J. L. R. Co. ». Lawrence, 10 Phila. (Penn.) 604. 160. * Philadelphia, &c. E. Co. v. Williams, ' North Pennsjilvania E. Co. u, Davis, 54 Penn. St. 103. 26 Penn. St. 238. 992 EMINENT DOMAIN. [CHAP. XIV. each receive his separate share of the damages.^ The lessor and lessee are each entitled to recover compensation for the damage sustained by them respectively.^ But a lessee, who has expended large sums upon the land demised, under a reasonable expectation of a renewal of his lease, is not entitled to compensation in respect of such expec- tancy, where the land is taken from him by an incorporated com- pany under a statute directing compensation to be paid to the owners and occupiers of land for the value of such land, and also for the damages sustained by them in making such works.^ The owner of a ground-rent is held not to be affected by proceedings of a rail- road company against his tenants, to take and occupy the ground for the purposes of their road, as the landlord and tenant have distinct estates* A court authorized to fix the compensation to be paid by a railroad for " lands and materials," awarded to lessees, holding with a covenant of renewal, " $4,000, including the damages arising out of the refusal by the company to renew." It was held that although there Was no authority to assess damages for a breach of covenant, yet the decree was good ; as this was, in fact, compensation for depriving the lessees of an interest they held in the land.* A widow who is enti- tled to dower in land taken has an interest which the commissioners should assess, which is the value of her life-estate.* But the wife of the owner of the fee of land taken for public use, is not within the provisions of a statute requiring compensation to be assessed to the persons interested in or entitled to the land. Her' inchoate right, or possibility of dower, is divested by a regular taking from, and com- pensation to, the husband in his lifetime. All inchoate rights are defeated by proceedings to condemn the land, at least so far as the company is concerned.'^ A tenant is not entitled to any allowance for improvements which by the terms of his tenancy' he is bound to leave and give up to his landlord.^ If a tenant has a valid contract for a renewal of his lease, he is entitled to compensation for the injury resulting from being deprived thereof by the taking.^ 1 Baltimore & Ohio E. R. Co. i>. Thomp- " Matter of William and Anthony son, 10 Md. 76. Streets, 19 "Wend. (N. Y.) 678. ^ Parks V. City of Boston, 15 Pick. ' Moore v. Mayor, &c. of New York, 8 (Mass.) 198. N. Y. 110. ' Rex V. Liverpool & Manchester Ey. ' Eeg. o. Hungerford Market Co., 9 Ad. Co., 4 Ad. & El. 650. & El. 463. * Vopgtlyi). Pittsburgh, &c. E. R. Co., » Norwich Ry. Co. v. Whitehmise, 11 2 Grant Cas. (Penn.) 243. Beav. 382. In Ex parte Farlow, 2 B. & ^ North Pennsylvania R. R. Co. v. Ad. 841, a tenant from year to year was Davis, 26 Penn. St. 238. ejected by the company, but received a SEC. 252.] PARTIES TO PROCEEDINGS. 993 Where the statute makes provision for the payment of damages to the " owners " of landy all persons having a proprietary interest therein capable of being taken, whether in possession, "reversion, or remai^der, are regarded as being comprehended. under the term; and it includes, besides the owner of the fee, owners of franchises issuing out of the laud,^ owners of easements of any kind, over or. in the land,2 mortgagees,^ and lessees for years* or life.* But neither a regular half-year's notice to quit. It ap- peared that she had been many years in possession, and that the tenancy was not likely to have been determined if the act had not passed. She was held entitled to compensation for the whole marketable interest which she had in the J)remises when the act passed, and that the good- will, though of premises on so uncertain a tentire, was protected by the act as an in- terest which would practically have been valuable as between the tenant and a pur- chaser, though it was not a legal interest as against the landlord. But it was other- wise whete the tenancy was from year to year, determinable at three months' no- tice ending with the year, and with a stipulation against underlfetting without leave. But see Doo v. London, &c. Ry". Go., 3 Jur. 258, and Reg. i>. London, &c. Ry. Co., 10 Ad. & El. 3, where the .tenant having received the requisite six months' notice from the company, and held over after notice, having been in- formed by the company that he might hold until the end of the cuiTent year, it was held that he was entitled to no "com- pensation, the situation being the same as though the landlord had given the reg- ular landlord's notice. See also Ex pa/rte Nodin, L. J., 1848, eh. 421. A tenant at will is not entitled to compensation for the taking of his estate. Reg. v. Liver pool, &c. Ry. Co., 4 Ad. & El. 650. 1 Enfield Toll Bridge Co. i*. Hartford, &e. R. R. Co., 17 Conn. 464. 2 Philadelphia, &c. R. R. Co. v. "Williams, 54 Penn. St. 103. But a mort- gagor may recover the full aJnount of dam- ages without reference to the mortgagee. Breed i>. Eastern R. R. Co., 5 Gray (Mass.), 470, n. ^ Davis V. LaCrosse, &c. E. R. Co., 12 Wis. 16 ; Wilson v. European, &c. R. R. Co., 67 Me. 358 ; Michigan, &c. R. R. Co. V. Barnes, 40 Mich. 383 ; Leverin v. Cole, 38 Iowa, 463. In Crane v. Eliza- beth, 36 K. J. Eq. 339, it appeared that the charter of Elizabeth requires that in laying out and opening streets compensa- tion must be made to the owner or owners of lands and real estate taken for the im- provement. It was held that this did not require compensation to be made to mort- * North Pennsylvania R. R. Co. v. Davis, 26 Penn. St. 238 ; Heise % MiflF- lin, &c. R. R. Co., 62 id. 67; Parks v. Boston, 15 Pick. (Mass.) 198. It is held that a lessee is entitled to notice even though his lease expires before the actual taking. Edmands v. Boston, 108 Mass. 535. And a license from the owner to en- ter is no defence to the lessee's claim for damages. Baltimore, &c. R. R. Co. ■». Thompson, 10 Md. 76 ; Brown i), Powell, 25 Penn. St. 221. The rule is otherwise, however, where the lease expressly re- serves all such damages to the lessor. Burbridge v. New Albany, &c. E. R. Co., 9 lud. 546. There should be a separate award to the le.ssor and to the lessee. Bal- timore, &o. R. R. Co. V. Thompson, ante. But see Kohl «. United States, 91 U. S. 367. The rule for ascertaining the dam- ages to the lessee is to ascertain the dif- ference between the annual use of the premises _before and after the taking. Lawrence v. Boston, 119 Mass. 126 ; Renwick v. D. & N. R. R. Co., 49 Iowa, 664 ; Cobb v. Boston, 109 Mass. 438. And benefits addruing to the lease may be offset. Turnpike Road Co. v. BrosSi, 22 Penn. St. 29. ' Burbridge b. New Albany, &o. R. R, Co., 9 Ind. 546. 994 EMINENT DOMAIN. [chap. XIV. trespasser in possesision ^ nor a judgment creditor ^ is held to come under this head. The damages belong to the owner at the time of the taJdng, and do not pass to a grantee of the land under a deed made subsequent to that time, unless expressly conveyed therein.^ gagees specifically ; that the compensation should include the value of all the inter- ests burdened by the public easement, and is to be paid to the owner of the land if no other claimant intervenes ; and if in any case such owner ought not in eq[uity to receive the whole, timely resort must be had to the Court of Chancery, which wiU see to the eq^uitable distribution of the fund. See Mclntyre v. Easton & Am- boy R. E. Co., 26 N. J. Eq. 425 ; Wheeler V. Kirkland, 27 id. 534 ; Bright v. Piatt, 32 N. J. Eq. 362; Astor v. Miller, 2 Paige (N. Y.), 68 ; Astor v. Hoyt, 6 Wend. (N. Y. ) 603. The term " owner " as ap- plied to real estate, is undoubtedly one of variable meaning. Thus, in contracts of insurance it has received much latitude of interpretation, so as to embrace persons entitled to particular estates and equi- table interests, where such construction was necessary to preserve the validity of the policy or prevent the forfeiture of rights under it. So in statutes providing compensation to owners for lands taken for public use, where the Constitution re- quired that special interests should be paid for, similar scope has also necessarily been given to the language in order to ren- der the acts consistent with the fundamen- tal law. Thus in Ellis v. Welch, 6 Mass. 246, and Parks i'. Boston, 16 Pick. (Mass.) 198, it was held to include eveiy person having a valuable vested interest in land, capable of being damnified by the laying out of a street, because a narrower con- struction would have infringed upon the constitution of the commonwealth. But in Watson v. New York Central B. R. Co., 47 N. Y. 157, where upon the same prin- ciple it was urged that the phrase " own- ers of land " should embrace judgment creditors of the legal owner, the court re- fused to construe it so broadly, because the remedies of such creditors against the land were supposed to be subject to legis- lative supersedure by the power of emi- nent domain without compensation. In this case at bar the court applies the pri- mary rule that in statutes and contracts words are to be received in their com- mon acceptation. According to this ac- ceptation a mortgagee of land is not the owner, as has been frequently adjudged in this State. Wade v. Miller, 33 N. J. Eq. 296 ; Shields v. Lozear, 35 id. 496 ; Kircher v. Schalk, 40 id. 335. If the mortgagor alone is notified, the title of the mortgagee is not divested. Leverin ■I). Cole, 38 Iowa, 463 ; Piatt v. Bright, ante ; Michigan Air ' Line E. E. Co. v, Barnes, 40 Mich. 383. And the mortga- gee is entitled to notice, whether he is in or out of possession. Wilson v. European &c. E. E. Co., 67 Me. 358. And in the last case it was held that if the company proceeds to take the land without notice to him he may proceed against it in tres- pass. If he is made a party, but subse- quently as to him the proceedings are discontinued, .^ it is a fatal irregularity. Where he is not made a party it has been held that he may first sell the land, and if that does not yield suffi- cient to discharge the mortgage debt, he may then sell the right of way, either with' or without the land as may be most ad- vantageous. Leverin v. Cole, arUe. The mortgagor and mortgagee cannot join in proceedings, but must proceed separ- ately. Famsworth v. Boston, 126 Mass. 9. And where the mortgagor proceeds alone, the fund, upon application of the mortgagee, will be ordered to be paid into court, and a proportional part thereof be paid to the mortgagee, and he will be relegated to the remaining estate for the balance. Piatt v. Bright, ante. In Eng- land an equitable mortgagee is entitled to notice. Martin v. London, &c. Ry. Co., 35 L. J. Ch. 795, and so is a mortgagee of a leasehold estate. Hagar v. Brainerd, 44 Vt. 294. 1 Easa V. Missouri, &o. R. E. Co., 18 Kan. 124. 2 Watson V. N. Y. Central R. R. Co., 47 N. Y. 157. 8 Rand v. Townsend, 26 Vt. 670 ; SEC. 252.] PARTIES TO PROCEEDINGS. 995 If the land of a deceased person is taken, the compensation belongs to the heirs,^ but the compensation for lands taken during the life- time of the deceased, goes to his executor or administrator precisely the same and upoii the same principle as the purchase-money for lands conveyed by him during his lifetime would.^ If the statute inakes provision for the payment of damages to " parties interested" in the land, a wider field is opened, and the owner of an equitable interest,^ mortgagees,* a party in possession under a written contract for the purchase of the land,^ a widow with a right of dower, or a husband who is tenant by curtesy,^ a lessor and lessee for years,'^ are all entitled to damages, as well as any person who has a tangible proprielary interest in the land. Both the lessor and the lessee are entitled to damages, — the lessor for the injury to his estate, and the lessee to the extent of the value of his unexpired term.,^ If the lease contains a covenant for a renewal, he is entitled also to recover the value of a renewal, and where the damages in such a case were fixed at four thousand dollars, "including the damages arising out of the refusal by the company to renew," it was held- that, although there was no authority to assess damages for a breach of covenant, yet the decree was good, as it was in fact compensation allowed the Trogden v. Winona, &c. R. R. Co., 22 Boynton v. Peterboro, &c. R. R. Co., 4 Minn. 198 ; Chicago, &c. R. R. Co. v. Cush. (Mass.) 467 ; Near v. Knox, &c. Loeb, 8 HI. App. 627 ; Paducah, &o. R. R. Co., 61 Ma 298. / R. R. Co. ■». Stowell, 12 Heisk. (Tehn.)l; ^ Moore v. Boston, 8 Cush. (Mass.) Drnry v.. Midland R. R. Co., 127 Mass. 274." 571; Tenbiook v. Jahke, 77 Penn. St. ^ Drury b. Midland E. R. Co., ante. 392 ; McFadden v. Johnson, 72 id. 335 ; * Piatt v. Bright, 32 N. J. Eq. 81 ; AUyn V. Providence R. E. Co., 4 R. I. Hagar w. Brainerd, 44 Vt. 294. 457 ; Pomroy v. Chicago, ^c. R. R. Co., * Pinkerton v. Boston & Albany R. R. 25 Wis. 641. The grantee takes tSe land Co., 109 Mass. 627. He jnay prosecute cum omre. Heutz ii. Long Island E. E. his claim in the name of the vendor. Co., 13 Barb. (N. Y.) 646 ; Chicago & * Columbia, &c. Bridge Co. v. Geisse, Alton R. R. Co. v. Maher, 91 111. 312 ; 35 N. J. L. 268. Central R. E. Co. v. Merkel, 32 Tex. 723 ; ' Burbridge v. New Albany, &c. E. E. Lewis v. Wilmington, &c. R. R. Co., 11 Co., 9 Ind. 546; Parks v. Boston, 15 Rich. (S. C.) 91. It is held that a waiver Pick. (Mass.) 198; Lawrence v. Boston, of damages by the owner of the land is 119 Mass. 126 ; Cobb v. Boston, 109 binding upon all persons who cUim under Mass. 438 ; Kohl v. United States, 91 him. Central R. R. Co. v. Hatfield, 29 U., S. 3^67. N. J. L. 206 ; Illinois Central E. E. Co. » Parks v. Boston, ante ; Turnpike V. Allen, 39 111. 205. hi Toledo, &o. Eoad v. Brossi, 22 Penn. St. 29 ; Balti- E. R. Co. V. Morgan, 72 111. 155, the more, &c. E. E. Co. ■». .Thompson, 10 Md. court say that "if the grantor does not 76; Ren wick v. D. & N. R. R. Co., 49 complain of damage done' to his land be- Iowa, 664; Brown a. Powell, 25 Penn. fore he conveyed it, the grantee certainly St. 229 ; Heise v. Pennsylvania E. E. Co., cannot." • 62 id. 67 ; Colcough v. Nashville, &o. 1 BaUou V. Ballou, 78 N. Y. 325 ; E. R. Co., 2 Head (Tenn.), 171. 996 EMINENT DOMAIN. [CHAP. XIV. lessee for his interest in the land.^ So if a new lease has been al- ready made for a term to begin when the old term ends, he is en- titled to the value of such new lease.* The statute of limitations does not apply to this statutory remedy, and unless, as is usually the case, the statute limits the period within which the remedy shall be pursued, it may be done at any time ; ^ but if any of the common- law remedies apply, the statute runs upon them, and after the lapse of the requisite time after the taking, the. remedy is barred. SeO. 25.3. Effect of taking an Inchoate Right. — If proper proceed- ings are brought against the owner of the land for its condemnation, and compensation therefor is made to him, if the statute makes no provision to the contrary, all inchoate rights are thereby, so far as the compahy is concerned, released,* — as rights of dower, curtesy, and other incipient rights,^ including judgment liens, or liens by attach- ment upon mesne process.® But where the statute makes provision for the acqxiisition of a lien upon land under a judgment, a payment of the damages to such creditor pro tanto would operate as a pay- ment to the owner.^ Sec. 254. Title. — When the corporation brings proceedings to ' condemn land, by making a person a party thereto, it admits his title ; ^ but this is not conclusive upon the owner, and he may show that his title is different from that stated.* But the owner, if he is 1 North Pennsylvania R. Co. ». Davis, upon the question of title. Spring Valley 2B Penn. St. 238. See also Alabama R, Water Works v. San Francisco, 22 CaL Co. V. Kenney, 39 Ala. 301. 434. * Cobb V. Boston, 109 Mass. 438. » Biisbane v. St. Paul, &o. R. Co., 23 * Revere v. Boston, 14 Gray (Mass.), Minn. 114. The petition for condemna' 218 ; Flagg «. Worcester, 13 Gray, 601 ; tion should contain a thorough descrip- Delaware, &o. R. Co. v. Burspn, 61 Penn. tion of "the land intended to be taken, so St. 369 ; Jefferson, &c. R. Co. v. New that there may be no question as tb its Orleans, 31 La. An. 478. identity. Toledo, &e. R. Co. v. Munson, * Lawrence v. Miller, 2 N. Y. 245 ; 57 Mich 42 ; 20 Am. & Eng. R. Cas. 410 ; MeCracken ». Hay ward, 2 How. (U. S.) West v. West, &c. R. Co., 61 Miss. 536 ; 608 ; Towne v. Smith, 1 W. & N. (U. S. 20 Am. & Eng. R. Cas. 402 ; Brooklyn C. C) 134 ; Moore v. New York, 4 Sandf. City R. Co. «. Hnssner, 96 N. Y. 18 ; 20 (N. Y.) 456. Am. & Eng. R. Cas. 265 ; Ohio River, &c. 5 Moore w. New York, 4 Sandf. (N.Y.) R. Co. v. Harness, 24 W. Va.. 511; 20 456 ; Watson v. N. Y. Cent. R. Co., 47 Am. & Eng. R. Cas. 405 ; Indianapolis, N. Y. 157. &c. R. Co. V. Newsom, 54 Ind. 121. And 6 Watson V. N. Y. Central R. Co., 47 this description should state the owners of N- Y. 167. the property and the character of the 7 Chicago, &c, R. Co. a. Chamberlain, estate each holds therein ; if it does not, 84 111. 333. any owner may come in and prove his 8 Chicago, &c. R. Co. v. Hopkins, 90 title in the proceedings before the corn- Ill. 316. Unless the statute exfiressly missioners. Brisbane v. St. Paul, &c. R, so provides, the commissioners cannot pass Co., 23 Minn. 114. / SEC. 255.] INTEEFEEBNCE WITH "WATEB-COUESES, ETC. 997 satisfied with the statement of his title, need not offer any evidence npon that head, as the condemning party cannot dispute it unless it has acquired a paramount title.^ But this only applies to the land taken ; in considering damages to land which is not taken, the owner must establish his title.^ So, also, where he brings the proceedings be must establish his title.* His title may be questioned by the company, but in order to do so it must set up want or failure of title in its answer.* When the corporation institutes proceedings, if it finds the title of the person proceeded against defective its remedy is to dismiss the proceedings, or have the inquest set aside upon that ground.* Sec. 255. interference with 'Water-courses, etc. — "Property," within the meaning of the term as employed in the Constitution and in the various statutes conferring the' right of eminent domain, not only embraces tangible things, as real estate or personal property, but also the rights which are incident thereto ; and an invasion of these rights constitutes a taking within the meaning of the term as employed in the Constitution, because it operates as an interference with the owner's right of exclusive use and control.® The right of 1 Selma R. Co. v. Camp., 45 Ga. 180 ; St. Paul, &c. R. Co. v. Matthews, 16 Minn. 341 ; St. Louis E. Co. v. Teters, 68 111. 144 ; Peoria, &c. K. Co. V. Bryant, 57 111. 473 ; Peoria, &c. R. Co. I'. Xiaurie, 63 III. 264 ; Crise v. Auditor, 17 Ark. 572 ; ITorristown Turnpike v. Barkett, 26 Ind. 53 ; Knauft v. St. Paul, &c. R. Co., 22 Minn. 173 ; Rippe v. Chi- cago, &c. R. Co., 23 Minn. 18. 2 St. Paul, &o. R. Co. V. Matthews, 16 Minn. 341. ' Peoria, &c. R. Co. v. Bryant, 57 111. 473 ; Robbius v. Milwaukee, &g. R. Co., 6 Wis. 636 ; AUyn v. Providence R. Co., 4 R. I., 457; Directors v. Wrightsville, &o. R. Co., 7 W. & S. (Penn.) 236. Possession is evidence of title. Sacramento Valley R. Co. v. Mof- fat, 7 Cal. 577. In an English case, a railroad company paid for and took ,a Con- veyance of land from A. Afterwards B. claimed the land and moved to restrain the company from taking it, their compulsory powers having expired. The evidence of title was conflicting between A. and B. It was held that B. had his remedy by gectment ; and an injunction was there- fore refused. Webster v. Southeastern Ry. Go. 15 Jur. 73. The land-owner whose property is taken for a company must show what title he has. Ownership of the fee is not to be presumed from the possession. The company pay for what title they get and can maintain, and for no more. Robbins v. Milwaukee, &o. R. Co., 6 Wis. 636; Directors, etc. v. Wrightsville, &c. R; Co., 7 W. & S. (Penn.) 236 ; East Tennessee, &c. R. Co. v. Love, 3 Head (Tenn.), 63 ; Winebiddle v. Pennsylvania R. Co., 2 Grant Cas. (Penn.) 32. * Daley v. St. Paul, 7 Minn. 390. 6 Mayor v. Richardson, 1 Stew. & P. (Ala.) 12 ; Auditor v. Crise, 20 Ark. 540. * East Pennsylvania, R. Co. v. Schol- lenberger, 54 Penn. St. 144 ; Eaton v. Boston, &c. R. Co., 51 N. H. 504 ; Thompson v. Androscoggin Co., 54 N. H. 545. The word "property" in the tenth article of the Bill of Rights, which pro- vides that " whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor, should have such a liberal con- struetion as to include every valuable in- 998 EMINENT DOMAIN. [chap. XIV. exclusive dominion over property is one of its most valuable attri- butes, and any interference therewith is an infringement of a right which affords ample ground for an action. Among these is the right to have the waters of a natural stream come thereto in its usual manner, with its usual flow, undiminished in quantity and quality ;-^ and any interference with this right is, to the extent of such interference, a taking of property for which the owner is en- titled to compensation ; and in estimating damages to an estate for the taking of the land, all these injuries are to be taken into account and compensated for, whether the injury results from diverting the water, or from precipitating it upon the land in increased volume, so as to flood it, or render it spongy, or otherwise to impair its value or usefulness to the owner.^ terest which can he enjoyed as property and recognized as such." Shaw, C. J., in Old Colony, &c. R. Co. v. Plymouth County, 14 Gray (Mass.), 161. 1 Luttrell's Case, 4 Coke, 86 ; Parke v. Kilham, 8 Cul. 77'; Garwood v. New York Central, &c. R. Co., 83 N. Y. 400 ; 38 Am. Rep. 452 ; Oliver o. Fenner, 3 R I. 215 ; Gillett v. Johnson, 30 Oonn. 183 ; Davis v. Fuller, 12 Vt. 178 ; Parker V. Griswold, 17 Conn. 288 ; Thompson v. Crocker, 9 Pick. (Mass. ) 59 ; Pillshnry V. Moore, 44 Me. 154 ; Clark v. Rockland Water Power Co., S2 Me. 68 ; Heath v. Williams, 25 Me. 209. If the public good requires it, all kinds of property are alike subject to the State's right of eminent domain, as well that which is held under it as that which is not. New York, &c. R. Co. V. Boston, &c. R. Co., 36 Conn. 198. In the case of a navigable stream, the bed of the river is a public highway of the State, and within its abso- lute control, subject only to the rights of commerce. Green v. Swift, 47 Cal. 536 ; Black River, &c. Co. v. La Crosse, &c. R. Co., 64 Wis. 659 ; Holden v. Robinson, 65 Me. 215 See also Holyoke Water Power Co. v. Connecticut River R. Co., 22 Blatchf. (U. S.) 131 ; s. c. 52 Conn. 570 ; Lewis on Em, Domain, § 71. See also Grand Rapids, &c. R. Co. v. Jarvis, 30 Mich. 308, 319. But if the stream is not navigable, it stands on a common footing with other private property, so far as the right of eminent domain is con- cerned. Thus, in a New Jersey case, Glover V. Powell, 10 N. J. Eq. 211, it was held that the legislature had the right to authorize the obstruction of the creek, there being nothing in the case to show that its navigation was demanded by the public interest. Certainly all property is held upoTi the implied condition that it may be reclaimed by the government, in the manner and upon the terms prescribed by law, whenever the public necessities so demand. Hazen v. Essex, 12 Cush. (Mass.) 476, 477 ; Trustees ti. Dennett, 5 T. & C. (N. Y.) 207 ; Central v. Lowell, 4 Gray (Mass.), 474. Where lands are taken for public use the owner should pursue the statutory remedy, and an action for tort will not lie against those who make the iihprovement under a power conferred by statute. Spragne t. Worcester, 13 Gray (Mass.), 139 ; Bartlett v. Crozier, 17 Johns. (N. Y. ) 447. Such a limited and. precari- ous duty in the reparation of bridges can- not afford a ground for a private action against the overseer from any and every person who may happen to be injured by a bad bridge within his district. Smith v. Gould, 59 Wis. 631. The grant of a right of way over land being merely the convey- ance of an easement, does not affect the right of the grantor to the use of a stream of water flowing over the land. Smith i-. HoUoway, 124 Ind. 329. " Trenton Water Power Co. v. Raff, 36 N. J. L. 335 ; Pumpelly ii. Green Bay Co., 13 Wall. (U. S.) 166 ; WabaSh, &c. Canal SEC. 255.] WHAT IS PjBOPbkty requiring compensation. 999 Says Miller, J., in a case cited in the last note : ^ " It is not neces- sarj' that property should be literally ' taken,' within the strictest sense of that word, in order to bring it within the constitutional - provision req[uiring compensation. While remote and consequential injuries sustained to property by neighboring public improvements are properly excluded from the rule, there may be such serious inter- ruption to the common and necessary use of property as will amount to a taking and entitle the owner to compensation, although it is not absolutely taken from him. The backing of water upon lands, or V. Spears, le Ind. 441; Evansville, &c. E. E. Co. V. Dick, 9 Ind. 433 ; Hooker v. New Haven, &c. Canal Co., 14 Conn. 145 ; Grand Eapids Booming Co. v. Jarvis, 30 Mich. 508 ; Ashley v. Port Huron, 35 id. 296 ; Lee D. Pembroke Iron Co., 57 Me. 481 ; Arimoud v. Green Bay, &c. Canal Co., 31 Wis. 316; Glover v. Powell, 10 N. J. Eq. 211 ; Lehigh Valley R. K. Co. V. Mc'Farlan, 31 N. J. Eq. 706 ; Cahill i;. Eastman, 18 Minn. 324 ; Kemper '». Louis- ville, 14 Bush (Ky.), 87. If there is no difficulty in constructing a culvert under a railroad, to eariy off the water from a meadow over which the railroad passes, the railroad company will be liable for flowing the meadow, if they do not make a culvert, with ditches to and from it, suf- ficiently low to drain off the water. John- son V. Atlantic, &c. E. E. Co., 35 N. H. 669. But after it has turned a river prop- erly, and has secured ihe baiiks in a rea- sonable manner, they cannot be liable for the future action of the water. Norris v. Vermont Central E. E. Co., 22 Vt. 99. In the absence of special laws, corpora- tions acting within their powers of taking land, and with due care, are not liable for consequential damage. Hatch v. Vermont Central Railroad, 28 Vt.- 142. If it is au- thorized to lay rails in the ■ public streets, it will not be liable in damages for acci- dents resulting therefrom, unless it is guilty of. negligence in the laying down. Mazetti v. New York & Harlem R. R. Co., 3 E. D. S. (N. Y. ) 98. Such coi^porations may be vested with the sovereign power to take private property for public use, on making ^compensation, but are not clothed with the sovereign's immunity from result- ing dama,ges. This power .leaves their common-law liability for injuries, done in the exercise of their authority, precisely where' it would have stood if the land had been acquired in the ordinary way. , Thus a railroad embankment in an eddy and creek's mouth, in which plaintiff has a right of storing lumber, whereby the water is prevented from flowing in its accus- tomed channel, and the plaintiff is de- prived of the full enjoyment of his privi- lege, is directly injurious^ to the plain,tiff ; and the fact that the creek is navigable and within the control of the legislature, is no defence to an action for the injury complained of. Tinsman v. Belvidere • Delaware E. E. Co., 26 N. J. L. 148. Where the right of way is granted to a railroad company, and the company are obliged to make a deep cut in order to en- joy the right, they are not bound to build walls to prevent the falling in of the banks. Hortsman v. Covington & Lexington R. E. ,Co., 18 B. Mon. (Ky.) 218. Where a street is taken by a railroad company, the remedy of an abutter for an 'injury there- by is not by statute, but the ordinary one at law to refcover for a consequential in- jury. The lot and street adjoining, as to the owner of the former, constitute but one piece of property, and an injury to the lat- ter is an injury to the former, and to the whole property. Protzman v. Indianapo- lis, &c. E. E. Co., 9 Ind. 467. Where a railroad company have voluntarily,, and? ' for their own profit, so constructed their ro^d as necessarily to injure a person's" property, -there being no remedy given by their charter, though they constructed their road in a proper manner and place, they are liable in damages for such injury. Evansville, &e. R. Co. v. Dick, 9 Ind. 433. 1 Pumpelly v. Green Bay Co., 13 Wall. (U. S.) U6. 1000 EMINENT DOMAIN, [CHAP, XTV. casting earth or sand or building a structure upon them, if done under statutes authorizing the acts for the public benefit, may entitle the land-owner to compensation, although his title to the land is not divested." In a Connecticut case,^ a corporation was created -by the legisla- ture for the purpose of constructing and maintaining a canal within certain termini, with all necessary waste-weirs, etc., and providing for the appointment of a board of commissioners, with power to designate the route of the canal, with all the works connected there- with, and to appraise the damages, giving notice to the parties in- terested. The canal and waste-weirs were constructed under the direction of such commissioners. The water of the canal discharged from one of the waste-weirs, after running through the lands of other persons, flowed upon the land of H. below, and thereby greatly injured it ; but it was found that the corporation, in thus discharg- ing the water, acted with proper prudence and care. No part of H.'s land was taken for the purposes of the canal This injury to the plaintiff's land resulted, not from any act of Providence or unex- pected calamity, but from using the waste-weir for the necessary protection of the canal. In an action on the case, brought by H. against the corporation for this injury, it was held, 1, That although it is incident to the sovereignty of every government to take private property for public use, of the necessity or expediency of which the government must judge, the obligation to make compensation is commensurate with the right ; 2. That no intent of the legislature to authorize the injury in question was apparent from the charter of incorporation, either by express provision or fair construction; 3. That the approval by the commissioners of this waste-weir, with the other works connected with the canal, did not authorize the defendants to use it, though with prudence and care, to the injury of the plaintiff; 4. That an injury to land, wMeh deprives the owner of the orddnary use of it, is equvoalent to a taking of the land ; 5. That no compensation having been provided for or made to the plaintiff for the injury sustained, he was entitled, by an action at common law, to recover damages for such injury. But where the legislature has provided a mode of redress, — as where it provides for the assess- ment of damages for "property taken or damaged" by the work authorised, — an action will not lie for the injury, but redress must 1 Hooker v. New Haven, &c. Canal Co., 14 Conn. 145. Upon a new trial, the doo- tiine wag adhered to. 15 Conn. 812. SEC. 255.J WHAT IS PEOPBKTY REQUIKING COMPENSATION. 1001 be sought in the mode provided by statute. But the class of inju- ries referred to are held to come within the rule stated in the Con- necticut case when no provision is made by statute for their redress.^ 1 Stevens v. Middlesex Canal, 12 Mass. 466. In this case an action was brought against a canal company which had con- structed its canal in such a manner that the water oozed through the hanks and in- jured the plaintiff's meadows. No proof was introduced to show that the company- had constructed their works in an im- proper manner or had been guilty of negli- gence in respect thereto. The court held that as the legislature hafl provided an- other mode of redress, an action would not lie, but said : " When the legislature au- thorizes an act, the necessary and natural consequence of which is damage to the property of another, he who does the act cannot be oo,mplained of as a trespasser or wrong-doer. ... If the legis,lature should, for public advantage and convenience, au- thorize any improvement the execution of which would require or produce the de- ,struction or diminution of private prop- evtj, without affording, at the same time, means of relief and indemnification, the owner of the property destroyed or in- jured would undoubtedly have his action at common law aga,iust those who should cause the injury, for his damages. For although it might be lawful to do What the legislature should authorize, yet to enforce the principles 'of the Constitution for the security of private property, it might be necessary to consider such a leg- islative act as inoperative, so far as it ' trenched upon the rights of individuals." In this case the injury is supposed to pro- ceed directly from the a^t authorized by the legislature, and the rule would not apply in a case where the injury does not proceed directly from the act authorized, tut from a subsequent aot of the defendants, intended to protect them in the enjoyment of the priv- ilege granted. If the act is expressly au- thorized by their charter, and no provi- sion is made to indemnify them, the person whose lands were injured woulji, according to the reasoningof the court in the last case, be entitled to redress by a common-law remedy. In the case of Gardner v. The Village of Newburgh, 2 Johns. Ch. (N. Y.) 166, the legislature had authorized the village to supply theniselves with ' water from a stream mnning through the plain- . tiffs farm, by which the plaintiff claimed he should be much incommoded ; and au injunction wasgranted. Kent, Chancellor, admits the power of the legislature ; but to render it valid, he says a fair compensa- tion must, in all cases, be previously made to the individual affected, under some equitable assessment to be provided by law. This is a necessary qualification ac- companying the exercise of legislative power, in taking private property for pub- lic use. The limitation is admitted, hy the soundest authorities, and is adopted by all temperate and civilized governments, from a deep and universal sense of its jus- tice. He cites Grotius and other eminent authorities, to show that where the right of eminent domain exists, unfettered by written constitutions, it is a clear princi- ple of natural equity that when private property is taken for public uie, the indi- vidual whose property is thus sacrificed must be indemnified. In that case, he in- sists that the legislature could not have intended to interfere with private rights ; and there was no reason why the lights of the .plaintiff should not be protected. Bonaparte v. The Camden & Amboy R. R. Co., 1 Bald. (U. S. C. C.) 229. In Eng- land, where there are no such checks as we have upon legislative discretion, so' great is the regard for private property, that in theory at least, the law will not sanction the least violation of it. All that the legislature will do, is, to compel the owner to alienate his possession for a reasonable price ; and even this is an ex- ertion of power, which the legislature in- dulges with caution, and which nothing but legislative authority can perform. 1 Bla. Com. 139. In a, more recent case in Massachusetts, on a bill for an injunction, the defendants pleaded that they had con- structed the road and bridge precisely in the manner and in the,direction prescribed by the act of incorporation, and had done nothing not authorized by that act. The VOL. II. -13 1002 EMINENT DOMAIN. [chap. XIV, In Maryland, it has been held that in an action brought against a railway company, by a land-owner a part of whose land has been taken by the company to recover for the diversion of a natural stream from his land, it is competent for the company to show that the attention of the jury of inquest was directed to the diversion. of the stream ; and that if their attention was so directed thereto, the rea- sonable presumption is that they estimated in their inquisition the damages likely to result from such diversion.^, These cases would seem to establish the rule, that evidence is admissible to show that the attention of the jury of inquest, was not called to a possible in- jury likely to occur from the use of the land for the construction of the road; because if it is competent to show that it was called thereto for the purpose of establishing a right, it is equally competent to show that it was not called thereto, for the purpose of defeating it. Eailway companies are bound to so construct their road as to do as little damage as possible to riparian owners ; ^ and the legislature has no power to authorize the diversion of a natural stream without com- pensation to all who are damaged thereby;^ or the obstruction of court say that the corporation, in the ab- sence of positive enactment, are bound to make suitable bridges, culverts, &e., and to keep them in suitable and sufficient repair, so as to carry off the water ef- fectually. This is implied, because it cannot be presumed the legislature would grant authority to enter upon and take private land for public use on other terms. The extent and limits of the duties and powers, in the absence of positive enact- ment, must be determined by what is reasonable in each case. If, after all, •there should happen' to be private prop- erty so situated that some damage must be done to it, which could not be obviated by reasonable precautions, inasmuch as it is expressly authorized by the legislature, in the exercise of the right of eminent do- main, such proprietor must be left to seek his compensation in the mode prescribed by the legislature. Rowe v. The Granite Bridge Corporation, 21 Pick. (Mass.) 344. Williams, C. J., in Hooker v. Nejv Ha- ven &c. Co., 14 Conn. 157-159. 1 Beaver v. Western Maryland R. R. Co, cited 34 Md. 79 ; Baltimore & Poto- mac' R. R. Co. V. Magruder, 34 Md. 74 ; 6 Am. Rep. 310. In a Vermont case the defendant was the owner and occupant of a certain messuage, to which water was conducted for use by an aqueduct, from a spring upon another portion of his land, and the Vei-mont Central Railroad Com- pany having located its road across the same, the commissioners were called to assess the damages. At, the hearing, the defendant stated that he should use the water for the jrarpose of supplying a new house which he contemplated erecting, and that the commissioners need not take the water into account in assessing the damages. The president and engineer of the company were present and heard this statement, and made no claim to the use of the water ; and the water was not con- sidered in assessing the damages. The defendant received the amount of the dam- ages assessed, and executed an absolute deed to the premises, without condition or reservation. It was held that the right to use the water passed by the deed. Ver- mont Central R. R. Co. v. Hill, 23 Vt. 681. " Hooker v. New Haven, &c. R. R. Co., 14 Conn. 146 ; Houghton v. Carter, 2 Johns. (N. Y.) 405. ' Gardner v. Newbergh, 2 Johns. Ch. (N. y.)162. SEC. 255.] WHAT IS PKOPEKTT EEQUIEING COMPENSATION. 1003 streams so as to flood the lands of upper riparian owners, when by suitable culverts and sluices the damage can be obviated ; ^ and this whether it arises from an ordinary condition, or from great freshets which ought to be foreseen and guarded against.^ And where a stream is diverted by a railway company, it is not^only bound to re- store it as nearly as practicable to its former state, hut also to maintain it there ; because the mere restoration of the stream is not likely to leave it as secure as it was before, and the company at its peril is hound to Tieep it secure? Ill Pennsylvania it is held, and, as we think, with great propriety, that the company is not responsible for injuries re- sulting from the inability of its works to resist the action of an ex- traordinary ^oodi ; and where, during an extraordinary flood, a culvert, which was of sufficient size and strength to carry off the water in ordinary freshet^, burst, and let the water down upon the plaintiff's 'school-house, it was held that the company was not responsible for the injury.* In an earlier case^ the rule applicable to such questions was thus stated by Agnew, J. : " In the present case, if the culvej?t was so unskilfully and negligently constructed as to be insufficient to vent the ordinary high water of the stream, the railroad company building it would have been liable for the injury thereby caused. The apparent facts indicate the duty. The stream, though small, must find a vent, or overflow the adjacent land and undermine the railroad. Its size, the character of the channel, and the declivity of the circumjacent territory which forms the watershed, indicated the probable quantity of water to be passed through. Proper engineer- ing skill should observe these circumstances, and supply the means of avoiding the injury which would result from locking up the nat- ural flow, or obstructing its passage so as to cause a reflux in times of ordinary high water. Beyond this, prudent circumspection can- .not be expected to look, and there is therefore no liability for extra- 1 March v. Concord, &c. E. E. Co., 19 be liable if the work had been done by it. N. H. 372 ; Hatch v. Vermont Central The doctrine stated in the text applies to R. E. Co. , 25 Vt. 49 ; Mellen v. "Western municipal and other public corporations as E. E. Co., 4 Gray (Mass.), 301. to imperfect and insufficient sewers, etc., " Brown «. Cayuga, &c., E. E. Co., 12 ' Eochester White Lead Co. v. Eochester, N. Y. 386 ; Lawrence v. Great Ndrthem 3 N. Y. 463. Ey. Co.. 16 Q. B. 643. In Steel v. South » Colt v. Lewiston E. E. Co.; 36 N. Y. Eastern Ey. Co., 16 C. B. 550, the.plain- 214. titf s garden was overflowed by the con- * Baltimore, &c. R. R. Co. v. Sulphur tractors of a railway, company carelessly Springs, &c., S. D., 96 Penn. St. 65; 42 cutting ofT a drain or culvert and flooding Am. Rep. 529. the plaintiff's garden. There was no qnes- 6 pittg-burgh, &c. E. R. Co. v. Gille- tion made but that the defendants would land, 56 Penn. St. 445. 1004 EMINENT DOMAIN. [CHAP. XIV. ordinary floods, — those unexpected visitations whose comings are not foreshadowed by the usual course of nature, and must be laid to the account of Providence, whose dealings, though they may afilict, wrong no one." In this case, it may be observed, according to the proof, if the culverts had JDeen in the most perfect condition, the injury would not have been avoided. There were three culverts, and the testimony showed that one hundred and twenty similar'cul- verts would have- been required to carry off the water. Therefore it might be said that the injury came under the head of vis major, rather than as the result of any negligence on the part of the com- pany. If the road was originally built by another company, the lessee or purchaser would probably be entitled to notice to remove the nuisance before action could be brought against it for its mainte- nance, unless there are facts sufificient to excuse notice.^ The diver- sion of a stream (not navigable) so far as is necessary for the execution - of the powers conferred is authorized by the legislature, and, accord- ing to the doctrine now generally held, the injury to those whose lands are not within the location of the road resulting from a proper and prudent execution of the power is not damnum absque iryv/- ria? But while the damage done to riparian owners whose lands are not taken cannot be recovered by statutory proceedings, yet they have their remedy by a common-law action. If the injury can be avoided by a proper execution of the works, it is not justified imder the charter, even as against those whose lands are taken ; as the legislature is presumed to have conferred the power upon the implied condition that it shall be properly exercised, and in such a manner as to avoid, as far as reasonably can be done, all injury and damage from its exercise.* The duty of avoiding un- necessary damage to others by the construction of their road is not 1 Brown/!). Cayuga, &c. R. E. Co., 12 held that the damages could not be recov- N. Y. 486 ; Hubbard v. Russell, 24 Barb, ered by petition, but the party would be (N. Y.) 404 ; Norton v. Valentine, 14 Vt. left to his remedy at law, because the in- 239; Preston v. Norfolk Ry. Co., 2 H. & N. jury is not the necessary resiilt of a pi-oper 7p5. construction of the road, but of its negli- 2 Hatch V. Vermont Central R. R. Co., gent and improper construction, damages 28 Vt. 142. for which are never assessed. Proprietors ' Whittaker v. Delaware & Hudson, Ca- of liOcks and Canals v. Nashua & Lowell nal Co., 87 Penn. St. 34 ; Johnson v. At- R. R._Co., 10 Cush. (Mass.) 385. So rail- lantic, &c. R. E. Co., 35 N. H. 569. A way companies are liable for diverting a railroad was constructed across a water- stream of water from its natural course to course without making a culvert, thereby the injury of a neighboring proprietor, setting back the water and injuring land Hatch v, Vermont Central R. B. Co., 25 some distance from the railroad. It was Vt. 49. SEC. 255.] WHAT IS PBOf EETY KEQUIBIN6 COMPENSATION. 1005 lessened by the circumstance that it would subject them to more expense than some other mode which would be productive of dam- age to others.^ If a stream is diverted from its course, or if the water is penned back by the construction of the road, even though the statute makes no provision to th^t eifect, it is bound to restore the stream so far as is practicable, and to build suitable culverts or openings for the water, so as to produce as little damage as possible to the property of riparian owners,^ or it will be liable to owners of laud; whether upon the stream or not, for an overflow, of water thereon caused by its mode of constructing its road.^ The rule is well expressed in a New York case,* that " if a railroad company in constructing its road, necessarily diverts a stream from its natural channel, it is bound to restore and preserve it, in its former state of usefulness, as nearly as practicable in reference to the owners of property thereon, and it cannot burden such proprietor with the expense of preserving it in a condition of usefulness." ^ If a rail- way fails to perform its duty in these respects, it is liable to land- owners injured thereby for the damages sustained by them there- from, whether any portion of their land was taken for the. use of the road or not ; ^ as a railway company is exempted from liability for 1 In Pugh V. Golden Valley Ey. Co., bring suit for eighteen years, was not L. K. 12 Oh. Div. 274, it was held that an such an acquiescence as deprived him of act ■ifhich authorized the defendant to his right of action, — it appearing that at divert; the course of a river or road "in the time th4, water was diverted he in- order the mqre conveniently to carry the sisted that a culvert should he huilt so as same over, or under, or hy the side of the to retain it in its natural channel, and railway, as its officers may think proper," had from time to time expressed to agents is to be taken as out down and qualified' by of the company his, objections to the di- the proviso that it be an act necessary for version. Haynes v. Burlington, 38 Vt. making, maintaining, altering, or repair- 350 ; Pittsburgh , &c. R. R. Co. v. Gille- ing, and using the railway. Such a power, land, 56 Penn. St. 445 ; Chicago, &o. R. R. therefore, authorizes such a diversion only Co. v. Moffitt, 75 111. 524 ; South Western when the road of river presents an actual R. R. Co. v. Lee, 47 Ga. 38. obstacle to the construction of the line, * Brown v. Cayuga, &o. R. R. Co., 12 and not in a case where the diversion is N. Y. 486. merely for the purpose of saving the com- * Cott «. LewistonR. R. Co., 36 IT. Y. pany expense. 214. 2 Walker v. Old Colony R. R. Co., 103 ' Upon the same principle where a Mass. 1 ; Valley R. R. Co. v. Bohm, 34 railway company, by crossing a highway Ohio St. 114 ; March v. Portsmouth, &c. creates a necessity for a bridge, it must/ R. R. Co., 19 N. H. 372 ; Lyon v. Green not only construct the bridge, but also Bay, &c. R. R. Co., 42 Wis. 638. In keep it in repair, and may be compelled to Young V. Chicago, &c. R. R. Co., 28 Wis. do so by mandamus. People v. Troy & 171, it was held that the fact that after Boston R. R. Co., 37 How. Pr. (N. Y.) the diversion of a stream upon his land 427. by the construction of the roadrbed of a ^ Hatch v. Vermont Central R. R. Co., railroad company, the plaintiff did not 25 Vt. 49. In Miss. Central R. R. Co. v. 1G06 EMINENT DOMAIN. [chap. XIV, acts producing injury to adjoining estates only when sucli injuries necessarily result from the careful and proper execution of its powers, and so can be said to have been within the contemplation of the legislature.- Thus, if a railway company in the original con- struction of its roadway opens up an underground spring, which, after several years inundates its track, it has no authority, by means of an artificial channel, to turn the water upon the lands of another not included in its location, unless such mode of getting rid of the water is reasonably necessary to the maintenance of its road ; and whether it is or not, is a question for the jury.^ So where a railway Mason, 51 Miss. 234, it was held that if a railroad company, by making imperfect sluices or other passages for streams over which they pass, injure by. overflow the land of an adjoining proprietor, the com- pany is bound for the damages sustained by the obstruction of the stream. In Miss. Central R. B. Co. v. Carruth, 51 Miss. 77, it was held that where a railroad company, by filling up a trestle under their road, and by making ditches, cattle-guards, and culverts,' tbo small to carry off the water, overflows adjoining lands, and the owner thereof sustains damages by reason thereof, the railroad company is liable to the owner for the amount of the damages actually sustained. Eaton v.' Boston, &c. E. R. Co., 51 N. H. 504. 1 Curtis V. Eastern E. K. Co., 14 Allen (Mass. ), 55. In this case it was held that the company was liable for the damages resulting from such an act, although the water reached the plaintiff's land by trickling from the channel through the embankment of the raili;oad and mingled with the surface drainage. In Bel- linger V. N. Y. Central R. R. Co., 23 N. Y. 42, the defendant was sued for damages resulting, as was stated in the complaint, for " negligently, wrong- fully, and improperly," constructing its railway across a creek and, the low-lands forming the valley of the creek, so that the lands of the plaintiff were repeatedly overflowed, and the soil, fences, etc., washed away. The judge charged the jury that the conipany was not bound to guard against every possible contingency, but that they were 'bound to see that the openings were sufficient for any freshet that might reasonably be expected to occur on the stream ; and this ruling was sustained by the Court of Appeals. In Conhoctou Stone R. R.' Co. v. Buffalo, &c. R. R. Co., 3 Hun (N. Y.), 523, aflSrmed, 51 N. Y. 373, the defendants offered the evidence of experts to show that the bridge (which was the cause of complaint) was built with care and skill, with suitable openings for the discharge of the water; and for the' rejection of this evidence the verdict was set aside. See also Estabrook v. Peterboro, &c. R. R. Co., 12 Cush. (Mass.) 224; Perry v. "Worcester, 6 Gray (Mass.), 544 ; Blood v.. Nashua, &c. R. R. Co., 2 Gray (Mass.), 137 ; Mellen v. Western K. R. Co., 4 id. 301 ; Southside R. R. Co. v. Daniels, 20 Gratt. (Va.) 344; Johnson V Atlantic & St. Lawrence R. E. Co., 35 N. H. 569 ; Spencer v. Hartford, &c. R. R. Co., 10 R. I. 14 ; West V. Louisville, &c. R. R. Co., 8 Bush (K}'.), 404; Whittaker v. Del. & Hud. Canal Co., 87 Penn. St. 34 ; Bagnall v. London, &c. Ry. Co., 7 H. & N. 423 ; Lawrence v. Great Northern Ry. Co., 16 Q. B. 343. But it is held that they are not responsible for injuries resulting from the insuflicienoy of their culverts to carry off the waters of an ex- traordinary flood. Pittsburgh, &c. R. E. Co. V. Gillelaud, 56 Penn. St. 445. Where a railroad crossed the mouth of a ravine, or arroya, partly by a bridge and partly by an embankment composed of materials which would not resist the action of water, and a flood washed out the em- bankment, it was held that the company was liable for the killing of a passenger by the precipitation of a train into the chasm SEC. 255.] WHAT IS PKOPEETY KEQUIRING COMPENSATION. 1007 icompany is 'authorized to construct a bridge across a river, sucli au- thority is presumed to be given upon condition that it will so erect the bridge as not unnecessarily to obstruct the flow of the water ; and if it erects the bridge in such a manner as to set. the water back upon adjoining lands, which by reasonable precaiitions could have been avoided, unless it shows that it took such precautions it is liable for the damages ensuing frgm such obstruction of the stream.^ In some of the States, it is held that a railroad company has no right, by an embankment or other artificial means, to obstruct the natural flow of the surface water, and thereby force it, in an in- creased quantity, upon the lands of another ; and if it does so, it is liable for any injury that the owner of the land may sustain by reason thereof.^ And this appears to be the general doctrine, though at night ; but this, in view of all the cir- cumstances, for want of care iu the con- struction of the road, and not for wilful negligence./ Kansas Pacific R. Co. v. Lundin, 3 Col. 94 ; Kansas Pacific K. Co. V. Miller, 2 Col. 442 ; Countess of Kothe V. Kirkaldy Water Works Coni'rs, 6. Sess. Cas. 4th Series (Sc), 974 ; Houston, &c. E. Co. V. Parker, 50 Tex. 330. 1 Mellen v. Western R. Co., 4 Gray (Mass.), 301 ; Omaha, &c. R. Co. v. Brown, 29 Neb. 492 ; 44 Am. & Eng. R. Cas. 475. 2 Toledo, &c. R. Co. v. Morrison, 71 111. 616 ; Raleigh, &c. Air Line R. Co. v. Wicker, 74 , N. C. 220 ; Wabash, &c. Canal Co. v. Spears, 16 lud. 441; Gillh.im V. Madison Co. R. Co., 49 111. 484; Hund- man v. North-Eastern Ry. Co., 3 C. P. Div. 1 68 ; Jacksonville, &c. R. Co. v. Cox, 91 III 500 ; Sabine, &c. R. Co. o. Brous- sard, 75 Tex. 597 ; 41 Am. & Eng. R. Cas. 26 ; Jordan, v. St. Paul, &e. R. Co., 42 Minn. 172 ; 41 Am. & Eng. R. Cas. 1. See also Mississippi, &c. R. Co. v. Archi- bald, 67 Miss. 38 ; 41 Am. & Eng. R. Cas. 4 ; Bell V. Norfolk, &c. R. Co., 101 N. C. 21 ; 37 Am. & Eng. R. Cas. 270 ; Rowe v. St. Paul, &c. R. Co., 41 Minn. 384 ; 39 Am. & Eng. E. Cas. 255. Compare Wells V. New Haven, &c. Co., 151 Mass. 46 ; 44 Am. & Eng. R. Cas. 491. Thus, whore a railroad is so constructed as to cau.se land to be inundated with surface water, and thereby rendered untjUable, the owner may recover for the injury. Bentonville R. Co. V. Baker, 45 Ark. 252. A railway company must so maintain its embankments as to permit the passage of the surface water produced by the cli- mate of the country. Cornish v. Chicago, &c. R. Co., 49 Iowa, 378. Where one sus- tained damage to' his property resulting from the freezing, upon his premises, of water which flowed thereon from the tank of a railroad company, the damage being sustained in consequence of the freezing and detention thereby of the water, but for which the water would have flowed down and off' the premises without injury, it was held that the company was liable, as the injury was one which might reasonably and naturally have been expected to result ; and that the plaintiff could recover for damages resulting from the melting of the ice in the spring, although this occurred some time after the suit was brought. In a suit for damages caused by water from the tank of a railroad company overflowing the plaintiff's premises, it appeared that some of the water which caused the injury did not come from the tank, but that, to some extent, it was surface water which flowed down from a hillside above ; it was held that an instruction that, if the jury could not determine what part of the damages was caused by the water from the tank, they could in no event find for the plaintiff" more than nominal damages, was erroneous. Chicago, &c. R. Co. v. Hoag, 90 111. 339. One who has conveyed to a railroad company a strip of land for a right of way may recover of the company 1008 EMINENT DOMAIN. [chap. XIV. it has not been followed in Massachusetts. In a case in this State ^ the defendant, the manager of a railroad, claimed the right to collect water in a ditch and discharge it upon the lands of a plaintiff, where it had not been accustomed to flow, on the ground that it was necessary to the proper construction and maintenance of the railroad. It was held that if the right existed it constituted an easement to which .plaintiff's land was subject. As between the owners of con- .tiguous estates, it is settled in this Commonwealth that the right of an owner of land to occupy. and improve it as he may see fit, either by erecting structures or by changing the surface, is not restricted by the fact that such use of his own land will cause surface water to flow over adjoining lands in greater quantities or in other directions than it was accustomed to flow. If by this use the adjoining land is damaged, it is damnum absque injuria.^ But the weight of authority is in favor of a different view ; the maxim sie utere tuo ut alienum for loss of his crops by the negligent build- ing of its road, so that surface water ac- cumulated and Was precipitated on his land, even though he has allowed the com- pany to dig a ditch on his premises, which proved ineffectual. An owner of land has no right so to construct a ditch or em- bankment as to collect and precipitate surface water in unnatural quantities upon the land of an adjoining owner; and equity will restrain such act. Hiclcs v. Sil- liman, 93 111. 255. Where, in such case the slope of the land is apparent, the opinions of witnesses as to the flow and discharge of surface water upon the servient heritage will not be required ; and especially where the latter lies so low as to be barely sus- ceptible of cultivation at ordinary drainage. In such case the complainant will be en- titled to the relief sought, although he does not prove threatened injury to the full extent charged ; as, for instance, that the defendant was intending to drain "air' the water from the pond upon the complainant's land. Jacksonville, &o. E. Co. «.-Cox, 91 111. 500. 1 Rathke v. Gardner, 134 Mass. 14. 2 Rathke v. Gardner, 134 Mass. 14 ; Cannon v. Hargadon, 10 Allen (Mass.), 106. The right, it is said, exists in the owner by virtue of his dominion over his own soil, and not by vii-tue of any ease- ment or servitude over the lower land. That this is so is clear from the fact that the adjoining owner may himself erect such structures or take such measures as he sees fit on his own land to divert the surface water and prevent its flowing upon his land ; and in so doing he does not violate or obstruct any easement of the owner whose land is of a higher level. Bates v. Smith, 100 Mass. 181. See Parks v. New- buryport, 10 Gray (Mass. ), 28. But there is the well-settled distinction, that al- though a man may make any fit use of his own land which he deems best, and will not be responsible for any damages caused by the natural flow of the surface water incident thereto, yet he has not the right to collect the surface water on his own land into a ditch, culvert, or other artificial channel, and discharge it. upon the lower land to its injury. And if he does this, and continues it adversely under a claim of right for more than twenty years, he thereby acquires <i right which is in the nature of a servitude or easement upon the lower land. White v. Chapin, ,12 Al- len (Mass.), 516; Curtis v. Eastern R. Co., 14 id. 55, and 98 Mass. 428. As between adjoiriing land-owners, therefore, if one owner thus discharged water through an nrtificial channel upon the lower land of the other, and if he claimed the right to do 80, either by grant or prescrip- tion, the right to an easement would be concerned in the case. SEC. 255.] WHAT IS PBOPBJBTy REQCTIRING COMPENSATION. 1009 non Icedas forbids that any individual or corporation should con- centrate the surface water on his own lands and then discharge them upon the lands of another to the material injury of the latter.^ '' McCormiok v. Kansas City, &o. R. Co., 70 Mo. 359 ; 35 Am. Eep. 431; Gill- ham V. Madison CountyR. Co., 49 111. 487 ; Templeton v. Voshloe, 72 Ind. 134 ; 37 Am. Rep. 150. Nor has a company any right to erect embankments to divert the waters overflowing from a natural sti'eam in time of freshets and turn it upon the, lands of others. Shane v. Kansas City, &c. R. Co., 71 Mo. 237; 36 Am. Rep. 480. In Gormley v. Sauford, 52 111. 160, . Lawebnce, J., said : " This question has already been decided by this court in Gill- ham V. Madison Co. E. Co., 49 111. 487. ... In the opinion filed 'in that case we said, although there was a conflict of au- thorities among the courts of this country, yet the rule forbidding the owner of the servient heritage to obstruct the natural flow of surface water was not only the clear and well-settled rule of the civil law, hut had been generally adopted in tjie com- mon-law courts both of this country and in England. Various cases bearing on each side of the qliestion are cited in that opiu-, ion, and it is not necessary to cite them again. This rule w^s thought hy this court, in that case, to rest upon fi sound basis of reason and authority, and was adopted. We find nothing in the argu- ment or authorities presented in the pres- ent case to shake our confidence in the conclusion at which we then arrived. In our judgment, the reasoning which leads to the rule forbidding ^ the owner of a field to ovei'flow an adjoining field by ob- structing a natural water-course fed by remote springs applies with equal force to the obstruction of a natural channel through which the surface waters, derived from the rain or snow falling on such field, are wont to flow. What difference does it make in principle whether the, water comes directly upon the field from the clouds above, or has fallen upon re- mote hills, and comes thence in a running stream upon the surface, or rises in a spring upon the upper field and flows upon the lower ? The cases asserting a different rule for surface waters and running streams furnish no satisfactory reason for the dis- tinction. It is suggested in the argument, if the owner of the superior heritage has a right to have his surface waters drain upon the inferior, it would follow that he must allow them so to drain, and would have no right to use and exhaust them for his own benefit, or to drain them in a different diiection. We do not see why this result should follow. The right of the owner of the superior heritage to drainage is hased simply on the principle that nature has ordained such drainage ; and it is but plain and natural justice that the indi" vidual ownership arising from social laws should be held in accordance with pre- existing laws and arrangements of nature. As water must flow, and some rule in re- gard to it must he established where land is held under the artificial titles created by human law, there can clearly be no other rule, at once so equitable and so easy of application, as that which .enforces natural laws. There is iiolsurprise or hard- ship in this, for each successive owner takes with whatever advantages or inconvenien- ces nature has stamped upon his land." In Shane v. Kansas City, &e. R. Co., 71 Mo. 237 ; 36 Am. Eep. 480, Napton, J., .said : " I confess, for myself; that, like Mr. Justice Lawbencb, I am unable to perceive the distinction between surface water criming, as he says, from the clouds, and that which rises in a spring, especially in this case, where the surface water comes from the Eocky Mountains, a thousand miles from where the overflow of the Missouri River occurs, occasioned, as it is, not by rains or snows in its vicinity, but by the melting of snows upon the mountains^ and by the accession of a thousand tribu- tary streams.- But it must be considered as well settled, that this overflow of the Missouri is what is in law termed ' surface water.' In Kauffman v. Griesemer, 26 Penn. St. 408, the instructions of the judge who tried the case were, that the water which the defendant ohstructed was not a living stream, but came from rains and snows ; but that the accustomed, 1010 EMINENT DOMAIN. [chap. XIV. In a New York case,^ the question as to the right of parties to deal with surface water arising upon their premises, when its diver- though not continuous, flowage of such water was, in the eye of the law, a stream, and no more to be obstructed than if it was a channel of a continuous stream that never failed. These instructions were ap- proved by the Supreme Court, and that court observed that : ' The plaintiffs had no right to insist upon his receiviug waters which nature never intended to flow there, and against any contrivance to reverse the order of nature he might peaceably take measures of protection.' In Martin v. Riddle, 26 Penn. St. 415, Judge Lovk'RiB says : ' Where two fields adjoin, and one is lower than the other, the lower must necessarily be subject to all the natural flow of water from the upper one. The inconveniencte arises from its position. , . . . Hence, the owner of the- lower ground has no right to erect embank- ments whereby the natural flow of the water from the upper gi'ound shall be stopped, nor has the owner of the upper ground a right to make any excavations or drains by virhich the flow of water is diverted from its natural channel, and a new channel made on the lower ground ; nor can he collect into one channel waters usually flowing ofl' into his neighbor's field by several channels, and thus increase the wash upon the lower fields.' The Su- preme Court of Ohio^ in Butler v. Peck, 16 Ohio St. 343, unhesitatingly adopted the principle thus decided in Pennsyl- vania. The question in that case was ' whether an owner of land having upon it a marshy sink or basin of water, which basin, as to a considerable portion of the water collected on it, has no outlet, may lawfully throw such water by artificial drains upon the land of an adjacent pro- prietor. ' The court say : ' We are clear that no such right exists. It would sanc- tion the creation, by artificial means, of a servitude which nature has denied. The natural easement arises out of the relative altitudes of adjacent surfaces as nature made them, and those altitudes may not lina, ' the Supreme Court, in Overton v. Sawyer, 1 Jones, L. 308, observed : ' The defendant had a -right to have the water allowed to pass off his land through the natural drain ; and when the plaintiff, by means of the embankment across this natural drain, obstructed the water and interfered with this right, this latter (the defendant 1 had a cause of action against the former for causing the obstruction.' What is said by the Court of EiTors in New Jersey, in the case of Earl v. DeHart, 12 N. J. £q. 280, seems to conform to Mr. Justice Lawrence's views in thef^ Illi- nois case we have cited, aiid to apply to the slough, or swale, or hollow, through which the waters of the river passed when they overflowed its banks, and across which the defendant's road was built. The'Chan- cellor says : ' The facts admitted in the answer show that this is an ancient stream or water-course, and that it is «. natural water-course, in the etymological use of the tei-m. A water-course is defined to be a channel or canal for the conveyance of water, particularly in draining lands. It may be natural, as when it is made by the natural flow of the water caused by the general superficies of the surrounding land, from which the water is collected into one channel ; or it may be artificial, as in case of a ditch or other artificial means used to divert the water from its natural channel, or to carry it from low lands, from which it will not flow in consequence of the natural formation of the surface of the surrounding land. It is an ancient water- course if the channel through which it naturally runs has existed from tim m- memorial. Whether it is entitled to be called an ancient water-course, and as such legal right can be acquired and lost in it, does not depend upon the quantity of water it discharges. Many ancient streams of water, which, if dammed off, would inundate a large region of country, are dry for a great portion of the year. If the face of the country is such as neces- be artificially changed to the damage of sarily collects in one body so large a quan- an adjacent proprietor.' In North Caro- tity of water, after heavy rains and the » Waflle V. New York Central R. Co., 58 Barb. (N. Y.) 421. SEC. 255.J WHAT IS PROPERTY REQUIRING COMPENSATION. 1011 sion affected the value of mill-property in part dependent upon such water for its motive power, was very ably discussed in the through which the waters of the Missouri River passed in times of iloods was put to the jury, in an instruction given by the court, and was found by the jury ; and upon the evidence submitted they could not have found otherwise than they did, for upon this point all the witnesses were agreed, though they^o'nld not speak of time immemorial, beyond which the memory of man did not reach. The prin- ciples which are at the bottom of this case, if taken from the civil law, — a sys- tem which, as Judge Dillon remarks in Livingston v. McDonald (21 Iowa, 164), ' embodies the accumulated wisdom and experience of the rehned and cultivated Roman people for a thousand years, and, though not binding as authority, is of great service to the inquirer after the prin- ciples of natural justice and right,' and from which many of the usages of the common-law and equity courts, both in England and this country, are derived, — were recognized by this court as early as the case of Laumier v. Francis, 23 Mo. 181, in which the opinion of this court _ was delivered by Judge Leonard, when associated with Judges Scott and Ryland, all three of whom are well known in this State, and have been in the front rank of our most eminent jurists. We deem it unnecessary to refer particularly to the de- cisions in Louisiana, as they are uniformly in conformity with the principles of the cases already cited from Pennsylvania 'and other States. On the other hand, the cases in Massachusetts and several other of the New England States, following the case of Gannon v. Hargadon, 10 Allen (Mass.), 106, adopt the rule of allowing every proprietor to control surface water as he pleases, without regard to contigu- ous proprietors. Still, as even in these States this right is carefully distinguished from similar rights where a water-course exists by grant or prescription, it is not entirely certain how the courts would apply these doctrines to a case like thS present. So, in New York, the general principle asserted* in Gannon v. Hargadon seems to be maintained in Goodale v. Tattle, 29 N. Y. 459, where Judge Denio melting of large bodies of snow, as to re- quire an outlet to some common reservoir, and if such water is regularly discharged through a' well-defined channel, which the force of the watei' has made for itself, and which is the accustomed channel through which it flows and has flowed from time immemorial, such channel is an ancient natural wat^r-course.' The court there- fore held that where the surface of the ground is such as to collect water at dif- ferent seasons of the year to an extent which requires an outlet, and if such is always the case in times of heavy rains and melting snow, and if that flow of water produced a natural channel through the lands of different persons where such . accumulated surplus water has always been ■ accustomed to run, a court of equity would protect such channel from obstruction to the injury of any one through whose land it runs. This corresponds with' the view of the judge in Kauffrnan v. Griesemer (26 Penn. St. 408), sapra. The judge who tried this case observes : ' The declara- tion speaks of a stream of water being used to flow. There is no stream, in the usually received sense of that word, as be- ing a continuous flowage of water. The water that flowed down was such as came from springs which do not seem ever to have had a continuous flow that reached defendant's land, and such as came from rains and snows. But the aconstomed, though not continuous, flowage of water is a stream in the eye of the law, and its channel is no more to be obstructed than if it was -the channel of a stream that never failed. . . Whatever is the natural direction of the excess of waters in floods and freshets, as in seasons of ordinary water, must be left as' nature has made it. No one has a right to divert it from him- self and east it upon his neighbor, to save himself at the expense of another.' Of course the immemorial usage spoken of in the New Jersey case can hardly be claimed here, since there was no witness in the case who spoke of having any knowledge of the river floods beyond thirteen years before the trial ; but the question as to this slough being the natural channel 1012 EMINENT DOMAIN. {CHAP. XIV. opinioa of the court. In that case the defendant, in the construc- tion of its railroad, at a distance of two miles- from the plaintiff's mill, for the protection of the road-bed, dug two ditches, one on either side of its road, to protect the embankment. The plaintiff had a mill and a mill-pond on a stream formed from the surface waters arising from the low boggy lands in the vicinity. The effect of the construction of the road, and the ditches referred to, was to prevent the water from going to the plaintiff's mill in its usual volume in dry seasons, and caused it tp be discharged there in such volumes in times of high water, that the plaintiff could' not use it for the operation of his mill, but was compelled to throw open his flood-gates and allow it to run to waste. Johnson, J., speaking for the court, said : "There js no dispute about the facts in this case. The plaintiff's saw-mill is upon a small stream nearly two miles below the point where the defendant's road crosses such stream. At that point the land is naturally low and marshy, and the defendants, in con- structing their road, raised the bed thereof above the natural surface of| the land, by excavations on each side, which made ditches, by means of which the surface water, of this low, marshy land was, for a considerable distance, drawn off and passed into this stream on each side of the road-bed, where the stream is crossed by the road. 'These ditches are wholly upon the defendants' land, and conduct the surface water into this stream upon their own land. The only cause of action stated in the complaint is, iu substance, that, by means of these ditches, the water from this low land is drawn off and conveyed into this stream more rapidly than it would be other- wise; and in the wet season, and in times of flood and high water, says : ' Iu respect' to the running off of operations or improyements. The facts surface water, ... I know of no prin- in the present case show that the de- ciple which will prevent the owner of land fendant could have built a rock culvert from filling up the wet and marshy places at the crossing of this hollow, at about in his own soil for its amelioration and the same cost with the dirt embankment, his own advantage, because his neighbor's The engineer seems to have been misled land is so situated as to be iucommoded by the dry and rich soil which extended by it.' This is a mere reiteration of the to the very bottom or lowest part of the doctrine of suave qui pent, or, as popu- swale, portions of which were in cultiva- larly translated lAto our vernacular, ' the tion ; and although the road was equally devil take the hindmost.' We prefer that strong and safe with a rock culvert or a asserted by thi.s court in Laumier v. Fran- dirt embankment, the engineer preferred cia, and repeated in McCormick v. Kansas the latter, as ' not so liable to wash out City, &c. R. Co., 70 Mo. 359; 35 Am. when floods come, and drift-wood and Rep. 431. Nor do we think that equi- other debris fill the culvert and injure it table and just principles, as we understand or the bank adjoining if " See also St. it, will materially retard agricultural Louis, &c. R. Co. v. Harris, 47 Ark. 340. SEC. 255.] WHAT IS PEOPEKTY BEQUIEING COMPENSATION. 1013 fiUed the stream and the plaintiff's pond so full, and increased the volume of water to such an extent, that he could not use the same, but was compelled to open his gates and let the water flow without using the same ; and that, as the dry season came on, the water was, by the same means, drawn off so rapidly from these low, wet grounds, that the stream did not keep up as it did before, and the supply which said stream was accustomed to receive gradually from such wet lands was earlier exhausted, and the -plaintiff's mill thereby was compelled' to lie idle and unemployed for want of water for a much longer period than formerly, and a much longer period than it would, had these drains not been made. The testimony tended to sustain these allegations in the complaint. It appeared from the evidence that there was no nat,ural outlet or water-course from this low wet land into the creek, but a gentle and gradual inclination of the sur- face for a long distance toward the stream. The defendant's ditches extended through these lands for a distance of over two miles, and it appears that the owners of the lands along this distance, adjacent to the railway, have availed themselves of the defendant's ditches, and drained the surface water from their lands, by means of ditches through the same, emptying into the defendant's ditches. By these means the surface' water is discharged from these wet lands, and the same are rendered tillable and productive, instead of remaining waste lands, and serving as a mere reservoir to hold water for the use of the plaintiff's mill, for a few more days or weeks each summer. "It is entirely clear that these facts constitute no cause of action. Every person has the unquestionable right to drain the surface water from his own land, to render it more wholesome, useful, or productive, or even to gratify his taste or will; and if another is inconvenienced or incidentally injured thereby, he cannot complain. No one can divert a natural water-course and stream through his land to the injury of another with impunity, nor can he, by means of drains or ditches, throw the surface watex from his own land upon the land of another to the injury of such other. But where a person can drain his own land without turning the water upon the land of another, or where it can be done by drains emptyirig into a natnral stream and water-course, there can be no doubt of his right thus to drain, even though the effect may be to increase the volume of water unusually at one season of the year, or to dimin- ish the supply at another. 1014 EMINENT DOMAIN. [chap. XIV. " 'No one can be required to suffer his land to be used as a reser- voir or water-table for the convenience or advantage of others.^ In respect to the running off of surface water caused by rain or snow, I know of no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil, for its amelioration and his own advantage, because his neighbor's land is so situated as to be incommoded by it. Such a doctrine would mil- itate against the well-settled ' rule, that the owner of land has full dominion over the whole, above and below the surface." ^ , 1 Eawstron v. Taylor, 11 Exch. 369 ; Goodale v. Tuttle, 29 N. Y. 469. ^ Atchison, Topeka, &o. B. R. Co. v. Hammer, 22 Kan. 763 ; Munkers v. Kan- sas City, &c. R. R. Co., 60 Mo. 334. The owner of an upper field may not construct drains or excavations so as to form new channels on to a lower field, nor can he collect the water of several channels and discharge it on the lower field so as to in- crease the wash upon the same. His right to make drains on his own land is re- stricted to such as are required by good husbandry and the proper improvement of the surface of "the ground, and as may he discharged , into natural channels, without inflicting palpable and unnecessary injury on the lower field. Templeton v. Voshloe, 72 Ind. 134 ; 37 Am. Rep. 160. And the owner of land may, upon the boundaries thereof, not interfering with any natural or prescriptive water-course, erect such barriers as he may deem necessary to keep off surface water or overflowing floods coming from or across adjacent lands ; and for any consequent repulsion, turning aside, or heaping up of these waters to the injury of other lands, he is not responsible; but such waters as fall in rain and snow upon his lands, or come thereon by sur- face drainage, from or over contiguous lands, he must keep within his bounda- ries, or permit them to flow off' without artificial interference, unless, within the limits of his land, he can turn them into a natural water-course. Cairo & Vincennes R. E, Co. V. Stevens, 73 Ind. 278. In O'Connor u. Fond Du Lac R. R. Co., 52 Wis. 626, it was held that the fact that a railway company in constructing its road-bed has filled up an artificial ditch on the land' of a third person by which the surface water was conducted to the river and thus turned the water back upon the plaintiff's land, constituted no cause of action. See opinion of Cole, J., in which the questions involved are ably reviewed. In Hoyt v. City of Hudson, 27 Wis. 656, it was in eff'ect held that under the rule of the common law, an owner has a right to obstruct and hinder the flow of mere surface water upon his lauds from the land of other proprietors ; that he may even turn the same back upon the land of jhis neighbor, without incurring liability for injuries caused by such ob- structions. The same doctrine was laid down in Pettigrew v. Evansville, 26 Wis. 223, where the question is very fully con» sidered ; also in Fryer v. Warne, 29 id. 611. There is a discrepancy in the decis- ions of the diff'erent States upon this sub- ject, because some follow the rule of the civil law, which gives a servitude on the lower in favor of the superior estate. But here the rule of the common law has been already adopted. According to that rule, no natural easement or servitude exists in favor of the owner of the higher ground to the flow of mere surface water over the lower estate, but the owner of the latter may detain or divert the same with- out rendering himself liable in damages therefor. But this rule doe(s not apply to a water-course, which implies a stream usually flowing in a definite channel, though it may at times be dry. Enlrich V. Richter,~37 Wis. 226. But a water- course does not include mere surface water which is supplied by rains or melting snow flowing in a hollow or ravine on the land. But see Palmer v. Waddell, 22 Kan. 862, and Gibbs v. Williams, 25 id. 214, where a contrary rule is adopted in SEC. 255.] 'WHAT IS PROPERTY REQUIRING COMPENSATION. 1015 The company is not liable to an action for interference with sub- terranean water caused by excavations in its roadway, unless it is grim, 7 111. App. 306 ; Dickinson v. Wor- cester, 7 Allen (Mass.), 19 ; Morrison v. Buoksport, &c. R. R. Co., 67 Me. 553 ; Wakefield v. Newell, 12 R. I. 75 ; Greely V. Me. Central R. R. Co., 62 Me. 20(r. In Wagner v. Long Island R. R. Co., 2 Hun (N. Y. ), 633, Talcott, • J., said : " This is an action to recover damages against the defendant for constructing the embankment for its road along and across the adjoining land of the plaintiff, where- by the usual flow of the water across and off from the plaintiff's premises, was dammed up and obstructed, and caused to accumulate, whereby the plaintiff sus- tained damage. It seems to be perfectly well settled, that no action will lie against a party for so using or changing the sur- face of his own land as to dam up and obstruct the flow of surface water, Which had been accustomed to flow over and across ,the land of his neighbor. The question involved in the case is precisely the .same in principle as that which came before the Supreme Court of Massachu- setts, in Parks v. The City of Newbury- port, 10. Gray (Mass.), 28. In that case, the judge on the trial had instructed the jury that if, for twenty years, the water accumulating on the land in the rear of the lots in question had been accustomed to find its outlet over the land of the de- fendants, 'and the same had been ob- structed by the acts of the defendants, in such a way as to turn it from their own land across land of the plaintiff, and occasion substantial injury to the property of the plaintiff, without his fault, or want of care on his part, then the defendants would be liable. The plaintiff, having recovered under this instruction, the ver- dict was set aside upon the following opinion by the court : ' The declaration is for obstructing a water-course, and the instruction allowred the jury to find for the plaintiff, though there was no water- cotirse. , No action will lie for the inter- ruption of mere surface drainage.' See also Dickinson v. Wofcester, 7 Allen (Mass.), 19 ; Swett v. Cutts, 50 N. H. 439 ; Goodale v. Tuttle, 29 N. Y. 466. These principles, in the abstract, were certain cases and under certain conditions. "The obstruction of surface water or an alteration in the flow of it, affords no cause of action in' behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil." BiGELOw, C. J., in Gannon v. Hargadon, 10 Allen (Mass.), 106-110. But the owner of the lower land would have no right to obstruct a water-course or divert a stream of i water so as to cause damage to another without being respon- sible therefor. For an iiijury thus occa- sioned he would be liable upoi} general principles as well as by the statute. That liability has often been enforced by the , courts. Young v. C. & N. W. R. R. Co., 28 Wis. 171 ; Lyon v. G. B. & Minn. R. R. Co., 42 id. 538 ; Brown v. C. & S. R. R. Co., 12 N. Y. 486 ; Hatch v. Vt. Central R. R. Co., 25 Vt. 49,; Lawrence v. Railway Co., 71 Eng. C. L. 643 ; Ham- den V. N. H. & N. R. R. Co., 27 Conn. 158 ; Johnson v. A. & St. L. R. R. Co., 35 N. H, 669, are a few of the many cases which might be cited in support of that proposition of law. In Waterman v. Conn. & Pass. Rivers R. R. Col, 30 Vt. 610, it was held " that a railroad company may, as a question of prudence and care, as well be required to have regard to the preven- tion of damage to a land-owner by the accumulation of surface water merely, as of a running stream, when the geographi- cal formation and surrounding circum- stances are such as to make it apparent td reasonable men that such precautions are necessary ; .and that ordinaiily what would be a reasonable performance of that duty under a given state of circumstances would be a question of fact, and not a question of law for the court." A pur- chaser of land over which surface water naturally flows from that of a coterminous proprietor takes it with the burden of receiving such drainage, and cannot im- pede it to the injury of the superior , heritage. Nor can the owner of the su- perior heritage rightfully polleot the water artiflcially, and thus flow the neighbor's land, without his consent, Mellor v. Pil- 1016 EMINENT DOMAIN. [chap. XIV. running in a defined stream.^ In all cases, in order to recover for this class of injuries, they must appear to be the result of either unauthorized or negligent acts, and the remedy is open either to one conceded by the learned justice who tried the cause ; but we think the defendant was deprived of the-benefit of tliem by the refusal to nonsuit, and by certain instruc- tions which were given to the jury. It was left to the jury to find, upon the evidence, whether there existed a water-course which the defendant had obstructed. We think this was erroneous in the case, both upon the pleadings and the evidence. First, it is to be observed that the plaintiff did not, in his complaint, claim that there had existed over this land any stream or water-course which the defendant had ob- structed. He says that ' prior to the coli- struction of such embankment, during the winter season, large quantities of water flowed soine distance above the plaintiff's premises, along and parallel with the aforesaid highway, and passed the plaintiff's premises without collecting there.' This is a" statement which seems plainly to mean that such had been the natural flow of the surface water; and such, we think, the evidence on the part of the plaintiff plainly showed it to be in fact. The plaintiff's complaint was plainly founded on the theory that the defendant could not lawfully make any embankment on its own land which would so obstruct the natural flow of sur- ' face water during thaws and freshets as to cause it to accumulate on tlie land of the plaintiff, but was bound by means of sufli- cient culverts, or otherwise, to provide some means whereby this water should be disposed of. ' And the gravamen of the plaintiff's action was the alleged negli- gence of the defendant in constructing its embankment without providing sufficient pipes and culverts to discharge the surface water. A water-course, according to the definitions of the authorities, ' consists of bed, banks, and water ; yet, the water need not flow continually f and there are many water-courses which are sometimes dry. There is, however, a distinction to be taken in law between a regular, flow- ing stream of water, which at certain sea- sons is dried up, and those occasional bursts of water which, in times of freshet or melting of ice and snow, descend from the hills and inundate the country. To maintain the right to a water-course or brook, it must be made to appear that the water usually flows in a certain direction and by a regular channel, with banks or sides. It need not be shown to flow con- tinually, as stated above ; and it may at times be dry, but it must have a well-de- fined and substantial existence.' Water flowing through^ a hollow or ravine, only in times of rain or melting of snow, is not, in contemplation of law, a water-course." Wood on Nuisances, 308, 311. But such an act may be an element of damage to be considered in assessing damages for land •taken. Walker v. Old Colony R. E. Co., 103 Mass. 10. And it is liable where, the damage results from the proper construc- tion of its works. Waterman v. Conn. & Pass. River R. R. Co., 30 Vt. 610; Hooker v. Kansas City R. R. Co., 60 Mo. 329. In McCormack v. Kansas t'ity, &c. K. R. Co., 70 Mo. 359, 35 Am. Rep. 431, it was held that a railway company has no right to concentrate the surface water on its roadway, and precipitate it on a neighbor's land, although it would. natur- ally flow in that direction ; while in other cases it has been held that the mere rais- ing of an embankment by a railroad com- pany, or by an owner on his own land, thereby causing surface water to accumu- late to the damage of another land-owner, if not obstructing a natural channel, gives the latter no cause of action againist the former. 1 Hundman v. North-Eastem Ry. Co., L. R. 8 C. P. Div. 168 ; Galgay v. Great Southern, &c. Ry. Co., 4 Irish C. L. 456 ; Swett i>, Cutts, 50 N. H. 439 ; Goodale V. Tuttle, 29 N. Y. 459 ; Wheatley v. Baugh, 25 Penn. St. 528 ; Chatfield v. Wilson, 28 Vt. 49. But the fact that springs, wells, etc., are likely to be drained by the construction of the road is an ele- ment to be considered in assessing dam- ages for the taking of the land. SEC. 255.] WHAT IS PROPERTY REQUIRING COMPENSATION. 1017 whose land was taken for the purposes of the road, or to one whose land was not taken.^ Where' the State confers upon a railwaiy com- pany authority to build a road between certain termini, and there is no -provision in either the constitution or the statute to the con- trary, the company may take such lands' of the State along its route as are necessary for its road, without compensation, unless such lands have already been devoted to some special public use by the State.2 But a grant from the State of a right to build a railway does not operate as authority to take lands belonging to the general government without compensation,^ nor the lands of municipal cor- porations established by the State. 1 Estabrook v. Peterborough, &c. R. R. Co., 12Cush. (Mass.) 224 ; Foy *. Salem, &c." Co., Ill Mass. 27 ; Eaton v. Boston, &6. R. R. Co., 51 N. H. 504 ;, Robinson V. N. Y. & Erie R. R. Co., 27 Barb. (N. Y. ) 512. The damages which com- missioners are to appraise in the construc- tion of a railroad are those arising to the land-holder from a proper construction of the road in a prudent manner ; these musli be deemed to have been taken into account in the assessment of his land damages, and oannit be made the ground of recov- . ery in a subsequent action. But if the company in the construction, of their road are negligent in the exercise of the rights conferred upon them, whereby a land- owner is injured, it is not to be presumed in the absence of proof that the damages thus occasioned were taken into considera- tion by the commissioners ; and if it is not shown that such damages^ were allowed, they should go to a jury for settleiflent. Clark V. Vt. & Canada R. R. Co:, 28 Vt. 103. The rule that the assessment of com- pensation for land taken for a railway is deemed to cover all damages whether fore- seen or not, and whether actually esti- mated or not, which result from the proper construction of the road, does not prevent holding a railroad company liable to an action for damages resulting from the de- fective construction of their road, —i, e. g. where tte plaintiff's meadows were injured, in consequence of the insufficient culverts in the defendant's road, there being no impediment to the construction of proper ones. Suitable bridges and culveits to convey the water across' the railway at' or VOL. II. —14 near the places where it naturally flows, are necessary to the proper construction of the road, except where they cannot be made, or where the expense of making them is greatly disproportionate to the in- terest to be preserved by them. Johnson i>. Atlantic & St. Lawrence R. R. Co., 33 N. H. 569. In the absence of special laws, corporations acting within their powers of taking land, and with due care, are not liable for consequential damage. Hatch V- Vt. Central R. R. Co., 28 Vt. 142 ; Monongahela Nav. Co. v. Coon, 6 W. & S. (Penn.) 101. Where a railroad" company in the course of the oonstfuction' of the road turned a stream of water,. which by their charter they might do, restoring it to its former state as" near as practicable, and the new channel was properly guarded, so far as could be per- ceived at the time of turning it, it was held that the company were not obliged' thereafter to watch the operation of the water, and take precautions to prevent its encroaching upon the adjoining lands. And the rights and duties of the company in such ease are precisely the same as' if the land had been condemned by proceed- ings in invitum under the statute. Nor- ris V. Vennont Central K. E. Co., 28 Vt. 99. ' 2 Indiana Central R. R. Co. v. State, 3 Ind. 421 ; Davis v. East Tennessee, &c. R. R. Co., 1 Sneed (Tenn.), 94 ; Penn. E. R. Co. V. N. Y. & Long Branch R. R. Co., 24 N. J. Eq. 157 ; St. Louis, &c. R. R. Co. V. Trustees of Blind Asylum, 43 111. 303. * But the laws of the United States 1018 EMINENT DOMAIN. [CHAP. XiV. The doctrine as to the rights of laud-owners to deal with surface water is unsettled and conflicting, and no general rule, applicable in all the States, can be given. In some of them, it is held that the owner of land may improve or occupy it in such a way and for- such purposes as he may see fit, either by changing the surface or by tlje erection of buildings or other structures thereon, even though by so doing, the water accruing from rains and snows falling thereon is c'aused to stand upon adjacent lands or flow over them in unusual quantities, or in other directions than they have been accustomed to flow.^ In these States a railway company is held not to be bound to provide culverts or other means for the escape of surface water from higher adjacent' lands.^ But in several of the States, what is termed the civil-law rule is adopted, which imposes upon lower estates the burden or servitude of receiving and passing off the surface water from higher estates. This rule is adopted in Cali- fornia,^ Iowa,* Illinois,^ Ohio,^ Louisiana,'^ and Pennsylvania;^ and in those States it would doubtless be held to be the duty of railway companies to supply suitable means for the escape of surface water through their embankments. In a recent case in Iowa involving this question, this rule was adopted;^ and it was also held that it would not — in view of the fact that the means of securing the escape of such surface water, by the company, were easy — he presumed that the damages arising from its obstruction had been considered by the commissioners in appraising the land-owner's damages. Sec. 256. injuries to Riparian Rights on ITavigable Streams. — Of course, if a riparian owner of land upon a navigable stream has, by virtue of his ownership, any legal rights in the stream itself, or there are any such rights which are incident to his ownership, — if provide for this contingency. Eev. Stat. Cairo, &c. R. Co. v. Stevens, 73 Ind. 278 ; § 2477, Flint & Pere Marquette E. Oo. 38 Am. Eep. 139. V. Gordon, 41 Mich. 420. ' * Ogburti v. Connor, 46 Cal. 346 ; 13 1 Gannon w. Hargadon, 10 Allen (Mass.), Am. Eep. 213. 109; Parks v. Newburyport, 10 Gray * Cornish v. Chicago, &c. E, Co., 49 (Mass.), 28; Cairo, &e. R. Co. v. iStevens, Iowa, 378; Van Orsdol u. Burlington, &c. 73 Ind. 278; 38 Am. Eep. 139 ; Taylor v. E. Co., 56 Iowa, 470. Tiekas, 64 Md. 167; 31 Am. Eep. 114; ^ Gilfaam v. Madison Co. E. Co., 49 Grant v. Allen, 41 Conn. 156 ; Barkley v. 111. 484 ; Gormley v. Sanford, 62 id. 158. Wilcox, 86 N. Y. 140 ; 40 Am. Rep. 6 Loote v. Clifton, 22 Ohio St. 247. 519 ; Lynch v. Mayor, 76 N. Y. 69 ; - ' Hays v. Hays, 19 La. An. 351 ; 32 Am. Rep. 271 ; Gibbs v. Williams, 25 Delahoussaye v. Judice, 13 id. 587. Kan. 214; Morrison v. Bucksport R. Co., 8 Martin v. Riddle, 26 Penn. St. 415 ; 67 Me. 353; Sweet u. Cutis, 50 N. H. Kauffman v. Griesimer, 26 id. 407. *39- ' » Drake v. Chicago, &c. R. Co., 63 Iowa, 2 O'Connor v. Fond du Lac, &c. R. 802; 17 Am. & Eng. R. Cas. 45 ; 70 Iowa, Co., 62 Wis. 562 ; 88 Am. Eep. 784 ; 59 ; 19 N. W. Rep. 215. SEC. 256.J INJURIES TO RIPAEIAN BIGHTS, ETC. 1019 he is deprived of them by a railway company in taking land for its uses, he is entitled to compensation therefor.^ But the question as to whether he has any riparian rights which are incident to his land will depend entirely upon the character of the stream, and the ownership of the alveiis thereof. In this country there are three classes of navigable streams : 1. Those in which the tide ebbs and flows ; ^ 2. Those which, although non-tidal, are yet navigable in fact for "boats and lighters," and susceptible of valuable use for com- mercial purposes ; ^ and 3. Those which are floatable, or capable of valuable use in bearing the products of mines and forests, and the tillage of the country it traverses to mills or markets.* The principal distinction between rivers navigable in law and those which are navigable in fact arises from the difference in the rights of riparian owners. Eiparian owners upon salt-water streams or arms of the sea, or upon the sea itself, have no title in any por- tion of the land which is covered or washed by the waters of the stream or of the sea, at oi'dinary spring-tide. But lands adjoining the sea, or salt-water streams that are usually dry, and are only cov- - ered with, or washed by the Waters of the sea at extraordinary spring-tide, helong prima facie to the own6r of the adjacent property, ^ In Ashby i>. Eastern E. R. Co., 5 power to revote it whenever the para- Met. (Mass.) 398, the owner of a wharf mount interests of the public require it ; was held entitled to recover of a railway and the owner of the dam cannot recover company the damages resulting from con- damages for injuries done to it hy a rail- structingtheiv road so as, to impair its value, way company in oonstrnoting its railway In Rex V. Comm'rs, ko., 5 Ad. & El. 804, under its charter. N. Y. & Erie R. R. the owner of a towing-path, which was oh- Co. v. Young, 33 Peun. St. 175. struoted, or from which .the navigation ^ The Royal Fishers of the River Banne, was diverted hy the action of the com- Davy, 143. missioners for the improvement of the ' Chicago ■». McGinn, 51 111. 269; navigation of the river Thames, was held The Daniel Bell, 10 Wall. (IT. S.) 555 ; entitled to compensation, therefor. So in The Montehello, 11 id. 411. Murray v. Sharp, 1 Bosw. (BT. Y.) the * Rhoades i;. Otis, 33 Ala. 578 ; Weisse owners of a pier who had an exclusive v. Smith, 3 Oregon,. 445 ; Morgan v. right to the wharfage, were held entitled King, 30 Barb. (N. Y.) 9 ; 35 N. Y. 454 ; to damages for an appropriation by the MoManus v. Carmichael^ 3 Iowa, 1 ; Vea- city of a slip adjoining the pier to the piir- zie •». Dwinell, 54 Me. 160; Lorman u poses of a public ferry. So a water-power. Benson, 8 Mich. 18 ; Scott v. "Wilson, 5 has been held to be such property as a N. H. 321 ; Shaw v. Crawford, 10 Johns. railway company is liable to make com- (N. Y.) 236 ; Lincoln v. Chadboume, 56 pensation for if dampged by the construe- Me. 157 ; Varick v. ' Smith, 5 Paige Oh. tion of their road, although the stream. (IT. Y.) 148 ; Polger®. Pearson, 3 Oregon, may have been declared a public highway , 455 ; Wadsworth c. Smith, 11 Me. 278. Barclay R. R. Co. v. Ingham, 36 Penn. See Wood on Nuisances, chap, on " Navi- St. 194. But where the right to build a gable Streajns," where the cases are all dam and maintain it was held under a collected, mere license from the State, the State has 1020 EMINENT DOMAIN. [chap. XIV. although it is covered with beach and sea-weed.^ Eiparian owners upon this class of streams are not only restricted in their title to the high-water mark, which is the outer limit of terra firma npon which the waters ordinarily go, feut they are also precluded from making any use of the land so embraced between high and low water mark, except for the purpose of approaching the stream or the sea ; and it seems that this right is not of such an absolute character that they may not be wholly deprived of it by the State,, or those acting under authority conferred by the State, without compensation for the injuries resulting to them.'' 1 Hale's De Jure Maris, Chapter TV., p. 12 ; Lowe v. Govett, '3 B & Ad. 869. As to land reclaimed from the sea, see Atty.- Gen. V. Rees, 4 De G. & J. 55 ; Pollard v. Hagan, 3 tiovi. (IJ. S.) 212. The right of eminent domain over the shores and the soil under the waters resides in the State for all municipal purposes ; and within the legitimate limitations of this right the power of the State is absolute, and an ap- propriation of the shores and land is law- ful. Ormerod v. New York, &c. R. Co., 13 Fed. Rep. 370. A proprietor of a lake shore who has lawfully intruded into the water for the construction of a break- water cannot thereby acquire title in fee to land occupied by such breakwater be- yond his original boundary ; nor can he in a proceeding for compensation for the alleged taking of such land recover for any injury done to the breakwater. The plaintiflf having shown title to the land to the water's edge, defendant introduced evidence that the land taken was not above the water's edge, but was made beyond it by means of a breakwater and cribs extending into the water. It was held that there was no error in permit- ting plaintiff to show that the breakwater and cribs were not built beyond the water's edge, the evidence being properly in rebuttal. Diedrich v. Northwestern Union E. Co., 42 Wis. 248. 2 Gould V. Hudson River R. Co., 6 N. Y. 522 ; Tomlin v. Dubuque R. Co., 32 Iowa, 106 ; Stevens v. Paterson, &c. R. Co., 34 N. J. L. 532 ; 20 N. J. Eq. 126; Thayer v. New Bedford R. Co., 125 Mass. 253, Harvard College v. Steams, 15 Gray (Mass.), 1 ; Fitchburg R. Co. ». Boston, &c. B. Co., 3 Cush. (Mass.) 58 ; Davidson V. Boston, &c. R. Co., 3 id. 91 ; Boston, &c. R. Co o. Old Colony R. Co., 12 id, 605 ; Pennsylvania R. Co.. v. New York, &c. E. Co., 23 N. J. Eq. 157 ; Atty.-Gen. V. Hudson TunneUCb., 27 N. J. Eq. 176 ; Com. V. Fisher,. 1 P. & W. (Penn.) 462 ; Clarke v. Bridge Co., 41 Penn. St. 147 ; Monongahela Bridge Co. v. Kirk, 46 Penn. St. 112; Philadelphia v. Scott, 81 Penn. St, 80 ; McKeen v. Del. Div. Canal Cot, 49 Penn. St. 424 ; Austin v. Rutland R. Co., 45 Vt. 215 ; Bailey v. Philadelphia, &c. R. Co., 4 Harr. (Del.) 389 ; Rogers »; Kennebec, &c. R. Co., 35 Me. 319. The owner of a tide-mill, who is also the ripa- rian proprietor ol flats, from which the tide wholly ebbs, betweett his mill and navi- gable water, has no right, either as against conterminous proprietors or the public, to have his fla,tskeptopen and unobstructed for the free flow and reflbw of the tide-water for the use of his mill or for navigation purposes. The adjoiiiing' proprietors may build solid structures to a certain extent, and thereby obstruct the ebb and How of the tide, if in so doing they do not whqlly obstruct the access of other proprietors to their houses and lands ; and if the mill- owner and other proprietors sufler damage therefrom, it is cbimnum absque injuria. Therefore, so far as a railroad erected by the legislature affects the right of the claimants to pass and repass to and from their lands and wharves with vessels, it is a mere regulation of a public right and not a taking of private property for a public use, and gives no claim for damages. Davidson v. Boston, &o. R. Co., 3 Cush. (Mass.) 91. The owner of wharves, in front of which a railroad is located accord- ing to law, cannot recover of the railroad SEC. 256.] INJURIES TO EIPAEIAN EIGHTS, ETC. 1021 It has been held that there is no private property in the waters of nav'ig&Ue rivers, or in the strip of sTiore between high and low water mark, vested in the -riparian owners ; that the legislature may author- ize the land below high- water mark to be taken for a public use, without providing for a compensation to the riparian owner, even though the use authorized cuts off all communication between his land and the river.^ But it is not believed that this is the true doctrine. Over the space between high and low water mark the abutting owner has an easement of access* to the water and to construct wharves, etc, ; and if this easement is impaired by the con- struction of a railroad on the strip, he is entitled to compensation as for a taking of property.^ The owner of land bounded by a navigable river has property rights therein, embracing the right of access to the navigable part of the stream, and the right to construct a landing or wharf; and where a railroad company, although acting under legislative authority, has constructed its road across the water-front of such owner and thus has deprived him of access to the navigable part of the stream, unless he has granted the right or it has been obtained by eminent domain, he is entitled to recover damages.** But this rule cannot company, as damages, the antioipatecl E. Co., 51 Ark. 235 ; 39 Am. & Eng. R. ilepreciation of the wharf property because Cas. 75 ; Rippe v. Chicago, &o. R. Co., 23 the access thereto is made dangerous and Minn. 18 (right to construct wharves); inconvenient. Boston, &o. R. Co. ». Old New Jersey, &c. Co. v. Morris, &a. Co., Colony R. Co., 12 Cush. (Ma.ss. ) 605. In 44 N. J. Eq, 398 ; 36 Am. & Eng. R. Cas. the case of compensation claimed for the 515. Thus, a riparian owner upon a navi- huilding of a railroad between a navigahle gable stream, whether he owns to the river and coal mines, whereby the river thread of the stream or not, has a right to transportation was injured or cut oflF,' to construct in shoal water in front of his reduce damages, the railroad company may land'prpper wharves or piers, in aid of nav- show that the river transportation had igation, through the water far enough to lessened in value, by the facilities for reach, actually, navigable water. Dela- ;|;j;ansportation furnished by the railroad, plaine v. Chicago, &c. R. Co., 42 Wis. Cleveland, &c. R. Co. v Ball, 5 Ohio St, 214. 568. 8 Eumsey v. New York, &c. R. Co., i This was the view expressed in the 133 N. Y. 79. See also In re New York, first edition, the author citing Gould v. .&e. R. Co., ]01 N. Y. 685,; Schurmeier Hudson River R. Co., 6 N. Y. 522 ; Lan- v. St. Paul, &e. R. Co., 7 Wall. (IT. S.) sing V. Smith, 4 Wend. (N. Y.) 9 ; 272. In Carli i;. Railroad Co., 28 Minn. Davidson v. Boston, &c. R. Co., 3 Cush. 273, the street occupied by a railroad laid (Mass.) 91 ; Champlain, &c. R. Co. v. by the defendant, and the adjoining lot Valentine, 19 Barb. (N Y.) 484. owned by the plaintiff, were upon made " St. Paul, &c. R. Co, V. Schurmeier, land which had been extended into a lake, 7 Wall. (U. S.) 272, affirming 8 Minn, through which flowed a navigable stream. 113 , 83 Am. Dec. 770 ; 10 Minn. 82 ; It was claimed that the lot^owner's title 88 Am. Dec. 59 : Organ «. Memphis, &o, did not extend to lands covered by the 1022 EMINENT DOMAIN. [chap. XIV. be extended so as to interfere with the right of the State to improve the navigation of the river, or with the power of Congress to regulate commerce. The proper measure of damages in such case is the diminished rental or usable value of the property for the purpose it was used for before the building of defendant's road, not what it would have been if the land had been put to some other use or other structures had been placed upon it.^ Where a ford-way was destroyed by the erection of a dam across a river, in the construction of a canal under legislative grant, the river being a public highway, although not strictly navigable in the common- law sense (which only included such rivers as were affected by waters of the lake, but stopped at the line of low water. It was held that while such is the law, it is well settled that the owner of land bounded by a navigable stream has certain riparian rights which spring from the' owneiship of the bank, and are not dependent upon a strict legal title in him to the soil covered by the water. Said Clark, J.: "These rights were clearly defined in Brisbane v. St. Paul, &c. R. Co., 23 Minn. 114, as follows : ' The right to enjoy free communication between his abutting premises and the navigable chan- nel of the river ; to build and maintain for his own and the public uise suitable land- ing-places,^ wharves, and piers on and in front of his land, and to extend the same therefrom into the river to the point of navigability, even though beyond low- water mark ; and to this extent exclu- sively to occupy for such and like purposes the bed of the stream, subordinate and subject only to the navigable rights of the public, and such needful rules and regula- tions for their protection as may be pre- scribed by competent legislative authority.' In addition to the authorities cited in the opinion in this case, the doctrine has the authority of a recent English case in the House of Lords, and we are satisfied that it rests upon solid grounds of justice and utility. Long v. Fi-shmongers, L. R. 1 App. Cas. 662. It does not appear that the use made of the shore in this case has caused the least impediment to the free and unobstructed navigation of the river, or has been jirejudieial in any way to the public interests. These riparian rights are property, and cannot lawfully be taken for public use without compensation. Yates V. Milwaukee, 10 Wall. (U. ^.) 197. The acts done by the defendant are an invasion of the riparian rights of the plaintiff." 1 Rumsey v. New York, &c. E. Co., 133 N. Y. 79. Thus, in an action by plaintiffs, who w'ere the owners of certain uplands on the Hudson River, to recover damages sustained by the ooristruotiou by the defendant iu 1880 of a railroad across their water-front, which cut off their access to the water, it appeared that the lands under water in front of the plaintiffs' prem- ises were not granted to them until in March, 1885. It was held that the plain- tiffs' right to recover was not confined to the period since such grant, but that they were entitled to damages for interfei'ence with their prior property rights in the stream as riparian owners. The case of Gould V. Hudson River R. Co. (6 N. Y. 522) was held to have been overruled. Lansing v. Smith, 8 Cow. (N. Y.) 146 ; 4 Wend. (N. Y.) 9 ; Stevens v. P. & N. R. Co., 34 N. J. L. 532 ; Buccleuch v. Met. Bd. of Works, L.. R. 5 Exch. 221, were distinguished. The jilaintiffs' premises had formerly been used as a brick -yard, and the river-front for shipping brick and other purposes connected with brick-mak- ing. Some years before the construction of the defendant's road and the embank- ment along the plaintiff's front, such use of their premises had been abandoned, and it was held that plaintiffs' damages could not properly be based upon the rental or usable value of their property as a biiek- yard. Rumsey v. New York, &c. R. Co., 133 N. Y. 79. SEC. 256.] INJURIES TO BIPARIAN BIGHTS, ETC. 1023 tide-water), it was held that the owner of the ford-way could recover no compensation from the State or its grantees, the act being but a reasonable exercise of the right to improve the navigation of the stream as a public highway.^ So the owner of a da,m erected by legislative gra,nt upon a navigable river, with a proviso that the navigsitiou of tlie same should not be thereby obstructed, and which is afterwards cut off by a canal, granted by the same authority, is not entitled to recover damages. The State is never deemed to have parted with one of its franchises, in the absence of conclusive proof of such intention.2 In reference to streams not navigable in law, — that is, streams which whether large or small are nevertheless floatable and come within the third class named, — it may be said that the riparian owne^' is usually held to own the alveus in the stream, and therefore has a property interest therein of which he cannot be' deprived with- out compensation ; and such also is the case in reference to other navigable streams, where, under the law of the State, he is treated as the owner of the bed of the stream.* ' ' Zimmerman v. Union Canal Co., 1 W. &S. (Penn.) 346. ^ Susquehanna Canal Co. v. Wright, 9 W. & S. ( Penn. ) 9. In Abraham v. Great Northern Ry. Co., 16 Q. B. 586, it is held the owner of land adjoining a navi- gable stream has no property in the bed of the stream, and the legislature may give permission to a railway company to so construct their road as to interfere with and' alter the bed of the stream, to the damage of any owner of adjoining land, in regard to flowage or otherwise, evenrlo the hindrance of accustomed navigation, with- out compensation ; and the railway com- pany, in constructing their road within the provisions of the act of incorporation, do not become liable to an action for damages to any such proprietor of adjoin- ing land. 8 Lehigh Valley R. Co. v. Trowe, 28 Penn. St. 206. A riparian owner may by grant from the State be clothed with a special interest or property in the sea or stream, which endows him with rights such as are not possessed by the public generally, and which estop the State from a special or any use of the stream or the ulceus thereof to his injury or prejudice without proper compensation therefor. If a special right exists in the shore owner by virtue of a grant from the State, and which is made appendant to liis land, this spe- cial right cannot be destroyed without proper recompense, for its destruction or injury is the taking of private property within the meaning of the Constitution. Thus, the State may by patent convey the land on the shore of the stream to low- water mark. Del. & Hud. Canal Co. B. Lawrence, 2 Hun (N. Y.), 60 , Attor- ney-General V. Boston Wharf Co., 12 Gray (Mas^.), 653 ; Winnisimmet Co. v. Wyman, 11' Allen/ (Mass.), 432; Jifichols i". Boston, 98 Mass 39 ; Morgan v. King, 35 K. Y. 454. Or it may authorize the' construction of wharves, piers, quays, or docks. Hale's De .Jure Maris, Chapter VI., p. 73. Or it may grant the right of fer- riage between opposite shores, or the right of fishing opposite the banks, and other uses which it is not necessary to enumerate; and when such rights have been legally conferred upon the riparian owner, he is en- titled to compensation if they are taken. The right to set up a ferry is a franchise which can be exercised only under a license from the State, — Blissett v. Hart, Willes, 1.024 EMINENT DOMAIN. [chap. XIV. Upon streams whicll are only navigable in fact, the riparian owner may apply the water to use for the propulsion of machinery, and for that purpose may erect a dam across the stream where the stream is simply floatable, leaving suitable ways for the passage of logs and other products.* The jight of the public for passage with logs, etc., is superior to the right of the riparian owner ; and if he erects obstructions in the stream which prevent, endanger, or materially hinder the passage of rafts or logs, whether such obstruction is in the form of a dam or otherwise, such obstruction is a nuisance and subjects the person making it, not only to an action for the damages sustained by the owners of rafts or logs obstructed by it, but also to indictment as for a public nuisance ; ^ and the person so injured by the obstruction may abate so much of the same as is necessary to secure the proper exercise of his right.^ But while the right of 51 2, «., — or by prescription. 2 Rolle's Abr. 140 ; Lansing ii. Smith, 4 Wend. (N. Y.) 21 ; Benson v. Mayor, 10 Barb. (N. Y.) 223 ; Young u. Harrison, 6 Ga. 139 ; Dyer V. Bridge Co., 2 Port. (Ala.) 303; Stark .■. McGowen, 1 N. & McC. (S. C.) 387 ; Nashville B. Co. v. Shelby, 10 Yerg. (Tenn. ) 280 ; Somerville v. Winibish, 7 Gratt. (Va.) 205. A riparian owner may set up a ferry for his own use, but not for the use of othera. Young v. Harrison, 6 Ga. 139 ; People v. Mayor, etc., 32 Barb. (N. Y.) 102; Norris «. Fanners' Co., 6 Cal. 590 ; Johnson v. Erskine, 9 Tex. 1 ; Sparks v. White, 7 Humph. (Tenn.) 86 ; De Jure Maris, 7? i Milton v. Haden, 32 Ala. 30 ; Taylor v. Railroad Co., 4 Jones (N. C.) 277 ; Mills o. St. Clair Co., 7 111. 197; Cooper u. Smith, 9 S. & B. (Penn.) 26 ; Trustees v. Talman, 13 111. 27 ; Mur- ray V. Menefee, 20 Ark. 561. A ferry franchise is not an incident of riparian ownership. Patrick c, Ruffners, 2 Rob. (Va. ) 209; Young v. Harrison, 6 Ga. 130 ; Stanford v. Mangin, 30 Ga. 355. All unlicensed fenies are nuisances. 3 Kent's Com. 458, 459 ; 3 Blackstone's Com. 219. But the State may license as many I'prries to and from the same point as it chooses, and may license a railway com- pany to maintain a ferry, either expressly or by inference. State v. Wilmington, &c. R. Co., Busbee (N. C.i 234; Fisher V. New Haven, &c. R. Co., 30 Conn. 38 ; Aiken «. Western R. Co., 20 N. Y. 370 ; Dyer v. Tuscaloosa Bridge Co., 2 Port. (Ala.) 303 ; Railroad Co. v. Douglass, 9 N. Y. 444 ; Charles River Bridge v. War- ren Bridge, 11 Pet. (U. S.) 420 ; Bridge Co. V. Railroad Co., 17 Conn. 454 ; Thomp- son V. Railroad Co., 2 Sandf. Ch. (N. Y.) 625; Bridge Co. v. Fish, 1 Barb. Ch. (N. Y.) 547 ; Toledo Bank v. Bond, 1 Ohio St. 622 ; Canal Co. v. Railroad Co., 11 Leigh (Va.), 42 ; Benson v. Mayor, &c., 10 Barb. (N. Y.) 223; East Hartford v. Bridge Co., 13 How. (U. S.) 71; Shorter V. Smith, 9 Ga. 517. 1 Lorman ». Benson, 8 Mich. 18 ; Lan- cey V. Clifford, 54 Me. 491 ; Morgan v. King, 18 Barb. (N. Y.) 277 ; Scofield v. Lansing, 17 ' Mich. 437. See note in Washington on Easements, p. 507 ; Avery 1). Fox, 1 Abb. (U. S.) 246; Yates v. Milwaukee, 10 Wall. (U. S.) 497. ■■' Scofield »•. Lansing, 17 Mich. 437 ; Thurman v. Morrison, 14 B. Mon. (Ky.) 397 ; Douglass v. State, 4 Wis. 387. 2 Renwick v. Morris, 7 Hill (N. Y. ), 575 ; Memphis R. Co. v. Hicks, 5 Sneed (Tenn. J, 427 ; Barnes v. Racine, 4 Wis. 454 ; Burrows v. Pixley, 1 Root (Conn.), 363 ; Brown v. Watson, 47 Me. 161 ; Gerrish v. Brown, 51 Me. 256 ; Yeazie v. Dwinel, 50 Me. 479 ; Knox v. Chaloner, 42 Me. 156 ; State ». Freeport, 43 Me. 198; Powers i-. Irish, 23 Mich. 429; Rippe V. Chicago, &c. R. Co., 22 Minni 18 : Steamboat Magnolia v. Marshall, 39 Miss. 109, Brisbane ». St. Paul, &c, R SEC. 257.] WHAT CONSTITUTES DAMAGE. 1025 passage for the , public must on the one hand be respected by the riparian owner, so on the other hand must the rights of the riparian owner be respected by the public ; and where a river is merely /oa^ cAU the public have no right to so use it as to destroy its beneficial use for manufacturing purposes.^ Thus it has been held that persons using a fioataUe stream have no right to erect dams thereon, and thereby detain 'and hold the water to be let off in such a manner as to aid in the floating of logs, when, by s.uch dam, the water is with- held from mill-owners below to their injury, — even though except for such dams the stream could not be used for floatage at certain seasons of the year.^ In a New York case,^ a railroad company, which was a riparian owner, diverted the water of a creek for its use in furnishing water to its locomotives, so as perceptibly to reduce the volunje of water flowing therein, and materially to reduce the grinding power of the mill of plaintiff, a riparian owner below the railroad company, and in consequence thereof he sustained damage to a substantial amount. It was held that the petitioner was entitled to an injunction restraining the railroad company from diverting the water to his injury.* Sec. 257, what constitutes Damage. — Under a statutory pro- vision that railroad corporations shall be liable to pay all damages pccasioned by laying out and making' and maintaining their roads, Co., 23 Minn. 114 ; Chicago, &o. R. Co. P. C. 156 ; Tyler v. Wilkinson, i Mason, ». Stein, 75 111. 41. 397. The railroad company did not merely 1 Scofield w. Lansing, 17 Mich. 437- use the water, returning it to the stream, '■' Sliddleton v. Flat River Booming Co., but diverted it from the land. The fact 27 Mich. 533. that plaintiff, as well as the railroad com- ' Garwood ». NewYork Central R. Co., pany, used -the water for artificial pur- 88 N. Y. 400 ; 38 Am. Rep. ,452. posea, would not affect plaintiff's rights. * Thecourtspeakingby Danforth, J., The case presents no exception to the after distingiiishjng the cases of Elliott rule, that a riparian , proprietor has no V. Fitchburg R. Co., 10 Cush. (Mass.) right to divert any part of the water of 191 ; Earl of Sandwich v. Great Northeijn the stream into a course different from Ey. Co., L. R. 10 Ch. Div. 707, went on that in which it has been accustomed to to say : ' ' Each riparian owner has the use iJo,w, for any purpose to the prejudice of of the water ad lavandum et portcmimn. any other riparian proprietor. . This is the for doiuestic purposes ali,d his cattle, doptrine of the civil and the common law, though some portion be exhausted, ' and and it stands upon the familiar ma^m, this without regard to the effect upon the sin utere tUQ ut alienum non Icedas." lowqr owner. He may use for irrigation ' The authorities all sustain the propriety or manufacturing; bnt his 'privilege is of preventive relief in suoli a case. See 2 connected with the land through which Story's llq. Juris, § 927 ; Gardner v New- the stream runs, ancl qanpot be exercised burgh, 2 Johns. Ch. (N. Y.) 162 ; Swinton if thereby the lawful use of the water by a Water Works Co. v. W. & B. Canal Co., lower proprietor i.s interfered with to bis L. R. 7 Eng. & Ir. Ap. Cas. 697 ; Campbell iiyury. Miner v. Gilmour, 12 Moofe's v. Seaman, 63 N. Y. 668. 1026 EMINENT DOMAIN. [CHAP. XIV. or by taking any land or materials, a party who sustains an actual and real damage, capable of being pointed out, described, and appre- ciated, may recover compensation therefor. Thus, where the water of a well on an estate adjoining, but not crossed by, a railroad was drawn off in consequence of the excavation made for the road, and the well thereby rendered dry and useless, it was held that the owner of the estate could recover damages therefor in the same man- ner as for land, etc., taken for the purposes of the road.^ The rule in regard to what damage is to be included under the terms " lands injuriously affected," or equivalent terms, includes all direct damage to real estate by passing over it or part of it, or which affects the estate directly, although it does not paiss over it, as by a deep cut or high embankment so near lands or buildings as to prevent or diminish the use of them, by endangering the fall of buildings, the caving of earth, the draining of wells, the diversion of water-courses by the proper erection and maintenance of the company's works, the blasting of a ledge of rocks so near houses or buildings as to cause damage, running a track so near as to cause imminent and appre- ciable danger'by fire, obliterating or obstructing private ways lead- ing to houses or buildings, — all these and some others, doubtless, are included. But damage cannot be assessed for losses arising directly or indirectly from the diversion of travel, the loss of custom to turnpikes, canals, bridges, taverns, coach companies, stores, and the like ; nor for the inconveniences which the community may suffer in common from a somewhat less convenient and beneficial use of public and private ways, from the rapid and dangerous cross- ings of the public highways arising from the usual and ordinary action of railroads and railroad trains, and their natural incidents,^ 1 Parker V. Boston, &c. B. Co., 3 Cush. & £iig. B. Caa. 162. So also as to a (Mass.) 107. similar provision in Nebraska for injury 2 Proprietors of Locks v. Nashua, &o. to land not taken. Republican Valley R. R. Co., 10 Cush. (Mass.) 285 ; Uline v. Co. v. Fellprs, 16 Neb. 169 ; 20 Am. & New York; &c. R. Co., 101 N. Y. 98 ; 23 Eng. R. Cas. 256 ; Omaha, &c. R Co. v. Am. & Eng. R. Cas. 3; Dimmick v. Coun- Standen, 22 Neb. 343 ; 34 Am. & Kng. R. cil Bluffs R. Co., 68 Iowa, 637 ; 10 Am. & Cas. 17». See also Ford v. Metropolitan Eng. R. Cas. 105 ; Pennsylvania R. Co. v. Dist. Ry. Co., 17 Q, B. Div. 12 j 26 Am. Angel, 41 N. J. Eq. 316 : 26 Am. & Eng. & Eng. R. Cas. 182 ; Gilbert v. Greely, R. Caa. 559. In some jurisdictions pro- &c. R-. Co., 13 Col. 501 ; 40 Am., & Eng. vision is expressly made for compensation R. Cas. 300. In the case' of Proprietors, for consequential injuries. Thus, the con- &c. v. Nashua, &c. R. ,Co., 10 Cush. stitution of Illinois provides that compen- (Mass.) 285, it is also held that no dam- sation shall be made for property "taken ages can be assessed under the statute for or damaged" for public use. Chicago, cutting through a water-coiirse in making &c. R. Co, V. Ayers, 106 111. 511 ; 14 Am. an embankment, without making a cul- SEC. 257.] WHAT CONSTITUTES DAMAGE. 1027 A constitutional provision requiring just compensation to be made, or adequate security to be given therefor, before private property can be taken for public use, contemplates only an actual appropriation. Matters of annoyance, indirect and consequential injuries to prop- erty, and acts tending to depreciate the value but which do not amount to a real appropriation, are outside of this provision. There- fore a railroad company, when empowered to take land for its use, is not responsible for indirect or consequential injuries, unless such liability is imposed by charter.^ In England, and in some of the vert, whereby, the water is made to flow back and injure the plaintiff's land at a distance from the railway, no part of which is taken, — the remedy being by action at common law. See Parker v, Boston, &c. R. Co., 3 Cush. (Mass.) 107. And where the company, by consent of the land-owner, enters upon the land and makes the requisite erections, which are subsequently conveyed to it with the land by, the land-owners, it was held such grantor is riot estopped from claiming damages resulting from want of proper care and skill in constructing the works, or from neglect to keep them in repair. Morris Canal & Banking Co. ». Ryerson, 27 N. J. L. 457 ; Waterman v. Connecti- cut, &c. R. Co., 30 Vt. 610 ; Lafayette. Plank-Road Co. «. New Albany, &c. E. Co., 13 Ind. 90. In England the rule that damages can only be recov- ered for injuriously affecting land, where but for the statute the act complained of would be just ground of action at common law, does not apply where part of the land is taken and damages are sought, not only for the part taken, but for the rest of the land being injuriously affected, either by severance or otherwise. And it was here held that the owner of a mill was entitled to have damages assessed to him for the increased exposure of the same to fire by the passage of the company's trains. But loss of trade caused by the operations of the company during the construction of their works is not damages for which the party is entitled to compensation. Senior V. Met. Ey. Co., 2 H. & C. 258 ; Eicket v. Metropolitan Ry. Co., 5 B. & S. 149. But a person may claim damages on the ground of being injuriously affected on account of the obstruction or diversion of a public way by the construction of the works of a railway. Wood v. Stourbridge Ky. Co., 16 C. B. n. s. 222 ; Boothbay v. Androscoggin, &c. It. Co., 51 Me. 318. 1 Watson V. Pittsburgh, &c. E. Co., 37 Penn. St. 469 ; Pennsylvania R. Co. v. Marchant, 119 Penn. St. 541 ; 33 Am. & Eng. R. Cas. 116 ; Beseman c/. Pennsyl- vania R. Co., 50 N. J. L. 235 ; 33 Am. & Eng. R. Cas. 107. In the New York, &c. K. Co. w. Young, 33 Penn. St. 180, the court say ; "It has been held by this court, in the Monongahela Navigation Co. v. Coons, 6 W. & S. (Penn.) 101 ; Susquehanna Canal Co. v. Wright, 9 W. & S. (Penn.) 9 ; McKinney D. Monongahela Navigation Co., 18 Penn. St. 65; Shrunk v. Schuylkill Navigation Co., 14 S. & R. (Penn.) 71 ; The Philadelphia, &c. R. Co., 6 Whart, (Penn.) 45 ; and Eundle v. Del. & Ear. Canal Co., 14 How. (U. S.) 80,' that the grantees of such a franchise have the same power that existed in the State, and may exercise it, subject only to such restrictions as are imposed in the grant, and that they are subject only to the same liability, unless otherwise declared. Such grants are always supposed to be for the public benefit, and to be exercised with that view by the corporation rather than by the State itself. In the cases cited, the doc- trine has been distinctly held, and is the settled law of the laud, if anything can be settled, that, unless the act of incorpora- tion provides for it, consequential damages are not recoverable from a railway, or other improvement company, in constract- ing or maintaining their works, — thus applying the same ta\e to them as was held applicable to the Commonwealth itself. Com. v, Fisher, 1 Penn. 467. That the legislature may direct otherwise, no- 1028 EMINENT DOMAIN. [chap. XIV. States of this country, railway companies are by statute made liable to the owners of all lands " injuriously affected " "or damaged " by their railways ; and under such statutes it is held that if the com- pany does any act which would be an actionable injury, without the protection of the special act of the legislature, they are liable under the statute.^ So that there any act of a railway company amounting to a nuisance in a private person, and causing special damage to any particular land-owner, is a- good ground for claim- ing damages under the statute.^ These statutes indicate the policy of the State in regard to compensation for the apprppriation of land, and serve to command a liberal interpretation of the constitutional right in favor of the land-owner.* It has never been the doctrine that the State or its representative might injuriously affect privq,te property to any extent short of an actual conversion, and escape liability for compensation to the owner of such property. Such a body doubts ;'but the liability does not exist unless it is expressed." See also Hortsman v. Lexington, &c. K. Co., 18 B. Mon. (Ky.) 21S; post, chapter on "Lo- cation AND CONSTKUCTION." In the case of Governor of Plate Manufacturers V. Meredith, i T. K. 794, Lord Kenyon says : " If the legislature think it neces- sary, as they do in many cases, they enable the commissioners to award satis- faction to the individuals who happen to suffer, But if there be no such power given the commissioners, the parties are without remedy, provided the commis- sioners do not exceed their jurisdiction." This was a case where the plaintiffs had been hindered in the free access to their business premises by the raising of the street opposite them by the defendants, who were commissioners for paving the street. And see Sutton v. Clarke, 1 E. C. L. 298 ; Boulton v. Crowther, 9 E. C. L. 227 ; King v. Pagham, 15 E. C. L. 237. 1 Denver v. Bayer, 7 Col. 113 ; 2 Am. & Eng. Corp. Cas. 465 ; Indianapolis, &c. E. Co. V. Hartley, 67 111. 439 ; Glover v. North Staffordshire Ry. Co., 16 Q. B. 912. " Glover v. North. Staffordshire Ry. Co., 16 Q. B. 912; Hatch v. Vermont Cent, R. Co., 25 Vt. 49. ' See also City Council v. Townsend, 80 Ala. 489 ; Transportation Co. v. Chicago, 99 U. S. 642; Gottschalk v. Burlington, &c. E. Co., 14 Neb. 550, The Texas court, referring to a similar provision in the constitution of that State, observes : " This language is broader than that used in the former constitutions of this State, and was doubtless intended to meet all cases in which, even in the proper prose- cution of a public work or purpose, the right or property in a pecuniary way may be injuriously affected by reason of its being thereby made less valuable, or its use by the owner restricted by the public use to which it is wholly or, partially applied without compensation having been first made to the owner. It is also not improbable that it was intended by the language found in the present constitution, to meet and cowect evils which had some- times been thought to result to the prop- erty-owner from a narrow and technical meaning sometimes put by the courts upon the word ' taken ' as used in former constitutions. . , . If by the constmction of a railway or other public work an Injury peculiar to a given property be inflicted upon it; or its owner be deprived of its legal and proper use, or of any right therein or thereto, — that is, if an injury, not suffered by that particular property or right only in common with other property or rights in the same community or section, by reason of the general fact that the pub- ■lio work exists, be inflicted, then such property may be said to be 'damaged.' " Galveston, &c, R. Co, v. Fuller, 63 Tex. 467. SEC. 257.] WHAT CONSTITUTES DAMAGE. 1029 contention is repudiated: by Mr. Justice Miller ^ in language which has been often- quoted : — "It would be a very curious and unsatis- factory result, if, in construing a provision of constitutional law always understood to have been adopted for the protection and security of the rights of the individual as against the government, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparablei and permanent injury to any extent ; can, in effect,, subject it to total destruction without making any compensation, because in the narrowest sense of that word, it is not taken for a public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at common law, instead of upon the government, and make it an authority for the invasion of private right under the pretext of the public good which had no warrant in the laws or practices of our ancestors." But in the absence Of special statutory provision for compensation to the land-owner in such cases, railway companies are not liable for necessary consequential damages to land-owners, no , portion of whose- land is taken,, where they construct and operate their roads in a skilful and prudent manner? Thus, one whose lands, fronting on 1 PumpeHy,u. Green Bay Co.,, 13 Wall. 85 ; Canandaigim, &c. R. Co. v. Payne, 16 (IT. S.) 177-178. See also Sinnickson v. Barb. (N. Y.) 273, where it is held that Johnson, 17 N,. J. L (2 Harr.) 129 ; Gard- injury to a mill upon another lot of the neri;. Newburg, 2 Johns. Ch. (N. Y. ) 162. same land-owner, in consequence of the '^ MonoDgahela Nav. Co. ». Coons, 6 construction and operation of the railway, W. & S. (Penn.) 101 ; Radoliff «. Brook- is a matter with whibh the commissioners lyn,, 4 N. Y. 195 ; In re Phila. & Trenton have nothing to do in estimating damages R. Co., 6 Whart. (Penn.) 25; Seneca for land. See also Troy, &c. R. Co. v. Road Co. V. Auburn, &c. R. Co., 5 Hill Northern T. Co., 16 Barb. 100. Nor is' a (N. Y.), 170 ; Hatch v. Vt. Central R. person entitled to damage in consequence Co., 25 Vt. 49; Richardson v. Vt- Central of a highway being laid upon his line, R. Co., 25* Vt. 465 ; Sunbury, &c. R. Co; thus compelling him to maintain the whole V. Hummell, 27 Penn. St. 99 ; Clarke ». fence. Kennett's Petition, 24 N. H. 139. Birmingham, &c. R. Co., 41 Penn. St. In Albany Northern R. Co. v. Lansing, 147; Struthers v. Dunkirk, &c. R, R. Co., 16 Barb. (N. Y.) 68, it is said :' "The 87 Penn. St. 282 ; Thompson v. Andros- commissioners in estimating the damages odggin R. Co., 58 N. H. 108 ; Stetson r. should not allow consequential and pro- Chicago, &o. R. Co. , 75 111. 74 ; Freeland speetive damages." In Plant v. Long u. Penn. E. Co., 66 Penn. St. 91; Bellinger Isltod R. Co., 10 'Barb. (N. Y.) 26, it V. N. Y, Central R, Co., 23 N. Y. 42 ; is held not to be an illegal use of a street Corey v. Buffalo, &e. R. Co., 23 Barb, to allow a railway track to be laid upon it, (N. Y.) 482 ; Spanger's App. 94 Penn. St. and that the temporaiy inconvenience to 387. There are many eases confirming which the adjoining proprietors are subject the same general view. Heniy v. Pitts- while the work of excavation and tun- burgh, &c. Bridgp Co., 8 W. & S. (Penn.) nelling is going on is damnum absque in- 1030 EMINENT DOMAIN. [chap. XIV. a public navigable river, are taken for the construction of an aque- duct, cannot claim damages beyond the value of the land taken, on juria. So also in regard to the grade of a street having been altered by a railway by consent of the common council of the city of Albany, who by statute were required to assess damages to any freeholder in- jured thereby, and who had done so in this case, it was held that no action could be maintained against the railway company. Chapman v. Albany, &c. R. R. Co., 10 Barb. (N. Y.)' 360 ; Adams" if. Saratoga, &c. E. R. Co.,llBarb. (N.Y.) 414. In Ken- tucky, — Wolfe V. Covington, &o. E. R. Co., 15 B. Mon. (Ky.) 404, -^it was held that the municipal authority of a city might lawfully alter the grade of a street for any public purpose without incurring any responsibility to the adjacent land- holders, and might authorize the passage of a railway through the city along the streets, and give them the power to so alter the grade of the streets as should l)e requisite for that purpose, this being done at the expense of the company, ' and by paying damages to such adjacent proprie- tors as should be entitled to them. But ope who urged the laying of the road in that place on the ground that it would benefit him, and who was thereby bene- fited, cannot recover damages of the com- pany, — upon the maxim volenti non fit injuria. A railway when so authorized " is not apurpresture or encroachment upon the public property or rights." So where a railway company erect a fence upon land which they own in fee for the purpose of keeping the snow off their road, they are not liable for damages sustained by the owner of land upon the opposite side of the fence by the accumulation of snow oc- casioned by the fence. Carson v. West- ern R. R. Co.,. 8 Gray (Mass.), 423. See also Morris & Essex R. R. Co. v. Newark, 2 Stock. Oh. 352. Where the act com- plained of was the construction of an em- bankment by a railway company at the mouth of a navigable creek, in which the plaintiff had a prescriptive right of stor- ing, landing, and rafting lumber for the use of his saw-mill, whereby the free flow of the water was obstructed, and the plaintiff thereby deprived of the full enjoyment of his privilege, the injury was regarded as the direct and immediate consequence of the act of the company, and the company was held liable for the damages thereby sustained. Tinsman v. the Belvidere Delaware R. R. Co., 26 N. J. L. 148. Rogers v. Kennebec, &c. R. R. Co., 35 Me. 319 ; Burton *. Philadelphia, W. & ' B. R. R. Co., 4 Harr. (Del.) 252 ; Hollis- ter V. Union Co., 9 Conn. 436 ; Whittier V. Portland, &c. R. R. Co., 38 Me. 26. But for a want of skill or prudence in the construction or operation of its road, it is liable to any one suffering special damage thereby, as in needlessly diverting water-courses and streams, and not prop- erly restoring them, whereby lands are overflowed or injured. Whitcomb o, Vt. Central R. R. Co., 25 Vt. 69 ; Hooker V. N. H. & N. Y. R. R. Co., 14 Conn. 146. And there is the same liability al- though the lands are not situate upon the stream. Brown v. Cayuga, &c. R. R. Co., 12 N. Y. 486. A party is liable to an ac- tion for diverting the water from a spring, which ran in a well-defined channel into a stream supplying a mill, at the suit of the mill-owner, notwithstanding he had per- mission from the owner of the land where the spring arose. But not if the spring spreads out upon the land, having no chan- nel. As the land-owner might drain his laud, so he may give permission to others to do so. Duddon v. Guardians of Hern- don Union, 1 H. & N. 627 ; Brown v. Illius, 27 Conn. 84 ; Robinson v. New York & Erie R. R. Co., 27 Barb. (N. Y.) 512 ; Waterman v. Conn. & Pass. Eiv. R. R. Co., 30 Vt. 610 ; Henry v. Vt. Central R. R. Co., 30 id.- 638. But in the last case it was decided' that the effect of erecting a bridge in a stream upon the course of the ciu-rent below was so far incapable of being known or guarded against that there was no duty imposed upon railway companies to guard against an injury to land-owners below by a change of the current. New Albany & C. R. R. Co. V. Higman, 18 Ind. 77; New Albany, &c. ,R. B. Co. v. Huff, 19 id. 815 ; Colcough „. Nashville & N. W. R. R. Co., 2 Head (Tenu.), 171 ; Re- gina V. Eastern Counties By. Co., 2 SEC. 257.] WHAT CONSTITUTES DAMAGE. 1031 the ground that the contemplated aqueduct will obstruct the naviga- tion of the river,^ because his right of access thereto is a natural and not a legal right. The verdict of a jury appointed to estimate damages for land taken by a company can only embrace injuries caused by acts of the company which are authorized by their charter, and cannot include wrongful acts done by the company. For this class of injuries he has his remedy at the common law.^ Under a statute directing the appointment of commissioners " to ascertain and appraise the compensation to be made to the owners or persons in- Q. B. 347. But in this case the act ex- pressly provided that the verdict and judg- ment should he conclusive and binding, which most railway acts do riot ; but it seems questionable if this will make any difference. E. & W. I. Docks, &c. v. Gattke, 3 M. & G. 155. In Bradley v. New York & New H. R. E. Co., 21 Conn. 294, where the defendants' charter gave them power to take land, and made them liable for all damages to any person or persons, and they excavated an adjoining lot to plaintiff's, so as to weaken the foundations of his house, and erected an embankment in the high- way opposite his house, so as to obscure the light and render it otherwise unfit for use, it was held that this did not constitute a taking of plaintiff's land, but that de- fendants were liable to consequential dam- age under their charter. But in the early case of the Wyrley Nav. v. Bradley, 7 East, 368, it is considered that where the act bf Parliament reserved the right to dig coal to the proprietor of mines, unless the company on notice elected to purchase and make compensation where the canal was damaged by the near approach of the mine after such notice, and no compensa- tion made, the coal-owner was not liable, although it is there said to be otherwise in case of a house, undermined by digging on the soil of the grantor. But this case seems to turn upon the reservation in t\e grant. The reservation in a deed of land to a railway company of the right to make a crossing over the land, creates an ease- ment in the land, but does not extend such easement across the other lands of the company. Boston & Maine R. R. Co. V. Middlesex, 1 Allen (Mass.), 324. Where the company take land but decline to purchase the minerals, after notice from the owner of his intention to work them pursuant to' the English statute, the com- pany is not entitled to the subjacent or adjacent support of the minerals. And where the company gave notice under the statute that the working of the mines was likely to injure the railway, the owner was held entitled to recover compensation which had been assessed under the statute. Fletcher v. Great- Western Ry. Co., 4 H. & N. 242. And iu North-Eastem Ry. Co. V. Elliott, J. & H. 145, it was held that the general principle that a vendor of land sold for a particular use cannot dero- gate from his own grant by doing any- thing to prevent the laud sold from being put to that use, applies to sales to rail- ways under compulsory powers. Bxit it was here said that this principle will not compel the vendor of land to perpetuate anything upon the portion of the land retained by him which is merely acciden- tal, though existing and of long standing at the date of the sale. TJierefore, where a railway company took land for a bridge in a mining district, where a shaft had been sunk many years before, but the working of the mines abandoned and the shaft filled with water for a ^ong time be- fore the taking of the land, it was held that the land-owner was not precluded from draining the water and working the mine, although the effect must be to lessen the support of the bridge to some extent, by withdrawing the hydrostatic pressure upon the roof of the mine, and the conse- quent support of the superincumbent ati-ata of earth. 1 Matter of the Water Commissioners, 3 Edw. Ch. (N. Y.) 290. 2 Whitehouse v. Androscoggin E. R. Co., 52 Me. 208. 1032 EMINENT DOMAIN. [CHAP. XIV. terested in the real estate proposed to be taken for the purposes of the company," and "to ascertain and determine the compensation which ought, justly to be made by the company to the party or par- ties owning or interested in the real estate appraised by them," it was held in some early cases in New York that tlie oflice of the com- missioners is to determine the compensation to be made to the owner for the land " proposed to be taken," and to be " appraised by them," and not the damages that will he occasioned by the construction ' of the proposed works upon his premises; that it is error to con- sider in such a case the damage which would result to a mill on other land of the owner ; ^ and that under such a statute, the com- missioners should award damages for th^ vialue of land taken, and the damages to the owner's adjoining land produced hy the taldng. They are to consider how the taking of the land, but not the use of it in any particular mode, will affect the valne.^ But this is an ex- ceedingly narrow and unwarranted construction to place upon the statute, and is not the rule generally adopted ; and the use for which the land is taken is of the greatest importance in determining the amount of compensation which should be awarded the land-owner.^ Irl no other way could the "just compensation" to which the owner is entitled be ascertained ; and it is hardly to be presumed that the framers of the Constitution, or of these statutes, intended that any such narrow and unreasonable construction would be placed thereon. A company which, being engaged in the construction of a public work, is authorized by charter to enter upon the lands adjoining the work, and take materials therefrom, is liable to land-owners for materials taken by contractors in the employ of the company, under the provisions of the charter, and applied to the works to be constructed.* Sec. 258. Presumption that Commissioners Estimated all Injuries. — Any contingent and consequential depreciation of the value of the portion of the land not takeUj in consequence of the construc- tion of a railroad in a proper manner and according to its charter, whether reference be had to its market value or its desirableness as a residence, or for general or any particular use, cannot be made the basis of an action to recover damages beyond, or in addition to, the ' Canandaigiia & N. F. K. Co. v. Payne, ' Bangor, &o. R. E. Co. v. McComb, 16 Barb. (N. Y.) 278 | Matter of Hamil- 60 Me. 290 j Pacific E. R. Co. v. Chrystal, ton Avenue, 14 Barb. (N. Y.) 405. 26 Mo. hii. s Albany Northern R.- R. Co. v. Lan- « Hinde v. Wabash Navigation Co., sing, 16 Barb. (N. Y.) 68. 16 111. 1% SEC. 258.] PRESUMPTION AS TO COMMISSIONEES' ESTIMATE. 1033 compensation awarded for taking so much of the land as was prop- erly taken. The presumption is that every injury which, in judg- ment of law, would result to the other adjacent property of the owner from taking a part of his land for the construction of the road, and from the use of it in a proper manner when constructed, was foreseen by the appraisers, and included in their first estimate.^ 1 FumissD. Hudson Eiver E. R. Co., 5 Sandf. (N. Y.) 551. In ascertaining what compensation ought to be made to a turn- pike company for granting to a railroad company an easement or right of way across their road, it should be assumed that the railroad company would, as re- quired hy law, restore the turnpike to such state as not unnecessarily to impair its usefulness. The- consideration that tl\e iDusiness of the turnpike would be dimin- ished by the construction of a railroad along the same .general line of travel, should be disregarded. Every public im- provement, from the necessity of the case, must affect some property favorably and some unfavorably. When this effect is merely ■ consequential, the injury is da/m- num absqiie injuria. If no vested rights have been violated, and the turnpike com- pany still enjoy all the rights and privi- leges secured to them hy their charter, the depreciation of their property does not furnish a legal ground of remuneration. Troy & Boston E. E. Co. v. Northern Turn- pike Co., 16 Barh. (N. Y.) 100 ; Matter of Hamilton Avenue, 14 id. 405 ; Matter of Flatbush Avenue, 1 Barh. (N. Y.) 286. An inquest of damages prdcludes the owner of the land from claiming addi- tional damages for the same original loca- tion, upon the occasion of a change in the location. £%U he can recover damages for the alteration, notviithstanding the legisla- ture authorized the alteration, if any actual damage or injwry has been sustained there- by, to the extent of such additional injury and no more. Baltimore & Susquehanna R. R. Co. V. Compton, 2 Gill (Md.), 20. Where a railroad company, upon an award of commissioners, have recorded the order and deposited the money as required by statute, the title becomes wholly vested in the company, and no longer remains in the former owner. Hence the company cannot, hy changing the route of their VOL. II. — 15 road, avoid paying such compensation, on the ground that the premises are not neces- sary for them. Crowner v. Watertown & Rome E. E. Co., 9 How. Pr. (N. Y.) 457. The right of passage which a railroad cor- poration acquires across the land of private individuals is an interest in the land, and must be derived either by a private pur- chase or by the exercise of the power of eminent domain vested in them by the State. In the former mode of acquisition, the price agreed upon must be paid ; in the latter, the damages must be assessed according to the provisions of law. But if the company allege that the damages have been released, and the right of way surrendered as a gratuity, the evidence relied on to such end should be clear, definite, and uncontradicted. East Penn- sylvania R. R. Co. -w. Schollenberger, 54 Penn. St. 144. After a railroad has law- fully taken lands under their charter, and the damages have heen duly assessed hy the commissioners, and, upon appeal the assessment has been confirmed, and the amount received by the owner, he is es- topped froin setting up any claim against the compian/s possession, while the lands are used for any of the purposes authorized by the charter. Dodge v. Bums, 6 Wis. 514. Where damages sustained by per- sons from the construction of a railroad over their land are to be assessed by a jury, the plans and estimates of the company for that portion of the road are admissible in evidence. Jacksonville & Savanna R. R. Co. w. Kidder, 21 111. 131. And although a railroad company, in proceed- ings before a jury summoned to assess damages for land taken by their road, will not be bound by the verbal representations and promises of the engineers and others, such officers may be examined for the pur- pose of explaining the plans and estimates. Jacksonville & Savanna B. E. Co. v. Kidder, 21 111. lai. A duly attested 1034 EMINENT DOMAIN. [CHAP. XIV. The award made by the statutory tribunal is exhaustive ; and the land-owner cannot maintain an action for damages which should have been but were not assessed and allowed in that proceeding ; even though he claimed them there, and they were erroneously dis- allowed. His remedy for such error is 'by steps to review the award.^ Where the appraisal of land damages was reduced below what it otherwise would have been, by the representations of the agents of the company that the road would be constructed in a particular manner, made at the time of the appraisal to the commissioners, and such reptesentations were not fulfilled in the actual construction of the road, whereby the plaintifi' sustained serious loss and injury, it was held that the adjudication of the commissioners was a merger of all previous negotiations upon the subject, and that no action could be maintained for constructing the railway contrary to such representations, provided it was done in a prudent and proper man- ner.^ So where a land-owner's buildings were supplied with water from a permanent spring, and after an excavation had been made in his land for the purpose of a railroad, water appeared in the exca- vation about fifteen feet below the surface of the ground, and the spring disappeared, it was held that, damages having been assessed to him before the excavation was made, an action to recover damages could not be sustained. Unforeseen injuries will he presumed, to have been considered &y the commissioners.^ Where the water of a river was obstructed in its passage to the plaintiff's factory, and diverted therefrom so as to produce a substan- tial injury to him, by the works of a canal company, of which no survey or appraisal under the charter had been had, and for which copy of the report and estimate of county which was one principal ground of his commissioners, on an application for dam- claim for damages, may properly go to the ages occasioned by taking the petitioner's jury with other papers in the case. Cha- land for a railroad, is admissible in evi- pin «. Boston & Providence B. R. Co., 6 dence fbr the respondents, on a hearing he- Cush. (Mass. ) 422. And the respondents fore a sheriffs jury, to estimate the peti- may prove that, since the hearing began, tioner'a damages. In , such case, it is no they have located a passenger station near objection to a witness that he had been a, his land^ over which the railroad crossed. viewer to appraise damages. White v. Shattuck v. Stonehani Branch, &c. Eail- Boston & Providence Railroad Corpora- road, 6 Allen (Mass. ), 115. tion, 6 Cush. (Mass.) 420. On a hearing ^ Van Schoiek v. Delaware & Raritan before a sherift's jury, to estimate the dam- Canal Co., 20 N. J. L. 249. ages of an owner's land taken for a rail- ^ Butman v. Vt. Central R. R. Co., 27 road, the order of the county commission- Vt. 500. ers, estimating the damages, and directing ' Aldrich v. Cheshire R. R. Co., 20 the making of a passage-way for draining N. H. 859. the petitioner's premises, the wetting of SEC. 859.] MEASTJRE OP DAMAGES: GENERAL RULE. 1035 no damages had been assessed, and no compensation made, it was held that the plaintiff was entitled to redress in an action on the case, although 'the dams producing such injury were erected with the ap- probation of the commissioners appointed by the charter, before the plaintiff had any interest in the 'property to which the injury was done, and had not since been raised. The duty of the commissioners is, to ascertain the injury sustained by individuals by the works of the company, and to assess damages for such injury ; but they have no authority to assess dainages for injuries arising from time to time.-' In the construction of their road, a railroad company are bound to exercise the rights conferred upon them with a prudent regard to tiie rights of others ; and if they are guilty of negligence in this respect, whereby a land-owner is iiljured, it is not to be presumed, in the absence of proof, that the damages thus occasioned were taken into consideration by the commissioners in their appraisal. Commis- sioners are to assess such damages "as are likely to arise" from a proper construction of the road, with a due rega,rd to the rights of others, and such only will be deemed to have been taken into con- sideration in the assessment.^ Where no remedy is given by their charter, a railroad company is liable for an injury resulting from the construction of their works, as at common law.^ The remedy pro- vided by statute must be followed so far as it extends ; but where a statute authorizes a corporation to do certain acts, and provides a remedy for only a part of the injury arising therefrom, the injured party may have his action at common law for the residue.* Where no steps are taken by the company to present a case to commis- sioners appointed by the charter of a corporation to assess the dam- ages done to individuals by the works of the company, in the manner directed by the charter, the parties are left in the same situation as if no such authority was given ; and the rights of one party, and the liability of the other^ are the same as, at common law if only the company can bring proceedings.^ Sec. 259. Measure of Damages: General rule. — When the whole of a person's land is taken by proceedings in. invitum, the market 1 Denslow v. New Haven & Northamp- Central R. R. Co. v. Boden, 10 Ind. 96 ; ton Co., 16 Conn. 98. New Albauy & Salem E. R. Co. v. O'Dailj, 2 Clark V. Vt. & Canada R. E. ('o., 28 12 Ind. 551.^ Vt. 103. * Town of Troy v. Cheshire R. R. Co., ' Tate V. Chip & Mississippi R. R. Co., 3 Fost. 83. 7 Ind. 479 j Evansville & Crawfordsville * Denalow v. New Haven & Northamp. R. E. Co. 0. Dick, 9 Ind. 433 J Indiana ton Co., 16 Conn. 98. 1036 EMINENT DOMAIN. [chap. XIV. value of the land at the time of the talcing is the true measure of com- pensation ; but when only a part of the land is taken, the compen-* sation to be given should be assessed, not only vnth reference to the market value of the land taken, hut also with reference to the in^wrious effects upon the part not taken, and the deterioration ii(b the value of the whole lot} The real inquiry is, what was the fair market value 1 5Vilmes «. Minneapolis, &o. E. E. Co., 29 Minn. 242 ; Sheldon v. Minneapolis, &c. R. R. Co., 29 id. 318 ; Bowen v. At- lantic, &o. E. R. Co., 17 S. C. 574 ; At- chison & Nebraska R. R. Co. v. Gough, 29 Kan. 94 ; St. Louis, Arkansas, &c. E. E. Co. V. Anderson, 39 Ark. 167 ; St. Louis, Jerseyville, &c. E. E. Co. v. Kirby, 104 111. 343 ; Leher v. Minneapolis, &c. E. E. Co., 29 Minn. 256 ; Burlington, &o. E. E. Co. 1). Sohluntz, 14 Net. 421 ; Dre- her V. Iowa Southwestern R. R. Co., 59 Iowa, 699 J Hot Springs R. R. Go. v. Ty- ler, 36 Ark. 205 ; Central Branch Union Paoifio R. R. Co. v. Andrews, 26 Kan. 702 ; In n Boston, Hoosac Tunnel, &c. R. E. Co., 22 Hun (N. Y.), 176; Nottingham V. Baltimore & Potomac R. R. Co., 3 Mac- Arthur (D.C.) \ In re Morgan R. R. Co., 32 La* An. 871 ; St. Louis, &c. R. E. Co. V. Morris, 35 Ark. 622 ; Kansas City, Em- poria, &c. R. E. Co. V. Men-ill, 25 Kan. 421 ; Freemont, Elkhorn, &o. R. R. Co. V. Whalen, 11 Neb. 585 ; Bleach ti. Chi- cago, &c. R. R. Co., 48 Wis. 168 ; Lafay- ette, Munoie, &e. R. R. Co. u. Murdock, 68 Ind. 137 ; Chicago, Eock Island, &o. R. R. Co. V. Carey, 90 111. 514 ; Harts- horn, V. B. C. R. & N. R. R. Co., 52 Iowa, 613 I Renwick v. D. & N. E. E. Co. 49 Iowa, 664 ; Illinois Western Ex- tension R. R. Co. V. Maynard, 93 111. 591 ; Cliicago & Iowa R. R. Co. v. Hopkins, 90 111. 316 ; Henderson v. N. Y. Central R. R. Co., 78 N. Y. 423 ; Cincinnati, &c. R. R. Co. V. Lopgworth, 30 Ohio St. 108 ; Jeffersonville, &o. E. R. Co. v. Osterle, 13 BUsh (Ky.), 667 ; Swinney v. Fort Wayne, &c. R. R. Co., 59 Ind. 205. The depreciation of the value of property aris- ing from the construction of a railroad across or near it, is a proper subject for compensatiort ; as, where a railroad was located so near a barn that the risk of fire from passing engines depreciated the value of the bam. Wilmington, &o. E. R. Co. V. Staufier, 60 Penn. St. 374. Where land is taken for the purposes of a railroad, the compensation to he paid therefor is not lim- ited to the actual value of the land taken, or to the depreciation of the remainder of the lot from which it is taken. Besides these elements, many others are to be considered, — such as the market value of the lot and the owner's other and adjoining property before and after the railroad is built, the, diffi- culty of access, the risk of fire, the incon- veniences of noise, smoke, or increased dan- ger, (He. Matter of Utioa, &o. R. R. Co., 56 Barb. (S. Y.) 456; In re Prospect Park & Coney Island E. R. Co., 13 Hun (N. Y.), 345. In Black River, &o. R. R. Co. V. Barnard, 9 Hun (N. Y.), 104, BoARDMAN, J. said : "The proper inquiry for the commissioners is, what is the fair market value of the whole property ? and then, what will be the fair market value of the property not taken ? The difference will be the true amount of compensation to ba awarded." Troy & Boston R. R. Co. v. Lee, 13 Barb. (N.Y.)169; Matter of Furman St., 17 Wend. (N. Y.) 649 ; Canandaigua, &c. R. R. Co. V. Payne, 16 Barb. (N. Y.) 273 ; Rochester & Syracuse R. R. Co. v. Bud- long, 6 How. Pr. (N. Y.) 467; Albany Northern R. R. Co. v. Lansing, 16 Barb. (N. Y.) 68 ; In re Poughkeepsie, &c. R. R. .Co., 63 id. 151 ; In re Utica, &o. R. R. Co., 56 id. 456 ; Bloomfield, &c. Gas L. Co., 1 T. &C. (N. Y.) 549 ; Quincy, &c. E. R. Co. V. Ridge, 57 Mo. 599 ; Dru- ry V. Midland R. R. Co., 127 Mass. 571 ; Edmonds v. Boston, 108 id. 535 ; Pres- brey v. Old Colony R. R. Co., 103 id. 1 ; Pai-ks V. Boston, 15 Pick. (Mass. ) 198 ; Dickenson «. Fitchburg, 11 Cush. (Mass.) 201 ; Meacham v. Fitchburg E. R. Co., 4 id. 291 ; Walker v. Old Colony R. R. Co., 103 Mass. 10 ; Eobb v. Maysville, &o. R. R. Co., 8 Met. (Ky.) 117; Henderson, &o. R. E. Co. V. Dickerson, 17 B. Mon. (Ky.) 173; Richmond, &o. T. Co. v. SEC. 259.] MEASURE OP DAMAGES : GENERAL RULE. 1037 of the -land hefore the taking, and what is its fair market value since the taking,^ in view of the uses to which the land is or might be Rogers, 1 Duv. (Ky.) 135 ; White Water Valley R. R. Co, «. McClure, 29 Ind. 536 ; Baltimore, &o. R. R. Co., 52 Ind. 229 ; Grand Rapids, &o. R. R. Co. u Horn, 41 id. 479 ; Montmorency Grand Road Co. ■». Stockton, 43 id. 328 ; Pacific R. R. Co. ». Crystal, 25 Mo. 544. Wliere tlie land was used as a stock ranch, and comprised a large tract, it was held that the owner was entitled to recover for the injury to the whole property, and was not confined to the injury done to the quarter- section over, which the road was built. In this case the railway ran diagonally through one quarter-section so as to cut oif the water, timber, house, and corrals, from the main body of the land. Kansas City, Emporia, &c. R. R. Co. v. Memll, ' Matter of Rensselaer I). Saratoga R.R. Co., 4 Paige Oh. (N. Y.) 553; Rood v. N.Y. & Erie R. R. Co., 18 Barb. (N. Y.) 80 ; Fumiss V. Hudson River R. R. Co., 5 Sandf; (N. Y.) 551 ; Troy & Boston R. R. Co. V. Lee, 13 Barb. (N.Y.) 169 ; Veagh V. Auburn, &c. R.R. Co., 2 Barb. Ch. (N. Y. ) 489 ; Raman v. Portland, 8 B. Mon. (Ky^) 282 ; Haynes v. Thomas, 7 Ind. 88 ; Tate v. Ohio, &c. R. R. Co., 7 id. 479 ; Bosman «. I & C. R. R. Co., 9 id. 467 ; Lackland r. No. Missouri R. R. Co., 31 Mo. 380 ; Cumraiusville v, Cincinnati R. R. Co., 14 Ohio St. 424 ; Crawford v. Delaware, 7 Ohio St. 459 ; Brand v. Ham- mersmith, L. E. 2 Q. B. 225 ; Chamber- lain V. West End Ry. Co., 2 B. & S. 605 ; Beckett v. Midland Ry. Co., L. R. 3 C. B. 83 ; Mahon v. Utica, &o. R. E. Co., 24 N. Y. 658 ; Drake v. Hudson River, E. R. Co., 7 Barb. (N. Y.) 508 ; -Fletcher v. Auburn, &C. E. E. Co., 25 Wend. (N. Y.) 462 ; Baltimore, &c. R. R. Co. v. Lansing, 52 Ind. 229 ; Buchanan v. C. C. & D. R. R. Co., 46 Iowa, 366; Parks v. Wisconsin Central R. R. Co., 33 Wis. 413 ; Simmons D. St. Paul, &c. R. E. Co., 18 Minn. 184; JTonica & Fetersburgh R. R. Co. ■». Unsicker, 22 111. 221 ; White ■». Charlotte, &c. R. E. Co., 6 Eich. (S. C.) 47. W. laid out a street, dedicated it to the public use as a highway, and laid out the adjoining preinises into village lots. The N. rail- road company, without making him com- pensation, proceeded to cut down the street nearly three feet and lay tracks thereon. In an equitable action by W. against the N., wherein, upon his death, his executora and devisees were made plaintiffs, it was held that, as one item of damages, the nmount of the depreciation in value of the lots by reason of the N.'s acts might prop- erly be allowed ; also, that the judgment might properly provide that if the plain- tiffs tender to the N. a conveyance of the interest which W. had, at the time of his death, in the land occupied by the tracks, ■ and release the N. from all claim for dam- ages except said item, the N. should pay a further sum, or in default, be enjoined from so using the land. Henderson v. N. Y. Central R. E. Co., 78 N. Y. 423. An award of $2,500 damages for the taking by a rsdlroad company of a strip of land, about \\ acres, cutting an old race-track into two nearly equal parts was held not to be excessive, — the whole land being worth, as a public ^race-course, about $25,000 ; as a training track, $7,000 ; and the strip, for agi-icilltural purposes, about 1500. Re New York, Woodhaven, &c. R.R. Co., -21 Hun (N. Y), 250. The court may lay down a rule as to the value of a life estate, as an independent estate entitled to damages. The true rule for esti- mating the damages as a whole is the dif- ference between the value of the property before the making of the road, ^nd its value after the road is made, as affected by it, and of this difference the life-tenant is entitled to the proportion of the whole which the value of the life estate bears to the whole difference. The net annual value of the premises, multiplied by the years of the life-tenant's expectancy of life, and reduced by calculation to a present cash value, is not an incorrect mode of determining the value that the life estate bears to the whole difference. Pittsburgh, Virginia, &c. E. E. Co. v. Bentley, 88 Penn. St. 178. 1038 EMINENT DOMAIN. [OHAP. XIV. devoted, and the uses to which it is to be put under the taking, and the probable effect of such use upon the value of the land remaining ? 25 Kan. 421 ; Woodfolk v. Nashville, &o. E. K. Co,, 2 Swan (Tenn.), 422 ; Rook- ford, &o. E. E. Co.' V. McKinley, 64 111. 838 i Wyandotte,' &o. E. R. Co. v. Waldo, 70 Mo. 629 ; Raleigh, &c. K. E. Co. v. -Wicker, 74 N. C. 220 ; Winona, &o. R. R. Co. V. Waldron, 11 Minn. 515 ; Lak^ Superior &o. E. E. Co. v. Greve, 17 Minn. 322 ; Chapman v. Oshkosh, &o. E. E. Co., 33 Wis. 629 ; Dearborn v. Bos- ton,,&o. R. R. Co., 24 N. H. 179 ; Car- penter V. Landaif, 42 N. H. 218 ; Mount Washington Road, m re, 35 N. H. 134 ; Virginia, &e. E. E. Co. v. Henry, 8 Nev. 165 ; Robhins V. Milwaukee, &c, E. E.Co., 6 Wis: 636 i Selma, &o. R. R. Co. v. Red- wine, 51 Ga. 470 ; Imlay v. Union Branch R. R. Co., 26 Conn. 249 ; Winona, &o. R. R. Co. V. Denman, 10 Minn. 267 ; San Francisco, &c. R. R. Co. v, Caldwell, 31 Cal. 367 ; Brooks v. Davenport, '&a, R. R. Co., 37 Iowa, 99 ; Saterv. Burlington, &c. ' Flank-EoadCo., 1 Iowa, 386 ; Harrison v. Iowa Midland R. R. Co., 36 Iowa, 323 ; Fleming v. Chicago, &e. R. R. Co., 34 id. 353; Henry w. Dubuque, &o. R. R.Co.,2 id. 288 ; Harrison v. Young, 9 Ga. 859 ; Wil- son V. Eockford, &o. R. R. Co. 59 111. 273. A company obtained a legislative license to lay tracks in a puWio avenue ; but it was adjudged invalid, because it did not pro- vide for compensation to the owners of the fee. The company then instituted pro- ceedings to condemn the lands required. It was held that the commissioners to ap- praise damages should regard the land in the avenue as still forming a part of the parcels to which it had belonged, but sub- ject to the easement of a highway, and should award as damages the difference be- tween the market value of the whole prop- erty from which the railroad was to be severed, before the taking, and its value after the taking, with the railroad upon the land taken. Matter of Prospect Park, &o. R. R. Co., 13 Hun (N. Y.), 345. In a proceeding to assess damages for taking land for a railroad, the owner may show that, before he. knew the land would be sought therefor, he laid it out for sale as town-lots ; and he may adduce his unre- corded diagram to show how the subdivi- sion ia affected by the appropriation. The jury may take such subdivision into ac- count, though there has been no legal dedication as a town-plat. Cincinnati, &c. R. R. Co. V. Longworth, 80 Ohio St. 108. Plaintiffs owned lots abutting upon a navi- gable lake ; and defendant, without their consent, constructed its railvAy within the water of the lake, but so near the front of their lots as to cut off their access to the body of the lake, leaving along such front a pool of stagnant water ; and by reason thereof the lots were greatly depreciated. It was held that plaintiffs were entitled to recover damages for the inj,ury. Delaplaine V. Chicago, &o. R. R. Co.,, 42 Wis. 214. The rule that the value of lands taken for railroad purposes is to be fixed as at the date of the appraisement, and not as at the date of the location of the line, ex- tends to the appraisement of damages to contiguous lands of the same owner. And where the company has in faot built its road over land of another without author- ity, and proceedings are afterwards taken to condemn the land, the measure of ap- praisement is the value which the land taken would now have if the road had not been constructed upon it, together with the difference between the present value of the owner's contiguous land with the road, properly constructed, where it is, and what would have been its present value if the road had not been built. In deter- mining the damages under the above rule, the condition and value of the land, as it was just before the road was constructed, may be considered. Lyon v. Green Bay, ' &c. R. R. Co., 42 Wis.' 538. A provision of a railroad charter authorizing the jury, in assessing the damages for taking one's land for the road, to consider the benefits accruing to other lands of his along the line was held to be void, as special leg- islation. The enhancement must be con- fined to the tract upon which thu right of eminent domain is enforced. Paducah, &c, R. R. Co.». Stovall, 12 Heisk. (Tenn.) 1.' And the incidental benefits to the owner which may be set off against his incidental damages, in estimating the damages to be paid him for the taking of his land for rail- SEC. 259.] MEASURE OP DAMAGES : GENERAL KULE. 1039 and the difference is the proper measure or compensation ; but merely conjecturai or speculative damages are not to be included. Thus, dam- road purposes, do not include the general advance in the value of land resulting from the construction of the road. Mississippi E. E. Co. V. McDonald, 12 Heisk. (Tenn.) 54 ; Cleveland, &c. E. E. Co. v. Ball, 5 Ohio St. 568 ; Powers v. Hazleton, &o. E. E. Co., 33 Ohio St. 429 ; Hatch v. Cincinnati, &c. R. R. Co., 18 Ohio St. 92; Schuylkill Nav. Co. v. Fan, 4 W. & S. (Penn.) 362 ; Schuylkill Nav. Co. v. Tho- burn, 7 S. & R. (Penn.) 411; Missouri, &c. R. R. Co. V. Haines, 10 Kan. 437,; Atchison, Topeka, & Santa Fe R. Bt Co. V. 'Blackburn, 10 id. 477; Tide Water Canal Co. v. Archer, 9G. & J. (Md.) 479 ; Searle v. Lackawanna, ^a. R. R. Co.", 33 Penii. St. 57 ; Patten v. Northern Cen- tral R. R. Co., 33 id. 426 ; Pittsburgh, &e. E. R. Co. V. Bentley, 88 Penn. St. 128 ; Hoffer «. Penn. Canal Co., 87, Penn. St. 221 ; Watson v. Pittsburgh, &c. E. R. Co., 37 Penn. St. 469 ; Hornstein ». Atlantic, &c. R. R. Co., 51 Penn. St. 87 ; Penn. & N. Y. E. E. Co. V. Bunnell, 81 Penn. St. 414 ; East Brandy wine, &c. E. E. Co. v. Ranack, 78 Penn. St. 454 ; East Penn. E. E. Co. V. Heister, 40 Penn. St. 53; Wilmington, &c. E. E. Co. v. Stauffer, 60 Penn. St. 374 ; Western Penn. E. E. Co. V. Hill, 56 Penn. St. 460 ; Brown v. Corey, 43 Penn. St. 453 ; East Penn. E. E. Co. V. Hottenstine, 47 Penn. St. 28. In Hen- derson, &c. E. E. Co. V. Dickerson, 17 B. Mon. (Ky.) 173, the court say: "The Con- stitution secures to the owner of land just compensation for his property, before he can be deprived of its value to him, con- sidering its relative position to his other land, and the other circumstances which may diminish or enhance that value ; and this is the only mode which can afford him a just compensation for its loss. To third persons the same quantity of land of equal quality, on one of the boundaries of the farm, might be of as much value as if it were situated in the middle of the farm ; but at the same time its value, thus ascertained, might be a very inadequate compensation to the owner, if the land were taken out of the middle of the farm, instead of being taken on one of its boundary lines. The real value of the land to the owner as it is actually situated, and not merely its value regarding it as a separate and independent piece of land, he has a right to demand, and nothing less can secure him a just compensation for his property." Scott v. St. Paul & Chicago > E. E. Co., 21 Minn. 322 ; Eockford, E. I., & St. Louis E. E. Co. v. McKinleji, 64 IlL 338; Petition of Mount Washington E. E. Co., 35 N. H. 134 ; Keithsburg & Eastern R. E. Co. V. Henry, 79 111. 290 ; Watson V. Pittsburgh, &c. E. R. Co., 37 Penn. St. 469 ; Baltimore, Pitts. & Chicago R. E. Co. V. Lansing, 52 Ind. 229 ; White Val- ley R. E. Co. V. McClure, 29 Ind. 536 ; Montmorency Gravel Road Co. v. Stock- ton, 43 Md. 328. The owner is, however, entitled to recover only for those injuries which are direct in their nature, and can in no case recover for those which he shares in common viUh the rest of tlie public. Pres- brey v. Old Colony & Newport R. R. Co., 103 Mass. 1 ; Keithsburg & Eastern R. R. Co. V. Henry, 79 111. 290 ; and as it is presumed that the company will only do that which it is authoiized to do he will be permitted to recover only where the road, if properly constructed and operated, will with reasonable certainty injure his property. Fremont, Eckhorn, &c. R. R. Co. 1). Whalen, 5 Am. & Eng. R. R. Gas. 364. The right to recover damages is sometimes confined by, statute to the loss resulting from the actual taking, without consider- ing the use of the part , appro,priated. 'Albany Northern Central E. R. Co. v^ Lans- ing, 16 Barb. (N. Y.) 68 ; Brooks v. Dav- enport & St. Paul R.R. Co., 37 Iowa, 99. But this is not usually the case, the use to which the part appropriated is put being ordinarily taken into account, and the remarks of Hareis, J., in Albany Nor- thern R. R. Co. V. Lansing, ante, that the question " whether the land taken was to be used for a railroad or a garden was a question, so far as compensation is con- cerned, with which the commissioners had nothing to do," do not express the true rule as now held, and the use to which the land taken is to be devoted, is of the highest consequence in determining what is a just compensation for the taking. 1040 EMINENT DOMAIN. [chap. XIV. ages for being deprived of tlie advantage of keeping off others from the neighborhood, and thus saving the owner' from the risk and annoyance of their proximity, or by reason of the inconvenience and delay occasioned by having to convey his manufactured articles across the railroad, and of the obstruction by trains passing along it,^ are not to be considered ; nor is he entitled to be compensated for injury occasioned to his lands by persons in the trains overlooking the grpunds, thus rendering them less comfortable and secluded for the walks of the family and visitors ; nor can the party claim com- pensation for vibration of the ground caused by the use of the road," the statute only "extending to damages caused by the construction of the works.^ In England, where the statute provides for damages to lands injuriously affected, the owner of a house none of whose lands have been taken for the purposes of the railway, can recover compensation for injury to the house caused by vibration, smoke, Bangor, &c. E. E. Co. v. McComb, 60 Me. 290 ; Pacific E. E. Co. v. Chrystal, 25 Mo. 544 ; Atchison, &c. E. R. Co, v. Blackshire, 10 Kan. 477 ; Newby v. Platte Co., 25 Mo. 258; Buchanan v. C. C. & D.R. R. Co., 46 Iowa, 366 ; Cleveland, &c. E. E. Co. V. Ball, 5 Ohio St. 568. Sometimes the mode in which the line of the railroad cuts the tract does peculiar damage, as for example, wliere it outs obliquely instead of at right angles, and this is an element of damage. St. Joseph & Denver City E. E. Co. v. Orr, 8 Kan. 419. In such a case the owner is entitled to special damage for the special injury. And where a party owned a whole quarter- section of land', one forty of which only was traversed by the railroad, it was held that he was entitled to recover damages for the effect of the appropriation on the whole quarter-section, and not on the one forty merely. Bigelow & West Wiscon- sin E. E. Co., 27 Wis. 478. In estimat- ing the injury done to the tract the- jury are not eonfined to a consideration of the use to which it is then applied by the owner. They may consider every eircumstance, present or future, which affects its present value. Montmorency Gravel Eoad Co. v. Stockton, 43 Ind. 328 ; Mississippi Eiver Bridge Co. v. King, 58 Mo. 491, includ- ing the character, situation, present and probable use of the tract. Bangor and Piscataquis E, E. Co. v. McComb, 60 Me. 290. If it is peculiarly fitted for building purposes, a plan, with prospective streets laid down thereon, showing the peculiar damage done by the railroad, is admissible in evidence. Cincinnati & Springfield E. E. Co. u Longworth, 30 Ohio St. 108. The proper method of computing the damage is to estimate the difference in market value before and af- ter the taking. Bangor & Piscataquis E. E. Co. V. McComb, 60 Me. 290 ; Ed- mands v. City of Boston, 108 Mass. 535 ; Somerville & Eastern E. E. Co. v. Doughty, 22 N. J. L. 495 ; Watson v. Pittsburgh & Connellsville E. E. Co., 37 Penn. St. 469 ; In re Utica, Chenango, &c. E. E. Co. 56 Barb. (N. Y.)456; Charleston, &c. E.E. Co. V. Blake, 12 Eich. (S. C. ) 634 ; Green- ville, &e. R. E. Co. v. Partlow, 5 id. 628; Galena, &c. E. E. Co. v. Birbeck, 70 111. 208 ; Chicago, &c. E. E. Co. v. Hall, 90 111. 42 ; Milwaukee, &o. R. R. Co. u Eble, 4 Chand. (Wis.) 72 ; Snyder v. Western Union E. E. Co., 25 Wis. 60 ; Driver v. Western Union E. R. Co., 32 Wis. 569 ; Bigelow V. West Wisconsin R. E. Co., 27 Wis. 478. 1 Pattern). Northern Centra] E. E. Co., 33 Penn. St. 426. / " Eegina v. Southeastern Ey. Co., 29 L. T. 124 ; Penny, in re, 7 El. & Bl. 660. SEC. 259.] MBASTJKE OF DAMAGES: GENBKAL EULE. 1041 and noise, in running locomotives with trains in the ordinary man- ner after the constriiction of the railway.^ But he cannot claim damage in respect of lands being injuriously affected by reason of their track crossing a public highway near his dwelling upon a level, the highway being the principal approach to his grounds.^ The owner of a tavern, none of whose land is taken by the rail- way, is entitled to compensation for' the diversion of the highway from his premises, and for prospective profits from unfinished houses.^ Neither sentiment nor fancy is to be considered, and the actual value of the land, independent of any estimate placed upon it by the owner, or his attachment thereto, or the associations connected therewith, is the true measure of compensation.* The circumstance tliat the owner does not wish to sell is not to be con- sidered,^ but< th'e circumstance that the land taken affords the only route by which the company can make a connection with other rail- ways terminating at. that point, is proper to be Considered.® The diversion of trade from one locality to another caused by the ereC' tion of any public improvement is of a speculative and consequen- tial character, and not proper to be considered as an' element of damage ; "^ nor can anything be recovered for an injury to the good- wiR of a business.® In Pennsylvania, where the charter of a railroad company pro- vided that the viewers should award compensation to those whose land was taken " for the damages done or likely to be done, or that have been or may be sustained," it was held that such remote and contingent future damage as accidental fi.re from loQomotives was not intended to be estimated or paid for. The phrase " damages likely to be done " provides for any damage, direct or consequential, , but does not imply that which is speculative and imaginary. Eail- road companies are liable at common law for the damages done by 1 Brand v. Hammersmith & City By. ^ Henderson, &c. E. R, Co. v. Dioken- Co., L. E. 2 Q. B. 223.' son, 17 B. Mon. (Ky.) 173. 2 Caledoniau Ey. Co. v. Ogilvy, 29 « Brisbane v. St. Paul, &o. R. R. Co., Eng. L. & Eq. 22., 23 Minn. 114. 8 Chamberlain v. West End Ey. Co. ' Selma E. R. Co. v. Camp, 45 Ga. 186 ; &c, 11 Week. Rep. 472. Thompson v. Androscoggin Imtirovement * Tufts w.Charlestown, 4 Gray (Mass.), Co., 54 N. H. 545; Boston, &c. E. R. 637; Somerville; &C.R.R. Co. ■». Doughty, Co. v. Old Colony R. R. Co., 12 Cush. 22 N. J. L. 495 ; Giesy v. Cincinnati, &c. (Mass.) 605 ; Mount Washington Road, R. R, Co., 4 Ohio St. 308 ; Elizabeth," &o. 35 N. H. 134. R. R. Co. V. Helm, 8 Bush (Ky.), 681 ; 8 Edmands v. Boston, 108 Mass. 535. Seai-le v. Lackawanna, &c. E. R. Co., 33 Penn. St. 57. 1042 EMINENT DOMAIN. [chap. XIV. fire occasioned hy the negligent management of thei/r locomotive en- gines ; and for the risk of such damage, no compensation can be allowed at the taking of the land for the cpnstruction of the road.^ But according to the weight of authority, the increased danger, of fire, from locomotives,^ and the increased cost of insurance, and the decreased rental value of the remaining premises resulting from ..the proper and prudent operation of the road, are proper elements of damages,* and are not speculative or remote, within the ruje exclud- ing that class of damages from estimation, as the increase in the cost of insurance dimiilishes the value of the property to the extent of such increase ;* and it has been held that the evidence of the sec^ retary of an insurance company, that his company had declined the risk on account of the increased danger from fire, is competent.^ The damages are to be assessed in view of the uses to which the land may be put, and not necessarily in view of its present use, or productive valu^ to the owner.^ The question is, what is its value 1 Sunbury & Erie R. R. Co. i>. Hutn- mell, 27 Penn. St. 99 ; Lehigh Valley R. R. Co. V. Lazarus, 28 Penn. St. 203. But see Wilmington, &c. R. E. Co, o. StaufFer, 60 Penn. St. 374, where such damages are held proper elements to be considered. 2 Swinney 1). Fort Wayne, &c. K. B. Co., 59 Ind. 205 ; Curtis v. St. Paul, &c. E. E. Co., 20 Minn. 28 ; Colville v. St. Paul, &c. E. R. Co., 19 Minn. 283 ; Bloomfield, &c. Gas L. Co. V. Calkins, 1 T. & C. (N. Y.) 549 ; Philadelphia, &c. E. E. Co. ■». Yeiser, 8 Penn. St. 366 ; Snyder v. Western Union E. E. Co., 25 Wis. 60 ; SoraerviUe, &o. E. E. Co. V. Doughty, 22 N. J. L. 495 ; Oregon, &c. E. R. Co. v. Barlow, 3 Oregon, 311; Lafayette, &c. R. E. Co. i). Murdock, 68 Ind. 137 ; St. Louis, &c. E. R. Co. v. Teters, 68 111. 144 ; Jones v. Chicago, &o. R, E. Co., 68 111. 144 ; Small v. Chicago, &e. E. E. Co., 50 Iowa, 338 ; Proprietors of Locks, &o. V. Nashua & Lowell ' R. E. Co., 10 Cush. (Mass.) 385. ' Atlantic & Great Western E. E. Co. v. Bobbins, 85 Ohio St. 531. See Patten v. Northern Central E. E. Co., 33 Penn. St. 426, where it was held that the probable increased post of insurance was too remote to be considered as an element of damage ; and see \Vilmington, &c. E. E. Co. v. Stauf- fer, 60 Penn. St. 374, where increase in the cost of insurance is held to be a proper element of damages. ;or, &c. R. R. Co. v. McComb, 60 Me. 290; Keithsburgh R. R. Co. v. Henry, 79 111, 290; Pierce v. Worcester, && R. R. Co., 105 Mass. 199; Somerville, &c. E. R. Co. V. Doughty, 22 N. J. L. 495; Adden V. White Mountain R. R. Co., 65 N. H. 413; Matter of Utica, &c. E. E. Co., 56 Barb. (N. Y.) 456; Wilmington, &c. R. R. Co. V. Stauffer,<Mite; Curtis i). St. Paul, &c. R. E. Co., 20 Minn. 28; Oregon B. E. Co. V. Barlow, 3 Oregon, 311 ; In re Slack- port, &c. Ry. Co., 83 L. J. Q. B. 251. But see Itademacher v. Milwaukee R. R. Co., 41, Iowa, 297; Fleming i). Chicago, &c. R. E. Co., 34 Iowa, 353 ; Lehigh Valley R. R. Co. V. Lazarus, 28 Penn. St. 203, where increase in rates of insurance is held not to be an element of damage in such cases. » Webber v. Western E. E. Co., 2 Met. (Mass.) 147. ' Haslam V. Galena, &c. R. E. Co., 64 111. 353 ; BurtJ). Wigglesworth, 117 Mass. 302; Dorian v. East Brandjrwine, &c. R. R. Co., 46 Penn. St. 520; Mississippi River Bridge o. Bing, 58 Mo. 491 ; Begina v. Brown, 36 L. J. Q. B. 322. Evidence of an offer made for land is inadmissible to pro^e its value. Such testimony is easily manufactured. It is warranted neither on principle nor on authority, and is too dan- gerous to be tolerated. St. Joseph, &o. R. E. Co. V. Orr, 8 Kan. 419. In estimat- SEC. 259.] MEASUKE OF DAMAGES : GENERAL EULE. 104: fqr the uses to which men of ordinary prudence and business sagacity would devote it, if it was their own ? ^ But no prospective value can be considered, — as, what the land would be worth if buildings of. a certain class were erected upon it ; ^ or in the case of timber land, what its value would be if cleared up and converted into tillable, land.^ If a surplus water-power is taken, it should be valued at its ing location damages, the sheriff's jury may coDsider as elements thereof the value of the land taken ; the disfigurement of the remainder of the lot hy the strip taken, and the use made of it ; the character, situation, present and probable use of the remainder of the lot ; the distance of the owner's buildings from the location ; and all inconveniences from the noise of whistles and bells, rattling of trains, jarring of the ground, and from smoke, so far as arising from the legal use of the strip taken, ex- cluding all common and indirect damages. Bangor, &c. E. R. Co. v. McComb, 60 Me. 290. And consideration should be had of the depreciation of dependent or adjoining property fiot condemned, as "well as the value of property actually taken. Matter of Poughkeepsie, &c. E. E. Co., 63 Barb. (N. Y.) 151. And the alleged loss of the beneficial enjoyment of a spring thereon is a proper subject for the consideration of the jury. Peoria, -&c. E. E. Co. ■«. Bryant, 57 111. 473.' All injuries which are appre- ciable, and result to the owner of land from the construction of a railroad thereover, are legitimate subjects in the estimation of damages, in a proceeding for condemning the right of way. Where, by reason of embankments thrown up for the road, ditching of the adjacent land becomes necessary, the expense thereof is a proper element to be considered in assessing the damages ; but cattle-guards under the track are not such ati element, because they are an obstruction to the free use of the right of way. The mode of the assessment is immaterial, so that the damages are as- sessed fairly and truly. St. Louis, Van- dalla, & T. H. R. R. Co. v. MoUet, 59 HI. 235. 1 Dwightw. Hampden, 11 Cush. (Mass.) 201 ; Shenango, &c. E. R. Co. v. Braham, 79 Penn. St. 447. The true test as to the damages to be paid for land taken is its market value, but in estimating the dam- ages reference may be had, not merely to the uses to which the land is actually ap- plied, but its capabilities, so far as they add to its market value, may also be taken into consideration. If the laud has a mine under its surface, that fact may be considered if the mine adds to the market value of the land, even though said mine Jhas never been used. So of a water-power, even though it has never been utilized. Haslam v. Galena & Southern Wisconsin R. R. Co., 64 111. 353. The damage done to a mill shoal, by taking land for railway uses, should be established by .showing the actual value at the time of the taking, and then showing how much it is dimin- ished by the location of the railway. Selma, &o. E. Co. v. Keith, 53 Ga. 178. ^ Burt V. Wigglesworth, 117 Mass. 302. s Rider v. Striker, 63 N. Y. 136. In a Massachusetts case it appeared that there ■was upon the petitioner's remaining land chestnut timber suitable for ties. The re- spondent oflfered evidence that there would be a greater demand for such ties in the vicinity by reason of the constraction of the railway; and also offered evidence "of a convenient place of delivery at a new depot of said railroad." There was evi- dence of a station of another line more ac- cessible from the petitioner's woodland by the distance of one third of a mile. The evidence offered was rejected. It was held that the respondent had no ground of ex- ception. Childs V. New Haven & North- ampton Co., 133 Mass..253. Wherea,town- plat, not executed pursuant to the statute, is used to show the intention to dedicate to public use certain lands appearing On it, and Other evidence of acts, declarations, and circumstances — some tending to prove, and others to disprove, the existence of such an intention — is given, it is not for the court to determine the force and effect of the plat, but the whole question should 1044 EMINENT DOMAIN. [chap. XIV. market value in its then condition.^ A farm should ordinarily be valued as a farm ; but instances might occur where from its prox- imity to a large and growing town or city, it might be proper to place a value upon the land for the purposes of building-lots, and it may be shown that the land is in demand for such purposes. So it upon the farm?" It was teld proper. St. Paul & Sioux Ctty R. K. Co. v. Murphy, 19 Minn. 500 ; Colvill i>. St. Paul, &B. R. R. Co., 19 Minn. 283. Where, on ap- peal, the jury, under charge of an officer, examined the premises, it was held to be error to instruct the jury that the testi- mony hearing upon the subject in contro- versy, and such reasonable deductions as were legitimately to be drawn from it, in connection with such facts as presented themselves in viewing the premises, con- stituted the only proper basis on which to rest their verdict. It is impossible to know what facts might present themselves to the jury upon the view of the premises. Pitts- burg, Ft. Wayne, &e. B. R. Co. v. Swinney, 59 Ind. 100. In a Massachusetts case, upon the assessment of damages it ap- be left to the jury. Downer v. St. Paul & Chicago R. R. Co., 23 Minn. 271. A wit- ness who had testified fully as to the actual value of a block of ground both before and after the taking, was asked what a particu- lar front of the block was worth before the road was constructed. It was held that there was no error in excluding the ques- tion. Diedrich v. Northwestern Union R. R, Co., 47 Wis. 662. So where the question on trial was the market value of two lots with a dwelling-house and other improvements thereon,, in the city of Co- lumbus, on March 30, 1880, it was held that testimony that on April 10, 1877, the said lots were bought by D., at administra- tor's sale, for seventy-five cents each, was erroneously admitted. Dietriohs v. I^in- ooln & Northwestern R. R. Co., 12 Neb. 225. Upon an issue as to the value of real .peared that the estate out of which the estate, evidence is not admissible to prove what other property in the vicinity has been offered at. Lehmicke v. St. Paul, Stillwater, & Taylor's Falls R. R. Co., 19 Minn. 464. A witness was properly al- lowed to be asked what another portion of the property was valuable for, and to an- swer that it would be valuable for building_ and residence purposes. Colvill v. St. Paul & Chicago R. R. Co., 19 Minn. 283. But proof of the value of the land to the rail- way company is not admissible. Selma, &o. R. B. Co. V. Keith, 53 Ga. 178. On a trial before a jury on appeal, there is no inflexible rule which limits the period over which inquiry may be extended as to the market value of the lands taken. . How long anterior or subsequent to the first ap- praisement the investigation may be carried must be left in a great measure to the sound discretion of the court. Montclair R. R. Co. 0. Benson, 86 N. J. L. S57. The re- spondent being called as a witness in his own behalf was asked: "What was the farm worth at the time of the commence- ment of these proceedings in 1870, without the railroad being upon the farm, and what was its value at that time with the railroad land was taken was a farm, and that the land taken was on the bank of a river. The bill of exceptions stated that a farmer who had lived many years in the vicihity, and had known of sales of land in the neighborhood, and was allowed without objection to testify as to the value of the land taken, and of the inconvenience re- sulting to a farmer from being deprived of access to the river, was asked what, in his opinion, was the damage to the remainder of the farm by the loss of the river bank, which was excluded; that the petitioner also claimed damages by 'reason of being excluded from the river bank for the pur- poses of fishing, and from a fishing-ground, but that it did not appear that the witness had any special or superior knowledge on the subject inquired about ; and that other witnesses for the petitioner testified to the value of the river bank as affording facili- tie's for fishing. It was held that the bill of exceptions disclosed no error in the ex- clusion of the testimony. Boston & Maine R. R. Co. V. Montgomery, 119 Mass. 114. 1 Dorian ». EastBrandywineR. R. Co., 46 Penn. St. 320 ; Selma, &c. R. R. Co. v. Keith, 53 Ga. 178. ' SEC. 259. j MEASURE OP DAMAGES : GENBBAL RULE. 1045 may be shown that the land is in demand for the purpose of erecting shops.^ If the land has been sought for certain specific purposes within a recent period, or if within a short time the owner has had a bond fide offer for the land, these might undoubtedly be shown as bearing upon the question of value. , So it may be shown that there are quarries upon, or minerals in the land, which give it a special value.2 If the land is adapted to the b'uilding of wharves, or any special purpose which increases its value, these facts may be shown ; but unless there is a fair probability that they would 'be required for that purpose, such evidence woiild have but little weight upon the question of actual value. A farm situated at a considerable distance from a town or city, where there is no reasonable likelihood that it would for a great many years, if ever, be sought for building purposes, would derive no increased value from the circumstance that it had been divided into building-lots. In order to derive any added value from such a circumstance, it must not only appear that the land is desirabje for that purpose, but also that there is a reasonable proba- bility that it will soon be sought for such purposes. Neither is if competent for the company to show, to reduce the damages, what. its value would be if it was devoted to a certain purpose, -^ as, what a factory would be worth if converted into a tenement house,^ or what premises would be worth if devoted to the pork-packing business,* or otherwise improved.^ If the use of the premises is restricted to certain purposes' by covenants running with the land, of course its value for such purposes only can be considered.^ Not only the abstract value of the land taken is to be estimated, but compensation should also be given for the damages arising from the severance of the part taken from the remainder of the land, and for the loss of value caused by the appropriation for the special use for which it is taken,^ and for the difficulty and inconvenience 1 Whitney v. Boston, 98 Mass. 312. for the assessment of damages occasioned 2 Haslam v. Galena, &c. E. R. Co., 64 to a land-owner by the taking of land for a 111. 353. railroad extend to the injury occasioned ' New Britain v. Sargent, 42 Conn. 137. by the interruption of the proprietor's pas- * Selnia, &c. B. B. Co. v. Keith, 53 Ga. sage from one part of his land to another, 178. as well as to any other injury which may be * Fleming v. Chicago, &c. E. E. Co., 34 caused by the construction and use of the Iowa, 353. road ; and when such damages as may be 'Matter of Albany St. 11 j Wend, anticipated from its future construction, if (N. Y.) 149; First Parish ». Middlesex, 7 it has not been made, are assessed, they Gray (Mass.), 106. are made up of, the whole injury done or '' Cleveland & Pittsburgh B. E. Co. v. expected to be done, including not only Ball, 5 Ohio St. 668. Statutory provisions the loss of the use of the land produced by 1046 EMINENT DOMAIN. [chap. XIV. arising in getting to and from the several parts, the expense of addi- tional fences and all other injuries not of a remote or speculative the road, tut tlie prolaable expense of fences and the diminution of the value of the land by a separation from each other of different parts. Mason v, Kennebec & Portland K. E. Co., 31 Me. 215. "Where the words of a railway company's act are - capable of two intei'pretatione, but the general intent of the legislature is com- plete indemnification to the party whose land is taken by the company, the court will incline to that construction of the words which will make them consistent with the general intent. Eton College, ex parte, 15 Jur. 45. The jury are to take into consideration the injniy to the lands not taken, to the owner's dwelling-house on the estate, the subjection of his family to danger, his buildings to risk of fire, the inconvenience caused by embankments and excavations, and deterioration of his lands for agricultural purposes or for building- lots. Somerville & Easton B. R. Co. v. Doughty, 22 N. J. L. 495. But they cannot take into account damages to any other land than that which forms a part of the tract taken. St. Louis, &c. E. R. Co. V. Brown, 58 111. 61; Bangor, &c. R. R. Co. V. McComb, 60 Me. 290; New York Central, &B. E. R. Co., 6 Hun (N. Y.), 144.' The amount paid as compensation for land taken and for injury to the remaining estate, in pursuance of an award, covers all damage, Icnoion or contingent, by the constniction of the railway on tlie tabids purchMsed, amd all qther damage from the construction of the railway at other places, which is apparent and capable of being ascertained amd esti- mated when the compensation is awarded ; but it does not include any contingent and possible damage which may arise after- wards by the works of the company at other places, which cannot be foreseen by the arbitri)tor. Lawrence v. Northern By. Co., 16 Q. B. 643 ; Hatch v, Vt. Central E. R. Co., 25 Vt. 49; Clark i>. Birmingham, &c. Bridge Co., 41 Penn. St. 147; Stetsons. Chicago, &c. B. E. Co., 75111. 74; Struthers V. Dunkirk, &c. R. E.Co., 87 Penn. St. 82; Bradley v. New York & New Haven R. R. Co., 21 Conn. 294 ; Thompson v. Andro- scoggin B. R. Co. , 64 N. H. 545 ; 58 id. 1 08 ; Gould V. Hudson River R. R. Co., 6 N. Y. 622 ; Whittier v. Portland, &c. R. R. Co., 38 Me. 26 ; Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42; Carter v. Albany, 43 N. Y. 399. Where the waters on cer- tain lowl'ands were flowed back upon the plaintiff's land, by reason of insufficient openings in a railway constructed across such lowlands, it was held that the com- pany were liable to make good the dam- ages sustained by plaintiff, although no statute required them to make the open- ings, and they could not be compelled to do so by writ of mandamus. Lawrence v. Great Northern Ry. Co., 16 Q. B. 643. In estimating the '"loss or damage" occa- sioned by a railroad company whose -charter requires jcompensatlon to be paid for dam- ages and bemejits, in taking the right of way, the jury may estimate the value of the land taken by the company; the de- terioration of the parcels isolated ; the al- teration of arrangement required about the homestead; the loss of time and expendi- tures caused by any increase of care or dis- tance which had been occasioned; and the injury to the value of the place as a stand for a pUblio house, a mill, store, factory, or any purpose to which the land is devoted at the time of its taking. If the land is used for the purposes of a dwelling, its de- terioration in value for that purpose,' by reason of the clust, noise, and vibration from the trains, the smoke and cinders from the engine, is to be considered in esti- mating the damages. White v. Charlotte & South Carolina R. R. Co., 6 Rich. (S. C.) L. if. Where the arbitrators ap- pointed to assess damages for land taken by a railroad are required to take into con- sideration the advantages to be derived by the owner, such damages must be assessed as are the direct and immediate consequence of the road to the whole tract through which it passes. The exolnsive appropriation of a part, the inconvenience arising from a division of the property, or from increased difficulty of access, and the cost of addi- tional necessary fencing, are alike the direct and immediate result of such construction. Watson «. Pittsburgh & Connellsville E. R. Co., 87 Penn. St. 469. The market value of the land taken is the proper standard SEC. 259.] MEASURE OF DAMAGES : GENERAL ETJLE. 10^ bh'aracter.i Not only is damage for the severance to be given, but also, in a case where justice demands it, the land-owner is entitled to to be adopted. In addition to thisj the jury may allow for the disadvantages to the land from the manner in which it may he, out by the road as projected or con- structed. This is always done, unless the .advantages to the whole property outweigh it; in such case the amount of the prepon- derating advantages will stand against the value of the property taken, or other spe- cific inj ury done. East Pennsylvania E. R. Co. V. Hottenstine, 47 Penn. St. 28. Evi- dence is also admissible, in such a proceed- ing, as to what the property would have sold for before and after the road was made and in successful operation ; and such dif- ference in value is a measure of damages. • On the trial of an appeal from the award of damages by appraisers for land taken by a railroad company in the construction of their road, evidence of the price paid or amount received for land in the neighbor- hood, in particular instances, is inadmis- sible; the only proper test is the opinion of witnesses as to the value of the land taken, in view of its location ahd productiveness, or other uses, not speculative, or its market value, or the general selling price of land in the neighborhood." East Pennsylvania R. E. Co. V. -Hiester, 40 Penn. St. 53. But see Shattuck v. Stoneham Branch R. E. Co., 6 Allen (Mass.), 115. The opinions of witnesses, in regard to the ex- tent of damages which a land-owner will sustain by the appropriation of a part of his land for the construction of a" railway over it, are not admissible ; but they may express their opinion of the value of the Ifmd. ' Atlantic & Great Western E. E. Co. V. Campbell, 4 Ohio St. 668; Cleveland & Pittsburgh B. R. Co. i>. Ball, 6 Ohio St. 383. Where the law casts the duty of maintaining fences, crossings, &c., upon the adjacent land-owner, the expense of doing so is an important consideration in estimating damages for the land taken; and this expense should be borne by the company, in addition to paying the value of the land, for otherwise the land is taken without an equivalent. Quimby v. Ver- mont Central R. R. Co., 23 Vt. 387; Kyle V. Auburn & Rochester R. E. Co., 2 Barb. Ch. (K.Y.) 489; Matter of Rensselaer, &c. E. R. Co., 4 Paige (N. Y.), 553; MU- waukee, &c. R. E. Co. v. Eble, 4 Chand. (Wis.) 72; Evansville R. R. Co. ■». Stringer, 10 Ind. 551 ; Evansville, &o. R. R. Co. v. Cochran, 10 Ind. 560; Evansville,, &c. E. R. Co. V. Fitzpatrick, 10 Ind. 210 ; Plank-Eoad Co. v. Eamage, 20 Penn. St. 95; Sacramento Valley B. B. Co. v. Moffatt, 6 Cal. 74. When suitable crossings over its road between the different parts of an owner's land are made by the company, the jury, in assessing land damages, should not allow the expense of making crossings to the land-owner. March v. Portsmouth & Concord E. E. Co., 19 N. H. 372; Phila- delphia,' &c. E.E. Co. V. Trimble, 4 Whart. (Penn. ) 47 . A jury, in assessing damages, may allow the actual damagfes incident to taking the road, arising from inconvenience in crossing the railroad, and interference with crossings already established, . which the land-owner has sustained, together with damages for the failure or neglect of the company to build the crossings as required by law, but not for making the crossings themselves, — the latter being a duty of the corporation. East Pennsylvania E. E. Co. V. Heister, 40 Penn. St. 53. ^ St. Louis, Arkansas, &c. R. E. Co. v. Anderson, 36 Ark. M7: Galena, &c. R. E. Co. V. Birbeck, 70 111. 208; Texas & Pacific R. R. Co. V. Durrett,. 57 Tex. 48. If the effect is to make it more inconvenient and expensive to manage the remaining portion of the land, that is an element of damage to be considered, and witnesses acquainted with the land and the proper modes of oar- " rylng it on may give their opinion as to the increased expense of caiTying on the farm in consequence of the building of the road. Tucker v. Mass. Central R. R. Co., 118 Mass. 546; Jones v. Chicago, &c. R. B. Co., 68 111. 380; Peoria, Atlanta, &c. R. E. Co. V. Sawyer, 71 111. 361 ; Page v. Chicago, &c. E. R. Co., 70 111. 324; Eberhart v. Chicago, &c. E. R. Co., 70 111. 347; Shel- don «. Minneapolis & St. Louis R. E. Co., 20 Minn. 318; St. Paul & Sioux City R. E. Co. V. Murphy, 19 Minn. 500; Kansas City, &e. Co. v. Merrill, 25 Kan. 421 ; Parks V. Wisconsin Central R. E. Co., 33 Wis. 413; Hartshorn v. Burlington, Cedar 1048 EMINENT DOMAIN. [OHAP. XIV. have damages allowed him for destroying the symmetry of his fields or lots ; and the amount awarded for this should be the deterioration Rapids, &c. R. B. Co., 52 Iowa, 613 ; Atchison, &c. E. R. Co. -o. Gough, 29 Kan. 94 ; Keithsburg, &c. E. R. Co. -o. Hemy, 79 111. 290 ; Wilmes v. Minneapolis, &c. R. E. Co., 29 Minn. 242; Michigan Air Line R. R. Co. v. Barnes, 44 Mich. 222 ; Miss. Riv. Bridge Co. v. Ring, 58 Mo. 491; Union R. K. Co. v. Moore, 80 Ind. 458. The expense of bnilding fences should be given when the statute makes no provision foi; their being built by the railroad com- pany. Milwaukee, &o. E. R. Co. v. Eble, 4 Chand. (Wis.) 72 ; Winona, &c. R. R. Co. V. Denman, 10 Minn. 257. Damages for cutting off access to streets, are to be considered. Little Miami, &c. E. R. Co, V. Naylor, 2 Ohio St. 235. If a railroad corporation takes by the right of eminent domain a part of a lot of flats, and thereby cuts off access from tide-water to the re- maining portion, the value of such access is an element proper to be considered by the jury in estimating the injury to the laud-owner ; but not the possibility that the corporation might be willing to allow spur tracks to be built on the remaining flats for the purpose of filling the same, or for purposes of business. Drury v. Mid- land R. E. Co., 127 Mass. 571. In a pro- ceeding by a railroad company for the condemnation of land for a right of way across the defendant's farm, it was held that the fact that the railroad separates the wood, water, and timber from the bal- ance of the farm, the inconvenience to the owner from the perpetual use of the track for moving trains, danger to stock kept on the farm, etc., might be considered, as ele- ments of damage, as well as the actual increase or decrease in the market value of the fai-m ; and where a railroad company has located and is operating its road over land, without condemnation thereof or otherwise acquiring the right of way, a purchaser at a judicial sale of land in which that part covered by the right of way is included, is, in subsequent con- demnation proceedings, entitled to com- pensation for the land taken for the right of way, and damages for injury to 'the re- mainder. He is also entitled to the benefit of any increase in the value of the land between the time of the tortious taking and the time of the condemnation. Chi- cago & Iowa R. R. Co. V. Hopkins, 90 111. 316. Where a railroad company, in con- structing a second track on its right of way over the plaintiff's farm, obstructed the prior drainage under the first track, so as to dam up and flow the water back on the farm, thereby rendering a considerable portion of it useless for cultivation, it was held that it was proper to instruct the jury that, in estimating the damages, they might consider the value of the land at the time the injury occurred, the decrease in value, and the damage to crops in con- •sequence of the overflow, or the increased expense occasioned thereby in harvesting the same ; but that it was erroneous to further instruct the jury that they might allow damages for the inconvenience of having one part of the farm separated from the other by the overflow, the damages occasioned by such overflow to the portion not overflowed, and the necessary expense, if any, which the plaintiff" sustained in the construction of necessary roads and bridges in con.sequence of such overflow, and upon the whole case that they were to give the plaintiff such damages as they believed, from the evidence, he had sustained. Chi- cago, Rock Island, &c. E. R. Co. v. Carey, 90 lU. 514. The fact that a railway com- pany appropriated a right of way over a fill or embankment, between the mainland and a crib which the plaintiff was not authorized to erect, would not deprive him of the right to damages for the right of way so appropriated. In such ca.se, the damages to the entire property used in the plaintifl's business of sawing, planing, &c., may be considered, although a street runs through the same. Eenwick v. D. & N. W. R. R. Co., 49 Iowa, 664. In estimat- ing the damages to land by the locating of a railroad through it, the plaintiff may show the depreciation in value of his whole farm, without regard to the govern- mental subdivisions into which it is sub- divided ; he may also show all the incon- veniences directly caused by the road, which tend to show a depreciation in the market value of the land. Hartshorn v. SEC. 259.] MBASUKE OF DAMAGES : GENERAL KULE. 1049 in value which the change in the shape of the farm or lots produces.^ The manner in which the land is cut, and all the surrounding circum- stances should be considered, and evidence is admissible to show how the road affected the whole lot of which only a small portion is taken,2 and such damages should be considered, although largely conjectural.^ Where a tract of five acres was cut off from the body of the plaintiff's farm, it was held that the value of .the five acres might be considered, and that it was the duty of the jury to consider the vajue of the component parts;* and the fact that when the road is built, suitable provision is made for the owner to cross and re- cross the location from one part to the other, and for the drainage of B., C. W., & N. R. Co., 62 Iowa, 613. A street-railway track may he lawfully authorized in a city street without com- pensating adjacent ^wners, \)\it a steam- railroad cannot, and Where one is so built without making compensation, an .adjoin- ing owner, who owns the soil of such street, may recover damages for the consequent injury to the freehold ; one not owning such soil can recover only for such dam- ages as he can prove arising from such misconduct of the company as constitutes a nuisance. ' Grand Bapids & Jnd. R. B. Co. V. Heisel, 38 Mich. 62. In assessing damages for railroad purposes, work already done by the company upon the land cannot be regarded as part of the realty, Jbr the purpose of increasing the d^images. Morgan's Appeal, 39 Mich. 675. Where certain land on the Potomac River, leased for a fishery for a tenn of years, was taken by a railroad company, the lessee's buildings pulled down, and his fish-berth obstructed, it was held that the assessment and payment of damages into court by the company upon the condemna- tion proceeding did not preclude him from recovering damages for the injury. Alex- andria & Fredericksbhrg R. E. Co. v. fauhoe, 31 Gratt. (Va.) 761. So it is liable for damages to crops resulting, from an embankment causing an overflow. Houston & Texas Central E. R. Co. i;. Knapp, 51 Tex. 592. A railroad company had the right to take land for a right of way, not exceeding 100 feet in width ; it entered certain land, without instituting any proceedings, and built its road. In an action of trespass brought by the owner of VOL. II. — 16 the land, it was held that if the jury found that the company had used the land as far as 50 feet from the centre of its track at any point on one side, they might regard it as an election to take the 50 feet on both sides for the entire length, and give damages accordingly. Duck Elver Valley, &o. R. E. Co. v. Cochrane, 3 Lea (Tenn.), 478. Where a railroad company so lays its track as to perma- nently obstruct access fo an adjoining lot, the owner thereof may recover damages for the permanent injury to his lot. Cen- tral Branch Union Pacific R. R. Co. v. Twine, 23 Kan. 586. Where, a railroad company occupies a public highway for its track, without appropriating or other- wise acquiring the right to do so, an owner of abutting lands, having the fee in the lands, covered by the highway, may -pro- ceed, under 69 Ohio L. 95, §'21, to compel the company to appropriate the right of w&y for its road. Lawrence R. E. Co. o. Williams, 35 Ohio St. 168. In an action for an injury to abutting property by rea- son of the construction of a railroad pn a public street or highway, the plaintiff's title may be established by proof of adverse possession. Lawrence R. E. Co. v. Cobb, 35 Ohio St. 94. 1 Plank-Roai Cd. v. Eamage, 20 Penn. St. 95. 2 Dreher v. Iowa, &c. E. R. Co., 59 Iowa, 599 ; Brooks v. Davenport & St. Paul R. R. Co., 37 id. 99. * McEeynolds v. Baltimore & Ohio E. E. Co., 106 111. 152. * Harrison v. Iowa Midland E. R. Co., 36 Iowa, 323. 1050 EMINENT DOMAIN. FCHAP. XIV. the part of the land which is severed, and that he accepts the same and uses it with an understanding between himself and the company that he has the right to do so, is held not to be admissible in reduc- tion of his damages.^ But it has been held that, even though the company has an absolute right, by the erection of high fences, etc., to prevent the passage of a land-owner across its road, to the differ- ent parts of his estate, yet he cannot rely upon such anticipated obstruction as a ground of damages against the company.^ The value of land for farm use is a proper subject of inquiry,^ and in an action to recover for a right of way through a farm it was held that a question put to a witness as follows wai? not erroneous: " How much less in value was the farm immediately after taking the land for a right of way, and in consequence thereof, than it was immediately before, — not taking into account any supposed benefits to result from the building of the road ? " * The elements composing there when he bought it ; that it was till- able, and had been cultivated by a tenant the last two years. The jury were in- structed that, for the purpose of assessing the respondent's damages, his farm must be considered as a unit, but what such unit includes the jnry must determine ; that the petitioner contended that said eighty acres was a separate parcel Of land, and not within the farm, and not to be considered in estimating the damages ; that this was a question for them ; if it was a part of the farm, they might consider the effect of the road upon respondent's con- venience and safety in cultivating it from his dwelling, in connection with his other land constituting his farm, otherwise not; and this instruction was held to be proper. St. Paul & Sioux City R. R. Co. v. Murphy, 19 Minn. 500. Where » farm, through which a railroad ran, consisted of two hundred and forty acres, and the petition for the condemnation of the right of way describes the road as running through both the quarter-section and the eighty- acre piece, the jury, in assessing damages, should consider the damage done to the whole faiTn by i-eason of the constiniction of the road. Keithsburg & Eastern R. E. Co. *. Henry, 79 111. 290. G. was the owner of a contiguous and compact farm of two hundred and forty acres. Inde- pendence creek ran in a curved and irreguluT line through the southwestem 1 Old Colonv R. R. Co. v. Miller, 125 Mass. 1. 2 Boston & Worcester R. R. Co. v. Old Colony R. R. Co., 12 Cush. (Mass.) 605. " Michigan Air Line R. R. Co. v. Barnes, 44 Mich. 222. * Harrison v. Iowa Midland R. R. Co., S6 Iowa, 333 ; Brooks «. Davenport, &e. R. R. Co., 37 id. 99. The injury to the entire tract, out of which a part is taken, must be considered. Reisner v. Union Depot Co., 27 Kan. 382; Sheldon v. Minneapolis, &c. R. R. Co., 29 Minn. 318. Thus, where a railway ran through one quarter-section of a stock farm of nine hundred and sixty acres, it was held that the damage to the tract as a whole should be considered. Kansas City, &c. R. R. Co. V. Merrill, 25 Kan. 421. So the plaintiff being the owner of six forty-acre tracts lying in one body, over two of which the defendant's railway had been built, there wag no error in permitting him to prove the diminution in value of the whole tract by reason of such taking. Parks v. Wisconsin Central R. R. Co., 33 Wis. 413. Where a part of the respondent's land lay north, and the rest, being an eighty-acre tract, lay south of a public road, running on a line between it and the rest, re- spondent testified that he bought said etghty-acre tract in 1858 of K. ; that K. occupied it as a separate farm, and had a farm-house on it ; that the road wag SEC. 259.] MEASURE OP DAMAGES : GENERAL RULE. 1051 the damages include not only the value of the land taken for the way, but also the injury to the remaining land which forms apart- portion of the farm. This ereek was the bojjudary line between Atchison and Doni- phan counties, and some sixty acres of- the farm wei-e in Atchison, and the balance in Doniphan, county. Proceedings 'were in- stituted in Doniphan county to eondenm a right of' way for the A. & N. K. B- Co. through this farm. The right of way crossed the farm only in Doniphan county, and touched no part of the land in Atchi- son. The commissioners, in their report, fixed the value of the land taken, and also awarded damages to the balance of the farm as an entirety. The amount of this award was deposited by the railroad com- pany with the trea-surer of Doniphan county. On a tiial of an appeal from this awaid to the district court of Doniphan county, it was held that such court did not err in permitting an inquiry as to the damages to the farm as a whole, including that part in Atchison county, and in ren- dering judgment for such damages. Atchi- son .& Nebraska B. B; Co. v. Gough, 29 Kan. 94. The injury should not be limited to the legal subdivisions of land traversed by the road, but the injury to the farm as a whole should he considered. Hartshoi-n v. Burlington, Cedar Bapids, & Northern E. E. Co., 52 Iowa, 613. Thus, the plaintiff was the owner of one hundred and twenty acres of land consist- ing of three forties in line fj'om east to west ; the laind was occupied and used by him as one farm, his residence being on the easterly forty. Defendant, having located its line of railway across the two westerly sections, instituted proceedings for condemnation. It was held that in assessing the compensation to be paid to the plaintiff, he is entitled to have the effect of the appropriation of the right of way across the two westerly forties upon the easterly forty considered and taken into account, although the petition for the appointment of commissipners described the two westerly for(;jes only. Wilmes v. Minneapolis, &c. B. B. Co., 29 Minn. 242. In awarding damages to the owner of land taken for a railroad, the exposure of his remaining land and buildings to fire from the company's engines is a proper element to be considered in making the estimate. The statute which imposes on railroad corporations an absolute liability for all damages caused by fires from their locomotives, dogs not necessarily preclude a recovery of anything for this cause ; but the question is, how much will the prop- erty be diminished in value by reason of such exposure, considering at the same time the indemnity provided by the statute ? Adden v. White Mountains, N. H. E. E. Co., 55 N. H. 413. Increased exposure to fire by the passage of a railroad track di- rectly through lands near where buildings are already erected may be considered by the jury in estimating the compensatipn due to the land-owner. An instruction is objeotionable which tends to mislead the jury into the belief that they should take into consideration the injury to the prop- erty for farming purposes only. Colvill V. St. Paul & Chicago E. JR. Co., 19 Minn. 2S3. So, under the statutes of Indiana, danger from fire should be considered in the assessment of damages, Swinney v. Ft. Wayne, Muncie, & Cincinnati R. B. Co., 59 Ind. -205 ; Lafayette, Muncie, & Bloomington B. B. Co. , v. Murdoek, 68 Ind. 137. But in Iowa, evidence of the value lof the buildings and a gi'dve, and the increased hazard from fire by reason of their proximity to the track, is im- proper. The increased danger of the destruction of buildings and the like by fire is too remote and contingent for legal inquiry. Lance v. Chicago, Milwaukee, & St. Paul E. E. Co., 57 Iowa, 636. If the effect of constructing a railway through a farm, is to make it more iuconvapient and expensive to cultivate and manage the remaining land of the owner, • this is a proper element of damage for the consider- ation of the jury ; and a witness who is acquainted with the land and knows tlie proper mode of cultivating it may give his opinion as to the increased expense to the owner in canning on the farm arising from the location of the railway through it. Tucker v. Massachusetts Central R . B. Co., 118 Mass. 546. The value is to be assessed with reference to what it is worth for sale in view of the use to which it may 1052 EMINENT DOMAIN. [OHAP. XIV. of the same tract ; and as important factors, the difficulty of commu- nication with the severed parts, and the inconvenient shape iu which the iigmaining land is left, the cost of new fences and suitable farm crossings,^ — unless by statute the company is bouijid to build and maintain them, — as well as all other causes not of a remote or specu- lative character aire to be considered.'^ Where the company is by law required to build and maintain the fences, neither the expense of building or maintaining them should be considered, nor the fact be put, and not simply with reference to it9 productiveness to tlie owner iu the con- dition in which he has seen fit to leave it. Mississippi Eiver Bridge Co. v. Ring, 58 Mo. 491. 1 Atchison & Nebraska K. B. Co. v. Gough, 29 Kan. 94. * St. Jjouis, Arkansas & Texas R. E. Co. V. Anderson, 39 Ark. 167 ; Galena & Southern Wisconsin K. R. Co. v. BiAeck, 70 111. 208 ; Hartshorn v. Burlington, Cedar Rapids, & Northern R. R. Co., 62 Iowa, 613 ; Chicago & Iowa R. R. Co. v. Hopkins, 90 111. 316 ; Bowen u. Atlantic, &c. R. R. Co., 17 S. C. 674. All special matters affecting the value of the land should be considered. Bowen ■». Atlantic i & French Broad Valley E. E. Co., 17 S. C. 574. Where a tract of five aci-es was by the right of way cut off from the body of the plaintiffs farm, it was held that the value of the five acres might be proved, and that the jury might well consider the value of the component parts, which is the differ- ence in value before and after the taking. Harrison v. Iowa Midland R. R. Co., 36 Iowa, 323 ; Danville, Hazleton, & Wilkes- baiTe R. R. Co. o. Gearhart, 81 * Penn. St. 266 I East Brandywine & Waynesburg E. R. Co. V. Runok, 78 Penn. St. 454. The cash value of the property to be taken is the true measure of damages, and the cost of improvements upon the land should not be considered unless they in fact increase its value to the extent of their cost. Jacksonville & Southeastern E. E. Co. V. Walsh, 106 111. 253. The jury are to take into consideration the real value of the land taken, and the diminished value of the remainder, and may for that purpose take into account not only the purposes to which the land is or has been applied, but any other benefi- cial purposes to which it may be applied, which would affect the amount of compen- sation or damages. Cincinnati & Spring- field E. E. Co. V. Longwprth, 80 Ohio St. i08. Thus the owner is entitled to have as one item of damage in all cases the fair market value of the pwrt actually taken. And where a portion of the tract remains, if it can he said with reasonable certainty that the road properly constructed and carefully operated will injv/re it, he is also entitled to recover for that. But in- juries merely speciilative and contingent upon the improper construction or negli- gent operation of the road are too remote and uncertain to be considered. Fremont, Elkhorn, & Missouri Valley R. R. Co. v. Whalen, 11 Neb. 685. An award embraces only those damages which may reasonably be anticipated upon the assumption that the line will be built and operated with due care and skill, and with no unnecessary injuiy to property outside of the right of way. Burlington & Missouri River R. R. Co. V. Schluntz, 14 Neb. 421. And the jury should value the property without reference to the person of the owner or the actual state of his business. Pitts- burgh & Lake Erie R. R. Co. v. Robinson, 95 Penn. St. 426. In assessing the dam- ages to another portion of a farm, aside from the value of the land taken for "a right of way, the jury should consider the road as running only througli the farm, and not consider any general benefit which the road may prove in making a better market or convenience for travel ; and in some cases they would be justified in esti- mating the damages to the farm the same as though the road commenced on one side of it and rnn across to the other side and no further. St. Louis, Jcrseyville, &c. E. E. Co. V. Kirby, 104 111. 845. SEC. 259.] MEASURE OF DAMAGES : GENERAL RULE. 1053 that the cdmpany has neglected to build or maintain them, as the land- owner has an adequate remedy for this breach of duty on the part of the company.^ So, too, it has been held that the expense of fencing uncleared or uncultivated lands, should it at any time be cleared or cultivated, should not be considered, as it is too uncertain and re- mote to be estimated.^ The value of growing crops destroyed by the appropriation of the lands both inside and outside of the location,^ the value of trees and timber upon the land taken, the inconvenience and danger of crossing the track, the danger to horses and cattle, , the liability of teams to be frightened by passing* trains, and the increased danger from fire have all been held proper elements of damages.* ' Jones V. Chicago, &o. E. E. Co., 68 111. 380. The inconveiileiice of laving the land temporarily thrown open in the progress of the construction of the road, is an element of damage. St. Louis, Jersey- ville, & Springfield E. E. Co. u. Kirby, 104 III. 345. Evidence of the value of trees standing on the lands taken, that the farm Would be depreciated by reason of the inconvenience and danger of cross- ing the track, the danger to horses and cattle, the liability of teams" to be fright- ened, the danger from fire, &c., is admis- sible. Parks V. Wisconsin Central E. E. Co., 33 Wis. 413. An instruction that the marketable value of property is the amount for which the property would sell if put upon the open market and sold in the manner in which property is ordinarily sold in the community in which it is situ- ated is correct, and is not necelssarily cal- culated to raise the inference that a forced sale was meant by, the court. Everett v. Union Pacific E. E. Co., 59 la. 243. Upon the question of the value of the land in controversy, any purpose for which the same is adapted, and which enters into and affects its market value, may be prop- erly considered. Sherman "v. St. Paul, Minneapolis, & Manitoba E. E. Co., 30 Minn. 227. A compensatory, uot a specu- lative remuneration is guaranteed. The difference in the value of t'he owner's property with the appropjjation, and that without it, is the rule of compensation. This difference must be ascertained with reference to the value of the property in view of its present character and sur- roundings. It cannot be enhanced by proving facts of a contingent and prospec- tive character, such as the probable rents that may be derived from the property, or its special value as a prospective monopoly ■ of a roadway to the adjoining lands of other persons. Powers v. Hazelton & Letonia E. E. Co., 33 Ohio St. 429. In a proceeding to condemn land for a right of way, the jury allowed a lessee of the land taken, who.se lease had three years to run, the amount of rent he was to pay per acre for the whole farm as to the land con- demned, while he contended that for gar- dening it might yield much more. There was no proof that it would be ,used for such purpose, and no other damages were shown, and it appeared that the lessee had the option of terminating the lease at any time. It was held that the verdict would not be set aside as against the evidence, and that future profits of the land taken were too -iiii'certain to be depended upon as a measure of damages. . Booker v- Venice & Cafondelet E. R. Co., 101 111. 333. 2 Ealeigh & Augusta R. E. Co. v. Wicker, 74 N. C. 220; Owners of wild land are entitled to compensation when such land is taken under the power of eminent domain. Wallace v. Karlenowef- ski, 19 Barb. (N. Y.) 118. " Lance v. Cticago, Milwaukee, & St. Paul E. E. Co., 57 Iowa, 636. * Parks w. Wisconsin Central R. E. Co., 33 Wis. 413. But it has been held not proper to consider the extra care neces- sary in the use of teams liable to be fright- ened, because of the proximity of the 1054 EMINENT DOMAIN. [OHAP. XIV. Damages from the diminution of the value of adjacent property by smoke, sparks, cinders, the noise and rumbling of trains, as well as the cracking of the walls from the vibration caused by the trains, may be considered in determining the compensation to which the land-owner is entitled, where there are buildings upon the land oc- cupied as dwellings or for other purposes.^ So the expense of re- moving buildings or other erections from the land taken, which he has the right to remove,^ or necessary changes in the land not taken, or of making erections thereon which are necessary to be made to put it in a situation or condition to be used should be considered ; ^ but the expenses are to be limited to a sum reasonably necessary for the purpose, and not by such expense as the owner may see fit to incur from personal reasons, or to gratify his own tastes. So it l\as been held that where the danger from fire to buildings outside the location is such as to render it advisable, the owner is to be allowed the expense of removing them * But he is not entitled to be allowed for the expense of removing personal property from the land taken,^ nor can any personal inconvenience or injury not connected with the land be considered * Cutting off access from houses, mills< and other places of business,'' the interruption of business occasioned by taking down a part of the building ' should be considered ; and where the statute provides for compensation for " all damages " that may be occasioned by the tak- railroad. Atchison, &o. B, R. Co. v. (N. Y.) 95 ; St. Louis, &o. R. R. Co. w. Lyon, 24 Kan, 745. Mallett, 59 111. 235 ; Price ■;;. Milwaukee, 1 Jeffersonville, &c. R. R. Co. v. Es- &o. R. R. Co., 27 Wis. 98 j Chase v. terlee, 13 Bush (Ky.), 667 ; Union R. R., Worcester, 108 Mass. 60 ; Com. v. BoB- &o. Co. V. Moore, 80 In^. 458. At a ton, &c. K. R. Co,, 8 Cush. (Mass.) 25; commissioners' hearing to appraise dara- Buell «. Worcester, 119 Mass. 872. ages to an abutter for occupation by a * Oregon R. R. Co. ■». Barlow, 8 Ore- railroad company of a portion of a street gon, 811. for two additional tracks, evidence that ' Central Pacific E. R. Co. v. Pearson, the jarring of the walls by heavy trains 85 Cal. 247. would require repairs costing $1,000 per " Bird v. Great Eastern Ry. Co., 84 L. year, and that the portion of the lot not J. C. P. 866 j llickett v. Metropolitan taken was depreciated by the noise, smoke, Ry. Co., 84 L. J, Q. B. 257. and increased danger, was held to be ad- ' West Penn. R, B. Co. v. Hill, 56 missible, and the rejection of such evi- 'Penn. St, 460 ; East & West India Docks dence is a ground for "setting aside the Ry. Co. v. Gattke, 3 Mac. & G. 155 j commissioners' award. lie New York Chamberlain ii. West End Ry. Co., 81 L. Central, &o. R, R. Co., 15 Hun (N. Y.), J. Q. B. 201, But see Biokotts v. Metro- 63. politan Ry. Co.^ L. R. 2 H, L. 175, where ^ Chicago, &o. R. R. Co, v. Carey, 90 a street is only temporarily obstructed. 111. 514. 8 Patterson v. Boston, 23 Pick. (Mass.) « Estabrook v. Erie R. E. Co,, 61 Barb. 485, SEC. 259.] MEASUKB OP DAMAGES: GENERAL EULE. 1056 ing of the land, the assessment should embrace inconveniences from excavations, endangering buildings or adjacent land, embankments in, or obstruction of streets, obstructing lights air, or otherwise im- pairing the value of the premises for the purposes of residence or business, and many other elements which properly come under the head of consequential damages.^ And where the statute provides for damages to " those who may be injured," or " damaged thereby," all injuries for which an action would lie at common law should be considered ; and a person so injured, whether any part of his estate is taken or not, is. entitled to compensation for such injuries; but such damages need not be paid in advance.^ Disetdvantages which impair the value of the property remaining are elements of damage, such as the inconvenience from the noise of whistles, the ringing of bells, the noise of the trains,^ the inoonvenience of opening gates and bars,^ and any and every cause w^hich directly deteriorates the value of the remaining estate.* But these are only elements to be con- 1 Bradley v. New Yort & N. H. E. R. Co., 21 Conn. 294. 2 Columbia Bridge Co. v. Geisse, 33 N. J. L. 558 ; Kooh o. Williamsport, &o, R. R. Co., 65 Penn. St. 288 ; Spaugler's Appeal, 64 id. 387 j Stetson v. Chicago, . &c. E. E. Co., 75 111. 74 ; Patterson y. Chicago, &c. E. E. Co., 75 111. 588 ; Hut- ton V. London, &o. Ey. Co., 18 L. J. Ch. 345. » White V. Charlotte R. E. Co., 6 Eieh. (S. C.) 47 ; Bangor, &c. E. E. Co, ». MoGomb, 60 Me. 290. * Minnesota, &c. R. E. Co. v. Doran, 17 Minn. 188. The damages in an action for Injuries to property by reason of the construction of a railway in the street ad- jacent thereto, is the difference between the rental value of the property as the road is constructed and what it would be if it had been properly constructed. O'Connor V. St. Louis, &c. E. E. Co., 56 Iowa, 735, Where there are other railways running through the farm neav the onA from-whioh damages are claimed for the taking of land, this circumstance is to he taken into account in estimating the damages result- ing from the additional burden upon the estate. Union E. R. Transfer & Stock Yard Co. v. Moore, 80 Ind. 458. « Curtis V. St. Paul, &c. R. R. Co., 20 Minn. 28 ; Wilson «. Rookford, &c, E. R. Co., 59 111. 273 ; St. Louis, &c. R. R. Co. V. Teters, 68 111. 144. Inconvenience from new fences or ditches, — Whitewater, &q, R. R. Co, V, MoClure, 29 Ind. 536, ~ and evidence of all matters bearing upon the question of damages is admissible^ — Danville, Hazleton, &c. R. R. Co. v. vGearhart, 81* Penn. St. 266, — as of cuts made in the land, — Atchison, &c. R. R, Co. V. Blackshire, 10 Kan. 477, — the fact that the road passes tlu'ough a ledge of rocks near by, which will have to be blasted, — Sabin v. Vt. Central E. E; Co., 25 Vt. 363, — or that a stream is to be di- verted from the lands, or a mill-race will be destroyed. Baltimore & Potomac E. E. Co. V. Magruder, 34 Md. 79 ; Beaver v. Western Maryland R. R. Co., cited 34 Md. 79. If growing crops are damaged^ their value may be proved as an element of damage, and also the increased risk from fire. Lance v. Chicago, &c. E. E. Co., 57 Iowa, 686. If the construction of a railroad lessens the value of adjoining" land of the land-owner by preventing the flow of surface water thereon, this cir- cumstance is an element of damage. Pflegar v. Hastings, &c. E. E. Co., 28 'Minn. 510. The inquiry as to damages should be confined to the tract of land de» scribed in the petition, in the absence of a cross-bill by the defendant showing that 1066 EMINENT DOMAIN. [chap. XIV. sidered in determining what the market value of the land remaining is, and the difference between its market value, and the market he owns contiguous lands which -Ml he damaged. Jones v. Chicago & Iowa R. li, Co., 68 111. 380. The true measure of compensation for land not taken by a rail- way for a right of way is the difference between what the whole property would have sold for unaffected by the railroad and what it would sell for as affected by it, if it would sell for less. The damages must be for an actual diminution of the market value of tlie land, and not specula- tive. Page *. Chicago, Milwaukee, & St. Paul R. R; Co., 70 111. 324 ; Eberhart v. St. Paul, &c. E. R. Co., id. 347. The fact that by the construction of a railroad through a farm, a part of it is cut off should be taken into consideration in as- sessment of the damages. Peoria, Atlanta, & Decatur R. R. Co. v. Sawyer, 71 111. 361. In the case of damage to a party whose lands are not entered upon, but are injuriously affected by the exercise of the powers of a railway company upon its own lands, or upon the lands of another party, and for which damage compensation is re- quired to be made by § 6 of the Railway Clayises Consolidation Act (8 Vict. o. 20), it is not unlawful for the company to erect the works which occasion the damage be- fore the amount of compensation for the same is ascertained, paid, or deposited. Hutton V. London & South-Westei'n Ry. Co., 7 Hare, 259. Where a tract of land consists of several parcels all connected and constituting one body, the jury, in estimating the damages sustained by the owner by reason of the condemnation of a right of way for a railroad across the tract, should consider the injury to the whole, and not simply the injury to the parcels touched by the road. Wyandotte, Kansas City, & Northwestern R. R. Co. v. Waldo, 70 Mo. 629. The leaseholder of a house, with a forecourt abutting on a road, con- structed a building on the forecourt, sub- sequently to which a railway company made a trench in the road for the pui-pose of constructing its railway, in consequence of which the building was deprived of its lateral support from the adjacent land. A claim having been made for compensa- tion, a jilry was summoned, vrho found that the sinking of the ground had been caused by the erection of the new build- ing upon it, and that the lands of the claimant had not been injuriously affected by the works of the company. It was held that the jury hod exceeded their jurisdiction. Horrocks v. Metropolitan Ry. Co., 4 B. & S. 815. In a proceeding upon appeal to recover damages for the right of way appropriated to the use of a railroad company, the owner of the land filed a petition setting forth the claim, but made^thcrein no reference to the construc- tion of any crossings or bridges, and no sufttcient evidence was offei'ed showing any necessity for the land-owner to build a bridge for a farm crossing. It was held that a finding of |85 for a bridge as an element of damage could not be sustained. Atchison & Denver E. R. Co. v. Lyon, 24 Kan. 74S. Danger to teams and persons is too uncertain an element of damage to be considered. McReynolds v. Baltimore & Ohio R. R. Co., 106 111. 162 ; Atchison & Denver E. E. Co.' «. Lyon, 24 Kan. 746. But see Parks v. Wisconsin Ceuti"al R. R. Co., 33 Wis. 413. Depreciation in the value of land, occasioned by the con- struction of a railroad, is not in any legal sense a consequential damage. Turner v. B. R. Co., 8 Phila. (Penn.) 486. The law requires that for all the property taken by a railway company for its use, or damaged by it, just compensation must be made to the owners. If a building stands in the way of a road, which it is necessary to destroy, its value must be paid by the corporation, and the jury in estimating its value will take into consideration, not the value of the materials composing the building, but the value of the building as such. Should any of the dibria remaining on its removal or destruction be appropri- ated by the owner of the land, to the ex- tent of its value will the claim of the owner be less. Lafayette, &c. R. R. Co. V. Winslow, 66 111. 219. Under statutes giving damages for lands injuriously af- fected, damages should be assessed for con- sequential injuries. Thus, a land-owner, whose property was not taken, used, or dii'eotly interfered with by the railway SEC. 269.] MEAStJEB OP DAMAGES : GENERAL KULE. 1057 value of the whole' lot before the railway was constructed, is the amount of damage to which the land-owner is entitled.^ An appraisement of lands taken by an incorporated coiiipany of any kind should include prospective damages resulting naturally and directly from the works of the company for all future time;^ and railroad commissioners, and the jury on appeal, when appraising the damages, should take into consideration and appi'aise all which are direct and consequential, present and prospective, certain and con- tingent, which may be judged by them fairly to result to the land- owner from the construction of a railroad in a suitable and prudent manner. But for all such damages as result from an improper and unsuitable construction, the corporation must remain liable ; * and all company, gave the company notice of his claim for compensation by reason pf his property being " injuriously affected " by the execution of the works, whereby his goods were damaged by the dust and dirt, and customers were prevented fi'om com- ing to his shop, and required the company either to give a written agreement for payment of the amount claimed, or to issue a precept to the sherifil' to summon a jury for settling the compensation. The company filed a bill against the land- owner, alleging ttiat the property in ques- tion Vfas not "injuriously affected" within the meaning of said section, and praying an injunction to prevent the de- fendant from proceeding on his notice. WiGKAM, V. C, granted the injunction on the authority of The London and North ■Western By. Company v. Smith, 1 McN. & G. 216. lit was held, dissolving the in- junction, that the right to (jpmpensation was not confined to damage sustained by persons whose ' lands are taken, used, or directly interfered with, but extended to 'consequential damage ; that the proper jurisdiction to decide the question of damage and the quhmtum was the sher- iff's jury, and that there was no equity for this court to interfere. East & West India TDocks By. Co. v. Gattke, 15 Jur. 261. Consequential damages should be considered where they are the direct and immediate result of the taking. Thus, where a malt-house was destroyed, it was held that its effect upon the business with which it was connected should be con- sidered, but that if it could be removed to the brewery lot and be as valuable thereto as before, the measure of recovery should be the expense of removal and the value of the time lost in effecting it. Han- nibal Bridge Co. v. Schaubacher, 57 Mo. 582. 1 Henderson v. N. Y. Central R. R. Co., 78 N. Y. 423 ; Baltimore, &c. R. R. Co. u. Lansing, 52 Ind. 229 ; Hoffer ». Penn. Canal Co., 87 Penn. St. 221 | Powers V. Hazleton, &c. R. B. Co., 3,3 Ohio St. 429 ; Hairison v. Young, 9 Ga. 359 ; Scott v. St. Paul, &c. B. B. Co., 21 Minn. 323. Where a railway is wrong- fully constructed upon lands, and not abandoned to the' land-owner, it cannot be treated as a part of the realty for the purpose of increasing the land damages upon subsequent proceedings to condemn the land. Toledo, Ann Arbor, &c. E. E.. Co. V. I Dunlap, 47 Mich. 456. See also Justice V. Nesquehoning Valley E. E. Co., 87 Penn. St. 28. And no deduction should be made for the value of the rails, ties, &c., unless they increase the value of the land. Schroeder v. DeGraff, 28 Minn. 290. It is erroneous to charge a jury " to con- sider what the value of the fafin would be if the railroad was not on it, but if it was in the immediate neighborhood." Morin V. St. Paul, Minneapolis, &c.,E. E. Co., SO Minn. 100. A railway company has no right to cut ice from its right of way. The ice belongs to the owner of the fee. Julien V. Woodsmall, 82 Ind. 568. * Trenton Water Power Co. v. Cham- bers, 2 Beasl. 199. 8 Deirbom i>. Boston & Montreal E. R. 1058 EMINENT DOMAIN. [CHAP. XTV, the land appropriated, as well as all improvements destroyed,, de- ducting therefrom the benefits and advantages derived from the road, and the additional value given by it to the property, should be al- lowed.' The market value of land taken should be the measure of the damages, to which should be added all actiml damages which must he produced ly the manner in which the road passes through the property, and affects the improvements. Contingent future disadvan- tages, though they may be set off against advantages,, should not be taken into consideration as an element of damages.^ In general, appraisers are not to allow speculative, or consequential damages, but are confined to an estimate of the value of the land taken.^ If the construction of the road will operate to drain springs or wells upon the owner's land, this is a matter to be considered.* The value of timber upon the land taken may be given, but the es- timate should not include timber upon adjacent land, cut down and destroyed by the company.^ Nor does this principle carry with it an exemption from liability for diverting a stream of water from its natural course, to the injury of a neighboring proprietor, — especially where such damage is occasioned by a negligent construction of the road;^ and cfonsequential damages may be claimed and assessed against a corporation if their organic law requires it. Thus, where it was provided in the charter of a bridge company that referees should assess the damages, " if any," which the owner of a contig^ uous ferry should sustain by the erection of the bridge, it was held Co., 24 N. H. 179; Van Schoiok v. Del. & * Peoria & R, I. R. R. Co. «. Bryant, Raiitan Canal Co., 20 N. J. L. 249. 67 111. 473. And it will be preiiumed that 1 Plank- Road Co. v. Thomas, 20 Penn. such damages were considered. Thus, the St. 91. plaintiff' 's buildings were supplied with 2 Searle v. I/ackawanna & Bloomsburgh water from a permanent spring. After an E. R. Co., 33 Penn. St. 57. excavation had been made on his land for ' Meacham v. Fitohburg 1^. R. Co., 4 the purposes of a railroad, water appeared Cush. (Mass.) 291; Upton v. South Read- in the excavation, about fifteen feet below ing Branch R. R. Co., 8 Cush. (Mass.) the surface of the ground, and the spring 600 ; Greenville & C. R. R. Co. ■«. Partlow, disappeared. Damages were assessed to 5 Rich. (S. C.) fi28 ; White v. Charlottes- him before the excavation was made. ' It ville & S. C. R. R. Co., 6 Rich. 47; A. & was held that the injury to the spring must S. R. R. Co. V. Carpenter, 14 111. 190; be presumed to have been considered by Symonds n. City of Cincinnati, 14 Ohio, the commissioners, and that an action to 147; Brown v. Cincinnati, 14 id. 541; Mo- recover damages theiefor could not be sus- Intire v. State, 5 Blackf. (Ind. ) 384; State tained. Aldrich v. Cheshire R. R. Co., 21 V. Digby, 5 id.' 543; James River & Kana- N. H. 359. wha Co. 1). Turner, 9 Leigh (Va.), 318; » Oregon & California R. R. Co. v. Schuylkill Co. v. Thobnm, 7 S. & R. Barlow, 8 Oreg. 311. (Penn.) 411; Henry v. Pittsburgh & AUe- ' Hatch v. Vermont Central R. R, Co., ghany Bridge Co., 8 W. & 8. (Penn.) 85. 25 Vt. 49. SEC. 259.] MEASURE OF DAMAGES: GENERAL KULB. 1059 that the words of the act required the payment of damages for all injurious consequences, proximate and remote> to the owner of the ferry .^ So consequential damages to existing worvks by the erection 1 Buckwalteri?. Black Rook Bridge Co., 38 Penn. St. 281. In Carman i). Steuben- vUle, &c. R. R. Co., i Ohio St. 399, it is held that "throwing fragments of rock, by blasting, upon the land of adjoining pro- prietors is an actionable, injury ; and as in this case it was done by the contractor in the performance of his contract, in the manner stipulated, the company were held liable. The result of the cases seems to be, that where the damage done, by blasting rocks, or in any similar mode, in the course of the construction of a railway, is done to land a portion of which is taken by the company under compulsory powers, the damage will not lay the foundation of an action, in any form, as it should be taken into account in estimating the compensa- tion to the land-owner for the portion of land taken. Blown v. ProT. & Bristol R. R. Co., 5 Gray (Mass.), 35. And if not included in the appraisal, it is nevertheless baiTed. Dodge v. County Conim'rs, 3 Met. (Mass.) 380; Dearborn v. Boston, &c. • R. R.' Co., 24 N. H. 179 ; Whitehouse u Androscoggin R. R. Co., 52, Me. 208 ; Sabin«. Vt. Central R. R. Co., 25 Vt. 363. JSut if the damage is done to land no part of which is. taken, and where no land of the same owner is taken, it may be recovered, under the statute, if provision is made for giving compensation for consequential dam- age, or where lands are "injuriously af- fected." But if the statute contain no such provision, the only remedy will be by a general action. And in this view many of the eases cited above seem to assume, that blasting rocks, by an ordinary pro- prietor of land, is a nuisance to adjoining proprietors if so conducted as to, do them serious damage. Cannan v. Steubenville, &o. R. R. Co., ante. But if a railway is not liable for necessary consequential dam- age, unless the statute gives a remedy, it may be questioned how far a recovery could be maintained, in a general action for dam- age done by blasting rocks, as that is con- fessedly within the range of their powers. Shaw, C. J., in Dodge «. County Comm'rs, 3 Met. (Mass.) 380, says: "An authority to construct any public work carries with it an authority to use the appropriate means. An authority to make a railway is an authority to reduce the line of the road to a level, and for that purpose to . make cuts, as well through ledges of rock as through banks of earth. In a remote and detached place, where due precaution can be taken to prevent danger to persons, blasting by gunpowder is a reasonable and appropriate mode of executing such a work, and, if due precautions are taken to prevent unnecessary damage, is a justifiable mode. It follows that the necessary damage oc- casioned thereby to a dwelling-houge or other building, which cannot be removed out of the way of such danger, is one of the natural and unavoidable consequences of executing the work, and within the pro- visions of the statute. Of course, this reasoning will not apply to damages occa- sioned by carelessness or negligence in ex- ecuting such a work. Such careless or negligent act would be a tort, for which an action' at law would lie against him who commits, or him who commands it. But where all due precautions are taken, and damage is still necessarily done to fixed property, it is alike within the letter and the equity of the statute, and the county commissioners have authority to assess the damages. This court are therefore of opin- ion that an alternative writ of mandamus be awarded to the county commissioners, to assess the petitioners' damages, or return their reasons for not doing so." See also Pottstown Gas Co. v. Murphy, 39 Penn. St. 257 ; Whitehouse v. Androscoggin R. R. Co., ante. In the latter case it was held that the damage resulting to the land- Owner, for not removing the stone thrown upon land adjoining that taken, could not be taken into account in estimating dam-' ages, since it was presumable the company would remove them in proper time, accord- ing to their duty ; and, if they did not, the remedy would be by special action. Damages for the use of adjoining land as a cart-way may be recovered where six rods were allowed to be taken by the com- 1060 EMINENT DOMAIN. [chap. XIV. of new ones are required^ to be compensated, and the period for esti- mation is limited to the yearly value of the works antecedent to the pany throughout the line of the rond, which would give ample space for cart- ways upon the land talten. Sabin v. Vt. Central E. K. Co., 25 Vt. 368. But it was held, in a Pennsylvania case, that the company were not liable for entering upon the adjoining lands, and occupying the same vyith temporary dwellings, stables, and blacksmith shops, providnJ no more was taken than was necessary for that pur- pose. Lauderbrun v. Duify, 2 Penn. St. 398. But it is questionable whether this case can he maintained as a general rule. But if (I party is entitled to compensation for injuries of this kind, as where his lands adjoining the railway, and no part of which is taken, are injuriously affected, as by blasting rocks, his only remedy is under the statute. Dodge v. County Comm'rs, 8 Met. (Mass.) 880. So the appraisal of damages is a bar to claims for injuries by fire, from the engines obstructing access to buildings, exposing , persons or cattle to injury, and many such risks. Phila. & Beading E. E. Co. ■». Yeiser, 8 Penn. St. 366 ; Aldrich v. Cheshire E. E. Co., 21 N. H. .S50; Mason v. Kennebec, &c. R, U. Co., 31 Me. 215; Furnissv. Hudson Eiver E. E. Co., 5 Sand. (N. Y.) 561; Huyett If. Phil. & Read.,E. R. Co., 28 Pepn. St. 878 ; Lafayette Plank-Road Co. v. New Albany, &c. R. E. Co., 13 Ind. 90. And it will make no difference, that the dam- ages were not known to the appraisers, or capable of anticipation at the time of as- sessing land damages. Aldrich t). Cheshire R. R. Co., cmte. But see Lawrence v. Great Northern Ry. Co., 16 Q. B. 648. As where a spring of water is cut offHjy an excavation for the bed of a railway fifteen "feet below the surface, from which the plaintiff 's buildings had been supplied with water. So, also, where the company's works cut off a spring of water, below high-water mark, on a navigable river, it was held the riparian owner was entitled to claim damages of them on that account, in a proceeding under the statute. Lehigh Valley R. R, Co. v. Trone, 28 Penn. St. 206. But where, in the construction of a canal, with waste weirs, erected by dii'eo- tion, and under the inspection of the com- missioners appointed to designate the route of the canal, with all the works connected therewith, and to appraise daihoges, the waste water, aj'ter flowing over the land of adjoining proprietors, llowed upon the land of the plaintiff, and thernby greatly injured it, it was held that he was entitled to re- cover damages. Hooker v. New Haven, &c. K. E, Co., 14 Conn. 146. But in such case, the owner of property overflowed by water, through the defective construction of a railway, is bound to use reasonable care, skill, and diligence, adapted to the occasion, to arrest the injuiy, and if he do not, notwithstanding the first fault was on the part of the company, he must be re- garded as himself the cause of all damage, which he might have prevented by the use of such care, diligence, and skill. Chase V. N. Y. Central R. R. Co., 24 Barb. (N. Y.) 2"8. The same rule was adopted by a special referee, in Lemmex v. Vt. Central E. B, Co., in regard to damage to wool, by being exposed to rain at one of the comjittny's stations through the fault of the agents of the company, where the owner did not remove it as soon after he. obtained knowledge of its condition, or take as effective measures to arrest the in- jury, as he reasonably should have done. It was held the company were only liable for such damage as necessarily resulted from their own fault, and beyond that the plaintiff must be logardcd as the cause of his own loss. The assessment of compen- sation for land tiiken for a railway covers all damages, whether foreseen or not, and whether actually estimated or not, which result from the proper oohstructinn of the road. But the company are liable' to an action for damages resulting to any one from the defective construction of their road. In the present case the plaintiff's meadows were injured in consequence of the insufficient culverts in the defendant's road, there being no impediment to the construction of proper onesi Suitable bridges and culverts to convey tlie water across the railway, at or near the places where it naturally (lows, are necessary to the proper construction of the rond, except where they cannot be made, or where the SEC. 259.] MBASTTRB OF DAMAGES : GENERAL RULE. 1061 passing of the act.^ The damages should be estimated by taking the marketable value of the premises affected by the improvement, before the company enter, and from that deducting their value, under all the circumstances of the case, after the improvement is completed.^ The commissioners are to determine the compensation to be made to the owner for the land " proposed to be taken," and " appraised by them," and not the damages that will be occasioned ,by the construc- tion and operation of the company's works over his premises. The true and only inquiry is, what is the whole property affected worth noio in the market, and what will it he worth after the improvement is expense of 1 making them is gieatly dispro- as an answer to a claim for damages on portionate to the interests to be preserved by them. Johnson o. At. & St. Law. R. R. Co., 35 N. H. 569. But the occa- sional flow of land by water caused by public woi'ks is to be estimated as part of the damages under the English statute. Ware v. Regent's Canal Co., 3 De G. & J.' 212. Aijd where the appraisal of land damages is reduced below what it other- wise would have been, by the representa- . tions of the agents' of the company that the road would be constructed in a parti-^ cular manner, made at the time of the ap- praisal to the commissioners, and" which representations are not fulfilled in the actual construction of the road, whereby the plaintiff sustained serious loss and in- jury, it was held, that the adjudication of the commissioners was a merger of all previous negotiations upon the subject, and that no action could be maintained for constructing the railway contrary to such repre-sentations, provided it was done in a prudent and proper manner. Butman V. Vt. Central R. E. Co., 27 Vt. 500 ; Railway Co. v. Washington, 1 Rob. 67 ; Baltimore, &c. R. R. Co. v. Compton, 2 Gill (Md. ), 20 ; Kyle v. Auburn, &c. R. R. Co., 2 Barb. Ch. (N. Y.) 489. But. see Wheeler v. Eooh. &c. R. B. Co., 12 Barb. (N. Y.) 227, where it is held that a railway company will be enjoined from building a road-crossing at a ditterent place from that named at the time dam- ages were assessed. , But it has been 'held that it was competent for the company to show, by experts, the necessity o{ imttihg a, culvert through an embankment at a par- ticular point, in order to preserve the work, account of the prospective obstruction of the water, and setting it back upon the land at that point by the embankment. But it should be shown that such culvert is absolutely indispensable, before any de- duction can be made on that account, un- less the company are in some legal way bound to make it. The company are not estopped from proving this necessity be- cause the plat of the location of the road does not indicate a culvert at that point. Nason v. Woonsocket Union E. R. Co., 4 R. I. 377. But where no part of the plaintiff's land is taken, and the statute gives all parties suffering damage by the construction of railways the right to re- cover, as in England, and some of the States of this country, and the water is drawn off from the plaintiff's well upon lands adjoining the railway, he may re- cover. Parker v. Boston & Maine R. R. Co., 3 Cush. (Mass.) 107. So, too, may the proprietor of a mill-pond recover dam- ages sustained by the construction of a railway across the same, although the dam was authorized by the legislature, upon a navigable' river, and in constnicting it, the conditions of the act were not com- plied with. White v. South Shore E. R. Co., 6 Cush. (Mass.) 412. 1 Manning v. Commissioner of Compen-' sation, &c., 9 East, 165. , But future dam- ages expected to accrue to land-owners cannot be estimated properly until after the completion of the works. Lee v. Mil- ner, 2 M. & W. 824. 2 Henry v. Dubuque & Pacific E. R. Co., 2 Clarke, 288; Pennsylvania Eailroad V. Heister, 8 Penn. St. 445. 1062 EMINENT DOMAIN; [OHAP. XIV. madefy The difference between what the whole property would have sold for unaffected by the railroad, and what it would have sold for as affected by it is the true measure ©f damages ; ^ but the ♦fact that others have been brought by the construction and exten- si6n of the road into competition with the plaintiff, cannot be con- strued as a ground of damage.* In estimating the disadvantages resulting from such road, consequential or speculative damages are to be rejected ; and in estimating the advantages, such only as are special and peculiar to the property in question are to be considered, and not such as are common to the public* The value of the land taken for a railroad means its actual value, independent of the loca- tion of the road ; and the "' disadvantages " to be considered in assess- ing damages for such appropriation are the injuries to the part which is left arising from the taking.^ The object of an appraisal is to make the owner of the land good, by rendering an equivalent in money for the loss he sustains in the value of his property by being deprived of- a portion of it. Compensation includes, not only the value of the portion taken, but also the diminution of the value of that from which it is sevfered.' The present value of the lands, not at a' forced sale, but at a sale . which a prudent holder would make, if he had the povKr of election as to time and terms, is to govern. It is also proper to regard the loca- tion of the land, and the probabilities which a prudent man would entertain of the increased value of the property for building purposes.'^ The question, however, is not, what estimate does the owner place upon the land ? but, what is its real worth, in tJu judgment of honest, competent, and disinterested m.en? The use to which the owner has applied his property is of no importance, beyond its in- fluence upon the present value. In deciding these questions,, neither the purpose to which the property is now applied, nor the intention of the owner in relation to its future enjoyment, can be matters of much importance. In both cases, the proper inquiry is, what is the value of the property for the most advantageous uses to which it may be applied ? If a man suffer his land to lie open and unim- 1 Troy & Boston R. E. Co. ii.'Lae, 18 * Hornstein v. Atlantic & Great 'West- Barb. (N. Y.) 169: Cananaaigua& Niagara em R. E. Co., 61 Penn. St. 87. Falls B. R. Co. v. Payne, 16 id. 278. » Pacific R. R. Co. v. Chrystal, 25 Mo. ^ Watson V. Pittsburgh & Connellsrille 644. E. E. Co. , 37 Penn. St. 469. « EocWter & Syracuse E. E. Co. v. ' Harvey v. Lackawanna & Blooms- Budlong, 6 How. Pr. (N. Y.) 467. burgh ]^. K. Co., 47 Penn. St„ 428. ' SomervUle & Easton E. R. Co. v. Doughty, 22 N. J. L. 495. SEC. 259.J MEASURE OF DAMAGES : GENERAL RULE. 1063 proved, that will mot authorize the commissioners to say that it is worthless. , They must award what the land would be worth in the hands of another who would cultivate and improve it ; that is its value to the owner, because he can procure that sum of mopey for it. And in estimating the probable influence of any public iihprove- ment upon the value of land, the commissioners should not regard so much the intention of the owner in relation to the future^'use, as the purpose to which the property may be applied in the hands of one who is disposed to make it yield the greatest income. What price will it bring in the market, is the proper inquiry in a pro- ceeding of this kind.^ The true rule is, to appraise- the property at its present value to the owner, considering the extent of interest -which he has, and the qualified rights which may be exercised over it. In the case of a churchyard, if the church cannot use it for any purpose but burial, for such purpose one part of the ground is as valuable as another, and the part taken cannot be considered of more value than the part assessed for benefit;'^ So where a part of lands used by a hospital was taken, the fact that the improvement did not render the remaining property mpre valuable to the society, or for any purpose of the institution, than before, is not to be regarded. The particular use to which the property was then applied is not to be considered, except where, a? in the case of churches and ceme- teries, the land can be put to no other use.^ In the case of damages done to mill-property by the construction of the road, the injury to the tmused and surplus water-power of the mill-owner is a legal' ground of claim ; and the measure of damages is its actual market value for any useful purpose, to drive any hind of machinery which it was capable of driving, not what can le done with it if used in some supposed way, or other imagined improvements have been made.^ The owner of land a part of which is flowed by means of a mill-dam erected by a manufacturing company jnay, by reason of the situation of the part flowed in relation to the other part, sustaiii damages beyond the value of the land actually flowed, for which he is entitled to compensation. ' But the benefits likely to result from the building of the dam by reason of an increase of business and 1 Matter of Furman Street, 17 'Wend. ^ Matter of Albany Street, 11 Wend. (KT. y.) 650, 670 ; Matter of William and (N. Y. ) 149. Anthony Streets, 19 id. 678, 690 ; Troy & » Matter of William and Anthony Boston R. R. Co. v. Lee, 13 Barb. (N. Y.) Streets, 19 Wend. (N. Y.) 678. 169. * Dorian v. East Brandywine, &o. E. R. Co., 46 Penn. St. 620. 1064 EMINENT DOMAI|I. [CHAP. 21 V. population, markets, schools, stores, ,and other like improvements, cannot be considered by way of set-off to the damages done to the land flowed. The benefits to be set off must obviously be of the like kind with the opposite injuries for which damages are sought. In assessing the > damages occasioned by such erections, regard is to be had, not to the condition of the land as it may have been affected by maintaining the dam several years preceding the date of the complaint for assessment, but to the condition of the land at the commencement of the injury, as if no dam had been erected.^ In arriving at the market value* of the land, it is not proper to show what a person would give for the land rather than to be turned out,2 nor what it is worth to the owner, but, what is its just value to a person who desires to purchase, and is willing to pay itsiuU val- ue.^ The price paid at a forced sale, or at a sale where there was no competition in the bidding,* does not afford the true criterion. The purposes for which the land is used and its adaptability for that purpose, whether as a dwelling, a farm, or for manufacturing pur- poses, are all to bp considered, If the land is mining land, its value should be estimated with reference, to the minerals in it, and not with reference to the profits which the minerals would yield when taken out of the land.^ The price paid for the land may be shown, but is not the true criterion of value. The owner may show the circum- stances under which he bought it, the improvements he has put upon it, and all the elements that go to make up its real value.* If the grounds have been laid out with expensive walks, shrubs, fountains, or with fruit trees, etc., all these elements' are to be considered, and their destruction by the taking is to be allowed for at their fair and just value.^ The owner erf land taken by a railroad company is entitled to re- cover the value of such interest or title in the land as he is shown to have, as it stood at the time of tqjking, without any diminution for any benefits, advantage, or offset whatever ; such damages as result im- 1 Palmer Company u. Ferrill, 17 Pick, ard i). Providence, 6 R. I. 5U; Fall Eivcr (Mass.) 68. ' Iron Works v. Fall River, 110 Mass. 428. 2 Lawrence ». Boston, 119 Mass. 126; ' Searle ii. Lackawanna, &c. R. R. Co., Robb V. Maysville T. Co., 8 Met. (Ky.) 83 Penn. St. 67. 117; Tufts w. Charlestown, 4 Gray (Mass.), •> Swan v. Middlesex, 101 Mass. 178; 537. Diokerson v. Fitchburg, 13 Gray (Mass.), ' Memphis i>. Bolton, 9 Heisk, (Tenn. ) 646; Sexton v. New Bridgewater, 116 508; Lawrence v. Boston, ante. Mass. 200. * Cobb», Boston, 112 Mass. 181; How- . ' Chambers v. Cincinnati, &e. R. R. Co., 10 Am. k Eng. B. R. Cas. 376. SEC. 259.] MEASURE OF DAMAGES : GENERAL RULE. 1065 mediately and directly, — as, the destruction of wells, springs, barns, outhouses, etc., — but not remote or speculative damages ; the value of fences made necessary ; the injury to his whole tract from the less convenient communication, etc. But against these special and pe- culiar damages may be set off any peculiar benefits resulting to his premises, beyond those enjoyed by all the neighbors.^ The value of the property taken, in market at that time and no other, and the injury then necessarily known to result to the owner as the necessary and immediate consequence of such use of his prop- erty, without reference to the uncertain or remote benefits or disad- vantages that may or may not occur in the future, is what the owner loses, and the legislature has no power to prescribe a different meas-, ure of damages ; ^ and its value at the time of the trial, or at any time subsequent to the construction of the work, cannot be referred to in determining the benefits conferred upon that portion of the land not taken.^ Interest is to be allowed the land-owner from the time of the tak- ing. Thus, if a railroad corporation, by its location, takes land, interest is to be allowed from the time of the taking ; and the fact that there has been a delay for many years in bringing a petition for damages, seasonably filed, to a hearing, is immaterial.* Where an appeal is taken, and the railroad company has paid the money into court, and takes possession of the land, if the assessment is set aside, the land-owner upon a new assessment may recover in- terest on the sum at which the damages are assessed from the time when the company took possession.^ Where a person's business is not destroyed by the laying out of the road, as would be the case where a brickyard, quarry, etc., is taken, but he is only driven to another locality to prosecute it, he is not to be allowed damages as for the destruction of his business, but only the expense of re-estab- lishing it elsewhere. Thus, in a New York case,^ the plaintiff's business was that of raising and training blooded horses, and he had 1 Bobbins v. Milwaukee & Horicon Mass. 571 ; Hartshorn v. B., C. R. & N. K. R. Co., 6 Wis. 636. But see Milwaukee E. E.. Co., 52 Iowa", 613, & Mississippi E,. R. Co. v. Eble, 4 Chand. 5 Atlantic, &c. E. R. Co. v. Koblentz, (Wis.) 72. 21 Ohio St. 334 ; Rhys v. Valley Ey. Co., 2 Isom ». Mississippi Central E. R. Co., L. E. 19 Eq. 93; Warren v. St. Psiul, &c. 36 Miss. 3P0 ; Giesy v. Cincinnati, &c. E. E. Co., 21 Minn. 424. R. R. Co., 4 Ohio St. 308. 6 New York, Lackawanna, &c. R. R. 8 Indiana Central R. R. Co. v. Hunter, Co. in re, 29 Hun. (N. Y.), 1. See also 8 Ind. 74. Woodhaven & Eockaway E. E. Co. im, re, * Drury v. Midland E. K. Co., 127 21 Hun (N. Y.), 250. VOL. II. — 17 1066 EMINENT DOMAIN. [OHAP. XTV. also a race-track on his farm. A railway company took land for its railway through the track, and destroyed it for that purpose. Dam- ages were assessed as though his entire business had heen destroyed. The court held that the damages should have been restricted to the cost of a new track. Land was taken for a railroad running along a navigable river, and the approach of the owner to the river from his land, which he used for a brickyard, was thereby obstructed. Commissioners awarded as land damages a sum far in excess of the cost of restoring communication with the river, by means of a tram- way, etc. It was held that the award should be set aside as exces- sive, the measure of damages allowable being the expense of restoring communication with the river.^ Where a person grants to a railroad company a right of way through his land, he can recover damages resulting from a want of due care and skill in constructing the road, but not damages resulting from a depreciation of the value of his other land because of the road, or for the use of the right of way, or for inconvenience occasioned to himself.^ Sec. 260. Blasting, Injuries from to be Assessed. — In the taking of lands for the construction of a railway, all such injuries as are likely to result from the building of the road in a proper manner are to be taken into account in the estimation of the damages ; and this includes injuries likely to result to buildings and the remainder of the estate by means of blasting, in a proper manner, a ledge of rocks through whicli the railroad passes.^ But the compensation awarded does not cover damages resulting from blasting conducted in an im- > Be New York, West Shore, &c. R. E. for right of way. A condemnation of land Co., 29 Hun (N.Y.), 646. In determining secured hy the trustees of the first mort- the amount of compensation due to one gage bondholders when the road was wholly whose land has heen appropriated -by a in, their possession, was held to be the act railroad company, not only the value of of the purchasers under the foreclosure of the land may be considered, but matters of said mortgage, who could not escape pay- special damage. Bowen v. Atlantic & ment of the damages assessed. Williams French Broad Valley R. R. Co., 17 S. C. v. New Orleans, Mobile, &c. R. R. Co., 60 574. Where a railroad company, with the Miss. 689. In assessing damages for the full knowledge of the owner, took and used taking of land for a railroad, the incon- land for a right of way without condemna- venience caused by cutting plaintiff's land tion, and subsequently secured the con- in two may be considered. Texas & Pacific demnation of that and an additional tract E. E. Co. v. Durrett, 67 Tex. 48. for depot purposes, but made no entry 2 Houston & E. T. E. E. Co. v. Adams, thereon, it was held that the owner was 58 Tex. 476. entitled to compensation for the land ac- ' Dodge v. County Commissioners, 3 tually taken, with election to take the Met. (Mass.) 380 ; Brown v. Providence present value, or the value at the time of E. E. Co., 5 Gray (Mass.), 35; White- entry, and the company could elect to take house v. Androscoggin R. R. Co., 62 Me. all the laud condemned, or only that used 208 ; St. Peters v. Denison, 68 N. Y. SEC. 261.J PRIVATE WATS. 1067 proper or negligent manner, nor from allowing the stones and rocks thrown upon the adjoining land, even by blasts properly conducted, to remain there for an unreasonable ^period ; and where large stones from blasts properly conducted were thrown upon the lands of the plaintiff, which sunk into the earth and made large holes in his meadow-land, and the company neglected to remove them and re- store the land to its proper condition, it was held that they were liable to the land-owner therefor ia an action on the case.^ Sec. 261. Private Ways. — Where the statute provides a remedy for injuries occasioned by railroads in obstructing highways, bridges, and private ways, by the construction of a railroad, it is held that a person cannot be regarded as having a private way through his own land independent of his right to the land; and where a railway company obstructed a pathway which the owner had made for his own use, it was held that the commissioners must have taken this into consideration, and that an independent action- for the injury could not be maintained.^ But where a person has a way by neces- sity across another's la,nd, his right thereto is independent of the land taken, and he may maintain an action for its obstruction.^ But in the absence of any such statute, it has been held that a person who has merely a private way over the land of another, used as a street, although never laid out as such whether by grant or prescrip- tion, cannot recover for the obstruction of the way by the construc- 416. See Carman v. Steubenville, &o. E. has the right, if he Chooses, to consider the Co., 4 Ohio St. 399. obstruction as a permanent taking and ap- 1 Sabini;. Vt. Cent. E. Co., 25 Vt. 363; propriation of the alley by the railroad Georgetown, &c. E. Co. v. Eagles, 9 Col. company, and may commence an action 544 ; 30 Am. & Eng. E. Cas. 228 ; Id. v. against the railroad company and recover Doyle, 9 Col. 540 ; 30 Am. & Eng. E. damages for such obstruction; and in such Cas. 231. case the measure of his damages will be 2 Clark ». Boston, &c. R. Co., 24 N. H. the injury to his lot at the time the alley 114 ; Cate v. Nutter, 24 id. 108. The right was taken and appropriated by the rail- of the owner of a lot in a town or city to road oompany^ and- not at the time of the the use of the adjoining street, is as much trial of the case. Central Branch, &c. E. property as the lot itself ; the owner of the Co. v. Andrews, 26 Kan. 702. Where a lot cannot be deprived of this right by the person had acquired a possessory title to obstruction of the street, without compen- land never opened to the puiblic as a street, sation. It is immaterial in such case it was held that a railway company con- whether the pwner of the lot owns to the structing a railway thereon so as to destroy middle of the street, or not. Lackland v. a public road leading to his quartz-mill, North Missouri E. Co., 31 Mo. 180. Where and materially 'damaging the accessibility a railroad company obstructs an alley in a to his dwelling-house, was liable therefor, city, by building a railroad track through Virginia, &c. E. Co. v. Lynde, 13 Nev. 92. the alley, so as afterwards to make the alley •' Kimball v. Cocheco R. Co.,. 27 N. H. useless as an alley, an abutting lot-owner 448. 1068 EMINENT DOMAIN. [chap. XIV. tion of a railway along or across it, because under such circumstances others are not precluded from acquiring a similar right over the same soil, and therefore the right is not a distinct right, but rathe^ in the nature of a public right.^ But where a person has a distinct right of way over the land of another, whether by grant or prescription, he is entitled to compensation for its destruction ; and it is quite difficult to understand why he is not entitled to compensation therefor, even though the way is used by others either with or without authority from the owner of the land. If the right of way exists by grant or prescription, it is a distinct right, and' the circumstance that others may have a similar right over the same way does not strip it of its character as an easement, or as property,* as it is one of the pecu- liarities of easements that a multitude of persons may have a dis- tinct property therein. Sec. 262. Damages Confined to the Particular Tract. — The dam- aged to be awarded are confined to injuries to the particular estate from which the land is taken, and cannot be extended to other lands of the owner entirely separate and distinct from that a part of which is taken.* But ordinarily the damages must be confined to the lot or 1 Boston & Worcester R. R. Co. v. Old Colony R. R. Co., 12 Cash. (Mass.) 605 ; Parker i). Boston, &o. R. R. Co., 8 Id. 157. Nor can one have a private right of way across his own land. Presbrey v. Old Colony, &c. R. R. Co., 103 Mass. 1. See holding that a person may have a dis- tijiot right of way in an alley, Kansas City, &a. R. R. Co. v. Farrell, 76 Mo. 188. 2 Kansas City, &c. R. R. Co. v. Far- rell, 76 Mo. 183i 8 Bangor, &o. E. R. Co. v. MoComb, 60 Me. 290 ; St. Louis, &c. R. R. Co. v. Brown, 68 111. 61 ; Fleming v. Chicago, &o. R. R. Co., 84 Iowa, 353. In N. Y. Central, &o. R. R. Co., .in re, 6 Hun QS. Y.), 146, the appellants owned several blocks of land in the city of New York, lying between Sixty-iifth and Sixty-sixth streets, intersected by Eleventh and Twelfth avenues. The block lying be- tween Eleventh and Twelfth avenues, a portion of which was taken by these pro- ceedings, was further divided by a strip of land used for respondent's railroad, no right of way over such atrip being possessed by the appellants. It was held (1), that no consequential damages to the block lying between Tenth and Eleventh ave- nues, or to that portion of the block be- tween Eleventh and Twelfth avenues which lay on the other side of the railroad track from the portion taken in these pro- ceedings, could be allowed ; (2), that the questions to be detennined by the commis- sioners were : 1. The value of the ground taken, in the estimate of which they might take into account its value for any use to which it might be appropriated. 2. The consequential damage, if any, to that portion of the land in the block between Eleventh and Twelfth avenues which lay on that side of the existing railroad track from which the land for the new route was taken by these proceedings. Twelfth avenue, which belonged to the city, though not actually opened, was held to constitute a boundary of a distinct parcel. In such proceedings, it is proper for the party whose land is taken to show the purpose for which the land had been purchased, and how far the taking of a portion of such land damages the residue for such purpose. Sherwood v. St. Paul, &o. Co., 21 Minn. 127 ; Minnesota Valley R. R. Co. V, Doran, 16 Minn. 280 ; St. Paul, SEO. 262.] DAMAGES CONFINED TO PAETIOULAR TBACX. 1069 subdivision from which the land is taken, and injury to other lots, separated by streets and alleys, is not generally taken into considera- tion. The damages and benefits should be considered in relation to the entire tract, and not to a limited strip immediately adjoining the railroad or improvement.^ Damages to lands of the same owner, at a considerable -distance, caused by injuring a franchise out of the land^ cannot be added to damages to land actually taken.^ The damages to separate tracts are to be considered separately.* If, how- ever, more t^ian one lot or block is occupied in one business, as in that of a brewery, with necessary buildings on each side of an alley, the damages to the entire property must be' paid, and not only the damages to the lot from which the strip of land is taken. But if the fixtures, engines, and appliances could be transferred to the other side of the alley, and placed in such a situation that the brewery could have been just as effectively operated as it was before, thien the actual loss to the owners would have been the trouble and ex- pense of making the removal, together with compensation for the use of the brewery for whatever time it would have been necessarily idle whilst the change a;nd transfer were being made.* Again, if the' several lots are used as one property, as a lumber-yard and saw-mill, and all the blocks are necessary to the enjoyment of the mill-prop- erty, damages may be allowed to the whole tract, for taking away and separating necessary portions of the establishment, although the lots may be separated from each other by a public street.^ The same doctrine has been applied to the case of a brickyard, where ^ the different lot's were used together, and where the owners were prevented from enlarging hy proximity to the railroad.^ The fact that a tract had been laid out into city-lots, but not used as such, &c. E. R. Co. V. Matthews, 16 Minn, sidered. New York, West Shore, &c. 341. E. R. Co. «. Le Feare, 27 Hun (N. Y.), 1 Page V. Chicago, &o. R. R. Co., 70 537. 111. 324; Robbins I). Milwaukee, &c. R. R. 2 Fuller v. Edings, 11 Rieh. (S. C.) Co., 6 Wis. 636. In New York, &o. R. R. L. 239. Co., inn, 27 Hun (N. Y.), 153, where » St. Louis, &o. E. E. Co. o. Brown, 58 the land had been divided into building 111. 61. lots, although never used for any other * Hannibal Bridge Go. ■». Sohaubacher, purpose than pasturage, it was held that 57 Mo. 582. the depreciation in the value of the lots ^ Chapman v. Oshkosh, &c. E. R. Co., through which the road did not pass could 33 Wis. 629. Gmtra (in a case altnost not be taken into account. But in an^ exactly similar), Fleming v. Chicago, &c. action for damages where the land was all E. R. Co., 34 Iowa, 353. used as a part of the same tract, although ^ Sherwood v. St. Paul, &c. R. E. Co., separated by a highway, it was held that 21 Minn. 127 ; s. c. 21 Minn. 122. damages to the whole tract should be con- 1070 EMINENT DOMAIN. [OHAP. XIV. will not prevent the consideration of the damages to the entire tract. The court is not to consider the map, but the land as it stands, and the use to which it is applicable. The division into lots is accidental.^ Hence an eighty-acre tract, separated from the rest of a farm by a public road, may be considered as a part of the farm, if actually sola fact.* The tract is to be a compact tract, and not two farms separated by a high bluff and distant from each other, through only one of which the railroad passed.^ When the blocks and tracts are not used together, no damages can be allowed for blocks separated by streets from the block in which the land is taken ; and if a strip is taken adjoining an existing railroad, there will be no damages for land on the other side of the existing rail- road.* The question cannot arise in con'sidering damages to vacant and unoccupied land.* Where the company institutes proceedings, and describes the land in its petition, the damages are to be confined to the land mentioned in the petition, unless the owner, by cross- bill, shows that he owns contiguous land which will be damaged.* Sec. 263. Measure of Compensation for Property of one Corpora- tion taken for its Use by another. — The proper rule of valuation of property of one corporation taken for the use of another, is held not to be what the. property is worth to the first corporation for its uses, but what it is worth for general purposes, — what is its value in the market.^ The same principles prevail in this respect as prevail in reference to compensation to individuals for the taking of their property,® and merely speculative or conjectural damages should not be allowed. Thus, in taking a part of a turnpike road, the fact that the railway will diminish the business of a turnpike is not to be considered ; ^ nor where one railway crosses another are 1 Welch V. Milwaukee, &o. R. E. Co., ' Goodin v. Cincinnati Canal Co., 18 27 Wis. 108 ; Driver ■». Western R. E. Ohio St. 169. In condemning a right of Co., 32 Wis. 569. way across another railroad, the company 2 St. Paul, &c. R. R. Co. v. Murphy, whose road is crossed is entitled to damages 19 Minn. 500, ^ sufficient to put and keep its embankments' ' Minnesota, &c. R. R. Co. v. Doran, and track in as safe a condition as hefore. 15 Minn. 230. St. Louis, Jaoksonrille, &c. R. R. Co. v. * Matter of New York Central R. R. Springfield, &c. R. R. Co., 96 111. 274. Co., 6 Hun (N. Y.), 146. 8 Fitohburg R. R. Co. v. Bcston & » Walker u Old Colony R. R. Co., 103 Maine R. R. Co. 3 Cush. (Mass.) 58; iMass. 10 ; Presbrey v. Old Colony E. E. Boston & Worcester R. R. Co. v. Old Co., 103 Mass. 1. Colony E. R. Co., 3 Allen (Mass.), 142. « Jones V. Chicago, &o. R. E. Co., 68 » Troy & Boston R. R. Co. v. North- 111. 380 J Mix v. Lafayette, &c. E. E. Co., em T. Co., 16 Barb. (N. Y.) 100. 67 111. 319 ; Mill's Em. Dom. § 167. SEC. 263.] MEASURE OF COMPENSATION, ETC. 1071 damages to be given on account of a statutory requirement to stop trains at Such crossings, and the consequent impairment of the hauling capacity of the engines.^ Nor are damages to be given for 'the delay, inconvenience, trouble, and danger resulting from such crossing.^ But in estimating the compensation in such cases, the damages are not to be restricted to such as arise from the mere physical injury to the land, but should extend to all such loss, inconvenience, and damage as may be reasonably expected to result from the construc- tion and use of the crossing.^ In a recent case in Illinois where the second road condemned a right of way across the road of the first, passing under the track by cutting through its embankment, the court held that the compensation should be such a sum as would enable the first company to place its track over the crossing in as 1 Chicago, &o. E. Co. v. Joliet, &c. E. Co., 105 111. 388 ; 44 Am. Eep. 799 ; 14 Am. & Eng. E. Cas. 62. ■■i Peoria & Pelsin E. Co. i-. Peoria & F. E. Co., 105 111. 110 ; 10 Am. & Ehg. R. Cas. 129. In this ease the court went on to say : " The law requiring railroad trains to stop before crossing another railroad being a mere police regulation, and sub- 'ject to repeal at any time, the damages snstained by a railroad company for the delay, inconvenience, and trouble in stop- ping before crossing another road seeking a condemnation for right of way across the track of an existing railroad, are too vague, indefinite, and contingent to be an element in the assessment of damages in favor of the road to be so crossed. Nor is the in- creased danger, arising from the crossing of the track of one railroad by the trains of another, to be considered as an element of damage in such proceeding. To allow damages on such a claim would violate the rule that they cannot be allowed on mere conjecture, speculation, fancy, or imagination. They must be real, tan- gible, and proximate. Nor is this rule in conflict with what was said in a case before this codrt (Lake Shore, &c. R. Co. u. Chicago, &c. E. Co., 100 111. 21 ; 2 Am. & Eng. E. Cas. 454), in which it was held that only such injury and inconvenience as reduce the capacity of the corporation to transact its business, and necessarily result in damage and loss, are elements of damage. Direct and immediate damages alone are recoverable in this class of cases, and remote or ^merely ijiddental damages cannot be <:onsidered. It is that injury which depreciates the value of the prop- 1 erty, whether by taking a portion of it or rendering the portion left less useful, or in case of a railroad company or other corporate body, less capable of transacting its business, — such a hindrance and in- convenience as to occasion loss, or dimin- ish and limit its Capacity to transact its business by decreasing the power to transact as much, or necessarily increasing the ex- pense of what may be done, although not diminished ; and this hindrance must pro- duce immediate or future loss. If the new structure, when made, does not nec- essarily abridge the owner's capacity.withr out increased expense to transact an equal volume of business, then, although there may be inconvenience and annoyance, un- less the property is depreciated in value these are not elements of damages." See also Lake Shore, &o. E. Co. v. Cincinnati, .&c. R. Co., 30 Ohio St. 604 ; Boston, &o. E. Co. V. Old Colony E. Co., 3 Allen (Mass.), 142 ; Old Colony R. Co. d. Ply- mouth Co., 14 Gray (Mass.), 155 ; Mass- achusetts, &c. E. Co. V. Boston, &c. E. Co., 121 Mass. 124 ; Boston, &c. H. Co. V. Old Colony R. Co., 12 Cush. (Mass.) 605 ; Chicago, &c. R. Co. v. Joliet, &c. E., .105 111. 388. ' Lake Shore, &c. R. Co. v. Chicago, &e. E. Co., 100 111. 21 ; 2 Am. & Eng. E. Cas. 454 ; Chicago, &c. E. Co. v. Spring- field, &c. E. Co., 67 III. 147. 1072 EMINENT BOMAIN. [OHAP. XIV. safe condition, as nearly as practicable as it was originally ; that the damages should include the additional expense of a watchman when one was rendered necessary, also the expense of building and maintain- ing permanent abutments for retaining tlie walls ; losses incident to rebuilding or repairing, and contingent losses by fire or otherwise ; and if any other kind of bridge over the excavation is more safe than a wooden one, the compensation should be sufficient to enable the company to erect and maintain perpetually a bridge of that degree of safety, and likewise to reimburse it for all inconvenience and ex- pense incident to the erection and maintenance of such a bridge.^ In a proceeding by one railroad company against another for damages caused by taking the petitioner's land under legislative authority, it is not a proper consideration for enhancing the damages, that the petitioners own a railroad extending far into the interior, and are doing a large and profitable business, which would be incommoded, by the track and conveniences of the respondents. 13ut the fact of the proximity of the railroad communication with tide-waters and a harbor, and the consequent increased value of the property for any and all useful business purposes, are proper considerations in esti- mating the damages.^ The rule as to the measure of damages where , part of the road-bed of a railway is condemnfed for a highway crossing has been clearly stated by Chief- Justice Shaw, in a Massachusetts case,^ where he said ; " The petitioners (the railroad company) are entitled to recover damages for taking their land for the purposes of a highway, subject, however, to its use for a railroad ; for the expense of erecting and maintaining signs required by law at the crossing ; for making and maintaining cattle-guflrds at the crossing, if necessary ; and for the expense of flooring the crossing and keeping the planks in repair." * But increased liability to damage from accidents from collision and otherwise, the increased expense of ringing the bell and sounding the whistle at the crossing, etc., cannot be considered as an element of damage.^ Nor can evidence be introduced showing pay- ments by the company for accidents at their crossings.® The parties seeking to condemn the land cannot introduce evidence tendins to ' St. Louis, &o. R. Co. V. Sprins;fiel(l, * See also State ». Chicago, &c. R. Co , &c, R. Co., 96 111. 274 ; 2 Am. & Eng. R. 43 Minn. 524 ; 45 Am. & Eng. R. Gas. Cas. 488. 106. 2 Boston, &c. R. Co. v. Old Colony R. » Old Colony, &o. R. Co. v. Plymouth Co., 12 Cush. (Mass.) 605. County, 14 Gray (Mass.), 155. , 8 Old Colony, &o. R. Co. i>. Plymouth « Boston, &o. R. Co. v. Middlesex County, 14 Gray (Mass.), 155. County, 1 Allen (Mass.), 824. SEC. 264.J WHAT BENEFIT MAY BE ALLOWED. 1073 show the supposed future benefit to the company from a probable increase of business in consequence of the establishment of the new highway. 1 If the whole franchise and property of the corporation are taken, of course its true and just value must be given, — that is, its fair market value. Sec. 264. what Benefit may be allowed. — In a proceeding against a railroad compainy to recover damages done to land by the location- and construction of the road, where the statute directs the advan- tages as well ,as disadvantages of the road to be considered, it is competent for the company to prove that the land has increased ii* value by the construction of the road ; ^ and any direct and peculiar 1 Old Colony, &c. R. Co. v. Plj-mouth County, 14 Gray (Mass.), 155 ; Boston, &c. R. Co. V. Middlesex Co., 1 Julian (Mass.), 324; State v. Chicago, &o. E. Co., 43 Miun. 524 ; 45 Am. & Eng. R. Cas. 106. But in State v. Chicago, &o. R. Co., 43 Minn. 524 ; 45 Am. & Eng. ■Corp Cas. 106, it is held that the cost, of cattle-guards and wings and crossing signs is not to be allowed to the company as dam- ages for laying ovxt 4 highway across its tracks, though the cost of planking a crossing and gi-ading it are proper items to be considered in determining the com- pensation. See also State v. District Court, 42 Minn. 247 ; 42 Am. & Eng. R. Cas. 241. 2 Plank-Road Go. w. Rea, 20 Perin. St. 97 ; Guess v. Stone, &c. Co., 72 Ga. 320 ; 28 Am. & Eng. R. CasJ 236 ; Britton v. Des Moines, &c. R. Co., 59 Iowa, 540 ; 10 Am. & Eng. R. Cas. 412 ; Smith v. Combs, 78 Mo. 32; 20 Am. & Eng. R. Cas. 209 ; St. Louis, &c. R. Co. u. Kirby, 104 111. 345 ; 10 Am. & Eng. R. Cas. 214 . (genefal benefit to farm by making better market facilities cannot be considered) ; Pueblo, &c. R. Co. v. Rudd, 5 Col. 270 ; 10 Am. & Eng. R. Cas. 404 ; Grafton, &c. R Co. V. Foreman, 24 W. Va. 662 ; 20 . Am. & Eng. R. Cas. 216 ; Morin v. St. Paul, &o. R. Co., 30 Minn. 100; 10 R. Cas. 223. But benefits shared in common with all other property-owners along the line of improvement, such for example as im- proved market facilities, cannot be con- sidered. Chicago, &c. R. Co. v. Blake, 116 111. 163 ; 23 Am. & Eng. E. Cas. 97 ; Pittsburgh, &c. R. Co. v. McCloskey, 110 Pejin. St. 486 ; 23 Am. & Eng. R. Cas. 86. lu assessing compensation for a local incidental jnjury from the construction of a railroad, a local incidental benefit to the remainder of the land, arising' from the building of a railroad, but not con- nected with the subject-matter or local- ity of the injury, cannot be taken into account. In the case of compensation claimed for the building of a railroad be- tween a navigable river and coal mines, whereby the river transportation was in- jured or cut off, to reduce damages, the railroad company may show that the river transportation had lessened in value, by the facilities for transportation furnished by the railroad. Where the indirect evi- dence was that there were such coal mines between, and that such building would prevent coal being shipped on the river, the question on cross-examination, whether the facilities of coal transportation would be diminishedby such railroad,' was held legi- tilnate and' proper. In assessing damages for land taken by a railroad coinpany, the jury cannot legally take into consideration and make allowance for any such benefits as accrue to the community generally from the construction of the road. Little Miami Railroad Co. v. Collett, 6 Ohio St. 182. The defendant a.sked that the following instruction should be given to the jury " In ascertaining the extent of the injury to the plaintiffs, an estimate of the value of the property taken at the time of the taking is a necessary step ; but if the ben- efits resulting to the plaintiffs, by the con- 1074 EMINENT DOMAIN. [chap. XIV. benefit or increase of value accruing therefrom to land of the same owner adjoining or connected with the land taken, and forming part struction of the railroad, equal in pecuniary value the value of the property taken by the defendant, it is a just and legal compensation for the property so taken," It was held that the instruction should have been given ; but it is not proper to receive evidence of its value at the time of trial ; it is projter to prove what was its value at the time of the construction of /the road. Indiana Central R. Co. v. Hunter, 8 Ind. 74. If by the construc- tion of a railroad, a landholder is obliged to build additional fences, that fact is to be oansidered in estimating the land dam- ages. Evansville R. Go. v. Pitzpatrick, 10 Ind. 120 ; Same v. Stringer, Ind. 551. In assessing land damages, the jury are to disregard benefits which may be supposed to accrue to the land-owner, as drainage by the railroad ditches. Evansville, &c. R. Co. V. Fitzpatrick, 10 Ind. 120. Any direct and peculiar benefit or increase of value accruing therefrom to land of the same owner adjoining or connected with the land taken, and forming part of the same parcel or track, is to be considered by the jury and allowed by way of set-off ; but not any general benefit or increase of valne received by such land in common with other lands in the neighborhood, nor any benefit to other land of the same owner, though in the same town. The time at and from which the benefit accruing to the owner of land taken for a highway or rail- road is to be estimated, in assessing his damiiges for such taking, is that of the actual location. Meacham v. Fitchburg R. Co., 4 Gush. (Mass.) 291. When benefits are to be allowed for, from the damages incident to "the con- struction of the road," — the phrase, " the construction of the road," as nsed in the charter, does not mean the completion of the whole work, but the construction of that particular portion which runs through the party's land. Milwaukee, &o. K. Co. V. Eble, 4 Ghand. (Wis, ) 72 ; Vicksburg, &o. R. Co. V. Galderwood, 16 La. An. 481. And the commissioners or jury, in esti- mating the " benefit or advantage " to the owner, should take into consideration the speculative or salable increase in the value of the land attributable to the construc- tion of the road. The owner is to be assessed for any benefit, without excep- tion, that he may receive from the con- struction of the road. And in estimating the " loss or damage," the expense of fenc- ing along the line of the road, where it passes through fields, should be considered, and also the incidental depreciation of the value of the track by reason of the road pas- sing through it. Greenville, &o. R. Co. v. Partlow, 5 Rich. (S. C.) L. 428. Where damages to an estate by the construction of a railroad are under advisement by a jury, they are to take into consideration the injury to the lands not taken, to the owner's dwelling-house on the e6tate,the subjection of his family to danger, his buildings to risk of fire, the inconvenience caused by embankments and excavations, and deterioration' of his lands for agri- cultural purposes or for building-lots. It is not competent, in order to rebut the opinions of witnesses as to the value of land, to show that in other towns lands had been increased in value by the prox- imity of the road. SomervUle, &c. R. Co. V. Doughty, 2 N. J. L. 495. In Missouri the benefit derived which is to be taken into account is the direct and peculiar benefit resulting to the land in particular, not the general benefit accru- ing to it in common with other land which is enhanced in value by the building of the road. St. Louis, &o. R. Co. v. Rich- ardson, 45 Mo. 466. But in Alabama, where land is taken for public works, any increased value of the remaining lands of the owner, arising from the public works for whjch the lands are taken, cannot be considered in assessing the amount of compensation to be paid for the portion taken ; nor, in arriving at the amount of such compensation, can conjectural and speculative estimates as to possible advan- tages or disadvantages arising from the public works be taken into the account. Alabama, &c. R. Co. v. Burkett, 42 Ala. 88. SEC. 264. j "WHAT BENEFIT MAY BE ALLOWED. 1075 of the same parcel or tract, is to be considered by the jury and allowed by way of set-off ; but not any general, benefit or increase of value received by such land in common with other lands in the neighborhood, nor any benefit to other land of the same owner, though in the same town.^ The benefits must be the direct and 1 Meacham v. Fitchburg R. Co., 4 Cush. (Mass.) 291; Upton v. South Reading Branch R. Co., 8 Cush. (Mass.) 600 ; Chi- cago & Mexican Central R. Co. v. Ritter, (Tex. 1883) 10 Am. & Eng. R. R. Cases, 202 ; Philadeliihia & Erie R. Co. v. Cake, 95 Penn. St. 139. The incidental bene- fits to the owner which may be set oflf against his incidental damages, in esti- mating the damages to be paid, him for the taking of his land for railroad purposes, do not include the general advance in the value of land resulting from the construc- tion of the road. Railroad Co. v. McDon- ald, 12 Heisk. (Tenn.) 54. While the general advantage resulting as well to the public as to the property which is the sub- ject of assessment is not to Ije considered in estimating the benefits to that property, yet anything and everything connected with the general improvement which tends to increase its value or usefulness to such property may be considered. Pittsburgh & Lake Erie B. Co. /;. Robinson, 95 Penn. St. 426. That the plaintiffs refused to avail themselves of the advantages which may have been afforded them by the railway is of no moment; for the question is not as to the disijosition of the owners of the property, but whether or not the facilities afforded by the improvement have advanced the market value of the property. Pittsburgh & Lake Erie R. Co. ,K. Robinson, 95 Peun. St. 426. Lake, J., expresses the rule very clearly thus : "The owner of land taken for a railroad is entitled to recover, in any event, as one item of damage, the fair' value of the portion actually taken. Wagner v. Gage Co., 3 Neb. 237. And in addition to this, he should have allowed to him a reasonable compensation for whatever damage the evidence shows must necessarily be done to the residue of the track from the proper construction and future careful operation of the road. Where the evidence shows that the land- owner will be specially benefited by the location of the road, such benefit may go to reduce the damages to the residue of the land, but cannot be set off against the value of the part actually taken. But those beneiits which are common and shared in by others as well cannot be con- sidered to reduce his damages. But dam- ages from a supposed insufficiency of a culvert to the owner's remaining land in case of high water, and the possible de- struction of property by fire and otherwise through the carelessness of the company's agent in operating the road, are too uncer- tain and remote to be taken into the esti- mate; and valuations of the land based in part thereon are entitled to no weight with the jury. King v. Iowa Midland R. Co., 34 Iowa, 455 ; Lehigh Valley R. Co. v. Lazarus, 28 Penn. St. 203; Patten u. Northam, &c. R. Co., 33 Penn. St. 426 ; Fleming v. Cedar Rapids, &c. R. Co., 34 Iowa, 353. Damages to be paid by the company upon the condemnation do not cover those caused by injuries resulting from negligence or unskilfulness in either the construction or operation of the road. Delaware, Lack., & West. R. Co. v. Sal- mon, 40 N. J. L. 299. And even if they were in fact included in the assessment, their payment would be no bar to future actions brought for such injuries. The damages for which the law provides, and proper to be included in the assessment for the right of way, are simply those which it can be said with reasonable certainty the owner of the land will sustain by reason of its appropriation ; in other words, such damages as are necessarily incident to the proper construction and careful manage- ment of the road, leaving injuries resulting from negligence to be compensated for by action whenever they occur. Freeniont, Elkhorn, &c. R. Co. v. Whalen, 11 Neb. 585 ; Whiteman v. Wilmington, &c. R. Co., 2 Harr. (Del.) 514; Hatton o. Mil- waukee, 31 Wis. 27 ; Indiana Central R. Co. B. Hunter, 8 Ind. 74 ; Louisiana, &o. Plank-Road Co. v. Pickett, 25 Mo. 535 ; Pennsylvania R. Co. v. Heister, 8 Penn. St. 445 ■; Kramer v. Cleveland, &c. R. Co., 1076 EMINENT DOMAIN. [chap. XIV. peculiar benefits resulting to them in particular, and not the general benefits they derive in common with other land-owners in the vicin- ity from the building of the road.^ The distinction made in this class of cases seems to us to be without foundation, and if benefits and advantages are to be allowed at all there seems no good reason why, if they are equal to the entire value of the land taken, they should not be allowed in full satisfaction of the entire value found ; and in several of the States, it is "held that if the benefit will equal the value of the land, they may go to the entire payment of the damages, upon the principle that, as no damage is sustained, none can be claimed.^ Although general resulting bene- 5 Ohio St. 140; Malone v. Toledo, 34 Ohio St. 541 ; Columbns, &o. E. Co. v. Simpson, 5 Ohio St. 251 ; Newby v. Platte Co., 25 Mo. 258; Muliitire v- State, ,8 Blackf. (Ind.) 384. The rule is said to be that the benefits to be offset are only such as the land-owner derives in excess of ■ those which his neighbor derives from the construction of the road. Tebo, &c. R. Co. V. Kingsbury, 61 Mo. 51 ; Chapman v. Oshkosh, &c. E; Co., 38 Wis. 629 ; Ra- leigh, &c. R. Co. V. Wicker, 74 N.C. 220; Quincy Mo., & Pacific E. Co. v. Eidg^, 57 Me. 599 ; Mississippi River Bridge Co. v. Ring, 58 Mo. 491 ; Hasher v. Kansas City, &e. R. Co., 60 Mo. 303 ; Addin v. White Mountains R. Co., 55 N. H. 418 ; Wyan- dotte, &c. R. Co. V. Waldo, 70 111. 629. 1 Newby v. Platte County, 25 Mo. 258; Pacific R. Co. V. Chi7stal, 25 Mo. 544 ; McCarty v. Chicago, &c. R. Co., 34 111. App. 273. In a number of the States there are constitutional provisions requir- ing that no right of way shall be appro- priated until compensation is made irre- spective of any benefits to the land-owner to be derived from the proposed road or improvements. In such cases, it is error to admit evidence of the enhanced value of the land-owner's adjacent property resulting from the construction of the road. San Bernadino, &o. R. Co. v. Haven, 94 Cal. 89; Dulaney v. Nolan County (Tex.), 20 S. W. Reji. 70 ; Packard v. Bergen Neck Ry. Co.. 54 N. ,T. L. 229, 553 ; Interstate Consol. Rapid Transit Co. v. Simpson, 45 Kan. 714 ; Chicago, &c. R. Co. v. Wood- ward, 47 Kan. 191. See also Col. Central R. Co. V. Humphreys, 16 Col. 34. 2 Commonwealth v. Middlesex, 9 Mass. 388 ; Whitman v. Boston, &o. R. Co., 8 Allen (Mass.), 133; Putnam v. Douglass, 6 Oregon, 328 ; Elgin v. Eaton, 70111. 324; Trinity College v. Hartford, 82 Conn. 462; Nichols I'. Bridgeport, 23 Conn. 189; Long IslandR. Co. W.Bennett, 10 Hun. (N.Y.) 91 ; Chicago, &c. R. Co. v. Francis, 70 111. 238 ; McReynolds v. Burlington, &c. R. Co., 106 111. 158. But as holding the other docti'ine as stated in the text, see Shipley V. 'Baltimore & Potomac R. Co., 34 Md. 836 ; Jones v. Wills Valley R. Co., 30 Ga. 43 ; Atlanta v. Central, &c. R. Co., 53 Ga. 120 ; New Orleans, &c. R. Co. v. Gay, 31 La. An. 430 ; Todd v. Kankakee, &o. R. Co., 78 111. 530; Fremont, &c. Valley E. Co. v. Whalen, 11 Neb. 585. The distinction noted by Bioelow, J., in Whitman v. Boston, &c. R. Co., 3 Allen (Mass.), 141, will serve to reconcile the apparent conflict. " It was especially necessary that in estimating the damages done to th? land the jury should have been instructed that they were to deduct from the value of the land taken the amount of the benefit which accrued to the peti- tioners by the increase in the value of the residue of the lot, although other lots in the immediate vicinity bordering on the canal had received a similar benefit by the location of the road over them. Otherwise the jury might be led to think the case fell within the rule laid down in the decision read to them from Meaoham r. Fitchburg R. Co., 4 Cush. 291, in which it was decided that no deduction was to be made from damages caused by the location of the road by reason of a benefit received by the person whose land was taken, in common with other owners of real estate in the vicinity whose land was not taken for the construction of the road." See also &EC. 264.] WHAT BENEFIT MAY BE ALLOWED. 1077 fit to the land-owner, in common with that occurring to other land- owners in the vicinity, is not to be taken into account in estimating dataages for land appropriated to the use of a railway, yet where a local incidental benefit to the residue of the land is blended or con- nected, either in locality or subject-matter, with a local incidental injury to such residue of land, the benefit may be considered in fix- ing the compensation to be paid the owner, not by way of deduction from the compensation, but of showing the extent of the injury done the value of the residue of the land.^ In some of ,the States it is held that- whenever the property of an individual is required for public uses, the owner is .entitled to just compensation in money • but if, in addition to its intrinsic value, he claims indemnity for the losses and inconveniences which will incidentally devolve upon him in consequence of such public, appropriation of his property, in esti- mating those losses and inconveniences, the profits, advantages, and conveniences which will result to him from the uses to which the public applies the property taken are also to be estimated, and the excess of the former over the latter is the true amount of incidental, damages. The just compensation guaranteed by the Constitution for the property taken must be ascertained and paid, regardless of any speculative advantage to flow from its use.^ Parks V. Hampden Co., 120 Mass. 395; v. Gay, 31 La. An. 430; California, &g. Allen V. Charlesjown, 109 id. 243 ; Upton B. R. Co. v. Armstrong, 46 Cal. 85 ; Alton, V. So. Reading Branch R. R. Col, 8 Cush. &c. R. B. Co. v. Carpenter, 14 111. 190 ; (Mass.) 600 ; Vicksburg, &c. R. E. Co. o. San Francisco, &o. R. E. Co. v. Caldwell, Calderwood, 15 La. An. 481 ; Chesapeake, 31 Cal. 367 ; Credit Valley E. R. Co. w, &c. R. E. Co.'!). Tyree, 7 W. Va. 693; Spraggs, 24 Grant's Ch. (U. C.) 231. Mount Washington Road, m re, 35 N. H. ^ Cleveland & Pittsburgh R. E. Co. v. 134 ; Carpenter v. Landaff, 42 id. 218 ; Ball, 5 OJiio St. 568. Adden v. White Mountains R. R. Co., 55 '^ Sutton v. City of Louisville, 5 Daiia id. 413 ; Senior v. Metropolitan Ey. Co., (Ky.), 28; Eioe w. Danville, &c. Turnpike 2 H. & C. 258 ; James Eiver, &c. E. E. Co., 7 Dana (Ky.)„ 81 ; Jacob v. City of Co. V. Turner, 9 Leigh (Va.), 313 ; Keiths- Louisville, 9 Dana (Ky.), 114 ; Woodfolk burg, &o. E. E. Co. v. Heniy, 79 111. 290 ; v. Nashville & Chattanooga R. R. Co., 2 Peoria, &e. R. E. Co. v. Black, 58 id. 33 ; Swan (Tenn.), 422 ; Shipley v. Baltimore,, Weir V. St. Paul, &c. E. E. Co., 18 Minn. &o. R. R. Co., 34 Md. 336 ; Hayes v. Ot- 155 ; Minnesota Central R. E. Co. ■». tawa, &c. R. R. Co., 54 111. 373 ;. Wilson McNamara, 13 id, 508 ; Lee w. Tebo, &o. v. Eockford, R. I., & St. L. E. E. Co., 59 B. E. Co.,- 53 M.O. 178 ; Nicholson "». Ill, 273 ; Peoria, P., & J. E. E. Co. v. N. Y. & New Haven R. R. Co., 22 Conn. Laurie, 63 111. 264 ; Carpenter v. Jennings, 74 ; Nichols v. Bridgeport, 23'Conn. 189; 77 111. 250 ; Todd v. Kankakee & I. E. Hornstein v. Atlantic, &c. E. E. Co. 51 E. E. Co., 78 111. 530 ; Oregon Cent. E. E. Penn. St. 87. But in some States general Co. v. Wait, 3 Greg. 91 ; Woodfolk ■». benefits, common to all in the vicinity, are Nashville & C. E. E. Co., 2 Swan, 422 ; held to be allowable as against the dis- East Tenn. & V. E. E. Co. v. Love, 3 advantages. New Orleans, &o. R. R. Co. Head, (Tenn.) 63 ; Paducah & M. E. R. 1078 EMINENT DOMAIN. [OHAP. XIV. A tenant for years whose lease began before, and who was in pos- session at the time an injury was done, is an owner within the pro- visions of a statute regulating the compensation to 'he paid to owners of land, etc., and is entitled to recover damages for an injury sus- tained by him in the building of the road ; and th6 benefit accruing to him from the road, but not that accruing to the land-owner, may be deducted from the injury received.^ But in assessing damages for land taken by a railroad company, the jury cannot legally take into consideration and make allowance for any such benefits as accrue to the community generally from the construction of the road.^ And in some of the States it is held that the "just compen- sation " secured by constitutional provision to a land-owner for in- jury to his property taken by a railroad, excludes from consideration the general enhancement of the value of his property. The cash value and the actual damage are the true standard by which to determine the compensation to which in such c'ases the party is en- titled.' And in those States where benefits are allowed to be offset, the jury canuot estimate the benefit the road has been to property ' of the plaintiff situated in another place, and unconnected with the lot fqr which he claims damages ; * and evidence that the remaining land of the petitioner would be benefited by the location of a station at that place is inadmissible in reduction of damages, if no act has been done by the proprietiors of the railroad towards establishing such a station.^ ,In several of the States the Constitution, and in others the statute, provides that damages shall be assessed without deduction for benefits, and of course, in those States, full damages must be awarded. The fact that the building of the road will increase the demand for a certain species of property which the land- Co. V. Stovall, 12 Heist. (Tenn.) 1; & T. E. R. Co. i>. CaUerwood, 15 La. An. Miss. E. E. Co. V. McDonald, 12 Heisk. 481 ; Jones v. Wills Vallay R. R. Co., 80 (Tenn.) 54 ; Mitchell v. Thornton, 21 Ga. 43 ; Atlanta v. Central R. E. & Bank- Gratt. (Va.) 164 ; Milwaukee & M. ing Co., 53 Ga. 120. R. E. Co. V. Eble, 4 Chandler (Wis.), i Turnpike Road v. Brosi, 22 Penn. 72 ; Buffalo Bayou, B., & C. E. R. Co. St. 29. V. Fenis, 26 Tex. 688 ; Paris v. Mason, 37 " Little Miami E. R. Co. v. CoUett, 6 Tex. 447 ; Sutton v. Louisville, 5 Dana Ohio St. 182 ; Harvey v. Lloyd, 8 Penu. (Ky.), 28; Jacob v. Louisville, 9 Dana St. 8^1. (Ky.), 114 ; Henderson & N. R. R. Co. v. « Brown j). Beatty, 84 Miss. 227j Isom Dickerson, 17 B.Mon. (Ky.) 173 ; Louis- v. Mississippi Central R. R. Co., 36 Miss. ville & N. R. R. Co. v. Thompson, 18 300. B. Mon. (Ky.) 735 ; Elizabethtown & P. * Railroad Co. v. Gilson, 8 Watts R. R. Co. V. Helm, 8 Bush (Ky.), 681 ; (Penn.), 248. New Orleans, 0., & G. W. R. R. Co. v. » Brown v. Providence, &c. R. R. Co., Lagarde, 10 La. An. 150 ; Vicksburg, S., S Gray (Mass.), 85. SEC. 265.] OPINIONS AS TO VALUE: !eXPEET EVIDENCE. 1079 owner has for sale — as, in one case, chestnut ties — is not admissi- ble in reduction of damages. The benefit' is held to be too remote.^ As in the estimation of damages for the taking of land, the disad- vantages and damages arising therefrom are confined to the particu- lar tract from which the land was taken, so upon the other hand the benefits to be allowed are confined to tjie benefits to the particular tract in question, and benefits to other lands owned by the land- owner in the vicinity cannot be considered.^ Sec. 265. Opinions as to Value : Expert Evidence. — As value rests largely in opinion, it follows as a matter of course that persons ac- quainted with the value of the land may give their opinion as to the value, and the amount of benefits or damages.^ In order to 16 Barb. (N. Y.) 100 ; Lincoln v. Sara- toga & Sohen. R. E. Co., 23 Wend. (N. Y.) 425 ; Montgomery & "W. P. R. Co. i). Vamer, 19 Ala. 185 ; Alabama & F. E. E. Co. V. Burkett, 42 id. 83 ; Evansville, I., & C.S. K. E. Co, ■». Fitzpatrick, 10 Ind. 120; Baltimore, P. & C. B. R. Co. r. Jobnson, 59 id. 480 ; Baltimore, &c. E. E. Co. v. Stoner, id. 679 ; Chicago & A. E. E. Co. 0. S. & N. W. R. R. Co., 67 lU. 142; Har- rison V. Iowa, Midland E. E. Co., 36 Iowa, 323 ■,: Prosaer v. Wapello Co., 18 id. 327 ; Henry v. Dubuque, &c. E. E. Co., 2 id. 288 ; Dalzell «. Davenport, 12 id. 437 ; City of Parsons v. Lindsay, 26 Kan. 430 ; Burlington & Missouri Eiver E. E. Co. v. Beebej, 16 Neb. 463 ; Missouri Eiver, &o. R. R. Co. V. bwen, 8 Kan. 409 ; Curtis v. St. Paul, &c. E. E. Co., 20 Minn. 28 ; Sherwood v. St. Paul, &c. E. E. Co., 21 Minn. 127 ; Hosher v. Kansas City, &c. , E. E. Co., 60 Mo. 303 ; Swan v. Middle- sex, 101 Mass. 173 ; Dwight v. Co. Com- missioners, 11 Gush. (Mass.) 201 ; Lafay- ette, &c. R. E. Co. V. Winslow, 66 111. 219 ; Simmons v. St. Paul, &c. E. E. Co., 18 Minn. 184 ; St. Paul, &o. R. E. Co. v. Murphy, 19 Minn. 500 ; Lehmicke v. St. Paul, &c. R. E. Co., 19 Minn. 464 ; East Penn. R. E. Co. v. Hottenstine, 47 Penn. St. 28 ; Frankfort, &o. E, R. Co. v. Wind- sor, 51 Ind. 238 ; Brown v. Corey, 43 Penn. St. 495 ; East Penn. E. E. Co. v. Heister, 40 Penn. St. 495 ; Tate v. M. K. & T. E. E. Co., 64 Mo. 149. But see Burlington v. Missouri Errer E. R. Co. V. Beebe, 16 Neb. 463. The evidence cf witnesses as to the value of the premises 1 Childs V. New Haven, &o. E. E. Co., 133 Mass. 253. * Philadelphia, &o. E. E. Co. v. Gilson, 8 Watts (Penn.), 243 ; St. Louis, &o. E. E. Co. V. Brown, 58 111. 61 ; Todd v. Kan- kakee, &e. E. E. Co., 78 id. 530 ; Minne- sota Valley E. E. Co. v. Doran, 17 Minn. 188 ; Paducah, &c. E. R. Co. v. Stovall, 1 Heisk. (Tenn.) 1 ; Buffalo Baypu, &o. E. E. Go. V. Ferris, 26 Tex. 588. ' Walker v. Boston, 8 €ush. (Mass.) 279 ; Shattuck ■». Stonpham Branch R. E-. Co., 6 Allen (Mass.), 115 ; Wyraan v. Lexington R. R. Co. ,,13 Met. (Mass.) 316 ; ■^hitman v. Boston, &c. E. E. Co., 7 Al- len (Mass.), 313; Vandine o. Burpee, 13 Met. (Mass.) 288; Snow v. Boston & Maine E. E.Co., 65 Me. 23 ; Diedrioh ». Northwestern Union E. E. Co., 47 Wis. 662 ; Jacksonville, &c. E. E. Go. v, Cald- well, 21 111. 75 ; Galena, &o. E. E. Go.,B. Haslam, 73 111. 494 ; Cairo, &e. E. E. Co. V. Woolsey, 85 111. 370 ; Brown v. Provi- dence, &c. E. E. Co., 12 E. I. 238; Indian- apolis, &e. R. E. Co. V. Pugh, 85 Ind. 279 ; Leber v. Minneapolis, &c. E. E. Co., 29 Minn. 256 : Sherman v. Minneapolis, &e. E. E. Co., 30 Minn. 227 ; Sheldon v. Minneapolis E. E. Co., 29 Minn. 318 ; Selma, &c. E. E. Co. u. Keith, 53 Ga. 178 ; Eussell v. Horn Pond Branch E. E. Co., 4 Gray (Mass), 607; Atlantic & G. W. R. Co. V. Campbell, 4 Ohio St 583 ; Cleveland & P. E. E. Co. v. Ball, 5 id. 568 ; Morehouse v. Mathews, 2 N. Y. 514; Dunham v. Simmons, 3 Hill (N. Y.), 609 ; Paige V. Hazard, 5 id. 603 ; Troy & Bos- ton B. E. Co. V. Northern Ttornpifce Co., 1080 EMINENT DOMAIN. [chap. XIV, make such , evidence admissible, the witness must be shown to pos- sess some special knowledge of the value of the land in question. immediately before the condemnation, and the value of the several parcels immediate- ly thereafter, is competent to be considered by the jury. Indianapolis, Decatur & Springfield R. E. Co. v. Pugh, 85 Ind.^ 279 ; Curtis V. St. Paul, Stillwater, & Taylor's Falls E. E. Co., 20 Minn. 28 ; Colvill v. St. Paul & Chicago R. E. Co., 19 id. 283 ; Sherwood v. St. Paul, &c. E. E. Co., 21 id. 127 ; Sherman v. St. Paul, Minne- apolis & Manitoba E. B. Co., 30 Minn., 227 ; SnowB. Boston & Maine R. R. Co., 65 Me., 230 ; Republican Valley R. E. Co. V. 'Arnold, 13 Neb. iS6. So it is competent for a witness who has a per- sonal knowledge of the land, and who possesses the necessary information to ena- ble him to form a proper estimate of its value, to state his opinion as to the value of the residue of the land after the appro- priation ; and it is not necessary that he should know of sales of such tracts of land. Frankfort & Kokomo R. R. Co. V. Windsor, 51 Ind., 238. But such opinions as to damages should be care- fully weighed, not blindly followed. Mo- Reynolds V. Baltimore & Ohio E. R. Co., 106 111. 152. A farmer may, as an expert, give his estipiate of the value as farm land of realty so condemned, but his opinion generally of the value of such realty is inadmissible, since the market value of a farm may be much greater than its agricultural value. Brown v. Provi- dence. & Springfield R. R. Co., 12 R. I. 238 ,; Kansas Central R. R. Co. v. Allen, 24 Kan. 33 ; Kansas Central E, R. Co. v. Ireland, 24 Kan. 35. In a case a witness testified that he knew thp property in question "by sight." He had lived for twenty-two years about three miles from the city of Stillwater. The property had been occupied as a tavern-stand for about ten years, and lay between Stillwater and his residence. It was held that he was acquainted with the property within the rule that, when the value of property is iu controversy, persons acquainted with it may state their opinion as to its value. Lohmicke v. St. Paul, Stillwater, & Tay- lor's Falls E. R. Co., 19 Minn. 464. So in an action for damages for the taking of part of plaintififs block, a witness for plaintiff, who had acted for several years as his agent in looking after the block, had paid taxes, given leases, and collected rents thereon, received offers to purchase, and was personally acquainted with the block both before and after the taking, was competent to testify not only to the value of the strip taken, but also to the depreciation in value of the remainder of the block, by reason of the taking for rail- way purposes. Diedrlch v. Northwestern R. R. Co., 47 Wis. 662. So where a rail- way corhpany spught to condemn city lots with buildings thereon for the use of its road, it Was held that, as lands and city lots have no standard value, it was right and necessary to take the opinions of witnesses, and to hear the facts upon which such .opinions were founded, to en- able the jury to fix the compensation to be awarded to the owners. Lafayette, Bloomington, & Mississippi R. R. Co. v. Winslow, 66 111. .219. The owner, having resided upon and improved it fo» several years, who swears that he knows what it is worth, is a competent witness as to its value. Burlington, &c. R. R. Co. v. Schluntz, 14 Neb. 421. In a Kansas case ten witnesses were called, who testified that they knew the value of the farm be- fore and after the appropriation, and gave such values. Thereafter two witnesses were called, who stated that they did not know the market value. They were then asked "to state if they knew the per cent difference, if any there was, in the value of the farm before the taking and after the right of way was taken." Thia question was objected to, but the witnesses testified as to the per-cent difference. None of the ten witnesses who had testified as to abso- lute values disclosed in their testimony a less per-cent difference than did these two witnesses ; and after all the testimony was received, the jury were sent out to view the farm ; and their verdict was less than two-thirds of the smallest difference in values before and after the appropriation which was disclosed by any of the plain- tiffs witnesses. It was held, under th,e circumstances, that the admission of the SEC. 265.] OPINIONS AS TO VALUE : EXPERT EVIDENCE. 1081 A shoemaker, who has never bought, sold, or owned land in the town, although he has lived there and rented property many years, would the court instruct the jury as to their proper effect on the testimony of the wit- ness and his estimate of damages., Smal- ley V. Iowa Pacific E. H. Co., 36 la. 571. It is the province of the court, and. not of the jury, to exclude improper testimony. Karnes v. Bellville & Eldorado K. E. Co., 89 111". 269. Where the" question asked was much longer than necessary, but in-" quired, in substance^ how much less the land was worth after than before the appro- priation, excluding benefits, it was held not erroneous. Britton v. D. M., 0. & S. E. E. Co., 59 Iowa, 540. Evidence as to noise of Jiassing trains, and as to ^the in- convenience and interruption to the use of the property resulting from the ordinary operation of defendant's road, was held, competent, as bearing upon the question of the diminished value of the property caused by the construction of the road, across the same. County of Blue Earth V. St. Paul & Sioux City E. E. Co., 28 Minn. 503. Marlfet value of land is not a question of science- or skill upon which only an expert can give an opinion. Penn- sylvania, & New York E. E<, &c. Co. v. Bunnell, 81 Fenn. St. 414. And persons of the neighborhood are presumed to have suificient knowledge of the market value to be competent to testify thereto. Penn- sylvania & New York E. E., &c. Co. v. Bunnell, 81 Penn. St. 414 ; Burlington & Missouri River E. E. Co. v. Schluntz, 14 Neb. 421. Although their knowledge may have rested solely upon a few purchases made by the railway company, and from no other sales or purchases in the real-es- state market, they have some knowledge upon which to base an opinion, and the value of that opinion is for the jury. Pitts- burgh & Lake Erie E. E. Co. v. Eobinson, 95 Penn. St. 426. It is held in some of the States that the opinions of witnesses as to the amount of damages sustained by a party are not competent evidence. The witnesses must testify as to facts, and the court or jury must determine the amount of damages from the facta proved. Balti- more, Pittsburgh, & Chicago K. E. Co. o. Johnson, 59 Ind. 247 ; Baltimore, Pitts- burgh, & Chicago E. R. Co. r. Johnson, 59 testimony of these two witnesses, if erro- neous, was not sufficient to justify a rever- sal of the judgment rendered in favor of the land-owner. Leavenworth, Topeka, & Southwestern R. R. Co. v. Paul, 28 Kan. 816. When commissioners reject legal and competent evidence, or mistake the principle that should govern their ap- praisement, their award will be set aside. ^ New York Central, &c. R. R. Co., in re, 15 Hun (N. Y.), 63. It is proper to permit a witness for the railway com- pany, who has given his opinion as to the effect of the" railway on the market value of the plaintifTs land, to be cross- examinfed as to the effect upon such value of the probability or possibility that horses might be frightened or fire communicated by passing engines and trains. ' Wooster v. Sugar Eiver Valley R. E. Co., 57 Wis. 311. And where a witness for the land-owner has been examined in chief, generally, as to the land, the material it contains, value, etc., it is error to sustain an objection to a question, on cross-examination of such witness, requiring him to state the value of the land, including all the materials in it, as it lies, how much it is worth per acre in the market, though said witness may have answered such question on his examination in chief. Pittsburgh, Ft. Wayne, & Chicago E. E. Co. v. Swinney, 59 Ind. 100. It is not proper to ask a witness how much less a farm would be worth by reason of the construction of a railway across it. - This would be an indi- rect mode of obtaining the opinion of the witness as to the amount of damages re- sulting from the construction of the road. Baltiijiore, Pittsburgh, & Chicago E. E. Co. V. Johnson, 69 Ind. 247. Nor is it admissible to ask a witness at what price he had offered for sale adjoining property. Montclair E. E. Co. v. Benson, 36 N. J. L. 557. Where a witness on cross-ex- amination stated at length the grounds fpr his estimate of the diminished value of the premises, some of which were legit- imate and proper, while it was claimed others were not, it was held that a refusal to exclude all was not erroneous, as the defendant might, by asking it, have had VOL. II. —18 1082 EMINENT DOMAIN. [chap. XIV. not be a competent witness to prove the value of lands in the vicin- itj', because he is not shown to have had the means of forming an tion awarded. And where such testimony is presented, the refusal of the lower court to consider it will work a reversal of the cause. St. Louis & Florissant R. K. Co. V. Almeroth, 62 Mo. 343. The commis- sioners may on their own motion take tes- timony in relation to damages. St. Paul & Sioux City E. R. Co. u. Covell, 2 Dak. 488. The land-owner expressly waived the right to produce and examine wit- nesses, and consented with the counsel for the railroad company that the commis- sioners might act upon a view of the prem- ises, which they proceeded to do, and make their award. On motion to set aside the award, it appeared from the affidavit of the land-owner, that in declining to produce; witnesses he acted upon a misapprehension as to his legal rights, founded upon erro- neous information derived by him from an- other ijerson, to the effect that he would be entitled to rehearing, as a, matter of right, before other commissioners, and that on such rehearing he could examine wit- nesses. It was held that the land-owner is entitled to the relief asked for by him, on the ground that he was misled to his prejudice by erroneous information as to his legal rights'. New York, Lackawanna, & Western R. R. Co., 63 How. Pr. (N. Y.) 265. The fact to be ascertained is the value of the land at the time of the tak- ing ; and to arrive at this value, testi- mony to prove the annual net profits de- rived from the land for a particular use is not admissible. Stockton & Copperopolis E. R. Co. V. Galgiani, 49 Cal. ] 39. Upon a jury trial upon a land-owner's appeal to the district court, the applicant called a witness who testified to sales of other lands sold by him from time to time in the vi- cinity of the land sought to be condemned, and also gave testimony with reference to the similarity of situation and character of the lands so sold to the land sought to be condemned . It was held that evidence of the prices obtained for the lots so sold by the witness, and of the average price ob- tained for the lots so sold, was incompetent and inadmissible, Stinson v. Chicago, St. Paul, & Minneapolis R. R. Co., 27 Minn. 284. In a proceeding to condemn an entire Ind. 480 ; Same v. Stoner, id. 579 ; Brown V. Providence & Springfield R. R. Co., 12 K. I. 288. Where the owner of the land taken was asked how much in his opinion, the railroad had depreciated the value of his farm as a whole, it was held that the question referred to the farm as owned by him at the time of the trial, exclusive of the land taken, and was proper. Wooster V. Sugar River Valley R. E. Co., 67 Wis. 811. In some cases it is held that wit- nesses should not be permitted to give their opinions before the jury of the value of the land, subject to the right of way. This should be left to the jury to ascertain from facts affecting the value, and proper to be considered, uninfluenced by the opinion of others. Fremont, Elkhorn, & Missouri Valley R. R. Co. v. Whalen, 11 Neb. 686. Nor as to separate items of damage. New York, West Shore, & Buf- falo R. R.Co., in re, 29 Hun (N. Y.), 609. The declarations of the owner of the land as to its vajue, his offer of it at a fixed price, and sale of a portion of it, are evi- dence on the question of damages, as con- stituting his estimate of its value as against the land-owner. East Brandy wine & Waynesburg R. E. Co. v. Bank, 78 Penn. St. 464. i And where the land-owner died while the proceedings were pending, and a trustee was substituted as a party, under an agreement that no rights of the defendant should be prejudiced thereby, it was held that the agreements, decla- rations, and admissions of the deceased were competent evidence as against the trustee so substituted. Power v. Savan- nah, Skidaway, &c. E. R. Co., 96 Ga. 471. The evidence will be confined to the par- ticular lands described in the petition, un- less the defendant files a cross-petition setting up that he is the owner of ground not described in the original petition, which will be damaged and makes claim to have the damages thereto likewise as- sessed. Chicago & Iowa R. R. Co. v. Hopkins, 90 111. 316. Where land taken for i-ailway purposes is appraised by com- missioners, it is the duty of the court, on exceptions filed, to hear testimony, if of- fered, as to the adequacy of the compensa- SEC. 235.] OPINIONS AS TO VALUE : EXPERT EVIDENCE, 1083 intelligent opinion upon the subject.^ Nor would a farmer be a competent witness as to the value of a fishing-privilege.^ Assessors accustomed to appraise land and who have assessed land in the vicinity,^ or jurors, selectmen, commissioners, etc., who have assessed damages for land taken for public purposes,* farmers living in the vicinity who are acquainted with the land, as to the value of farm land," real-estate agents who are engaged in the purchase and sale of reSl estate, or indeed any persons who are shown to have adequate knowledge of the value of such lands are competent as experts/ The question as to whether the' witness is qualified to give lot in a city, evidence of the price per foot an adjoining tract had Ijeen sold for, and the price per foot at which other lots had been offered for .sale, is competent if of- fered by the company as evidence in chief, biit is not after the defendant has closed. In a proceeding to condemn land, where the petitioner closes his case and the land-owner gives evidence* of the value of the property sought to be taken, there is no error in refusing to allow the petitioner to prove the price at which an adjoining tract was sold, or at which other lots in the vicinity are offered for sale. Such evidence is in chief and not in rebut- tal, and it is a matter of discretion to open the case and let in proof which ought to have been given in chief. Chicago & Western Indiana E. R. Co. v. Maroney, 95 111. 179. Watson v. Milwaukee & Madison E. E. Co., 57 Wig. 332. Where the point was, "to arrive at the value of plaintiff's land, the inquiry is what it would sell for at a fair sale in the market, without reference to its use for any partic- ular purpose ; the best evidence of mar- ket value is the price paid for land in that neighborhood, making allowance for differ- ence in position and improvements." It was held that the point was properly re- fused. Pittsburgh, Virginia, & Charleston E. B. Co. V. Rose, 74 Penn. St. 362. So evidence that some land near by that in controversy was sold ten or twelve years before the trial, and at a certain price, is too remote to determine the value of the land in controversy at the time of its appropri- ation. Everett v. Union Pacific E. E. Co. 59 Iowa, 243. A witness who has been examined on behalf of the land-owners to show tha,t the land was suitable to be platted into village-lots, and its probable value when so platted, may be cross-exam- ined in regard to sales of lots in the vicin- ity, though some of such sales were made four or five years previous. The limits of such evidence are much within the discre- tion of the trial court. Watson v. Mil- waukee & Madison E. R. Co., 57 Wis. 332. 1 Whitney v. Boston, 98 Mass. 312. ^ Boston, &c. E. E. Co. v. Montgom- ery, 119 Mass. 114. ^ Chandler v.. Jamaica Pond Aqueduct Co., 125 Mass. 544 ; Whitman v. Boston & Maine E. E. Co., 7 Allen (Mass.), 313 ; Sexton V. North Bridgewater, 116 Mass. 200. Their ofiieial valuations, however, are not admissible. Brown v. Providence, &o. E. R. Co., 5 Gray (Mass.), 35; Oregon Cascade R. E. Co. v. Bailey,' 3 Oregon, 164; Flint v. Flint, 6 Allen (Mass.), 34; Kenerson v. Henry, 101 Mass. 152. * Fowler v. Co. Commissioners, 6 Allen (Mass.), 92 ; Dickerson v. Fitchburgh, 13 Gray (Mass.), 546 ; Webber u. Eastern R. E. Co., 2 Met. (Mass.) 142. * Brown v. Providence & Springfield E. E. Co., 12 E. I. 238. But in this case it was held that his opinion generally of the value of such realty iS' inadmissible since the market value of a farm may be much greater than its agricultural value. • 6 Jiint E. Flint, 6 Allen (Mass.), 34 ; Central Pacific li. Co. v. Pearson, -35 Gal. '247 ; Boston, &c. li. Co. v, Montgomery, 19 Mass. 114 ; Buffum v. New' York, &e. E. Co., 4 E. I. 221. 1084 EMINENT DOMAIN. [CHAP. XIV. an opinion is for the court,i but the weight of the evidence is for the jury.2 Witnesses having the requisite qualifications may testify as to the effects of the construction of a railroad upon certain classes of estates, — as upon the rental value of premises,' upon the rates of insurance,* the difference in the expense of carrying on a farm by reason of the land being cut by the railroad,^ of the capacity of the land for valu- able uses,^ or indeed in reference to any matter which admits of an opinion founded upon experience. But such evidence is not compe- tent as to matters which are purely speculative and conjectural.' But it is a reversible error, in a proceeding by an abutting owner to recover damages for the occupation by* a railroad of the street in front of his premises, to allow an expert witness for plaintiff to testify as to what, in his judgment, " is the value of that property damaged, if at all, by the presence of the road and th6 running of its trains." That is the exact question which the court and jury are to determine. The proper method in such a case would be to prove the value of ' Tucker v. Mass. Central E. Co., 118 Mass. 546.; Swan v. Middlesex, 101 Mass. 173. 2 Pennsylvania, &e. B. Co. v. Bunnell, 81 Penn. St. 414. In proceedings to con- demn a right of way for a railroad, wit- nesses who testify that they are acquainted with the value of lands in the locality are competent to testify to the value of the land hefore and after the railroad rin through it, without first disclosinfj a know- ledge of the location, grades, and cuts of the road, since knowledge of such matters goes merely to affect the weight of their testimony. Ohio Valley R. Co. v. Kerth, 130 Ind. 314. ' Chandler v. Jamaica Pond Aqueduct Co., 125 Mass. 544. * Webber v. Eastern B. Co., 2 Met. (Mass) 147. s Milwaukee, &c, R. Co. v. Eble, 4 Chand. (Wis.) 72; Rockford, &c. R. Co. v. McKiuley, 64 111. 388. 8 Central Pacific R. Co. «. Pearson, 35 Cal. 247 ; Elizabethtown, &c. R. Co. v. Helm, 8 Bush (Ky.), 681 ; Troy, &c. R. Co. V. Northern T. Co., 16 Barb. (N. Y.) 100. ' Elizabethtown, Sec. R. Co. v. Helm, 8 Bush (Ky.), 681. Evidence of this char- acter, to test the value of the opinion of a witness who testifies as to the future value of laud to be thereafter platted and sold in the shape of village-lots, is clearly admis- sible. Recent sales would be the best test; but the limits within which evidence of sales may be shown is very much in the discretion of the trial judge ; and the court will not find that such judge has abused his discretion upon a question of this nature unless the abuse is clearly shown. Chandler v. Jamaica, 122 Mass. 305 ; Shat- tuck V. Railroad Co., 6 Allen (Mass.), 115; Green v. Fall River, 113 Mass. 262 ; Gardner v. Brookline, 127 Mass. 358 ; Presbrey v. Railroad Co., 103 Mass. 1. The cases recognize not only the propriety of this kind of evidence on the cross-exam- ination of a witness who lias given his opinion as to the value of the property in qviestion, but as evidence iu chief to dis- prove the correctness of the opinion of a witness who has given an opinion of the value of lands in dispute. Benham v. Dunbar, 103 Mass. 865. And generally, evidence of earn made in the vicinity of the lands in controversy, from one to eight years before, is admissible. Paine v. Bos- ton, 4 Allen (Mass. ), 168 ; Railroad Co. v. Railroad Co., 3 Allen (Mass. ), 142 : Davis V. Railroad Co., 11 Cush. (Mass.) 308. SEC. 265.] OPINION AS TO VALUE : EXPERT EVIDEljrCB. 1086 the property before the construction of the road and its value after- wards, leaving the determination of the damages to he made by the court and jury having this and other evidence before them.^ Indeed there appears to be a growing sentiment against the admission of expert evidence in cases of this kind wherever the truth can other- wise be arrived at. It is a matter of common observation that any kind of an expert opinion desired may be obtained by a slight search. " It is generally safer," observes Mr. Justice Earl, " to take the judgments of unskilled jurors than the opinions of hired and gener- ally biassed experts." ^ held that the witness should describe the character of the overflow and its effect, and it would remain for the jury to estimate the damages. See further as sustaining the principle of the text, Avery v. Eail- road Co., 121 N. Y. 31 ; Wycklen v. Brooklyn, 118 N. Y. 424 ; Green ». Plank, 48 N. Y. 669 ; Gray v. Manhattan R. Co., 128 N. Y. 499, 508. In the McGeau case (117 N. Y. 219) the admission of such evidence was not considered ground for reversal, there being other evidence suffi- cient to sustain the finding of the court. But in the later cases it has been held ground for a reversal and for a new trial. 2 Ferguson v. Hubbell, 97 N. Y. 507. In Roberts v. New York El. R. Co., 128 N. Y. 455 ; 60 Am. & Eng. R. Cas. 326, the court, by Peckham, J., remarked ; "Expert evidence, so called, or in other words evidence of the mere opinion of wit- nesses, has been used to 9uch an extent that the evidence given by them has come to be looked upon with great suspicion by both courts and juries ; and the fact has become very plain that in any case where opinion evidence is admissible, the particu- lar kind of an opinion desired by any party to the investigation can be readily pro- cured by paying the market price therefor. . . . This case is a. good illustration of what may be almost termed the wholly worthless character, for judicial purposes, of the testimony on both sides upon this one point, as to what would be the value of this property if this railroad had not been built. The experts on the jjart of the plaintiff guessed that it would have been $30,000 more valuable, while those on the part of the appellant (equally intelligent and, it would seem, equally honest) thought ' McGean c. Manhattan, B. Co., 117 N. Y. 219 ; JefiFerson v. New York El. R. Co., 132 N. Y. 486; Roberts ». New York El. R. Co., 128 N. Y. 455 ; 50 Am. & Eng. K. Cas. 326. The court, by Peckham, J., in this last case, said: " Expert evidence as to the value of real estate is proper and in many cases essential. The present value of the property of the plaintiff can be proved by expert evidence, — both the value of the fee and the rental value. Both classes of values could also be proved by expert evidence, as of a time immediately prior to the building of this road. They are facts which now exist or which have existed ; and if the expert have knowledge of them, he shpuld be permitted to state it. As to what the value would have been un- der wholly different circumstances, he knows and can know nothing but must foim an opinion wholly speculative in its nature, which opinion must be based upon data perfectly easy for him to state, and from which when once stated, an ordinary intelligent jury can draw as just and fair an inference of a possible value as could the expert. And that very inference must in some way be drawn by the jury, for it is the question it is called upon to decide." See also Rochester v. Chester, 3 N. H. 364-366, where the court refused to receive the opinions of witnesses as to the value of land even from those skilled in the mar- ket, holding that the land must be de- scribed and the jury must then judge from these facts. Marcey v. Shults, 29" N, Y. 346, in which the court refused to allow a witness to state his ofiinion as to the quan- tum of damages. That case was an action for damages for raisin? a dam so as to overflow the plaintiff's house. The court 1086 EMINENT DOMAIN. [CHAP. XIT. In determining the value of property at any particular period of time, it is not competent to admit evidence of offers which had been made to the owner by would-be purchasers of the property.^ It has been very well observed that this is a character of evidence " which it is much safer to reject than to receive. Its value depends upon too many circumstances. If evidence of offers is to be received, it will be important to know whether the offer was made in good faith, by a man of good judgment, acquainted with the value of the article, and of sufficient ability to pay ; also, whether the offer was for cash, for credit, or in exchange, and whether made with reference to the market value of the article, or to supply a particular need, or to gratify a fancy. Private offers can be multiplied to any extent for the purpose of a cause, and i the bad faith in which they were made would be difficult to prove." * Sec. 266. Damages in Trespass. — In actions of trespass for the the VBlue of the property would have been less if the road had not been built." In Silleocks v. New York El. K. Co., 19 N. Y. Supp. 476, it was held error to allow a real estate agent to testify as to the effect, in his opinion, of the operation of the ele- vated railway on abutting property. Fol- lowing MoGay v. Elevated Ry. Co., 16 N. Y. Supp: 155. 1 Hine v. Manhattan R. Co., 132 N. Y. 480; 51 Am. & Eng, R. Gas. 603 n.; Minne' sota Transfer Co. v. Gluek, 45 Minn. 463. ; Leale v. Metropolitan El. R. Co., 61 Hun (N. Y.), 613; Lawrence v. Metropolitan El. R. Co., 15 Daly (N. Y.),- 502. See also Linde v. Republic F. Ins. Co., 18 J. & S. {JS. Y.) 362; Fowler v. County Com'rs, 6 Allen (Mass.), 92, 96; Wood o. Firemen'.* Ins. Co., 126 Mass. 316, 3i9; Whitney v. Thatcher, 117 Mass. 527 ; Louisville, &c. R. Co. v. Ryan, 64 Miss. 399, 404 ; St. Joseph, &o. B Co. v. Orr, 8 Kan. 419, 424. 2 FoLLBTT, J., in Keller v. Paiiie, 34 Hun (N. Y.), 177, quoted with approval in Hine v. Manhattan R. Co., 132 N. Y. 480. The reception of evidence of private offers to sell stands upon an entirely differ- ent footing from evidence of actual sales between individuals or by public auction, and also upon a different footing from bids made at auction sales. Young v. Atwood, 5 Hun. (N. Y.) 234. Where in condem- nation proceedings the deed of a person not connected with the parties to the suit, conveying land in the vicinity of the land sought to be taken, was offered in evidence by appellant for the purpose of show- ing the value of the land proposed to be taken, and is not accompanied with evi- dence showing or tending to show that the sale was voluntary or in good faith, or that the lands so sold were similar in locality and character to the lands in question^ — such a deed is properly excluded from the evidence. O'Hare u. Chicago, &o. E. Co., 139 111. 151 ; 51 Am. & Eng. R.Cas. 605; 28 N. E. Rep; 923. See also Seefeld v. Chicago, &c. R. Co., 67 Wis. 97 ; 27 Am. & Eng. R. Cas. 428. But evidence of voluntary 6on(!^(fe sales of other lands in the vicinity similarly situated is admissi- ble to aid in determining the value of the property condemned. St. Louis, &o. R. Co. V. Haller, 82 111. 211 ; Chicago, &o. R. Co. V Maroey, 95 111. 182; 6 Am. & Eng. R. Cas. 360 ; Seattle, &c. R. Co. «. Gil'-. Christ, 4 Wash. 509 ; 30 Pac. Rep. 738 ; 51 Am. & Eng. R. Cas. 605-606 n.; Chero- kee V. Sioux City, &c. Co., 52 Iowa, 279. But it is incumbent upon the party offer- ing such proof to show that the lands so sold were similar in locality and character to the lands in question. O'Hare v. Chi- cago, &c. R. Co., 139 111. 151 ; King v. Iowa Midland R. Co.. 34 Iowa, 458 ; Cummins v. Des Moines, &c. R. Co., 63 Iowa, 397 , 17 Am, & Eng. R. Cas. 26. SEC. 266.] DAMAGES m TRESPASS. 1087 wrongful entry of a railway upon lands without authority of law, the damages generally are confined to such injuries as occurred before the action was brought ; and the company is liable to successive actions for the continuance of the nuisance,, as the satisfaction of the judg- ment does not validate the appropriation of the land.^ But whpre the damages are of a permanent character, and go to the entire value of the estate affected by the nuisance, a recovery may be had of the entire damages in one action.^ Thus, in an action for overflowing the. plaintiff's land by a mill-dam, the lands being submerged thereby to such an extent and for such a period as to make it useless to the plaintiff for any purpose, the jury were instructed to find a verdict for the plaintiff for the full value of the land.* So^ too, when a rail- road company by permanent erections imposed a continuous burden upon the plaintiffs estate,, which deprived the plaintiff of any bene- fiioial use of the portion of the estate so used by it, it was held that the whole damage might be recovered at once j* but where the ex- tent of a wrong may be apportioned from time to time, and does not go to the entire destruction of the estate, or its beneficial use, sepa- rate actions not Only may, but miust, be brought to recover the dam- ages sustained.* So, too, when a nuisance is of such a character that its continuance is necessarily an injury, an(^ it is of a permanent character, so that it will continue without change from any cause but human labor, it is held that the damage is original, and may be at once fully compensated.* » Bird II. Wilmington, &c. E. Co., 8 Co. ». Stein, 75 111. 41; Lamb w. Walker, Rich. (S. C.) Eq. 46 ; Anderson, &c. R. 3 Q. B. Div. 389 ; Chase v. N. Y. Central Co. V. Kernodle, 54 Ind. 314; Bare v. R. Co., 24 Barb. (N. Y.) 273; Chicago, HofiFman R. Co., 79 Penn. St. 71 ; Het- &e. R. Co. v. Carey, 90 III. 514; Chicago, field V. Central R. Co., 34 N. J. L. 251 ; &o. R. Co. v. Hoag, 90 111. 339. In such Carl V. Sheboygan, &e. R. Co., 46 Wis. cases the statute of limitation commences 625 ; Plate v. N. Y. Central R. Co., 37 N. to run from the time when the nuisance Y. 472 ; Mahon v. N. Y. Central R, Co., was created. Powers v.. Council BljlflFs, 45 24 K. Y. 658 ; Cain v. Chicago, &o. R. Co., Iowa, 652. 54 Iowa, 255 ; Dickson v. Chicago, &c. R. * Anonymous,. 4 Dall. .(U. S.) 147. Co., 71 Mo. 575. See also Tucker v. Newman, 11 Ad. & El. " Troy V. Cheshire R. Co., 23 N. H. 41, in which it was held that a spout 101 ; Cheshire Turnpike Co. v. Stevens, fixed to the eaves of a house so as to send 13 N. H. 28 ; Parks v. Boston,, 15 Pick, the water into the plaintiffs yard and (Mass.) 198; Blunt v. McCormick, 3 Den. make it damp was a permanent injury. (N. Y.) 283 ; Thayer v. Brooks, 17 Ohio, * Troy v. Cheshire E. Co., 23 K H. 489 ; Fowle v. New Haven, &c. R. Co., 101. 107 Mass. 352; Cooper v. Randall, 59 111. . ^ Plumer ». Harper, 3 N. H. 88 ; Ches- 317; Dickson v. Chicago, &c. R. Co., 71 hire Tumpika Co. v. Stevens, 13 N. H. Mo. 575 ; Central Branch, &c. E. Co v. 28 ; Battishill v. Reed, ;18 C. B. 714. Twine, 23 Kau. 585 ; Estabrook v. i;rie R. « In Powers v. Council BluiTs, 46 Iowa, Co., 61 Barb. (N. Y.) 94; Chicago, &c. E. 652', the plaintiff was the owner of some 1088 EMINENT DOMAIN. [chap. XIV. Sec. 267. Power not exhausted by First Taking : Lateral Roads. — The power of a railway company to condemn land for its use is not exhausted by the taking of lands for its location, but, unless its power in that respect is expressly limited, it may exercise it from time to time, as a necessity for the increase of its facilities demands.^ " We are aware of no rule of law," says Mulkey, J.,^ " that requires a railway company to acquire by condemnation all the land neces- sary for the construction and operation of its road at the same time. Often it is difficult, if not impossible, to tell in the first instance what amount will be required for such purpose, as this depends so largely upon the growth and development of country towns and villages along the line of the road." Therefore, unless the legisla- ture restricts the company ^to a certain quantity of land which it has taken, or limits the exercise of the power to a certain period which has passed, it may from time to time exercise the power, as the necessities of its business or even the convenient performance of it city lots in Council Bluffs, which were crossed by a meandering stream. In order to remove this stream from the street, the city cut a ditch along the side of the street and across the end of the plaintiff's lots where they abutted on the street. By means of the ditch, the stream, being turned into it, was much shorteped, and removed both from the street and the plaintiffs lands. This was done in 1859 and 1860. The ditch led the water into a county ditch, but was not as deep as the latter by about three feet. By reason of the ditch not being as deep as the county ditch, the fall of the water at the county ditch made a cavity, and also cut away the soil back of the ditch ; and in 1866 the plaintiff began to sustain damage from the ditch by the washing away of the soil of his lots, and at the time of bringing the action thb ditch had become fifty feet wide and twelve feet 'deep, and the plain- tiff had been compelled to put in a wall wliich arrested the damage and preserved his lots from the further inroads of the water. More than five years had elapsed between the time when the water in the ditch first set back and washed away the plaintiff's land and the bringing of the action, and the defendant having pleaded the statute of limitations, the question was, whether the nuisance was continuing, in the ordinary sense of the term, or whether the damage was permanent and accrued from the first injury, or from day to day. The court held that the entire damage accrued when the fall in the stream had moved back from the county ditch to the plaintiff's lots, and the ditch began to deepen and widen along those lots .as ,it had along those below. 1 Fisher v. Chicago, &c. R. Co., 104 111. 323 ; South Carolina R. Co. v. Blake, 9 Rich. (S. C. ) 228 ; Chicago, &c. R. Co. v. Wilson, 17 111. 123 ; Philadelphia, &c. R Co. V. Williams, 54 Penn. St. 103 ; Cen- tral Branch Union Pacific R. Co. v. Atchi- son, &c. R. Co., 26 Kan. 669 ; Seldon v. Del. & Hud. Canal Co., 29 N. Y. 634. In Lamer v. Chicago, &c. R. Co., 59 Iowa, 563, it was held that where a railway com- pany has no authority under its charter to build a lateral road, there is no fraud upon a land-owner in organizing a new company composed of its own stockholders, for that purpose with such authority. Pratt V. Jeffersonville, &c. R. Co.', 52 Ind, 16| Farnham v. Del. & Hud. Canal Co., ei Penn. St. 265. A futile effort to condemn land does not exhaust the power to take effective measures to that end. i* In Fisher v. Chicago, &c. R. Co., 104 111. 323. SBC. 268.] COSTS. 1089 requires. If these borporations, after having established their roads, were to be left without this power as to additional , lands required for the prosecution of their business, and thus subject t'o the cupid- ity of land-owners along their line, it would often be disastrous to the interests of the public, because of the inability of the company to furnish the necessary facilities for the increase of its business, without submitting to ruinous extortion. If it becomes necessary to have additional terminal facilities, or an increased breadth of road- way, unless the company, by law, is expressly restricted either as to^ quantity or the time of taking, it may take additional lauds for such purpose at any time during its existence.^ The lessee of a railroad cannot bring proceedings in its name to condemn land for the use of the road, but must bring them in the name of the company for whose use it is taken.^ But a new railway corporation which has succeeded to the rights of an old one may proceed in its own name.^ Sec. 268. Coats. — Costs are not recoverable in proceedings to condemn land unless the statute so provides,* but usually provision is made that the party prevailing shall recover costs ; ^ and the com- pany is held to be the losing party when damages are awarded against it upon its appeal, although the sum allowed is less than that found by the commissioners or tribunal from which the appeal was taken.® But where the land-owner appeals and he fails to obtain a modification in his favor, the costs of the appeal are chargeable against him.'^ When on an appeal by the company the order con- firming the award is reversed and new commissioners are appointed, the company, though - successful, must pay costs.^ If costs are 1 Beck o. United N.J. E.& Canal Cos., Rand, 8 Gush. (Mass.) 218; Rensselaer, 89 N. J. L. 45 ; In re N. Y. Central R. &c. R. Co. v. Davis, 55 TS. Y. 145. Co., 64 Barb. (N. Y.) 426 ; Childs v. Cen- ^ Goodwin v. Boston, &o. E. Co., 63 tral R. Co., 33 N. J. L. 323. Me. 363 ; Bangor, &c. E. Co. v. Chamber- 2 Dietrichs v. Lincoln, &c. R. Co,, 13 lain, 60 Me. 285. Neb. 361 ; Gottsohalk v. Lincoln, &o. R. ' New Orleans, &c. • E. Co. v. Gay, 31 Co., 14 Neb. 389. La. An. 430; Metier v. Easton, &c. E. Co., » Cogswell i>. New York, &c. R. Co., 37 N. J. L. 222 ; Leake v. Selma, &o. E. 48 N. Y. Superior Ct. 31. Co., 47 Ga. 345; Noble v. Des Moines, &o. * Sherwood v. St. Paul, &o. E.Co., 21 R. Co., 61 Iowa, 637 ; 14 Am. & Eng. R. Minn. 122 ; Metier d. Easton, &c. R. Co., Cas. 208 ; Helm v. Short, 7 Bush (Ky.), 37 N. J. L. 222 ; Herbeiu v. Philadelphia, 623 ; New Orleans, &c. E. Co. v. Gay, 31 &c. R. do., 9 Watts (Penn.), 272 ; Phila- La. An. 430 ; Childs v. New Haven, &c. delphia, &c. R. Co. v. Johnson, 2 Whart. E. Co., 135 Mass. 570 ; 17 Am. & Eng. R. (Penn.) 275. , Cas. 139. Contra, People v. McRoberts, , ■. 5 Atlantic, &c. R. Co. v. County Com'rs, 63 111. 28. 28 Me. 112 ; Harvard Branch R. Co. v. 8 Matter of New York, &c. R. Co., 94 N. Y. 287. 1090 EMINENT DOMAIN. [chap. XIV. assessed against it, their payment as well as the payment of damages is a condition precedent to the company's right to enter on the land condemned.' In New York it is held that while the costs on appeal are the same as in other actions, there can be no extra allowance.' 1 Chicago, &0. R. Co. v. Bull, 20 III. 218. Compare Evansville, &c. R. Co. v. Fltzpatriok, 10 Ind. 120. If on appeal the company abandons proceedings, costs must be taxed against it. Leisse v. St. Louia, &c. B. Co., 72 Mo. 561 ; 2 Mo. App. 105 ; North Missouri R. Co. v Raynal, 25 Mo. 634 ; St. Louis, &c. R. Co. v. Martin, 29 Kan, 750 ; 10 Am. & Eng. E. Cas. 514. ' Rensselaer, .&c.'R. Co, v. Davis, 55 N. Y. 145. In an action against an ele- vated railroad company for damages caused by the maintenance of its station opposite plaintiffs premises, counsel's fees paid for arguing an appeal involving the right to maintain the station in question, though properly pleaded as a matter of special damages, cannot be. allowed, since they are not such damages as naturally result from the maintenance of the structure. Matt- lage V. New York El. R. Co., 17 N. Y. Supp, 586. But a reasonable attorney's fee incurred in former condemnation proceed/, ings, which were dismissed, may be recov- ered in an action for damages in a second proceeding to condemn the same tract ; and the juiy may determine the reasonable: ness of such fee without the testimony of lawyers or other experts. Gibbons v. Mis- souri Pacific R. Co., 40 Mo. App. 146. SEC. 269.] location: what is. 1091 CHAPTER XV. Location and Consteuction. Sec. 269. Location : What is, etc. 270. Location : Selection of by Com- pany. 271. Cliange of Location. 272. Location : How described : Maps and Plans. 273. How Location may be lost. 274. Description of Termini : Con- struction of Words Eelating to. 274 a. Contracts to influence Location. 275. Construction of the Eoad : Mode of Construction : Con- sequential Injuries. 276. Bridges : Over Navigable Wa- ters and as a Part of the Highway over its Road. 277. Contracts for Construction of the Eoad. 278. Abandonment of Contract : New Agreement. 279. Extra Work. 280. Entire Contract. 281. Modification of Contract. 282. Payment in Stock. 283. Subcontractors. 284. Liability of Company for Acts of Contractors or their Servants. 285. What Reservation of Control over the Work renders Con- tractee liable. 286. Where the Contractee owes a Duty to the Public or to Individuals. 287. Specific Performance of Con- tract for Construction. 287a. Crossings where two Railroads intersect. 287 J. Highway and Private Crossings. 287 c. Duty to establish Stations. 287 (i. Right to provide Reasonable Regulations as to Stations. Sec. 269. Location . TWhat is. — The accurate and technical meaning of " location " as used in railway law is the line or strip of land over which it is proposed to run the road, after such line has been surveyed and definitely fixed upon as the route of the road.-' In its location the railroad company has a mere inchoate right of property, enforceable against all except the owner of the property, and which becomes perfected upon the acquisition of the land by purchase or condemnation.^ Until such condemnation or purchase. ^ Sioux City, &c. R. Co. v. Chicago, &c. R. Co., 27 Fed. Rep. 770 ; 25 Am. & Eng. R. Cas. 150 ; West v. West & East R. Co., 61 Miss. 536 ; 20 Am. & Eng. R Cas. 402 ; Hickey v. Chicago, &c. R. Co., 6 111. App. 172 ; 2 Abbott's Law Diet., p. 58 ; 2 Bouv., Id., p. 80 ; Anderson's, Id., p. 636. 2 Lafferty v. Schuylkill, &c. R. Co., 124 Penn. St. 297 ! 36 Am. & Eng R. Cas. 575 ; Davis v. Titusville, &c. R. Co., 114 Penn. St. 308 ; 30 Am. & Eng. R, Cas. 341. Thus, in a New York case. Gray, J., speaking for the court, said : "When, therefore, a corporation has made and filed a, map and survey of the line of route it intends to adopt for the construc- tion of its road, and has given the required 1092 LOCATION AND CONSTRUCTION. [CHAP. XV. however, the company has no right to use the location except for purposes of the preliminary survey, etc. ; ^ but its right as against the land-owner is such that he cannot deprive it of the location by the conveyance of the land covered by it to another company.^ The word may of course have other meanings in particular connections ; thus as used in conditions in stock subscriptions it ordinarily means the construction and operation of the road.» But what has been said was in reference to the word as used in this chapter. Upon the location having been selected, the company's right to is perfect so far as other companies are concerned, and a rival company cannot institute proceedings to appropriate it. But to constitute such a location there must be some definite corporate action on the part of the company establishing and adopting some definite route ; the mere fact that an engineer alone surveyed and marked out a line is not sufficient to amount to a valid appropriation of the location by the company, and it cannot afford ground for proceedings against a rival company occupying that line.* Sec. 270. Location: Selection of by Company. — Where a charter is granted to a railway company to build a railway between certain termini without defining the route, the company is invested with discretion to select any route between the points named that it deems advisable ; as it is presumed that the company, in the con- struction of its road and the selection of its route, will act as well notice to all persons affected by such, con- R. Co., H Wend. (N. Y.) 51; ante, § struction, and no change of route is made, 234. as the result of any proceedings instituted ' In upholding the rule of the text, the by any land-owner or occupant, in our court said : " All that the owner can judgment it, has acquired the right to con- demand is that his damages shall be paid, struct and operate a railroad on such line, and subject to this right of compensation exclusive in that respect as to all other to the owner, the State has the control railroad corporations, and free from the over the right of way, and can, by statute, interference of any party. By its proceed- prescribe when and by what acts the right ings it has impressed upon the lands a thereto shall vest, and also what shall con- lien in favor of its right to construct, stitute an abandonment of such right." which ripens into title upon purchase or Sioux City, &c. R. Co. v. Chicago, &c. R. condemnation proceedings. We could not Co., 27 Fed. Rep. 770 ; 25 Am. & Eng. B. hold otherwise without introducing con- Cas. 150. fusion in the execution of such corporate ' See ante, § 31 ; Parker v. Thomas, projects and without violating the obvious 28 Ind! 277 ; Foster v. Park Cbra'rs, 133 intention of the legislature." Rochester, Mass. 332. &o.' R. Co. V. New York, &o. R. Co., 110 * Williamsport R. Co. v. Philadelphia, N. Y 128 ; 35 Am. & Eng. R. Cas. 267. &c. R. Co., 141 Penn. St. 408. See also ' Polly V. Saratoga, &o. R. Co., 9 Barb. Davis w. Railroad Co., 114 Penn. St. 808 ; (N. Y.) 449 ; Bloodgood v. Mohawk, &c. Appeal of New Brighton, &c. R. Co., 105 , Penn. St. 18. SEC. 270.] LOCATION : SELECTION OP BY COMPANY. 1093 with a view to the public interest as to the interest of its stock- holders, as the profits to be derived from the building of the road will largely depend upon the business interests of the country tra- versed thereby. But where the legislature has given it no discretion in the matter except as to the location of the road over the desis- nated route, it can only follow the route so designated, and any departure therefrom is unau-thorized. 'The question whether the loca- tion adopted is authorized by the charter or general law is one for the courts to determine. But the exercise of this discretion by the company will not be disturbed except where there is a plain case of an abuse of it.^ In determining the extent of the company's discre- 1 Walker v. Mad River, &c. R. Co., 8 Ohio, 38; Hentz v. Long Island R. Co., 13 Barb. (N. Y. ) 646 ; Fall River Iron Works V. Old Colony R. Co., 5 Allen (Mass. ), 221 ; Parke's Appeal, 64 Penn. St. 137 ; Cleveland, &c. R. Co. v. Speer, 56 Penn. St. 325 ; 94 Am. Dec. 84 ; Struthers v. Dunkirk R. Co., 87 Penn. St. 282 ; People v. New York Central R. Co., 74 N. Y. 302 ; Southern Minn. R. Co. v. Stoddard, 6 Minn. 150. As a rule, a rail- way company may select its own route, fix its terminal points, and lay out its road, and acquire the right of way and other property necessary for the construc- tion of its road on any and every part of its line, whether within city limits or without them, according to its own dis- cretion. The lines selected may, without the assent of the city, cross streets, and the company may, without such assent, acquire the right of way and construct its road on every part of such line, except the parts to be constructed upon or across streets. Chicago, &c. R. Co. v. Dunbar, 100 111. 110 ; 5 Am. & Eng. E. Cas. 253. See, also, s. c. 95 111. 571. An illegal location may be made perfect by legisla- tive confirmation. Com. v.- Old Colony E. Co., 14 Gray (Mass.), 93; Salem v. Eastern E. Co., 98 Mass. 431. When a railway company has ascertained and located where its road shall be, it is not competent for another company to step in and take its route, agree with the owners and occupy the land. The selec- tion and location of route secures the title of the first company to that route, which it may carry to completion without dis- possession by another. Titusville, &c. R. Co. V. Warren, &c. R.' Co., 12 Phila. (Penn.) 642. Under a statute authorizing railway companies to lay out their roads exceeding five rods in width, and requir- ing the location of the road to be filed with the county commissioners, defining the courses, distances, and boundaries in each county, a location which does not state the width of the land taken or the boundaries of the location, nor refer to a map of the land placed on file, is invalid. Housatonic R. Co. v. Lee, &c. E. Co., 118 Mass. 391. A., the owner of a tract' of land over which a railway company was about to locate its line, made a contract with G., the attorney and agent of the company authorized to settle land damages, by which the location over A.'s land was to be twenty feet in width, and not to include within it certain buildings. This contract was reported to the managing officers and agents of the company, and was ratified by them. At a meeting of the directors, a plan and location were exhibited, showing a location five rods wide, and G. stated that he had agreed with vaiious owners of land to have the location of less width, and was directed by the president, in the presence of the directors, to make the necessary changes. G. thereupon made several changes in the plan and written location, but, by inad- vertence, did not alter the plan and loca- tion to confoi'm to the contract made with A., but left the location five rods wide, which included portions of his buildings. The plan and location were then adopted by vote of the directors as the location of 1094 LOCATION AND OONSTBUCTION. [CHAP. XV. tion, limitations upon it are not to be too easily implied. Thus, if a charter grants authority to build a road over a certain route, the company is not bound by a plan of the route which was exhibited to the legislature, the plan not being referred to in the act ; nor is it admissible in evidence to control the construction of the charter as to the limits within which the road is to be constructed ; ^ nor are the railway, and were duly filed. A. having filed a bill in equity against the company to have the location reformed so as to correspond with the agreement, it was held that there was no evidence that either G. or the managing officers had any authority from the company to make such a contract, or that the president and directors had notice or knowledge of the same, or of the fact that G. inadvertently omitted to alter the location over A.'s land ; and that the bill must be dismissed. Central Mills Co. v. New York, &c. K. Co., 127 Mass. 537. I Boston, &c. R. Co. v. Midland R. Co., 1 Gray (Mass.), 340. In North Brit- ish Ry. Co. V, Tod, 5 Bell's App. Cas. (So.) 184, the question arose as to the right of the company to Intersect an approach leading to a mansion-house at a different level from that laid down in the paallia- mentary plans, in which it appeared as a cutting of fifteen feet, and the way raised upon a bridge two feet. The owner of the mansion had at first opposed the bill, but upoq the representations contained in the plans, withdrew his objections. It was held that the plans were only binding to the extent that they were referred to in the act. Beardmer v. London, &c. Ry. Co., 1 H. & T. 161. When the plans are Merred to generally in the charter, they are held to be binding upon the company to the extent of determining the datum line and the line of railway with reference to such datum line, but not the surface levels unless expressly so provided in the act. North British Ry. Co. v. Tod, ante. In another ease the plaintiff, the owner of a piece of land through which a railway company, by their plans and sections, rep- resented they intended to pass an em- bankment, so as to cross a public road on the level, filed a bill, and obtained an ex parte injunction to restrain the company from lowering or excavating the road, or affecting the plaintiff's land in any man- ner inconsistent with the provisions of their act, or the deposited plans or sections, or an agreement entered into by the plain- tiff with the company. The Lands Clauses Consolidation Act having been incorporated with the special act, and the agreement referring to the latter act, it was held that the company were entitled to exercise all the powers given by the general and special act, although the plaintiff's bUl and affidavits stated that the agreement was entered into on the understanding that the line would be made according to the plans and sections. Braynton v. Lon- don, &o. Ry. Co., 10 Beav. 238. A rail- way company, before applying for a de- viation act, deposited with the clerk of the peace for the county, plans and sec- tions of the proposed line, and cross-sec- tions, showing the manner in which roads were to be carried over the line. One of these cross-sections delineated the manner in which it was proposed to carry a road at I. over the line by a bridge, and the pro- posed inclination of the altered line of road. The deviation act was incorporated with this act, and authorized the company to construct the bridges for carrying the railway thereby authorized over any roads, or for carrying any roads over the said railway, of the heights and spans, and in the manner shown on the sections de- posited. The company made the line, and at I. deviated two feet vertically from the level marked on the plans. They carried the road over the line on a bridge of the proposed height and span, hut with a different inclinatioij of the altered road. A mmularmis having commanded the company to make the bridge, and carry the road over it in conformity with the cross-section, and at the rates of incli- nation delineated thereon as the rates of inclination of the road when altered, it was held, on demurrer to a plea to the SEC. 270.] LOCATIOBT : SELECTION OP BY COMPANY. 1095 the petitions to the legislature to secure a charter admissible to show that a particular route was intended by the legislature.^ The cir- cumstance that no restriction is imposed upon the company in tiie charter, as to the route, affords grouiidfor a conclusive presumption that the legislature intended to clothe it with a discretion as to the route to be selected ; and after the company has selected its route, in an action against it for injuries resulting from the construction of the road, it is not proper to submit to the jury the question as to whether it could not, at a reasonable expense and without undue injury to the road, have so located it as to avoid the injury .^ The corporation itself, through its proper officers, is the tribunal to decide this (question ; and so long as they comply with the provisions of the statute and (io not abuse this discretion, their decision cannot be dis- turbed, and the parties who suffer injury therefrom have no other redress than such as the statute provides. This was well illustrated in a New York case,* in which by the statute the company was return, that the mere exhibition of plans and sections whilst a hill is depending in Parliament, does not make them obligatory on the promoters after the act has passed, unless there be something in the special act when passed, or in the, general acts with which it is incorporated, which re- quires that the plans should be followed. The exhibition of plans and sections be- fore the act is passed is analogo^is to parol negotiations and proposals preliminary to the making of the private agreement, which is afterwards reduced into writing,; such proposals do not bind the parties, except m so far as they are in writing. Reg. v. Caledonian Ry. Co., 16 Q. B. 30. In an- other case, by an act of Parliament author- izing an extension of a line of railway and the construction of a station, which act in- corporated the Railways Clauses Consolida- tion Act and this act, it was enacted that subject to the powers of deviation in this act contained, it shall be lawful for the said company to make and maintain the said extension and the said station, and the works Qonnected therewith, in the lines, etc., and upon the lands delineated upon the said plans, etc., and to enter upon, take, and use such of the said lands as shall be necessary for the purpose. The plain- tiff's lands wero delineated upon the plans end marked 1 and i, and the line of devia- tion passed through both lots. The com- pany required the entire lots of 1 and 4 for the purpose of extension and the station. It was held, dissolving an injunction ob- tainM hy the plaintiff, that the company were empowered to take all or any part of the lands delineated on the plans, although beyond the line of deviation, and although they were not so entitled under the powers of deviation contained in the Railways Clauses Consolidation Act. The court thought that, inasmuch as the plans showed where the stations should be mad^, it was the Intention of the legislature to empower the company to make it on the whole of the land without attention to the limits of deviation at all. Crawford v. Chester, &o. Ry. Co., 11 Jur. 917. See also River Dun Nav. Co. v. North Mid- land Ry. Co., 1 Ey. Cas, 135 ; Payne v. Bristol, &c. Ey. Co., 6 M. & W. 320 ; Reg. ». Eastern Counties Ey. Co., 2 P. & D. 648. 1 Com. V. Fitchfcurg R. Co., 8 Gush; ' (Mass.) 240. A special reference to the plans, etc., in the charter for one purpose, does not make them admissible for another. Reg. V. Caledonian Ry. Co., 16 Q. B. 19. 2 New York, &c. E. Co. v. Young, 33 Penn. St. 175 ; Southern E. Co. v. Stod- dard, 6 Minn. 150 ; Cleveland, &c. R. Co. V. Stockhouse, 10 Ohio St. 567. ' People V. New York Central R Co., 12 Hun (N. Y.), 195, ajirmed, 74 N. Y. 1096 LOCATION AND CONSTBUCTION. [CHAP. XV. authorized to construct its road " across, along, or upon any high- way, etc., but the company shall restore the highway thus inter- 302. Where the legislature authorizes the hoard of directors of a railroad com- pany to locate and construct their road along and across the public grounds and streets of an unincorporated town, and the directors, in pursuance of that authority, do so locate and construct their road, they act as public agents in so doing. Such location is the act of the State, and within the legislative authority, unless such use of the land ia inconsistent with the use to which such public grounds had been pre- viously applied by the legislature. Chi- cago, &c. R. Co. V. Joliet, 79 111. 25. Matter of Coney Island R. Cd., 12 Hun (N. Y.), 451. A legislative grant of authoi-ity to construct a railroad along a river does not authorize the construction of the road in or upon such river. Stevens V. Erie' R. Co., 21 N. J. Eq. 259. Com- pare Hays v., Briggs, 3 Pittsb. (Penn.) 604. Where a railroad company acquired a right of way one hundred feet wide, over a tract of land situated in two sec- tions of a township, under an agreement by which the railroad was to be located "on the section line," it was held that the company did not forfeit its right to the land, because its track was not laid immediately on and along the section line, it being constructed within the limits of the one hundred feet, and that strip embracing the section line. Hun- kers V. Kansas City, &c. R. Co., 60 Mo. 334. Where two railroad companies have the right to extend their tracks in and through a certain street to the terminus thereof, the company which first actually takes qualified possession of the middle of the street, by locating and constructing an extension of its tracks thereon, for a part of the distance, until interfered with by the agents or servants of the other company, acquires the right to complete the construction of its tracks, to the ter- minus of the street, to the exclusion of the right of the other company to interfere in any way with the construction and opera- tion of such extension so located. Water- bury V Dry Dock, &c. B. Co., 54 Barb. (N. Y. ) 888. A commission appointed to ascer- tain and determine the points and manner of the crossing by one railroad of another has no power to locate the crossing at any , place other than that stated in the order ; nor to review any fact on which the order was based ; nor to question the right of the petitioner to a crossing ; nor to pre- scribe the rate of speed at which trains on the intersecting roads shall pass the cross- ing. Matter of Central R. Co., 1 Th. & C. (N. Y.) 419. Under the' Connecticut act of 1866, u. 67, empowering railroad commissioners to discontinue any railroad / station, their determination must be defi- nite, and not dependent upon conditions to be performed by parties over whom they have no control. Chester i>. Con- necticut, &c. R. Co., 41 Conn. 348 ; State V. New Haven, &c. B. Co., 42 Oonn. 56. A charter authorizing the build- ing of a railroad to » ' city named does not restrict the right to build the road to the limits of the city, but imports an authority to, extend the road within the city limits. Rio Grande R. Co. v. Brownsville, 45 Tex. 88. Under a rail- road charter fixing the terminus "at or near P.," it was held that a location a mile and » half from P. was within the discretion allowed. Parke's Appeal, 64 Penn. St. 137. But under a statute author- izing a railroad -company "to extend the lino of said road to the south line of the State," it was held that the power to extend could be exercised only by building a road continuously from the fixed ter- minal point of the road. The extension is accessory to the principal rond ; and power to change the " location " or "route" does not include power to change the termini. Attorney-General v. West AVisconsin R. Co., 36 Wis. 466. Aut^ior- ity given to a street railway corporation to extend the location of its tracks, when- ever this can be done without entering upon the tracks of another corporation, may include the location of additional tracks not connected with its existing tracks except by the tracks of another , corporation. South Boston R. Co. v. Middlesex R. Co., 121 Mass. 485. A railroad company may alter the location of its depots and tracks, after the road SEC. 270. j LOCATION : SELECTION OP BY COMPANY. 1097 sected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness." The defendant, in the exercise of its discretion, carried a highway in the town of Sweden, which it crossed, over its railway, by means of a bridge and embankment. For this it was indicted as for a nuisance, convicted, fined $2,000, and ordered to abate the nuisance. But the judgment was reversed because of errors in the charge of the court to the jury. Talcott, J., in delivering the opinion of the General Term gave ex- pression, as it seems to us, to the true rule controlling in such cases. He said : " The presiding judge seems to have proceeded upon the theory that this obligation to restore the highway to such state as not unnecessarily to have impaired its usefulness was in the nature of a. condition precedent to the exercise of the right to cross the highway at all, and therefore he instructed the jury as follows : ' The main question is, — whether the mode of crossing the highway, to wit, by means of the embankment and bridge, by which the highway is taken above its former level and is carried over the railroad track at a height of several feet, — whether that, in and of itself, is a nuisance, by rea- son of the obstruction it presents to travel.. ... I submit to you in the first place this proposition : If the question as to the most expedient mode of crossing the highway at this particular place is simply a question in respect to which different engineers, of ordinary capacity, skill, and experience in the business of laying out railroads would honestly differ in opinion, having regard as well to the effect of the proposed crossing upon the condition and usefulness of the highway as to the interests of the railroad company, then the mode adopted cannot be regarded as a nuisance, in and of itself, although the jury should be of opinion that it was not the most expedient one. . . . The statute to which I have adverted says to them in lias been completed under the first loca- could not be reviewed by the courts. It tion, if the necessity for the change is the act of location is voidable, none but manifest, and no detriment ensues there- the commonwealth can call the company from to the public ; and may condemn to account. Cleveland, &o. E. Co. v. private property needed for such reloca- Speer, 56 Penn. St. 325. Where a rail- tion. Mississippi, &c. R. Co. v. Deva- way company has divided a road, ultra ney, 42 Miss. 555. See Easton, &c. E. vires, but with a bond fide view to the Co. V. Greenwich j 25 N. J. Eq. 565. oonvenienceof the public, a court of equity Where a railway company was authorized will not compel it to replace the road so to locate its road by the most direct and as to make the work intra vires, if the least expensive route, it was held that result will be to cause greater inconveni- after the location and construction had ence to the public, or the complaining become complete, the exercise of the dis- section of the public. Attorney-General cretion of the company in the location v. Ely, &c. Ry. Co., L. R. 6 Eq. 106. TOL. II. — 19 1098 LOCATION AND OONSTEUCTION. [CHAP. XV. express terms : You can cross the highway over or under as is most expedient ; you can cross it in any way, provided you do not un- necessarily impair the usefulness of the highway. That condition you must observe. ... On the other hand, I subitiit to you, as a proposition of law, that if it appears by the evidence that in deciding upon the mode of crossing the point in question the inter- ests of the company alone were consulted, and due attention was not paid to the condition of the highway or the rights of the public in the use of the highway, and that the mode adopted had' and continues to have the effect to unnecessarily impair the former condition and usefulness of the highway, then the jury will be warranted in finding the defendant generally guilty under the indictment, guilty of maintaining a nuisance iu that mode of cross- ing under such circumstances.' To this instruction the plaintiffs in error excepted, and this exception presents the main question in the case. " The indictment is for carrying the highway over the tracks in- stead of under it or at grade, that is, upon a level with the highway. The statute, as we have seen, gives the railroad company the power to cany the highway over or under the track, 'as may be found most expedient.' Found by whom ? There is no tribunal named in the act for determining the question of expediency, or which course will he the most expedient, and clearly — as it seems to me — the railroad company is to determine that question ; and when it has determined it in good faith, thout^gh it may, in the opinion of the jury, have erro- neously determined the question as to the relative expediency of the mode of crossing, its judgment cannot he reversed by a jury. The legis- lature of the State, whether wisely or unwisely, have conferred upon the railroad company the power of determining the question, and no appeal from the determination of the company is provided by the law, either to a court or jury. If left to be determined by a jury, after the company has deliberately determined the mode of crossing the highway, by adopting one of the alternatives authorized by the statute, one jury might determine that the manner of crossing which would least impair the former usefulness of the highway would be by crossing under the -grade of the highway ; another, by having the highway cross above the track; and still another might conclude that the most expedient method of crossing the highway would be at grade. It seems to me that the legislature has seen fit to confer the exclusive power to determine the question as to the relative SEC. 270.] LOCATION ; SELECTION OF BY COMPANY. 1099 expediency of the mode of crossing upon the railway company, deeming the provision requiring the railway company to restore the highway so as not to have unnecessarily impaired its usefulness a sufficient protection to that portion of the public which ;has occasion to use the highway for purposes of ordinary travel. " That the usefulness of the highway as such may, to some extent, be impaired by a railroad crossing, the statute impliedly concedes. If the railroad company fail as far as possible to restore the high- way to its former condition, a mandamus, which shall direct the company what shall be done to complete such restoration,^ may be issued to compel the performa;Qce of the omitted duty, or perhaps the railroad company may be subjected to an indictment, distinctly charging the acts which it might and ought to have done for the purpose of restoring the highway. !3ut I do not think the remedy is to be found in an indictment for a nuisance, founded on the man- ner of crossing, when, as I construe the statute, the railroad company has the exclusive power of determining that manner ; and when it has been by it determined that the particular mode selected is the ' most expedient,' it has the warrant of the legislature for crossing the highway in that particular manner." Of course, the legislature may define the route, may even fix the location,^ but where it neglects to do so, but leaves the company to 'People 0. Dutchess, &c. E. Co., 58 over hisland may apply to a justice of the N. Y. 152. ' Supreme Court for the appointment of 2 In re Coney Island, &o. R. Co., 12 commissioners. These commissioners act Hun (N. Y.), 4!)1. In this case a rail- in each county, and their duty is to exam- road company was organized by an act of ine the proposed route and to confirm or the legislature and authorized to construct alter it as seems best for the interests its road between two points, and over cer- of the party concerned and the public, tain streets and roads therein named. It Their power extends over any portion of was held that this constituted a practical the route \^ithin the county, and is not location of its route by the legislature and restricted to the lauds of the party secnr- dispensed with the notice of the location ing their appointment. Their alterations of its route, and of the filing of the map must not so disturb the continuity of the required by the genei-al railroad act. proposed ronte as to leave it disconnected, Any material departure from the route thereby interrupting the road. There is designated for the propose(^ road in \he only one board of commissioners in each charter is a violation of the charter for county, and when their work is done the which a forfeiture of the company's fran- route through the county is settled. No chises may be claimed, though only the person can call for the appointment of State has a right to institute proceedings these commissioners except one whose land to have such forfeiture declared, and' it is about to be taken, and who, feeling may waive its right. Mississippi, &c. R. himself aggrieved, sets out his objections Co. V. Cross, 20 Ark. 443. Under the in his petition. , People i>. Tubbs, 59 Barb, general railroad act of New York, any (N. Y.) 401, affirmed, 49 N. Y. 356 ; person aggrieved by the proposed location Norton e.Wallkill Valley R. Co., 61 Barb. 1100 LOCATION AND CONSTETJCTION. [CHAP. XV. ■ exercise its discretion in the matter between the termini named, it seems to us that the rule laid down by Talcott, J., supra, is the true one, and that where it acts in good faith, and within the limit of its powers, its action cannot be reviewed by the courts.^ But if it acts in this respect in excess of its powers, or if it abuses the discretion with which it is invested, — as, if it departs from the purpose of its charter by building a road different from that intended by the legis- lature, — its acts will be unauthorized, and its charter will afford it no protection.^ Thus, in a Massachusetts case,^ the charter of a railway company required the road from Northboro to Southboro to be laid out as far north as a certain point, and in the location a curve was made in order to reach that point, and the road was thence con- tinued towards Southboro by an acute angle. It was held that the subsequent continuation of the road for about a mile and a half northerly from the point of the angle to the village of Marlboro was unauthorized.* A grant of authority to "extend" the road con- templates that one terminus shall remain unchanged and does not authorize the construction of a new and independent road.^ A railroad company about to build its road, and proceeding to comdemn the lai^d under its charter for the use of the road, should, even though the statute makes- no provision therefor, deiine with precision the location and the quantity required, to show the land- owner the extent of the claim made ; but after the road has been located, a description of the land in the report of the commissioners and an accompanying diagram are sufSciently precise, although no actual survey by courses and distances is made.^ If the statute requires that a map of the route shall be filed, it must be complied with ; but a map of a railroad professing to be a. 470 ; In re Hartman, 9 Abb. Pr. (n. s.) for a different road than that intended in 124. ^ the grant. Crosbie v. Chicago, &c. R. 1 Fall River Iron Works w. Old Colony Co., 62 Iowa, 189; 14 Am. & Eng. R. R. Co., 5 Allen (Mass. ), 221 ; Cleveland, Cas. 463. See also Boston, &c. R. Co. v. &o. R. Co. V. Speer, 56 Ponn. St. 326 ; 94 Midland R. Co., 1 Gray (Mass.), 340. Am. Deo. 84. 8 Brigham v. Agricultural B. Co., 1 '^ And an injunction vpill lie to prevent Allen (Mass. ), 316. an abuse of its discretion by the company. * See also Central R. Co. v. Pennsyl- Central E. Co. v. Pennsylvania R. Co., 31 vania R. Co., 81 N. J. Eq, 47.5 ; 82 N, J. N. J. Eq. 475 ; 32 N. J. Eq. 755. The Eq. 755 ; Com. v. Franklin Canal Co., 21 company cannot make use of the discretion Penn. St. 117. vested in it to construct the rpad in a 6 Savannah, &o. R. Co. ». Shiels, 33 manner different from that contemplated Ga. 601. See also Belleville B. Co. v. by its charter. Boston, &c. R. Co. ».' Gregory, 15 111. 20. Lowell, &c. R. Co., 124 Mass. 368. Nor « Strong v. Beloit, &o. B. Co., 16 Wis. can it make use of a granted right of way 635. SEC. 270. J LOCATION: SELECTION OF BY COMPANY. 1101 map only of a portion of the route, filed by the company in the proper office, cannot restrict the company to the construction of so much of the road only as is marked out upon the map, when the articles of association require it to be extended further. Even if the company has treated the map as a map of the whole road, yet the articles of association are superior to it, and cannot be controlled by it.^ The fact that a railroad was constructed, and has ever since been used, and that its location is on the town records, is sufficient proof of a location ; and a certified copy from the records, of what purports to be a location in that town, is admissible to show that such a paper was on record.^ If the line as located interferes with another line previously located, and neither the charter nor general law gives a right to one railroad to use any land previously located and appropriated by another company, the company making the last location has no right to interfere with the first location except for the purpose of crossing, particularly when the second- company is proceeding in good faith and with reasonable diligence to construct its road ; and this has been held to be the case even though the line lies through a narrow pass through which two roads cannot be built.* ' Mason v. Brooklyn, &c. K. Co., 35 Barb. (N. Y.) 373. 2 Hatch V. Vermont Central R. Co., 28 Vt. 142. ' Contra Costa, &c. B. Co. v. Moss, 23 Cal. 323. But see opinion of Shaw, C. J., in Springfield v. Conn. River R. Co., 4 Cush. (Mass.) 63, where he says : " Land appropriated to a public walk or training-feld may, in case of war, be re- quired for a citadel, when it is the only ground which, in a military point of view, will command all the defences of a place, in case of hostile attack. Chesapeake, &c. Canal Co. v. Baltimore, &c. E. Co., 4 G. & J. (Md.) 1 ; Boston "Water Power Co., V. Boston, &c. R. Co. 23 Pick. (Mass.) 360 ; Wellington v. Middlesex, 16 Pick. (Mass. ) 87, 100. But when it is the inten- tion of the legislature to grant a power to take land already appropriated to another public use, such intention must be shown by express words, or by necessary impli- cation. There may be such a, necessary implication. Every grant of power is in- tended to be efficacious and beneficial, and to accomplish its declared object ; and carries with it such incidental powers as are requisite to its exercise. If, then, the exercise of the power granted draws after it a necessary consequence, the law con- templates and sanctions that consequence. Take the familiar case of the Notch of the White Mountains, a very narrow gorge, which affords the only practicable passage for many miles through that mountain range. A turnpike road through it has already been granted. Suppose the gorge not wide enough to accommodate another road, but the legislature of New Hamp- shire, in order to accommodate a great line of public travel, should grant power to lay a railroad on that line; they would, by necessary implication, grant a power, and if they had the power, it must be de- rived from necessary implication, though no such implication appears on the face of the act. If it exists, it must arise from the application of the act to the subject- matter, so that the railroad could not, by reasonable intendment, be laid in atiy other line. The grant of a right is, by reasonable construction, a grant of power to do all the acts reasonably necessary to its enjoyment. It is not an absolute or physical necessity, absolutely preventing 1102 LOCATION AND OONSTEUOTION. [CHAP. XV. The question in such a case is one which the legislature alone can solve, and beirig established for the same purpose, it cannot reason- ably be implied that the legislature intended to destroy the fran- chise of the company which had already located and established its route.^ When grants of a definite location are inconsistent, the rule is that the earlier grant must prevail ; ^ this in pursuance of the principle that in all cases of public grants, lands already appropriated to another purpose are excepted from such grants though the excep- tion is not specifically provided for.? But where the grants are indefinite, leaving the exact location to be selected by the companies, the right to specific lands taken will belong to the company making, the prior location.* its being laid elsewhere; but if, to the minds of reasonable men, conversant with the subject, another line could have been adopted between the termini, without tak- ing the highway, reasonably sufficient to accommodate all the interests concerned, and to accomplish the objects for which the grant was made, then there was no such necessity as to warrant the presump- tion that the legislature intended to au- thorize the taking o( the highway." When a railroad company has acquired a specific right of way, that right cannot be taken away by statutory proceedings at the suit of another railroad company j yet when the right of way as claimed is one hundred feet wide, "which common know- ledge teaches is ample space for two or more lateral tracks," and another railroad company can obtain room for its track along this space through a mountain gap without obstructing the free and ample use of the same by the first, the right to do so may be obtained through statutoiy pro- ceedings in the nature of adquod damnum. A company claiming a road-bed and right of way through a narrow mountain gap cannot enjoin by bill in equity statutory proceedings instituted by another company against the owners of the land seeking to condemn a right of way for its road, and not making the first company a party. Anniston, &c, R. Co. V. Jacksonville, &c. K. Co., 82 Ala. 297. 1 This matter, so far as it relates to mountain gorges, caiiona, passes, and defiles on government lands, is now regulated by an act of Congress, approved March 2, 1875, providing in effect that all railroads shall occupy such passes, &c., in common. See also Denver & Rio Grande R. Co. v. Denver, & R. Co., 17 Fed. Rep. 867, in which it was held that under this act a company having the prior right of' way may enjoin intrusion thereon by another company until facts are shown making it necessary for such other company to come under the right of way; and the defend- ant road may under a cross bill, by show- ing the necessary facts, have its right to enter upon such right of way enforced by a final decree. Sea Housatonic R. Co. v. Lee, &o. R. Co., 118 Mass. 891. * Chesapeake, &c. Canal Co. ■». Balti- more, &c. R. Co., 4 Gill & J. (Md. ) 1 ; Sioux City, &c. R. Co. v. Chicago, &c. R. Co., 27 Fed. Rep. 70 ; 26 Am. & Eng. E. Cas. 160. ' Wilcox V. Jackson, 13 Pet. (U. S.) 498 ; Boston, &c. R. Co. i). Lowell, &o. R. Co., 124 Mass. 368. * New Jersey So. R. Co. v. Long Branch Com'rs, 39 N. J. L. 33 ; Boston, &c. R, Co. V. Lowell, &c. R. Co., 124 Mass. 368 ; Sioux City, &c. R. Co. v. Chicago, &o. R. Co., 27 Fed. Rep. 770 ; 25 Am. & Eng, R. Cas. 150; Atchison, &c.. R. Co. v. Meeklin, 23 Kan. 167; New Brighton, &c, R. Co. «. Pittsburgh, &c. R. Co., 106 Penn. St. 13. Where two railroad companies were incor- porated to complete independent lines across the State, only the termini of eithet SEC. 271.] CHANGE OF LOCATION. 1103 Sec. 271. Change of Location. — However it may be with railway companies formed under general laws, when a company established by a special charter has once fixed upon its location, and taken the necessary steps to establish it, its power of election having been exercised, it has no power to recall or change it without the consent of the legislature, even though the change only involves, the exer- cise of a power which they possessed and might have exercised under the charter in the first instance.^ Thus, a railroad company was incorporated .by a charter which authorized it to construct a railroad commencing at an eligible point in the city of Brooklyn and , extending to Jamaica. The company fixed the western terminus in Brooklyn, and adhered to the particular location originally selected for that terminus for several years. It was held that this selection concluded the company, and that they had no franchise to extend the road through other streets in Brooklyn which they could assign to another company .^ If the railway company is not built under the right of eiainent domain, but the company covenants with the owner of the land over which a part of its line extends, that it will change that part of the line upon his lands, upon a certain considera- tion being given to it, so as to enable the owner to mine under the road, it was held that upon the failure of the company to remove its road upon the requisite notice being given it by the tenant, the ten- being prescribed, there being no- apparent Ch. (N. Y.) 323; Mississippi, &o. R. Co. or necessary conflict of tlie routes, it was v. Devaney, 42 Miss. 555 ; State v. Nor- held that the company which first surveyed walk, &o. T. Go., 10 Conn. 1.57 ; Moor- and adopted a route, and filed the survey head v. Little Miami R. Co., 17 Ohio St. in the proper office, were entitled to hold 340 ; Hastings v. Amherst, &c. R. Co., 9 it, without reference to the date of the Cush. (Mass.) 596; Works d. Junction, R. charters, both being granted at the same Co., 5 McLean (U. S. C. C. ), 425 ; Little session of the legislature. But the mere Miami R. Co. w. Naylor, 2 Ohio St. 235 ; experimental survey of a route does not Buffalo, &c. R. Co. v. Pottle, 23 Barb, confer any vested right. Moms, &c. R. (N. Y. ) 21 ; People v. N.Y., &c., R. Co,, Co. V. Blair, 9 N. J. Eq. 635. In New 45 Barb, (N. Y.) 73 ; Doughty v. Somer- York, &c. R. Co. v. New York, &c. R. Co., ville, &c., R. Co., 21 N. J. L. 442 ; Mor- 11 Abb. N. Cas. (N. Y.) 386, a company ris, &c. R. Co. v. Central R. Co., 31 N. J. being the owner of the land, it was held L. 205; Mason v. Brooklyn, &c. R. Co., that another company could not, by 35 Barb. (N. Y.) 37. But in this case it merely filing a map of its route, prevent was held that when a map of only a part such owner fi-om constructing its road on of the location is filed, the company may its own land, although the land was in- treat it as no location at all, and subse- cluded in the location filed by the second quently file a new map of the whole loca- company. See 19 Am, & Eng. Ency, Law, tion, changing the location as given in the 831. first map. 1 Brigham, v. Agricultural, &c. R. Co., ^ Brooklyn Central R- .Co. ». Brooklyn 1 Allen (Mass.), 316; Hudson & Del, City E, Co.. 32 Barb. (N.' Y.) 358, Canal Co. v. N, Y., &c, K, Co,, 9 Paige 1104 LOCATION AND CONSTEUOTION. [CHAP. XV. ant might maintain an action aga;inst it therefor in the name of the landlord, because the removal of the road not involving the exercise of the power of eminent domain, it had authority to change its loca- tion, and the contract was valid.^ If the charter confers authority to 1 Mine Hill, &a. E. Co, v. Lippinoott, 86 Penn. St. 468. A railway company having located its road, its powers to re- locate, and for that purpose to occupy the land of another or the public street, ceases. Little Miami E. Go. v. Naylor, 2 Ohio St. 235. And an authority to change the lo- cation of the line, during the work, does not imply power to fchange it after the road is complete. Moorhead v. Little Miami E. Co., 17 Ohio, 340. The same view is maintained by Lord Eldon, in Blakemore V. Glamdrganshire Canal Co., 1 My. & K. 154. But a different rule is intimated in South Carolina E. Co., ex parte, 2 Eich. (S. 0. ) 434. But see Canal Go. o. Blake- more, 1 01. & Fin. 262 ; State v. Nor- walk, &o. Tp. Co., 10 Conn. 157 ; Turn- pike Co. V. Hosmer, 12 Conn. 364 ; Louisville, &c. Tp. Go. «. Nashville, &a. Tp. Co., 2 Swan (Tenn.), 282, where the proposition of the text is maintained. But in South Carolina E. Co. v. Blake, 9 . Eich. (S. C. ) 229, it is held that a railway company have the same power to acquire land, either fty grant or by compulsory proceedings, for the purpose of varying, altering, and repairing their road, as for the original purpose of locating and con- structing it ; but that the company are not the final arbiters in determining the exigency for taking the land. The peti- tion of the company for taking the land should allege in detail the 'necessity for taking it, and the land-oWngr may traverse these allegations, and in that case this is tried as a preliminary question. It has been held that a grant to a railway com- pany to construct their road between two towns gave them implied authority to con- struct a branch to communicate with a depot and turn-table, on a street in ^one of the towns (New Orleans) off the direct line. Knight v. Carrolton E. Co., 9 La. An. 284 ; New Orleans, &o. E. Co. o. Sec- ond Municipality, 1 La. An. 128. Deviation. —A slight deviation from the route prescribed in the charter will not release the stockholders from the obliga- tion of their subscriptions ; but any sub- stantial deviation will have that effect. The precise line of distinction between the two classes of cases must be left to the. , construction of the courts in each particu- lar case. The stockholders may enjoin the company in the (iourse of construction from making an essential deviation, and after the road'is completed, the company ma.y, 'by Siiire facias, be called to acco'unf for not building upon the route indicated in their charter. But where all interested acquiesce in the route adopted, until their road is completed, it will require a. very clear case to induce the courts to interfere. Ashtabula, &o. B. Co. v. Smith, 15 Ohio St. 328 ; Champion v. Memphis, &e. E. Co., 35 Miss. 692; Fry v. Lex., &c. E. Go., 2 Met. (Ky.) 314 ; Aurora v. West, 22 Ind. 88 y Smith v. Allison, 23 Ind. 366; Miss., &c. E. Co. V. Cross, 20 Ark. 443, 463; Illinois, &c. E. Co. v. Cook, 29 111. 237 ; K. E. Co. V. Marsh, 17 Wis. 13 ; Com. v. Erie, &c. E. Co., 27 Penn. St. 339 ; Pont- chartrain E. Co. v. Lafayette, &c. E. Co., 10 La. An. 741; Hitchcock v. Danbury, Sic. E, Co., 25 Conn. 516. Deviations are allowed within certain limits, and espec- ially where the consent of the land-owners can be secured. In England, deviations are permitted by statute within certain definite limits not to exceed one hundred yards, tp be measured from the line de- lineated upon the plans to the actual medium filum of the railway as con- structed ; and it is held that the fact that the embankments extend beyond the dis- tance is no violation of the right of devia- tion allowed by the statute. Payne v. Bristol Ey. Co., 6 M. & W. 326. In this case Parke, B., stated his opinion to be that a deviation beyond one hundred yards could not be made even with the consent of the land-owners, but that the fact that the cuttings or embankments extended only beyond that distance did not render the acts of the company unlawful. But it has been held that where a tunnel is marked upon the plans, it must be made SBC. 271.J CHANGE OF LOCATION. 1105 change the location for certain specified reasons, it can only be changed for some one of -the reasons named in the charter.^ Thus, a railway company had authority to vary the route and change the location of its route if it should find any obstacle in continuing its > first location, either by the difB.culty of construction or-procuring the right of way, or whenever a better or pheaper route could be had. It was held that this did not authorize the company to relocate its line because a particular town on the selected route would not con- tribute towards its construction, or to abandon and disregard the points named in the charter, but only to change its route for some of , the causes stated.^ Nor would such, provision in the charter war^ rant a change in the location after the road is built, even for any or all, the causes nalmed therein.^ Such power to relocate may be invoked at any time before, but not after, the road is constructed.* exactly as there delineated, and that the general right of deviation does not apply in such cases. Little v. Newport, &c. Ry. Co., 12 C. B. 752. Lands within the line of deviation may be taken for branch rail- ways (Sadd V. Maldou, &o. Ry. Co., 6 Exch. 143) or for the general necessary purposes of the road. Clother ii. Midland Ry. Co., 2 Phillips, 469. See also Evens- field V. Middlesex Ry. Co., 3 De G. & J. ' 286 ; Dodd v. Salisbury, &c. Ry. Co., 5 Jur. (n. s. ) 782. ' Where the charter or general law au- thorizes the directors to change the loca- tion of the road by-either a majority or a two-thirds vote, in order to effect a legal change in location it is not necessary that the new route should be exactly designated in the resolution or vote effecting the change. Matter of New York, &c. R. Co., 88 N. Y. 279. ^ Works V. Junction R. Co., 5 McLean (U. S.), 425 ; In re New York, &c. R. Co., 88 N. Y. 279. See Mississippi, &c. R. Co. w. Devfiney, 42 Miss. 555. ' Moorhead v. Little Miami E. Co., 17 Ohio St. 340. * Atkinson ■». Marietta, &c. R. Co., 15 Ohio St. 21. Where a railway company has received from private individuals donations of land, subscriptions of stock, and payments in money, in consideratioin that it should locate its road at a particu- lar place, and allow private side-track and warehouse privileges in connection there- with, the company will not he permitted to effectuate a change in fact, though not in name, of the line of its road away from such place, by getting up a new corpora- tion, and constructing a new road parallel with its old one, under a different charter, and permitting its old line to go to decay, without making compensation to the parties with whom it has contracted as aforesaid. Chapman v. Mad River &c. R. Co., 6 Ohio St. 119. In a Louisiana case a railway company in the city of New Orleans, which has been authorized by the city . to change the track of its railroad, cannot be enjoined from so doing by an individual property-holder situated on the ling of the road, on the ground that such change would likely prove detrimental to the public health, and would therefore work an irreparable injury to him. Hoyle V. New Orleans City E. Co., 23 La. An. 535. A right to change location, "either for the difficulty of construction, or of procuring a right of way at a reason- able cost, or whenever a better and cheaper route can be had," does notvauthorize a company to relocate, because a particulkr' trfwn on the selected route willi not con- tribute to the route. Works v. Junction R. Co., 5 McLean (IT. S.), 425. The act incorporating the Little Miami R. Co. does not confer upon the company the right to relocate its road, after completing it upon the first location, and to condemn other property for its uses. Moorhead v. 1106 LOCATION AND CONSTRtJCTION. [OHAP. XV. Under general statutes authorizing the construction of railways, unless the power is expressly given by the statute, companies formed in pursuance thereof have no authority to build any other Little Miami R. Co., 17 Ohio St. 341 ; Atkinson v. Marietta & Cincinnati R. Co., 15 Ohio St. 21. Railway companies may make experimental surveys at pleas- ure, before finally locating their route. But they cannot have experimental suits at law, as a means of chaffering with land-owners for the cheapest route. The poWer of taking any man's land by such company is exhausted by a location. It cannot be indulged with another choice. Neal 0. Pittsburgh & Connellsvijle R. Co., 2 Grant's Cases (Penn.), 137. Where, by the> terms of the charter, much is left to the discretion of the officers of a com- pany in respect to the location and route of the road, their selection should not be disturbed, unless they have clearly erred. Hentz V. Long Island R. Co., 13 Barb. ' (N. Y.) 646. Indped all railroad charters that do not directly express the contrary must be taken to allow the exercise of such a discretion in the location of the route as is incident to an ordinary practical survey, but not deviating substantially from the course and .direction indicated by the charter. Southern Minnesota R. Co. V. Stoddard, 6 Minn. 150. In New York under the general railroad law, no person is authorized to apply to a justice of the Supreme Court for the appointment of commissioners to examine the proposed route of a railroad, and affirm or alter the same, except one whose lands the company desires to take for its use, and after pro- ceedings have been commenced for that purpose by the company. And the com- missioners thus appointed are to examine the proposed route, and hear the parties before deciding ; and the decision must be confined to the rights of the parties heard, and consistent with the rights of the pub- lic. People V. Tubbs, 59 Barb. (N. Y. ) 401. Where, in a proceeding under the general railroad act of 18S0, as amended by the act of 1870, on the petition of a land-owner for the appointment of com- missioners to change the location of the route of a railroad as surveyed by the com- pany, it appears that he has not given notice of the application for the appoint- ment of commissioners to an individual whose land will be affected thereby, such proceeding is wholly void. Norton v. Wallkill Valley R. Co., 63 Barb. (N. Y.) 77, 1872. Although the general rail- road act does not, in terms, declare that the commissioners shall have jurisdiction of the entire subject of the location of the route through the county in which the land of the person applying for their ap- pointment is situated, still, that is the true intent and construction of thfe act. In the matter of Long Island R. Co., 45 N. Y. 364. The power of the commis- sioners over the proposed route is not re- stricted to that part of it wliich lies with- in the bounds of the land of the party procuring their appointment, but they may make any alteration of the proposed route within the county which may be necessary } but they have no power to so change a portion of the proposed route as to leave it disconnected at either end with the other portions. People ex rel. Erie, &c. R Co. V. Tubbs, 49 N. Y. 356 ; 69 Barb. 401. A road 24 miles long was au- thorized " from a point on the Pennsyl- vania railroad, at or near Parkesburg." It was held that a connection one mile and a half east of Parkesburg was not a transgression of the act perse. The only question is, has the company exceeded a discretion on the subject apparent on .the face of the act of incorporation ! Parke's Appeal, 64 Penn. St. 137. Where a company is authorized to extend its road to a point named, beyond its original terminus, such authority will not justify the building of such extension from some point upon the original line other than the terminus. Where a company is au- thorized to build branch roads "in the several counties through which it passes," it will not thereby be permitted to build a branch road commencing in one county and terminating in another. Works v. .Junction R. Co., 5 McLean (U. S.), 425, See, generally, 19 Am. & Eng. Ency. Law, pp. 829 et seq. SEC. 271.] GHANGE OP LOCATION. 1107 or different railway from that designated in their articles of associa- tion, nor upon aijy other or different route from that designated in the map or description of their location filed under the statute.^ It would be placing an extraordinary power in the hands of railway companies if, as is sometimes said, " railway companies may relocate their roads at discretion; " and the various legislatures of this country have not yet deemed it wise to invest these companies with such power, and the cases cited to sustain this remarkable proposition will be found rather to defeat than to sustain it.^ In a Missouri case,* the question was whether under an authority to build branches to its road, it might build a line commencing near one of its termini, and which running in the same general direction formed virtually an extension of itS' main line ; and the court held that it might, as such line was a branch of its road, although the effect might also be to extend it. And moreover, the company had secured and owned the right of way before the time Mmited by its charter, within which the. road should be constructed, had expired. In mosl of the States where general railroad laws, exist; provision is made for a change of location if, upon application to the railroad commis- sioners or other officers or board designated, or a certain court, such change is deemed necessary and desirable ; but after a railway is located and constructed, the right of eminent domain cannot be in- voked to change the location unless the power to do so is expressly given in the charter or statute, nor otherwise than for the causes and in the manner provided therein ; * and generally, after its location has been filed, and the easement in the land involved in its route has thereby become vested in the company,^ it cannot, of its own motion and at its own pleasure and discretion, change its location* 1 See the. case of Baffalo, &e. E. Co. Midland E. Co., 1 Gray (Mass.), 340; V. Pottle, 23 Barb. (N. Y.) 21. In this San Franoiseo, &c. B. Co. v. Mahonejr, case it was held that such a change of 29 Cal. 112; Hazen ». Boston & Maine route, even if the company had the power R. Co., 2 Gray (Mass.), 574 ; Old to make it, — which it was held it did not Colony R. Co. ». Miller, 1 25 Mass. 1 ; have, — would involve the release of all Charlestown Branch R. Co. v. Com- the subscribers to the stock who had not missloners, 7 Met. (Mass. ) 78 ; Ham i/, assented to the change, Salem, 100 Mass. 380 ; Davidson i'. ^ Mine Hill, &c. E. Co v. Lippincott, Boston & Maine R. Co., 3 Cush. 86 Penn St. 468. (Mass.) 91 ; Whitman v. Boston & Maine I 8 Atlantic, &e. B. Co. B. St. Louis, 66 R. Co., 7 Allen (Mass.), 326; Boynton Mjo. 228, reversing 3 Mo. App. 315. v. Peterborough, &c. R., 4 Cush. (Mass.) * Works V. Junction E. Co., 5 McLean 467. (U. S. ), 425. ^ Mississippi, &o. E. Co.'o. Devaney, 42 6 Boston & Providence R. Co. d. Miss. 555 ; 2 An^. Rep, 608 ; So. Carolina 1108 LOCATION AND CONSTECTCTION. [CHAP. XV. But under special provisions of its charter, or of the general law, it; may, when necessity and the public interest require it, or for any reason specifically named therein, make such change in the manner provided by statute ; and any attempt to make such change of its own motion where such necessity does not exist will be enjoined by a court of equity.^ But in some of the States it is held that be/ore its road is constructed it may, where the statute warrants it, ohange its location at discretion even after it has been fixed by it,^ but in no case, after the road is constructed, where such change involves the exercise of the right of eminent domain, and as a rule, after the location is filed as required by law? Nor even where the statute authorizes a change of location can there be a change of termini, but such change must be confined to the cliange of route between the same termini.* In some cases, a railway is located under a con- tract between the company aud third persons whereby, by reason of some valuable consideration, the company agrees to and does /ocate its road over a certain route ; and whe're such a contract exists, the company will not be perniitted, eve^ when authorized by statute to change its location, to make such a change of location as will essentially change the route or operate as a viola- tion of its contract ; and a court of equity will restrain the company from making the change, or will decree a specific performance of the contract, or, if un9,ble ' to give relief in either of these modes, will decree the payment of such damages as the party ought to have for K. Co. V. Blake, 9 Rich. (S. C.) L. 228 ; branch voad to continue from its terminus Knight I). Carrolton E. Co., 9 La. An. eastward to the Mississippi river, nor 28 i; So. Carolina E. Co., ex parte, 2 treat a track laid between these- points as id- 434. ■ a mere switching or spar track. Atlantic, '^ So. Carolina R. Co. v. Blake, 9 &o. E. Co. v. St. Louis, 3 Mo. App. 315 ; Rich. (S. C.) L. 228 ; State v. Norwalk & 66 Mo. 228. Danbury T. Co., 10 Conri. 157. The « Mahaska County R. Co. v. Des amended charter of the Pacific E(iilroad Co. Moines Valley R. Co., 28 Iowa, 437. In gave the right to construct a road " from New York a relocation is provided for, the Mississippi rive;, or any point in the upon a petition by the railway company to city ot St. Louis," and its charter required a justice of the Supreme Court for the that its roads should be commenced within appointment of commissioners, which must seven years, and completed within ten be served upon all the parties affected by years thereafter. The company chose the such change in the location. People point at which it would comraeuoe, and ex rel. v. Lookport, &c. E. Co. 13 Hun built its road westward from that point. (N. Y), 211. It was held that having maintained that » Neal v. Pittsburgh, &c. E. Co., 2 location for twenty years, it could not Grant's Cas. (Penn.) 187. then change hs terminus ; and that, hav- * Atty.-Gen. i>. West Wisconsin R. Co., ing failed to build its branch roads within 36 Wis. 466. the time prescribed, it could not build a SEC. 271.J CHANGE OF LOCATION. 1109 the breacli.i Of course, where the statute locates the road, there can be no change without the express assent "of the legislature. But where the statute definea the location of a railway, a reasonable construction will be placed thereon, with reference to the subject matter of the grant and the purposes to be effectuated,'^ and the 1 Chapman v. Mad River, &c. R. Co., 6 Ohio St. 119. 2 Cleveland, &C.R. Co. 17. Speer, 56Penn. St. 325 ; 94 Am. Dec. 84. The charter of a company required the road from N. to S. to be located as far north as a certain point, and in the location a curve was made in order to reach that point, and the road was thence continued towards S. by an acute angle ; it was held that the subsequent continuation of the railroad for about a mile and one-half northerly from the point of the angle to the' village of M. was unauthorized. Brigham v. Agricul- tural Branch R. Co., 1 Allen (Mass.)', 316. Where the time of filing the loca- tion with thft county commissioner.s was fixed by statute to be February 8, and it ^was deposited with their clerk on Fpbruary 6, it was seasonable, although a term of the commissioners' court did not occur nntil the following April. And where one year was given by statute for the alteration and amendment of the loca- tion, and the amended location was filed in the last day of the year, it was held that the filing was seasonable, although there was no session of the commissioners' court for several months after the filing. Eaton V. European & North American R. Co., 59 Me. 620. A location filed by a raUroad company with the county commissioners, by which alone the true location upon the ground cannot be fixed and ascertained, is nevertheless sufficient, if the location can be determined by the plan filed therewith. Grand Junction R. Co. V. Comm'rs of Middlesex, 14 Gray (Mass.), 553. , Equity will not re- strain the directors of a railroad company unless it is shown that they wantonly or capriciously disregard the rights of others. Anspach v. Mahanoy & Broad Mountain R. Co., 5 Penn. 491. The Midland R. Co. was authorized to locate and con- struct a railroad "commencing at some convenient point on the Norfolk County Railroad ; thence through the southerly part of Dedham ; thence through or near the westerly part of the towns of Canton and Milton." It was Ijeld that a location, commencing at a point on the Jforfolk County Railroad in South Dedham, and not departing from that road at once, but running northerly upon it for more than two miles, and then approaching within two hundred rods of the north-westerly corner of Canton, and running near the westerly boundary of Milton, was author- ized by the statute. Boston & Provi- dence R. Co. V. Midland K. Co., 1 Gray (Mass.), 340. An unrestricted grant au- thorizing the building of a railroad from one designated point to another carries with it the authority to cross a navigable stream,, if the raih'oad cannot reasonably be constructed without doing so. Fall River Iron Works Co. v. Old Colony & Fall River R. Co., 5 Allen (Mass.), 221. No person has the right to object to the location of a railway on the ground of damage to l\is property, unless his title or possession extends back to the time when the land was taken by the company. Hentz V. Long Island R. Co., 13 Barb. (Nl Y. ) 646. A company was authorized to locate its road by the most direct and cheapest route ; it was held that after the location and construction had become complete, the exercise of the discretion of the company i!n the location could not be reviewed. If the act of location had been voidable, none but the common- wealth could call the company to account. Cleveland, &c. R. Co. v. Speer, 56 Penn. St. 325 ; 94 Am. Dec. 84. A railway company, in determining upon its route, acts arbi- trarily, and is not required to consult any one ; and no one is entitled to any notice, . on the subject, until the route has been actually designated. Norton v. Wallkill Valley R, Co., 61 Barb. (N. Y.) 476. Under i charter which fixes one terminus of a railroad at or near a certain point, a large discretion is conferred upon the railroad company in locating ita road, the mo LOCATION AND CONSTEUCTION. [CHAP. XV. mere enumeration of the places through which the road is to pass will not be held to require that it shall pass through them in the order named.^ Thus, in the case last cited, the Lancaster & Sterling Branch Eailroad Company was authorized to locate its road com- mencing at a -certain point,' "thence running through Acton, Sud- bury, Stow, Marlboro, etc." It was held, that the company was not obliged by the terms of the act to locate its road through the towns in the order named, but that a location from Acton through Stow to Sudbury, and thence through Stow again to Marlboro, was a suffi- cient compliance with the requirements of the act. If a railway is located upon a certain line of a municipal corporation, a subsequent change of the lines of such corporation will not change the lopation of the railway, but it must be located with reference to the lines as they existed when the charter was granted.^ From what has been saicjl it will be seen that, until its location is filed according to the statute, a railway company may make experimental surveys, and exercise its discretion as to the location of its line ; but after Us loca- tion is filed, unless the statute confers upon it the power to do so, its right of election is gone,^ and it cannot change its location, in any essential particular where the right of eminent domain is involved, although slight deviations within the charter limits will not be regarded. Even where the statute confers upon a railway company the right of changing its location at any time before' its actual con- struction, the right to do so only exists where there is necessity for the &hange, or the, public interests are to be served thereby ; and the conipany is subject to the supervision of the courts in respect to the change,. and cannot make it at its own discretion. After the road is actually constructed, the location cannot be changed where the exer- cise of the right of eminent domain must be invoked, except the statute has provided a mode therefor and the statute mode is pursued.* exercise of which will not be revised unless 830, the authorities are examined at groat it has clearly exceeded its just limits or length, and this conclusion, which is be- aoted in bad faith. Fall River Iron lieved to be correct, is there stated. "An Works Co. V. Old Colony & Fall River examination of these authorities will de- R. Co., 6 Allen (Mass.), 221. monstrate that the right of 'the company 1 Com. V. litchburg R. Co., 8 Cush. to change its location, m)A«j-c sM#cien« rea- (Mass.) 240. son exists, cannot be denied In all the 2 Com. V. Erie, &o. R Co., 27 Penn. ' cases denying this right, the decision was St. 839 I People u. Detroit, &o. R. Co., 87 based on the ground that there was no Mich. 195. • necessity for the change, and that a rail- 8 Neal I). Pittsburgh, &o. R. Co., 2 road company should not be allowed to Grant's Cas. (Penn.) 137. condemn land for a relocation merely • In 19 Am. & Eng, Enoy. Law, p, from caprice or for the benefit of individ. SEC. 272.] LOCATION: HOW DESCKTBED, ETC. 1111 Sec. 272. Location : How described : Maps and Plans. — In all cases where the statute defines the manner in which the route as located shall be described and define'd, the statutory method must be strictly pursued; but in any event, the survey or location filed in the offices in which it is required by statute to be filed should de- scribe the particular property taken, — either in itself or by reference to maps and profiles of the route filed therewith, and made a part of the record, — with precision and accuracy ; ^ as such description is the permanent record-evidence, not only of the amount, but also of the particular lands taken^ and is conclusive thereof ;- and parol evidence is not admissible to vary or change it,^ as the owner of the land has a right to know from such records precisely what portion of his lands are taken, and what are not.^ As previously stated, parol evidence is not admissible to aid the location, but a map or plan filed with the location, and referred to therein, and which does not require the aid of parol" evidence to explain and apply it, is admissi- uals." See the leading case of Mississippi, &c. R. Co. V, Devaney, 42 Miss. 555 ; 2 Am. Rep. 608. " The correct rule there- fore seems to be that while a railroad company may not change its location from motives of caprice, or for the sake of pri- vate individual convenience, it may vlo so whenever the interest or> the convenience of the public is to be subserved thereby, or it is essential to the accomplishment of the ends for which the road is being built." 19 Am. & Eng. Ency. Law, p. 830, citing, among other cases, Moorhead t>. Little Miami R. Co., 17 Ohio St. 340 j South Carolina R. Co., ex parte, 2 Rich. (S. C. ), 434 ; South Car. R. Co. v. Blake, 9 Rich. (SO, 228 ; New Or- leans, &c. R, Co. «. New Orleans, 1 La. An. 128 ; Atlantic R. Co. v. St. Louis, 66 Mo. 228 ; Eel River K. Co. v Field, 67 Cal.429; 22 Am. & Eng. R, Cas. 91 ; Atkinson v. Marietta, &d, R. Co., 15 Ohio St. 21. 1 Coe V. N. J. Midland R. Co., 34 N. J Eq. 105 ; Baker d. Gee, 1 Wall. (U. S.) 333 ; Morris, &c. R. Co. v. Blair, 9 N. J. Eq. 635 ; Pacific R, Co. i-. Lewis, 41 Cal. 489. In many cases it is provided that the location shall not be complete until the written description or survey is filed or recorded ; this requirement is usually made where grants of public land are made to railroads. See Baker v. Gee, 1 Wall. (U. S.) 333 ; Western Pac. R. Co, V. Tevis, 41 Pal. 489 ; Hannibal, &c. R. Co. V. Smith, 41 Mo. 310. But in Kansas it is not required that such description shall be filed before condemnation pro- eeedings can be instituted. Missouri River R. Co. V. Shepard, 9 Kan. 647. Lowell, &o. R. Co. v. Boston, &c. R. Co., 7 Gray (Mass.), ^27 ; Hazen v. Bos- ton, &o. R. Co., 2 Gray (Mass.), 27, 574. 8 Eohlhepp V. West Roxbury, 120 Mass. 596 ; Strong v. Beloit, &c. R, Co., 16 Wis. 635 ; Housatonic R. Co. v. Lee, &o. R. Co., 118 Mass. 891; State v. Bai- ley, 19 Ind. 452 ; New York, &c. R. Co. ». New York, &c. E. Co., 11 Abb. (NY.) N. Cas. 386; Penn. R. Co. v. Porter, 29 Penn. St. 165 ; Heise v. Pennsylvania E. Co., 62 id. 67 ; Prather v. JefiFersonville, &c. R. Co., 52 Ind. 16 ; Anderson, &c. R. Co. V. Kefnodle, 54 Ind. 314 , State v. Armell, 8 Kan. 288 ; Vail v. Morris, &c. R. Co., 9 N. J. Eq. 189 ; Callendar ». Painesville, &o. R. Co., 11 Ohio St. 516. The description is sufficient, if by the aid of maps or plans of the route filed with the location the location can be determined with reasonable certainty. Grand Jnno- tion R. Co. V. Middlesex Com'rs, 14 Gray (Mass.), 655; Drury v. Midland E. Co., W Mass. 671. 1112 LOCATION AND CONSTEubllON. [CHAP. XV. ble to aid, but not to modify or control, a defective location.^ In New York, where by statute a map of the route is required to be filed, it was held that a map showing but a single line, and giving no information as to whether it was the centre or an exterior line, not showing the width of the road, and from which the line could not generally be accurately located by engineers on the ground, was insufficient.^ If a court of equity can under any circumstances order a definite location of a railroad, filed by the corporation with the county com- missioners as required by statute, to be reformed, upon evidence of a previous parol agreement between the corporation and the land- owner, and of a mistake by which the location filed does not con- form to such agreement, it can only be done.on satisfactory evidence that the railroad corporation made such an agreement or such a mis- take ; and evidence of an agreement made by the attorney of the corporation, authorized to settle land damages, and ratified by the managing officers of the corporation, but of which the attorney by mistake omitted to inform the president and directors, is not suflBi- cient.^ Although the location may be defective, yet if the company has taken possession of the land, and the owner has acquiesced therein, this will cure the defect and give certainty to the description as to that land.* jjlnd it seems that a defective or illegal location may be 1 Hazen v. Boston, &o. E. Co., 2 Gray part of its road closed thus : to a certain (Mass.), 674; Pinkerton v. Boston, &c. point, and thence "about 600 feet into R. Co., 109 Mass. 627 ; Grand Junction, depot No. 1 " (a parcel of land belonging Sua. R. Co. V. County Com'rs, 14 Gray to the company). "The above-described (Mass.), 563 J Hunt v. Smith, 9 Kan. line is the centre line of the railroad, and 137; Vailj). Morris, &c. R, Co., 9N. J. Eij. is traced in blue on the accompanying 189 ; Andover v. County Com'ra, 5 Gray plan." The plan was filed with the loca- (Mass.), 693 ; Mason v. Brooklyn City, tion. The blue line on the plan extended &c. R. Co., 35 Barb. (N. Y. ), 373 ; Quincy, across the street on which depot No. 1 was &c. R. Co., 54 Mo. 334 ; Portland, &c. situated, and into depot No. 1 ; but a R. Co. V. County Com'rs, 66 Me. 292 ; measurement of 600 feet according to the Wilson V. Lynn, 119 Mass. 174 ; Penn. R. plan from the said point extended into Co. V. Brewer, 55 Penn. St. 318 ; In re said street, but not quite across to depot Washington Park Com'rs, 52 N. Y. 131. No. 1. The location defined its width as 2 Albany R. Co. v. New York, &c. R. far as the street, but neither the location Co,, 11 Abb. (N. Y. ) N. C. 386. See also nor the plan defined it any farther. It was Converse v. Grand Rapids, &c. R. Co., 18 held that the location did not cover «ny Mich. 459 j In re New York, &0. R. Go. , part of depot No. 1. Pinkerton v. Bos- 62 Barb. (N. Y.) 86. As to technical ton, &c. R. Co., 109 Mass. 527. definition of a "survey" such as is re- ' Central Mills v. New York, &c. R. quired to be filed, see Attorney-General v. Co., 127 Ma«s. 637. Stevens,. 1 N. J. Eq. 869 ; 22 Am. Dec. « Duck River, &o. R. Co. v. Cochrane, 528. 3 Lea (Tenn. ) , 478 ; Drury v. Midland R. The location by a railroad company df a Co., 127 Mass. 571 ; Atchison, &c. R. Co. SEC. 272.] LOCATION: HOW DBSCEIBBD, ETC. ■ 1113 perfected by legislative confirmation.^ But a statute which ratifies and confirms the location of a railroad illegally made, and the rail- road as actually laid out and constructed, does not have the effect of exempting the company from liability for ^ injuries caused either to private or public rights by the manner in ■which they have con- structed or are maintaining part of the road at the time of its enapt- ment.^ But where a railway is located across a person's land by license, such license carries with it as full authority to do all neces- sary acts for the construction of the railway as would have been derived from a condemnation of the land.^ After the road is located, the company may maintain actions of "tort against any person for an unlawful entry thereon.* But the compatiy has no power or right to grant an easement of a footway, for persons to walk along or by the side of its tracks. Therefore there can be no prescriptive right or presumption of such a grant, though the appellants and others, own- ing houses along the line of the appellee's railway for twenty-five years, had used a private footway for some considerable distance over the lands of the appellee, alongside of, or between the tracks of, the road, from the houses to a public highway.^ And a parol license granted by the company to persons or to another corporation to pass over the location or to otherwise use it is revocable at any time.® In all cases where a railway company is called upon to justify its entry upon lands, the burden is upon it to show that the road is constructed, and the acts complained of were done within its loca- tion.^ After the lands have been condemned, the records of the court before which proceedings are required to be brought cannot be impeached collaterally, and are conclusive as to the company's V. Mecklim, 23 Kan. 167 ; Denver, &c. R. Hatton, 32 Vt. 43 ; Morrison ■». Bucks- Co. V. CaSon City, &c. R. Co., 99 U. S. port, &e. R. Co., 67 Me. 363 ; Bangor, &a. ' 463. See also Brock v. Old Colony R. Co., R. Co. v. Smith, 47 id. 34 ; Troy, &xs.. B. 146 Mass. 194 ; 33 Am. & Eng. R. Cas. Co. v. Potter, 42 Vt. 265. 196. * Sapp V. Northern Central R.'Co., SI 1 Com. V. Old Colony R. Co., 14 Gray Md. 115. (Mass.), 93 ; Salem v. Eastern R. Co,, 98 * Illinois Central R. Co. v. Godfrey, 71 Mass. 431 ; 96 Am. Dec. 650. 111. 500 ; Pennsylvania R. Co. v. Jones, 2 Salem v. Eastern R. Co., 98 Mass. .50 Penn. St. 417 ; Heyl v. Philadelphia, 431 ; 96 Am. Dec. 650 ; Com. v. Old Cnl- &c. R. Co., 51 Penn. St. 469. ony, &o. R. Co., 14 Gray (Mass.), 93. ' In re New York, &e. R. Co., 62 8 Bahcock v. Western R. Co., 9 Met. Barb. (N. Y.) 85 ; Crawford-sville, &c. R. (Mass.) 553 ; 43 Am. Dee. 411. See amte, Co. o. Wright, 5 Ind. 252 ; Hazen v. Bos- Chapter XI. ton, &o. R. Co., 2 Gray (Mass.), 574 ; At- * Greenville, &c. R. Co. v. Parttow, 14 lantic, &o. R. Co. v, SuUivant, 5 Ohio St. Rich. (S. C.) 237 ; Conn., &o. R. Co. v. 276. VOL II — 20 1114 LOCATION AND CONSTKUCTION. [CHAP. XV. ■rights.^ But a land-owner may question the validity of a location upon his own land, or he may dispute a location which is void under the statute.'^ '• Sec. 273. How Location may be lost. — Mere non-user will not defeat or impair the location'* unless it be permanent and entire ; but it may be defeated by permitting another company to take the land and, actually to construct its road thereon.* So, too, the owner of the fee may regain the title by an adverse use and occupancy thereof for the requisite statutory period, where its conduct has been such as to indicate its intention, to abandon the whole or a part of the location.^ The company loses all its rights in its location or in its right of w9,y by an abandonment.^ But it is jiot always easy to determine what amounts to an abandonment ; the determination of the question must depend upon all the facts and circumstances of the case as has already been obselved.^ But a company's property in its location is, as we have seen, different from that possessed in a right of way ; and an abandonment of a location is more easily pre- sumed than of a right of way. In the one case the comp'any has perfected its right to hold -and occupy the land within its right of way, while in the other case (that of a location) it merely has an in- choate right to acquire the land, a failure to exercise which within a reasonable time will operate as an abandonment.^ 1 Galena, &c. R. Co. v. Pound, 22 111. * Chesapeake, , &o. Canal Co. v. Balii- 399 ; Cleveland, &o. R. Co. v. Speer, 56 more, &c. K. Co., i ,G. & J. (Md.) 1 j Penn. St. 325 ; 94 Am. Dec. 84 ; Western Coe o, N. J. Midland R. Co., 31 N. J. Maryland R. Co. v. Patterson, 37 Md. 126 ; Eq. 105. Cleveland, &o. R. Co. v. Erie, 27 Penn. ^ N-Qrton v. London, &o. Ry. Co., 13 St. 380. Ch. Div. 268. 2 Newton v. Agrioul. Branch E. Co., « Hastings v. Bnrlington, &c. R. Co., 13 Gray (Mass.), 27 ; N. Y., Honsatonic, 38 Iowa, 816 ; Troy, &e. R. Co, o. Boston, &c. R. Co. V. Boston, &c. B. Co., 36 Conn. &c. R. Co., 86 N. Y. 107 ; 7 Am. & Eng. 196. R. Oas. 49 ; ante, § 233. 8 Hestonville, &e. R. Co. v. Philadel- ' Central Iowa, &c. R. Co. v. Moulton, phia, 89 Penn. St. 210 ; Barlow v. Chi- He. R. Co., 57 Iowa, 249 ; Atty-Gen. i». cago, &c. R. Co., 29 Iowa, 276 (non-user Eastern R. Co , 137 Mass. 48. As to for thirteen years owing to delay in con- what constitutes an abandonment, see ante, struction of road) ; Noll v. Dubuque, &o. - § 233. See also 40 Am. Dec. 464 n. R. Co., 32 Iowa, 66 ; People v. Albany, The failure for eleven years to exercise &c. R. Co., 87 Barb. 216 ; Ball v. Keo- a grant in the charter of a passenger rail- kuk, &c. B. Co., 62 Iowa, 751 ; 20 Am. way company of an optional circuit over & Eng. R. Cas. 375. A misuser of the another road, is such proof of an aban- location is a ground for which the owner donment of the franchise as will defeat of the fee may claim a forfeiture, but it the right as against other companies, does not, of itself, operate as a forfeiture. Girard College, &c. R. Co. v. Thirteenth, Proprietors v. Nashua, &c. R. Co., 104 &c. R. Co., 7 Phila. (Penn.) 620 Mass. 1'; 6 Am. Rep, 181. b See LafTerty v. Schuylkill, &c. R. SEC. 274.] DESCEIPTION OF TERMINI, ETC. 1115 SeC^ 274. Description of Termini : Construction of Words relating to. — The charter or the general law usually requires that a descrip- tion of the termini of the- road shall be given in the articles of asso- ciation of the company which are filed upon incorporation, or that such a description shall be contained in the map or plan filed with the articles. A substantial compliance with this is sufficient, and the articles are not affected by slight defects in the statements or descriptions.-^ Thus, it is sufficient where one terminus is given and the other is described as "at or near B.''^ or as "some eligible and convenient point in the county of S., there to connect '' with a named railroad.^ But it has been held that a petition for a highway and the report of the viewers thereon is too uncertain and indefinite to be acted upon where the proposed highway as beginning " at or near the residence of B."* Where the words "commencing at or near the city of Schenectady, and running thence on the north side of the Mohawk river," etc., were used in the charter of a company, it was held that it was thereby authorized to commence its railroad at some point on the north side of the. river, near the city, or at some suitable point on the south side at or within the city, and then to cross the river to the north side thereof, at its election, — the middle of the river forming the north boundary of the city. The right to build a .bridge, for the purpose of crossing the river with their railways, was therefore granted to the company by the act for its incorporation.* So where a railway was chartered, " to commence at some convenient point in the city of Brooklyn, and to terminate at Newtown, Queen's county, to be located iu King's and Queen's counties, and its length to be about twenty-five miles," there being both a town and village of the name of Newtown, and the boundary of the town being also the boundary of the city of Brooklyn, it was held that the natural and only consistent construction was, to regard Newtown as the village of that name, and thus extend the railway through a portion Co., 124 Penn. St. 297 ; 36 Am. & Eng. Warner v. Callender, 20 Ohio St. 190 R. Cas. 575; 19 Am. & Eng. Ency. Law, ("in or near X" sufficient). See also pp. 834-835 ; Henderson v. Central Pass. Fall Eiver Iron Works v. Old Colony R. E. Co., 21 Fed. Eep. 358 ; 20 Am. & Eng. Co., 5 Allen (Mass.), 221. R. Cas. 542. ' ' Chicago, &c. E. Co. v. Chamberlain, 1 Cayuga Lake R. Co. i>. Kyle, 5 Th. & 84 111. 333. Cook, (N. Y.) 659 ; 64, N. Y. 185 ; War- * DeLong v. Schimmel, 58 Ind. 64. ner v. Callender, 20 Ohio St. 190 ; Atty- See also Indianapolis, &c. IJ. Co. v. New- Gen. 0. West Wisconsin E. Co., 36 Wis. som, 54 Ind. 121 ; Griscom v. Gilmore, 16 466. N. J. L. 105. 2 Central R. Co. v. Pennsylvania E. 6 Mohawk Biidge Co v. Utica, &c Co., 31 N. J. Eq. 475 ; 32 N. J. Eq.' 755 ; E. Co., 6 Paige (N. Y.), 554. 1116 LOCATION AND CONSTRUCTION. [CHAP. XV, of both counties named, and not restrict it to the limits of the city of Brooklyn. It was also held that where the charter, as applied to the route indicated, defines a precise line, that line becomes as binding upon the company as if it formed a portion of the charter itself ; and that where a map is filed in conformity with the charter, which does not embrace the entire route indicated by the charter as applied to the subject-matter, in order to reconcile the apparent conflict the'map may be regarded as intended to give only a portion of the route ; or in case of irreconcilable conflict, the map must yield to the express provisions of the charter.^ Under a charter which fixes the termi- nus of a railway " at or near " a certain point, a large discretion is conferred upon the company in locating their roa^, which will not be controlled by the courts, unless for very clear excess, or where bad faith is shown. Thus where a company is empowered to extend its line " from a point at or near the present terminus of its tracks in Fall River, in a southerly direction to the line of Rhode Island," a location starting from a point on the line twenty-five hundred feet by the line of the railroad, northerly from the termination of the old tracks, was held authorized.^ The words " beginning from and running to," and the words " beginning or ending at," in a charter are held to be inclusive ; and if no contrary intent is shown in the statute, they authorize a location within such place.* So also of the 1 Mason ». Brooklyn, &c. R. Co., 35 the principle of the text hoth as to the Barb. (N. Y.) 373. The extension of the words " to" and " from." Hazelhurst v. boundaries of a city or town named as a Freeman, 62 Ga. 244 ; Moses v. Pitts- tenninus does not increase the powers of burgh, &c. R. Co., 21 111. 516 ("to" equi- the company correspondingly ; the loca- valent to " into ") ; Mason v. Brooklyn, tion must be confined to the old limits. &c. R. Co , 35 Barb. (N. Y.) 373 ; Smith Com. V. Erie, &o. E. Co., 27 Penn. St', v. Helmer, 7 Barb. 417 ; Farmers' Transp. 339 : Chope v. Detroit, &c. Plank R. Co., Co. v. Coventry, 10 Johns. (N". Y.) 389 ; 37 Mich. 195. Com. «. Erie, &c. R. Co., 27 Penn. St. 2 Fall River Iron Works v. Old Col- 339 ; "Western Penn. R. Co.'s Appeal, 99 ony, &o. R. Co., 5 Allen (Mass.), 221. Penn. St. 165 ; Tennessee,. &c. R. Co. v. But see Indianapolis, &c. R. Co. v. New- Adams, 3 Head (Tenn.), 596 ("from") ; son, 54 Ind. 121, where the word "near" Rio Grande R. Co. v. Brownsville, 45 Tex. in a location was held so indefinite as to 88. In South Carolina, however, where render the location void. by the charter of a railway they were an- il Thus authority to construct a road thorized to construct their road " from from Chicago to any point in the town of Charleston " to certain other points, it was E., authorizes'the construction of the road held that this gave them no authority to from any point within Chicago. Chicago, enter the city, but that the boundai? of &n. R. Co. V. Chicago, &o. R. Co., 112 the city was the fermmMs a quo. North- Ill. 589; 25 Am. & Eng. R. Cas. 168; east R. Co. v. P^yne, 8 Rich. (S. 0.) McCartney v. Chicago, &c. R. Co., 112 177. See Union Pacific R. Co. ■,-. Hall, 91 111. 611 i 29 Am. & Eng. R. Cas. 326. U. S. 342. In this last case the initial There are other numerous cases affirming point of the Iowa branch of the Dnion SEC. 274 a.] LOCATION OF EOADS. 1H7 word " between '' where authority is given to construct the road be- tween two designated places.^ The word " along " is restrictive ; consequently a charter for a railway " a,long " a certain river or high- way authorizes it to be built by the side of the river or highway, but not in or upon its bed.^ Sec. ■ 274 a. Contracts to influence Location of Road. — For reasons of public policy, the force of which are obvious, the company is not to be governed in the location of the railroad solely or princi- pally by considerations of private advantage ; it owes a duty to the public and to its stockholders to make the location so as best to assure its public utility and promote the interest of the shareholderis.^ Therefore, contracts to influence the location of the' road are void whenever they tend to prevent the discharge of this duty,* particu- larly when they" partake of the nature of a bribe to the oflBcers oi the company.* But subscriptions to stock or grants of land made in consideration of the location of the road through or near certain Pacific Railroad was fixed 'by the act of 'Congress of July 1, 1862 {12 Stat. 489), on the Iowa hank of the Missouri river. The order of the president, of, the United States, hearing date March 7, 1864, estabr lished and designated, in strict conformity to law, the eastern terminus of said hranch at a point on the western bound- ary of Iowa, east of and opposite a cer- tain point in the territory of Nebraska. The bridge constructed by the Union Pacific Company, over the Missouri river, between Omaha and Council Bluffs, in Iowa, is a part of the railroad. The com- pany was authorized to build it only for the uses of the road, and is honnd to operate and run the whole road, including the bridge, as one connected and contin^ uous line. See also Peavey v, Calais R. Co., 30 Me. 108. 1 Morris, &c. R. Co. v. Central R. Co., 31 N. J. L. 20.5. » Stevens ti. Erie R. Co., 21 N. J. Eq. 259. ' See also nrnte, § 184. « Bestor V. Wathen, 60 111. 138 ; Cook V. Sherman, 20 F"d. Rep- 167 ; 16 Am. & Eng. R. Cas. iifil. In the first of these cases, two persons owning a tract of land on the line of i railroad, contracted with the president of another road then being constructed and a firm of individuals who had contracted to build that road, to lay off the land in town lots, and, after selling lots to the amount of $4,800, to convey to the president of the road and to thg construction company an undivided half of the remaining lots. The president and the members of the construction ^company were to pay no money, but agreed to " aid, assist, and contribute to the building up of a town on said land •" It was held that if this contract was made to secure the location of the road at a plaice where it would not be of the greatest benefit to the stockholders of the road, then it was in the nature of a bribe and could not be enforced ; or if the plape where the parties agreed the road should be located, which was afterwards done, was the route best calculated to promote the interests of the stockholders and the public, and the offi- cers of the company were professing to hesitate between it and another line in order to procure the agreement, that was a fraud, and the contract could not he enforced in equity. The court therefore refused to enforce the performance of the contract. ^ Berryman u. Cincinnati, &c. R. Co., 14 Bush fKy.), 755; Bestor v. Wathen, 60 111. 138, ante ; Marshall v. Baltimore, &c. R. Co., 16 How. (U. S.) 314. 1118 LOCATIOX AND CONSTRUCTION. [CHAP. XV. places are not objectionable except where it can be made to appear that they necessitate a sacrifice of the interests of the public.^ Sec. 275. Construction of the Hoad : Consequential Damages. — The charter of a railway company is granted Tipon the implied con- dition that its road shall be constructed, maintained, and operated in a careful and prudent manner, and so as to produce as little damage as possible to adjacent owners, and an action lies against it for injuries resulting from a breach of this condition.^ We have 1 Missouri Pao. R. Co, w.Tygard, 84 Mo. 263; 22 Am. &.Eng. R. Gas. 54 ; Mc- Clure ■». Missouri River E. Co., 9 Kan. 373 ; Stowell «. Stowell, 45 Mich. 364 ; 9 Am. & Eng. R. Cas. 598 ; Cumberland, &c. R. Co. V. Babb, 9 Watts (Penn.), 458; Sagman, &c. R. Co. v. Chappell, 56 Mich. 190 ; 22 Am. & Eng. R. Cas. 16. In every municipal subscription that is made in aid of a railroad, it is a part of the agreement that the road shall be located through or near the town. Such agree- ments have never been objected to. See ante, Chapter VII., "Municipal Sub- SORIPTIOKS." In the case of Hoard v. Chesapeake, &c. R. Co., 123 U. S. 222, H. executed with the C. & 0. Road an agreement in writing, professing to convey for valuable consideration certain lots through which the company's road was expected to be built, and containing a clause that such grant was on the condition that the prop- erty should revert to the grantor, his heirs or assigns, in case it should ever cease to be used for railroad purposes ; containing also a covenant that A. should have leave to connect a single branch with the rail- road at a point near his hotel, and that the company should erect lawful fences, etc. It was held that such an agreement did not constitute a contract on the part of the company to build its road through such lots which could be enforced by a decree for specific performance. Such a contract £\s,well as the law contemplates the right of a company to change its route before being built, and to abandon it afterwards ; and if complainant is in- jured thereby, his only remedy is in an action at law. Morrill v. Wabash, &c. R. Co., 96 Mo. 174 ; 36 Am. & Eng. R. Cas. 425. ^ Thus where the declaration alleged that the plaintiff was possessed of a cer- tain house, situate, etc., and that the defendants (a railway company) were mak- ing a railway and excavations, etc., near thereto and to a certain other house, whereupon it was their duty to take proper precaution in making the said rail- way, etc., but that the defendants, not regarding their duty, did not take, etc., but so carelessly, etc., proceeded in the works, without taking proper precautions to prevent the house near the house' of the plaintiff from falling against the plain- tiff's, that for want of due, and proper precautions on the occasions aforesaid, the said house near the house of the plaintiff gave way and fell against it, whereby the plaintiff's house was greatly injured, etc., — it was held, on general demurrer, that the breach contained a sufficient allegation of the injury to the plaintiff having been caused by the neglect, carelessness, and unskilful conduct of the defendants. The word "precaution" is equivalent to care and skill. Davis v. London, &c. Ry. Co., 2 Ry. Cas. 308 ; Warburton v. Lon- don, &c. Ey. Co., 1 Ry. Cas. 558 ; Mat- thews V. West London Waterworks Co., 3 Campb. 403 ; Wild v. Gas-light Co., 1 Stark. 189 ; Thickness v. Lancaster Canal Co., 4 M. & W. 172 ; Vaughn v. Taff Vale Ry. Co., 5 H. & N. 679 ; Eyre's Case, 3 N. & M. 622 ; Turner v. Sheffield, &c. Ey. Co., 10 M. & W. 425 ; Davis v. London, &c. Ry. Co., 1 M. & G. 799 ; Sutton V. Claric, 7 Taunt. 29 ; Rex v. Nottingham Waterworks Co., 6 Ad. & El. 355. See also as asserting this duty, Bisooe ti. Great Eastern Ry. Co., L. R. 16 Eq. 636 ; 7 Moak's Rep. 630 ; Lafayette Plank R. Co. V. New Albany, &c. E. Co., .13 lud. SEC. 275.] CONSTRUCTION OF THE BOAD, ETC. 1119 seen, however, that there are many cases in which legislative authority operates to shield the company from liability for injuries which would otherwise be actionable.^ Applying the same principle in this connection, the rule may be stated to be that authority to con- struct a railroad carries with it authority to do whatever is necessary for the proper execution of this authority and for- the carrying out of the contemplated undertaking. Therefore, so long as the railroad company exercises proper care in the construction of its road and 'keeps carefully within the bounds of the authority granted, it cannot be held liable for injuries which are a necessary consequence of its acts ; the rightful and proper exercise of a lawful authority can never afford a ground of action.^ Injuries which are the result of such an exercise of authority are damnum absque injuria; and the injured party cannot recover unless he can establish one of three propositions ot fact: either that the company exceeded the authority granted, or 90; Worste.r v. Forty-second St. R. Co., 50 liT.Y. 203; Rathbuni v. Bui-lington, &c. R. Co., 16 Neb. 441 ; 19 Am. & Eng. R. Cas. 137 ; Gudger v. Western, &e. R. Co., 87 N. C. 325 ; 19 Am. & Eng. K. Cas. 144. 1 See ante, §§ 212-222. 2 Slatten v. Des Moines Valley R. Co., • 29 Iowa, 150 ; 4 Am. Rep. 205 ; Hatch i>. Vermont Cent. R. Co., 25 Vt. ,4S ; Rich- ardson V. Vermont Cent. R. Co., 25 Vt. 465 ; 60 Am. Deo. 283 ; Boston Gas-light Co. V. OldCol'ony R. Co., 14 Allen (Mass.), 444; Carson u. Western R. Co., 3 Gray (Mass.), 423 ; Stone v. Fairhury, &e. R. Co., 68 111. 394; Lynn, &c. R. Co. k. Boston, &c. R. Co., 114 Mas.-!. 88; Sweet- ser II.. Boston, &c. R. Co., 66 Me. 583; Lessee r. Buchanan, 51 N. Y. 476 ; 10 Am. Rep. 623, reverHna 61 Barb. (N. Y.) 86 ; Conklin u. New York, &c. R. "Co., 102 N. Y. 107 ; 26 Am. & Eng. :R.- Cas. 365 ; Thomas v. Androscoggin Co., 54 K H. 556; Fowle v. Eastern R. Co., 17 N. H. 519 ; 18 N. H. 547 ; 47 Am. Dec. 153. Compare, however, Baltimore, &c. R. Co. V. Reaney, 42 Md: 117 ; Evans- . ville, &c. R. Co,». Dick, 9 Ind. 433. See the subject examined in 19 A91. & Eng. Ency. Law, pp. 862 ei seq. In Hortsman v. Lexington, &o. R. Co.,, 18 B. Mon. (Ky.) 218, where a right of way was granted to a railway company, and it "was necessary to make deep cuts through the land granted, ' and the railway company left the banks of the cut without side-walls or other protection, the court say : " Al- though it devplved upon the company, in the use of the way for the purpose contemplated, to observe proper care and precaution, so as to avoid unnecessary in- jury to plaintiff's property, and^althoiigh a failure to do this would furnish a just ground of complaint for injury resulting from such failure, we are of opinion that it did not devolve upon the company to construct a wall, or erect any defences, for the protection of the adjoining projierty from the coBsequences resulting from a proper and reasonable use of the way for the railroad, although such consequences would be injurious, and inevitably so, to the plaintiff. It is forinjury resulting to a man from the careless, and negligent use by another of his property that the law affords redress to the former. The latter is not responsible for the lawful use of his own property, although such use may re- sult in damage to his neighbor. It is obvious that the plaintiff knew to what use the way would be applied, and the presumption is that he estimated the dam- age that would necessarily result from the use of the wav for a railway track." Cracknell v. Thetford, L. R. 4 C. P. 629. 1120 LOCATION AND CONSTRUCTION. [CHAP. XV. that it was guilty of a negligent exercise of such authority,' or that the act complained of amounted to a taking of property, compensa- tion for which was not included in the condemnation of the right of way .2 If either of these propositions can be proven, the company is clearly liable, but in all other instances, the legislative authority, is a complete protection. The cases holding railroad companies liable . for such damages all rest upon the ground that there was an unlaw- ful or an excessive exercise of the authority granted.^ In a Penn- sylvania case, the rule was laid down that " consequential damages are never recoverable from a corporation of this nature except when they are expressly and on the terms on which they are allowed." * ' The corporation in that case was authorized by an act of the legis- lature to improve a stream, and an action brought to recover, dam- 1 In the following cases recovery was allowed oa the ground that the authority was exceeded or wrongfully exercised. State V. Ohio, &o. E. Co., 7 Ind. 749 (recovery allowed where road was. con- structed along a street on an wiauthorized- grade ; Haynes v. Thomas, 7 Ind. 38 ; Protzman v. Indianapolis, &c. B. Co., 9 Ind. 467 ; Lawrence v. G^eat Northern Ry. Co., 16 Ad. & El. 643 ; Proprietors V. Nashua, &c. K. Co., 10 Gush. (Mass.) 385 ; Hazen v. Boston, &c. R. Co., 2 Gray (Mass.), 574 ; Cairo, &c. R. Co. v. Worsley, 85 111. 370 ; St. Louis, &c. B. Co. V. Capps, 72 111. 188 ; Eaton v. Euro- pean, &o. E. Co., 69 Me. 537 ; Parson v. Howe, 41 Me. 218 ; Lake Shore, &c. R. Co. V. Hutchins, 37 Ohio St. 282 ; 4 Am. & Eng. R. Gas. 219; Woodburn v. Met- ropolitan, &o. R. Co., 149 Mass. 335 ; 38 Am. & Eng. R. Gas. 484; Brewer v. Boston, &c. R. Co., 113 Mass. 52; Shaw V. New York, &c. R. Co., 150 Mass. 182 ; 41 Am. & Eng.'R. Gas. 547. In the case of Brown v. Cayuga, &o. E. Co., 12 N. Y. 486, the act of incorporation left the com- pany liable for consequential injuries to persons, resulting from the construction of the road over streams. In Gudger ». Western, &c. R. Co., 87 N. C. 325 ; 19 Am. & Eng. R. Gas. 144, the company was held liable for an injury to a person, caused from his tripping over a stake which an engineer had negligently left in the street. ^ In the assessment of damages, it is presumed that the company will exercise its authority lawfully and properly ; for the recovery of such damages the statu- tory method must be pursued. If the company exceeds its authority, thereby causing injury, the remedy is by an or- dinaiy action for a tort. In the case of Dodge V. Essex Co., 3 Met. (Mass.) 380, Shaw, G. J. , speaking for the court, said : "It is a reasonable and now well-settled principle that when the legislature under the right of eminent domain and for the prosecution of works for public use au- thorizes an act or series of acts, the natural and necessary consequence of doing which will be damage to the prop- erty of another, and provides a mode for the as.sessment and payment of the dam- ages occasioned by such work, the party authorized, acting within the scope of his authority, is not a wrong-doer ; an action will not lie as for a tort, and the remedy is by the statute and not the common law." A conspicuous example of the ap- plication of the last proposition in the text is seen where the legislature grants to a railroad company the right to occupy a street with its road. Such authority whether rightfully exercised or not can- not relieve the company from its obliga- tion to compensate abutting owners. ' See 19 Ate. & Eng. Ency. Law, pp. 862-865, and Slatten v. Des Moines, &c. E. Co., 29i Iowa, 152 ; 4 Am. Rep. 206, where the cases are reviewed. * Woodward v. Webb, 65 Penn. St. 254. SEC. 275.] CONSTRUCTION OP THE EOAD, ETC. 1121 ages resulting from a .proper exercise of the authority was denied. The Iowa court, in commenting on this case, observes : " This, it seems to us, is sound doctrine ; and, indeed, it must be true, as a general proposition, that tte rightful and h(mdfide exercise of a law- ful authority cannot afifbrd a basis for an action. If the power or right is exercised careslessly, negligently, wrongfully, improperly, or, it may be, maliciously, the party so exercising it may be liable to respond in damages for any injury, direct or consequential, resulting to another from thq,s exercising the right or power ; but such liability can only arise upon and for the manner of doing the act and not for the act itself.i In England, where railway companies are, by statute, made liable to the owner of all lands " injuriously affected " by their railways, it has been held that if the company does any act which would be an actionable injury without the protection of their special act, they are liable under the general statute.^ Where the defendants' railway passed across low lands adjoining a river, over which the flood-waters used to spread themselves, and the low lands were separated from the' plaintiffs laud by a bank constructed under certain drainage acts, and which protected the plaintiff's lands from the floods, and by the construction of the defendant's railway without sufficient openings, the floods could not spread themselves as formerly, and were penned up and flowed over the bank' on the plaintiff's land, - — it was held that though the defendants had constructed their line according to the provisions of their act, they were liable for an unforeseen injury arising from the mode in which its railway was constructed.^ i The fact that the construction of a railway upon adjacent property will impair the value of premises as a water-cure establishment,* or that it will diminish the value of a mill by making it unsafe to drive horses there, or inconvenient for customers, does not constitute an actionable injury, as such damages are too remote, and result only 1 Slatten v. Des Moines, &c. R. Co., 29 fered with ; and th? right to compensa- lowa, 153 ; 4 Am. Rep. 206. tion extends to, and may be asserted in ^ Glover 0. North Staffordshire Ry. Co., respect of, consequential damage. East, 15 Jur. 673 ; Queen v. Eastern Counties &c. Ry. Co. v, Gattke, 15 Jur. 261 ; Lon- Ry. Co., 2 Q. B. 347. The words "in- don & Northwestern Ry. Co. v. Bradley, juriously affected " comprehend cases of 15 Jur. 639. injury independent of taking land, and ' Lawrence v. Gt. Northern Ry. Co., ai-e not limited to damage sustained by 20 L. J. Q. B. 293; 16 Q. B. 643. persons whose lands or a part of whose * Thompson v. Milwaukee, '&c. R. Co., lands are taken, used, or directly inter- 27 Wis. 93. 1122 LOCATION AND CONSTKTJCTION. [CHAP. XV. from a lawful use of property.^ Nor can damages be recovered because the company have cut off the owner of adjoining land from convenient access to the river, in consequence of which, upon the occasion of his house being on fire, the fire department were unable to obtain access to the river, by reason of the use of the street and embankment by the company.^ But where an injury results from an act of the company which is unauthorized,* or which amounts to a taking of property by the destruction of an easement, as where a person's access to his prem- ises or to a lake or stream is cut off, or where the act is unwar- ranted, — as where the road is so constructed between premises and a lake as to create a stagnant pool of water, near a person's premises, — damages are recoverable.* For compensation is presumed to have been awarded only for such injuries as will necessarily result from a careful and proper execution of the power granted, and the award of damages does not preclude an action for injuries resulting from the company exceeding its authority, or from a negligent or unskil- ful execution of its work, so as to produce unnecessary-damages.^ And even though compensation for such unlawful or unauthorized act should be included in an award of the tribunal appointed to ap- praise the damages, it -would not preclude an action therefor, because it would be an exercise of a power not possessed by the 1 Western Pennsylvania R. Co. v. Hill, Wayne, &o. R. Co. v. Gilleland, 56 Penn, 56 Penn. St. 460. St. 445; Pennsylvania, &e. Canal Co. o. 2 Bosch tf. Burlington, &c. R. Co., 44 Graham, 63 Penn. St. 290; Winchester, Iowa, 402. &c. R. Co. v. Washington, 1 Rob. (Va.) * In Fenwick v. East London Ry. Co., 67 ; Southside R. Co. v. Daniel, 20 Gratt. L. B. 20 Eq. 544, the company erected a (Va.) 344; Vermont Central R. Co. v. mortar-mill close to the plaintiffs place of Baxter, 25 Vt. 49 ; Waterman v. Conn, business, creating great noise and vibra- &c. R. Co., 30 Vt. 610 ; .Clark v. Vt. tion. An injunction was granted upon a Central R. Co., 28 Vt. 103 ; Sabin v. Vt. bill brought by him, upon the ground that Central R. Co., 25 Vt. 363 ; McCormick the mortar-mill was /lot necessary for the v. Kansas City, &e. E. Co., 57 Mo. 483 ; construction of the road, and was not Oregon, &c. E. Co. v. Barlow, 8 Oregon, authorized by its charter. 311 ; Baltimore, &c. R. Co. v. Eeaney, * Delaplaine v. Chicago, &c. R. Co., 42 42 Md. 117; Lyon v. Green Bay, &c: R. Wis. 214. Co., 42 Wis. 538 ; Mellin v. Western E. 6 Spencer v. Hartford, &c. E. Co., 10 Co., 4 Gray (Mass.), 301 ; Hooker v. New R. I. 14 ; Dearborn v. Boston, &c. E. Co., Haven, &c. Co., 15 Conn. 312 ; Fleming 24 N. H. 175 ; Perley v. Boston, &c. R. v. Chicago, &c. R. Co., 34 Iowa. 353 ; Co., 57 N. H. 212 ; Eaton «. Boston, &o. Terre Haute, &c. R. Co. v. McKinley, 33 R. Co., 51 N. H. 504 ; Colcough v. Nash- Ind. 274 ; Rose v. Minnesota Valley R. viUe, &c. R. Co., 2 Head (Tenn.), 171 ; Co., 13 Minn. 442 ; King v. Iowa Midland Schuylkill Navigation Co. v. MoDonough, E. Co , 34 Iowa, 458 ; Spencer v. Hart- 33 Penn. St. 73 ; 'Fehr v. Schuylkill Nav. ford, &o. R. Co., 10 R. I. 14. Co., 69 Penn. St. 161 ; Pittsburgh, Fort SEC. 275.'] CONSTEUCTION OF THE EOAD, ETC. 1123 appraisers, even though the act was done before the damages were appraised.^ While a railway company may erect bridges across streams upon the line of its road, yet it is bound to do so in such a manner as not xnmecessaTily "to obstruct the stream ; and wTiere it can be done, and is necessary to prevent undue obstruction, it must supply suitable sluices or culverts to carry off the water ,^ even in times of extraordi- nary floods, which by the exercise of the highest circumspection may be anticipated ; ^ and if the water of a stream is diverted, it must be restored to its original course as nearly as practicable ; and the company is bound to preserve the stream in its former state of usefulness as nearly as possible, and failing to do so, is liable for the resulting damages.* But the recovery of prospective damages 1 Oreg-n, &c. E. Co. v. Barlow, 3 Oregon, 311 ; Piaetz v. St. Paul Water Co., 17 Minn. 163 ; Blodgett v. tJtica, &c. E. Co., 64 Barb". (N. Y.) 580 ; Lafayette, &c. R. Co. v. Murdoek, 68 Ind. 177 ; Pierce v. Worcester, &c. R. Co., 105 Mass. 199 ; Selma, &c. E. Co. v. Keith, 53 Ga. 178 ; Harrington o. St. Paul, &c. R. Co., 17 Minn. 215. ' Tinsman v. Belvidere, &c. E. Co., 25 N. J. L. 255. In Spencer v. Hartford, &c. E. Co., 10 E. I. 14, a railway com- pany was held liable for so building a bridge-pier as- to turn the current in time of freshets upon one's grass-land, causing gullies and silt deposits, — it appearing that, by additional expense, the bridge could have been erected without doing such injury ; and the fact that the land-owner had conveyed a part of the land to the com- pany, and in consideration of the pur- ohase-money had released all claims for damages which might be awarded by oommLssioners, was held not to preclude a recovery, as the award applies only to damages arising from the construction of the road in a proper manner. The right of a railway company to enjoy the use of its road-bed as an easement carries with it a correlative obligation to use rea- sonable care and diligence to teep a oiil- vert unobstructed, so that detriment to the owners of the land may be avoided so far as practicable, considering the size and structure of the culvert. West v. Louis- ville, &c. R. Co., 8 Bush (Ky.), 404. ' Kansas Pacific R. Co. v. Miller, 2 Col. 442. 1 Cott V. Lewiston, 36 N. Y. 214 ; Robinson v. N. Y., &c. R. Co., 27 Barb. (N. Y.) 612. And this duty is trans- ferred to its successor. Young v. Chicago, &c. R. Co., 28 Wis. 171. • But see Norris V. Vt. Central R. Co., 28 Vt. 99, where it is held that where » railway company has rightfully diverted the water of a stream, and in a proper manner, it is not bound to observe the action of the water and so pro- tect the banks or take other timely meas- ures as to prevent the'encroachment of the stream upon neighborfng lands. But an action does not lie unless a riparian pro- prietor has been actually damaged by the diversion. Elliott v. Fitchburg R. Co., 10 Cush. (Mass. ) 191. The rule is that a ' person, who without legislative authority interferes with the current of a running stream, is responsible, absolutely and' without regard to actual negligence for the damages sustained in consequence of his interposition by those who are entitled to have the water flow in its natural channel. But where such act is done under legisla- tive authority for a public purpose, the party constructing the work is only liable for want of skill and care. Bellinger v. New York Central R. Co., 23 N. Y. 42. In an action to recover damages for injuries done to the plaintiffs land by water, in consequence of the diversion of a stream from its channel by the defend- ant in constructing a culv.ert, the legal 1124 LOCATION AND CONSTEUOTION. [CHAP. XV. in an action for unnecessarily constructing a railway so as to cause the plaintiff's land to be washed away bars an action for subse- quent damages.^ The right to lay a railway track in a public street or highway carries with it the obligation, not only to lay it in a proper manner, but also to keep it in repair; and if an injury occurs from a neglect in either respect, it is liable for the consequences ; ^ and generally, in the construction and operation of its road, it is bound so to exercise its powers as to produce no unnecessary damages to the property of otters; but for injuries resulting from the proper and necessary execution of its works, it is not liable.^ Sec. 276. Bridges : Over Navigable Waters and as a Fart tit the Highway over its Road. — Authority to build a railroad between cer- tain termini carries with it authority to build bridges across all intervening streams, even though they are navigable.* Where the power is not expressly given, the right must be fairly implied from the location of the road as defined in the charter, or from the cir- cumstance that they intervene in the route selected by the company, in the exercise of the discretion reposed in it by the charter, and in siny event, must be exercised in the building of such structures as do not unnecessarily obstruct navigation.^ And if a bridge is built with- nile of damages has no reference to the v. Stearps, 15 Gray (Mass.), 1; BlaQkwell cost of removing a bar of gravel carried v. Old Colony R. Co., 122 Mass. 1 ; South there by the flood. The measure of dam- Carolina R. Co. v. Moore, 28 Ga. 398 ; ages in that class of oases is the depre- Bell v. Quebec, L. E. 5 App. Cas. 84. elation in the value of the plaintiff's And the company will not be liable for premises occasioned by the injury result- the temporary obstruction of the stream ing from the defendant's acts. Easter- vi'hile prosecuting the work with reason- brook V. Erie R. Co., 51 Barb. (N. Y.) able diligence and in a proper manner. 9i- Hamilton v. Vioksburgh, &o. R. Co., 1 Fowle V. New Haven, &o. R. Co., 112 34 La. An. 970. Contra, Memphis, Mass. 344. , &c. R. Co. ti. Hicks, 2 Sneed (Tenn.), ^ Worster v. Forty-second Street R. 427. Co., 60 N. Y. 203 ; Kellinger v. Forty- » Attorney-General v. Stevens, 1 N. J. second, Street R, Co., 50 N. Y. 206. Eq. 309 ; Attorney-General «. New York, ' ^7i!!e, Chapter XII. &o. R. Co., 24 N. J. Eq. 49; Hickok * Fall River Iron Works v. Old Col- v. Hine, 23 Ohio St. 523 ; Whitaker v. ony, &o. R. Co., 5 Allen (Mass.), 221; Del. & Hud. Canal Co., 87 Penn. St. 34 ; Hamilton v. Vieksburgh, &c. R. Co., 34 Union Pacific R. Co. v. Hall, 91 U. S. La. An. 970 ; Hughes ». Northern Pacific 343 ; Newark Plank-Road v. Elmer, 9 R. Co., 18 Fed. Rep. 106; Miller v. N. J. Eq. 754; Stevens v. Erie R. Co., Prairie, &c. R. Co., 34 "Wis, 583; Blood 21 N. J. Eq. 49; Memphis, &c. R. Co. V. Nashua, &c. R. Co., 2 Gray (Mass.), «. Hicks, 6 Sneed (Tenn.), 427 ; Attorney- 137 ; Jarvis v. Santa Clara Valley E. Co., General v. Hudson River R. Co., 9 N. J. 52 Cal. 438 ; Tinsman v. BeMdere, &o. Eq. 626. In Little Rook, fee. R. Co. v. R. Co., 26 N. J. L. 148 ; Harvard College Brooks, 39 Ark. 403, it was held that a SEC. 276.] BBIDGES : OVER NAVIGABLE WATERS, ETC. 1125 out authority,^ or if it is not provided with suitable draws, or if the requirements of its charter as to the mode of its construction are not complied with, it is a public nuisance ; ^ and any person specially in- jured thereby may maintain an action against the company for the damages sustained by him.^ In the case of interstate navigable streams, or those which form the division line between two States, while in the absence of any action by Congress taking control of such streams, the States may undoubtedly confer authority to, bridge them,* yet this is subject to the superior right of Congress to railroad has no right to build » bridge over a navigable stream merely because such stream intervenes on its route, which will interfere with navigation, but must obtain express authority. 1 Hickok V. Hine, 23 Ohio St. 523. '^ Healy v. Chicago, &e. R. Co., 2 111. App. 435. But in this case it was > held that " Healy Slough," which empties into the south. branch of the Chicago river, is not a navigable stream, and con- sequently that the building of a perma- nent railroad bridge across it is not a pub- lic nuisance. Healy v. Chicago, &c. R. Co., 94 111. 416. 8 Hickok V. Hine, 23 Ohio St. 523. * United States v. Milwaukee, &c. R. Co., 5 Biss. (U. S.) 410 ; Pennsylvania v. Wheeling, &e. Bridge Co., 13 How. (U. S.) 518 ; 18 id. 421 ; South Carolina v. Geor- gia, 93 U. S. 4 ; Green, &c. Nav. Co. v. Chesapeake, &o. R. Co. (Ky.), 10 S. W. Rep, 6 ; 37 Am. & Eng. R. Cas. 238 ;' Sweeny v. Chicago, & c. R. Co., 60 Wis. 60 ; 20 Am. & Eng, E. Cas. 268. In thi-s country each State has' exclusive jurisdic- tion and control over its 'inlaiid- streams that are not avenues of commercial inter- course with other States, and may deal with them as it pleases. It may author- ize the erection of wharves, piers, docks,' or dams thereon, or the erection of bridges over them, or even divert the water thereof, and entirely destroy their navi- gability ; and upon such streams, what- ever is done by individuals strictly within the scope of the power given is lawful, and cannot be regarded either as a public or private nuisance. In Bailey v. Philadel- phia R. Co., 4 Harr. (Del.) 389, it was held that the State has the right of a pro- prietor over navigable streams mtwely within its borders, and may obstruct, or entirely close up such streams at its pleas- ure. In Glover v. Powell, 10 N. J. Eq. 211, it was held that as to small arms of the sea stretojiing back into the country, the legislature is the judge of their navi- gability for useful purposes, and may keep them open for that purpose, or deal with them at its pleasure. Crittenden v. Wil- son, 5 Cow. (N. Y.) 165 ; Ren wick -o. Morris, 7 Hill (N. Y.), 575 ; Gibbons v. Ogden, 9 Wheat: (U. S.) 1 ; The Daniel Bell, 10 Wall. (U. S.) 557 ; The Montello, 11 id. 411 ; The Wharf Case,, 3 Bland's Ch. (Md.) 383; Grant v., Davenport, iS Iowa, 178 ; Dutton ■«. Strong, 1 Black (U. S. ), 23. But it must be understood that the State cannot do any act that will entirely destroy the navigability of an arm of the sea, or ah interstate stream. Cox V. The State, 3 Blackf,(Ind,) 193 ; Bennett .w. Baggs, 1 Bald. (U. S. C, C), 60; Cor- field V. Caryell, 4 Wash. (0. S. C. C.) 371 ; Pollard's Lessee v. Hagan, 3 How. (U. S.) 229. The States have the right to legislate upon all subjects affecting the police regulations of the stream. Cor- field V. Coryell, ante. In Wilson v. Blackbird Creek Marsh Co., 2 Peters (U. S.), 245, the legislature of Delaware authorized the Marsh Company to erect a dam across a small salt-water creek, an arm of the Delaware river. The defend- ants, Wilson, et al, who were the owners of a sloop duly licensed and enrolled by the government, broke and injured the dam. The plaintiffs had a judgment in the State courts, and upon appeal to the United States court the judgment was sustained, upon the ground that no essen- tial right Of navigation was abridged ; and as the dam bad the effect of enhancing the 1126 LOCATION AND CONSTKUOTION. [CHAP. XV. interpose at any time to defeat such authority ; and as a matter of prudence, the assent of that body should be procured in all cases value of property, and really wrought a puWio, benefit, and as the State law author- izing the dam conflicted with no law of the general government, it could not be held invalid as being repugnant to the power to regulate commerce. See also State v, Wil- son, 3 N. H. 321. But if the general gov- ernment should see fit to assert its jurisdic- tion over such streams, there can be no question that all State laws affecting the same would have to yield to the superior jurisdiction. Devoe v. Penrose Ferry Bridge Co., 3 Am. Law Reg. (U. S.) 79 ; Works V. Junction R. Co., 5 McLean (U. S.), 425 ; The Passaic Bridges, 3 Wall. (U. S.) 782. -The right of the State gov- ernment to partially obstruct the naviga- tion of its tide-waters has repeatedly been recognized by the Federal courts by au- thorizing the erection of bridges. United States V. New Bedford Bridge Co., 1 W. & M. (U. S.) 402 ; Silliman v. Hudson River Bridge Co., 2 Wall. (U. S.) 403 ; Works V. Junction R. Co., 5 McLean (U. S.), 425; Columbus Ins. Co. v. Peoria Bridge Assn., 6 id. 70 ; Jolly a. Terre Haute Drawbridge Co., id. 237. But that right is subject to the control of Federal courts. Devoe v, Penrose Ferry Co., 8 Am. Law Eeg. 79. And tp the rule that it shall in-' terfere as little as possible with navigation. Columbus Ins. Co. v. Bridge Assn., 6 Mc- Lean (U.S.), 70. And to the further qualifi- cation that it cannot authorize any material obstruction to be placed in or over even a tributary of an interstate or tidal stream. Columbus Ins. Ca v. Cnrtenius, 6 Mc- Lean (U. S.), 209 ; Jolly v. Terre Haute, etc., id. 237. In furtherance of public im- provement it may authorize a partial di- version of the surplus water. Woodman w. Kilburn Manufacturing Co., 15 Am. Law Reg. 238. But the public use must not be thereby impaired, or private rights injured. Lonsdale Co. u. Moies, 21 L. T. (n. s.) 648. And all erections in or over such streams must be of the most ap- proved description, and supplied with the best appliances to prevent obstruction. Packet Co. V. Peoria Bridge Assn., 38 111. 467 ; United States v. Railroad •Bridge Co., 6 McLean (U. S.), 517. But if the powers of the act are exceeded or are exercised in a manner different from that provided in the grant of authority, or if the act can be done so as not to be a nuisance, and the creation of a nuisance by the exercise of the power given is not fairly the result of the exercise of the power conferred, the grant will be no pro- tection, and the party doing the acts will be chargeable for a nuisance either by in- dictment or at the suit of persons injured thereby, the same as though there had been no color of authority given for their exercise. Com. v. R. Co., 2 Gray (Mass. ), 64 ; Com. v. New Bedford Bridge Co., id. 339 ; Com. v. Vt. & Mass. R. Co. 4 id. 22 ; Eenwiok '». Morris, 7 Hill (N. Y.), 575; Lawrence v. R. Co., 16 Q. B. 643 ; Brown v. Cayuga R. Co., 12 N. Y. 487 ; Navigation Co. v. Coon, 6 Penn. St. 379 ; Harris v. Thompson, 9 Barb. (N. Y. ) 350 ; Clark u. Syracuse, 13 id. 32 ; Hopkins v. Birmingham & Staf- fordshire R. Co., 1 L. T. (N. s.) 303; Attorney-General v. Bradford. Canal, &c. Co., 15 id. 9 ; Davis v. Mayor, &c., 14 N. Y. 526 ; Rex v. Pease, 4 B. & Ad. 30. But over tidal streams an^ in fresh-water navigable streams that are avenues of com- mercial intercourse with other States, the States through which they pass have only a limited jurisdiction. The general ■ government, under the power delegated to it to regulate commerce between the States, has the ultimate and superior jurisdiction over such streams, and the State cannot authorize any act to be done thereon that will materially interfere with their navigability. The strict doctrine that no obstruction can be made therein under State authority that in any measure interferes with navigation is not observed, because the State is treated as having a quasi jurisdiction over the streams. In Jolly V. Terre Haute Drawbridge Co., 6 McLean (U. S.), 237, the defendants erected a bridge under authority given by the legislature of Indiana. The act pro- vided that the bridge should be provided with a "convenient draw." The cpm- plaint was that it was not provided with such a draw, in consequence of which the SEC. 276.] BRIDGES: OVEE NAVIGABLE WATEBS, ETC. 1127 ■where the streams corrie within the denomination of interstate streams ; and when -such authority is obtained, it must be exercised in plaintiffs boat was injured. Dkummond, J., upon this point, said ; " The language ' convenient draw,' imports a draw' which can be passed without vexation, delay, or- risks. If it meets the requirements of the act of incorpdration, and is not such a one, the charter is violated. If it meets the act of incorporation and is yet a ma- terial obstruction to navigation, the act is a nullity for viant of powe'r in the. State to authorize it." In Columbus Ins. Co. V. Peoria Bridge Assn., 6 McLean (U. S.), 70, the court said : "The State may authorize an erection that does not materially obstruct navigation. Every bridge may in a certain sense be said to be an obstruction, but that delay and risk which is inseparable from the thing which the State has the power lo create does not make it a nuisanqe." In Columbus Ina. Co. V. Gurtenius, 6 McLean (U. S.); 209, it was held that a State cannot authorize a material obstruction to navigation in a stream over which the general government has jurisdiction. But that a plea in bar of an action for damages arising for in- -juries received from such an obstrnction, that merely alleges that the obstruction was erected under State authority, is bad. It should also allege that the erection is not a material obstruction. The fact that the obstrnction will resiilt in real advan- tage to the public does not rob it of the character of a nuisance, if it really obstructs navigation. Works v. Junction E. Co. , •5 McLean (U. S.), 424. Advantages and disadvantages cannot be balanced in such a case. Pennsylvania v. Wheeling Bridge Co., 9 West. Law Jour. 533 ; 13 How. (IT. S) 519 ; Butler v. State, 6 Ind. 165. A wharf is not necessarily a nui- sance ; whether it is or not is a question of fact. Laughlin v. Lamasco, 6 Ind. 223. Hence, when an act is done therein under State authority, as the erection of a bridge, ' dam, or other erection in or over the stream, although operating as a slight ob- struction to navigation, it will not be re- garded asfl; nuisance" if the public benefit therefrom is equal to the inconvenience created thereby to navigation. Devoe v. Penrose Ferry Bridge Co., 3 Am. L. R. 79 ; Griffing v. Gibb, 1 McAl. (U. S.), 212; Columbus Ins. Co. v. Peoria Co., 6 McLean (U. S.), 70; United States ». Bedford Bridge Co., 1 W. & M.' (U. S.) 402 ; Silli- mau V. Hudson E. R. Co., 4 Bl. (U. S.) m, 395 ; Works v. Junction K. Co., 5 McLean (U. S.) 425 ; Jolly v. Terre Haute Bridge Co., 6 id. 237 ; Atkinson v. Phila., &c. R. Co., 4 Haz. Penn. Reg. 10 ; Wood- man V. Kilburn Mfg. Co., 15 Am. Law Reg. 288 ; Penn. i». Wheeling Bridge Co., 13 How. (U. S.) 519. The common-law rule is not observed by the United States courts in dealing with obstructions to navigation created under State authority, for the reason that such acts are regarded as having been done under quasi author- ity. Griffing t). Gibb, a»fe. And if they are I'eally of public benefit, and aids to com- merce, they will not be regarded as nui- sances unless the public injury overbalances the public benefit. Columbus Ins. Co. v. Curtenius, 6 McLean (U. S. ), 207 ; Jolly v. Terre Haute Bridge Co., id. 237 ; Colum- bus Ins. Co. V. Peoria Bridge Co., id. 70. But this is subject to the restriction that the State may not authorize a material ob- struction to navigation. Pennsylvania v. Bridge Co., 13 How. (U. S.) 519. And when such an obstruction, that materially interferes with the use of the stream for the purposes of public passage, is erected, even under authority from the State, it is a nuisance, and the party erecting it is liable for all damages resulting therefrom to individuals, and to indictment in behalf of the public, and the authority conferred by the State is no protection or defence. Id. ; R. Co. 0. Ward, 2 Black (U. S.), 485 ; Works v. Junction R. Co., 5 Mc- Lean (U. S. ), 428 ; Georgetown v. Canal Co., 12 Pet. (U. S. ) 91. Neither is it any defence that the structure is useful to the public and an essential aid to commerce, — as a bridge, a wharf, or other encroach- ment in or over the stream. Pennsylvania V. Bridge Co., 13 How. (U. S.) 519 ; The Passaic Bridges, 3 Wall. (U. S. ) 782 ; Baird v. Shore Line R. Co., 6 Blatchf. (U. S. C. C.) 276. The State occupies to snch streams the same relation that a riparian owner on a fresh-water stream, 1128 LOCATION AND CONSTRUCTION. [CHAP. XV. the manuer provided in the act conferring the authority.^ Of course, authority to build a bridge carries with it authority to build the (U. S.) 1 ; Works v. Junction R. R. Co., 6 McLean (U. S.), 425 ; Columbus Ins. Co. !). Curtenius, 6 id. 209 ; Jolly v. Terre Haute Drawbridge Co., id. 237. The State may authorize imprdvements to be made in any navigable stream, tidal or non-tidal, by clearing out its bed, deepening its channel, or otherwise; but these changes must be improvements, or at least must not operate to impair navigation. Avery V. Fox, 1 Abb. (U. S. C. C.) 246 ; Oilman V. Philadelphia, 3 Wall. (U. S.), 713; Palmer v. Cuyahoga Co., 3 McLean ( V. S. ), 226 ; Williams !>. Beardsley, 2 Ind. 391 ; Spooner w. McConnell, 1 McLean (IT. S.), 387. So, too, it may authorize the erec- tion of wharves below low-water mark to render access to the port more easy and convenient, and authorize the erection of piers, slips, and docks, in a reasonable manner, and being in aid of navigation and commerce by furnishing facilities for the approach and safety of vessels, and for lading and unlading them, these erections will not be regarded as nuisances, unless they materially interfere with free naviga- tion to the stream or port. Devoe v. Pen- rose Ferry Co., 3 Am. Law Eeg. (U. S.) 79. But all such erections below low- water mark are made at the peril of having them declared nuisances by the Federal courts, if they unreasonably or essentially impair the convenience or safety of naviga- tion, unless Congress has conferred the power upon the State or corporation to make the erections, — Pei^nsylvania », Wheeling Bridge Co., 13 How. (U. S.) 578, — or unless the title to the bed of the sea, bay, or stream, below low-watermark, is vested in the corporation erecting them whose title extends to the centre thereof, occupies to it. It may make or authorize any use of the stream that does not essen- tially interfere with its proper and free use for the purposes of navigation, but beyond that it cannot go, or authorize others to go ; and any wharf, bridge, dam, or other Mection made under State authority, that is in any essential degree an interference with the free navigation of the stream, is a nuisance, and liable to be redressed as such in the Federal courts. Packet Co. v. Atlee, 7 Am. L. E. 752 ; reversed by the United States Supreme Court, March 4, 1875. See Albany Law Journal of March 6th ; Woodman v. Kilburn Mfg. Co., 1 Abb. (U. S. C. C.) 158.; Oilman v. Phila- delphia, 3 Wall. (U. S.) 713. Therefore it will be seen that the decisions of the United States court, involving questions of nuisance, by obstructions erected under State authority, are not authorities upon the question of unauthorized obstructions. As to those, the United States courts fol- low the common'law rule, and hold such obstructions unlawful and a nuisance. Irrespective of the question of benefits, public or private, resulting therefrom. But encroachments upon the sea that do not amount to an appropriation of it, or an obstruction to navigation, or an injury to a port, are not treated as nuisances, and, being picrprestures merely, are tolerated where individual convenience demands it, , and no public inconvenience or injury results therefrom.- Wilson v. Blackbird Creek Marsh Co., 2 Pet. (U. S.) 245. But when a real obstruction to navigation results, the authority of the State is no protection. Gibbons v. Ogden, 9 Wheat. 1 Pennsylvania v. Wheeling Bridge Co., , 13 How. (U. S.) 518 ; 18 How. 421. The defendants built a bridge across the Mis- souri river, under the act of Congress of July 25, 1866, requiring that the passage- way for vessels between the piers of any drawbridge shall be 160 feet wide in the clear. It was held that the proper meas- urement is by a line running directly across the channel, and at right angles to the piers, and that the bridge in question being built, diagonally across the river, a. measurement along its line is not the proper measurement. Missouri River Packet Co. v. Hannibal, &c. R. Co., 1 McCrary (U. S), 281. If the statutory requirements are not complied with, the bridge to that extent is a nuisance. Dugan V. Bridge Co., 27 Penn. St. 303 ; Rogers ». Kennebec, &o. R. Co., 33 Me. 319 ; Mem- phis, &o. R. Co. V. Hicks, 5 Sneed (Tenn.), 427. SEC. 276.] BRIDGES: OVER NAVIGABLE WATERS, ETC. 1129 necessary abutments, piers, and other usual or necessary appurte- nances to secure its safety and permanence.^ So, too, it may occur indictable as such, even though it is really of public advantage and a great conven- ience to those navigating the stream. In Rex V. Ward, 4 Ad. & El. 384, the defend- ant was indicted for erecting a causeway and wharf projecting into the harbor, and rai.sed on a kind of platform. The cause- way was originally of /gravel, shingle, and stone, called a hard, and sloping into the water. Subsequently the wharf was con- siderably lengthened, extending up the harbor. It was then raised on piles and con- siderably heightened, and instead of sloping down into the water, as it had formerly done at the extremity, it was five feet and four inches higher than the shore. It appeared that small vessels were obstructed in their tacking,' by the causeway, when pursuing their way up the harbor with the tide ; also that square-rigged vessels, lightermen, and row-boats were exposed to some in- convenience therebj', both as to navigation and landing. On the other hand, it ap- peared that the causeway and wharf were a great public benefit in launching and landing boats more 'readily, and that steamboats and other vessels could ap- proach that wharf when they could not at others, and that vessels obtained shelter from the quay. The jury found that an impediment had been created by the cause- way and wharf, but that the inconvenience was counterbalanced by the public benefit. Upon this verdict the court held that the defendants were guilty of a nuisance, and directly, and in terms, overruled the doc- trine of Rex V. Russell, 6 B. & C. 566, in which it was held that if the public benefit arising from an obstruction is equal to the public inconvenience, no nuisance could be predicated of it. Lord Denman, J., said ; " I must say that if the violation of rights which belong to any part of the public is to be vindicated by the bene- fit which is to arise in another part of the public elsewhere, we are introducing in- quiries of a most vague and unsatisfactory nature, and entering into speculations upon which no judge can be expected to or authorizing their erection, by grant, prior to the revolution, with authority to erect wharves, piers, etc. In New York City, .the coi'poration under their original charter on Manhattan Island owns the lands under the East river to a point 400 feet beyond low-wrter mark. The owner- ship of the land between high and low water mark is regarded as vesting a fran- chise in the owner, which authorizes the erection of public or private Vharves,' not impeding navigation, and to charge tolls for the use of the same. Dickinson v. Codwise, 1 Sandf. Ch. (N. Y.) 214 ; Ver- planck V. New York, 2 Edw. Ch. (N. Y.) 220 ; Mayor, &c. v. Scott, 1 Gaines (N. Y.), .543 ; Klingensmith v. Ground, 5 Watts (Penn.), 459 ; Com. v. Shaw, 14 S. & R. (Penn.) 13; Ball v. Slack, 2 Whart. (Penn.) 530. The State, being the owner of the shore of tidal streams, that is, of the space between high and low water mark, may grant the same tg individuals or cor- porations ; and such grant vests in the grantee a .g-iiost fraliohise, for the use of the portion of the stream so conveyed in any way that the State could use it. The title being derived from the State carries with it all the rights incident to the property in the State. , If the State had the right to erect a wharf on the portion of the stream covered by the grant, the grantee takes the same right as incident to the estate granted, and the estate is estopped from pursuing him for a purpresture, unless he extends his erections beyond the limits of his grant, and can only pursue him for a nuisance when his erections amount to an actual material obstruction to naviga- tion. Delaware & Hudson Canal Co. v. Lawrence, 9 N. Y. Sup. Ot. 163 ; Wil- liams V. Wilcox, 8 Ad. & El. 314 ; Abra- ham V. The Great Northern Ey. Co., 16 Q. B. 586 ; Attorney-General v. South- ampton Ry. Co., 9 Simons, 78. See Lord Darey v. Askwitl>, Hob. 234. Any unauthorized obstruction of a navigable stream, whether an actual hindrance to navigation or not, is a nuisance, and is 1 Monongahela Bridge Co. u. Kirk, 46 Penn.' St. 112 ; Clarke w. Birmingham, &c. Bridge Co., 41 id. 112. VOL. II. — 21 1130 LOCATION AND CONSTRUCTION. [CHAP. XV. that the company is invested with a discretion to cross a navigable stream, either by the establishment of a bridge or a ferry ;^ but 6 B. & C. 579, cited as MS. case, a quay in a river that impedes or obstructs the navigation of small craft. Bex v. Gros- veuor, 2 Starkie, 448. Atlfee v. Packet Co., 21 Wall. (U. S.) 389, wharves ereected below low-water mark impeding naviga- tion. Com. V. Crowninshield, 2 Dane's Abr. 297 ; Com. v. Wright, Thac. Cr. Ca. 211 J Gray v. Bartlett, 20 Pick. (Mass.) 186, — piles driven in channel of river. Jones v. Pettibone, 2 Wis.' 808 ; Walker v. ShepardSOn, 4 id. 486, — a pier in a tidal stream. People v. Vander- bilt, 26 N. Y. 287 ; Attorney-General ti. Richards, 2 Anstr. 603 ; Attorney-General V. Burridge, 10 Price, 360 ; Newcastle v. Johnson, 2 Anstr. 608, — houses erected so as to straighten a river. Rex v. Tindall, 6 Ad. & El. 143. Obstructions only crea- ted by erections, in extreme and excep- tional cases, will not be regarded as nui- sances. See Nicholas v. Boston, 98 Mass. 39, where a wharf below low-water mark was held not necessarily a nuisance. See Wetmore v. Atlantic White Lead Co., 37 Barb. (N. Y.) 70, where it was held that whether a building below low-water mark is a nuisance, is a question of fact, and though prima facie a nuisance, is not in fact so, unless it. obstructs navigation or injures the port. See Naglee ii. Inger- soU, '7 Barr (Penn.), 185, where it was held that a wharf below low-water mark was a nuisance. In Rochester v. Errickson, 46 Barb, (N. Y.) 92, an erection on the banks of a river flowing through a populous city, that sets back the water in an appreciable degree, so as to contribute to the overflow of its banks, was held to be a nuisance. In Renwick v. Morris, 7 Hill (N. Y.), 575, a dam erected on a naviga- ble stream or a bridge over it, under authority of the legislature, is held to be a nuisance if the power is exceeded. See Clark v. Syracuse, 13 Barb. (N. Y.) 32 ; Crittenden v. Wilson, 5 Cow. (N. Y.) 165 ; Packet Co. v. Bridge Assn., 36 111. 467 ; United States v. R. R. Bridge Co., 6 McLean (U. S.), 517; Garey v. El- lis, 1 Cush. (Mass.) 306. A wharf ex- decide." In People v. St. Louis, 10 111. 351, it was said : " While the State may partially obstruct navigable streams for the public benefit, yet individuals have no such right; and where such an Obstruction is made by an individual as amounts to a nuisance, though sufficient room for pas- sage is left, the fact that the public is really benefited by the obstruction will not be considered." The following acts have been held to be miisances : In Dobson v. Black- more, 9 Ad. & El. (Q. B.) 991, a floating- dock cutting off access from the river. In Rose u. Groves, 5 M. & G. 613, placing timbers in the river so as to prevent ap- proach to the plaintiff's premises. In Bex V. Ward, 4 Ad. & El. 384, an embank- ment extending into a navigable river, although of great advantage to navigation, was held a nuisance, because it actually obstructed navigation. In Anonymous, Buss. Cr. 379, a floating-dock was held a nuisance, although beneficial for repfiiring ships. To the same elfect, Heeker ». N. Y. Balance Co., 13 How. Pr. (N. Y.) 549; Pennimanw. same, id. 40; Hawkins' P. C, chap. 75, § 11. In Roseu. Miles, 4 M. & S. 101, barges moored across a public river in amaniier to obstruct navigation or prevent access to the shore. The C. D., Jr. , Newb. Adm. 501 ; King v, Sanders, 2 Brevard (S. C). 111. See also Hart v. Mayor of Albany, 3 Paige (N. Y.), 213. In Brucklesbank o. Smith, 2 Burr. 656, throwing ballast into the sea in a port. In Regina v. Stephens, L. R. 1 Q. B. 702, throwing rubbish from a quarry into a river. In Gerrish v. Brown, 51 Me. 256, and Davis v. Winslow, id. 289, throwing edgings from logs and boards into a public river. In Manhattan Gas Co. r. Barker, 7 Robt. (N. Y.) 523; H. R. Co. v. Loeb, id. 418 ; Mayor, etc. v. Bauni- ■ berger, id. 219, — discharging refuse from breweries into a stream, or any refuse cal- culated to fill up the streajm or impede navigation or render the port unpleasant. In Rex V. Medley, 6 C. & P. 292, sending into a public river the refuse from gas- works. In Attorney-General v. Brittain, > State V. Wilmington, &c. E. Co., Busbec (N. C), 234. SEC. 276.] BRIDGES : OVER NAVIGABLE WATERS, ETC. 1131 unless the charter expressly provides otherwise, the ferry can be used only for the purposes of travel upon its road, and not for gen- eral purposes.* tending Mow low-water mark and beyond dock lines is a nuisance, even though erected before the dock lines were estab- lished ; so is a bridge erected so as to ob- struct navigation. Com. v. New Bedford Bridge Co., 2 Gray (Mass.), 339. Author- ity to do an act which may or may not be a nuisance, does not authorize it to be done so as to be a nuisance. Com. v. Charlestewn, 1 Pick. (Mass.) 185. A highway cannot be laid out in or over a navigable stream with- out legislative authority. Arundel v. Mc- CuUoch, 10 Mass. 70. Nor a bridge. Keau ». Stetson, 5 Pick. (Mass.) 492 ; Barnes v. Eacine, 4 Wis. 454. Nor can a highway be laid out between high and low water mark without authority. Com. v. Chapin, 5 Pick. 199 ; Cox v. State, 3 Blac.kf. (Ind.) 193; Baiubridge v. Sherlock, 29 Ind. 364 ; Martin v. Bliss, 5 Blackf. (Ind.) 35; Depew v. Canal Co., 5 Ind. 8; Harbor Co, 0. Cityof Munroe, Walk. (Mich.) 155; Drawbridge Co. o. Halliday, 4 Ind. 36 ; Bice V. Euddiman, 10 Mich. 124. Divert- ing the water of a stream navigable in fact creates both an actionable and indictable nuisance.- Yolo v. Sacramento, 36 Cal. 193; Gunter v. Geary, 1 id. 462 ; Regina «. Betts, 22 Eng. Law & Eq. 240. Driving piles in a navigable river, without lawful authority, is a public nuisance. Potter u. Menasha, 30 Wis. 492. So is a dam send- ing water back on another person's lands; and the owner of the lands may .sue for damages, or proceed for an abatement of the nuisance. Newell v. Smith. In Rex V. Grosvenor, 2 Starkie, 448, the defendants were indicted for erecting a wharf on the River Thames, to the in- jury of the navigation of the river. It ap- peared that the wharf was erected between high and low water mark, and extended for a considerable distance along the river; and that before the wharf was erected the recess afforded a place of refuge in time of storm, and that the eddy- water which it had used afforded greater convenience for the passage of watermen. It appeared on the part of the defendants that they had rented the portion of the ijver occu- 1 Fitch V. New Haven, &e. R. Co;, 30 Conn. 38. The right to set up a ferry is a frawMse which no one can exercise without a license from the State, Blissett ■V. Hart, Willes, 512, n., or by prescrip- tion. 2 RoUe's Abr. 140 ; Lansing v. Smith, 4 Wend. (N. Y.) 21 ; Benson v. Majorie, 10 Barb. (N. Y.) 223 ; Young v, Harrison, 6 Ga. 139 ; Dyer u. Bridge Co., 2 Porter (Ala.), 296 ; Stark ■». McGowen, 1 N. & McC. (S. C.) 387 ; Nashville v. Shelby, 10 Yerger (Tenn.), 280 ; Somer- ville V. Wambish, 7 Gratt. (Va.) 205. A riparian owner may set up a ferry for his own use, but not for the use of others. Young i>. Harrison, 6 Ga. 139 ; People ti. Mayor, &c., 32 Barb. (N.Y.) 102; Norris V. Farmers' Co., 6 Cal. 590; Johnson u. Erskine, 9 Tex. 1 ; Sparks t>. White, 7 Humph. (Tenn. ) 86 ; De Jure Maris,' 73 ; Milton v, Haddon, 32 Ala. 30 ; Tayler v. Railroad Co., 4 Jones (N. C), 277; Mills V. St. Clair Co., 7 111. 177 ; Coopers. Smith, 9 S. & R. (Penn.) 26; Trustees ». Talman, 13 111. 27; Murray o. Murfee, 30 Ark. 560. A ferry franchise is not an incident of riparian ownership. Patrick v. Ruffners, 2 Rob. (Va.) 209 ; Young v. Harrison, 6 Ga. 130 ; Stanford v. Mangin, 30 id. 475. All unlicensed ferries are nuisances. 3 Kent's Com. 458, 459 ; 3 Blackstone's Com. 219. But the State may license as many ferries to and from the same pdint as it choosey. Dyer v. Tuscaloosa Bridge Co. , 2 Porter (Ala.), 296 ; R. E. Co. v. Douglass, 9 N. Y. 444; Charles River Bridge ». War- ren Bridge, 11 Peters (U. S.), 420 ; Bridge Co. v. Railroad Co., 17 Conn. 454; Thomp- son V. Eailroad Co., 2 Sandf. Ch; (N. Y.) 625 ; Bridge Co. v. Fish, 1 Barbour's Ch. (N. Y.) 547 ; Toledo Bank v. Bard, 10 Ohio (n. s.), 622 ; Canal Co. ». Eailroad Co., 11 Leigh (Va.), 42; Benson v. Mayor, &c., 10 Barb. (N. Y.) 223 ; Eailroad Co. V. Eailroad Co., 2 Gray (Mass.), 5 ; East Hartford ». Bridge Co., 13 How. (U. S.) 71; Shorts w. Smith, 9 Ga. 517. 1132 LOCATION AND CONSTRUCTION. [CHAP. XV. The repair of a bridge having become necessary, the railroad company gave notice to the navigation company, which operated a line of steamers on the river, of its intention to make the repairs. The repairing was done at a time of the year when navigation would be least interfered with, and no unnecessary delay took place. In an action by the navigation for the obstruiction of the stream, the court held that the railroad company was not liable. It was not bound to adopt an unusual and expensive course in making the repairs in order to leave navigation entirely free, and the loss sustained by the navigation company was damnum absque injuria.^ In the construction of bridges over which its passenger trains are to pass, the company is bound to the exercise of the highest possible pied by their whaif from the corporation of London, who were the conservators of ,the river, and had a right to make or au- thorize such erections between high and low water mark, and that their wharf was a piiblic benefit ; that the projection which had existed previously had occasioned an eddy which had caused a deposit of mud in the river, and a diversion of the stream, and that the embankment would tend to remove it, and thereby be of material bene- fit to the navigation by removing any col- lection of mud. Abbott, Ld. C. J., held that the city of London could not author- ize a nuisance in the river, and in passing upon the main question in the case, he said : "The qiiestion here is, whether a public right has been infringed. An em- bankment, of considerable extent has been constructed for the purpose of building a wharf; much evidence has been adduced on the part of the defendant for the pur- pose of showing that, the alteration affords greater facilities and conveuiences for load- ing and unloading ; but the question is not whether any private advantage has resulted from the alteration to any particular indi- viduals, but whether the conveniences of the public at large, or of that portion of it which is interested in the navigation of the River Thames, has been affected or diminished by the alteration. . . . The question is, whether if this wharf be suf- fered to remain, the public convenience will (Suffer." Lord Grosvenor was acquitted, and the rest of the defendants were con- victed. In an early case. in the United States courts, — Respublica v. Caldwell, 1 Dall. (U. S.) 150, decided in 1783, — the defendant was indicted for erecting a wharf upon public property in Philadel- phia, and upon the trial the defendant offered to prove that the wharf was a public benefit, and furnished conveniences indispensable to commerce for the easy lading and unlading of vessels, and there- fore was not a nuisance ; but the court held that public benefits were no defence against a nuisance in a navigable stream. Wood on Nuisances, pp. 548-556. 1 Green, &c. Nav. Co. v. Chesapeake, &c. R. Co. (Ky., 1888), 10 S. W. Rep. 6 ; 37 Am. & Eng. R. Gas. 238. See also Central Trust Co. v. Wabash, &o. R. Co., 32 Fed. Rep. 566; Hamilton v. Vicksburg, &c. R. Co., 119 U. S. 280 ; 29 Am. & Eng. R. Cas. 490. The case of Silver v. Missouri Pac. R. Co., 101 Mo. 79; 44 Am. & Eng, R. Cas. 467, was an action for damages by the owner of a steamboat which was injured by running against ft pier of the railroad company's bridge. It appearing that the company had properly constructed the bridge under lawful author- ity, judgment for the plaintiff rendered by the lower court was reversed. The same principle is upheld in Ward v. Louisville, &c. R. Co. (Tenn. 1882), 3 Am. & Eng. R. Cas. 506. But the company owning the bridge for injuries resulting from its failure to prevent the collection of drift around its piers, St. Louis, &c. B. Co. V. Meese, 44 Ark. 414. SEC. 276.] bridges: OVER navigable waters, etc. 1133 care to have them safe and secure, so as to prevent the occurrence of injury or accident from their giving way. This is a part of the company's duty as a carrier of passengers.^ But the company is cieai-ly not bound to exercise such a liigh degree of care where its capacity as carrier is not involved. Thus where the overflow of water and ice caused from the faulty plan and construction of the bridge destroyed plaintiff's mill, it was held that in planning and constructing its bridge the company was bound to bring to its aid the engineering knowledge and skill ordinarily known and employed for such works, and see to the practical application of such knowl- edge and skill to the work in hand ; but it was not bound to do more.^ As a railway company takes by inference the right to bridge streams intervening upon its route, so, too, it takes the right to cross highways, and where necessary because of the- difference in grade, to cross them by bridges ; but this right is generally conferred in express terms, and when it is so conferred the privilege is a part of the franchise of the company. The necessary approaches constructed for the purpose of restoring the streets or highways to their former condition of usefulness under, and as a condition to, the exercise of the privilege are a part of the railroad structure authorized by its charter; and in their erection, a party incidentally injured has as complete and perfect a remedy against the company for consequen- tial damages as he has for a direct injury caused by the original construction of the railroad. The obligation to make compensation is as strong in the one case as in the other, and to the discharge of that obligation in the manner prescribed it impliedly bound itself 1 Pershing v. Chioago, &c. R. Co. , 71 defects ; that it was liable to an employe Iowa, 56 ; 34 Am. & Eng. R. Cas. 405 ; upon one of its trains for injuries received Bedford, &o. R. Co. v. Rainboat, 99 Ind. by a fall of the bridge ; and this although 551 ; 21 Am. & Eng. R. Cas. 466. Where the bridge had been in use for several a railroad -corporation purchased the line years before the purchase. It seems that of another company of which an existing the prior use might have justified a con- bridge formed a part, which bridge at the tinuance of the use until a competent time of the purchase was unsafe and dan- inspection could reasonably ' have been gerous by reason of defects in its original made, but did not justify a neglect to plan and construction,, and such defects observe and remedy the defects when an were obvious to the eye of a skilled inspec- inspection was made. Vosburgh o. Lake tor, and could have been easily and surely Shore, &c. R. Co., 94 N. Y. 374. ascertained by proper examination, it was, ^ See Omaha, &c. B. Co. v. Brown, 14 held that it was negligence on the part of Neb. 170 ; ] 1 Am. & Eng. R. Cas. 601 ; the corporation to continue its use without approving Pittsburgh, &c. R. Co. v. Gille- Buch an inspection and a correction of the land, 56 Penn. St, 445. 1134 LOCATION AND CONSTRUCTION. [CHAP. XV. by the acceptance of its charter.^ The company's obligation to restore the highway by the erection of a bridge over its right of way, together with suitable approaches thereto, is not discharged by a mere construction of the bridge and its approaches ; they must be continually maintained in good repair, and this duty of repair is as binding as that to construct.^ Indeed; the duty is not only con- tinuous but may, it seems, require the enlargement of the bridge if the increase of public travel make it necessary.^ These duties are declared by statute in many of the States, but these are merely affirmative of the common law on the subject.* The approaches to the bridge which are necessary to connect it with the highway,^ the abutments and lateral embankments, and indeed everything essential to the construction of the bridge and which was built as a part of it, and are essential for its maintenance as it is required to be main- tained, are a part of the bridge which the company is bound to keep in repair;^ and this although part of the structure may extend 1 Phelps, J., in Burrittw. New Haven, Mass. 185 ; 10 Am. & Eng. R. Cas. 328 ; 42 Conn. 199 ; Parker v. Boston, &c. R. English v. New Haven, &o. Co., 32 Conn. Co., 3 Gush. (Mass.) 116 ; Com. v. Deer- 241; Burritt v. New Haven, 42 Conn. 174; field, 6 Allen (Mass.), 449. It is the duty Manley v. St. Helena, &c. K.'Co., 2 H. & of a railway company, when constructing N. 840. ' a bridge over a river, and making lateral * Chesapeake, &o. E. Co. v. Dyer Co., embankments adjoining the highway lead- 87 Tenn. 712. ing to such bridge, so to construct the * Hayes v. N. Y. Central R. Co., 9 latter as not to make the approach to the Hun (N. Y.), 63; Newcastle v. North bridge along the highway dangerous for Staffordshire Ry. Co., 5 H. & N. 160. foot-passengers. A failure to perform this " Sussex 'w. Strader, 18 N. J. L. 108; duty renders the company liable in dam- New York, &c. R. Co. v. State, 50 N. J. ages to a person injured in consequence of L. 313 ; 32 Am. & Eng. E. Cas. 186 ; such failure, provided such person used Montclair v. New York, &o. R. Co., 45 reasonable and ordinary care to avoid the N. J. Eq. 436 ; Watson v. Lisbon Bridge, danger. Baltimore, &c. E. "Co. v. Botler, 14 Me. 201 ; Titoomb v. Fitchburg E. 38 MJ. 568. Co., ]2 Allen (Mass.), 254 ; White v. " Chesapeake, &c. R. Co. v. Dyer Co., Quincy, 97 Mass. 430 (company bound to 87 Tenn. 712 ; 38 Am. & Eng. E. Cas. 680 keep approach in repair, though it may lie (authorities reviewed), overruling Chesa- beyond the line of its location or right of peake, &c. E. Co. v. State, 16 Lea (Tehn.), way) ; Jfewton v. Chicago, &c. R. Co., 66 300 ; Vosburgh v. Lake Shore, &c. E. Co., Iowa, 422 ; 23 Am. & Eng. R. Cas. 298 ; 94 N. Y. 374 ; 15 Am; & Eng. R. Cas. States. Minneapolis, &c. E. Co., 39 Minn. 249: St. Louis, &o. R. Co. v. Springfield, 219; Caldwell w. Vicksburg, &o. E. Co., &c. R. Co., 96 111. 274; 1 Eedfield on Rys. 41 La. An. 624 ; 39 Am. & Eng. R. Cas.' (3d ed.), p. 404, § 110. Compare, how- 245 ; Mayor, etc. v. Lancashire, c. Ey. ever, Missouri, &c. R. Co. v. Long, 27 Co., 20 Q. B. Div. 485 ; 14 App. Cas. Kan. 684 ; 6 Am. & Eng. R. Cas. 254 ; 417 ; 42 Am. & Eng. R. Cas. 56 ; North Pittsburgh, &c, E. Co. v. Manner, 21 ■ Staffordshire By. Co. v. Dale, 8 E. & B. Ohio St. 421; Brookins i>. -Central, &o. E. 836 ; Eex v. Lindsey, 14 East, 317 j Rex Co., 48 Ga. 523. v. Kent, 13 East, 220 ; Vosburgh v. Lake ' Cooke V. Boston, &o. E. Co., 133 Shore, &c. R. Co., 94 N. Y. 874 ; 15 Am. SEC. 276.] BRIDGES ; OVEE NAVIGABLE WATERS, ETC. 1135 beyond the bounds of its location.^ If a railroad company neglects or refuses to build a suitable bridge over a river, street, or highway, which it is bound by law to build, or if it refuses or neglects to keep the same in repair, it may be compelled to discharge its duty in these respects by mandamus brought by the town or city interested tlierein;'-^ or the municipality may have the construction or repairing & Eng. R. Cas. 249 (purchasing company bound to maintain bridges established by old company) ; People v. New York, &c. R. Co., 89 N. Y. 266 ; People v. Troy, &c. R. Co., 37 How. (Pr. N. Y.) 427 ; People V. N. Y. Central R. Co., 74 N. Y. a02, reversing 12 Hun,(N. Y.), 193. The following appendages have been held to constitute a part of a bridge : abutments, — Bardwell v. Jamaica, 15 Vt. 438, — embankments, — Hayes v. N. Y. Cen- tral R. R. Co., 9 Hun (N. Y.), 63 ; Wat- son V. Lisbon Bridge Co., 14 Me. 201 ; Sussex V. Strader, 18 N. J. L. 108, — and the approaches to a bridge, — New Haven V. N. Haven, &c. E. Co., 39 Conn. 128 ; BuiTctt V. New Haven, 42 Conn. 199 ; White 0. Quincy, 37 Mass, 430, — are a part thereof. Farley v. Chicago, &c. R. Co., 42 Iowa, 234. .In Nicholson v. New York, &Q. E. Co., 22 Conn. 74, the char- ter of a railroad company provided that the company might enter upon and use all such real estate as should be , necessary for them ; that they should be holden to pay all damages that should arise to any person or persons thereby, and prescribed the manner of assessing the damages, if the person or persons to whom such dam- ages Should arise and the company could not agree as to the amount. It also con- tained the following provision : " When- ever for the construction of their said railroad it shall become necessary to inter- sect or cross any stream of water, or water- course, or any road or highway, it shall be lawful for said company to construct said railroad across or upon the same, but said company shall restore the said stream or water-course, or road or highway, thus in- tersected, to its former state, or in sufficient manner not to impair its usefulness." A ' public street in a city, where it was inter- sected by the road, was carried over it on a bridge, and raised on each side of the bridge by embankments, so as to accom- modate its height to the height of the bridge. It appeared that the public safety required that the railroad should pass un- der the street, and that the change made in the street by the bridge and embank- ments was one of the alterations provided for in the charter of the company. B., owning land with buildings thereon, lying upon each side of said street where it was so raised, and no compensation having been made to him, and no damages as- sessed therefor, brought his action against the company for the injury caused by the erection of such embankments. It was held, 1. That the power to regulate, alter, and repair highways might be delegated by the legislature to subordinate corpora:- tions, subject to the liability of making compensation for the property taken and injury occasioned. 2. That the acts of the defendants in question, being for the purpose of making one of the alterations in a highwaj; contemplated in the defendant's charter, were authorized thereby. 3. That although the plaintiff might recover on a count in trespass for any appreciable inci- dental damages occasioned by the acts complained of, the defendants were not liable therefor, of course, and as prima fade trespassers, and that it was a ques- tion for the jury to decide, whether the plaintiff had sustained any such damages thereby or had not, and that trespass is a proper remedy for such damages. It is not necessary that the company should have had knowledge of the defect. It is its duty to keep it in repair, and it must exercise watchfulness to discover its de- fects at its peril. South, &c. R. Co. v. McLendon, 63 Ala. 266. 1 White V. Quincy, 97 Mass. 430 ; Tit- comb V. FitchburgK. Co., 12 Allen (Mass.), 254. 2 Cambridge ». Charlestown Branch R. Co., 7 Met! (Mass.) 70. Where a naviga- tion company, under its charter, destroyed 1136 LOCATION AND CONSTRUCTION. [CHAP. XV. done, and recover its cost of the company.^ And any person sus- taining a personal injury through the. negligence of the company in the discharge of this duty is entitled to recover damages. This' principle goes without authority; the inquiry is always as to the duty of the company, and as to whether it exercised ordinary care in order to discharge it properly. In one case while the plaintiff was driving across a bridge which formed the highway over defend- ant's road, his horse became frightened by the noise and escaping steam of the engine, and dashed against the iron railing of the bridge. This railing was defective, and horse and driver together were pre- cipitated to the road-bed below, a distance of fourteen feet. The court held that plaintiff should recover ; that it was the duty of the company to keep the railing on such bridges in good order, and that having, failed it must be held liable, although the frightening of the horse was not attributable to it.^ The court further held that it was as much the duty of the company to take care of the approaches to the bridge as of the bridge itself, and was bound to construct and maintain them in a proper state.^ Numerous other cases sustain the injured party's right of action under similar circumstances.* A a ford and substituted a bridge, it was held that they were liable to keep the bridge in repair. Ee.x v. Inhabitants of Kent, 13 East, 220 ; Rex v. Inhabitants of Lindsey, 14 East, 317. So, too, wher£ such company cut through a highway, rendering a bridge necessary to carry the highway over the cut, the company are bound to keep such bridge in repair. Rex v. Kerrison, 3 M. & S. S26. This duty may be enforced by indictment. Regina v. Ely, 19 L. J. (M. 0.) 223. And the same obligation rests upon the assignees of the company. Penn- sylvania R, Co. V. Duquesne, 46 Penn. St. 223. So, where a navigation company had power to use a public drain, upon substi- tuting another, or others, it was held that the company were bound to keep in repairs the substituted drains, as well as to make them. Priestly v. Foulds, 2 M. & G. 175. Under the English statute (8 and 9 Viet. c. 20), where a company carries a highway, by means of a bridge, over the railway, it is bound to maintain the bridge and all the approaches thereto in repair ; and such re- pair includes not only the structure of the bridge and the approaches, but the metal- ling of the road on both. Newcastle, &c. Turnpike Co. v. North Staf. Ry. Co., 5 H. & Sr. 160. But this will not include the road beyond, where it may properly be regarded as forming an approach to the bridge. W. & L. Ry. Co. v. Kearney, 12 Ir. Com. L. 224 ; Fosberry v. Waterford, &c. Ry. Co., 13 Ir. Com'. Law, 494 ; Lon- don, &c. Ry. Co. ('. Skerton, 5 B. & S. 559. 1 Chesapeake, &c. R. Co. v. Dyer Co., 87 Tenn. 712; 38 Am. & Eng. R. Cas. 676. 2 Titcombi). FitchburgR. Co., 12 Allen (Mass.), 259. » Titoomb'u. FitchburgR. Co., 12 Allen (Mass.), 259 ; Com. n. Deerfield, 6 Allen, 449 ; Parker v. Boston, &c. R. Co. , 3 Cush. (Mass. ) 107. * Rembert v. So. Car. R. Co., 31 S. C. 309; 39 Am. & Eng. R, Cas. 252 ; Mayor, &o. V. Lancashire, &c. R. Co., 20 Q. B. Div. 485 ; 14 App. Caa. 467 ; 42 Am. & Eng. R. Cas. 56 ; Quimby v. Boston, &c. R. Co., 69 Me. 340 (party injured by de- fective foot bridge leading to station) ; Vicksburg, &c. R. Co. v. State, 64 Miss. 5 ; Baltimore, &c. R. Co. v. Hotter, 38 Md. 568. In Gulf, &c. R. Co. v. Gasoamp, 69 Tex. 545 ; 34 Am. & Eng. R. Cas. 6, it SBC. 276.] BEIDGES : OVER NAVIGABLE WATEES, ETC. 1137 provision in the charter of the company that if the company fails or refuses to construct and repair bridges the land-owner may do so and recover their value, is a mere cumulative remedy, and does not affect the right of action for an injury resulting from a defective construction.^ The company is not bound, however, to anticipate that foot passengers will attempt to use its bridges which are con- structed solely for the passage of its trains, and it is, therefore, not liable for- injuries occurring to persons so using the bridge.^ It is an important duty incumbent upon the company in con- structing bridges over its roddway, so to construct them, when practicable, that they will not be the cause of injury to its servants ' while riding on top of its cars. If such a construction is imprac- ticable, proper provision must be made to prevent injury as far as possible, by having guards which will warn train hands of the prox- imity of a bridge.* The risk of being struck by a low overhead bridge is not one of the risks assumed by the servant upon entering the employment of the company as a brakeman or train hand, and he is entitled to recover for such an injury,* unless he has had abun- dant notice of the existence and danger of the bridge, or is aware of it.^ This subject is discussed further on.® was held that a person on horseback who 555 ; 15 Am. & Eng. E. Cas. 481. But it attempts to cross a bridge maintained by has been held liable for a horse killed by the company as a part of the crossing over its train on one of its bridges which abutr its right of way, suph bridge being the only ted on a highway, on the ground that the practicable crossing for the dir^tion he road was not properly " fenced." Cincin- wishes to- travel', be is not guilty of coutri- nati, &c. R. Co. v. Jones, 111 Ind. 259; bntory negligence which will bar his action 31 Am. & Eng. R. Cas. 491. for injuries sustained by reasons of defects ' Louisville, &c. R. Co. v. Wright, 115 in the bridge, although he knew of such Ind. 378 ; 33 Am. & Eng. R. Cas. 370 ; defects. Citing, Erie v. Magill, 101 Penn; Baltimore, &c. R. Co. . Rowan, 104 Ind. St. 616 ; Scfhaefler v. Saiidusky, 33 Ohio 88 ; 23 Am. & Eng. R. Cas. 390 ; Warden St. 246 ; Ctntralia w, Krous^, 64 111. 19 ; v. Old Colony R. Co., 137 Mass.. 204 ; 21 , Parkhill v. Brighton, 6l' Iowa, 101 ; Wil- Am. & Eng. E. Cas. 612. In this last son u. Charlestown, 8 Allen (Mass), 137. case the injury resulted from a defective See also Gordon u, Belleville, 15 Ont. Rep. bridge guard. The first of these cases con- 26 ; 20 Am. & Eng. Corp. Cas. 341. The siders the law on this subject at length, railroad company is entitled, however, to See the law also very clearly stated in the same notice of defects, which is re- Louisville, &c. R. Co. ii. Hall, 87 Ala. 708; quired under the Massachusetts law, as 39 Am. & Eng. E. Cas. 298. See post, municipalities, and if such noticehas not Chapter XXIII. been given recovery cannot be had. See *> Louisville, &c. R. Co. v. Wright, 115 Dickie H. Boston, &o. R. Co., 131 Mass. 516. Ind. 378 ; 33 Am. & Eng. R. Cas. 370. 1 Green v. Morris, &c. R. Co., 24 N. ' Carbine v. Bennington, &c. R. Go., J. L. 486. 61 Vt. 348 ; 38 Am. & Eng. R. Cas. 45 ; 2 Krouty v. Chicago, &e. R. Co., 65 Hooper ■!). Columbia, &c. E. Co., 21 S. C. Iowa, 224 ; 18 Am. & Eng. R. Cas. 85 ; 541 ; 28 Am. & Eng. R. Cas. 433. State V. Philadelphia, &c. E. Co.j 60 Md. « See Chapter XXIII., posi. 1138 LOCATION AND CONSTRUCTION. ^ [CHAP. XV. Sec. 277. Contracts for Construction of the Road. — Contracts for the building of railways are subject to the same rules of construction as other contracts, and would require no notice in this work except for their peculiar character. The work is usually let out to con- tractors, and the bids therefor are predicated upon the estimates of the engineers, and the acceptance thereof dependent upon the deter- mination of the engineers. The time within which the road shall be built is often fixed in the charter, and the manner in which the work shall be done is a matter of great public concern, as the safety of travellers over it depends upon the stability and excelleijice of the work. For this reason, the law tolerates and enforces provisions in such contracts which might not be regarded as binding in the case ' of ordinary contracts. Thus, it is not unusual for the contract to impose penalties upon the contractor for slight deviations from the terms of the contract, or to reserve to ' the company the right to ter- minate it for slight causes. It is also generally provided that the quality and quantity of the work done shall be determined by the company's engineer, and that his certificate shall be the only evi- dence of performance, and of amounts upon which payments shall be made ; ^ and in the absence of fraud or such gross error as to indicate bad faith, such provisions are binding,^ and no recovery Can be had except in accordance with such estimates unless it can be shown that the engineer acted fraudulently, or his estimates are so grossly I ^ In re "Wansbeck Ry. Co., L. R. 1 C. v. Chicago, &o. R. Co. (Mich.), 51 K. W. P. 269 ; Ranger I). Great Western Ry. Co., Rep. 883; 19 Am. & Eng. Ency. Law, 5 H. L. Cas. 72 ; Herrick v. Belknap, 27 874. In the case of Lauman v. Young, Vt. 673 ; O'Beilly v. Keans, 52 Penn. St. 31'Penn. St. 306, the court, quoting from 214; Howard !). Allegheny Valley R. Co., the case of Fox v. Hempfleld R. Co., 2 69 Penn. St. 489. Abb. (U. S.) 151 (before Gbibb, J.), laid ^ McMahon v. New York, &c. R. Co., down the rule that a stipulation in such 20 N. Y. 463 ; Martinsburg, &o. B. Co. v. contracts that " the decision of, the chief March, 114 U. S. 549 ; Chicago, &c. R. engineer .shall be final and conclusive in Co. i). Price, 138 U. S. 135 ; 47 Am. & any dispute which may arise between the Eng. R. Cas. 298 ; Ross v. McArthur parties to this agreement , relating to, or (Iowa), 52 Am. & Eng. R. Cas. 1 ; Lewis touching the same, and each and every V. Chicago, &c. R. Co., 49 Fed. Rep. 708 ; of said parties do hereby waive any right 52 Am. & Eng. R. Cas. 8 n. See also of action, suit or suits, or other remedy in as to construction contracts, Guilbalt v. law, or otherwise by virtue of such coye- McCreevy, 18 Sup. Ct. of Can. 609 ; 52 nant, so that the decision of the engineer Am. & Eng. B. Cas. 11 n (estimates shall be final and conclusive on the rights of contractor's engineer as condition pre- and claims of the said parties," is valid cedent to subcontractor's right to recover and binding, and will preclude an action compensation) ; Battle v. McArthur, 49 at law in reference to matters embraced in Fed. Rep. 715; Johnson v. St. Louis, the submission. And this is the general &c. R. Co., 141 U. S. 602 ; Quackenbush doctrine in this country. SEC. 277.] CONTRACTS FOE CONSTKTJCTION, ETC. 1139 erroneous as to indicate a want of good faith. ^ So, too, it is often provided in these contracts that the engineer shall determine the amount of penalties which shall be imposed for breaches of the con- tract by the contractors, and it is held that such penalties, whether specifically fixed in the contract or determined by the engineer as 1 In a late case in one of the Federal Courts, Lewis v. Chicago, &g. R. Co., 49 Fed. Rep. 708, the court, in upholding the validity of a contract in which it was agi-eed that the engineer's measurements and calculations of the quantity ^nd amount of the several kinds of work, and also his classification of the material con- tained jn excavations should be final and conclusive, went on to say : " This clause (as to the engineer's estimates, etc.) is a valid provision, and is binding upon the parties to the agreement. Therefore, there can be no recovery in excess of the engi- neer's final estimates, unless such estimate is successfully assailed for fraud, gross errors, or mistake. Martinsburg, &c. R. Co. .,. March, 114 U. S. 549 ; Wood ■■;. Chicago, &o. R. Co., 39 Fed. Rep. 62, and cases cited ; Sweet v. Morrison, 116 N. Y. 19 ; Brush v. Fisher, 70 Mich. 469. The estimate may be impeached for fraud ; that is to say, it may be shown that the engineers in charge intentionally under- estimated or overestimated the work. It may also be impeached by proof ^of gross errors in the measurements or calculations. If the evidence shows such errors, it either creates the presumption of fraud, or war- rants the conclusion that the engineers did not exercise the degree of care, skill, and good faith in the discharge of their duty which the law exacts ; and in either event, the court will disregard the estimate so far as is necessary to do substantial jus- tice. The meaning of the word ' mistake,' as above employed, must be carefully defined: " (a) The court will relieve against mis- takes in measurements and calculations that are apparent on the face of the estimate, or that are clearly proven, though not so apparent. " (6) If it is satisfactorily shown that the engineers failed, through oversight, to measure or estimate any particular part of the work, the court will grant relief as to such mistakes. " (c) If it appears that the engineer in charge put a wrong construction on any provision of the' contract, the court will correct any substantial errors resulting from such mistake, for the reason that the pasties did not make the, decision of the engineer as to the proper interpretation of the contract final and conclusive. It is the province of the court to construe the agreement. Bridge Co. v. St. Louis, 43 Fed. Rep. 768. " (d) But in determining the kind of material found in the several cuts, the engineers were called upon to exercise their judgment. That was a matter, as the contract in substance recites, which in- 'volved the exercise of special skill and attention as the work progressed, and for that reason the parties selected an umpire, by whose judgment they agreed to be ■ bound. Ranger v. Railway Co., 1 Eng. Ry. Cas. 1 ; 13 Sim. 368. The court will, not undertake to revise the decision of the engineer on questions of that charac- ter, if it appears that he acted in good faith. The utmost it can do is to correct errors of classification that may have resulted from an erroneous interpretation of the contract. " (e) Slight discrepancies in measure- ments made by the respective parties must also be disregarded ; and even whei^ there are discrepancies of some magnitude, the court must accept measurements made- by the engineers of the railway company, unless the proof clearly shows that they are erroneous. The presumption is, that all measurements made by such engineers are correct, and the burden is on the plain- tiffs to overcome that presumption. Tor- renee v. Amsden, 3 McLean (U. S.), 509; Bumpass u. Webb, .4 Port. (Ala.) 65 ; Pleasants w. Ross, 1 Wash. (Va. ) 156." Lewis v. Chicago, &c. R. Co., 49 Fed. Rep. 708 ; 52 Am. & Eng. R. Cas. 9 n. 1140 LOCATION AND CONSTEUCTION. [OHAP. XV. Stated, are in the nature of liquidated damages.^ But where the prices at which work shall be done are specifically fixed in the con- tract, the, engineer, who is by the terms of the contract made an umpire as to all disputes between the parties, has no power to fix another or different price or measure of compensation .^ And if payments are to be made according to the estimates and certificate of the engineer, if he refuses to make such estimates, or if he make erroneous estimates, it has been held that an action lies to recover for the work actually done, although the contract provides that all disputes between the parties shall be referred to the engineer, and that his decisidn shall be final." But in England the rule is that an action cannot be main- tained at law until the engineer's certificate is obtained ; * and it is held that relief in such cases should be sought in a court of equity,^ and such also seems to be the rule in mpst of the States of this coun- try ; ^ and if fairly made, such^contracts will be enforced.^ But an unreasonable delay on the part of the engineer to make his estimates, if arising from the fault of the company or of the engineer, will en- title the contractor to bring an actjon at law, as in ordinary cases.^ If the contractor might have refused to abide by the final esti- mate of the engineer, yet having submitted to him his charges for 1 Ranger v. GreatWestern Ey. Co., 5 Hare, 136; Waring u. Manchester Ry. Co., H. L. Caa. 72 ; Philadelphia, &o. R. Co. 7 Hare, 482. V. Howard, 13 How. (U. S.) 307. » Herrick v. Vt. Central R. Co., 27 Vt. 2 Starkly v. De Graff, 22 Minn. 431. 673 ; Vanderwerk.er v Vt. Central R. Co., » In Kestler •». Indianapolis, &o. R. 27 Vt. 130 ; Alton, &o. E. Co. v. North- Co., 88 Ind. 460, it was held that such cutt, 15, 111. 49 ; Kidwell v. Baltimore, provisions in a contract are opposed to &o. E. Co., 11 Gratt. {Va. ) 676; Lan^nan public policy, and are void. And this v. Young, 31 Penn. St. 306 ; MoMahon v. view has been adhered to in a later case, New York, &c. R. Co.," 20 N. Y. 463; Louisville, &o. R. Co. w. Donegan, 111 Ind. Delaware, &c. Canal Co. v. Pennsylvania 179 ; 34 Am. & Eng. R. Ca.s. 116 ; Bauer Coal Co., 50 N. Y. 250 ; Mitchell v. V. Sampson Lodge, 102 Ind. 262. See . Kavanaugh, 38 Iowa, 286 ; Eaton i/. also Starkey v. De Graff, 22 Minn. 431. Penn., &c. Canal Co., 13 Ohio St. 81 ; * Partes v. Great Western Ry. Co.< 3 Keller v. McCauley, 180 Penn. St. 53 ; 40 Ry. Gas. 17. For a breach of the construe- Am. & Eng. R. Cas. 509 ; Fox i). Railroad tion contract the injured party has a right Co., 3 Wall. (U.S.) 243; Martinsburgh. of action against the party guilty of the &c. E. Co. v. March, 114 U. S. 549. breach, just as in case of other contracts. ' Phelan v. Albany, &e. R. Co., 1 Lans. For cases involving such actions, see (N. Y. ) 258 ; Howard v. Allegheny Valley Brantford, &c. E. Co. v. Huffman, 19 R. Co. , 69 Penn. St. 489 ; Condon «. South Slip. Ct. of Can. 336 ; 52 Am. & Eng. R. Side R. Co., 14 Gratt. (Va.) 302; Faunce Cas. 12 ; Mobile, &c. R. Co. v. Worthing- v. Burke, 16 Penn. St. 478 ; Hennessey v. ton (Ala.), 10 So. Rep. 839; 52 Am. & Farrell, 4 Cush. (Mass.) 267; Mansfield, Eng. R. Cas. 1'2 ; Middleton Furniture &o. R. Co. v. Viedcr, 17 Ohio St. 385 ; Co. V. Philadelphia, &c. R. Co., 145 Penn. Reynolds v. Caldwell, 51 Penn.' St. 298. St. 187 ; 52 Am. & Eng. E. Cas. 15. 8 Grant v. Savannah, &o. R. Co., 51 ' In re Wansbeok Ry. Co., L. R. 1 C. Ga. 348 ; Atlanta, &c. R. Co. i P. 269 ; Nixon t. Taff Vale Ry. Co., 7 ham, 49 Ga. 266. SEC. 277.] CONTRACTS FOR CONSTRUCTION. 1141 the work done, and not having objected to his proceeding to make up the final estimate, the contractor is concluded by the action of the engineer ; ^ but his estimates and decisions are conclusive in disputes with contractors only where such is the positiye stipulation in the contract.^ Th^ provisions of a contract between a railway company and a contractor, for building a portion of its road, that the " engineer shall be the sole judge of the quality and quantity of all work herein specified, and from his decision there shall be no ap- peal," and that in case of alterations, " such allowances and deduc- tions shall be made therefor as the engineer may jiidge fair and equitable to both parties," constitute the engineer sole umpire ; and if the company furnish a suitable engineer, no recovery can be had for work done under such contract without or beyond his estimate, without the most irrefragable proof of mistake in fact, or corruption on the part of the engineer, or positive fraud in the opposite party in procuring the under-estimate. Such a stipulation does not re- quire the estimates to be made or verified by the chief-tengineer, but has reference as well to the assistant-engineer. A contract provid- ing for monthly estimates imports an accurate measurement and final estimate for each month, and not such a one as is merely ap- proximate or conjectural ; and a court of equity has jurisdiction of a claim to be paid for a larger amount of work done under such a contract than" was estimated by the engineer, where the under-esti- mate was occasioned either by fraud or mistake. Thus, the defend- ant contracted with B. to build its road, and B. sublet a portion of the work to H. Both contracts contained a provision as to the con- clusiveness of the engineer's estimates. It was held that there was no privity of contract between the defendant and H., and that he could not recover against the defendant for work not estimated by the engineer, by reason only of a mistake which defendant had not connived at ; and that the indebtedness of the company to B. did not constitute a fund against which the plaintiff had a claim. But it was held that had there been any connivance on the part of the company or its agents, in bringing about the under-estimates, a different rule would prevail.* In a contract for the construction of a railroad, it was provided that the decision of a chief-engineer should be final 1 Kidwell V. Baltimore & Ohio R. R. ' Vanderwerker v. Vt. Central, R. R, Co., 11 Gratt. (Va.) 676. Co., 27 Vt. 130 ; Herrick v. Vt. Central " Memphis, Clarksville, & Louisville E. E. Co., 27 id. 673 ; Palmer v. Clark R. R. Co. V. Wilcox, 48 Penn. St. 161. 106 Mass. 376. 1142 CONSTRUCTION OF KAILEOADS. [CHAP. XV. and conclusive, in any dispute that might arise between the parties to the agreement, relative to or touching the same : it was held that the individual who filled the ofiace of chief-engineer when the adju- dication was called for, was the proper person to decide disputes between the parties ; and that one who had held the office at the time the contract was made, but who had resigned, was not empow- ered to adjudicate between them.^ Where parties agree that a third person shall measure certain work, and that his measurement shall be conclusive, sv^ch person can- not delegate Ms authority to some one else, and adopt the measurement as his ovm ; the parties will not be bound by such measurement.^ Where the plaintiff agreed to perform certain work in moving the track of a railroad, " under the direction " and "to the satisfaction " of L., the city surveyor, whose certificate that the work had been so performed was to entitle the plaintiff to payment, and the plaintiff, having completed the greater part of the work, was stopped at a certain point by L, it was held that L. had power, under the con- tract, to give that direction, and that the plaintiff had a sufficient excuse for non-performance of the remainder of the labor ; and that, therefore, it was unnecessary to procure the certificate of L. that the contract had been entirely performed, as a prerequisite to his recovery * In such contracts 'there is an implied agreement that a suitable engineer shall be employed, and the party who neglects to furnish such engineer is liable to an action, and can take no advan- . tage of his failure* A contractor for the construction of a bridge on a railroad, having received the monthly estimates based upon a particular construction of his contract without objection, will be held to have acquiesced in that construction, and to be bound by it.^ 1 If the company failed to appoint a abrogate the contract or suhstftute a chief engineer, the parties would be at new one ; they were within the original liberty to resort to the courts of law. contract. But work done after the job North Lebanon E. B. Co. -u. MoGrann, had been taken off the oontrafitor's hands 33 Penn. St. 530. Whether a stipulation by the company, was held not to have in the original agreement to refer all been done under the contract, and pay- matters of controversy that may arise con- ment for it might be recovered in assnmp- nected with the contract, to an engineer sit. O'Reilly v. Kerns, 52 Penn. St. 214. of one of the parties, would be binding, is " Wilson v. York, &c. R. Co., 11 G. & doubted in New Hampshire. Smith v. J. (Md.) 68 ; Snellr. Brown, 71 111. 133. Boston, Concord, & Montreal R. R. Co., » Devlin v. Second Avenue R. Co., 44 36 N. H. 458. The contract provided Barb. (N. Y.) 81. that alterations directed by the engineer ■ * Sjnitht). Boston, &c. R. Co., 86 N. H. should " be made as directed." Such al- 458, terations are within the jurisdiction of the ' Kidwell v. Bahimore, &c. R. Co., 11 en^neer. Alterations directed did not Qratl. (Va.) 678. SEC. 278.] ABANDONMENT OP CONTEACT, ETC. 1143 The parties are not bound by the fraudulent estimates of an engi- neer.^ Under a contract by which all measurements are to be made, and the amount of labor determined, by the company's engineer, whose' decision is final, the contractor is entitled to notice and the opportunity to be present; he is not concluded by measurements made ex parte? A court of chancery has power, to correct the mistakes of the eiiginepr, and in construing the contract the court will use the terms employed by the parties according to their popu- lar signification, if to apply them according to technical or scientific rules would defeat the manifest intention of the parties.^ A con- tract providing that the engineer of the railway company should be arbiter of all disputes under the contract will be disregarded in equity, when it appears that the engineer is a stockholder in the company, which fact was unknown to the plaintiff when the contract was made ; and the award of such engineer will be set aside.* Sec. 278. Abandonment of Contract : new Agreement. — Where a contract has been partly performed and has been abandoned by mutual consent, the plaintiff may recover for what has been already done under the special contract.^ Where, during the progress of the work; a new agreement was made, releasing the contractor from finishing his contract, and stipulating for what matters compensa- tion should be made, but not providing for any damages for the suspension of work during the existence of the original contract, it was not error, after af&rming the point of the defendants, that no such damages could be claimed, to add that the question was not material, because of the supplemental agreement, which provided for 1 Baltimore & Ohio R. R. Co. v. Polly, being ascertained by calculation merely, 14 Gratt. (Va.) 447 ; Same v. Lafifertys, or by reference to ordinary market rates. ib. 478. » Mansfield & Sandusky E. E. Co. v. 2 McMahon v. New York & Erie R. R. Veeder & Co. , 17 Ohio, 385. Co., 20 N. Y. 463. In this case it was held * Milnor v. Georgia R. E. Co., 4 Ga. that a final estimate made by the engineer 385. beinga condition precedent to payment, and * Baltimore & Ohio R. R. Co. «. his employer having refused to have a meas- Lafferty, 2 W. Va. 104. In an action urement made, or those already made re- to recover for services in building a ceived by him, the contractor is not bound railroad, entries in the contractor's books to call upon the engineer to make such esti- of prices paid to his workmen are not evi- mate, but may recover upon other evidence dence against him of the prices he was to of the amount of work. And the defend- receive. If the question was as to the ant having neglected to cause its engineer reasonable, value of his services, they are to make a final measurement and estimate admissible, because tending to show the of the work, when requested by the con- worth of one item of his claim, that is, of tractor, interest was held to be allowable the muscular power employed. Currier v. from the time of such default, though the Boston & Maine E. R. Co., 31 N. H. amount was not liquidated nor capable of 209< 1144 CONSTEUCTION OP KAILEOADS. [CHAP. XV. no such compensation. Though the plaintiff has been dismissed, and the work taken off his hands, the company is not released from paying for the work already done, as stipulated in the supplemental agreement, what it was fairly worth ; nor can this claim be restricted to what is coming to him' under the final estimates of the engineer ; nor after the agreement to pay, can the company set off the expense and loss incurred in completing the unfinished work.^ Sec. 279. Extra Work, — Where, under a contract to build a railway at a certain price per mile, nothing is said about side tracks and turn-outs, and the contractor has received monthly payments on monthly estimates, and has made no claim to payment for such side tracks, etc., such fact is a practical construction of the contract against the right of the contractors to claim pay for such work.* B. contracted with defendant to build its road, and plaintiff sub- contract'ed, in writing, with B. to build particular portions of it. By both contracts, the work was to be done to the satisfaction and ac- ceptance of the company's engineer, and no claim was to be allowed for extra work, unless it was performed under written contracts, or orders signed by the engineer. The plaintiffs, in the execution of their contract with B., made an excavation for a bridge, agreeably to the directions of the engineer, and had left it as finished ; the engineer found it necessary to have the excavation enlarged, and ordered it done. The plaintiffs made the enlargement, but no con- tract was made between them and the defendant with reference to it. It was held that there was no ground for implying or presuming a contract, and that the plaintiffs could not recover of the defendant therefor, as the engineer had not ordered it in writing ; ^ and that the fact that the company had paid similar claims to others would not affect its liability, unless such fact was known to plaintiffs, and in- fluenced them to perform the work. The rule is not varied by the fact that, previous to doing the extra work, the contractors were assured by the local or assistant engineer, who communicated the order from his chief, that they should receive extra compensation 1 Memphis, Clarkaville, & Louisville a contract for building an embankment E. R. Co. V. "Wilcox, 48 Penn. St. 161. was silent as to where the contractor was 2 Barker v. Troy & Eutland E. R. Co., to get the earth, and the parties . them- 27 Vt. 766. Where a contract is silent as selves gave a construction of it, they will to the time o? payment, and the parties be bound by it. Chicago & Great Eastern have put a ccnstruotion upon it by their E. R. Oo. v. Vosburgh, 45 111. 311. acts, such construction is binding upon the ' Vanderwerker v. Vt. Central E. B. parties. Boody v. Rutland & Burlington Co., 27 Vt. 125 ; Barker v. Troy & Rut- R. R. Co., 3 Blatch. (U. S. C. C.) 26. Where land R. R. Co., 27 id. 766. SEC. 279.] EXTRA WORK. 1145 therefor, — it appearing that the assistant had no authority to make the promise for the company.^' In a Connecticut case certain de- tailed estimates of the cost of the work were annexed to a contract for the construction of a railway. Shortly before the contract was made, many persons, and among them B., C, & Co., were assembled to make proposals to the railroad company for the work. These estimates were exhibited to them by the engineer of the company, who stated that they were made according to his best judgment, but were only approximate estimates ; that they were given them that they might have the benefit of his judgment, and that they could go over the ground and examine for themselves. B.', C, & Co. went over the ground, and were experienced and competent to judge for themselves, but did not make a thorough examination. The contract was made fairly, without fraud or mistake, and was an entire con- tract to do the whole work for the sum of two hundred and ninety thousand dollars. A portion of the work proved to be much more expensive than was estimated, from a large excess of rock excavation above the quantity estimated. It was held that B., C, & Co. under- standingly took the risk of the work, and were not entitled to any allowance beyond the contract price. By the terms of a contract, certain depot buildings were to be erected by the contractors " after such plans and of such dimensions as might be adopted by the engineer." The engineer required certain of them to be built of somewhat larger dimensions than he had stated at the time of the signing of the contract that he should require, and the expense of their erection was thereby increased above the sum named in the estimates. It was held that the contractors were not entitled to an allowance beyond the contract price for the increased expense.^ Where a contract for the excavation and preparation x>f a road-bed provided that the contractor should be paid a certain price per yard for every cubic yard of earth, and extra compensation for rock excavations, it was held that he was not entitled to extra compensa- tion for excavating hardpan. Where extra compensation is claimed in a quantum meruit, where there is a written contract, the party claiming it must show that the work was more than was required under the contract;^ and a promise by the president of the com- pany, conceding the company to be bound by it, to compensate a * Vanderwerker v. Vt. Central R. E. ' Nesbitt v. Louisville, Cincinnati, & Co., id. 125. Charleston R. R. Co.,^2 Spears (S. C), * Cannon v. Wildman, 28 Conn. 472. 697. VOL. II. —22 1146 CONSTRUCTION OP KAILROADS^ [CHAP. XV. contractor for excavating hardpan, is not binding as a legal con- tract, where the contractor is bound by his written contract to exca- vate that substance.^ In another case the plaintiff having con- tracted to procure the right of way, and build the defendant's road at an agreed price per mile, and not having paid the land-owner's damages in all cases, it was held that the defendant, being liable directly to the land-owners, might retain the amount of that liabil- ity from the sum which by the contract would be due to the plain- tiff,2 So where it was stipulated, in a contract for building a railroad, ihat if the aggregate amount of all material encountered in con- structing it was increasied by the definite location over the prelimi- nary estimate, an allowance should be made, it was held that an averment, that the amount of material encountered was increased, etc., was in effect the same as the amount of all material, and that thei stipulation did not apply to an increase of the aggregate of each kind of material, but that the aggregate of all kinds must be in- creased ; and where the company agrees to furnish the materials, there is an implied contract that the materials shall be seasonably furnished.* Sec. 280. Entire Contract — If a contractor agrees with a rail- road company to grade a section of its road, and do all work neces- sary to make the road ready for the cross-ties and iron, and to receive a fixed sum for the work, to be paid from time to time as the work progresses, at the prices fixed and estimates of work done made by an engineer, — the contract is entire, and the provision for payments from time to time as the work progresses does not make it sever- able;* and even where the by-laws of the defendant provided that interest should be allowed on all instalments for work until the road 1 Where a builder undertakes to con- contracted to build certain abutments, and struct a building according to a plan, the contract specified that a certain kind which is afterward changed by agreement of stone might be used. The stone agreed of the parties, so as to require extra work upon was used, and after the completion and materials, and no agreement was made of the work, a defect was discovered in it, in reference to the price of extra work, it but it did not appear whether the defect would be inferred that the price agreed in was owing to the quality of the stone or the original contract would govern in to the badness of the workmanship. It determining the compensation. Chicago was held that the jilaintiffs were entitled & Gt. Eastern R. R. Co. v. Vosburgh, 45 to recover the contract price, unless it was 111. 811. shown that the defect was in the work- 2 Barker D. Troy &Eutl!ind R. R. Co., manship. Vanderwerker v. Vt. Central 27 Vt. 766. R. R. Co., 27 Vt. ISO. " Smith 1). Boston,' Concord, & Mon- * Cox v. Western Pacific R. R. Co., H treal R. R. Co., 36 N. H. 458. Plaintiffs Cal. 18. SEC. 282.] PAYMENTS IN STOCK. [147 was completed and in running order, it was held that the defendant could not recover of the plaintiffs, who had contracted to construct and complete the road by a specified time, the interest which accrued upon the instalments betweeii that time and the time when the road was actually completed.^ • Sec. 281. Modification of Contract. — A written contract under seal may be so changed and niodified by the parties as to reduce the whole to parol. I'hus, a written contract for the grading and ma- sonry of a railroad between designated termini is not so altered and modified by a change of route between such termini, as to enable the contractors to recover for the work done, upon a quantum meruit, \ irrespective of the prices designated in the agreement. But where pq,yments were made in such a case upon monthly estimates, upor» the prices specified in the contract, and were receipted for as under the contract, the parties were held to have waived the consequences of a previous change. So where there 'have been considerable changes and modifications, without any intention to abandon or rescind the written agreeiiient, assumpsit may be sustained for the work per- formed, making the sealed agreement the basis of compensation.^ Where A. entered into a contract with the defendants to do certain work in excavating for a railway, and after commencing work, unex- pectedly encountered very difficult material, and gave notice to the defendants that he could not do the work under the contract, and quit work, and afterwards the defendants agreed to pay hitti a rea-" sonable compensation for his labor, — it was held that defendants were liable, under the new contract.^ Where the contract provides that upon receiving the full amount of the final estimate, made out agreeably to the terms of the contract, the contractor shall give a. release under seal from all claims or demands growing out of such contract, the giving of such a release is a condition precedent to a re- covery, if the final estimate is not fraiidulent.* Sec. 282. Payments in Stock. — When a contract is entered into for work at a certain price, with a stipulation that the same is to be paid for in specific articles at a certain rate or price, the debtor has an election to deliver the articles, or pay the' specified amount of money, if such right of election is expressed or fairly to be implied. 1 Barker v. Troy & Rutland E. R. Co., ' Hart v. Lauman, 29 Barb. (IT. Y. ) 410. 27 Vt. 766. * Baltimore & Ohio R. R. Qo. v. Laf- 2 McGrann v North Lebanon R R. fertys, 14 Gratt. (Va.) 478, 1858 ; Balti- Co., 29 Penn. St. 82. ' more, &o. R. R. Co. i;. Polly, id. 447. 1148 CONSTKUCTION OP RAILROADS. [CHAP. XV. If such elecfcion is not expressed, and the subject matter of the contract or res gestm indicate that no such right of election was con- templatied by the parties, then the general rules of \a,w relating to executory sales are applicable, and the contract is a single and imperative promise to deliver the specifio articles.^ Thus, a railroad contractor agreed with the.company to construct and equip its entire road for one million dollars, of which two hundred and fifty thou- sand dollars was to be paid in cash and cash assets, and the balance in the bonds and stock of the company, the price named being more than twice the cash value of the work The contract provide^ that payments should be made on monthly estimates, and^ in such of the said descriptions of payment as the contractoi; deemed would best subserve his purpose in doing the work ; but the contract fixed no time for the completion of the work. It also provided that both the parties should aid in converting said assets, bonds, and stock into means for carrying on the work, and that the contractor need not carry it on faster than such means would serve. The contractor performed work undex the contract to the nominal amount of one hundred and seventeen thousand dollars, which, at his request, was mostly paid him, in the cash assets, and then, the charter of the com- pany having expired by its own limitation, the work was. suspended by mutual consent, and the road abandoned, its bonds and stock thus becoming worthless. It was held that the contractor was bound to account to the company for all actual profits realized from the work.^ 1 Cleveland & Pittsburgh R. R. Co. v. MserTed by the company to pay either in Eelley, 5 Ohio St. 180. their stock, or in money, but that it is an 2 Four Mile-Valley R. R. Co. v, Bailey, absolute undertaking to deliver so much 18 Ohio St. 208. If the contractor per- stock as shall, at its par value, be equal forms extra work, he is entitled to recoverfor to one-fourth the amount d)ue the contrao- that, in money, upon an implied promise, tor. It does not readily occur to us how notwithstanding by his contract he was to this relieves the question from the appar- accept part of his pay in stock for all work ent violation of principle, in allowing the done under the contract. In the case of company to refuse to give certificates of Cleveland, &c. , E. R. Co. v. Kelley, 5 their own stock which they have contracted Ohio St. 180, it is held that where one- to do, and at the same time pay less than fourth of the amount due the contractors its par value. It is, in ordinary cases, is to be taken in the stock oHhe company, equitable, no doubt, and always where and the company refuses to deliver the the refusal is upon the ground that noth- stock on request, they are only liable for ing is due the contractor. The point of the market value of the stock at the time the decision is thus summed up by Swan, it should have been delivered. The court J. " For these reasons we are of the profess to base their opinion iipon the opinion that no such election was oontem- ground that in contracts of this character plated by either of the parties when the there is not understood to be any election contract was entered into ; that the law SEC. 282.] PAYMENTS IN STOCK. 1149 In a Vermont case the plaintiffs, for constructing a railway, were to receive in payment a certain portion of the defendant's stock. Upon finishing the work, they demanded their pay, but the defendant dis- puted the performance of the contract, and refused to deliver the stock. At that time, the market price of the stock was 33 per cent relating to trade notes and contracts of a like kind, has no application to the agree- ment between the.se parties; that it was an exchange of work for stock, in which . monetary terms were necessarily used, not for the purpose of expressing real values, hnt as the only mode of expressing quan- tities and proportions ; that the fourth to be taken in stoclc was not a money in- debtedness, but a stock indebtedness ; and, consequently, that the company could derive no benefit from the increased value of the stock, and could suffer no loss by its depreciation ; the damages which the contractors suffered from the non-de- livery of the stock being its market value." See also Boody v. Rut. & Bur. R. R. Co., 24 Vt. 660. In this case it was held that the defendants having given their creditors a mortgage upon their road, after the con- tract with the plaintiff, did not excuse him from accepting the stipulated propor- tion of the payments in stock. Nor can the contractors, in such case, refuse to re- ceive the stocJj because the legislatm'e, in the mean time, altered the chaiter of the company, by which the capital stock and debt of the company were increased ; nor because the company voted not to pay interest on the stock, it not appearing that the value of the stock had been affected by either. Moore v. Hudson River R. R. Co., 12 Barb. (N. Y.) 156. Where no time of payment is s-pecified in terms in the written contract between the 'pai-ties for the construction of a portion of a rail- way, it was held that looking to the con- tract alone the contractor could not call for payment either of the cash or stock portion of the contract, until a complete performance of the contract on his part. Or, upon the most favorable construction, until some distinct portion of the work, for which the contract fixed a specific price, was accomplished. In regard to the stock portion of the payments, a special demand was necessary before the contrac- tor could maintain an action for it. Boody V. Rut. & Bur. R. R. Co., 24 Vt. 660. And where a company, in settlement with a contractor, agreed to pay him a certain amount in stock, or the bonds of the com- pany, at his election, the company retain- ing the same as security -for certain liabil- ities on account of the contractor, and gave the contractor a certificate of such stock, with an agreement indorsed to ex- change it for bonds at his election, and the certificates were then returned to them as their indemnity, — it was held that the company were bound to deliver the bonds, notwithstanding the treasurer had entered the shares in the books of the company as the property of the contractor, and they had in consequence been sold upon execu- tion against him. .Tones v. Portsmouth, &c. R. R. Co. , 32 N. H. 544. A contrac- tor who agrees to take a portion of his pay in the bonds of the company, has no such interest in any question, in regard to their validity, as will prevent a court of equity from enjoining those of a county which had been delivered to the company with- out a proper compliance with the condi- tions of the ■statute under which the sub- scription was made, the contractor having had knowledge of the facts from the first. Mercer County «. Pittsbui'gh, &c. R. E. Co., 27 Penn. St. 389. But where it appeared that the company were accus- tomed to make monthly payments to their contractors, upon the estimates of the engineer, at the end of each month, and that they had so dealt with the plaintiff, it was held that this mu.st be considered, the rule of payment under the contract, established by mutual consent and binding upon the parties. Merrill v. Ithaca, &c. E. E. Co., 16 Wend. (N. Y.) 586. A contract to build " riprap "wall for fifty cents a cubic yard, in the absence of proof of any general usage or uniform custom which could control the mode of measure- ment, was held to imply payment by the cubic yard after the wall was constructed. "Wood V. Vt. Central E. E. Co., 24 Vt. 608. 1150 CONSTEUCTIOK OF BAILROADS. [CHAP. XV. of its par value. It being determined that the plaintiffs were enti- tled to recover a sum less than the whole stipulated price, not upon a strict and literal performance of their contract, but on equitable grounds, it was held that, upon- similar grounds, the amount of their recovery upon that portion of their contract payable in. stock should be limited to the market value of the stock at the time of their demand.^ A provision that the contractor should subscribe for and take an amount of the capital stock of the railroad corporation equal to one-fourth of the amount received for work under the con- tract is construed as an independent covenant, and as not requiiing the contractor to receive payment in stock.^ Where a contract pro- vided that a railway contractor should be paid for his work in monthly instalments, twenty-five per cent being payable in stock, and he was, by the wrongful act of the railway company, prevented from completing his work, it was held that the contract for stock was executory, and that the contractor was entitled to its value, he having no title* to the stock.^ Where it was stipulated that pay- ment should be made for building 9, railroad, partly in money and partly in stock, the payment for extra work may be recovered in money.* Sec. 283. Subcontractors. — Where a person contracts with a railroad company to grade and construct a, division of the road, the company to retain a certain percentage as a security for the com- pletion of the entire work, and the contractor sublets a portion of the division to another, and it is agreed between them that the con- tractor shall retain a certain percentage as a security for the com- pletion of the subcontract, and the subcontractor completes his portion, and it is received, — he may recover the sum agreed upon, including the percentage of the contractor, although the latter may have failed to entitle himself to his percentage as against the rail- road company .5 But a subcontractor cannot pass by his immediate employer, and sue the principal or proprietor of the work.® Where a complaint charged that a railroad company promised to pay for goods which should be furnished to a subcontractor, an answer that the railroad company was not indebted to the subcontractor was 1 Barker v. Troy & Rutland R. R. Co., * Smith v. Boston, Concord, & Mon- 27 Vt. 766 treal R. E. Co., 36 N. H. 458. 2 McMahon v. New York & Erie R. E. » Blair v. Corby, 29 Mo. 480. Co., 20 N. Y. 463. 8 Lake Erie, Waliash, & St. Louis E. R, ' Myers '». New York & Cumberland Co. v. Eckler, 13 Ind. 67. R. R. Co., 2 Curt. (U. S. C. C.) 28. SEC. 283.] SUBCONTEACTOES. 1151 held no defence on demurrer.^ A railroad company is not. liable to one employed by a subcontractor for work done in the construction of its road.2 The company is not liable for the negligence of subcontractors in building its road. Thus, the defendant contracted with F. & Co., for grading its railway. With the consent of the company, F. & Co. sublet the contract for excavating rock to S. Before the contract was made with F. & Co., it was understood that the blasting was to be done with nitroglycerine ; and a magazine for storing the nitro- glycerine was erected on the land of the compauy under the direc- tion of its engineer. S., without the knowledge or consent of the railway company, stored also the nitroglycerine of a third party in the magazine, where it was kept for sale. One of S.'s employes, in taking out some of the nitroglycerine, belonging to the third person, negligently caused it to explode, whereby one C. was killed. It was held that the railway company was not liable for the injury, it not being at fault.* In a Vermont case, the defendant contracted with P. & E. to con- struct certain sections of its railway ; and they sub-contracted with C. to erect certain abutments thereon. A servant of C, in drawing stone for such abutments, left one in the highway, b}' reason of which one P. was injured, and recovered of the plaintiff for the damage sustained by him. In an action by the town to recover of the defendant the damages to which the plaintiff was subjected, it was held that the defendant had no control over the servant of C, and that no privity existed between them and that therefore the defendant was not liable.* But where the injury arises from an act which must have been contemplated, the company is liable. Thus, a railroad corporation made a contract with certain persons that the latter should build a certain portion of the railroad. While the con- tractors were at work upon the road, in pursuance of the contract, some rocks were blasted and a stone was thrown upon the plaintiff, causing him serious injury. It was held that the plaintiff might maintain an action against the corporation to recover damages for the injury he had sustained.* * Chicago, Cincinnati, & Louisville ^ Cuff ». Newark & New York R. R. E. R. Co. V. West, 37 Ind. 211. Co., 35 N. J. L. 17. 2 Indianapolis, &c. R. R. Co. ■». « Pawlet i>. Rutland, &o. R. R. Co., 28 O'Eeily, 38 Ind. 140 ; Marks v. Indian- Vt. 297. apolis, &c. R. R. Co., 38 id. 440. 5 stone v. Cheshire R. K. Co., 19 N. H. 427. 1152 LOCATION AND CONSTEUCTION. [CHAP. XV. Sec. 284. Liability of Company for Acts of Contractors and their Servants. — Where work is let out to be performed by a person upon his own responsibility, and who is not subject to the control of the person with whom the contract is made as to the manner in which the work shall be performed, the employer is not responsible for injuries inflicted by such contractor in performing the work,^ unless the injury is one which might have been anticipated as a probable consequence of the work contracted for if peculiar care is not ob- served and the injury results from the lack of such care ; * or unless 1 Carter v. Berlin Mills Co., 58 N. H. 52 ; "Wright v. Holbrook, 52 N. H. 120 ; Forsyth v. Hooper, 11 Allen Mass.), 419 ; Brackett v. Lnbke, 4 id. 138 ; Bil- liard V. Bichardson, 3 Gray (Mass.), 349; Linton v. Smith, 8 id. 147 ; Lowell v. Boston, &c. K. Co., 23 Pick. (Mass.) 24; Miller V. Minnesota, &o. B. Co., 76 Iowa, 665 ; 38 Am. & Eng. E. Cas. 234 ; Vt. Central E. Co. v. Baxter, 22 Vt. 366 ; Blake v. Ferris, 5 N. Y. 48 ; Young ». " Railroad Co., 30 Barb. (N. Y.) 229; Gaurdier v. Carmack, 2 E. D. S. (N. Y.) 254 ; Slater v. Mersereau, 64 N. Y. 138 ; West V. St. Louis, &c. E. Co., 63 111. 545 ; Camp w. Church Wardens, 7 La. An. 321 ; Cunningham v. Intemat. E. Co., 51 Tex. 503 ; Eaton v. European, &c. E. Co., 59 Me. 520 ; Kansas Cent. E. Co. v. Fitz- simrapns, 18 Kan. 34 ; Painter v. Pitts- burgh, 46 Penn. St. , 213 ; Carman v. Steubenvllle, &o. E. Co., 4 Ohio St. 399 ; Morgan v. Bowman, 22 Mo. 638 ; Hilliard V. Bichardson, 3 Gray (Mass.), 349; Hunt V. Penn. B. Co., 51 Penn. St. 475 ; Schu- lar V. Hudson Eirer E. Co., 38 Barb. (N. Y.) 663 ; Burke v. Norwich, &c. E. Co., 34 Conn. 474 j Weynant v. New York, &c. B. Co., 3 Duer (N. Y.), 360 ; Hughes v. Cincinnati, &o. B. Co., 89 Ohio St. 461 ; 15 Am. & Eng. E. Cas. 100; Hobbit v. London, &c. Ey. Co., 4 Exchq. 256 ; Wood's Law of Master and Servant, 602 et seq. And it is immaterial that the de- fendant lends some of his own men to the contractor, if they are acting substantially as the contractor's servants at the time of the injury. Murray v. Currie, L. E. 6 C. P. 24. But where the defendants, who were occupiers of a bonded warehouse, employed a master-porter for the purpose of removing some baiTels of flour from their warehouse and lowering them into a cart, and the master-porter used his own tackle, and brought and paid his own men, and, through the negligence , of the men or the insufficiency of the tackle, one of the barrels slipped from the tackle whilst it was being lowered into the cart, and fell upon the plaintiff, it was held that the defendants were responsible for the in- jury. Bandleson v. Murray, 8 Ad. & E. 109. Here the work, it has been ob- served, was in effect done by the defen- dants themselves at their own warehouse ; the workmen, though engaged by the master-porter, being under the control of the defendants, and acting substantially as their servants, — Denman, C. J., in Milligan v. Wedge, 12 Ad. & E. 741,— and it is upon this ground alone, it seems, that the above case can be supported. Murphy ». Caralli, 34 Law J. Exch. 14. After the contract has been properly com- pleted, and the works handed over to the commissioners or persons who have em- ployed the contractor, the liability of the contractor ceases, and for any suhsequent injury caused by the natural result of the work the contractor' has completed, the commissionere and not the contractor will be responsible ; as, where the defendant under a contract with the Me- tropolitan Board of Works opened a high- way for the purpose of constructing a sewer thereunder, and, after finishing the sewer, properly filled in and made good the road, which, however, subsequently ^ Ohio Southern B. Co. v. Morey, 47 Ohio St. 207 ; 43 Am. & Eng. E. Cas. 97 (excavation in highway). See also Storra V. Utica, 17 N. Y. 108 ; Bobbins v. Chi- cago, 4 Wall. (U. S.) 657. SEC.'284,] INABILITY OF COMPANY, ETC. 1153 the work is of such, a character as must necessarily result in a nui- sance.^ And the fact that the person for whom the work is done, himself or by an agent, superintends the work, or directs as to what shall be done, provided he does not retain control over the method and means of its accomplishment, does not render the former liable. Thus, where a person, in erecting a building upon a public street, lets out the stone work to be done by a contractor, UTider the direc- tion aTid to tlie satisfaction of a superintendent employed hy him, this reservation is not such aieservation of control over the method and instruments of accomplishing the work as renders him liable for an injury resulting from the negligent execution of the work by the contractor.^ Nor does the circumstance that the employer reserves the right to discharge an incompetent workman,^ or to terminate the siitsidsd, which is the natural result of such opening the road and loosening the materials of which it is composed, and the jjladntiff's horse stumbled into one of the holes ^0 caused and was injured. Hyams V. "Webster, L. K. 2 Q. B. 26i ; i id. 138 ; Bartlett v. Baker, 84 Law J. Exch. 8. Where work which cau lawfully be done without injury to others is placed in the hands of a builder or contractor, who se- lects his own workmen and servants for the performance of the work, and directs the manner of doing it, exercising his Qwn Judgment in the matter, and having the immediate control over the workmen, such contractor, and not the person who cm- ploys him, is the person responsible for in- juries to strangers from 'the negligent execution of the work. Steel v. S. E. Hy. Co., 16 C. B. 550 ; Gray ». PuUen, 5 B. & S. 790, 981. If a person orders Tiis ^wall or his house to be pulled down, he is not responsible for the negligence of the workmen employed by the builders forihe purpose. Butler v. Hunter, 7 H. & N. 826. And if the work is done under the immediate control and superintendence of a suh-contractor, then the* latter is the party responsible for any wrong done by the workmen he employs in the execution of the work. It must not he understood, however, that a contractor cannot-become liable for the negligence of his sub-con- tractor. If the contractor personally in- terferes and gives directions to the latter or to the workmen .employed by him ie would be responsible for the orders given, but he cannot bS charged simply on the ground of his filling the character of con.; tractor. Overton v. Freeman, 11 C. B. 873; 21 Law J. C. P. 52. Blake v. Thirst, ante. Where a builder had con- tracted with the committee of a club to make altei-sitions and improvements in the club-house, and prepare and fix the neces- sary gas-fittings, and the builder made a, sub-contract with a gas-fitter to do this latter portion of the work, and the gas- fitter's workmen allowed the gas to escape and cause an explosion, the gas-fitter and not the builder was held liable for the in- jury. Eapson b. Cubitt, 9 M. & W. 710. 1 Clark V. Fry, 8 Ohio St. 358 ; Car- man V. Steubenville, ,&o. R. K. Co., i id. 399; Dygerti;. Schenok, 23 Wend. (N. Y.) 446 ; Callahan v. Burlington, &e. K. R. Co., 23 Iowa, 662 ; Gilbert v. Halpin, 3 Ir. Jur. (N. B.) 306. 2 Chambers v. Ohio Life Ins. & Trust Co., 1 Dis. (Ohio) 327 ; Forsyth v. Hooper, 11 Allen (Mass.), 419; Hunt v. Penn. R. R. Co., 51 Penn. St. 475. But see Carman v. Steubenville, &c. R. E. Co., 4 Ohio St. 399 ; Lerandat v. Saisse, L. R. 1 C. p. 152 ; New Orleans, &c. E. R. do. V. Banning, 15 "Wall. {U.S.) ,649 ; Lake Superior Iron Co. v. Erickson, 89 Mich. 492. 2 Hobbitt V. London, &c. Ry. Co., 4 Exchq. 254 ; Cuff v. Newark, &c. R. R. Co., 35 N. J. L. 17. 1154 O0N8TEU0TION OF EAILROADS, [OHAP. XV. contract if not satisfactorily performed,^ render the employer liable for the contractor's acts, nor the circumstance that he is by the contract authorized to withhold payments on account of such acts,^ If, how-' ever, the employer reserves control or supervision over the mode and instrumentalities for doing the work, — as, if it is to be done accord- ing to the direction of a person named, or according to the direction of the employer himself,* -r- or if he, in any manner, reserves such control over the work, by himself or his agents, as gives him au- thority to direct how the work shall be done, during its progress, so that the contractor and his workmen can be said to stand in the relation of servants to him, he is liable for their negligence.* In a late case before the Supreme Court of Maine,^ the defendant com- pany employed a contractor to construct, under the general super- vision of the chief engineer of the company, a portion of its road ; and the subcontractors and their employes committed various tres- passes and injuries on the lands of the plaintiff. It was held that the company not having directed the acts complained of, nor having any control over the persons who committed them, and the injuries not being the natural result of the work contractejd to be done, the plaintiff could not recover of the company, — notwithstanding the statute provided that the company should be liable " fo? trespasses and injuries to lands and buildings adjoining or in the vicinity of its road, committed by a person in its employ or occasioned by its order." The statutory provision does not embrace the acts of contractors. The fact that the employer reserves the right to change the plan of doing the work* ; or to discharge any of the contractor's men ' ; or stipulates that the work shall be done to his satisfaction, or to that of an agent employed by him,^ — does not affect the question. ' Wray v. Evans, 80 Penn. St. 102 ; te regarded as good law either in Massa- Scliular V. Hudson Eiver B. R. Co., 88 chusetts or elsewhere. Water Co. v. Barb. (S. Y.) 653. Ware, 16 Wall. (U. S.) 566 j Schwartz v. 2 Tibbett v. Knox, &c. B. B. Co., 62 Gilmore, 45 111. 455. Me. 437. * Allen D.Hayward, 7(3. B. 960; St. Paul ' Lowell V. Boston & Lowell E. B. Co., v. Seitz, 8 Minn. 297; Cincinnati v. Stone, 23 Pick. (Mass.) 24. It is proper to say 5 Ohio St. 88; Pack w. Mayor, 8 N.Y. 222; that the general doctrine of this case, to Painter v. Pittsburgh, 46 Penn. St. 218. the extent that an employer is equally lia- ' Eaton v. European, &c, B. Co., 59 ble whether the acts were done by a con- Me. 520 ; 8 Am. Rep. 480. tractor or his own servants, predicated * Pack v. Mayor, 8 N. Y. 222. upon the doctrine of Bush v. Steinman, 1 ' Eeedie ti. Ry. Co., 4 Exch. 244. B. & P. 404, has, like the doctrine of the » Allen v. Willard, 57 Penn. St. 374 ; case upon which it is predicated, ceased to Kelly v. Mayor, UN. Y. 482. SEC. 284. j LIABILITY OP COMPANY, ETC. 1155 A partial reservation of authority or control in certain respects does not transform the contractor into a mere servant. If, in fact, the con- tract places the contractor in an independent relation, and he re- seivea general control over the work, as to the manner and method of its execution, the fact that the employer reserves the right to prescribe what shall be done, but not how it shall be done, or who shall do it, does not divest him of the character of a contractor.^ The simple test is, who has the general control over the work P — who has the right- to direct what shall be done, and how to do it? And if the person employed reserves this power to himself, his relation to the employer is independent, and he is a contractor; but if it is reserved to the employer or his agents, the relation is that of master and servant.^ The contract being to do a certain piece of work, the mode of payment does not affect the relation. 1 Allen V. WillRi-d, 57 Penn. St. 374; Hunt V. Penn. E. Co., 51 Penn. St. 475 ; Kelly V. M.ayor, UN. Y. 432; Pack v. Mayor, 8 N. Y. 222 ; ScEwartz ». Gilmore, 45 III. 455, may seem opposed to this doc- trine, but it is not so in fact. In that case the defendant not only reserved the right to change the plans, but also reserved to his v architect general control over the work, and by the terms of the contract he was declared superintendent thereof. Thus the reservation of control went to all the de- tails of the work, and the court held that the contractor and his servants must be regarded as servants of the defendant. 2 In Blake v. Thirst, 2 H. & C. 20, the defendant, a l^uilder, contracted in writing with land commissioners to make a sewer. He verbally underlet to N. the excavation and brick work at a fixed price per yard, including .fencing, lighting and watching, the defendant supplying the bricks in his own carts, and removing the surplus clay. N. employed his own men, but the defendant's name as contractor was over the door, and he testified that ii the work had not been done to suit him he should have dismissed N. In conse- quence of N.'s neglect to provide a suffi- cient light, the plaintiff fell into an unfenced trench and was injured. After the injury N» put up a fence and a light. The defendant was held liable, — Bbam- WELL, B., remarking: "The question is whether the defendant had the right to control the thing done here ? I think he had. Suppose the defendant had entered into two contracts for sub-letting ; one to dig the hole and the other to light and watch, — he would surely be liable. It does not make any difference that the whole, was provided for under one con- tract." ' Brackett v. Lubke, 4 Allen (Mass.), 419; Kelly v. Mayor, 11 N. Y. 432; Sadler v. Henlook, i El. & Bl. 570 ; For- syth V. Hooper, 11 Allen (Mass.), 419 ; Schwartz v, Gjlmore, 45 111. 455. In Kelly V. Mayor, 11 N. Y. 432, the defendant entered into a contract with one John Quin to grade Seventy-first street, New York. By the terms of the contract " the whole work was to be done under the direction and to the entire satisfaction of the commissioners of re- pairs and supplies, the superintendent of roads, and the surveyor having charge .of the work." It was held that this reserva- tion did not change the status of the par- ties from that of contractor and contractee to that of master and servant. " The ob- ject of the clause relied upon," said Sel- DEN, J., " was not to give the commissioner of repairs and the officers named the right to interfere with the workmen, and direct them in detail how they should proceed, but to enable them to see that every part of the work was satisfactorily completeql. It authorized them to prescribe what was to be done, but not how it was to be doae, 1156 CONSTBUCTION OP EAILEOADS [CHAP. XV. When the work is, of itself, in any of its details, unlawful, or necessarily results in the creation of a nuisance, the employer having the power to abate it, and it being his duty to do so, he is liable if an injury results from a nuisance created by the contractor.^ So, too, he is liable if he retains control over the method and means of doing the Work. Thus, where the defendant city let a contract for re-paving its streets, but reserved entire control over the manner of doing the work, it was held that the relation of master and servant existed, and that the defendant was liable for injuries resulting from the negligent or improper execution of the work ; ^ and the same is also the rule if he interferes and directs how the work shall be .done, and injury results to others while his orders are being exeouted.* " When," says Appleton, J.,* "the contract is to do an act in itself lawful, it is presumed it is to be done in a lawful manner. Unless, therefore, the relation of master and servant exists, the party contracting is not responsible for the negligent or tortious acts of the person with whom the contract is made, especially if those acts are out- side of the contract. If the injury was the natural result of work contracted to be done, and it could not be accomplished with- out causing the injury, the person contracting for doing it would be held responsible." If the company can be said to have co-oper- ated in the act which produces the injury, it is liable ; and this is always the case when the act must necessarily be productive of a nuisance.^ In all cases it will be presumed that the act was nor who .should do it." In Pack v. Mayor, i Clark v. Fry, 8 Ohio St. 368 ; Car- 8 N. Y. 222, the defendant city of New man v. Steubenville, &c. E. Co., 4 Ohio York employed a person to grade a street St. 399 ; Dygert v. Schenck, 23 Wend, for it. The contract provided that the (N. Y.) 446; Vaiiderpool w. Husson, 28 contractor should conform the work to Barb. (N. Y.) 196; Matheny v. Wolffs, 2 such further directions as the corporation Duv. (Ky. ) 137 ; Wood's Master and Ser- or its officers might gire from time to vant, 606. time. The plaintiff sustained injuries '■' Cincinnati v. Stone, 6 Ohio St. 88. ft-om Jihe negligence of the contractor's » Heffernan v. Benkard, 1 Robt. (N. Y. ) workmen. The court held that the re- 432. servation of this authority by the city was * Eaton v. European, &c. E. Co., 59 not such a reservation of control over the Me. 620 ; 8 Am. Eep. 430. manner of performing the work as ren- ' Houston, &a. R. R. Co. v. Meador, 60 dered the contractor and his workmen Tex. 77 ; Robinson v. Webb, 81 Bush servants of the corporation ; that an (Ky.), 464 ; Ellis v. Sheffield Gas Co., 2 authority reserved by the contractee as to. El. & Bl. 767 ; Peachey v. Rowland, 18 the results of the work to be done, the C. B. 867 ; Habbit v. London, &c. ■ Ry. contractor still reserving control over the Co., 4 Exohq. 454 ; King v. N. Y. Cen- method of doing it, does not change the re- tral U. R. Co., 66 N. Y. 181 ; Cougreve v. lation from that of contractee to master. Morgan, 5 Duer (N. Y.), 495. SEC. 284.] LIABILITY OF COMPANY, ETC. 1157 to be done in a lawful manner, and with proper care and skill.^ 1 in Reedie v. London, &c. Ry. Co., 4 Exch. 244, the defendant let to a contractor thfi work of building a bridge over a high- way, and by the carelessness of the con- tractor's servants a b^ick was dropped from the work, and falling npon the plaintiff's husband, who was lawfolly passing along tlie highway, killed him, and the court held that the defendants were not Liable, even though they reserved the right to dis- miss any of the contractor's workmen for incompetence. In that case it must have' been well understood by thp parties that, unless the work was carefully executed, in- jury might result to persons passing along the highway, yet the court held tjiat the oontractee was not liable. In Butler v. Hunter, 7 H. & N. 826, the defendant employed an architect to repair his house. It became necessary to take down and re- build the front of the house, and the work was let to a builder. The plaintiff was the owner of the adjoinieg premises, between which and the deffendant'a house there was a party-wall, fourteen inches thick, and in front of the defendant's house what is called a brest summer, one end of which was inserted into the party-wall about six inches. In removing the front of the, de- fendant's house the contractor's workmen removed the brest sumifler, and not hav- ing shored up the plaintiff's house, the front wall of the house fell, and he sus- tained considerable damage. It appeared that the work might have been done with safety if the wall had been shored up, which was the ordinary find usual precau- tion adopted in such cases, and the court held that the defendant could not be held chargeable. " I think," said Pollock, C. B., " that, as a matter of fact, if a person gives an order to a tradesman to do some work, he means him to do< it in the ordinary and tradesraanlike way ; " and the employer has a right to presume that he will do it in that way ; and if he is gnilty of no negligence in the selection of a contractor, he cannot be held chargeable because he did not personally see to it that the work was so done. In this case the position was taken and ably urged by the plaintiffs counsel that inasmuch as iujury might result from a careless execution of the work, the defendant was personally bound to see to it that such precautions were taken as to prevent it ; but the court re- pudiated the doctrine, and held expressly that this duty was only imposed when the injury was consequent upon doing the work in the ordinary mode ; and such is the uni- form rule adopted by the courts both of this country and; England. Ellis v. Shef- field Gas Co., 2 E. & B. 767 ; Knight v. FoH, 5 Exch. 721. In Hole v. Sitting- bourne, &o. Ry. Co., 6 H. & N. 488, the defendant was authorized to construct a drawbridgp across a. navigable stream. The act of Parliament authorizing, the constructi'on of the bridge provided that it should not be lawful to detain any ves- sel navigating the river for' a longer tiraa than was sufficient to enable any carriages, animals or passengers, ready to traverse, to. cross the. bridge, and for opening it to admit such vessel. The deffendants em- ployed a contractor to, construct the bridge, and ■ by some defect in the con- struction of the draw the bridge could not be opened, and the plaintiff's vessel was thereby prevented from navigating the river, and the court held that the defend- ants were liable. In this case the power to do the act was derived from legidative authority, and the right was oircumsciibed with certain special restrictions which the defendants were absolutely bound to con- form to, or the work became a public nuisance. The court very properly held that the defendants were bound absolutely to comply with the terms of the act- con- ferring authority upon them to construct the bridge, and that they could not shirk responsibility for a failure in that respect by contrajctii^ with another to do the work for them. The duty upon them was absolute, and they were bound at their peril to conform to it. Pollock, C. B., said: "Where a person is authorized by act of Parliament or bound by contract to do particular work, he cannot avoid re- sponsibility by contracting with another person to do that work. In Ellis v. Shef- field Gas Co., ante, Lord Campbell said : 'It is a pioposition atbsolutely untenable that in no case can a man be responsible 1158 CONSTEUCTION OF RAILROADS. [CHAP, XV. For acts negligently or unskilfully done, it cannot be held charge- able.i for the act of a person with whom he has made a contract. / am clearly of the opin- ion that, if the contractor does the thing which he is employed to do, the employer, is responsible for that thing, as if he did it himself.' Here, the contractor was em- ployed to make a bridge, and he did make a bridge which obstructed navigation. . . . When the act complained of is purely collateral and arises incidentally in the course of the performance of the work, the employer is not liable, iecaine he never authorized that act ; the remedy is against the person who did it. . . . But when the contractor to do a particular act the doing of which produces misehdef, another doctrine applies. Here the legislature empowered the company to build the bridge ; in building that bridge the con- tractor created an obstruction to the navi- gation, and for that the company are liable. I suggested in the course of the argument that where a man employs a contractor to build a house, who builds it so as to darken another person's windows, the remedy is not against the builder, but against the owner of the house. It may- be that the same principle applies to cases where a man is employed by another to do an act which it is the' duty of the latter to do. In such cases it is the duty of the owner of the soil to inquire what is in the course of being done — to know what is the plan — to see that the materials are good, and to take care that no mischief ensues. [See Butler v. Hunter, ante, de- cided a year later, in which the same learned judge laid down the doctrine that the contractor having committed the work to a tradesman is not bound to inquire how he intends to do or is in fact doing the work. But it will be noticed that in the case suggested, supra, the work would necessarily result in a nuisance if the duty obligatory upon the contractor was not observed.] So here, it was the duty of the company to see how the contractor was about to construct the bridge. They ought to have taken care to ascertain what he was about to do, what materials he would use, and to have seen thai (he speci- fication and materials were such as would insure the construction of a proper and effi- cient bridge. But I do not rest my judg- ment on that ground, but simply on this, that there is a distinction between mischief that is collateral and that which directly re- sults from the act which the contractor agreed and was wuthorixed to do,'' Steel «. South-Eastern By. Co., 16 C. B. 553; Allen V. Hayward, 7 Q. B. 960. 1 Clark D. Vt., &c. R. E. Co., 28 Vt. 103; Eaton v. European, &c. B. R. Co., 59 Me. 420 ; MoCaff'erty v. Spuyten Duy- vil, &c. R. R. Co., 61 N. Y. 178; Central, &c. R. K. Co. V. Grant, 46 Ga. 417; Meyer V. Midland Pacific E. E. Co., 2 Neb. 819 ; Union Pacific E. K. Co. c Hanse, 1 Wyo. 27 ; Robbins v. Chicago, 2 Black (U. S.), 418; St. Paul Water Co. •». Ware, 16 Wall. (U. S.) 566. In Peachey v. Rowlands, 13 C. B. 187, the defendants contracted with certain persons to build a drain in a high- way, and the contractors employed C. to iill in the earth over the brick work and to carry away the surplus. > C left the earth so much raised above the level of the road that the plaintiff, driving by in the dark, was thereby upset and injured. It was held, that the defendants were not respon- sible for the negligence of C. Jhe defend- ant employed somebody to do what' might be done in a proper and safe manner. It was done negligently and improperly, and the plaintiff was injured, but it was not thus done by the defendants, nor at their instance, and they were not held responsi- ble. In Overton v. Freeman, 11 C. B. 833, A. contracted with parish officers to pave a certain district, and entered into a sub-contract with B., under which the lat- ter was to do the paving of the street, the materials being supplied by A. and brought to the spot in carts. Preparatory to pav- ing, the stones were laid by laborers, in the employ of B., on the pathway, and there left unguarded during the night, so as to obstiTict the same. The plaintiff fell over them and was injured. It was held that B. was responsible for the negligence, and not A. " I think," saya Maule, J., "the present cftse falls within the princi- ple of those authorities which have decided that the subcontractor, and not the per- SBC. 285.] WHAT BBSEEVATION OF CONTROL, ETC. 1159 SeO. 285. What Reservation of Control over the Work Renders the Contractee Liable. — Where a person contracts to do an entire son with whom he contracts, is liable civ- illy, as well as criminally, for any wrong done by himself or his servants in the exe- cution of the work contracted for." In an Iowa case, — Callahan v. Burlington, &c.,, E. E. Co., 23 Iowa, 562, —the plaintiff brought an action to recover compensation for injuries to his timber from a fire negli- gently set by the employe of a subcon- tractor with the defendant, for the purpose of clearing the way of logs, trees, brush, and rubbish. The contract provided that the way should be cleared of all trees, etc., by removal or burning, as the engineer sJunild direct, before the grading should be commenced. The engineer ordered the burning, which, by the negligence of the per- son who set the fire, escaped on the plain- tiff's lai^d and did the damage complained of. It was held that the company was ' not liable, Beck, J., announcing the rule applicable to such cases thus : "If the person sought to be charged under the rule as employer did not contract with the party doing the wrongful act, for hig labor or ser- vices, and is not directly liable to him for compensation for such labor or services, and has no such control over him as will enable the employe to direct the manner of performing the labor or services, he is not liable for the wrongful act of the agent or servant. In order to create the liabEity, it is especially necessary that the Control of the employ^ over the servant should be of such a character as to enable him to direct the manner of performing the ser- vices, and to prescribe what particular acts shall be done in order to accomplish the acts intended.'" In an Irish case, — Gilbert V. Halpin, 3 Ir. Jur. (n. s. )'300, — the plain- tiff brought an action against the defend- ant as secretary of the Commissioners to improve the harbor of Wieklow, for the loss of his vessel by reason of the negli- gence of the commissioners, who caused certain piles to be driven, and neglected to place, or cause to be placed, any light, or to use, any other reasonable precaution to guard vessels from being driven thereon. The defendants pleaded, among oiher pleas, that they committed the exeoution of the work to their contractor, John Killien, and that at the time, etc., the said piles were still in the posses.sion and under the control of the said Killien. Green, B.,in delivering his opinion, says; "I think the case falls within the rule that the contractor, and not the employe, ought to be liable." " There is a plain difference," remarks Richards, B., "be- tween the case of master and servant and that of employ^ and contractor. The employ^ was authorized to perform the work, and he authorized the contractor. No man would drive down piles in a nav- igable river without being authorized. Therefore, I think it was the contractor's duty to have apprised his employer that this work had come to such a stage that it was necessary to get lights to prevent accidents. It was not to be expected that the commissioners would be on the ground on all occasions to see what might be re- quired to guard against danger. The con- tractor faUed in performing his duty, and I think he ought to be liable." "The question," says Pennefathee, B., "is, who is liable. If the contractor, the com- missioners are not liable, for it is clear, from all the eases, that if .the contractor is liable the employe is not. It appears to me, that if it was the duty of the contrac- tor to put these lights, his employes were not bound." "The principle of law is clear," remarks Pigot, C. B., " that when a person is engaged by contract to do a certain work, the contractor and not the employ^ ia liable for this." Where the defendant corporation directed a street to be graded, and contracted with a person to do the grading, it was held that they were not liable for the negligence of the contractor or his servants. Kelly u Mayor, etc., of New York, 11 N. Y. 432. So, where a railroad company contracted with a person to build its road-bed, the com- pany was held not liable for torts commit- ted by the contractor or his servants. Clark V. "Vt. & Canada E. E. Co., 28 Vt. 103 ; Pawlet v. E. & W. E. E. Co., 28 id. 297. Bennett, J., in the last case cited, said : "Though it may be assumed in the case before us that a public nuisance has been committed by the servants of the 1160 C01T8TRIJCTION OF RAILROADS. [CHAP. XV. piece of-work, without being subject to the employer's control, at so much a day, week, or month, the method of compensation does not affect his status. He is a contractor precisely as much as though he subcontractor, and a particular injury has resulted therefrom to Phelps, and for Which, the town of Pawlet has been compelled to make compensation, yet we cannot dis- cover any privity existing between the defendants and the employes, of the sub- contractor. The contract made for build- ing' of the abutments to the bridge was for a lawful purpose, and in no way involved, the commission of a wrong, and the em- ployers of the subcontractor were not the servants of the defendants nor under their control." The rule may be said to be firmly established, that when the owner of land undertakes to do a work which, in the ordinary mode of doing it, is a nuisance, he is liable for any injuries which may re- sult from it to third persons, though the work is done by the contractor exercising an independent employment and employ- ing his own servants. But when the work is not in itself a nuisance, and the injury results from the negligence of such con- tractor or his servants in the execution of it, the contractor alone is liable, unless the owner is in default in employing an im- proper and unskilful person as the con- tractor. Cuff V. Newa,rk, &c. E. K. Co., 35 N. J. 17. Where an action cannot be maintained against a party unless ther4 has been personal negligence on his part, it is not enough to show that be has ordered work to be done, not necessarily amount- ing to any nuisance, nor causing any in- jury, but in the course of which an injury is accidentally inflicted, although it ap- pears that he did not give any special direction to adopt a particular precaution which might have prevented it ; for it must be taken that he gave general direc- tions to do the work in a proper manner, and to adopt all proper precautions ; and the neglect of any suet precaution, even assuming it to be negligence which might, under ordinary circumstances, render the employer legally liable, is not his personal negligence, so that he would not be liable in an action for an injury sustained in such a case by one of his own workmen, or in a ease in which a statutable defence was raised on the ground that there was no negligence on the part of the defendant,, otherwise than by his servants or work- men. Sootti). Mayor, etc., of Manchester, 38 Eng. Law & Eq. 477. The rule is, that in order to constitute the relation of mas- ter and servant, the person employed must be subject to the orders and control of the employer. He must be acting strictly in the place of the employer, and represent- ing the employer's will and not his own,, and the business must be strictly that of the employer and not his own, or the em- ployer cannot be held chargeable for the consequences of his acts. Thus, where the plaintiff had contracted with a town to Widen a highway, by removing the rocks from a ledge therein, for a specific sum of money, and the stone taken out, and after- ward contracted with the defendant to build a dam for him, for which he was to receive a certain price per>day, while at work upon the dam and blasting the rocks, — the defendant furnishing the powder for blasting, and superintending the building of the dam, but having no control of the blasting, — and in blasting, a rock was thrown upon the house of S., causing an injury for which C. -^as compelled to pay, it was held that the relation of master and servant did not exist between them, and that the defendant was not bound to in- demnify him against the damage he had been compelled to pay. The relation was held an independent one on the part of the plaintiff, and the fact that he was paid by the day, and that the defendant superin- tended the work x>i buUding the dam, was held not sufficient to divest him of the character of a contractor, Corbin v. Amer- ican Mill j Co. , 27 Conn. 274. Iftheowner of a vessel employs a steam tug to tow the vessel, and during the service the tug runs into another vessel, the owner of the ves- sel being towed is not responsible for the injury, unless, at the time, the crew of the tug were under the control and subject to the orders of the master of the vessel. Sproul V. Hemmingway, 14 Pick. (Mass.) Ij Wood's Master and Servant, 607-610. SEt!. 286.J WHERE THE CONTEAOTBE OWES A DUTY, ETC. 1161 was paid aa entire sum for doing the work.^ While a reservation of control over the work' in some respects by the contractee, does not render him liable as master generally, yet it would seem that if the injury arises in respect of the particular matter over which he re- served control, he exercising the power reserved, he would in that case be held chargeable as master.^ Sec. 28@. where the Contractee Owes a Duty to the Public or individuEilB. — So, where the employer owes certain duties to third persons, or the public, in the execution of a work, he cannot relieve himself from liability, to the extent of that duty, by committing the work to a contractor. Thus, in one case,^ the city of St. Paul, desir- ing to have water-pipes laid in its streets, passed an ordinance authorizing the St. Paul Water Company to lay them ; and as it was necessary that large excavations should be made along the streets, and considerable blasting of rock below the streets, the city incorpo- rated in the ordinance authorizing the laying of the pipes a provi- sion that the Water Company should " protect all -persons against damages by reason of excavations made by them in laying' pipes, and keep the excavations properly guarded by day and night, and become responsible for all damages which may accrue by reason of the neglect of their employes in the premises, and that the streets and highways should not be unnecessarily encumbered or obstructed in laying said pipes." The Water Company accepted the ordinance, and let out the work by contract to one GilfiUan. While the work was being prosecuted by GilfiUan and his servants in one of the streets, the plaintiif, driving his horse and wagon in it, was seriously injuredj owing to his horse taking fright at a steam drill in the street, .which was put there to drill the rocks that it was necessary to remove, and was suddenly and without notice set in motion as the plaintiff approached it with his team. The evidence disclosed that the accident resulted because the excavations were not prop- erly guarded, and that the highways were unnecessarily obstructed 1 Corbin v. American Mills, 27 Conn. v. Newark, &o. E. R. Co., 35 N. J. L. 17; 274. Veazie v. Penobscot R. R. Co., 49 Me. 119; 2 Allen «. Hayward, 7 Q. B. 975, 976. McCafferty v. Spuyten Duyvil, &o. R. R. « Water Co. »". Ware, 16 Wall. (U. S.) Co., 61 N. Y. 178 ; McWilliams v. Detroit 566 ; Houston, &o. R. R. Co. v. Meador, Central Mills Co., 31 Mich. 274 ; Clement 50 Tex. 77 ; Brackett v. Lubke, 4 Allen v. Canfield, 28 Vt. 302 ; Gardnerw. Smith, (Mass.), 178; Pickard v. Smith, 10 C. B. 7 Mich. 410 ; Bay City, &c. B. R. Co. ». N. 8. 470 ; Stows I). TJtioa, ante ; Chicago, Austin, 21 id; 390 ; Clement ». Canfield, &c. E. R. Co. V. Whipple, 22 111. 105 ; Cairo, 28 Vt. 302. &o. R. R. Co. V. Worsley, 85 111. 370 ; Cufif Vol. II. — 23 1162 LOCATION AND CONSTRUCTION. [CHAP. XV. and encumbered, upon which the plaintiff recovered a verdict. The defendants claimed exemption from liability because the injury resulted from the negligence of the contractor's employes, and not from any negligent act of the defendants themselves, and that the ordinance was simply intended as an indemnity to the city, and did not enable a third person to avail himself of its provisions ; but, upon appeal, the judgment was affirmed, — Davis, J., upon this point, remarking : " The defendant agreed with the municipal author- ities to protect all persons against damages by reason of the excava- tions made by them preparatory to laying the pipes, and to keep the work properly guarded by day and night, and to be responsible for all damages which may occur by reason of neglect of their employes in the premises. Such an agreement would not acquit the muni- cipality of an obligation, otherwise attaching, to keep the streets safe and convenient for travellers ; but it may well be held that a party injured through a defect or want of repair in such a street, occasioned by the negligence or carelessness of such a contractor in doing the work, or those for whose acts he is responsible, may, at his election, sue the contractor for redress or pursue his remedy against the municipality, as it is clear that the contractor, in case of a recov- ery against the latter, would be answerable to the municipality as stipulated in his agreement." The rule is, that a person or corpora- tion charged with a duty, either by contract or statute, cannot divest himself of it by shifting it upon another,^ or change the responsibil- ity for its wrongful performance. The duty is wholly independent of the means by which the result is accomplished. " Sec. 287. Specific Performance of Contract for Construction. — In pursuance of the principle that specific performance of a contract cannot be decreed where the contract by its terms calls for a succes- > Houston, &o. B. Oo. v. Meador, 50 the road and conveying freight and pas- Tex. 77 ; Braokett u. Lubke, 4 Allen sengers, receiving reward therefor, it is (Mass.), KSjCuiTD. Newark, &o. R. error to instruct that the company is liable Co., 85 N, J. L. 17. for his negligence, where there is no evi- 2 Cuff V. Newark, &o. R. Co., 85 N. denoe that the company had made to him J. L. 17. When a construction train a surrender of its road-bed or that the furnished and operated by the company's contractor was operating the road under employes is entirely controlled by the con- a contract which the company had no tractor, the company cannot be held liable authority to make. Rome, &o. R. Co. v. for injuries resulting from the negligence Chasteen, 88 Ala. 691 ; 40 Am. & Eng. R. of the engineer. Miller u. Minnesota, &c. Cas. 559. See as to who are indepen- R. Co., 76 Iowa, 665; 38 .Am. EngB. dent contractors, Rogers v. Florence R. Cas. 284. So where a contractor, for the Co., 81 8. Car. 878 ; 89 Am. Eng. R. construction of the road, was operating Cas. 384 SEC. 287 a.] RAILROADS CROSSING BACH OTHER. 1163 sion of acts, whose performance must require constant and protracted attention and supervision, a court of equity cannot compel the spe- cific performance of a contract to build a railroad either at the suit of the contractor or of the company ; ^ but when equity requires^ it, it will appoint a receiver to take possession of the roadway and materials for the purpose of completing the line, and will invest the receiver with the requisite title and right to the roadway and materials, so as to raise the necessary means to complete the work.^ Sec. 287 a. Railroads crossing Each Other. — It has been seen that the-,right of way of a railroad like all other property is subject to the State's right of eminent domain, and therefore part of it may be condemned in order to allow another railroad to cross it.^ But in view of the great danger incident to travel where railroads cross each other at grade, such crossings are always discouraged, and in some jurisdictions absolutely prohibited. Thus, in a Pennsylvania case, in dealing with a statute concerning railroad crossings, Meecer, J., observed : " The evident intendqient of the .statute is to discourage crossings at grade. This is a question in which the company, whose road~ is to be crossed, is not the only party liable to injury thereby. It involves the safety and security of the public. Crossings at grade are always attended with danger. As our population becomes more dense, travel and traffic will increase, ajid the injuries resulting from grade crossings will be multiplied. Each succeeding year will in- 1 Ross V. Union Pacific R. Co., 1 v. Wivenhoe, .&o. R. Co., 4 De Gex J. & "Woolw. (U. S.), 26 ; Danforth o.,Phila- S. 723 ; Peto v. Brighton, &c. R. Co., 1 delphia, &e. R. Co., 30 N. J. Eq. 12 ; H. & M. 468 ; Heathoote v. N. Stafford-^ Fallon V. Railroad Co., 1 Dill. (U. S.) shire R. Co., 20 L. T.i N. s. oha^. 22;" 121 ; South Wales o. Wythes, 1 K. & J. Waring v. Manchester, &c. R. Co., 7 Hare, 186 ; Ranger B. Great Western R. Co., 492 ; Ross ». Union Pac. R. Co. , 1 Woolw. 1 Eng. Ry. Gas. 51 ; 1 Story's Eq. (10th (U. S.) 26. ed.), 778 »i; ante, § 210. "I have every = Kennedy v. St. Paul, &c. R. Co., 2 possible inducement to afford the plaintiffs Dill. (U. S.), 448. In this case the com- as large a measure of relief as I can give pletion of the construction was necessary them eonsistentlywith the established prin- in order to prevent the laps^ of a valuable ciple of this court, but I feel the difficul- land grant. ties to be quite insuperable." Wood, V. ' See ante, § 237; Korthern E. Co. v. C, in Peto v. Brighton, &c. R. Co., 1 H. Concord, &c. R. Co., 27 N. H. 183 ; Fitch- & M. 468 ; note in 22 Am. & Eng. R. Cas. burgh R. Co. v. New Haven, &c. R. Co., 272. See also 42 Am. & Eng. R. Cas. 134 Mass. 547 ; East St. Louis, &c. E. Co. 607. Since equity will never, enforce spe- o. East St. Louis R. Co., 108 111. 265 ; 17 cifio performance against one party unless Ara. & Eng. R. Cas. 163 ; Western Penn. it can also enforce it against the other R. Co.'s Appeal, 99 Penn. St. 155 ; Cen- party as well, it will not enforce the con- tral Vt. R; Co. v. Woodstock E. Co., 50 tract of construction against a railroad Yt. 452 ; Lake Shore, &c. R. Co. v. Cin- company in favor of the contractor. Munro cinnati, &c. R. Co., 30 Ohio St. 604. 1164 LOCATION AND CONSTRUCTION. [OHAP. XV. crease the necessity for avoiding them. Their construction should now and henceforth be discouraged ; " ^ and equity will enjoin a cross- ing at grade where it is practicable to avoid such a crossing.'' One company has no absolute right to condemn a right of way across the road of another; it must always be made to appear that the crossing is necessary, and the courts have authority to review the determination of the company's engineers' as to the necessity of the crossing at all, and as to the. e.xpediency of crossing at any particular point.^ As a general rule the courts will not inter- fere by injunction to restrain a railroad company from condemning a right of way across tracks of another company. There is no want of constitutional power in the legislature to provide for such con- demnation ; the public use contemplated is not the same use, and, 1 Pittsburgh, &o. E. Co. v. Southwest Peiin. R. Co. , 77 Penn. St, 173. See also Pennsylvania R. Co.'s Appeal, 116 Penn. St. 84. 2 Missouri, &a. R. Co. v. Texas, &o. R. Co., i Wdod (U. S.), 360 ; 10 Fed. .Rep. 297 ; 6 Am. & Eng. R. Cas. 597 ; Toledo, &o. R. Co. V. Detroit, &o. R. Co., 68 Mich. 645 ; 28 Am. & Ejig. It. Cas. 280 j Pitts- burgh Junction R. Co.'s Appeal (Penn.), 6 All. Rep. 564 ; 28 Anj. & Eng. R. Cas. 266 ; Baltimore, &o. R. Co.'s Appeal .(Penn.), 10 W. N. Cas. 630; 3 Am. & Eng. R. Cas. 42 ; Hnmestqn, &c. R. Co. II. Chicago, &c. R. Co., 74 Iowa, 554 ; 35 Am. & Eng. R. Cas. 263 ; Central Vt. R. Co. V. Woodstock R. Co., 60 Vt. 452. ' Pittsburgh, &o. R. Co. v. Southwest Penn. R. Co., 77 Penn. St. 173 ; In re St. Paul, &c. R. Co., 87 Minn. 164. See also State v. Hennepin County Court, 85 Minn. 761 ; Northern Central R. Co.'s Appeal, 103 Penn. St. 621. Under the California Statute (Code, § 1244) provid- ing for the condemnation of a right of way across the track of a railroad, the proceedings to acquire a right of way over the first company's easement in the land and over the original owner's fee may be joined. California Southern R. Co. v. Southern Pac. R. Co., 67 Cal. 69. The Nebraska Statute concerning the crossing of railroads is held to extend to foreign as well as domestic corporations. Union Pac. R. Co. V. Burlington, &c. R. Co., 1 Mo- Crary (U. S. ), 463. Compare Constitution of Mississippi (1890), § 197. Under the New York Statute (and under others, see ante, § 208), it is required that in a pro- ceeding to condemn, the inability of the two companies to agree must appear. The commissioners provided by the statute are to determine tlie necessity of the crossing, the manner in which it is to be done, the exact locality, and in general should ar- range all such details as would ordinarily be provided for by the contract between the companies had they been able to agree. They are also to determine the duties of the companies with regard to the operation of trains over the crossings — whether a flagman shall be employed, whether trains shall be required to conio to a full stop before crossing, etc. See Matter of Lookport, &o. R. Co., 19 Hun (N. y.), 88 J 77 N. y. 557 ; Matter of Boston, &o. R. Co., 79 N. V. 69. See also Matter of New York, &c. R. Co., 44 Hun (N. Y.), 215, afflrmed 110 N. Y. 874 ; 36 Am. & Eng. R. Cas. 676 n. ; 19 Am. & Eng. Ency. Law, p. 868. The Constitution of Texas, Art. X., § 1, provides that "every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad." It is held that such a provision is not self-enacting but re- quires appropriate supplemental legisla- tion prescribing the regulation of its ex- ercise. The exercise of the right may, therefore, be enjoined until by negotiation or proper statutory provision it can be established with proper limitations. Mis- sonii, &c. R. Co. v. Texas, &c. R. Co., 10 Fed. Rep. 497. SBC. 287 a.] EATLEOADS CROSSING EACH OTHEE. 1165 although applied to public uses, the property so taken is, never- theless, private property, and so within the power of eminent domain ; and the courts of law afford an ample forum for the adjustment of the matter of compensation.^ But the condemnation of the road of another company longitudinally is a more serious interference with the franchises of the road whose property is condemned and may be restrained by injunction, unless a plain and express authority to make such a condemnation has been conferred.^ And a company proceed- ing in good faith to acquire land and construct its road may have an injunction against another corporation which maliciously and in bad faith takes a lease of the land and is proceeding to lay a switch thereon for the purpose of harassing and delaying the petition.^ In the construction and maintenance of railroad crossings,- and in the use of them, both companies are bound to the exercise of the 1 I;ake Shore, &o. R. Co. i;. Chicago, &c. E. Co., 97 111. 506 ; 2 Am. & Eng. K. Cas. 440. See also East St. Louis, &c. K. Co. I). East St. Louis R. Co., 108 111. 265 ; 17 Am. & Eng. R. Cas. 162. In the case of Lake Shore, &c. R. Co. v. Chicago, &o. E. Co,, 96 111. 125 ; 2, Am. & Eng. E. Cas. 437, a railroad company sought to condemn a right of way across the tracks of another company, and, pending the proceedings In the county court, the latter company sought to enjoin by suit in equity their further prosecution. A decree was made, refusing the injunction and dismiss- ing the bill, whereupon a writ of error was filed, and a motion made that the writ be made to operate as a supersedeas. It was held that the grounds in support of the motion could be interposed in defence to the condemnation proceedings, and that the court should refuse jurisdiction. ^ Alexandria & Fredricksburgh R. Co. V. Alexandria & "Washington E. Co., 75 Va. 780 ; 40 Am. Rep. 743 ; 10 Am. & Eng. E. Cas. 23 ; Boston, &c. R. Co. v. Salem, &c. R. Co., 2 Gray (Mass.) 1. On a bill by one railroad company to enjoin a rival company from crossing their track, it was held that the defendant's right to cross being established, the court would retain the^ bill for the purpose of regulat- ing the manner of effecting tbe crossing. South Carolina R. Co. b. Columbia, &c. R. Co., 13 Rich. Eq (S. C.) 339. The Iowa Statute, granting the right to construct a railroad across the track of another company, provides that the cross- ing shall be so constructed as not unneces- sarily to impede the travel or transportst- tion upon the railroad crossed. In the case of Humeston, &c. R. Co. v. Chicago, &c. E, Co., 74 Iowa, 554 ; 35 Am. & Eng. R. Cas. 263, it appeared that the track of the old road at the point at which it was pro- posed to construct the crossiiig was upon a heavy grade, so that if loaded trains were stopped within two hundred feet of the crossing, as the statute required, it would be impossible to acquire Sufficient momentum to ascend the grade, and that trains going the other way, being on a down grade, could be made to stop only with great difficulty and at the sacrifice of much expense in the strain upon the en- gines. It appeared that a crossing under the track could be constructed at a cost of less than $15,000 in excess of the cross- ing at grade. It was held that the old road was entitled to enjoin the crossing at grade ; that the fact that the new company, pending the proceedings, had. constructed various works at a cost of $6,000, which would become useless in case the crossing at grade was enjoined, was not sufficient reason for refusing the in- junction. See 19 Am. & Eng. Ency. Law, p. 869, from which this statement of the case is taken. ' Eochester, &c. E. Co. v. New York, &c. R. Co., 44 Hun (N. Y.), 26. 1166 LOCATION AND OONSTEUOTION. [CHAP. XV. highest care to prevent injury to their passengers; either through a defect in the crossing or through collision with trains of the other road.i In some of the States very salutary statutes exist which require all companies to cause their trains to come to a full stop before crossing the track of another road, or to provide a watchman ' or flagman at every crossing. Such statutes are clearly within the police power of the State, and tending as they do to the protection of passengers and train operatives are always upheld.^ Sec. 287 b. Highway and Private Crosainsa. — By virtue of its power of police regulation over all railroads within its limits, the State has power to require that every railroad company shall con- struct and maintain suitable crossings where its road intersects a highway or a private way. And it seems that such statutes may be made to apply to a company whose road was constructed prior to their passage as well as to others.* In this connection the Supreme 1 California Southern E. Co. v. South- ern Pacific K. Co., 67 Cal. 59 ; 20 Am. & Eng. E. Gas. 309 ; Baltimore, &o. E. Co. V. Walker, 45 Ohio St. 577 ; 35 Am. & Eng. R. Cas. 271 ; New York, &c. E. Co. V. Grand Rapids, &c. R. Co., 116 Ind. 60 ; 35 Am. & Eng. R. Cas. 283. In this'last , case the court stated the rule that where an agreement has been made, regulating the manner in which each company shall nse the crossing, the employes on a train having a right to cross are entitled to pre- sume that the agreement will be observed, and are not bound to anticipate a breach of it. ' Lake Shore, &c. E. Co. v. Cincinnati, &c. E. Co., 30 Ohio St. 604 ; ]\Iobile, &o. R. Co. 0. People, 29 111. App. 428. Com. pare State v. Noyes, 47 Me. 190. The State may' require the establishment of stations or depots at points where two roads cross. State o. Wabash, &c. R. Co., 83 Mo. 144 i 25 Am. & Eng. E. Cas. 133. 8 Illinois Cent. E. Co. u. Willenljorg, 117 111. 203 ; 57 Am. Eep. 862 ; 26 Am. & Eng. R. Cas. 358 ; Worcester, &c. R. Co. i>. Nashua, 63 N. H. 593 ; Boston, &c. R. Co. V. County Com'rs, 79 Me. 386; 22 Am. & Eng. E. Cas. 272 ; Louisville, &c. R. Co. V. Smith, 91 Ind. 119 ; 13 Am. & Eng. R. Cas. 608. Compare Gulf, &o. R. Co. V. Rowland, 70 Tex. 298 ; 35 Am. & Eng. R. Cas. 286 (this case held that a statute. requiring companies to erect farm- crossings could not be operative on com- panies whose roads were already con- structed, since the land-owijer had been paid the co^t of erecting such crossings; it having been included in the condemnation proceedings). Under tlie Iowa statute the land-owner has the right to select the place at which the crossing shall be made, and this right is subject only to the limitation that the selection shall not be unreason- able. Van Vrankin v. Wisconsin, &c. R. Co. (Iowa), 27 N. W. Rep. 761. See also as to selection, Williams v. Clark, 140 Mass. 238. In the case of Boston, &c. R. Co. v. County Com'rs, 79 Me. 386 ; 32 Am. & Eng. R. Cas. 271, the court had under con- sideration a statute (Rev. Stat. Maine, c. 18, § 27) which provided that the expense of building and maintaining such part of a town way or highway as is within the lim- its of the railroad's right of way where such highway crosses the track at grade shall be borne by the railroad company. The defendant company refused to comply with the statute on the-ground that it was passed long after the construction of its road ; moreover, its charter provided that it should not be altered, amended, or re- pealed. It was held, however, that the statute was valid and could be enforced against defendant; it was an exercise of the police power of the State and could SEC. 287 6.] HIGHWAY AND PRIVATE CROSSINGS. 1167 -Court of Illinois, in enforcing a statute requiring railroad oompanies to erect a farm-crossing where its road divided private property, have said : ^ "No reason is perceived why upon the same principle on which a railroad company may be required to fence its track and construct cattle guards it may not be required also to construct farm- crossings. The one is as much required as the other for the con- venience and safety of adjoining land-owners. Such corporations are permitted, in order to secure the best and most useful road-bed, to make deep cuts, and to throw up embankments on their right of way through farms. On account of the peculiar construction of all railways, it is obviously impracticable for the owner whose lands are divided by the track to pass from one part to another unless cross-, ings are provided. Indeed, it would be most dangerous if persons should attempt to cross a railroad track at a point where no provi- sion is made for that purpose, and persons are not permitted to do so. It certainly cannot be inferred that the legislature would irre- vocably grant to a railroad corporation a franchise to construct a railway through farm lands in such manner as to cut off all riglit of passage to and from the portion sepaiated by the road-bed. The ^proposition that a corporation can construct a railroad from Galena to Cairo, and cannot under the police pow6r of the State be com- pelled to construct ' farm-crossings ' over its tracks for the use of the owners of lands over which it passes, is too absurd to be con- sidered seriously." ^ But the power of the Starte in this regard is confined to a reasonable exercise and cannot be made use of to appropriate property withput compensation. Thus, it is held in Michigan that a statute requiring that all railroads companies should not be considered an impairment of the , the State which imposed such a duty. "It charter contract. The court overruled the was held that the company could not he case of State ». Noyes, 47 Me. 189, as made liable to this new burden any fur- being too narrow in its views. A similar ther than might have been required of an ' view was ta]j;en in Albany Northern R. Co. individual, that the ordinance was void as V. Brownell, 24 N. Y. 345, overruling requiring too much of the company. This Miller v. New York, &c. K. Co., 21 Barb, casp is distinguished in Illinois Cent. R. (N. Y.) 513. In the case of Illinois Cent. Co. v. Willenborg, 117 111. 203 ; 57 Am. R. Co. V. Blooming'ton, 76 111. 447 ; 32 Rep. 862. Am. & Eng. R. Gas. 276 n., long after ^ Illinois Cent. R. Co. u. Willenborg, the construction of a railroad, a street was 117 111. 203 ; 57 Am. Rep. 862 ; 26 Am. extended to cross it, and the city passed an & Eng. E. Cas. 358. ordinance requiring the railway company ^ Tjig court distinguished the cases of to make safe and proper crossing by grad- Illinois Cent. R. Co. ■». Blooniington, 76 ing the approaches of the street at the 111. 447, and Chaleraft v. Louisville, &c. crossing. There was nothing in the char- R. Co., 113 111. 86. ter of the company or in the general law of 1168 LOCATION AND CONSTRUCTION. [CHAP. XV. construct residence crossings where the road was immediately adja' cent to or laid upon a highway, and that these crossings should be constructed and maintained substantially as those provided where the road crossed a street and highway, is unconstitutional as applied to railroads already constructed ; that it would amount to an appro- priation of the company's property to compel it to maintain sucli crossings at its own expense, and that such a statute was too com- prehensive to be included within the police power of the State.^ So also a statute requiring the company to make a crossing outside of any enclosure on demand of any two citizens is held unconstitutional.^ While there is some conflict of authority as to whether a railroad company is entitled to compensation where a highway is laid out across its tracks,' the better view now is that such compensation must be made. The property of such a company can no more be taken for the purposes of highway except upon due compensation than can that of a private individual.* " The vague notion," says Chief-Jus- tice Shaw, " that damages cannot be given in favor of a railroad company whose road is crossed by another public way, we think, is founded on the consideration that inasmuch as the track of the rail- road has been already appropriated to one public use, the authoriz- ing 0^ its further public use is not an appropriation of private property to public use, and, therefore, affords no claim for damages. There is something plausible in this ; but on examination we think it does not warrant the distinction in support of which it is relied on."* 1 People V. Detroit, &o. R. Co., 79 ity was held to be repugnant to the consti- Mich. 491 ; 42 Am. & Eng. R. Gas. tution of Michigan and void. People ». 257. - Lake Shore, &c. R. Co., 52 Mich. 277 ; 13 2 Gulf, &c. E. Co. V. Ellis, 70 Tex. Am. & Eng. R. Cas. 611 ; Chicago, &c. E. 307 ; 35 Am. & Eng. R. Cas. 292. See Co. ». Hough, 61 Mich. 507 ; Grand also Gulf, &c. R. Co. v. Rowland, 70 Tex. Rapids ». Grand Eapids, &c, R. Co., 58 298 ; 35 Am. & Eng. R. Cas. 286. Mich. 641." People v. Detroit, &o. R. » See 6 Am. & Eng. Ency. Law, p. 554, Co., 79 Mich. 491 ; 42 Am. & Eng. R. note 2. But none of the authorities there Cas. 257. But a statute requiring mil- cited sustain the view of the text. road companies to erect crossings wherever * Old Colony, &c. R. Co. w. Plymouth highways intersect their tracks is not County, 14 Gray (Mass.), 155; Boston, &c. void as to highways laid out after their R. Co. V. Middlesex, 1 Allen (Mass.), 324; passage as failing to provide compensation. Grand Junction R, Co. v. County Com'rs, where the general statute concerning the 14 Gray (Mass.), 653 ; Crossley w. O'Brien, laying out of highways sufficiently pro- 24 Ind. 325. "Municipal authorities, vides for such compensation. State v. though expressly authorized by statute, Shardlow, 43 Minn. 524 ; 45 Am. & Eng. cannot lay out a highway across the road- R. Cas. 108. bed of a railroad and compel the erection ' Old Colony R. Co. v. Plymouth of cattle guards, etc., without compensa- County, 14 Gray (Mass.), 155. tion. The statute conferring this author-' SEC. 2876.] HIGHWAY AND PBIVATE CEOSSING. 1169 The rule as to the measure of damages, in such cases is set out in a subsequent chapter.^ In accordance with the principles discussed more fully elsewhere, the power to lay out a highway across a railroad and thus appro- priate a part of the company's right of way is not to be easily inferred ; it exists only in cases of clear and express grant of the authority.^ The duty of the company with reference to highway crossings is to construct and maintain suitable crossings wherever its road inter- sects the highway at grade.^ This duty exists although the high- way was laid out after the road was constructed,* certainly when a fair construction of the statute requires it.^ This duty is a continu- ing one,® and requires the maintenance, repair, and improvement of the crossing to meet the increased wants of the public7 It embraces the duty to construct and maintain not only the actual crossing, but its approaches even where they extend beyond the limits of its right of way.* The character of the crossing must be such that the usefulness of the highway shall not be impaired by the construction and operation of the railroad across it ; * although it is not required 1 See ante, Chapter XIV. ' See also Chicago, &c. E. Co. p. Lake, 71 IlL 333 ; Hannibal v. Hannibal, &c. R. Co., 49 Mo. 480; Little Miami, &c. E. Co. V. Dayton, 23 Ohio St. 510 ; Iron E. Co. v. Ironton, 19 Ohio St. 229 ; ■ Bridgeport v. New York, &c. R. Co., 36 Conn. 255 ; 4 Am. Rep. 63. Under a statute declaring that a way "may be so made as to pass over or under a railroad," a way crossing at grade is not authorized. Central Vermont E. Co. v. Eoyalton, 58 Vt. 234. ' Gear v. Chicago, &c. R. Co., 45 Iowa, 83; Farley ». Chicago, &c. E. Co., 42 Iowa, 234 ; Bury v. Northeastern E. Co., 72 Ga. 137 ; 28 Am. & Eng. E. Caa. 575 ; Cooke V. Boston, &c. E. Co., 133 Mass. 185 ; 10 Am. & Eng. E. Cas. 328 ; Chesa- peake, &c. E. Co. V. Dyer County, 87 Tenn. 712 ; 38 Am. & Eng. E. Cas." 676 ; Paducah, &o. E. Co. e. Com., 80 Ky. 147; 10 Am. & Eng. E. Cas. 318; People v. Chicago, &o. R. Co., 67 111. 118 ; State v. Dayton, &o. R. Co., 36 Ohio St. 436; Buchner v. Chicago, &o. E. Co., 60 Wis. 264 ; 14 Am. & Eng. E. Cas. 447. * Louisville, &c. E. Co. v. Smith, 91 lud. 119 ; 13 Am. & Eng. R. Cas 608 ; ante, note 3, p. 1166. Compare Gulf, &c. R. Co., V. Rowland, 70 Tex. 298 ; 35 Am. & Eng. R. Cas. 286. * Illinois Central R. Co. i'. Willenborg, 117 111. 203 ; 53 Am. Rep. 862 ; 26 Am. & Eng. E. Cas. 358 ; Northern Cent. R. Co. V. Baltimore, 46 Md. 425. * Chesapeake, &o. R. Co. v. Dyer County, 87 Tenn. 712 ; 38 Am. & Eng E. Cas. 676; Pittsburgh, &c. R. Co. -a. Dunn, 56 Penn. St. 280; Cooke v. Bo.ston, &c. R. Co., 133 Mass. 185 ; 10 Am. & Eng. R. Cas. 328 ; Manley v. Sts Helena, &c. E. Co., 2 Hurl. & N. 840. ' Burnett v. New Haved, &c. R. Co., 42 Conn. 174j English u; New Haven,' &c., Co., 32 Conn. 241 ; Cooke v Boston, &c. R. Co., 133 Mass. 185 ; 10 Am. & Eng. E. Cas. 328. 8 T'itoomb o. Fitfchburgh, E. Co., 12 Allen (Mass.), 254 ; Maltby ». Chicago, &c. E. Co., 52 Mich. 108; 13 Am. & Eng. E. Gas. 606. Post, Chapter XV., Section on " Bridges." See,however, People v. Lake Shore, &o. R. Co., 52 Mich. 108 j 13 Am. & Eng. R. Cas. 611. • 9 People V. New York, &o. R. Co., 89 1170 LOCATION AND OONSTRUOTION. [OHAP. XV. actually to improve the highway,^ it must restore it to its former state of usefulness as nearly as is practicable.^ The duty of the company relative to crossings ordinarily applies only to public higliways or streets ; ^ but if it has by license allowed a crossing to become publiCj it will be compelled to maintain it in proper repair.* For a failure to discharge its duties in regard to crossings, the company is liable to indictment,'' and is responsible in damages for all the consequences of its failure.^ It may be compelleid to discharge its duties by man- damus^ or, as many of the statutes specifically provide, the munici- pality or the land-owner interested may, after due notice, construct or repair the crossing and collect the cost from the company .^ Where the statute imposes upon a railroad company which con- structs its line across a highway the duty to restore the same " to its former state or to such state as not unnecessarily to impair its usefulness," it does not relieve the commissioners of highways from the care and control of those parts of public highways constituting approaches to railroad crossings, although constructed by the railroad N. Y. 266 ; 10 Am. & Eng. B. Cas. 230 ; Farley i). Chicago, &c. B. Co., 42 Iowa, 234. 1 Beatty v. Chicago, &o. R. Co., 58 Iowa, 242 ; 8 Am. & Eng. E. Cas. 210. 2 State' w. Minneapolis, &o. R. Co., 39 Minn. 219 ; 35 Am. & Eng. B. Cas. 250. ' International, &o. B. Co. v. Jordan (Tex. 1883), 10 Am. & Eng. B. Cas. 301 ; Missouri, &c. R. Co. v. Long, 27 Kan, 684; 6 Am. & Eng. B. Cas. 254 ; Flint, &c. R. ' Co. V. Willey, 47 Mich. 88 ; 5 Am. & Eng. K. Cas. 305. * Harriman v. Pittsburgh, &c. R. Co., 45 Ohio St. 11 ; 32 Am. & Eng. R. Cas. 87 i Barry u. New York, &o. R. Co., 92 N. Y. 289 ; 13 Am. & Eng. K. Cas 615 ; Kelley v. Southern Minn. R. Co., 28 Minn. 98 ; 6 Am. & Epg. R. Cas. 264. ' Paducah, &o. R, Co. v. Com., 80 Ky. 147 ; 10 Am. & Eng. R. Cas. 818 ; Pittsburgh, &o. R. Co. v. Com., 101 Penn. St. 192 ; 10 Am. & Eng. R. Cas. 321 ; ante, § 231. ' Thus, where a horse is injured through a defect in the crossing, the company must respond in damages to the owner. Payne V. Troy, &c. B. Co., 83 N. Y. 672 ; 6 Am. & Eng. R. Cas. 54 ; Hanghman v. Shenango, &c. R. Co., 92 Penn. St. 335; 6 Am. & Eng. R. Cas. 51 ; Hudson v. Chicago, &c. R, Co., 59 Iowa, 681 ; 8 Am. & Eng. R. Cas. 464 ; Evansville, &c. II. Co. v. Carvener, 113 Ind. 61 ; 82 Am. & Eng; B. Cas. 134. So also the company is liable for all other injuries whether to persons or animals, resulting from its failure properly to discharge its duty relative to the cross- ing. Mann v. Central Vt. R. Co., 65 Vt. 484 ; 14 Am. & Eng. R. Cas. 620 ; John- son V. St. Paul, &c. R. Co., 31 Minn. 283; 15 Am. & Eng. R. Cas. 467. ' State V. Minneapolis, &c,. R. Co. 39 Minn. 219 ; 35 Am. & Eng. K, Cas. 260 ; ante, § 231. ^ Chesapeake, &o. B. Co. v. Dyer County, 87 Tenn. 712; 38 Am. & Eng. B. Cas. 678. A provision in the charier of a railway corporation that the road shall be so constructed as not to obstruct the safe and' convenient use of any private way which it crosses, imposes upon the corpora- tion the duty of maintaining a safe and convenient crossing for such private way. Keefe v. Sullivan County E. Co., 63 N. H. 271. In the caseof Williams w. Clark, 140 Mass. 238, it was held that if a company agree forever to maintain a crossing over A.'s landand afterwards raises the grade of its road, A. must bear the expense of the new approaches. Sed qiuere. SEC. 287 C.J DUTY TO ESTABLISH STATIONS. 1171 company in tbe discharge of its statutory duty. But they may insti- tute proceedings to compel a railroad company to fully perform this duty, and when it is in default may proceed to do the necessary work and maintain an action against the company for the expense.^ Nor is a railroad corporation relieved from the duty imposed upon it by statute to restore a highway intersected by its road to, such state as not unnecessarily to have impaired its usefulness, by the fact that a street railway company whose road runs along the high- way is obliged to keep the highway between the rails of its track in repair. The duty of maintaining the crossing in proper condition is not limited or restricted by privileges granted to or duties imposed upon others'.^ Sec. 287c. Duty to establish Stations. —It is a part of the duty owing by a railroad company to the public 'to establish and maintain stations at points along its road so as to furnish reasonable facilities for the use of the road to the inhabitants of the country through which it passes ; and contracts which have the effect to prevent a proper discharge of this duty are never upheld.* But it rests entirely within the discretion of the company as to where it is best to locate its stations and in the absence of a statute or of a valid contract requiring the location of a station at a certain place, a court has no authority to issue a mandamus to compel a location there.* In a recent case in the Supreme Court of the United States, a very strong case was presented. It appeared that the charter of the com- pany gave it a discretion as to the location of the route of its road, and imposed no specific duties in regard to the establishment of 1 Bryant v. Randolph, 133 N. Y. 70, covery, unless the death was caused by the disapproving Baitlett v. Crozier, 17 Johns, wrongful and wilful act." Defendant's ( N. Y. ) 440 ; West v. Brockport, 16 N. counsel requested a charge " that if the dri- Y. 161. ver's negligence was the proximite cause of 2 Masterson ». New York Cent. R. Co., the jar, the plaintiff cannot recover.". The 84 N. Y. 247. In this case the plaintiflfs court refused to alter its charge. Held, testator was a stranger, riding, by the no error, that the charge in this respept invitation of the driver, in a wagon upon was sufficient. Cosgrove v. New York a highway cfossed by defendant's road. Cent. R. Co., 13 Hun (N. Y.), 329, and A wheel of the wagon went into a hole in Barringer v. New York Cent. E. Co., 18 the road between the rails of defendant's Hun (N. Y.), 398, 'distwguished. track, and he was jolted from the wagon • ' See § 184 and cases cited ; Mobile, aud killed. In an action to recover dam- &c. E. Co. v. People, 132 111. S59; 42 Am. ages the court charged in substance that & Eng. E. Cas. 671. " carelessness upon the part of the driver, . * Northern Pac. R. Co. v. Washington assuming he was a competent driver and a Territory, 142 U. S. 492 ; 48 Am. & Eng. sober man and there was no reason which R. Cas. 475, reverHng 3 Wash. Ter. 363 ; the deceased could discover viihy he should 29 Am. & Eng. R. Gas. 82. not ride with him, would not defeat a re- 1172 LOCATION AND CONSTRUCTION. [CHAP. XV. stations along its line. When the road was first constructed the company stopped its trains at a place known as Yakima City, the county seat and principal town of the county, but built no depot there. When the road was completed four miles further it reached the town of North Yakima, a town which had been laid out by the company on its own land. The company then established a pas- senger and freight station there, and ceased to stop its trains at Yakima City. Mandamus was then applied for to compel it to make Yakima City a station and to stop its trains there. But before the suit was determined, Yakima City rapidly retrograded, and the town of North Yakima, as rapidly increased in size and population, became the largest city of the county and was made the county seat. There were other stations which furnished sufficient facilities to the country south of North Yakima, and it was shown that under existing conditions a station at Yakima City would not pay expenses. It was also shown that the surrounding country would be better served by a station at North Yakima than at Yakima City. The court held that the mandamus should not issue. Courts cannot attempt supervision of railroads nor create their duties ; the remedy in such cases is to be sought in proper legislation.^ Nevertheless, there is strong authority for the view that courts have power to compel the 1 In the case of Atchison, &<;. R. Co. the court, remarked that " a plainer case V. Denver, &o. R. Co., 110 U. S. 681-682 ; could hardly be presented of a deliberate 16 Am. & Eng. E. Cas. 57, in passing upon and intentional disregard of the public in- the question as to whether a railroad could terest and the accommodation of the pub- be compelled to stop its trains and estab- lie," but that the court was helpless, as it lish a station at its junction with another was no part of the common-law duty of road, Waite, C. J., said; "Such matters the company to provide warehouses or are and always have been proper subjects passenger stations, and no such duty was for legislative consideration, unless pre- imposed by the legislature. He further vented by some charter contract; but, as observed "no doubt, as the respondent a general rule, remedies for an injustice of urges, the court may by mnndamns also that kind can only be obtained from the act in certain cases affecting corporate legislature. A court of chancery is not, matters, but only when the duty con- any more than is a court of law, clothed cerned is spidJU and plainly imposed vpon with legislative power." In People v. the corporation. . . . Such is not the case New York, &o. R. Co., 104 N. Y. 66 ; 29 before us. The grievance complained of Am. & Eng. R. Cas. 480, the court re- is an obvious one, but the burden of re- fused to grant a mandamus to compel a moving it can be imposed upon the de- company to construct and maintain' a fendniit only by legislation." See also station and warehouse sufficient to accom- Southeastern R. Co. v. Com'rs, 6 Q. B. modate a town of twelve hundred inhab- Div. 586, 592. Compare, however, " the itants which supplied a large passenger brief but vigorous dissenting opinion of and freight business to the road ; and this Mr. Justice Brewer in the case of North- notwithstanding the railroad commission- eni Pac. R. Co. v. Washington, 142 U. S. ers had recommended such a station and 492. warehouse. Danforth, J., speaking for SEC. 287 c] DUTY TO ESTABLISH STATIONS. 1173 establishment of stations as a part of the company's duty as a carrier of goods and passengers. In a case before the Supreme Court of Nebraska, the road ran within one thousand feet of the corporate limits of B; a town having fifteen hundred inhabitants or more, but refused to stop its trains there or to establish a station. The court held that it was a part of the cpmmon-law duty of the company, as a carrier of passengers, to maintain such stations as would afford reason- able facilities to the people of the outlying country, and therefore issued a mandamus to compel the location of a station at B.^ There is no question that the legislature may provide that the company shall establish stations at particular points, and where this is done the courts, of course, can compel the performance of the spe- cific duty by mandamus,'^ so also the State may confer upon a board of commissioners power to determine whether stations shall be located at certain points, and their conclusions are final and can likewise be enforced by judicial process.^ In several of the States there are 1 State V. Republican Valley R. Co., 17 Neb. 647 ; 18 Neb. 612 ; 22 Am. & Erg. R. Cas. 500, 506, citing Vincent v. Chicagd, &c. E. Co., 49 111. 33; Messen- ger V. Pennsylvania E. Co., 36 N. J. L. 407 ; State v. Nebraska Teleph. Co., 17 Neb. 126. But this case was expressly disapproved in the case of Northern Pac. R. Co. v. Washington Ter., 142 U. S. 492. The Illinois courts go a long way towards holding that a mandamus will issue to compel the location of a station where it is needed, but they do not oppose the rule stated in the text, though they strongly incline to the view of the Nebra.ska court. In People v. Louisville, &c. R. Co., 120 111. 48, a mandamus issued to compel the relocation of a station at a county seat where there had once been a station ; this on the ground that having originally es- tablished a station there the company had no power to change it without authority. See People v. Chicago, &c. R. Co., 130 111. 175; 40 Am. & Eng. R. Cas. 352; Mobile, &c. R. Co. v. People,' 132 111. 559, 671 ; 42 Am. & Eng. R. Cas. 671. These cases are reviewed at length by Mr. Justice Gray in Northern Pac. R. Co. u. Wash- ington, 142 U. S. 492 ; 48 Am. & Eng.R. Cas. 485-486. » Com. V. Eastern R. Co., 103 Mass. 254, 258. " Railroad Com'rs v. Portland, &e. R. Co., 63 Me. 220. See also Southeastern Ry. Go. V. Com'rs, 6 Q. B. Div. 586-592. In a case in Connecticut, under the statute of that State providing that no railroad company " shall abandon any depot or station after such depot or sta- tion has been established for twelve months except upon approval of the com- missioners and after due notice and hear- ing, it appeared that the New Haven & Northampton Co. in 1848 constructed a railroad which in 1849 they leased to the New York & New Haven E. Co. The latter, soon after taking possession of the railroad, built a platform for the accom- modation of passengers at a place on the road which was thereafter called "Brook's Station," and placed there an old baggage car which served as a shelter for waiting passengers. No agent was ever placed there, and no tickets were sold there, nor was any freight way-billed to or from that station, but to and from another station in the same town. But tickets were sold at other stations to passengers for that sta- tion, and trains were stopped to take up passengers, and trains carrying the mails stopped there regularly. The court held 1. That Brook's Station was a " station or depot" within the meaning of the statute. 2. That upon the expiration of the lease 1174 LOCATION AND CONSTEUCTION. [CHAP. XV. statutory provisions against the abandonment of an established sta- tion except upon consent of the board of commissioners ; where this is true judicial process will lie to prevent a breach of the .statutory duty or to compel the re-establishment of an abandoned station.* The threatened violation of a mere naked legal right, unaccom- panied by special circumstances, does not furnish an adequate ground for an injunction, when legal remedies are adequate to redress any resulting injury. In a New York case, a street railroad corporation, having obtained the consent of the town ofificers and land-owners required by statute, constructed its railroad over a portion of its route, specified in its articles of association. The consents were granted upon the express condition that the company should run trains daily over the whole of the route to and from the terminus thereof in that town. The defendant proposed to change the ter- minus, abandoning a portion of its route, and was preparing to make the necessary alterations for that purpose, when an action was brought by the supervisors of the town to restrain such abandonment, and to the roftd reverted to the New Haven & Northampton Co. in the condition it then was, and that they, the lessors, were con- cluded by the establishment of the station by the lessees during the lease. 3. That a matidamus would lie at the. instance of the Attorney-General to compel the New Haven & Northampton Co. to re-establish the station, they having abandoned it without the consent of the commissioners. State V. New Haven, &c. R. Co., 37 Conn. 163. ' Changing the site of a station from one plaqe to another in the same town, when made for reasons of convenience, necessity, or the public good, is not within the prohibition of the Mississippi statute against the "abolishment or disuse of any depot when once established," without the consent of the railroad commission. Such a change,' however, can only be made with- out obtaining the consent of the commis- sion when the new site is convenient and accessible, and public interest does not suffer. State v. Alabama, &c. R. Co., 68 Miss. 658; 50 Am. & Eng. R. Cas. 10. Under the New York law an injunction will not be granted to restrain a city rail- road company from removing its depot to a snfer and more convenient locality. Moore v. Brooklyn City R. Co., 108 N. Y. 98 J 36 Am. & Eng. R. Cas. 76. A city is not a trustee for the public or for individuals, so that it can maintain an action for damages against a railroad com- pany for the loss or inconvenience such individuals suffer from the abandonment of a station. City of St. Thomas v. Credit Valley R. Co., 12 Out. Rep. 273 ; 36 Am. & Eng. R. Cas. 473. But a pri- vate individual who has contracted with the company to have it maintain a station near his property is entitled to recover damages for a breach of the contract by a removal of the station ; and in such case compensation may be had for the reduc- tion in the value of his property caused by such removal. Houston, &c. R. Co. V. Molloy, 64 Tex. 607 ; 25 Am. & Eng. R. Cas. 244. But one cannot recover for such decrease in the value of his property when the station was on the land of another and removed therefrom. Pitts- burgh So, R. Co. V. Reed (Penn,), 28 Am. & Eng. R. Cas, 233. See also Attorney- General V. Eastern R. Co., 137 Mass. 45; 21 Am & Eng. R. Cas. 237 (as to distinc- tion between re-location and abandonment of station) ; New Haven, &c. Co. v. Ham- mersley, 104 U. S. 1 j 2 Am. & Eng. R. Cas. 418. SEC. 287 <i.] KTGHT TO PROVIDE EEGULATIONS, ETC. 1175 compel the defendant to continue the running of its trains over the whole of the route. The court found that the proposed change was demanded by public convenience and safety ; that the operation of the road over that portion of the route proposed to be abandoned was and is a dangerous obstruction to travel. It was held that the action was not maintenable, because no public injury was shown to be likely to result from the proposed change, and that the plaintiffs, as highway commissioners, had no legal capacity to maintain the action, and that this would be so, even if the public interest required the observance of the condition. If the defendant violates its charter, or fails to perform the conditions under which it exercises its franchise, the remedy is a proceeding in behalf of the State by the Attorney-General to annul its charter; and if it unlawfully occupies or obstructs the highway, the remedy is by indictment or proceedings under the statute.^ Sec. 287 d. Right to provide Reasonable Regulations as to Sta- tions. — Exclusive Privileges. — A railroad company has authority to provide reasonable rules and regulations with regard to its stations, with which all who come there either to take passage on its trains or to solicit the patronage of passengers must comply.^ Thus it may provide that every person shall be required to show his ticket to Jhe gateman before being admitted into the train yard.^ But such a regulation is valid dnly so long as it is reasonable ; therefore, where the gateman refuses to allow a passenger to take his train merely because the date of his ticket is illegible, though the ticket is otherwise good, the- company must answer in damages because such an enforcement of tihe rule is unreasonable.* It would appear, 1 Moore v. Brooklyn City E, Co., 108 must purchase a ticket or be excluded N. Y. 98. from the station is held to be reasonable. 2 Summit i). State, 8 Lea (Tenn.), 413; Harris v. Stevens, 31 Vt. 79;. 73 Am.' 41 Am. Rep. 637 ; 9 Am. & Eng. R. Cas. Dec. 337. But the company cannot deny 302; Baltimore, &c. R. Co. ,«. Carr, 71 admission to the station to those persons Md. 135. See also the article on "Sta- who come to meet an expected passenger tions " in the American and English Ency- or to see one safely off. olopaedia of -Law. * Northern Cent. R. Co. v, O'Conner ' Dickerman ii. St. Paul Union Depot (Md.), 24 Atl. Rep. 449 ; 52 Am. & Eng. Co., 44 Minn. 433 ; 45 Am. & Eng. R. R. Cas. 176 ; Watkins v. Pennsylvania Cas. 696; Watkins v. Pennsylvania R. R. Col (D. C), 52 Am. & Eng. R. Cas. Co. (p. C.), 52 Am. & Eng. R. Cas. 159. In the former of these cases, the 159. See in this connection the argument date being illegible, the gateman insisted of Mr. Enoch Totten in the above ease, that the passenger have it indorsed by the set out in the note to the case as reported ticket receiver, but he refused j in an in the Am & Eng. R. Cas. vol. 62, p. 169. action by the passenger the court allowed A regulatioQ by the company that a person a recovery, fixing the measure of damages 1176 LOCATION AND CONSTRDCTION. [CHAP. XV. also, that if a feeble passenger is attended by a relative or friend •who is to assist him on the train, it would be unreasonable to refuse such friend an entrance to the train yard, although he had no ticket.^ Persons who are boisterous or intoxicated, or who indulge in pro- fanity, or who are mere loungers may be expelled from the station ; the company not only has a right to so expel them bat it owes the duty to its passengers to relieve and protect them from the annoy- ance attending the presence of such persons.^ , The company may also adopt regulations as to the conduct of hack and omnibus drivers who bring passengers to, and carry them from, the station. For example, it may, on its own grounds, assign places to the different hackmen and exclude all hackmen from places not assigned to them ; and the right to adopt such a regula- tion carries with it the right to enforce it, so that the agent cannot be held liable for assault where he uses only such force against a hackman as is necessary to enforce obedience to the regulation.^ But while the station and the grounds adjacent are the private property of the railroad company, they are, like all other property of the company, affected with a public use ; the company cannot, there- fore, grant to any person or company the exclusive privilege of an approach to its station or of the use of its station grounds for the at the amount paid by passenger for an- while at the station for the purpose of other ticket, compensation for loss of time, supplying passengers with lunches. The necessary hotel expenses, and also a re- company after notice revoked the license, muneration for any inconvenience suffered, and on plaintiff's insisting upon an at- In the latter of the above cases the plain- tempt to exercise the privilege he was tiff's ticket was irregular, but he was expelled several times. The court held entitled to travel on it. The gateman had that he had no ground of action. The no authority to recognize it ; but the court company had a right to forbid the use of held that plaintiff had a right to dam- its premises for any such purposes, and ages, though it stated very clearly the the fact that it had allowed plaintiff the right of the company to provide regula- privilege for many years did not affect its tions as to its stations. rights. And the expulsion having been 1 Persons at the station for such pur- accomplished without unnecessary vio- poses are entitled to all the privileges of a lence, no damages could be recovered, passenger. See Hamilton v. Texas, &n» See Wood v. Jjeadbetter, 18 M. & W. R. Co., 64 Tex. 251 ; 21 Am & Eng. R. 838 ; Barney v. Oyster Bay, &c. Co., 67 Gas. 836. N. Y. 301 ; Pittsburgh, &o. R. Co. v. 2 Johnson v. Chicago, &c. R. Co. 61 Bingham, 29 Ohio St. 364. Iowa, 25; 60 N. W. Rep. 648. In the » Cole «. Rowen, 88 Mich. 219; 60 case of Fluker w. Georgia R., &e. Co., Am. dilEng. R. Cas. 1. So it may require 81 Ga. 461 J 38 Am. & Eng. R. Cas. that hacks shall not stand in front of the 379, it appeared that the plaintiff had for entrance to the station, and may employ a long period enjoyed the exclusive priv- force to remove a hackman who refuses ilege (as a licensee) of occupying a part of compliance. Smith v. New York, &o. R. the station and of entering upon the cars Co. (Peun.), 24 Atl. Rep, 304. SEC. 287 d.^ EIGHT TO PEOVIDB EEGTJLATIONS, ETC. 1177 purpose of transporting passengers or freight to or from the depot. The exclusion of other persons engaged in the same business is a violation of the duty which the railroad company owes, of furnishing equal facilities to all connecting carriers.^ The Massachusetts Court, however,, has upheld such a grant of exclusive privileges in the face of statute specifically defining the duties owing by all carriers to connecting carriers. But this decision is much weakened by the fact that three of the judges dissented; and is unquestionably opposed by the weight of authority.^ ' ' 1 McConnell v. Pedigo (Ky.), 18 S. W. Eep. 15 ; 50 Am. & Eng. R. Cas. 5 ; Kalaiuazqo Hack, &c. Co. v. Sootsma, 84 Mich. 194 ; 22 Am. St, Eep. 695 ; 47 Airi. & Eng, E. Cas. 445 ; Cravens v. Kodgers, 101 Mo. 247 ; 22 Am. St. Eep. 699-700 n!; 42 Am. & Eng. R. Cas. 656 (even though the fayored individual expends much money in erecting suitable approaches, etc.) ; Montana Union E. Co. V. Langlois, 9 Mont. 419 ; 42 Am. & Eng. R. Cas. 656 (extensive opinion). The doctrine of the text is very clearly laid down in Marriott v. London, &c. Ey., Co., 1 C. B. K. s. 499; 87 E. C. L. 498.' In. the Michigan case above cited the court said: "While many of the cases above cited are decided in reference to statutes of the same import as our own, it is clear that the action of the raUrdad company in leasing this ground to the plaHntiff, would, if sustained as valid, tend to encourage and promote a monopoly of carriage of passengers from this depot at Kalamazoo, not only to connecting routes of travel upon other railroads out of the city, but to places within the city, con- trary to the spirit of our laws, and against that public policy that refuses to encourage or foster monopolies in any kind of business." The doctrine of the text is also strongly sustained by analo-t gous cases. See New England Express Co. V. Maine Cent. E. Co., 57 Me."l88 ; 2 Am. Eep. 31 ; Palmer w. Londoui &c. Ry. Co., L. R. 6 C. P. 194; Parkinson V. Great Western Ry. Co., L. R. 6 C. P. 554 ; Markham v. Brown, 8 N. H. 523 ', 31 Am. Dec. 209 ; Camblos v. Railroad Co., 9 Phila. 411. See also Griswold v. Webb, 16 R. I. 649 ; 40 Am. & Eng. E. Cas. 683. 2 Old Colony R. Co. v. Tripp, 147 Mass. 35; 9 Am St. Rep. 661 ; 33 Am. & Eng. R. Cas 488. See also Barker v. Mid- land Ry. Co., 86 E. C. L. 46. VOL. II. — 24 1178 mechanic's lien. [OHAP. XVI. CHAPTER XVI. Mechanic's Lien. Sec. 288. Does not cover Road-bed, Bridges, &c. 289. Boiling-Stock. 290. Lien is assignable. 291. Party cannot have Successive Liens, when. 292. Rights of Lienor as against Mortgagees. 293. Essentials to Validity of Lien. 294. Persons in vrbose Favor Lien may exist. 295. Mechanics, Laborers, Workmen, Servants, &c., who are. 295 a. Material Men. Sec. 288. Does not cover Road-bed, Bridges, etc. — Because of the character of railroads as g^uasi public highways, and the incon- veniences and annoyances to which the public are apt to be subjected by the enforcement of liens against a railroad or its appurtenances, the ordinary mechanic's lien laws are construed as not embracing railroads unless it is expressly provided otherwise.^ In many of the States, however, there are special statutes providing for existence of the lien for work done or materials furnished for railroads ; and as there is no constitutional objection to such liens, the legislature being the sole judge as to the wisdom and expediency of statutes allowing them. These statutes are generally extended to laborers, subcontractors, and material men, and embrace not only the buildings or other structures belonging to the road but also the road-bed itself.^ A railroad from one end to the other is an entirety, and, as a whole only, may be subject to coercive sale ; ' and for this reason. 1 Buncombe ■». Tomney, 115 U. S. 122 ; 20 Am. & Eng. R. Cas. 495 ; New- castle R. Go. u. Simpson, 26 Fed. Rep. 133 ; Graham v. Mt. Sterling Coal R. Co., 14 Bush (Ky.), 425; 29 Am. Rep. 412. The Ohio statute, giving a mechanic's lien on " any house, mill, manufactory, or other building, appurtenance, fixture, bridge, or other structure," and on the interest of the owner of the same, " in the lot of land on which the same shall stand or be removed to," for labor per- formed, or machinery, or materials fur- nished by the contractor "for erecting, altering, repairing, or removing the same," is held not to give a lieu upon a railroad, Rutherford v. Cincinnati, &c. R. Co., 35 Ohio St. 559. The mechanic's lien is not analogous to that held by a vendor. Kin;; V. Alford, 9 Ch. Div. 643; 24 Am. & Eng. R. Cas. 331. ^ See succeeding sections. Also Peters V. St. Louis, &c. R. Co., 24 Mo. 586; Code of Tenn. (1884), §§ 2774 et seq. ' Dunn V. North Mo. R. Co., 24 Mo. 493 ; Graham v. Mt. Sterling Coal E. Co., SBO. 288.] DOBS NOT COVER EOAD-BBD, BEIDGES, ETC. 1179 unless the statute in express terms so provides, a mechanic's lien will not lie against a detached portion .of a railroad track, nor against its bridges, culverts, trestles, etc.^ In the case first cited in the last note, an attempt was made to enforce a mechanic's lien upon certain bridges, culverts, trestles, etc., of the defendant. The meohanie's lien law did not in express terms embrace railroad structures, and the court held that such d, construction could not be given to the law, because to permit the enforcement of such liens on such structures would destroy the usefulness of the road, and would be not only contrary but ruinous to the public interest. " The effect of the con- struction contended for/' said Elliot, J., " might be to parcel out the various bridges, culverts, etc., of the road among the mechanics who furnished the material and erected them, and retard or destroy the usefulness of the road to the Corporation as well as to the public." And a similar doctrine, and upon the same grounds, was adopted in the Missouri case ^ referred to. But this doctrine does not apply to depot-buildings and structures of a similar character/ and a statute other is an entirety, and, as a v'hole only, may ^be subject to taxation or coercive sale. Fragmentary taxation or sales might be unjustly yexatious and injurious to the owners, pervert the destination of the road, and disturb the public use and interest.' To avoid such evils and ab- surdities, the law treats a railroad and all its appurtenances as one entire thing, not legally subject to coercive severance or dis- location. In that consolidated character it must be taxed for State revenue, and cannot be * fit subject for local taxation by the separate counties through- which it runs." 1 Graham v. Mt. Sterling Coal E. Co., 14 Bush(Ky.), 425; 29 Am. Rep. '412; Dunn V. N. Mo. R. Co., 24 Mo. 493 ; Tyler, &c. R. Co. v. Driscoll, 52 Tex. 13 ; Central, &c. B. Co. v. Henning, 52 id. 466 ; Schulenburg v. Memphis, &c. R. Co., 67 Mo. 442. Such structures are not "buildings" within the statute. La Crosse, &c. R. Co. v. Vanderpool, 11 Wis. 119; 78 Am. Deo. 691. See also New Eng. Car Springs Co. v. Bait. &e. R. Co., 11 Md. 81; 69 Am. Dec. 181. 2 Dunn V. North Mo. R. Co., 24 Mo. 493. » Hill II. La Crosse, &c. E. Co., 11 Wis. 214. 14 Bush (Ky.), 425 ; 29 Am. Rep. 412 ; Applegate v. Ernst, 3 Bush (Ky.), 650 ; 96 Am. Dec.- 272. Lien laws are not retroactive, and do not apply to labor done or material furnished before their passage. Central, &c. E. Co. v. Hen- ning, 52 Tex. 466 ; Arbuckle v. Illinois, Mid. R. Co., 81 111. 429. In Pdrker v. Massachusetts R. Co., 115 Mass. S80, the statute of 1873 giving a person to whom a debt is due a lien for labor done in build- ing a railway, by virtue of an agreement with a contractor, was held ^lot to apply where the contract was made between the •railway company and the contractor before the law was passed, although the labor was performed afterwards. In the case of Graham ». Mt. Sterling R. Co., 14 Bush (Ky. ), 425 ; 29 Am. Rep. 412, the con- tractor attempted to enforce his lien against some of the bridges and trestles of the railroad. In denying his right so to enforce his lien, the court said : " To give to the mechanic's lien law a construc- tion that would allow enforcement of me- chanics' liens on such structures would destroy the usefulness of these roads so valuable to the public. " This court, decided in Applegate ». Ernst, 3 Bush (Ky.), 650; 96 Am. Dec, 272, that a ' railroad from one end to the 1180 mechanic's lien. [chap. XVI. giving a mechanic or material man a lien upon " buildings " applies to buildings of a railway company as well as to those of a private corporation or individuals.^ For similar reasons, unless the statute provides otherwise, neither contractors nor laborers have a Jien upon any specific portion of a railroad, but their lien must be filed upon the entire road, and not upon the particular section upon which the labor was performed ; ^ and in the enforcement of the lien the whole road must be sold. Public policy is opposed to the subjection of detached portions in favor of various mechanics or contractors.^ But where the , statute expressly gives a lien upon the particular section of the road upon which the labor was performed, that section alone is subject to the lien.* In Missouri, under the statute, it is held that where a rail- road is built through or in two or more States, a lien may be enforced upon that portion of the road which is' situated in that State, although the work was done or materials were furnished on that part of the road which is without the State ; ^ but we think that this construc- tion cannot be given to these statutes, except where both the lan- guage of the act and the circumstances are very peculiar, as it cannot, 1 Botaford v. New Haven, &o. R. Co., Mo. 374 ; 7 Am. & Eiig. K. Cas. 394 ; 41 Conn. 464. In this case, the point Schulenberg v. Memphis, &e. R. Co., 67 was raised that the statutory lien could Mo. 442 ; Cranston v. Union Trust Co., not apply, beciuse the easement of the soil 75 Mo. 29 : St. Louis, &o. Bridge Co. v. only is taken by the company, the fee Memphis, &c. R. Co., 72 Mo. 664 ; Rey- * remaining in the land-owner. "If," said nolds «. Hosmer, 51 Cal. 205; Farmers' Foster, J., "it be granted that the ease- L. & T. Co. v. Candler, 87 Ga. 241 ; 47 ment in the soil is taken for the railroad Am. & Eng. R. Cas. 296. But it seems in the exercise of the right of eminent that the lien may be enforced against only domain, it by no means follows that the that portion of the road which is within soil is so taken with an immunity from all the State. Ireland v. Atchison, &c. R. liens and incumbrances upon it. Such an Co., 79 Mo. 572 ; 20 Am. & Eng. R. Cas. exercise of the sovereign power would be 498. dishonest." A lien obtained against a railroad run- 2 Cox V. Western Pac. R. Co., 44 Cal. ning through several counties, by filing 18 ; Knapp v. St. Louis, &c. R. Co., 6 the requisite statutory notice and claim in Mo. App. 205. But the lien only applies one county, extends to the proceeds of the to that portion of the road which is com- sale of the entire road both as against pleted when the lien matures. Neilson «. the owners and mortgagees of the road. Iowa Eastern R. Co., 51 Iowa, 184. In Farmers' L. & T. Co. v. Canada, &c. B. Missouri it is held that the statute does Co., 127 Ind. 250 ; 47 Am. & Eng. R. Cas. not apply where materials are furnished 271 ; Midland R. Co. v. Wilcox, 122 Ind. for, or labor is performed only upon, tem- 84. porary structures which are never incor- * Cox v. Western Pacific R. Co., 47 porated in the permanent work. Knapp Cal. 87. V. St. Louis, &o. R. Co., 6 Mo. App. 205 ; » St. Louis Bridgp, &c. Co. v. Memphis, affirmed, 74 Mo. 374. &o. R, Co., 72 Mo. 664. ' Knapp V. St. Louis, &o. R. Co., 74 SEC. 289.] KOLLIKG-STOGK. 1181 in the absence of express terms to that effect, be presumed that the legi^kture intended to extend the benefits of these extraordinary- acts to persons who performed their labor, or furnished materials, in another jurisdiction, and without any reference to the security afforded by such a statute, which could have no force where the indebtedness was incurred. There can be no pretence that a lien given by the laws of Missouri could be extended to a part of the same railroad which lies in another State, or that a sale of a railroad to enforce a lien arising under the laws of Missouri could embrace or affect the title to that portion of -the road lying outside the State ; and, this being the case, it exhibits the exercise of an unusual com- ity, to permit a contractor or laborer from another jurisdiction to avail himself of the lien given by the laws of one State for materials furnished or services performed in another. Under statutes which give mechanics and laborers a lien upon the "road " or " other struc- ture " and the land upon which it is constructed, for the labor or materials furnished in the construction or repair of the road, a lien cannot be claimed upon a street railway, because a street railway and a railroad are essentially different things {ante, § 1), and the land upon which it is constructed is the property not of the railway com- pany but of the city or of abutting owners.^ Sec. 289. Rolling-stock. — Unless the statute is expressly ex- tended to the rolling-stock and other movable property of the cor- poration, it is not embraced in the mechanic's lien, as it is held not to constitute a part of its real estate ; '^ and even where the statute 1 Front St. Cable R. Co. v. Johnson, 2 Rep. 124, this question as to the rolling. Wash. St. 115 ; 25 Pae. Rep. 1084. stock was considered, and the doctrine of Contra, St. Louis Bolt, &o. Co. v. Dona- the jtext sustained. Sbbvebs, J., speak- hue, 3 Mo. App. 559; this case, however, ing for the court, said : " The petition, it is poorlyjreported, and its correctness may will he observed, asks that the lien he well be questioned. But see Botsford v. established 'on the land and right of way.' ITew Haven, &c. R. Co., 41 Conn. 464. It also asked its establishment on the In Mcllvaine v. HestonviUe R. Co., 5 rolling-stock. This was done. If 'the Phila. (Pa.) 13, it is held that a stable rolling-stock was appurtenant to, and con- huilt hy a street railway company in which stituted a part of, the real estate, it was un- to keep its horses is subject to the lien of necessary to ask that the lien be established a mechanic for work done on the road. thereoji. We have then for determination ^ See post, § 466. In New Eng. Car the question, whether one who furnishes Springs Co. v. Bait. &c. R. Co., 11 Md. ties for the purpose of being used in the 81 ; 69 Am. Dec. 181, it was held that construction of a railroad can have a lien the word " machines " as used in the me- on the rolling-stock. If it is real estate, ohanic's lien statute would not embrace or constitutes a part of the, ' building, the cars or other rolling-stock used on a erection, or improvement,' he has such railroad. In the case of Neilson v. Iowa lien ; otherwise not. The land, road-bed, Eastern R. Co., 61 Iowa, 184 ; 33 Am. and right of way, and whatever is appur- 1182 MECHANIC S LIEN. [chap. XVI. is extended to that class of property, it does not, as in the case of the road-bed, etc., extend to all the rolling-stock, etc., of the road, so that tenant thereto, are real estate, and con- stitute the ' building, erection, or improve- ment ' contemplated by the statute. Is the rolling-stock appurtenant thereto in such sense as to make it a part of the real estate ? This question has been frequently mooted and largely discussed. It is said there is not an entire accord in the author- ities in reference thereto. It was consid- ered by this court in Davenport v. Miss. , &c. B. Co., 16 Iowa, 348, and Dubuque v. m. Cent. R. Co., 89 id. 66. In the first case Lowe, J. , seems to have been of the opinion that rolling-stock was a part of the road. The other justices expressed no Opinion on this point. In the last case Beck and Day, 33., expressed the opinion that the rolling-stock of such corporations was personal property. No opinion in relation thereto was expressed by the other justices, one of whom was on the bench when the first case was determined. The question is therefore an open one in this State. The leading cases in which it is said it has been determined that rolling- stock is real estate, to which our attention has been called, are, Pennook v. Coe, 23 How. (U. S.) 117 ; Gee o. Tide Water Canal Co., 24 id. 257 ; Minnesota Co. v. St. Paul Co., 2 Wall. (IT. S.) 609 ; E. Co. V. James, 6 Wall. (U. S.) 750; Scott v. C. & S. E. Co., 6 Bliss (U. S.), 529; Farmers' L. & T. Co. u. St. Jo. E. Co., 3 Dill. (XT. S,) 412 ; and Pierce v. Emery, 82 N. H. 485. No such question was determined in the case last cited. The only matter decided was as to the validity and effect of a mortgage on after-acquired property. This is evident from the subse- quent case of the Boston, &c. E. Co. v. Gilmore, 87 N. H. 410, which is an au- thority in favor of the proposition that rolling-stock is personal property, and our attention has not been called to a single decision of a State court holding differently. We are not prepared to say, however, there are none. It has been said : ' Engines and cars are no more appendages of a rail- road than are wagons and carriages of a highway. Both are equally essential to the enjoyment of the road ; neither ooii- stitnte a part of it.' State Treasurer v. Sommerville, &c. E. Co., 28 N. J. L. 21. There is much force in • the foregoing, because the instances are not unfrequent where one corporation owns the road and franchise, and another the Tolling-stodk. In the late case of Williamson v. New Jersey So. E. Co., 29 N. J. Eq. 311, a case we have not seen, the Court of Appeals of New Jersey is said, in an elaborate opin- ion, to have held that rolling-stock was personal property and not real estate. The cases above cited in the Federal Courts, it is said, were distinguished, as we think they well might be, on the ground, if no other, that in some of them the only question involved was as to the power to execute, and the effect and validity of mortgages as to after-acquired property. In one, rolling-stock had, by the statute of the State, under the laws of which the corporation existed, been declared to be a fixture, and in another the property in controversy consisted of the houses, lots, and locks of a canal company. It has been determined in the following cases, in addi- tion to those above cited, that rolling- stock is personal property. Randall v. Elwell, 52 N. Y. 521 ; 11 Am. Rep. 747 ; Hoyle V. Plattsburgh R. Co., 54 N. Y. 314 ; 13 Am. Eep. 595 ; Chicago, &c. E. Co. V. Fort Howard, 21 Wis. 45 ; Coe v. Columbus R. Co., 10 Ohio St. 372; 75 Am. Dec. 518; Meyer v. Johnston, 53 Ala. 287, 853. In Hoyle v, Plattsburgh E. Co., it is said the ' want of the element of localization in use is a controlling and conclusive reason why the character of realty should not be given to rolling-stock of a railroad,' and in this thought it must, we think, be admitted there is much force. How can it be said that a car belonging to a railroad in this State, when being pro- pelled through the State of New York at the rate of twenty miles an hour, is real property in this State ? The proposition to us seems absurd. In Ottumwa Woollen Mill Co. V. Hawley, 44 Iowa, 57 ; 24 Am. Rep. 719, we approved of the criterion adopted in Teaff J). Hewitt, 1 Ohio St. 611, 59 Am. Dec. 684, that in determining whether a given thing was real estate, 'the intention of the party making the SEC. 290.] LIEN IS ASSIGNABLE. 1183 the whole must be sold under the lien, but only to so much of it as is necessary to satisfy the lien.^ Sec. 290. Lien is assignable. — There is some conflict in the authorities as to the assignability of the mechanic's or laborer's lien, based partly upon the peculiar wording of the statutes and partly upon the difference in the views which the various courts have taken as to the character of the lien created by the statute. In .^ome jurisdictions the Hen is regarded as being. a personal privilege which is not assignable.^ But the better view seems to be that the original holder of the lien may transfer all his rights secured by it, and his assignee become entitled to all his privileges j^ though annexation to make a permanent accession to the freehold ' was a controlling consid- eration. Tested hy this rule rolling-stoek cannot be regarded as real estate. The intention may be ascertained by the use, and commoi}, and universal custom and usage. It is well known that the cars of one road are in constant use on other roads. It was never intended otherwise. The demands of commerce and trade require it. It was never intended they should be annexed permanently to the freehold. It may be safely assumed that all mortgages executed on railroads specially mention rolling-stock as being included. Why is this done if it was regarded as real estate, or as appurtenant thereto ? Why the labored efforts of counsel, sustained by the elaborate opinions of the highest court in the country, demonstrating that mort- gages executed by such corporations were liens on after-acquired rolling-stock, if the same was appurtenant to the realty ? About an afterward erected station-house there never was any doubt, because it is permanently annexed to the real estate, such being the intention. Not so, how- ever, as to rolling-stock ; hence the strain to prove it was covered by mortgages pre- viously executed. For the reason above stated, and because the decided weight of authority, as we believe, is in favor of the rule, we hold that rolling-stock is not real estate, and that the plaintiffs are not en- titled to the lien thereon." Compare Grand Trunk R. Co.'u. Eastern Counties Bank, 11 Lower Canada Jur. 11. 1 Enapp V. St. Louis, &c. R. Co., 74 Mo, 374; 7 Am. & Eng. R. Cas. 394, affirming 6 Mo. App. 205 ; Cranston v. Union Trust Co., 75 Mo. 29. ' Fitzgerald v. First Presbyterian Church, 1 Mich. N. P. 243 ; Buggies o. Walker, 34 Vt. 468 ; Cairo, &c. R Co. ». Fackney, 78 lU. 119 (not' assignable at law) ; Dana v, Mississippi, &c. R. Co., 27 Ark. 564. 8 Austin, &c. R. Co. v. Rucker, 59 Tex. 587 ; 12 Am. & Eng. R. Cas. 259 ; Davis V. Bilsland, 18 Wall. (U. S.) 659; Ritter v- Stevenson, 7 Cal. 388 (Uen as^ signable only in writing) ; Mason v. Ger» maine, 1 Mont. 203 ; Rogers v. Om.aha Jlotel Co., 4 Neb. 54, Tuttle v. Howe, 14 Minn. 145. In Midland R. Co. v. Wilcox, 122 Ind. 84 ; 23 N.E. Rep. 508, the court, speaking by Elliott, J., said : "We know that there is an apparent conflict in tjie authorities upon the question of the assignability of a mechanic's lien, but this conflict is caused principally by the fact that at common law choses in action were not assignable, although , in equity it is otherwise. The rule declared by the cases supported by the stronger reason is that such liens are assignable in equity, Major V. Collins, 11 111. App. 658 ; Friedman v. Roderich, 20 111. App. 622 ; Dixon v. Buell, 21 in. 203 ; Cairo, &o. R. Co. v. Fackney, 78 111. 116; Railroad Co. v. McCaughey, 62 Tex. 271 ; Railway Co. v. Daniels, 62 Tex. 70. As our statute adopts, and in truth enlarges, the equity rule, it must follow that such liens may be assigned. This is the i-uling of our court and it is right. Sinton v. The Roberts, 46 Ind. 476. The conclusion we have de> clared is supported by many other courts 1184 mechanic's lien. [chap. XVI. it is sometimes held that he can enforce it only in the name of hia assignor.^ Sec. 291. Party cannot have SuooesBive Liens, when. — A party can under an entire contract acquire but one lien ; ^ and the circum- stance that payments under the contract are due from time to time as the work progresses does not authorize the filing of successive liens.* Sec. 292. Rights of Lienor as against Mortgagees. — As against a mortgage executed before a mechanic's lien exists, the mortgage gen- erally takes precedence over the lien,* as the legislature has no power to impair the obligation of a valid contract or the lien of duly recorded encumbrances, or to authorize any act which will have that effect ; therefore, unless the lien law existed before the mortgage was executed, and the statute in express terms provides that such liens shall have priority over mortgages, and the road is, when the mortgage is executed, incomplete, so that the mortgagee is chargeable with notice that such liens may arise, the title of the mortgagees will be paramount ; ^ but where the road is incomplete when the mortgage in strongly reasoned opinions. Murphy u. Adams, 71 Me. 118 ; Tuttle v. Howe, 14 Minn. 145 ; Skyme v. Mining Co., 8 Not. 239 ; laege v. Bossieux, 15 Gratt. (Va.) 83 ; Kerr v. Moore, 54 Miss^ 286 ; Stryker w. Cassidy, 76 N. Y. 52. It is in close harmony with the general principle that a security is the incident of a debt and passes with the assignment of the debt to the assignee. Perry v. Roberts, 30 Ind. 244 ; Felton «. Smith, 84 Ind. 485, and authorities there cited, 495 ; Reeves v. Hayes, 95 Ind. 521 ; Day w. Bowman, 109 Ind. 363 ; Com. L. Ins. Co. w. Talbot, 113 Ind. 873. The doctrine which runs through all our cases is that the debt is the substantive thing, the security the shadow, and that the two are inseparable. Hough V. Osborne, 7 Ind. 140 ; Garrett v. Puckett, 15 Ind. 485 ; Hubbard v. Harri- son, 38 Ind. 323. We cannot regard the reasoning of some of the courts, which hold that the right to the lien is a purely personal privilege, as either valid or for- cible." Where the plaintiffs claims against the railroad company are based upon orders drawn by a subcontractor upon plaintiff in favor of a laborer, these orders cannot be considered as constituting an assignment to the plaintiff of the laborer's claim for the amount due him by the sub-contractor. Dudley v. Toledo, &c. R. Co., 65 Mich. 665 ; 30 Am. & Eng. R. Cas. 236. 1 Murphy o. Adams, 71 Me. 119 ; Pearsons v. Tinckner, 36 Me. 387 j Cald- well v. Lawrence, 10 Wis. 331. See also Rollins V. Cross, 45 N. Y. 766 ; Hubbell u. Schreyer, 14 Abb. Pr. n. b. (N. Y.) 284. In Nevada, however, it may be en- forced in the assignee's name. Skyme v. Occidental Mills, &c. Co., 8 Nev. 220. So in other States Tuttle v. Howe, 14 Minn. 145 ; 15 Am. & Eng. Ency. Law, 103 m. 2 Cox !). West. Pac. R. Co., 44 Cal. 18. -» Coxw. West. Pac. R. Co., 47 Cal. 87. * Coe V. N. J., &c. R Co., 31 N. J. Eq. 105; 6 Coe 0. N. J., &c. R. Co., 31 N. J. Eq. 105; Brooks w. Railway Co., 101 U. • S. 443 ; Toledo, &c. R. Co. v. Hamilton, 134 IT. S. 296. Where work has been done under a contract, upon a railroad, the company cannot by the execution of a mortgage, and a sale thereunder, defeat the lien, but as against such lien such mortgage and sale are void. Shamokin Valley, &c. R. Co. v. Malone, 85 Penn. St. 25. See also Fox v. Seal, 21 Wall. (TJ. S.) 424; Tommey v. Sparta naburgh, &c. R. Co., 7 Fed. Rep. 429 ; Tyrone, &c. E. Co. V. Jones, 79 Penn. St. 60 ; Meyer i>. Construction Co., 100 U. S. 457 ; 21 Am. Ry. Cas. 466. SEC. 292.] EIGHTS OF LIENOR AS AGAINST MORTGAGEES. 1185 is executed, the lien takes precedence over the mortgage.' But where the road is completed when the mortgage is executed, and the lien arises for making repairs thereon, or additions thereto, the mort- gage takes priority over the lien.^ And in the case last cited, it was also held that a prior mortgage will take precedence over a me- chanic's lien, when the improvements made by him form an integral part of the road.^ A mortgage executed before the corporation has acquired either the legal or equitable title to land does not take precedence over a lien in favor of a mechanic, arising for labor done upon such land, or materials furnished ajUr the execution of the mortgage, but before the corporation has acquired title to the land.* Thus, in the case last cited, a land-owner agreed with a railroad com- pany that he would give the land -for a depot and station upon the road, if the company would erect a building for the purpose upon' the land. The company agreed to do so, and employed the peti- tioner to do the mason-work thereon. He began work November 23, 1870, and finished January 17, 1871, and immediately thereafter filed a certificate of his lien. The company began to use the place as a station immediately after making the agreement with the land- owner and before the building was commenced, taking and deliver- ing passengers and freight there, and continued such use until the building was completed. No conveyance of the land was ever made by the owner. The company had previously, in May and 1 Meyer ». Hornby, 101 U. S. 728 ; party delivering rails to a railroad oom- Brooks V. Railway Co., 101 U. S. 443 ; pany has a lien which Is entitled to prior- Taylor t). Cedar Rapids, &o. R. Co., 4 Dill, ity over that acquired under a trust (U. S.) 570 ; Railroad Co. ■». Meyer, 100 created after the delivery of the rails hut U. S. 457 ; Farmers' L. & T. Co. v. before proceedings were instituted to en- Canada, &o. R. Co., 127 Ind. 250. Com- force the lien ; and this, although the con- pare Cent. Trust Co. w. Cameron Iron Co., tract provided that no lien should exist 47 Fed. Rep. 136 In Neilson o. Iowa until after the time for payment. Chicago, Eastern R. Co., 44 Iowa, 71, it was held &c. R. Co. v. Union Rolling Mills Co., 109 that a mechanic's lien for ties furnished to U. S. 703 ; 16 Am. & Eng. E, Cas. 626. a railroad attaches from the commencement See also Boston v. Chesapeake, &c. R. Co., of the building, and takes precedence over 76 Va. 180 ; 12 Am. & Eng. E. Cas. 263. a mortgage executed after that time, al- '' Bear v. Burlington, &c. E. Co., 48 though the particular work for which the Iowa, 619. See ■post^ Chap. XXIX. lien is claimed was not commenced until ' In Coe v. N. J. Midland R. Co., 31 after the execution of the mortgage. So N. J. Eq. 105, a depot-building was held, also it is held in Massachusetts that the as against a mechanic's lien, to be property lien takes priority over a mortgage exe- connected with the line of the railroad and cuted after the mechanic's contract was regarded as part of the mortgaged premises made, but before building was begun or under a mortgage prior to the lien, materials furnished. Carew «. Stubbs, * Botsford v. New Haven, &c. Ev Co., (Mass. 1892) 30 N. E. Rep. 219. And a 41 Conn. 454. 1186 mechanic's lien. [chap, xvi, June, 1869, made two mortgages of the entire franchise and prop- erty of the road, the mortgages providing in express terms that they were also to cover all lands and buildings that might afterwards be acquired by or belong to the company. It was held, upon a petition to foreclose the lien, that even if the mortgages could legally em- brace after-acquired property, which the court did not decide, yet the equitable title to the land in question did not vest in the com- pany until the condition on which they received the land was per- formed, by the completion of the building so that it could be conveniently used for thei purpose for which it was erected ; and that therefore the lien of the petitioner took precedence of the mortgage encumbrance. In Pennsylvania, under the joint resolution of 1843, the lien of a contractor, laborer, or workman upon the real or personal estate of a railroad company, for the construction, injprovement, or repair of the road, is unlimited in duration, and takes precedence over a mortgage or transfer of the road, executed stihseqKenUy to such lieh.^ But it is held that where, in a proceeding to foreclose the mort- gage, such lienors, etc., are made parties to the bill, and a decree is entered against them pro eonfesso, and the road and franchises are ordered to be sold discharged of all liens, such lienors cannot long afterwards assert their claims against the purchasers at such sale, but by their laches are estopped from so doing, although the resolu- tion referred to provides that a mortgage or transfer of the road, after such lien has attached, shall be deemed fraudulent, null, and void as against the persons in whos^ favor it arises. ^ As between several holders of mechanics' liens on the same struc- tures, the common-law rule prevails that qui prior est in tempore, potior est vnjwre. The rule of maritime law which allows a priority of lien to the last creditor furnishing supplies and repairs for the preservation of a vessel on a voyage has no application to liens for labor or materials furnished in the construction of a railroad.' Sec. 293. Essentials to Validity of the Lien. — The lien given to contractors, mechanics, laborers, etc., upon reaL estate, for labor done thereon, is purely statutory ; consequently, in order to be operative or available, it must not only come clearly within the provisions of 1 Fox V. Seal, 21 Wall. (U.S.) 424; Penn. St. 101; 3 Am. & Eng. R. Caa. Tyrone, &o.' R. Co. v. Jones, 79 Penn. St. 525. 60- ' Galvestoiv, &o. R. Co. v. Cowdrey, 11 a Woods V. Pittsburgh, &o. R. Co., 99 Wall. (U. S.) 459 ; Fox v. Seal, 22 Wall. (U. S.) 424 J post, Chap. XXIX. SBC. 293.] ESSENTIALS TO VAJ.IDITY OF THE LIEN. 1187 the statute, but all the measures required by the statute to be taken by the lienors in order to give it validity must be strictly takein. Furnishing materials or performing labor, etc., creates an incipient lien,^ but unless the necessary steps are taken to perfect it, it does not cling to the property, except for the period within which such steps must be taken. Thus, if notice is required to be given to the land-owner, or if the claim is required to be filed in a certain oiffice within a Certain time,^ the lien ceases to exist if such steps are n6t taken within the time specified. Thus, where notice of the lien is required to be given or filed within ninety days from the comple- tion of the- work, unless such notice is given or filed within that period, it is lost ; ^ and the notice must contain all the elements specified in the statute, as to the nature of the claim,* the de- scription of the property, its ownership, and all other matters.^ So, too, the method stated in the statute for the enforcement of the lien, and the time within which such proceedings must be com- 1 Boston V. Chesapeake, &c. R. Co., 76 Va. 180 ; 12 Am. & Eng. R. . Cas. 263 ; Delaware, &c. Co. v. Davenport, &c. R. Co., 46 Iowa, 406. 2 Boston V. Chesapeake, &e. R. Co., 76 Va. ISO; 12 Am. & Eng. R. Cas. 263. Under the Virginia statute the claim for the lien was required to be filed in every county in which the property sought to be subjected was located. It was therefore held that a claim filed only in the city of Richmond was insufficient where the con- tractors sought to subject the property of the entire road. Boston v. Chesapeake, &c. R. Co., 76 Va. 180 ; 12 Am. & Eng. R. Cas. 263. * Delaware R. Const. Co. v. Davenport, &c. R. Co., 46 Iowa), 406. * Lankey v. Wells, 16 Nev. 271 ; Holmes w. Richet, 56 Cal. 307 ; Shields v. Garrett, 12 Phila. (Penn.) 458. * Rugg V. Hoover, 28 Minn. 404 ; Wehr V. Shyneeck, 55 Md. 434 ; Newman ■V. Brown, 27 Kan. 117. A NewJersey statute provided: "In case of the insolvency of any corporation, the laborers in the employ thereof shall have a lien upon the assets thereof for the amount of wages due to them respectively, which shall be paid prior to any other debt or debts of said company ; and the word ' laborers ' shall be oonstrned to include all persons doing labor or service of whatever character, for or as workmen or employes in the regular employ of such corporation. " Construing this the court holds ; 1. That the lien so given comes into existence as of the date which the court adjudges to be the time when the insolvency occurred which gives it jurisdiction. 2. That per- sons holding claims for wages, who arenot in the employ of the corporation at the time when it becomes insolvent, are not within the policy of the act, and therefore have no lien upon the corporation assets. 3. That the presentation of a claim em- bracing other items than charges for wages does not work a, forfeiture of the right of lien. 4. That laborers in the employ of the corporation when it becomes insolvent have a lien upon its assets for the whole amount of wages due them respectively, no matter how long before the date of in- solvency the wages may have accrued. 5. That the acceptance of a promissory note, without security, does not operate as a waiver of the lien, unless an intention to relinquish such right is unmistakably manifested 6. That the lien for wages does not include interest which has accrued thereon before the lien attached; and 7. That the proving of a claim for a sum in excess of the amount really due does not work a forfeiture of the rignt of lien. Delaware, &c. R. Co. v. Oxford Iron Co., 33 N. J. Eq. 193. 1188 MECHANIC'S LIEN. [CHAP. XVl" menced must be strictly pursued.' Indeed, as the right and the remedy are both given by statute, the lienor must comply strictly with all the requirements of the statute, both to complete and effectuate the right.^ Seo. 294. Persons in whose Favor Lien may exist. — A lien upon a railroad for materials or labor can only arise in favor of such per- sons as the statute designates. In some of the States, it is extended to contractors, subcontractors, mechanics, laborers, and workmen. In the case of subcontractors, it is held that the statute giving a lien does not extend beyond him, and that a person furnishing materials for the road upon a contract with hintt has no lien against the railroad company or its property therefor.* In the case of subcontractors, if they intend to rely upon the responsibility of the corporation rather than upon that of the contractor, it is generally made necessary for them to notify the corporation thereof, so that it may protect itself by withholding payments which may become due to him from time to time under the contract ; and until such notice is given, he has no claim upon the corporation, either by way of lien or otherwise, for work done or materials furnished under his con- tract,* nor does his lien become complete, unless he fully complies with all the provisions of the statute ; ^ and if payments for the whole work have become due to the contractor and have been made by the corporation, before the work is completed, and before the subconr tractor has given notice as required by statute, he can have no claim upon the corporation, either by way of lien or otherwise, for the amount due him from the contractor.^ 1 Delaware, &o. Co. v. Davenport, &o. within the act. Hart's Appeal, 96 Penn. i R. Co., 46 Iowa, 406; Lounsbury v. St. 335 ; 11 Am. & Eng. E. Gas. 618. But Iowa, &c. R. Co., 49 Iowa, 255 ; Cranston under the Kansas statute granting a me- V. Union Trust Co., 75 Mo. 29. chanic's lien, proof that the railroad com- 2 See the general subject of procedure pany paid a bridge builder for work done examined in 15 Am. & Eng. Ency. Law, on one of its bridges upon estimates made article " Mechanic's Lien," pp. 1 et sej./ by one of its agents as the work pro- Phillips on Mechanics' Liens. gressed is sufficient to show that such ' Cairo, &c. R. Co. v. 'Watgon, 85 111. bridge builder is a "contractor" within 531 ; Smith Bridge Co. v. Louisville, &c. the statute. Atchison, &c. R. Co. v. Mo- R, Co., 72 111. 506; Blatzerw. Raleigh, &c. Connell, 25 Kan. 370. R. Co., 115 U. S. 634 ; 24 Am. & Eng. R. * Cairo, &o. R. Co. o. Couble 85 111. Cas. 354. One who had contracted to 555. furnish 5,000 ties for the construction of a 6 Cairo, &c. R. Co. v. Couble, 4 Brad, road is said not to be a "contractor" (111. App.) 133. within the meaning of the Pennsylvania « Rowland v. CentrevUle, &o. R. Co., statute giving a special remedy ; nor are 61 Iowa, 380 ; 11 Am. & Eng. E. Cas. 47. the agents and employes of such .person SEC. 295.] MECHANICS, LABORERS, WOEKMBN, ETC. 1189 Sec. 295. Mechanics, Laborers, Workmen, Servants, etc., who are. — There is considerable conflict in the cases, as to who are mechanics, laborers, servants, etc., within the meaning of these statutes con- ferring the lien. In a Canada case,^ under a statute which provides that every "mechanic, machinist, builder, miner, laborer, w other ^person doing work upon or furnishing materials to be used in the construction of any building shall have a lien or charge for the price of the work," it was held that an architect who designs or superin- ' tends the Work comes within its provisions. " It was contended," said Proudfit, V. C, " that the act only contemplated persons who applied manual labor on, or furnished materials to be used in, a building in course of construction; that an architect did neither, and that the phrase other person must be construed person of the same character as those mentioned specifically in the section. The duties of architect in preparing elevations, working-plans, speci- fications, superintending the construction of the building according to the plans, and seeing that proper materials are used, etc., are essential things to be done in the construction of the work ; and the architect seems to me, if not comprehended under the designation of builder, to come under that of other person." In New York,^ New Jersey,* Louisiana,* and Minnesota,^ a similar doctrine, and upon the same grounds, was held. But in Pennsylvania,® under a statute similar to the New York statute, it is held that an architect is a " mechanic " within the meaning of the term as employed in the statute, and that as such he is entitled to a lien upon a building or other struct- ure, the plans for which are drawn by him, or the construction of which he superintends. " The contract in this case," say the court, "denominates the plaintiff an architect. That he was at the same time a mechanic is evident from the requirement not only to draw the plans of the work to be d6ne, but the duty of explaining and directing its proper execution. This is work often done by the master-mechanic, and is as essential to the due construction of a building as is the purely mechanical part ; for without it, shape, symmetry, and proportion would be wanting, — elements, not of beauty alone but of strength and convenience in every super- 1 Arnolfli v. Gouin, 22 Grant Ch. 314. in Alabama. Hughes v. Forgeson (Ala. 2 Stryker v. Cassidy, 76 N. Y. 50. 1892), 11 So. Eep. 209 (under a statute giv- ' Mutual Benefit Life Ins. Co. v. Kow- ing lien to- "any person who has done land, 26 N. J. Eq. 389. labor or work upon the building."). * Mulligan v. Mulligan, 18 La. An 20. * Bank of Pennsylvania v. Gries, 35 « Knight V. Non-is, 13 Minn. 475. So Penn. St. 423. , 1190 mechanic's lien. [chap. XVI. structure. To preserve these elements some architectural skill is required, but is generally exercised, in ordinary buildings, by a mere mechanic by occupation. This would certainly not impair his right to a lien as such mechanic. A raere naked architect, who may be such without being an operative mechanic, who draws plans in anticipation of building usually to enable the builder to determine what kind he will erect, could hardly be supposed to be within the act which provides a lien for work ' done for or about the erection or construction of the building.' But very distinguishable from this is the case of a party employed to devote his^ entire time to a building, and who draws the plans for every part of the work, and directs its execution according to such plans and specifications. This is labor — mechanical labor of a high order — contributing its proportionate value to the beauty, strength, and convenience of the edifice. Why is not this to be^ considered as meritorious as mere manual labor •with the tools of a trade ? Both are necessary to the accomplishment of the end in view, and both were necessary, or were deemed so to be in this case, to the progress of the building, and in and about its construction." ^ But in Missouri ^ and Kentucky,^ the doctrine of the Pennsylvania cases is questioned, and it is held that an architect is not entitled to a lien for drawing plans for, or superintending the construction of, a building, under a statute giving a lien to a " mechanic, workman, laborer," etc., upon the ground that he is not within the defined classes of persons. In Montana * a similar rule was adopted under a similar statute, as to a person who was employed by a corporation at a monthly salary to superintend the erection of buildings and the working of mines. It seems to us, however, that the doctrine of the New York and Pennsylvania cases, before cited, expresses the better rule, and that the services of an architect in designing, or of a person superintending the construction of a building, comes clearly within the spirit of the statute, which, after enumerating the particular classes of persons for whose benefit the statute was intended, con- ' In Ames v. Dyer, 41 Me. 397, it waa or the class of labor done by him in de- held that a person who draws plans for a signing the ship. ship has no lien upon the ship therefor ; ' Reeder v, Bensbury, 6 Mo. App. 445 ; but this is upon the ground that the stat- see also Blakeley v. Blakeley, 27 Mo. App. ute only gives a lien thereon to " any ship- 39. carpenter, caulker, blacksmith, joiner, or ' Foushee ». Grigsby, 1 2 Bush (Ky.), 76. other person who shall perform labor or • Smallhouse v. Kentucky, &c. Co., 2 furnish materials for or on account of any Mont. 443. ship," and does not include an architect, SEC. 295.] MECHANICS, LABOREKS, -WOEKMEN, ETC. 1191 tains another sweeping and comprehensive clause," or other person who performs any labor or furnishes materials for any building," etc., even though he is not to be treated as a " mechanic " in the ordinary sense of the term. But the Tennessee Supreme Court has recently held in view of all the authorities that an architect is not entitled to the lien unless it is expressly so provided.^ Where a claim for a lien is filed iby a subcontractor or a person who had furnished materials for a building, it is a proper practice to make the contractor, as well as the owner of the building, a defend- ant in the suit, so that the court may adjust all the equities between the parties. But if the contractor is a necessary party, his omission must be objected to by deiiiurrer or answer ; otherwise, the objection is waived.^ A mortgagee cannot, where the lienor (a subcontractor) has complied with the statute, object to the validity of the lien, on the ground that he did not present to the company a statement of his claim certified by the contractor to be just, after a judgment establishing his lien has been rendered, in proceedings to which the contractor and the company were parties.' Under statutes giving "laborers'' upon railroads, engaged in their construction, a right of action against the corporation, or a lien upon the railroad therefor, it is sometimes an important and vexed question, who come under that head. Webster, in his dictionary, defines a laborer as being " one who labors in a toilsome occupation; a man who does work that requires little skill, as distinguished from an artisan ;" and under his definition of " labor" he includes "intel- lectual exertion, mental exertion ; " so that it appears that a person may perform "labor " without being a "laborer " within the ordinary meaning of the term. In a Pennsylvania case,* this distinction was adopted, the court holding that a civil engineer was neither a " lar borer nor workman " within the meaning of those terms as used in a mechanic's lien law. " Ordinarily," say the court, " these words cannot be understood as embracing the learned professions, but rather such as gain their livelihood by manual toil. When we speak of the laboring or working classes, we certainly do not intend to include therein , persons like civil engineers, the value of whose services rests rather in their scientific than in their physical ability. > Thompson v. Baxter (Tenn. 1893), ? Brooks v. Railway Co., 101 U. S. 443. 21 S. W. Rep. 668. * Pennsylvania, &c. R. Co. v. Leuffer, 2 Carney v. Lacrosse, &o. R. Co., 15 84 Penn. St. 168 ; Peck v. Russ, 55 Wis. Wis. 503. - 465 ; 10 Am. & Eng. R. Cas. 642. 1192 mechanic's lien, [chap. xvi. We thereby intend those who are engaged, not in head, but in hand, work, and who depend upon such hand work for their living. Wor- cester defines a laborer to be ' one who labors ; one regularly em- ployed at some hard work ; a workman ; an operative ; often used of one who gets a livelihood at some coarse, manual labor, as dis- tinguished from an artisan or professional man.' In like manner, a workman is defined as 'one who works;' one employed in any labor, especially ' manual labor.' " " It is true, in one sense, the engineer is a laborer ; but so is the lawyer and doctor, the banker and corporation officer, yet no statistician has ever been known to include these among the laboring classes." Neither a contractor nor a subcontractor is regarded as being included in the term " laborer ; " ^ and in New York ^ a consulting- engineer was held not to be a " laborer or operative " within the mean- ing of those terms as employed in a statute giving to those classes special advantages for the recovery of their wages. But under the Iowa statute which provides for a lien in favor of any " person engaged in the construction of a railway " under contract with the company, it is held that a subcontractor is entitled to the lien.* In Indiana the statute expressly provides for subcontractors, but it is considered that a day laborer employed by a contractor constructing a part of the road, and a man who furnishes materials to the same contractor,* are neither subcontractors within the statute. Many of the statutes pro- vide specifically for the lien of the contractor and of subcontractors.^ 1 Chicago, &o. R. Co. v. Sturgia, 44 person or company owning the railroad, and Mich. 538; Martini). Mich. &c. R. Co., does not extend to subcontractors ' who 62 Mich. 458. The Georgia statute of procure the work to be done on their 1869 provided that " mechanics and labor- own account, though in pursuance of ers" should have a lien "for work done a contract between themselves and the or materials furnished in certain specified primary contractors. Carter v. Rome, &c. cases. It was held that a contractor or Const. Co., 89 6a. 158 ; 15 S. E. Bep. 88. subcontractor was not included by the ^ Erricson v. Brown, 38 Barb. 340. terms used. Savannah, &e. R. Co. v. ' Vaughn v. Smith, 58 Iowa, 553 ; 7 Callahan, 49 Ga. 506 ; 56 Ga. 332. Under Am. & Eng. R. Cas. 82. the Florida statute giving a lien in favor of * Farmers' L. & T. Co. v. Canada, &o. every person who shall " perform labor" E. Co., 127 Ind. 250 ;'47 Am. & Eng. R. on a railroad, no lien can be awarded to a Cas. 271. contractor employed in the constniction of ' Where a construction contract for the a road for damages sustained by him from building of a railroad was set aside, at the a breach of the contract by the railroad Instance of the railroad company, as being company. St. Johns, &c. E. Co. v. Bar- ultra vires, with an allowance of compen- tola, 28 Fla. 82. In Georgia it is held sation to the contractor for work actually that the lien given by Ga. Code, § 1979 performed by him, he has, for the sum so to "contractors to build railroads," is con- allowed, a contractor's lien under the fined to those contractors employed by the Pennsylvania statute ; and this lien takes SEC. 295.] MECHANICS, LABOKEKS, WORKMEl?, ETC. 1193 In Nevada ^ a " foreman " or " boss " of mining hands was held to be a " laborer or person performing labor/' within the mechanic's lien law. But it will be observed that this doctrine does not conflict with the previous cases, but comes clearly within tbe definition given by Webster. In Missouri,^ Montana,^ and Kentucky,^ a per- son employed to superintend the construction of a building is held not to be a " laborer or workman'" within the meaning of those terms as used in a mechanic's lien law. Thus it will be seen that the true test by which to determine whether a person is a " laborer " or " workman," so as to be entitled to the advantages of statutes giving liens to those classes, or special remedies agaihst the corporation, preference over the claim preferred by ad- verse counsel for services rendered to the company in litigation with the contractor. Newcastle Ey. Co. v. Simpson, 86 Fed. Eep. 133. 1 Gapron v. Stout, 11 Nev. 304.' In New York, under the provision of § 18 of the Act of 1848, authorizing the promotion of corporations for manufacturing, mining, mechanical, etc., purposes, which makes the stockholders " liable for all debts that may be due and owing to their laborers, servants, and apprentices for services per- formed for such corporation," it is held that a person described, as the bookkeeper and general manager of the company, and who kept an account of all the receipts and disbursements of the company, and in the absence of, the siiperintendent had the charge and control of its business, and was employed at a yearly salary of $1,200, is not a servant or a laborer, — Danfokth, J., saying: "The clause in (Question, creates a privileged class into which none but the humblest employes are admitted. The services referred to are menial or manual services. He who performs themi_ must be of a class whose niembers usually look to the reward of a day's labor or ser- vice for immediate or present support, from whom the company do not expect credit, and to whom its future ability to pay is of no consequence, — one who is responsible for no independent action, but who does a day's work or a stated job under the direc- tion of a superior. Gordon v. Jennings, 9 Q. B. Div. 45 ; Dean v. De Wolf, 18 Hnn (N. Y.), 186, affirmed, 82 N. Y. 626. Blackstone speaks of stewards, VOL. II. — 25 factors, and bailiffs as perhaps constituting a class of servants ; but this doubtingly, ' because they serve in a superior minis- terial capacity ; ' and in view of the declara- tions already made by this court as to the object of the statute, — Coffin v. Reynolds, 37 N. Y. 640 ; Gurney v. Alantic, &o. K. Co., 68 N. Y. 367 ; Aiken «. WaSsan, 24 N. Y. 482 ; Stryker v. Cassidy, 76 N. Y. 53 ; 32 Am. Eep. 262, — it may be added that as such individuals occupy positions and are usually of such capacity as enables them to look out for them- selves, they are not within T;he privilege of the statute.. According to the rule that when two or more words of anal- ogous meaning are coupled together they are understood to be used in their cognate sense, express the same relations, and give color and expression to each other, the word 'servant,' though general, must be limited by the more specific ones, ' laborer ' and ' apprentice,' with which it is associ- ated, and be held to comprehend only per- sons performing the same kind of service tliat is due from the others. A general manager is not ejusdemi generis with an apprentice or laborer." Wakefield v. Fargo, 90 N. Y. 213. See Sandiman v. Breach, 7 B. & C. 96 ; Hex v. Cle^orth, 4 B. & S. 927 ; Kitchen v. Shaw, 6 A. & E. 729 ; Barnard ». Pennick, 7 B. & C. 536 ; Williams v. Golding, L. R. 1 C. P. 69; Smith v. People, 47 N. Y. 337; Hovey v. Ten Brock^ 3 Eob. (N. Y.) 316. 2 Blakely v. Blakely, 27 Mo. App. 39. ' Smallhouse v. Kentucky, &o. Co., 2 Mont. 443. * FousheewGrigsby, 12Bush(Ky.),'75. 1194 mechanic's lien. [chap. xvi. where they are employed by contractors, etc., depends upon the cir- cumstance whether they are employed to perform manual labor requiring but little skill, or not.^ One who is in the employ of a contractor with the company merely as a timekeeper and a superin- tendent is not a " laborer." ^ Nor is one a "laborer" who merely contracts for and furnishes the labor of others^ or of teams, whether with or without his own services.* Sec. 295 a. Material Men. — The statutes generally provide that the lien shall exist in favor of persons who furnish material used in the construction of the road or its appurtenances ; and upon proof that the statutory requisites as to notice have been complied with, the courts are inclined to a liberal construction in favor of the holder of the lien.* But the material must have been actually furnished and used in the construction of the road, and material dealers can- not claim a lien for material furnished by them to a subcontractor to be used in the erection of boarding-houses for men, and stables for horses employed in building the road.^ 1 Under the Iowa statute a day laborer ^ Missouri, &o. E. Co. w. Baker, 14 is entitled to the lien, though he is merely Kan. 563 ; Missouri, &o. H. Co. v. Brown, an employ^ of the subcontractor. Mor- 14 Kan. 557. nan v. Carroll, 85 Iowa, 26. See also in ' Balch v. New York, &c. R. Co., 46 this connection Teifiplin v. Chicago, &c. E. N. Y. 521. Co., 73lowa, 548; 34 Am. & Eng. E. Cas., * The Minnesota statute provides a 107 (where company sells the road and lien for laborers or material men, etc., who enters into a contract .with third party construct a railroad "within this State." for construction, such third party has no Under this it is not necessary that the lien as against the purchasers unless he is material man should have furnished the a subcontractor) ; feters v. St. Louis, material within the State. Thompson v. *o. E. Co., 24 Mo. 586 ; Delaware, &o. St. Paul, &o. R. Co., 45 Minn. 13 ; Mal- E. Co. V. Oxford Iron Co., 33 N. J. Eq. lory », Lacrosse, &c. Co., 80 Wis. 170. 192 ; 1 Am. & Eng. E. Cas. 205, 211 n. ; ^ Stewart Lumber Co. v. Missouri Pac. Austin, &o. R. Co. v. Euoker, 59 Tex. E. Co., 83 Neb. 29, overruling 28 Neb. 587 ; 12 Am. & Eng. R. Cas. 258 ; 89, and following Dudley v. Toledo, &c. Mundt V. Sheboygan, &c. E. Co., 31 Wis. R. Co., 65 Mich. 655. The Nebraska 451 (statute is remedial, and therefore statute in this case provided a lien where to be construed liberally) j Cambria parties have furnished labor or materials Iron Co. V. Laclede, &e. Co., 36 Fed. in the construction, repair, and equipment Eep. 420 (lien superior to that of a general of a railroad, creditor who attaches after wages fall due. SEC. 296.] eidODS AND PASSENGEES. 1195 CHAPTER XVII. Railways as Carriers of Passengers: Duties of. Sec. 296. Distinction tetween Duties of Carriers of Goods and of 297. Obligation to receive and carry. 297 o. Who are Carriers of Passengers. 298. How afid when' tKb Relation of 299: 300. 301. 302. 303. 304. 305. 306. ger arises. liuties as to Construction and Repair of Roadway. Care required in relation, to En- gines, Cars, &c. Ordinary Care, Reason able Care, &c. : Relative' Obligations of Carriers and Passengers. Degree of Care required from Jiailway Companies. Injuries resulting from Pa:ssen- ger putting himself in a Dan- gerous Position. Riding in Baggage Car, Engine, Freight Car, &c. Duty as to stopping of Trains for Passengers to alight. Invitation to alight. ^EC. 307. fnjuriesreceived ingettingupon a train.- 308. Acco^mniodations'; Contributory Negligence. 309.. Same subject : Seats in Car. 310. Duty as to Stations. i310 a. Further as to Injuries at Stai- tions. 31 1 . False' Announoemenf of Arriv&l of Trains. 312. Overshooting Stations, &c. 313. Liability for delay in running Trains. 31*. Duty to protect Piissengers from Assault by Stt'angers. 315. Liability for Wilfiil Injury to Passeager by its Servants. 316. Bu'le as to ABsa,ults, &c., upon ifrespassers, &c. 317i Damages for Injuries to Pas- sengers. 318. Injuries received on Sunday. 318a. Sick or Intoxicated Passen- gers. SeO. 296. Distinction between Duties of Carriers of Goods and of Passengers. — As the business of carrying passengers has been of rapid growth, so has the department of the law relating thereto been of rapid development. The first case in which damages for an injury to a passenger were recovered, was tried only at the close of the last century.^ In that case a passenger by a stage-coach, having been injured by the negligence of the carrier, brought his action for damages, and Lord Kenyon, in passing upon the question, said that ' White V. Boulton, Peake's Cas. 81. The rule relative to this class of carriers in this country has been held to be that a stage-coach proprietor is bound to furnish good coSchesi gentle and well-broken horses, and a prudent and skilful driver, and that a recovery may be had for an in- jury resulting from any fault in this re- spect. Ingalls V. Bills, 9 Met (Mass.) 1; 43 Am. Dec. 346; MeKinney w. Mill, 1 McLean (U. S.), 540; Sales v. Westerii Stage Co., 4 Iowa, 547 ; Farrish v. Reigle, 11 Gratt. (Va.) 697 ; Peck>. Neil, 3 Mc- Lean (U. S.), 22 ; MeLane v. Sharp, 2i Harr. (Del.) 481. 1196 EAILWAYS AS CAEBIEES OF PASSENGERS. [CHAP. XVII. "where the proprietors of stage-coaches " carry passengers, they are bound to carry them safely and properly." This statement of tli3 duty of carriers of passengers, while it does not express their exact duty as now held, nevertheless recognizes the distinction which exists between the liability of common carriers of passengers and common carriers of goods. Indeed, the duty in the two cases differs widely, and for obvious reasons. Goods are inanimate and without intelligence, and cannot of themselves exercise any care or caution with a view to their own safety ; while persons can exercise such caution so far as their conveyance is concerned. Goods are liable to be stolen, broken, or destroyed if not cared for by the carrier ; while persons are not liable to be stolen, and it is presumed will exer- cise care and caution to prevent injury to themselves as far as pos- sible. The intelligence and volition of persons carried makes such a material difference in all possible calculations, that it precludes the carrier from assuming the duties pf an insurer in regard to them. If the law imposed any such duty upon them, the result would almost certainly be, either the refusal of carriers to undertake passenger traffic, or to raise the rates to a sum adequate to meet the relation, or to provide by special contract in eyery case precisely what their liability shall be. But the law has imposed no such onerous burden upon them.^ " There is a wide distinction," says Parke, J. ,2 " be- tween contracts for the conveyance of passengers, and those for the conveyance of goods. In the latter case the parties are liable at all events, except the goods be destroyed or damaged by the act of God or the King's enemies ; while in the former case they are only respon- sible to their passengers in case of express negligence." ' Their lia- bility may be said not to be " a constant quantity," but varies with thQ persons carried and the circumstances of each case,* and they are only liable for actual or culpable negligence. 1 Aston V. Heaven, 2 Esp. 533 ; Ben- « See also per Sir James Mansuield in nett V. Peninsular Steamboat Co., 6 C. B. Christie v. Griggs, 2 Camp. 79. 775; Sharp v. Grey, 9 Bing. 460; Pen- * Johnson v. Winona, &c. R. Co., 11 dletpn, &c. R. Co. v. Shires, 18 Ohio Minn. 296 ; 88 Am. Dec. 83 ; Stokes v. St. 255 ; Feital v. Middlesex R. Co., Saltonstall, 13 Pet. (U. S. 150 ; Brock- 109 Mass. 398 ; 12 Am. Eep. 720 ; Knight way v. Lasala, 1 Edw. (N. Y.) 135 ; V, Portland, &c. R. Co., 56 Me. 234 ; 96 Fuller v. Nangatuok R. Co., 21 Conn. Am. Dec. 449 ; Caldwell v. N. J. Steam- 563 ; Hall v. Conn. River R. Co., 13 boat Co., 47 N. Y. 282 Munroe v. Leach, Conn, 326 ; Maverick v. Eighth Ave. R. 7 Met. (Mass.) 274 ; Mier v. Penn. R. Co., 36 N. Y. 378 ; Boyoe v. Anderson, 2 Co., 64 Penn. St. 825. Pet. (U. S.) 150. " In Croft V. Waterhouse, 11 Moore, 138 ; 8 Bing. 319. SEO. 296.] GOODS AND PASSENGERS. 1197 From the , nature of things a carrier cannot be held to insure the safety of his passengers. One who undertakes to travel by water or by land, by coach or by rail, must assume all risks which are neces- sary incidents of transportation, and which do, not result as a proxi- mate consequence-of the carrier's neglect of duty. The only guaranty he can require is that his carrier shall exercise the utmost diligence and care in the construction and operation of its road and its ma- chinery and vehicles, and in the selection and superintendence of its servants, in order to secure safe transportation.^ In this connection it may be well to observe the character of the liability of railway companies as carriers of passengers. -It is not, correct to say that this liability is oontractural, or that it arises wholly out of the contract of carriage. The duty to carry safely is imposed hy law, and exists independently of the contract. And any failure properly to discharge this duty is a tort for which recovery may be had if it causes injury. It is true that the contract or agreement of carriage, express or implied, is essential to create' the relation of passenger and carrier, and to that extent the liability is dependent on bonttact. But when the relation is once created, the duty to carry safely, whether -pi^ovjded for by the contract or not, is imposed by law, and any breach of it is a ground for an action ex delicto to the injured' passenger. A passenger, therefore, when injured through the negli- gence of his carrier, may sue either in contract or tort, though the latter action is preferable because of the more narrow rule as to the measure of damages applied in the former.^ 1 Cleveland v. New Jersey Steamboat R. Co. v. Burke, 13 Wend. (N. Y.) 611 ; Co., 68 N. Y. 306 ; 89 N. Y. 627 ; 125 Redhead v. Midland Ry. Co., L. R. 2 Q. N. Y. 299 ; MeKinney v. Neil, 1 Mc- B. 412 ; 4 Q. B. 379. Lean (U. S.), 540; Chicago, &o. B. Co. ^ Seewe v. Northern, Pac. R. Co. V. Trotter, 60 Miss. 442; 61 Miss.' 417 ; (Minn.), 52 Am. & Eng. R. Cas. 348 ; Skinner ». Atchison, &o. R. Co.,. 39 Fed. Lake Erie, &c. B. Co. v. Acres, 108 Ind. Rep. 188 ; San Antonio, &c. R. Co. v. 548 ; 28 Am. & Eng. R. Cas. 112 ; New Robinson, 79 Tex. 608. That carriers of Orleans, &c. E. Co. v. Hurst, 36 Miss, passengers are not insurers of the safety of 667-668 ; Cincinnati, &c. R. Co. v. Eaton, their passengers, but are liable only for 94 Ind. 474; 18 Am. & Eng. R. Cas. 254 ; injuries resulting from its negligence, is a Creign v. Brooklyn, &c. R. Co., 7.') N. Y. proposition now so well settled that au- 192 ; Murdock v. Boston, &c. R. Co., Jhorities for it are not needed. Reference 133 Mass. 15; Nevin v. Pullman Palace may be made, however, to Gilson v. Jack- Car Co., 106 111. 222 ; 11 Am. &-Eng. R. son County, &c. R. Co., 76 Mo. 282; 12 Cas. 92; 46 Am. Rep. 688 ; Baltimore, Am. & Eng. Ev Cas. 132 ; Dougherty v. &c. E. Co. v. Kemp, 61 Md. 619 ; 18 Am. Missouri Eiver R. Co., 81 Mo. 325 ; 21 & Eng. E. Cas. ,233. In Webber v. Her- Am. & Eng. E. Cas. 497; Renneker v. kimer, &c. R. Co., 109 N. Y. 311, it South Carolina R. Co., 20 S. C. 219 ; 18 was held that the liability of a carrier of Am. & Eng. E. Cas. 149 ; Camden, &c. passengers injured in consequence of some 1198 RAILWAYS AS CAERIBRS OF PASSENGERS. [CHAP. XVII. Sec. .297. Obligation to receive and carry, -r- Common carriers of passengers who hold themselves out as swch are bound to receive all who require passage, so long as they have room for them and there is no sufficient legal excuse for refusing.^ They have no right to re- fuse to carry persons because of race or color, or without goqd cause.^ They may establish reasonable rules for carrying on the business, subject to which only, any person may claim the right to be carried.* Whether or not any particular regulation is reasonable depends not only upon its intrinsic character but upon the circumstances in which it is attempted to be enforced. There are some authorities, therefore, which hold that the question of reasonableness in this connection is one for the jury.* But it is believed that this is not the better doc- trine ; authplrity and principle are both strongly in favor of thp rule defect in the vehicle is based solely upon negligence; and the three years' liifSita- tion fixed by the statute for the bringing of "an action to recover dfimages for a per- sonal injury resulting from negligence " applies. See this subject discussed more at lengthj post; § 301. If the action were based simply on the contract of carriage, the company might set up the defence that such contract was ultra vires. Yet, it i? well understood that even though the coptract was ultra vires the company's powers, that fact does not affect the company's liability. Central E. & B. Go. V. Smith, 76 Ala. 573. 1 Bennett v. Dutton, 10 N. H. 481 ; Thomj)spn on Carr. of Pass. 1 ; ' Turner v. North Beach, &o. E, Co., 84 Cal. 594 j Lake Erie, &c. R. Co. v. Acres, 108 Ind. 548; 28 Am. &,Eng. R. Cas. 112; Hous- ton, &q. E. Co. V. Band (Tex. 1882) 9 Am. & Eng. R. Cas. 399 ; H?,nuibal, &c. E. Co. V. Swift, 12 Vail. (U. S.) 263; Saltonstall V. Stokes, 13 Pet. (U. S.) 181; Pleasant v. North Beach, &c. R. Co., 84 Cal. 586 ; Tarbell v. Central Pacific B. Co., 34 Cal. 616. See also Bretherton p. Wood, 3 B. & B. 54. 2 Indianapolis, &c. R. Co. v. Ilinard, 46 Ind. 293 ; West Chester, &c. E. Co. v. Miles, 55 Penn. St. 209; 93 Am. Dec. 744 ; Sanford v. Catawissa, &c. E. Co., 2 Phila. (Penn.) 107 ; Ds,y v. Owen, 5 Mich. 520. * Chicago, &c. E. Co. v. Williams, 55 111. 185 ; Gray v. Cincinnati Southern E. Co., 11 Fed. Bep. 683 ; Com. ■». Power, 7 Met. (Mass.) 596; 41 Am. Dec. 472; Abel V. Delaware, &c. Canal Co., 103 N. Y. 581 ; Chicago, &c. E. Co. n. People, 56 111. 365; 9 Am. Bep. 690. But a rule or, regulation cannot be enforced when its .effect is to impair the obligation of the contract existing between the railroad company tmd the State. Attorney-General V. Fitchburg R. Co., 142 Mass. 40; 26 Am. & Eng. R. Cas. 64. It is no evidence of the waiver of any rule that the employes of the company were accustomed to act in disregard of it, unless the offic'er charged with its enforce- ment was aware of such custom. O'Neill V. Keokuk, &c. B. Co., 45 Ipwa, 546; Prince v. International, &c. R. Co., 64 Tex. 144 ; 21 Am. & Eng. R. Cas. 152 ; Hobbs V. Texas, &c. R. Co., 49 Tex. 357 ; 34 Am. & Eng. R. Cas. 268 ; 19 Am. & Eng. Ency. Law, p. 822. Compare Britton V. Atiantic, &c. E. Co., 88 N. C. 536 ; 18 Am. * Eng. R. Cas. 391. A regulation is eminently reasonable, which requires that passengers shall not stand on the platform, or get on or off the train while it is in motion. Alabama, &c. R. Co. v. Hawk, 72 Ala. 112; 18 Am. & Eng. R., Cas. 195 ; Wills v. Lynn, &c. R. Co.,' 129 Mass. 35 ; 2 Am. & Eng. E. Cas. 27. * Brown u., Memphis, &c. E. Co., 4 Fed. Bep. 37; Com. v. Power, 7 Met. (Mass.) 696 ; 41 Am. Dee. 472 n- ! 2 Am. & Eng. Ency. Law, p^ 759. SEC. 297.] OBLIGATIONS TO RECEIVE AND CABBY. 1199 that such a question is one for the court. Under any other view of the rule there could be no uniformity in the conclusions reached ; one jury might declare a regulation unreasonable and ^ succeeding one immediately declare it to be reasonable. Moreover, it is not always possible that juries can be made aware of the reasons which call for the regulation. The weight of authority, therefore, decidedly favors the rule that it is for the court to determine the reasonableness of any regulation.^ Instances of proper regulations might be multi- plied. Thus carriers, may have separate cars for ladies/ and separate cars for colored people,^ and may enforce them in a reasonable be the subject of sound regulation. The reasonableness of such regulation cannot be well questioned in view of the fact that it tends^ to secured order, to promote the comfort of all, and preserve arid main- tain the rights of both the carrier and its passengers. And this doctrine has been adhered to ever since. But .in every -instance there must be no unjust dis- crimination, and accommodations' equally good must be furnished to all classes. Ex parte Plessy, 45 La. An. — ; 11 So. Eep. 948 ; Chilton o. St. Louis, &c. R. Co. (Mo. 1893), 21 S. "W. Eep. .457; Day V. Owfen, 5 Mich. 520 ; Britton v. Atlantic, &c. E. Co., 88 N. C. 536; 18 Am. & Eng. E. Cas. 391 ; Gaines i». Mc- Candless, 4 Phila. (Penn.) 265 ; Chesa- peake, &c. E. Co. V. Wells, 85 Tenn. 613; 31 Am. & Eng. E. Cas. Ill ; Heard i;. Georgia, &o. E. Co., 1 Interst. Com. Com. Eep. 428; Green v.' Bridgfeton (U. S. C. Ct. 1879), 9 Cent. L. J. 206 ; Civil Eights Bill, 1 Hughes (U. S.), 541; Murphy v. Western, &c. E. Co., 23 Fed. Eep. 637 ; 21 Am. & Eng. R. Cas. 258 ; Logwood V. Memphis, &c. R. Co., 23 Fed. Eep. 318 ; 21 Am. & Eng. E. Cas. 256 ; McGrimm v. Forbes, 37 Fed. Eep. 639 ; Houck V. Southern Pac. R. Co., 38 Fed. Eep. 226 ; Hutchinson on Carr., § 542. Contra Coger v. Northwest, &c. Packet Co., 37 lovia, 145. And compare also Chicago, &c. E. Co. v, Williams, 55 111. 185 ; 8 Am. Eep. 641 ; Gray v. Cincin- nati Southern E. Co., 11 Fed. Eep. 683 ; 6 Am. & Eng. E. Cas. 587. In some jurisdictions there are statutes which pro- hibit the enforcement of snch a regulation, and where these exist, the carrier has, of course, no right to insist upon it. Central 1 Louisville, &c. E. Co. v. Fleming, 14 Lea (Tenn.), 128; 18 Am. & Eng. R. Cas. 356 ; Smith v. Wabash, '&c. E. Co., 92 Mo. 359 ; 81 Am. & Eng. R. Cas. 331 ; South Florida E. Co. v. Ehoads, 25 Fla. 40.; 37' Am. & Eng. E. Cas. 100; Vedder V. Fellows, 20 N. Y. 127 ; Illinois Cent. E. Co. V. Whittemore, 43 111. 42,0 ; 19 Am. & Eng. Ency. Law, pp. 640 et seq. So, also, the construction and interpreta- tion of the rules and regulations adopted is for the court and not the jury. Smith V. Wabash, &c. E. Co., 92 Mo. 359. " These regulations usually provide for a separate oar from which all men are to be excluded, except those travelling with ladies as -their escorts ; there is no question as to their validity. Peck v. New York, &o. R-. Co., 70 N. Y. 587 ; Memphis, &c. E. Co. ». Benson, 85 Tenn. 627, 31 Am. & Eng. E. Oas. 112 ; Bass V. Chicago, &c. E'. Co., 36 Wis. 450 ; 17 Am. Eep. 495 ; 39 Wis. 636 ; 42 Wis. 654. But where - passenger being unable to find a seat elsewhere enters the ladies car without objection, he is lawfully there and not a trespasser, and he cannot be forcibly removed until a seat is offered him elsewhere. Bass v. Chicagd, &c. E. Co., 36 Wis. 450 ; 39 Wis. 636 ; 42 Wis. 654 ; 17 Am. Eep. 495 ; Lake Shore, &c. E. Co. V. Rosenzweig, 113 Penn. St. 519 ; 26 Am. & Eng. R. Cas. 489. ' Separate Accommodation for White and Colored Races. — The doctrine was first laid down in the case of West Chester, &c. E. Co. v. Miles, 55 Penn. St. 209; 93 Am. Dec. 744, that there is such a natural, legal, and customary difference between the white and colored races that their separation in public conveyances may 1200 RAILWAYS AS CAEEIEES OF PASSENGERS. [OHAP. XVII. manner, provided in doing so they are guilty of no unjust discrimi- nation. So they may run through or express trains, stopping only at such stations as they indicate in their time-tables; and they are not bound to receive passengers upon their trains for stations at which the train is not advertised to stop.i Nor are they bound to receive a drunken person,^ or gamblers who seek to board the train to ply their vocation,' and the same rule would doubtless apply to known , pickpockets, sneak thieves, train robbers, etc. Neither are they bound to carry a person who is fleeing from justice, or one whose conduct is riotous or disorderly, or who is known to be a dangerous character, or a maniac, or whose person or clothing is in such a filthy, or disgusting condition as to make his presence in the car obnoxious to other passengers, or who is affected with a contagious disease, or is infested with vermin,* or is intoxicated to such an ex- tent as to render it probable that he would be disgusting, disagree- R, Co. V. Green, 86 Penn. St. 421 ; Wash- ingtdh, &c. B. Co. v. Brown, 17 Wall. (U. S. ) 450. But in other States statutes exist, which reqnire carriers to make and to enforce such a regulation ; and while such a statute is void in so far as it at- tempts to interfere with interstate com- merce (Hall ». De Cuir, 95 U. S. 485), there is no question that it is constitu- tional and valid as regards passengers travelling between points within the same State. Louisville, &c. R. Co. v. State, 6ij Miss. 662, affirmed in 133 U. S. 687 ; 41 Am. & Eng. E. Cas. 46 ; ex parte Plessy, 45 La. An. — . See Arkansas Acts (1891), ch. 17, p. 15,; Louisiana Acts (1890), no. Ill, p. 152 ; Tennessee Acts (1891), ch. 52, p. 135. See also De Cuir v. Benson, 27 La. An. 1 ; Miller v. Steamboat Co., 12 N. y. Supp. 301. ■1 Atchison, &o. R. Oo. v. Gants, 88 Kan. 608 ; 34 Am. & Eng. B. Cas. 290 j Pennsylvania E. Co. w. Wentz, 37 Ohio St. 333 ; 3 Am. & Eng. B. Cas. 478. The company is not bound by the conductor's agreement to let a passsenger off at a sta- tion at which its published regulations do not allow the train to stop. Ohio, &c. R. Co. V. Hatton, 60 Ind, 12; Pitts- burgh, &c. R. Co. V. Nuziim, 60 Ind. 633. But a regulation by a company, having five passenger stations within the limits of a city, that tickets shall he sold ouly to the station which forms the terminus of the road, and that baggage shall be checked only to that station, although the other stations are regular stopping-places for passenger trains, is unreasonable and void as a matter of law, although it was made to prevent the transfer of passengers and baggage to a rival line. Pittsburgh, &c. , R. Co. V. Lyon, 123 Penn. St. 140 ; 37 Am. & Eng. R. Cas. 231. 2 Vinton v. Middlesex R. Co., 11 Allen (Mass.), 304 ; 87 Am. Dec. 714. ' Thurston v. Union Pacific E. Co., 4 Dill. (U. S.) 821. In this ease the court held that it was a question for the jury whether from the passenger's pre- vious conrse on its trains, the company had good reason for supposing that -such was his purpose in a given instance. Prob- ably in cases of this kind a railway com- pany would not be justified in refusing to carry the passenger upon a mere suspicion that such was the passenger's intent, nor upon the other hand, merely because the person had the reputation of being a gam- bler. It must, in order to justify its re- fusal to carry, be able to show good grounds for inferring that the person was not only a gambler, bnt also that he in- tended to ply his vocation on the train. * Walsh V. Chicago, &c. R. Co., 42 Wis. 23 ; 24 Am, Rep. 876 ; Paddock v. Atchison, &c. R. Co., 87 Fed. Rep. 841. SEC. 297.] OBLIGATIONS TO EECEIVB AND OAKEY. 1201 able, or annoying to the passengers. But slight intoxication, such as would not seriously affect the conduct of the passenger, will not justify the company in refusing to receive and carry him.^ Neither are they generally bound to take a passenger when their cars are already fuU.'^ But if a person has purchased a- ticket to go by a certain train, under a stipulation of the company that it Will run trains at certain times and in a certain nianner, "or good for this dajr only," they cannot excuse themselves from carrying him upon the ground that they have no room. Nor if they hav6 sold tickets to passengers good only upon a certain train, can they rely upon this excuse. In such cases they are bound to have room for all the pas- sengers to whom tickets have been sold for the trip.^ If their cars are full, and they continue to take more passengers than they can reasonably provide for, without notice to them of their inability to provide for them, they are under all the obligations usually due to such passengers.* It has been held that they are not bound to carry a passenger whose ostensible purpose is to injure their business, — as, a person who is soliciting traffic for a rival line.^ But having accepted the fare of a person -whom it might not be obliged to carry, and received him on board its train or other passenger vehicles, al- though ignorant at the time of the passenger's identity, it cannot, if he properly demeans himself as a passenger, expel him therefrom upon discovering his identity. Thus, in a case in the United States ' Pittsburgh, &c. R. Co. v. Vandyne, mont line. It was held, that if the jury 57 Ind. .576. should he of opinion that the above con- ^ Jencks v. Coleman, 2 Suran. (TJ. S.) tra,ct was reasonable and bond fide, and 221. not entered into for the purpose of an op- ' Hawcroft v. Great Northern Ey. Co., presiiive monopolj', and that the exclusion 16 Jur. 196. of the plaintiff was a reasonable regula- . * Evansville, &c. _E. Co. n. Duncan, 28 tion in order to carry this Contract intb Ind, 444 ; 92 Am. Dec. 322 ; Thompson's effect, the proprietors of the steamboat Carriers of Passengers, 29. would be justified in refusing to take the * In Jencks v. Coleman, 2 Snmn. plaintiff on board. It is also held , that (U. S. ) 221, the plaintiff was the known a regulation is not unreasonable which agent of the Tremont line of stage- requires that passengers shall not drum coaches ; the proprietors of the steam- for custom for hotels whije on the train. boat " Benjamin Franklin " had, as he well Texas, &c. R. Co. v. Pearle (Tex. 1885), knew, entered into a contract with the 26 Am. & Eng. R. Cas. 195' n. ' But a Citizens' Stage-Coach Company to carry regulation which prohibits passengers from passengers between Boston and Providence' wearing the uniform cap of a rival com- in connection with and to meet the steam- pany while on the train, is unreasonable,, boats. The plaintiff had been in the and cannot be enforced. South Florida, habit of coming on board the steamboat R. Co. v. Rhodes, 25 Fla. 40 ; 27 Am. & at Providence and Newport for the pur- Eng. R. Cas. 100." pose of soliciting passengers for the Tre- 1202 RAILWAYS AS CAEEIEE8 OF PASSENGERS. [CHAP. XVII. Supreme Court,^ the libellant was expelled from the city of San Francisco by a Vigilance Committee, and was forcibly put on board an outgoing steamer and landed at the Mexican port of Acapulco. With the determination of retutning to San Francisco in defiance of the Vigilance Committee, he got on board a steamer destined for that port, of which the respondent was master. After the steamer had put to sea, his identity and the fact of his expulsion from San Francisco were discovered, and the respondent, with a view of pre- venting him from returning to San Francisco, believing that he would be killed by the Vigilance Committee if he returned, put him on board another steamer, which again landed him at Acapulco. It was held that, having been permitted to go upon the respondent's vessel without objection, and having tendered his fare and otherwise demeaned himself properly, the respondent could not lawfully refuse to carry him, and that he was entitled to recover damages, although it seems, that the respondent might have refused to receive him on board the ship before it sailed. Davis, J., said : '' If there are reason- able objections to a proposed passenger, the carrier is not required to take him. In this case, Duane could have been well refused a pas- sage when he first came on board the boat, if the circumstances of his banishment would, in the opinion of the master, have tended to promote further difficulty should he be returned to a city where lawless violence was supreme. But this refusal should have preceded the sailing of the ship. After the ship had got to sea it was too late to take exceptions to the character of a passenger, or to his peculiar position, provided he violated no inflexible rule of the boat in getting on board. This was not done ; and the defence that Duane was a ' stowaway,' and therefore subject to expulsion at any time, is a mere pretence ; for the evidence is clear that he made no attempt to secrete himself until advised of his intended transfer to the ' Sonora.' Al- though a railroad or steamboat company can properly refuse to trans- port a drunken or insane man, or one whose character is bad, they cannot expel him after having admitted him as a passenger and re- ceived his fare, unless he misbehaves during the journey .^ Duane conducted himself properly on the boat until his expulsion was de- 1 Pearson v. Duane, 4 Wall. • (U. S.) one is expelled because he is a gambler, 60S. there must be reasonable ground forappre- " Coffin V. Brathwaite, 8 Jur. 876. It bending that he proposes to ply his voca- is doubtful if a carrier can refuse to trans- tion upon the passage. Thurston v. Union port a person as stated by Davis, J., aim- PaciHo R. Co., 4 Dill. (U. S.) 821. ply because his " character is bad." If SBO. 297.] OBLIGATIONS TO EBCEIVE AND CABKY. 1203 tprmined, and when his fare was tendered to the purser he was en- titled to the same rights as other passengers. The refusal to carry him was contrary to law, although the reason for it was a humane one. The apprehended danger mitigates the act, but. affords no legal justification for it." It being a recognized rule of law that carriers have power to make and enforce reasonable rules and regulations concerning the conduct of their business, passengers and other persons who avail themselves of the accommodations offered by such carriers must inform them- selves, of the regulations and observe them.^ But the regulations must be so published that aU persons who are to pe affected by them, whether passengers or servants, can easily become informed of their existence and requirements ; for no one can be bound by a "rule or regulation of the existence or character of which he had no means or opportunity of informing himself.^ Tiere is no conclusive presump- tion that a passenger is informed of the regulations of the company, and the maxim ignorantia legis neminem exeusat cannot be invoked in such a ease.* Power to make rules and regulations carries with it authority to enforce them by proper means ; the company may therefore exjael from its premises those who refuse compliaraee with its regulations, "Hiough this right Tcmst in every instance be exercised with due regard to the safety of the expelled.* This subject, however, is pursued in a subsequent chapter. 1 Louiaville, .&o. E. Co. .v. Fleming, 14 173 ; Fay i). Minneapolis, &c. B. Co., 30 Lea (Tenn.), 128 ; Ig Am. & Eng. R. Gas. Mina. 231 ; 11 Am. & Eng. E. Cas. 193 ; 348 ; Alabama, &c. E. Co. v. Hawk, 7^ Burlington, &c. E. Co. v. Rose, 11 Neb. Ala. 112 ; 18 Am. & Eng. K. Cas. 195 177 ; Lake Shore, &e. E. Co. v. Brown, (passenger riding on platform of car in 123 111. 162 ; 3,1 Am. & Eng. E. Oas.^ei ; violation of regulation) ; l.ittle Eock. &e. JlgGee «. Missouri Pac. E. Co., 92 Mo.. ,E. Co. v.. Miles, 40 Ark. 298 ; 13 Am. & 208 ; 38 Am. & Eng. E. Oas. 1 ; Penn- ing. R. Cas. 10 ; Abend o.. Terre Haute, sylvania R. Co. v. Spicker, 105 Penn. St. &e. E. Co., Ill 111. 202 ; 17 Am. & Eng. 142 ; 23 Am. & Eng. E. Chs. 672; Trot- R. Cas. 614 (passenger riding in baggage- linger v. East Tenn., &c. E. Co., 11 Lea car in violation of regulation ) ; MoEae ». (Tenn.), 533; 13 Am. & Eng. E. Cas. Wilmington, «jc. E. Co., 88 N. C. ,526 ;• 549. 18 Am. & Eng. R. Cas. 316. There can ' Lake Shor^ &c. II. Co. v. Rosenz- be no recovery where the injury was ocoa- weig, 113 Penn. St. 519 ; 26 Am. & Eng. sioned by the passenger's failure to .obtain E. Cas. 489. ■the knowledge of, and to act upon, the * Tarbell v. Central Pacific R. Co., 34 .established usage, custom, and :regulatit)ng Cal. 616 ; Landrigan ,w. State, 31 Ark. 50 ; of the company. .Southepij jR. Ca. oe, 35 Am. Eep. 547 ; Harri.s o. Stevens, 31 Kendrick, 40 Miss. 374. • Vt. 79 ; 73 Am. Dec. 337 ; post. Chapter 2 St. Joseph, ^e. R. Co. v. Wheeler, XXI. 35 K^n. 185 ; 26 Am. & Eng. E. Oas. 1204 EAIL-WAYS AS CAERIBRS OP PASSENGERS. [CHAP. XVII. Sec. 297 a. who are Carriers of Passengers. — That railroad companies are ordinarily common carriers of passengers is admitted, and as to whether other persons or companies occupy that status is not important here. But the question arises in some cases as to whether the company against which an action has been brought for a negligent discharge of its duty is, in law, a common carrier of pas- sengers under the peculiar circumstances involved in the particular, case. In aii early case in Tennessee,^ the court held that an instruc- tion was proper which told the jury in substance that " a common carrier of passengers is one who undertakes for hire to carry all per- sons indifferently who may apply for passage, and that to constitute one such a carrier, it was necessary that he should hold himself out as such ; a party having the conveniences for carrying persons may, in some or perhaps in many cases, carry passengers for hire, when done at the instance of the passengers and for their accommodation, without incurring the responsibilities ' of common carriers." The Supreme Court in approving this statement of the rule went on to apply the distinction between private and common carriers of persons, holding that the former are " to be held accountable lender rules mucli ; less stringent.^ The definition of a common carrier as above stated in the instruction of the court appears to be that generally accepted.* 1 Nashville, &o. E. Co v. Messlno, 1 private carriers for hire. As such carriers, Sneed (Tenn.), 220. In this case it ap- having only a construction train, they peared that " freight and passengers were were not under the same obligations and received and carried for pay regularly and responsibilities which attach, to common without refusal;" but the company had not carriers of passengers by railway. . . . solicited passengers nor given any public All that plaintiff could exact from' them notice that they would be carried, its road under these circumstances was the exer- being in an unfinished state. cise of such care and skill in the man- 2 In a somewhat similar case before the agement and running of the trains as Supreme Court of the'United States, itap- prudent and cautious men, experienced in peared that the defendants were contrac- that business, are accustomed to use under tors for the construction of a road, and similar circumstances." Shoemaker v. were running a construction train to trans- Kingsbury, 12 Wall. (U. S.) '369. port material for the road. The train was A railroad does not become a carrier of not adapted for passenger traffic, and de- passengers on its freight trains by reason fendants did not desire such traffic, though of the fact that it occasionally carries pas- it did not expel, persons who got on the sengers upon them as a matter of accommo- train to ride, and often, though not regu- dation, although fare ia charged, any more larly, collected fare from them. The than it becomes a carrier of goods by its plaintiff asked to be carried, and defend- passenger trains from occasionally carrying ants consented and accepted his fare. In goods for hire on them for accommodation, the course of the journey the train collided Murch v. Concord, &c. R. Co., 29 N. H. with an ox on the track, and as a result of 9 ; 61 Am. Dec. 631 ; Elkins w. Boston, the collision plaintiff was injured. The &o. R. Co., 23 N. H. 27,5. court held that defendants were " simply, » See Hutchinson on Carriers (2d ed.), SBC. 298.] EELATION OF PASSENGER, ETC. 1205 Sec. 298. How and when the Relation of Passenger arises. — It is not always easy to determine when the relation of passenger begins, but it would seem from the cases that it is not necessary that a contract for the passage should have been actually made on the fare actually paid, in ordefr to create the relation, but it is necessar'H that a person should he 'under the control of the carrier, in order to be entitled to his care as such. Therefore a person cannot be regarded as a passenger, who is not upon the premises of the carrier. But a person who goes into the station with the bond fide intention of becoming a passenger is entitled to the care and the rights of a pas- senger, at least so far as the safety of his person from defects in the station, platforms, etc., is concerned.^ But until a person is upon the carrier's premisesj or otherwise directly under his control, with the bond fide intention of becoming a passenger, he is not entitled to the rights of such.^ Not only must there be bond fide intention of becoming a passenger, but also a purpose to comply with- the rules of the company as to the payment of fare, or otherwise con- summating the contract which entitles him to carriage. While a person who rides free by the permission of the company or its agents is a passenger,^ yet a person who secretes himself upon the carrier!s vehicle with the intent of " stealing " a passage, being there fraudulently and without the carrier's assent, is not a passenger; nor'is onewho openly and knowingly takes his place in the cars with the purpose of travelling upon a forged ticket or a pass fraudu-. leutly obtained.* So where one enters a car which he knows is not §47, 538; Thompson on Carr. of Pass. p. 26; 18 Am. Rep. 360; Rose d. Des Moines AVood's Browne on Carrieps, §§ 40 et seq. Valley K. Co., 39 Iowa, 246. It is held See also Piedmont Mfg. Co. ». Columbia, in New Jersey that where a person rides &c. R. Co., 19 S. C. 353 ; 16 Am, & Eng. free upon a railway train nnder a contract K. Cas.,194; Schloss v. Wood, 11 Col., that in consideration of such free pas- 287 ; 35 Am. & Eng. R. Cas. 492. , sage he will assume all risks of accident, he 1 Gordon v. Grand Street,' &e. R. Co., cannot recover for an injury resulting 40 Barb. (N. Y. ) 546. The purchase of from an accident ; but there are strong the ticket and the entry by passenger on objections to this doctrine, both upon prin- the premises or accommodations of the ciple and npon grounds of public policy, company, creates the relation of passenger . * In Chicago, &c. R. Co. v. Michiej 83 and carrier with all the right, duties, and 111. 427, it was held that a railway corn- obligations which attend that relation, pany is not liable for an injury to .a per- Wabash, &c. K. Oo. v. Rector, 104 111. son who is riding by stealth on the engine 296 ; 9 Am. & Eng. R. Cas. 264. . in violation of the rules of the company . 2 Allendar v. Chicago, &c. K. Co., 37 known to him, even though with the per- lowa, 264. mission of the engineer. The conductor » Todd V. Old Colony R. Co., 3 Allen upon a train is the only train-hand who (Mass.), 18 ; 80 Am. Dec. 49 ; Jacobus v. can bind the company by his assent to a St.. Paul, &c. R, Co., 20 Minn. 125 ; person riding free. One who boards a 1206 EAILWATS AS OABEIBRS OF PASSENGERS. [CHAP. XVII. provided for the transportation but is devoted to other purposes, e. g., the mail service,* and he is there without the knowledge of the company and in a place where the employes of the train would not ordinarily discover him, he is not a passenger, although he was there in good faith and intended to pay fare ; the company, therefore, owed him no duty of safe transportation.^ In an Illinois case,* the true rule in such cases was adopted. In that case it was held that where a person fraudulently induces an agent of the company to disregard his duty, and permit him to ride free, he cannot recover for an injury sustained while so riding, received in consequence of the mere neg- ligence of the company ; in other words, that a person under such circumstances is not a passenger in the strict legal sense of the word. In a Missouri case," a drover obtained a pass for his wife, by fraudu- lently representing that she was the owner of part of the stock. The conductor refused to honor the pass, and she refusing to pay her fare, he put her off the train, without incivility or undue force ; and it was held that she was not a passenger, and that no recovery could be had for her expulsion from the train under those circumstances. So, too, a person riding upon a pass issued to another person, which is not transferable, is not a passenger, unless the conductor knows freight train in the car yard, having pur- to he a shipper and rides on the car with- chased no ticket, is not a passenger, and out the company's consent is not a pas- cannot recover for an injury not wilful, senger, and, if injured, cannot recover Haase v, Oregon, &c. E. Co., 19 Oreg. 854; unless he can prove the injury was wilful. 44 Am. & Eng. R. Cas. 860. But if the Snyder v. Natchez B., &c. Co., 42 La. passenger boards a train with a worthless An. 802 ; 44 Am. & Eng-, R. Cas. 278. pass, hut which he believes to be good, he In this case the court also held that there is a passenger until the conductor has in- is no presumption that one who is on a formed hiip of his error and he refuses to train is a passenger. Where the evidence pay other fare. Buss v. The War Eagle, is conflicting as to whether a person was a 14 Iowa, 863; Robostelli v. New York, passenger or a trespasser, it is error to with- &e. E. Co., 83 Fed. Bep. 796 ; 84 Am. & draw the question from the jury. Chicago, Eng. B. Cas. 619. See also Great Northern &c. E. Co. v. Mehlsack, 131 111. 61 ; 41 B. Co. V. Harrison, 10 Exch. 876. Am. & Eng, R. Cas. 60. » Biicker v, Caldwell, 182 Penn. St. 1 ; a Toledo, &c. R. Co. v. Brooks, 81 111. 40 Am, & Eng, E, Cas. 688 ; Gardner v. 245, So where a boy jumps on a train in- New Haven, &c. R. Co,, 51 Conn. 148 ; tending to ride a short distance without 18 Am. & Eng. B. Cas. 170. "A pae- paying fare, he is not a passenger. Muel- senger," said the court, in the former of hausen v. St. Louis E, Co., 91 Mo. 882; these case?, " in the legal sense of the 28 Am. & Eng. E. Cas. 157. Compare St, word, is one who travels in some public Joseph, &o, R. Co. v. Wheeler, 36 Kan. conveyance, by virtue of a contract, express 185; 26 Am, & Eng. B. Cas, 178 (boy or implied, with the carrier, on the pay- held to be lawfully on construction train, ment of fare or that which is accepted as though there in defiance of orders), an eqiiivalent therefor, Pennsylvania B. a Brown v. Missouri, &o. B, Co., 64 Co. V, Prince, 96 Penn, St. 256) Whar- Mo. 688. ton on Neg,, § 354." One who pretendis SBC. 298.] RELATION OP PASSBNGEB, ETC. 1207 that he is not the person named therein, and assents to the substitu- tion.^ So where a person having a pass which contains certain conditions with which the passenger refuses to comply, — as, where there is an indorsement upon the back of it which he is required to sign, but refuses when called upon by the qonductor, — he thereupon ceases to be a passenger, if the conductor so elects, and refusing to pay his fare may be ejected from the ttain.^ But where a person rides free at the invitation of an agent of the carrier, although the agent has violated his duty by inviting him, yet, if there is no collu- sion on his part with the agent to defraud the company, he is not deprived of his rights or remedies as a passenger as to injuries received through the negligence of the company.^ In all cases » Toledo, &c. R. Co. t-.Beggs, 85 111 80. 2 Elliott V. Western, &c. E. Co., 58 Ga. 4S4. 8 Wilton V. Middlesex R. Co., 107 Mass. 108 i 9 Am. Rep. 11 ; Pittsburgh, &o. R. Co. V. Caldwell, 74 Penn. St. 421 ; Washburn e. Nashville, &c. R. Co., 3 Head (Tenn.), 638 ; Dewire v. Boston, &c. R. Co., 148 Mass. 343 ; 87 Am. & Eng. R. Ca«.- 67. A . railroad company owes the duty of care in respect to its manner of operating the train, and may be liable to one riding on a freight train without pay- ing fare, by permission of the conductor of the train, for injriry from negligence in operating the train, even though the con- ductor had no authority to permit such person to ride. The obligation of a com- mon carrier to the exercise of caise exists not alone when imposed by contract; and a recovery for injury to one being trans- ported, caused by the negligence of the carrier, is not confined to cases of the breach of contract. . Undoubtedly, in the ordinary carriage of passengers, there is a contract, express or implied, involving the obligation as a matter of contract to carry safely, and any negligence causing injury to the passenger is a breach of the contract, and gives a right of action upon it. But the same act of negligence which would constitute a breach of contract obligations in the case of the passenger may also be a breach of the duty imposed upon all pas- sengers by the law, upon grounds of pub- lic policy, and give a right of action in tort to one injured thereby, if he be not barred of a recovery by his own wrong. It is not, therefore, important that the plain- tiff did not take passage as an ordinary passenger, or ths^t he paid no fare, — Jacobus V. St. Paul, &c. R. Co., 20 Minn. 125 ; 18 Am. Rep. 360, — nor whether the plaintiff stood in the proper relation to the defendant of a passenger toward whom it owed the peculiar duty which grows out of such relation. Dick- son, J., in Creed v. Penn. R. Co., 86 Penn. St. 189 ; 27 Am. Rep. 693 ; Seoord v.'St. Paul, &e. R. Co., 18 Fed. Rep. 221; Lucas V. Milwaukee, &c. E. Co., 33 Wis. 41; Wilton w. Middlesex R. Co., 107 Mass. 108; 9 Am. Rep. 11,,; Gradin v. St. Paul, &c. R. Co., 30 Minn." 217 ; 11 Am. & Eng. R. Cas: 644.. But where one travels on a freight train in violation of the company's known ' rules and regulations and of the conductor's orders, he is a trespasser, although invited to get on by a brakeman. Gulf, &c. R. Co. V. Campbell, 76 Tex. 174 ; 41 Am. & Eng R. Cas. 100. The same is true though the trespasser had the engineer's' permission. Chicago, &c. R, Cd. v. Michie, 83 111. 427. A baggage-master has no authority to permit persons to ride in his ear, and his' permission so to ride does not create the relation of carrier and pas- senger. Reary ». Louisville, &c. Ri Co., 40 La. An. 32 ; 34 Am. & Eng. K. Gas. 277. Whether one who rides on the engine by direction of the company's ser- vant is a passenger is sand to be a question for the jury. Lake Shore, &c. R. Co. v. Brown, 123 111. 162 j 31 Am. & Eng. R. Cas. 61. 1208 KAILWAYS AS OAKRIBES OF PASSENGERS. [CHAP. XVII. where the company is required by law to carry a person free,^ or where he is riding free by the consent of the company fairly ^ &btained, he is a passenger, and entitled to all rights and privileges as such.2 In thp case of a free pass, the carrier is under the same 1 Austin V. Gt. Western Ey. Co., L. E. 2 Q. B. 42. 2 Todd V. Old Colony R. Co., 3, Allen (Mass.), 18; 80 Am. Dec. 149. In Phila- delphia E. Co. V. Derby, 14 How. {U.S.) 468, the plaintiff was riding at the invita- tion of the president. In this case the plaintiff below was himself the president of another railroad company, and a stock- holder in this. He was on the road of de- fendant by invitation of the president of the company, not in the usual passenger- cars, but in a small locomotive-car used for the convenience of the officers of the com- pany, and paid no fare for his transporta- tion. The injury to his person was caused "by coming into collision with a lo'cbmotive and tender, in the charge of an agent or servant of the company, which was on the same track and moving in an opposite ' direction. Another agent of the company, in tU exercise of proper care and caution, had given orders to keep this track clear. The driver of the colliding engine acted in disobedience and disregard of these orders, and thus caused the collision. The' in- structions given by the court below at the instance of the plaintiff, as well as those req^uested by the defendants and refused by the court, taken together, involve but two distinct points, which are in substance as follows: 1. The court instructed the jury that if the plaintiff was lawfully on the road at ihe time of the collision, and the collision and consequent injury to him were caused by the gross negligence of one of the servants of the defendants, then and there employed on the road, he is entitled to recover, notwithstanding the circum- stances given in evidence, and relied upon by defendants' counsel as forming a de- fence to the action, to wit: that the plain- tiff was a stockholder in the company, riding by invitation of the president, pay- ing no fare, and not in the usual passen- ger-cars, etc. 2. That the fact that the engineer having the control of the collid- ing locomotive was forbidden to run on that track at the time, and had acted in disobedience of such orders, was not a de- fence to the action. Geiek, J., said : "In support of the objections to the first in- struction, it is alleged that 'no cause of action can arise to any person by reason of the occurrence of an unintentional injury, while he is receiving or partaking of any of those acts of kindness which spring from mere social relations; and that as there was no contract between the parties ex- press or implied, the law would raise no duty as between them for the neglect of which an action can be sustained.' ,In support of these positions, the cases be- tween innkeeper and guest have been cited such as 1 Rolle's Abridgment, 3, where it is said, ' If a host invite one to supper, and the night being far spent he invites him to stay all night, and the guest be robbed, yet the host shall not be chargeable, be- cause the guest was not a traveller ; ' and Calye's Case, 8 Coke, 63, to the same effect, showing that the peculiar liability of an innkeeper arises from the considera- tion paid for his entertainment of travel- lers, and does not exist in the case of gratuitous lodging of friends or guests. The case of Farwell v. Boston, &c. R. Co., 4 Met. (Mass.) 49; 38 Am. Dec. 839, has also been cited, showing that the master is not liable for any injury received by one of his servants in consequence of the care- lessness of another while both are engaged in the same service. But we are of opinion that these cases have no application to the present. The liability of the defendants below for the negligent and injurious act of their servant is not necessarily founded on any contract of privity between the parties, not affected by any relation, social or otherwise, which they bore to each other. It is true, a traveller by stage- coach or other public conveyance who is injured by the negligence of the driver has an action against the owner, founded on his contract to carry him saf6ly. But the maxim of respondeat superior, which by legal imputation makes the master liable for the acts of his servant, is wholly irre- SEC. 298.] KELATION OF PASSENGER, ETC. 1209 obligations as to care arid vigilance as he is to a passenger for hire ; and as to passengers to whom passes are given ■which are predicated upon any consideration, he cannot absolve himself from liability for spective of any contract, express or im- plied, or any other relation between the injured party and the. master. If one he lawfully on the street or highway, and another's servant carelessly drives a stage or carriage against him and injures his property or person, it is no answer to au action against the master for such injury, either that the plaintiff' was riding for pleasure, .or that he was a stockholder in the road, or that he had not paid his toll, or that he was the guest of the defendant, or riding in a carriage borrowed from him, or that the defendant was the friend, bene- factor, or brother of the plaintifif. These arguments, arising from the social or do- mestic relations of life, may in some cases successfully appeal to the feelings of the plaintiff, but will usually have little effect where the defendant is a corporation, which is itself incapable of such relations or the reciprocation of such feelings. In this view of the case, if the plaintiff was lawfully on the road at the time of the col- lision, the court were right in instructing the jury that none of the antecedent cir- cumstances, or accidents of bis situation, could affect his right to recover. It is a fact peculiar to this case that the defend- ants, who are liable for the act of their servant coming down the road, are also the carriers who were conveying the plain- tiff up the road, and that their servants immediately engaged in transporting the plaintiff were not guilty of any negligence, or in fault for the collision. But we would not have it inferred from what has been said that the circumstances alleged iii the first point would affect the case, if the negligence which caused the injury had been committed by the agents of the com- pany who were in the immediate care of the engine and car in which the plain- tiff rode, and he was compelled to rely on these counts of his declaration founded on the duty of the defendant to carry him safely. This duty does not result alone from the consideration paid for the service. It is imposed by the law, even where the service is gratuitous. 'The confidence VOL. II. — 26 induced by undertaking any service for another is a sufEcient legal consideration to create a duty in the performance of it.' See Coggs v. Bernard, and cases cited in 1 Smith's Ld. Cas. 95. Where there is any consideration for the gratuitous pas- sage, the person carried is a passenger; as, where a person is carried free in considera- tion that he sends his freight over the road, as a drover with his cattle. New York Central R. Co. v. Lockwood, 17 "Wall. (U. S.) 357 ; Smith o. New York, &c. R. Co., 24 N. Y. 222 ; . Pennsylvania R. Co. v. Henderson, 51 Penn. St. 315 ; Cleveland, &c. R. Co, V. Curran, 19 Ohio St. 1 ; 2 Am. Rep. 362 ; Ohio, &o. E. Co. v. Selby, 47 Ind. 471 ; Graham v. Pacific R. Co., 66 Mo. 636 ; Flinn v. Philadelphia, &c. R. Co., 1 Houst. (Del.) 469; Indianapolis, &c. R. Co. V. Beaver, 41 Ind. 496 ; Thomp- son on Carriers of Passengers, 43-46 ; Indianapolis, &c. R. Co. v. Horst; 93 U. S. 291; Gillwaterw. Madison, &o. R. Co., 5 Ind. 540 ; 61 Am. Dec. 101 ; Perkins v. New York Gent. E. Co., 24 N. Y. 196 ; 82 Am. Dec. 281 ; Nolton v. Western R. Co., 16 N. Y. 444 ; 69 Am. Dec. 623; Gt. Northern Ry. Co. v. Harrison, 12 C. B. 576. It is true, a distinctioii has been taken, in some cases, between simple neg- ligence and great or gross negligence ; and it said that one who acts gratuitously is liable only for the latter. But this case does not call upon us to define the differ- ence (if it be capable of definition), as the verdict has found this to be a case of gi'oss negligence. When carriers undertake to convey persons by the powerful but danger- ous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such trans- portation be pecuniary or otherwise, the personal safety of the passengers- should not be left to the sport of chance or the negligence of careless agents. Any negli- gence, in such cases, may well deserve the epithet of 'gross.'" Leamer v. New World, 16 How. (U. S.) 469. 1210 RAILWAYS AS CAERIEES OF PASSENGERS. [CHAP. XVII. injuries resulting from gross negligence by any notice to that effect printed upon the pass, as such conditions are against the policy of the law.i It has been held, however, that when tickets or passes are purely gratuitous, the person receiving may by special agreement assume all risks of the journey incident to the mere negligence of the company.^ Express agents travelling upon a railway train assume the risks incident to being carried in a more dangerous place than other passengers ; ^ but unless there is a provision in the contract 1 In the case of drover's tickets, — Penn. E. Co. v. Henderson, 61 Penn. St. 316, — they are held to be predicated upon such a consideration that they cannot be enWei free tickets. So where a person is travelling upon the road for its advantage, as to look up property lost upon its trains or to look for baggage lost or to introduce some improvement upon the cars, — Rail- road Co. V. Stevens, 95 TJ. S. 655, — they are not free passengers. Missouri Pac. R. Co. V. Ivey, 71 Tex. 409 ; 87 Am. & Eng. R. Cas. 46 ; Carroll v. Missouri Pac. R. Co., 88 Mo. 239 ; 26 Am. & Eng. E. Cas. 268 ; Pitcher v. Lake Shore, &c. R. Co., 61 Hun (N. Y.), 623 ; Louisville, &c. E. Co. V. Taylor, 126 Ind. 126. See also Lawson v. Chicago, &c. R. Co., 64 Wis. 447 ; 21 Am. Eng. R. Cas. 249. One travelling on a drover's pass, being - pas- senger, is bound to conform to the regula- tions of the company just as if he had purchased a ticket. Little Rock, &c. R. Co. V. Miles, 40 Ark. 298. " Gallin v. Railway Co., L. R. 10 Q. B. 212 ; Illinois Central R. Co. v. Reed, 37 111. 484; Kinney v. Central E. Co., 34 N. J. L. .513 ; "Wells v. N. Y. Central R. Co., 24 N. Y. 181 ; Indiana Central E. Co. V. Mundy, 21 Ind. 48 ; Illinois . Central R. Co. v. Eeed, 87 111. 484. ' Penn. E. Co. v. Woodworth, 26 Ohio St. 585 ; Union Pac. E. Co. v. Nichols, 8 Kan. 505, 516 ; 12 Am. Eep. 476. In Yeomans v. Contra Costa Steam Nav., 44 Cal. 71, the plaintiff was agent or messenger for Wells, Fargo, & Co., and was carried under a contract of the express company with the defendant, whereby the defendant agreed to transport the freight and messenger for a fixed monthly compensation. The plaintiff, while on a car of the defendant company, was injured by reason of the negligence of defendant's servants. It was held that the plaintiff was a passenger and entitled to recover. In Blair v. Erie E. Co., 66 N. Y. 313 ; 23 Am, Rep. 55, the plaintiff was an express agent on a train in the course of his busi- ness, in pursuance of a contract, whereby the railroad company contracted to trans- port the freight of the express company for a certain consideration, and to trans- port the money-safes and messengers free of charge. The plaintiff was allowed to recover. In argument of the case the court treated the agent as a passenger, carried without hire. In Hammond v. Northeastern R. Co., 6 Rich. (S. C.) 130; 24 Am. Rep. 467, the plaintiff was a route agent in performance of his duty when injured by the negligence of the defend- ant's employes. 'The conditions were pre- cisely similar to those in the last case. The court held the plaintiff entitled to recover, clearly putting it as a case of a passenger, although not in terms calling him such. In Penn. E. Co. v. Hen- derson, 56 Penn. St. 815, the plaintiff's husband was a drover in charge of his cattle on defendant's train, he riding on a drover's pass, directing the conductor pf the passenger car attached to stock train to pass the bearer in charge of his stock in certain cars. In an exhaustive opinion the court held the plaintiff entitled to re- cover fpr the death occurring by the negli- gence of defendant's agents. Throughout the whole opinion the decedent is treated as a passenger ; numerous other cases are to the same effect. In most of these cases the person injured was employed on the train, the travel being but an incident of the employment. The mail clerk is not in SBC. 298.] RELATION OF PASSENGER, ETC. 1211 between the railway company and the express company exempting the former from liability for injuries resulting from the negligence of its servants, it is not exempted from' such liability either to the messenger or to one who is temporarily occupying his place.^ Postal clerks riding upon a postal-car run over a railway are passengers within the legal meaning of the term although they ride free under the mail contract, and passes are issued, to them under the contract containing a condition exempting the company from liability for injuries resulting from negligence.^ In the case first cited in the last note, the court said : " The de- ceased was a postal clerk, and the defendant was a carrier of the mails for the government by contract. It was a part of this contract that the postal clerks should be carried free. In Such cases the clerks are passengers and entitled to protection as such.^ The clerk was not travelling upon a free pass. The government officers made requisition for passes under the contract, and the defendant sent one with a condition upon the back of the pass making the recipient agree to waive his right to sue for injuries occasioned by the Negli- gence of the railroad company. This was not a part of the contract between the government and the defendant, nor of the contract between the government and the deceased. There was no basis for such a restriction upon the carrying of the clerk." This view of the law was sustained upon appeal,* — Euger, C. J., saying : " The defendant owed the same degree of care to the clerks and mail agents riding in the postal-car, in charge of the mails, as they did to passengers ridiug upon the train,^ and we see no reason for questioning the correctness of the disposition then made of the question.^ The pass was a mere voucher issued for the convenience of the agent and the information of the employes of the defendant, and did not in any sense constitute a contract between the defendant any way responsible for the running of Missouri Pac. R. Co., 105 Mo. 155. See trains. The conductor has no more power also pout, § 365. oyer him and no less than over any other ° Blair v. Erie E. Co., 66 N. Y. 313. passenger on the train. He has his proper * Seybolt v. New York, &o. R. Co., 95 place on the train, but that and his regular N. Y. 562 ; 18 Am. & Eng. R. Cas. 162. travel is all that distinguishes him from ^ Uolton . Western R. Co., 15 N. Y. the other passengers. 444; 69 Am. Dec. 623 ; and Blair v. Erie 1 Blair v. Erie R. Co., 66 N. Y. 313 ; R. Co., 66 N. Y. 313 ; 23 Am. Rep. 55. 23 Am. Rep. 55. 6 The opinion in the case of the Penn- " Seybolt v. New York, &c. R. Co., sylvania R. Co. v. Price_, 96 Penn. St. 31 Hun (N. Y. ), 100, affirmed 95 N. Y. 256, not only does not conflict with the 662 ; Hammond vt Northeastern R. Co., doctrine of these Cases, but cites with ap- 6 S. C. 130 ; 24 Am. Rep. 467 ; Mellor v. proval the Nolton case. 1212 KAILWAYS AS OAEEIERS OP PASSENGERS. [CHAP. XVII. and the person using it ; and the agent's acceptance thereof under the circumstances of this case did not indicate an intention to assent to the provisions therein contained, and even if it might be so con- strued, the want of a consideration for such an agreement rendered it nvdum 'pactum. A promise by one party to do that which he is already under a legal obligation to perform, has frequently been held to be insufficient as a consideration to support a contract." ^ In England the same rule prevails. Thus, in a leading case ^ the plaintiff was a mail agent travelling in the course of his employment upon the defendant's train. The mail and agents were carried free, under the directions of an act of Parliament. The plaintiff was in- jured by the negligence of the defendant's servants, and it was held to be immaterial that he was carried under a contract with the gov- ernment. He was a passenger carried by consent of the company, to whom it owed the duty of carrying safely. In Pennsylvania, under the statute of 1868, which provides that " when any person shall sustain personal injury or loss of life while lawfully engaged or employed in or about the roads, works, depots, and premises of a railroad company or in or about any train or car therein or thereon, of which company any such person is not an employ^, the right of action or recovery in all such cases against the company shall be only such -as would exist if such person were an employ^, provided that this section shall not apply to passengers." It is held that mail agents come within the statute.* I take it that the effect of this statute is to deprive the mail agent of his status as a passenger, and in that view the decision seems clearly right. An employ^ of the company, riding free as such, is not a passenger.* A 1 Vanderbilt ». Schreyer, 91 N. Y. was travelling in a carriage on the defend- °°^- aiita' railway. The engine and traiii ran 2 CoUett u. London, &c. By; Co., 16 ofif the rails, and after the accident a spring Q. B. 9§4. of the engine was found broken, the frac- 8 Penn. B. Co. ». Price, 96 Penn. St. ture being quite fresh. Unless this break- 256, reversing the judgment of the trial ing caused the engine to leave the rails. Court, reported in 22 Alb. Law Jour. 391. there was no evidence of the cause of the In Price V. Pennsylvania R. Co., 113 accident. The engine had been carefully IT. S. 218, the Supreme Court of the examined before starting. At the time of United States held that a writ of error the accident the deceased was a workman would not lie from the decision of the at gas-works which the defendants were Pennsylvania Court. empowered by act of Parliament to keep In Hando v. London, &c. Ry. Co. (Q. np for their own use, and they had works B., May 6, 1867), an action was brotight at Battersea and Dover. The deceased by a wife to recover damages for the death was in the regular employ of the defend- of her husband. The deceased was killed ants, and it was part of his ordinary duty by an accident which occurred while he to go from one set of works to the other. SEC. 298.] RELATION OE PASSBNGBE, ETC. 1213 per.son who, without knowing that it is against the rules of the com^ pany for passengers to ride upon a freight' train, if he pays his fare and is received by the conductor as a passenger, may be entitled to the rights of a passenger ; and such also may be the case where, not- withstanding the rules, it is shown that passengers have been habit- ually carried upon such trains ; but where a person knowing the rules gets upon a freight train, even with the assent of the conductor; and pays no fare, he cannot be regarded as a passenger; ^ nor is a trespasser upon a regular railway train a passenger within the mean- ing of the term.2 A passenger, as we have seen, is a person who rides upon the com- pany's trains, with its assent, not at the time being in its employ ; and any evidence which shows such assent is sufficient to create the relation. But a person who gets aboard a train with the declared or deliberate purpose of not paying his fare, although he gets upon the train openly, or who refuses, when called upon, to pay his fare, is not a passenger, or entitled to the rights or privileges of a passenger, and if injured no recovery can be had by him, except where the negli- gence producing the injury is gross or wanton.^ But even though a person is a trespasser upon the train, the employes of the company are not justified in forcibly expelling him therefrom while the train is in motion, or in using undue or brutal means for his expulsion. as occasion required, about once a fort- tham v. England, L. C. 2 Q. B. 33 ; and night. He travelled by the defendants' Tunney v. Midland Ry. Co., L. R. 1 C. P. railway free, and received one sjiilling for 291, and discharged the rule, his extra expenses. He was so travelling " Houston, &c. R. Co. v. Moore, 49 on the occasion of his death. Cockbukn, Tex. 31 ; 30 Am. Rep. 98 ; St. Louis, &c. C. J., before whom the cause was tried, B- Co, v. Ledbetter, 45 Ark. 246 ; Eaton directed a verdict for the defendants ; and ». Delaware, &c. R. Co., 57 N. Y. 382. a rule having been obtained, pursuant to Oontra Sherman v. Hannibal, &o. R. Co., leave reserved, to enter it for the plaintiff, 72 Mo. 62 ; 4 Am. & Eng. K. Cas. 589. it was claimed that as there was no negli- And it seems that there is much force in gence shown, but the contrary, the de- the view of this Missouri case. The con- fendants were not liable, bedause carriers ductor is charged with the adminirtration of passengers did not warrant the safety of of the company's rules while running the their passengers ; and that even if the de- train, and his assent to a passenger's being fendants would have been liable had the on the train is the assent of the company, deceased been an ordinary passenger, the Creed v. Penn. R Co., 86 Penn. St. 139 ; relation of master and servant existed be- 27 Am. Rep. 693. Where the company tween him and the defendants, and the receives him in the freight train and takes injury occurrpd in the ordinaiy course of up his ticket, as a matter of course, he is his duty. The court (Cookburn, C. J., regarded as a passenger. International, Blackburn, Mi5T.i.or, and Lush, JJ.) &c. R. Co. w. Irvine, 64 Tex. 529. were clearly of opinion that the case was ^ Highley v. Gilmer. 3 Mont. 90. not distingnishablp from Morgan v. Vale ' Highley v. Gilmer, 3 Mont. 90. of Neath Ry. Co., L. R. 1 Q. B. 149 ; Pel- 1214 RAILWAYS AS CABRIEES OF PASSBNGEES. [OHAP. XVII. Thus, where a person jumped upon the platform of a baggage car to ride to a place to which the train was being backed, and the baggage- master ordered him off while the train was in motion, and the plain- tiff refusing to get off because a pile of wood was so near the track as to make it dangerous for him to do so, whereupon the baggage- liiaster kicked him off, and falling against the wood and then under the train, he was injured, it was held that the evidence was sufficient to authorize the submission of the case to the jury.^ If the company permits a person to ride upon its trains without payment of fare, upon any consideration, — whether because of the profit it expects to derive from carrying his freight, or to take charge of freight being carried by it,^ or in consideration of his ren- dering certain services upon the train, as, supplying the 'passengers with ice-water,^ — he becomes a passenger, and is entitled to all the rights and privileges of such. The payment of fare is not necessary to create the relation ; it is sufficient that a person is upon the train with the assent of the company, although he is to be carried free.* Indeed, the relation is created before a person takes his place upon a conveyance of the company, and if he is at the station with the intention of taking passage, and has purchased his ticket, he is from that time entitled to all the rights and privileges of a passenger.^ 1 Kdunda v. Delaware, &c. R. Co., 6i son fraudulently travelling on a train with- N. Y. 129 ; 21 Am. Rep. 597. • out paying fare has none of the rights of ^ Indianapolis, &c. B. Co. v. Beaver, a passenger ; and no recovery can be had 41 Ind. 497 ; Little Rock, &c. R. Co. v, of a railroad company, for a personal in- Mlles, 40 Ark. 298 ; 13 Am. & Eng. R. jury to such person on its train, or for his Cas. 10 ; Yeomans v. Contra Costa Steam death caused by mere negligence. Toledo, Navigation Co., 44 Cal. 71 ; Ohio, &o. R. &c. R. Co. v. Brooks, 81 111. 245. Co. V. Selby, 47 Ind. 471 ; Cleveland, ' Central R. Co. v. Perry, 58 Ga. &o. R. Co. V. Curran, 19 Ohio St. 1 ; 2 461 ; Allendar v. Chicago, &CrR. Co., 37 Am. R«p. 362 ; Railway Co. v. Stevens, Iowa, 264; Gordon v. Grand St., c. R. 95 U. S. 655. . Co., 40 Barb. (N. Y.) 546 ; Dobiecki v. » Com. V. Vt. & Mass. R. Co., 108 Sharp, 88 N. Y. 203. See this subject Mass. 7 ; 11 Am. Rep. 301. more fully, post, §§ 810, 310 a. See also * Rose V. Des Moines Valley R. Co., "Weston v. N. Y. Elevated B. Co., 73 N. 39 Iowa, 246. In this case it was held Y. 595, affirming 42 N. Y. Super. Ct, that a railroad company may be liable for 156. In Rigg v. Midland Ry. Co., Part causing the death of a person as a passen- I., 12 Jur. (n. s.) 525, the injury was ger, notwithstanding he was at the time caused by the deceased while under a tem- riding upon a free pass, upon which was a porary infliction caused by himself. He stipulation signed by himself releasing the was running arm-in-arm with a companion company from all liability , for injury to in a footway by the side of the railroad.to his per.son or property while using the catch the train, and caught his foot in the same, if there was negligence on the part interstices between the planks of which of the employes of the company causing the footway was made, and both himself the death. See post, § 365. But a per- and his companion fell over on the rails SBC. 298.] RELATION OF PASSENGER, ETC. 1215 One who is on the train temporarily in order to assist an infirm person who is about to take passage on that train, is a passenger for the time being, although he has not purchased a ticket and does not intend to take passage. He is there by implied invitation of the company, and is entitled to insist that the company extend to him the same care as to other passengers. Therefore, if he is injured by leaving a moving train because the company refused to give him a reasonable time in which to get off, he may maintain an action for It is not necessary that a person should be on the train damages.^ as the train came in. The deceased was killed, ^nd his corapanioD saved himself with great difficulty. The platform was too narrow for two to walk abreast, and the condition of the parties, who had been drinking freely, prevented the exercise of due care and caution. It was held that the railroad company was not neg- ligent, and no recovery could be had. In Watkins v. Great Western Ry. Co., 37 L. T. (u. s.) 193, a railway porter was standing on a plank in broad daylight thrown across from parapet to jjarapet of a foot-bridge conmeoting the two platforms of a station, cleaning a lamp, when the plaintiff, accompanying her daughter to a train, in crossing the bridge struck her head against the plank and was injured, and it was held that the plaintiff could not recover. It was said by Denmak, J., that the obstruction was one which the plaintiff could have seen if she had not been walking with her eyes toward the ground ; that the accident did not hap- pen owing to any breach of duty on the part of the defendant, but solely owing to the unfortunate circumstance that the plaintiff walked with her eyes on the ground instead of looking before her. ^ Louisville, &c. R. Co. o. Crunk, 119 Ind. 542 ; 41 Am. & Eng. R. Cas. 158 ; 12 Am. St. Rep. 443 ; Doss v. Missouri, &c. R. Co., 59 Mo. 27 ; 21 Am. Rep. 371 ; McKone ». Michigan Cent. R. Co., 51 Mich. 601 ; 13 Am. & Eng. R. Cas. 29. But in Griswold ». Chicago, &o. R. Co., 64 Wis. 652; 23 Am. & Eng. R. Cas. 463, it is said that one who is at the sta- tion to meet his wife and gets on the train without notice to or permis.sion from the company is not a passenger. In Little Rock, &6. R. Co. i;. Lawton, 55 Ark. 428 ; 52 Am. & Eng. R. Cas. 260, a case involving similar circumstances, the court held : 1. That if the employes of the company offer to assist a lady passenger to a seat, her escort has no right to enter the coach for that purpose, and if he does so he is a trespasser, and the com- pany owes him no duty except to refrain from wilful injury. 2. That a person who enters a car to assist a passenger \:o her seat cannot recover for injunes sustained in leaving the train by reason of the fail- ure of the trainmen to hold the train a reasonable time for him to get off unless they had notice of his intention to do so. 8. That a published notice that per- sons not having business with the railway company were positively forbidden to en- ter any of its cars, does not apply to a person who attends >4 passenger to render needed assistance. The opinion of the court reviews a large number "of cases. It is said that the company is not bound in such a case to give the qimsi passenger notice that the train is about to start. ' Coleman ». Georgia R., &c. Co., 84 6a. 1 ; 40 Am. & Eng. R. Cas. 690 j Lucas V. New Bedford, &c. R.' Co., 6 Gray (Mass.), 64 ; 66 Am. Dec. 406. Par- ticularly where it has no knowledge of his being on the train. Griswold v. Chi- cago, &c. R. Co.,. 64 Wis. 652 ; 23 Am. & Eng. R. Cas. 463. And if the circum- stances are such as to make the act of leaving the moving train contributory neg- ligence (they were not so in the Indiana case, supra), his recovery is barred. Cent- tral E., &c. Co. v. Letcher, 69 Ala. 106 ; 12 Am, & Eng. E. Cas. 115; Coleman V. Georgia, &c. R. Co., 84 Ga. 1 ; 40 Am. & Eng. R. Cas. 690 ; Keokuk Packet Co. V. Henry, 50 lU 264; Lueaa v. New 1216 EAILWAY8 AS CARRIEES OF PASSENGBES. [CHAP. XVII. in order to be regarded as a passenger. He has the right to stand or walk on the platforms provided at stations for the convenience of passengers vrhile waiting for the train, or while it is stopping at a station for refreshments or other purposes, and can recover, as a passenger, against the company for an injury which he there receives, if the servants of the company fail to exercise due care in the dis- charge of their duties on the platforms, — as, if they throw sticks of wood from the train, without first ascertaining whether such action will endanger any passenger standing or walking there.^ So a, person who, by mistake, gets on a passenger train other than the one he intended to take passage upon is, nevertheless, a passenger upon the train he is on, and the relation of passenger and carrier exists between him and the company .^ So he is a passenger if he is upon a conveyance under the control of the company, being con- veyed to the station to take a train. Thus, a person who was injured while riding to a railroad-station with intent to take passage on the train, in a stage run by the company to bring passengers to their trains, was held to be a passenger, and entitled to claim damages for negligence of the driver; although he had not yet bought his ticket, nor made any formal announcement of his pur- pose to do so.' By statute in England railway companies are bound to carry by certain trains children under three years of age without charge, and are entitled to half the fare charged for an adult in respect of all children between three and twelve years of age. The plaintiff's mother, carrying in her arms the plaintiff, a child of three years and two months old, took a ticket for herself by one of these trains on defendant's road, but did not take a ticket for the plaintiff; in the Bedford, &o. R. Co., 6 Gray (Mass.), 64 ; thereon, and must be treated as passenger 66 Am. Deo. 606. who has taken the wrong train by mis- 1 Jeffersonville, &c. R. Co. v. Riley, take, and although he may be refused the 39 Ind. 568. right to travel thereon, he cannot be re- 2 Columbus, &o. R. Co. v. Powell, 40 garded or treated as a trespasser. Lake Ind. 37 ; Cincinnati, &c. R. Co. v. Carper, Shore, &o. R. Co. v. Rosenzweig, 113 112 Ind. 26 ; 31 Am. & Eng. R. Cas. 36 ; Penn. St. 519 ; 26 Am. & Eng. R. Cas. International, &o. R. Co. v. Gilbert, 64 489. But if under the circumstances he Tex. 536 ; 22 Am. & Eng. R. Cas. 405; ought to have been aware of the regulation, Arnold v. Pennsylvania R. Co., 115 Penn. and if he refuses to leave the train after St. 135; 28 Am. & Eng. R. Cas. 189. discovering his mistake, he becomes a tres- Where a passenger, without knowledge of passer and may be expelled. Atchison, a regulation, takes passage upon a pro- &c. R. Co. ti. Gants, 88 Kan. 608 ; 34 hibited train, the regulation not appearing Am. & Eng. R. Cas. 290. on the face of. the ticket, he is not a tres- ' BuiTett v. Troy, &o. R. Co., 40 N. passer, though he has no right to a passage Y. 168. SEC. 298.] RELATION OF PASSENGEK, ETC. 1217 course of the journey an accident occurred through the negligence of the defendant, and the plaintiff was injured. . At the time the mother took the ticket; the defendant's servants asked no questions as to the age of the child, and there was no intention on the part of the mother to defraud the company. It was held that the plaintiff was entitled to recover.^ But a person who is wrongfuUy upon the train, — as, a person who refuses to pay his fare, or one who has been expelled from the train for non-payment of fare, but immediatlely gets on board again, and tenders his fare, — is not a passenger, and, unless the fare is accepted, acquires no right to be carried as such.^ Nor is a person who is upon the train as a mere volunteer assistant to a train-hand, mail-agent, or express-messenger,* or a news-boy who is permitted by the train-hands to ride free to sell papers,* or an employd of the company, who is not employed upon the train, but is permitted to ride free from his home to the place of his employment.^ But as to the last proposition, it does not seem to us that it has any foundation in principle as to employes who have not commenced their work for the day, or who are returning after the services of the day are completed. How the mere circumstance that a person is in the employ of the company in a department entirely distinct from the operation of the train, who is permitted to ride free upon the train to and from his work, can deprive him of the status of a passenger, is not readily seen. While going to and from his work, the relation of servant does not exist. He is merely on his way to take up his position as servant, or is returning after his duty, as servant has ceased, and there is no reason why he shoidd not be 1 Austin V. Gt. Western Ry. Co., L. R. Cas. 226 (ridilig on a special car) ; Abell v. 2 Q. B. 442. See the same principle ap- "Western Maryland R. Co., 63 Md. 433 plied in a similar case in Massachusetts. 21 Am. & Eng. R. Cas. 503 ; New York-, Beckwith v. Cheshire R. Co., 143 Mass. &c. K. Co. v. Vick, 95 N. Y. 267 ; 17 Am, 68 ; 27 Am. & Eng. E. Cas. 192. & Eng. R. Cas. 609 ; Ryan v. Cumber * O'Brien v. Boston, &o. R. Co., 15 land Valley R. Co., 23 Penn. St. 384 Gray (Mass.), 20; 77 Am. Dec. 347. Little Schuylkill Nav. Co. b. Norton, 24 » Union Pacific R. Co. v. Nichols, 8 111. 465 ; Moss v. Johnson, 22 pi. 633 Kan. 505 ; 12 Am. Rep. 475. 'Russell v. Hudson River R. Co., 17 N. Y. * Snyder v. Hannibal, &o. R. Co., 60 134 ; Gilman v. Eastern R. Co., 10 Allen Mo. 413 ; Homing v. Brooklyn City R. (Mass.), 233; 87 Am. Dec. 635 ; Tunney Co., 1 Abb. (N. Y.) N. C. 433 ; Flower v. v. Midland Ry. Co., L. R. 1 C. P. 291. Penn. R. Co., 69 Penn. St. 210 ; 8 Am. Compare Rosenbaum v. St. Paul, &c. R. Hep. 251. Co., 38 Minn. 173 ; 34 Am. & Eng. R. * Kansas Pacific R. Co. v. Salmon, 11 Ga*. 274 (grad* on gravel train with con- Kan. 83 ; McQueen ». Central Branch, &c. djjctor'sconsent, oompanyheld liableto him R. Co., 30 Kan. 689; 15 Am. & Eng. R. for injury resulting from defect in track). 1218 BAIL-WAYS AS CAREIBE8 OP PASSENGERS. [CHAP. XVII. treated as a passenger as well as any other person who is riding free upon the train.^ A person travelling in the conveyance provided by a railroad company for its passengers and not connected with the company in the capacity of servant or agent is to be presumed to be a passenger and to be lawfully there ; the burden of proof is on the company to prove that he is a trespasser.^ It is otherwise, however, where he is on the train but is not in the coach regularly provided for passengers.* The relation of passenger and carrier terminates after the arrival of the train at the destination and the passenger has had reasonable time and opportunity to leave the premises or has actually left them. Thus, where a passenger having left his train started across some railroad ti^acks, not towards the station, and was injured by a passing train, it was held that he was not a passenger when injured, and was not entitled to recover on that basis.* 1 Fitzpatrick v. New Albany, &c. R. Co., 7 Ind. 463 ; Gilleiiwater v. Madison, &o. R. Co., 5 Ind. 340 ; 61 Am. Dec. 101 ; Ohio, &c. R. Co. V. Muhling, 30 111. 9 ; 81 Am. Dec. 336. * Louisville, &c. R. Co. v. Thompson, 107 Ind. 442 ; 27 Am. & Eng. R. Cas. 88, 329; Gillingham v. Ohio River R. Co. (W. Va. 1892), 51 Am. & Eng. R. Gas. 222 ; Creed v. Pennsylvania R. Co., 86 Penu. St. 139 ; Pennsylvania R. Co. v. Books, 57 Fenn. St. 339 ; 98 Am. Dec. 229 ; Bryant v. Chicago, , &c. R, Co., 53 Fed. Eep. 997. It has been held that the possession of a baggage check and the tes- timony of the baggage-master that when required by a passenger he puts a check on his baggage and gives him a dupli- cate therefor is sufficient, in the absence of other evidence, to show that the person possessing the check was a passenger on the car and that he had baggage cheeked on that occasion. Davis v. Cayuga, &c. E. Co., 10 How. Pr. (N. Y.) 330. But when a steamboat stops at one of its usual stopping-places to take on passengers and freight, there is no presumption that every person who goes on board does so as a passenger, unless ho notifies an officer to the contrary so as to relieve the stelm- boat company of its duty to give such as do not come aboard as passengers proper time and facilities for getting ashore. Keokuk Packet Co. v. Henry, 60 111. 364. ' Snyder v. Natchez, &o. E. Co., 42 La. An. 302; 44 Am. & Eng. R. Cas. 278. * Smith V. St. Paul, &o. R. Co., 32 Minn. 1 ; 16 Am. & Eng. E. Cas. 310. See also Central R. Co. v. Peacock, 69 Md. 257 ; Savannah, &c. R. Co. v. Watson (Ga.), 12 S. E. Rep. 237. In Massachusetts it is held that leaving a moving ti'ain thereby terminates the relation of passenger and carrier within the meaning of the statute. Com. V. Boston, &o. R. Co., 129 Mass. 500 ; McKimble v. Boston, &c. R. Co., 141 Mass. 463. See also Creamer v. West End St. By. Co., (Mass.) 31 N. E. Rep. 891. In Finnegan v. Chicago, &c. R. Co., 48 Minn. 878, plaintiff having gotten on the wrong train, the conductor stopped the train at a point not a station in order that he might get off and walk along the track to a train pointed out by the con- ductor which would carry him to his des- tination. It was held that the conduct of the passenger in thus leaving the train, having been entirely voluntary on his part, he ceased to be a passenger on leaving the train, and was not entitled to recover as such for an injury sustained from his fall- ing into a cattle-goard on the track. SEC. 299.J EBPAIB OF ITS EOADWAT. 1219 Sec. 299. Duties as to Construction and Repair of its Road-way. — In the construction of its road-bed, the company is bound to exercise the highest degree of care and vigilance, not only that it may be originally made safe- and secure for the passage of trains over it during all the varying seasons of the year, but also that it may at all times be -main- tained^ and kept in that condition} Public policy^ in view of the dangerous consequences likely to ensue therefrom, will permit no relaxation of this rule, but holds these companies to strict and active diligence, to see that their roadway and all their appliances are in a safe and proper condition. In the construction of its bridges over which its trains must pass, the company is bound to exercise the same great care as in the selec- tion and management of its appliances.^ As stated by Elliott, C. J., in- a recent case in Indiana : ? " The duty of d railroad company en- gaged in carrying passengers is not always discharged by purchasing from reputable manufacturers the iron rods or other iron work used in the construction of its bridges. The duty of the company is not discharged by trusting, without inspecting and testing, to the reputar tion of the manufacturers and the external appearance of such mate- rials. The law requires that before the lives of passengers shall be trusted to the safety of its bridges, the company shall carefully and skilfully test and inspect the materials it uses in its bridges. This duty does not end when the materials are put in place, but continues during their use ; for the company is bound to test them from time to time to ascertain whether they are being impaired by use or by exposure to the elements.* 1 Hanley v. Harlem E. Co., Edm. Sel. » Louisville, &c. K. Co. v. Snyder, 117 Caa. (S. Y.\ 359 ; Louisville, &c. R. Co. Ind. 425 ; 39 Am. & Eng. E. Cas. 139- V. Thompson, 107 Ind. 442 ; 27 Am. & 140. Eng. K. Cas. 88 ; Searle v. Kanawha, &c. * Louisville, &o. E. Co. v. Snyder, 117 E.. Co., 32 W. Va. 370 ; 37 Am. & Eng. Ind. 425 ; 37 Am. & Eng. R. Cas. 137, E. Cas. 179; Vicksbnrg, &c. R. Co. v. citmgr Manser ii. Eastern Counties Ry. Co., P^tnam, 118 U. S. 545 ; 27 Am. & Eng. 3 L. T. (n. s.) 585 ; Texas, &o. R. Co. v. R. Cas. 291. Suggs, 62 Tex. 323 ; 21 Am. & Eng. R. Cas. 2 Pershing v. Chicago, &c. E. Co., 71 475; Stokes v. Eastern Counties Ry. Co., Iowa, 561 ; 34 Am. & Eng. R. Cas. 405 ; 2 Fost & F. 691 ; Eohinson v. N. Y. Cen- LouisvlUe, &r. R. Co. v. Pedigo, 108 Ind. tral R. Co., 9 Fed. Rep. 877 ; Hegeman v. 481 ; 27 Am. & Eng. E. Cas. 310 (rate of Western E. Co., 13 N. Y. 9; 64 Am. speed while passing over the hridge may Deo. 517 ; Alden v. N. Y. Central E. Co., he shown) ; Bedford, &c. R: Co. v. Rain- 26 N. Y. 102 ; 82 Am. Deo. 401 ; Rich- holt, 99 Ind. 551 ; 21 Am. & Eng. R. ardson v. Great Eastern Ry. Co., 10 C. P. Cas. 466 ; Toledo, &c. R. Co. v. Conroy, 486 ; Ingalls v. Bills, 9 Met (Mass.) 1 ; 68 111. 560 ; Grote t-. Railway Co., 2 43 Ara. Dec. 346. See also Pittshurgh, Exch. 251. &e. R. Co. v. Gilleland, 56 Penn. St. 445 ; 1220 BAILWAYS AS CAKRIEKS OF PASSENGEES. [OHAP. XVII. The railroad company is not, however, an insurer against every possible casualty, but only, against such as result in spite of the to avoid such dangers as could be reason- ably foreseen by competent and skilful engineers, as likely to be occasioned from the ordinary rain-falls and freshets inci- 94 Am. Dec. 98 ; Birmingham v. Railroad Co., 14 N. Y. Supp. 13 ; New Bedford, &c. R. Co. V. Kainbolt, 95 Ind.. 651; 21 Am. &' Eng. R. Cas. 457. In this last case the court held that proof of the in- jury from the breaking down of the bridge created a presumption of negligence on the part of the company. The court also said that in the absence of proof that the safety of a properly constructed bridge may de- pend upon the soundness of a single iron rod, it is error to instruct the jury that if the bridge broke down because of a defect in such single rod, which was not discov- erable, and the injury occurred therefrom, there could be no recovery. New Bed- ford, &c. R. Co. V. Rainbolt, 99 Ind. 551 ; 21 Am. & Eng. R. Cas. 467. In the case of International, &c. R. Co. V. Halloren, 63 Tex. 46 ; 37 Am. Rep. 744 ; 3 Am. & Eng. R. Cas. 343, by a sudden and extraordinarily heavy rain-fall, about dark, confined to a limited locality, a por- tion of a railway bed was so undermined that it gave way under the weight of a train, three or four hours afterwards, and a passenger was injured. The railway bed ■was in safe condition before the rain-fall ; a train had safely passed over it two hours before the accident ; and it had been in- spected between the time of the passage of that train and the time of the accident, and was apparently in safe condition. The defect was not visible at the time of the accident, the train in question was care- fully run at half speed at the time in question. It was held that no action would lie against the company, — Bonneh, J., saying : "The test of liability is, not whether the company used such particular precaution as is evident after the accident happened might have averted it had the danger been known, but whether it used that degree of care and prudence which very cautious, competent persons would have used under the apparent circum- stances of the case to prevent the accident, without reasonable knowledge that it was likely to have occurred. Bowen v. N. Y. Central R. Co., 18 N. Y. 408 ; 72 Am. Dec. 529. A railroad company is required to so construct its road-bed and track as dent to the particular section of the coun- try through which it is constructed. But it would not be guilty of such culpable negligence as to make it liable in damages if it failed to provide against such ex- traordinary floods, or other inevitable casualties caused by some hidden force of nature unknown to common experience, and which could not have been reason- ably anticipated by the ordinary engineer- ing skill and experience required in the prudent construction of such railroad. If an accident should happen from such cause on a road-bed and track which had been properly constructed and kept in good repair, when the agents and em- ployes in charge of the train were in the due exercise of that degree of caution and prudence necessary at all times, and when they did not have, from information con- veyed to them, or from their own personal observation, reasonable grounds to antici- pate impending danger, and consequently did not use such extraordinary precautibns as might have otherwise averted it, then the law characterizes it as an act of God, or such inevitable accident as is incident to all human works, and which would re- lieve the company from liability. Even under the rigid rules of the common law, whieh made common carriers insurers of the safe delivery of all articles committed to their care, such cause would have ex- cused them. Shearm. & Redf. on Neg. (4th ed.), § 270 ; Withers v. North Kent. Ry. Co., 3 H. & N. 969 ; Railroad Co. v. Reeves, 10 "Wall. (U. S.) 176; Livezey w. Philadelphia, 64 Penn. St. 106; 3 Am. Bep. 578. The undisputed facts in this case show substantially, 1. That the de- fendant's road was first-class, only three years old, in good order at the place of the accident, and that the ties and iron were sound and good. 2. That in the latter part of the day, and about dark of the day of the accident, an unprecedentedly heavy rain fell in that locality, which was not general, but which caused the embank- SEC. 299.] BFPAIE OP ITS EpADWAY. 1221 highest degree of reasonable Arigilance.^ While it is bound to con- struct its road-bed and maintain it and its bridges in a safe condition for the use of its passengers,^ yet it is not liable for injuries resulting from defects therein that no reasonable degree of care or vigUance could have detected. Thus, while it is undoubtedly bound to con- struct them in such a manner as to withstand the effects of ordinary freshets, or, possibly, extraordinary freshets, yet it is not responsible for not securing them against unprecedented freshets, such as could not have been reasonably foreseen or guarded against.* In the case ment to give way under the train as it passed over the placfe, and thus caused the disaster. 3. That the track at that place was sound and in good condition, as far as could be seen, only one hundred and twenty-five minutes prior to the occur- rence, when the north-bound train passed over it. 4. That between that time and the occurrence of the accident, that section of the road embracing the place of the accident was inspected and found and left in good condition, and was still in good condition at the time the wrecked train ran on it, as far as could be seen ; had its usual appearance to an engineer who had been running over it ever since the road was buUt. 5. That the train and engine were in good condition, having been so found, on examination, only one hour before the accident, and were properly manned. 6. That the accident occurred seventy minutes after leaving Palestine, and sixteen miles from that place, when the train was running at about half-speed, on a track which was apparently safe at all times for that rate. 7. That it had rained during the day at Palestine, but not so hard as to make it necessary to give orders in reference to the track. The evidence, as thus disclosed by the record, shows that the defendant company had used a com- mendable degree of skill, prudence, and vigilance in the construction and manage- ment of its road, and that the misfortune to the plaintiff was the result of one of those inevitable accidents of which passen- gers assume the risk, and for which the law does not hold the company responsi- ble in damages." EUet v. St. Louis, &c. R. Co., 76 Mo. 518 ; 12 Am. & Eng. R. Cas. 183 ; Gillespie v. St. Louis, &c. R. Co., 6 Mo. App. 554. ' Chicago, &c. K. Co. ». Stumps, 69 111. 409 ; Gonzales v. N. Y„ &o. K. Co., 39 How. Pr (N, Y.) 407 ; 38 N. Y. 440 ; 98 Am. Dec. 58 ; Reed v. N. Y. Central R. Co., 56 Barb. (N. Y.) 493; Toledo, &c. R. Co. 0. Apperson, 49 111. 480 ; Kan- sas, &o. R. Co. V. Miller, 2 Col. 442. 2 Pittsburgft, &c. R. Co. v. Gilleland, 66 Penn. St. 445 ; 94 Am. Dec. 98. 8 Withers v. North Kent. Ry. Co., 27 L. J. Ex. 417 ; Gillespie v. St. Louis, &c. E. Co., 6 Mo. App. 554. But see Phil- adelphia, c. R. Co. ». Anderson, 94 Penn. St. 351 ; 39 Am. Rep. 787, where it was held that the company was liable for injuries resulting to a passenger by the washing of the embankment of a railway ' by an extraordinary freshet, where the nature and formation of the surrounding soil was such that the washout could have been avoided, if proper culverts had been provided, as they should have been, to have carried off such accumulations of water. So the company is liable if the engineer had reason to suspect that the track had been weakened by the storm, but neglected to test it. EUet v. St. Louis, &c. R. Co., 76 Mo. 518. See also Kansas Pacific E. Co. V. Miller, 2 Col. 442. Every railway company in the actual pos- session and occupation of its line of rail- way is responsible for the maintenance and preservation in a good state of repair of all its bridges, viaducts, and embankments, so that if any injuries are sustained either by persons travelling along a highway under a bridge or viaduct, or by passen- gers travelling along the line from the ruinous and insecure state of such bridge or viaduct, the railway company will be responsible for the injury, whether it arose from their own neglect in not providing 1222 BAILWAYS AS CARBIEES OF PASSENGERS. [CHAP. XVH. last cited, an action was brought for an injury received hy the plain- tiff while riding over the defendants' road. The case disclosed that the road-bed was constructed some five' years prior to the accident, and ran through a marshy country subject to floods ; that it was con- structed ou a low embankment composed of a sandy sort of soil likely to be washed away by water, and that the culverts were insuffi- cient to carry off the water. It was not slwwn, however, that the soil of the line had been washed away before, or that the water had ever come up to the embankment. It also appeared that, on the day upon which the accident occurred, an extraordinary storm, attended with very violent rain, had been raging for over sixteen hours, and that in con- sequence of this a stream near to the spot at which the accident oc- curred had swollen to a torrent and washed away a bridge, and passed needful reparations, or from original faulty construction of the fabric by their engineer or contractor. Chester v. Holyhead Ey. Co., 2 Exoh. 251. If a railway embank- ment has been injured by some wholly unexpected and extraordinary flood, and the rails give way, and the passengers are injured without any neglect or de- fault on the part of the company, the company is not responsible for the in- juries that may be sustained , by the pas- sengers. Withers v. North Kent. Ey. Co., 27 L. J, Exeh. 417. But every rail- way company is bound to construct and maintain its embankments and earthworks in such a manner as to be capable of resist- ing all the violence of the weather, which may be expected at some time or another, though rarely, to occur ; and if it fails in this duty it will be responsible in damages for negligence. Gt. West. Ey. Co. of Can- ada V. Fawcett, 1 Moore's P. C. C. (n. b.) 120. No person can be held chargeable for the consequences of a lawful act, which re- sults from vis major, and if in spite of the acts of the company the injury would have happened, it is not liable for the injury. Thus, in a recent English case, it was stated for the opinion of the court by an official referee that upon the occasion of a univer- sal rainfall, unprecedented in duration and quantity for many years in the district, there was imminent perilof the defendants' canal bursting ; and the defendants, in order to prevent it, raised a sluice by which a large quantity of water escaped into a neighboring brook and thence into a colliery. The water, having filled up this colliery, flowed into some collieries of the plaintiffs and destroyed their works. It was found that if relief had not been afibrded to the canal banks at this time, an inundation must have very shortly en- sued, which would have equally destroyed the plaintiffs' works and also caused far greater devastation to property, and proba- bly loss of life, throughout a very wide area ; that the course adopted by the de- fendants was prudent and proper, and the only eS'ectual measure which was possible in the emergency, 'i'he plaintiffs claimed in this action, alternately, damage for the defendants' wrongful acts, or compensation under the Defendants' Acts of Parliament, which provided for satisfaction to be made for injury or damage alleged to be sus- tained by reason of carrying into effect any of the prbvisions of that act. It was held that the plaintiffs' Injury was by the find- ing due, not to the defendants' wrongful acts, nor to the effect Of any of the provi- sions of the Defendants' Acts of Parlia- ment, but to vis major, or an act of God, and that, as in any event the plaintiffs' works would have been equally destroyed, the immediate damage caused by the de- fendants' own act in raising the sluice was injuria absque damno and irrecoverable. Nichols V. Marsland, 2 Ex. Div. 1 ; Q. B. Div. ; Thomas v. Birmingham Canal, &o. Co., 43 L. T. Eep. (n. s.) 436. SBC. 299.] REPAIR OP ITS EOADWAY. 1223 down with great force upon the line. By midnight the water had worn away the earth under the' sleepers, in some places leaving the rails unsupported and exposed, hut it did not appear that the water had at any part of the line caused the evil, or that the condition of the line could be perceived. The train upon which the plaintiff was injured was the express, and upon the whole went at the ordinary rate of an express train, although there was some evidence that it was being driven at a ^ster rate at the time when the accident occurred, to make up for lost time. The train had passed over the line safely until the accident occurred, by reason pf the undermining of the sleepers and the consequent giving away or settling of the rails, which threw the train down an embankment and seriously injured the plaintiff. The jury returned a verdict for the plaintiff for £1,500 damages, which, upon hearing in Exchequer, was set aside upon the ground that there was no sufficient evidence of negligence on the part of the defendants to sustain it.^ Bramwbll, K, said : " It is said that the construction of the line was such as to make it dan- gerous in a flood, and that, therefore, the defendants' servants must have known that it was dangerous to drive at an express rate of speed. But negligence must he shown by the plaintiff. It is not enough to show that an accident arose from certain extrinsic or external causes. Where is the evidence of negligence ? It is contended on the pa7i of the plaintiff that the company's servants were bound to know the conse- quenceswhich were likely to follow from the flood. That is not so. They were bound only to know that which could be known by the exercise of ordinary skill and prudence ; otherwise they would be made insurers of the safety of the passengers. There was no engineering or other skilled evidence to show that water would wash away the soil of which the embankment was made. So far from there being any evidence to show that there was negligence, there was evidence to * In an action to recover damages for from the bad condition of the road which injuries caused through the derailment of could have been avoided by proper skill a train, the court instructed the jury that a and diligence, the company could 'not railroad company is not liable for the results avail itself of the defence that the proxi- of the accident if the evidence shows that mate cause of the accident was the unpre- the accident was directly caused by an un- cedented bad weather. On appeal it was precedented spell of bad weather, and that held that this instruction was not errone- this bad weather could not have been ous ; it was not open to the objection that guarded against by human skill and judg- it made the company liable for the conse- ment, but that if the road was out of repair quences of the unusual bad weather before the bad weather set in, and proper whether it could have been anticipa'ted or care was not used beforehand to put it in not. Missouri Pac. R. Co. v. Johnson, good condition, and the injury resulted 72 Tex. 95 ; 37 Am. & Eng. R. Cas. 129, 1224 EAILWAYS AS OAERIEES OF PASSENGERS. [CHAP. XVII. negative the negligence imputed. The very existence of the line for five years, notwithstanding that the district was subject to floods, tended to negative the only negligence that was set up. There was nothing to show that, until the accident occurred, there had been s(nything to indicate danger, or to warn the company's servants to cease running the trains. The verdiet was wholly unwarranted," ^ The track must be in a safe condition so far as human foresight can accomplish that result ; but unless negligence in some/espect con- tributing to an injury resulting from defects therein can be attri- buted to the company, it is not liable.^ No precise rule of diligence can be stated, but the company is bound to construct its roadway in such a manner that it may resist all action of the weather, from floods or whatever cause arising, that may be expected to occur, al- though only at long intervals ; and as a necessary sequence, if ex- traordinary or unprecedented floods have once occurred, it must redouble its vigilance, a,nd place its embankments in such a condi- tion as to resist others of similar severity or intensity.^ Having 1 In Pittsburgh, &c. R. Co. v. Gilleland, 56 Penn. St. 445 ; 94 Am. Deo. 98, a simi- lar doctrine was held. See, also, similar in principle, Blyth v. Birmingham Water Works Co., 11 Exeh. 781; Fash v. Third Ave. R. Co., 1 Daly (TS. Y.), 148. 2 Toledo, &c. R. Co., v. Apperson, 49 111. 480 ; Eeed v. S. Y. Central R. Co., 56 Barb. (N. Y.) 493; Gonzales v. N. Y. Central R. Co., 39 How. Pr. (S. Y.) 407. A passenger cannot be considered guilty of contributory negligence in taking passage over a railroad although he knows the track is not safe. Citizens' St. R. Co. v. Twi- name, 111 Ind. 587 ; 30 Am. & Eng. R. Cas. 616. » EUet V. St. Louis, &o. R. Co., 78 Mo. 518 ; 12 Am. & Eng. R. Cas. 183 ; Ely V. St. Louis, &c. R. Co., 77 Mo. 34 ; 16 Am. & Eng. E. Cas. 342 ; Great West- em Ry. Co. of Canada v. Fawcett, 1 Moore's P. C. C. (N. s.) 101. Absolute perfection is neither expected nor required in the track or appliances of a railway, but such a degree of condition and repair as is con- sistent with the nature of the business, and the risks involved must be observed. When a railroad is first constructed it can- not be expected that its road-bed will be as solid or secure as it will become after having been subjected to the washings of storms and the repeated additions of gravel and stones constantly made to supply the defects thus from time to time disclosed. So,' too, defects may be disclosed by the action of unusual storms which could not, in the first instance, have been anticipated; and if in such cases, the company has, in the first instance, made such reasonable provisions for resisting the action of such storms as are usual or known in that sec- tion of the country, as the nature of the country and the situation of the road de- manded to ensure the safety of travel over it, it cannot be made responsible for an in- jury resulting from a defect created by an extraordinary storm. International R. Co. V. Halloren, 53 Tex. 46; 37 Am. Rep. 744. But such a storm having once occurred and disclosed the weak points in the road, the duty is then imposed upon the company of providing against similar consequences from a similar cause, although such a cause may not arise again for many years, or, possibly, ever. If, however, the company has not in the first instance adopted such precautions for carrying off the water of ordinary storms as reasonable prudence required should be made because of the nature of the country, it cannot screen it- self from liability because the injury in fact resulted from an unusual or even un- SEC. 299.] REPAIR OP ITS ROADWAY. ■1225 regard feo the high trust imposed in railway carriers and to the disas- trous consequences which must follow anj' relaxation of the strict observance of their dutieSj the law imposes upon such carriers the duty to exercise all the care, diligence, and skill which are reason- ably possible in the construction and maintenance of their road-beds and bridges, and to keep up a constant and vigilant supervision over them in order to preserve them in proper condition. For any injury resulting to passenger from the slightest neglect in the discharge of this high duty, the carrier must respond.^ The duty is the same as to all carriers regardless of their wealth or poverty. The rule as above stated does not mean that the company must exercise care and preoedented storm. Philadelphia, &c. R. Co. V. Anderson, 94 Penu. St. 351. In this case the location of the road and the nature of the surrounding country was such as to require that provision should he made for carrying off the water of such storms as were known to occur in that vicinity, but the defendants neglected to make any provision therefor, and the court held that they were guilty of negligence, although the defect in the road resulted from an extraordinary storm. But in a later case the court held that, where the road had been constructed with culverts sufficient for carrying off the water arising from known or usual storms, the company ^ould not be held responsible for injuries to a sohoolhouse, resulting from the insufiioiency of such culverts to carry off the water of an umnnial or extraordinary storm. Baltimore, &c. E. Co. v. Sulphur Springs, 96 Penn. St. 65. ' Louisville, &c. R. Co. v. Thompson, 107 Ind. 442 ; 27 Am. &Eng. E. Cas. 88 ; Iiiternational,&c. E. Co. v. Hallbren, 53 Tex. 46 ; 37 Am. Rep. 744 ; Texas, &c. R. Co. V. Hamilton, 66 Tex. 92 ; 26 Am. & Eng. R. Cas. 182; Rutherford u. Shreveport, &c. R. Co., 41 La. An. ?93 ; 41 Am. & Eng. R. Ca.s. 129 (injury caused from decayed ties) ; Searle v. Kanawha, &c. R. Co., 32 W. Va., 370 ; 37 Am. & Eng. R. Cas. 179; Littlejohn v. Fitchburg R. Co., 148 Mass. 478 ; 87 Am. & Eng. E. Cas. 54 ; Rock- well V. Morrison, 20 Penn. St. 171 ; Withers v. Railway Co., 3 H. & N. 969 ; Tyrrell v. Eastern R, Co., Ill Mass. 646 ; Michaels ii. N. Y. Central E. Co., 30 N. Y. 564 ; Rockwell Third v. Ave. E. Co,, VOL. 11—27 53 N. Y. 625. As to bridges, see Toledo, &c. E. Co. V. Conroy, 68 111. 560. The fact that the outside rail on a curve is lower than the inside one is evidence of negligence, since the most ignorant me- chanic knows that the inside rail should be the lower ; and if the train was running rapidly round such a curve, no other proof of negligence is necessary. Central R. Co. V. Sanders, 73 Ga. 513 ; 27 Am. & Eng. R. Cas. 300. Any witness may give his opinion as to what caused the train to run off the track if he states the reasons and facts upon which his opinion is founded. Central R. Co. v. Senn, 73 Ga. 705 ; 27 Am. & Eng. R. Cas. 304. Nor can the company object to evidence on the part of plaintiff's witnesses that the general con- dition of that part of the road where the injury occurred had long been poor and that the rails thereon had been in use for rtiany years. Vicksburgh, &c. E. Co. v. Putnam, 118 U. S. 545 ; 27 Am. & Eng. R.-Cas. 29] ; Missouri Pac. E. Co. v. Col- lier, 62 Tex. 318. In the case of Louisville, &c. E. Co. y. Ritter, 85 Ky. 368 ; 28 Am. & Eng. R. Cas. 167, the train on which plaintiff was being carried collided with a cow on the track, and the shock of the collision caused tlie derailment of plaintiff's coach. The court held that the company was liable ; that it was negligence in not keeping its track and roadway clear of bushes and trees so that the engineer might be able to see obstructions ahead. It was also held that the fact of injury to a passenger cre- ates a presumption of negligence against the company. 1226 RAILWAYS AS CARRIERS OF PASSENGERS. [CHAP. XVII. make use of the best methods possible only so far as its means will allow. A company cannot allege its poverty as an excuse for its negligence in this respect. If it is too poor to discharge the obliga- tions of a carrier properly, it must not assume the privileges of one.^ Corporations are bound to the same degree of care in the conduct of their business, and are subject to the same rules of liability for wrongful acts committed by them in the line of their duty, as indi- viduals are, a*nd being liable for the tortious or wrongful acts of their servants or agents, it follows as a natural and legitimate result that they are liable for the manner in which their duties are dis- charged, or, in other words, for the negligence of their officers, agents, or servants in the ^discharge of their duties, in whatever department they are employed. The question of liability for acts claimed to be negligent must depend largely upon the powers and purposes of the corporation, the agencies employed in the conduct of its business, and the consequences of any remissness in the discharge of the du- ties conferred upon its agents.^ The rale is that a degree of care must be observed commensurate with the character of the agencies eifiployed, and the risk to others from their improper or negligent employment.^ . > Thus, while a railroad company is bound to exercise tlie highest degree of care in the selection of its machinery, cars, and other appliances, and in the constraction of its road-bed, and in keeping the same in repair, yet it is not liable for the result of an accident which could not have been prevented by the exercise of such care. In other words, when an injury results from causes that the exercise ' See Texas Trunk R. Co. v. Johnson, do their work negligently, — at all events, 76 Tex. 158 ; 41 Am. & Eng. K. Cfts. if the company have no control over the 122 ; post, pp. 1251, 1252. workmen, and are otherwise not responsible ' Philadelphia, &c. R. Co. v. Derby, 14 for their acts ; and £ord Westbuby held How. (U. S.) 468. See also Daniel v. that it would not affect the doctrine if Metropolitan By. Co., L. R. 8 H. Li. Cas. those proper and skilled workmen were 45. The result of the decision in thiij Int- employed directly by the company. Foy ter case was to establish the principle that v. London, &c. Ry. Co., 18 C. B. (n. 8.) where the execution of work, which, if 225, affirmed L. R. 4 Exch. 117 ; 38 L. carefully and properly done, need not re- J. Exch. 67. See also Harrold v. Great suit in accident to passers-by, is intrusted Western Ry. Co., 14 L. T. Rep. 440; to skilled and proper workmen, there is no Adams v. Lancashire, ic. Ry. Co., 88 L. J. obligation on a railway company, whose line C. P. 277 ; Plant v. Midland Ry. Co., 21 adjoins the work, to take special preoau- L. T. Rep. 886. tions to avert from their passengers a dan- ' Wood's Law of Master and Servant, ger which can only be apprehended on the 688, 788. supposition that the workmen engaged will SEC. 300] CARE REQUIRED IN RELATION TO APPLIANCES. 1227 of the, highest degree of reasonable care amid not have prevented, it is not liable, as such injuries are the result of inevitable accident.^ Sec. 300, Care required in relation to Engines, Cars, etc., — The same degree of care is required of the company in the selection of engines, cars, and other appliances for the prosecution of the busi- ness as is required in the case of its road way .^ It is not exonerated from liability for injairies resulting from defects in its vehicles, be- cause it purchased them from competent manufacturers, but is re- sponsible for defects therein resulting from the negligence of the manufacturers, precisely the same as it vi^ould be if it manufactured them itself.^ It is not responsible for all defects therein, but only 1 Kansas Pacific B. Co. v. Miller, 2 Col. 442 ; Hegeman v. Wpstern R. Co., 13 N. Y. 9 ; 64 Am. Dec. 516. The rale laid down by Mansfield, C. J., in Christie v. Gvigga, 2 Camp. 79, that a carrier of pas- sengers is bound to provide for their safety " as far as human care and foresight will go " has been considerably modified in the English courtSj^Readhead v. Midland Ry. Co., L. B. 4 Q. B. 379,,— at least in its application, and the rale of reasonable care in view of the circumstances and the mode of conveyance adopted. And in this country, while many of our courts adhere to the rule so far as the mode of express- ing it is concerned, — Indianapolis, &c. E. Co. V. Horst, 93 U. S. 291 ; New Jersey, &c. R. Co. V. Kennard, 21 Penn. St. 203 ; Meier v. Penn. B. Co., 64 Penn. St. 225 ; Philadelphia, &c. E. Co. v. Derby, 14 How. (U. S.) 468 ; Laing v. Gaidar, 8 - Penn. St. 479 ; Taylor v. Grand Trunk B. Co., 48 N. H. 304; 2' Am. Rep. 229, — yet practically they have kept pace with the English courts and held such carriers up to the rule oireasondbU diligence. Bift the standard of reusonable care adopted by our courts generally requires a higher de- gree of care than see^s to be required in England. That is, they require more than such care as an ordinarily prudent man would exercise, if the business was his own ; such reasonable care as a prudent man would exercise in view of the nature of the business, and the consequences to life and limb likely to ensue if there is any relaxation in proper vigilance as to the general conduct, or the appliances of the business. As the agencies employed are of the most dangerous character/ this rule demands the highest degree of care which can reasonabfy be exercised to secure the safety of passengers, without reference to the pecuniary ability of the carrier, short of making him an absolute insurer of the passenger's safety. This is what consti- tutes reasonable care, and seems to be the actual doctrine of our cases, however it is expressed. Thus, while a railway company is not responsible for an injury resulting from alatent defect in its bridges, rails, cars, engines, or other appliances, which has not been discovered by the application of the most approved tests, — Hegeman v. West- ern B. Co., 13 N. Y. 9 ; 64 Am. Dec. 517; Ingalls V. Bills, 9 Met. (Mass.) 1 • 43 Am. Dec. 346 ; Meier ». Penn. B. Co., 64 Penn. St. 225; 3 Am. Rep. 581, — yet it is liable for ail injury resulting from a latent defect in any of these appliances, when it has not tested them by the proper tests, or taken any proper measures to ascertain whether or not they were defective, if by the appli- cation of any known test the defect might have bten discovered. Hegeman^ v. West- ern R. Co., 13 N. Y. 9 ; 64 Am. Dec. 517. In the one case there has been an exercise of reasonable care, in the other there has not been. 2 Beadhead v. Midland By. Co., L. E. 2 Q. B. 412; Burns v. Cork, &c. By. Co., 13 1. E. C. L. 543 ; Grote v. Chester, &c. Ry. Co., 2 Exch. 251. 8 Burns v. Cork, &c. Ry. Co., 13 Ir. C. L. 543 ; Louisville, &c. B. Co. v. Sny- der, 117 Ind. 435 ; 37 Am. &Eng. E. Cas. 137 ; Texas, &c. B. Co. v. Suggs, 62 Tex. 323 ; 21 Am. &. Eng. E. Cas. 475; Miller V. Ocean Steamship Co., 118 N. Y. 199. 1228 KAILWAYS AS CARRIERS OF PASSENGBBS, [OHAP, XVII. for such as could have been ascertained by the exercise of the high- est degree of vigilance,^ or, in other words, for defects which could have been detected by a reasonable degree of care or skill, either in the course of manufacture or afterwards.^ dt may assume, under such circumstances, that its appliances are in good condition, if they ap- pear to he so upon such inspection dnd the application of such tests as are reasonable, usual, and practicable.* In New York a differ- ent rule of liability was at one time held, and the company was held to be bound at its peril to provide safe cars, and to be responsible for 'injuries resulting from defects therein, irrespective of the question of negligence.* But the doctrine of these cases has been overruled, and the doctrine stated supra-now prevails in that State.® The doc- 1 stokes V. Eastern Counties Ky. Co., 2 F. & F. 691, ; Manser v. Eastern Coun- ties Ey. Co., 31 L. T. (n. 8.) 585; Peyton V. Texas, &e. R. Co., 41 La. An. 861; 41 Am. & Eng. R. Gas. 550 {use of defective engine^ ; International, &o. R. Co. v. Prince, 77 Tex. 560 ; 44 Am. & Eng. B. Cas. 294. 2 Readhead v. Midland Ry. Co., L. R. 4 Q. B. 379. In this case the court held that the contract made between the com- pany and a passenger is, to take due care to carry him safely, and is not a warranty that the carriage in which he travels shall be in all respects perfect for such purpose; that is to say, free from all defects likely to cause peril, although the defects were such that no skill or foresight could have detected their existence. ~ 8 Grand Rapids, &c. K. Co. v. Huntley, 38 Mich. 537 ; 31 Am. Rep. 321. The fact that a train was twice derailed within a short distance is strong primd facie evidence of negligence on the part of the company, and unless rebutted is sufficient to sustain a verdict in plaintiffs favor. Texas, &c. R. Co. v. Suggs, 62 Tex. 823 ; 37 Am. & Eng. B. Cas. 475. Whether the system of inspecting the appliances of its passenger cars adopted by a railroad company and the manner of its execution are all that the duty of the car- rier reiiuires cannot be measured by any rule of law to be applied by the court, but is a question of fact to be determined by the jury after proper instructions from the court as to the degree of care imposed upon the company. Palmer v. Delaware, &c. Canal Co., 120 N. Y. 170 ; 44 Am. & Eng. R. Gas 298. Under this, rule it is held that the finding of the jury that the de- iiendant company had not used due care in examining the drawhead of a, oar, the spindle of whicli.- broke and caused the injury to plaintiff, should not be disturbed although it is shown that the spindle was a new one, and that in order to examine it it was necessary to pull the car apart, and that such a spindle had never been known to break before by the use made of it in running a train. » Alden v. N. Y. Cent. R. Co,, 26 'S. Y. 102 ; 82 Am. Dec. 401 ; Hegeman v. Western R. Co., 13 N. Y. 9 ; 64 Am. Dec. 517. ^ Carroll v. Staten Island B. Co., 68 N. Y. 126 ; Caldwell v. N. J. Steamboat Co., 47 N. Y. 290. Mr. Hutchinson in his excellent book on (jarriers is of the opinion that the Hegeman case is still the rule in New York. Hutchinson on Carr. (2d ed ), § 510. In the. Hegeman case (13 N. Y. 9, 64 Am. Dec. 517) where a passenger was injured by the breaking of an axle of a railway car in consequence of" latent defects which could not be dis- covered by the most vigilant external ex- amination, hut which could h/tve been dis- covered in the process of manufaclure by the application of known tests, it was held that although the car was purchased from a skilled manufacturer the company was liable. In this case, Gardiner, C. J., said : " It has been said that every way- farer must take the risks incident to the mode of travel he adopts ; but these riiiks SEC. 300.]^ CAKE EEQUIKED IN RELATION TO APPLIANCES. 1229, trine at first propouuded by the New York court was at one time but in a later case it has been repudiated recognized in Tennessee ; are only those which cannot be avoided by the earner of passengers by the utmost de- gree of care and skill in the preparation and management of the means of conveyance. The carrier, in the language of other judges, is bound to use all precautions, as far as human care and foresight will go, for the safety of his passengers. In . the application of these principles, it is obvi- ous that the same precautions will not ex- onerate the carrier of passengers from responsibility in evei-y mode of travel. The foresight and preparation that would suffice to satisfy the rule in one species of navigation or conveyance would not an- swer in another ; and the external exami- nation,^ which in connection with the reputation of the builder lof a stage-coacli would and ought to satisfy the scruples of the most cautious person as to the safety and security of a vehicle designed to run from six to eight miles an hour, would not satisfy any reasonable man as to the sufficiency of another, intended to sustain a far greater weight, and to be propelled by steam thirty, forty, or fifty miles in the same time. The charge of the learned judge at the, trial assumes and proceeds upon this distinction throughout'; and in that part of it where he gives the measure of the responsibility of the defendant, in the strongest terms against him and in favor of the plaintiff, he says that ' al- though the defendant purchased his axles and cars of extensive and skilful manu- facturers, who, in the exercise of their skill, knew of no test and used no test to discover latent defects in axles, yet if there wore any tests known to others, and which should have been known and em- ployed by the manufacturers, as men pro- fessing skiU in their particular business, although the same may not have been used by some others engaged in the same busi- ness, defendant was guilty of negligence in not using this te^, pi'ovided the injmy oo- cuiTed to the plaintiff by reason of a defect which by such test might have been dis- covered.' The substance of the charge was that although the defect was latent and could not be discovered by the most vigilant, external examination, yet if it could be ascertained by. a known test, applied either by the manufacturer or the defendant, the latter was responsible. In these instructions there was no error. In- galls V. Bills, 9 Met. (Mass.) 1, cited by the defendant's counsel, was the case of a stage-coach, in which the injury was occasioned by the breaking of the axle. The fracture was internal, and surrounded by sound iron one-quarter of an inch thick. The court held that where the accident arises from a hidden and internal defect, and which could not be guarded against by thcTexercise of a sound judgment and the most vigilant oversight, then the pro- prietor was not liable for the injury. I concur in that decision, in the particular case presented. ; but the learned judge did not intimate 'Ahat a sound judgment and the most vigilant oversight' would be evi- dence, by the adoption of the same meth- ods of examination in the case of a stage- coach and a car for the express train of a railroad. The mode of construction, the purposes to be subserved, and, above all, the probable consequences of a hidden de- fect, in the two cases are altogether differ- ent. It might as plausibly be urged that a chain for agricultural purposes and the cable of a ship of the line should be sub- • jected to the same tests, because both were chains and each manufactured of the same ' material. Keeping the distinction indi- cated in view, the charge was sufficiently favorable to the defendajit. Two questions were presented for the consideration of the jury first, Wa? there a test known to and used by others, and which should have been known to a skilful manufacturer, by which the concealed defect in the axle of the car could have been detected ? and it so, then secondly. Was the injury to the plaintiff the consequence of that imper-, feetion ? There was evidence tending to establish these facts which the jury have found ; and the question returns, Can the defendant, who neither applied the test nor caused it to be applied by the manufacturer, Nashville, &c. R. Co. v. Elliott, 1 Coldw. (Tehn.) 611 ; 7S Am. Dec. 506. 1230 BAIL-WAYS AS CAEKIEES OF PASSENGEUS. [CHAP. XVII. and the better doctrine adopted.^ In the last case cited, the couil; went' on to say : " The legitimate obligation imposed upon the com- pany by its contract with a passenger or employ^ is, that its engine and apparatus are then suitable, sufficient, and as safe as care and skill can make them, and that the company will be responsible for any injury resulting from defects therein, which might have been discovered by the company or its agents by the proper care and skill in the application of the, ordinary and approved tests. If the defects are such that they could not be discovered by the company or its agents after a careful and skilful application of the ordinary am] approved tests, then the company cannot be held responsible, al- though it may appear that the defects might have been discovered by the manufacturers, by applying the proper tests. We hold it unreasonable to assume that the company not only contracts to be insist that this accident ' could not have- been avoided by the utmost degree of care and skill in Ihe preparation of the moans of conveyance,' or 'that they used all precautions, as far as human care and foresight would go, for the safety of the plaintiff aa one of their passengers ' 1 It seems to me that there can be but one answer to the question. It was said that carriers of passengers are not insurers. This is true. That they were not required to become smelters of iron or manufac- turers of cars, in the prosecution of their business. This also must be conceded. What the law does require is that they shall fui'nish a sufficient car to secure the safety of their passengers, by the exercise of th^ ' utmost care and skill in its preparation.' They may construct it themselves, or avail themselves of -the seiTioes of others ; but in either case they engage that all that well-directed skill can do has been done for the accomplishment of this object. A good rpjjutation on the part of the builder i« very well in itself but ought not to be accepted by the public, or the law, as a substitute for a good vehicle. What is demanded, and what is undertaken by the corporation, is not merely that the manu- facturer had the requisite capacity, but that it was Skilfully exercised in the par- ticular instance. If to this extent they are not responsible, there is no security for individuals or the public. It is per- fectly understood that latent defects may exist, undiscoverable by the most vigilant examination when the fabric is completed, from which the most serious accidents may occur. It is also well known, as the evidence in this suit tended to prove and the jury have found, that a simple test — that of bending the iron after the axle was formed, and before it was con- nected with the wheel — existed by which it could be detected. This should have been known dnd applied by men ' profess- ing skill in that particular business.' It was not known, or, if known, was not applied by these manufacturers. It was not used- by the defendant, nor did they inquire whether it had been used by the ' builders. They relied upon an external examination, which they were bound to know would not, however faithfully prose- cuted, guard their passengei-s against the danger arising from concealed defects in the iron of the axles, or in the manufac- ture of them. For this omission of duty, or want of skill, the learned judge held, and I think correctly, that they were liable." In a later case in New York, Alden v. K. Y. Central E. Co., 26 N. Y. 102, it was held that the company was liable although the defect coul^ not be discov- ered by any practicable tests ; but this is now repudiated in that State. McPsd- den V. N. Y. Central E. Co., 44 N. Y. 478. * Nashville, &c. E. Co. v. Jones, 9 Heisk. (Tenn.) 27, 42. SEC. 300.] CARE REQUIRED IN RELATION TO APPLIANCES. 1231 responsible for its own negligence, but also for that of the manu- facturers." ^ The court went on to hold that these principles would apply as well to a case where the injured party was an employ^ as where he was a passenger, it being a part of the company's duty to provide safe appliances for the use of its employes and servant^.^ But there is a very clear distinction between the company's liability to passengers and to its servants on the same train; these latter on entering the service voluntarily assume all the dangers and risks necessarily incident to it. They have a right to require that the company shall use due care to have its machinery, cars, and appli- ances reasonably safe ; but the duty owing to them in this regard is not nearly so great as that due to passengers.^ The rule in refer- • ence to the degree of vigilance to be observed was well expressed 'in an English case previously cited.* This case contains such an excellent and generally accurate state^^ ment of the degree of vigilance required from a railway company in 1 Nashville, &c. B. Co. v. Jones, 9 Heisk. (Tenti.) 42. The court overruled the Elliott case and expressed its strong disapproval of the Hegeman case (13 N. Y. 9) as being opposed by all the authority on the subject. In the case of Gulf, &c. E. Co. o. Gross (Tex. App. 1893), 21 S. W. Eep. 186, which was an action by a passenger to recover for injuries received by reason of a defective station-platform, the trial court instructed the jury that: "It was the duty of the defendant company to provide reasonable accommodations at its stations for passengers who travel on its trains. It was its duty to keep in a safe condition all portions of their platforms and approaches thereto, to which the pub- lic do or would naturally resort for the purpose of boarding its trains." The court, in referring to this, observed : " It is contended that this charge required the carrier to keep its platform and approaches in safe condition, and thereby required a, degree of diligence not demanded by law. We think there is merit in this conten- tion. The law does not require common can-iers to keep their platforms and ap- proaches thereto in safe condition. They are not insurers as to the, safety of the pas- senger in this respect. The effect of this charge is to make them so, and for this reason we reverse the judgment.'' It may be questioned, however, whether the appel- late court was not guilty in this case of too severe refinement. 2 Nashville, &o. R. Co. y. Jones, 9 Heisk. '(Tenn.) 27. ' This principle is very clearly set out in the opinion of McKinnby, J., in Nash- ville, &c. R. Co. V. Elliott,; I Coldw. (Tenn.) 616; 78 Am. Dec. 506. This case, though overruled in 9 Heisk. (Tenn.) 27 on a single point, is still authority for the principle of the text. An employe being carried without fare to his home after his day's work is a passenger, and entitled to the observance of the duties attending that relation. Abell.B. Western Mary- land R. Co., 63 Md. 433 ; 21 Am. & Rug. R. Cas. 503. Compare N. Y. Central R. Co. V. Vick, 95 N. Y. 267; 17 Am. &' Eng. R. Cas. 609 ; McQueen v. Central Branch R. Co., 30 Kan. 689 ; 15 Am. & Eng. R. Cas. 226. * Mansers. Eastern. Counties Ry. Co., 6 H. & N. 899. See 6liver v. N. Y. & Erie R. Co., 1 i;dm. Sel. Cas. (N. Y.) 589, where an injui-y arose from a defective wheel which had been cracked, but the crack not discovered, and the prostration of a defiectively constructed bridge, and the court held that the defendant was guilty of negligence. 1232 BAIL WAYS AS CAEKIEES OF PASSENGERS. [CHAP. XVII. reference to its cars, machinery, and appliances, that we give the main portion of it here. It was a case in which an action was brought by the plaintiff to recover damages for injuries sustained by him while travelling on the defendant's railway, as he alleged, from the negligence of the company. ■ It arose from an imperfect weld in the formation' of a wheel, — in this case the driving-wheel. It appears in this case that driving'^wheels are usually formed in the first instance with a thickness of about two and one-fourth inches. They are allowed to run some time, and then ground down or re- turned for the purpose of making them again smooth ; and this operation is performed about three times. Ultimately, the thickness of the wheel is reduced from about two and one-half or two and one-fourth inches to about one and one-fourth. If it happens to be below one and one-fourth it is considered worn out, and should not be' continued in use. About three times a wheel may be re- turned ; or it may be re-turned only twice, but with three different thicknesses. Before it is used the first time it should be hammered all round and all over to test its soundness, and to ascertain, as far as it is possible to ascertain, if it be perfect, whether it will ring, and is sound in every part.^ This wheel had been so tried before it ' Carriers should exercise the care and employing unknown and most extraordi- prudence of a very cautious person. Tay- naiy measures to ascertain whether their lor V. Qraud Trunk R. R. Co., 48 N. H. rails were sound or not, and would impose 304 ; Seymour, w. Chicago, &o. R. E. Co., such hazards upon railway companies that 3 Biss. (U. S. C. C.) 43 ; Union Pacific they could not afford to prosecute their R. R. Co. V. Hand, 7 Kan. 380 ; Bowen business. Therefore the better rule seems V. N. Y. Central R. R. Co., 18 N. Y. to be that, if the company has exhausted 408 ; Philadelphia, &c. E. R. Co. v. the best usual known methods and tests Derby, 14 How (U. S.) 486 ; Brown v. in ascertaining whether its roadway, rails, N. Y. Central R. R. Co., 34 N. Y. 404 ; carriages, etc., are in a sound and safe con- Virginia, &c. R. R. Co. V. Sanger, 15 dition, and continues this diligence or Gratt. (Va.) 230. They are not required vigilance at reasonable periods during their to g6 beyond the usual known tests, which use, it has done all that can reasonably be have been demonstrated by the best expe- required of it. Stokes v. Eastern Coun- rience to be generally sufficient to detect ties lly. Co., 2 F. & F. 691 ; Peoria, &c. ■ defects in the carriages, rails, &c. ; and if R. R. Co. v. Thompson, 56 111. 188; Heg«- such tests are fairly applied, it would be man v. Western R. R. Co., 13 N. Y. 9 ; impossible to say that they have been neg- Beers v. Housatonic, &c. R. R. Co., 19 ligent or remiss in their duty. If a rail Conn. 566. The statement of the rule of is apparently without flaw, and in re- diligence frequently met with in the cases, spouse to the usual tests employed to as- that the utmost care and vigilance is re- certain whether it is sound or not, still quired, is inaccurate, and is never applied, appears to be so, it would be exceedingly It is intended simply to mean that the ut- unjust to hold the company responsible most " practicable care amd diligence must for an injury resulting from its breaking, be used, consistent with the mode of trans- because it was in fact unsound. This portation." Meier v. Pennsylvania R. R. would impose upon carriers the duty of Co., 64 Penn. St. 225 ; Fuller v. Talbot SEC. 300.] CARE REQUIRED IN RELATION TO APPLIANCES. 1233 was used. It had run many thousands of miles, and liad been re- duced one-fourth or one-half an inch of its thickness. But although the wheel had been tested by the universal hammering in the first instance, it had not been subjected to that test after it had been reduced iu thickness by wear. The wheel was defective, it gave way, and hence the accident. The cause was tried in London before the Lord Chief Baron, when the jury returned a verdict for the plaintiff, for £2,000 damages. Channell, B„ said : " His lordship, after statii^g the nature of the action, said : ' With respect to the law there can be no doubt that; in point of law the defendants are bound to provide carriages and other appliances which shall present every reasonable prospect of safety. They are hound to guard against every source of danger that they can foresee. . . . They are not liable for any cause of danger that cannot be foreseen by the exercise of reasonable care and caution in prepar- ing for the journey ; and if, therefore, the entire cause of accident was this defective weld, which was not known, and could not, by any reason- able skill, care, or prudence, be discovered, then the defendants are enti- tled to your verdict.' The law in that respect was laid down as favorably to the company as the company had a right to expect. That was his lordship's observation at the commencement. of the sum- ming up ; at the end of the summing up, in substance, that direction is repeated, his lordship saying, it is important that every attention should be paid to the machinery, 'in order that the lives of the passengers may be placed in as much safety as possible.' He goes on to, say: ' The company, however, are not bo'und to do that which is ■impossible ; they are not hound to see that which is invisible, hit they are bound^ to take every precaution} It is entirely, gentlemen, for 23 111. 357 ; Pittsburgh, &o. E. E. Co. v. Co.,13 Ir. C. L. 543 ; Fordw. London, &c. Thompson, 56 111. 138. - Ey. Co., 2 F. & F. 730 ; Pym v. Great 1 The company is not an insurer, but Northern Ey. Co., 2 F. & F. 619 ; Eead- is only liable for negligence in respect to head v. Midland Ey. Co., L. E. 2 Q. B. the condition of its road-bed, cars, and 412; Ingalls v. Bills, 9 Met. (Mass.) 1 ;- ' other ai)pliauces. McPadden v. N. Y. &c. Crofts v. Waterhouse, 3 Bing. 319. There E. E. Co., 44 N. Y. 478 ; Keith v. Pink-, is a plain distinction between the liabiii- ham, 43 Me. 501 ; Ingalls v. Bills, 9 Met. ties of carriers of goods and of passen- (Mass.) 1 ; Sawyers. Hannibal, &c. E. B. gers. In Aston v. Heaven, 2 Esp. 533, Co., 37 Mo'. 240 ; Maury i. Talmage, 2 which was the case of an injury to a pas- McLean (U. S.), 157 ; Sullivan v. Phila- senger, Eyre, G. J., after carefully point- delphia, &c. E. E. Co., 30 Penn. St. 234; ing out the law as to the liability of car-' Meier v. Penn. E. E. Co., 64 id. 225 ; Mc- riers of goods to make good all losses ex- Clary V. Sioux City, &c. E. E. Co., 3 oept those happening from the act of God Neb. 45 ; Fairchild o. California Stage or the king's enemies, and the reason for Co., 13 Cal. 699 ; Burns v. Cork, &o. Ry. it, says : " I am of opinion the cases of 123i RAIL-WAYS AS CAKRIEES OP PASSENGERS. [CHAP. XVII. you to decide whether in your judgment they have done everything which their situation in providing conveniences for passengers re- losses of goods hj carriers and the present are totally unlike." Again, " There is no suuh rule in the case of the carriage of persons. This action stands on the ground of negligence alone." In Christie i>, Griggs, 2 Camp. 79, Sir James Mansfield says : " There is- a difference between a contract to carry goods and a contract to cany passengers. For the goods the car- lieu was liahle at all events. But he did not warrant the safety of the passengers. His undertaking as to them went no fur- ther than this, that as far as hwnan ca/re and foresight could go, he would provide for their safe conveyance." In Crbfts v. Waterhouse, ante, the observations attrib- utable to Best, C. J., clearly show that he did not think there was any warranty on the part of the carrier of passengers ; and Park, J., in the same case, says : " A carrier of goods is liable at all events. ... A carrier of passengers is only liahle for^ negligence." In Grote v. Chester, &c. Ry. Co., 2 Exch.'251, whprethe accident arose from the breaking down of one of the bridges of the railway, the case turned on what would or would not be negligence for which the company w^re answera- ble. Pakke, B., said : " It seems to me the company would still be liable for the accident unless he (the engineer) also used due and reasonable cai'e and em- ployed proper materials in the work." But there is nothing in the report to indi- cate that the court supposed there was any warranty of the safety pf the bridge. In Ford V. London, &p. Ry. Co., 2 F. & F. 730, the plaintiff was injured by the ten- der of the train being thrown ofl' the line, and one of the causes was alleged to be the defective tire of one of the wheels of the tender. Eule, C. J., in his direction told the jury : " The action is grounded on negligence. Negligence is not to be de- fined, because it involves some inquiry as to the degree of care required, and that is the degree which the jury think is reason- able to be required from the parties, con- sidering all the circumstances. The rail- way company is bound to take reasonable care to use the best precautions in known practical use for securing the safety of their passengers." There the defect was in the tire of a wheel of the tender of the train by which the plaintiff travelled. And no suggestion that a warranty of its sound- ness existed was made in the case. In Stokes V. Eastern Counties By. Co., 2 F. & F. 691, an accident happened in con- sequence of the breaking of the tire of the rear wheel of the engine. The tire broke from a latent flaw in the welding. The trial lasted six d^ys ; and the questions mainly were, whether the flaw was not visible, and whether by the exercise of care it might not have been detected. The Lord Chief Justice commences a full direction to the jury by saying, 2 F, & F. 693 : " The question is, whether the break- ing of the tire resulted from any negli- gence in the defendants, or their servants, for which they are responsible." The la- tent defect in the tire was admitted to be the cause of the accident ; but the jury having found, in answer to specific ques- tions, that there was no evidence that the tire was negligently welded, and that the defect had not become visible, and having in other respects negatived negligence, the verdict was entered for the defendants. Undoubtedly the earner of goods by sea, like the carrier of goods by land, is bound to carry safely, and is responsible for all losses, however caused, whether by the unseaworthiness of the ship or otherwise ; and it does not appear to be material to inquire, when he is subject to this large obligation, whether he is also subject to a less one. In the case of Lyon v. Mells, 5 East, 428, it was stated by the court that the carrier of goods is bound to have a seaworthy ship, but this only as part of his general liability. It was admitted in that case by the attorneys for both parties that the liability of the carrier in all its breadth is merely a liability for all losses, however happening, except by the act of God and the king's enemies. In Bums v. Cork, &o. Ry. Co., 13 Ir. Rep. C. L. (n. s.) 543, the court said that the averments in the defendant's plea were all consistent with gross and culpable negligence, and on that ground gave judgment for the plaintiff. The judgment, however, plainly shows SEC. 300.] CAEB BEQUIEED IN KBLATION TO APPLIANCES. 1235 quired of them, and whether there was any deficiency, or whether they entirely and perfectly discharged that duty. If they entirely performed it, I think they are entitled to your verdict. If *they did not, if there was anything that might reasonably be required of them under the circumstances which in your judgment they did not perform, I think they would be liable, and it would be entirely for you to say what damages the plaintiff would be entitled to in the event of your thinking him entitled to your verdict.' Now, it is impossible, I think, that the rule could be laid down more correctly than it was, both at the commencement and, the conclusion of his lordship's summing-up. But there were particular passages in the course of the summing-up which were excepted to. This passage was excepted to. Mr. Bramwell, an engineer, had been called on the part of the plaintiff, and in the course" of his cross-examination he said : ' I know of no n;ode of discovering the defect ; if the tire be struck, that may or may not detect it' Now, it is quite clear, looking at the cross-examination of Mr. Bramwell, and of all the other witnesses, what was meant to be stated was this : there was no test that, was absolutely fixed, — no test that, in every instance, would turn out to be sure and successful ; but it cannot be con- tended a test ought not to be adopted, if it is a useful one and m^y reasonably be expected to bring about the result, because it is not absolutely fixed. Now, the particular remark that was objected to was this : ' In all probability, if this tire had undergone the process, not merely of ringing it with a hammer to see whether it was sound, put of hammering it all roiind and all over, the defect would have been discovered,^ because there can be no doubt in regard to a bell that the coart did not mean to declare given case there would seem to he Ho that there is an ahsolute undertaking that ground for holding the- company ch^rge- the vehicle shall be free from defects. The able with negligence, and the same rule language is, " frm from defects so far as applies as to all other recognized tests for human care and foresight can provide, discovering other defects. There is no and perfectly roadworihy." The court re- question but that a railway company is re- fer with approbation to the language of quired to use reasonable care in all such Sir James Mansfield and Aldeksox, J., matters, and the question as to whether which shows that they were' disposed to it has been guilty of negligence in any adopt the views of those learned judges, of these respects is for the jury. Hegenian and to place the liability, not on a war- v. Western R. E. Co., 13 N. Y. 9 ; Balti- riinty, but on the obligation to exercise more, &c. , E. R. Co. v. Wightman, 29 care and foresight. Graft. (Va.) 431 ; McElroy «. Nashua, &c. 1 The test adopted in this case is the R. R. Co., 4 Cusli. (Mass.) 400 ; Virginia, one usually employed by railway com- &c. B. K. Co. v. Sanger, 15 Gratt. (Va.) panics, and seems to he the best which is 230. In. Stokes v. Eastern Counties Ey. known ; and that being so, if applied in a Co., 2 F. & F. 691, 693, 694, Chief Justice 1236 RAILWAYS AS CAREIEKS OF PASSENGEES. ' [CHAP. XVII. which is now silent (but which we heard for some time as if the whole material of the clock at Westminster were perfect), it was cracked, but continued to strike, and nobody was aware of it. Sotaebody observed, on a rainy day, when the bell was struck and the water trickled down, it had a tremulous motion on each side, and the vibrations were not perfectly equal. The man called some- body to watch it, and then they discovered that the bell was cracked. So that there can be no doubt that merely going to a tire and strik. ing it with a hammer will not tell you.' That is the substance of my lord's observation. It was an observation founded on expe-. rience, — that the test of the hammer upon the tire would enable you to see whether tlie tire would ring where it was cracked in one part. But what was contended for on the part of the plaintiff was, the tire should have been hammered all over ; and there was a body of evidence and an important witness to that point. There was CocKBUBN thus expressed himself: "You are entitled to expect at tha hands of a railway company all that skill, care, and prudence can do to protect the public against danger and accidents, but you must carry that principle into application as reasonable men. ... If you are of opinion that the flaw or crack had become visible prior to the accident ; that upon careful examination — not with the aid of scientific authorities and scientific instru- ments, but on an ordinary, reasonably proper and ca/refv,l examination, such as all feel ought to be made before the en- gines are used on which the safety of a whole train might depend — this flaw might have been discovered ; and that either the examination did not take place, or if it did, and the flaw was discovered, but the man, with careless disregard of his own safety "and of others whose lives and limbs might be involved, treated all this vrith supine and reckless indifference, then undoubtedly there is negligence estab- lished, for which the company are and onght to be responsible." In Ford v. London, &c. By. Co., 2 F. & F. 782, Chief Justice EiiLB, in summing up the case to the jury, said ; " The action is grounded on neg- ligence. The railway company is bound to take reasojiable care, to use the best pre- cautions in knovm practical ttse for securing the safety and convenience of the passen- gers." See also Pym v. Great Northern Ey. Co., 2 F. & F. 621, per Chief Justice CooKBUKN, to .the same effect. , In Ingalls V. Bills, 9 Met. (Mass.) 1, 15, Hubbahd, J., says; "Carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, suffi- cient, and suitable coaches, harnesses^ horses, and coachmen, in order to prevent those injuries which human care and fore- sight can guard against ; and if an acci- dent happens from a defect in the coach which might have been discovered and remedied upon the most careful and thor- ough examination of it, such accident must be ascribed to negligence, for which the owner is liable in case of injury to a pas- senger happening by reason of such acci- dent. On the other hand, where the accident arises from a hidden and internal defect, which a careful and thorough ex- amination would not disclose and which could not be guarded against by the exer- cise of a sound judgment and the most vigilant oversight, then the propiietor is not liable for the injuiy, but the mis- fortune must be borne by the snff'erer, as one of that class of injuries for which the law can aff'ord no redress in the form of a pecuniary recompense." This extract from the judgment of Hubbard, J., was adopted by the court in Readhead v. Midland By. Co., as accurate. SEC. 3€0.] CAEE KEQTJIRED IN EELATION TO APPLIANCES. 1237 abundant evidence to show, when the tire had been re-turned, as it is called, if it had been hammered all over, in all probability this defect would have been discovered. "It appears that there is nothing in my lord's observations that can warrant any objection on the score of misdirectioui ... A wit- ness had said, 'it should have been hammered all rqund.' My lord goes on to explain what is meant by that : ' What he means by that, I suppose, is, that they should not merely strike it with a hammer to see whether it would ring, which, no doubt, a cracked piece of metal would, but they should have hammered.it all round to ascertain ; and certainly, as the iron becomes less and less, no doubt that is a sort of care which should be taken, because by the hammering you may stumble upon some particular spot that is de- fective. One of the witnesses for the defendants told us to-day that there was a thickness as of a piece of paper — a thickness over the imperfection in the "weld, and if you came to hammer there, there Is no doubt, I think, that you would'discover that.' Now, ray lord certainly expresses his own opinion ; if the weld had been reduced to this, thinness, as appeared from one of the defendants' witnesses, in his judgment, if it had been hammered all over, the, defect would have been discovered. Though my lord expresses that opinion, he does not withdraw it from the consideration of the jury, but he goes on to say: 'You must judge for yourselves.' I 1 The question as to whether the Gom- 26 Ga. 250 ; Webh v. Portland, &c. K. R. pany has been guilty of negligence or not, Co., 57 Me. 117 : Memphis, &ft. R. R. Co. is for the jury in all cases where there is v, Whitfield, 44 Miss. 466; Baltimore, &e. any conflict of evidence. Metropolitan R. E. Co. v. State, 29 Md. 420; Kennayde Ry. Co. V. Jackson, L. R. 3 App. Cas. 193; v. Pacific R. R. Co., 45 Mo. 255 ; Huyett Freemouth v. London, &c. Ey. Co., 10 v. Philadelphia, &c, R. E. Co., 23 Penn. C. B. N. s. 89; Gaggv. Vetter, 41 Ind. 228; St. 373 ; Key v. Penn. E. R. Co., 65 id. Hawley v. Northern Central R. R. Co., 17 263; Lehigh'Valley R. R. Co. v. Hall, 61 Hun (N. Y.), 115; Ernst i>. Hudson River id. 361; Detroit, &c. E. E. Co. v. Van E. E. Co., 35 N. Y. 9 ; Casey v. N. Y. Steinberg, 17 Mich. 99 ; Indianapolis, &o. Central, &c. E. E. Co;, 78 N. Y. 518; E. E. Co. v. Evans,, 88 111. 63; Baltimore, Kansas Central iE. R. Co. u. Fitzsimmons, &o. K. E. Go. b. Boteler, 38 Md. 568; 22 Kan. 686; Central Branch Union Pacific McNamara v. North' Pacific R. R. Co., 50 R. E. Co. V. Hatham, 22 id. 41 ; Houston, CbiI. 581 ; Gatawissa. E. E. Co. v.. Arm- Ac. E. R. Co. V. Miller, 51 Tex. 270 ; Ab- strong, 52 Penn. St. 782; Johnson «. West bett V. Chicago, &o. R. E. Co., 30 Minn. Chester, &e. E. R. Co.^ -70 Penn. St. 357. 482; Simmons v. New Bedford, &e. R. E. But where the facts are admitted, or not Co., 97 Mass. 361 ; French v. Taunton disputed, the question is for the court. Branch R. E. Co., 116 Mass. 537; Craig Goldstein v. Chicago, ffic. E. E. Co., 46 V. N. Y., &o. E. E. Co., 118 Mass. 431; Wis. 404 ; Sioux City, &o. E. E. Co. i;. Tyrell v. Eastern E. R. Co., Ill Mass. Staut, 17 Wall. (U. S.) 657; Penn. E. R. ,546; Cohen v. Eureka, &c. E. E. Co.,14 Co. «. Eathget, 32 Ohio, St. 66; Cleveland, Nev. 376 ; Macon, kc. E. E. Co. », Winn, &c. E. E. Co. v. Crawford, 24 Ohio St. 1238 EAILWAYS AS CAREIERS OF PASSENGERS. [CHAP. XVII. have no doubt, gentlemen, that if not all of you, a great many of you, must have the means of judging upon that subject quite as well as any of the witnesses, and probably much more than myself.' That was an opinion certainly given by my lord as to a point that arose in the course of the evidence, ^- an opinion in which few would disagree ; but whether it be right or wrong is not the question we have to de- termine. The matter was not submitted to the jury as a matter of law ; it was not decisive of the evidence ; but the question was left to the jury that they might exercise fully and freely their judgment upon the subject. Now, the only other passage that was objected to was a passage to this effect : ' I cannot help saying, in passing, that it appears to me, before an old tire is ever sent to be re-turned, ,and put in use for the purposes of a leading wheel, it ought really to 631 ; Lewis v. Baltimore, &c. B. Co., 38 Md. 588 ; Payne v. Reese, 100 Penn. St. 301. If during the progress of the trial, it appears, from the undisputed evidence, that the plaintiff himself has been guilty of some act or omission materially con- tributing to the injury, the court will generally direct a verdict for the defend- ant. Gonzales v. N. Y., &c. R. Co., 88 N. Y, 440 ; Donaldson v. Milwaukee, &o. E. Co., 21 Minn. 293 ; Penn. B. Co. v. Weber, 76 Penn. St. 157 ; Penn. E. Co. V. Ogier, 35 id. 60 ; Phila., &o. R. Co. v. Hassard, 75 id. 367 ; Central R. Co. v. State, 29 Md. 420 ; Baltimoi'e, &c. B. Co. V. Shipley,'' 31 Md. 368 ; MoMahon v. Baltimore, c. R. Co., 39 Md. 438; Bal- timore, &c. R. Co. v. Fitzpatrick, 85 Md. 32 ; Carlin v. Chicago, &o. R. Co., 87. Iowa, 816! ; Fleming v. Western Pae. R. Co., 49 Cal. 253 ; Sioux City, &c. R. Co. II. Staut, 17 Wall. (U. S.) 657. In Hath- aWay v. East Tennessee, &o. B. Co., 29 Fed. Bep. 489, the rule is stated to be that the que.stion of negligence should go to the jury ; 1. When the facts, which, if true, would constitute ' negligence, are controverted. 2. When such facts ai-e not disputed, but there may be a fair dif- ference of opinion as to whether the infer- ence of negligence should be drawn. 3. When the facts are in dispute and the inferences to be drawn therefrom are doubtful. See the subject discnssfid at some length in 16 Am. & Eng. Ency. Law, pp. 463 d seq. There are matters connected with the operation of railways so intimately blended with human experience that the courts will take judicial , notice of them, — as, the power and speed with which they are operated, and the danger involved in cer- tain acts relating thereto ; consequently, if, by the undisputed facts, the plaintiff is shown to have done, or omitted to do, certain acts which human experience teaches are negligent, and which must essentially have contributed to the in- jury, it will either direct a verdict for the defendant or order a nonsuit. Penn. B. Co. ti. Rathgeb, 32 Ohio St. 66; Chaffee v. Boston, &c, R. Co., 104 Mass. 108 , Snow 11. Housatonic B. Co., 8 Allen (Mass.), 441; Allyn v. Boston, &o. E. Co., 105 Mass. 7-7; Lake Shore, &c. B. Co. V. Miller, 25 Mich. 274 ; Cleveland, &a. R. Co. V. Crawford, 24 Ohio St. 631 ; Thurher v. Harlem, &c. B. Co., 60 N. Y. 826 ; Deville v. Southern Pac. R. Co., 5 Cal. 388 ; Wyatt v. Gt. Western By. Co., 6 B. & S. 709 ; Chicago, &c. B. Co. V. Duney, 26 111. 255 ; Steele v. Central B. Co., 48 Iowa, 109 ; Berry v. Central E. Co., 40 id. 564 ; Central, &o. B. Co. V. Dixon, 42 Ga. 327 ; Harvey v. Eastern R. Co., 116 Mass. 269 ; Richmond, &c. B. Co. V. Morris, 31 Gratt. (Va.) 200; Ohio, &o. R. Co. V. Schiebe, 44 111. 460 ; Knight V. Pontchartrain E. Co., 23 La, An. 462 ; Galveston, &c. E. Co. v. Gierse, 51 Tex. 189 ; Nelson v. Atlantic, &c. B. Co., 68 Me. B93 ; Quinn v. 111., Cent. E. Co., 51 111. 495 ; Bancroft v. Boston, &c. B. Co., 97 Mass. 275; Beers v. Housatonic SEC. 300.] CARE REQUIRED IN RELATION TO APPLIANCES. 1239 be hammered all over ; because there may be (and this is an illustra- tion of it) a wheel that has performed thousands of miles with per- fect safety, which has apparently got the best character that a wheel can have, but it turns out to have been ground down until you came to within, according to the case of the defendants, a surface not thicker than paper, that separated you from an imperfect weld. You are quite as well able- to judge as I am. If that were accu- rately tested by hammering over every part of it, you would say whether that would not certainly be discovered. If there was noth- ing but the thickness of a piiece of paper to separate it, it might not be visible to the eye, but it must be ascertainable by a hammer, which would certainly give a different'sound when you came to that spot.' Again my lord expresses an opinion in which I entirely concur, and it appears to me to have been correct upon the evidence. But my lord did not express his opinion at all to the contrary, or fetter the jury; the question was left fully and freely to them to exercise their own judgment upon.^ It appears to me there is no ground whatever for saying there was any misdirection of which the- defendants ha^e a right to complain, and it really was hardly insisted on that there was no evidence to go 'to the jury; it is enough to say, the evidence of Mr. Bramwell, the evidence of Sir C. Fox, the evidence of Mr. Braithwaite, and the evidence of Mr. May, formed a strong case on the part of the plaintiff to go to the jury, which my lord could not have refused to leave to them. I am clearly of opinion that, had he done so, the plaintiff would have had good ground for excepting that the evidence had not been sub- mitted to the jury as it ought to have been. Then, as to the case of the verdict being against the weight of evidence, no doubt there was a strong body of evidence on the part of the defendants. No doubt R. Co., 19 Conn, S66; Frost ». Gd. Trunk Conn. 284; O'Flaherty v. Union B. Co., R, Co., ].0 Allen (Mass.), 887 ; Baltimore, 45 Mo. 70 j Railroad Co. v. Gladman, 15 &o. R. Co. V. Wilkinson, 30 Md. 224; Wall (U. S.) 401; Schierhold v. North Chicago, &c. R, Co. v. Mills, 91 111. 89. Beach, &c. K. Co., 40 Cal. 447; Sleeper 1 The court defines,the rules or standard v. Sandacon, 52 N. H. 224 ; Eckert ». L. of care which should be observed, and the I, R. Co., 43 N. Y.' 502 ; Filer v. N. Y. jury are to say whether according to such Central R. Co., 49 N. Y. 47 ; Mayo o. standard the defendant has b?en guilty of Boston, &c K. Co., 106 Mass. 27l ; State negligence. Baltimore, &o R. Co.w. State, v. Manchester, &c. R. Co., 62 N. H. 563; 36 Md. 866; Detroit,' &e. R. Co. ». Stein- Wilton v. Middlesex R, Co., 107 Mass. > berg, 17 Mich. 118; Metropolitan Ry. Co. 508, Crissey v. Hestonville R. Co., 75 V. Jackson, 2 C. P. Div. 125 ; Memphis, Penn St. 83 ; Pittsburgh, &o. R, Corv. &e. R. Co. V. Whitfield, 44 Miss. 466 ; Caldwell, 74 id. 421 ; East Saginaw, &o. Brennan v. Fair Haven, &c. R. Co., 45 R, Co. v. Bohn, 27 Mioh. 603. 1240 E'AILWAYS AS CABRIEB8 OF PASSENGERS. [CHAP. XVII. many witnesses were called, witnesses of experience and respectabil- ity, and one would not necessarily be dissatisfied if the jury had. found upon the evidence a verdict for the defendants. On the other hand, there was strong and positive evidence on the part of the plaintiff. I cannot say the jury have come to a wrong conclusion. I am not called on to say I should have found the same verdict my- self.^ I can see no ground for expressing any judicial dissatisfaction 1 If there is amy evidence of negligence which would support a verdict against the defendant, the question will not be with- drawn from the jury. In Filer v. K. Y. Central R. Co., 49 N. Y. 50, Allen, J., said: " Ordinarily the question of negli- gence is one of mixed law and fact, and it is the duty of the court to submit the same to the jury with proper instructions as to the law. What is proper care is sometimes a question of law, when there is no controversy as to the facts, but where there is e^vidence tending to prove negli- gence on the pairt of the defendant, and the question arisies whether the plaintifif has by his own fault Contributed to the injury, it is ordinarily for the juiy. If the evidence is of such a character that a verdict for the plaintiff would be clearly against evidence, the question is one of law and should he de- cided by the court." This rule is. concise and accurate. It is not enough that there is some evidence of negligence upon the part of the defendant, if it is so slight that a verdict predicated upon it ought not to stand ; but upon the other hand, if it is of such a character that a verdict predicated upon it would be sustained, it should be permitted to go to the jnry. Bauleo v. N. Y. Central R. Co., 59 N. Y. 336 ; .Tuomey v. Ry. Co., 8 C. B. n. s. 146 ; Colton V. Ward, 8 C. B. n. s.' 568 ; Mc- Mahon v. Lennard, 6 H. L. Cas. 970 ; Avery v. Bowden, 6 E. & B. 973. That negligence is a mixed question of law and fact, seei Trow v. Vt. Central R. Co., 24 Vt. 487 ; Karle v. Kansas City E. Co., 55 Mo. 476 ; North Penn. K. Co. w. Robinson, 44 Penn. St. 175 ; Wright v. Maiden, &o. E. Co., 4 Allen (Mass.), 288 ; Greenleaf ». Dubuque, &c. R. Co., 88 Iowa, 62 ; Fernandes v. Sacramento City R. Co., 52 Cal. 46 ; Cleveland, &o. R. Co. V. Terry, 8 Ohio St. 470 ; Johnson V. Winona, &c. R. Co., H Minn. 296 ; Bannon v. Baltimore, &c. B. Co., 24 Md. 108 ; Baltimore, &c. R. Co. v. Breinig, 25 id. 378 ; Greenleaf v. 111. Central R. Co., 29 Iowa, 14. A mere scintilla uf evi- dence is not sufficient to sustain the burden of proof. Before the evidence is left to the jury, there may be in every 'case a pre- liminary question for the presiding judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly find a verdict for the party producing it, upon whom the burden of proof is imposed. Cotton v. Wood, 8 C. B. N. s. 668; Railroad Co. v. Good- man, 62 Penn. 329; Tourtellot v. Rose- brook, 11 Met. yMass.) 460; Losee v. Buchanan, 51 N. Y. 476 j McCuUy v. Clarke, 40 Penn. 399 ; Hammack v. White, 11 C. B. N. s. 688 ; Holmes v. Mather, h, R. 10 Ex. 261 ; Ellis v. Ry. Co., L. R. 9 C. P. 561 ; Burton v. Railroad Co., 4 Harr. (Del.) 252. Judges are not required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, finless the evidence is of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party in- troducing such evidence. Ryder v. Womb- well, L. B. 4 Ex. 39. Before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whethter there is literally no evidence, but whether there is any upon which a jury can property proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed, - If the evidence is such that the court would consider it proper to set aside a . verdict based upon it, the case should not be submitted to the jury, but a non-suit should be ordered, or the jury should be directed to find for defendant. Plea- sants V. Fant, 22 Wall. 120 ; 16 Am, & Eng. Enoy. Law, p. 467 ; Com'rs, &o. «. SEC. 300.] CABE KBQtTIEED IN KBLATION TO APPLIANCES. 1241 » with the verdict of the jury. I would refer to one witness as a witness of very considerable importance — Sir Charles Fox — who gave evidence having a most material hearing upon the case. He was engaged largely in the manufacture of Wheels of all descriptions, and he was asked whether he adopted any process to test the tire. He was asked, ' Do you hammer it ? ' and he says : ' The process upon which I have manufactured all my wheels has been this, to let all the different parts of the work be done by piecework, so that if a man found a defective bar he did not get paid for bending. If a man had to bend a defective bar, or bend a good bar, and bent it im- properly, we did not pay for them, so that every man was looking b^ck through the whole process of the manufacture up to the last ; and then we have a gentleman to whom we pay 300 1, a year to ex- amine every wheel.' So that this gentleman kept a person in his- employ at a considerable salary for no other purpose than to test wheels when they were made. He says they are tapped with a hammer, and when he is asked how tires are tested, he says no de- fect would be passed over with the hammer. No witness pretended Clark, 94 U. S. 278; Giblin ii. MeMuUen, L. R. 2 P. e. App. 317, 335 ; Improve- ment Co.'W. Munson, 14 Wall. (U. S.) 442; Pleasants v. Fant, 22 id. 120 ; Parks v. Ross, 11 How. (U. S.) 373 ; Merchants' Bank!). State Bank, 10 Wall. (U. S.) 637; Hickman v. Jones, 9 id. 201.' Where a person seeks to charge a railway company with negligence in not seasonably remov- ing a car which incumbered a highway crossing, and in consequence of which an accident occurred to the , plaintiff, an in- struction _ by the court that if the jmy should find that the servants of the com- pany honestly believed they could not move the oar without help, and that "they exercised ordinary care and prudence in that judgment, they are not guilty, is sufficiently favorable to the defendants, and fiirnishes no ground of exception.' Paine v. Grand Trunk R. R. Co.,'58 IS. H. 611. In an action again|t a railroad com- pany for injury to a horse caused by its foot being caught between the rail and the jjlanking at a street-crossing, the evidence Was conflictingi It was proved by plain- tiff upon the trial that the plark was so placed that there was a space of a little more than three and one-quarter inches VOL, II. — 28 between the plank and the rail, which space was for the passage of the flange of the car-wheels ; and the evidence of the plaintiff showed that two and one-quarter inches was all which was required for that purpose, and hence the space was one iiich> wider than it should have been ; and this caused the horse's hoof to get into the open space and to be caught by the toe-calk under the rail. It also appeared from plaintiff's evidence that the plank was from one-quarter to three-eighths of an inch higher than the top of the rail. The court at trial nonsuited plaintiff on the ground that there was no evidence of negli- gence on the part of defendant in construct- ing the crossing. It was held error. The case is within the rule that it is a matter of right in the plaintiff to have the issue of negligence submitted to the-jury when it depends upon conflicting evidence or on inferences to be drawn from circumstances in regard to which there is reason for a difference of opinion among intelligent men. Wolfkiel v. Sixth Ave. E. R. Co., 38 N. Y. 49; Weber v. N. Y. Central, &c. R. E. Co., 58 id. 451 ; Hart v. Hudson River E. R. Co., 80 id. 622; Payne u Troy, & Boston R. R. Co., 83 N. Y.. 572. 1242 EAILWAYS A3 CABEIBRS OP PASSBNGEltS, [CHAP. XVII. to say it was an absolute and positive test, but there is no excuse for not adopting it, if it can be reasonably expected to produce a satis- factory result: This' was the universal process adopted by this gentleman at a considerable cost and expense. He is asked this question : ' Have you found any returned to you after being passed by you as complete ? ' 'We guaranteed aU the wheels we made for twelve months, and having turned out 20,000 wheels for several years, I think the whole amount of our guarantee has been twenty- four.' Now, the wheel in question had been reduced a considerable size; it was reduced to a small thinness; it was blocked and re- turned, and if this process had been adopted, not to hammer any one part to see whether it would ring, but to hammer it all over, as was the universal practice on the part of Sir Charles Fox, a practice carried, out at a considerable expense, it was for the jury to say whether the defect might not have been discovered. I repudiate the notion altogether that a process ought not to be adopted, because of necessity you would not arrive at a positive test. It seems tome there is no ground for saying the verdict is against the weight of evidence, and that a new trial should be granted. Therefore, having at my lord's request gone carefully through the evidence, I repeat the opinion I was prepared to give when the rule was moved, that the verdict ought to stand." ^ , • Pollock, C. B., in the same case, turning to the eridenoe, certainly it ap- said : " I entirely agree with the rest of peared there was abundant material for the court on the subject of refusing the the remark that was presented to the jury rule why there should not be a new trial, by me, but which was left entirely to them. When Mr. Bovill moved this rule, he not at all pressing my opinion upon them, certainly took a very strong view of the but stating, it appeared to me that any case on the part of the defendants. It ap- person conversant with machinery, and peared to me it was desirable that the the ordinary business connected with such matter should be looked into with very matters, would probably be far better able great care, in order that no mistake might to judge than I was of the point. There be made. I am very much obliged to my was much other important matter upon learned brothers ..who have taken the which the jury might have decided, and trouble of going through the short-hand very likely did decide, the case ; but as writer's notes which Mr. Bovill furnished far as this point was concerned, the ques- us with. A very strong statement made tion was this : about the nature of the by Mr. Bovill, I own rather startled me. accident there was no doubt whatever ; it I certainly did not recognize in his state- arose from an imperfect weld in the forma- ment of the matter anything like what tion of a wheel, — that was the driving- I remember to have been said in the course wheel. A driving-wheel is formed in the of the trial. According to his statement, first instance with a thickness of 2^ inches; certainly, at one time, there was no evi- it is allowed to run some time, and is then dence whatever to support the view that ground down, or re-turned, for the purpose had been presented to the jury, as he said, of making it again smooth, and this opera- under the authority of the Bench. On tion is performed about three times ; ulti- SEC. 300.] OAEB BEQTTIEED IN BBLATION TO APPLIANCES. 1243 The rules stated in this case seem to us to be accurate, particularly when coupled with another rule, that the mere fact that the vehicle mately the thickness of the wheel is re- duced from 2J or 24 to 1^ ; if it happens to he helow IJ they consider it is worn out, and do not continue it in the service. Ahont three times is the number of times that a wheel may he re-turned, or twice it may he re-turhed, so that it is put into use with three dilferent thicknesses. Now, the first time, hefore it is used at all, it is hammered all over. I cannot understand the expression, but the expression in the evidence was, ' hammered all round ; ' which I apprehend to be testing with the hammer, not merely whether it will ring, but whether it is spund in every part. Now, if it be worth while to do that when the wheel is first in its state of newness, in order to test it hy applying the hammer to every part of it, to see whether it be sound or not, it surely, must be worth while, every time you take away from it a quarter or half an inph of its thickness, in order to prepare it for a fresh journey. That was the question the jury had to de- cide ; and I agree with my learned brothers that the law was laid down correctly, and as favorably for the defendants as it could be. The question then would be, — Bid they iise any reasonable precautioh in order to discover whether the wheel in its last con- dition was fit for service ? Why, it ap- peared to be perfectly clear upon the evi- dence that, though they had tested the wheel by the universal hammering in the first instance of applying it to the purposes of a locomotive, it had never been sub- jected to it since; and an imperfect weld, which may be imperceptible to the ham- mer when the wheel is 2J inches thick, may be quite perceptible wlien the wheel is reduced to IJ. Therefore it was a ques- tion for the jury. There was evidence that they actually applied the^ test when the wheel was new ; there was evidence that they had not applied it when the wheel was turned the first time, and when it was turned the second time; and I think it is no answer in fact or law to say that ■ the test is not decisive. It might have escaped the discovery notwithstanding the test had been applied, because at the time of the accident all parties were per- fectly agreed that it was an imperfect weld, which gradually came to the surface at the time of the accident. The witnesses for the plaintifi' said, in their judgipent it was apparent that the thinness of paper had been worn through. By the evidence of the witnesses for the defendants, the thickness was no more than the lihickness of a bit of paper ; and the question is whether, if it had been hammered, it would not have disclosed by the sound, immediately, that there was some imper- fection below, and that it was not sound. Under these circumstances I perfectly con- cur in the opinion expressed by my learned brothers, that there should be no rule ^n this case." Hegeman ». Western R. E. Co., 13 N: Y. 9 ; Ingalls v. Bills, 9 Met. (Mass.) 1 ; Scott v. Ohio, &c, R. R. Co., 13 Leg. Int. (Penn.) 336 ; Meir v. Penn. R. R. Co., 64 Penn. St. 225. In Robin- son u. N. Y. Central R. R. Co., 20 Blatchf. (U. S. C. C.) 338, it was held that the presumption of negligence arising from the bursting of a boiler may be overcome by proof of the application of every test recognized by experts as necessary, and that it need not be shown that every known test was applied. In McPadden u N. Y. Central R. R. Co., 44 N. Y. 478, 4 Am. Rep. 705, the train on which the plaintiff was riding was proceeding westward from Brockport, when two cars were thrown from the track by a broken rail, and he was injured. The train had stopped at Brockport and had there met a ti'ain coming east. At the trial the witnesses all concurred in the belief that the rail was broken in consequence of the coldness of the weather. The rail appeared to be perfectly sound. A track-walker had been over the road at the point where the accident occurred just before the eastward train had passed over, and found the track in good order, but he had no time to examine it again before the westward train reached the point. The conductor and engineer of the eastward train testified that they felt no jar or jolt, as they would have done had the rail beeen displaced or broken. The engineer of the westward train (the engine of which kept the 1244 KAILWAYS AS CAEEIEES OP PASSENGERS. [CHAP. XVII. was defective prima fetcie raises a presumption of negligence.^ There seems to be an inconsistency in holding the company np to a more rigorous rule of liability as to cars than prevails in reference to the track over which the cars are propelled. If it be said that the reason results from the fact that the cars are manufactured, and therefore the company is bound, at its peril, to kn'ow of the existence of latent defects,' it may be answered that the same is true of the track. It is manufactured, so to speak, and the same rule should apply to that as applies to the cars. • ' In the selection of rails and other materials of. which its track is composed, as well as in the construction of its roadway and bridges, the company is bound to exercise the highest degree of reasonable care, and to apply all those tests usually applied, of which are known, for ascertaining their suitableness ; and having done that, and keeping up the same degree of vigilance in ascertaining whether it subsequently becomes defective, it is not responsible for injuries resulting from defects in spite of such vigilance? It niust exercise the highest degree of reasonable care in all respects involving the track) testified that he discovered no break or displacement when his engine passed the point ; and the conductor testified that he could feel the jolt when a rail was displaced, that he was in the last car and judged that there was no broken rail with- in three feet of the last ear. The plain- tiffs counsel requested to go to the jury on the question whether the rail was broken before it was reached by the west- ward train carrying plaintiff. The court denied this request. The plaintiff ex- cepted ; the court then, on motion of the defendant, non-suited the , plaintiff. The General Term granted a new trial, and the defendant appealed. The Court of Appeals sustained the non-suit, oveiTuling Alden v. N. Y. Central R. Co., 26 N. Y. 102 ; 82 Am. Dec. 401. 1 Frink v. Potter, 17 111. 406 ; Ingalls V. BilLs, 9 Met. (Mass.) 1 ; 43 Am. Dec. 346 ; Dawson v. Manchester, &c. Ry. Co., .5 L. T. N. s. 682 ; BrignoH v. Chicago, &c. R. Co., 4 Daly (N. Y.), 182; Deyo.i). N. Y. Central R. Co., 34 JT. Y. 9 ; 88 Am. Dec. 418. It has been held that an acci- dent resulting from the misplaceihent of a switch,' by "some evil-disposed person," not connected with the company, the com- pany being chargeable with no fault, is an inevitable accident for which the company is not responsible. Frink v. Potter, 17 111. 406; Deyo v. N. Y. Central E. Co., 34 N. Y. 9; 88 Am. Dec. 418. " Nashville, &c. K. Co. i-. Messino, 1 Sneed (Tenn.), 220; Deyo.t<. N. Y. Cen- tral R. Co., 34 N. Y. 9. In Frink ». Potter, 17 111. 406, where a passenger was injured by the breaking of an axle from the effect of fro.st, the court held that, if the defendant was guilty of any, even the slightest negligence in not providing against such a result, it was liable. This is equivalent to holding that, if by the exercise of any reasonable precaution the result could have been averted, the de- fendant was bound to exercise such pre- caution, and failing to do so, was liable for negligence. See also Dawson v. Manches- ter, &c. Ry. Co., 5 L. T. n. s. 682; To- ledo, &c. R. Co. V. Apperson, 49 111. 480 ; Reed v. N. Y. Central R. Co., 66 Barb. (N. Y.) 493; Gonzales v. N. Y. Central R. Co., 39 Hw. Pr. (N. Y.) 407. But see McPadden v. N. Y., &c. R. Co., 44 N . Y. 478, 4 Am. Rep. 705, where it was held that the breaking of a rail by frost or extreme cold does not impose liability upon the company for the consequences. SEC. 300.] CAKE KEQUIEED IN EELATION TO APPLLA.NCES. 1245 safety of passengers, and if guilty of any, even the slightest negligence, it is responsible for all injurious consequences.^ In reference to its boilers and engines, the company is only bound to apply such tests as are known and usual to ascertain their sound- ness, and is not responsible for an injury occurring by a defect not as- certainable by such tests ; ^ but the jury may infer negligence from the very fact of its proving defective, and may give to this presumption more force than to the evidence of those whose negligence presuma- bly caused the injury.^ And the same rule prevails as" to rails and other appliances of the business. From the fact that a rail breaks and produces an injury, negligence may be inferred ; but this presump- tion may be overcome by showing that the rails were properly tested before they Yfere laid; and that they were properly laid and spiked to sound and sufficient ties.* It is not enough for the company to show that the rail was free from defects and of sufficient size and weight, but it must also show that it was properly laid,^ and that sufficient space was left for the expansion or contraction of the rails under the extremes of heat and cold incident to the climate.^ Having established due care in these respects, for an injury resulting from the breaking of a rail by frost,'' or other cause over which it had no control and by reasonable watchfulness could not have prevented, it is -not responsible. The same rules apply to bridges. It is not enough to show that they were erected by a contractor wKo was skilled in the business, but it must be shown that they were 1 Gaynor v. Old Colony E. Co., 100 56 Barb. {N. Y.) 493, the rails were laid Mass. 208; MoPadden u. N. Y. Central with spaces of only one-fourth of an inch E. Co., 44 N. Y. 478. The fact that between them, when it was shown that the the vehicle or track is defective and an usual expansion . is from three-eighths to injury results, is prima facie evidence of one-half an inch, and it was held that the negligence. Brignoli «. Chicago, &c. K. jury were warraifted in finding that the de- Co., 4 Daly (N. Y. Q. P.), 182. fendant was negligent. Retaining a badly 2 Eobinson v. N. Y. Central, &c. worn and battered " U " rail next to a " T " E. Co., 9 Fed. Etjp. 877. ^ • rail at a curve in the track, whereby an old ' Eobinson v. N. Y. Central E. Co., rail was broken by a train going at the rate 20 Blatch. (U. S. C. C.) 388. of not more than twenty miles an hour, *, Cleveland, &c. R. Co.. v. Newell, was, held to be evidence of gross negli- 75 Ind. 542 ; Brignoli v. Chicago, &e. gence. Taylor v. Grand Trunk E. Co., 48 E. Co., 4 Daly (N. Y. C. P.), 182 ; N. H.- 804. And evidence that the car- Pittsburgh, &!'. E. Co. V. Williams, 74 wheels are of .a too narrow gauge for the Ind. 462-, Michigan, &c. R. Co. v. Lantz, ti-ack, and therefore liable to be battered 29 Ind. 528. by defective rails, is evidence of gross neg- 5 Cleveland, &c. R, Co. v. Newell, 75 ligence. Holyoke v. Grand Trunk R. Co., Ind. 642 ; 8 An>. & Eng. R. Cas. 377 ; 23 48 ?f. H.-541. > Am. & Eng. R. Cas. 492. 7 McPadden v. N. V. Central R. Co., " In Eee<l v. N. Y, Central E. Co., 44 N. Y. 478 ; 4 Ani. Rep. 706. 1246 EAILWAYS AS CAREIBBS OP PASSENGERS. [CHAP, XVII. built of sound and proper materials, with abutments and supports of sufficient size and strength, and that the company, since their completion, has exercised over them that degree of watchfulness, care, and supervision, which the risks and dangers of its business de- manded.^ It is not enough to excuse the company from liability, that its carriages, engines, rails, bridges, roadway, and other appliances were made or built by manufacturers or persons of known skill, etc. In view of the duty which it owes to the public in respect to the sufficiency of these appliances, it cannot shirk its liability for aGtua,l defects therein by showing that it substituted the care and skUl of such persons for its own. It is bound to examine and test such appliances by all the best known and recognized tests, and ascertain for itself their suitableness ; ^ and if the defect could have been discovered by any known test, it is liable for an injury resulting therefrom.^ 1 Oliver v. N. Y., &c. E. Co., 1 Edm. (N. Y.) 589. The construction of a new bridge in place of an old one, in a different manner, amounts to an admission that the former bridge was improperly built, but it is not evidence that the bridge was im- properly constructed, or that the injury resulted from such defect. Kansas, &c. E. Co. V. Miller, 2 Col. 422. * Sharpe v. Gray, 9 Bing. 459 ; Francis V. Cockerell, L. E. 5 Q. B. 184, 601; Louisville, &c. E. Co. v. Snyder, 117 Ind. 435 ; 87 Am. & Eng. E. Cas. 137 ; Hoff- man «. N. Y. Central E. Co., 16 Barb. (N. Y.) 353. ' Warren v. Fitehburg E. Co., 8 Allen (Mass.), 227. In Hegeman ». Western R. Co., 16 Barb. 353, Harris, J., says : "The judge further charged that, as to the ma- terials of which the axle was made, if they were not of a proper quality, or wrought in a proper manner, and the de- fects were of that character that they could have been discovered upon a vig- ilant examination by a person of com- petent skill, either at the time of the con- struction or afterwards, then the defen- dant was responsible for the consequences. He also charged that the defendant was responsible for all defects in the axle which might have been discovered and remedied, to the same extent as if the defendant had manufactured said axle in its own workshop and by its immediate agen,ts. The charge takes the position that the defendant was responsible for any defect in the axle, whether of materials, workmanship, or otherwise, which were known, or might have been discovered by the manufacturer upon a vigilant and careful examination at the time of con- struction or afterwards. In other words, the defendant was made surety for the skill and extraordinaiy care and vigilance of the manufacturers ; and if, in fact, a defect existed or happened at the time of construction, which could have been de- tected by the manufacturer, though such defect was secret at the time the defendant purchased and used the axle, and not dis- coverable, still the defendant would be liable for the want of care on the part of the manufacturer. In my opinion this positibn cannot be sustained unless we are prepared to hold that railroad companies shall be held liable for all defects, whether discoverable or not ; thus making them warrantors of the roadworthiness of their cars, &c. The manufacturers of the axle and the car were not the servants or agents of the defendant ; they pursued an inde- pendent business, and for any want of care or skill, or for negligence, they were liable. It would, in my opinion, be very danger- ous to establish the rule that he who pur- chases aud uses an article manufactured by a mechanic shall he responsible for any in- jury to third persons in consequence of a SEC. 300.] CARE REQUIRED IN RELATION TO APPLIANCES. 1247 Not only must railway cars be sound and safe, but they must also, be provided with all the usual appliances required to ensure their safe operation. Thus, as bell-ropes are the means through which acci- dents may be signalled to the engineer, and the stopping of the train ensured, a railway company is required to have them on its cars, and is liable for the consequences of an injury which might have been averted if a bell-rope had been upon the car ; but it cannot be made liable because of the absence of this appliance, where its absence had no connection with the acoid^nt.^ So too, the company is required to have suitable brakes upon its cars, arjd in suitable repair, and if it runs its cars vi^ithout suitable brakes or when they are out of repair, and an accident occurs which could have been averted if they had been provided or in repair, liability attaches for the resulting injuries.^ So too, it is the duty of a railway company to light its cars and de- pots, so that passengers can protect themselves against dangers which could not otherwise be averted ; and if an injury should result to a passenger through its neglect to light its cars, — either from an acci- dental act of another passenger, or from a purposed act, as, if he should be attacked by another passenger, — the company would doubtless be liable therefor. defect in the article, not discoverable by the purchaser and user. Such a principle would be far-reaching, and it is not possi- ble now to consider and fix a limit to the cases to which it would apply. It goes entirely beyond the rule making every one responsible for his own negligence and the negligence of his servants and agents. In Stevens v. Armstrong, 6 N. Y. 435, it was held by this court that to I'ender one person liable for the negligence of an- other, the relation of master and servant or principal and agent must exist between them. In the present case, it is argued that the charge of the judge is not in con- flict with the case just cited ; that it does not make the defendant liable for the negligence of the manufacturer, but for its own neglect in not doing, "or causing to be done, what human care and fore- sight could have done to discover and remedy the defect in the construction of the oar in question. Does not this propo- sition involve the responsibility of the defendant for any want of care or for any neglect in the manufacturer, though such want of care or neglect could not be detected after the car was completed and when it was put in use ? As I under- stand the judge, he made the defendant liable for any defect happening during the construction of the car and axle which could have been detected by the manufac- turer, though it could not be detected by the defendant after the car and axle were completed. I agree that tJie defendant should be held to the exercise of the utmost care avd diligence. I think in Ingalls v. Bills, 9 Met. (Mass. ) 1, the proper dis- tinction was made and the true principles . were established. In that case, decided in 1845, all the English cases were re- viewed and the American cases referred to, and I shall content myself with this reference to that case, adopting the reason- ing of the court there and applying it to the present case. I think the learned judge erred in the rule of responsibility, and that there should be a new trial." 1 Mobile R. R. Co. ». Ashcroft, 48 Ala. 16 ; 49 id. 305. 2 Costello V. Syracuse, &c. E. R. Co., 65 Barb. (N. Y.) 92 ; 111. Central R. R. Co. V. Baches, 56 111. 379. 1248 RAIL-WAYS AS CAERIBRS OF PASSKNGEES. [CHAP. XVII. Sec. 301. Ordinary Care : Reasonable Care, etc. : Relative Obliga- tions of Carriers and Passengers. — It is the duty of every person to ex- ercise ordinary care to prevent injury either to the persons or property of others which may be injured by a failure upon his part to dis- charge this duty.i Ordinary care may be defined to be such care as men of ordinary prudence, sense, and discretion usually exercise un- der the same circumstances in the conduct of their own business or affairs ; 2 and the degree of care to be observed, or rather the question as to what constitutes ordinary care, depends upon the consequences likely to ensue from a careless performance of the act, and therefore varies in amount and degree according to the peculiar circumstances of each case.^ The degree of diligence required from railway com- panies, as well as persons generally, was well expressed by Earl, J., in a New York case:* "The degree of care which a person owing diligence must exercise depends upon the hazards and dangers which he may expect to encounter, and upon the consequences which may be expected to ilow from his negligence. Eailroad companies whose cars are drawn by steam at a high rate of speed, are held to the greatest skill, care, and diligence in the manufacture of their cars and engines, and in the management of their roads, because of the great danger , from their hazardous mode of conveyance, to human life, in case of any negligence. But the same degree of care and skill is not required from carriers of passengers by stage-coaches,^ and for the same reason is not required from the carriers upon street-cars drawn by horses-. The degree of care required in any case must have refer- ence to the subject matter and must be such only as a man of ordi- nary prudence and capacity may be expected to exercise under the same circumstances." " The law," said Staples, J.,^ " in tenderness to human life and limb, holds railroad companies liable for the slightest negligence, and compels them to repel by satisfactory proofs, every imputation of such negligence." They must use all the means reasonably in their power to prevent accident, and it -is not necessary, in order to charge them with liability, either to allege or prove great negligence.^ " They are bound to the most exact care 1 Holly ». Boston Gas-light Co., 8 * Unger ». Forty-Second Street E. Co. , Gray (Mass.), 132; White ». Winnisiin- 61 N. Y. 497. met Ferry Co., 7 Cush. (Mass.) 155. » Hegeman v. Western K. Co., 13 N. Y, 2 Shaw V. Boston, &o. E. Co., 8 Gray 9 ; 64 Am. Deo. 517. (Mass.), 45. 6 Baltimore, &c. R. Co. v. Wightman, » Fletcher v. Boston, &c. R. Co., 1 Allen 29 Gratt. (Va.) 431 ; 26 Am. Rep. 384. (Mass.), 9 ; 79 Am. Dec. 695. See 16 Am. ' Davis, J., in Seymour v. Chicago, & Eng. Ency. Law, pp. 398 et seq., Article &c. E. Co., 3 Biss. (U. S.) 43. on Negligence. SEC. 301.] ORDINARY CARE, ETC. 1249 and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all the subsid- iary arrangements necessary to the safety of passengers." ^ Gkiek, J., in a case before the United States Supreme Gotiet^ thus states the. rule : "When carriers undertake to convey persons by the powerful, but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negli- gence in such cases may well deserve the epithet of gross." The law does not require railway companies to use all the care and dili- gence the human mind can conceive, nor such as will rendej the transportation -of passengers free from all possible peril. Thus, it does not require for either passenger or freight trains, steel rails and iron or granite cross-ties, because such ties are 'less liable to decay, and consequently are safer than those made of iron or wood. Nor upon freight trains, although passengers are carried upon it, is the company required to have air-brakes, bell-pulls, and a brakeman upon each car ; but it does require everything necessary to the security of the passengers upon either, and reasonably consistent with the busi- ness of the ca/rrier and the means of conveyance employed. This rule applies, irrespective of any distinction between different kinds of trains. There is no reason for relaxing the rule, where the passen- ger is carried upon a freight train.^ But under the rule as we have' stated it, a passenger who takes passage upon a freight train, accepts and takes it, acquiescing in all the usual incidents and conduct of a freight train, managed by prudent and competent men,^ and failing in any of these respects, it is liable for an injury received by a passen- ger. But it is not liable for an inevitable accident, or one which occurs in spite of such reasonable care.^ A higher degree of care is, from prudential reasons, required, where " life or limb " is endangered than where the consequences only fall 1 Virginia, &c. R. E. Co. v. Sanger, 15 503; Dillaye v. New York, &o. E. E. Co., Gratt. (Va.-) 230. • 66 Barb. (N. Y. ) 30. i' Philadelphia, &c. R. R. Co. w. Derby, * Shoemaker ». Kingsbury, 12 Wall. 14 How. (U. S.) 486. (U. S.) 369; Hazard v. Chicago, &c. E. E. ' Indianapolis, &e. E. E. Co. B.-Horst, Co., 1 Biss. (0. S. C. C:) 5()3; Eaton v. 93 U. S. 291; Edgerton v. New York, &c. Delaware, &c. E. E. Co., 57 N. Y. 382. E. R. Co., 39 N. Y. 227; Dunn v. Grand 5 Brunswick, &c. E. E. Co. v. Gale, 56 Trunk E, R. Co., 58 Me. 187; Hazard v. Ga. 322; Kansas, &c. E. R. Co. o. Miller, Chicago, &c. E. E. Co., 1 Biss. (U. S. C. C.) 2 Col. 442. 1250 RAILWAYS AS CAEKIEKS OP PASSENGERS. [CHAP. XVTI. upon property, because the former cannot be restored, while the lat- ter can be.^ It is for this reason that the highest degree of reason- able care is required from railway companies in the carrying of passengers, And all the appliances employed therein. By this, it is not meant that they are required to exercise '.'superhuman" care and vigilance, or the " very utmost " care, but such care in view of the circumstances as a reasonably prudent man would exercise, in view of the consequences likely to ensue from a relaxation of such care and vigilance ; " and the degree of care to be exercised does not iCayzer v. Taylor, 10 Gray (Mass.), 27i. 2 Fuller V. Naugatuck R. R. Co., 21 Conn. 557 ; Hulsekamp v. Citizen's R. R. Co., 37 Mo. 537 ; Toledo, &a. R.R. Co. ■«. Baddsley, 54 111. 19 ; .lohnson v. Winona, &,a. R. R. Co., 11 Minn. 296 ; Taylor v. Grand Trunk R. R. Co., 48 N. H. 304 ; Meir v. Penn. R. R. Co., 64 Peun. St. 225 ; Union Pacific R. R. Co. v. Hand, 7 Kan. 380 ; Jeffersonville, &o. R. R. Co. V. Hendricks, 26 Ind. 228 ; Brown v. N. Y. Central R. R. Co., 34 N. Y. 404 ; Mississippi, &c. R. R. Co. v. Miller, 40 Miss. 45 ; New Orleans, &c. R. R. Co. .v. Bailey, 40' id. 395. Reasonable care is such care as the circumstances require, and may he said to he a shifting quantity. In the case of a railway company carrying pas- sengers, it is the highest degree of care and skill as to all its appliances. Railroad Co. v. Varnell, 98 U. S. 479 ; Penn. R. R. Co. V. Ray, 102 id. 451 ; Jamison v. San Jose, &o. R. R. Co., 55 Cal. 593 ; George v. St. Louis, &c. R. R. Co., 34 Ark. 613 ; Pittsburgh, &c. R. R. Co. v. Pillow, 76 Penn. St. 510 ; Mackoy u. Missouri, &c. R. E. Co., 18 Fed. Rep. 236 ; Delaware, &c. R. R. Co. V. Dailey, 37 N. J. L. 526 ; Baltimore, &o. R. R. Co. v. "Wightman, 29 Gratt. (Va.) 431 ; Brunswick, &c. R. R. V. Gale, 56 Ga. 322. A carrier, of pas- sengers is not an insurer ; nor is he bound to take every possible precaution against danger, hut he is hound to use such care as is consistent with the nature and extent of the business in which he is engaged, in providing safe and suitable means of trans- portation, as well as in the management of the same, and in making such reasonable arrangements as a prudent man would make to guard against all dangers, from whatever source arising, which may natur- ally, and according to the usual course of things, be expected to occur. Simmons V. New Bedford Company, 97 Mass. 361, 368. Any violence must be provided against, which might reasonably be antici- pated, or naturally be expected to occur, in view of all the circumstances. Allbn, J., in Putnam v. Broadway,' &c. R. E. Co., 55 N. Y. 114 ; Flint v. Norwich & N. Y. Trans. Co., 34 Conn. 554. In Bowen v. N. Y. Central R. E. (?o., 18 N. Y. 408, it is said that the precautions to be taken must be such as would be dictated by the utmost care and prudence of a veiy cautious person. Deyo v. N. Y. C. R. R. Co., 84 N. Y. 11 ; Maverick v. Eighth Ave. R. R. Co., 36 id. 381. That the negligence or misconduct of a third party contributed to the injv/ry is no excim} The results of such acts as can reason- ably be anticipated, must be guarded against as much as those of any other cause. Eaton v. Boston & Lowell R. R. Co., 11 Allen (Mass.), 600 ; McElroy v. Nashua & L. R. R. Co., 4 Cush. (Mass.) 400 ; Pittsburgh, &c. R. E. Co. v. Hinds, 53 Penn. 512. In the case in 97 Mass. supra, the injury was occasioned by the fall of a small boat, which was suspended over a portion of the deck where it was proper for passengers to be. The fall was occasioned, in part at least, by the care- lessness of the people in the boat. In Cleveland v. N. J. Steam Boat Co., 5 Hun (N. Y.), 523, the negligence complained of consisted in starting the boat before the barrier at the gangway was properly se- cured. The passage-way was about nine feet wide, and the provision made by the oomj)any for its closing, was u portable gate, resting at each end on the top in a iSEC. 801.] OBDINARY CAEB, ETC. 1251 in any measure depend upon the financial ability of the company, but it is bound, regardless of its pecuniary ability, to provide, so far staple, and at the outside at each end were placed stanchions, which prevented swing- ing, and on the top of the whole was placed a top rail secured by slides of iron. When the gates, stanchions, and top rail were all in their places, and secured as provided to- be secured, there was no doubt about their sufficiency. When the boat started, the gate was set in its place, but the stan- chions, which at each end prevented its swinging outward, were not put in ; nor was the top rail put on, which Would keep the gate and stanchions in their places, and prevent the gate being lifted out, or pressed out by bending, i In this condition the boat proceeded about twenty feet, being, at the point of the passage-way, from six to ten feet from the pier, when, by a sudden rush or crowd of the pas- sengers, the gate was thrown or pressed open and the plaintifiF thrust into the water. Merwin, J., said : " It is clear to me that the officers of the defendant were guilty of negligence. No one would say they were not negligent, if the gate had not been placed in at all. Is it varied much by saying it was placed in, in a de- fective or deceptive manner ? I think not. But it may be suggested that the sudden crowd or rush was not reasonably to be anticipated, and therefore the company not liable for not providing for it. The very object of barriers of this kind is to prevent the results of such commotions. Vessels are liable to be crowded, es{)ecially ' at gangways, at the time of starting. The fact that the company provided barriers of such character, shows that they antici- pated their necessity and use, and appreci- ated the importance of a strong. Well- secured gate. The failure to use the appliances provided, seems to me a reck- less disregard of the safety of the pas- sengers." In Dougan v. Champlain Trans. Co., 66 N. Y. 1, the proof of negligence was the omission to Inclose the space between the rail and the deck, so as to preclude the possibility of slipping under it. Such an accident was not likely to occur, and never had before, and there was no evidence that such danger would be apprehended by a reasonable, prudent person, and the boat had been run as it was for a number of years. On these grounds the court held there was no proof of negligence to go to the jury. In the Crocheron Case, 56 N. Y. 656, not fully reported, it appears that upon each step of the main stairway of the boat, was put a brass plate, or covering, which was cor- rugated save where it turned over the edge of the step, and there it was left smooth and slippery. Upon this the plaintiff ' slipped, and was injured. The stairs were so fixed on the best boats. They had been long in use on defendant's boat, and no injury was ever caused before ; and there was evidence that that was the best cover- ing in use. It was held no negligence. Such injury evidently could not have been reasonably expected. In Comman v. Railway Co., 4 H. & N. 781, the defend- ant, a railway company, had on itp plat- form, standing against a pillar which pas- sengers passed in going to and from the trains, a portable weighing-machine, used for weighing passengers' baggage, and the , foot of which projected about six inches above the level of the platform. It was unfenced, and had stood in the same posi- tion without accident for about five years. The plaintiff, being at the station on Christmas day inquiring for a parcel, was driven by the crowd against the machine, caught his foot in it ^nd fell over it. It was held no evidence of negligence, the machine being in a situation where it might be seen, and the accident being one which could not have been reasonably anticipated. In Brown v. European, &c. R. R. Co., 58 Me. 384, a child, nine years old, jumped on to a draw-bridge while it was being closed. A nonsuit was granted on the ground of contributory negligence of the plaintiff. This was affirmed, the court saying there was no negligence on the part of the defendant, although there was no one there to keep people off till the closing of the draw, it being in the day time. In Grafter v. Railway Co., L. R. 1 C. P. 300, the staircase leading from a railway station to a highway, had, at the edge of each step, a strip of brass, which had originally been roughened, but had 1252 EAILWAYS AS OAEBIEES OF PASSBNGBES. [CSAP. XVII. as human foresight and skill can accomplish that result, a safe road- bed, cars, and machinery, and careful, skilled, and reliable employes, suited to the nature and exigencies of its business.^ But railway companies are not required, for the sake of making their road abso- lutely free from danger, to incur expenses which would render the operation of the road impracticable.'^ They are, however, independ- ently of their pecuniary ability to do so, required to guard against dangers arising from'defects in t}ieir roadway, cars, engines, etc., so far as human foresight and prudence can reasonably do so.^ The rela- tion is measurably contractual. There is an implied condition in the contract with each passenger that the company is provided with a safe and sufficient road-bed, that its cars are stanch and roadwor- thy, that the servants in charge are tried, sober, and competent men, and that, so far as human care and foresight can reasonably do so, they- have guarded against every apparent danger which can beset become, from constant use, worn and slip- pery. The staircase was about six feet wide, a wall on each side, but no hand- rail. It was otherwise unobjectionable. The plaintiff, a frequent traveller, in as- cending from the station, slipped and fell. It was held no evidence of negligence against the company, the staircase having been long used without accident, and there being nothing unusual or improper in the construction ; nothing to cause danger to a person walking with ordinary circumspec- tion. The qjiestion in this class of action is, was the accident one that could have been reasonably anticipated; and if so, qpuld it have been avoided by the bast of care ? If so, the company is liable. If not, it is not liable, as it would be un- reasonable to hold the company responsible for injuries which could not reasonably have been anticipated. 1 Taylor v. Grand Trunk E. R. Co., 48 N. H. 304 ; Sullivan v. Philadelphia, &c. R. R. Co., 30 Penu. St. 234 ; Hicks v. Pacific E. R. Co., 64 Mo. 430. In Illi- nois, *o. E. R. Co. V. Phillips, 49 111. 234, the court say ; "Railroad companies must, in the exercise of their franchises, provide good and safe machinery, con- structed of proper materials, and free, so far as known and w«ll-recognized tests can determine, from defects ; and must ex- ercise care and vigilance in examining it and keeping it in proper repair and safe condition ; and must employ skilful and experienced servants. While they are not liable in general for injuries that may re- sult from using their franchises, which skill and experience are unable to foresee and avoid, nor for acts of persons not in their employment and over whom they have no control, they are responsible for injuries that result from a failure to exer- cise judgment and skill in thfe selection of material, in the construction of their ma- chinery, or in the use of it upon their roads." It is their duty to use upon their trains, whether for carrying passengers or freight; all improvements in machinery, or in the construction of cars,, etc. , commonly ■ used by othe;* companies ; and the failure to use such an improvement is negligence, for which it is liable to a person injured if it is shown that the improvement would have contributed in any material degree to prevent the injury. Costello v. Syracuse, &o. E. R. Co., 05 Barb. (N. Y.) 62. See also Forbes v. Atlantic, &c. E. E. Co., 76 N. C. 454, where this rule was adopted as to improved brakes. " Pittsburgh, Ac. R. R. Co. v. Thomp- son, 56 111. 188 ; Wheaton v. North Beach, &c. E. R. Co., 36 Cal. 690. " Meier v. Penn. R. R. Co., 64 Penn, St. 225 ; Knight v. Portland, &n. E. R. Co., 56 Me. 234. SEC. 301.J OEDINAKY CARE, ETC. 1253 the passenger;^ and this role applies to all classes of trains upon which the company has consented to carry the passenger? The re- sponsibility both of common carriers of goods for hire and of com- ' Sullivan «. Philadelphia, &c. E. R.i Co., 30 Penn. St.-234 ; Hegeman ». West- ern R. E. Co., 13 N. Y. 9. In Black v. ,Carrolton, &o.,R. R. Co., IQ La. An. 33, it wa.s held that there is an implied condi- tion that a passenger shall not be in jeop- ardy by the slightest fault of the company. Meier v. Penn. R. R. Co., 64 Penn. St. 225. A railway company is not liable for unforeseen Occidents and misfortunes which care and vigilance could not have provided, against or prevented. It does not warrant the absolute safety of its passengers. Its undertaking as to them goes no further than this, that as far as human care and foresight can reasonably go, it will provide for their safety. When everything has been done that reasonable prudence can suggest, an accident may happen. Croft V. Waterhouse, 11 Moore, 137 ; 3 Bing. 321 ; Sharp v. Grey, 2 M. & S. 620 ; 9 Bing. 460 ; Harris v. Costar, 1 C. & P. 637 ; Lamb v. Lyon, Hay, 61. They are bound to furnish good vehicles and skil- ful servants. Farrish v. Reigle^ 11 Gratt. (Va.) 697; Peck v. Neil, 3 McLean (IT. S. ), 22 ; Sayles v. Western Stage Co., 4 Iowa, 547 ; Ingalls v. Bills, 9 Met. (Mass.) 1. fiut they are not liable for ca.sualties that could not have been fore- seen or averted by such a degree of care as is consistent with the cirowmstknces ; Mc- Kinney v. Niel, 1 McLean (U. S.), 540 ; nor for a mere accident that is in no meas- ure chargeable to negligence on their part. Farrish v. Reigle, ante ; Stockton v. Fray, 4 Gill (Md. ), 406 ; Ingalls v. Bills, ante ; McClenahan v. Brook, 5 Rich. (S. C.) 17. Thus, where a passenger in an omnibus was injured by the bursting of a lamp, it was held that the burden was on the own- ers, to show that the fluid used was a safe , and proper article. Wilkie v. Bolster, 3 ' E. D. S. (N. Y. C. P.) 327. So where a coach was overturned, it was held- that this was primd fade evidence of negli- gence. Ware v. Gay, 11 Pick. (Mass.) 106 ; Boyee v. California Stage Co., 26 Cal. 460 ; Fairohild o. California Stage ■ Co., 18 id. 599. So where the plaintiff was injured by the breaking of the axle of a railway car, it was held primd facie evidence of negligence, and the company introducing no evidence to overcome the presumption, a, recovery was upheld. Dawson v. Manchester E. E. Co., 5 L. T. (n. s.) 682. The company is bound to keep the railway itself in good travel- ling order and fit for use, and to pro- vide roadworthy engines and darriages, skilful drivers and epgineers, and all things necessary for the safe conveyance of such passengers. But the company is not boupd* at its peril to provide a roadworthy carriage, and will not be responsible to. a passenger, if the defect in the carriage is such that it could neither be guarded against in the process of construction nor discovered by subsequent examination. Redhead i). Midland Ey. Co., L. E. 2 Q. B. 412 ; s. c. (Exch. Ch.) id. 4 Q. B. 379 ; Meier v. Penn. R. R. Co., 64 Penn. St. 225 ; Fairchild v. California Stage Co., 13 Cal. 599; Ware v. Gay, 11 Pick. (Mass.) 106 ; Ficken v. Jones, 28 Cal. 618 ; Tennery v. Pippinger, 1 Phil. (Penn. ) 543 ; Stokes?;. Saltonstall, 13 Pet.(U. S.) 181 ; Brehm v. Gt. Western R. R. Co., 34 Barb. (N. Y.) 256 ; Edgerton v. N. Y. & Harlem R. R. Co., 39 N. Y. 227 ; Sulli- ■ van V. Phila., &c. R. R. Co., 30 Penn. St. 234 ; Stockton v. Frey, 4 Gill (Md.), 406 ; Yonge V. Kenny, 28 Ga. Ill ; Illinois Cent. E. R. Co. v. Phillips, 55 111. 194 ; Memphis, &c. E. E. Co. v. Whitfield, 44 Miss. 466 ; Bishop v. Stockton, 1 West. L. J. 203 ; Maury v. Talmadge, 2 Mc- Lean (IT. S.), 157 ; Carroll v. Staten Island R. R. Co., 58 N. Y. 126 ; Crogan V. New York, &c. R, R. Co. (N. Y.) 18 Alb. Law J. 70. Nor will the company be liable because of a defective condition of its appliances if the injury did not result therefrom, and would have happened equally if they had been in proper con- dition. Hill V. New Orleans, &c. E. R. Co., 11 La. An. 292. ^ Indianapolis, &c. R. B. Co. v, Horst, 93 IT. S. 291. 1254 KAIL-WAYS AS CAEKIERS OP PASSENGEES. [CHAP. XVII. mon carriers of passengers for hire, notwithstanding some important differences between them, rests for its foundation upon the common law ; and the liability of each class of carriers where it is not affected by some special contract arises from a duty implied by law, although the law will raise a contract as springing from that duty.^ Formerly it was usual to declare against common carriers; either of goods or passengers, setting forth the custom of the realm ; but this method of declaring is supplanted by the modern mode of declaring either in case for breach of duty, or on the contract arising out of the duty so implied by law .2 In a leading case,^ Lord Holt, in defining his fifth sort of bailment, says, first ; " If it [the delivery of goods] be to a person of the first sort [that is, one who exercises a public employ- ment], and he is to have a reward, he is bound to answer for the goods at all events ; and this is the case of the common carrier, com- mon hoyman, master of a ship, etc. ... The law charges this person, thus intrusted to carry goods, against all events but the acts of God and the enemies of the king. For though the force be never so great, as, if an unreasona,ble number of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law for the safety of all persons the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing ; for else, these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clan- destine manner as would not be possible to be discovered. And this is the reason the law is founded in, upon that point." In a later case,* Chief Justice Best, in treating upon the same subject, said ; " When goods are delivered to a carrier, they are usually no longer under the eye of the owner ; he seldom follows or sends any servant with thfem to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss ; his witnesses must be the carrier's servants, and they, knowing that they could not be contradicted, would excuse their masters and themselves. To give due security to prop- erty, the law has added to that responsibility of a carrier whiph imme- diately arises out of his contract to carry for reward — namely, that of 1 Brotherton v. Wood, 3 Bred. & B. » Coggs v. Bernard, 2 Ld. Eaym. 918 f ■ 54 ; Ansell v. Waterliouse, 6 M. & S. 385. 1 Smith's Ld. Cas. (6th ed.) 189. 2 Dale V. Hall, 1 Wilfl. 281. This case « Eiley v. Home, 5 Biug. 220. changed the mode of declaring. SEC. 301.] ORDINARY CARE, ETC. 1255 taking all reasonable care of it — the tesponsibility of an iinsurer." This- judgment is cited with approbation by Stoey, J.,^ and has been gener- ally considered truly to express the reasons upon which the policy of the law with regard to common carriers of goods has been founded. The liability of a common carrier of goods is therefore that of an in- surer, arising out of the policy of the law, which superadds such a re- sponsibility to that springing merely out of a contract to carry for reward, namely, " the taking all reasonable care of the goods delivered to be carried." The policy of the law with regard to common carriers of goods for hire, and the reasons assigned for it by Lord Holt and Chief Justice Best, appear to have no application to the case of carriers of passengers for, hire; and henceit may be stated that "a carrier of passengers is not, properly speaking, a common carrier ; he does not warrant the safety of the passengers at all events, but only that, so far as human care and foresight can reasonably be required to go, their safe conveyance will be provided for." ^ His liability, how- ever, like that of the carrier of goods; arises out of the duty implied by law, and the declaration may be either in case for the breach of such duty, or on the contract springing from it, as was said by HoL- EOTD, J. :^ "Therefore, although the law will raise a contract with a common carrier to be answerable /oriAe careful conveyance of his pas- senger, nevertheless he may be charged in an action upon the case for a breach of his duty ;" and the law does not superadd any liability beyond that of providing for " the careful conveyance of his passengers.' In a case often cited,* which was an action against a stage-coach pro- prietor by a passenger injured by the overset of the coach, Best, C. J., said : " This action cannot be maintained 'unless negligence be proved. . . . The coachman must have competent skill, and must use that skill with diligence ; he must be well acquainted with the road he under- takes to drive ; he must be prdvided with steady horses, a coach and harness of sufficient strength and properly made, and also with lights by night. If there be the least failure in any one of these things, the duty of the coach-proprietors is not fulfilled, and they are answer- able for any injury or damage that happens. But with all these things, and when everything has been done that human prudence can suggest for the security of the passengers, an accident may hap- pen. ... If, having exerted proper skill and care, he from accident gets off the road, the proprietors are not answerable for what happens » Story on Bail., § 491. 8 Ansell v. Waterhouse, 6 M. & S. 393. * Smith's Merc. Law (7th ed.), 282. * Croft v. Waterhouse, 8 Bin£. 819, 321. 1256 BAIL WAYS AS CARRIERS OF PASSENGERS. [CHAP. XVII. from his doing so." And Park, J., in the same case, said : " A car- rier of goods is liable in all events except the act of God or the king's enemies. A earner of passengers is only liable for negligence." So, in a leading case upon this subject ^ it was contended that coach- owners were liable in all cases except where the injury happens from the act of God or the king's enemies ; but Eyee, C. J., held that cases of loss of goods by carriers were totally unlike the case before him. In thos6 cases the parties are protected, but as against carriers of persons, the action stands on the ground of negligence alone. In a later case ^ the accident arose from the breaking of an axle-tree, and Sir James Mansfield said : " If the axle-tree was sound as far as the human eye could discover,_the defendant was not liable. There was a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier was answerable at all events ; but he did not warrant the safety of passengers. His undertaking as to them went no further than this, that, as far as human care and foresight could go, he would provide for their safe conveyance. Therefore, if the breaking down of the coach was purely accidental, the plaintiff had n:o remedy for the misfortune he had encountered." Thus it wiU be seen that the test in case of a carrier of passengers is, has he, " as far as human foresight can reasonably go, provided for their safe conveyance " ? Of course, this includes care and foresight in the making and procuring, as well as in using, the carriage. But without stopping to discuss this point, because it is generally immaterial, it may be said that the same duty arises and is imposed by the law, in reference to any person whom the' company has con- sented to receive upon its trains, whether any compensation has been paid for the service or not.* The light which a passenger by railway 1 Aston V. Heaven, 2 Esp. 588. gers to stand upon, or get on or off at the 2 Christie v. Griggs, '2 Camp. 81. front platform, or to get on or off the oar » Gkier, J., in Philadelphia, &o.'E. E. when in motion, and declaring that the Co. «. Derby, 14 How. (U. S.) 468. In company would not be responsible for any Brennan v. Fairhaven, &o. R. E. Co., 45 accident happening thereby. In an ac- Conn. 284, the plaintiff, a boy ten years of tion against the company for the injury, age, Was riding free on the front platform the court below found that it was caused of a horse-railroad car, with the knowledge by the careless driving and management of the conductor and driver, the latter hav- of the car ; that the plaintiff in getting off ing requested him to hand in a package at under the circumstances used as much a place they were to pass. Before quite care as could be expected from a person of reaching the place for stopping for this his age, and that no contributory negli- purpose, the plaintiff jumped off the plat- gence on hia part was proved. It was form and fell under the car and was badly held, on a motion of the defendants for a hurt. A printed notice was posted con- new trial, 1. That the conclusion of tlie spicuously in the car forbidding passen- court upon the question of negligence was SEC. 301.J ORDINARY CARE, ETC. 1257 has to be carried safely does not depend on his having made a contract, but the fact of his being there creates a duty on the part of the com- pany to carry him safely. It suffices to enable him to maintain an action for negligence if he was being carried by the railroad company voluntarily, although gratuitously, and as a mere matter of favor to him.i The carrier does not, by consenting to carry a person gratui- tously, relieve himself of responsibility for negligence. When the assent to his riding free has been legally and properly given, the, person carried is entitled to the same degree of care as if he paid his fare.'* Blackburn, J., states the rule thus : " The right which a passenger by railway has to be carried safely does not depend on his having made a contract, but the fact of his being there creates a duty on the part of the company to carry him safely." ^ The presumption of law is that persons riding upon trains of a railroad carrier which are palpably not designed for tbe transportation of persons, are not lawfully there, and if they are permitted to be there by the consent of the carrier's employes, the presumption is against the authority of th^ employes to bind the carrier by such consent. But such pre- sumption may be overthrown by special circumsta,nces ; and where the railroad company would derive a benefit from the presence of drovers upon its cattle trains, and may have allowed its employes in charge of such trains to invite or permit drovers to accompany their cattle, the presumption against a license to the person thus carried may be overthrown.* So upon the other hand, the passenger is bound one of fact which could .not be reviewed jiasser in the car, that fact would not by this court. 2. That it was within the necessarily defeat his right of action, scope of the authority of the conductor 6. That a special duty devolved upon the and driver to receive and let off the plain- conductor and driver in view of the fact tiff as a passenger, and that it did not that the plaintiff was so young, to see that alter the case that the conductor did not the rule forbidding him to stand on the require him to pay fare. 3. That even if front platform or get off from it was ob- the driver was not authorized to deliver served by him. the package nor to employ the plaintiff to * Philadelphia, &c. R. R. Co. v. Derby, do it, yet evidence that he requested him 14 How. (U. S.) 468; Steamboat New to carry it in was admissible on the ques- World v. King, 16 id. 469., tion of negligence to show that he knew ^ Todd v. Old Colony, &c. E. E. Co., that the' plaintiff was on the car and was 3 Allen (Mass.), 18. intending to get off at the place in ques- ' Austin v. Great Western Ry. Co., tion. 4. That the averment that "the 15 Weekly Rep. 863. defendants so negligently managed the * In Eaton v. Delaware, &o, R. E. Co., car as to run it upon and over the plain- 57 N. Y. 382, it is held that the conduc- tiff," was sufficient to admit proof that the tor of a freight train has no authority to negligence consisted in not stopping the consent to the carrying of a person upon a car at the proper time. 5. That even if caboose attached to such train, but de- the plaintiff was to be regarded as a tres- signed for the accommodation of em- TOL. II. — 29 1258 RAILWAYS AS OAERIEKS OP PASSENGERS. [CHAP. XVH. to conduct himself, while upota the trains, in a prudent manner, and if he unnecessarily or negligently exposes himself to danger and as ployfa, and in such case the presuittptioti all aggravation that may attend the com- is that the person carried is not lawfully tniasion of the wrong ; whereas in the case of a passenger, if the contention of the de- fendant be supported, for the same charac- ter of injury the right of recovery would be more restricted.. The principle of these actions against common carriers of passen- gers is well illustrated by the case of a servant whoSe fare has been paid by the master ; or the case of a child for whom ho fare is charged. In both of the cases mentibned, though there is no contract as between the carrier and the servant, or as between the carrier and the child, yet there. On the other hand, this presump- tion may be overthrown by the special circumstances, as in the case df Ohio & Miss. K. B. Co. v. Muhling, 30 111. 9, where the plaintiff was riding on a con- struction train, and in the cases of Ryan V. Cumberland Valley E. R. Co., 23 Peiin. St. 384, and Gillshannon v. Storiy Brook Co., 10 Cush. 228, where the plaintiff was riding on a gravel train. Where a drover riding on an engine, in an action for neg- ligence of the railroad company causing an injury to him, claims that he was riding hoth servant aiid the child are passengers, oh the engine by the consent Of the en- gineer, to look after his cattle, as was cus- tomary, and the defendant claims that it was contrary to orders fof anybody to Hde on an engine, the question to be left to the jury to determine is, whether the de- fendant had, notwithstanding its rules for the government of its dmploy^s, by its conduct held out its employes to the plaintiff as authorized under the circum- stances to consent to his being carried on the train with his cattle. Waterbury V. New York Central & Hudson River R. R. Co., 17 Fed. Rep. 671. Alvey, J., in I^altimore City Passenger R. R. Co. V. Kemp, 61 Md. 619, 48 Am. Rep. 136, says : " A common carrier of passen- gers, who accepts a party to be carried, owes to that party a duty to be careful, irrespective of contract ; an.d the grava- men of an action like the present is the negligence of the defendant. The right to maintain the action does not depend upon contract, but the action is founded upon the common-law duty to carry safely ; and the negligent violation of that duty to the damage of the plaintiff is a tort or wrong which gives rise to the right of ac- tion. Brotherton v. Wood, 3 B. & B. 64. If this were not so, the passenger would occupy a more unfavorable position in ref- erence to the extent of his right to re- cover for injuries than a stranger j for the latter, for any negligent injury or wrong committed, can only sue as for a tort, and the measure of the recovery is not only for the actual suffering endured, but for and for any personal injuries suffered hy them, through the negligence of the car- rier, it is clear they could sue and recover ; hut they could Only sue as for a tort. The authorities would seem to be clear upon the subject, and leave no room for doubt or question." In the case of Mar- shall V. York, &e. Ry. Co., 11 C. B. 686, in discussing the ground of action agaiilst a common carrier, Jukvis, C. J., said ; "But upon what principle' does the action lie at the suit of the servant for his per- sonal suffering? Not by reason of any contract between him and the company, but by reason of a duty implied by la* to carry him safely. " And in the same case Mr. Justice WiLtiAMS said; "The case was, I think, put upon the right footing by Mr. Hill, when he said, that the ques- tion turned upon the inquiry whether it was necessary to show a contract- between the plaintiff and the railroad company, His proposition was, that this declaration could only be sustained by proof of a con- tract to carry the plaintiff and his luggage for hire and reward to be paid by the plaintiff, and that the traverae of that part of the declaration involves a traverse of the payment by the plaintiff. I am of opinion that there is no foundation for that proposition. It seems to me that the whole current of authorities, Beginning with Govett v. Radnidge, 8 EasV 62, and ending with Pozzi v. Shipton, 8 Ad. & Kl. 968, establishes that an action of this sort is, in substance, not an action of contra<!t, but an action of tort against the company SEC. 301.] ORDINARY CARE, ETC. 1259 a consequence is injured, he cannot recover redress from the com- pany, although it was also negligent, because in such a case the fault is mutual.^ But in order to prevent a recovery, the negligence of the passenger must have been such as to amount to a want of ordinary care.^ The fact that the passenger did not know that his act was careless will not avail him, as he was lourid to know.^ A passenger is not bound to keep his seat during the whole trip.* In the case last cited, the passenger stood up to. look out of a window, and leaning against the door, which had been improperly secured, he feU out and was injured. Cockbuen, C. J., said : " The passenger did nothing more than that which came within the scope of his enjoyment while as carrier.'' And in the subsequent ease of Austin V. Great West. Ry. Co., L. K. 2 Q. B. 442, Blackbukn, J,, in deliver- ing his judgment in that case, said ; " I thinlc that what was said in the case of Marshall v. York, &c. Ry. Co., 11 C. B., 655, was .quite correct. It was there laid down that the right which a passenger by railway has to be carried safely does not depend on his haying made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely." And to the same effect, and with full approval of the authorities just cited, are the cases of Foulkes v. Met.. Dis. Ry. Co., 4 C. P. Div. 267 ; and the same case on appeal, 5 C. P. Div. 157 ; and Fleming v. Manchester, &c. Ry. Co., 4 Q. B. Div. 81. The case of Brotherton e. Wood, 3 B. & B. 54, is a direct au- thority upon the question. A passenger may, without doubt, declare for a bi'each of contract where there is one ; but it is at his election to proceed as for a tort where there has been personal injupy,. suffered by the negligence or wrongful act of the car- rier or the agents of the company ; and in such actions the plaintiff is entitled to re- cover according to the principles pertain- ing to that class of actions as distinguished from actions on contracts. Stokes v. Sal- tonstall, 13 Pet. ,(U. S.) 181 ; Stockton v. Frey, 4 Gill. (Md.), 401 ; Baltimore, &c. R. R. Co. V, Blacher, 27 Md. 277. 1 Brennanr. Fairhaven, &c. R. R. Co., 45 Conn. 284 ; Willis v. Long Island E. E. Co., 34 N. Y. 670 ; Hickey v. Boston, &c. E. E. Co., 14 Allen (Mass.), 427 ; Quinn V. Illinois Central R. R. Co., 51 111. 495 ; Pennsylvania R. R. Co. v. Langdon (Penn.), 37 Leg. Int. 172 ; Harper i). Erie R. R. Co., 32 N. J. L. 88 ; Spooner v. Brooklyn City R. R. Co., 31 Barb. (N. Y.) 419 ; Deyo v. N. Y. Central E. E. Co., 34 N. Y. 9 ; Kentucky, &c. R. R. Co. v. Dills, 4 Bush (Ky.), 593 ; Higgins v. Han- nibal, &c. R. R. Co., 36 Mo. 418 ; South- ern R. R. Co. V. Kendricks, 40 Miss. 374; Maxfield v. Cincinnati, &c. F. R. Co., 41 Ind. 269 ; Farlow «. Kelly, 11 Am. & Eng. R. R. Cas. 104 ; Dale v. Del. & Lack. R. R. Co., 73 N. Y. 468. As, by riding in the baggage-car in viola- tijon of the company's rules. Penn. E. E. Co. V. Langdon, 92 Penn. St. 21 ; Peoria, &c. R. R. Co. V. Lane, 83 111. 438 ; Hous- ton & Texas R. R. Co. v. Clemmons, 55 Texas, 88 ; Kentucky Central R. R. Co. v. Thomas, 79 Ky. 160. Where a passenger, after having escaped, returned to a burning train to get his valise, and was injured, it was held that he had no remedj' against the company. Hay v. Gt. Western Ry. Co., 31 U. C. Q. B.-456. Crawling under a train to get into the station from an in- coming train, Memphis, &c. E. E. Co. v. Copeland, 61 Ala. 376, or getting on to moving train, are acts negligent por se Hqideu V. Great Western Ry. Co., 30 U. C. C. P. 39. ' Houston, &c. R. R. Co. v. Gorbett, 49 Tex. 573 ; Mackoy v. Missouri, &c. E. R. Co., 18 Fed. Eep. 236. 8 Penn. E. E. Co. v. Henderson, 43 Penn. St. 449 ; Southern E. E. Co. v. Kendrick, 40 Miss. 374. < Gee I'. Metropolitan Ry. Co., L. R, 8 Q. B. 161. 1260 BATLWAYS AS CAKEIERS OF PASSENGBES. [CHAP. XVII. tvavelling, without committing imprudence. In passing through a beautiful country, he is certainly at liberty to stand up and look at the view ; not in a negligent, but in the ordinary manner of people travelling for pleasure." A passenger has no right to leave his seat to incur a known and obvious danger, but the question whether he was negligent or not, is for the jury. In an English case,^ a passenger left his seat several times and closed the door of the coach, wiiich was insufficiently fastened. The fourth time he made the attempt, he fell out and was injured, and the court held that there could be no recovery. But in a recent case in this country it has been held that if a door is left open in a car, through the negligence of the employes or otherwise, whereby the passengers suffer inconvenience, and neither the conductor nor brakeman is present to shut it, it is not such negligence on the part of a passenger, even though the car is dark, in a careful and prudent manner to attempt to do so, as to preclude him from recovering for an injury received while making the attempt. Thus, where a passenger was injured in attempting to shut a door in a dark and crowded car, upon which he was a passenger, while it was passing through a tunnel, to keep out the smoke and cinders which were being sent into the car in considerable volume, so as to greatly incommode the passengers, it was held that his act was not 'per se negligent, and that the ques- tion whether it was so or not, was properly submitted to the jury.^ 1 Adams v. Lancashire, &o. Ry. Co., of it and pronounce upon its legal effect." L. E. i C. P. 739. In the case of the Detroit, &e. B. R. Co. ' Western Maryland E. R. Co. v. Stan- v. Van Steinburg, 17 Mich. 99, Coolky, ley, 61 Md. 266. In Park v. O'Brien, 23 C. J., says : "It is a mistake to say, as is Conn. 338, the court say : "The question sometimes said, that where the facts are as to the existence of negligence or want undisputed, the question of negligence is of ordinary care is one of a complex char- necessarily one of law. This is generally acter. The inquiry not only as to its true only of that class of cases where a existence, but whether it contributed with party has failed in the performance of negligence on the part of another to pro- a clear legal duty. When the question duce a particular effect is much cotnpli- arises upon a state of facts on which rea- cnted. As to both, they present, from sonable men may fairly arrive at different their very nature, a question not of law, conclusions, the fact of negligence cannot but of fact depending npon the peculiar be determined until one or the other of circumstances of each case, which oircum- those conclusions has been drawn by the stances are only evidential of the principal jury. The inferences to be drawn from fact, — that.of negligence or its effects, — the evidence must either be certain and and are to be compared and weighed by the incontrovertible, or they cannot be de- jury, the tribunal whose province it is to cided upon by the court. Negligence find facts, not by any artificial rules, but cannot be conclusively established by B by the ordinaiy prinoipUs of reasoning ; state of facts upon which fair-minded and such principal facts must bo found by men may well differ." See Sioux City, them before the court can take coglii?anoe &c. R. Co. v. Stout, 17 Wall. (U. S.) 657. SEC. 302.] DEGREE OF CARE, ETC. 1261 It would be preposterous to hold that where the company has failed to discharge its duty to look out for the comfort of its passen- gers, the latter must submit to the discomforts^ because there are no employes in the car to remedy it. Any person who has ever passed through a long and narrow tunnel, in a railway car, even with the doors, windows, and ventilators closed, can readily imagine what discomfort passengers must be subjected to in making the pas- sage with the doors open ; and we believe the court was fully justi- fied in holding that the plaintiff had a right under such circumstances to attempt to close, the door, exercising such care and prudence as the circumstances demanded. Cockbuen, C. J., lays down the rule on such matters thus :^ " If the inconvenience is so great that it is reasonable to get rid of it by an act not obviously dangerous, and executed without carelessness, the person causing the inconvenience by his negligence would be liable for any injury that might result from an attempt to avoid such inconvenience." It seems, however, that it is the duty of passengers to call upon the conductor or brake- man to remedy such inconveniences, if either of them is present,^ but if they are not present, then a passenger may do so, acting with due caution. Passengers passing from car to car unnecessarily do so at their own risk, and are bound to know that it is dangerous to do so ; * but if a passenger is directed to do so by the conductor or hrakeman, or is in seaVch of a comfortable place to sit or stand, the trains being crowded, he is not necessarily guilty of such negli- gence as precludes him from recovering for an injury received while so doing, but the question is for the jury.* Sec. 302. Degree of Care Required from Railway Companies. — For injuries resulting from latent defects in any of the appliances used by the company in the prosecution of its business of carrying passengers, which could not have been discovered by any known tests, a railroad company cannot be held responsible if it has used reasonable diligerice in respect to such appliances. It may be well to say here, that the various expressions found in the cases as to the degree of care to be observed by a railway company in reference to the condition of its roadway, bridges, carriages, engines, etc., after all, resolve themselves into the simple rule, that it must use reasonable * In Gee v. Metropolitan Ey. Co., L. ' Mclntyre v. N. Y. Central R. Co., B. 8 Q. B. 161. 34 N. Y. 287. 2 Adams v. Lancashire, &c. Ry. Co., * Mclntyre v. K. Y. Central E. Co., L. E. 7 C. P. 739. 47 Barb. (N. Y.) 523. 1262 RAILWAYS AS GAERIEES OP PASSENGERS. [CHAP. XVIi; oare, and thai the degr-ee of cwn to b& eoserdi^d must be commenimratt with the nature of the business and the possible dangerous consequeiices to the lives and limbs of passengers, if it is remiss in the performance of this dnUij' ; and' the question whether it has exercised such care or uot is for the jury. To say that it must use the " utmost " care, " tao- traordinary care" etc., means that it must use such a degree of care as reasonably prudent men would use in view of the perils Incident to a relaxation' of such reasonable vigilance.^ "The utmost care and vigilance is required on the part of the carrier," says the couit in a Penusylania case,^ and continuing adds, " This rule doesaiot require the utmost degree of care which the human mind is capable of imi- agining, but it does require that the highest degree of practicable care and diligence should be adopted." Thus the court lowered its. standard of care in such cases to pracUoable care, and then continued, "Railway passenger carriers are bound; to us& alV-reasonoMei preeau~ tews against injury to passengers; and' these precautions are to. be measured by those in known use in the same business- which, have been proved by experience to be efficacious. TAe company/ are bound to' use the- best' precautions known, to practical use." ^ In Illinois, the rule that- railway companies are required' to do all that human care and- vigilance can do, both in providing safe coachesi machinery, tracks, and roadway,, and keeping the same in repair, was J Meier v. Penn. R. Co., 64 Penn. St. caution," extraordinafy, diligence is the 225 ; Ciagen v. New York, &c. R. Co., measure of care which carriers owe to their 51 N. Y. 61 ; 10 Am. Bep. 559. . jiassengers, BBymond v. liuilington, &c. a In Meier v. Penn. R. Co., 64 Penn. R. Co.,. 65 Iowa, 152 ; ]8 Am. & Eng, R. St. 225. Cas. 217 ; Georgia R. Co. v. Homer, 73 ' The antHorities are unanimous, in Ga. 251 ; 27 Am. &■ Eng. R. Civs. 186; holding that a carrier of passengers is un- " greatest possible care," Philadelphia, der obligations to its passengers to exercise &c. R. Co. v. Boyer, 97 Penn. St. 91 ; fhe utmost care and diligence to secure 2 Am. & Eng. R. Cas. 172 ; "safety of their safety. This duty has been variously passengers must be provided for as far as expressed. Thus it is said they are' bound human foresight can go," Kellow v. Cen- to exercise " all possible skill and care, and tral Iowa R. Co., 68 Iowa, 470 ; 21 Am. all possiblfe foresight," Tgpeka City R. & Eng. R. Cas; 485 ; Pershing ».C:hicago, <:o. V. Higgs, 38 Kan. 375 ; 34 Am; & &c. R. Co., 71 Iowa, 561 ; 34 Am. & Eng. Eng.R. Cas. 529; must do "all that human R. Cas. 405; Little Kock, &o. R. Co. v. care, vigilance, and foresight can," Jami- Niles, 40 Ark. 298 ; 13 Am. & Eng. E. son V. San Jose, &o. R. Go., 55 Cal. 593 ; Cas. 10 ; Louisville, &o. B. Co. i>. Pedigo,- 3 Am. & Eng. E. Caa. 350. In approach- 108; Ind. 481 ; 37 Am. & Eng. B. Cas^^ ing a dangerous place carrier "is bound 310 ; Louisville, &c. B. Co, v. Bitter, 85 tousehighestdegreeof care and prudence, Ky. 368 ; 28 Am. & Eng. R. Cas. 167; and utmost skill and forethought," to Bedford', &e. K. Co. v. Rainbolt, 99 Ind. ivoid accident. Coddington w. Brooklyn, 661 ; 21 Am. & Eng. R. Cas. 472 (injui^ ka. B: Coi, 102 N. Y. 66 ; 26 Am. & Eng. caused by bridge giving awa,y). R. "Cas. 393 ; " extraordinary care and SBC. 302.] DEGREE OF GAEBj ETC. 1263 repudiated quiteearly in the history of railway litigation in that State, and the rule adopted that they must do all that human care, vigilance and foresight " can reasonably do, consistently with the mode of con- veyance and the practicable operation of the road." ^ In a Michigan case,^ Campbell, J., lays down the rule in such matters thus : " If they exercise their functions in the. same way with prudent railway com- panies generally, and furnish their road and run it in the customary manner, which is generally found and believed to be safe and prudent, they do all that is incumbent upon them." This practically means that if the company exercises, such care and vigilance as a, prudent ma,n under like circumstances would exercise, it has discharged its duty ; otherwise it would be me9,ningless, and; would call upon the jury to ^ay what railroad, companies were prudently inanaged, and what were not. In a. New Hampshire case,^ the judge in the court below charged the jury as fbUbws : " The burden of proof is upon the plain- tiff to show that the accident occurred under such c,ircumst;ances that the defendants were liable for- the consequences. The defendants Eire not insurers and are not liablie if they have been in no fault, but they are liable for the smallest negligence. They' must provide a good track; and if there be the least failure in this, they are an- sjverable for any injury which, may happen in consequence. The ^ diefmcktnts are Tiound toi use the highest degree of care which a reasona- Me man would use. This does not mean the highest, degree of care which the hiiman^^ mind is capable of imagining, or in other words that care enough must be taken to render the passenger perfectly safe ; such a rule would require so great an expenditure of money, and the employment of so many hands. The defendant must use such a degree of care as iS practicable short of incurring an expense which would render it altogether impossible to continue the business. The' law does not require such particular precaution as it is apparent after the accidfent might have prevented the injury, but such as would be dictate.d; by. tJis utmost care and prudence of a very cautious person before the accident, and' without knowledge that it was about to Qccur. The defendants must use the highest degree of praqticable care aiid diligence that is consistent with, the mode of transportation 1 Pittsburgh, &c. R. R. Co. ■». Thomp- 2 Grand' Eapids, &o. R. R. Co. v. son, 56 111. 138. See also TuUer «. TaU Hnntley, 38 Mich. 537. bot, 23 111. 357; to ttie-same effect. Con- s Taylor i>. Grand Trunk E. E. Co., 48 way V. 111. Central R. R. Co., 50 Iowa, N. H. 304.' 46S ; Chicago, &c. R. R. Co. v. Scates, 90 -111. 586. 1264 RAILWAYS AS CAEBIEES OF PASSENGEES. [CHAP XVII. adopted. They are not obliged to use every possible preventive that the highest scientific skill might have suggested. It is said that they must use the best precautions in known practical use to secure safety, the most approved modes of construction and machinery in known use in the business ; but this doctrine must be taken with the qualification that they are not obliged to introduce improvements if the expense of introducing them is much greater in proportion than the increase of safety thereby attained." ^ But in whatever 1 The verdict was set aside by the Su- preme Court, not because of its disap- proval of the general statement of the rule as to the degree of care to be ob- served by railway companies, but because the rule was misleading aa to the compari- son of the degree of care and skill to be used with the means of the company. Said Bellows, J. : " The objection most urged is the statement that defendants must use such a degree of care as is prac- ticable, short of incurring an expense which would render it altogether impossi- ble to continue business. Thi^ is- sub- stantially the language of Judge Red- field, in 2 Eedf. on Eailways (3d ed.), 187, and is apparently based upon the idea that the rule calling for the utmost degree of care, .vigilance, and ' precaution must be understood not to require such a degree of vigilance as will be wholly in- consistent with the mode of conveyance adopted, and render it impracticable. This is the doctrine of Tuller v. Talbot, 23 111. 357, where it is also said that this rule does not require the utmost degree of care which the human mind is capable of in- venting, aa such a rule would involve the expenditure of money and the employ- ment of hands so as to render it perfectly safe, and Would prevent- all persons of or- dinary prudence from engaging in that kind of business. But the rule does re- quire that the highest degree of practica- ble care and diligence should be used that is consistent with the mode of transporta- tion adopted. To the general views thus expressed we perceive no objection. In- deed, it is quite manifest, we think, that in fixing upon the measure of the obligation of common carriers by railway to the trav- elling public, it is proper to consider how far it is reasonably practicable for them to go, in view of the expenditures that might be required ; and, looking at the subject as a whole, we think it could never have . been intended to fix upon a measure of care that would render it practically im- possible to continue this mode of trans- portation. At the same time, the stan- dard of care and diligence for a particular railroad cannot be made to depend upon its pecuniary condition or the amount of its earnings ) but having undertaken to carry passengers in that mode, its duty is 'to provide a track, rolling-stock, and all other agencies suited to the nature and extent of the business it proposes to do, and the measure of its care and diligence is not to fluctuate with the changes in its revenues. A direction to the jui^, there- fore, that should make the degree of care required tul'n upon the pecuniary means of this particular road would be erroneous. The part of the charge particularly ob- jected to is the direction that ' defendants must use such degree of care as is practi- cable, short of incurring an expense which woul^ render it altogether impossible to continue the business.' - This might, and probably would, be understood to require of the defendants all practicable care to the extent of their means, which would make the ability of the corporation the measure of the care and diligence required; and that obviously is not the true test, and judging from other parts of the in- structions, it was not so intended. Still, the terms used are so explicit that there is reason to fear that the jury may have been misled, and induced to require as a stan- dard a higher degree of care and diligence than the law actually demands. It would be quite likely to be so if it appeared that the corporation was receiving a large in- come from this business, beyond the ex- SEC. 302.] DEGREE OF CARE, ETC. 1265 language it is expressed the rule seems to be that a carrier of pas- sengers is bound to use reasonable care in the construction, purchase, or repair of all the appliances of , his business, and in its operation ; and the question as to what is reasonable care is to be determined in view of the risk and danger to life and limb involved in the carry- ing of passengers by that mode of conveyance. This is virtually the rule in England,^ and any other rule would seem to ^e absurd, and unjust not only to passengers, but also to the company. penses. If, on the other hand, it appeared that the receipts did not equal the running expenses, the jtiry might feel at liberty to ■ exact a lower degree, of care and diligence. In respect to common highways, it has been decided in this State that the stan- dard by which their sufficiency is to he tested is not to be expaiided or con- tracted by the wealth or poverty of the town— Winshipi;. Enfield, 42 N. H. 197, 208, — and we think the same rule-is appli- cable to the proprietors of railroads. They are bound to keep them in suitable re- pair, and to operate them with suitable care .and diligence, considering the charac- ter and extent of the use to which they are applied. As before remarked, the passage under consideration is, in terms nmch like the passage in 2 Eedfield on Railways, 187 ; but upon a close exami- nation of his statement it will not /be found that the authorintended to announce the doctrine that the degree of diligence was to be measured by the revenues of the particular railroad, but that in fixing a general standard of care and diligence there should not be so much required as to render this mode of conveyance impracti- cable. The objection to the passage in question now before ns is the danger that the juiy may have underatood that the defendants were bound to use all practic cable care and skill to the extent of their means ; and as we do not kuo* that their means were not understood to be ample, we cannot be sure that the jury were not misled. The jury in this case have found that there was gross negligence, and it might, perhaps, be iirged that this finding shows that no harm was done by the instructions in question. We think, however, that in determining what was gross negligence the jury would naturally and properly be influenced by the degi-ee of care and diligence which they supposed the law required ; and, if that standard was carried too high, they might also come to a wrong conclusion as to what was gross negligence. We therefore are eon- strained to hold that, in respect to the particular direction under consideration, the charge was erroneous." 1 Richardson v. Great Eastern By. Co., L, R. 10 C. P. 490 ; Payne v. Great Northern Ey. Co., 2 F. & F. 619 ; Wy- bom V. Great Northern Ry. Co., 1 id. 162 ; Metropolitan By. Co. v. Jackson, 3 App. Cas. 193. A,s to, passengers, railway companies are not strictly common carriers, and are only liable for want pf due care. Redhead v. Midland Ry. Co., L. R. 4 Q. B. 379 ; Bird -v. Great Northern Ry. Co., '2S L. J. Exchq. 3. In Birkett v. Whitehaven, &c. Ry. Co., 730, B. took a ticket from Workington to Carlisle from the Whitehaven .Tunction Railway Com- pany. In order to arrive at the platform at the station at Maryport the trains pass over the line of the Maryport and Carlisle Railway. On that line is a self- acting switch used for shunting carriages into a sldirtg. The switch and siding were the property of the Maryport and Carlisle Railway Company, but used ex- clusively by I the Whitehaven - Junction^ Railway Company. The -switch is about four yards from a gate which is on the line of the Whitehaven Junction Railway Company, a servant of which company ■H'as in the habit of occasionally looking over the gate to see that the switch was in proper order. It was proved that all switches are liable to get out of order. A train of the Whitehaven Junction Rail- way coming slowly up to the station, in consequence of the points being turned 1266 EAILWArS AS CABEIEBS OF PAS&BNGBES. [CHAP. XVII. An English case^ of much importance, relating to the respousibil, ity of a carrier for an injury caused to .a passenger, seems to us to' embody the true rule.. The question in that case was as to the effect of a latent defect upon the common-law duty devolving upon the carrier of passengers to exercise care, diligence, and skill.^- In that case the accident occurred by the breaking of the tire to a wheelj owing to a flaw in the wheel caused by an air-bubble. There was evidence to the effect that such, a defect would sometimes occur in spite of the greatest care on the part of the manufacturer ; and that it was impossible to discover it in the process of manufacture or afterwards,, either by inspection or otherwise. LusHj J., who tried the case, left it to the jury, directing them that if the action was occasioned by a latent defect in the wheel, such, that no care or skill on the part of the diefendants (30uld detect it, the verdict should be for the defendants. The jury gave a, verdict fbr the defendants and subsequently the judgment was sustained in Queen's Bench, and. their judgment was affirmed by the Gojirt of Exchequer Chamber.* But in giving his judgment, BlackbUEN, J., expressed his opinion, thaty although carriers of passengers were not insurers, like common carriers of goods, they were bound, at their peril, to supply carriages reasonably fit fbr the journey ; and that it. was not enough that they made every reasonable effort to secure that result, if the carriage, was in fact Dot sufficient* the wrong way, ran into the siding and Jersey Steamboat Co,^ 56 Barb. (N. Y.) came in collision with some coal-tnicks, 425. • , whereby B. was killed. The judge left it * See upon this question, Pittsburghj to thte iury to say whether there, was neg- &c. E; E. Co. D. 'Thompson, 56 111. 138; ligence on the part of the Whitehaven- Hegeman v. Western R. R. Co.. 13 N. Y. Junction Railway Company. The July 9 ; McPaddon ii. N. Y. Central R. R. Co.,, found that there was. It was held that 44 N. Y. 478, where it was held that the the question was properly left to the jury company could not be held chargeable for and' that there was evidence of such neglif an injury resulting from u, defect not die- genoe. Sharp. t>. Grey, 9 Bing. 457 ; Ford coverable hy human prudence and caution. V. Ey. Co., 2iF. &F. 691; Skinner v. Lon- See also, to same effect, Crogan v. New don, &c. Ey. Co., 3 Exchq. 787 ; Burns v. York & Harlem R. R. Co., 18 Alb. L. J. Ey. Co., 13 Ir.Ch. 543. 70 ; Jngalls „. Bills, 9 Met. (Mass.) 1. 1 Redhead v. Midland Ry. Co., L. R. But he is bound to exercise the highest 2 Q. B. 412. ' degree of reasonable care in the selection 2 Cookie K.London, &c.Ey. Co., L.R. of his vehicles and appliance^ and to 5 C. P, 457; Whittaker v. Manchester, &c. properl^ inspect them and apply such tests Ry. Co., 22 L. J. n. s. S45; Praeger ■». to ascertain their soundness as are usually Bristol, &c. Ey. Co., 2.S L. T. N. s. 386; applied or as are known by men of the Harold v. Gt Western "By. Co., 14 L. T. highest prudence and caution, and those N. s. 440 ; Eichardson v. Gt. Eastern Ry. skilled in such matters* Nashville, &o. Co., L. E. 10 C. P. 486. E. R. Co. v. Jones, 9 Heisk. (Tenn.) 27. ' L. E. 4 Q. B. 879 ; Caldwell v. New And if the manufacturer was guilty, of neg-. S£C. 302.] DEGKEE OF CAEE, ETC: 1267 In the Exchequer Chamber, however, the judges were unanimously of opinion that there is no contract, either of general warranty or insurance, such as exjsts between the. carrier of goods and their owner, or of a limited warranty as to the vehicle being sufficient, entered into by the carrier of passengers, and that the contract of such a carrier, and the obligation which is imposed upon him, is to take diie care to carry a passenger. As we havie seen, however, the words " due care " have been held to imply the exercise of reasonable' skill and foresight. The above case does a good; deal to indirate the . degree- and kind of negligence which will render a carrier liable, in case of an injury to his passengera, and a later case* makes, this sub- ject still clearer. In- that case, which' was an action brought by the- plaintiff against the defendant, wholiad' been admitted, on paymenfe of money, to a buiiding erected by the defendant as a^ grand stand at a race meeting, and where, in consequence of negligence and impro- priety of the construction of the stand it fell, and the plaintiff was- injured, IlANiNEir, J., in delivering the judgment of the court, said : " The nearest analogy to: this case is afforded by that of carriers of passengers. The carrier is paid' for providing the means of trans- porting the piaBsenger from place to place. The defendant received payment for providing the means of supporting' the spectator at a particular place. This distinction does not, appear to give rise to any difference in principle between the contract to be implied in the one case and the other, as to the safety of the means for carriage, or support. In, the present case it is not found that the defendant was himself wanting in due care, and no power to draw inferences of fact is given to the court; and if it were, we should not be able to, draw the inference that the defendant was personally guilty of any want of care. He employed competent and" proper persons, who had effi- ciently, executed similar work on previous^ occasiona The circum- llgenoe in the seleotioir of materials for or ' Francis v. Coeloerell, L. R. 5 Qi B. in their construction, the dBcided weight 184 Exoh. Gh. 501. See also Richardson of authority sustains the position that the, v. Great Eastern By. Co., L. E. 10 C; P. earrieriwill be liable the same as though 486; Farish n.Reigle, 11 &ratt. (Va.)697; he had himself manufactured them. Stokes v. Eastern Counties Ry. Co., 2 F. McPadden v.'Se'w York, &c. R. E. Co., & F. 691 ; Peoria, &c. E. R. Co. o. Thomp- 44 N. Y. 478 ; Illinois Central R. E. Co. v. son, 56 111* 138 ; Hegeman v, Western- Phillips, 49 111.. 234 ; BisseU v. New York, R. R. Co., 13 N. Y. 9 ; Caldwell v. N. J. &c. E. E. Co., 25 N. Y. 442 ;: Meier v. Steamboat Co., 47 N. Y. 282 ; Frink v. Pennsylvania R. E. Co., 64 Penn. St. 225; Potter, 17 111. 406 ; Dougan v. Cham\i\wai Pittsburgh, &c. E. E. Co, ■». Nelson, 51 Trans. Co., 56 N. Y. 1. Ind. ISO. As to the' Scotch law, see Bell's Com., 6th ed., p. 133. 1268 RAILWAYS AS CARRIERS OF PASSKNGBRS. [CHAP. XVII. Stance that the defendant did not himself survey, or employ any one to survey, the stand after it vi^as erected^ does not in itself estab- lish the charge of negligence, /or it does not appear that the defect was such as could have been, discovered on inspection ; and even if it had been, it cannot be laid down as necessarily a want of care not to inspect, although it would, in some circumstances, be evidence from which a jury might properly find that due care had not been taken. It becomes necessary, therefore, for us to consider whether the con- tract by the defendant, to be implied from the relation which ex- isted between him and the plaintiff, was that due care had been used, not only by the defendant and his servants, but by the per- sons whom he employed as independent contractors to erect the stand. . . . Unless, therefore, the presumed intention of the parties be that the passenger 'should, in the event of his being injured by the breach of the manufacturer's contract, of which he has no knowl- edge, be without remedy, the only way in which effect can be given to a different intention is, by supposing that the carrier is to be responsible to the passenger, and to look for his indemnity to the person whom he selected, and whose breach of contract caused the mischief. But not only do we think that, when the reasons of jus- tice and convenience on the one side and on the other are weighed, the balance inclines in favor of the plaintiff, but we are also of opin- iou that the weight of authority is on the plaintiff's side."^ 1 See Christie v. Griggs, per Sir James an examination as to its fitness for travel. Maksfield, 2 Camp. 81 ; Crofts v. Water- This particular truck, when submitted to house, .pur Best, C. J., 3 Bing. 321 ; such examination, was found to have a Sharp D. Grey, 9 Bing. 459, ji?«rALDEUSON, defective spring, and a serious crack in B. ; Grote v. Chester & Holyhead Ey. one of its main timbers, and it was aceovd- Co., 2 Exch. 251 ; Brazier v. Polytech- ingly taken upon a siding and detained nic Institution, 1 F. & F., per Wibht- there four or five days for the purpose of MAN, J., 508. In Richardson v. Gt. hawng a new spring put on. This was Eastern Ky. Co., L. R. 10 C. P. 486, it done hy the company owning the truck, appeared that in the course of a journey The truck (which had not been unloaded) from Peterborough to London, a truck was then sent oh, with a direction chalked which had been received from another on it by a servant of the company owning railroad, laden with coal, broke down in it that it should " stop at Peterborough for consequence of the fracture of an axle, repairs when empty." Upon a minute and caused a collision of the freight train examination of the truck after the acci- with a passenger train in which the plain- dent, it was found that the fore-axle, tiff was riding as a passenger, whereby the which was three and a half inches thick, plaintiff was injured. The truck which had across it, near the wheel, an old crack broke down belonged to another company, an inch and a quarter deep, which was whose duty it was to keep it in repair, admitted to have been the sole cause of The course of business at the junction was the breakdown. There was conflicting that every truck, before coming on to the evidence as to whether or not, regard defendants' line, underwent some kind of being had to the extent of the traffic at SEC. 302.] DEGREE OF CARE, ETC. 1269 The law according to the great weight of authority seems to be that the car'Her is bound to use the most exact diligence, and is answer- able for any negligence, however slight. And this is true, not only of a default which is due to the carrier himself, but of any default of those employed' by him, or of those from wliom he has purcha-sed anything, which he uses in the conveyance of passengers, and which, from a want of skill in its construction, may cause injury to ^ny of tlie carrier's passengers.^ Consequently, a railway company which carries passengers is as responsible for the state of the rails, the con- dition of the plant, and the likej as it is for the safe construction of the carriages.^ And where an accident 'happens to a passenger upon the line, by reason of the carriage bfeaking down or running off the rails,* or by mismanagement in driving, so that the train is run against the permanent buffers at a terminus,* there is prima facie the junction, it was possible to have dis- covered this defect in the axle by any practicable examination at the junction, and the following questions were submit- ted to the jury • 1. Would the defect in the axle which was the cause of the acoi. dent have been discovered or discoverable upon any fit and careful examination of it to which it might have been subjected ? 2. Was it the duty of the defendants to examine this axle by scraping off the dirt and looking minutely at itj — so minutely as to enable thepn to see the crack, and so to prevent or remedy the mischief ? 3. If that was not their duty upon the first view of the truck, did it become their duty so to do when, upon having discovered the defects [i. e., the spring,- and the crack in the main timber], they ordered it to be re- paired, and it remained four or five days on their premises for the purpose ? The jury answered the first question in the affirmative, and the second in the negative; and to the third question they Answered, " It was their duty to require from the wagon company [the company owning the truck] some distinct assurance that it had been thoroughly examined and repaired." The learned judge thought the last answer immaterial, and directed a verdict for the defendants, reserving leave to the plaintiff to move to enter a verdict for him for an agreed sura if upon the facts and findings of the jury the court should be of opinion ttet the defendants were guilty of negli- gence. Upon these findings the plaintiff was held to be entitled to a verdict ; for although it might not have been the duty of the defendaints themselves to cause the truck to be properly examined and re- paired upon its arrival at the junction, nevertheless it was somebody's duty to do it, and the defendants were giiilty of cul- pable negligence in not satisfying them- selves that a proper examination had taken ^lace before they allowed the ti-uck to pro- ceed. Thompson on Carriers of Passen- gers, 217. This case illustrates the doc- trine that the oarrifer owes the same duty to passengers as to the examitiatiou, etc., of cars received from another railroad com- pany and run over its line by it, as it owes them in respect to its own cars ; and this must necessarily be the rule, else railway companies would be induced to use bor- rowed appliances, rather than their own. 1 Daniel v. Metropolitan Ey. Co.; L. E. 3 C. P. 21 6y 591 ; Philadelphia, &c. , E. Co. V. Derby, 14 How. (U. S.) 468 ; McGuire «.' The Golden Gate, 1 McAlI. (U. S.) 104 ; Taylor v. Grand Trunk B. Co., 48 N. H. 304. 2 Pym V. Great Northern Ry. Co., 2 F. & F. 619 ; Great Western Ey. of Can- ada, 1 Moorg, P. C. N. s. 106 ; Grote v. Chester & Holyhead Ry. Co., 2 Exch. 251. ' Dawson v. Manchester, &o. Ry. Co., 5 L. T. N. s. 682. ^ , * Burke v. Manchester, &c. Ry. Co., 22 L. T. Rep. 442. 1270 RAILWAYS* AS CAKKIERS OiF PASSENGERS. [CHAP. XVII. evidence from which the jury may infer negligence.^ But this rule only applies where the accident is of such- a nature that it appears that the wrongful act or negligence wliich produced it was that of the carrier himself, or of some person for whose act he is responsible, and does not apply where it may have -been caused by the act of a stranger.^ Nor does it apply where. the defects causing the injury are visible, and were seen by or known to the passenger,^ nor where the injury resulted from some voluntary act of the passenger him- self " combined with some alleged deficiency in the carrier's means of transportation or accommodation."* In this country, 'SO far as the question has been deeided, the rule -appears to be that a railway company is hot responsible for defects in its vehicles, etc., which might have been discovered in the process of manufacture, by the application of known tests, but which are not discoverable by any examination which the company could reason- ably make afterwards.^ But while it may be true that the rule adopted in England and the States referred to, that, if a carrier of passengers purchases his vehicles from reputable manufacturers, giving them such examination as is practicable and usual among ■prudent carriers using similar vehicles, he is not responsible for de- fects not discoverable on such examination, although they might have been discovered in the process of manufacture, is fully adequate to protect the interests of the travelling public, and more in consonance with, the idea universally admitted, that such carriers are not to be regarded as insuring the absolute safety of their appliances, it is a rule which admits of very serious question. There is much force in , 1 Pittsburgh, &c. R. Co. v. Willianis, 40 Miss. 374 ; Pennsylvania E. Co. v. 74 Ind. 462 J. New Orlean.s, &B. E. Co. v. Henderson, 43 Penn. St. 449 j Taylor v. AUbritton, 88 Miss. 242 ; Toledo, &c. K. Grand Trunk K. Co., 48 N. H. 804 i 2 Co. V. Baggs, 85 111. 80 ; Carpue v. Lon- Am. Rep. 229 ; Seymour i>, Cliicago, &c. R, don, &o. By. Co., 5 Q. B. 749. ,See the Co., 8 BisB. (U. S.) 48. question as to the presumption of nijgli- « Nashville, &o, R. Co. «. Jones, 8 gence as arising from the factof injury dis- Heisk. (Tenn.) 27, il; overruling 1 Coldw. cussed more at length, p09<, § 825 a. (Tenn.) 611 ; Grand Rapids, &o. R. Go. v. ^ Curtis V, Rochester, -&c. R, Co., 18 Huntley, 88 Mich. 537; 31 Am. Rep. 821; N. Y, 534. ' Michigan Central E. Co. v. Coleman, 28 3 1 Sliear. & Red. on Neg., §280; Rail- Mich. 440 ; Michigan Central R. Co. v. road Co. ■;;. Mitchell, 11 Heisk. (Tenn.) Dolan, 82 Mich. 610 ; Ft. Wayne, &o. R. 406 ; Miller v. St. Louis, *o, E. Co., 5 Co. ii. Gildersleeve, 88 Mich. 138. Com- Mo. App. 471 I Le Barron v. East Boston pare, however, Pittsburgh, &o. R. Co, v. Ferry, 11 Allen (Mass.), 812. Nelson, 51 Ind. 150 ; Ingalls v. Bills, 9 * Thompson on Carriers of Passengers, Met. (Mass.) 1 ; MoGuire v. Golden Gate, 214 ; Higgins V. Hannibal, &c. R. Co., 83 1 McAll. 104; Hegeman ii. Western R. Mo. 418 ; Southern E. Co, v. Kendrick, Co., 13 N. Y. 9 ; 64 Am. Deo. 517. / SEC. 302.] DEGREE OF CARE, ETC. 1271 .the statement of Campbell, J.,^ that " the law does not contemplate that railroad companies will in general make their own ears or en- gines, and .they;purchase them in the market of persons supposed to be competent dealers, , just as they buy other articles. All that they can reasonably be expected to do is to purchase such cars and other necessaries as they have reason to believe will be safe and proper, giving them such inspection as is usual and practicable as they bijy them." But there is more force in the argument that if a railwg,y company sees fit, either upon grounds of economy or other- wise, to ,.purchase its cars and appliances in the market, instead of raanufacturing them itself, it must be regarded as taking the risk of any defects therein which could have been discovered by it bythe a.pplication of known and usual tests if it had manufactured them itself, and that the diligence of the manufacturers cannot be substi- tuted for the\diligence of the carriers. There can be no injustice in requiring these companies to respond in damaiges for injuries re- sulting from such defects, especially as 'they have it in their power to provide by contract with the manufacturers for their own indem- nity against the consequences of any insufficiency in that respect.^ This rule imposes a high degree of care and vigilance upon railway companies, but it does not impose upon them a .greater- burden in this respect than public policy, in view of the nature of the business, demands, nor is.it unreasonable or unjust ;either to the companies or the public. It would be impracticable and disastrous to permit any relaxation of vigilance on the part of these companies by permitting them, by purchasing their appliances, to shield themselves from the consequences of defects therein, by saying : " I bought, the defective appliance of a reputable manufacturer, and he, and not myself, is the party to be blamed." 'Perfection, eith'er in its road-bed or appliances, is ilot expected, nor is perfect skill or care, nor an excessiveness of caution which would render the operation of the road impracticable required, but the law and public policy both require such a reason- able degree of care and vigilance as the nature of the business and the possible dangers incident thereto require.^ The degree of dili- gence to be observed does not depend upon the pecuniary ability or 1 In Grand Rapids. &o. R. Co. v. 8 Michigan Central R. Co. «. Coleman, Huntley, 88 Mich. 537; 31 Am. Rep. 321. 28 Mich. 440; McPadden v. New York, - 2 Frances v. Cockerell, L. R. 5 Q. B. &c. R. Co., 44 N. Y. 478 ; 4 Am. Rep. 184, 501; Louisville, &o. R. Co. v. Sny- 705. In the latter case the company was der, li'7 Ind.' 435; 37 Am. & Eng. R. held not liable for an injury resulting from Cas. 137. the breaking of a rail by extreme cold. 1272 EAILWAYS AS CARRIERS OF PASSENGERS. [CHAP. XVII. / capacity of the carrier,' but the same degree of care and vigilance is imposed upon each and every railway corporation which employs the dangerous agency of steam to propel its trains, whether its treasury is in a good or bad condition, or whether it is a weak or a strong corporation, or whether it operates a long, or a short line. By undertaking to carry passengers by the use of the dangerous ele- ments involved, a railway company impliedly contracts to carry its passengers safely, so far as reason,able care and prudence can secure that result; and a passenger is never bound to inquire as to the financial ability of the corporation to keep its roadway and other appliances in repair, or as to the length of its line or the number of trains which it runs. Each and every railway company is under an equal legal obligation to its passengers in thjs respect, and irrespec- tive of the amount of its business, or its financial ability, a passenger has a right to presume from the very fact that it runs its trains that it has discharged its duty.^ That would be a very singular and unjust rule, which graduated the degree of care to be observed by a railway company to the length of its purse, and of its line, and the number of trains which it runs ; and the law recognizes no such distinction.^ Sec. 303. injuries resulting from Passenger putting himself volun- tarily in a dangerous Position.* — Eailroad companies are only bound to exercise due care that a passenger is not injured througlj their fault, and are not required to exercise such a supervision over him as absolutely prevents his being injured by his own fault.* In other 1 See, however, Wharton on Negli- recover; and this was held under the plead- geiioe, 640. ings to be erroneous, as it disregarded the 2 Texas Trunk E. Co. v. Johnson, 75 question of the contributory negligence of Tex. 158 ; 41 Am. & Eng R. Gas. 122 ; the decedent. Wabash, &c. E. Co. v. Taylor v. Grand Trunk E. Co., 48 N. H. Shacklet, 105 111. 867 ; 12 Am. & Eng. E. 304 ; 2 Am. Eep. 229, where this ques- Cas. 166. A passenger, on the station to tion is considered. which he was going being announced, and 8 As to passengers riding on platform, after the car had entered the station, left see post, § 308. , his seat and stood inside the closed door of * See Malcolm r. Richmond, &c. R. the car, for the purpose of hastening his Co., 106 IT. C. 68 ; 44 Am. & Eng. R. departure therefrom. While he was so Caj. 379, where text is quoted with ap- standing, the car came in collision with proval. In a case where a stook-drover another car, and the passenger was thrown was riding on an engine with several others down and injured. It was held, in an when another engine suddenly came in action by him against the company, that sight around a curve, and all the others the question whether he Was in the exercise jumped off but the decedent, who remained of reasonable care was for the jury. Bar- and was killed, the court charged the jury den v. Boston, &o. E. Co., 121 Mass. 426 ; that if the defendant's employes were neg. Wortheu v. Grand Trunk R. Co., 126 ligent, and the decedent was rightfully Mass. 99. riding on the engine, the plaintiff could SEC. 303.] injuries: etc. 1278 words, if a passenger voluntarily puts himself in a dangerous position he cannot claim indemnity from the company. Thus, if a passenger allows his hands or arm to protrude out of a window beyond the outer surface of the car, it is held to be negligence iper se, which prevents a recovery for any injury received thereby.^ In an early 1 At the crossings of public roads, or wherever cattle are in the habit of stray- ing or known to be liable to stray upon the track, it is the duty of the company to use the utmost vigilance to keep them off, and in all such places to erect cattle-guards, put up fences,' 'or station watchmen for that purpose ; and a failure to do so is negligence, rendering them liable to pas- sengers for all injuries occasioned thereby. Wright V. Penn. R. Co., 3 Pittsb. (Penn. ) 116 ; Cumberton v. Irish Northwestern Ey. Co., 3 Ir. Rep.- C. L. 603. At the intersection of a railway and highway, the railway company placed a gate consisting of a pole about thiity-five feet long, which, when trjtins were passing, was swung from one side of the highway to a post on the other. As a train was approaching the crossing, a heavy runaway team dashed against the pole which was swung across the highway, and broke it or loosened it from its fastening.' The pfile swung ob- liquely across the track, and the whole or a part of it was driven into one of. the cars which had not slackened its speed. It was held, in an action against the company by a passenger in the car for injuries received from the,pole, that evidence of the above facts would wan-ant a jury in finding that the accident was caused by the defendant's negligence. Tyrrell «i Eastern R. Co., Ill Mass. 546. Passenger having Elbow Projecting out of Window. — In Pittsburgh, &o. R.Co. ». McClurg, 56 Penn. St. 294, where an injury was sustained by a pas- senger fto\a protruding his elbow out of the car-window, it was held that the thoughtless or imprudent protrusion of his elbow from the car-window was negligence per se, which would relieve the company from liability although the , injury was caused by passenger's arm coming in con- tact with a car standing on a switch of defendant's road. The court overruled Laing v. Colder, 8 Penn. St. 479, where a VOL. II. — 30 passenger was allowed to recover under similar- circumstances, no notice of the proximity of the side of the bridge having been given ; and New Jersey, &c. R." Co. V. Kennard, 21 Penn. St. 203, where the question was left to the jury. And the view as expressed in 56 Penn. St. 294, supra, is that of the decided majority of the adjudged cases. ■ See Georgia Pae. R. Co. u. Underwood, 90 Ala. 49 ; 8 So. Rep. 116 ; 44 Am. & Eng. R. Cas. 367 ; Indian- apolis,' &o. R. Co. V. Rutherford, 29 Ind. 82 ; Morel v. Miss. Valley Ins. Co., 4 Bush (Ky.), 536 ; Louisville, &c. R. Co. V. Sickings, 5 Bush (Ky.), 1 ; Eavre v. Louisville, &c. R. Co. (Ky. 1891), 16 S. W, Rep. 370 (hand protrading) j • Pitts- burgh, &o. E. Co. v'. Andrews, 39 Md. 329 ; 17 Am. Rep. 568 ; Todd v. Old Colony B. Co., 3 Allen (Mass.), 18 ; 7 id. 207 ; Holbrook v.' Utica, &c. K. Co., 12 N, y. 236 ; Coleman v. Second Ave. E. Co., 114 N. Y. 609 ; 39 Am. &- Eng. R. Cas. 456 ; Dun i). Seaboard, &c. R. Co., 78 Va. 645 ; 49 Am. Rep. 388 ; 16 Am. & Eng. R. Cas. 363 ; 17 Reporter, 699 ; Richmond, &c. R. Co. v. Scott, 88 Va. 958 ; 14 S. E. Rep. 763; 52 Am. & Eng. R. Cas. 405 (slightest voluntary projection of arm will ha,y recovery — evidence in this case held to show no projection) ; Carrico V. West Va. R. Co., 35 W. Va. 389 ; 14 S. E. Rep. 12. So where a, boy sits on the front platform of a crowded street-car, his feet resting on the lower step, and his knees protruding s^everal inches beyond the line of the car, and his knees are struck and injured by a mortar box placed by employes a few inches from where the car must pass, it was held that tlie boy was guilty of contributory negligence,, and that a non-suit should be ordered. Butler v. Pittsburgh, &c. R. Co., 139 Penn. St. 195 ; 21 Atl. Rep. 500. The Supreme Court of Alabama, In Georgia Pac. R. Co. v. Underwood, 90 Ala. 49 ; 8 So. Bep. 116, a^er reviewing 1274 RAILWAYS AS CAKRIEBS OF PASSBNGEBS. [CHAP. XVII. case in Pennsylvania, the arm of a passenger was broken while he was travelling on a railroad-car. The accident occurred while the ' these cases goes on to say : " Against this array of adjudged cases,' and to the con- verse of the proposition stated, there is believed to be in reality but one authority. That is the case of Spencer v. Milwaukee, &c. R. Co., 17 Wis. 487; 84 Am. Dec. 758, which takes the position, and supports it with vigor, that it is. not negligence per se for aipansenger to project his arm out of the window of the car in which he is rid- ing. Another case frequently cited and relied on to support this view is that of Chicago, &c. R. Co. v. Pondrom, 51 111. 333 ; 2 Am. Rep. 306. The conclusion in that case, however, was rested on the doc- trine of comparative negligence, a doctrine which, if not peculiar to Illinois, certainly is not recognized in our jurisprudence, and while the protrusion of the passenger's arm from the window of a moving car was admitted to be negligence, the judgment was allowed to stand because plainti^S' negligence was held to be less than thaf of the defendant. In the case of Quinn v. South Carolina R. Co., 29 S. C. 381 ; 7 S. E. Rep. 614, the ruling of the Supreme Court of Sowth Carolina that the inquiry of negligence vel non in projecting the arm from thij oar-window was for the jury, pro- ceeded, it seems, from a construction of the Constitution of that State under which, and not from a consideration of general principles pf law, the court felt impelled to submit the whole question of contribu- tory negligence to the jury. A like con- clusion was reached in Louisiana with respect to a passenger on u, atreet-railway. Summers v, Crgseent City R. Co., 84 La. An. 139 ; 44 Am. Rep. 419. But, as Mr. Bishop observes : "Steam-power is more difficult of control than horse-power, so the same negligent act of the passenger, such as voluntarily and unnecessarily rid- ing on the platform of the oar, is regarded as somewhat more, recriminatory in the former than in the latter." Bish. Non- Cont. Law, § 1116. And the whole doc- trine of this case, as also the Wisconsin case, supra, is repudiated by Mr. Wood in the following language (quoting pp. 1107- 1108); "The reasons upon which the ad- judged cases base the doctrine, appear to be eminently sound. Windows are not provided in cars that passengers may pro- ject themselves through or out of them, but for the admission of light and air. They are not intended for occupation, but for use and enjoyment without occupa- tion. No possible necessity of the passen- ger can be subserved by the protrusion of his person through them. Neither his con- venience nor comfort require that he should do so. It may be, doubtless is, true that men of ordinary prudence and care habitu- ally lean upon or rest their arms upon the sills of windows by which they ride. But this is a Very different thing from protru- sion beyoifd the outer edge of the sills, and beyond the surface of the car." According to the fpregoing decisions the protnisiou of the limbs of the passen- gers, even to the minutest distance, out of the windows of the car will be regarded as necessarily, and under all circumstances, such contributory negligence on the part of the passenger as will deprive him of all right to claim compensatiou from the carrier for injuries which may be occa- sioned thereby, however carejess the latter may have been in guarding against such accidents. A different rule has been laid down in some of the States, and the ques- tion as to whether such a position on the part of the passenger was negligent or not is said to be for the jury to determine from all ihe circumstances of the case. (Such a holdi\igi it is well known, is prac- tically equivalent to saying that it is not negligence.) New Jersey R. Co. v. Ken- nard, 21 Penn. St. 203 ; Spencer v. Mil- waukee, &c. R. Co., 17 Wis. 487 ; 84 Am. Dec. 758; Chicago, &c. R. Co. v. Pondrom, 51 III, 833 ; 2 Am. Rep. 300 ; Dahlberg v'. Minneapolis, &c. R. Co., 82 Minn. 404 ; Barton v. St. Louis, &c. R. Co.f 52 Mo. 253 ; 14 Am. Rep. 418 ; and Summers v. Crescent City R. Co., 37 La. An. 139 ; 44 Am. Rep. 419 ; Moakler v. Willamette Valley R. Co., 18 Greg. 189 ; 41 Am. & Eng. R. Oas, 135 ; Quinn v. South Caro- lina R. Co., 29 S. C. 381 ; 7 S. E. Rep. 614; Thompson on Carr. of Pass., 258. In Winters v. Hannibal, &c. R. Co., 39 Mo. 486, where a passenger's elbow protruding SEC. 303.] INJUBIES, ETC. 1275 6ar was passing over a bridge, which was so narrow that the plain- tififs hand, lying outside of the oar-window, was canght by the bridge, and the arm was broken. In this case the court held that merely suffering the hand to remain outside the wind6\? was not necessarily negligence which would bar a recovery.^ In a late case in Louisiana,'^ it was held to be f&r se negligence for a street-railway company to have two tracks so near together that a passenger's arm projecting a few inches from a car-window may be hit by a passing train ; and that it is not necessarily negligent for a passenger to allow his arm to project from a car-window. But the line of reasoning adopted in this case fails to convince us that the doctrine held is either just or proper. Any person possessed of sufficient intelligence to ride upon a street-car must know that the vehicle in which he is riding cannot turn from the rails upon which it runs," and is con- stantly passing other vehicles, which are liable to pass very near to it so as to render it unsafe, except with the utmost watchfulness upon his part, to allow any portion of his body to protrude beyond the outer surface of the car; and it makes no difference in this respect from a car-window was hit by a portion of a wrecked car which had not been seasonably removed, it was held that the company was liable. See also Miller v. St. Louis R. Co., 6 Mo. App. 471; But the better rule, both upon authority and upon reason, is, that the passenger being eindowed with intelligence which enables him to foresee and to avoid danger, the exercise of at least ordinary prudence is required on his part to escape it j and if by his failure to exercise these facilities for his own preservation, a misfortune be- fall himy though the carrier may have been in fault, it will be attributed to his own carelessness and inattention, and the responsibilities will not be thrown on the carrier. 1 Laing V. Colder, 8 Penn. St. 479 ; 49 'Am. Dec. 533. But this doctrine is repudiated in Pittsburgh, &c. E. Co. v. McClurg, 56 Penn. St 294. ' Summers v. Crescent City R. Co., 34 La. Ah. 139; 44 Am. Eep. 419^ In a, later case, Moore v; Edison Electric Co., 43 La. An. 792 ; 9 So. Rep. 433, a pas- senger on a street-car, fearing he had taken the wrong car, put his head out of the window to ascertain its color, and while in this position was injured by com- ing in contact with an electric-light pole. He brought his action against the electric- light company, but it was held that he was guilty of contributor j) negligence and could not recover. See Federal Street, &o. R. Co. u. Gibson, 96 Penn. St. 83, which was an action by a passenger to recover damages which he sustained while in a ear of a street-railway company, in being struck by a passing load of hay. The passenger sat near an open window with his arm so exposed that it was struck and injured by, the hay on a passing wagon. Thus, the proximate cause of in- jury, at least in part, was the act of a third party over which the railroad com- pany had no co^itrol whatever. If the in- jury was caused by the contributory neg- ligence of the passenger, or by the sole negligence of the driver of the wagon, there should be no recovery. The jury found that the passenger was without falnlt on his part, but recovery was denied on the ground that the burden of proving the company's negligence was on the passen ger, and this proof he had failed to eatab lish. McCuUough v. Clark, 40 Penn. St. 399 ; Allen v. •Williard, 57 Penn. St. 374 Waters v. Wing, 59 Penn. St. 211 ; RaU road Co. v. Hinds, 53 Penn. St. 512, 1276 RAILWAYS AS CAREIEES OF PASSENGERS. [CHAP. XVII. I that one source of danger is the company's own cars passing upon other rails laid in the street. Again, in the case of double tracks in public streets, the company is not always permitted to exercise its discretion as to the distance apart at which they shall be laid, but these matters usually are, and probably in the case in question were, regulated by a municipal ordinance. To say that a passengei? may be stupidly negligent, and expose his person to danger upon this class of vehicles, and the company made liable for the consequences of his negligence, is the assertion of a rule which has no foundation in reason and but little in authority ; and it seems to us that the rule generally adopted, that such acts upon the part of a passenger either upon a street or steam car are jprima facie negligent, is the correct one.^ In a Pennsylyania case ^ in which this question was discussed, the court lays down a very sensible and sound rule: "A passenger on entering a railroad-car is presumed to know the use of a seat and the use of a window ; that the former is to sit in, and the latter to admit light and air. Each has its separate use. The seat, he may occupy in any manner most comfortable to himself ; the window, he has a right to enjoy, but not to occupy. . . . When a traveller puts his elbow or arm out of a car-window voluntaiily, without any quali- fying circumstances impelling him to it, it must be regarded as neg- ligence in se ; and when that is the i state of the evidence, it is the duty of the court to declare the act negligence in law." * "While it is true that a passenger is presumed and bound to know that it is dangerous to expose any pai-t of his person beyond the outer surface of the car, yet the railway company are al^o b^und to know that pas- sengers will sometimes incur this risk, and that exposures of that class will sometimes accidentally occur ; and for this reason we agree with Mr. Wharton * that as prudent men, in view of the conse- quences involved, they are bound to guard against such consequences as far as possible, and if by making erections so near their track 1 See cases already reviewed. The Ian- TJtiea, &o. E. Co., 12 N. Y. 236 ; Pitts- guage of the text is quoted with approval hurgh, &o. R. Co. v. McClurg, 56 Penn. in Georgia Pac. B. Co. v. Underwood, 90 St. 294. In a later Pennsylvania oase Ala. 49 ; 44 Am. & Eng. R. Cas. 367 ; 8 (New Jersey E, Co. v. Kennard, 21 ■Penn. So. Rep. 117. St. 203), it was held to he the duty of '' Laing v. Colder, 8 Penn. St. 479 ; 49 railway companies to put wire screens at Am. Dec. 533. the windows to prevent such accidents, ' Louisville, &o. R. Co. v. Sickings, but this doctrine was overruled by the 5 Bush (Ky.), 5 ; Lafayette, &c. B. Co. case cited from the 56 Penn. St. 294. V. Huffman, 27 Ind. 288 ; Holbrook v, * Wharton on Negligence, 382. •SEC. •] HIDING IN Baggage-cab, etc. 1277 that a person's arm, head, or body, accidentally exposed beyond the ' surface of the car, is injured, it is liable for the consequences. But ia order to warrant a recovery in such cases, the plaintiff must show that the injury did not occur through his own negligence. If there is a conflict in the evidence upon that point, it seems that the question must be submitted to the jury.^ But a passenger is not negligent in merely resting his arm on the sill of the window, provided he does not allow it to extend beyond the line of the car ; and proof that while the passenger was in such a position his arm was struck by some substance from a passing freight train raises a presumption of negligence on the part of the company.^ Sec. 304. Riding in Baggage-Car, Engine, Freight-Car, etc. — A passenger who voluntarily rides in a baggage-car, or other known place of danger, in violation of the known rules of the company, and is injured in consequence of such violation, cannot recover damages therefor,^ even though he is there by, the permission of the con- ductor;*, and in the absence of any proof upon that point, it will 1 Pittsburgh, &o. R. Co. v. Andrews, 39Md. 329; J7 Am. Kep. 568 ; Chicago, &c. E. Co. V. Pondrom, 51 III. 333 ; 2 Am. Bep. 306 ; Spencer v. Eailroad Co., 17 Wis. 487. 2 Breen v. New York Cent. R. Co., 109 N. Y; 297 ; 33 Am. & Eng. R. Cas. 523 ; Farlow v. Kelly, 108 U. S. 288 ; 11 Am. & Eng. R. Cas. 104 ; Winters v. Hannibal, &o. R. Co., 39 Mo. 468 ; Ger- mantown Pass. R. Co. ». Brophy, 105 Penn. St. 38 ; 16 Am. & Eng. R. Cas. 361 (question for the jury) ; Dahlberg v. Minneapolis St. E. Co., 32 Minn. 404 ; 18 Am. & Eng. R. Cas. 202 ; 31 Alb. L. JoUr. 355 .(passenger placing his hand over base of'an open window in taking his 'seat — qnestion left to jury) ; Carrico V. West Va. E. Co., 35 W. Va. 389 ; 14 S. E. Rep. 12. In Hallanan v. New York, &o. R. Co., 102 N. Y. 194, the plaintiff, a passenger in one of defendant's cars, was sitting by an open window with his elbow on the window-sill, when it was struclj liy a crane used to deliver the mails to passing trains. In an action, to recover damages for the injury, a witness after describing the position of the plain- tiffs elbow upon the window-sill, added " I should jndge that it could not project out of the window by the position h^ held it in the car ; " also, that " it could not be outside of the car." It was held that the testimony was competent ; that it was not merely an opinion, but a statement of facts, without a positive allegation as to its accuracy ; but even if regarded as an opinion, as it was being based upon per- sonal knowledge of facts, it was com- petent, 8 Hickey v. Boston, &c. R. Co., 14 Allen (Ma,ss.), 429; Penn. R. Co. v. Langdon, 92 Penn. St. 21 ; 37 Am. Rep. 651 ; 1 Am. & Eng. R. Cas. 87 ; Ken- tucky, &c. R. Co. V. Thomas, 79 Ky. 160; 42 Am. Rep. 208 ; 1 Am. & Eng. R. Cas. 79 ; Houston, &c. R. Co. o. Cleramons, 55 Tex. 88 ; 40 Am. Rep 798 ; Blake «. Burlington, &c. R. Co., 78 Iowa, 57 j 39 Am. & Eng. R. Cas. 405, (riding in "shpw car") ; New York, &c. R. Cq. n. Ball, 53 N. J. L. 283. Bat. contra, see Watson V. Northern Ey. Co., 24 U. C. Q. B. 98 ; Jacobus v. St. Paul, &c. R. Cp., 20 Minn. 125 ; 18 Am. Rep. 360 ; Carroll V. New York, &c. R. Co., 1 Duer (N. Y.), 571. * Hickey «. Boston, &c. . R. Co., 14 Allen (Mass.), 429; Penn. R. Co. v. Langdon, 92 Penn. St. 21 ; 37 Am. Rep. 1278 KAILWAYS AS CARRIERS OF PASSENGERS. ° [CHAP, XVII. be presu'med that the passenger knew of the danger, and the regular tions forbidding passengers from riding in the baggage-car.^ In" some jurisdictions, it is held that the permission of the conductor will justify a passenger in riding in the baggage-car j^ but it seems to us that the better rule is that where a person! volimtarili/ and unneces- sarily puts himself in a position of danger, he cannot excuse the act because he was permitted to do so by the company's agents, in direct violation of their rules. To say that a passenger may be negligent because he is permitted to be so by the conductor, is a dangerous relaxation of a salutary rule which requires proper care from a pas- senger.^ The idea which is promulgated in some of the cases that a passenger may, at the risk of the company, by the permission of the conductor, voluntarily put himself in a position of danger in viola- tion of a known rule of the company seems to us to be contrary to reason and unjust.* In the^ case cited from New York,^ which 651 ; Houston, &e. E. Co. v. Clemmons, 55 Tex. 88 ; 40 Am. Kep. 799 ; 8 Ato, & Eog. R. Gas. 396. 1 Houston, &o. R. Co. v. Clemmons, 55 Tex. 88 ; 40 Am. Eep. 799 ; 8 Am. & Eng. E. Cas. 396. But see Dunn v. Grand Trunk R. Co., 58 Me. 187 ; also remarks of Paxson, J., in Penn. E. Co. v. Langdon, 92 Penn. St. 21. 2 Carroll v. N. Y., &c. R. Co., 1 Dner (ST. Y.), 571 ; Watson v. Northern Ry. Co., 24 U. C. Q. B. 98; O'Donnell v. Allegheny, &c. E. Co., 59 Penn. St. 239. In a Minnesota case it was held that even though a passenger Icnew of the regula- tions, yet if he was permitted to ride in the baggage-car he does not do so at his peril. Jacobus v. St. Paul, &c. E. Co., 20 Minn. 125 ; 18 Am. Eep. 360. 9 In Hickey v. Boston, &o. R. Co., 14 Allen (Mass.), 429, Wells, J., very per- tinently said, " It is not enough for the plaintiff to show that Hickey was right- fully upon the platform. Because he might rightfully occupy whatever place the conductor should permit, it does not follow that he would do so at the lisk, exclusively, of the corporation." So in Reary v. Louisville, &o. E. Co., 40 La. An. 32 ; 34 Am. & Eng. E. Oaa. 277 ; it was held that permission from tbe baggage- master to ride in the baggage-car was without authority, and persons ii^ured while so riding could not recover, ^ Thus, where a stock-shipper riding on top of a car, at the directipn of the con- dtictor, in order to aid in the .signalling, is injured thereby, he has no right of action. Atchison, &c. E. Co. i: Lindley, 42 Ean. 714 ; 41 Am. & Eng. R. Cas. 82. Here the authorities are examined at length. See also Little Eock, &c. R. Co. v. Miles, 40 Ark. 298; 13 Am. &Eng. R. Cas. 10; McCorkle V. Chicago, &c. R. Co., 61 I<owa, 555 ; 18 Am. & Eng. R. Cas. 156 (injury to stock- drover accompanyipg cattle) ; Baltimore, &c. R. Co. V. Jones, 95 U. S. 439 (em- ploy4 riding on pilot in defiance of orders) ; Georgia Pac. R. Co. ». Propst, 83 Ala. 518 ; 85 Ala. 203 ; 38 Am. & Eng. R. (JJas. 11. In Hutchinson on Carriers (2d ed.), § 654, a contrary opinion is expressed however. It is said : " Even when the riding in such car is against the rules of the company, of which the pas- senger is informed, if he is in it with the knowledge of the conductor, and without any attempt ou his part to enforce the rule by removing the passenger, his pres- ence there would not he such negligence as would exonerate the company from the consequence of its negligence or want of care." Ciiing Jacobus v. St. Paul, &o. E. Co., 20 Minn. 125 ; 18 Am. Eep. 360. ' ' Carroll v. N. Y., &c. R. Co. 1 Duer (N. Y.), 571. J'or a very similar case see Baltimore, &c. R. Co. v. State, 72 Md. 36 i 41 Am. & Eng. R Cas. 126. . In this SEC. 304.] KIPING IN BAGGAGE-CAK, KTU. 1279 appears to oppose the view of the rule above stated, the facts were that a postal clerk while not on duty was riding home in the mail- car ; he was allowed to ride in the regular coaches or in the mail-car at his option ; in riding in the mail-car, therefore, h^ was violating no regulation of the company. Such a case is clearly distinguishable from those in wh^ch an ordinary passenger violates the rules of the company by leaving the accommodations provided for him and going into. a place -of danger. In the Minnesota case,^ the evidence was conflicting as to whether the passenger knew of the rule of the com- pany. But, it is proper to say that in this case, the court held that, inasmuch as the passenger was in the baggage-car by the permission of the conductor^ it made ho difference whether he knew of the exist- ence of the rules or not.^ It is doubtless true that a person may do acts under the advice or direction of the conductor of the train which involve more or less of personal risk, without being amenable to the charge ,of being guilty of negligence in se ; but, as we have case, a postal clerk, while off duty and on his way home, heing entitled to ride on the train, voluntarily left his seat in the smoking-car, where he had heen riding and went into the postal-car. While so riding he was killed through the negli- gence of the company, though no one in the smoking-car was injiired, and if he had remained there *he would have been unhurt. It was the custom to allow such clerks under similar circumstances to ride either in the regular passenger-coaches or in the mail-car. The court held that the company was liable for the' injury ; that deceased's riding in the mail-car was not . necessarily contributory negligence and was • properly a question for the jury. The court said : " To justify a court in saying that conduct is per se contributory negligence, the case must present some such feature of recklessness as would leave no opportunity for difference of opin- ion as to its imprudence in the minds of ordinarily prudent men. Baltimore, &c. E. Co. V. Kane, 69 Md. 21 ; Cumberland Valley R. Co. v. Mangans, 61 Md. 61 ; Baltimore, &c. E. Co. v. State, 54 Md. 655. Here the deceased was doing what he was actually required to do for the larger part of his time on the ears, and was permitted to do for the rest of his time while on the cars. It was- provided for his occupancy when on duty as postal clerk, and his not being on duty did not make the car more dangerous for him. His act therefore in no way contributed to the result which happened. A case pre- cisely like this is found in Cari'oll v. New York, &c. R. Co., 1 Duer (N. Y.), 571." 1 Jacobus V. St. Paul, &c.'r. Co., 20 Minn. 125; 18 Am. Eep. 360. See also Jones V. Chicago, &c. R. Co., iS Minn. 279 ; 44 Am. & Eng. R, Cas. 357. And in O'Donnell v. Allegheny E. Co., 59 Penn. St. 239 ; 98 Am. Dec. 336, where a mechanic in performing services for the company made frequent trips on the road going to and returning from his work, and regularly selected the baggage-ear as the most appropriate place for him, with the knowledge of the conductor and without objection from him, it was held that he was not guilty of any negligence in so riding. ^ The Pennsylvania court in referring to the case of Jacobus v. Chicago, &c. R. Co., suprn, observes : " We do not regard it aS entitled to weight as authority. The reasoning of the court is not satisfactory, and the authorities cited do not sustain the position assumed by the learned judge who delivered the opinion." Pennsylvania E, Co. V. Langdon, 92 Penn. St. 21 ; 37 Am. Eep. 659:' 1280 RAILWAYS AS CAERIBES OP PASSENGERS. [CHAP. XVlt. previously stated, it is always a question of fact for the jury wheth^t or not the danger was so obvious that the passenger was bound to see it, and to act upon his own judgment rather than upon the per- missive or active assent of the conductor to the act. The cbntraet of the company with the passenger is impliedly subject to the con- dition that the company will transport him safely, so far as reason- able care upon its part can secure that result, provided the passenger complies with the reasonable rules and regulations which it has establislied to secure his safety, and is not guilty of negligence which brings injury upon himself. If the passenger voluntarily violates these rules, or conducts himself negligently, and in consequence thereof is injured, can it consistently be said that the company should be chargeable with the damages ? In a Pennsylvania case previously cited,^ the court carefully reviews the cases and lays down what we believe to be' the true rule. In that case, the deced- ent was travelling upon the defendant's road, upon a commutation ticket. At the time of the accident, he was riding in the baggage- _ car, in violation of the rules of the company, which were conspicu- ously posted in the baggage-car and elsewhere.^ While the plaintiff's intestate was thus riding in the baggage-car, the train collided with an approaching mail-train, injuring him so severely that his death occurred within a few hours thereafter. Had he been in the smoking- car, or in any of the passenger-cars, he would not have been injwred. After the accident he stated to some of the witnesses, that if he had not gone into the baggage-car he would not have been hurt. Said Paxson, J., " The right of a railroad company to make reasonable rules for its own protection, and for the safety and convenience of . passengers, has been repeatedly recognized.' Such companies are held, and very properly, to a strict measure of responsibility in cases 1 Pennsylvania R. Co. v. Langdoti, 92 tended for their own safety, it being pnr- Penn. St. 21 ; 37 Am. Rep. 651; 1 Am. ticularly dangerous for passengers to be on &, Eng. R. Gas. 87. Compare Creed v. platforms as trains approach stations." Pennsylvania R. Co., 86 Penn. St. 139 ; » Sullivan v. Phila. R. Co., 30 Penn. 27 Am. Rep. 693. St. 234 ; 72 Am. Dec. 698 ; Powell v. 2 The particular rule in question was as Penn. R, Co., 32 Penn. St. 414 ; 75 Am. follows: " They [the tra'in -men] must see Dec. 564; West Chester, &c. R. Co. i: that passengers are properly seated, and Miles, 55 Penn. St. 209 ; 93 Am. Dec. will not allow them to stand on the plat- 744 ; Pittsburgh, &c. R. Co. v. McClurg, forms of the oars, nor ride in the baggage 56 Penn. St. 294 ; Cent. "R. Co. v. Green, or mail cars. Conductors and brnkemen 86 Penn. St. 421; 27 Am. Rep. 718; are instnieted to strictly enforce this rule, O'Donnell v. Allegheny Valley R. Co., 59 and it is expected that passengers will Penn. St. 239 ; 98 Am. Deo. 836. cheerfully comply, as the rule is one in- SEC. 304.] BIDING IN BAGGAGE-CAB, 'ETC. 1281 of injuries to passengers. It is not unreasonable that they should have the right to .'require passengers to observe such j)roper regula- tions as are essential to their own safety. With all the care such corporations can exercise in the perfection of their road-bed and machinery, and in the selection of their servants, accidents involving injuries and loss of life will frequently occur. This must continue to be the case so long as iron and wood are destructible, and depend- ence is placed upon the fidelity, the vigilance, and the judgment of servants. A misplaced switch or an inaccurately worded telegram may send a train to destruction. In such and other like cases, the company is liable to the party injured. The practical impossibility of avoiding all accidents by rail furnishes no good reason why such corporations shall not respond in daihages for the injuries caused by the negligence of their servants, when and so often as the same (Occurs. Such being the measure of their responsibility, may they protect theniselves so far as to ' require passengers to conform to reasonable rules intended to lessen the chances of their being injured? We know of no well-considered case which holds that they may not do so, nor has any sufi&cient reason been shown why , they should not. In doing so, th^y at least seek to guard the lives of their passengers. " The baggage-car is a known place of danger. In this respect it differs from the cow-catcher and the platform only in degree. It is placed ahead of the passenger-cars and next to or near the locomo- tive. In cases of collision, it is the first car 'to give way to the shock, and frequently is the only one seriously injured. It is treated as dangerous by the rules of all well-regulated companies, and the rule of the defendant company emphatically declared it to be so. Au infant or an idiot might be excused for riding in such a position, by reason of his lack of mental capacity, but an intelligent man, accustomed to railroad travel, must be presumed to know its danger. It is patent and the same under all circumstances. Can a passenger who. voluntarily leaves his proper place in the passenger- car, in violation of -the rules of the company, to ride in the bag- gage--car, or other known place of danger, and who is injured in consequence of such violation, recover damages for such injury? We are not speaking of a possible accident, the result of a brief visit to the baggage-car to give some needed direction about a passenger's luggage, to have it re-clipcked, or for any other legitimate purpose, but of a person who rides in a baggage-car in violation of a known rule of 1282 KAIL-WAYS AS CAEEIEES OF PASSENGERS. [CHAP. XVU. the company, and who is injured in consequence of such violation.^ In considering this question, regard must be had to the character fendant, or whether the plaintiff himself 60 far contributed to the misfortune by his own negligence or want of ordinary or common care and caution, that but for such negligence or want of ordinary care and oautioil on his part the misfortune would not have oocurredi In the first case the plaintiff would be entitled to re- cover ; in the latter he would not. Padu- cah, &c. E. Co. V. Hoehl, 12 Bush (Ky.), 41. And this rule applies as well when the negligence of the plaintiff exposes him to the injury as when it co-operates in caus- ing the misfortune from which the injury results. Doggett v. Illinois Cent. R. Co., 34 Iowa, 284 ; Colegrove v. New York, &o. K Co., 20 N. Y. 492 ; Kentucky Cent. E. Co. V. Dills, 4 Bush (Ky.), 693 ; Louis- ville, &c. R. Co. t». Sickings, 5 Bush (Ky.), 1 ; McAunich v. Mississippi, &c. B. Co., 20 Iowa, 345. When a passenger enters a railway train he should take a seat in a passenger-coach if there is room, and if he voluntarily goes to a, position of greater danger, and is injured, the question whether he. is guilty of contributory negli- gence which will defeat his action, will depend upon the nature of the misfortune which resulted in his injury. Lawrence- burg, &c. E. Co. V. Montgomery, 7 Ind. 474. Contributory negligence is a de- fence which confesses and avoids the plain- tiffs case, and must be made out by showing affirmatively, not only that the plaintiff was guilty of negligence, but that such negligence co-operated with the neg- ligence of the defendant to produce the injury. If a whole train be precipitated down an embankment, or through a bridge into deep water, and a passenger seated in the express-car is drowned, his representative will have the same right to recover as the representative of a passen- ger who was seated in a passenger-coach. There could be no pretence for saying that because the passenger in the express-oar was more exposed to danger in case of a collision with a train running in the op- poi^ite direction than he would have been if he had been in a passenger-coach, he ought not to recover, when it is clear that as re- spects the misfortune which actually oo- 1 In Houston, &o. R. Co v. Clemmons, 55 Am. Rep. 88 , 40 Am. Eep. 799, the passenger went into the baggage-car to get some water, there being none in the pas- senger-cars. He remained there about five minutes and the accident occurred, and if he had been in the smoking or passenger cars he would not have been injured. It was held that he could not recover. In Kentucky Central E. Co. v. Thomas, 79 Ky. 160, 42 Am. Eep. 208, the decedent was injured while riding in the express- car. There was a rule of the company that conductors and baggage-masters must not allow any person to ride in baggage, mail, or express cars, whose duty did not require their presence there. The court held that there could be no recovery, — Cofer, C. J., saying : " The decedent went into the express-car and was riding there when the accident occurred. None of the passenger- cars were thrown from the track, and no one In any of them was injured. There was plenty of room in the passenger-cars. It did not appear that the conductor knew the decedent was riding in the express- car. The most important questions in the case grow out of the action of the court in giving and refusing instructions. In the first instruction given for the plain- tiff the court told the jury, in effect, that no fault on the part of the intestate which did not contribute to the wrecking of the train would authorize a verdict for the defendant, on the ground of contributory negligence, and refused to instruct, as asked by the defendant, that it was the duty of the intestate to occupy a seat in one of the passenger-coaches, and that if he went voluntarily into the express- car, and it was more dangerous to ride in that car than in a passenger-car, and if his life was lost in consequence of his being in the express-car, they should find for the defendant. That the intestate was a passenger, and entitled to the privii leges and subject to the duties incident to that relation, is not disputed. When the defence is contributory negligence, the proper question for the jury is, whether the damage was occasioned entirely by the negligence or improper conduct of the de- SBC. 304.] KIDING IN BAG6AGE-CAE, ETC. 1283 of the rule violated. The rules adopted by railroad companies are a part of their police arrangements, Some of them are for the con- venience of the company in the management of its business. Others curred, his danger was not at all increased by the fact that he was in the express- car. So also of a large class of railroad disasters which result from the giving way of the track, or the breaking of some por- tion of a car. These are as liable to occur at one portion of a train as at another, and consequently a passenger is in no more danger of iujury from such accidents in the express-car than in a passenger-car. O'Dopnell v. Allegheny K. Co., 59 Penn. St. 250 ; 98 Am. Dec^ 336. And the fact that he was in that car when the accident oooun-ed would not defeat his right to re- cover, unless perhaps the injury should result from some agency in that car which would not have existed in a passenger-car. But there is another class of disasters in which the danger may be /greater in the expl'ess-car than in the passenger-oar. Ex- press-cars are usually in advance of passen- ger-cars, and in case of collision with stock or other objects on the track, or with trains running in an opposite direction, the danger may be greater In the express-car. The question of contributory negligence may be further affected by other facts. The conductor is, as to the train under his charge, the general agent of the com- pany ; and if a passenger he invited by him to occupy a position more dangerous than a seat in a passenger-car, and the passenger is injured while in that position, the company could not defeat an action for the injury by a plea of contributory negligence. In such a case the act of the conductor would be. the act of the com- pany. Burns v. Bellefontaine R. Co., 50 ■ Mo. 139 , Clark v. Eighth Avenue E. Co., 36 N. Y. 135 ; 93 Afn. Dec. 495. // a conductor requires a passenger to occupy a, dangerous osilion, the company ifiOuM be ■ liable in the same manner as ifU had itself given the order. Ordinarily, it is the duty of a conductor to warn a passenger known to he occupying a dangerous position on the train, and to request him to take a seat in the passenger-ear, and his failure to do so may sometimes be equivalent to the consent of the company that the pas- senger may occupy that position. Burns V. Bellefontaine K. Co., 50 Mo. 139 ; piark V. Eighth Avenue R. Co., 36 N. Y. 136 ; 93 Am. Dec. 495. But he is not hoUnd at the peril of the company, to know that a passenger is in an exposed position, and unless he does know it, the passenger has no right to complain that he was not warned. It is the duty of passengers to occupy the cars provided for them, and the conductor has a right to presume that they: are doing so until he knows the contrary ; and if a passenger goes into the baggage, mail, or express car without the knowledge or consent of the conductor, he will not be permitted to urge as an excuse for remain- ing there that the conductor should have discovered him and ordered him back to his seat, but failed to do so. No one can be permitted to justify or excuse his own im- proper conduct by alleging that it was the duty of another to prevent such conduct on his part. It seems to us therefore that when contributory negligence is inter- posed as a defence to an action against a railroad company for negligently injuring a passenger, and the supposed negligence consists in the fact that the passenger voluntarily occupied a positionin the train which was more dangerous than the posi- tion he should have occupied, the nature of the accident causing the injury is to be considered ; and if upon such consideratioij it appears that the danger of injury from that particular accident was materially in- creased by the fact that the passenger was in that particular place instead of the place he should have occupied, he ought not to recover, unless he was there with the con. sent of the conductor. But if the nature of the accident be such that the danger of injury was not enhanced in consequence of the position occupied by the passenger, or if the accident was of such a nature as was as likely to occur in one portion of the train as another, or if he occupied the place with the knowledge or consent of the conductor, his right of recovery will not be affected by the fact that he was at an improper plage," 1284 RAILWAYS AS CAKKIBRS OF PASSENGERS. [CHAP, XVII. are for the comfort of passengers, and yet others have regard exclu- sively to the safety of passengers, The distinction between thenv and the difference in the consequences of their violation, is manifest. As an illustration : it would be unreasonable to hold that the vio- lation of the rule against smoking could be set up as a defence to an action for personal injuries resulting from the negligence of the company. On the other hand, should a passenger insist upon riding upon the cow-catcher, in, the face of a rule prohibiting it, and as a consequence should be injured, I apprehend it would be a good de- fence to an action against the company, even though the negligence of the latter's servants was the cause of the collision or other acci- dent by which the injury was occasioned. And if the passenger thus recklessly exposing his life to possible accidents were a sane man, more especially if he were a railroad man, it is difficult to see how the knowledge or even the assent of the conductor to his occu- pying such a position could affect the case. There can be no license to commit suicide. It is true the conductor has the control of the train and may assign passengers their seats. But he may not assign a passenger to a seat on the cow-catcher, a position on the platform, or in the baggage-car. This is l^nown to every intelligent man and appears upon the face of the rule itself. He is expressly required to enforce it, and to prohibit any of the acts referred to, unless it be riding upon the cow-catcher, which is so manifestly dangerous and improper, that it h^s not been deemed necessary to prohibit it. We are unable to see how a conductor, in violation of a known rule of the company, can license a man to occupy a place of danger so as to make the company responsible.^ It is otherwise as to rules which are intended merely for the convenience of the com- pany or its passengers. It was said by Woodward, J. ,2 that ' on 1 Further on, in the opinion Judge amount to a waiver as between the passen- Paxson referring to the effect of permis- ger and the company. , But when the rule sion from the conductor to ride in the bag- is for the protection of human life the case gage-car, said : " In a few cases it has been is very different. We are not disposed to held that the assent of the conductor is encourage conductors or other railroad offi- Buificient to charge the company with the cials in violating reasonable rules which are consenuences of such act, that it amounts essential to the protection.of the travelling to a waiver of the rule forbidding passen- jiublio. If it is once understood that a gers to ride in the baggage-car. But how man who rides in a baggage-car in viola- can a conductor waive a rule which by Us tion of -the rules does so at his own risk, very terms he is comTnanded to enforce? He we shall have fewer accidents of this may neglect to enforce it, and when the description." rule is a mere police arrangement of the 2 Jq SuUivan v. Philadelphia R. Co., company, such neglect may perhaps 30 Penn. St. 234 ; 72 Am. Dec. 698. SEC. 304.] HIDING IN BAGGAGE-CAR, ETC. 1285 the part of the passenger, his assent is implied to all the company's reasonable rules and regulations for entering, occupying, and leaving their cars , and if injury hefall him by reason of his disregard of regulations which are necessary to the conduct of the business of the company, the company are not liable in damages, even though the neglige'nce of their servants concuiTed with his own negligence in causing the mischief.' This principle is even broader than the one we are now contending for. We only assert here, that if a pas- senger wilfully violates a known rule intended for Ms safety, and is injured in consequence of such violation, he is not entitled to recover damages for such injury. We are not aware that the foregoing views conflict with any of our own cases. They may not harmonize with some of the dicta which lie scattered through them, but a careful ex- amination of the points decided shows no serious embarrassment." ^ If the rules of the company in this respect are habitually violated, by a passenger without objection, or if a passenger is required by the conductor to ride in the baggage-car, a different question is presented. Thus, in a Pennsylvania case,^ one who was in the employ of the company as a bridge-builder, while riding home from his work vol- untarily went into the baggage-car without the direction or invitation of the conductor. It appeared that be had long been accustomed to do so, and no objection had ever been made, though the conductor had always been aware of his so doing. The court held that he could not be said to have been guilty of any contributory nfegligence in riding where he did ; . that the conductor of the train being clothed with a general authority over matters relating to his train, it was within his discretion to enforce or relax the company's rules to a reasonable extent, and that his allowing the plaintiff to ride in the baggage-car amounted to a consent on the part of the company.* There is a class of cases in which it is held that, even though the rules of the company forbid the act, and the rules are established for the safety of passengers, yet the consent of the employes to their violation is binding upon the company. In Canada,* it is held ' These views so clearly stated have been * O'Donnell v. Allegheny E Co., 59 upheld in many cases. See Creed v. Penn. St. 239 ; 98 Am. Deo. 336. But Pennsylvania, &c. R. Co.', 86 Penn. St. that this case does not cpnflict with the 139 ; 27 Am. Rep. 693 ; Dunn ». Grand views already announced is seen from the Trunk R. Co., 68 Me. 187 ; 4 Anf. Kep. reyiew of this and other cases by Paxson, 267 ; Keith v. Pinkham, 43 Me. 501 j 69 J., in Pennsylvania K Co. v. Langdon, 92 Am. Dee. 807. Penn. St. 21 ; 37 Am. Eep. 651. " O'Donnell v. Allegheny R. Co., 59 * Watson ». Northern Ey. Co., 24 U:: Penn. St. 239 ; 98 Am. Dec. 836. C. Q. B. 98 ; and in Minnesota,' Jacobus 1286 EAILWAYS AS OABElERS OF PASSENGERS. [CHAP. XVII. that a passenger who is riding in a baggage-car against the rules of the company is not precluded from recovering for injuries received by him by a collision of trains, through the gross negligence of the company. In Tennessee,^ a person who had charge of the trains, trainmen, etc., invited some persons who had arrived at the station too late to take an outgoing train, to get on an engine which was at the station, with a view to overtaking the train. The engine overtook the train, but as a collision with the rear car was immi- nent, the plaintiff jumped from the engine, and it was held that the company was liable for the injury. In a case before the Circuit Court of the United States,^ a drover, while riding on an engine with the consent of the engineer, to look after his cattle as was customary, was injured. ' It was contrary to the rules of the company for anyr body to ride on the engine. The question was left to the jury to say whether the company had by its conduct held out its employes to the plaintiff as authorized under the circumstances to consent to his being carried on the train with his cattle.^ An engine is well understood by every one who travels by rail not to be intended for passengers, and no one has any right to suppose that the engineer has any authority to permit passengers to ride upon it instead of in the cars.* Mr. Thompson, in his work upon " Carriers of Passen- ■ gers," ^ states the rule a<icurately thus : " There are certain portions of every carrier's vehicles which are so obviously dangerous for a pas- senger to occupy, that the presence of a passenger there will consti- tute negligence as a matter of law, and preclude him from claiming damages while in that position. For instance, the engine would seem to be a place designed exclusively for the employes of a rail- road company, even in the absence of regulations forbidding the presence of passengers thereon." ^ In another case,^ a laborer of the company on a construction train being told by the person in charge of the train that they were behind time and must hurry, and to jump on V. St. Paul, &B, R. Co., 20 Minn. 125. company cannot recover for an injury Compare ante, n. 1, p. 1284. received while riding there if his position 1 Nashville, &c. E. Co. v. Erwin at all contrihuted to cause the injury. (Tenn. 1883), 3 Am. & Eng. R. Gas. 405. Rohertson v. New York, &c. B. Co., 22 ■i Wateihury v. N. Y. Central R. Co., Barh. (N. Y.) 91. 17 Fed. Rep. 671. ' Thompson's Carriers of Passengers, « See also Wabash, &c. R. Co. v. Shack- 265. let, 105 111. 364 | 12 Am. & Eng. R. Cas. » Dogett v. Illinois Cent. R. Co., 34 166, to the same effect. loWa, 284; Baltimore, &e. R. Co. v. Jones, * Robertson ». New York, &o. R. Co., 96 U. S. 439. 22 Barb. (N. Y.) 91. Therefore one who ' Baltimore, &c. E. Co. v. Jones, ^96 rides on it in violation of the rules of the U. S. 439. SBC. 304.] KIDING IN BAGGAGE-CAR, ETC 1287 anywhere, climbed upon the pilot of the engine, and riding there was injured by a collision of the engine with a car. It was held that he could not recover. Said Swayne, J. : " As well might he have obeyed a suggestion to ride on a cow-catcher, or put himself on the track before the advancing wheels of a locomotive." Where, how- ever, a railway company should undertake to carry a person as a • passenger upon a locomotive, it would be liable to him as a common carrier of passengers. But there is a large class of cases in which it is held, or inti- mated, that a person who places himself in a dangerous position "by the directidn of the conductor of a train, where the danger is not so obvious as t6 call upon him to oppose his own judgment to that of the conductor, may recover if injured while in such position. Thus, where a drover was directed by the conductor to get out of the caboose in which he was riding and get on top of the train, as the caboose was to be left, and was told that another would be attached further up the road,, and the drover, the car being at rest, did as directed, and while upon top of the train, by the backing and jerking movements of the train was thrown off and injured, it was held that he might recover.^ In all such cases, however, it seems to be the rule that, if the danger is obvious, and such as a reasonable man would not have incuffed, the passenger must' not assume the^risk.^ A person who rides upon a freight train, or a gravel train even, and pays his fare to the person in charge of the train, although the orders of the company to the persons in charge of the train are to take no passengers, is nevertheless entitled to recover for an injury received through negligence of the company to which he has not contributed.* ' Indianapolis, &c. R. Co. v. Horst, 93 or notice. He was unaware of danger un- U. S. 291. The court said : " We have til the catastrophe was upon him. The said that riding on the top of a freight-car behavior of the conductor was inexcusable, at night involved peril. When com- If there was fault on the part of the plain- manded to go there the plaintiff had no tiff, in what did it consist ? We find noth- choice but to obey, or leave his cattle to ing in the record wl>ich furnishes any war- go forward without any one to accom- rant for such an imputation." ^ pany or take care of them. The com- * Hazard ti. Chicago, &o. R. Co. , 1 Biss. mand was wrong ; to give him no (U. S.) 603 ; Pittsburgh, &c. R. Co. v. warning was an aggravation of the wrong. Krause, 30 Ohio St. 220 ; Chicago, &c. R. He, however, rode safely to the switch, Co. w. Randolph, 53 111. 510 ; Jefferson- standing in one place. He had a right to ville, &c. R. Co. v. Swift, 26 Ind. 459. assume that the posture and place would ' Keith o. Pinkham, 43 Me. 501 ; 69 continue to be safe. He had no foreknowl- Am Dec. 80; Dunn v. Grand Trunk R. edge of the coming shock. The company Co., 58 Me. 187 ; 4 Am. Rep 267. knew it, but gave him no word of caution 1288 RAILWAYS AS CAREIEKS OF PASSENGERS. [CHAP. XVII. Where a company is accustomed to carry passengers on freight trains it is bound to exercise the greatest possible care and diligence of which the management of such trains is admissible. It seems that in regard to the coach in which the passengers are to ride the duty is the same whether it is a part of a passenger or of a freight train , the same is of course true as regards the condition of its road- bed and bridges.^ But as to other appliances the duty of the com- pany is modified by the necessary difference between passenger and freight trains, and it is bound to use only such care in this regard as the nature of the train will permit.* .Thus, while a company might properly be held negligent in failing to provide a means of commu- nication between the conductor and engineer on a passenger train, it cannot be said that the same would be true in the case of a freight train which had a single passenger-coach attached.' A passenger in riding on a mixed train must assume all the risks which are necessarily incident to such, travel, and cannot insist, upon the same care and attention which he might demand on a regular passenger train.* If a railway company, said Appleton, J.,^ " ad- mits passengers into a caboose-car, attached to a freight train, to be transported as passengers, and takes the customary fare for the same, it incurs the same lia,bility for the safety of the passengers as though 1 Missouri Pao. E. Co, v. Holcomb, 44 Am, & Eng. R Cas. l.'iQj Thomas v. Chi- - Kan, 332; 44 Am. & Eng. R. Cas. 303. cago, &o. R. Co',, 72 Mich. 355 ; 37 Am. In this case the regular cabopse used for & Eng. R. Cas. 108 ; New York, &c. R. passenger traffic on freight trains was in Co. v. Doane, 116 Ind. 435; 37 Am. & the repair-shop, and the company was using Eng, R, Cas. 87 ; Southern Kansas R. Co. temporarily a common box car with crude v. Hinsdale, 38 Kan. 507; 84 Am. & Eng. accommodations. The use of such a box- E.' Cas. 256, n.; Way v. Chicago, &o. R. car being more dangerous the company was Co., 78 Iowa, 463; 34 Am, & Eng. E, Cas. held to a higher degree of care. The 286. plaintiff, while sitting in such car, having, ' Oviatt v. Dakota Cent. R, Co,, 43 been thrown off the seat by a violent jerk Minn. 300; 44 Am.'& Eng R Cas. 311, n. of the car whereby she sustained severe * Crine v. East Tenn., &c, R, Co,, 84 injuries was allowed to recover. Compare Ga. 651 ; 44 Am. & Eng. R. Cas. 312, n. Crine «. East Tenii., &o. R. Co., 84 Ga. (passenger injured by sudden jolting of the 651 ; 44 Am. & Eng, R. Cas. 312, note, car caused by coupling parts of the train), where.a passenger injured by being thrown Browne v. Raleigh, &c. R. Co., 108 N, C. off his seat by a sudden jerk was not 84 ; Fisher v. Southern Pac. E. Co., 89 allowed to recover, it appearing that the Cal. 399. See as to the obligation of the jerk was necessary in the coupling of ears, company to run passenger trains when i!^ Crine v. East Tenn,, &o. R. Co., 84 possible, Arkansas, &c, R. Co. v. Canman, Ga. 651; 44 Am. & Eng. R. Cas. 812; 52 Ark. 517; 44 Am. & Eng. E. Cas. Missouri Pac. R. Co. «. Holcomb, 44 Kan. 811, n. 332 ; 44 Am. & Eng. R. Cas. 803; White- « In Dunn v. Grand Trunk R. Co., 68 hted V. St. Louis, &e. R. Co., 99 Mo. 363; Me. 187 ; 4 Am. Rep. 267. See also 39 Am. & Eng. R, Cas. 410 ; Wallace v. Pennsylvania R. Co. v. Newmeyer, 129 Western N, Car, R. Co., 101 N. C 464; 87 Ind. 401. SEC. 304. J KIDING IN BAGGAGB-OAE, ETC. 1289 they were in the regular passenger-coaches at the time of the occur- rence of the injury .1 The plaintiff was not entitled by law to be carried on the freight train contrary to the regulations of the defend- ant company. . They might have refused to carry him, and have used force to remove him from the train. Not doing this, nor even request- ing him to leave, hut suffering him to remain, and recdv^ing from him the ordinary fare, they must be held justly responsible fornegligence or want of care in his transportation. The question before the court was whether the defendants were liable at all as common carriers. The defence was based entirely upon a regulation of the company. There was no question raised as to the general obligations of carriers. Iiideed, none is raised at the arguments The counsel for defendants rest their defence on the rules of the company. The plaintiff heid paid the usual fare, of a first-class passenger. The defendants had received it, and had undertaken the transportation of the plaintiff in their freight train, during the course of which he was injured by their neglect or want of care. Under such circumstances, the judge said that they could not plead their regulation in release of their ordinary liabilities, but they were just as liable as if it had been a passenger train, and as if there had been no notice, provided plaintiff was not guilty of any fault or want of ordinary care himself. " Undoubtedly a passenger taking a freight train takes it with the increased risks and diminution of comfort incident thereto ; and if it is managed with the care requisite for such trains, it is all those who embark in it have a right to demand.^ ' We have said in a former case,''' observes Breesk, J., ' that a passenger takes all the risks inci- dent to the mode of travel, and the character of the means of con- veyance which he selects, the party furnishing the conveyance being only required to adopt the proper care, vigilance, and skill to that particular means ; for this, and this only, was the defendant respon- sible. The passengers can only expect such security as the mode of conveyance affords.' If there was any peculiar risk incident to transportation on a freight train, the counsel should have called the attention of the court to such special difference, whatever it may be. But ' the responsibility of a railroad company for the safety of its 1 Edgerton v. New York, &c. E. Co., action for an injury received in conse- 39 N. y. 227. quencB of his riding there. Powers v. ^ Chicago, &c. R. Co. v. Hazzard, 26 Boston, &o. R. Co., 1.53 Mass. 188. 111. 373. It is therefore held that where ' Chicago, &c. R. Co. v. Fay, 16 111. one rides on a freight train contrary to the 568. orders of the company, he has no right of , VOL. II. — 31 1290 RAILWAYS AS CABKtBRS OF PASSENGERS. [CHAP. X¥II. passengers does not depend on the kind of cars in which they are carried, or on the fact of payment of fare by the passenger.' ^ ' The evidence,' says Walker, J., in that case, ' shows that the road had been carrying passengers on their construction grains, and they must be held to the same degvee of diligence with that character, of train as with their regular passenger-coaches, for the safety of the persons and lives of their passengers.' If the defendants claimed that they might exercise a diminished degree of caution arising from the character of the train, they should have requested a correspondr ing instruction.'' In order to exonerate the carrier on the ground that the passenger was riding in the baggage-cai; or other place of danger in violation •of the company's regulations^ it is not enough merely to prove the fact that he was so riding at the time of the injury ; it must be shown that siich riding was a proximate cause of the injury, — in other words, that if the passenger had been where he should have been according to the company's regulations he would not have sustained the injury.^ Where one rides on a stock-car in pursuance of a special contract with the carrier, his riding in such a place does not constitute con^ tributory negligence, because he is lawfully and prqperly there, though it may be obviously a more dangerous place than another to which he has access. ^ So where a person desiring to accomplish a special errand rides on a hand-car by permission of the train- master and in ignorance of the latter's lack of authority to grant such permission, he is a passenger to whom the company owes the exercise of care to protect him from injury.* Sec. 305. Duty as to stopping of Trains, for Passengers to alight. — The trains must be stopped at the station so that passengers can 1 Ohio, &o. E. Co. V. Muhling, 30 111. New York, &c. E. Co., 151 Mass. 462, a 9 ; 81 Am. Dec. 336. passenger in the smoking-car, seeing a ooj- Webster v. Rome, &o. R. Co., 115 lision inevitable, went into a baggage-car N. Y. 112 ; Jones v. Chicago, &c. E. Co., in order to be pre-pared to jump, and did 43 Minn. 279 ; 44 Am. & Eng. R. Cas. jump before the trains collided. The 357 ; Davies v. Mann, 10 Mees. & W. court heM that the question as to whether 545; s. c. 2 Thomp. on Neg., 1105 ; he was negligent or not in so doing should Hutchinson on Carriers (2d ed.), § 654. be. submitted to tlie jury. See also ante, The contributory negligence which pre- p. 1282 n. vents recovery for an injuiy, however, must » Lawson «. Chicago, &o. E. Co., 64 be such as co-operates in causing the in- "Wis 447 ; 21 Am. & Eng. R. Cas. 249 ; jury, and without which theinjury would Florida R. Co. v. Webster 25 Fla 894. not have happened." Lehigh Valley E. i International, &c. E. Co. v. Prince; E.Co. V. Greiner, 113 Penn. St. 600;- 28 77 Tex. 560; 44 Am. & Eng. E. Caa. Am. & Eng. R. Cas. 397. In Cody v. 694. SEC. 305.]. DUTY AS TO STOPPING OP TRAINS, ETC. 1291 alight upon the platform, and if they are stdpped at any other place, and the station is called, so that passengers are required, or have a right to understand that they are required to stop there, the com- pany is liable for injuries received in leaving such place, to the same extent and upon the same ground that it would be liable for injuries reeeived from the defectiveness of its own premises.^ The stoppage 1 Colupibus, kc, R. Co. v. Farrell, 31 Ind. 408- ; Bacher v. N. Y. Oeutral E. Co., 98 N. Y, 128 ; Memphis, &e. R. Co. v. Whitfield, 44 Miss. 466 ; 7 Am. Rep. 699 ; Edgar v. Northern- R. Co., 11 Opt. App. 482; 22 Am. & BJng. E. ,Cas. 432 ; Nance v.. Carolina Cent. R. Co., 94 K. C. ,619'; 26 Am. & Gng. R. Cas. 223. See also post, § 312. In Delamatyr v. Milwaukee, &o,R. Co., 24 Wia. 578, the plaintiff re- ceived an injury wliije descending- from the, defendant's train at Hanover Junc- tion, as was alleged by reason of the de- fondant not having famished a safe and proper means of descent. The train con- sisted of only two- oars, of which the one in the rear was the ladies' car, and the other a gentlemen's car, immediately in front of which was a baggage-car. When the ti'ain stopped at the junction the plaintiff was seated in the ladies' car. By direction of the brakemmk she passed . through the gentlemen's car to the oar- platform at its front end for the purpose of descending there. Their steps attached to this platform had not been drawn up opposite to the station-walk or platform. The platform was only a few inches abov& the rail, and nearly two and a half feet below the lower oar-step, and was over three fset from the rail horizontally. The plaintiff could not reach the station plat- ilbrm by stepping down in the usual man- ner, but was obliged to jump some distance obliquely. The grownrt imme- diately apposite the steps was niuddy and slanted away rapidly from the ends of the ties so as to make a kind of pit, unsuitable for a landing-place. The sister of the plaintiff had got off at this point, safely, ifnmediately before the plaintiff attempted to do so. The plaintiff descended to the lower step holding a sunshade and basket in one hand, and her skirts with the other, hesitated, and made some femarks about the impracticability of alighting there, but being encouraged by her sifter, took the hand of the latter and sprang for the plat- form. As she sprang her skirts caught upon a part of the brake, and she fell in such a way that her head and shoulders and a considerable portion of her body rested upon the station platform, and in the fall broke her arm. No officer or em- ploy^ of the company was present to aid her in alighting. Under this state of facta it was held that the plaintiff was entitled to recover. In commenting upon the question whether the plaintiff under the circumstances was guilty of such contrib- utory negligence as would prev€nt a recov- ery by her. Cole, J., very pertinently said ; " As a matter of law, to ebaraeterize this conduct of hers as careless and negli- gent, wonld seem to be manifestly unwar- ranted, " and it was left for the jury to say whether in fact the condact of the plain- tiff was so negligent as to estop her from a recovery. A similar doctrine was held in Robson V. Northeastern Ey. Co., L. E. 10 Q. B. 271 ; 12 liloak's Eng. Rep. 302, where a passenger of a railway is invited to alight at a spot where there is no plat- form, so that usual means of descent are absent; the duty of the railway company not to expose the passenger to undue danger requires them to provide some reasonably fit and safe substitute ; and, in the case of a female passenger, a jury may reasonably find that the company fails in this duty where the only means of alighting provided are the usnal iron step and footboard, with no attendants to assist the passenger in alighting. Plaintiff, a female, was a passenger by defendant's railway to B., a very small station ; on, the arrival of the train at the station the engine and part of the carriage in wh^ch plaintiff was riding were drivcA past the end of the platform, which is short, and came to a standstill, the door of the plaintifTs compartment being be■^ 1292 RAILWAYS AS CAKRIERS OF PASSENGERS. [CHAP. XVII. must be sufficieutly long to allow passengers a reasonable tijpe to alight in, safety, and the company is responsible for an injury result- ing from the sudden starting of a train while a passenger is in the act of alighting therefrom.^ It is the duty of the company to stop its train at a station long enough to give all passengers desiring to stop there time to get out of the cars, and failing to do so, if a passenger while the cars are in- motion, but before they have acquired rapid motion, jumps from the cars and is injured, there are cases which hold the company liable therefor unless under the circumstances the jury find that the attempt to alight was negligence.^ But in the principal case maia. taining this view,^ the train was moving very slowly at the time the passenger alighted, and the court merely held that in view of this and other circumstances the case should be submitted to the jury. It appears to us that in view of the danger which necessarily attends yond the end of the platform. Upon the train stopping plaintiff rose and opened the door, and stepped on to the iron step , she looked out and saw the station-master, who is the only attendant kept there, taking luggage out of or putting luggage into a van. She did not see the guard or any other railway servant, and she stood on the step looking for somebody to help until she became afraid of the train moving away ; and, no one then coming, she tried to alight by getting on to the footboard ; she had her back to the car- riage, and she had hold of the door with her right hand, and got one foot on to the footboard, and whilst endeavoring to get the other foot on to the footboard sKe lost her hold of the carriage-door, and slipped and fell and was injured. .She had a small bag on her left arm, and an um- brella and two small articles in her left hand, but nothing in her right hand. The judge having nonsuited the plaintiff on the above evidence, with leave to enter a verdict for the plaintiff, it was held, first, that there was evidence from which a jury might have properly found that the plaintiff was invited or had reasonable ground for supposing she was invited to alight by the company'* servants ; and that the defendants had failed in their duty towards the plaintiff, and had not provided a reasonable substitute for a platform. Also, that the jury might not improperly have found that the expecta- tion of being carried beyond the B. sta- tion was reasonably entertained by the plaintiff, and that the inconvenience would have been such as not to render it imprudent on her part to expose herself to the danger incurred In alighting ; and that the defendants were, therefore, liable for the injury resulting from the plaintifTs act, which had been caused by their negli- gent breach of duty ; and that the non- suit was therefore wrong, and the verdict ought to be .entered for the plaintiff. 1 Bartholomew v. N. Y. Central B. Co., 102 N. Y. 716 ; Black v. Brooklyn City R. Co. 108 N, Y. 640. 2 Filer ». N. Y. Central R. Co., 49 N. Y. 47 ; 10 Am. Rep. 327 ; Bucher v. N. Y. Central R. Co., 98 N. Y. 128 ; Lloyd V. Hannibal, &c. B. Co., 53 Mo. 509 ; Illinois Central R. Co. v. Able, 59 III. 131. 8 Filer u. New York Cent E. Co., 49 N. Y. 47 ; 10 Am. Rep. 327. Here the brakeman told passenger, a woman, to get off, saying the train would not stop. See Solomon v. Manhattan R. Co., 103 N. Y. 437. Where the evidence as to whether or not the train was in motion is conflicting, the question must be submitted to the jury ; the company is entitled to a special finding as to the fact in such a case. Sher- wood V. Chicago, &c. R. Co., 82 Mich. 374 ; 44 Am. & Eng. R. Cas. 337. SEC. 305.] DCfTY AS TO STOPPING OF TRAINS, ETC. 1293 such an act it should be held as a matter of law that it is negligence to attempt to board or to alight from a train while it is in motion, and the question should not be left to the jury unless there are ex- ceptional circumstances tending to, excuse or justify the act. And the great weight of authority favors this view.^ The failure of the company to stop its train at a station as it ought to do, or to stop it for a sufficiently long time, does not justify a passenger in leaving a moving train ; ^ his proper course is to be carried on until the train 1 Knight V. Pontchartrain R. Co., 23 La. An. 462 j Hutener v. New Orleans, &c. R. Co., 23 La. An. 492 ; New York, &c. B. Co. V. Enches, 127 Penn St. 316 ; 39 Am. k Eng. R. Cas. 444 ; Whelan v. Georgia, &c. R. Co., 84 Ga. 506 ; 44 Am. & Eng. R. Cas. 335 ; Pennsylvania R. Co. e. Lyons, 129 Penn. St. 113 ; 41 Am. & Eng. R. Cas. 154 ; Eicketts v. Birming- ham, &c. R. Co., 85 Ala. 600 ; 37 Am. & Eiig R, Cas. 12 ; Central R. Co. v. Letcher, 69 Ala. 106; Savannah, &c. R. Co. v. Watts, 82 Ga. 229. "It is, we think, the general rule gf law established by the decisions in this and other States, that the boarding or alighting from a moving train is presumably and generally a negligent act, per se, and that in order to rebut this presumption and justify a recovery for the injury sustained in getting on or off a mo v- ing train, it must appear that the passen- ger was, by the act of the defendant, put to aif election between alternate dangers, or that something was done or said, or that some direction was given to the pas- senger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and WoS calculated to divert his attention from the danger and create a confidence that the attempt could be made in safety." An- drews, J., in Solomon v. Manhattan R. Co., 103 N. Y. 437 ; 27 Am. & Eng. R. Cas. 158. Under the statute in Iowa regulating this subject, to entitle a pas- tengcr to recover for an injury suiitained in alighting from a, moving train it must be shown that he was an employe in the performance of his duty, or that the con- ductor had consented to his so alighting. Raben v. Chicago, &c. R. Co., 74 Iowa, 732 ; 31 Am & Eng. R. Cas. 45 ; Lindsey V Chicago, &c. R. Co., 64 Iowa, 407. See also Vimont v. Chicago, &o. R. Co., 64 Iowa, 513 In the case of Illinois Central R. Co. «. Slatton, 54.111. 133 ; 5 Am. Rep. 109, it appeared that the train upon which the pas- senger was travelling, having stopped at a station, remained a reasonable time for passengers to alight, but he, not availing himself of the opportunity, waited until the train began to move, when, in attempt- ing to leave the cars, he was fatally in- jured. It was held that the company was not liable, there being no proof of mis- management of the train or careless con- duct of the employfe, , 2 Little Rock, &c. R. Co. v. Tanktrsly, 54 Ark. 25 ; Walker v. Vicksburgh, &c. R. Co., 41 La. An. 795 ; 41 Am.- & Eng. R. Cas. 172 ; Watson ». Georgia Pac. B.' Co., 81 Ga. 476 ; Jarrett v. Atlanta, &c. R.Xo., 83 Ga. 347; Nichols v. Dubuque, &c. R. Co , 68 Iowa, 732 ; 27 Am. & Eng. R. Cas. ]83; Porter v, Chicago, &e. R. Co., 80 Mich. 156 ; Nelson v. Atlantic, &c. R. Co., 68 Mo. 593 ; Kansas City, &c. E. Co. V. Fite, 67 Miss. 373 ; New York, &c. R. Co. V. Enches, 127 Penn. St. 316 ; 39 Am. & Eng. R. Cas. 335 ; East Tenni, &c. R. Co. «. Massengale, 15 Lea (Tenn.), 328 ; Jewell v. Chicago, &c. E. Co., 54 Wis. 610; 41 Am. Rep. '63 ; Houston,, &c. R. Co. V. Leslie, 67 Tex. 83 ; Rich- mond, &c. R. Co. V. Morris, 31 Gratt. (Va. ) 200. The mere desire to prevent anxiety on the part of friends or relatives who are expecting him will not authorize a passenger to leave the train while it is ' in motion. Lake Shore, &c. R. Co. v. Bangs, 4*7 Mich. 470.-. The fact that the name of the station has been called, and that other passengers are getting out, do not excuse the act of leaving the moving train. England v. Boston, &c. R. Co., 1294 RAILWAYS AS CARKIEBS OP PASSENGEEs! [CHAP. XVM. Stops, and if he sustains pecuniary or other loss from being carried beyond his station his remedy lies in an action for damages. ^ There are a large number of cases which hold that it is for the jury to say Whether the act of a passenger in leaving a stHet-car constitutes negligence.^ and very properly so. But manifestly these cases rest on an entirely different state of facts from those under consideration in this section. It is a matter of common observation that male passengers regularly board street-cars and leave them while in motion ; such an act is the rule rather than the exception. The cars are low and easily boarded, and move comparatively slowly. The circumstances plainly are widely different from those which attend the boarding or leaving a moving railroad train. A passenger has no right to do what is obviously dangerous,- although he is advised to do it by the company's agents.. Thus, information by the conductor of a freight ti'ain to a passenger of mature age, and accustomed to railroad travelling, that persons sometimes debarked at a particular place, does not justify the passenger in taking the risk of leaving the car at such place, and if he does so he must bear the consequences.^ 153 Mass. 490, Nor will the faot that other persons bad jumped from the train at the same place and under similai' cir- cumstances, without injury, excuse the passenger's act. Lake Shore, &c. B, Co. V. Bangs, 47 Mich. 470 ) 3 Am. & Eng. R. Gas. 426. In Adams v. Louisville, &o. R. Co., 82 Ky. 603 ; 21 Am. & Eng. R. Cas. 880, it appeared that the plaintiff, on a dark night, was a passenger in the rear car of a railroad train. As the train wa9 approaching a refreshment station, the plaintiff arose and left the train while it was slowing up, but before it had actually stopped. In doingso, he stepped* from the car-step through a trestle, and falling upon stones in the bed of the creek below, was injured. In an action by him, it was alleged that the company was negligent in placing the sleeper in front of his car, so as to make it the last car in the train. The court held that there was no ground for an action. 1 " If a passenger, by the negligence of the agents of the railroad company, is carried beyond the station where he has a right to be let off, he can recover for the inconvenience, loss of time, and the labor and expense of travelling back ; but if he leaps from the train while in rapid motion in order to avoid being carried beyond hU stopping'plaoe, he does so at His own risk. " H6uGH, J., in Nelson !> Atlantic, &c. R. Co., 68 Mo 595. ^ Briggs V. Union St. R. Co., 148 Mass. 72 ; 37 Am. & Eng. R. Caa. 204 ; Booth's Street Ry. Law, § 837. » Chicago, &c. R. Co. v. HaZzard, 26 111. 373. See also Herman v. Chicago, &c. R. Co., 79 Iowa, 161 ) Kansas City, &c. R. Co. V. Fite, 67 Miss. 373. While the rule of the text is generally true, it is not so in' all cases. The Supreme Court of Minnesota upholds what appears to us to be a very just exception. The passenger having been injured by leaving a moving train, the questions of negligence and con- tributory negligelice were, on the trial, sub- mitted to the jury. The court, in sustaining the verdict, 8aid ; " Ordinarily a passen- ger would be held not to be justified in getting off a train while it is in motion, excejit at his own risk. Unless the train is moving very slowly, and the circum- stances are especially favorable, it would be deemed prima fadi negligeHoe. It is SBG. 305.] /DUTY AS TO SI'OPPING OF TEAINS, ETC. 1295 There may be cases, however, in which a passenger may be justified in leaving a moving train, or iu which the circumstances are such which render the question a proper one for the jury; Tlius, where a passenger is placed in a position of great peril in eiqusequence of the negligence of the company or by the direction of its agent, and to escape he alights from the train, it is for the jury to say whether his act Vvas one of negligence or not. ' So where a lady passenger, alone on not necessarily so, however, and the cit- cumstarices presented By the record were such in this cise as to make the question one for the jury. He [the passenger] claims to have been mistaken as to the speed of the train. He was directed [by the con- ductor] to make haste to get ofT. He Might assume that the conductor knew all about the place and the movements of the train, and that it would b6 necessary to obey orders to avoid baing carried beyond his destination. He was suddenly waked out ol' his sleep, and did not understand that the train was moving rapidly. These circumstances were proper to be considered, and were stifHeient, ^-6 think, to justify the trial court in submitting the caSe to the jury." Jones v. Chicago, &c. B. Co., 42 Minn. 183. Citing Filer v. New York Central R Co;, 49 N. Y. 47 ; 10 Am. Eep. 327 ; Shannon «. Boston, &e. R. CO,, 78 Me. 60 ; 23 Am. & Eng. R. Cas. 511 ; Pool V. Chicago, &c. R. Co., 56 Wis. 236 j 8 Am. & Eng. R. Cas. 360. See also Ashton 11. Detroit City R. Co., 78 Mich. 687 ; 41 Am. & Eng. R. Cas. 235, where plaintiff, a lady, was held to have been justified in leaving a moving car, when she did it to avoid insult. ' Pennsylvania R, Co. v. Lyons, 129 Penn. St. 113 ; 41 Am. & Eng. R. Gag. 154. See alsb opinion in Nelson v. Atlantic^ &c. R. Co., 68 Moi 595, where this doc- trine is stated, though the case did not call for its application. ThuSj in a Pennsyl- vania case, A., a passenger, was aWakened in the night by a jar, caused by the train being thrown from the track. Perceiving that the car was being dragged over the sleepers, he left his seat and, following an employ^ of the company, jumped from the platform and was injured. The car was dragged but a short distance beyond the point where A jumped, and all the other passengers, who remained in the cars, escaped utihutt. The derailment of the train was caused by the decayed tondition of the ties. In an action by A. against the company to recover damages for his injury, the court IBft the question to the jury whether he had jumped from appre- hension of danger' which did not exist, or under circumstances making it a reasonable act of prudence on his part, instructing therii that in the fornier event he could not recover, but that in the lattet event he might. It was held that this was not error, Pittsburgh, &c. B. Co. v. Rohr- man, 12 Am & Eng. R. Cas. 176. If a passenger, alaiTued by the peril apparently occasioned by the derailment, but acting as a person of ordinary prndettce would in like cirdumstances in endeavoring to escape; goes to the platform of the car, and jumps or is pushed off by the motion of the.car, or the other pissengets, he may recover. Smith v. St. Paul, &e. E. Co., So Minn. 169. It is not necessarily negligent in a pas- seijger to jtinip off a railway train in fast motion to avoid a collision, even if he Would have escaped injury by remaining in his seat. Thus, in Wilson v. Northern Pacific R. Co., 26 Minn. 278, the court said : " It is well settled, with reference to the liability of common carriers of pas- sengers, that if, through the negligence of the carrier, a passengei is placed in a situ- ation of great peril, the attempt of the fiassenger to escape the danger, even by doing an act also dangerous, and from which injury rpsults, is hot necessarily ' an act of contributory negligence, such as will prevent him recovering fOr the injury ^Istaiiled. If it were, passengers Would be required to suppress the instinct of self-preservation, and sit passive, to receive whatever might helall them, instead of acting as nature impels every mail to act. The test of contributory negligence, where 1296 RAILWAYS AS CARKIEBS OF PASSENGERS. [ CHAP. XVII. a car, in order to avoid insult from the company's servant, leaves the car while it is in motion, her conduct in doing so is not necessarily negligent but must be left to the jury.i So also, as said in a lead- ing case,2 " for a person to jump from a car propelled by steam, tha passenger is injured in endeavoring to escape the peril in which the negli- gence of the earner has placed hira, is, " was the attempt an unreasonable, precipi- tate, or rash act, or was it an act which a person of ordinary prudence might do ? This is not determined by the result of the attempt to escape, nor by the result that would have followed had the attempt not been made. To permit that to determine it would be, in effect, to require of the passenger to judge with absolute certainty the extent to which the danger would go if he made no move, and with like cer- tainty the consequences of the attempt tft escape. In the case at bar, no degree of prudence, and, it is doubtful if any de: gree of skill and experience in operating railroads, would enable one t" determine with certainty that he would not be in- jured if he remained in the car, nor that he would be injured if he left it. The passenger in such a case must of necessity ' judge of the danger in remaining where he is, as also of the danger in attempting to escape, by the circumstances as they then appear to birti, and not by the result. He acts upon the probabilities as they then appear to him, and if he acts as a man of ordinary prudence would in such case act, he will choose the hazard that from these circumstapces appears to him to be the least. If plaintiff did so act (supposing him to have jumped from the car, as claimed by defendant), then the attempt to escape was not contributory negligence. Stokes V. Saltonstall, 13 Pet. (U. S.) 181; Buel r. New York Central R. Co., 31 N. Y. 314 ; 88 Am. Dec. 271 ; Twpmley V. Central Park', &c. K. Co. 69 N. Y. 158; 25 Am. Rep. 162. ' That he was injured in his attempt to escape, and that those who remained in the car were unhurt, might of course be considered by the jury in deter- mining this question." In the case of Savannah, &o. R. Co. v. Watson, 89 Oa. 110 ; 14 S. E. Rep. 890, it appeared that the plaintiff, who was a waiter in a hotel near the station, took dinner to the con- ductor on defendant's train, as was his cus- tom and duty, and in getting off the train while in motion was injured. There was evidence that the conductor told him to jump from the train, and on his objecting said that if he did not jump, he (the con- ductor) would " kick him off." It was held that the evidence warranted a verdict for the plaintiff. In the case of Shannon v. Boston, &c. R. Co., 78 Me. 52 ; 23 Am. & Eng. R. Cas. 511, it appeared that a lady, waiting at a railroad station for passage upon a train soon to depart, was invited by the ticket-agent to sit with other ladies in an empty c4r standing on the side track, while the station-room was being cleaned. The train, to which the car was attached began to be moved without conductor or brakeman on board, and without signal or notice The ladies were startled and alarmed lest they should be carried away, and they hastened tb the rear of the car and jumped out while the car was still abreast of the platform, and apparently mov'ing slowly. The plaintiff was thrown down and injured. It was held that she was a passenger, and that her conduct was not conclusively negligent. 1 Ashton V. Detroit City R, Co., 78 Mich. 587 ; 41 Am. & Eng. R. Cas. 235. 2 Dossw. Missouri, &c. R. Co., 59 Mo. 37; 21 Am. Rep. 371. For other cases in which the court has held that it is not neces- sarily negligent to leave a moving train, see Louisville, &c. R. Co. v. Crunk, 119 Ind. 542 ; 41 Am. & Eng. R. Cas. 158 (person assisting feeble passenger, not given time to leave train) ; Little Bock, &c. R. Co. V. Atkins, 46 Ark. 423 ; St. Louis, &c. R. Co. V. Rosenbury, 45 Ark. 256 ; Central K. Co. V. Miles, 88 Ala. 256, A pimsen- ger on a freight train attempted to alight at a point where the train was stopped short of the station, but was told by the brakeman to remain aboard as the train would soon be moved farther down. Upon its failure to stop again on being moved, the brakeman directed him to get off, and SEC. 305. J DUTY AS TO STOPPING OP TEAINS, ETC. 1297 when it is in rapid motion, may be regarded as mere recklessness ; but to step from a car not yet beyond the platform, and whose motion is so slight as to be almost or quite imperceptible, may not be neg- ligence, and whether it is or not, is for the jury to decide from the physical condition of the person and all the attendant circumstances." Again, where the risk or danger of leaving the moving train is not apparent to a passenger, arid- he is urged to take the hazard by the company's employes whose duty it is to know the danger, and he does so, he is not chargeable with negligence, when the danger . is obviously slight. He has the right to rely upon the judgment of the conductor whose duty and experience he may presume gives him a special knowledge in such matters. So if a passenger leaps- from a moving train under the belief justified by the conduct of the conductor , that he would be ejected if he did not go voluntary or without force, he is blameless. The company being the author of the original peril would be^ liable for the consequences. But if he has no cause for such belief he is guilty of negligence.^ The company is bound to stop its trains a reasonable time for all the passengers who desire to stop at the Station to get off, and out- going passengers to get on , ^ and tbe question as to whether the train was stopped a sufficient time is one of fact for the jury, and depends, assisted him to do so, and in the attempt telegraphic orders, and that the station was the passenger sustained injury. It was not a telegraph station is admissible. St. held that the^ company could not defend Louis, &c. K. Co. v. Rosenbury, 45 Ark. on the ground that it was the custom for 256. passengers on the freight train to leave at ^ Swigert v. Hannibal, &o. E. Co., 75 the place where the train first stops, nor Mo. 475 ; Wkbash, &o. R. Co. v. Rector, that the contract of'carriage was complete 104 111. 296. Where a person goes aboard as soon as plaintiff had an opportunity to a train with the knowledge of the con- leave the train. Eddy v. Wallace, 49 Fed, ductor, not to take passage but to assist a Rep 801 ; 4 U. S. App. 247 ; 52 Am. & feeble relative, he is- a passenger for the Kng. 11 Ciis. 265. time being, and it is the duty of the coni- 1 St. Louis, &o. E. Co. V. Rosenbury, pany to allow the train to remain ptation- 45 Ark. 256. It is not negligence for the ary a sufficiently long time for him to conductor to refuse to stop his train at a leave it, and if it does not he is not neces- station forbidden by the regulations of thfe sarily guilty of contributory negligence in road to land a passenger who has embarked leaving it while it is in motion. Louis- on the train without attempting to learn ville, &c. E. Co. v. Grunk, 119 Ino. 542 ; whether it would stop there though the 41 Am. & Eng. R. Cas. 159. The rule is conductor has taken up his ticket. In an different if the conductor was not aware action for damages resulting to a passenger of his presence on the train. Coleman v. from a refusal of the conductor to stop his Georgia, &o. E. Co., 84 Ga. 1 ; 40 Am, & train at the passenger's station, evidence Eng. E. Cas. 690 ; Griswold v. Chicago, for the company not only that the train " &c. R. Co., 64 Wis. 652 ; 23 Am. & Eng. was a through freight train, but also that K. Cas. 463. it was not running on schedule time, but on 1298 RAILWAYS AS CAllEIERS OF PASSENGERS. [CHAP. XVII. not upou the time designated in the company's Aime-table, but upoh the circumstances of each case. The number of passengers who are to get on or off", the facilities for leaving and boarding the train are circumstances which must be considered in determining what length of time is reasonable.^ If the train is moving slowly, and there is no obvious danger in getting off', it cannot be said to be negligence per se to make the attempt, especially if the passenger is directed to do so by the conductor or brakeman ; and it would be error to instruct the jury that such an attempt per se constituted contributory negligence.^ In this, as in reference to all other matters where the safety of passengers is concerned, the company owes a duty to the passenger to act with proper care and caution ; and if the motion of the train is not entirely stopped, and the passenger is expressly or impliedly invited to leave the train while moving at a slow rate of speed, he has a right to presume that it is safe for him to do so ; and the company, having virtually told him that it was safe, is estopped from saying that the passenger was guilty of negligence in doing what it had advised him to do. The passenger may not in all cases rely upon the assurances of the company in this respect, but must exercise his own judgment where there is reason seriously to doubt the soundness of the advice, but as between a mere doubt and the experience and superior knowledge of the company's officers and agents, he has a right, to give way to the latter, unless the rate of speed at which the train is moving is such as would prevent a man of ordinary prudence from acting upon it. But if he attempts to leave the train when it is moving faster than a very slow rate of speed, or against the advice of the conductor, and when he is told that the train will be stopped, he cannot recover.^ 1 If the train was not Stopped the Mo. 27 ; 21 Am. Eep. 371; St. Louis, &c. usual time, this fact may be shown. K. Co. v. Rosenbury, 45 Ark. 256 ; Straus Thus, on the trial of an action for an v. Kansas City R. Co., 75 Mo. 185; 6 injury alleged to have resulted from the Am. & Eng. R. Cas. 884. See also Plop- cars not stopping at a station a reasonable pir v. N. Y. Central R. Co., 13 Hun (N. time for the passengers to alight, — which Y.), 625, all of which hold that it is not was controverted by the defendant, — the iiecessarily negligence for a passenger to plaintiff offering evidence to show the leave a train moving very slowly, usual and customary period of the cars' « See Solomon v. Manhattan R. Co., stopping at that place, it was held that 103 N. Y. 437 ; 27 Am. & Eng. R. Cas. such evidence was admissible. Fuller v. 158 ; Nelson v. Atlantic, &c. R. Co., 68 Ntugatuck R. Co., 21 Conn. 557. Mo. 598 ; Davis v. Chicago, &c. R. Co. 18, " See Filer v. New York Cent. R. Co., Wis. 175 ; Chicago, &c. B. Co. v. Ran- 49 N. Y. 47 ; 10 Am. Rep. 327 ; Cum- dolph, 58 111. 510. berland Valley R. Co. v. Mangans* 61 In Penn. R. Co. v. Aspell, 23 Penn. Md. 53 ; Doss v. Missouri, &o. R. Co., 59 8t. 147, the plaintiff took passage from ggC. 305.] DUTY AS TO STOPflNG Off TRAINS, ETC. 1299 As a rule it may be said that where a passenger, by the wrongl'ul act of the company, is compelled to choose between leaving the cars Philadelphia for Mofgah's Corner in Mai'ch, 1851, on the night line. Just before reachiug the latter place, the agent endeavored to give the nsual Signal to thfe engineer to stop, by pulling the bell-rope. The rope did not operate, though the speed of the train wa^ checked by the engineer in order the more safely to jiasa certain Switches. The speed of the train increasing, other signals were made to the engineer to stop ; liut whilst the train was in motion the plaintiff leaped frotu the car, though warned by the con- ductor and brakenian not to do so, and in- formed that the train would be stopped iind backed to the Station. The plaintiff's foot was injured. The court below charged that the pnlltDg the bell-rope, and jhe announcemeat of Morgan's Corner, warned the plaintiff that he had arrived there, and was expected to prepare for leaving ; that though he was warned not to jump, he could nevertheless recover for the injury received; that the agents of the company, in announcing to the passengers the place of arrival while the cars were in motion at the rate of from seven to ten miles an hour, did not exercise the degree of dili- gence and care which the law required ; that Ihe train should have been stopped before such announcement as to the place was made. It was further charged that in this case a contract existed, and the train should have been stopped; tha,t the an- nouncement of Morgan's Corner caused the plaintiff, in going to the platform, to be in a position of danger, and although it was im- prudent in the plaintiff to jump from the car, though warned of -the danger, yet the agents of the company beipg in fault, the plaintiff could recover'. It was further ' charged that the imprudence of the plain- tiff Might be considered by the jury in fix- ing the damages. The plaintiff had a verdict, but the Supreme Court reversed the case, Black, C. Ji, saying in the course of his opinion ; " It has been a rule of law from time ifilmemotial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties. 'When it can be shown that it would not have happened except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained. A railroad company is not liable to a passenger for an accident which the passenger might have prevented by Ordinary attention to his own safety, eveh though the agents in charge of the train are also remiss in their duty. From these piinoiples it follows very clearly that if a passenger is negligently^ carried be3'ond the station Where he intended to stop, and where'he had a light to be let off, he can recover compensation for the inconvenience, the loss of time, and the labor of travelling back, because these are the direct consequences of the wrong done to llim. But if he is foolhardy, enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence, for which he can blame nobody but himself. If there be any inan who does not know that such lAps are extremely dangerous, especially when taken in the dark, his friends should see that he does not travel by railroad. It is true that a person is not chargeable with neglect of his own safety when he exposes himself to one danger by trying to avoid another. In such a case, the author of the original peril is answerable for all that follows. On this principle we decided last year at Pittsburgh, that the owners of a ' steamboat wliich was endangered by ft pile of iron wrongfully left on the wharf, and to get clear of it was backed out into the stream, where she was struck by a coal- boat and sunk, had a good cause of action against the city corporation, whose duty it was to have removed the iron. If, there- fore, a person should leap from the car under the influence of a well-grounded fear that a fatal collision is about to take place, his claim against the company for the in» jury he may suffer Will be as good as if the same mischief has been done by the ap- prehended collision itself. "When the negli- gence of the agents puts a passenger in such a situation that the, danger of remdining on the car is apparently as great as would be encountered, in jumping off, the right to compensation is not lost by doing the 1300 RAILWAYS AS CARKIBRS OP PASSENGERS. [CHAP. XVII. while tliey are moving slowly, or submitting to the inconvenience of being carried by the station where he desires to stop, the company is latter; and this rule holds good even where the event has shown that he might have remained inside with more safety. Such was the decision in Stokes v. Saltonstall, 13 Pet. (U. S.) 181, so much relied on by the defendant in error. A passenger in a stage-coach, seeing the driver drunk, the horses mismanaged, and the coach about to upset, jumped out and was thereby much hurt. The court held the proprie- tors of the line responsible, because the misconduct of their servant had reduced the passenger to the alternative of a dan- gerous leap or remaining at great peril. But did the plaintiff in the present case suffer the injury he- complains of by at- tempting to avoid another with which he was threatened'? Certainly not; he was in no possible danger of ajiy thing worse than being carried on to a place where he did not choose to go. That might have been inconvenient, but to save himself from a mere inconvenience by an act which put his life in jeopardy, was inexcusable raini- ness. Thus far I have considered the case without reference to certain facts disclosed in the evidence which tend to diminish the culpability of the defendants' agents, while they aggravate (if anything can aggravate) the folly of the plaintiff. When he was about to jump, the conductor and the brakeman entreated him not to do it, warned him of the danger, and assured him that the train should be stopped and backed to the station. If he had heeded them, he would have been safely let down at the place he desired to stop at, in less than a minute and a half. Instead of this, he took a leap which promised him noth- ing but death ; for it was made in the darkness of midnight, against a wood-pile close to the track, and from a car going probably at the full rate of ten miles an hour. Though these facts were uncon- tradicted, and though the court expressed the opinion that no injury would have happened to the plaintiff but for his own imprudence, the jury were nevertheless in- structed that the defendants were bound to compensate him in damages. The learned judge held that the. cases of mutual neglect did not apply, because this action was on a contract. Now, a party who violates a contract is not liable, any more than one who commits a tort, for damages which do not necessarily or immediately result from his own act or omission. In neither case is he answerable for the evil consequences which may be superadded by the default; negligence, or indiscretion of the injured party. There is no form of action known to the law (and the wit of man cannot invent one) in which the plaintiff will be allowed to recover for an act not done or caused by the defendant, but by himself. When the train ap- proached Morgan's Comer, some one (prob- ably the conductor) announced it. Much stress was laid on this fact. The court said in substance, that to make such an announcement before the train actually stopped was a want of diligence, whereby the plaintiff was thrown into a position of danger ; and though he was warned not to jump, yet, having done so, he could make the company pay him for the hui't he re- eeived. We think this totally wrong. It is not carelessness in a conductor tc notify passengers of their approach to the station /at which they mean to get off, so that they may prepare to leave with as little delay as possible when the train stops. And we cannot see why such a notice should put any man of common discretion in peril. It is scarcely possible that the plaintiff could have understood the mere announce- ment of Morgan's Corner as an order that he should leap, without waiting for a halt. It he did make that absurd mistake, it was amply corrected by the earnest warnings which he afterwards received. The^-emark of the court that life and limb should not be weighed against time, is most true; and the plaintiff should have thought of it when he set his own life on the hazard of such a leap, for the sake of getting to the ground a few seconds earlier. Locomotives are not the only things that may go off too fast; and railroad accidents are not always produced by the misconduct of agents. A large proportion of them is caused by the recklessness of passengers. This is a great evil, which we would not willingly encour- age by allowing a premium on it to be ex- SEC. 305.J DUTY AS TO STOPPING OF TRAINS, ETC. 1301 liable for the consequences of the choice, provided it is not exercised negligently or unreasonably. Thus, where a passenger had bought a ticJiet and desired to stop at F., where the train was advertised to stop, and it did not stop entirely,, but, while 'it was moving very slowly by, the plaintiff was directed by a brakeman to get ofp, and told that it would not stop or move more slowly, and another pas- senger got off safely, and in attempting to follow him the plaintiff was injured, it was held that leaving the cars under such circum- stances was not, as a matter of law, negligence,.but the question was a proper one for the jury.^ But it must be understood that the mere inconvenience or annoyanc-e in heing carried past his destination does not justify a passenger in leaving the moving train. If he is carried beyond his station he has a remedy against the company in an action for damages •, but if he leaps from the moving train, he must assume all the risk. ^ If the train stops, hut is started again while the passenger is in the act of leaving it, and without giving him a reasonable time for that purpose, and an injury results, the company is liable.^ It is not in itself sufficient to charge the company in such cases that the conductor advised the passenger that he could safely jumji from the train. The passenger must use his own judgment.* The rule in reference to this matter may be said to be that if the plaintiff leaped from the car on the suggestion of the conductor, and the con- ductor only gave it as his opinion that the plaintiff could leap frpm the train in safety, it was the plaintiff's duty to exercise his judgment whether or not it was safe ; and if the danger was so apparent that a prudent man similarly situated would not have attempted the leap . from the train, then the plaintiff was guilty of negligence, and should not be permitted to recover.^ But in Georgia it has been held other- torted from companies. However bad the K. Co., 9 La. An. 441 ; 61 Am. Dee. 214; behavior of those companies may sometimes Penn. R. Co. v. Aspell, 23 Penn. St. be, it would not be corrected by making 147 ; 62 Am. Dec. 323 ; Illinois Central them pay for faults not their own. The R. Co. v. Able, 59 111. 131; Gavett v. court should have instriicted the jury that Manchester, &o. R. Co., 16 Gray {Mass.), the evidence, taken altogether (or even ex- .501 ; 77 Am. Deo. 422 ; Jefferson ville E. chulingthat for the defence), left the plain- Co. v. Hendricks, 26 Ind. 228; Je'fferson- tiff without the shade of a case." ville, &c. R. Co. v. Swift, 26 Ind. 459; 1 Filer v. N. Y. Central R. Co., 49 N. supra, p. 1293. Y. 47 ; 10 Am. Eep: 327. « Jeffersonville R, Co. v. Hendricks, 26 = Little Eock, &c. R. Co. v. Tankersly, Ind. 228. hi Ark. 25 ; Walker v. Vicksburgh, &c. * Jeffersonville R. Co. v. Swift, 26 Ind. R. Co., 41 La. An. 795 ; 41 Am. & Eng. 459. ■ R. Cas. 172 ; Damont v. New Orleans, &o. ' Chicago & Alton R. Co v. Randolph, 1302 EAILWAYS AS CAEBIEBS OF PASSENGERS. [CHAP. XVII, wise ; and where a railroad carnpaay accepts the fare of a passenger to a particular station on its road, it is bound to stop its train at that station, that he may get off the qars ; it is not sufficient that the speed of the cars is slackened ; and if, after passing tlie station, the speed of the cars is again slackened, that the passenger, may get off, and, if he does get off under the directScin of the conductor, and in so doing gets injured, the company is liable. It doeg not amount to a want of ordinary care for a passenger prudeptly to use the means which the company affords him to get off the train.* The rule as stated by an eminent authority appeaA to embody the true principle here : " The passenger may, however, safely" rely on the judgment of the carrier, or those who represent him, where it is not plainly open to his observation th^t reliance will e;cpo,se him to a danger that a prudent and reasonable man would not incur, and he cannot be charged with contributory negligence in obeying the directions of the carrier or his agents, unless'suoh obedience leads to a known and obvious danger which a reasonable and prudent man would not incur." ^ When a passenger enters a railway train and pays the regular fare to be transferred from one station to another> hist contract does not obligate the corporation to furnish him with safe Ingres? and egress at an intermediate station; and where such passenger, at an intermediate station, where the train is awaiting the passage of another train, without objection made or notice given, leaves the cars, he does no illegal act, but, for the time being, he surrenders his place as a passenger, and takes upon himself the direction and responsibility of his own motions during his absence. , When a train is about to start, the proper employes should give reasonable notice 63 111. 510 ; 5 Am. Rep, 60. "Where the i Georgia R. Co. ». McCurdy, 45 Ga. danger is obvious and great the direction 288 ; 12 Am. Hep. 577. of the conductor eannot justify the act of 2 Hutchinson on Carriers (2d ed.), § leaving a train while it is in motion. 661 c, citing Jones v. Chicago, &c. R. Co:, Lindsey v. Chicago, &c. E. Co., 64 Iowa, 42 Minn. 183 ; 41 Am. & Eng. B. Cas. 407 ; 18 Am. & Eng. R. Cas. 179 ; Vi- 169 ; Kansas, &c. R, Co. v. Dorough, 72 fflont V. Chicago, &e. B. Co., 69 Iowa, 296; Tex. 108j Baltimore, &c.. R. Co. v. Kanp, 71Iowa, 58 ; 28 Am. & Eng. B. Cas. 210j 69 Md. 11 ; St. Louis, &c. R. Co. v. Can- Bardwrill v. Mobile & Ohio R. Co., 63 Miss, trell, 37 Ark. 519 ; 40 Am. & Eng. E. Cas. 574; South, &o. R. Co. v. Sohaufier, 75 106; Fowler k. Baltimore, &c. R. Co., 18 Ala.^ 186. And the character of the dan. W. Va. 679 ; 8 Am. & Eng. R. Cas. 480; ger is said to be a question for the jury. Louisville, &c. E. Co. v. Kelly, 92 Ind. Bucher v. N. Y. Central R. Co., 98 N. Y. 871 ; Hanson v. Mansfield, &c. R. Co., 38 128 ; International, &c. R, Co. v. Hasaell, La, An. Ill ; 58 Am. Rep. 162 ; Indian- 62 Tex. 256, apolis, &o. B. Co. v. Horst, 93 U. S. 291. SEC. 305.] DUTY AS TO STOPPING QP TRAINS, ETC. 1303 for such passenger to return to the ear, arid if there is an established signal by blowing the whistle, that shonld also be given. But if the passenger goes out of sight and out of reach of the voice which gives the usual loud and distinct notice for all passengers to repair on board, the corporation is not required to send after him.^ The rule is that if a railroad company undertakes the carriage of passengers to an intermediate point on its road, it is bound to stop there a suffi- cient length of time to enable, all the passengers to alight whose desti- nation is at that point ; and if a passenger is injured in consequence of the starting of the train before a sufficient time has been given to alight, the company is liable in damages ; ^ and in an action to recover damages for injuries suffered by a passenger in leaving a train, alleged to have occurred by reason of the train not being stopped at a station long enough to enable the plaintiff to leave it in safety, it was held error for the court to refuse to instruct the jury that if the train had stopped "a sufficient time for the plaintiff to leave it, upon the platform .where passengers leaving the defendant's cars usually land, and had again started on its course and had passed the plat- form, and the plaintiff then left the platform of the car, rather than be carried by, he was guilty of carelessness and could not recover in the action ;" and that " if the train stopped a sufficient time to allow the plaintiff to get off, then the defendant was not guilty of neg- ligence in its management." ^ In an action for an injury to a passenger, caused by leaping from a box-car while the train was ,stopped at the station to which the plaintiff had taken passage, no means of descent being provided, it was held that an instruction to the effect that if the plaintiff leaped from the car without being in peril, or having reason to believe that she was in peril, and the injury thereby resulted, she could not re- cover, was held to be properly refused, because it did not contain the 1 State V. Orand Trunk R. Co<, 58 Me. with another instruction to the effect that 176 ; 4 Am. Rep. 258 if the plaintifT was guilty of negligence in 2 Pennsylvania R. Co. ». Kilgore, 32 jumping from the car, she could not re- Penn. St. 292 ; 72 Am Dec. 787. cover. And the evidence disclosing that ' Davis V. Chicago, &o. R. Co., 18 Wis. the plaintiff leaped from the cars merely 175. In an action for an injury to a pas- to prevent being carried on, and that she senger occurring while getting off the oars, was at the time warned that it was dan- Instructiona to the jury to the effect that gerous, and so thought herself, it was held if the want of proper care or skill on the that she could not recover, she having part of the conductor caused the injury, contributed to the injury by her negli- the defendant would be liable, were held genoe. Evansville, &o. R. Co, v. Duncan, not to be en-on?ous, taken in connection 28 Ind. ii. 1304 RAILWAYS AS CARKIEKS OF PASSENGERS. [CHAP. XVII. further element that the circumstances might he such that the plain- tiff might reasonably have apprehended injury from the leap.^ But no recovery can be had if the cars are under such motion as to render it obviously dangerous for a person to attempt to leave them ; ^ and under such circumstances it is not sufficient to charge the company that the conductor advised the passengers to make the attempt. It is the duty of the passenger to exercise his own judgment, and if the dangel- was so great that a man of ordi- nary prudence would not have attempted it, he is guilty of such contributory negligence as bars a recovery .^ When the danger is apparent, it must not be braved simply because the company is bound to stop the train, or because it is very important that the pas- senger should stop at that particular time. The company, in such case, is bound to respond in damages for its breach of duty in not stopping, but is not liable for- injuries received by the passenger in at- tempting to leave when it is dangerous for Mm ta do so.^ But in all cases the question of liability must necessarily be determined by the facts and circumstances of each case, — whether the train was in rapid motion, whether it was started while the passenger was at- tempting to leave, and whether the real danger was obvious.^ 1 Evansville, &c. E. Co. v. Duncan, 28 Y 556) reversed this judgment, and held Ind. 441. See Illinois Central E. Co. v. that the company was not responsible for Slatton, 64 111. 193 ; Penn. R. Co, v. Kil- injuries to the person assisting her, and gore, 32 Penn. St 292 ; Southwestern E. that the plaintiflfherself was guilty of neg- Co. V. Panlk, 24 Ga. 856 ; Lambeth v. ligence in attempting to leave the train North Carolina B. Co., 66 N. C. 494 ; while the cars were in motion. Morrison v. Erie R. Co., 66 N. Y. 302 ; ^ Damont v. New Orieans, &c. R. Co., Dougherty v. Chicago, &o. R. Co., 86 111. 9 La. An. 441 ; Jeffersonville, &c. R. Co. 467 ; Wyatt v. Citizens' R. Co., 55 Mo. v. Hendricks, 26 Ind. 228 ; Penn. R. Co. 485; Karle ». Kansas City, &c. R. Co., 55 v. Aspell, 23 Penn. St. 147; Gavett ». Mo. 476 I Meyer v. Pacific, &e. R. Co., Manchester, &o. E. Co., 16 Gray (Mass.), 40 Mo. 151 ; Smith v. Union R. Co., 61 501. Mo. 588. In Burrows v. Erie R. Co., 8 8 Chicago, &c. R. Co. v. Randolph, 58 Th. & C. (N. Y.) 44, the plaintiff, a lady. 111. 510 ; Jeffersonville, &c. E. Co. v. was about to alight at a station just as the Swift, 26 Ind. 459 ; Chicago, &a. E. Co. train began to move slowly, another pas- v. Hazzard, 26 111. 873. senger attempted to assist her. She had * Georgia R. Co. v. MoCurdy, 45 Ga. several parcels in her hands. While at- 288. tempting to help her off, the passenger « Jeffersonville, &c. R. Co. v. Hen- assisting her was turned around and dricks, 26 Ind. 228 ; St. Louis, &c. R, Co. obliged to step off, and in doing so, pulled v. Cantrell, 37 Ark. 519. But see Bnr- the plaintiff off with him, ard she was rows ». Erie R. Co., 8 Th. & C. (N. Y.) injured. The General Term held that the 44, in which it was held that no recovery plaintiff was not necessarily negligent in could be had where the injury was brought attempting to alight, hut that the question about by the action of a person not in the whether she was so or not, was for the employ of the company, jury. But the Court of Appeals (63 N. SEC. 305.] DUTY AS TO STOPPING OF TRAINS, ETC. 1305 It is a part of the company's duty not only to stop the train, but also to have it remain stationary for a sufficient length of time for pas- sengers to alight safely, and it is responsible for injuries sustained by the sudden starting of trains while a passenger is in the act of alighting.! Thus, in a case before the Michigan Supreme Court, a passenger, after the name of the station was called, went to the platform while the train was slackening up, and asked the conductor if it would stop there for water. The conductor said it would. The passenger then got upon the lower step of the platform, and when the train stopped at the usual landing-place tried to step off But immediately, and without any notice or signal, the train started with a jerk, and drew up at the water-tank, a few feet farther on, throw- ing the passenger to the ground and severely injuring him. It was held that he had a right of action against the company.^ In a Maryland case,^ a young man in the full possession of all bis physical and mental faculties, having a valise containing clothing in his right hand, and a basket of provisions on his left arm, attempted in broad daylight to leave a railway train while it was moving slowly, the distance from the lower step of the car to the platform being only eighteen inches, and in doing so was seriously injured. In an action of damages against the railroad company, it was held that he was not necessarily negligent. The court said : " Accidents occur, and injuries are inflicted under an almost infinite variety of circumstances ; and it is quite impossible for the courts to fix the standard of duty and conduct by a general and inflexible rule appli- cable to all cases, so that a departure from it can be pronounced 1 Wood V. Lake Shore, &e. R. Co., 49 15 ; Illinois Central E. Co. v. Green, 81 Mich. 370. • 111. 19. 2 Wood V Lake Shore, &c. R. Co., 49 Where, after coming to a full stop, and Mich. 370; s. P. Santer v. TS. Y. Central while passengers were alighting, the train R. Co., 66 N. Y. 50; Mitchell v. Chidago, was suddenly moved without warning, it &c. R. Co., 51 Mich. 236;'McNulta (re- is immaterial whether the motion is back- ceiver) v. Ensch, 134 111. 46 ; 24 N. E. wardor forward. Thata passenger, injured Rep. 634. But in another case a different under such circumstances, was intoxicated, view is taken. The passenger, as the would not exonerate the company. Such train approached the station and was still intoxication wouM have consideration upon moving slowly, stood on the lower step of the -question of contributory negligence, a car, in' the act of stepping to the platform Milliman v. N. Y. Central R. Co., 4 Hun of the station, when, in consequence of the (N. Y.), 409 ; 66 N. Y. 642. But an in- car being moved forward with a jerk, he jury to which the iiitoxication of the pas- was thrown upon the platfoi-m and injured. sengeV has contributed will not render the It was held that he was guilty of contribu- carrier liable. Weeks v. New Orleans, &c. tory negligence in attempting to alight R. Co., 32 La. An. 615. from the train while it was in motion. ' Cumberland Valley R. Co. v. Man- Secor V. Toleflo, &c. R. Co., 10 Fed. Rep. gans, 61 Md. 53. TOL. n. — 32 1306 RAILWAYS AS CABBIEKS OF PASSENGERS. [CHAP. XVII. n^ligence in law. There is no general accord of judicial; opinion and precedent in reference to attempts to leave a car while it is in motion, but the weight of a-uthority is against the proposition that it is always, as matter of law, negligence and want of ordinary care for a person to attempt to get off from a car when it is in motion. This proposition was pressed upon the Court of Appeals of New York ; ^ but FoLGER, J., in delivering the. opinion of the court in that case, said : ' Were I disposed to accede to it upon principle, which I am not, I should feel myself precluded by prior decisions of this court, and influenced to a contrary conclusion by those of other courts. The rule established, and as I think the true one, is that all the circumstances of each case must be considered, in determining whether in that case there was contributory negligence or want of ordinary care ; and that it is not sound to select one prominent and important fact which may occur in many cases, and to say, that being present, there must, as matter of law, have been contributory negligence. The circumstances vary infinitely, and always affect, and more or less control, each other. Each must be duly weighed and relatively considered, before the weight to be given to it is known.' " ^ Railway companies are bound to bring their ti-ains to a halt at places cowvenient and safe for passengers to alight.^ In an English case,* it appeared that the, car in which the plaintiff rode, being the last car, remained about four feet from the platform when the train had stopped, and the plaintiff, in attempting to alight, believing she was about to step on the platform, fell, in consecjuence of the insiifl&- ciency of light at that point, and Was injured. It was held that the plaintiff could recover. In this case, Cockburn, C. J., said ; " An invitation to passengers to alight on the stopping of a train, without any warning of danger to a passenger who is so circumstanced as not to be able to alight without danger, such danger not being visi- ble and apparent, amounts to negligence ; . . . and it appears to us 1 In the case of Morrison v. Erie R. Co., 54 111. 20; Curtis v. Detroit, &c. R. Co., S8 N. Y. 302. 27 Wis. 158. See also Swigert ». Han. & 2 Johnson v. West Chester, &e. R. Co., St. Jo. R. Co., 75 Mo 475 ; Central R. & 70 Penn. St. 857 ; Penn. R. Co. v. Kilgore, Bank Co. v, Letcher, 69 Ala. 106 ; 44 Am. 32 Penn. St. 202 ; Doss v. Missouri, &c. Rep. 505. R. Co., 59 Mo. 27 ; a. o. 21 Am. Rep. 871 ; » Delamatyr v. Milwaukee, &o. R. Co., Filer v. S. Y. Central R. Co., 49 N. Y. 24 Wis. 518 ; post, § 312. 47 ; 10 Am Rep. 827; Lambeth v. Nort;h * Cockle «. Southeastern By. Co., L. Carolina, &o. R. Co., 66 N. C. 494 ; 8 Am. R. 7 C. P. 821. Rep. 508 ; Chicago, &c. R. Co. v. Baddsley, SEC. 305.J DUTY AS TO STOPPING OF TRAINS, ETC. 1307 that the bringing up of a train to a final stand-still, for the purpose of the passengers' alighting, amounts to an invitation to alight, — at all events, after such a time has elapsed that the passenger may rea- sonably infer that it is intended he should get out if he proposes to alight at the particular station." ^ Reasonable time for leaving the cars should be allowed, and if the time-tables do not allow sufficient time for all passengers, whether young or old, to leave the cars in safety, and an injury is thereby occasioned, the conipany will be liable.^ But sick per- 1 Prseger v. Bristol & Exeter Ry. Co., 24 L. T. Rep. N. s. 105 was a. case ex- actly similar, and the plaintiff recovered. In Colorado, &c. R. Co. v. Farrell, 31 Ind. 408, where the train passed beyond the platform and stopped, leaving one of the cars over a culvert, the conductor announc- ing the name of the station, and a passen- ger in attempting to alight was injured by reason of darkness and not being able to see where the car was, the company was held liable. Whittaker v. Manchester, &c. Ey. Co., L. R. 5 C P. 464, was a case pre- cisely similar, and^the plaintiff was allowed to recover. But in Bridges v. North London Ry. Co., L. R. 6 Q. B. 377, it was held that where a passenger alighted from the last car of a train, while such car was standing in a tunnel in the vicinity of a station, a recovery could not be had for the death of tte passenger in consequence, there being, no evidence that the train had come to a final stand-still, or to a place where the company designed the passenger should alight. See also Siner t>. Great- Western Ry. Co., L. R. 4 Exch. 117 ; Frost V. Grand Trunk R. Co., 10 Allen (Mass.), 387. In Forsyth v. Boston, &c. R, Co., 103 Ma.ss. 510, where a passenger, on alighting from a car at night, instead of walking along the platfonn to the end steps, voluntarily stepped off the side into a cattle-guard, althongh knowing where the highway crossed the railroad track, it was held that he was not in the exercise of due care, and could not recover for injuries thus ocea.sioned. 2 Toledo, &o. R. Co, v. Baddslev, 54 111. 19; 5 'Am. Rep. 71. In Kelly v. Hannibal, &c. R. Co., 70 Mo. 604, the plaintiff, a passenger, was injured in trying to leave a train under slow motion, having been negligently carried past his destination The court below nonsuited . the plaintiff, and this was reversed, the court holding that the question of negli- gence was one for the jury. The court said, "In the case of Doss v. Missouri, &c. R. Co., 59 Mo. 27, 21 Am. Rep. 371, it was held that whether thfe attempt of plaintiff to step from the cars while the train was in motion was, under all the cir- cumstances of the case, such negligence as would relieve defendant of all liability for accident, was a question of fact for the jury. For a person to jump from a car propelled by steam while in rapid motion, is mere recklessness, and the leap must be made at his peril ; but to step from a car not beyond the platform when its motion is slight or almost imperceptible may or may not be negligence, and of this the jury are to decide from all the attending circum- stances." In this case the plaintiff was not a passenger, but had got upon the train to assist some friends, and the train started without sufficient notice. Wyatt v. Citi- zens' R, Co , 55 Mo. 485 ; Karle v Kansas City, &c. R. Co., 55 Mo. 476 ; Lloyd v. Hannibal, &o. R. Co., 53 Mo. 609 , 56 Mo. 338. " These are risks which the most prudent men take, and plaintiff will not be barred of a recovery if he adopted that course which the most prudent men would take under the ciicumstarices. Smith v. Union R. Co., 61 Mo 588 ; Meyer v. Pacific R. Co,, 40 Mo. 151. "If a pas- senger be negligently carried beyond his stopping-place, and where he had a right to he let off, he can recover for the incon- venience, loss of time, and expense of travelling hack. But when he jumps, or leaves the train, under circumstances which prudence would forbid, he does it at his 1308 EAILWAYS AS CAKEIEKS OP PASSENGEKS. ICUAP. XVII, sons, and persons unable to take, care of themselves should provide ^ themselves with proper assistants while travelling in railroad^cars ; ' own risk and assumes the consequences of his own act." Damont v. New Orleans, &c. R. Co., 9 La. An. 441 ; Pennsylvania R. Co. V. Aspell, 23 Penn. St. 147 ; Jef- fersonville, &o. R. Co. v. Jefferson,^26 Ind. 228 ; Morrison v. Erie R. Co., 56 N. Y. 302 ; Burrows v. Erie R. Co., 63 N. Y. 556 ; Dougherty v. Chicago, &o. R. Co., 86 111. 467 ; Lucas v. New Bedford, &c. R. Co., 6 Gray (Mass.), 64. If the conductor has given sufficient time for passengers to alight, a passenger who jumps from the train after it has started is remediless. Strauss it. Kansas City, &c. R. Co., 75 Mo. 185 ; Swigert v. Hannibal, &c. R. Co., 75 Mo. 475. It was said by the court in Damont o. New Orleans, &c. R. Co., 9 La. An. 441, •" If a passenger is foolhardy enough to jump off without waiting for a train to stop, he does it at his own risk, and for this, his own gross imprudence, he can blame no one but himself." In Bon V. Railway Passenger Co., 56 Iowa, 654, which was an action to recover weekly, compensation under an accident policy, which insured the plaintiff against acci- dents while actually riding on a public conveyance "in compliance with all rules and regulatious of the carriers, and not neglecting to use due diligence for self- protection,'' — it was held that for an in- jury received by hira while riding on the steps of a railway-car, in violation of the known rules of the company, he could not recover upon the policy. Secor u. Railroad Co., 10 Fed. Rep. 15 ; Chicago, &e. R. Co. V. Scates, 90 111. 586 ; Gavett v. Midland R. Co., 16 Gray (Mass.), 501. In Hiekey V. Boston, &c. R. Co., 14 Allen (Ma.9s.), 429, the rule was stated to be that a per- son cannot recover for injuries received while voluntarily and unnecessarily stand- ing upon the platform of a car while in motion. Nichols v. Middlesex R. Co., 106 Mass. 463 ; Harvey v. Eastern R. Co., 116 Mas?. 269; Indianapolis, &c. R. Co. V. Able, 59 111. 131 ; Burrows v. Erie R. Co., 63 N. Y. 556 ; reversing 8 Th. & C. (N. Y.) 544; Ohio, &c. R. Co. v. Schiebe 44 111. 560 ; Jeffersonville R. Co. v. Swift, 26 Ind. 459. In Lake Shore, &o. R. Co. v. Bangs, 47 Mich. 470, it was held that it is negligent in a passenger to leap from a train moving six miles an hour, for the purpose of getting off at a station where the train should, but does not stop, although he does so to save anxiety to his mother who is expecting him, and althouf;h others have frequently jumped off trains going at that rate of speed. The court said : " We have reluc- tantly felt ourselves compelled to hold that in our judgment such conduct is beyond any question negligence, and that the jury should have been so instructed. The fact that many persons take the risk of leaving cars in motion does not make them any the less risks which they have no right to lay at |;he door of the railroad companies. No company can use efi'ectively coercive pow- ers to keep passengers from doing such things. AH persons of sound mind must be held responsible for knowledge of the usual risks of such travelling. Every one is supposed to know tbat a fall beside a moving train is very likely to bring some part of the body or limbs in danger of being crushed. Every one is supposed to know that in jumping from a' vehicle running six miles an hour or much less, he stands a good many chances of falling or being unable to fully control his move- ments, and that falling near a train is always dangerous. No doubt every one who tries such an experiment persuades himself that he will escape, but it is im- possible to suppose that any one of com- mon-sense does not know that there is . danger. It is true that there are circum' stances where it is not negligence to take a choice of risks or where an act is done without freedom of choice. But the com- mon-sense of mankind teaches us that no one has a right to risk life or limb merely to avoid inconvenience. Upon the facts in this case no one can doubt that the railway agents were wrong in not stopping at the station. If put to any inconven- ience by beinft carried further. Bangs had a legal remedy for it. No doubt the vexation and anxiety would lead to some trouble of mind, but they cannqt be held sufficient to justify running into bodily danger." See also Chicago City E. Co. ». Mumford, 97 111. 560. SEC. 305] DUTY AS TO STOPPING OF TEAlNS, ETC. 1309 and if a person is sick or infirm and unable to walk without assis- tance, thereby requiring longer delay at the station than usual, he should give timely notice to the conductor.^ But when such notice is given, or the company's agents have kbowledge otherwise of the passenger's infirmity, the train must be stopped a sufficient time for him to alight safely regardless of whether more or less of the schedule time is required.^ ^ Passengers at intermediate stations, where trains stop for refresh- ments, have the same rights in reference to safe egress and ingress, and proper station accommodations and platforms, as at the termini of the passage.^ But the rights of the passenger while a train is stopping 1 New Orleans, &c. R. Co. v. Statham, 42 Miss. 607 ; 97 Am. Dee. 478. 2 In the case of Pennsylvania E. Co. v. Kilgore, 32 Penn. St. 292, the plaintiff, who was ill and feeble, had taken passage, with her three children, on defendant's road to G. On arriving at G. , two of the children alighted from the car, and plain- tiff, with the other child, was pi'eparing to alight when the train started. She sprang on the platform notwithstanding, but in so doing fell between the cars and the platform and was seriously injured. The jury having found a verdict in her favor, the court sustained it on the ground that the company was guilty of negligence in starting the train while she was in the act of leaving it and before she had had sufficient time to do so. In Baltimore, &c. R. Co. !). Leapley, 65 Md. 571 ; 27 Am. & Eng. R. Cas. 167, which was a case involving very similar circumstances (woman accompanied by two children, one of which she carried in her arms), the same conclusion was reached, and a recov- ery allowed. Compare Burrows v. Erie B. Co., 63 N. Y. 556, reversing 3 Th. & C. (N. Y.) 544. See Hutchinson on Carriers (2d ed. ), § 644. 3 McDonald v. Chicago, &c. R. Co., 26 Iowa, 124; 95 Am. -Dec. 114. In the case of Peniston v. Chicago, &c. R. Co., 34 La. An. 777, it was held that railway companies carrying passengers over long jburneys are, bound to provide easy modes and to allow a reasonable time to their passengers to obtain food and necessary refreshments ; to furnish safe and proper means of ingress and egress to and from trains to the eating-stations, whether said eating-houses be under the control of the railroad or a third person ; to provide sufficient lights for the safety of their passengers going to or coming from meals had at night, and give them correct infor- mation as to the exact location of their respective trains, when trains have been moved during the absence of the passen- gers at their meals ; and that passengers receiving injuries for want of sufficient light and coiTect information of the where- about of their train on returning from the eating-station are entitled to recover damages against the company. The court said : " It is well established in juris- prudence that railway companies are under the legal obligation to furnish safe and proper means of ingress and egress to and from trains, platforms, station-approaches, etc., and it is well settled that any person injured, without fault on his part, by any dereliction of its duty in the premises by a railway company, can recover damages against the corporation for injuries thus received. Cooley on Torts, 605, 606, 642 ; Add. on Torts, § 245 ; Shearm. & Red. on Neg., 327, § 275. This principle has been applied in a case where a pas- senger, an old lady, was put out at her destination at a station where there was no light to guide her .steps, and no em- ploye of the company to show her the way out of the station-grounds, and wa.s injured in trying to go from the station to a friend's house, by falling from the plat- form. Patten v. Chicago, &c. R. Co., 32 Wis. 528. Under the same rule a railway company was held responsible for injuries received by a passenger in walking from one of its trains to a transfer-boat by fall- 1310 RAILWAYS AS CARRIEES OF PASSENGERS. [CHAP. XVII. at an intermediate station for the purposes of the railroad alone, and not for the refreshment of the passenger, are not so extended.^ ing on a wharf ou which there was not suf- ficient light. Beard v. Fassum^ic, &e. R. Co., 48 Vt. 101. In the enforcement of the same rule a railway company was mulcted in damages in a case where a lady passenger, alighting from her train at her destination, and finding no safe and convenient platform leading to the high- way, attempted to walk across thrise of the railroad tracks, and falling in a ' cattle- guard ' filled with snow, was run over and killed hy another' train of said company. Tlie obligation of furnishing, by railway companitis, safe and easy ingress and egress to and from their platforms has been extended so as to embrace cases of persons who were not passengers on their loads, but who came on business to their stations, and were injured ty means of insufficient or defective platforms, — such as a hack man who had transported passen- gers to a railroad depot. To bin v. Port- land, &c. R. Co., 59 Me. 183 ; 8 Am. Rep. 415; Jamison v. Railroad Co., 56 Cal. 593; Low V. Conn., &c. R. Co., 72 Me. 313 ; 39 Am. Rep. 331 ; Com. v. Boston, &c. R. Co., 129 Mass. 500 ; 37 Am. Rep. 382 ; Stewart v. International, &c. R. Co., 53 Tex. 289 ; 37 Am. Rep. 753. In a recent Michigan case, Cartwright v. Chicago, &c. R. Co., 52 Mich. 606 ; 16 Am. & Eng. R. Cas. 321, the plaintiff, a woman sixty years of age, was travelling on the defendant's road. The night was dark and cloudy. On arriving at her destination she and her hus- band who was with her got out at the rear end of the ear. There was a crossing there, and she was familiar with the locality. Instead of being over the level road as she expected, the end of the car was over a depression at the side. of the road, and when her foot left the step she went down so far that her hold of the iron was broken and she fell to the ground. During all this time, no one connected with the train or employed by th6 defendant was giving her assistance or looking after passengers at the rear end of the car. It was held that under such circumstances it cannot be said that it is negligence per se for a passenger to leave the car at the rear. If there was negligence in this case it must arise from the fact of the darkness, the known fact that the rear of the car was not at the landing, and the uncertainty in respect to the ground where it stood. If the front end of the oar had been at the platform, there would have, been more reason for insisting that the plaintiti' should have gone in that direction. But we think a woman is excusable for not desiring to pass through the smoking-car, and she has a right to assume it is not expected of her. _We als6 think that pas- sengers, where not notified to the contrary, may rightfully assume that it is safe to alight from the car wherever it is stopped for passengers to leave it. Ai\d if no light is given them to leave the car by, they are not to be charged with fault for leaving in the darkness. If a car in which there were passengers was not standing where it would be safe for them to alight without assistance, it was the duty of the company to provide assistance, or give warning, or to move the car to a more, suitable place. I'his was decided in Cockle V. London, &c. Ey. Co., L. R. 7 G: P. 321, a case on its facts very similar to thisj and the same principle has often been laid down in other cases. Nicholson v. Lan- cashire, &R. Ry. Co., 3 H. & C. 534 ; Foy V. London, &c. Ry. Co., 18 C. B. N. s. 225 ; Brassell v. N. Y. Central R. Co., 84 N. Y. 241 ; Penn. R. Co. v. White, 88 Penn. St. 327 ; and Baltimore, &c. E. Co. t>. State, 60 Md. 449 ; 12 Am. & Eng. R. Cas. 149, are among those so holding. There was therefore evidence to go to the jury on the question of negligence in the defendant. And the peculiarity of the case is such .that the same facts which tend to show ii"gligenee in the railroad company tend in the same degree to show that the plaintiff was without fault. If she had a right to assume that the landing-place was safe, she was not negligent in stepping down as she did. It must be conceded tllat she did not exhibit a very high degree of caution, but we cannot say that it was not as much as the average passenger would have shown under like circumstances." 1 Frost V. Grand Trunk R. Co., 10 Allen (Mass.), 387. SEC. 805.] DUTY AS TO STOPPING OF TRAINS, ETC. 1311 Therefore, if a train is stopped at night, merely for the purpose of allowing a train which is expected from the opposite direction to pass by, and no notice is given by the employes of the company to passengers that they may leave the cars, one who leaves them and walks into an open cattle-guard and receives a personal injury can- not recover against the company therefor; and it is immaterial that he was misinformed by some person not in the employment of the company that he nmst go' and see to having his baggage passed at a custom-house, supposed to have been reached by the train, or that the train was near a passenger-station, which was not the place of his destination.! This must admit of some modification in peculiar cases. Thus, in a recent case before the Supreme Court of Illinois, it appeared that a passenger on a steamboat on its stopping at a point on the river for some hours, in attempting to go on shore on the staging leading from the boat to the landing, was struck by the handle of a loaded box of coal in the hands of tlie company's ser- vants and severely injured. Before attempting to pass over the staging he stopped to see whether it was safe to do so ; the boat- hands were going off and coming on Ihe boat bringing coal .on board in boxes, those having loaded boxes coming in on the for- ward staging, and those going off with empty boxes on the after staging which was placed close by the side of the other. Perceiving no danger, passenger started to go on shore by the after staging, fol- lowing closely after the servants going out with empty boxes ; other servants in coming on by the forward staging with a loaded bo.x, just before passing him, crossed over to the after staging and running against him inflicted the injury. The court held that he could recover ; that the company had no right to require that passengers to a distant point should not go on shore at intermediate stations where a lengthened stop is made, except on their assuming all risk of being run down by its servants.''^ There seems to be no reason why the principle set up by this case should be applied as well to cases where a passenger is injured by the carrier's servants while in the ,act of alighting from the train at an intermediate station. From the 1 Frost V. Grand Trunk, &o. R. Co., the platform thereof, and attempted to step 10 Allen (Mass.), 387 ; 87 Am. Deo. 668. or jump from the car while it was in mo- ^ Keokuk Packet Go. r. True, 88 111.608. tion, cannot recover for injuries suffered in .See also State v. Grand Trunk R. Co., 58 consequence thereof, even though he had Me. 176 ; 4 Am. Eep. 258. In a ca.se in reached his place of destination, and the Pennsylvania it was held that one who train, which had previously stopped to passed out of a railway-car, and got upon permit passengers to . alight, had not so 1312 BAILWAVS AS CARBIBES OP PASSENGERS. [CIIAP. XVIP. decisions it is apparent that passengers are allowed considerable latitude in travelling by railroad ; that the responsibility of railroad companies is made commensurate with the general duties which they owe the passengers, such as safe, convenient, and comfortably modes of ingress and egress from trains, platforms, station-approaches and passenger-rooms ; and that the application of the rules of law, both in this country and in England, has been thus far characterized with a due regard both for the rights of the railways and the public. In an action against a railroad company, for injuries, resulting from attempting to leave the train when in motion, an important element in the case is, whether the train was in fact stopped a sufficient time reasonably to enable the passengers to get off. If so, it cannot be said to have been guilty of negligence in the man- agement of its train, and no recovery can be had.^ In the case last stopped for a reasonable length of time. Penn. R. R. Co. v. Aspell, 23 Penn. St. 147. In Gavett v. Manchester, &o. R. R. Co., 16 Gray (Mass.), 601, it was held that "a passenger in a railroad-car who, knowing that the train ' is in motion, goes out of the car and steps upon the • jflatform of the station while the train is still in motion, is so wanting in ordi- nary care as not to be entitled to maintain an action against the railroad corporation for an injury therefrom." Hickey v. Mid- dlesex R. R. Co., 14 Allen (Mass.), 429. Nichols V. Railroad Co., 106 Mass. 463 ; Harvey v. Eastern R. B. Co., 116 id. 269; lUinoU Central R. R, Co. v. Able, 59 111. 131 ; Ohio & M. R. R. Co. v. Schiebe, 44 id. 460 ; Burrows v. Erie R. R. Co., 63 N. Y. 556 ; Morrison v. Erie R. R. Co., 56 id. 302 ; Canada R. R. Co. v. Randolph, 53 111. 510 ; Illinois C. R. R. Co. v. Slatton, 54 id. 133 ; Ohio & M. B. R. Co. v. Strat- ton, 78 id. 88 ; Chicago & N. W. R. R. Co. V. Seates, 98 id. 586. In Secor v. Toledo, &c. R. R. Co., 10 Fed. Rep. 15, a passenger, on a train that had approached a station and was, still moving slowly, stood on the lower step of a car, in the act of stepping to the platform of the station, when, in ^consequence of the cfir being moved forward with a jerk he was thrown npon the platform and injured ; and Drummond, C. J. held that he was guilty of contributory negligence in attempting to alight from the train while it was in motion. Bon v. Railway Co., 10 N. W. Bep. (Iowa) 225 ; Lake Shore & M. S. R. R. Co. w. Bangs, 47 Mich. 470, 11 N. W. Rep.- 276; Jewell v. Chicago, &c. R. R. Co., 54 Wis. 610. 1 Davis V. Chicago, &o. R. B. Co., 18 Wis. 175. In Com, v. Boston & Maine R. B. Co., 129 Mass. 500, an action was brought to recover a statute penalty for killing one H., who claimed to be a pas- senger upon defendant's railroad. It ap- peared that the deceased, who was travelling on the defendant's train, left it while it was in motion, slowly passing a station where he intended to alight, and was struck by a train passing on another track and killed. It was held that tlie deceased was not a passenger after he had left the moving train, and was not entitled to protection by the defendant as such. The court said : " It is trn* that one who has bought a ticket of a railroad corpora- tion is ordinarily a passenger of the cor- poratiop from the time when he reasonably and properly starts from the ticket-office or waiting-room in the station to take his seat in a car of the- train until he has reached the station to which he is entitled to be carried, and has had an opportunity by safe and convenient means to leave the train and roadway of the corporation at Sec. 305.J duty as to stopping of trains, etc. 1313 cited the court held that the defendant was entitled to an instruc- tion that " if the train had stopped a sufficient time to enable the plaintiff to leave it safely, and had then again started on its course, and passed the platform, and the plaintiff then left the platform of the car while the train was in motion, rather than be carried by, he was guilty of carelessness and could not recover for the injuries sustained by him ; " also, that " if the defendant stopped its train a sufficient time to allow the plaintiff to leave it safely, it was not guilty of negligence." The train must be stopped a sufficient time reasonably to enable all persons desiring to stop at the station to do so,- and the question as to whether it did so in a given case is one of fact for the jury.^ that station.- Warren v. Fitchburg R. R., Co., 8 Allen (Mass.), 227. The duty of the corporation toward him is to furnish a well-constructed and safe road, suitable engine and cars, competent and careful engine-men, conductors, and other neces- sary laborers, iu order that all injuries which human foresight can guard against may be prevented. But this duty rests on the corporation only so long as the passenger sees fit to be carried by it ; and if he chooses to abandon his journey at any point before reaching the plac6 to which he is entitled to be carried, the cor- poration ceases to be under any obligation to provide him with the means of travel- ling further. And while it is- true that if he leaves the train while it is at rest at a station, he is entitled to an opportunity so to do in safety7 it is equally true that the corporation is not under any obliga- tion to make it safe for him to leave the train while'it is in motion, and that if he does so he assumes all risk of injury. Gavett V. Manchestei' & Lawrence R. K. Co., 16 Gray (Mass.), 501. In the case at bar, so long as the train was in motion, H. could not leave it and still retain his right to protection until he had left the road- way of the corporation. By leaving the- train while in motion he ceased to be a passenger and to have the rights- of a passenger as completely, though the train was moving slowly and was near by the station, as if he had left it while moving at full speed between stations. Hickey v. Boston & Lowell R. R. Co., 14 Allen (Mass,), 4?9. The fact that the car in which H. was had passed the platform of the station to which he was entitled to be carried, did not give him the right to leave the train at the ri-sk of the com- pany." In Harvey v. Eastern R. R. Co., 116 Mass. 269, it was held that the at- tempt to get on a moving train was prima faele contributory negligence. In Illi- nois Cent. R. R. Co. ». Statton, 54 111. 133, id. 109, the train Mopped and re- mained a reasonable time, but the dece- dent waited until it began to move, and was killed in attempting to get off. It was held that there was no gi-ound of re- covery. Where a train stopped at a water-station, and a passenger attempted to get off, but just as he started to do so it was started with a jerk, and he was thrown off and injured, it was held that as he was told by the conductor that the train would stop, he was justified in get- ling off, and that the company was liable for the injury. Wood v. Lake Shore, &c., R. R. Co., 49 Mich. 370. 1 Paulk V. Southwestern R. R. Co., 24 Ga. 356 ; Illinois, &c. R. R. Co. ». Statton, 54- 111. 123 ; Lambeth ■». North Carolina R. R. Co., 66 N. C. 494 ; Evaiis- ville, &c. R. R. Co. v. Duncan, 28 Ind. 441 : Lloyd v. Hannibal, &c. B. E. Co., 53 Mo. 509 ; Pennsylvania R. R. Co. ». Kilgore, 32 Penn. St. 292 ; Fairmount, &c. R. R. Co. M. Statler, 54 id. 375 ; Toledo, &c. R. R. Co. ». Baddsley, 54 III. 19 ; Southern R. R. Co. v. Kendrick, 40 Miss. 374 ; Inhoff v. Chicago, &c. R. R. Co.', 20 Wis. 344. 1314' RAILWAYS AS CAERIEES OF PASSENGERS. [CHAP. XVU. If, under the influence of fright produced by a sudden peril to the train, a passenger jumps from the train, although he might, not have been injured if he had stayed upon the train, yet lie will, not be precluded from recovering for the injury, if, in view of the peril, it was an act of reasonable precaution for the purpose of self-preserva- tion, to leap from the cars.^ The same degree of caution is not expected or required from a person who is suddenly and imex- pectedly placed in a perilous position as would be required where there was time for deliberate action ; and the rule may b^e said to be that a person, who without negligence, is placed in a position of peril, is not responsible for a mistake of judgment in getting out of it.2 the instinct of self-preservation did not suggest the most effectual method of es- cape from the peril. The jury might well find (as they did) that he was not negli- geut merely because there was a better way of escape than that which he chose." 2 Pennsylvanda R. B. Go. ■». Werner, 89 Penn. St. 59. In Mark v. St. Paal, &o. R. Co., 30 Minn. 493; 12 Am. & Eng. R. Cas. 86, GiLFiLLAN, C. J., said : "The action is by plaintiff, as administrator, for causing, through negligence, the death of his intestate, one Hemberg. In April, 1882, Heniberg was employed at the plauing-mtU at the comer of Fifth street and Second avenue northeast in the city of Minnea- polis. At the comer of said avenue and Fourth street was a funiiture-fector^ Along and near the planing-mill and fac- tory, and between them and the avenuev the defendant, for its accommodation, and to receive from and deliver furniture and lumber at the factory, had laid a side t?ack from the main track, the expense of laying which was borne jointly by the de- fendant and the owners of the factory and mill. The planers in the mill stood about twenty feet from this side track. The boards coming out of the planers came within six to ten feet from it. The planed lumber as it was taken from the planers, waa usually piled on the opposite side of the side ti-ack, and between it and the avenue. There appear to have been three planers, and at each a man was employed in receiving the boards as they came from it, carrying tliem across the side track, and piling them on the side opposite the 1 Southwestern B. K. Co. v Paulk, U Ga. 356. In Wilson v. Northern Pacific R. R. Co., 26 Minn. 278, a passenger leaped from a train in rapid motion to avoid a collision,- and it was held to be a (Juestion for the jury whether the passen- ger was guilty of contributory negligence or not, — Biiel v. N. Y, Central R. R. Co., 31 N. Y. 3U; Twomley v. Central Park, &o. R. R. Co., 60 N. Y. 162 ; Iron Moun- tain R. E. Co. V. Mowrey, 36 Ohio St. 318 ; Schultz v. Chicago, &c. R. R. Co., U Wis. 638 ; Gumz v. Chicago, &c. R. R. Co., 52 id. 672, — ,and that where there are two or more lines of action, any one of which may be taken, and a party, with ordinary skill, in the presence of immi- nent danger, is compelled immediately to choose one of them, and does so in good faith, the mere fact that it is afterward ascertained by the result that his choice was not the best means of escape is not sufficient to charge him with negligence. So in Schultz v. Clricago & Northwestern R. E. Co., 44 id. 638, the court said : "It is probably true that had the plaintiff gone upon the east side of the track, or into the open space in the side of the coal- house, he would have escajied injury. But it cannot be held that he was absolutely guilty of negligence because he failed to take one of these methods of escape. He was acting on short notice in the presence of imminent danger. He had no time to calculate chances or to deliberate upon the means of escape. He was compelled to act at once, and it would be most absurd and unjust to hold him negligent because SEC. 305.J DUTY AS TO STOPPING OP TRAINS, ETC. 1315 A railway company has not discharged its duty or relieved itself from liability to its passengers until it has stopped at the end of case for the juiy to determine, both as to the negligence of the defendant and as to negligence on the part of Hemherg. The charge of the court on the suhject of neg- ligence on the part of Hemberg, while in a proper case it might be correct, was in . view of the circumstances incorrect, be- cause it ignores any consideration of the effect which the defendant's negligence (if the jury should find it guilty of negli- gence) may have had on Hemberg's mind, and on his ability to determine at once just what was the safest thing foV him to do, when through such negligence he found the car almost upon htm. We quote only one passage' from the charge, the remainder of it, on the matter of neg- ligence by Hemberg, being of the same general tenor. After referring to the tes- timony of the witness whose testimony we have first mentioned above, it pro- ceeds : ' Now if that were true, if you should find that version to be true, I should charge you as a proposition of law that was negligence on his part ; that it was a careless act for him, no matter what may have been his mental condition, though he may have been frightened, the act itself would have been a careless act. To attempt to run across a railroad-track when there was a car approaching would be carelessness of itself, and it would be con- tributory negligence which would defeat the recovery.' Hemberg was at work re- ceiving boards from the planer (very close to the track on one side), carrying them across the track and piling them very close to it on the other side, and for that purpose crossing the track as often as every second minute during the day. So far as appears he had a right to be so at work. His employers occupied rightfully, it is to be presumed, the land on both sides of the track, on one side for their planing- mill, and ofi the other side for piling their lumber. Others as well as he were at work along-side of and near the' track, crossing and recrossing it atall times during the day. It was the duty of defendant to run its cars with reference to this state of things, and also with reference to the fact that it ran them in at irregular times. If the jury had rtiill. One of these men was Hemberg. The pile to which he was carrying boards at tlie time he was killed was about four feet from the track, and was lengthwise of it. One witness testified that each of these men had to cross the track about every second minute during the day; others appear to have been employed near and on both sides of the track between Fourth and ,Fifth streets. And there also appears to have been more or less lumber piled on each side of and near the track. One witness testified that there was a great deal of noise about the mill ; that the noise 'kills the sound of the cars^' The defendant usually put a car in on this side track by ' kicking ; ' that ig, by giving it an imfietus with an engine, and then un- coupling and letting the car run in with the impetus thus given it. Cars were sent in that way four or five times a day,, but it does not appear that it was done at any stated times ; whenever the factory or mill was to receive or deliver a load, a car was sent in. On the occasion of Hemberg's death a car was ' kicked ' in, and he being on the track it stnick and killed him. There was evidence from which the jury might find that this car was sent in at an unusual rate of speed, — as high as nine miles an hour. It had no means of giv- ing a signal of its approach, except by the calling out of the brakeman upon it. He did call out as the car approached the place where Hemberg was at work, and other persons also appear to have called out, and it may fairly be concluded from the evidence that Hemberg h*ard the shouting, and saw the car when it was very near to him. As to his action after he .saw it, there is some disagreement in the evidence. One witness testified that he had started to cross the track, carrying a board, and as he was about to .step on the track he saw the ear, dropped the board, and started across in front of the ear and it struck him. According to another wit- ness he had carried the board across, put one end of it on the pile and attempted to recross, going with his back in the direc- tion of the car.s, and was struck while re- crossing. Upon the evidence it was a 1316 RAILWAYS AS CAREIEBS OP PASSENGERS. [CHAP. XVIL their journey a reasonable time for them to get off the train in safety.i But if the train is stopped a sufficient length of time to enable a passenger to conveniently alight, and, without any fault of the company's servants^ he fails to do so, and the conductor, not knowing, and having no reason to suspect, that he was in the act of alighting, caused the train to start while he was so alighting, then the company would not he liable.^ If a passenger is negligently carried beyond his stopping-place, he can recover for the incon- venience, loss of time and expense of travelling back ; but if he Jumps or leaves the train undm" circumstances which render the act imprudent, he does it at his own risk, and assumes the consequences of his act? And it is negligence for a passenger to leap from a moving train for the mere purpose of getting off at a station where the train should stop but does not do so, even though he takes that course to save others from distress on account of his absence.* But where a railway company fails to bring its train to a full stop at a station it will be liable in damages for injuries sustained by a found, as they might from the evidence, as they might have been, that the car was that throngh the defendant's negligence, run in negligently, that it was not negli- the unexpected sudden and rapid approach gence in Hemberg not to see the car till it of the car placed Hejnberg, without his was close upon him, and if he then ran fault, in a position of apparent peril, re- upon the track, his doing so was through quiring instant action to escape, and that terror and loss of self-possession caused by the peril and shouting by the brakeman defendant's negligence, his doing so was and others frightened and bewildered him, not his negligence." '' so that for the moment he was iucapa- i Jetfersonville, &c. R. B. Co. v. Par- ble of deliberating and choosing the safest make, 51 Ind. 42 ; Keller v, Sioux City course to pursue, the defendant cannot al- & St. Paul B. B. Co., 27 Minn. 178. lege it as negligence in law on his part, so ^ Straus v. Kansas City, St. Jo., &c. as to prevent his recovery, that he adopted B. K. Co., 75 Mo. 185. an unsafe course, if it were a natural re- « gelly v. Hairaibal, & St. Joseph suit of the fright and bewilderment so B. B. Co., 70 Mo. 604 ; Straus v. Kaa- causedby the defendant's negligence, such- sas City, &c. R. B. Co., 75 Mo. 185; as might occut to one acting with ordi- Nelson v. Atlantic & Pacific B. B. Co.-, narypradencB. To allow the defendant to 68 Mo. 593; Houston, ic. R. R. Co. _ do so would be like permitting one to take v. ' Leslie, 57 Tex. 83 ; Southwestern " advantage of his own wrong. Galena & B. E. Co. v. Singleton, 67 Ga. 306 ; C. U. R. R. -Co. V. Yarwood, 17 III. 509 ; Burrows u. Erie B. B.- Co., 63 N. Y. Indianapolis, &c. B. E. Co. v. Carr, 35 556 ; Jewell v. CSiicago, St. Paul, &c. Ind. 510 ; Bueli). New York C. E. B. Co., E. B. Co., 54 Wis. 610 ; Lake Shore & 81 N. Y. 314 ; Coulter «. Amer. Merch. M. S. B. E. Co. v. Bangs, 47 Mich. 470 ; Exp. Co., 5 Lans. 67 ; Johnson v. West- Illinois Central E. E. Co. v. Chambers, 71 Chester, &c. B. E. Co., 70 Peun. St. 357 ; 111. 519 ; Illinois Central R. E. Co. v- Iron Mountain B. B. Co. v. Mowrey, 36 Lntz, 84 111. 598 ; Dougherty v. Chicago, Ohio St. 418 ; Wilson v. Northern Pacific &c. E. R. Co., 86 111. 467. , B. E. Co., 26 Minn. 278 ; Mobile, &c. * Lake Shore & Michigan Southern E. B. Co. ■». Ashcroft, 48 Ala. 15. If the E. E. Co. v. Bangs, 47 Mich. 470. jury had been satisfied from the evidence, SEC. 305.] DUTY AS TO STOPPING OF TRAINS, ETC. 1317 passenger in attempting to get off, if, under all the circumstances, it was not imprudent for him to make the attempt.^ lu a Georgia case, it was held that if a conductor, or agent, in charge of a train, improperly ordered one who entered it to leave it while in motion, and in complying with this order he was injured, although the party may have been negligent in obeying the order,- it would not free the company from liability ; but that if one leaps from a train of cars moving at the rate of fifteen miles an hour, on the advice and concurrence of the conductor, his right to recover involves the question whether he prudently used the only means provided by the company for him to get off the train, and also whether his recklessness and want of ordinary care contributed to the injury ; for if by the use of ordinary care he could have avoided the injury, the company would not be liable.^ It is the duty of a railway company when passengers are getting out of the cars, after an announcement by the conductor that ten minutes would be given for refreshments, to permit the cars to stand still.* It may be stated, from the cases previously cited, that in all cases involving the question of liability to passengers for injuries received in leaving a train while it is in motion, the question to be regarded is, whether the person injured, as an ordinarily prudent man, was justified in making the attempt ; and in determining this question regard is to be had to the circumstances, — the speed at which the train was moving, the reason which induced the attempt, whether 1 Price V. St. Louis, &c. R. R. Co., 72 of a mile before reaching the station, Mo. 414. Thus, in au action for an in- where most of the Tecumseh passengers jury of a passenger in alighting from a left the cars. The train then started on freight train, the company's employes and passed the station without stopping were held negligent in backing the train and without notice to passengers. The without giving the passenger time to alight plaintiff, supposing it would stop at the from the caboose ; but the contributory station, went out on the platform of the negligence of the passenger in jumping off oar, and seeing that the train was not the train while in motion was held to de- going to stop, jumped off on the opposite feat the action. Eibhmond & Danville side from tKe depot, and in so doing was B. R. Co. V. Morris, 31 Gratt. (Va. ) 200. thrown under the train and seriously in - The Lake Shore and Michigan Southern jured. It was held that the plaintifTs Railroad Company ran a special train from conduct was. beyond all question negli- Clinton to Adrian and return, and the gent, and that the jury should have been plaintiff below, who resided at Tecumseh, so instructed. Lake Shore & Michigan an intermediate station, bought a ticket Southern E. R. Co. v. Bangs, 47 Mich, from the latter place to Adrian and return. 470. On the return trip the train reached 2 Southwestern K. E, Co. v. Singleton, Tecumseh between eleven and twelve 67 Ga. 806. o'clock at night, and stopped at the cross- ' Sauter v. New York Central & Hud- ingiof the principal street, about a quarter son River B. R. Co., 6 Hun (N. Y.), 446. 1318 RAILWAYS A8 CARRIERS OP PASSENGERS. [CHAP, XVH. the passeugSt was invited or advised by the employes of the com- pany to do so, and all the facts and circumstances immediately connected wil^h the act and the injury ; and, unless the facta are such as to show that the passenger was guilty of negligence fev se, it is a question for the jury whether he was guilty of such contribu- 'tory negligence as relieves the company from liability for the injury. But, when the act of the plaintiff is such as to amount to negligence per se, the court will nonsuit the plaintiff or direct a verdict for the defendant.^ Sec. .306. invitation to alight. — A distinction prevails in some of t(he cases where the passenger is acting under the instructions of the company's- employes. Thus, in an Illinois case,^ the plaintiff pur- the car, sat down in a manner that exposed him to danger, but he did not know that it was dangerous. It was held that it was for the jury to say whether plaintiff was negligent. In Giles v. Railroad Co., i9 N. Y. 47,. the plaintiff was injured by getting off a car when it was in motion. It was proved in the case that when the train arrived at the place where the plain- tiff desired to get off, the train ran very slowly but did not come to a full stop, and that the brakeman told the plaintiff to get off, and in attempting to do so she was in- jured. The court said ; " That there was more hazard in leaving the car while in motion, although moving ever so slowly, than when it is at rest, is self-evident ; but whether it is imprudent and careless to make the attempt depends upon cirqum- stances ; " and held that under all the cir- cumstances it was proper to submit the question of ,contributory negligence to the jury. The case came before the court again in 69 N. Y. 361, and it was then held by the court that if the brakeman directed her to get off while the cars were in motion, she had the right to assume that she could get off with safety, although the train was in motion. Grover, J., who delivered the opinion in 69 N. Y., says : " The employfe upon a train, including brakemen, are in the line of their duty in assisting passengers in getting on and off the train, and in directing them in proonr- ing seats. • Passengers rightly> assume that these persons are familiar with all the movements of the train, and know whether they can under the particular cireum- 1 Central R. R. Co. v. Letcher, 69 Ak. 106 ; Memphis, &c. E. R. Co. v. Houston, 93 IT. S. 297 ; Memphis, &c. R. R. Co. v. Copeland, 61 Ala. 376. In Treat v. Bos- ton & Lowell R. R. Co., 131 Mass. 371, a passenger on the train approaching the station to which he was going, which was a flag-station and' at which the conductor had promised to stop, left his seat and tried to make his way to the car-door, in order to leave the train at that station. It was a day of great public excitement, and the train which was a very long one, was crowded with people who filled all the seats, passage-ways, pl;itforms, and evijn the roofs of the cars. The train did not come to a full stop on reaching the station, and the passenger in making his way through the crowd, reached the platform and, in the surging of the crowd, fell, or was pushed out on the platform and down the steps of the car ; and after holding on with one hand for a short distance, he finally fell to the ground and was injured. It was held that it was a question for the jury whether the plaintiff acted with due care, and whether the defendant negligently and improperly managed its train so that the plaintiffs injury was caused thereby. '^ Chicago & Alton R. R. Co. ■». Ran- dolph, 58 111. 610 ; 5 Am. Rep. 60. In Poole V. Chicago, &c. R. R. Co., 56 Wis. 227, the plaintiff, who was employed by the defendant railroad company as a de- tective, was directed to go to a point on the defendant's railroad, and a hand-car was provided to carry him. He, under the direction of the person who had charge of SEO. 306.] INVITATION TO AUGHT. 1319 chased a ticket for a passage on a freight train. The train not stop- ping at his station' he jumped on while it was moving slowly, and was injured. There was conflicting evidence whether the conductor suggested to him to jump. It was held that it was a question for the jury whether the plaintiff acted prudently.- In a North Carolina case,^ a passenger was killed in attempting to leave a train moving from two to four miles an hoiir. The conductor went out on the platform to help him alight. It was held that if without direction from the conductor he voluntarily incurred danger by jumping off, there could be no recovery ; but otherwise, if the motion was so slow that the danger was not apparent to a reasonably prudent person, and the decedent acted under the conductor's instructions.^ While it is true that the passenger must measurably use his own judgment as to whether or not it is safe for him to alight from a moving train, yet the question as to whether he is justified in yielding his judgment to the supposed superior knowledge of the company's servants, who from a long practical experience are pre- sumed to be better competent to judge of the safety in doing so, and alighting at their invitation or advice, is one which must largely depend upon the circumstances of each case ; and the controlling ele- ment is the speed at which the train is moving at the time, and the stances, get on or off, or move upon the train in this situation the ear was stopped for with safety. When the conductor or a the plaintiff to get on ; that upon his brakeman directs a passenger to get off the getting on there was no place for him ex- train, although in motion, such passenger cept standing on the step ; that while rid- will naturally assume that he knows that ing in this situation the conductor called it is entirely safe or he would not give the upon him for and received from him his direction." In Mclntyre v. R. R. Co., fare. These facts, if true, authorized the 37 N. Y. 287, it was Ireld that "it is not jury to find that the plaintiff had heen in- negligence in law for a passenger to fol- vited by those having charge of the car to low the direction given by a servant of ride in that place, and that it implied an a railroad company, and to pass from one assurance had been by them given that that car to another while the same are in mo- was a suitable, safe place for him to ride. tion. Whether in such case it is negli- Under such a state of facts I do not think gence is a question for the jury." In negligence can fairly be imputed to the Clark V. Street E. R. Co., 36 N. Y. 135, plaintiff for riding in that position." It the court held that if a passenger is riding was held that the question of the plaintiff's upon a platform of a car in a place of danger, negligence was properly .submitted to the his negligence is prima facie established ; jury. but that he may rebut that presumption * Lambeth i'. North Carolina R. R. Co., by showing that he was riding there at the 66 N. C. 79.4 ; 8 Am. Rep. 508. invitation of those having the car in " Filer v. N. Y,. C. R. R. Co., 49 N. charge. Gkover, J., says: "The proof Y. 47 ; 10 Am. Rep. 327; Georgia R. E. of the plaintiff in the present case tends to Co. v. McCurdy, 45 Ga. 288 ; 2 Am. Rep. show that the inside of the car was full 577. Lake Shore, &c. E. E. Co. v. Bangs and that the platform was full, so that no 47 Mich., 11 N. W. Rep. 276. more persons could stand thereon ; that 1320 RAILWAYS AS CARRIERS OF PASSENGERS. [CHAP.XVIIr physical condition of the passenger. A passenger would not under any circumstances be justified in yielding to such advice wh,en-the train is moving at a high rate of speed ; nor would a person who is lame, or lahoring under any serious physical disability resulting from, age, disease, or other cause, 'be justified in getting off -the train While it is moving at all. In these cases, the passenger must think before he acts, and he is bound to think And act as a person , of ordinary prudence would do under the same circumstances ; so that in all these cases the question is, whether under the circumstances of the case, the passenger was, as a prudent person, justified in acting upon the invitation or advice of the agents of the company, or should have exercised and acted upon his own judgment and remained in the car.^ A passenger is not justified in doing that which is obviously dangerous, although invited to do so by the company's servants or agents. Thus it will be seen that, it is impossible to formulate any general rule that will furnish an absolute test of liability in a given case; but that in all cases the question is whether the passenger was himself guilty of negligence in acting upon the advice of the com^ pany's agents.^ If the car is in rapid motion, or other circumstances! exist which indicate that it is dangerous to alight,- neither the advice nor direction of the conductor will justify the act.* .In determining 1 Bucher v. New York Central R. Co., held that the question of negligence was 98 N. Y. 128 ; 21 Am. & Eng. R. Cas. for the jury. 361 ! South '& North Ala. R. Co. k. » Gnion v. N. Y, & Harlem R. Co., 8 Schaufler, 75 Ala. 136 ; 21 Am. & Eng. Eobt. (N. Y.) 25; Penn. R. Co. v. Aspell, R. Cas. 405 ; Vimont v. Chicago, &c. R. 23 Penn. St. 147. The fact that the paa- bo.j 64 Iowa, 513 ; 28 Am. & Eng. R. Cas. senger is being carried by the station, and 210 ; McGee v. Missouri Pacitio R. Co., that it is very important that he should 92 Mo. 208 ; 31 Am. & Eng. R. Cas. 1 ; stop there will afford no excuse for an im- , Edgar v. Northern R. Co., 11 Ont. App. prudent act. Mettlestadt v. Ninth Ave, 452 ; 22 Am. & Eng, R. Cas. 433 ; Dela- R. Co., 4 Robt. (N. Y.) 377 j Jefferson- ware, &c. R. Co. V. Webster (Penn.), 6 ville R. Co. v. Hendricks, 26 Ind. 228. Atl Rep. 841 ; 27 Am. & Eng. R. Cas. If the statute reqnire.s the company to 860 ; St. Louis, &c. R. Co. v. Fer^n, 49 stop at a station a certain time, as five Ark. 182; 30 Am. & Eng. R. Cas. 567 ; minutes, its faihire to comiily with the McCaslin ii. Lake Shore, &a. R. Co., 93 ; statute is not per se such an act as will Mich. 55 ; 52 Am. & Eng. R. Cas. 290 ; render the company liable, irrespective of Fulks V. St. Louis, &c. R. Co., Ill Mo. the contributory negligence of the pas- 335 ; 52 Am. & Eng. R. Cas. 280. senger. Houston, &c. R. Co. v. Leslie, * In Southwestern R. Qo. v. Singleton, 57 Tex. 88 ; Galveston, &c. R. Co. v. La 66 Ga. 252, the plaintiff got .upon n car Gierse, 61 Tex. 189. Because the corn- attached to a pay-train upon which pas- pany has failed to discharge its duty the sengers were not permitted to ride, and passenger is not absolved from his duty to he was so informed by the conductor, an4 act with due care and prudence. Mem- upon his advice leaped from the train phis, &c. R. Co. v. Houdton, 95 U. S. while it was running at the rate of fifteen 697. Brickell, J., in Central R. Co. o. miles an hour, and was injured. It was Letcher, 69 Ala. 106. SBC. 306.] INVITATION TO ALIGHT. 1321 the question, the weight which a person acting rapidly would be justified in giving to the advice or opinion of an experien'ced person, is an important factor, but as before intimated is by no means deci- sive. In a Missouri case,^ the train stopped at a station only a minute ; during that time the plaintiff's little child alighted ; the plaintiff followed without delay, but after the train was in motion, and received her injuries in consequence of jumping from the train. It was held that the plaintiff would not be barred of a recovery by the fact that she jumped from the train while in motion.^ In a Texas case,^ the court charged the jury that starting the train on the instant of the signal was negligent, and that while attempting to board a train moving rapidly would be negligent, such an attempt, if the train were moving slowly, would not be negligent. But the appellate court reversed this ruling upon the ground that the question was one of fact, in view of all the circumstances, and that the court could not, as a matter of law, say whether the act was negligent or not.* 1 Lloyd V. St. Joseph, &c. R. Co., 53 Mo. 509. " Pennsylvania E. Co. v. Kilgore, 32 Penn. St. 292. 8 Texas & Pacific E. Co. v. Murphy, 46 Tex. 356 ; 26 Am. Bep. 272. * Johnson v. Westchester R. Co., 70 Penn. St. 357. In a recent case in Ala- baTna, as the train was approaching a sta- tion the name of the station was called and the train soon afterwards stopped, because about to cross the track of another railroad. When it stopped, the plaintiff, whose destination was the station called, went out of the rear door of the oar, and though the train was hy this time again in motion, jumped from the car and was injured in the fall. It was at night, and there were no lights, no depot building, or other landmark to indicate that a station had been reached ; moreover, plaintiff was familiar with the locality and knew of the crossing. It was held that he had no right to recover. East Tennessee, &c. .R. Co. M. Holmes (Ala.), 12 So. Rep. 286. See also Louisville, &c. R. Co. v. Lee (Ala.), 12 So. Rep. 48 ; Gadsden, &c. R. Co. V. Causler (Ala.), 12 So. Rep. 439. In Richmond, &c. R. Co. v. Morris, 31 Gratt. (Va.) 200, M. took passage in the caboose of a freight train on a railroad from W. to B. , a way station. It was night when VOL. II — 33 the train arrived at B. M. had fallen asleep, and when approaching B., the conductor awakened him, telling him they were at B. The train went a short dis- tance beyond the station-house without stopping, and when it stopped, the conduc- tor, seeing M. still in the caboose asleep, again aroused him. The train stopped about a minute, and M. could then have gotten off whilst the train was not in mo- tion. The conductor then went to the other end of the car, and looking back saw that M. did not get up. He returned, shook M. and told him to get up, or get off, he was at B. Immediately after the waking of M. the last time, the conductor went out at the end of the caboose with his lan- tern in his hand on to a stationary plat- form about two and a half feet from the platform of the car and stood there ; the train commenced backing, tiud M. got up and walked out to the end of the car and jumped off, not knowing which way the car was going ; and the caboose car and several others passed over him, injuring him severely. The point where M. jumped off was opposite the stationary platform, which extended quite a distance along-side the train, and was in good condition. There was no chain across the end of the platform in rear of the caboose, and it was not customary to have them on such cars. 1322 RAILWAYS AS CAKBIBR8 OF PASSENGEES. [CHAP. XVIL Sec. 307, injuries received in getting upon a Train. — The same duty and the same rule of liability exist on the part of a railroad company, in reference to stopping its trains sufficiently long to enable passengers to get on to it as exist in relation to stopping it for passengers to get off. Generally, it may be said, a person attempt- ing to get aboard a train while it is in motion is guilty of such con- tributory negligence as will bar a recovery for an injury received while attempting to do so.^ And the fact that pressing business It was a dark, drizzly night, and the only lights at the station were two lanterns, one in the hands of the conductor and the other in the hands of a servant of the company at the station. The train reached the station behind time. It was held that the company was guilty of culpable negligence, and tbU negligence was the proximate cause of M.'s injury. The court said : " The conduc- tor should not have put the train in motion until M. could leave the car ; or if put in motion, he should have cautioned him not to attempt to get off until the train was stopped. Instead of this he told him to get off, and the train immediately com- menced backing. The company was also in fault in not having stationary lights at the place, and this made it all the more in- cumbent on the conductor to exercise more than usnal care and caution in letting off passengers. But whilst the injury sus- tained by M. was directly traceable to the Milpable negligence of the company, the negligence or absence of ordinary prudence and caution on the part of M. contributed to his injury; and ha is not entitled to recover of the company damages for the injury he sustained. One who by his neg- ligence has brought an injury npon him- self, cannot recover damages for it. Such is the rule of the civil and common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been gnilty of negligence also in the same con- nection, the result depends on the facts. The ijuestion in such cases is ; 1. Whether damage was occasioned entirely by the negligence or improper conduct of the de- fendant ; or, 2. Whether the plaintiff him- self so far contributed to the misfortune by his own negligence or want of ordinary care and cantion, that but for such negli- gence or want of ordinary care and cau- tion on his part the misfortune would not have happened. ' In the former case the plaintiff is entitled to recover. In the lat- ter he is not." Railroad Co. v. Jones, 95 U. S. 439 ; Butterfield v. Forrester, 11 East, 60 ; Bridget Grand June. E. Co., 3 M. & W. 244; Pennsylvania R. Co. v. Aspgll, 23 Penn.St. 147; Baltimore, &e. R. Co. v. SheN man, 30 Gratt. (Va.) 602 ; Baltimore, &o. E. Co. V. Whittington, 30 Gratt. (Va. ) 805. ' Hubener v. New Orleans, &c. E. Co., 23 La. An. 492 ; Carroll v. Interstate Eapid Transit Co., 107 Mo. 653; 52 Am. & Eng. R. Cas. 273 ; Keating v. N. T. Central R. Co., 3 Lans. (N. Y.) 469 ; Knight V. Pontchartrain R. Co., 23 La. An. 462. Chicago, &c. R. Co. v. Scates, 90 111. 586; Phillips v. Eensselaer, &e, E. Co., 49 N. Y. 177 ; Wabash, &c.Jl. Co. i>. Eector, 104 111. 296 ; 9 Am. & Eng. E. Cas. 264 ; Solomon v. Manhattan R. Co., 103 N. Y. 437; 27 Am. & Eng. R. Cas. 155. In this last case it is said that if there is any difference the act of at- tempting to board a moving train is less excusable than that of leaving one. In Chicago, &c. R. Co. v. Eandolph, 53 111. 513, 5 Am. Rep. 60, the plaintiff pur- chased a ticket for passage on a freight train. The train not stopping at the sta- tion, he. jumped on while it was moving slowly and was injured. It was held a question for the jury whether he acted prudently. In Texas, &c. E. Co. v. Mur- phy, 46 Tex. 856, 26 Am.Kep. 272, the court charged that starting the train on the instant of the signal was negligent, and that while attempting to board a train moving rapidly would be negligent, such an attempt, if the train were moving slowly, would not be negligent. It was held error, and that this was a question of fact. See also Johnson v, Westchester R. Co., SBC. 307.] INJURIES EECEIVED IN GETTING UPON A TEAIN. 1323 requires that he should take the train, or any other motive, will not excuse his negligence, or entail the consequences thereof upon the company. If he was in fact guilty of contributory negligence, although the company was also negligent no recovery can be had.^ But while, 70 Penn. St. 357. In Eppendorf v. Brooklyn City, &o. R. Co., 69 N. Y. 195, 25 Am. Rep. 171, the plaintitf signalled a street-car to stop ; the ear was open, with a side step or rail ; the driver applied the brake, and while the car was moving slowly, the plaintiff undertook to hoard it, when the driver started suddenly, and he was injured. It was held a proper case for the jury. The court said : " Ordinarily it is perfectly safe to get upon a street-car moving slowly, and thousands of people do it every day with perfect safety." And so it is not negligence per se to leap from a a street-car in motion, when it has not stopped on request. Wyatt v. Citizens' R. Co,, 55 Mo. 485 ; Crissey v. Heston- ville, &c. R. Co., 75 Penn. St. 83. But compare Nichols v. Sixth Ave. R. Co., 38 N. Y. 131 ; Johnson v. Westchester, &o. R. Co., 70 Penn. St. 357 ; Kelley v. Chicago, &c. R. Co., 50 Wis. 381; McCorkle v. Chicago, &o. E. Co., 61 Iowa, 555. In Harvey v. Eastern R. Co., 116 Mass. 269, it is held prima fade contribntive negli- gence for a pasenger to board a moving train. Spooner v. Brooklyn City R. Co., 31 Barb. (N. Y.) 419 : Deyo v. N. Y. Central R. Co., 34 N. Y. 9. The rule is sometimes stated to be that if the injury was the result of the negligen6e of bdth parties, then, as the passenger's fault con- tributed to it, he cannot recover, unless the managing agents saw his perilous con- dition and might, by ordinary diligence, have prevented the injury. Kentucky Central R. Co. v. Dill, 4 Bush (Ky.), 593 ; Higgins V. Hannibal, &c. R. Co., 36 Mo. 419 ; Southern R. Co. v. Kendricks, 40 Miss. 374; Harper o. Erie R. Co., 3?N. J. L. 188, It is a question of fact whether it was negligent for a passenger to get on a moving train, and, unless under a great motion, it cannot be said to be per se neg- ligent. The rate of speed is the most important factor. Swigert u. Hannibal, &c. R. Co., 75 Mo. 475; 9 Am. & Eng. B. Ca,a. 322. If a passenger by a freight train has ample time tp get on the caboose,, he is not justified in getting into a freight- car. Player v. Burlington, &c. R. Co., 62 Iowa, 723 ; 12 Am. & Eng. R. Cas. 112. The train should come to a stop and re- main at the station long enough for pas- sengers reasonably to get aboard. The fact that they bring their cars up to the station some time before the departure, and mov6 them back and forth in making up their trains, is not necessarily sufficient to establish negligence. Flint, &c. R. Co. v. Stark, 38 Mich. 714. In a New York case, the plaintiff attempted to get upon a train of cars while slowly passing a station where he had bought a ticket. The platform and steps were full, so that he could only get upon the lower step. A jerk of the cars threw him off, but he held on to the iron rod and ran along by the car striving to recover his position upon the step, although the speed of the train was increasing, when he was struck by a platform near the track and injured. It was held that there was such contributory negligence upon his part as justified a non- suit. Phillips V. Rensselaer, &c. R. Co., 49 N*. Y. 177. It is not generally considered that a passenger is necessarily negligent in at- tempting to board a moving street-car. Stager v. Ridge Ave. R. Co., 119 Penn. St. 70 ; 33 Am. ^ Eng. R. Cas. 540.' But even this may be negligence under, some circumstances, as when a lady encum- bered with bundles attempts to board a car before it has stopped. Dietrich v. Baltimore, &c. R. Co., 68 Md. 347; 11 Am, & Eng. R. Cas. 115. ^ It is not enough to rebut the strong presumption of negligence on the part of the passenger in attempting to board a moving train, to show that the trainmen acquiesced in his.action, or that the com- pany violated its duty in not stopping the train at the station. Solomon v. Manhat- tan R. Co., 103 N. Y. 437. 1324 RAILWAYS AS CAEEIEES OF PASSENGERS. [CHAP. XVII. as previously stated, generally an attempt to get aboard a train in motion will be treated as evidence of negligence per se on the part of the passenger, yet instances may exist where it is not so, and the passenger is justified in making the attejnpt ; but in such cases lia- bility arises, if at all, because of the fact that the danger was not obvious ; ^ or because the agents of the company directed the passen- ger to make the attempt.^ Thus, where a passenger attempted to board a night train with a sleeping-car attached, there is no error in refusing to instruct the jury that the plaintiff's attempt to get aboard before the sleeping-car was abreast of the platform, was negligence per se ; it not appearing that the plaintiff knew the length of the train as compared with the platform, or ought to have assumed that it was intended to bring the sleeping-car to that position, — the rule ' being that, where a train stops at a station in such a manner as to induce the belief on the part of the passengers waiting on the plat- form that it had stopped for their receptibn, it is negligence to start the train without a signal when they had commenced to go aboard. Under these circumstances, if it was not intended the passengers should go aboard, it was the duty of the company to have some one there to warn and prevent them.^ So where there was evidence tending to show that the train had come to a full stop, and that the persons waiting to get upon it were told to go on board by the per- sons in chafge of it, and that the plaintiff, in attempting to get on board, was injured in consequence of the sudden starting of the train, it is not error to leave to the jury the question of the negligence of the parties. And the fact that plaintiff was told by the company's servants to get on the hind car, and that he was injured in trying to get on another car, is not such conclusive proof of negligence on his part as to take the case from the jury. But it was held to be erro- neous to instruct the jury that it was negligence in the company in not having an agent present, wearing a badge, whose duty should 1 Curtis V. Detroit, &o. R. Co., 27 road. Upon his arrival at the terminws of Wis. 158 ; Johnson v. Westchester, &c. the first line where he was to take a train R. Co., 70 Penn. St. 367 ; Swigert v. on the other line, the train he was to take Hannibal, &c. R. Co., 75 Mo. 475; 9 Am. was moving off. It was held that he was & Eng. R. Cas. 322. , ' not 'guilty of contributory negligence in '^ Detroit, &o. R. Co. v. Curtis, 23 Wis. attempting to board it while it was moving 152 ; 99 Am. Dec. 141. slowly, and that having fallen in the ' Curtis V. Detroit, &c. R. Co., 27 Wis. attempt and sustained injury he was en- 158. In Johnson v. Railroad Co., 70 titled to recover as the company had vio- Penn. St. 357, the passenger had a ticket lated its duty in moving the train before entitling him to passage over two lines of he had sufficient time to get aboard. SEC. 307.] INJUBIES RECEIVED IN GETTING UPON A TRAIN. 1325 consist in informing the passengers what cars to enter.^ But even where the agents of the company direct the passenger to do so, the com- pany is not liable, if it was negligence on the part of the passenger to make the attempt, in view of all the circumstances ; and whether it was so or not depends upon the fact whether, under the circum- stances, the act was c/bviously dangerous, and is a question for the jury.2 The sale of a railroad ticket before the arrival of a train, or when it is at the station, does not give the purchaser a specific right to take that particular train, so tfiat it must be held long enough for him to go upon it. The ticket gives no right to delay the train, but simply a right to take any train bound to the passenger's destination which stops at that station provided he presents himself in time, and upon the passenger is imposed the duty of presenting himself in time, or waiting for a succeeding train.* Thus, in the case last cited, the plaintiff came to a station on defendant's road late for a train she desired to take. The train was at the station when she purchased her ticket, and she came out upon the platform after the signal to start had been given, and after drop-platforms, which were let down to connect the car and' station platforms, had been raised, and just as the engineer was about to apply the steam, and at a moment when she could not see the conductor, who, with the brakeman, had stepped on the train and was not aware of her presence. All passengers had left the train, and all those in sight desiring to take it had gone aboard when the signal was given. As plaintiff took hold of the rail of a car and attempted to get on to the train it ' Detroit, &c. R. Co. v. Curtis, 23 Wis. regard it as of the slightest ipiportance, 152 ; 99 Am. Dec. 141. under the circumstances of this case, that 2 Phillips V. Rensselaer, &c. R. Co., 49 the conductor notified deceased to jump N. Y, 177 ; Curtis v. Detroit, &c. R. Co., on. That notification certainly cannot be 27 "Wis. 158. In the case of Hunter v, interpreted to mean more than that the Cooperstown, 112 N. Y. 371 ; 37 Am. & train would not stop or go slower than it Eng. R. Cas. 74, a passenger acting was then going, and that if deceased wanted upon the direction of the conductor at- to take it he must jump on at that mo- tempted to board a moving train at a ment. That does not alter the highly dan- station where the train was advertised to gerqus character of the act itself. The stop, hut in maldug the attempt he was 'deceased was in absolute safety at the time thrown to the ground and killed. The the direction was given. It created no train was moving at the rate of at least six emergency which called for the exercise of miles an hour. The court held that not- immediate judgment in the choice between withstanding the deceased had acted under the two dangers. . . . We think the plain- the suggestion or direction of the conduc- tiff should have been non-suited." tor, his conduct amounted to contributory 3 Paulitsch v. IS. Y. Central R. Co., negligence which would bar an action for 102 N. Y. 280. his death. The court said : " We do not 1326 RAILWAYS AS CAEKIBES OF PASSENGERS. [CHAP. XVII. started and sie was thrown down and injured. In an action to re- cover for the injury, defendant requested the court to charge that, "When the people who desired to stop . . . had left the train, and the persons who were there at the station-platform had entered on the train, the defendant had the right to raise the drop-platform and start the train." This the court refused to charge, unless with this qualification, " provided they had given each person having a right to enter upon that train as a passepger the opportunity to get on .board." The Court of Appeals held that this refusal was error, and reversed the case.i It is the duty of a railroad company, through its agents, to give reasonable signals of the departure of its trains from its stations and depots; such signals as would ordinarily attract the attention of passengers and those interested in the movements of the cars of the railroad company. Should a passenger needlessly linger- about a depot or station, and neglect to board a train, then the' company, as to such passenger, is only bound to ordinary diligence ; and it would ,be , the duty of the passenger to use caution in observing signals which might be given by the agents of the company.^ Thus, a passenger who was standing on the platform was going to Savannah to get married, and saw the train moving from the platform, and in his haste in trying to get upon the train, which had moved off, as he claimed, without, signal, he was run into by another engine and severely injured. It was held that his own negligence was a question for the jury.* In giving signals to tardy passengers who have need- lessly neglected to board the train, the purpose is to prevent them from 1 PftulitSch*. N. Y. Central R. Co., 102 contributory to the result. Michigan Ccn- N'.Y.283,«»em»fl'18J. &S. (W.Y.)241. tral E. Co. v. Coleman, 28 Mich. 440; 2 See Illinois Central E. Co. v. Slatton, Harvey v. Eastem E. Co., 116 Mass. 54 111. 133 ; 5 Am. Bep. 109. 269. The fact that the railway company ' Perry v. Central E. Co., 66 GJa. 746. is violating the law in not stopping its A railway company may be liable for train for five minutes at a station will not damages resulting from misleading an- excuse a passenger in attempting to get nouneenients whereby passengers are led upon the train while it is in motion. Gal- to attempt to get upon the wrong train, veston, &c. E. Co. v. Le Gierse, 51 Tex. Flint, &c. E. Co, v. Stark, 38 Mich. 189. If the company has constructed and 714. A plaintiff who arrives at the de- maintained a platform at a convenient pot before the cars, with plenty of time and suitable place, by which passengers to go upon the platform, but who waits can safely and securely enter the cars upon the ground on the opposite side of when the train is placed in position for the track, and when the cars come along the reception of passengers when the cars attempts to get on from that side, and are not in motion, it has fulfilled its duty especially after dark, and is thrown off by to the passenger so far as the platform is the cars starting before she is securely on, concerned. Chicago, &c. R. Co. v. Scales, cannot be said to be free from negligence 90 111. 586. SEC. 308.] ACCOMMODATIONS, ETC. 1327 being left, in copsequence of their own want of promptitude. Ordi- nary diligence as to such signals, according to what is usual on like occasions, in like circumstances, is required on both sides, — on the side of the company in giving them, and on the side of the passen- gers in looking, listening, or observing. What kind of signals will come up to such ordinary diligence, by what means to be made, and with what degree of loudness or distinctness, are questions for the jury, and not for the court.i The fact that the conductor of a train about to leave a station is induced by the conduct and conversation of a person on the station-platform to believe that he does not intend to take passage on the train, will not relieve the company from liability for injuries received by such person in consequence of the train being started without giving him time to get on, if the con- ductor actually sees him attempting to get on when he gives the order .to start.^ Sec. 308. Accommodations : Contributory Negligence. — A rail- road company is bound to furnish its passengers reasonable and proper accommodations for travelling, and if it has an insufficient number of cars, so that passengers are compelled to ride upon the platform, it is liable for injuries received by them while riding there ; ^ but for injuries received while unnecessarily riding there the 1 Central E. & Banking Co. v. Perry, Am. & Eng. R. Cas. 375. The fact that 58 Gra. 461. there are no seats in the cars does not ' Swigert v. Hannibal, &c. E. Co., 75 justify a person in riding on the platform. Mo. 476 ; 9 Am. & Eng. E. Cas. 322. A So long as there is standing-room in the lady passenger in getting on the cars in cars, he must ride there. Chicago, &c. the night stepped off the platform and was R. Co. v. Carroll, S Brad. (111.) 201. But injured. She sued the company, claiming it has been lately held in New York that that the accident was caused by insuffi- the fact that a passenger, failing to find a, ciency of light on the cars. It was held seat, and having none pointed out to him that the accident was not one ordinarily by the company's employes, takes a pejsi- attributable to the neglect of the carrier, tion on the platform of the car where Proof of want of care must be shown, other passengers are riding, without objec- Chicago, &c. E. Co. v. Trotter, 60 Miss, tion from any of the company's agents, 442. and is thrown from the car by a sudden ' Willis 0. Long Island R. Co., 34 lurch given it by the increased speed in N. y. 670 ; Malcolm ». Richmond, &c. going round a curve, does not, as a matter E. Co., 106 N. C. 63 ; 44 Am. & Eng. R. of law, constitute contributory negligence. Cas. 379; Louisville, &c. E. Co. v. Bisch, Long Island R. Co. r. Werle, 98 N. Y. 120 Ind. 549 ; 41 Am. & Eng. E. Cas. 89 ; 650; 21 Am. & Eng. E. Cas. 429. But it Central R., &c. Co. ». Miles, 88 Ala. 256 ; appears to us that the doctrine of the 41 Am. & Eng. E. Cas. 49 ; Werle v. Illinois case is the more ooiTect. A pas- Long Island R. Co., 98 N. Y. 650 ; 21 senger who is not shown a seat may refuse Am. & Eng. E. Cas. 429 ; Jackson v. to surrender his ticket or to pay fare until Railway, 2 C. P. Div. 135 ; Graville v. one is given him, but he has no right to Manhattan E. Co., 105 N. Y. 525 ; 34 put himself in a place of danger so long 1328 RAILWAYS AS CARRIERS OF PASSENGERS. [CHAP. XVn, company is not responsible,^ nor while passing from one car to as there is room in the car. In the New York case above cited, the question is barely considered ; the court merely held that in view of the conflict in the evidence, it was proper to submit the whole question to the jury. If a car is crowded so that a passenger is forced out of his place, the company is liable for an injury sustained by him while in that position. Jackson V. Ry. Co., 2 C. P. Div. 125. ' Hickey e. Boston, &c. R. Co., 14 Allen (Mass.), 429 ; Wills v. Lynn, &c. R. Co., 129 Mass. 351 ; Alabama, &c. R. Co. V. Hawke, 72 Ala. 112; 18 Am. & Eng. E. Cas. 195. In Quinn v. 111. Gent. R. Co., 51 111. 495, the decedent stood upon the steps of the car, holding on by the railing, when the conductor came along col- lecting fare. In making change for a bill which the passenger gave for his fare the wind blew it away, and the passenger in attempting to get it lost his foothold, and falling from the car was killed. The cars were quite full, but there was standing- room in all of them. The court held that there could be no recovery. The rule is that no recovery can be had for an injury received while riding upon the platform, unless it was through a wanton or wilful act. Taylor v. Dan- ville, &c. R. Co., 10 Brad. (111. App.) 311. In Camden, &c. R. Co. v. Hoosey, 99 Penn. St. 434, 6 Am. & Eng. R. Cas. 654, the plaintiff was a passenger upon a train of about twenty over- crowded cars. He went through the train in search of a seat but found all the cars filled, and after standing in the forward car for a few moments, he went out upon the platfonn of the car, and by an ordinary jolt of the car, lost his equilibrium, and fell off the car and was injured. He was the only person upon the train who was in- jured during the trip, although many pas- sengers were standlug up in the cars. " If he had submitted," says the court, "as many others did, to the inconvenience of standing inside the cars, or if he had been guilty of no greater imprudence than in passing from car to car while the train wa.s in rapid motion, it is not at all probable he would have been injured. Hi.s-much-to he-regretted injury was the result of his own carelessness; " and it was held that he could not recover, three out of seven judges dissenting. The case of West Phila. Pass. R. Co. V. Gallagher, 108 Penn. St. 524 ; -27 Am. & Eng. R. Cas. 201, seems to state an exactly contrary doctrine. In Cotchett V. Savannah, &c. R. Co., 84 Ga. 687, it appeared that the passenger left his car to go to another for a drink of water ; he stopped a moment on the plat- form to talk, and while standing there the coupling pin broke so that the cars parted and he sustained severe injuries. It was held error to direct a non-suit in an action by him, as the case was one for the jury. See also Snowden v. Boston, &c. R. Co., 151 Mass. 220 ; Lent ». Ifew York, &c. R. Co., 120 N. Y. 467 ; 44 Am. & Eng. R. Cas. 375. In " each of these cases the passenger was standing on the rear platform waiting for another car to be joined to the train, and immediately on the two being joined attempted to step to the new car. The question was held to be for the jury. But it is held not to be negligence per se for a passenger upon a street-railway car to stand upon the plat- form, — Thirteenth St. R. Co. v. Boudrou, 92 Penn. St. 475; Nolan v. Brooklyn City, &c R. Co., 87 N. Y. 63, — even though there is room in the car. Maguire v. Mid- dlesex R. Co., 115 Mass. 239; Briggs v. Union St. R. Co., 148 Mass. 72 ; 37 Am. & Eng. R. Cas. 204 ; Burns v. Bellefon- taine, 50 Mo. 139. But see Ginna v. Sec- ond Ave. E. Co., 67 N. Y. 596 ; Clark v. Eighth Ave. R. Co., 36 N. Y. 135; 93 Am. Dec. 496 ; Downie v. Hendric, 46 Mich. 598. See also Augusta, &c. R. Co., V. Eenz, 55 Ga. 126 ; Meesel o. Lynn. &c. R. Co., 8 Allen (Mass.), 234; Huel- senkamp v. Citizen's E. E. Co., 37 Mo. 537 ; s. c. 34 Mo. 45. And standing on the front platform, even wheii there is room inside, does not constitute negligence per se, when the -injury is incurred by the fault of the company's servant. Burns V. Bellefontaine R. Co., 50 Mo. 139; Maguire v. Middlesex R. Co., 115 Mass. 239. So where one was compelled to ride on the platfonn of a car by a con- ductor, being ordered to give up his seat inside, the company was held liable for SEC. 308.] ACCOMMODATIONS, ETC. 1329 another unnecessarily.^ The fact that the conductor permits a passenger to ride upon the platform, when there is no necessity for an injuiy incurred by careless driving. Sheridan v. Brooklyn, &c. R. Co., 36 N. Y. 39. So where he was induced to ride there by the invitation of the conduc- tor without pay. Wilton v, Middlesex R. Co., 107 Mass. 108, 9 Am. Eep. 11; contra, Baltimore, &c. R. Co. v. Wilkinson, 30 Md. 224. But standing in an unsafe posi- tion upon the platform of a car after an opportunity is afforded the passenger of exchanging it for a safer one is contribu- tory negligence, — Ward v. Central Park, &c. R. Co., 42 How. Pr. (N. Y.) 289, — though it is not negligence per se to omit to take hold of the railing to prevent being thrown off. Ginna o. Second Avenue, 67 N. Y. 596. It is usually a question of fact for the jury whether those in charge of a car are negligent in allowing a passen- ger to stand upon or get on or off the front platform, and in not sooner stopping the car. Crissey v. Hestonville, &c. E. Co., 75 Penn. St. 83 ; Maher v. Central Packet E. Co., 67 N. Y. 52. And where plain- tiff, a child' of five years, with another of eleven years, got on the front platform of a street-car and the driver allowed them to continue in that position, and in at- tempting against the remonstrance of the driver to get off while the car was in motion the plaintiff was hurt, it was held negligence as matter of law in the driver to allow children so young to ride on the platform, and that the company was lia- ble. Caldwell v. Pittsburgh, &c. R. Co., 74 Penn. St. 421 ; Brennan v. Fair- haven, &c. R. Co., 45 Conn. 284; Phila- delphia, &c. E. Co. V. Hassard, 75 Penn. St. 367 ; East Saginaw R. Co. v. Boker, 27 Mich. 503 ; Wilton v. Middlesex E. Co., 107 Mass. 108, 9 Am. Eep. 11 ; Day V. Brooklyn, &c. R. Co., 12 Hun (N. Y.), 435; Com. v. Boston, &c. E. Co., 129 Mass. 374 ; 37 Am. Rep. 378. In Andrews v. Capital, &c. R. Co., 2 Mackey (D. C), 137 ; 15 Eep. 330, it was held that a passenger who remains on the rear platform of a street-car when there is standing-room within, and means of sup- port, cannot recover for injuries suffered 1 Macon, &c. R. Co. v. Johnson, 38 Ga. 409 ; MoUaniel v. Highland Avenue, &c, E. Co., 90 Ala. 64 ; 44 Am. & Eng. R. Cas. 378, n. It may be said that, except when acting under the suggestion of the conductor, it is per se negligence for a pas- senger to pass from one car to another, when it is in motion. But when acting under a suggestion from the conductor to do so, if a passenger in attempting to pass from one car to another while they are in motion, is injured, he will not be de- barred from a recovery therefor, if the jury find that he made the attempt in conse- quence of either the order or advice of the conductor, and acted differently from what he otherwise would, in consequence there- of. Cleveland, &c. R. Co. v. Manson, 30 Ohio St. 451. But see Ohio, &c. E. Co. 11. Schiebe, 44 111. 460, where such an act was held to preclude a recovery when done against the advice of the conductor. It is not necessarily contributoiy negli- gence for a man accustomed to railroad travel to attempt to pass from a passenger- coach to the baggage-car while the train is moving three or four miles an hour, if, after the signal for his station is given, the conductor tells him that the train will not have time to stop, and directs him to hasten to the baggage-car, in order to get certain goods preparatory to getting off. Davis V. Louisville, &c. E. Co., 69 Miss. 136. Whether there was any apparent danger in a particular act that is contem- plated is, except in very plain cases, a question for the jury. Davis v. Louis- ville, &c. R. Co., 69* Miss. 136. In an- other case, the plaintiff, after entering a passenger-car and standing for some time without finding a seat, was directed by the conductor, while the train was in motion, to pass forward into another ear, where he would find a seat ; in so passing he was jostled by the brakeman on the platform and fell off or was thrown off the cars. It was held that he was not guilty of any contributory negligence and was entitled to recover. Louisville, &c. R. Co. V. Kelly, 92 Ind. 371 ; 47 Am. Eep. 149. 1330 RAILWAYS AS OAEEIEKS OP PASSENGERS. [CHAP. XVII. his doing so, does not render the company liable for injuries received by him ; no person can charge another with the consequences of his by him from being thrown from the plat- form by a sudden lurch of the oar in going around a curve at the customary speed used on the straight portions of the track. It appeared also that the seats were all comfortably filled so that the plaintiff could not have gotten a seat unless room had been made for him by the passengers sitting closer together. With the excep- tion of one white lady and gentleman, the passengers were all colored persons. They were orderly and well behaved. There were the ordinary straps for standing pas- sengers to hold on by. Carter, C. J., said: "The law does not contemplate that these corporations shall take the keeping of a man's discretion into their hands. If the plaintiff saw fit, under the facts found in the verdict, to stand on the platform, he took with him the perils of the plat- form, and cannot recover." James, J., however, said: "I concur with the view that the plaintiff was responsible, or rather that he lost his right of action by con- tributing to the result; but I have not the least doubt that the defendant company was in fault. The special verdict found as a fact that the car was going around the curve at the same speed at which they ordinarily travel in a straight line. That is too fast to go around a curve ; but it is said to be necessary from the construction of the car, and from the fact that they have to go round pretty rapidly with one horse ; so that the rapid speed which they keep up in rounding a curve is largely attributable to the arrangement which they have chosen to make so as to use only one horse. I think therefore that the defendant was also in fault ; but the plaintiff ought not to recover when his own act contributed to the accident." Thirteenth St. R. Co. r. Boudrou, 92 Penn. St. 475, 37 Am. Rep. 707. In Nolan v. Brooklyn, &c. R. Co., 87 N. Y. 63, 41 Am. Rep. 345, it was held that it was not negligent for a passenger to ride on the front platform of a street-car, although there were vacant seats, when he was smoking, and the rule of the company required passengers when smoking to ride on that platform, and the conductor took his fare there without objection or notice. And in Goodrich v. Penn., &c. R. Co., 28 Hun (N. Y.), it was held that a pas- sengerwas not, as matter of law, precluded from recovery for injury received while unnecessarily standing on the platform of a steam-railway car, it appearing that he had or saw no prohibition, aud did not know that it was against the rules to stand there. In an action against a street pas- senger railway company the evidence showed that the plaintiff, while riding in a car of the defendant, got up and gave his seat to an elderly lady. The car being crowded he was obliged to pass out on to the front platfom. While standing there the car ran off the track, and, at the request of the driver, the plaintiff, with others on the platform, got off and as.sisted in get- ting the car again on the track. When this was done the passengers got on the front platform again by stepping over an enclosure three feet high surrounding the same ; and while the plaintiff was in the act of getting on the platform in the same manner, the driver, without a signal or warning, started the horses. By thesudden jerk in starting, the plaintiff was thrown down on the side of the car and was dragged some distance and his foot crushed by the wheel. The accident occurred in the day time, and there was proof tending to show that the driver might have seen the plain- tiff in the act of boarding the car. Proof was also offered to show there was a notice on the inside of the car requiring passen- gers to enter and leave the car by the rear platform. It was held that conceding there was negligence on the part of the plaintiff in attempting to enter the car by the front platform the question was whether the driver of the defendant's car, by the exercise of proper care and pru- dence, might have seen the position of the plaintiff, and thereby have avoided the injury; that taking into consideration that Ihe plaintiff had paid his fare, and that owing to the crowded condition of the car he was obliged to stand on the front plat- form, that he had gotten off at the request of the driverto help in getting the car again on the track, and the other facts in the SEC. 308.] ACCOMMODATIONS, ETC. 1331 own negligence, simply because such other person permitted him to do the act.^ In all cases, however, when questions of liability under case, — there was an obligation on the part of the driver to see that the plaintiff and others had an opportunity to get on the car again before he started the horses ; and if he saw, or by the exercise of proper care might have seen, the position of the (ilaintiff and thereby have avoided tlie in- ury, the defendant was liable, and that thefe was evidence legally sufficient to sub- mit this question to the jury. Lewis' Case, 38 Md. 588 ; Tuff v. Warman, 94 Eng. C. L. ii83; Butterfield v. Forrester, 11 East, 60 ; Dowell v. Gen. St. Nav. Co., 85* Eng. C. L. 195 ; People's Pass. R. Co. V- Green, 66 Md. 84. In Wills v. Lynn, &c. K. Co., 129 Mass. 361, it was held that a passenger injured while sitting on the frcmt platform of a street- car, in spite of the rule of the company and the warning of the driver, has no remedy against the company. The court said, in substance; "Plaintiff's intestate, a passenger on defendant's street-railroad car, when the ear was approaching a draw- bridge, sat down on the front platform. He was told by the driver of the car that he had better not sit in that .place, as it was against the rules of the defendant and unsafe, to which he made a reply not understood by the driver. He continued to occupy his position while the oar was detained at the bridge some fifteen min- utes by an open draw ; and remained there until he fell from the ear after it had passed the bridge, receiving the injuries whereoif ■ he died. There were notices posted upon the car forbidding passengers to be upon the .platforms, and that the defendant would not be responsible for the safety of passengers while there. In an action for such injuries, it was held that the defend- ant was not liable. It was for the plaintiff to prove that the intestate was free from negligence contributing to the injury which he received." In Germantown Pas- senger B. Co. «. Walling, 97 Penn. St. 55, it was held that riding on the front platform of a street-car which is crowded is not contributory negligence per se, pre- cluding a recovery for the death of a pas- senger occurring while so riding. The facts were these : Deceased took passage in one of defendant's street-cars ; when the car stopped for him he tried to get on the rear platform, but could not do so on account of the crowd thereon. He then went to the front platform and found a place upon the step which he took and kept by holding with one hand on to the iron of the dasher and with the other hand to an iron bar under the front window of the car. While the car was going round a corner some little time after deceased had commenced to ride, several passengers were thrown against him, forcing him to let go his hold on the iron bar und«r the window, and causing him to fall over in front of the car, in consequence of which he was run over and killed. The court said: "Conductor, driver, and passengers acted as if there was room, so long as a man could find a rest for his feet and a place to hold on with his hands. Nor was that action exceptional. Notoriously it was very common inl876, and perhaps it is not infrequent at this day. The compa- . nies do not consider such practice danger- ous, for they knowingly sufl'er it and are parties to it. Their cars stop for passen- gers when none but experienced conduc- tors could see a footing inside or out. The risk in travelling at the rate of six miles an hour is not that when the rate is sixty or even thirty. An act which wou)d strike all minds as gross carelessness in a passenger on a train drawn by steam- power, might be prudent if done on a horse-car. Rules prescribed for observ- ance of passengers on steam railroads, which run their trains at great speed, are very different from those on street rail- ways. In the absence of express rules every passenger knows that what might be consistent with safety on one would be extremely hazardous on the other. Street- railway companies have all along consid- 1 Higgins V. N. Y. & Harlem E. Co., 2 Bosw. (N. Y. ) 132 ; South, &c. E. Co. u. Schaufler, 75 Ala. 136 ; 21- Am. & Eng. R. Cas. 405. Compare Long Island E. Co. V. Werle, 98 N. Y. 650 ; 21 Am. & Eng. R. Cas. 429. 1332 EAILWAYS AS CARRIEKS OP PASSENGERS. [CHAP. XVII. such circumstances arise, and the facts are not so clearly estab- lished as to authorize the court to direct a verdict for the defendant, it is a question for the jury whether the plaintiff was guilty of such contributory negligence as will prevent a recovery, and this must be determined in view of all the facts ; and if upon the whole it is found that the negligence of the company was the proximate cause of the injury, the fact that the plaintiff was in an improper place when injured will not prevent a recovety.^ eied their platforms a place of safety, and so have the public. Shall the court say that riding on a platform is so dangerous that one who pays for his standing there can recover nothing for an injury arising from the company's default ? Meesel o. Lynn, &c. R. Co., 8 Allen, 234, was a case much like this in its facts. The court said : ' It is well known that the highest speed of a horse-railfoad car is very moderate, and the driver easily con- trols it and stops the car by means of his voice, his reins, and his brake. In turning round an angle from one street to another, passengers are not required to expect that he will drive at a rapid rate, but on the contrary might reasonably expect a careful driver to slacken his speed. The seats inside are not the only places where the managers expect passengers to remain ; but it is notorious that they stop habitu- ally to receive passengers to stand inside till the car is full, and then to stand on the platforms till they are full, and con- tinue to stop and receive them after there is no place to stand except on the steps of the platforms. Neither the officers of these corporations nor the managers of the cars nor the travelling public seem to regard this practice as hazardous ; nor does expe- rience thus far seem to require that it should be restrained on account of its dan- ger. There is therefore no basis upon which the court can decide upon the evi- dence reported that the plaintiff did not use ordinary care. It was a proper case to be submitted to the jury upon the special circumstances which appeared in evidence.' These remarks are quite applicable to the case in hand. Standing on the front plat- form of a horse-car when there is room inside is not conclusive evidence that the person injured by the driver's default was not exercising due care. Maguire v. Mid- dlesex B. Co., 115 Mass. 239. A street- railway company has the right to carry passengers on the platforms, and if a pas- senger be injured while standing there without objection by the company's agent, whether the injury was with his contribu- tory negligence is for the jury to decide under all the facts and circumstances de- tailed in evidence. Burns w. Bellefontaine, &c. B. Co., 50' Mo. 139. It has also been decided in other States that if a passenger be injured while standing on the platform of a street or horse car the question of his contributory negligence is one of fact for the jury. So little danger exists in jiding on the platforms, accidents to passengers while thus riding are so rare, that this is the first time the question raised has been presented in Pennsylvania. We think the decisions in other States above referred to are sound. They accord with well-settled principles." See same views in Nolan v. Brooklyn City E. Co., 87 N. Y. 63. 1 Zemp V. Wilmington, &c. E. Co., 9 Eich. (S. C.) 84 ; Edgerton v. N. Y. & Harlem R. Co., 3 Barb. (N. Y.) 389 ; Sheridan v. Brooklyn, &c. R. Co., 36 N. Y. 39 ; Willis v. Long Island B. Co., 34 N. Y. 670 ; Clark v. Eighth Ave. R. Co., 36 N. Y. 135 ; Meesel v. Lynn, &c. E. Co., 8 Allen (Mass.), 234. So where a passenger leaps from the car to avoid in- jury, if the danger was such as to justify the step, the company is responsible for the consequences. Southwestern R. Co. v. Faulk, 24 Ga. .S56 ; Railroad Co. v. Aspell, 26 Penn. St. 167 ; Frink v. Potter, 17 111. 406 ; Eldridge v. Long Island R. Co., 1 Sandf. (N. Y.) 89. So for inju- ries received from sudden movements of the train, either in starting or stopping. Stimson v. N. Y. Cent. R. Co., 32 N. Y. SEC. 309.] SAME SUBJECT: SEATS. 1333 It is the duty of a passenger standing on the platform of a railroad car to go into the car when requested so to do by a person having charge of the train, if there is standing room inside, although there are no vacant seats. The fact that the passenger has a well-found ground of complaint against the railroad company for not providing adequate accommodations for passengers, does not release him from the duty of leaving the platform, It is questionable whether, where a passenger refuses to go inside the car when so requested, the brake- man or conductor has the right to force him to do so.^ Sec. 309. Same Subject: Seats. — As a rule, it is the duty of a railroad company to furnish each passenger with a seat ; and if it fails to do so, and the passenger is required to stand up, it is liable for any injury sustained by him in consequence thereof, so long as he is himself in the exercise of due care;^ and the circumstance that the passenger knew that the car was full before he got into it makes no difference. So long as the company consents to take pas- sengers, it is an assurance to them that it will take due care of them ; and it takes the risks incident to the mode in which its agents know that the passenger must ride.^ While a passenger must not unnecessarily expose himself to risk and danger while on a train, yet it cannot be expected that he will constantly remain in his seat ; and if he stands up in the car to look 333 ; Gordon a. Railroad Co., 40 Barb. New York El. E. Co., 73 N. Y. 595 ; (N. Y.) 646 ; Brown «. N. Y. Cent. R. Taylor v. Yonkers, 105 N. Y. 202. Co., 32 N. Y. 597. It is not a passenger's ' Graville v. Manhattan R. Co., 105 business to interfere with the management N. Y. 525. In th* case of Thompson v. of a train. He is not guilty of contribu- Duncan, 76 Ala. 334, the court held that : tory negligence therefore in not pulling " If there be any danger in standing near the bell-rope in order to warn the conduc- an open side-door of a car, when the train tor of an impending collision. Grand is starting or in motion, it is not an un- Eapids, &c. R. Co. v. Ellison, 117 Ind. reasonable presumption that persons of 234 ; 39 Am. & Eng. R. Gas. 480. ordinary prudence are aware of It ; and A railroad company is under no obliga- when a person so standing is thrown from tiou to remove the effects of a continuous the car by the shock attendant on its coup- stonn of snow, sleet, and rain, from the ling with the train, and thereby injured exposed platform of the car while making he cannot complain that he was not noti- its passage between stations or between the fied of his danger, nor lyarned of the termini of its route ; and a passenger -who coming shock." has reason to know that there is snow and ^ Blair v. Erie E. Co., 66 N. Y. 313. ice on the platform, and that the company But the obligation of the company to fur- has had no reasonable opportunity effect- nish a seat for him, does not require the ually to remove it, cannot recover for in- passenger to keep it during the whole trip, juries sustained through a fall caused by Barden v. Boston, &c. E. Co., 121 Mass. 426. his slipping thereon. Palmer v. Pennsyl- » Evansville, &c. R. Co. v. Duncan, 28 vania E. Co., Ill N. Y. 488 ; 37 Am. & Ind. 441. Eng. E. Cas. 150. See also Weston v. 1334 RAILWAYS AS CAERIERS OF PASSENGERS. [CHAP. XTtl. from a window, or to go to the sanitary, or for any reasonable pur- pose, and is injured while doing so through the negligence of the carrier, he is not precluded from a recovery. Thus, if a passenger, in order to look out of a window, presses against a door of which the window is a part, and the door being negligently fastened flies open, and he is injured, he is not guilty of such contributory negligence as precludes a recovery.^ In a Pennsylvania case,^ the plaintiff was a passenger by the defendant's ferry-boat from Camden to Philadel- phia. As the boat approached the wharf she arose from her seat, along with the other passengers, and at the moment of the collision she was standing inside the cabin. The boat struck the bridge with such force as to throw the plaintiff down and produce the injury complained of. The court said : " Of course, it is true that if she had remained in- her seat she would not have been injured, but it does not necessarily follow that her act of leaving her seat was con- tributory negligence. Had she occupied a manifest place of danger, as, for instance, a position very near to the end of the boat where there was no railing, and been precipitated into the water by the shock of the collision, the contention of the defendant would be much more appropriate, and would, perhaps, be conclusive against her. But the position she was in at the moment of the accident was not one of apparent danger at all. ... It is the uniform habit of persons riding on steamboats to be upon their feet at will while the boat is in motion, and especially as it approaches the landing. It is one of the most comfortable and satisfactory features of steamboat travel that passengers are at liberty to move about from place to place on the vessel while it is in motion." Inasmuch as seats are usually provided for less than half the passengers, the argument of the ferry company seems particularly impudent. Sec. 310. Duty of Railroad Company as to Stations. — A railway company is bound to keep its stations and premises in proper repair, and properly lighted, and to exercise proper care in other respects, to furnish a safe ingress and egress for, and to prevent injury to its passengers who come upon them,^ The duty owing by the company 1 Gee V. Metropolitan Ry. Co., L. R. Delaware) &c. R. Co. v. Trantwein, 62 N. 8 Q. B. 125 ; Siner v. Great Western Ry. J. L. 169 ; 41 Am. & Eng. R. Cas. 187 ; Co., L. R. 4 Exoh. 117. Bennett v. New York, &c. R. Co., 67 " Camden, &o. Steam Ferry Co. v. Conn. 422 ; 41 Am. & Eng. R. Cas. 184 ; Monaghan Penn.), 10 W. N. Cas. 47. Boyce w. Manhattan R. Co., 118 N. Y. ' Burbank v. 111. Central R. Co., 42 814 ; 41 Am. Eng. R. Cas. Ill (hole in La. An. 1156 ; 45 Am. & Eng, R. Cas. 693 ; platform) ; Pennsylvania Co. v. Marion, SEC. 310.] DUTY AS TO STATIONS. 1335 in this respect extends to all who come upon the station premises in pursuance of the invitation which it holds out to the public; it embraces passengers who come to take passage on any of its trains, and those who leave its trains at that point, and in each case the duty continues for a reasonable time before and after the departure of the trains.^ The duty also embraces those who are at the station to meet a friend or relative, or to see him safely off,^ or as it has been aptly expressed, " all who are there to welcome the coming or speed the parting guest." ^ Actions have been upheld for injuries sustained from defective platforms ; * from a failure to provide suitable lights hausen v. St. Louis R Co., 91 Mo, 332 ; 28 Am. & Eng. R. Cas. 157. But one who is merely in the station seeking shelter from a storm is not enti- tled to the rights of passenger, and the company owes him no duty. Leary v. Cleveland, &c. R. Co., 78 Ind. 323. So when one comes to the station and finding that his train has left waits there for a horse-car, the company is under no obliga- tion to keep the station lighted while he is so waiting. Heinlein v. Boston, &c. R. Co., 147 Mass. 136; 33 Am. & Eng. .R. Cas. 500. And when one who is a mere loiterer around the station is injured he cannot recover ; the company owes him no duty. Baltimore, &c. R. Co. v. Schwin- dling, 101 Penn. St. 258 ; 8 Am. & Eng. R. Cas. 544 ; Burbank v. 111. Central R. Co., 42Iia. An. 1156 ; 45 Am. & Eng. R. Cas. 693. But one who goes on a station- platform to read a notice of stock killed which has been posted there is entitled to recover for an injuiy sustained in con- sequence of a defective plank in the floor of the depot. St. Louis, &o. R. Co, «. Fairbairn, 48 Ark. 491. The company is bound to aiford a safe passage to and from its mail-cars in order to enable persons desiring to do so to mail letters, and for a failure to discharge this duty it is liable to any person injured thereby, although he came upon the station grounds for the sole purpose of mailing his letters and not to take passage on the company's trains. Hale v. Grand Trunk R. Co,, 60 Vt. 605 ; 15 Atl. Rep. 300. ' Hamilton v. Texas, &c. R. Co., 64 Tex, 251 i 21 Am. & Eng. R. Cas. 336. * As where the flaps were impfoperly turned back. Bramwell, B., in Corn- 104 Ind. 239 ; 27 Am. & Eng. R. Cas. 132 ; St. Louis, &c. R. Co. v. Fairbairn, 48 Ark. 491 ; 30 Am. & Eng. R. Cas. 166. 1 Stewart v. International, &c. R. Co., 53 Tex. 289 ; Pennsylvania Co. v. Marion, 104 Ind. 239 ; 27 Am. & Eng. R. Cas. 132 ; McKone v. Mich. Central R. Co., 57 Mich. 601 ; 47 Am. Rep. 696. But the company is not an insurer of the safety of its passengers, and as in other cases the contributory negligence of the injured person is a complete defence. Renneker V. South Carolina R. Co., 20 S. C. 219 ; 18 Am. & Eng. R. Cas. 149. But where the company has provided safe plat- forms, etc., it is not liable for injuries resulting to a passenger by voluntarily alighting at some other point. Pennsyl- vania R, Co. V. Zebe, 33 Penn. St, 818 ; Forsyth v. Boston, &c. R. Co., 103 Mass. 510. 2 MoKone v. Michigan Central R. Co., 57 Mich. 601 ; 47 Am. Rep. 696 ; 13 Am. & Eng. R. Cas. 29 ; Shannon e. Boston, &c. R. Co., 78 Me. 52 ; 23 Am. Sc Eng. R. Cas. 511. See also Keefe v. Boston, &c. R. Co., 142 Mass. 251 ; Tobin v. Portland R. Co. , 59 Me. 183, post, n. 3, p. 1336. Thus, where the infirmities of the passen- ger make it necessary that he shdnld have attendants, the company owes a duty to them while they are at the station in at- tendance upori him. Hamilton v. Texas, &c. R. Co., 64 Tex. 251 ; 21 Am. & Eng. R. Cas. 336. The fact that one has not yet purchased his ticket, if he is at the station with a lonA fide purpose of taking passage, does not discharge the company of its obligation to him. Bufi'et v. Troy, &c. E. Co., 40 N.Y, 168. See also Muel- 1336 RAILWAYS AS CARRIEES OF PASSENGERS. [CHAP. XVII. to enable passengers safely to leave the premises ; ^ from defec- tive steps or platforms;''' from pits or unfenced holes in the station-ground ; * from the slipperiness of stairs leading to the man v. Eastern Counties By. Co., 4 H. & N. 784 ; Dobiecki v. Sharp, 88 N. Y. 203 ; St. Louis, &o. R. Co. v. Cantrell, 37 Ai-k. 519 ; Liscombe v. New Jersey R. Co., 6 Lana. (N, Y.) 75 (hole in station floor). Where a platform was so nan'ow that a passenger standing thereon was injured by a passing train, the company was held liable. Chicago, &c. R. Co. v. Wilson, 63 111. 167 ; McDonald ■». Chicago, &c. R. Co., 26 Iowa, 124. 1 Alabama, &o. R. Co. v. Arnold, 80 Ala. 600 ; 84 Ala. 159 ; 85 Am. & Eng. R. Cas. 466 ; St. Louis, &c. R. Co. v. White, 48 Ark. 495 ; 30 Am. & Eng. R. Cas. 545 ; Moses v. Louisville, &c. R. Co., 39 La. An. 649 ; 30 Am. & R, Cas. 556 ; Bueneman v, St. Paul, &c. R. Co., 32 Minn. 390 ; 18 Am. & Eng. R. Cas. 153 ; Stewart o. International, &c. R. Co., 53 Tex. 289 ; Patten v. Chicago, &c. R. Co., 32 Wis. 524 ; Nicholson v. Lane & York- shire Ry. Co., 34 L. J. (Exch.) 84 ; Bir- kett V. Whitehaven June, 4 H. &N. 730 ; Martin v. Gt. Northern Ry. Co., 16 C B. 180 ; Cornrnan v. Eastern Counties By. Co., 4 H. & N. 781 ; Toomey v. London, &c. Ry. Co., 3 C. B. N. s. 146 ; Foy v. London, &e. Ey. Co., 18 C. B. N. s. 225, affirmed, L. R. 4 Exch. 117. 2 McDonald v. Chicago, &c. R. Co., 26 Iowa, 124 ; 95 Am. Dec. 114; Delaware, &c. R. Co. V. Trautwein, 52 N. J. L. 169 ; 41 Am. & Eng. K. Cas. 187 (defective stair- way) ; Liscombe v. Jersey, &c. R, Co., 6 Lans. (N, Y.) 75 (defective floor of depot). In East Tennessee, &c. R. Co. v. Watson, 94 Ala. 634 ; 10 So. Rep. 228, the com- pany was held liable for an injury caused by passenger's stepping into a hole in a bridge constructed on the company's right of way, but put there by the proprietor of an adjoining hotel and tnmed over by him to the company ; and this although the company had never repaired it or exercised any control over it, and it had not been used by the company for any purpose for three years prior to the accident. So where a company erected and maintained an approach to its boat-landing, the fact that it was a part of the public street can- not relieve the company from responsibility for injuries caused by defects in its con- , struction. Skottowe v. Oregon, &c. K. Co., 22 Oreg. 430 ; 30 Pac. Rep. 222. ' Burgess v. Great Western Ry. Co., 6 C. B. N. s. 923 ; 95 Eng. Coin. -Law, 923 ; McKone v. Mich. Central R. Co., 57 Mich. 601 ; 47 Am. Rep. 596 ; 13 Am. & Eng. R. Cas. 29 ; Cross v. Lake Shore, &c. R. Co., 69 Mich. 363 ; 35 Am. & Eng. E. Cas. 476 (civil engineer properly allowed to testify that hole was in dangerous place and needed repairing) ; Louisville, &c. R. Co. ». Wolfe, 80 Ky. 82. Boyce v. Man- hattan R. Co., 118 N. Y. 314 ; 41 Am & Eng. R. Cas. Ill ; Seymour v. Chicago, &c. R; Co., 3 Biss. (U. S.) 43. In Tobin V. Portland, &c. R. Co., 59 Me. 183, 8 Am. Rep. 415, the liability of railroad compa- nies to persons coming to their stations upon business, and not as passengers, for injuries caused by defects in station-plat- forms was,adjudicated, and it was held that a hackman could recover of a railroad company for an injury received while car- rying a passenger to their depot for trans- portation, by stepping without fault into a cavity in the platform,negligeutly leftina defective condition. It is the well-settled rule that railroad companies are bound to keep their platforms and landing-places safe and convenient for all who make use of their cars as a means of conveyance. But it is not so clear what the liability of the company is in this respect to persons not passengers. But Appleton, C. J., in delivering the opinion of the court in this case, said: "The hackman conveying passengers to a railroad depot for transpor- tation, and aiding them to alight upon the platform of the corporation, is as rightfully upon the same as the passengers alighting. It would be absurd to protect the one from the consequences of corporate negligence and not the other. The hackman is there in the course of business ; but it is a busi- ness important to and for the convenience and profit of defendants. The general principle is well settled that a person in- SEC. 310.J DUTY AS TO STATIONS. 1337 station ; ^ from allowing articles to stand or lie upon the platform ob- structing and endangering travel over it, as a switch handle ; ^ and generally, the company is bound, as to its passengers or persons upon its premises " by invitation," to see to it that its premises are in such a condition, in all respects, that a person in the exercise of ordinary care can leave them without injury ; and this extends to and embraces proper and suitable platforms, steps, and walks, as well as suitable lights.^ The question as to whether a station and its grounds are sufficiently lighted is one of fact, and the mere circumstance that they were lighted sufficiently for the company's servants and agents who jured without neglect on his part, by a de- fect or obstruction in a way or passage over which he is induced to pass for a lawful purpose, by an invitation, express or implied, can recover damages for the injury sustained against the individual so inviting, and being in fault for the de- fect." Barrett v. Black, 56 Me. 498 ; 96 Am. Dee. 497 ; Carleton v. Franconia Iron & Steel Company, 99 Mass. 216. From the general duty which railroad companies owe to persons thus apparently invited, such as friends and companions of passen- gers, porters and hackmen, it' would seem that they are responsible for injuries re- sulting from a neglect of that duty in respect to platforms, station-approaches, etc. A railway company was held liable for the death of a passenger who slipped into an unfenced cattle-guard and was killed by a passing train. Hoffman v. N. Y. Central E. Co., 75 N. Y. 605 ; Hart-j - wig V. Chicago, &c. R. Co., 49 Wis. 358 ; Hulbert v. N. Y. Central R. Co., 40 N. Y. 145. ' Davis V. London, &c. Ry. Co., 2 F. & F. 588 ; Osborne v. London, &c. Ry. Co., 21 Q. B. Div. 220 ; 35 Am. & Eng. K. Cas. 483. In the case of Baltimore, &c. R. Co. V. Rose, 65 Md. 485 ; 27 Am. & Eng. Cas. 125, which was an action for an injury sustained by reason of defective stairs leading from a pier, the company defended on the ground that plaintiff had no right to make use of those particular stairs. But, it appearing that the company had provided no special means of ingress or egiess, the court held that the de- fence was not available ; that until it had constructed and designated a special way for ingress and egress passengers had VOL. 11. — 34 a right to use any way not prohibited to them. 2 Martin v. Great Northern By. Co., 16 C. B. 179 ; Wabash, &c. E. Co. v. Peyton, 106 111. 534 ; 18 Am. & Eng. R. Cas. 1. Thus where passenger while stand- ing on platform is struck by a part of the car which projected over the platform, it is proper to submit the case to the jury; a passenger has a right to presume that he can stand on the platform with safety. Dobiecki v. Sharp, 88 N. Y. 203 ; 8 Am. & Eng. R. Cas. 485. ' Cornman v. Eastern Counties Ry. Co., 4 H. & N. 781 ; McKone v. Mich. Central R. Co., 57 Mich. 601 ; 47 Am. Rep. 596. In Beard v. Connecticut, &c. R. Co., 48 Vt. 101 , the plaintiff was at the defendant's depot for the purpose of taking the train. There was a platform extending froin the east side of the depot to the track over which passengers passed in going to and from the cars. There were stairs leading through the centre of the depot to the street on the opposite side which was several feet lower than the track, and there were also stairs at either end of the depot leading , from the platform to the street. The stairs at the north end of the depot were open at the top, and there was noth- ing to indicate that they were not for the use of passengers. In fact they were built by and were intended for the sole use of the express company, but they were on the defendant's premises. The plaintiff in attempting to pass down these stairs in the dark, from the upper platform to the street, without fault on her part, fell from the lower platform to the ground and was in- jured. It was held that the defendant was responsible for the injury. 1338 RAILWAYS AS CARRIEKS OF PASSBNGEES. [CHAP. XVII. know the premises is not sufficient. Theymust be sufficiently light to enable strangei's safely to get upon or leave the premises.^ So if the exit side of the station is blocked by a train, and a passenger in at- tempting to cross behind it falls over some object that is left there and is injured, the company is liable.^ But in order to fix the liability of the company, it must appear that they managed or used the property in such a way as to make it likely to be a source of danger' to pas- sengers and others lawfully upon it.^ It is not enough to prove the mere fact that an injury was received by falling down the steps of the station, but it must also be shown that they were constructed in such a way as to be more than ordinarily dangerous ; * or, that the company had placed obstacles upon the platform, as a weighing machine, over which a passenger tumbled and was injured, but it must also be shown that the mischief could not reasonably have been foreseen, and that precautions to prevent it ought to have been used.5 " It is the duty of railway passenger carriers," say the court in an Iowa case,^ "to provide comfortable rooms for the adcommodation of passengers, while waiting at stations, and to enforce such regula- tions in regard to smoking therein as to enable passengers to occupy them in reasonable comfort. If this is not done, it will afford reasonable excuse for passengers ^to ent-er the cars before they are drawn up in front of the platform in preparation for immediate departure. And, if in so doing a passenger sustains injury through a defect in the platform, against or opposite which the cars are standing, . . . the company will be held responsible. Eailway passenger carriers have power to make reasonable rules and regu- 1 Missouri Pac. K. Co. v. Neiswanger, platform in order to avoid being struck by 41 Kan. 621 ;-39 Am. & Eng. R. Cas. 471 ; a piece of timber which projected over the Martin v. Gt. Northern Ry. Co., 16 C. B. platform, was allowed to recover for the 180 ; Birkett v. Whitehaven Junction Ry. impairment of her health resnlting from Co., 4 H. & N. 730. But where there are the accident. lighted stairways leading from the station, ' Burgess v. Gt. Western Ey. Co., 32 a passenger assumes all risk in attempting L. T. Rep. 76. to use an unlighted one. Bennett v. New i Toomey v. London, &c. Ry. Co., 3 York, &o. R. Co., 52 N. J. L. 422 ; 41 Am. C. B. N. s. 146. See Kelley v. Manhattan & Eng. E. Cas. 184. R. Co., 112 N. Y. 443 ; 3/" Am. & Eng. R. = Nicholson o. Lanca,shire, &c. Ry. Cas. 60 ; Ryan v. Manhattan R. Co., 121 Co., 34 L. J. Exohq. 84 ; Holmes v. N. Y. 126 ; 44 Am. & Eng. E. Cas. 426. Northeastern Ry. Co., 38 id. 161. In « Cornman v. Eastern Co. Ey. Co., 4 the case of Buchanan v. West Jersey, &c. H. & N. 785. R. Co., 52 N. J. L. 265 ; 41 Am. & Eng. « McDonald v. Chicago, &c. R. Co., R. Cas. 59, a female passenger who was 26 Iowa, 124 ; 95 Am. Dee. 114. injured by her throwing herself to the SEC. 310.J DUTY AS TO STATIONS. 1339 lations, in regard to the coDduct of passengers, extending to the time and mode of entering the cars ; but such rules and regulations must, in some way, be made known to passengers, or they will not be in fault for not conforming to them." It was, accordingly, held, in this case, that the female plaintiff, who found the passenger-roopi unfit for occupation, by reason of tobacco smoke and other impurities, and attempted to enter the cars which had not yet been drawn up to the platform, and was injured by the giving way of the steps at the end • of the platform, was entitled to recover. Dillox, C. J., in this case,i laid down the following rule as applicable to all cases of injury 1 McDonald v. Chicago, &c. E. Co., 2$ Iowa, 124 ; 95 Am. Dec. 114. In this case, it appeared that plaintiff in company with her husband, having purchased a ticket, in attempting to get aboard the train some twenty minutes before it was time for it to leave, and at a point some distance from the usual place, she stepped upon the end of a plank in the platform which, being loose and out of place at one end, gave way, and let her down upon the track headforemost under the train, break- ing her leg and otherwise injuring her. It was so dark that the plaintiff could not see the condition of the plank. The de- fendants showed that the point at which the injury happened was three hundred feet from the station, and that the usual place for passengei-s to get on or off the train was at a point immediately in front of the station. It was also shown that it was customary when the train arrived, as in this instance, from the west, to run back so as to bring the baggage and express oars to a point opposite the freight-depot for the purpose of discharging and receiv- ing baggage and express matter. This movement, on the evening on which the accident in question happened, placed the passenger-coaches west of the west end of the platform, so that the nearest passenger- car was about one car length beyond the steps at the west end of the platform. It was while the ears were thus standing that the plaintiff, without waiting for them to be drawn up to the platform in front of the passenger-depot, -started for them, walking the whole length of the platform, and in descending the steps the injury for which this action was brought happened. Defend- ant also produced evidence to the effect "that there was plenty of room to get on and off the trains from the platform ; and that there was no necessity for any one to go down these steps to get on. Before leaving, trains always draw up in front of the passenger-depot and stop to take on passengers. The accident happenei} fifteen or twenty minutes before the leaving-time of the train. The steps are not intended or used for passengers to get on the trains." The defendant asked the court to give the following instructions; "1. If the jury believe from the evidence that the defendant, at the time of the alleged injury at the station, was provided with a safe and suitable platform in front of and adjacent to the passenger-rooms of said station, so that passengers could safely and conveniently pass from said room to the trains, and that passenger trains stopped at said platform for the purpose of receiving passengers, and if said plain- tiff, in attempting to get upon said train by a different and unusual way and at a different and unusual place, met with said flGcident, then the plaintiff is not entitled to recover in this action. 2. That if the plaintiff attempted to enter the train at a place not prepared or designed by the defendant for receiving passengers on trains, there being no paramount neces- sity for so doing, and in making such attempt she received the said injury, then her own fault contributed to the same, and the plaintiff cannot recover. 3. The liability of defendant as a common earner did not commence as to the plaintiffs until the train which they were to take was drawn up to the usual place for receiv- ing passengers, unless they were directed 1340 RAILWAYS AS CAEEIEES OF PASSENGERS. [CHAP. XVII. about stations and in entering cars : " Railway companies are bound to keep in a safe condition all portions of their platforms and ap- proaches thereto, to which the public do or would naturally resort, and all portions of their station-grounds reasonably near to the platforms, where passengers, or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go." 1 by some authorized agent of defendant to go upon the train at anotlier and different place or before the train readied the usual place," Each of these was refused, and the defendant excepted. The court then charged the jury as follows : " The prin- cifial question for you to determine is, by whose fanlt or negligence did the accident occur ? If one of the steps was loo.se and not nailed down, by reason of which the accidtot happened, it is such a want of care as would render the defendant liable, unless you find that the accident happened, or was contributed to, by the want of ordinary care and prudence on the part of the plaintiff. It is for you to detennine from the evidence whether the plaintiff used ordinary care and prudence in leaving the depot and going to the cars by the way and at the time she did ; and by ordi- nary care is meant such care and prudence as an ordinarily prudent person would exercise under like circumstances. If you find that an ordinarily prudent person would not have gone down the steps of the platform where the accident occurred, but would have waited until the passen- ger-oars were opposite the passenger-depot, then the defendant is not liable. And if you find that the plaintiff went by a way which was not used or travelled over by passengers to enter the cars, and that a person of ordinary prudence would not have gone by that way, you may fairly infer that there was a want of ordinary care on her part. Passengers must exer- cise ordinary care in approaching and entering the cars. If, however, you find that the defendant backed its train up to the place where it stood when the accident happened ; that persons could conveniently and safely approach the train where it then stood but for the defective step, and there was no rule or regulation of the company prohibiting persons from ap- proaching the cars by that way, and that ' an ordinarily prudent person would have approached the train by that way, the defendant is liable, if the accident occurred by reason of the defective step." The charge was fully sustained on appeal. McDonald. tj. Chicago, &c. R. Co., 26 Iowa, 124 ; 95 Am. Dec. 114 1 Burgess v. Gt. Western Ey, Co., 6 C. B. N. s. 923 ; Martin ». Great Northern Ry. Co., 16 C. B. 179. In Sheperd v. Mid- land Ry. Co., 20 W. R. 705, the plaintiff, while waiting for the train, it being cold, walked back and foi'ward on the platform in front of the station, and slipping on a strip of ice, fell, dislocating his shoulder. It was held that he could recover. In Caswell V. Boston, &c. R. Co., 98 Mass. 194 ; 93 Am. Dec. 161, it was held that where a passenger had stepped upon the platform in front of the station to wait for a train, and by the negligent mis- placement of a switch, an engine appeared to be approaching directly towards the platfonn, and the passenger had cause to apprehend danger, and, while running to avoid it, was injured, the company was liable. In Longmore v. Great Western Ey. Co., 19 C. B. N. s. 183, it appeared that a railway company, for the more con- venient access for passengers between two platforms of a station, erected across the line a wooden bridge which the jury found to be dangerous. It was held that the company were liable for the death of a passenger through the faulty construction of the bridge, all hough there was a safe one about one hundred yards further around, which the deceased might have used. In Cockle «. Southeastern Ey. Co., 27 L. T. N. s. 320, a railway train in which the plaintiff was a passenger, on arriving at the station of the plaintiff's destination, was drawn up with the body SEC. 310.] DUTY AS TO STATIONS. 1341 Wherever passengers are accustomed to be received upon a train, whether at the station-house, at the water-tank, or elsewhere, rail- road companies are bound to keep in a safe condition for transit the ordinary space in which passengers go to and from the train, and pas- sengers have the right to presume that this duty has been performed.^ Where it appears that there was no passenger-platform to indicate the proper place for passengers to enter the cars, and it was the cus- tom of the company to' receive and discharge passengers on both sides, and the plaintiff himself, on former occasions, had been received and discharged on the east side of the track, as had other passengers all along, for a distance of over two hundred feet ; it was held that the company, having permitted this method of receiving passengers at of the train alongside the platform, but with the last carriage, in which the plains tiff rode, opposite a receding part of the platform, at which persons could not alight, — a space of about four feet inter- vening between it and the train. Arriv- ing trains were not usually drawn up at this spot, but at a point farther on, where the platform was well lighted with gas-lamps. It was a dark night, and there were no lamps lighted near the place where the plaintiff's carriage stopped. No express invitation to the passengers to alight, and no warning of danger in alight- ing was given by the company's servants, but the train had come to a final stand- still. The plaintiff opened the door of her carriage, stepped out and fell, and thereby sustained injuries in respect of which she brought her action against the company. It was held by the court (affirming the judgment of the Court of Common Pleas, and following Prseger v. The Bristol & Exeter Ry. Co., 24 L. T. E. N. s. 105), that the action was maintainable ; for the leaving a carriage which has been brought up to a place at which it is unsafe for a passenger to alight, under circumstances which warrant a passenger in believing that it is intended she shall get out, and that she may, therefore, do so with stifety, without any warning of her danger, amounts to negligence on the part of the company, for which, at least in the ab- sence of contributory negligence on the part of the passenger, an action may b6 maintained. 1 Hulbert v. N. Y. Central R. Co., 40 N. Y. 145. In Green v. Erie R. Co., 11 Hun (ST. Y.), 333, the plaintiff's intestate was a passenger on a western- bound train of defendant, for Otisville, of which place he was resident ; passengers arriving there from the east are compelled to alight upon a platform between the tracks and cross the eastern track, in order to reach the station. The plaintiff's intes- tate stepped from the smoking-car, at the end nearest the locomotive, upon the plat- foiTn, and from thence upon the eastern track, when he was struck and killed by a train of coal-cars going east, the engine qf which had been switched off. There was no brakeman on the forward end of the coal cars, nor was any signal given of its approach. The defendant claimed that the plaintiff's intestate was guilty of con- tributory negligence, as there was no evi- dence to show that he looleed to the west befbre stepping on the track. It was held that the question of contributory negli- gepce was, under the circumstances of the case, a question for the jury, and that it was for them to draw the inference as to whether the deceased looked both ways for the train, or not, anil it was error to direct a non-suit. And that although, as a gen- eral rule, the plaintiff iri an action to re- cover damages sustained by reason of the negligence of the defendant cannot recover if he has been guilty of contributory neg- ligence, yet where the defendant could, by the exercise of ordinary care and diligence, have prevented the accident, the plaintiffs negligence will not excuse him. 1342 RAILWAYS AS CAREIEKS OP PASSENGERS. [CBAP. XVII. the station, must be regarded as responsible for the safety of the ap- pliances used, and mixst answer for the injury sustained by plaintiff because of their inefficiency.^ A passenger on a railway is justified in assuming that the company has, in the exercise of due care, so regulated its trains that the road will be free from interruption or obstruction when passenger trains stop at a depot or station to receive and discharge passengers.^ But where it has a platform and other facilities for entering and leaving the cars with safety on the depot side of their track, the failure to have the opposite side likewise prepared as a place for entering and leaving the cars cannot be regarded as negligence ; it may select and adhere to such arrangement of its depots and platforms as it may see fit, if those made are safe and commodious.^ The company's 1 Phillips V. Rensselaer, &c. U. Co., 57 Bafb. (N. Y.) 644. In the ease of Plop- per V. N. Y. Central R. Co.,' 13 Han (N. Y.), 625, a prominent question on the trial wijas whether the plaintiff was not guilty of contributory negligence which conduced to the injury, by attempt- ing to get off the cars on the south side of the train in place of getting off on the north side, where the depot was located, and on which side passengers generally alighted from the defendant's trains, and on which north side several passengers alighted in safety on the occasion in question. The plaintiff had never attempted to alight from the train on the south side except on this occasion. She came out of the car, as it was slowing down, on to the rear plat- form, and casting a bundle which she was carrying down into the highway which crosses the railroad at right angles at that point, proceeded down the steps of the car. When she arrived at the bottom step, with her right foot upon the gi'ound and the other upon the step, and with her left hand holding the rail, the conductor, being upon the north side of the train a,nd not perceiving that any person was in the act of alighting on the south side of the train, had given a .signal to the engineer indicat- ing that the train was to proceed ; and when the plaintiff was in this position, one foot upon the ground and the other upon the car-step, the train had acquired such speed that it was impossible for the plaintiff to recover herself, and she was dragged along in that manner for a. few feet until her hold upon the rail was broken and she was thrown into the ditch, and it is alleged received the injuries for which she claimed to recover. The judge at the Circuit instructed the jury that as matter of law the attempt on the part of the plaintiff to leave the cars on the south side was not evidence of such contributory negligence as would prevent the plaintiff's recovery ; but this judgment was reversed at General Term, the court holding upon the authority of Keating v. N. Y. Central R. Co., 49 N. Y. 379, that the question was for the jury. Taber v. Delaware, &c. R. Co. , 71 N. Y. 489. See however cmUra, Secor V. Toledo, &c. R. Co., 10 Fed. Rep. 15 ; Illinois, &c. R. Co. v. Green, 81 111. 19 ; Blodgett v. Bartlett, 50 Ga. 353. 2 Baltimore & Ohio R. Co. o. State, 60 Md. 449 ; 12 Am. &.Eng. E. Cas. 149 ; Dobiecki v. Sharp, 88 N. Y. 203. It is contributory negligence for a passenger to crawl under a car which has a locomotive attached, in order to reach his train, and if he is injured iu so doing he has no right of action. If he cannot reach his train without subjecting himself to peril, he must -seek his remedy against the company for a violation of its duty. Smith v. Chi- cago, &c. R. Co., 55 Iowa, 33. Compare Ranch K. Lloyd, 31 Penn. St. 358, where a different rule was applied, plaintiff being a child of six or seven years. " Michigan Central E. Co. v. Coleman, 28 Mich. 440. SEC. 310.J DUTY AS TO STATIONS. 1343 failure to light its depot-buildiug, or to have an agent there to aid passengers leaving the train at night, are acts from which negligence may be inferred, and it is a question to be submitted to the jury to determine, from all the facts and circumstances, whether the de- fendant was guilty of neglect in those respects, and whether, if so, its negligence was the direct and proximate cause of the accident to the plaintiff so as to render it liable.^ It is also liable to a pas- senger who, while entering the station for the purpose of taking an approaching train, is struck and injured by mail-bags carelessly and negligently thrown from the mail-car by a postal-clerk em- ployed by the United States government ; for although the injury does not result from its act or the act of any person over whom it has control, still the company having knowledge that the mail-bag was thrown out in that way habitually, was guilty of a want of ordi- nary care in discharging the high duty owing to its passengers in not taking measures to protect them from such injuries.^ The company cannot be made responsible to a passenger when the injury might have been avoided if he had made proper in- quiries of the conductor, instead of relying upon his own knowledge and judgment. But in such cases it is a question for the jury whether the passenger was negligent. Thus, in a Wisconsin case, at about half past nine o'clock on a dark, rainy, and snowy night, the plaintiff went to the defendant's depot at a village, for the purpose of taking tlie caboose at the rear of the defendant's freight train for his place of residence. The train stopped with the caboose ' Patten v. Chicago, &c. E. Co., 36 on appeal. Carpenter i;. Boston, &c. R. Wis. 413. It is the duty of a railroad Co., 97 N. Y. 494 ; 21 Am. & Eng. E. corporation to provide for a passenger a Cas. 331, reversing 24 Hun, 104. In an safe passage to the train he desires to take, exactly similar case in Massachusetts, the and take reasonable care that he shall not, same conclusion was reached. Snow v. while on its premises, be exposed to any Fitehburg E. Co., 136 Mass. 552 ; 18 Am. unnecessary danger, or to one of which it & Eng. R. Cas. 161. It is the duty of the is aware. It is bound to exercise the company to provide for the safety of its utmost vigilance, not only in guarding its passengers as far as human care and fore- passengers against careless interference by sight will go ; that is, to use the utmost others, but even against violence ; and if care and forethought to discover and con- in consequence of neglecting this duty, a trol all causes likely to produce injurious passenger receives injury, which, in view eflects to its passengers in so far as it can of all the circumstances, might have been do so by the use of the most efficient reasonably anticipated, it is liable. Car- means or agencies of which the nature of ' penter v. Boston, &c. E. Co., 97 N. Y. the case will admit. Hutchinson on Car- 494 (passenger injured by being struck by riers, §§ 449 et seq : Carpenter v. Boston, a mail-bag thrown out by a postal clerk). &c. E. Co., 97 N. Y. 494; 27 Am. & Eng. 2 The lower court held that the com- E. Cas. 331 ; Muster v. Chicago, &e. E. Co., pany was not liable, but this was reversed 61 Wis. 325 ; 18 Am. & Eng. R. Cas. 113. 1344 EAILWATS AS CAKEIERS OP PASSENGERS. [CHAP. XVII. several rods north of the depot-platform, and two car-lengths north of a cattle-guard, which was constructed across both tracks of the road and between them, and was partly uncovered. The plaintiff asked the night-watchman whether he would have to walk that far back to get on the caboose, and was answered affirmatively, . and while on his way to the caboose met the conductor with a lantern, accompanying lady passengers from the caboose ; nothing was said to him by the conductor, and before the plaintiff reached the caboose he fell into the open cattle-guard and was injured. He had been in the habit of taking this train with the caboose standing north of the platform, but had never taken it with the caboose standing north of the cattle-guard ; and he had never noticed the situation and condition of the cattle-guard, nor did he know before the accident that the caboose stood north of it. It was held that these facts warranted the jury in finding that the defendant was guilty of negligence, and that the plaintiff was free from contribu- tory negligence.^ A passenger has the right to presume that he can stand without danger upon a depot-platform.^ And the company is bound to provide safe platforms for the landing of passengers, of sufficient length to afford safe egress from an ordinary train ; ^ and it is gross negligence for.it to construct its platform for passengers so narrow that a passenger while standing upon it may be injured by a passing train.* It is its duty to remove snow and ice from a platform over which it is necessary for passengers to pass in order to reach its cars ; or to take precautions by covering it with ashes or other substance to protect passengers passing over it from danger to which otherwise they would be exposed. And a passenger has the right to assume that the corporation has performed its duty, and that the platform is safe. His going upon it in order to reach the cars is not, therefore, of itself, contributory negligence.^ But where the passenger has an 1 Hartwig v. Chicago, &o. B. Co., 49 N. s. 146, it appeared that on the platform Wis. 358. there were two doors in close proximity to / 2 Dobieoki v. Sharp, 88 N. Y. 203 ; 8 each other, the one, for necessary purposes. Am. & Eng. E. Cas. 485; Jeffersonvilie, had painted over it the words, " Forgentle- &c. E. Co. V. Eiley, 39 Ind 568. men," the other had over it the words, 8 St. Louis, &c. R. Co. V. Cantrell, 37 "Lamp-room." The plaintiff, having occa- Ark. 519 ; 40 Am. Eep. 105. siontogo to the urinal, inquired of astran- * Chicago, &c. R. Co. ». "Wilson, 63 ger where he should find it, and having 111. 167. received a direction, by mistake opened the 6 Weston V. New York Elevated R. door of the " lamp-room " and fell down Co., 73 N. Y. 595. Thus, in the case of some steps and was injured. In an action Toomey v. London, &c. Ey. Co., 3 C. B. against the railway "company it was held SEC. 310.] DUTY AS TO STATIONS. 1345 opportunity to do so, he must look for himself, and not rush reck- lessly upon danger. A railroad company having a telegraph office in one of its stations for the use of the public is responsible to one of its passengers, who is injured solely because of the company's negligence in failing to keep in proper condition the structure or platform erected by them over which the passenger, in alighting from the cars, must pass to reach the telegraph office.^ It is bound so to fence a station that the public may not be misled, by seeing a place unfenced, into injuring themselves by passing that way, it being the shortest to the station.^ The general duty of a railroad company as to its stations may be thus summed up : All the property of a railroad company, inclu- ding its depots and adjacent yards and grounds, is its private property, on which no one is invited or can claim a right to enter except those persons who have business with the railroad ; which class embraces, not only passengers, but protectors and friends attendant on their departure, or awaiting their arrival. To the class oi persons thus having business the railroad company is under obli- gation to keep in safe condition all parts of its platforms, with the approaches thereto, to which the public do or would naturally resort, and all portions of the station grounds reasonably near to the plat- form where passengers would be likely to go, and to provide safe waiting-rooms, and to keep the depot and platform well lighted at night; but to the public at large the company owes "nothing beyond the observance of the duties of good neighborhood," which includes " the universal duty of doing no wilful or wanton injury, and of not erecting or continuing on or near its platform or approaches, to which the public may be expected to go, any nuisance, trap, or pit- fall from which personal injury is likely to ensue." * that in the ahsenee of evidence that the months had been in the almost daily habit place was more than ordinarily dangerous; of travelling on the line and using the the judge was justified in non-suiting the stairs, in ascending them' in the daylight plaintiff, on the ground that there was no slipped upon the brass nosing and was evidence of negligence on the part of the injured. It was held that there was no company. In another English case, the evidence of negligence on the part of the defendant had at one of its stations a stair- defendant to go to the jury. Grafter v. case, used to enable passengers to ascend Metropolitan Ey. Co., L. E. 1 C. P. 300. from the- platform to the street ; the stairs ^ Clussman v. Long Island E. Co., 9 were six feet wide, and were nosed with |a Hun, 618 ; affirmed, 73 N. Y. 606. strip of brass two and one-half inches in ^ Burgess v. Great Western Ey. Co., width, which had worn smooth and slip- 32 Law Times, 76. pery, and were not provided with any * Montgomery, &c. R Co. v. Thomp- hand-rail. The plaintiff, who for eighteen son, 77 Ala. 448. The building in the city 1346 RAILWAYS AS CAERIERS OF PASSENGERS. [CHAP. XVII. Sec. 310 a. Further as to Injuries at Stations. — A railway company cannot be said to be wholly free from negligence when it calls npon passengers to disembark, for the purpose of going to its gassenger- depot, without any warning or information that a train is about to cross the path, and immediately, and before a passenger has time to get beyond the path of the expected train, allows the locomotive silently, and without ringing the bell or giving any alarm, to rush upon and crush him.^ Thus, a station on defendant's line was situated south of Montgomery known as the "Union Depot," with the yard or grounds annexed,- is the property of the two railroad com- panies known as the South and North Alabama, and the Louisville and Nash- ville ; but the Montgomery and Eufaula railroad company having acquired by lease, at a stipulated rent, the right to use the property in common with them for the arrival and departure of its trains, with the use of its waiting-rooms, ticket-office, baggage-room, etc., is liable to passengers and the public generally, in relation to the property, as if it were the owner in fee. The plaintiff, in this case, came to Mont- gomery on the Montgomery and Eufaula railroad, and, on alighting from the train at the Union Depot, desiring to find a privy, made inquiry of a stranger, who pointed in the direction of a privy erected on the bank of the river at the further end of the platform, about fifty yards from the depot ; and in trying to find it, he wan- dered beyond it in the dark, fell down the steep bluff, and sustained serious injuries. The railroad platform was well lighted, and extended from the depot to the river ; but there was no light at the privy, and a house intervened between it and the lights on the platform. It was held, on these facts, that the plaintiff had no cause of action against the railroad companies who owned the property, as to them being a mere stranger ; and that he could not recover against the Montgomery and Eufaula cor- poration, lessees of the property, because being acquainted with the locality, he was guilty of contributory negligence in at- tempting to find the privy without further inquiry. Montgomery, &c. E. Co. v. Thompson, 77 Ala. 448. i Armstrong v. N. Y. Central R. Co., 66 Barb. (N. Y.) 437; affirmM, 64 N. Y. 635. A passenger when taking or leaving a railroad car at a station has a right to assume that the company will not expose him to unnecessary danger, but will dis- charge its duty, which requires it to pro- vide passengers a safe passage to and from the train. Brasselt f. N. Y. Central R. Co.^ 84 N. Y. 241. In this case there was nothing to indicate on which side the passengers were to al ight ; plaintiff alighted on a side where it was necessarj' to cross several tracks, and in crossing she was in- jured by an approaching engine. It was held that the question of her contributory negligence being a matter of doubt was for the jury. To permit a train to pass on a track between a depot and another track on which a passenger train was standing while discharging and receiving passen- gers, just as passengers were passing from the depot to take that train, and across which track they were obliged to walk to reach their train, without any provision having been made on the part of the com- pany to avert danger, was held to have been actionable negligence. Brassell v. N. Y. Central R. Co., 84 N. Y. 241 ; Balti- more, &c. R. Co. 0. State, 60 Md. 449. The rule that any person who goes upon a railroad track incautiously, or without using all reasonable precaution io escape injury, assumes the hazard, and, if injury ensues, is without remedy, is to be applied in de- termining the liability of a railroad cor- poration where the injury is sustained by a person while crossing the track on a public highway ; hut, it has iio application to a case where, by the arrangement of tlw corporation, it is made necessary for pas- setigers to cross the track in passing to and from the depot to the cars. Klein v. Jewett, 26 N. J. Eq. 474. If a person buys a ticket which entitles him to a passage over SEC. SlOa.J FURTHER AS TO INJURIES AT STATIONS. 1347 of the tracks, two in number, running east and west, and just east of a highway crossing them. While the plaintiff was waiting there a railway from A. to C, and stops at B., intending to resume his journey to C. the same day, leaves the station at B., and afterwards, while on his way to the statioh of another railway company near by, re- turns to the station wliich he had left, and is injured while crossing tlie tracks, through the negligence of the company which had sold him the ticket, when he might have crossed the track at a highway crossing, he is a trespasser, and cannot in the ahsence of evidence that the negligence was wilful, maintain an action for the in- jury, although the defendant's platforms extended between two hi^ways crossing the track, and people have heen accus- tomed to pass from the station on one railway to that on the other at that point, without objection by the company, and althongii hia ticket does not forbid stop- ping over at B. Johnson v. Boston, &e. R. Co., 125 Mass. T.^i. In the case of Terbnt v. Bristol, &c. Ry. Co., L. R. 6 Q. B. 73, the stations of the defendant and of two other railway companies at B. adjoin, and are open to one another, and the pas- sengers of each company are in the habit of passing directly from one to the other, the whole area being used as common ground by, the passengers of all three com- panies. ' While the plaintiff was standing on the defendant's platform, on his way from the terminus of one of the other com- panies to the booking-office of the other company, waiting for his luggage, a por- ter of the defendant negligently drove a truck laden with luggage, alid a portman- teau fell off 'and injured the plaintiff. It was held that as the negligence complained of was an act of misfeasance by a servant of the defendant in the course of his em- ployment, the maxim respondeat superior applied ; and that under the circumstances the defendant was liable. Although the agents and employes of a railway company may be guilty of gross neglect in the man- ner of operating its road, yet if a passen- ger, in passing from one train to another, recklessly, and without care, fails to pay heed to timely warnings, and attempts to cross the track in front of an approaching train that he in fact sees approaching, or which he knows to be approaching, in dangerous proximity, and is killed or in- jured, such action is attributable, not to the negligence of the company, but to the reckless negligence of the injured party himself. Baltimore & Ohio R. Co. v. State, 60 Md. 449. In an action against a railway company for so negligently managing and lighting its station that the plaintiff, being a passenger, Was thrown down while on his way to the carriages, the defendant's counsel having rested his defence on the ground that the accident was entirely owing to the want of ordinary care on the part of the plaintiff, and that there was no negligence on the part of the defendant, the judge left it to the jury to say whether the accident occurred from the alleged negligence of thadefendant, or whether it was entirely the plaintiff's owji negl^ence which caused it. There was a verdict for the plaintiff. On a motion for a new trial for misdirection, on the ground that the judge ought to have told the jury that, if the plaintiff contributed, by his own negligence, to the injury, the defend- ant was entitled to the verdict, although it might have been guilty of negligence, it was held that the defendant was not en- titled to a new trial, the issue on which alone it rested its defence having been left to the jury. Martin v. Great Northern Ry. Co., 16 0. B. N. s. 179. A passen- ger travelling by railway, whose train, ii'om which he had alighted at a junction, was shunted to an unusual siding, out of sight from the platform on a dark night, was killed while crossing the main line. It was held that although there was no accommodation by a bridge for the passen- gers, and no servant of the company at hand to direct them, there was no evi- dence of positive negligence on the part of , the company. Falkneru. Great Southern, &c. Ry. Co., 5 Jr. Rep. C. L. 213. In the case of Young w. Old Colony R. Co., 156 Mass. 178; 30 N. E. Rep. 560, it appeared that while at the station, plaintiff attempted to cross the tracks in front of pn approach- ing train, which, it being broad daylight, she saw, and which was so near to her that, when she stumbled and fell on the track, 1348 KAILWAYS AS CARRIERS OP PASSENGERS. [CHAP. XVII. to take a passenger train going west, a freight train coming from that direction, and ringing its bell, ran by the station on the south track, at the rate of eight or ten miles an hour. Just before this train arrived at the station, the plaintiff's intestate started to cross the track to reach the passenger train which had arrived on the north track, had slowed down, and then started up to reach a milk- platform. As she crossed the south track she was struck by the engine of the freight train and killed. It was held that these facts established negligence on the part of the company.^ Although a railway company is not bound to erect a foot-bridge over its line to give passengers access from one platform to the other, and the want of such a bridge will not 'per se make it liable for injuries received by the public on that account, still the abseuca of such a precaution throws a greater onus on the company to provide for the safety of the public.^ A railway company is under no duty, as to its stations or grounds, except as to passengers and those who are there upon business. Thus, the plaintiff, without invitation, and as a mere intruder, entered upon the unenclosed premises of the defendant, upon which was a building of the defendant in a visible state of decay. While there, a sudden storm blew a fragment of the dilapidated building against him, injuring him severely. The building had once been used as a freight-house, but had been long since abandoned as a place of public business, and was not so situated, with reference to any public way, as to endanger travellers thereon. It was held, in an action for dam- ages for the injuries received, that the plaintiff could not recover,' the engine struck her before she could re- on making inquiries respecting the depar- cover herself; that it was due to her failure ture of trains, was directed by a porter of to make inquiiy that she attempted to the defendant to look at a time-table sus- crosB the tracks at all; and that defendant pended on a wall under a portico of the held out no invitation for her to cross station. While there, a plank and a roll there. It was held that she could not of zinc fell through a hole in the roof upon recover; that otlier paasengers had crossed the plaintiff and injured him; at the same the track where she attempted to cross was time a man was seen on the roof of the no exruse for negligence. portico. It was held that there was no 1 Terry v. Jewett, 17 Hun (N. Y.), evidence that would have justified the jury 395; Longmore v. Great Western Ky. Co., in finding that the defendant was guilty of 19 C. B. N. s. 183. negligence, and that a non-suit was proper. 2 Thomson v. North British Ry. Co., i » Lary v. Cleveland, &c. R. Co., 78 Ind. Sc. Sess. Cas. (4th series), 115. See also 323. In another case, Pittsburgh, &c. K. Welfare v. London, &c. Ry. Co., L. R. 4 Co. v. Bingham, 29 Ohio St. 364, the Q. B. 893, where it appeared that plaintiff question was- "Is a railroad company went to the defendant's station for the bound to exercise ordinary care and skill purpose of travelling by its railway, and in the erection, structure, or maintenance SEC. 310 ff.] iPUETHBE AS TO INJURIES AT STATIONS. 1349 So, in an Ohio case,^ it was held that a railway company is not liable for an injury to a person resulting from its failure to exercise ordinary skill and care in the erection or maintenance of its station- house, where, at the time of receiving the injury, such person was at the station-house by mere permission and sufferance, and not for the purpose of transacting any business with the company or its agents, or on any business connected with the operation of the road. Nor is it liable to passengers even for injuries occasioned by its building's or structures being blown down by storms, where it has used that care and skill, in their structure and maintenance, which men of ordinary prudence and skill usually employ ; and it is error in such cases to charge the jury that the company is " bound to guard against all storms which can reasonably be g.nticipated." If the company's employes permit or direct passengers to enter the car at some other place than the platform or place provided for such purpose, it is held to the utmost care in avoiding injuries to the passengers. And it must be determined, in view of all the cir- cumstances of the case, whether the pmploy^, after directing a pas- senger how to enter a car situated at a distance from the platform, had a right to suppose that his' instructions were understood.^ The actual purchase of a ticket on the entering of a car is not always necessary to constitute the relation of passenger, and pjace upon the railroad company that degree of care which a common carrier owes a passenger. That the plaintiff entered the office or waiting-room provided by the company for passengers, and informed the depot or of its station-house or houses, as to persons and, it may be, perils. For similar cases .who enter or are at the same, not on any see Hardcastle v. South Yorkshire Ry. Co., business with the company or its agents, 4 H. & N. 67 ; Sweeney v. Old Colony R. nor on any business connected with the Co., 10 Allen (Mass.), 368 ; Knight v. operation of its road, but are there without Abert, 6 Penn. St.' 472 ; Cauley v. Pitts- objection by the company, and therefore by burgh, &c. R. Co., 95 Penn. St. 398; 40 its mere sufferance or permLssion ? " The Am. Rep. 664 ; Meeks v. Southern, &c. court answered this question in the nega- R. Co., 66 Cal. 513; 38 Am. Rep. 67; tive. In an English case, Hounsell v. MoAlpin v. Powell, 70 N. Y. 126. Smythe, 7 C. B. n. s. 31, the plaintiff ^ Pittsburgh, &e. E. Co. v. Bingham, fell into a quarry, left open and unguarded 29 Ohio St. 364. And it has been held on the unenclosed lands of the defendant, that persons not passengers, congregating over which the public were permitted to at a station, not upon business, in such travel ; it was held that the owner was numbers as to break down the platform, under no legal obligation to fence or guard cannot recover of the company for injuries the excavation, unless it was so near the resulting therefrom. Gillis v. Pennsyl- public road as to render travel thereon rania R. Co., 59 Penn. St. 129. dangerous ; that the person so travelling 2 AUender v. Chicago, &o. R. Co., 43 over such waste lands must take the per- Iowa, 276. mission with its concomitant conditions. 1350 RAILWAYS AS CARRIEES OF PASSENGERS. [CHAP. XVII. ticket agent ol' her desire to become a passenger ; that she, in good faith, placed herself under his direction, and that he directed her as to the manner in which she was to get on a caboose-car, on which she was to take passage, would, in itself, be sufficient to justify the jury in finding that the relation of passenger existed.^ A railway company is liable for injuries resulting to a passenger who, on leav- ing the car at night, attempts, by direction of the brakeman in ' charge of the car, to cross a gully by way of a certain bridge main- tained by another upon the company's grounds, and is injured by a defect in the bridge which could not then be seen.^ But where a passenger was told by a brakeman to change cars at a way-station, and he entered another car, but was told by one of the company's servants that he could not remain inside the car as the train was not ready, and after remaining a short time on the platform of the car he alighted, and while standing on a track near that on which the car was, was injured by another train, it was held that his expulsion from the car was not the proximate cause of the injury.^ In an English case in an action to recover damages for the death of a pas- senger through the negligence of a railway company, it appeared that on the occasion of the casualty the deceased had taken a ticket for a special train at a cheap rate for harvestmen. He was unable to find accommodations in the special train, but remained on the platform until the arrival of the next ordinary train, together with a crowd composed of harvestmen who had also taken tickets for the special train, and of other persons, a large number of whom had entered the station without permission. The company had an extra number of porters at the station ; but in consequence of the great disorderliness of the persons assembled on the platform, and by a sudden and violent rush of the crowd, the deceased was pushed on the line, and was killed by the engine 6f the ordinary train as it approached. At the trial the jury, inter alia, found that the deceased was not entitled to proceed by the ordinary train ; that the accident was occasioned by the rush of the crowd ; that the company had not taken due and reasonable precautions to prevent injuries from the crowding on the platform ; and that, by using due and reasonable precautions, it might have prevented the rush of the crowd. It was 1 Allender v. Chicago, &(!. R. Co., 37 = Chance v. St. Louis, &c. K. Co., 10 Iowa, 264. See nlso Shannon v. Boston, Mo App. 351. &o. R. Co., 78 Me. 60 ; 23 Am. & Eng. R. 3 Henry v. St. Louis, &c. R. Co., 76 Cas. 511. Mo. 288. SEC. 311.J FALSE ANNOUNCEMENT OF ARRIVAL OF TRAINS. 1351 held that even assuming the deceased to have been lawfully on the platform, the defendant was not liable for the accident which occa- sioned his death. 1 But it is held in this country that a railway company is bound to exercise due care in protecting its passengers wMh they are waiting for its trains, and it is liable for the conse- quences of a neglect to properly direct them respecting the mode of entering its cars.^ Sec. 311. False Announcement of Arrival of Trains. — A person who is familiar with the country through which a railway passes, and of the practice of the company to announce stations before they are actually reached, has no right to act upon such announcement against his own knowledge, and leave the train while it is yet in motion, and at a point other than at the station. Thus, the plaintiff's wife was a passenger on the defendant's train from Baltimore to Washington. When near its depot in the latter city, " Washington " was called by some one. She inquired of another passenger if they were in Washington, and was answered in the affirmative. She then prepared to leave the train. The night was dark. The announce- ment of " Washington " was not countermanded. No warning was given to passengers not to leave the train, and several passengers, in fact, left it. The plaintiff's wife lived near the depot, and had frequently been on the defendant's road. She was seen to go out of the car-door, when the train started and moved into the depot. She was afterwards found lying on the track about two squares outside of the depot so much injured that her death ensued in^ about ten days. In an action by the husband for the loss of service, the judge instructed the jury that the passenger had a right to presume that thd train had stopped, and that the cry of " Washington " was made by the agent of the company. That it was the duty of the company to counteract a false proclamation of arrival, and to keep an agent in their reach to advise passengers of the truth or falsehood of a proclamation so made, or else the company would be derelict in its duty and chargeable with the consequences. This ruling- was held to be erroneous, and a new trial was granted.^ But, except in peculiar 1 Cannon v. Midland Great Western ceiyed from a vicious dog which wandered By. Co., L. B. 6 Ir. 199. on the station premises. See also Ham- 2 AUendp.r v. Chicago, &e. E.. Co., 41 mack v. White, 11 0. B. N. s 588 ; Byrne Iowa, 276 ; Bennett «. Railroad Co., 102 v. Boadle, 2 H. & C. 722 ; Scott v. London U. S. 577. See Smith v. Great Western Dock Co., 3 H. & C. 596 ; 34 L. J. Exch. Ry. Co., L. B. 2 C. P. 4, where it was 220. held that the company could not be made ' Pabst v. Baltimore & Ohio R. Co., 2 responsible to a passenger for injuries re- MacArthur (D. C), 42. The company 1352 BAILWAYS AS CAERIEKS OF PASSENGEES. [CHAP. XVII. cases like that just reviewed, a passenger has a right to rely upon the information given by a conductor or brakeman upon a train that the train has reached the station to which he is destined, and if relying upon such information he leaves the train at that place, which proves not to be the station which they informed him it was, the company is liable for all the proximate damages which ensue therefrom. Thus, where both the brakeman and conductor informed a passenger that the next station was her destination, when it was not, and she left the train at that place, and took a severe cold from unavoidable exposure, it was held that the company was liable.^ So where a passenger, on alighting from a train, vi^as directed by a brakeman to cross a bridge erected upon the defendant's land, but which was erected by third persons, and in doing so was injured, it was held that the company was liable.^ So where a passenger was told by cannot be held guilty of negligence merely because the conductor announced the name of the station about to be reached before the train has actually stopped. Pennsyl- vania R. Co. V. Aspell, 23 Penn. St. 147 ; 62 Am. Deo. 323. 1 Pennsylvania Co. v. Hoagland, 78 Ind. 203 ; Columbus, &c, E. Co. v. Farrell, 31 Ind. 408. See also Edgar v. Northern ll. Co., 11 Ont. App. 452; 16 Am. & Eng. R. Cas. 342. In St. Louis, &c. R. Co. V. Cantrell, 87 Ark. 519, 40 Am. Rep. 105, a passenger was i)roused at ten o'clock at night by the conductor, and informed that his station was reached, and told by him and the brakeman to hurry and get off. The train was moving very slowly and he stepped off, and as it had overshot the platform, he fell and was injured. It was held that an action was maintainable therefor. Harrison, J., said : " It was clearly the duty of those in charge of the defendant's train upon its arrival at Knoble to stop the same opposite the platform, that the plaintiff might get off. On the other hand, it may as a gen- eral proposition be said that it is impru- dent, and a want of proper care to alight from a train while it is in motion ; but whether it was so in a particular case must depend upon the circumstances under which the attempt was made. Crissey v. Passenger R. Co., 75 Penn. St. 83. It would not be so if tlie train was moving so slowly that no damage could be reason- ably apprehended. But though in fact it may be hazardous, a passenger who does so at the instance or direction of the con- ductor or other employe in the manage- ment of the train, on whose opinion or judgment in the matter he has the right to rely, and where the risk or danger was not apparent, cannot be chargeable with negli- gence. Filer v. New York Central B. Co., 49 N. Y. 47 ; 10 Am. Rep. 327 ; Lambert V. North Car. E. Co., 66 N. C. 499 ; 8 Am. Rep. 508. It would seem that the train, when the plaintiff attempted to jump upon the platform, was moving very slowly, as the conductor testified that after he fell it moved only fifteen or twenty feet before it stopped ; and that the direct or immediate cause of the accident was that it had too far passed the platform when he leaped from the car for him to reach it. There was no evidence that he knew that there was any risk or hazard in the attempt to get off, or of any want of care in him, or of any negligence on his part which con- tributed to the accident ; but it was proved that he was told by the conductor and brakeman ' to hurry and get off, the latter telling him also that they were in a hurry, and that he was urged by their im- patience to make the attempt.' We can see no objection to any of the instructions the court gave the juiy. In relation to the question of negligence they are in strict accordance with the views above expressed." 2 Chance v. St. Louis, &c. R. Co., 10 Mo. App. 851. SEC. 312.] OVERSHOOTING STATIONS. 1353 the conductor that a train would stop at a water-station, and as soon as the train stopped he attempted to step off, and the train started with a jerk, and he was injured, it was held that although if he had kept his seat he would not have been injured, the company was liable.^ For, generally speaking, a passenger has a right to rely upon information derived from the servants of the company occupying a position which apparently clothes them with authority and knowl- edge in reference to a particular matter. Thus, railway passengers have a right to rely, until differently informed, upon information given by a ticket-agent in answer to an inquiry relative to the stoppage of a certain train at a particular station, and if a passenger does not disregard reasonable means of information, and relying upon the information so received, gets upon the train in' question which does not stop at the station to which he is destined, the company is liable for the damages arising from its failure to take him to his destination, as agreed through its ticket-ageut.^ But the mere circumstance that information is given by an employd'of the company is not sufficient ; the employ^ at the time must apparently at least be in a position to warrant the passenger in relying upon it as authoritative. The company is therefore not liable for the false announcement of a station by a person not in its employ.^ Sec. 312. Overshooting Stations. — It is a part of the company's undertaking to carry safely that the train shall stop at the passen- ger's destination and at a point where thdre are proper facilities for enabling him to leave the train in safety. It has been seen that the company is responsible for all injuries sustained by its passengers by reason of insufficient or improperly maintained station facilities ; it is equally responsible if, having provided these facilities, it does not stops its trains so that they are available.* If then the train overshoots 1 Wood V. Lake Shore, &c. E. Co., 49 fault on his part alights, he is entitled to Mich. 370. recover damages for the inconvenience 2 Lake Shore, &c. R. Co. v. Pierce, 47 and annoyance in having to walk to the . Mich. 277 ; 3 Am. & Eng. R. Gas. 340 ; station, and for all the injuries sustained post, § 349. But it is the duty of the pas- as a proximate consequence of the oom- senger to inform himself before starting as pany's wrongful act. International, &c. to whether the train on which he proposes R. Co. o. Terry, 62 Tex. 380 ; Mobile, &c. to take passage will stop at his destina- R. Co. v. McArthur, 43 Miss. 180 ; IIU- tion. Piatt V. Chicago, &g. E. Co., 63 nois, &c. R. Co. v. Chambers, 71 III. 519 ; Wis. 511; 21 Am. & Eng. R. Cas. 319. Illinois, &c. E. Co. v. Able, 59 111. 131 ; ' Columbus, &o. R. Co. v. Farrell, 31 East Tennessee, &o. E. Co. v. Lockhart, Ind. 408. 79 Ala. 315; Memphis, &o. K. Co. v. * Where the train overshoots or stops Whitfield, 44 Miss. 466. And where the short of the station, and a passenger without passenger is conveyed past his station and VOL, II. — 35 1354 RAILWAYS AS CABEIERS OF PASSENGEE8. [CHAP. XVII. or stops short of the platform at an unusual place, the company is bound to assist the passengers to alight, and in any event, in such a case it would be its duty either to back the train to the station, or to notify the passengers where and how to alight, and to warn them of any dangers incident to alighting at that point ; ^ and if, through then compelled to get off, the jury have a right to allow exemplary damages in addi- tion to compensation for the injury sus- tained. New Orleans, &c. E. Co. v. Hurst, S6 Miss. 661 ; Alabama, &c. B, Co. V. Sellers, 93 Ala. 9 ; 9 So. Bep. 375 (in this case a female passenger was com- pelled to leave the train at a point several hundred yards beyond the station ; ex- emplary damages were allowed, and evi- dence that she carried a baby in her arms was admitted in aggravation of the dam- ages) ; Chattanooga, &c. R. Co. v. Liddell, 85 Ga. 482 ; 11 S. E. Rep. 853 ; Georgia, &c. R. Co. li. McCurdy, 45 Ga. 288. In the case of Columbus, &c. E. Co. ». Far- rell, 31 Ind. 408, the train ran beyond the platform where passengers were usually landed, and stopped over a culvert, and the railroad hands, whose duty it was to announce the stations, announced the sta- tion. The plaintiff without fault on his part in getting off from the train (it being so dark that he could nob see where the train was), fell into the culvert and was injured, and it was held that he was en- titled to recover. In East Tenn. &c. E. Co. V. Lockhart, 79 Ala. 315, plaintiff, a young girl of eight years, was put off at a place with which she was not familiar, having been carried one mile' past her destination. Being naturally frightened by her condi- tion and surroundings, she walked to her station very rapidly, and as a consequence of the exertion and excitement was taken sick. It was held that a verdict in her favor should not be disturbed. 1 Memphis, &c, R. Co. v. Whitfield, 44 Miss. 466 ; Railroad Co. u. Johnston, 79 Ala. 436. In Siner v. Great Western Ry. Co., L. R. 3 Exchq. 160, an excursion train in which the plaintiffs (husband and wife) were passengers to Ehye, arrived at Ehye station, and the train being a long one, the carriage in which they were over- shot the platform. It was then daylight. The passengers were not warned to keep their seats, nor was any offer made to baek the train to the platform, nor was it, in fact, ever so backed, nor did it move until it started for Bangor. After waiting a short time, the husband, following the example of other passenger*, alighted, without any request to the company's servants to back the train, or any communication with them. The wife, standing on the iron step of the carriage, took both his liands and jumped down, and in so doing strained her knee. There was a foot-board between the iron step and the ground, which she did not use, but there was no evidence of any carelessness or awkwardness in the manner of descent, except such as might be inferred from the above facts. In an action brought for this injury, it was held that there was no evidence for the jury of negligence in the defendant ; and that the accident was entirely the result of the plaintiffs' own acts. So where that part of a railway train including the carriage in which the plaintiff rode overshot the plat- form in daylight, and a porter called out several times the name of the station, and let out some of the passengers, who were departing from the station, and a reason- able time for backing the train had elapsed, and there was, apparently, no intention to back it, and there was at hand no servant of the company whom the plaintiff could request to have the train backed ; and the plaintiff, though cautiously attempting to alight, fell, and was injured in the attempt, it was held that there was evidence of negligence on the part of the company. Nichols V. Great Southern, &c. Ey. Co., 7 Ir. Rep. C. L. 40 ; Thompson v. Belfast, &c. Ry. Co., 5 Ir. Rep. C. L. 517. In another case a train drew up at a small station with the engine and part of one of the carriages beyond the platform. A passenger in that carriage, having parcels in her hands, opened the door and waited on the iron step some time for assistance ; but, no one coming to assist, she, fearing SBC. 312.] OVEESHOOTING STATIONS. 1355 no fault of the passenger, he is injured by alighting at that point, or in getting from there to the station or highway, the company is that the train would move on, tried to alight by getting on the foot-board, and in so doing fell and injured herself, for which injury she" brought an action against the company. It was held, affirming the deci- sion of the Court of Queen's Bench, that, under the circumstances, there was evi- dence of negligence which should have been left to the jury. Eobson v. North Eastern Ky. Co., 2 Q. B. Biv. 85. Any encouragement given to a passenger to at- tempt to get ofi' a train at a place of danger, and not h stopping-place except for water, resulting in injury to him, cannot be impu- ted to the railway company as in any way its act, and it is not responsible for the same. Illinois Central R. Co. v. Green, 81 111. 19. One who has a railroad ticket and is present to take the train at the ordinary point of departure is a passenger, though he has not entered the cars. In duties towards him directly involving his safety, the company is bound to extraordi- nary diligence, and in those touching his convenience or accommodation, to ordinary diligence. Central E., &c. Co. v. Perry, 58 Ga. 461. The conductors of night trains, when stopping or starting; are bound to look out for the safety of pas- sengers entering or leaving the cars, but they are not required to be on the look- out for passengers getting on from both sides of the train, and are not at fault for not discovering a passenger attempting to get on from the wrong side. Michigan Central R. Co. v. Coleman, 28 Mich. 440. See also Chicago, &c. R. Co. v. BoniSeld, 104 111. 223, doctrine of comparative neg- ligence applied ; Stewart v. International, &e. B. Co., 53 Tex. 289 (sufficiency of petition). In a New York case the plain- tiff's intestate was a passenger on a western bound train for Otisville, of which place he was a resident ; passengers arriving there from the east are compelled to alight upon a platform between the tracks and cross the eastern track, in order to reach the station. PlaintifTs intestate stepped from the smoking-car, at the end nearest the locomotive, upon the platform, and from thence upon the eastern track, when he was struck and killed by a train of coal- cars going east, the engine of which had been switched off. There was no brakemaa on the forward end of the coal-cars, nor was any signal given of their approach. The defendant claimed that the plaintiffs intestate was guilty of contributory negli- gence, as there was no evidence to show that he looked to the west before stepping on the track. It was held that the ques- tion of contributory negligence was, under the circumstances of the case, a question for the jury, and that it was error to direct a non-suit. Green v. Erie R. Co., 11 Hun (N. Y.), 333. The plaintiff was a traveller on the defendant's line by a train which arrived at the station for which the plaintiff was bound, at night. The part of the plat- form at that station at which passengers could alight was of sufficient length for the whole train to have been drawn up along-side of it, but in addition to that part the platform extended some distance, gradually receding from the rails. When the train drew up, the body of it was along- side the platform, but the last carriage, in which plaintiff rode, was opposite the re- ceding part of the platform and about four feet from it. The night was very dark, and the place where the last carriage stopped was not lighted, though the rest of the station was well lighted with gas. There was no express invitation given to the plaintiff by the company's servants to alight, but the train had been brought to a final standstill and did not move on again until it started on its onward journey. No warning was given to the plaintiff that the carriage was not close to the platforpi or that care would be necessary in alight- ing. The plaintiff ojiened the carriage- door, and stepping out, fell into the space between the carriage and the platform, and sustained injuries, for which she brought an action against the company. It was held that there was evidence of negligence on the part of the defendant's servants to go to the jury. Bringing a railroad car- riage to a standstill at a place at which it is unsafe for a, passenger to alight, under circumstances which warrant the passenger in believing that it is intended he shall 1356 BAILWAYS AS CARRIERS OF PASSENGERS. [CHAP. XVII. liable therefore.^ These principles apply as well to the carrying of passengers by freight as by passenger trains, subject only to such modifications as are made necessary by the nature of the business in which freight trains may be engaged. Where a freight train is accustomed to discharge its passengers at some other place than the platform, or where it is impracticable for it to reach the platform with its caboose, or other car in which its passengers are carried, it may require passengers to leave the train at some other appropriate aud convenient place, not connected with the platform. In such au event, however, passengers are entitled to receive such care and attention as may be necessary to enable them properly to reach the station, and this is especially true where the place at which they are discharged is either inappropriate or inconvenient.^ get out, and that he may do so with safety, without any warning of his danger, amounts to negligence on the pai-t of the company, for which, in the absence of contributory negligence on the part of the passenger, an action may be maintained. Cockle v, London, &c. Ey. Co., L. E. 7 C. P. Cas. 321 ; Central E. Co. v. Van Horn, 38 N. J. L. 133. In another case the plain- tiff was set down at . T. after dark on the side of the line opposite to the station and place of egress. The train was detained more than ten minutes at T. , and from its length blocked up the ordinary crossing to the station, which is on the level. The ticket collector stood near the crossing with a light, telling the passengers, as they delivered their tickets, to "pass on." The plaintiff passed down the train to cross behind it, and from the want of light stumbled over some hampers put out of the train and was injured. The practice of passengers had been to cross behind the train, when long, without interference from the railway company. It was held that these facts disclosed evidence for the jury of negligence on the part of the com- pany. Nicholson v. Lancashire, &c. Ey. Co., 3 H. & C. 534. 1 New York, &o. E. Co. i;. Doane, 115 Ind. 440 ; 1 L. R. A. 157 (quoting text) ; "White Water E. Co. r. Butler, 112 Ind; 598 ; Adams v. Missouri Pac. R. Co., 100 Mo. 555 ; Galveston, &c. E. Co. v. Crispi, 73 Tex. 236 ; Winkler v. St. Louis fe. R. Co., 2l Mo. App. 99. In this last case -a. passenger, through no fault of his own, was carried some distance beyond his station, on a dark night, and told to alight. In going back to the station he was injured by falling through a trestle. The court held that the company was liable ; the injury was not a remote but a proximate consequence of the company's wrong-doing. See also, as to the rule of the text, Woolery v. Louisville, &c. E. Co., 107 Ind. 381. On the anival of a train at the railway terminus, there not being room for all the carnages to be drawn up to the platfoi-m, some of the pas- sengers were required io alight upon the line beyond it, the depth from the car- riage to the ground being about three feet. In so alighting, a lady, instead of availing herself of the two steps, with the assistance of a gentleman, jumped from the first step to the ground and sustained a spinal injury from the concussion. The jury having found that the company was guilty of negligence in not providing reasonable means for alighting, and that the lady had not by any misconduct on her part con- tributed to the injury, and having awarded her £500, the court held that there was evidence to warrant their finding, and de- clined to interfere with the amount of damages. Toy v. London, &c. R. Co., 18 C. B. N. 8. 225. 2 New York, &o. R. Co. v. Doane, 115 440 ; Woolery v. Louisville. &c. R. Co., 107 Ind. 381 ; Alabama, &c. E. Co. v. Sellers, 98 Ala. 9 ; 9 So. Eep. 375. SEC. 312.] OVEESHOOTING STATIONS. 1357 In' an English case, where an action was brought by a widow to recover compensation for the death of her husband caused by the negligence of the defendant, the same rules have been applied. The facts of the case were that one of defendant's trains drew up at the Highbury station, — the last carriage, in which deceased was sitting, being in a tunnel, which terminated at the station and not at the platform. The name of the station was called out by a porter, and the deceased immediately got out and fell on the rails and was killed. The jury expressed a strong opinion that, the train having stopped, and the name of the station having been called out, the passengers had a right to presume that they might gef out. Black- burn, J., however, non-suited the plaintiff, with leave to the plaintiff to enter a verdict for £1,200. Upon motion, the Court of Queen's Bench held that while the calling out of the name of the station did not necessarily entitle the passengers to get out, yet that under all ■the circumstances of the case, the case should not have been with- drawn from the consideration of the jury, there being some evidence of negligence.^ The result of these cases, as bearing upon the question of the lia- bility of railway companies for accidents occurring at stations in consequence of the drawing up of a train in such a way as to lead passengers to suppose that they are invited by the railway company's servants to alight, seems to be this, that there must he sufficient evi- dence to induce a reasonable man to believe that the train is actually at the alighting platform and that the passengers are invited to alight ; and at the same time there must be the exercise of siuch care upon tJie part of the passenger as will free him from the imputation of having con- tributed to the accident of which he complains? In one case, altliough 1 Bridges v. North London Ry. Co., 7 man v. London, &c. Ry. Co., 22 L. T. Eng. & Ir. App. Cas. 213: L. R. 5 C. P. N. s. 712. In the case, of Praeger v. 459, n. ^Seealso Petty ». Great Western Ry. Bristol, &c. Ry. Co., 23 L. T. N. s. 366, 24 Co., L. R. 5 C. P. 461, n. Other cases id. 105, it appeared that the plaintiff had have come before the court since this one been travelling as a second-class passenger in the Queen's Bench. See also Siner v. from Clevedon to Bristol hy the defen- Great Western Ry. Co., L. R. 4 Exch. dants' line of railway, and occupied the 117. last compartment of the hindmost carriage * St. Louis, &c. R. Co. V. Cantrell, 37 of the train, which consisted of an engine Ark. 619 ; 40 Am. Rep. 105 ; Com. v. and tender and two composite carriages. Boston, &c. R. Co., 129 Mass. 600 ; 37 The journey from Clevedon is performed Am. Rep. 382 ; Smith v. Georgia Pac. on a branch line as far as Yatton, at R. Co., 88 Ala. 538 ; Crafter v. Metro- which place there are separate platforms politan Ry.,'L. R. 1 C. P. 300; 35 L. for the branch and main lines. The J. C. P. 1-32. See also Blackman ». Lon- branch platfoi-m at Yatton is about 130 don, &c. Ry. Co., 14 W. R. 769 ; Leish- feet long, and for about 100 feet of its 1S58 RAILWAYS AS CABEIEES OF PASSENGERS. [CHAP. XVU. the train had drawn up at the platform, the name .of the station had not been called out, and some of the judges of the Court of Common length, from the inner, or Yatton end of it, runs quite straight or parallel with the branch-line rails, and for that distance the space between it and the carriages is about ten inches wide. The further or outer end of the platfonn is, for the purposes of the traffic, curved or bevelled off from the line of rails, so that at that part of it the space between it and the carriages is about eighteen inches wide. There is, however, attached to each carriage, imme- diately outside tHe door, an ii'ou step, ten inches wide, so that the space between the platform and the carriages is -thereby bridged over by the step, and reduced thereby to the width of eight inches. Upon the day in question it appeared that ' the train in which the plaintiff was trav- elling drew up at the branch platform, and was stopped about twenty feet short of the extreme end of it, where stationary buffers, or " dead ends," are fixed ; and the com- partment of the carriage in which the plaintiff was sitting was, when the train stopped, immediately opposite the curved or bevelled-otf part of the platform de- scribed a^ove. The name of the station was called out, and the door of the car- riage was opened, and several of the plain- tiff's fellow-passengers got out and alighted in safety on the platform. The plaintiff then proceeded to follow them, and stepped out of the carriage, as he had always be- fore been in the habit of doing, without nsing the iron step, expecting to step as usual upon the platform, instead of which he stepped into the eighteen-inch vacant .space between the carriage and the plat- form, and falling through received the injury for which he sought compensation in the action alluded to. It was admitted , that he had often travelled by the same line before, and knew the nature of the plat- form, but he had never before travelled in the last compartment of the hindmost carriage, and was not aware that he had stopped opposite the curved part of the platform. There were paraffine-oil lamps on the platform, and one in the carriage itself, but it did not appear that the lights, whatever and wherever they were, were such as to enable a passenger clearly to distinguish the vacant space from the solid platform. Negligence was charged by the plaintiff and denied by the defend- ants, and the defendants charged the plain- tiff with contributory negligence. The jury found for the plaintiff for £1,600 damages. Upon a rule it was held that there was no evidence to go to the jury of negligence upon the part of the defendants. This decision was reversed in the Court of Exchequer Chambers where it was held that there was evidence of the negligence of the defendants to go to the jury, inas- much as there was a clear invitation to the plaintiff to alight and no warning given, although in consequence of the insufficien<^ of light the danger was not apparent. In Comman v. Eastern Counties Ky. Co., i H. & N. 781, the defendants had on their platform standing against a pillar which passengers passed in going to and from the trains, a portable weighing-machine which was used for weighing passengers' luggage, and the foot of which projected about six inches above the level of the platfonn. It was unfenced, and had stood in the same position without any accident having oc- curred to persons passing it for about five years. The plaintiff, being at the station on Christmas Day inquiring for a parcel, was driven by the crowd again.st the ma- chine, caught his foot in it, and fell over it. It was held that there was no evidence of negligence to go to the jury, the ma- chine being in a situation in which it might have been seen, and the accident not being shown to be one which could have been reasonably anticipated. Bkam- WELL, B., said : " In such a case it is always a question whether the mischief could have been reasonably foreseen. Nothing is so easy as being wise after the event. Here the evidence was that the company might reasonably have antici- pated that no mischief could occur, since no mischief had resulted from keeping the machine in the position in which it stood for so long a period. " See also per Erlb, C. J., in Marfell v. South Wales Ry. Co,, 8 C. B. N. s. 525, 534 ; Rigg v. Manches- ter, &o. By. Co., 14 W. R. 834. See also Martin v. Great Northern Ry. Co., SEC. 312.] OVERSHOOTING STATIONS. 1359 Pleas held that without some such announcement a passenger was not justified in getting out of the carriage; and that, having got out at a place where the platform was some feet from the carriage, and having fallen and been injured, she had been guilty of contributory negligence, which relieved the railway company from the respon- sibility of the acts of its servant the engine-driver.^ In another case, however, where a long train of the defendant company was stopped at a platform, so that part of it was along-side the parapet of a bridge ; and in the dark, the plaintiff, after the train had Stopped, - aBd the defendants' servants had called out the name of the station, stepped upon the parapet, believing it was the platform, and feU over, — it was held by the same court that, in an action brought to recover damages for the injuries sustained by the fall, the judge was right in leaving it to the jury to determine whether the circumstances amounted to an invitation to the plaintiff to alight; and further, that there was evide&ce of negligence on the defendants' part to justify the verdict which the jury found for the plaintiff.^ It is a part of a conipany's duty to announce a station which the train is approaching in order that passengers, whose destination it is, may prepare to alight,^ and the company cannot be held liable to a passenger injured by leaving a moving train on the ground that 16 C. B. 179 ; and Leishman v. London, pany does not intend that he shall leave &e. Ey. Co., 19 W. R. 106. its pi-emises at any other point ; and if 1 Cookie V. Loudon, &o. Ey. Co., 5 L. he fails to heed this warning, and is in- R. C. P. 457 ; 39 L. J. C. P. 226. In jured, he cannot visit the penalty upon Forsyth 1). Boston, &c. E. Co., 103 Mass. the company. 510, a passenger alighted from the train, ^ Whittaker v. Manchester, &c. Ey. on a dark night, at a station of the Co. , 22 L. T. N. s. 545. defendant, on one of two platforms ' Dawson v. Louisville, &c. E. Co. extending along each side of the track (Ky.), 11 Am. & Eug. E. Cas. 134 ; Smith to a highway which, as the plaintiff knew, v. Georgia Pao. E. Co., 88 Ala. 538. In cfossed the railroad, and having a step Eose v. Northeastern Ey. Co., 2 Exch. at the end next to the highway. Instead Div. 248, a train drew up at a station of keeping on the platform he voluntarily with two of the carriages beyond the plat- stepped from it to cross the track to the form. The employes of the company highway, and in doing so stepped into a called out to the passengers to keep their cavity dug across the track for a cattle- seats, but were not heard by the plaintiff guard, and was injured. The court held and other passengers in one of these ear- that the company was not liable, as he riages. After waiting some little time, was not at the time in the exercise of due and the train not having put back, the care. A passenger has no business to plaintiff got out, and in so doing fell and leave the platform and cross a railway was injured ; for which injury she brought track at a point where the company has an action against the company. It was made no provision for such a crossing, held, reversing the decision of the Ex- The very circumstance that the platform chequer Division, that there was evidence leads to a place of exit from the station, is of negligence on the part of defendant to notice to a passenger that the railway com- go to the jury. 1360 RAILWAYS AS CABEIEES OF PASSENGERS. [CHAP. XVU. such an announcement amounts to an invitation to alight. It is the stopping of the train after the announcement is made that consti- tutes the implied invitation.^ If the stoppage is only teinporary and not intended as an opportunity for passengers to leave the train, proper notice and warning must be given. For where a station is announced and the train stopped, a passenger has a right, in the absence of any warning to the contrary, to understand that he may ■safely alight ; and if by reason of the train having stopped at a place other than the station, without fault on his part, he is injured, the company is responsible.^ Where the passenger is not aware that he has been carried past his station, his failure to demand that the train be backed so as to allow him to alight safely cannot be considered as a waiver on his part of the company's obligation, though the contrary is true where he is fully aware of the circum- stances.^ But it, seems that the latter part of this rule must be modified in particular cases. There may be instances in which the timidity of a female or infant passenger would restrain them from making such a demand, particularly where the conductor (as he frequently does) wears a formidable appearance, and under such circunistances, it seems that a failure to demand that the train be moved ought not to operate as a waiver of the passenger's right to a safe and convenient place to alight. The compulsion used in requir- ing a passenger to alight at an improper place need not be actual force ; if the alternative of getting off or of being carried to the next station is presented, it amounts to a compulsion, and a passenger's obedience does not constitute a waiver under such conditions.* 1 WiLLES, J., in Bridges ». Uorth driver intended to back the train. It was London Ry. Co., L. R. 6 Q. B. 377, 383 ; held that there was evidence from which a Smith V. Georgia Pac. R. Co., 88 Ala. jury jnight reasonably find negligence on 538. the part of the company's servants, and no ^ Thus, in an English case, on the evidence of contributory negligence on the approach to a station, the porter called out part of the plaintiff. Weller v. London, the name of the station, and the train was &c. Ry. Co., L. R. 9 C. P. Cas. 126 ; s. P. brought to a standstill. Hearing carriage- in Cockle v. London, &c. Ry. Co. , L. ft. 7 doors opening and shutting, and seeing a C. P. Cas. 321 ; Central R. Co. v. Van person alight from the next carriage, the Horn, 38 N. J. L. 133. plaintiff, who was a season-ticket holder, ' Winkler o. St. Louis, &c. K. Co., 21 and accustomed to stop there, stepped out Mo. App. 99 (opinion by Thompson, J.), of a carriage ; but the carriage in which he See also Blodgett v. Bartlett, 60 Ga. 353. was overshot the platform, and he fell on * Alabama, &c. R. Co. v. Sellers, 93 to the embankment and was hurt. It was Ala. 9 ; 9 So. Rep. 375; Galveston, &c. night, and there was no light near the R. Co. v. Crispi, 73 Tex. 236 ; Georgia, spot, and no caution was given, nor any- &c. R. Co. v. Eskew, 86 Ga. 641 ; 12 S. E. thing done to intimate that the stoppage Rep. 1061. was a temporary one only, or that the SEC. 312.] OVEKSHOOTING STATIONS. 1361 What has been said applies only to cases in which the passenger is wrongfully carried beyond his station or his train stops short of it. If when the train stops at his station, he has abundant oppor- tunity to leave the train, but neglects to do so, and after the train has started he is permitted, at his own request, to get off at an unusual point, he cannot hold the company responsible for injuries which result from his getting off there.^ So, also, he cannot recover if he voluntarily leaves the train before it has reached the station, unless his action was induced by the company's agents or servants.^ In every case the passenger is under obligation to use ordinary care to make the injury to himself as light as possible, and to avert, as far as possible, the harmful effect of the company's act.^ He cannot, therefore, recover for injuries to which his own negligence contributed as a proximate cause.* Where a proper landing-place is provided, and the passenger knows or has the means of ascertaining its locality, he should make his exit at the place so provided ; and if, in attempting to alight elsewhere, he unnecessarily and negligently exposes himself to danger, and is thereby injured, his injury is the result of his own act, and he cannot recover therefor against the railway company.^ 1 Wilson V. New Orleans, &o. K. Co. , at a station, but somewhat away from its 68 Miss. 9 ; 8 So. Eep. 330. In this case usual place of stopping, and where there passenger was asleep when his station was was not good ground for getting off, and a reached and so failed to get off there. Soon passenger, thinking the train would be after the train started the conductor moved up to the usual place, failed to get awakened him telling him he wa^ still near off, as he had intended, and after the train the station, and rather than be carried to had left the station and was fairly on its the next station, he requested conductor way to its next stopping-place, the passen- to stop the train and allow him to get off, ger himself seized the bell-rope, rang the which was done. In returning to the engine-bell, and took his position on the station he had to cross a long bridge, and lower step of the platform to get off, and when partly over it, he saw an approaching the engineer having answered the bell, as freight train, and by running rapidly the cars were coming to a stop, but before barely escaped being injured. He carried his they were stopped, the passenger, deeming child in his arms, and being feeble, the the motion slow enough for safety, under- exertion and the excitement caused him to took to step off, but just as {le was step- sustain injury to his health. The court ping, he was by a sudden jerk of the cars held that he could not recover since his thrown down, and his arm crushed by one injuries were the consequence of his own of the wheels of the car passing over it, — negligence. it was held that the conduct of the passen- ^ See Secor v, Toledo, &c. R. Co., 10 ger in ringing the bell, taking his position Fed. Kep. 15. on the step, and undertaking to step off " Gulf, &c. R. Co. V. Head (Tex. 1890), while the cars were still in motion, was a 15 S. W. Rep. 504 ; Georgia, &c. E. Co. want of ordinary care, and showed gross V. Eskew, 86 Ga. 641 ; Texas, &c. R. Co. negligence on his part. Blodgett v. Bart- V. Cole, 66 Tex. 562. left, 50 Ga. 353; * International, &c. R. Co. i;. Folliard, 6 Chicago, &d. R. Co. v. Dingman, 1 66 Tex. 603. Where a train waa stopped. Bradw. (111. App.) 162. A complaint for 1362 RAILWAYS AS CAERIERS OF PASSENGEES. [CHAP. XVII. Ordinarily, it is no part of the company's duty to awaken a sleep- ing passenger, nor is it bound by the conductor's promise to do so.* The rule, however, is different in the case of sleeping-car companies. These latter invite their passengers to sleep, and afford special accom- modations therefor ; it is, therefore, a part of their undertaking that the passenger shall be awakened at the proper time, and sufficiently early to enable him to be ready to leave the train by the time his station is reached.* Where a company has discharged its duty in providing proper platforms and station facilities, and the train has been stopped, so that they are available to the passenger, it is not bound to go further personal injury to a passenger, which does not allege geaerally that he was without fault, and alleges the facts to be that at the station the train slackened speed so that the plaintiff ooald have alighted without dasger, if there had been a plat- form ; that it was dark, windy, and rain- ing, and the plaintiff had neyer been at the station ; that the conductor informed him of arrival at the place and directed him to alight, and lelying entirely on his order, lie stepped off as directed, and by reason of there being no platform, as he supposed there was, he fell under the cars and was injured, is bad on demurrer, be- cause it does not show that plaintiff was free from contributory negligence. Cincin- nati, &c. R. Co. V. Peters, 80 Ind. 168. It is doubtful however whether this case state.i the general doctrine. See post, section on " Presumptions " and " Burden op Proof." Where a train has stopped, and a pas- senger, on stepping from the lowest step of the platform of the cars to the ground, fractures her knee-cap, without atiy appar- rent external cause, no presumption of negligence is raised. Delaware, &c. B. Co. v. Napheys, 90 Penn. St. 135. In Lewis v. London, &c. Ry. Co., L. E. 9 Q. B. 66, th« plaintiff was a passenger on the defen- dant's railway from A. to B. ; while the train was passing through B. station the company's employes called out the name of the station, and shortly afterwards the train stopped. The carriage in which the plaintiff travelled stopped a little way beyond the platform, and several carriages and the engine, which were in front of that carriage, stopped at some distance from the platform. The plaintiff, who was well acquainted with the station, in alighting from the carriage was thrown down and injured in consequence of the train being backed into the station for the purpose of bringing the carriages along-side the plat- form. A very short interval elap.sed be- tween the time that the train stopped and the time it was backed into the station. It was held that there was no evidence of negligence on the part of the company to render it liable. In a New York case it appeared that the plaintiff, an infant twelve years of age, in the care of her parents, was a paying pas- senger upon defendant's cars. As the train approached the station where she was to alight, the conductor called out the name of the station and the cars stopped. It was evening and dark. Plaintiff and her parents arose to leave, but before they got out of the car the train started and moved slowly by the station. They, know- ing the train was in motion, passed out on to the platfonn of the car, and while the train was still moving, and after it had passed the jjlatform of the station, plain- tiff's father took her under his arm, stepped from the car, fell, and she was injured. It was held that plaintiff, as matter of law, was chargeable with contributory negli- gence. Morrison v. Erie E. Co., 66 N. Y. 302 ; Ohio, &c. E. Co. v. Stratton, 78 HI. 88. > Sevier v. Vicksburg R. Co., 61 Miss. 8 ; Nunn v. Georgia R. Co., 71 Ga. 710 ; Nichols ». Chicago, &c. R. Co. (Mich.), 61 N. W. Rep. 364. 2 Pullman Palace Car Co. o. Smith, 79 Tex. 468; 14 S. W. Rep. 993 ; Hutchinson on Carr. (2d ed.), § 617 k. SEC. 313.] DELAY IN RUNNING TEAINS. 1368 aad assist passengers in alighting.^ But there may be an exception to this rule where the company has accepted as a passenger a feeble or infirm person who is unable to get on or off the train without assistance. In accepting such a passenger with a knowledge of his infirmity, the company impliedly agrees to render such assistance as he may reasonably require.^ Sec. 313. Liability of Railroad Corporations for Delay in running Trains. — A railroad company is held chargeable with damages far delay in the running of its trains ajccording to schedule time, and any person sustaining damage from a failure on its part to run its trains upon such time is entitled to recover the same.^ By issuing 1 Raben v. Central Iowa R. Co., 73 Iowa, 581 ; 74 Iowa, 732 ; Laflin v. Buf- falo, &c. R. Co., 106 N. Y. 136. 2 Hutchinson on Carriers (2d ed,), § 670 ; St. Louis, &c. R. Co. v. Finley, 79 Tex. 85 ; 15 S. W. Re.p. 266 ; Foss v. Kail- road Co. (N. H.), 21 Atl. Rep. 222 ; Sheri- dan V. Brooklyn City R. Co., 36 N. Y. 39; Louisville, &c. R. Co. v. Crunk, 119 Ind. 542. Compare, however, the language of Shackleford, C. J., in the. case of New Orleans, &c. R. Co. v. Statham, 42 Miss. 613: "Railroad cars are not travelling hospitals, nor their employes nurses. Sick persons have the right to enter the cars of a railroad company ; as a common carrier of passengers it cannot prevent their enter- ing its cars. If they are incapable of taking care of themselves, they should have attendants along to care for them, or to Tender them such assistance as they may require in the cars, and to assist them from the cars at the point of their destination. It is not the duty of con- ductors to see to the debarkation of passen- gers. They should have the stations announced ; they should stop the trains sufficiently long for the passengers at each station to get off. When this is done, their duty to the passengers is performed. All assistance that conductors may extend to ladies without escorts or with children, or to persons who are sick and ask his assistance in getting on and oif trains, is purely a matter of conrtes;y, and not at all incumbent upon him in the line of his public duty." Quoted with approval in Nunn V. Georgia R. Co., 71 Ga. 713-714. See also Southern R. Co. v. Kendricks, 40 Miss. 374 ; Louisville, &c. R. Co. o. Flem- ing, 14 Lea (Tenn. ), 128. But Mr. Hutch- inson thinks that this view, as expressed in the Mississippi case, cannot be main- tained. Hutch, on Carriers (2d ed. ), § t)70. 3 Sears v. Eastern R. Co., 14 Allen (Mass.), 433 ; 92 Am. Dec. 780. See also Wilseyw. Louisville, &c. R. Co., 83 Ky. - 511; 26 Am. & Eng. R. Cas. 258 ; Hutch- inson on CaiTiers (2d ed.), §§ 603, 605. In England the same doctrine is held ; thus, in Buckmaster s>. The Great East- em Ry. Co., 23 Law J. Rep. N. s. Exch. 471, an action was brought for damages sustained by the plaintiff by reason of ' the company not starting a train as advertised in their time-bills, in which the plaintiff obtained a verdict. Baron Maktin said that, " It was mere nonsense for companies to say, as in effect, the company in that case had said, ' We will be guilty of any negligence we think fit, and we will not be responsible.' And with respect to the notice in this case the learned judge of the Marylebone county court thus concludes : ' I am of opinion that it is vUra vires so far as it professes to attach to the right of travel- ling on their own line the condition that the company will not be responsible for any shortcomings of their servants not amounting to wilful misconduct, what- ever that term may mean.' In this view as to the invalidity of the stipulation in question I fully concur. It seems to me to be a monstrous proposition that the railway companies, who are bound, by their special Acts and the Failway Clauses Con- solidation Act, 1845, § 86, to carry passen- 1364 RAILWAYS AS CAEEIERS OF PASSENGERS. [OHAP. XVII. its time-tables it is treated as contracting with its passengers that its trains shall leave and arrive at its stations at the time named therein, and failing to perform in this respect it is chargeable with the damages that ensue in consequence thereof.^ It may change its schedule time, but, as to the holders of season-tickets, it is bound to give reasonable notice of such change, and a mere advertisement of such change in public journals, or posting notice thereof in its S'tations or cars, is held not sufficient to relieve it from liability. The company is liable even though the delay resulted from the wilful acts of its servants.^ The issue of a time-table, indicating the time of the arrival and departure of trains, is held to amount to an express promise to run to the places and at the times named, and nothing but accidents resulting from causes which reasonable care could not have provided against, will excuse liability.^ gers at rates fixed withiu eertain limits, should be able to affix to their contracts with the passengers a stipulation which, if valid, would deprive the passengers of their common-law right to the perform- ance with due diligence of the company's contract with them. There is one other remark I would wish to add, namely, that the restrictions as to the company's liabil- ity for not corresponding with other trains contained in the notice and regulation in question only extends to cases where their trains fail to correspond with trains of other companies, and not with other trains of their own, which is the present case. Having stated my opinion as to the liabil- ity qf the company at common law, and of the invalidity of the above notice and regu- lation so far as it restricts such liability in the present case, it still remains for me to consider the last point raised by the defendants, namely; Whether, if the notice and regulation were valid, and the plain- tiff was bound by it to show wilful mis- conduct on the part, of the defendants' servants, he has shown it in the present case ; in other words, whether the absence of the porters through their own fault, or by the orders of superior servants /of the company, was, under all the circumstances of the present case, in point of law, ' wil- ful misconduct,' and I think with some doubt that it ought to be so held; and on this ptiint I wish to refer once more to the judgment of the learned judge of the Marylebone county court in Turner v. The Great Western Railway Company, and the authorities therein cited as to the legal interpretation of the words ' wilful misconduct.' The only case that I am aware of that militates against my view is that of Russell v. The Great Western E. Co., before the learned jrtdge of tjie Bath county court, — to whom I have already referred, — in which he held that the altered notice or regulation was valid and operative to restrict the defendants' liability to cases of proved wilful miscon- duct on the part of their servants, but from what I have said it will be seen that I cannot concur in his view. Upon the whole I am in favor of the plaintiff on all the points of law and facts involved in this case, and a verdict will, therefore, be entered for the plaintiff for the amount claimed, with costs, and with liberty to the defendants to appeal within one month." 1 Gordon v. Manchester, &e. E. Co., 52 N. H. 596 ; 13 Am. Rep. 97. 2 Sears v. Eastern R. Co., 14 Allen (Mass.), 433 ; 92 Am. Dec. 780. 8 Weed V. Panama R. Co., 17 N. Y. 362 ; 72 Am. Dec. 474 ; Denton v. Great 2s^orthern Ry. Co., 5 El. & Bl. 860. In Turner ■». Great Western Ry. Co., de- cided in the Marylebone county court (England), in May, 1874, Whkblee, J., said: "The question of reasonable time is no longer" left at large, but is, in fact, fixed by the companies themselves, sUb- SEC. 314.] DUTY TO PROTECT PASSENGERS, ETC. 1365 Sec. 314. Duty to Protect Passengers from Assault by Strangers. — Not only is a railroad company or other carrier of passengers ject, of course, to accidents which reason- able care could not provide against. In the present case it is quite clear that the absence of porters at the Keading station, which reasonable care might (as far as appears) have prevented, occasioned the detention of the plaintiff at Twyford, and as he was able to procure a con- veyance by which he. got to Henley, sub- stantially half an hour sooner than the railway company were prepared to convey him by the next train, I think that he was justified in hiring it, and that (sub- ject to the next question) he is entitled to recover its cost against the defendants. The next question which remains for me to consider is, whether the notice and regulation contained in the defendants' tables deprive the plaintiff of his right to recover against the defendants. Now, this notice and regulation, as altered, came before the learned judge of the Marylebone county court in the case I have already referred to, and he there commented upon it so fully and so ably that I cannot do better than quote his remarks. Referring to the notice and regulation which came before him in Mr. Forsyth's case, he ob- serves : ' The company's notice of August commenced with these words, " Eveiy attention will be paid to insure punctuality as far as practicable." This really is all that the law requires. "But," continued the notice, " the directors do hot undertake that the trains shall arrive at the time specified in the time-table." Here I may remark that, in'espective of any notification by the company, the law does not imply any sneh undertaking, its requisitions be- ing simply that there shall be no failure of punctuality for want of reasonable care and diligence. The notice then adds, "Nor will the directors be accountable for any loss, inconvenience, or injury which may arise from delay or detention ; " and sub- ject to their paying every reasonable atten- tion they have expressly fixed on, which, if not so fixed, juries may determine. Be- fore the introduction of railways there were frequently coach^proprietors who agreed to perform their promises in so many hours, and, therefore, to use every reasonable means and diligence for that purpose ; and if, by reason of their neglect of such means or want of such diligence, they failed to complete their contracts, there can be no doubt that actions must have lain against them. Of course the condition of the roads, which were not under their control, and many other circumstances, and espe- cially sudden accident's, would have been valid defences to such actions ; and, there- fore, they were often very difficult to try. Moreover, the proprietors seldom, if ever, entei'ed into these special contracts as to time, excepting when there was great com- petition and then they used their best endeavors, as did also their servants (who were often stimulated by a system of pre- miums or fines), to perform these contracts with the greatest exactitude. Actions for the breach of such contracts were conse- quently very rare, and I have not been able to find a report of any case of the kind. In most cases, however, the coach- proprietors merely contracted to convey, and would not be accountable for the conse- quences of any delay or aetention. Since August the notice has been materially changed. The passage about paying every attention to insure punctuality is omitted, and the company expressly promise noth- ing ; but the omission is immaterial, be- cause what they do not promise the law implies against them. The next change is the addition to the stipulation that they will not be responsible for delay, in the words, ' ' unless upon proof that it arose from the wilful misconduct of their ser- vants." Upon the faith of their present notice, the defendants contend in effect that they are unfettered as to times of starting and arrival, notwithstanding their time-tables, in the absence of proof of wilful misconduct on the part of their servants. To such a proposition it is some- what difficult to listen with patience.'" See also Burke v. Great Western E. Co., London Law Jour, for October 24, 1874, in which the court considered the questions involved as to the actual contract of the company and their liability under it. The court said: "The duty is expressly de- clared by sect. 89 of the Railway Clauses 1366 RAILWAYS AS CAERIEES OP PASSENGEKS. [CHAP. XVII. bouBd to exercise proper care to prevent injury to its passengers while upon its premises, in going to or from its trains, but it is also hound to exercise reasonable care and diligence in protecting themfrmi insults or injury from other passengers, while riding thereon, as well as from its own servants. It is not held to the same degree of care in this respect as it is held to in the selection of the agencies of its business, but it is bound to exercise that degree of care that a man of ordinary prudence would exercise under similar circumstances in the conduct of his own business. The mere fact that one passenger is injured by an assault committed by another does not of itself con- stitute even a prima facie cause of action ; but if it is also shown that the person who committed the injury was improperly admitted upon the train, being drunk artd disorderly at the time, or was im- properly permitted to remain there, because of his riotous or improper conduct after he got upon the train, the company is liable for all the consequences.-' Act, 1846 (which, I presume, is incorporated in the Great Western Railway Act ; at all events, so far as the Henley Branch RaE- way) ; but, independently of that clause, I do not think that railway companies would be further liable than any other car- riers of passengers at common law. What, then, is the liability of carriers of passen- gers at common law ? Simply to use all reasonable means to convey passengers to their destinations in the reasonable times which the passengers to a particular place desire, without specifying any time ; and they were only bound to perform their con- tract within a reasonable time, which, as I have already said, was for a jury to determine, regard being had to all the circumstances of the case. Railway com- panies, on the other hand, bave invari- ably fixed their own times of arrival, and thereby fixed what are reasonable times, and if they fail, from want of due diligence, to perform their contracts, I think that they are clearly liable in the same manner as coach-proprietors under similar con- tracts. Saving the absolute control of fheir lines, and their lines being less liable to be affected by the weather than the roads, they have in these respects much less difficulty in performing their express contracts than coach-proprietors. On the other hand, they are open probably to more numerous and serious accidents as to their engines and carriages than the coach-proprietors were as to their coaches and horses. But, however this may be, the effect of weather on the lines, and accidents of many kinds,, mil doubtless constitute valid defences to actions brought against them, as they did against actions brought against coach-proprietors under similar circumstances." 1 Goddard v. Grand Trunk E. Co., 57 Me. 202 ; 2 Am. Eep. 39 ; New Orleans E. Co. .,. Burke, 63 Miss. 200; 111. Central R. Co. V. Minor (Miss.), 11 So. Rep. 101; Pittsburgh E. Co. v. Pillow, 76 Penn. St. 610; 18 Am. Rep. 424; JVIilwaukee, &c. E. Co. V. Finney, 10 Wis. 388; Moore v. Fitchburg R. Co., 4 Gray (Mass.), 465; Eamsden v. Boston, &c. E. Co., 104 Mass. 117; 6 Am. Eep. 200; Holly v. Atlanta St. R. Co., 61 Ga. 215; 34 Am. Eep. 97; Putnam v. Broadway, &c. E. Co., 55 N. Y. 108; 14 Am. Eep. 190; Weeks v. New York, &c. R. Co., 72 N. Y. 50; 28 Am. Eep. 104; Chicago, &o. R. Co. w. Flexman, 103 111. 546; 8 Am. & Eng. E. Cas. 354; Mnllane v. Wis. Central E. Co., 46 Minn. 474; Shirley v. Billings, 8 Bush (Ky.), 147; 8 Am. Rep. 451; Bryant v. Eich, 105 Mass. 180; 8 Am. Eep. 311; Holmes v. Wakefield, 12 Allen (Mass.), 580; Duggins r. Watson, 16 Ark. 118; Passenger E. Co. V. Young, 31 Ohio St.. 618; 8 Am. Rep, SEC. 314.] DDTr TO PROTECT PASSENGERS, ETC. 1367 The liability of a railroad company to its passengers is predicated upon a different ground from its liability to its own or servants' agents, or others who do not occupy that relation to it. The rule is that where a person or corporation by contract or statute is bound to do certain things, they are absolutely responsible for the manner in which the duty is performed, and cannot excuse themselves from liability because they have committed the duty to others who were believed to be possessed of superior qualifications for performing such duties. A carrier is bound to discharge his legal obligation to the passenger, and if he commits this duty to another, he does it at his peril.' By the sale of a ticket, or the receipt of the price for 78; Baltimore, &q. E. Co. v. BlocUar, 27 Md. 277; Nieto v. Clark, 1 Clififord (U. S.), U5; Flint v. Norwich, &c. Transp. Co., 34 Conn. 554; Seymour v. Greenwood, 7 H. & N. 355; Pennsylvania R. Co. v. Vandlver, 42 Penn. St. 365; Landreaux 0. Bel, 6 ha. o. s. 434; Pittsburgh E. Co. V. Hinds, 53 Penn. St. 512; 91 Am. Dec. 224; Day v. Owen, 5 Mich. 520; Atlantic, &c. R. Co. V. Dunn, 19 Ohio St. 162 ; 2 Am. Rep. 382; Little Miami K, Co. v. Wetmore, 19 Ohio St. 110; 2 Am. Rep. 373; JeffersouviUe K. Co. v. Rogers, 38 Ind. 116; 10 Am. Rep. 103; Craker v. Chicago, &c. R. Co., 36 Wis. 657; 17 Am. Rep. 504 (the famous kissing case); Cham- berlain y. Chandler, 4 Mason (U. S.), 242; Stephen w. Smith, 29 Vt. 190; Railroad Co. I'. Anthony, 43 Ind. 183 ; Bayley v. Rail- way Co., L. R. 7 C. P. 415; Coleman v. New York, &o. R. Co., 106 Mass. 160 ; Brand V. Railroad Co., 8 Barb. (N. Y. ) 368; Weed V. Panama, R. Co., 17 N. Y. 362; 72 Am. Dec. 474. In the case of Britton v. Atlanta, &o. R. Co., 88 N. C. 536, 43 Am. Rep. 749, 18 Am. & Eng. R. Gas. 391, the plain- tiffs, colored persons, purchased tickets over the defendant's road, upon an excur- sion train, and took seats in a car with white persons. There were separate cars provided for colored people, but they did not know it. The white persons annoyed and insulted them, and they complained to the conductor. He accepted their tickets and said they might sit in that car, but that as it was an excursion train he could not control the conduct of the other pas- sengers, and that they might expect rade treatment. The treatment continuing, similar appeals to the conductor met with a refusal of protection. Subsequently, the white passengers violently ejected the plaintiffs from that car, and they entered one furnished for colored people, but were obliged to stand up for some time. The instructions of the company to condTictora were to advise colored passengers found in cars set apart for white persons to go to the cars provided for colored persons, but if they declined to do so to allow them to remain. It was held that the defendant was liable for the assault. See also Roys- ton V. Illinois Central R. Co., 67 Miss. 376, where a colored passenger was not allowed to recover for an assault, it appearing that he was partly intoxicated and had been acting boisterously, although the assault might not have occurred had the company complied with its statutory duty to supply separate accommodations for its white and colored passengers. 1 Goddard v. Grand Trunk R. Co., 57 Me. 202 ; 2 Am. Rep. 39; Milwaukee R, Co. V. Finney, 10 Wis. 388 ; Moore v. Fitch burg R. Co., 4 Gray (Maiss.), 465; 64 Am. Dec. 83. In one case the conductor and several passengers frightened the plaintiff, a pas- senger, by telling him they were going to rob him and throw him out of the car, so that he jumped from the train and was injured. The company was held liable. Spohn V. Missouri Pao. R. Co., 87 Mo. 74; 26 Am. & Eng. R. Cas. 252. So where a passenger and the conductor conspire to eject a fellow-passenger from the coach, the company is responsible for the injury. Murphy w. Western, &o. R. Co., 23 Fed. Rap. 687; 21 Am. & Eng. R. Cas. 258, 1368 RAILWAYS AS CAEEIEES OF PASSENGERS. [CHAP. XVII. transportation from one point to another, a railway company expressly contracts to carry such person to the point covered by the contract. In addition to that, the law impliedly raises a contract on its part to carry such person safely, so far as human foresight reason- ably exercised can guard against disaster ; to carry him in the usual and ordinary mode incident to such travel; to treat him respectfully, and protect him, so far as reasonable care on its part can do so, from injury from other persons riding by the same conveyance.^ These are among the implied obligations imposed, and they are absolute duties that cannot be shirked or evaded, and for a failure in the observance of which it is liable to the passengers, whether such failure results from its own act or the act of those to whom it has committed the duty.* In a Pennsylvania case,' this question was ably considered. In that case an action was brought for an injury to the plaintiff's wife by the fighting of passengers among themselves. It appeared that drunken and quarrelsome men intruded themselves into the ladies' car in large numbers at one of the stations, where an agricultural fair was in progress, and a fight ensued, during which the plaintiff's arm was broken. The company was held responsible because the conductor paid no attention to the matter, but went ou collecting fares instead of stopping the train and expelling the rioters, or making some effort to stop the disorder.* In a case in Cmnpare the case of Batton 11. South, &o. rear coach. Afterwards the conductor and R. Co., 77 Ala. 591 ; 23 Am. & Eng. R. the hrakeman were changed, but the new Cas. 514. In Flint v. Transportation Co., officers were not told of the dangerous 34 Conn. 554, where the plaintiff was passenger except by a slight remark made injured by the discharge of a gun dropped by the conductor, "there was a drunken by some soldiers engaged in a scuffle, the man on the train who had given them some court held that passenger-carriers are bound trouble, but who had quieted down." The to exercise the utmost vigilance and care to drunken passenger soon after shot and guard those they transport from violence killed a fellow-passenger. The court held from whatever source arising ; and the that it was the duty of the company's agents plaintiff recovered a verdict for $10,000. to have confined the drunken passenger or ' King V. Ohio, &c. E. Co., 22 Fed. have expelled him, and not having done Rep. 413; 18 Am. & Eng. R. Cas. 386. so, the company was liable for the death Its duty is, therefore, to expel a passen- of the passenger killed by him. ger who is likely, from his being intoxi- '^ See Moore v. Fitchburg R. Co., 4 cated, or from any other condition, to be Gray (Mass.), 465; 64 Am. Deo. 83; Penn- a source of annoyance or injury to passen- sylvania R. Co. v. Vandiver, 42 Penn. St. gers. Atchison, &o. R. Co. v. Weber, 33 465; Seymour v. Greenwood, 7 H. & N. Kan. 543; 52 Am. Rep. 548; 21 Am. & Eng. 855. The subject of assaults committed E. Cas. 418. In the case of King v. Ohio, by the company's servants is examined &e. R. Co., 22 Fed. Rep. 413 ; 18 Am. & further on. Pnit, §§ 315, 816. Eng. R. Cas. 886, there was a drunken » Pittsburgh, &o. R. Co. v. Hinds, 68 and riotous passenger on the train whom Penn. St. 608: 91 Am. Deo. 224. thu conductor and brakeman removed to a * Pittsburgh, &c. E. Co. v. Hinds, 68 SEC. 314.] DUTY TO PKOTECT PASSENGERS, ETC. 1369 Illinois the court held that the company was liable for an injury- sustained by a passenger upon one of its regular passenger trains Penn. St. 503 ; 91 Am. Dec. 224. In the course of the opinion, Woodward, C. J., speaking for the court, said : "There is no such privity between the company and. the disorderly passenger as to make them liable on the principle of respondeat superior. The only ground on which they can be charged is a violation of the contract they made with the in- jured party. They undertook to carry the plaintiff safely, and so negligently per- formed this contract that she was injured. This is the ground of her action ; it can rest upon no other. The negligence of the company or of their officers in charge of the train is the gist of the action, and so it is laid in the declaration. And this question of negligence was submitted to the jury in a manner of which the com- pany have no reason to complain. The question for us as a court of error, there- fore, is whether the ease was, upon the whole, one that ought to have been sub- mitted. The manner of the submission, having been unexceptionable, was there error in the fact of submission ? The learned judge reduced the case to three propositions. He said the plaintiff claims to recover : 1. Because the evidence shows that the conductor did not do his duty at Beaver station, by allowing im- proper persons to get on the cars. 2. Be- cause he allowed more persons than was proper under the circumstances to get on the train and to remain upon it. 3. That he did not do what he could and ought to have done to put a stop to the fighting upon the train which resulted in the plain- tiff's injury. As to the first of the above propositions, the judge referred the evi- dence to the jury especially with a view to the question whether the disorderly char- acter of the men at Beaver station had fallen under the conductor's observation so as to induce a reasonable man to appre- hend danger to the safety of the passen- gers. The evidence on this point was conflicting, but it must be assumed that the verdict has established the conclusion that the conductor knew that drunken men were getting into the cars. Let it be granted also as a conclusion of law that a VOL. II. —36 conductor is culpably negligent who ad- mits drunken and quarrelsome men into a passenger-car. What then ? The case shows that an agricultural fair was in pro- gress in the vicinity of Beaver station ; that an excited crowd assembled at the station rushed upon the cars in such num- bers as to defy the resisting power at the disposal of the conductor, and that the man who commenced the fight sprang upon the platform of the hindmost car after they were in motion. Of what conse- quence, then, was the fact that the con- ductor knew these were improper passen- gers ? It is not the case of a voluntary reception of such passengers. If it were, there would be great force in the point ; for more improper conduct could scarcely be imagined in the conductor of a train than voluntarily to receive and introduce among quiet passengers, and particularly ladies, a mob of drunken rowdies. But the case is that of a mob rushing with such violence and in such numbers upon the cars as to overwhelm the conductor as well as the passengers. It is not the duty of railroad companies to furnish their trains with a police force adequate to such emergencies. They are bound to funiish men enough for' the ordinary demands of transportation, but they are not bound to anticipate or provide for snch an unusual occurrence as that under consideration. When passengers purchase their tickets and take their seats they know that the train is furnished with the proper hands for the conduct of the train, but not with a police force sufficient to quell mobs by the wayside. No snch element enters into the implied contract. It is one of the in- cidental risks which all who travel must take upon themselves, and it is not reason- able that a passenger should throw it upon the transporter. These observations are equally applicable to the second proposi- tion. The conductor did not ' allow ' im- proper numbers, any more than improper characters, to get upon the cars. He says he took no fare from them, and in no man- ner recognized them as passengers. To allow undue numbers to enter a car is a great wrong, — almost as great as know- 1370 RAILWAYS AS CAEEIEES OF PASSENGEES. [CHAP. XVII. which was voluntarily stopped at certain docks, not a regular station, in the midst of an excited mob of striking workmen, where a num- ber of those composing the mob were allowed to board the train and enter plaintiff's coach, no warning whatever having been given to him of the danger. Under such circumstances the company is properly charged with negligence in stopping its train at such a place and allowing any part of the lawless and excited mob to board the train.' ingly to introduce, persons of improper character; and, in a suitable case> we would not hesitate to chastise the practice severely. But this is not a case in which the conductor had any volition whatever in respect either to uumhers or characters. He was simply overmastered ; and the only ground upon which the plaintiff could charge negligence upon the company would he in not furnishing the conductor with a counter force sufficient to repel the intruders. This was not the gi'ound as- sumed by the plaintiff, and it would scarcely have been maintainable had it been assumed. Taking the case as it is presented in the evidence, we think it was error for the court to submit the cause to the jury on these two grounds. But upon the third ground we think the cause was properly submitted. If the conductor did not do all he could to stop the fighting, there was negligence. Whilst a conductor is not provided wi;th a force sufficient to resist such a raid as was made upon the train in this instance, he has, nevertheless, large powers at his disposal, and, if properly used, they are generally sufficient to pre- serve order within the cars, and to expel disturbers of the peace. His official char- acter and position are a power. Then he may stop the train and call to his assist- ance the engineer, the fireman, all the brakemen, and such passengers as are will- ing to lend a helping hand ; and it must be a very formidable mob indeed, more formidable than we have reason to believe ^ had obtruded into these cars, that can re- sist such a force. Until at least he has put forth the forces at his disposal, no conductor has a right to abandon the scene of conflict. To keep his train in motion and busy himself with collecting fares in forward ears whilst a general fight was raging in the rearmost car where the lady passengers had been placed, was to fall far short of his duty. Nor did his exhorta- tion to the passengers to throw the fighters out come up to the demands of the hour. He should have led the way, and no doubt passengers and hands would have followed his lead. He should have stopped the train and hewed a passage through the intrusive mass until he had expelled the rioters, or had demonstrated, by an earnest experi- ment, that the undertaking was impossible." 1 Chicago & Alton R. Co. v. Pillsbury, 123 111. 9 ; 31 Am. & Eng. R. Cas. 24. The opinion of the court discusses the question at some length ; a former deci- sion in the same case, reported in 8 N. E. Rep. 803 ; 26 Am. & Eng. R. Cas. 241, was overruled. But the company cannot be held liable for an assault upoii' a passenger by one not an employ^ in its service when there was no negligence on its part in not providing against it. Thus where a passenger while standing on the platform and aboutto eutei the car Is knocked down and robbed by an unknown person there is no ground upon which the company can be held liable. Sachrowitz v. Atchison, &c. R. Co., 37 Kan. 212 ; 34 Am. & Eng. R. Cas. 382. So where a passenger was thrown from the car by his fellow-passengers, the company cannot be held liable, it having had no reason to anticipate such an assault. Fel- ton V. Chicago, &c. R. Co., 69 Iowa, 577 ; 27 Am. & Eng. R. Cas. 229. So also where a female passenger waiting at the station is insulted by intruders who came into the waiting-room, the company cannot be held liable, it being shown that there was no gi'ound for anticipating such an occur- rence. Batton V. South, &c. R. Co., 77 Ala., 591 ; 23 Am. & Eng. R. Cas. 514. SBC. 3,15.] LIABILITY FOR WILFUL INJURY, ETC. 1371 Sec. 315. Liability for Wilful Injury to Passengers by Its Servants. — A person who employs servants is bound by the acts of those servants in the line of their employment, whether they are tortious or otherwise, under the maxim qui facit per alium facit per se ; and this rule of liability applies with increased force where, as in the case of railway complies, the operation of their road, and the dis- charge of all its subsidiary functions must be performed' by employes. It is among the implied provisions of the contract between a pas- senger and a railway company that the latter has employed suitable servants to run its trains, and that passengers shall receive proper treatment from them ; and a violation of this implied duty or con- tract is actionable in favor of the passenger injured by its breach, although the act of the servant was wilful and malicious, — as, for a malicious assault upon a passenger,' committed by any of the train- hands, whether within the line of his employment or not. The duty of the 'carrier towards a passenger is contractual, and among other implied obligations is that of protecting a passenger from insults or assaults by other passengers, or by their own servants. In an Illinois case,^ Craig, C. J., quite clearly and accurately states the obligation. Nor is the company liable when there was no reason to anticipate the wrongful act of the fellow-passenger, and where the conduc- tor interferes as speedily as possible in order to prevent the, injury. Mullan v. Wisconsin Central R. Co. (Wis.), 49 N. W. Kep. 249. See also Mulligan v. New York, &c. E. Co., 129 N. Y. 506. An in- struction that " railroad companies are bound to exercise very great vigilance and care in maintaining order, and guarding passengers against violence from whatever source arising," is erroneous. Reasonable care and diligence under all the circum- stances is all that can be required. Illi- nois Central R. Co. o. Minor, 69 Mis,s. 710. 1 Stewart v. Brooklyn, &c. E. Co., 90 N. Y. 388 ; 43 Am. Rep. 185 ; Wabash, &e. E. Co. V. Rector, 104 111. 296; Chi- cago, &c. E. Co. V. Flexman, 103 111. 546 ; 42 Am. Rep. 33 ; Goddard v. Grand Trunk R. Co., 57 Me. 202 ; 2 Am. Rep. 39 ; Hanson v. European, &c. R. Co., 62 Me. 84 ; Bryant v. Rich, 106 Mass. 108 ; 8 Am. Rep. 311 ; Shirley v. Billings, 8 Bush (Ky.), 147 ; Craker v. Chicago, &c. E. Co., 36 Wis. 657 ; 17 Am. Rep. 504 ; New Orleans, &c. E. Co. v. Burke, 53 Miss. 200 ; Arasmith' ■!;. Temple, 11 111. App. 89 ; Rounds v. Delaware, &c. R. Co., 64 N. Y. 121. In Ramsden v. Boston, &c. R. Co., 104 Mass. 117, 6 Am. Rep. 117, the plaintiff (a woman) was a passenger upon the defendant's rail- road, and upon being called upon for her fare by the conductor, paid it to him. Soon after, the conductor called upon her again for her fare, and she declined to pay him. Thereupon the conductor used very abusive and insulting language to her, and demanded that she should give him her parasol to keep as security for her fare, which she refused to do ; and the conduc- tor thereupon took hold of her parasol and forcibly wenched it from her posses- siouj The court held that the company was liable for the assault. 2 Chicago, &c. R. Co. v. Flexman, 103 111. 546 ; 42 Am. Rep. 33. In this case a brakeman upon a freight train assaulted the plaintiff, who was a passenger, because he accused him of stealing his watch ; and the company was held liable for the as- sault. 1372 EAILWAYS AS CAEEIERS OF PASSENGERS. [CHAP. XVri. and the rule of liability in such cases, thus : " The law required the appellant, as a common carrier, to use all reasonable exertion to pro- tect its passengers from insult or injury from fellow-passengers who might be on the train ; and if the agents of the appellant in charge of the train should fail to use reasonable diligence to protect its passengers from injuries from strangers while on board the train, the company would be liable. So, tooi the contract which existed be- tween the appellant as a common carrier, and the appellee as a pas- senger, was a guaranty on behalf of the carrier that the appellee should be protected against personal injury from the agents or servants of the appellant in charge of the train. The company placed these men in charge of the train. It alone had the power of removal, and justice demands that it should be held responsible for their wrongful acts towards passengers while in charge of the train. Any other rule might place the travelling "public at the mercy of any reckless employ^ a railroad company might see iit to employ, and we are not inclined to establish a precedent which will impair the personal security of a passenger." In an Indiana case,^ the brakeman wilfully turned a jet of water upon the plaintiff, a passenger, for refusing to pay him for watering his hogs, and the court held that the company was liable. In a recent case in New York,'^ the driver of a horse-car attacked and assaulted the plaintiff, who was a passenger upon the car, and cruelly beat him, because the passenger expostulated with the driver for an assault made by him upon a third person outside the vehicle. The trial court dismissed the complaint, upon the ground that in making the assault the servant was not acting within the scope of his employment ; but the Court of Appeals reversed this ruling, — Tracy, J., saying : " Had the person assaulted been one to whom the defendant owed no duty, the dismissal of the complaint would prob- ably have been correct ; lut the rule lohich applies in such a case has no application as between a common carrier and his passenger. In such a case a different rule prevails. By the defendant's contract with the plaintiff it had Tjindertaken to carry him safely, and to 1 Terre Haute, &c. E. Co. v. Jackson, Schultz i>. Third Ave. R. Co., 89 N. Y. 81 Ind. 19. See alae Louisville, &o. E. 242. A different doctrine was at one time Co. V. Wood, 113 Ind. 644, where the maintained in New York. Isaacs v. Third company was held liable for the wilful Ave. R. Co,, 47 N. Y. 122, where the act of the conductor in pulling passenger court refused to hold the carrier liable for off a moving train. a wilful assault by the conductor. But 2 Stewart v. Brooklyn, &o. E. Co., 90 the doctrine of this case is repudiated in N. Y. 688 ; 48 Am. Rep. 185. See also the later Stewart case, cited supra. SEC. 315:] LIABILITY FOR WILFUL INJUEY, EXC. 1373 treat him respectfully ; and while a common carrier does not under- take to insure against injury from every possible danger, it doe$ undertake to protect the passenger against any injury arising from the negligence or wilful misconduct of its servants while engaged in performing a duty which a carrier owes to the passenger." ^ In a for- mer work written by us,^ we laid down the rule applicable in such cases as follows : '' If a carrier of goods for hire should commit the carriage of them to a servant, and the servant should steal them, or wantonly destroy them, or through his negligence injure, or suffer them to be injured, there is no q^uestion but that the master would How. (U. S.) 468, where the servant of a railroad company took an eugiaie and ran it over the road for his own gratification, not only without consent, but contrary to ex- press orders, the Supreme Court of the TJnited States held that the railroad com- pany was responsible. In Landreaux v. Bel, 5 La. o. s. 434, the court say that carriers are responsible for the mis- conduct of their servants towards passen- gers to the same extent as for their misconduct in regard to merchandise com- mitted to their care ; that no satisfactory distinction can be drawn between the two cases. In Chambei-lain r. Chandler, 3 Ma- son (U. S.), 242, Judge Stokt declared, in language strong and emphatic, that a pas- senger's contract entitles him to respectful treatment; and he expressed the hope that every violation of this right would be visited, in the shape of damages, with its appi'opriate punishment. In Nieto V. Clark, 1 Cliff. (U. S.) 145, where the steward of the ship assaulted and grossly insulted a female passenger. Judge Clifford declares, in language equally emphatic, that the contract of all passen- gers entitles them to respectful treatment and protection against rudeness and every wanton interference with their persons from all those in charge of the ship ; that the conduct oi, the steward disqualified him for his situation, and justified the master in immediately discharging him, although the vessel was then in a foreign port. Bryant v. Rich, 106 Mass. 180, was a very similar case. See also Balti- more, &c. R. Co. ,1. Blocher, 27 Md. 277. 2 Wood's Law of Master and Servant, 648 et seq. 1 See Hutchinson on Carr. (2d ed)., §§ ■595 et seg. In Milwaukee, &c. R. Co. V. Finney, 10 Wis. 388, the plaintiff was unlawfully put out of a car by the con- ductor ; in Seymour «. Greenwood, 7 H. & N. 355, a passenger was assaulted and put out of the defendant's omnibus by one of its servants ; in Moore v. Fitch- burg K. Co., 4 Gray (Mass.), 465, the plaintiff, a passenger, was forcibly expelled from the defendants' train by the conduc- tor; and in all these cases the company was held responsible. So, in Penn. R. v. Van- diver, 42 Penn. St. 365, a passenger re- ceived injuries of which he died, by being thrown from the platform of a railroad-car because he refused to pay his fare or show his ticket, he avening he had bought one but could not find it. The evidence showed he was partially intoxicated. It was urged in defence that if the passen- ger's death was the result of force and vio- lence, and not the result of negligence, then (such force and violence being the act of the agents alone without any com- mand or order of the company) the com- pany was not responsible therefor. But the court held otherwise. "A railway company," said the court, "selects its own agents at its own pleasure, and it is bound to employ none except capable, pru- dent, and humane men. In the present case the company and its agents were all liable for thd injury done to the deceased." Un Weed v. Panama E. Co., 17 N. Y. 362, the jury found specially that the act of the servant by which the plaintiff was injured was wilful. The court held the wilfulness of the act did not defeat the plaintiff's right to look to the railroad company for redress. In Philadelphia, &c. R. Co. v. Derby, 14 1374 BAILWAYS AS CAEEIBES OF PASSENGERS. [CHAP. XVU. be liable therefor ; i and it would be a singular rule, and an absurd one, that did not hold the carriers of passengers, intrusted not only with their comfort, but the safety of their persons and their lives, during the journey, to as strict performance of this duty as of the other, and it will be seen by an examination of the better class of cases that they are so held. They are bound to look out for the comfort of their passengers, and, as far as possible, save them from annoyance." ^ This rule has been held to extend to cover an implied stipulation that such carriers are bound to protect passengers against " obscene conduct, lascivious behavior, and every immodest and libidinous approach ; ^ and this has been held to amount to a contract duty. In the language of Story, J.,* " It is a stipulation, not for toleration, but for respectful treatment, for that decency of demeanor which constitutes the charm of social life, for that attention which mitigates evil without reluctance, and that promptitude which admin- isters aid to distress." In respect to females, it proceeds yet further; it includes an implied stipulation against general obscenity, that immodesty of approach that borders on lasciviousness, and that wan- ton disregard of the feelings which aggravates 6very evil.^ In com- 1 Alden o. Pearson, 3 Gray (Mass.), 342 ; Klauber v. Am. Express Co., 21 Wis. 21 ; Am. Express Co. v. Sands, 55 Penn. St. 140. Day V. Owen, 5 Mich. 520. 8 Nieto V. Clark, 1 Cliff. (U. S.) 145. See also as to the liability of a carrier hy water, Springer Transp. Co. v. Smith, 16 Lea (Tenn.), 498. * Chamberlain, v. Chandler, t Mason (U. S.), 242. ^ The liability of a carrier of passen- gers for insults inflicted upon its passen- gers was considered in a Wisconsin case, Craker v. The Chicago, &c. R. Co., 36 Wis. 657 ; 17 Am. Rep. 504. In that case the plaintiff, a young Jady, was a passenger upon the defendant's road, and for a portion of the way was the only passenger on the car, and while so pursu- ing her journey, the conductor of the tiain, without her consent, forcibly kissed her. In an action against the railroad company, to recover for the injury, a ver- dict for $1,000 was rendered in her favor, which was sustained upon appeal. In a Maine case, Goddard v. Grand Trunk R. Co., 67 Me. 202, 2 Am. Eep. 39, the liability of a railroad company for an assault committed by its servants upon a passenger was ably discussed. . In that case it appeared that the plaintilf was a passenger in the defendant's train, and that, on request, he surrendered his tictet to a brakeman employed on the train, who in the absence of the conductor, was au- thorized to demand and receive it ; that the brakeman afterwards approached the plaintiff, and, in language coarse, profane, and grossly insulting, denied that he had either surrendered or shown him his ticket, that the brakeman called the plaintiff a liar, charged him with attempting to avoid the payment of his fare, and with having done the same thing before, and threat- ened to split his head open and spill his brains right there on the spot ; that the brakeman stepped forward and placed his foot upon the seat on which the plaintiff was sitting, and leaning over the plain- tiff, brought his fist close down to his face, and shaking it violently, told him not to yip, if he did, he would spot him ; that he was a damned liar ; that he never handed him his ticket ; that he did not believe he paid his fare either way ; that SEC. 315.] LIABILITY FOR WILFUL INJURY, ETC. 1375 menting upon the rights and duties of carriers of passengers, Shaw, this assault was continued some fifteen or twenty minutes, and until the whistle sounded for the next station ; that there were several passengers present in the car, some of whom were ladies, and that they were all strangers to the plaintiff; that the plaintiff was at the time in feeble health, and had been for some time under the care of a physician, and at the time of the assault was reclining languidly in liis seat; that he had neither said nor done anything to provoke the assault ; that, in fact, he had paid his fare, had received a ticket, and had surrendered it to this very brakeman who delivered it to the conduc- tor only a few minutes before, by whom it was afterwards produced and identified ; that the defendants were immediately no- tified of the misconduct of the brakeman, but, instead of discharging him, retained him in his place ; that the brakeman was still ia the defendants' employ when the case was tried, and was present in court during the trial, but was not called as a witness, and no attempt was made to jus- tify or excuse his conduct. Upon this evidence the defendants contended that they were not liable, because the brake- man's assault upon the plaintiff was wilful and malicious, arid was not directly nor impliedly authorized by them ; that the master is not responsible as a trespasser, unless, by direct or implied authority to the servant, he consents to the unlawful act. " The fallacy of this argument, when ap- plied to the common carrier of passengers," said Walton, J., " consists in not dis- criminating between the obligation which he is iinder to his passenger, and the duty which he owes a stranger. It may be true that if the carrier'^ servant wilfully and maliciously assaults a stranger, the master will not be liable ; lAit the law is other- wise when he assaults one of his master's passengers. The cariier's obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he intrusts the performance of this duty to his servants, the law holds him responsi- ble for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to pro- tect his passenger from violence and insult. from whatever source arising. He is not regarded as an insurer of his passenger's safety against every possible source of danger ; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of to make his passenger's journey safe and comfortable. He must not only protect his passenger against the violence and insults of strangers and co-passengers, but, a, fortiori, against the violence and insult of his own ser- vants. If this duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passen- ger is assaulted and insulted, through the negligence or the wilful misconduct of the carrier's servant, the carrier is necessarily responsible. And it seems to us it would be cause of profound regret if the law were otherwise. The carrier selects his own servants, and can discharge them when he pleases, and it is but leasouable that he should be responsible for the manner in which they execute their trust. To their care and fidelity are intrusted the lives and limbs and comfort and convenience of the whole travelling public, and it is cer- tainly as important that these servants should be trustworthy as it is that they should be competent. It is not sufficient that they are capable of doing well, if in fact they choose to do ill ; that they can be as polite as a Chesterfield, if, in their in- tercourse with the passengers, they choose to be coarse, brutal, and profane. The best security the traveller can have that these servants will be selected with care is to hold those by whom the selection is made responsible for their conduct." Still further on in the course of his opinion, he summarizes the rule of liability thus : "The law requires the common carrier of passengers to exercise the highest degree of care that human judgment and foresight are capable of, to make his passenger's journey safe. Whoever engages in the business impliedly promises that his pas- sengers shall have this degree of care. In other words, the carrier is conclusively presumed to contract to give the passenger this degree of care ; we say conclusively presumed, for the law will not allow the earner, by notice or special contract even, 1376 BAILWAYS AS CAREIEBS OP PASSENGERS. [CHAP. XVII. C. J.,^ said : " Au owner of a steamboat or railroad is in a condition somewhat similar to that of an inn-keeper whose premises are open to all guests, yet he is not only empowered, but he is hound so to regulate his house, — as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, — as to repress and prohibit all disorderly conduct therein ; and, of course, he has a right, and is bound, to exclude from his premises all disorderly persons not conforming to the regulations necessary and proper to secure such quiet and good order." ^ From these brief extracts from the opinions of eminent jurists, as well as from an examination of the cases referred to in the notes to this section, it will be seen that in all cases where the master owes a duty to third persons or the public, he cannot shirk or evade it by committing its performance to another, but is bound absolutely to per- form the duty, and is liable for a failure so to do, in any respect whereby injury results to others, whether such failure results from the negligence or from the wilful, wanton, or criminal conduct of the agent to whom the diity is committed.^ This rule was well illustrated in the case referred to in the last note. In that case the plaintiff, with his wife, took passage on the defendants' train, and, through the to depriye his passenger of this degi'ee of lutely to protect its passengers against the care. If the passenger does not have such misconduct or negligence of its own ser- care, but on the contrary is unlawfully vants, employed in executing the contract assaulted and insulted by one of the very of transportation and acting, within the persons to whom his conveyance is in- general Scope of their employment." And trusted, the carrier's implied promise is Mr. Taylor, in his work on Corporations broken, and his legal duty is left nnper- {2d ed.), § 347, states a very stringent formed, and he is necessarily responsible to rule: "While a carrier does not insure the passenger for the damages he thereby his passengers against every conceivable sustains. The passenger's remedy may be danger, he is held absolutely to agree that either in assumpsit or tort, at his election, his own servants engaged in transporting In the one case he relies upon a breach of the passenger shall commit no wrongful the carrier's common-law duty in support act against him. . . . Recent cases state of his action ; in the other upon a breach this liability in the broadest and strongest of his implied promise. The form of the language ; and, without going beyond the action is important only upon the question actual decisions, it may be said that the of damages. In actions of assumpsit, the carrier is liable for eveiy conceivable damages are generally limited to compen- wrongful act done to a passenger by its sation. In actions of tort, the jury are train-hands and other employes while they allowed greater latitude, and in proper are engaged in transporting him, no matter cases, may give exemplary damages." how wilful and malicious the act may be, 1 Com. V. Power, 7 Met. (Mass.) 601. or how plainly it may be apparent from 2 See Markham B.Brown, 81T. H. 523. its nature that it could not have been ' Weed V. Panama K. Co., 17 N. Y. done, in furtherance of the carrier's busi- 862. In the case of Steamboat Co. ■». ness." See also Peavey v. Georgia, &c. Brookett, 121 U. S. 637, the court held R. Co., 81 Ga. 485 ; Harrison v. Fink, 42 that " a common carrier undertakes abso- Fed. Rep. 787. SEC. 315.] LIABILITY FOE WILFUL INJUEY, ETC. 1377 wilful conduct of their conductor and servant, the train was de- tained over night in an unhealthy locality, and the passengers were thereby exposed to great dangers and hardships. The plaintiffs wife, in consequence of such exposure and hardships, was taken ill during the night and suffered greatly. In an action to recover for the injury, the defendants were held liable, notwithstanding the injury arose from the wilful act of , the conductor, the court very properly holding that the defendants were bound to discharge their contract with the plaintiff absolutely, and could not defend upon the ground that they had committed its performance to an agent who had wantonly disregarded the duty. In reference to the application of this rule, so far as railroad companies and carriers of passengers are concerned, it may be said that they are not only bound to protect their passengers against injury and unlawful assault by third per- sons riding upon the same conyeyance, so far as due care can secure that result, but they are bound absolutely to see to it that no unlaw- ful assault or injury is inflicted upon them by their own servants. In the one case their liability depends upon the question of negli- gence, — whether they improperly admitted the passenger inflicting the injury upon the train,^ — while in the other, the simple question is, whether the act was unlawful ; and the question of negligence is not an element of liahilitii.^ In a Massachusetts case,^ the plaintiff was a passenger upon the defendants' steamboat from Boston to Gardiner, Maine, and while upon the trip he was unlawfully assaulted by the steward of the boat and some of the table waiters. In an action to recover for the injuries, the plaintiff had a verdict for $8,000,, which was upheld on appeal, — Chapman, J., remarking : " As a general rule, the master is liable for what his servant does in the course of his employment ; but, in regard to matters wholly disconnected from the service to be rendered, the master is under no responsibility for what the servant does or neglects to da The reason is that, in re- spect to such matters, he is not a servant.* If, therefore, any of the of&cers or men connected with the running of the defendants' boat had met the plaintiff in the street or elsewhere, in a position wholly 1 Pittsburgh, &c. R. Co. v. Hinda, 53 Co. v Jopes, 142 U. S. 26, where this pas- Penn. St. 512 ; 91 Am. Dec. 224 ; Stephen sage is quoted with approval. V. Smith, 29 Vt. 160. 8 Bryant v. Rich, 106 Mass. 180 ; 8 2 Goddard v. Oraild Trunk R. Co., 57 Am. Rep. 311. Me. 202 ; 2 Am. Rep. 39 ; Sherley v. Bill- * Aldrich v. Boston, &c. R. Co., 100 ings, 8 Bu3h.(Ky.), 147; Bryants. Rich, Mass. 31. 106 Mass. 180. See New Orleans, &c. R. 1378 RAILWAYS AS CAEEIEES OP PASSENGERS. [CHAP. XVU. discoanected with their duties to the defendants, and committed an assault and battery upon him, it is clear that the defendants would not have been liable. " There are two views which may be taken in the present case. One is the view which was taken by the court in a leading case de- cided in the Supreme Court of the United States.^ The plaintiff in that action was riding gratuitously, and the court held that the com- pany were liable to him, not oh the ground of a contract between the parties, but because he was injured by their carelessness when he was where he had a lawful right to be. But as the plaintiff in this case was a passenger for hire, we think it better to consider what the contract was between them. This has been discussed in the following cases.^ . . . These cases were cited by Clifford, J.,^ and the terms of the contract for carriage by water are well stated by him in conformity with the authorities as follows : ' Passengers do not contract merely for ship-room and transportation from one place to another, but they also contract for good treatment, and against personal rudeness and every wanton interference- with their persons, either by the carrier or his agents employed in the_ management of the ship or other conveyance. In respect to such treatment of pas- sengers, not merely the officers but the crew are the agents of the carriers.' In a case in the United States Circuit Court,* Story, J., says : ' Kindness and decency of demeanor is a duty not limited to the officers, but extends to the crew.' This interpretation of the contract of the carrier is not unreasonable. It is not more exten- sive than the necessities of passengers require ; nor is it difBcult to perform. The instances in which it is violated by servants, even of the lowest grade, on board a ship or engaged in the management of a railroad train are rare, and the canier rather than the passenger ought to take the risk of such exceptional cases, the passenger being necessarily placed so much within the power of the servants. In this case,^ the servants who committed the wrong, being the steward and table waiters, were those who were engaged in providing meals, 1 Philadelphia, &o. E. Co. v. Derhy, Mass. 361 ; 100 Mass. 34 ; Milwaukee, &c. 14 How. 468. R. Co. v. Finney, 10 Wis. 388. ^ Chamberlain v. Chandler, 3 Mason « Pendleton v. Kinsley, 3 Cliff. (U. S.) (U. S.), 242; Nieto ... Clark, 1 Cliff. 124. (TJ. S.) 145 ; Baltimore & Ohio R. Co. v. * Chamherlain v. Chandler, 8 Mason Blocher, 27 Md. 277 ; Pittsburgh, &e. R. (tJ. S.), 242. Co. V. Hinds, 53 Penn. St. 512 ; Simmons ^ Bryant v. Rich, 106 Mass. 180. V. New Bedford, &c. Steamboat Co., 97 SBC. 315.] LIABILITY FOE WILFUL INJUEY, ETC. 1379 waiting on the tables, and collecting the pay for meals. They were treating the plaintiff's relative with gross rudeness in connection with this business, and the plaintiff interfered only by a remark that was proper, whereupon the assault was committed. It was not as if a quarrel had occurred on shore and disconnected with the duties of persons on shipboard. It violated the contract of the defendants as to how the plaintiff should be treated hy their servants who were employed on hoard the ship, and during the passage. For a violation of such a contract, either by force or negligence, the plaintiff may bring an action of tort or an action of contract." In this class of cases the question of the servant's authority is not involved. Indeed, it is presumed that the acts were not authorized, unless the company, by retaining the servant in its employment after it has knowledge of his act, can impliedly be regarded as ratifying his act.^ The action is predicated upon the breach of an absolute duty to protect tlie pas- senger from insult or danger so far as possible, and the breach con- sists in its not having done so. The fact that it employs agents to discharge this duty, and has selected with due care, and instructed them properly, does not relieve it in any measure from liability. Its contract, so far as its agents have the power to do so, must le performed at all hazards." ^ 1 Goddard v. Grand Trunk R. Co., 57 servant who committed the act, and not Me. 202 ; 2 Am. Eep. 39. In Keokuk in furtherance of his employment by the Northern Line Packet Co. v. True, 88 111, master. This position is predicated upon 608, it was held that a steamboat company, McManus v. Crickett, 1 East, 106, and as a carrier of passengers for liire, is, other cases which have followed it. In through its officers and servants, hound to the case cited. Lord Kenyon said : ' It the utmost practicable care and diligence is laid down by Holt, C. J., as a general to carry its passengers safely to their place proposition, " that no masteris chargeable of destination, and to use all reasonably with the acts of his servant but when he practicable care and diligence to maintain acts in the execution of the authority given among the crew of the boat, including him." Now when a servant quits sight of deck-hands and roustabouts, such a degree the object for which he is employed, and of order and discipline as may be requisite without having in view his master's for the safety of its passengers. The same orders, pursues that which his own malice rule that governs a steamboat company suggests, he no longer acts in pursuance of must also be applied to a railroad com- the authority given him ; and according to pany, as the duties and obligations resting the doctrine of Lord Holt, his master will upon the two are the same, or any other not be answerable for such act.' The company which carries passengers for hire, doctrine announced is no doubt correct 2 In Chicago, &c. R. Co. v. Flexman, when applied to a proper case. If, for 103 111. 546, 42 Am. Eep. 33, Craig, example, a conductor or brakeman in the C. J., upon this question, said: "But employ of a railroad company should wil- it is said that if the plaintiff was injured fully or maliciously assault a stranger, — a by a servant of the appellant, it was an person to whom the railroad company act outside of the employment of the owed no obligation whatever, — the master 1380 EAILWAYS AS CAERIEES OP PASSENGEES. [CHAP. XVII. The rule then is that a railroad company is civilly liable /or all the unlawful acts of its servant, done in the prosecution of the busi- ness entrusted to Mm if its passengers are injured thereby, and good faith and motives on the part of the servant are not a defence. The company is, therefore, liable for acts of injury and insult by an em- ploy4, although in departure from the authority conferred or implied, if they occur in the course of the employment.^ The principles announced are not, however, to be construed as making the company liable for every assault committed by its ser- vants upon a passenger^ It must always be shown, in order to fix the company's responsibility, that the alleged assault was a wrong- ful act. Therefore where the conductor in order to protect himself shoots a passenger who is threatening him with an uplifted weapon there is no liability on the part of the company .^ So also where the in such a case would not be liable for the act of the servant ; but When the same doctrine is invoked to control a case where an assault has been made by the ser- vant of the company upon a passenger on one of its trains, a different question is presented, — one which rests entirely upon a different principle." The court then reviews Keokuk Packet Co. v. True, 88 111. 608 ; Goddard v Grand Trunk R. Co., 57 Me. 202 ; Craker v. Chicago, &e. E. Co., 36 Wis. 657, and other cases pre- viously cited, approving the doctrine up- held by them. In an English case the guard in slam- ming the door of the coach without warn- ing caught the hand of a passenger between the door and the frame, and severely in- jured it. The company was held liable for the injury. Fordham v. Railway Co., L. R. 4 C. P. 619. There are several cases in this country in which the railway com- pany has been held liable for a similar injury. Texas, &o. R. Co. v. Overall, 82 Tex. 247 ; 18 S. W. Rep. 583 ; Mackin v. People's St. R. Co., 45 Mo. App. 82 ; Ken- tucky, &c. Bridge Co. v. Quinkert, 2 Ind. App. 244 (door suddenly shut by a jerk of the train). 1 In the ease of Palmeri v. Manhattan R, Co., 133 N. Y. 261, the plaintiff pur- chased a ticket of the defendant's agent at one of its stations, and, after some alter- cation about the amount of the change, passed through the gate to take a train. The agent followed her out upon the jflat- form, charged her with having passed upon him a counterfeit twenty-five-cent piece, and demanded another in its place. She refused, insisting that her money was genuine, and refused to give back the change received. The agent called her a counterfeiter and a common prostitute, placed his hand upon her, and told her not to stir until he had procured a police- man to arrest and search her. He detained her on the platform for a while, but, not getting an officer, let her go. It was held that an action for damages was maintain- able ; that, in the acts complained of, the agent was engaged about the defendant's affairs, in endeavoring to protect and re- cover its property, and so it was respon- sible for its acts. The court distinguished the case of Mulligan v. New York, &c. R. Co., 129 N. Y. 506. See also Stewart v. Brooklyn, &c. R. Co., 90 N. Y. 588. 2 Thus in the case of New Orleans, &c. R. Co. V. Jopes, 142 U. S. 18, the evidence showed that J., the plaintiff in the case, got into an altercation with the conductor and in the course of it approached him with an open knife in his hand, and in a threatening manner; that the conductor in order to protect himself shot the plaintiff, seriously wounding him. The trial court instructed the jury that if C. (the con- ductor) "shot .under the mistaken belief, from J's. actions, that he was in danger of great bodily harm then about to be SBC. 315.J LIABILITY FOR "WILFUL INJURY, ETC. 1381 passenger, in any other way, himself provokes the attack, he cannot hold the company liable if his action is resented by its agent.^ In an Ohio case, an altercation occurred between the passenger and a baggage-master which resulted in an attack by the latter upon the passenger from which he sustained severe injuries. The court held that the act was entirely beyond the scope of the servant's authority, and not being immediately connected with the company's obligation to carry, afforded no ground for a recovery against the company.* The rule as to exemplary damages against the company is the same as that where a private person is sued for the tort of his agent.^ While a common carrier of passengers, by his contract of trans- portation, undertakes to protect the passenger against any injury arising from the negligence or wilful misconduct of its servants when engaged in the performance of their duties, to warrant a re- covery of damages alleged to have been caused by a breach of the done him by J., when in fact J. was not designing or intentionally acting so as to indicate such design, the plaintiff should he entitled to compensatory damages." The Supreme Court held tha,t this instruc- tion was wrong ; that the conductor hav- ing done the shooting in self-defence and while acting under a reasonable belief that his life was In danger, there was no wrong- ful act and therefore no liability on the part of the company. The case of Steam- boat Co. V. Brockett, 121 U. S. 637,, was distinguished. ^ Scott V. Central Park R. Co., 53 Hun (N. Y.), 414 ; Kew Orleans, &o. R. Co. iv Jopes, 142 U. S. 18 ; Mars; v. Delaware, &o. Canal Co., 54 Hun (N. Y.), 625 ,' Ricketts v. Chesapeake, &c. R. Co., 33 W. Va. 433. 2 Little Missouri R. Coi v. Wetmore, 19 Ohio St. 110. See the same principle ap- plied, and the company h^ld not liable, where a station-agent arrested the passenger without right, in Poulton v. London, &c. Ry. Co., L. R. 2 Q. B. 534 ; and where a street-car driver assaulted a passenger after the latter had left the oar and was on his way to the company's office to report some misconduct on the part of the driver. Cen- tral R. Co. V. Peacock, 69 Md. 257. But in Savannah, &c. R. Co., 86 Ga. 812 ; 12 S. E. Rep. 307, the company was held lia- ble for both assaults, where the conductor assaulted a passenger on the car and then followed him to the office, where he went to report the former's misconduct and assaulted him again. And it has several times been held that the company is liable for the false imprisonment of a passenger by its agent. Lynch ». Metropolitan El. R. Co., 90 N. Y. 77 ; 43 Am. Rep. 141. A passenger cannot claim damages on ac- count of the conductor's drawing a pistol on him, and speaking of him as a coward to the other passengers, if the conductor's conduct was provoked by passenger's own acts. Harrison v. Fink, 42 Fed. Rep. 787 ; Scott v. Railroad, 54 Hun (N. Y. ), 414. But it has been held that words of provocation alone will not justify an as- sault upon a passenger by the conduc|»r, though it may be considered in mitigation of damages. Haman u.. Omaha Horse R. Co., 52 N. W. Rep. 830. This, however, would depend properly upon what words of provocation were used. A street-rail- way company is liable for damages to the feelings and reputation of one of its pas- sengers caused by the threats and insolence of a car-driver. Lafitte v. New Orleans, &c. R. Co., 43 La. An. 34; 8 So. Rep. 701. See also Conger v. St. Paul, &e. R. Co., 45 Minn. 207. As to exemplary dam- ages, see Louisville, &c. R. Co. v. Whit- man, 79 Ala. 228. ' Louisville, &c. R. Co. v. Whitman, 79 Ala. 228. 1382 EAILWAYS AS CARRIERS OP PASSENGERS. [CHAP. XVII. undertaking, the negligence or wilful misconduct must not only be shown, but it must also appear that the servant was acting at the time in the course of his employment,^ or that the company was negligent in failing to provide against such an injury. Sec. 316. Rule as to Acts of Servants to those not Passengers. — While, in the case of passengers, because of the contractual duty existing upon the part of the company, the question as to whether the servant committing the injury had authority, express or implied, to do so, or, in other words, whether it was an act done within the line of his duty, is not material, yet, when the question arises between a trespasser, or one to whom this duty is not owed, and the company, a different question is presented, and the company can only be made liable when authority, express or implied, to do ~the act is shown. Thus, the conductor of a train, being in charge of, and having full control over it, for the time represents the company as to ^ny matter connected with its management and control, and for an act done by him in the line of his duty, as by the ejection of a trespasser from the train, etc., the company would unquestionably be liable ; but for the act of a brakeman of the train, who, without the direction of the conductor, should remove a trespasser from the train, the company would not be liable, unless express authority to do an act to which the act complained of is incident is shown ; 1 In an action to recover damages for with having psssed a counterfeit hill, alleged unlawful arrest and imprisonment, which the plaintiff denied, hut gave the ' these facts appeared : plaintiff, accom- agent another hill in its place. He was panied by a friend, purchased two passen- then taken to the police court, and upon ger-tickets of defendant's ticket-agent, to examination was discharged, the first bill whomhegaveafive-dollar bill, and received having been found to he good. It was the change with the tickets. A short held that the defendant was not liable, time before a detective had left with the that the agent was not acting in the line of agent a circular describing three men, who, his duty so as to make his principal re- it stated, were engaged in passing counter- sponsible for his acts; that he took the bill feit five-dollar bills; the detective told the supposing it to be counterfeit ; and so not agent to look out for these men, and if in the course of his business, or in the dis- they appeared to have them arre-sted. The charge of his duties as agent, but to entrap agent took the bill of the plaintiff, suppos- the plaintiff and to aid the police, and that ing him and his companion to be two of he was not engaged in the discharge of any the men, and that the bill was counterfeit, duty as agent when he pointed out the After testing it, he sent word to a detec- plaintiff and directed his arrest; also, that tive. In consequence of this, a police the defendant was not liable to the plain- officer came ; the agent, according to the tiff for any breach of its contract with him .plaintiff's testimony, pointed out the plain- as a passenger, or for neglect of any duty tiff, who was sitting at the time outside growing out of the relation of passenger the station, and- directed his arrest ; he and earner. Mulligan v. New York, &q was thereupon arrested and brought into E. Co., 129 N. Y. 506. the ticket-office. The agent charged him SBC. 316.] RULE AS TO ACTS OP SERVANTS, ETC. 1383 because the act is not one which comes within the scope or line of his duty.i Thus, in an Iowa case,^ a brakeman, without the direc- tion of the conductor, removed a trespasser from a freight train, and in an action for injuries received by him in being so removed with undue force, the company was held not liable, because the act was one wholly outside the scope of the brakeman's duties.^ In a l*i"ew 1 Marion v. Chicago, &c. R. Co., 59 Iowa, 528 ; Peck v. N. Y. Central R. Co., 70 N. Y. 587 ; Rounds v. Delaware, &c. R. Co., 64 N. Y. 129 ; Walker v. South- eastern Ry. Co., 23 L. Times Rep. 14. In the case of Denver, &c. R. Co. v. Harris, 122 U. S. 596, it appeared that the Atchi- son company were in peaceful possession of a railroad, and while so in possession, the Denver company (the defendant) by an armed force of several hundred men, acting as its agents and employes, and un- der its vice-president and assistant general manager, attacked with deadly weapons the employes of the Atchison company having charge of the road, and forcibly deprived them of possession of the road. There was a demonstration all along the line of the road, and while all this was going on and the seizure was being made, the plaintiff, an employe of the Atchison company, while on the road and pursuing his employ- ment, was fired upon and seriously injured. Immediately upon this seizure the Denver company took charge of the road and con- tinued in possession for sometime. In an action by the plaintiff to recover for the injuries received it was held that the Den- ver company was liable for the unlawful acts of its agents. Admitting that their acts were unauthorized, there was an im- plied ratification of all they had done. Punitive damages were allowed. ' Marion v. Chicago, &o. R. Co., 59 Iowa, 528. In the case of Farber «. Mis- souri Pac. R. Co. (Mo), 22 S. W. Rep. 631, it appeared that the plainti ff was forcibly expelled by a brakeman from a freight train on which he was attempting to steal a ride^ The train was in motion at the time and, in consequence of the rough and dangerous expulsiou, plaintiff sustained severe injuries. In an action for damages the court held, 1. That the provision of the Missouri Constitution that railways within the State are public highways, did not authorize any person to ride thereon without the payment of fare, or in defi- ance of the reasonable regulations of the company. 2. That any liability of the company for the act of its brakeman in forcing the plaintiff, a trespasser, from the train was rested not on the law of carriers but of that on agency. 3. That it could not be assumed, in the absence of proof, that a brakeman on a freight train has any authority to remove trespassers, and that it was not competent to prove the duties of a brakeman by the testimony of one who has only been around trains a few times, and who testified that he had no other knowledge of their duties than what he had observed and what he had been told by railroad men that they were sup- posed to be. The action of the circuit court in allowing judgment for the com- pany was therefore affirmed. In support of the first proposition see also Hyde v. Railroad Co. (Mo.), 19 S. W. Rep. 483 ; Whitehead o. Railroad Co., 99 Mo. 263. In support of the second proposition the court cited Bess v. Chesapeake, &c. E. Co. , 35 W. Va. 492 ; 14 S. E. Rep. 234 ; Inter- nationa], &o. R. Co. V. Anderson, 82 Tex. 516. Compare Hoffman v. N". Y. Central E. Co., 87 N. Y. 25, where the plaintiff, a boy eight years of age, jumped upon the steps of a car in a passenger train on defendant's road, and sat down upon the platform of the car ; he was kicked from the car by the conductor or a brakeman, while the train was running at a speed of about ten miles an hour, and was injured. It was held that the case was properly sub- mitted to the jury, and the evidence justi- fied a verdict for the plaintiff, since it was within the implied authority of the con- ductor or brakeman to remove trespassers. ' See Brands. Schenectady, &c. R. Co., 8 Barb. (N. Y. ) 368; Meyer v. Second Ave. R. Co., 8 Bosw. (N. Y.) 305, affirmed 17 N. Y. 362. 1384 BAIL-WAYS AS CAEKIERS OF PASSENGERS. [CHAP. XVII. Jersey case^ the master of a ferry-boat left the owner's wharf without the direction of the owners' agent, — who alone possessed authority Where a female serrant, having authority to light fires in a house, but not to clean the chimneys, lighted a fire for the sole purpose of cleaning a chimney, it was held that her employer was not liable for an injury caused by her negligence in light- ing the fire. Mackenzie v. McLeod, 10 Bing. 385. See also Towando Coal Co. v. Heenan, 86 Penn. St. 418. In our opin- ion the court erred in the instruction given, and in refusing the instruction asked by the defendant." See Nobles- ville, &c. Co. D. Gause, 76 Ind. 142, 40 ' Am. Rep. 224 ; Quinn v. Power, 87 N. Y. 535, 41 Am. Rep. 392. In Terre Haute & Indianapolis R. B. Co. v. Jackson, 81 Ind. 19, the action was for injuries alleged to have been sustained by the appellee whilst a passenger Upon a train of the ap- pellant. The particular injury charged was the throwing of a jet of water from a water-tank upon the appellee, it being alleged in one paragraph of the complaint that it was done wrongfully and purposely by the servants of the defendant in charge of the train, and in a second paragraph, that it was done carelessly and negligently. The court said : " The doctrine is now well settled, ' that a corporation is liable for the wilful acts and torts of its agents committed within the general scope of their employment, as well as acts of negli- gence ; and that the corporation is thus bound, although the particular acts were not previously authorized, nor subse- quently ratified by the corporation.' Jef- fersonville E. R. Co. v. Rogers, 38 Ind. 116 ; American Express Company v. Pat- terson, 73 id. 430, and cases cited.' It is therefore immaterial whether the conduc- tor or brakemau had been required or au- thorized to wash out the cars of the com- pany for any purpose. The appellant had , undertaken to carry the plaintiff, as a pas- senger, upon its train, and was bound to do it safely. For this purpose, the appel- lant was represented by its agents in charge of the train, and if they did any- thing inconsistent with the safe carriage and delivery of the plaintiflF at his desti- nation, unharmed, the appellant, upon the plainest princiijles of law as well as good policy, is liable for the injury. The drenching of a passenger with water, either negligently or wilfully, is a clear and direct breach of the duty to carry safely, and it is immaterial upon the question of the company's liability, whether it resulted from the fault of the brakeman alone, or of the conductor, or of both of them. They were each agents of the company for the running of the train, and the company was therefore respon- sible for the acts of either, or both, in so far as such acts affected the passenger. It follows that if the conductor was faultless in raising the valve and in throwing the water into the caboose, — which could hard- ly be, when he knew there was a passenger there liable to be injured, — and the brake- man designedly procured the plaintiff to go to the door of the caboose in order that the water might strike him, the company is clearly liable for the injury ; that the evidence tends to show this state of facts is not disputed." In Galveston, &c. R. E. Co. V. Donahoe, 56 Tex. 162, a railway conductor, to whom the plaintiff had given a $20 bill for his fare, went before a magis- trate at a station, charged him with pass- ing . counterfeit money, and had him ar- rested and ejected from the cars. The court said: "In the case before us it is distinctly alleged that the conductor was acting within the scope of his authority in making the affidavit, causing appellee to be an'ested and wrongfully confined in prison ; and for that reason the corpora- tion was liable for the injuries resulting from each and all of these acts of the con- ductor. As a matter of law, it cannot be said that it was within the scope of the power and duty of the conductor as agent of the corporation, to institute the prose- cution, and to cause appellee to be con- fined in the county jail. These are ques- tions of fact to be determined by the jury from the evidence. If, as a matter of fact, 1 Aycriggs v. Hudson, &c. E. R. Co., 30 N. J. L. 460. SEC. 316.] KUXE AS TO ASSAULTS, ETC. 1385 to start the boat upon each trip, — and took in tow a burning barge. After towing the barge some distance, he was compelled to cut it loose, and it floated against the plaintiff's yacht and injured it. It was held that the master of the boat was not, at the time the injmy occurred, acting within the scope of his authority, and that the owners of the ferrj'-boat were not liable. So where a watchman who was employed to watch the defendant's freight-house cut loose from the defendant's wharf a boat which had taken fire, but which did not endangfer the freight-house, and the boat drifted away and was burned, when it could have been saved if it had not been cut throughout came within the scope of his authority as agent of the company, while it is claimed by the appellant that the conductor was acting ' throughout beyond and outside of the limits of his agency. The issue thus made was one of fact, to be determined by the evidence, and that offered by appellant and excluded by the court was pertinent to the issue. Be- sides, the court instructed the jury that if they believed from the evidence ' that the agents or employes of the company, under the guise of acting in dischai-ge of the du- ties of their station, did wantonly aid maliciously, and without probable cause, expel the plaintiff from the cars after he had paid his fare in good and lawful money, and had him arrested upon a criminal charge without probable cause, the com- pany would be liable to the plaintiff for such wanton and malicious action of its agents and employes, not only for the actual damages sustained by the plaintiff, but the jury are authorized to give such pu- nitory damages as the jury in their discre- tion may deem right. ' This charge is in direct conflict with doeti'ine announced in the case of Hays v. Houston, &o. E. E. Co., 46 Tex. 280. It is there held that the principal, whether a natural or artifi- cial pferson, is not liable in exemplary damages for the unauthorized malicious acts of the agent, unless such acts had been ratified or accepted by the principal. The error arising from the exclusion of the evidence offered by appellant was in- tensified by the error contained in the charge." Murdock ». Boston, &c. R. Co., 41 Am. Rep. 57, note ; Chicago City E. Co. V. McMahon, 103 lU. 485. the conductor wrongfully expelled the aippellee from the cars, or procured it to be done by others, or wrongfully prevented the appellee from going on to the point of destination, or procured it to be done by others, the company, as a matter of law, would be liable to appellee for the actual damages resulting therefrom. So also, if the corporation had expressly empowered or instructed the conductor to instigate legal proceedings against passengers, and cause them to be arrested and confined in prison upon such charges, it would un- doubtedly be liable for the acts of the con- ductor coming within the scope of such authority. And notwithstanding the gen- eral rule that the principal is not liable in exemplary damages for the unauthorized malicious acts of the agent, still, if the principal should ratify or accept such acts of the agent, it thereby becomes liable for the damages, as well exemplary as actual, resulting from the act. As an illustration of this doctrine, if the prose- cution instigated against appellee by the conductor was malicious and unfounded, and instituted without the authority of the corporation, still, if it afterward took up and carried on that prosecution, this would constitute a ratification of the act of the age»it. For upon sound, equi- table considerations, the corporation would not be allowed to accept the benefits re- sulting from the malicious acts of its agent without being compelled to assume the" burdens justly attaching to the- acts. Under the issues as presented by the re- spective pleading of the parties, the tes- timony excluded by the court should have been admitted : for it was asserted by the appellee that the acts of the conductor VOL. II. — 87 1386 RAILWAYS AS CAREIBKS OP PASSENGERS. [CHAP. XVH. loose, the company was held not to be liable, because the act was one which did not come within the scope of either the express or implied powers of the servant.^ These cases sufficiently illustrate the rule that the doctrine of respondeat superior does not apply simply from the circumstance that at the time when an injury is iniiicted the person inflicting it was in the employment of another ; but that, in order to make the master liable, the act inflicting the injury must have been done in pursuance of an express or implied authority to do it. That is, it must be an act which is fairly inci- dent to the employment; in othe? words, an act which the master has set in motion. Thus, where a corn-factor employed a tipsy porter to carry something, which the porter put on a vehicle not used in the corn-factor's business, and left it standing in the high- way, and a person driving along the road with a chaise ran upon it and was injured, the corn-factor was held liable, upon the ground that by the employment of the tipsy porter to carry his merchandise upon the highway he had set the whole thing in motion.^ It is true, the corn-factor did not employ the porter to leave the vehicle and goods in the highway, but he did employ him to carry them, and whatever was done by him in the execution of that employment, and pertaining to it, he was responsible for. In another English case, 3 Lord Brougham said: "I am liable for what is done for me, and under my orders, by the man I employ, for I may turn him off from that employ when I please ; and the reason that I am liable is this, that by employing him I set the whole thing. in motion, and what he does, being done for my benefit, and under my direction, I am responsible for the consequences of doing it." The fact that the act was done against the master's orders does not affect his liability ; the master is bound to see that his orders are obeyed, and is liable if injury results from the acts of the servant in'' the line of his duty. Thus, in a leading case before the Federal Supreme Court,* Mr. Justice Griee said : " Such a qualification of the maxim respondeat superior would, in a measure, nullify it. A large proportion of the accidents on railroads are caused by the neg- ligence of the servants or agents of the company ; nothing but the most stringent enforcement of discipline and the most exact and perfect, obedience to every rule and order emanating from a superior 1 Thames Steamboat Co. v. Housatonic See also Anderson x). Brownell 1 Shaw R. Co., 24 Conn. 40. (Sc), 474. ^ Wanstall v. Pooley, 6 CI. & T. 910. * Philadelphia, &c. R. Co. v. Derby 14 » Duncan v. Findlater, 6 CI. & F. 910. How. (U. S.) 468. SEC. 316.] RULE AS TO ASSAULTS, ETC. 1387 can insure safety to life or property. ... If such disobedience could be set up by a railroad company as a defence when charged with negligence, the remedy of the injured party would, in most cases, be illusive, discipline would be relaxed, and the danger to the life and limbs of a traveller greatly enhanced. Any relaxation of the stringent policy and principles of the law affecting such cases would be highly detrimental to the public safety." In an English case,^ the plaintiff having taken a return ticket from the London station of the defendant's railway, at the end of the re- turn journey gave up an old half-ticket, which he had put into his pocket by mistake, for the right one, whereupon the ticket collector took the plaintiff to the ticket-office, where he explained how the mistake had occurred ; he then went with the collector to the inspec- tor of police in the defendant's station, and they all went together to the superintendent of the line, who, after hearing the matter, said : " I think you had better take him, but you had better first obtain the concurrence of the secretary." The inspector then left, and on his return he directed a police constable to take the plaintiff to the pub- lic police-station, and charge him with having travelled on the de- fendant's road without having paid his fare, with intent to avoid paying it. The plaintiff was taken to the station in obedience to these instructions, and before a magistrate, who, upon hearing the plaintiff's story proved true, dismissed the complaint. The police inspector and constable were both in the pay of the defendants. In an action against the defendants for false imprisonnient, it was held that inasmuch as the statute imposes a penalty on any person travelling on a railway without having paid his fare, with intent to avoid the payment thereof, and empowers all officers and servants on behalf of the company to apprehend such person until he can conveniently be taken before a justice, it might reasonably be as- sumed that a railway company carrying passengers would, in the ordinary course of business, have on the spot officers with authority to determine without delay whether the company's servant should or should not on the company's behalf apprehend a passenger accused of the offence ; and that the fact that all subordinate servants of the company referred to the superintendent of the line as the superior authority, was sufficient evidence that he was an officer having au- thority from the company to act for them in the matter ; and the fact that the officer sent the plaintiff to the police-station without having 1 Goff ». Great Northern Railway Co., 3 El. & El. 672. 1388 RAILWAYS AS CAREIERS OP PASSENGERS. [CBAP. XVII. the concurrence of the secretary as directed by the superintendent, did not relieve the company from liability.^ In a Scotch case,^ a question as to the liabiKty of the master arose in this form : The master sent his servant with a horse to sell at a fair. The horse was aiflicted with the glanders, and the servant on his way to the fair put up the horse in the plaintiff's stables, and as a conse- quence the disease was communicated to three mares of the plaintiff, and afterward by the mare to a cow and two queys. In an action for the damages, the Lord Ordinary held that the master would not be ; liable, unless, at the time he sent the servant with the horse, he hnew that it had the disease; but upon appeal it was held that the master was liable, whether he knew that the horse was diseased or not, as the putting up of the horse was in the line of his servant's duty and in strict performance of it. And generally, where the injury results from the execution of the employment, the master is liable. Thus, a person who employs servants to blast in a quarry is liable for their negligence in the adoption of proper precautions to prevent injury to others from the blasts.^ A canal company which employs a draw- bridge tender is liable for injuries inflicted by him in improperly raising the bridge.* So, when a master intrusted his cart to a ser- vant, h6 was held liable for his negligent or improper management of it.^ So, for injuries inflicted by the careless or reckless conduct of the driver of a stage-coach upon a passenger or others.^ So, where a person is employed to cut trees, if he, through mistake, cuts trees upon the land of another, the master is liable therefor, even though he gave no authority to cut any trees except upon his own estate.'^ So a master was held liable for the acts of his servants employed to clear land for him, in setting fires to burn the brush, whereby the forests were injured ; and this even when the fires were built against his orders.8 So, where a clerk of a distiller sold a cask of whiskey to a dealer who had no license, and, at his request sent it to him with a permit obtained in the name of another person, it was held 1 Green v. London General Omnibus « Brown v. McGregor, 17 F. C. (Sc.) Co., 7 0. B. (n. s.) 290 ; Cosgrove v. Og- 232. den, 49 N. Y. 256 ; 10 Am. Hep. 861; ' Hilt v. Merrioks, Hume (Sc), 397; Garretzen v. Duenckel, 50 Mo. 104. Smith v. Webster, 23 Mich. 298 ; Luttrell 2 Baird v. Graham, 1 Stuart (Sc), 578. v. Hazen, 3 Sneed (Tenn.), 20. » Sword V. Cameron, 1 D. (Sc) 439. 8 Keith v. Kier, 16 F. C. (Sc.) 679 ; ' Hunter v. Glasgow, &c. Canal Co., Simons v. Monier, 29 Barb. (N. Y.) 419; 14 S. (Sc.) 717- Lerandant v. Saisse, L. E. 1 C. P. 152. ^ Baird v. Hamilton, 4 S. (Sc. ) 790 ; McLaren v. Roe, 4 Murr. (Sc.) 381. SEC. 316.] KULE AS TO ASSAULTS, ETC. 1389 that the ae* being done in the line of his duty, and bfiing within the scope of his employment, the master was liable for the statute pen- alty.i But the rule would have been otherwise if the act had been outside the scope of his employment.^ Sq, where a hostler at an inn negligently omitted to put the bits in the mouth of a giiest's horse, and in consequence the horse became unmanageable and damaged the plaintiff and his buggy, the master was held chargeable.^ So, where a servant, without the knowledge of Ms master, piled wood in the highway whereby the plaintiff in passing along the highway was injured, it was held that, although not directed or expressly author- ized by the master to put the wood there, yet, as the master himself for many years had piled wood there, the servant must be regarded as ipipliedly authorized to do so.* And in this case, there can be no question but that the master would have been liable even though he had never piled wood there before, and had even expressly directed the servant not to pile wood there, if the act was lond fide done in pursuance of the master's business and in furtherance of it. In- deed, where a servant, in the prosecution of his master's business, deviates from his instructions as to the manner of doing it, or even acts directly contrary thereto, the master is still liable, if the act was bond fide done in furtherance of his biJisiness. Thus, in a New York case,^ an action was brought for injuries inflicted upon the plaintiff, 1 Advocate-General v. Grants, 15 D. that the latter was liable for an injury (So.) 980. caused by the fright of a horse in being 2 The Queen v. Gilroys, i Macph. (Sc.) driven by. Park, C. J., said : "The de- 656. fendant claims that those acts were per- 8 Hall V. Warner, 60 Barb. (N. Y.) foi-med by him on his own account ; that 198. he was desirous to take a train for Hart- * Harlow v. Humiston, 6 Cow. (S. Y.) ford later in the day on his own private 189. business ; and that he left the bags by the * Cosgrove v. Ogden, 49 N. Y. 255 ; road-side to enable him to make his deliv- 10 Am. Eep. 361. In Phelan v. Stiles, ery more rapidly and return earlier, so 43 Conn. 426, a servant employed by a that he could accomplish his purpose, flour-merchant to deliver his goods, hav- But what business of his own was he then ing started out with a wagon-load for dif- doing ? He was not then attending to ferent ' customers, left by the road-side private business in going to Hartford, several bags of bran, while he went up a That was to be undertaken later in the side road to deliver a quantity of flour, in- day. He left the bags to expedite the de- tending to take the bran on his return ; livery. Did it make the business his own his object being to save an unnecessary because he dispatched it more speedily transportation of the bran, and thus to than it would naturally have been done ? finish the delivery sooner and get time to He was sent by the defendant to deliver attend to some private business of his the flour and bran. Did he do anything own. It was held that in leaving the bags else than deliver them ? His whole object by the road-side he was to be regarded as in leaving the bran by the side of the road acting in the master's employment, and was to gain time. Suppose he had driven 1390 RAILWAYS AS CARRIERS OF PASSENGERS. [CHAP. XVII. a boy about six years old, under the following circumstances : The defendants were proprietors of a lumber-yard in the city of New the horse with such speed as amounted to carelessness in order to gain time, and had injured a person by so doing, would he be transacting his own business while driving so rapidly, so that the defendant would not be liable ? Suppose he had left the bran out of consideration for his horse, and the same result had followed, would the defendant be excused ? He was under the necessity of taking the bran to Mr. King's, or of leaving it by the side of the road until his return ; suppose he had taken the latter course without any spe- cial object in view, would it make any dif- ference in the case 1 We think all that can be said of the matter is, that Babeock performed the defendant's business in de- livering the bran in a shorter time than he would have done had he not intended to go to Hartford later in the day ; and certainly the rapidity with which the business was transacted cannot operate to excuse the defendant." In Howe v. New- march, 12 Allen (Mass.), 49, it was held that the master is liable for the conse- quences of the servant's act even if it is one that is forbidden by law, provided it is done in the course of the employment, and without malice. The defendant was a baker, who employed a person to drive his wagon and deliver bread to his cus- tomers in Cambridge. The city ordi- nances forbade riding or driving upon any sidewallf. The plaintiff, while passing upon a sidewalk in the city, saw the de- fendant's horse and wagon standing on the same sidewalk in front of a house near by and facing him. He walked on, and when about twelve feet from the horse, the de- fendant's driver came out from the house, threw a basket on the wagon, and jumped for the seat, when the horse started and struck and injured the plaintiff. The de- fendant was held liable. The master is not responsible as a trespasser unless by direct or implied authority to the servant he consents to the wrongful act. But if he gives an order to a servant which implies the use of force and violence to others, leaving to the discretion of the servant when the occasion arises to which the or- der applies, and the extent and kind of force to be used, he is liable, if the ser- vant in executing the order makes use of force in a manner or to a degree which is unjustifiable. In Nashville, &c. E. K. Co. V. Stames, 9 Heisk. (Tenn.) 52, 24 Am. Rep. 296, the person in charge of an engine standing on the track of the de- fendant's road near a crossing, wilfully and maliciously blew the whistle and made a great noise as the plaintiff was crossing the track, thereby frightening the plaintiff's horses and causing them to run away and injuring the plaintiff. The court held that the company was liable. See also Chicago, &c. E. R. Co. v. Dickson, 63 111. 151 ; Croaker v. Chicago, &c. E. E. Co., 36 Wis. 657 ; Bedding v. South Carolina E. E. Co., 3 S. C. 1 ; Shea V. Sixth Ave. E. E. Co., 62 N. Y. 180 ; Weeks v. N. Y., &c. E. E. Co., 72 N. Y. 50 ; Mott v. Consumers Ice Co., 73 id. 543 ; Peck v. N. Y. Central E. E. Co., 70 N. Y. 587 ; Day v. Brooklyn City E. E. Co., 12 Hun (N. Y.), 435 ; McKin- . , ley V. Chicago, &c. E. E. Co., 44 Iowa, 314 ; 24 Am. Ei:p. 314 ; and, even though the ma.ster may not be liable in the first instance for the consequences of the ser- vant's wrongful acts, yet it seems that he may ratify them so as to become liable therefor, by his retention of the servant after knowledge of such acts. Thus, in Bass V. Chicago, &c. R. R. Co., 42 Wis. 654, a passenger on a railroad entered without let or hindrance a car reserved for ladies and took a seat, there being no va- cant seats in the other cars except the smoking-car. A brakeman, afterward and without having requested the passenger to leave the rur, ejected him while the train was in motion, using no more force than was necessary. The conductor was informed of the facts. The brakeman was retained in the service of the companj', and was promoted after this action was commenced. It was held that notice to the conductor was notice to tlie company ; and that the retention and promotion of the brakeman was a ratification of his act, and that the company was therefore liable. SEC. 316.] KULE AS TO ASSAULTS, ETC. 1391 York, which was in charge of one Brown, as their agent and fore- man. He had entire charge of removing lumber and timber from the docks to the yard, and piling it up in the yard, and of selling and delivering it to customers. In the prosecution of this business. Brown caused a quantity of lumber to be piled upon or near the side- walk, nearly opposite the house where the plaintiff's parents resided, about a block distant from the defendants' yard. Brown testified that he piled it there because it was more convenient than to pile it in the yard; that he had no authority from the defendants to pile it there ; but that one of the defendants told him not to do it. The plaintiff was about six years of age, and in the habit of going unattended into the street, which was a quiet one, where there was but little if aiiy more danger to be apprehended than upon an ordinary country road. It was held that the defendants were responsible for this act of Brown. It was an act done by him in the prosecution of their business, and a departure by him from their instructions in the manner of doing it did not relieve them from responsibility therefor. If the act was one not fairly within the express or implied authority growing out of the master's express orders or of the employment itself, then the master cannot be held chargeable,^ because the act is, in that event, the act of the servant himself, and not that of the master. Thus, if a clerk in a store, employed to sell goods, suspecting that a person has committed a larceny of his employer's goods, causes his arrest, the master cannot be held chargeable for false imprisonment or for 1 In McClenaghan v. Brock, 5 Bich. scope of, her employment, and that the L. (S. C.) 17, the plaintiff's slave was on master was not liable therefor. In Sherl- board a steamboat as a passenger, and the dan v. Charlick, where a carman having second engineer of the boat, by negligently finishe.d the business of the day returned discharging a gun, wounded hira while he • to his employer's shop with the horse was alongside upon a lighter. In an ac- and cart, and obtained the key of the tion against the captain for the injury it stable, which was close at hand, but in- was held that he was not liable, because stead of going there at once and putting the discharge of the gun by the engineer up the horse, as it was his duty to do, he was not an act done in the course of his without his master's knowledge or consent, employment or in discharge of any duty drove a fellow-workman to Easton square, connected with the service. In McKenzie and on his way back ran over and injured V. McLeod, 10 Bing. 385, the servant was the plaintiff and his wife, — it was held employed to light fires in the house, and (all the judges concurring) that inasmuch she lighted furze and straw with a view to as the carman was not at the time of the clean a chimney that smoked, and in accident engaged in the business of his doing so the house caught fire and was master, he was not responsible for the con- destroyed. It was held that as the duty sequences of this unauthorized act. See was simply to light fires in the house, the also, to same effect, Mitchell v. Crass- lighting of furze and straw to clean the weller, 16 Eng. Law & Eq. 448 ; Cox v. chimney was an act done outside the Keahey, 36 Ala. 340. 1392 BAIIiWAYS AS CAREIEKS OP PASSBNGEES. [CHAP. XVII. the assault, because the act was one which the clerk had no author- ity to do for the master.i Where a clerk in the service of a railway company, whose duty it was to issue tickets to passengers and receive the money for them, and keep it in a till under his charge, suspect- ing that a person had ^attempted to rob the till, after the attempt had ceased, gave the person into custody, it was held that the master could not be held chargeable, as no authority from the master could be implied to do the act.^ It was his duty to protect the money in the till, and to that end to do any act necessary, or which he deemed necessary, for its protection ; but, in order to charge the master with liability for his act, the act must have been dOne to protect the money, and as the act was not done nrdU after the attempt to take money had ceased, it was not an act done for its protection, and consequently was wholly without authority, — as was said by Blackburn, J. : " There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person who be supposes has done something, with reference to the property, which he has not done. The act of punishing the offender is not anything done with reference to the property, it is done for the pur- pose of vindicating justice. . . . There is an implied authority to do all those things that are necessary for the protection of the property intrusted to a person, or for fuljilling a duty which tlu person has to perform." * So, where a policeman is employed by a railway com- pany to watch their station, it cannot be presumed that he was au- thorized by the company to make an illegal or unwarranted arrest, but that he was simply authorized by the company to do that which was incident to his powers and duty as a policeman, and to make arrests only where the arrest was lawful, and in the manner pre- scribed by law ; because, being an officer whose duties are prescribed by law, in the absence of express orders to the contrary it is pre- sumed that his employment simply contemplated the exercise of 1 Mali V. Lord, 39 N. Y. 381. the plaintiff nearby under siispicioiiB cir- 2 Allen V. London, &c. Ey. Co., L. E. cumstances, they arrested him, and took 6 Q. B. 65. him before the United States authorities, * Poulton V. Great-Western Ry. Co., and -no evidence being produced against L. K. 2 Q. B. 534; Goff v. Great Northern him he was discharged ; and in an action Ry. Co., 3 E. & E. 672 ; Edwards v. Lon- against the company for false arrest and don, &c. Ey. Co., L. R. 5 C. P. 445; Lim- assault, it was held that the act was not pus V. General Omnibus Co. ,1 H. & C. within the scope of the employment of the 526. In Porter «. Cedar Eapids, &c. R. defendants* servants, and consequently Co., 41 Iowa, 358, the defendants' em- that the company was not liable therefor, jiloy^s, finding the track obstructed, and SEC. 316.] BULB AS TO ASSAULTS, ETC. isas sucb powers as the law confers upon him ; ^ and the master cannot be held chargeable for an illegal or unwarranted arrest made by him.^ In order to fix the liability of a master for the act of the servant, it is not enough that the act was done with the attempt to benefit him, or to serve the master. It must he something done in doing what the master has employed the servant to do ; ^ and if, in the regular ^ Edwards v. Loudon, &c. Ry. Co., L. E. 5 C. P. 445. 2 Allen V. London, &c. Ry. Co., L. E. 6 Q. B. 65 ; Rob v. Birkenhead, &c. Ey. Co., 7 Eng. L. & Eq. 546. Thus, in Poulton V. London, &c. Ey. Co., L. E. 2 Q. .B. 534, tlje defendants' servant, who was the defendants' station-agent, gave the plaintiff into custody for not paying the fare of a horse *hich he was takiug to an agricultural fair. The statute authorized the defendants to give any person into custody who should refuse to pay his fare. But the statute did not authorize the giv- ing of a person into custody because he refused to pay the fare upon property beiiig taken hy him over the road ; and the court held that, inasmuch as there was a right conferred upon the master by statute, the servant, in furtherance of their business within the powers given by the statute, .could bind the master ; but, inasmuch as the master could not go beyond tlie powers given by the statute and give the plaintiff into custody for a, cause not provided by statute the servant could not bind them by the doing of an act clearly in excess of the statute and not warranted thereby, — the law not implying an authority on the part of a servant' to do an act wholly iin- lawful. * Limpus V. The General Omnibus Co., 1 H. & C. 526. Thus, in Burns v. Poul- son, 42 L. J. C. P. 302, one W. was em- ployed to cart certain iron to a wharf, and the defendant, a stevedore, to ship it on board a ship alongside. The defendant's foreman, who was acting for him, being dissatisfied with the uncarting of the iroji by W-'s carters, got into the cart, and in throwing out some of the iron injured the plaintiff. It was shown to be W.'s duty to jmeart the iron, and the defendant's duty only to take it when so uncarted by "W.'s carters. In reference to the lia- bility of the defendant to respond for injuries received by reason of his servant having undertaken to perform duties that devolved upon another, and in nowise per- tained to the duties of his employment, Beett, J., said: "What the defendant was employed to do ^- what he might ac- cording to that employment himself Ijave done — he employed Malone to do. He employed Malone to cairy the iron rails, after they were on the ground at the quay, thence into the ship, and there stow them. For anything done by Malone in carrying or stowing the rails, or anything done by Mal6ne with the rails after they were on the ground with the intent to carry out his orders, to take them into the ship and stow them there, the defendant would have been liable. . . . Anything voluntarily done by Malone before the rails were on the ground, though done vnth intexit to serve the defendant, was not a thing done which the defendant had employed Malone to do. . . . The judge was bound, in my opinion, to say what was done by Malone was done before his employment by the defendant was called into play, that is, that it was a thing which the defendant had not employed Malone to do." The plaintiflf was nonsuited. It is proper to say that Denman, J., entertained a con- trary view, holding that it was entirely a question of fact for the jury to say whether the servant was acting within the scope of his employment, and he relied upon the following cases to sustain his position : Storey u. Ashton, 38 L. J. (n. s.) Q. B. 223 ; Joel v. Morrison, 12 C. & P. 501 ; Whatman v. Pearson, 7 B. & S. 137; Mitchell V. Crassweller, 13 C. B. 237. But it will be observe^ by examination of the opinion delivered by the judge, and of the cases cited by him, that he failed to make the necessary distinction between the doctrine of the cases referred to and the case in hand. In the oases relied, upon there was no claim that the seiTant was 1394 RAILWAYS AS CAERIEES OF PASSENGEES. [CHAP. XVD. course of his employment, he does an act which produces injury to another, even though the act amounts to a trespass, yet if he can justify himself to the master, the master is responsible for the damages.^ A servant of a railroad company took down the bars in a fence on the side of the track, and left them down, whereby horses escaped at night from an adjoining field, upon the track, and were killed by an engine of the company. It appeared that at the time of taking down the bars he was engaged in a business which concerned him- self, and in which the company had no interest ; but it was under- stood, by virtue of the employment of the servant by the company, that if the former, at any time after his day's labor was over, saw anything amiss, he was required to give the necessary attention to it without being specially directed so to do. In an action to recover the value of the horses killed, it was held that the servant was acting in the course and scope of his employment in leaving the bars down, and that the company was liable in damages therefor.^ In another case, a watchman employed to watch the defendant's freight-house, cut loose the plaintiffs steamboat that took fire in the night-time near the freight-house'. The boat drifted away and was burned. It appeared that the fire did not endanger the freight-house and could easily have been extinguished. No evidence of any authority for the act of the watchman was given, except such as might be implied from the business. It was held that the act was not within the scope of the servant's implied authority .» Another apparent excep- tion to the general rule is, where, though the person causing the in- jury is engaged upon the business of another, he is not in fact the servant of that other, but of a third party. Thus, if a carnage and horses are let out to hire by the day, week, month, or job, and the driver is selected and appointed by the owner of the carriage, the latter is responsible for all injury resulting from the negligent and careless driving of the vehicle, although the carriage may be in the possession and under the control of the hirer.* acting for any other person than the mas- 2 Chapman v. New York &o. E. E. ter, while in the case in hand he was vol- Co., 33 N. Y. 369. unteering to serve another to perform a 3 Thames Steamboat Co. v. Housatonio duty with the discharge of which the E. R. Co., 24 Conn. 40. master was not charged. In many of its * Laugher v. Pointer, 6 B. & C. 572 ; features this case is identical with Stevens Smith v. Lawrence, 2 Moo. & Eob. 2 j V. Armstrong, 6 N. Y. 435. Dean v. Branthwaite, 5 Esp. 36. ' Harlow v. Humiaton, 6 Cow. (N. Y.) 189. SEC. 316. j ' EULE AS TO ASSAULTS, ETC. 1395 A master is liable for the act of his servant, done in the course of his employment about his master's business.^ But he is not respon- sible for an act done outside of his employment ; ^ nor for tlie wan- ton violation of the law by the servant.^ Thus, the owner of a raft, although not present, is liable for any damage which may be done to the property of others upon the river, occasioned by the negli- gent or unskilful management of his pilot* But for an act which is not expressly or impliedly authorized by the employer, the latter is not responsible ; nor for an act done at a time when tlie -servant is not engaged in his service. Thus, where the master gave his servant a holiday and let him take his horse and cart to attend a fair, it was held that the master was not liable for injuries inflicted by him with the horse and cart during his ab- sence.^ So, where the master sent his servant with his cart to get the goods of B. only, and he undertook to carry the goods of C. also, it was held that the master was not liable for the loss of C.'s goods.® In these cases there was no act done for the master, but the servant was acting for himself. In an English case, the plaintiff, who was travelling on the defendants' line, on arriving at a station, took part verbally in a dispute going on between some other passengers and the defendants' servants, relative to a railway ticket ; thereupon the defendants' servants seized him, ran him down an incline, pushed him out of the station, and as he passed through the door, gave him a kick. It was held that the company was responsible for this as- sault. The plaintiff, when outside the station, was desirous of coming back into the station for the purpose of complaining to the station-master of the assault. While he was standing outside the station, some of the defendants' servants came out struggling and fighting with other persons. Ultimately, the servants who were po- lice-constables in the service of the company, secured two of the persons, and then one of these servants of the company, who was drunk, seized the plaintiff, and took him, together with the others, to the police station, where he charged all three with having been \ drunk and disorderly. As the' inspector refused to take this charge, the company's servant then charged them with having assaulted the officers of the company, and obstructed them in the execution of 1 Priester v. Augley, 5 Rich. (S. C.) 44. ' Moore v. Sanbome, 2 Mich. 519. 2 McClenaghan w. Brock, 5 Rich. (S.C.) * Shaw v. Reed, 9 "W. & S. (Penn.) 72. 17 ; Aldrich v. Boston, &c. R. R. Co., » Bard v. Yohn, 26 Penn. St. 482. 100 Mas3. 31 ; Bryant v. Rich, 106 id. ^ Satterlee v. Groot, 1 Wend. (N. Y.) 311. 272. 1396 RAILWAYS AS CARBIEES OP PASSBNGEES. [CHAP. XVII. their duty. The plaintiff and the others were then taken into cus- tody on this charge, and locked up. In the instructions issued by the defendants to the policemen in their service such policemen were authorized to take into custody any one whom they might see commit an assault upon another at any of the defendants' stations, and for the purpose of putting an end to any fight or affray ; but they were enjoined to use this power with extreme caution, and not at all if the fight or affray was at an end before they interfered. It was held that the acts of the company's policemen were beyond the scope of their authority, and that the defendants were not responsible for them.' But if the plaintiff was to be regarded as a passenger while waiting at the station, would not the defendant have been lia- ble whether the act of the policemen was authorized or not ? In one case an engineer, while his locomotive was standing near a street-crossing, at the instant a person was crossing the track in front of his engine, negligently or maliciously caused the steam to escape, whereby the team was made to run away and injury was in- flicted. It was held that the company were liable.^ But where the plaintiff employed the defendant to remove her goods in his cart for hire, and with the consent of the defendant's carman, the plaintiff got on the cart with the goods, and on the way the cart broke down, and the plaintiff was seriously injured, and her goods broken, it was held that the plaintiff was not entitled to recover damages for the personal injury.^ Where a servant on a steamboat discharged a gun and injured the plaintiff's slave, who was upon a lighter along-side, it was held that the master was not liable.* So, where an injury was in- flicted by the servant in doing an errand for the master, by riding the master's horse, which he took without any authority from, or the knowledge of, the master;^ where an injury was inflicted while firing a salute with a cannon, on board the master's boat, the salute being fired without the knowledge or direction of the master ;« where the plaintiff was injured by reason of the escape of the defendant's horses from the control of the servant in charge of them, because they were struck by another servant of the defendant, who had no authority or control over the horses;^ where a servant who had 1 "Walker v. The South-Eastem Rail- * McClenaghan w. Brock, SItioh. (S.C.) way Co., C. P. 23 L. T. E. 14. L. 17. 2 Toledo, W. & W. R. E. Co. u. Har- ^ Goodman v. Kennell, 3 C. & P. 168. mon, 47 111. 298. « Haack v. Feariiig, 5 Robt.(N.V.) 528 ' Lygo V. Newbold, 24 Eng. Law & » Weldon v. NY. Central R. Co S Ec[. 507. Bosw. (N. Y.) 576. SEC. 316.] ETTLE AS TO ASSAtTLTS, ETC. 1397 been sent to moot a vessel in the river, took a boat without leave to return in;^' where a servant driving his master's horse got off the carriage and took hold of a horse standing before a van, and caused the van to move so as to make room for the c&,rriage to pass, whereby a packing-case fell from the van and broke the thills of the plaintiff's gig;^ where the servant, employed to work upon the plaintiff's house, wilfully bespattered the walls,^ or while driv- ing the master's cart assaulted a person,* — it was held that the mas- ter was not liable for the injury. Thus it will be seen that in the absence of express orders to do an act, in order to render the mas" tet liable the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the employment. When the act of the servant is not fairly within the scope of his implied authority, or is not directed by the master, the act js that of the servant, and the master cannot be held chargeable simply because it was done while in his employ- ment and for his benefit.^ But the fact that the servant did not do the act as ordered or contemplated by the mastefi' is no defence. In order to charge the master, the injury must arise from an act done in the service of the master, and from the doing of an act which the master was bound to pertbrm, or which he had directed the servant to do. If the service is rendered for another, or in doing that which some other person is bound to perform, he is acting- as the servant of him on whom the duty rested. Thus, where the de- fendant sent his servant to B.'s store to get a box which he had bought of B., and the box being in the loft of the store, the servant by B.'s permission, went into the loft to get the box, and letting it down by means of a tackle and fall, the box, through the servant's" negligence, slipped out of the fall and fell upon the plaintiff and in- jured him seriously, — in an action against the master, it was held that the servant was acting as the servant of B., when the injury was inflicted, and that the defendant was not liable therefor.^ As has previously been stated, it is not the instructions of' the master that determine the extent and limit of the servant's au- J Brown v. Purviance, 2 H. & G. Bard v. Yohn, 26 Penn. St. 482 ; Steele v. (Md.) 316. Smith, 3 E. D. S. (N. Y.) 321 ; Keith v. 2 Latiib V. Palk, 9 C. & P. 629. Keir, Hayes, 8. » Garvey v. Dung, 30 How. Pr. (N. Y.) ^ Stevens v. Armstrong, 6 N. Y. 435 ; 315. ' Brown v. Poulson, 2 H. & G. (Md.) 316 ; * Baird v. Hainilton, Hay (So. ) 29. Cosgrove v. Ogden, 49 N. Y. 255; 10 Am. 6 Mackenzie v. McLeod, 10 Bing. 885 ; Rep. 361. Satterlee v. Groat, 1 Wend. (N. Y.) 273; 1398 KAILWAYS AS CAEEIEES OF PASSENGERS. [CHAP. XVU. thority, but the nature of the employment, the charactei of the service required, the character of the act done, and the circum- stances under, and purpose for which it was done. In deter- mining the question of authority, regard must be had to the object, purpose, and end of the employment. When a person employs another to drive his carriage, it is not to be presumed that h^ employs him to drive it purposely and intentionally against the carriage of another, when such act is wholly unnecessary to carry out any purpose of his master ; but if the servant, in driving the car- riage, finds himself involved in a position of danger, either to him- self or the team, and in extricating himself purposely drives against the carriage of another and overturns it, this is most certainly a part of his duty, and is within the scope of his authority, because he is presumed to be clothed with authority to do everything essential to effectuate the purpose and ends of his employment.^ It may be said to be well settled that- the master is not only re- sponsible for the negligence or misfeasance or malfeasance of his ser- vant in respect of the discharge of duties expressly imposed upon -him, but also in all cases where the act of the servant is within the scope of his implied authority; and in determining this, the na- ture of the emploj'ment, and the ends and purposes sought to be at- tained, are material elements, and the real test of liability.^ Prima facie, when the act is one which the master himself might have done, it will be presumed that it was an act within the scope of the servant's authority, and the burden of proving want of authority rests upon the defendant.^ In the first case cited in the last note, . the plaintiff brought an action for an assault committed upon him by the defendant's servant, a brakeman, in forcibly ejecting him from one of their passenger-cars. It appeared that the defendants set apart a car for ladies, and gentlemen accompanied with ladies. The servant was stationed at the entrance of the cars to direct pas- sengers what cars to take. The plaintiff, not being accompanied by i Limpus V. General Omnibus Co., 129 ; Peck v. H. E. & N. Y. C. R. 7 C. B. N. s. 290; Seymour v. Green, Co., 6 T. & C. (N. Y.) 436 • 70 N y' wood, 6 H. & N. 359 ; Croft v. Alison, 4 587. ' B, & Aid. 590. 8 Peck v. S. Y. Central R. Co., 70 N. 2 Ramsden «. Boston & Albany E. Co., Y. 587. See, similar in its facts and 104 Mass. 117 ; Howe v. Newmarch, 12 doctrine, Bass v. Chicago, &c. E, Co 42 Allen (Mass.), 49 ; Shea ii. Sixth Ave. Wis. 654 ; Jackson v. Second Ave E Co R. Co., 62 N. Y. 180 ; Goddard v. Grand 47 N. Y. 274 ; Higgins v. Watervliet Trunk R. Co., 87 Me. 202; Rounds Turnpike Co., 46 id. 23; Cosgrove v V. Lackawanna, &o. R. Co., 64 N. Y. Ogden, 49 id. 225. SEC. 316. j ETJLE AS TO ASSAULTS, ETC. 1399 a lady, entered the car reserved for ladies, and the servant directed him to get into another car. This the plaintiff refused to do, and the assault complained of was committed in forcibly removing him. In defence it was urged that the servant exceeded his powers, and was not authorized to remove the plaintiff from the car, but only to direct him what car to take. Upon this question James, J., said : " That a master is not liable for the wrongful acts of his servant, un- less done in his service and within the scope of his employment, will not be disputed. If the iemploy^ who removed the iplaintiff is to be regarded as a brakeman unauthorized to perform any duties other than such as pertained to that office, and volunteered the act in question without other authority or direction, then the defendant was not liable in this case. But as brakeman he was an employ^ of the company, subject to its authority and the direction of its offi- cers ; and as such employ^ he was directed, by the person in charge, to see that gentlemen without ladies did not enter that car ; and it was in the performance of that service he did the act complained of It is ' true he was not ordered to remove persons from the car ; his orders were to notify gentlemen not in charge of ladies that such car was reserved, and direct them to cars forward ; so that in removing the plaintiff he clearly exceeded the orders given him. But this fact the plaintiff could not know ; as between him and the company, it was enough that the act was done in the prosecution of the master's busi- ness, and if the servant deviated from or exceeded his instructions, that fact did not excuse the master from responsibility. The order to the brakeman, and his performance, warrant the conclusion, even as a matter of law, that he was acting within the scope of the employment he was then set to perform, if persons disregarded his directions and persisted in entering that car. The defendant had the right to set apart a car for lady passengers, and exclude other persons from it ; if other persons, after notice, persisted in entering it, the defendant had the right to enforce their removal, using no more force than necessary for that purpose. The brakeman did no more than the master had the right to do under the circumstances, and the pre- sumption is that in doing it he was acting within the scope of his then employment. " A distinction is made between a special and a general service in some of the cases, but it is not clear that any such distinction is tenable. Thus, it has been held that where a person directs another to do a specific act, not pertaining to his general employment, the 1400 RAILWAYS AS OAEEIERS OF PASSENGERS. [caAP. XVIL master is only responsible for an aCtmal execution of the order, — a^ where a servant is sent to. drive a beast, trespassing upon the mas- ter's premises, out of a certain iield, that the master is not liable if the servant drives it elsewhere ; z' or if he is sent to distrain cattle, da-mmge feasant, that the master is not liable if they are distrained by him in any other manner.^ But the doctrine of these cases is wholly untenable, both upon principle and authority ; because the master having expressly directed the doing of the act from the wrongful execution of which injury resiults, he, in law, is treated as having authorized all that was done by the servant strictly in fur- therance of the end sought by his orders, and with a hondfde pur- pose on the servant's part to execute them ; and the rule applicable in cases of agency does not seem to apply. For instance, if a mas- ter sends his servant to drive another's cattle out of his lot, and while the servaint is engaged in this duty, he cajele^ly throws a stone at one of them, and lames or kills it, the master is liable for the injury. True, he did not direct the servant to throw the stone, or to injure or kill the cattle ; possibly he directed him to drive them out with the utmost care ; but by his order to the servant to do the act, he set in motion the agency that produced the mischief, and made it possible for the wrong to be inflicted, and must, in law, be re- garded as having authorized it.^ The question of authority does not depend upon the master's instructions to the servant, is not to be measured by the power expressly delegated to him, but aJso by the nature and character of the service with which he was intrusted, and the possible results of leaving the duty to be performed by him.* Baron Parke, in the case first cited, enunciated the true rule of a master's liability thus : " Whenever the master has intrusted the servant with the control of the carriage, it is no answer that the servant acted improperly in the management of it." The law presumes a master to be acquainted with the acts of his servant in the course of his business,^ and he is chargeable with liability for all his acts, done in the course of his employment, which are fairly in- » Oxford V. Pelter, 28 111. 434 ; Pritoh- Pooley, 6 CI. & F. 910, n. ; GaTretzen v. strd V. Keefer, 53 id. \\1. Duenekel, 50 Mo. 104 ; 11 Am. Rep; 405 ; 2 Lyons v. Martin, 8 Ad. & El. ' Howe v. Newraarcli, 12 Allen (Mass.), 49. » Sheau. Sixth Ave. R.R. Co., eaN.Y. < Joel v. Morrison, 6 C. &P. 501; 180 ; Higgins v. Watervliet Turnpike Co., Booth v. Mister, 7 id. 66 ; Wanstall v. 46 id. 23 ; Meyer v. Second Ave. R. R. Co. , Pooley, 6 CI. & F. 910, n. ; Sleath v. Wil- 8 Bosw. (N. Y.) 805 ; Jackson v. Second son, 9 C. & P. 612. ' Ave. R. R. Co., 47 N. Y. 274 ; Croft v. » Rex v. Almon, 5 Burr. 2686. Alison, 4 B. & Aid. 590 | 'WaMstall v. SEC. 316.] RULE AS fO ASSAUXTS, ETC. 1401 cident to the business and grow out of its execution.^ It is Hot essen- tial, in Order to charge the master, that the act should be necessary for the proper performance of the duty, or that it should be in con- fotmity to the master's directions ; ^ but if it was done in the course of , his employment, and arises from the manner in which the ser- vant undertook to, or in fact did, execute the duty assigned him, and it was an act in any sense warranted by the express or im- plied authority conferred upon him by the employment, the mas- ter is liable, even though the act was ill-advised, unnecessary and improper.^ When a person puts another in his place to do certain acts in his absence, he necessarily leaves him to determine for himself, accord- ing to his judgment and discretion, aecofding. to circumstances and exigencies that may arise, when and how the act is to be dOne, and trusts him for its proper execution ; consequently, he is answerablfe for the wrongful execution of the act, either in the manner or occa- sion of doing it, provided it is done bond f,d'e in the prosecution of his business, and within the scope of the servant's express or im- plied authority, and not frOnl mere caprice or wantonness, and wholly Otitside the duties imposed upon him by the master.* Thus, in an English case,^ the plaintifi", a passenger on the defetadants' line of failiA^ay, sustained injuries in consequence of being violently pulled out of a railway carriage by one of the defendants' portets, who acted under an erroneous impression that the plaintiff was in the wtong carriage. The defendants' by-laws did not expressly author- 1 Bryant v. Rich, 106 Mass. 180 ; Al- den v. Boston & Albany E. R. Co., 104 drich *. Boston, &c. E. K. Co., 100 Mass. Mass. 117 ; Sherley 4). Billings, 8 Bush 31 ; Higgins «. Watervlifet Turnpike Co., (Ky.), 147; Goddard v. Grand Trunk 46 N. Y. 23. R. ft. Co., 57 Me. 202 ; Garretzen v. ^ Limpusf. Gen. Omnibus Co., 7 C. B. Duenokel, ante ; Wanstallv. PcJoley, 6 C. (N. s.) 290 ; Minter v. Pacific E. E. Co., & F. 910, n ; Keith v. Ken, Hayes, 8 ; . 41 Mo. 503. Croft v. Wilson, ante; Shea v. R. R. Co., 8 Railisden v. Boston & Albany R. R. 62 N. Y. 180 ; Bryant v. Rich, 106 Mass. Co., 104 Mass. Il7 ; Howe v. Newniarch, 180 ; Higgins v. Watervliet T. Co., 46 12 Allen (Mass.), 49 ; Shea v. R. R. Co., N. Y. 23 ; Minter v. Pacific R. R. Co., 62 N. Y. 180 i Garretzen v. Dftenckelj SO 41 Mo. 503. Where the- master gives Mo. 104 ; Limpus o. General Omnibus general directions to his servant, trusting Co., ante; Sullivan v. R. R. Co-,, 11 Iowa, to the discretion of the latter, he may be- 421. ' come liable for his action ; but wien the * Limpus B. General Omnibus Co., directions are specific, and the servant 7 C. B. (n. .s. ) 290 ; Howe v. Newfliaroh, transcends his directions, the master does 12 Allen (MasS.), 49 ; Holmes v. Wake- not becottie liable. Pritchard v. Keefer field, 12 Allen (Mass.), 580 ; Suydaln v. 53 111. 117. Moore, 8 'Barb. (N. Y. ) 358 ; Weed v. » Bayley v. Manchester, &a. Ry. Co., Panama R. R. Co., 17 N. Y. 362 ; Rams- L. R. 7 C. P. 415. VOL. II. — 38 ■ 1402 BAIL-WAYS AS CARRIERS OF PASSENGERS. [CHAP. XVII. ize the company's servants to remove any person being in a wrong carriage, but they provided that no person should be permitted to enter any carriage or to travel therein without having first paid fare and taken a ticket, an4 that the' porters should act under the orders of the station-master. It was held by the court that the company was liable.^ In a New York case,^ the plaintiff, a boy twelve years old, jumped on the baggage-car of the defendants' passenger train, to ride down to the round-house. A quantity of wood was piled along the track. While the train was being backed down, and when it arrived at the wood-pile, the baggageman in charge of the train discovered the boy on the car and ordered him off. The boy responded that he could not get off because the wood was right there. The baggage-master, with an oath, kicked the plaintiff off the car, and, falling against the wood, one of his legs was thrown under the ear and crushed. A notice, as follows, was posted in the baggage-car : " No person will be allowed to ride in this baggage-car, except the regular train-men employed thereon. Conductors and baggagemen must see this order strictly enforced." Still anothef notice was printed in the posted time-cards as follows : " Train -baggagemen must not permit any person to ride in the baggage-car, except the conductor and news- agent connected with the train. Conductors and baggagemen will be held alike accountable for a rigid enforcement of this rule." In an action to recover for the damages inflicted by the injury, the court held that the defendants were liable. Countryman, J., in a very able and carefully considered opinion, reviewed the cases bear- ing upon these questions, and, among other things, said : " The ser- vant, in thus removing the plaintiff, was engaged in the line of his duty and obeying the instructions of the defendant; and to shield it from liability the instructions must have been reasonable and proper 1 Jeffersonville, &c. R. E. Co. o. Rog- off by the conductor or brakeman and was ers, 38 Ind. 116 ; 10 Am. Rep. 103 ; Earns- injured, could recover therefor. See also den V. Boston, &c. R. R. Co., 104 Mass. Penn. R. K. Co. v. Toomey, 91 Penn. St. 117 ; 4 Am. Rep. 117 ; Holmes v. Wake- 256, where it was held that a railway field, 12 Allen (Mass. ), 580. company was liable for injuries inflicted by ' Bounds V. Del. & Lackawanna R. R. a conductor in rempving a trespasser from Co., 5 T. & C. (N. Y.) 475, 64 N. Y. the platform of a car. But see Allegheny 129. See also Hoffman v. N. Y. fcen- Valley R. R. Co. v. McLain, 91 Penn. St. tral, &c. R. E. Co., 87 N. Y. 25, 41 Am. 442, where it was held that a railway com- Rep. 25, where it was held that a boy pany is not liable to a passenger who is eight years old who had jumped upon the wrongfully removed from the cars upon steps of a passenger railway and sat on which he has a right to ride. But this is the platform to steal a ride, but was kicked hardly accurate. SBC. 316.] EXILE AS TO ASSAXILTS, ETC. 1403 with reference to the rights of the plaintiff, and must have heen executed, under all the circumstances, in a reasonable and proper manner. Having made suitable regulations, the defendant was also bound to see that they were properly executed. The principal must nebessarily be answerable within reasonable limitations for the man- ner in which his instructions are carried jnto effect. . . . And the principal must necessarily be bound by any lack of judgment or dis- cretion of the agent, whereby he acts improperly and inflicts un- necessary injury."^ The fact that the order is proper, and only cojatemplated a proper execution on the part of the servant, is of no account. Having clothed the servant with authority to do an act at all, the master is bound at his peril to see that it is properly executedj- and is liable alike for mistakes of judgment, or infirmity of temper, on the part of, his servant. Thus, a driver of horse-cars, whose duty it is to keep tres- passers from riding on the platform, would naturaljy be expected to execute the order in a proper and lawful manner; but if he in fact executes it in an improper and unlawful manner, the master is liable therefor, because he takes the risk upon himself, by reposing any authority at all in the servant to do an act which, if improperly done, may result in injury to others. In a case of this character,^ the plaintiff, a bo^ of ten years of age, wrongfully got upon the defend- ant's street-railway car while it was in motion, and was permitted to ride some distance, when, while the car was running at such a rate of speed as to make it unsafe for him to do so, he was ordered by the driver to jump off, which he did, and in doing so was thrown down, and his right arm being thrown under the car was run over and crushed, so that amputation was rendered necessary; a,nd the court held that the defendant was responsible for the injury, the order of the driver " to jump off," considering the age of the plaintiff, being equivalent to a forcible Ejection.? 1 Lbvett V. Salem, &c. E. Co., 9 Allen from passingacross the street on the walk. (Mass.), 557 ; Holmes v. Wakefield, 12 The plaintiff, being desirous of. passing, Allen (Mass.), 580 ; Kline v. Central Pac. stepped upon the platfrom of the car for B. Co., 37 Cal. 400; Sanford v. Eighth that purpose, when the driver pushed her Ave. R. Co., 23 N. Y. 343. off, and in falling, she broke her arml 2 Lovett V. Salem, &c. B. Co., 9 Allen The court held, that inasmuch as it was (Mass.), 557. ' the duty of the driver to keep trespassers 3 In Shea v. Sixth Ave. R. Co., 62 off the platform, he was acting in the N. Y. 180, one of the defendants' horse- scope of his employment, and that the de- cars was standing at the corner of a street fendants were liable for the assault, in New York, so as to prevent persons 1404 RAILWAYS AS CAEEIEES OP PASSENGEES. [CHAP. XVH. In a Missouri case,^ the application of this rule was well illustrated In that case the defendant was the proprietor of a gun store, and his clerk, upon one occasion, when showing a gun to a customer, at his request, and being informed by the purchaser that he would not pur- chase the gun unless it was loaded, loaded the gun, and, while being examined by the customer, it was accidentally discharged and in- jured "the plaintiff, who was sitting, at a window on the opposite side of the street. The master had expressly instructed the servant not to load any of the fire-arms, and it was urged in defence that the act of the servant being in conflict with, and contrary to the master's orders, it was not an act within the scope of the servant's authority ; but the court held that notwithstanding the express orders of the master, the act was done-in the prosecution of his business, and there- fore was within the scope of his authority.^ "Where the act is within the scope of the servant's authority, ex- press or implied,, it is immaterial whether the injury resulted from his negligence, or from his wilfulness and wantonness.^ Nor is it necessary that the master should have known that the act was to be done. It is enough if it was within the scope of the servant's author- ity. Thus, where a servant of a railway company employed to clean and secure its cars, and keep persons out of them, kicked a boy eleven years old from a railing, while the cars were in motion, whereby he was thrown under the cars and killed, it was held that the act, although in nobody's line of duty, being done in the course of the servant's employment, the company was chargeable therefor.* A master cannot screen himself from liability for an injury com- mitted by his servant within the line of his employment, by setting up private instructions or orders given by him, and their violation by the servant. By putting the servant in his place, he becomes responsible for all his acts within the line of his employment, even though they are wilful and directly antagonistical to his orders. The simple test is, whether they were acts within the scope of his employment ; not whether they were done while prosecuting the 1 Gamtzen v. Duenckel, 50 Mo. 104; Co., 64 N. Y. 129; Goddard v. Grand 11 Am. Rep. 405. Tnink R. R. Co., 57 Me. 202 ; Holmes v. 2 Croft V. Allison, 4 B. & Aid. 590 ; Wakefield, 12 Allen (Mass.), 580 ; Bryant MiKter V. Pacific R. R. Co., 41 Mo. 503. v. Rich, 106 Mass. 180 ; TuUer v. Voght, ' Weed V. Panama R. R. Co., 17 N. Y. 13 111. 277. 362; HoweD.Newmarch, 12 Allen (Mass.), * Northwestern E. E. Co v Hack 49; Shirley v. Billings, 8 Bush (Ky.), 147; 66 111. 238; Rounds b. Delaware, &c. R. R. Ramsden v. Boston, &c. R. R. Co., 104 Co., 64 N. Y. 129 ; Peck ®. N Y Con- Mass. 117 ; Rounds v. Del. &Lack. R. R. tral R. R. Co., 70 N. Y. 587. SEC. 316.] RULE AS TO ASSAULTS, ETC. 1405 master's business, hut whether they were done hy the servant in fur^ therance thereof, and were siwh as may fairly he said to have been au- thorized by him. By authorized is not meant authority expressly conferred, but whether the act was such as was incident to the per- formance of the dutiea intrusted to him by the master, even though in opposition to his express and positive orders. Thus, when a horse railroad company, among other things, requires its drivers to k^ep trespassers off from the platform, it is liable for the act of the driver in expelling a person therefrom, even though the act is wilful aTid wanton, and although the person expelled- is not a trespasser.^ The master can never escape liability for an abuse, of authority by the servant;* therefore, the question always is, whether there was' any authority, express or implied, on the part of the servant to do the act ?,^ If soj the master is liable ; if not, he is not liable, even though the act was done by the servant while performing his master's service.* In ascertaining this feet, the nature of the service, its character and incidents, as well as the orders of the master, if any, are all to be considered. To illustrate: a person employed as a conductor upon a railroad, whose duty it is to coUect the fares of passengers, is, even though not specially directed so to do, by his employment and the very nature of his duties, impliedly clothed with authority to eject a person from the cars, who shall neglect or refuse to pay his fare, and it is one of his duties, iinplied from the very nature of the employment and the character of the service ; therefore, if in the performance of this duty, he uses more force than is necessary ; * pr if he assaults or insults a person who has in fact 1 Shea V. Sixth, Ave. B. E. Co., 62 dis©harge the gun hy the defendants, they N. Y. 180. were liable for the manner in which bo ^ Higgins V. 'Watervliet Turn. Co., 46 dJsebarged it, whether in violation of t^elr N. Y. 23; Shea v. Sixth Ave. E. E. Co., instructions or not. Enosii. Hamilton, 24 6 N. Y. 180 ; Phila. & Bead. E. R. Co. v. Wis. 658; Homer®. Lawrence, 37 N. J. I* Derby, 14 How. (U. S.) 468 ; Steam Tow 46; Case«. Mechanics' Bank, 4 N. Y. 166; Boat Co. V. Phila., &e. E. R. Co., 23 id. Hynes v. Jungren, 8 Kan. 391 ; Cosgrove 2G9. »■ Ogden, 49 N. Y. 255; Tucker v. Wool- 8 Shea V. Sixth Ave. E. E. Co., mte; sey, 64 Barb. (N. Y.) 142; Ryan v. H. R. Baldwin v. Oassella, 21 "W. R. 16. , R. R. Co., 33 N. Y. Superior Ct. 137 j * In Oliver v. Northern Transportation North Rivev Bank ». Aymar, 3 Hill Cb., 3 Oreg. 84, the defendants' servant in- (N. Y.), 262 ; McClanathan v. R. R. Co., jured the plaintiff by the carel'ess discharge 1 T. & C. (N. Y.) 501. of a signal gun. The defendants claimed ^ Jackson v. Second Ave. E. R. Co., 47 that they were not liable, because the ser- N. Y. 274; 7 Am. Rep. 448 ; Higgins ». yant disobeyed their instructions as to the Watervliet Turnpike Co., 46 N. Y. 23; filing of the gun. The court held that, 7 Am. Eep. 293. inasmuch as the servant was authorized to 1406 RAILWAYS AS CAERIEES OF PASSENGERS. [CHAP. XVII. paid his fare, and is lawfully entitled to be upon the train ; ^ or if he ejects a person from the train at a place where, by law, he has no rit^ht to eject him, — the corporation is liable for his acts as much as though the act had been specially directed and authorized by it. Sec. 317. Damages for InjurieB to Passengers.^ In actions for damages resulting from personal injuries, it may be said that the person injured is entitled to recover all the actual damage which is sustained, which includes loss of time, expenses of medical attend- ance, nurses, as well as for bodily pain and anguish of mind induced by the hurt, and all the damages present and prospective which are the natural and proximate consequences of the act done and injuries received. 3 Not only present loss or that which has already accrued 1 Goddard v. Grand Trunk K. Co., 57 Me. 202 ; 2 Am. Bep. 39 ; Peck v. N. Y. C. R. Co., 6 Th. & C. (N. Y.) 436; Lira- pus V. Omnibus Co., 7 C. B. N. s. 290 ; Seymour v. Greenwood, 7 H. & N. 355 ; Moore v. Railway Co., 21 W. R. 145 ; Bayley v. Manchester, &c. Ry. Co., L. R. 7 C. P. 415. 2 As to damages for injuries resulting in death, see post, § 414. ' Rowley v. London, &o. Ry. Co., 5 C. P. Div. 280 ; Tatten v. Penn. R. Co., 11 Fed. Rep. 564 ; Indiauapolis, &c. R. Co.. V. Stables, 62 III. 313 ; Ohio, &c. R. Co. V. Dickinson, 59 Ind. 317 ; Pittsburgh, &c. R. Co. V. Sponier, 85 Ind. 165 ; Salen 1'. Virginia, &c. R. Co., 13 Kev. 106 ; Fry V. Dubuque, &c. R. Co., 45 Iowa, 416 ; Bay Shore R. Co. v. Harris, 67 Ala. 6 ; Indianapolis, &o. R. Co. v. Bimey, 11 111. 391 ; Porter v. Hannibal, &c. R. Co., 71 Mo. 66. Jt seems that the value of medical ser- vices rendered to the injured person may be recovered though they were gratuitously rendered, since it must be presumed that the physician intended to aid the injured party and not the defendant. Indianapolis V. Gaston, 58 Ind. 277 ; Pennsylvania Co. V. Marioi;), 104 lud. 239. So also the fact that the salary of a person sustaining personal injury through the negligence of another is continued by his employer dur- ing the time he is disabled cannot mitigate the damages that the injured party may recover in an action therefor. Ohio, &c. B. Co. a. Dickinson, 59 Ind. 317. Where a young man, thirty years of age. engaged in an employment which had a regular system of promotions, and earn- ing $540 a year, was permanently dis- abled, a. verdict of $11,000 in an action for damages ther«for was held not to be excessive. Belair v. Chicago, &c. R. Co., 43 Iowa, 662 ; Delie v. Chicago, &c. R. Co., 51 Wis. 400. A verdict for $8,000 for the loss of a hand was held not to be excessive. Chicago, &c. R. Co. v. Wilson, 63 111. 167. Where the plaintiff, a girl of seven years of age, was run over by a rail- road car, and had one leg cut off and her right hand so crushed as to cause the amputation of two finger?, besides being otherwise injured, a verdict for $8,100 was held not to be unreasonable. Chicago, &o. B. Co. V. Murray, 71 lU. 601 ; Chi- cago, &c. R. Co. V. Becker, 84 111. 483. In an action for permanent injuries to the person, courts will seldom disturb the award of damages, where the evidence tends to support the verdict. Thus, the plaintiff, when injured, was a farmer, sixty-two years of age, and previous to the injury he was an able-bodied, healthy man, possessed of a strong constitution, working regularly on his farm, and able to do "a good day's work — a man's work;" and there was evidence which would have justified the jury in finding that the plaintiff's injury was permanent, and would practically disable him for labor during the remainder of his life. It was held that a verdict for $1,600 dam; ages should not have been set aside as excessive. Duffy v. Chicago, &c. R. Co., 34 Wis. 188. Where the plaintiff suffered SKC. 317.] DAMAGES FOR INJURIES TO PASSENGERS. 1407 from the incapacity of the injured party to attend to his ordinary pursuits and the expense which he has incurred for medical atten- injuiies that disabled him for life, and which were attended with great bodily suffering, a verdict of $9,000 was held not to be excessive. Deppe v. Chicago, &c. K. Co., 38 Iowa, 592. In a New York case, evidence was given tending to show that the plaintiff, a man about forty years old, in the full vigor of health, was injured by a collision which occurred upon 'the defendant's railroad ; that besides many lesser injuries the accident produced a concussion of the spine, the result of which has been chronic inflammation of the mem- branes which envelope' the spinal cord ; that the disease was a progressive one ; tKat it had already largely impaired his faculties, both mental and physical, and that it would probably progress until paralysis and premature death ensued. It was held that a verdict in the plaintiff's favor for $30,000 would not be set aside as excessive. Harrold v. New York El. R. Co., 24 Hun (N. Y.), 184. Just before the injury complained of, th« plaintiff was a laborer, a strong, healthy man, thirty- four years of age, and he has a wife and four children. The injury made it neces- satry to amputate one leg above the knee ; at the time of the trial, nearly a year after the accident, he was unable to do any work, and he testified that if he walked, ' stood, sat, or kept his leg down for any length of time he became dizzy. In view of these facts, and of the physical and mental suffering involved in the injury, the court held a verdict of $11,000 did not show such evidence of prejudice, passion, or improper bias in the jury as justified it in reversing a judgment for that sum. Berg V. Chicago, &o. R, Co., 50 Wis. 419. In view of the plaintiff's age and business at the time of the injury, his previous ability to earn money by his labor, the permanent disablement of his right hand by the accident, the pain and suffering endured, the court held that a verdict for $4,500 should not be disturbed. Schultz V. Chicago, &c. K. Co., 48 Wis. 475. Where the deceased was a young man, un- married, and earning about $25 a month, with two buothers and a sister residing in Germany, a verdict of $5,000 was held not excessive. Bierbauer v. New York Cen- tral R. Co., 15 Hun (N. Y.), 559 ; affirmed, 77 N. Y. 588. In an Illinois case, a young woman, in attempting to go upon a railway-car, stepped into an opening in tl^e station -platform, injuring her knee and leg, and it appeared that, at the trial, about three years after the accident, she had not fully recovered, but yet walked naturally and gracefully, and it was not probable the injury would be permanent, and she was not, in consequence of the injury, deprived of any bjisiness or calling by which to earn money, and it also "ap- pearing that her poor health at the time of the injury prevented as quick a recoveiy as otherwise might have been expected, and it not appearing that she had suffered any extreme pain, or the injury was serious, it was held that $2,500 damages was excessive. Chicago, &o. B. Co. v. Pay- zant, 87 111. 125. In a California case, a verdict for $10,000 for an injury which necessitated the amputation of an arm, where the defendant was guilty of gross negligence, was held not excessive. Robin- son V. Western Pacific R. Co., 48 Cal. 409. In an action by a female passenger against a railroad company for carrying her beyond her station, the plaintiff had judgment for $1,000. There was no circumstance of malice, insult, wantonness, violence, op- pression, or inhumanity practised by the company's servants towards the plaintiff, but, on the contrary, their conduct was polite and considerate. It was held that the judgment was excessive in amount, and must, for that reason, be reversed. Trigg V. St. Louis, &c. R. Co., 74 Mo. 147. In an action brought by a brakeman for personal injuries resulting in the loss of the thumb and first finger of the right hand, by reason df which he was laid up a little over a month and could do but little work for three or four months, a ver- dict of $6,500 was held to te so excessive as to show that it was given under the in- fluence of passion or prejudice, and ought to be set aside. Kansas Pacific R. Co. v. Peavey, 29 Kan.' 169. But a verdict of $8,000, for the death of a passenger was held not excessive. Cook v. Clay Street 1408 BAILWAYS AS CARRIERS OP PASSENQEKS. [CHAP. XVII. tion or other necessary outlay, but, as only one. action can be brought and only one recovery had, it is proper to include in the estimate of daxa^ges compensation for whatever it may be reasonably certain will result from future incapacity as a consequence of his injury; so, also, his ■ loss of capacity for work or attention to his ordinary business must be included, whether it be physical or mental, present or prospective.* Very little can be said with certainty as to damages for personal injuries inflicted by negligence. Loss of time during the cure, and expenses incurred in respect of it, are of course matters of easy calculation , but for the pain and suffering undergone by the plaintiff, which are also a ground of damages, no adequate measure exists, and the compensation therefore is necessarily left to the judg^ ment and discretion of the jury. And in this point such an action differs from one brought by the personal representatives where a death has ensued. Any permanent injury, especially when it causes a disability for future exertion, and, consequently pecuniary loss, is $,lgo a ground of dajpage;. This is one of tjie cases in which damages most signally fail to be a real compensation for the loss sustained. In one case, Parke, B., said: "It woi^ld be most unjust, if, when- ever an accident occurs, juries were to visit .the •unfortunate cause of it with the utmost amount which they think is equivalent for the mischief done. Scarcely any sum cou.ld compensate a laboring man for the loss of a limb, yet you do not in such a case give him enough to maintain him fbr life. No rule can be laid down in such a case; and although a jury are frequently cautioned not to let their verdict be influenced by tbe^ poverty of the plaintiff' and the wealth of the Hill E. Co., 60, Cal. 604. So. i verdict. Vv Mcliia, 82 Ind. 435. A verdict fop for $3,500 for persojml injuries was held, 11,400 damages, m an actioD, to recover not excessive, Klutta », St. Louis, &e. R. for gross negligewe, causing the death o{ Co., 75 Mp. 642. The, sum of $2,500 was the plaintifPs intestate, even if the Su- held not to he excessive damages for the preme Court may review the case at to breaking of the arm of an old lady, sixty, damages, was held not to he so large as, to two years, of age, the injury being perma^ require ^ reversal. Chicago, &c. B. Co. v. nent. Pittsburgh, &c. R. Co. «^ Sponier, Bonifield, 104 111, 223. So, a verdict for 85 Ind. 165. A verdict of $7,000 for a, $5„ 000 actual damages foi- personal iiyu- personnl injury to a passenger was held not ties, caused by tl^e negligence of the em- . excessive. Lam,bkin v. Southeastern Ry, ployes of a, railway company, was held not Cp., Ij, B- 5 App. Cas. 352. TSThere, with- to be so excessive ^s to require a reversal put fault, the plaiutiflTs son, aged sixteen, therefor. Houston, &o. E. Co. v. Boeh.m years, was seriously mjured by the negU.> 57 Tex, 152. ' '" gent management pf a train, so as to ba i Hutchinson pn Carriers (2d ed. ), unconscious foi; a time and disabled for § 806 ; Toledo, fe R. Co. v. Baddely 54 some weeks, » yerdict for $530 was held 111. 1ft ; Kansa,s, &o. R. Co. v Pointer 9 BPt, excessive., Indianapolis,. &c. R. Co. Kan, 620. See also cases cited further on. SBC, 317.] DAMAGES FOR INJURIES TO PASSEJSGERS. 1409 defendant, yet the caution is probably sejdom much attended to." ^ JUird OoLERiDGE, in a lea,ding English case,^ laid down the rules which should guide the jury in such cases, most admirably. He said to the jury, after stating that there was no answer to the prima fade case of aegligence, " It is therefore, really and truly in fact, a mere question of the assessment of ~ damages, >— what, uuder the circum- stances, it is fair and reasonable the defendants should pay to the plaintiff by way of oompens?btion for the injuries be has sustained. ... It is to basuch compensation as, under all tbe'eireumstancea of the case, the jury who have to assess it think is fair and reasonable ;. and with every desire to assist you ... I am afraid anything- more definite or intelligible I am unable to lay down. It is a matter which, really, the conimon-sense of the country, as represented by you twelve gentlemen in the jury-box,, must determine. . . . An ab- solute compensation js not the true measure of damages in this case ; ... it is not to be an absolute compensation, but a fair and reason- able amount of damages under the eircumstanoes of the. case. Now what is really that, fair and reasonable amount ? It niust be made up of several ingredients.. I do not mean that if you give, I will t^ke a round sum, say £100, . . . you must go so far as j;o give £?5 for pain and suffering, £25 for loss and damage, £25 for future suffer- ing,' and £25 for the oha.nQe of riot doing work again. By saying the tompensation consists o| so many ingredients I do not mean to say you must put a fixed sum against each of these, bulj^ there are certain leading consideratioijs to be taken into account by you in arriving at the lump sum which at last it will be your duty to assess in tjii^ case. Now, one of these is the pain and suffering ; as to tljat there is no question; . . - pain and suffering of a most acute kind Dr. Phillips has sustained-, that has not been seriously disputed, and compensation for that pain and suffering he is undoubtedly entitled to. That is a serious, manifest, and undisputed fact. Then there is the loss, at any rate for two years, of his business. Now, what is that business ? " He then directed the attention of the j ury to the evidence as to the plaintiff's professional income, the effect of which wag to show, that during the three years before the accident, his net earnings, after deducting all the expenses incurred in carrying on his profession, had been about £5,000 a year. He then proceeded as follows ; " But then it is said that is too much, because some, of these are large pay- 1 Ashworth V. Southeastern - Ry. Co., ^ phillips v. London, 4o. Ry. Co., 42 18 Q. B. 104, L. T. Eep, n. s. 6. ' 1410 RAILWAYS AS CARRIEES OF PASSBNGBES. [CHAP. XVII. ments which have come from nine clients, and in the nature of things it is not likely that these sums will recur. This £1,300 from one person in three- years, that £400 from another in two years, £360 from another in two years, and nearly £500 from another in three, all these and other sums are not likely to recur. Now, I do not see at all why the confidence of the gentlemen who make these large • payments should diminish, or their generosity either, and I do not quite see why, in the class of patients this gentleman had, people who send £1,000 and £500, and so on (£5,000 in one case) to their doctor, without inquiry, to pay fpr the number of visits that had been had, I do not see why the same gentleman should not pay, £5,000 over again ; ... it is a lucky thing, if Dr. Phillips should recover, that his practice is among patients who do not care about money. ... I really do not see why these should be the only nine people in the world who do these things, and who will continue to do them, and why, if they cease to do so, they should not be suc- ceeded by others equally generous ; but you must give it such weight as you think fit. Subject to that observation it comes to this, that it is about £5,000 a year, and it has been an increasing practice. . . . There is no doubt that from that time in 1877 [the time of the accident] to this he has not earned a shilling, and for that some very considerable compensation is to be awarded by 'the company. Now then comes a far more important question, and that is, what is_ to be his future ? " ^ He then commented on and compared the evidence given by the medical witnesses with regard to the condition of the plaintiff, and J In an action against a railway com- as one of the results of the wound. Den- pany by a lady passenger, for a personal ver, &c. R. Co. v. Harris, 122 U. S. 197. injury caused hy gross negligence, and In action for damages against a railroad where it appeared the injury was severe, company, the admission of testimony, not her spine being injured permanently, she as an element of dtoiage but in the nature being a person of education and a teacher of an index to the pain and sufferin-r of by profession. Sl8,958 damages, while con- the plaintiff, that the injuries required the sidered large, was held not so excessive as use of opiates by her, and she was thus warrant a reversal of the judgment acquiring the opium habit, that she had Illinois Central R, Co. v. Parks, 88 111. , had great pleasure in her household duties, 873. In an action to recover for injuries but has not and never will have that plea^ caused by gunshot wounds inflicted by sure again, and that from the effects of the defendant s servants, evidence of the loss nervous prostration resulting from the in- ot power to have offspring, resulting as a jury she has not the energy to work or to proximate consequence of the injuries, may enjoy society, is held not to be erroneous, be received and considered by the jury as Chattanooga, &c. R Co. v. Liddell, 85 Ga. an element of damage, and this although 482. the declaration does not specify such loss SEC. 317-3 DAMAGES FOR INJURIES TO PASSENGERS. 1411 the opinious which they expressed as to ihe possibility of recovery. He then proceeded as follows : " Gentlemen, that redly is ihe whole case. I do not know that, I could usefuUy occupy your time any further. I have placed before you the principles upon which you ought to give this compensation. I have placed before you, as far as . I can, the law which you are to take into consideration in granting that compensation, and now J leave it to you, under all the circum- stances of the case, to give such fair and reasonable compensation to Dr. Phillips as you think he deserves, I do not mean morally, but as you think the circumstances of the case warrant you in giving. Of course, in awarding that compensation you will be mainly influenced by the view you take of the probability of his being able in eighteen months' or two years' time, or possibly even in less, or it may be more, to resume the lucrative practice which certainly, for a time, beyond all question, he has been deprived of by the action of the defendants. I think I may direct you to bfe good enough to find for the plaintiff, and your duty is to say what amount of damages, under the circumstances, you will give." ' As to expenses, he directed the jury to give what they thought fair and reasonable, adding : " If you think that he was put to any extra expense, that his living, his journeys, or his carriages or horses were seriously increased, or that he was put to expense by the action of the company, that is an element that you ought to take into your consideration. He puts it at £1,000, and you will say, upon the whole, whether you think that is' too much or too little." The jury found a verdict for the plaintiff for $80,000 damages, and a new trial was refused by the appellate courts. Damages for hodily and mental pain and suffering induced by the injury, according to its intensity and duration, are proper elements, and are necessarily so immeasurable, and incapable of strictly accu- rate estimation, that they are left largely to the discretion of the jury.-' But unless physical injury is connected with the mental pain 1 Phillips V. South-Western Ey. Co., allow, in estimating the flamages, not only 4 Q. B. Div. 406 ; Morris v. Chicago, &e. for the direct expenses incurred by the R. Co., 45 Iowa, 29 ; Chicago, &o. R. Co. plaintiff by reason of the injury, but also V. Elzeman, 71 111. 131 ; Mason i: Ells- for the privation and inconvenience he is worth, 32 Me. 271 ; McLaughlin v. Cony, subjected to, and for the pain and suffer- 77 Penn. St 109 ; "Wade v Blackwood, ing he has already endured bodily and 48 Ark. 396; Sheridan v Hibbard, 119 mentally, and which he is likely to experi- 111. 307. The jury are properly instructed, ence, as well as the pecuniary loss he has in an action fbr a negligent injury that, it sustained and is likely to sustain during they find for the plaintiff " they should the remainder of his life from his disabled 1412 KAIL-WAYS AS CAEBIEES OF PASSENGERS. [CHAP. XVII. there can be no recovery therefor, as the latter alone does not con- stitute either a ground of action or an element of damage, unless accompanied by circumstances of malice, insult, or inhumanity.^ In a note to Mayne on Damages,^ we said : " But we do not apprehend that the rule has any such force as to enable a person to maintain an action where the only injury is mental suffering, as might be thought from a reading of the loose dicta, and statements of the court in some of the cases. So far as I have been able to ascertain the force of the rule, the mental suffering referred to is tJiat which grows out of, the sense of peril, or the mental, agony at t/ie. time of the hap- pening of the accident, and that which is incident to and blended with the hodilij pain incident to the. injury, and the apprehension and anxiety thereby induced. In no well-considered case has it ever been held that mental anguish alone, unaccompanied by an injury to the person, afforded a ground of action ; " ^ and this has been cited by eondition." Scott v. Montgomery, 95 Peon. St. 444. Where the injury is perma- nent, compensation is properly allowed for the pain which it is reasonably certain the plaintiff will suffer ra future. Filer v. N Y. Central R. Co., 49 N. Y. 42 j Frink v. Schroyer, 18 111. 416 ; Memphis, &c. R. Co. V. Whitfield, 44 Miss. 466; Holyoke v. Grand Trunk R. Co., 48 N. H. 541 J Fry v. Dubuque, &,c, R. Co , 45 Iowa, 416 ; Spicer v. Chicago, &fi. R. Co., 28 Wis. 580 ; Kendall v. City of Albia, 73 Iowa, 241 ; 34 N. W. Rep. 883. 1 Quigley v. Central Paoifio R. Co., 11 Nev. 350, Illinois Central R. Co. v. Sutton, 53 I11.V 397 ; Johnson v. Wells, 6 Nev.'224; Indianapolis,, &c. R. Co. v. Stables, 62 III. 313. In the case of Bovee V. Danville, 53 Vt. 190, in which the in- jury caused the woman to give premature birth -to twins, it was held that any " m- jured feelings following the miscarriage, but not a part of the pain naturally at- tending it, are too remote to be oonsidersd as an element of damage. The court observed that "if, like Rachel, she wept for her children, and would not be com- forted, a question of continuing damage is presented too delicate to be weighed by any scales which the law has. yet invented." Mental anguish arising from the nature and character of the assault is a proper panied an injury are to be estimated as well as its physical effects, even in cases where exemplary damages do not he. Mc- Kinley i>. Chicago, &c. R. Co., 44 Iowa, 314. In an action by a passenger against a carrier for personal iiyuries, plaintiff's evidence tended to show that- threats of personal violence made by the conductor induced him to jumji from i;he train. The court held that an instruction, that plain- tiff could recover damages for the threats whether any actual physical injury re- sulted therefrom or not, and that plaintiff could recover for mental anguish alone is erroneous and ground for reversal. Spohn V- Missouri Pao. R. Co. (Mo.|, 22 S. W. Rep. 690. 2 Wood's Mayne on Damages, p. 74. The mental suffering engendered by the humiliation and insult occasioned where a passenger is unlawfully expelled in the presence of his fellow-passengers, is a proper element of damage. Smith •». Pitts- burgh, &c. R. Co., 23 Ohio St. 10 ; post, § 364. But this is clearly a different class of cases. ■ « Canning v. Williamstown, 1 Cush.^ (Mass.) 452 ; Joch v. Dankwardt, 85 111.' 333 ; Lynch ». Knight, 9 H. L. Cases, 577, 598; Johnson ». Wells, Fargo, & Co., ' 6 Nev. 225 ; Treese v. Tripp, 70 111. 503 ; Meidell w. Anthis, 71 111. 241 ; Blake v. element of compen-satory damages, and the Midland Ry. Co.,'lO Eng L & En 442 outrage and indignity which have accom- Since the author wrote the language above SEC* 317. J DAMAGES FOB INJURIES TO PASSENGERS. 1413 the courts of several States with approbation. In ah action, there- fore, for the death of a child or other relative the mental anguish of the parent is not an element of damage.^ The age and oecupation of the injured person,^ the value of his services, that is, the wages which he has earned in the past, wheth^er he has , been employed at a fixed salary,^ or as a professional man. quoted there hav? been a number of cases holding that where, by the Oegligeno^ of a telegwph company in transmitting or de- livering a message, the sender or receiver is made to undergo mental suffering, as where a father is kept from the bedside of his dying so'n, compensatory damages can be recovered for such auSfering, altho'ilgh it is unaccompanied with any physical or pecuniary injury whatever. Sorelle v. W. U. Telegraph Co., 55 Tex. 310 ; Stuart v. W. e. Telegraph Co., 66 Tex. 680 ; Wil- son V. Gulf, &c. R. Co., 69 Tex. 739 ; W. U. Telegraph Co. v. Cooper, 71 Tex. 607 ; 10 Am. St. Rep. 772 ; Wadsworth t. W U, Telegraph Co., 86 Tenn. 696 ; 6 Am. St. Rep. 864 ; Reese v. W. U. Telegraph Co., 123 Ind. 294 j Beasley v. W. XJ. Tele- graph Co., 39 Fed. Rep. '18J ; Chapman V. W. U. Telegraph Co. (Ky. 1890), 13 S. W. Rep, 880; Thompson on Electricity, §§ 379 et seq. ; article " Telegraphs," in Am. & Eng. Ency. Law, where the author- ities are all collected. But such cases do not, it is believed, state the true doc- trine. The error in the vie<ifs stated by them is well exhibitted in the very able opiflion, of Cooper, J., in W.U. Telegraph t/o. V. Rogers, 68 Miss. 748. And in the case of Chapman ». W. U.'Telegraph Co., 88 Ga. 763, Lumpkin, J., In a very able opinion, condetains the doctrine set up in the cases referred to. The dissenting opinion of Lurton, G. J., in "Wadsworth V. W. U. Telegraph Co., 86 Tenn. 695 ; 6 Am. St. Rep. 864, is also a strong expo- sition of the true doctrine. See. also Gulf, &c. E. Co. V. Levy, 69 Tex. 568, where the court quotes with approval the rule stated in the text from Wood's Mayne on Damages, p. 74, and goes on to Say : " We are referred to the case of Sorelle ». W. TJ. Tel. Co., 55 Tex 310, as an authority for the proposition that an action for men- tal suffering alone may be maintained. The opinion in that case does not seem to con- tain the proposition necessary to sustain this action ; but we are of the opinion that it cannot be sustained upon the principle, nor Upon the authority bf adjudiciatefl oases." 1 Webb V. Denver, &c. R. Co. (Utah, 1890), 24 Pac. Rep. 616 ; 44 Am. & Eng. R. Cas. 683; Blake v. Midland Ry. Co., 18 Q. B. 83 ; 83 E. C. L. 93,; Howard Co. v. Legg, 93 Ind.. 532 ; Mobile, &o. R. Co. v. Watley, 69 Miss. 145 ; Munro v. PaC. Coast, &c. Co., 84 Cal. 515 ; 18 Am. St. Rep. 248 ; post, Chapl!er XXVI. a Whalen v. St. Louis, &c. R. Co., 60 Mo. 323. " Simonson !'. Chicago, &c. R. Co., 49 Iowa, 87 ; Mclntyre v. N. Y. Central E. Co., 37 N. Y. 287 ; Grant v. Brook- lyn, 41 Barb. (N. Y.) 381 ; Kline v. Kan- sas, i&c. R. Co., 50 Iowa, 656. Mere speculative profits are not to bo consid- ered ; damages in cases of personal injury tnay be ascertained by the reduction of plaintiif's earning powers, mental or physi- cal, and therefore reference should be had to his business at the time of the accident. Penn. R. Co. v. Dale, 76 Penn. St. 47. In Arkansas, it was held that a passenger who is injured by the negligent running of a train, or on account of an insufficient platform at which he is landed, is entitled, as damages, to compensation for the bodily injury sustained, the pain suffered, the cft'Cct of the injury on his health, according to its degrees and probable duration, the expenses of his sickness resulting from the injury, and of attempting to effect a cure, and the pecuniary loss sustained "by reason of inability to attend to his busi- ness or profession. St. Louis, &e. R. Co. ». Cantrell, 87 Ark. 519 ; Pittsburgh, &o. R. Co. ■». Andrews, 39 Md. 329; Mickay v. Missouri Pacific R. Co., 18 Fed. Rep. 236. In a Missouri case the trial court, in an action for personal in- juries, instructed the jury that if they 1414 RAILWAYS AS CAREIEES OF PASSENGERS. [CHAP. XVII. are proper to be considered.^ He is entitled to recover for the dis- abling eifect of the injury upon his capacity to earn, not only up to should find for plaintiff, they should allow, "first, the expenses incurred by the plaintiff in attempting to cure himself of his injuries ; second, his loss of time ; third, his bodily pain and suffering and mental anguish," etc., etc. It was held that this instruction, while not as defi- nite and precise as it might hare been, was not open to the objection that it assumed that plaintiff had incurred ex- pense, lost time, and endured bodily pain, etc., and the judgment should not be reversed for the mere want of precision. Klutts V. St. Louis, &c. E. Co., 75 Mo. 642; la a Georgia case the suit being hy an infant child for damages from wounds and bruises that were cured in a few months, and from the loss of the sense of hearing, alleged to have been a conse- quence of the injury, a charge on the measure of damages in the terms follow- ing was substantially correct: "There is no known rule of law by which wit- nesses can give you the amount in dol- lars and cents as the amount 'of injury, but this is left to the enlightened con- science of an impartial jury. This does not mean that juries can arbitrarily enrich one party at the expense of the other, nor that they should act unreasonably through mere caprice. But it authorizes you to give reasonable damages when the proof shows that the law authorizes it. But the jury should exercise common-sense and love of justice, and, from a desire to do right, fix an amount that will fairly com- pensate for the injury received." Davis V. Central B. Co., 60 Ga. 329. An aggravated condition of heniia caused hy the cars running off the track, whereby the plaintiff was shocked, and thus damaged, was held a proper element of damage. Houston, &c, R. Co. v. Shafer, 54 Tex. 641. Where the question was whether the child of deaf and dumb parents was deprived of the sense of hear- ing hy an injury received at the hands of the defendant, when it was under two months of age, it was devolved on the plaintiff to show that the child was not deaf before the injury, or was not bom deaf. A charge to the jury that "if the evide.nce be equally balanced for plaintiff and defendant on any contested point, they should find that part of the case in favor of the defendant," was not erroneous in view of the special facts. Davis o. Central R. Co., 60 Ga. 329. In an action against a rail way company for personal in- jury to a passenger, the jury in assessing the damages may take into their consideration, besides the pain and suffering of the plain- tiff, and the expense incurred by him for medical and other necessary attendance, the loss he has sustained through iis in- ability to continue a lucrative professional practice. Phillips o. London, &c. Ry. Co., 5 C. P. Div. 280. A passenger who has been carried past her station, through the negligence of the company, hut with- out any circumstances of aggravation, and without receiving any personal injury, may recover for the inconvenience, loss of time, labor, and expense of travelling back, but not for anxiety and suspense of mind suffered in consequence of the delay, nor the effects upon her health, nor the danger to which she was exposed in con- sequence of the train's being stopped at her station an insufficient length of time for her to get off. Trigg v. St. Louis, &c. E. Co., 74 Mo. 147 ; 41 Am. Eep. 305. 1 Phillips V. Southwestern Ry. Co., 5 Q. B. Div. 78 ; New Jersey Express Co. ■». Nichols, 34 N. J. L. 434 ; City of Joliet V. Conway, 119 111. 489 ; Wade v. Leroy, 20 How. (IT. S.) 34 ; Luck v. Eipon, 52 Wis. 196. In Nash v. Sharpe, 19 Him (N. Y.), 365, Pratt, J., says • " It seems to be settled that in an action for loss of services, evidence of the nature and extent of the party's business, or how much he was earning from his business, or realizing from fixed wages, is proper upon the question of damages." Masterton v. Mount Vernon, 58 N. Y. 391 ; Mclntyre V. N. Y. Central E. Co., 87 N. Y. 287 ; Walker ti. Erie E. Co., 68 Barb. (N. Y.) 260. In Holmes v. Halde, 74 Me. 28, 43 Am. Rep. 567, in an action to recover for personal injuries sustained by the defend- ant's negligence, where the plaintiff claimed ' damages for loss of business as a physi- SEC. OK. J UAJMAUKS FOR IJMJUKlJfiS TO l-ABBJfiJNUJfiKS i^lO the time of the trial, but for all probable future disability in that respect.^ If the injury is of such a character as of itself establishes the incapacity of the plaintiff to labor, — as, if it involves the loss of an' arm, leg, or amounts to a permanent physical disability, — no evidence of the effect of the injury upon the earning capacity of the plaintiff is necessary .^ But if the injury is not necessarily perma- nent, its probable effect upon the person injured must be shown ; as possible consequences are too uncertain and speculative to constitute an element of damage.* cian, it is not error to instruct the jury that the plaintiff is not prohibited from recovering damages for loss of business as a physician, although- he ha^i no such de- gree from a public medical institution as would entitle him to maintain an action for professional services. Libby, J., said • " If by the injuries received the plaintiff was deprived of his capacity to perform his ordinary labor, or attend to his ordi- nary business, the loss he sustained there- by is an element of damages. The true test is what his services might be worth to him in his ordinary , employment or business. It is not what sum he might legally recover for such services, but what he might fairly be expected to receive therefor. What he had previously been receiving for his services in his business is proper evidence on this point. A clergy- man who has no fixed salary, but is dependent entirely upon voluntary con- tributions for his compensation for his services, as in some of our churches, may have an income, and if by an injury he is deprived of his, capacity to perform his duties, might lose that income, and suffer as much loss as if he was receiving a sal- ary fixed by contract ; and still he could not enforce the payment of anything from his church or society. The plaintiff was practising his profession as a physician. If he had received no medical degree or license, still he was not pursuing a busi- ness in violation of law. The law would afford him no remedy for the collection of his charges for his services, but if his patients voluntarily paid him therefor, so that he was receiving an income of a cer- tain amount for his services, that was the measure of the value of his capacity to render them, and might be fairly considered as evidence tending to show that he would receive similar compensation in the future. This question was fully considered in Eng- land in the recent case, Phillips v. Lon- don, &c. By. Co., 42 L. T. Rep. n. s. 6 ■ 6,0. P. Div. 280. The plaintiff was a physician, and brought his action for a personal injury by which he was incapaci- tated from attending to his business. At the trial he proved that before the injury he had been receiving large special fees in the nature of gratuities from wealthy patients, which yrith his regular charges gave him an income of about five thou- sand pounds per year. The jury rendered a verdict for the plaintiff for sixteen thousand pounds. The case was taken to the court of appeal, and one of the ques- tions was whether the jury was properly permitted to consider the special fees in estimating the value of the plaintiffs busi- ness, and the court held that it was a proper matter for their consideration." But it may be shown that the practice of a professional man is unlawful. Jacques V. Bridgeport Horse E. Co., 41 Conn. 61. * Houston, &c. E. Co. v. Boehm, 57 Tex. 152; George v. Haverhill, 110 Mass. 506; Morris v. Chicago, &o. K. Co., 45 Iowa, 29 ; New Jersey Exchange Co. «. Nichols, 33 N. J. L. 435 ; McLaughlin v. Corry, 77 Penn. St. 109; Hall v. Fond du Lac, 42 Wis. 274. 2 Texas, &c. E. Co. v. O'Donnel, 68 Tex. 27. See also "Wade v. Leroy, 20 How. (U. S.) 34. ' Pennsylvania R. Co. v. Dale, 76 Penn. St. 47. In Jewell v. Union Passenger R. Co., Penn. Sup. Ct., 1883, 40 Leg. Int. 36, it was held in an action of 'damages for personal injury by negligence, that no damages will be allowed for any specula- tive or merely possible consequence of the wound in the absence of evidence that 1416 RAILWAYS AS CAEBIEES OF PASSEN6EES. [cHAf . XVII. Neither the poverty nor the wealth of the plaintiff can be shown to affect the damages^ nor the number of persons who are dependent upon him for support,^ except in cases where the circumstances are such as entitle the plaintiff to exemplary damages. In some of the cases it is held that it is not competent to show that the plaintiff's habits of intemperance are such as to affect his earning capacity." But the soundness of this rule is doubtful, and upon principle there is no reason whj' evidence of that character which directly bears upon the actual loss to the plaintiff from the injury should not be permitted to be shown. In those cases where the injury is the result of gross niegligence, or the wilful misconduct of the defendant's agents, the plaintiff, in addition to his actual damages, is entitled to such exemplary damages as the jury see fit to give, to prevent a recurrence of such injuries.' the result will become more Serious; as in case of an injury to one eye, and the barely possible result of inflammatidn extending to the other. The court said : "The cor- nea of the plaintiflf s eye was out in three places, in the lower, outer, and quarter, below the line of vision, and the iris be- came attached to the lower branches of the corneal injury. The poWet of the eye is permanently weakened, but its condi- tion has remained unchanged for the last twenty months, while subjected to the severest tests, and during this time the plaintiff has been able to work from eleven o'clock P. M., till seven o'clock, A. M. As the measure of damage in this case is compensation only, the verdict transcends the proper limits, unless we believe that a more serious impairment or an entire loss of vision will follow as a direct conse- quence of the plaintiff's injury. The ad- herence of the iris may cause inflamma- tion, which will affect the interior of the eye, and may aggravate an inflammation produced by any cause, and the loss of its sight follow. The other eye, to some ex- tent, is exposed to the same risk, because of the danger of sympathetic inflamma- tion.^ If an allowance should be made for such results in the assessment of damages, the verdict is not too large. They are pro- per elements of damage if they are fairly probable, and not merely possible. Upon the trial there was very little testimony directed to this point, and none that in our judgment furnishes a just ground for a, belief that the plaintiff's ipjury will be- come more serious than it now is. Demon- stration on such a subject is not to be ex- pected, but something more than a mere speculation as to possibilities is required. If the plaintiff can furnish satisfactory evidence on this point he will have an op- portunity of. doing so if he elects to try the case again." 1 W. IT. Telegfaph Co. v. Hendetson, 89 Ala. 510 ; Ballou v. Farnam, 11 Allen (Mass.), 7?; Kansas, &c. E. Co. v. Painter, 9 Kan. 620 ; Malone v. Hamley, 46 Cal. 409; Baltimore, &c. R. Co. v. Shipley, 31 Md. 368 ; Pittsburgh,, &c. R. Co. v. Powers, 74 111. 341 ; Penn. R. Co. v. Books, 57 Penn. St. 339. ^ Baltimore, &c. R. Co. v. Boteler, 38 Md. 568. ' Philadelphia, &c. R. Co. v. Qnlgley, 21 How. (U. S.) 202; Hopkins v At- lantic, &c. R. Co., 36 N. H. 9; Bel- knap V. B<jston, &c. R. Co., 49 IT. H. 858; Lyon v. Hancock, 35 Cal. 372; Maysville, &c. R. Co. v. Herrick, 13 Bush (Ky.), 122; Western Union Tel. Co. v. Eyser, 91 U. S. 495, Milwaukee, &c. R. Co. V. Arms, 91 U. S. 489 ; Kan- sas Pacific R. Co. V. Cutter, 19 Kan. 88 ; McKinley v. Chicago, &c. R. Co., 44 Iowa, 314; Malecek v. Tower Grove R. Co., 67 Mo. 17. In Kansas, &c. R. Co., 18 Kan. 523, of a verdict for 8820, the jury speoiftoally returned that $800 of SEC. 317.] DAMAGES FOR INJURIES TO PASSENGERS. 1417 It was at one time regarded as improper to hold the principal liable for the wilful or malicious acts of his agents, and consequently it was given as exemplary damages. The court sustained tbe verdict. See also Goddard «. Grand Trunk B. Co.^ 57 Me. 203 ; Focfte v. Nichols, 28 111. 486 ; Devine v, Rand, 38 Vt. 621 ; Hanson v. European, &e. E. Co., 62 Me. 84; Beale «. Eailroad Co., 1 Dill. (IJ, S.) 568 ; Edleman v. St. Loiiis Transfer Co., 3 Mo. App. 503; Perkins v. Missouri, &c. E. Co., ,55 Mo, 201 ; Hanck v. Ridg- way, 33 111. 473; Kennedy v. North Missouri R. Co., 36 Mo. 351 ; Penn. E. Co. V. Zebe, 33 Penn. St. 318 ; Baltimore, &o. Turppike Co. v. Boone, 45 Md. 344 ; Philadelphia, &c. R. Co, V. Larkin, 47 Md. 155 ; New Orleans, &o. E. Co. V. Hurst, 36 Miss. 660 ; Mays- ville, E. Co. V. Herrick, 13 Bush (Ky.), 122 ; Pleasants v. North Beach E. Co., 34 Cal. 594 ; Union Pacific E. Co. v, Haiise, 1 Wyo. 27; Atkinson v. Erie R. Co., 33 N. ;T. L. 354; Kentucky, &c. R. Co. u. Dill, 4 Bush (Ky.), 593. Corporations, like natural persons, are liable in exem- plary damages when the facts of the case are of a character to warrant them. Male- cek V. Tower Grove, &c. R. Co., 57 Mo. 17. Where the testimony showed that the train upon which the deceased was riding as a passenger was thrown from the track, and that thereby the deceased re- ceived the injuHes from which he died, and failed to show any unusual speed or want of care in the management of the train, or by any direct evidence the cause of the train's being thrown from the track, and disclosed as the only evidence of neg- ligence on the part of the company the fact that some of the ties at and near the place of the accident were rotten, and it appeared that the company had a, suitable and competent person in charge of the track at that place as section-boss, and that lie was from time to time, and as fast as he deemed necessary for the safety of the track, replacing the old and rotten ties with new and sound ones, — it was held that the case was shown for exem- plary damages. Kansas Pacific E. Co. v. Cutter, 19 Kan. 83. In a New York case the plaintiff's injury was caused by a train running into a river through the open VOL. 11. — 39 / draw of a bridge, a few minutes after six o'clock in the morning. The bridge- tender, it was shown, could neither read nor write, but it was not made to appear that the accident was in any degree at- tributable to that fact. Evidence tending to show inattention on the part of the en- gineer was also given. The court charged the jury : "If you find from the evidence that the conduct of the engineer, or the conduct of the railroad company in the employment of a bridge-keeper who could^ neither read nor write, amounted to such a reckless indifference to human life as to constitute wilful and malicious miscon- duct, then you may be justified in giving exemplary damages. It was held error. Brooks V. New York, &c. R. Co., 30 Hun (N. Y.), 47. A passenger in a rail- way-car who has been injured in a colli- sion caused by the negligence of the em- ployes of the company is not, as a general rule, entitled to an action against the company to recover damages beyond the limit of compensation for the injury actually sustained.' Exemplary damages should not be awarded for such injury un- less it is the result of wilful misconduct of the employes of the company, or of that reckless indifference to the rights of others which is equivalent to an intentional vio- lation of_them. Milwaukee, &c. R. Co. V. Ar&s, 91 IT. S. 489 ; Western Union Tel. Co. V. Eyser, 91 U. S. 495. The absence of slight care in the management of a train, or in keeping a railroad in repair, is gross negligence ; and to enable a passenger to recover punitive damages for a personal injury, it is not necessary to show the absence of all care, or reckless indifference to the safety of passengers, or intentional misconduct on the part of the agents and officers of the company. Puni- tive damages are recoverable if the proof shows that the company failed to use .such diligence in keeping its bridge in repair as careless and inattentive persons usually exercise in the preservation of the same or of business df like character. To author- ize the recovery of punitive damages it is necessary to show a state of case — wilful neglect — qiMsi criminal in its nature. 1418 EAILWAYS AS CARRIEES OF PASSBNGEKS. [OHAP. XVII. exemplary damages were not recoverable against a corporation for the acts of its servants, unless it was shown that it authorized or had ratified the act.i But, since it is now almost universally held that the master is liable for the wilful and even malicious acts of his ser- vants in the line of his duty, the rule which is now generally held in the better class of cases, that exemplary damages may be given against a corporation for injuries inflicted by its servants wilfuUy or maliciously, and whether authorized or ratified by it or not, seems to us to be consistent and just,^ especially when the action is for per- sonal injuries received by a passenger to whom the company owes a contract duty ; and in some of the States such damages are provided for by statute.^ But where the action is based on the negligence of the company, exemplary damages are not recoverable, since they can never be allowed except in case of a wilful injury, and it is grossly incorrect to say that a negligence may be wilful.* The fact that the plaintiff has an accident insurance policy should have no effect upon the damages;^ Maysville, &c. R. Co. v. Herrick, 13 Bush (Ky.), 122. 1 Hays 0. Houston, &o. R. Co., 46 Tex. 272 ; Hogan v. Providence, &c. R. Co., 3 R. I. 88 ; Ackerson v. Erie R. Co., 33 N. J. L. 254 ; Townsend v. N. Y. Cen- tral E. Co'., 56 N. Y. 295; Great Western K. Co. V. Miller, 19 Micli. 305 ; Hill v. New Orleans, &c. B. Co., 11 La. An. 292; Milwaukee, &o. E. Co. a. Finney, 10 Wis. 388; Wade v. Thayev, 40 Cal. 578; Edelmann v. St. Louis Transfer Co., 3 Mo. App. 503. ^ Matthews v. Warner, 29 Gratt. (Va.) 570 ; 26 Am. Rep. 396 ; Parsons v. Mis- souri Pac.R. Co., 94 Mo. 286 ; Smith v. Wabash, &c. R. Co., 92 Mo. 360; God- dard v. Grand Trunk E. Co., 57 Me. 202; Hopkins v. Atlantic, &o. R. Co., 36 N. H. 9 ; Haley v. Mobile, &c. R. Co., 7 Baxter (Tenn.), 239 ; New Orleans, &c. E. Co. V. Bailey, 40 Miss. 395 ; Gasway V. Atlantic, &o. R. Co., 58 Ga. 216; Pittsburgh, &e. R. Co. v. Slusser, 19 Ohio St. 267 ; Quigley v. Central Pacific. R. Co., ILNev. 350; Baltimore, &c. T. Co. V. Borne, 45 Md. 344 ; Philadelphia, &c. E. Co. V. Larkin, 47 Md. 155 ; Milwaukee, &c. E. Co. V. Arms, 91 U. S. 489; Kansas, &o. E. Co. t-. Kessler, 18 Kan. 523 ; Chi- cago, &c. R. Co. V. Bryan, 90 III. 126 ; Evans v. St. Louis, &c. R. Co., 11 Mo. App. 463. In some States the right to such damages is made to depend upon the express or implied ratification of the act by the company. Graham i>. Pacific R. Co., 66 Mo. 536 ; Hays v. Houston, &c. R. Co., 46 Tfix. 272. ' Houston, &c. R. Co. v. Cowsev, 57 Tex. 293 ; Smith v. Wabash, &c. R. Co., 92 Mo. 360 ; Louisville, &c. R. Co. v. Brooks, 83 Ky. 137. * See 16 Am. & Eng. Ency. Law, p. 477. Where 'an employ^ of a railway com- pany in enforcing a valid rule of the com- pany, in a case to which he in good faith believes it to apply, without wantonness, indignity, or insult, ejects » passenger from a train, exemplary damages are not recoverable therefor. Fitzgerald v. Chi- cago, &o. R. Co., 50 Iowa, 79. 5 Kellogg!). New York, Central R. Co., 79 N. Y. 72; North Penn. R. Co. v. Kirk, 90 Penn. St. 20 ; Harding v. Towns- end, 43 Vt. 641 ; Clark v. Inhabitants, &c., 2 B. & C. 254 ; 12 E. C. L. 118 ; Dally V. India, &c. L. Assur. Co., 16 C. B. 365 i 88 E. C. L. 364 ; Carroll v. Missouri Pac. R. Co., 88 Mo. 239 ; 26 Am. & Eng. E. Cas. 268 ; Baltimore, &c. R. Co. v. Wightman, 29 Gratt. (Va.) 431 ; Brad- burn V. Great Western Ry. Co., L. R. 10 Exchq. 1 ; Harding v. Townsend, 43 Vt. 536 ; Pittsburgh, &c. R. Co. o. Thompson, SEC. 317.] DAMAGES FOE INJURIES TO PASSENGBKS. 1419 nor the circumstance that he has a large income independent of his earnings.^ The precise measure of damages to be recovered is always a ques- tion for the jury to determine upon the evidehce and the instructions of the court. And their verdict will never be set aside as excessive, except where the amount allowed is so exorbitant, and so dispropor- tionate to the injury as clearly to evince that it was the resiilt of passion or prejudice.^ In an action by a parent for an injury to a child, his recovery is limited to the loss of service, present and prospective, during minor- ity, and the expense of medical attendance and nursing, but nothing is allowed for the pain and suffering of the child, physical or mental.' An action by a parent for an injury to his minor child does not pre- clude a recovery by the child also. But in an action by the child when his parents are living, he can recover nothing for loss of time during minority, but only for the pain and suffering of body and mind, and prospective damages where the. injury is likely to prove perma- nent.* A statute giving an action to the father of a minor child injured or killed byi the negligence of another, providing that in 56 111. 138. See also 19 Am. & Eng. Enoy. Law, p. 944-945, n. Centra, Hicks V. Newport, &c. E. Co., 116 E. C. L. 401, «., where Lord Campbell instructed the jury that the amount of insurance on the life of deceased should be deducted. Nor has the insurance company which has been obliged to pay a policy any right of action against the company causing the death of the policy holder. Mobile L. Ins. Co. 17. Brame, 95 U. S. 754 ; Randall V. Cochran, 1 Ves. Sr. 198 ; Connecticut Life Ins. Co. v. New Haven, &c. E. Co., 25 Conn. 265 ; 65 Am. Deo. ,571. 1 Phillips II. London, &c. Ey. Co., 5 C. P. Div. 280. . ^ Phillips V. Southwestern Ry. Co., 4 Q. B. Div. 406 ; Ransom v. N. Y. & Erie R. Co., 15 N. Y. 415 ; Chicago, &c. R. Co. V. Hazyards, 26 111. 373 ; Curtis v. Rochester, &e. R. Co., 18 N. Y. 534 ; Holyoke v. Gd. Trunk R. Co., 48 N. H. '541 ; Hopkins v. Atlantic, &e. R. Co., 36 N. H. 9 ; Drew v. Sixth Ave. E. Co., 26 N. Y. 49 ; Malone v. Hawley, 46 Cal. 409 ; Laing v. Colder, 8 Penn. St. 479 ; Pittsburgh, &c, R. Co. v. Donahue, 70 Penn. St. 119 ; Penn. B. Co. v. Graham, 63 Penn. St. 290 ; Penh. R. Co. ■». Books, 57 Penn. St. 337 ; Ballon v. Farnam, 11 Allen (Mass.), ?3 ; Peoria Bridge Assn. V. Loomis, 20 111. 235 ; Chicago, &c. R. Co. V. Flagg, 43 111. 364 ; Chicago, &6. R. Co. u. McEean, 40 111. 218; Cohen v. Eureka, &c. R. Co., 14 Nev. 376 ; Pierce V. Millay, 44 111. 189 ; Hogan v. Provi- dence, &c. R. Co., 3 E. I. 88 ; Ohio, &c. R. Co. V. Dickerson, 59 Ind. 317; Klein V. Jewett, 26 N. J. Eq. 474 ; McMahon ». Nortltfrn Central E. Co., 39 Md. 438 ; Pittsburgh, &o. R. Co. v. Andrews, 39 Md. 329 ; Bannon v. Baltimore, &c. E. Co., 24 Md. 108 ; Qnigley v. Central Pacific R. Co., 11 Nev. 350 ; Russ v. Steamboat, 14 Iowa, 363 ; Morris v. Chicago, &o. R. Co., 45 Iowa, 29; Chappin v. New Orleans, &c. R. Co., 17 La. An. 19 ; Smith v. Pittsburgh, &c. E. Co., 23 Ohio St. 10. 8 Whilford p. Panama E. Co., 23 N. Y. 465 ; Cleveland, &c. R. Co. o. Rowan, 66 Penn. St. 393 ; Donaldson v. Mississippi R. Co., 18 Iowa, 281. As to damages for injuries resulting in death, see post. Chap- ter XXVI. * Wood's Master and Servant, 449. 1420 RAILWAYS AS CARRIERS OF PASSENGERS. [CHAP. XVII. such action " such damages may be given as under all the circum- stances of the case may be just," is held to entitle him to' recover only compensatory damages for the loss of service of the child, and the expense incurred in consequence of the injury for medi- cal services, nursing, etc., and not for the pain and suffering of the child or for his disfigurement. In an Indiana case,^ the court say : " On the question of damages in this class of cases the com- mon-law rule must prevail. When the action is by the husband, or master, or parent, for their individual losses respectively, occasioned by the tortious acts towards the wife, infant child, or servant, the in- dividual suffering of the immediate subject of a wrongful act cannot be taken into account in the aissignment of damages.^ In such cases there may be two actions for the same injury, — that of the father, and that of the child. When the action is brought by the parent, loss of service, medical attendance, expense of nursing, and the like, are matters to be considered by the jury ; and in such cases com- pensation is the rule. The child recovers, not for the loss of time or service or medical attendance or expense of curing, but for the injury personal to himself, his pain and suffering, and the probable infirmities after he comes of age.^ For an injury done to the wife, a husband's recovery is limited to the loss of services a,nd comfort, and expenses of medical attendance and nursing.* ' If the husband and wife join in the suit, or where, by statute, the wife sues alone, then the wife's pain and anguish of mind forms an element of damage.* 1 Long V. Morrison, 14 Ind. 600. 57 Ga, 252 ; Covington St. B. Co. v. 2 Ohio, &c. E. Co. V. Tendall, 13 Ind. Packer, 9 Bush (Ky.), 455 ; Houston, &c. 386 ; Quin «. Moore, 15 N. Y. 432 ; Old- R. Co. v. Miller, 49 Tex. 322 ; Hopkins lield V. New York, &o. R. Co., 14 IT. Y. v. Atlantic, &c. R. Co., 36 N. H. 9 ; 318. State v. Baltimore, &c. R. Co., 24 Md. 84 ; 8 Pennsylvania B. Co. v. Zebe, 33 Penn. Gilligau v. New York, &c. R. Co., 1 E. D. St. 328 ; Pennsylvania R. Co. v. Kelly, 31 S. (N. Y.) 453 ; Traver ». Eighth Ave. R. Penn. St. 372 ; Sherm. & Red. on Neg., Co., 6 Abb. Pr. (N. Y.) N. s. 46. § 608. Durkee v. Central Pacific R. Co., ^ Hopkins v. Atlantic, &c. R. Co., 36 56 Cal. 388 ; 38 Am., Rep. 59. N. Y. 9 ; Brooks v. Schwerin, 54 N. Y. * Cregin v. Cross Town R. Co., 75 343 ; Langhlin v. Eaton, 54 Me. 156. N. Y. 192 ; Oakland E. Co. v. Fielding, When |both husband and wjfe have been 48 Penn. St. 320 ; Penn. R. Co. v. Zebe, injured by the same accident, the husband 33 Penn. St. 318 ; Penn. R. Co. v. Butter, may in the same action recover for injuries 57 Penn. St. 335 ; Brooks v. Schwerin, 54 done to himself and for damages sustained N. Y. 343 ; Smith v. St. Joseph, 55 Mo. by him in consequence of the injury to his 456 ; Fuller v, Naugatuck R. Co., 21 wife. Cincinnati, &c. R. Co. v. Chester, Conn. 557; Barnes v. Martin, 15 Wis. 57 Ind. 297. Or he may maintain separate 240 ,• Tuttle V. Chicago, &c. B. Co., 42 actions. Newberry v. Connecticut, &c. K. Iowa, 518 ; EasfTenn., &o. E. Co. v. Cox, Co., 25 Vt. 377. SBC. 318.] INJURIES BECEIVBD ON SUNDAY. 1421 Sec. 318, injuries received on Sunday. — In Massachusetts,'- and some of the other States, under statutes prohibiting labor and all secular employment, including travelling, on the Sabbath, it is held that no recovery can be had of a railway company for an injury received by a passenger upon its trains upon that day, or by an em- ploy^ who is injured while engaged in running its cars. But this doctrine, even under the Massachusetts statute, is generally regarded as strained, unwarranted, and unjust. It is so generally a matter of public convenience and necessity that street-cars, and- even steam- cars should be run upon the Sabbath that it is regarded as a work of 1 Day V. Highland St. R. Co., 136 Mass. 113 ; 44 Am. Eep. 447, holding that a horse-oar nin on Sunday for the purpose of accommodating the public generally and earning money from whoever may see fit ■ to travel upon it, is in . violation of the Lord's Day Act, although some of the pas- sengers are lawfully travelling ; and the conductor is both laboring and travelling in violation of the Lord's Day Act, and is without remedy for a personal injury sus- tained in such- occupation. The court said : "It is not within our province to determine the wisdom or exj)edieney of the law, or how far there has been a change in public sentiment in relation to the proper manner of observing the Lord's Day. These considerations are for the Legis- lature. We can only take the law as it is written, and apply it accorditig to its ob- vious meaning and the intention of the Legislature. We do not iutend to decide that a horse-car may not be so run on Sunday as to come within the exception of the statute and be employed in a work of necessity or charity. We only decide that in this case there was no evidence which would warrant a jury in finding that this car was run from consideration of necessity or charity, and that the jury should have been so instructed. We cannot hold that the mere fact that some of the passengers on the car were lawfully tmvelling ren- dered the running of the car lawful. Com. V. Sampson, 97 Mass. 407 ; Com. v. ■Josselyn, 97 Mass. 411. The plaintiff was engaged in performing his ordinaiy duties as conductor of a horse-car, and in performing those duties he was doing labor or work. Though he was travelling, he was primarily, laboring, and his travel- ling was merely an incident of the kind of work in which he was engaged. The car being run in violation of law, he was both laboring and travelling on the Lord's Day in violation of law. The question then arises whether his violation of law con- tributed to cause his injury. The general principles applicable to the case are weU' settled in this commonwealth. The ques- tion has more frequently arisen in cases of travelling, doubtless for the reason that travelling is the more common form iu which the statutes for the observance of the Lord's Day are violated, or for the rea- son that iu travelling a, person is more exposed to injury than in laboring. It has been uniformly held in numerous deci- sions, from Bosworth v. Swansey, 10 Met. (Mass.) 363, to Davis vi Somefville, 128 Mass. 594, 35 Am. Bep. 399, that a person travelling on the Lord's Day in violation of law cannot recover in an action against a city or town for injuries sustained from a defect in a highway. This is not because the liability of a city or town for a defect in a way is imposed by statute, or because a city or town stands in any different posi- tion from an individual or other corpora- tion, but only because the act of travelling, which is the act prohibited, necessarily contributes to cause the injury. The act of travelling in violation of law on the Lord's Day, with no evidence of any other negligence, -has been held to be necessarily contributory to the injury sustained by the plaintiff, in Stanton v. Metropolitan R. R. Co., 14 Allen (Mass.), 485 ; Smith v. Boston, &c. R. Co., 1^0 Mass. 490; 21 Am. Rep. 538 ; Lyons v.. Desotelle, 124 Mass. 387 ; and Bucher v. Fitchburg R. Co., 131 Mass. 156, 41 Am. Rep. 216." 1422 BAIL-WAYS AS CAREIEES OF PASSENGERS. [CHAP, XVII. necessity ; ^ and no attempt to prevent it is made, even in Massa- chusetts. Public convenience and necessity are thus permitted to 1 In Com. V. Louisville, &c. R. Co., 80 Ky. 291, 44 Am. Eep. 475, 6 Am. &Eng. R. Cas. 216, it was held that running railway trains on Sunday is a work of necessity. The court said : " Railroad companies, as carriers of passengers, fur- nish at this day almost every accommoda- tion to the traveller that is to be found in the hotels of the country. His meals, as well as sleeping apartments, are often fur- nished him ; and to require the train when on its line of travel to delay its journey that the passenger may go to a hotel to enjoy the Sabbath, where the same labor is required to be performed for him as upon the train, or to require hiqj^ to remain on the train and there live as he would at the hotel, would certainly not carry out the purpose of the law ; and besides, the neces- sity of reaching his home or place of des- tination must necessarily exist in so many instances as to make it indispensable that the train should pur.sue its way. So of the trains transporting goods, merchandise, live-stock, fruits, vegetables, etc., that by reason of delay would work great injury to parties interested. A private carriage in which is the owner or his family, driven by one who is employed by the month or year to the church in 'which the owner worships, or to the house of his friend or relative on the Sabbath, is not in violation of the statute. So in reference to the use of street-railroads in towns and cities on the Sabbath day. Those who have not the means of providing their own horses or carriages travel upon street-cars to their place of worship, or to visit their friends and acciuaintances ; and such is the appar- ent necessity in all such cases that no inquiry will be directed ^ to the business or destination of the traveller, whether on the one car or the other, nor will an in- quiry be directed as to the character of the freight being transported. Nor will the person desiring to hire the horse from the livery-stable be compelled to disclose the purpose in view in order to protect the keeper from the penalty of the law. Such employments are necessary, and not within the inhibition of the statute. The com- mon-sense as well as the moral sentiment of the country will suggest that the merchant who sells his goods, or the farmer who follows his plough, or the carpenter who labors upon the building, or the saloon- keeper who sells his liquors on Sunday, are each and all violating the law by which it is made penal to follow the ordinary avo- cations of life on Sunday. The ordinary usages and customs of the country teach us that to pursue such employments on the Sabbath is wrong. Eveiy man can realize the distinction betweeh pursuing such avocations and that of transporting the traveller to his home, or the pursuit of such employments as must result from the necessary practical wants of trade." See St»te V. Bait. & Ohio R. Co., 15 W. Va. 362 ; 36 Am. Rep. 808. In Smith v. New York, &c. E. Co., 47 N. J. L. 7, 18 Am. & £ng. R. Cas. 399, a s):atute prohibiting travelling on Sunday except for necessity or charity, permitted any railroad company to run one passenger train each way on Sun- day for the accommodation of the citizens of the State. It was held that travel on such trains, although not for necessity or char- ity, is lawful. Running an excursion steamboat on Sunday is a "worldly employment" suih as is forbidden by the Pennsylvania stat- ute. Com. V. Rees, 10 Penn. Co. Ct. Eep. 545. So is driving an omnibus for public travel. Com. v. Jeandeall, 2 Grant's Cas. (Penn.) 506. It is also held in Pennsylvania that the running of street-cars on Sunday is not a "work of necessity." Sparkhawk *. Union Pass. R. Co., 54 Penn. St. 401 {see the subject well discussed in the several opinions delivered in this case). But in Georgia the running of street-cars on Sunday is considered a necessity. Au- gusta, &c. R. Co. V. Renz, 55 Ga. 126. And in view of the part which street-cars now have in the life of city people, particu- larly the poorer classes, the correctness of the view of the Georgia court cannot be doubted. See this subject of Sunday and Sunday laws discussed at length in the article "Sunday" in the Am. & Eng, Ency. of Law, by H. D. Minor, Esq. See also Ringgold on Sunday Law j Harris on Id. SEC. 318.] INJURIES BECEIVED ON SUNDAY, 1423 override the statute ; yet the courts, adopting a narrow construction, hold that a person who avails himself of this public convenience, whether from necessity or otherwise, does so at his peril, and assumes all the risks of the negligent conduct of such trains. In other words, it is held that a person by travelling upon a, railway-car upon the Sab- bath is guilty of contributory negligence, as, if he had not been travel- ling contrary to the statute, he would not have been injured.^ But this doctrine is generally repudiated by the courts in those States where similar statutes exist. In New York ^ a person who was injured while travelling upon the Sabbath, by reason of defects in the streets, was held entitled to recover therefor from the municipal corporation whose duty it was to keep the streets in repair ; and in an earlier case' the same rule was applied in favor of a passenger upon a 1 Wallace v. Merrimac Eiver Nav. &c. Co., 134 Mass. 95 ; 45 Am. Eep. 30.1. In this case the court held that there can he no recovery from the owners of a steam- boat for running down a yacht upon the Sabbath, unless it was wantonly or mali- ciously done by those in charge. It is somewhat difficult to understand how the wantonness or malice of the act can affect the civil liability of the parties so as to strip the act of the yacht-owners in run- ning their yacht upon the Sabbath of its unlawful character, or render them less obnoxious to the charge of contributory negligence. See the same views in Bucher V. FitchburgR. Co., 131 Mass. 156 ; 6 Am. & Eng. R. Cas. 212 ; McDonough v. Metro- politan R. Co., 137 Mass. 210 ; 21 Am & Eng. R. Cas. 354. See also opinion of DuRFBE, J., in Baldwin v. -Barney, 12 R. I. 392, in which he combats the Massa- chusetts doctrine. 2 Platz V. Cohoes, 89 N. Y. 219 ; 41 Am. Rep. 286. In this case it was held that the fact that the plaintiff was trav- elling at the time of the accident on Sun- day in violation of the statute was no defence to, an action against the city for . the injury. The statute forbidding unlawful travelling on Sunday prescribes a penalty for its violation, but it goes no further, and there is no principle upon which it can be held that the right to maintain an action in respect of special damage resulting from the omission of a defendant to perform a public duty is taken away because the person injured was at the time disobeying a, positive law. Danporth, J., went on to say. "The plaintiff's act in travelling was not con- tributory negligence. The traveller is not declared to be a trespasser upon the streets, nor could defendant close them up against her. Travel does not usually result in in- jury, and cannot be regarded as the im- mediate cause of the accident, and of such only the law takes notice. At common law plaintiff's act was not unlawful, and plaintiff was under its protection and might resort to it against a wrong-doer by whose act she was injured. See Steele v. Burckhardt, 104 Mass. 59; Welch v. Wes- son, 6 Gray (Mass.), 505; NorrisD. Litchfield, 35 N. H. 271. See also Schmidt v. Humphrey, 48 Iowa, 652 ; Sutton V. Wauwatosa, 29 Wis. 21 (a case similar to the one at bar) ; Dillon Miin. Corp., § 778 ; Baily v. Mayor, &c., 3 Hill (S. Y.), 531. There are authorities in conflict with the case at bar. See John- , son V. Irasburgh, 47 Vt. 28 ; Holcomb v. Danby, 51 Vt. 428; Bosworth ». Swansey, 10 Met. (Mass.) 333 ; Jones v. Andover, 10 Allen (Mass.), 18 ; Smith v. Bost. & Me. R. Co., 120 Mass. 490. But see, in harmony with the case, at bar, Merritt v. Earie, 29 N. Y. 115 ; Wood v. Erie R. Co, 72 N. Y. 196. Also Cooley on Torts, § 157, Whart. Neg., § 331." » Carroll V. Staten Island K. Co., 58 N. Y. 126; 17 Am. Eep. 221. See also Wood V. Erie R. Co., 72 N. Y. 196 ; Merritt v. Earie, 29 N. Y. 115 (validity of Sunday contract). 1424 RAILWAYS AS CAEKIEES OF PASSENGERS. [CHAP. XVII railway train run upon the Sabbath, who was injured through the negligence of the servants in charge of it. The same doctrine hak been held in the United States Supreme Court.^ And in a some- 1 Phila., &0. E. Co. v. Phila., &o. Steam Tow Boat Co., 23 How. (U. S.) 209. In Opsahl 1>. Judd, 30 Minn. 136, in an action for the death of a passenger on defendants' steamhoat, through their negligefice, it waS held that the fact (hat the auoident Cftusing death took place on Sunday while the defendants were violating {he law in carrying passengers was not a defence on the grotind that the intestate was particeps crimims. To such an ob- jection it is a sufficient answer that the defendants on that da:jr occupied the rela- tion of common carriers of passengers, and their general obligation to use such care and diligence as the law enjoins is not limited by the contract with the passen- gers, nor with the person who engaged the use of the boat and the services of the crew for that day, but is governed by con- siderations of public policy. That the undertaking was unlawful does not touch the question, 581T. Y. 134. As remarked in that case, "any relaxation of the rule as to duty or liability naturally tends to bring about a corresponding relaxation of care and diligence on the part of the car- rier." The suggestion that if the deceased had not joined the excursion he would have escaped, may perhaps serve to enforce a valuable lesson which finds a sanction in law and morals, but as between him and the defendants he was rightfully on the boat. His presence did not (in a proper sense) contribute to or cause the accident; and in such cases wrong-doers, though answerable to the State or parties injured by them for their own acts, are entitled to the protection of the laws against the wrongful acts or culpable negligence of others. Carroll v. Staten Island R. Co., f>S N. Y. 136; 17 Am. Rep. 221. In Philadelphia, &c. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415, 6 Am. & Eng. R. Gas. 194, under the Maryland statute which forbids all persons to "work or to do any bodily labor on the Lord's day, commonly called Sunday," and provides that no person shall command or willingly suffer any of his servants to do any man- ner of work or labor on that day — works of necessity and chaflty always excepted ^-and prescribes a Small penalty fftr a/ breach of the statute, — in an action to recover damages for delay in transporting cattle which were delivered to the defend- ant railroad company, a common carrier by a connecting line, for transportation, it appeared that the defendant had arrange- ments with the connecting line for thei im- mediate transportation of cattle received on Sunday. Upon demurrer to the com- plaint it was held that the Sunday statute had no application to the case ; that ac- cording to the principles of the common law applicable ' to common carriers, the defendant having accepted the stock to be transported over its road in the usual course of transit, it at once became its duty to forward the same without unnecessary delay or detention; that its obligation was to carry according to its public profession, and the conveniences at its command. And if injury were sustained by reason of any neglect of this duty, or other wrong- ful act in the carrying and delivery of the cattle, the fact of their having been re- ceived to be carried or having been carried on Sunday could afiford no excuse to the defendant, or exoneration from liability ; that the carrying forward of the cattle by the defendant on Sunday was not illegal j it was fairly and justly a work of neces-' sity, and therefore excepted from the oper' ation of the statute. Johnson v. Midland R. Co., 4 Exch. 367. That even upon the supposition that the plaintiffs were violat- ing the law in having their cattle trans- ported on a Sunday, the defendant could not avail itself of suoh infraction of the law by the plaintiffs, as a defence to an action for the consequences of a wrong or negligence of its own. See Waters v. Richmond, &c. R. Co., 110 N. C. 338; 14 8. E. Rep. 802 ; s. o. 108 N. C. 394 ; 12 S, E. Rep. 950, a case involving similar principles ; the railroad company, having failed to provide a oar on Sunday for the shipment of stock as it had contracted to do, was held liable for damages. SEC. 318.] INJURIES KECEIVED ON SUNDAY. 1425 what recent case this court has taken pains to express its unqualified disapproval of the doctrine set up by the Massachusetts eases. " With- out entering into a discussion of the subject," it was said, " we are bound to say that we do not feel satisfied, that upon any general principles of law by which the courts that have adopted the common law system are governed, this is a true exposition of that law."^ The Massachusetts doctrine has been repudiated in eVery court in which it has ever been invoked, except those of Maine,^ and Vermont ; ^ and the doctrine may be considered as well established that the fact that the injury was received on Sunday, at a time when plaintiff was violating the Sunday law, can afford no defence to an action for a tort.* And even in Massachusetts the legislature has taken the matter in hand and provided by Special statute that such a defence shall not avail,^ so that this anomalous doctrine is now repudiated in the State of its creation. If the contract of carriage was made on Sunday, it is void in most, of the States, and the passenger can maintain no action on such cOQtraot.® But, it will of course be remembered that actions against 1 Bucher v. Cheshire R. Co., 125 U. S. 555 ; 34 Am. & Eng, B-. Cas. 389. The judgment of the State- eotirt was affirmed as it was a case in which the State law had to be followed, hut the court went out of its way to express its disapproval. 2 Cratty v. City of Bangor, 57 Me. 423 ; Hinckley v. Penobscot, 42 Me. 89 ; Tillook ■ii. Webb, 66 Me. 100. See also Sullivan V. Maine Central E. Co., 82 Me. 196 | 41 Am. & Eng. R. Cas. 195, wh«re the court held that riding for exercise was not a vio- lation of the statute providing for Sunday observance. « Holconjb «. Danby, 51 Vt. 428; Johnson v. Irasbnrgh, '47 Vt. 28. See also McClary v. Lowell, 44 Vt. 116. * Louisville, &o. R. Co. v. Frawley, 110 Ind. 18 ; 28 Am. & Eng. R. Cas. 308 ; Louisville, &e. R. Co. v. Graham, 1 Ind. App. 46 ; 29 N. E. Rep. 170 ; Illinois Cent. R. Co. v. Dick (Ky. 1891), 15 S. W. Rep. 665 ; Johnson v. Missouri Pac. R. Co., 18 Neb. 690 ; 23 Am. & Eng. R. Cas. 429 ; Noms w. Litchfield, 35 N. H. 271 ; 69 Am. Dec. 546 ; Wentworth v. Jefferson, 60 N. H. 158 ; Delaware, &o. R. Co. «. Trautwein, 52 N. J. L. 169 ; 41 Am. & Eng. R. Cas. 187 ; Carroll v. Staten Island R. Co., 58 N. Y. 126 ; Kerwhacker V. Cleveland, &c. E. Co"., 3 Ohio St.l72; 62 Am. Dec. 246; Mahoney v. Cook, 26 Penn. St. 342 ; 67 Am. Dec. 419 ; Knowlton -v. Milwaukee, &c. R. Co., 59 Wis. 278 ; 16 Am. & Eng. R. Cas. 330. Laborers work' ing at a switch on Sunday to prevent & serious stoppage of trains are engaged in a work of necessity, and cannot be indicted for a violation of the Sunday Statute.- Yono.ski v. State, 79 Ind. 393 ; 5 Am. & Eng. R. Cas. 40. See also Louisville, &c. R. Co. V. Com. (Ky. 1892) 17 S. W. Rep. 274. * The benefits of this remedial statute do not extend to cases in which the injury occurred priot to the passage of the statute. Bucher v. Fitchburg R. Co., 131 Mass. 156 ; 41 Am. Rep. 216. 6 Nibert v. Baghurst, 47 N. J. Eq. 201 ; 20 Atl. Rep. 252 ; Saginaw, &c. R. Co. v. Chappell, 56 Mich. 190 ; 22 Am. & Eng. R, Cas. 16 ; Morgans. Bailey, 59 Ga. 683 ; Am. & Eng. Eney. of Law, Art. "Sunday." See also Einggold's on Sunday Law ; Harris on. Id. ; Walsh v. Chicago, &c. E. Co., 42 Wis. 23 ; Brown o. Chicago, &c. R. Co., 54 Wis. 354 ; 3 Am. & Eng. R. Cas. 444. , 1426 RAILWAYS AS CABEIBES OF PASSENGERS. [CHAP. XVII. carriers for a personal injury are ex delicto, founded on the earners breach of its public duty aud not on the contract of carriage. Sec. 318 a. Sick or Intoxicated Passengers. — The general rule has often been declared as to the duty of the company in regard to the expulsion of intoxicated or disabled passengers. Several cases involving a consideration of this duty have recently arisen, and the courts have always taken pains to declare, that even in the exercise of a lawful right the company owes a positive duty to those against whom it is enforced, and must exercise all the care which the cir- cumstances demand, to prevent injury to the expelled person.' Thus, in a case before the Kansas Court,^ the passenger was a victim of delirium tremens, and in the. course of the journey acted in such a way as to annoy and frighten his fellow-passengers, so that a number of them left the car. On reaching a station, a town of four thousand inhabitants, the conductor removed him from the train and notified the overseer of the poor ; but it appeared that he was allowed to lie exposed on the bare station platform for more than an hour, before the overseer took charge of him. The court held, 1 In the case of Connolly v. Crescent City R. Co., 41 La. An. 57 ; 37 Am. & Eng. R. Gas. 117, a passenger while riding on a street-car was stricken with apoplexy, and the driver supposing him to he drunk removed him from the car and left him lying on the edge of the sidewalk. He was perfectly helpless, and the day heing cold and rainy the exposure caused his death. The court held, that the company had a right to remove him, considering the inconvenience and annoyance his pre- sence caused to other passengers. But this right did not authorize a removal suph as was made ; the passenger being helpless the company owed him a positive duty to place him where relief could be had. A verdict against the company was therefore sustained. The court said : " We conclude therefore that the conduct of the defend- ant's agent in turning out this helpless and speechless sick passenger into the street, aud there leaving him, on an in- clement day, without the slightest attempt, at the moment or afterwards, to have him taken care of, was a gross violation of its duty." See also as sustaining similar principles, Lonisville, &a. R. Co. v. Sulli- van, 81 Ky. 624 ; 16 Am. & Eng. E. Cas. 390 ; Paddock v. Atchison, &o. R. Co., 37 Fed. Rep; 841 (removal of passenger with infectious disease) ; Hall v. South Carolina E. Co., 28 S. C. 261 ; 34 Am. & Eng. R. Cas. 311 ; Cincinnati, &o. R. Co. 0. Cooper, 120 Ind. 469. Compare Lemont v. Washington, &c. E. Co., 1 Mackey (D. C), 180. Where a passenger who had gotten into the caboose of a freight train, supposing he had a right to ride there, was put off between two stations because it was contrary to a regulation of the company to carry passengers upon such trains, when he was sick, and after he had so informed the conductor, and offered to pay his fare, the court held that there was a gross viola- tibn of the company's duty, and sustained a large verdict rendered in plaintiff's favor. Illinois Central R. Co. v. Sutton, 53 111. 397. See also Louisville, &c. R. Co. v. Crunk, 119 Ind. 542 ; St. Louis, &c. R. Co. V. Finley, 79 Tex. 85 ; 15 S. W. Rep. 266 ; Foss v. Boston, &o. R Co. (N. H.), 21 Atl. Rep. 222 ; Sheridan v. Brooklyn, &c. R. Co., 86 N. Y. 39. " Atchison, &o. R. Co. v. Weber, 33 Kan. 553 ; 21 Am. & Eng. R. Cas. 418 ; 52 Am. Rep. 543. SEC. 318 a.] SICK OB INTOXICATED PASSENGERS. 1427 that the company had an undoubted right to expel him ; it owed a duty to its other passengers to secure them from his offensive con- duct. But its duty did not, said the court, " end with his removal from the train. He Was unconscious and unable to take care of himself. The company could not leave him on the platform help- less, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for his protection and comfort. As was said by the learned court who tried this cause : ' Of course the carrier is not required to keep hospitals or nurses for sick or insane passengers, but when a passen- ger is found by the carrier to be in such a helpless condition, it is the duty of the carrier to exercise the reasonable and necessary offices of humanity towards him until some suitable provision may be made.' " ^ The duty of a railway passenger carrier to a sick pas- senger is well illustrated in a recent case in Mississippi.^ In that case the railway company received a sick passenger, the conductor and ticket-agent consenting' that he should be carried after they had been informed of his serious illness and of the necessity of his having assistance when he should arrive at his destination. But when his destination was reached, the conductor forgot to arouse him and put him qff, but allowed him to be carried thirty miles beyond, where he was put off at a small station at two o'clock in the morning and allowed to remain for forty hours, without care and attention, before he was returned to his destination on one oL the company's trains. The exposure and rough treatment so increased his illness that he died soon afterwards. The court held that the company had been guilty of a gross violation of its duty as carrier, and was liable for the death of the passenger.** And on principle ' The case was remanded for a new which threw him tb the ground, and he trial hecause the jury gave sul)stantial dara- was run over and seriously injured. Thei'e ages, although the next of kin had failed was evidence to prove that he was intoxi- to prove any damage. The court however cated, and counsel for the company con- laid down the law as above to he applied tended that he had no right on the train, and to the facts on the new trial. Atchison, that the fact of his intoxication was such &c. R. Go. ». Weber, 33 Kan. 555 ; 52 Am. contributory negligence as would bar hi§ Rep. 543. recovery. But the trial court charged as ^ Weightman v. Louisville, &c. R. Co., to this question of intoxication that : "An 70 Miss. 663; 12 So. Rep. 586. intoxicated man has a right to ride upon ' Weightman v. Louisville, &c. R. Co., the cars. The defendant is as liable for an 70 Miss. 563; 12 So. Rep. 586. injury to the intoxicated man as to the In another case, tlje train having sober man. Intoxication, as we all know, stopped, the passenger walked to the plat- — it is a matter of observation if notexpe- form to get off, but had no sooner reached rience, — makes a man less capable for the there than the car gave a sudden jerk protection of his own life and limb. It 1428 EAILWAYS AS CAEEIJEES OF PASSENGBES. [CHAP. XVII. there is no reason why the company should not be liable in a similar case, if the sickness of the passenger arose during the passage, and after his acceptance as a passenger, provided its officers or agents are informed of it. The contract of carriage having been entered into, the relation of passenger and carrier is established and continues to the end of the journey, and the passenger having become sick or injured in the course of the journey, the duties of the carrier towards him are measured by the necessities which his disabled state call for, and are not necessarily those which existed at the time of the formation of the contract. tends to deprive a man of the ability to 'exercise that care. If you find that the plaintiff has failed to exercise the reason- able care for his own safety, whether from intoxication or not, he cannot recover. If you find that the plaintiff was intoxicated, that proof may go to render it more prob- able that he was guilty of that degree of ilegligence which will prevent his recovery. It would bear upon the probability or im- probability of the plaintiff's having been guilty of negligence which contributed to the injury which he sustained." The Court of Appeals held that the instruction was a proper statement of the law. Milli- man v. N. Y. Central R. Co., 66 N. Y. 642. And it seems that this is unquestion- ably the correof view. Intoxication is a temporary infirmity brought on by the plaintiff's own voluntary act, and he cannot bp allowed to set it up as infirmity which would release him from all obligation to use care, and place him in the same relation which an infant of tender years would occupy towards the carrier. But at the same time it cannot be regarded as negli- gence per se ; it is only evidence of prob- able negligence, to be considered in connection with all the other facts and circumstances of the case. And as will be seen, it is a condition of which the company is bound to take cognizance, and if with full knowledge of the passenger's condition it deliberately fails or refuses to exercise care to prevent injury to him, it must be held responsible for the conse- quences. See post, § 319 a ; Missouri Pa- cific E. Co. V. Evans, 71 Tex. 361 ; 37 Am. & Eng. B. Cas. 144. A drunken pas- senger on a train was, owing solely to his condition, carried past his destination, and then, failing to comprehend his liabil- ity fo pay further fare or to get off the train, was removed, in a lawful manner, from the train by the conductor and his assistants, and placed a short distance from the track. Later on he wandered upon the track and was killed by being run over by a train at a point where those in charge of the latter train could not see him in time to prevent the accident. It was held that the company was not liable for his death. McClelland v. Louisville, • &c. E. Co., 94 Ind. 276. SBC. 319.] CONTBIBTJTOKY NEGLIGENCE, ETC. 1429 CHAPTEE XVIII. Negligence. Sec. 319. Negligence: the General Doc- trine. 319 a. Contributory Negligence : 320. Injuries to Trespassers on Track, etc. : Cliildren. Children injured by dangerous Agencies, left exposed in Public Placps. ' Imputable Negligence: Parent and Child. 321. 322. Sec. 322 a. Imputable Negligence. Case of Carrier and Passenger. 322 J. Comparative Negligence. 323. Injuries at Highway-crossings. 324. Frightening Teams. 325. Liability for Injuries where one Company runs on Road of another. 325(1. Presumption of Negligence : Burden of Proof. 325 i. Evidence. Sec. 319. Negligence, What is : Contributory ITegligenoe, etc. — Negligence may be defined as a want of due care ; and the care required in a given case depends upon the consequences likely to ensue if such care is not observed. It is sometimes, indeed gener- ally, said that the standard of care to be observed is such as a prudent man, in view of the circumstances, would observe ; ^ and this rule affords the best test for determining whether negligence exists in a given case or not. The constantly recujring question is, what ought to have been done or omitted under the circumstances, and did the defendant do what he ought not to have done, or omit to do that which he ought to have done ? And the answer to these inqiiiries, it would seem, will afford a sufficient test of liability in a given case.^ But the difficulty is in determining by what standard the questions are to be solved ; for if we leave the jury to answer these inquiries 1 DinoN, J., in Stout V. Sioux City, &o. B. Co., 2 Dill. (IT. S.) 294. See Bal- timore, &c. R. Co. ». Jones, 95 II. S. 439, where Mr. Justice Swayne observes; " Negligence is a failure to do what a reasonable and prudent person would ordi- narily have done under the circumstances of the situation, or doing what such a per- son under the circumstances would not have done. The essence of the fault may lie in omission or commission. " This , however is rather a definition of a want of ordinary care than of technical negligence. * Philadelphia, &c. R. Co. v. Stinger, 78 Penn. St. 219. In this case the court say that negligence is the want of due care according to the circumstances. Marcott V. Marquette, &c. R. Co., 47 Mich. 1 ; Jamison V. San Jose, &c. B. Co., 55 CaL 593. 1430 NEGLIGENCE. , [CHAP. XVIII. according to their own notions of the care which should have been observed, it is obvious that in many cases great injustice would be done, because their ideas might be such as to require either a too small or a too high degree of care, and the question of liability would depend wholly upon their peculiar notions in this respect. There- fore, while the rule that a person should exercise such care as a prudent man in view of the circumstances would observe, does not afford an infallible test in all cases, yet it does seem to be the nearest approach to accuracy which can be given ; because without it there is no other standard than the peculiar notions of the triers them- selves. Mr. Wharton, in his excellent treatise upon Negligence, has attempted to formulate a more accurate definition of the term ; but with all due respect to his learning and' ability, it seems to us that the adoption of his definition would result in seripus confusion, and disastrously to the interests of parties in cases involving ques- tions of negligence. He says : ^ " Negligence, in its civil relations, is such an inadvertent imperfection by a responsible human agent, in the discharge of a legal duty, as produces, in an ordinary and natural sequence, a damage to another." But the difficulty with his definition is, that it is beyond the comprehension of most jurors, and affords no standard for determining in a given case whether or not this " inadvertent imperfection "exists. And herein lies the diflBculty with many of the definitions. Upon the whole we are inclined to prefer the definition given by Alderson, B.,^ that " negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would not do," or, as is said by one of our own eminent jurists,' " an omission to do something which a reasonable, prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do ; or doing something which a prudent or reasonable man would not do, under all the circumstances surround- ing the particular transaction," as stating the rule most generally applied. The definition given in a recent work is a very clear one : " Negligence, constituting a cause of civil action, is such an omission 1 Wharton on Negligence, § 3. tion that brings 'him under the duty of '' In Blyth v. Birmingham Water Works taking care." Pollock on Torts, 355. See Co., 11 Exohq. 784. The objection to a criticism of this definition as being this definition is that it is too comprehen- ■ "entirely too wide for a definition of neg- sire. The explanatory clanee suggested llgenoe from the standpoint of legal by Mr. Pollock should be added: "Pro- liability," in Beven on Tireg.,p. 1. vided, of course, that the party whose » Dillon, J., in Stout v. Sioux City, conduct is in question is already in a situa- &c. R. Co., 2 Dill. (U. S. ) 294. SEC. 319.] THE GENERAL DOCTEINE. 1431 by a responsible person, to use that degree of care, diligence, and skill which it was his legal duty to use for the protection of another person from injury, as, in a natural and continuous sequence, causes unintended damage to the latter." ^ Whichever of these definitions we adopt, it is evident that there is no absolute rule as to negligence which will cover all cases, but that each case stands upon its own peculiar circumstances.^ It will be understood, of course, that actionable negligence involves the breach of a legal duty, and is actionable only when it results in injury to others ; ^ that is, that it must appear, in order to sustain an action for negligence in a given case, not only that the defendant was negligent, but also that the injury complained of was the result of such negligence,* and was not brought about by inevitable causes, or the fault of the plaintiff.^ Negligence may be either a pure tort, a breach of contract in the nature of a tort (e. g. breach of a contract to carry safely), or a pure breach of contract. But it is only in its character as a tortious 1 1 Shear. & Red. on Neg., § 3. This definition is generally considered unexcep- tionable in all respects. Beven on Neg., p. 9; 16 Am. & Eng. Eney. Law, p: 391, n. Probably the most accurate defini- tion is that' given by Mr. Eussell in the article on Negligence, 16 Am. & Eng. Ency. Law, p. 389. He defines it thus ; S' Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care under the circumstances, in observing or performing a non-contract- ual duty, implied by law, which failure is the proximate cause of injury to- a person to whom the duty is due." It is of small practical value, however, to multiply defi- nitions of negligence. Upon the essential elements which make up the wrong the authorities substantially agree, and beyond this little is required, as there are few juries whose capacity enables them to comprehend the ultimate refinements some- times insisted upon. Reference may be made, however, to 16 Am. & Eng. Ency. Law, pp. 389-391, n., where the prin- cipal definitions are collected with criti- cisms upon each. See also Beven on Neg., pp. 1-10. Negligence is defined by Mr. Justice Brett in Haven v. Pender, 11 Q. B. Div. 503, 507; by Mr. Justice Swatne in Baltimore, &o. B, Co. v. Jones, 95 U. S. 439; by Mr. Bishop, in Bishop on Non- Contract Law, § 436; by Dr. Wharton, Wharton on Neg.,§ 3 (Salmon w.Eailroad, 38 N. J. L. 11); by Mr. Pollock, Pollock on Torts, p. 352; by Mr. Austin, in Lec- tures on Jurisprudence, p. 20. 2 Finlayson v. Chicago, &c. R. Co., 1 bill. (U. S.) 579; Philadelphia, &c. R. Co. V. Spearen, 47 Penn. St. 305; Nor- folk, &c. R. Co. V. Ormsby, 27 Gratt. ( Va. ) 321; New York, '&c. E. Co. v. Lockwood, 17 Wall. (U.S.) 357. » Cosgrove v. N. Y. Central R. Co., 13 ■ Hun (N. Y.), 329. * Johnson v, Hudson Eiver E. Co., 20 N. Y. 73; Chicago, &c. B. Co. v. Eend, 6 Brad. (111. App.) 243; Barringer ». N. Y. Central E. Co., 18 Hun (N. Y.), 398; Cos- grove V. N. Y. Central E. Co., 13 Hun (N. Y.), 329. 6 Wildes V. Hudson Eiver E. Co., 24 N. Y. 430, 40 N. Y. 51. There is no liability where the injury was the result of an inevitable accident or act of God. See Salisbury i-. Hersohenroder, 106 Mass. 458; 8 Am. Eep. 354; Baltimore, &c. E. Co. V. School District, 96 Penn. St. 65 ; 2 Am. & Eng. R. Cas. 16 ; EUett v. St. Louis, &c. E.~Co., 76 Mo. 518; 12 Am. & Eng. R. Cas. 183 ; Cooley on Torts, p. 80j Patterson's Ry. Aoc. Law, 35. 1432 NEGLIGENCE. [CHAP. XVIII. injury that it is important here.^ Separating it into its elements, it appears, therefore, that actionable negligence consists of : — 1. A legal duty, not dependent wholly upon contract, to use ordi- nary care under the circumstances in which the parties are placed. 2. A breach of this duty, not wilful. 3. Injury to the party to whom the duty is due, of which the breach of duty was the proximate cause.^ The prime essential of negligence being a failure to exercise ordi- nary care in the discharge of the duty involved, the principal question in all actions for negligent injury is whether or not the defendant in fact failed to exercise such- care. This is a question of fact, and must vary with the circumstances in which the parties are situated and the relations which they sustain towards each other. No definite rule therefore can be stated.' The test is whether defendant exercised such care as a man of ordinary prudence would have used under similar circumstances. If he has either done, or omitted to do, some- thing which an ordinarily careful and prudent person in the same relation and under the conditions and circumstances would not have done, or omitted to do, he has failed to use ordinary care, and must therefore be held to be guilty of negligence and liable for the damage which may have resulted from his action.* All the attendant circum- 1 Negligence as a pure breach of con- which a person of ordinary prudence is tract belongs properly to the domain of presumed to use, under the peculiar cir- contract law, but even there it has a very cumstances, to avoid injury, and should be limited scope since most breaches of con- in proportion to the danger to be avoided tracts are wilful. See Bishop on Non- and the fatal consequences involved in his Contract Law, § 76 ; f oUoek on Torts, neglect. Toledo, &c. R. Co. v. Goddard, 432; Courtenay v. Earle, 10 C. B. 73. 25 lud. 185. See Brown ». Congress, &c. " See 16 Am. & Eng. Ency. of Law, p. R. Co., 49 Mich. 153 ; 8 Am. & Eng. R. 389; Beven on Neg., 9. Cas 383; Fowler v. Baltimore, &c. R. Co., In 1 Shear. & Red. on Neg. (4th ed.), 18 W. Va. 579 ; 8 Am. & Eng. R. Cas. S 5, a very clear analysis is made ; "Neg- 480; Norfollc,i &c. K. Co. v. Ormsby, 27 ligence," these authors say, "consists in: Gratt. (Va.) 455 ; Pollock on Torts, 36 ; "1. A legal duty to use care. Bishop on Non-Contract Law, § 436-437 ; "2. A breach of that duty. 16 Am. & Eng. Ency. Law, pp. 400 " 3. The absence of distinct intention et seq. td produce the precise damage, if any, i Grand Trunk R. Co. v. Ives, 144 U. which actually follows. S. 408 ; Matson v. Manpin, &c. Co., 75 " With this negligence in order to sus- Ala. 812 ; Richmond, &c. R. Co. v. How- tarn a civil action there must concur : ard, 79 Ga. 44 ; Toledo, &c. R. Co. v. ••1. Damage to the plaintiff. Goddard, 25'lnd. 185; Chicago, &c. K. 2. A natural and continuous sequence Co. v. Hedges, 106 Ind. 898; Funstonw. uninterruptedly connecting the breach of Chicago, &c. R. Co., 61 Iowa 452 • 14 duty with the damage, as cause and effect." Am. & Eng. R. Cas. 640; Needham ». See also Dr. Wharton's analysis, Whart. Louisville, &c. R. Co., 85 Ky. 423 ; Briggs ""^ ?!?•>§ 8. 1). Union St. R. Co., 148 Mass. 72; 87 Ordinary care is that degree of care Am. & Eng. R. Cas. 204; Jageru. Adams, SEC. 319.] THE 6ENEKAL DOCTRINE. 1433 stances, the time and place >of the occurrence, must be considered together ; a person cannot be charged with a failure to exercise ordi- nary care because in a situation of danger or emergency, necessitating instant action, he did not take all the precautions which from a careful and deliberate' retrospective view of the situation it appears might have been taken. The inquiry is what would a man of ordinary prudence and care have done in the same situation of emer- gency when suddenly presented to him ? ^ It follows, therefore, that the question as to what constituted ordinary care under the circum- stances is one of fact and for the jury to determine. It is one of those questions which calls especially for the exercise of a jury's functions, and cannot become a question for the court unless the facts are all admitted and there is but one inference that can be fairly and reasonably drawn from them.* 123 Mass. 26; Durant v. Palmer, 29 N. J. L. 546 ; Key v. Philadelphia, &c. R. Co., 65 Penn. St 269; Gulf, &c. B. Co. v. Smith, 69 Te». 406; Fowler t>. Baltimore, &c. R. Co., 18 W. Va. 579; 8 Am. & Eng. E. Cas. 480; GravlUe w. Minneapolis, &o. E. Co., 10 Fed. Rep. 711; Harris v. Union Pac. R. Co., 13 Fed. Rep. 591; Baltimore, &c. E. Co. V. Jones, 95 U. S. 442; 4 Am. & Eng. Ency. Law, p. 22 ; 16 id. 403 ; Pollock on Torts, 36. See also Wahash, &c. R. Co. V. Locke, 112 Ind. 404, known as the " Tall brakeman case." lu the case of Louisville, &o. R. Co. v. McCoy, 81 Ky. 403, 15 Am. & Eng. E. Cas. 277, the court states the test that ordinary care by the employfe of a railroad company is that degree of care which a majority of men, of prudent and careful habits, would exercise under like circum- stances to avoid injury to their own per- sons from the same risks which others undergo in obedience to orders or by reason of their hazardous business. It is going too far to require that care which any of such persons would take of "his family," if placed under the same circumstances. In Louisville, &c. B. Co. v. Gower, 85 Tenn. 465, the judge in stating the test went on to explain to the jury that ordi- nary care meant "just such care as one of you similarly employed would have exer- cised under the circumstances." This was held to he an erroneous statement of the rule. See also Austin, &c. R. Co. v. VOL. II. — 40 Beatty, 73 Tex. 692; "Westbrook v. Mobile, &c. R. Co., 66 Miss. 560. " Karr v. Paiiks, 40 Cal. 188; Moore v. Central R. Co., 47 Iowa; 688; Fraudsen v. Chicago, &c. R. Co., 36 Iowa, 372. * Grand Trunk R. Co. v. Ives, 144 U. S. 408; East Tennessee, &c. E. Co. v. Bayliss, 74 Ala. 150; 19 Am. & Eng. R. Cas. 480; Sloan v. Central Iowa E. Co., 62 Iowa, 728; 11 Am. & Eng. R. Cas. 145; Pennsylvania Co. v. Frana, 112 111. 398; ■White V. Missouri Pac. E. Co., 31 Kan. 280; 13 Am. & Eng. E. Cas. 473; Con- nolly V. City of Waltham (Mass.), 31 N. E. Rep. 302; Lasky v. Canadian Pac. R. Co., 83 Me. 461; 22 Atl. Eep. 367; Ken- nedy V. Hannibal, &c. R. Co., 80 Mo. 573, Griffin v. Auburn, 58 N. H. 121; Texas, &c. R. Co. V. Levi, 59 Tex. 674; 13 Am. & Eng. Cas. 464; Atkinson v. Goodrich. Transportation Co., 60 Wis. 141. Al- though the facts may be undisputed, it is for the jury and not the court to determine whether proper care was used and defend- ant was guilty of negligence, unless the inference to be drawn from the admitted facts are too plain to admit of any doubt in a reasonable mind. Ohio, &c. E. Co. V. Collam, 73 Ind. 261 ; 5 Am. & Eng. E. Cas. 554; Hathaway w. East Tennessee E. Co., 29 Fed. Rep. 489 ; Vinton v. Schwab, 32 Vt. 612. See also Knight v. Albemarle, &c. R. Co., 110 N. C. 58; 14 S. E. Rep. 650 (held a question for the court); Wool- wine V, Chesapeake, &c. R. Co., 36 W. Va. 1434 NEGLIGENCE. [CHAP. XVIII. The deiSnition of ordinarj' care follows from the test above described. It is to be observed that there is no standard by *which we can measure care, and then label it as gross, ordinary, or slight, and there is therefore no reason in the doctrine of degrees of negli- gence. The kind of care necessary to be exercised may vary with the relation of the parties, — care which would constitute the meas- ure of a carrier's duty to a trespasser would by no means suffice in the discharge of his duty to his passenger. But still, in every case, the care which i^ owing is ordinary care, that is, that care which an ordinarily prudent man would have exercised under the circum- stances and in the same relation?- The doctrine of degrees of negli- gence has been repudiated in all the higher courts of the country with one exception ; it is wrong in principle and vicious in practice and leads only to confusion and mistake.^ As observed by a lead- ing writer, it is a solecism to speak of " ordinary " negligence, since if the negligence were ordinary, — i. e. in accordance with the usual course of practice among all men of average prudence, — it would not be negligence at alL^ But it is not enough merely to prove a want of ordinary care on the part of the defendant. It is a fundamental principle that the law regards only the proximate cause of an injury ; it is one of its favorite maxims that in jure, causa promma non remota spectatur.^ Out of the application of this maxim grows the liability or non-liability of a defendant charged with the infliction of an injury by his wrongful 329; 16 S. E. Eep. 81; Chaffee v. Old stances." Mr. Ju.stice Davis in Milwau- Colony R. Co. (R. I.), 24 Atl. Eep. 141. fcee, &o. R. Co. v. Arms, 91 U. S. 494. » Bishop on Non-Contract Law, § 439; And the same term has been very aptly 16 Am. & Eng. Ency. Law, 398, 399; spoken of by Lord Cranworth as nothing Legg V. Midland By. Co., 1 H. & N. 781 ; more than negligence " with a vituperative Wharton on Neg.,§ 25; Norfolk, &c. R. epithet attached." Wilson v. Brett, 11 Go. r. Budge, 84 Ta. 63; Philadelphia, &c. M. & W. 113. See also Beal v. South K. Co. V Boyer, 97 Penn. St. 101; 2 Am. Devon R. Co., 3 H. & C. '327; McPheeters &Eng.R.Cas. 172; Smith's Law of Neg., i>. Hannibal, &c. R. Co., 45 Mo. 22- »14; Shear & Red. on Neg., § 45. Mariner v. Smith, 5 Heisk. (Tenn.) " Steamboat New World v. King, 16 208 t^Jp' r ^-KT^^"^^"'"- ^- ^- ^^°- '"lShear.&Red.onNeg.(4thed.),§48. tral R. Co., 24 N. Y. 196; McAdoo .. 4 Broom's Legal Maxims (8th ed ), p. R^hmond, &c. R^Co 105 N. C. 140; 165 ; Bishop on Non-Contract Law, § fo Lane «. Boston, &o. R. Co., 112 Mass. et seg. ; ^tna L. Ins. Co. «. Boone! 95 ltLn„tir'?^l'^'"''/""''''''^'*«™' ^- S- ^30; McGrew v. Stone. 53 Penn. It IS doubtless to be understood as mean- St. 436 ; Pollock on Torts, 26 ; Shear. & ing a greater want of care than is implied Red. on Neg. (4th ed.), §§ 25-40 ; d^mp- trail ro"lvm"Tl,"t'«"''''',\"* '^" °" Neg- § H 8 ; Cooley «; To,?s atter all It only means the absence of the (2d ed. ), 68 69 71 care that was requisite under the circum. ' SEC. 319.] THE GENERAL DOCTRINE. 1435 act ; for unless tlie complainant can establish a proximate causal con- nection between the injury complained of and the alleged negligence of the defendant, his cause must fail.^ A proximate cause has been very accurately defined as that cause which, in a natural and con- tinuous sequence, unbroken by any efficient intervening cause, pro- duced the result complained of, and without which that result would not have occurred.^ In pursuance of a casual observation in the bpiliion of Mr. Justice Strong in a case before the Supreme Court ^ of the United States, to the effect that " it has been often held that in order to warrant a finding that negligence, or an act not amount- ing to a wilful wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it was such as might or ought to have been foreseen in the light of the attending circum- stances ;"3 there are a large number of cases which apply, as a test of the proximity of causation, the fact whether the injury might have reasonably been anticipated as a consequence of the act complained of.* But these cases applying such a test confound the element of proximate cause with that of a want of Ordinary care. If the injury could reasonably have been anticipated as a consequence of the wrongful act, then the defendant vas guilty of a want of ordinary * Clifford w. Denver, &g. R. Co., 9 Col. from, operating either alone or in conjunc- 333 ; Hariem v. St. Lonis, &e. R. Co., 65 tion with anything else, the injury comes Mo. 22 ; Sehaeffer v. Washington City R. as a first, final, or intermediate conse- Co., 105 U. S. 249, ; 8 Am. & Eng. B. quence, and the inadequate, remote cause. Gas. 69 ; Washington ». Baltimore, &c. which is not sufficient to charge the party, E. Co. 17 AV. Va. 190 ; 10 Am. & Eng. R. we may define to be on'e which has so far Cas. 749; Oil City Gas Co. u. Robinson, expended itself that its influence in pro- 99 Penn. St. 1 ; Terre Haute, &c. R. Co. ducing the injury is too minute for the 11. Buck, 96 Ind. 346 ; 49 Am. Rep. 168 ; law's notice, or a cause which some inde- 18 Am. & Eng. R. Cas. 234. pendent force merely took advantage of to ? 1 Shear. & Bed. on Neg. (4th ed.), accomplish something not the provable or § 26 ; 16 Am. & Eng. Ency. Law, p. 436. natural effect thereof." Bishop on Non- See also Louisiana Mut. Ins. Co. ». Tweed', Cohtract liaw, § 41. 7 Wall. (tr. S. 44 ; Milwaukee, &o. R. « Milwaukee, &c. E. Co. v. Kellogg, 94 Co. ». Kellogg, 94 U. S. 469 ; Wharton IJ. S. 469, 475. on Neg., § 97 ; Pollock on Torts, 36, 37 ; * Hoag v. Lake Shore, &c. R. Co., 85 Beven on Neg., pp. 80, 81, 90. "Nor Penn. St. 293, 298; 27 Am. Rep. 653 (fire yet is it possible," says Mr. Bishop, "that spreading from one building to another) ; there should be any such enunciation of Pennsylvania R. Co. v. Hope, 80 Penn. this doctrine as will furnish alone the St. 373 ; 21 Am. Rep. 100 ; Phillips v. practical guide needed for every sort of case. Dickerson, 85 111. 11 ; 28 Am. Rep. 607, But with proximate accuracy we may de- 609 ; Greenland v. Chaplin, 5 Exch. 248 ; fine the immediate cause which is adequate Clark v. Chambers, 3 Q. B. Div. 327. to charge the party putting it forth, to See the numerous cases collected in 16 Am. be any wrong sufficient in magnitude for & Eng. Ency. Law, pp. 436-437, n. i. the law to take cognizance of it, where- 1436 NEGLIGENCE. [chap. XVIII. care in failing to provide against it; but manifestly this has nothing to do with the causal connection between the act and the injury.^ Consequences which follow a certain act in an unbroken sequence and without any intervening efficient cause are natural and are the proximate consequences of .such act, and for them the original cause is responsible whether they could or ought to have been foreseen or not.^ But the chain of causation is broken if, "between the injury and the alleged wrongful act, there intervened a new and ef&ci^nt cause.^ Such an intervening cause is not merely a condition, whether the product of the defendant's act, or of other circumstances ; * it is " a new and independent force which breaks the causal connection between the original wrong and the injury, and itself becomes the direct and immediate — the proximate — cause." ^ This intervening, efScient cause may be either culpable or not culpable, accidental or intentional, animate or inanimate. The test is, was it a new and independent force acting in and of itself in causing the injury and 1 16 Am.&Eng, Enoy. Law, p. 438-439 ; Pollock on Torts, 36, 37 ; Alabama, &c. R. Co. V. Chapman, 80 Ala. 615 ; 31 Am. & Eng. R. Cas. 394 ; Ehrgott v. Mayor, &c., 96 N. Y. 264 J 48 Am Rep. 622. "When it has been once determined that there is evidence of negligence the per- son guilty of it is equally iable for its consequences, whether he could have fore- seen them or not." Smith v. London, &c. Ey. Co., L. R. 6 C. P. 14 ; 5 C. P. 98 ; Seven on Neg.,,pp. 80, 81. The distinc- tion between the two tests is very clearly stated by Mr. Smith in his work on Neg- ligence, p. *16. " The word ' proximately ' is to be distinguished from the word ' cul- pably.' An act to be culpable, that is, to be a breach of legal duty, must, as we have seen, be such as a reasonably careful man would foresee would be productive of injury, and the person is not liable for an injury which he could not foresee ; but a breach of duty to be proximately produc- ing injury must be such that whether defendant could foresee the injury to be probable or not, the breach of duty is in fact the actual cause of the injury." Smith on Law of Neg., "le. See also Chicago, &c. E. Co. v. Starr, 42 III. 174; 89 Am. Deo. 422 ; Gould v. Slater Woolen Co., 147 Mass. 315. 2 Brown v. Chicago, &c. E. Co., 54 Wis. 342 ; Smith v. London, &c. Ey. Co., L. R.-6C. P. 14; 6 C. P. 98 ; Louisville, &c. R. Co. V. Nitsche, 126 Ind. 229 ; 45 Am. & Eng. R. Cas. 532 ; Alabama, &c. R. Co. V. Chapman, 80 Ala. 616 ; 31 Am. & Eng. R. Cas. 394 ; Lowery v. Manhattan R. Co., 99. N. Y. 158 ; 23 Am. & Eng. R. Cas. 276 ; Liming v. 111. Central R. Co., 81 Iowa, 246 ; 47 N. W. Rep. 67 ; Mil- waukee, &c. R. Co. V. Kellogg, 94 XT. S. 469; Hill v. Winsor, 118 Mass. 251; Louisville, &c. R. Co. v. Krinning, 87 Ind. 351 ; 16 Am. & Eng. Ency. Law, p. 439 ; Bishop on Non-Contract Law, § 457. ' Louisville, &c. E. Co. v. Kelsey, 89 Ala. 287 ; 7 So. Rep. 648 ; Read v. Nichols, 118 N. Y. 224 ; Fairbanks, v. Kerr, 70 Penn. 86 ; 10 Am. Rep. 664 ; Shear. & Red. on Neg. (4th ed), § 37. * Wharton on Neg., §§ 85, 86 ; Atch- ison V. King, 9 Kan. 550. ^ Bishop on Non-Contract Law, §§ 42, 836 ; Pennsylvania Co. v. Whitlock, 99 Ind. 16 ; 60 Am. Rep. 71 ; Scheffer v. Washington City E. Co. , 105 V. S. 249 ; 8 Am. & Eng. R. Cas. 59 (suicide case) ; Beall V. Athens, 81 Mich. 536. SEC. 319.] THE GENERAL DOCTRINE. 1437 supersediiig the original wrong complained of sO as to make it re- mote in the chain of causation, although it may still have remotely contributed to the injury as an occasion or condition thereof.' The defendant's wrongful act may be one of several causes, each of which acting with the others was a proximate cause of the injury. In auch cases it is no defence that defendant's wrong was merely one of the several concurrent causes, and this whether such con- current causes are culpable and responsible or not. The injured party may hold any or all of the responpble authors liable, and is not bound to separate and distinguish the exact effects produced by each.? Prominent Ulusfcrations of this principle are seen where an injury is occasioned by the collision of trains owned and operated by different companies, both of which are in fault,^ and where the injury inflicted combines with a disease already existing, or a predis- position to disease, and causes an injury which neither cause alone would have produced. In such cases the negligent injurer is liable for all the consequences following his wr9ngful act, though they are increased by the disposition to disease.* Illustrations of all these propositions might be multiplied ; the books are full of them.^ But the great difficulty in the law of negli- 1 16 Am, & Eng. Ency, Law, p. 445 ; negligence is a proximate cause. Johnson Milwaukee, &c. R. Co. v. Kellogg, 94 U. v. Northwestern iTeleph. Co. (Minn.),^51 S. 469 ; Louisiana Mut. Ins. Co. v. Tweed, N. W. Rep. 225. 7 Wall. (U. S.) 44 ; Lewis v. Flint, &c. E. = Colegrove v. New York, &c. E. Co., Co., 54 Mich. 55 ; 18 Am. & Eng. E. Cas. 20 N. Y. 492 ; Cuddy v. Horn, 46 Mich. 263 ; Scale v. Gulf City R. Co.;- 65 Tex. 596 ; 41 Am. Eep. 178 ; Cooper v. Eastern 274; 57 Am. Eep. 602 ; Washington v. Transp. Co., 75 N. Y. 116. See these Baltimore, &c. E. Co., 17 W. Ta. 190 ; 10 cases examined more at length further on. Am. & Eng. E. Cas. 749. * Baltimore, &c. R. Co. v. Kemp, 61 2 2 Thomp. on Neg., p. 1084, §3; Md. 74 ; 48 Am. Eep. 134; 18 Am. & Cartenille v. Cook, 129 111. 152 ; 16 Am. Eng. R. Cas. 220 : McNamara v. Clinton- St. Rep. 248-250, n. (in this note the ville, 62 Wis. 207 ; 51 Am. Eep. 722. See Authorities are all collected) ; Grand Trunk also post, pp. 1440-1443. E. Co. V. Cummings, 106 U. S. 700 ;Lll * In the case of Lowery v. Manhattan Am, & Eng. R. Cas. 254 ; Slater v. Mer- E. Co., 99 N, Y. 158, it appeared that fire sereau, 66 N. Y. 138; Wahash, &c. R. fell from a locomotive on defendant's road Co. V. Shacklet, 105 111. 364; 44 Am. upon a horse attached to a, wagon in the Rep. 791 ; 12 Am. & Eng. R. Cas. 166; street helow, and upop the hand of the North, &c. E. Co. v. Mahoney, 57 Penn. driver. The horse hecame frightened and St. 187 ; Cleveland, &c. R. Co. v. Terry, ran away, the driver attempted to drive 8 Ohio St. 570 ; Pittsburgh, &c. E. Co. v. him against the curbstone to arrest his Spencer, 98 Ind. 186; 21 Am. & Eng. R. progress, and in doing so the wagon passed Cas. 478 ; Cool(Sy on Torts (2d ed.), [133] over the curbstone, threw the driver out, 153. Where the negligence of a third and plaintiff, who was on the sidewalk, person concurred with that of defendant to was run over and injured. Jn an action produce the injury so that without either against the railroad company to recover it could not have occurred, defendant's damages for alleged negligence causing the 1438 NEGLIGENCE. [CHAP. XVIH. gence lies not in securing accurate and correct definitions, nor in determining the principles which underlie the case, but in the appli- cation of these to the various and widely differing cases which arise.^ The courts generally hold that the question as to whether or not de- fendant's act was a proximate cause of the injtiry is a question for the jury^ and the refinements of legal learning are not generally con- sidered by the twelve men who find the verdict. No ultimate and absolute test has yet been or ever can be formulated. It is by analysis and by recorded experience, rather than by definition, that the distinc- tion between proximate and remote causes is to be properly made. If the wrong and the legal damage are not known by common ex- perience to be usually in sequence, and the damage does not accord- ing to the ordinary course of events follow from the wrong, they are not sufficiently conjoined, or concatenated as cause and effect, to sup- port an action.^ If the damages would not have followed the wrong if other independent circumstances had not intervened, for which the defendant is not responsible, the damage cailnot be said to be the proximate result of the wrong, or so connected therewith as to uphold a recovery therefor.* But a wrong-doer is responsible for all the consequences that ensue in the ordinary and natural course of events, although those events are brought about by the intervening agency of others, provided the intervening agency, was set in motion by the primary wrong-doer, or the acts causing the damage were the injury, the court charged, in substance, Pennsylvania K. Co. u. Kerr, 62 Penn. St. that if the jury believed the coal fell 353, distinguished. See also Board of through negligence on the part of the de- Com'rs v. Sisson, 2 Ind. App. 311 ; 28 N. fendant, causing the horse to become un- E. Eep. 374. manageable and to run against the plaintiff, i In this connection see the very admi- ' inflicting the injury, defendant was liable ; rable treatise of Mr. W. H. Russell in and refused to charge that if the accident volume 16 of the Am. & ^ng. Ency. Law, occurred through the driver's error of pp. 428 et seq, where the doctrine of oausa- judgment in endeavoring to obtain control tion is examined. of the horse, plaintiff could not recover. ^ y^e^t Mahoney v. Watson, 112 Penn. It was held that this was no error ; that so St. 574 ; 116 Penn. St. 344 ; Dunn ti. long as the injury was chargeable to the Cass. Ave. R. Co., 21 Mo. App. 188 ; Mil- original wrongful act of the defendant, it waukee, &c. E. Co. «. Kellogg, 94 IT. S. was liable ; that the action of the driver in 469 ; Webb d. Rome, &c. R. Co. , 49 N. Y. view of thp exigency of the occasion, 420 ; Henry v. Southern Pac. R. Co., 50 whether prudent or otherwise, might be Cal. 176 ; Chicago, &o. E, Co. v. Pennell, considered as a continuation of the original 110 111. 435; Hoyt v. Jeffers, 30 Mich, act, and so that act was the proximate, not 181 ; Smith v. London, &6. Ry. Co., L. R. the remote, cause of the injury ; also, that 6 C. P. 98. the injury was a natural and probable con- » Lord Campbell in Gerhard v. Bates, sequence of defendant's negligence. Ryan 2 El. & Bl. 490. V. N. Y. Central R. Co., 35 N. Y. 210 ; * Hoey v. Felton, 11 C. B. N. s. 146. SBC. 319.] THE GENERAL DOCTRINE. 1439 - necessary or legal and natural consequences of the original wrongful act.^ Mere conditions or occasions that intervene between the origi- nal act and the injury cannot be considered the proximate cause, although they may be nearest in point of time.^ Nor can they be considered as intervening efficient causes, breaking the causal connection between the injury and the original act. The most apt ' illustration of this rule relating to the concatenation of cause a/nd effect is to be found in what is known as the Squib Case.^ In that case the defendant threw a lighted squib into the market-house, in a market-place, during a fair, and the squib fell upon a gingerbread' stall ; the stall-keeper, to protect himself and wares, threw it across the market-house, where it fell upon another stall, and was again , thrown off, and exploded near the plaintiff's eye and blinded him ; it was held that the original thrower was responsible in damages for the injuries sustained by the plaintiff through the interven- ing agency of the bthers. " All the injury," said De Grey, C. J., " was done by the iirst act of the defendant. That and all the inter- vening acts of throwing must be considered as one single act* It is the same as if a cracker had been flung which had bounded and re- bounded again and again before it had struck out the plaintiff's eye." In an early American case,* the defendant, having had a quarrel with a boy in the street, took up a pickaxe and pursued him, and 1 Addiaon on Torts (Wood's ed.), 13. 18 Am. & Eng. R. Gas. 2S3 ; Scheffer u. It matters not how tnany conditions or Washington City R. Co., 105 U. S. 249 ; causes intervene, if the defendant's act is 8 Am. & Eng. R. Cas. 259 ; Bishop on still the efiSeient cause he remains liable. Non-Contract Law, §§ 41-48. ' MaeMahon b. Davidson, 12 Minn. 357 ; ' Scott v. Shepherd, 3 Wils. 403 ; 1 Nagel V. Missouri, &a. R. Co.; 75 Mo. Wm. BlaoTcstone, 892 ; 1 Smith's L. Cas. 653; Whart. onNeg,, § 154. 417. See Cooky on Torts, p. 71. ' ■2 Washington w. Baltimore, &c. R. Co., * Vandenburgh v. Truax, 4 Den. (N, 17 W. Va. 190 ; 10 Am. & Eng. R. Cas. Y.) 464. Defendant sold gunpowder to a 749 ; Hofnagle v. New York, &o. R. Co., child, but the child gave all the powder to 55 N. Y. 608; Cuff o. Newark, &e. R. Co., its parents, who afterwards allowed the 35 N. J. L. 32; Pennsylvania Co. v. Whit' child to take some of it, by the accidental lock, 99 Ind. 16; 50 Am. Rep. 71. "One explosion of which he was injured. In an of the moat valuable criteria furnished us action against defendant it was held that by the authorities," qbserves Mr. Justice he was not liable, even admitting his neg- MiLLEE, " is to ascertain whether any ligence-, since the act of the parents in neg- new cause has intervened between the ligently allowing the child to have the pow- fact accomplished and the alleged cause, der was such an intervening efficient cause If a new force has intervened, of itself as to break the causal connection between sufficient to stand as the cause of the mis- defendant's wrongful act and the ultimate fortune, the other must be considered as injury. Carter v. Towne, 98 Mass. 567 J too remote." Louisiana Mut. Ins, Co. v. 96 Am. Dec. 682. See also Cuff u. Newark, Tweed, 7 Wall. (U. S,) 44. See also &e. R. Co., 35 N. J. L. 32 ; Lange v. Lewis V. Flint, &c. R. Co,, 54 Mich. 55 j Wagner, 52 Md. 310j 38 Am. Rep. 380. 1440 NEGLIGENCE. [CHAP. XVIII. the latter ran for safety into a wine-shop and upset a cask of wine. The pursuer of the boy was held responsible for the loss of the wine. 50 if while a person is riding a horse, another person whips it, in consequence of which it runs away and runs over some other person, or damages his property, he who whipped the horse is responsible for the injury, and not the person who rode the horse.^ These rules are time-honored and indisputable, and are universally applied, ex- cept in cases where the courts cut adrift from principles. In the case of personal injuries received by passengers through the negli- gence of a railway company, they are especially applicable, and necessary to secure to the injured party his just rights. If a passen- ger is, through the negligence of a carrier, left at the wrong station late at night, whereby he is compelled to walk a long distance to reach his place of destination, and during his attempt to reach his place of destination contracts a severe cold, or is lamed by the exer- tion, it is unreasonable to say that there is no such immediate connec- tion between the wrong and the injury as to entitle the passenger to recover therefor ; and the tendency of the c6urts, both English and American, is to hold that such injuries are sufficiently connected with the wrong to be the subject of damages.^ Where the negligence of the defendant causes an injury, the effects of which are subsequently aggravated by a predisposition to disease already existing in the injured party, the defendant's wrongful act is considered the proximate cause of all the consequences attending the injury, and the disease of the party injured constitutes no de- fence, it being not a cause but a mere condition or incident of the injury ; nor can it even be considered in mitigation of dam- ages.8 Thus, in a case in Maryland,^ in an action brought by a husband and wife to recover damages for personal injuries to the 1 Gibbons v. Pepper, 2 Ld. Eaym. 38. ingham v. Sioux City. &c. R. Co., 62 2 Brown v. Chicago,, &c. E. Co., 54 Iowa, 285; 18 Am. & Eng. R. Gas. 14; Wis. 342 ; Baltimore City Pass. R. Co. v. Heirn v. MoCaughan, 32 Miss. 17 ; Mo- Kemp, 61 Md. 619 ; 48 Am. Rep. 1.34 ; bile & Ohio E. Co. v. McArthur, 43 Miss. Drake v. Reily, 93 Penn. St. 492 ; McMa- 180; Stewart v, Ripon, 38 Wis. 584. The hon V. Field, 45 L. T. N. s. 381 ; 7 Q. B. only case opposing this view is that of Div. 591. Pullman Palace Car Co. v. Barker, 4 Col. » Louisville, &e. R. Co. v. Snyder, 117 344; 34 Am. Rep. 89, and it has been Ind. 435 ; 37 Am. & Eng. R. Cas. 137 ; repudiated in every court in which it has McNamara v. Clintonville, 62 Wis. 207; been cited as authority. See Brown ». 51 Am. Rep. 722 ; Baltimore, &c. R. Co. Chicago, &c. R. Co., 51 Wis. 360. V. Kemp, 61 Md. 619 ; 48 Am. Rep. 134; 4 Baltimore, &o. R. Co. v. Kemp, 61 Com. u. Warner, 4 McLean (0. S.), 464 ; Md. 619 ; 48 Am. Rep. 134 ; 18 Am. & Com. V. Fox, 7 Gray (Mass.), 585 ; Kitter- Eng. R. Cas. 220. SBC. 319.] THE GENERAL DOCTRINE. 1441 wife, caused by the negligence of the, defendants, the wife having testified that, shortly after the injury complained of, a cancer was developed at the place on her person where she was injured, and medical testimony having been offered on both sides of the question, whether the cancer was the result of the injury, — it was held that it was foi: the jury to determine as a matter of fact whether the can- cer did result from the injury received ; and in determining this . question they were required to consider all the circumstances and coincidences of the case, in connection with the testimony of the professional witnesses ; that if the jury believed from all the evi- dence before them that the cancer was the natural and proximate consequence of the blow inflicted by the negligent act of the defend- ant, it would properly form an element to beconsidered in awarding damages for the pain and injury suffered' by the female plaintiff ; and that the fact that she may have had a tendency or predisposition to cancer, could afford no proper ground of objection to her claim. ^ ^ See alsiy Bishop v. St. Paul, &o, B. Go. (Minn.), 50 K. W. Rep. 927 ; Louis- ville, &c. E. Co. V. Korthington, 91 Tenn. 56; 17 S. W. Eep. 880 (distinguishing Jackson ■». Railroad Co., 25 Am. & Eng. E. Caa. 327); Milwaukee, &c. R..Co. i>. Kellogg, 94 U. S. 469 ; Houston, &c. E. Co. V. Frederieka, Tex. 1882 ; Jewell v. Grand Trunk R. Co., 55 N. H. 84 ; Mc- Allister V. State, 17 Ala. 434. In the Mary- land case last cited (61 Md. 319), AlveTj C. J., said: "The question is, whether the production of cancer, as the result of any injury received by the negligence of the defendant-s under the circum- stances of this case, be too remote a con- sequence from such negligence, to form an element of damage to the plaintiff. If it be not, then clearly the court below com- mitted no eiTor in refusing the second prayer of the defendants. . It is not simply because the relation of cause and effect may be somewhat involved in obscurity, and therefore difficult to trace^ that the principle obtains, that only the natural and proximate results of a wrongful act are to be regarded. It is only where there may be a more direct and immediate suffi- cient cause of the effect complained of, that the more remote cause will not be charged with the effect. If a given result can be directly traced to a particular cause, as the natural and proximate effect, why should not such effect be regarded by the law, even though such cause may not always, and under all conditions of things, produce like results ? It is the common observation of all, that the effects of per- sonal physical injuries depend much upon the peculiar conditions and tendencies of- the persons injured ; and what may pro- duce but slight and comparatively nnin- jurious consequences in one case, may produce consequences of the most serious and distressing character in another. And this being so, a wrong-doer is not per- mitted to relieve himself from responsibil- ity for the consequences of his act by showing that the jnjury would have been of less severity if it had been inflicted upon any one else of a large majority of the human family. Hence the general rule is, that in actions of tort like the present - the wrong-doer is liable for all the direct injury resulting from his wrongful act ; and that too although the extent or special - nature of the resulting injury could not, with certainty, have been foreseen or con- templated as the probable result of the act done. If therefore the jury believed, from all the evidence before them, that the can- cer in the breast of Mr-s. Kemp was the natural and proximate consequence of the blow received on her breast, by the negli- 1442 NEGLIGENCE. £CHAP. XVIII. But where aa existing disease is merely aggravated by the defend- ant's wrongful act, the recovery must be limited to compensation for the aggravation, and cannot include damages for the existence of the disease itself,^ although the disease cannot be regarded as an intervening cause which will operate to make defendant's wrong remote in the chain of causation.^ gent act of the defendants, it would prop- erly form an element to be considered in awarding damages for the pain and injury suffered by her. If by the blow received a severe contusion had been produced, re- sulting in an ordinary tumor or open ulcer, we suppose no question would have t)eeu raised as to the right of the plaintiff to show such results of the injury received, as indicating the extent of the injury and the degree of suffering endured. Why should a different rule be applied to this case ? That the female plaintiff may have had a tendency 6r predisposition to cancer, can afford no proper ground of objection. She, in common with all other people of the community, had a right to travel or be carried in the cars of the defendants, and she had a right to enjoy that privilege without incurring the peril of receiving a wrongful injury that might result in in- flaming and developing the dormant germs of a fatal disease. It is not for the defend- ants to say that because they did not, or could not in fact, anticipate such a result of their negligent act, they must therefore be exonerated from liability for such con- sequences as ensued. They must be taken to know, and to contemplate, all the natural and proximate consequences, not only that certainly would, but that prob- ably might flow from their wrongful act. The defendants must be supposed to know that it was the right of all classes and con- ditions of people, whether diseased or otherwise, to be earned in their cars, and it must also be supposed that they knew that a personal injury inflicted upon any one with predisposition or tendency to can- cer, might, and probably would, develop the disease. See case of Stewart v. City of Ripon, 38 Wis. 584. The defendants have cited and relied upon the case of Hobbs V. London, &o. Ry. Co., L. R. 10 Q. B. Ill ; 11 Moak's Eng. Rep. 181, as maintaining a doctrine different from that just stated by us. But in several respects that case is quite different from this. In the first place, that was an action upon contract, seeking a recovery for a breach thereof. There a passenger, who had been set down with his wife at a wrong station, sought to recover from the railway company damages for a cold which his wife had taken in consequence of the exposure in having to walk home in the rain. And it was held that the loss so occasioned was not so connected with the breach of contract as that the carrier breaking the contract would be liable. As said by the court, the catching cold by the plaintifTs wife was not the immediate and necessary effect of the breach of con- tract, ori was not such an effect as could fairly be said to have been in the contem- plation of the parties. But we suppose, with Mr. Mayne, in his work on Damages, p. 73 (Wood's ed. ), that that case would have been differently decided, if instead of putting the plaintiff down safely at the wrong place, the company had by their negligence caused any personal injury to him. Without therefore intimating that we shopld accept the decision as an author- ity in any case, we think it has no direct application to the case before us." 1 Louisville, &c. R. Co. v. Falvey, 104 Ind. 409 ; 23 Am. & Eng. R. Cas. 522 ; Louisville, &c. R. Co. v. Jones, 108 Ind. 551 ; 28 Am. & Eng. R. Cas. 170 ; Allison V. Chicago, &c. R. Co., 42 Iowa, 274; Northern, &c. R. Co. v. State, 29 Md. 420; 4 Am. & Eng. Ency. Law, p. 31. 2 McNamara v. Clintonville, 62 Wis. 207 ; 51 Am. Rep. 722 ; Heim v. Mc- Caughan, 32 Miss. 17 ; Williams v. Van- derbilt, 28 N. Y. 217 ; Terre Haute, &c. R. Co. V. Buck, 96 Ind. 346 ; 18 Am. & Eng. R. Cas. 234. "The' fact that the injured passenger was suffering from Bright's disease at the time he was injured, does not impair his right of recovery. SEC. 319.] THE GBNEEAL DOCTRINE. 1443 In Wisconsin/ a doctrine strictly in consonance with that ex- pressed in the Maryland case is held. In the case last cited the plaintiffs, husband and wife, were passengers on the defendant's rail- road. Through the negligence of the traiu-employds they were put off the train before they reached the station of their destination; in the dark, where they were unacquainted ; and consequently they walked along the track, in the dark, a distance of three miles to the station to which the defendant had contracted to carry them. ^ As a consequence of this walk the female plaintiff, being pregnant at the time, suffered a long illness and prostration, resulting in a miscar- riage.^ The defendant appealed, on the ground, amongst other things, that the negMgence of its employes was not the proximate cause of the plaintiff's sickness and miscarriage. The court, how-, ever, held otherwise, saying : " The rules which limit damages in actions of tort, so far as any general rules can be established, are in many respects different from those in actions on contract. The general rule is that the party who commits a trespass or other wrongful act is liable for all the direct injury resulting from such act, although such resulting injury could not have been contemplated as a probable result of the act alone.^ These cases, and many more The rule in such cases is this ; 'Where a action. If the negligence of the carrier disease caused by the iiijuiy supervenes as place the passenger in a position of such well as where the disease exists at the apparent imminent danger as to cause time of the injury and is aggravated by it, flight, and the fright causes nervous con- the plaintiff is entitled to full compensa- vulsiona and illness, the carrier's negli- tory damages.' " Elliott, C. J., in Louis- gence may be regarded as the proximate ville, &c. E. Co. I/. Snyder, 117 Ind. 475 ; cause of the injury. Purcell v. St. Paul, 37 Am. & Eug. R. Cas. 138. CUmg Ohio, &c. R. Co. (Minn.), 50 N. W. Rep. 1034, &o. R. Co. V. Hecht, 115 Ind. 443 j 34 See also Ewing v. Pittsburgh, &c. R. Co. Am. & Eng. R. Cas. 447 ; Louisville, &o. (Penn.), 23 Atl. Rep. 340 ; 29 W. N. Cas. R. Co. V. Wood, 113 Ind. 544 ; Indiana- 248. polls, &o. R. Co. V. Pitzer, 109 Ind. 179 ; » Eten v. Luyater, 60 N. Y. 252 ; Hill 25 Am. & Eng. R. Cas. 313 ; Terre'Haute, , v. Winsor, 118 Mass. 251 ; Lane v. Atlan- &c. R. Co. V. Buck, 98 Ind. 346.; Ehrgott tic Works, 111 Mass. 136 ; Keenan w. V. Mayor, 96 l*r. Y. 264 ; 48 Am. Rep. 622; Cavanaugh, 44 Vt. 268 ; Little v. Boston, Denver, &o.R. Co. v. Harris, 122 U. S. &o. E.. Co., 66 Me. 239; Collard ii. South- 597 ; Lake Shore, &c. R. Co. v. Rosen- eastern Ry. Co., 7 H. & N. 79 ; Hart v, zweig, 113 Penn. St. 519 ; 26 ^m. & Eng. Western E. Co., 13 Met. (Mass.), 99-104; R. Cas. 489 ; Houston, &c. R. Co. v. Wellington ». Downer Kerosene Oil Co., Leslie, 57 Tex. 83 ; 2 Shear. & Red. on 104 Mass. 64; Metallic Compression Cast- Neg. (4th ed.y, § 742. ing Co. v. Fitchburg E. Co., 109 Mass. 1 Brown v. Chicago, &c. R. Co., 54 277, 12 Am. Eep. 689 ; Salsbury v. Her- Wis. 342 ; 41 Am. Rep. 41. chenroder, 106 Mass. 458 ; 8 Am. Eep. ^ ^ See also Fitzpatrick v. Great- Western 354 ; Perley v. Eastern R! Co., 98 Mass, Ey. Co., 12 U. C. Q. B. 645, where pre- 414 ; Kellogg w. Chicago, &c. E. Co., 28 mature confinement resulting from an Wis. 223; 7 Am. Eep. 69; Patten v. Rail- injury was held to constitute a ground of road Co. 32 Wis. 524, and 36 Wis. 413 ; 1444 NEGLIGENCE. [chap. XVIII, which might he cited, clearly establish the doctrine that one who commits a trespass or other wrong is liable for all the damages Williams V. Vanderbilt, 28 N. Y. 247; building, the loss of the money, and tie Ward 0. Vanderbilt, 34 How. Pr. (N. value of the unexpired term; that although Y.) 144 ; Bowaa v. Pioneer Tow Line, 2 the money was kept in an unusual place, Sawy. (U. S.) 21. and the defendants may not have suspected In Stewart v. Eipon, 38 Wis. 584, it its presence, yet that they^were liable for was held that "the public streets and " ' . ■ . - ^i-- j ^ li. sidewalks of a city are for the use of the sick and infirm, and those with or- ganic predisposition to disease, as well as for that of the healthy and robust ; and the corporation is chargeable with knowl- edge that persons of the former classes constantly travel its highways, and that a bodily injury to such from a defective highway may be greatly aggravated by their diseased condition. If therefore the diseased condition of the plaintiffs arm would not have occurred but for his organic tendency to scrofula, still the defendant's negligence must be regarded as the proxi- mate cause of the whole injury. " In Oliver •». La Valle, 36 Wis. 692, the plaintiff, who was a married woman, and pregnant, was riding with her brother, and when crossing a defective bridge in a public highway the team broke through the bridge. The plaintiff jumped from the wagon and assisted her brother in an at- tempt to extricate the team. Failing in this, at the request of her brother, she ran some distance to obtain more assistance. The result of her fright and exertions was a miscarriage. She brought an action against the town, and the principal dam- ages proved on the trial were the conse- quences of such miscarriage. It was held that such damages were the proximate result of the negligence of the town, and a_ verdict and judgment therefor were sus- tained. In Eten-w. Luyster, 60 N. Y. 253, the court held that where the defend- ants tore down and destroyed a building built by them, in which the plaintiff had a sum of money in a, box, which was lost in the removal, the plaintiff was not bound to gather up the fragments of his scattered and broken chattels, but was at liberty to leave them where the defend- ants placed them, loftking to them for their value ; that the plaintiff was entitled to recover for all losses occasioned by the including the destruction of the its loss, which was the direct result of their acts. But in Pullman Palace Car Co. V. Barker, 4 Col. 344, 34 Am. Rep.- 89, the defendant's palace car, in which plain- tiff was sleeping, was burned, through the negligence of defendant's servants. The burning was so rapid that she had not time to properly clothe herself, and she left it in her stocking feet. lu doing so she was compelled to stand for a short time on the platform of another car, and caught a severe cold which caused a cessation of her menses and resulted in a long period of illness. The court said (p. 347): "Con- ceding that the appellee was compelled on account of the smoke and flames to leave the car in the half-clad condition she did, the exposure to the cold was the direct and necessary result of the appellant's negli- gence. Her subsequent illness, however, was not the result of the exposure, but the result of the exposure in her then condi- tion." This case was expressly disapproved in Brown v. Chicago, &c. K. Co., 54 Wis. 342, — the court saying in reference to it, " Thjs case is, we think, unsustained by au- thority, and is in direct conflict with the decisions of this court in the cases of Stew- art V. Ripon, and Olivers. La Valle, swpra. This decision is, it seems to me, supported by the principles of neither law nor hu- manity. It in effect says, that if an in- dividual unlawfully compels a sick and enfeebled person to expose himself to the cold and storm to escape worse conse- quences from his wrongful act, he cannot recover damages from the wrong-doer be- cause it waj his sick and enfeebled condi- tion which rendered his exposure injurious. Certainly such a doctrine does not com- mend itself to those kinder feelings which are common to humanity, and I know of no other case which sustains its conclu- sions." In Hobbs v. London, &o. Ey. Co., L. R. 10 Q. B. Ill, the plaintiff, with his wife and two children, took tickets to H. on the defendant's railway. They were SEC. 319.] THE GENERAL DOCTRINE. 1445 which' legitimately ilow directly from such trespass or wrong, whether such damages might have been foreseen by the wrong-doer or not." 1 In a New York case,^ the defendant contracted to carry the plain- tiff from New York to San Francisco, via Nicaragua ; but in conse- quence of the wrecking of the connecting vessel on the Pacific coast' he was detained several weeks on the Isthmus, where he contracted^ a local fever, which disabled him for a long time after his return tol New York, and this injury was held to constitute a good ground of recovery, In a recent case in the Supreme Court,^ where an, injury to a passenger upon a railway produced insanity, and while ' laboring under it, he committed suicide, the court held that, admitting" the negligence of the railroad company, the injury resulting from., it was not the proximate cause of the passenger's ultimate death.* set down at E. It being late at night, the plaintiff could not get a wagon nor accom- modation at an inn. They had therefore to walk five or six miles on a rainy night, and his wife took cold, was laid up in bed for some time, and was unable to assist her husband. The jury found £S for incon- venience in having to walk home, and £20 for the wife's illness and its consequences. The court held the £8 recoverable, but not the £20. The circumstances in Indiana- polis, &c. R. Co. V. Bimey, 71 111. 391, were very similar to those in the Hobbs case, except that in the latter the plaintiff " had the option to remain five or six hours and take the next train, or procure a horse or a horse and carriage; " and the opinion is based on the ground that his exposure was voluntary and unnecessary. 1 McMahon v. Field, 7 Q. B. Div. 691; Lange v. Wagner, 52 Md. 310 ; 36 Am. Rep. 380. The case of Hobbs v. London, &c. Ky. Co., L, R. 10 Q. B. Ill, is severely criticised in McMahon v. Field, 44 L. T. N. s. 175, and also in Wilson v. Newport Dock Co., L. E. 1 Ex. 177. Compare Pullman Palace Car Co. v. Bar- ker, 4 Col. 344 ; 34 Am. Rep. 89. But this last case, as already observed, has been disapproved in every court in which it has been offered as authority. 2 Williams v. Vanderbilt, 28 N. Y. 217. ' Schefferw. Washington, &c. E. Co., 105 U. S. 249. In Houston, &c. R Co. v. Leslie, 57 Tex. 83, it was held that a disease directly induced by the injury is an element of damage although such result is unusual. * Miller, J., said: "The Circuit Court sustained the demurrer on the ground that the death of Scheffer was not due to the negligence of the railroad company in the judicial sense which made it liable under the statute. That the relation of such negligence was too remote as a cause of death to justify recovery, the proximate cause being the suicide of the decedent — his death by his own im- mediate act. In this opinion we concur. Two oases are cited by counsel, decided in this court, on the subject of the remote and proximate causes of acts where the liability of the party sued depends on whether the act is held to be the one or the other ; and though relied on by plaintiffs in error, we think they both sustain the judgment of the Circuit Court. The first of these is that of Insurance Co.' t). Tweed, 7 Wall. (U.S.) 44. In that case a policy of fire insurance contained the usual clause of exception from liability for any loss which might occur ' by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power, explo.sion, earthquake, or hurricane.' An explosion took place in the Marshall warehouse, which threw down the walls of the Alabama warehouse, — the one insured, situated across the street 1446 NEGLIGENCE. [chap. XVIII. Several cases have arisen in which the imrriediate cause was one for which the carrier was not responsible, — e.g., a, storm or other act of God, — but it appeared ttat, but for the carrier's negligence in delaying the train, the injury would not have occurred, for, if the train had been on time, it would not have been in the track of the storm, or if the goods had been transported promptly, as they should have been, they would not have been subject to the agency which destroyed them. In such cases the better view is that the carrier's delay was not a cause, but a mere condition or occasion, of which the storm or other irresponsible agency took advantage, and there is properly no liability on the carrier's part, although if it had discharged its duty the injury would not have occurred.^ The test circwnstances would not naturally follow from, the burning of the elevator ; and whether it was the result of the continued effect of the sparks from the steamboat; ■with- out the aid of other causes not reasonably to be expected.' The Supreme Court affirmed this ruliug, and in commenting on the dif- ficulty in ascertaining in each case the line between the proximate and remote causes of a wrong for which a remedy is sought, says : ' It is admitted that the ruling is difficult. But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the nat- ural and probable consequence of the neg- ligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.' " To the same effect is the language of the court in Mc- Donald «. Snelling, 14 Allen (Ma.ss.), 294. 1 Denny v. N. Y. Central R. Co., 13 Gray (Mass.), 481; MeClary «. Sioux City, &o. R. Co., 8 Neb. 44; Dubuque, &c. Assoc. 1). Dubuque, 80 Iowa, 176; Memphis R. Co. I). Reeves, 10 Wall. (U. S.) 176 ; Daniels K.Ballan tine, 23 Ohio Str 532; Mo^ risouB. Davis, 20 Penn. St. 171; 1 Shear. & Red. on Neg. (4th ed.), § 40. There are cases, however, which hold the other way, but it is believed they are opposed to principle. See Condiet v. Grand Trunk R. Co., 64 N. Y. 500, and cases there cited J Michaels v. ^ew York, &c. K. Co., 80 N. Y. 564 ; Denning o. Grand Trunk R. Co., 48 N. H. 455 ; 2 Am. Rep. 267 ; Pruitt V. Hannibal, &c. R. Co., 62 Mo. from the Marshall warehouse, — and by this means, and by the sparks from the Eagle Mill, also fired by the explosion, facilitated by the direction of the windj the Alabama warehouse was burned. This court held that the explosion was the proximate cause of the loss of the Alabama ware- house, because the fire extended at once from the Marshall warehouse, where the explosion occurred. The court said that no new or intervening cause occurred betiSreen the explosion and the burn- ing of the Alabama warehouse. That if a new force or power had intervened, sufficient of itself to stand as the cause of the misfortune, the other must be consid- ered as too remote. This case went to the verge of the sound doctrine in holding the explosion to be the proximate cause of the loss of the Alabama warehouse ; but it rested on the ground that no other proxi- mate cause was found. In the case of Mil- waukee, &c. R. Co. </. Kellogg, 94 U. S. 469, the sparks from a steam ferry- boat of the company had set fire to an elevator, and the sparks from the elevator had set fire to Kellogg's sawmill and lum- ber-yard, which were from three to four hundred feet from the elevator. The court below was requested to charge the jury that the sparks from the steamboat, as a cause of the fire of the mill and lum- ber, were too remote. Instead of this the court submitted to the jury to find ' whether the burning of the mill and lumber was the result naturally and reasonably to be expected from, the burning of the elevator ; whether it was a result which under the SBC. 319 a.] CONTEIBUTOBY NEGLIGENCE. 1447 as to whether any act 'is a proximate cause is not that the injury- would not have occurred without such act, but was the act the effi- cient moving cause, and were there no intervening causes ? ^ Sec. 319 a. Contributory Negligence. — Negligence on the part of the plaintiff, commonly denominated contributory negligence, is, when it proximately contributes to the infliction of the injury, a bar , to an action by him, because a person cannot be permitted to ru^h upon an apparent danger, and then, when he is injured, be allowed to saddle the other party with the pecuniary consequences of an injury which his own want of care has brought upon him.'^ But the 527. In this last case the company de- layed forty-one days in transporting live- stock (hogs), and while they were waiting at the stoclt-yards, were killed by a snow- storm of unusual severity. In Deming v. Merchants' Cotton, &c. Co., 90 Tenn. 306, it appeared that a train loaded with cotton was delayed in a compress yard, about half an hour later than the usual time for leav- ing. Just as it was about to pull out a breakage oc6urred in the coupling, and before it could be repaired the cotton took fire from the compress. It was held' that the 'breakage of the coupling following the failure to depart on time, was the proxi- mate cause of the loss, and that the com- press company was therefore not liable. } " In order to make the defendant liable, his negligence must be the causa ecmaans, and not merely a causa sine qua non." Kelly, C. B. in Lord Baliff's, &c. V. Trinity House, 39 L. J. Exoh. 163. See also Sanders on Neg., p. 7, § 2 ; Milwau- kee, &c. E. Co. </. Kellogg, 94 1^. S. 475 ; Wharton on Neg., § 3. Note the elements of the definition of proximate cause given supra, and in Shear. & Red. on Neg. (2d ed.), § 26. A train wrongfttUy obstructed a street crossing. Animals were thus pre- vented from crossing, and while tiliey stood waiting on another track, a second train came along and injured them. It was held that the obstruction of the highway was not the proximate cause of the injury. Brown V. "Wabash, &c. E. Co., 20 Mo. App. 222. 8 Baltimore, &o. E. Co. i>. Whitacre, 35 Ohio St. 627 ; Cleveland, &o. R. Co, v. Elliott, 28 Ohio St. 340 ; Cleveland, &c. E. Co. I'. Terry, 8 Ohio St. 570 ; Hearne V. Southern Pacific E. Co. , 50 Gal. 482 ; Fleming v. Western Pacific R. Co., 49 Cal. 253 ; Needham v. San FrancLsco, &c. E. Co., 37 Cal. 419 ; Murphy »• Deane, 10} Mass. 455; Toledo, &c. E. Co. ». Goddard, 25 Ind. 185 ; Bellefoutaine E. Co. v. Hun- ter, 33 Ind. 335 ; Fowler «. Baltimore, &c. E. Co., 18 W. Va. 579 ; Wabash, &c. E. Co. V. Thompson, 10 lU. App. 271 ; Jeff- rey V. Keokuk, &c. E. Co., 56 Iowa, 546 ; Louisville, &c, E. Co. v. Burke,' 6 Coldw. (Tenn.) 45 ; Nashville, &c. E. Co. v. Car- rol, 6 Heisk. (Tenn.) 347; Colegrove v. New York, &c. E. Co. , 20 N. Y. 492 ; 6 Duer (N. Y.), 382 ; Beeves v. Delaware, &c. E. Co.,' 30 Penn. St. 454 ; Owen ». Hudson Rivei' E. Co., 35 N. Y..516; 2 Bosw. (N. Y.) 374 ; McKeon v. Citizens' E. Co., 43 Mo. 405. Under t-bis rule, in ease of the injury by a backing train of a person on a hand-car on the track, though the jury were instructed that if the in- jured party was guilty of negligence, which contributed to the accident, the defendant was not liable, yet it was error to add in connection that very slight negligence on the part of the injured party would not prevent a recovery. Catawissa R. Co. v. Aimstrong, 49 Penn. St. 186. Upon a hearing as to damages after a demurrer to a declaration charging an injury by the negligence of the defendant, the defendant may show, for the purpose of reducing the damages to a nominal sum, that the plain- tiff was guilty of negligence directly con- tribnting to the injury. Daily «. N. Y & New Haven R. Co., 32 Conn. 356. It is error to charge the jury that if the plain- tiff, by his own fault, has contributed to his injury, the defendant must then, show that he was without fault himself, and that no man can be shown without fault, unless he has done all in his power to 1448 NEGLIGENCE. [chap. XVIII. contributory negligence of the injured party in order to constitute a defence must have contributed as a proximate cmtse of the injury ; if it were a remote cause or a mere condition of injury, it is no bar to the plaintiff's actiou.i It is not a proximate cause when the avoid the iujuiy. Pendleton Street R. Co. V. Stallman, 22 Ohio St. 1. Upon the general proposition of the text see also Memphis, &o. R. Co. v. Copeland, 61 Ala. 376; Government St. R. Co. v. Hanlon, 53 Ala. 70 ; Beers v. Housatonio K. Co., 19 Conn. 566 ; Neal v. Gillett, 23 Conn. 566; Aurora Branch R. Co. ». Grimes, 13 111. 585 ; Evansville, i&o. R. Co. v. Lander- milk, 15 Ind. 120 ; Evansville, &c. R. Co. v. Hiatt, 17 Ind. 102; Lang v. Halliday Creek R. Co., 42 Iowa, 677 ; Wright v. Illinois, &c. T., Co., 20 Iowa, 195; Murphy v. Chicago, &c. R.i Co., 38 Iowa, 539; O'Keefe v. Chicago, &o. R. Co., 32 Iowa, 467 ; Canlin v. Chicago, &o. R. Co., 37 Iowa, 316; Knight ». Pontchartrain R. Co. 23 La. An. 462 ; Klein v. Crescent City R. Co., 23 La. An. 729 ; State v. Grand Trunk R. Co., 58 Me. 176; State v. Balti- more, &c. E. Co., 24 Md. 84 ; Freeh v. Philadelphia, &o. R. Co., 39 Md. 574 ; Bannon v. Baltimore, &c. R. Co., 24 Md. 119 ; Pittsburgh, &c. v. Andrews, 39 Md. 329 ; State v. Philadelphia, &c. R. Co., 47 Md. 76 ; Kelly v. Hendrie, 26 Mich. 255 ; Lake Shore, &c. E. Co. v. Miller, 25 Mich. 274 ; Le Barron v. Joslin, 41 Mich. 313 ; Harlan v. St. liouis, &c. R. Co., 65 Mo. 22 ; Memphis, &c. R. Co. v. Whitfield, 44 Miss. 466; Grippen v. N. Y. Central E. Co., 40 N. Y. 34 ; Moore -u. Central E, Co., 24 N. J. L. 268 ; Runyon V. Central R. Co., 25 N.J. L. 556; Manly V. Wilmington, &a. R. Co., 74 N. C. 655; Pittsburgh, &c. R. Co. v. Krichbaum, 24 Ohio St. 119 ; Conlin v. Charleston, 15 Rich. (S. C.) 201 ; Baltimore, &c. R. Co. V. Whittington, 30 Gratt. (Va.) 805 ; Baltimore, &c. R. Co. v. Sherman, 30 Gratt. (Va.) 602 ; Richmond, &c. R. Co. V. Anderson, 31 Gratt. (Va.) 812. "The reason why the law does not hold the de- fendant responsible for an injury where the plaintiff has by his negligence or wrongful act contributed to the result complained of, is, not that the wrong of the plaintiff justifies or excuses the defendant, but be- cause it is impossible to apportion damages between the parties ; and wherever this impossibility does not exist, the defend- ant's exemption from liability does not exist." Needham v. San Francisco, &c. K. Co.,* 37 CaL 409. 1 Meyer v. People's R. Co., 43 Mo. 523; Needham v. San Francisco, &o. R. Co., 37 Cal. 409 ; McQuitken o. Central Pacific R. Co., 64 Cal. 163 ; 16 Am. & Eng. R. Cas. 353 ; Meeks v. Southern Pacific E. Co., 56 Cal. 513 ; Meyers v. Chicago, &c. R. Co., 59 Mo. 223 ; Fowler v. Baltimore, &c. R. Co., 18 W. Va. 579 ; 8 Am. & Eng. R. Cas. 482 ; Trow v. Vermont Central R. Co., 24 Vt. 487 ; 58 Am. Deo. 191 ; Marcott v. Marquette, &o. E. Co., 47 Mich. 1; 49 Mich. 99; 4 Am. & Eng. R. Cas. 548, 551j Thirteenth St., &c R. Co. v. Boadrou, 92 Penn. St. 475. " Thus where one driving along a street is injured through a defect which the city should have repaired, the fact that he was driving at a greater rate of speed than the city ordinances allowed cannot be set up as a bar to the action when it in no way contributed to cause the injury. Baker v. Portland, 58 Me. 199 ; 4 Am. Rep. 274. The negligence which disables the plaintiflf from recover- ing must be negligence which directly or by natural consequence condxices to the injury. The question of negligence in a particular case is one of fact for the jury. Richmond V. Sacramento Valley R. Co., 18 Cal. 351 ; Central R. Co. v. Moore, 24 N. J. E. 824. Where there is mutual negKgence, and the negligence of both the company and the owner of the cattle was the proximate cause of the injury, no action can be sus- tained. And where the negligence of the plaintiff is proximate, and that of the defendant is remote, no action can be sus- tained. But where the negligence of the defendant is proximate, and that of the plaintiff is remote, the defendant will be held liable if the injury could have been prevented by the exercise of reasonable care. Stucke v. Milwaukee, &o. R, Co., 9 Wis. 202 ; Indianapolis, &o. R. Co. v. Caldwell, 9 Ind. 397. Any negligence. ^EC. 319 «.] CONTEIBUTOBY NEGLIGENCE. 1449 Diligence of the defeudant is an efficient intervening cause. That is, when the negligence of the defendant is subsequent to and inde- pendent of the carelessness of the person injured, and ordinary care on the part of defendant would have discovered the negligence of the injured party in time to have avoided its effects,, and prevented the injury, there is no contributory negligence because the fault of the injured party was remote in the chain of causation.^ In such a pase the want of care on the part of the injured party becomes a mere remote cause or a condition of injury.^ And not only must the causal connection between the act of the party injured and the injury be shown, but it must also appear that bis conduct was neg- ligent, that is, that the injured party was guilty of a want of ordinary care, — that his conduct was not -what that of an ordinarily prudenit and careful man would have been under the same circumstances,^ Therefore, if the injury was not the ordinary or probable result of plaintiff's conduct, but was due to some wholly unloosed for and however slight, on the part of the injured person, ifproximaU, or contributing to the injury, *ould prevent a recovery in an action therefor. Potter v. Chicago, &c. R. Co., 21 Wis. 372. Where the injury cpmplaioed of by the plaintiff is the result of his own negligence ov fault, or of the negligence or fault of both parties, without intentional wrong on the part of the de- fendant, no action can be maintained. Williams ». Michigan Central R. Co., 2 Mich. 259 ; Memphis, &o. R. Co, v. Whitfield, 44 Miss. 466, ^ Moris.sey v. Wiggins' Ferry Co., 47 Mo. 521; Viokburg, &o. R. Co. ». Patton, Z\ Miss. 156 ; 66 Am. Dec. 552 ; Rich- mond, &c. R. Co. I). Anderson, 31 Gratt. (Va.) 812; 31 Am. Rep. 754; Kerwhaeker V. Cleveland, &o. R. Co., 3 Ohio St. 172 ; 62 Am. Dec. 768; Pacific R. Co. v. Hants, 12 Kan. 328 ; Whaleo v. St. Louis, &e. R. Co., 60 Mo. 323; Brown v. Hannibal, &c. R. Co., 50 Mo. 461 ; 11 Am. Rep. 420 ; Button a. Hudson River R. Co., 18 N. Y. 248, 258 ; Manly v. Wilmington, &c. R. ■Co., 74 N. C. 655. Therefore wJiere the negligence of the injured party is seen by the employis of the railway company in time to prevent injury from sudi negligence, their failvire to exercise care to prevent the injury will render their employer liable. Morris v. Chicago, &c. R. Co., 45 Iowa, 29; Harlan v. St. Louis, &e. R. Co., 65 VOL. 11.^-41 Mo, 22 ; Yarnall ». St. Louis, &c. R. Co,, 75 Mo. 575 ; Karle v. Kansas City, &c. R. R. Co., 55 Mo. 476; yttle Rook, &c. R.Cp. v. Parkhurst, 86 Ark. 371; Kansas Pacific R. Co. V, Cranmer, 4 Col. 524; Healey V. Dry Dock, &c. R. Co., 46 N, Y, S\ipep- ior Ct. 473 ; Cook v. Central R. & B. Co., 67 Ala. 533 ; Bunting ». Central Pac. R. Co., 16 Nev. 277; Chicago, &c. R. Co. v. Johnson, 103 111. 512 ; post, § 320. Con- tributory negligence of plalntiflF is no bar to his action when it appears that defend- ant might, by the exercise of ordinary care, have prevented the injury in spite of such negligence. Island Coasting Co. v. Tolson, 139 U. §, 651, affirming $ Matkey (D. C), 39; Carrico «. West Virginia, &c. R. Co., 35 W. Va. 389; 14 S.E. Rep. 12. 2 Tuir». Waimau, 2C. B. n, s. 740; 5 G. B. JH. s. 578 (a leading case on this sub- ject); Murphy o. Dean, 1 01 Mass. 455 ; 3 Am. Bep. 390 ; Pollock on Torts, pp.375, 376. » Thompson v. Flint, &o. R. Co., 57 Mich. 300 ; 23 Am. & Eng. E. Cas. 295 ; Creaner ».| Portland, 36 Wis. 92; Kennard V. Burton, 25 Me. 39 ; 43 Am. Dec. 253 ; Strong V. Sacramento, &c. R. Co., 61 Cal. 326 ; 8 Am. & Eng. R. Cas. 275; Illinois, &c. R. Co. V. Hall, 72 111. 222; Gothard v. Alabama, &c. B. Co., 67 Ala. U4; 12 Am. Bep. 69 ; New York, &o. R. Co. v. Atlan- tic Refining Co., 129 N. Y. 597; 29 N, E. 1450 NEGLIGENCE. [CHAP. XVIII, unexpected event which could not reasonably have leen anticipated or regarded as likely to occur, such conduct is not negligent, and can- not be set up as a bar to the action. Thus, if the customer of a banker, who is desired to keep his check-book locked up, neverthe- less negligently leaves it on his table, and thus enables his servant to get possession of it, and tear out a check and > forge his' master's signature to it, and commit a fraud upon the bankers, this will not enable the bankers to throw the loss upon their customer, as being the result of his negligent keeping of his check-book, for it could not reasonably have been anticipated that the power of obtaining a check would induce a servant to commit a forgery.^ In all, cases where negligence on the part of the plaintiff is con- nected with the cause of injury, the question to be determined is whether the defendant, by the exercise of ordinary care and skill, might have avoided the injury. If he could have done so, the neg- ligence of the plaintiff cannot be set up as an answer to the action.^ Thus, where the plaintiff negligently left his donkey in a public highway, tied together by the forefeet, and the defendant carelessly drove over and killed the ass with his horses and wagon, in broad daylight, the animal being unable to get out of the way of the wagon, it was held that the misconduct of the plaintiff in leaving the ass in the highway was no answer to the action, for although the ass might have been wrongfully there, still the defendant was bound to go .along the road with care, and at such a pace as would be likely to prevent mischief. " Were this not so, a man might justify the driv- ing over goods left in a public highway, or even over a man lying asleep there, or the purposely running ' against a carriage going on the wrong side of the road." ^ Contributory negligence on the part 1 Bank of Ireland v. Trustees of Evans's ferry was thrown down and injured by the Charity, 6 H. L. C. 411 ; Taylor v. Gt. shook of the striking of the boat against Ind. JPenins., 28 Law J. Ch. 285, 714 ; the bridge. He was standing near the Donaldson w. Gillbtt, L. R. 3 Eq. Cas. 274 ; chain. It was held that, as ordinarily one Johnston v. Eeuton, L. R. 9 Eq; Oas. 181 ; could so stand without danger, the ques- Be United Service Co., L. R. 6 Ch. App. tion of contributory negligence was for the 212. jury. Gannon v: Union Eerry Co., 29 ^ Greenland!). Chaplin, 5 Exch. 248; Hun (N. Y.), 631. In a Pennsylvania Richmond, &c. R. Co. v. Anderson, 31 case a gas-pipe underground, near a sewer, Gratt. (Ta.) 812; Meyers v. Chicago, &o. had a defect in it, and thegas escaped into R. Co., 69 Mo. 223 ; Chicago, &c. R. Co. the sewer. The city engineer, in charge of V. Becker, 76 111. 25 ; Tanner v. Louisville, the sewer, knowing that there was a leak- &c. R. Co., 60 Ala. 621. age, entered the sewer with a lightedlamp, Davies v. Mann, 10 M. & W. 549 ; when an explosion took place, and he was Mayor of Colchester B. Brooke, 7 Q. B. 376. injured, and brought suit against the gas A passenger on a Brooklyn and New York company. It was held that the gas com- SEC. 319 a.] CONTEIBUTOKY NEGLIGENCE. 1451 of the plaintiff, therefore, will not bar his right to recover, unless it was such that but for that negligence the misfortune could not have happened; nor if the defendant might, by the exercise of hare on his part, have avoided the consequences of the neglect or carelessness of the plaintiff} The rule may be said to be well established that a person cannot recover for an injury resulting from the mere negligence of pany's negligence was the proximate, and not the remote cause of the injury, but that the plaintiff was guilty of contributory negligence. Oil City Gas Co. v. Robinson, 99 Penn. St. 1. The mere fact that a traveller knew a turnpike to be dangerous, was held not necessarily to make him ■ chargeable with contributory negligence in travelling over it. Henry County Turn- pike Co. V, Jackson, 86 Ind. Ill; 44 Am, Rep. 274 ; Toledo, &c. R. Co. v. Brauna- gin, 75 Ind. 490. Where the plaintiff, a farmer, fastened defendant's stallion with an ordinary halter in the same part of a barn with a mare and gelding belonging to the plaintiff, which were similarly fastened, with no barrier between them, and the stallion broke loose and injured the gelding, it was held that the plaintiff was guilty of contributory negligence. Milne v. Walker, 59 Iowa, 186. An in- struction that "if the plaintiff knowingly allowed his horse to be upon and to fre- quent the depot and station grounds of the defendant, where it was not required to fence, and where there was danger of the horse being struck by the trains of the de- fendant, he is guilty of contributory negli- gence, and cannot recover in this action," — that is, for- double damages, under Iowa Code, § 1 289, — was held properly refused. Miller v. Chicago, &c. R. Co., 59 Iowa, 707. In a case before the United States Circuit Court the plaintiff arrived at mid- njght by a trainwt a depot. The exit from the depot-grounds lay across the main track of the railroad. The plaintiff entered a hotel wagon ; the driver undertook to cross the track while a train was approach- ing ; the plaintiff jumped from the wagon and was injured. It was held that the questions of negligence and contributory negligence were for the jury, but that, as matter of law, the railroad company could not escape liability because of the negli- gence of the driver of the team, nor because the plaintiff, frightened, jumped. Haff v. Minneapolis, &c. R. Co., 14 Fed. Rep. 558. A workman, employed in removing ballast from a vessel, found, on attempting to leave the vessel to go to dinner, that the ladder ordinarily in place on the vessel's side had been removed. He went aft, and n,sed a ladder temporarily placed there, and which was insecurely fastened, and which fell, so that he was injured. The missing ladder had been removed by his . fellow-workmen, and placed in the hold for their use there. The workmen had been notified not to use the ladder aft. It was held, in a libel against the vessel, that the injured man was jiegligent, *nd that his negligence contributed tq his in- jury. The Privateer, 14 Fed. Eep. 872. In an action for personal injuries occa- sioned to a woman sixty-seven years old, by being knocked down 'by a horse and wagon while crossing a street on some Bag- stones at a point where the street forms a junction with two other streets, all much travelled, in the compact part of a city, the fact that, before attempting to cross, and while crossing, she did not look up or down the street, but straight ahead, is not conclusive evidence of a want of due care, but thp question is rightly submitted to the jury. Shapleigh v. Wyman, 134 Mass. 118. In an action against a city to recover damages for a fall caused by ice upon a sidewalk, it appeared that the plaintiff saw the ice three days before and avoided it ; but he testified that, when he fell, the side- walk was crowded, and he did not see the ice. It was held that the question of con- tributory negligence was for the jury. Thomas v. New York, 28 Hun (N. Y.), 110. 1 Tuff V. Warman, 5 C. B. N. s. 585 T Scott ». Dublin & Wicklow Ry. Co., 11 Irish C. L. 396 ; Addison on Torts (Wood's ed.) 41. 1452 NEGLIGENCE. [CHAP. XVIII. another, if he directly contributed to the injury by his own want of care;^ but the negligence of the plaintiff, in order to ex- cuse the negligence of the defendant, must have been such that, except for his "co-operating fault," the injury would not have happened to him.* The fact that he was negligent, and in fault, is not enough ; his fault must have immediately contributed to the injury, or have been the proximate cause thereof. If the, in- jury would have happened if his want of care had not contributed thereto, the person whose negligence immediately inflicted it will be liable therefor.^ The contributory negligence of the party injured is no defence to an action to recover damages for personal injuries, when it is shown that they were inflicted wilfully or intentionally, or so recklessly that wilfulness is conclusively presumed ; a party inflicting a wilful injury is responsible for all the consequences flowing from it, whether they be proximate or not.* But in order to avoid the defence of contributory negligence, it is not n^cessaiy, it is said, that the wrong- ful act of the defendant, or its agents and servants, should be wanton ahd intentional. ^ It cannot be kid down as a rule of law that a less degree of care is required of a woman than of a man ; and an instruction to that 1 Fewhouse v. Miller, 35 Ind. 463 ; v. Graham, 95 Ind. 263 ; 12 Am. & Eng. Central R. Co. v. Moore, 24 N. J. L. 824 ; E. Gas. 77 ; Pennsylvania Co. v. Sinclaii*, Beers v. Housatonic R. Co., 19 Conn. 62 Ind. 301 ; 30 Am. Rep. 158. Where 566 ; Eunyon v. Central E, Co., 25 N. J. a case is submitted to the jury upon a L. 556 ; HeU v. Glanding, 42 Penn. St. count which charges " wanton and wil- 493 ; West v. Martin, 31 Mo. 375 ; Win- ful " negligence or injury, it is proper to ship ». Enfield, 42 N. H. 147 ; Noyes i>. refuse to instruct the jury on the question Morristown, 1 Vt. 353 ; Lindsey v. Dan- of contributory negligence, since if the ville, 45 Vt. 72 ; Stitis v. Gusey, 71 Penn. count be sustained contributory negligence St. 439. I , would be no defence. Lake Shore, &c. 2 Wilds V. Hudson River R. Co., 24 N. B. Co. v. Bodemer, 139 111. 596 ; 29 N. Y. 430 ; Callahan v. Warne, 40 Mo. 131 ; E. Rep. 692, affirming 32 111. App. Williams v. Mich. Central E. Co., 2 Mich. 479. 259. There may be oases, however, in which ' Lindsey v. Danville, 45 Vt. 72 ; New- the injured party by his own act invited house V. Miller, 35 Ind. 463 ; Brown t>. the injury, and in such a case he cannot Elliott,' 45 How. Pr. (N. Y.) 182 ; Beiseigel recover unless he can show that defend- V. N. Y. Central R. Co., 14 Abb. Pr. (N. ant's act was wrongful, notwithstanding Y.) 42 ; Walsh v. Mississippi, &c. Co., 52 his own misconduct. See New Orleans, Mo. 434; Sutton v. Wauwatosa, 29 Wis. &c. R. Co. v. Jopes, 142 U. S. 18 (passen- 21 ; Sleeper v. Sandown, 52 N. H. 244. ger shot by conductor) ; ante, § 315, last * Cook V. Central E. & B. Co., 67 paragraph. Ala. 533 ; Louisville Safety Vault, &o. ' Tanner v. Louisville, &c. R. Co., 60 Co. V. Louisville, &c. R. Co. (Ky.), 17 S. Ala. 621. W. Rep. 567 ; Terre Haute, &c. R. Co., 8E0. 319 «.} CONTEIBUTOKY NEGLIGENCE. 1463 effect is erroneous.^ The sex of the injured party may be considered, however, in determining his or her actual capacity for self-protection. ligence made not only all proper allow- ances on account of her immature years, but further allowance on account of sex. No doubt the difference in sejc has much to do with the application of legal prin- ciples in many cases. Police regulations with the litmost propriety sometimes make distinctions between men and women, in the conduct required of them under the same circumstances, and the unwritten law is in some particulars more indulgent to the one sex than the other. Words and conduct which in the presence of men might be condemned for bad taste only, in the presence of women may be pun- ishable as criminal indecency, and a crime of violence committed upon the one would be condemned less severely by public opinion, and punished less severely by the law, than the same crime committed upon the other. And no doubt also the law ought, under all circumstances where they become important, to make allow- ances for any differences existing by nature between men and women, Sind also for any that grow out of their different occupa- tions, modes of life, education, and ex- perience. A woman, for example, driving a horse on a highway may be presumed somewhat wanting in the 'amount of knowledge, skill, dexterity, steadiness of nerve, or coolness of judgment, ■— in short, the same degree of competency ' which we may presume in a man; and the person meeting her under circumstances threaten- ing collision should govern his own con- duct with some regard to her probable deficiencies. Daniels v. Clegg, 28 Mich. 33, 42. In Snow v. Provincetown, 120 Mass. 580, a question of contributory ' negligence was made against a young woman who, in attempting to pass a cart in a public way, which had commenced backjng towards her, accidentally fell over an embankment and was injured. The fol- lowing instruction by the trial judge, to indicate the degree of care required of the plaintiff, wa.s held unexceptionable : ' Care implies attention and caution ; and ordin- ary care is such a degree of attention and caution as a person of ordinary prudence, of the plaintiff's sex and age, would com- er V. Michigan Central B. Co., 48 Mich. 205 ; 42 Am. Rep. 470 ; 6 Am. & £ng. B. Cas. 590. But iu a case where the wrong-doer was a woman, an instruction which charged that shp was bound to observe the care of a woman of common and ordinary prudence, was con- sidered not erroneous. Bloomington v. Per- due, 99 111. 829. In the first of these cases (48 Mich. 205), Coolet, J., said : " The decedent was killed at the crossing of the railroad*with one of the principal streets in the village. She was a girl thirteen years of age, and was proceeding along the street with a smalli pail of milk in her hands. The morning was somewhat cold and stormy. As she approached the rail- road track a train was passing in one di- rection, and its bell was being I'ung. From the other direction an engine was backing up several cars, and its bell was also being rung. It was by this train that the girl was struck and killed. There was a flagman at the crossing »nd no negli- gence seemed attributable to him. The brakeman on the backing train was upon the ground, walking along by its side to guard against accidents, but did not notice the girl until she had been thrown to the ground and killed. No one saw the girl when she was struck; and the place where she was lying when first seen was outside the limits of the street. With a single exception we think no error was committed to the prejudice of the Jiarty now com- plaining. The exception is found in the instrnotions to the jury respecting the de- gree of care required of the decedent to avoid the danger to which she fell a victim. It was contended for the plain- tiff below that the law did not require the same degree of care of a child as of an adult person, and the court so instructed the jury. This was unquestionably cor- rect. Railway Co. ». Bohn, 27 Mich. 503) But it was also insisted that the law did not expect or require the same de- gree of care and prudence in a woman as in a man ; and the court gave this instruc- tion also. It is presumable therefore that the jury in considering whether the deced- ent was chargeable with contributory neg- 1454 NEGLIGENCE. [CH4P. XVIII. Ordinary care, such as the law recLuires on the part of every one in ijrotecting himself is the care which a man of ordinary prudence monly and might reasonably be expected to exercise under like circumstances. ' This no doubt is true. But while the authori- ties permit all the circumstances to be taken into the account, age and sex among the rest, in determining the degree of care to be reasonably required or looked for, no case, so far as we know, has ever laid it down as a rule of law that less care i? required of a woman than of a man. Sex is certainly no excuse for negligence, — Fox V. Glastonbury, 29 Conn. 204, — and if we judge of ordinary care by the standard of what is commonly looked for and ex- pected, we should probably agree that a woman would be likely to be more pru- dent, careful, and particular in many positions and in the performance of many duties than a man would. She wonlcj, for example, be more vigilant and indefatig- ^able in her care of a helpless child ; she •would be more cautious to avoid unknown dangers ; she would be more particular to keep within the limits 6f absolute safety when the dangers which threatened were such as only great strength and courage 'could venture to encounter. Of a given number of persons travelling by cars, several men will expose themselves to danger by jumping from the cars when they are in motion, or by standing upon the platform, where one woman would do the same; and a man driving a team would be more likely to cross in front of an advancing train than a woman would. In many such cases a woman's natural timidity and inexperience with 'dangers in- clines her to be more cautious ; and if we naturally and reasonably look for greater caution in the woman than in the man, any rule of law that demands less must be unphilosophical and unreasonable. Sup- pose, for instance, that a man and a woman standing together upon the platform of a moving car are accidentally thrown off and injured, could any rule of law be justified which would permit a jury to award dam- ages to her but not to him, upon the ground that the law expected and required of him the higher degree of care ? Or may the woman venture upon an unsafe bridge from which the man recoils, under the protection of such a discrimination ? or trust herself to a fractions horse, ex- pecting, if she shall chance to be injured, ihe tenderness of the law will excuse her with a verdict of such care as was reason- ably to be expected, when it would pro- nounce a man foolhardy ? We think not. No person of any age or sex is chargeable with legal fault, who, when placed, in a position of peril, does the best that can be done under the circumstances. Voak v. Northern Central R. Co., 75 N. Y. 320. Even this statement indicates a more rigid rule than the law will justify, for the legal requirement is only the obser- vance of ordinary care ; and while in lay- ing down rules that are of general appli- cation, it is no doubt better to employ general terms, lest they be supposed ap- plicable to particular classes only, — Tuckr er V. Henniker, 41 N. H. 317, —yet when the actor is ' a woman, an instruc tion that she is bound to observe the conduct of a woman of common and ordinary prudence cannot be held legally erroneous because of being thus special. Bloomington tf. Perdue, 99 111. 329. Women may enter upon and follow any of the occupations of life ; they may be surgeons if they will, but they cannot as such claim any privilege of exemption from the care and caution required of men. A woman may be engineer of a locomotive if she can obtain the employment, but the law will expect and require of her the same diligence to avoid mischief to others which men must observe. The rvile of pnident regard for the rights of others knows nothing of sex. Neither can sex excuse any one for the want of ordinary care when exposing one's self to known and obvious perils. If it was apparent that the error of the judge did not mis- lead in this case, we might affirm the judgment. But that fact is not apparent. No one witnessed this accident ; the ques- tion of due care is involved in doubts, and the erroneous ruling may have been controlling. It foUotvs that there must be a new trial." SEC. 319 CONTKIBtTTOEY NEGLIGENCE. 1455 and sagacity would have exercised UTider the same circumstances and conditions ; he is not required to take all the precautions which a retrospective view of the circumstances would suggest as prudent. Therefore where on,e, in the face of great danger, and obliged to ohoose between two hazards, makes such choice as a person of ordi- nary prudence and care placed in the same situation might make, and is thereby injured, the fact that if he had bhosen the other hazard he would have escaped injury will not relieve the one by reason of whose negligence he was put in jeopardy.^ The doctrine of contributory negligence, as applied to,the liability of railroad companies for their own negligence, is that the party rely- ing on the contributory negligence of his adversary as a defence must not only prove such negligence, but show also that it was the proximate cause of the-injury, and that his own act,'if wrongful, was a mere remote cause. In other words, in order to prevent a recovery^ the plaintiff's negligence must proximately contribute to the irywry. If the sole immediate cause of the injury was the defendant's negligence, (he- plaintiff can recover, notwithstanding previous negligence' of his own. Where the negligence of the defendant is proximate, and that of the plaintiff remote, the action will be sustained, though the plain- tiff is not entirely without fault.^ While a railroad company is bound to manage its road and machinery with the utmost care and vigilance, the freedom from negligence which is required of a plaintiff involves only that ordinary prudence and, attention which sensible men are accustomed to give in similar cases.^ In Georgia, under the Code, — providing for the apportionment of damage^ in actions against railroad' companies for personal injuries resulting from negli- gence on the part of such companies, — the rule is that if the plaintiiBT, by the exercise of ordinary care, would have avoided the consequences 1 Karr v. Parks, 40 Cal.- 188 ; Haff «. " Mississippi, &c. E. Co. v. Mason, 51 MinneapoU.s, &c. R. Co., 14 Fed. Eep. Miss. 234; Kline u. Central Pacific R.. Co., 558; Schultz v. Chicago, &c. K. Co., 44 37 Cal. 400; Needham v. San Francisco, "Wis. 638 ; Mark v. St. Paul, &c. R. Co.,, &c. R. Co., 37 Cal. 409; Johnsorii). Canal, 51 Mich. 236 ; 47 Am. Rep. ,^66 ; 12 Am. &c. E. Co., 27 La. An. 53'; Meyer i>. Peo- & Eng. E. Cas. -86 ; Moore v. Central E. pie's E. Co., 43 Mo. 523 ; Kennayde v. Co., 47 Iowa, 688. Thus, where one Pacific E. Co., 45 Mo. 255 ; Manly v. Wil- jumps from a rapidly moving train in mington, &c. R. Co., 74 N. C. 655 ; Cleve- order to avoid an imminent danger threat- land, &c. R. Co. v. Elliott, 28 Ohjo St. ened hy collision, he cannot be said to be 340. necessarily guilty of contributory negli- ' Cook v. New York, &c. R. Co., 1 gence. Ante,-^ 305; Southwestern R. Co. App. Abb. Dec. 432. But see Lake Shore, V. Paulk, 24 Ga. 356 ; Wilson v. Northern &c. R. Co. v. Miller, 25 Mich. 274. Pac. E. Co., 26 Minn. 278. 1456 ' NEGLIGENCE. [CHAP. XVIII. to himself of the defendant's negligence, he cannot recover at all ; but in cases where, by ordinary care, he could not have avoided the consequences of the defendant's negligence, the circumstance that the plaintiff may have, in some way, contributed to the injury sus- tained, will not entirely relieve the defendant, but that the damages must be apportioned according to the amount of default attributable to each.^ The fact that a person is afflicted with an infirmity, like blindness or deafness, does not relieve him from the duty to exercise ordinary care to protect himself, but rather imposes upon him the duty to use gi'eater care than one possessed of all his senses. His infirmity is his misfortune, and he cannot plead it in extenuation of his negli- gent conduct.^ Kailroad companies cannot be charged with a knowledge of such infirmities, but are entitled to presume that all persons are in possession of the ordinary faculties of mind and body.3 But after they have become aware of such defects, or had notice of them, a duty arises on their part to exercise care accord- ingly* "While, therefore, blindness or deafness or similar infirmities do not necessarily make one guilty of contributory negligence, yet if it appears that, coupled with the exposure in which the party has placed himself, they are a proximate cause of the injury, 1 Macon, &c. R. Co. ». Johnson, 38 faculties so as to compensate as far as pos- Ga. 409. sible for the lacking one. 1 Thompson on " Penneman II. Holdeman, 75 Ind. 1; Neg., p. 430." Purl v. St. Louis, &c. E. 22 Atl. Eep. 1049 (deaf person must keep Co., 72 Mo. 168, 172. See also Maloy •/. a more careful lookout for passing vehicles Wabash, &o. B. Co., 84 Mo. 270 (deaf than if his hearing were good) ; Cleveland, person negligent in being on a railroad &c. R. Co. V. Terry, 8 Ohio St. 570; track). Furl V. ,9t. Louis, &o. R. Co., 72 Mo. 168 ' Frazer ». South, &o. R. Co., 81 Ala. (deafperson crossing railway track) ; Winn 185; 28 Am. & Eng. R. Cas. 565 ; Louis- V. City of Lowell, 1 Allen (Mass.), 177* ville, &o. E. Co. v. Black, 89 Ala. 313 ; (" common prudence requires of a person 45 Am. & Eng. E. Cas. 38 ; Kennedy ■». of poor sight greater care in walking the Denver, &o. E. Co., 10 Col. 493 ; 34 Am. streets to avoid obstructions than is re- & Eng. R. Cas. 40 ; Nichols v. Louisville, quired of persons of perfect sight ") ; Sim- &c. R. Co. (Ky.), 6 S. W. Eep. 339; 34 merman v. Hannibal, &c. R. Co., 71 Mo. Am. & Eng. R. Cas. 37 ; Louisville, &c. 476 ; Elkins i>. Boston, &o. R. Co., 115 R. Co. v. Cooper (Ky. 1882), 6 Am. & Mass. 190. See also City of Franklin v. Eng. R. Cas. 5 ; Lake Shore, &c. R. Harter, 127 Ind. 446 (blind person falling Co. v. Miller, 25 Mich. 279; Intern.i- into cellarway on sidewalk). " The case tional, &c. R. Co. v. Smith, 62 Tex. 252 ; is not altered, nor does it become more 19 Am. & Eng. E. Cas. 21 ; Artusy v. favorable tor the plaintiff, by reason of his Missouri Pacific E. Co., 73 Tex. 191 ; 37 deafness. Such an aflBiction, so far from Am. & Eng. E. Cas. 288. excusing one who might have seen the * City of Champaigne v. White, 38 IE train, should rather add a spur to his vigi- App. 233. lance and prompt him to employ his other eSO. 319 fl5.] CONTBIBUTOET NEGLIGENCE. 1457 they GOnstitute such negligence as will bar any recovery for the injury.i The fact that the person injured was at the time intoxicated does not necessarily constitute contributory negligence on his part,^ though this fact is to be considered with others in determining whether or not he exercised ordinary care to protect himself.* One cannot vol- ■ untarily incapacitate himself from ability to exercise ordinary care for his own self-protection, and then set up' such incapacity as an excuse for his failure to use care ; and if the intoxication contributed to the injury as a proximate cause thereof, it is a complete bar to any, action for damages sustained in consequence of it.* The rule, therefore, is that the same care is required of a person when he is intoxicated as when he is sober,^ though if the defendant is aware of his part which directly contributed to the accident. Buddenberg v. Charles Transp. Co., 108 Mo. 394; 18 S. W. Kep. 970. See also Wallace v. St. Louis, &c. E. Co., 74 Mo. 549 ; Meyer v. Pacific R. Co., 40 Mo. 161. * Illinois Central E. Co. v. Cragin, 71 111. 177 ; McClelland v. Louisville, &c. R. Co., 94 Ind. 276 ; 18 Am. & Eng, R. Cas. 260 ; Little Eock, &o. R. Co. v. Park- hurst, 86 Ark. 371 > 5 Am. & Eng. R. Cas. 535 ; McGuire v. Middlesex R, Co.^ 115 Mass. 239 ; Fitzgerald v. Weston, 52 \Vis. 354-, Chicago, &o. R. Co. v. Bell, 70 111. 102. In the first of these cases (71 111. 177), the court went on to say: "A person who voluntarjly uses intoxicating drinks until he has become helpless, or his l)0wers so far impaired that he is unable to exert the necessary effort to avoid danger, is guilty of negligence when he puts him- self in a position of danger ; and so when he stupefies and deadens his intellectual powers, so that he is unable to foresee and guard against danger." See ante, § 318 a. ' In Lower v. Sedalia, 77 Mo. 431, the court said : "It was the duty of the plaintiff to use every care and precaution to avoid falling from said' bridge that a sober man of ordinary prudence would have used under the same circumstances ; and if he failed to use such care and pre- caution, and such failure directly con- tributed to causing his injuries, he cannot recover." See also Chicago City R. Co. ». Lewis, 5 Bradw. (111. App. ) 242 ; Kean ». Baltimore, &o. R. Co.," 61 Md. 154; 19 Am. &Eng. R. Cas. 321. V. Wabash, &c. R. Co., 84 Mo. 270; O'Mara v. Hudson River R. Co., 38 if. Y. 445 ; Harris v. Uebelhoer, 75 N. Y. 169 ; Sluper v. Sandown, '52 Vt. 251 ; Morris, &c. R. Co. v. Haslan, 33 N. J. L. 147; Central, &o. R. Co. v. Fellar, 84Penn. St. 226; Shapley v. Wyman, 134 Mass. 118. 2 Alger !>. Lowell, 3 Allen (Mass.), 406; Houston, &c. E. Go. v. Reason, 61 Tex. 613; Lower v. Sedalia, 77 Mo. 413 ; Salina I'. Trosper, 27 Kan. 545; Ditchett v. Spuy ten Duyvil, &c. E. do., 5 Hun (N. Y.), 165 ; Thorpe v. Brookfield, 36 Conn. 320 ; 2 Shear. & Bed. on Neg., § 487. ' Buddenberg v. Charles Transp. Co., 108 Mo. 394 ; Yarnell v. St. Louis, &c. B. Co., 75 Mo. 575 ; 10 Am. & Eng. R.,Cas. 726 ; Baltimore, &c. E. Co. v. Boteler, 38 Md. 568 ; Marquette, &c. R. Co. v. Hand- ford, 39 Mich. 537 ; Southwestern R. Co. ». Haukerson, 61 Ga. 114 ; O'Keefe ». Chicago, &o. E. Co., 32 Iowa, 467 ; 4 Am. & Eng. Ency. Law, p. 79 ; 1 Shear. & Eed. on Neg. ('4th ed.), § 110,' n. ;' Beach on Contrib. N'eg. (Ist ed.), § 66. In a suit to recover for the death of a person caused by defendant's negligence, there being evidence tliat deceased was intoxicated at the time, it is error to charge the jury that although deceased was under the influence of liqtioi', yet his intoxication Was no defence, unless he was so intoxi- cated as to be unable to exercise ordinary care. And this en-or is not cured by a further instruction that there can be no recovery if the intoxication of the deceased resulted in the want of reasonable care on 1458 NEGLIGENCE. [chap. XVIII. his state before the injury occurs, it is bound to exercise greater care to avoid inflicting an injury upon him.^ What is negligence in a given case is necessarily a mixed question of law and fact. When there is no dispute about the facts, nor any doubt as to the proper inference to be drawn from them, the question as to what is proper care may be a question of law ;^ but where either the facts or the conclusions to be drawn therefrom are at all doubtful, the question must always be submitted to the jury. And because in determining the character of plaintiff's conduct it is necessary to find whether, or not he acted as a man of ordinary prudence would have acted under the same circumstances, the question is necessaj-ily one for the jury, except in very plain cases where there is no room for a reasonable difference of opinion.^ If the facts are such that a ^ See the rule very clearly stated in, Isbell V. New York, &c. E. Co., 27 Conn. 393 ; 71 Am. Dec. 78. The rule of the text is also upheld in St. Louis, &e. E, Co. V. WUkinson, 46 Ark. 513 ; Kean v. Baltimore, &c. E. Co., 61 Md. 154 ; 19 Am. & Eng. K. pas. 321 ; Dinwiddle v. Louisville, &o. E. Co., 9 Lea (Tenn.), 309, 311-312 ; Houston, &c. E. Co. v. Simp- kins, 54 Tex. 6l5; 6 Am. & Eng. R. Cas. 11. 2 Aspey v.- Detroit, &c. E. Co., 83 Mich. 440 ; 47 N. W. Eep. 513^ Merrill V. North Yarmouth, 78 Me. 200 ; 57 Am. ftep. 794; Todd v. Old Colony, &c. K. Co., 3 Allen (Mass.), 18; 80 Ara. Dec. 49; Emery v. Raleigh, &c. E. Co., 109 N. C. 589; 14 S. E. Rep. 352 ; Larmore v. Crown Point Iron Co., 101 N. Y. 391 ; 54 Am. Eep. 718 ; Schofield v. Chicago, &g. R. Co., 114 U. S.' 615 ; 19 Am. & Eng. E. Cas. 353. " Ordinarily the question of negligence is one of mixed law and fact, and it is the duty of the court to suhmit the same to the jury, with proper instruc- tions as to the law. What is proper care is some times a question of law, when there is no controversy about the facts ; but wliere there is evidence tending to _prove negligence on the part of the defendant^ and a question arises whether the plaintiff has, by his own fault, contributed to the injury, it is ordinarily a question for the jury." Filer v. N. Y. Central E. Co., 49 ' N. Y. 50. See also Fernandes v. Sacra- mento City R. Co., 52 Oal. 45 ; Delaware, &c. R. Co. V. Tbffey, 38 N. J. L. 525 ; Bonnell v. Delaware, &c. E. Co., 39'N. J. L. 189 ; Penn. E. Co. Bj Eighter, 42 N. J. L. 180. ' Harmon v. Washington, &c. R. Co., 7 Mackey (D. C), 275 ; Central E. Co. v. Hubbard, ' 86 Ga. 623 ; Hendriken v. Meadows, 154 Mass. 599 ; Eichel v. Sen- henn, 2 Ind. App. 208 ; -Conplly v. Wal- tham, 156 Mass. 368 ; W^liams v. Mich. Central R. Co., 2 Mich. 259 ; ' Memphis, &c. R. Co. V. Whitiield, 44. Miss. 466 ^ Ramsey v. Rushville, &c. Road Co., 81 Ind. 394 ; Thomas v. New York, &c. R. Co., 28 Hun (N. Y.), 110 ; Gannon v. Union Ferry Co., 29 Hun (N. Y.), 631 ; Haff V. Minneapolis, &c. R. Co., 14 Fed. Rep. 558 ; North Pennsylvania: R. Co. v. Heileman, 49 Penn. St. 60; s. c. 1 Thomp- son on Neg., p. 401 ; Montgomery v. Wright, 72 Ala. 411 ; 47 Am. Rep. 422 ; Marietta, &o. R. Co. v. Picksley, 24 Ohio St. 654 ; McNarra v. Chicago, &o. R. Co., 41 Wis. 69 ; McHugh v. Chicago, &c. R. Co., 41 Wis. 76 ; Penn R. Co. v. Fortney, 90 Penn. St. 323 ; Kansas Pacific E. Co. V. Ward, 4 Col. 30 ; Corcoran v. New York Elevated R. Co., 19 Hun (N. Y.), 368 ; Nehrbas ®. Central Pacific E. Co., 62 Cal. 320. It is not enough merely that the facts are undisputed. "When the question arises upon a state of facts on which reasonable men may fairly arrive at different concKjsions, the fact of negli- gence cannot be determined until one or other of these conclusions has been drawn by the jury. The inferences to be drawn from the evidence must either be certain SEC. 320.] INJURIES TO TRESPASSERS ON TRACK, ETC. 1459 verdict for the plaintiff could not be sxxstained, the question is one of law, and should be determined by the court.^ ' The doctrine of contributory -negligence is affected in some juris- dictions by the adoption of what is known as the rule of comparative negligence, by which the negligence of the parties is compared in the degrees of slight, ordinary, and gross, and a recovery allowed if the defendant's negligence is gross and that of the injured party slight.^ But this rule is confined to the courts of Illinois,^ though modifica- tions of it seem to have been adopted in one or two other States.* Sec. 320. injuries to Trespassers on Track, etc. : Children. — A railway company owes no duty to a trespasser upon its track or premises other than that which every person owes to another, and that is to refrain from inflicting upon , him a wilful or malicious injury.^ " Kegligence," qbserves the New York court, " is a violation and incontrovertible, or they cannot be decided by the (Jourt. Negligence cannot he conclusively established by a state of facts upon which fair-ipinded men may well-differ." Coolet, J., in Detroit, &c. R. Co. V. Van Steinburgy 17 Mich. 99. See also Hathaway v. East Tennessee E. Co.,- 29 Fed. Rep. 489. 1 FUer V. N. Y. Central R. Co.,, 49 N. Y. 47 ; Baltimore, &c. R. Co. v. State, 30 Md. 366; Rudolphy v. Fuchs, 44 How. Pr. (N. y.) 155 ; Barton v. St. Louis, &c. E. Co., 52 Mo. 253 ; Dickens v. N. Y. Central R. Co., 1 Abb. App Cas. (N. Y.) 504 ; Bernhard v. , Rensselaer, &c. R. Co., 1 Abb. App. Cas. (N. Y.) 131; Cook v. N. Y. Central R. Co., 1 id. 432 ; Jetho v. N. Y. & Harlem R. 'Co,, 2 Abb. App. Cas. (N. Y.) 458 ; Kay v. Pennsylvania R. Co., 65 Penn. St. 269 ; Marks ■!>. St. Paul, &c. R. Co., 32 Minn. 208. 2 See the doctrine discussed post, § 322 b ; 3 Am. & Eng. Enoy. Law, pp. 367 et seq. ; Chicago, &c. R. Co. v. Gretzuer, 46 111. 74. 8 Illinois, &C.R. Co. ». Wren, 43 111. 77; Chicago, &c. B. Co. ». 'Sweeney, 52 111. 325 ; Toledo, &o. E. Co. v. McGinnis, 71 111. 346 ; Illinois, &c. R. Co. v. Hammer, 72 111. 347 ; Grand Tower Mfg. Co. V. Hawkins, 72 111. 386. * See Kansas Pacific E. Co. v. Pointer, 14, Kan. 37; Illinois Central R. Co. v. Dick (Ky.), 15 S. W. Rep. 665. See also the Tennessee and the Georgia rule as set out post, § 322 h ; Jackson v. Nashville, &c. R. Co., 13 Lea (Tenn.), 491 ; 49 Am. Rep. 663 ; Georgia E. Co. v. Pittman, 73 Ga. 325 ; 26 Am. & Eng. E. Cas. 476. ^ Savannah, &c. E. Co. v. Meadows (Ala.), 10 So. Eep.'l41 ; Glass v. Mem- phis, &c. E. Co., 94 Ala. 581 ; Central R. Co. V. Brinson, 70 Ga. 207; 19 Am. & Eng. E. Cas. 42 ; Terre Haute, &c. E. Co. V. Graham, 95 Ind. 286 ; 12 Am. & Eng. E. Cas. 77; PalrticrK. Chicago, &c.E. Co.,- 112 Ind. 250 ; 31 Am. &. Eng. E. Cas. 264 ; Louisville, &c. E. Co. v.' Howard, 82 Ky. 212 ; 19 Am. & Eng. E. Cas. 98 ; Wright V. Boston, &c. E. Co., 142 Mass. 296 ; 28 Am. & Eng. E. Cas. 652 ; John- son V. Boston, &c. E. Co., 125 Mass. 75 ; Baltimore, &o. R. Co. v. State, 62 Md. 479 ; 19 Am. & Eng. R. Cas. 83 ; Henry ». St. Louis, &c. E. Co., 76 Mo. 288; 12 Am. & Eng. E. Cas. 136 ; DahUtrom v. St. Louis, &C..E. Co., 96 Mo. 99 ; 35 Am. & Eng.R. Cas. 387 ; Cauley ®. Pittsburgh, &c. B: Co., 95 Penn. St. 398 ; 40 Am. Eep. 664; 2 Am. & Eng. R. Cas. 4; Carter v. Columbia, &c. R. Co., 19 S. C. 20 ; 15 Am. & Eng. R. Cas. 414 ; East Tennessee, &c. E. Co. v. Humphreys, 12 Lea (Tenn.) 200 ; 15 Am. & Eng. E. Cas. 472 ; East Ten^iessee, &c. E. Co. v. Faiuj 12 Lea (Tenn.), 35 ; 19 Am. & Eng. R. Cas. 102 ; Houston, &c. R. Co. v. Simp- kins, 54 Tex. 615 ; 6 Am. & Eng. R. Cas. 11; Norfolk, &c. R. Co. v. Carper (Va.), 14 S. E. Kep. 328 ; Tyler v. Sites (Va.), 1460 NEGLIGENCE. [CHAP. XVIII. of the obligation which enjoins oare and caution in what we do. But this duty is relative, and where it has no existence between paiv ticular parties there can be no such thing as negligence in the legal sense of the term. A man is under no obligation to be cautious and circumspect towards a wrong-doer! A horse, straying in a field, falls into a pit left open and unguarded ; the owner of the animal cannot complain, for, as to all trespassers, the owner of the field had a right to leave the pit as he pleased, and they cannot impute negligence to him. But injuries inflicted by design are not thus to be excused. A wrong-doer is not necessarily an outlaw, biit may justly complain of wanton and malicious mischief.^ But if a person can be easily seen lying upon the track, in season to stop the train, the company is not warranted in running him down simply because he has no business there, but is bound to use due care to stop the train, and prevent the injury if possible.^ The duty 13 S. E. Rep. 978 ; Tyler v. Kelley (Va.), 15 S. E. Rep. 609 ; Spioer v. Chesapeake, &G. R. Co., 34 "W. Va. 514 ; 45 Am. & Eng. R. Gas. 28. The injury must be wilful, and proof of mere "recklessness," " gross negligence," or "wantonness," so- called, will not suffice, though the negli- gence of the engineer may be so culpa- ble that the law will presume wilfulness. Chicagi, &o. R. Co. v. Hedges, 105 Ind. 398 ; 25 Am. & Eng. K. Cas. 550 ; Terre Haute, &o. R. Co. v. Graham, 95 Ind. 286 ; 12 Am. & Eng. R. Cas. 82; post, pp. 1467, 1468, n. See also in support of the view of the text, Kansas Pacific R. Co. v. Ward, 4 Col. 30 ; Little Schuylkill Nav. &o. Co^ v. Norton, 24 Penn. St. 465 ; Pittsburgh, &n. R. Co. V. Collins, 87 Penn. St. 405 ; Philadelphia, &c. R. Co. v. Hummell, 44 Penn. St. 375 ; Mulherrin v. Delaware, &c. R. Co., 81 Penn. St. 365 ; Rothe v. Milwaukee, &c. R. Co., 21 Wis. 256; Illinois, &c. R. Co. v. Hall, 72 111. 222 ; Illinois, &c. R. Co. o. Hetherington, 83 III. 510 ; Robertson v. N. Y., &c. R. Co., 22 Barb. (N. Y.) 191 ; Johnson v. Boston, &o. R. Co., 125 Mass. 75 ; McKenna v. N. Y. Central R. Co., 8 Daly (N. Y.), 804 ; VanSchaicku. Hudson River R. Co., 43 N. Y. 527 ; Cogswell v. Oregon, &C.R. Co., 6 Oreg. 417 ; Lang v. Halliday Creek R. Co., 42 Iowa, 677 ; Osterlog v. Pacific R. Co., 64 Mo. 421; O'Donnell v. Mo. Pacific R. Co., 7 Mo. App. 190 ; Deville V. Southern Pacific R. Co., 50 Cal. 383 ; Burns v. Boston, &c. R. Co., 101 Mass. 50. As a genekl legal proposition, where both parties are equally guilty of negli- gence, the plaintiff cannot recover dam- ages sustained by the negligence of the defendant. Mason v. Missouri Pacific R. Co., 27 Kan. 83 ; 41 Am. Rep. 405. 1 Bbakdslby, C. J., in Tonawanda R. Co. V. Munger, 6 Denio (N. Y.), 266, 277. ^ Mulherrin v. Delaware, &o. R. Co., 81 Penn. St. 366 ; Houston, &o. R. Co. v. Smith, 52 Tex. 178 ; Chicago, &c. R. Co. V. Kellarn, 92 111. 245 ; 34 Am. Rep. 128 ; Kansas, &c. R. Co. v. Fitzeimmons, 22 Kan. 686 ; 31 Am. Rep. 203 ; McCarty v. Delaware, &o. R. Co., 17 Hun (N. Y.), 74 ; Gillis v. Penn. R. Co., 59 Penn. St. 129 ; Bounds v. Delaware, &c. R. Co., 64 N. Y. 129; Evansville, &c. R. Co. v. Lowdermilk, 15 Ind. 120 ; Penn. R. Co. V. Sinclair, 62 Ind. 301 ; Lafayette, &c. R. Co. 1). Adams, 26 Ind. 76 ; Evansville, &c. R. Co. V, Hiatt, 17 lud. 120 ; Lovett 1). Salem, &c. R. Co.', 9 Allen (Mass.), 557. In Houston, &o. R. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep, 632, it was held that one who without authority enters upon a railway track, and while there becomes insensible from providential causes, and while in this state and in plain view is injured by a train, may re- cover damages of the company, although the injury was not wanton or wilful ; but SUV. 320.] INJURIES TO TEESPASSBRS ON TRACK, ETC. 1461 of the company in such cases exists when the trespasser is first dis- covered and the engineer becomes aware that he is ignorant of the approaching danger ; ^ and if after becoming aware of the trespasser's presence the engineer fails to exert every effort possible to prevent the injury, the company must be held liable.^ So also in cases where otherwise if his insensibility was in con- sequence of his Toluntary intoxication. In Baltimore, &c. R. Co. v. State, 33 Md. 542, the court laid down the rule as follows : " If a man does imprudently and incautiously go on a railroad track, and is killed or injured by a train of cars, the company is responsible. Unless it has used reasonable care and caution to avert it, ' provided the circumstances were not such when the party went on the track as to threaten direct injury, and provided that being on the track he did nothing, posi- tive or negative, to contribute to the im- mediate injitry." In Weymire v. Wolfe, 62 Iowa, 533, the court said: "If a per- son lies down upon a railroad track in a state of helpless intoirfcation, the company will not be justified in running a "train over him, if it can be avoided in the exer- cise of reasonable care after the person is discovered in hia exposed condition." In Little Bock, &c. R. Co. v. Parkhurst, 86 Ark. 371, the decedent, walking on the defendant's track while drunk, was run over. The court charged that al- though he was in fault in being on the track, yet if the defendant's agents could by the exercise of reasonable diligence have seen him in time to avoid the acci- dent, "the failure to use such diligence alone must be considered the proximate cause of the accident." This was reversed, the 6ourt observing that although the de- fendant was negligent, in not having a light and lookout, "yet the deceased's own negligence in being voluntarily on the track, and from intoxication unable to get out of the way of the train, was the proxiraatecause of his death." In Laverenz V. Chicago, &B. R. Co., 56 Iowa, 689, it was said : " It is true that where a per- son voluntarily goes upon a railroad track where there is an unobstructed view oi the track, and fails, without excuse, to look or listen for danger, as matter of law he is not entitled to recover. He must take the chances of injury from an ap- proaching train upon himself, unless the persons in charge of the train see his danger in time to avert it." Carlin v. Chicago, &c. R. Co., 37 Iowa,> 316 ; Ben- ton V. Central R. Co., 42 Iowa, 192 ; Lang V. HoUiday Creek R., &c. Co., 49 Iowa, 469 ; Artz v. Chicago, &c. R. Co., 34 Iowa, 153. 1 Louisville, &c. B. Co. v. Black, 89 Ala. 313 ; 45 Am. & Eng. R. Cas. 38 ; Gunn V. Ohio River K. Co. (W. Va.), 14 S. E. Rep.: 465. ' ^ .Kansas Pae. R. Co. v. Whipple, 37 Kan. 539 ; 37 Am. & Eng. R. Cas. 320 ; Bergman v. St. Louis, i&c. R. Co., 88 Mo. 678 ; 28 Am. & Eng. R. Cas. 688 ; Synder «. Natchez, &c. B. Co., 42 La. An. 302 ; 44 Am. & Eng. R. Cas. 278 ; St. Louis, &c. R. Co. ». Monday, 49 Ark. 257 ; 31 Am. & Eng. R. Cas. 234 ; St. Louis, &c. R. Co. V. Freeman, 36 Ark. 41 ; Central R. Co. V. Brinson, 70 Ga. 207 ; 19 Am. & Eng. R. Cas. 42 ; McAllister v. Burlington, &e. R. Co., 64 Iowa, 395 ; 19 Am. & En^. R. Cas., 103 ; Burnett v. Burlington, &c. R. Co., 16 Neb. 332 ; 19 Am. & Eng. R. Cas. 25. In an action for the death of a ' child caused by the negligent operation of the train, it appeared that the track was strwght for neairly half a mile before reach- ing the place where the child was run over, and that had the train been runriiiig at the rate of speed prescrihed by the ordinance it could have been stopped within forty feet, but that at the rate at which it was actually running it required from one hun- dred to four hundred feet to stop it. It was held that the jury were authorized to find as a fact that the unlawful rate of speed was the proximate cause of the in- quiry. Tobin e. Missouri Pac. R. Go. (Mo.), 18 S. W. Rep. 996. In this case the child ■was playing on the track where it was crossed by a highway, and the court held that he was not a trespasser. In West Virginia, it is held that a child of four years, killed by a train while sitting on or near the track, cannot be held to have been 1462 NEGLIGENCE. [chap: XVIII. persons have long been aceustomed to use the track of the company for a passage-way at certain localities, the company is charged with notice of such usage and is under obligation to keep a careful look- out at such places, even though the parties thus using the track do_ so without authority and are really trespassers.! But where pedes- trians use the track as a thoroughfare in spite of posted- notices and other warnings forbidding it, they are trespassers and cannot claito a license by usage.^ But except at highway crossings the company's right to the use of its tracks and premises is exclusive, and it is entitled to assume th'at they are clear ; ^ it is not bound to anticipate that persons will vio- late its property rights and be on the tracks, and owes no duty to a trespasser so as to release the company from liability, where it appears that, hy the exercise of ordinary care, the company might have seen him and prevented the injury. Gunn ««■ Ohio Eiver B. Co. (W. Va.), 14 S. E. Eep. 465. Contra Woodruff V. Northern Pac. K. Co., 47 Fed. Rep. 689. 1 Illinois Central R. Co. >,. Dick (Ky.), 15 S. W. Kep. 665 ; Tomely v. Chicago, &c. R. Co., 53 Wis. 326 ; 4 Am. & Eng. E. Cas. 562 ; Whalen v. Chicago, &e. R. Co., 75 Wis. 654; 41 Am. & Eng. R. Cas. 558 ; Conley v. Cincinnati, &c. E. Co. (Ky.), 12, S. W. Eep. 764 ; 41 Am. & Eng. R. Cas. 537 ; Frick v. St. Louis, &c. E. Co., 5 Mo. App. 435 ; Palmer v. Chi- , cago, &o. E. Co., 112 Ind. 250 ; 31 Am. & Eng. R. Cas. 250 ; St. Louis, &c. E. Co. 0. Crosnre, 72 Tex. i79 ; 37 Am. & Eng. R. Cas. 313 ; Western E. Co. v. Meigs, 74 Ga. 857 ; Sutherland v. Wil- mington, &c. R. Co., 106 N. C. 101 ; Taylor v. Delaware, &c. R. Co., llSPenn. St. 162 ; 28 Am. Eng. R. Cas. 656 ; Byrne V. N. Y. Central R. Co., 1(^4 N. Y. 362 ; 58 Am. Eep. 512 ; 19 Am. & Eng. Ency. Law, p. 937. In an action against a rail- road company for alleged negligence, caus- ing the death of plaintiff's intestate, it appeared that the decedent was run over aud killed in attempting to^ cross defend- ant's tracks at a poiht where the owners of adjoining lauds had a right of way, and where the public for thirty years had been in the habit of crossing. Held, that the acciuiesoence of defendant for so long a time in th'is public use amounted to a license or permission to all persons to cross at this point, and imposed a duty upon it as to persons so crossing, to exercise rea- sonable care in the movement of its trains, so as to protect them from injury. Barry V. N. Y. Central E. Co., 92 N. Y- 289, distinguishing Hownsell v. Smyth, 97 E. C. L. 731 ; Nicholson v. Erie E. Co., 41 N. Y. 525 ; Sutton v. N. Y. Central R. Co., 66 N. Y. 243. ^ Hyde v- Missouri Pacific R. Co. (Mo), 19 S. W. Eep. 483 ; Meredith v. Rich- mond, c. R. Co., 108 N. C. 616. And one who uses a right of way across a rail- road by license is not relieved of the duty to exercise care. Richards v. Chicago, &e. R. Co., 81 Iowa, 426. 8 St. Louis &c. R. Co. 1). Monday, 49 Ark. 257; 31 Am. & Eng, R. Cas. 324; Mason v. Missouri Pac. R. Co., 27 Kan. 83; 1 6 Am. & Eng. R. Cas. 1; Isabel v. Hannibal, &c. E. Co., 60 Mo. 475 ; Yar- nell V. St. Louis, &o. R. Co., 75 Mo. 575; lO Am. & Eng. R. Cas. 726; Omaha, &c. R. Co. V. Martin, 14 Neb. 295; 19 Am. & Eng. R. Cas. 236; Jersey City, &o. R. Co. V. Jersey City R. Co., 20 N. J. Eq. 61; Cauley v. Pittsburgh, &c. E. Co., 95 Penn. St. 398; 2 Am. & Eng. E. Cas. 4; Mulherin v. Delaware, &c. B. Co., 82 Penn. St. 366, where it was said: "Ex- cept at crossings, where the public have a right of way, a man who stepS his foot upon a railroad track does so at his peril. The company has not only a right of way, but it is exclusive at all times and for all purposes." Eailroad Co. v. Norton, 24 Penn. St. 465. ^EC. 320.J INJtTKIES TOTRESPASSEKS ON TRACK, ETC. 1463 provide for the safety of sucli' trespassers.^ Therefore where an adult person appears on the track, the company has a right to pre- sume that he will heed the warnings of approaching danger and protect himself, and is not bound either to stop the train or to slacken its speed. The- presumption is that he can and will pro- tect himself.^ Nor is the company bound to keep a lookout ahead of its trains, except when they are about to cross a highway or private crossing ; ^ though . in some jurisdictions it has been held otherwise, and in still others the duty has been created by «tatute.f In a Connecticut case,^ the court laid down thfe rule applicable to insensible or unintelligent living objects upon a railway track. In that case the action was for running down and killing the plaintiff's cattle. The court said : " A remote fault in one party does not of crfurse dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided, or an unavoidable Calamity essentially mitigated. Common 1 Chrystal v. Troy, &e. E. Co., 105 N. 4 Am. & Eng. E. Cas. 580; Telfer v. Y. 164; '31 Am. & Eng. E. Cas. 411; T'erre Northern R. Co., 30 N. J. L. 188; Card v. Haute, &e. R. Co. v. Graham, 46 Ind. 239; New York, &c. K. Co., 50 Barb. {1S. Y.) .95 Ind. 286; 12 Am. & Eng. E. Cas. 77; 89; Herring v. 'Wilmington, &a. B. Co., Savannah, &e. Ejj, Co. v. Meadows (Ala.), 10 Ired. (N. C.) 402; Cogswell v. Ore- 10 So..Rep. 141; Hale v. Columbia, &c. gon, &c. E. Co., 6 Oreg. 417; Interna- B. Co., 34 S. C. 292. tional, &o. E. Co. v. Smith, 62 Tex. 352 ; 2 Louisville, &c. R. Co. v. Blacli, 89 19 Am. & Eng. E. Cas. 21; Bemis v. Con- Ala. 313; 45 Am. & Eng. R. Cas. 38; necticnt, &c. E. Co., 42 Vt. 575. Mobile &o.. R. Co. v. Blakely, 59 Ala. 471; ' Tei-re Haute, &c. R. Co. v. Graham, Tanner ». Louisville &c. R. Co., 60 Ala. 46 Ind. 239; 95 Ind. 286; McAllister v. 621; St. Louis, &c. E. Co. u. Monday, 49 Burlington, &o. R. Co., 64 Iowa, 395; 19 Ark. 257; 31 Am. & Eng. R. Cas. 424; Am. & Eng. R. Cas. 108; Mobile, &c. E. Needham v. San Fraijoisco, &o. R. Co., 37 Co.'». Stroud, 64 Miss.' 784; Yarnell v. St. Cal. 409; 'St. Louis &o. E. Co. v. Manley, Louis, &o. R. Co., 75 Mo. 575; -10 Am. & 58 111. 300; Chicago, &c. E. Co. v. Austin, Eng. R. Cas. 726; Canley v. Pittsburgh, 69 111. 426; Chicago, &c. R. Co. v. Lee, &c. R. Co., 95 Penn. St. 398; 2 Am. & 68 111. 576; Chicago &c. R. Co. v. Damsell, Eng. !fe. Cas. 4. See also Louisville, &c. 81 111. 450; Ohio, &c. R. Co. v. Walker. E. Co. v. Greene (Ky.),' 19 Am. &Eng. E. 113 Ind. 196; 32 Am. & Eng. E. Caa. 121; Cas. 95. Compare, however, Houston, &c. Indianapolis, &o. R. Co. v. McClaren, 62 R. Co. i>. Symkins, 54 Tex. 615; 6 Am. Ind. 566;'Terre Haute, &c. E.'Co. v. Gra- & Eng. R. Cas. 11; ham, 46 Ind. 239; 95 Ind. 286; 12 Am. < Such a statute exists in Tennessee. & Eug. E. Cas. 277; Nichols «. Louisville; Code of Tenn. (1884), § 1298; Louisville, &d. R. Co. (Ky.), 6 S. W. Eep. 339; 34 &c. R. Co. v. Robertson, 9 Heisk. (Tenn.) Am. & Eng. E. Cas. 37; Freeh v. Phila- 276; East Tjenneasee, &e. E. Co. v. White, delphia, &g. R. Co., 39 Md. 574; Lake 5 Lea (Tenn.), 540; 8 Am. & Eng. R. , Shore, &c. R. Co. v. Miller, 25 Mich. Cas. 65. 274; Mobile, &c. E. Co. v. Stroud, 64 « Isbell B. New York,'&o. R. Co., 27 Miss. 784; 31 Am. & Eng. R. Cas. 443; Conn. 393 ; 71 Am. Dec. 78. Bell V. Hannibal, &c. E. Co., 72 Mo. 50; 1464 NEeLIGENCB. [CHAP. XVm. Justice and common humanity demand, this, and it is no answer for the neglect of it to say that the complainant was first in the wrong; since intention and accidents are to a greater or less extent incident to human affairs. Preventive remedies must therefore always, be proportioned to the case in its peculiar circumstances, — to the im- minency of the danger, the evil to be avoided, and the means at hand of avoiding it. And herein is no novel or strange doctrine of the law ; it is as old as the moral law itself, and is laid down in the earliest books on jurisprudence. A boy enters a door-yard to find his ball or arrow, or to look at a flower in the garden ; he is bitten and lacerated by a vicious bull-dog ; still he is a trespasser, and if he had kept away would have received no hurt. Nevertheless, is not the owner of the dog liable ? A person is hunting in the woods of a stranger, 6r crossing a pasture of hLs neighbor, and is wounded by a concealed gun, or his dog is killed by some concealed instrument, or he is himself gored by an enraged bull ; is he in all these cases remediless because he is there without consent ? Or an intoxicated man is lying in the travelled part of the highway, helpless, if not unconscious ; must I not use care to avoid him ? May I say that he has no right to encumber the highway, and therefore carelessly ■continue my progress, regardless of consequences ? Or if such a man has taken refuge in a field of grass or a hedge of bushes, may the owner of a field, knowing the fact, continue to mow on, or fell trees, as if it was not so ? Or if the intoxicated man has entered a private lane or by-way, and will be run over if the owner does not stop his team which is passing through it, must he not stop them ?" The doctrine of this case has been approvingly cited by the courts, in several cases, and seems to us to define the true rule of duty and obligation resting upon railway companies as well as to persons lying upon their trades, and young children, as to, animals.^ The rule may be said to be that a railway company is bound to keep a reasonable lookout for trespassers upon its track, and is bound to exercise such care as the circumstances require to prevent injury to them. If the person seen upon the track is an adult person, and apparently in the possession of his or her facultiigs, the company has a right to presume that he will exercise his senses and remove him- self from his dangerous position ; and if he fails to do so, and is injured, the fault is his own, and there is, in the absence of wilful 1 hbell V. New York, &o. H. Co., 27 Meeks v. Southern PaciBc R. Co., 66 Dal. Conn. 393 ; 71 Am. Deo, 79. See also 518, 88 Am. Rep. «7. SEC. 320.] INJURIES TO TEESPASSBES ON TEACK, ETC. 1465 negligence on its part, no remedy against the company for the results of an injury brought; upon him by his own recklessness.'' In a Michigan case,^ the court said, " If an engineer sees a team and carriage, or a man in the act of crossing the track, far enough ahead of him to have ample time, in the ordinary course of such 1 Baltimore, &c, R, Co. v. State, 33 Md. 542; Lake Shore, &c. R. Co. w. Miller, 25 Mich. 279. Where a locomotive with cars, attached is standing on a raiirpad track near a railroad station, or other place where cars are frequently moved forward or back- ward, a person who goes upon the railroad track, seeing the locomotive and cars, and knowing that they would, within a few minutes, be moved towards him, and walks upon the track away from the train with- . out keeping watch of its movements, when there was nothing to hinder him from seeing the movements of the train in time to avoid danger, and when he could have gone in the same direction without walk- ing on the track, is guilty of such neglir gence as will prevent his recovery for an injury caused by the carelessness or un- skilfulness of the employes of the railroad, not amounting to wilfulness on their part. -A person so walking upon a railroad track is not free from negligence if he omits to keep watch of the movements of the train, relying upon a rule or custom of the em- ployes of the railroad, to give a 'signal for the moving of the train. The expecta- tion that such signal would be given does not relieve a person in .such situation from constant watchfulness for his safety. Bal- timore/ & Ohio E. Co. V. Dapew, 40 Ohio St. 121; Richmond, &c. R. Co. u. An- derson, SI Gratt. (Va.) 312. In this case BuKKB, J., said: " Negligence is the gist of the action. If the injury which resulted in the death of the plaintiff's intestate was occasioned by the negligence of the defendant, and solely by such negligence, there can be no doubt of the plaintiffs right to recover damages for the injury; but if there was negligence on the; part of the defendants, and also on the' part of the deceased, and the negligence of the latter contributed to the injury, the right of re- govefy depends upon the circumstances." Richmond, &c. R. Co. v. Morris, 31 Gratt. (Va.) 200; Northern Central R. Co. v. VOL. II. — 42 State, 17 Md. 8 j Baltimore & Ohio R. Co. V. State, 33 Md. 542 ; Brown v. Hannibal, &c. R. Co., 50 Mo. 461; 11 Am. Rep. 420; Central E. &/B. Co. v. Davis, 19 Ga. 437; ' Isbell V. New York, &c. R. Co., 25 Conn. 556; Macon, &c. R. Co. v. Davis, 18 Ga. 679 ; Herring v. Wilmington, &e. R. Co., lOlred. (N. C.) 402; Bait. & Ohio E. Co. V. Sherman, 30 Gratt. (Va.) 602; Balti- more, &c. R. Co. V. Whitington, 30 Gratt. (Va.) 805. See also, holding the doctrine stated in the text, Terre Haute, ' &c. R. Co. V. Graham, 46 Ind. 239; 95 Ind. 286; 48 Am. Rep. 719; Jeffersonville R. Co. v. Goldsmith, 47 Ind. 43; Tonawanda R. Co. ^. Munger, 5 Denio (N. Y.), 255. 2 Lake Shore, &c. R. Co. v. Miller, 25 Mich. 279. See as upholding the same views, Harris v. Whelhoer, 75 N. Y. 169; Freeh «. Philadelphia, &c. R. Co., 39 Md. 574; Cleveland, &c. R. Co. v. Terry, 8 Ohio St. 570 ; St. Louis, &c. R, Co. v. Manly, 58- 111. 300 ; Schierhold v. North Beach, &c. R. Co., 40 Cal. 447; Illinois Central R. Co. V. Hutchinson, 47 111. 408; Poole v. North Carolina R. Co., 8 Jones (TS. C), 340. But there is no presumption that a young child or a drunken person will heed the signals of danger, and the engineer is bound to stop the train if he sees that they make no attempt to leave the tr^ck. Kenyon v. N. Y. Central R. Co., 5 Hun (N. Y.), 479 ; Sheridan v. Brooklyn, &c. R.,Co., 36 N. Y. 39 ; Colt v. Sixth Ave. R. Co., 33 N. Y. Superior Ct. 189 ; Phil- adelphia, &c. R. Co. V. Speareif, 47 Penn. St. 300 ; Daniels v. Clegg, 28 Mich. 32 ; Robinson v. Cone, 22 Vt. 213 ; Chicago, &c. R. Co. V. Dewey, 26 111. 255. Infii-m persons, however, have no business to ex- pose themselves upon a railway track. Gonzales v. N. Y. Central R. Co., 38 N. Y. 440 ; Central R. Co. v. Filder, 84 Penn. St. 226 ; EvansvOle, &c. R. Co. v. Hiatt, 17 Ind. 102 ; Cogswell v. Oregon, &c. R. Co., 6 Oreg. 417. 1466 kEGLIGENCB. [CHAP. XVIII. movements, to get entirely out of the way before the approach of the engine ; or if he sees a man walking along upon the track at a con- siderable distance ahead, and is not aware that he is deaf or insane, or from some other cause insensible of the danger ; ^ or if he sees a team or man approaching a crossing too near the train to get over in time, he has a right to rely upon the laws of Nature and the ordinary course of things, and to presume that the man driving the team or walking upon the track has the use of his senses, and will act upon the principles of common-sense and the motive of self- preservation common to mankind in general, and that they will there- fore get out of the way, — that those on the track will get off, and 1 In the case of Michigan Central E. Co. V, Campeau, 35 Mich. 470, the plain- tiff was injured hy being struck by an engine while he was walking on the com- pany's right of way at a point where there were five parallel tracks, constructed near each other. Plaintiff stepped off one track to avoid an approaching engine, and was struck by another engine coming on one of the other tracks. This second en- gine might have easily been seen for some distance if plaintiff had looked. It ap- peared that this engine was being moved at a greater rate of speed than was allowed by law, and that the persons in charge of it acted recklessly in not giving any signals or keeping a lookout. The court held, however, that such facts would not render the defendant liable ; the plaintiff, in being on the track, was guilty of contribu- tory negligeiice, and had no right to re- cover except upon proof of wilful wrong on the part of defendant. See, as sustain- ing and applying this rule, Nave v. Ala- bama Gr. So. R. Co. (Ala.), 11 So. Eep. 391 ; Reardon v. Missouri Pao. R. Co. (Mo. ), 21 S. W. Rep. 731 ; Garteiser v. Galveston, &c. R. Co. (Tex. App.), 21 S. W. Rep. 631. In the case of Louis- ville, &c. B. Co. 1). Haivston (Ala.), 11 So. Hep. 300, the deceased was killed while walking between the tracks ; it ap- peared that at the time of the injury the train was moving at a rate of speed greatly in excess of that allowed by statute at such places. The court held, however, that deceased was a trespasser, and hi-i administrator had no right of recovery for his death in the absence of proof that the injury was wilful. See also Louisville, &c. R. Co. 0. Kellem .(Ky.), 21 S. W. Rep. 230 ; Gregory ». Southern Pac. R. Co. (Tex. Civ. App.), 21 S. "W. Rep. 417. In the case of Garteiser v Galveston, &c. :r. Co. (Tex. Civ. App.), 21 S. W. Rep. 631, the plaintiff was an employ^ of a contractor of the company, and with other employes was on his way to work riding; on a hand-car. While they were crossing a bridge, and were half the way over, an en- gine appearedat the end of thebridge com- ing towards them ; to avoid the collision, plaintiff with his companions jumped from the car, and was himself severely injured. The morning was foggy, and the engine On approaching the bridge came round a curve. There being a highway-crossing between this curve and the bridge, it was the statutory duty of the engineer to have sounded the whistle and bell, both of which signals were omitted. The court held that it was error to instruct the jury that the duty to give these signals was one owing only to persons crossing the track on the highway ; it was held also that plaintiff was not a trespasser, and was entitled to recover upon proof that he had exercised ordinary care to avoid the injury. The court went on to say : " All that the law required of the appellant on the occa- sion in question was the exercise of such care for his own safety as ordinarily pru- dent persons would have exercised under like circumstances, and the court could not legitimately tell the jury that such care was the ' highest degree of care.' " Citing Railway Co. v. Dyer, 76 Tex. 156 ; 13 S. W. Eep. 377; Railway Co. v. Garcia, 75 Tex. 583; 13 S. W. Rep. 223. Compare Artusy v. Railway Co., 73 Tex. 191 ; 11 S. W. Rep. 177 ; Brown v. Griffin, 71 Tex. 654 ; 9 S. "W. Rep. 546. SEC. 320.] INJ0BIES TO TRESPASSERS ON TRACK, ETC. 1467 those approacMng it will stop in time to avoid the danger ; and he therefore has the right to go on without checking his speed until he sees that the team or man is not likely to get out of the way, when it would beconle his duty to give extra alarm by hell or whistle, and if that is not heeded, then, as a last resort, to check his speed or stop his train, if possible in time to avoid disaster. If, however, he sees a child of tender years upon the track, or any person known to him to be, or from his appearanc^ giving him good reason to believe that he is, insane or badly intoxicated, or otherwise insensible of danger or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not, or 1 would not, and he should therefore take means to stop his train ip time. A more stringent rule than this, — a rule that would require the engineer to check his speed or stop his train whenever he sees a team crossing the track or a man walking on it, far enough, ahead to get out of the way in time, until he can send ahead to inquire why they do not ; or which would require the engineer to know the deaf- ness or blindness, or acuteness of hearing or sight, or habits of pru- dence or recklessness, or other personal peculiarities, of all those persons he may see approaphing, or upon the track, and more espe- cially of all those who maybe approaching a crossing upon the high- way, though not seen, — any such rule, if enforced, must effectually put an 'end to all railroads as a means of speedy travel or trans- portation, and reduce the speed of trains below that of canal-boats forty years ago; and would effectually defeat the object of the legislature in authorizing this mode of conveyance. But how are railroad coihpanies, or their engineers or employes, to know the personal peculiarities, the infirmities, personal character, or station in life, of the hundreds of persons crossing or approaching tlieir track? By inspiration, or intuition? And if they do not know, then how and why shall the company be required to run their road or regulate their own conduct, or that of their servants, by such personal peculiarities of strangers of which they know nothing ? These questions suggest their own answers." And this we believe, is. an accurate statement of the .duty of railway companies under the circumstances referred to. In an Indiana case,^ a charge to the jury, in an action to recover for an injury by a trfespasser on the track, that there could be no • Terre Haute, &o. E. R. Co. 11. Graham, fayette, &c. E. E. Co. v. HnfFman, 28 95 Ind. 286; i8 Am. Rep. 719. In Lai lud. 287, the court said: " The complaint 1468 NEGLIGENCE. [CHAP. XVHI. recovery "tmless it was wilfully, wantonly, and recklessly done," was held erroneous, inasmueii as it conveyed an idea that there is a middle ground of liability between ordinary negligence and wilfulness upon which there might be a recovery notwithstand- ing the plaintiffs negligence, when really in order to entitle the plaintiff to a recovery, the injury must have been "wilfully" inflicted.^ The same rule prevails as to persons trespassing upon railway bridges, and other parts of the road where they have no right to be, •and where the company has no reason to expect that persons will go.2 A person who enters upon the track or premises of a railway is fatally defective. After admitting facts which show negligence of the plaintiff, contributing to the injury, it charges that the defendant in a wanton and careless manner ran said locomotiTe, etc. The word 'wanton' does not mean wilful. It is defined by Webster as follows: ' Wan- dering or' roving in gayety or sport ; ' ' licentious, ' ' lewd, ' ' extravagant,' etc. The word adds no force to the charge that the act was doiie in a careless manner." See also Jeffersdnville, &c. R. Co, v, Bowen, 40 Ind. 545; 49 Ind. 154; Evans- ville, &o. R. Co. V. Wolf, 59 Ind. 89 ; Bellefontaine E. Go, v. Hunter, 33 Tnd. 335 ; Johnson v. Boston & Maine R. jCo., 125 Massi 75 ; Heil v. Glanding, 42 Penn. St. 493 ; Gillis v. Pennsylvania R. Co., 59 Penn. St. 129 ; Jeffersonville, &c. R. Co. V. Goldsmith, 47 Ind. 43 ; Illinois Central R. Co. v. Godfrey, 71 111. 500; Peoria Bridge Ass'n. v. Loomis, 20 111. 235. 1 See also Baltimore, &o. E. Co. v. Depew, 40 Ohio St. 121. In Johnson v. Boston & Maine R. Co., 125 Mass. 75, it was held that if a person Ijuys a ticket which entitles him to a passage over a rail- road from A. to C, and stops at B., in- tending to resume his journey to C. the same day, leaves the station 'at B., and afterward, while on his way to the station of another railroad corporation near by, for the purpose of meeting his son, returns to the station which he had left, and is injured while crossing the tracks through the negligence of the railroad corporation which had sold him the ticket, when he might have crossed the railroad at a high- way crossing, he is a trespasser, and can- not, in the absence of evidence that the negligence was wilful, maintain an action for the injury, although the defendant's platforms extend between two highways crossing the track, and people have been accustoRied to pass from the station on ons railroad to that on the other at that point without objection by thp corporation, and although his ticket does not forbid stop- ping over at B. In Nicholson ®. Erie E. R. Co., 41 N. Y. 525, the plaintiff's intestate y?as run over and killed by de- fendant's ears while he was crossing the track on their premises, not at a public crossing, but where persons had been accus- tomed to cross 'without objection. It was held that no action could be maintained. Gramlich v. Wurst, 86 Penn. St. 74 ; 27 Am. Rop. 684; McAlpin v. Powell, 70 N. Y. 126 ; 26 Am. Rep. 555; St. Louis, &c. R. R. Co. V. Bell, 81 111. 76; 25 Am. Rep. 269 ; Keefe u. Milwaukee & St. Paul R. R. Co., 21 Minn. 207; 18 Am. Eep. 393; Gray v. Scott, 66 Penn. St. 345; S Am. Rep. 371; Severy v. Nickerson, 120 Mass. 306; 21 Am. Eep. 514; Illinois Cen- tral R. R. Cp. V. Godfrey, 71 111. 500; 22 Am. Rep. 112 ; Nicholson v. Erie R. E. Co., 41 N. Y. 525. ^ In Mason v. Missouri Pacific R. R. Co., 27 Kan. 83, the plaintiff's Wife was injured by a car of the defendant while she was attempting to walk over a trestle- work or bridge crossing a creek ill a city. The bridge w&s built exclusively for the railroad, and had no railings nor foot- planks, and tvas thirty feet above the water ; aCd although at the point in qnea? SEO. 320.] mjUEIES TO TEESPASSERS ON- TRACK, ETC. 1469 by license is not a trespasser ; ^ but the company owes him no special duty because he has been permitted to be there, beyolid that which it owes to the public generally .^ The licensee has no reason to expect that the company will graduate the running of its trains to suit his purposes or conveniience, and- can only expect from it tiou the track ran through lands platted for a public street, yet the street had not heen graded nor improved, and the track was considerably elevated above the sur- face of the adjoining lajid. The court held that the exclusion of evidence to show a custom of foot-passengers to cross the bridge was not error, saying : "It cannot be well said that such trestle-work and bridge, as constructed, were either in law or in fact a public street. As there was no attempt to show that either the injured party or any other person was in- vited by the company to cross or travel upon the structure over the creek, or that the injured party was upon the structure with the consent of the company, the fact that other parties had crossed upon it did not make it less dangerous or less negli- gent for the wife of the plaintiff to attempt to do so. This -is not a case where the legal right of the railway company and that of the public to use sucli trestle-work are about equal. The embankment and trestle-work are so much elevated above the street, and are so erected for the pur- pose of operating theraon cars and engines only, as to apparently forbid foot-passen- gers crossing the creek at this place ; therefore we do not think that the rail- way company was bound to operate its cars with reference to foot-men undertak- ing the peril of attempting to step from tie to tie in crossing, th4 long span over the stream, especially in view of the fre- quent running of the cars on the track of such trestle-work. Counsel for plain- tiff contends that as the bridge lay wholly within two of the streets of the city of Wyahdotte, called Front street and Wa- Was street, which cross each other at the point where the bridge crosses the creek, and as a street belongs to the public, from the centre of the earth to the heavens above, persons had the right to climb up the embankment, and to use the trestle- work as a public street of the city. Not so. The embankment and trestle-work were the property of the railway company. They were used for the ■ purposes of the company in operating its cars and trains, and so built and construoted| as to render any travel thereon perilous, even without the operation of cars upon the track. . . . The railway company was in full occupa- tion of it, and the public had no right to cross over'such a dangerous structure, and knowing it to be uusafe for travel, tq claim exemption from all negligence on their part, and charge the railway^ com- pany with the fruits of their own imprU'> denee. . . . Whenever a party infringes upon the rights of others, this negligenge, or this wrong-doing, as the case may be, ah- solves others from using ordinary care and diligence toward such party. In brief, they are under no legal or moral obligation to be cautious and circumspect toward one who infringes upon their rights. Union Pacific R. R. Co. v. Kollins, 5 Kan. 167. A railway company has the exclusive right to occupy, use, and enjoy its railway tracks, bridges, and trestle-work, and such exclusive right is absolutely necessary to , enable such a company to properly perform its duties, and any person going upon, or using or occupying the track or bridge of a railway company without the consent of the company, is held in law to be there wrongfully, and therefore to be a tres- passer. . . . Therefore the instruction that the railway company was liable only for such negligence so gross as to amount to wantonness was a correct declaration of the law to the jury." See also Tennen- brock V. South Coast, &c. R. R. Co., 59 Cal. 269. 1 Harty v. X. Y. Central R. H. Co,, 42 ^. Y. 468; Patterson v. Philadelphia,. &c. R. R. Co., 4 Houst. (Del.) 103 ; Illinois, &e. R. R.Co. v. Hammer, 72 111. , 347. 2 Hounsell v. Smyth, 7 C. B. n. s. 731. 1470 NEGLIGENCE. [CHAP. xvm. such consideration and ordinary care as it owes to the general pub- lic and the licensee is bound to exercise the highest care to shieM himself from injury.^ Of course, this rule requires the company, where there is reason to apprehend that a person seen upon the track will not heed the signals of danger and take .himself out of the way of the train, to use reasonable diligence to stop the train and avert the serious conse- quences likely to ensue from failure to do so ; but this condition, as we have seen, does not apply, as a rule, except where it is observable that the person is not in possession of bis faculties,^ or is so young that it cannot be reasonably expected that he will avoid the threat- ened danger. No higher degree of care is required of young children than might be expected from those of their age, and it is generally held that contributory negligence is not imputable to them;^ and 1 Matz V. N. Y. Central R. Co., 1 Hun (N. Y.), 417; Nicholson v. Erie E. Co., 41 N. Y. 526 ; 111. Central R. Co. v. Godfrey, 71 111. 500 ; Aurora Branch K. Co. V. Grimes, 13 HI. 685 ; Shea v. Sixth Ave. R. Co., 62 N. Y. 180 ; Steele v. Cen- tral R. Co., 43 Iowa, 109 ; Baltimore, &c. R. Co. V. Boliler, 38 Md. 568 j Kay v. Penn. B. Co., 65 Penn. St. 269 ; Hieks v. Pacific R. Co., 64 Mo. 630 ; Penn. B. Co. V. Lewis, 79 Penn. St. 53 ; Bernhard v. Rensselaer, &c. B. Co., 1 Abb. Ct. App. Dec. (N. Y.) 131; Lygo v. Newbold, 9 Exnhq. 302 ; Tomely v. Chicago, &c. R. Co., 53 Wis. 326. 2 Ante, p. 1456, 1457. 5 In Birge v. Gardiner, 19 Conn. 607, the defendant having set up a gate on his own land, by the side of a Irfne, through which the plaintiff, a child between six and seven years of age, with other children in the same neighborhood, were accus- tomed to pass from their places of residence . to the highway, and vice veraqt, the plain- tiff, in passing along such lane, without the liberty of any one, put his hands on tlie gate and shook it, in consequence of which it fell on him and broke his leg ; in an action for this injury, the court in- structed the jury, that if the defendant was guilty of negligence, he was liable for the injury, unless the plaintiff, in doing what he did, was guilty of negligence, or misbehavior, or of the want of proper care and caution ; and in determining this question, they were to take into considera- tion the age and condition of the plaintiff, and whether his conduct was not the re- sult of childish instinct and thoughtless- ness ; after a verdict for the plaintiff, it was held that the charge was unexception- able. And the court also held that the fact of the plaintiff 's being a trespasser in the act which produced the injury com- plained of, will not necessarily preclude him from a recovery against a party guilty of negligence. Neal v. Gillett, 23 Conn. 487 ; Norwich, &c. B. R. Co., 26 id. 591 ; Bronson v. Southbury, 37 Conn. 199 ; Brown v. European, &c. R. E. Co., 58 Me. 384 ; Lynch v. Smith, 104 Mass. 62 ; Elkins v. Boston, &c. R. R. Co., 115 Mass. 190 ; Washington, &c. R. R. Co. V. Gladman, 15 Wall. (U. S.) 401 ; Sioux City, &o. R. R. Co. v. Stout, 17 id. 667 ; McMillan w. Burlington, &c. B. B. Co., 46 Iowa, 231. An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age. Byrne v. New York Central & Hudson River R. B. Co., 83 N. Y. 620 ; 14 Hun (N. Y.), 322 ; Rookford, Rock Island, & St. Louis R. B. Co. e. Delaney, 82 111. 198 ; Mobile & Montgomery R. R. Co. V. Crenshaw, 65 Ala. 566 ; Chicago & Alton R. R. Co. v. Lammert, 12 Brad. (111.) 408 ; Dowling v. New York Central R. R. Co., 90 N. Y. 670 ; Chicago & Alton R. R. Co. 0. Murray, 71 111. 601. Thus, SEC. 320.] INJURIES TO TRESPASSERS ON TRACK, ETC. 1471 that, when seen upon the track a sufficient length of time in which to stop the train, the company is bound to do so, or it will be charge- able with the consequences. But in this class of cases the question is for the jury whether the, company was guilty of negligence in view of the circumstances.^ The degree of care required of a child, de- it hi^s been held that an infant under six years of age is not of sufficient discretion to he guUty of contributory negligence. Bay Shore R. E. Co. ■». Harris, 67 Ala. 6. Generally, the question whether the capac- ity of a child is such that he can be charged with contributory negligence is one of fact, which must be determined by the jury. Moore v. Metropolitan R. R. Co., 2 Maokey (D. C), 437. But where a child is the plaintiff, whether the fault is that of the child or the negligence of the person haying the care of the child,' the doctrine of contributory negligence is by some of the cases held to apply. Hathaway v. Toledo, Wabash, & Western E. R. Co., 46 Ind. 25 ; Toledo, Wabash, & Western R. R. Co. v. Miller, 76 111. 278. See also Higgins v. Jeffersonville, &c. ,R. E., Co., S2 Ind. 110. But the better rule is that negligence cannot be imputed to a child not of sufficient capac- ity or disci*etion to understand the danger and guard against it. Pittsburgh, &c. R. R. Co. V. Caldwell, 74 Penn. St. 421 ; Pennsylvania Co. i). James, 81^ Penn. St. 194 ; Government St. E. R. Co. v. Han- Ion, 53 Ala. 70 ; Cleveland, &c. R. R. Co. V. Manson, 30 Ohio St. 451 ; Evansich v. G., C, & S. F. R. E. Co., 57 Tex. 126. A child two years and ten months old cannot be guilty of contributory negli- gence, Neither is it bound by the neg- lect of its parents. Nprfolk & Petersburg R. R. Co. v.. Ormsby, 27 Gratt. (Va.) 455. See also Government St. R. R. Co. , V. Hanlon, 53 Ala. 70 ; Casey v. N. Y. Central R. E. Co., 78 N. Y. 518 ; Q'Mara V. Hudson Eiver E. R. Co., 38 N. Y. 445 ; McGovem v. N. Y. Central R. R. Co., 67 N. Y. 417 ; Reynolds v. N. Y. Central B. E. Co., 58 N. Y. 248 ; Thur- ber V. Harlem, &o. R. E. Co., 60 N. Y. 326 ;. Haycraft v. Lake Shore, &c. E. R. Co., '64 N. Y. 638 ; Costello v. Syracuse, &c. R. E. Co., 65 Barb. (N. Y.) 92; Walter v. Chicago, &c. E. E. Co., 41 Iowa, 71 ; Daniels v. Clegg, 28 Mich. 32 ; Schmidt V. Milwaukee, &c. R. R. Co., 23 Wis. 186 J Boland v. Missouri R. R. Co., 36 Mo. 484 ; O'Flaherty v. Union E. R. ' Co., 45 Mo. 70 ; Donahue v. Vulcan Iron Wprks, 7 Mo. App. 447 ; Ranch v. Lloyd, 31 Penn. St. 358; Philadelphia, &c. R. E. Co. V. Hassard, 75 Penn. St. 367 ; Penn. R. R. Co. v. Kelly, 31 id. 372 ; Crissey v. Hestonville, &c. R. R. Co., 75 Penn. St. 83 ; Oakland E. E. Co. v. Fielding, 48 Penn. St. 320 ; Kay v. Penn. E. R. Co., 65 Penn. St. 269 ; Glassey'i;. Hestonville, &o. R. R. Co., 57 Penn. St. 172 ; Baltimore, &o. E. E. Co. n. State, 30 Md. 47 ; Baltimore City Pass. R. R. Co. V. McDonnell, 43 Md. 534 ; Chicago, &c. R. E. Co. V. Becker, 84 111. 483 ; Eockford, &c. E. E. Co. v. Delaney, 82 111, 198; Chicago, &c. R. R. Co. -o. Becker, 76 111. 25 ; Kerr v. Forque, 54 III 482. 1 In Frick v. St. Louis, &o. R. R. Co., 75 Mo. 595, a chUd two years old waS killed on a railroad, and it was held that the defendant was not entitled to an in- struction that it is liable only in case its servants failed to exercise ordinary care to prevent the injury after they became aware of the danger to which the plaintifif was exposed. The court said that the qualifieatiou in the last clause would be proper in the case of an adult, but not in case of a, child. See also, holding that there can be no recovery where negligence is not imputable to the company, as where the child' could not be seen in season to stop the train, Phila., &o. R. R. Co. v. Hummell, 44 Ponn. St. 375 ; Phila,, &c. R. R. Co. V. Long, 75 Penn. St. 257 ; Bulger V. Albany R.' R. Co., 42 N. Y. 459 ; Meyers v. Midland Pacific . E. E. Co., 2 Neb. 319 ; Citizens' St. R. R. Co. V. Carey, 56 Ind. 396 ; Penn. E. E. Co. V. 'Morgan, 82 Penn. St. 134 ; Heston- ville, &o. E. E. Co. V. Connell, 88 Penii. St. 520 ; Chicago, &o. R. Rf Co. v. Becker, 1472 NEGIilGENOB,' [CHAP. XVIII. pends upon its age and intelligence, and it is a question for the jury in each case whether the care exercised by it in a given case was 76 111. 25. In another Missouri case, in an action by a parent for an injury re- ceived by his son upon a, turn-table be- longing to a railroad, causing his death, it appeared that the son, aged six, was allowed to go to a circus in charge of his sister, aged eleven, and was left by the latter near the circusrground, neither she nor their mother knowing that there was a turn-table in the vicinity. It was held that the question of contributory negligence was properly left to the jury. A child playing with others upon an un- locked turn-table, which was under the control of a railroad and in a public local- ity, was injured by another of the children revolving it. Children had been accus- tomed to play on it, and had been injured to the knowledge of the company. It was held that the company was liablealthough not owning the turn-table. ' Nagel v. Mis- souri Pacific E. R. Co., 75 Mo. 653 ; 42 Am. E|p. 418. A boy ten years old attempted to board a train while it was in motion. The train was not a passenger tr&.in, and in no event would the boy have had a right to get on it. There was no negligence on the part of any of the train- hands. It was held that a verdict for the boy in his suit against the company for an iHjury thus sustained should be set aside. Chicago & Alton R. R. Co. v. Lammert, 12 111. ,App. 408. The company is not bound to keep guards stationed around its tracks, turn-tables, cars, &c., to keep children from getting injured upon them. Central Branch, &o. R. R. Co. v. Heuigh, 23 Kan. 347 ; Chicago, &c. K. R. Co. v. McLaughlin, 47 111. 265 ; Chicago, &c. E. B. Co. V. Stamps, 69 111. 409. That a boy six years old was upon a rail- road track ' near" a street-crossing does not establish the fact of contributory negligence, although it is shown that the boy's father saw him going toward the track a short time before he was struck by a train. Johnson v. Chi-' cago & Northwestern R. R. Co., 56 Wis. 274. The negligence of a parent or other person rightfully having charge or control of an infant non sui juris is imputable to the infant. Fitzgerald v. St. Paul, Min- neapolis, &e. R. E. Co., 29 Minn.' 336 ; 43 Am. Rep. 212. In Ex parte Stell, 4 Hughes (U. S. C. C), 172, a child was seen upon a railroad track by the engineer: of an approaching train, then 450 feet away. Everything possible was done to stop the train, but it could not be stopped within that distance, , Common brakes were used on the train. It was held that there was no evidence of negligence to sub- mit to a jury. In another case before the same, court, a lame boy, eight years old, climbed upon an engine as it was moving slowly through a city street. The engineer at once stopped the engine with a jerk, the iireman calling to the boy to hold on. The boy either lost his hold or jumpedj and was killed. It was held that there was nothing to submit to a jury. Miles V. Atlantic, Mis.sissippi, &c. R. R. Co., 4 Hughes (IT. S. C. C), 172. In a New York case, the plaintiff's intestate, seven years old, and another boy, at- tempted to cross the track in front of a train. Two flagmen did everything in their power to stop the boys. The plain-'', tiff's intestate fell on the track, and, al- though the flagman tried to pull him off, he was struck and killed. The case was submitted to a jury, who found for the plaintiff. It was held that contributory negligence was shown, and that a' non- suit should have been entered. Wendell V. New York Central, &c. R. R. Co., 91 N. Y. 420. But in the case of a child of tender years, where the circumstancea would justify an inference that he was misled or confused in respect to the actual situation, and that his conduct was not unreasonable in view of those circum- stances and his age, the question of con- tributory negligence is for the jury, al- though he may have omitted some pre- caution which in the case of an adult would be deemed conclusive evidence of negligence. Barry v. New York Central, &c. R. R. Co., 92 N. Y. 289. In an action by a child less than two years old, for injuries received by being run over by a street-car, evidence that he and his sister, about three years old, frequently , played in the street unattended was held SEC. 320.] rNJUEIES TO TEBSPASSEES ON TRACK, ETC. 1473 such as in view of the age and intelligence of the child it ought to have exercised.^ It is not enough to show that the child was upon incompetent. Smith v. Grand Street, Prospect Park, &c. E. E. Co., 11 Abb. (N. Y.) N. Gas. 62. In a Pennsylvania case the defendant owned an ahandoned and unenclosed 'hriekyard, with an open and unguarded, but plainly visible, well in it, about 80 feet from the nearest high- way. The public were accustomed to cross the yard, hut the paths were some- what distant from the well. The nearest dwelling-house was 300 yards distant. The lot was a common place of resort for chil- dren and adults. A boy eight years old was found drowned in the well, having evidently been fishing in it by daylight. It was held that no action would lie. Gilles- pie V. McGowan, lOQ Penn. St. Hi ; 45 ■ Am. Eep. 365. In Alabama, the courts hold that a child under six years old can- not be guilty of contributory negligence. Bay Shore E. E. Co. o. Harris, 67 Ala. 6. In a Louisiana case, a municipal ordinance required drivers of street-cars to keep the boys off the cars. While a driver was at the rear of his oar performing this duty, a child two years old placed itself inside the fore-leg of the mule drawing the car. The position of the child was Such that the driver could have seen it only by stooping. He started up the mule/ and t^e ehi^d was killed. It was held that there was no liability on the part of the company. Hearn v. St. Charks Street E. E. Co., 34 La. An. 160. In Texas, a raUroad company is liable for injuries sus- tained 'by a child seven years old, while playing on the company's turn-table, which had been left unlocked and un- guarded near a public street, the company having knowledge that children were accustomed to play on the turn-table. Evansichs. Gulf, Colorado, &o. E. E. Co., 57 Tex. 126 ; 44 Am. Eep. 686. In another case a two-years old child of the woman who boardfed and kept the section -hands on a railroad undergoing construction, got on to the track, between which and the section-house was no fence, and was run over and its arm cut oSF. The preponder- ance of the testimony was to the effect that the engineer and train-hands used every precaution in.looking out, in trying to stop the train, and to rescue the child, which was seen before it was .struck ; but there was evidence from which the jury might have inferred that an insufficient lookout was kept. It was held that a ver- dict of $8,000 would not be disturbed. ' Texas & Pacific E. R. po. i). O'DonnelV 58 Tex. 27. '1 In Pennsylvania a charge that : " If the boy (being on the track) had sufficient judgment and discretion to know his dan- ger, and did not exercise the ordinary care that one of his age and maturity should, . he was guilty of such negligence as would prevent him frcsn recovering," etc., was held proper. Pennsylvania' E. E. Co. v. Lewis, 79 Penn. St. 33. In a Maryland case, where a boy, in attempting to pass under a car moving along the street, was run over jand seriously injured, it was held that he was not entitled to recover dam- ages from the railway company for the in- jury sustained ; as the attempt to pass un- der the car while in motion was such an act of carelessness as amounted in law to contributory negligence. The child in this case was five years and nine months old. McMahon v. Northern Central R. R. Co., 39 Md. 438. In a New York case, while an engine-driver was backing hia engine northerly across a street in Schen- ectady at the rate of two miles an hour, to take in water, the plaintiff, a boy under- four years of age, ran easterly, on the south side of the street towards the engine, ap- proaehed near to it, turned northerly, ran alongside and beyond it, then turned across the track in front of it, was struck by it and injured. It was held that the railway company was not liable. Schwier V. New York Central & Hudson Eiver E. K. Co., 15 Hun (N. Y.), 572. ,In an action against a railroad company for run- ning over a child which had strayed upon the track, it appeared that the child ivas seen by the engineer in time to avoid the collision, but was mistaken for something else ; and that by the exercise of a proper degree of care and caution, he might,, after Arst observing the object, have discovered that it was a child in time to stop the train before the accident occurred. It was held - 1474 NEGIilGBNCB. [chap. XVIII. the track, and was killed by a passing train or locomotive, but it must also be shown that it whs killed or injured through tlu negligence that, although some negligence might have been attributable to those having charge of the infant, it was not the proximate cause of the casualty, and the company- would be liable. Isabel v. Hannibal & St. Joseph E. E. Co.,, 60 Mo. 475. In a New York case the plaintiff, a girl in her seventeenth year, while crossing defend- ant's tracks, five in number, at a street crossing, had passed over two tracks and was standing near the third track awaiting tlie passage of an express train. She looked once up and dowil the track as she stopped. ' While she waited, an engine which approached without signal, ran upon and injured her. It was held that the same degree of caution was not re- quired of her as of an older person, and the question whether she was negligent was one for the jury. Hayoroft v. Lake Shore, &o. E. E. Co., 64 N. Y. 636. In a Pennsylvania case a boy ten years old, bright, intelligent, strong, healthy and of rather exceptional capacity, was sent by his parents upon an errand along a street in a populous suburb of a city on which a railroad track was constructed. He was killed by a passing train, moving at a very high rate of speed, without whistle or other signal. The only witness of the accident declared that her saw the boy /walking upon the outer ends of the sleepers a sin- gle instant before he was struck. The street was of ample breadth and had suffi- cient sidewalks, and the errand upon which the Ijoy was sent did not require him to cross the track at the point where he was killed. In an action by the boy's pareiits against the railway company to recover damages for his death, the plaintiffs ad- duced evidence which showed the facts to' be as above. The court, awarded a non- suit on the ground of the boy's contribu- tory negligence, and it was held ' that this was not error. Moore tf. Pennsylvania E. E. Co., 99 Penn. St. 301. In a Cali- fbmia case, an action was brought by the father to recover damages for loss of five children, ranging from five to sixteen years old, killed in a collision with a train be- longing to defendant. The children killed were returning home from a May-day pic- nic, in a light wagon drawn by one gentle horse. The oldest, a girl of sixteen, was driving. She was acquainted with the highway over which she was passing and with the point at Which it was crossed by the track. Several persons in vehicles preceded her on the highway, and had crossed over, the nearest one being some four hundred feet in advance ; and she was followed by a boy thirteen years old, at a considerable distance in the rear. On the track, about three hundred ^and thirty-five feet from the point of crossing, ■ was a covered bridge. On either side of the track, between the bridge and its in- tersection with the highway, were a num- ber of trees planted by the defendant, and which had attained such size, as accord- ing to some of the testimony, prevented ^— in connection with some of the neighbor- ing orchards — an approaching train from being seen by those travelling the high- way, until the traveller should reach a point very close to the track. There was also evidence going to show that at the time of the accident the train was slightly behind time, and was running at the rate of from thirty- three to thirty-five miles an hour, whereas the rate at which the trains usually ran at that point was from twenty- five to thirty miles an hour, and there was ' some evidence tending to show that the bell was not rung nor the whistle blown. It was held that this evidence, especially that relating to the increased speed, under the circumstances, itended to show negli- gence on the part of the defendant, and it was for the jury to pass upon the effect of this testimony, which was suflSxiient to jus- tify the verdict. Nehrbas«. Central Pacific E. E. Co., 62 Cal. 820. In a New York case, in an action for the negligent killing of plaintiffs intestate, the evidence showed that he was an intelligent boy thirteen years of age, living near defendant's road, which he crossed daily. He was familiar with the road and the manner of running the trains; the tracks (of which there were two) crossed the highway nearly at right angles. Upon the day of his death! the boy was last seen going from school at noon, toward the tracks, and about one SEO. 320.] INJURIES TO TEESPASSERS ON TRACK, ETC. 1475 of the company ; and to establish this, it must he shown that it could have teen seen hy the efgineera sufficient d'istance from, the place of the cross in front of an approaching train. Shortly before the accident the deceased was standing near the flagman's shanty with a companion, on the street, fifty-one feet from where he was struck ; the ap- proaching train was in plain sight from 4jie pkice where he stood, for a distance of ^.hcrat five hmulred feet from the crossing. The flagmen (two in mnnJaer) liad left the shanty and approached the track in the performance of their duty. The boys both started on a run to cross in front of the train ; the flaginen sholited to them to stop and waved their flags ; one of the flagmen, who stood on the sidewalk ten or fifteen feet distant from the track on which the train was approaching, endea- vored to intercept the deceased, but he eluded him and reached the track, where he slipped and fell and was killed. It was held that a inotion for nonsuit, on the ground of contributory negligence, was im- properly denied. Wendell v. New York Central, &c. E. R. Co.,, 91 N. Y. 420. But in the case of a boy nine years of age who waited on the westerly s^jde of the defendant's road at a public crossing until a long freight train, which was going in a southerly direction had passed, and then immediately attempted to run across the track, without looking along it to see whether another train was approaching, was struck by the locomotive of a passenger train, going north at a speed of about thirty or thjrty-five miles an hour, and which could not be seen because of a cWrve just south of the crossing, which hid the tracks beyond it, and only about thirty-'five sec- onds elapsed from the time the locomotive passed it until it struck the boy, — it was held that the court properly refused to nonsuit the plaintiff on the ground that the deceased had been guilty of contribu- tory negligence. Powell v. New York Central, &o. E. JR. Co., 22 Hun (N. Y.), 56. In a Missouri case, a child two years old, while walking upon a railway track, was injured by the train backing over it^ there was evidence tending to show that no one on the train saw the child, and that if some one on the train had been on the lookout the accident could have been hundred feet therefrom ; a moment there- after two trains, going in opposite direc- tions, passed each other at the crossing ; after the passage of the' trains he was found dead in the cattle-guard between the tracks. At a point in the highway, ten feet from the crossing, the engine of the train by which, as the circumstances indi- cated, the deceased was killed, could have ^been seen seventy-five feet distant. It was a fair day, with but littlp wind. As the evidence tended to show, no signal was given of the approach of the train by which he was killed. It was held, that the proof was insufficient to sustain a ver- dict for plaintiff, as it did not warrant a finding that there was no negligence on the part of the deceased. Reynolds v. New York Central, &c. R. R. Co., 58 N. Y. 248 ; Day v. Flushing, North Shore, &c. R. R. Co., 75 N. Y. 610. In a Ken- tucky case it was held that a girl twelve years of age must exercise what is to be regarded as a reasonable precaution for one of her years for her own safety, and that it is her duty to take notice of the usual and customary signals given by trains on their approach at crossings. Paducah, &c. R. R. Co. v. Hoehl, 12 Bush (Ky.), 41. In Pennsylvania it is held that a child of the age of fourteen yeirfe is presumed to have sufficient capacity to be sensible of danger and to have •■ the power to avoid it ; and this presump- tion will stand until overthrown by clear proof of the absence of such discretion as is usual with children of that age. Nagle V. Allegheny Valley R. R. Co., 88 Peun. St. 35. In New York in a suit for dam- ages for alleged negligence causing the death of W. , plaintiff's intestate, who was killed at a; crossing on the defendant's road, in the city of S., it appeared that the deceased was a bright, active hoy, seven years old, considered competent by his parents to go to school and on errands alone. He was in 'the habit of crossing the railway at the place where the acci- dent happened ; he had been stopped while attempting to cross by the flagmen stationed at that point, and been before cautioned by them against attempting to 1476 NEGLIGENCE. [chap. xvin. disaster so that the train could have been stopped.''- Children have no right to be upon the track of a railway, and it^is contrary to all the avoided. It was held that it was not error to refuse to instruct that defendant was not liable for the damages occasioned by the child being run over. Friek.». St. Louis, Kansas City, & Northern R. R. Co., 5 Mo. App. 435. In a Kansas case, it ap- peared that the Atchison, Topeka, & Santa Fe R. E. Co. owned a side track about four hundred and fifty feet long, situated upon its own right of way, and' partially within the limits'of Osage City, and near several dwelling-liouses. It was not inclosed, and children occasionally played upon it. A running at an unusual rate of speed, or at a rate prohibited by the ordinance of the town ; that the whistle was sounded at the proper place, and a bell kept continu- ously ringing until the crossing was passed where the accident occurred ; that the de- ceased heard the whistle, and, in company with two other boys, started for the cross- ing ; that the other two crossed over the track, and the deceased, in attempting to follow, when the engine was but about sixty feet from him, stumbled and fell upon the track, and that those in charge coal-shaft was situated by the side of it, , of the train used every exertion to check about three hundred feet from where it connected with the main track ; and from the coal-shaft toward the main track it descended to a point within about seventy- five feet from the main track, and then as- cended to the main track, so that cars loaded at the coal-shaft would descend of their own weigljt to the lowest point, or beyond it, but would finally settle at that point. One car was loaded at the coal- shaft and was allowed to run down the side track to the lowest point, where it settled and remained. Afterward another oar was loaded and allowed to ■ run down against the standing car, and in so doing the plaintifl', who was a child two years old, was ran over and injured. Whether the employes at the coal-shaft looked to see whether the track was clear, is a dis- puted question of fact ; also, whether they could have seen the plaintiff, is likewise a disputed question of fact ; and whether the plaintiff was under or behind the first car, is also a disputed question of fact. But supposing that the employes at the coal-shaft did not look before permitting the second car to move, and ^supposing that they could not have seen the plaintiff if they had so looked, it was then held that their acts did not constitute negli- gence^er se, for which the court could, as a matter of law, declare the railroad com- pany to be responsible. Atchison,' Topeka, & Santa Fe R. E. Co. v. Smith, 28 Kan. 541. In an Illinois case the deceased was a hoy of the age of six or seven years, and it appeared that the defendant's train, which ran over and killed him, was not the train, which was a heavy freight train, but could not in time to avoid the acci- dent. It was held that a recpvery could not be sustained. Chicago' & Alton R. R. Co. V. Becker, 76 111. 25. In a New York case, where the plaintiff's intestate was a boy ten years of age, the train which ran over him went over the crossing fol- lowed by a freight train. The bell on the freight train was ringing, and the flagman on the crossing was flagging it, paying no attention to the other. The first train was switched on to another track and hacked up on the track the boy attempted to cross. There was no direct proof as to what precautions he took before crossing the track ; bat it was held that tlie ques- tion of contributory negligence was prop- erly submitted to the jury, and that it was competent for them to infer that the boy, seeing the first train pass, supposed it was going on, and, his attention being at- tracted by the freight train, he did not observe that the first train had changed its direction, and was hacking np. Barry v. N. Y. Central, &c. R. R. Co., 92 N. Y. 289. 1 Frick V. St. Louis, &c. R. R. Co., 75 Mo. 595 ; Ex parte Stell, 4 Hughes (IT. S. C. C), 157. In Pennsylvania, the courts hold that except at public crossings, where the public has a right of way, a railway company has the exclusive right to its track, and it owes no duty to the father of a child of tender years trespassing thereon, nor to t^ child itself. Cauley v. Pittsburgh E. R. Co., 99 Penn. St. 398. But a railway company is responsible for an BEC. 320.] injcTeies to teespasseus on teack, etc. 1477 principles underlying this branch of the law, to hold that the com- pany is bound to respond in damages for an injury to them, when injury to a child trespassing on its track-, where the injury might heme been prevented had the eiwployis of the company iised ordinary care in keeping an outlook. Texas & Pacific E. E. Co. v. O'Donnell, 58 Tbx. 27. While the defendant's train was running at an unlawful speed within the limits of a city, a boy nearly ten years of age attempted to cross the track in front of it, and in attempting to do so, was killed. The- jury found that he was in a position to see the train before he ran upon the track, and that he had sufficient in- telligence_ to know the danger he was in- curring, but also found that, in the cir- , cumstances of the case, he could not have avoided the injury by the exercise of ordi;, nary care. There was no evidence tending to show any necessity for bis crossing before the train should pass. It was held that the findings are inconsistent, and a judg- ment against the defendant must be re- versed. Haas v. Chicago, &c. R. R. Co., 41 Wis. 44. When a child, who was walking upon a railroad bridge, fell there- from as a train was passing over, it was_ held, in an action against the company by his administratrix, that it was not neces- sary for plaintiff to prove that the child was struck by the train to' «nable her to recover, but that the defendant was liable if the fall was occasioned by the negligent acts of its employes, in the absence of negligence on the part of child. McMil- lan V. Burlington, &c. E. E. Co., 46 Iowa, 231. The fact that a boy has been warned to keep away from a depot as a place of danger does not necessarily constitute him a trespasser in going there. He was in- jured by a projecting timber from a freight car. It was held that the liability of the railway company embraced a want of ordi- nary care, and was not confined to the re- -sult of wanton acts. Hicks v. Pacifio E. E. Co., 64 Mo. 430. A statutory pro- vision that "any corporation operating a railway, that fails to fence the same against live-stock running at large, at all points where such right to fence exists^ shall be liablt to the owner of any stock injured or kiUed by reason of the want of such fence, or for the value of the property or damage dansed, unless the same was occasioned by the wilful act of the owner or agent," does not impose on the corporation the absolute duty of fencing, and it will not be liable for an injury caused to a child by reason of the absence of a fence alone, no other fault or negligence being charged. Wal- kenhauer v. 'Chicago, &g. R. E. "Co., 17 J'ed. Rep. 136 j-Walkenhauer v. Chicago, &c. E. R. Co., 3 McCrary (U. S. C. C), 553 ; Fitzgerald v. St. Paul, Minne- a,polis, &c. R. R. Co., 29 Minn. 336. But in a case before the United States Supreme Court recently decided but riot yet reported, — Hayes v. Railroad Co., 31 Alb. L. J. 32, — where a municipal ordi- ' nance, granting to a railroad the right of way through the city, requires- it to main- tain suitaWe fences, and provides that upon the acceptance by the company of the benefit of the ordinance, covenants shall be executed by both parties, embody- ingits'terms, the enactment is not merely a contract between the public corporation and the railroad, but a positive mandate for the benefit of the individual citizens, any one of whom- is entitled to recover damages suffered by him through the neg- lect of the company to discharge the duties thus imposed. The ordinance requiring such sufficient walls and fences to be main- tained as would secure persons and prop- erty from danger, " said structure to be of such height as the city council may direct," it wa^ held that the obligation to build sufficient fences was absolute. The right of the council was to give specific direc- tions if it saw proper, and to supervise the work when done, if necessary ; but it was matter of discretion, and they were not re- . quired to act in the first instance, nor at all, if they were satisfied with the work as executed by the railroad company. The plaintiff, a child, who was playing in a public park strayed upon the railway and was injurAi ; it was held that it was a question of fact for the jury whether the absence of a fence was the cause of the mishap. It is not necessary, in order to charge the company with the responsibil- ity, that its negligence should be the efficient cause of the injury ; if the injury 1478 NEGLIGENCE. [chap, xviir. they are there wrongfully, unless it covtld have pr&vented the injv/ry ly the exercise of such care as ought to be observed by them, in view of the would not have occurred but for such neg- ligence, that is enough. ' The nature of the duty,' said Coolby, J., in Taylor v.' Lake Shore, &c. R. R. Co., 46 Mich. 74, 40 Am. Kep. 457, 'and the benefits to be accomplished through its performance^ must generally determine whether it is a duty to the public in part or exclu- sively, or whether individuals may claim that it is a duty imposed 'wholly or in part for their especia 1 enefit. See also Eailroad Co. v. Terhune, 50 111. 151 ; Schmidt v. Milwaukee, &c. R. R. Co., 23 Wis. 186 ; Siemers v. Eisen, 54 Cal. 418 ; Galena, &c. R. R. Co. v. Loomis, 13 111. 548 ; 0. & M. R. R. Co. v. McClelland, 25 id. 140 ; St. Louis, &o. R. R. Co. ■». Dunn, 78 id. 197 ; Massoth v. Railroad Co., 64 N. Y. 521 ; B. & 0. E. R. Co. v. State, 29 Md. 252 ; Pollock v. Eastern R. R. Co., 124 Mass. 158. In an Eng- lish case, the defendant's line crossed a public foot-path on the level ; but the de- fendant had not erected any gate or stile as .provided by 8 and 9 Viet., c. 20, s. 61. The plaintiff, a child of four years and a half old, having been sent on an errand, was shortly afterwards found lying on the level crossing, a foot having been cut off by' a passing train ; it was held that there was evidence to go to the jury that the accident was caused by ihe neglect of the defendant to fence. Williams v. Great Western Ry. Co., L. E. 9 Exchq. 167. Where a. railroad track is constructed it. a — it was held that the court cannot say, as a matter of law, that the persons operat- ing the road were not guilty of negligence; but it a question of fact, which should be submitted to the jury. Smith v. Atchison, ■ &c. R. R. 'Co., 25 Kan. 738. Whfere a boy sitting on trestle-work under one of a train of freight-cars was run over and killed by the starting of the train, an in- struction was held proper which declared, as a matter of law, that his position was an unsafe one, without leaving the ques- tion to the jury to determine, under all the circumstances. Osterlog v. Pacific R. R. Co., 64 Mo. 421. A (ihild about nine years old was sent by his mother, who resided in HaiTisburg, near defendant's railway, on an errand across the road ; whilst on the track he was killed by an engine going westward ; there were iron- works, and houses for the hands on the opposite side of the- track at that point, which was in the outskirts of the city ; and the hands of the works and other per- sons were frequently crossing about the place. East of where the boy was struck was a curve which prevented the engine- driver from seeing him till within too short a distance to stop the train after he was seen. There was no ordinance of the city limiting the rate of running trains at that point. There was evidence that the train was running at a high rate of speed. It was held that whether the train was run- ning at a rate of speed which was safe and populous neighborhood near a city, and prudent under the cirenmstances was for children often go upon the track, and a portion of the track has a steep grade down which cars will run with gi'eat force when the brakes are loosened, and the per- sons operating the road loosen the brakes of a car loaded with coal, and let it run down this steep grade, without any person being on the car, or without any means of stopping it, and without first looking to see whether the track was clear, or whether any person was on the track or not, and a child who was on the track was run over and injiired, and there is a conflict in the evidence as to whether the child could have been seen by the persons operating the road before they loosened the brakes, the jury. Penn. R. R. Co. o. Lewis, 79 Penn. St. 33. The mere fact that a boy, between six and seven years old, was upon a railway track at or near a street crossing, even though his father had, a short tiriie previous, seen him going toward the track, is not enough to establish contributory negligence as a matter of law. Johnson V. Chicago, &6. E. E. Co., 66 Wis. 274. But it is negligence in a parent to permit a child between three and four years of age to be upon a railway where trains are frequently passing ; and if the child is killed by a train the parent cannot re- cover damages therefor, unless such killing be done purposely or wilfully. Jefferson- SEC. 320.] INJUEIES TO TRESPASSEES ON TEACK, ETC. 1479 locality. In Massachusetts^ it is held that a railway company owes no higher duty to an infant trespasser upon itst^ack;-— as,in the case did not appear how it got upon the track, or that it was ever known to have been there before, or that its absence had been discovered when the accident occuiTed. Its father was a butcher, and at the time was at his shop in another part of the city. Its mother, besides the care of her house- hold duties, in which she had no help, had charge of an infant about one , month old. It was held that under these circumstances the father could not,' as a matter of law, be held chargeable with negligence in per- mitting the escape of the child. Frick i?. St.- Louis, &c. E. E, Co., 75 Mo. .542. The operation of a railway over and along public highways in a village or city being necessarily attended with great peril to human life, railway companies are held to the utmost care on the pari of their ser- vants to avoid inflicting injury under such circumstances. And in this action against a company for the killing of a child of six years by a train while crossing a city street, a judgment of nonsuit is reversed on the ground that the questions of negli- gence on defendant's part, and contribu- tory negligence of the child pr its parents, should have been submitted to the jury on the evidence. Johnson v. Chicago, &C; E. E. Co., 49 "Wis. 529. ' Morrissey «. Eastern E. E. Co., 13,6 Mass. 377 ; 30 Am. Eep. 686. See also Brown v. Eurqppan, &c. E. E. Co., 58 Me. 384 ; Mangan v. Atterton, L. E. 1 Exchq. 1. In Gavin «. Chicago, 97 111. 66, 37 Am. Bep. .99, a municipal corpo- ration maintaining a swing bridge in one of its streets, keeping it safe for pers'ons using ordinary care, was held not bound to erect barriers or station watchaien for the protection of young children playing about the same without the knowledge of their parents. In Pennsylvania and Iowa it is^ held that a railway company, as a matter of law, is not bound to stop a train upon seeing a child upon the track. Penri. E. E. Co. V. Morgan, 82 Penn. St. 134; Walters^!;. ChicagOj &c. E. E. Co., 41 Iowa, 71. But in New York it is held that if a young child is seen upon the track, and the train might have been stopped in season to avoid the injury, the company is ville, &c. E. E. Co. v. Bowen, 49 Ind. 154 ; Albertson v. Keokuk & Des Moines E. E. Co., 48 Iowa, 292. In a Wisconsin case, it was held that where a boy was killed by an engine in crossiijg the defend- ant's track, if it was clear- from the Undis- puted facts that the boy himself, consider-, ing his age and intelligence, did not exercise proper care in crossing the track, or that, in view of his tender years, his mother was guilty of contributory negli- gence in permitting him to go alone, on the errand upon wbich he was sent, the trial court might determinej as a proposition of law, that there could be no recovery. The court instructed the jury that "looking at the case as the person injured in fact was, as to age and inteUigenoe," if he was not "in the exercise of ordinary care and cau- tion in going on the track, but was guilty of negligence in doing so, and by reason thereof was killed," no recovery could be had, although the defendant was running the engine' at an unlawful speed ; but if he was of such tender years as to be unfit to be allowed to go alone in such a place, and not capable of exercising ordinary care, it was negligence on the part of those having him in charge to allow him to do so ; and "if the injury was occasioned or contributed to by reason of his inability to exercise ordinary care," plaintiff could not recover. It was held that there was no error, as against the defendant, in these instructions, nor in a refusal to further charge that if the mother sent the, boy across the tracks, and failed to caution him to use care in crossing them, she was gtiilty of negUgence which would prevent a recovery. Ewen v. Chicago, &e. E. E. Co., 38 Wis. 613. When the parents of an infant are unable to give him their personal care, and intrusl^him to the super- vision of a suitable person, the negligence of the latter cannot be imputed to the parents, and will not defeat a recovery for negligence resulting in the death of the infant. Walters «. Chicago, &o. E. R. Co., 41 Iowa, 71. A child two years of age, without the knowledge of its parents, escaped from its home and strayed upon a railroad track, where it was injured. It 1480 NEGLIGENCE. [chap. XVIII. xeferred to, a child six years, old — than it owes to an adult, and is only liable for an injury inflicted upon him there when it is mali- ciously inflicted, or is the result of gross and reckless carelessness. But while this doctrine accords better with principle than some of the cases previously cited, yet the court seems to lose sight of the fact that children of tender years are not presumed to be possessed of judgment and discretion, and that the company has no right, as in the case of an adult person, to presume that they will take them- It seems to us that the better rule is,^ that a selves out of danger, liable. Kenyoti v. New York, &c. B. B. Co., 5Hun(N.Y.), 479. 1 Chicago, &c. E. E. Co. v. Becker, 84 111. 483; McGoyern v. N. Y. Central E. B. Co., 67 N. Y. 417 ; Willetts v. Buffalo, &c. E. E. Co., 14 Barb. (N. Y.) 585; Ken- yon i!.'Ne* York Central E. E. Co., ,5 Hun (N. Y.),, 479; Lafayette, &c. E. B. Co. v. Huffman, 28 Ind. 287 ; Colt v. Sixth Ave. B. E. Co., 33 N. Y. Superior Ct. 189 ; Gonzales v. New York, &c. R. R. Co., 38 N. Y. 446; Central R. B. Co. v. Fuller, 84 Penn. St. 226; Cleveland, &c. E. R. Co. v. Terry, 8 Ohio St. 570 ; Walters v. Chicago, &c. E. E. Co., 41 Iowa, 71; Philadelphia, &o. E. R. Co. V. Hummell, 44 Penn. St. 375; Citizens' St. B. B. Co. v. Carey, 56 Ind. 396; Philadelphia, &c. R. R. Co. v. ^ Long, 75 Penn. St. 257; Schwiei- v. N, Y. Central R. R. Co., 15 Hun (N. Y.), 572; Bulger V. Albany, &c. R. R. Co., 42 N. Y. 459; McKenna v. New York, &c. R. E. i Co., 8 Daly (N. Y. C. P.), 304; Mor- rissey v. Eastern R. Co,, 126 Mass. 377. In a case before the Nebraska court, 6., a boy between eleven and twelve years of age, while walking on a railroad track' at a point where there was no thoroughfare, by accident stepped between the guard and main rail at a switch, and was unable to extricate his foot, "and a switch engine being turned on to that line, ran over and crushed his foot. It was held that if the employ^ of the company, after becoming aware of the perilous condition of the plaintiff, by the exercise of a reasonable degree of eare, could have prevented the injury, the company was liable. The rule is well settled that a party who is injured by the mere negligence of another cannot recover for the injury, if he by his ordinary negligence' or wilful wrong, proximately tjontributedto produce the injury com- plained of, so that but for his co-operat- ing fault it. would not have occuiTed, except where the proximate cause of the injury is the otpission of the defendant, after becoming aware of the danger to which the plaintiff is exposed, to use a proper degree of care to avoid injuring him. Cleveland, &o. R. E. Co. v. Elliott, 4 Ohio St. 474 ; Brown <>. Hannibal, &c.. R. E. Co., 50 Mo. 461; BaUroad Co. v. Davis, 18 Ga. 679; Cooper i). Central E. R. Co., 44 Iowa, 134; Cooley,jrorts, 674; Trow v. Railroad Co., 24 VtT 487 ; IsbellB. Railroad Co., 27 Conn. 393; Hicks V. Railroad Co., 64 Mo. 430. If therefore the employes of the defendant in charge of the locomotive, after being aware of the perilous condition of the plaintiff, did not exercise a reasonable degree of care to pre- vent the injury, the defendant cannot rely on the plaintiff's negligence to defeat the recovery. Burnet't v. Burlington, &c. R- Co., 16 Neb. 332; 20 N. W. Bep. 280. In a Michigan case, in an action for injuries to a child, eight years old, by the sudden start- ing of a locomotive upon the step of which he had been standing and from which he had just been ordered away by the fireman, it appeared that in getting down he acci- dentally fell, and the tender passed over his arm. He was a trespasser upon the prem- ises, had been warned against going there, and was a child of more than average in- telligence. It was held that the railway company could not be held liable without showing that the engineer or other servant of the company in charge of the locomotive knew that the plaintiff was in the way of ' the engine, or that they had been reckless or negligent in their management, or could have anticipated the Injuiy. Chicago & SEC. 320.] INJURIES TO TRESPASSEKS ON TRACK, ETC. 1481 railway company is bound to keep a proper lookout, especially in populous localities, for objects upon the track ahead of a moving train, and if a jhild is seen thereon, to bring its train to a stop ; and that upon its failure to do so it is chargeable with actionable negli- gence ; but that, if the child is upon the track at a point where it N. R. Co. V. Smith, 46 Mich. 504. It is well settled that a railroad company must provide for a careful lookout in the direc- tion that the train is moving, in places where people, and especially where chil- dren, are liable to be upon the track. If they do not, and a person has been injured, then the company may, in the, absence of contributory negligence, be held liable. Butler V. Milwaukee, &c. E. Co,, 28 Wis. 487; Ewen v. Chicago, &c. K. Co., 38 Wis. 613 ; Farley v. Chicago, &c. R. Co., 56 Iowa, 337 ; 9 N. W, Rep. 230 ; Cheney v. N. Y. Central E. Co., 16 Hun (N. Y.), 415. Even though the statute makes it unlawful for a person not connected with or employed upon a railroad to walk along the track thereof,, " except when the same shall be laid along public roads or streets," yet where, in an action against a rriilway com- pany -for injury from negligence, the ques- ■ tion is whether a person injured while walking upon a railroad track was guilty of a want of ordinary care, it is error to reject evidence showing that many persons, men, women, and children, had, for years before the accident in question, been in tha habit of passing daily and honrly up and down in the same pathway on which the injured person was passing, — since such testimony would tend to show a license, or to repel the inference of a want of ordinary care, and also to show a lack of such care on defendant's part as the facts required. Under such a statute in Missouri it has been held that "though it is wnlawfid for one not connected with a railroad to walk upon its tracks, and it is ' presumed that every one will obey the law, \ yet this will not relieve the railroad corpo- raUon from the duty of keeping a careful lookout while running its trains upon the streets of a city." Frick v. St. Louis, &c. R. Co., 5 Mo. App. 435. See also Daley V. Norwich, &c. R. Co., 26 Conn. 591. Ordinary care is such care as would ordi- narily be exercised by persons of the age and in the situation of the person sought VOL. II. — 43 to be charged with negligence ; and the fact that the person injured was a child of tender years is to be \Cousidered in deter- mining the question of contributory neg- ligence. Johnson v. Chicago, &o. E. Co., 49 Wis. 529. It is now almost universally held that a child of tender years is not to be held to the same rule of care and dili- gence in avoiding the consequences of the negligent or unlawful acts of others, that is required of persons of full age and capacity. Pennsylvania E. Co. v. Kelly, 81 Penn. St. 372 ; Bauoh v. Lloyd, 31 Penn. St. 358 ; Glassey v. Hestonville, &c. E. Co., 57 Penn. Sf. 172; Pittsburgh R. Co. V. Caldwell, 74 Penn. St. 421 ; East Saginaw R. Co. v. Bohn, 27 Mich. 503 ; Bellefontaine R. Co. v. Snyder, 18 Ohio St. 399 ; Robinson v. Cone, 22 Vt. 213 ; Railroad Co. v. Stout, 17 Wall. (U. S.). 657 ; Boland v. Missouri River R. Co., 36 Mo. 484 ; Chicago R. Co. v. Gregory, 58 111. 226 ; McMillan v. Burlington, &c. jB. Co., 46 Iowa, 231. In Lynch v. Nurdin, 1 Q. B. 29, the plaintifif was but seven years of age, and at the time of the injury was committing a trespass by getting upon the defendant's cart hitched to his horse, and which had been negligently left by him in the street unattended, and Lord Denman, C. J., said': "Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation, 'and this would evidently be veiy small indeed yi so young a' child. But this case presents more than the want of care ; we find in it the positive misconduct of the plaintiff, — an active instrument towards the effect." He then reviews the authorities and concludes that "for these reasons we think that nothing appears in the case which can pre- vent the action from being maintained. It was properly left to the jury, with whose opinion we fully concur." See opinion of Cassodat, J., in Townley v. Chicago, &c. R. Co., 53 Wis. 626. 1482 NEGLIGENCE. [chap. xvin. cannot be seen a sufficient distance away to bring the train to a stop, or in the night-time, the company is not chargeable with negligence ; and thisf seems to be substantially the rale generally held. In a recent case in Mississippi, it appeared that a child of seven years lay down on the track and went to sleep there. The engineer of an approaching train saw it while at a sufficient distance from it to have stopped his train, but supposing that it was a dog or a bundle kept on, and did not discover his mistake until so near that it was im- possible to stop the train in time to save the child. Immediately on perceiving his mistake, however, he reversed his engine, put on the breaks, and did everything in his power to avoid the injury. The court held that the child was a trespasser, that the evidence showed no negligence on the part of the engineer, and that the company was therefore not liable.^ It appears that this case applies the 1 liouisville, &o. R. Od. v. Williatas, 69 Miss. 631. As to children on the track, and the rights and duties of the company in such cases, see ante, pp. 1470 et seg. In Moore v. Pennsylvania E. Co., 99 iPenn. St. 301, an intelligent hoy, ten years feld, was walking on theends of the sleepers of defendant's track laid in a public street in a populous neighborhood ; thei'e was an ample sidewalk on each side of the track ; he was strnck and killed by a rapidly passing train . A non-suit was sus- tained, two judges dissenting. The court said ; "Of course, in such circumstances, he was a trespasser, and not only put him- self in peril by his rashness, but also en- dangered the safety of any passing trains and the lives of passengers. We have so frequently held, that in such, circum- stances there can be no recovery, that it is unnecessary to quote the authorities. As the testimony was entirely undisputed, it was the duty of the court to pass upon it, which they did by directing a non-suit. In this there was no error. The circum- stance that the trespasser in this instance was a boy ten years of age cannot affect the application of the rule. The defend- aiit owed him no greater duty than if he had been an adult. They are not subject to an obligation to take precautions against any class of persons who may walk on and along their tracks. In Phila., &c. K. Co. v. Hummell, 44 Penn. St. 375, the rule was applied to the case of a child seven years old. And so also in Cauley v. Pittsburgh, &c. R. Co., 98 Penn. St. 498, the rule was in nowise re- laxed, although the person injured was a boy of tender years. In the first of these cases we used the following lan- guage, having reference to the facts in - evidence : ' But if the use of a railroad is exclusively for its owners or those act- ing under them, if others have no right to be upon it, if they are wrong-doers whenever they intrude, the parties law- fully using it are under no obligation^ to take precautions against possible injuries to intruders upon it. Ordinary care they must be held to, but they have a right to presume and act on the presumption that those in the vicinity vyill not violate the laws; mill not trespass upon the right of a clear track ; that even children of a tender age will not be there; for though they are personally irresponsible, they cannot be upon the railroad without a culpable vio- lation of duty by their parents or guar- dians. Precaution is a duty only so far as there is reason for apprehension. No one can complain of want of care in another where, care is only rendered necessary by his ovm wrongful act.' " See also Mason v. Missouri Pac. E. Co., 27 Kan. 83 ; 41 Am, Rep. 405. An engineer is not hound to expect that helpless infants will be on the track, without sufficient knowledge SBC. 320.] INJURIES TO TRESPASSEES ON TRACK, ETC. 1483 correct doctrine though it must be conceded that there are a number of authorities holding the other way.^ Infancy is an " iniirmity " ■which is obvious, and differs therefore from blindness or deafness, and the employes of a railroad company and other persons are bound to recognize it as indicating a less capacity for self-preservation than where the age is greater.^ ' But where, as in the cases under consid- er atility to escape when warned of danger. Chrystal v. Troy, &o. E. Co., 105 N.Y. 164 ; 31 Am. & Eng. R. Cas. 411. 1 In Isabel v. Hannibal, &c. R. Co., 60 Mo. 475, where an infant lying on );he track was mistaken for a hog or dog, and no effort was made to stop the train, the company was held liable. But in this case it appeared that the train could have been stopped after the engineer should have seen his mistake. And in East Ten- nessee, &c. R. Co. V. St. John, 5 Sneed (Tenn.), 524, where a train ran over a Mave eight years old, asleep on the track, and visible a quarter of a mile distant, hut mistaken for a coat of one of the laborers, the company was held liable. These cases go upon the principle that where a human life is involved, in the case of a possible doubt, it must be re- solved in favor of the preservation of the life ; in other words, that under such cir- cumstances the train should be stopped, rather then involve the risk of taking a life ; but the correctness of this reasoning admits of doubt. Mulherrin v. Delaware) &c. R. Co., 81 Penn. St. 366 ; Indianapolis, &c. R. Co. V. McClaren, 62 Ind.' 566; Lake Shore, &c. R. Co. «. Miller, 25 Mich. 279. In the case of Meeks v. Southern Pacific R. Co., 56 Oal. 513, 38 Am. Rep. 67, an infant, six or seven years old, lying in- sensible or asleep on a railway track, near a highway grossing, was injured by a train. He was perceived by the fireman and engi- neerin time to stop, but they' supposed him a bunch of leaves or weeds, until too late. Ko warning signal was given. His parents had forbidden him to go on the track. It was held that a recovery was warranted. The court observed; "The question remains: Does the case show such contributory negligence on the part of the plaintiff or his parents as will preclude a recovery by him ? In our opinion, the doctrine or the cases of ^eedham' v. San Francisco, &b. R, Co., 37 Cal. 409, Kline V. Central Pacific E. Co., id. 400, and the other cases in this court approving them, determines the question in the negative. Said the court in Needham v. San Fran- cisco, &c. E. Co. : ' No more in law than in morals can one wrong be justified or excused by another. A wrong-doer is not an outlaw, against whom every man may lift his hand. Neither his life, limbs, nor property are held at the mercy of his adversary. On the contrary, the latter is bound to conduct himself with reasonable care and prudence, notwithstanding the fault of the former ; and if by so doing he can avoid injuring the person or property of the former, he is liable if he does not, if by reason thereof injury ensues.' Re- ferring to the rule adopted in New York, the court proceeds: ' The error of the New York courts lies in the fact that they ignore all distinction between oases where the negligence of the plaintiff' is proxi- mate, and where it is remote, and in not limiting the rule which they announce, to the formei;.'" See also where company was held liable for injury to infant tres- passers on its track, Keyser v. Chicago, &c. R. Co., 56 Mich. 559 ; Barry v. New York, &o. R. Co., 92 N. Y. 289 ; 44 Am. Rep. 377 ; 13 Am. & Bng. E. Cas, 615 ; Taylor V. Delaware, &c. R. Co., 113 Penn. St." 162 ; 57 Am. Rep, 446 ; Scoville a. Hannibal, &c. R. Co., 81 Mo. 434. 2 "The rule of law in regard to the negligence of an adult and the rule in regard to that of an infant of tender years, are quite different. By the adult there must be given that care and atten- tion for his own protection that is ordi- narily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly and cannot be visited upon another. Of an infant of tender years less discretion is required, and the degree depends upon his 1484 NEGLIGENCE, [chap. XVIII. eration, it is impossible to distinguish whether the object on the track is a human being or not, this principle can have no application. And it would be a harsh rule that would require an engineer to stop his train at every appearance of any object on the track ahead because there is a possibility of its being a child.^ Sec. 321. children injured by Dangerous Agencies left exposed in Public Places. — In some of the States, and in the United States Court, it is held that if a railway company leaves dangerous machin- ery or agencies exposed in a locality where it is accessible to chil- dren, it will under most circumstances be liable, a,lthough it would not be so, under the same circumstances, to an adult person. Thus, in a case before the Upited States Supreme Court,^ the plaintiff, a child six years old, was injured while playing with the turn-table of a railroad company. The table was on the company's land, but near two public roads, without visible separation from them, and was left unattended and unlocked, and easily revolved on its axis. The in- jury happened by the table being set in motion by other boys. It appeared that the hoys of the neighborhood were in the habit of resort- ing to the place for play. 'A verdict for the injured child against the railroad company was sustained. In a Minnesota case,^ a child was 586 ; 16 N. Y. Supp. 770 ; 131 N. Y. 131 (child injured by playing on lumber piled an open place — recovery allowed). age and apparent knowledge. Of a (ihild of three years of age less caution would be req[uired than from one of seven, and of a child of seven less than one of twelve." Railroad Co. «. Gladmon, 15 Wall. (U. S.) 402. Quoted and applied in Kansas Pac. E. Co. V. Whipple, 39 Kan. 531 ; 37 Am. & Eng. R. Cas. 320 (injury, to child tres- passing on track). 1 Lake Shore, &c. R. Co. v. Miller, 25 Mich. 279 ; ante, 1467. . 2 Sioux City, &c. R. Co. v. Stout, 17 Wall. (U. S.) 657. See this case followed in other turn-table cases, Barrett v South- ern Pac. R. Co., 91 Oal. 296 ; 27 Pac. Rep. 666; Callahan v. Eel River R. Co., 92 Cal. 89 ; Fort Worth, &e. R. Co. v. Measles, 81 Tex. 474 ; Gulf, &c. E. Co. v. McWhirter, 77 Tex. 356 ; 14 S. W. Rep. 26 ; Fort Worth, &c. R. Co. v. Robertson (Tex.), 16 S. W. Rep. 1093; Ilwaco R. & Nav. Co. «. Hedriek, 1 Wash. St. 446; 25 Pac. 335 ; Ferguson v. Columbus, &c. R. Co., 77 Ga. 102 ; Harriman v. Pittsburgh, &o. R. Co., 45 Ohio St. 11 ; Taylor v. Delaware, &o. R. Co,, 113 Penn. St. 162 ; 57 Am. Rep. 446. See also Earl v. Crouch, 57 Hun (N. Y. ), Ooniipare Bates v. Nashville, &c. R. Co. (Tenn.), 15 S. W. Rep. 1069. ' Keffe .;. Milwauke, &c. E. Co., 21 Minn. 2.07 ; 18 Am. Rep. 393. See the same principle applied in Gunderson r. Northwestern Elevator Co., 47 Minn. 161 ; 49 N. W. Rep. 694, where a child was injured while playing with part of the elevator machinery, his presence being known to the employ^ in charge ; and in Gay V. Essex Electric R. Co. (Mass.), 34 N. E. Rep. 186, recovery allowed where child was injured while playing on a car left in the public street with unfastened brakes. In Hydraulic Works Co. v. Orr, 88 Penn. St. 332, an action was brought by the parents of the child who was killed, aud who was six years old. The facts appear in the opinioh, which is as follows: "It is true that where no duty is owed, no liability arises. If, therefore, one leaves a stick of timber standing upright against his wall, or an open pit in his private yard to which others have not access, and a per- SEC. 321.] CHILDREN INJURED BY DANGEROUS AGENCIES. 1485 injured by a turn-table left unfastened and unguarded in a place where children were likely to stray, and the company was held liable. The court said: "The defendant knew that by leaving this turn- table unfastened and unguarded, it was not merely inviting young children to come upon the turn-table, but was holding out an allure- ment which, acting upon the natural instincts by which children are controlled, drew them by those instincts into hidden danger." In a Kansas case,-' a boy twelve years old having been injured while playing on a railway turn-table left unlocked and unguarded, the jury found a verdict in his favor, and the court, in refusing to disturb it, went on to say : " It would seem from the evidence that the turn-table was a dangerous machine for boys to use, and yet that it was easily turned or revolved upon, its axis, and that it was of that alluring character which would naturally invite boys to use it and to play upon it. It was situated less than half a mile from Leavenworth, a populous city, in an opeii prairie, . where the cattle of citizens roamed and grazed, where persons fre- son strays in without invitation, or comes in without right, and pulls down the timber upon himself, or falls into the pit, he can have no action against the owner of the yard for the alleged negligence. He had no business there, and the owner owed him no duty. But it has been often said duties arise out of circumstances. Hence, where the owner has reason to apprehend danger, owing to the peculiar situation of his property and its openness to accident, the rule will vary. The question then becomes one for a jury, to be determined upon all its facts of the probability of danger and the grossness of the act of imputed negligence." 1 Kansas Central R. Co. v. Fitzsim- mons, 22 Kan. 686 ; 31 Apn. Rep. 203. In Sioux City, &c. R. Co. v..' Stout, 17 Wall. (U. S.)'657, at the trial in the court below the jury were instructed as follows : "To maintain the action, it must appear by the evidence that the turn-table, in the con- dition, situation, and place where it then was, was a dangerous machine, — one which, if unguarded or unlocked, would be likely to cause injury to children ; that if, in its construction and the manner in which it was left, it was not dangerous in its nature, the defendants were not liable for negli- gence ; that they were further to consider whether, situated as it was as the defend- ant's property, in a small town, somewhat remote from habitations, there was negli- geno6 in not anticipating that injury might occur if it was left unlocked or unguarded ; that if they did not have reason to antici- pate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligent>e. " This instruction was distinctly approved by the Supreme Court of the United States. In the opinion they say : " Upon the facts proven in such cases, it is matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Cer- tain facts we may suppose to be clearly established, from which one sensible, im- partial man would infer that proper care had not been used and that negligence existed ; another man, equally sensible and equally impartial, would infer that proper care had been used and that there was no negligence. It is this class of cases, and those akin to it, that law commits to the decision of a jury. . . . It is assumed that twelve men know more of the com- mon affairs of life than does one man ; that they can draw wiser and safer conclusions from admitted facts thus occurring than a single judge." See also Atdhison, &c. B.' Co. V. Bailey, 12 Neb. 333. ' 1486 NEGLIGENCE. [CHAP. XVm. quently passed and repassed, and where boys often played, and yet it was left without locks or fastenings, and without being watched or guarded, or even fenced in. That it would naturally attract boys and induce them to ride upon it, all men ought to know. Everybody knows that by nature and by instinct boys love to ride, and love to move by other means than their own locomotion. They will cling to the hind ends of moving wagons, ride upon swings and swinging gates, slide upon cellar-doors and the rails of stair-cases, pull sleds up hill in order to ride down upon them on the snow, and even pay to ride upon imitation-horges and imitation-chariots swung around in a circle by means of steam or horse power. This last is very much like riding around in a circle upon a turn-table. Now, everybody knowing the nature and the instincts common to all boys must act accordingly. No person has a-right to leave, even on his own land, dangerous machinery calculated to attract and entice boys to it, there to be injured, unless he first take proper steps to guard against all danger ; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negli- gence. It is a violation of that beneficent maxim sic uter^ tuo ut alienum non Imdas. It is true that the boys in such cases are tech- nically trespassers. But even trespassers have rights which cannot be ignored, as numerous cases which we might cite would show.^ 1 Sioux City R. E. Co. v. Stout, 17 plaintiff and other boys, who were moTing Wall. (U. S.) 657, and Keefe v. Milwau^ ' the turn-table after the locomotive passed k^e, &e. R. E. Co., 21 Minn. 207 ; 18 Am. from it, that it was dangerous, but it does. Rep. 393. In Houston, &e. E. R. Co. v. appear that- the employe knew that they Simpson, 2 Tex. L. Eev. 167, a child ten were playing with the turn-table, and that years old recovered for an injury sustained he took no steps to fasten it-so that they while playing on the defendant's turn- could not use it. The turn-table had no table. The court said : " It appears that fastenings whatever, and though almost the turn-table was uninclosed, and near a constantly in use, there were times when pond to which boys were accustomed to go it was not in use, and besides it appears for the purpose of fishing. The entry that the boys were accustomed to use it at upon such a place was not a trespass in a times wheiji employes of the company were child which would deprive it of its right present. The plaintiff himself, it seems, to recover for an injury resulting from the had played upon the turn-table on former attempted use of a dangerous machine to occasions. Under such state of facts it which children would be attracted for was for the jury to determine whether the sport or pastime, for it is the duty pf plaintiff used such care as is required of every person to use due care to prevent one of his age." See also Nagle v. Mo. injuries to such persons, even from danger- Pac. R. R. Co., 75 Mo. 653 ; 42 Am. Eep. ous machinery upon the premises of the 418. In Cauley v. Pittsburgh, &c. E. R. owner, if its character be such as to at- Co., 95 Penn. St. 398, a recovery was tract children to it for amusement. The denied to a child seven years old injured evidence is conflicting as to whether or not by the defendant's negligence while play- an employe of the defendant warned tte ing on a flat-car standing on its track. SEO. 321.] CHILDBBN INJURED BY DANGEROUS AGENCIES. 148T Was the plaintiff guilty of contributory negligence? This ques- tion was fairly submitted to the jury, and they found against the de- fendant and iii favor of the plaintiff. The plaintiff was a boy a little over twelve years old, and from his own testimony, we should think was not a very bright boy, even for that age. He was bom in Ire- land, and his father was a common day-laboper. On the day on which the accident occurred, the boy went to hunt his father's cow, and found her near the turn-table, He then, with other boys of about his own age, w6nt to the turn-table. He had never before seen one. He had previously been warned to stay away from the railroad, and from the cars, hut had never leefi warned from the turn-table. There is some conflict in the evidence as to how he got on the turn-table, . and in what position he was when thereon, and when the accident occurred, whether sitting, standing, or otherwise, and whether he was told by any one of the boys not to get on at the time he did so ; but we must presume that the jury believed such only of the con- flicting evidence as was most favorable to the plaintiff. Now, take this boy, at his premature age, with his limited knowledge and ex- perience, and his lowly station in life, and probably it was intense amusement, almost irresistible, for him to ride upon a turn-table ; and probably he did not imagine that he was a trespasser, or in the slightest danger. Much of what we have said while discussing the defendant's negligence will apply here. Boys can seldom be ^aid to be negligent when they merely follow the irresistible impulses of their own natures — instincts common to all boys. In many cases where men, or boys approaching manhood, would be held to be neg- ligent, younger boys, and boys with less intelligence would not be. And the question of negligence is, in nearly all cases, one of fact for the jury, whether the person charged with negligence is of fuU age or not." ^ 1 Holding a contrary doctrine, see St. action by the child that the danger arose Louis, &o. E. R. Co. u. Bell, 81 111. 76; not from the character ■ of the work but 25 Am. Rep. 269 ; Kerr v. Forgue, from the machinery used, and acoord- 54 111. 482 ; 5 Am. Rep. 146 ; McAlpin ingly the defendant was not liable for the V. Powell, 70 N. Y. 126 ; 26 Am. Rep. negligence of its contractor ; and also, 561. In Wood v. Independent School that the machinery, although dangerous District of Mitchell, 44 Iowa, 27, a party when thus left unguarded, was not a nui- who had contracted with the defendant sance, being properly stationed for a legiti- for drilling & well in the schoolchouse mate purpose. After disposing of the first grounds, left his drilling-machine un- point the court said : ' ' This brings ua to locked and unguarded, and in his absence consider the only remaining ground upon one of the sohool'-ohildrsn was injured which appellant claims that the district is ^hile playing with ^i- It was held m an: liable, and that is, that the district owned, 1488 NEGLIGENCE. [chap. xvm. It will be observed that iu these cases the court went upon the ground that the dangerous agencies were left in a place to which occupied, and controlled the ground upon which said Pratt and Moses had introduced , the machinery, and the said district suf- fered it to remain there in its dangerous condition. In other words it is claimed that the district suffered a nuisance to re- main upon its ground, and that the in- jury sued for resulted therefrom." In Church of Ascension v. liuckhart, 3 Hill (F. Y.), 193, the walls of a church edifice helonging to the plaintiff in error were negligently permitted to stand after the - rest of the building had -been destroyed by fire, and a part of the wall afterwards fell upon a person while passing; and the defendant was held liable. In Bishop «. Union Bailroad Co., 14 E. I., while two horse-cars attached together in charge of a driver on the front platform of the leading car, and drawn by a single horse, were driving over the tracks of the com- pany in a public highway in the city of Providence from the stables to the repair 'shops,' a, lad' six years old, to outstrip a playmate with whom he was racing, > jumped on the rear platform of the leading car and soon afterward fell off or jumped off and was seriously injured. The lad's mother testified that he told her that he fell off, but in cross-examination when asked if he did not say that he was afraid the driver would see him and therefore jumped off, replied, " Yes, sir ; I think • probably he did, but am not. quite sure he told me he fell off." The driver testified that he did not see the boys and knew nothing of the accident, which occurred between two and .three p. m., until the evening. In an action against the horse- car company to recover damages for the in- jury, it was held that the company was not chargeable with negligence, and that the driver of the car was not chargeable with any neglect of duty. It was also held that the company was not bound to employ a second man to guard the cars from intrusion during their transit, nor was it under any duty or Obligation of care to the boy ; and that a city ordinance pro- viding that " oars driven iu the same di- rection shall not approach each other within a distance of three hundred feet except in case of accident, when it may he necessary to connect two cars together^ and also except at stations," applied only to cars going in the same direction and driven separately, and was inapplicable to the case at bar. The court in comment- ing upon the doctrine of the cases pre- viously cited, said: "In Mangam ■». Atterton, h, E. 1 Exoh. 239, the defend- ant left a dangerous machine, which might be set in motion by any passer-by, un- guarded, in a public place. . The plaintiff, a boy four years old, put his fingers in the machine at the direction of his brother, seven years old, whilst another boy was turning the handle which moved it, and his fingers were crushed. The court held that the plaintiff c6uld not maintain any action for the injury. And see Hughes v. Macfie, 2 , H. & C. 7ii. The case at bar differs very much from the three cases previously stated ; for in the case at bar the cars, instead of being left unattended, were in the charge of the driver who was in the act of driving them, so that there was nothing done to encourage the tres- pass, which was merely the result of a momentary impulse. Ordinarily a man who is using his property in a public place is not obliged to employ a special guard to protect it from the intrusion of children, merely because an intruding child may be injured by it. We have all seen a boy climb up behind a chaise ' or other vehicle for the purpose of stealing a ride, some- times incurring a good deal of risk. It has never been supposed that it is thfe duty of the owner of such vehicle to keep an outrider on purpose to drive such boys away, and that if he does not, he is liable to any boy who is injured while thus se- cretly stealing a ride. In such a case no duty of care is incun-ed. See Lygo v. Newbold, 9 Exch. 302 ; and the remark of Blaokbukn, J., in Austin v. Great Western Ey. Co., L. E. 2 Q. B. 442, iiS) and yet such a case is very much like the case ajt bar. There are som'e risks in re- gard to which a child ought to be enlight- ened before he is committed to the chances of the street. In Hestonville Passenger E. E. Co. 0. Connell, 88 Penn. St. 520, SEC. 321.J CHILDREN INJURED BV DANGEROUS AGENCIES. 1489 the company knew tHat children resorted, to play, and therefore that it was bound to guard against the dangerous consequences likely to ensue if these agencies were left unguarded or unfastenedi These cases have been made the subject of some severe criticism, but we are inclined to think that the doctrine finds support, both in principle and authority. A man's dominion over his own land is not entirely absolute, but is qualified by that time-honored maxim sic utere tuo ui alienum non Icedas; and it has been held, and the doctrine never denied, that a man may not set spring-guns, spears, or man-traps upon his land, so a,s to injure even a trespasser thereon ; ^ 82 Am. Eep. 472, the plaintitf, a boy be- tween six and seven years old, was injured in an attempt to climb upon the front I platform of a horse-railroafl car while the car was in moderate motion. The car was a car used for suburban travel, and ac- cording to custom was in the charge of no one but the driver, who at the time of the accident was engaged on the rear platform. The court held that the railway company was not liable for the injury, the injury having resulted, notv from any neglect of the person in cliarge, 'but from the sud- den and unanticipated act of the child it- self.' 'It may be assumed,' say the court, 'that a child 'old enough to be trusted to run at large has wit enough to avoid ordinary danger, and so persona who have business on the streets may reasonably conclude that such a one will not voluntarily thrust itself under the feet of their horses or .under the wheels of their. carnages,' and a fortiori may they conclude that they are not to provide against possi- ble damages that may result to the infant from its own wilful, trespass.' The doc- trine of this case is well supported by other cases. Moraissey v. Eastern E. E. Co., 126 Mass. 377 ; 30 Am. Rep. 686 ; Gavin v. City of Chicago, 97 111. 66 ; 87 Am. Eep. 99; McAlpin «. Powell, 70 N. Y. 126 ; 26 Am. Rep. 595 ; ^5 How. Pr. (N. Y.) 163 ; Snyder v. Han. & St. Jos. R. R. Co., 60 Mo. 413. These -are all cases of injuiy to intrusive or trespass- ing children, in which the defendants were held to be exempt from liability, al- though they might have prevented the injury ; because the kind of care which would have been required to prevent it was not obligatory upon them. And see Zoebiach v. Tarbell, 10 Allen (Mass.), 385. The case at bar is in our opinion a case of tha, same class. The defendant company is not liable for the injury to the plaintiif, because it never incurred any duty or ob- ligation of care to him. If the driver had seen the boy on the platfonn it might have been his duty, notwithstanding the boy was a mere intruder, to stop the car and put him safely off. If the driver had stopped the cars so as to afford the boy an inviting opportunity to get on them, thus tempting his childish instifiot, it might have been his duty to look through the cars before starting, and if he found the boy, to remove him. The case presents no such circumstances. We think therefore that on this point there was no evidence on which the case could have been properly left to the jury, and that if it had been left to them, and they had found for the plain- tiff, it would be our duty to set the ver- dict aside. Therefore the nonsuit was rightly granted." Brown v. European, &c. E. E. Co., 58 Me. 884. 1 Jordini). Crump, 8 M. &W. 787. In Whirley v. Whiteman, 1 Head (Tenn.), 610, the defendant owned a paper-mill, the machinery of which was propelled by steam. There was a shaft proceeding from the engine-house and extending through the wall of the miU-house. On the end of this shaft, some eight or ten inches outside of jihe wall, was ilxed a cog- wheel geared into another cog-wheel. The wheels revolved from ten to twenty inches from the ground. They were about twenty feet from the street, in an open space, en- tirely exposed, without any cover, guard. 1490 NBGLIGENOB. [chap. xvin. that he may not throw poisoned corn upon his land, which may be eaten by his neighbors' hens trespassing there ;i or keep a ferocious dog upon his premises, unchained, or so as to bite even a trespasser ^ without being liable for the injurious consequences. Indeed, numer- ous instances might be referred to in which this principle has been adopted. Again, railway companies do not hold their property by precisely. the same tenure as an individual does. They are quasi public corporations, and by a species of common consent which may be said to amount to a usage', people enter upon their tracks and grounds with nearly the same freedom that they do upon, public grounds, and without feeling that they are trespassers. While this may not be done as a strict matter of legal right, yet it is idle to say that, permitting such use, knowingly, and without objectioli, they nevertheless have the right to expose such q?iasi licensees to any species of danger they may choose to, particularly those not com- petent to judge of the danger, without incurring ..liability for the consequences. In a recent case in New York,^ the Court of Appeals acting upon this principle held that, where a railway company has for more than or enclosure. The wheels were generally in motion. Plaintiff and other children, were in the habit of playing about the mill. The plaintiff was about three years old, and lived with his mother, across the street and nearly opposite the mill. One day irhen the engineer and other hands were absent at dinner, Reaving the wheels running, the plaintiff was caught by the wheels and injured. The wheels might easily have been boxed or enclosed, so as t6 have avoided the danger of injury to any one. The jury found for the defend- ai)t, and the court set aside the verdict as contrary to evidence, saying : " "We feel clear from the facts proved in this record, that the defendants were guilty of negli- gence, perhaps it might be said, gross negligence, in leaving machinery so ex- posed as that by possibility it might be the cause of injury to others. ... In play- ing about the cog-wheels the plaintiff was but indulging the natural instinct of a child in yielding to the temptation into which he was led by the negligence of the defendant. These cases rest upon the principle that the law imposes restrictions upon every one, as well in the use and en- joyment of his property as in his personal actions and conduct, and that though a man may do a lawful thing, yet if any damage thereby befall another, he should be answerable if he might have avoided it." 1 Johnson v. Patterson, 14 Conn. 1. 2 Mann v. Reed, 4 Allen (Mass.), 431. 8 Barry v. N. Y. Central R. E. Co., 92 N. Y. 289 ; 44 Am. Rep. 377. But see Morgan v. Pennsylvania R. R. Co., 19 Blatchf. (IT. S. C. C. ) 239. In a recent English case, — Cl^rk v. Chambers, L. R. 8 Q. B. Div. 327, — the defendant had placed in a private road adjoining his ground a hurdle with cheveaux de frise on the top in order to prevent the public from looking over the barrier at athletic sports in his ground. Some one, not known, removed the hurdle to another spot without the defendant's authority, and the plaintiff, passing of right along the road soon afterward in the dark, and knowing the original position of the hur- , die but not that it was moved, ran his eye against the cheveavx de frise and lost his sight. The jury, in an action for negli- gence, held that the defendant's original SEC. 321.] CHlLDEEN INJUBED BY DANGEROUS AGENCIES. 1491 thii-ty years permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care to horse, and not the defendant, was liable. It was also contended that the bad man- agement of the plaintiff's shopman ha4 contributed to the accident. But TiNBAl, C. J., ruled that even if this were believed it would not avail as a defence. 'If,' he says, ' a man chooses to leave a cart stand' ing in the street he must take the risk of any inischief that maybe done.' Lynch i>. Nurdin, 1 Q. B. 29, is a still more striking case. There, as in the former case, the defendant's cart and horse had been left standing unattended in the street. The plaintiff, a child of seven years of age playing in the street with other boys, was getting into the cart when another boy madp the horse move on. The plaintiff was thrown down and the wheel of the cart went over his leg and fractured it, A well considered judgment was delivered by Lord Denman. He says : ' It is urged that the mischief was not produced by the mere negligence of the servant as asserted in the declaration, but at most, by that negligence in combination with two other active causes, — the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart, and so com- mitting a trespass on the defendant's chait? tel. On the former of these two causes no great stress was laid, and I do not appre>- hend that it can be necessary to dwell oa it at any length, for if I am guilty of neg- ligenpe in leaving anything dangerous where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, BJid if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.' And then, by way of illustration, the Chief Justice puts the case of a gamekeeper leaving a, loaded gun against ■ the wall of the playground where sohool-boys were at play, and one of the boys in play letting it off and wounding another. ' I think it will not be doubted,' aiya Lord Dbnman, ' that the gamekeeper must answer in damages to the woundetl party. This,' he adds, ' might possibly be erection of this hurdle was unauthorized and wrongful ; that the cheifeaux de /rise were dangerous to the safety of persons using the road, and that there was no contributory negligence. They gave the plaintiff a substantial verdict. It was held that the plaintiff's injury was not an im- probable consequence of the defendant's act; that it was the defendant's duty to take all necessary precautions, under the circumstances, to protect persons exercis- ing their right of way, and Uiat the action was maintainable.. Cockbuen, C. J., in delivering judgment, said: "The ground of defence in point pi law taken at the trial and on the argument on the rale was, that although if the injury had resulted from thesuse of the cheveaux-de-friae hur- dle, as placed by the defendant on the road, the defendant, on the facts as ad- mitted or as found by the jury, might have been liable, yet as the immediate cause of the accident was not the act of the defendant, but that of the person, who- ever he may have been, who removed the spiked hurdle from where the defendant . had fixed it, and placed it across the foot- way, the defendant could not be held lia- ble for an injury resulting from the act of another. On the part of the plaintiff it was contended that • as the act of the de- fendant in placing a dangerous- iustniment on the road had been the primaiy cause of the evil by affording the occasion for its being removed an(^ placed on the footpath and so causing the injury to the plaintiff, he was responsible in law for the conse- quences. Numerous authorities were cited in support of this position." The court then review Scott «. Shepherd, 3 Wils. 403; aw. Bl. 892,. the "squib" case; Dixon v. Bell, 5 M. & S. 198, the loaded-gun case; Ilott ». Wilkes, 3 B. & A. 304, the spring- gun case ; Jordin v. Crump, 8 M. & W. 782, the dog-spear ease, and continue : "In lUidge v. Goodwin, 5 C. & P. 190, the defendant's cart and hotse were left standing in the street without any one to attend to them. A person passing by whipped the horse, which caused it to back the cart against the plaintiff's window. It was urged that the man who whipped the 1492 NEGLIGENCE. [chap. XVIII. those so using the crossing. This doctrine was not put upon the ground that the public had acquired the right by long user, to cross assumed as clear in principle, but there is also the authority of the present Chief Jus- tice of the Common Pleas in its support in Illidge V. Goodwin.' It is unnecessary to follow the judgment in the consideration of the second part of the case, namely, whether the plaintiff, having contributed to the accident by getting into the cart, was prevented from recovering in the ac- tion, as no such question arises here. In Daniels v. Potter, 4 C. & P. 262, the de- fendants had a cellar opening to the street. The flap of the cellar had been set back while defendant's men were lowering coals into it, as the plaintiff contended, without proper care having been taken to secure it. The flap fell and injured the plaintifl'. The defendant maintained that the flap had been properly fastened, but also set up a defence that its fall had been caused by some children playing with it. But the only question left to the jury by TiN- DAL, C. J., was whether the defendant's men had used reasonable care to secure the flap. His direction implies that in that case only would the intervention of a third party causing the injury be a defence. The cases of Hughes v. Macfie, and Abbott V. Macfie, 2 H. & C. 744, — two actions arising out of the same circumstances and tried in the Passage Court at Liverpool, — though at variance with some of the fore- going so far as relates to the effect of the plaintiff's right to recover where his own act as a trespasser has contributed to the injury of which he complains, is in accord- ance with them as respects the defend- ant's liability for his own act where that is the primary cause, though the act of another may have led to the immediate result. The defendants had a cellar open- ing to the street. Their men had taken up the flap of the cellar for the purpose of lowering casks into it, and having reared it against the wall nearly upright, with its lower face, on which there were cross-bars, towards the street, had gone away. The plaintiff in one of the actions, a child of five years old, got upon the cross-bars of the flap and in jumping ofi" them brougtt down the flap on himself and another child (the plaintiff in the other action) and both were injured. It was held that while the plaintiff whose act had caused the flap to fall could not recover, the other plaintiff who had been injured could, provided he had not been playing with the other so far as to be a joint actor with him. Bird v. Holbrook, 4 Bing. 628, is another striking case, as there the plaintiff was undoubtedly a trespasser. The defendant being the owner of a garden which was at some dis- tance from his dwelling-house, and which was subject to depredations, bad set in it without notice a spring-gun for the protec- tion of his property. The plaintiff, who was not aware that a spring-gun was set in the garden, in order to catch a pea-fowl, the property of a neighbor, which had escaped into the garden, got over the wall, and his foot coming, in his pursuit of the bird, into contact with the wire which- communicated with the gun, the latter went off and injured him. It was held, though his own act had been the imme- diate cause of the gun going off", yet that the unlawful act of the defendant in set- ting it, rendered the latter liable for the consequences. In the course of the dis- cussion a similar case of Jay v. Whitfield was mentioned, tried before Richakds, 0. B., in which a plaintiff, who had tres- passed upon premises in order to cut a stick, and had been similarly injured, had recovered substantial damages, and no at- tempt had been made to disturb the ver- dict." The court then reviews Harrison V. Great Northern Railway Co., 3 H. & C. 231, and concludes as follows: "We ac- quiesce in the doctrine thus laid down as applicable to the circumstances of the par- ticular case ; but we doubt its applicabil- ity to the present, which appears to us to come within the principle of Scott i;. Shepherd, Dixon v. Bell, and other cases to which we have referred. At the same time it appears to ns that the case be- fore us will stand the test thus said to be the true one. For a man who unlaw- fully places an obstruction across either a public or private way may anticipate the removal of the obstruction by some one entitled to use the way as a thing likely to happen ; and if this should ha done, the SEC. 321.] CHILDEENT INJURED BY DANGEB0T7S AGENCIES. 1493 the railway at the point in question, but upon the principle that the acquiescence of the company in such use amounts to a license and permission to the public to cross there.^ In a recent ]S"orth Carolina probability is that the obstruction so re- moved will, instead of being carried away altogether, be placed somewhere near ; thus if the obstruction be to the carriage- way, it will very likely be placed, as was the case here, on the footpath. If the ob- struction be a dangerous one, wheresoever placed, it may,as was also the case here, be- come a source of danger, from which should injury to an innocent party occur, the Original author of the mischief should be held- responsible. Moreover, we are of opinion that If a person places a dangerous obstruction in a highway or in a private road, over which persons have a right of -way, he is bound to take all necessary pre- cautions to protect persons exercising their right of way, and that if he neglects to do so he is liable for the consequences. It is unnecessary to consider how the matter would have stood had the plaintiff been a trespasser. The case of Mangam v. Atter- ton, 4 H. & C. 388, L. E., 1 Ex. 239, was cited before us as a strong authority in favor of the defendant. The defendant had there exposed in a public market- place a machine for crushing oil-cake, with- out its being thrown out of gear, or the handle being fastened, or any person hav- ing the care of it ; the plaintiff, a boy four years of age, returning from school with his brother, a boy of seven, and some other boys, stopped at the machine. One of the boys began to turn the handle ; the plaintiff, at the suggestion of his brother, placed his hand on the cogs of the wheels, and the machine being set in motion, three of his fingers were crushed. It was held by the Court of Exchequer that the defendant was not liable ; first, because there was no negligence on the part of the defendant, or if there was such negUgenoe, it was too remote ; secondly, because the injury was caused by the act of the boy who turned the handle, and of the plain- tiff himself, who was a trespasser. With the latter ground of the decision we have in the present case nothing to do, other- wise we should have to consider whether it should prevail against the cases cited with which it is obviously in conflict. If the decision as to negligence is in conflict with our judgment in this case, we can only say we do not acquiesce in it. It ap- pears to us that a man who lea/ves in a public place along which persons, and among them children, have to pass, a dan- gerotcs machine which may be fatal to any one who. touches it, without any precaution ' against mischief, is not only guilty of neg- ligence, but of negligence of a very repre- hensible character, and not the less so be- cause the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful, act or negligence of the defendant has given oc- casion. But be this as it may, the case cannot govern the present. For the deci- sion proceeded expressly on the ground that there had been no default in the de- fendant ; here it cannot be disputed that the act of the defendant was unlawful. On the whole, we' are of opinion, both on principle and authority, that the plaintiff is entitled to our judgment." I In Coppner v. Penn. E, R. Co. 12 111. App. 600, the plaintiff, a child four or five years old, was injured by the closing of the defendant's Railway drawbridge while he was playing near or upon it. The court below directed a verdict for the de- fendant, but the appellate court held that the question of negligence should have been submitted to the jury. The bridge was a continuation of a public street, and the injury probably took place while the plaintiff was within the boun- daries of the street, but the court declined to put the decision on that ground, and observed : " But even if we are to regard »the locus in qu4} of the injury as being ' wholly upon the private, gi'ounds of the defendant, we think there was evidence which should have been submitted to the jury tending to charge the defendant with negligence. The'gen"6ral rule doubtless is, that the owner of private grounds is un- der no obligation to keep them in a safe con- dition for the benefit of trespassers, idlers, ' bare licensees, or others who come upon 1494 NEGLIGENCE. [chap. XVIII. case ^ a private way was opened by the defendant for his own con- venience, and a bridge built over a creek which ran across it, and the public used the same with his knowledge and permission. The plaintiff sustained injury by the breaking of the bridge, which the defendant knew to be unsafe, but which was apparently safe. It was held that the defendant was liable. But in all these cases the character of the dangerous agency must be such, and it must be in such a public or frequented place that the company are bound to know that it is liable to inflict injury unless proper care is used to prevent it, and that children or adults are ac- customed to go there.^ Thus, where a railroad company constructed them, not by invitation either express or im- plied, but for their own con venienoe or plea- sure, or to gratify their curiosity, however innocent or laudable their purpose may be. To this rule, however, there are various ex- ceptions, and one well recognized by the authorities is, where the owners of grounds are held liable for injuries to children, although trespassing at the time, where, from the peculiar nature and exposed posi- tion of the dangerous defect or agent, the owner should reasonably anticipate such injury to flow therefrom as actually hap- pened. In such cases it is held that the question of negligence is for the jury. See Union Stock Yards, &c. v, Bourke, 10 Brad. (111. ) 474. The distinguishing prin- ciple upon which all snch cases rest is, that the persons injured were mere chil- liren, without judgment or discretion, and likely to be di-avvn by childish curi- osity, or the instincts of childhood, into places of danger. In the present case, the jury should have been left to find from the evidence, whether the bridge in question was a dangerous structure, from which the defendant should reasonably have antici- pated such injury to happen as the plain- tiff actually suffered therefrom, and whether the servant of the defendant in. charge of said bridge, under all the facts and circumstances appearing in evidence, used ordinary and reasonable care and pre- caution to prevent the happening of such injury. The case of City of Chicago v. Gavin, 1 Brad. (111.) 302, decided by this court, and afterward by the Supreme Court, Gavin v. City of Chicago, 97 111. 66, 87 Am. Rep. 99, to which we are referred, does not, so far as we can see, conflict in the least with the view we have taken in this case. In that case there was no charge of negligence in operating the bridge, but merely in the manner in which it was constructed and maintained. The question was simply as to the measure of care required of a municipal corporation in the maintenance of its bridges ; and it was held to be its duty to keep and main- tain them in a reasonably safe condition, but not so as to render injuries to persons using them impossible. Here the defend- ant is a pi-ivate corporation charged with negligence in operating a bridge erected by it either on its own grounds or in the public highway, for its own convenience and benefit, and the question js, whether there is any evidence for the jury to con- sider, tending to support the charge of negligence." See Nagle v. Mo. Pacific E. Co., 75 Mo. 65.S ; 42 Am. Rep. 418. 1 Campbell v. Boyd, 88 N. C. 129 ; 43 Am. Rep. 740. ^ Daniels v. New York, &c. R. Co., 154 Mass. 349 (company not liable for failure to lock a tum-table located 606 feet from any highway); O'Connor u. Ill, Central E. Co. (La.), 10 So. Rep. 678 (children play- ing on dump cars in enclosed lot). From persons who leave dangerous openings, erec- tions, machines, or other things exposed in or directly adjacent to streets or other public places, a due measure of care is of course ex- acted. This was held in Lynch v. Nurdin, 1 Q. B. D. 29, where a horse and wagon were left unfastened and unattended in a public street, and a boy seven years old, climbed on the cart, other children started the horse and SEC. 321.] CHILDREN INJUEED BY DANGEEOUS AGENCIES. 1495 a certain switch-track, 6'67 feet in length, on its own land, near a small village, making the grade thereof 280 feet, at the rate of 80 feet to the mile, and afterwards for several years 'operated its railroad and switch-track, and then, in accordance with its nsual custom, placed a flat-car on the switch-track and grade, and properly fastened it with an ordinary handVbrake, and on the next d^ a small boy four years, eight months, and a few days old, went to the car without any right or authority so to do, and without the knowledge or con- sent of the railroad company, and not accompanied by any person, and Climbed upon the car and unfastened the brake, and the car then the toy was injured ; and also in Lane v. Atlantic Works, 107 Mass. 104, where the circumstances were quite similar, — 111 jd. 136, — and in MuUaney i'. Spenoe, 15 Ahb. Pr. (N. Y.) N. s. 319, where an elevator opened on the street by a sliding door, and the door heing left open and unguarded, a child four years and a half old, approached the opening and was injured by a descending car. So in Whirley v. Whiteman, 1 Head (Tenn.), 610, where a cog-wheel, connected with machinery in a mill, was left revolving, unguarded, and exposed' in an open, nnin- elosed, un^arded space, about twenty feet from the highway, and a child three years old, who lived across the street, was eaught and injured while playing, about the wheel. In Abbott v. Mofle, 2 H. & C. 744, where the defendant owned a ware- house, with a cellar in front, in a public street, opening with a flap or lid, raised and leaned against a wall, and a child five years old was hurt by -the falling down of the lid, he was held liable. But in Wood V. Independent School District, 44 Iowa, 27, it was held not negligent to leave a well- drilling machine unlodced and unguarded , in the yard of a public school-house, whereby one of the young investigators of science was injured, outside of the school "drill." The court said : "We are not prepared to hold that every person having upon his premises machinery, tools, or im- plements which would be dangerous play- things for children, and "in their nature affording special temptation to children to play with them, is under obligation to guard them, in order to protect himself from liability for injuries to children re- ceived while playing with them, although the children were rightfully on his prem- ises. It would be improper to burden the mechanical industries of the country by such a rule. Without holding, therefore, that thero may not be pieces of machinery BO peculiarly dangerous that a right of action TTould exist at common law for in- juries received from them if left un- guarded, we do not think thg drilling-ma- ehine in question is such machinery," In Mangam v. Atterton, L. R. 1 Ex. 239, where the defendant had left exposed, un- guarded, and in gear, iu a public market- place, a machine for crushing oil-cake,, and a boy four years old, advised by his brother of seven, put his fingers in the gearing while others turned the crank, and was injured. Stress was laid on the fact that the immediate cause of the injury was the act of the others in taming the crank. Bramwell, B., said : "The defendant is no more liable than if he had exposed goods colored Tifith a poisonous paint, and the child had sucked them." He even sug- gests that if the child's fingers had injured the machine he would have been liable to the owner. The decision on the ground of negligence is criticised by Cockburn, C. J., in Clark v. Chambers, 3 Q. B. Div. 327. He says : "It appears to us that a man who leaves in a public place, along which persons, and among them childreni have to pass, a dangerous machine, which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible charac- ter." But.if a child has'been warned not to meddle with the dangerous thing in question, he meddles at his peril. Hughes V. Mcfie, 2 H. & C. 744. 1496 NBGLIGBNCB. [CHAP, xyiii. by its own weight moved down the grade, and the boy either jumped off or fell off in front of the car, ancf was run over and killed, — it was held that the company was not guilty of any culpable negligence as towards the boy, nor liable for damages on account of his death.^ In this case the accident which occurred was one which could not have been anticipated, and the company* having properly fastened the brakes had done all that could be required of it. Said the court : "The cars were not dangerous machines left exposed near a populous city, nor were they of that alluring character to entice boys to play upon them, for when unfastened thejr would move only a few feet 1 Central Branch U. P. B. E. -Co., v. tion of its danger. But so far as it was Henigh, 23 Kan. 347. In Gillespie v. MoGowan, 100 Penn. St. 144, 45 Am. Eep. 365, the defendant owned an aban- doned hriekyard with an open and /un- guarded well in it, in plain sight, about one hundred feet from the highway. The public were accustomed to cross the field, but the paths were somewhat distant from the well. The nearest dwelling-house was three hundred yards off. A boy eight yeara old was found drowned in the well. He fell in by daylight. The Common Pleas sustained a verdict for the plaintiff, but it was reversed by the Supreme Court. In Hydraulic Works Co. v. Orr, 83 Penn. St. 332, a child six years old strayed from a street through a gate marked " private " and " no admittance," but sometimes left intended to sanction the doctrine that a child cannot be treated as a, trespasser or wrong-doer, it is explicitly oveiTuled by Gillespie v. McGowan, 100 Penn. St. 144. The latter case also dissents from the doctrine laid down in the former case, that " the owner of premises in the neighborhood of a populous city, and opening on a public highway, must so use them as to protect those who stray upon them and are accidentally injured." Such a doctrine was regarded as being in con- flict with Gramlich v. Wurst, 86 Penn. St. 74, 27 Am. Rep. 684, in which it was held that " where the owner of land, in the exercise of lawful dominion over it, makes an excavation thereon, which is such a distance from the public highway open, into a private alley, and was there that the person falling into it would be a killed by the falling down upon it of a movable platform used in shipping goods. The court instructed the jury that "a child caupot be treated as a trespasser or wrong-doer';" and that " persons who hold premises opening on public thoroughfares must nse them in such a way as to protect those who might accidentally stray upon them." This instruction was affirmed. But this case is distinguished by the court from the Gillespie case on the ground that the defendant " maintained upon its premises what this court designated as d dcmgerona and deadly trap, weighing over eight hundred pounds, and liable to fall at any moment and ' crush children beneath it like mice in a dead falL' It was in the heart of the city, close to a public highway, and the access to it tte- quently left open ; and it was moreover so constructed as not to give any indica- trespasser upon the land before reaching it, the owner is not liable for an injury thus sustained." In that case the defend- ant had made an excavation within eighty feet of a street in Philadelphia, and it was unguarded ; but the court held the owner was not liable. The well established prin- ciple in such cases is that " where an exca- vation is made adjoining a public way, so that a person walking on it might, by making a false step or being affected with sudden giddiness, fall into it, it is reason- able that the person making such excava- tion should be liable for the consequences. But when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to be different." The same" doctrine was asserted in Knight v. Abert, 6 Penn. St. 472. SEC. 322.] IMPUTABLE NEGLIGENCE, ETC. 1497 and then stop. Nor were they dangerous when moving, to ordinary boys. No one could have anticipated that a boy less than five years old would "^have gone to the cars unaccompanied by any older person, and have climbed upon one of them and unloosened the brake. No such thing ever occurred before, and certainly no one could have anticipated that a boy big enough to do that would have fallen off or jumped off in front of the car so that the car would have run over and killed him." The same principle would apply in a recent Pennsylvania case ^ in which a boy five or six years old, while standing upon the platform of a station, was hit by a projection from a passing train and injured. He was there from curiosity and not upon business, and the court held that he could not recover. But in this case the court based its doctrine upon the broad ground that the company owed the plaintiff no duty to look out for his safety .^ A similar doctrine was held in Indiana, as to an adult who was at one of the defendant's old freight- stations, without invitation, and, injured.^ Sec. 322. imputable ITegligence : Parent and Child : Children Generally. — The doctrine of the imputable negligence of a parent, guardian, or other custodian of a child whereby the injured child is made chargeable with the negligence of its custodian, is based upon the assumption of the identification of the child and its custodian at the moment of the occurrence of the injury. The child not being sui juris is intrusted to another to whom its care is exclusively con- fided ; this custodian is its keeper and agent, and in respect to all outside parties, it is contended, his negligence in the ,care of the 1 Baltimore, &c. R. Co. v. Schwindling, the edge of the platform, with no other 101 Penn. St. 261 ; 12 W. N. Cas. 349. purpose or motive than his' own personal 2 Green, J., said ; " At the time the enjoyment. His elder -brother, his prin- plaintiff received his injury he was stand- cipkl witness, testified that he told him to" ing on the platform of the defendant, so come hack from where he was standing, close to its edge that, according to the hut he refused to do so. A passing car theory upon which the case was tried for moving at a very slow rate of speed, not the plaintiff, he was struck by a slight exceeding three or four miles an hour, with projection from the side of a passing freight- an iron step projecting' but a few inches car. He was not a passenger, he had no from the side of the car (as alleged by the business of any kind with the defendant, plaintiff,'though denied by the defendant), or any of its agents or employes ; in fact struck him and pulled him from the plat- he was a boy five or six years of age, amus- form under the wheels of the car, so that ing himself looking at the moving train, he was run over and injured. In these He was not Invited upon the platform by circumstances was there any right of any agent of the defendant, and he was recovery ? We think clearly not." not engaged in the act of crossing either the ' Lary v. Cleveland, &c. E. Go, 78 track or the platform at the time of the Ind. 323 ; 41 Am. Rep. 572. accident. He was simply loitering upon VOL. II. — 44 1498 NEGLIGENCE. [chap. XVIII. child must be deemed that of the child itself. In the leading case on this subject, Hartfield v. Eoper,^ the child, an infant of two years, had been allowed to wander on to the public road at a time when the ground was covered with snow, and while standing alone in the road was run over by defendant in a sleigh. The court held that while the child was too young to be capable of exercising care, it was chargeable with the negligence of its parent in allowing it to stray to such a place of danger, and that there could be no recovery. The doctrine announced in this case has been followed in some jurisdic- tions,^ but the modem tendency is to reject it, and to hold the negli- gent injurer liable for the consequences of his own wrongful act regardless of the contributory negligence of the child's parent or custodian.? And it seems that this te;ndency is more in consonance 1 21 Wend. (N. Y.) 615 •, 34 Am. Deo. 273. The court went on to aay : " It is a mistake to suppose that because the party injured is incapable of personal discretion, he is therefore above all law. An infant or lunatic is liable personally for wrongs which he commits against the person and property of others. Bullock v. Babcock, 8 Wend. (N. Y.) 394. And when he complains of wrongs to himself, the de- fendant has a right to insist that he should not have been the heedless instrument of his own injury. He cannot, more than any other, make a profit of his own wrong. If his proper agent and guardian has suf- fered him to incur mischief, it is much more fit that he should look "for redress to that guardian, than that the latter should negligently allow his ward to be in the way of travellers, and then harass them in courts of justice, recovering heavy verdicts for his own misconduct." See also Munger v. Tonawanda R. Co., 4 N. Y. 349 J Bulger v. Albany K. Co., 42 N. Y. 469 i Thurber v. Harlem, &o. E. Co., 60 N. Y. 326 ; D'ovyling v. New York Cent. R. Co., 90 IS. Y. 678; Wil- lets V. Buffalo, &c. R. Co., 14 Barb. (N. Y.) 585; Dudley v. Westoott, 18 N. Y. Supp. 130, reversing 15 N. Y. Supp. 952. See also Weil v. Dry Dock, &c. R. Co., 119 N. Y. 147 (question of parent's contributory negligence left to the jury). ^ Schierhold v. North, Spc. R, Co,, 40 Oal, 447; Meeks v. Southern, &o. R. Co., 52 Cal. 604 ; 56 Cal. 513; 88 Am. Rep. 67; The Burgundia, 29 Fed. Rep. 464; Kyne ii. Wilmington, &c. R. Co. /Del- 1888), 14 Atl. Rep. 922 (child of tender years driving with her father) ; Kay v. Penn. R. Co , 65 Penn.^t. 209; 8 Am. Rep. 628 ; Mulherin v. Delaware, &c. R. Co., 82 Penn. St. 366 ; Philadelphia, &o. B, Co V Hummell, 8 Wright (Penn.) 278. * Government St. Ry. Co. v. Hanlon, 63 Ala. 71; Bay Shore, &c. R. Co. v. Harris, 67 Ala. 6; Birge v. Gardner, 19 Conn. 507 ; 50 Am. Dec. 251 ; Daley v. Norwich, &c. R. Co., 26 Conn. 593; 68 Am. Dee. 413 ; Bronson c Soathbury, 37 Conn. 199 ; Ferguson v. Columbus, &c. R. Co., 77 Ga. 102 (mother not negli- gent in allowing child to go near a turn- table) ; Chicago City B. Co, v. Wilcox (111. 1890), 24 N. E. Rep. 419 ; affirming 33 111. App. 450 (parents not negligent in allowing child to stray beyond their con- trol, when it was run over by street- car); Cycago, &o. B. Co. V. Ryan, 31 III. App. «21 ; 131 IlL 474 ; Lake Erie, &o. R. Co. V. Pike, 31 111. App. 90; Wymore v. Mahaska Co., 78 Iowa, 396 ; Waterfield v. Lewie, 43 La. An. 63 ; Battia- hill V. Humphrey, 64 Mich. 494 ; 28 Am. &Eng. E. Caa. 597; 57 Am. Bep. 474, n. ; Shippy 1), Village of Au Sable, 85 Mich. 280 ; 48 N. W. Rep. 584; Louisville, &c. R. Co. V. Hirsoh, 69 Miss. 126; West- brook V. Mobile, Ac. B. Co., 66 Miss. 560; Boland a. Missouri B. Co., 36 Mo. 491; Frick V. St. Louis, &o. R. Co., 75 Mo. 542, 695; 8 Am. & Eng. B. Caa. 280; Winters v. Kansas City Cable R. Co., 99 Mo. 509 (parent not negligent iu intrust- SEC. 322.] IMPUTABLl NBGUeENCE, ETC. 1499 with principle. The incapacity of children is not a doubtful matter like that of a,lunatic or blind, deaf, or infirm person, and the engineer, motorman, or driver on seeing a child on the track ahead is bound to recognize the necessity of great care and the probability that the child will not or cannot protect itself, and ought to be held liable for a failure to use such care, instead of escaping by setting up the negligence of a parent in allowing the child to be in a place of danger.^ Some authorities very properly limit the operation of the rule to oases where the parent or custodian is actually present, and directing and controlling the action of the child, and this seems to be the utmost limit to which the doctrine, doubtful at best, should be ex- tended.* Therefore it is held that the fact that the parent merely ing three year old child to ten year old sister, nor could negligence of such sister he imputed to the child) ; Huff v. Ames, 16 Neb. 139 ; 48 Am. Eep. 716 ; Bisaillon V. Blood, 64 N. H. 565 ; Newman v. Phillipsburg Horse E. Co., 52 ST. J.L. 446; 19 Atl. Rep. 1]02; Bellefontain, &c. R. Co. V. Snyder, 18 Ohio St. 400 ; Cleve- land, &c. R. Co. V. Manaon, 30 Ohio St. 451 ! Whirley v. ^hiteman, 1 Head. (Tenn.) 610 ; Galveston, &c. R. Co. v. Moore, 59 Tex. 64 ; 46 Am. Eep. 265 ; Norfolk, &c. E. Co. v. Groseolose, 88 Va. 267 ; 13 S. E. Eep. 454; Eobinaon v. Cone, 22 ^Vt. 213. See nlso on this general qnestion. Smith v. Atchison, &c. E. Co., 25 Kan. 738; Wright i'. Maiden, &c. E. Co., 4 Allen (Mass.), 283; Pittsburgh, &c. R. Co. Pearson, 72 Penn. St. 169 ; Pitts, burgh, &c. R. Co. v. Bumstead, 48 111. 221; Fallon v. Central Park, &c. E. Co., 64 N. Y. 13; Morgan v. Brooklyn E. Co., 38 N. Y. 458; Prendergast v. New York, &c. E. Co., 58 N. Y. 652; Toledo, &c. E. Co. t>. Grabble, 88 111. 441 ; Ewen v. Chi- cago, &c. R. Co., 38 Wis. 613; Pittsburgh, &c. R. Co. V. Vining, 27 Ind. 612; Evans- ville, &o. E. Co. V. Wolf, 59 Ind. 89. ' ' ' The reason lies in the irresponsi- bility of the child, who, itself being in- capable of negligence, cannot authorize it in another. It is not correct to say that the parent is the agent of the child, for the child cannot appoint an agent. The law confides the care and eustody of a child non sui juris to the parent, but if this duty be not performed, the fault is the parent's, not the child's. There is no principle, then, in our opinion, upon which the fault of the parent can be imputed to the child. , To do so is to deny to the child the protection of the law. Whart- on Neg., § 312; Patterson's Ry. Ace; Law, 93." Lewis, P. J., in Norfolk, &c. R. Co. V. Groseclose, 88 Va. 270. See a,lso Newman v. Phillipsburg Horse E. Co., 52 N. J. L. 448 (opinion of Beasley, C. J . ) ; Wyniore v. Mahaska Co., 78 Iowa, 396 ; 2 Thomp. on Trials, § 1687. * This seems to be the English doctrine, Waite V. Northeastern R. Co., 1 E. B. & E. 719 ; 96 E. C. L. 719. See Galveston &c. E. Co. V. Moore, 59 Tex. 64; 46 Am. . Eep. 265; I Tex. L. Rev. 145; Stillson v. Hannibal, &e. R. Co., 67 Mo. 671. " If the parent is personally present, controlling the movements of the child, the parent's taegligenee will defeat an action for an injury to the child in like manner as if he had suffered the injury himself. Pierce on Railroads, 338." Hous- ton V. Vickshurgh, &c. E. Co., 39 La. An. 796; 34 Am. & Eng. R. Caa. 80. In Galveston, &e. E. Co. v. Moore, 59 Tex. 64; 46 Am. Eep. 265, the court had to say: "The basis of all obligation to compensate for an injury resulting to n. child of tender age not capable of con- tracting arises from a breach of duty. In case of a parent the duty of protecting the child from injury is a legal one, which ordinarily finds sufficient promptings in parental affection to induce its full per- formance. The parent is under a legal 1500 NEGLIGENCE. [chap, xviii. allowed the child to stray to a^ place of danger is nob a bar to_ obligation to educate and maintain the child, and it has no legal claim upon others to perform that duty; but the obligation to do no act which will result in injury to a child rests upon all persons and corpora- tions as Well as upon the parent, and in this respect it does not differ even in de- gree." See also Lynch v. Smith, 104 Mass. 52; 6 Am. Rep. 188 ; Ihl v. Forty- second St. E. Co., 47 N. Y. 317,; 7 Am. Rep. 450 ; Kay v. Penn. R. Co., 65 Penn. St. 209; 3 Am. Re^. 628. In Pennsyl- vania, it is held that parents who permit their children to trespass upon the prop- erty of a railroad company are guilty of negligence ; and where a child of tender years who is allowed to wander upon rail- road property is injured, the company owes no duty to the child nor to the parent, and is not liable to either for the injury. In Philadelphia, &c. E. Co. o. Hummel, 8 Wright, 378, it is said that children " cannot be upon the railroad without a culpable violation of duty by their parents or guardians." In Smith v. Hestonville, &c. E. Co., 92 Penn. St. 450; 37 Am. Rep. 705, the plaintiff permitted her son, a child of seven years, to go about the cars and upon the tracks of a street railroad, and supply the drivers and conductors of the railroad company with .water for reward. It was held that this was negligence -per se on the part of the parent which would preclude her from recovering for the death of the child through the negligence of the company. In Smith v. O'Connor, 62 Penn. St. 218, it is said: " In such a case it may be that the father should be treated as a con- current wrong-doer. The evidence may reveal him such. His own fault may have contributed as much to the injury of the child and consequently to the loss of ser- vices due him, as did the fault of the de- fendant. He owes to the child protection. It is bis duty to shield it from danger, and his duty is the greater the more helpless and indiscreet the child is. If by his own carelessness, his neglect of the duty of protection, he contributes to his own loss of the child's services, he may be said to be in pari delicto with a negligent defend- ant." These remarks were pertinent to the point decided in Glassey v. Railroad Col, 67 Penn St. 172, that a father cannot • recover for an injury to his infant son, which was partly caused by his own im- prudent act in failure to perform his pa- ternal duty, and it makes no difference whether the injury of which he complains was to his absolute or relative rights. Referring to that case the court said it very properly settled " that if the parents permit a child of tender years to run at large without a protector in a city traversed constantly by cars and other vehicles, tliey fail in the performance of their duties, and are guilty of such negligence as precludes them from a recoveiy of damages for any injury resulting therefrom. If the case is barely such, the negligence is a conclusion of law, and ought not to be submitted to the determination of the jurf ." Railway Co. V. Pear.son, 52 Penn. St. 169. The principle was repeated in Railway Co. v. Long, 75 Penn. St. 267, where it was said : " To suffer a child to wander on the' street has the sense of permit. If such permission or sufferance exist, it is negli- gence." Where an action is brought by a parent for an injury to a child, contributory negligence of the parent is available in defence, but not when the child is the plaintiff. Penn. R. Co. v. Jones, 81J Penn. St. 194 ; Smith v. Hestonville, &c. R. Co., 92 Penn. St. 450 ; 37 Am. Rep. 705. It is proper on the question of due care on the part of a child, to show that he was seen on the track prior to the in- jury, and warned that it was dangerous to stay there. Fitzpatriek v. Fitchburg R. Co., 128 Mass. 13. Putting a young child — in one case less than five years old — upon " train without anything to pay his fare, and without any attendant, is such contributory negligence on the part of the parents as would prevent any recovery for an injury received by it in gettingoff the train. Atchison, &c. R. Co. V. Flinn, 24 Kan. 627. See also Chicago, &c. R. Co. V. Schumilowsky, 8 111. App. 613, where it was held that a mother who left a child only two years old with its uncle, and it strayed off on to the railroad track and was killed, was guilty of such contrib- utory negligence as to prevent a recovery. SEC. 322.] IMPUTABLE NEGLIGENCE, ETC. 1501 recovery by the child for injuries inflicted through the defendant's negligence.^ The question as to imputable negligence cannot a,rise where the child . though non sui juris has not been guilty of a want of ordinary care, but has exercised reasonable care to protect itself,^ or where the de- fendant, by the exercise of ordinary care, miight have prevented the injury in spite of the contributory negligence of the child.^ And as a matter of course there is no room for the question to arise where the child, though possibly of tender years, is old enough to know how to protect itself.* In such cases the question becomes one of fact as to whether or not the party injured was negligent, or whether defefid- ant exercised the proper care to prevent the injury, and is for the determination of the jury.^ Some of the cases make a distinction between actions by the injured child, and those in which the parent sues for the loss of the child, holding that in the latter case only will the contributory neg- ligence of the parent bar recovery.® But, in Louisiana, it is held that where the death of a child is caused by the negligence of a wrong- doer, the contributory negligence of its parents is not to be imputed to it, and is no defence to the right of action for the damages to tJie 1 Ferguson v. Columbus, &c. R. Co., ^ Ehrman w. Brooklyn City E. Co., 14 77 Ga. 102 ; Chicago City R. Co. v. Wil- N. Y. Supp. 336 ; 60 Hun (N. Y.), 580 ; cox (111. 1890), 24 N. E. Eep. 419, af- Reilly v. Hannibal, &o., R Co., 94 Mo. firming 33 111. App. 450. 600 ; 34 Am. & Eng. E. Cas. 86 ; Payne 2 Chicago City R. Co. K. Robinson, 127 v. Huraeston, &c. R. Co., 70 Iowa, 584 111. 1, affirming 27 111. App. 26. (negligence of parent left to jury). ' Chicago, &c. R. Co. v. Rj'an, 131 ^ In an action by a parent for the 111. 474 ; 31 111. App. 621 ; Baltimore, death of his daughter, it appeared that he &c. R. Co. I'. McDonnell, 43 Md. 634 ; knew of the dangerous character of the Davies v. Mann, 10 M. & W. 546. In crossing where the child was killed, but Meeks v. Southern Pac. R. Co., 56 Cal. that he sent her on her way to it a short 513 i 38 Am. Rep. 67, a child of six or time before the accident. It was held im- seven years, being insensible or asleep on proper and a prejudicial error to refuse an the track near a highway crossing, was run instruction that plaintiff must himself over by a train and injured. He was seen have exercised ordinary care, and this by the engineer and fireman in time to error was not cured by an instruction for stop, but they supposed him to be a bunch the defence that the jury must find plain- of weeds until it was too late. No warn- tiff free from negligence in order to give ing signal was given ; his parents had for- him a, verdict. Chicago, &c. R. Co. v. bidden him to go on the track. It was Mason, 27 111. App. 450. And in the held that a recovery might be had. case of Mobile & Ohio R. Co. v. Watley, * Lynch v. Smith, 104 Mass. 52 ; 6 69 Miss. 145, a similar doctrine seems to Am. Bep. 188 ; McMahon ». New York, have been applied and a father's negli- &c. R. Co., 33 N. Y. 642 ; Oakland R. gence in allowing his child to wander on Co. V. Fielding, 48 Penn. St. 320 ; Wash- the track was considered » bar to any ington, &c. R. Co. v. Gladman, 15 Wall, action by the father. (U. S.) 401. 1502 NEGLIGENCE. [CHAP. XVIII, eUld which right of action, under the statute, passes to the parents by inheritance.^ Sec. 322 a. imputable Negligence in Case of Passenger and Car- lier. — In the now famous case of Thorogood v. Bryan,^ a passenger in an. omnibus, himself free from negligence, was injured by the con- current negligence of his driver and the driver of another omnibus. The court held that he colild not maintain an action against the driver or owner of the second omnibus, as the contributory negli- gence of his own driver must be imputed to him and would bar his recovery. He was considered as standing in the position of a master, responsible for and bound by the acts of his driver as though he were his servant. And this view has received some recognition in the American courts. Thus, in Wisconsin, it is held that where one accepts an invitation to ride in a private vehicle, the contributory negligence of the driver with whom he rides must be imputed to him, and will bar his recovery in case he is injured through the concur- rent negligence of such driver and a third party. And the same view is taken in Iowa.' But in Pennsylvania the rule of the cases his wife and children in his own vehicle, he is surely their agent in driving them, to charge them with his negligence. It is difficult to perceive on what principle he is less the agent of one who accepts his or their invitation to ride with them. There is a personal trust in such eases which im- plies an agency. So several persons, vol- untarily associating themselves to travel together in one conveyance, not only put a personal trust in the skill and care of that one of ihem whom they trust with the direction and control of the convey- ance, but appear to put a personal trust each in the discretion of each against negligence affecting the common safety. [Beck V. East River Ferry Co., 6 Robt. (N. Y. ) 82.] One enters a public con- veyance, in some sort, of moral necessity. One generally enters a private conveyance of free choice, voluntarily trusting to its sufficiency and safety." Haufe v. Fulton, 29 Wis. 296 ; 9 Am. Rep. 568 ; 34 Wis. 608; 17 Am. Rep. 463; ArtzD. Chicago,&0. R. Co., 34 Iowa, 153 ; Payne v. Chicago, &c. Co., 89 Iowa, 623 ; Slater v. Buriing- ton, &o. Co., 71 Iowa, 209. The same rnle was applied in Nichols ». Great West- ern fiy. Co., 27 U. 0. Q. B. 382. » Westerfield v. Levis, 43 La. An. 63. ■ 2 Thorogood v. Bryan, 8 C. B. 115 ; 65 E. C. L. 115 ; Thompson on Carr. 273 ; Armstrong v, Lancashire, &c. B. Co., L. R. 10 Exch. 47 ; Jones v. Liverpool, 14 Q. B Div. 890. See the opinion of the Justices in the first case reviewed in Little n. Hackett, 116 IT. S. 373-374. ' Prideaux v. City of Mineral Point, it Wis. 513 ; 28'Am. Rep. 560. The action in this case was by a husband and wife for injury to the latter, caused by a defective street. At the time of the injury she was riding by invitation in a private vehicle driven by a third person, whose negligence dontribilted to cause the injury. The court in holding that her action was barred by the contributory negligence of the driver went on to say: "One Voluntarily in a private conveyance, voluntarily intrusts his personal safety in the conveyance to the person in control of it. Voluntary en- trance into a private conveyance adopts the conveyance for the time being as one's own, and a.«sumes the risk of the skill and care of the person guiding it. Pro hac vice, the master of a private yacht or the driver of a private carriage is accepted as agent by eveiy person voluntarily committing himself to it. When pater familias drives sEd. 322 a.] imputable negligSncb, etc. 1603 jiist stated has been repudiated in a case iuvolvibg. Very similar circUihsfaticeis,^ though the rule of Thorogood ly. Bryan was, until very receitttly, applied in the case of public carriers.^ There are other cases sustaining the view that the contributory negligence of a husband, driving a private vehicle, is a bar to recovery by his wife for injuries sustained by her through the negligence of a third party while she tvas in the Vehicle with her husband.® Still other Amer- ican cases apply the doctrine of the English ease to a greater or less extent.* But in a recent and well considered case in the Federal Supreme Court the doctrine of Thorogood v. Bryan has beenj repudiated entirely. It appeared that the plaintiff in the case had hired a pub- lic hack, and that he gave the driver directions as to where he wished to be carried, but exercised no other control over the driver's conduct. In the course of the jouciiey, owing to the concurrent negligence of the traifl Operatives and of the driver, a train ran into the vehicle 1 Carlisle v. SiLsbane, 113 Penn. St. 544 ; 57 Am. Rep. 483. '^ Lookhard v. Lichtenthaler, 46 Penn. St. 151 ; i'hiladelpliia, &c. R. Co. ». Boyer, 97 Penn. St. 91 ; 2 Am. & Eng. R. Cas. 172. These cases, upholding Tliorogood v. Bryan, have been overruled in Sunting v. Hogsett, 139 Penn. St. 363 ; 27 W. IS. C. 317 ; 21 Atl. Rep. 31. So that in Penn- sylvania the entire doctrine is repudiated. » Carlisle ». Sheldon, 38 ft. 440 ; Huntoon v. Trumbull, 2 McCrary (U. S.), 314 J GvXli &e. R. Co. v. Greenlee, 62 Tex. 344; 23 Am & Eng. R. Cas. 322. Centra, Louisville, &c. R. Co. v. Creek (Ind.), 29 N. E. Rep. 481. By §§ 162-164, 169, of Civil Code of Califor- nia damages recovered for personal injuries to a wife are made community property of which the husband has control (§ 172). in an action by wife, held that the hus- band was a necessary party, and that his contributory negligence would bar recov- ery. McFadden v Santa Anna, &c. R. Co., 87 Cal. 464. See Shaw v. Craft, 37 Fed. Rep. 317 (husband's contributory negligence does not bar action by admin- istrator of wife for damages for her death). * In the case of Lalce Shore, &o. R. Co. V. Miller, 25 Mich. 274, it appeared ttat a female serva;nt was riding with her master in a wagon which was wrecked by a rail- road train. The master was guilty of con- tributory negligence notwithstanding the warnings of his servant against iti It was held in an action by the servant for injiiries sustaitied fha;t the negligence of her master Would bar her recovery. In Kyne v. Wilmington, &c. R. Co. (Del. I888i, 14 Atl. Rep. 922, it was held that a child of tender years, riding with her, father, cannot recover for injuries sus- tained in consequence of a defect in the highway if her father in driviiig was iiegligent. In the case of Toledcr, &c. K. Co. v. Miller, 76 111. 27g, the parents of a boy of nine years intrusted him to a neighbor, and the two latter, in the neighbor's wagon, while crossing a railroad track, were struck by a passing train, going at its ordinary speed, and the boy killed. The evidence showed that the train was in plain view for a considerable distance before reaching the crossing, and that a bell was Ihung as required by law. The court held that the parents had no right of action for the death of their son on the ground thst no negligence on the part of the company was shoWiJ, and that the con- tributory negligence of the neighbor in charge of the child was a bar. See a sim- ilar doctrine applied in Payne v. Chicago, &c. R. Co., 39 Iowa, 523 ; Elkins v. Bos- ton, &c. R. Co., 115 Mass. 190 ; Robinson V. New York, &,a. R. Co., 66 N. Y. 11. 1504 NEGLIGBN-CB. [chap. XVIII. causing plaintiff to sustain severe injuries. _ The court held that the driver's contributory negligence was no bar to plaintiffs right of action against the railroad company, and Mr. Justice Field, speaking for the court, laid down the better doctrine in a lengthy and able opinion.! This case, taken in connection with the distinct repudia- tion of Thorogood v. Bryan in a recent English case,^ and in a large number of, the various State courts,^ seems to indicate an entire 1 Little y. Hackett, 116 U. S. 370. The court said : "Cases cited from the English courts, and numerous others decided in this country, show that the relation of master and servant does not exist between the passenger and the driver, or "between the passenger and the owner. In the ab- sence of this relation, the imputation of their negligence to the passenger where no fault of omission or commission is charge- ' able to him is against all legal rules. If their negligence could be imputed to hiro, it would render him equally with them responsible to third parties thereby in- jured, and would also preclude him from maintaining an action against the owner for injuries received by reason of it. But neither of these conclusions can be main- tained ; neither has the support of any adjudged cases entitled to consideration. The truth is, the decision in Thorogood v. Bryan rests upon indefensible ground. The identification of the passenger with the negligent driver or the owner, without his personal co-operation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public convey- ance is a carrier, and the driver or the per- son managing it is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is con- tradicted by the daily experience of the world." See this case approved and fol- lowed in Missouri Pao. E. Co. v. Texas Pac. R. Co., 41 Fed. Eep. 316. See also Gray v. Philadelphia, &c. R. Co., 28 Blatchf. (U. S) 262. In the case of Grif- fith V. Baltimore, &o. B. Co., 44 Fed. Kep. 574, the plaintiff, a young girl, was in a carriage with her mother, who was driving, when the accident (at a railway crossing) occurred. It was held that while the negligence of the mother could not be ■imputed to the girl, yet it was as much the duty of the latter to suggest the necessary precautions, and to protest if they were not taken, as it was the mother's duty to take them. 8. p. Brannen v. Eokomo, &c. E. Co., 115 Ind. 115 ; 17 N. E. Eep. 202. 2 The Bernina, 12 Prob. Div. 58, also reported in 57 Am. Eep. 494, n. The court said . "We are of the opinion that the proposition maintained in Thorogood v. Bryan is essentially unjust, and essen- tially inconsistent with other well recog- nized propositions of law." See also The Milan, 1 Lush. 388, 403 ; Tuff v. War- man, 5 C. B. N. s. 678 ; 94 E. 0. L. 573. 8 Elyton Land Co. v. Mingea, 89 Ala. 521 ; 7 So. Eep. 666 (negligence of driver of fire company's hose-cart nofimputable to fireman riding on such cart); Tompkins V. Clay Street E. Co., 66 Cal. 168 ; 18 Am. & Eng. E. Cas. 144 ; Wabash, &o. R. Co. V. Shacklett, 105 111. 364 ; 44 Am. Rep. 791 ; Louisville, &c. E. Co. v. Creelc, 180 Ind.a39 ; 29 N. E. Eep. 481 ; Pittsburg, &o. E. Co. V. Spencer, 98 Ind. 186 ; 21 Am. & Eng. B. Cas. 478 ; Danville, &c. Tp. Co. V. Stewart, 2 Met. (Ky.) 119; Louisville, &c. R. Co. v. Case, 9 Bush (Ky.), 728 ; Holzab v New Orieans, &c. E. Co., 38 La. An. 185 ; 58 Am. Eep. 177 ; State v. Boston, &c. B. Co., 80 Me. 430 ; Eyler v. County Com'rs, 49 Md. 257 ; 33 Am. Bep. ?49 ; Philadelphia, &c. B. Co. V. Hogeland, 66 Md. 149 ; 57 Am. Eep. 492 ; FoUman v. Mankato, 35 Minn. 522 ; Poor v. Sears, 154 Mass. 539 ; 28 N. E. Rep. 1046 ; Malmsten v. Marquette, &c. R. Co., 49 Mich. 94 ; 8 Am. & Eng. R. Cas. 291 ; Cuddy v. Horn, 48 Mich. 596 ; 4; Aip. Rep. 178 ; Lake Erie, &c. B. Co. V. Steinbrenner, 47 N. J. L. 161, 171 ; 23 Am. & Eng. E, Cas. 330 ; Robinson V. New York Cent. B. Co., 66 N. Y. 11 ; 23 Am. Rep. 1 ; Gumming v. Brooklyn City E. Co., 104 N. Y. 669; Masterson v. SEC. 3'22 a.] IMPUTABLE NEGLIGENCE, ETC. 1605 abandonment of the doctrine of imputable negligence 'as. applied to passengers and their carriers. In fact the doctrine has been repudiated in every case of recent date, regardless of whether the passenger was in a private or public conveyance,^ or whether he rode in a hired vehicle, or by invitation of the proprietor, his friend or relative.^ In the case of passengers on street-railway cars there is less ground than in any other for an attempt to apply the doctrine ; accordingly it has never been recognized in such cases.^ The only instance in which a traveller or passenger is chargeable with the contributory negligence of his driver is where the gelation of master and servant actually exists and the servant at the time of the injury is acting under the immediate control ;,and direction of the master. Thus where the master is seated on the driving-box New York,,&o. R Co., 84 N. Y. 247 ; 38 Am. Rep. ^510 ; 3 Am. & Eng. R. Cas. 408 ; Chapman v. New Haven R Co., 19 N. Y. 341 ; 75 Am. Dec. 344 ; Webster V. Hudson River R. Co., 38 N. Y. 262 ; Covington Transfer Co. v. Kelly, 38 Ohio St. 86 ; 38 Am. Rep. 558 (passenger on street-car) ; St. Clair St. R. Co. v. Eadie, ,43 Ohio St. 91 ; 23 Am. & Eng. R. Cas. 269 ; 54 Am. Rep. 802 ; Davis v. Guarnieri, 45 Ohio St. 470 ; Galveston, &o. R. Co. v: Kutac, 72 Tex. 643; New York, &c. R. Co. V. Cooper, 85 Va. 939 ; Sheffield v. Central Un. Tel. Co., 36 Fed. Rep. 164. The rule is that where one travels in a vehicle over which he has no control, but at the invitation of the owner and driver, no relationship of principal and agent arises between them. He is not responsible for the negligence of the driver, where he him- self is not chargeable with negligence, and where there is no claim that the driver was not competent to control and manage the team. Dyer v. Erie R. Co., 71 N. Y. 228.' 1 Randolph v. O'Riorden, 155 Mass. 331 ; 29 N. E. Rep. 583'; Larkin v. Burlington, &c. R. Co. (Iowa), 52 N. W. Rep. 480 ; Becke v. Missouri Pac. R. Co., 102 Mo. 544. A passenger in a public hack is not bound to supervise the driver at a railroad crossing, nor to listen for approaching trains, unless she has rea- sonable cause to suspect thccompetence of the driver. East' Tenn., &c. R. Co. v. Markens, 88 Ga. 60. "There is no dis- tinction in principle whether the passen- gers be on a public conveyance like a railroad train or an omnibus, or be on a hack hired from a public stand in the street for a drive. Those on a hack do not become responsible for the negligence of the driver if they exercise no eoutrol over him further than to indicate the route they wish to travel." Little v. Hackett, 116 U. S. 379. 2 Lapley v. Union Pac. R.Co., 60 Fed. Rep. 172 (girl riding with her brother) ; McCaffrey v. President Delaware, &c. Canal Co., 62 Hun (N. Y.), 618 ; Cahill v. Cin- cinnati, &c. R. Co. (Ky.), IBS. W. Rep. 2; Dyer v. Erie I?,. Co. 71 N. Y. 288 (riding by invitation); Noyes v. Bosca- wen, 64 N. H. 361 ; Town of Knights- town V. Musgrove, 116 Ind. 121 ; Nesbet V. Garner, 75 Iowa, 314. The negligence of one driving a private vehicle canndt be imputed to one riding therein, the- latter having no right to control, in any way, the actions of the former. Bennett v. New York Cent. R..Co., 61 Hun (N. Y.), 623; 133 N. Y. 563. 8 Bennett i: New Jersey R. Co., 36 N. J. L. 225 ; 13 Am. Rep. 435 ; Seaman V. Koohler, 122 N. Y. 646 (negligence of driver not imputable to conductor) ; Cov- ington Transfer Co. v. Kelly, 38 Ohio St. 86 ; 38 Am. Rep. 558 ; Whelan ». New York, • &c. R. Co., 38 Fed. Eep, 15 ; Georgia Pac. R. Co. v. Hughes, 87 Ala, 610. 1506 NEGLIGENCE. [CHAP. XVJII. with his Servant who holds the reins, and an injury occurs while they are driving over a crossing, the master's action for dafnages will be barred if the negligence of his servant contributed to cause the injury.^ Where the mastef has an action brought against hitH for the negligence of his servant, if the relation of master and servant actually existed at the time of the injury, the servant's negligence may be imputed to the master so as to make the latter liable ; but such a case is nothing more than an application of settled rules as to the responsibility of the master fqr acts of his servant.^ Sec. 322 b. Comparative JTegligence. — The doctrifle of com- parative negligence is defined to be " that doctrine in the law of negligence by which the negligence of the parties is compared in the degrees of 'slight,' 'ordinary,' and 'gross' negligence, and a recovery permitted, notwithstanding the contributory negligence of the plaintiff, when the negligence of the plaintiff is slight and the negligence of the deiFendant gross, but refused when the plain- tiff has been guilty of a want of ordinary care contributing to his injury, or when the negligence of the defendant is not gross, but only ordinary or slight when comparted, under the circumstances of the case, with the contributory negligence of the plaintiff." ^ This doetrine originated with the courts of Illinois, being derived from the doctrine which has long existed in admiralty and in the law of bailments by which degrees of negligence were recognized.* It is still applied in Illinois,^ but is repudiated in most of the Statesj^ 1 Briokell V. Nejv York Cent., &c. B. trine distinctly asserted and jieviewed ait Co., 120 N. Y. 290. length) ; Chicago v. Stearns, 105 111. 5.54 ; '^ See Georgia Pac. B. Co. v. Under- AbencJ «. Terre Haute, &c. R. Co., Ill 111. wood, 90 Ala. 49. 208 ; 53 Am. Eep. 616 ; 20 Am. & Eng. 8' 3 Am. & Eng, Ency. of Law, p. 367. R. Cas. 614. In this article, W. H. Russell, Esq., now « Carrington v. Louisville, &o. E. Co., of Harriman, Tenn., presents a very thor- 88 Ala. 472 ; 6 So. Rep. 910 ; Prescott, ough and logical review of the doctrine. &c. B. Co. i/. Rees (Ariz. 1892), 28 Pac. See also Beach on Cont. Neg. (1st ed.), p. Eep. 1134 ; Eowen v. New York, &c. E. 82-84. Co., 56 Corni. 364 ; 21 Atl. Rep. 1073 ; * The Nautilus, 1 tVare (U. S.), 529 ; Chicago, &o. R. Co. v. Brown, 44 Kan. The Sapphire, 18 Wall. (U. S.) 51 ; The 384 ; 24 Pac. Eep. 497 ; Kansas Pac. B. Atlas, 93 U. S. 302 ; Coggs v. Bernard, 2 Co. v. Poavey, 29 Kan. 169 ; 44 Am. Eep. Ld. Bay. 909 ; 1 Smith's L. Caa. 82 ; 8 630 ; Mason «. MisSo,uri Pac. E. Co., 27 Minor's Insts. 252-257 ; Schouler on Bail- Kan. 8D j 41 Am. Rep. 405 j 6 Am. & ments, 15 ; Jones on Bailments, 8 ; Story Eng. R.' Cas. 1 ; Kansas, &c. R. Co. v. on Id. § 17. Fitzsimmons, 18 Kan. 84 ; 22 Kan. 686 ; 5 Galena, &o. B. Co. v. Jacobs, 20 111. 31 Am. Bep. 208 ; Fenneman ». Holdraan 478 ; Chicago, &u, R. Co. ». Johnson, 103 (Md. 1891), 22 Atl. Eep. 1049 (instruction 111. 612 ; 8 Am. & Eng. E. Cas. 225 (doo- is contradictory which states that plaintiff SEC. 322 B.] COMPABAtlVB NEGLIGENCE. 1507 though there are some othef oourts which adopt a modification of it.i The application of this doctrine must necessarily involve the nicest discriminations of fact, and while it was invented in order to soften the rule as to contributory negligence being a bar to plaintiffs action,^ it may well admit of question whether it has not created more confusion than anything else.^ Where it prevails, the plaintiff, may recover " if he used feasoflaMe care, though he was guilty of some negligence ") ; Long V. Tp. of Milford, 137 Penn. St. 122 ; Galveston, &c. R. Co. •», Thornsberry (Tex. 1891), 17 S. W. Bep. 521. The doc- trine in Oregon is set out iu the case of Hurst V. Burnside, 12 Oreg. 520 ; 8 Pac. Eep. 894 : "A person may be negligent ill any affair and still recover on account of the negligence of another party, but not When his negligence is tl^e proximate cause of the injury. The law does not enforce contribution between joint tort-feasors. However slight the negligence upon the part of the plaintiff may be, if it be sach .that but for that negligence the misfortune would not have occurred, he cannot recover ; but if thejnjury would have happened if his want of care had not contributed thereto, there may be a liability. " Cassida V. 0regon, &c. E. Co., 14 Oreg: 551 ; I3 Pale. Bep. 441, 1 The doctrine now prevails, in Ken- tacky by virtue of a statute which provides that the defendant shall be liable for inju- ries caused by his gross neglect, notwith- standing plaintiffs contributory negli-, gence. But it is held that this statute applies only to cases where death results from such gross negligence. Illinois Cent. R Co. V. Dick (Ey. 1891), 15 S. W. Eep. 665. Prior to the statute the doctrine did not prevail. See Kentucky Cent. E Co. V. Thomas, 79 Ky. 160 ; 42 Am. Bep. 208 ; 1 Am. & Eng. E. Cas. 79; Adatns v. Louisville, &o. E. Co. (Ky.), 21 Am. & Eng. R. Cas, S80 ; 3 Am. & Eng. Ency. Law, 375. In Tennessee, the rule is that the plaiutifFs contributory negligence will ordinarily bar his reeovery, but that pfein- tiff, though negligent, may recover if he could have avoided the consequences Of defendant's negligence by the exercise of ordinary care. His contributory negli- gence however is to be considered in Miti- gation of damages. The rule as thus adopted does not admit of a recovery where the parties are equally blamable. East Teun., &o. B. Co. v. Fain, 12 Lea(Tenn.), 35 ; 19 Am. & Eng. E. Cas. 105 ; Louis- ville, &c. R. Co. V. Fleming, 14 Lea (Tenn.), 128 ; 18 Am. & Eng. E. Cas. 347 ; Jack- son V. Nashville, &c. E. Co., 13 Lea (Tenn.), "491; 49 Am. Eep. 663 ; East Tenn., &c. E. Co. V. Stewart, 13 Lea (Tenn.), 618. See alsoWhirley D. Whiteman, 1 Head (Tenn.), 610 ; Louisville, &c. E. Co. v. Burke, 6 Coldw. (Tenn.) 645 ; Smith v. Nashville, &C.. E. Co., 6 Coldw. 589 ; 6 Heisk. 124 ; Nashville, &c. B. Co. v. Carroll, 6 Heisk. (Tenn.) 347-367. See also East Tenn., &c. E. Co. V. Aiken, 89 Tenn. 245. And from , the language used in the opinion in Bran- ham V. Central E. Co., 78 Ga. 35 ; 1 S. E. Eep. 274, and other cases, it seems that the Tennessee doctrine prevails in Georgia, See Georgia E. Cd. v. Pittman, 73 Ga. ,325 ; 26 Am. & Eng. R. Cats. 476 ; Central E. Co. V. Gleason, 69 Ga. 200 ; Atlanta, &c. E. Co. ». ,Wyley, 65 Ga. 120 ; Atlanta, &c. E. Co. .;. Ayers, 53 Ga. 12 ; Thomp- son V. Central R. Co., 54 Ga. 509. 2 Illinois, &a. R. Co. v. Evans, 88 111. 65 ; Chicago, &G. R. Co. v. Harwood, 9'0 111. 427. ' It would seem to an drdinary obser^- ejr that the capacity of juries is already taxed to its limit in their being required to determine the proximity of causation and the fact as to wliether or not plaintiff or defendant acted *ith the care which a man of ordinary prudence would use, etc. To ask them to make the delicate compari- sons required by the doctrine of compara- tive negligence serves but to cloud the issues, and render a proper verdict more difficult tian ever to be obtained. 1608 NEGLIGENCE. CHAP. XVIII. if he has been guilty of any negligence at all which -contributed as a proximate cause to the injury, must show that his own negligence was " slight " only, and that that of the defendant was " gross ; " there must be an entire degree between his negligence and that of the defendant ; ^ a mere preponderance of negligence on the part of defendant is not sufficient.^ What constitutes " slight " or " gross " negligence on the part of either party cannot be determined from any fixed rules, but must always be left to the jury.* But where the injury is wilful and not inadvertent, the plaintiff is entitled to recover, since contributory negligence, no matter of what degree, is no bar to an action for a wilful injury. A wilful injury cannot be classed as " gross negligence " and thus open the way for an application of the rule of comparison.* It should be observed that in every case the plaintiff must show that he was in the exercise of ordinary care at the time of the injury ; the doctrine of comparative negligence is never applicable unless this is established.^ But the plaintiff may have been guilty of slight Chicago, &e. E. Co. v. Clark, 108 III. 114 ; 15 Am. & Eng. K. Cas. 261. See also Chicago, &e. R. Co. v. Johnson, 103 111. 512; 8 Am. & Eng. R. Cas. 235'. * Illinois, &c. K. Co. v. Hetherington, 83 III. 510 ; St. Louis, &c. R. Co. v. Todd, 36 111. 414. See the subject of so-called " wilful negligence," and also the question of wilful injury discussed, Carringtoii v. Loui^ille, &c. E. Co., 88 Ala. 472 ; 6 So. Bep. 910 ; Louisville, &o. R. Co. v. Bryan, 107 Ind. 54 ; 16 Am. & Eng. Ency. Law, Article "Negligence," pp. 392-395. ' Therefore an instruction that "in this case although the juiy may believe from the evidence that plaintiff was not wholly without negligence, yet if you further be- lieve from the evidence that defendant was guilty of gross negligence, while theplain- tifif was guilty only of slight negligence, then such slight negligence will not prevent a recovery," is erroneous as assuming that plaintiff exercised ordinary care, since the doctrine of comparative negligence applies only where plaintiff was in the exercise of ordinary care. Toledo, &c. R. Co. v. Cline, 135 III. 41 ; 25 N. E. Rep. 846. See the same view held in Chicago, &c. R. Co. v. Warner, 22 111. App. 462, affirmed, 123 111. 38. But such an instruction is all right if the necessity of plaintiff's having been in 1 Eockford, &o. E. Co. v. Delaney, 82 111. 196 ; 25 Am. Rep. 308 ; Indianapolis, &o. E. Co. r. Evans, 88 111. 63 ; Joliet v. Seward, 86 111. 402 ; Parmelee v. Farro, 22 111. App. 467 ; Chicago, &c. E. Co. v. Mason, 27 111. App. 450. It is no harm in instructing the jury to speak of " some " negligence on part of plaintiff when " slight " negligence is meant, though the latter term should be used. Willard ». Swanson, 22 111. App. 424, affirmed, 126 381. " Chicago, &c. E. Co. v. Dimick, 96 111. 42 ;" Illinois Cent. E. Co. v. Goddard, 72 111. 568 ; Chicago, &o. E. Co. v. Clark, 70 III. 278 ; Prescott, &c. E. Co. v. Eees (Ariz. 1892), 28 Pac. Eep. 1134. But in one case it is said that where plaintiff's negligence is slight, and that of defendant was ordinary, plaintiff may recover. City of Galesburg v. Benedict, 22 111. App. 111. ' North Chicago Rolling Mill Co. v. Johnson, 114 111. 57 ; Illinois Cent. R. Co. V. Haskins, 115 111. 300 ; Pennsylvania Co. V. Frana, 112 111. 398. But if there is no evidence of ordinary care on the part of the plaintiff, or if it fails to appear that the defendant's negligence was gross, the court will hold as a matter of law that plaintiff's action cannot be sustained. SEC. 323.] INJUEIES AT HIGHWAY-CEOSSINGS. 1509 negligence and still have been in the exercise of ordinary care. At least such is the view of these cases. It seems, however, that the use of such expressions tends greatly to a confusion of principles. The doctrine of comparative negligence is merely a modification of the general law in a single particular, and in all other respects the usual rules of the law of negligence prevail. There is no room for its application, therefore, where the plaintiff's negligence does not operate as a proximate cause of the injury ,i nor where the plaintiff is so young as to be incapable of contributory negligenoe.^ Out of the application of the doctrine various rules have arisen in the courts of Illinois, a review of which is unnecessary in this connection.^ Sec. 323. Injuries at Highway-Crossings. — Every company own- ing and operating a railway is now generally required by statute to construct and maintain safe and proper crossings at all points where its road intersects a public highway ; and it is liable for all injuries resulting from a neglect of this duty.* The character and extent of this duty has already been considered ; ^ the important question in this section is as to liability for injuries resulting from the negligent operation of trains at highway-crossings. the exercise of oi'dinary cave is clearly laid sylvania Co. v. Stoelke, 104 111. 201. The down in other instructions. Tomle v. intermediate appellate courts have author- Hampton, 28 111. App. 142 ; affirmed, 129 ity to review the facts of the case as well 111. 879. • as the law, though the Supreme Court re- 1 3 Am. &Eng. Enoy. Law, 370 ; Beach views only matters of law. Illinois Cent, on Cont. Neg. (1st ed.), 87 ; Chicago, &c. R. Co. v. Raskins, 115 111. 300 ; 22 Am. R. Co. V. Johnson, 103 111. 512 ; 8 Am. & & Eng. R. Cas. 245. Eng. R. Cas. 225. * See Farley v. Chicago, &c. R. Co., 2 Chicago, &e. R. Co. v. Welsh, 118 42 Iowa, 234 ; Kelly v. Southern, &c. R. 111. 572 ; Chicago, &c. R. Co. ■». Gregory, Co., 28 Minn. 98 ; 6 Am. & Eng. R. Cas. 58 111. 226 ; Chicago, &o. R. Co. v. Dela- 264 ; Pittsburgh, &c. R. Co. v. Dunn, 56 ney, 82 111. 198 ; 25 Am. Rep. 310 ; Hayes Penn. St. 280 ; Paducah, &c. R. Co. v. V. Michigan Cent. R. Co., Ill U. S. 228 ; Com., 80 Ky. 147 ; 10 Am. & Eng. R. 15 Am. & Eng. E. Cas. 394. Cas. 318 ; State v. Dayton, &c. R. Co., « See Terre Haute v. Voelker, 31 111. 36 Ohio St. 436 ; 5 Am. & Eng. R. Cas. App. 314; affirmed, 129 111. 540 ; City of 312 ; Louisville, &c. R. Co. v. Smith, 91 Champagne v. Jones, 32 111. App. 179.; Ind. 119; 13 Am. & Eng. R. Cas. 608. affirmed, 132 111. 304 ; Lake Shore, &c. R. « See ante, § 287 a ; 4 Am. & Eng. Co., II. Bodemer, 33 111. App. 479 (trespasser Ency. Law, pp. 907-908. Whether the on track allowed to recover) ; Lake Shore, crossing has been constructed with proper &c. R. Co. V. Johnson, 135 111. 641 ; North care, and so as to render crossing at that Chicago St. R. Co. ». Williams, 140 lU. point as little dangerous as possible to the 275. Evidence of a custom prevailing public using the highway, is generally for where plaintiff was employed is admissible the jury to say. Roberts v. Chicago, &c. to aid the jury in determining the degree E. Co., 35 Wis. 679. See also Ferguson of care exercised by the plaintiff as com- v. Virginia, &o. R. Co., 13 Nev. 184. pared with that of the defendant. Feun- 1610 NBGLIGBNOB. [CHAP. XVUI. As we have seen, its track and road-bed are the private and exclu- sive property of the railroad company upon which no one has a right to trespass, and if any one goes thereon he does so at his own peril ; the company owes him no duty except to refrain from wilful injury.^ But where the track crosses or is crossed by a highway, the rule is necessarily different ; the company certainly retains the right to use that part of the track for the operation of its trains, but the public have an equal right to use that space for highway purposes. Neither party has the right to interfere with the proper use of the crossing by the other.^ The situation then creates mutual rights "and obli- gations ; both parties must use ordinary care in the exercise of their o\yn rights, they must have regard to the circumstances and to the danger incident to a careless use of such a right of passage.* In a case before the Supreme Court of the United States,* Mr. Justice Beadley, speaking for the court, said in regard to the com- pany's duty: "From the character and momentum of a railroad' train, and the requirements of public travel by means thereof, it can- not be expected that it shall stop and give precedence to an approach- ing wagon to make the crossing first ; it is the duty of the wagon to wait for the train. The train has the preference and the right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warn- ing may depend on many circumstances. It cannot be such if the speed of the train is so great as to render it unavailing. The speed ,» See ante, § 820 ; Byrne ■». N. Y. the Caae in endeavoring fairly to perform Central B. Co., 94 N. y. 12 (private cross- his duty." Mr. Justice Bradley, in Con- ing) ; Donnelly v. Brooklyn, &c. R. Co., tinental Imp. Co. v. Stead, 94 U. S. 165. 109 N. Y. 16 ; Philadelphia, &c. R. Co. v. See also Chicago, &c. E. Co. v. Hillmer, Hummell, 44 Penn. St. 875 ; 84 Am. Dee. 72 111. 235 ; Indianapolis, &c. R. Co. v. *^^- ' MoLin, 82 Ind. 485 ; Louisville, &c. H. 2 " We think the [trial] judge was Co. v. Goetz, 79 Ky. 442 ; 14 Am. & Eng. therefore perfectly right in holding that R. Gas. 627 ; Baltimore, &c. R. Co. v. the obligation.-ii, rights, and duties of rail- Qwings, 65 Md. 602; 28 Am. & Eng. R. roads and travellers upon intersectingj Gas. 689 ; Beisiegel v. IS. Y. Central R. highways are mutual and reciprocal, andf Co., 40 N. Y. 9 ; Pennsylvania B. Co. v. that no greater degree of care is required Goodman, 62 Penn. St. 829. of the one than of the other. . , . Both 8 K^y v. Pennsylvania R. Co., 65 Penn. parties are charged with the mutual duty St. 269 ; Willoughby v. Chicago, &c. B. of keeping a careful lookout for danger ; Co., 37 Iowa, 432; Pennsylvania R. Co. and the degree of diligence to he exercised v. Krick, 47 Ind, 868. on either side is such as a prudent man * Continental Improvement Co. v. would exercise under the circumstances of Stead, 94 U. 8. 164. SBC. 323.] INJURIES AT HIGHWAY-CEOSSINGS. 1511 of a train at a crossing should not be so great as to render unavailing the warning of its whistle and hell ; and this caution is especially applicable when their sound is obstructed by winds or other noises, a«d when intervening objects prevent those who are approaching the ra,ilroad from seeing a coming train. In such oases, if an unslackened speed is desimble, watchmen should be stationed at the crossing." This is a comprehensive statement of the company's duty, and although numerous other statements have been formulated by the courts they all amount to the same general requirement that the company must exercise ordinary care under the circumstances.^ It is bound to use every reasonable precaution, but not every possible one.2 Thus it must always, on approaching a crossing, give suitable warning of its approach by sounding the whistle, and this must be done in sufficient time to make it effectual as a warning.^ In most 1 Weber «. New York CentraH}. Co., 58 N. Y. 451 ; Western R. Co. v. King, 70 Ga. 261 ; 19 Am. & Eng. R. Cas. 255 ; Baltimore, &c. R. Co. v. Breinig, 25 Ind. 378 ; 90 Am. Deo, 49. Instructions that a railroad company, on its trains approach- ing a, crossing, must exercise "a high degree of diligence and care," and " give sufficient and timely warning, and take such precautions as shall he efficient ; " that "the law does not require that what- ever warnings or precautions are taken shall be sufficient and effective," that the jury may consider " whether or not timely apd efficient warning was given," and whether there were safer and surer sig- nals of its approach to the crossing within its command," fl,re erroneous in that they require too much of the company ; it is hound only to exercise such care as an ordinarily prudent person would exercise u,nder the same circumstances. Cbicngo, &c. R. Co. V. Fisher (Kan.), 30 Pac. Rep. 462. « Weber ». H'. Y. Central R. Co., 58 N. Y. 451 ; Shaw v. Boston, &o. R, Co., 8 Gray (Mass.), 45. Thus the placing of a man as a guard on each car of a freight train, to ^ve apd repeat signals, cannot ordinarily be required. Chicago, &o. R. Co. V. Stumps, 65 111. 867. But the com- pany must provide a proper head-light as an additional warning of its approach. Alabamji, &c. B. Co. v. Jones, 71 Ala. 487. " Continental Imp. Co. v. S^ead, 94 U, S. 161 ; Reeves v. Delaware, &e. B, Co., 30 Penn. St. 454 j Hinkle v. Rich- mond, &c. R. Co., 109 N. C. 472 ; Her- mann V. N. Y. Central R. Co., 17 N. Y. Supp. 319. This duty to give some warn- ing exists independently of any statute, though its requirements, when not pre- scribed by statute, are generally for the jury, Philadelphia, &c. R. Co. v. Steizer, 78 Penn. St. 219 ; Cadell v. N. Y. Cen- tral R. Co., 64 N. Y. 535 ; 6 Hun (N. Y.), 461 ; Black v. Burlington, &c. R. Co., 38 Iowa, 515 ; Bauer n. Kansas Pacific R. Co., 69 Mo. 219 ; Paduaah, Sao, R. Co. v. Hoehl, 12 Bush (Ky.), 41 ; Ellis i>. Great Western Ry. Co., L. K. 9 C. P. 551. Com- pare Brown V. Milwaukee, &o. R. Oq,, 22 Minn. 165, holding that the company is not necessarily bound to sound its whistle at a crossing unless required by statute. See also Favor v. Boston, &o. R. Co., 114 Mass. 350; Dyer v. Erie E. Co., 71 N. Y. 228 ; Loucks v. Chicago, &c. R. Co., 31 Minn. 526. Where the alleged negligeiioe consisted in a, failure to ring the bell oy sound the whistle, the testimony of pas- sengers on the train, who were in a posi- tion to have heard, that they did not hear either of these signals, is competent, al- though it does not affirmatively appear that they were looking or listening there- for. Greany v. Long Island R. Co., 101 N, Y. 419. But in McKeever v. N. Y. Central E. Co., 88 N. Y. 667, the plain- 1512 NEGLIGENCE. [chap, xviii. if not in all of them the duty as to signalling is prescribed by statute. A failure to discharge this statutory duty is evidence of the com- pany's negligence, but it is erroneous to say that it conclusively establishes its liability.^ It is also a part of the company's duty to indicate the existence of the crossing by conspicuous sign-boards ; ^ this duty too is generally prescribed by statute, but as in the pre- ceding case a neglect of it is only some evidence of negligence, and is not conclusive proof of liability .^ As to the rate of speed, it must be such that, together with the warning signals given, travellers near or on the crossing may have reasonable opportunity to avoid danger.* This does not mean that there mu^t be a material reduction in the rate of speed on approaching every highway-crossing, such a reqiiire- ment would prove a most serious hinderance to the rapid transporta- tiff, who was run over at a crossing, was non-suited on the authority of Culhane v, N. Y. Central R. Co., 60 N. Y. 133. The court here agi'eed as to the rule laid down in that case, i. e., that as against positive affirmative evidence by credible witnesses, to the ringing of a bell or sounding of a whistle, there must be something more than the testimony of one or more witnesses that they did" not hear it, to authorize the submission of that question to the jury. 1 Sala V. Chicago, &c. E. Co. (Iowa), 52 N. W. Eep. 664 (plaintiff must still prove himself free from negligence) ; Barber V. Richmond, &c. E. Co., 3i S. C. 444 (failure to give signal immaterial, when traveller was aware of the approach of the train); Briggs v. N. York Central R. Co., 72 N. Y. 26. Compare Louisville, &c. R. Co. V. Howard, 90 Tenn. 144. See this part of the subject examined further on in this section, post, pp. 1614-1516. 2 Baltimore, &c. R. Co, ti. Whitacre, 35 Ohio St. 627 ; Shaber v. St. Paul, &c. R. Co., 28 Minn. 103 ; Elkins v. Boston, &c. R. Co., 116 Mass. 190. The absence of the sign-board however is immaterial where the traveller is familiar with the crossing. Haas v. Grand Rapids, &c. R. Co., 47 Mich. 401 ; 8 Am. & Eng. R. Cas. 268. Nor will its absence warrant a re- covery where by the exercise of ordinary care the traveller might have known of the crossing without a sign-board, Gnlf, &o. H. Co. V. Greenlee, 62 Tex. 344 j 23 Am. & Eng. R. Cas. 322 ; Payne v. Chicago, &c. K. Co., 39 Iowa, 623 ; 44 Iowa, 288. » Lang V. Holliday Creek R. Co., 49 Iowa, 469 ; Field v. Chicago, &c. R. Co , i McCrary (U. S.), 573; 14 Fed. Rep, 332 ; 8 Am. & Eng. R. Cas. 425 ; Payne v. Chi- cago, &c. R. Co., 39 Iowa, 523 ; 44 Iowa, 236 ; Heddles v. Chicago, &c. R. Co., 77 Wis. 228. The statute requiring sign- boards does not apply to a traveller not intending to use the crossing, but who is' travelling on the public highway parallel to the railroad. East Tennessee, &c. R. Co. V. Feathers, 10 Lea (Tenn.), 103. In a suit against a railway company for injuries sustained by being run into at a highway- crossing, evidence that there was no sign- board at the crossing at the time of the accident is admissible on the issue of due care on the part of the plaintiff. Elkins v. Boston,&c. R. Co., 116 Mass 190. Evidence that the company had no sign over the crossing to warn persons approaching of its presence is proper, although there is no statute or ordinance requiring the company to have such a sign. It is for the jury to say whether the omission to have such a sign is negligence ; and it is for them to say whether it contributed to the injury, even where it appears that the person in- jured was familiar with the crossing. Shaber v. St. Paul, &c. R, Co., 28 Minn. 103 ; 2 Am. & tug. R. Cas, 186 ; Balti- more & Ohio R. Co. V. Whitacre, 35 Ohio St. 627. ♦ Ellis V. Lake Shore, &c. R, Co., 138 Penn. St. 606; Louisville, &c. R. Co. ». Stommel, 126 Ind. 36 ; Antiacker f, Chi- cago, &c. R. Co., 81 Iowa, 267. SBC. 323.] INJUEIES AT HIGHWAY-OKOSSINGS. 1513 tioii which is so much desired, But it does require that the speed shall not be so great as to reader the precautionary signals unavail- ing, particularly where the view of the track is obstructed.^ Trains should not pass each other at crossings if it is practicable to avoid it,2 nor should one train follow too closely behind another while a crossing is being passed.^ And wherever the company, either by the management of its trains, or the peculiar mode in which its road is constructed, causes unusual danger to travellers on the highway, it must meet this danger by corresponding precautions'; the care to be exercised by it must be commensurate with the degree' of danger.* It is further a part of the company's duty to provide its trains and engin.es with good and sufficient appliances for the proper control of the train; to provide a sufficient force of competent employes on every train, and to keep them free from influences liable to distract their attention from their duties.^ Thus the presence of visitors in 1 Toledo, &c. R. Co. v. Miller, 76 111. 278 (not bound to slacken speed at crossing in open country) ; Zeigler v. Northeastern R. Co., 5 S. C. 222 , 7 S. C. 402 (same) ; Continental Imp. Co. v. Stead, 95 U. S. 161 ; Ellis V Lake Shore, &o. K. Co., 138 Penn. St. 506 ; Chicago, &c. R. Co. v. Florens, 32 111, App. 365. Forty-five miles an hour is not an excessive speed at which to approach a railroad crossing in the country where the engine has a hell and a whistle which can be heard for a mile at least. Griffith v, Baltimore, &c. R. Co., 44 Fed. Eep. 674. Nor is thirty-five miles per hour, Reading, &c. R. Co. v. Ritchie, 102 Penn. St. 425. Indeed no rate of speed can be said to be negligence per se, but the question as to whether the engineer was negligent in running the train at a particular speed is one of fact to be deter- mined from the circumstances. Young v. Hannibal, &c. R. Co., 79 Mo. 3?6.; Neier y. Missouri Pac. R. Co., 12 Mo. App. 25 ; P.Dwell V. Railroad Co.j 76 Mo, 80 ; Mar- cottD. Marquette, &c. R. Co., 47 Mich. 1 ; Reading, &c. R. Co. o. Ritchie, 102 Penn. St. 425 ; Burlington, &o. E. Co v. Wendt, 12 Neb. 76 ; Chicago, &c. R. Co. . Har- wood, 80 111. 88. " West «. New Jersey, &c. R. Co., 32 N. J. L. 91 ; Patterson's Ry. Ace. Law, 166. But where a highway crosses a VOL. II —45 double-track railway, over which trains are liable to run frequently^n opposite directions, it is contributory negligence for a traveller thereon, whose view of the second track is obstured by the presence of a passing train on the track neareist to him, to pass immediately upon the crossing as soon as the way is clear, without wait- ing to look or listen for the approach of a train in the opposite direction on the second track. Marty v. Chicago, &c. E. Co., 38 Minn. 108, And in Young v. New York, &c. R. Co., 107 N. Y. 500, plaintiif was held to he guilty of contributory negli- gence in crossing a double track without looking both ways. Also in Woodward v'. New York, &c. R. Co , 106 N. Y. 369. " Chicago, &a. R. Co, v. Boggs, 101 Ind. 522 ; 23 Am & Eng. E. Cas. 282. * Pierce on Eailroads, pp. 342, 346 ; Klein v. Jewett, 26 N. J. Eq. 479'; James v. Great Western Ey. Co., L. E. 2 C. P. 634. s Marcott v. Marquette, &c. E. Co., 47 Mich. 1 ; 4 Am. & Eng. E. Cas. 548 ; Smith » New York, &c. R. Co., 19 N. Y. 127 ; Nashville, &c. E. Co. v. Smith, 6 Heisk. (Tenn,) 174 (failure to have head- light on engine) ; Smedis v. Brooklyn, &c. E. Co., 88 N. Y. 13 ; 8 Am & Eng. R. Cas. 45. 1514 NEGLIGENCE. [CHAP. XVIII. the engine cab is evidence to be considered in determining whether the engineer was negligent in the lookout ahea4.'' In most of the States the duty of the company in regard to signals is prescribed by statutes, which generally require that the whistle shall be sounded some distance from the crossing and the bell con- tinuously rung until the crossing is passed. These are but little more than an affirmance of the ^"ty required by the common law. Any failure to observe these requirements is negligence, and proof of it is some evidence of the plaintiff's right to recover.^ But as has already been observed, it by no means conclusively establishes the company's liability. To treat such a failure as actionable negligence 'per se, and to make it conclusive proof of defendant's liability, would be to relieve the plaintiff of the consequences of his own wrong-doing in many cases where his negligence contributed to injury, and would be a flagrant disregard in some cases of the maxim causa proximu, etc. The true rule is that- except where the statute expressly pro- vides otherwise, proof of the failure to give the statutory signals is merely proof of a want of care on the part of the defendant ; the causal connection between this want of care and the injury remains to be proved, and the defence of contributory negligence! is still open.' 1 Marcott v. Mflr(|uette, &e. E. Co., 47 « Cincinnati, &o R. Co. v. Butler, 103 Mifih. 1 ; 4 Am. & Eng. R. Cas. 548. Ind, 35 ; 23 Am, & Eng. R. Gas. 262; 2 Lewis i>. New York, &a. R. Co., 123 Daniels v. Staten Island R Co., 125 N. N. Y. 496 ; Clark w. Boston, &c. R. Co., Y. 407 (failure to have headlight required 64 N. H. 323 ; 81 Am. & Eng. R. Cas. by statute is immaterial when train was 648 ; Augusta, &o. R. Co. v, McElmnrry, plainly visible) ; Baltimore, &c. R. Co. e. 24 Ga. 75 ; Nash w. New York Central R. Walborn, 127 Ind. 142 ; Qrand Trunk R. Co., 125 N. Y. 715 ; Pennsylvania Co. v. Co. v Ives; 144 U. S. 408 ; Evans v. Con- Backes, 35.111. App, 375; affirmed, 24 N. cord R. Co. (N. H.), 21 Atl. Rep, 105 ; E. Rep. 563 ; Galveston, &c. R. Co. v. Terre Haute, &o. R. Co. v. Barr, 31 111. Matula, 79 Tex. 577 ; 15 S. W. Rep. 573 ; 57 ; Louisville, &c. R. Co. v. Stommel, 19 8. W. Rep. 376; Hiukle v. Richmond,- 126 Ind. 35 icontribntory negligence held &a. R. Co., 109 N. C. 472; Hanlon v. a complete defence); Saldana ». Texas, &c. South Boston R. Go., 129 Mass. 310; E. Co., 43 Fed. Rep. 862 (signals required Funston v. Chicago, &o. R. Co., 61 Iowa, by Texas statute unnecessary where plain- 452 , Philadelphia, &c. E. Co. v. Kerr, 25 tiff was already aware of the approach of Md 521 ; Atlanta, &c. R. Co. v. Wyly, the train); Ensley R. Co. v. Chewning, 93 65 Ga. 120, 8 Am. & Eng. R. Cas. 262. Ala. 24 ; Andrews v. New York, &c. R. " A failure, therefore, to ring the bell or Co., 60 Conn. 293; Bates v. New York, &q, Sound the whistle, as required by statute, E. Co., 60 Conn. 259; Barber v. Rioh- is, as a matter of law, negligence. But it mond, &c. R. Co., 84 S. C. 444 ; Cumming should be remarked that a liability does v. Brooklyn City R. Co., 104 N. Y. 669; not attach to every act of negligence per Sala v. Chicago, &c. R. Co. (Iowa), 52 te; such liability only attaches when the N. W. Rep. 664 (plaintiff in addition to injury results from the negligence.' showing company's failure must prove his Houston, &c. R, Co. v. Wilson, 80 Tex. own freedom from contributory negligence); 144. Korrady v. Lake Shore, &c. R. Co. (Ind.), SEC. 32S.3 INJUKIES AT HIGHWAY-CROSSINGS. 1616 There may, of course, be causes where the conduct of the company's servants has been so culpable, and the causal connection so plain, that the court may hold, as a matter of law, that the defendant is liable,^ but this is by no means the same thing as negligence per se!^ " The ordinances of a municipal corporation," it has been observed, " regulating the speed of trains. passing through the city, or the sounding of the whistle on the engine, are only police regula- tions, and do not have the effect of changing the general law upon the same subject, or change the duties and rights of the parties growing out of a failure, or doing what the ordinance commands or prohibits." * , The statutes merely represent the minimum degree of care to be observed by the company in certain particulars ; * they are merely cumulative and do not release the company from the observance of such additional precautions as peculiar circumstances may demand.^ There are some cases, however, which repudiate the 29 N. E. Rep. 1069 ; Philadelphia, &e. R. Co. V. Stebbing, 62 Md. 504 , 19 Am. & Eng. R. Cas. 36 • Central R., fe. Co. v. Smijth, 78 Ga. 694 ; 34 Am. & Eng. R. Cas.'l; 1 Shear. & Red. on Neg. (14th ed.), § 13. See also, as affirming the same principle, Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488, reversing 23 Hun (N. Y. ), 359 ; Cook v. Johnson, 58 Mich. 437 ; 55 Am. Rep. 703 ; Pennsylvania R. Co. V. Hensil, 70 Ind. 569 ; 36 Am. Rep. 188 ; 6 Am. & Eng. R. Cas. 79 ; Hayes v. Michigan Central R. Co., Ill U. S. 288 ; 15 Am. & Eng. R. Cas. 394 ; Pike v. Chi- cago, &c R. Co., 39 Fed. Rep. 354; Lyons n Ohilds, 61 N, H. 72 ; Heedlea v. Chi- cago, &c. R. Co., 74 Wis. 239 ; 39 Am. & Eng. R. Cas. 645 ; Atchison, &c. R. Co. V. WaJz. 4b Kan. 433 ; Cordell v. New York, &o. R. Co., 70 N. Y. 119. In the case of Philadelphia, &o. R. Co. v. Stub- bing, 62 Md. 516, the court, after stating the rule substantially as laid down in the text in a case involving a failure by the company to comply with an ordinance regulating the rate of speed, went on to say ; "In other words, it must appear that the negligent breach of the duty imposed by the ordinance was the direct and proximate cause of the injury com- plained of, and that such injury would not have occurred but for the violation of that duty. Hayes v. Michigan Central R. Co., Ill U. S. 228, 240 ; Gooley on Torts, 657, 658 ; Pennsylvania R. Co. v. Heneil^ 70 Ind. 569." 1 Houston, &c. R. Co. v. Wilson, 60 Tex. 144 ; Terre Haute, &c. R. Co. v. Voelker, 31 111. App. 314 ; affirmed, 129 111. 540 ; 39 Am. & Eng. R. Cas. 615 ; Salisbury v. Hersehenroder, 106 Mass. 468i, See also Baltimore, &c. R. Co. v, Walborn, 127 Md. 14i ^ Hayes v. Michigan Central R. Co., Ill U. S. 241 ; 15 Am. & Eng. R. Caa. 304 ; Chicago, &c. R. Co. n. Boggs, 101 Ind. 522 ; 23 Am. & Eng. R Cas. 282 ; 51 Am. Rep. 561. See also New York,,&c. R. Co. V. Kellam, 83 Va. 851. " Wheelan v. New York, &c. R. Coi, 38 Fed. Rep. 15, 17. * Richardson v. N. Y. Central R. Co., 45 N. Y. 846 ; Barry v N. Y. Central R. Co., 92 N. Y. 289 ; 13 Am. & Eng. R. Cas. 615 ! Bradley ». Boston, &c. R. Co., 2 Cush. "(Mass.) 639. For a violation of such statutes the company is generally liable to indictment. Com. v. Boston, &c. R. Co., 133 Mass. 383 ; 8 Am. & Eng. R. Cas 297, n. ' . • ' Chicago, &c. R. Co. v. Boggs, 101 Ind. 522 ; 23 Am. & Eng. R. Cas. 282 (in this case the company w.is held liable,it ap- pearing that one train followed another so closely that the traveller, watching only the first train, was run over by the second, though the statutory signals were prop- erly given). In the case of Richardson v. 1516 NEGLIGENCE. [chap, XVIIL foregoing views. In Tennessee, it is the recognized doctrine that, upon proof a failure to give the signals and adopt the precautions required by statute, the plaintifC's right to damages is conclusively established ; that it is no defence to prove the contributory negli- gence of the injured party, or that a coflipliance with the statute would not have prevented the injury.^ So also, on the same principle, the court holds that proof on the part of the company of a com- pliance with the statute exempts it from all liability.^ And in Mis- souri a somewhat similar doctrine obtains, except that the company may be allowed to proire affirmatively that its neglect was not the proximate cause of the injury.^ It is believed, however, that the views of these courts have no foundation in principle or authority. It is impossible to prescribe by statute exactly and precisely what should be done or omitted under all the various combinations of cir- cumstances which occur ; and this being true, it is not reasonable to make the question of liability or non-liability absolutely dependent upon the observance of fixed rules. The construction of the statutes as given by these latter courts has the effect to make them highly penal and unjust. N. Y. Central E. Co., 45 N. Y. 486, a deep cut through which the road ran pre- vented trains from being seen until they were very near the crossing ; the noise of falling water at the crossing, and the pecu- liar construction of the road, made it diffi- cult for signals to be heard from any distance. It appeared that the road could easily have been constructed under or over the highway instead of crossing it at grade. In an action by a person injured at the crossing, the court held that there being other evidence of negligence on the company?3 part, it was not released from liability by the mere fact that it had given the statutory signals. The court remarked: "The legislature has never enacted that a railroad shall not be liable for any injury at a crossing where it rings the bell or sounds its whistle. No legis- lative impunity is given to the railroads for the damages they may wrongfully cause." See also Thompson v. N. Y. Central JR. Co,, 110 N. Y. 636. Thus, where ordinaiy care in passing a crossing in a city requires a lower rate of speed than that allowed by ordinance, the com- pany may be held guilty of negligence in not adopting it. Shaber v. St. Paul, && E. Co., 28 Minn. 103. ' Tennessee,, &c. K. Co. v. Walker, 11 Heisk. (Tenn.) 383 ; Louisville, &c. R. Co. V. Howard, 90 Tenn. 144 ; 19 S. W. Rep. 116 ; Hill i/. Louisville, &c. R. Co., 9 Heisk. (Tenn.) 823 ; Nashville, &c. R. Co. V. Thomas, 5 Heisk. (Tenn.) 262. The second of the above cases well illus- trates the hardship of this unusual rule. ^ If these statutes are obeyed, it has been said, "these [railroad] companies have an absolute impunity not always vouchsafed to them at the common law. Upon the construction of these statutes there has been no variableness or shadow of turning in the adjudicated cases." Sneeb, J., in Hill v. Louisville, &c. R. Co., 9 Heisk. (Tenn.) 823. But see Louis- ville, &o. R. Co. V. Connor, 9 Heisk. (Tenn.) 20, 26. But that this is not the better rule, see Thompson v. N. Y. Cen- tral R. Co., 110 N. Y. 636. 8 Cruinpley v Hannibal, &c. R. Co. (Mo.), 19 8. W. Rep. 820 ; same case on previous hearing, 98 Mo. 34 ; U S. W. Rep. 244. See also Kenney v Hannibal, &c. B. Co., 105 Mo. 270 ; 16 S. W. R«p. 837. SEC. 323.] INJURIES AT HIGHWAY-CROSSINGS. 1517 It is not necessarily negligence on the part of a railroad com- pany to back and switch cars over a highway crossing, nor to make " flyiiig switches '' there ; it has a perfect right to make such a use of that part of the track, provided proper precautions are taken for the safety of travellers using the crossing.^ But as a matter of com- mon knowledge such a practice is peculiarly dangerous, and there- fore creates a duty of unusual care on the part of the company. There should be abundant warning, not only by the usual signals of bell and whistle, but there should be a flagman near the track, or a watchman on thfe nearest approaching car to warn travellers who are near.^ In this as in other cases the exact measure of the com- pany's duty, and the question as to whether it has been discharged, is for the. jury;* though where a "flying switch "is made over a ^ Alabama, &c. R. Co. v. SammcTS, 68 Miss. 566; Woodward u. New York, &c. E. Co., 106 N. Y. 369; Bohanu. Milwaukee, &c, E. Co., 58 Wis. 30 ; 15 Am. & Eng. R. Cas. 374 ; 61 'Wis. 391 ; 19 Am. & Eng. E. Cas. 276 ; Hogan v. Chicago, &c. E. Co., 69 Wis. 139 ; 15 Am. & Eng. E. Cas. 439. ^ East Tennes.see, &o. R. Co. v. King, 81 Ala. 177; South, &o. R. Co. v. Shearer, 58 Ala. 672 ; Robinson v. Western, &c. R. Co., 48 Cal. 409 ; Kansas Pac. R. Co. a. Ward, 4 Col. 30 ; Illinois', &c.. E. Co. ■». Hammer; 72 111. 347 ; Chicago, &c. E. Co. 0. Taylor, 69 111. 461 ; Hathaway v. Toledo, &o. R. Co., 46 Ind. 25; Louis- ville, &c. R. Co. V. Schmidt, 126 Ind. 290; Kansas, &c. R. Co. v. Pointer, 14 Kan, 37 ; Linfield v. Old Colony, &e. R. Co., lOCush. (Mass.) 564; Hinckley c. Cape Cod.R. Co., 120 Mass. 257 ; Pennsylvania E. Co. V. State, 61 Md. 108 ; 19 Am. & Eng. R. Cas. 326 ; Kennedy ». North Mis- souri R. Co., 36 Mo. 351 ; Me Williams v. Detroit, &c. E. Co., 31 Mich. 247; Schind- ler V. Milwaukee, &c. R. Co., 87 Mich. 400 ; Cooper v. Lake Shore, &c. R. Co., 66 Mich. 261 ; Chicago, &c. R. Co. v. Garvey, ^8 111. 83 ; Hutchinson v. St. Paul, &c. R. Co., 32 Minn. 398 ; 19 Am. & Eng. R. Cas. 280 ; Bolinger v. St. Paul, &c. R. Co., 36 Minn. 418; 29 Am. & Eng. R. Cas. 408 ; Johiison v. St. Paul, &c. R. Co., 31 Minn. 283 ; 15 Am. & Eng. R. Cas. 467 ; Maginnis v. N. Y. Central E. Co., 52 N. Y. 215 ; Kissinger v. New York, &e. E. Co., 56 N. Y. 538 ; Barry v. N. ,Y. Central E. Co., 92 N. Y. 289 ; Brown v. New York, &c. R. Co., 32 N. Y. 600 ; 87 Am. Deo. 353 ; Sutton v. New York, &c. R. Co., 66 N. Y. 243 ; Kay v. Pennsylvania E. Co., 65 Penn. St. 269 ; Butler i>. Milwaukee, &c. E. Co., 28 Wis. 487 ; Bohan v. Milwaukee, &c. R. Co., 58 Wis. 30 ; 61 Wis. 391 ; 15 Am. & Eng. R. Cas. 374 ; Levoy v. Midland Ry. Co., 3 Ont. Rep. 623 ; 15 Am. & Eng. R. Cas. 478. The merp sounding of the whistle on an engine attached to a long train of freight cars moving backwards is not suffi- cient warning. Eaton, v. Erie E. Co., 51 N. Y. 544 ; McGovern v. New York, &c. E. Co., 67 Ni Y. 417 ; Chicago, &c. R. Co. V. Garvey, 58 111. 85 ; Illinois, &e. R. Co. V. Ebert, 74 111. 399. « Howard v. St. Paul, &c. E. Co., 32 Minn. 214 ; 19 Am. & Eng. R. Cas. 283 ; Bohan v. Milwaukee, &c. R. Co., 58 Wis. 30 ; 15 Am. & Eng. Cas. 374 ; Ferguson v. Wisconsin, &e. R. Co., 63 Wis. 145 ; 19 Am. & Eng. E. Cas. 285. Where a. train is backed over a crossing without any signal but the bell, and with a brakeman so placed that he could not see the cross- ing, the question ot negligence is one for the jury ; the mere ringing of the bell does not necessarily relieve the company of responsibility. Barry v. New York, &c. E. Co., 92 N. Y. 289 ; 13 Am. & Eng. E. Cas. 615. In this class of cases, as in all others,' the contributory negligence of the plaintiff is a complete defence. Clark u, Boston, 1518 NBGLIGESrCE. [CHAP. XVIII. crossing \vithout any notice being given, and no watchman or flag- man posted to give warning, it may be held as a matter of law that the company was negligent.'^ But the obligation to exercise care in such cases does not rest on the railroad company alone. A traveller approaching a railroad track crossing a highway is bound to exercise ordinary prudence, — such prudence as is fairly commensurate with the nature of the risk. If lie can see for a long distance up and down the track, he is bound to look to see whether a train is approaching ; and if the track can only be seen for a short distance, he is bound to look and listen for an ap- proaching train ; and where by the exercise of these senses he might have avoided the injury, no recovery can be had. No man has a right to depend entirely upon the care and prudence of others ; he is bound himself to exercise due care to prevent injury to himself from the lack of proper caution in others. . But if, after having looked and listened without seeing or hearing an approaching train, within a reasonable distance of the crossing, he is, by reason of a neglect of the defendant to blow the whistle or ring the bell at a reasonable distance from the crossing, run upon and injured, liability attaches therefor.? A person approaching a railway crossing is bound to &o. R. Co., 128 Mass. 1 ; Grethen v. Chi- 111. 114 ; 19 Am. & Eng E. Cas. 8.59 ; cago, &o. R. Co., 22 Fed, Eep. 609 ; 19 Illinoi.s, &o. R..Co. v. Buohes, 55 111. 379j Am. & Eng. R. Cas, 242 (person's tres- Chieago, &o. E. Co. v. StlH, 19 111 499 ; passing on the track). The que8);ion of Artz v. Chicago, &o. E. Co., 34 Iowa, 153; contributory negligence is for the jury. Bieseigel v. TS. Y. Central R. Co., 40 French v. Taunton, &o. B. Co., 116 Mass. N. Y. 9 ; Haight v. N. Y. Central E. Co., 837 ; Mahar v. Grand Trunk E. Co., 26 7 Lans. (N. Y.) U ; Eichardson v. N. Y. Hun, 32. But it is not negligent for a Central E. Co., 45 N. Y. 846 ; Hanover person to start across the track behind a R. Co. v. Coyle, 55 Perin. St. 396; Sweeney train standing still, at or near a crossing, v. Old Colony E. Co., 10 Allen (Mass.), and he has a right to presume that the 368 ; Butterfield v. Western R. Co., 10 train will not be started back without Allen (Mass.), 532; Chaffee k. Boston, &o. some signal or warning being given. Rob- E. Co., 104 Mass. 108 ; Eaton v. Erie R. inson J), Western, &o. E. Co., 48 Cal. 409; Co., 51 N. Y. 545 ; Cleveland, &c. E. Co. McWilliams v. Detroit, &c. Co., 31 Mich. v. Terry, 8 Ohio St. 670 ; Cleveland, &o. 274 ; Solen v. Virginia City, &c. R. Co., E. Co. v. Elliott, 28 Ohio St. 340 ; Penn. 13 Kev. 106. Compare Ferguson v. Wis- R. Co. v. Kathget, 28 Ohio St. 68. consin, &c. E. Co., 63 Wis. 146 ; 19 Am. In a case in Indiana, Cincinnati, &c. R. k Eng. E. Cas. 286 (question left to the Co. v. Butler, 103 Ind. 35; 23 Aji. &Eng. j"'y'- R- Cas. 262, the jury found that the train Delaware, &c. R. Co. ». Converse, in approaching was running at a rate of 139 U. S. 469 ; French v. Taunton, &o. E. speed prohibited by law, and that the Co., 116 Mass. 537; Hinckley D. Cape Cod, statutory signals were not given; they &o. E. Co., 120 Mass. 257; Robinson i). therefore brought in a verdict for the i)lain- Western, &c. R. Co., 48 Cal. 409. tiff, although he had not disproved the Emst V. Hudson Eiver R. Co., 39 N. charge of contributory negligence, the bur- Y. 61; Wabash, &o. R. Co. v. Wallace, 110 den of which proof was, according to the SEC. 323.J INJURIES AT HIGHWAY-CROSSINGS. 1519 know that he stands in the presence of a serious danger if he at- Indiana rule, upon him. The court re- versed the case because the defence of con- tributory negligepse had not been allowed. Mitchell, C. J-i said: "That it is di£S- cult, or requires extraordinary effort, at a particular place, to ascertain whether or not it is safe to aittempt to cross, does not excuse one who is familiar with the locality, and the danger surrounding it, from exer- cising care proportioned to the probable danger. Manifestly, whercjobstaclcs inter- pose which obstruct sight and sound, it is the plain dictate of ordinary prudence that the traveller on the highway should ap- proach the crossing with a degree of cau- tion much ab&ve that which would be required at a point where no obstacles intervened. While it is imperatively re- quired of those in charge of the train that Shey give the statutory signals when ap- proaching crossings, and while it ■ may be suRicieut to establish negligence against a railroad company to show that a train was run at a rate of speed prohibited by an ordinance, yet, inasmuch as signals given may, under the circumstances supposed, not be heard, or because through neglect or otherwise those in charge of the train fail to give them, the traveller who sus- tains an injury by coming into collision with the train will not be exonerated from the presumption of contributory negligence, if it appears that by the exercise of any degree of diligence which was, under the circumstances, reasonably practicable and available he might have avoided the in- jujy." Oinoinnati, Im- R. Co. v. Butler, X03 Ind. 33 ; 23 Am. & Eng. R. Cas. 262, 4Ming Bellefontaine, $iC. R. Co. v. Hunter, 33 Ind. 335 ; 5 Am. Rep. 201 ; Toledo, &c. R. Co. V. Shuckman, 50 Ind. 42 ; St. Louis, &c. R. Co., V. Mathias, 50 Ind. 65, See also Terre Hante, &c. R! Co. v, Clark, 73 Ind. 168 ; Terre Haute, &o. B. Co. v. Graham, 46 Ind. 239 ; 95 Ind. 291 ; In- dianapolis, (Sic. R. Co. V. Hamilton, 44 Ind. 76 ; Indianapolis, &c. R. Co. v. Carr, 35 Ind. 510 ; Baltimore, &c. R. Co. v. Wal- born, 127 Ind. 142; Louisville, &e. R. Co. V. Stommell, 126 l4id. 35, In the case qf Pannell v. Nashville, &c. R. Co. (Ala.), 12 So. Bep. 236, the plaintiff was injured while attempting to cross the track by passing between two cars not far Apart. It appeared that if he had looked, he could easily have seen the engine with stean up and that couplings of cars were being made. The court held that there was a clear case of contributory negligence. See also as upholding and applying the rule of the text : Lyman ». Philadelphia, &c. R. Co., 4 Houst, (Del. ) 583 ; Patter^ son If. Philadelphia, &c. B. Co., 4 Houat. ,(Del.) 108 ; Central B. Co. w. Dixpn, 42 fia. .327; Chicago, &c. E. Co. v. Dimick, 96 111. 42 ; Chicago, &(!. R. Co. v. Robin- son, 8 Brad. (111. App.) 140; Chicago, &e. B. Co. V. Hatch, 79 111. 137; Bockford, &c. R. Co. V. Byam, 80 111. 528; Sfe Louis, ,&c. R. Co. V. Dunn, 78 111. 197 ; lUinoLs, &c. R. Co. v. Ebert, 74 111. 399 j Illinois, &o. R. Co. v. Goddard, 72 111. 667 ; Illinois, &c. B. Co. v. Cragin, 71 111. 177 ; Chicago, &c. B. Co. v. Eyan, 70 111. 102 ; Haines ii. Illinois Central B. Co. , 41 Iowa, 227 ; Benton v. Central B. Co., 42 Iowa, 192; Spencer v. Illinois, &c. R. Co., 29 Iowa, 55 ; Carlin v. Chicago, &c. E. Co., 37 Iowa, 316 ; Lang i'. HoUi- day Creek E. Co., 49 loiya, 469; Dodger. Burlington, &o. E. Co., 34 Iowa, 279 ; Johnson 0. Canal, &e. B. Co., 27 La. An. 53 ; Murray v. Pontchartrain R. Co., 31 La. An. 490; Graws v. Maine, &c. R. Co., 67 Me. 100; Baltimore, &c. B. Co. v. Breinig, 25 Md. 378 ; Baltimore, &c. K. Co. V. Boteler, 38 Md. 568 ; Lewis v. Bal- timore, &c. B. Co., 38 Md. 588 ; Mayor, &c. of Baltimore v. Holmes, 39 Md. 243 ; Pittsburgh, &c. H. Co. v. Andrews, 39 Md, 329; McMahon v. Northern, &e. B. Co., 39 Md. 438 ; Freeh v. Philadelphia, &c. B. Co., 39 Md. 574; Ws,rren v. Fitch- burg B. Co., 8 Allen (Mass.), 227; Whee- lock V. Boston, &c. R. Co., 105 Mass. 203; Craig V. New York, &c. B. Co., 118 Mass. 431 ; Hinckley v. Cape Cod E. Co;, 120 Mass. 257; Wright v. Boston, &e. R. Co., 129 Mass. 440 ; Carney v. Chicago, &e. B. Co., 46 Minn. 220; Hutchinson v, St. Paul, &c. R. Co., 32 Minn. 368 ; Smith d. Minneapolis, &o. E. Co., 26 Minn. 419 ; Donaldson »■ Milwaukee, &c. B.'Co., 21 Minn. 293 ; Brown v. Milwaukee, &c. E. Co., 22 Minn 165 ; Abbott v. Milwaukee, &c. E. Co., 30 Minn. 482; New Orleans, 1520 NEGLIGENCE. [chap. XVIIt. tempts to cross it without the exercise of proper caution.^ He has no right to rely entirely upon the presumption that the company's agents who are operating a train will notify him of its approach. He is, as a prudent man, bound to "look andvlisten" and take such measures as common prudence in view of the danger and conse- quences of a neglect to do so suggests. The fact that he knows the ' time when regular trains are due at the crossing does not absolve N. Y. Superior Ct. 225; McGuire ». Hudson Kiver R. Co., 2 Daly (N. Y.), 76; Wylde V. Northern R. Co., 14 Abb. Pr. (N. Y.) N. s. 213; Poole v. North Carolina K. Co., 8 Jones (N. C. ) L. 840 ; Murphy v. Wil- mington, &o. E. Co., 70 N. 0. 487 ; Pitts- burgh, &c. E. Co. V. Krichbanio, 24 Ohio St. 119 J Cleveland, &o. K. Co. v. Craw- ford, 24 Ohio St. 631 ; Baltimore, &o. B. Co. V. Whittaker, 24 Ohio St. 642 ; Belle- fontaine, &c. JJ. Co. v. Snyder, 24 Ohio St. 670 ; Penn. R. Co. v Beale, 73 Penn. St. 504; Penn. R. Co. v. Ackerman, 74 Pean. St. 268 ; Penn. E. Co. ». Weber, 76 Penn. St. 157 ; Weiss v. Penn. R. Co., 79 Penn. St. 887; Gcntz'i). Philadelphia, &c. R. Co., 81 Penn. St. 274; Zeigler li. Railroad, 5 S. C. 221 ; Nashville, &o. R. Co. v. Smith, 6 Heisk. (Tenn. ) 174 ; Langhoff v. Mil- waukee, &c. R. Co., 23 Wis. 43 ; DulTy y. Chicago, &0.E. Co., 32 Wis. 269; Delaney V. Milwaukee, &o. E. Co., 33 Wis. 67 ; Striugham v. Milwaukee, &(!. R.Co., 33 Wis. 471 ; Haas v. Chicago, &c. R. Co., 41 Wis. 44 ; Roth v. Milwaukee, 21 Wis. 256; Davey v. London, &o. Ry. Co., 122 B. Div. 70 ; Holland v. Chicago, &c. R. Co., 18 Fed. Eep. 243, ^ " A traveller should always approach a railway crossing under the apprehension that a train is liable to come at any mo- ment, and while he may presume that those in charge of the train will obey the law, by giving the statutory signals, the law nevertheless requires that he obey the instincts of self-preservfltion and not thrust himself into a situation of danger which, notwithstanding the failure of the railroad, he might have avoided by the careful use of his senses." Cincinnati, &c. E. Co. V. Butler, 103 Ind. 35 ; 23 Am. & Eng. R. Cas. 262. See also Chicago, &c. R. Co. V. Still, 19 111. 499 ; 71 Am. Dec. 236 ; Railroad Co. v. Houston, 95 U. S. 702. &c. R. Co. V. Mitchell, 52 Miss. 808; Leiiix I). Missouri Pacific R. Co., 76 Mo. . 86 ; Kelley ». Hannibal, &c. R. Co., 75 Mo. 138 ; Zimmerman v. Hannibal, &c. R. Co., 71 Mo. 476 ; Henze v. St. Louis, &n. R. Co., 71 Mo. 636 ; Burham v. St. Louis, &c. R. Co., 66 Mo. 338 ; Maker v. Atlantic, &c. E. Co., 64 Mo. 267 ; Hicks V. Pacific R. Co., 64 Mo. 430; Harlan v. St. Louis, &e. R. Co., 64 Mo. 480 ; Fletcher V. Atlantic, &c. E. Co., 64 Mo. 484; Morris, &c. R. Co. v. Haslam, 33 N. J. L. 147; Blakeru. Receivers of N. J. Midland R. Co., 30 N. J. "Eq. 240 ; Palys «. Re- ceiver of Erie R. Co., 30 N. J. Eq. 604 ; Penn. R. Co. v. Righter, 42 N. J. L. 180 ; Havens v. Erie R. Co., 41 N. Y, 296; Baxter v. Troy, &c. R. Co., 41 N. Y. 502; Nicholson v. Erie R. Co., 41 N. Y. 525 ; Van Schaick v. Hudson River R. Co., 43 N. Y. 527 ; Gorton v. Erie E. Co., 45 N. Y. 660; Davis v. New York, &c. B. Co., 47 N. Y. 400 ; Hackford v. New York, &c. R. Co., 53 N. Y. 654 ; McCall ■». New York, &c. E. Co., 54 N. Y. 642 ; Weber v. N. Y. Central R. Co., 58 N. Y. 451 ; Wilcox V. Rome, &c. R. Co., 39 N. Y. 358 ; Mac- key V. N. Y. Central E. Co., 35 N. Y. 75; Becht V. Cobin, 92 N. Y. 658; Massoth v. Delaware, &c. Canal Co., 64 N. Y. 524 ; Brooks V. Bufialo, &c. R. Co., 1 Abb. App. Dec. 211; Montz v. Second Ave. R. Co., 3 Abb. App. Dec. 274 ; Mitchell v. New York, &c. R. Co., 5 T. & C. (N. Y.) 122 ; 2 Hun, 535 , IngersoU v. New Yprk, &o. R. Co., 4 Hun (N. Y.), 277; Morse v. Erie E. Co., 65 Barb. 491 ; Bunn v. Dela- ware, &c. R. Co., 6 Hun (N. Y.), 303 ; Bronck v. New York, &o. R. Co. , 5 Daly (N. Y.), 454 ; Staokus v. New York, &c. E. Co., 7 Hun (N. Y.), 559 ; Gonzales v. New York, &c. R. Co., 6 Robt. (N. Y.) 93; 38 N. Y. 440; Sutherland v. New York, &c. R. Co., 41 N. Y. Superior Ct. 17 ; Leonard v. New York, &c. E. Co., 42 SEC. 323.] INJURIES AT HIGHWAY-CKOSSINGS. 15121 him from this duty, as he is bound to know that these trains may be delayed, or that the company has a right to run special or extra trains, etc. This is a rule of law, and it is only in exceptional instances that the question as to whether his neglect to take such precaution is excusable, is for the jury.^ ' In Salter v. Utica, &c. K. Co., 75 N. Y. 278, on second hearing 88 K. Y. 42, the court went on to say that "while great speed in running a railway train is not in itself necessarily negligence, it may be an element giving force to other' facts tending to prove it, and explaining in a given in- stance the operation and effect of such other facts. It always bears, more or less upon the question of contributory negli- gence, and is an element of the entire trans- action proper to be proved, and when e.stablished may be considered upon any issue which it tends- to prove or explain. Powell V. N. Y. Central R. Co., 109 N. Y. 613 ; Cordee v. New York Central R. Co., 70 N. Y. 124; McGrath v. Del. & Hud. C. Co., 64 N, Y. 531. The court below, in Saltet v. Utica, &c. R. Co., 13 Hun, 187 ; 88 N. Y. 42, charged that if the course pursued by the deceased was one which persons of prudence would adopt under the same circumstances, he was not negligent in so doing, and that the standard by which his conduct was to be judged was that of an ordinarily care- ful, prudent man. It was held that this was the correct rule. Kellogg v. New , York Central R. Co., 79 N. Y. 76; Stackus V. New York Central R. Co., 79 N. Y. 468. In Loucks v. Chicago, &c. R. Co., 31 Minn. 526; 18 N. W. Bep. 651, the plaintiff driving across a railroad track was struck by a train of cars, the approach of which he did not discover until imme- diately before he drove his horses, across the track. DtCKiNSON; J., said: "The view of the track in both directions was partially obstructed, the evidence going to show that the plaintiff was mindful of the dan- ■ ger and watchful, according to his reason- able judgment, to avoid it; that at the time when he might first have seen or heard the train he had reason to suppose that no train was coming from that direc- tion, while his attention to the track in the opposite direction was more apparently necessary ; that the cars were even close at hand, running at a high rate of speed, and he in a place where he could not safely turn his horses, nor hold them before the passing train, — it is considered negligence was not conclusively imputable to the plaintiff by the law, but that it was for the jury to determine whether the plaintiff was negligent. We cannot, as an Impu- tation of the law, pronounce his conduct to have been negligence. Kellogg v. N. Y. Central R. Co., 79 N. Y. 72 ; Conti- nental Imp. Co. V. Stead, 95 U. S. 161. To run a locomotive and train of cars, which cannot be readily stopped, at a high rate of speed, and without any sig- nal by bell, whistle, or otherwise, across a much-travelled public street in a village, where the crossing is dangerous to travel- lers by reason of obstructions concealing the approach of trains, no excuse appear- ing for the omission to give signal of its approach, is negligence, although there exists no statutory requirement respecting the giving of such signals. Fhila., &c. R. Co. v: Stinger, 78 Penn. St. 219, 225, 227 ; Louisville, &c. R. Co. v. Com.', 13 Bush (Ky.), 388; Phila., &c. R. Co. V. Hagan, 47 Penn. St. 244 ; Roberts v. Chicago, &c. R. Co., 35 "Wis. 680. It was not error for the court to charge that one who is called upon to exercise care to avoid danger from the acts of others may, in regulating his own conduct, have re- gard to the probable or apprehended con- duct of such other persons, and to the pre- sumption that they will act with reason- able caution and liot with culpable negli- gence. Ernst V. Hudson R. Co., 35 N. Y. 9 ; Reeves v. Delaware, &c. R. Co., 30 Penn. St. 454 ; Langhoff v. .Milwaukee, &c. R. Co., 19 Wis. 489; Kennayde ■.'. PaciBc R. Co., 45 Mo. 255. The court instructed the jury to disregard the opin- ions of expert witnesses, based upon hypo- thetical statements of facts, if the juiy should find the hjrpothesis to be not in 1522 NEGLIGENCE. [CHAP. XVIII. It is erroneous to charge the jury that a traveller is bound to exercise only such care as would protect him from injury if the rail- road company be free from fault.^ While he has a right to expect that the company will discharge its duties,^ it does not release him from his obligation to exercise ordinary care to protect hiiflself against a possible breach of its duty on the part of the company .^ A traveller is negligent in approaching and going upon a cross- ing in a wagon with his horses at a trot or at any rate of speed too great for him to stop his team readily should the circumstances necessitate it.* The instances in which the question whether an omission to look and listen for an approaching train constitutes negligence is for the jury, are well stated by Stiness, J., in a Ehode Island case,^ as fol- accordanoe with the facts. It was held no error. The plaintiff, having been a farmer for many yearii, and engaged in canying on a farm, was competent to testify as to the value of his own labor. It was a proper subject for the opinion of witnesses." See this case distinguished in Rhenier v. Chicago, &o. E. Co., 36 Minn. 172. See also State i: Maine Cen- tral R. Co., 76 Me. 357, where the rule stated in the text was held. 1 Toledo, &c. E, Co. v. Shuckman, 60 Ind.i42. See also Wabash, &o. R., Co. v. Wallace, 110 111. 114; 19 Am. & Eng. B. Cas. 359 ; Pennsylvania R. Co. v. Ogier, 85 Penri. St. 60 ; 78 Am. Dec. 322. ^ Kennayde v. Missouri Pac. R. Co., 45 Mo. 255 ; Donohue v. St. Louis, &c. E. Co. (Mo.), 28 Am. & Eng. R. Cas. 673; Newson v. N. Y. Central R. Co., 29 N. Y. 390 , Wabash, &c. R. Co. v. Cen- tral Trust Co., 23 Eed. Rep. 758. " Railroad Co. v. Houston, 95 U. S. 397 ; Cincinnati, &o. R. Co. v. Butler, 103 Ind. 35 ; 23 Am. & Eng. R. Cas. 262 ; Shaw v. Jewett, 86 N. Y. 616 ; Schofield v. Chicago, &c. R. Co., 2 Mc- . Crary (U. S.), 268 ; 114 U. S. 618 ; Chi- cago, &c R. Co. ■•). Natzki, 66 111. 465 ; Hinckley v. Cape Cod R Co., 120 Mass. 257; Ormsbee v. Boston, &c. R. Co., 14 R. I. 102 i Marty v. Chicago, &c. R. Co., 38 Minn. 108.' See also Weyl v. Chicago, &c. R. 'Co., 40 Minn. 350. A traveller has no right to omit proper precautions, upon the assumption that a railway com- pany will comply precisely with a city ordinance in the running of its trains. Calligan v. N. Y. Central E. Co., 59 N. Y. 661. * Mantel v. Chicago, &c. R. Co., 33 Minn. 62 ; 19 Am. & Eng. E. Cas. 362 ; Grippen .v. New York, &c. E. Co., 40 N. Y. 34 ; Connelly v. N. Y. Central R. Co., 88 N. Y. 346 ; Snows v. Maine, &c. E. Co., 67 Me. 100 ; Salter v. Utica, &c. R. Co., 75 N. Y. 28i. "There is no rule," said the court in this last case, " which authorizes a person who crosses a railroad track with a team of horses to dash on recklessly or even carelessly into danger without using all the means at his command to avoid the catastrophe; and no careful man will place himself in a position where, by want of vigilance, or by indiscretion, his team is not under his control." But in Cosgrove v. New York Cent. R. Co., 87 N. Y. 88, it was held that if a traveller upon a highway crossing a railroad is himself free from fault, and does not hear an approaching train and, the railroad company-is guilty of negligence in not giving the proper sig- nal's, it cannot escape responsibility be- cause the traveller's horse, frightened by the sudden approach of the engine, sud- denly starts forward, and getting beyond, control, draws the wagon on the track,' and so exposes the traveller to injury. It is not a legal inference that the traveller heard the approach of the train because the horse did. ^ ' Ormsbee v. Boston, &o. E. Co., 14 R. I. 102. In this case a deaf mute was SEC. 323.] INJUKIES AT HIGHWAY-CEOSSINGS. 1523 lows : " We have been referred to numerous cases which, it is claimed, show that this is not a rule of law, but a matter of fact, the pro- priety or necessity of which is to be determined by the jury. An examination of these cases, however, shows that most of them are not in conflict with such a rule, but may be classed as exceptions to it, on the following grounds : 1. Where the mew of the track is 6b- strueted, and hence where the injured party, not bein-ff' able to see, is obliged to act upon his judgment at the time ; in other words, where compliance with the rule would be impracticable or unavailing.^ In struck and killed by a ti'ain of cars which was making a flying switch across a high- way. The engine had passed by, and the plaintiff walked in the highway on to the track, "bent forward, as an old man would walk, with his head bowed down, looking towards the^ engine." There was an unobstructed vieui of (he track for a . Imig distance in both Mreciions ; a gate was closed across the highway on the farther side. of the track; but there was no station^ a/ry bell or whistle sounded as required by the statute. In an action against the rail- road company for causing the death, it was held tji?.t the deceased's negligence pre- cluded a recovery. 1 Commonwealth ». Fitchburg B. Co., 10 Allen (Mass.), 189; Craig a. New York, &o. E. Co., 118 Mass. 431 ; Webb V. Portland, &c. E. Co., 57 Me. 117 ; Johnson v. Hudson River R. Co., SO N. Y. 66 ; Continental Improvement Co. v. Stead, 95 U. S. 161; Pennsylvania E. Co. V. Ogier, 35 Penn. 60 ; Fordham 'v. Lon- don, &o. Ry. Co., L. E. 3 C. P. 368 ; Stubley v. tondon, &c. Ey. Co., L. E. 1 Exch. 13 ; Dublin, &c. Ey. Co. v. Slattery, L. E. 3 App. Cas. 1155. In Kelly V. St. Paul, &c. E. Co., 29 Minn. 1 , there was evidence tending to show that the statutory requirements as to ringing a bell, etc., were omitted on a train ap- proaching a highway-crossing; it was held tliat the neglect of a person approaching the crossing with a team, who did not stop his team and did not get out of his wagon and go forward and look for the train (freight cars intervening), could not be said to be contributory negligence on the part of the traveller, defeating his right of recovery for injury by collision with the train. Dickinson, J., said ; " The law required the ringing of a bell 80 rods 4istant from the crossing, and the conduct of the plaintiff might be properly regulated to some extent with regard to this duty imposed upon the defendant by law, and wliich he had a right to expect would be performed. He was not required to use every precaution which might have contributed to his safety, but only such as common prudence dictated. We cannot say, as a matter of law, that it was neg- ligence not to have entirely stopped his team, — Kellogg v. N. Y. Central R. Co., 79 Y. Y. 72 ; Eilert v. Green Bay E. Co,', 48 Wis. 606, — or that common prudence required him to get down from his wagon, and go forward on foot to look along the line of the track, Duffy v. Chicago, &c. E. Co., 32 Wis. 269; Davis «. N. ,Y. Cent. R. Cor, 47 N. Y. 400. Such precau- tion is believed to be extraordinary, and to exceed the strict measure of common pru- dence ; nor is it clear that the course of greater prudence, after the plaintiff had parsed in between the freight-cars stand- ing on both sides of his way, and saw the coming train, was not to endeavor to force a passage, rather than incur the per- haps greater hazard of attempting to turn back with a spirited span of horses." But see Plummer v. Eastern E. Co., 73 Me.' 591 ; although in this case the plaintiff did look and listen, and no signals were given, and in that view the decision is cor- rect. In Parker v. Wilmington, &c. E. Co., 86 N. C. 224, while crossing a rail- road track the plaintiffs intestate' was killed by a train which had left a station on schedule time and attained a speed of twenty miles an hour ; the deceased was working at a steam-mill located near the track ; when first seen by the engineer he 1524 NEGLT6EN0B. [chap. XVIII. this last case Lord Chancellot Cairns remarks : ' If a railway train, which ought to whistle when passing through a station, were to pass through without whistling, and a man were in broad daylight, and without anything either in the structure of the line or otherwise to obstruct his view, to cross in front of the advancing train and to be killed, I should think the judge ought to tell the jury that it was the folly and recklessness of the man, and not the carelessness of the company which caused his death.' ^ 2. IVkere the injured person was about 100 feet from the engine, and making no effort to get out of the way ; the engineer put on breaks and shut off steam, but gave no signal by bell or whis- tle. It was held that the contributory negligence of the deceased relieves the company of responsibility. One crossing a railroad track must be on the alert to avoid injury from trains that may happen to be passing ; and the omission of the en- gineer to give the precautionary signals of the approach of a train, when it in no way contributed to an alleged injury, does not impose a liability upon the company. See New Jersey Ex. Co. v. Nichols, 3 N. J. L. 439 ; Railroad Co. v. Houston, 95 U. S. 697. In the case of Hutchinson v. St, Paul, &o. R. Co., 32 Minn, 368, in an action to recover damages for injuries from a collision at a railway crossing with the wagon in which plaintiff was riding, her evidence tended to show that the team was driven with care, and that the plaintiff and the driver were watching the road, andlooking and listening for in- dications of danger as they approached the crossing ; that they heard no signal, and had no warning of the approach of an engine from the west, but were unexpect- edly overtaken by a switch engine from that direction, ruiming backward 4own grade at a high rate of speed, with steam shut off, and without signals of its approach, which they did not discover till too late to avoid a collision. They were going east, the railroad being on their left, and ap- proaching the street at a sharp angle, and above there was a out which partially ob- scured the vision, terminating about 206 feet from the crossing. The evidence also shows that they had previously looked several times up the road in that direction, the last time' when at a point from 50 to 70 feet from the crossing, and in the inter- val of about ten seconds they were listen- ing for signals or indications of a coming train, their attention being also arrested by the presence of another switch engine standing below the crossing apparently ready to move. It was held that whether the plaintiff was in the exercise of that degree of care which persons of ordinary prudence and intelligence would exercise in a similar situation depends upon the con: sideration of a variety of circumstances and inferences of fact which were proper for the judgment of a jury. Vanden- BUiiGH, J., said: "And for substantially the same reasons that controlled the deci- sion of this court in Loucks v. Chicago, &c, R, Co., 31 Minn. 530, we think this case was properly submitted to the jury. French w. Taunton Branch R, Co., 116 Mass, 540; Chaffee v. Boston, &o. R. Co,, 104 Mass, 116; Stackus v. N. Y, Central R, Co,, 79 N, Y. 467; Ochsenbein v. Shapley, 85 N. Y. 224; "Baldwin v. St. Louis, &c. R. Co,, 63 Iowa, 210; 18 N. W. Rep. 884; Butler v. Milwaukee, &c, R, Co., 28 Wis, 504; Gay nor v. Old Colony, &c, R, Co., 100 Mass. 212." See also Loucks V. Chicago, &o. R. Co., 31 Minn. 530; Continental Co. f. Stead, 95 U. S. 161; Wylde V. Northern R. Co,, 53 N. ¥.161; Eppendorf v. Brooklyn City, &c. R. Co., 69 N, Y. 197; Owen v. Hudson River R. Co., 35 N, Y, 518, ' This view of the case seem9 eminently reasonable, and has an added force from the high source from which it emanates. In Iowa, however, the rule is laid down that ' ' the plaintiff cannot be deemed to be necessarily guilty of contributory neg- ligence if the danger might have been seen, and avoided if seen. Somewhat de- pends upon the duty which the injured SBC. 323.] INJUEIES AT HIGHWAY-CEOSSINGS. 1525 was a passenger going to or alighting from a train, and hence under an implied invitation and assurance by the company to cross the track in safety,^ 3. Where the direct act of some agent of the company had put the person off his guard and induced him to cross the track without precaution."^ The measure of care to be observed in tbe running of trains is a question for the court, but the place and method of giving signals is a question for the legislature. The court can neither add to or de- tract from the requirements 6f the law. Its provisions must be strictly and fully observed, and any failure, however slight, that results in injury to others, is actionable. The duty of the company in that respect is fixed, and its duty is discharged .when strictly com- plied with. The common law imposes no burden so far as the giviug of signals is concerned ; it simply imposes the duty of, operating the road with due regard to the rights and safety of the public.^ A person was discharging, and somewhat upon the obviousness of the danger. The fact inquired about was not. then, necessarily, of a determinative character. It was nevertheless a very important fact. It should properly have a large influence. " Baldwin v. St. Louis, &c. R. Co., 61 Iowa, 210; 19 N. W. Kep. &9,i, following Green- leafy. Dubuque, &c. E. Co., 33 Iowa, 59. 1 Brossell v. N. Y. Central R. Co., 84 N. y. 241; Gaynor v. Old Colony, &o. R. Co., 100 Mass. 208; Chaffee v. Bo.ston, &c. R. Co., 104 Majis. 108; Mayo v. Bos- ton, &o. R. Co., 104 Mass.' 157; Wheelock V. Boston, &c. R. Co., 105 Mass. 203; Stapley v. London, &c. Ry. Co., L. R. 1' Exchq. 21. 2 Warren v- Fitchburg R. Co., 8 Allen (Mass.), 227. In the case of Connelly V. N. Y. Central R. Co., 88 N. Y. 346, the plaintiff's intestate was killed while crossing the defendant's track with his team at a highway-crossing. At the place of the accident four tracks crossed the highway. The train was approaching from the west, intestate from the north. At a point in the highway more than 250 feet north of the crossing the train was visible for half a mile, and at a point fi^ty feet north for more than a mile. When wit- nesses for the plaintiff, who were north of the track, first saw the train, the intestate was sitting on his load facing partly east at a distance from the track variously estimated, but the shortest distance named was fifteen feet. The train was on the south track. The. deceased continued to drive on until he got upon the north track. Then, observing apparently for the first time the approaching train, he partly rose, and commenced whipping his horses. The horses got over the south track, but the wagon was intercepted by the train and the intestate killed. If he had stojiped on the north track he would have been safe. The horses were not unmanageable, and he might have stopped them at this point, so far as appeared. The approach to the track from the north was on a rising grade of about one foot rise to eleven feet horizontal. It was held that the intestate was guilty of contributory negligence, pre- cluding a recovery for his death. Even though his misjudgment in attempting to cross in front of the train was not sufficient to charge him with negligence, on the ground that when he discovered the train he was called upon to decide instantly what he should do, /te wins iiegligml in not slop- ping his horses before he went oji to the track. 8 Grippen v. N. Y. Central R. Co., 40 N. Y. 34; Beiseigel v. Same, 40 N. Y. 9 ; Penn. R. Co. v. Barnett, 59 Penn. St. 259; Brown v. Milwaukee, &o. R. Co., 22 Minn. 165. Where a person seeks to charge a railway company with negligence in not seasonably removing a car which encumbered' a highway-crossing, and in 1626 NffiGLIGBNCE. [CHAP. XVIII. , traveller must use his eyes and ears as a prudent man, and cannot Ronsequence of which an accident occurred to the plaintiff, an instruction by the court that if the jury should find that the servants of the company honestly believed they could not move the ear without help, and that they exercised ordinary care and prudence in that judgment, they are not guilty, was held to be sufficiently favorable to the defendant. Paine v. Grand Trunk R. Co., 68 N. H. 6H. An engine-driver in charge of a moving train has a right to assume that persons past the age nf child- hood will heed the usual alarm signals. If, after giving such signals withdut effect, he uses such means as in his judgment are, in the emergency, most advisable' to prevent collision with a person standing on the track, he is not chargeable with negligence, and the company cannot be held liable for the consequences of a cail- lision, although he failed to use other means which were at hand, provided he is competent and experienced in his busi- ness. In this instance he applied the air-teakes to the train,' but did not attemirt to reverse the engine. Bell v. Hannibal, &c. R. Co., 72 Mo. 50. The fact that the defendant has been guilty of negligence, followed by an accident, does not make him liable for the resulting injury, unless that was occasioned by the negligence, Harlan v. St. Louis, &c. R. Co., 66 Mo. 22. Evidence that the company, imme- diately after an accident at a street- crossing, adopted certain precautions to lirevent similar accidents, is admissible to prove that such precautions would have heen proper at and prior to the accident, and that the omission of them was neg- ligence. Shaber w. St. Paul, &o. E. Co., 28 Minn. 108. Where a person driving a team in a city on a very cold and blus- tering day, being muffled up to protect himself from the severity of the cold, while driving across a track near a public elevator was struck by a car being pro- pelled by an engine in the rear, and severely injured, and there was no one stationed on the car or on the ground to give warning, and it appeared, it there had been, the injury might have been avoided, it was held that, as the injury was the result of negligence on the part of the company, it was liable iii damages to the injured party. Illinois Central R. Co. v. Ubert, 7i IIL 399. In an action against a railway company for injuries caused by a train colliding, at a highway-crossing, with a carriage in which the plaintiff was driving in the daytime, it appeared that the plaintiff in at1;empting to cross was struck by a freight-oar which had been separated from the vest of the train for the purpose of making a running switch. The plaintiff's testimony tended to show that she was driving with care, and saw the train pass, but saw no flagman and re- ceived no warning that another car was coming. At a point forty-six feet from the crossing she could have 'seen along the track forty-six feet in the direction from which the car came ; at thirty feej; from the crossing she could have seen the track' for more than half a mile, but she did not look in that direction from those points, and gave as a reason therefor that she did not suppose that one train would follow another so closely. It was held that the question whether the plaintiff was in the exercise of due care was for the jury. French v. Taunton Branch R. Co., 116 Mass. 637. In an- other case the plaintiffs evidence showed that -he was employed by a corporation other than the defendant to watch the track at a crossing and give notice when any cars or engines of .either company were about to pass over the highway j that he saw the smoke of the engine when it first came in sight, went to the crossing and gave the usual signal ; that after the engine passed he look«i up and down the track and saw nothing, and started to recross the track and was struck by a train of cars which was making a flying switch, and which came upon him from behind ; that the usual signal for cars making a flying switch was not given, but one was given indicating that only an engine or a train was coming, and there was no brake- man on the cars ; that a person could see up the track from where he stood nearly seven hundred feet ; that he could not tell whether einy smoke prevented him from seeing the cars coming, but if it did, he should have waited until it passed SEC. 323.] INJURIES AT HIGHWAY-CKOSSINGS. 1527 recover for injuries resulting from a failure to do so.^ But if the company has made erections, or left cars in such a position as to obstruct the view of the track in one direction, the traveller will be excused from looking in that direction. He is only bound to look where to, do so would aid him in determining whether a train is ap- proaching ; in all other respects he has a right to rely upon his ears.'^ away. It was held that the action could not be maintained. Clark v. Boston, ' &c. R. Co., 128 Mass. 1. If the statute requires gates to be erected and closed at the approach of a train, if this duty is not performed, and a passenger along the highway in attempting to cross the line of railway is injured, the leaving of the gates open is, in an action brought by Jiini, evidence of negligence to go tp the jury. It is so, even though, with care and circumspection, he might have, been able to see at a distance the approach of the train which occasioned the injury. The gates of the railway, at a place where it crossed the highway at a level, being open, amounted to a statement and a notice to the public that the line at that time was safe for crossings, Northeast- ern Ry. Co, V. Wanlfess, L. R. 7 Eng. & Ir. App. 12 ; Wanlesa v. Northeastern By. Co., L. R. 6 Q. B. 481. The lookout upon an engine must be as efScient as cir- cumstances require, and especially so when the chances of access to the track are greater than usual. Marcott v. Mar- quette, &c. R. Co,, 47 Mich. 1; East Tenn., ka. R. Co. V. White, 5 Lea (Tenn,), .540. Where -, train of cars was moving back- wards, within the limits of an incorporated town, while the deceased was walking on the track in the direction in which the train was moving, and no person was sta- tioned to keep a lookout, and the cars ran over and killed the deceased, the company is guilty of negligence. Savannah, &c. R.,Co. V. Shearer, 5S Ala, 672, 1 Baxter v. Troy, &c. R, Co,, 41 N. Y. 502 J Nicholson ii. Erie E. Co., id. 525. 2 MoGnire v. Hudson River R. Co.,, 2 Daly (N. Y,), 76 ; ShaW v. Jewett, 88 N, Y, 616. While a person about to cross is bound to look and listen, it is only where it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that the jury, in the absence of other evidence, is authorLied to find that his failure to look and listen was necessarily negligence, Sraedis v. Brooklyn, &c. R, Co., 88 N, Y, 13. Where a person, when approaching a railroad crossing* looks and listens for an approaching train before passing a corn- field which obstructed the view, and aft^r passing the same again looks and listens, and no warning is given him by bell or whistle, hS will not be guilty of neg-, ligence in going upon the track ; and the fact' that he is told to stop, that the cars are coming, which he does not" hear, will not change the rule, Dimick V. Chicago, &o. R.,Co., 80 111. 888. It .appearing that the plaintiff, before going through the opening in the train and upon the track where the accident oc- curred, brought his horses to a walk, but did not stop them nor leave his wagon and go forward where he could see an approach- ing train ; that he looked and listened for a train, but could not see or hear any sig- nal of its approach, — it was held that the evidence did not show, as a matter of law, contributory negligence on the part of the plaintiff, Kelly v. St. Paul, &o, R. Co., 29 Minn, 1. In Pennsylvania, it is held that if the traveller cannot see the track by looking out from his carriage, he should get but and lead his horse, Penn, R, Co,' v. Beale, 73 Penn. St. 504, Thus F, approached a crossing with which he was perfectly familiar, and with a manageable team. He drove by an open space, through which he had an extended view of the track, and stopped directly in front of a railwaywatch-house, which intercepted his view in the same direction. In this posi- tion he stood still for an instant, turning his head around as if looking for the train, ahd then whipped up his team as if to cross the track, and collided with a passing train aiid was killed. He was partially deaf, but did not leave the wagon to look 1528 NEGLIGENCE. [chap. XVIII. The rule is that the party who is at fault in creating the obstructions must use such care that, notwithstanding the. obstructions, the other party by the use of ordinary care would avoid either sustaining or inflicting any injury.^ But even in such cases it is the traveller's beyond the watch-house. It was held that he was guilty of contributory negligence, and the court should have instructed the jury that there could be no recovery. Central R. Co. v. Feller, 84 Penn. St. 226. In a. Michigan case, an old man, who was somewhat deaf, while driving a team of colts towards a railway, down a narrow road, from which the track was concealed on one side by a high embank- ment, stopped to listen, but hearing noth- ing drove on, and when close by the track a train appeared within a few rods. Fear- ing that be could not control his horses where they were, he whipped them up and tried to cross the track, and the rear of the buggy was struck by the engine. It was held that in an action for the resulting injury, the question whether the plaintiff was guilty of contributory negligence was for the jury. Chicago, &c. R. Co. ». Mil- ler, 46 Mich. 632. In another case a team collided with a train at a crossing, and the driver was killed. The track and the highway were both below the general surface of the ground, and an approaching train could only be seen occasionally by one driving towards the crossing. The driver was familiar with the crossing, but, except that he checked his team for a moment some four rods from the crossing, he did not appear to have taken any pre- caution. The whistle was sounded when the crossing was approt(ehed. It was held that the team-driver was chargeable with negligence, and that no action would lie for the injury. Haas v. Grand Rapids, &c. R. Co., 47 Mich. 401. The plaintiff was driving his wagon upon the street at a slow trot towards the railroad crossing, and upon approaching the track his horses were frightened by the passage of the Jooomo- tive, and ran away, throwing him from the wagon and seriously injuring him. It appeared from the evidence of the plaintiff that the street was built up on each side, and lined with piles of lumber in such a manner that a train could not be seen until the plaintiff approached very near to it ; and also, that the engine-bell was not rung, as required by statute. It was held that the evidence failed to show contrib- utory negligence. Strong v. Sacramento, &c. R. Co., 61 Gal. 326. In another case, plaintiff and his companions, being stran- gers in E., were ignorant of the existence of the defendant's railroad. At the close of the plaintiff's case there was no evi- dence to show that plaintiff could have seen the train, as it approached the cross- ing, in season to avoid the accident, except that other people in different local- ities, near where the collision occurred, heard and saw the approaching train in tinje to have avoided the accident. It was held that a non-suit was properly refused. The fact that plaintiff and his companions were strangers in Eureka, and did not know they wei-e apprdaching a railroad crossing, was an important fact to be con- sidered by the jury. Cohen v. Eureka, &c. R. Co., 14 Nev. 376. The caution- board is for the purposes of notifying those who are passing; aud where a party is familiar with the crossing, and has fre- quently been over it, and had it in mind on the occasion In question as he ap- proached it,, he cannot be said to have been injured by the failure to set up the sign-board. Haas v. Grand Rapids, &c. R. Co., 47 Mich. 401. While it is the duty of persons crossing or attempting to cross a railway to exercise proper care and caution, it is also the duty of the railway employes, or those in charge of the train, to exercise such care and caution at such places as to prevent injury to those travel- ling on public highways. The duty in this regard is reciprocal. Louisville, &o. R. Co. V. Goetz, 79 Ky, 442 ; Penn. Co. v. Krick, 47 Ind. 868. 1 Thomas v. Delaware, &o. R. Co., 19 Blatch. (U. S.) 588; 8 Fed. Rep. 729; Mackey v. New York, &o. R. Co., 35 N. Y. 75 ; Klsaenger v. N. Y. Central R. Co., 66 N. Y. 538 (empty cars left on the track so as to obstruct the view). And where the company obstructs the crossing SEC. 323.] INJUKIES AT HIGHWAY-CKOSSINGS. 1529 duty to use care proportioned to the /circumstances. Thus, where his entire view of the track is obstructed until within six feet of the crossing it is his duty to stop at that limit and look and listen, if he does not his negligence is a bar to his action.' And when the proper signals are given, if a traveller ventures upon the track, and miscal- culates as to the chances of crossing, the risk is his, unless some negligence can be imputed to the company which has directly caused the injury ,2 — as,, if the rate of speed is fixed by a city ordinance, if the company is running at a higher rate ; ^ or, if the train is being run at much more than its usual speed at the point in question.* The duty of the company extends to all travellers on the highway alike, — to the pedestrian as well as to those riding or driving.^ . But as has been observed in a leading case, it is within the personal ex- perience of every one that as a rule the exercise of ordinary care will always enable a foot passenger to cross in safety, particularly in the daytime, and under such circumstances it requires a very strong case to authorize a recovery ; ^ and unless such a case is made out the court may direct a verdict for the defendant. The rule that the traveller about to cross a, railroad track should with its trains, it must nse special care towards thpse who, in order to pass, are compelled to go around the end of the train and over a private crossing. Brown V. Hannibal, &c. R. Co., 50 Mo. 461 ; 11 Am. Rep. 420. 1 Clark V. , Northern Pac. E. Co., 47 Minn. 380. See also Beaustrom v. North- ern Pac. B. Co., 46 Minn. 193. 2 Chicago, &e. R. Co. v. Fears, 53 111. 115 ; "Van Schaick v. Hudson River R. Co., 43 N. t. 527 ; Bellefontaine R. Co. v. Hunter, 33 Ind. 335. s Madison, &c. R. Co. ii. Taffe, 37 Ind. 364 ; Cincinnati, &c. R. Co. o. Butler, 103 Ind. 35. * Eichardson v. N. Y. Central E. Co., 45 N. y. 84; Wabash, &o. R. Co. v. Henks, 91 111. 406. ° Cheney v. New York Central K. Co., 16Hnn(N.Y.),415. « Cordell !). N. Y. Central R. Co., 70 N. Y. 119, 125. A traveller approaching a railroad crossing guarded by gates is not required to exercise the same vigilance in looking and listening as when the ap- proaches are not so guarded. Palmer v. Railroad Co., 112 N. Y. 234 ; Eodrian v. VOL. II. — 46 Railroad Co., 125 N. Y. 526 ; Oldenburg V. Railroad Co., 124 N. Y. 414. Thus,' in an action to recover damages for in- juries alleged to have been received' by the plaintiff through the defendant's negli- gence, these facts appeared. The plaintiff was driving along a highway, which crossed the defendant's tracks, in an open wagon ; the crossing was protected by gates on each side of the railroad ; as the plaintiff approached the tracks he found the gates closed ; a train passed, the gates were opened and he started on, but after he had passed the first gate, both were again closed so that escape was impossible; he was struck by another train and was injured. It was dark at the time of the accident, and the train which had passed obstructed the view of the approaching train, the plaintiff and his witnesses testified that they neither heard or saw the latter until a moment before the collision. It was held that the question as to the plaintiff's contributory negligence was properly sub- mitted to the jury. Kajje v. New York, &c. E. Co., 132 N. Y. 160. See also, as to the statement of the text, State v. Balti- more, &c: R. Co. (Md.)i 21 Atl. Rep. 62. 1530 NEGLIQEXCB. [CHAP. XVIII. stop, look, and listen before crossing is applied with much strictness by the Pennsylvania courts, which hold that the omission of any one of these precautions will constitute negligence which will bar an action for injuries sustained in the collision which the precaution would have averted.^ If such precautions were always adopted it is manifest such accidents, now so common, would be of rare occurrence, and their universal adoption is surely a desirable end. But the whole responsibility cannot thus be shifted on the traveller, and the com- ^ pany allowed an unrestrained use of the highway at the crossing ; the mutuality of the rights and duties of the parties is always to be kept in mind. It. has been well observed that " the stop, look, and listen rule cannot be correctly treated as an arbitrary standard of care to be inflexibly applied by the courts in all cases, but is rather a useful legal measure of ordinary care in cases where to have stopped, looked, or listened would have been to effectually guard against injury." ^ If the company defends on the ground of the con- tributory negligence of the traveller, it has the burden of showing the fact of such negligence, and that the observance of 'the neglected precautions would have prevented the injury ; for the. law does not presume a want of care in such cases.* The mere fact that the company did not ring the bell or blow the whistle will not excuse a traveller from looking and listening.* Nor 1 See Pennsylvania R. Co. ». Beale, 73 2 4 'Am. & Eng. Ency. Law, p. 946. Penn. St. 504 ; 13 Am. Rep. 753 ; Fenn- See also Fletcher v. Boston, &c. R. Co., 1 eylvania R. Co. v. Fortney, 90 Penn. St. Allen (Mass.), 9 ; 79 Am. Deo. 695. The 323'; Philadelphia, &o. R. Co. v. Boyer, feilure to stop, look, and listen cannot be 97 Penn. St. 91 ; Reading, &c. R. Co. v. considered where the proximate cause of Ritchie, 102 Penn. St. 425. The rule the injury was a defect in the crossing IS so stringent that it is held that " if which it was the company's duty to re- the traveller cannot see the track by look- pair ; as where the traveller was fm over ing out, whether from fog or other cause, by a train, when he could easily have he should get out, and, if necessary, lead crossed in safety had his horse's foot not his horse and wagon." Pennsylvania R. been caught in a hole in the crossing. Co. ■".Beale, 73 Penn., St. 504; 13 Am. Baughman v. Shenango, &o. R. Co.. 92 Bep. 763. In the same case, Sharswood, Penn. St. 335. J., speaking for the court, went on to say: i^ See post, this chapter, section on Ihere never was a more important prin- " Presumption of Negligence ; " Hough v. ciple settled than that the fact of the Railroad Co., 100 U. S. 216 ; Mobile; &c. failure to stop immediately before crossing R. Co. v. Crenshaw, 65 Ala. 569 : Louis- a ra,ilroad track is not merely evidence of viUe, &c. R. Co. v. Goetz, 79 Ky. 442 • 42 negligence for the jury, but negligence Am. Rep. 227 ; Bacon .•. Baltimore, &c. per se and a question for the court. " And R. Co., 58 Md. 482 j Cleveland, &c. R. Co. see Pennsylvania R Co. v. Weber, 76 v. Crawford, 24 Ohio St. 631 ; 15 Am. l-enn. St. 157 ; 18 Am. Rep. 407. See Rep. 633; Cassidy v. Angell, 12 R. I. 447 ; the doctrine of the Beale case opposed in 34 Am. Rep. 690. ^rlZlv' \^r'',*«- «• C°' (Mo.), * Gorton v. Erie R. Co., 45 N. Y. 660;' 28 Am. & Eng. li. Ca^. 659. Havens v. Erie R. Co. , 41 N. Y. 296. SEC. 323,j DUTY OF TBAVBLLEES AT HIGHWAY-CBOSSINGS. 1531 does the fact that they did ring the bell or blow the -whistle excuse from liability where, in other respects, — as, in the rate of speed at which the train was being run in view of the particular crossing, — they were chargeable with blame.^ But a traveller may assume that the- company will comply with the law.^ But if the company is bound to, or usually does, keep a flagman at the crossing to warn persons of approaching trains, its neglect to do so, or a false signal given by the flagman, whereby an injury happens to^a person at- tempting to cross, will render it liable for injuries resulting, although the train was in plain sight.^ A railway company is not, as a rule, ih the absence of a statute requiring it, or of an ordinance of a municipal corporation, bound to maintain gates at a crossing, or to keep a flagman there to warn travellers of the approach of trains.* But under the maxim sic utere tuo, etc., instances may arise where this duty is cast upon them, or of providing some othey equally safe mode, by reason of -the loca- tion of the crossing and the largie numbet of people crossing it, or where the mode of crossing adopted by the company is exception- alljr dangerous ; ^ 'and although it is held by some of the cases that the" question as to the duty to keep a flagman, or to adopt some other equally effectual mode of warning travellers of the approach of a train, is not a matter for the caprice of jurors,® yet it is difficult to understand how, or under what authority, the court can with- draw the question from the jury, and usurp to itself the power trf detemine a question which is one of fact ; and it is believed that the question is a mixed question of law and fact which the jury 1 Eichardsom). N. Y. C. R. R. Co., 45 -Delaware, &c. R. R. Co. v. Toffey, 39 S. Y. 846. N. J. L. 525 ; Com. v. Boston, &c. R. B. 2 Kennayde v. Pacific. R.R. Co., 45 Co., 101 Mass.- 201 ; Shaw «. Boston, &c. Mo. 255. R. R. Co., 8 Gray (Mass.), 45 ; PMla., ' » Sweeney 1). Old Colony E.R. Co., 10 &c. R. R. Co. 0. Kellips, 88 Penn. St. Allen (Mass.), 368 ; Newson v. N. Y. C. 405 ; Stubley v. London, &c. Ry. Co., R. R. Co., 29 N. Y. 383; Spencer ». I/. R. 1 Echq. 13 ; Stapley' d. London, Illinois Central R. R. Co., 29 Iowa, 65. &c. Ry. Co., 4 H. & C. 93 ; Cliffy. Mid- * Ernst V. Hudson River R. B. Co., land Ry. Co., L. E. 5 Q. B. 258. 35 N. Y. 9 ; Sutherland v. New York s Penn. R. R. Co. v. Matthews, 37 Central E. E. Co., 41 N^. Y. Sup. Ct. 17 ; N. J. L. 531 ; Pollock v. Eastern E. R. Cu'lhane v. N. Y. Central E. E. Co., 60 Co., 124 Mass. 158. N. Y. 133 ; Pakalinsky v. N. Y. Central 6 Beiseigela. N. Y. Central R. R. Co., R. B. Co., 11 N. Y. Weekly Dig. 73 ; 40 N. Y. 9 ; Dyer v. Erie E. E. Co., 71 Grippen v. N. Y. Central R. B. Co., 40 N. Y. 228 ; Weber u. N. Y. Central R. R. K Y. 34; Slate «. Philadelphia, &c. Co., 58 N. Y. 451 ; State k. Phila., &e. R. R. Co., 47 Md. 76 ; McGrath v. N.. Y. E. E. Co., 47'Md. 76. Central, &c. E. R. Co., 63 N. Y. 522 ; 1532 NBGLIGBNOB. [CHAP. XVIII. must pass upon.^ And those cases whicli hold that the question as ,to the necessity of maintaining a flagman, etc., at a particular cross- ing is not for the jury, really nullify the rule, by holding that while the jury may not determine whether or not there is such a necessity, yet "they may consider the circumstance that such precautions are not taken, as a part of the res gestce, and bearing upon the question of the company's care or negligence in the management of its trains ;2 which is a direct repudiation of the rule itself, and involves the court in an absurd position j which always results when courts attempt to exercise legislative functions, rather than those which pertain to >the judiciary. As a railway company is liable to a party whom it leads intp danger, where it has voluntarily placed and kept a flagman at a crossing, it amounts to an admission that one is necessary there ; and if it withdrawsi him, persons knowing that one has formerly been stationed there have a right to expect that he will not be with- drawn ; and if, relying upon such expectation, they are induced to attempt to cross, and are injured, the company is liable therefor, if they were in the exercise of due care in attempting to cross.* It will be understood that while a railway company keeps a flagman, or maintains a gate or other precautions at a crossing, the traveller is not thereby relieved from all duty to look out for his own safety. He may not be called upon to use so high a degree of care as he would be except for such precautions on the part of the company, but he is nevertheless bound to use his senses, and do all which a prudent ' man, under the circumstances, would do to avoid the danger.* If a person in crossing a railroad track, in the exefcise of due care as to approaching trains, through no fault of his, gets the wheels of his vehicle caught in the track, so that he cannot extricate them in season to avoid injury from an approaching train, he is not charge- able with such negligence as will preclude a recovery for an injury 1 Baileys. New Haven, &c. R. R. Co., 588; Philadelphia, &o, R. R. Co. v. Kel- 107 Mass. 496. lips, 88 Penn. St. 405; St. Louis, &o. ' 2 Ernat v. HiidsOn River R. R. Co., 39 R. R. Co. v. Dunn, 78 111. 197. N. Y. 61 ; Casey v. N. Y. Central R. R. * Lake Shore, &c. R. R. Co. v. Sunder- Co., 78 TS. Y. 518. See also, involving land, 2 Brad. (111.) 307 ; "Warren v. Fitoh- the court in a still greater absurdity, Imrg R. R. Co., 8 Allen (Mass.), 227; Dyer v. Erie R, R. Co., 71 N. Y. 2?8. Wheelock v. Boston, &c. R. R. Co., 106 s Warner v. HT. Y. Central R. R. Co., Mass. 203 ; Borst v. Lake Shore, &c. 44 N. Y. 465 ; Dolan D..,DeL & Hud. C. R. R. Co., 4 Hun (N. Y.), 346 ; Dela- Co., 71 N. Y. 285 : MoGovem v. N. Y. ware, &o. E. R. Co. v. Toffey, 39 N. J. L. , Central R. R. Co., 67 N. Y. 417 ; KisSen- 525. ger V. New York, &o. R. R. Co., 56 N. Y. SEC. 323.J DUTY OF TEAVELLBES AT HIGHWAY-CEOSSINGS. 1533 to his team, if he properly endeavors to cause the train to be stopped.^ The mere fact that a person sees or hears an approaching train does not necessarily preclude him from a recovery, if he had ample time to pass except for the fact that the train was heing run at a much higher rate of speed than usual. The simple question is, whether, knowing, the usual length of time it took the train to reach the cross- , ing, as a prudent man he was justified in making the attempt.^ 1 Pittsburgh, &c. B. B. Co. v. Dunn, 56 Penn. St. 280 ; Milwauktee, &o. B. R. Co. V. Hunter, 11 Wis. 160. 2 Detroit, &c. E. E. Co. v. Van Stein- burg, 17 Mich. 99. Where a person ^ familiar with a dangerous railway cross- ing, in passing over the same, neglects the 'exercise of any care to ascertain if a passing train is near, and in conse- quence of such neglect is injured by a collision with the train, he is guilty of negligence, and the mere fact that he had forgotten that he was in the vicinity of the crossing will not excuse such 'neglect. Baltimore & Ohio B. B. Co. v. Whitacre, 35 Ohio St. 627. The general rule is, that a person approaching a railroad crossing is required to look up and down the track in either direction and wativh for the ap- proach of trains before attempting to cross, and if such precaution is neglected and injury to the party ensues, he cannot re- cover ; but this rule cannot be applied to an infant of tender years. Chicago & Alton E. E. Co. v. Becker, 84 lU. 483. But it cannot be declared as a matter of law that a footman is bound, before crossing a railway track to stop, in order to look and listen for trains. That rule is appli- cable only to persons travelling in wagons or other vehicles which make a noise that would necessarily interfere with their hearing. Zimmerman ti. Hannibal & St. Joseph R. R. Co., 71 Mo. 476. The fact that one in attempting to cross a railway does not, at the instant of stopping on it, i look to asoertain if a train is approaching, is not conclusive evidence of a want of care on his part. Plummer v. Eastern E. R. Co., 73 Me. 691. An . instruction that it is not necessarily the duty of a traveller approaching a railroad-crossing to stop and listen before stepping upon the track, and that whether it is necessary and proper for him to stop depends' on the circumstances of the case, is not erroneous. Shaber u St. Paul, &c. R. R. Co., 28 Minn. 103 ; Garland v. Chicago, &c. R. B. Co., 8 Brad., (111.) 571. The plaintiflf made out a, prima facie case of negligence without proving affirmatively .that the de- ceased had " stopped and looked and lis- tened." It was held that the presumption in law was that he had stopped, looked, and listened, and the burden of proving contributory negligence was on the defend- ant. Weiss V. Penn. E. R. Cp., 79 Penn; St. 387. While -a traveller on approach- ing a raUway-CTossing is bound to look and listen for an approaching train before undertaking to cross, it is only where it appears from the evidence tliat he might have seen had he looked, or might have ' heard had he listened, that a jury, in the absence of evidence upon the question, is* authorized to find that he did not> look, , and did not listen. Smedis v. Brooklyn, &o. R. E. Co., 88 N. Y. 13. The rule re- quiring perspns, before crossing a railroad track, to look to see whether trains are approaching is not applied inflexibly in all cases without regard' to age or other cir- cumstances. McGovern v. New York Central, &c. R. R. Co., 67 N. Y. 417. But in Pennsylvania the failure to stop immediately before crossing a railroad track is negligence per se, and' the rule is unbending. Penn. R. R. Co. v. Beale, 73 Penn. St. 504. Where a traveller, about to cross a four-track railway, looked and listened before starting across the track, it was held that a failure to stop and look and listen before crossing the fourth track was not negligence as a matter of law. Weber v. N. Y. Central & Sudson River E. R. Co., 67 N. Y. 587. In ah action for damages against a rail- way company for injuries received by a collision at a crossing, the following in- struction was given : " If you Relieve froin 1534 KEGLIGBNCB. [chap. XVIII. A person is not bound to stop his team, and listen or look for an approaching train before attempting to pass ; he is merdy hound to do that which is dictated by common prudence, in view of the peril to which he may be exposed. If he hears the signal, but cannot see the train, and does not know the distance at which it is from the cross- ing, as a prudent man he would be bound to wait until it passed, but if he is induced to cross by reason of a false signal given by a flagman, he cannot be charged with negligence; nor can he be" charged with negligence if he knows the distance at which the law requires the signal to be given by the train before it reaches the crossing, and is injured in attempting to cross, by reason of an in- creased rate of speed on the part of the train, or in consequence of a neglect to give the signal as early as it should have been given.^ ,the evidence that the plaintiff neither stopped his team nor made any effort to see or hear the train before he drove on the railroad track', and you further be- lieve that it he had stopped and looked he could have seen the train, or if he had listened he could have heard it, then he cannot recover." This instruction was held to embody the correct rule of lavf. Benton v. Central E. R. Co. of Iowa, 42 Iowa, 192. A per.son in crossing a rail- road track should look and see if a train is coming ; if he does not he cannot re- cover for an injury received, although the train that injured him was behind time about thirty minutes, and he was crossing the track to get on another train. Anderson v. Eailroad Co., 12 Phila. (Penn.) 369. The plaintiffs intes- tate was killed by a locomotive on the de- fendant's track while crossing its track on a village sidewalk. It was shown that up- wards of twenty-six feet before reaching the track the deceased could, by turning her head, have seen the approaching loco- motive for a long distance, and that there were no other trains or engines passing at the time. It was held, that the intestate was guilty of contributory negligence such as to avoid a recovery for hex death. Mitchell V. N. Y. Central R. R. Co., 64 N. Y. 655. The crossing v^ere the in- jury complained of in this action occurred was one with which the plaintiff was fa- miliar, and one which he had often passed. Above it was the usual sign, "Look out for the cars,'' printed in large letters, and at that place the highway and railroad were nearly on a level. Away from it at a distance of twenty rods in the direction from which the train in question came, was the depot nearest it in that direction. This ^tretch of track was in full view of the plaintiff while still six hundred feet from the crossing, and at thirty-three feet from such crossing one could see a distance of some twenty rods beyond the depot. If at any time after the train passed the de- pot the plaintiff had looked in that direc- tion he would have seen it ; and if not then too near the train for escape by stop- ping his horse, he could have avoided the accident. On a motion to nonsuit, it was held that thrise facts show contributory negligence on the part of the plaintiff, though the train was not a regular one, and no train was due at the time ; though it was moving at an unusual and danger- ous rate of speed ; though it did not stop at the depot as trains usually but not al- ways do ; and though no warning was given of its approach by blowing the whis- tle or ringing the bell after such depot was passed. Sohofield v. Chicago, Mil- waukee, & St. Paul E. R. Co., 8 Fed Rep. 488. • 1 Spencer v. HI. Cent. R. E. Co., 27 Iowa, 55; Havens v. Erie R. R. Co., 53 Barb. (X. Y.) 328. A person who ap- proaches the crossing with due care, and looks for the train as soon as looking could be of service, will not be deemed guilty of SBC. 323.] DUTY OF TBAVELLEKS AT HIGHWAY-CEOSSINGS. 1535 And when two trains are approaching, one of which can, and the other of which cannot be seen by the traveller, and there is plenty negligence in not stopping his team to ascertain if a train might be approach- ing. Mackay v. N. Y. Central R. Co., 36 IST. Y. 75 ; Broqks v. Butfalo, &c. K. Co., 2S N. Y. 600 ; Brendell „. Buttalo, &c. E. Co., 27 N. Y. 534 ; Salter v. Utica, &c. B. Co., 75 N. Y.,273. In Pennsyl- vania, it is held to be the duty of one attempting to cross a railway, to stop and look both ways and listen for approaching trains. If a traveller goes upon a track without negligence, and by a defect in the crossing, he is stopped on it, it is his duty to look out for a train, and use all his efforts to give notice to one coming, and to extri- cate himself as speedily as po.ssible. Lehigh Valley R. Co. o. Hall, 61 Penn. St. 361 ; Pittsburgh, Fort W., &o. R. Co. v. Dunn, 56 Penn. St. 280. But the general rule is that a traveller approaching a railway should do so cautiously and should observe the approach of trains, and the company should give timely warning of the approach of the train. Pennsylvania R. R. Co. v. Goodman, 62 Penn. St. 329; North Penn- sylvania E. R. Co. V. Heilraati, 49 id. 60; Haight V. N. Y. Central E. E. Co., 7 Lans. (N. Y.), 11; Hewett v. IST. Y. Central R. R. Co., 3 id." 83; Morse v. Erie R. R. Co., 65 Barb. (IT. Y.) 490; Gonzales «. New York, &c. R.R. Co., 39 How.^Pr. (N. Y.), 407, 38 N. Y. 440, reversing 6 Robt. (N. Y.) 93; "Wilds v. Hudson Ri^erE. B. Co., 24 N. Y. 430; McCall ;;. N. Y. Cen- tral R. R. Co.,' 54 N. Y. 642; Toledo, Peoria, & Warsaw R. R. Co. v. Riley, 47 111. 514; St. Louis, Alton, & Terre Haute' E. R. Co. V. Manly, 58 id. 300. Where a person, on approaching- such a crossing with a team, does not avail himself of his senses of sight and hearing, when iy the proper exercise of these, he could ha/ee avoided a collision, he will be regarded as unusu- ally negligent, though the hell was not continuously rung or the whistle sounded. Chicago & Rock Island R. R. Co. v. Mc- Kean, 40 111. 218. If it appears that, the deceased would have seen the approaching cars in season to have avoided them, had he first Woked before attempting to cross, it will be presumed that he did not look; and he will be deemed to have been guilty of contributory negligence. Wilcox v. Eome, Watertown, & Ogdensburgh R. E. Co., 39 N. Y. 358. At the intersection of a rail- way with a common road, there are con- current rights; neither the traveller on the highway nor the company has the exclu- siveVight of passage. North Pennsylvania R. R. Co. V. Heilman, 49 Penn. St. 60; Pittsburgh, Fort Wayne, & Chicago R. R. Co. V. Dunn, 56 id. 280; Warner v. New York Central R. R. Cc|., 45 Barf). (N. Y.) 299; Galena & Chicago Upion R. E. Co. v. Dill, 22 m. 264; Toledo & Wabash R. R, Co. V. Goddard, 25 Ind. 185. A' traveller upon a highway who knows that he is near a railway-crossing and yet does not look up to see if a train is coming, simply he- cause there is a storm and the travelling is bad, is guilty of such negligence as to pre? elude a recovery for an injury sustained by ^ him from a collision with a passing train. Butterfield v. Western E. E. Co., 10 Allen (Mass.), 532. One who approached a rail- road at a point in a town where he had often crossed, muffled in his coat within the covered top, of liis wagon, taking no notice of the railroad, and drove slowly upon the track without stopping or look- ing out, was guilty of negligence. Hanover E. E. Co. V. Coyle, 55 Penn, St. 396. It ' is not necessary to prove afBrmatively that a person injured when crossing a railroad on a public highway had stopped and looked up and down the railroad ; whether he used the proper precautions is to he deter- mined by all the circumstances of the case, Penn. E. R. Co. v. Weber, 72 Penn. St. 27. Where a person crosses a railway with a team, in ignorance of the approach of the cars, f/rhea the danger may be easily seen by looking for it, he is fairly, chargeable with negligence ; much more so, if he drives on to the track and there stops, looking in an opposite direction from an approaching train, until the engine comes , in contact with him, and thrown him off. Brooks V. Buffalo, &c. E. E. Co., 25 Barb. (N. Y.) 600. A person driving a heavy teamj on a foggy morning, over a railroad, without waiting to ascertain whether an approaching train was near, having been struek hy tiie engine and kUled, was held 1536 NEGLIGENCE. [chap. XVIII. of time for liim to cross the track before the train iu sight can reach the crossing, the fact that he might have seen the other train before he reached the track, except that he was watching the other train with a view to protecting himself from it, will not debar him from a recovery for an injury received from the train not seen by him. The very fact that two trains are permitted to cross a highway from opposite directions, both not being in plain sight for such a distance away that a traveller cannot see and avoid both, is negligence on the to have contributed to the act hy his own negligence. Haslan v. Morria & Essex E. R. Co., 34 N/ J. L. 147. In an action ■brought against a railroad company for negligently running over a passer-by at a crossing, it is error to grant a nonsuit, re- fusing to submit the question of concurring negligence on his part to the jury, merely because he did not look to see whether a train was approaching; if it appear that from the circumstances at the time, — for example, the state of the weather, — he could not have seen the train in time to avoid it. Hackford v. N. Y. Central R. R. Co., 13 Abb. Pr. n. s. (N. Y. ) 18. ' Where a person, knowingly about to cross a track, approaches it from a point where he may have an uuobstiiicted view of the railroad, and know of the approach of a train a suffi- cient time to clearly avoid an injury from it, he cannot, as a matter of law, recover, althpugh the company may also have been negligent iu omitting to perform a statu- tory requirement, or otherwise. But if the view was obstructed, or if there were circumstances calculated to throw a person off his guard, then, whether it was negli- gence on the part of the person undertak- ing to cross, is a question of fact for the jury. Artz v. Chicago, &c. R. R. Co., 34 Iowa, 153. No neglect of duty on the part of a railway company will excuse any per- son, approachi/ng on a highway a railway- crossing, from using the senses of sight and hearing, when these may be aviilahle. Bellefontaine R. R. Co. v. Hunter, 33 Ind. 335. A person is not, as a matter of law, bound to stop his team and look and listen before attempting to cross the track. He may have satisfactory and sufficient evi- dence to justify him in attempting to crpsa without this. Spencer v. Illinois Central B. R. Co., 29 Iowa, 55. Nor is a traveller required to stop, or if he is with a team, to go out and leave his vehicle and go to the track, or to stand up, and go upon the track in that position in order to obtain a better view. Davis v. N. Y.> Central, &c. R. E. Co., 47 N. Y. 400; Duffy 1J. Chicago &, Northwestern R. R. Co., 32 Wis. 269. A plaintiflF, approaching a crossing, and stopping from four to .six rods therefrom to look and listen, and neither seeing nor hearing a ,signal of an approaching train, , is not to be deemed guilty of such begli- gence as to justify a nonsuit. Renwick ». N. Y. Central R. R. Co., 36 N. Y. 132. 'Where a person, standing in a cart, and driving the horse which drew it, and at the same time leading by a strap in his hand another horse drawing another cart, attempted (after taking precautions by looking and listening to ascertain if a train was approaching) to pass over the track of a railroad at a place where it crossed at grade the street on which he was travel- ling, and the rear horse, becoming restive, rushed forward, so that both of the horses and carts were on the track, and in this position they were struck and injured by a train, — it was held that the question whether the traveller was in the exercise of due care at the time of the collision, was for the jury. Eagan o. Fitohburg R. R. Co., 101 Mass. 315. A man was found dead on a railroad where it crossed a street, having been killed by a train of cars. It was held that whether he was lawfully oil the railroad, and whether his own negligence contributed to his death, were for the jury. Where there is evi- dence of negligence upon the part of, the company, the law will not presume, in the absence of proof, that the negligence of the deceased contributed to his death. Lehigh Valley R. R. Co. v. Hall, 61 Penn. St. 381. SEC. 323.J liTJTY OF TEAVBLLERS AT HIGH-WAY-CEOSSINGS. 1537 part of the.compaay.^ Where the stattite makes it the duty of a railroad company to give certain signals, — as, to ring the beU or bl6w the whistle on a train approaching a crossing, within a certain distance, — it is negligence fer se for it not to do so ; and a traveller has a right to expect that the company ,will discharge its duty in this respect. As a prudent man, he will not be relieved of the duty of looking or listening ; the negligence of one party cannot be set up by the other as -an excuse for the want of care on the part of the latter.^ 1 New Jersey E. E. Co., &c. b. West, 33 N. J. L. 91., 2 Beiseigel v. N. Y. Central R. R. Co., 34 N. Y. 633 ; Pollock v. Eastern R. R. Co., 124 Mass. 158 ; Renwlck i). N. Y. Central R. R. Co., 36 N. Y. 132 ; Gorton V. Erie R. R. Co., 45 N. Y. 660; O'Mara V. Hudson River R. R. Co., 38 N. Y. 445; Condell v. N. Y, Central R. E. Co., 64 K. Y. 535; Hill v. Louisville, &c. R. R. Co., 9 Heisk. (Tenn.) 823; Chicago, &c. E. E. Co. V. Triplett, 38 111. 482; Peoria, &o. R. R. Co. V. Siltman, 88 lU. 529; Dimick v. Chicago, '&c. R. R. Co., 80 HI. 338; Chicago, &c. E. R. Co. ■«. Van Patten, 74 111. 91 ; Memphis, &c. R. R. Co. v. Copeland, 61 Ala. 376 ; St. Louis, &c. E. R. Co. V. Mathias, 50 lud. 65; Karleu. Kansas City, &c. R. E. Co., 55 Mo. 476; Kennayde w.' Pacific R. E. Co., 45 id. 255; Com. V. Fitohburg R. E. Co., 10 Allen (Mass.), 189. But to render the company liable in such a case, the injury must be shown to have occurred by reason of the omission. Houston, &c. R. R. Co. v. Nixon, 52 Tex. 19 ; Barringer v. N. Y. Central R. R. Co., 18 Hun (N. Y.), 398. In Cosgrove v. N. Y. Central R. R. Co., 13 Hun (N. Y.), 329, which grew out of the same accident as the previous case, it appeared that one Barringer was driving, plaintiffs intestate and himself being in a one-horse wagon, on a highway crossing de- fendant's railroad. While at a safe distance therefrom they becameaware of theapproach of an engine, and Barringer at once endeav- ored to stop the horse and succeeded in checking him ; he started again and was again brought under control, but started a third time and ran into the engine. The bell of the engine was not rung as required by law. In an action to recover damages for the killing of plaintiff's intestate, it was held that, -although negligence on the part of Barringer could not be imputed to the deceased, yet as defendant's neglect to ring the bell did not contribute to, or cause the accident, the plaintiflF ^co'uld not recover. It becomes important in this class of cases to ascertain whether the plaintiff knew that the train was approaching, or could have known if he had used due diligence to ascertain. Lake Shore, &e. R. E. Co. V. Clemens, 5 Brad. (111.) 77; Ohio, &o. E. R. Co. V. Eaves, 42 111. 288; Steven- son V. Atlantic, &c. R. R. Co., 58 Mo. 503- Halman v. Chicago, &c. E. E. Co. ,62 Mo. 562; Chicago, &c. E. E. Co. v. Hirward, 90 111. 425; Briggs v. N. Y. Central E. R. Co., 72 N. Y. 26; 'North-Eastern Ey. Co. V. Wanless, L. R. 7 H. L. 12; Galena, &c. E. E. Co. V. Loomis, 13 111. 548; Stevens V. Oswego, &c. E. E. Co., 18 N. Y. 422. And if he has neglected- to use his senses and is injured, he cannot recover, if by want of such due care on his part he con- tributed to the injury. Com. v. Fitch- burgh R. R. Co., 10 Allen (Mass.), 189; Stevens v. Qswego, &c. E. R. Co., ante; Parker v. Adams, 12- Met. (Mass.) 415; Eaton V. Erie R. R. do., 51 N.Y. 544; SheiEeld v. Rochester, &c. R. R. Co., 21 Barb. (N. Y.) 339; Haslan v. St. Louis, &c. E. E. Co., 64 Mo. 480; Toledo, &c. E. E. Co. «. 'Jones, 76 lU. 311; 111. Cen- tral E. E. Co. V. Helherington, 83 HI. 510; Lake Shore, &c. R. E. Co. v. Sunderland, 2 Brad. (111.) 307; Fletcher v. Atlantic, &c. R. R. Co., 64 Mo. 484; Leduke v. St. Louis, &c. R. R. Co., 4 Mo. App. 485; Chicago, &c. R. E, Co. v. Houston, 95 U. S. 697; Payne v. Chicago, &c. R. A. Co., 44 Iowa, 236; Artz v. Chicago, &o. R. R. Co., 44 Iowa, 284. 1538 NEGLIGENCE. [chap. XVIII. If a traveller approaching a orogsing neglects to look and listen for the approach of a train, when by looking in season he could have seen, or by listening he could h^ve heard it, he is at least prima facie guilty of negligence which precludes a recovery ; and the same rule prevails where, seeing or hearing an approaching train, he nevertheless thinks he has time to cross ahead of it, but mis- judging in this respect, is run upon and injured.^ A rule which 1 Penn. R. R. Co. v. Beale, 73 Penn. St. 604. In Wilcox v. Railroad Co., 39 N. Y. 358, the court held that when one is killed iu attempting to cross a railroad track within the limits of a public high- way, and at a public crossing, if it appear that the deceased would have seen the approaching cars in season to have avoided them, had he first looked before attempt- ing to cross, it is to be presumed that he did not look ; and that by omitting so plain and imperative a duty, he will be deemed to have been guilty of negligence which precludes, a recovery ; that in cross- ing a railroad track ordinary sense, pru- dence, and capacity require a traveller to use his ears and eyes so far as he has an opportunity to do so, and a failure to do so is negligence sufficient "to predlude a recovery for any injury he may receive, in case of accident ; and that the negligence of the company in not ringing the bell or sounding the whistle isi no excuse for the traveller's neglect. After citing many authorities, Miller, J., said ; "The effect of the cases cited is to sustain the prin- ciple, that where the negligence of the party injured or killed contributes to produce the result, he cannot recover ; and that the omission of the company to ring the bell or sound the whistle near the crossing of a highway does not relieve the person who is about to pass over the high- way from the obligation of employing his sense of hearing and seeing, to ascertain whether a train is approaching." In Rail- road Co. V. Houston, 95 U. S. 697, it was held that the omission of the engineer in charge of a railroad train to sound its whistle or ring its bell does not relieve a traveller from the necessity of ascertaining by other means whether or not a train is approaching ; that negligence of the eni- ploy& of the company is no excuse for negligence of the traveller ; that the traveller upon the highway is bound to listen and to look, before attempting to cross a railroad track, in order to avoid an approaching train, and not to go carelessly into a place of possible danger ; that if he oi^its to look and listen, and walks thoughtlessly upon the track, or if looking and listening, he ascertains that a train is app"oaching, and instead of waiting for it to pass, undertakes to cross the track, and in either case receives an injury, he so far contributes to it, as to deprive him of all remedy against the railroad company ; that if one chooses to take risks he must suffer the consequences. In Railroad Co. v. Crawford, 24 Ohio St. 631, it is said that unquestionably ordinary prudence requires a person in the full enjoyment of his facul- ties, before attempting to pass over a known railroad-crossing, to use his faculties of hearing and seeing for the purpose of discovering and avoiding danger from an approaching train ; and that the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action to recover for an injury to which such negligence contribu- ted. In Dascomb v. Buffalo, &o. R. R. Co., 27 Barb. (N. Y.) 221, it is said that when negligencq is the issue, it must be a case of unmixed negligence ; that this rule is important, salutary in its effects, and should be maintained in its purity; that the careless are thereby taught that if they sustain an injury to which their own neg- ligence has contributed, the law will afford them no redress. But contributory negligence is not presumed against one who suddenly acts wildly when peril comes upon him unwarned ; and in the absence of any evidence throwing light on the matter, he will be presumed to have used that care and precaution which the law requires, and to which instinct would prompt him in saving his life. Cookv. SEC. 323.] DUTY OM TEAVELLEKS AT HIGHWAY-CKOSSINGS. 1539 WQuld make a railway company responsible for an injury which a person brings upon himself by his own foUy, would be not only was moved, without any signal being given, his foot was oaugit, and the injury occasioned to recover damages for which an action was brought. It was held that the plaintiff was properly nonsuited, as he was guilty of contributory negligence. O'Mara v. Del. & Hud. Canal Co., 18 Hun (N. Y.), 192. Where a person going to a station to take passage on a passen- ' ger train finds a freight train across the sidewalk, and is told by the freight con- ductor to pass under the end of a freight- car, — that h£ Jias plenty of time, — and wMle pasBU^ under is injured, lie cannot as a matter of law be said to be guilty of con- tributory negligence. Where a conductor has control over his train as to its starting or stopping, a person will have the right to act on his invitation to p^ss under a freight-car when the train is obstructing a passway, unless he has reason to suppose it hazardous. The person in such case has the right to suppose the train will not be started until he can pass through, and that the conductor has the power to con- trol the train, and will do so, knowing the dangerous position in which the person is placed by his direction. Chicago, &c. E. R. Co. V. ' Sykes, 96 ~ 111. 162. In a suit by the personal representative of a person killed upon a railroad-crossing, on the alleged ground of negligence of the company, it appeared that the country was level at the place of the accident, and that the deceased could readily have seen the approaching train, by the use of ordinary care, but drove upon the crossing without looking for a train ; and there was no proof that he was seen by tlie company's servants until it was too late to check the speed of the train. It was held that a verdict in favor of the plaintiff could not be sustained, owing to the gross negligence on the part of the deceased, al- though the signal required by law was not given. Chicago, &c. E. E. Co. v. Lee, 68 111. 576. The neglect of the railway em- ployes, in not making the proper signals on approaching a crossing, will not render the company liable for damages, where the undisputed facts show that by the ex- ercise of proper care the injured party Central E. E., &o. Co., 67 Ala. 633. Generally, contributory negligence of the injured party will defeat a recovery. Thus, where, by reason of an error in his own clock, the deceased was led to attempt a crossing at the time when a train was due at the crossing, it was held that there could be no recovery. Mun-ay v. Pont- chartrain E. E. Co., 31 La. An. 490. So, where the plain tiff's declaration showed that he received a personal injury in at- tempting to pass between the cars of a freight train, to which was attached an engine, with steam up, and which was liable to start at any moment, and witTiout permission or irotice to any one in charge of the freight train or having authority ovei; it, to reach a passenger train standing on the .other side, it was held (that it showed such negligence on the part of the ' plaintiff as would preclude a recovery. Chicago, &c. E. E. Co. v. Coss, 73 111. 394. But where a passage-way is open between the cars -of a standing freight train, and a traveller passing between them is injured by the sudden "kicking" of a car, the better opinion seems to be that the question of contributory nejgligence is fot the jury. Mahar v. Grand Trunk E. E. Co., 19 Hun (N. Y.), 82. So it is proper to submit to the jury the question as to whether or not persons in the street were in the habit, of crossing between the cars, in the presence of the railway company's eniployes. , It was the duty of the railway company, before moving a train in a street, to give some warning. So held, . where the plaintiff got caught between the cars in passing through a train. Grant v. Baltimore, &c. R. E. Co., 2 MacArthur (D. C. ), 277. But where the plaintiff at- tempted to cross defendant's tracks at what was claimed to be a public crossing, and found the crossing blocked by a long freight train which had been standing there for some time, owing to a curve in the road the front of the train could not be seen ; the end of the train was some two hundred feet from the crossing. The plaintiff climbed upon the bumper of one of the cars and attempted to cross the tracks. While so doing the train 1540 NEGLIGENCE. [chap. XVIII. harsh, but exceedingly unjust. The circumstance that a railway- crosses a highway necessarily imposes a mutual burden both upon -might have avoided the injury. Cleve- land, &o. R. E. Co. V. Elliott, 28 Ohio St. 340 ; Shaw v. Jewett, 86 N. Y. 616. Even where the statute provides that a locomotive-hell must be rung when the engine is approaching a crossing, under a penalty for failing so to do, and declares that the railroad corporation shall be liable for all damages sustained by any person, and caused by its locomotives, trains, or cars, when the bell is not rung, — it is held that a failure to ring the bell dofes abrogate the doctrine of contributory neg- ligence. ' Meeks v. Southern Pacific R. E. Co., 52 Cal. 602. If the injured person had notice of the approach of the train, the failure to ring the bell would become an immaterial matter. Houston, &c. R. R. Co. V. Nixon, 52 Tex. 19. A stranger, in stepping out from behiiid a train of cars standing upon a side track of a railroad, to cross another track, seven feet removed, was run over by a "pony" engine and killed. The engineer failed to r^ng the bell, but the locomotive could have been heard, while moving, at a distance of from, one to two hundred yards. The engineer did not see the deceased, but, had he done so, could not have stopped the engine soon enougb to prevent the accident ; whereas the other might have both seen and heard the engine. in time. It was held that al- though the failure to ring the bell was negligence in law, yet, since the casualty was directly caused by the ■ negligence of the deceased, and after he stepped from behind the train could not have been pre- vented by the engineer, the company was not liable. Harlan v. St. Louis, &c. R. R. Co., 64 Mo. 480. See also Fletcher 0. Atlantic & Pacific R. R. Co., 64 id. 484. An instruction that it is the duty of a railway company to give "due warn- ing" of the approach of its trains to a highway-croSsing is erroneous, being too general. Chicago, &e. R. R. Co. v. Rob- inson, 106 111. 142. The question whether the proper signals were given, or the ne- cessary precautions used by the com- pany at the time the accident occurred to prevent injury, is one of fact for the jury. Paducah & Memphis R. R. Co. v. Hoehl, 12 Bush (Ky.), 41. In a New York case, the court charged in substance that from a point the proper distance from the crossing until the engine reached, the crossing, it was the defendant's duty to ring a bell or blow a whistle, and do it continuously so as to give warning. To this portion of the charge the defendant's counsel excepted generally. It was held that the exception was untenable ; that the chai'ge was substantially correct, but even if the court erred in using the word "continuously," a portion of the charge being correct, a general exception could not be sustained ; that if any qualifica- tion was proper and desired, it should have been suggested. ' Smedis v. Brook- lyn, &c. E. R. Co., 88 JS. Y. 13. When the employes in charge of a railway train have given all the usual aud proper signals to warn persons of their approach, they are not required to stop the train on discovering a person on the track, unless they have reason to believe that he is laboring under some disability, or that he does not hear or comprehend the signals. Freeh v. Philadelphia, &c. R. E. Co., 39 Md. 574. Indeed, u, railway company is entitled to precedence at highway cross- ings, on condition that it shall give reason- able and timely warning of the approach of its trains, and a failure to give such warning is negligence. Indianapolis, &c. R. E. Co. V. McLin, 82 Ind. 435. But the obligations of railway companies and travellers on highways at crossings are mutual, the same degree of care being re- quired of each ; and the right of pre- cedence belonging to the railway company ^oes not relieve it of the duty to give proper warning of its approaching trains, and to use reasonable eare to avoid colli- sion. Rockford, &c. R. R. Co. v. Hillmer, 72 111. 235. In a Tennessee case, the court charged the jury that it was the duty of the railroad company to blow the whistle at short intervals all the way from the depot to a crossing ; and it was held no error. Louisville, &c. R. R. Co. v. Gardner, I Lea (Tenn.), 688. Where there is extensive travel upon a highway-crossing it is the duty of the company to give timely SBC. 323. DUTY OF TRAVELLBES AT HIGHWAY-CEOSSINGS. 1541 the railway company and upon travellers upon the highway^ at all crossings, — upon the railway company to give the statutory signals, and upon the traveller to listen and to look for an approaching train, .where by looking or listening he could see or hear the train. And he is bound to look and listen, although he knows that no train is due at the crossing by schedule time, as the company has a right to and sufficient notice of the approach of trains to such crossing. Phila.J &c. E. E. Co. V. Killips, 88 Penn. St. 405. The plaintiff's deceased husband went, with some companions, to the defendant's rail- way station to see an intending passenger off by the train, and he crossed the rails by a level pathway used by the public, without objection by the defendant, to the rear of an ordinary train then standing at the station ; his companions, from where they stood, could see an express train ap- proaching from the opposite directio;i, but he, from his position behind the station- ary train, could not see it, and, upon his attempting to recross the rails to his com- panions, he was killed by the express train ; the engine-driver of the express train adinitted that it was his duty to whistle on approaching that station, and he and other servants of the defendants deposed that he had done so upon that occasion ; but the deceased's companions deposed that they did not hear it. It was held that there was evidence of negligence by the defendant proper to bf submitted to the jury. Slatteiy v. Dublin, &c. Ey. Co., 8 Jr. Eep. C. L. 531 ; 10 Ir. Rep. C. L., 256. The evidence being conflicting as to the giving of a signal, the question is one of fact for the jury. Eoach V. Flushing, &c. E. E. Co., 58 N. Y. 636 ; McKeever v. N. Y. Central, &c. R. E. Co., 88 id. 667 ; Bayley v. Eastern R. R. Co. , 1 25 Mass. 62. Where, in an action' against a railroad company for negligence in not ringing a bell or blowing a whistle upon a train approach- ing a crossing, the plaintiff's witnesses, whose a,tj;ention was called to the subject at the time, swear that they did not hear the bell, while the defendant's witnesses swear positively that, it was rung, the question is one of fact for a jury. Salter V. Utica, &c. E. R. Co., 59 N. Y. 631. So, where upon the question whether the defendant rung its bell or blew its whistle there. were several witnesses upon-the part of the plaintiffs who testified that they were in a position where they could have heard the signals had they been given, and that the signals were not given, it was held that this negative testimony raised a conflict of evidence against the affirmative testimony of defendant's witnesses, that the bell was rung and the whistle blown. Bunting v. Central Pacific E. R. Co., 1,6 Nev. 277. Where the plaintiff testified that as he approached a crossing with hi^ wagon and team, on a public street in the city, of Topeka, adjoining the passenger- depotj-he looked to the west (the direction from which the train came), and' all he saw was a large pile of lumber, and he didn't hear any bell or whistle ; and a witness stated that he was ten or fifteen, feet ftem the depot, but heard no signals until the collision, and would have heard them if any had been given ; and four other witnesses who were present testi-' fied that they did not hear the whistle sounded or the bell rung until the instant of the collision ; and a passenger on the , train, and in a car next to the rear one, stated that he didn't hear any alarm ; and on the part of the defence, the fire- man and engineer testified that they whistled above the tank, three or four' hundred yards west of the crossing, and rang; the bell continuously from the tank until the train stopped ; and five other witnesses stated that they heard the whistle sounded three or four hundred yards west of the crossing, and the ring- ing of the bell as the train came in, — it was held that there was evidence sufficient to sustain the finding of the jury' that proper signals of the approach of the train to the crossing were not given. Kansas Pacific E. E. Co. v. Eichardson, 25^ Kan. 391. \ 1542 NEGLIGENCE!. [chap. xvm. run extra trains and is liable to do so.^ The trains are liable to be detained by various causes, without any fault of the company, 1 Toledo, &o. R. R. Co. v. Jones, 76 111. 311 ; Wilcox V. Rome, &c. R. R. Co., 39 N. Y. 358 ; Salter v. Utioa, &o. R. R. Co., 75 N. Y. 273. The" plaintiff in his declaration averred that he, being in a narrow, fenced lane leading to the crossing over the defendant's railway, and distant about two and a half rods from the track, and seeing the defendant's train forty rods from; but approaching the crossing, he being distant seven rods therefrom, at- tempted to pass before the train should reach the crossing ; that his attempt was unsuccessful, and that he was injured. It was held, on demurrer, that on the plain- tiff's statement of facts he was not in law entitled to recover. Grows v. Maine Central R. R. Co., 67 Me. 100. If a per- preservatibn. Kelley v. Hannibal, &c. R. B. Co., 76 Mo. 138. But wherA a per- son, as he approaches a crossing with a single track and infrequent trains, sees a train with the roar towards him, going apparently in an opposite direction, and is deceived by appearances, and. his atten- tion distracted by the actions of persons at ft distance attempting to warn him of his danger from the train which is back- ing rapidly and quietly towards him, and a wagon hta crossed just before him, it will be left with the jury to say whether he was guilty of a want of proper care. Bon- noil V. Delaware, &c. R. R. Co., 39 N. J. L. 189. So where one knows a train to be approaching, which may injure him if he attempts to cross the track, before it, son while crossing the track on a public , the slightest care for his own safety re- highway is injured by a passing train, his negligence, if it contributes at all to the injury, contributes directly and proxi- mately. Hearne v. Southern Paciiic R. R. Co., 60 Cal. 482. In a North Carolina case, while crossing a railway track the plaintiffs intestate was killed by a train which had left a station on schedule time and attained a speed of twenty miles an hour ; the deceased was working at a steam-mill located near the track ; when first seen by the engine-driver he was about one hundred feet distant, and mak- ing no effort to get out of the way j the engine-driver put on brakes and shut off steam, but gave no signal by bell or whis- tle. It was held that the contributory negligence of the deceased was sufficient to prevent a recovery against the com- pany. Parker v. Wilmington, &c. R. R. Co., 86 N. C. 221. And it is not suffi- cient to exonerate a party from a charge of contributory negligence in attempt- ing to cross a railway track in the face of an approaching locomotive, to show that he might reasonably have supposed that if the locomotive ran at its usual and lawful rate of speed for that pl%oe, he cbuld cross without harm. He has no more right to presume that the men in charge of the locomotive will quires him to wait for it to pass. So, where it appears that the deceased was acquainted with the way in which the trains were run, and saw or might have seen the whole situation precisely as it was, but in her eagerness to secure a pass- age on the train attempted to cross the track and was struck, there was gross neg- ligence on her part. In such cnae the ab- sence of the flagman froTn his post, or the failure to give warning of the approaching train by boll or whistle, is not such wil- ful or wanton negligence on the part of the railroad company as to charge it with responsibility for the accident. Lake Shore, &c. R. R. Co. v. Sunderland, 2 Brad. (111.) 307. The mere fact that a party, from the nature of his employment,, is authorized to cross the tracks of a railroad, will not warrant him in cross- ing at a place other than is provided 'by the railroad. Morgan v. Penn. R. R. Co., 7 Fed. Rep. 78. On a track, where cars frequently pass, every one is bound to be vigilant in Jiis own protection ac- cording to the common experience of men of ordinary prudence under like cir-- cumstances ; but the want of such vigi- lance is a matter of defence in an action against the railroad company to recover . damages for injuries sustained because of the requirements of the law thon they . its negligence. Kansas Pacific R. R. Co. have that he will obey the instinct of self-- v. Twombly, 8 Col. 126. Where a person SBC. 323.] DUTY OP TRAVELLERS AT HIGHWAY-CROSSINGS. 1543 and negligence cannot te imputed may be behind the usual time. crossed a railway track, and was %net in a hurried manner by a friend on the adja- cent parallel track of another road, thence turned back to defendant's track, and held there in conversation during tlie passage of a long train running at the speed of five or six miles an hour on the adjacent road, and having separated, the 'deceased was theii killed by a switch-engine backing up on defendant's track in a direction oppo- site that of the passing train, the survivor having got twenty feet away before being apprised of the accident, and not having seen the switch-engine nor heard it be- cause of the noise of the passing train, — it was held that the turning back of de- ceased was not an act of negligence^ which the law will recognize as such^ but that it was properly left to the consideration of the jury ; and that it was properly left to the jury to determine whether or not the deceased was guilty of negligence under the circumstances m not observing the ap- proaching engine. Kansas Pacific R. R. Co. ■». Twomblyi 3 Col. 125 ; affirmed on writ of error, R. R. Co. v. Twombly, ilOO U. S. 78. The plaintiff's intestate, wlio, with his horses and wagon, was approach- iiig a railroad crossing, was prevented from seeing a coming train by some freight cars which stood upon a switch track near the crossing, until it was too late for him to avoid a collision with such train, whereby he was killed. A moment previously a freight train had passed, and was not out of hearing. It was held that the intes- tate was not guilty of contributory" negli- gence in not seeing or hearing the com- ing train. Ingersoll v. New .York Cen- llal, &c. R. R. Co., 66 N. Y. 612. It is deemed culpable negligence to attempt to drive a team across the track of a railroad in full view of an approaching engine. Chicago, &c. R. R. Co. ■». Bell, 70 111. 102 ; Gothard v. Alabama, '&c. R. R.' Co., 67 Ala. 114. The court cannot say, as matter of law, that ordinary care required plaintiff to stop his team and listen for the train, or that trotting his team to within a rod of the track was nesgligenoe, even though Txe knew that ^he train usually passed the crossing at about that to it from the fact that a train The fact of the train being be- time in the day ; but Ihese questions are for the jury. Eilert v. Green Bay, &c. B. R. Co., 48 Wis. 606. While, where the severity of the weather requires a traveller upon the highway to protect him- self from it, If the means taken materially impair his ability to perceive coming dan- ger and he is injured at a railroad cross- ing, he is not to be freed from a charge of contributory negligence, yet, unless it is certain that the means used did have that effect, it is a question for' the jury, not the court. Salter v. Utica, &c. R. R. Co., 59 N. Y. 631. Upon the whole it may be said that a person approaching a rail* way at a road-crossing is bound to use such precautions as a prudent man would resort to under like circumstances; but any at- tempt by the court to prescribe^ the pre- cise thing he should do in exercising such caution would be an invasion of the prov- ince of the jury, by charging on the weight of evidence. Texas, ifcc. R. R. Co. V. Chapman, 57 Tex. 75 ; Houston^" &e. , R. R. Co. V. Waller, 56 Tex. 331 ; Phila., &c. E. E. Co, ■». Carr, 99 Penn. St. 505. Thus, A. was walking upon the street of a city which was intersected at an angle by several parallel lines of railway. On nearing the intersection, A. saw a train approaching on one of the traclfs, and stopped until it had passed'. When the last car had gone by she looked both ways, and also listened, but neither saw nor heard anything to alarm her, and accordingly, when the rear of the train was about a car's length off, attempted to cross. While doing so she tripped and fell upon the track next beyond that upon which the train had just passed, and after lying there prostrate about fifteen seconds was run over and injured by a train run- ning upon that track in the opposite di- rection from the train which had just passed. A.'s view of the train by which she was injured was totally cut off by the train which had just passed. The rear car of the last train passed the engine of the first train about three hundred feet from the place of the accident. In an action brought by A. against the com- pany to recover damages for her injuries, 1544 NEGLIGENCE. [chap. XVIII. hind time may have a bearing upon the question of contributory negligence ; ^ lut it does not relieve the traveller of this duty of care. the defendant requested the court to charge that the plaintiff had been guilty of contributory negligence in attempting to cross while the train which had just passed prevented her seeing the train by which she was injured. The court de- clined to so charge, but left the question of the plaintiffs contributory negligence to the jury. It was held under the cir- cumstances that this was not error. Phila- delphia, &c. E. E. Co. V. Carr, 99 Penn. St. 605. A traveller is bound to look out and listen for engines and trains ; hut he is not hound to make inquiry as to the schedules or the time when the trains are expected to pass. South & North Ala. E. E. Co. V. Thompson, 62 Ala. 49.4. To instruct the jury that the " plaintiff's testi- mony shows that the deceased was fttmil- iarly acquainted with the crossing and the time of the passing of trains, and it was his duty to have avoided being run against by the train by keeping off the track at crossing-time, and if he failed so to avoid the train," etc., is error. Louisville,. &c., E. E. Co. V. Goetz, 79 Ky. 442. So it was held to be en'or to instruct the jury that it was the duty of the deceased " to make such use of his eyes and ears, and all his faculties, as would enable him to avoid danger, provided the managers of the train were doing their duty." If he did that he was free from blame. Toledo, Wabash, &o. E. E. Co. v. Shuckman, 60 Ind. 42. One cannot recover for an injury received while crossing a railroad track if he failed to look and listen, unless the cir- cumstances were such that it would have been of no avail to do so ; and this though the defendant neglected to take the statu- tory precautions and was otherwise negli- ^ gent in the management of its cars. Drain V. St. Louis, &o. E. E. Co., 10 Mo. App. 531. The mere fact that a persoli jumps from a vehicle in which he is travelling, where there is imminent danger of collision with an approaching train at a crossing, does not bar a recovery against the rail- road company, although it appears that he made a inistake and would have escaped injury had he remained quiet. Dyer v, Erie R. E. Co., 71 N. Y. 228. In an ac- tion for an injury at a crossing, the evi- dence as to how far the view of the track towards the south (the direction from which the train came which caused the accident) was obstructed by buildings and fences was conflicting. The plaintiff's evidence tended to show that, before cross- ing, he looked up the track towards the south ; that the track was obscured by the smoke of a train which had just passed the crossing going south ; that he lis- tened for the whistle of any train going north, and could hear no whistle or other signal of its approach. It was held that the question whether the plaintiff used due care in crossing the track was for the jury. Eandall v. Connecticut River E. E. Co., 132 Mass. 269. When the plaintiff came near to the sign-board warning trav- ellers to look out for thfe cars, he stopped his team and looked east and west lor trains ; he could see about fifty rods east j seeing no train, he started on to cross the track, looking and listening both ways as well as he could without getting out or off from his seat, but he neither heard nor saw anything. A train from the east struck his buggy, and he was injured. The plaintiff was nonsuited on the ground of contributory negligence. It was held error ; that the failure of the plaintiff to let down his bnggy-top when he started up was not, as matter of law, negligence. Stackus V. New York, &o. E. E. Co., 79 N. Y. 464 ; Glendening v. Sharp, 22 Hun (N. Y.), 78. In an action against a rail- way company to recover for injuries caused by an engine colliding at a crossing with a wagon in which the plaintiff was driv- ing, at about half-past five in the morning, in December, it appeared that there were six tracks across the highway; that the^ plaintiff <\'as prevented by the buildings on' either side from seeing the approaching engine until he had driven upon the first track ; that he then saw the engine on the 1 State V. Philadelphia, &c, R. R. Co., 47 Md, 76. SBC. 323.] DUTY OP TBAVELLEES AT HIGHWAY-CBOSSINGS. 1545 Eailroad companies have the right to run trains at all times, and per- sons having occasion to cross their tracks are entitled to no exemp- tion from care and vigilance because trains are irregular, or because extra trains are run.^ The requirement of the statute that the bell shall be rung or the whistle sounded at the approach of a railroad train to the crossing of a public highway, is for the benefit of persons on the highway at or approaching the crossing; and a failure to comply with the statute furnishes no ground of complaint; to a per- son injured on the track at a distance from the highway. An engineer in charge of a moving train has a, right to assume that persons past the age of childhood will heed the usual'^alarm signals. If, after giving such signals without effect, he uses suph means as in his judgment are, in the emergency, most advisable to prevent colli- sion with a person standing on the track, he is not chargeable with negligence, and the company cannot be held liable for the conse- quences of a collision, although he failed to use other means which were at hand, provided he is conipetent and experienced in his busi- ness. The mere fact that a train was moving at a dangerous rate of speed will liot make the company liable for injuries to a person run over by the engine, if he was himself guilty of contributory negli- gence.^ In the case last cited, A. was killed while standing oil the railroad track in front of an approaching train. The engineer gave the usual signals, and finding that A. did not get off the track, put . further ijraok ; that the place wa,3 one road was killed by a locomotive. There across and near which engines and cars of was no express testimony as to whether he all kinds were constantly moving ; that stopped and looked and listened before the gates, which were arranged to swing going on the railroad. It was held that across the highway when a train was pass- the question of his negligence was for the ing, and across the railway when the high- jury, and that although from the uncon- way was safe for travel, were in the night- tradicted testimony it might have been in- time swung back, so as to leave both the ferred that if the traveller had stopped highway and the railway open ; that there and looked and listened he would have was no flag or lantern at the crossing as seen the approaching train, it was for the had been customary when an engine was jury to determine the fact, and that the about to pass while the gates were not so presumption in the absence of other evi- shut ; that the plaintiff's horse was gen- dence is that the traveller stops and looks tie ; that the plaintiff did not on seeing and listens before crossing a railroad, the engine stop or whip up his Jiorse, Penn. R. E. Co. v. Weber, 76 Penn. St. which was walking ; and that he thought 157. Hassenyer w. Michigan Central K. R. he could have stopped the horse on seeing Co., 48 Mich. 205. the engine if he had tried. It was held ^ Salter v. Utica, &c. R. R. Co., 75 that the question whether the jilaintiff K. Y. 273; reversing 13 Hun (N. Y.), was in the exercise of due care was for the 187. jury. Craig v. New York, &c. R. R. Co., ^ Bell v. Hannibal, &c. R. R. Co., 72 118 Mass. 431. A person driving a horse. Md. S2. and light wagon over a crossing of a county VOL. II. — 47 1546 KE6LIGENCB. [CHAP. XVUt. on the air-brakes, but did not reverse the engine. It was held that, assuming the engineer to have been eompefcent and earefiil, the de- fendant was entitled to an instruction that, if the engineer acted upon his judgment, and did what he judged was most likely to save A. in applying the air-brstkes and' sounding fi^e danger sigaal, then his omission to reverse the engin© was not negligence. Where a person is ignorant of the location of a crossing,, or where the circumstances are such as to mislead him as to the necessity for looking or listening for the approach of a train, he cannot as a matter of law be said to be guilty of negligence jsar se for neglecting to do so. Thus, where, as is the case in some locali-ties, the company main- tains gates at certain crossings, which are closed at the approach of a train, he has, if they are open when he is near the, crossing, a right, to rely upon it that it is safe for him to cross, and if the company neglects its usual duty, and does not close them, or otherwise notify travellers of the approaich of a train, it cannot relieve itself from lia- bility simply because the traveller neglected to look or listea for himself; and especially would this be the case if the statutory sig- nals were not given.^ It is gross negligence for a deaf person or one who is blind to walk upon or very near a railway'track. Employes have the: right to pre- sume that a person walking on the railway will hear the whistle.^' Even a deaf man has a right to travel; but, being bereft of the sense of hearing, he is bouhd to the exercise of greater vigilance is looking for approaching trains; And if by any neglect in that re- spect upon his part, he is injured, he is without remedy. Thus, the plaintiff, a deaf man, being about to cross a railroad in a buggy, saw the smoke of what he took to be a moving train east of him. He pressed, drove eastward a distance of two hundred and fifty feet 1 Brown v. N. Y. Central R. E. Co., Cape Cod R. R. Co., 120 Mass. 257; 82 N. Y. 597 ; Chicago, &e. R. R. Co. v. French v. Taunton Branch R. R. Co., 116 Whitton, 13 Wall. (IJ. S.) 270 ; Cohen v. Mass. 190 ; Casey v. N. Y. Central R. B. Eureka, &c. R. R. Co.^ U Nev. 876 ; Co., 78 N. Y. 518 ; Kellogg v. N. Y. Bunting v. Central Pacific R. R. Co., 14 Central R. E. Co., 79 N. Y. 72 ; Chicago. Nev. 351 ; Strong v. Sacramento, &c. &c. R. R. Co. v. Lee, 87 111, 401 ; Maiii- R. R. Co., 61 Cal. 826 ; Faher v. St. Paul, etta, ^c. E. R. Co. v. Picksleyi 24 Ohia. &c. R. R. Co., 29 Minn. 465 ; Abbett v. St. 654 ; Bellefontaine R. R. Co. v. Sny- Chicago, &o. R. R. Co., 80 Minn. 482 ; der, 24 id. 670 ; Duffey v. Chicago/ &c. Eelly V. St. Paul, &c. R. E. Co., 29 Minn. K. B. Co., 32 Wis. 269. 1 ; Chaifee v. Boston, &o. E. B, Co., 104 2 Coggswell v. Oregon, &c. B. B. Co., Mass. 108 ; Jewett v. Kline, 27 N. J. Eq., 6 Grog. 417 ; Laicher v. New Orleans, &o. 474 ; Bonnell v. Delaware, &c, R. R. Co., R. R. Co., 28 La, An. 320 j Louisville, 40 N. J. L. 189 ; Eilert v. Green Bay, &c. R, R. Cn. v. Cooper, 6 Am. & Eng. &c. R. R. Co., 48 Wis. 606 ; Hinckley v. R. R. Cas. (Ky.) 6. SEC. 323.} DtJTY OF TEAVBtiaiES AT HIGHWAY-CROSSINGS. 1547 along a road wMcb was paralM with the railway aBd withia a few feet of it, turned and drove bacl^ th© same way he had eonie,, attempt^ ing to reeross the track at the same plaee. He never leaked to the east to ascertain the direction in which the train was moving, and assumed that it was naaviag away from him. The view to the east was unobstructed for more thaa- half a mile. Whea in the act of recrossing the track, he was looking hack over his. shoulder to the southward. In this positiont he was struck and injured by the traia earning from the east. It was held, that the accident was the result of his own negligence, and the compaay was, therefore, not Uabfe ; hia deafness should have added to- Ms vigilance ; although plain- tiff was in full view of those operating the train for a long distance, yet they were not chargeable with negligence, owing to the fact that the. road forked just at the crossing, and they eouM noib anticipate that; pUintiff intended to take that branch which erossed, the track ; also, that under the circumstances it was immaterial whether the proper signals for the crossing were given or not.'- The fact that the view of the; track may have been obscured by other cars left standing on the side track does not lessen the caution req^uired of a perscm attempting to cross,, but imposes upon him the duty of exercising a higher degree of dUigenoe.^ A person crossing the track at 9. private crossing, at a place where the. view is obr structed by standing cars, has the right to presume that the com- pany at such crossing will use more care than ordinarily.^ And evidence that, by reason of excavations, the formation of the land in the vicinity, and the presence of tiihber near the crossing, it was somewhat difficult for persons near it on the highway to see an approaching train, would support a finding that a failure to sig- nal the approach of the train was negligence, although such signals were not then required by statute.* So, where a railroad company permits brush and other' obstructions on its right of way so as to prevent the view of approaching trains by traveller.? on the. highway crossing its track, and neglects to give any signal of danger by a train approaching a crossing, either by ringing a bell or sounding a 1 Purl V. St, Louis,. Kansaa City, & ' Thomas v. Delaware, &c. E. K. Co., Northern E. R Co., 72 Mo. 168. 19 Blatohf. (U. S.C. C.) 533. 2 Garland v. Chicago, &c. E. E. Co., * Eilert v. Green Bay, &c. E. E. Co., 8 Brad. (111.), 571 ; Haas u Grand Eapids, 48 "Wis. 606; Roberta ». Chieagcr, &c. ' &o. E. E. Co., 47 Mich. 401 ; Coitdell ». R. E. Co., 35 id. 6?9. New York Ceatralj Sua. E. E. Co., 70 N. Y. 119. 1548 KTEGLrOENOE. [OHAP. XVIII. / whistle, whereby a party, in attempting to cross the track oh the public road, is killed, the company will be guilty of negligence.^ It cannot be said, judicially, that a person about to drive across a rail- road at a point where the line of the track could not be seen before reaching the crossing, should go on foot to look for approaching trains before driving upon the crossing with a team.^ A railway company is not, as a matter of law, required to station a flagman at a road-crossing in the country, because of the approach to it being partially concealed by embankments or otherwise.^ But under such circumstances the company is bound to exercise proper caution. Thus, the plaintiff was injured by a backing engine while crossing defendant's track. In an action to recover for the injury, it appeared that there were some empty cars standing on another track between the track upon which was the engine, and plaintiff as he ap- proached the track. The defendant's counsel asked the court to charge that there was no negligence on the part of the defendant in using that particular engine ; also, that leaving the empty cars stand- ing on the track was not negligence. The court refused so to charge. It was held not erroneous.* And it is for the jury to say whether it was negligent or not. Thus, a railway crossed on a level a public carriage and foot vv'ay at a spot which^ — from the fact of there being a considerable curve in the line, and la bridge near, so that trains coming in one direction were not seen until very close, — was pecu- liarly dangerous. There were gates across the carriage-way which were kept locked ; but the foot-way was protected only by a swing- gate on either side, no person* being there to caution people passing. The plaintiff, while using the foot-way, was Knocked down by a passing train and injured. It was held that it was properly left to the jury to say whether or not the company had been guilty of negligence.* While unusual speed of railway trains does not of itself constitute negligehce, yet it may be considered with other circumstances in de- termining the degree of care exercised.^ The law does not require ' Dimiok v. Chicago, &o. R. R. Co., 6 Bilbee v. London, Brighton & South SO^l'SSS. CoaatRy. Co., 18C. B. (N. 8.)S84. 2 Pittshurgh, &o. R. R. Co. v. Wright, » Artz v. Chicago, &o. R. R. Co., 44 80 Ind. 230. Iowa, 284 ; Terre Haute, &o. R. R. Co. v. » Haas V. Grand Rapids, &c. R. R. Clark, 73 Ind. 168. It is sometimes Co., 47 Mich. 401. said that the running of trains at any Kissenger v. New York, &o. R. R. conceivable rate of speed is negligence per Co., 56 N. Y. S38. se. Cohen v. Eureka R. R. Co., 14 Nev. SBC. 323.] DUTY OP TRAVBLLBES AT HIGHWAY-CROSSINGS. 1549 the speed of trains to be slackened on approaching the crossing of a public highway in the country when a team is seen approaching it.^ But it is held in some of the cases that the running of a train ab a .streiet-crossing, where many are constantly passing, at a greater speed than is allowed by law, is not only carelessness, but the act is also wilful, ^t such places, the engine-driver, as well as persons crossing the railroad, must exercise more care than at other places, of less peril? But while a traveller <may reasonably assume that an approaching train is running at a lawful speed,* yet, because of the statutory duty cast upon the company, he is not relieved from using his own senses and exercising due care in crossing* The company is liable for in- juries resulting from the running of its trains at an unlawful speed, bq,t only to those who were in the exercise of due care themselves.^ A miner was run over and killed by a passing engine while he was using a level crossing, on a dark morning in November. His view of the line in the direction from which the engine came was obscured by, a fence, a signal-man's box, and a shunted train. The 376 ; Bemis v. Conn. & Pass. R. E. Co., 42 Vt. 375 ; Grand Eapids, &o: R. R. Co. V. Huntley, 38 Mich. 537 ; Grows v. :^aine Central R. R. Co., 67 Me. 100 : Maher v. Atlantic, &c. R. R. Co., 64 Mo. 267 ; Chicago, &c. E. R. Co. v. Lee, 68 111. 576 ; Telper v. Northern R. R. Co., 30 N. J. L. 188 ; McKonkey v. Chicago,*' &c^ R. R. Co., 40 Iowa, 205 ; Zeigler v. Northeastern R. R. Co., 5 S. C. 221. But whether this is so or not, it is always proper evidence to be considered by the jury in determining whether the company was in the exercise of due care or not. Pryor d. St. Louis, &c. E. E. Co., 69 Mo. 215 ; Buxton v. Philadelphia, &c. E. li. Co., 4 Harr. (Del.) 252 ; Indianapolis, &c. E. E. Co. V. Stables, 62 111. 313. And the jury are to consider whether or not the I'ate of speed was unreasonable. Conti- nental Improvement Co. v. Stead, 95 U. S. 161 ; South, &c. R. E. Co. v. Thompson, 62 Ala. 494 ; Massoth v. Del. & Hud. C. Co., 64 N. Y. 524 ; Rockford, &c. E. R. Co. V. HilMer, 72 111. 235 ; Toledo, &c. R. R. Co. V. Foster, 43 111. 415 ; Wabash, &c. R. R. Co. V. Henks, 41 111. 406; Penn. R. R. Co. v. Lewis, 79 Penn. St. 33 ; Salter v. Utica, &c. R. R. Co., 88 If. Y. 42. 1 Chicago, &c. E. Co. v. Robinson, 9 Brad. (111. App.) 89 ; Toledo, &c.E. Co. v. Miller, 76 111. 278. The court instructed the jury that it is the duty of the employes of a railroad company " to approach a cross- ing at such rate of speed as would enable them to check the traiij if necessary." It was held erroneous. Cohen !>. Eureka, &c. R. Co., 14 Nev. 376. 2 Wabash R. E. Co. v. Henks, 91 111. 406. ' Langhoffw. Milwaukee, &c. R. R. Co., 19 Wis. 489 ; Schmidt v. Chicago, &c. R. R. Co., 83 111. 405 ; Correll v. Burling, ton, &c. R. R. Co., 38 Iowa, 120. * 111. Central R. R. Co. v. Hetheriiig- ton, 83 111. 510. 6 Toledo, &e. R. R. Co. ■». O'Connor, 77 111. 391 ; Baltimore, &c. R. R. Co. v. McDonnell, 43 Md. 534; Haas v. Chi- cago, &c. R. R. Co., 41 Wis. 44 ; Chicago, &c. R. R. Co. V. Becker, 84 111. 483 ; Liddy V. St. Louis R. , R. Co,, 40 Mo. 506 ; Madison, &c. R. R. Co. v. Taffe, 37 Ind. 361 ; Pittsburgh, &c. R. R.Co. v. Kuntson, 62 111. 103 ; Lake Shore, &o.' R. R. Co. v. Berlink, 2' Brad. (111.) 427 ; Jetteru. N. Y. Central, &c. R. R. Co., 2 Keyes (N. Y), 154 ; Wasraer ». Delaware, &c. R. R. Co., lON.Y. Weekly Dig. 106. 1550 NEGUGENOE. [CHAP. xvim. engine of the shunted train was blowing off steam, which sei-ved to drown the in-oise of the approaching engine. The engine-driver, if he had whistled .at all, had not given an " alarm " whistle. It was held that the railway company's servants were in jfeuilt, and that there was no contributory negligence on the pact of the miner.' Sec. 324 Frigbtemlng Teams. — For an injury resulting from tire frightening of a horse im ike proper operaiimi <of sx, railway, no dam- ages are recoverable;* but where an engine is managed in such a reckless aad negligent manneii' as to frigliten horses, and cause them to run away, the company is liable for the consequences,* — as, where the engineer suddenly dischai^es a jet of steam near a passing team,* or allows the steam to escape at a highway-crossing, or near a highway, making a great noise, wben teams are approaching,* espe- cially when it is necessary.^ The oompamy in the absence of statu- tory regulations is limited to a veasonable use of signals,'' and the blowing of a whistle near a oirosBing, or while running along a high- 1 Ritchie v. Caledonian Ry. Co., 1 So. ,Sess. Cas. (4th Series), 148. ' North Side St. R. Co. v. Tipping (Tex.), 14 S. W. Kep. 1067; IDuvall v. Baltimore, &c. R. Co., 73 Md. 516; 21 Atl. Rep. 49Q (escape of steam by the operation of the self-acting Yalre); Chap- man V. Zanesville St. R. Col tOhio C. P.), 27 Week. L. Bull. 70 ; Douglas v. fiast Tennessee, &o. R. Co., 88 Ga. 282; Whit- ney V. Maine Central E. Co., 99 Me. 208; Hudson V. Louisville, &a. R. Co., 14 Bush (Ky.), 303; Philadelpliia, &c. R. Co. V. Stinger, 78 Penn. St. 219; Keeley V. Shanley, 140 Penn. St. 213; 21 Atl. Rep. 305, 306; Howard v. Union Freight R. Co., 1.59 Mass. 159; 30 N. E. Rep. 479; Flint V. Korwich,&o. R. Co., 110 Mass. 222. » Billman v. Indianapolis, 4c. R. Co., 76 Ind. 166; Whitney v. Maine Central B. Co., 69 Me, 208. Thus, if it neglected to give the signals required by statute, and thereby the ti'avellor with his horse was brought into close proximity to the train, and the horse was fiightened, it is liable for the vesulting damages. Norton v. Eastern R. Co., 118 Mass. S68; Piesoott V. Eastern R. Co., 113 Mass. 870; Ponii- sylvaiiia, &o. R. Co. v. Bamett, 89 Penn. St. 259; Hart v. Chicago, &c. R. Co., 56 Iowa,- 166. , OorUra, WiUktts v. CMoagis, &c. B. Co., 135 111. 491, where a farmer, whose horse with which he was ploughiijg was Trigii.tened by the sudden and On- signalled •approach of the train, was not allowed to recover althoo^h the statute required signals to be made at that point. •* Stamm v. Southern B. Co., 1 Abb. New Cases (N. Y. ), 488 ; Presby ». Grand Trank R. Co. (N. H.), 22 Atl. Rep. 664. ^ IJouisville, Ac. R. Co. v. Schmidt, 81 Ind. 264; Statt v. Grand Trurfk Ry. Co., 24 U. C. C. P. 847; Gibson v. St. Louis, &o. R. Co., 8 M-o. App. 488; Indian- apolis, &c. B. Do. V. Boettcher, 181 Ind. 82; 28 N. E. Sep. 551. See also Paine 17. City of Rochester, 69 Hun (N. Y.), «27; 14 N. Y. Supp. 180; Keecli v. Rome, &c. R. Co., 59 Hun (N. Y.), 617. Hnr- rell I'. Albemarle, &c. R. Co., 110 N. C. 215. In these last three cases the liorse was frightened by an unusual strnotiwio left in or near the street. " Gulp 1). Atchison, i&c. R. Co., 17 Kan. 475; Wabash R. Co. ». Speer, 39 111. App, 599 (unnecessary use of whistle); Albee v. Chappeqna Mfe. Co., 62 Hun (N. Y,), 223 (same); Gulf, jbc, R. Co. ». Box, 81 Tex. 670; J7 S. W. Rep. 875. ' What is a reasonable use is generally ft question for the jury. Philadelphia, &o. R. Co. V. Stinger, 78 Penn. St. 219; Hill V. Portland, &o. R. Co., 65 Me. 488. SEC. 324.] LIABILITY FOE JNJFEIES, ETC. 15S1 way, uunecessarily frighteniiig teaias and oausiug them to run away, is actjomabk negligeoce ;*' and especially is this so wlien, as is often the case, the engineer, seeing a team passing, suddenly lets oft' steam or blows the whistle wi4h the purpose of frightening it.^ In such cases, however, as in others, the contributory nesgligenee of the plaintifi" is a bar to an action, by him. He is bound to Use ordinary care to prevent harmful results flowing from the defendant's wrongful act, or to render the injury as %ht as possible.^ Because of the absolute necessity for .more stringent rules in t-he protection of life aiid property against the perils of the steam-engine with its capacity for mischief, the common-law rule, that the master is not liable fot the tortious acts of his servant committed without the scope of his employment, does not apply to railway companies.* SeG. 325. Iiiabi'lity fpr Injuries while runiiiiiig Xrains on Road Of anotliei: Company. -^ A railway company is responsible for an in- jury sustained by a jpassenger m their cars, whicTl are Wing run by them over anotlier jwad, by reason of a misplaced switch, or Other neg- ligent act of the servant's of the owners of the toad over which the cars are being run.* " It was the dui^y of the company," said Shaw, C. J., 1 Philadelphia, &c R. Co. *. Kfllips, S8 Penn.St. 405^ Pennsylvania R. Co.*. ^Bafnett, 59 Petift. St. 2S9. 8 Chicago, *c. E. Co. c ©iCkSBO, &3 111. 151; Killwan «. In'ddaliapdis, &&. ii,. Co., 76 Itid. 168 ; PhiWd^hS*, &e. K. Oo-.t). Killips, «8 Peliti. Sib. «05. « Cmniell v. JJetToit, *3. R. Co., «2 MKcli. 495 (plainiiff took Ms hbrSfe, un- •nsed to the cars, near ffcein in i«f(iffit *o test him); Ne* Bitmswidc Ry. Co. «. Vanwart, 17 Can. S. G. Kep. -85. Whfefe a lit>rse is frightened at the noise of steam escaping from an engine, and the owner of the hoi-se, instead of leading him atray, leads him towards the engine, and he lyecomes anmanageable, «nd rears and Mis baokwaird and breaks his neck, the ■owner is iguilty of oontribatory negligence. Lonis- ville, &c. E. Co. V, Schmidt,^ 81 Ind. 264. A. Sued B. for injuries sustained by reason of his horses running away, frightened by a BtealB-engine placed itt the Street by B. The jury gave a general "Verdict for "plaiil*- ti6f. It was held that this was not incon- sistent with special findings that A.'e horses had ' run away before ; that the engine was lik)ely to frighten teraes not «a^y M^tlsded, and that x^laintiff saw the e»igi)Ji* ita 'Wtae to avoid danger, biit u^^rehended none, -~ none of these facts AoWiilttf fctfstributory negligeftce. Tnmer «. Bu»hana«, 88 Ind. 147; 42 Am, BeJ). 485. * Kash*tll«, *c. R. Co. V. Stames, 9 Meisk. i(Tenn.| 62. If the alarm-whittle of a locomotive is 'iieeai!BB6ly soiinded iu the Tear «f a teawi while travelling in a tian'ow lane neat the railroad track, and is conttnWBd Whil* the horses a¥e running away with the plaintiff and his convey- ance, the engineer having ftlll kno^'ledge that they are Tiintiing (away, and until the irain comes abreast of th« team, whereby the conveyance is overturned and the plaintiff injured, such sounding of the whistle is wanton, wilful, and I'eckless, if ^ot malicions. Chicago, &c. R. Co. u. Dickson, 88 III. 431; Geol^ia R. Co. ». Newsom, 60 Ga. 4^2. « McElroy r. Nashfta, &c. R. Co., 4 Cush. (Mass.) 400. A railroad Company is -Te^dtoBiMe fot 'defects in the ■i^vs of another Company, which tt TecfeiveS fro'm such ■company and runs over its road as a part of its train, Jtreeisely the same as it 1552 NEQLIOBKOB. [OHAP. XVIII. " to see that the switch was rightly constructed, attended, and man- aged before they were justified in carrying passengers over it." ^ So is for defects iu its own oars. Richardson V. Great Eastern Uy. Co., L. K. 10 C. P. 486. Where a railway company uses for the running of its trains a track belonging to another person, it is liable for injuries to its employes resulting from the unfit- ness of the track for such use. If the de- fendant's use of the track alleged to have been insufficient was only occasional, and for special purposes, and under special in- structions to those in bharge of trains as to the manner of running thereon, it is liable only iu case it was negligence to use the track in that manner and for those purposes. The iiy ury hav ing been received in Illinois, the court erred iu taking from the jury the question whether the injury was caused by negligence of the defendant company or by that of plaintifTs co- employ^, the conductor of the train, there being evidence for the jury on that ques- tion. Under the laws of Illinois, defendant was compelled to operate the track. If, however, the injury was causecj by neglect of the defendant, a recovery will not be defeated by the merely contributory neg- ligence of a co-employ^, but only by that of plaintiff himself, or of some person for whose acts he is responsible. Stetler v. Chicago, &c. E. Co., 49 Wis. 609. It was aftei'wards held in the same case that it is not the duty of a railway company to run its cars upon spur tracks owned by other persons, for the purpose of receiving Or delivering any other merchandise than wheat ; and if such duty were imposed, it would still not be the duty of the dompany to run upon any such track that was not reasonably safe. Where the owners of a private railway track occasionally em- ployed by a railway company for a special use have negligently suffered it to remain in a dangerous condition for such use, though trains are ran upon it slowly and carefully, the company voluntarily run- ning its trains thereon is liable for an injury to one of its own employes caused proximately by such negligence. Railroad companies are liable for an injury to pas- sengers, received while travelling npon the track of another company, even when such injury is occasioned by the negligence of the company owning the track, or its em- ployes. Great Western Ry. Co. v. Blake, 7 H. & 27. 987; Buxton v. Northeastern Ey. Co., L. E. 8 Q. B. 349; Thomas ii. Bbymney Ey. Co., L. E. 6 Q. B. 226; John V. Bacon, L. R. 6 C. P. 437; Champion v. Bostwick, 11 Wend. 571; s. o. 18 Wend. (N. ,Y.) 176; McLean v. Burbank, 11 ilinn. 277. In Murch v. Concord E. Co., 29 if. H. 9, the court said: By using the railroad of another corpora- tion as a part of their track; whether by contract or mere permission, they would ordinarily, for many purposes, make it their own, and would assume towards those whom they had agreed to receive as pas- sengers all the duties resulting from that relation as to the road; and if accident resulted to , such passengers from any failure of duty of the owners of the road, for which they would be responsible it the road was their own, their remedy would be over against the owners." See Peters v. Rylands, 20 Penn. St. 497. The same doctrine applies where a complete train is run over the track of another company by virtue of an agree- ment, and an accident is occasioned by the negligence of the employes of the company owning the track. Keep v. Indianapolis, &o. R. Co., 10 Fed. Eep. 454. And the same rule prevails where one railroad com- pany uses the station of another, and a passenger of thb first company slips and falls upon pieces of ice which have been negligently left in the station by the com- pany owning the same ; the passenger is entitled to recover damages from the first company. Seymour v. Chicago, &c. R. Co., 8 Biss. (U. S.) 48. So where an in- jury to a passenger is occasioned by a defect in a bridge maintained by another upon the company's grounds. Chance V. St. Louis, &c. R. Co., 10 Mo. A pp. 851. In Sprague v. Smith, 29 Vt. 421, an accident occurred to the car of tlie defendant company while standing npon another company's road, solely in conse- ' Murch V. Concord E. Co., 29 N. H. 9 ; 61 Am. Deo. 681. SBC. 325.] LIABILITY FOR INJURIES, ETC, 1553 it has been held that a railway i company running its. cars over a railway owned by the State is liable for an injury to a passenger, quenee of the negligence of the agents and servants of such other, company. Under the circumstanpes, the court held the defendant not liable. "The carrier," said Redfibld, J., " cannot be regarded as liable, we think, for all the acts of all the operatives of the companies over whose roads he carries the plaintiff, unless some connection between the roads, of a charac- ter similar to tliat of general partnership, or the consolidation of their interests in the carrying business is shown, which was not done in the present case." A railroad company which grants the use of its road to another con^pany, is responsible for accidents caused to passengers which it itself carries, by the negligence of the trains of the other company thus running by its permission. Railroad Co. v. Bar- ron, 5 Wall. (IT. S.) 90 ; Chicago, &c. R. R. Co. V. McCarthy, 20 111. 385; Ohio, &c. E. E. Co. V. Dunbar, 20 111. 623 ; Chicago & R. I. R. E. Co. v. Whip- ple, 22 HI. 105 ; Nelson v. Vermont, &e. R. R. Co., 26 Vt. 717; McElroy n. Nashua, &c. E. R. Co., 4 Cush. (Mass.) 400 ; Cly- mer v. Central E. B. Co., 5 Blatch. (U. S. C. C. ) 317 ; Schopman v. Boston, &c. R. R. Co., 9 Cush. (Mass.) 24 ; Nashville, &c. R. R. Co. V. Carroll, 6 Heisk. (Tenn.) 347 ; Sawyer v. ,Eutland, &c. E. R. Co., 27 Vt. 370. So it is liable to the owner of stock killed by the train of another company, which it has permitted to use its road. Toledo, &c. R. R. Go. v. Bumbold, 40 111. 143. Or to persons not passengers, inflicted by the train of another company under the charge of its servants. ■ Fletcher B.Boston, &c. R. R. Co., 1 Allen (Mass.), 9. It seems that a company is liable to the passengers of another company run- ning its train upon the first-named com- pany's track, for an injury occasioned by its own negligence or that of its employes. Keep V. Indianapolis & St. Louis R. R. Co., 10 Fed. Rep. 454. Whether the principles above laid down will apply where one company is anthorized by stat- ute to run its cars over the track of an- other, seems doubtful. It has been held in England that they will apply. Thomas V. Rhymney Ry. Co., L. R., 5 Q. B, 226 ; s. c. L. R. 6 Q. B. 266. But see Wright V. Midland Ry. Co., L. R. 8 Exch. 137. Where the servant of one railroad com- pany, running its trains over the track' of another is injured by reason of the negli- gence of the servants of such other com- pany, he is not debarred from bringing his action against the company employing him. The servant occasioning the injury is not to be regarded as a fellow-servant. Catawissa R. R. Co. v. Armstrong, 49 Penn. St. 186. In Stetler v. Chicago, &c. E. R. Co., 46 Wis. 497, it was' held that a railroad company, running its trains on the track of another company, is liable to its employes for an injury occa- sioned by a defect in the track. In Clark V. Chicago, B., &Q. R. R. Co., 92 111. 43, it was held that where an engine-driver of one company, running upon the road of another, was injured in a collision occa- sioned by the negligence of the servants of such other company, he was not entitled to recover damages from the company em- ploying him, the collision having been one of the risks of his emi)loyment which he undertook to run. Where actions are brought by the servant of the company Using the track against the owners thereof, the same principles apply. In Vose v. Lancashire, &c. Ry. Co., 2 H. & N. 728, where a station was jointly occupied by two railroad companies, a servant of one injured by the negligence of the servants of the other, was held entitled to recover damages from the company the employes of which were in fault. The employes were held not to be fellow-servants. To the same effect is Warburton Ry. Co., L. R. 2 Exch. 30, where the porter of a rail- road company, using the station of an- other company, *was alloiMed to recover damages for an injury occasioned by the negligence of the servants of the latter. In Swainson v. North-Eastem Ey. Co., L. R. 3 Exch. Div. 341, it appeared that the stations of two railroad companies closely abutted. The plaintiff was a signal-man, employed by but one of the companies,' and in its uniform. He discharged his duties, Ijowever, in connection with the trains of both roads, and was injured by 1554 NEGLIGENCE. [CHAP. XVIII, although the State furnishes the motive power, and the injury was to tlie guard of a train 'belonging to an- ©tlier conipaiiy, while paflgimg over a por- tion of the line of tihe former cowpamy, Caltlet ®. Caledonian Ry. 'Co., 9 Sc. iS«Ss. Cas. (SdsiBries) 838. If a'train of cars of c'oTrt "hoVever, decided the ooaitrary, and one railroad company, runniiig on the road the plaintiff Tecovewd. Smith i>. New of anotheir company, bo under the exclu^ York & Harlem R. R. Co., 8 Duer (N. Y the negligence of the temploy^s of the other company. He brought an action •against saul company, and it was etrenn- •ously argued tha* the negligence in quBS- tion -was that of a fellow-seryant, '"'-" The 225 ; Show v. Hoasatonic R. R. Co.,'8 Al- len (Mass. , 441 ; Cnity v. Erie R. R. Oo., 8 Thompson & C. <N. Y.) 244. Where there is a partnership agreement betwaan two roads, or any arrangement in the nature of that, the servants of either road will be- come oo-employts, Mid cannot of coui'se i-eeover for the negligent acts of crtcto other. Swivinson v. North-Eastern Ry. Co., L. R. 8 Exoli. Div. 341. But an agi-eemeat between two roads to connect at their respective termini, atid to eel through tickets and charge through rates, is not such an arrangement, at least where the fare and freight remain distinct oa each line. In swch case the servants of t)he respective companies are not to be con- sidered as co-employ69. Carroll ». Minwe- gota Valley R. R. Co,, 13 Minn. 30. Tl»o defendant was a railway company, char- tered hy the State oi' Virginia, and used the track of a Washington R. R. Co. hy agreement. The plaintiB, while flagging the dfffendanl's train over the road of the Washington company, was for the time considered the servant ell the defemdant, and therefcffe not entitled to recover for any injury occasioned by the negligence of another servant, without allowing that the ■defendant was guilty of negligenOe in se- lecting the servant by -Whosie fault th* accident happened. Mills v. Orange, Alex* andria, & Manassas R. R. Co., 2 MacA. (D. C.) 814. An employ^ of a railway company lawfully using its twicfcs, over which another company has a right of way, has a right to act upon the presump- tion that the latter company will conform to the rules, as to giving signals, etc., prescrilied by the company by peiwission i'rom which it uses sue)) tracks. Roll v. Northern Central R. R. Co., 15 Hun UN Y.), 496. A railway compahy is lia- ble in •damages for injuries caused by the fault of a signal-man in its employment wive icontlv>l of the serva»ite of the lattci', the latter is Uahle for all damages oecui-- ring through negligeaoe. But if the ser- vants of hoth fiai^awi«B jointly control the train, both companies arc liable. Nashville, &o. R. R. Co., ». Carroll, 8 Heisk. (Tenn.) W. When one. rail- way uompainy has a right, by contract, t» run its trains over the track of anotliM company, the latter company is liable for injuries caused solely hy thts negligWMe of its own switchman, itt not propefly *t- tending to his duty, to an engin«« tof the former company while operating hit engine On said track ; and also to th* other <;ompamy for damage 'to its proiietty, •Me-Trill ». Central Vt. H. R. Co., -54 Vt, 200. Where a main trunk vailway com* paray filimishes the motive power, engi- neer.-;, and conductors to transport Mt6 cars ol another intSrsectimg railway com- pany on Its road, it is responsiltle for an injury done to a brakeman employed by «Mid on the cars of the interscoting com- pany, through the negljgetioe of its en- gineer. Siloh brakeman is not a servant or employ^ of the fitst-namcS company so as to iirotect it from responsibility. The pi'oper test of service is to consider who employs, pays, and has the right to dis- charge such brakeman. Smith r. Nor- thern 'Central R. R. Co., 1 Pearson (Pa.), 243. Two companies were occupying the same line. The deceased, a fireman, was injured by the neglect of the station- master of the other company. The en- gine-driver on the same train with the deceased, and also another co-employi ol the deceased, were guilty of contrtbutory negligence. It was held that the repre- sentatives of the deceased had a valid cause of action against the company "whose station-master caltseid the accident, and that the action was not barred by the contributory negligence of his own cq-em- ployAs. Hobbs v. Glaagaw & South- West- SEO, 325.] LIABILITY FOE INJURIES, ETC. 1555 in fact caused by the raegligraice of the servants of the State.^ But where a railway corapaHy rums its cars over aMth-et road, it having jflatoiff agaawst tiie tiefen&nt, it was held that he was not eaititled te reoorer. Wright M. Midland Ry. Co., L. E. S Kxchq. 137. Where a railwfay company, opet'atiiig its own road in its own name, contracts with another company to make up its train in the depot of the lattel\, the former company is liable for an in- ]iiry to a passenger occurring on its train while feeing made up by the servants of the latter, and it makes no difference that the servants were employed and paid by the Satter company. Hannibal, <&c. B. B. Co. V. Mai'tin, 11 Bradwell (111.), 386. The plaintiff was a passenger by the de- fewdant's railway, to be tarried from T. to T. To reach T. it was nsoessary to travel over a line belonging to another company. "While passing over the lat- ter line the tralii in which the plain- tiff was came into collision with a bul- lock, which had stvayed on. to 'tlie line ft'om aft' adjoining field by breaking through the fence. The fence was in fact 'defectisre, but had been lately repaired, and was in appareutly good coaditiicai. The plaintiff, being jjjjuned by the collision, sought to recover damages from the de- fendant. It was held that the contEact having b8en made with ,the defendant, it was th© proper party to be sued. Bux- ton V. North-Eastem Hy. Co., L. B. 3 Q. B. 549 ; Themasu Bhymney Ry.-Co., JL. B. 5 Q. B. 226. Where two 'or more companies establish a connecting line and contract to carry a passenger to the ter- minus of said lijie, the terminal carrier is liable to him as a common , carrier, although his injury may have arisen from the ne^ect of another with whom it has contracted fot motive jiower. A corpo- ration fawiishing motive power to a rail- way jjompany, but not acting or chiartered to act as a commoB carrier, is irot bound to use more than the ordinary skffll and dili- gence which its employment needs, and is only liable for direct negligence and unskilfulness. A common ca«'rier is lia- ble to a passenger whom it has oontiafeted to convey to a particular point, if he Is in- jured while being so conveyed, through the negligence or unskilfulness of employes of ern By. Co., B Sc. Sess. Cas. (4th Series) 215. Where two or more persons or corporations are '&f crating a railway, their liability to an employe for an injury re- sulting from-de'fective machinery furnished by them for use jn the course of his employment is several as well as Joint. An action is maintainal)le against one of them. Kain «. Smith, 89 JT. Y. -458. 1 Ryland v, Peters, 20 Peiui. St. 497. One carrier is not liable for an injiu-y to a passenger upon one of its cars, of which another carrier is thts exclusive bailee. Smith B. St. Xiouis, &a. B. £. Co., 9 Mo. App., S98. A train of the defendant, whilst Stationary wn its railway, was run in to by another train. The ta'ain in fault was the moving, and mot the stationary jrain. Several railway companies had "'running powers" over the part of the defendant's line en which the collision oc- curred, and no evidence was given as to whether the moving train belonged to or was under the conti'ol of the defendant. It was held that in the labsewce of evidence to the contrary, it mast be presumed that the train which caused the accident be- Iwnge'd to or was under the control of the defendant. Ayles p. South-Eastem By. Co., L. E. 3 Exchq. 146. Where a rail- Way ■company leases to another "company the right to pass over a portion of its lime, the lessor company controlling the trains and motive power on such leased line, tk« lessor is liable for an injury to a passenger of the lessee who is injured by , the negligence o!' the employes of the lessOT. Wabash, &e. R. R. Co. «. Peyton, 106 111. 534. The N. Co. had statutoi-y aflitholitj* to run over a portion of the defendant's line, paying a cer- tain toll to defendant. The signals at the point of junction between the two lines were under the control of the de- fendant. Owing to the servants of ihe N. Co. negligently disobeying these sig- nals, a train of the N. Go. ran into a train of the defendant in which the plain- tiff was, causing him damage. There was no negligence on the part of any of the defendant's servants. In an action for injuries sustained, bion^t b;^ the 1556 NEGl-IGENCB. [OHAP. XVIII. no control over the same, the company owning the road furnishing the motive power arjd servants, the company owning the cars will not be liable for an injury directly caused, without its fault, by the misconduct or negligence of the operators of the other road, — as, in the case of a collision produced' by the carelessness of the company owning the road.^ So, wherQ a company run their cars over part of another's road, under such an arrangement, they will not be liable to the owner of cattle destroyed by one of their locomotives, but without any negligence on the part of their servants, in consequence of an lOmission on the part of the other company to erect cattle- guards, as required by statute ; ^ though it will be different where they are in fact the lessees of the road, for, in that case, the control and management of the road are vested in them, and they are, within the meaning of such a statute, the agents of the company owning the road.' How far the company owning the road is liable, under such cir- cumstances, to the party injured, is not clearly settled ; * but the better opinion seems to be that only the company which is in the exclusive control of the cars is liable.^ The want of privity of a corporation with which such carrier has companies the lines are worked, and the contracted for motive power. In such fares paid by the passengers apportioned cases the corp|)ration furnishing the mo- between them. The plaintiff was conveyed tive ^ower is also liable to the passenger if in the same carriage which he entered at the injury is sustained through the direct Paddington towards Milford, and after the negligence or , unskilfulness of its em- train had passed on to the line of the South ploy^s. Keep v. Indianapolis, &o. R. Co., Wales Railway Company it came into col- 10 Fed. Rep. 45.4. Hsion with a locomotive engine' left on that 1 Sprague v. Smith, 29 Vt. 421. line by the servants of the South Wales " Parker v. Bensselaer, &o. R. Co., 16 Railway Company. There was no negli- Barb. (N. Y. ) 315. gence on the part of the driver of the train. s Clement i;. Canfield, 28 Vt. 302. See It was held, in the Exchequer Chamber, Sprague v. Smith, 29 Vt. 425. that the Great Western Railway Company McElroy,!). Nashua, &c. K. Co., 4 were responsible to the plaintiff, since, qnsh. (JVlass. ) 400. „nder the circumstances, there was an im- braith V. St. Loms, &o. E. B. Co., 9 plied contract on their part that they Mo. App, 698. In an English cose, — would use reasonable care to maintain the Great Western Ry. Co. -o. Blake, 7 H. & whole line from Paddington to Milford in JV. 987, -:theplamtifr purchased a ticket u condition fit for traffic. But in this at the Paddington station of the Great country the rule generolly adopted is that Western Railway Company, and paid one the sale of a ticket over several different tZ , !»« ^'"■^^yf"™ from tlience to lines does not make the company selling Milford, in Pembrokeshire. The line of the ticket liable for the negligence of other the Great Western Railway Company ter- companies over whose line the passenger mmates a^short distance beyond Gloucester, is to be can-ied. The company selling the and ,th^ line from thence to Milford be- ticket is treated as the agent merely, of longs to the South Wales Railway Com- the connecting lines. Nashville, &c. R.R. pany. By arrangement between the two Co. v. Spraybeny, 8 Boxt. (Tenn.) 341. SEC. 325.] LIABILITY f6k INJURIES, ETC. 1557 contract has been pbintied out as an objeclion, and in a case before cited,^ it was said that a railroad company, by giving permission to another company to use apart of its track, does not bind itself to make its track safe, nor to put it in repair, nor to make any change in its existing state,^ — in particular, by furnishing proper landing- places for the convenience of the other company. In that case, the company owning the road had left open spaces in the track near its freight-depot at one of its termini, where the track passed over a common road, which were intended to act as a cattle-guard. A pas- senger in a freight^train belonging to the other company, attempting to get in the train at night, went too far and fell through one of these spaces. It was held that the company which owned the road was not liable. There were other elements of decision in the case, however, and it may perhaps be doubted whether some of the dpc- trines advanced in the opinion were necessary to its determination. It is true that in such a case there is no technical privity of contract between the passenger and the company owning the road ; but to support an action on the case for negligence, there need not be any such privity. It cannot be doubted that, where one person, .being on the land of another with his license and consent, express or im- plied, suffers an injury through the negligence of the latter or his servants, — as, for instance, by falling into a pit carelessly left open, — the owner of the land is liable in case, though there is no question of any contract." The first company may, by contract, bind switch and side track under the exclusive itself for the entire route, but the sale of management and control-of the latter. In the ticket is not sufficient tp establish consequence of this switch being mis- such a contract. Harlan v. Eastern B. placed, through the gross negligence of Co., 114 Mass. 44; Knight i>. Portland, the servants of the B. & B. Ca., a locomo- &c. R. Co., 56 Me. 234. See this subject tive of the B. & W. Co.. of which the elaborated, post, § 359. plaintiff, ^ho was an employe of that 1 Murch V. Concord E. Co., 29 N. H. 1. company, was the engineer, was thrown * Corby v. Hill, 4 C. B. N. s. 556 ; from the track, and he was seriously in- Frees v. Cameron, 4 Rich. (S. C.) 228 ; jured. It was held that the B. & B. Co., Phila., &c. B. Co. v. Derby, 14 How. (U. the owners of the road, were liable. So, S. ) 468 ; Godley v. Haggerty, 20 Penn. where a railroad company had actually St. 387. The decision on this subject in leased its road to another, the former was Sawyer v. Rutland, &o. B. Co., 27 Vt. held liable for the negligent acts of the 870, seems to be of a more satisfactory latter, of a similar character. Nelson v. character. There, two railroad companies Vermont, &c. E. Co., 26 Vt. 416. See, had agreed for their mutual convenience however. Biggs v. Terrell, 12 Ired. (N. C.) that the cars and engines of the one, the, 1. In Bailroad Co. v. Norton, 24 Penn. E. & W. Co., might run over a portion of St. 465, one company having, by contract, the road of the other, the R. & B, fio.\ such a right to use the road of another, Upon this part of the road there was a the plaintiff had, with the authority of 1558 NEGLIGENCE. [CHAP. XVIII. A CQiiiipamy operating its traims over the track of anothw is liable for all the. eonsequences of its own negligence. The mere fact that it was Oiu some other line does not affect, its liability for injuries of which its own negligence was the proximate cause.-' It is therefore bound to exercise the same care to. prevent injury to travellers at crossings which would be required of the company owning the road in running its trains.^ Where a passenger is injured by reason of a defect in the car in which he is being carried, clearly the carrier cannot claim any ex- emption from liability on the ground that the car was the property of another company.* " The rule of law> in regard to passenger carriers who run over other roads than their own seems now to be pretty well established that the first company is responsible' for the entire route, and must take the risk of the negligence of the employi^s of the pther companies." * Where a passenger or other person is injured by the concurrent negligence of two companies' in causing a collision, or otherwise) he may recover of both jointly, or of either; A company does . not escape liability merely beeause the negligence of some other person or Gorporatiou concurred with its own wrongful act in causing the injury.^ The rule upon thia point is most excellently expressed by Marston, J., in a Michigan case/ where he said : " An act. wrong- fully done by the joint agency or co-operation of several persons will one of the servants of the latter, placed own trains, or for fires or other injuries on the track a sawing-machine J anii, while which they cause. Stephens i>. Daven- engaged with it, was injured by a parsing port, &o. R. Co., 36 Iowa, «27. train of the former. It was held that his » Webb v. Portland, &o. R. Co., 57 own. negligence precluded his recovering, Me. 117. though there was negligence on the part » Jetter ». New York, &e. R. Co., 2 of the company running the train. Abb. App. Dee. (N. Y. ) 458 1 Fletcher i>. 1 Fletcher v. Boston, &e, R. Ca, 1 Boston, &c. R. Co., 1 Allen (Mass.), 9 ; 79 Allen (Mass. ), 9 ; 79 Am. Deo. 695 j Murch Am. Deo. 895. V Concord R. Co., 29 N. H. 9; 61 Am. « Redfield on Ry'sy p. 303, approved Dec. 631 ; Illinois Central R. Co. v. in Stettler i;. Chica«o, &e. R. Co., 46 Wis. Kanouse, 39 III. 272; 89 Am. Dec. 807; 497. Mills f. Orange, &c. E. Co., 1 McArthur » Wabash, &c. R. Co. v. Shacklet, 105 (D. C), 285 ; Hanover E. Co. .,. Cbyle, 55 111. 864 ; 12 Am. & Eng. H. Cas.. 166 ; Penn. St. 396; Webb v. Portland, &c. 44 Am. Rep, 791 ; Cuddy v. Horn, 46 ; '™^''' "^ ' Mulherrini;. Dela. Mich. 596 ; 41 Am. Bep. 178 ; Transfer waw, &c R. Co., 81 Penn. St. 866 ; Burch- Co. v. Kelley, 86 Ohio St. 86 ; 38 Am. m v\ .l**'^' °'''*''''' ^' °°-' ^^ '^''''''' ^^P- 658; Pittsburgh, &o. B. Co. v. (». Y.) S89 i Eaton v. Boston, &o. R. Spencer, 98 Ind. 186 Co., II Allen- (Mass,), 500. Where two « Cuddy v. Horn, 46 Mich. 596; 41 companies operate ti'adns over the same Am. Rep. 178. road, each is liable for stock killed by its SEC. 325 ffi.J PRESUMPTION OF NgGI^IGENCB, ETC. 1559 render them lialale jointly or severally. Tlae injury done in this case jesnJted. fronj a collision caused by the cofatemgoraueQus act, of two separate wrong-doers, who, though not acting in concert, yet by their simultaaeoua wrongful acta put in motion the agencies which to- gether caused a single injury ; and for this the injured party could receive but a single compensation. ' It is the fact that they all united in the, wrongful act, or set on foot or put in motian the agency by which it was committed, that renders them jointly liable to the per- son injured. Whether the act was done by the procurement of one person or of many, and if by many, whether they acted with a com- mon purpose and design in which they all shared, or from separate and distinct motive, and without any knowledge of the intentions of each other, the nature of the injury is not in any degree changed', or the damages increased which the ijarty in,jured has a right to re- cover.' " 1 The same principle baa been applied in similar cases in other jurisdictions.* Sec. 325 a. Presumption of Negligence : Burden of Proof. — Prop'. erly speaking there is no presumption of negligence arising from the fact of injury ; negligence,, Uke all other wrong-doing, is not to be presumed but must be proven.' As said in a leading case, " There is 1 In this case it appeared that a Cath- olic, priest ehartered a steam yacht, " The Momie," to carry a party of altar boys from Detroit to Monroe and back,, th« owners furnishing the necessary hands, for the voyage and haviing control of the yacht. While up(jn the trip the yacht was run down by the defendant's TOSseV, " The Garland. " The plaintiflF's intestate was a passenger on "The Momie," and the latter vessel being sunk in consequence, of the collision, he was drowned. The Botion. was against the owners of both vessels',, which seemed to be mutually negligent ; a recovery by tke plaintjif was allowed. Cuddy «; Horn, 46 Mich., 696 j 41 Am. Rep. 178. ^ Colegrove ». New York, &c. E. Co., 20 N. Y. 492 , 75 Am. Dec. 418 ; Stone v. Dickinson,. 5' Allen (Ma^a), 31 ; 81 Am. Deo. 727 ; Cooper e. E. T. Co., 75. N. Y. 116 (collision of two vessels) ; Holland v. Brown, 35 Fed. Rep. 43. See also Hill- man v.. Newington, 67 Cal. 66 ; 23 Alb, L. Jour. 294; Masterson v. IT> Y. Central E. Co., 84 N. Y. 247 ; 38 Anv. Rep. BIO ; Philadjelphia, &c. E. Co, v. Boyer, 97 Penn. St. 91 ; Walter ■». Chicago^ &c. E. Co., 39 Iowa, 33. In the case of Eaton ». Boston, &&. B. Co., H Allen (Mass,J, 500 ; 87 Am. Dec. 730, in an action by a passenger for inju- ries sustained from a collision, the company, defended on the ground that the proxipiate cause of th» accident was that another train over whichi defendant had no control, ran into that on which plaintiff was being carried. It appearing, however, that de- fendant had been guilty of negligence, the court held that the, defence could not avail i the fact thjit a third party contrib- uted to cause the injury could not release defendant whose negligence was one of tha- concurring causes. ' That the fact of damage- does not create any presumption of negligence, see East Tennessee, &g. R. Co. b. Stewart, 13 Lea (Tenn.), 432 ; 21 Am- & Eng. E..Ca8. 614; Louisville, &c. E. Co. i: Allen, 78 Ala. 494 ; 28 Am. & Eng. B. Cas.. 514 ; Caae V. Chicago, &c. E.Co., 64 Iowa, 762 ; Terre Haute, &c, E. Co, v. Clem, 123 Inil. 15 ;, 42 Am. & Eng. E, Cas. 229 ; Phila- delphia, &c. E. Co, V, Stebbin, 62 Md. 1560 NEGLI&ENOE. [chap. xvin. . no presubiption of negligence as against either party except such as arises from the facts proved. Indeed, the presumption of law is that neither party was guilty of negligence, and such presumption must prevail until overcome by proof." ' But there are cases in which the maxim res ipsa loquitur applies, and from the essential character of the injury, or the admitted circumstances attending it, a presump- tion of negligence is created.^ Thus, where experience has demons strated that a particular business can be carried on, and certainf , machinery used, without causing injury, then the mere fact of dam- age may be sufficient under such circumstances to create a presump- tion of negligence which the defendant must overcome.' This S04 ; 19 Am. & Eng. R. Ors. 86 ; Barnard V. Philadelphia, &o. K. Co., 60 Md. 556 ; 15 Am.'& Eng. B. Gas. 484 ;' Blanchette V. Border City Mfg. Co., 148 Mass. 21; Holbrook u. Utioa, &o. R. Co., 12 IT. Y. 236 ; 64 Am. Deo. 502, n. ; Huff v. Austin, 46 Oliio St. 386 ; Higgs v. Maynard, 12 Jur. N. s. 707-; 14 Week. Rep. 610; 2 Thompson on Neg., p. 1227, § 8. See also State v. Baltimore, &c. R. Co., 68 Md. 221 (dead body found lying under a car, no presumption that negligence of the company caused his death) ; Soreuson v. Menasha Paper Mfg. Co., 66 Wis. 338 ; 16 Am. & Eng. EnCy. Law, pp. 448 et seq. 1 Cleveland, &c. R. Co. v. Crawford, 24 Ohio St., 631 ; 16 Am. Rep. 633. See also Smith v. Memphis, &c. R. Co., 18 Fed. Rep. 804 ; Lyman v. Boston, &o. R. Co. (N. H.), ^0 Atl. Rep. 976 ; 45 Am. & Eng. R. Gas. 169 ; Bundy, v. Hyde, 50 W. H. 116 j State i). Hodge, 60 N. H. 510; Gray v. Jacksbn, 61 N. H. 9 j Bickford v. Dane, 68 Jf. H. 185. '■' See Holbrook v. Utiua, &o. R. Co., 12 N. Y. 236 ; 64 Am. Dec. 602, n. ; Kearney v. London, &o. R. Co., L. R. 6 Q. B. 769 ; Bigelow on Torts, 596 ; 2 Thompson on Neg., 1227-1285 ; Cooley on Torts, § 796 et seq. " There must be some reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from a want of care." Scott v. London, &c. Docks Co., 8 Hurl. & Colt. 696. ?ee also remarks of Pollock, C. B., in Byrne v. Boadle, 2 Hurl. & Colt. 722, and of CocKBUKN, C. J., in Kearney v. London, &o. Ry. Co., L. R. 5 Q. B. 411 ; 6 Q. B. 759. In Scott V. London, &c. Dock Co., 8 H. & G. 596, the plaintiff, as he was passing by a warehouse of the defendant, was in- jured by bags of sugar falling from a crane by which they were lowered to the ground. The court said there must be reasonable evidence of .negligence j but where the thing is shown to be under the manage- ment of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the ab- sence of ex!planation by the defendant, that the accident arose from want of care. This case is cited, with approbation, in Ti'ansportation Co. ». Downer, 11 Wall. (U. S.) 129. In Mullen v. St. John, 57 N. Y. 667, the plaintiff, who was upon a street sidewalk, was injured by the fall of an unoccupied building owned by the de- fendant ; and it was held that from the happening of such an accident, in the absence of explanatory circumstances, neg- ligence should be presumed and the bur- den east upon the owner to disapprove it. Rose V. Stephens, &o. Trans. Co., 20 Blatohf. (U. S.)4n. » Mulcairns v. Janesville, 67 Wis. 24 ; Piggott V. Eastern, &c. Ry. Co., 8 C. B. 229 ; Cooley on Torts (2d ed.), [592], 708; 794. See also, for cases involving the application of the maxim, Texas, &o. B. SBC. 325 a.] PRESUMPTION OF NEGLIGENCE, ETC. 1561 principle is frequently applied in cases involving loss by fire caused by sparks thereon from a railroad engine. The rule is well estab- lished that where property is damaged by the escape of fire from a passing engine, mere proof of the damage creates a presumption that the company using the engine has not discharged its duty.^ In some jurisdictions it is provided by statute that a presumption of negligence shall arise from the fact of injury. In Mississippi and Georgia, the presumption applies to all injuries caused by the opera- tion of a railroad ; ^ but in most of the States it is confined to injuries resulting from the spread of fire from the engines.' The violation of a statutory duty on the part of a railroad company is always some evidence of negligence,* and may in some cases create a presumption Co. V. Suggs, 62 Tex. 323 ; Kearney v. London, &c. R. Co., 5 Q. B. 411 ; Lowery V. Manhattan R. Co., 99 N. Y. 158, 52 Am. Rep. 12 (fire falling from engine on ele- vated road, whereby horse was made to run away) ; Wiedraer v. New York El. R. Co., 41 Hun (N. Y.), 284 ; Cummings v. National Funjace Co., 60 Wis. 603; Robinson v. N. Y. Central R. Co., 20 Blatchf. (U. S.) 338. 1 Galveston, &c. R. Co. v. Home, 69 Tex. 643 ; 85 Am. & £ng. R. Cas. 242 ; Louisville, &c. R. Co. v. Reese, 85 Ala. 497 ; 38 Am. & Eng. B. Cas. 342, 345, n.; TQley v. St. Louis, &a. R. Co., 49 Ark. 535 ; 32 Am. & Eng. B. Cas. 324; White V. Chicago, &c. B. Co. (S. Dak), 45 Am. & Eng. E. Cas. 565 ; 47 N. W. Rep. 146 ; Clevelands v. Grand Trunk E. Co., 42 Vt. 449 ; Spaulding i>. Chicago, &o. B. Co., 30 Wis. 110; 11 Am. Rep. 550. Compare Ruffher v. Cincinnati, &c. R. Co., 34 Ohio St. 96. But proof of proper con- struction of the engine, and use of proper appliances and careful management, rebuts the presumption arising from escape of fire. Koontz V. Oregon, &c. R. Co., (Oreg.), 43 Am. & Eug. R. Cas. 11 ; 23 Pao. Rep. 820. Compare, however, Chicago, &c. R. Co. o. Goyette, 133 111. 21 ; 43 Am. & Eng. R. Cas. 36. » Columbus, &c. R. Co. v. Kennedy, 78 Ga. 646 ; 31 Am. & Eng. B. Cas. 92 ; Central R. Co. v. Brinson, 64 Ga. 475 ; Vickers v. Atlanta, &o. R. Co., 64 Ga. 306 ; 8 Am. & Eng. R. Cas. 337, 343 ; East Tennessee, &c. R. Co. v. Hartley, 73 Ga. 5 ; Brunswick, &c. B. Co. v. Hoover, VOL. II. — 48 74 Ga. 426 ; Code of Miss. (1892), § 1808. The fact that a precedent wrong on the part of the injured party produced the conditions which resulted in the injury does not prevent the application of the statute. Vicksburgh, &e. R. Co. v. Phillips, 64 Miss. 693 ; 30 Am. & Eng. B. Cas. 587. Nor Is the presumption overcome by proof that the whistle was heard blowing, etc., at the time of the accident. Mobile, &o. R. Co. v. Dale, 61 Miss. 206 ; 20 Am. & Eng. R. Cas. 651. Compare Jones v. Bond, 40 Fed Bep. 281. The presumption does not apply in an action by a shipper for goods lost. Chi- cago, &c. B. Co. V. Trotter, 60 Miss. 442. ' See Karsen v. Milwaukee, &c. R. Co., 29 Minn. 12 ; 7 Am. & Eug. R. Cas. 501 ; 16 Am. & Eng. Ency. Law, p. 451 ; post. Chapter XIX. * Faber v. St. Paul, &c. R. Co., 29 Minn. 465 ; 8 Am. & Eng. R. Cas. 277 ; Phila- delphia, &c. R. Co. V. Stebbins, 62 Md. 504; 19 Am. & Eng. R. Cas. 36; 2 Thompson on Neg., 904 ; 1 Shear. & Bed. on Neg. (4th ed. ), § 13. Negligence is not necessarily to be presumed from the speed at which a train is going. Thus the fact that a railroad train was run at an unlawful rate of speed within a city is no ground for imputing negligence to the railway company, as between it and its employ^, where there is no evidence that the injury to the latter was caused by collision with any object. Maher ». Railroad Co., 64 Mo. 267 ; Holman v. Railroad Co., 62 Mo. 562 ; De Graff ». Rail- road Co., 76 N. Y. 125. The statute limit- 1562 NEGLIGENCE. [chap, XVIII. of negligence which defendant must overcome by proof.^ But where there is no other evidence in the case, in order to fix the liability of the company, it must be made to appear that the violation of the statute was the proximate cause of the injury,^ unless of course the statute plainly provides that such a violg,tion shall be conclusive proof of negligence and of the liability of the company .^ In view of the high duty owing by carriers of passengers, and the character of the undertaking assumed by them, it is generally held that in case of an injury to a passenger a presumption of negligence arises and the burden of proof rests upon the carrier to show that it exercised the care required by law in the discharge of its duty.* ing the rate of speed at which railroad trainu are to be run within a city is a limitation made for the protection of those crossing the streets of such city, and not so much for the protection of the employes on the trains, although it might Indirectly be for their protection also. Ewen V. Railway Co., 38 Wis. 633 ; Iiockwood V. Chicago, &c, B. Co., 65 Wis. 50. In Burlington, &o. R, Co. v. Wendt, 12 Neb. 76, the fact that a rail- road train ran at a speed of eighteen miles an hour within the corporate limits of a city was held, in an action for killing an animal, not to be alone sufficient to show gross negligence. No arbitrary rule as to the rate of speed at which a train of cars may be run, with due regard to the safety of persons and property, can be applicable to all portions of a town or city alike. Evidently a rate which in one portion, or under certain circumstances, might be entirely reasonable, in another and more thickly inhabited portion, or under dif- ferent circumstances, would very justly be deemed unwarrantable, and evince a most reckless disregard for the rights both of persons and property. As showing that speed alone, even although it be at an un- lawful rate, is not sufficient to fix a liabil- ity for an injury, the case of Brown v. Buffalo, &c. E. Co, 22 N. Y. 191, is in point. That was an action for damages caused by the killing of the plaintiffs intestate at a street crossing in the city of Buffalo. It appeared that there was an ordinance prohibiting the running of trains within the city faster than a cer- tain rate, with a fixed penalty for exceed- ing it. On the occasion of the injury complained of, the speed of the train was greater than the ordinance permitted, and the court charged the jury that this fact alone constituted negligence on the part of the railroad company, for which it was liable if the intestate were himself with- out fault. This instruction the Court of Appeals held to be erroneous, and ordered a new trial. See also on this point, Cin- cinnati, &c. B. Co. V. Lawrence, 13 Ohio St. 66. I 1 Shear. & Red. on Neg. (4th ed.), §§ 11, 13 i 2 Thompson on Neg., p. 1231, § 5 ; Knnplle v. Knickerbocker Ice Co., 84 N. Y. 488; Karle v. Kansas City, &o. R. Co., 55 Mo. 476. * Pennsylvania B. Co. v. Hensil, 70 Ind. 569 ; 86 Am. Rep. 188 ; Hayes v. Michigan Central R. Co., Ill U. S. 228, 240 ; 18 Am. & Eng. R. Cas. 394 ; Quincy, &o, R. Co. V. Wellhoener, 72 111. 60; Billing V. Breinig, 45 Mich. 65. * The only cases which appear to con- strue such statutes so that proof of a violation of the statute at the time of the injury is conclusive as defendant's liability, are found in Tennessee. See Tennessee, &c. R. Co. V. Walker, 11 Heisk. (Teun.) 388 ; Nashville, Sbc. R. Co. e. Thomas, 5 Heisk. (Tenn.) 262 ; Collins v. East Tenn. &c. E. Co., 9 Heisk. (Tenn.) 841. * Bedford, &c. R. Co. v. Rainbolt, 99 Ind, 551 J 21 Am. & Eng. R. Cas. 466 (giving way of a bridge) ; Miller v. Ocean Steamship Co., 118 N. Y. 199 ; Dougherty 0. Missouri R. Co., 81 Mo. 325 ; 51 Am. Rep. 239 ; 21 Am. & Eng. B. Cas. 497 (sudden starting of car) ; Texas, &c. R. SBC. 325 a.] PRESUMPTION OF NEGLIGENCE, ETC, 1563 This presumption, however, is limited to cases where it is shown that the injury complained of resulted from the breaking of Co. V. Suggs, 62 Tex. 823 (derailment of car) ; White v. Bostuu, &r. K. Co., Hi Mass. 401 ; 30 Am. & Eag. R. Gas. 615 (passenger injured by falling of a car fix- ture); Seybolt v. New York, &c. E. Co., 95 N. Y. 562 ; 18 Am. & Eng. K. Cas. 162. According to the weight of authority in this country negligence is presumed when an injury results from the breakage or defective condition of any of the appli- ances of a railway used in the carrying of passengers, or in the method of their use. Carpue v. London, &c. By. Co., S Q. B. 717 ; Gee . Metropolitan Ry. Co., L. B. 8 Q. B. 161 ; Sawyer v. Hannibal, &c. B. Co., 37 Mo. 210 ; Galena, &o. B. Co. V. Yarwood, 15 111. 168 ; Bowen v. N. Y. &c. B. Co., 18 N. Y. 108; Curtis v. Eochester, &c. E. Co., 18 N. Y. 131 ; Ware v. Gay, 11 Pick. (Mass.) 106 ; Young V. Einney, 28 Ga. Ill ; McLean V. Burbank, 11 Minn. 277 ; Baltimore, &c. E. Co. V. Whitman, 29 Gratt. (Va.) 431 ; Baltimore, &o. E. Co. v. Noell, 32 Gratt. (Va.) 391; Peoria, &c. E. Co. v. Eeynolds, 88 111. 418 ; Stevens v. Euro- pean, &c. B. Co., 66 Me. 71 ; Flannery V. Waterford & Limerick Ey. Co., 11 Ir. Bep. O. L. 30 ; Bird ii. Great Northern Ey. Co., 1 H. & N. 812 ; George v. St. Louis, &o. E. Co., 31 Ark. 613 ; Den- ver, &c. E. Co. i>. Woodward, 1 Col. 1. The breaking of a paddle-wheel on a steamer raises a presumption of negligence. Yerkes v. Keokuk, &c. Packet Co., 7 Mo. App. 265. So where a person was injured while leaving a steamer by the falling of a stage plank. Eagle Packet Co. v. De- fries, 94 111. 598. So an injury resulting from the washing away of a railway em- bankment by a flood, — Philadelphia, &c. B. Co. ». Anderson, 91 Penn. St. 351, 39 Am. Eep. 787 ; Brehm v. Gt. Western E. Co., 34 Barb. (N. Y.) 256 ; Gt. West- ern Ry. Co. V. Braid, 1 Moo. P. 0. 101, — or where an injury results from a car being thrown from the track, — Pittsburgh, &c. B. Co. V. William, 74 Ind. 462 ; Carpue i>. London, &c. By. Co., 5 Q. B. 749; Zemp V. Wilmington, &o. E. Co., 9 Eich. (S, C.J L. 84 ; Sullivan v. Phila., &c. E. Co., 30 Penn. St. 234; Tejcas, &c. E. Co. V. Suggs, 62 Tex. 323 ; 37 Am. & Eng. E. Cas. 475, — from a collision of trains, ^- New Orleans, &c. B. Co. v. AUbritton; 38 Miss. 242 ; Skinner v. London, &c. By. Co., 6 Exch. 786, — where the train breaks down, — Toledo, &c. B. Co. v. Baggs, 85 111. 80; Meier v. Penn. B. Co., 64 Penn. St. 225, — and generally, where the injury results from the defective condition of its roadway, bridges, rails, cars, or other appliances of the business, or its mode of operating them. Pittsburgh, &c. E. Co. V. Thompson, 56 111. 138 ; Edgerton v. New York, &c. E. Co., 35 Barb. (N. Y.) 389 ; Dawson v. Manches- ter, &c. Ey. Co., 7 H. & N. 1037; Caldwell V. N. J. Steamboat Co., 47 N. Y. 282 ; Eailroad Co. v. Pollard, 22 Wall. (U. S.) 341 ; Ware v. Gay, 11 Pick. (Mass.) 106 ; Holbrook v. Utica, &c. E. Co., 12 N. Y. 236 ; Roberts ». Johnson, 58 N. Y. 613 ; Simpson v. London, &c. Omnibus Co., L. R. 8 C. P. 390 ; Fairchild v. California Stage Co., 13 Cal. 599 ; Stokes v. Salton- stall, 13 Pet. (U. S.) 181. Negligence may be inferred from the fact of the ex- plosion of a boiler, whether there be any relation between the owner of the boiler and the party injured or. not. The pre- sumption originates from the nature of the act, and not from the nature of the rela.^ tions between the parties. Where an ac- cident happens, as in the bursting of a boiler, in the absence of explanatory cir- cumstances, negligence will be presumed, and the burden is cast upon the owner to disprove it. Rose v. Stephens & Condit Transp. Co., 20 Blatch. (U. S. ) 411; 11 Fed. Bep. 438 ; The Beliance, 4 Woods (U. S.), 420; 2 Fed. Eep. 249; Posey v. Scoville, 10 Fed. Bep. 140 ; Robinson v. N. Y. Central E. Co., 20 Blatch. (U. S.) 338. No presumption of negligence ordi- narily arises from the mere fact that an accident has occurred. But such a pre- sumption arises whenever it appears that an accident has resulted from a defect in the road or any part of the apparatus em- ployed in operating it, — Curtis v. Eoches- ter & Syracuse B. Co., 18 N. Y. 534, — or from circumstances attending the in- 1564 NEGLIGENCE. [chap. XVIII. machinery, from a collision or the derailment of cars, or from some defect in the appliances or means of transportation, or in the conduct jury J and whenever such a, state o( things ejcists, the onus is upon the company to show that the injury did not result from any negligence on its part. Brehm v. Great Western R. Co., 34 Barb. (N. Y.) 256. When the presumption of negligence has been once established against a carrier of passengers, in an action for damages re- sulting from an accident, it can only be rebutted by proving that the accident re- sulted from circumstances against which human prudence ' and foresight could not guard. Bowen v. New York Central R. Co., 18 N. Y. 408. But the presumption of negligence only applies when the wrdngful act was that of the carrier himselfy or of some one for whose conduct he is responsible, and does not exist where it was the act of a stranger. The case of Curtis e. Boches- ter, &o. R. Co., 18 N. Y. 534, is a lead- ing one in this, connection. The court, speaking through Gkovek, J., said: "The plaintiff took passage in the defendants' cars at Geneva for Auburn. As the train was passing Waterloo, it ran off the track, and the plaintiff was injured. The court, among other things,' charged the jury that the fact of this accident oc- curring was of itself presumptive evidence of negligence on the part of the defend- ants, and it lay with them to explain it and to prove that they were not negligent, in order to discharge them from liability to the plaintiff ; to which the defendants excepted. The plaintiff was bound to prove her cause of action. That was that she had received an injury caused by the negligence of the defendants. The negli- gence of the defendants must be proved by the plaintiff, as well as the reception of the injury. It was not enough for her to prove that while a passenger upon the defendants' cars she was injured. In this case, proof was given that the cars ran off the track, and that this occasioned the in- jury. It was in reference to this evidence that the judge charged the jury that the fact of this accident occurring was pre- sumptive evidence of negligence on the part of the defendants. The question is, whether the plaintiff was bound to go further, and show the particular cause of the cars being thrown from the track, or whether it was for the defendants to show that it was accidental, and without neglect upon their part. The question may be determined upon principles applicable to all modes of canning passengers. It is the duty of all engaged in this business, in any mode, to use care to secure the safety Of the passenger, proportioned to the danger incident to the mode of convey- ance. In case this care is applied, as a general result the safety of the passenger will be secured, so far as that safety de- pends upon the state or condition of any of the means provided by the carrier and used in the business ; if there is no imper- fection in any of these, and suitable cau- tion is employed by those engaged in their application, everything dependent thereon will accomplish the end in view. This is as certain as the laws of mechanics. When, therefore, an injury is received from a derangement of anything employed by the carrier, the presumption necessarily arises that there existed somewhere an im- perfection in the machinery employed, or negligence in its application. It is the duty of the carrier to provide perfect ma- chiueiy, and if he has failed in this, it de- volves upon him to show the excuse, if any. This is the rule applicable to all cases where a party seeks exoneration from a duty imposed upon him by law or incur- red by contract. The plaintiff has estab- lished his cause of action when he has shown a failure to perform the duty from which he has sustained an injury. It is for the defendant, then, to show the facts relieving him from responsibility in the particular case. This imposes no hardship upon the defendant in this class of cases. The whole management is exclusively under his control. He has ample means to show the true cause of the difficulty. The plaintiff knows nothing about it. He takes passage with the carrier, who, in- stead of conveying him safely, inflicts an injury upon him by the failure of some part of the machinery employed by him. In many cases, it would be impossible for the plaintiff to ascertain the particular de- SEC. 325 a.] PEEStTMPTION QF NEGLIGENCE, ETC. 1565 of the business. This cannot apply to a case where a passenger while sitting at a car-window is injured by being struck on the arm feet, and I thiak no sueh obligation is im- posed upon him by the rules of evidence. The authorities are uniform in favor of the rule held by the judge. Stokes v. Salton- stall, 13 Pet. (D. S.) 181 ; Carpue v. Lon- don, &o. Ry. Co., 5 Q. B. 747 ; Holbrook V. Utica, &c. K. Co., 16 Barb. (N. Y.) 113. The defendants' counsel cites the case of Holbrook v. Utica, &o. E. Co.j 12 N. Y. 236, in opposition to the rule. I understand that case as substantially sustaining the inle as laid down by the judge in his charge in this case. Ruggles, J., says that if the witness who swears to the injury testifies also that it was caused by a crush in a collision with another train of cars belonging to the same car- riers, the presumption of negligence im- mediately , arises. Just so when it is proved that the injury arose from any de- rangement, crush, or displacement of the track or cars." In the same ease, Sblden, J., said ; " Whenever it appears that the accident was caused by any deficiency in the road itself, the cars, or a portion of the apparatus belonging to the company and used in connection with its business, a presumption of negligence on the part of those whose duty it was to see that every- thing was in order immediately arises, it being extremely unlikely that any defect should exist of so hidden a nature that no degree of skill or care could have foreseen or discovered it. If it be said that upon the same principle upon which negligence is presumed in such a case it should be presumed in every case, on account of the high degree of improbability that a seri- ous accident of any kind should occur without some degree of negligence, the answer is plain ; and to present this dis- tinction is the object of most that has been said. There may be a presumption of neg- ligence in every case ; but where nothing is known in regard to the cause of the accident, the negligence may as well have been that of some one residing in the vicinity of the road, or of some stranger, of whom numbers come in contact with it every day, as of any of the employes of the company ; while if it appears that the mischief has resulted from a defeat in some part of the apparatus of the com- pany, the negligence, if any, must have been that of some one for whose acts and omissions the company is liable, — it being well settled that the carrier is responsible for the negligence or want of skill of eveiy one who has been concerned in the manu- facture of any portion of its apparatus. Hegeman v. Western R. Co., 13 N. Y. 9 ; Ware v. Gay, 11 Pick. (Mass.) 106 ; Ingalls V. Bills, 9 Met. (Mass.) 1. The cases in which it has been said that a pre- sumption of negligence arises from the mere proof that an accident has occurred will appear, if examined, net to conflict materially with these principles; and some of them are, I think, illustrative of the distinction just suggested. The leading cases on the subject are those of Christie V. Griggs, 2 Camp. 79 ; Stokes u. Salton- stall, 13 Pet. (U. S.) 192 ; Carpue v. Lon- don, &c. Ey. Co., 5 Q. B. 747 ; Laing V. Colder, 8 Penn. St. 479, In Christie V. Griggs, where Sir James Mansfield is supposed to have laid down the proposition in question, it was proved that the injury was caused by the breaking of the axle-tree of the coach, upon the top of which the plaintiff was seated ; and it was in view of this proof that the Chief Justice made the remark that 'the plaintiff had made a prima fade case by proving his going on the coach, the accident, and the damage he had suffered.' There is no doubt that in such a case negligence should be pre- sumed, for the reasons which have been given. In the case of Stokes v. Salton- stall, wnte, which was also an action against the proprietors of a line of stage- coaches, the court instructed the jury that the ' facts that the carriage was upset and the plaintiff's wife injured were prima facie evidence that there was carelessness, or negligence, or want of skill, on the part of the driver; and threw upon the defend- ant the burden of proving that the acci- dent was not occasioned by the driver's fault.' Taken abstractly, this instruction, which was sustained by the court, might seem to be in conflict with the principles here contended for ; but if understood in reference to the proof, it is otherwise. 1566 NEGLIGENCE. [chap. XVIII, by some hard substance just as another train is passing,^ or to similar injuries which are not the result of a negligent or improper construc- tion, maintenance, or operation of the road." The true rule is that announced in a case before the Kentucky Supreme Court, where it is said : " Prima facie, where a passenger being carried on a train is injured by an accident occurring to the train, the legal presump- tion arises that the accident and consequent injury was caused by the negligence of the carriers ; and the onus of disproving the pre- sumption of' negligence by showing that the injury arOse from an accident which the utmost care, diligence, and skill could not prevent, is on them ; or that, in actions for ordinary neglect, although negli- The plaintiff has proved not only the accident and the injury, but that the pas- sengers had remarked that the driver appeared intoxicated, and so told the agent of the proprietors ; that the road was perfectly level, and not dangerous or difficult ; and that the reckless conduct of the driver had called out repeated remon- strances from the passengers, which were wholly unattended to. Here was ample proof of negligence, and the judge must have had these circumstances in view when he made his remarks to the jury. The happening of the accident, under the circumstances proved, was undoubtedly prima facie evidence of negligence. The other two cases were actions for injuries upon railroads^ In that of Carpue v. Lon- don, &c. By. Co., 5 Q. B. 747, it appeared that the position of the rails had been some- what deranged at the spot where the in- juiy took place ; and the Chief Justice charged the jury that it having been shown that the exclusive management both of the machinery and the railway was in the hands of the defendants, it was presum- able that the accident arose from their want of care, unless they gave some ex- planation of the cause by which it was produced. This is in perfect accordance with the principles which have been here ad- vanced. Laing v. Colder, 8 Penn. St. 479, is perhaps the strongest case in support of the doctrine against which we contend. When that case was heard in banco, Bell, J. , said ; ' the mere happening of an injurious accident raises, prima facie, a presumption of neglect, and throws upon the carrier the onus of showing it did not exist.' But the charge of the judge at the circuit upon which the question arose was not so broad. He instructed the jury that ' in the present case the presumption was there had been negligence,' — a charge fully justified by the prqof, which was that the accident occurred while the car was cross- ing a bridge, which was so narrow that the plaintiff's hand, lying outside the car- window, was caught by the bridge and his arm broken. It was palpable negligence on the part of the company so to construct the bridge. In no instance that I am aware of has it been said by any judge that negligence, on the part of the carrier, was to be presumed from the mere happening of an accident, except where the facts proved in the particular case fully war- ranted the presumption upon the principles here insisted upon." 1 Pennsylvania R, Co. v. McKinney, 124 Penn. St. 462 ; 87 Am. & Eng. R. Cas. 153. 2 In the case of Stimson v. Milwaukee,' &c. R. Co., 75 Wis. 881 ; 44 Am. & Eng. R. Cas. 881, the plaintiff, while walking down the aisle of the car, carrying a satchel in her hand and looking for a seat, stumbled over two satchels which had been left in the aisle and was injured. None of the company's employes were in the car at the time ; the oar was well lighted and one could easily see the obstructions by look- ing. It was held that there was no evi- dence of negligence on the part of the company ; the presence of the satchels in the aisle could not, under the circum- stances, create any presumption of negli- gence. See also for a similar case,' Sherman V. Delaware, &o. R. Co., 106 N. Y. 542. SEC. 325 a. J PRESUMPTION OF NEGLIGENCE, ETC. 1567 gent themselves, the injury to the passenger would not have occurred but for his own negligence." ^ The burden of proof properly and naturally falls upon the plaintiff in actions for negligent injury. And in the absence of any presumption of defendant's negligence the plaintiff must establish by fair prepon- derance of the evidence the negligence of the defendant as the proxi- mate cause of the injury.^ Mr. Justice Strong has stated the rule in this connection very clearly : " In actions for negligence the burden of proof is upon the plaintiff; the law will not presume it for him. And in cases like this, where all the evidence must be considered in order to ascertain whether negligence existed, it is a mistake to sup- pose that a court may be required to single out some of the facts proved, and declare that they remove the burden of proof from the shoulders of the plaintiff and cast it on the defendant. That can only be done where a court can determine what constitutes guilt. It is the province of the jury to balance the probabilities and determine where the preponderance lies." ^ But when evidence has been intro- duced which is sufficient as a matter of law to hold defendant liable, or to create a presumption of negligence, the burden of proof shifts to the defendant.* Proof of defendant's negligence as a proximate cause of the injury is sufficient to entitle plaintiff to a recovery, except in those jurisdictions where it is held that he must also assume the burden of negativing contributory negligence on his own part.^ Even in such jurisdictions however, it is sufficient, if, having 1 Bennett, J., in Louisville, &o. E. Co. by the fact that defendant's wrongful act V. Ritter, 8,5 Ky. 368 ; 28 Am. & Eng. K. was a crime. Welch v. Juggenhelmer, 56 Gas. 168, citing Jamisoa 11. San Jos^, &c. Iowa, 11; 41 Am. Eep. 77 {overruling, R. Co., 55 Cal. 697 ; New Orleans, &c. R. Barton v. Thompson, 46 Iowa, 30); 26 Am. Co. II. Albritton, 38 Miss. 274 ; Baltimore, Rep. 131 ; Kane v. Hibemia Ins. Co., 39 &e. R. Co. V. Worthington, 21 Md. 284. N. J. L. 697 ; 23 Am. Rep. 239 ; Blaeser * Brown v. Congress, &c. E. Co., 49 v. Milwaukee Ins. Co., 37 Wis. 31 ; 19 Mich. 153 ; 8 Am. & Eng. R. Cas. 383 ; Am. Rep. 747 ; 16 Am. & Eng. Ency. Law, Mymning v. Detroit, &o. R. Co., 67 Mich. p. 454 and numerous cases cited. 67 ! Quaife v. Chicago, &c. R. Co., 48 Wis. » McCuUy v. Clarke, 40 Penn. St. 407, 513 ; Seybolt v. New York, &o. R. Co., 408 ; 80 Am. Dec. 584. 95 N. Y. 562 ; 47 Am. Rep. 75 ; 18 Am. * Pennsylvania Canal Co. v. Bentley, & Eug. R. Cas. 162 ; Crandall v. Goodrich 66 Penn. St. 30 ; Missouri Pao. R. Co. v. Transp. Co., 16 Fed. Bep. 75 ; McCaig v. Foreman, 73 Tex. 311 ; 2Thomp. onNeg., Erie R. Co., 8 Hun (N. Y.), 599 ; MeCiiUy p. 1235, § 8. V. Clarke, 40 Penn. St. 399 ; 80 Am. Dec. ' The better rule is that there is no 584. The rule in regard to civil oases is presumption of contributory negligence on that plaintiff is bound to prove his case the part of the plaintiff; it is a matter of only by a preponderance of the evidence ; defence which need not be negatived in he is not bound to prove it beyond a rea- the declaration or complaint, but which sonable doubt, and this rale is not changed must be alleged and proved as a matter of 1568 NEGLIGENCE. [chap. XVITI. alleged in his declaration or complaint that he was without fault himself, he is able to establish the negligence of the defendant by defence. Thompson v. North Mo. E.. Co., 61 Mo. 190 ; Hough v. Kailroad Co., 100 U. S. 213 ; Railroad Co. v. Gladinon, 15 Wall. (U. S.) 401 ; Indianipolia, &o. K. Co. V. Horst, 93 U. S. 291 ; Mobile, &c. R. Co. V. Crenshaw, 65 Ala. 569 ; 8 Am. & Eng. R. Cas. 541 ; Thompson v. Duncan, 76 Ala. 334 ; Texas, &e. R. Co. v. Orr, 46 Ark. 182, 423 ; MoDougall v. Central R. Co., 63 Cal. 431 ; 12 Am. & Eng. R. Cas. 143 ; May v. Hanson, 5 Cal. 360 ; 63 Am. Deo. 136 ; Sanderson v. Frazier, 8 Col. 79 ; 54 Am. Rep. 544 ; St. Louis, &c. R. Co. V. Weaver, 36 Kan. 412 ; 28 Am. & Eng. R. Cas. 841 ; Louisville, &c. R. Co, V. Goetz, 79 Ky. 160 ; 42 Am. Rep. 227 ; 14 Am'. & Eng. R. Cas. 627 ; Thompson w. Central R. Co., 54 Ga. 509 ; Bacon v. Baltimore, &c. R. Co., 68 Md. 482; 15 Am. & Eng. R. Cas. 409 ; Hocum v. Wetherick, 22 Minn. 152 ; Stepp v. Chicago, &o, R. Co., 86 Mo. 225; Warmington i>. Atchison, &o. R. Co., 46 Mo. App. 159 ; Buesching v. St. Louis Gas Co., 73 Mo. 219 ; 39 Am. Rep. 503 ; Baltimore, &o. R. Go. v. Whitacre, 85 Ohio St. 627 ; Cleveland, &o. R. Co. v. Crawford, 24 Ohio St. 631 ; 15 Am. Rep. 633 ; Cleveland, &o. R. Co. v. Rowan, 66 Penn. St. 393 (love of life and the in- stinct of preservation being the highest motive for care, they will stand for proof of it till the contrary appear) ; Cassidy v. Angell, 12 R. I. 447 ; 34 Am. Rep. 690 ; Carter v. Columbia, &a. R. Co., 19 S. C. 20 ; 45 Am. Rep. 754 j 16 Am. & Eng. R, Cas. 414; Dallas, &c. R. Co. v. Spicker, 61 Tex. 427 ; 48 Am. Rep. 297 ; 21 Am. & Eng, R. Cas. 160 ; Prideaux v. Mineral Point, 43 Wis. 513 ; 28 Am. Rep. 568 ; Eowleri). Baltimore, &c. R. Co., 18 W. Va. 579 ; 8 Am. & Eng. R. Cas. 480 ; Bridge v. Grand Junction Ry. Co", 8 M. & W. 244 ; Martin v. Great Northern By. Co., 16 C. B. 179. Sea 4 Am. & Eng. Eiioy. Law, pp. 91 et seq, where this ques- tion is discussed with great clearness and a very large number of authorities collected. There is respectable authority, however, holding that the hurden rests upon the plaintiff to prove himself free from contrib- utory negligence. Missouri Furnace Co. V. Abend, 107 111. 44 ; 47 Am. Rep. 425 ; Cincinnati, &c. R. Co. v. Butler, 103 Ind. 81 ; 23 Am. & Eng. R. Cas. 262 ; Patter- son V. Burlington, &c. R. Co., 88 Iowa, 279 ; Nelson v. Chicago, &c. R. Co., 38 Iowa, 564 ; Hinckley v. Cape Cod E. Co., 120 Mass. 267 ; State u. Maine Central R. Co., 76 Me. 367 ; 49 Am. Rep. 622 ; Mitchell I). Chicago, &c. R. Co., 61 Mich. 236 ; 47 Am. Rep. 666 ; 12 Am. & Eng. R. Cas. 163; Walsh v. Oregon R., &c. Co., 10 Oreg. 250 ; Buttons. Frink, 51 Conn. 342; 4 Am. & Eng. Ency. Law, p. 90. See also Hart V. Hudson River Bridge Co., 80 N. Y. 622. And it is said that the complaint must expressly allege that the injury oc- curred without the fault or negligence of the plaintiff. Maxfield v. Cincinnati, &c. R. Co., 41 Ind. 269 ; Jeffersonville E. Co. II. Hendricks, 20 Ind. 228. The fact that the complaint showed that plaintiffs intes- tate knew of a dangerous place in the high- way, into which he fell and was killed, is not sufficient to overcome, or make nuga- tory, the explicit averment that he exer- cised reasonable care and prudence. But in such case, in order to entitle the plain- tiff to recover, he must offer evidence to show that deceased was free from contribu- tory negligence. Toledo, &c. R. Co. i>. Brannagan, 76 Ind. 490. The rule is thus laid down in the case of Tolman v. Syiw- cuse, &c. R. Co., 98 N. Y. 198 : In an action for negligence causing death, the burden of establishing affirmatively free- dom from contributory negligence is upon the plaintiff, and while although there were no eye-witnesses of the accident, and al- though its precise cause and manner of occurrence are unknown, absence of con- tributory negligence may be established, sufficiently to make it a question of fact for the jury, by proof of such facts and surrounding circumstances as reasonably indicate or tend to establish that the acci- dent might have occurred without negli- gence on the part of the deceased ; yet if the facts and circumstances, coupled with the occurrence of the accident, do not indi- cate or tend to establish the existence of some cause or occasion therefor which is consistent with proper care and pmdence, SEC. 325 6.] EVIDENCE. 1569 evidence which at the same time shows no default on his own part, and prima facie proves him to have been in the exercise of due' care.^ The true doctrine is, as already stated, that there is no pre- sumption of negligence against either party, and the burden of proof should properly rest upon the party alleging the want of care. The plaintiff establishes his case upon showing the want of care on the part of the defendant with nothing in the facts proved to show neg- ligence on his own part or create a presumption against him, and if there was any contributory negligence it rests on the defendant to prove it.2 The elements which plaintiff must establish in every case are : 1. A want of ordinary care on the part of defendant 2. A duty owing to himself from defendant. 3. Damage to himself. 4. That the defendant's want of ordinary care in the discharge of this duty was the proximate cause of the damage complained of ^ A failure to establish any one of these elements, from the very definition of negligence, entitles the defendant to a verdict. Sec. 325 6. Evidence. — In the many cases involving actions for negligent injury, innumerable questions as to the propriety and admissibility of evidence have been raised and decided, even a small the inference of negligence is the only one Am. Dec. 375 ; Beach on Contrih. Neg., to be drawn, and defendant is entitled to a 446 ; Hutchinson on Carriers (2d ed. ), non-suit. See also Eohinson ». N. Y. §§ 802, 803. See also Carter v. Columbia, Central E. Co., 65 Barb. 146 ; Greany v. &c. E. Co., 19 S. C. 20 ; Pittsburgh, &c. Long Island E. Co., 101 N. Y. 419 ; Jones H. Co. v. Noel, 77 Ind. 110 ; Central R. V. N. Y. Central E. Co., 10 Abb. N. Cas. Co. v. Brinson, 64 Ga. 475 j Eandall v. (N. Y.) 200. Northwestern Telegraph Co., 54 Wis. 140 ; 1 Wharton on Keg., §§ 423, 426 ; Cleve- Paducah, &c. E. Co. v. Hoehl, 1^ Bnsh land, &c. E. Co. v. Crawford, 24 Ohio St. (Ky.), 41 ; Kentucky .Central E. Co. v. 631 ; 15 Am. Eep. 633 ; Adams v. Young, Thomas, 79 Ky. 160 ; Eobinson v. West- 44 Ohio St. 80 ; 68 Am. Eep. 789 ; Chi- em Pacific R. Co., 48 Cal. 409 ; Mac- cago, &c. E. Co. V. Carey, 115 111. 115 ; Dougal v. Central R. Co., 1£ Am. & Eng. Pennsylvania E. Co. v. Goodman, 62 Penn. R. Cas. (Cal. ) 143 ; Chadbourne v. Dela- St. 329 ; Pennsylvania R. Co. v. Weber, ware E. Co., 6 Daly (N. Y. C. P.), 215 j 76 Penn. St. 157 ; 18 Am. Rep. 407 ; Penn. R. Co. w. Weber, 76 Penn. St. 157 ; Cooley on Torts, p. 673. If the facts are Savannah, &c. E. Co. v. Shearer, 58 Ala. undisputed, and fail to show that the plain- 672 ; Kansas Pacific R. Co. v. Pointer, 14 tiff was in the exercise of due and reason- Kan. 37. able care at the time of receiving the ' Delaware, &o. R. Co. ii. Napheys, 90 injuries, the court should instruct the jury Penn. St. 141 ; 1 Am. & Eng. R. Cas. that he cannot recover. Gavett v. Man- 52; Pennsylvania E. Co. v. Hensil, 70 Chester, &c. R. Co., 6 Gray (Mass.), 501. Ind. 569 ; 86 Am. Rep. 188 ; Joy v. Win- 2 Wharton on Nes., §§ 423, 426 ; Burns nisimet Co., 114 Mass. 63 ; Philadelfljua, V. Chicago, &o. R. Co., 69 Iowa, 450 ; 58 &c. E. Co. v. Boyer, 97 Penn. St. 91 ; 2 Am. Eep. 227 ; Pennsylvania R. Co. v. Am. & Eng. E, Cas. 172 ; Crandall v. Goodman, 62 Penn. St. 829 | Johnson v. Goodrich Transp. Co., 18 Fed. Rep. 75. Hudson River R. Co., 20 N. Y. 85 ; 75 1570 NEGLIGENCE. [chap. XVIII. part of which it would be impossible to review.^ Such questions belong ■ rather to the domain of the law of evidence than to that of railroad law, and no effort is therefore made to discuss them here. A single question of some importance may, however, be noticed, — that rela- tive to the compulsory physical examination of the injured person. Where the plaintiff, in an action for injuries sustained through the negligence of the railroad company, alleges as an element of damage that he has suffered internal injuries, and there is reason- able ground for doubt as to the correctness of his statements and of the diagnosis of his private physician, it seems to be the general doctrine that the court may, in its discretion, direct an examination of plaintiff's person by disinterested and competent physicians, and compel plaintiff to submit.^ The propriety and justice of such a I See 16 Am. & Eng. Law, Article "Negligence," where some general rules are stated. Ordinarily in an action for an in- jury to a passenger the evidence should be confined to the condition of the road at the time 'of the accident. See Hipley v. Kansas City, &o. R. Co., 88 Mo. 348 ; 27 Am. & Eng. R. Cas. 287 ; Sideknm v. Wabaah, &o. R. Co., 93 Mo. 400 ; 30 Am. Eng. R. Cas. 640; Pittsburgh, &o. R. Co. V. Williams, 74 Ind. 462 ; Stewart v. Everts, 76 Wis. 35 ; 41 Am. & Eng. R. Cas. 224; Missouri Pacific R. Co. v. Mitchell, 75 Tex. 77 ; 41 Am. & Eng. R. Cas. 224. Compare Vicksburg, &c. R. Co. 1). Putnam, 118 0. S. 545 ; 27 Am. & Eng. E. Cas. 291 ; Missouri Pacific R. Co. «.* Collier, 62 Tex. 318, and in actions for negligence generally the evidence should be limited to the time when the injury occurred. Southern R. Co. v. Ken- driok, 40 Miss. 374. In an action by a passenger to recover damages for personal injuries occasioned by running off the track, evidence that the train on which the accident occurred, and of which wit- ness was conductor, had run off the track seven or eight times within a month be- fore the accident is admissible. Mobile, &o. R. Co. V, Ashcraft, 48 Ala. 15 ; 49 Ala. 805. In an action to recover dam- ages for the death of a postal agent caused by the car in which he was working being thrown from the track and demolished, evidence as to the making an inspection of cars generally and not confined to the car in question is inadmissible. Ohio, &c. R. Co. V. Yoight, 122 Ind. 288, In an action for injuries sustained in a collision, evi- dence as to the age of the car in which the plaintiff was riding is held to be inad- missible. If the cars are suitable it makes no difference whether they are old or new. Wormsdorf ». Detroit City R. Co., 75 Mioh. 472 ; 40 Am. & Eng. R. Cas. 271. The error in admitting improper evidence, clearly calculated to arouse the sympathy and excite the prejudices of the jury so as to influence their verdict, is not cured by afterwards striking it out. Gulf, &o. R. Co. V. Levy, 59 Tex. 542 ; 46 Am. Bep. 269. ^ The power of the court to direct such an examination is upheld in a very strong opinion in Alabama, &c. R. Co. v. Hill, 90 Ala. 75, where the court reviews a large number of cases, and holds that a re- fusal of the order is a reversible error. The same principle is recognized and ap- plied in Anonymous, 89 Ala. 291, 7 So. Rep. 100 ; McGuff v. State, 88 Ala. 147. Such a power is also recognized in Mis- souri. Shepard v. Missouri Pac. R. Co., 85 Mo. 629 ; 55 Am. Rep. 800 (practically overriding Loyd v. Hannibal, &c. R. Co., 53 Mo. 509) ; Sidekum v. Wabash, &c. R. Co., 93 Mo. 400 ; Owens v. Kansas City, &o. R. Co., 95 Mo. 165. So also in Arkansas. Sibley ■«._ Smith, 46 Ark. 275 ; 56 Am. Rep. 584! And in other jurisdictions. White v. Milwaukee City R. Co,, 61 Wis. 536 ; 50 Am. Rep. 154 ; SEC. 325 6.] EVIDENCE. 1571 rule does not appear to admit of much question ; it is always easy for a plaintiff to allege serious internal injuries (a favorite expe- Atchison, &c. E. Co. v. Thul, 29 Kan. 466; 44 Am. Rep. 659 (plaintiff com- pelled to allow expert to examine his eyes) ; Miami, &c. R. Co. v. Bailey, 37 Ohio St. 104 (on plaintiffs refusal to submit the court may dismiss his action) ; Hess v. Lake Shore, &c. R. Co., 7 Penn. Co. Ct. Kep. 765 ; Richmond, &c. R. Co. v. Childress, 82 Ga. 719 ; 9 S. E. Kep. 602 ; Schroeder v. Chicago, &c. R. Co., 47 Iowa, 375. The case of Stuart v. Havens, 17 Neh. 211, does not deny the existence of such a power in the court. It merely holds that the order should not he granted where it is asked for during the trial by de- fendant, and defendant's physicians are requested to he named as examiners. If the examination is desired, the physicians to conduct it, say the court, "should he agreed upon hy the parties, or appointed by the court, and the examination made before the trial begins, although the court may permit it to be made during the pro- gress of the trial. " See also Dogge v. State, 21 Neb. 272. In the case of Roberts v. Ogdensburgh, &c. R. Co., 29 Hun (N. Y.), 154, the motion for an examination was denied on similar grounds. Defendant's motion was that plaintiff be required to submit her person to an examination by three physicians to be chosen by the com- pany. It was held that the court had no power to grant such a motion. And it must be conceded that the New York lower courts have usually denied the power of the court to compel either party to submit to a physical examination, ex- cept in peculiar cases — as where, in an action for divorce, impotency is one of the grounds on which the divorce is sought. Neuman v. Third Ave. R. Co., 50 N. Y. Super. Ct. 412 ; McSwyny v. Broadway, &c. R. Co., 7 N. Y. Supp. 456 ; Archer V. Sixth Ave. R. Co., 52 N. Y. Super. Ct. 378. Oontra, Walsh v. Sayre, 52 How. Pr. (N. Y.) 334; Shaw v. Van Rensse- laer, 60 How. Pr. (N. Y.) 143. In a case before the Supreme Court of the United States the question was squarely pre- sented, and it was held that a court had no such power to compel plaintiff to sub- mit his person to an examination by ap- pointed physicians. The court, speaking through Mr. Justice Gkay, said- "No right is held more sacred or is more care- fully guarded by the common law, than the right of every individual to the possession and control of his own person free from all restraint or interference of others, unless by clear and unquestionable authority of law. . . . The inviolability of the person is as much invaded by a compulsory strip- ping and exposure as by a blow. To com- pel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful author- ity, is an indignity, an assault, and a tres- pass ; and no order or process commanding such exposure or submission was ever known to the common law in the admin- istration of justice between individuals, except in a very small number of cases based upon special reasons, and upon an- cient practice coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country." This view has been adopted by the Indiana court. Pennsyl- vania Co. V. Newmeyer, 129 Ind. 411. See also Terre Haute, &c. R. Co. v. Bmnker, 128 Ind. 553. In the case of Parker v. Euslow, 102 111. 272, the court in refusing to reverse the case on the ground that the trial court refused to order a compulsory ex- amination of plaintiff's eyes, for aji injury to which the action was brought, dismissed the matter with the single remark that " the court had no power to make or en- force such an order." But in subsequent cases, while the examination was not ordered, the court very clearly indicated that in a proper case such an order could be granted ; that the power to make such an order resides in the trial court. See St. liouis Bridge Co. v. Mills, 138 111. 471 ; Galesburgh, City of, v. Benedict, 22 111. App. .111 ; Chicago, &c. R. Co. v. Hol- land, 122 111. 461. On the trial of an action for damages for personal injuries, the plaintiff may be permitted to show an injured member to the jury. Louisville, &c. R. Co. V. "Wood, 113 Ind. 544; Cun- ningham V. Union Pac. R. Co., 4 Utah, 206 ; 7 Pac. Rep. 795 ; Barker v. Perry, 1572 NEGLIGENCE. [chap. XVIU. dient with female plaintiffs), and corroborative medical testimony is equally easy to be obtained ; to allow the defendant no opportunity to disprove such allegations would, in many cases, be harsh and unjust, particularly since the examination cannot ordinarily, result in any injury to the plaintifif, but very materially aids in a fair investigation of the merits of the case.* The cases already cited establish the following propositions: 1. That trial courts have the power to order a physical examination by experts of the person of the plaintiff who seeks to recover in an action for physical injury .^ 2. That the defendant has no absolute right to have an order made to that end and enforced, but that the matter rests in the sound discretion of the court,^ but that the exer- 67 Iowa, 146. In another case plaintiff claimed to be paralyzed on one side, the court held that his medical attendant, though not sworn, might be permitted to thrust a pin into the plaintiff's flesh to demonstrate to the jury the loss of the sense of feeling. Osborne d. Detroit, 32 Fed. Rep. 36. In an action for injuries where it was shown by the uncontradicted testi- mony of several witnesses that plaintiff was lamed so that she limped, it is no error to refuse to compel her to walk across the court-room in the presence of the jury. Hatfield v. St. Paul, &c. E. Co., 83 Minn. 130 ; 63 Am. Bep. 14 ; 18 Am. & Eng. B. Cas. 292. But the court may refuse to allow medical works to he read to the jury. State V. Winter, 73 Iowa, 627 ; Marshal V. Brown, 60 Mich. 148. It may refuse to permit the location of the ribs to be shown by a section of the human body brought into court. Knowles v. Cromp- ton, 56 Conn. 336. The court may refuse to order the plaintiff to submit to a physi- cal examination by the defendant's medical witnesses, in private, it not appearing to be necessary, and plaintiff having already submitted to an examination by such wit- nesses in the presence of the jury. Sioux City, &o. R. Co. V. Finlayson, 16 Neb. 578 ; 49 Am. Eep. 724. See also Stuart V. Havens, 17 Neb. 211. And it is not error to refuse to compel plaintiff to sub- mit to an examination by a physician to whom he objects, though not for lack of competency or integrity. Missouri Pan. R. Co. V. Johnson, 72 Tex. 95 ; 87 Am, & Eng. R. Cas. 129. But manifestly the ob- jection must be a reasonable one else the plaintiff would thus practically acquire the power to appoint his own examiner, and the defendant's right to the examination would amount to a nullity, 1 In the case of Schroeder v. Chicago, &o. B. Co., 47 Iowa, 875, the court, by Beck, J., in upholding the view stated in the text, considered the reasons therefor at some length in a veiy able opinion. The holding was based on these grounds: 1. A party to an action has the right to demand the administration of exact justice, and, to this end, that evidence essential thereto and within the control of the court shall be produced. 2. It is within the power of the court to compel an examination, since the plaintiff is before it as a witness, and upon his refusal he may be treated as a recusant. 3. The power of the court to order a physical examination in actions for divorce, on the ground of impotency, has always been recognized. 4. In actions for personal injuries, plaintiffs are per- mitted to exhibit their wounds or injuries to the jury. See also Thompson on "Trials, §869. 2 White «. Milwaukee City R. Co., «1 Wis. 636 ; 50 Am. Eep. 154 ; Miami, &c. R. Co. t>. Bailey, 87 Ohio St. 104, and nu- merous other cases in n, 2, pp. 1571, 1572. ' Shepard v. Missouri Pac. R. Co., 85 Mo. 629 i 65 Rep. 300 ; Gulf, &c. R. Co. V. Norfleet, 78 Tex. 821. Generally, the examination should not be ordered unless the ends of justice require it. Interna^ tional, &o, B, Co. v. Underwood, 64 Tex. 468, SEC. 325 &.] EVIDENCE. 1573 cise of this discretion will be reviewed on appeal and corrected in case of abuse, though not otherwise.^ 3. That the examination should be ordered and had under the direction and control of the court, whenever it fairly appears that the ends of justice require the dis- closure, or more certain ascertainment of facts which can only be brought to light or fully elucidated by such an examination, and that the examination may be made without danger to plaintiff's life or health, and without the infliction of serious pain.^ 4 That the refusal of the motion where the circumstances present a reasonably clear case for the examination under the rule last stated, is such an abuse of the discretion lodged in the trial court as will justify a reversal of the judgment rendered in plaintiff's favor.^ It is a general rule that evidence tending to prove that after the occurrence of an injury caused by a structure alleged to be defec- tive defendant repaired the place where the injury occurred, is inad- missible. Thus, where the company, after the injury has occurred, places safeguards to prevent the occurrence of such an injury in future, evidence, of such fact is inadmissible, because the fact, if true, would not prove anything against the company, and would tend to create a prejudice on the part of the jury.* 1 Sibley v. Smith, 46 Ark. 275 ; 55 tinued negligence. . . . The fact that the Am. Rep. 584 ; Miami, &c. B, Co. v. accident has happened, and some person Bailey, 37 Ohio St. 104. has been injured, immediately puts a party * Alabama, &o. B. Co., o. Hill, 90 on a higher plane of diligence and duty, Ala. 75. from which he acts with a view of pre- ' Alabama, &o. K. Co. o. Hill, 90 Ala. venting the possibility of a similar acci- 75 ; White v. Milwaukee City E. Co., 61 dent, which should operate to commend Wis. 5.36 ; 50 Am. Eep. 154 ; Schroeder rather than to condemn the person so act- V. Chicago, &o. R. Co., 47 Iowa, 375; ing." See the rule of the text also upheld Thompson on Trials, § 859. in Heukel v. Murr, 31 Hun (N. Y.), 28 ; * In the case of Nalley v. Hartford, &c. Martin v. Towle, 59 N. H. 31 ; Dongan Co., 51 Conn. 524 ; 50 Am. Eep. 47, the v. Champlain Transp. Co., 56 N. Y. 1 ; court observed : "A person may have ex- Sewell v. Cohoes, 75 N. Y. 45; 31 Am. ercised all the care the law required, and Eep. 418 ; Hudson v. Chicago, &o. B. Co., yet in the light of his new experience, 59 Iowa, 581 ; 44 Am. Eep. 694 ; 8 Am. after an unexpected accident has occurred, & Eng. E. Cas. 464 ; Morse v. Minneapo- and as a measure of extreme caution, he Ms, &c. R. Co., 30 Minn. 465 ; 11 Am. & may adopt additional safeguards. The Eng. E. Cas. 170. Compare Weber more careful a person, the more regard he Wagon Co. ■». Kehl (111.), 29 N. E. Rep. has for the lives of others, the more likely 714; Readman v. Conway, 126 Mass. 374 ; he would be to do so, and it would seem St. Louis, &c. E. Co. v. Weaver, 35 Kan. nnjust that he could not do so without 412; 57 Am. Eep. 176; 28 Am. & Eng. E. being liable to have such acts construed as Cas. 341 ; Pennsylvania R. Co. v. Hender- an admission of prior negligence. We son, 51 Penn. St. 351. See also 16 Am. think that such a rule puts an unfair in- & Eng. Ency. Law, pp. 457, 458 and notes, terpretation upon human conduct, and where the subject of such evidence is virtually holds out an inducement for con- elaborated. 1574 NEGLIGENCE. [chap. XVIII. The weight of authority- is in favor of the proposition that the plaintiff should be allowed to show that other persons bad sustained injuries similar to his own at the same place at which his were received,^ though it seems that the fact that other persons had passed the same place in safety cannot be considered any evidence of due care on the part of the defendant at the time plaintiff was injured.* The opinion of a witness that certain acts do or do not amount to negligence is not admissible ; it is a fundamental rule of evidence " that the opinion of an ordinary witness on a question which it is for the jury to decide from the facts is incompetent.^ 1 Wooley V. Grand Street, &o. E. Co., 83 N. Y. 121; S Am. & Eng. R. Cas. 898; Phelps V. Winona, &c. U. Co., 37 Jtfinn. 486 ; 32 Am. & Eng. R. Cas. 66 ; Lewis V. Eastern B. Co., 60 N. H. 187 ; Darling V. Westmoreland, 52 N. H. 401 ; 18 Am. Uep. 65; Hill v. Portland, &c. B. Co., 66 Me. 439. Compa/re, however, Huhbard v. Concord, 85 N. H. 52 ; 69 Am. Deo. 520 ; Collins V. Dorchester, 6 Cash, (Mass.) 397. 2 ]^anoh V. Libbey, 78 Me. 821 ; 57 Am. Bep. 810 ; Hudson v. Chicago, &c. R. Co., 69 Iowa, 681 ; 44 Am. Rep, 692 ; Aldrich V. Pelham, 1 Gray (Mass.), 511 ; Temperance Hall Assoc, v. Giles, SS N. J. L. 260. * Lawson on Expert and Opinion Evi- dence, 507 ; Crane v. Northfield, 83 Vt. 124 ; Oleson v. Tolford, 37 Wis. 827 ; Stillwater Tp. Co. v. Coover, 26 Ohio St. 620. JBND OF VOL. II. KF 2289 W87 l89ii- Mefd, Horace Gay l"n;reatise on the law of rail- ^°^ roads . Date Borrower's Name