Date.. Law Library Cornell Law School the gift of Charles K. Burdick Estate Ithaca , New York April 30,.. 1941 L Cornell University Library KF 2393.Z95B72 1911 A treatise on the law of street railways ,'^*»;r. Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019373251 A TREATISE Law of Street Eailwats EMBRACING Urban, Suburban and Interurban, Surface, Sub- surface AND Elevated Eoads, Whether Operated by Animal Power, Elec- tricity, Cable or Steam Motor HENEY J. BOOTH OF THE COLUMBUS BAR SECOND EDITION— REVISED AND ENLARGED BY ISAAC C. SUTTON and PAUL H. DENNISTON OF THE PHILADELPHIA BAE PHILADELPHIA T. & J. W. JOHNSON CO. 1911 ^^^f ^^ Mntered according to Act of Congress, in the year eighteen hundred and ninety-two By henry J. BOOTH In the office of the Librarian of Congress, at Washington Copyright 191 1 By HENRY J. BOOTH PEEFACE TO SECOND EDITION. THE rapid growth and development of the business of rapid transit by means of electric railways since the first edi- tion of this book in 1892 has resulted in a large volume of litigation, in which the courts of the United States and Canada have interpreted recent legislation and applied established legal principles to many new questions as they have arisen, and have adopted, with some modifications, the rules, theretofore established elsewhere, in jurisdictions in which street railway law was in its infancy twenty years ago. The first edition cited more than twenty-six hundred cases; but since it was published many thou- sands of cases pertinent to the subject have been reported, of which we cite more than three thousand. In the preparation of this edition, it has been interesting to note that in many cases the courts have quoted with approval from the first edition, and that on a large number of points, which were not settled in 1892, the courts have adopted the views of the author. We have undertaken to cite every important reported case decided by the courts of the United States and Canada, except negligence cases which were merely cumulative. The controlling facts of all cases which interpret recent statutes or establish or apply new rules of law have been stated in the notes, while lead- ing cases have been made the basis of additions to the text. Many changes have been made in the text especially in Chapters I and VI, and the development of the law treated in each of the original fifteen chapters is fully shovtoi and brought down to date by the numerous decisions cited, from many of which we have quoted. Chapter XVI on Interurban Railways, is a new contribution to legal literature, being the first attempt to treat this new and important subject fully and systematically. The editors wish to acknowledge the valuable assistance in the preparation of this edition of Chas. E. Asnis, Esq., E. Wilbur Kriebel, Esq., and F. C. Conrey, Esq., members of the Phila- IV PBEPACE TO SECOND EDITION. delphia Bar. Mr. Asnis rendered general assistance in the editing of the book, including preparation of the notes, revision of the Negligence chapters, the digesting of cases and other detail work. Mr. Denniston, one of the editors, directed the digesting of cases, the revision of the chapters on ISTegli- gence, the preparation of the Index and Table of Cases, and the work of putting the edition through the press. The changes in the text of the other chapters and the addition of the notes- therein are largely the work of the other editor, who undertook, also, the work of preparing the chapter on Interurban Railways. We take pleasure, also, in acknowledging the invaluable as- sistance of the author of the first edition, Henry J. Booth, Esq., of the Columbus, Ohio, Bar. Mr. Booth reviewed all of the work in detail, and much of the merit this edition may possess is due not only to his suggestions and additions, but also to his assistance in reviewing both the text and the notes. ISAAC C. SUTTOI^, PAUL H. DENNISTOIS]'. Philadelphia, Pa., ITovember 1, 1911. PEEFACE TO FIRST EDITIOIST. THE American Street Eailway is unique in both its commer- cial characteristics and its legal status. It has been both a potent cause and a conspicuous result of municipal growth and prosperity. During recent years a new impetus has been given to the business of rapid transit, and the field of its operations has been greatly extended by ingenuity, skill and enterprise, and es- pecially by the successful adaptation of electricity to this branch of traific. The street railways of the United States and Canada now occupy a very important place in our commercial economy, embracing many thousand miles of track, representing an in- vestment of hundreds of millions, and carrying annually billions of passengers more rapidly, with less delay and inconvenience, and at less cost to both the carrier and its patrons than any other system of local transportation which the ingenuity of man has yet devised. ISTo other franchise involving such large interests depends for its existence upon the consent of the local authori- ties. 'No other licensed business is to the same extent subject to supervision and control by the municipality; and none other touches at so many points the legal rights of its citizens. In de- veloping the system of street railway law as it exists to-day and in establishing numerous principles now well settled which are embraced within it, the courts have been aided but little by analogies derived from the rules applicable to general traffic rail- roads. Obviously, these two systems of transportation are as unlike in the legal questions involved as in matters of location, construction, operation, business methods and the respective pur- poses which they are designed to subserve. This distinction, which is made by the courts, has been recognized by text-writers on the law of so-called steam railroads. Therefore, the many ex- cellent books which have been published on that subject have left almost untouched a field which embraces many novel and important questions. A few questions growing out of the busi- VI PEEFACE TO FIBST EDIXIOIT ness of local passenger transportation have been briefly discussed in various vrorks on cognate subjects, but no attempt has been made hitherto to prepare a general treatise on the law of street railways. The great and growing importance of this branch of the law of private corporations is illustrated by the extent to which it occupies the time and attention of the courts. The legal principles involved have been elucidated by thousands of deci- sions which are scattered through almost as many official and un- official reports. This volume has been prepared for general use by the bench and bar, the public officer and the private corpora- tion, in examining numerous questions which have not been elsewhere collectively considered. In order to present, not only the judicial determination of the questions which have arisen, but also the public policy of the different States, the text has been supplemented b|y copious notes containing extracts from opinions and synopses of general statutes. Whether or not the work has been thoroughly done can best be determined by those who may have occasion to examine the cases to which reference is made in the following pages. HENRY J. BOOTH. TABLE Of CONTENTS. CHAPTEE I. THE RIGHT TO CONSTRUCT AND OPERATE STREET RAILWAYS- ITS SOtTRCES— ITS EXTENT— HOW ACQUIRED. 5 1. Street railway defined. 2. Who may acquire the right. 3. The charter — its source and scope. 4. Charter — as a contract. 5. Application of the rule that a charter is a contract. 6. The franchise — its source and legal character — c h a r t e r, franchise and license dis- tinguished. 7. What property subject to a street railway franchise. 8. The franchise can he granted only for a public use, or upon public considerations. 9. Character of business — use for passenger and freight purposes. 10. Incorporation and organiza- tion — ^how existence and reg- ularity questioned. 11. A street railway constructed and operated without author- ity of law is a public nui- sance. 12. Remedy for unauthorized con- struction and operation. 13. Delegation of power to local authorities. 14. Power of municipal corpora- tions to grant the franchise — delegation of the power. 15. Legislative recognition and confirmation of grants. § 16. When city not subject to judi- cial control nor liable in damages for unauthorized grant, or improper construc- tion or operation. 17. The duration of grants. 18. Consent of the owners of abut- ting property. 19. The requirement as to con- sents further considered. 20. Who may sign the statutory consent. 21. Consents — the New York law. 22. Revocation of consent. 23. Variance between consent, or petition, and ordinance. 24. p,emedy for proceeding with- out consent of property own- ers. 25. Consent inures to best bidder. 26. Time and manner of receiving bids. 27. Qualifying conditions imposed by property owners. 28. Consent of public authorities and electors. 29. Conditions attached by public authorities — limitations on the power. 30. Special conditions — precedent and subsequent. 31. Acceptance of charter or fran- chise. 32. Proof of the contract between the public and the private corporation. VUl TABLE OF COIfTEKTS. CHAPTEK II. CONSTRUCTION, AMENDMENT, REVOCATION, FORFEITURE AND RENEWAL OP THE CHARTER AND FRANCHISE. ; 33. The charter — how construed. 34. Construction of the charter further considered. 35. Amendment of city charter — effect on prior municipal grant. 36. Power of the legislature to amend the company's char- ter. 37. Further limitations on the power of amendment. 38. Effect of amendment on the liability of stockholders. 39. Power of the legislature to sus- pend and revoke the charter or franchise. 40. Municipal authorities — power to amend and withdraw the franchise or impose new ob- ligations. 41. Release of the company from its obligations. § 42. Temporary suspension of com- pany's business by city pending local improve- ments. 43. Expiration, renewal and ex- tension of franchise. 44. Existence of franchis'?, how and by whom questioned. 45. Forfeiture— general principles governing it 46. Forfeiture declared by statute. 47. Failure to lay tracks within the time prescribed. 48. How time should be computed. 49. The right of forfeiture — ^how and by whom enforced. 50. Who may waive the forfeiture and how waiver may be ex- pressed. 51. Non-user — abandonment. 52. Misuser of the franchise — failure to construct and op- erate in the manner re- quired by charter. CHAPTEE III. THE CONSTRUCTION AND EQUIPMENT OF STREET RAILWAYS- RIGHTS, DUTIES AND LIABILITIES OF PUBUC AUTHOR- ITIES AND STREET RAILWAY PROPRIETORS. § 53. The scope of this chapter. 54. Street railways may be con- structed beyond the limits of municipal corporations. Power to determine the route and fix the location of the tracks. Where tracks must be con- structed. 57. Remedy for unauthorized loca- tion. 55. 56. §58. 59. 60. 61. 62. 63. How tracks must be con- structed. Remedy for defective con- struction. Remedy of company to com- pel public officials to locate route. Optional routes and additional tracks. Relocation of tracks. Extension of original lines. TABLE OF CONTENTS. IX § 64. Parallel and competing lines. 65. Construction and operation of road — how duty enforced. 66. DifEerent kinds of motive power classified. 67. What motive power may be used. 68. Silence as to motive power. I 69. Change of motive power. 70. Gauge of tracks. 71. Change of grade. 72. What kind of rails may be used. 73. Changes authorized by special act. 74. Operating road on Sunday. CHAPTER IV. RELATIVE RIGHTS AND LIABILITIES OP STREET RAILWAY PROPRIETORS AND THE OWNERS AND OCCUPANTS OF ABUTTING PROPERTY— APPROPRIATION OF PROPERTY UNDER THE POWER OF EMINENT DOMAIN. § 75. Character of public streets. 76. Rights of the public in streets. 77. Relations of the abutter to the street. 78. Use of streets for commercial railroads. 79. Use for street railways. 80. When such use is not a new servitude — general state- ment of the doctrine. 81. Ownership of fee in the street. 82. Horse railway not per se a new servitude. 83. Electric railways. 84. Cable roads a legitimate use of the street. 85. Steam as a motive power for street railways. 86. Cases holding that street rail- ways operated by steam are not a legitimate use of the street. 87. Cases holding that street rail- ways operated by steam are a legitimate use of the street. 88. Under-ground railways. 89. Elevated railroads. § 90. Railroads of a dual character. 91. Damages to abutter — the gen- eral doctrine. 92. Change of grade — cuts and fills. 93. Change of gauge. 94. Location of track on or near side of street. 95. Turn-outs and side-tracks. 96. Multiplicity of tracks and width of streets as affect- ing the rights of abutting owners. 97. Damages caused by improper construction or operation. 98. Use of snow plows. 99. Remedies of abutting owner. 100. Injunction. 101. Joinder of parties plaintiff. 102. Remedy by action at law. 103. Right of eminent domain — when and where it may be exercised. 104. Public use a question of law. 105. Conditions precedent. 106. Appropriation proceedings and practice. 107. Measure of damages. TABLE OF CONTENTS. CHAPTEK V. JOINT USE OF STREETS, TRACKS, APPLIANCES AND MOTIVE POWER. §108 Monopoly in the use of streets not favored — exclu- sive grants unauthorized. 109. Qualifications of the general rule. 110. Right of one company to use the track of another— grade crossings. 111. Joint use involving change in construction of tracks and the use of a new motive power. 112. Coach companies using rail- way tracks. 113. Right to prevent unauthor- ized use of tracks. 114. Right to compensation for joint use. § 115. How compensation a s c e r- tained and determined. 116. Measure of compensation. 117. Appropriation of right to joint use. 118. Appropriation of right to ex- clusive use. 119. Joint use of motive power. 120. Appropriation of the joint use of power. 121. Joint use of poles and other fixtures. 122. Priority in time gives prior- ity of right. 123. Simultaneous grants. 124. Transfer of grant for joint use. 125. Changes in ectuipment and trafllc. CHAPTER VI. ELECTRIC STREET RAILWAYS. 126. Introductory. 127. Right to use over-head wires. 128. Telegraph and telephone lines. 129. What is included in the grant to use electricity. § 131. Regulations requiring wires to be placed under ground. 132. Danger to human life from electric current. 133. Danger to animal life. 134. Damages caused by fire. 130. Erecting poles in the road- 135. Interference with telephones. way. ___J.36-151. (See notes to sec. 135.) CHAPTER VII. ELEVATED RAILROADS. § 152. Introductory. 153. New York elevated system — constitutional and statutory provisions. 154. Appointment of commission- ers by mayor or county su- pervisors. § 155. Duties of mayor's commis- sioners. 156. Consent of property owners and local authorities. 157. Appointment of supreme court commissioners. TABLE OF CONTENTS. XI § 158. Hearing before supreme court commissioners. 159. Confirmation of report of su- preme court commission- ers. 160. Plans for construction. 161. Location of routes and build- ings. 162. Character of the franchise obtained. 163. Power of eminent domain. 164. Scope of the rapid transit act. 165. What property may be taken. 166. Pleading and practice in con- demnation proceedings. 167. Parties to proceedings. 168. One proceeding covering pri- vate and public rights. 169. Hearing of petition — what must be shown. 170. Inability to purchase. 171. Proceedings commenced after occupation. 172. Appropriating property for illegal purposes. 173. Proceedings and practice be- fore the commissioners of appraisal. 174. Suitableness of property for particular purpose. 175. Commissioners acting on their own knowledge. 176. Benefits considered in pro- ceedings to appropriate. 177. Measure of compensation and damages. 178. Stay of proceedings of com- missioners. 179. Second award. 180. Confirmation of the award. 181. Appeal from order confirm- ing report. 182. Appeal from second ap- praisal. 183. Elevated cable roads. 184. Forfeiture and abandonment. 185. Elevated railroads not a legit- imate use of the street. § 186. Damages to non-abutting property. 187. Ownership of the fee in the street. 188. Additional tracks an addi- tional burden. 189. Remedies of the abutter con- sidered generally. 190. Elements and measure of damages. 191. Remedy by injunction. 192. Parties to actions for dam- ages and injunction. 193. Provisions of the judgment in actions to enjoin. 194. When total damages recover- able at law. 195. Damages as affected by ben- efits. 196. Change in character of neigh- borhood. 197. Exemplary and excessive damages. 198. Assignment of claim for dam- ages. 199. Interest on damages. 200. Other questions arising in actions for past and fee damages. 201. Rights of purchasers. 202. Remainder-men. 203. Action by lessor. 204. Action by lessee. 205. Right of trial by jury. 206. Limitation of action — acqui- escence and estoppel. 207. Previous offers for property. 208. Opinion evidence. 209. Other questions of evidence. 210. Taxation of the road and fix- tures. 211. Injuries to persons on street by falling objects. 212. Unguarded excavations in the street. 213. Care required in construction and management of road. TABLE OF COlSTTBIirTS. § 214. Stairways, stations and ap- proaclies to trains. 215. Regulation as to gates on car platform. 216. Entering or leaving train while in motion — riding on platform — standing in car. § 217. Removal of passengers from stations or cars— false im- prisonment. 218. Injury to persons on or near track. 219. Lessor not liable for lessee's negligence. CHAPTER VIII. REGULATION BY STATUTE AND ORDINANCE. § 220. Introductory. 221. Police power of the state. 222. Power of municipal authori- ties to impose regulations. 223. Ordinances passed in pursu- ance of express powers. 224. Regulations based on general or implied powers — pre- sumption in favor of valid- ity — power of courts to re- view. 225. Ordinances requiring driver and conductor on each car. 226. Regulations prescribing de- gree of care in operating cars. 227. Boarding or leaving car by front platform — regulation by statute. 228. Passengers' knowledge of reg- ulations presumed. §229. Regulations relating to speed and stops — railroad cross- ings. 230. Cleaning and sprinkling tracks. 231. Regulation of track and equip- ment. 232. Regulation of fares. 233. Regulation of fares further considered — reasonable- ness of rates. 234. Accommodation of public — running cars during certain hours and at fixed inter- vals — overcrowding. 235. Regulating use of snow plows. 236. Ordinances requiring quar- terly reports. 237. Regulation and custom as to transfers and coupon tickets. 238. Smoking on cars prohibited. 239. Other regulations. CHAPTER IX. PAVING. REPAYING, REPAIR AND RESTORATION OF STREETS. § 240. Pavement defined. 241. Repairing defined. 242. The duty to pave — how created. 243. Duty in absence of require- ment by statute or ordi- nance. § 244. Duty to keep street in good repair. 245. What is meant by recon- structing the street. 246. Repairs between tracks. 247. Obligation to pave whole roadway. TABLE OE CONTENTS. Xlll § 248. Repair of bridges. 249. Failure to designate who shall control repairs. 250. Extent of the duty to repair. 251. Repaying — when cost of ma- terial chargeable to city. 252. Duty to pave in case of ex- tension. 253. Change of grade — relaying tracks rendered necessary by construction of new pavement. 254. Necessity, time and character of improvement — who to determine. 255. Liability of the municipality. 256. Recovery over by city. 257. Recovery by city, on com- pany's default. § 258. Measure of damages recov- erable from company. 259. When the company may be excused from paving. 2G0. Remedy by indictment. 261. Remedy by mandamus. 262. Direct liability for injuries sustained. 263. Company's knowledge of de- fect. 264. Company complying with or- dinance not chargeable with negligence. 265. Liability of lessee to pave and repair. 2C6. Obligations of constituent companies binding upon consolidated company. CHAPTEK X. STATE AND LOCAL TAXATION— ASSESSMENTS— THE POWER TO LICENSE AND EXACT LICENSE FEES— COMPENSATION OR BONUS FOR THE RIGHT OF WAY. §267. Exemption from taxation. 268. Commutation of taxes. 269. No exemption unless such in- tent is clear. 270. Changes in the mode of taxa- tion. 271. What property taxable as real estate. 272. What taxable as personalty. 273. Taxation of the franchise. 274. Taxation of capital stock, "bonds and dividends. 275. Assessment of tracks and right of way for street im- provements. 276. Assessment where tracks are not within the space covered by the street Im- provement. 277. Assessment for widening streets. 278. Other local assessments. §279. License and license fees de- fined. 280. Power of municipal authori- ties to grant licenses and exact license fees. 281. Presumption in favor of the right to exact license fees. 282. Liberal construction in favor of the public. 283. Right to increase license fees. 284. Bonus for the use of streets. 285. Exaction of a license or bonus as affecting power to tax and assess. 286. Payment of a bonus as affect- ing the right to exact license fees. 287. How amount of bonus fixed and determined. 288. Liability of lessee to dis- charge the duties and ful- fill the obligations of the lessor. TABLE OF COWTENTS. CHAPTEE XI. THE LAW OF NEGLIGBNCE3 APPLIED TO THE CONSTRUCTION, EQUIPMENT AND MANAGEMENT OP STREET RAILWAYS AND THE RELATIVE RIGHTS, DUTIES, AND LIABILITIES OF THEIR PROPRIETORS AND OTHERS IN THE STREETS. R 307. Attention of driver, motor- § 289. Introductory. 290. Excavations and obstructions in the street. 291. Failure to make and repair pavements. 292. Construction and repair of tracks and appliances — live wires in streets. 293. Failure to remove snow and ice from track. 294. Depositing snow on the road- way — use of snow plows. 295. Use of salt on track — acci- dents caused thereby. 296. Character and condition of the cars and their equip- ment. 297. Of the right to use gong and bell. 298. Frightening horses. 299. Failure to use lamps or head- lights. 300. Failure to give warning of ap- proach by bell, gong, or whistle. 301. Collisions at railroad cross- ings. 302. Law of the road — turning to the left. 303. Street cars have the superior right of way. 304. The rule at street crossings. 305. Duty of company to avoid col- lisions. 306. Duty of driver, motor-man or grip-man to look ahead. man or grip-man tempora- rily diverted. 308. Operating cars without con- ductor. 309. Degree of care required of company. 310. Injuries to children and in- firm persons. 311. Pedestrians crossing tracks — their rights and duties. 312. Pedestrians attempting to cross track without look- ing. 313. Standing upon or walking along track. 314. Injury to work-men In the street. 315. Driving across tracks without looking. 316. Driving private vehicles along the track. 317. Degree of care required of travelers on streets occu- pied by street railway. 318. Degree of care as affected by nature of employment. 319. Rate of speed. 320. Liability as affected by ordi- nances limiting speed. 321. Collisions with vehicles near track — error of judgment. 322. Special cases of injury to travelers— runaway horses. 323. Collision — presumption of negligence. OHAPTEK XII. THE RELATIVE RIGHTS, DUTIES AND LIABILITIES OF THE RAILr WAY COMPANY AND ITS PASSENGERS. § 324. The street railway as a com- mon carrier. § 325. Discrimination on account of color. TABLE OF CONTENTS. XV § 326. Passenger defined. 327. Duties of carrier to its pas- sengers considered gener- ally. 328. Degree of care required of carrier. 329. Care required of passengers. 330. Degree of care due to chil- dren and infirm persons. 331. Condition of tracks and bridges. 332. Condition of cars and appli- ances. 333. Failure to enclose and guard front platform. 334. Duty to light station and keep same in safe condition. 335. Failure to employ both driver and conductor. 336. Boarding car ■while in motion. 337. Leaving car while in motion. 338. Riding on front platform. 339. Riding on rear platform. 340. Riding on driving-bar or dash- ■board — sitting on steps. 341. Riding on step or foot-board. 342. Position in car. 343. Boarding or leaving car by front platform. 344. Protruding head, arm or hand from window. 345. Preparing to alight while car is in motion. 346. Parallel tracks — alighting or boarding from between. 347. Duty to stop on signal. 348. Care due to passengers while entering car. 349. Passenger must be given op- portunity to leave car in safety. 350. Careless starting and stop- ping of car further consid- ered. 351. Permitting passengers to ride on platform. 352. Permitting passengers to leave by front platform. § 353. Receiving and discharging passengers while car is in motion. 354. Regulations as to the place for stopping cars. 355. Permitting car, platform or steps to become crowded. 356. Regulations as to entering, occupying or leaving car. 357. Regulations as to riding on front platform. 358. Packages carried by passen- gers, and regulations con- cerning them. 359. Rate of speed — regulations limiting same. 360. Collisions with cars and other vehicles and objects near track. 361. Presumptions arising from injury to passenger. 362. Negligence of carrier not im- puted to passenger. 363. Right to maintain joint ac- tion. 364. Payment and tender of fare. 365. Free passengers, newsboys and trespassers. 366. Traveling on Sunday. 367. Authority of carrier's ser- vants to remove persons from car. 368. Removal of sick passenger. 369. Ejecting disorderly passen- ger. 370. Expulsion of intoxicated pas- senger. 371. Expulsion of persons while car is in motion. 372. Criminal, malicious and reck- less conduct of carrier's servants. 373. False arrest and malicious prosecution. 374. Injury of one passenger by another. 375. Nature of the passenger's ac- tion for damages. 376. Care and custody of articles left in car. TABLE OF COIfTEH-TS. OHAPTEK XIII. PRINCIPLES OP THE LAW OP NEGLIGENCE FREQUENTLY INVOLVED IN STREET RAILWAY LITIGATION, AND APPLI- CABLE ALIKE TO CASES ARISING BETWEEN THE RAIL- WAY COMPANY AND THE GENERAL TRAVELING PUBLIC, AND ACTIONS BETWEEN THE CAR- RIER AND ITS PASSENGERS. 380. 381. 382. 383. i 377. Introductory. 378. Contributory negligence. 379. Comparative negligence. Liability notwithstanding neg- ligence of injured person — • subsequent negligence — last cbance. Burden of proof as to negli- gence of injured person. Voluntary exposure to dan- ger to save human life. Imminent peril — attempts escape apparent danger. 384. Extricating injured person. 385. Contributory negligence children. 386. Contributory negligence aged and infirm persons. 387. Contributory negligence parents — what constitutes. 388. Poverty as affecting the ques- tion of parents' negligence. 389. Imputing to children the neg- ligence of their parents, guardians or other custo- dians. 390. Negligence of parents as af- fecting their right to dam- to of of of 391. Imputing negligence of par- ent or other custodian to the personal representative of the infant. 392. Negligence of husband not imputable to -wife. 393. Imputing negligence of driver of private vehicle to fellow- passenger. § 394. Negligence o£ independent contractor. 395. Intoxication as evidence of negligence. 396. Criminal negligence. 397. Exclamations of pain. 398. Declarations of injured per- son. 399. Declarations and conduct of defendant's servants — priv- ileged communications. 400. Declarations of third persons. 401. Evidence of other accidents. 402. Precautions adopted after ac- cident. 403. Opinion evidence — time and distance within which cars and other vehicles may be stopped. 404. Pleading — variance between pleading and proof. 405. Liability of stockholders and directors for obligations growing out of torts. 406. The release of and satisfac- tion by one of two joint tort-feasors discharges all. 407. Physical inspection, examina- tion and tests. 408. Fright and its consequences — proximate cause. 409. Elements and measure of damages in personal injury- cases. 410. Exemplary and punitive dam- ages. TABLE OF CONTEITTS. XVll CHAPTEE XIV. THE COMPANY AND ITS SERVANTS. § 411. Who are servants. 412. Who are fellow-servants. 413. Master's liability for defec- tive appliances — safe place to work. 414. Injury caused by vicious horse. Assumption of risk — notice of danger to servant. The violation of the Sunday law by the servant as a defense to the master. 415. 416. § 417. Slander or libel of servant by master. 418. Criminal liability for cruelty to animals. 419. Action against corporation for wages. 420. Extra pay for extra hours. 421. Wages deposited by servant to secure the faithful dis- charge of his duties. CHAPTEE XV. THE ACQUISITION, ENCUMBRANCE AND ALIENATION OF PROPERTY. § 422. Voluntary sale. 423. Mortgage. 424. Power to lease. 425. Rights and liabilities of lessor and lessee. § 426. Rights and liabilities of lessor and lessee further considered. 427. Judicial sale. 428. Liens of contractors, mechan- ics, laborers and material men. 429. Consolidation. CHAPTEE XVI. INTERURBAN RAILWAYS. i 430. Introduction — definition. 431. Distinguished from street railways and commercial railroads. 432. Classification by statute. 433. Incorporation. 434. The franchise — consents of public authorities. 435. Consents of public authori- ties further considered. 436. Conditions attached by pub- lic authorities. 437. Transfers. 438. Consents of abutting owners. § 439. Forfeiture — collateral attack. 440. Additional servitude. 441. Additional servitude further considered. 442. Compensation to abutting owners for use of highway. 443. Damages for special injuries — interference with right of ingress and egress — change of grade. 444. Liability to public authori- ties for unauthorized use of highway. XVlll TABLE OF COJTTEIS^TS. § 445. Injunction. 446. Eminent domain. 447. Damages for property con- demned — practice. 448. Acquisition of property by purchase — breach of con- ditions. 449. Turnpikes — construction and operation on. 450. Grade crossings. 451. Regulation by statute and ordinance. 452. Taxation. 453. Obstructions in right of way. 454. Interfering electric currents. 455. Negligence — general state- ment. 456. Degree of care required of travelers when crossing tracks — look and listen rule. 457. Traveler on tracks — relative rights and duties. 458. Assumption of risk — "Last Clear Chance'' doctrine. 459. Injury to animals on track — duty to fence. 460. Injuries from electric shock — third-rail. §461. Parks. 462. Degree of care required of carrier — res ipsa loquitur. 463. Duty to provide safe place to alight. 464. Duty to passenger entering or leaving car — boarding car while in motion. 465. Injuries to passengers before boarding and after leaving car. 466. Degree of care required of passenger — protruding arm or hand from window. 467. Riding on platform. 468. As carriers of freight. 469. Miscellaneous — rate of speed — flagging system. 470. Fellow servant — master and servant. 471. Employers' liability laws. 472. Statutes relating to actions for death. 473. Joint use of tracks. 474. Traffic agreements. 475. Consolidations, leases, mort- gages, etc. 476. Interstate commerce law. Missing Page Missing Page Missing Page Missing Page Missing Page Missing Page TABLE OF CASES. References are to Sections. Aaron v. Second Ave. R. R. Co. (2 Daly 127), 311, 409. Abbot V. Dwinnell (74 Wis. 514), 301. Abbott V. Johnstown, Gloversville & Kingsboro Horse R. R. Co. (80 N. Y. 27), 425. V. Milwaukee Trac. Co. (126 Wis. 634), 440, 441, 442, 446, 447. Abel V. Northampton Trac. Co. (212 Pa. St. 329), 467. Abendroth v. Manhattan Ry. Co. (52 N. Y. Super. 274), 187, 190. V. Manhattan Ry. Co. (122 N. Y. 1), 185, 190, 206. V. New York Elevated R. R. Co. (54 N. Y. Super. 417), 187. Abrahams v. Los Angeles Trac. Co. (124 Cal. 411), 316. Adams v. Boston Ry. Co. (191 Mass. 486), 310. V. Hannibal & St. Joseph R. R. Co. (74 Mo. 553), 383, 399. V. City of Halifax (13 Nova Scotia Law Repts. 1 Russ. & Geld. 344), 255. v. Hastings & Dakota R. R. Co. (18 Minn. 2G0), 78, 102. V. Metropolitan St. Ry. Co. (60 App. Div. (N. Y.), 188), 387. V. Nassau Elec. Ry. Co. (51 App. Div. (N. Y.) 241), 310. V. Saratoga & Washington R. R. Co. (11 Barb. 414), 78. V. Union Ry. Co. (21 R. I. 140), 13. V. Union Ry. Co. (80 App. Div. (N. Y.) 136), 332. V. Union R. R. Co. (21 R. I. 134), 233. V. Washington & Georgetown Ry. Co. (9 App. Cas. D. C. 26), 333. Adams Express Co. v. Ohio (166 V. S. 185), 273. Adamson v. Nassau Elec. Ry. Co. (89 Hun. 261), 16, 25, 26. Adee v. Nassau Elec. Ry. Co. (65 App. Div. (N. Y.) 529), 22, 24. Adler v. Metropolitan Elevated -Ry. Co. (18 N. Y. Supp. 858), 161. V. Metropolitan Ry. Co. (138 N. Y. 173), 185. V. Whitbeck (44 Ohio St. 539),, 279. Adolph V. Central Park, North & East River R. R. Co. (76 N. Y. 530), 303, 316, 319. V. Central Park, North & East River R. R. Co. (65 N. Y. 554), 303. V. Central Park, North & Ea§,t River R. R. Co. (43 N. Y. Super. 199), 316. V. Central Park, North & East River R. R. Co. (33 N. Y. Super. 188), 316. Adsit V. Catskill Elec. Ry. Co. (88 App. Div. (N. Y.) 167), 309. Agnew V. Brooklyn City R. R. Co. (20 Abb. N. C. 235), 404. Aiken v. Holyoke St. Ry. Co. (180 Mass. 8), 385. Aikin v. Frankford & Southwark Philadelphia City Pass. Ry. Co. (142 Pa. St. 47), 339. Akerslot v. Second Ave. R. R. Co. (131 N. Y. 559), 348. Akron, B. & C. Ry. Co. v. Keck (23 Ohio C. C. 57), 443. Alabama Great Southern Ry. Co. v. Hill (90 Ala. 71), 407, 410. Alatenter v. Hudson River R. R. Co. (2 E. D. Smith 151), 302. Albany, City of v. Watervliet Turn- pike R. R. Co. ( 108 N. Y. 14 ) , 231. Albert v. Bleecker St. R. R. Co. (2 Daly 389), 323, 409. Aldrich v. Metropolitan West Side Elev. R. R. Co. (195 111. 456), 177. Alexander v. Milwaukee (16 Wis. 247), 79. V. Rochester City & Brighton R. R. Co. (128 N. Y. 13), 360. V. Rochester City & Brighton R. R. Co. (12 N. Y. Supp. 685), 360. Alexandria & Washington R. R. Co. V. Brown (17 Wall, 445), 425. (xxv) XXVI TABLE OF CASES. Keferences are to Sections. Alferman v. Union Depot Ry. Co. (125 Mo. 408), 3G1. Allegheny v. Millville B. & S. St. Ry. Co. (159 Pa. St. 411), 28, 29 30. Allen V. Clausen (114 Wis. 244), 12, 100. V Dry Dock, East Broadway & ' Battery R. R. Co. (2 N. Y. Supp. 738), 225, 308, 332, 335. V. Galveston City Ry. Co. (79 Tex. 631), 328. V. Mayor of Jersey City (22 Atl. Rep. 257), 222. Allentown Ry. Co. v. Lehigh Valley Ry. Co. (174 Pa. St. 273), 115. Allerton v. Chicago (6 Fed. Rep. 555), 280. Almand v. Atlanta Consol. Ry. Co. (108 Ga. 417), 14. Alton & Upper Alton Horse Ry. Co. V. Seitz (50 111. 210), 97. American Bank Note Co. v. Metro- politan Elevated Ry. Co. (63 Hun. 506), 190. V. Metropolitan Elevated Ry. Co. (18 N. Y. Supp. 532), 192. V. New York Elevated R. R. Co. (129 N. Y. 252), 188, 189, 190, 191, 206. V. New York Elevated R. R. Co. (13 N. Y. Supp. 626), 191, 200, 201, 206. American Coal Co. v. Allegheny County (59 Md. 197), 274. American Rapid Telegraph Co. v. Hess (125 N. Y. 641), 131. American Telegraph & Telephone Co. V. Pearce (71 Md. 535; 18 Atl. Rep. 910), 128. American Trust & Deposit Co. v. Collins Pk. R. R. Co. (101 Fed. Rep. 347), 17. Ames V. Broadway & Seventh Ave. R. R. Co. (56 N. Y. Super. 3), 387, 389. V. Union St. R. R. Co. (117 Mass. 541), 375. V. Walterloo & Cedar F. R. T. Co. (120 Iowa 640), 312. Amsterdam v. Fonda Ry. Co. (104 N. Y. Supp. 411), 250. Anderson v. Chicago, B. & Q. R. R. Co. (52 N. W. Rep. 840), 381. V. Citizens' St. Ry. Co. (12 Ind. App. 194), 349. V. City Ry. Co. (42 Ore. 505), 341. V. Minneapolis St. Ry. Co. (42 Minn. 490), 305, 306, 307, 308, 310. Anderson v. Seattle-Tacoma Inter- urban Ry. Co. (36 Wash. 387), 460, 465. . , . T, ^ Andres v. Brooklyn Heights Ry. Co. (84 App. Div. (N. Y.) 596), 304. Andrews v. Capital, North O. St. & South Wash. R. R. Co. (2 Mackey 137), 339. V St Louis Tunnel R. R. Co. (16 'mo. App. 299), 428. Ansteth v. Buffalo St. Ry. Co. (145 N. Y. 210), 365. Appeal of Beidler (17 Atl. Rep. 244), 103. Montgomery (136 Pa. St. 96), 64, 429. North Beach & Mission R. R. Co. (32 Cal. 499), 210, 271, 277. Sharon Ry. Co. (122 Pa. St. 533), 103. Appeal Tax Court v. Union R. R. Co. (50 Md. 274), 271. Appleby v. St. Paul City Ry. Co. (54 Minn. 169), 237. Archer v. Ft. Wayne & Elmwood Ry. Co. (87 Mich. 101), 333, 338. v. Rose (3 Brewst. 265), 405. v. Sixth Ave. R. R. Co. 52 N. Y. Super. 378), 407. Arkansas Midland R. R. Co. v. Can- man (52 Ark. 517), 361. Armant v. New Orleans & Carroll- ton R. R. Co. (41 La. Ann. 1020), 429. Armstead v. Mendenhall (83 Minn. 136), 303. Armstrong v. Metropolitan St. Ry. Co. (36 App. Div. (N. Y.) 525), 337. v. Montgomery St. Ry. Co. (123 Ala. 233), 345. Arnold v. Hudson River R. R. Co. (55 N. Y. 661), 206. Artlip V. Phila. Trac. Co. (198 Pa. St. 586), 411. Asbury v. Charlotte Ry. Co. (125 N. C. 568), 329, 349. Asbury Trac. Co. v. Township Com- mittee (76 N. J. Eq. 323), 436. Ashbrook v. Frederick Ave. Ry. Co. (18 Mo. App. 290), 338, 341. Asheville St. Ry. Co. v. Asheville (109 N. C. 688), 5, 40, 49. V. West Asheville Ry. Co, (114 N. C. 725), 108, 140. Ashland St. Ry. Co. v. Ashland (47 N. W. Rep. 619), 71. Ashland Ry. Co. v. Faulkner (106 Ky. 332), 94, 441, 443, 449. TABLE OF GASES. XXVll Beferences are to Sections. Ashley v. Kanawha Valley Trac. Co. (60 W. Va. 306), 229, 303. V. Manhattan Ry. Co. (13 Daly 205), 211. Ashtabula, Village of v. Bartram (3 Ohio Cir. Ct. Rep. 640), 401. Ashtabula R. T. Co. v. Holmes (67 Ohio St. 153), 349. Ashton V. Detroit City Ry. Co. (78 Mich. 587), 337. Astor V. Arcade R. R. Co. (113 N. Y. 93), 37, S8. Atcheson v. United Trac. Co. (90 App. Div. (N. Y.) 571), 385. Atchison St. Ry. Co. v. General Blec. Ry. Co. (112 Fed. Rep. 689), 108. V. Missouri Pacific R. R. Co. (31 Kan. 660), 6, 15. V. Nave (38 Kan. 744), 46, 47. Atchison, Topeka & Santa Pe R. R. Co. V. Cochran (43 Kan. 225), 405. V. Morgan (31 Kan. 77), 379. V. Thul (29 Kan. 466), 407. Athens S. & W. Elec. Ry. Co. v. Sayre Boro. (156 Pa. St. 23), 28, 30. Atkins V. Judson (33 App. Div. (N. Y.) 42), 427. Atlanta v. Gate City Ry. Co. (80 Ga. 276), 254, 268, 209. Atlanta Co. v. Atlanta R. T. Co. (113 Ga. 481), 110. Atlanta Consol. St. Ry. Co. v. At- lanta (111 Ga. 255), 257, 259. V. Bates (103 Ga. 333), 326, 346. V. Foster (108 Ga. 223), 300. V. Keeny (99 Ga. 266), 364. V. Owings (97 Ga. 663), 132. Atlanta Ry. Co. v. Atlanta R. T. Co. (113 Ga. 462), 28. V. Walker (93 Ga. 462), 302. V. "Walker (112 Ga. 725), 379. Atlanta & West Point R. R. Co. v. Wyly (65 Ga. 120), 359. Atlantic Ave Ry. Co. v. Van Dyke (72 Fed. Rep. 458), 348. Attorney General v. Bank of Char- lotte (4 Jones Eq. 287), 268. V. Chicago & Evanston R. R. Co. (112 111. 611), 12, 9, 7, 15, 34, 62, 69. v. Chicago & Evanston R. R. Co. (112 111. 520), 44, 49. V. Broad St. Ry. Co. (16 Pa. Dist. Rep. 142), 7. V. Chicago Horse & Dummy Ry. Co. (121 III. 638), 18, 24. Attorney General v. Chicago N. & W. R. R. Co. (35 Wis. 425), 44, 220. 232. V. Derry & Pelham Elec. Ry. Co. (71 N. H. 513), 50. V. Detroit Ry. Co. (96 Mich. 65), 44, 45. V. Hamilton St. Ry. Co. (24 Ont. App. 170), 74. v. Lombard & South Sts. Pass. Ry. Co. (10 Phila. 352), 11, 12, 15. V. Metropolitan R. R. Co. (125 Mass. 515), 82. V. Niagara Falls, Wesley Park & Clifton Tramway Co. (IS Ont. App. 453), 74. V. Pingree (120 Mich. 550), 2. V. Toledo Ry. (151 Mich. 473), 45. V. Toronto St. Ry. Co. (15 Grant's Ch. 187), 292. V. Toronto St. Ry. Co. (14 Grant's Ch. 673), 292. V. Railroad Co. (9 C. E. Green 49), 11. Auchincloss v. Metropolitan Ry. Co. (69 App. Div. (N. Y.) 63), 96, 100. Augusta Ry. Co. v. Glover (92 Ga. 132), 333, 346. Augusta & Summerville R. R. Co. v. Randall (79 Ga. 304), 347, 398, 409. V. Randall (85 Ga. 297), 409. V. Renz (55 Ga. 120), 74, 338, 402. Aurora v. Brown (12 111. App. 122), 401. V. Elgin (227 111. 485), 1. Aurora Ry. Co. v. Harvey (178 111. 477), 446. Austin V. Detroit Ry. Co. (134 Mich. 149), 441, 443. V. Metropolitan Ry. Co. (95 N. Y. Supp. 740), 472. Austin R. T. Co. v. Grothe (88 Tex. 262), 412. Avon v. Neptune City (57 N. J. L. 362), 18. Avon-by-tho-Sea Land Co. v. Mayor (32 Atl. Rep. 220), 28. Ayars v. Camden Ry. Co. (63 N. J. L. 416), 320. Aycock V. San Antonio Brew. Assn. (26 Tex. Civ. App. 341), 9, 90. Ayres v. Morris & Essex Ry. Co. (5 Dutcher 393), 356. A., B. & C. Ry. Co. v. Keck (23 Ohio C. C. 57), 97. XXVlll TABLE OF CASES. References are to Sections. B Babcock v. Los Angeles Trac. Co. (128 Cal. 173), 337. Bach V. New York Elevated Ry. Co. (14 N. Y. Supp. 620), 192, 205. Bageard v. Consolidated Trac. Co. (64 N. J. L. 316), 395. Baier v. Camden Ry. Co. (68 N. J. L. 42), 307. Bailey v. Philadelphia, Washington & B. R. R. Co. (4 Harr. 389), 220. V. New Haven & N. R. R. Co. (107 Mass. 496), 301. Baird v. Citizens' Ry. Co. (146 Mo. 265), 310. V. Daily (68 N. Y. 547), 402. Baker v. Boston Elec. Ry. Co. (183 Mass. 178), 177, 185. V. Eighth Ave. R. R. Co. (16 N. Y. Supp. 320), 310. Baldwin v. Barney (12 R. I. 392), 366. V. Fair Haven Ry. Co. (68 Conn. 567), 355. Ballard v. Citizens' St. Ry. Co. (18 Ind. App. 523), 292. Baltimore v. Baltimore City Pass. Ry. Co. (57 Md. 31), 274. V. Baltimore C. & B. M. Pass. Ry. Co. (84 Md. 1), 1. Baltimore Belt Ry. Co. v. Lee (75 Md. 596), 100. V. McColgan (83 Md. 650), 92. Baltimore City Pass. Rv. Co. v. Kemp (61 Md. 74), 375, 409. V. McDonnell (43 Md. 534), 305, 306, 307, 320, 359, 385, 389, 400. V. -Wilkinson (30 Md. 224), 338, 356, 357, 358. Baltimore Consol. Ry. Co. v. Pore- man (94 Md. 226), 345. Baltimore H. G. Co. v. Baltimore (64 Fed. Rep. 153), 13. Baltimore Pass. Ry. Co. v. North Ave. R. R. Co. (75 Md. 233), 6, 108, 111. Baltimore Trac. Co. v. Appel (80 Md. 603), 380. V. Helms (84 Md. 515), 311. V. State (78 Md. 409), 326, 336. V. Wallace (77 Md. 435), 309. Baltimore Trust Co. v. Atlantic Trac. Co. (09 Fed. Rep. 358), 412. v. Baltimore (64 Fed. Rep. 153), 17. Baltimore Turnpike v. Baltimore Ry. Co. (81 Md. 247), 103, 446, 449. Baltimore Union Pass. Ry. Co. v. Baltimore (71 Md, 405), 287. Baltimore & P. Turnpike Rd. v. United Ry. & Elec. Co. (93 Md. 138), 449. Baltimore & Ohio R. R. Co. v. Bahrs (28 Md. 647), 309. V. Grainor (33 Md. 542^ 300. V. State (29 Md. 460), 309. V. Whitacre (35 Ohio St. 627), 381. V. Whittington (30 Gratt. 805), 381. Baltimore & Yorktown Turnpike Road V. Boone (45 Md. 344), 220 233. V. Cason (72 Md. 377), 338. V. Crowther (63 Md. 558), 291. V. Leonhardt (66 Md. 70), 328, 329, 337, 342, 345, 356, 361. Bambace v. Interurban St. Ry. Co., (188 N. Y. 288), 385. Bamberger v. Citizens' St. Ry. Co. (95 Tenn. 18), 389, 391. Bammel v. Kirby (19 Tex. Civ. App. 198), 1. Banet v. Alton & S. R. R. Co. (13 111. 504), 37. Bangs V. Lewiston & Auburn R. R. (89 Me. 194), 243. Banks v. Highland St. Ry. Co. (136 Mass. 485), 314, 378. Bank v. Commonwealth (9 Wall. 363), 274. V. Commonwealth (6 Bush. 127), 285. Bank of Niagara v. Johnson (8 Wend. 645), 50, 184. Barber v. Saginaw St. Ry. Co. (83 Mich. 299; 47 N. W. Rep. 219), 83, 127. Bardstown & Louisville R. R. Co. v. Metcalfe (4 Mete. (Ky.) 199), 423. Barger v. North Chicago St. Ry. Co. (54 m. App. 284), 326. Barker v. Central Park Ry. Co. (151 N. Y. 237), 364. V. Savage (1 Sweeny 288), 316. Barksdull v. New Orleans & Carroll- ton R. R. Co. (23 La. Ann. 180), 3S5, 389. Barlow v. Jersey City Ry. Co. (67 N. J. L. 364), 338. Barnes v. Shreveport City Ry. Co. (47 La. Ann. 1218), 389. Barney v. City of Keokuk (94 U. S. 324), 78, 99. V. Mt. Adams & Eden Park Plane Ry. Co. (30 W. L. B. 286), 18. Barre v Reading Pass. Ry. Co. (155 Pa. St. 170), 365. TABLE OF CASES. XXIX Eeferences are to Seotions. Barrett v. Manhattan Ry. Co. (118 N. Y. Supp. 71), 201, 205. V. Market St. Ry. Co. (81 Cal. 296), 364. V. Third Ave. R. R. Co. (1 Sweeny 568), 359, 362. V. Third Ave. R. R. Co. (45 N. Y. 628), 362, 363, 406. Barry v. Second Ave. R. R. Co. (16 N. Y. Supp. 518), 387, 399. V. Union Tract. Co. (194 Pa. St. 576), 341. Bartlett v. Street Ry. Co. (82 Mich. 658), 420. Hartley v. Metropolitan St. Ry. Co. (148 Mo. 124), 328. Barto V. Beaver Valley Trac, Co. (216 Pa. St. 328), 303. Baschor v. Dressel (34 Md. 503), 14. Bass V. C. & N. Ry. Co. (36 Wis. 450), 356. V. Concord St. Ry. Co. (70 N. H. 170), 331, 463. V. Norfolk Ry. Co. (100 Va. 1), 312. Bates V. Holhrook (171 N. Y. 460), 97. Battishill v. Humphreys (64 Mich. 494), 378, 389. Baumgartner v. Mankato (60 Minn. 244), 255. Baxter v. Second Ave. R. R. Co. (3 Robt. 510), 311, 316, 321. Bearden v. Madison (73 Ga. 134), 220. Beardsley v. Minneapolis St. Ry. Co. (54 Minn. 504), 413. Beath v. Rapid Ry. Co. (119 Mich. 512), 409. Beattie v. Citizens' Pass. Ry. Co. (1 Atl. Rep. 574), 337. Beaumont Trac. Co. v. Texarkana St. Ry. Co. (124 S. W. Rep. 987), 429. V. State (46 Tex. Civ. App. 576), 231. Becke v. Missouri Pacific Ry. Co. (102 Mo. 544), 393. Becker v. Detroit City Ry. Co. (121 Mich. 580), 229. V. Gulf City St. Ry. Co. (80 Tex. 475), 429. V. Lebanon Ry. Co. (188 Pa. St. 484), 443. V. Metropolitan Elevated Ry. Co. (30 N. B. Rep. 499; Affg. 14 N. Y. Supp. 312), 209. Bedford v. Nashville (7 Heisk. 409), 274. Beekman v. Third Ave Ry. (13 App. Div. (N. Y.) 279), 6. Beekman v. Third Ave. Ry. Co. (153 N. Y. 144), 26. Beem v. Tama Ry. Co. (104 Iowa 563), 310. Beeson v. Chicago (75 Fed. Rep. 880), 14. Behen v. St. Louis Trans. Co. (186 Mo. 430), 472. Bell V. Cape Breton Elec. Ry. Co. (37 Nova Scotia Rep. 298), 294. V. Town of Westmount (9 Quebec Q. B. 34), 108. V. Winnipeg Elec. St. Ry. Co. (15 Manitoba Rep. 338), 331. Bell Telephone Co. v. Montreal St. Ry. Co. (Q. R. 6, Q. B. 223), 67, 135, p. 263. Belle V. Glenville (27 Ohio C. C. 181), 63, 69. Bellefontaine & Indiana R. R. Co. v. Snyder (18 Ohio St. 400), 389. Belleville v. Citizens' Horse Ry. Co. (152 111. 171), 49. Bellevue v. Citizens' Horse Ry. Co. (152 111. 171), 17. Bellew v. New York W. & C. Trac. Co. (47 App. Div. (N. Y.) 477), 192. Belton V. Baxter (58 N. Y. 411), 321. V. Baxter (54 N. Y. 245), 311, 317. V. Baxter (33 N. Y. Super. 182), 316. Benedict v. Seventh Ward Ry. Co. (51 Hun 111), 18. Bengivenga v. Brooklyn Heights Ry. Co. (48 App. Div. (N. Y.) 515), 314. Bennett v. Chicago City Ry. Co. (243 111. 420), 412. V. Metropolitan St. Ry. Co. (112 Mo. App. 703), 310. V. New Jersey R. R. Co. & Trans- portation Co. (36 N. J. L. 225), 362. Benson v. Manhattan Ry. Co. (13 N. Y. Supp. 957), 208. V. Mayor (10 Barb. 223), 220. V. Tacoma Ry. Co. (51 Wash. 216), 395. V. Paul (6 El. & Bl. 273), 261. Benton v. Seattle Elec. Ry. Co. (50 Wash. 156), 28. Benton Harbor v. St. Joseph & B. H. St. Ry. Co. (102 Mich. 386), 261. Benwood v. Wheeling Ry. Co. (53 W. Va. 465), 6, 16, 28. Bequette v. Peoples' Transportation Co. (2 Ore. 200), 379. Bergen County Trac. Co. v. Bliss (62 N. J. L. 410), 403. TABLE OF CASES. References are to Sections. Bergen County Trac. Co. t. Heit- man (61 N. J. L. 682), 385. V. Ridgefleld (32 Atl. Rep. 754), 434. Berger v. Omalia & C. B. Ry. Co. (139 la. 343), 348. Bergert v. Davenport St. Ry. Co. (34 Iowa 571), 292. Beringer v. Dubuque Ry. Co. (118 Iowa 135), 337. Berke v. Twenty-third St. Ry. Co. (4 N. Y. Supp. 905), 322. Berks County v. Reading City Pass. Ry. Co. (167 Pa. St. 102), 28, 248. Berkson v. Kansas City Ry. Co. (144 Mo. 211), 107. Bernina (L. R. 12 P. D. 58), 393. Berry v. XJtica Belt Line Ry. Co. (76 App. Div. (N. Y.) 490), 348. Bertram v. Peoples' Ry. Co. (154 Mo. 639), 348. Bessinger v. Metropolitan St. Ry. Co. (79 App. Div. (N. Y.) 32), 349. Beveridge v. New York El. R. R. Co. (112 N. Y. 1), 424. Blddle V. Hestonville, Mantua & Fairmount Pass. Ry. Co. (112 Pa. St. 551), 365, 371. Blggart V. Manhattan Ry. Co. (12 N. Y. Supp. 549), 196. Billman v. Indianapolis C. &. L. R. Co. (76 Ind. 166), 298. Biloxl City R. R. Co. v. Maloney (74 Miss. 738), 78. Binghamton v. Binghamton & Port Dickinson Ry. Co. (16 N. Y. Supp. 225), 241, 254. Binninger v. City of New York Ry. Co. (177 N. Y. 199; 80 App. Div. (N. Y.) 438), 244, 259. Birch V. Lake -Roland El. Ry. Co. (83 Md. 362), 190. Birkett v. Knickerbocker Ice Co. (110 N. Y. 504), 391. Birmingham v. Birmingham, Roch- ester City & Brighton R. R.. Co. (59 Hun 583; 37 N. Y. St. Rep. 317), 327. V. Rochester City & Brighton Ry. Co. (14 N. Y. Supp. 13), 331. V. Rochester City & Brighton Ry. Co. (18 N. Y. 649), 331. Birmingham Ry. Co. v. Alexander (93 Ala. 133), 290, 292. V. Baird (130 Ala. 334), 372. V. Baker (132 Ala. 506), 318. v. Birmingham Trac. Co. (128 Ala. 110), 427. V. Brannan (132 Ala. 431), 336. Birmingham Ry. Co. v. Clarke (41 So. Rep. 829), 380. V. Hale (90 Ala. 8), 361, 397. V. Jacobs (92 Ala. 187), 432. V. James (121 Ala. 120), 337. V. Landrum (153 Ala. 192), 385. V. Nolan (134 Ala. 329), 410. V. Pinchard (124 Ala. 372), 305. V. Powell (136 Ala. 132), 450. V. Wildman (119 Ala. 547), 464. Birmingham Ry. & Elec. Co. v. Wildman (119 Ala. 547), 349. Birmingham Trac. Co. v. Birming- ham Ry. & Elec. Co. (119 Ala. 137), 83, 114. V. Southern Bell Telephone & T. Co. (119 Ala. 144), 135, p. 265. Birmingham & Pratt-Mines St. Ry. Co. V. Birmingham St. Ry. Co. (79 Ala. 465), 6, 14, 17, 108, 110. BischofE V. New York Elev. R. R. Co. (138 N. Y. 257; 18 N. Y. Supp. 865), 186, 195. V. Peoples' Ry. Co. (121 Mo. 216), 383. Bishop V. Belle City Ry. Co. (92 Wis. 139) 298 V. St' Paul City R. R. Co. (48 Minn. 26), 332, 409. V. Union R. R. Co. (14 R. I. 314), 34, 225, 239, 308, 335. Bissell V. New York Central R. R. Co. (23 N. Y. 61), 187. Black V. Brooklyn City Ry. Co. (108 N. Y. 640), 336. V. New Orleans & Carrollton R. R. Co. (10 La. Ann. 33), 410. V. Philadelphia & Reading R. R. Co. (58 Pa. St. 249), 51. V. Sixth Ave. Ry. Co. (1 Daly 536), 287. V. Staten Is. Ry. Co. (40 App. Div. (N. Y.) 238), 303. Blackmore v. Toronto St. Ry. C!o. (38 Up. Can. Q. B. 172), 326. Bladecka v. Bay City Co. (15 Detroit Leg. N. 965), 380. Blair v. Chicago (201 U. S. 400). 17, 40. Blake v. Winona & St. Peter R. R. Co. (19 Minn. 418), 220, 232. Blakney v. Seattle Elec. Ry. Co (28 Wash. 607), 337. Blanchard v. L. S. & Michigan Southern R. R. Co. (126 111 416), 359. Bland v. Shreveport Belt Ry Co (48 La. Ann. 1057), 413. TABLE OF CASES. XXXl References are to Sections. Blashfield v. Empire State Tele- graph & Telephone Co. (18 N. Y. Supp. 250), 128. Bliss V. Town of South Hadley (13 N. E. Rep. 352), 389. Block V. Brooklyn Heights Ry. Co. (32 App. Div. (N. T.) 4G8), 24. V. Harlem Bridge, Morrisania & Fordham R. R. Co. (28 N. Y. St. Rep. 495; 9 N. Y. Supp. 164), 385. V. Milwaukee St. Ry. Co. (89 "Wis. 371), 292. V. Worcester Ry. Co. (186 Mass. 526), 336. Block! V. People (220 111. 444), 48. Blondel v. St. Paul City Ry. Co. (66 Minn. 284), 339. Bloomington v. Zimmerman (101 111. App. 184), 349. Bloxham v. Consumers' Blec. Lt. & Ry. Co. (147 Pa. St. 579), 1. Blum V. Metropolitan St. Ry. Co. (79 App. Div. (N. Y.) 611), 316. Blumenthal v. New York Elevated R. R. Co. (17 N. Y. Supp. 481), 193. Bly V. Nashua St. Ry. Co. (67 N. H. 474), 229. Board of Equalization v. People (191 111. 528), 273. Board of Supervisors v. Sea View Ry. Co. 23 Hun 180), 191. Board of Trade Telephone Co. v. Barnett (107 111. 507), 128. Boentgen v. New York & Harlem Ry. Co. (36 App. Div. (N. Y.) 460), 315. Boggess V. Metropolitan St. Ry. Co. (118 Mo. 328), 409. Bohlen v. Metropolitan Elevated Ry. Co. (121 N. Y. 546), 191. Bohm V. Metropolitan Elevated R. R. Co. (129 N. Y. 576), 190, 195, 209. Bohn V. Brown (33 Mich. 257), 405. Boland v. Missouri R. R. Co. (36 Mo. 484), 305, 306, 309, 310. Bolster v. Ithaca St. Ry. Co. (79 App. Div. (N. Y.) 239), 243. Bonce v. Dubuque St. Ry. Co. (53 Iowa 278), 328, 381. Bonham v. Citizens' St. Ry. Co. (158 Ind. 106). 229. Bookman v. New York Elev. R. R. Co. (147 N. Y. 298; 137 N. Y. 302), 195. Boone v. Oakland Trans. Co. (139 Cal. 490), 345. Borden v. Atlantic Highlands Ry. Co. (18 N. J. L. J. 305), 441, 445, 449. Borough V. Railway Co. 9 Pa. Co. Ct. Rep. 98), 245. V. Railway Co. (8 Pa. Co. Ct. Rep. 102), 245. Borst V. Lake Shore & C. R. R. Co. 4 Hun 346; Aff'd. 66 N. Y. 639), 298. Bosqui V. Sutro Ry. Co. (131 Cal. 391), 331. Boston V. Boston Elev. Ry. Co. (186 Mass. 274), 242. v. Union Freight R. R. Co. (181 Mass. 205), 242. Boston Beer Co. v. Massachusetts (97 U. S. 25), 238. Boston R. R. Co. v. Saco Valley Ry. Co. (98 Me. 78), 450. Boston & Maine Ry. Co. v. Mayor & Aldermen of Portsmouth (71 N. H. 21), 55. Boston & Worcester R. R. Co. v. Western R. R. Co. (14 Gray 253), 116. Bowditch V. New Haven (40 Conn. 503), 276. Bowdle V Detroit St. Ry. Co. (103 Mich. 272), 332. Bowe V. Allenstown (34 N. H. 351), 15. Bowen v. Detroit City R. R. Co. (54 Mich. 490), 294. Bower v. Burlington & Southwest- ern R. R. Co. (42 Iowa 546), 425. Bowie V. Birmingham Ry. Co. (125 Ala. 397), 325. V. Greenville St. Ry. Co. (69 Miss. 196), 341, 345, 347. Boyce v. Manhattan Ry. Co. (54 N. Y. Super. 286), 214. Boyer v. St. Paul Ry. Co. (54 Minn. 127), 346. Brace v. New York Central R. R. Co. (27 N. Y. 269), 75. Braddock & Turtle Creek Ry. Co. v. Braddock Electric Ry. Co. (1 Pa. Dist. Rep. 44), 63, 109. Bradley v. Buffalo, New York & Erie R. R. Co. (34 N. Y. 427),220. v. Second Ave. R. R. Co. (8 Daly 289), 395. Bradshaw v. South Boston R. R. Co. (135 Mass. 407), 237. Bradwell v. Pittsburg Ry. Co. (153 Pa. St. 105), 316. Bradwell v. Pittsburg West End Pass. Ry. Co. (139 Pa. St. 404), 381. XXXll TABLE OF CASES. References are to Sections. Brady v. Manhattan Ry. Co. (15 Daly 272), 2'14. ,,„„ ^, ^ V. Manhattan Ry. Co. (127 N. Y. 46), 214. Brainard v. Nassau Ry. Co. (44 App. Div. (N. Y.) 613), 341. Branz v. Omaha Ry. Co. (120 la. 406), 415. Braslin v. Somerville Horse R. R- Co. (145 Mass. 64), 425. Breen v. New York Central & Hud- son R. R. R. Co. (109 N. Y. 297), 344. V New York Central & Hudson R. R R. Co. (40 Hun 638), 344. V. Pittsburg Ry. Co. (220 Pa. St. 612), 100. Breese v. Trenton Horse R. R. Co. (52 N. J. L. 250), 375. Bremer v. St. Paul City Ry. Co. (107 Minn. 326), 312. Brennan v. Fair Haven & Westville R. R. Co. (45 Conn. 284), 309, 326, 356. Brenner v. Toronto R. W. Co. (13 Ontario L. Rep. 423), 380. Brickell v. New York Central & Hudson R. R. R. Co. (120 N. Y. 290; 30 N. Y. St. Rep. 932), 362, 393. Brickies v. Milwaukee Trac. Co. (134 Wis. 358), 441, 446, 447, 473. Bridgeport v. N. Y. & H. R. R. Co. (36 Conn. 255), 275. Bridgeton v. Bridgeton & Millville Trac. Co. (62 N. J. L. 592), 51. Bridgewater v. Beaver Valley Trac. Co. (214 Pa. St. 343), 50. Briggs V. Lewistown & Auburn Horse R. R. Co. (79 Me. 363), 80, 82, 87, 92, 97. V. Union St. Ry. Co. (148 Mass. 72), 336. Brisbine v. St. Paul & Sioux City R. R. Co. (23 Minn. 149), 78. Brittain v. West End St. Ry. Co. (168 Mass. 10), 412. Britton v. Street Ry. Co. (51 N. W. Rep. 276), 349. V. Atlanta & Charlotte Air-Line Ry. Co. (88 N. C. 536), 325. Broadway & Newburgh St. Ry. Co. V. Brooklyn St. Ry. Co. (10 W. L. B. 72), 63. Broadway & Seventh Ave. R. R. Co. V. Mayor (49 Hun 126; 1 N. Y. Supp. 648), 98, 224, 235. Broderick v. St. Paul City Ry. Co. (74 Minn. 163), 415. Brookhouse v. Union Ry. Co. (132 Mass. 178), 291. Brooklyn v. Brooklyn City R. it- Co. (47 N. Y. 475), 249. 256, 257. v Brooklyn City B. R. Co. (57 Barb. 497), 249. V Brooklyn R. R. Co. (11 App. Div. (N. Y.) 168), 229. V. Nassau Elec. Ry. Co. (20 App. Div. (N. Y.) 31; 38 App. Div. (N. Y.) 365), 29, 229, 231. Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co. (32 Barb. 358), 5, 40, 47. Brooklyn Central & Jamaica R. R. Co V. Brooklyn City R. R. Co. (33 Barb. 420), 82, 108, 114. Brooklyn City R. R. Co. v. Furey (4 Abb. Pr. N. S. 364), 11. Brooklyn City & Newton R. R. Co. V. Coney Island & Brooklyn R. R. Co. (35 Barb. 364), 3, 13, 82, 108. Brooklyn Crosstown R. R. Co. v. Brooklyn (37 Hun 413), 222, 225, 308. V. Brooklyn City R. R. Co. (51 Hun 600), 124. Brooklyn Elev. Ry. Co.. Matter of (6 App. Div. (N. Y.) 53), 190, 191. Brooklyn Heights Ry. Co. v. Brook- lyn (152 N. Y. 244), 56, 95. v. MacLaury (107 Fed. Rep. 644), 409. Brooklyn Ry. Co. v. Nagel (75 Hun 590), 56. Brooklyn St. R. R. Co. v. Kelley (6 Ohio C. C. 155), 328, 375, 404. Brooklyn Steam Transit Co. v. Brooklyn (78-N. Y. 524), 45, 46, 49, 50, 184. Brooklyn & R. B. Ry. Co. v. Long Is. Ry. O). (72 App. Div. (N. Y.) 496), 6, 31. Brooks V. Lincoln St. Ry. Co. (22 Neb. 816), 303, 305, 306, 316. Broome v. New York & New Jer- sey Telephone Co. (42 N. J. Bq. 141), 128. Broschart v. Tuttle (59 Conn. 1; 11 L. R. A. 333), 359. Brown V. Atlantic Ry. Co. (113 Ga. 462), 3, 6, 12, 15, 44, 61. V. Broadway & Seventh Ave. R. R. Co. (50 N. Y. Super. 105), 311. V. Chattanooga Elec. Ry. Co. (101 Tenn. 252), 415. V. Congress & Baker St. Ry. Co. (49 Mich. 153), 349. TABLE OF CASES. XXXlll Befeieuces are to Sections. Brown v. Duplessis (14 La. Ann. 842), 14, 82, 284. V. Elizabeth Ry. Co. (68 N. J. L. 618), 457. V. European & North American Ry. Co. (58 Me. 384), 385. V. Manhattan Ry. Co. (82 App. Div. (N. Y.) 222), 215. V. Metropolitan St. Ry. Co. (60 App. Div. (N. Y.) 184), 292. V. Rapid Ry. Co. (130 Mich. 483), 237. V. Rome, W. & O. R. R. Co. (1 N. Y. Supp. 286), 301. V. Rosedale St. Ry. Co. (15 S. W. Rep. 120), 403. V. Seattle Ry. Co. (16 Wash. 416), 349. V. Twenty-Third St. R. R. Co. (56 N. Y. Super. 356; 4 N. Y. Supp. 192), 229, 312, 319, 320. V. Washington & Georgetown Ry. Co. (11 App. Cas. (D. C.) 37), 336. Bruen v. Manhattan Ry. Co. (14 N. Y. Supp. 285), 200. Brunhild v. Chicago Union Trac. Co. (239 111. 621), 404. Brunswick & Western R. R. Co. v. Hoover (74 Ga. 426), 300. Brush V. Manhattan Ry. Co. (17 N. Y. Supp. 540), 209. V. Manhattan Ry. Co. (13 N. Y. Supp. 908; 6 Abb. N. C. 73), 195. Brush Electric Light Co. v Jones Bros. Electric Co. & Brush Electric Light Co. v. Queen City Electric Co. (5 Ohio C. C. 340), 120. Buchanan v. West Jersey R. R. Co. (52 N. J. L. 265), 408. Bucher v. Pittsburg R. R. Co. (131 Mass. 156), 366. Buck V. Manhattan Ry. Co. (15 Daly 550), 216, 361. V. Manhattan Ry. Co. (15 Daly 276), 216. V. Manhattan Ry. Co. (15 Daly 48), 216. V. Peoples' St. Ry. & Electric Light & Power Co. (108 Mo. 179), 365. Budd V. Camden Ry. Co. (61 N. J. Bq. 543), 100. V. Multnomah St. Ry. Co. (15 Ore. 404), 2, 6. Buffalo East Side R. R. Co. v. Buffalo City R. R. Co. (Ill N. Y. 132), 221, 223. Buffalo Trac. Co., Matter of (25 App. Div. (N. Y.) 447), 31. Buffalo & New York City R. R. Co. V. Dudley (14 N. Y. 336), 37, 38. Buhrens v. Dry Dock E. B. & B. R. R. Co. (53 Hun 571), 304. Bulger v. Albany Ry. Co. (42 N. Y. 459), 306, 310. Bulkley v. N. Y. & N. H. R. Co. (27 Conn. 479), 220. Bullock V. West Chicago Rapid Transit Co. (23 Chic Leg. News 149), 19, 20, 22, 23, 24. V. Wilmington St. Ry. Co. (5 Penn. (Del.) 209), 231. Bunning v. Cincinnati St. Ry. Co. (1 Ohio C. C. 323), 100. Bunting V. Hogsett (139 Pa. St. 363,) 362. Bunyan v. Citizens' Ry. Co. (127 Mo. 12), 312. Burbridge v. Kansas City Cable R. R. Co. (36 Mo. App. 669), 312, 326. Burk V. Metropolitan Ry. Co. (73 Hun. 251), 195. Burke v. Carbondale Trac. Co. (15 Pa. Co. a. Rep. 159), 47. V. Manhattan Ry. Co. (13 Daly 75), 211. V. Seventh Ave. & Broadway R. R. Co. (49 Barb. 529), 385. v. Street Ry. Co. (102 Tenn. 409), 381. V. Union Trac. Co. (198 Pa. St. 497), 315. Burlington v. Burlington St. Ry. Co. (49 Iowa 144), 19, 244. Burlington & Missouri R. R. Co. v. Reinhackle (15 Neb. 279), 78, 185. Burmeister v. New York Elevated R. R. Co. (47 N. Y. Super. 264), 212. Burnham v. Grand Trunk Ry. Co. (63 Me. 298), 237. V. Chicago (24 111. 496), 240. Burnell v. West Side Ry. Co. (87 Wis. 387), 413. Burns v. Bellefontaine Ry. Co. (50 Mo. 139), 227, 338. V. Boston Ry. Co. (183 Mass. 96), 338. V. Metropolitan St. Ry. Co. (60 Kan. 188), 315. V. Multnomah Ry. Co. (8 Sawyer 543), 103. Bush V. St. Joseph Ry. Co. (113 Mich. 513), 316. XXXIV TABLE OF CASES. References are to Sections. Butler V. Glen Falls, Sandy Hill & Ft. Edward St. R. R. Co. (121 N. Y. 112), 336. V. Manhattan Ry. Co. (143 N. Y. 417), 409. V. Pittsburg & Birmingham Trac- tion Co. (139 Pa. St. 195), 340, 351. V. "Walker (80 111. 345), 38. Butler's Appeal (73 Pa. St. 448), 267. Butteli V. Jersey City Ry. Co. (59 N. J. L. 302), 310. Button V. Hudson River R. R. Co. (18 N. Y. 248), 305, 323, 378, 381. V. Hudson River R. R. Co. (20 N. Y. 65), 381. Buys V. Third Ave. Ry. Co. (45 App. Div. (N. Y.) 11), 318. Buzby V. Philadelphia Traction Co. (126 Pa. St. 559), 311, 312. Byrd v. New Orleans City & Lake R. R. Co. (9 So. Rep. 565), 329, 348. Byrne v. Chicago Gen. Ry. Co. (169 111. 75; 63 111. App. 438), 29, 30. Byrnes v. Brooklyn Heights Ry. Co. (36 App. Div. (N. Y.) 355), 412. Byron v. Lynn Ry. Co. (177 Mass. 303), 339. Cable V. McClure (2'6 Mo. 371), 405. V. Spokane Ry. Co. (50 Wash. 619), 456. Cadigan v. Brown (120 Mass. 493), 101. Cadle V. Muscatine & Western R. R. Co. (44 Iowa 11), 102. Cadmus v. St. Louis Bridge & Tun- nel Co. (15 Mo. App. 86), 380. Cain V. Chicago, Rock Island & Pacific R. R. Co. (54 Iowa 255), 12. Call V. Portsmouth Ry. Co. (69 N. H. 562), 290. Calumet St. Ry. Co. v. Christenson (70 111. App. 85), 316. V. Grosse (70 Til. App. 381), 132. V. Jennings (83 111. App. 612), 361. V. Peters (88 111. App. 112), 412. Cambridge v. Cambridge R. R. Co. (10 Allen 50), 233. Cambridge R. R. Co. v. Charles River St. Ry. Co. (139 Mass. 454), 114, 116. Camden Horse R. R. Co. v. Citizens' Coach Co. (31 N. J. Eq. 525; 28 N. J. Eq. 145), 112. Camden Ry. Co. v. Atlantic City (58 N. J. L. 316), 273. Camden Ry. Co. v. Lee (84 S. W. Rep. 332), 475. V. Preston (59 N. J. L. 264), 303. v. Stetson (177 U. S. 172), 407. V. Young (60 N. J. L. 193), 465. Camden & Amboy R. R. Co. v. Briggs (22 N. J. L. 623), 232. Cameron v. United Trao. Co. (67 App. Div. (N. Y.) 557), 429. Campbell v. Frankford & Southwark Pass. Ry. Co. (139 Pa. St. 522), 290. V. Frankford & Southwark City Pass. Ry. Co. (139 Pa. St. 522), 264. v. Indianapolis Trac. Co. (39 Ind. App. 605), 459. V. Los Angeles Ry. Co. (135 Cal. 137), 337. V. Los Angeles Trac. Co. (137 Cal. 565), 315. V. Metropolitan St. R. R. Co. (82 Ga. 320), 77, 80, 91. V. New Orleans Ry. Co. (104 La. 183), 310. Canal & Claiborne St. R. R. Co. v. Crescent City R. R. Co. (10 So. Rep. 888), 110, 115. V. City of New Orleans (39 La. Ann. 709), 43. V. Crescent City R. R. Co. (41 La. Ann. 561), 6, 108, 110, 115, 125. V. Orleans R. R. Co. (10 So. Rep. 389), 110, 115, 124. V. St. Charles St. Ry. Co. (44 La. Ann. 1069), 422. Canastota Knife Co. v. Newington Tramway Co. (69 Conn. 146), 56. Canfleld v. North Chicago St. Ry. Co. (98 111. App. 1), 299. Canman v. City of St. Louis (97 Mo. 92), 16. Canning v. Williamstown (1 Cush. 451), 408, 409. Cape May v. Cape May Ry. Co. (64 N. J. L. 80), 279, 280. Cape May, Delaware Bay & Sewell's Pt. Ry. Co. v. Cape May (58 N. J. L. 565), 57. Cape May R. R. Co. v. Cape May (59 N. J. L. 393), 229, 231. Cape May & Schellinger's Landing R. R. Co. V. Cape May (35 N. J. Eq. 419), 40. Capital Trac. Co. v. Lusby (12 App. Cas. (D. C.) 295), 346. V. Offutt (17 App. Cas. JD. C.) 292), 429. Carl V. Sheboygan & Fon du Lac R. R. Co. (46 Wis. 625), 102. TABLE OF CASES. XXXV Beferences are to Sections. Carll T. Stillwater St. Ry. & Trans- fer Co. (28 Minn. 373), 82, 90. V. Union Depot & St. Ry. & Trans- fer Co. (32 Minn. 101), 80, 91, 96, 107. Carlisle v. Brisbane (6 Atl. Rep. 372) 393 V. Sheldon "(38 Vt. 440), 392. Carlson v. Lynn Ry. Co. (171 Mass. 388), 307. Carlstadt Borough v. City Trust Co. (69 N. J. L. 44), 47. Caro V. Metropolitan Elevated Ry. Co. (46 N. Y. Super. 138), 191. Carpenter v. Central Park, North & East River R. R. Co. (4 Daly 550; 11 Abb. Pr. 416), 291, 292. V. Washington & Georgetown R. R. Co. (2 Ry. & Corp. L. J. 38), 237. Carr v. Toledo Trac. Co. (19 Ohio C. C. 281), 364. Carrell v. Muncie Ry. Co. (34 Ind. App. 700), 447. Carrington v. Louisville & Nashville R. R. Co. (88 Ala. 472), 379. Carroll v. Boston St. Ry. Co. (186 Mass. 97), 372. y. Inter-State Rapid Transit Co. (16 N. Y. Supp. 889), 216. V. Peoples' Ry. Co. (14 Mo. App. 490), 419. T. Staten Island R. R. Co. (58 N. Y. 126), 366. Carson v. Central R. R. Co. (35 Cal. 325), 77, 82, 91, 95. T. Federal St. & Pleasant Val- ley Pass. Ry. Co. (147 Pa. St. 219), 315. Carter v. Chicago (57 111. 283), 7. T. Columbia & (jreenville R. R. Co. (19 So. Car. 20), 381. T. Kansas City Cable Ry. Co. (42 Fed. Rep. 37), 332. v. New York Elevated 'R. R. Co. (57 N. Y. Super. 279), 191, 208. Cartright v. Chicago Grand Trunk Ry. Co. (52 Mich. 606), 331. Carty v. City of London & London St. Ry. Co. (18 Ont. App. 122), 291. V. City of London (9 Can. Law. Times 449), 256. Carver v. Braintree Manufacturing Co. (2 Story 432), 405. Casey v. New York Central & Hud- son River R. R. Co. (78 N. Y. 518), 301. V. Smith (152 Mass. 294), 389. Cass V. Third Ave. Ry. Co. (20 App. Div. (N. Y.) 59), 305. Cassady v. Old Colony St. Ry. Co. (184 Mass. 156), 3S1. Cassidy v. Angell (12 R. I. 447), 381. Caswell V. Boston Elec. Ry. Co. (190 Mass. 527), 9. Catalanotto v. Coney Island & Brighton R. R. Co. (7 N. Y. Supp. 628), 361. Oattano v. Metropolitan St. Ry. Co. (173 N. Y. 565), 338. Caulahan v. Metropolitan St. Ry. Co. (28 App. Div. (N. Y.) 394), 321. Cawley v. La Crosse City Ry. Co. (106 Wis. 239), 309, 456. Cedar Rapids v. Cedar Rapids Ry. Co. (108 Iowa 406), 240. Cedar Rapids Ry. Co. v. Cedar Rapids (106 Iowa 476), 1. V. Cedar Rapids (106 Iowa 476), 431, 432, 433, 452. V. Cummins (125 Iowa 430), 430, 431, 432, 433, 452, 455. Central Branch Union Pacific R. R. Co. V. Andrews (26 Kan. 702), 102. Central City Horse Ry. Co. v. Ft. Clark Ry. Co. (81 111. 523, 527), 118. Central Crosstown R. R. Co. v. Metropolitan St. Ry. Co. (16 App. Div. (N. Y.) 229), 113. Central National Bank v. Worces- ter Horse R. R. Co. (13 Allen 105), 426. Central Pass. Ry. Co. v. Bishop (8 Ky. Law. Rep. 781; 9 Ky. Law. Rep. 348), 328, 361. V. Kuhn (86 Ky. 578), 220, 301, 361, 362. V. Louisville City Ry. Co. (21 Fed. Rep. 358), 51. Central R. R. Co. & Banking Co. v. Denson (88 Ga. 774), 378. Central R. R. Co. v. Green (86 Pa. St. 421), 325. V. Gleason (69 Ga. 200), 379. Central Ry. Co. v. Bannister (195 111. 48), 381. V. Brewer (78 Md. 394), 373. V. Buck (82 Md. 647), 292. V. Knowles (191 111. 241), 316. V. Mackey (102 111. App. 15), 370. V. Peacock (C9 Md. 257), 372. V. Phila., Wil. & B. R. R. (95 Md. 428), 114. V. Smith (21 Atl. Rep. 70S), 348. XXXVI TABLE OF CASES. References are to Sections. Central Ry. & Elec. Co. v. New York, N. H. & H. R. R. Co. (72 Conn. 33), 64. Central R. & L. Co.'s Appeal (67 Conn. 197), 3, 13, 29, 30, 435. Central Trust Co. v. Gate City St. Ry. Co. (96 Iowa 646), 427. V. Municipal Trac. Co. (169 Fed. Rep. 308), 43. V. Wabash, St. L>. & P. Ry. Co. (27 Fed. Rep. 159), 383. Central Union Telephone Co. v. Sprague Electric & Motor Co. (unreported), 135, p. 242. Chamberlain v. Town of Wheatland (26 N. Y. St. Rep. 602), 362. Ohampane v. La Crosse Ry. Co. ( 121 Wis. 554), 337. Chance v. St. Louis, Iron Mountain & Southern Ry. Co. (10 Mo. App. 351), 326. Chandler v. Coast Elec. Ry. Co. (61 N. J. L. 380), 413. Chapman v. Albany & Schenectady R. R. Co. (10 Barb. 360), 78. V. Zanesville St. Ry. Co. (27 W. L. B. 70), 298. Charleston v. London Tramways Co. (36 Week. Rep. 367), 373. Chartrand v. Southern Ry. Co. (57 Mo. App. 425), 332'. Chase v. Jamestown St. Ry. Co. (15 N. Y. Supp. 35), 332, 401. Chattanooga Elec. R/. Co. v. Mingle (103 Tenn. 667), 292. Chattanooga R. T. Co. v. Walton (105 Tenn. 415), 404. Cheney v. Boston & Maine R. R. Co. (11 Mete. 121), 357. Chesapeake & Ohio Canal Co. v. Bait. & Ohio R. R. Co. (4 Gill & J. 122), 44. Chesapeake & Ohio Ry. Co. v. Miller (114 U. S. 176), 39. Chesapeake, Ohio & S. W. R. R. Co. V. Wells (85 Tenn. 613), 325. Chesapeake & P. Telephone Co. v. Makenzle (21 Atl. Rep. 690), 12S. Chester v. Chester Trac. Co. (4 Pa Super. Ct. 575), 230. Chester Ry. Co. v. Darby (217 Pa. St. 275), 40. Chester Trac. Co. v. Phila., Wil. & Bait. R. R. Co. (188 Pa. St. 105), 109. Chicago T. Baer (41 111. 306), 267, 275. V. Chicago Ry. Co. (222 111. 560), 234. V. Chicago Union Trac. Co. (199 111. 259), 230. Chicago V. Chicago Western & In- diana R. R. Co. (105 111. 73), 46, V Chicago & West Indiana R. R. 'co. (100 111. 112), 34. V Evans (24 111. 52), 91, 113, 426. V. Hesing (83 111. 204), 39L V Manger (105 111. 579), 303. V. Powers (42 111. 169), 40L V. Rumpfe (45 111. 90), 17. V. Sheldon (9 Wall. 50), 241, 242, 244, 275. V. Starr (42 111. 174), 391. Chicago B. R. R. Co. v. West Chicago Ry. Co. (156 111. 255), 114. Chicago B. & Q. R. R. Co. v. Dick- son (88 111. 431), 298. V. Dunn (52 111. 451), 298. V. GrifCen (68 111. 499), 369. V. Iowa (94 U. S. 155), 155, 220. V. Perkins (125 111. 127), 301. V. South Park Commissioners (11 111. 562), 275. V. Steel (47 Neb. 741), 114. Chicago City Ry. Co. v. Blanchard (35 111. App. 481), 421. V. Brady (35 111. App. 460), 378. V. City of Chicago (90 111. 573), 271, 277. V. Delcourt (33 111. App. 430), 336. V. Engel (35 111. App. 490), 328, 361. V. Gilliam (27 111. App. 386), 409. V. Lewis (5 111. App. 242), 379, 395. V. Mumford (97 111. 560), 337, 349. V. Pelletier (134 111. 120), 371. V. People (73 111. 541), 6, 33, 44, 47 50 55 V. Robinson (127 111. 9), 11, 3, 300, 306, 312, 387, 389, 391. V. Story (73 111. 541), 47, 50. V. Volk (45 111. 175), 301. V. Wilcox (138 111. 370), 385, 389. V. Wilcox (33 111. App. 450). 385. V. Wilcox (27 N. E. Rep. 899), 389. V. Young (62 111. 238), 355. Chicago Dock & Canal Co. v. Garrity (115 111. 155), 56. Chicago General Ry. Co. v. Carroll (91 111. App. 356), 305. V. Chicago (176 111. 253), 284. V. Chicago City Ry. Co. (186 111. 219), 67. V. Chicago City Ry, Co. (62 111. App. 503), 117. V. Chicago, Burl. & Quincy Ry. Co. (181 111. 605), 109. V. Spry Lumber Co. (60 111. App. 646), 115. TABLE OF CASES. XXXVll Beferences are to Sections. Chicago General Ry. Co. v. "West Chicago Ry. Co. (63 111. App. 464), 109. Chicago L,ife Insurance Co. v. Nee- dles (113 U. S. 574), 44. Chicago, M. & St. P. Ry. Co. v. Minnesota (134 U. S. 418), 232. Chicago N. Shore St. Ry. v. Payne (192 111. 239), 11, 102. Chicago Office Bldg. v. Lake St. Elev. Ry. Co. (87 111. App. 594), 185, 190. Chicago Packing & Provision Co. v. Chicago (88 111. 221), 280. Chicago, Rock Island & Pacific Ry. Co. V. Chicago (27 N. E. Rep. 926), 275. V. City of Joliet (79 111. 25), 34. V. Clough (134 111. 586), 383. Chicago R. R. Co. v. Indianapolis Trac. Co. (165 Ind. 453), 450, 451. Chicago St. Ry. Co. v. Ahler (107 111. App. 397), 309. V. Anderson (182 III. 298), 360. V. Barnes (114 III. App. 495), 312. V. Benson (108 111. App. 193), 315. V. Biederman (102 111. App. 617), 385. V. Carroll (102 111. App. 202), 326. V. Catlin (70 111. App. 97), 361. V. Chicago (142 Fed. Rep.) 233. V. Commission (173 Ind. 469), 432. V. Considine(50 111. App. 471), 355. V. Dinsmore (162 111. 658), 350. V. Fox River El. Co. (119 Wis. 181), 422. V. Freeman (125 111. App. 318), 231 V. Iverson (108 111. App. 433), 304. V. Krempel (103 111. App. 1), 409. V. Lace (62 111. App. 535), 360. V. Leach (104 111. App. 30), 412. V. Met. Ry. Co. (152 111. 519), 103. V. Milwaukee, R. & K. Ry. Co. (95 Wis. 561), 440, 44L V. Mochell (193 111. 208), 393. V. Montgomery Ward & Co. (76 III. App. 536), 7. V. Morse (98 III. App. 662), 350. V. CDonnell (114 111. App. 359), 231 V. Payne (192 111. 239), 107. V. Rood (163 111. 477), 361. V. Smith (54 111. App. 415), 322. V. Tuohy (196 111. 410), 310. V. Whiting H. & E. C. Ry. Co. (139 Ind. 297), 83, 450. Chicago Term. R. R. Co. v. Chicago (184 111. 154), 275. Chicago Union Trac. Co. v. Case (129 111. App. 451), 250. V. Dyboig (107 111. App. 644), 316. V. Fitzgerald (138 111. App. 520), 292. V. Kallberg (107 111. App. 90), 341. V. Stanford (104 111. App. 99), 425. Chicago West Div. Ry. Co. v. Bert (69 111. 388), 303. V. Becker (128 111. 545), 398. V. Bolton (37 111. App. 143), 312. V. Hair (57 111. App. 587), 225. V. Haviland (12 111. App. 561), 386. V. Hughes (69 111. 170), 350. V. Ingraham (131 111. 659), 303, 304, 306. V. Klauber (9 111. App. 613), 338, 341 359 V. Mills (91 111. 39), 349. V. Mills (105 111. 63), 349. V. Ryan (31 111. App. 621), 389. Chicago & Alton R. R. Co. v. Greg- ory (58 111. 226), 388. V. Pierson (105 111. 657)', 220. V. People (67 111. 11), 220. Chicago & Eastern R. R. Co. v. Flex- man (103 111. 546), 372. V. Loeb (118 111. 203), 102. Chicago & Evanston R. R. Co. v. Dresel (110 111. 89), 107. Chicago & M. Ry. Co. v. Chicago & N. W. R. R. Co. (211 111. 352), 446, 473. V. Diver (213 111. 26), 447. Chicago, N. & S. W. R. R. Co. v. Newton (36 Iowa 299), 3, 78. Chicago & Milwaukee Elec. Ry. Co. V. Illinois C. R. R. Co. (13 Inter- state Commerce Rep. 20), 475, 476. Chicago & North Western Ry. Co. v. Coss. (73 111. 394), 381. V. Chicago & Evanston R. R. Co. (112 111. 589), 103, 107, 118. v. Hoag (90 111. 339), 102. v. Milwaukee R. & K. Blec. Ry. Co. (95 Wis. 561), 78, 90. V. People (56 111. 365), 65. v. Scates (90 111. 586), 336. V. Williams (55 111. 185), 325. Chicago & S. S. R. T. Ry. Co. v. Northern T. Co. (90 111. App. 460), 6, 29. Child V. Boston & Fair Haven Iron Works (137 Mass. 516), 405. V. New York Elev. R. R. Co. (80 App. Div. (N. T.) 598), 204. Childs V. New Orleans City R. R. Co. (33 La. Ann. 154), 303, 311, 403. Chilvers v. People (11 Mich. 49), 280. XXXVIH TABLE OF CASES. Eeferences are to Sections. Chouquette v. Southern Elec. Ry. Co. (152 Mo. 257), 229. Christopher & Tenth St. R. R. Co. v. Central Crosstown R. R. Co. (67 Barb. 315), 6, 56, 108. V. Mayor (1 Abb. N. C. 79), 98. Cicero St. Ry. Co. v. Brown (89 111. App. 318), 410. V. Chicago (176 111. 501), 275. Cicero & Provico St. Ry. Co. v. Sni- der (72 111. App. 300), 378. Cincinnati v. Columbia & Cincin- nati St. Ry. Co. (17 W. L. B. 192), 28. V. Lessee of White (6 Peters 431), 7. Cincinnati College v. Nesmith (2 C. S. C. R. 24), 19. Cincinnati, Georgetown & P. Ry. Co. V. Berkhardt (10 Ohio C. C. 543), 3, 43. Cincinnati, Hamilton & Dayton R. R. Co. V. Kassen (31 N. E. Rep. 282) 380 V. McMuUeii (117 Ind. 439), 381. V. Van Dome (1 Ohio Clr. Ct. Rep. 292), 394. Cincinnati Inclined Plane Ry. Co. V. City & Suburban Telegraph Ass'n. (24 W. L. B. 471), 135, p. 247. V. City & Suburban Telegraph Ass'n. (48 Ohio St. 390), 75, 76, 83, 127, 135, p. 248. Cincinnati, Lawrenceville & Aurora St. Ry. Co. V. North Bend (70 Ohio St. 46), 28. Cincinnati Omnibus Co. v. Kuhnell (11 W. L. B. 189), 339, 340. Cincinnati Southern R. R. Co. v. Chattanooga Electric St. R. R. Co. (44 Fed. Rep. 470), 7. Cincinnati St. Ry. Co. v. Altemeier (60 Ohio St. 10), 409. V. Burkhardt (10 Ohio C. C. 543), 466. V. FuUbright (7 "W. L. B. 187), 328. V. Haines (12 Ohio C. C. 17), 458. V. Jenkins (20 Ohio St. 256), 316. V. Kelsey (9 Ohio C. C. 170), 361. V. Lewis (23 Ohio C. C. 127), 319. V. Lohe (68 Ohio St. 101), 431, 432, 455, 467. V. Murray (53 Ohio St. 570; 9 Ohio C. C. 291), 229, 361. V. Nolthenius (40 Ohio St. 376), 290, 291. V. Shnell (54 Ohio St. 197). 311 456. Cincinnati St. Ry. Co. v. Stable (37 Ind. App. 539), 229, 458. V. Whitcomb (66 Fed. Rep. 915), 303, 456. V. Wright (54 Ohio St. 181), 378, 385. Cincinnati Trac. Co. v. Blackson (27 Ohio C. C. 191), 385. V. Cramer (12 Ohio C. C. 315), 295. V. Holzenkamp (74 Ohio St. 379), 361. V. Hulvershorn (12 Ohio C. C. (N. S.) 390), 317. V. Kroeger (10 Ohio C. C. 64), 303, 316. V. McKee (27 Ohio C. C. 630), 409. V. Pittsburg, C. & C. & St. L. Ry. Co. (79 Ohio St. 243), 114. V. Sanders (12 Ohio C. C. 266), 393. Cincinnati & Clifton Inclined Plane R. R. Co. V. Pfau (9 W. L. B. 200), 97. C. & H. Elec. St. Ry. Co. v. C, H. & I. R. R. Co. (21 Ohio C. C. 391), 432 Cincinnati & Spring Grove Ave. St. Ry. Co. V. Cumminsville (14 Ohio St. 523), 76, 77, 82, 91, 100, 185. Circleville v. Neuding (41 Ohio St. 465), 394. Citizens' Coach Co. v. Camden Horse R. .R. Co. (33 N. J. Eg. 267; 29 N. J. Eq. 299), 82, 110, 112. Citizens' Pass. Ry. Co. v. Foxley (107 Pa. St. 537), 307. V. Ketcham (122 Pa. St. 228), 290. V. Pittsburgh (104 Pa. St. 522), 1, II, 210, 271. V. Philadelphia (49 Pa. St. 251), 274. V. Thomas (132 Pa. St. 504), 306, 307. Citizens' Ry. Co. v. Donahue (10 W. N. C. 62), 272. Citizens' Rapid T. Co. v. Dew (100 Tenn. 317), 309. Citizens' St. Ry. Co. v. Ackley (159 Ind. 368), 132, 292. V. Africa (100 Tenn. 26), 28, 56. V. Ballard (22 Ind. App. 151), 292. V. Carey (56 Ind. 396), 305, 306, 308, 314. V. City Ry. Co. (64 Fed. Rep. 647), 6, 28. TABLE OP CASES. References are to Sections. Citizens' St. Ry. Co. v. Clark (33 Ind. App. 190), 237. V. Commissioners (56 Ohio St. 1), 435, 444. V. Detroit Ry. Co. (171 U. S. 48), 6, 108. V. Ford (93 Tex. 110), 226. V. Ford (25 Tex. Civ. App. 328), 312. V. Gifford (19 Tex. Civ. App. 631), 132, 292. V. Helvie (22 Ind. 515), 315. V. Holmes (19 Tex. Civ. App. 266), 300. V. Homer (29 Ind. App. 426), 309, 385. v. Huffer (26 Ind. App. 575), 349. V. Jackson (107 Tenn. 444), 316. V. Jolley (161 Ind. 80), 355. V. Jones (34 Fed. Rep. 579), 14, 33, 34, 55, 67. V. Memphis (53 Fed. Rep. 715), 37, 51. V. Merl (134 Ind. 609), 326. V. Reed (28 Ind. App. 629), 413, 415. V. Richland (56 Ohio St. 1), 434. V. Robertson (125 S. W. Rep. 343), 385. V. Selgrlst (96 Tenn. 119), 304. V. Shepherd (29 Ind. App. 412), 327. V. Steen (42 Ark. 321), 229, 306, 309, 319, 380, 410. V. Stoddard (10 Ind. App. 278), 387 V. Sutton (148 Ind. 169), 291. V. Twiname (111 Ind. 587), 324, 327, 328, 331. V. Twinane (121 Ind. 375), 409. V. Washington (24 Tex. Civ. App. 442), 383. v. Wllloeby (15 Ind. App. 312), 409. City Elec. St. Ry. Co. v. Conery (61 Ark. 381), 132, 133. v. Jones (61 111. App. 183), 308. V. Shropshire (101 Ga. 33), 369. City Ry. Co. v. Citizens' Ry. Co. (166 U. S. 557), 31, 109. V. Lee (50 N. J. L. 435), 341. v. Thompson (20 Tex. Civ. App. 16), 306. City of Trenton v. Trenton Horse R. R. Co. (19 Atl. Rep. 263), 72. City & Suburban Ry. Co. v Brauss (70 Tex. 368), 410. V. Findley (76 Ga. 311), 328, 345, 349, 361. City & Suburban Ry. Co. v. Savan- nah (77 Ga. 731), 222, 230. City & Suburban Telegraph Asso- ciation V. Cincinnati Inclined Plane Ry. Co. (23 W. L. B. 165), 135, p. 246. Clark V. Eighth Ave. R. R. Co. (36 N. Y. 135), 338, 341. V. Hannibal & St. Joe R. R. Co. (36 Mo. 202), 220. V. Harrisburg Trac. Co. (20 Pa. Super. Ct. 76), 370. V. Manhattan Ry. Co. (77 App. Div. (N. Y.) 284), 412. V. Metropolitan St. Ry. Co. (68 App. Div. (N. Y.) 49), 329. V. Nassau Elec. R. R. Co. (9 App. Div. (N. Y.) 51), 133, 292. v. Newsam (1 Exch. 131), 410. V. Rochester City & Brighton R. R. Co. (12 N. Y. Supp. 563; 18 N. Y. State 903), 82. V. Second & Third Sts. Pass. Ry. Co. (3 Phila. 259), 91, 100. Cleghorn v. New York & Hudson R. R. Co. (56 N. Y. 44), 410. Clement v. City of Cincinnati (16 W. L. B. 355), 1, 41, 43, 63, 69, 84. Clements v. Louisiana Electric Light Co. (11 So. Rep. 51), 292, 381. Cleveland v. Bangor St. Ry. Co. (87 Me. 259), 406. V. Cleveland & Newburg R. R. Co. (1 Clev. Rep. 304), 257. Cleveland Ry. Co. v. Cleveland (94 Fed. Rep. 385), 40. V. Cleveland (137 Fed. Rep. Ill), 17, 33, 43, 62. v. Ebert (19 Ohio C. C. 725), 408. V. Osborn (66 Ohio St. 45), 350, 360. V. Somers (24 Ohio C. C. 67), 413. V. Urbana Ry. Co. (26 Ohio C. C. 180), 109, 432, 446, 450. V. Wadsworth (25 Ohio C. C. 376), 315, 346. Cleveland Trac. Co. v. Ward (27 Ohio C. C. 761), 332. Cleveland, C, C. & I. Ry. v. Schnei- der (45 Ohio St. 678), 201. Cleveland, Columbus & Cincinnati R. R. Co. V. Terry (8 Ohio St. 570), 386. Cllne V. Crescent City R. R. Co. (41 La. Ann. 1031), 58, 243. V. Crescent City R. R. Co. (43 La. Ann. 327), 292. xl TABLE OF CASES. References are to Sections. Clinton v. Brooklyn Heights Ry. Co. (91 App. DiV. (N. Y.) 374), 336. V. Cedar Rapids & Missouri R. R. Co. (24 la. 455), 3, 76, 78, 79, 87. Clissold V. Machell (26 U. C. Q. B. 422), 410. Clover V. Joplan Ry. Co. (140 Mo. App. 413), 299. Clutzbeher v. Union Pass. Ry. Co. (1 Atl. Rep. 597), 365. Coast Line R. R. Co. v. Boston (83 Ga. 387), 349. V. Cohen (50 Ga. 451), 12. V. Savannah (30 Fed. Rep. 646), 5, 242, 244. Coatesville Gas Company v. Chester County (97 Pa. St. 476), 272. Coatesville Ry. Co. v. Uwchlan Ry. Co. (18 Pa. Super. Ct. 524), 113. Cobb V. Boston Ry. Co. (179 Mass. 212), 374. V. Lindell Ry. Co. (149 Mo. 135), 349. Coddington v. Brooklyn & Cross- town R. R. Co. (102 N. Y. 66), 328. Cody V. New York & N. E. R. R. Co. (151 Mass. 462), 383. Coe V. Columbus, Pictua & Indiana R. R. Co. (10 Ohio St. 372), 422, 423. Cogswell V. New York, New Haven & Hartford R. R. Co. (105 N. Y. 319), 205, 209. Cohen v. Dry Dock, Bast Broadway & Battery R. R. Co. (69 N. Y. 170), 305, 372. V. Dry Dock, East Broadway & Battery R. R. Co. (40 N. Y. Super. 368), 372. V. West Chicago St. Ry. Co. (60 Fed. Rep. 698), 348. Coleman v. Second Ave. R. R. Co (48 Barb. 371), 31. V. Second Ave. R. R. Co. (38 N Y. 201), 3, 14. V. Second Ave. R. R. Co. (114 N Y. 609), 331. Coll V. Easton Trans. Co. (180 Pa St. 618), 399. College Park Elec. Belt Line v. Ide (15 Tex. Civ. App. 573), 427. Coller V. Prankford & Southwark Pass. Ry. (9 W. N. C. 477) 326 336, 347, 385. Collins V. Amsterdam St. Ry. Co (76 App. Div. (N. Y.) 249), 31 V. Greenfield (172 Mass. 78), 255 Collins V. South Boston R. R- Co. (142 Mass. 301), 307, 387. Collins Park Ry. Co. v. "Ware (112 Ga. 663), 332. Colonial City Trac. Co. v. Kingston City R. R. Co. (153 N. Y. 540), 19, 28. Colorado Central R. R. Co. v. Holmes (5 Colo. 197), 380. Colorado Springs Ry. Co. v. Petit (37 Colo. 326), 465. Colrick V. Swinburne (105 N. Y. 503), 206. Colt V. Sixth Ave. R. R. Co. (33 N. Y. Super. 189), 349. V. Sixth Ave R. R. Co. (49 N. Y. 671), 349. Columbus V. Columbus St. Ry. Co. (45 Ohio St. 98), 253, 254, 257. Columbus Ry. Co. v. Columbus (43 Ind. App. 265), 33. V. Columbus (10 Ohio N. P. (N. S.) 161), 451. V. Connor (27 Ohio C. C. 229), 320, 403. V. Ritter (67 Ohio St. 53), 381. Columbus Ry. & Light Co. v. Co- lumbus (8 Ohio Law Rep. 161), 225. Colwell V. Manhattan Ry. Co. (57 Hun 452), 216. Comerford v. West End St. Ry. Co. (164 Mass. 13), 417. Commissioners v. A., B. & C. R. R. Co. (21 Ohio C. C. 769), 435. V. Bank (28 Pa. St. 383), 45. V. Burgess (61 Md. 29), 381. V. Citizens' Elec. Ry. Co. (9 Ohio C. C. 183), 435, 444. V. Holyoke Water Power Co. (104 Mass. 446), 119. V. Metropolitan R. R. Co. (182 111. 246), 275. V. South Bend Wishawaka St. Ry. Co. (118 Ind. 68), 51, 56. Commonwealth v. Alger (7 Cush. 53), 220. V. Bank (10 Pa. St. 449), 282. V. Berks County Prison Warden (11 Pa. Dist. Rep. 45), 74, 366. V. Boston & Worcester R. R. Co. (101 Mass. 201), 301. V. Brocton St. Ry. Co. (143 Mass. 501), 372, 396. V. Brush Elec. Lt. Co. (204 Pa. St. 249), 272. V. Camden Trac. Co. (68 S W. Rep. 628), 59. V. Capp (48 Pa. St. 53), 79. TABLE OP CASES. Xll References are to Sections. Commonwealth v. Central Pass. Ry. Co. (52 Pa. St. 506), 1, 10. v. Eastern R. R. Co. (103 Mass. 254), 65, 119, 220. V. Edison Elec. L. & P. Co. (170 Pa. St. 231), 269. V. Erie & North East Ry. Co. (27 Pa. St. 339), 11, 57, 78. V. Estodder (6 Cush. 562), 220. V. Gage (114 Mass. 328), 220. V. Hicks (7 Allen 573), 303. V. Inter-State Ry. Co. (187 Mass. 436), 233. V. Jendelle (3 Phlla. 509), 74. V. Jendelle (2 Grants Cas. 506), 74. V. Jones (174 Mass. 401), 237. V. Louisville • Ry. Go. (131 Ky. 583), 432, 469. V. Louisville & Nashville R. R. Co. (80 Ky. 291), 74. V. Matthews (122 Mass. 60), 220. V. Metropolitan R. R. Co. (107 Mass. 236), 307, 396. V. New Bedford Bridge (2 Gray 339), 57. V. New York, P. & O. R. R. Co. (138 Pa. St. 58), 65. V. Nashua & Lowell R. R. Co. (2 Gray 54), 57. V. Northeastern Elev. Ry. Co. (161 Pa. St. 409), 1, 57. V. Old Colony & P. R. R. Co. (14 Gray 93), 12. V. Power (7 Mete. 596), 237, 357. V. Railway (14 W. N. C. 402), 60. V. Robb (14 Pa. Co. Ct. Rep. 473), 366. V. Robertson (5 Cush. 438), 220. V. Smith (10 Allen 448), 422, 423, 425. V. Temple (14 Gray 69), 303. V. Tenth Massachusetts Turnpike Corp. (11 Cush. 171, 175), 44. V. Union Trac. Co. (192 Pa. St. 507), 288. V. Uwchlan St. Ry. Co. (203 Pa. St. 608), 63, 118. V. Vermont & Massachusetts R. R. Co. (4 Gray 22), 57. V. West Chester (9 Pa. Co. Ct. Rep. 542), 83. V. Wilkes-Barre & Kingston St. Ry. Co. (127 Pa. St. 278), 56. Commonwealth Blec. Co. v. Melville (210 111. 70), 292. V. Rose (214 111. 545), 415. Concord v. Concord Horse R. R. Co. (65 N. H. 30), 56. Cone V. Hartford (28 Conn. 363), 75. Conelly v. Trenton Pass. Ry. Co. (56 N. J. L. 700), 312. Coney Island & Brooklyn R. R. Co. V. Brooklyn Cable Co. (53 Hun. 169), 426. Coney Is., Ft. H. & Brooklyn R. R. V. Kennedy (15 App. Div. (N. Y.) 588), 7, 22, 28, 39. Coney Is. & Gravesend Ry. Co. v. Coney Is. & Brooklyn R. R. Co. (38 App. Div. (N. Y.) 494), 426. Conger v. B. S. & W. R. R. Co. (41 Iowa 419), 99. Conkling v. Manhattan Ry. Co. (12 N. Y. Supp. 846), 202. Conley v. Forty-Second St. M. & St. Nicholas Ave. Ry. Co. (2 N. Y. Supp. 229), 337, 345, 349. Connelly v. Manhattan Ry. Co. (142 N. Y. 377), 213, 328. Conner v. Citizens' St. Ry. Co. (105 Ind. 62), 336, 348. Connolly v. Crescent City R. R. Co. (41 La. Ann. 57), 368. V. Knickerbocker Ice Co. (114 N. Y. 104), 341, 385. Connor v. Citizens' Ry. Co. (146 Ind. 430), 349. V. Metropolitan St. Ry. Co. (48 App. Div. (N. Y.) 580), 294. Conrad v. St. Louis Ry. Co. (89 Mo. App. 534), 315. Conrad Grocer Co. v. St. Louis & Meramec Ry. Co. (89 Mo. App. 391), 316. Conroy v. Twenty-Third St. Ry. Co. (52 How. Pr. 49), 291. V. Oregon Construction Co. (23 Fed. Rep. 71), 381. Consolidated City Ry. Co. v. Carl- son (58 Kan. 62), 305. Consolidated Trac. Co. v. Cheno- with (58 N. J. L. 416), 318. V. Chenowith (61 N. J. L. 554), 300. V. Elizabeth (58 N. J. L. 619), 239 V. Haight (59 N. J. L. 577), 3, 6. V. Lamberson (60 N. J. L. 457), 409. V. South Orange & Maplewoocl Trac. Co. (56 N. J. Eq. 569), 63, 450. V. Taborn (58 N. J. L. 1), 237. Continental Pass. Ry. Co. v. Swain (13 "W. N. C. 41), 350. Conway v. Lewiston Ry. Co. (87 Me. 283), 326. xlii TABLE OF CASES. References are to Sections. Conway v. Rochester (157 N. Y. 33), 242, 275. ,. p at Cook V. Chicago, Minneapolis & bt. Paul Ry. Co. (49 N. W. Rep. 92), 77, 91. ^ ^ ,^„ r. Metropolitan R. H- Co. (98 Mass. 361), 316. V New York & Floating Dry Dock Co. (1 Hilt. 436), 292. V. Union Ry. Co. (125 Mass. 57), 292. Cook Inv. Co. V. Bvansvllle Term. By. Co. (93 N. B. Rep. 279), 433, 446. Cooney v. Southern Elec. Ry. Co. (80 Mo. App. 226), 226. Cooper V. Manhattan Ry. Co. (85 Hun 517), 186. V. North Carolina Ry. Co. (140 N. C. 209), 456. V. Randall (59 111. 317), 102. V. St. Paul City Ry. Co. (54 Minn. 379), 407. V. Second & Third Sts. Pass. R. R. Co. (3 Phila. 262), 30. Coopers & Clark v. Wolf (15 Ohio St. 523), 423. Coosaw Mining Co. v. State of South Carolina (24 Chic. Leg. News 270), 33. Copeland v. Metropolitan St. Ry. Co. (78 App. Div. (N. Y.) 418), 311. Corbett v. Twenty-Third St. Ry. Co. (42 Hun 587), 364, 372. Corcoran v. New York Elevated R. R. Co. (19 Hun 368), 218. Cords V. Third Ave. R. R. Co. (56 N. Y. Super. 319; 4 N. Y. Supp. 439), 306, 323. Corey v. Bath (35 N. H. 530), 366. V. Buffalo, Corning & New York Central R. R. Co. (23 Barb. 482), 78. Corlin v. West End St. Ry. Co. (154 Mass. 197), 336. Cornell v. Detroit City Electric Ry. Co. (82 Mich. 495), 298. V. New York Elevated R. R. Co. (37 N. Y. St. Rep. 624), 206. Cornish v. Toronto St. Ry. Co. (23 Up. Can. C. P. 355), 338. Correll v. B. C. R. & M. R. R. Co. (38 Iowa 120), 359. Cotant V. Boone Suburban Ry. Co. (125 la. 46), 465. Cotter V. Lynn Ry. Co. (180 Mass. 145), 387. Coughlin V. Brooklyn Heights Ry. Co. (59 App. Div. (N. Y.) 126), 401. „ _ Coughtry v. Willamette St. Ry. Co. (27 Pac. Rep. 1031), 298. CounclU V. W. & A. R. R. Co. (1 Int. St. Com. Rep. 339), 325. Countryman v. Fonda Ry. Co. (166 N. Y. 201), 294. Coverdale v. Charton (L. R. 4 Q. B. 121), 75. Covington St. Ry. Co. v. Covington (9 Bush. 127), 14, 284. Covington St. Ry. Co. v. Covington & Cincinnati St. Ry. Co. (19 Am. Law Reg. 765), 82, 115. V. Covington & Cincinnati R. R. Co. (1 Ky. Law Rep. 341), 117. V. Covington & Cincinnati St. Ry. Co. (1 Ky. Law Rep. 318), 108. V. Packer (9 Bush. 455), 409. Covington Transfer Co. v. Kelly (36 Ohio St. 86), 362. Covington & Cincinnati Elec. Ry. Co. V. Klegmeier (105 Ky. 609), 190. Covington & Lexington R. R. Co. V. Bowler's Heirs (9 Bush. 468), 427. V. Kenton Co. Ct. (12 B. Mon. 144), 37. Cowan V. Muskegon Ry. Co. (84 Mich. 583), 290. Cowan V. Third Ave. R. R. Co. (9 N. Y. Supp. 610), 309, 386. Cox V. Louisville, New Albany & Chicago R. R. Co. (48 Ind. 178), 78 99 V. Railway Co. (2 Mona. 140), 290. V. South Shore St Ry. Co. (182 Mass. 497), 381. Craig V. Rochester City & Brighton R. R. Co. (39 Barb. 494), 18, 82, 91, 100. Craighead v. Brooklyn City R. R. Co. (123 N. Y. 391), 331, 341, 35L Craker v. Chicago & N. W. R. R. Co. (36 Wis. 657), 372. Cram v. Metropolitan R. R. Co. (112 Mass. 38), 336, 337. Cramer v. City of Burlington (45 Iowa 627), 402. Crank v. Forty-Second St., Manhat- tanville & St. Nicholas Ry. Co. (53 Hun 425), 409. • Cratty v. City of Bangor (57 Me. 423), 366. Crawford v. Village of Delaware (7 Ohio St. 460), 185. TABLE OF OASES. xliii Befeiences are to Sections. Crawford v. Metropolitan Elevated Ry. Co. (120 N. Y. 624), 208. Creamer v. West End St. Ry. Co. (156 Mass. 320), 326. Crescent City Ry. Co. v. Board of Assessors (51 La. Ann. 335), 273. V. New Orleans & C. R. R. (48 La. Ann. 856), 110. Crissey v. Hestonville, Mantua & Falrmount Pass. Ry. Co. (75 Pa. St. 83), 338, 352, 385. Cronan v. Crescent City Ry. Co. (49 La. Ann. 65), 337. Cronin v. Highland St. Ry. Co. (144 Mass. 249), 237. Crooms v. Schad (51 Pla. 168), 325. Cross V. California St. Cable Co. (102 Cal. 313), 316. V. Detroit City Ry. Co. (120 Mich. 137), 374. V. Lake Shore & M. S. Ry. Co. (69 Mich. 363), 334. Crosstown St. Ry. Co., Matter of (68 Hun 236), 21. Crow V. Metropolitan St. Ry. Co. (70 App. Dlv. (N. Y.) 202), 345. Crowly V. Burlington Ry. Co. (65 Iowa 658), 220. Crump V. Davis (88 Ind. App. 88), 349. Crumpley v. Hannibal & St. J. R. R. Co. (19 S. W. Rep. 820), 381. Culbertson v. Metropolitan St. Ry. Co. (140 Mo. 35), 302. Culp V. Atchison & Nebraska R. R. Co. (17 Kan. 475), 298. Cumberland Teleph. & Teleg. Co. v. United Elec. Ry. Co. (93 Tenn. 492), 135, p. 265; 238. V. United Electric Ry. Co. (42 Fed. Rep. 273), 135, p. 259. Gumming v. Brooklyn City R. R. Co. (104 N. Y. 669), 229, 389. V. Brooklyn City R. R. Co. (38 Hun 362), 300, 320, 387, 388, 390. V. Brooklyn City R. R. Co. (109 N. Y. 695), 409. Cummings v. National Bank (101 U. S. 156), 274. V. "Worcester St. Ry. Co. (166 Mass. 220), 360. Cunningham v. Fair Haven Ry. Co. (72 Conn. 244), 292. V. Manhattan Ry. Co. (13 N. Y. Supp. 622), 208, 209. Curley v. Illinois Central R. R. Co. (40 La. Ann. 810), 301. Currie v. Atlantic City (66 N. J. L. 671), 18, 21, 22, 28. Currie v. Mendenhall (77 Minn. 179), 345. Curtis v. Louisville City Ry. Co. (94 Ky. 573), 364. v. Rochester & Syracuse R. R. Co. (18 N. Y. 534), 361. Gushing v. Boston (128 Mass. 330), 79. V. Metropolitan St. Ry. Co. (92 App. Div. (N. Y.) 510), 304. Guyler v. Decker (20 Hun 173), 383. Czezewzka v. Benton Ry. Co. (121 Mo. 201), 387. Dahl V. Milwaukee City Ry. Co. (62 Wis. 652), 389, 391. V. Milwaukee City Ry. Co. (65 Wis. 371), 387, 389. Dahlberg v. Minneapolis St. Ry. Co. (32 Minn. 404), 344. Dailey v. Nassau Elec. Ry. Co. (52 App. Div. (N. Y.) 272), 16. Dale v. Brooklyn^ City, Hunter's Point & Prospect Park R. R. Co. 1 Hun 146), 346. Daley v. Norwich & Worcester R. R. Co. (26 Conn. 591), 389. Dallas V. Dallas Consol. Ry. Co. (95 Tex. 268), 285, 286. Dallas City R. R. Co. v. Beeman (74 Tex. 291), 404. Dallas Ry. Co. v. Randolph (8 Tex. Civ. App. 213), 328. Dallas Trac. Ry. Co. v. Harley (10 Tex. Civ. App. 246), 299. Daly V. Detroit Ry. Co. (105 Mich. 193), 314. V. Milwaukee Elec. Ry. Co; (119 Wis. 398), 11. Dan V. Citizens' St. Ry. Co. (99 Tenn. 88), 387. V. Seattle Ry. Co. (5 Wash. 466), 336, 342. Dana v. Rock Creek Ry. Co. (7 App. Cas. (D. C.) 482), 77. Danbeck v. North Jersey Trac. Co. (57 N. J. L. 463), 365. Danger v. London St. Ry. Co. (30 Ontario Rep. 493), 316. Daniel v. New Jersey Trac. Co. (64 N. J. L. 603), 224. Daniels v. Comm. Ave. St. Ry. Co. (175 Mass. 518), 63. V. New York & New England R. R. Co. (28 N. E. Rep. 283), 292. Danville, Hazleton & Wilkesbarre R. R. Co. V. Commonwealth (78 Pa. St. 29), 79. xliv TABLE OF CASES. References are D'Arcv V Westchester Elec. Ry. Co. (82 App. Div. (N. Y.) 263), 361. Darnall v. Georgia Ry. Co. (134 Ga. DarnelV'v. State (48 Ark. 321), 44 Dartmoutli College v. Woodward (4 Wheat. 518), 38. Daughdrill v. Insurance Co. (di Ala. 91), 268. Dauphin & Lafayette Sts. Ry. Co. v. Kennerly (74 Ala. 584), 269. Davenport v. Brooklyn City R. R- Co. (100 N. Y. 632), 312. V. Stevenson (34 Iowa 225), 78. Davey v. Greenfield Ry. Co. (177 Mass. 106), 326. Davidge v. Common Council of Binghamton (62 App. Div. (N. Y.) 525), 37. ^ ^^ Davidson v. Denver Tram. Co. (4 Colo. App. 283), 315, 456. V. Schuylkill Trac. Co. (4 Pa. Super. Ct. 86), 378. Davies v. People's Ry. Co. (158 Mo. 1), 314. Davis V. Camden Ry. Co. (73 N. J. L. 415), 464. V. Mayor of New York (14 N. Y. 506), 3, 11, 12, 14, 17, 100. V. Old Colony R. R. (113 Mass. 258), 425. V. Ottawa Elec. Ry. Co. (28 Ont. Rep. 654), 372. V. Paducah Ry. Co. (113 Ky. 267), 332. V. Rosedale St. Ry. Co. (75 Tex. 382), 100. Davidson v. City of Portland (69 Me. 116), 365. V. State (4 Tex. App. 545), 220. Day V. Brooklyn City R. R. Co. (12 Hun 435), 365, 372. V. Forest City Ry. Co. (27 Ohio C. C. 60), 18, 20. V. Highland St. Ry. Co. (135 Mass. 113), 366, 416. V. Ogdensburgh & Lake Cham- plain R. R. Co. (107 N. Y. 129), 50, 184. V. Owen (5 Mich. 520), 325. Dayton v. City Ry. Co. (36 Amer. Law Rev. (Ohio) 461), 40, 61. v. City Ry. Co. (20 Ohio C. C. 736),- 135, p. 264. Dayton & Union Ry. Co. v. Dayton Trac. Co. (26 Ohio C. C. 1), 450. Dean v. Chicago Gen. Ry. Co. (64 111. App. 165), 233. V. Metropolitan Elevated R. R. Co. (119 N. Y. 540), 200. to Sections. Dean v. Third Ave. Ry. Co. (34 App. Div. (N. Y.) 220), 348. Dechene v. Greenfield Ry. Co. (188 Mass. 423), 458. . ^^ ^ ^ Decker v. Brooklyn Heights Ry. Co. (64 App. Div. (N.Y.) 430), 318. Dederlchs v. Salt Lake City Ry. Co. (13 Utah 34), 300. V Salt Lake City Ry. Co. (14 Utah 137), 407. Dedham & West Roxtaury Co. v. Metropolitan R. R. Co. (8 Allen 279), 37. DeDouglas v. Union Trac. Co. (198 Pa. St. 430), 406. De Geofroy v. Merchants' Bridge Term. Ry. Co. (179 Mo. 698), 185. De Grauw v. Long Is. Elec. R. Co. (43 App. Div. (N. Y.) 502; 163 N. Y. 597), 9, 431, 433, 468. De loia v. Metropolitan St. Ry. Co. (37 App. Div. (N. Y.) 455), 385. Deitsch v. Trans. St. Mary's Trac. Co. (155 Mich. 15), 303. Delafield v. Manhattan Ry. Co. (16 N. Y. Supp. 157), 208. Delaware, Lackawanna & Western R. R. Co. V. Napheys (90 Pa. St. 135), 361. V. Newark Pass. Ry. (16 N. J. L. J. 243), 109. V. Taffey (38 N. J. L. 525), 301. V. Trautwein (52 N. J. L. 169), 366, 375. Delaware Railroad Tax (18 Wall. 206), 282. Delphi, City of, v. Lowery (74 Ind. 520), 401. DeLucas v. New Orleans & Carroll- ton R. R. Co. (38 La. Ann. 930), 237 Delude V. St. Paul City Ry. Co. (55 Minn. 63), 413. Deneen v. Haughton Co. Ry. Co. (150 Mich. 235), 229. Denison & Sub. Ry. v. Denison Land & Invest. Co. (11 Tex. Civ. App. 157), 113. Denman v. Johnston (85 Mich. 387). 378. Dennis v. North Jersey St. Ry. Co. (64 N. J. L. 439), 315. Denver v. Denver City Cable Ry. Co. (22 Colo. 565), 223. Denver Circle R. R. Co. v. Nestor (15 Pac. Rep. 714), 78, 103. Denver City Irrigation & Water Co. V. Middaugh (21 Pac. Rep. 565), 102. TABLE OF CASES. xlv References are to Sections. Denver City Ry. Co. v. Denver (21 Colo. 350), 280. Denver Consol. Elec. Co. v. Simp- son (21 Colo. 371), 292. Denver Tramway Co. v. Cloud (6 Colo. App. 445), 237. V. Cobb (164 Fed. Rep. 41), 380. V. Crumbaugh (23 Colo. 362), 412. V. Martin (44 Colo. 324), 404. V. Mayor (20 Colo. 150), 15. V. Norton (141 Fed. Rep. 599), 303, 407. V. Reed (4 Colo. App. 500), 372. V. Reid (4 Colo. App. 53), 309. Denver TJ. & P. Ry. Co. v. Barsaloux (25 Pac. Rep. 165), 70, 93. Denver & R. G. R. R. Co. v. Ryan (28 Pac. Rep. 79), 381. Denver & S. F. R. R. Co. v. Domke (11 Colo. 247), 93. Denver & Swansea Ry. Co. v. Den- ver City Ry. Co. (2 Colo. 673), 3, 10, 11, 12, 67. Dern v. Salt Lake City R. R. Co. (19 Utah 46), 50. Derry v. Lowry (6 Phila. 30), 325. Deschamps v. Second & Third St. Pass. R. R. Co. (3 Phila. 279), 30. Des Moines St. Ry. Co. v. Des Moines (90 Iowa 770), 42. V. Des Moines (38 N. W. Rep. 496), 70. V. Des Moines B. G. St. Ry. Co. (73 Iowa 513), 6, 108. V. Des Moines (151 Fed. Rep. 854), 17. De Soucey v. Manhattan Ry. Co. (15 N. Y. Supp. 108), 216, 398. Detroit v. Detroit City Ry. Co. (184 U. S. 368), 9, 17, 233. V. Detroit R. R. Co. (134 Mich. 15), 245. V. Detroit City Ry. Co. (37 Mich. 558), 29, 43, 47, 79, 251. V. Detroit City Ry. Co. (76 Mich. 421), 5, 267, 268, 271, 273, 284. V. Detroit & Howell P:ank Road Co. (43 Mich. 140), 220, 270. V. Donovan (127 Mich. 604), 273. V. Elmwood Ry. Co. (51 N. W. Rep. 688), 231. V. Ft. "Wayne Ry. Co. (95 Mich. 456), 223. V. Wayne Circ. Judge (127 Mich. 604), 271. Detroit City Ry. Co. v. Mills (85 Mich. 634), 67, 69, 77, 83, 87, 96, 121. Detroit City St. Ry. Co. v. Detroit (110 Mich. 384), 14, 108. V. Detroit (125 Mich. 673), 267, 268, 272', 273. V. Detroit (171 U. S. 48), 13, 17. V. Detroit (64 Fed. Rep. 628), 14, 17. V. Detroit (124 Mich. 449), 422, 434. V. Guthard (51 Mich. 180), 270. Detroit, Ft. Wayne Ry. Co. v. Com- missioners (127 Mich. 219), 114. Detroit Plank; Rd. Co. v. Detroit Ry. Co. (103 Mich. 585), 449. Detroit Trust Co. v. Detroit F. & S. Ry. Co. (159 Mich. 442), 475. Detroit Sa Blrming. Plank Rd. v. Detroit Ry. Co. (103 Mich. 585), 51. Devlin v. Atlantic Ave. R. R. Co. (10 N. Y. Supp. 848), 360. V. Beacon Light Co. (192 Pa. St. 188), 292. V. Metropolitan St. Ry. Co. (17 App. Div. (N. Y.) 491), 414. Dewey v. Chicago Ry. Co. (184 111. 426), 106, 446. Dickert v. Salt Lake City Ry. Co. (20 Utah 394), 348. Dickinson v. Consolidated Trac. Co. (114 Fed. Rep. 232), 424. V. West End St. Ry. Co. (177 Mass. 365), 412. Dickman v. Railway Co. (41 Leg. Intel. 145), 338. Dickson v. Broadway & Seventh Ave. R. R. Co. (33 N. Y. Super. 330), 349. V. Brooklyn City & Newtown R. R. Co. (100 N. Y. 170), 331. Diebold v. Kentucky Trac. Co. (117 Ky. 146), 430, 431, 432, 440, 441, 468. Dieter v. Estill (95 Ga. 370), 3, 6. Dietrich v. Baltimore & Hall's Springs Ry. Co. (58 Md. 347), 336. Dillon V. Hudson Ry. Co. (73 N. H. 367), 472. Dimmey v. Wheeling & E. G. R. R. Co. (27 W. Va. 32), 329, 383. Dingledein v. Third Ave. R. R. Co. (37 N. Y. 575), 426. Dintru£f v. Rochester City & Brighton R. R. Co. (10 N. Y. Supp. 402), 296, 332. District of Columbia v. Armes (107 U. S. 519), 401. xlvi TABLE OF CASES. References are District of Columbia v. Metropoli- tan R. R. Co. (8 App. Cas. (D. C.) 322), 253, 257. V. Washington & Georgetown Ry. Co. (1 Mackey 361), 244, 253, 254, 257. V. Washington & Georgetown Ry. Co. (4 Mackey 214), 253, 254, 257. V. Waggaman (4 Mackey 328), 223. District Attorney v. West Chester (8 Lane. L. R. 236; 9 Pa. Co. Ct. Rep. 546), 127, 129. T. Lynn & Boston Ry. Co. (16 Gray 242), 28. Dix V. Ridge Ave. Pass. Ry. Co. (15 Pa. Super. Ct. 350), 378. Dixon V. Brooklyn City & Newtown R. R. Co. (100 N. Y. 170), 293, 294, 425. Dlabolo V. Manhattan Ry. Co. (8 N. Y. Supp. 334), 213, 328. Doane v. Lake St. Elev. Ry. Co. (165 111. 510), 185, 190. Dobbins v. West End St. Ry. Co. (168 Mass. 556), 291. Dodd V. Consol. Trac. Co. (57 N. J. L. 482), 91. Dodge V. Steamship Co. (148 Mass, 207), 326. Doggett V. Richmond & Danville R. R. Co. (78 N. C. 305), 380. Doherty v. Detroit Citizens' St. Ry. Co. (118 Mich. 209), 312. Dolan V. New York & Harlem R. R. (74 App. Div. (N. Y.) 434), 188. Doll V. Louisville Ry. Co. (128 S. W. Rep. 344), 380. Dominguez v. Orleans R. R. Co. (35 La. Ann. 751), 243. Domschke v. Metropolitan Elev. Ry Co. (74 Hun 442), 198. Donahoe v. Wabash, St. Louis & Pacific Ry. Co. (83 Mo. 560), 382. Donahue v. Brooklyn City R. R. Co. (14 N. Y. Supp. 639), 413. Donnaher v. State (8 S. & M. 649), 3. Donnely v. Brooklyn City R. R. Co. (109 N. Y. 16), 300, 393. Donohue v. St. Louis, I. M. & S. Ry. Co. (91 Mo. 357), 380. v. Syracuse Ry. Co. (11 App. Div. (N. Y.) 525), 290. Donovan v. Hartford - St. Ry. Co. (65 Conn. 201), 326. v. Lynn Ry. Co. (185 Mass. 533), 312. to Sections. Donovan v. Oakland Trans. Co. (102 Cal. 245), 290. Dooley v. Greenfield Ry. Co. (184 Mass. 204), 313. Doolin V. Omnibus Cable Co. (140 Cal. 369), 303. Doolittle V. Marsh (26 Mo. 371), 405. Doran v. Cedar Rapids Ry. Co. (117 Iowa 442), 298. Dorman v. Broadway & Seventh Ave. R. R. Co. (50 N. Y. Super. 106), 311. D'Oro V. Atlantic Ave. R. R. Co. (37 N. Y. St. Rep. 411), 313. Doster v. Charlotte St. Ry. Co. (117 N. C. 651), 298. Dougherty v. Missouri R. R. Co. (97 Mo. 647), 328, 404. V. Missouri R. R. Co. (81 Mo. 325), 348, 361. Douglas, Receiver, v. State, Orange & Newark Horse Car R. R. Co. (34 N. J. L. 485), 5, 268, 270. Dow V. Des Moines City Ry. Co. (126 N. W. Rep. 918), 304. Dowd V. Albany Ry. Co. (47 App. Div. (N. Y.) 202), 358. Downey v. Baton Rouge Co. (122 La. 481), 385. V. Hendrie (46 Mich. 498), 338. Downs V. New York & N. H. R. R. Co. (36 Conn. 287), 237. Doyle V. City of New York (58 App. Div. (N. Y.) 588), 255. V. Manhattan Ry. Co. (8 N. Y. Supp. 323; 24 Abb. N. C. 72), 195. V. Manhattan Ry. Co. (128 N. Y. 488), 196, 208. V. West End St. Ry. Co. (161 Mass. 533), 313. Drake v. Auburn City Ry. Co. (173 N. Y. 466), 415. V. Hudson River R. R. Co. (7 Barb. 508), 80, 91. Dressier v. Citizens' St. Ry. Co. (19 Ind. App. 383), 349. Drew V. Sixth Ave. R. R. Co. (26 N. Y. 49), 330, 389. V. Sixth Ave. R. R. Co. (1 Abbot 556), 330. Drolshagen v. Union Depot Ry. Co. (186 Mo. 258), 472. Drown v. New Eng. Telep. & Tel. Co. (80 Vt. 1), 363. V. Northern Ohio Trac. Co. (76 Ohio St. 234), 380. Drucker v. Manhattan Ry. Co. (106 N. Y. 157), 196. TABLE OF OASES. xlvii References are to Sections. Drucker v. Manhattan Ry. Co. (51 N. Y. Super. 429), 185, 209. Dry Dock E. B. & B. R. R. Co. v. Mayor (47 Hun 221), 230, 239. Dubiner v. City & Sub. Ry. Co. (44 Ore. 227), 385. DuBois Traction Pass. Ry. Co. v. Buffalo, Rochester & Pittsburg Ry. Co. (149 Pa. St. 1), 301. Dubose V. New Orleans Ry. Co. (132 La. Ann. 1029), 319. Dubuque Ry. Co. v. Ft. Dodge Ry. Co. (146 la. 666), 446, 450. Dugan V. Lyon (41 Pa. Super. 52), 456. Dulaney v. United Rys. Co. (104 Md. 423), 468. Dummer v. Milwaukee Ry. Co. (108 "Wis. 589), 312. Duncan v. Rome St. Ry. Co. (99 Ga. 98), 306. V. Union Ry. Co. (39 App. Div. (N. Y.) 497), 304, 457. Dunlay v. United Trac. Co. (18 Pa. Super. Ct. 206), 383. Dunmore v. Scranton Ry. Co. (34 Pa. Super. Ct. 294), 51. Dunn V. Cass Ave. & Fairground R. R. Co. (98 Mo. 652), 346. V. North East Blec. Ry. Co. (81 Mo. App. 42), 409. V. Old Colony Ry. Co. (186 Mass. 316), 315. Dupuis V. Montreal St. Ry. (Q. R. 16 K. B. 286), 349. Durfee y. Johnstown R. R. Co. (71 Hun 279), 425. V. Old Colony & Fall River R. R. Co. (5 Allen 230), 37. Dusenberry v. New York, Westches- ter & C. Trac. Co. (46 App. Div. (N. Y.) 267), 48. Dusenbury v. Mutual Telegraph Co. (11 Abb. N. C. 440), 128. V. North Hudson Ry. Co. (66 N. J. L. 44), 361. Dush v. Fitzhugh (2 Lea 307), 379. Duyckinck v. New York Elevated R. R. Co. (125 N. Y. 710), 206. Dwenger v. Chicago & Grand Trunk Ry. Co. (98 Ind. 153), 78. Dyer v. Brie R. R. Co. (71 N. Y. 228), 393. E Eachus v. Los Angeles Ry. Co. (103 Cal. 614), 92. Eads V. Metropolitan Ry. Co. (43 Mo. App. 536), 369, 372. Earle v. Consol. Trac. Co. (64 N. J. L. 573), 304. East Cleveland R. R. Co. v. Rose- crans (24 W. L. B. 220), 353. East End St. Ry. Co. v. Doyle (88 Tenn. 747), 86, 104. East Louisiana Ry. Co. v. New Or- leans (46 La. Ann. 526), 25. East Saginaw St. Ry. Co. v. Bohn (27 Mich. 500), 326, 351. East St. Louis Connecting Ry. C». v. East St. Louis Union Ry. Co. (108 111. 265), 113. East St. Louis Ry. Co. v. Belleville Ry. Co. (159 111. 544), 103. V. Burns (77 111. App. 529), 385. V. Louisville Co. (149 Fed. Rep. 159), 109. V. St. Louis (182 111. 433), 51. v. Wachtel (63 111. App. 181), 298. East Tennessee Teleph. Co. v. Car- mine (29 Ky. Law Rep. 479), 363. V. Chattanooga Electric St. Ry. Co. (unreported), 135, p. 255. V. Knoxville St. Ry. Co. (unre- ported), 135, p. 257. East Tennessee, V. & T. Ry. Co. v. Aikin (14 S. W. Rep. 1082), 379. V. Hull (88 Tenn. 33), 379. East Tennessee & W. N. C. R. R. Co. V. Winters (85 Tenn. 240), 395. Eastern Wisconsin Ry. Co. v. Hack- ett (135 Wis. 464), 29. V. Winnebago Trao. Co. (126 Wis, 179), 51. Easton Ry. Co., Petition of (15 Pa. Dist. Rep. 960), 433. Easton, South Easton & West End Pass. Ry. Co. v. Easton (133 Pa. St. 505), 5, 11, 12, 49, 72, 231. Eastwood V. La. Crosse Ry. Co. (94 Wis. 163), 298. Eaton V. Fitchburg R. R. Co. (129 Mass. 364), 301. Eckert v. Long Island R. R. Co. (43 N. Y. 502), 382. V. St. Louis Ry. Co. (13 Mo. App. 352), 403. Ecorse v. Jackson Ry. Co. (153 Mich. 393), 432, 440. Eddy V. Cedar Rapids Ry. Co. (98 Iowa 626), 314. V. Ottawa City Pass. Ry. Co. (31 Up. Can. Q. B. 569), 42, 292. Edgerton v. O'Neill (4 Kan. App. 73), 303. Edlund V. St. Paul City Ry. Co. (78 Minn. 434), 331. xlviii TABLE OP CASES. References are Edridge v. Rochester City & Brigh- ton R. R. Co. (54 Hun 194), 77, 82, 91, 100. Edwards v. Foote (129 Mich. 121), 383. V. Metropolitan St. Ry. Co. (127 S. W. Rep. 605), 380. Egan V. Forty-Second St., Manhat- tanville & St. Nicholas Ave. R. R. Co. (4 N. Y. Supp. 530), 292. Eggers V. Manhattan Ry. Co. (18 N. Y. Supp. 181), 205. Egner v. United Rys. Co. (98 Md. 397), 329. Ehret v. Camden Ry. Co. (61 N. J. Eq. 171), 83, 441. V. Camden & Trenton T. Co. (60 N. J. Eq. 246), 80. Ehrhard v. Metropolitan St. Ry. Co. (69 App. Div. (N. Y.) 124), 400. Ehrlsman v. East Harrisburg City Pass. Ry. Co. (150 Pa. St. 180; 24 Atl. Rep. 596), 303, 315. Ehrman v. Brooklyn City R. R. Co. (14 N. Y. Supp. 336), 387, 389. Eichels v. Evansville St. Ry. Co. (78 Ind. 261), 3, 14, 35, 82, 284. Eisenhuth v. Ackerson (105 Cal. 87), 28. Ekman v. Minneapolis St. Ry. Co. (34 Minn. 24), 389, 292. Eldert v. Long Island Elec. Ry. Co. (28 App. Div. (N. Y.) 451), 11, 24. Electric City Ry. Co. v. NiagarEV Falls Co. (95 N. Y. Supp. 73), 108. i Electric Ry. Co. v. City of Grand Rapids (84 Mich. 257; 47 N. W. Rep. 567), 29, 40, 127, 232. V. Carson (98 Ga. 652), 361. V. Lawson (101 Tenn. 406), 412. Electric Ry., L. & P. Co. v. Bell (26 Ohio C. C. 691), 132. Elevated Railroad Cases (3 Abh. N. C. 306), 187. Elfelt V. Stillwater St. Ry. Co. (53 Minn. 68), 83. Elizabethtown, M. & I. R. R. Co. v. Esterle (13 Bush. 667), 102. Elizabethtown Ry. Co. v. Ashland St. Ry. Co. (94 Ky. 478), 100. v. Ashland R. R. Co. (96 Ky. 347), 114, 432, 433, 449, 450. Elizabethtown & Paducah R. R. Co. V. Thompson (79 Ky. 52), 78. Elliott V. Fairhaven & Westville Ry. Co. (32 Conn. 579), 82, 100. to Sections. Ellis V. Bltzer (12 Ohio 89; 15 Am. Dec. 534). 406. v. Milwaukee City Ry. Co. (67 Wis. 135), 233, 237. Blmira v. Maple Ave. R. R. Co. (4 N. Y. Supp. 943), 51, 56. El Paso Elec. Ry. Co. v. Adkins (120 S. W. Rep. 218), 297. V. Tomlinson (115 S. W. Rep. 871), 319. Elsas V. Second Ave. R. R. Co. (56 Hun 161), 409. Ely V. St. Louis & Kansas City & N. Ry. Co. (77 Mo. 34), 402. Elyton Land Co. v. Mingea (89 Ala. 521), 292, 318, 393. Emerson v. Forest City Ry. Co. (28 Ohio C. C. 683), 18. Emigrant Mission v. Brooklyn Blev. R. R. Co. (20 App. Div. (N. Y.) 596), 200. English v. Trustees of Cincinnati Southern R. R. Co. (8 W. L. B. 15), 16. Ennis'v. Gray (87 Hun 355), 292. Eno v. Metropolitan Elevated Ry. Co. (56 N. Y. Super. 313; 8 N. Y. Supp. 197), 191. Eppendorf v. Brooklyn City & New- town R. R. Co. (69 N. Y. 195), 336. Erb v. Morasch (177 U. S. 585), 229. Erie City Pass. Ry. Co. v. Schuster (113 Pa. St. 412), 385, 389. Ernst V. Hudson River R. R. Co. (35 N. Y. 9), 301. Esler V. Camden Ry. Co. (71 N. J. L. 180), 298. Essex Co. Elec. Co. v. Kelly (57 N. J. L. 100), 415. Etherington v. Prospect Park & Coney Island R. R. (3o. (88 N. Y. 641), 309, 389. Eustis v. Wilton St. Ry. Co. (183 Mass. 586), 100. Evans v. Lake Shore & Michigan Southern R. R. Co. (14 L. R. A. 223), 301. Evansich v. Gulf City & S. F. R. R. Co. (57 Tex. 126), 292. Evanston Elec. Ilium. Co. v. Koch- ersperger (175 111. 26), 269. Evansville St. Ry. Co. v. Meadows (13 Ind. App. 155), 365. Everett v. Los Angeles Consol. Elec. Ry. Co. (115 Cal. 105), 315. Ewing V. Atlantic Ave. R. R. Co. (11 N. Y. Supp. 626), 312. V. Pittsburg, C, C. & St. Louis Ry. Co. (23 Atl. Rep. 340), 408. TABLE OF CASES. xlix References are Excelsior v. Minneapolis Ry. Co. , (108 Minn. 407), 451. Ex parte Frank (5i Cal. COG), 279. Jennings (CO Ohio St. 319), 399. Schoepf (74 Ohio Et. 1), 399. Eyre v. Jacob (14 Giatt. 422), 274. Fair Hiven Ry. Co. v. New Haven (75 Conn. 442), 257. Fair Haven & W. Ry. Co. v. New Haven (74 Conn. 102), 29. Fairbanl s v. Bangor Ry. Co. (95 Me. 78), 315, 45G. Falrchild v. City of St. Louis (97 Mo. 85), IG. Fallan v. West End St. Ry. (171 Mass. 249), 1. Fallon V. Central Park, North & East River R. R. Co. (G4 N. Y. 13), 387, 389. Falner v. Brooklyn He'ghts Ry. Co. (8G App. Div. (N. Y.) 458), 2.4. Fancher v. Fonda Ry. Co. (97 N. Y. Supp. CCC), 45G. Panning v. Ostorne (102 N. Y. 441), 3, 8, 11, 12, 51. v. Osfcorne (34 Hun 121), 77, 91, 100. Farley v. Philadelphia Traction Co. (132 Pa. St. 58), 3C1. Farmer v. Finley Et. Ry. Co. (GO Ohio Et. 3G), 133. V. Myles (lOG La. Ann. 333), 433. Farmers' Loan & Trus. Co. v. Bor- ough of Ansonia (Gl Conn. 7G), 242, 254. V. San Diego Co. (49 Fed. Rep. 188), 423. Farmers' Nat'l Bank v. Scctt (19 Tex. Cv. App. 22), 422. Farmers' Turnpike Road v. Coven- try (10 John. 389), 34. Farnsworth v. Minnesota & Pa-ific R. R. Co. (92 U. S. 49), 50, 184. Farnum v. Haverhill Ry. Co. (178 Mass. 300), 445. Farrar v. MidlaTd Elec. Co. (191 Mo. App. 140), 443. Farrell v. Houston, West Siie & Pavonia Ry. Co. (4 N. Y. Supp. 597), 331, 342. V. Winchester A^e. R. R. Co. (01 Conn. 127), 127. Farrer v. St. Louis (80 Mo. 379), 244. Farrin^ton v. Tennessee (95 U. S. 679), 4, 274. to Sections. Farris v. Cass Ave. & Fair Ground Ry. Co. (80 Mo. 325; Affg. 8 Mo. App. 588), 310, 385, 387, 388. Fash V. Third Ave. St. R. R. Co. (1 Daly 148), 292. Fath V. Tower Grove & Lafayette Ry. Co. (105 Mo. 537), 22G, 309. Pauche v. Rome St. R. R. Co. (84 Ga. 233), 100. Faul v. North Je'sey St. Ry. Co. (70 N. J. L. 795), 328. Faust V. Pass. Ry. Co. (3 Phila. 1G4), 12, 13, 82, 91, 94. Favre v. Louisville & Nashville R. R. Co. (IG S. W. Rep. 370). 344, 404. Fayetteville Ry. Co. v. Aherdesn Ry. Co. (142 N. C. 423), 432, 433, 44G, 448, 473. Feary v. Metropolilan St. Ry. Co. (1C2 Mo. 75), 332. Federal St. & Pleasant Vall;y R. R. Co. V. Gibson (9G Pa. St. 83), 3G1. Feeney v. Brooklyn City R. R. Co. (3G Hun 197), 372. Feitel v. Middlesex R. R. Co. (109 Mass. 398), 3G1, 3CG, 425. Fell V. Not them Piclfic R. R. Co. (44 Fed. Rep. 248), 410. Fenneman v. Holden (22 Atl. Rep. 1049), 379. Penner v. Wilkes-Barre Trac. Co. (202 Pa. St. 3G5), 305. Pennig v. North Jersey St. Ry. Co. (G4 N. J. L. 715), 349. Fenton v. Second Ave. R. R. Co. (59 Hun 99; 9 N. Y. Supp. 1G2), 30C, 311, 317. V. Second Ave. R. R. Co. (12S N. Y. C25), 303, 311, 312, 385. Ferguson v. Covin?ton & Cincinnati Elev. Ry. Co. (22 Ky. Law Rep. 371), 24. V. Old Colony St. Ry. Co. (204 Ma;s. 340), 315. V. Philadelphia Tra"tion Co. (9 Pa. Co. Ct. Rep. 147), 314. V. Sherman (IIG Cal. 1G9), 1,432. Pernandfs v. Sacramento City Ry. Co. (52 Cal. 45). 378. Ferros v. Interurtan Ry. Co. (89 App. Div. (N. Y.) 3C1), 336. Ferry v. Manhattan Ry. Co. (54 N. Y. Pup-r. 325), 21 G. Fertilizing Co. v. Hyde Park (97 U. S. 659), 238. Fettrlfh V. Dickinson (22 How. Pr. 248), 303. Fewin. 468. Gay V. Es-sex St. Ry. Co. (159 Mass. 238), 365. Gay V. Mutual Union Telephone Co. (12 Mo. App. 485), 128. Geddes v. Metronolitan R. R. Co. (103 Mass. 391). 348. TABLE OF CASES. liii References are to Sections. Geiselman v. Scott (25 Ohio St. 86), 379. Geitz V. Milwaukee City Ry. Co. (72 Wis. 307), 341. Geleta v. Buffalo Elec. Ry. Co. (88 App. Div. (N. Y.) 372), 316. General Elec. Co. v. Transit Equip- ment Co. (57 N. J. Eq. 460), 423. General Elec. Ry. Co. v. Chicago City Ry. Co. (66 111. App. 3G2), 114. V. Chicago, I. & L. Ry. Co. (107 Fed. Rep. 771), 11. V. Chicago Ry. Co. (98 Fed. Rep. 907), 100. V. Chicago & W. I. R. R. Co. (184 111. 588), 83, 109. Geneva Ry. Co. v. New York Cen- tral R. R. Co. (163 N. Y. 228), 435, 450. Geneva & Waterloo Ry. Co. v. N. Y. C. & H. R. R. Co. (163 N. Y. 228), 19, 28, 3G. Georgetown Trac. Co. v. Mulhol- land (76 S. W. Rep. 148), 441, 443, 453. Georgia Pacific Ry. Co. v. Hughes (87 Ala. 610), 362, 363, 393. V. Underwood (90 Ala. 49), 344. Georgia R. R. & Banking Co. v. Smith (128 U. S. 174), 232. Germantown Pass. Ry. Co. v. Brophy (105 Pa. St. 38), 331, 344. v. Citizens' Pass. Ry. Co. (151 Pa. St. 138), 113. V. Walling (97 Pa. St. 55), 341. German-American Ins. Co. v. New York 6. & E. L. H. & P. Co. (103 App. Div. (N. Y. 301), 134. Gerrard v. La Crosse City Ry. Co. (113 Wis. 258), 235. Gettysburg B. Assn. v. Gettysburg Ry. Co. (2 Pa. Dist. Rep 659; 13 Pa. Co. Ct. Rep. 337), 7, 433. Ghee v. Northern Union Gas Co. (158 N. Y. 510), 3. Gibbs V. Chicago M. & St. P. R. R. Co. (26 Minn. 427), 298. Giest V. Detroit City Ry. Co. (51 N. W. Rep. 1112), 403. Gilbert v. Third Ave. R. R. Co. (54 N. Y. Super. 270), 345, 348. Gillam v. Sioux City & St. Paul R. R. Co. (26 Minn. 268), 220. Gillespie v. Coney Island & Brook- lyn R. R. Co. (16 N. Y. Supp. 850). 359. Gillespie v. St. Louis, Kansas City & N. Ry. Co. (G Mo. App. 554), 361. Gilligan v. New York & Harlem R. R. Co. (1 E. D. Smith 453), 409. Gilllland v. Middlesex Trac. Co. (67 N. J. L. 542), 458. Gilmore v. City of Utica (121 N. Y. 561), 241, 259, 2C1. v. Seattle Ry. Co. (29 Wash. 150), 326. Gilpatrick v. Hunter (24 Me. 518; 41 Am. Dec. 370), 406. Gilson V. Jackson County Horse Ry. Co. (76 Mo. 282), 327, 328, 331. Gilton V. Hestonvllle, M. & F. Pass. Ry. Co. (166 Pa. St. 460), 292, 332. Ginna v. Second Ave. R. R. Co. (67 N. Y. 596), 338. Giordans v. Manhattan Ry. Co. (9 N. Y. S'upp. 258), 187. Giraldo v. Coney Island & Brighton R. R. Co. C16 N. Y. Supp. 774), 385. Girard College Pass. Ry. Co. v. Middleton (3 W. N. C. 486), 323. V. Ihirteenth & Fifteenth Sts. & Union Pass. Ry. Co. (7 Phila. 620), 51, 61. Girandi v. Elec. Imp. Co. (107 Cal. 120), 292. Glaessner v. Anheuser-Busch Brew- ing Ass'c'n (100 Mo. 508), 8, 12. Glassey v. Hestonville, Mantua & Fairmount Pass. Ry. Co. (57 Pa. St. 172), 387, 390. Glidden v. Cincinnati (30 W. L. B. 213), 12, 24. Gloninger v. Pittsburgh & Con- nellsville R. R. Co. (139 Pa. St. 13; 21 Atl. Rep. 211), 63, 423. Glover v. Manhattan Ry. Co. (51 N. Y. Super. 1), 187, 190, 191. Goddsrd v. Chicago Fy. Co. (202 III. 3G2; 104 111. App. 533), 435, 440, 441. V. Grand Trunk Ry. Co. (57 Me. 202), 372. Godfrey v. Streamer Ry. Co. (56 111. App. 378), 133. Goelet V. Metropolitan Transit Co. (48 Hun 520). 184. Goines v. McCandless (4 Phila. 255), 325. Golden v. Clinton (54 Mo. App. 100), 18. liv TABI.E OF cases: Keferences are Goldrlck v. Union Ry. Co. (20 R. I I. 128), 303. ! Goldman v. Milwaukee Ry. Co. (123 Wis. 168), 315. Goll V. Manhattan Ry. Co. (57 N. Y. Super. 74), 211. Goodloe y. Metropolitan Ry. Co. (120 Mo. App. 194), 462, 467. Goodkind v. Metropolitan St. Ry. Co. (93 App'. Div. (N. Y.) 153), 350. Gordon v. Grand St. & Newton R. R. Co. (40 Barb. 546), 309, 326, 334. V. Kings Co. Elec. Ry. Co. (23 App, Div. (N. Y.) 51), 208. V. West End St. Ry. Co. (175 Mass. 181), 348. Gorman v. Louisville Ry. Co. (24 Ky. Law Rep. 1938), 310. Gosa V. Milwaukee Trac. Co. (134 Wis. 369), 442, 446, 447. Goshorn v. Smith (96 Pa. St. 435), 323. Gothard v. Alabama Great South- ern R. R. Co. (67 Ala. 114), 380. Government St. R. R. Co. v. Hanlon (53 Ala. 70), 303. 382, 385, 389. Covin V. Chicago (132 Fed. Rep. 848), 6, 17, 43, 66. Grace v. St. Louis Ry. Co. (156 Mo. 295), 328. Graham v. Columbus & Indianapolis Cent. Ry. Co. (27 Ind. 260), 99. V. Consol. Tract. Co. (64 N. J. L. 10), 310. Granby Mining & Smelting Co. v. Richards (95 Mo. 106), 38. Grand Ave. Ry. Co. v. Citizens' Ry. Co. (148 Mo. 665), 116. V. Lindell Ry. Co. (148 Mo. 637), 116. V. People's Ry. Co. (132 Mo. 34), 116. Grand Rapids Ry. Co. v. Heisel (38 Mich. 62), 11, 12, 82. Grand Rapids & Indiana R. R. Co. V. Heisel (47 Mich. 393), 11, 12, 78. Grand Trunk Ry. Co. v. Ives (144 TJ. S. 408), 359. Grant v. Baker (12 Ore. 329), 381. V. Davenport (36 Iowa 396), 267. Gratz V. Highland Scenic Ry. (165 Mo. 211), 45, 99, 448. Graven v. McLeod (92 Fed. Rep. 846), 333, 346. Graves v. City & Suburban Tel. Ass'n (132 Fed. Rep. 387), 363. to Sections. Graville v. Manhattan Ry. Co. (13 Daly 32), 216, 217. V. Manhattan Ry. Co. (105 N. Y. 525), 216, 217. Gray v. Cincinnati Southern R. R. Co. (11 Fed. Rep. 683), 325. V. Dallas Tr. Co. (13 Tex. Civ. App. 158), 18. V. First Division St. Paul & Pacific R. R. Co. (13 Minn. 315), 78. V. Ft. Pitt Tract. Co. (198 Pa. St. 184), 346. V. Manhattan Ry. Co. (16 Daly 510), 195. V. Manhattan Ry. Co. (128 N. Y. 499), 208, 209. V. New York Elev. R. R. Co. (43 App. Div. (N. Y.) 104), 195. V. Rochester City & Brighton R. R. Co. (15 N. Y. Supp. 927), 331. V. Second Ave. R. R. Co. (34 N. Y. Super. 519), 294. V. Second Ave. R. R. Co. (65 N. Y. 561), 294. V. St. Paul City Ry. Co. (87 Minn. 280), 226. V. Washington Ry. Co. (30 Wash. 665), 231. Great Western R. R. Co. v. Decatur (33 111. 381), 220. Green v. City of Bridgeton (9 Cent. Law J. 206), 325. V. City & Suburban Ry. Co. (78 Md. 294), 92, 441, 442, 443, 449. Green & Coates St. Pass Ry. Co. v. Bresmer (97 Pa. St. 103), 414. V. Moore (64 Pa. St. 79), 30. V. Woodland Ave. Ry. Co. (62 Ohio St. 67), 429. V. N. Y. Cent. & Hudson River R. R. Co. (65 How. Pr. 154), 71, 185. v. Portland (32 Me. 431), 16. Greenberg v. Third Ave. R. R. Co. (35 App. Div. (N. Y.) 619), 310. Greenfield v. Turner's Falls St. Ry. Co. (187 Mass. 352), 271, 452. Greenough v. Greenough (11 Pa. St. 489), 44. Greenwood v. Freight Co. (105 U. S. 13), 38, 244. V. Metropolitan Elevated R. R. Co. (3 N. Y. St. Rep. 561), 186. Gress v. Braddock Ry. Co. (14 Pa. Super. Ct. 87), 320. Grey v. New York Trac. Co. (56 N. J. Eq. 463), 47, 434, 435. Griffith V. Denver Tramway Co. (14 Colo. App. 504), 31L V. Utica & Mohawk R. R. Co. (17 N. Y. Supp. 692), 342. TABLE OF CASES. Iv References are to Sections. Grimes v. Pennsylvania R. R. Co. (36 Fed. Rep. 72), 326, 334. \ Grisim v. Milwaukee City Ry. Co. ' (84 Wis. 19), 410. Griswold v. Bay City (35 Mich. 452), 75. Griveaud v. St. Louis Cable & ! Western Ry. Co. (33 Mo. App. 458), 292. Groll V. Prospect Park & Coney Island R. R. Co. (4 N. Y. Supp. 80), 334. Grosse Pointe v. Detroit Ry. Co. (130 Mich. 363), 436. Grotsch V. Steinway Ry. Co. (19 App. Div. (N. Y.) 130), 332. Groves v. Louisville Ry. Co. (109 Ky. 76), 243. V. Washington W. P. Co. (44 Wash. 675), 292. Guaranty Trust Co. v. Atlantic Coast Ry. Co. (138 Fed. Rep. 517), 475. ' V. Galveston City Ry. Co. (107 Fed. Rep. 311), 423. Guggenheim v. Lake Shore & M. S. Ry. Co. (66 Mich. 150), 301. Guiney v. South Elec. Ry. Co. (167 Mo. 595), 318. Gulf City St. Ry. Co. v. Galveston Ry. Co. (65 Tex. 502), 108. V. Gulf City St. Ry. Co. (63 Tex. 529), 3, 46, 47. Gulf, Colorado & Santa Fe Ry. Co. V. Compton (75 Tex. 667), 402. V. McGowan (73 Tex. 355), 402. ' V. McWhirter (77 Tex. 356; 14 S. W. Rep. 26), 292, 389. V. Walker (70 Tex. 126), 303. Gulf, H. & S. A. Ry. Co. v. Lempe (59 Tex. 19), 413. Gumb V. Twenty-third St. Ry. Co, , (58 N. Y. Super. 1), 321, 323. V. Twenty-third St. Ry. Co. (53 N. Y. Super. 466), 303. V. Twenty-third St. Ry. Co. (114 N. Y. 411), 409. Gunn V. Cambridge R. R. Co. (144 Mass. 430), 396. Gunther v. Lee (45 Md. 60; 24 Am. Rep. 504), 407. Gyger v. Philadelphia City Pass. Ry. Co. (136 Pa. St. 96), 1, 64. H Haas V. Chester St. Ry. Co. (202 Pa. St. 145), 315. Hachhalter v. Manhattan Ry. Co. i (31 N. Y. St. Rep. 112), 187. j Hackett v. Western Union Tele- graph Co. (80 Wis. 187), 394. Hadencamp v. Second Ave. R. R. Co. (1 Sweeny 490), 338. Hagan v. Philadelphia & Gray's Ferry Ry. Co. (15 Phila. 278), 337. Hagenlocher v. Coney Island & Brooklyn R. R. Co. (99 N. Y. 136), 397. Haight V. Hamilton St. Ry. Co. (29 Ontario Rep. 279), 310. V. Railroad Company (6 Wall. 15), 274. Haines v. Cape May (50 N. J. L. 55), 223. V. Twenty-Second St. & Alle- gheny Ave. Pass. Ry. Co. (1 Dist. Rep. 506), 127. Halahan v. Washington & George- town R. R. Co. (8 Mackey 316), 336. Halifax v. City Pass. Ry. Co. (1 Russ. 319), 261. Halifax St. Ry. Co. v. Joyce (17 Can. Sup. Ct. 709), 292. Hall V. DeCuir (95 U. S. 485), 325. V. Ripley (119 Mass. 135), 359. Halladay v. Detroit Ry. Co. (155 Mich. 436), 432, 444, 445. Hallahan v. Metropolitan St. Ry. Co. (73 App. Div. (N. Y.) 164), 331. Halpin v. Third Avenue R. R. Co. (40 N. Y. Super. 175), 346. Halsey v. Rapid Transit St. Ry. Co. (47 N. J. Eq. 380), 34, 76, 83, 127, 130. Haman v. Omaha Horse Ry. Co. (35 Neb. 74), 372. Hamilton v. Great Falls St. Ry. Co. (17 Mont. 334), 328, 329. V. Manhattan Ry. Co. (9 N. Y. Supp. 313), 177. V. Metropolitan Ry. Co. (58 N. Y. Super. 17), 206. V. New York & Harlem R. R. Co. (9 Paige Ch. 171), 11, 50, 63, 91. V. Third Ave. R. R. Co. (53 N. Y. 25), 237, 410. V. Third Ave. R. R. Co. (13 Abb. Pr. N. S. 318; 35 N. Y. 118), 372, 410. V. West End St. Ry. Co. (163 Mass. 199), 360. Hamilton G. & C. Trac. Co. v. Ham- ilton & L. Elec. T. Co. (69 Ohio St. 402), 109, 122. v. Parish (67 Ohio St. 181), 18, 438, 446. Hamilton Ry. Co. v. Hamilton Co. 69 Ohio St. 402), 113, Ivi TABLE OI" CASES. References are to Sections. Hamilton St. Ry. & Electric Co. v. Hamilton & Lindenwall Electric Co. (5 Ohio C. C. 319), 49, 50, 123. Hammond Ry. Co. v. Eads (32 Ind. App. 249), 298. Hamtramck v. Rapid Ry. Co. (122 Mien. 472), 6, 47. Hanlon v. Milwaukee Ry. Co. (118 Wis. 210), 318. V. South Boston Horse R. R. Co. (129 Mass. 310), 229, 359. Hanna v. Nassau Elec. Ry. Co. (18 App. Div. (N. Y.) 137), 3C7. Hannah v. Metropolitan St. Ry. Co. (81 Mo. App. 78), 1, 430, 432. Hannon v. Boston Blec. Ry. Co. (182 Mass. 425), 215. Hannum v. Media M. A. & C. Elec. Ry. Co. (200 Pa. St. 44), 28. Hanover R. R. Co. v. Coyle (55 Pa. St. 3JG), 399. Hanrahan v. Manhattan Ry. Co. (53 Hun 420), 214. Hansberger v. Sedalia Ry. Co. (82 Mo. 5C6), 33G, 404. Hanscom v. Minneapolis St. Ry. Co. (53 Minn. 119), 372. Hansen v. North Jersey St. Ry. Co. (64 N. J. L,. C8G), 374. Hanfon v. Manchester Ry. Co. (73 N. H. 395), 380. V. Urbana Ry. Co. (75 III. App. 474), 372. Harbison v. Metropol'tai St. Rv. Co. (9 App. Cas. (D. C.) 9), 341. Hardv v. Milwaukee St. Ry. Co. (89 Wis. 183), 409. Hargis v. St. Louis. A. & T. Ry. Co f75 Tex. 19). 298. Harkins v. Pittsburg Trac. Co. (173 Pa. St. 149), 306. Harlem Br'dge. Morrisan'a & Ford- ham R. R. Co. V. So'ithern Boulevard R. R. Co. (41 Hun 553). 7. Harlev v. We^t End St. Ry. Co (180 Mass. ,''70). 315. Harmon v. Railroad Co. (87 Tenn CT"), 102. V. WashiiiP'tm & Gpnra:etiwn R. P. Co. (7 Mackpy 22=:). S49. 378. V. Warhinrton »- Oeorp-etowti R B. Co. (17 Wash. Law Rep. 4''G), 345. Harp^ain v. NortTierri Ohfo Trac. Cn fOg n^\c C. r,, 2';St. SI"?. V. Nort^wpstprn Trac. Co. (4 Ohio C. C. 257). 315. HarpT V. Ba'tn. C'ty Pass. Ry. Co. (85 Md. 509), 69. Harriman v. Reading St. By. Co. (173 Mass. 28), 3G1. Harrington v. Los Angeles Ry. Co. (140 Cal. 514), 378. V. St. Paul & Sioux City R. R. Co. (17 Hun 215), 78, 99. Harris v. Detroit City Ry. Co. (76 Mich. 227), 397. Harrisburg v. Harrisburg Ry. Co. (1 Pearson 298), 3, 13, 243. Harrisburg City Pass. R. R. Co. v. Harrisburg (7 Pa. Co. Ct. Rep. 58t), 72, 231. Harrisburg Co. v. Harrisburg Ry. Co. (177 Pa. St. 585), 114. Harrison v. Detroit, Y. A. A. & J. Ry. Co. (157 Mich. 78), 415. v. Fink (42 Fed. Rep. 787), 372. v. Mt. Auburn Cable Ry. Co. (17 W. L. B. 265), 24, C9, 84. V. Pike (4 W. I. B. 156), 101. V. Sutter St. Ry. Co. (116 Cal. 156), 229. V. Sutter St. Ry. Co. (134 Cal. 549), 3G1. Harrold v. New York Elevated R. R. Co. (24 Hun 184), 213. Harroun v. Brush Elec. L. Co. (12 App. Div. (N. Y.) 126), 415. Hart V. Benton-Bellefontaine Ry. Co. (7 Mo. App. 44G). 427. V. Brooklyn Elev. R. R. Co. (89 Hun 259), 17L V. Metropol tan Elevated Ry. Co. (15 Daly 391), 200. v. New Orleans & Carrol! ton R. R. Co. (1 Rob. 178), 425. V. New York & Carro'ltou R. R. Co. (4 La. Ann. 2G1), 425. V. West a^de R. R. Co. (86 Wis. 483), 3G5. Hartfleld v. Roper (21 Wend. 615), 389. Hartford v. Harford St. Ry. Co. (73 Conn. 327), 56. v. Hartford St. Ry. Co. (75 Conn. 471), 242. Hartraan v. Greenhow (102 U. S. 084), 274. Hart-^ptt V. Bleecker St. &. FuHon Ferry R. R. Co. (49 N. Y. Super. 185). 312. Hartshorn v. Illinois Valley Trac. Co. (210 III. C09>, 433, 434. 4-16. Hartung v. North Ch'ra-'o Pt. Ry. Co. (102 111. App. 470), 316. Harvpv V. Aurora <& Geneva Ry. Co. (174 V\. 295), 103, 433, 446. V. ^I'rora & G. Ry. Co. (186 111. 283), 28. 40. TABLE OF CASES. Ivii Beferences are to Sections. Haselton v. Portsmouth Ry. Co. (71 N. H. 589), 334. Haskell v . U.nver Ry. Co. (23 Colo. GU), lUU. Haskins v. Cincinnati Consolidated R. R. Co. (4 W. L. B. 1126), 43. Hass V. Ctiicago & N. W. R. R. Co. (41 Wis. 44), 220. Hatch V. Vermont Central R. R. Co. (25 Vt. 49), 78. Hatcher v. McDermott (103 Md. 78), 45G. Hattersly v. Waterville (26 Ohio C. C. 226), 39. Hatzung v. Syracuse (92 Hun 203), 15. Hawkins v. Front St. Cable Ry. Co. (3 Wash. 592), 342. Hawks V. C'ty of Northampton (121 Mass. 10), 292. Hawthorne v. Calef (2 Wall. 10), 38. Hayes v. Chicago Teleph. Co. (218 111. 414). SC3. 400. V. Forty-Second St. & Grand St. Ferrv R. R. Co. (97 N. Y. 259), 338, 350. Haynes v. Ralpia;h Gaslight Co. (114 N. C. 20'?), 292. V. Thomas (7 Ind. 38), 185. Hays V. GiinesVle Pt. Rv. Co. (70 Tex. C02). 305. 3CG, 380, 403. Hay7el v. Coi"mb'"a Rv. Co. (19 A-Dv. Ca?. CD. C.) 359) 413. HaylPtt V. Citv of Mt. Vernon (33 Iowa 2'91. 2C7. Hazel V. Peonie's Pass. Ry. Co. (132 Pa. St. 96), 298. Heacopk y. Sherman (14 Wend. 58), 405. Head v. Georg'a Pacific Ry. Co. (79 Ga. 358; 7 S. E. Rep. 217), 410. Healey v. City Pass. R. R. Co. (28 Ohio St. 23), 367, 371, 372. V. Dry Dock, East Broadway & Battery R. R. Co. (4G N. Y. Super. 473), 378, 380. Heap V. Day (34 W. R. 637; 51 J. P. 213), 304. Heard v. Brooklyn (60 N. Y. 242), 99. V. Georg'a R. R. Co. (1 Inter-St. Com. Rep. 428), 325. V. Geors^'a R. R. Co. (3 Inter-St. Com. Pep. 111). 325. Hearn v. St. Charles St. R. R. Co. (34 La. Ann. IGO), 303, 305, 306, 307. 308, 310. Heath v. DesMolnes & St. Louis Ry. Co. (61 Iowa 11), 8, 34. Heckrott v. Buffalo St. Ry. Co. (13 Am. Law Rec. 295), 338, 340. Heddels v. Chicago & Northwestern R. R. Co. (74 Wis. 240), 301. Hedin v. City & Suburban Ry. Co. (26 Ore. 155), 387. Heer Dry Goods Co. v. Citizens' Ry. Co. (41 Mo. App. 63), 77, 91. Heerwagen v. Crosstown St. Ry. Co. (90 App. Div. (N. Y.) 277), 6, 271, 273. HefEron v. Detroit City Ry. Co. (52 N. W. Rep. 802), 237. Hegan v. Eighth Ave. R. R. Co. (15 N. Y. 380), 302, 303. Heilman v. Lebanon & Annville St. Ry. Co. (180 Pa. St. 627), 100, 443, (145 Pa. St. 23), 83, 445. Heimberg v. Manhattan Ry. Co. (152 N. Y. 352), 156. Heimburg v. Manhattan Ry. Co. (162 N. Y. 358), 24. Heinel v. People's Ry. Co. (6 Penn. (Del.) 428), 303, 380, 395. Heintz v. St. Louis Trans. Co. (115 Mo. App. 667), 320. Heitman v. Pacific Elec. Ry. Co. (10 Cal. App. 397), 450. Heland v. City of Lowell (3 Allen 407), 228. Helber v. Spokane St. Ry. Co. (22 Wash. 319), 315. Henderson v. Central Pass Ry. Co. (21 Fed. Rep. 358), 51. V. Citizens' St. Ry. Co. (IIG Mich. 3G8), 385. V. Greenfield St. Ry. Co. (172 Mass. 542), 298. V. New York Central R. R. Co. (78 N. Y. 423), 78, 177, 195. V. Ogden City Ry. Co. (7 Utah 199), 2, 6, 108. Henderson Ry. Co. v. Dechamp (95 Ky. 219), 9L Hendrie v. Kalthoff (48 Mich. 306), 267 Henkel V. Detroit (49 Mich. 249), 76. Henne v. People's By. Co. (1 Pa. Super. Ct. 311). 387. Hennessey v. Brooirlyn Citv Ry. Co. (6 App. Div. (N. Y.) 20C), 389. Henning v. Hudson Valley Rv. Co. (90 App. Div. (N. Y.) 492), 100. Henrv v. Grant St. Ry. Co. (24 Wash. 24G), 331. Hentz V. Long Island R. R. Co. (13 Parb. 646), 78. Herbich v. North Jorsey Ry. Co. (07 N. J. L. 574). 330. Herman v. ManhPttan Ry. Co. (58 App. Div. (N. Y.) 369), 193. Herzosr v. Municipal Flee. It. Co. (89 App. Div. (N. Y.) 569), 134. Iviii TABLE OF CASES. Keferences r Herzog v. New York Elev. R. B Co. (151 N. Y. 665; 76 Hun 486) 156, 198, 201. Hess V. Lowery (122 Ind. 225), 407. Hesse v. Meridian Tram. Co. (75 Conn. 571), 341. Hestonville, Mantua & Pairmount Pass Ry. Co. v. Biddle (16 Atl. Rep. 488), 365. V. Kelly (102 Pa. St. 115), 305. V. Philadelphia (89 Pa. St. 210), 1, 51. Hestonville Pass. Ry. Co. v. Con- nell (88 Pa. St. 520), 333, 385. V. Kelley (6 Out. 115), 333. Heucke v. Milwaukee City Ry. Co. (69 Wis. 401), 305, 306, 307, 328. 402. Hewett V. New Orleans & Carrollton R. R. Co. (28 La. Ann. 685), 417. Heying v. United Rys. Co. (100 Md. 281), 311. Hibbard v. New York & Erie R. R. Co. (15 N. Y. 455), 237. Hibbs V. C. & S. W. R. R. Co. (39 Iowa 340), 99. Higgins V. Brooklyn, Queens Co. & Sub. R. R. Co. (54 App. Div. (N. Y.) 69), 255. V. Hannibal & St. Jos. R. R. Co. (36 Mo. 418), 227. V. St. Louis & Suburban Ry. Co. (197 Mo. 300), 472. V. Watervliet Turnpike R. R. Co. (46 N. Y. 23), 367, 371, 372. Highland Ave. & Belt St. Ry. Co. v. Birmingham Ry. & Elec. Co. (113 Ala. 239), 110. V. Burt (92 Ala. 291), 349. V. Donovan (10 So. Rep. 189), 355. V. Miller (120 Ala. 535), 412, 413. v. Robinson (125 Ala. 483), 372. V. Sampson (112 Ala. 425), 456. V. Walters (91 Ala. 435), 413. V. Winn. (93 Ala. 306), 329, 337, 372, 404. Highland Ave. & Birmingham St. Ry. Co. V. Birmingham Union Ry. Co. (9 So. Rep. 568), 110. V. Donovan (10 So. Rep. 139), 338. Hill V. Higdon (5 Ohio St. 243), 267. V. Ninth Ave. R. R. Co. (109 N. Y. 239), 359, 361. V. Rome St. Ry. Co. (101 Ga. 66), 298. V. Town of New Haven (37 Vt. 501), 381. V. Portland & Rochester R. R. Co. (55 Me. 438), 298. Hilts V. Foote (125 Mich. 241), 393. e to Sections. Hinchey v. Manhattan Ry. Co. (49 N. Y. Super. 406), 211. Hinchman v. Philada. & West Ches- ter T. Road (160 Pa. St. 150). 10, 439, 449. v. Paterson R. R. Co. (2 C. E. Green 75; 17 N. J. Eq. 75), 11, 16, 81, 82, 86, 91, 100, 101. V. Port Defiance Ry. Co. (14 Wash. 349), 423. Hine v. Bay Cities Consol. Ry. Co. (115 Mich. 204), 385, 439. V. Manhattan Ry. Co. (58 N. Y. Super. 377), 191. V. New York Elevated R. R. Co. (54 Hun 425), 187. V. New York Elevated R. R. Co. (36 Hun 293), 190, 208. V. New York Elevated R. R. Co. ; (129 N. Y. 502), 190. V. New York Elevated R. R. Co. (128 N. Y. 571), 203. V. New York Elev. R. R. Co. (149 ! N. Y. 154), 209. i Hinman v. Winnipeg Elec. St. Ry. \ Co. (16 Manitoba Rep. 16), 135, p. 263. i Hinsley v. London St. Ry. Co. (16 I Ont. L. Rep. 350), 346. I Hintnn v. Cream City R. R. Co. (65 Wis. 323), 347. Hirsch v. Manhattan Ry. Co. (84 App. Div. (N. Y.) 374), 191. Hiss v. Baltimore & Hampden Pass. Ry. Co. (52 Md. 242), 67, 82. Hite V. Metropolitan St. Ry. Co. (130 Mo. 132), 361. Hoag V. New York Central & Hud- son River R. R. Co. (Ill N. Y. 199), 362, 392, 393. Hobart v. Milwaukee City R. R. Co. (27 Wis. 194), 82, 91. Hoboken L. & Imp. Co. v. United Elec. Co. (71 N. J. L. 430), 134. Hobson V. New Mexico & A. R. Co. (11 Pac. Rep. 545), 381. Hoch V. Manhattan Ry. Co. (13 j N. Y. Supp. 633), 201. 1 Hocum V. Weitherick (22 Minn. 152), 38L Hodges V. Baltimore Union Pass. Ry. Co. (58 Md. 603), 82. V. Percival (132 111. 53), 402. Hoelzel v. Crescent City Ry. Co. (49 La. Ann. 1302), 312. Hoffman v. New York Central & Hudson River R. R. Co. (87 N. Y. 25), 373. V. Third Ave. Ry. Co. (45 App. Div. (N. Y.) 586), 350. TABT.E OF CASES. References are to Sections. Hoaan V. Central Park, North & East River R. R. Co. (124 N. Y. 647), 3b5, 385. V. Manhattan Ry. Co. (149 N. Y. 23), 211. Hogencamp v. Paterson Horse R. R. Co. (17 N. J. Eq. 75, S3), IC, 77, 82, 91. Hoimark v. Consolidated Trac. Co. (9 Am. & Eng. R. Cas. (N. S.) 380), 393. Holdridge v. Mendenhall (108 Wis. 1), 320. Holland v. Lynn & Boston R. R. Co. (144 Mass. 425), 396. V. West End St. Ry. Co. (29 N. E. Rep. 622), 338. HoUoway v. Pasadena Ry. Co. (130 Cal 177) 331. Holly V. Atlanta St. R. R. Co. (61 Ga. 215), 324, 328, 335, 374. V. Boston Gas Light Co. (8 Gray 123), 389, 392. Holmes v. Allegheny Trac. Co. (153 Pa. St. 152), 342. Hoist V. Savannah Blec. Co. (131 Fed. Rep. 931), 28. V. Savannah Elec. Co. (132 Fed. Rep. 901), 100. Holstine v. Oregon & California R. R. Co. (8 Ore, 163), 379. Holverson v. Seattle Trac. Co. (35 Wash. 600), 467. Holwerson v. St. Louis Ry. Co. (157 Mo. 216), 378, 379. Holzab V. New Orleans & Carroll- ton R. R. Co. (28 La. Ann. 185), 362, 383. Holt V. Whatly (51 Ala. 569), 381. Homans v. Boston Ry. Co. (180 Mass. 456), 409. Home Insurance Co. v. Augusta (50 Ga. 530), 280. Homestead Ry. Co. v. Pittsburg Ry. Co. (166 Pa. St. 162), 122, 435. Honegsherger v. Second Ave. R. R. Co. (33 How. Pr. 193), 385, 389. Hooe V. Boston & N. St. Ry. Co. (187 Mass. 67), 411. v. Mayor of Alexandria (1 Cranch C. C. 98), 240. Hooh V. Los Angeles Ry. Co. (129 Cal. 180), 116. Hooker v. Chicago, Minneapolis & St. Paul R. R. Co. (76 Wis. 542) , 389. Hooper v. Johnstown, Gloversville & Kingsboro R. R. Co. (13 N. Y. Supp. 151), 290. Hoover v. Carbon Co. Elec. Ry. Co. (191 Pa. St. 146), 411. Hope V. Sixth & Eighth Ave. R. R. Co. (2 Liv. Law Mag. 584), 13. Hopkins v. Utah Northern Ry. Co. (13 Pac. Rep. 343), 381. Hoppe V. Chicago, Milwaukee & St. Paul Ry. Co. (61 Wis. 357), 388. Horbach v. Marsh (37 Neb. 22), 427. Horn V. Chicago & North Western R. R. Co. (38 Wis. 463), 220. Horton v. Nor walk Tram. Co. (G6 Conn. 272), 366. Hot Springs St. Ry. Co. v. Johnson (64 Ark. 420), 303. Houck V. Southern Pacific Ry. Co. (38 Fed. Rep. 226), 325. Hough V. Texas Pacific Ry. Co. (100 Mo. 213), 38L V. Texas & Pacific R. R. Co. (6 Mackey 39), 381. Houghkirk v. Canal Company (92 N. Y. 219), 301. Hourney v. Brooklyn City R. R. Co. (7 N. Y. Supp. 602), 338. Houston V. Gate City St. R. R. Co. (15 S. E. Rep. 323), 349. V. Houston City St. Ry. Co. (83 Tex. 548), 108. Houston City St. Ry. Co. v. Dawson (2 Tex. Un. Cases 223), 262. V. De Lesdernier (19 S. W. Rep. 366), 292. V. Dillon (3 Tex. Civ. App. 303), 387. V. Reichart (87 Tex. 539), 292. Houston & Texas Central R. R. Co. V. Odum (53 Tex. 343), 78. Hovden v. Seattle Elec. Co. (180 Fed. Rep. 487), 346. Hovelman v. Kansas City Horse R. R. Co. (79 Mo. 632), 46, 47. Hovey v. Mayo (43 Me. 322), 92. Howard v. Philadelphia & Reading R. R. Co. (6 Pa. Co. Ct. Rep. 589), 427. Howe V. West End St. Ry. Co. (167 Mass. 46), 83, 127, 441. Howell V. St. Charles St. R. R. Co. (22 La, Ann. 603), 349. Howland v. Union St. Ry. Co. (150 Mass. 86), 313. Hoye V. Chicago & Northwestern Ry. Co. (67 Wis. 1), SOL Hoyle V. New Orleans City R. R. Co. (23 La. Ann 535), 62 Hoyt V Sixth Ave. R. R. Co. (1 Daly 528), 233. Huba V. Schenectady Ry. Co. (85 App. Div. (N. Y.) 199), 364. Hubbard v. Town of Mason City (60 Iowa 400), 395. Ix TABLE OF CASES. References are to Sections. Huber v. La Crosse City Ry. Co. (92 Wis. G3G), 132. Hubert v. St. Paul Ci:y Ry. Co. (85 Minn. 341), 332. Hudson V. Lynn Ry. Co. (178 Mass. G4), 370. V. Lynn Ry. Co. (185 Mass. 510), 395. Hudson River Telephone Co. v. Watervliet Turnpike & R. R. Co. (8 N. Y. Supp. 497), 135, p. 248. V. Watervliet Turnpike R. R. Co. (9 N. Y. Supp. 177; 56 Hun G7), C7, 135, p. 249. V. Watervliet Turnpike & Ry. Co. (135 N. Y. 409), 135, p. 2C4. V. Watervliet Turnpike & R. R. Co. (15 N. Y. Supp. 752; Gl Hun 140), 135, p. 252, 254. Huelsenkamp v. Citizens' Ry. Co. (37 Mo. App. 537), 328, 341. Huff V. Ames (IG Neb. 139), 389. Hughes V. Camden St. Ry. Co. (C5 N. J. L. 203), 302. V. Delaware & H. C. Co. (4 Pa Dist. Rep. 574). 301. V. Metropolitan Elevat-d Ry. Co. (57 N. Y. Super. 379), 191. V. North Pacific Ry. Co. (18 Fed. Rep. lOG), 4G. V. New York Elevated Ry. Co (130 N. Y. 14), 185, 191, 200. Humbird v. Union et. Ry. Co (110 Mo. 7G), 305, 30G. Humphreys v. Ft. Smith Trac Co (71 Ark. 152), 441, 443. Hunt V. Bay City Iron Co. (97 Mass. 279), 423. V. Missouri R. R. Co. (14 Mo App. ICO), 338, 340. Hunter v. Manhanin Ry. Co (141 N. Y. 281), 209. Hunting v. Hartford St. Ry Co 73 Conn. 179), 424. Huntoon v. Trumball (2 McCrarv 314), 392. ^ Hurst V. Dftroit City Ry. Co (84 Mich. 539), 409. Hurdle v. Washington Rv Co (8 App. Cas. (D. C.) 120), 320. Hurt V. Ft. Louis, I. M. & S R R Co. (94 Mo. 255), 379. Hussner v. Brooklyn City R R Co (30 Hun 409), 80. V. Brooklyn City R. R. Co. (114 N. Y. 433), 77, 91. Huston V. Port Atkinson (56 Wis 350), 75. Hutchinson v. Belmar (61 N. J. L. 443), 20. V. St. Louis Ry. Co. (88 Mo. App. 376), 316. Hutton V. Metropolitan Elec. Ry. Co. C19 App. Div. (N. Y.) 243), 191. Hyde v. Boston (186 Mass. 115), 250. V. Boston Ry. Co. (194 Mass. 80), 92. Hyde's Perry Turnpike Co. v. Davidson County (18 S. W. Rep. 626), 6. Hyde Park v. Old Colony Ry. Go. (188 Mass. 180), 436. Hyland v. Short Route Ry. Trans- fer Co. (10 Ky. Law Rep. 900), 100. V. Yonkers R. R. Co. (4 N. Y. Supp. 305), 30G, 307, 389. V. Yonkers R. R. Co. (1 N. Y. Supp. 363), 306, 307, 308. I Ihl V. Forty-second St. & Grand St. Ferry R. R. Co. (47 N. Y. 317), 310, 387, 389, 391. Illinois Central R. R. Co. v. Chi- cago (141 111. 509), 275. V. Dick (15 S. W. Rep. 665), 379. V. Galena (40 111. 344), 220. V. Hoffman (67 111. 287), 380. V. McClean County (17 111. 291) 268. V. People (95 111. 313), 220, 232. V. Slater (129 111. 91), 388. V. Willenborg (117 111. 203), 220. Illinois Trust & Sav. Bank v. Doud (105 Fed. Rep. 123), 5L Illinois T. & S. Bank v. Pac. Ry. Co. (117 Cal. 332), 423. Ilwaco Ry. & Nav. Co. v. Hedrick (25 Pac. Rep. 335), 292. Imeson v. Tacoma Ry. & P. Co (42 Wash. 74), 134. Imlay v. Union Branch Ry. Co. (26 Conn. 249), 82. Inclined Plane Ry. Co. v. Isaacs (18 Ohio C. C. 177), 345. Indiana, B. & W. Rv. Co. v Eberly (110 Ind. 542), 102. V. Hartley (67 111. 439), 78. Indi'fna Ry. Co. v. Hoffman (161 Ind. 593), 437, 474. Indiana Trac. Co. v. Jacobs (167 Ind. 85), 463. V. Maines (33 Ind. App. 63), 298. TABLE OF CASES. Ixi Beferences are to Sections. Indiana Trac. Co. v. McKluney (39 Ind. App. 8G), 462. V. Pheanis (43 Ind. App. 653), 457. Indianapolis v. Navln (151 Ind. 139), 233. V. Sturdevant (24 Ind. 391), 267. Indianapolis, B. & W. Ry. Co. v. Smith (52 Ind. 428), 78. Indianapolis Cable St. Ry. Co. v. Citizens' St. Ry. Co. (127 Ind. 369), 122. Indianapolis, Cincinnati & La Fay- ette R. R. Co. V. Jones (29 Ind. 465), 429. Indianapolis, P. & C. Ry. Co. v. Pitzer (109 Ind. 179; 10 N. E. Rep. 700), 310. Indianapolis Ry. Co. v. Schmidt (35 Ind. App. 202), 455, 456, 458. Indianapolis R. T. Co. v. Forman (162 Ind. 85), 412. Indianapolis St. Ry. Co. v. Brown (32 Ind. App. 130), 349. V. Davison (31 Ind. App. 605), 327. V. Hockett (161 Ind. 196), 365. V. Indianapolis & M. Ry. Co. (33 Ind. App. 337). 103. V. New Castle (43 Ind. App. 467), 40. V. Pressell (39 Ind. App. 472), 250. V. Schmidt (163 Ind. 360), 361. V. Tenner (32 Ind. App. 311), 346. V. Tylor (158 Ind. 274), 381, 410. V. Walton (29 Ind. App. 368), 290. V. Whittaker (160 Ind. 125), 400. V. Wilson (161 Ind. 153), 237. Indianapolis Trac. Co. v. Dunn (37 Ind. App. 248), 447. V. Kidd (167 Ind. 402), 380. V. Kinney (171 Ind. 612), 432, 470, 471. V. Flentschy (167 Ind. 598), 462. V. Romans (40 Ind. App. 184), 229. V. Smith (42 Ind. App. 604), 432, 459. Indianapolis & G. T. Co. v. Andis (33 Ind. App. 625), 432, 47o, 471. Indianapolis & St. L. R. R. Co. v. Peyton (76 111. 340), 359. V. Stables (62 111. 313), 408, 409. Indianapolis & V. R. Co. v. Indian- a^^olis & M. T. Co. (33 Ind. App. 3371. 446, 473. IngerpoH v. Nassau Flee. Ry. Co. (157 N. y. 453), 19. Ingraham v. Chicap-o, D. & M. R. R. Co. (34 Iowa 349), 78. Inland & Seaboard Coasting Co. v. Tolson (139 U. S. 551), 379. Innes v. Manhattan Ry. Co. (3 App. Div. (N. Y.) 640), 200. In re Atlantic Avenue Elevated R. R. Co. (12 N. y. Supp. 228), 159. Auburn City Ry. Co. (88 Hun 603), 21. Board of Rapid Transit Railroad Commissioners (18 N. Y. Supp. 320), 155, 160. Broadway Surface R. R. Co. (34 Hun 414), 18, 21. Broadway Underground Ry. Co. v. Newton (23 Hun 693), 18, 19, 21. Brooklyn Elevated R. R. Co. (125 N. y. 434), 46, 47, 50, 160, 184. Brooklyn Elevated R. R. Co. (55 HiJj 165), 176, 177, 187, 195. Brooklyn Elevated R. R. Co. (11 N. y. Supp. 61), 160. Brooklyn Elevated R. R. Co. (8 N. y. Supp. 78), 195. Brooklyn R. R. (94 N. Y. Supp. 113; 72 N. y. 245), 47, 439. Brooklyn Rapid Transit Co. (62 How. Pr. 404), 187. Brooklyn, Winfield & Newtown Ry. Co. (81 N. Y. 69), 47. Brooklyn, Winfield & Newtown Ry. Co. (75 N. Y. 335), 46, 184. Brooklyn, Winfield & Newtown Ry. Co. (72 N. Y. 245), 44, 46, 47, 50, 106, 184. Cable Ry. Co. (45 Hun 153), 21. Commissioners of the State Res- ervation at Niagara (37 Hun 537), 174. Commissioners (96 N. Y. 351), 166. Citizens' Pass. Ry. Co. (2 Pittsb. 10), 6, 103, 109, 114, 115. Cortland & Homer Horse R. R. Co. (31 Hun 72), 19, 24. Eastern Wisconsin Ry. Co. (127 Wis. 641), 450. Empire City Trac. Co. (4 App. Dlv. (N. y.) 103), 25, 28. Fulton Street (29 How. Pr. 429), 241. Gilbert Elevated R. R. Co. (38 Hun 438), 187, 190. Gilbert Elevated Ry. Co. (17 N. Y. Supp. 109), 190. Gilbert Flevated Ry. Co. (9 Hun 803), 156, 160. Gilbprt R. R. Co. (70 N. Y. 361), 187. Kings Countv Elevated Ry. Co. r82 N. Y. 95), 159. Kinsrs Countv Flevited Ry. Co. (n Hnn 425), 44, 48. Kines Countv Elevated Ry. Co. (18 Hun 378), 157. Ixii TABLE OF CASES. References are In re Kings County Elevated Ry. Co. (112 N. Y. 47), 160. Kings County Elevated R. R. Co. (15 N. Y. Supp. 516), 173, 175, 177, 190. Kings County Elevated R. R. Co. (15 N. Y. Supp. 517), 177. Kings County Elevated R. R. Co. (12 N. Y. Supp. 198), 181. Kings County Elevated R. R. Co. (105 N. Y. 97), 18, 19, 28, 29, 50, 105, 154, 156, 160, 161, 184. Lackawanna & Western Ry. Co. (99 N. Y. 12), 163. Lockport & Buffalo R. R. Co. (77 N. Y. 557), 18, 169. Metropolitan Elevated Ry. Co. (12 N. Y. Supp. 506), 103, 160, 163, 167, 169, 170, 172. Metropolitan Elevated Ry. Co. (12 N. Y. Supp. 502), 103, 170, 172. Metropolitan Elevated Ry. Co. v. Dominick (55 Hun 198), 166. Metropolitan Elevated Ry. Co. (128 N. Y. 600), 181. Metroijolitan Elevated Ry. Co. (57 Hun 130), 181. Metropolitan Elevated R. R. Co. (2 N. Y. Supp. 278), 103, 163, 165, 166, 167, 169, 170, 171, 185. Metropolitan Elevated Ry. Co. (7 N. Y. Supp. 707), 166. Metropolitan Ry. Co. (12 N. Y. Supp. 859), 171. Metropolitan Ry. Co. (13 N. Y. Supp. 159), 177. Metropolitan Transit Co. (1 N. Y. Supp. 114), 169. Metropolitan Transit Co. (Ill .\. Y. 588), 56, 161, 169. Metropolitan Transit Co. (45 Hun 159), 168. Nassau Cable Co. (36 Hun 272). 18, 21. New Brunswick & Canada B,. R. Co. (1 P. & B. N. B. 667), C".. New York Cable Co. (36 Hun 35n). 19, 21. New York Cable Ry. Co. (40 Hmi 1), 18, 19, 21, 48, 155, 158. New York Cable Co. (104 N Y. ! 1), 161. New York Cable Ry. Co. (45 Hun 153), 19, 21, 155, 156, 1C1. New York Central R. R. Co. (60 N. Y. 407), 169. New York Central & Hupf t Park & Coney Island R. R. Co. fl3 Hun 345), 195. Prnsnect Park & Coney Island R. R. Co. (24 Hun 199; affd. 85 N. y. 4891, 182. PRiib ffis Ohio Pt. 128), 399. Rhodp TslaTTl Suburban Ry Co. f22 R. I. 457), 103, 446. TABLE OF CASES. Ixiii References are to Sections. In re Rochester Electric Ry. Co. (123 N. Y. 351), 21, 28, 105, 434, 435, 449. Sabel (8 N. Y. Supp. 707), 173. St. John's Bridge & Ry. Co. (11 Can. Law T. 181), 269. Saratoga Electric R. R. Co. (58 Hun 287; 12 N. Y. Supp. 318), 18, 28. Second Ave. R. R. Co. (12 Am. Law Reg. 447), 284, 287. Shelton St. Ry. Co. (69 Conn. 626) , 64. South Beach R. R. Co. (119 N. Y. 141; ateg. 53 Hun 131), 103, 446. South Beach Ry. Co. (53 Hun 131), 62. Southern Boulevard R. R. Co. (12 N. Y. Supp. 466), 7. Split Rock Cable Co. (58 Hun 351), 106. Split Rock Cable Road Co. (128 N. Y. 408), 8. Staten Island Rapid Transit R. R. Co. (20 Wkly Dig. 15), 169. Staten Island Rapid Transit Co. (103 N. Y. 251), 106. Staten Island Rapid Transit Co. (37 Hun 422), 105. Staten Island Rapid Transit Co. 47 Hun 396), 106. Suburban Rapid Transit Co. (38 Hun 553), 156. Third Ave. R. R. Co. (121 N. Y. 536; Revsg. 56 Hun 527), 33, 37, 60, 69, 70, 84. Thirty-Fourth St. Ry. Co. (102 N. Y. 343), 3, 29. Toronto Ry. Co. (25 Ont. App. 135), 271. Union Elevated R. R. Co. (113 N. Y. 275), 34, 163. Union Elevated R. R. Co. (1 N. Y. Supp. 797), 160, 161, 166. Union Elevated R. R. Co. (112 N. Y. 61), 159. Union Elevated R. R. Co. (4 N. Y. Supp. 85), 163. Union Elevated R. R. Co. (55 Hun 163; 7 N. Y. Supp. 853), 174. Utica, Chenango & Susquehana Valley R. R. Co. (56 Barb. 456), 195. Washington Ry. Co. (115 N. Y. 442), 468. Washington St. Asylum & Park R. R. Co. (52 Hun 311), 429. International & G. N. R. R. Co. v. Brazzll (78 Tex. 314), 410. Interurban Ry. Co. v. Cincinnati (75 Ohio St. 196), 437, 474. Interurban Ry. Co. v. Hancock (75 Ohio St. 88), 342, 466. V. Hines (13 Ohio C. C. 168), 469. v. Treuheit (29 Ohio C. C. 407), 415, 470. Inter-State Consolidated Rapid Transit Co. v. Early (46 Kan. 197), 92. V. Simpson (26 Pac. Rep. 393), 107. lola Ry. Co. v. Jackson (70 Kan. 791), 459. lov/a V. Omaha & Council Bluffs Ry. & Bridge Co. (91 Iowa 517), 45. V. Omaha & C. B. Ry. Co. (113 la. 30), 233. Ireland v. Metropolitan Elevated R R. Co. (52 N. Y. Super. 450), 185. 190, 194, 199. Irvine v. Atlantic Ave. Ry. (10 App Div. (N. Y.) 560), 100. V. Atlantic Ave. Ry. Co. (23 App. Div. (N. Y.) 112), 28. Irwin V. Brooklyn Heights Ry. Co. (59 App. Div. (.N Y.) 95), 410. Irwin V. Great Southern Telephone Co. (37 La. Ann. 63), 128. Isaacs V. Third Ave. R. R. Co (47 N. Y. 123), 371, 372. Isbell V. New York & New Haven R. R. Co. (27 Conn. 393), 378. Isom V. Low Fare Ry. Co. (29 Ohio C. C. 583), 19. Israel v. Manhattan Ry. Co. (158 N. Y. 624), 195, 196. Ives V. South Buffalo R. Co. (45 N. Y. L. J. 23), 471. Jackson v. Consolidated Trac. Co. (59 N. J. L. 25), 409. V. Philada. Trac. Co. (182 Pa. St. 104), 342. V. Second Ave. R. R. Co. (47 N. Y. 274), 372. V. St. Paul City Ry. Co. (74 Minn. 48), 351. V. Union Ry. Co. (77 App. Div. (N. Y.) 161), 383. Jackson County Horse R. R. Co. v. Interstate Rapid Transit Co. (24 Fed. Rep. 306), 108. Jackson Ry. Co. v. Lowry (79 Miss. 431), 347. Jackson & Sub. Trac. Co. v. Com- missioners (128 Mich. 164), 109. Jacksonville Elec. Ry. L. & P. C!o. v. Adams (79 Miss. 408), 47. Ixiv TABLE OF CASES. Befereuces are Jacksonville S. Ry. Co. v. Chappell (21 Fla. 175), 309, 330, 301, 386. V. Chappell (22 Fla. CIG), 375. Jacksonville v. Jacksonville R. R. Co. (C7 111. 540), 7. Jacksonville Ry. Co. v. Jacksonville (114 111. 5G2), 275. Jacobs v. Third Ave. Ry. Co. (71 App. Div. (N. Y.) 199), 239. v. West End St. Ry. Co. (178 Mass. IIC), 349. Jacquemin v. Montreal St. Ry. Co. (Q. R. 11 S. C. 419), 380. Jacques V. Bridgeport Horse R. R. Co. (41 Conn. 01), 292. Jacquin v. Grana Ave. Cable Co. (57 Mo. App. 320), 309. Jamaica & Brooklyn R. R. Co. v. Brooklyn (123 N. Y. 375), 269. James v. Metropolitan St. Ry. Co. (80 App. Div. (N. Y.) 3G4), 372. Jamieson v. Kings Co. Elec. Ry. Co. (147 N. Y. 322), 209. Jardine v. Connell (50 N. J. L. 485), 372. Jarmy v. Duluth St. Ry. Co. (55 Minn. 271), 374. Jasper Ry. Co. v. Curtis (154 Mo. 10), 448. Jatbo V. Green & Coates St. Pass. Ry. Co. (4 Pbila. 24), 311. Jeffers v. Annapolis (107 Md. 268), 431, 441, 455. Jefferson v. Birmingham Ry. (116 Ala. 294), 365. V. New York Elevated R. R. Co. (11 N. Y. Supp. 488), 195, 198, 208. V. New York Elevated R. R. Co. (132 N. Y. 483), 209. Jaynes v. Omaha Ry. Co. (53 Neb. C31), 83. Jeffersonville, M. & I. R. R. Co. v. Esterle (13 Bush. 667), 102, 185. V. Riley (39 Ind. 568), 372. Jenkins v. Brooklyn Heights Ry. Co. (29 App. Div. (N. Y.) 8), 237. Jenney Electric Co. v. Murphy (115 Ind. 566), 413. Jennings v. Salt Lake Ry. Co. (9 rtah 31), 96, 100. V. Tacoma Ry. & Motor Co. (7 Wash. 275), 415. Jersey City v. Fitzpatrick (30 N. J. Eq. 97), 99. V. Jersey Cty & Bergen St. Ry. Co. (15 N. J. Law. Jour. 109), 292. V. Jersey City Ry. Co. (70 N. J. L. 3G0), 280. to Sections. Jersey City Ry Co. v. Passaic (68 N. J. L. 110), 439. Jersey City & faergen R. R. Co. v. Jersey City Sc. fioboken R. R. Co. (20 N. J. Eq. 61), 114. Jersey City & Hoboken R. R. Co. V. Jersey City & Bergen K. R. Co. (21 N. J. Eq. 550), 114, 115. Jetter v. New York & Harlem R. R. Co. (2 Keyes 154), 320. V. New "Xork & Harlem R. R. Co. (2 Abbott 458), 359. Jewett V. Union tlevated R. R. Co. (1 N. Y. Supp. 123), 185, 191. Jirachek v. Milwaukee Elec. Ry. Co. (139 Wis. 505), 349. Johnsen v. Oakland Ry. Co. (127 Cal. 608), 320. Johnson v. Canal & Claiborne St. R. R. Co. (27 La. Ann. 53), 303, 311. v. Christopher & Tenth St. R. R. Co. (1 Abb. N. C. 79), 98. V. Commonwealth (22 Pa. St. 102), 74. V. Detroit Ry. Co. (130 Mich. 453), 372. V. Hudson River R. R. Co. (20 N. Y. 65), 229, 381. V. Hudson River R. R. Co. (5 Duer 21), 378. v. Hudson River R. R. Co. (13 N. Y. Super. G33; affd. in 20 N. Y. 65), 300, 309. V. Manhattan Ry. Co. (52 Hun 111), 214. V. Manhattan Ry. Co. (16 N. Y. Supp. 434), 205, 209. V. Manhattan Ry. Co. (11 N. Y. Supp. 68), 20L V. New Orleans (105 La. 149), 26. V. Philadelphia (GO Pa. St. 445), 279, 280, 282, 283. V. St. Joseph Ry. Co. (128 S. W. Rep. 243), 336, 353. V. St. Paul City Ry. Co. (67 Minn. 2C0), 310. V. Tillson (36 Iowa 89), 379. V. Town of Irasburgh (47 Vt. 28), 3C6. V. Wells, Fargo &' Co. (6 Nev. 224), 408, 409. V. West Side St. Ry. Co. (10 W. I . B. 345), 25. Joliet. Citv of, V. Seward (86 111. 402), 392. Joliet Ry. Co. v. Barty (9C 111. App. 3!^]), 305. V. Eich (96 111. Aw. 240), ?05. Jones v. BrooVlyn Heights Ry. Co. (23 App. Div. (N. Y.) 141), 408. TABLE OF CASE3. Ixv Beferences are to Sections. Jones V. Metropolitan Elevated Ry. Co. (14 N. Y. Supp. G32), 190, 200. v. New York Elevated R. R. Co. (18 N. Y. Supp. 134), 195. V. Rosedale St. Ry. Co. (75 Tex. 382), 100. V. Union Ry. Co. (18 App. Dlv. (N. Y.) 2G7), 132, 292. v. United Trac. Co. (201 Pa. St. 34G), 387. V. United Rys. Co. (99 Md. 64), 344. Jordan v. Metropolitan Elevated R. R. Co. (18 N. Y. Supp. 205), 190. V. Old Colony Ry. Co. (188 Mass. 124), 457. V. Washington Ry. Co. (25 Pa. Super. Ct. 564), 56. Joslin V. Grand Rapids Ice & Coal Co. (53 Mich. 322), 399. Joslyn V. Milford Ry. Co. (184 Mass. 65), 331, 463. Joyce V. Halifax St. Ry. Co. (21 Nova Scotia Rep. 531), 292. V. St. Paul City Ry. Co. (70 Minn. 339), 349. Julia Building Association v. Bell Telephone Co. (88 Mo. 258), 128. Junior v. Missouri Elec. L. & P. Co. (127 Mo. 79), 415. K Kaechele v. United Trac. Co. (15 Pa. Super. Ct. 73), 316. Kaiser v. St. Paul S. & T. F. R. R. Co. (22 Minn. 149), 78. Kalamazoo v. Mich. Trac. Co. (126 Mich. 525), 40. Kanawha Coal Co. v. Kanawha & Ohio Coal Co. (7 Blatch. 391), 15. Kane v. Cicero St. Ry. Co. (100 111. App. 181), 326. V. Manhattan R. Co. (17 N. Y. Supp. 109), 186, 190, 199, 203. V. New York Elevated R. R. Co. (125 N. Y. 164), 185, 187, 190, 199; 209. v. West End S't. Ry. Co. (169 Mass. 64), 292. Kansas Central Ry. Co. v. Fltzslm- mons (22 Kan. 686), 292. Kansas City v. Corrigan Consolida- ted f?t. Ry. Co. (86 Mo. 67), 242 244. V. Kansas' City Belt R. R. Co. (102 Mo. 633), 277. Kansas City vs. Kansas City Ry. Co. (187 Mo. 146), 29, 30. Kansas City Interurhan Ry. Co. v. Davis (197 Mo. 669), 446. V. Nelson (193 Mo. 297), 447. Kansas City Ry. Co. v. Commis- sioners (73 Kan. 168), 432, 450. Kansas, Nebraska & Dakota Ry. Co. v. Cuydenhall (42 Kan. 234), 78. Karahuta v. Schuylkill Trac. Co. (6 Pa. Super. Ct. 319), 307. Karrlgan v. Market St. Ry. Co. (138 Cal. 506), 415. Kaumeier v. City Elec. Ry. Co. (116 Mich. 306), 292. Kean v. Baltimore & Ohio R. R. Co. (61 Md. 154), 395. Kearnev v. Metropolitan Ry. Co. (14 N. Y. St. Rep. 854), 206. V. Metropolitan Elevated R. R. Co. (129 N. Y. 76), 191, 204. v. Metropolitan Elevated Ry. Co. (13 N. Y. Supp. 608), 190. Keator v. Scranton Trac. Co. (191 Pa. St. 102), 326. Keefe v. Lexington Ry. Co. (185 Mass. 183), 233. Keen v. Detroit Elec. Ry. Co. (123 Mich. 247), 237. Keenan v. Union Trac. Co. (202 Pa. St. 107), 312, 456. Keene v. Metropolitan El. Ry. Co. (79 Hun 451), 186. Keffe V. Milwaukee R. R. Co. (21 Minn. 207), 292. Kehoe v. Allentown Trac. Co. (187 Pa. St. 474), 409. Keim v. Union Ry. & Transit Co. (90 Mo. 314), 359. Keltal V. St. Louis Cable & West- ern Ry. Co. (28 Mo. App. 657), 58, 292. Keller v. Hestonville. Mantua & Fairmount Pass. Ry. Co. (149 Pa. St. 65), 329, 361. Kellinger v. Forty-second St. & Grant St. Ferry R. R. Co. (50 N. Y. 206), 82, 91. Kelley v. Consol. Trac. Co. (62 N. J. L. 514), 348. V. Manhattan Ry Co. (112 N. Y. 443), 214. V. New York & Manhattan Beach Ry. Co. (81 N. Y. 233), 200. V. Union Ry. & T. Co. (95 Mo. 279), 229. V. United Trac. Co. (88 App. Dlv. (N. Y.) 234), 314. Ixvi TABLE or CASES. References are to Sections. Kelly V. Hendrie (26 Mich. 255), 306, bl2. V. Metropolitan St. Ry. Co. (89 App. Div. (N. Y.) 159), 328. V. N. Y. & Sea Beach Ry. Co. Co. (109 N. Y. 44), 332. Kenkele v. Manhattan Ry. Co. (55 Hun 398), 171, 177, 208. Kennedy v. Board of Education (82 Cal. 483), 261. V. Detroit Ry. Co. (108 Mich. 390), 56. V. Lansing (99 Mich. 518), 16, 255 V. Manhattan St. Ry. Co. (145 N. Y. 288), 415. V. Phelps (10 La. Ann. 227), 238. V. Rochester City & Brighton R. R. Co. (54 Hun 183), 397. V. St. Louis R. R. Co. (43 Mo. App. 1), 306. Kennelly v. Mayor (30 Atl. Rep. 531), 28. Kenney v. Second Ave. Ry. Co. (89 Hun 340), 413. Kent V. City of Bingham (88 N. Y. S'upp. 34), 50. V. Council of Binghampton (01 App. Div. (N. Y.) 323), 429. V. Manhattan Ey. Co. (4 App. Div. (N. Y.) 93), 200. Kentucky Central R. R. Co. v. Thomas (79 Ky. 160), 379. Keogh V. Pittston & Scranton Ry. Co. (195 Pa. St. 131), 28. Keokuk, Northern Line Packet Co. V. True (88 111. 608), 372. Kernochan v. Manhattan Ry. Co. (161 N. Y. 339), 192. V. New York Elevated R. R. Co. (13 N. Y. Supp. 624), 208. v. New York Elevated R. R. Co. (128 N. Y. 559), 190, 203, 208, 209. V. New York Elevated R. R. Co. (57 N. Y. Super. 434), 191. Kerwhacker v. C. C. & C. R. R. Co. (3 Ohio St. 172), 379. Kerr v. Boston Elec. Ry. Co. (188 Mass. 434), 457. Kestner v. Pittsburg Trac. Co. (158 Pa. St. 422), 304. Kettle V. City of Dallas (35 Tex. Civ. App. 632), 242. Kibbie Telegraph Co. v. Landphere (151 Mich. 309), 453. Kiep v. Metropolitan Elevated Rv. Co. (17 N. Y. Supp. 804), 189, 190. Kierzenkowski v. Phila. Trac. Co. (184 Pa. St. 459). 310. Kimic V. San Jose-Los Gatos Inter- urban R. Co. (156 Cal. 379), 4C2. Kimler v. Silsbee (38 Ohio St. 445), 79. Kincaid v. Walla Walla Valley Trac. Co. (57 Wash. 334), 262, 303. King V. Inter-State Consol. Ry. Co. (23 R. I. 583). 415. V. Severn & Wye Ry. Co. (2 Barn. & Aid. 646), 665. Kingan v. Gettysburg Trac. Co. (5 Pa. Super. Ct. 436), 295, 413. Kingman v. Lynn Ry. Co. (181 Mass. 387), 332. Kingsbridge Ry. Co., Matter of (66 App. Div. N. Y.) 497), 21 KingsJand v. King's Co. Elec. Ry. Co. (83 Hun 151), 156. Kingston v. Ft. Wayne Ry. Co. (112 Mich. 40), 395. V. Kingston Elec. Ry. Co. (25 Ontario App. Rep. 462), 65. Kinlen v. Metropolitan St. Ry. Co. (216 Mo. 145), 303. Kinsey v. Union Trac. Co. (169 Ind. 563), 431. 432, 441. 442, 443, 451, 455. Kinsman St. Ry. Co. v. Broadway & Newburgh St. Ry. Co. (36 Ohio St. 239), 110, 114, 115. Kip V. New York & Harlem R. R. Co. (6 Hun 24), 163. V. New York & Harlem R. R. Co. (67 N. Y. 227). 163. Kipp V. Davis-Daly Copper Co. (41 Mont. 509), 441, 468. Kirby v. Citizens' Ry. Co. (48 Md. 168), 42. Kirchmann v. West & South Towns St. Ry. (58 111. App. 515), 18,24. Kirtland v. Mayor (66 Ga. 385), 75. Klssam v. Brooklyn Elec. R. R. Co. (86 Hun 598), 200. Kittinger v. Buffalo Trac. Co. (160 N. Y. 377), 15. Kleiber v. People's Ry. Co. (107 Mo. 240), 383. Klein v. Crescent City R. R. Co., (23 La. Ann. 729), 323. Kline v. Electric Track Co. (181 Pa. St. 276), 319. Klinger v. Bickel (117 Pa. St. 326), 231. V. United Trac. Co. (92 App. Div. (N. Y.) 100), 361. Klockenbrink v. St. Louis Ry. Co. (172 Mo. 678), 457, 458. TABLE OF CASES. Ixv References are to Sections. Knaisch v. Joline (123 N. Y. Supp. 412), 374. Knickerbocker Trust Co. v. Kala- mazoo (182 Fed. Rep. 865), 439 Knight V. Pontchartrain R. R. Co. (23 La. Ann. 462), 336. Knightstown v. Musgrove (IIC Ind. 121) 393. Knittel v. United Rys. Co. (128 S. W. Rep. 5), 305. Knobloch v. Railway Co. (31 Minn 402), 220. Knoll V. New Jersey St. Ry. Co. (75 Atl. Rep. 450), 316. Knorr v. Miller (5 Ohio C. C. 609), 15, 24, 26. Knotterus v. North Park St. Ry. Co. (93 Mich. 348), 461. Knowlton v. Milwaukee City Ry, Co. (59 Wis. 278), 366, 383. Knox V. Metropolitan Elevated Ry. Co. (58 Hun 517), 191, 206. Knoxville v. Africa (77 Fed. Rep. 501), 3, 28. Knoxville Trac. Co. v. Lane (103 Tenn. 376), 372. Kobey v. Hakes (54 Conn. 274), 261. Koch V. North Ave. R. R. Co. (23 Atl. Rep. 463), 15. 83, 114. V. St. Paul City Ry. Co. (45 Minn. 407), 321. Koehler v. New York Blec. Ry. Co. (159 N. Y. 218, 9 App. Div. (N. Y.) 449), 21, 156. Koetter v. Manhattan Ry. Co. (13 N. Y. Supp. 458), 372, 399. Koken Iron Wks. v. Robertson Ave. Ry. Co. (141 Mo. 228), 428. Korn V. Metropolitan Elevated Ry. Co. (59 Hun 505; 13 N. Y. Supp. 518), 191, 192, 208. V. New York Elevated R. R. Co. (15 N. Y. Supp. 10), 190, 201. 202, 203. Kornder v. Kings Co. Elev. R. R. Co. (41 App. Div. (N. Y.) 357; 61 App. Div. (N. Y.) 439), 191, 192. Kowalski v. Newark Pass. Ry. Co. (15 N. J. L. Jour. 50), 292, 331, 336, 346. Kraatz v. Brush Electric Light Co. (82 Mich. 457). 292. 402. Kramer v. New Orleau'^ City Ry. Co. (51 La. Ann. 16R<1), 305. Kramm v. Stockton El^c. Ry. Co. (3 Cal. App. 606), 380. Kreusen v. Forty-Second St. & Man- hattanvllle & St. Nicholas Ave. R. R. Co. (13 N. Y. Supp. 588). 374, Kioesen v. New Castle Elec. St. Ry. Co. (198 Pa. St. 26), 307, 387. Krone v. Kings County Elevated Ry. Co. (13 N. Y. Supp. 295; 50 Hun 431), 191. Krulevitz v. Eastern R. R. Co. (143 Mass. 228), 373. Kucheman v. C, C. & B. Ry. Co. (46 Iowa 366), 78. Kuh V. Metropolitan Elevated R. R. Co. (58 N. Y. Super. 138; 9 N. Y. Supp. 710), 191, 207, 209. Kunz V. City of Troy (10 N. E. Rep. 442), 389. Kuttner v. Lindell Ry. Co. (29 Mo. App. 502), 3G2. Lacey v. Marshalltown (99 Iowa 367), 259. Lackland v. North Mission R. R. Co. (31 Mo. 180), 185. La Cross Ry. Co. v. Higbee (107 Wis. 389), 83. Ladd V. Brockton St. Ry. Co. (180 Mass. 454), 415. Laethem v. Ft. Wayne Ry. Co. (100 Mich. 297), 305. Lafayette v. Nagle (113 Ind. 434), 102. Lafferty v. Third Ave. Ry. Co. (85 App. Div. (N. Y.) 592), 389. Lafflin v. Buffalo & S. W. R. R. Co. (106 N. Y. 136), 334. LaFitte v. New Orleans & Lake R. R. Co. (43 La, Ann. 34), 372, 373. Lahr v. Metropolitan Elevated Ry. Co. (104 N. Y. 268), 185, 187, 190, 194, 195. Lahti V. Fitchburg St. Ry. Co. (172 Mass. 147), 300. Lake v. Cincinnati Inc. Plane Ry. Co. (13 Ohio C. C. 494), 351. Lake Roland Elev. Ry. Co. v. Frick (86 Md. 259), 195. V. Mayor (77 Md. 352), 40. V. McKewen (80 Md. 593), 381. V. Webster (81 Md. 529), 190. V. Weir (86 Md. 273), 209. Lake Shore & Mich. S. R. Co. v. Chicago Lake Shore R. Co. (92 N. E. Rep. 989), 454. Lake Shore & Michigan Southern Ry. Co. V. Chicago & Western R. R. Co. (97 111. 506), 118. Lake St. Elev. Ry. Co. v. Brooks (90 111. App. 173), 77. V. Burgess (99 111, App. 499), 215. V. Gormley (108 III. App. 59), 326. Ixviii TABLE OF CASES. References are Lake St. Elev. Ry. Co. v. Shaw (103 111. App. C62), 349. Lakin v. Willamette Valley & Coast R. R. Co. (13 Ore. 436), 425. Lamlj V. Old Colony R. R. Co. (140 Mass. 79), i.98. V. St. Louis Cable & Western Ry. Co. (33 Mo. App. 489), 226, 305, 306. Lamborn v. Bell (18 Colo. 346), 269. Lamline v. Houston, West Side & P. F. R. R. Co. (14 Daly 144), 225, 308, 335, 348. Lane County v. Oregon (7 Wall. VI), 274. Langdon v. Mayor (93 N. Y. 129), 40. Lange v. La Crosse & E. Ry. Co. (118 Wis. 558), 105. Lane v. City of Syracuse (12 App. Div. (N. Y.) 118), 255. Lansing v. Coney Is. Ry. Co. (16 App. Div. (N. Y.) 146). 330. V. Lansing Ry. Co. (109 Mich. 123), 244, 254, 261, 436. La Pointe v. Middlesex R. R. Co. (144 Mass. 18), 342. Laredo Elec. Ry. Co. v. Hamilton (23 Tex. Civ. App. 480), 243. Larimer & lincoln St. Ry. Co. v. Larimer St. Ry. Co. (137 Pa. St. 533), 11. 12, 28. Larson v. Central Rv. Co. (56 111. ;Vt)p. 263), 133, 292. Laschinger v. St. Paul Ry. Co. (84 Minn. 333), 314. Laughlin v. Street R. R. Co. of Grand Rapids (62 Mich. 220), 294. V. Street Ry. Co. (80 Mich. 154), 397. Lauman v. Lebanon Valley R. R. Co. (30 Pa. St. 42), 429. Law'er v. Hartford St. Ry. Co. (72 Conn. 74), 315. Lawrpnce v. Ppndleton St. R. R. Co. (1 C'Ti. SuTiPT. at. 180), 306. v. Metro'^olUan Flovated Ry. Co. (R N. Y. Shop. R?6). 207. V. MrtrnrolHan Elevated Ry. Co. f1?6 N. Y. 493; affg. 12 N. Y. Pimn. SiP'\. 200. V. TTotfOTioV'tni P'pvpted Rv. Co. f1R D-'W ROI; 12 N. Y. Supp. K^'fil. Ifl'!. 207. V. ^T'>■w Bedford (160 Mass. 227), Lav'^'p V. T-acoTvi!,, Ry. Cq. (29 WaF>i. 6R1t. 2S7. Lax V. Fortv-Spro"d St. X'- Orand St. Ferrv R. R. To. (46 N. Y. Super. 448), 337. 349. to Sections. Lazarus v. Metropolitan Elev. Ry. Co. (5 App. Div. (N. Y.) 398), 209. Leach v. Owensboro City Ry. Co. (125 S. W. Rep. 708), 310. Leahey v. Cass Ave. & Fairground Ry. Co. (97 Mo. 165), 398. Leake v. Philadelphia (150 Pa. St. 343), 5, 242. Leary v. Boston Ry. Co. (180 Mass. 203), 259. V. Peoples' Ry. Co. (16 Mo. App. 561), 419. Le Barron v. East Boston Ferry Co. (11 Allen 312), 361. LeClera v. Gallipolis (7 Ohio St. 218), 7. Lee V. Manhattan Ry. Co. (53 N. Y. Super. 260), 215. V. Pa. Trac. Co. (105 Fed. Rep. 405), 428. V. Troy Citizens' Gas Light Co. (98 N. Y. 115) SSL V. Union Ry. Co. (12 R. I. 383), 248, 381. Leffmann v. Long Is. Ry. Co. (105 N. Y. Supp. 487), 89. Lehigh Valley Coal & Nav. Co. v. Inter-County Ry. Co. (167 Pa. St. 75), 28, 435. Lehman v. Brocklyn City R. R. Co. (47 Hun. 355), 408. Lehner v. Pittsburg By. Co. (223 Pa. St. 208), 361, 383. Lehr v. Steinway & Hunter's Ft. R. R. Co. (118 N. Y. 556), 338. 341, 355. Leigh V. Newburgh Ry. Co. (41 App. Div. (N. Y.) 218). 332. V. Omaha St. Ry. Co. (36 Neb. 131), 414. Lejee v. Continental Pass. Ry. Co. (10 Phila. 362), 39, 49. Lemont v. Washington & George- town Ry. Co. (1 Mackey 180), 368. Lenker v. Citizens' Trac. Co. (179 Pa. St. 486), 316. Lesan v. Maine Central R. R. Co. (77 Me. 85), 301, 381. Lesser v. Ft.. Loi'is Ry. Co. (85 Mo. Ann. R'6), 336. Level^rnplpr v. St. Tr)i'if! Ry. Co. (114 Mo. Atit,. 412), 457. Levi V. T yim & Tir.s+nTi Ry. Co. (11 Allen !'nn>. s'^. 468. Levin V. Mptr'^"olitiri St. Ry. Co. nan Mo. fi9/t\ 3S7. V. New York Flev. R. R. Co. (165 N. Y. 572), 209. i'A^LE OF CASES. Ixix Beferences are to Sections. Levin V. Second Ave. Trac. Co. (194 Pa. St. 15G), 351. Levine v. Metropolitan St. Ry. Co. (78 App. Dlv. (N. Y.) 42G), 387. Levy V. Dry Dock, East Broadway & Battery R. R. Co. (12 N. Y. Supp. 485; 58 Hun 610), 306, 307, 310, 389. Lewis V. Eastern R. R. Co. (60 N. H. 187), 298. Lewke v. Dry Dock, East Broadway & Battery R. R. Co. (46 Hun 283), 397. Lexington & Big Sandy R. R. Co. V. Combs (10 Bush. (Ky.) 382), 102. Lexington & West Cambridge R. R. Co. V. Fltchburgti (14 Gray 266), 116. Lexington Ry. Co. v. Cozlne (111 Ky. 799), 410. Lezinsky v. Metropolitan St. Ry. Co. (88 Fed. Rep. 437), 373. Llbermann v. Chicago & S. S'. R. T. R. R. Co. (30 N. E. Rep. 544), 152. Llbmann v. Manhattan Ry. Co. (59 Hun 428), 191, 205. Liddy v. St. Louis R. R. Co. (40 Mo. 506), 226, 305, 306, 311, 317, 359. Lledman v. Staten Is. Midland Ry. Co. (18 App. Dlv. (N. Y.) 368), 107. Lightfoot V. Winnebago Trac. Co. (123 Wis. 479), 393. Lima Ry. Co. v. Little (67 Ohio St. 91), 372, 411. Linden Land Co. v. Milwaukee Elec. Ry. Co. (107 Wis. 493), 6, 9, 12, ?4, 78. 90, 468. Lincoln St. Ry. Co. v. Adams (41 Neb. 737), 97. V. Cox (48 Neb. 807), 132. 413. v. McClellan (54 Neb. 672), 361, 381. V. Lincoln (61 Neb. 109.). 6, 28. Llnnehan v. Sampson (i26 Mass. 506), 382. Linn County v. Hewitt (55 Iowa 505), 54. Lion v. Baltimore Ci*y Pass. Ry. Co. (90 Md. 266), 97. Lionbprger v. Rowse (43 Mo. 67), 274. Little V. Boston Ry. Co. (72 N. H. 502), 380. V. Hackett (116 U. S. 366), 393. V. Streot Pv. Co. of nraid Rap- Ids (78 Mich. 205), 300, 314. Little Miami R. R. Co. v. Hamilton (40 Ohio St. 496), 102. Little Miami, C. & X. R. R. Co. v. Dayton (23 Ohio St. 510), 118. Little Rock v. Citizens' S't. Ry. Co. (16 S. W. Rep. 17), 71. Little Rock Trac. Co. v. Billings (173 Fed. Rep. 903), 395. V. Harrell (58 Ark. 454), 363. V. Hicks (79 Ark. 248), 459. V. Nelson (66 Ark. 494), 365. V. Newman (77 Ark. 599), 459. V. North Little Rock (76 Ark. 48), 436. V. Trainer (68 Ark. 106), 237. Little Saw Mill Valley Turnpike v. Federal St. Pass. Ry. Co. (194 Pa. St. 144), 33, 449. Livingston v. Metropolitan Ele- vated Ry. Co. (18 N. Y. Supp. 203), 208. Lockhart v. Craig St. Ry. Co. (139 Pa. St. 419), 13. 16, 82, 83, 91, 100, 127. V. Lichtenthaler (46 Pa. St. 151), 393. Lockwcod V. Belle City Ry. Co. (92 Wis. 97), 315. Logan V. Hannibal & St. Joseph R. R. Co. (77 Mo. 663), 410. V. Pyne (43 Iowa 524), 17. Logansport Ry. Co. v. Logansport (114 Fed. Rep. 688), 14, 17. Logwood V. Memphis & C. R. R. Co. (23 Fed. Rep. 318), 325. Lombardl v. California St. Ry. Co. (124 Cal. 311), 409. Lonaconing By. Co. v. Consol. Coal Co. (95 Md. 630), 83, 441. Long V. Township of Milford, (137 Pa. St. 122). 378, 379. LongenecVpr v. Wj'-hito T?y. Co. (80 Kan. 413), 56, 57, 100. Looney v. Metropolit'n By. Co. (24 App. Cas. (D. C.) 510), 110. Loornm v. Third Ave R. B. Co. (57 N. Y. Super. 165), 409. Lopez de Lonez v. Central Arizona Mining Co. (1 Ariz. 464), 381. Lorain St. By. Co. v. Sinning (17 Ohio C. C. 649), 107. Loraine Ftpel Co. v. Bristol St. Ry. Co. (187 Mas=!. 500), 272 Lord V. Tiffsnv (98 N. Y. 412'), 406. Lorie v. Cincinnati (16 W. L. B. 355), 84. V. North Chicago City Py, Co. (32 Fed. Rep. 270), 91, 100. Los Angeles By. Co. v. Los Angeles (152 Cal. 242), 29, 47. J XX TABLE OF CASES. Befereuces are to Sections. Los Angeles Trac. Co. v. Wilshire (135 Cal. 654), 110. Losee v. Watervliet Turnpike Co. (18 N. Y. Supp. 297), 349. Lott V. Frankford Ry. Co. (159 Pa. St. 471), 298. V. New Orleans City & Lake R. R. Co. (37 La. Ann. 337), 374. Loudoun V. Eighth Ave. Ry. Co. (162 N. Y. 381). 361. Louisville Bagg. Manf. Co. v. Cen- tral Pass. Ry. Co. (95 Ky. 50), 67, 82, 83, 127. Louisville, Cincinnati & Lexington R. R. Co. V. Case (9 Bush. 728), 362, 393. V. Sullivan (81 Ky. 624), 395. Louisville City Ry. Co. v. Central Pass. R. R. Co. (87 Ky. 223; 10 Ky. Law Rep. 125), 109, 110, 114, 116. V. Louisville (4 Bush. 478), 269, 272, 284, 285. V. Louisville (8 Bush. 415), 222, 253. V. Weams (80 Ky. 420), 328. V. Wood (2 Ky. Law Rep. 387), 306. Louisville, E. & St. L. R. R. Co. v. Summers (30 N. B. Rep. 873), 381. Louisville & Frankfort Ry. Co. v. Brown (7 B. Mon. 763), 78. Louisville & Nashville R. R. Co. v. Bate (12 Lea 573), 271. v. Mississippi & Tenn. Ry. Co. (92 Tenn. 681), 69. V. Mobile J. & K. C. Ry. Co. (124 Ala. 162), 6, 14. Louisville, Nashville & Gt. Southern R. R. Co. V. Fleming (14 Lea 128), 379. Louisville, New Albany & Chicago Ry. Co. V. Boney (117 Ind. 501), 429. V. Buck (116 Ind. 566), 398. V. Creek (14 L. R. A. 733), 392. Louisville, New Orleans & Texas Ry. Co. V. State of Mississippi (133 U. S. 587; 10 S>up. Ct. Rep. 348), 325. Louisville & Portland R, R. Co. v. Louisville City R. R. Co. (2 Duvall 175), 6, 56, 108, 113. Louisville Ry. Co. v. Casey (24 Ky. Law Rep. 1527), 409. V. Commonwealth (105 Ky. 710), 273. V. Commonwealth (130 Ky. 738), 425, 432, 451. - Louisville Ry. Co. v. Foster (108 Ky. 743), 91. V. French (24 Ky. Law Rep. 1278), 306. V. Goar (112 S. W. Rep. 1130), 385. V. Haynes (128 S. W. Rep. 1055), 412. V. McCarthy (129 Ky. 814), 392. V. Park (96 Ky. 580), 328, 332. Louisville R. R. Co. v. Anchors (114 Ala. 492), 432, 450. V. Bowling Green R. R. Co. (110 Ky. 788). 450. Louisville Trust Co. v. Cincinnati (76 Fed. Rep. 296), 15, 17, 51, 69. Lonergan v. Lafayette St. Ry. Co. (Cir. Ct. Lafayette, Ind., July, 1890, 15 N. J. L. J. 233), 298. Lovett V. Salem & S'outh Danvers R. R. Co. (9 Allen 557), 337, 371, 385. Lowrey v. Brooklyn City R. R. Co. (4 Abb. N. C. 32), 243, 262. V. Brooklyn City & Newtown R. R. Co. (76 N. Y. 28), 426. V. Manhattan Ry. Co. (12 Daly 431), 211. Luby V. Hudson River R. R. Co. (17 N. Y. 131), 399. Lucas V. Detroit Citv Ry. Co. (52 N. W. Rep. 745), 349 Lukens v. Staten Island Ry. Co. (64 App. Div. (N. Y.) 327), 290. Lumis V. Phlla. Trac. Co. (181 Pa. St. 268), 311. Lundeen v. Livingston Elec. L. Co. (17 Mont. 32), 133. Lundqulst v. Duluth St. Ry. Co. (65 Minn. 387), 412. Lycett V. Manhattan Ry. Co. (12 App. Div. (N. Y.) 326), 214. Lynch v. Brooklyn City R. R. Co. (5 N. Y. Supp. 311; 123 N. Y. 067), 322. V. Metropolitan Elevated Ry. Co. (129 N. Y. 274), 205. V. Metropolitan Elevated R. R- Co. (90 N. Y. 77), 373. V. Metropolitan St. Rv. Co. (89 App. Div. (N. Y.) 217), 415. Lynam v. Union Ry. Co. (114 Mass. 83), 316. Lynn & Boston R. R. Co. v. Bostan & Maine R. R. Co. (114 Mass. 88), 114. Lyons v. Bay Citi's Consol Ry. Co. (115 Mich. 114), 310. V. Broadway & Seventh Ave. R. R. Co. (10 N. Y. 237), 372 TABLE OF CASES. Ixxi References are to Sections. Lyons v. Desotelle (124 Mass. 387), 366. V. New York Blec. R. R. Co. (2G App. Div. (N. Y.) 57), 209. M Macdonell v. British Columbia Ry. Co. (9 Brit. Columbia Rep. 542), 92. Macher v. Pittsburg Ry. Co. (13 Pa. Super. Ct. 642), 349. Mack V. Lombard & South ft. Pass. R. R. Co. (8 Pa. Co. Ct. Rep. 305), 387, 390. Mackey v. City of Vlcksburg (G4 Miss. 777), 385. V. Phila. & West Chester Trac. Co. (227 Pa. St. 482), 300. Mackin v. People's St. Ry. Co. (45 Mo. App. 82), 332. Macklot V. City of Davenport (17 Iowa 383), 267. Macon v. Harris (75 Ga. 761), 8. Macon & Western R. R. Co. v. Davis (27 Ga. 113), 379. Macon St. Ry. Co. v. Barnes (113 Ga. 212), 328. V. Holmes (103 Ga. 653), 379. V. Macon (112 Ga. 782), 13, 29, 62. Macy V Metropolitan Elevated Rv. Co. (59 Hun 365; 12 N. Y. Supp. 804), 191. V. New Bedford Ry. Co. (IS 2 Mass. 291), 319. Mader v. Halifax Elec. Tram. Co. (37 Nova Scotia Rep. 546), 294 Magill V. Cleveland Trac. Co. (79 Ohio St. 203), 415. Maguire v. Middlesex R. R. Co. (115 Mass. 239), 336, 338, 341. Mahady v. Bushwick R. R. Co. (91 N. Y. 148), 77, 80, 82, 91, 100, 187. Mahan v. Union Depot St. Ry. Co. (34 Minn. 29), 229. Maher v. Central Park, N. & B. River R. R. Co. (67 N. Y. 52), 336, 343, 385. V. Manhattan Ry. Co. (53 Hun 506), 211. Mahew v. Burns (103 Ind. 328), 388. Mahnke v. New Orleans Ry. Co. (104 La. 411), 290. Mahon v. New York Central R. R. Co. (24 N. Y. 658), 78, 99. Mahoney v. Metropolitan R. R. Co. (104 Mass. 73), 294, 317. Mahoney v. Natick & Cochltuate St. Ry. Co. (173 Mass. 587), 292. V. San Francisco Ry. Co. (110 Cal. 471), 316. Mahoning Valley Ry. Co. v. Hous- ton (29 Ohio C. C. 358), 298. V. De Pascale (70 Ohio St. 179), 410. Maine C. R. R. v. Waterville & F. Ry. Co. (89 Me. 328), 114. Maisels v. Dry Dock Ry. Co. (16 App. Div. (N. Y.) 392), 337. Malcolm v. Metropolitan Elevated Ry. Co. (13 N. Y. Supp. 283), 209. V. New York Elev. R. R. Co. (147 N. Y. 308), 195. Mallard v. Ninth Ave. R. R. Co. ( 27 N. Y. St. Rep. 901; 7 N. Y. Supp. 666), 305, 310, 385. Malott V. CollinsYlIle Ry. Co. (108 Fed. Rep. 313), 1, 118, 430, 432, 433, 446. Maltby v. Reading & Columbia R. R. Co. (52 Pa. St. 140), 274. Mammerberg v. Metropolitan St. Ry. Co. (62 Mo. App. 563), 403. Manahan v. Steinway & Hunter's Point R. R. Co. (125 N. Y. 760) 385. Manchester v. City of Hartford (30 Conn. 118), 75. Manchester, S. J. & A. Ry. Co. v. FuUarton (14 C. B. N. S. 54), 298. Mangam v. Brooklyn R. R. Co. (36 Barb. 130), 385, 387, 389, 390. V. Brooklyn R. R. Co. (38 N. Y. 455), 305, 306, 307, 310, 385, 387, 389. Mangan v. Hudson River Teleph. Co. (10 N. Y. Supp. 539), 363. Manhattan Ry. Co. v. Barker (146 N. Y. 304), 273. V. Cornell (54 Hun 292), 218. V. O'Sullivan (6 App. Div. (N. Y.) 571), 196. V. Taber (78 Hun 434), 106. Manhattan Trust Co. v. Sioux City Cable Ry. Co. (68 Fed. Rep. 82), 1. Manitowoc v. Manitowoc Trac. Co. (129 N. W. Rep. 925), 468. Manning v. New York Elevated R. R. Co. (9 N. Y. Supp. 522), 208. v. West End St. Ry. Co. (166 Mass. 230), 133. Manson v. Manhattan Ry. Co. (55 N. Y. Super. 18), 211. Ixxii TABLE OF CASES. References are to Sections. Mantel v. Chicago, Milwaukee & St. Paul Ey. Co. (33 Minn. C2), 403. Manton v. South Shore Co. (106 N. Y. Supp. 82), 47. Marhle v. Ross (124 Mass. 44), 379. Marchal v. Indianapolis St. Ry. Co. (28 Ind. App. 133), 304. Marlon v. Cedar Rapids Ry. Co. (120 Iowa 259), 273. Market St. Ry. Co. v. Central Ry. Co. (51 Cal. 583), 47, 82, 114. V. McKcever (93 Cal. 179), 315. Market St. Pass. Ry. Co. v. Unlin ■Pass. R. R. Co. (10 Phila. 43), 108, 114. Markey v. Consolidated Trac. Co. (05 N. J. L. 82), 385, 389. Marks v. Rochester Ry. Co. (77 Hun 77), 413. Marland v. Railroad Co. (123 Pa. St. 487), 315. Marmet v. State (45 Ohio St. 63), 220. Marsh V. Kings Co. Elec. R. R. Ca. (8G Fed. Rep. 189), 191. V. Lake Shore Elei. Ry. Co. (28 Ohio C. C. 9), 133, 135, p. 205; 301. V. Milwaukee Trac. Co. (134 Wis. 384), 442, 447, 473. Martin v. Manhattan Ry. Co. (03 Hun 350), 206. V. Chicago Ry. Co. (220 111. 97), 447. V. Cincinnati Trac. Co. (10 Ohio C. C. 528), 415. V. Columbia Elec. St. Ry. Co. (66 S. E. Rep. 993), 320. V. Second & Third St. Pass. Ry. Co. (3 Phila. 316), 65. Marzetti v. Harlem River R. R. Co. (3 E. D. Smith 98), 292. Maschek v. St. Louis R. R. Co. (71 Mo. 276), 305, 306. Mason v. Brooklyn City & Newton R. R. Co. (35 Barb. 373), 34. Mass. Loan & Trust Co. v. Hamil- ton (88 Fed. Rep. 598), 1. Massey v. Metropolitan Elevated Ry. Co. (59 Hun 365), 191. Massillon Bridge Co. v. Cambria Iron Co. (59 Ohio St. 179), 1. Massy v. Milwaukee Elec. Ry. & L Co. (126 N. W. Rep. 544), 415. Masterson v. Macon City & Subur- ban St. R. R. Co. (88 Ga. 436), 337. V. New York Central & Hudson River R. R. Co. (84 N. Y. 247), 393. Mathers v. Kerper (3 W. L. B. 551), 7. Mathes v. Lowell St. Ry. Co. (177 Mass. 416), 311. Mathieson v. Omaha St. Ry. Co. (92 N. W. Rep. 639), 403. Matter of Joralemon Subway (197 N. Y. 81), 441. Matthews v. Delaware, L. & W. R. R. Co. (56 N. J. L. 34), 363. V. London St. Tramway Co. (60 L. T. R. 47), 362. Mattladge v. New York Elevated R. R. Co. (17 N. Y. Supp. 536), 190, 197, 200. V. New York Elevated R. R. Co. (14 Daly 1), 161, 190. V. New York Elevated R. R. Co. (11 N. Y. Supp. 482), 190, 206. Mauer v. Brooklyn Heights Ry. Co. (87 App. DIv. (N. Y.) 119), 310. Maumee "Valley Rys. & Elec. Co. v. Montgomery (81 Ohio St 426), 363. Maverick v. Eighth Ave. R. R. Co. (36 N. Y. 378), 328. May V. Carbondale Trac. Co. (167 Pa. St. 343), 30. V. Inhabitants of Princeton (11 Mete. 442), 381. Mayberry v. Railway Co. (9 W. N. C. 404), 263, 264. Mayfleld W. & L. Co. v. Webbs (129 Ky. 395), 292. Mayo V. Boston & Maine R. R. Co. (104 Mass. 137), 346. Mayor of Baltimore v. Balto. & Yorktown T. Ry. Co. (80 Md. 535), 71. V. Balto. Pass. Ry. Co. (84 Md. 1), 449, 452. Mayor v. Broadway & Seventh Ave. R. R. Co. (97 N. Y. 275), 281, 282, 287. V. Dry Dock, E. B. & B. Ry. Co. (47 Hun 199, affd. 112 N. Y. 137), 282, 286, 287. V. Prv Dock, P. B. & B. R. R. Co. (112 N. Y. 137), 281. 282. V. Drv Dock, F. B. & B. R. R. Co. (133 N. Y. 104), 224, 234. V. Eighth Ave. R. R. Co. (7 App. D'v. rN Y.) 84V 252. v. Fitch (9 App. Div. (N. Y.) 452), 25. v. Johns Hopkins Hospital (56 Mfl. 1). 241. 254, 2.57. V. Kerr f38 Barb. 369), 82. V. New York & Harlem R. R. Co. (19 N. Y. Supp. 67), 252. TABLE OF CASES. Ixxiii References are to Sections. Mayor v. Norwich & Worcester R. R. Co. (109 Mass. 103), 37, 119. V. Oh.o & Pennsylvania Ry. Co. (2G Pa. St. 355), G7. V. Scharf (54 Md. 499), 241, 254, 257. V. Second Ave. Ry. Co. (102 N. Y. 572), 246, 250, 251, 254, 257, 258. V. Second Ave. R. R. Co. (32 N. Y. 2G1), 5, 17, 279, 280, 283. V. Second Ave. R. R. Co. (34 Barb. 41), 279, 280. V. Third Ave. R. R. Co. (117 N. Y. 404), 281. v. Third Ave. R. R. Co. (33 N. Y. 4''V 279. 280. 283. V. Thirty-Third St. R. R. Co. (48 Hun 552), 270, 42G. V. Troy & Lansingburg R. R. Co. (49 N. Y. 657), 256. V. Twenty-Third St. Ry. Co. (113 N. Y. 311), 36, 270, 288. Mays V. C.ty of Cincinnati (1 Ohio St. 268), 280. McAdam v. Central Ry. & Elec. Co. (67 Conn. 445), 132, 415. McAndrews v. St. Louis Sub. Ry. Co. (83 Mo. App. 233), 226. McAunich v. Misslss'ppi & M. R. R. Co. (20 Iowa 343), 232. McBride v. St. Paul City Ry. Co. (72 Minn. 291), 348. McCaffrey v. Twenty-Third St. R. R. Co. (47 Hun 404), 296. McCahill v. Detroit City Ry. Co. (96 Mich. 156), 365. McCallum v. long Island R. R. Co. (38 Hun 569), 362. V. Odette (7 Can. Sup. Ct. 36), 379. McCambley v. Staten Is. Ry. Co. (32 App. Dlv. (N. Y.) 346), 305. McCann v. Consol. Trac. Co. (59 N. J. L. 481), 298. V. South Nashville St. R. R. Co. (2 Tenn. Ch. 773), 65, 234. v. Sixth Ave. R. R. Co. (117 N. Y. 505; revsg. 56 N. Y. Super. 282), 365, 372, 385. McCarthy v. Cass Ave. & Fair- ground Ry. Co. (92 Mo. 536; 4 S. W. Rep. 516), 307, 310, 385. V. Consolidated Ry. Co. (79 Conn. 73) 303 V. DeArmit (99 Pa. St. 63), 410. V. Detroit City Ry. Co. (120 Mich. 400), 346. McCauley v. Springfield St. Ry. Co. (169 Mass. 301), 413. McClaln v. Brooklyn City R. R. Co. (116 N. Y. 459; 27 N. Y. St. Rep. 549), 311, 312. McClellan v. Brooklyn Heights Ry. Co. (89 App. Div. (N. Y.) 622), 3S1. V. Chippewa Valley Ry. Co. (110 Wis. 326), 315. V. Ft. Wayne Ry. Co. (105 Mich. 101), 399. McClure v. Philadelphia, W. & B. R. R. Co. (34 Md. 532), 237. McColgan v. Balto. Belt Ry. Co. (85 Md. 519), 422. McCormack v. Sydney & G. Bay Ry. Co. (37 Nova Scotia Rep. 354), 332. McCoy V. Milwaukee St. Ry. Co. (88 Wis. 56), 306. McCready v. Metropolitan Elev. Ry. Co. (76 Hun 531), 195. McCreery v. United Rys. Co. (221 Mo. 18), 297. McCully V. Clark (4 W. N. C. 186), 306. McCurdy v. United Trac. Co. (15 Pa. Super. Ct. 29), 348. McDade v. Washington & George- town R. R. Co. (5 Mackey 144), 412. McDermott v. Boston El. Ry. Co. (184 Mass. 126), 385. V. Third Ave. R. R. Co. (44 Hun 107), 403. McDonald v. Brooklyn Heights Ry. Co. (51 App. Div. (N. Y.) 186), 403. V. Chicas-o & N. W. R. R. Co. (26 Iowa 124), 326. V. Kansas City Cable Ry. Co. (32 Mo. App. 70), 348, 349. V. Metropolitan St. Ry. Co. (80 App. Div. (N. Y.), 233), 385. V. Metropolitan St. Ry. Co. (93 App. Div. (N. Y.), 238), 380. V. Toledo Consol. St. Ry. Co. (74 Fed. Rep. 104), 294. McDonough v. Metropolitan R. R. Co. (137 Mass. 210), 326, 336, 366, McDougall V. Central R. R. Co. (63 Cal. 431), 381. McElroy v. Mainhatan Ry. Co. (6 App. Div. (N. Y.) 367), 195, 200. McFadden v. Santa Anna, Orange & Tnstin St. Ry. Co. (87 Cal. 464), 392 McFarl'and v. Elmlra Ry. Co. (120 N. Y. Supp. 292), 305, 385. V. Orange & Newark Horse Car R. R. Co. (13 N. J. Eq. 17), 33, 34. V. Washington Ry. Co. (18 App. Cas. (D. C.) 456), 56. McGarry v. Holyoke St. Ry. Co. (182 Mass. 123), 369. Ixxiv TABLE OF CASES. Keferences are to Sections. MoGay v. Manhattan Ry. Co. (16 N. Y. Supp. 155), 208. \ McGean v. Metropolitan Elevated Ry. Co. (14 N. Y. Supp. 761), 191. V. Manhattan Ry. Co. (117 N. Y. 219), 208, 209. McGearty v. Manhattan Ry. Co. (15 App. Div. (N. Y.) 2), 214. McGee v. Boston Elev. Ry. Co. (187 Mass. 569), 211. V. Consol. St. Ry. Co. (102 Mich. 107), 299. V. West End St. Ry. Co. (151 Mass. 240), 318. McGehee v. Shaffer (15 Tex. 198), 406. McGill V. Cleveland Trac. Co. (79 Ohio St. 203), 413. McGilvray v. West End. St. Ry. Co. (164 Mass. 122), 372. McGovern v. Interurhan R. Co. (136 la. 13), 463. McGrath v. New York Central & Hudson River R. R. Co. (63 N. Y. 522), 301, 359. V. New York Central & Hudson River R. R. Co. (59 N. Y. 468), 301. McGuinn v. Forbes (37 Fed. Rep. 639), 325. McHale v. Easton Ry. Co. (169 Pa. St. 416), 92. McHugh V. Manhattan Ry. Co. (88 App. Div. (N. Y.) 554), 412. Mclntire St. Ry. Co. v. Bolton, (43 Ohio St. 224), 326, 412. McKee v. Bidwell (74 Pa. St. 218), 402. McKeesport v. McKeesport Ry. Co. (158 Pa. St. 447), 253. V. McKeesport & R. Pass. Ry. Co. (2 Pa. Super. Ct. 242), 29. V. Pittsburg Ry. Co. (213 Pa. St. 252), 242, 254. McKeever v. Market St. R. R. Co. (59 Cal. 294), 409. McKenna v. Metropolitan R. R. Co. (112 Mass. 55), 292. V. North Hudson Co. Ry. Co. (64 N. J. L. 106), 216. McKeon v. Citizens' Ry. Co. (42 Mo. 79), 222, 227, 372. V. Connecticut Ry. Co. (75 Atl Rep. 139), 309. McKernan v. Manhattan Ry. Co. (54 N. Y. Super. 354), 217. ' McKey v. Grand Rapids & Reed's Lake St. Ry. Co. (41 Mich. 274), 427. McKillop V. Duluth St. Ry. Co. (53 Minn. 532), 255, McKimble v. Boston & Maine R. R. Co. (139 Mass. 542), 326. McKinley v. Metropolitan St. Ry. Co. (77 App. Div. (N. Y.) 256), 312. McLaughlin v. Atlantic Ave. R. R. Co. (12 N. Y. Supp. 453), 337, 349. V. Chadwell (7 Heisk. 389), 274. V. Phila. Trac. Co. (175 Pa. St. 565), 291. V. West End St. Ry. Co. (186 Mass. 150), 425. McLeod V. Chicago Trac. Co. (125 la. 270), 412, 470. McMahon v. Lynn Ry. Co. (191 Mass. 295), 242. V. Northern Central Ry. Co. (39 Md. 438), 385, 389. V. New York (33 N. Y. 642), 385, 391. V. New York Elevated R. R. Co. (50 N. Y. Super. 507), 214. V. Second Ave. R. R. Co. (75 N. Y. 231; 11 Hun 247), 250, 262, 290, 291. McManigal v. South Side Pass. Ry. Co. (181 Pa. St. 358), 298. McMillan v. Federal St. Ry. Co. (172 Pa. St. 523), 357. McNab V. tJnited Rys. Co. (94 Md. 719), 305, 431, 455, 456, 458. McNaier v. Manhattan Ry. Co. (46 Hun 502), 211. McNiel V. Chicago City Ry. Co. (61 111. 150), 46, 47. McNulta V. Ralston (5 Ohio C. C. 330), 78, 79. McQuade v. Manhattan Ry. Co. (53 N. Y. Super. 91), 216. v. St. Louis Ry. Co. (200 Mo. 150), 432, 472. McQuaid v. Portland & Van Couver Ry. Co. (18 Ore. 237), 77, 82, 92, 94. McQuilkin v. Central Pacific R. R. Co. (64 Cal. 463), 346. McRickard v. Flint (114 N. Y. 222), 402. McSwyny v. Broadway & Seventh Ave. R. R. Co. (7 N. Y. Supp. 45G), 336, 348. Meagher v. People's & Tower Grove Ry. Co. (14 Mo. App. 499), 419. Mechanics' Bank v. Debolt- (18 How. 380), 268. Mechanicsburgh v. Meredith (54 111. 84), 255. Medford & Charlestown R. R. Co. V. Sommerville (111 Mass. 232), 40. TABLE OF CASES. Ixxv Beferences are to Sections. Medler v. Atlantic Ave. R. R. Co. (12 N. Y. Supp. 930; 126 N. Y. 669), 345, 347, 350. Meehan v. Holyoke St. Ry. Co. (1S6 Mass. 511), 415. Meeker v. C. D. & M. Trac. Co. (31 Ohio C. C. 346), 465. Meesel v. Lynn & Boston R. R. Co. (8 Allen 234), 336, 339. Meisch v. Rochester Ry. Co. (72 Hun 604), 309. Mellen v. Old Colony St. Ry. Co. (184 Mass. 399), 387. Mellwltz V. Manhattan Ry. Co. (17 N. Y. Supp. 112), 216. Memphis City Ry. Co. v. Logue (13 Lea 32), 299. V. Memphis (4 Colw. 40G), 3. Memphis v. Ensley (6 Baxter 553), 274. V. Water Co. (5 Tenn. 495), 7o. Memphis & Little Rock R. R. Ci. V. Railroad Commissioners (112 U. S. 609), 422, 423, 427. Memphis, Prospect Park & Belt R. T. Co. V. State (87 Tenn. 746), 243, 250, 260. Memphis St. Ry. Co. v. Kartright (110 Tenn. 277), 292. Mendoza v. Metropolitan Ry. Co. (48 App. Div. (N. Y.) 62), 233. Mentz V. Second Ave. R. R. Co. (2 Robt. 356), 307, 312. Mercantile T. & D. Co. v. Col' Ins Pk. R. Co. (99 Fed. Rep. 812), 40. V. Collins Pk. Ry. Co. (101 Fed. Rep. 347), 29, 110, 111, 115. Mercer Co. Trac. Co. v. United N. J. Co. (64 N. J. Eq. 588; 65 N. J. Eq. 574), 18, 21, 109. v. United Ry. Co. (68 N. J. Eq. 715), 434, 438. Merchant v. South Chicago Ry. Co. (104 111. App. 104), 328. Merchants Insurance Co. v. City of Newark (54 N. J. L. 138), 274. Mercier v. New Orlears & Carro'l- ton R. R. Co. (23 La. Ann. 264), 315, 317. Meriwether v. Kansas City Cable Ry. Co. (45 Mo. App. 528), 348. Merrick v. Intramontaine Ry. Co. (118 N. C. 1081), 83. Merrill v. Eastern R. R. Co. (139 Mass. 252 )j 381. Merritt v. Foate (128 Mich. 367), 315. Mersick v. Hartford Horse R. R. Co. (76 Conn. 11), 475. Mertz V. Detroit Elec. Ry. Co. (125 Mich. 11), 315. Merwin v. Manhattan Ry. Co. (48 Hun 608), 216, 355. Merz V. Missouri P. Ry. (88 Mo. 672), 220. Messenger v. Manhattan Ry. Co. (129 N. Y. 502), 190, 191. Messinger v. St. Paul City Ry. Co. (77 Minn. 34), 361. Metropolitan City Ry. Co. v. Chi- cago (96 111. 620), 11. V. Chicago West Div. Ry. Co. (87 111. 317), 6, 105, 118. Metropolitan Elevated R. R. Co. v. Dominick (55 Hun 198), 171. V. Levy (13 N. Y. Supp. 367), 177, 181. v. Siefpe (15 N. Y. Supp. 224), 178. Metropolitan R. R. Co. v. Broadway R. R. Co. (99 Mass. 238), 114, 115. Metropolitan Ry. Co. v. Hammett (13 App. Cas. (D. C.) 370), 304. V. Highland St. Ry. Co. (118 Mass. 290), 114, 116, 119. V. Jones (1 App. Cas. (D. C.) 200), 349. Metropolitan St. Ry. Co. v. Moore (83 Ga. 453), 326, 351. V. New York (199 U. S. 1), 268. V. Quincy R. R. Co. (12 Allen 262), 110, 114, 115, 116. V. Rouch (66 Kan. 195), 316. V. Tax Commissioners (199 U. S. 1), 273. Metropolitan West Side El. Ry. Co. V. Gall (100 111. App. 323), 190. V. Kersey (80 111. App. 301), 389. V. McDonough (87 111. App. 31), 211. V. Skola (183 111. 454), 412. V. Springer (171 111. 170), 195. V. Stickney (150 111. 362), 195. V. White (166 111. 375), 195, 208. Mettlestadt v. Ninth Ave. R. R. Co. (4 Robt. 377), 337. Meyer v. Lindell Ry. Co. (6 Mo. App. 27), 307, 312, 319. V. Milwaukee Ry. Co. (116 Wis. 366), 348. V. People's Ry. Co. (43 Mo. 523), 378. V. Second Ave. R. R. Co. (8 Bosw. 305), 367, 372. Miami & Montgomery Turnpike Co. V. Bailey (37 Ohio St. 104), 407. Michigan Cent. R. R. Co. v. Ham- mond Ry. Co. (42 Ind. App. 66), 440, 441. Ixxvi TABtE Of CASES. References are Middlesex R. R. Co. v. Boston & Chelsea R. R. Co. (115 Mass. 347), 422, 424, 425. V. Charleston (8 Allen 330), 272, 274. Mlgans V. Jersey City Ry. Co. (76 N. J. L. 535), 303. Mikesell v. Durkee (34 Kan. 509), 8. Milhau V. Sharp (15 Barb. 193), 14,91. V. Sharp (17 Barb. 435), 14, 91, 222 233 V. Sharp (27 N. Y. 611), 12, 16. V. Sharp (28 Barb. 228), 91. Millard v. West End St. Ry. Co. (173 Mass. 512), 415. Mlllhridge v. Cherryfleld Elec. Ry. Co. (96 Me. 110), 3. Millcreek v. Erie Ry. Co. (216 Pa. St. 132; 209 Pa. St. 300), 45, 439. Milldam Foundry Co. v. Hovey (21 Pick. 417), 405. Miller v. Chickering (101 N. Y. 396), 413. V. Cincinnati Ry. Co. (43 Ind. App. 540), 440, 442, 446, 447, 473. V. Detroit Ry. Co. (125 Mich. 171), 91, 443, 453. V. Louisville New Albany & Chi- cago R. R. Co. (128 Ind. 97), 392. V. N. Y. & Erie R. R. Co. (21 Barb. 513), 220. V. State (15 Wall. 478), 4. V. St. Louis R. R. Co. (5 Mo. App. 471), 361, 404. V. St. Paul City Ry. Co. (42 Minn. 454), 313, 346. Mills V. Armstrong (L. R. 13 App. Cas. 1), 393. V. Wilmington Ry. Co. (1 Marv. (Del.) 269), 290. Millvale v. Evergreen R. R. Co. (131 Pa. St. 1), 1, 70, 72, 103. Millvllle Trac. Co. v. Goodwin (53 N. J. Eq. 448), 42. Milwaukee v. Milwaukee & Beloit R. R. Co. (7 Wis. 85), 3. Milwaukee Elec. Ry. Co. v. Milwau- kee (87 Fed. Rep. 577), 233. V. Milwaukee (95 Wis. 39), 49, 267. Milwaukee St. Ry. Co. v. Adlam (85 Wis. 142), 42. Minersvllle Boro. v. Schuylkill Elec. Ry. Co. (205 Pa. St. 394), 436. Minneapolis St. Ry. Co. v. Chicago, Minneapolis & St. Paul R. R. Co. (33 Minn. 62), 301. Minneapolis v. Minneapolis St. Ry. Co. (215 U. S. 417), 15, 17, 40. Minster v. Citizens' St. Ry. Co. (53 Mo. App. 276), 393. to Sections. Missouri Ry. Co. v. Olathe (156 Fed. Rep. 624), 40. . „ „ Minton v. New York Elevated R. R. Co. (130 N. Y. 332), 201. Missouri Furnace Co. v. Abend (107 111. 441), 381. Missouri Pacific Ry. Co. v. Evans (71 Tex. 361), 328, 395. V. Lee (70 Tex. 496), 300. V. McCally (41 Kan. 639), 381. Missouri v. McDonald (7 Mo. App. 510), 372. Mitchell V. Allen (25 Pun 543), 406. V. Chicago & Grand Trunk Ry. Co. (51 Mich. 230), 228, 361. V. Illinois & St. Louis R. R. Co. (68 111. 286), 100. V. Metropolitan Elevated Ry. Co. (56 Hun 543; 9 N. Y. Supp. 329), 198, 201. V. Rochester Ry. Co. (151 N. Y. 107), 408. V. Tacoma Ry. Co. (9 Wash. 120), 310. V. Third Ave. Ry. Co. (62 App. Div. (N. Y.) 371), 311. Mobile V. Mobile St. Ry. Co. (141 Ala. 442), 250. V. Stein (54 Ala. 23). 269. Mobile Ry. Co. v. McKay (163 Ala. Ill), 459. Mobile & Montgomery R. R. Co. v. Ashcraft (48 Ala. 15), 383. Mobile & O. R. R. Co. v. State (51 Miss. 137), 220. Mobile & Spring Hill R. R. Co. v. Kennerly (74 Ala. 566), 267, 269. Mock V. Los Angeles Trac. Co. (139 Cal. 616), 332. Mohack Bridge Co. v. Utica & Schenectady R. R. Co. (6 Paige Ch. 554), 34. Molyneux v. Southwest Mo. Elec. Ry. Co. (81 Mo. App. 25), 298. Monevpenny v. Sixth Ave. R. R. Co. (35 How. Pr. 452), 233. Monlr V. Town of New Utrecht (104 N. Y. 552), 395. Monroe v. Detroit Ry. Co. (143 Mich. 315), 110. V. Gerspach (33 La. Ann. 1011), 238. V. MetroDolitan St. Ry. Co. (79 Aw. Div. (N. Y.) 587), 336. V. Third Ave. R. R. Co. (50 N. Y. Snner. tf), 345. Montclair Military Academy v. No. Jersey St. Ry. Co. (65 N. J. L. 328), 18. V. No. Jersey St. Ry. Co. (70 N. J. L. 229), 27. TABLE OF CASES. Ixxvii Beferences are to Sections. Montgomery v. Buffalo Ry. Co. (24 App. D.v. (N. Y.) 454J, 3G8. V. Lansing Ry. Co. (103 Mich. 46), 311. V. Santa Ana Ry. Co. (104 Cal. 18C). 87, 441. Montgomery Amusement Co. v. Montgomery Trac. Co. (139 Fed. Rep. 350), 40, 430, 431, 433, 446, 448. Montgomery Pt. Rv. Co. v. Mason (133 Ala. 508), 331. V. Smith (146 Ala. 316), 244, 252. Montreal City rass. Ky. Co. v. tier- geron (32 Lower Can. Jur. 255), 348. Montreal Park & Is. Ry. Co. v. Town of St. Louis (17 Que. S. C. 545), 42. Montreal St. Ry. Co. v. Walker (Q. R. 13 Q. B. 324), 408. Moody V. Springfield St. Ry. Co. (182 Mass. 158), 341. Mooney v. New York Elevated R. R. Co. (16 Daly 145; 9 N. Y. Supp. 522), 186, 190, 196. V. New York Elev. Ry. Co. (4 App. Div. (N. Y.) 30), 198. V. New York Elev. R. R. Co. (13 App. Div. (N. Y.) 380), 201. Moore v. Brooklyn City R. R. Co. (31 Hun 90), 56. V. Brooklyn City R. R. Co. (108 N. Y. 98), 44, oO, 184. V. Camden R. R. Co. (20 N. J. L. J. 112), 133. V. Edison Electric Illuminating Co. (9 So. Rep. 433), 344. V. Green & Coates St. R. R. Co. (3 Phila. 210), 30. V. Green & Coates St. Pass. R. R. Co. (3 Phila. 417), 30. V. Haddonfield (62 N. J. L. 386), 28. V. Kansas City Ry. Co. (126 Mo. 265; 128 Mo. 229), 298, 457, 458. V. New York City Ry. Co. (102 N. Y. Supp. 636), 303. V. New York Elevated R. R. Co. (8 N. Y. Supp. 769; 27 Abb. N. C. 74; 15 Daly 510), 196, 209. V. New York Elevated R. R. Co. (12 N. Y. Supp. 552), 208. V. New York Elevated R. R. Co. (130 N. Y. 523), 185, 189, 190. V. New \brk Elevated R. R. Co. (126 N. Y. 671), 199. V. Pqilroad Co. (108 Pa. St. 349), 315. V. St. Louis Trans. Co. (193 Mo. 411), 470. Moran v. Leslie (33 Ind. App. 80), 309. V. Lydecker (27 Hun 582), 101. V. Ross (79 Cal. 159), 103. Mordhurst v. Ft. Wayne Ry. Co. (103 Ind. 268), 430, 441, 442. Morgan v. Camden & Atlantic R. R. Co. (16 Atl. Rep. 353), 346. V. Jersey City & Bergin R. R. Co. (52 N. J. L. 60), 364. Morhart v. North Jersey St. Ry. Co. (64 N. J. L. 236), 290. Morley v. Saginaw Circ. Judge (117 Mich. 246), 427. Moroney v. Brooklyn City R. R. Co. (9 N. Y. Supp. 546), 305, 306. Morris v. Atlantic Ave. R. R. Co. (116 N. Y. 552), 358. 372. V. Chicago, B. & Q. R. R. Co. (45 Iowa 29), 380. V. Second Ave. R. R. Co. (1 Daly 202), 376. V. Spartanburg Ry. Co. (70 S. C. 279), 472. Morris & Essex R. R. Co. v. New York (2 Stock. 352), 78. Morris Ry. Co. v. Newark Pass. Ry. (51 N. J. Eq. 379), 109. Morrison v. Broadway & Seventh Ave. R. R. Co. (28 N. Y. St. Rep. 498; 8 N. Y. Supp. 436), 348. 353. V. Broadway & Seventh Ave. R. R. Co. (130 N. Y. 166), 336. V. Charlotte Elec. Ry. Co. (123 N. C. 414), 349. Morrow v. St. Paul City Ry. Co. (71 Minn. 326). 410. V. Westchester Elec. Ry. Co. (54 App. Div. (N. Y.) 592), 401. Morse v. Consolidated Ry. Co. (81 Conn. 395), 385. V. Minneapolis & St. Louis Ry. Co. (30 Minn. 465), 401, 402. Morseman v. Manhattan Ry. Co. (10 N. Y. Supp. 105), 211. Mortimer v. Manhattan Ry. Co. (129 N. Y. 81), 203. V. Manhattan Rv. Co. (8 N. Y. Supp. 530; 57 N. Y. Supp. 509), 202. V. New York Elevated R. R. Co. (57 N. Y. Suner. 244), 187, 203. Mory v. Oley Valley Ry. Co. (199 Pa. St. 152). 100. Moses V. Pittsburgh, Ft. Wayne & Chicago R. R. Co. (21 111. 516), 34. 78, 80, 87. Moskowltz V. Brooklyn Heights (89 App. Div. (N. Y.) 425), 341. Moss V. Manhattan Ry. Co. (13 N. Y. Supp. 46; 58 Hun 611). 190, 197. Ixxviii TABLE OF CASES. References are to Sections. Moulton V. Gage (138 Mass. 56), 413. j Mt. Adams & Eden Park Inclined ' Ry. Co. V. Reul (4 Ohio C. C. 362), 355. V. Winslow (3 Ohio C. C. 425), 83, \ 91, 127. Mt. Adams Ry. Co. v. Doherty (8 Ohio C. C. 349), 365. Mt. Auburn Cable Ry. Co. v. Neare ; (54 Ohio St. 153), 18, 63. \ Motel V. Sixth Ave. R. R. Co. (2 j How. Pr. N. S. 30; 99 N. Y. 632), | 311, 385. ! Mowrey v. Central City Ry. Co. (66 Barb. 43), 331, 336, 385, 389. V. Indianapolis & Cincinnati R. R. Co. (4 Biss. 78), 38. Moylan v. Second Ave. R. R. Co. (13 N. Y. Supp. 494), 349. V. Second Ave. R. R. Co. (128 N. Y. 583), 336, 347. Muckle V. Rochester Ry. Co. (79 Hun 32), 237. Mudcreek Draining Co. v. State (43 Ind. 236), 44. iluehlhausen v. St. Liouis R. R. Co. (91 Mo. 332), 326, 352. Mueller v. Milwaukee St. Ry. Co. (86 Wis. 340), 316. Muhlhouse v. Monongahela Ry. Co. (201 Pa. St. 237), 334, 355. Mulcahy v. Elec. Trac. Co. (185 Pa. St. 427), 310. Muldowney v. Pittsburg Trac. Co. (8 Pa. Super. Ct. 335), 364. Mulford V. Metropolitan Elevated R. R. Co. (12 N. Y. Supp. 929), 203. Mulhado v. Brooklyn City R. R. Co. (30 N. Y. 370), 349, 407. Mull V. Indianapolis Trac. Co. (169 Ind. 214), 432, 446. Mullan V. Wisconsin Central R. R. Co. (49 N. W. Rep. 249), 374. Mullen V. Metropolitan St. Ry. Co. (89 App. Div. (N. Y.) 21), 413, 415. V. Philadelphia Traction Co. (20 W. N. C. 203), 262, 265. Muller V. Second Ave. R. R. Co. (48 N. Y. Super. 546), 361. MuUin V. Boston Ry. Co. (185 Mass. 522), 408. Munford v. New York Elevated R. R. Co. (17 N. Y. Supp. liii),190. Munn v. Illinois (94 U. S. 113, 145), 220, 232, 280. Munroe v. Third Ave. R. R. Co. (50 N. Y. Super. 114), 337, 345, 349. Murdock V. Oakland Ry. Co. (128 Cal. 22), 413. iiurphy V. Central Park, North & East River R. R. Co. (48 N. Y. Super. 96), 365, 372. v. Chicago (29 111. 279), 16, 78. v. Derby St. Ry. Co. (73 Conn. 249), 391. v. Linden Ry. Co. (153 Mo. 252), 226. V. North Jersey St. Ry. Co. (71 N. J. L. 5), 336. V. People's Ry. Co. (15 Mo. App. 594), 419. V. Suburban Rapid Transit Co. (15 N. Y. Supp. 837), 292. V. Union Ry. Co. (118 Mass. 228), 336, 370, 371. V. Western & A. R. R. Co. (23 Fed. Rep. 637), 325. V. Worcester Consol. St. Ry. Co. (199 Mass. 279), 29. Murray v. Brooklyn City R. R. Co. (27 N. Y. St. Rep. 280; 7 N. Y. Supp. 900), 338, 350. V. Missouri Pacific Ry. Co. (101 Mo. 236), 301. V. Paterson Ry. Co. (61 N. J. L. 301), 310. V. Pontchartrain R. R. Co. (31 La. Ann. 490), 315. V. St. Louis Cable & Western Ry. Co. (98 Mo. 572), 412. Murray Hill Ry. Co. v. Milwaukee Ry. Co. (110 Wis. 555), 92, 443, 445. Musser v. Fairmount & Arch St. Ry. Co. (5 Pa. Law J. Repts. 466; 5 Clark 466), 12, 14. Mutual Telegraph Co. v. Colwell Lead Co. (67 How. Pr. 365), 128. Myers v. Brantford St. Ry. Co. (27 Ontario App. 513), 298. v. Brooklyn Ry. Co. (10 App. Div. (N. Y.) 334), 237. V. Metropolitan Elevated Ry. Co. (19 N. Y. Supp. 223). 209. Alynning v. Detroit, Lansing & Northern R. R. Co. (67 Mich. 677), 381. N Nagel V Linden Ry. Co. (167 Mo. Mo. S9). 75. 77. Nagle V. Allegheny Valley R. R. Co. (88 Pa. St. 35), 385. V. Allegheny Valley R. R. Co. (88 Pa. St. 35), 385. Nalley v. Hartford Carpet Co. (51 Conn. 524), 402. TABLE OP CASES. Ixxix References are to Sections. Nash V. Lowry (37 Minn. 261), 15. V. New Eng. Mut. Life Ins. Co. (127 Mass. 91), 101. Nashville v. Thomas (5 Cold. 600), 274. Nashville St. Ry. Co. v. Gore (106 Tenn. 390), 363. V. O'Bryan (104 Tenn. 28), 410. Nassau BJec. Ry. Co., Matter of (6 App. Div. (N. Y.) 141), 18, 22, 28. National Fire Ins. Co. v. Denver Consol. Elec. Co. (16 Colo. App. 86), 134. National Teleph. Co. v. Baker (L. R. Ch. Div. 186), 135, p. 265. Nealand v. Lynn Ry. Co. (173 Mass. 42), 413. Nearing v. Toledo Ry. Co. (9 Ohio C. C. 596), 435. Neary v. Citizens' Ry. Co. (110 App. Div. (N. Y.) 769), 457. Neary v. Philadelphia W. & B. R. R. Co. (9 Atl. Rep. 405), 268. Nebraska Telephone Co. v. New York Gas & Electric Light Co. (27 Neb. 284; 43 N. W. Rep. 126), 292. Neff v. Harrisburg Trac. Co. (192 Pa. St. 501), 337. Negus V. City of Brooklyn (10 Abb. N. C. 180), 31, 191, 427. Neier v. Missouri Pacific Ry. Co. (12 Mo. App. 25), 224. Nelson v. Crescent City Ry. Co. (49 La. Ann. 491), 310. Neslie v. Second & Third Sts. Pass. Ry. Co. (113 Pa. St. 300), 332, 351, 355, 357. New Albany & Salem R. R. Co. v. O'Daily (12 Ind. 551), 82. V. O'Daily (13 Ind. 353), 106. Newark v. State Board of Taxation (66 N. J. L. 466), 271. V. Board of Taxation (67 N. J. L. 246), 273. Newark Pass. Ry. Co. v. Block (55 N. J. L. 605), 310. V. East Orange (53 N. J. Eq. 248), 49. Newark Ry. Co. v. McCann (58 N. J. L. 642), 330. Newark E. L. & P. Co. v. Garden (78 Fed. Rep. 74), 292. V. McGllvery (62 N. J. L. 451), 29. V. Ruddy (62 N. J. L. 505), 292. Newark Trac. Co. v. North Arling- ton (65 N. J. L. 150), 271. Nev/ark & Hackensack Trac. Co. v. North Arlington (67 N. J. L. 161), 40. Newark & South Orange Horse Car Ry. Co. V. Hunt (50 N. J. L. 308), 22L New Bedford & Fairhaven St. Ry. Co. v. Acushnet St. Ry. Co. (143 Mass. 200), 110. New Castle v. Raney (130 Pa. St. 546), 231. Newell V. Minneapolis, Lyndale & Minnetonka Ry. Co. (35 Minn. 112), 3, 80, 86. New England Ry. Co. v. Bristol (151 U. S. 556), 13. V. Central Ry. & Elec. Co. (69 Conn. 47), 64. New Castle v. Elec. Ilium. Co. (16 Pa. Co. Ct. Rep. 663), 280. Newcomb v. Norfolk Ry. Co. (179 Mass. 449), 230. Newhart v. St. Paul City Ry. Co. (52 N. W. Rep. 283), 413. New Haven v. Fairhaven & West- ville R. R. Co. (38 Conn. 422), 210, 257, 271, 275. New Jersey Express Co. v. Nichols (33 N. J. L. 434), 381. New Jersey v. Yard (95 U. S. 104), 244. Newman v. Metropolitan Elevated Ry. Co. (118 N. Y. 618), 194, 195. v. Phillipsburg Horse Car R. R. Co. (52 N. J. L. 446), 389. New Orleans v. Bayley (35 La. Ann. 545), 269. V. Crescent City R. R. Co. (41 La. Ann. 904), 269. V. Great Southern Telephone & Tel. Co. (40 La. Ann. 41), 40. V. Louisiana Savings Bank (31 La. Ann. 826), 274. V. New Orleans Water Works Co. (36 La. Ann. 432), 269. V. New Orleans City & Lake R. R. Co. (40 La. Ann. 587), 269, 280, 2R1, 282, 286. V. Nev/ Orleans R. R, Co. (42 La. Ann. 4), 269, 280, 286. V. St. Charles St. R. R. Co. (28 La. Ann. 497), 268, 269. New Orleans City R. R. Co. v. Crescent City R. R. Co. (23 La. Ann. 759), 113. V. Crescent City R. R. Co. (12 Fed. Rep. 308), 108, 110. New Orleans City & L. R. R. Co. v. City of New Orleans (44 La. Ann, 748), 108, 110, 115, 222. V, City of New Orleans (157 U. S. 219), 36. V. Watkiiis (48 La. Ann. 1550), 1, 25. Ixxx TABLE OF CASES. References are New Orleans Gas Light Co. v. Louisiana Light Co. (115 U. S. 650), 244. New Orleans & Carrollton R. R. Co. V. Board of Assessors (ii2 La. Ann. 19), 274. V. Canal & Claiborne St. Ry. Co. (47 La. Ann. 147G), 110, 125. V. New Orleans (34 La. Ann. 429), 33, 43. New Orleans, Mobile & Chattanooga R. R. Co. V. New Orleans (z6 La. Ann. 478), 7. New Orleans, St. L. & C. R. R. Co. V. Burke (53 Miss. 200), 3/0, 374. New Orleans, Spanish Fort & Lake R. R. Co. V. Delamore (114 U. S. 501), 423, 427. New Orleans Ry. Co. v. Schneider (60 Fed. Rep. 210), 344. V. Watkins (48 La. Ann. 1550), 1. Newport v. South Covington & Cin- cinnati St. Ry. Co. (89 Ky. 29), 269. Newport St. Ry. Co. v. Newport (1 Ky. Law Rep. 124), 275. Newport St. R. R. Co. v. Johnson (2 Ky. Law Rep. 225), 362. Newport & Dayton St. Ry. Co. v. Newport (1 Ky. Law Rep. 404), 69. Newport Ilium. Co. v. Tax Assessors of Newport (19 R. I. 632), 272. Newport News Ry. Co. v. Bradford (99 Va. 117), 294. V. Hampton Rds. Ry. Co. (102 Va. 795), 49, 51, 434, 436, 439, 473. V. Newport News (100 Va. 157), 281, 285. V. Nicolopoolas (109 Va. 165), 319. Newton v. Atchison (31 Kan. 151), 282. New York v. Harlem Bridge Ry. Co. (91 N. Y. Supp. 557; 186 N. Y. 304), 242, 244, 246, 247, 252, 259. V. Metropolitan St. Ry. Co. (90 App. Div. (N. Y.) 66), 318, V. New York City Ry. Co. (117 N. Y. Supp. 919), 40. V. New York Ry. Co. (110 N. Y. Supp. 720), 33. V. Sixth Ave. Ry. Co. (77 App. Div. (N. Y.) 367), 426, 429. V. Third Ave. By. Co. (77 App. Div. (N. Y.) 379), 426. V Third Ave. R. R. Co. (1 N. Y. Supp. 397), 282. V. Twenty-Third St. Ry. Co. (17 N. Y. Supp. 32), 282. New York Cable Ry. Co. v. Cham- to Sections. bers St. & Grand St. Ry. Co. (40 Hun 29), 108. V. B orty-becond St., Manhattan & St. Nicholas Ave. Ry. Co. (13 Daly 118), 18, 48. 55, 155, 150. V. Mayor of New York (104 N. Y. 1), 18, 46, 48, 106, 154, 100. New ^ork Central & H. R. R. Co. T. Buffalo (200 N. Y. 113), 446, 473. New \ ork & Erie R. R. Co. v. Sabin (26 Pa. St. 242), 286. New \ork & Greenwood Lake Co. v. New Jersey B. Ry. Co. (60 N. J. L. 52), 301. New York Guaranty & Indemnity Co. V. Tacoma Ry. Co. (93 Fed. Rep. 51), 271. New \ork & Harlem R. R. Co. v. Forty-Second St. & Grand St. Ferry R. R. Co. (50 Barb. 285), 6, 108, 113. V. Forty-Second St. & Grand St. Ferry Ry. Co. (50 Barb. 309), 2, 11, 47, 114. V. Mayor (1 Hilt. 502), 14. V. Morrisania (7 Hun 652), 278. New York, H. & N. R. R. Co. v. Boston, H. & E. R. R. Co. (36 Conn. 196), 118. New York, Lake Erie & Western Ry. Co. V. Haring (18 Vroom 137), 425. V. Steinbrenner (47 N. J. L. 161), 393. New York & L. B. R. R. Co. v. Highlands Ry. Co. (55 N. J. Eq. 522), 114. New York & Long Is. R. Co. v. O'Brien (121 App. Div. (N. Y.) 319), 1. New York, L. E. & W. R. R. Co. v. New Jersey Elec. Co. (00 N. J. L. 338), 425. New York, N. H. & H. R. R. v. Bridgeport Trac. Co. (05 Conn. 410), 114. V. Fair Haven Ry. Co. (70 Conn. 610), 103. V. Stevens (81 Conn. 16), 56. New York National Exchange Bank V. Metropolitan Elevated R. R. Co. (53 N. Y. Super. 511), 200. New York Ry. Co. v. O'Brien (106 N. Y. Supp. 909), 88. New York Security & T. Co. v. Cap- ital Ry. Co. (77 Fed. Rep. 529), 423. New York Telephone Co. v. Bennett (62 N. J. L. 742), 292. TABLE or CASES. Ixxxi Beferences are to Sections. New York & Oswego Midland R. R. Co. V. Van Horn (57 N. Y. 473), 38 New York, P. & N. R. R. Co. v. Cooper (85 Va. 939), 362. Nichols V. Ann Arbor & Yipsilanti St. Ry. Co. (87 Mich. 361), 1, 10, 11, 59, 80, 87, 92, 100, 443, 445. V. Brooklyn City R. R. Co. (30 Hun 437) 397. V. Lynn Ry. Co. (168 Mass. 528), 349. V. Middlesex R. R. Co. (106 Mass. 463), 349. V. Sixth Ave. R. R. Co. (38 N. Y. 131), 216, 337, 345. Nieboer v. Detroit Blec. Ry. Co. (128 Mich. 486), 340. Nieman v. Detroit Ry. Co. (103 Mich. 256), 94, 440, 443. Nies V. Brooklyn Heights Ry. Co. (68 App. Div. (N. Y.) 259), 341. Ninth Ave. R. R. Co. v. New York Elevated R. R. Co. (3 Abb. N. C. 347), 189. Nisbet V. Garner (75 Iowa 314), 393. Nivette v. New Orleans City & Lake R. R. Co. (42 La. Ann. 1153), 292 Noble V. St. Joseph Ry. Co. (98 Mich. 249), 338. Nolan V. Brooklyn City & Newtown R. R. Co. (87 N. Y. 63), 227, 338. V. Brooklyn Heights R. R. Co. (68 App. Div. (N. Y.) 219), 211. Noonan v. Consolidated Trac. Co. (60 N. J. L. 444), 391, 393. Nooney v. New York Elevated R. R. Co. (17 N. Y. Supp. Ill), 203. Nordlinger v. Manhattan Ry. Co. (77 Hun 311), 209. Norfolk Ry. Co. v. Consol. Turnpike Co. (100 Va. 243), 433, 435, 446. V. Corletto (100 Va. 355), 229. Norfolk & Western R. R. Co. v. Groseclose's Admr. (13 S. B. Rep. 454), 400. Norfolk & Petersburg R. R. Co. v. Ormsby (27 Gratt. 455), 389. Norman v. Middlesex Trac. Co. (68 N. J. L. 728), 412. Norris v. Litchfield (35 N. H. 271), 366. Norristown v. Norristown Pass. Ry. Co. (158 Pa. 87), 245. North V. Pate (107 Ind. 356), 10. Northampton County v. Easton Pass. Ry. Co. (148 Pa. St. 282), 267, 272. North Alabama Trac. Co. v. Thomas (164 Ala. 191), 298. North Amherst Home Tel. Co. v. Jackson (4 Ohio C. C. 386), 135, p. 265. North Baltimore Pass. Ry. Co. v. Baltimore (23 Atl. Rep. 470), 108. V. Kaskell (78 Md. 517), 361. V. North Ave. Ry. Co. (23 Atl. Rep. 466), 114. North Bend v. Electric St. Ry. Co. (25 Ohio C. C. 268), 434. North Birmingham St. R. R. Co. v. Calderwood (89 Ala. 247), 228, 229, 337, 345, 349, 354. North Braddock v. Second Ave. Trac. Co. (8 Pa. Super. Ct. 233), 238. North Carolina, Richmond & Dan- ville R. R. Co. V. Carolina Cent. Ry. Co. (83 N. C. 48a;, 1x8. North Chicago St. Ry. Co. v. Cotton (140 111. 486), 361, 404. North Chicago City Ry. Co. v. Gastka (128 111. 613), 365, 372. V. Gastka (27 111. 518), 365. v. Lake View (105 111. 183), 231. V. Lake View (105 111. 207), 68, 86. North Chicago St. R. R. Co. v. Louis (35 111. App. 477), 378, 383. V. Louis (27 N. E. Rep. 451), 323, 378 V. Bauer (179 111. 126), 339, 342. V. Boyd (57 111. App. 535), 361. V. Cheetham (58 111. App. 318), 20, 21 23. V. Conway (76 111. App. 621), 412. V. Eldridge (151 111. 542), 354. V. Eldridge (51 111. App. 430), 332. V. Haspers (186 111. 246), 336. V. Hutchinson (191 111. 104), 427. V. Irwin (104 111. App. 150), 302. V. Nelson (79 111. App. 229), 312. V. Peuser (190 111. 67), 316. V. Polkey (106 111. App. 98), 341,360. V. Schwartz (82 111. App. 493), 331. V. Southwick (66 111. App. 241), 345. V. Walsh (78 111. App. 595), 326. V. Williams (140 111. 275), 326, 336, 360. Northeastern R. R. Co. v. Payne (8 Rich. Law Repts. 177), 33, 34. North Hudson County Ry. Co. v. Hoboken (41 N. J. L. 71), 222, 243, 279, 280. V. Isley (49 N. J. L. 468), 303, 316. North Hudson Ry. Co. v. Anderson (61 N. J. L. 248), 364. V. Flanagan (57 N. J. L. 696), 385. North Jersey St. Ry. Co. v. Camden Ry. Co. (52 N. J. Eq. 31), 83. V. Camoen Horse R. R. Co. (52 N. J. Eq. 452), 5L Ixxxii TABLE OF CASES. References are North Jersey St. Ry. Co v. Com- missioners (73 N. J. Eq. 106), v.lersey City (68 N. J. h. 140), V. ^Jersey City (74 N. J. L- 761), 234 V. So. Orange (68 N. J. Eq. 83), y.lciiwartz (66 N. J. L. 437), 305. North Pennsylvania '^■^■^°-^- Inland Trac. Co. (205 Pa. St. ,579), 441, 445, 449. V. Stone (3 Phila. 421), 42. North Side St. Ry. Co v Jippms (14 S. W. Rep. 1067), 298. V. Want (15 S. W. Rep. 40), 323. North Vernon v. Voegler (103 Ind. 314), 102. Northern Central R. R. Co. v. Gies, (31 Md. 357), 380. Northern Central Ry. Co. -V- Har- rishurg & Mechanicshurg E. Ry. Co. (177 Pa. St. 142), 56. V. Harrisburg Ry. Co. (177 Pa. St. 142), 450. Northern Indiana R. R. Co. v. Con- nelly (10 Ohio St. 159), 275. Northen R. R. Co. v. Concord & Claremont R. R. Co. (27 N. H. 183). 118. V. Miller (10 Barb. 260), 37. Northern Pac. R. R. Co. v. Peterson (162 TJ. S. 346), 412. Northern Telephone Co. v. Ander- son (12 N. D. 585), 453. Northside Ry. Co. v. Worthington (88 Tex. 562), 423. Norton v. Interurhan Ry. Co. (98 N. Y. Supp. 216), 458. V. Third Ave. Ry. Co. (26 App. Div. (N. Y.) 60), 349. Norwalk St. Ry. Co's App. (69 Conn. 576), 6, 16. Noyes v. Town of Boscawan (64 N. H. 361), 393. V. Southern Pacific R. R. Co. (24 Pac. Rep. 927), 378. Nutting V. Kings County Elevated Ry. Co. (48 Hun 348), 191. Oakland R. R. Co. v. Brooklyn & Fruit Vale R. R. Co. (45 Cal. 365), 6, 46. Oakland Ry. Co. v. Fielding (48 Pa. St. 320), 291. to Sections. Dates V. Metropolitan St. Ry. Co. (168 Mo. 535), 298. Oberholtzer v. Norristown Pass, By. Co. (16 Pa. Co. Ct. Rep. 13), 428. Obold V. United Trac. Co. (19 Pa. Super. Ct. 326), 298. O'Brien v. Blue Hill St. Ry. Co. (186 Mass. 446), -298. V. Boston & Worcester R. R. Co. (15 Gray 20), 357. V. Brooklyn Heights Ry. Co. (80 App. Dlv. (N. Y.) 474), 406. Ocanto v. Chicago & Northwestern Ry. Co. (44 Wis. 231), 258. Ochiltree v. Railroad Co. (21 Wall. 249), 38. ^ ^, ^ O'Connell v. St. Louis Cable & Western Ry. Co. (106 Mo. 482), 328, 359. O'Conner v. Pittsburgh (18 Pa. St. 187), 3, 76. Oddle V. Mendenhall (84 Minn. 58), 298 Oddy t'. West End St. Ry. Co. (178 Mass. 341), 326. Ode V. Manhattan Ry. Co. (56 Hun 199), 190, 206. Odell V. New York Elevated R. R. Co. (130 N. Y. 690), 195. O'Donnell v. Louisville Elec. L. Co. (108 Ky. 224), 292. O'Flaherty v. Nassau Elec. Ry. Co. (34 App. Dlv. (N. Y.) 74), 292, 408. V. Union Ry. Co. (45 Mo. 70), 386, 387, 390. V. Union Ry. Co. (34 Mo. 24), 390. Ogden City Ry. Co. v. Ogden City (26 Pac. Rep. 288), 83, 103, 108, 110. O'Hearn v. Town of Port Arthur (4 Ontario L. Rep. 209), 316. Ohio Central Trac. Co. v. Matteer (81 Ohio St. 494), 336, 464. Ohio & Mississippi R. R. Co. v. McClelland (25 111. 200), 65. V. People (120 111. 200), 65. V. Wheeler (1 Black 286), 274. Ohliger v. Toledo Trac. Co. (23 Ohio C. C. 265), 408. O'Keefe v. Thorn (16 Atl. Rep. 30), 413. Olathe V. Missouri Ry. Co. (78 Kan. 193), 45. Old Colony Trust Co. v. Allentown & Bethlehem R. T. Co. (192 Pa. St. 596), 1, 423. V. Atlanta (88 Fed.. Rep. 859), 233, 237. TABLE OF CASES. Ixxxiii Beferences are to Sections. Oldfield V. New York & Harlem R. R. Co. (3 E. D. Smith 103; affd. 14 N. Y. 310), 385. 387, 389, 404. V. New York & Harlem R. R. Co. (14 N. Y. 310), 307. Oliver v. Denver Tramway Co. (13 Colo. App. 543), 300. V. Fort Smith Lt. & Trac. Co. (S9 Ark. 221), 341. V. North End St. Ry. Co. (170 Mass. 222), 403. Olivier v. Haughten Co. R. Go. (138 Mich. 242), 472. Olney v. Omaha Ry. Co. (78 Neb. 767), 303. Olney, City of, v. Wharf (115 111. 519), 78. Olsen V. Citizens' Ry. Co. (152 Mo. 426), 361. Omaha & Council Bluffs Ry. Co. V. Levlnston (49 Neh. 17), 349. Omaha Horse Ry. Co. v. Cable Tramway Co. (30 Fed. Rep. 324), 109. V. Cable Tramway Co. (32 Fed. Rep. 727), 103, 109, 114. V. Doolittle (7 Neb. 481), 379. Omaha & Republican Valley R. R. Co. V. Standen (22 Neb. 243), 102. Omaha St. Ry. Co. v. Cameron (43 Neo. 297), 301. V. C'-air (39 Neb. 454), 299. V. Craig (39 Neb. 601), 345. V. Duvall (40 Neb. 29), 229. V. Emmlnger (57 Neb. 240), 407. V. Martin (48 Neb. 65), 336, 381. ©"Malley v. Scranton Trac. Co. (191 Pa. St. 410), 314. Omnibus R. R. Co. v. Baldwin (57 Cal. 160), 46, 47, 110, 115, 122. O'Neil V. Dry Dock, East Broadway & Battery Ry. Co. (15 N. Y. Supp. 84), 327, 408, 409. V. Dry Dock, East Broadway & Battery Ry. Co. (129 N. Y. 125), 303, 304, 323, 403. V. Klnken (29 N. Y. St. Rep. 372; 8 N. Y. Supp. 554), 389. V. Lynn & Boston R. R. Co. (29 N. E. Rep. 630), 338, 357, 370. Oppenheimer v. Manhattan Ry. Co. (18 N. Y. Supp. 411), 217. Grange & Newark Horse R. R. Co. V. Ward (47 N. J. L. 560), 303. O'Rellley v. Kingston (114 N. Y. 439), 275. O'Reilly v. Brooklyn Heights Ry. Co. (89 N. Y. Supp. 41), 110. O'Reilly v. New York Elev. R. R. Co. (76 Hun 283), 195. Orleans Village v. Perry (24 Neb. 831), 379. Ormsby v. Manufacturing Co. (65 Barb. 360), 45. O'Rourke v. Citizens' St. Ry. Co. (103 Tenn. 124), 237. v. Lindell Ry. Co. (142 Mo. 342), 363. Osborne v. Brooklyn City R. R. Co. (5 Blatch. 366), 12, 82. V. Del. Co. Ry. Co (9 Pa. Super. Ct. 632), 28, 107. Osgood V. Los Angeles Trac. Co. (137 Cal 280), 361. V. Lynn & Boston R. R. Co. (130 Mass. 492), 291, 409. Oshkosh City Ry. Co. v. Winne- bago Co. (89 Wis. 435), 275. Oskaloosa Co. v. Oskaloosa (99 Iowa 496), 242. Oster' V. Schuylkill Trac. Co. ( 195 Pa. St. 320), 305. O'Toole V. Central Park, North & East River R. R. Co. (12 N. Y. Supp. 347), 378. Ottawa V. Ohio Elec. Ry. Co. (13 Ohio C. C. 561), 451. Otten V. Manhattan Ry. Co. (2 App. Div. (N. Y.) 396), 195. Ottentot V. New York L. & W. R. R. Co. (41 Alb. L. J. 194), 92. Ottinger v. New York Elevated R. R. Co. (18 N. Y. Supp, 238), 186, 206. V. New York Elevated R. R. Co. (15 N. Y. Supp. 18), 199. Ottowa & Glass Co. v. McCaleb (81 111. 556), 274. Outen V. North & South St. Ry. Co. (94 Ga. 662), 337. Ovington v. Lowell St. Ry. Co. (163 Mass. 440), 294. Owens V. Richmond & Danville R. R. Co. (88 N. C. 502), 381. Owners of Ground v. Mayor (15 Wend. 374), 278. Pacific R. R. Co. v. Hughes (22 Mo. 291) 37. V. Renshaw (18 Mo. 210), 37. V. Wade (27 Pac. Rep. 768), 110, 114, 115. Packard v. Toledo Trac. Co. (22 Ohio C. C. 578), 336. Pacquet v. Mt. Tabor St. Ry. Co. (1* Ore. 233), 82, 91, 100. Ixxxiv TABLE OF CASES. Befereuces are to Sections. Padgitt V. Moll & Citizens' Ry. Co. (159 Mo. 143), 365. Paduoali St. Ry. Co. v. McCracken (105 Ky. 472), 273. Paducah Trac. Co. v. Sine (33 Ky. Law Rep. 792), 380. Paginini v. North Jersey St. Ry. Co. (70 N. J. L. 385), 345. Paine v. San Bernardino Valley Trac. Co. (143 Cal. 654), 305. Pakalinsky v. The N. Y. C. & H. R. R. Co. (82 N. Y. 424), 301. Pallett V. Kings County Elevated R. R. Co. (10 N. Y. Supp. 691), 218. Pallez V. Brooklyn City R. R. Co. (4 N. Y. Supp. 384), 336, 348. Palmer v. Chicago, St. Louis & Pittsburgh R. R. Co. (112 Ind. 250), 378. V. Portland Ry. Co. (108 Pac. Rep. 211), 303. V. Larchmont Elec. Co. (158 N. Y. 231), 441. V. Railroad (3 Hill 580), 237. V. Winona Ry. Co. (78 Minn. 138), 308, 335. V. Winston-Salem Ry. Co. (131 N. C. 250), 372. Palmyra v. Morton (25 Mo. 593), 228. Pappenheim v. Metropolitan Ele- vated Ry. Co. (128 N. Y. 436), 99, 100, 189, 190, 200, 201. Paauet V. Mt. Tabor Ry. Co. (18 Ore. 233), 441. Paquin v. St. Louis Ry. Co. (90 Mo. App. 118), 340. Paret v. New York Elevated R. R. Co. (18 N. Y. Supp. 580), 189, 192. Park V. O'Brien (23 Conn. 339), 381. Parker v. Metropolitan R. R. Co. (109 Mass. 506), 37, 220, 233. Parkhurst v. Capital City Ry. Co. (23 Ore. 471), 108. Parmelee v. Chicago (60 111. 267), 271, 275, 277. Parsons v. Charleston Consol. Ry. Gas & Elec. Co. (69 S. C. 305) ,132. Passamaneck v. Louisville Ry. Co. (98 Ky. 195), 387. Paterson & Passaic Gas & Elec. Co. v. State Board of Assessors (69 N. J. L. 116), 271. Paterson & Passaic R. R. Co. v. Mayor (24 N. J. Bq. 158), 24. Paterson Ry. Co. v. Grundy (51 N J. Eq. 213), 127. v Lamring (is n. J. L. J. 245), 316. Patten v. New York Elevated R. R Co. (3 Abb. N. C. 306), 187, 190. Patterson v. Inclined Ry. Co (12 Ohio C. C. 274), 349. Patterson v. Taylor (51 Fla. 275), 325. V. Westchester Elec. Ry. Co. (26 App. Div. (N. Y.) 336), 404. Patton V. Philadelphia Traction Co. (132 Pa. St. 76), 321. Patton Township v. Monongahela St. Ry. Co. (226 Pa. St. 372), 65. Paulsen v. Nassau Elec. Ry. Co. (18 App. Div. (N. Y.) 221), 361. Pavonia Horse R. R. Co. v. Mayor (45 N. J. L. 297), 279. Pawcatuck Valley St. Ry. Co. v. Westerly (22 R. I. 307), 231. Payne v. Forty-Second St. & Grand St. Ferry R. R. Co. (40 N. Y. Super. 8), 342, 352, 361. V. Humeston & S. R. R. Co. (70 Tex. 584), 389. Pearsall v. Great Northern Ry. Co. (161 U. S. 646), 4. Peck V. New York, New Haven & Hartford R. R. Co. (50 Conn. 379), 392. V. Schenectady Ry. Co. (67 App. Div. (N. Y.) 359), 24, 81, 82. Peddicord v. Baltimore, Cantons- ville & Elliott's Mills Pass. R. R. Co. (34 Md. 463), 82, 441. Peeper v. Union Trac. Co. (202 Pa. St. 100), 315. Peetz V. St. Charles St. Ry. Co. (42 La. Ann. 541), 290. Pegram v. New York Elevated Ry. Co. (14 N. Y. Supp. 769), 191. Peik V. Chicago & N. W. R. R. Co. (6 Biss. 177), 220. Pell V. Joliet Ry. Co. 238 111. 510), 462, 466. Pelton V. East Cleveland R. R. Co. (22 W. L. B. 67), 43, 69, 83, 127, 132, 133. Pendergast v. Union Ry. Co. (10 App. Div. (N. Y.) 207), 412. Pendleton St. R. R. Co. v. Shires (18 Ohio St. 255), 309. v. Stallman (22 Ohio St. 1) , 309. Pendril v. Second Ave. R. R. Co. (34 N. Y. Super. 481), 306, 309. Penman v. McKeesport, D. & W. Ry. Co. (201 Pa. St. 247), 313. Pennsylvania Co. v. EUet (24 N. B. Rep. 559), 300. V. Lake Brie Ry. Co. (146 Fed. Rep. 446), 109. Pennsylvania R. R. Co.'s Appeal (93 Pa. St. 150), 103. Pennsylvania R. R. Co. v. Baltimore .& Ohio R. R. Co. (60 Md. 263), 118. V. Barnett (59 Pa. St. 259), 298. TABLE 03? CASES. Ixxxv References are to Sections. Pennsylvania R. R. Co. v. Braddock Electric Ry. Co. (152 Pa. St. 116), 109. V. City of PMladelpMa (2 W. N. C. 639), 247. V. Conshohocken Ry. Co. (15 Pa. Co. Ct. Rep. 454), 109. V. Greensburg J. & P. St. Ry. Co. (176 Pa. St. 559), 28, 56, 433, 441, 445. V. Hamilton (67 N. J. L,. 477), 122, 435. V. Henderson (51 Pa. St. 315), 402. V. Inland Trac. Co. (25 Pa. Super. Ct. 115), 1, 429. V. Irwin (5 Rep. 121), 243. V. Langendorf (48 Ohio St. 316), 382. V. Lippincott (9 Atl. Rep. 871), 186. V. MacKinley (124 Pa. St. 462), 361. V. Matthews (36 N. J. L. 531), 301. V. Miller (132 U. S. 75), 232. V. Montg. Co. Pass. Ry. Co. (167 Pa. St. 62), 28, 433, 435, 440, 441. V. Parkersburg Ry. Co. (26 Pa. Super. Ct. 159), 24, 28. V. Philadelphia Belt Line R. R. Co. (149 Pa. St. 218), 33, 118. V. Riblet (66 Pa. St. 164), 220. V. Righter (42 N. J. L. 180), 379. V. Stegemeier (118 Ind. 305), 383. V. Suburban Rapid Transit Co. (11 Pa. Co. Ct. Rep. 591), 301. V. Turtle Creek Valley Ry. Co. (179 Pa. St. 584), 435. V. Warren St. Ry. Co. (188 Pa. St. 74), 109. Pensacola v. Northrup (66 Fed. Rep. 689), 428. People V. Albany & Vermont R. R. Co. (24 N. Y. 261), 65. V. Assessors of Brooklyn (19 App. Div. N. Y.) 599), 271. V. Atlantic Ave. R. R. Co. (125 N. Y. 513), 33, 44, 52, 420. V. Barker (72 Hun 126), 274. V. Barnard (48 Hun 57), 56, 110. V. Barnard (110 N. Y. 548), 29, 233. V. Boston & Albany R. R. Co. (70 N. Y. 569), 65. V. Bristol & Rensselaerville Turn- pike Co. (23 Wend. 222), 44. V. Broadway R. R. Co. (126 N. Y. 29), 33, 48. V. Brooklyn, Flat Bush & Coney Island Ry. Co. (89 N. Y. 75), 2. People V. Brooklyn Heights Ry. Co. (69 App. Div. (N. Y.) 549; 172 N. Y. 90), 65. V. Campbell (93 N. Y. 196; 88 Hun 527), 267, 269. V. Cassity (46 N. Y. 46), 210, 271, 278. V. Chicago West Division Ry. Co. (118 111. 113), 27, 29, 40, 65. V. City of Brooklyn (65 N. Y. 349), 259. V. Coleman (4 Cal. 46), 267. V. Commissioners (35 N. Y. 423), 274. V. Commissioners (67 N. Y. 568), 73. V. Commissioners (10 Hun 246), 285. V. Commissioners of Taxes (10 Hun 246), 285. V. Commissioners (30 App. Div. (N. Y.) 69), 69. V. Commissioners of Taxes (23 Hun 687), 271, 273. V. Creiger, Mayor (138 111. 401), 224. V. Croycroft (111 Cal. 544), 25. V. Decatur Ry. Co. (120 111. App. 229) 18 22 V. Detroit' Ry. Co. (116 Mich. 132), 234. V. Dulany (96 111. 503), 261. V. Dutchess & Columbia R. R. Co. (58 N. Y. 152), 65. V. Geneva Trac. Co. (186 N. Y. 516; 112 App. Div. (N. Y.) 581), 222, 261. V. Gilon (126 N. Y. 147), 275. V. Hillsdale & Chatham Turnpike Co. (23 Wend. 250), 44, 52. V. Jackson & Michigan Plank Road Co. (9 Mich. 285), 220. V. Kennedy (97 App. Div. (N. Y.) 103), 436. V. Kerr (27 N. Y. 188), 3, 78, 80, 82, 87, 88, 187. V. Kerr (37 Baru. 357), 3, 82, 187. V. Kingston & Middleton Turn- pike Road Co. (23 Wend. 193), 46. V. Lake St. Elec. Ry. Co. (54 111. App. 348), 24. V. Long Island R. R. Co. (60 How. Pr. 395), 55, 70, 73. V. Los Angeles Electric Ry. Co. (91 Cal. 338), 15, 44, 45, 50, 110. V. Manhattan Co. (9 Wend. 351), 45, 47, 50. 184. Ixxxvi TABLE OF CASES. References are People V. Mutual Gas Light Co. (38 Mich. 154), 44. V. Newton (58 N. Y. Super. 439), 18. V. Newton (1 N. Y. Supp. 197), 84. V. Newton (112 N. Y. 396), 33, 37, 69. V. New York Central & Hudson River R. R. Co. (9 Am. & Eng. R. R. Cas. 1), 65. V. New York Central & Hudson River R. R. Co. (74 N. Y. 302), 161. V. O'Brien (111 N. Y. 1), 39, 423, 424. V. Park & Ocean R. R. Co. (76 Cal. 156), 7. V. Rensselaer & Saratoga R. R. Co. (15 Wend. 113), 44. V. Rich (54 Cal. 74), 110. V. Rochester & State Line R. R. Co. (14 Hun 371), 65. V. Squire (107 N. Y. 593), 4, 131, 220. V. Stanford (77 Cal. 360), 44. V. Suburban R. R. Co. (178 111. 594), 233. V. Suter St. Ry. Co. (117 Cal. 604), 51, 52. V. Tax Commissioners (95 N. Y. 554), 269, 274. V. Third Ave. Ry. Co. (45 Barb. 63), 12, 63. V. Tinsdale (10 Abb. Pr. 374), 418. V. Utica (45 App. Div. (N. Y.) 356), 242, 244. V. Willcox (118 N. Y. Supp. 248), 29. People's Pass. Ry. Co. v. Baldwin (14 Phila. 231), 51. v. Green (56 Md. 84), 336. V. Lauderback (2 Sadler 187), 344. v. Marshall St. Pass. Ry. Co. (8 Pa. Co. Ct. Rep. 273), 63. v. Philadelphia (14 Phila. 231), 5L V. Union Pass. Ry. Co. (15 Pa. Co. Ct. Rep.), 108. V. Weilder (17 W. N. C. 306), 328, 361. People's Ry. Co. v. Grand Ave. Ry. Co. (149 Mo. 245), 116. V. Memphis R. R. Co. (10 Wall. 38), 3, 31. People's Rapid Transit Co. v. Dash (125 N. Y. 93), 164. People's Trac. Co. v. Atlantic City Ry. Co. (71 N. J. L. 134), 28, 108. to Sections. Peoria Water Wks. Co. v. Peoria Ry. Co. (181 Fed. Rep. 990), 135, p. 264. Pepperall v. City Park Trans. Co. (15 Wash. 176), 404. Percy v. Metropolitan St. Ry. Co. (58 Mo. App. 75), 237. Perham v. Portland Blec. Co. (33 Ore. 451), 292. Perlmutter v. Highland St. Ry. Co. (121 Mass. 497), 398. Perras v. United Trac. Co. (88 App. Div. (N. Y.) 260), 323. Perrin v. New York Central R. R. Co. (36 N. Y. 120), 75. Perry v. Macon Consol. Ry. Co. (101 Ga. 400), 310. v. New Orleans, Mobile & Chat- tanooga R; R. Co. (55 Ala. 413), 79. Ferryman v. Chicago City Ry. Co. (242 111. 269), 389. Peterson v. Navy Yard, Broad St. & Fairmount Ry. Co. (5 Phila. 199), 11, 12. Pettibone v. Hamilton (40 Wis. 402), 101. Petty V. St. Louis & M. R. R. Co. (179 Mo. 666). 469. Peyser v. Metropolitan Elevated Ry. Co. (12 Daly 70), 190. V. Metropolitan Elevated Ry. Co. (13 Daly 122), 190. Peyton v. New York Elevated R. R. Co. (17 N. Y. Supp. 244), 208. V. Texas & Pacific Ry. Co. (41 La. Ann. 861), 382. P. C. & St. L. R. R. Co. V. Brown (67 Ind. 45), 220. V. Yundt (78 Ind. 373), 301. Philadelphia v. Citizens' Pass. Ry. Co. (151 Pa. St. 128), 18, 28. V. Empire Pass. Ry. Co. (18 Pa. Co. Ct. Rep. 81), 243. V. Evans (139 Pa. St. 483), 247, 254. V. Hestonville Pass. Ry. Co. (177 Pa. St. 371), 244. V. Hestonville Ry. Co. (203 Pa. St. 38), 257. V. Lombard & South Sts. R. R. Co. (3 Grant's Cas. 403), 28. V. McManes (175 Pa. St. 2«),.l, 7. V. Philadelphia R. R. Co. (7 Pa. Co. Ct. Rep. 390), 56. V. Ridge Ave. Pass. Ry. Co. (143 Pa. St. 444), 13, 247, 254, 266. V. Ridge Ave. Pass. Ry. Co. (102 Pa. St. 190), 274. TABI.E OF CASES. Ixxxvii References are to Sections. Philadelphia v. Second & Third Sts. Pass. Ry. Co. (13 Pa. Co. Ct. Rep. 580), 256. V. Spring Garden Farmers' Mar- ket Co. (161 Pa. St. 522), 247, 254. V. Thirteenth & Fifteenth Sts. Pass. Ry. Co. (8 Phila. 648), 11, 12. V. Thirteenth & Fifteenth Sts. Pass. Ry. Co. (169 Pa. St. 269), 244, 247, 257, 266. Philadelphia City Pass. Ry. Co. v. Hassard (75 Pa. St. 367), 333, 385. V. Henrice (92 Pa. St. 431), 323. Philadelphia & Gray's Ferry Pass. R. R. Co.'s Appeal (102 Pa. St. 123), 39, 113. Philadelphia & Gray's Ferry R. R. Co. V. Philadelphia (11 Phila. 358), 42, 247, 257. Philadelphia & Merion Ry. Co.'s Petition (187 Pa. St. 123), 10, 49. Philadelphia M. & S. St. Ry. Co.'s Petition (203 Pa. St 354), 110, 115, 117, 118. Philadelphia & Reading R. R. Co. V. Boyer (97 Pa. St. 91), 301, 328, 361, 362, 363, 393. V. Killipps (88 Pa. St. 405), 298, 301. v. Long (75 Pa. St. 257), 388. Philadelphia Traction Co. v. Bern- heimer (125 Pa. St. 615), 297, 298 V. Orbann (119 Pa. St. 37), 365, 410. Philadelphia, "W. & B. R. R. Co. v. Anderson (72 Md. 519), 346. T. Appeal Tax Court (50 Md. 397), 271. V. Bowers (4 Houston 506), 220, 232 V. Soeflick (62 Md. 300), 410. V. Hogeland (66 Md. 149), 393. V. Lehman (56 Md. 209), 366. V. Stinger (78 Pa. St. 219), 298. V. Williams (54 Pa. St. 103), 51. Phillips V. Duquesne Tract. Co. (183 Pa. St. 255), 310. V. Metropolitan Elev. Ry. Co. (12 App. t)iv. (N. Y.) 449), 192. V. Rensselaer & Saratoga R. R. Co. (49 N. Y. 177), 336. V. St. Charles St. Ry. Co. (146 La. 592), 345. V. Washington Ry. Co. (104 Md. 455), 456. Phipps V. West Maryland R. R. Co. (66 Md. 319), 78. Phoenix Lt. & Fuel Co. v. Bennett (8 Ariz. 314), 134. Phoenixville v. Phcenixville Iron Co. (45 Pa. St. 137), 254. Phyfe V. Manhattan Ry. Co. (30 Hun. 377), 216. Picard v. Ridge Ave. Pass. Ry. Co. (147 Pa. St. 195), 307, 336. Pierce v. Camden Ry. Co. (58 N. J. L. 400), 413, 470. V. Drew (136 Mass. 75), 128. Pikesville Ry. Co. v. Maryland (88 Md. 563), 413. Pine V. St. Paul City Ry. Co. (52 N. W. Rep. 392), 364, 372, 410. Pinkftrton v. Penna. Trac. Co. (193 Pa. St. 229), 10, 44. Pingry v. Washburn (1 Aiken 264), 220. Piper V. Minneapolis St. Ry. Co. (52 Minn. 269), 349. Pittsburgh, Allegheny & Manches- ter Pass. Ry. Co. v. Caldwell ( 74 Pa. St. 421), 326, 351, 385, 387. V. Donahue (70 Pa. St. 119), 371, 372. V. McCurdy (114 Pa. St. 554), 417. V. Pearson (72 Pa. St. 169), 387, 388, 390. Pittsburgh & Birmingham Pass. Ry. Co. V. Birmingham (51 Pa. St. 41), 13, 230, 241, 247. V. Pittsburgh (80 Pa. St. 72), 241. Pittsburgh & Castle Shannon R. Co. V. West Side Ry. Co. (32 Pitts. 11), 10. Pittsburgh & Connellsville R. R. Co. V. Pillow (76 Pa. St. 510), 370. V. S. W. Pa. R. R. Co. (77 Pa. St. 173), 220. Pittsburgh, Ft. Wayne & Chicago Ry. Co. V. Hinds (53 Pa. St. 512), 374. V. Vining (27 Ind. 513), 389. Pittsburgh Junction R. R. Co. v. Allegheny Valley R. R. Co. (146 Pa. St. 297), 118, 165. V. Fort Pitt. Ry. Co. (192 Pa. St. 45), 109. V. McCutcheon (7 Atl. Rep. 146), 186. Pittsburgh & Lake Erie R. R. Co. v. Bruce (102 Pa. St. 23), 99. Pittsburg Ry. Co. v. Browning (34 Ind. App. 90), 301. Ixxxviii TABLE OP CASES. Befereuces are Pittsburg Ry. Co. v. Muncie Trac. Co. (91 N. E. Rep. 600), 450. Pittsburgh Southern Ry. Co. v. Tay- lor (104 Pa. St. 396), 298. Pittsburg Testing Laboratory v. Milwaukee Elec. Ry. Co. (110 Wis. 633), 428. Pittsburgh, Virginia & Charleston Ry. Co. V. Commonwealth (101 Pa. St. 192), 12. Placke V. Union Depot Ry. Co. (140 Mo. 634), 83. Plant V. Long Island R. R. Co. (10 Barb. 26), 78. Piatt V. Forty-Second St. & Grand St. Ferry R. R. Co. (2 Hun 124), 326. Platz V. City of Cohoes (89 N.Y.219; 24 Hun 101), 366, 392. Pleasants v. North Beach & Mission R. R. R. Co. (34 Cal. 586), 325. Pleuler v. State (11 Neb. 547), 280. Ploof V. Burlington Tract. Co. (70 Vt. 509), 389, 390, 391. Plum V. Metropolitan Ry. Co. (91 App. Div. (N. Y.) 420), 348. Plymouth v. Chestnut Hill & N. Ry. Co. (168 Pa. St. 181), 47, 436. V. Plymouth S't. Ry. Co. (ig Kulp (Pa.) 308), 28. Pollock V. Brooklyn & Crosstown R. R. Co. (15 N. Y. Supp. 189), 361, 409. V. Eastern R. R. Co. (124 Mass. 158), 301. Pomaski v. Grant (119 Mich. 675), 341. Pomeroy v. ohicago & M. R. R. Co. (24 N. Y. 665), 78. V. Milwaukee & Chicago R. R. Co. (16 Wis. 640), 79. Pond V. Metropolitan Elevated Ry. Co. (42 Hun 567), 190, 192. V. Metropolitan Elevated Ry. Co. (112 N. Y. 186), 99, 191. Ponsano v. St. Charles Ry. Co. (52 La. Ann. 245), 315. Poole V. Consolidated Ry. Co. (100 Mich. 379), 331. V. Falls Ry. Co. (88 Md. 533), 94, 443, 445. Pope V. Kansas City Cable Ry. Co. (99 Mo. 400). 305, 306. V. Manhattan Ry. Co. (79 App. Div. (N. Y.) 583), 201. Port Richmond R. R. v. Staten Is. Ry. Co. (71 Hun 179), 115. to Sections. Porter v. Metropolitan Elevated Ry. Co. (120 N.Y.284),194, 198, 200, 201. v. North Missouri R. R. Co. (33 Mo. 128), 78. V. Seaside Ry. Co. (91 Hun 201), 195. Porth V. Manhattan Ry. Co. (58 N. Y. Super. 366), 190. Portland Ry. Co. v. Portland (181 Fed. Rep. 632), 446, 473. Portland, S. & P. R. R. Co. v. Boston & Maine R. R. Co. (65 Me. 122), 220. Portland & W. R. R. Co. v. Port- land (1 Ry. & Corp. L. J. 61), 3. Post V. Hartford St. Ry. Co. (72 Conn. 362), 348. Poster V. Denver Consol. Co. (11 Colo. App. 187), 337. Pott V. Forty-Second St. & Grand St. Ferry R. R. Co. (56 N. Y. Super. 151), 349. Potter V. Calumet Elec. Ry. Co. (158 Fed. Rep. 521), 28. V. CoUiS (19 Aj)p. Div. (N. Y.) 392; 156 N. Y. 16,), 3, 14. V. Leviton, (101 111. App. 544), 385. V. Saginaw Union Ry. Co. (83 Mich. 285), 83, 127. v. Scranton Tract. Co. (176 Pa. St. 271), 69. Potts V. Chicago City Ry. Co. (33 Fed. Rep. 610), 309, 321, 323. V. Quaker City Blev. Ry. Co. (161 Pa. St. 396), 1. Potwin Place v. Topeka Ry. Co. (51 Kan. 609), 6, 28, 30, 65. Poulin V. Broadway & Seventh Ave. R. R. Co. (61 N. Y. 621), 349. T. Broadway & Seventh Ave. R. R. Co. (34 N. Y. Super. 296), 349. Powell V. Macon Ry. Co. (92 Ga. 209), 12, 56. 95. Powers V. Brooklyn Blev. R. R. Co. (89, Hun 288. 157 N. Y. 105), 190, 195. V. City of Council Bluffs (45 Iowa 341), 102. v. Des Moines City Ry. Co. (115 N. W. Rep. 494), 380. V. Manhattan Ry. Co. (120 N. Y. 178), 197. V. Union Ry. Co. (60 Mo. App. 481), 328. Prather v. Richmond & Danville R. R. Co. (80 Ga. 427), 381. TABLE OF OASES. Ixxxix References are to Sections. Pratt V. Buffalo City Ry. Co. (19 Hun 30), 7. Pray v. Omalia St. Ry. Co. (44 Neb. 167), 338. Prescott & A. C. Ry. Co. v. Rees 28 Pac. Rep. 1134), 379. Preston v. Toronto R. W. Co. (11 Ontario L. Rep. 383), 297. Price V. Metropolitan St. Ry. Co. (220 Mo. 435), 361. Prime v. Twenty-Second St. R. R. Co. (1 Abb. N. C. 63), 98, 100. Pritcnard v. Brooklyn Heights Ry. Co. (89 App. Div. (N. Y.) 269), 303. Probasco v. Moundsville (11 W. Va. 501), 267, 269. Proprietors of Locks v. Lowell Horse R. R. Co. (109 Mass. 221), 248. Prospect Park R. R. Co. v. Coney Is. Ry. Co. (144 N. Y. 152), 474. Providence v. Union R. R. Co. (12 R. I. 473), 282, 284. Providence Life & Trust Co. v. Trenton Ry. Co. (177 Fed. Rep. 854), 427. Providence & Worcester R. R. Co. V. Wright (2 R. L 459), 271. Pryor v. Metropolitan St. Ry. Co. (85 Mo. App. 367), 354, 409., Pueblo Elec. St. Ry. Co. v. Sherman (25 Colo. 114), 385. Pueblo. Trac. Co. v. Allison (30 Colo. 337), 427. Puget Sound Elec. Ry. Co. v. Har- rigan (176 Fed. Rep. 488), 415. Pullman Palace Car Co. v. Barker (4 Colo. 344), 409. Purcell V. St. Paul City Ry. Co. (48 Minn. 34), 408. Purdy V. Manhattan Ry. Co. (13 N. Y. Supp. 295), 191. Purinton v. Somerset (174 Mass. 556), 443. Purtell V. Ridge Ave. Pass. Ry. ,Co, (3 Pa. Co. Ct. Rep. 273), 337. Putnam v. Broadway & Seventh Ave. R. R. Co. (55 N. Y. 108), 355 370, 374. Pyne v. Broadway & Seventh Ave. R. R. Co. (19 N. Y. Supp. 217), 312. Q Quebec St. Ry. Co. v. Quebec (15 Can. Supp. Ct. 164), 43. Queen v. Charlesworth (16 Q. B. 1012), 3. Queen v. Longton Gas Co. (2 El. & El. C. 651), 3. Quested v. Amesbury Horse R. R. Co. (127 Mass. 204), 425. Quill V. New York Central & Hud- son River R. R. Co. (11 N. Y. Supp. 80), 383. Quinn v. Atlantic Ave. R.R. Co. (12 N. Y. Supp. 223), 303. V. Boston Elev. Ry. Co. (188 Mass. 473), 458. V. Brooklyn Heights Ry. Co. (91 App. Div. (N. Y.) 489), 412, 413. V. Shamokin Elec. Ry. Co. (7 Pa. Super Ct. 19), 383. V. Shields (62 Iowa 129), 10. Quincy Horse Ry. & Carrier Co. v. Gnuse (38 111. App. 212), 320. V. Gnuse (27 N. E. Rep. 190), 399 V. Gnuse (26 111. App. 397), 379. Quincy v. Jones (76 111. 231), 76. Quinlan v. Sixth Ave. R. R. Co. (4 Daly 487), 332. Rae V. Grand Trunk Ry. Co. (11 Fed. Rep. 401), 220. Rafferty v. Central Traction Co. (147 Pa. St, 579), 1, 42, 82, 83, 84, 91, 101. Ragus V. Philada. Tract. Co. (182 Pa. St. 473), 91. Rahenkampf v. United Tract. Co. (14 Pa. Super. Ct. 635), 360. Rahn Township v. Tamaqua&Lans- ford St. Ry. Co. (167 Pa. St. 84), 56, 435, 443. Railroad v. Brown (17 Wall. 445), 425. Railroad Co. v. Bell (122 Pa. St. 58), 315. V. Bingham (87 Tenn. 522), 3. V. Fuller (17 Wall. 560), 220. V. Morrow (87 Tenn. 406), 210. V. Peckert (2 Cent. 791), 378, 409. V. Philadelphia (13 W. N. C. 487), 247. V. Philadelphia (6 Phila. 238), 280. V. Railroad Co. (3 Montg. 119), 110, 122. V. Richmond (96 U. S. 521), 4. V. Stout (17 Wall. 657), 292. V. Velleley (32 Ohio St. 345), 370. Railroad Commission Cases (116 U. S. 307), 232. Railroad Commissioners v. P. & O. Cen. R. R. Co. (63 Me. 269}, 65. 220. xc TABLE OF CASES. Beferences are to Sections. Raker v. Toledo & Indiana Ry. Co. (10 Ohio C. C. 297), 413. Raming v. Metropolitan St. Ry. Co. (157 Mo. 477), 326. Ramsay v. Montreal St. Ry. Co. (32 L. C. J. 52), 305, 309, 320. Ramson v. Metropolitan St. Ry. Co. (78 App. Dlv. (N. Y.) 101), 361. Randall v. Frankford & Southwark Pass. Ry. (8 Pa. Co. Ct. Rep. 277), 355. V. Frankford, Southwark & Phila- delphia City Pass. R. R. Co. (139 Pa. St. 464), 374. V. Jacksonville St. R. R. Co. (19 Fla. 409), 72, 82. Randle v. Birmingham Ry. Co. (158 Ala. 532), 297. V. Pacific R. R. Co. (65 Mo. 325), 79. Randolph v. Freeholders of Union (63 N. J. L. 155), 11. Ranken v. St. Louis Ry. Co. (98 Fed. Rep. 479), 83, 441. Ransom v. Citizens' Ry. Co. (104 Mo. 375), 51, 61, 82, 91. Rapid Ry. Co. v. Mt. Clemens (118 Mich. 133), 56. Rapid Trans. Ry. v. Comms. (5 App. Div. (N. Y.) 290), 28. Rapp. V. City, Stouts & Sedamsville R. R. Co. (12 W. L. B. 119), 20. Raritan River Ry. Co. v. Middlesex Trac. Co. (70 N. J. L. 732), 450. Rascher v. Detroit & Grosse Point Ry. Co. (90 Mich. 413), 299, 303, 316. Rathbone v. Union R. R. Co. (13 R. I. 709), 349. Raulston v. Phila. Trac. Co. (13 Pa. Super. Ct. 412), 300. Ray v. Cortlandt & Homer Trac. Co. (19 App. Div. N. Y.) 530), 237. Read v. Citizens' Ry. Co. (115 Ga. 366), 132, 292. Reading v. Reading St. Ry. Co. (215 Pa. St. 132), 257. V. Reading St. Ry. Co. (19 Pa. Super. Ct. 202), 244. V. United Trac. Co (21F Pa. St. 250), 250, 257. Reber v. Pittsburg Trac. Co. (179 Pa. St. 339), 339. Recktenwald v. Metropolitan St. Ry. Co. (120 Mo. App. 595), 380. Rector v. New York Elev. R. R. Co. (21 App. Div. (N. Y.) 47), 200. Rector v. Syracuse Ry. Co. (66 App. Div. (N. Y.) 395), 298. Reddington v. Philadelphia Trac- tion Co. (132 Pa. St. 154), 329, 336, 348, 350. Redfield v. Oakland Consol. St. Ry. Co. (110 Cal. 277), 308. Redford v. Spokane Ry. Co. (15 Wash. 419), 321. v. Spokane St. Ry. Co. (9 Wash. 55), 404. Reed v. Metropolitan EHevated Ry. Co. (18 N. Y. Supp. 811), 193. v. Minneapolis St. Ry. Co. (34 Minn. 557), 387, 390. V. Omnibus R. R. Co. (33 Cal. 212), 49. V. State (108 N. Y. 407), 99. Reem v. St. Paul St. Ry. Co. (77 Minn. 503), 338. Reeves v. Philada. Trac. Co. (152 Pa. St. 153), 127. Regents of University of Maryland v. Williams (9 Gill & J.365),44. Regina v. Toronto St. Ry. Co. (24 Up. Can. Q. B. 544), 43, 59. V. Train (110 Eng. C. L. 640), 3. Reid Bros. & Co. v. Norfolk City Ry. Co. (94 Va. 117), 83. Reilley v. Philada. Trac. Co. (176 Pa. St. 335), 306. Reilly v. Manhattan Ry. Co. (43 App. Div. (N. Y.) 80), 186. Reiners v. Washington & G. Ry. Co. (9 App. Cas. {D. C.) 19), 306. Reinig v. Broadway R. R. Co. (49 Hun 269), 415. Reining v. New York, Lackawanna & Western Ry. Co. (128 N. Y. 157), 82, 91. Remsen v. Metropolitan Bier. Ry. Co. (9 App. Dlv. (N. Y.) 533), 208. Rend v. Chicago West Div. Ry. Co. (8 111. App. 517), 303. Rennselaer v. Leopold (106 Ind.29), 185. Renwick v. New York Central R. R. Co. (36 N. Y. 132), 300. V. New York Elevated R. R. Co. (15 N. Y. Supp. 149), 191. Reynolds v. Larchmont Ry. Co. (83 App. Div. (N. Y.) 1891), 316. V. Pacific Ry. Co. (146 Cal. 261), 437, 475. V. Richmond Rv. Co. (92 Va. 400), 462, 464. Rhing V. Broadway & Seventh Ave. R. R. Co., (53 Hun 321), 384. TABLE OF CASES. XCl References are to Sections. Rice V. Crescent City Ry. Co. (51 La. Ann. 108), 305. V. Railroad Co. (1 Black 358), 33. Rich V. Asheville Slec. Co. (152 N. C. 689), 413. V. Manhattan Ry. Co. (19 N. Y. Supp. 543), 191. V. New York Central R. R. Co. (14 N. Y. Supp. 167), 195. Richardson v. Sibley (11 Allen 65), 423, 425. Richmond v. Chicago & West Mich- igan Ry. Co. (87 Mich. 374), 301. T. Richmond & Danville R. R. Co. (21 Gratt. 604), 267. T. Second Ave. Ry. Co. (76 Hun 233), 337. Richmond City Ry. Co. v. Scott (11 S. E. Rep. 404), 331. Richmond Ry. Co. v. Brown (97 Va. 26), 6, 28, 65. r. Garthright (92 Va. 627), 304. V, Richmond R. R. Co. (96 Va. 670), 114. V, Rubin (102 Va. 809), 134. V. West (100 Va. 184), 404. Richmond & Danville R. R. Co. v. Vance (93 Ala. 144), 379, 410. V. Yeamans (86 Va. 860), 379. Richmond & Manchester Ry. Co. v. Moore (94 Va. 493), 461. Ricketts v. Birmingham St. Ry. Co. (85 Ala. 600), 329, 337, 425. Riddle V. Forty-Second St. Ry. Co. (173 N. Y. 327), 314. Ridenhour v. Kansas City Cable Ry. Co. (102 Mo. 270), 349, 385, 404. v. Kansas City Cable Ry. Co. (14 S. W. Rep. 760), 345. Rider v. Fritchey (49 Ohio St. 285), 405. V. Syracuse R. T. Co. (171 N. Y. 139), 380. Ridge Ave. Pass. Ry. Co. v. Phila- delphia (10 Phlla. 37), 71. r. Philadelphia (124 Pa. St. 219), 247, 266. v. Philadelphia (181 Pa. St. 592), 92. Rledel v. Wheeling Trac. Co. (63 W. Va. 522), 380. Riggs v. St. Francois Ry. Co. (120 Mo.App. 335), 431, 432, 433, 440, 443 455, 459. Riley v. Cincinnati Trac. Co. (28 Ohio C. C. 626), 334. T. Galveston Ry. Co. (13 Tex. Civ. App. 247), 471. Riley v. Minneapolis St. Ry. Co. (83 Minn. 96), 312. Rio Grande R. R. Co. v. Browns- ville (45 Tex. 88), 40. Ripley v. Salt Lake R. T. Co. (10 Utah 428), 381. Rische v. Texas Trans. Co. (27 Tex. Civ. App. 33), 87, 90, 431, 440, 441, 442, 445, 468. Risdon I. & L. Wks. v. Citizens' Trac. Co. (122 Cal. 94), 422. Rittenhouse v. Wilmington St. Ry. Co. (120 N. C. 544), 412. Roake V. American Telegraph & Telephone-Co. (41 N. J. Bq. 35), 128. Riobare v. Seattle Trac. Co. (2t Wash. 577), 413. Roberts v. Easton (19 Ohio St. 78), 2, 18, 19, 24. V. Huntington Ry. Co. (105 N. Y. Supp. 1031), 63. V. Indianapolis St. Ry. Co. (158 Ind. 634), 413. V. Johnson (58 N.Y.613), 349, 361. V. New York Elevated R. R. Co. (128 N. Y. 455), 189, 190, 208, 209, 214 V. Spokane Ry. Co. (23 Wash. 325), 315. V. Terre Haute Elec. Co. (37 Ind. App. 664), 434, 439. Robertson v. St. Louis & Pacific Ry. Co. (84 Mo. 119), 229. Robinson v. Cane (22 Vt. 213), 389. v. Louisville Ry. Co. (112 Fed. Rep. 484), 316. V. Metropolitan St. Ry. Co. (91 App. Div. (N. Y.) 158), 393. V. New York Central & H. R. R. Co. (66 N. Y. 11), 393. V. Rockland St. Ry. Co. (87 Me. 387), 369. V. Rockland St. Ry. Co. (99 Me. 47), 456. V. Superior R. Trans. Co. (94 Wis. 345), 410. V. Toronto Ry. Co. (2 Ontario L. Rep. 18), 298. V. Wilkin sburg & E. Pitts. St. Ry. Co. (32 Pitts. 369), 429. Robira v. New Orleans Ry. Co. (45 La. Ann. 1368), 233. Robostelli v. New York. N. H. R-. H. R. R. Co. (33 Fed. Rep. 796), 346. Rochat V. North Hudson Ry. Co. (49 N. J. L. 445), 350. Roche V. Brooklyn City & Newtown R. R. Co. (105 N. Y. 294), 397. XCll TABLE OF CAS:CS. References are to Sections. Rochester Ky. Co. v. Rocbester (205 U. S. 236), 257. V. Rohman (133 N. Y. 243), 446. Rochester & Syracuse R. R. Co. v. Budlong (10 How. Pr. 289), 208. Rockford v. Blake (173 111. 354), 359. Rockford City Ry. Co. v. Matthews (50 111. App. 267), 255. Rockford R. I. & St. L. R. R. Co. v. Hillmer (72 111. 235), 220. Rockwell V. Third Ave. R. R. Co. (64 Barb. 438), 243, 262, 263. Rocky Mountain Bell Telephone Co. V. Salt Lake Citf Ry. Co. (Un.- reported), 135, p. 262. Roddy V. Brooklyn City & N. R. R. Co. (32 App. Dlv. (N. Y.) Sll), 36. Roebllng v. Trenton Pass. Ry. Co. (58 N. J. L. 666), 83, 130. Rogers v. Galveston City R. R. Co. (76 Tex. 502), 413. Rohlof V. Fair Haven Ry. Co. (76 Conn. 689), 385. Roll V. Augusta Council (34 Ga. 326), 16. Roller V. Sutter St. R. R. Co. (66 Cal. 230), 309, 323, 387, 389, 390. Rollins V. Clay (33 Me. 132), 422. Romano v. Vicksburg' Ry. & Lt. Co. (39 So. Rep. 781), 134. Romer v. St. Paul City Ry. (75 Minn. 211), 11, 91, 95. Roosevelt v. New York Elevated R. R. Co. (57 N. Y. Super. 438), 191, 208. Root V. Des Moines Ry. Co. (113 Iowa 675), 337. V. Des Moines Ry. Co. (122 Iowa 469), 308. Rose V. West Philadelphia Ry. Co. (9 Sadler (Pa.) 313), 346. Rosenbaum v. Meridian L. & R. R. Co. (38 So. Rqp. 321), 77. Rosenberg v. Brooklyn Ry. Co. (91 App. Div. (N. Y.) 580), 237. v. Third Ave. Ry. Co. (47 App. Div. (N. Y.) 323), 365. Rosenkranz v. Lindell Ry, Co. (18 S. W. Rep. 690), 305, 310, 387, 388, 389, 403, 409. Rosenstein v. Fair Haven & W. R. Co. (78 Conn. 29), 292. Ross v. Metropolitan Elevated R. R. Co. (57 Super. 412; 8 N. Y. Supp. 495), 190, 191. V. Montreal St. Pass. Ry. Co. (24 L. C. J. 60), 94. Rost V. Brooklyn Heights Ry. Co. (10 N. Y. App. Div. (N. Y.) 477), 407. Rouse V. Detroit Elec. Ry. Co. (128 Mich. 149), 316. V. Metropolitan St. Ry. Co. (41 Mo. App. 298), 410. Rouser v. Washington & George- town Ry. Co. (13 App. Cas. (D. C.) 320), 349. Rowell V. Stamford St. Ry. Co. (64 Conn. 376), 290. Rowen v. New York, New Haven & Hartford R. R. Co. (59 Conn. 364), 379. Rown V. Christopher & Tenth St. R. R. Co. (34 Hun 471), 364, 373. Ruckert v. Grand Ry. Co. (163 Mo. 260), 83. Rude v. City of St. Louis (93 Mo. 408), 16. Rudgeair v. Reading Trac. Co. (180 Pa. St. 333), 372. Ruggles V. Illinois (108 U. S. 526), 33. Ruppel V Manhattan Ry. Co. (13 Daly 11), 211. V. United Rys. (1 Cal. App. 666), 472. Ruschenberg v. Southern Elec. Ry. Co. (161 Mo. 70), 399. Rusk V. Manhattan Ry. Co. (46 App. Div. (N. Y.), 100), 214. Russell V. Shreveport Ry. Co. 50 La. Ann. 501), 308. Rutherford v. Hudson River Trac. Co. (73 N. J. L. 227), 261. Rutland Elec, Lt. Co. v. Marble City Elec. Lt. Co. (65 Vt. 377), 135, p. 265. Ryan v. La Crosse City Ry. Co. (108 Wis. 122), 385. V. Louisville, N. O. & T. Ry. Co. (11 So. Rep. 30), 381. V. Manhattan Ry. Co. (121 N. Y. 126), 214. Ryberg v. Portland Cable Ry. Co. (22 Ore. 224), 302. Saare v. Union Ry. Co. (20 Mo. App. 211), 35L Sacramento v. California Stage Co. (12 Cal. 134), 279. Saddler v. South Staflfordshire & Birmingham District Steam Tramway Co. (23 L. R. Q. B. D. 17), 425. TABLE OF CASES. XClll References are to Sections. SafEer v. Dry Dock, East Broadway & Battery R. R. Co. (5 N. Y. Supp. 700), 337. Saginaw Ry. Co. v. Bohn (27 Mich. 503), 387. Sahlgaard v. St. Paul City Ry. Co. (51 N. W. Rep. Ill), 336, 348. Saiko V. St. Paul City Ry. Co. (67 Minn. 8), 345. Saltman v. Boston Ry. Co. (187 Mass. 243), 315. Sample v. Consolidated Ry. Co. (50 W. Va. 472), 387. Sams V. St. Louis Ry. Co. (174 Mo. 53), 471. San Antonio v. San Antonio St. Ry. Co. (15 Tex. Civ. App. 1), 42. v. San Antonio St. Ry. Co. (22 Tex. Civ. App. 148), 268, 273. San Antonio & Arkansas Pass. Ry. Co. V. Bennett (76 Tex. 151), 381. San Antonio St. Ry. Co. v. Cail- louette (79 Tex. 341), 306, 310, 390, 404. V. Hamer (87 Tex. 628), 309. V. Helm (64 Tex. 147), 349. V. Limburger (88 Tex. 79), 77, 83, 91, 94. V. Renken (15 Tex. Civ. App. 229), 83 V. Texas (90 Tex. 520), 51, 65. Sanders v. New York Elevated R. R. Co. (15 Daly 388), 191. V. Reister (1 Dak. 151), 381. Sanford v. Eighth Ave. R. R. Co. (23 N. Y. 343), 371, 372, 410. V. Hestonville, Mantua & Fair- mount R. R. Co. (136 Pa. St. 84), 351. V. Pawtucket St. Ry. Co. (19 R. I. 537), 394. San Francisco Ry. Co. v. Scott (142 Cal. 222), 431, 432, 452, 455. San Jose v. San Jose & Santa Clara R. R. Co. (53 Cal. 475), 279. Santa Rosa City R. R. v. Central St. Ry. Co. (112 Cal. 436), 45. Sappenfield v. Main St. & A. P. Ry. Co. (91 Cal. 48), 402, 403. Savage v. Chicago Ry. Co. (238 111. 392), 319. V. Shaw (195 Mass. 571), 405. Savannah St. Ry. Co. v. Bryan (86 Ga. 312), 372. V. Jackson (95 Ga. 366), 320. V. Mayor (198 V. S. 392), 452. V. Savannah (112 Ga. 164), 278, 280. V. Williams (117 Ga. 414), 471. Savannah & Thunderbolt Ry. Co. V. Savannah (45 Ga. 602), 3, 11, 75, 82. Saverio v. Brooklyn Ry. Co. (55 App. Div. (N. Y. 98), 290. Sawyer v. Vermont R. R. Co. (105 Mass. 196), 220. Saylor v. Union Trac. Co. (40 Ind. App. 381), 303. Saxton v. New York Blev. R. R. Co. (12 App. Div. (N. Y.) 263), 191. Schaaf v. Cleveland Ry. Co. (66 Ohio St. 215), 78, 128, 431, 440, 441, 468. Schacherl v. St. Paul City Ry. Co. (42 Minn. 42), 336. Schaefer v. Fond du Lac (99 Wis. 333), 255. Schaper v. Brooklyn & Long Island Cable Ry. Co. (124 N. Y. 630), 14. Schauster v. Toledo Consol. St. Ry. Co. (60 Ohio St. 619), 315. Schenectady Ry. Co. v. Peck (88 App. Div. (N. Y.) 201), 446. V. United Trac. Co. (89 N. Y. Supp. 931), 110. Schenectady & Saratoga Plank Road Co. V. Thatcher (11 N. Y. 102), 37. Schepers v. Union Depot Ry. Co. (126 Ma. 665), 326. Schierhold v. North Beach Mission R. R. Co. (40 Cal. 447), 387, 389, 391. Schild V. Central Park, North & East River R. R. Co. (16 N. Y. Supp. 701), 292. Schilling v. Metropolitan St. Ry. Co. (47 App. Div. (N. Y.) 500), 316. Sohiverea v. Brooklyn Heights Ry. Co. (89 App. Div. (N. Y.) 340), 290. Schmid v. Humphrey (48 Iowa 652), 366. Schmidt v. Coney Is. Ry. Co. (26 App. Div. (N. Y.), 391), 360. V. Interurban St. Ry. Co. (82 App. Div. (N. Y.) 453), 315. V. New York Elev. R. R. Co. (2 App. Div. (N. Y.) 481), 208. v. North Jersey St. Ry. Co. (66 N. J. L. 424), 336. V. Steinway & Hunter's Point R. R. Co. (55 Hun. 496; 29 N. Y. St. Rep. 201), 327. V. Steinway & Hunter's Point R. R. Co. (132 N. Y. 566), 314. V. St. Louis Ry. Co. (149 Mo. 269), 306. V. St. Louis Ry. Co. (163 Mo. 645), 223. XCIV TABLE OF CASES. Befereuces are to Sections. Schmitt V. Milwaukee St. Ry. Co. (89 "Wis. 195), 410. Schmitz V. Union Elevated R. R. Co. (50 Hun. 407), 161. Schneider v. Market St. Ry. Co. (134 Cal. 482), 300. V. Second Ave. R. R. Co. (15 N. Y. Supp. 556), 332, 335, 362, 363. V. Second Ave. R. R. Co. (30 N. E. Rep. 752), 328, 332, 362, 363. Schoen v. Dry Dock, Bast Broadway & Battery R. R. Co. (58 N. Y. Super. 149), 323. Schoenfield v. Milwaukee City Ry. Co. (74 Wis. 433), 341, 378. Schroeder v. Chicago, R. I. & P. R. R. Co. (41 Iowa 344), 407. Schron v. Staten Island Ry. Co. (16 App. Div. (N. Y.) 111). 393. Schulte v. New Orleans City & Lake R. R. Co. (44 La. Ann. 509), 305, 312 Schultz' V. Third Ave. R. R. Co. (89 N. Y. 242), 372. Schulz V. Second Ave. Ry. Co. (12 App. Div. (N. Y.) 445), 361. Schur V. Citizens' Trac. Co. (153 Pa. St. 29), 306. Schurmeir v. St. Paul & B. R. R. Co. (10 Minn. 82), 78. Schuster v. Milwaukee Ry. Co. (142 Wis. 578), 440, 441, 445. Schuylkill County v. Citizens' Gas Co. (148 Pa. St. 162), 267. Schwanewede & North Hudson Ry. Co. (67 N. J. L. 449), 311. Schwartz v. Cincinnati St. Ry. Co. (8 Ohio C. C. 484), 341. V. Crescent City R. R. Co. (30 La. Ann. 15), 303, 403. Schwartzman v. Brooklyn Heights Ry. Co. (84 App. Div. (N. Y. 608), 372. Schwarzbaum v. Third Ave. Ry. Co. (54 App. Div. (N. Y.) 164), 300. Schwede v. Brewing Co. (29 Wash. 21), 81, 100. Scotland County v. Missouri, I. & N. R. R. Co. (65 Mo. 123), 267. Scott V. Bergen Trac. Co. (63 N. J. L. 407), 345, 464. V. Central Park, North & East River R. R. Co. (53 Hun 414; 6 N. Y. Supp. 382), 372. V. Manhattan Ry. Co. (17 N. Y. Supp. 364), 200. V. Third Ave. R. R. Co. (59 Hun 456; J 6 N. Y. Supp. 350; 36 N. Y. St. Rep. 838), 312, 378, 380. Scranton v. Scranton L. & H. Co. 33 Pa. Super. Ct. 431), 272. Sea Beach Ry. v. Coney Is. & G. Ry. Co. (22 App. Div. (N. Y.) 477), 20. Searles v. Elizabeth Ry. Co. (70 N. J. L. 388), 309. V. Manhattan Ry. Co. (101 N. Y. 611), 21L Sears v. Crocker, (184 Mass. 586). 88. v. Marsh alltown St. Ry. Co. (66 Iowa 742), 13, 82, 91. V. Seattle St. Ry. Co. (6 Wash. 227), 383. Seattle v. Columbia & P. S. R. Co. (6 Wash. 379), 17. Second & Third St. Pass. Ry. Co. v. Green & Coates St. Pass. Ry. Co. (3 Phila. 430), 108, 113, 114, 115. V. Morris (8 Phila. 304), 303. V. Philadelphia (51 Pa. St 466), 274, 286, 287. Seeback v. Metropolitan Elevated R. R. Co. (18 N. Y. Supp. 208), 190. Seldlinger v. Brooklyn City Ry. Co. (28 Hun. 503), 360. Seifred v. Penna. R. R. Co. (208 Pa, St. 399), 393. Seigel V. Eisen (41 Cal. 109), 340. Seither v. Philadelphia Traction Co. (125 Pa. St. 397), 406. Seitz V. Dry Dock, E. B. & B. R. B.. Co. (16 Daly 264; 10 N. Y. Supp. 1) 336 345 349. Selby V. Detroit Ry. Co. (122 Mich. 311), 349. Selectmen of Gardner v. Templeton St. Ry. Co. (184 Mass. 294), 242. Selma St. Ry. Co. v. Owen (130 Ala. 420), 301. Senft V. Manhattan Ry. Co. (57 N. Y. Super. 417), 200. Senn v. Southern Ry. Co. (18 S. W. Rep. 1007), 400. Seventh Ward National Bank v. New York Elevated R. R. Co. (53 N. Y. Sniper. 412), 200. Sexton V. New York Elevated R. R. Co. (18 N. Y. Supp. 188), 209. V. West Roxbury Ry. Co. (188 Mass. 139), 457, 458. Seymour v. Town of Lake (66 Wis. 651), 395. Shade v. Union Trac. Co. (20 Pa. Co. Ct. Rep. 292), 345. Shadford v. Detroit, Y. & A. A. Ry Co. (130 Mich. 300), 429. Shamokin Borough v. Shamokin & Mt. C. Elec. Ry. Co. (196 Pa St. 166), 51, 62. TABLE OF CASES. XCV References are to Sections. Shankenbery v. Metropolitan St. Ry. Co. (46 Fed. Rep. 177), 383. Sharp V. Kansas City Cable Ry. Co. (20 S. W. Rep. 93), 332. Shaw V. Boston & Worcester R. R. Co. (8 Gray 45), 301. V. Craft, (37 Fed. Rep. 317), 392. Shea V. Manhattan Ry. Co. (15 Daly 528), 217. V. Potrero & Bay View R. R. Co. (44 Cal. 414), 299, 300. 303, 313. V. Sixth Ave. R. R. Co. (5 Daly 221), 372. T. Sixth Ave. R. R. Co. (62 N. Y. 180), 304, 372. V. St. Paul City Ry. Co. (52 N. W. Rep. 902), 315. Sheehy v. Kansas City Cable Ry. Co. (94 Mo. 574), 92. Sheeron v. Coney Is. Ry. Co. (78 App. Div. (N. Y.) 476), 341. Sheets v. Connolly St. Ry. Co. (54 N. J. L. 518), 307, 308, 310, 311, 312, 385. Sheff V. City of Huntington, (16 W. Va. 307), 381. Sheffield v. Central Union Tele- phone Co. (36 Fed. Rep. 164), 392, 393. Shelbyville Water Works Co. v. People (140 111. 545), 272. Shelly V. Brunswick Tract. Co. (65 N. J. L. 639), 305. Shelton v. Lake Shore & Michigan Southern Ry. Co. (29 Ohio St. 214), 237. Shenners v. West Side St. Ry. Co. (78 Wis. 382), 310. Sliepard v. Manhattan Ry. Co. (57 N. Y. Super. 5), 191, 192. V. Manhattan Ry. Co. (131 N. Y. 215), 205. y. Metropolitan Elev. Ry. Co. (48 App. Div. (N. Y.) 452; 82 Hun 527), 196, 198. V. Missouri Pacific R. R. Co. (85 Mo. 629), 407. Sheridan v. Brooklyn & Newtown R. R. Co. (36 N. Y. 39), 330, 355. Sherwood v. Metropolitan Elevated Ry. Co. (12 N. Y. Supp. 852; 58 Hun. 611), 195, 196. Shields v. Ohio (95 V. S. 319, 324), 37. Shipley V. Continental R. R. Co. (13 Phlla. 128), 1, 11. V. Metropolitan St. Ry. Co. (126 S. W. Rep. 768), 313. Shippy V. Village of Au Sable (48 N. W. Rep. 584), 389. Short V. Baltimore City Pass. Ry. Co. (50 Md. 73), 98. Shteveport Trac. Co. v. Shreveport (122 La. 1), 233. Shugard v. Union Trac. Co. (201 Pa. St. 562), 411, 412. Sias V. Lowell, Lawrence & H. St. Ry. Co. (179 Mass. 343), 132, 314. V. Rochester Ry. Co. (18 App. Div. (N. Y.) 506), 344. Sibley v. Smith (46 Ark. 275), 407. Siek V. Toledo Consol. St. Ry. Co. (16 Ohio C. C. 393), 303, 316. Siefke v. Manhattan Ry. Co. (14 N. Y. Supp. 763), 191, 198. Silberstein v. Houston, West St. & Pavonia Ferry R. R. (4 N. Y. Supp. 843), 305. v. Huston, West St. & Pavonia Ferry R. R. Co. (117 N. Y. 293), 293. Sillcock V. New York Elevated R. R. Co. (19 N. Y. Supp. 476), 208. Silsby V. Lyle (117 Mich. 327), 55. Simmons v. City of Toledo (5 Ohio C. C. 124), 23, 24, 26, 83. V. Shreveport Gas, E. L. & P. Co. (116 La. Ann. 1033), 363. Simonds v. East Windsor Blec. Ry. Co. (73 Conn. 513), 422. Simonton v. Citizens' Elec. L. & P. Co. (28 Tex. Civ. App. 374), 29. Sims V. Brooklyn St. R. R. Co. (37 Ohio St. 566), 63. V. Metropolitan St. Ry. Co. (65 App. Div. (N. Y.) 270), 345. Sinking Fund Cases (99 U. S. 700), 38. Sioux City Elec. Sup. Co. v. Sioux City & L. Elec. Ry. Co. (106 la. 573), 428. Sioux City St. Ry. Co. v. Sioux City (78 Iowa 367), 5, 36, 242. V. Sioux City (138 U. S. 98), 95, 36, 242. Sipes V. Puget Sound Ry. Co. (54 Wash. 47), 469, 470. Sixth Ave. Ry. Co. v. Gilbert Ele- vated Ry. Co. (43 N. Y. Super. 292), 187. V. Gilbert Elevated R. R. Co. (3 Abb. N. C. 372), 189. V. Kerr (45 Barb. 138; 72 N. Y. 330), 110, 114, 116. V. Manhattan Ry. Co. (14 N. Y. Supp. 97), 195. V. Metropolitan Elevated Ry. Co. (56 Hun 182), 190, 209. SkaneatelM Water Wks. Co. v. Skaneateles (161 N. Y. 154), 17. xcvi TABLE OF CASES. Beferences are to Sections. Skelly V. Montville Ry. Co.' (67 Conn. 261), 432, 434. Slater v. Manhattan Ry. Co. (18 N. Y. Supp. 531), 195. Slatten v. Des Moines Valley R. R. Co. (29 Iowa 148), 78. Slattery v. O'Connell (26 N. B. Rep. 430), 389. Slaughter v. Metropolitan St. Ry. Co. (116 Mo. 269), 404. Slayton v. West End St. Ry. Co. (174 Mass. 55), 290. Sleeg V. St. Paul City Ry. Co. (52 N. W. Rep. 393), 348. Sleeper v. Goodwin (67 Wis. 577), 38. Sloan V. New York Elevated R. R. Co. (63 Hun 300), 190. V. New York Elevated R. R. Co. (17 N. Y. Supp. 769), 195. V. Pacific R. R. Co. (61 Mo. 24), 220. Sluder v. St. Louis Trans. Co. (189 Mo. 107), 229. Sly V. Union Depot Ry. Co. (134 Mo. 681), 336. Smathers v. Pittsburg St. Ry. Co. (226 Pa. St. 212), 315. Smedis v. Brooklyn & Rockaway Beach R. R. Co. (23 Hun 279), 300. Smedley v. Hestonville Pass. Ry. Co. (184 Pa. St. 620), 409. Smith V. Boston & Maine R. R. Co. (120 Mass. 490), 366. V. Central District Printing & Telegraph Co. (2 Ohio C. C. 259), 128. V. Connecticut Ry. Co. (80 Conn. 268), 380. V. Corporation of Washington (20 How. 135), 240. V. Crescent City Ry. Co. (47 La. Ann. 833), 313. V. East End St. Ry. Co. (87 Tenn. 626), 82, 86, 91. V. Eastern R. R. Co. (35 N. H. 356), 220, 381. V. Grand St. Ferry R. R. Co. (11 Abb. N. C. 62), 389. V. Hestonville, Mantua & Fair- mount Pass. Ry. Co. (92 Pa. St. 450), 387, 390. V. Indianapolis St. Ry. Co. (158 Ind. 425), 25, 43. V. Jackson Trac. Co. (137 Mich. 20), 435. V. Kingston City Ry. Co. (55 App. Div. (N. Y.) 143), 349, V. Manhattan Ry. Co. (112 App Div. (N. Y.) 202), 460, 470. Smith V. Manhattan Ry. Co. (20 Wash. Law Rep. 593), 372. V. Metropolitan St. Ry. Co. (92 App. Div. (N. Y.) 213), 360. V. Milwaukee Elec. Ry. Co. (119 Wis. 336), 360. V. Nashua St. Ry. Co. (69 N. H. 504), 294. V. New York Elevated R. R. Co. 18 N. Y. Supp. 132), 190. V. Pbiladelphia City Pass. Ry. Co. (12 W. N. C. 177), 272. V. Philada. Trac. Co. (3 Pa. Super Ct. 129), 303. V. Reading City Pass. Ry. Co (13 Pa. Co. Ct. Rep. 49), 424. V. Rochester Ry. Co. (118 N. Y. Supp. 78), 385, 389. V. St. Paul City Ry. Co. (79 Minn. 254), 309. V. St. Paul City Ry. Co. (32 Minn. 1), 326, 327, 328, 331, 360, 361, 407. V. Union Ry. Co. (61 Mo. 588), 292, 318. Smithwick v. Hall & Upson Co. (59 Conn. 261), 378. Snider v. New Orleans Ry. Co. (48 La. Ann. 1), 315. Snouffer v. Cedar Rapids Ry. Co. (118 Iowa 287), 40, 62. Snow V. Indianapolis Ry. Co. (93 N. E. Rep, 1089), 456, 457, 469. Snyder v. Ft. Madison St. Ry. Co. (105 Iowa 284), 83, 130. V. Pennsylvania R. R. Co. (55 Pa. St. 340), 78. V. Wheeling Elec. Co. (43 W. Va. 661), 292. Sobel V. New York Elevated Ry. Co. (9 N. Y. Supp. 342), 19L v. New York Elevated R. R. Co. (31 N Y. St. Rep. 114), 187 Solatlnaro v. Jersey City Ry. Co. (70 N. J. L. 154), 315. Solomon v. Central Park, North & East River R. R. Co. (1 Sweeny 298), 338, 385. V. Manhattan Ry. Co. (31 Hun 5), 216. V. Manhattan Ry. Co. (103 N. Y. 438), 216. Somerville v. City R. R. Co. (17 N. Y. Supp. 719), 294. Sommer v. New York Elevated Ry. Co. (14 N. Y. Supp. 619), 198. Sommers v. City of Cincinnati (8 Am. Law Rec. 612), 19, 20, 24, 43, 61, 63. TABLE OF CASES. XCVll References are to Sections. Soudinger v. Newark (28 N. J. Eq. 187), 82. South Bay Meadow Diamond Co. v. Gray (30 Me. 547), 38. South Boston R. R. Co. v. Middlesex R. R. Co. (121 Mass. 485), 63. South Chicago City Ry. Co. v .Chi- cago (196 111. 490), 277. V. Chicago Elec. St. Ry. Co. (171 111. 391), 110. V. Dufresne (102 111. App. 493), 336. South Covington St. Ry. Co. v. Bellevue (105 Ky. 283), 267, 268. V. Cleveland (30 Ky. Law Rep. 1072), 410. V. Core (29 Ky. Lew Rep. 836), 464. V. Herrklotz (104 Ky. 400), 385, 389, 458. South Covington & Cincinnati St Ry. Co. V. Berry (93 Ky. 43), 225. V. Ware (84 Ky. 267), 383. South East Ry. Co. v. Evansville Ry. Co. (169 Ind. 339), 433, 450. South Florida R. R. Co. v. Rhodes (25 Pla. 40), 356. South Park Commissioners v. C. B. & Q. R. R. Co. (107 111. 105), 275. South Pasadena v. Los Angeles Term. Ry. Co. (109 Cal. 315), 233. South Shore Trac. Co. v. Brook- haven (102 N. Y. Supp. 75), 50. South Side Pass. Ry. Co. v. Second Ave. Pass. Ry. Co. (191 Pa. St. 492), 426. v. Trich (117 Pa. St. 390), 350. South & North Ala. R. R. Co. v. Highland Ave. & B. R. R. (117 Ala. 395), 110. v. Highland Ave. Ry. Co. (119 Ala. 105), 9. Southern Elec. L. & P. Co. v. Phila- delphia (191 Pa. St. 170), 269. Southern Express Co. v. Texar- kana "Water Co. (54 Ark. 131), 290. Southern Kansas Rv. Co. v. Hins- dale (38 Kan. 507), 372. V. Walsh (26 Pac. Rep. 45), 328. Southern Pacific R. R. Co. v. Reed (41 Cal. 256), 78. Southern Ry. Co. v. Atlantic Rv. Co. (Ill Ga. 679), 83, 431, 441, 450. V. Memphis (97 Fed. Rep. 819), 30, 51. Sowash V. Consol. Trac. Co. (188 Pa. St. 618), 352. Spade V. Lynn Ry. Co. (168 Mass. 285), 408. V. Lynn Ry. Co. (172 Mass. 488), 374. Spader v. New York Elevated R. R. Co. (3 Abb. N. C. 467), 185. Spalding v. Macomb Ry. Co. (225 111. 585), 1. V. Quincy St. Ry. Co. (184 Mass. 470), 349. Sparhawk v. Union Pass. Ry. Co. (54 Pa. St. 401), 74. Spaulding v. Jarvis (32 Hun 621), 321. Spearman v. California St. R. R. Co. (57 Cal. 432), 350. Spellman v. Lincoln Ry. Co. (36 Neb. 890), 328. Spencer v. Metropolitan St. Ry. (58 Mo. App. 513), 84, 102. v. M. & P. du C. R. R. Co. (17 Wis. 487), 466. v. St. Louis Trans. Co. (222 Mo. 310), 226. Sperb V. Metropolitan Elev. Ry. Co. (137 N. Y. 155), 177. V. Metropolitan Elevated Ry. Co. (17 N. Y. Supp. 469), 193, 195. Spicer v. Lynn & Boston R. R. Co. (149 Mass. 207), 409. SpofEord V. Harlow (3 Allen 176), 302, 341. Spokane St. Ry. Co. v. Spokane (46 Fed. Rep. 322), 58, 59. V. Spokane (5 Wash. 634), 42. V. Spokane Falls (6 Wash. 521), 57, 59. Spooner v. Brooklyn City R. R. Co. (36 Barb. 217; 31 Barb. 419), 34L V. Brooklyn City R. R. Co. (54 N. Y. 230), 341. Spring City Borough v. Montgom- ery Ry. (35 Pa. Super. Ct. 533), 49. Springfield v. Robberson Ave. R. R. (69 Mo. App. 514), 49. V. Smith (138 Mo. 645), 281. V. Springfield St. Ry. Co. (182 Mass. 41), 72. Springfield Consol. Ry. Co. v. Ankron (93 111. App. 655), 298. V. Clark (51 111. App. 626), 315. V. Flynn (55 111. App. 600), 374. V. Hoeffner (175 111. 634), 337. V. Puntenney (101 111. App. 95), 363. e XCVlll TABLE OF CASES. Keferences are to Sections. Springfield Ry. Co. v. Springfield (58 Mo. 674), 5. Spurrier v. Front St. Cable Ry. Co. (29 Pac. Rep. 346), 302, 381. Squire v. Central Park, North & East River R. R. Co. (36 N. Y." Super. 436), 381, 385. Stacey v. Metropolitan Elev. R, R. Co. (15 App. Div. (N. Y.) 534), 196. Stafford v. Chippewa Valley Ry. Co. (110 Wis. 331), 238. Stager v. Ridge Ave. Pass. Ry. Co. (119 Pa. St. 70), 336, 343. Stahman v. Atlantic Ave. Ry. Co. (155 N. Y. 511), 458. Stamford v. Stamford Horse R. R. Co. (56 Conn. 381), 12, 57. Stange v. Hill & West Dubuque St. Ry. Co. (54 la. 669), 12, 86, 91. V. City of Dubuque (62 Iowa 303), 15, 16. Stanley v. Davenport (54 Iowa 463), 82, 86, 91. Stanton v. Metropolitan R. R. Co. (14 Allen 485), 366. V. Scran ton Trac. Co. (11 Pa. Super. Ct. 180), 98, 294. V. Wllkeson (8 Benedict 357), 405. Starr v. Camden & Atlantic R. R. Co. (24 N. J. L. 592), 78, 86. V. North Side Trac. Co. (193 Pa. St. 536), 95, 97. Stastney v. Second Ave. R. R. Co. (18 N. Y. Supp. 800), 326, 412. State Bank v. Knoop (16 How. 369) 38 V. People (5 111. 303), 268. State V. Adams (44 Mo. 570), 44. V. Addison (2 S. C. 499), 267. V. Aison (2 S. C. 499), 267. V. Anderson (90 Wis. 550), 272, 273. V. Bailey (16 Ind. 46), 429. V. B. & O. R. R. Co. (24 W. Va. 783), 220. V. Bechel (22 Neb. 158), 28. V. Bell (34 Ohio St. 194), 15, 25. V. Board of Assessors (48 La. Ann. 1156), 273. V. Boston & Maine R. R. Co. (80 Me. 430), 262, 393. V. Canal R. R. Co. (44 La. Ann. 526; 50 La. Ann. 1189), 230, 248, 261. V. Central New Jersey Telephone Co. (21 Atl. Rep. 460), 128. V. Chicago, B. & Q. R. R. Co. (45 N. W. Rep. 469), 65. State V. Cincinnati Ry. Co. (19 Ohio C. C. 79), 438, 473. V. Cincinnati Gas L. Co. (18 Ohio St. 262), 44. V. Citizens' Ry. Co. (80 Neb. 357), 28. V. City Engineer (49 La. Ann. 676), 60. V. City of Newark (27 N. J. L. 185), 269, 275, 277. V. City of Passaic (54 N. J. L. 340), 278. V. City of Trenton (23 Atl. Rep. 281), 67, 68, 127. V. City of Trenton (20 Atl. Rep. 1076), 222, 224. V. Cleveland (93 N. E. Rep. 467), 432, 451. V. Cockrem (25 La. Ann. 356), 51, 60. V. Corrigan Consol. St. Ry. Co. (85 Mo. 263), 9, 15, 241, 242, 244. V. Columbus Ry. Co. (24 Ohio C. C. 609), 17. V. Commercial Bank (7 Ohio 125), 268. V. Cozzens (42 La. Ann. 1069), 301. V. Critchett (37 Minn. 13), 10. v> Cumberland Ry. Co. (106 Md. 529), 457. V. Dayton Trac. Co. (64 Ohio St. 272), 1, 5, 430, 468, 474. V. Dexter & Newport Ry. Co. (69 Me. 44), 267. V. District Court of Ramsey County (33 Minn. 164), 240. V. Duluth Gas & Water Co. (76 Minn. 97), 1. V. Duluth St. Ry. Co. (88 Minn. 158), 65. V. East Cleveland R. R. Co. (6 Ohio C. C. 318), 43. V. East Fifth St. Ry. (140 Mo. 539), 49, 51. V. Einstein (46 N. J. L. 479), 261. V. Fagan (22 La. Ann. 545), 750. V. Foley (31 Iowa 527), 220, 303. V. Frost (78 Neb. 326), 29. V. Grand Trunk Ry. Co. (58 Me. 176), 372. V. Hannibal & St. Joe R. R. Co. (75 Mo. 208), 267. V. Hartford & New Haven E. R. Co. (29 Conn. 538), 65. V. Hartford St. Ry. Co. (76 Conn. 174), 59. V. Haskins (58 Minn. 35), 231. TABLE OF CASES. XCIX Eeferences are to Sections. State V. Heidenhain (42 La. Ann. 483), 224, 238. V. Helena P. & L. Co. (22 Mont. 391), 51, 65. V. Henderson £38 Ohio 644), 55. V. Hubert (12 Wis. 184), 282,283. V. Herod (29 Iowa 123), 279, 282. V. Hoboken (35 N. J. L. 205), 3. V. Hoboken (30 N. J. L. 225), 224, 234, 280. V. Home St. Ry. Co. (43 Neb. 830), 65. V. Jacksonville St. R. R. Co. (10 So. Rep. 590), 3, 261. V. Janesville St. Ry. Co. (87 Wis. 72), 65. V. Jersey City (29 N. J. L. 170), 220. V. Jersey City (9 Atl. Rep. 782), 268. V. Jersey City (37 N. J. L. 348), 220. V. Jersey City (49 N. J. L. 303), 40. V. Judges (19 Neb. 149), 65. V. Klmber (4 Weekly Law Gaz. 359), 325. V. Lake St. Elec. Ry. Co. (54 111. App. 348), 24. V. Latrobe (81 Md. 222), 48. V. Madison gt. R. Co. (72 Wis. 612), 49, 52, 58. V. Manchester & Lawrence R. R. Co. (52 N. H. 528), 380. V. McDonald (7 Mo. App. 510), 372. V. Milwaukee, Burlington & L. G. Ry. Co. (116 Wis. 142), 12. V. Minneapolis St. Ry. Co. (130 N. W. Rep. 71), 452. V. Minneapolis & St. L. Ry. Co. (39 N. W. Rep. 153), 65. V. Minnesota Central Ry. Co. (36 Minn. 246), 44. V. Missouri Pac. R. R. Co. (38 Kan. 175), 65, 220. V. Nelson (52 Ohio St. 88), 231. V. New Haven & Northampton R. R. Co. (37 Conn. 153), 65. V. New Haven & Northampton R. R. Co. (43 Conn. 351), 220. V. New Orleans City & L. R. R. Co. (42 La. Ann. 138), 247, 261. V. New Orleans Ry. Co. (49 La. Ann. 1571), 230. V. New Orleans Ry. Co. (116 La. Ann. 144), 269. V. New Orleans Trac. Co. (48 La. Ann. 567), 242. State V. New Orleans & Carrollton R. R. Co. (37 La. Ann. 589), 261. V. New Orleans & L. R. R. Co. (37 La. Ann. 589), 65, 261. V. Newport St. Ry. Co. (16 R. I. 533), 12, 34, 56. V. North (27 Mo. 464), 267. V. Noyes (47 Me. 189), 220. V. Ogden (112 Pac. Rep. 120), 451. V. Parker (33 N. J. L. 312), 267. V. Parker (32 N. J. L. 426), 274. V. Parsons St. Ry. Co. (81 Kan. 430), 88. V. Paterson N. & N. Y. R. R. Co. (43 N. J. L. 505), 261. V. Philadelphia, W. & B. R. R. Co. (47 Md. 76), 301. V. Railroad Co. (9 Rich. Law Rep. 247), 65. V. Republican R. R. Co. (20 Kan. 404), 261. V. Salem Church (114 Ind. 389), 261. V. Sloan (48 S. C. 21), 223, 225. V. Smith (58 Minn. 35), 231. V. Southern Minnesota R. R. Co. (18 Minn. 40), 65. V. Spart., Clifton & Glendale R. R. (51 S. C. 129), 47. V. Spokane St. Ry. Co. (19 Wash. 518), 65. V. St. Charles St. Ry. Co. (44 La. Ann. 562), 259. V. St. Paul City Ry. Co. (31 Minn. 354; 78 Minn. 331), 65, 271. V. St. Paul, Minn. & Manitoba Ry. Co. (35 Minn. 131), 65, 261. V. Trenton (36 N. J. L. 79), 8. V. United Rys. Co. (97 Md. 73), 456. V. Wabash & C. Ry. Co. (83 Mo. 144), 220. V. West Side St. Ry. (146 Mo. 155), 25. V. Whitaker (160 Mo. 69), 231. V. Williams (227 Mo. 32), 432, 435, 439. State, D., L. & W. R. R. Co. v. East Orange (41 N. J. L. 127), 220. State, Orange & Newark Horse Car R. R. Co. V. Douglas (34 N. J, L. 82), 267, 270. State Tax on Foreign-held Bonds (15 Wall. 319), 274. Staten Island Ry. Co., Application of (22 App. Div. (N. Y.) 366), 55. TABLE or CASES. References are to Sections. Staten Island Midland Ry. Co. v. Staten Is. Elec.Ry.Co. (34 App. Div. (N. y.) 181), 28, 110. St. Albans v. Car Company (57 Vt. 81), 274. St. Charles St. R. R. Co. v. Board of Assessors (31 La. Ann. 852), 274. V. Board of Assessors (51 La. Ann. 459), 273. St. Clair St. Ry. Co. v. Badie (43 Ohio St. 91), 362, 385, 393. St. Joseph V. Union Ry. Co. (116 Mo. 636), 256. St. Louis V. Green (70 Mo. 562), 220. V. Missouri R. R. Co. (13 Mo. App. 524), 34, 63. V. Missouri Ry. Co. (87 Mo. 151), 260. V. St. Louis R. R. Co. (50 Mo. 94), 246. V. St. Louis R. R. Co. (89 Mo. 44), 236. V. St. Louis R. R. Co. (12 Mo. App. 591), 222. V. Spiegel (75 Mo. 146), 280. V. Weber (44 Mo. 547), 224. St. Louis Ry. Co. v. Belleville Ry. Co. (158 111. 390), 103. V. Kirkwood (159 Mo. 239), 435. V. North Western St. Louis Ry. Co. (69 Mo. 65), 64. V. Southern Ry. Co. (15 S. W. Rep. 1013), 82, 114. V. Southern Ry. Co. (16 S. W. Rep. 960), 114, 115. V. Southern Ry. Co. (105 Mo. 577), 35. V. South St. Louis R. R. Co. (72 Mo. 67), 64. V. Van Hoorbeke (191 111. 633), 448. St. Louis A. & T. H. R. R. Co. v. Bellville (122 111. 376), 220. St. Louis B. & S. iRy. Co. v. Gray (100 111. App. 538), 9. St. Louis V. & T. H. R. R. Co. v. Bell (81 111. 76), 292. St. Louis & Meramec River R. R. v. Kirkwood (159 Mo. 239), 3, 9, 11, 29. St. Paul V. Smith (27 Min. 364), 220. V. St. Paul & Sioux City R. R. Co. (23 Min. 469), 267, 285. Steele v. Burkhardt (104 Mass. 59), 359. Steets V. New York Elev. R. R. Co. (79 Hun 288), 195. Steiner v. Philadelphia Traction Co. (134 Pa. St. 199), 297, 298. Stelnmetz v. Kelly (72 Ind. 442), 378. Steinmetz v. Metropolitan Elevated Ry. Co. (18 N. Y. Supp. 209), 195. Sternberg V. State (36 Neb. 307), 233. Sternberger v. Manhattan Ry. Co. (16 N. Y. Supp. 539), 203. Sternfels v. Metropolitan St. Ry. Co. (73 App. Div. (N. Y.) 494), 363. Sterry v. New York Elevated R. R. Co. (29 N. E. Rep. 68), 201, 203. Stetson V. Chicago & Evanston R. R. Co. (75 111. 74), 91, 100. Steuer v. Metropolitan Ry. Co. (46 App. Div. (N. Y.) 500), 337. Stevens v. Boston Ry. Co. (184 Mass. 476), 297. V. Brooklyn Heights Ry. Co. (59 App. Div. (N. Y.) 23), 302. V. New York Elevated R. R. Co. (130 N. Y. 95), 186. V. New York Elevated R. R. Co. (57 N. Y. Super. 416), 187, 190, 191. V. Union Ry. Co. (75 App. Div. (N. Y.) 602), 346. Stevenson v. Second Ave. Ry. Co. (35 App. Div. (N. Y.) 474), 36L Stewart v. Brooklyn & Crosstown R. R. Co. (90 N. Y. 588), 372. V. Chicago Gen. St. Ry. Co. (58 111. App. 446), 12, 24, 100. V. Metropolitan Elevated R. R. Co. (56 N. Y. Super. 377), 187. V. St. Paul City Ry. Co. (78 Minn. 85), 33L V. Village of Ashtabula (98 Fed. Rep. 516; 55 Ohio St. 633), 12, 49, 231, 439. Stiles V. Geesey (71 Pa. St. 439), 380. Stillwater v. Lowry (83 Minn. 275), 14. Stillwater Ry. Co. v. Boston & Maine R. R. (72 App. Div. (N. Y.) 294), 110, 115, 468, 474. Stimson v. Milwaukee L. S. & W. Ry. Co. (75 Wis. 381), 358. Stockton V. Atlantic Highlands Ry. Co. (53 N. J. Eq. 418), 12, 24. Stockton Gas & Elec. Co. v. San Joaquin County (148 Cal. 313), 271. Stodgill V. C, B. & Q. R. R. Co. (53 Iowa 341), 102. Stone V. Dry Dock, East Broadway & Battery R. R. Co. (115 N. Y. 104; 23 N. Y. St. Rep. 551; revsg. 46 Hun 184), 385. V. Dry Dock, East Broadway & Battery R. R. Co. (46 Hun 184), 389. TABLE OF CASES. CI Referenr.es are to Sentions, Storck V. Metropolitan Elevated R. R. Co. (14 N. Y. Supp. 311), 195. Storms V. Manhattan Ry. Co. (77 App. Div. (N. Y.) 94), 204. Storrie v. Houston City St. Ry. Co. (92 Tex. 129), 242. Storrs V. Los Angeles Trac. Co. (134 Cal. 91), 409. V. Utica (17 N. Y. 105), 212. Story V. New York Elevated R. R. Co. (90 N. Y. 122), 81, 89, 185, 187, 191, 197. Stratton v. Central City Horse Ry. Co. (95 111. 25), 379. Strauss v. Newburgh Elec. Ry. Co. (6 App. Div. (N. Y.) 264), 393. Street v. Inhabitants of Holyoke (105 Mass. 82), 392. Street R. R. Co. v. Morrow (87 Tenn. 406), 269, 271 272, 273, 274. V. Nashville (M. S.), 274. V. Nolthenius, (40 Ohio St. 376), 381. Street Railway Co. v. Boddy (105 Tenn. 666), 326. V. Carthage (18 Ohio C. C. 219), 40. V. Doyle (88 Tenn. 747), 82, 91. V. West Side St. Ry. Co. (48 Mich. 433), 6, 46, 47, 96, 108, 110. Strickford v. Boston M. R. R. Co. (73 N. H. 81), 30, 91. Stritesky v. Cedar Rapids (98 Iowa 373), 71, 92. Stroub V. Manhattan Elevated Ry. Co. (15 N. Y. Supp. 135), 188. Struthers v. Dunkirk, Warren & Pittsburgh R. R. Co. (87 Pa. St. 282), 78. Strutzel v. St. Paul City R. R. Co. (47 Minn. 543), 305, 306, 310, 387, 391. Stucke V. New Orleans Ry. Co. (50 La. Ann. 172), 413. Stuyvesant v. New York Blev. R. R. Co. (4 App. Div. (N. Y.) 159), 200. Suarez v. Manhattan Ry. Co. (15 N. Y. Supp. 222), 191, 193, 203. Suburban Elec. Co. v. Nugent (58 N. J. L. 658), 292. Suburban Light Co. v. Boston (26 N. E. Rep. 447), 60. Suburban Ry. Co. v. Brauss (70 Ga. 368), 375. V. Metropolitan W. Side Ry. Co. (193 III. 217), 103, 105. Suburban Rapid Transit Co. v. Mayor (128 N. Y. 510), 34, 39, 162. Sugarman v. Manhattan Elevated Ry. Co. (16 N. Y. Supp. 533), 211. Sullenberger v. Chester Trac. Co. (33 Pa. Super. Ct. 12), 386. Sullivan v. Brooklyn Heights Ry. Co. (117 App. Div. (N. Y.) 784), 462. V. Jefferson Ave. Ry. Co. (133 Mo. 1), 327. v. Metropolitan St. Ry. Co. (53 App. Div. (N. Y.) 89), 415. V. North Hudson County R. R. Co. (51 N. J. L. 518), 183. V. Staten Island Ry. Co. (50 App. Div. (N. Y.) 558), 291. Summers v. Crescent City R. R. Co. (34 La. Ann. 139), 344. Sun Pub. Assn. v. Mayor, (152 N. Y. 256), 2. Suse V. Metropolitan St. Ry. Co. (80 App. Div. (N. Y.) 24), 360. Sutherland v. New York Central R. R. Co. (41 N. Y. Super. 17), 301. Sutter v. Omnibus Cable Co. (107 Cal. 369), 322. Sutton V. Town of Wauwatosa (29 Wis. 21), 366. Suydam v. Grand St. & Newtown R. R. R. Co. (41 Barb. 375), 323. V. New York Elevated R. R. Co. (19 N. Y. Supp. 49), 208. Swain v. Fourteenth St. R. R. Co. (28 Pac. Rep. 829), 316. Swanson v. Chicago City Ry. Co. (242 111. 388), 380. Sweeney v. Kansas City Ry. Co. (150 Mo. 385), 341. V. Scranton Trac. Co. (5 I^acka. (Pa.) 86), 311. Sweet V. Birmingham Ry. Co. (136 Ala. 166), 345. V. Louisville Ry. Co. (90 Me. 1991, 326. Sweetland v. Lynn Ry. Co. (177 Mass. 574), 338. Swift V. New York Ry. Co. (120 N. Y. Supp. 203), 380. V. Staten Island Rapid Transit R. R. Co. (123 N. Y. 645), 378, 385. Swinhart v. St. Louis Ry. Co. (207 Mo. 423), 100, 435, 445. Swisher v. Williams (Wright, Ohio 754), 366. Syracuse Ry. Co., Petition of (68 N. Y. Supp. 881), 433, 434, 435. Cll TABLE OF CASES. Beferences are to Sections. Taber v. New York Elevated R. R. Co. (58 N. Y. Super. 579), 20.6. Taggart v. Newport St. Ry. Co. (16 R. I. 668), 67, 69, 83, 127. Talcott V. Pine Grove (1 Flipp. 145) , 65. Tallman v. Metropolitan Elevated Ry. Co. (121 N. Y. 119), 99, 189, 190, 206, 209. Tamaqua & Lansford St. Ry. Co. v. Inter-County St. Ry. Co. (167 Pa. St. 91), 28, 435. Tangner v. Southwest Mo. Elec. Ry. Co. (85 Mo. App. 28), 372. Tarbell v. Central Pacific Ry. Co. (34 Cal. 616), 364. Tashjlan v. Worcester Ry. Co. (177 Mass. 75), 316. Tatarewlcz v. United Trac. Co. (220 Pa. St. 560), 310. Tate V. Missouri, Kansas & Texas Ry. Co. (64 Mo. 149), 78. Tatum V. Sharpless (6 Phila. 18), 376. Taylor v. Bay City St. Ry. Co. (80 Mich. 77), 35, 100, 101. V. Bay City St. Ry. Co. (101 Mich. 140), 107. V. Carew Manufacturing Co. (143 Mass. 470), 381. V. Erie City Pass. Ry. Co. (37 Pa. Super. Ct. 292), 22. V. Kansas City Cable Ry. Co. (38 Mo. App. 668), 92. V. Metropolitan Elevated Ry. Co. (55 N. Y. Super. 555), 190. V. Metropolitan Elevated Ry. Co. (50 N. Y. Super. 311), 185. V. Metropolitan Elevated Ry. Co. (52 N. Y. Super. 299), 190. V. Portsmouth, K. & Y. St. Ry. (91 Me. 193), 77, 100. Temple v. McComb City El. L. & P. Co. (89 Miss. 1), 292. Tennessee v. Whitworth (117 XJ. S. 129), 274. Tennis v. Inter-State Consolidated Rapid Transit Ry. Co. (45 Kan. 503), 399. Terre Haute & Indianapolis R. R. Co. V. Graham (95 Ind. 286), 379. Terre Haute & South Eastern R. R. Co. V. Rodel (89 Ind. 128), 99. Terre Haute Ry. Co. v. Lauer (21 Ind. App. 466), 339. V. Roberts (90 N. B. Rep. 335), 380. Terre Haute Ry. Co. v. Tappenback (9 Ind. App. 422), 385. Tesch V. Milwaukee Ry. Co. (108 Wis. 593), 303. Texas & Pacific Ry. Co. v. Murphy (46 Tex. 356), 381. v. Rosedale St. R. R. Co. (64 Tex. 80), 82. Thane v. Scranton Trac. Co. (8 Pa. Sluper. Ct. 446), 338, 339. The Civil Rights Bill (1 Hughes 541), 325. Theberath v. Newark (57 N. J. L. 309), 28, 56, 61. Theobold v. Louisville, New Orleans & Texas Pacific Ry. Co. (66 Miss. 279), 78, 185. The Sue (22 Fed. Rep. 843), 325. Third Ave. R. R. Co. v. New York Elevated R. R. Co. (19 Abb. N. C. 261). 189. Thirteenth & Fifteenth Sts. Pass. Ry. Co. V. Union Pass. Ry. Co. (15 Phila. 275), 110; V. Philadelphia & Bsterbrook Ry. Co. (13 W. N. C. 487), 257, 266. V. Boudrou (92 Pa. St. 475), 339, 378. Thomas v. Altoona Ry. Co. (191 Pa. St. 361), 394. V. Citizens' Horse Ry. Co. (104 111. 462), 423. V. Citizens' Pass. Ry. Co. (132 Pa. St. 504), 305, 317, 323. V. Consol. Trac. Co. (62 N. J. L. 36), 290. V. Philadelphia & Reading R. R. Co. (23 Atl. Rep. 989), 361. V. Railroad Co. (101 U. S. 71), 424. Thomas & Houston Electric Co. v. Simon (25 Pac. Rep. 147), 103. Thompson v. Citizens' Trac. Co. (181 pa. St. 131), 91, 107, 440. V. Citizens' St. Ry. Co. (152 Ind. 461), 412. V. Duncan (76 Ala. 334), 381. V. Gardiner Ry. Co. (193 Mass. 133), 463. V. Lowell St. Ry. Co. (170 Mass. 577), 394. V. Manhattan Ry. Co. (130 N. Y. 360), 202. V. Manhattan Ry. Co. (15 Daly 438), 202. V. Manhattan Ry. Co. (29 N. Y. St. Rep. 720), 187. V. Manhattan Ry. Co. (8 N. Y. Supp. 641), 209. TABLE OF CASES. cm Beferences are to Sections. Thompson v. New Orleans & Car- roUton R. R. Co. (10 La. Ann. 403), 425. T. New York Elev. Ry. Co. (16 Ap. DIv. (N. Y.) 449), 192. V. Salt Lake Co. (16 Utah 281), 332. V. St. Paul City Ry. Co. (45 Minn. 13), 427. V. Supervisors (111 Cal. 553), 432. Thompson Blec. Co. v. Simon (20 Ore. 60), 446. Thompson-Houston Electric Co. v. Simon (20 Ore. 60), 1. Thornhill v. City of Cincinnati (4 Ohio C. C. 354), 225. Thoreson v. La Crosse City Ry. Co. (87 Wis. 597), 304. Thornton v. Marginal Freight Ry. Co. (123 Mass. 32), 119. Thorogood v. Bryan (8 C. B. 115), 393. Thorp v. Rutland & Burlington R. R. Co. (27 Vt. 150), 220. Thouran v. Schuylkill Elec. Ry. Co. (174 Pa. St. 306), 100. Thrings v. Central Park R. R. Co. (7 Robt. 616), 336, 409. Thurber v. Harlem Bridge, Mor- rlsania & Fordham R. R. Co. (60 N. Y. 326), 385. Thurston v. Huston (123 Iowa 157), 63, 108. Tibbetts v. West & South Towns St. Ry. Co. (54 111. App. 180; 153 III. 147), 18, 20, 24, 102. Tletsam v. Hay (122' 111. 293), 422. Tiffany v. United States Illumi- nating Co. (51 N. Y. Super. 280), 128. Tilden v. Rhode Island Ry. Co. (27 R. L 482), 463. Tlmms V. Old Colony St. Ry. Co. (183 Mass. 193), 350. Timpson v. Manhattan Ry. Co. (52 Hun 489), 214. Tinsley v. Toronto Ry. Co. (17 On- tario L. Rep. 74), 311. Tishacek v. Milwaukee Ry. Co. (110 Wis. 417), 310. Toledo V. Toledo Co. (25 Ohio C. C. 441), 48, 51. Toledo Consolidated St. Ry. Co. v. Electric St. Ry. Co. (6 Ohio C. C. 362), 115, 116. Toledo St. Ry. Co. v. Bateman (16 Ohio C. C. 162), 383. V. Lima & Toledo Ry. Co. (79 Ohio St. 136), 114. Toledo St. Ry. Co. v. Luterbach (11 Ohio C. C. 279), 315, 346. V, Mammet (13 Ohio C. C. 591), 413. V. Pfisterer (5 Ohio C. C. 359), 411. V. Sweeney (8 Ohio C. C. 298), 413. V. Toledo Elec. St. Ry. Co. (50 Ohio St. 603), 110, 114, 116, 117. V. Toledo Consolidated St. Ry. Co. (26 W. L. B. 172), 117. V. Western Light Co. (10 Ohio C. C. 531), 121. Toledo, P. & W. Ry. Co. v. Chenoa (43 111. 209), 220. Toledo, St. Louis & K. C. R. R. Co. V. Cline (135 111. 41), 379. Toledo Valley Ry. Co. v. Toledo Trac. Co. (15 Ohio C. C. 190), 110. Toledo, W. & W. Ry. Co. v. McDon- ough (53 Ind. 289), 237. V. Harmon (47 111. 298), 298. V. Jacksonville (67 111. 37), 220, 224. Tolman v. Syracuse, Binghamton & N. Y. R. R. Co. (98 N. Y. 198), 381. Tomlin v. Cedar Rapids Ry. Co. (141 la. 599), 7, 91, 441. Tomlinson v. Wilmington & Sea Coast R. R. Co. (107 N. Car. 327), 410. Tomkins v. Boston Elev. Ry. Co. (201 Mass. 114), 338. V. Clay St. Ry. Co. (66 Cal 163), 361, 362, 363, 393, 406. Topeka City Ry. Co. v. Higgs (38 Kan. 375), 327, 328, 341, 355. Topp V. United Ry. Co. (99 Md. 630), 463. Toronto v. Toronto St. Ry. Co. (10 Ont. L. Rep. 730), 231. V. Toronto St. Ry. Co. (15 Ont. App. 30), 225. Toronto St. Ry. Co. v. Dollery (12 Ont. App. 679), 303. V. Fleming (37 Up. Can. Q. B. 116), 271. V. Mulvaney (38 Can. S. C. R. 337), 297. Tower v. Tower & Soudan St. Ry. (68 Minn. 500), 49. Townsend v. Circleville (78 Ohio St. 122), 229, 451. V. New York Central & H. R. R. Co. (56 N. Y. 295), 237. V. Norfolk Ry. & L. Co. (100 Va. 22), 132. CIV TABLE 01" CASES. References are to Sections. Township v. Detroit L.. & St. Ry. Co. (130 Mich. 363), 65. Traction Co. v. Sterling (29 Ohio C. C. 227), 42. Tracy v. Troy & Lansingburg R. R. Co. (54 Hun 550), 100. Transportation Co. v. Chicago (99 V. S. 635), 11, 76. V. Downer (11 Wall. 129), 361. Treanor v. Manhattan Ry. Co. (IG N. Y. Supp. 536), 211. Trelfold v. Coney Is. R. R. (5 App. Div. (N. Y.) 465), 12, 44. V. Coney Is. R. R. Co. (6 App. Div. (N. Y.) 204), 28, 51, 67. Trenton v. Trenton Horse R. R. Co. (19 Atl. Rep. 263), 31, 60. V. Trenton St. Ry. Co. (72 N. .1. L. 317), 242, 244, 257. Trenton Horse Ry. Co. v. Trenton (53 N. J. L. 132), 34, 222, 224, 225. Trenton Pass. Ry. Co. v. Cooper (60 N. J. L. 219), 133, 292. Trenton St. Ry. Co. v. Penna. R. R. (63 N. J. Eq. 276), 63. V. United N. J. Ry. Co. (60 N. J. Eq. 500), 109. Tri-City Ry. Co. v. Banker (100 111. App. 6), 300. V. Brennan (108 111. App. 471), 399. Trotier v. St. Louis Suburban Ry. Co. (180 111. 471), 446, 449. Trousclair v. Pacific Coast Steam- ship Co. (80 Cal. 521), 378. Trust Co. V. L. L. & G. R. R. Co. (17 Am. Law Reg. 268), 65. Troy V. Cheshire R. R. Co. (23 N H. 83), 3, 102. Troy & Boston R. R. Co. v. Lee (13 Barb. 169), 173, 195. Troy & Lansingburgh R. R. Co. (Before R. R. Com'rs.), 135 p 251. v. Kane (9 Hun 506), 210, 271, 278. True V. Niagara Gorge Ry. Co. (70 App. Div. (N. Y.) 383), 415. Trumbo v. City Street Car Co. (89 Va. 780), 385. Trust Company of Georgia v. Georgia (109 Ga. 736). 429. Tucker v. Buffalo Ry. Co. (53 App Div. (N. Y.) 571), 344. V. New York Central & Hudson River R. R. Co. (124 N. Y. 308), 385. Tudor V. Chicago Ry. Co. (154 111 129), 105, 163. Tunison v. Weadock (130 Mich 141), 316. Tunnicliffe v. Bay Cities' Consol. Ry. Co. (102 Mich. 624), 409. Tuebner v. California St. Ry. Co. (66 Cal. 171), 80, 84, 91. Turner v. Hitchcock (20 Iowa 310), 406. V. North Beach & Mission R. R. Co. (34 Cal. 594), 325. Turnpike Co. v. United Rys. & Blec. Co. (93 Md. 138), 9, 445. Twomley v. Central Park, North & East River R. R. Co. (69 N. Y. 158), 383. u Uline V. New York Central & Hud- son River R. R. Co. (101 N. Y. 98), 99, 206. Ulrieh v. Toledo Consol. St. Ry. Co. (10 Ohio C. C. 635), 359. Underground R. R. of N. Y. v. New York (116 Fed. Rep. 952), 6, 28. Underbill v. Manhattan Ry. Co. (18 N. Y. Supp. 43), 205. Underwood v. Worcester (177 Mass. 173), 92. Unger v. Forty-Second St. & Grand St. Ferry R. R. Co. (51 N. Y. 497), 296, 309. Union Bank v. State (9 Yerg. 490), 274. Union Depot R. R. Co. v. Southern Ry. Co. (105 Mo. 562), 35, 114, 115. V. Southern Ry. Co. (15 S. W. Rep. 1023), 82. Union Loan & Trust Co. v. South- ern California Trust Co. (49 Fed Rep. 267), 242, 427. Union Pass. Ry. Co. v. Continental Ry. Co. (11 Phila. 321), 113, 114. ' V. Philadelphia (101 U. S. 528), 280, 282, 283. V. Philadelphia (83 Pa. St. 429), 281, 283. Union Pacific R. R. Co. v. Hall (91 U. S. 343), 65. Union Railway Co. v. Mayor (11 Allen 287), 230. Union St. Ry. Co. v. Hazelton Ry. Co. (154 Pa. St. 422), 122. V. Stone (54 Kan. 83), 292. Union Trac. Co. v. Buckland (34 Ind. App. 420), 415. V. Chicago (199 111. 484), 233. V. Pfeil (39 Ind. App. 51), 447. V. Slceloff (34 Ind. App. 511), 337. V. Vandercook (32 Ind. App. 621), 315. TABLE OP CASES. CV Keferences are to Sections. United Electric Ry. Co. v. Shelton (89Tenn. 423), 133, 292. United Power Co. v. Mathony (81 Ohio St. 204), 410. United Rys. Co. v. Beidelman (95 Md. 480), 348. V. Beidler (98 Md. 564), 393. T. Deane (93 Md. 619), 374. V. Fletcher (95 Md. 533), 314. V. Hardesty (94 Md. 661), 237. V. Hayes (92 Md. 490), 60. V. Hertel (97 Md. 382), 349. V. Mayor of Baltimore (93 Md. 630), 269. V. Watkins (102 Md. 264), 303. V. Woodridge (97 Md. 629), 349. United States v. Murphy (44 Fed. Rep. 39), 427. United States Illuminating Co. v. Grant (27 N. Y. St. Rep. 767), 131. V. Hess (19 N. Y. St. Rep. 883), 131. United Trac. Co. v. Watervliet (71 N. Y. Supp. 977), 229. Upham V. Detroit City Ry. Co. (85 Mich. 12), 338, 340. Uransky v. Dry Dock, East Broad- way & Battery R. R. Co. (44 Hun 119), 397. Valentine v. Broadway & Seventh Aye. R. R. Co. (4 N. Y. Supp. 481), 336. V. Middlesex R. R. Co. (137 Mass. 28), 331. Valley Forge Park Com. v. Phoenix- ville & Bridgeport Elec. Ry. Co. (27 Pa. Co. Ct. Rep. 109), 7. Van Bokelen v. Brooklyn City Ry. Co. (5 Blatch 379), 82. Van Brunt v. Flatbush (128 N. Y. 50), 441. Van De Venter v. Chicago City Ry. Co. (26 Fed. Rep. 32), 328, 348, 409. Van Dyke v. Atlantic Ave. Ry. Co. (67 Fed. Rep. 296), 413. Van Hook v. City of Selma (70 Ala. 361), 224. Van Home v. Newark Pass. Ry. Co. (48 N. J. Eq. 332), 11, 82, 100. Vanneman v. Young (52 N. J. L. 403). 10. Van Schaik v. Third Ave. R. R. Co. (30 Barb. 189), 426. Van Winkle v. Brooklyn City R. R. Co. (46 Hun 564), 329, 358. Van Wyck v. Knevals (106 U. S. 360), 50, 184. Varillat v. New Orleans & Carroll- ton R. R. Co. (10 La. Ann. 8S), 410. Vassau v. Madison Elec. Ry. Co. (106 Wis. 301), 372, 410. Veazie v. Mayor (45 Me. 560), 220. Venuta v. New York, W. & C. Trac. Co. (87 App. Div. (N. Y.) 561), 393. Verrone v. Rhode Island Ry. Co. (27 R. I. 370), 467. Vicksburg, City of, v. Hennessy (54 Miss. 391), 381. Vicksburg Ry, Co. v. Marlett (78 Miss. 872), 237. V. Miles (88 Miss. 204), 292. Vicksburgh & M. R. R. Co. v. O'Brien (119 U. S. 99), 399. Viemeister v. Brooklyn Heights Ry. Co. (91 App. Div. (N. Y.) 510), 216. Vigeant v. Marlborough (175 Mass. 459), 92. Vincent v. Norton Ry. Co. (180 Mass. 104), 316. Vinton v. Middlesex R. R. Co. (11 Allen 304), 366, 370. Vizacchero v. Rhode Island Co. (26 R. I. 392), 469. Volkmar v. Manhattan Ry. Co. (9 N. Y. Supp. 708), 211. Vose V. Newport St. Ry. Co. (20 Atl. Rep. 267), 107. Vulcanite Paving Co. v. Philadel- phia Trac. Co. (115 Pa. St. 280), 258. w Wabash Ry. Co. v. Defiance (167 U. S. 88), 13. Wabash River Trac. Co. v. Baker (167 Ind. 262), 464. Wabash, St. Louis & Pacific R. R. Co. V. Wallace (110 111. 114) , 379. Waddel v. Metropolitan Ry. Co. (113 Mo. App. 680), 458. Wade V. City & Suburban Ry. Co. (36 Ore. 311), 359. V. Columbia Elec. Ry. Co. (51 S. C. 296), 383. V. Detroit Ry. Co. (151 Mich. 684), 457, 458. Wadsworth v. Boston Elev. Ry. Co. (182 Mass. 572), 211. Wagner v. City of Portland (40 Ore. 389), 415. = Greenwood v. Freight Co., 105 Tennessee, 95 U. S. 679, (1877); U. S. 13, (1881). § 6. J EIGHT TO COWSTEUCT EXTEXT HOW ACQUIEED. 9 the company's charter rights, for the purpose of revenue merely, is unlawful;^* that additional burdens ¥/ith respect to the pave- ment and repair of streets cannot be imposed by statute or ordi- nance;^^ that the mode of taxation provided for in the charter of a private corporation cannot be violated ;^^ that an agreement entered into, under statiitory authority, for the commutation of taxes, may be enforced against a municipality;^^ that where the company is permitted, by ordinance, to use a T rail it cannot be compelled by the municipal a\ithorities to substitute a different kind.-'^ So where a city, acting upon the erroneous theory that a grant, although accepted and acted upon, is a mere license, which may be withdrawn at any time, threatens permanently to prevent the passage of cars, it may be enjoined.^® Relief has been granted for many other violations of charter rights.^** § 6. The franchise — its source and legal character — charter, franchise and license distinguished. — A charter is the instrument or evidence of a public grant ; a franchise is the thing granted. A franchise obtained by grant from the legislature has the legal character of an estate or property.-^ It is a privilege conferred by sovereignty upon natural or artificial persons to exercise powers which they could not lawfully assume except in pursuance of such a grant. It emanates from the sovereign power of the "Mayor v. Second Ave. R. R. Co., '* Easton & West End Pass. Ry. 32 N. Y. 261, (1865). Co. v. Easton, 133 Pa. St. 505, '^ Coast Line R. R. Co. v. Savan- (1S90). nah, 30 Fed. Rep. 646, (1887); "Springfield Ry. Co. v. Spring- State ex rel. v. Corrigan Consoli- field, 58 Mo. 674, (1885); Asheville dated St. Ry. Co., 85 Mo. 263, St. Ry. Co. v. Asheville, 109 N. C. (1884); Western Paving & Supply 688, 14 S. E. Rep. 316, (1892). Co. V. Citizens' St. Ry. Co., 128 Ind. ™ Brooklyn Central R. R. Co. v. 525, 28 N. E. Rep. 88, (1890) ; Leake Brooklyn City R. R. Co., 32 Barb. V. Philadelphia, 150 Pa. St. 643, 358, (1890); Wyandot v. Corrigan, (1892). Compare Sioux City St. 35 Kan. 21, (1886) ; Elliott on Roads Ry. Co. V. Sioux City, 78 Iowa 367, and Streets (2d Ed.), Sec. 778; (1889) ; Sioux City St. Ry. Co. v. Mayor v. Second Ave. R. R. Co., 32 Sioux City, 138 U. S. 98, (1891). N. Y. 201, (1865). "Douglass, Receiver, v. State, "Oakland R. R. Co. v. Brooklyn Orange & Newark Horse Car R. R. & Fruit Vale R. R. Co., 45 Cal. 365, Co., 32 N. J. L. 485, (1869). (1873); Linden Land Co. v. Milwau- " Detroit v. Detroit City Ry. Co., kee Elec. Ry. Co., 107 Wis. 493, 76 Mich. 421, (1889). (1900); Underground R. R. of New 10 THE LAW OF STEEET BAIL WAYS. [§6. state, and owes its existence to a grant, or, as at common law, to prescription which presupposes a grant, and may be vested either in an individual or body politic.''^ The interest which a railroad company has in a street or avenue through which its track is laid is a right of way. Its franchise consists in its right to lay and use exclusively a railroad, subject to the duty of running public cars thereon."* As a franchise is invested with the character of property it is transferable as such independently of the life of the original corporation, and the extension of the life of a fran- chise beyond the life of the corporation does not render it void."* While the power to grant a franchise is vested solely in the legis- lature, it may delegate the power to local authorities,"^ but cannot confer it upon, the courts, as the granting of a franchise is purely a legislative and not a judicial function."* Where a company was incorporated by the legislature, which conferred upon it specific power to construct, maintain and Qperate a railway in a city, sub- ject, however, to the consent of the city, and in such manner and upon such conditions as the city might impose, and the latter, by ordinance, granted the privilege of constructing and operating the same upon a certain street, the grant by the municipality was held to be a mere license, and not a franchise."^ Until the consent of York V. New York, 116 Fed. Rep. ville & N. Ry. Co. v. Mobile J. & 952, 956, (1902). K. C. Ry. Co., 124 Ala. 162, 26 So. *! Citizens St. Ry. Co. v. City Ry. Rep. 895, (1899); Citizens St. Ry. Co., 64 Fed. Rep. 647, (1894) ; Lin- Co. v. Detroit Ry. Co., 171 U. S. 48, coin St. Ry. Co. v. Lincoln, 61 Neb. (1897) ; Beekman v. Third Ave. Ry., 109, (1901); Hamtramck v. Rapid 13 App. Div. (N. Y.) 279, (1897); Ry. Co., 122 Mich. 472, 81 N. W. Heerwagen v. Crosstown St. Ry. Rep. 337, (1899). Co., 90 App. Div. (N. Y.) 277, (1904). =^New York & Harlem R. R. Co. =«Norwalk St. Ry. Co.'s Appeal, V. Forty-second Street & Grand 69 Conn. 576, (1897); Benwood v. Street Ferry R. R. Co., 50 Barb. Wheeling Ry. Co., 53 W. Va. 469, 285, (1864). (1903). "Detroit v. Detroit Citizens Ry. "A company was incorporated Co., 184 U. S. 368, (1902), affirming under an act of the general assem- 64 Fed. Rep. 628, reversing 56 Fed. bly of Illinois, which authorized and Rep. 867; s. c. 110 Mich. 384; 60 empowered the Incorporators to Fed. 161; People v. O'Brien, 111 construct and maintain a single or N. Y. 1, (1888); Linden Land Co. double track railroad, "in such v. Milwaukee Ry. Co., 107 Wis. manner and upon such terms and 493, (1900). conditions, and with such rights »» Mobile V. Louisville & N. Ry. and privileges, as the common Co., 84 Ala. 115, 120, (1887); Louis- council may by contract with said § 6.J EIGHT TO CONSTEUCT EXTENT HOW ACQUIEED. 11 the local authorities has been obtained, the act of incorporation is a bare grant, and confers a mere existence without other force or effect. A franchise granted by a municipal corporation, upon valuable consideration, by an ordinance in the nature of a grant, if legal, is within the protection of constitutional provisions against laws impairing the obligation of contracts, and can neither be taken away by the repeal of the ordinance nor impaired by a subsequent grant of such franchise to another.^® A franchise, whether for a railway, ferry, bridge or turnpike, is not in its nature exclusive, and, therefore, does not preclude the state from creating another similar franchise which may materially impair the value of the first.^° The interest a street railway company may have in certain streets, created by a contract with the city which prohibits their use by any other company, is no part of the parties or any or either of them prescribe." Referring to the pow- ers derived by the incorporators from the state and from the city, the supreme court in Chicago City Ry. Co. v. People, 73 111. 541, 548, (1874), said: "It is a misconcep- tion of the law to suppose the rail- way company derives Its power to construct a railroad from any ordi- nance of the city. All its authority is from the state, and is conferred by its charter. The city has dele- gated to it the power to say in what manner and upon what conditions the company may exercise the fran- chises conferred by the state, but nothing more." Sioux City St. Ry. Co. v. Sioux City, 138 U. S. 98, 107, (1891); Chicago & S. S. R. T. Ry. Co. V. Northern T. Co., 90 111. App. 460, 483, (1899); Lincoln St. Ry. Co. V. Lincoln, 61 Neb. 109, 129, (1901) ; Morgan v. Louisiana, 93 U. S. 217, 223, (1876). But see Potwin Place V. Topeka Ry. Co., 51 Kan. 609, 614, (1893). "Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26, 32 S. E. Rep. 775, 15 Am. & Eng. R. Cas. (N. S.) 206, (1899) ; Potwin Place v. Topeka Ry. Co., 51 Kan. 609, (1893) ; Brown v. Atlanta Ry. Co., 113 Ga. 462, 39 S. B. Rep. 71, 73, (1901). =» Birmingham & Pratt-Mines St. Ry. Co. V. Birmingham St. Ry. Co., 79 Ala. 465, (1885) ; Mayor v. Hous- ton City Ry. Co., 83 Tex. 548, (1892). See also cases cited under sec. 5, ante. ™In re Citizens' Pass. Ry. Co., 2 Pittsb. 10, (1859) ; Street Ry. Co. v. West Side St. Ry. Co., 48 Mich. 433, (1882); Henderson v. Ogden City Ry. Co., 7 Utah 199, 26 Pac. Rep. 286, (1891); Canal & Claiborne St. R. R. Co. V. Crescent City R. R. Co., 41 La. An. 561, (1889); Chris- topher & Tenth St. R. R. Co. v. Central Crosstown R. R. Co., 67 Barb. 315, (1875); Des Moines St. R. R. Co. V. Des Moines Broad Gauge St. R. R. Co., 73 Iowa 513, (1887); Louisville & Portland R. R. Co. V. Louisville City R. R. Co., 2 Duval (Ky.) 175, (1865); Baltimore Pass. Ry. Co. v. North Ave. R. R. Co., 75 Md. 233, 23 Atl. Rep. 466, (1892) ; Hydes Ferry Turnpike Co. V. Davidson County, 91 Tenn. 291, 18 S. W. Rep. 626, (1892) ; Mayor v. Houston City Ry. Co., 83 Tex. 548, 12 , THE LAW OP STREET RAILWAYS. [§ < • company's franchise, but is in the nature of property, and is an incorporeal right, as a franchise can emanate from the sovereign power of the state alone.^^ A license or permission to occupy a street is not "a special privilege or immunity," vsdthin the mean- ing of constitutional inhibitions.*^ The grant of a franchise is in derogation of public right and any doubts as to the existence or construction of the power will be resolved against the corporation and in favor of the public.** § 7. What property subject to a street railway franchise This subject fully considered would involve a discussion of ques- tions, some of which will be treated in subsequent chapters. It will be suiEcient for present purposes, and in this connection, to state that, with the consent of the state or municipal authorities, public highways may be occupied for the construction and main- tenance of ordinary street railways without compensation to the owners of abutting property, on the theory, now firmly imbedded in the law, that such use is not a new or additional servitude. Such has been the decision wherever the question has arisen except in some of the earlier cases in ISTew York.** A franchise cannot be granted by a municipality to construct and operate over private property.*^ In some states no power has been conferred to exer- cise the right of eminent domain for the acquisition of such ease- ments over private property ; while in others fuU statiitory power for this purpose has been expressly granted. But in the latter there is a conflict of opinion as to whether or not one company (1892) ; Underground R. R. of N. Y. rell v. Winchester Avenue Ry. Co., v. New York, 116 Fed. Rep. 952, 61 Conn. 127, 130, (1891) ; Govin v. (1902). Chicago, 132 Fed. Rep. 848, (1906). =1 Metropolitan St. Ry. Co. v. Chi- ^ See Chap. IV. cago West Division Ry. Co., 87 111. ™ See Chaps. IV and XVI. In Tom- 317, (1877). lln v. Cedar Rapids Ry. Co., 141 la. »' Atchison St. Ry. Co. v. Missouri 599, 120 N. W. Rep; 93, (1909), where Pacific R. R. Co., 31 Kan. 660, the city by ordinance vacated a por- (1884)- tion of a street which it granted to == Birmingham & P. M. Ry. Co. v. the state subject to the right to use Birmingham Ry. Co., 79 Ala. 465, the part vacated for the purpose of 471, (1885) ; Brooklyn & R. B. Ry. constructing and operating a street Co. v. Long Island Ry. Co., 72 App. railway, it was held that the railway Div. (N. Y.) 496, (1902) ; Dieter v. company had the right to construct Estill, 95 Ga. 370, 372, (1894) ; Far- and operate Its road without the §7.] EIGHT TO CONSTRUCT EXTENT HOW ACQUIKED. 13 may appropriate the use of the right of way and tracks previously acquired and constructed by another, a majority of the courts holding that such property may be taken.^" Public parks and squares, duly dedicated to the public use, for purposes of adorn- ment, recreation and health, are not subject to the right of way for such common carriers. Where the title to a public square is vested in a municipal corporation, the cestuis que use acquire a vested estate in it; hence, neither the municipality nor the leg- islature can divert it to a railroad or other like use.^'' The state franchise necessary in case of the use of streets. » See Chaps. IV, V. "A company was authorized hy the legislature of Illinois to con- struct and operate a street railway, in, over, across and along any and all the avenues, streets, public grounds, squares and alleys of the city. Under this grant the company claimed a right to construct and operate its road across a public square which had been dedicated by plat to the city. It appeared that city lots around the square had been sold with reference to it, and had been improved, the value of which was enhanced on account of the square, which had been adorned and beautified by the city. The municipal authorities filed a bill in chancery to prevent the company from appropriating any part of the park for the con- struction of its road. The review- ing court, reversing the decree be- low, held that the company should be perpetually enjoined. Jackson- ville V. Jacksonville R. R. Co., 67 111. 540, (1873). See also Pratt v. Buffalo City Ry. Co., 19 Hun 30, (1879) ; In re New York & Brighton Beach R. R. Co., 20 Hun 201, (1880) ; Greene v. N. Y. Cent. & Hudson River R. R. Co., 65 How. Pr. 154, (1883), the last case holding that the owner of a lot merely cornering on a public park is not entitled to an injunction. In New Orleans a railroad company, under color of legislative grant, sought to occupy certain public squares, "which had been vested in perpetuity and full ownership" In the municipal cor- poration. This was enjoined, the appellate court saying: "If then a municipal corporation can acquire the fee simple of property, the squares intended for the depots of the plaintiff were so acquired, and they cannot be taken by the legis- lature while the corporation ex- ists." New Orleans, Mobile & Chat- tanooga R, R. Co. V. New Orleans, 26 La. Ann. 478, (1874). In Coney Is. Ry. Co. V. Kennedy, 15 App. Div. (N. Y.) 588, (1897), It was decided that the franchise to construct a railway in the street cannot be de- stroyed by subsequent action of commissioners under legislative au- thority, changing the street into a parkway. But see People v. Park & Ocean R. R. Co., 76 Cal, 156, (1868), in which it was held that a public park may be crossed by a street railway when suQh use will not materially interfere with its use and enjoyment by the public. In Valley Forge Park Com. v. Phcenix- ville & Bridgeport Elec. Ry. Co., 27 Pa. Co. Ct. Rep. 109, (1902), it was decided that the park commission could not enjoin an electric rail- 14 THE LAW OF STREET RAILWAYS. [§8. may bind itself by limitations contained in a statute and accepted and acted upon by private owners, by a condition that a public street, avenue or boulevard stall never be subject to a street rail- way- francMse, even in pursuance of a subsequent act, without compensation to abutting owners. This is construed as a limita- tion on the extent and character of the public use created at the time of the dedication or subsequent improvement.^* § 8. The franchise can be granted only for a public use, or upon public considerations — The power granted to municipal cor- porations to regulate the use of their streets extends to public uses only, and does not authorize an ordinance permitting a private corporation to build a railroad track and run trains on and across the streets of the city for the transaction of its private business; nor can corporations or natural persons lawfully operate cars for the transportation of freight, in furtherance of their private busi- ness, over street railway tracks, even if the proprietor of the rail- way continue to use the tracks as a street railway for the carriage of passengers for hire.** way company from constructing its line on a public highway running through a park. See also Gettys- burg Battlefield Elec. Ry. Case, 13 Pa. Co. Ct Rep. 337, (1893); Chi- cago City Ry. Co. v. Montgomery Ward & Co., 76 111. App. 536, 544, (1898). In the case of Philada. v. McManes, 175 Pa. St. 28, (1896), it was held that the commissioners of Fairmount Park have the power to grant a franchise to construct a passenger railway in the park. In Mathers v. Kerper, 3 W. L. B. 551, (1878), the court sustained the action of the city council in grant- ing a right of way through a public park in consideration of an agreed rental. As germane to this ques- tion, see City of Cincinnati v. Les- see of White, 6 Peters 431, (1832) ; Watertown v. Cowan, 4 Paige Ch. 510, (1834); Le Clercq v. Gallipolis, 7 Ohio 218, (1835); Carter v. Chi- cago, 57 111. 283, (1870).- As to crossing streams and constructing bridges, see Attorney-General v. Chicago & Evanston R. R. Co., 112 111. 611, (1884). As to the right of way over roads not lawfully estab- lished and opened, see Cincinnati Southern R. R. Co. v. Chattanooga Electric St. R. R. Co., 44 Fed. Rep. 470, (1890). ^ In re Southern Boulevard R. R. Co., 12 N. Y. Supp. 466, (1890). Compare Harlem Bridge, Morris- ania & Fordham R. R. Co. v. South- ern Boulevard R. R. Co., 41 Hun 553, (1886); Attorney-General v. Broad St. Ry. Co., 16 Pa. Dist. Rep. 142, (1907). "" Glaessner v. Anheuser-Busch Brewing Association, 100 Mo. 508, (1890) ; Fanning v. Osborne, 102 N. Y. 441, (1886) ; Mikesell v. Durkee, 34 Kan. 509, (1886); Heath v. Des Moines & St. Louis Ry. Co., 61 § 9. J EIGHT TO CONSTRUCT EXTENT- -HOW ACQUIEED. 15 § 9. Character of business — TTse for passenger oad freight purposes — A street railway company may be authorized to carry both passengers and freight.^" If the company is organized for the purpose of carrying passengers only it cannot use its tracks for the carriage of freight, without obtaining an additional fran- chise for that purpose.*^ A common carrier has a right to deter- mine what particular line of business, within the scope of its char- ter, it will follow. If it elects to carry freight only it will be under no obligation to carry passengers and vice versa. And so Iowa 11, (1883); Macon v. Harris, 75 Ga. 761, (1885); State v. Tren- ton, 36 N. J. L. 79, (1872). In the Glaessner case the brewing company constructed a siding to reach its brewery; in the New York case a manufacturing corpora- tion reconstructed a portion of a street railway track for the purpose of operating thereon freight cars to and from its factory; and in the Kansas case the railroad was con- structed as a turnout or siding to reach the defendant's grain eleva- tor. In the last case the court held that the suit could be maintained by abutting lot owners. See also In re Split Rock Cable Road Co., 128 N. Y. 408, (1891). " "The legislature has authority to charter a street surface railroad company and grant the power to carry freight exclusively, or pas- sengers exclusively, or unite the authority to carry both." De Grauw v. Long Is. Elec. P. Co., 43 App. Div. (N. Y.) 502, (1899). In this case it was decided that under the general railroad law of New York which authorizes their incor- poration for the conveyance "of personal property in cars for com- pensation," street surface railroad corporations may operate cars, de- signed and used exclusively for carrying express matter, freight or property. State v. Dayton Trac. Co.. 64 Ohio St. 272, (1901); Turn- pike Co. V. United Railways & Elec. Co., 93 Md. 138. (1901); Matter of Washington St. Asylum & Park Ry. Co., 115 N. Y. 442, (1889); Peo- ples R. T. Co. V. Dash, 125 N. Y. 93, (1890) ; Aycock v. San Antonio Brewing Asfioc'n. 63 S. W. Rep. 953, (1901). But see Linden Land Co. V. Milwaukee Elec. Ry. Co., 107 Wis. 493, 511, (1900). " In Attorney-General v. Chicago & Evanston R. R, Co., 112 HI. 611, (1884), the court held that a petition of the property owners was neces- sary to enable the company to use its tracks for freight purposes, and that an ordinance not so supported ■waa void, and the unauthorized prosecution of such business a pub- lic nuisance, which the state might cause to be abated. South & N. A. R. Co. V. Highland Ave. Ry. Co., 119 Ala. 105, (1898); St. Louis B. & S. Ry. Co. V. Gray, 100 111. App. 538, (1901), holding that a street railway company organized for the carrying of passengers cannot carry express parcels; St. Louis & M. Ry. Co. V. Kirkwood, 159 Mo. 239, (1900). A street railway organized under a statute authorizing its formation for the transportation of passengers has a right to transport material incident to its legitimate business, such as coal to its power house. Caswell v. Boston Elec. 16 THE LAW OF STEEBT RAILWAYS. [§10, if it holds itself out as a carrier of a particular kind of freight, or of freight generally, being prepared for carrying in a particular way, it will only be bound to carry to the extent and in the man- ner proposed.*^ § 10. Incorporation and organization — how existence and regularity questioned — A substantial compliance with the statute to which it owes its existence is required as a condition of the right of a private corporation to exercise the franchises which it assumes.*^ But irregularities in the organization of the coiapany are not necessarily fatal to the being of the corporation. The directions in regard to its organization are not conditions of its existence. Hence, a failure to follow them will at most work a forfeiture and enable the state to retake the franchise; it cannot entitle her to judgment that the franchise does not exist.** Wor does the fact that the company has not complied with the statute in its organization authorize an abutting property owner to bring a suit to enjoin the laying of its tracks, unless his property rights are thereby affected, because the usurpation of a corporate fran- chise is a matter between the company and the state which the latter may waive where the prQperty rights of individuals are not invaded.** Upon a bill by one street railway company to restrain another from unwarrantably interfering with the rights, privi- leges and property of the complainant, charges being preferred by each against the other, the court will not investigate the steps Ry. Co., 190 Mass. 527, 77 N. B. (1894); Phila. & Merion Ry. Co.'s Rep. 380, (1901). Petition, 187 Pa. St. 123, (1898); "Wiggins Perry Co. v. Elast St. Wallamet Falls Co. v. Kittridge, Louis Union Ry. Co., 107 111. 450, 5 Sawyers (U. S.) 44, (1877); (1883). Pinkerton v. Penna. Trac. Co., 193 "^Morawetz on Priv. Corp. (2d Pa. St. 229, (1899). Application Ed.), sec. 746; State v. Critchett, 37 of Brooklyn Elev. Ry., 125 N. Y. Minn. 13, (1887); Vanneman v. 434, (1891). See Chap. II, sec. 44. Young, 52 N. J. L. 403, 20 Atl. Rep. "> Nichols v. Ann Arbor & Ypsi- 53, (1890). lanti St. Ry. Co., 87 Mich. 361, " Commonwealth v. Central Pass. 49 N. W. Rep. 538, (1891) ; In Ry. Co., 52 Pa. St. 506, (1866). The re New York Elevated R. R. Co., charter cannot he attacked collat- 70 N. Y. 327, (1877); Attorney- erally, but only upon proceedings General v. Fagan, 22 La. Ann. 545, at the instance of the state. Hlnch- (1870) ; Taylor on Corps., sec. 145; man v. Philada. & West Chester North v. Pate, 107 Ind., 356, Turnpike Road, 160 Pa. St. 150, (1886); Quinn v. Shields, 62 Iowa § 11. J RIGHT TO CONSTRUCT EXTENT HOW ACQUIRED. 17 in the organization of either for the purpose of determining whether the corporation has a legal existence.*** § 11. A street railway constructed and operated without authority of law is a public nuisance A street railway con- structed in a public highway^ without authority of law, is a con- tinuous obstruction, because it is an invasion of the public ease- ment. The public has a right of free passage over every part of the street, and no traveler thereon, whether by public or private conveyance or otherwise, has a right of way superior to that of any other traveler, except in pursuance of a lawful franchise granted in the exercise of sovereign authority.*^ A railway com- pany cannot occupy a street with its track, even temporarily, unless the right to do so be clearly conferred by its charter; and such unauthorized occupation of the street is held to be a nuisance per se.** This rule includes not only railways maintained by cor- porations which were never legally organized, those whose charters have been forfeited by due course of law, those whose franchises were granted for private purposes merely, and those acting under charters granted ultra vires, but also railways operated under color of an illegal transfer of the franchise.*^ 129, (1883). See sees. 44 to 52, for 538, (1891); Easton, South Easton forfeiture of franchise. In Bona- & West End Pass. Ry. Co. v. parte v. Baltimore H. & L. Ry. Co., Easton, 133 Pa, St. 505, (1890) ; 75 Md. 340, (1892), it was held that Metropolitan City Ry. Co. v. Chi- an abutting property owner may cago, 96 111. 620, (1880) ; Denver & by injunction inquire into the Swansea Ry. Co. v. Denver City question whether a corporation has Ry. Co., 2 Colo. 673, (1875) ; Davis ever had legal existence. v. Mayor of New York, 14 N. Y. "Denver & Swansea Ry. Co. v. 506, (1856); Brooklyn City R. R. Denver City Ry. Co., 2 Colo. 673, Co. v. Furey, 4 Abb. Pr. N. S. 364, (1875), in which the court held (1867); Commonwealth v. Erie & that quo warranto was the proper North-East Ry. Co., 27 Pa. St. 339, remedy; Pittsburg & Castle Shan- (1856); Philadelphia v. Thirteenth non R. R. Co. V. West Side Ry. Co., & Fifteenth St. Pass. Ry. Co., 8 33 Pitts. (Pa.) 11, (1902). Phila. 648, (1871). " Van Home v. Newark Pass. Ry. '^ Attorney-General v. Lombard Co., 48 N. J. Eq. 332, 21 Atl. Rep. & South Sts. Pass. Ry. Co., 10 1034, (1891); Larimer & Lincoln Phila. 352, (1875) ; Daly v. Milwau- St. Ry. Co. v. Larimer St. Ry. Co., kee Elec. Ry. Co., 119 Wis. 398, 137 Pa. St. 533, (1890); Nichols v. (1902). Ann Arbor & Ypsilanti St. Ry. "In a case decided by the New Co., 87 Mich. 361, 49 N. W. Rep. York Court of Appeals, a street 2 18 THE LAW OF STEEET EAILWATS. [§12. § 12. Bemedy for unauthorized construction and operation — As to the appropriate remedy for the unauthorized use of streets for railway purposes the courts are not in entire harmony. The general rule is that an injunction will issue at the suit of a private individual who sustains special injury, but that where the nui- sance is purely a public one, no injury being done or threatened to private citizens or their property, such acts can be restrained only by the public on information filed by a duly authorized railroad company, after abandoning and ceasing to use a portion of its road, entered into a contract with, a private individual, whereby it at- tempted to grant to him the right to run freight cars over that portion of its road which it no longer used. This the court held It had no right to do, and that such use of the tracks by the lessee was a nui- sance. Said the court: "It was a scarcely undisguised attempt by the railroad company to transfer to an individual, or to the firm for which he was acting, its franchise as common carrier, over the part of its route specified in the con- tract, with a view and for the pur- pose of enabling the grantee to operate the road thereon, as private property, and exclusively for the purposes of his private business." Fanning v. Osborne, 102 N. Y. 441, 447, (1886). In Bldert v. Long Is. Elec. Ry. Co., 28 App. Div. (N. Y.) 451, (1898), it was held that the erection upon a public highway of an inclined plane, connecting the tracks of a surface railroad with an elevated, without the consent of the abutting property owners, was a nuisance. In Hamilton v. New York & Har- lem R. R. Co., 9 Paige Ch. 171, (1841), it was held that a railroad running through the streets of a city, which did not materially in- terfere with the use of the streets for ordinary purposes, or injure the value of the adjacent property, was not a nuisance. And in Peterson V. Navy Yard, Broad St. & Fair- mount Ry. Co., 5 Phila. 199, (1863), it was decided that laying rails on a street is not in law a nuisance, a statement, however, which is made complete, as the report shows, by the modification, that it is not such a nuisance as may be enjoined at the suit of a private individual sus- taining no special injury. But nothing which is authorized by competent authority can be treated as a nuisance per se. Romer V. St. Paul City Ry., 75 Minn. 211, (1899); Chicago North Shore St Ry. V. Payne, 192 111. 239, (1901), affirms s. c. 94 HI. App. 466, (1900) ; Randolph v. Freeholders of Union, 63 N. J. L. 155, (1899); St. Louis & M. Ry. Co. V. Kirkwood, 159 Mo. 239, (1900); Transportation Co. v. Chicago, 99 U. S. 635, (1878); Grand Rapids Ry. Co. v. Heisel, 38 Mich. 62, (1878) ; Davis v. Mayor of New York, 14 N. Y. 506, (1856); Hinchman v. Paterson R. R. Co., 2 C. E. Green 75, (1864); Attorney- General ex rel. B3aston v. Railroad Co., 9 C. B. Green 49, 58, (1873); Savannah & Thunderbolt Ry. Co. V. Savannah, 45 Ga. 602, (1887). The construction of a street rail- road under the authority of an Ille- gal ordinance is a trespass and may be enjoined. General Elec. Ry. v. Chicago I. & L. Ry. Co., 107 Fed. Rep. 771, (1901). §12.J EIGHT TO COSrSTEUCT EXTENT HOW ACQUIEED. 19 public officer.^*' In Ohio, where the consent of abutting property owners is a jurisdictional fact, it has been held that, in default of obtaining such signatures, the construction of the railway may "• Allen V. Clausen, 114 Wis. 244. . (1902); State v. Milwaukee, Bur- lington & L. G. Ry. Co., 116 Wis. 142, (1902); Stockton v. Atlantic Highlands Ry. Co., 53 N. J. Eq. 418, (1895); Linden Land Co. v. Mil- waukee Elec. Ry. Co., 107 Wis. 493, (1900); Milhau v. Sharp, 27 N. Y. 611, (1863) ; Faust v. Pass. Ry. Co., 3 Phila. 164, (1858) ; Fanning v. Os- borne, 102 N. Y. 441, (1886); Lari- mer & Lincoln St Ry. Co. v. Lari- mer St. Ry. Co., 137 Pa St. 533, (1890); Coast Line R R. Co. v. Cohen, 50 Ga. 451, (1873); Dillon Mun. Corp. (4th Ed.), sec. 708; Musser v. Fairmount & Arch St. Ry. Co., 5 Pa. Law J. Repts. 466, 7 Am. Law Reg. 284, (1859), hold- ing that the unauthorized use of a street by a horse railway is a nuisance per se and may be en- joined, and the removal of its tracks compelled, at the suit of a citizen sustaining special injury. In Connecticut it has been de- cided to be no objection to the granting of an injunction against the laying of a track in a street not covered by the company's charter, that the borough would have the right to remove it by force when laid, on the ground that where a party has a remedy by his own act involving the use of force, it does not constitute that adequate remedy at law, which excludes equitable relief. Stamford v. Stamford Horse R. R. Co., 56 Conn. 381, (1888). The right to use force, however. Is de- nied in Pennsylvania where the track was laid in good faith, and with full knowledge of the munici- pal authorities, who made no ob- jection at the time. The court held that, although the railroad was not constructed in the man- ner prescribed in its charter, it could not be classed among the nuisances that city authorities may abate summarily without process of law, even though, by reason of the nature of its construction, it might obstruct the street to such a degree as to amount to a nui- sance; and that the railroad com- pany was entitled to an injunction to prevent a threatened destruction and removal of its tracks. Easton, South Easton & West End Pass. Ry. Co. V. Easton, 133 Pa. St. 505, (1890). But see Stewart v. Village of Ashtabula, 98 Fed. Rep. 516, (1899). The bill should issue at the in- stance of the people, and not of abutting property owners or other citizens, where no special injury has been sustained. People v. Third Ave. R. R. Co., 45 Barb. 63, (1865); Telford v. Coney Is. Ry. Co., 5 App. Div. (N. Y.) 465, (1896); State v. Newport St. Ry. Co., 16 R. I. 533, (1889); Denver & Swansea Ry. Co. V. Denver City Ry. Co., 2 Colo. 673, (1879); Peterson v. Navy Yard, Broad St. & Fairmount St. Ry. Co., 5 Phila. 199, (1863); Attorney-Gt i- eral v. Lombard & South Sts. Pass R. R. Co., 10 Phila. 352, (1875); Philadelphia v. Thirteenth & Fif- teenth Sts. Pass. Ry. Co., 8 Phila. 648, (1871); Davis v. Mayor, 14 N. Y. 506, (1856); Osborne v. Brooklyn City R. R. Co., 5 Blatch. 366, (1866) ; People v. Third Avenue R. R. Co., 45 Barb. 63, (1865); Glaessner v. Anheuser-Busch Brew- ing Association, 100 Mo. 508, (1890); Attorney-General v. Chi- 20 THE LAW OF STREET KAILWAYS. [§13. be enjoined at the suit of the owners of property on the street in which it is about to be constructed.®^ § 13. Delegation of power to local authorities In most of the states large powers for the government and control of street railroads are delegated by the constitution or the legislature to the local authorities for the better protection of local interests.®^ Municipal corporations possess only those powers expressly granted, those which are necessarily implied, and those which are indispensable to the attainment and maintenance of their declared objects or purposes.®^ Whether or not a certain route is prac- ticable or desirable, what motive power should be adopted, whether the road should be single or double track, the kind of rails to be used, what the gauge of the tracks should be, how frequently cars should be run and during what hours, what regulations should be adopted for the protection of passengers and the general traveling public, whether flag-men should be stationed at crossings, what, if cago & Evanston R. R. Co., 112 111. v. Heisel, 47 Mich. 393, (1882). For other remedies see sec. 24 post and Chaps. Ill, IV. »i Roberts v. Easton, 19 Ohio St. 78, (1869). The reason for this ap- parent departure from the general rule may hf.ve been the fact that the municipal authorities had al- readj' committed themselves to the legality of the proposed railway, by acting upon an erroneous finding that the necessary consents had been obtained, a determination which the court held not to be con- clusive upon the property owners. Sec Glidden v. Cincinnati, 30 W. L. B. 213, (1893), and Allen v. Claw- sen, 11-1 Wis. 244, (1902). But see Powell V. Macon Ry. Co., 92 Ga. 209, 17 S. E. Rep. 1027, (1893), where the use by a company of a spur leading to its power house, the consent of the municipal author- ities having been given, was held to be a proper use. " See sec. 29, post. ™ Central R. & El. Co.'s Appeal, 67 Conn. 214, (1896). 611, (1884); Stewart v. Chicago General Street Ry. Co., 58 111. App. 446, (1895) ; Van Home v. Newark Pass. Ry. Co., 48 N. J. Eq. 332, (1891) ; Brown v. Atlantic Power Co., 113 Ga. 462, (1901). Indictment — ^A company which obstructs a public street by laying down a steam railway without au- thority may be indicted for main- taining a public nuisance. Com- monwealth V. Old Colony & F. R. R. Co., 14 Gray 93, (1859); Pitts- burgh, Virginia & Charleston Ry. Co. V. Commonwealth, 101 Pa. St. 192, (1882). By analogy the same remedy might be enforced against a street railway company guilty of a like offense. Damages — Damages may be awarded to the adjoining proprie- tors who sustain special injuries. Cain V. Chicago, Rock Island & Pa- cific R. R. Co., 54 Iowa 255, (1880) ; Stange v. Hill & West Dubuque St. Ry. Co., 54 Iowa 669, (1880); Grand Rapids & Indiana R. R. Co. § 14. j EIGHT TO CON-STRUOT EXTENT HOW ACQUTEED. 21 any, signal lights should he used, the rate of speed, the use of auto- matic bells or other signals of warning, the compensation to be paid for the franchise, regulations as to street paving and reipairs, the joint use of tracks by different companies and regulations as to the removal of snow and the sweeping and sprinkling of tracks, are but a few of the questions which may arise; and, for impera- ti'^'e local reasons, governed by time, place and circumstances, they may be decided differently for various cities and villages, yet wisely for all."* A municipality when authorized to do so by statute has power to enter into a contract with a street railway company for the use of its streets, and may stipulate terms other than those expressed in the statutes which govern it. But it can- not barter away its legislative or governmental powers so as to dis- able it from the performance of its public functions.^'' § 14. Power of municipal corporations to grant the franchise —delegation of the power. — By some courts it has been held that the charter of a municipal corporation conferring tipon it the usual powers to establish, operate, manage, improve, control, repair and vacate streets, but containing no express reference to street " The consent of the local au- local authorities and property own- thorities is generally made a pre- ers, see post sees. 28, 29, and fur- requisite to the enjoyment of the ther as to conditions which may be grant; and where the right to im- imposed see Chaps. Ill, VIII, IX, X. pose conditions Is not expressly As indicating the tenor of some of conferred, it will be implied from the earlier decisions, see Faust v. the power to withhold consent. Pass. Ry. Co., 3 Phila. 164, (1858) ; Philadelphia v. Ridge Ave. Ry. Co., Harrisburg v. Harrisburg Ry. Co., 143 Pa. St. 444, 22 Atl. Rep. 605, 1 Pearson 298, (1867); Brooklyn (1891); Pittsburgh & Birmingham City & Newtown Ry. Co. v. Coney Pass. Ry. Co. v. Birmingham, 51 Pa. Island & Brooklyn Ry. Co., 35 Barb. St. 41, (1865); Sayers v. Marshall- 364, (1861); Hope v. Sixth & Eighth town St. Ry. Co., 65 la. 742, 23 Ave. R. R. Co., 2 Liv. Law Mag. N. W. Rep. 150, (1885); Lookhart 584, (1854). V. Craig St. Ry. Co., 139 Pa. St. '^ Macon St. Ry. Co. v. Macon, 112 419, 21 Atl. Rep:. 26, (1891); De- Ga. 782, 786, (1900); New York & troit Citiz. St. Ry. Co. v. Detroit, New England Ry. Co. v. Bristol, 151 110 Mich. 384, 68 N. W. Rep. 304, XJ. S. 556, (1893); Baltimore H. G. 35 L. R. A. 859, 5 Am. & Eng. R. Co. v. Baltimore, 64 Fed. Rep. 153, Cas. (N. S.) 15, (1896) ; Id., 171 U. S. (1894) ; Wabash Ry. Co. v. De- 48, (1897). For constitutional and fiance, 167 U. S. 88, (1897); Adams statutory provisions in various v. Union Ry. Co., 21 R. I. 140, states, requiring the consent of (1899). 22 THE LAW OF STEEET RAILWAYS. [§14. railways, will not authorize it to permit the use of its streets for that purpose;^® but in many other jurisdictions the courts have reached a different conclusion. ^^ In each case it will be necessary to apply the established rules of interpretation to the particular constitutional or statutory provision under consideration in order to determine whether or not such power has been conferred. But where there is a constitutional provision or a condition in the charter of a company, that the right to construct a street railway sliall 1)0 subject to the consent of the local authorities, it has been held sufficient to confer on the municipality the authority "'Asheville St. R. Co. v. West Asheville & S. P. Ry. Co., 114 N. C. 725, (1894); Stillwater v. Lowry, 83 Minn. 275, (1901). In Eieliels v. Evansville St. Ry. Co., 78 Ind. 261, (1881), it was decided that the ordi- nary and incidental powers of a municipal corporation were not broad enough to include the power to grant street railway franchises, hut that such authority "may be conferred by the legislature either ia express words or by necessary implication." In Louisville & N. R. Co. V. Mobile J. & K. C. Ry. Co., 124 Ala. 162, (1899), it was decided that the provisions of an act conferring authority upon the city of Mobile, "to make ordinances concerning rights of way, regulation of street cars, street railways," etc., were in- tended merely to authorize police regulations, and did not by implica- tion authorize the city to grant a street railway franchise in its streets. See also Covington St. Ry. Co. v. Covington, 9 Bush. 127, (Ky., 1872); Attorney-General v. Lombard & South Sts. Pass. Ry. Co., 10 Phila. 352, (1875); Davis v. Mayor, 14 N. Y. 606, (1856); Schaper v. Brooklyn & Long Island Cable Ry. Co., 124 N. Y. 630, (1891) ; Coleman v. Second Ave. Ry. Co., 38 N. Y. 201, (1868); Logans- port Ry. Co. V. City of Logansport, 114 Fed. Rep. 688, (1902). "' In the following cases it was held that the general powers of municipalities over their streets authorized them to grant street railway franchises: Detroit Citi- zens' St. Ry. Co. V. Detroit, 64 Fed. Rep. 628, (1894) ; Beeson v. Chicago, 75 Fed. Rep. 880, (1896); State ex rel. V. Corrigan Consolidated St. Ry. Co., 85 Mo. 263, (1884); Forman v. New Orleans & Carrollton Ry. Co., 40 La. Ann. 446, (1886); Brown v. Duplessis, 14 La. Ann. 842, (1875); Milhau V. Sharp, 15 Barb. 193, (1853); Milhau v. Sharp, 17 Barb. 435, (1854); New York & Harlem R. R. Co. V. Mayor, 1 Hilt. 562, (1858); Birmingham & Pratt-Mines St. Ry. Co. V. Birmingham St. Ry. Co., 75 Ala. 465, 470, (1885); State ex rel. Jacksonville St. Ry. Co., 29 Fla. 590, 10 So. Rep. 590, (1892). See also Dillon on Mun. Corp. (4th ed.), sec. 719. Sec. 2 of the Kansas Bill of Rights is as follows: "All political power is inherent in the people, and all free governments are founded upon their authority, and are instituted for their equal protection and bene- fit. No special privileges or im- munities shall ever be granted by the legislature which may not be altered, revoked or repealed by the § 15.] EIGHT TO CON-STBUCT ^EXTENT HOW ACQUIEED. 23 to grant the fraucliise.^^ Tlje authority to make the grant, vested by laAv in the common council, cannot be delegated by it to a board or officer having no legislative power.^ § 15. Legislative recognition and confirmation of grants Curative acts of the legislature, confirming grants made by city councils or other local public authorities acting in excess of their powers, will, from the time of their enactment, render valid the same body; and this power shall be exercised by no other tribunal or agency." By the Kansas statutes the council was empowered to open and improve the streets, avenues and alleys, to prevent encroach- ments, to remove obstructions, to regulate the planting and protection of shade trees, the building of door- ways, awnings, hitching posts and rails, and all other structures pro- jecting upon or over and adjoining, and all other excavations through and under the sidewalks, or along any of the streets of the city; and the mayor and council were vested with power "to enact, ordain, mod- ify or repeal any or all ordinances not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city, the preser- vation of peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect." The plaintiff having con- structed a street railway under a city ordinance, and the defendant having threatened to tear up and destroy the same, suit was brought to enjoin any interference with plaintiff's tracks, which involved the power of the council to make such a grant under the constitu- tional and statutory provisions above cited. Upon this point the court said: "Under the general con- trol over the streets and alleys given to cities of the second class by Chap. 19, Comp. Laws, 1879, the city council had the power to grant to a street railway company per- mission to construct and operate a street railway on the streets of the city, and a track constructed by virtue of such permission was law- fully occupying the street." Atch- ison St. Ry. Co. V. Missouri Pacific Ry. Co., 31 Kan. 660, (1884). In several of the states, street railways, some of which are still in existence, were authorized by city ordinances years before any such power was expressly conferred by statute. '^ Almand v. Atlanta Consolidated Ry. Co., 108 Ga. 417, (1899); De- troit Citlz. St. Ry. Co. v. Detroit, 110 Mich. 384, (1896); Houston v. Houston C. Ry., 83 Tex. 548, 29 Am. St. Rep. 629, (1892). ■>' State ex rel. Henderson v. Bell, 34 Ohio St. 194, (1877). See also Citizens' St. Ry. Co. v. Jones, 34 Fed. Rep. 579, (Ark., 1888); Potter V. Collis, 156 N. Y. 16, (1898). In Musser v. Pairmount & Arch St. Ry. Co., 5 Clark 466, (1886), the court held that where a city had taken action, refusing its consent to the occupancy of its streets by a street railway company, its legislative power was exhausted and a subse- 24 THE LAW OF STEEET RAILWAYS. [§15. franchise previously conferred. ®° Where the legislature, by a special act, recognizes a corporation as a valid existing corpora- tion, and authorizes it to exercise corporate rights, the effect of such legislation is to cure all charter defects in the original certifi- quent ordinance granting consent void. The power of tlie local authorities to grant a right of 'way cannot be affected or limited hy the condition oi the street at the time, for their discretion in such matters is not subject to judicial control. Hence, the fact, urged by abutting owners, that a street covered "by a projected route has just been Improved by the Donstruction of an expensive pave- ment, the cost of which has been assessed upon the abutting property, and that the laying of railway tracks would materially injure the pavement, constitutes no valid ob- jection to the grant. Lockhart v. Craig St. Ry. Co., 139 Pa. St. 419, (1891). "Kittinger v. Buffalo Trac. Co., 160 N. Y. 377, (1899); Louisville Trust Co. V. Cincinnati, 76 Fed. Rep. 296, (1896). The Chicago & Evanston Railway Company was in- corporated for general railroad purposes; but, on account of some doubt as to its right to enter the city or to use steam as a motive power, it accepted the privilege granted by city ordinance to pro- pel its cars through certain streets by horse power and under the ordi- nances governing street railway companies, thus being authorized to conduct its business as a horse railway at one end of its line, and as a steam railroad throughout the remainder of its route. Subse- quently the general assembly con- firmed the ordinance and empow- ered the railroad company to con- struct and operate its road in the streets, and provided that "such ordinance may from time to time be changed, altered or amended, and such other provisions be made, as to the common council may seem proper, and be agreed to by said company." Subsequently the common council passed an ordi- nance authorizing the company to lay tracks on certain streets and to occupy other streets jointly with another company, and to use steam as a motive power. Thereupon the Attorney-General and the State's Attorney of Cook county filed an information in chancery in behalf of the people of the state to enjoin the proposed construction of tracks, on the ground that the grants from the city were made without pre- vious legislative authority and therefore void. The court. Justice Scott dissenting, affirmed the de- cree of the lower court, dismissing the information. Attorney-General V. Chicago & Evanston Ry. Co., 112 111. 611, (1884). The authority of cities in California to authorize cars to be propelled by electricity having been questioned, the legis- lature of that state passed an act legalizing such ordinances, of whch the court said: "If constitutional, the eflScacy of this act of the legis- lature, cannot, in our opinion, be doubted." People v. Los Angeles Electric Ry. Co., 91 Cal. 338, 27 Pac. Rep. 673, (1891). The com- mon council of St. Paul having bj ordinance granted a franchise for the construction of a street rail- way, which was subsequently, by the legislature, "confirmed and § 16. J EIGHT TO COlSrSTEUCT EXTENT HOW ACQUIEED. 25 cate under which the company was organized."'- The legislature cannot however, by curative acts, validate an unauthorized grant unless it has power under the constitution to authorize such grant. § 16. When city not subject to judicial control nor liable in damagfes for unauthorized grant, or improper construction or opera- tion — In the exercise of its legislative powers, whether inherent or delegated, to grant franchises and impose conditions, a city is validated," it was held that there- alter the common council could not rescind or revoke the right so granted. Nash v. Lowry, 37 Minn. 261, 33 N. W. Rep. 787, (1887). The city of Denver granted to a street railway company the right to con- struct and operate by electricity in its streets before its charter author- ized such grant; subsequently the charter was amended authorizing the city to grant right of way for such purpose, and a city ordinance was passed ratifying its prior grant. It was held that the ordinance was to be regarded as a curative statute, legalizing the subsequent use by the street railway company. Denver Tramway Co. v. Mayor, 20 Colo. 150, 1 Am. & Eng. R. Cas. (N. S.) 124, 37 Pac. Rep. 723, (1894). A provision in a contract between a city and a street railway company that the city should not reduce fares below five cents was not abro- gated by a subsequent contract providing that "in the construction, maintenance and operation" of its lines the company should be sub- ject to all present or future ordi- nances of the city. Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 118, (1910). "Koch V. North Ave. R. R. Co., 75 Md. 222, 23 Atl. Rep. 463, (1892) ; Basshor v. Dressel, 34 Md. 503, (1871); Kanawa Coal Co. v. Kanawa & Ohio Coal Co., 7 Blatch. 391, (1870); Bo we v. Allenstown, 34 N. H. 351, (1857); Morawetz Priv. Corp., sec. 20. Brown v. Atlanta Ry. Co., 113 Ga. 462, (1901), decides that the legislature may validate a corporation where the charter was granted without authority of law, or in violation of law. °=Stange v. City of Dubuque, 62 la. 303, (1883); Kittinger v. Buf- falo Tr. Co., 160 N. Y. 377, (1899); Knorr v. Miller, 5 Ohio C. C. 609, 623, (1891), (affirmed by supreme court without opinion), holding that a validating act can have no effect where its operation would enable the municipal officers to evade the general statutory pro- vision requiring the franchise to be granted to the best bidder. "If the thing omitted, which consti- tutes the defect sought to be re- moved, is something which the legislature might have dispensed with by a previous statute, it may do so by a subsequent one. If the irregularity consists in doing some act or doing it in the mode which the legislature might have made immaterial by a prior stat- ute, it may do so by a later one. It may thus ratify a contract of a municipal corporation for a public purpose and establish municipal or- dinances and proceedings irregu- larly adopted or instituted." Hat- zung V. Syracuse, 92 Hun 203, 208, (1895). 26 THE LAW OF STEEBT EAILWATS. [§16. not subject to judicial control, unless its action is ultra vires, fraudulent, or in violation of contract rights.*' An unauthorized grant by a municipal corporation of a franchise in its streets con- fers on the beneiiciary no rights ; and if the grantee, acting under such color of authority, occu,pies the streets, abutting property owners do not thereby acquire any right of action against the municipality. The act of the city ultra vires is not the direct or proximate cause of the damages sustained; and a recovery can be had only against the person or corporation acting under the void grant. Such is the general rule, and it applies even where the grantee gives a bond to indemnify the city against the con- sequences of its grant.®* Nor is a municipal corporation liable for depreciation in the value of abutting property caused by per- mitting a railroad company to place its tracks below grade across the street on which the property is situated, thus deflecting travel from that street to another ;®® nor for the negligence of the com- pany in the construction, equipment or management of its road.®* " Forman v. New Orleans & Car- roUton R. R. Co., 40 La. Ann. 446, (1888); Hinchman v. Paterson Horse R. R. Co., 2 C. E. Green 75, (1864); Hogencamp v. Paterson Horse R. R. Co., 17 N. J. Eq. 83, (1864); Dailey v. Nassau County Ry. Co., 52 App. Div. (N. Y.) 272, (1900); Adamson v. Nassau Blec. Ry. Co., 89 Hun. 261, (1895) ; Nor- walk St. R. Co.'s Appeal, 69 Conn. 576, (1897), holding that the power to regulate' the location, con- struction and operation of street railways, conferred upon municipal authorities falls without the limit of the judicial department and that a statute giving the right of appeal to the superior court, when the municipal authorities fail to exer- cise their powers within a limited time, cannot authorize the court to act in a legislative capacity and correct the action of the municipal authorities for failure to give the notice required by the statute. See Benwood v. Wheeling Ry. Co., 53 "W. Va. 465, (1903), and Cooley's Const. Lim. (7th Ed.), p. 253. "Green v. Portland, 32 Me. 431, (1851) ; Roll V. Augusta Council, 34 Ga. 326, (1866) ; Murphy v. Chicago, 29 111. 279, 286, (1862) ; Dillon Mun. Corp. (4th Ed.), sec. 710. The supreme court of Iowa in Stange v. Dubuque, 62 Iowa 303, (1883), seems to have followed a different rule. Although professing not to consider the question, it affirmed a judgment obtained against the city of Dubuque for granting to a corporation a fran- chise in one of its streets for a street railway to be operated by steam. »= Fairchild v City of St. Louis, 97 Mo. 85, 11 S. W. Rep. 60, (1888); Canman v. City of St. Louis, 97 Mo. 92, 11 S. W. Rep. 60, (1888); Rude V. City of St. Louis, 93 Mo. 408, 6 S. W. Rep. 257, (1887). »» Pitch V. City of New York, 55 N. Y. Super. 494, (1888), holding that no recovery could b» had 17.j lilGIIT TO COXSTHUCT EXTENT HOW ACQUIRED. 27 But an abutting owner may maintain an action against the munici- paJity for damages to his property caused by a permanent impair- meat of hia means of access by the construction of a railroad, where the city is the beneficiary as the owner of a railroad under the control of trustees.^'' § 17. The duration of grants — During the early history of street railways there was no express constitutional restriction, and usually no express restriction by statute or ordinance, on the duration of grants for their construction, maintenance and opera- tion; but since that time several of the states have by their con- stitutions limited the duration of such easements, while in a majority of the others the power of the local authorities in that respect has for many years, been limited by legislation. In the absence of constitutional limitations on its powers, the sovereign legislative authority in a state, whether acting directly or through local governmental agencies to which it has delegated such power, may grant privileges which are perpetual,^* or for a definite against the city because of the im- proper location or careless manage- ment of a turn-table. Kennedy v. Lansing, 99 Mich. 518, 47 A. & B. Corp. Cas. 85, 58 N. W. Rep. 470, (1894). "English v. Trustees of Cincin- nati Southern R. R. Co. and City of Cincinnati, 8 W. L. B. 15, (1882). '"Louisville Trust Co. v. Cincin- nati, 76 Fed. Rep. 296, (1896), in- volving the validity and duration of franchises granted to the Cincinnati Incline Plane Railway Company to construct and operate a surface track in certain streets of Cincin- nati, under an ordinance of that city containing no express limita- tion on the duration of the grant. Lurton, J., at page 315, said: "The grant under the ordinance of De- cember, 1871, was unlimited as to time. There was at that time no statutory restriction upon the power of a city to grant an unlim- ited street easement to either a railroad or street car company, hav- ing the requisite franchises from the state. The act limiting the power of a city to a term not exceeding 25 years was not passed until May 14, 1878. Neither do we think there was any implied re- striction upon the power of the city springing from reasons of pub- lic policy. The corporation to which this grant was made was perpetual, and we see no sufficient reason which would justify the court in holding that it was not within the discretion of the mu- nicipal government to grant to such a company an imllmited easement upon the streets." People V. O'Brien, 111 N. T. 1, (1888), is a leading case on the 28 TTIE XAW OP STREET RAILWAYS. [§17. power to make grants in perpetuity, in which Ruger, C. J., at p. 38, presents the views of that court on the duration of the grant in- volved In that case, and the power of the common council of the city of New York to make such grants, in the following language: "It will be convenient In the first instance to consider the nature of the right acquired by the corporation under the grant of the common council with respect to its terms or dura- tion. This is to be determined by a consideration of the language of the grant and the extent of the in- terest which the grantor had au- thority to convey. We think this question has been decided by cases In this court, which are binding upon us as authority in favor of the perpetuity of such estates. * * * * The title to streets in New York is vested in the city in trust for the people of the state, but under the constitution and stat- utes it had authority to convey such title as was necessary for the purpose to corporations desir- ing to acquire the same for use as a street railroad. The city had authority to limit the estate granted either as to the extent of its use or the time of its enjoyment, and also had power to grant an interest in its streets for a public use in per- petuity which should be irrevocabl ^. The fact that the case of People V. O'Brien, supra, is regarded as a leading case on the important questions therein discussed and de- cided is emphasized by the refer- ences to it in Skaneateles Water Works Co. V. Village of Skaneate- les, 161 N. Y. 154, 165, (1899), af- firmed in Skaneateles Water Works Co. V. Skaneateles, 184 U. S. 354, (1901); in American Trust & De- posit Co. V. Collins Park & R. R. Co., 101 Fed. Rep. 347, 350, (1900) : in Detroit v. Detroit Citizens' Street Ry. Co., 184 U. S. 368, (1902), and in Dillon on Municipal Corpora- tions (4th Ed.), p. 115. Concerning People v. O'Brien, supra, it should be noted that by the constitution of 1846, as amended, and by general legisla- tion, the state of New York re- served full power to amend or repeal all laws, whether general or special, relating to corporations, and to annul and repeal their charters. In Cincinnati & S. Ry. Co. v. Car- thage, 36 Ohio St. 631, (1881), it was held that a grant made by the council of the village of Carthage for a right of way in one of its streets to a railway company for an unlimited term was, when accepted, a valid contract between the par- ties, and in that case it was treated by the court as a grant in per- petuity and enforceable as such against the grantee. A municipal corporation may grant a perpetual franchise for a right of way over its streets. Seattle v. Columbia & P. S. R. R. Co., 6 Wash. 379, 380, (1893). Concerning the power of the public to acquire vested rights granted to private corporations, Scott, J., at p. 393, said: "Prop- erty rights acquired under and by virtue of franchises thus granted are perpetual, unless otherwise lim- ited In the grant; and there was no limit in this instance, and such franchises are not void in conse- quence thereof. There is no sound reason why a municipal corpora- tion may not bind itself In this par- ticular, as well as an individual may. On the contrary, well recog- nized principles of justice require § 17.] EIGHT TO CONSTEUCT EXTENT HOW ACQUIEED. 29 that it should be so bound, to the end that property rights may be made stable and certain; and the municipality is sufficiently pro- tected under such circumstances; for should it become necessary to thereafter undo the work, and ter- minate the rights granted, and to take the property of the corpora- tion acquired in pursuance and by virtue thereof, it may do so under the exercise of the power of emi- nent domain upon making compen- sation; and this is a sufacient pro- tection for the rights of the city, and one which at the same time affords protection to the rights of the respondents," citing State v. Noyes, 47 Me. 189, (1859), and Port of Mobile v. Louisville R. R. Co., 84 Ala. 115, 4 So. Rep. 106, (1887). In Chicago & W. I. R. Co. v. Chi- cago St. L. & P. R. Co., 15 111. App. 587, (1884), it was held that: "Where a railroad company lays its tracks and builds its railroad on a certain street after having ob- tained permission and authority so to do from the town, the railroad company acquires a perpetual ease- ment in the street. Such easement consists in the right to maintain, use and enjoy its railroad free from hindrance or molestation save such as is incident to the proper and ordinary use of the street by the public, and will be as much protected from unlawful invasion as any other property right." The power of municipalities to make grants in perpetuity, as well as the interpretation to be given to grants without limitation of time, was decided and very fully discussed in State v. Columbus Railway Co., 24 Ohio C. C. 609, (1903), in which it was held: (a) That the right to construct and operate a street railway in the streets of a municipal corporation in Ohio prior to the act of May 14, 1878, (75 O. L. 359, limiting such grants to 25 years), was a franchise or privilege granted by the state upon condition that the city consent to its exercise; (b) that such consent prior to said act, without any limitation of time, to a corporation with succession dur- ing the term of its charter is rev- ocable only by legislative authority; (c) that a franchise or privilege to construct and operate a street rail- way, granted and consented to prior to said act without limitation of time, is perpetual, but subject to be determined by the general assembly under sec. 2, Art. I, or under sees. 1 and 2, Art. XIII, of the constitution; and (d) that the limitation in said act to the term of 25 years was prospective in its operation, and not the exercise by the general assembly of any of the powers reserved to it by said sec- tions of the constitution — the rea- sons of the court being stated in part on pages 630 and 631, as fol- lows: "It will be observed that the legislature, by the acts already cited, provided that a street rail- way company, formed as therein authorized, shall be a body cor- porate with succession, and that it might mortgage its real and per- sonal property and franchises, in- cluding the franchise of being a corporation. In view of these pro- visions and of the large expendi- tures necessary to such use of the streets, and of the fact that such use was comparatively new and the financial success of the venture uncertain, it would be unreason- able to conclude that it was the 30 THE LAW OF STREET RAILWAYS. [§17. intention either of the legislature or of the city or other agent of the state to grant merely a license rev- ocable at the pleasure of the city, and the conclusion Is irresistible that it was the intention of the grantor to consent to such use of the street either in perpetuity or for a reasonable time, or without limit of time, and in either event the result must be the same in this action, for the state has not deter- mined or limited the term, and no attempt has been made to show what would be a reasonable time, and it is not apparent from the agreed facts; and if the grant is not from the state, but from the city, then we are of the opinion that the whole matter was com- mitted to the city, and that it might in its discretion grant in per- petuity, and that its grant, being silent as to time, is in perpetuity, it being unreasonable to conclude that it was merely at pleasure. No case holding that a grant In per- petuity is void has been brought to our notice, nor any in which it is attempted to show that the rea- soning upon which an exclusive grant is held void would require a like conclusion." In Des Moines St. Ry. Co. v. Des Moines, 151 Fed. Rep. 854, (1907), it was held that a city ordinance which granted to a street railway company the right to maintain and operate tracks on the streets of the city for an indefinite term, but pro- viding that for the first thirty years the easement should be ex- clusive, granted a franchise in per- petuity, and that the company was entitled to an injunction restrain- ing the city from enforcing a reso- lution to remove the tracks from the streets, not only on the ground that the grant was perpetual, but also on the further ground that the city was estopped by its acts recog- nizing the grant as perpetual from insisting upon a different con- struction of the contract. In Blair v. Chicago, 201 U. S. 400, 457, (1905), it was decided that an intention to confer a right in per- petuity cannot be inferred from the mere silence of an ordinance re- specting the term of the grant, "in view of the other ordinances limit- ing grants" for parts of the same system to "twenty-five years and thereafter until the municipality shall exercise its right of pur- chase," "especially since twenty- five years was the limit of the cor- porate life of the grantee;" but in the opinion it is said that the power of the city council to fix the terms and conditions on which the streets of the municipality may be occupied "necessarily includes the right to fix the time for which the streets may be used. This doctrine was, we think, correctly stated by Judge Lurton in delivering the opinion of the Court of Appeals in Louisville Trust Co. v. Cincinnati, 22 C. C. A. 34, 36, 47 U. S. App. 36, 59, 76 Fed. Rep. 296, 308." In Cleveland Electric R. Co. v. Cleveland, 204 U. S. 116, (1906), it was held that "Municipal grants of street railway franchises must be strictly construed," while in De- troit Citizens' St. Ry. Co. v. Detroit, 64 Fed. Rep. 628, (1894), it was decided that "The rule which re- quires strict construction of the powers of municipal corporations is not to be applied so as to defeat legislative intent," and on page 643, per Lurton, J., it was said that "Limitations upon the discretion of a municipality in the exercise of § 17.] EIGHT TO CONSTEFCT EXTENT HOW ACQUIRED. 31 that power ought to be plainly ap- parent before the court will be justi- fied in declaring their existence.'' As to the effect of accepting sub- sequent ordinances, see Cleveland Electric Ry. Co. v. Cleveland, 137 Fed. Rep. Ill, (1905). In Detroit Citizens' St. Ry. Co. v. Detroit Railway, 171 U. S. 48, (1897), it was held that the power to grant easements in the public streets "in perpetuity and in mo- nopoly," must be conferred in ex- press words, or, if inferred from other powers, it is not enough that the authority is convenient to them, but it must be indispensable to them. The ordinance construed in that case "exclusively authorized" the Detroit City Railway Company "to construct and operate railways as herein provided, on and through [certain specified streets], and through such other streets and ave- nues in said city as may from time to time be fixed and determined by vote of the common council of said city of Detroit and assented to in writing by said corporation." In this connection it may be said that it is difficult to understand why the court treated the ordinance as an attempt to make a grant in per- petuity, notwithstanding the fact that it expressly provided that "the powers and privileges conferred by the provisions of this ordinance shall be limited to thirty years from and after the date of its pas- sage." The power to grant for an un- limited period presumes power to grant for a limited period. Cleve- land Electric Ry. Co. v. Cleveland, supra. In Covin v. Chicago, 132 Fed. Rep. 848, 855, (1904), it was held that, in the absence of controlling language to the contrary, the du- ration of a grant made by the leg- islature for an Indefinite term is the period fixed for the life of the grantee. On various questions re- lating to the duration and inter- pretation of grants for the use of streets, see also Logansport Ry. Co. V. Logansport, 114 Fed, Rep. 688, (1902); Grand Rapids B. L. & P. Co. V. Grand Rapids E. E. L. & P. G. Co., 33 Fed. Rep. 659, (1888); Baltimore Trust & G. Co. v. Balti- more, 64 Fed. Rep. 153, (1894) ; Bellevue v. Citizens Horse Ry. Co., 152 111. 171, 26 L. R. A. 681, (1894) ; Mayor v. Second Ave. R. R. Co., 32 N. Y. 261, (1864) ; Davis v. Mayor, 14 N. Y. 506, (1856); Chi- cago V. RumpfE, 45 111. 90, (1867); Logan V. Pine, 43 la. 524, 2 Am. Rep. 261, (1876) ; Milhau v. Sharp, 27 N. Y. 611, (1863). Grants of exclusive rights in streets are considered in Chap V, post; and see also sec. 6, ante. In Birmingham & Pratt-Mines St. Ry. Co. V. Birmingham St. Ry. Co., 78 Ala. 465, (1885), the court, dis- cussing the authority to make grants, said: "Neither the charter of the city of Birmingham, nor the general statute confers on that cor- poration the power to grant, by or- dinance in the nature of a con- tract, the exclusive franchise in perpetuity of running a street rail- way through certain designated streets and avenues of the city; and if such power were granted by its charter or by any public statute, it would be violative of the constitu- tional provision (Art. I, sec. 23) against the passage of laws making an irrevocable grant of special privileges or immunities." See also Cooley's Const. LIm. (7th Ed.), pp. 295-299; Dillon Mun. Corp. (4th Ed.), sees. 692, 695; and Mayor v. Houston St. Ry. Co., 83 Tex. 548, (1892). 32 THE LAW OF STREET RAIEWATS. [§ 18. period which may extend beyond the corporate life of the grantee.*® § 18. Consent of the owners of abutting property — The statutes of several states, prescribing the conditions on which- street railway franchises may be granted, contain a requirement that the consent of the owners of a given percentage in frontage or value of the property abutting on the proposed route shall be obtained as a condition precedent. So important is this condition deemed as a protection to those who are most interested in grant- ing or withholding the franchise, that in JSTew York, where the power had been abused, the restriction, applying to street rail- ways of every description, has been embodied in the constitution, but with the proviso that, on failure to procure the consent of property owners, a proceeding in the nature of an appeal is authorized, to be heard and determined by a board of commis- sioners appointed by the supreme court for that purpose. ''*' Simi- lar provisions have been incorporated in the constitutions or in the general statutes of a number of the states.''^ Unlike certain con- °° A street railway company is not porate life it is a divisible asset. Incapable of taking a grant of a Minneapolis v. Minneapolis St. Ry, right to use the streets of a city Co., 215 U. S. 417, (1910). for Its railway for a term extending ™ The New York constitution beyond its own corporate franchise. Art. Ill, sec. 18, requires the con the Interest granted being assign- sent "of th© owners of one-half in able. Detroit Citizens' Ry. Co. v. value," of the abutting property Detroit, 64 Fed. Rep. 628, 26 The statute (N. Y. Rev. Stats, L. R. A. 67, 12 C. C. A. 362, 122 U. 1889, p. 1811) requires that such S. App. 570, (1894). So in Detroit consent shall be in writing and to V. Detroit Citizens' St. Ry. Co., 184 be "acknowledged as are deeds en- U. S. 368, 394, 395, (1901), it was titled to be recorded." See Mat- held that the extension of the terms ter of Nassau Elec. Ry. Co., 6 App. of the city's consent beyond the Div. (N. Y.) 141, (1896) and sec. corporate life of the company was 21, post, note 85. not illegal and void, citing People "The Arkansas statute (Rev. V. O'Brien, 111 N. Y. 1, 2 L. R. A. Stat, of 1884, sec. 5471) requires 255, 18 N. E. Rep. 392, (1888); as to railroads generally the writ- and Miner v. New York C. H. R. R. ten consent of the owners of two- Co., 123 N. Y. 242, 29 N. E. Rep. thirds in value of the abutUng 399, (1890). property. The Illinois statute "A franchise may extend beyond (Rev. Stat., 1885, p. 472, Chap. 24, the life of the corporation to which sec. 63, par. 90) forbids the local it is granted; at the end of the cor- authorities to grant a right of way. § 18.] EIGHT TO CONSTEUCT EXTENT HOW ACQUIEET). 33 ditions subsequent, which may be waived by the municipal author- ities, the failure to procure such consent is fatal to the grant, nor is the action of the city council, erroneously finding that consent has been given, conclusive upon those who have a right to object to the establishment of the proposed routeJ^ "except upon a petition of tlie own- ers of the land representing more than one-half of the frontage of the street, or so much as is sought to be used for railroad purposes." See Kirchmann v. West & South Towns St. Ry., 58 111. App. 515, (1895). In New Jersey (N. J. Supp., 1886, pp. 364-5, sec. 8) it is provided that the common council shall not pass an ordinance for the location of a street railway until the company shall have filed "with the clerk of the body to which ap- plication is made the written con- sent of the owners of at least one- half of the property fronting on such portion of the street through which such railway is to be located." By a subsequent act (N. J. Laws, 1888, p. 388) it is pro- vided that, upon failure to obtain such consent for an elevated rail- road, the company "may apply to a judge of the supreme court who shall appoint commissioners to ex- amine and approve the easement or right of passage required for such proposed railroad." For re- view and construction of acts, see Avon V. Neptune City, 57 N. J. L. 362, (1894). See also Act of 1893 (P. L. p. 306, sec. 6); Mercer Co. Trac. Co. v. United N. J. Ry. Co., 65 N. J. Eq. 574, (1903); Act of 1894 (P. L., p. 374) ; Montclair Mil. Academy v. North Jersey St. Ry., 65 N. J. L. 328, (1900); and Act of 1896 (P. L. p. 329); Mercer Co. Trac. Co. v. United N. J. Ry. Co., 64 N. J. Eq. 588, (1903). In Ohio Gen. Code, sec. 3770, no grant can 3 take effect without the written consent of a majority of the prop- erty holders upon each street or part thereof on the proposed route represented by the frontage. Mt. Auburn Cable Ry. Co. v. Neare, 54 Ohio St. 153, (1896). In Missouri (1 Rev. Stat., 1889, sec. 1576) it is provided that the consent in writing of a majority of the resi- dent owners of the land abutting on the street is necessary before any grant of the right of way by the city shall become operative. See also Golden v. Clinton, 54 Mo. App. 100, (1893); Gray v. Dallas Tr. Co., 13 Tex. Civ. App. 158, (1896). '^Roberts v. Easton, 19 Ohio St. 78, (1869). "Such consent is there- fore not a property right adhering to the lot, but is a personal right in the owner of the lot, a power or sword in his hands with which to protect his lot against the arbi- trary powers of the city author- ities. A majority of consents by the feet front is a condition pre- cedent to jurisdiction to pass a street railway ordinance, and each abutting lot owner is free to aid in conferring such jurisdiction, and free to withhold such aid. His actions cannot be controlled in that regard by others on the street, nor by courts of justice in their behalf. Such a condition, such consent, in the nature of things cannot be appropriated under the power of eminent domain.'" Hamil- ton G. & C. Tr. Co. V. Parish, 67 Ohio St. 181, 192, 60 L. R. A. 531, 34 THE LAW OF STEEBT KAILWAYS. [§19. § 19. The requirement as to consents further considered. — The requirement as to consents being jurisdictional should be strictly construed and must be carefully observed. If the application, consents and ordinance relate to a single track, the road cannot, either in its original construction or subsequently, be converted into a double track railway, without obtaining the requisite con- sents for that purpose and the permission of the public aiithori- (1902). See also Emerson v. For- est City Ry. Co., 28 Ohio C. C. 683, (1906). The Illinois rule is contra, Tihbetts V. West & South Towns St. Ry. Co., 54 111. App. 180, (1894) ; Kirchmann v. West & South Towns St. Ry. Co., 58 111. App. 515, (1895), holding that a finding by the city council upon the suffi- ciency of a petition before it, in the absence of a charge of fraud, will not be inquired into by the courts, upon the application of an abutting owner, who, if damaged, has a clear remedy at law. See also Mercer Co. Trac. Co. v. United N. J. Ry. Co., 64 N. J. Bq., 588, (1903). As to the necessity of obtaining consents, see In re Peoples R. R. Co., 112 N. Y. 578, (1889); Attorney-General v. Chi- cago Horse & Dummy Ry. Co., 121 111. 638, (1887); Philadelphia v. Citizens' Pass. Ry. Co., 151 Pa. St. 128, (1892); Craig v. Rochester City & Brighton R. R. Co., 39 Barb. 494, (1862); Benedict v. Seventh Ward Ry. Co., 51 Hun 111, (1889); New York Cable Ry. Co. v. Forty- Second St., Manhattan & St. Nich- olas Ave. Ry. Co., 13 Daly 118, (1885). To the point that the re- quirements of the statute are not merely directory but must be closely followed, see In re New York Cable Ry. Co., 40 Hun 1, (1886) ; In re Broadway Surface R. R. Co., 34 Hun 414, (1885); New York Cable Co. v. Mayor, 104 N. Y. 1, (1887); In re Nassau Cable Co., 36 Hun 272, (1885), holding that the report of the commission- ers is final in the absence of fraud or manifest irregularity. Such consents are necessary for ele- vated railways. In re King's County Elevated R. R. Co., 105 N. Y. 97, (1887); and for sub-surface railways. In re New York District Ry. Co., 107 N. Y. 42, (1887); In re Broadway Underground Ry. Co., 23 Hun 693, (1881) ; People ex rel. New York Underground Ry. Co. V. Newton, 58 N. Y. Super. Ct. 439, (1890). In the New York District Railway case, just cited, the court said: "A railroad con- fined within the limits of a city and proposed to be built exclusively under the surface of the street thereof, is a street railway within the meaning of the provision of the state constitution, Art III, sec. 18, declaring that no law shall author- ize the construction of a street railroad except upon the condition of the consents of the owners of one-half in value the property bounded on and the consent also of the local authorities having con- trol of the street, or in lieu of the consent of the property holders, in case it cannot be obtained, the de- termination of the commissioners appointed by the court that the road ought to be constructed." A petition by a street railway company for the appointment of § 19.] EIGHT TO CONSTEUCT EXTENT HOW ACQUIEED. 35 tiesJ^ But where a grant is duly made to lay a double track, and the company expends large sums in the construction and eqiiip- ment of its road, the city cannot afterwards limit the company to a single track.^* If several streets, or parts of streets, are em- braced within the projected route, consents must be obtained for each portion of the line and such consents are valid as to the streets on which they have been obtained notwithstanding the failure to obtain the requisite consents on other streets.'^® Where one com- pany has obtained the requisite consents to operate a railroad through a street it does not relieve a second company from the necessity of obtaining further consents to enable it to use the tracks of the first. '^^ The fact that the company acquires its con- sent through an intermediary by assignment, instead of directly through the property owners themselves, does not, however, affect commissioners to determine the points of the crossings of its rail- road over another must contain an allegation that it has obtained the necessary consents of property owners. In re Saratoga Electric R. R. Co., 58 Hun 287, 12 N. Y. Supp. 318, (1890); distinguishing In re Lockport & Buffalo R. R. Co., 77 N. Y. 557, (1890). Consent not necessary for freight roads. Wig- gins Ferry Co. v. East St. Louis Union Ry. Co., 107 111. 450, (1883). But where the petition filed has been refused by the local authori- ties, in order to authorize J:he council to act upon a new petition it- must be accompanied with the filing of new consents. Currie v. Atlantic City, 66 N. J. L. 671, (1901). In Golden v. City of Clin- ton, 54 Mo. App. 100, (1893), it was held competent for a city to pass an ordinance granting a right of way, although the requisite con- sents of abutting property owners had not been obtained, but that the right could not be exercised until such consents had been obtained. See also Day v. Forest City Ry. Co., 27 Ohio C. C. 60, (1904); People V. Decatur Ry. Co., 120 111. App. 229, (1905). When non-consenting owners cannot complain, Barney v. Mt. Adams & Eden Park Inclined Plane Ry. Co., 30 W. L. B. 286, (1893). "Roberts v. Easton, 19 Ohio St. 78, (1869). " Burlington v. Burlington St. Ry. Co,, 49 Iowa 144, (1878). "In re People's R. R. Co., 112 N. Y. 578, (1889). "Colonial City Trac. Co. v. Kingston City R. R. Co., 153 N. Y. 540, (1897), affirming, s. c. 15 App. Div. (N. Y.) 195, (1897). This rule does not apply to a street railway operating along the tracks of another by virtue of a lease or traffic agreement under sec. 78 of the Railroad Law of New York, Ingersoll v. Nassau Elec. Ry. Co., 157 N. Y. 453, (1899), affirming s. c. 89 Hun 213, (1895). The former use of a street for street railway purposes by a company whose franchise has expired does not re- lieve the second company from the necessity of securing the consents. Isom V. Low Pare Ry. Co., 29 Ohio C. C. 583, (1908). '66 THE LAW OF STREET EAILWATS. [§20. their validity.^^ The finding of the city council, that the statute relating to consents has been complied with, may be reviewed by a court of equity.^* In such cases, however, the court will not presume that the council acted -without authority, but will, in the absence of evidence to the contrary, assume that all statutory requirements have been fulfilled.^® § 20. Who may sign the statutory consent The term "owner" in the statutes referred to in the last two sections means one who has at least a freehold estate.^'' Under such a statute it has been held that abutting property may be represented by life tenants and tenants by the curtesy or dower; but that a father cannot consent for his daughter, a husband for his wife, tenants in common for each other, guardians for their wards, an adminis- trator, or an executor with power to sell, for the estate, or a presi- dent of a private corporation without the authority of his board of directors; and a doubt has been expressed as to whether or not a city council may consent for a municipal corporation.^^ But it has been decided that an agent may sign for his principal. ^^ "Geneva & Waterloo Ry. Co. v. C. C. 60, (1904). The owner of a New York Central & H. R. R. R. corner lot at the intersection of two Co., 163 N. y. 228, (1900). streets, situate opposite the corner "Bullock V. West Chicago Rapid around which it is proposed that Transit Co., 23 Chic. Leg. News 147 the railway shall run, is held to be (Cook Co. Cir. Ct, 111., (1890)); an abutting property owner, and is Roberts v. Baston, supra; Sommers to be counted among those whose V. City of Cincinnati, 8 Am. Law consents are required under the Rec. 612, (1880). New York Railroad Law. Sea ™ Cincinnati College v. Nesmith, Beach Ry. v. Coney Island & G. Ry. 2 C. S. C. R. 24, (1870) ; In re New Co-. 22 App. Div. (N. Y.) 477, (1897). York Cable Co., 36 Hun 355, (1885) ; '^ Rapp v. City, Stouts & Sedams- In re New York Cable Co., 45 Hun ville R. R. Co., 12 W. L. B. 119, 153, (1887); Bullock v. West Chi- (1884); Bullock v. West Chicago cago Rapid Transit Co., supra; Rob- Rapid Tran. Co., 23 Chic. Leg. News, erts v. Easton, supra; In re Under- 149, (Cook Co. Cir. Ct. (1890) ). ground Ry. Co., 23 Hun 693, (1881). A street railroad act of New Jersey ""A vendee of land under a con- (P. L., 1896, p. 329, provides that an tract to purchase it, not in default executor or trustee holding the legal on his contract and in possession of title, or having power of sale, may land which abuts on the street, has sign the required consent. Hutch- a right to consent to the construe- inson v. Belmar, 61 N. J. L., 443, 446, tion of a street railway thereon. (1898). Day V. Forest City Ry. Co., 27 Ohio == Tibbetts v. West & South § 21.J EIGHT TO CONSTEUCT EXTENT HOW ACQUIEED. 37 § 21. Consents— the New York law Under the New York law the only prerequisite for a petition to have commissionera appointed to determine whether a street railway should be con- structed is that the consent of the abutting property owners can- not be obtained.^* The application for the appointment of com- missioners under the New York statute will not fail because the consent of other companies occupying, in part, coincident routes, has not first been procured. Where a company fails to obtain Towns Ry. Co., 153 111. 147, 38 N. E. Rep. 644, (1894), holding that the agent's signature of the name of his principal to a petition is valid without authority in writing, and that the presumption, in absence of averment to the contrary, is that the signature was authorized. See also North Chicago St Ry. V. Cheetham, 58 111. App. 318, (1895). A written consent given by an unauthorized person, a stranger to the title, and not purporting to be the consent of the owner, after- wards ratified by such owner as his own act but not until after the pas- sage of the ordinance granting per- mission to construct an extension, cannot be counted as the "written consent of the owner" within the meaning of the statutes of Ohio. Sommers v. City of Cincinnati, 8 Am. Law Rec. 612, (1880). *= Currie v. Atlantic City, 66 N. J. L. 140, (1902). But where the route includes the whole of a certain street and a company cannot secure the consent of the property holders along a certain portion of the street, it cannot divide np the route, and obtain the appointment of commis- sioners as to a part of the street less than the projected route. Mat- ter of Cross-Town St. Ry. Co., 68 Hun 236, (1893). But see North Chicago St. Ry. Co. v. Cheetham, 58 111. App. 318, (1895). In such a proceeding it must appear affirma- tively that the consents could not be obtained. As to the proof of that fact see In re New Tork Cable Ry. Co., 40 Hun 1, (1886) ; In re Broad- way Underground Ry. Co. v. New- ton, 23 Hun 693, (1881). It is not necessary that the application for the appointment of commissioners, if sufficient in other respects, should be verified by more than one of the applicants. In re King's County Elevated R. R. Co., 105 N. Y. 97, (1887). The provision of the New York constitution. Art. Ill, sec. 18, pro- hibiting the construction or opera- tion of a street railway "except upon the condition that the consent of the owners of one-half in value be first obtained," does not require that consent to be under seal, or that it should convey any interest in the street, or that it should re- lease the company from liability for damages which the property owners might sustain by reason of the con- struction or operation of the road. In re Cortland & Homer Horse R. R. Co., 31 Hun 72, (1883). Under the New Jersey law consents of abutting property owners must be sealed to confer power upon the committee to grant statutory per- mission. Mercer Co. Tr. Co. v. United N. J. Ry. & Canal Co., 64 N. J. Eq. 588, (1903). 38 THE LAW or STREET RAILWAYS. [§ 21. the requisite consents on one street or on any number less than all, it has been held that those persons only who are interested in property along the street or streets in regard to which the petition is presented are proper parties to the proceedings for the appoint- ment of commissioners to determine whether the road should be constructed, and notice of the application for the appointment of commissioners need be served only upon those property owners whose names appear on the assessment roll.** But, in order to give the commissioners jurisdiction, it must affirmatively appear that a bona iide attempt has been made to obtain the consent of the property owners on all of the streets over which the franchise is sought.®^ In ISTew York the report of the commissioners appointed by the supreme court does not take effect until con- firmed by the court, which has ample power to review the evidence' «'In re Auburn City Ry. Co., 88 Hun 603, (1895). '' In re People's Ry. Co., 20 N. E. Rep. 367, s. c. 112 N. Y. 578, (1889) ; In re Gable Ry. Co., 45 Hun 153, (1887) ; In re Broadway Surface Ry. Co., 34 Hun 414, 417, (1885) ; In re Rochester Electric Ry. Co., 123 N. Y. 351, 358, 359, (1890). Where the petition for the ap- pointment of commissioners shows the list of property owners who had been applied to and refused consent to the construction of a street rail- road in front of their premises; also a list of the streets on which such persons lived, and the valuation in each street of the property owned by the persons refusing; also the total valuation of the property on that portion of each of the streets mentioned along which the com- pany proposed to construct its road, and it appeared that the refusals to consent represented more than one- half of the total valuation, it was held sufllcient to show that the com- pany had tailed to obtain the con- sent of more than one-half in value of the property on the streets named. In re People's Ry. Co., supra. The refusal of abutting owners to sign the consent to a railroad "to be operated by elec- tricity or any motive power other than locomotive steam power," where the company was authorized to use electric power, is not a suflB- cient refusal to afford the company the right to apply to the appellate division for the appointment of commissioners. Matter of Kings- bridge Ry. Co., 66 App. Div. (N. Y.) 497, (1901). A petition by property owners addressed to commissioners appointed by the court in lieu of the consent of abutting owners, asking the commissioners to determine that the road be built in the center of the street does not constitute a consent by the property owners. Koehler v. New York Elev. Ry. Co., 159 N. Y. 218, (1899) . As to the man- ner of showing the refusal of prop- erty owners to consent, see also In re New York Cable Ry. Co., 36 Hun 355, (1885), following In re Broad- way Underground Ry. Co., 23 Hun 693, (1881); In re Broadway Sur- face R. R. Co., supra. § 22. J EIGHT TO CONSTRUCT EXTENT HOW A'CQUIEED. 39 and affirm or reject the report as the facts and circumstances may seem to require.^* § 22. Revocation of consent — It has been decided that con- sents of abutting property holders, when given without considera- tion, are mere licenses which are revocable at will prior to the construction of the railroad or action by the local authorities.*^ But the weight of authority is that where the statute requires that consents be obtained before the petition for the construction of the railroad is granted by the local authorities, such consents are more than mere licenses, and vest a property right in the railway company which cannot be withdrawn.** " In performing this important duty it will consider the location of the route with reference to existing street railways, the width of the streets to he so used, the character of the business conducted there, the number of tracks to be laid, the proposed mode of construction, and such other facts and circumstances as may tend to show the probable effect on the property and business interests in the locality, and whether the proposed railway will promote in any substantial degree the convenience of the people who live or transact business on the sev- eral parts of the proposed route. In re New York Cable Ry. Co., 40 Hun 1, (1886). But in the absence of fraud or manifest irregularity, the General Term has no power to send the case back to the first com- missioners for a further hearing or to appoint new commissioners to rehear the matter. In re Nassau Cable Co., 36 Hun 272, (1885). Where the commissioners' report is unfavorable the appellate court can- not review it. Matter of Nassau Elec. Ry. Co., 6 App. Div. (N. Y.) 141, (1896). "Bullock V. West Chicago Rapid Transit Co., 23 Chic. Leg. News 147, (Cook Co. Cir. Ct., (1890) ). In this case the property owners had ex- ecuted a paper called a "contract for right of way," which was in ef- fect a power of attorney authoriz- ing the secretary of the company to sign their names to the petition to the common council for the passage of the ordinance. Some of those who had signed this paper, and many who had not, afterwards filed protests, and the company filed ad- ditional consents. The court held that both petitions and protests should have been considered by the common council, and that those who protested should not have been counted in favor of the ordinance. See also White v. Manhattan Ry. Co., 139 N. Y. 19, 29, (1893); Joyce V. East St. Louis Ry. Co., 43 111. App. 157, (1892); People v. Decatur Ry. Co., 120 111. App. 229, (1905); Taylor v. Erie City Pass. Ry. Co., 37 Pa. Super. Ct. 292, (1908). ^ Currie v. Atlantic City, 66 N. J. L. 140, (1902). In Adee v. Nassau Elec. Ry., 65 App. Div. (N. Y.) 529, (1901), the court held that under the constitution and stat- utes of New York the consent of an abutting property owner is not a mere license and cannot be 40 THE LAW OF STEEET EAILWATS. [§§ 23, 24. § 23. Variance between consent, or petition, ajid ordinance. — A trivial variance between the route petitioned for, or consented to, and that adopted by the council, may be disregarded as inuna- terial; but a wide departure, or even a substantial variance, in that respect, will render the franchise at least voidable as to those streets not embraced in the petition. ^^ Although the city council cannot evade a statute which requires the consent of adjoining proprietors, by substituting one route for another, it may grant the application as to a part only of the route covered by the appli- cation and petition.®" § 24. Eemedy for proceeding without consent of property owners — The consent of abutting property owners, when required by statute, is made a condition precedent to the right to occupy the street. Until that condition is complied Avith, the company has no right to commence the work of construction, and may be prevented by injunction at the siiit of abutting lot owners with- revoked at will or by the transfer of property before the construction of the railway. "That the legisla- ture regards these consents as something more than mere licenses is evidenced not alone by the for- malities required, making them not only capable of being recorded, but competent evidence, but by the pro- vision for preserving indefinitely the life of such consents as had been granted prior to the adoption of the statute." Coney Is. P. H. & B. Ry. Co. V. Kennedy, 15 App. Div. (N. Y.) 588, (1897). '" "The petition is for an elevated railroad over a very different route from that defined in the ordinance. The common council had before it no petition whatever for such a road along the route fixed by the ordi- nance. An Immaterial variance in the ordinance from the route men- tioned In the petition would not in- validate it. Here the route is very different. The eastern terminus in the ordinance is the south division of the city, while by the petition it was in the west division. The road so located by the ordinance leaves Randolph street about half a mile west of the point fixed in the peti- tion and leaves Ogden avenue one- half to three-fourths of a mile, and then returns again to that avenue. There is a material variance be- tween the petition and the ordi- nance. There was no petition by owners of abutting property to the common council to grant permis- sion to use the streets for an ele- vated railroad as provided by this ordinance. The common council, therefore, had no power to pass this ordinance, and it is a nullity." Bul- lock V. West Chicago Rapid Transit Co., 23 Chic. Leg. News 147, (Cook Co. Cir. Ct, (1890) ). See also North Chicago St. Ry. Co. v. Cheetham, 58 111. App. 318, (1895). "Simmons v. City of Toledo, 5 Ohio C. C. 124, (1891). § 24. J EIGHT TO CONSTEUCT EXTENT HOW AOQUIBED, 4:1 out proof of special injury;®^ but citizens and taxpayers who are not owners of adjacent property have no right of complaint.*^ Where the requisite consents have been obtained the abutting owner who has not given his consent has no right to an injunc- tion to prevent the construction of the road, although he may bi-ing an action to compel the payment of damages.'^ But an abutting owner who has given his consent can enjoin the con- struction of the railway, where it would impose an additional burden on the highway not contemplated in the original consent.®* An injunction may issue, also, on an information filed by the "Roberts v. E^ston, 19 Ohio St. 78, (1869); Wiggins Ferry Co. v. East St. Louis Ry. Co., 107 111. 450, (1883); Bullock v. West Chicago Rapid Transit Co., 23 Chic. Leg. News 148, (Cook Co. Cir. Ct., (1890) ) ; In re Cortland & Homer Horse R. R. Co., 31 Hun 72, (1883); Simmons v. City of To- ledo, 5 Ohio C. C. 124, (1889); Glidden v. Cincinnati, 30 W. L. B. 213, (1893); Stockton v. Atlantic Highlands R. Co., 53 N. J. Eq. 418, (1895). In New York it has been held that only those abutting prop- erty owners who own the fee of the street over which the railway is to be constructed are entitled to an injunction. Peck v. Schenectady Ry. Co., 67 App. Div. (N. Y.) 359, (1901) ; and the owner of property bounded by the exterior line of the street, not owning the fee thereof, is not entitled to an in- junction in the absence of proof that he will have sustained special damage therefrom. Block v. Brooklyn Heights Ry. Co., 32 App. Wv. (N. Y.) 468, (1898). The Illi- nois rule is that the abutter can- not enjoin the construction of a street railway although the re- quired consents have not been ob- tained. "It may be regarded as the settled rule of this state that the owner of an abutting lot can- not prevent the use of a street for a railway. For damage special and peculiar to himself, he has under the constitution and laws of this state a remedy at law." Stewart V. Chicago Gen. St. Ry. Co., 58 111. App. 446, (1895). This case holds that in Illinois the abutting property owners do not own the fee of the street. The street is held by the public authorities in trust for the use of the public. The attorney-general is therefore the proper party to represent the public. See also Klrchman v. West & South Towns St. Ry. Co., 58 111. App. 515, (1895); State v. Lake St. Elec. Ry. Co., 54 111. App. 348, (1894); Tibbetts v. West & South Towns St. Ry. Co., 54 111. App. 180, (1894); Penna. R. R. Co. V. Parkersburg Ry. Co., 26 Pa. Super. Ct. 159, (1904). ^ Harrison v. Mt. Auburn Cable Ry. Co., 17 W. L. B. 265, (1887); Simmons v. City of Toledo, supra; Sommers v. Cincinnati, 8 Am. Law Rec. 612, (1879). But a taxpayer may enjoin if the city solicitor re- fuses to act. Knorr v. Miller, 5 Ohio C. C. 609, (1891). " Linden Land Co. v. Milwaukee Elec. Ry. Co., 107 Wis. 493, (1900). " Bldert v. Long Is. Elec. Ry. Co., 28 App. Div. (N. Y.) 451, (1898). 42 THE LAW OF STREET EAILWATS. [§25- attorney-general.®^ The right to an injimction may be lost by acquiescence or laches.®* § 25. Consent inures to best bidder. — Where the statute requires the consent of the abutting property owners, and also provides that the franchise shall be awarded to the applicant who offers the best terms to the public, or, other things being equal, to the one who offers to carry passengers for the lowest fare, or offers to pay the largest bonus, the consent given to or for the benefit of any one of the applicants inures to the best bidder. Those who sign the consent cannot defeat the object of the statute, or control the action of the council, by limiting their consent to any particular applicant to the exclusion of others.®^ Although the local authorities cannot reject the lowest or best offer, and award the franchise to a competing bidder whose terms are less favorable to the public, they may reject all the bids presented. If they act in good faith the courts will not attempt to control their discretion. The evident purpose of the statute is to secure ''' Hunt, Attorney-General v. Chi- cago Horse & Dummy Ry. Co., 121 111. 668, (1887); Stewart v. Chi- cago Gen. St. Ry. Co., 58 111. App. 446, (1895); People v. Lake St. Elec. Ry. Co., 54 111. App. 348, (1894); West Side St. Ry. Co. v. Barnard, 110 N. Y. 548, (1888); Stockton V. Atlantic Highlands Ry. Co., 5a N. J. Eq. 418, (1895) ; Adee V. Nassau Elec. Ry. Co., 65 App. Div. (N. Y.) 529, (1901). "^Paterson & Passaic R. R. Co. V. Mayer, 24 N. J. Eq. 158, (1873); Heimburg v. Manhattan Ry. Co., 162 N. Y. 358, (1900); Ferguson v. Covington & Cincinnati Elev. Ry. Co., 22 Ky. Law Rep. 371, (1900). "State ex rel. v. Bell, 34 Ohio St. 194, (1877); Mathers v. City of Cincinnati, 3 W. L. B. 551, (1878); Knorr v. Miller, 5 Ohio C. C. 609, (1891). In the absence of a stat- ute it has been held that it is en- tirely discretionary with local au- thorities whether they award the franchise to the highest bidder. Adamson v. Nassau Elec. Ry. Co., 89 Hun 261, (1895). If the public au- thorities, disregarding this provi- sion of the statute, grant the fran- chise to an applicant not entitled thereto, the construction of the road may be restrained by a bill in equity filed by a taxpayer of the city, on refusal of the solicitor to act. Knorr v. Miller, 5 Ohio C. C. 609, (1891). But a court of equity will not entertain an action brought by a municipal corpora- tion to determine questions as to the validity of bids and to award the franchise. Mayor v. Pitch, 9 App. Div. (N. Y.) 452, (1896). As to the constitutionality of statutes requiring franchises to be sold to the highest bidder, see State v. West Side St. Ry., 146 Mo. 155, (1898); Smith v. Indianapolis St. Ry. Co., 158 Ind. 425, (1902), § 26.] RIGHT TO CONSTRUCT EXTENT HOW ACQUIRED. 43 efficient service on the most favorable terms. In one case this object might be attained by accepting the best, or most favorable, of the bids first presented ; while in another better terms might be obtained by a new letting.^® But where it appears that the legislature could not have intended a literal construction of the act, as where the franchise sought is not the subject of bona fide competition, and the route is to be used by one company only, the municipal authorities may make the grant without subjecting the franchise to sale to the highest bidder.''® The sale of a franchise obtained through fraud, collusion or undue influence is void, but the mere fact that the purchaser was in a position by reason of his situation to bid a price higher than another does not invali- date the sale.^"" § 26. Time and manner of receiving bids — Under statutes providing for competitive bids for the franchise, a city council »« Johnson v. West Side St. Ry. Co.. 10 W. L. B. 345, (1883). =* People V. Croycroft, 111 Cal. 544, (1896). In this case the com- pany desired permission to construct its road through the town to con- nect those portions of its road ex- tending upon either side of the town to its opposite termini. Held, that as the builder of the road was the only one that could operate the whole line, the privilege to operate the portion of the line within the town was not the subject of com- petition. In East Louisiana Ry. Co. V. New Orleans, 46 La. Ann. 526, (1894), it was decided that the legislature did not Intend, under the Louisiana statutes, requiring a street railroad franchise to he sold to the highest bidder, to cause a company operating an existing railroad for the carriage of passen- gers and freight entering the city from a distance, to bid for the right of way to extend Its line through the streets farther into the city. In New Orleans C. & L. Ry. Co. v. Wat- kins, 48 La. Ann. 1550, 1559, 1560, (1896), it was said: "We did not de- cide that an existing railroad cor- poration carrying freight and pas- sengers, having its domicile be- yond the city and coming into It, could simply, by reason of those conditions, be authorized under or- dinances of the city to construct a track or tracks from some point inside of Its own line and circling the city, originate a new character of business, inside its limits, and obtain, in and through the ordi- nance new, separate and distinct sources of revenue. Under such circumstances, and to that extent the foreign road would substan- tially be acting under a new fran- chise, not its old one. It is a local franchise, new, separate and dis- tinct from any outside franchise, clearly valuable and for which the public would compete in money, if opportunity so to do were per- mitted." See also, In re Empire City Tr. Co., 4 App. Div. (N. Y.) 103, (1896). 1°" Johnson v. New Orleans, 105 La. 149, (1901); Adamson v. Nas- 44 THE LA-W OF STEEET EAILWAYS. [i2G. may exercise a reasonable discretion as to the time and manner of receiving proposals and in determining the security to be fur- nished by the bidders. The rules adopted to govern the reception of bids must not be repugnant to any statute prescribing the duty of municipal authorities; but the action of the council in granting the franchise to the company which it finds to be the best bidder will not be invalidated because the bid and accom- panying bond of the grantee do not strictly conform to the requirement of the resolution under which the bids were re- ceived. ^"^ The local authorities cannot accept a bid in which the consideration offered is different from that specified in or con- templated by the act.^"^ sau Elec. Ry. Co., 89 Hun 261, (1895). "1 Simmons v. City of Toledo, 5 Oliio C. C. 124, (1891). In this case, after tlie filing of tlie notice of the application for the fran- chise, and after the filing of sev- eral bids therefor, the city council adopted a resolution, In good faith, requiring bids to be filed within a limited time and to be accom- panied by a bond of the bidder to accept the grant and to construct the railroad, if his bid should be accepted. Those who had already filed bids had notice of the reso- lution and time to refile their bids accompanied by the necessary bonds. It was held that the coun- cil might reject any bids not filed within the time required, and not accompanied by the necessary bonds; and that the finding of the council as to who was the lowest bidder and the acceptance of his bid would not be set aside because the bond did not strictly conform to the requirements of the resolu- tion, or because the bid was not in fact the lowest, In the absence of clear proof of error in such find- ing. The purpose of the statute may be accomplished if a reason- able opportunity is given by the council for presenting proposals under which the most favorable terms may be obtained for the public in making the grant. But it is the duty of the council to grant the franchise to such cor- poration or individual as shall offer to carry passengers for the lowest rate of fare, without inquiry into the motives which prompted the proposal. Knorr v. Miller, 25 W. L. B. 128, (1891); s. c. 5 Ohio C. C. 609. The municipal authorities cannot impose conditions in the bond not required by statute. People V. West Side St. Ry. Co., 110 N. Y. 548, (1888). "^Beekman v. Third Ave. Ry. Co., 153 N. Y. 144, (1897). Under a statute of New York authoriz- ing the sale of a franchise to the company agreeing to pay the city the highest percentage of the gross receipts, it was held that the franchise could not be sold for a gross sum of money. It was de- elded in Hart v. Buckner, 54 Fed. Rep. 925, (1892), that the statute of Louisiana requiring that the sale of a street railway franchise be made "to the highest bidder," means the highest bidder in § 27. J EIGHT TO CON^STRtrCT EXTENT HOW ACQUIBED. 45 § 27. Qualifying conditions imposed by property owners — The attempts of property owners to attach to their consent con- ditions relating to details in the construction and operation of the road raise questions which have not been directly passed upon by the higher courts. It has been decided that where the abutting property owner gave his consent upon a promise of personal pe- cuniary consideration the condition cannot be enforced because it is against public policy."^ So where a condition has been attached to the consent, inconsistent with the statute under which the fran- chise is granted, it is void, and the consent remains valid."^"* In a case in Illinois, in which, however, the court found that no conditions had been attached, Mr. Justice Craig plainly intimated that the consent to the laying of the track might have been made to depend on conditions which the council could not have disre- garded.-'"^ But the council is invested with certain powers which it cannot surrender even to the property owners. Its powers are ample, and its duties manifold. Its authority to make contracts, when once exercised, with reference to a particular subject mat- ter, may be fully exhausted ; but its police powers are necessarily continuing. There is no lawful condition which the property owner might suggest, that the council could not impose of its own volition. If a condition which is named in the petition be em- bodied in the ordinance, it derives its force from the action of the council, not from the request of the petitioners. By the terms of moEey, and the sale of the fran- v. North Jersey St. Ry. Co., 70 N. chise is invalid where the grant is J. L. 229, (1904), overruling Id., 65 made to the highest bidder in N. J. L. 328, (1900). "square yards of gravel pavement," "* Forest City Ry. Co. v. Day, 73 52 Fed. Rep. 835, (1892), affirmed. Ohio St. 83, 76 N. E. Rep. 396, In Beekman v. Third Ave. Ry. (1905). In this case it was held Co., 153 N. Y. 144, (1897), the that a condition limiting the con- court held that the council of the sent to a particular corporation or city of New York cannot under individual, Is Inconsistent with the sec. 93 of the Railroad Law make Ohio statute requiring that the a valid sale of more than one ex- franchise be granted to the cor- tension of an existing railway poration or individual that will under one bid, where the exten- carry passengers at the lowest slons are separated from each rate of fare, and was therefore other so that they can only be void, although the consent is good, operated together over the line of '°° People ex rel. v. Chicago West the existing road. Division Ry. Co., 118 111. 113, '"'Montclair Military Academy. (1886). 46 THE LAW OF STREET EAILWATS. [§ 28. their consent, property owners may attempt to determine and fix in advance the gauge and grade of the track, the speed of the cars, the frequency of trips, at what points cars shall stop, the time within which the tracks shall be completed, and other matters which are left by law solely to the discretion of the council. When the consents are not embodied in one paper, it may be found, as it has been in the past, that inconsistent conditions have been attached. If effect must be given to one, it must to all. This is but one of the many embarrassing contingencies which may arise from the attempt to substitute the judgment of the prop- erty owners for that of the council. It is suggested, therefore, as the correct doctrine, that conditions attached can have no legal effect in qualifying the consent of the property owners, and that the failure to adopt them does not invalidate the ordinance. § 28. Consent of public authorities and electors In a num- ber of the states constitutional provisions have been adopted depriving the legislature of the power to grant the right to con- struct and operate street railways in any city, town or village without the consent of the local authorities.''*'* Experience has so clearly demonstrated the advantages of local control and prac- "'' Alabama— 1875. Art. XIV. sec. ities having control of the street 24. No street passenger street rail- or highway proposed to be occupied way shall be constructed within by such street railroad, the limits of any city or town, with- Missouri — 1875. Art. XII, sec. 20. out the consent of the local au- No law shall be passed by the gen- thorities. See also Art. XII, sec. eral assembly, granting the right to 220, Constitution 1901. construct and operate a street rail- Colorado — 1876. Art. XV, sec. 11. road, within any city, town or vil- No street railroad shall be con- lage, or on any public highway, structed within any city, town, or without first requiring the consent incorporated village, without the of the local authorities having con- consent of the local authorities hav- trol of the street or highway pro- ing the control of the street or posed to be occupied by such street highway proposed to be occupied by railroad. And the franchise so such street railroad. granted shall not be transferred Illinois— 1870. Art. XI, sec. 4. without similar assent first ob- No law shall be passed by the gen- tained. eral assembly granting the right to Montana — 1889. Art. XV, sec. 12. construct and operate a street rail- No street or other railroad shall be road within any city, town or in- constructed within any city or corporated village, without requir- town without the consent of the ing the consent of the local author- local authorities having control of § 2 8. J EIGHT TO CONSTEUCT EXTENT HOW ACQTJIEED. 47 tical home rule in the management of such business enterprises, that many of the states, whose constitutions are silent on the sub- ject, have, by statute, invested the local authorities with power to grant or withhold a street railway franchise, and to impose the conditions under which it shall be enjoyed; and in nearly all, if the street or highway proposed to be occupied by such street or other railroad. New York— Readopted in 1889. Art. Ill, sec. 18. No law shall au- thorize the construction or oper- ation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local au- thorities having the control of, that portion of a street or highway, upon which it is proposed to con- struct or operate such railroad, be first obtained; or, in case the con- sent of such property owners can- not be obtained, the general term of the supreme court in the district in which it is proposed to be con- structed may upon application ap- point three commissioners who shall determine after a hearing of all the parties interested, whether such railroad ought to be con- structed or operated, and their de- termination confirmed by the court may be taken in lieu of the con- sent of the property owners. For requirements as to commissioners, see Matter of Nassau Blec. R. R., 6 App. Div. (N. Y.) 141, (1896); Trelford v. Coney Is. R. R. Co., 6 App. Dlv. (N. Y.) 204, (1896) ; Mat- ter of Rapid Tran. Ry. v. Comms., 5 App. Div. (N. Y.) 290, (1896); Underground R. R. of New York v. New York, 116 Fed. Rep. 952, (1902). Nebraska— 1875. Art. XI, sec. 2. No general law shall be passed by the legislature granting the right to construct and operate a street rail- road within any city, town or incor- porated village, without first re- quiring the consent of a majority of the electors thereof. See Lin- coln Ry. Co. V. Lincoln, 61 Neb. 109, (1901). North Dakota— 1889. Art. VII, sec. 129. No law shall be passed by the legislative assembly grant- ing the right to construct and oper- ate a street railroad, telegraph, telephone or electric light plant within any city, town or incorpo- rated village, without requiring the consent of the local authorities having control of the streets or highways proposed to be occupied for such purposes. Pennsylvania— 1874. Art. XVII, sec. 9. No street passenger rail- way shall be constructed within the limits of any city, borough, or township, without the consent of its local authorities, construed in Allegheny v. Millville Ry. Co., 159 Pa. St. 411, (1893). South Dakota — 1889. Art. X, sec. 3. No street passenger railway or telegraph or telephone lines shall be constructed within the limits of any village, town or city, without the consent of its local authorities. Texas — 1875. Art. X, sec. 7. No law shall be passed by the legis- lature granting the right to con- struct and operate a street rail- road within any city, town or vil- lage, or any public highways, with- out first acquiring the consent of the local authorities having con- trol of the streets or highways 48 THE LAW OF STREET EAILWAYS. [§28. not all, of them, the consent must be obtained before the construc- tion of the road is commenced. ^^'^ The "local authorities" whose proposed to be occupied by such street railroad. West Virginia— 1872. Art. XI, Sec. 5. No law shall be passed by the legislature, granting the right to construct and operate a street railroad within any city, town or incorporated village, without re- quiring the consent of the local au- thorities having the control of the street or highway, proposed to be occupied by such street railroad. ""Arkansas has no statute appli- cable to street railways alone; but sec. 5468, Rev. Stat., 1884, requires the consent of the local authorities to be given to the construction of any railroad; and sec. 5471 requires the written consent of the owners of two-thirds in value of the abut- ting property. California — Rev. Stat., sec. 497, as amended in 1891, provides that incorporated cities may grant the use of their streets for street rail- ways, and impose restrictions on their use. Colorado — (1883). Gen. Stat, sec. 30. Follows the constitutional pro- vision. See also Laws of 1885, p. 152, sec. 1, requiring consent of local authorities. Georgia — Laws of 1891, p. 168. Requires the consent of the local authorities. Illinois— Rev. Stat. (1885), p. 1263, sec. 3. For the location of tracks within municipal limits the consent of the municipal authori- ties must be procured, and for such use of roads beyond municipal lim- its the consent of the county board is necessary. Such consent shall not be granted for a longer period than twenty years, and shall be upon such terms and conditions as the public authorities may deem best. The consent shall not be granted unless at least ten days' public notice has been given, and the company must assume liability for all damages to property owners. As to requirements under the stat- ute, see Harvey v. Aurora & G. Ry. Co., 186 111. 283, 57 N. E. Rep. 857, (1900). See also Rev. St. Illinois (1909), Chap. 24, p. 348, Item 90. Indiana — Rev. Stat. (1888), sec. 4154. The consent of the munici- pal authorities is required. As to requirements of consents In Indian- apolis under the charter of March 6, 1891, see Citizens St. Ry. Co. v. City Ry. Co., 64 Fed. Rep. 647, (1894). Iowa— Laws of 1890, p. 19. All cities, including those Incorpo- rated under special charters, shall have power to authorize or to for- bid the construction of street rail- ways within their limits. See Code of Iowa (1897), sec. 767, p. 324. Kentucky — In this state it is usual to insert in the special acts chartering street railways a pro- vision that the right to use the street is subject to the approval and consent of the local author! ties. See acts of 1887-88, pp. 539, 694, 740. Massachusetts — ^Pub. Stat. (1882), p. 643. A street railway cannot be located in any city or town without the consent of the board of alder- men or selectmen. By a subse- quent act Supp. Pub. Stat. (1886), p. 455, it is provided that a cable railway cannot be constructed without the consent of the mayor and board of aldermen of cities and the selectmen of towns, a provision rendered necessary by a clause in § 28.J EIGHT TO CONSTEUGT EXTENT HOW ACQUIRED. 49 consent is made necessary by constitutional and statutory provi- the general act defining the term "street railway" to mean "hors« railway." Michigan — Mich. Ann. Stat. (1882), sec. 3548. Street railways can he constructed only with the consent of the corporate^ authori- ties given by ordinance, and under such rules, regulations and condi- tions as may be prescribed. Missouri — The statutes of this state. Rev. Stat. (1889), sees. 8298, 8300 follow the provision of the constitution. Nebraska — Comp. Laws (1891), sec. 622. Any number of persons may be incorporated for the pur- pose of constructing and operating a street railroad within any city upon procuring the consent of the majority of the electors of such city. When such consent is given, and the company authorized to pro- ceed to construct its railroad, it shall be subject to such rules and regulations as may be established by city ordinance. New Jersey — Supp. to R. S. (1886), pp. 364-5, sec. 8. Street railways cannot be located or constructed without the consent of the common council granted by ordinance. Under the statutes of 1894 (Gen. Stat, p. 3235) and 1896, (P. L. of 1896, p. 329), the consent of both county and township or other local authorities within the territory in which the railway lines are to be constructed, must be obtained, Woodbridge v. Raritan Trac. Co., 64 N. J. Bq. 169, (1902). As to requirements under the statute see Theberath v. Newark, 57 N. J. L. 309, 30 Atl. Rep. 528, (1894); Peo- ples Tr. Co. V. Atlantic City Ry. Co., 71 N. J. L. 134, (1904). In regard to notice of the application for consents required by the stat- ute, see West Jersey Trac. Co. v. Camden Horse Ry. Co., 53 N. J. Eq. 163, 35 Atl. Rep. 49, (1895); West Jersey Trac. Co. v. Cam- den Board of Works, 56 N. J. L. 431, 29 Atl. Rfep. 163, (1894); Moore v. Haddonfield, 62 N. J. L. 386, 41 Atl. Rep. 946, (1898) ; Avon- by-the-sea Land Co. v. Mayor, 32 Atl. Rep. 220, (1895). New York— Rev. Stat. (1889), p. 1811. Follows the constitutional provision. North Carolina — The policy of this state is indicated by its special acts. See laws of 1887, p. 930, authorizing the construction of a street railway in Wilmington, granting the exclusive right for fifty years, but making the fran- chise depend upon the consent of the board of aldermen. Ohio— Gen. Code (1910), sees. 3768, 3769, 9142-9149. Street railways can- not be constructed within, or ex- tended beyond, the limits of a mu- nicipal corporation without the con- sent of its council; but the right to extend the track beyond the limits of an unincorporated village may be acquired from the county commis- sioners. See Cincinnati, Lawrence- ville & Aurora St. Ry. Co. v. North Bend, 70 Ohio St. 46, (1904). Pennsylvania — Laws of 1889, p. 217, sec. 15. Follows the consti- tutional provision. As to require- ments of consents, see Tamaqua & Liansford St. Ry. Co. v. Inter- County St. Ry. Co., 167 Pa. St. 91, (1895); Penna. R. R. Co. v. Montg. Co. Pass. Ry. Co., 167 Pa. St. 62, (1895). South Dakota — Acts of 1890, pp. 68, 69, 70. Municipal authorities may permit, regulate or prohibit the location or construction of any horse railroad in the public streets. 50 THE LAW OF STREET EAILWATS. [§28. sions are thoae public officers whose duties and powers relate to the supervision and care of highways.^"® "Where a street railway alleys or places; but such permis- sion shall not be granted for a longer term than twenty years, nor without the consent of the property owners as required by the constitution. Tennessee — Code (1884), sec. 1921. Street railway companies may consummate contracts with the city authorities for the use of the public streets, provided that no street shall be used by the com- pany until the consent of the city authorities has been first obtained by ordinance prescribing the terms on which the same may be done. If the road is to extend into the country, the consent of the county court must be obtained. As to re- quirements under the Tennessee statutes see Knoxville v. Africa, 77 Fed. Rep. 501, (1896), reversing 70 Fed. Rep. 729, (1895). Washington— Hill's Code (1891), sec. 520. Cities of the first class may authorize or prohibit the loca- tion and construction of street railways, and prescribe the terms and conditions upon which they shall be located and constructed. West Virginia — ^Act of 1901, Chap. 29, sec. 1, construes the con- stitutional provision requiring thirty days' notice for the applica- tion of a franchise. See Benwood V. Wheeling, 53 W. Va. 465, (1903). Wisconsin— Rev. Stat. (1889), p. 1119. Municipal corporations may grant to street railroad companies the right to construct, maintain and operate street railways upon such terms as the proper authori- ties shall determine, upon any streets or bridges within their limits, for the purpose of laying single or double tracks, and run- ning cars thereon for the carriage of freight or passengers. By a sub- sequent act. Laws of 1891, p. 515, it was provided that street rail- ways may be built between towns upon established highways with the written consent of a majority of the supervisors. ^^ Where a turnpike company was maintaining a highway with a bridle path on each side of the roadway, and had given consent to a company to use a portion of the bridle path for its railway, it was held that such consent was not a compliance with the statute, and had no effect except as to the turnpike company, and that the consent of the highway commis- sioners was requisite. In re Rochester Electric Ry. Co., 123 N. Y. 351, (1890); In re Empire City Trac. Co., 4 App. Div. (N. Y.) 103, (1896). The New York statute 1888, sec. 52, provides that a permit must be obtained from the depart- ment of public works before the surface of the street is interfered with. But in Irvine v. Atlantic Ave. Ry. Co., 23 App. Div. (N. Y.) 112, (1897), it was held still necessary to secure the consent of council to construct a switch. A company must secure the consent of the local authorities to operate its line over a road already operating before it can begin proceedings to secure the right to use the road of the other company. Colonial City T. Co. v. Kingston City E. R. Co., 15 App. Div. (N. Y.) 195, (1897). But not where the consent to the construction of the operating road was given on condition that 'other companies could use its tracks. Staten Island Midland Ry. Co. v. § 28.] EIGHT TO CONSTRUCT EXTENT HOW ACQUIEED. 51 is chartered to be constructed from one locality to another the company must obtain the consent of all the local divisions through Staten Island Blec. Ry. Co., 34 App. Div. (N. Y.) 181, (1898). Where a street railway company seeks per- mission to cross a bridge, one half of which lies in one town and one half in another, the consent of the commissioners of highways of both towns is a prerequisite. Wheat- field V. Tonawanda St. Ry. Co., 92 Hun 460, (1895). See also Berks County V. Reading City R. Co., 167 Pa. St. 102, 31 Atl. Rep. 474, (1895). It was held in West Jersey Tr. Co. V. Shivers, 58 N. J. L. 124, (1895), that the consent of the board of public works must be given by ordinance and that a resolution by the board is insuffi- cient. Hoist V. Savannah Elec. Co., 131 Fed. Rep. 931, (1904). In Cali- fornia the mayor of a city has power to approve or veto an or- dinance granting consent to the construction of a street railway in its streets:. Bisenhuth v. Acker- son, 105 Cal. 87, (1894). "Legislative authority of a city" as used in the statutes and con- stitution of the state of Washing- ton means the mayor and council. Benton v. Seattle EQec. Ry. Co., 50 Wash. 156, 96 Pac. Rep. 1033, (1908). "Local authorities" in the constitution and "corporate authori- ties" in the act are synonymous, both being used to indicate those representatives either directly elected by the people or appointed in some mode to which the people had given their consent. Potter v. Calumet Elec. Ry. Co., 158 Fed. Rep. 521, (1908). See Cincinnati v. Co- lumbia & Cincinnati St. Ry. Co., 17 W. L. B. 192, (1886), holding that where a village was incorporated twenty-one years after the consent was obtained from a turnpike com- pany, the consent of the village au- thorities was not required. In Ne- braska consent is obtained by a vote of the electors; and where the question is submitted at a general election, -the proposition fails un- less it receives a majority of the votes of all the electors who cast their ballots at the general elec- tion. State ex rel. Omaha St. Ry. Co. V. Bechel, 22 Neb. 158, (1887); Lincoln R. Co. v. Lincoln, 61 Neb. 109, (1901). If a street railway Is to be con- structed on a turnpike running through a town, it is held in Massachusetts that the consent of the selectmen Is not necessary. District Attorney v. Lynn & Boston Ry. Co., 16 Gray 242, (1860). A company which has failed to obtain the consent of the city can- not enjoin another company subse- quently incorporated from occupy- ing with its railway streets covered by a prior charter. Larimer & Lincoln St. Ry. Co. v. Larimer St. Ry. Co., 137 Pa. St. 533, (1890); Osborne v. Delaware Co. Ry. Co., 9 Pa. Super. Ct. 632, (1899). But a company legally operating in the streets of a city has sufficient prop- erty Interest to maintain an appli- cation to restrain another company from Interfering with its tracks, without authority of law. Atlanta Ry. & P. Co. V. Atlanta Rap. Tr. Co., 113 Ga. 462, 39 S. E. Rep. 12, (1901). As to the necessity of ob- taining the consent of the local au- thorities see also In re Saratoga Electric Ry. Co., 58 Hun 287, (1890) ; Philadelphia v. Lombard & South Sts. R. R. Co., 3 Grant's Cas. 403, (1863). A consent of any 52 THE LAW OF STREET EAILWATS. [§28. which it passes and upon failure to obtain the consent of all, the power to build the road through any division cannot be exer- cised.^"® After the required consents of the local authorities have been obtained by a street railway company to construct its road, it acquires a franchise which is property, and the consents cannot subsequently be withdrawn.^^" Municipal consent can be granted local authority obtained through bribery or threats is invalid, Lehigh Valley Coal & Navigation Co. V. Inter-County Ry. Co., 167 Pa. St. 75, (1895) ; Keogh v. Pitts- ton & Scranton Ry. Co., 195 Pa. St. 131, (1900). Consents are re- quired for elevated roads. In re Kings County Elevated R. R. Co., 105 N. Y. 97, 117, (1887). If the charter requires the con- sent of the municipal authorities and a supplement is silent as to consent, and a second supplement is made subject to the limitations and restrictions and carries with It all the privileges granted by the original charter, the company must obtain the consent of the munici- pal authorities before it can extend its tracks. Philadelphia v. Citi- zens' Pass. Ry. Co., 10 Pa. Co. Ct. Rep. 16, aff. 151 Pa. St. 128, (1892). Where consents have once been re- fused by council, the consents hav- ing been given by abutting property owners, in order to authorize the council to act upon a new applica- tion, it must be accompanied by new consents of the property own- ers. Currie v. Atlantic City, 66 N. J. L. 671, (1901). Conditions im- posed by local authorities may be enforced by mandamus on the ap- plication of a private person who is injured by their violation. Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26, (1899); Potwin Place v. Topeka Ry. Co., 51 Kan. 609, (1893). In England it is unlawful to es- tablish a tram line without obtain- ing parliamentary authority to do so. Such authority may be ob- tained under the act of 1870 through the board of trade, but only by or with the consent of the local authorities, 1. e., of the cor- poration of the city of London, of the metropolitan board of works elsewhere in the metropolis, of the sanitary authority in any suburban sanitary district, and in other places of the parish vestry. Glen on Highways, p. 927. For delega- tion of power to municipal authori- ties, see sec. 13, ante. "" Penna. R. R. v. Montg. Co. Pass. Ry. Co., 167 Pa. St. 62, (1895); Penna. R. R. v. Greensburg, J. & P. St. Ry. Co., 176 Pa. St. 559, (1896); Hannum v. Media, M. A. & C, Elec. Ry. Co., 200 Pa. St. 44, (1901); Penna. R. R. v. Parkersburg Ry., 26 Pa. Super. Ct, 159, (1904). But in Geneva & W. Ry. Co. v. New York C. & H. R. R. Co., 163 N. Y. 228, (1900), where a company whose lines extended through several sepa- rately constituted local divisions de- sired to cross the tracks of a steam railroad in one of the divisions, it was held that it was necessary to obtain the consent only of the authorities of the locality in which the crossing was located See also Wheatfleld v. Tonawanda St. Ry. Co., 92 Hun 460, (1895). ""Coney Island F. H. & B. Ry. Co. V. Kennedy, 15 App. Div. (N. Y.) 588, (1897); Brooklyn Heights § 29. j EIGHT TO CONSTRtrCT- -EXTENT HOW ACQUIEED. 53 only in conformity to the provisions of the charter and in accord with its terms, and a city can grant no franchise on any street except such as are therein authorized. ^'^^ § 29. Conditions attached by public authorities — limitations on the power — A municipality whose consent is necessary to the construction of a street railway upon a public street, may impose such reasonable conditions,^^^ precedent or subsequent, on the enjoyment of the franchise as it may deem necessary or proper,-'-'^ Ry. Co. V. Brooklyn, 18 N. Y. Supp. 876, (1892). See also Currie v. At- lantic City, 66 N. J. L. 671, (1901); Athens v. Sayre Boro., 156 Pa. St. 23, 28, (1893). It was decided in Plymouth Borough v. Plymouth St. Ry. Co., 10 Kulp (Pa.) 308, (1901), that where a street railway track was laid upon the roads of a town- ship without the consent of the au- thorities, but with their knowledge and acquiescence, they cannot afterwards demand that the track shall be torn up, or its use en- joined. '" The consent of the authorities of a city is not a condition prece- dent to the granting of a charter to a street railway company. The con- sent of such authorities is under the constitution simply a condition pre- cedent to the exercise by the company of the charter power to construct a railway upon the streets of the city. Citizens St. Ry. Co. V. Africa, 100 Tenn. 26, (1897). The consent of local authorities must be specific and relate to a definite route designated in the ap- plication or the charter of the com- pany. Knoxville v. Africa, 77 Fed. Rep. 501, (1896); Kennelly v. Mayor, 30 Atl. Rep. 531, (1894). A provision of a company's charter that it shall not lay its rails in or along any street without first obtaining the permission of the common council confers a privilege on the city, which it may waive or to which an implied assent may be given by acquiescence, and the failure to obtain such con- sent does not alone render the construction of the track altogether illegal. North Jersey St. Ry. Co. V. Commissioners, 73 N. J. Eq. 106, 67 Atl. Rep. 691, (1907); State v. Citizens Ry. Co., 80 Neb. 357, 114 N. W. Rep. 429, (1907). "^ The power of municipal au- thorities to prescribe regulations is not unlimited, and whether in any given case, where the facts are undisputed, a council exceeded its power by the enactment of an unreasonable ordinance is a judi- cial question to be considered sub- stantially the same as a question whether the legislature has ex- ceeded its constitutional authority. Eastern Wisconsin Ry. Co. v. Hackett, 135 "Wis. 464, 115 N. W. Rep. 376, (1908). lis "The municipal authorities have the absolute power to grant or with- hold their consent to the construc- tion of street railways, and they may Impose any conditions, however onerous and difficult to perform, which seem to them in the exer else of their discretion to be proper, as the terms upon which their consent will be given." Peo- ple ex rel. West Side St. Ry. Co. v. 54 THE LAW OF STREET EAILWAYS. [§29. providing it does not exceed its constitutional or statutory power. ^^* But no condition may be imposed which destroys or Barnard, 110 N. Y. 548; revsg. 48 Hun 57, 18 N. E. Rep. 354, (1888). A street railway company having accepted a franchise upon the con- ditions specified in the ordinance is estopped from saying that the terms are not reasonable. Kansas City V. Kansas City Ry. Co., 187 Mo. 146, 86 S. W. Rep. 190, (1905). See Dillon on Municipal Corpora- tions (4th Ed.), vol. 2, sec. 706; Elliott on Railroads (2d Ed.), vol. 3, sec. 1081; Allegheny v. Millville E. & S. St. Ry. Co., 159 Pa. St. 411, (1893); St. Louis & M. R. Ry. Co. V. Kirkwood, 159 Mo. 239, (1900). The right to consent to the use of the streets for street railway purposes embraces necessarily the right to consent conditionally — to consent with limitations, restric- tions, and reservations. Mercan- tile T. & D. Co. V. Collins Park & B. Ry. Co., 101 Fed. Rep. 347, (1900); Byrne v. Chicago Gen. Ry. Co., 169 111. 75, (1897); Citizens H. Ry. Co. V. Belleville, 47 111. App. 388, (1892) ; Detroit v. Detroit City Ry. Co., 37 Mich. 558, (1887). '" Conditions which are for the public benefit, which are proper in character, and which are not prohibited either actually or explicitly are properly exacted. Gaedeke v. Staten Is. M. Ry. Co., 43 App. Div. (N. Y.) 514,528, (1899). In People v. Willcox, 118 N. Y. Supp. 248, (1909), it was held that the constitution of New York (sec. 18, Art. Ill) limits the power of the legislature to grant a franchise by requiring the consent of local authorities. The act creating a public service commission (Laws 1907, Chap. 429) provides inter alia (sec. 53) that no street railway company shall begin con- struction or exercise any fran- chise without obtaining permission of the commission, nor until after it shall determine that such exercise of the franchise is "necesary or convenient for the public service." Certain conditions to the consent were imposed by the city which did not meet the approval of the commissioners and the application for permission to exercise the franchise was denied, although the commission found that such exer- cise would be for the "great bene- fit of the community." The court held (Ingraham J.) : "It is quite clear that the legislature did not intend to, as it could not, substi- tute the public service commis- sion for the local authorities. The consent of the local authorities was still necessary before the grant of a franchise could be com- plete. They had power to impose such conditions as the Interest of the municipality required. With such conditions for the exercise of the franchise the public service commis- sion had no concern. It could not de- mand that the local authorities add to or take from the conditions upon which they were willing to con- sent. The state, however, had the power to say that no franchise should be acquired or exercised unless it became necessary or con- venient for the public service." The proceedings were remitted to the commission with direction to grant the application. See also Macon Consolidated St. Ry. Co. v. Macon, 112 Ga. 782, (1900); Los Angeles Ry. Co. v. Los Angeles, § 29. J EIGHT TO CONSTRUCT EXTENT HOW ACQUIRED. 55 limits the exercise by the municipality of its police power/^'' or which violates some controlling and paramount principle of public policy.^" If they relate to matters over which the legislature has entire control, or which it has committed to other public office;rs, the action of the legislature, or of the ofEcers to whom it has delegated full authority, cannot be superseded or affected by that of the common council or any board or municipal officer. ■'■''^ But the fact that the constitution prescribes conditions upon which street railroads may be constructed does not prevent the legislature from imposing conditions other than those prescribed by the fundamental law; and where conditions are imposed* by statute, the local authorities may add others which are not repug- nant to constitutional or statutory provisions relating to the same general subject.''^* When the statute requires the submission of a 152 Cal. 765, 92 Pac. Rep. 490, (1908). "^Brooklyn v. Nassau Elec. Ry. Co., 20 App. Div. (N. Y.) 31, (1897) ; McKeesport v. McKeesport & R. Pass. Ry. Co., 2 Pa. Super. Ct. 242, (1896). ""Allegheny v. Millville E. & S. Ry. Co., 159 Pa. St. 411, (1893); Murphy v. Worcester Consolidated St. Ry. Co., 199 Mass. 279, 85 N. E. Rep. 507, (1908). "'In re Kings Co. Elevated R. R. Co., 105 N. Y. 97, (1887). Among the conditions imposed by the com- mon council was one that the com- pany should consent that the city assessors might arbitrate all dam- ages caused to property owners by the construction of the road, and one fixing the times within which different portions of the road should be constructed different from that prescribed by the com- missioners. The New York court of appeals held that these condi- tions were neither reasonable nor lawful, as they related to matters over which the legislature and the commissioners had entire control, snd were repugnant to the legisla- tive requirements in the one case, and to the conditions imposed by the commissioners in the other, and that their action could not be superseded or vacated by that of any other ofiScial body. See Farrell V. Winchester Ave. R. R. Co., 61 Conn. 127, (1891). A city ordi- nance requiring street railway com- panies to apply for a permit be- fore entering upon and obstructing the streets and requiring the ap- plicant to file specifications as to the work to be done and fix the location thereof, and requiring a bond to hold the city harmless from any damage caused by the work, and giving the city power to refuse or grant permits, is not in- valid as interfering with the fran- chise rights of the company in the streets. State v. Frost, 78 Neb. 325, 110 N. W. Rep. 986, (1907). For various conditions which may be Imposed by ordinance, see Chap. VIII. "»In re Thirty-Fourth St. R. R. Co., 102 N. Y. 343, (1888). The New York Street Surface Railway Act of 1884, Chap. 252, sec. 14, im- posed as a condition of the right 56 THE LAW OF STEEET EAILWATS. [§30. plan of construction and equipment to the municipal authorities, they can modify the same providing they do not deprive the plan of its "essential qualities" or impose other conditions which are whoUy foreign to it.^^® Municipal authorities may limit the exer- cise within the municipality of the grant to a street railway com- pany by consenting to a part only of the powers conferred by its charter. ^^^ Although the local authorities may impose reasonable and lawful regulations and conditions at the time of making the grant, after the grant has been made and accepted ro further con- ditions or regulations can be imposed without the fconsent of the grantee.^^^ § 30. Special conditions — precedent and subsequent, — Various conditions precedent, i. e., those upon the fulfillment of which depends the maturing of the grant, may be attached thereto and enforced against the company by the local authorities relating to the time within which tracks shall be constructed and the road put to construct, extend or operate a street railway in any street in which another street railway had been lawfully constructed, that the consent of the first company should be obtained. This was held not to be a delegation of the legis- lative power to the company whose consent was required, and not in- valid because such conditions were not prescribed in the constitution. See also People v. Willcox, 118 N. Y. Supp. 248, (1909) ; People v. Chi- cago West Division Ry. Co., 118 111. 113, (1886). "'Central Ry. & Elec. Co.'s Ap- peal, 67 Conn. 197, 210, (1896); Fair Haven & Westville Ry. Co. v. New Haven, 74 Conn. 102, (1901). ""Allegheny v. Millville E. & S. Ry. Co., 159 Pa. St. 411, (1893). In St. Louis & Meramec River R. Co. V. Kirkwood, 159 Mo. 239, (1900), it was held that where the company had power under its char- ter to carry both passengers and freight the municipality may im- pose as a condition of its consent that the company occupy its streets only as a carrier of pas- sengers. In Chicago & S. S. R. T. Co. V. Northern Trust Co., 90 111. App. 460, 483, (1899), it was held that a condition imposed by the city that the consent granted should never authorize any other railway company to use the franchise of the former did not limit the fran- chise, but only the exercise thereof within the municipality by the original grantee. '^'Electric Ry. Co. v. City of Grand Rapids, 84 Mich. 257, 47 N. W. Rep. 567, (1891). This subject is discussed at length in Chaps. II, VIII, IX, X. Where the reasonable- ness of restrictions Imposed in granting a location to a street rail- way are questioned in an action, only their validity at the time they were originally imposed is to be considered. Murphy v. Worcester Consol. St. Ry. Co., 199 Mass. 279, 85 N. E. Rep. 507, (1908J. § 31. J EIGHT TO COSrSTKUOT EXTENT- -HOW ACQTJIEED. 57 into operation, to the character of the road, and to other matters which are the proper subject of contract in fixing the mutual rights and liabilities of the parties.^^^ Numerous cases have been decided where forfeitures have been enforced for failure to com- plete the road according to contract.^^^ Among the conditions sub- sequent, i. e., those imposed that affect the manner of operating the road, and its repair after its construction,^^* are those which relate to the character of the service ;^^^ the paving and repair of streets ;^^® the frequency within which cars shall be run;^^'' the regulation of fares ;^^® the payment of license fees;^^® and the payment of a percentage of the gross profits to the eity.'^^" The performance of the conditions of consent may be enforced by mandamus.^^^ § 31. Acceptance of charter or franchise The acceptance of a franchise for the use of public streets is usually evidenced by the filing with the proper ofiicer or board of a formal statement which in express terms accepts the privileges granted. But unless "''Cooper V. Second & Third St. Pass. R. R. Co., 3 Phila. 262, (1858), in which the defendant company was enjoined from operating its line on certain streets until it had pur- chased the stock of horses, omni- buses, sleighs and harness owned and used on a part of the street railway route; Moore v. Green & Coates St. Pass. R. R. Co., 3 Phila. 210, (1858); Green & Coates St. Pass. R. R. Co. V. Moore, 64 Pa. St. 79, (1870); Moore v. Green & Coates St. Pass. R. R. Co., 3 Phila. 417, (1859) ; Deschamps v. Second & Third St. Pass. R. R. Co., 3 Phila. 279, (1858). See Athens S. & W. Elec. Ry. Co. v. Sayre Boro, 156 Pa. St. 23, (1893), as to requirement that road should be laid on grades given by the city, and that all dam- ages done to abutters, caused by the grading, shall be paid by the com- pany. See May v. Carbondale Trac. Co., 167 Pa. St., 343, (1895) ; South- ern Ry. Co. V. Memphis, 97 Fed. Rep. 819, (1900); Strickford v. Bos- ton & M. R. R. Co., 73 N. H. 81, 59 Atl. Rep. 367, (1904). ™ For which see Chap. II. ^ Citizens Horse Ry. Co. v. Belle- ville, 47 111. App. 407, (1892). "° Central Ry. & Elec. Co.'s Ap- peal, 67 Conn. 197, (1896). ""Kansas City v. Kansas City Belt Ry. Co., 187 Mo. 146, (1904). See Chap. IX. ^'"^ Citizens Horse Ry. Co. v. Belle- ville, 47 111. App. 407, (1892). See Chap. VIII, sec. 234. "'Gaedeke v. Staten Island M. Ry. Co., 43 App. Div. (N. Y.) 514, (1899). See Chap. VIII, sees. 232 and 233. 129 Byrne v. Chicago General Ry. Co., 63 111. App. 438, (1896). See Chap. X, sees. 279 and 283. ""Allegheny v. Millville B. & S. Ry. Co., 159 Pa. St. 411, (1893). "ipotwin V. Topeka Ry. Co., 51 58 THE LAW OF STEEET EAILWAYS. [§31. othei-wise provided by statute or ordinance the acceptance either of the charter or of the franchise need not be made in "writing or by any express declaration; it will be equally valid and binding if it consists of acts only whereby the company accepts the privileges conferred. -"^^ It is suiBcient if the acts of the company show an actual practical acceptance by it.-^^^ A previous request for a gTant has been held equivalent to a subsequent acceptance. -^^^ The acceptance of a charter or a franchise, to be valid, must be in toto, and in accordance with the terms of the grant. ■'^^ If a written acceptance of a franchise is required and filed, it is not rendered insufficient by a declaration in the instrument of accept- ance that the company waives none of its vested rights under its charter.-'^® Although the company may assume the obligations prescribed by ordinance by acts alone, under ordinary circum- stances its mere silence will not be held to indicate that it has accepted or consented to the provisions of an ordinance which in terms confers upon it rights and privileges not included in its charter, or imposes upon it new burdens. -"^^^ The acceptance is Kas. 609, 615, 33 Pac. Rep. 309, 56 Am. & Eng. R. Gas. 549, (1893); Merrill on Mandamus, sees. 157-59. ""Redfield on Railways (6tliEd.), p. 61. "» City Ry. Co. v. Citizens St. Ry. Co., 166 U. S. 557, (1897), in which it was decided that an acceptance of an amendment to the franchise may be presumed from the fact that it was beneficial to the company. See United States v. Danridge, 12 Wheat, 64, 70, (1827) ; Charles River Bridge v. Warren Bridge, 7 Pick. 344, (1829); Com. v. Cullen, 13 Pa. St. 133. 140, (1850); Bangor, Old Town & Milford Ry. Co. v. Smith, 47 Me. 34, (1859). As to acceptance of amendments to the franchise, see sec. 40. >»* City Ry. Co. v. Citizens St. Ry. Co., supra; Atlanta v. Gate City Gas Light Co., 71 Ga. 106, (1883) ; I Morawetz on Corporations, sec. 23; Illinois River Ry. Co. v. Zimmer, ?0 111. 654, (1858); Lincoln & Kenne- bec Bank v. Richardson, 1 Me. 79, (1820); State v. Dawson, 22 Ind. 272, (1864) ; Newton v. Carberry, 5 Cranch (Cir. Ct.) 632, (1840); Per- kins V. Sanders, 56 Miss. 733, 739, (1879). ^^ A franchise to operate a rail- road between two given points is not satisfied by the construction and operation of a portion of such line and a complete abandonment of the remainder. Brooklyn & R. B. Ry. Co. v Long Island Ry. Co., 72 App. Dlv. (N. Y.) 496, (1902). See also Collins v. Amsterdam St. Ry. Co., 76 App. Div. (N. Y.) 249, (1902); Matter of Metropolitan Transit Co., Ill N. Y. 588, (1889), Matter of Buffalo Traction Co., 25 App. Div. (N. Y.) 447, (1898). ""Trenton v. Trenton Horse R. R. Co., 19 Atl. Rep. 263, (1890). "'Western Paving & Supply Co. V. Citizens' St. Ry. Co., 128 Ind. 525^ § 32. J EIGHT TO OONSTEtrCT EXTENT HOW ACQUIRED. 59 binding ii,pon the company only wlien made by its duly author- ized officers.-'^* The rights and powers of a private corporation can be conferred only by grant made directly to it. Hence, if a grant is made to individuals who accept the grant for the benefit of a corporation to be organized and who subsequently incorporate, the corporation does not thereby acquire the privileges previously conferred upon the incorporators. "^^^ § 32. Proof of the contract between the public and the private corporation — The relative rights, duties and liabilities of the public corporation and the grantee of a street franchise are usually expressed in an ordinance, resolution or other written in- strument, to which courts must look for evidence of the obliga- 10 L. R. A. 770, 26 N. E. Rep. 188, (1891). ^A receiver has no power to ac- cept new privileges which inure to the benefit o£ the purchasers of the company's property; and an injunc- tion may be allowed to restrain the city council from extending the franchise to additional streets, thereby giving colorable authority for occupying them for street rail- way purposes. Negus v. City of Brooklyn, 10 Abbott N. C. 180, (1881). "° People's R. R. Co. v. Memphis R. R. Co., 10 Wall. 38, (1869). The city of Memphis invited bids for con- structing a street railroad. Bids were made by an unincorporated com- pany and accepted by the city, with a modification which the company agreed to accept, expressing its readiness to sign a contract em- bodying the terms and conditions exacted by the city The com- munication was referred to a com- mittee of the city council, but no formal contract was ever signed. At this point the city council passed a resolution giving permission to the members of the unincorporated company to have themselves incor- porated, which was accordingly done. The charter of the private corporation authorized it to com- plete all agreements entered into with the city for the use of its streets, and to operate a street rail- way therein with the consent of the city. The company in its char- tered form expressed to the city its readiness to execute the proposed contract. Opposition having been made by the citizens to the con- struction of the proposed railway, the city council resolved to recede from its project. It was held that there was no perfected contract be- tween the city and the unincorpo- rated company; and that if there had been there was no evidence that the city had accepted the in- corporated company in place of the unincorporated company. Individuals who accept a grant for the benefit of a corporation to be organized, and afterwards incor- porate, holding out the idea that the corporation owns the franchise, cannot exact a consideration for the formal transfer of the grant, and vote as directors of the corporation to themselves as nominal owners the whole capital stock for the priv- 60 THE LAW OF STEEET EAILWAYS. [§32. tions assumed by the parties. If such an instrument is manifestly incomplete, the actual consideration for the grant may be shown even by parol; but, as a general rule, if acts that either party agrees to perform are expressly and specifically set forth and the contract is apparently full and complete, no other act to be done, as an additional consideration, can be shown by parol, except in case of fraud or mistake."" ilege obtained from the city. Cole- man V. Second Ave. R. R. Co., 48 Barb. 371. (1867). "°A city council having granted to the purchaser of a street railway the privileges and franchises belong- ing to the former company, in con- sideration of which the new com- pany assumed all the duties and obligations resting on the former company, it cannot be shown by parol that a part of the considera- tion for granting such privileges to the new company was its promise to assume the burdens of an ordi- nance not assented to by the former company. Western Paving & Sup- ply Co. V. Citizens' St. Ry. Co., 128 Ind. 525, 10 L. R. A. 770, 26 N. E. Rep. 188, (1891). OHAPTEE II. CONSTRUCTION, AMENDMENT, REVOCATION, FORFEITURE AND RENEWAL OF THE CHARTER AND FRANCHISE. § 33. The charter — how construed. 34. Construction of the charter further considered. 35. Amendment of city charter — effect on prior municipal grant. 36. Power of the legislature to amend the company's char- ter. 37. Further limitations on the power of amendment. 38. Effect of amendment on the liahility of stockholders. 39. Power of the legislature to sus- pend and revoke the charter or franchise. 40. Municipal authorities — power to amend and withdraw the franchise or impose new ob- ligations. 41. Release of the company from its obligations. § 42. Temporary suspension of com- pany's business by city pending local improve- ments. 43. Expiration, renewal and ex- tension of franchise. 44. Existence of franchise, how and by whom questioned. 45. Forfeiture — general principles governing it. 46. Forfeiture declared by statute. 47. Failure to lay tracks within the time prescribed. 48. How time should be computed. 49. The right of forfeiture — ^how and by whom enforced. 50. Who may waive the forfeiture and how waiver may be ex- pressed. 51. Non-user — abandonment. 52. Misuser of the franchise — failure to construct and op- erate in the manner re- quired by charter. § 33. The charter— how construed — The provisions of the charter of every private corporation, unless they are clear, unam- biguous and free from doubt, are subject to construction ; and their true intent and meaning must be ascertained by the same rules of interpretation as other legislative grants. "While it is well settled that a charter is a contract under which vested rights will be pro- tected, nevertheless, under a rule now almost universally applied, nothing is held to pass but that which is granted in clear and explicit terms. In accordance with this principle, words and phrases in statutes conferring franchises on corporations must receive that interpretation which is most favorable to the public.^ 'People V. Broadway R. R. Co., of Brooklyn, 126 N. Y. 29, (1891), reversing 56 Hun 45; McFarland v. Orange & Newark Horse Car R. R. 61 62 THE LAW OF STREET EAILWATS. [§33. N^otwithstanding this rule, conduct whicli is claimed to consti- tute a forfeiture of corporate rights and franchises should receive Co., 13 N. J. Eq. 17, (1860); West End & Atlanta St. R. R. Co. v. Atlanta St. R. R. Co., 49 Ga. 151, (1873) ; Ruggles v. Illinois, 108 U. S. 526, (1883) ; Rice v. Railroad Co., 1 Black 358, 380, (1861) ; New Orleans & Carrollton R. R. Co. v. New Orleans 34 La. Ann. 429, (1882); People ex rel. Third Ave. R. R. Co. V. Newton, 112 N. Y. 396, (1889). But the application of the doctrine to the facts involved in the last case was rejected by the same court in In re Third Ave. R. R. Co., 121 N. Y. 536, (1890), for which see note to sec. 37, post. Grants of franchises by public corporations are to be strictly construed, and no exclu- sive privileges pass unless by ex- press words or necessary implicar tion. Citizens' St. Ry. Co. v. Jones, 34 Fed. Rep. 579, (Ark., 1888); North Eastern R. R. Co. v. Payne, 8 Rich. Law Repts. 177, (1855). The doctrine is firmly established that only that which is granted in clear and explicit terms passes in a grant of property, franchises or privileges, in which the government or the public has an interest. Statutory grants of that character are to be construed in favor of the public, and whatever is not unequivocally granted is withheld; nothing passes by implication. Coosaw Mining Co. v. State of South Carolina, 144 U. S. 550, (1892). The rule of strict con- struction in favor of the public is stated by Gordon, J., in Pennsyl- vania R. R. Co. V. Philadelphia Belt Line R. R. Co., 10 Pa. C. C. Rep. 625, 632, affirmed in 149 Pa. St. 218, (1892), as follows: "If language means anything, and if almost wearying reiteration in un- numbered cases can be regarded as establishing a principle, then, one doctrine must be taken as set- tled, and that is, that the corporate grant against a public right is to be strictly construed in favor of the public. Judge Black summarized this doctrine in a pregnant and forcible sentence when he said that there was no such thing as a doubt- ful charter, meaning that, if the charter was doubtful, it was no charter at all. This doctrine has never been surrendered by the courts or even modified. In every case, without exception, in which it has been called in question, it has been reasserted and emphasized and the decisions most favorable to liberal interpretation of corporate grants have laboriously sought to discriminate the particular facts of each case from conflict with the admitted principle. If the courts have erred in any case in applying the doctrine to the facts they have at least never perverted the current of judicial decision, or obliterated the doctrinal landmarks." St. Louis & Meramec River R. R. v. City of Kirkwood, 159 Mo. 239, 255, (1900) : "As the franchise granted by the town of Kirkwood to plaintiff was simply 'for the transportation of passengers,' the grant must be con- strued in favor of the public and against the railroad company and this enumeration excluded the transportation of freight." Per Gantt, C. J. A contract between a horse rail- way company, operating on the roadbed of a turnpike company, and the turnpike company, providing for the compensation of the turn- pike company for the increased bur- den imposed on its property because 8 31. j CIIAETEE COXSTEUCTION, FOKFEITUKEj RENEWAL. 03 a charitable and liberal construction, like any other conduct tend- ing to penal consequences.^ § 34. Construction of the charter further considered. — The power of the corporation must be deemed to extend to the com- pletion of legitimate corporate acts and whatsoever may be Avithin the scope of the legislative grant.^ A statute passed subsequent to a grant of a charter should be construed so as not to injuriously affect existing rights, but to harmonize its objects with the preser- vation and enjoyment of all such rights.* If a public corporation is authorized by a general grant to exercise a franchise or to carry on a business, and the grant contains no words either defin- ing or limiting the powers which the corporation may exercise, it will take by implication all such powers as are reasonable and necessary to enable it to accomplish the purposes of its creation.® But it will take nothing by implication iinless such implication is necessary for the purpose of giving effect to powers expressly granted.® of the change of motive power to electricity, is not ultra vires, and the turnpike company can recover. Little Saw Mill Valley Turnpike v. Federal St. Pass. Ry. Co., 194 Pa. St. 144, 45 Atl. Rep. 66, (1899). See also New York v. New York City Ry. Co., 110 N. Y. Supp. 720, 126 App. Div. (N. Y.) 36, (1908); Cleve- land Elec. Ry. Co. v. Cleveland, 204 V. S. 116, 51 L. Ed. 399, (1907); Columbus Ry. Co. v. City of Co- lumbus, 43 Ind. App. 265, 86 N. B. Rep. 83, (1908). 'People V. Broadway R. R. Co., 126 N. Y. 29, 37, (1891); Chicago City Ry. Co. v. People, 73 111. 541, (1874); People v. Atlantic Ave. R. R. Co., 125 N. Y. 513, (1891). "In re Union Elevated R. R. Co., 113 N. Y. 275, (1889). * Suburban Rapid Transit Co. v. Mayor, 128 N. Y. 510, (1891). ' Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 380, 20 Atl. Rep. 859, (1890). " City of St. Louis v. Missouri R. R. Co., 13 Mo. App. 524, (1883). Illustrations — the words "to" and "from" a place or city are con- strued to mean to or from a point within the place to or from which a corporation is authorized to con- struct a railroad. Authority to con- struct and operate a railroad from the city of Chicago to any point in the town of Evanston, has been held to authorize the location or operation of the road from any point within the city of Chicago. Attorney-General v. Chicago & Evanston R. R. Co., 112 111. 611, (1884). To the same effect, West Pennsylvania Co.'s Appeal, 99 Pa. St. 155, (1881) ; Moses v. Pitts- burgh, Ft. Wayne & Chicago R. R. Co., 21 111. 516, (1859); Mason v. Brooklyn City & Newton R. R. Co., 35 Barb. 373, (1861). The charter of the Orange & Newark Horse R. R. Co. contained the following clause: "The presi- 64 THE LAW OI- STREET EAILWAYS. [§35. § 35. Amendment of city charter — effect on prior miuiicipal grant. — ^A railway company may accept the provisions of a city charter which went into effect after the incorporation of the com- dent and directors of said company be and they are hereby authorized and Invested with all the rights and powers necessary and expedi- ent to survey, lay out, and con- struct a railroad from some suit- able point in the township of Orange, In the county of Essex, to some suitable point In Orange street, or some street north of said street, or south of Market street, In the city of Newark." It was held that this enactment related not to the route, but to the termi- nation of the road, and that thereby the route of the company was not excluded from being located In and through Market street. McFarland v. Orange & Newark Horse Car R. R. Co., 13 N. J. Eq. 17, (1860). A turnpike company was, by an act of the legislature, empowered to make roads from Troy "to the city of Hudson." It was held that the words were to have a reasonable construction in reference to the subject matter, and the purpose of the grant, which was to open a good road to the compact part of the city of Hudson; and that such road did not terminate at the north bounds or charter limits of the city of Hudson, several miles from the compact parts of the city. Farm- ers' Turnpike Road v. Coventry, 10 John. 389, (1813). See also Mohawk Bridge Co. v. Utica & Schenectady R. R. Co., 6 Paige Ch. 554, (1837). Contra: Northeast- ern R. R. Co. V. Paine, 8 Rich. Law Repts. 117, (1855). An ordinance providing that: "Cars traveling in the same track shall not approach each other within a distance of three hundred feet except in case of accident, when it may be neces- sary to connect two cars together, and also except at stations," was held to apply only to cars going in the same direction and traveling separately, and not to cars which were attached. Bishop v. Union R. R. Co., 14 R. I. 314, (1884). Under a proviso in a city ordinance grant- ing certain privileges to a rail- road company, that such company should be subject to all laws and ordinances that might thereafter be passed to regulate railroads in the city, the only laws to which the company is subject are reasonable and legal ordinances for the regu- lation of the road. It will not be construed to mean that the rail- road company should abandon or take up or remove its tracks at the bidding of the council. Chicago, Rock Island & Pacific R. R. Co. v. City of Jollet, 79 111. 25, (1875). An ordinance giving a railroad company license to construct its track across and along the streets and alleys of a city, upon the con- dition that it shall permit other companies, not exceeding two in number, to use its main track, upon such fair and equitable terms as may be agreed upon, will not be construed as prohibiting the com- pany from leasing the use of its tracks in the city to more than two companies. Such a provision is a limitation, not upon the right of the company to admit other com- panies to a joint use of its tracks, but upon the exclusive enjoyment of the estate granted by the city. Chicago V. Chicago & West Indiana R. R. Co., 100 111. 112, (1881). The provision of an ordinance authoriz- § 35. J CHAETEK COWSTETICTIOW, FORFEITURE^ EEKEWAL. 65 pany, and the acceptance will be as binding on the company as if it had acquired its own charter subsequent to the adoption of the city charter^ The legislature may by general act alter or amend charters of mimicipal corporations whether granted by general or special act ; and such alterations will affect and control their powers -ndth reference to corporate franchises previously granted.® And if a municipal corporation, acting without stat- utory authority, assumes the right to grant a franchise for the ing a company to construct its road, '■'on, oyer, and along" certain al- leys does not authorize the con- struction of tracks by the side of the alleys mentioned. Heath v. Des Moines & St. Louis R. R. Co., 61 Iowa 11, (1883). When a stat- ute authorizes a municipal corpo- ration to contract "for the purpose of providing street railroads" and conferring "for the length of time which may be agreed upon, the ex- clusive privilege to use the streets and alleys of such city for such purpose," it is the actual use of the streets for the purpose which con- fers the exclusive privilege, and the exclusive right to use the same attaches only when the use or its equivalent begins, and the city has no power under such a grant to devolve on any contractor the duties it owes to the public in determining when and upon what street the public convenience re- quires a line of road. Citizens' St. Ry. Co. V. Jones, 34 Fed. Rep. 579, (Ark., 1888). A charter to construct a railway on two streets between another street and road does not authorize the company to lay its track on the street or road be- tween which it is authorized to be laid, the word "between" excluding the termini. Trenton Horse Ry. Co. V. Trenton, 11 L. R. A. 410, (1890). Under a charter granting a right of way "subject to the ap- proval of the city council for each 5 route selected, first had and ob- tained, before the work thereon shall be commenced," it was held that the grant was limited and re- stricted to each route that might be selected, which should be approved by the city council. "West End & Atlanta R. R. Co. v. Atlanta St. R. R. Co., 49 Ga. 151, (1873). A pro- vision in a charter authorizing a company to construct and main- tain its tracks "upon and over such streets" in the city, "except" in certain streets therein mentioned, "as shall from time to time be fixed and determined by the city coun- cil," is not to be construed to pre- vent the company from laying its tracks across one of the excepted streets. State v. Newport St. Ry. Co., 16 R. I. 533, 18 Atl. Rep. 161, (1889). ' Union Depot R. R. Co. v. South- ern Ry. Co., 105 Mo. 562, (1891); St. Louis R. R. Co. v. Southern Ry. Co., 105 Mo. 577, (1891); Union R. R. Co. V. Southern Ry. Co., 105 Mo. 602, (1891). ' Eichels v. Evansville St. Ry. Co., 78 Ind. 261, (1881). The city was chartered by special act, which conferred no power to grant street railway franchises. It was con- tended that this, being a general law, could not have the effect of amending the special charter of the city. But the court ruled other- wise. See also Dillon on Mun. Corp. (4th Ed.), sec. 87. 66 THE LAW OF STKEET EAILWAYS. L§35. use of its streets and enters into a contract by ordinance fixing the terms and conditions tinder which the right may be exercised, the grant is taken subject to the power of the state to amend the municipal charter either by general or special act. Under its powers so enlarged the municipality may impose new burdens upon a street railway company, for by assuming to exercise powers which it did not possess it could not be estopped from the exer- cise of lawful powers subsequently conferred.* "The charter of the village of Bay City gave to the common coun- cil the control of the streets, but made no mention of street rail- roads. The act of May 21, 1865, (Laws Mich. 1865, p. 735), incorpo- rated the village as a city and pro- vided that all the acts and ordi- nances of the village should re- main in force until changed by the common council, and gave the lat- ter power to grant charters to street railway corporations. The village council, in 1864, had granted to certain persons, who subse- quently organized as an incorpo- rated company, the exclusive right to operate railways in its streets for thirty years. It was decided that the company's contract with the village was subject to the con- ditions of an amendment (2 Laws 1869, p. 561, sec. 98) empowering the council to authorize the con- struction of street railroads on condition that compensation should be made to the abutting owners. Said the court: "A village of a few hundred inhabitants may in much less than 30 years, grow to a city of many thousands. Bay City well illustrates this fact. What in the one would cause no damage, might in the other cause great damage. The village council can- not well provide regulations and ordinances applicable to a large city. It is, therefore, highly im- portant that the legislature should retain the power to pass enact- ments for the control of these quasi public corporations suitable to the changed state of affairs. Those who claim immunity from such control must be able to point to the clear enactment of the stat- ute establishing it In the case at bar, as already stated, no such ex- press power can be pointed out; and it was neither necessary, es- sential nor indispensable to ena- ble the municipal corporation to carry out the objects and purposes for which it was created. * * * It follows, therefore, that the de- fendant accepted its charter sub- ject to the right of the legislature to prescribe conditions under which it might thereafter obtain the use of the streets of the city for the construction of new lines. The act of 1869, above mentioned, expressly limited the power of the council to authorize the running of street railways in the streets of the city upon the condition of compensa- tion to owners of the lots adjoin- ing. The act of the legislature of 1881, revising the charter of Bay City, provided that the method of arriving at the compensation to be paid to lot owners shall be the same as provided by the general railroad laws of the state. The de- fendant was subject to the above provisions in making the extension § 3 6. J CHAETEE CONSTETTCTIOlTj POEFEITUEE^ EENEWAL. 67 § 36. Power of the legislature to amend the company's char- ter. — The right, as well as the extent of the right, of the legislature to amend or withdraw the franchise of a private corporation, must depend in every case upon, the constitution and prior legislation of the state. If this power be expressly reserved, the right to exercise it cannot be questioned. But ia so far as the charter is a contract, it cannot be affected by subsequent legislation without express reservation of the right so to do, either in the charter itself or in the laws under which the charter is granted.'^" Con- stitutional or statutory provisions for the repeal of statutes, which provide for the creation of corporations or the repeal of their charters, do not confer power to take away or destroy property, or to annul contracts, and an express reservation in such a statute of power to take away or destroy property lawfully acquired under authority conferred by a valid charter, as well as legislation which aiTthorizes such a result to be accomplished indirectly, is unconsti- tutional and void.-'-^ But, although the legislature, under its re- of Its road now in dispute." Tay- lor V. Bay City St. Ry. Co., 80 Mich. 77, 45 N. W. Rep. 335, (1890). "Cooley's Const. Lim. (7th Ed.), pp. 391-394, 837-840, where the proposition will be found sustained by numerous decisions. This sub- ject is discussed in Chaps. VIII, XI. See also New Jersey v. Yard, 95 U. S. 104, 113, (1877), to the point that the reservation of power to repeal will not be broadly con- strued; Williamsport Pass. Ry. Co. V. Williamsport, 120 Pa. St. 1, (1888), holding that the constitu- tional power in the legislature to alter, revoke or annul any corpo- rate charter thereafter conferred, gave no arbitrary power to repeal such charters at will, and that, even where a moving cause is made to appear, such alteration or revocation must be so made that no injustice will be done to the in- corporators. But a street railway company may be required by stat- ute to assume burdens in relation to the operation of its road with a view to the safety or convenience of the public. Geneva & Waterloo Ry. Co. V. New York Central & H. R. R. R. Co., 90 Hun 9, (1895). See sec. 221, post. Police Power of the State. A new remedy provided by sub- sequent legislation for the enforce- ment of certain obligations pre- viously imposed is not a violation of the obligation of contracts. New Orleans City & Lake R. R. v. New Orleans, 157 IT. S. 219, 15 Sup. Ct. Rep. 581, (1894). "People V. O'Brien, 111 N. Y. 1, (1888). It was held in this case that the statute annulling the com- pany's charter was constitutional and valid, but that its effect was only to take away the lite of the corporation; that the corporation took under its grant from the city an indefeasible title in the land over which its tracks were laid necessary to enable it to construct and maintain a street railway in Broadway, and to run cars thereon, 68 THE LAW OF STREET RAILWAYS. [§ 37. served power of repeal, cannot deprive a corporation of its property or anrnil its contracts with third persons, it may take away its franchise to be a corporation or prescribe the conditions upon which it may live and exercise the franchise.-'^ § 37. Further limitations on the power of amendment The power of alteration is not without limit. The alterations must be reasonable ; they must be made in good faith, and be consistent with the scope and object of the act of incorporation. Sheer op- pression and wrong cannot be inflicted under the guise of amend- ment or alteration. Beyond the sphere of the reserved power, the vested rights of property of corporations in such cases are sur- rounded by the same sanctions and are as inviolable as in other cases.-'^ The reservation in a charter, that the state may, at any time, alter, amend or repeal it, is a reservation made by the state for its own benefit and is not intended to affect or change the rights of corporators as between each other, nor does it authorize the state to permit one part of the stockholders for their own benefit at their mere option to change their contract with the which, constituted property; that N. R. R. Co., 32 App. Div. (N. Y.) all its property, including rights 311, (1898). and franchises, also its mortgages i= Under such power it has been and valid contracts, including traf- held that a company may be re- fic contracts, survived Its dissolu- quired to pay into the treasury of tion; that, upon such dissolution, the city of New York one per cent, its trustees then in office became of its gross receipts, instead of a invested with the title to its prop- license fee as before prescribed, erty under the provisions of the Mayor v. Twenty-third St. Ry. Co., statute of that state as trustees for 113 N. Y. 311, (1889). See also its creditors and stockholders; and Sioux City Ry. Co. v. Sioux City, 78 that the acts of 1886 providing, in Iowa 367, 39 N. W. Rep. 498, (1888), case of such dissolution, for the in which it was held that under the taking away from the company of power reserved to the legislature to its street franchises, and for the make such regulations and impose winding up of its affairs, by suit such conditions as it deemed best, brought by the attorney general, the obligation of the company to and the appointment of a receiver pave the streets occupied by it therein, were unconstitutional and might be enlarged. The same con- void. Where a company has been elusion was reached in Sioux City given a right by the municipality St. Ry. Co. v. Sioux City, 138 U. S. to lease its tracks, the right there- 98, (1891). by acquired by the lessee cannot "Shields v. Ohio, 95 U. S. 319, be thereafter taken away or im- 324, (1877); Citizens St. R. Co. v. paired. Roddy v. Brooklyn City & Memphis, 53 Fed. Rep. 715, (1893) ; § 37.] ClIAETEE COlM^STEUCTIOITj FOEFEITUEE, EENEWAL. 69 other part. The power to alter or modify a charter is restricted to the powers and franchises granted by the charter; it does not authorize the legislature to change the object of the corporation, or to substitute another for it. The alteration or modification is necessarily of the grant or thing to be altered or modified, and cannot be done by substituting a different thing. But a grant of an additional franchise to a corporation, not affecting or impair- ing those before granted, does not alter or modify the charter if it does not compel the corporation to exercise the franchise. Such a grant can be made, whether the right to alter or modify be reserved or not. But in neither case can a corporation be compelled to accept it, nor can part only of the corporators accept it without the consent of all.^* Although the legislature cannot, without the Davidge v. Common Council of City of Binghampton, 62 App. Div. (N. y.) 525, (1901). "Zabriskie v. Hacliensaclj; & New- York R. R. Co., 18 N. J. Kq. 178, (1867); York & Midland R. R. Co. V. Regina, 1 Ellis & Bl. 858. But in several New York cases it has been held that the power to alter will authorize a company, by con- sent of the legislature, to extend its enterprise without the consent of the stockholders. Northern R. R. Co. V. Miller, 10 Barb. 260, (1851); White v. Syracuse & Utica R. R. Co., 14 Barb. 559, (1853); Schenectady & Saratoga Plank Road Co. V. Thatcher, 11 N. Y. 102, (1854); Buffalo & New York City R. R. Co. y. Dudley, 14 N. Y. 336, (1856). To the same effect also see Durfee v. Old Colony & Fall River R. R. Co., 5 Allen 230, (1862). On the same general subject see Banet V. Alton & Sangamon R. R. Co., 13 111. 504, (1851) ; Pacific R. B. Co. V. Renshaw, 18 Mo. 210, (1853); Dedham & West Roxbury Co. v. Metropolitan R. R. Co., 8 Allen 279, (1864), sustaining an amendment which annulled the power given to the West Roxbury Company to construct its roads in the limits of Boston; Pacific R. R. Co. v. Hughes, 22 Mo. 291, (1855). In Mayor v. Norwich & Worcester R. R. Co., 109 Mass. 103, (1871), it appears that the legislature had passed an act requiring the rail- road companies therein named to unite in a passenger station in the city of Worcester, the place to be fixed as provided, to extend their tracks in the city to the Union sta- tion, and, after the extension, to discontinue parts of their existing locations. The act was held to be constitutional and valid, being a reasonable exercise of the right re- served to the legislature to amend, alter or repeal the charters of those companies. A ferry com- pany, whose charter is liable to al- teration or repeal, is subject to an amendment to its charter limiting the rates of toll to be charged for passengers transported on cars by street railway companies. Parker V. Metropolitan B. R. Co., 109 Mass. 506, (1872). No amendment or alteration can take away the property or rights which have be- come vested under a legitimate ex- ercise of powers granted. Coving- 70 THE LAW OF STBEET EAILWAYS. [§38. consent of the local authorities, give an existing street railroad company the right to construct a new road, or to make a road, in its construction and operation, a different one from what it was before, it may, without such consent, authorize the company to substitute a different kind of power.^' § 38. Effect of amendment on the liability of stockholders. — . The charter of a private corporation is a contract between three parties; the state, the corporation and its stockholders." There- fore, amendments made by the state which are compulsory, in other words, those which, by their terms, are to take effect without the consent of the corporation or its stockholders, are unconstitu- tional and void unless made under a reserved power to amend. ^'^ But under such a reservation the state may, by legislation enacted after the charter takes effect, materially change the character of the corporation without affecting the liability of the subscribers to ton & Lexington R. R. Co. v. Ken- ton Co. Ct, 12 B. Mon. 144, (1851). Under the guise of an amendment the legislature could not confer a railway franchise on a manufactur- ing company. Astor v. Arcade R. R. Co, 113 N. T. 93, (1889). "= In re Third Ave. R. R. Co., 121 N. Y. 536, 541, (1890), reversing 56 Hun. 537. The court decided that the local authorities could have no Interest In opposing a change from horse power to cable, because when so operated It would not materially increase its interference with the streets for other purposes. The court, therefore, held that a writ of mandamus should be granted to compel the commis- sioner of public works to issue a permit for the change. A different conclusion was reached in People ex rel. Third Ave. R. R. Co. v. New- ton, 112 N. Y. 396, (1889), a divided court holding, p. 405, that a cable road is, "as to one part of the street, surface, and as to another part, subterranean," and that a sur- face company had no right "to open, excavate or use below the existing surface of the streets, save for the temporary purposes of laying its tracks, and for necessary repairs thereafter;" and that the permit was properly refused. One of the judges who dissented in the earlier of these two cases deliv- ered the opinion in the later one. "Cook on Corporations, (6th Ed.), sec. 492. "Cooley on Const. Lim. (7th Ed.), pp. 392, 393 and 394; Cook on Corporations (6th Ed.), sec. 497; State Bank of Ohio v. knoop, 16 How. 396, (1853); Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, (1889); Greenwood v. Freight Co., 105 U. S. 15, (1881); Granby Mining & Smelting Co. v. Richards, 95 Mo. 106, (1888) ; Mow- rey v. Indianapolis & Cincinnati R. R. Co., 4 Blss. 78, (1866); Fry v Lexington & Big Sandy R. R. Co., 2 Met. (Ky.) 314, (1859). See also New York & Oswego Midland R. R. Co. V. Van Horn, 57 N. Y. 473, (1874), and Sinking Fund Cases, 99 U. S. 700, (1878). § 39.J CHAKTEE COK-STEtrCTION^ I'OEFEITUEE^ EENEWAL. 71 its capital stock. ^* Unless inhibited by constitutional provision, the legislature, having expressly reserved the right, may increase the liability of stockholders on their stock for debts previously incurred, or may impose a statutory liability in addition to the liability at common law.^^ § 39. Power of the legislature to suspend and revoke the charter or franchise. — The power to alter or amend does not in- clade or imply the power to annul or revoke a charter or to with- draw a franchise,^" but this power may be reserved by the state and may be exercised when not in violation of vested private rights. The right to repeal may be reserved by the operation of a constitutional provision or statute of general application in force at the time when the corporation was created.^^ But, although it may be within the power of the legislature to deprive a corpora- tion of a franchise granted to it by its charter if some public necessity demands it, the power will not be deemed to have been " The liability of subscribers to 10, (1864) ; Ochiltree v. Railroad the capital stock is not extin- guished by a legislative amend- ment of the charter made in pursu- ance of its reserved power, where such alteration consists In a change of the company's name, an Increase in its capital stock and the exten- sion of its road, and this is true whether the alteration Is beneficial to the stockholders or not. Buf- falo & New York City R. K. Co. v. Dudley, 14 N. Y. 336, (1856). "South Bay Meadow Diamond Co. V. Gray, 30 Me. 547, (1849) ; In re New York Elevated R. R. Co., 70 N. Y. 327, (1877); Butler v. Walker, 80 111. 345, (1875) ; Sleeper V. Goodwin, 67 Wis. 577, (1887). This power cannot be controlled by stipulations Inserted in the ar- ticles of association. In re Oliver Lee & Co.'s Bank, 21 N. Y. 9, (1860). Stockholders may be re- lieved from their statutory liabil- ity; but not as against existing debts. Hawthorne v. Calef, 2 Wall. Co., 21 Wall. 249, (1874). '" Spelling on Pri. Corp., sec. 1055. But the power to withdraw an en- tire franchise necessarily includes the power to modify the exercise of it. West End & Atlanta St. R. R. Co. v. Atlanta St. R. R. Co., 49 Ga. 151, 152, (1873). After a com- pany has obtained the necessary consents from the local authorities and from the abutting owners, and has obtained also the approval of the railroad commissioners, subse- quent legislation cannot deprive the company of its franchise privi- leges unless under the exercise of the power of eminent demain. Coney Is., Ft. H. & Brooklyn R. R. V. Kennedy, 15 App. Div. (N. Y.) 588, (1897). See also Hattersly v. Watervllle, 26 Ohio C. C. 226, (1904), relating to the making of bids and the acceptance and publication of ordinances. "People V. O'Brien, 111 N. Y. 1, (1888) ; Chesapeake & Ohio Ry. Co. V. Miller, 114 U. S. 176, (1885). 72 THE LAW OF STREET EAILWATS. [§ 40. exercised in the absence of some lonequivocal expression of legis- lative intent. ^^ A supplement to the charter which merely confers upon the corporation a new right or rejects an old one, without imposing any new or additional burden upon it, is a mere license or promise of the state and may be revoked at pleasure. It is without consideration to support it and is not binding upon a sub- sequent legislature.^^ Courts do not presume that the state will exercise its power of revocation unjustly or arbitrarily, and, there- fore, will not interfere with the discretion of the legislature to repeal a charter whenever it deems such action compatible with the public interests. In a Pennsylvania case the point was made and discussed, but not decided, whether corporate franchises which have become vested by acceptance or otherwise can be taken away or forfeited to the commonwealth by an alteration or amend- ment of the constitution of the state, and whether such amend- ment is not prohibited by Art. I, sec. 10, of the constitution of the United States. It would seem diificult to assign any satisfac- tory reason for upholding any such invasion of private rights, whatever the mode selected to accomplish the purpose.^* § 40. Municipal authorities — power to amend and withdraw the franchise or impose new obligations. — After a company has accepted an ordinance granting to it the right to construct and operate a street railway, in the absence of any reservation in the ordinance of the right to change or alter its terms the city, without the consent of the railway company, cannot impose upon it addi- tional obligations.^^ ISTeither can the local authorities, without an '^ Suburban Rapid Transit Co. v. for their own government a consti- Mayor 128 N. Y. 510, (1891). tution to which all other laws of =' Philadelphia & Gray's Ferry the state must conform," per Alli- Pass. R. Co.'s Appeal, 102 Pa, St. ^^'^^ P- J-> ii Lejee v. Continental 123, (1883). Pass. Ry. Co., 10 Phila. 362, 367, =* "It matters not whether the law '•^^'^^^ ' of the state which sins against this ."P®°Ple v- Chicago West Divi- provision of the supreme law of tr.''''",,^°-' ^^' '"■ '^^' ^^^'^^'' th^ i=„^ fc ,,„„o A u 4.V, ■, • , X Electric Ry. Co. of Grand Rapids v. he la^d IS passed by the legislature ^j^and Rapids. 84 Mich. 257, 47 n ordinary form and approved by n. W. Rep. 567, (1890), in which it the governor, or whether it is ^^s decided that the city after passed by a vote of the citizens of granting the right to use wooden the state, when in the exercise of poles within a specified district their sovereign power, they make could not by subsequent ordinance 40. J CI-IAETBE COITSTEUCTION"^ FOEPEITUEE^ EENEWAL. 73 express reservation of the right, recall or revoke a street franchise or license lawfully granted, after the grant has been duly accepted and the grantee has proceeded in good faith and according to the terms of its charter to exercise the rights and enjoy the privileges conferred upon it.^® But under an express reservation, there can require the use of iron poles without the company's consent. In Western Paving & Supply Co. v. Citizens' St. Ry. Co., 128 Ind. 525, 26 N. E. Rep. 188, (1891), the city, after a portion of the tracks had been laid, attempted to modify its contract with the company by re- quiring it to pave and keep in re- pair a portion of the street outside of the tracks, which the court held could not be done. See West Phil- adelphia Pass. Ry. Co. v. Dough- erty, 3 W. N. C. 62, (1876), holding that after the company had con- structed its railway with the con- sent of the city and while it was in the lawful enjoyment of its fran- chise the council could not legally grant any right to hack-men to use any portion of the company's route as a hack-stand, thereby excluding the company from its own tracks. See also Brooklyn Central R. R. Co. V. Brooklyn City R. R. Co., 32 Barb. 358, 364, (1860) ; Langdon v. Mayor, 93 N. Y. 129, (1883). But a munic- ipality cannot be divested by ordi- nance or contract of its legislative power to make changes in its streets in the exercise of a reason- able discretion; and the burden is not cast upon a city to show that its exercise of legislative power is reasonable. Snouffer v. Cedar Rapids & M. City Ry., 118 la. 287, 92 N. W. Rep. 79, 28 Am. & Eng. R. Gas. (N. S.) 745, (1902). Compare Chester Ry. Co. v. Darby, 217 Pa. St. 275, 66 Atl. Rep. 357, (1907). An ordinance passed by a munici- pal corporation in its legislative and governmental capacity, especially with reference to the control of the streets and the granting of rights and privileges therein, is a law of the state within the meaning of the contract clause of the constitution of the United States, and federal jurisdiction attaches without regard to the citizenship of the parties. Mercantile T. & D. Co. v. Collins Park R. Co., 99 Fed. Rep. 812, (1900). When an ordinance contract, to continue in force during the corpo- rate life of the grantee, fixes the rate of fare^ an ordinance by which the municipality attempts to change the rate of fare "is void under the contract clause of the constitution." Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 417, (1910). ^Asheville St. R. R. Co. v. City of Asheville, 109 N. C. 688, 14 S. B. Rep. 316, (1891); Rio Grande R. R. Co. V. Brownsville, 45 Tex. 88, (1896). In the same manner vested rights may be acquired by a tele- phone company. State v. Jersey City, 49 N. J. L. 303, 8 Atl. Rep. 123, (1887); New Orleans v. Great Southern Telephone & Tel. Co., 40 La. Ann. 41, 3 So. Rep. 533, (1888). ' See also Montgomery Co. v. Mont- gomery Trac. Co., 139 Fed. Rep. 353, (1905); Harvey v. Aurora & Geneva Ry. Co., 186 111. 283, 57 N. B. Rep. 857, (1900); Indianapolis Ry. Co. v. New Castle, 43 Ind. App. 467, 87 N. B. Rep. 1067, (1909); New York V. New York City Ry. Co., 117 N Y. Supp. 919, (1909). Where a street railway company, under a franchise in which permission is given to operate by electricity and 74 THE LAW OF STREET EAILWAYS. [§41. be no question as to the right to exercise this power. ^'^ Ordinarily there can be no judicial restraint of or interference with municipal corporations in the bona fide exercise of powers, legislative or dis- cretionary in their nature, provided private rights are not violated. But where a municipal corporation has fulfilled its legislative func- tion and exercised its legislative discretion and is about to carry its legislation into effect, if vested rights are violated or irrepara- ble wrong will be inflicted the courts may intervene.^* § 41. Eelease of the company from its obligations — Statutes prohibiting the release of the grantee from any of the obligations in which no provision is made as to the character of equipment (whether it shall be single or dou- ble trolley system), exercises its option and, with the knowledge and under the supervision of city author- ities, constructs a single trolley sys- tem, the rights of both parties are thereupon fixed and the company cannot, in the absence of implied obligation in the franchise, subse- quently be required to change to a double trolley system. Dayton v. City Ry. Co. (Ohio Com. Pleas), 36 Amer. Law Rev. 461, (1902). See also Street Ry. Co. v. Carthage, 18 Ohio C. C. 219, (1899). "Under the statutes of Massa- chusetts the selectmen of a town can revoke the location in a town of a railway which is chartered to extend beyond the limits of the town. Medford & Charlestown R. R. Co. v. Sommerville, 111 Mass. 232, (1872). See also Kalamazoo v. Mich. Trac. Co., 126 Mich. 525, 85 N. W. Rep. 1067, 24 Am. & Eng. R. Cas. (N. S.) 680, (1901). But see Cleve- land City Ry. Co. v. Cleveland, 94 Fed. Rep. 385, (1899), in which it was held, that a city may be es- topped from exercising its reserve power to alter or amend. Where a repealing ordinance destroys val- uable property rights of the com- pany, notice to the company of such municipal action is a necessary pre- requisite. Newark & Hackensack Trac. Co. v. North Arlington, 67 N. J. L. 161, (1901). See also Blair V. Chicago, 201 U. S. 400, 50 L. Ed. 801, (1905) ; Missouri Ry. Co. v. City of Olathe, 156 Fed. Rep. 624, (1908), relating to the repeal of ordinances. ^ Cape May & Schellinger's Land- ing R. R. Co. V. City of Cape May, 35 N. J. Eq. 419, (1882), In which the court held that, after a company had partially constructed its rail- way under express authority given by the city, the latter could not revoke the franchise by a subse- quent ordinance. But the court, holding that the repeal of the former ordinance could not operate to disturb private rights vested under it, declined to prevent the passage of the repealing ordinance, on the ground that the company's only remedy was to wait until after its passage and then test its validity If the city sought to en- force it. See Lake Roland Elec. Ry. Co. V. Mayor et al. of Balto., 77 Md. 352, 26 Atl. Rep. 510, 54 Am. & Eng. R. Cas. 11, 20 L. R. A. 126, (1893), where the court refused to review the action of the municipal- ity. 8 4:2.] CHABTEE CONSTEUCTION, FOEFEITUEE, EENEWAL. 75 or liabilities imposed upon it are not to be construed witb such strictness as to prevent the public authorities from substituting one duty or liability for another, when the change inures to the benefit of the public. Such restrictions upon municipal power are enacted for the purpose of preventing the waiver or release of obli- gations assumed by the grantee in consideration of the grant of valuable privileges, without substituting some other consideration of at least equal value to those whose interests the city is bound to protect. Under a more strict and technical interpretation of such statutory restrictions, in many instances the public would be deprived of the benefits which might accrue from changes in motive power, the improvement of appliances, a reduction in fares, greater frequency of trips, and many other changes of equipment and management which are made equally advantageous to both parties to the contract.^* § 42. Temporary suspension of company's business by city pending local improvements. — ^During the term of its franchise a company has the right to the continuous use of that portion of the street on which its tracks are laid; but such use may be inter- rupted by the public authorities when it becomes necessary in the construction and repair of pavements, sewers and other public works. This right is often reserved in express terms; but such a provision in the charter or contract defining the rights and duties of the parties is wholly unnecessary, because a city cannot divest itself of the power and duty of retaining and exercising a reason- ^In accordance with the views tract permitting a higher rate of expressed in the text it is held that fare void as a release of a legal a city council may lawfully amend obligation, if made in good faith, a street railway charter so as to for the better accommodation of relieve the company from its obll- the public, and in consideration gation to pave a certain portion of of more rapid transportation, in- the roadway in consideration of the volving greater expense to the construction of new lines of road company. Clement v. City of Cln- and a reduction of the fare over cinnati, 16 W. L. B. 355, (1886). all the lines of the connected or The change in this case was from consolidated system. Western horse power to the endless cable, Paving & Supply Co. v. Citizens' in consideration of which the com- St. Ry. Co., 128 Ind. 525, 26 N. E. pany was permitted to Increase the Rep. 188, 10 L. R. A. 770, (1891). fare from five to six and one-fourth Nor is a modification of the con- cents. 76 THE LAW OP STREET EAILWAYS. [§43. able control over all its public tboroughfares.^" But a license obtained from a city council will confer no right upon private individuals to interfere with the operation of a street railway by acts done in the promotion of a strictly private enterprise, espe- cially when such interference woidd result in the destruction of the company's property or in seriously crippling its business.^^ § 43. Expiration, renewal and extension of franchise ^As See City of Worcester v. "Wor- cester Consol. St. Ry., 182 Mass. 49, 64 N. E. Rep. 581, 27 Am. & Bng. R. Gas. (N. S.) 856, (1902), where the company was relieved of cer- tain repairing which it had agreed to do, on condition, however, that It pay certain new taxes. ""Kirby v. Citizens' Ry. Co., 48 Md. 168, (1877); Philadelphia & Gray's Ferry R. R. Co. v. Philadel- phia, 11 Phila. 358, (1876), in which it was held that the company being derelict in the performance of its duties to repair the streets, abut- ting property owners, although subjected to great inconvenience, could not complain because the city temporarily prevented the pas- sage of cars while repairing the street along the tracks; North Pennsylvania R. R. Co. v. Stone, 3 Phila. 421, (1859) ; Elliott on Roads and Streets, pp. 564, 576; Middlesex R. Co. V. Wakefield, 103 Mass. 261, (1869). But see Eddy v. Ottawa City Pass. Ry. Co., 31 Up. Can. Q. B. 569, (1872); Des Moines City Ry. Co. V. Des Moines, 90 Iowa 770, 58 N. W. Rep. 906, (1894). Although there may be no cases directly in point to serve as a guide, there can be no doubt that the recipients of other grants to use the streets may acquire the right to make ex- cavations, or place obstacles, there- in which will temporarily interfere with the running of the cars. In RafCerty v. Central Trac. Co., 147 Pa. St. 579, (1892), it was held that a grant for the construction and operation of a cable railway will not affect an abutting prop- erty owner's right of access to pipes and mains in the street, although the exercise of the right may result in temporarily obstruct- ing the movement of the cars. In the absence of such a reserva- tion of power it has been held that even if there is room on either side of the street, the city may construct sewers in the middle of the street, thus temporarily interfering with the company's operation of its road. City of San Antonio v. San Antonio St. Ry. Co., 15 Texas Civ. App. 1, 39 S. W. Rep. 136, (1896); Spokane St. Ry. Co. v. Spokane, 5 Wash. 634, 32 Pac. Rep. 456, (1893). But where irreparable injury will be committed, the court may pass upon the reasonableness of the city's action, and grant an in- junction. Clapp V. City of Spokane, 53 Fed. Rep. 515, (1892). Accord, Des Moines City Ry. Co. v. Des Moines, 90 la. 770, 26 L. R. A. 767, 1 Am. & Etig. R. Cas. (N. S.) 215, (1894); Milwaukee St. Ry. v. Ad- lam, 85 Wis. 142, 55 N. W. Rep. 181, (1893). See also Montreal Park & Island Ry. Co. v. Town of St. Louis, 17 Que. S. C. 545, (1901). ''In a case in Indiana it appears •§ 43.] CIIAETEE CONSTEtJGTIOig-, POEFEITUEE, EENEWAL. 77 repeals by implication are not fayored and the rule of strict con- struction against the grantee is strictly applied to the charters of private corporations, a corporation will not be permitted to enjoy a franchise beyond the expiration of its original charter, unless that intention has been clearly expressed by the granting power. Amendatory and supplemental acts or ordinances will not have that effect unless the intention to renew the franchise be expressed in apt terms, and any ambiguity in the language used will be re- solved in favor of the state.'^ If a grant is made for a term in that a church congregation, with the tacit permission of the city council, sought to move its edifice across a street occupied by a line of street railway operated by elec- tricity with the overhead wire . system. The building being too high to pass under the wires, the contractor employed by the con- gregation threatened to cut the wires, relying upon the tacit per- mission of the city and upon the claim that the company had for- feited its right in the streets by changing its motive power without specific authority. In a suit by the company to enjoin the threatened destruction of its property, the point was made by the defendants that the court had no jurisdiction to control the city council in the exercise of its authority over the streets. The court very promptly and properly decided that the au- thority to determine legal contro- versies concerning personal or property rights had not been vested in the common councils of the cities of that state; that the failure or refusal of the common council to take steps to prevent the injury or destruction of the railway property did not preclude the company from seeking redress in court; that no individual could insist that the corporate existence of the company had terminated, or that he could at pleasure confis- cate or destroy its property in order to move a house across its tracks; and that although citizens had the right to the ordinary use of the streets, they could not in- terrupt trafllc or discommode the public by tearing down street car lines in order to remove buildings along the streets. Williams v. Citizens' St. Ry. Co., 130 Ind. 71, 29 N. B. Rep. 408, 15 L. R. A'. 64, (1891). Injunction granted against defendant who sought to move a frame building across the street. Millville Trac. Co. v. Goodwin, 53 N. J. Eq. 448, 32 Atl. Rep. 263, (1895). In this case the defendant offered to move the building be- tween the hours of 11 P. M. and 6 A. M. See also Traction Co. v. Sterling, 29 Ohio C. C. 227, (1906). *°A Louisiana case furnishes a good illustration of the rigid appli- cation of these principles. A com- pany was chartered by the legisla- ture in 1833, the duration of its franchise being limited to fifty years. In 1835 the legislature chartered a second company to construct its railway in certain streets, and provided "which said railroad shall commence at the ter- mination of the railroad described in the original act of incorporation 78 THE LAW OF STREET EAILWAYS. [§43. excess of the statutory limit it is not, for that reason, wholly void. The franchise will remain in effect during the period permitted by statute, but at the end of that time unless renewed it will expire by operation of law.'^ Under a charter limited to a definite term and providing that at its expiration the city shall take and pay for the company's railroads, rolling stock, equipment and fixtures, the failure of the city to pay the company for such prop- erty will not have the effect of prolonging the franchise, or pre- vent the city from exercising its control over the streets for the benefit of the public.** Where the rights granted have lapsed, the of said company, and constitute an extension thereof, and shall run to the town of Bayou Sara," etc. This charter was limited to sev- enty-five years. It was contended that the effect of the second act was to prolong the life of the first charter. But this was denied by the court in an able opinion con- taining an elaborate discussion of the question. New Orleans & Car- rollton R. R. Co. v. City of New Orleans, 34 La. Ann. 429, (1882J. An ordinance granting a company permission to extend its tracks and operate them "in connection with the main line" for a period of time longer than the right to operate the main line, does not extend the main line franchise, regardless of whether such extension is capable of independent operation. Nor does permission to double track its lines confer on the company the right to operate the second track for a period beyond the term of the franchise of the line double-tracked. Cleveland Elec. Ry. Co. v. Cleve- land, 137 Fed. Rep. Ill, (1905), affd 204 U. S. 116, (1907). A mu- nicipal ordinance, consenting to the consolidation of street railway com- panies operating a number of lines, the franchises for which expire at different dates, does not, in the ab- sence of express provision there- for, have the effect of extending the franchise of any line beyond the term of the original grant to that line, although by the consoli- dation passengers acquired the right of free transfer from one line to another. Central Trust Co. v. Municipal Trac. Co., 169 Fed. Rep. 308, (1909). See also Govln v. City of Chicago et al., 132 Fed. Rep. 848, (1906); Akron v. Traction & Light Co., 27 Ohio C. C. 536, (1905). ^ Sommers v. City of Cincin- nati, 8 Am. Law Rec. 612, (1880). " Canal & Claiborne St. R. R. Co. V. City of New Orleans, 39 La. Ann. 709, (1887). In this case the com- pany sought to enjoin the city from advertising and selling the street franchise on the ground that it had failed to purchase the company's property In compliance with the provision of the granting ordinance, but the court held that if the obli- gation existed it was a contract which the company might enforce by due course of law, and that the city's right to resume control of its streets remained unimpaired. But where the grant was made for forty years with a proviso, that at the expiration of twenty years the municipality might, after six months' notice to the company, to S 43. j CHAETEE C02TSTEUCTI0N, FOEFEITTJKB, EENEWAL. 79 mimlcipality may impose whatever conditions it pleases upon a renewal of them ; and, as the company has no right to act except under the conditions of an ordinance granting permission, its action will imply its acceptance of the conditions in full.*** Although under the statutes of some of the states the original grant cannot be made without the consent of abutting property owners and can be made only to the company or individual offering to carry passengers at the lowest rate of fare these conditions are not essential to the validity of a renewal or extension of the grant.** Nor is competition in rates of fare, although required for an origi- nal grant, a condition prerequisite to the valid renewal of the fran- chise. Hence, whenever, in the opinion of the local authorities, the public welfare would be promoted thereby, they may, by agree- ment with the grantee, terminate a grant previous to its expiration, and renew the franchise for any period not in excess of the limi- tation fixed by statute.*^ be given twelve months before the expiration of the twenty years, as- sume the ownership of the railway upon the payment of its value, to be determined by arbitration, to- gether with ten per cent, penalty, and the corporation gave such no- tice within less than six months before the expiration of twenty years, it was held that the notice did not comply with the terms of the ordinance, and that, therefore, the company had a right to exer- cise its franchise for the full term of forty years. Quebec St. Ry. Co. V. Quebec 15 Can. Sup. Ct. 164, (1887). ^City of Detroit v. Detroit City Ry. Co., 37 Mich. 558, (1877). The city of Detroit allowed a street railway company to double its tracks throughout a certain street, but stipulated that it should there- after bear all the expense of re- paving so much of the street as it occupied with its tracks, and should relay its tracks in the mid- dle of the street. It was held that by accepting the provision of the new ordinance, the company lost the benefit of former exemptions and privileges. See also Regina v. Toronto St. Ry. Co., 24 Up. Can. Q. B. 454, (1866). =« Clement v. City of Cincinnati, 16 W. L. B. 355, (1866); Pelton v. East Cleveland R. R. Co., 22 W. I^. B. 67, (1889); Haskins v. Cincin- nati Consolidated R. R. Co., 4 W. L. B. 1126, (1879); State ex rel. Hadden v. East Cleveland R. R. Co., 6 Ohio C. C. 318, (1891), affld. without report by the Ohio Sup. Ct., January, 1892. " State ex rel. Hadden v. East Cleveland R. R. Co., supra. In Smith V. Indianapolis St. Ry. Co., 158 Ind. 425, 63 N. E. Rep. 849, 26 Am. & Eng. R. Cas. (N. S.) 116, (1902), the city of Indianapolis by agreement with the company ac- cepted a surrender of the remain- der of its franchise, and granted a renewal, thereby increasing the rate of fare from three cents to five cents. 80 THE LAW OP STREET EAILWATS. [§ 44. § 44. Existence of franchise, how and by whom questioned. — It is a general tkough not a universal rule, that the existence of a corporation or its franchises cannot be attacked in a collateral proceeding. ^^ But under a JSTew York statute providing that "in case the several portions of such railway or railways shall not be completed, each within the time and upon the conditions hereinbe- fore, and, as to such portion, provided for, the rights and fran- chises acquired by such corporation shall be released and forfeited to the supervisors of the county of KingS!," it was held that, on an application to the court by the company for the appointment of commissioners of appraisal, property owners might resist the ap- pointment upon the ground, among others, that the corporation had lost all its corporate rights and frauehises by failing to con- struct its road within the time prescribed in the report of the commissioners.^^ If the grantee violates its charter or fails to perform the conditions under which it exercises its franchises, the remedy is a proceeding in behalf of the people by the attorney- general to annul or forfeit its charter or franchise, and, if it unlawfully occupies or obstructs the highway, the remedy is by indictmeut or proceedings under the statute.*" The judgment of In this case it was held that a out suit brought for that purpose, statute empowering a municipality and that the company could not be to make such agreement whereby attacked for its default in con- additional benefits are conferred demnation proceedings, upon the company, is constitu- " Moore v. Brooklyn City R. R. tional. Co., 108 N. Y. 98, (1888). In this ^ In re New York Elevated R. R. case the city attempted by man- Co., 3 Abb. N. C. 401, (1877), af- damns to compel the company to firming 7 Hun 239; Brown v. At- run its cars over an abandoned lanta Ry. & P. Co., 113 Ga. 462, 39 route. In People v. Mutual Gas S. E. Rep. 71, (1901); sec. 10, ante, Light Co., 38 Mich. 154, (1878), note, and sec. 49, post. leave was refused to file an infor- "" In re Kings County Elevated mation based upon the violation of Ry. Co., 41 Hun 425, (1886), fol- an agreement imposing conditions lowing In re Brooklyn, Winfleld & upon which the company obtained Newtown Ry. Co., 72 N. Y. 245, valuable privileges from a city, on (1878). But see In re New York the ground that the state had no Elevated R. R. Co., 70 N. Y." 327, interest in redressing such griev- 9 Ry. & Corp. L. J. 264, (1877), ances. See Commonwealth v. Tenth in which the court held, under Massachusetts Turnpike Corp., 11 a similar statute, that such a cause Cush. 171, 175, (1853). To the of forfeiture does not per se divest point that the city has the right the company of its franchise with- to interfere where the general pub- 8 44.J CHABTEE CONSTETJCTION', FORrEITURBj EENEWAL. 81 dissolution or ouster is strictly a judicial act for some imputed delinquency ascertained by proceedings at law instituted for that purpose, and is not one of tlie prerogatives of legislative power. Therefore, an act of the legislature assuming to declare a forfeit- ure or oust a corporation from the enjoyment of a franchise is a nullity. *■*■ If a valid corporation assumes to exercise a license or power conferred by an invalid ordinance of a municipal corpora- tion or in excess of authority lawfully conferred upon it, a court of equity upon a proper showing has jurisdiction to interfere and restrain it. Or if the corporation has ceased to exist and is abso- lutely dead in law, the court may enjoin threatened acts by per- sons assuming to act on behalf and in the name of the dead cor- lic is interested, as in the use of streets, see Morawetz Pri. Corp., sec. 1018; Attorney-General v. Rail- road Cos., 35 Wis. 523, 524, 595, (1874) ; to the point that the ex- istence of other remedies at law will not necessarily deprive tne public of the common law remedy by information for a misuser of corporate franchises, see People V. Bristol & Rensselaerville Turn- pike Co., 23 Wend. 222, (1840); People v. Hillsdale & Chathan Turnpike Co., 23 Wend. 254, (1840). The legal existence of a company cannot be determined and the validity of its incorporation im- peached in a suit for damages for tort. Pinkerton v. Penna. Traction Co., 193 Pa. St. 229, 44 Atl. Rep. 284, (1899). See also Trelford v. Coney Is. R. R., 5 App. Div. (N. Y.) 465, (1896). This case was again adjudicated in 6 App. Div. (N. Y.) 204, (1896). An application by the attorney- general for leave to file an infor- mation in the nature of a quo war- ranto on the ground that the com- pany was operating under an ex- clusive and perpetual franchise, whereas the township granting same had the power to grant a 6 franchise for a period of thirty years only, was denied. The com- pany, said the court, was exercis- ing its right within the legitimate period of its corporate life, and after it had incurred great expense in constructing and operating its lines; and, as neither the township nor its inhabitants complained, the case did not present such public interest as to justify the applica- tion. Atty. Gen. v. Detroit Ry. Co., 96 Mich. 65, 55 N. W. Rep. 562, (1893). For a general dis- cussion of the proper remedy in such cases, see High on Extraordi- nary Legal Remedies (3d Ed.), sees. 648, 649, 650, 651. *^ Regents of University of Mary- land V. Williams, 9 Gill & J. 365, 31 Am. Dec. 72, 92, (1838); Chesa- peake & Ohio Canal Co. v. Balti- more & Ohio R. R. Co., 4 Gill & J. 122, (1832); Darnell v. State, 48 Ark. 321, (1887); Chicago Life In- surance Co. V. Needles, 113 U. S. 574, (1885); State v. Minnesota Central Ry. Co., 36 Minn. 246, (1887); Cooley's Const. Lim. (7th Ed.), pp. 149, 370-372; Greenough V. Greenough, 11 Pa. St. 489, (1849) ; State v. Adams, 44 Mo. 570, (1869); Purdy's Beach on Priv. Corp., sees. 1307, 1314. 'Sii THE LAW OF STRKE't RAILWAYS. [§ 45. poration.*^ In an action to enforce the forfeiture of a corporate franchise on account of non-user or misuser, the complaint must specifically allege that the defendant company has a legal exist- ence as a corporation. The persons exercising the franchise are the only proper defendants; but if the corporation be made a defendant as such its corporate existence is admitted. The state is not estopped from maintaining such an action by former litiga- tion with the company recognizing by implication its corporate existence.** Forfeitures are not favored, and those who challenge the existence of a franchise on the ground of failure to comply with a conditional limitation under which the grant was made, must bring themselves strictly within the provisions of the charter under which they claim the right of forfeiture arises.** § 45. Forfeiture — general principles governing it — Courts proceed with great caution in proceedings which have for their object the forfeiture of corporate franchises. It is not every act of non-performance of the conditions in the act of incorporation, or every misuser, that will forfeit a grant. A substantial per- formance, according to the intent of the charter, is all that is re- quired.*** To justify a forfeiture, the complaint must show on its face corporate acts or omissions such as not only put the com- pany technically in the wi'ong, but which were either voluntary or negligent and so material a disobedience of the public law and its established rules as to warrant a judgment of dissolution of a particular franchise. There must be such a showing of willful " Attorney-General v. Chicago & on the construction of a street rail- Evanston R. R. Co., 112 111. 520, way must be commenced within a (1884). year from the date of the ordinance *■ People V. Stanford, 77 Cal. 360, granting the right of way and the (1838) ; Angell & Ames on Corp., filing of the articles of Incorpora- sec. 756; Boone on Corp., sees. 162, tion, and be completed within three 163; State ex rel. v. Cincinnati Gas years thereafter. The court held Light & Coke Co., 18 Ohio St. 262, that in an action to forfeit the (1868) ; People v. Rensselaer & franchise the complaint filed should Saratoga R. R. Co., 15 Wend. 113, state when the company com- (1836); Mudcreek Draining Co. v. menced the work of construction; State, 43 Ind. 236, (1873). otherwise a cause of action would " People V. Los Angeles Electric not be disclosed. Ry. Co., 91 Cal. 338, 27 Pac. Rep. « Chicago City Ry. Co. v. People, 673, (1891). The statute construed 73 111. 541, (1874). in this case provided that the work And whether or not there was a 45.] CHAETEE CONSTEUCTIOlSr, FOEFEITUEE,, EENEWAL. 83 abuse or improper neglect as necessarily implies actionable mis- conduct. Corporations have a right to require of those who seek their destruction or the withdrawal of any of their franchises the specific allegation of iatentional or voluntary misconduct, or such neglect as indicates an indifference to the demands of public duty, unless the act or omission is made by statute a cause of forfeiture, irrespective of its intent or character.*® Acts sufficient to cause a forfeiture do not per se produce one. The corporation continues to exist until the sovereignty which created it shall, by proper proceedings in the proper court, procure an adjudication of for- feiture and enforce it.*'^ But the legislature, in chartering a cor- substantial compliance is a ques- tion of fact for the jury under all the evidence. Mayor of Houston v. Houston & Magnolia Pk. Ry., 84 Tex. 581, 19 S. W. Rep. 786, (1892). * People v. Atlantic Ave. R. R. Co., 125 N. Y. 513, (1891). This was a proceeding to forfeit the company's charter because of its failure to operate its cars during the first five days of a strike by its employees, and because the com- pany permitted, required and al- lowed its conductors, drivers and other employees to work more than ten hours within twelve consecu- tive hours for a day's labor, in violation of Chap. 529, N. Y. Laws, 1887, which made such conduct a misdemeanor — acts which the court held to be no cause of forfeiture. The fact that a company did not lay its tracks on the street grade, and refused to grade a part of the street, as it had undertaken to do, or to pay a sum which under the ordinance was to be paid to the city for widening a street, were held not to be such serious viola- tions of the ordinance, when not persisted in for any great length of time, as to warrant the court in forfeiting all rights to use the streets. City of Olathe v. Missouri Ry. Co., 78 Kan. 193, 96 Pac. Rep. 42, (1908). There must have been a wilful or Improper act or neglect such as to work or threaten a substantial injury to the public. Iowa v. Omaha & Council Bluffs Ry. & Bridge Co., 91 la. 517, 60 N. W. Rep. 121, 61 Am. & Eng. R. Cas. 629, (1894); Attorney-General v. Detroit R. R., 96 Mich. 65, 55 N. "W. Rep. 562, (1893); Millcreek v. Erie Ry. Co., 216 Pa. St. 132, 64 Atl. Rep. 901, (1906). The fact that a corporation car- ried freight not authorized, and charged excessive fares, and ob- structed the streets of the city is not a cause for the forfeiture of its franchise, but calls for regulation of the business done by the corpo- ration. Attorney-General v. Toledo Ry., 151 Mich. 473, 115 N. W. Rep. 422, (1908). " People V. Los Angeles Electric Ry. Co., 91 Cal. 338, 27 Pac. Rep. 673 (1891). The constitution of Cal- ifornia provides that no act shall be passed extending the charter or re- mitting the forfeiture of a fran- chise. While an action was pending to forfeit the charter of a street railway company operating under a city ordinance, an act was passed 84 THE LAW OF STREET EAILWAYS. [§46. poration, has power to provide that it may lose its corporate exist- ence, without the intervention of the courts, by omission of duty or violation of its charter or default as to limitations imposed. Where the language used shows that the legislature intended to make the continued existence of the corporation depend upon its compliance with some requirement of its charter, in case of non-compliance the powers, rights and franchises granted are forfeited and ter- minated; it is not simply a cause of forfeiture to be enforced in an action by the attorney-general. As to the effect of such a re- quirement, it is inxmaterial whether it is contained in, and the corporation organized under, a general law or a sipecial charter.** § 46. Forfeiture declared by statute — ^While a forfeiture at common law does not operate to divest the title of the owner until a suit is instituted for that purpose and the rights of the state are amending the city cod© so as to In- vest municipalities ■with power to authorize street railways to use electricity as a motive power. An- other act was passed, ratifying existing ordinances granting such power. In construing those acts, the court held that they were not repugnant to the constitution, be- cause there was no forfeiture of any franchise to remit, there being merely a right to declare a forfeit- ure. The mere grant to a third party of the same rights as those which are enjoyed by a railway whose franchise is liable to forfeiture for non-performance of a condition sub- sequent will not, of itself, effect a forfeiture. Santa Rosa City R. R. V. Central St. Ry. Co., 112 Cal. 436, 1 Am. & Eng. R. Cas. (N. S.) 105, (1895). " Limitations of the original char- ter are not abrogated by not being repeated in the amendatory act. The two acts are to be taken and to be construed together, and the pro- visions of the former will be held to remain in force, except as modi- fied by the latter. Brooklyn Steam Transit Co. v. City of Brooklyn, 78 N. Y. 524, (1879). The provision of the act relied upon by the city of Brooklyn as terminating the exist- ence of the company without judi- cial interference was as follows: "This act shall take effect sixty days after the passage thereof; but unless said Brooklyn Steam Transit Company be organized, and at least one mile of such railroad, as it Is authorized and empowered to con- struct under this act, be made with- in three years thereafter, then and in that case this act and all the powers, rights and franchises here- in and hereby granted, shall be deemed forfeited and terminated." That act was passed in 1871, and in 1873 an amendment was passed con- taining the following provision: "The time for the construction of the one mile of railroad by the said corporation required by said first mentioned act is hereby extended to the fourth day of July, 1876." The city claimed and the court held, that the company lost its corporate existence by not building one mile 8 46.J CHARTER COWSTEtrOTIOlir^ POBFEITTJEE^ EEKEWAL. 85 established by judgment, it is otherwise when a forfeiture is declared by statute. In the latter case the title to the thing for- feited immediately vests in the state, upon the commission of the offense or the happening of the event for which the forfeiture is declared. If the franchise is granted by the legislature to construct a street railroad within a certain time, with the condition, that if the provisions of the act are not complied with the franchise shall be forfeited, a failure, without legal excuse, to lay the tracks within the time limited does not work a forfeiture of the right to construct, without a judgment at the suit of the state declaring a forfeiture.*^ But if the statute provides that upon such failure the franchise shall "be terminated" or shall "cease," the default will put an end to the franchise without judicial pro- ceedings, and the legislature may confer the franchise upon any other company or person.^" The same rule applies to a grant of its road before the expiration of the time limited, to-wit, July 4, 1876. Earl, J., on p. 529, stated the general rule and its qualification in the following language: "The gen- eral principle is not disputed that a corporation, by omitting to per- form a duty imposed by its charter or to comply with its provisions does not ipso facto lose its cor- porate character or cease to be a corporation, but simply exposes itself to the hazard of being de- prived of its corporate character and franchises by the judgment of the court in an action insti- tuted for that purpose by the at- torney-general in behalf of the peo- ple; but it cannot be denied that the legislature has power to provide that a corporation may lose its cor- porate existence without the inter- vention of the courts by any omis- sion of duty or violation of its char- ter or default as to limitations im- posed, and whether the legislature has intended so to provide in any case depends upon the construction of the language used." See Ormsby V. Manufacturing Co., 65 Barb. 360, (1873); People v. Manhattan Co., 9 Wend. 351, (1833); Commonwealth V. Bank, 28 Pa. St. 383, (1857). But see Gratz v. Highland Scenic Ry., 165 Mo. 211, 65 S. W. Rep. 223, 28 Am. & Bug. R. Cas. (N. S.) 394, (1901), where the requirements im- posed were termed collateral agree- ments, the breach of which did not work a forfeiture. Insolvency is no defense to an action for forfeiture. Union St. Ry. v. Saginaw Circuit Judge, 113 Mich. 694, 71 N. W. Rep. 1073, (1897). "In re Brooklyn Elevated R. R. Co., 125 N. Y. 434, (1891). ™ In re Brooklyn, Winfield & Newtown Ry. Co., 72 N. Y. 245, (1878) ; In re Brooklyn, Winfleld & Newtown Ry. Co., 75 N. Y. 335, (1878) ; Brooklyn Steam Transit Co. V. City of Brooklyn, 78 N. Y. 524, (1879); Oakland R. R. Co. v. Oak- land, Brooklyn & Fruit Vale R. R. Co., 45 Cal. 365, (1873). The stat- ute construed in the last case re- quired that the work should be com- menced within six months, and one S6 THE LAW OF STJEEET KAILWAYS. [§46. made by ordinance. Accordingly, if the company fails to build within the time fixed by the local authorities the privilege no longer exists. Such consent is a mere license, and until the grantee avails itself of the privilege no obligation or relation arises which requires a judicial declaration of forfeiture. After the time expires, a renewal of the privilege is necessary to entitle the com- pany to occupy the streets and build its road.^^ Where a company track be laid within the limits of the city of Oakland within eighteen months and the whole road com- pleted within five years from the passage of the act, and contained the further provision "that if the provisions of this act are not com- plied with, then the franchise and privileges herein granted shall ut- terly cease and be forfeited." In City of Chicago v. Chicago Western & Indiana R. R. Co., 105 111. 73, (1882), it appears that a grant was made to the company to con- struct its road across certain streets under an ordinance containing the following provision: "The privilege and authority hereby granted are so granted upon the further express condition that the tracks authorized by this ordinance shall be laid down and constructed within one year from the passage of this ordinance, and if not so constructed and in operation, all the rights and privi- leges granted by this ordinance to such company shall cease, and be null and void." The company was prevented from completing its tracks within the required time by injunctions and by the interference of police ofiScers of the city acting under the direction of the mayor. It was held that the right of the company under the grant was not lost, and that the city might be en- joined from interfering with the laying of the tracks after the ex- piration of the year, as it was ap- parent that it would have been com- pleted within the time limited had it not been prevented by operation of law and the acts of the city au- thorities. The court held that the condition expressed in the ordi- nance was a condition subsequent. But in the case of Oakland R. R. Co. V. Oakland, Brooklyn & Fruit Vale R. R. Co., supra, the court held that whether the condition ex- pressed in the statute was a condi- tion precedent or condition subse- quent (see. page 373), the unused portion of the streets could be granted to another company with- out a judgment of forfeiture. In harmony with the last case also is Hughes V. North Pacific Ry. Co., 18 Fed. Rep. 106, (1883). As to the effect of a curative act extending the time for completion of a turn- pike road, see People ex rel. v. Kingston & Middleton Turnpike Road Co., 23 Wend. 193, (1840). "1 Street Ry. Co. v. West Side St. Ry. Co., 48 Mich. 433, (1882) ; Atchi- son St. Ry. Co. V. Nave, 38 Kan. 744, (1888) ; Ft. Worth St. Ry. Co. V. Rosedale St. Ry. Co., 68 Tex. 169, (1887). In the latter case it ap- pears that the city of Ft. Worth au- thorized the Ft. Worth St. Ry. Co. to build a railway on one of several designated streets and reserved the right to determine when the re- quirements of traffic would necessi- tate a road over either of the others, and provided that If the company, on being notified on which of the streets a new railway was desired, 8 *7.j CHABTER CONSTETJCTION, POEFEITUEE, BENEWAL. 87 IS authorized to lay tracks for several distinct routes, all of which are parts of one system, to be completed before a certain date or as soon thereafter as the streets ai-e opened, and a part only are opened within the time fixed for the completion of the system, the company is not thereby relieved of its obligation to complete on other streets and avenues, and for a default in that respect the charter may be forfeited.^^ § 47. Failure to lay tracks within the time prescribed It is not unusual to provide by statute or ordinance that the road shall did not comply with tlie notice witliin twelve months, then the right to "those streets" was for- feited. The ordinance was accepted hy the company and the road built on one of the streets named. It was held that the passage of a subse- quent ordinance giving again to the company the right to construct a street railway over two of the streets designated in the first ordi- nance was a sufficient notice imder the requirement of the first ordi- nance that the city desired a new road built, and that the failure to build within the time required worked a forfeiture of the right to build on any of the streets desig- nated in the first ordinance. But the right to build may be kept alive by a subsequent act or ordinance extending the time. A charter of a company authorized it to build a single track within a time fixed, under the penalty of forfeiture in case of non-compli- ance. Before the expiration of that time the original ordinance was amended extending' the period for ten years. The effect of the latter ordinance was to extend the time for ten years after the expira- tion of the time fixed by the pre- vious ordinance. After the passage of the second ordinance, the com- pany passed a resolution adopting the terms of the ordinance on con- dition of the repeal of a certain other ordinance and agreed to the postponement of the laying of the tracks for the time mentioned. Subsequently the council accepted the proposition contained in the resolution, reciting that the com- pany had obligated itself to post- pone the laying of the tracks for the period of ten years, and the amendatory ordinance was con- firmed. This was held not to con- stitute an abandonment of the right to build by the company, but merely a postponement of the right. McNeil v. Chicago City Ry. Co., 61 111. 150, (1871). A franchise granted by a munic- ipality to a company may be for- feited by failure to comply with conditions subsequent named in the ordinance granting the fran- chise, if the ordinance provides for a forfeiture. Wheeling Ry. Co. v. Triadelphia, 58 W. Va. 487, 52 S. E. Rep. 499, (1905). '' People V. Broadway R. R. Co., 126 N. Y. 29, (1891), reversing 56 Hun 45, (1890); New York Cable Co. V. City of New York, 104 N. Y. 1, (1887). In Texas it has been held that if a road has been built under a grant from the city and after- wards abandoned, the right to oc- cupy the same streets may be con- 88 THE LAW OF STREET EAILWATS. [§47. be commenced or completed, or that a specified portion of the ■work shall be done, or a given percentage of the capital expended in the construction, within a designated period.^^ Such a require- ferred by the city on another com- pany without first procuring a judi- cial decree of forfeiture against the company that procured the first license. Gulf City Ry. Co. v. Gulf City St. Ry. Co., 63 Tex. 529, (1885). Where an ordinance re- served the right to the city coun- cil to "take away the franchise,'' for failure to build within a speci- fied time, it has been decided that Lhe requirement to build was a condition subsequent, and that the right of way vested at once in the company, subject to forfeiture by judicial proceedings. Hovelman v. Kansas City Horse R. R. Co., 79 Mo. 632, (1883). " In California the work of con- struction must be commenced with- in one year, and completed within three years, from the date of the ordinance granting the right of way. Failure to comply with these provisions works a forfeiture of the right of way as well as of the franchise, unless the uncompleted portion is abandoned by the cor- poration with the consent of the authorities granting the right of way, such abandonment and con- sent to be in writing. Cal. Civ. Code, (1885), sec. 502. To work a forfeiture under this section the failure to commence work within a year and the failure to complete within three years thereafter must be united. Omnibus R. R. Co. v. Baldwin, 57 Cal. 160, (1881). In Los Angeles Ry. Co. v. Los Angeles, 152 Cal. 242, 92 Pac. Rep. 490, (1908), it was held that failure to complete the work within the time prescribed operates as an ipso facto forfeiture, and that the mu- nicipality cannot be restrained from interfering with laying tracks thereon or from removing tracks unlawfully laid. Under the Massachusetts statute a company failing to build and put in operation some portion of its road within eighteen months after the date of the certificate of its establishment, forfeits its corpo- rate powers; and if any company discontinues the use of any part of its track for six months, the same shall be taken up at its ex- pense, Mass. Pub. Stat, (1882), p. 646, sees. 20, 25. Michigan provides that the com- pany shall cease to be a body cor- porate unless it commences the work of construction, and expends therein at least ten per cent, of its capital stock, within one year from the time of filing its articles of association. Mich. An. Stat., (1882), sec. 3562. In New Jersey one-half of the road must be completed and put in operation within one year from the date of the ordinance establishing the route. N. J. Supp. (1886), p. 365, sec. 10. In New York, where the fran- chise is sold to the bidder offering to give the largest percentage per annum of the gross receipts, the construction must be commenced within one year, and completed within three years, from the date of sale. N. Y. Rev. Stat., (1889), p. 1817, sec. 1. Pennsylvania requires the work to be commenced within one year, and completed within two years, after the consent of the local authorities is obtained, unless the 8 47.] CHAETEE COWSTEUCTIOWj rOEFEITUKE^ EENEWAL. ment may be a conditional limitation or a condition subsequent, to be determined in each case by the provisions of the grant; if it be the former, a substantial failure to comply operates ipso facto to extinguish all the dependent privileges, but if it be the latter, the franchise conferred still exists, subject, however, to the en- forcement of appropriate penalties at common law or under the statute.^* time be extended. Pa. Laws of 1889, p. 217, sec. 16. But the local authorities can either curtail or extend the time. In such case, "time is of the es- sence of the contract." Plymouth Township v. Chestnut Hill & N. Ry. Co. 168 Pa. St. 181, 32 Atl. Rep. 19, (1895). In Ontario the failure of a com- pany to regularly use the whole or any part of its railways for six months will cause a forfeiture of the part not used. Rev. Stat, of Ontario, (1887), p. 688. These are but illustrations of various provisions and require- ments on this subject, which, If we include those contained in munic- ipal ordinances, are of almost in- finite variety. See Township of Hamtramck v. Rapid Ry. Co., 122 Mich. 472, (1899), which construes the word "completion." " McNeil V. Chicago City Ry. Co., 61 111. 150, (1871); Ft. Worth Ry. Co. V. Rosedale St. Ry. Co., 68 Tex. 169, (1887); Atchison St. Ry. Co. V. Nave, 38 Kan. 744, 5 Am. St. Rep. 800, (1888); Gulf City Ry. Co. V. Gulf City St. Ry. Co., 63 Tex. 529, (1885); City of Detroit v. Detroit City Ry. Co., 37 Mich. 558, (1877); St. Ry. Co. of Grand Rapids v. West Side St. Ry. Co., 48 Mich. 433, 7 Am. & Bng. Ry. Cas. 95, (1882); New York & Harlem R. R. Co. v. Forty- second & Grand St. Ferry Ry. Co., 50 Barb. 285, (1864); In re Brook- lyn, Winfleld & Newton Ry. Co., 72 N. Y. 245. (1878) ; Chicago City Ry. Co. V. Story, 73 111. 541, (1874); City of Chicago v. Chicago & West- ern Indiana R. R. Co., 105 111. 73. (1882) ; Market St Ry. Co. v. Cen- tral Ry. Co., 51 Cal. 583, (1877); Hovelman v. Kansas City Horse R. R. Co., 79 Mo. 632, (1883); People V. Manhattan Co., 9 Wend. 351, (1832) ; Omnibus R. R. Co. v. Bald- win, 57 Cal. 160, 1 Am. & Eng. R. Cas. 316, (1881); In re Brooklyn Elevated R. R. Co., 9 Ry. & Corp. L. J. 264, holding that failure to build under an ordinance providing that the company is to forfeit the right acquired by the act, does not per se divest the company of the franchise. Brooklyn Central R. R. Co. V. Brooklyn City R. R. Co., 32 Barb. 360, (1860). A company required by its char- ter, on penalty of forfeiture, to expend in construction ten per cent, of the amount of its capital stock within five years from the filing of its articles of association, does not fulfill its obligation by leasing a portion of its route to another company, on which the lessee is to lay tracks as a part of its own route; and a reservation in such a lease of a right in the les- sor to run cars over a portion of the tracks laid by the lessee, on payment of a sum specified for such use, does not avail to give the lessor the benefit of expenditures by the lessee. In re Brooklyn, 90 THE LAW OF STREET EAILWAYS. [§48. § 48. How time should be computed ^In a case in New York, the Court of Appeals construed the provision of the "Kapid Tran- Wlnfield & Newton Ry. Co., 81 N. Y. 69, 11880). See State ex rel. Spartanburg v. Spart., Clifton & Glendale E. R., 51 S. C. 129, 28 S. E. Rep. 145, (1897), where the provision of the statute was as follows: "That all powers, rights, privileges, and im- munities hereby granted shall cease, determine and be void, un- less," etc. In an action to obtain a decree of forfeiture the court construed the statute as follows: "We think the happening of the specified event or contingency — failure to complete the railroad as prescribed — was merely a cause of forfeiture and not an express limi- tation of the existence of the cor- poration until the happening of such event or contingency." See also Mayor of Houston v. Houston & Magnolia Pk. Ry., 84 Tex. 581, 19 S. W. Rep. 786, (1892), where an ordinance required part of the road to be constructed in one year, and part in two years, and that the part of the road not occupied at the expiration of the stipulated time should be considered as abandoned, and where it was held that that part not occupied within the time stipulated, was forfeited. Accord, Grey v. New York & Phil. Trac. Co., 56 N. J. Eq. 463, 40 Atl. Rep. 21, (1898). See also Burke v. Carbon- dale Trac. Co., 15 Pa. C. C. Rep. 159, (1894). As to the question whether or not, upon default by the company to build tue road within a specified time, a certified check or bond de- posited In the city treasury to bind the company, is a penalty or liqui- dated damages, see Mniitlng v. New. Balto., 127 Mich. 66, (1901). See also West Springfield & Aga- wam St. Ry. v. Bodurtha, 181 Mass. 583, (1902) ; Borough of Carlstadt v. City Trust Co., 69 N. J. L. 44, (1903); New Orleans R. R. v. City of New Orleans, 44 La. Ann. 748, 11 So. Rep. 77, (1892). The sum forfeited by the city be- cause of failure of the company to build an electric light plant and street railway cannot be given to its successor by ordinance, on com- pletion of the work originally im- posed. Jacksonville Blec. Ry., L. & P. Co. V. Adams, 79 Miss. 408, 30 So. Rep. 694, (1901). In Los Angeles Ry. Co. v. Los Angeles, 152 Cal. 242, 92 Pac. Rep. 490, (1908), it was held that failure to complete the work within the time prescribed operated as an ipso facto forfeiture, and that the mu- nicipality cannot be restrained from interfering with laying tracks thereon or from removing tracks unlawfully laid. Under Railroad Laws of New York (Laws 1890, p. 1084, c. 565), sec. 5, and sec. 99, art. 4, p. 1112, failure to construct within time specified is, ipso facto, a for- feiture, the law being self-execu- tory. In re Brooklyn R. R., 94 N. Y. Supp. 113, 106 App. Div. (N. Y.) 240, (1905). Where a company accepted the franchise but took no other action until after the expiration of the time prescribed, it was held that the franchise ceased to exist, and that if the company subsequently desired to build the road, all the steps for obtaining an original franchise would have to be re- peated. Manton v. South Shore Co., 106 N. Y. Supp. 82, 121 App. Dlv, (N. Y.) 410, (1908). §4>'<. ] rilAl;TJ5K CO.\KTRtlCTIO.V. FOliFEITUKE, BENKWAI.. 91 sit Act" (Chap. 606, Laws of 1875) relating to elevated railroads, requiring the commissioners appointed by the mayor of the city to determine the time within which the proposed railroad or rail- way, or portions thereof, should be constructed. The court decided that the corporation should be limited only to the time during which it was possible for it to prosecute the work, exclud- ing the time when legal barriers existed to the construction. The commissioners appointed by the mayor of ISTew York city specified the time in which each of twenty-nine different routes located by them should be completed, but provided that the time should begin to run from the date of obtaining the requisite consent of the property owners and of the local authorities, and, in case of failure to procure such consents, from the date of the confirmation of the report of commissioners appointed by the court, and also provided that the time unavoidably consumed by the pendency of legal proceedings or the interference of the public authorities should not be deemed a part of the time limited. This was held to be a substantial compliance with the act.^^ If the time allowed for construction is to be computed from the time of procuring certain consents essential to the validity of the franchise, it is the duty of the grantee to use reasonable diligence to obtain the con- sents; and, therefore, in a proceeding to declare a forfeiture the "New York Cable Co. v. City of In Toledo v. Toledo Co., 25 Ohio New York, 104 N. Y. 1, (1887); but C. C. 441, (1904), it was held that the court held that the articles of a suit for a forfeiture must be pre- incorporation prepared by the com- ceded by action of the city council, missioners were invalid because The statute of New York (Laws they provided only for a forfeiture of N. Y., 1875, Ch. 598, and, laws of of the franchise on the route 1879, Ch. 350) which extended the where the tracks had not been laid, time for building railroads and instead of a total forfeiture for provided that "failure by any rail- such default. road company to construct its rail- To the point that from the time roads, heretofore, shall not cause allowed for the construction of the a forfeiture of its corporate pow- road should be deducted delays oc- ers," has been held not to apply to casioned by legal proceedings or a company which wilfully and in- the interference by public authori- tentionally falls to construct its ties in refusing to give their con- road when able to do so. People sent, see also In re Kings County v. Broadway R. R. Co. of Brooklyn, Elevated R. R. Co., 41 Hun 425, 126 N. Y. 29, 30, 10 Ry. & Corp. (1886); City of Chicago v. Chicago, L. J. 89, (1891); Dusenberry v. New Western & Indiana R. R. Co., 105 York, Westchester & Conn. Trac. 111. 73, (1882). Co., 46 App. Div. (N. Y.) 267, (1899). 92 THE LAW OF STREET RAILWAYS. [§49. fact that tlie consents have not been obtained is no defense unless it also appears that the company has exercised due diligence in attempting to procure them.^® § 49. The right of forfeiture — ^how and by whom enforced — A cause of forfeiture by a corporation of its franchise cannot be taken advantage of or enforced against it collaterally or inci- dentally, or in any other mode than by a direct proceeding for that purpose against the corporation.®'' Wor can corporate fran- chises be declared forfeited or lapsed to the commonwealth by bill in equity.®^ An ordinance granting a franchise to occupy and use public streets has the force and effect of a statute; and for the violation of the provisions of the ordinance an action in quo warranto may be maintained in the name of the state to forfeit the charter."' If the right to enforce a forfeiture is of purely ™ People V. Broadway R. R. Co., supra. In an earlier case decided by the court of common pleas con- struing the same act it was held that the rapid transit commission- ers had no right to designate a period of time after the consents required by the act had been ob- tained. New York Cable Ry. Co. V. Forty-second St., Manhattan St. & Nicholas Ave. Ry. Co., 13 Daly 118, (1885). To the same effect see In re New York Cable Ry. Co., 40 Hun 1, (1886), in which it was held also that the privileges and fran- chises of the company were not placed beyond the control of the legislature by the fact that the com- pany had paid to the commission- ers the sum of $57,000 for their per diem allowance and for necessary expenses. See Blocki v. People, 220 111. 444, 77 N. B. Rep. 172, (1906), where the company sought to excuse its failure to construct within the stip- ulated time, on the ground that an injunction had issued restraining it from building an unimportant connecting line, which injunction in no way prevented it from prose- cuting its work on its main line. Accord, State v. Latrobe, 81 Md. 222, 31 Atl. Rep. 788, (1895). See also Toledo v. Toledo R. R. & Light Co., 25 Ohio C. C. 441, (1904), where the time fixed for the completion of the road was to date from the grad- ing of the streets by the city, and because the defective grading pre- vented the construction of the tracks it was held that the right to construct had not been forfeited. ^'Attorney-General v. Chicago & Evanston R. R. Co., 112 111. 520, (1884). ''Lejee v. Continental Pass. Ry. Co., 10 Phila. 362, (1873). ^ State ex rel. Attorney-General V. Madison St. Ry. Co., 72 Wis. 612, (1888). In an action of quo warranto to forfeit defendant's charter, defend- ant contended that proceedings should have been instituted by the city in its own name, according to provisions in. the ordinance, but the court held that "the sovereign power of the state to proceed against de- fendant company by quo warranto § 49.J CHAETEE COlTSTEtrCTION-^ FOEFEITTJEE, EENEWAL. 93 statutory creation, no process or procedure can be made use of for that purpose other than that which the statute itself prescribes ; and when the statute provides that the remedy must be pursued in a particular court no other court has jurisdiction.^" A municipal for forfeiture of its franchise even at relation of the city could not he contracted away or in any way abridged by the city." State v. East Fifth St. Ry., 140 Mo. 539, (1897). "While the state has delegated to the city the authority to grant franchises of this character, it has not granted to the city power to institute and maintain an action to forfeit the franchise for misuse or abuse. It has reserved to itself, acting through its attorney-gen- eral, etc., this very important and delicate right and duty." Mil- waukee Elec. R. & L. Co. v. Mil- waukee, 95 Wis. 39, 69 N. W. Rep. 794, 6 Am. & Eng. R. Cas. (N. S.) 411, 36 L. R. A. 45, (1897). But see Springfield v. Robberson Ave. R. R., 69 Mo. App. 514, (1897), where the city was held to be the proper party to petition the court by hill in equity to declare the com- pany's grant null and void. The court, however, declared the com- pany's breach to be "a dangerous and continuing nuisance," and held that as the city "may attach condi- tions necessary to protect itself from pecuniary liability" and as it "would be primarily liable for in- juries from misuse of its streets," it was the proper party to sue for the breach. See also Newport News & O. P. Ry. & Electric Co. v. Hampton Roads Ry. & Electric Co., 102 Va. 795, 47 S. B. Rep. 839, (1904), where a competitor was not permitted to take advantage of an alleged fail- ure to complete the road within the time named. Accord, Philada. & Merion Ry. Co.'s Petition, 187 Pa. St. 123, 40 Atl. Rep. 967, (1898). ""Reed v. Omnibus R. R. Co., 33 Cal. 212, (1867). By an act of the California legislature, under which the company claimed its franchise, the fare for passengers was limited to five cents, when two or more passages or tickets for passages were purchased; and by an act passed April 14, 1863, (about one year after the original act) it was provided that "if any street rail- road company shall demand or re- ceive any greater sum, it shall for- feit to the person from whom such demand shall be made or such sum shall be received, as well as from the state of California, for every such demand or receipt, the sum of two hundred dollars, to be re- covered in a civil action in any Justice's court in the county, or city and county in which such street railroad is situated." The action was brought before a justice of the peace to recover forty thou- sand dollars, the aggregate of two hundred distinct forfeitures under the act, and contained two hun- dred counts based upon alleged violations of the statute. It was held that the district court had no jurisdiction of an action to recover a forfeiture, as the act prescribing the forfeiture provided that the ac- tion for its recovery should be brought in a justice's court. It was also decided that the act was unconstitutional, the right and remedy being so interblended that they could not be separated, a jus- tice of the peace having no jurisdlc- 94 THE LAW OF STREET EAILWAYS. [§49. corporation has the same right to question the corporate existence and rights of a street railway company seeking to use its streets, as a private owner would have where the use of his property is sought.*^ But the municipal authorities cannot legally substitute their arbitrary judgment for a judicial declaration of forfeiture. If they threaten to destroy or remove the railway or to interfere with the re-laying of tracks previously torn up by them, without first obtaining a judicial determination of their rights in the proper forum, they may be enjoined.®^ tion under the constitution of that state. "^Broolclyn Steam Transit Co. v. City of Broolclyn, 78 N. Y. 524, (1879). The city authorities may insist upon or waive a forfeiture of a franchise. Hamilton St. Ry. & Electric Co. v. Hamilton & Linden- wall Electric Transit Co., 5 Ohio C. C. 319, (1891). "^ On a showing of such a threat- ened invasion of private property rights, a court of equity will not re- mit the plaintiff to an action at law in which it would be difficult, if not impossible, to estimate the loss accruing from the destruction of the franchise. Easton, South Easton & West End Pass. Ry. Co. V. Easton, 133 Pa. St. 505, (1890), in which the court criticised the action of the city officials in very vigorous terms. A similar ruling was made in Asheville St. Ry. Co. V. City of Asheville, 109 N. C. 688, 14 S. B. Rep. 316, (1892), a suit to prevent the chief of police from tearing up the tracks. In Stewart v. Village of Ashtabula, 98 Fed. Rep. 516, (1899), the court held that the non-compliance by the railway company with the terms of the charter having been judicially determined, and the ordinance grant- ing the franchise having reserved the right in the city in the event of such non-compliance to remove the tracks, etc., the railway com- pany cannot maintain an action for damages against the city for the removal of tracks from the streets with as little damage to the prop- erty removed as possible. Under the reservation of the right to sell to another the privi- lege in the street, in case of fail- ure to construct within the time specified, the city cannot sell the personal property and fixtures of the private corporation, but only the right of way. Young v. Maga- zine St. R. R. Co., 24 La. Ann. 53, (1872). See Tower v. Tower & Soudan St. Ry., 68 Minn. 500, 71 N. W. Rep. 691, 38 L. R. A. 541, (1897), where it was held that the title to rails, ties, and roadbed, as well as the franchise, had been forfeited. But see Newark Pass. Ry. v. East Orange, 53 N. J. Eq. 248, 31 Atl. Rep. X22, (1895), where the re- moval would work "irreparable in- jury to plalntiffi and discommode the public," removal was enjoined pending final hearing of the cause. See also Belleville v. Citiz. Horse Ry. Co., 152 111. 171, 38 N. B. Rep. 584, 26 L. R. A. 681, (1894); Akron v. Northern Ohio Trac. & L. Co., 27 Ohio C. C. 536, (1906); Spring City Borough v. Montgom- '".J CilAHrKJi (.'U.NSTiircnO.N'^ FOEl-'lilTUKJi^ UliAEWAL. § 50. Who may waive the forfeiture and how waiver may be expressed — The public authority which is empowered to grant a license or franchise and attach thereto reasonable conditions may waive its right to enforce a forfeiture for non-compliance with the conditions of the grant, unless restrained by some express consti- tutional or statutory provision. The right to enforce a forfeiture implies the right to waive. If the statute in granting the fran- chise imposes as a limitation or condition, that a certain thing shall be completed or a certain act done within a given time, no other power can waive the forfeiture arising from non-perform- ance of the condition.** But the local authorities may waive the performance of conditions imposed by them, not only where the company derives all its rights in the streets directly from the city council,** but also where it accepts a franchise from the state to take effect only upon the consent of the municipal authorities and subject to such conditions as they may exact.*^ The remission ery Ry., 35 Pa. Super. Ct. 533, (1908). " tJatil the state does thus inter- vene, a private individual cannot set up the forfeiture or in any way challenge the corporate existence with its full vitality. In re Brook- lyn Elevated R. R. Co., 125 N. Y. 434, (1891) ; State ex rel. Attorney- General v. Fagan, 22 La. Ann. 545, (1870); Bank of Niagara v. John- son, 8 Wend. 645, (1832) ; People v. Manhattan Co., 9 Wend. 351, (1832); In re New York Elevated R. R. Co., 70 N. Y. 327, (1877) ; Chi- cago City Ry. Co. v. People, 73 111. 541, (1874); In re Kings County Elevated R. R. Co., 105 N. Y. 97, (1887); Day v. Ogdensburgh & Lake Champlain R. R. Co., 107 N. Y. 129, (1887); Moore v. Brooklyn City R. R. Co., 108 N. Y. 98, (1888) ; Farnsworth v. Minnesota & Pacific R. R. Co., 92 U. S. 49, (1875) ; Van Wyck v. Knevals, 106 V. S. 360, (1882); In re Brooklyn, Winfleld & Newtown R. R. Co., 72 N. Y. 245, (1878) ; Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 524, (1879). " Hamilton St. Ry. & Electric Co. V. Hamilton & Lindenwall Electric Transit Co., 5 Ohio C. C. 319, (1891); Kent v. City of Bingham, 88 N. Y. Supp. 34, 94 App. Div. (N. Y.) 522, (1904). Where a company constructs its road after the time prescribed in the ordinance has expired, without interference on the part of the municipality, the latter is estopped from forfeiting the grant, and a subsequent grantee of the same privileges, in a suit for damages against the municipality, cannot set up any adverse claim to the priv- ilege granted. New Orleans R. R. Co. V. New Orleans, 44 La. Ann. 748, 11 So. Rep. 77, (1892). See also Bridgewater v. Beaver Valley Trac. Co., 214 Pa. St. 343, 63 Atl. Rep. 796, (1906). °° In a case where a company was authorized by its charter to con- struct and maintain its railway along such streets as the city coun- 96 THE LAW OF STREET RAILWAYS. [§50. of a forfeiture is not a waiver ; therefore, tlie legislature of a state, although inhibited by the constitution from remitting a forfeiture for failure to construct a street railway within the time limited by the charter, may nevertheless waive the forfeiture; and the waiver may be expressed and become effectual by the enactment of a subsequent general statute which in effect, although not in express terms, extends the franchise.'* oil might authorize, and in such manner and upon such terms and conditions as might he prescrlhed, and a grant was made to lay a single track along certain streets within fifteen months, and the same was constructed half of the way within the time required, it was held that the common council had the right and power to waive the condition as to the time al- lowed for completion, it being a provision in favor of the city to se- cure the public interest. Chicago City Ry. Co. v. People, 73 111. 541, (1870). "A franchise granted by a state when accepted and acted upon, is a contract between the state and the party accepting and acting upon it. Each party to a contract may waive any breach of the same, and we are of the opinion that the state, or anybody granting the fran- chise, may likewise waive any breach of the conditions of the same, for the state or body grant- ing the franchise is under no legal obligation to insist upon a forfeit- ure, and when to do so would not result in any benefit, but in in- jury, no good reason can be as- signed why the right to waive the forfeiture should not exist. Any- thing which constitutes a waiver of a breach of a contract should constitute a waiver of a breach of the conditions of a franchise." Dern v. Salt Lake City R. R. Co., 19 Utah 46, 56 Pac. Rep. 556, (1899). The resolution of highway com- missioners extending the time for the construction of a railroad on a street is not a waiver of a provision in the original franchise requiring the giving of a bond. South Shore Trac. Co. v. Brookhaven, 102 N. Y. Supp. 75, 116 App. Dlv. (N. Y.) 924, (1907). The constitution of California, Art. XII, sec. 7, provides that no act shall be passed extending the right of any corporation or remit- ting the forfeiture of a franchise. During the pendency of an action to forfeit the charter of a street railway company operated under a city ordinance, an act was passed amending sec. 497 of the civil code of that state, so as to invest municipal corporations with power to authorize street railways to use electricity as a motive power, and another ratifying existing ordi- nances granting such power. Con- struing these acts, the court held that they did not extend the com- pany's franchise or charter, and, as there had been no decree of for- feiture, there was none to remit, and, therefore, the acts were not repugnant to the constitution. People V. Los Angeles Electric Ry. Co., 91 Gal. 338, 27 Pac. Rep. 673, (1891). " In re New York Elevated R. R. Co., 3 Abb. N. C. 401, (1877), af- § 51. J CHARTER CONSTRUCTION^ FORFBITTJEE^ RENEWAL. 97 § 51. Non-user— abandcmment — A franchise to occupy and use streets for railway purposes may be lost by non-user, and the forfeiture, where not declared by statute or ordinance, may be en- forced by proceedings in quo warranto. The right at common law to a forfeiture for abandonment of the franchise must depend upon the peculiar facts and circumstances of each case. Length of time alone may not be sufficient evidence of the abandonment; but it win be more readily presumed where the easement is granted for the public benefit than where it is held for a private use. The fact that the performance of a stipulated condition by a railway company will put it to great inconvenience and expense is not necessarily an excuse for the non-performance of its agree- ment.®^ From the best considered cases may be deduced the firming 7 Hurt 239, (1876); People v. Los Angeles Electric Ry. Co., supra. Tlie California civil code, sec. 502, provides that the work on a street railway must be commenced within one year from the date of the or- dinance granting the right of way and the filing of articles of Incor- poration, and the same must be completed within three years there- after, and that a failure to com- ply with these provisions works a forfeiture of the right of way as well as of the franchise, un- less the uncompleted portion Is abandoned by the corporation with the consent of the authorities granting the right of way, such abandonment and consent being in writing. Said Sharpstein, J.: "In this case there has not been any final adjudication of forfeiture. Therefore the act ratifying and confirming the ordinance granting the franchise to defendant is not an act remitting a forfeiture. But it is, in our opinion, an act waiv- ing a forfeiture. It certainly is an act showing an intention on the part of the state that the franchise shall continue in existence, and such an act will be considered an 7 absolute waiver of any existing right to enforce a forfeiture of defendant's franchise. In re New York Elevated R. R. Co., 70 N. Y. 327, (1877); Morawetz Priv. Corp. 655, and cases cited. We think the constitution does not prohibit such a waiver and that the state has waived its right to enforce a for- feiture of the defendant's fran- chise." See also Hamilton v. New York & Harlem R. R. Co., 9 Paige 171, (1841). "Commissioners v. South Bend Mishawaka St. Ry. Co., 118 Ind. 68, (1888). "That a portion is unprofitable, or that a portion is more difficult to operate are not valid reasons for non-performance. Its [the com- pany's] application to the city was for location of its tracks over the whole route." Bridgeton v. Bridge- ton & Millville Trac. Co., 62 N. J. L. 592, 43 Atl. Rep. 715, 45 L. R. A. 837, (1898). In this case mandamus was awarded. "Where the company became in- solveot and was unable to operate its system and it was doubtful whether it would ever be able to US TiiE LAW OJT STKiiKT KAILWAYS. L§5i. general rule, that courts, when called upon to adjudge a for- feiture for non-user, are much more lenient towards the grantee in cases where there has been a partial exercise of the franchise, as, for instance, where the right to operate two tracks has been exer- cised to the extent of constructing and operating one, than in those cases where there has been a total failure to enjoy the privi- leges conferred or to discharge the duties imposed.®* Where a operate, the fraachise was forfeited. State V. East Fifth St. Ry., 140 Mo. 539, (1897). A hill was iiled to enjoin the City of Memphis from removing a rail- way track from a certain street in that city. The ordinance granting the right to use such street for rail- way purposes specifically provided that the "cars should be drawn over the route by horse or other animal power." Owing to the grade of the street, it was found that animal power was impossible, and for twenty-two years the route was idle save for the running of a hand car at long intervals. The bill was dismissed, on the ground that: "The impossibility of enjoy- ing the easement granted operates to bring it to an end through the inherent limitation of the grant itself." Southern Ry. Co. v. Mem- phis, 97 Fed. Rep. 819, (1899). Where a company is granted "the privilege" to build and oper- ate a railway system, while it can- not be compelled by mandamus to operate, since to do so is permis- sive and not obligatory, its fran- chise can, nevertheless, be for- feited for non-user. San Antonio St. Ry. V. Texas, 90 Tex. 520, 39 S. W. Rep. 926, 6 Am. & Bng. R. Cas. (N. S.) 650, 35 L. R. A. 662, (1897); State v. Helena P. & L. Co. 22 Mont. 391, 56 Pac. Rep. 685, 44 L. R. A. 692, (1899). "^ In one case non-user for more than ten years without the consent of the state or local authorities was held to be sufficient evidence of abandonment, although the pat- ronage of the abandoned routes was not sufficient to recompense the company for the outlay nec- essary to build, equip and operate them. Henderson v. Central Pass. Ry. Co., and Ceoitral Pass. Ry. Co. V. Louisville City Ry. Co., 21 Fed. Rep. 358, (1884). See East St. Louis C. Ry. Co. v. St. Louis, 182 111. 433, 55 N. E. Rep. 533, (1899), where the company was held to have lost its rights in the street by its laches, having failed for more than ten years to con- struct its road; and Louisville Trust Co. V. Cincinnati, 76 Fed. Rep. 296, 22 C. C. A. 334, (1896), in which a similar ruling was made where there was a failure to operate for more than twenty years. In another case a company, being duly authorized by the state and local authorities, constructed and operated a double track for several years. It then took up one of the tracks and run its cars over a single track in the same street for ten years and then relaid the track which it had removed. In a suit brought by the city to enjoin the company from relaying and operating its road over a double track, it was decided that the fail- ure of the company to use both tracks did not constitute an aban- donment of its franchise. Heston- ville, Mantua & Fairmount Ry. Co. § 61. J CHAETEE COJSrSTEUCTION^ FOEFEITUEE^ EENEWAL. 99 company is prevented from constructing its track by an injunction V. City of Philadelphia, 89 Pa. St. 210, (1879). The court held that it was merely a change in the mode of exercising a right given by the state, and not an abandonment of that right. In another case it was decided that the failure for eleven years to exercise the right to construct and operate an op- tional circuit over another road was such a proof of abandonment as to defeat the right as against other companies to which subse- quent grants had been made by the legislature. Girard College Pass. R. R. Co. V. Thirteenth & Fifteenth Sts. & Union Pass. Ry. Co., 7 Phila. 620, (1869). Under an ordinance passed in 1863, authorizing a company to construct a single track, with turn- outs and switches, "with the power and privilege to said company to construct double tracks," the com- pany constructed a line of single track, with turnouts and switches, which it used for twenty-five years, and then sought to avail itself of the original grant and construct a double track. In a suit by an owner of abutting property to en- join the construction of the double track, on the ground that the com- pany had lost such right by non- user, it was held that when once the track was laid and the road in operation within the appointed time, all the franchises or privi- leges conferred by the ordinances attached, to be exercised when the exigencies of the business appeared to demand such exercise; that the right to construct a double track was appurtenant to the franchise to operate a single track road, and that, as both were sanctioned by the municipal authorities, the es- tablishment of the line in either form would not impair the right of the company to afterward change to the other form, if occasion re- quired, there being no limitation in that regard in the ordinance itself. Ransom v. Citizens' Ry. Co., 104 Mo. 375, 16 S. W. Rep. 415, 7 St. Ry. Gaz. 6, (1891). See also Dunmore v. Scranton Ry. Co., 34 Pa. Super. Ct. 294, (1908), where it was held that a company with power to construct "a railway with one or more tracks" does not exhaust its power by the construction of a single track rail- way, but may, more than three years later, construct a double track railway to provide for the in- creasing needs of the public. In a Wisconsin case, however, a company was granted the right to build a single or double track line, provided the entire line was com- pleted before a specified date. It was decided that the company had the option to build either a single or a double track within the speci- fied time, that its exercise of that option by building a single track line exhausted its rights under the ordinance, and that it could not, after the expiration of the time limited, lay additional tracks, and thereby convert its line wholly or partially into a double track line. Eastern Wis. Ry. & Light Co. V. Winnebago Trac. Co., 126 Wis. 179, 105 N. W. Rep. 571, (1905). A company which has received permission from a borough to lay two tracks on a street, may, in the absence of any provision to the contrary in the ordinance giving consent, take up one track and re- move it entirely, but cannot change the location of the other without the consent of the borough. Sha- 100 THE LAW OF STREET EAILWAYS. [§51. issued at the instance of a third party, that fact may constitute a good defense to a proceeding to forfeit its charter for a voluntary mokin Borough v. Shamokin & Mt. C. Elec. Ry. Co., 196 Pa. St. 166, 46 Atl. Rep. 382, (1900). When a company has constructed its road within the period limited by law it may subsequently con- struct from time to time such sidings, switches, etc., as may be necessary for the proper operation of its railway. The right to con- struct such switches or sidings is not forfeited because It was not exercised within the period limited for the construction of the road. Pottsville Borough v. People's Ry. Co., 148 Pa. St. 175, 23 Atl. Rep. 900, (1892). See also sec. 61, post; People's Pass. Ry. Co. v. Philadel- phia, 14 Phlla. 231, (1880); Phila- delphia, Wilmington & Baltimore R. R. Co. V. Williams, 54 Pa. St. 103, (1867). In the latter case the right to construct an additional track was held in abeyance for more than thirty years. See also Black V. Philadelphia & Reading R. R. Co., 58 Pa. St. 249, (1868); People's Pass. Ry. Co. v. Baldwin, 14 Phila. 23, (1880). A miunicipality sold to a railroad company, for value, the right to construct a street railroad from the track of a railroad company along a route specified, the company be- ing allowed one year to complete its road. Its track, as constructed, terminated twelve feet from the track of the railroad company in- stead of extending to it, but this space would be occupied by the part of the car forward of the for- ward truck, and the horses. The cars were stopped at the end of the track, the horses were transferred to the other end of the car, and the car and horses remained there in the street until the time for begin- ning the trip. If the rails were carried to the railroad track, they would connect nearly on the line of the street. The street was sixty-five feet wide, forty-four feet between the curbs, and was one of the principal thoroughfares. In an action brought within a year to restrain such use of the road and the making of the terminus at the place mentioned, and waiting there to change horses and take passen- gers, held, that the municipality was not entitled to such relief. City of Blmira v. Maple Ave. R. R. Co., 4 N. Y. Supp. 943, (1889). In any case an abandonment must be shown by an unequivocal act. "Any fact relied on to show abandonment should be more clear, unequivocal and decisive than otherwise might be required." Cit- izens' St. Ry. Co. V. Memphis, 53 Fed. Rep. 715, (1893). Where a company sought to hold its franchise by running one car a day, its franchise was forfeited for non-user. People v. Suter St Ry. Co., 117 Cal. 604, 49 Pac. Rep. 736, (1897). But see Forty-second St. Co. v. Cantor, 93 N. T. Supp. 943, 104 App. Div. (N. Y.) 476, (1905), holding that the operation of only one car a day for several months and none at all for several days "in times of snowfall" did not show an aban- donment of the route. The Camden Horse R. R. Co. was "empowered to build a railroad or railroads on any public road or highway in the city of Camden." The company had constructed a road over one route, and was about to build on another, when a compet- itive company interfered. Held: "There is nothing in the case tend- ing to show that it (the Horse R. § 52.J CHAETEE CONSTEUCTION, FOEFEITUEE^ EENEWAI.. , 10f "^ abandonment of its franchise.** But the permission given b;^ a street railway company to private individuals to use its w^fe'^lE-oJ^^ the transfer of freight, where the arrangement is permaneilt- or long continued and although the company reserves the right to use its road as a passenger line, has been held to be an abandonment of its franchise which was granted for public use only.''" § 52. Misuser of the franchise — failure to construct and oper- ate in the manner required by charter — The failure to construct and operate a street railway according to the terms and conditions of the charter under which the right of way is granted may be a electricity. A suit by abutting own- ers to enjoin the laying of tracks by tlie company for its electric cars was R. Co.) neglected this territory and left it without railway service after its population warranted the expense of the necessary plant. The legislature, in making this grant, must be presumed to have understood that towns and cities grow and spread by degrees and not per saltum." N. J. Trac. Co. v. Camden Horse R. R. Co., 52 N. J. Bq. 452, 29 Atl. Rep. 333, 1 Am. & Eng. R. Cas. (N. S.) 132, (1894). Where a company having a fran- chise to furnish electric light and operate a railway system failed to exercise its right to furnish electric light, such failure was held not to furnish ground for forfeiture of its right to operate a street railway. Illinois Trust & Sav. Bank v. Doud, 105 Fed. Rep. 123, (1900). A street railway was not oper- ated on two blocks during four years and eight months, during a period of great industrial depres- sion and of extraordinary financial difiaculties on the part of its suc- cessive owners. During that time the rails were taken up with the knowledge of the company, and the street was paved by the city, but the poles and wires were left in place. It was shown that the old tracks that were removed were useless to the company because of the change of motive power to dismissed on the ground that "There has been no cesser to use ac- companied by any act clearly in- dicating an intention to abandon the right. The non-user has not existed for such a length of time, or under such circumstances that a surrender and acceptance of the franchise can be presumed." Wright V. Milwaukee Ry. Co., 95 Wis. 29, 69 N. W. Rep. 791, (1897). See also Detroit & Birming. Plank Rd. v. Detroit Ry. Co., 103 Mich. 585, 61 N. W. Rep. 880, (1895) ; Trelford v. Coney Is. R. R. Co., 6 App. Div. (N. Y.) 204, (1896). ^ State ex rel. St. Charles St. R. R. Co. V. Cockrem, 25 La. Ann. 356, (1873) ; Newport News Co. v. Hamp- ton Roads Co., 102 Va. 795, 47 S. E. Rep. 839, (1904). See Toledo v. Toledo R. R. & Light Co., 25 Ohio C. C. 441, (1904), where the time fixed for the com- pletion of the road was to date from the grading of the streets by the city, and it was held that there was no forfeiture because the con- struction of the road was delayed by such defective grading. '"Fanning v. Osborne, 102 N. Y. 441, (1886). 102 TIJ-E LAW OF STKKKT KAIJLWAYS. [§52. sufficient ground for the forfeiture of its franchise in the streets. A slight failure in those res,pects will not be an adequate cause for such proceedings, nor can the forfeiture be based upon a gross failure Avhich is but temporary.^^ In the nature of things, each case must depend upon its own particular facts. But as a general rule it may be stated that if the company grossly fails in the performance of vital duties essential to the efficiency of the service which it is bound to give, such conduct will constitute a misuser of its franchise on account of which it may be forfeited to the state. The right exists at common law, and may be asserted not only for the violation of express charter duties, but also for a wanton disregard of regulations imposed by the state or munici- pality in the exercise of their reseiwed powers.'^^ " During a general street rail- way strike in New York City, in January, 1889, several of the com- panies were unatle to run their cars. Subsequently an attempt was made to annul the charter of one of the companies, on the ground, among others, that it had not operated its road as required by law. Commenting on this claim, the court said; "That the defend- ant company did not run its trains for five days shows merely an omis- sion to use its powers, not an abuse of them. An omission to run its trains might be an incident in the conduct of a railroad company en- gaged in an abuse of its powers, but does not alone constitute such abuse; and where that Is not alleged, either in form or sub- stance, the complaint cannot be sustained upon that ground. In People V. BristoU & Rensselaer- ville Turnpike Co., 23 Wend. 236, the court quoted approvingly from a case decided in Maryland the statement, 'nor is it every non- user that will furnish sufficient ground for forfeiture' and added: 'To work a forfeiture there must be something wrong; and not only a wrong but one arising from wil- ful abuse for improper neglect.' Nothing of the kind was alleged in the complaint in this action, nor any fact which necessarily Im- plies actionable misconduct. Cor- porations in this state do not hold their charters by so slender a ten- ure, but have a right to require of those who seek their destruction specific allegations of intentional or voluntary misconduct or such neglect as indicates an indifference to the demands of public duty, un- less the act or omission is made by statute a cause of forfeiture, irre- spective of its intent or character." People v. Atlantic Ave. R. R. Co., 125 N. Y. 513, 517, (1891). '= A very interesting case was de- cided by the supreme court of Wis- consin growing out of the alleged violation of an ordinance contain- ing various provisions as to the construction, equipment and oper- ation of the road. The material allegations of the complaint were in substance as follows: "By an ordinance of the common council of the city of Madison, authority and permission were given to the defendant to lay and maintain, § 52. J CILAB.TEE — co:n-steuctiox, foefeituee^ eenewal. 103 within certain streets of said city, a street railway, wittiin certain specified times, in a good and sub- stantial manner, and in accordance with the approved plans for the construction of any such road, and to obviate as far as possible any obstruction or hindrance to any other purpose or use of said streets; and that the cars to be run on such railway, and other equipments to be used, should be of the best class and style in use on such railways; and that the railroad track and rails should at all times correspond with the actual grade of the streets, and should be so laid and maintained that carriages and other vehicles could easily and freely cross said tracks at all points and in all di- rections without obstruction, and should keep the space between the rails and of one foot outside of them so as not to interfere with travel, in as good condition as the street outside of said tracks and to correspond with the same. The said company was also required by said ordinance to lay and maintain a railway from the intersection of Park street with University avenue, along said avenue to the Fair Grounds, within a certain time mentioned. These and other re- quirements of said ordinance are made conditions of the franchises granted to the company thereby. The company built a railway on the streets and within the time mentioned; but it did not build and has not built and maintained the same in a good and substantial manner, or in accordance with the approved plans for the construction of such railway or with the equip- ments of the best class and style in use on such a railway, in this; that it has used a rail called the 'T' rail, which is not the best and most approved style of rail in the construction of such a railway, but it impairs the use of said streets by reason of its elevation above the surface of the same, and makes it difficult to cross over with car- riages and vehicles to such a de- gree as to be dangerous. The said company has not kept the space be- tween the rails and of one foot out- side to correspond with the grade of the streets, but such spaces have been left depressed considerably below the surface of the streets so as to make the track diffi- cult and dangerous to cross over. The said company has not main- tained a railway from the intersec- tion of Park street and University avenue to the Fair Grounds, but has ceased to use the same, and has abandoned it, leaving the streets in a bad condition; and the company has failed to indemnify or defend the city in and from suits for damages occasioned by such bad condition of said railway and so caused, as required by said or- dinance, and the city is harassed by actions commenced for such cause, and is threatened with many more of such actions." A general demurrer to the complaint was overruled on the ground that the company had offended against the provisions of the law under which it was created by not complying with reasonable rules and regula- tions contained in the ordinance and had therefore forfeited its franchise. State ex rel. Attorney- General v. Madison St. R. R. Co., 72 Wis. 612, 616, (1888). In People v. Suter St. Ry. Co., 317 Cal. 604, 49 Pac. Rep. 736, (1897), it was held that running but one car a day was "a sham pretense of user;" but see Forty-second St. Co. v. Cantor, 93 N. Y. Supp. 943, 104 App. Div. (N. y.) 476, (1905), contra. CHAPTER III. THE CONSTRUCTION AND EQUIPMENT OF STREET RAILWAYS- RIGHTS, DUTIES AND LIABILITIES OP PUBLIC AUTHOR- ITIES AND STREET RAILWAY PROPRIETORS. § 53. The scope of this chapter. 54. Street railways may be con- structed beyond the limits of municipal corporations. 55. Power to determine the route and fix the location of the tracks. 56. Where tracks must be con- structed. 57. Remedy for unauthorized loca- tion. 58. How tracks must be con- structed. 59. Remedy for defective con- struction. 60. Remedy of company to com- pel public officials to locate route. § 61. Optional routes and additional tracks. 62. Relocation of tracks. 63. Extension of original lines. 64. Parallel" and competing lines. 65. Construction and operation of road — ^how duty enforced. 66. Different kinds of motive power classified. 67. What motive power may be used. 68. Silence as to motive power. 69. Change of motive power. 70. Gauge of tracks. 71. Change of grade. 72. What kind of rails may be used. 73. Changes authorized by special act. 74. Operating road on Sunday. § 53. The scope of this chapter A street railway sustains different relations to each of five distinct interests: first, the public in its organized form represented by the state, the county, the town or township and the municipality; second, the members of the traveling public in their use of the highway; third, its passengers; fourth, the owners and occupants of abutting prop- erty, and fifth, the grantees of other franchises. This chapter is limited to a consideration of those questions of location, con- struction and equipment in which the public authorities are directly concerned as the representatives of the state or its sub- ordinate agencies. The rights of adjoining proprietors will be considered in Chaps. lY and VII; the relations of the private corporation to the general traveling public in Chap. XI; the rights, duties and liabilities of the carrier and its passengers in Chap. XII; the questions relating to the joint use of streets and 104 §§ 54, 55. J COITSTETJCTION AND EQUIPMENT. 105 tracks in Chap. V. The operation of the road, considered with reference to the public authorities, and especially the regulation of such use of streets by statute and ordinance, will be reserved for consideration in Chap. VIII. § 54. Street railways may be constructed beyond the limits of municipal corporations.^ § 55. Power to determine the route and fix the location of the tracks — The power to determine what streets may be occupied by railways and to fix the location of the tracks therein rests primarily with the legislature of the state. In the early history of street railway construction this power was not infrequently exercised by special act ; but at present the right of way is almost iiniversally obtained from municipal or other local authorities who are empowered to determine all questions touching the loca- tion and construction of the road. The charter of a street rail- way incorporated under a general law can confer no right to use any street, no matter what may be its proYisions; but under the general power conferred upon cities to control the use of their streets and to prescribe the conditions upon which they may be occupied by street railways, the local authorities have the right to designate the streets which shall be subject to the franchise and iu what particular parts of the streets the tracks shall be laid.^ This power is not affected by a constitutional provision inhibiting the granting of special or exclusive privi- leges, immunities or franchises. Such provisions are limitations upon the power of the legislature, but cannot be construed as a limitation on the power of a municipal corporation to designate streets in which the railway may be constructed and to fix condi- tions upon which it may be operated. This authority may be exercised by the municipality even with reference to a company organized under a charter previously granted by special act.^ ^See Chapter XVI on Interurban 73 111. 541, (1874). Nor do such inhi- Railways. bitlons prevent the legislature from ''Ft. Worth St. Ry. Co. v. Rose- authorizing hy special act changes dale St. Ry. Co., 68 Tex. 169, in motive power, roadbed and equip- ^g87) ment. People v. Long Island R. R. = Chicago City Ry. Co. v People, Co., 60 How. Pr. 395, (1886). 106 THE LAW OF STREET BAILWAYS. [§56. An ordinance granting the franchise for the use of designated streets is void when the route has not been previously established by the authorities and in the manner prescribed by law;* and public officers who are authorized by law to grant the right of way and designate the streets which may be occupied cannot delegate their power to any other officers or to the grantee of the franchise.® § 56. Where tracks must be constructed — The tracks must be constructed in the streets and on the lines which have been designated in the articles of association or fixed by statute or ordinance. Where the streets and lines have been so determined, no other lines can be followed.* No discretion is left either to the local authorities or to the grantee to disregard the location prescribed by statute, either for the supposed convenience of the * "West End & Atlanta St. Ry. Co. V. Atlanta St. Ry. Co., 49 Ga. 151, (1873) ; State ex rel. v. Henderson, 38 Ohio St. 644, (1883). The location by the rapid transit commissioners of New York of the routes projected by a company, so long as it has not obtained the con- sent of the property owners or the local authorities, or the determina- tion of the commissioners appointed by the supreme court, as required by statute, does net confer upon the company such rights in the streets as would entitle it to an injunction against the construction of another railroad therein. New York Cable Ry. Co. V. Forty-second St., Man- hattan & St. Nicholas Ave. Ry. Co., 13 Daly 118, (1885). ° Citizens' St. Ry. Co. v. Jones, 34 Fed. Rep. 579, (1888), holding that the power and duty of determining when and on what streets the pub- lic convenience requires street rail- roads, is devolved by law on the city council; and that body cannot refuse to discharge its lawful functions or devolve them on a street car com- pany, whose action would be con- trolled by its own rather than the public interest. In some jurisdictions the deeision of the mayor and board of alder- men as to location may be appealed from. Thus in New Hampshire the right is given a company to appeal to the railroad commissioners within 15 days after the decision rendered by the mayor and board of aldermen, the decree of the com- missioners affirming or setting aside the location being final. Boston & Maine Ry. Co. v. Mayor and Alder- men of Portsmouth, 71 N. H. 21, (1901). As to the power of public officers to determine the location of tracks, and when their decision is reviewable, see Application of Staten Island Ry. Co., 22 App. Div. (N. Y.) 366, (1897) ; Silsby v. Lyle, 117 Mich. 327, 75 N. W. Rep. 886, (1898). "A corporation required to iile articles of association naming and describing' the streets, avenues or highways in which its road is to be constructed, the place from and to which it is to be laid, and the prox- imate length of its road, has no §50. J CONSTitUOTIO^' AND EQUIPMENT. 107 traveling public or for the benefit of the company in the opera- tion of its railway. Such provisions are not directory merely but are held to be mandatory and to be strictly followed.'' Thia power to construct, operate or own a street railroad beyond or outside of the limits of Its route, as de- scribed in its articles of association, except as it may extend its original line in conformity to law. People ex rel. West Side St. R. R. Co. v. Barnard, 48 Hun 57, (188S). An unauthorized deviation from the prescribed route is a trespass on the land of the abutting owners. Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 36 Atl. Rep. 146, (1897). 'A statute of California (Cal. Civ. Code, sec. 498), provided that the city or town authorities must require street railway companies to construct their tracks "on those portions of the street designated in the ordinance granting the right of way, which must be as nearly as possible in the middle of the street." The ordinance granting the franchise did not prescribe the precise part of the street upon which the track was to be located. It merely provided that the fran- chise be granted to the applicants, "according to their application;" and, while the application named the streets through which the road was to be constructed, it did not refer to any particular portion of any street. There was, however, a general ordinance applicable to all street railway companies, pro- viding that "the tracks shall be laid as near the center of the street or streets along the routes of the railway as practicable." The com- pany did not consider it practica- ble to place the track in the mid- dle of the street, and accordingly placed it near one side of the road- way. The court held that under the act in question the tracks should have been laid "as nearly as practicable in the middle of the street;" and that if It was not so constructed it was an unauthorized obstruction, for which the owner of the fee of the street might main- tain an ejectment against the com- pany. Pinch V. Riverside & Arling- ton Ry. Co., 87 Cal. 597, 600, (1891). See also Theberath v. Newark, 57 N. J. L. 309, 30 Atl. Rep. 528, (1894) ; Northern Central Ry. Co. v. Har- risburg & Meohanicsburg Elec. Ry. Co., 177 Pa. St. 142, 35 Atl. Rep. 624, (1896). An ordinance requir- ing street railway tracks to coin- cide "as near as may be" with the center of the street, means as nearly as practicable; and if the company departs from such a prac- ticable route in the center of the street, it acts without authority, its conduct is unlawful and its tracks constitute a continuing nuisance. Longenecker v. Wichita Ry. Co., 80 Kan. 413, 102 Pac. Rep. 492, (1909). If the legislature authorizes a railroad to be constructed over one route described in general terms, local authorities cannot authorize it to be constructed over another route or authorize the construction of a branch road. Attorney-Gen- eral v. Derry & Pelham Elec. Ry., 71 N. H. 513, (1902). A municipality cannot designate streets other than those designated in the charter, over which a com- pany may operate its cars. A rail- way company "can accept only such grants from the city as the charter provides," and a munici- 108 THE LAW OP STREET BAILWAYS. [§56. rule is enforced witk the same strictness when applied to turn- outs, side-tracks or switches, which cannot be constructed unless authorized by ordinance or statute, and must be located and laid according to the direction of the public authorities;* and it must be observed with the same fidelity in the location of tracks beyond municipal limits as in the laying of rails in city streets; nor will the expense incident to such construction be any excuse for a departure from the route prescribed.^ But a slight de- part^ire from the designated line, which does not injuriously affect public or private interests, will not impair the right of the company. ■^*' A general act conferring upon cities the exclusive pality "can grant no franchise on any street except such as is au- thorized by the charter." Citizens' St. Ry. Co. V. Africa, 100 Tenn. 26, 42 S. W. Rep. 485, (1897). * Concord v. Concord Horse R. R. Co., 65 N. H. 30, 18 Atl. Rep. 27, (1889); Rapid Ry. Co. v. Mt. Clemens, 118 Mich. 133, 76 N. W. Rep. 318, (1898) ; Hartford v. Hart- ford St. Ry. Co., 73 Conn. 327, 47 Atl. Rep. 330, (1900) ; McFarland v. Washington Ry. Co., 18 App. Cas. (D. C.) 456, (1901) ; Pottsville Bor- ough v. People's Ry. Co., 148 Pa. St. 175, 23 Atl. Rep. 900, (1892); Willis v. Erie Ry. Co., 188 Pa. St. 56, 41 Atl. Rep. 307, (1898). The right of a city to be consulted about the situation and construc- tion of side tracks, turnouts and switches, is of equal dignity with the right of the company to con- struct them. Mayor of Houston v. Houston Belt Ry. Co., 84 Tex. 581, 19 S. W. Rep. 786, (1892). See also Powell V. Macon Ry. Co., 92 Ga. 209, 17 S. B. Rep. 1027, (1893); Brooklyn Heights Ry. Co. v. Brook- lyn, 152 N. y. 244, (1897). ° Commissioners v. South Bend & Wishawaka St. Ry. Co., 108 Ind. 68, (1888). A part of the line was located upon a country road, and the company deposited with the board of county commissioners the sum of $500.00 as security for the performance of its contract with the county, which reciuired it, among other things, to construct its track in the middle of the road. The deflection complained of in this case was, at different points in the route, from one to nine feet from the location fixed by the county commissioners. The com- pany claimed that it was impracti- cable to follow the lines exactly, and, insisting that it had substan- tially fulfilled Its agreement with the county, brought suit to recover its deposit. But the cotirt denied the relief, holding that there had been a failure to comply with the contract in a material respect and that the company could not be ex- cused from strict performance be cause of the alleged hardship. " "Street railways are railways on and along the streets of a citj or town. They must conform to thB grades of the streets they occupy. They may diverge for a short dis tance where the conformation of the surface or the position ol streams make it necessary in ordei to avoid discomfort or danger to the traveling public, but that a street railway may like a steam railway locate its route not for the i56.J CONSTEUCTION AND EQUIPMENT. 109 control and regulation of their streets and the power to contract for and control the location of railroad tracks within their limits, accommodation of local travel along the highway but to reduce time and distance for passengers traveling from city to city or town to town across the country is a proposition not to be entertained." Williams, J., in Rabn Township v. Tamaqua & Lansford St. Ry. Co., 167 Pa. St. 84, 31 Atl. Rep. 472, (1895). A divergence for a short distance will be allowed in order to avoid discomfort to the public or danger to the traveling public, or for any reason amounting to necessity or great public convenience. Penna. R. R. Co. V. Greensburg, J. & P. St. Ry. Co., 176 Pa. St. 559, 35 Atl. Rep. 122, (1896). A reasonable divergence from the chartered route of a street railway is in the discretion of the company, and whether such divergence has been exceeded Is not a question that concerns township officials, but must be left to the control of the commonwealth through its proper officials, who alone can be heard in the interest of the general public. Jordan v. Washington Ry. Co., 25 Pa. Super. Ct. 564, (1904). See also New York, N. H. & H. R. Co. V. Stevens, 81 Conn. 16, 69 Atl. Rep. 1052, (1908). Where a company was required by commis- sioners In condemnation proceed- ings to lay its tracks as far from the house-line as the method of construction would permit, a rea- sonable discretion is given to the company as to the location of the tracks. Brooklyn Ry. Co. v. Nagel, 75 Hun 590, (1894). See also Long- enecker v. Wichita Ry. Co., 80 Kan. 213, 102 Pac. Rep. 492, (1909). See Elliott on Roads and Streets (2d Ed.), sec. 754; In re Metropoli- tan Transit Co., Ill N. Y. 588, 19 N. E. Rep. 645, (1889), reversing 48 Hun 620, (1888) ; Finch v. Riverside & Arlington Ry. Co., supra. In Bl- mira v. Maple Ave. Ry. Co., 4 N. Y. Supp. 493, (1889), a bill was filed to restrain the company from oper- ating its road because its tracks stopped twelve feet short of one of the prescribed termini. The injunc- tion was denied, the court observing that it was only "a trifling depart- ure from the exact terms of the contract." The provisions in the charter of a company author- izing it to construct and maintain its tracks "upon and over such streets" in a city, "except in" cer- tain of the streets therein men- tioned "as shall from time to time be fixed and determined by the city council," are not to be con- strued to prevent the company from laying its tracks "across" one of the excepted streets. State v. Newport St. Ry. Co., 16 R. I. 533, 18 Atl. Rep. 161, (1889). Two of the designated streets debouched on one of the excluded streets and almost but not quite opposite each other. The court held that the company could lay its tracks ob- liquely across the excluded street, thereby making a continuous track from one designated street to another. A provision in a railroad charter that no other railroad should be constructed between two points named in the city cannot be con- strued as prohibiting the construc- tion of street railways anywhere within the city for the convenience of its inhabitants; and a proviso In the charter of a city railway that 110 THE LAW OF STEEET BAIL WAYS. [§56. when inconsistent with the individual city charter, will prevail its railway shall not "affect the legal rights of any other com- pany," only protects the latter in the use of their roads and the ex- clusive right to railroad profits, and does not prohibit the construc- tion of a street railway. In a technical sense, a street railway is not a railroad. Louisville & Port- land R. R. Co. V. Louisville City Ry. Co., 2 Duvall 175, (Ky., 1865). The construction of tracks beyond a point designated in the company's charter does not entitle another company to enjoin such construc- tion unless it appears that it causes actual interference with the tracks of the other company already laid. Christopher & Tenth Sts. R. R. Co. V. Central Cross- town R. R. Co., 67 Barb. 315, (1875). A railroad company, un- der its statutory power to cross an established right of way, may not cross city streets with an elevated railroad without the consent of the city. Philadelphia v. Philadelphia R. R. Co., 7 Pa. Co. Ct. Rep. 390, (1884). Where a company was required to lay its tracks in the center line of the streets, and at a street crossing slightly deflected its tracks from the center line in order to gain more convenient access to its private property, on an indictment for unlawfully obstructing the street by means of its track, it was held that the slight departure from the designated location was not in itself a nuisance and that the prose- cution must fail unless such deflec- tion substantially interfered with the public travel. Commonwealth V. Wilkes-Barre & Kingston St. Ry. Co., ^127 Pa. St. 278, (1889). But see Kennedy v. Detroit Ry. Co., 108 Mich. 390, (X N. W. Rep. 495, (1896), where an ordinance pro- vided that railways in streets shall be laid in the center thereof. It was held that where two streets converged, increasing the width of the roadway, the tracks laid in the center of one of the converging streets must be built in the center of the roadway widened by the con- vergence. The commissioners of highways cannot prevent a company from abandoning a portion of its route or from constructing its track across a sidewalk to an adjoining lot owned by it on which it in- tends to change its engines from one track to another. Moore v. Brooklyn City R. R. Co., 31 Hun 90, (1883). "When the commissioners gave their consent to the construc- tion of the defendant's road in the town of New Utrecht, upon the highways, their duty was done. After that they could only require the restoration of the streets to their former usefulness. It was no part of their duty and was not within their power to make it ob- ligatory with the railroad company to always keep their road upon the highway. If the defendant's com- pany take up the track and restore the road, it is all which the plain- tiffs, as commissioners, can enforce. If the consent of the land owners was upon a condition, they must enforce it. The plaintiffs are limited to the rights of the public to the highway and to the enforcement of the duties of the railroad company to the highway. * * * And consent to a railroad in the street with either steam or horse power, carries with it the right to connect passenger stations or depot yards or stables with the street railroad." Per Barnard, P. J., p. 91. § 57. J LOAtSTlilTCTlOA' AND EQ Li I'MKM'l'. Ill over the latter and fix the measure of power which the city coiincil may exercise in that respect.^^ § 57. Remedy for unauthorized location As permission to maintain a railway npon a given location confers no authority to occupy any other/^ it follows that a corporation which has undertaken to vary from the location fixed by the public author- ties, and to establish for itself a substantially different route, may be dealt with in the same manner as if no right of way had ever been granted to it. It is liable to indictment for maintaining a public nuisance.^^ Its tracks may be removed by order of court in the criminal proceeding. It may be removed by the public au- thorities without judicial intervention. ■''' Its tracks constitute an unlawful obstruction to public travel, which it may be enjoined from maintaining on a bill in equity filed by the proper public "Chicago Dock & Canal Co. v. Garrity, 115 111. 155, (1885). '^Sec. 56, ante. '' See sees. 44, 56, note, ante, and cases cited. See also Common- wealth V. Erie & North Bast R. R. Co., 27 Pa. St. 339, (1856); Com- monwealth V. Vermont & Massa- chusetts R. R. Co., 4 Gray 22, (1855) ; Commonwealth v. Nashua & Lowell R. R. Co., 2 Gray 54, (1854) ; Commonwealth v. New Bedford Bridge, 2 Gray 339, 345, (18.54). "Stamford v. Stamford Horse R. R. Co., 56 Conn. 381, (1888). "The tracks, switches, turnouts or sid- ings or other unauthorized con- structions may be removed without judicial intervention. The usual ordinary police Intervention can be had, or it can be accomplished by action of constituted municipal au- thorities having control over the streets." Cape May, Delaware Bay & Sewell's Pt. Ry. Co. v. Cape May, 58 N. J. L. 565, 34 Atl. Rep. 397, 3 Am. & Eng. R. Cas. (N. S.) 592, (1896). But see Spokane St. Ry. Co. v. Spokane Falls, 6 Wash. 521, 33 Pac. Rep. 1027, (1893), holding that "while a well constructed street railway may be a technical nui- sance if unauthorized, it is not dan- gerous to either life, health or property, and so long as the courts are open to the determination of such controversies, there is no call for violence or any manner of ar- bitrary or oppressive action." In this case the company had laid its tracks on a street not authorized by the ordinance which gave it power to occupy certain streets, had done so under the supervision of the city superintendent, and had paid taxes to the city upon the un- authorized portion. In a proceeding by the railway company for an in- junction, it was held that the city was estopped. Accord, Cape May v. Cape May, Del. Bay & Sewells Point Ry. Co., 60 N. J. L. 224, 37 Atl. Rep. 892, (1897). See also Longenecker v. Wichita 112 THE LAW OF STEEET EAILWATS. [§58. officer. -^^ Its right to exercise the franchise of maintaining and operating a railway in that particular location may be challenged by quo warranto. Its franchise may be forfeited for non-user or mis-user.-'® The municipality, if it owns the fee of the street, may maintain an action of ejectment.''^^ The remedies to which abutting property owners and the owners of adverse street franchises may resort under such circumstances are discussed elsewhere. ■'®. § 58. How tracks must be constructed.- — The company owes a duty, either express or implied, to the state and the local authorities, as well as to the general traveling public, to construct and maintain its track in a proper manner, so that it will not create a material obstruction to the use of the public highway, and may be operated with safety to the public and others.-'® Where it is under no express obligation to lay and maintain its tracks in a particular manner, it may adopt such modes of con- struction as are in general use, but if the mode of construction be specified in its charter or in an agreement defining its powers and duties it will be bound thereby.^" A statutory pro-dsion Ry. Co., 80 Kan. 413, 102 Pac. Rep. form to the ordinance, the city 492, (1909). threatened to tear up the defectively " Sec. 12, ante and cases cited. laid tracks. Thereupon the com- " Sees. 44, 52, ante. See also pany, claiming that it had fulfilled Com. ex rel. v. Northeastern Ele^ its obligations in every particular, vated Ry. Co., 161 Pa. St. 409, 29 obtained a preliminary injunction Atl. Rep. 112, (1894). restraining the city from interfer- " Dillon on Mun. Corp., (4th Ed.), ing -with its property. The city, by sec 662. ans-wer, controverted the averments " Chaps, rv, V. contained in the petition and speci- " Cline V. Crescent City R. R. Co., fled the particulars in which the 41 La. Ann. 1031, 6 So. Rep. 851, company -was in default. The case (1889) ; Keitel v. St. Louis Cable & -was submitted -without evidence, on Western Ry. Co., 28 Mo. App. 322, the bill and ans-wer. The court, dep- '(1888). recating violence in the removal " Spokane St. Ry. Co. v. City of of the tracks by force, dismissed the Spokane, 46 Fed. Rep. 322, (1891). petition, holding that, in the ab- The plaintiff in this case had ob- sence of evidence to sustain its tained a franchise to construct and claim, the plaintiff had no standing operate a rail-way in certain streets in a court of equity. It -was Inti- in the manner prescribed by a city mated, ho-wever, that if the corn- ordinance. The company having pany had by its pleading offered to failed in material respects to con- comply -with its contract obligations § 59.] COKSTEtrCTION AND EQUIPMENT. 113 requiring that street railways "shall be constructed upon the most approved plans for such roads," is merely declaratory of the common law duty, which is assumed by the grantee of the fran- chise although its charter is silent on the subject. This duty is a continuing oae and does not stop with the original construction of the road; for the most approved plans must not only be adopted in the original construction, bat must be maintained throughout the life of the franchise.^^ § 59. Remedy for defective construction The failure to construct and maintain the tracks in accordance with the terms of the statute or ordinance, or, if the mode of construction be not so specified, in a proper and skillful manner, is such a violation of its obligations as will make the company amenable to appro- priate legal remedies at the suit of the public authorities. If a remedy be prescribed by statute, that must be followed unless it is merely cumulative. Ordinarily three remedies are open to the public; mandamus,^^ forfeiture of the charter^^ and indictment where it appears that the condition of the tracks amounts to a public nuisance.^* But the fact that a street railway company has not complied with the statute in its construction does not authorize an abutting owner to bring suit to enjoin the laying of tracks, unless property rights are thereby affected, as the usurpa- tion of a corporate franchise is a matter between the state and the company.^ the preliminary injunction would street grades, "so as to offer the have been continued for a reason- least impediment to the ordinary ahle length of time to permit it to travel" on the streets, permitting do so. See Spokane St. Ry. Co. v. the rails to remain above the street City of Spokane, 6 Wash. 521, 83 level is an indictable offense, with- Pac. Rep. 1072, (1893). See also out showing that any unnecessary State ex rel. Attorney-General v. impediment is offered to public Madison St. R. R. Co., 72 "Wis. 612, travel. Regina v. Toronto St. Ry. (1888). Co., 24 Up. Can. Q. B. 454, (1865); "^ Pitts V. Cream City R. R. Co., Comm. v. Camden Trac. Co., 24 59 Wis. 323, (1884). Ky. Law Rep. 411, 68 S. W. Rep. ^Sec. 65, post. 628, 27 Am. & Eng. R. Cas. (N. S.) '''Sec. 52, ante. 472, (1902). "Under an act of incorporation ^'> Nichols v. Ann Arbor & Ypsi- requiring that the rails should be lanti St. Ry. Co., 87 Mich. 361, laia flush with the streets, and that 49 N. W. Rep. 538, (1891). the tracks should conform to the And where an obstruction to pub- 8 114 THE LAW OF 8TEEET BAILWAYS. L§60. § 60. Eemedy of company to compel public officials to locate route. — Until the authorities, state or local, who are invested with discretionary power to grant or withhold the franchise, have exercised their functions by making a valid grant of the right of way, the applicant for a route acquires no rights in the streets which he can assert in a judicial tribunal. But when the grant has been diily made, and the only official act which remains to be done is the performance of a mere ministerial duty, the courts will not permit the object of the grant toi be defeated by an arbitrary refusal to discharge that duty.^* lie travel is caused by imperfect or improper construction, neither the public authorities nor private indi- viduals can take the remedy into their own hands, and remove or destroy the tracks by force. Red- fleld on Railways (6th Ed.), p. 437. To the same effect sec. 49, note, 62. See also Spokane St. Ry. Co. V. City of Spokane, 46 Fed. Rep. 322, (1891), and case of same title reported in 6 Wash. 521, 33 Pac. Rep. 1072, (1893). If the company's non-compliance with the statutory requirements as to construction is a public nui- sance, it may be abated by an ad- joining property owner who suffers annoyance thereby. State ex rel. V. Hartford St. Ry. Co., 76 Conn. 174, (1903). 2° Where public ofllcers refuse to perform their duty in locating lines, or furnishing plans, they may be compelled to act, and to furnish lines, levels or plans by suit in mandamus. State ex rel. St. Charles R. R. Co. v. Cockrem, 25 La. Ann. 356, (1873); Common- wealth V. Railway Co., 14 W. N. C. 402, (Pa., 1884). See also In re Third Ave. R. R. Co., 121 N. T. 536, (1890). But, under the peculiar facts Involved in the case, a differ- ent ruling was made by the supreme court of Massachusetts with refer- ence to the duty of public oflScials in fixing the location of poles to be erected as a part of an electric light plant. A statute of that state authorized the mayor and aldermen of a city to designate where the poles of an electric lighting com- pany shall be set. On the refusal of those officials to perform that duty the company sought by pro- ceedings in mandamus to compel them to act; but the court denied the relief. Suburban Light Co. v. Boston, 153 Massa. 200, 26 N. E. Rep. 447, (1891). See also Thompson on Electricity, sec. 52. It has been held that where the right to extend lines has been granted and the only location for the line is the ex- tension of a track which has been laid for years on the same street, the company will not be restrained from carrying on its work because the street committee has not In its official capacity defined and au- thorized the exact location of the tracks. Trenton v. Trenton Horse R. R. Co., 19 Atl. Rep. 263, (N. J., 1890). See State ex rel. v. City Engineer, 49 La. Ann. 676, 21 So. Rep. 724, (1897), where mandamus was granted to compel defendant to fur- nish levels for construction. See also Willis v. Erie City Pass. Ry. Co., 188 Pa. St. 71, 41 Atl. Rep. §§ 61, 62. J CONSTEUCTIOX xVS^D EQUIPMENT. 115 § 61. Optional routes and additional tracks. — The immicipal antliorities may grant a franchise for the use of several streets, leaving the choice of routes optional with the company.^'' They may grant the privilege of constructing either a single or double track road, to be determined by the grantee f^ or, they may name one or more routes in the original ordinance, and reserve to themselves the right to determine when additional tracks or routes will be rendered necessary by the requirements of traffic.^^ § 62. Relocation of tracks — The route having been estab- lished and the location of the tracks designated by the authorities 1119, (1898); United Rys. & El. Co. V. Hayes, 92 Md. 490, 48 Atl. Rep. 364, (1901); State v. Neville, 110 Mo. 345, (1892). ^Girard College Pass. R. R. Co. V. Thirteenth & Fifteenth Sts. & Union Pass. Ry. Co., 7 Phila. 620, (1869). This applies to extensions as well as to original routes. Som- mers v. City of Cincinnati, 8 Am. Law Rec. 612, (1880). • " Ransom v. Citizens' Ry. Co., 104 Mo. 375, 16 S. W. Rep. 415, 7 St. Ry. Gaz. 6, (1891). Where a street railway company, under a franchise in which permission is given to operate by electricity, and in which no provision is made as to the character of equipment (whether it shall be single or double trolley system), exercises its option and, with knowledge and under super- vision of city authorities, constructs a single trolley system, the rights of both parties are thereby fixed, and a street railway company can- not, in the absence of implied obli- gation in the franchise, subse- quently be required to change to a double trolley system to avoid in- jury to city or private property by electrolysis. Dayton v. City Ry. Co., 36 Amer. Law Rev. 461, 12 Low. Dec. 258, (Ohio Com. PI., 1902). See also Brown v. Atlanta Ry. & Power Co., 113 Ga. 462, 39 S. B. Rep. 71, 22 Am. & Eng. R. Cas. (N. S.) 86, (1901); Theberath v. Newark, 57 N. J. L. 309, 30 Atl. Rep. 528, (1894). ^"Ft. Worth St. Ry. Co. v. Rose- dale St. Ry. Co., 68 Tex. 160, 178, 4 S. W. Rep. 534, (1887). Where this power is reserved by the mu- nicipality the grantee does not ac- quire such a franchise in the streets not occupied by Its tracks as will entitle it to defeat a subsequent grant of their use to another company. But where an option is conferred upon the company to build a second track, but upon a new route, courts will not adjudge a forfeiture for de- lay in exercising the privileges so conferred. See sec. 51, ante, notes. Under an ordinance providing "that said company shall have ex- clusive power and authority to sur- vey, lay out, construct and equip, use and employ street railroads in the city of Atlanta, subject to the approval of the city council thereof, for each route selected, first had and obtained, before the work thereon shall be commenced," the grant is limited and restricted to each route that may be selected by the company, which shall be ap- proved by the municipal authori- ties. West End & Atlanta St. R. R. 116 THE LAW OF STEEET EAILWATS. [§63. and in the manner prescribed by law, a company has no right, without a new grant for that purpose, to change the location fixed by the public authorities, and to relay its tracks, either by removing them to private property or to other streets, or to a different part of the streets designated in the grant.^" But the public authorities may permit the tracks to be relaid in some other part of the streets covered by the right of way, and in exercising their discretion they will be subject to the same limi- tations and restrictions as governed them in designating the original location;*^ and where the power is reserved by the city it may compel the removal of the tracks from one part of the street to another.^^ § 63. Extension of original lines — An extension of an existing railway is a duly authorized prolongation of its track in any direction ;^^ and when made according to law is to be Co. V. Atlanta St. R. R. Co., 49 Ga. 151, (1873). A company authorized to construct a single track may not construct a double track in a street under the guise of building "neces- sary switches." Willis v. EJrie Ry. Co., 188 Pa. St. 56, (1898). "In re South Beach Ry. Co., 53 Hun 131, (1889). See also cases cited under sees. 55, 56, 57; Sha- mokin Borough v. Shamokin & Mt. Carmel Elec. Ry. Co., 196 Pa. St. 166, 46 Atl. Rep. 382, (1900). An "extension" is not a new route; it has no independent life; it depends upon and Is a part of the line to which it is added; and, as it could have had no legal existence without the original line, so it can have no tenure of life beyond that of the original line. Cleveland Elec. Ry. Co. V. Cleveland, 137 Fed. Rep. Ill, (1905), aff'd, 204 U. S. 116, (1907). "Hoyle v. New Orleans City R. R. Co., 23 La. Ann. 535, (1871), de- ciding that an abutting owner could not prevent such change. A com- pany having acquired the right to construct a part of its road in and over certain streets, may subse- quently, with the consent of the proper authorities, relocate its tracks upon other streets and re- move the tracks first laid. Attor- ney-General V. Chicago & Bvanston R. R. Co., 112 111. 611, (1884). »2West Philadelphia Pass. Ry. Co. V. City of Philadelphia, 10 Phila. 70, (1873). Where a municipality is author- ized by ordinance to compel the re- moval of tracks from the side to the middle of a street, it cannot law- fully agree with a street railway company not to enforce such ordi- nance; and, such an agreement be- ing made between company and municipality, the latter will not be estopped from enforcing the ordi- nance. Macon Consol. St. Ry. Co. v. Macon, 112 Ga. 782, (1901) ; Snouffer V. Cedar Rapids Ry. Co., 118 la. 287, (1902). ^ Sommers v. City of Cincinnati, 8 Am. Law Rec 612, (1880). To extend the traek of a street 63.J CONSTEUCTIOK AND EQUIPMEK'T. 117 admitted and taken to be a part of the charter as if it had origi- nally been made a part thereof, and is to be treated with the same consideration as the original grant. This is true whether the right to make the extension, is derived from the legislature directly or mediately through the municipal authorities. In either case it is in effect an amendment to the charter, and for all pur- poses must be treated as an essential part of it.^* Although the franchises of an existing company are not affected by the adop- tion of a new city charter, the grant of a franchise to such com- pany for an extension of its line can only be made subject to the restrictions of the city charter in force at the time the extension is granted. ^^ Where the consent of abutting owners is essential to the validity of the franchise, the local authorities cannot, with- out such consent, authorize a company already established and in operation to extend its lines or to lay its tracks upon other streets, either permanently or temporarily, unless the extension is a necessary incident to the principal subject of a previous valid grant.^® But the consent of the owners of property abutting on railway is not necessarily to con- tinue such track in tlie same gen- eral direction as the original track. An extension may include the con- struction of a track across and at right angles with the original track. Power to authorize a railway "to extend location of its tracks" may be held, without any violence of construction, to include location of an additional track, not connected with existing tracks except by tracks of another railway compan3'. Belle v. Glenville, 27 Ohio C. C. 181, (1906). See also Daniels v. Comm. Ave. St. Ry. Co., 175 Mass. 518, 56 N. B. Rep. 716, (1900); Trenton St. Ry. Co. v. Penna. R. R., 63 N. J. Eq. 276, (1901); Philada. v. Citizens' Pass. Ry. Co., 151 Pa. St. 128, 24 Atl. Rep. 1099, 56 Am. & Eng. R. Cas. 503, (1892); Mt. Auburn Cable Ry. Co. v. Neare, 54 Ohio St. 153, (1896); Comm. V. Uwchlan St. Ry. Co., 203 Pa. St. 608, (1902). That an original line of a company is but three miles long while the proposed additional line is about fifteen miles long is insufficient of itself to constitute such addition a "new road," and not an "extension" within Railroad Law, Laws, 1890, p. 1108. c. 565, sec. 90, permitting a company to "extend" its lines. Roberts v. Hunt- ington Ry. Co., 105 N. Y. Supp. 1031, (1908). ^Braddock & Turtle Creek Ry. Co. V. Braddock Electric Ry. Co., 1 Dist. Rep. 44, (Pa., 1892). ^ City of St. Louis v. Missouri R. R. Co., 13 Mo. App. 524, (1883). =« People V. Third Ave. R. R. Co., 45 Barb. 63, (1865). The court held that the common council of the city of New York had no power to authorize the extension of a city railway, even for the better accommodation of the public, "un- I'ess possibly where such extension is really necessary to the enjoy- ment of a previous valid grant." 118 THE LAW OF STSEET KAILWAYS. [§63. the original line is not required as a condition precedent to granting the right to extend the route. And where the extension is projected in part oyer the tracks of another company, the latter cannot object because a part of its business will be taken away.*^ If at the tinae a charter is granted the railway may be located, constructed and maintained in the streets of a munic- ipality without the consent of its public authorities, subsequent statutory or constitutional provisions prohibiting the grant of such a franchise, except with the consent of the city, will not pre- vent the company from extending its road by the permission of the legislature, but without the consent of the municipal authori- ties; for a constitutional provision subsequently adopted, or an act of the legislature stibsequently passed, can neither repeal nor alter existing charter rights.^* Authority given in the charter of a company to construct "such branches as may be necessary to connect them with any other railway or railways within the city," is to be confined in its operation to railways in exist- ence at the time the charter was granted. ^^ In Ohio an extension of the tracks may be secured by a company by act of the board of directors without the concurrence of the stockholders of the company and beyond the termini named in the certificate of incorporation, and the extension may be lawfully granted over the lines of another company, subject to the acquisition of the right from the latter company, either by agreement with it or by the exercise of the right of eminent domain. And where the council of a city or village acting in good faith grants an exten- sion, the grant will not be interfered with by the courts. An ordinance granting such permission is not an act conferring "'Broadway & Newburgh St. Ry. City of Cincinnati, supra; Clement Co. V. Brooklyn St. Ry. Co., 10 W. v. City of Cincinnati, 16 W. L. B. L. B. 72, (1883). The fact that such 355, (1886). Accord, Belle v. Glen- an extension will cause interruption ville, 27 Ohio C. C. 181, (1906). of the other company's road during ^ Williamsport Pass. Ry. Co. v. the period of construction is not Williamsport, 120 Pa. St. 1, (1888). sufficient ground. Consolidated Trac. See also Gloninger v. Pittsburgh & Co. V. South Orange & Maplewood Connellsvllle R. R. Co., 139 Pa. St. Trac. Co., 56 N. J. Eq. 569, 40 AU. 13, (1891). Rep. 15, (1898). Statutes requiring =» People's Pass. Ry. Co. v. Mar- publication and competitive bidding shall St. Pass. Ry. Co., 8 Pa. Co. Ct. for an original or new route do not Rep. 273, (1890); Thurston v. Huston, iipply to an extension. Sommers v. 123 la. 157, 98 N. W. Rep. 637, (1904). §64.J COWSTEFCTION' AITD EQUIPMENT. 119 corporate powers. It is merely a pennit to the corporation to exercise the corporate powers conferred by general law, and, therefore, not in violation of a constitutional inliibition against the passage of special acts conferring corporate powers.*" § 64. Parallel and competing lines. — In determining what are parallel roads within the meaning of acts passed for the pur- pose of protecting companies first in the field against injurious competition, neither the relative location of the termini nor the general direction of the entire line of the respective roads can be regarded as controlling circumstances; therefore, a company will not be saved from the operation of such an act merely because its entire route as projected, or even the gi'eater part of it, would not be parallel with a road previously established and constructed. In giving effect to such a statute commercial results will control mere physical facts.*'' "Sims V. Brooklyn St. R. R. Co., 37 Ohio St. 566, (1882); Broadway & Newburgh St. Ry. Co. v. Brook- lyn St. Ry. Co., 10 W. L. B. 72, (1883). A statute of Massachu- setts (Laws of 1874, Chap. 29, sec. 11), empowered boards of alder- . men and selectmen to authorize any street railway corporation "whose charter has been duly ac- cepted, and whose tracks have been located and constructed, to extend the location of its tracks within the territorial limits of such city or town whenever it can be done without entering upon or using the tracks of any other street railway corporation." Under this act it was held that a company might be authorized to locate additional tracks not connected with its ex- isting lines, except by tracks . of another corporation. South Boston R. R. Co. V. Middlesex R. R. Co., 121 Mass. 485, (1877). In Hamilton V. New York & Harlem R. R. Co., 9 Paige Ch, 171, (1841), where the original charter fixed the time within which the road should be constructed, and subsequently an extension was authorized, to be made from time to time as the common council might think proper to authorize it, it was held that it might be constructed any time dur- ing the existence of the charter of the company. *^A statute of Missouri provided that no street railway should there- after be constructed in the city of St. Louis nearer to a parallel road already constructed than the third parallel street therefrom. It was held that in determining what werp parallel roads within the meaning of the act it was not necessary that every part, or even the greater part, of the two roads should be parallel; and that where the gen- eral direction of the two competing roads was substantially the same for nearly two miles, and for a half a mile of that distance they were exactly parallel, they were to be 120 THE LAW OP STREET BAILWAYS. [§65. § 65. Construction, and operation of road — ^Ifow duty enforced. • — ^As a general rule, courts will not interfere with, the manage- ment of private corporations, except where the act sought to be enforced is specific and tke right to its performance in the manner proposed is clear and undoubted. But where the duty is im- perative, mandamus has sometimes been awarded, notwithstanding the thing required to be done involves the performance of a multiplicity of acts requiring the exercise of judgment and discre- tion on the part of the defendant as to matters of detail.*^ Mere deemed parallel roads, notwith- standing their termini were wide apart and the general direction of one was northwest to southeast, while that of the other was from north to south. St. Louis R. R. Co. V. North-Western St. I^ouis Ry. Co., 69 Mo. 65, (1878). See also St. Louis R. R. Co. V. South St. Louis R. R. Co., 72 Mo. 67, (1880). A statute of New Jersey (N. J. Supp. 1886, p. 64) provides that "no street railway shall be constructed in any street where one may be then operating within one thousand feet of such railway, nor parallel thereto within two blocks thereof, without the written consent of the company then operating such rail- way, except to cross the same." In Pennsylvania it is held that street railways, though parallel, cannot be competing in the sense of the mis- chief intended to be prevented by statutes forbidding the consolida- tion of competing railroads, and, therefore, that such prohibition does not apply to them. Appeal of Montgomery, 136 Pa. St. 96, 20 Atl. Rep. 399, (1890); Gyger v. Phila. City Pass. Ry. Co., 136 Pa. St. 96, (1890), in which the statutes relat- ing to the subject are fully consid- ered. See Central Ry. & Elec. Ry. Co. v. New York, N. H. & H. R. R. Co., 72 Conn. 33, (1899); New Eng. R. R. Co. V. Central Ry. & Elec. Co., 69 Conn. 47, 8 Am. & Eng. R. Cas. (N. S.) 261, (1897). In Connecti- cut, whenever there is a proposal to build a parallel railway, there must be a finding by the court that there is a necessity for such a road. The court's finding is con- clusive unless it has exceeded its jurisdiction, or where the methods of judicial procedure have been violated. In re Shelton St. Ry. Co., 69 Conn. 626, 9 Am. & Eng. R. Cas. (N. S.) 186, (1897). *^ Ohio & Mississippi Ry. Co. v. People, 120 111. 200, 30 Am. & Eng. R. Cas. 509, (1887). The sixth edition of Redfleld's "Law of Rail- ways," Vol. I, p. 697, states the rule as follows: "No better general rule can be laid down upon this subject than that where the charter of a corporation, or the general statute in force and applicable to the subject. Imposes a specific duty, either in terms or by a fair and reasonable construction and implication, and there is no other specific or adequate remedy, the writ of mandamus will be awarded. But if the charter, or the general law of the state, affords any other specific and adequate remedy, it must be pursued." The writ has been issued by American courts to enforce the per- formance of a great variety of com- mon law and statutory duties, de- §65.J CONSTEUCTION AND EQUIPMENT. 121 permission to construct and operate a street railway, although, duly accepted by the company, does not create such an obliga- tion as may be enforced either by a bill in equity for specific performance, or by the extraordinary writ of mandamus; but where the contract to perform a quasi public duty is specific, as, for instance, to construct and operate a street railway, and the company has entered upon the streets and partially laid its volved upon commercial railroads, a few of which will be referred to, to indicate the general tendency of the decisions. Mandamus has been awarded to compel a railroad com- pany to resume the duty which it owes to the public of carrying goods and property offered for transportation. People v. New York Central & Hudson River R. R. Co., 9 Am. & Bng. R. R. Cas. 1, (N. Y., 1882) ; to compel it to operate its railroad as one continuous line, Union Pacific R. R. Co. v. Hall et al., 91 U. S. 343, (1875) ; to run pas- senger trains to the terminus of the road. State v. Hartford & New Haven R. R. Co., 29 Conn. 538, (1861) ; to compel it to construct and maintain cattle-guards and crossings. People v. Rochester & State Line R. R. Co., 14 Hun 371, (1878), affirmed in 76 N. Y. 294, (1879); State v. Chicago, B. & Q. R. R. Co., 29 Neb. 412, 45 N. W. Rep. 469, (1890) ; to build a bridge. People V. Boston & Albany R. R. Co., 70 N. Y. 569, (1877); to con- struct its road across streams so as not to interfere with navigation. State v. Railroad Co., 9 Rich. Law Rep. 247, (1856); to run dally trains. In re New Brunswick & Canada R. R. Co., 1 P. & B. N. B. 667, (1878); to deliver grain at a particular elevator, Chicago & North-Western R. R. Co. v. People, 56 111. 365, (1870); to complete its road. Farmers Loan & Trust Co. v. Leavenworth. L. & G. R. R- Co., 17 Am. Law Reg. 268, (U. S. C. C, 1878) ; State V. Southern Minnesota R. R. Co., 18 Minn. 40, (1871); People v. Albany & Vermont R. R. Co., 24 N. Y. 261, (1862) ; to grade its track so as to make crossings convenient and useful, People v. Dutchess & Columbia R. R. Co., 58 N. Y. 152, (1874) ; Indianapolis & Cincinnati R. R. Co. V. State, 37 Ind. 489, (1871) ; to re-establish an aban- doned station. State v. New Haven & Northampton R. R. Co., 37 Conn. 153, (1870); to replace a track taken up In violation of its charter. King V. Severn & Wye Ry. Co., 2 Barn. & Aid. 646, (1819); to pre- vent the abandonment of a road once completed, Talcott v. Pine Grove, 1 Flipp. 145, (1872) ; to erect and maintain a depot at a place designated by the railroad commis- sioners. Railroad Commissioners v. Portland & 0. Cen. R. R. Co., 63 Me. 269, (1872); to establish a flag sta- tion and erect a station house, Com- monwealth v. Eastern R. R. Co., 103 Mass. 254, (1869); to recon- struct a public road taken by It, Commonwealth v. New York P. & O. R. R. Co., 138 Pa. St. 58, 20 Atl. Rep. 951, (1890); to construct a viaduct over railroad tracks cross- ing city streets. State v. Missouri Pacific R. R. Co., 33 Kan. 176, (1885) ; to construct a bridge over its tracks In a city and extend the same over the tracks of several companies. State v. St. Paul, Minn. & M. Ry. Co., 38 Minn. 246, 39 N. W. 122 THE XAW OF STREET KAILWATS. [§65. tracks, the fair weight of authority seems to sustain the doctrine that mandamus may issue to compel the grantee of the franchise to complete and operate its road in accordance with the terms of its charter.** Under the rule that mandamus will not be awarded except where there is no other adequate remedy, it would seem that, in most instances, resort to such a proceeding would be Rep. 153, (1888) ; State ex rel. v. St. Paul, Minneapolis & Manitoba Ry. Co., 35 Minn. 131, (1886). Mandamus has been awarded to compel street railway companies: to erect guard wires above trolley wires, State v. Janesville St. Ry. Co., 87 Wis. 72, 57 N. W. Rep. 970, 22 L. R. A. 759, (1894) ; to take up certain rails and replace them with best and most approved type, Wilbur V. Trenton Pass. Ry. Co., 57 N. J. L. 212, 31 Atl. Rep. 238, (1894); to run over the tracks of another company under provisions of reserved power. State v. St. Paul City Ry. Co., 78 Minn. 331, (1899). Where a company owns two lines consolidated in one system and can accommodate the people by op- erating one line and abandoning the other line without serious detri- ment to any considerable number of people, mandamus will not lie to compel the company to operate both lines. "No interest of the public requires the economic waste incident to the operation of two closely parallel railroads, where one is abundantly able to take care of all the traffic." People v. Brook- lyn Heights Ry. Co., 69 App. Div. (N. Y.) 549, (1902). A resident of a section in which a route was discontinued has enough interest to move for man- damus to compel operation of tne route. State v. Spokane St. Ry. Co., 19 Wash. 518, 53 Pac. Rep. 719, 41 L. R. A, 515, 11 Am, & Eng. R. Cas. (N. S.) 62, (1898). Accord, Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26, 15 Am. & Eng. R. Cas. (N. S.) 206, (1899). Conditions imposed by a town- ship are as binding as though im- posed by a statute, and mandamus may issue for their enforcement. Township v. Detroit L. & St. Ry. Co., 130 Mich. 363, 90 N. W. Rep. 42, 25 Am. & Eng. R. Cas. (N. S.) 494, (1902). Accord, Potwin Place V. Topeka Ry. Co., 51 Kansas 609, 33 Pac. Rep. 309, 56 Am. & Eng. R. Cas. 549, (1893). *■ Martin v. Second & Third St. Pass. Ry. Co., 3 Phila. 316, (1858). In this case the words, "power and authority to lay out and construct a railway," were held to be imper- ative, although the remedy does not seem to have been by mandamus. In State ex rel. Omaha Horse Ry. Co. V. Judges, 19 Neb. 149, (1886), a peremptory writ of mandamus was granted to compel a street railway company to operate a por- tion of its line. The decision turned upon another point, but no objection was made to the remedy. In McCann v. South Nashville St. R. R. Co., 2 Tenn. Ch. 773, (1887), the court held that a court of chancery would not enforce the specific performance of continuous duties which involved personal labor and care, as, for example, the running of the cars of a street rail- way along a particular street dally, "at such regular Intervals as may be right and proper," and that tbe §65.j COASTfiUCTIOA AND EQQIPMENT. 123 wholly imnecessary. The reason of the rule as applied to com- mercial railroads fails in part, if not wholly, when applied to street railways. The franchise of a commercial railroad is per- petual; that of a street railway is usually of short duration. The proper remedy was mandamus, or a proceeding by the state to for- feit the charter. But mandamus will not lie to compel a railway company to oper- ate its trains in a designated man- ner, where the responsibility of de- termining how many trains shall be run and what intervals of time is expressly given to its board of directors. People v. Brooklyn Heights Ry. Co., 172 N. Y. 90, (1902). See also City of Kingston v. Kingston Elec. Ry. Co., 28 Ontario Rep. 399, (1897), 25 Ontario App. Rep. 462, (1899). In People v. Chicago West Di- vision Ry. Co., 118 111. 113, (1886), the supreme court of Illinois ex- pressed a doubt as to whether a street railway company could be compelled by mandamus to con- struct and operate its line of rail- way when no such obligation ap- peared in its charter; and in an- other case. State ex rel. v. New Or- leans & Carrollton R. R. Co., 37 La. Ann. 589, (1886), it was held that mandamus would not lie to compel a street railway company to dis- charge the duty of repairing the streets, when the obligation was created by contract. "The writ of mandamus cannot be used to compel specific perform- ance of a merely private contract. The writ lies only to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. The relator must trace his right through the public duty of the respondent and not its private obligations." State v. Home St. Ry. Co., 43 Neb. 830, 62 N. W. Rep. 225, (1895). In Patton Township v. Monongahela St. Ry. Co., 226 Pa. St. 372, 75 Atl. Rep. 589, (1910), it was held that equity has Jurisdic- tion to decree the specific perform- ance of a contract entered into by the company with the township, as to the manner of the construction of the route, the character of the pavement, and the double tracking of the road after the happening of a particular event previously desig- nated. Where an ordinance, duly accepted by the company, requires it to construct a part of Its road within a specified time, and to com- plete the remainder as soon as the road can be constructed, operated and kept in repair without actual loss, the time within which the road should be completed, under the terms of the ordinance, is an issua- ble fact; and in a proceeding by mandamus to compel the company to complete its road, an averment that It cannot be constructed, oper- ated and kept In repair without actual loss, constitutes a good de- fense. People V. Chicago West Di- vision Ry. Co., supra. See also State v. Duluth St. Ry. Co., 88 Minn. 158, 92 N. W. Rep. 516, 28 Am. & EJng. R. Cas. (N. S.) 718, (1902), and San Antonio St. Ry. Co. V. Texas, 90 Tex. 520, 39 S. W. Rep. 926, 6 Am. & Eng. R. Cas. (N. S.) 650, 35 L. R. A. 662, (1897), where mandamus was refused be- cause the power to construct and maintain the road was permissive merely and not obligatory. But although such company can- 124 THE LAW OF STREET EAILWAYS. [§ 66. commercial railroad lias a practical monopoly of traffic within a district through which it- would not be practicable to construct other roads; the street railway has no monopoly, for the local authorities may permit other companies to construct and operate lines upon the same street, or to occupy the same track jointly, or to operate cars on the abandoned tracks. In many, if not in a majority, of the cities in which street railway franchises ha¥e been granted, the right of way through the streets is a valuable privilege which may be sold at any time. If certain lines are self sustaining, and others, especially in the suburbs, cannot be operated without loss, a failure to operate any portion of the system, will, even if the statute does not declare a forfeiture, constitute an adequate cause of forfeiture at common law.** On the other hand, if the system as a whole is a financial failure, it would tax the resources of a judicial tribunal to secure and maintain for years an adequate street car service by a mere judicial fiat. § 66. Different kinds of motive power classified. — The various kinds of motive power in use in America for the propulsion of street cars may be classified as follows: first, animal — ^the oldest means, which has been in use since about 1850;*^ second, mechani- cal, which may again be siibdivided into those systems in which the motive power is purely mechanical, and those in which the motive power is partly mechanical and partly electrical. Those purely mechanical include the cable system, the steam motor, the vapor or naptha motor, and the gasolene motor. Those systems embracing both electrical and mechanical features may be included under the heads of trolley and cumulator or storage systems. The trolley system in turn may be subdivided into the single and double trolley and overhead and underground wire trolley and the third rail system. Of the various mechanical not be compelled by mandamus to 692, (1899) . For remedy to compel operate because the act of operat- company to pave and repair see Chap. IX. ing Is permissive and not obliga- tory, its franchise can nevertheless be forfeited for non-user. State v. "^®°- ^^' ^''^^- '^°^^- ^""^ <=^^^^ Helena P. & L. Co., 22 Mont. cited. 391, 56 Pac. Rep. 685, 44 L. R. A. « See Govln v. Chicago, 132 Fed. 8 67.] CONSTEUCTION AND EQUIPMENT. 125 and electro-mechanical means employed, tke most extensively used are the trolley electric systems. The storage electrical system and the third rail system are extensively used on interurban railways. All cable systems are operated substantially in the same manner, and differ from each other only in the details of mechanism used in the power station and on the cars. There are in use five distiuct methods of electric propulsion, viz.: the double trolley system, the single trolley system, the storage battery, the underground or conduit system, and the third rail system. The rules of law as to the use of the different systems, appliances and devices merely keep pace with the march of science in supplying the demands of improved urban or inter- urban rapid transit facilities, although in some cases fine distinc- tions have been drawn by courts based on the actual or supposed status of science, as applied to car propulsion, at the time certain statutes were passed. In the following sections of this chapter attention will be called to such statutes and the decisions by which they have been construed. § 67. What motive power may be used As we have seen*^ the state has ample and unquestioned power to grant the use of any public highway for the construction and operation of street railways, and as a necessary incident of this prerogative it may prescribe the kind of motive power which may be used, by direct and specific legislation, or it may delegate such authority to local officers.*'^ In several of tha states the subject is covered by general statutes, but in a majority of them, perhaps, no such provision can be found except in special acts. When the grant is made, either in general or specific terms, whether directly by the state or mediately through the local authorities, to adopt and use designated means of car propulsion, it will afford the grantee a complete protection against all adverse rights and interests except those of the owners or occupants of abutting property.** The questions which have been decided touching the right to use any particular motive power, and affecting the public interests with which we are dealing in this chapter, have arisen only in Rep. 848, 854, (1905) ; Cook on Corp. " Sec. 28, ante. (6th Ed.), Vol. IV, sec. 912. '"For their rights and remedies " Sec. 3, ante. see Chaps. IV and VII. 126 THE LAW OF STREET EAILWATS. [§ 67. cases involving the construction of statutes or ordinances. In nearly every case the courts have given a broad and liberal inter- pretation to the provisions which they have been called upon to construe and apply. Accordingly it was held in a well consid- ered case that a statute which, after designating certain kinds of motive power, authorized the use of ''any other motive power," did not confine the local authorities or the company to the use of those kinds of power known and adopted prior to the passage of the act, but was sufHciently comprehensive in its terms to authorize the propulsion of cars by any motive power discovered subsequent to the act under which the grant was made, which was not per se a public nuisance and did not materially interfere with the rights of abutting owners.** If the franchise to use a certain kind of power is ultra vires because granted without statutory authority, such want of power is a question between the company and the state and cannot be raised collaterally in a controversy between the abutting owner and the company as to its right to erect poles for sustaining its wires in the street."* Under the familiar rule which governs the interpretation of all grants of corporate franchises, if the motive power to be used is designated in the charter or in a valid agreement between the company and the public authorities, the company will be limited to the use of the power so designated, and if it attempts to change its motive power, without an amendment of its charter or a modification of the terms of its agreement, relief will be granted at the suit of the state.®^ But the power of a city to " Detroit City Ry. Co. v. Mills, 85 mechanical or other power or corn- Mich. 634, 48 N. W. Rep. 1007, bination of both," was held to em- (1891), holding that electric power brace electricity as a motive power, might be adopted although not dis- Hudson River Tel. Co. v. Watervliot covered until after the passage of Turnpike R. R. Co., N. Y. Supp. the act in question. But see State 177, 56 Hun 67, (1890). See Bell v. City of Trenton, 54 N. J. L.. 92, 23 Telephone Co. v. Montreal St. Ry. Atl. Rep. 281, (1892) ; Watkin v. Co., Q. O. L. R. 6 Q. B. 223, (1897) ; West Phila. Pass. Ry. Co., 152 Pa. Williams v. Citizens Ry. Co., 130 St. 153, (1892). Ind. 71, 29 N. E. Rep. 408, 15 L. R. »° Detroit City Ry. Co. v. Mifls, A. 64, (1891); Chicago Gen. Ry. Co. supra. A New York statute (Laws v. Chicago City Ry. Co., 186 111. 219, N. Y. 1862, Chap. 233), which au- 57 N. E. Rep. 822, 50 L. R. A. 734, thorized the company to use "the (1900). power of horse, animal or any "Denver & Swansea Ry. Co. v. § 68. J CONSTEUCTION AND EQUIPMENT. 12^ authorize the use of electricity for the propulsion of street cars carries with it the power to authorize the erection of poles, not- withstanding the act of incorporation provides that the company- should not "encumber" any portion of the street occupied by its tracks.''^ § 68. Silence as to motive power. — ^It was decided by the supreme court of Illinois that a charter which was silent as to the motive power that might be used, conferred the right to use only that means of propulsion "which would be most conducive to the best interests and safety of the public having occasion to use the street as a common highway, and which was then in ordinary use in the state." ^* In that ease the city was sustained in prohibiting the use of steam. Since that decision was announced many radical and beneficial changes have been intro- duced in the mode of propelling cars,^* and in numerous instances one kind of power has been substituted for another without express legislative sanction for the use of the improved method. While it is undoubtedly true that the legislature, or, in the absence of a prohibitory statute, the local authorities, when such a regulation would not violate vested rights, may lawfully pro- hibit the use of any system deemed injurious to public interests, it does not follow that a municipality may not permit the adop- tion of an improved method in general use merely because, at the date of the existing charter, that system was not in common use in the state by which the charter was granted. And, if the statutes are silent on the subject, no good reason is apparent for denying the right of a company, with the consent of the city, to Denver City Ry. Co., 2 Colo. 673, State v. City of Trenton, 54 N. J. L. (1875); Citizens' St. Ry. Co. v. 92, 23 Atl. Rep. 281, (1892). Jones, 34 Fed. Rep. 579, (1888). See A charter authorizing a company also Mayor v. Ohio & Pennsylvania to use either animal power or steam Ry. Co., 26 Pa. St. 355, (1855) ; Trel- .^m ^^^ ^^ j^gj^ In^^u^ ^ ^oto ford V. Coney Island & Brooklyn ^^^^^^ because the legislature could Ry. Co., 6 App. Div. (N. Y.) 204, ^^^ authorize the use of steam. „„■ ^ „ ^ „x T, /I Hiss V. Baltimore & Hampden Pass. " Taggart V. Newport St. Ry. Co., ^ 16 R. I. 668, (1890). To the same ^^^ ^°- ^^ ^^- 242. (1879). effect also see Louisville Bagging "North Chicago City Ry. Co. v. Manufacturing Co. v. Central Pass. Lake View, 105 111. 207, (1882). Ry. Co.. 95 Ky. 50, (1893). Contra. "Sec. 66, ante. 128 THE LAW OV STREET fiAlLWATS. [§68. adopt a system which was discovered since the passage of the original ordinance by which its franchise was acquired. These views are believed to be in accord with "the policy of municipal action both in the United States and Canada, and to find some support, by analogy at least, in the adjudicated cases.^® But in a case in New Jersey much seems to have depended on what the court believed to have been "within the legislative design" when the act in question was passed, the conclusion of the court being that while, under the statute, the council could lawfully permit the use of "electric or mechanical motors," it could not permit the use of poles and wires, because the legislature could not have had any knowledge of the use of such appliances.^® ^ Sec. 67, ante. "'State V. City of Trenton, 54 N. J. L. 92, 23 Atl. Rep. 281, 282, (1892). The statute authorized the use of "electric or mechanical motors," and the ordinance permitted the use of "electric motors * * * to he sup- plied with electricity from properly guarded overhead wires, supported by poles at least twenty feet high." After commenting upon the charac- ter of the structures essential to the trolley system as affecting the use of the street, Mr. Justice Reid pro- ceeds as follows: "It seems too ob- vious for argument that the legis- lature had no intention to grant privileges so extensive and burden- some as these. But if the term 'motor' is to be held to include posts, arms and wires in the street, or if it be held that the right to use a motor impliedly carries with It the right to employ these posts, arms and wires, it would seem diffi- cult to define what obstruction in a street might not be legalized by this act. I think it clear that it was never within the legislative de- sign, expressly or by implication, to empower a private corporation to change, or to grant power to a com- mon council to permit such corpo- rations to change the character of a street railroad. I mean by the term 'character of a street rail- road,' Its methods of using a public street as such use has heretofore been recognized. * * * The con- clusion is that the act of 1886 ex- pressly grants only the right to use, with the consent of the municipal authorities, an electric machine at- tached to some part of the car for the purpose of transmitting electric energy into car movement. The act contained no implied grant of power to obstruct the ordinary use of the public street by posts, wires or any other apparatus designed to be used in connection with an elec- tric motor. The common council had no power to authorize or con- sent to anything more than to the use of an electric motor. The ordi- nance pretending to vest, as it does, in the defendant corporation, a right to place posts and string wires in the public street is a nullity. It is perceived that this result does not rest upon want of power in the legislature to authorize these erec- tions upon the land of an abutting owner without providing compensa- tion — upon which question no opin- ion is expressed — but rests upon §69.J CONSTEtrCTION AND EQUIPMENT. 129 § 69. Change of motive power. — The legislature may lawfully grant to existing street railway companies the right to substitute one motive power for another; and where the consent of the property owners and of the local authorities invested with legislative or discretionary powers has been duly obtained as required by law, the right to exercise the new franchise cannot be defeated by the refusal of a mere executive otficer to grant a permit to make such changes in the street, and, on his refusal, he may be compelled by mandamus at the suit of the company to perform that duty.^^ The municipality does not exhaust its authority by a single exercise of it with reference to the motive power which may be used. After permitting the use of horse cars by the original ordinance the coimcil may pass a second ordinance changing the power to electricity, where the act incor- porating the company provides that the road shall be operated with "horse, or other power," as the city council may from time to time direct.^* The passage of an ordinance granting permis- the Intention of the legislature as expressed in the act.'' Perhaps no judicial opinion expresses more forcibly than this one the objec- tions to the use of the overhead electric system, although the con- clusion reached is not in har- mony with the decisions of several other states. If the proposed struct- ures would have constituted a pub- lic nuisance, for the purpose of determining the question involved the legislative intention was wholly immaterial. But if, on the con- trary, the erection of poles, arms and wires was consistent with the public use of the street, and they were necessary parts of the only electric system in general use at the time, the decision of the court seems to rest on a very slender foundation. See Detroit City Ry. Co. v. Mills, 85 Mich. 634, 48 N. W. Rep. 1007, (1891), in which it was decided that municipal authorities are not confined to those means of propulsion known and In use at the o time of the act under which a right of way was acquired. See also Buokner v. Hart, 52 Fed. Rep. 835, (1892). ■^'In re Third Ave. R. R. Co., 121 N. Y. 536, (1890), reversing 26 Hun 537. The commissioners, having given their consent for a change from horse power to electricity, cannot subsequently change their decision. People V. R. R. Commissioners, 30 App. Div. (N. Y.) 69, (189S). As to the remedy by mandamus to com- pel the performance of kindred du- ties see sec. 65, ante. '* Taggart v. Newport St. Ry. Co., 16 R. I. 668, 19 Atl. Rep. 326, (1890). The charter of New Orleans (1882) provides that the common council shall have power "to authorize the use of streets for horse and steam railroads." The city, however, au- thorized the company to use elec- tricity as a motive power. Holding that the terms used were not words of limitation, said Billings, J.: "It 130 THE LAW OF STEEET EAILWATS. [§69. sion to operate cars mth. animal power only, does not create a contract between the city and the railway company, to abandon for all time to come the use of steam within the city as a motive power; and the company may afterwards, with permission of the city, use steam as the sole means of propelling its cars. An ordinance permitting the use of animal power and its acceptance by the company confer a limited right or privilege but do not prohibit the acquisition of a more enlarged one in the future.^® An act authorizing the change of power confers no substantial franchise; it is merely a regulating act.®" A street railway does seems to me they granted the dis- cretion as to all street railroads and mentioned only 'horse and steam' railroads, because, according to the then existing state, so to speak, of the art, horses and steam were the only means for the propulsion of street cars then in use." See also Buckner v. Hart, 52 Fed. Rep. 835, 836, (1892); Harper v. Balto. City Pass. Ry. Co., 85 Md. 509, 37 Atl. Rep. 359, 38 L. R. A. 509, (1897). ""Authority in the charter of a railway company to build either a horse railroad or steam railroad within a city, confers a continuing option to use either steam or ani- mal power, or both, upon its road, or any part of it, that may be ex- ercised from time to time, under which the use of either motive power may be changed and the other substituted, as the company may see fit. Attoiney-General v. Chicago & EJvanston R. R. Co., 112 111. 611, (1884). The surrender of an existing right, even for a con- sideration, to use a particular kind of motive power is not a covenant against a future acquirement of the right, any more than the sale of an interest in any property or busi- • ness is an agreement against fu- ture repurchase. People v. Long Island R. R. Co., 60 How. Pr. 395, 398, 411, (1880). But a company which has authority derived from its charter or the ordinances of a city, to use animal power only, can- not lawfully employ steam as a means of locomotion, and may be enjoined from using it, whether it is already engaged therein or is only threatening to make the change. Newport & Dayton St. Ry. Co. V. Newport, 1 Ky. Law Rep. 404, (1880). The fact that a company has been authorized to use only animal power, although it had for a long period of time used electricity for its lines, does not make the com- pany's application for an extension operated by electricity Invalid. Belle V. Glenville, 27 Ohio C. C. 181, (1906). Where a statute provided that no motive power other than animal power should be used upon any street for an inclined plane rail- way, the fact that the compa,ny, with the consent of the board of public works, expended large sums in changing the motive power from horse to electricity, does not estop the city from denying the com- pany's right to so use the streets. Louisville Trust Co. v. Cincinnati, 76 Fed. Rep. 296, 26 C. C. A. 334, (1896). °°In re Petition of Third Ave. R. §70.] CONSTETJCTION AND EQUIPMENT. 131 not change its character by the suhstitution of the grip cable or elec- tricity for animal power ;*^ and the fact that the cable is operated by steam does not make the road a steam railway.®* § 70. Gauge of tracks — ^If there be no express restriction upon its right to do so, the company may adopt any gauge in ordinary use which is suitable for its cars; and the exercise of that choice will not prevent a substitution, at the option of the company, of any other gauge which would not injuriously affect the public.'^ A company operating a track of a certain gauge for a number of years without objection, under an ordinance giving it the right to lay its tracks without prescribing the gauge, cannot be required by the city to use a different gauge in laying such additional tracks as it requires.®* R. Co., 121 N. Y. 536, 23 N. E. Rep. 951, (1890), reversing 9 N. Y. Supp. 686, 48 Hun 477, (1888), and sub- stantially overruling People ex rel. Third Ave. R. R. Co. v. Newton, 112 N. Y. 396, (1889). An act authoriz- ing a change of motive power does not violate a constitutional pro- vision prohibiting private or local bills granting the right to lay down railroad tracks or any exclusive privileges or franchises. In re New York Elevated R. R. Co., 70 N. Y. 327, (1877). "Clement v. City of Cincinnati, 16 W. L. B. 355, (1886); Pelton v. East Cleveland Ry. Co., 22 W. L. B. 67, (1889). "Harrison V8. The Mt. Auburn Cable Ry. Co., 17 W. L. B. 265, (1887). In an action of trespass for personal injuries, a person can- not show that the unauthorized use of electricity by the company con- stitutes a nuisance per se. Potter V. Scranton Trac. Co., 176 Pa. St. 2Y1, 35 Atl. Rep. 188, 4 Am. & Eng. R. Cafl. (N. S.) 307, (1896). See also Louisville & Nashville R. R. v. Mississippi & Tennessee Ry. Co., 92 Tenn. 681, 22 S. W. Rep. 920, (1893). "Where a railroad company is chartered by a special act of In- corporation which contains no re- striction as to the gauge of its track, it has the right to adopt any gauge in ordinary use; and If it adopts the narrow gauge at the time of completing its road and uses the same continuously for many years thereafter it is not thereby precluded from afterwards making any change in Its gauge or the character of its rails, provided it keeps within the limits of its charter rights. Millvale v. Ever- green Ry. Co., 131 Pa. St. 1, (1889). "Des Moines St. Ry. Co. v. Des Moines Broad-Gauge R. R. Co., 74 Iowa 585, 38 N. W. Rep. 496, (1888). Where a city by ordinance grants a right of way to a railway com- pany for the purpose of laying its tracks through certain streets, and the ordinance is silent as to the width of the track, the company will not be enjoined at the suit of abutting owners from changing its track from a narrow to a broa«Ante sees. 80, 91. provement Co., 1 Pa. Dist. Rep. "'Ante sec. 95.' 288, (1892), In which the court held =' See sec. 91, ante, note. § 102.J ABUTTING PEOPEETT EIGHTS OF OWNEES. 18Y entitled to recover in a single action for all damages past and prospectiTe.''® The ISTew York rule permits a recovery only for " Denver City Irrigation & Water Co. V. Mlddaugh, 12 Colo. 434, 21 Pac. Rep. 565, (1889), where the trespass was of a permanent char- acter; Indiana, Bloomington & Western Ry. Co. v. Bberly, 110 Ind. 542, (1886), damages for the perma- nent depreciation of the value of abutting property caused by the con- struction and operation of a railroad in the street, thereby impairing the right of access; Chicago & Eastern 111. R. R. Co. V. Loeb, 118 111. 203, (1886), in which the complaint was of smoke, cinders, dust, soot, ashes, sparks of fire and other substances emitted from trains in the opera- tion of the road; Chicago & North- western Ry. Co. V. Hoag, 90 111. 339, (1878); Cooper v. Randall, 59 111. 317, (1871). The owner cannot split his cause of action, but must recover all dam- ages, past and prospective, in one action. City of Lafayette v. Nagle, 113 Ind. 434, (1887) ; North Vernon V. Voegler, 103 Ind. 314, (1885). So of the erection of an embankment for a railroad track Interfering with the natural channel of a stream, StodghlU V. C, B. & Q. R. R. Co., 53 Iowa 341, (1880) ; and diverting a stream by the excavation of a ditch. Powers v. City of Council Blufes, 45 Iowa 652, (1877); and damages caused by locating rail- road tracks too near plaintiff's premises, Cadle v. Muscatine & Western R. R. Co., 44 Iowa 11, (1876). So for land taken for a railroad without consent or compen- sation, Witchita & Western R. R. Co. V. Fecheimer, 36 Kan. 45, (1886) ; and for permanent depre- ciation caused by obstructing an alley. Central Branch Union Pacific R. R. Co. V. Andrews, 26 Kan. 702, (1882). So held for obstructing ac- cess to abutting property by the construction and operation of three parallel tracks in the street, JefEer- sonville, Madison & Indianapolis R. R. Co. V. Esterle, 13 Bush (Ky.) 667, (1878) ; and where passing and standing trains Interfered with ac- cess, Ellzabethtown, Lexington & Big Sandy R. R. Co. v. Combs, 10 Bush (Ky.) 382, (1874). So held in Massachusetts for damages caused by diverting a stream, Fowle v. New Haven & Northampton R. R. Co., 112 Mass. 334, (1873). The same doctrine was applied in Troy V. Cheshire R. R. Co., 23 N. H. 83, (1851). So held In an action for damages caused by a change of grade and laying an additional track without compensation. Little Miami R. R. Co. v. Hamilton, 40 Ohio St. 496, (1884), in which the lessor company and its lessee were held to be jointly liable. See Chi- cago North Shore St. Ry. Co. v. Payne, 192 111. 239, 61 N. E. Rep. 467, 23 Am. & Eng. R. Gas. (N. S.) 706, (1901), where the depreciation of the market value was due to the erection of a power-house. The conveyance of abutting prop- erty does not have the effect of an assignment of a cause of action for damages Instituted by the grantor previous to the conveyance. FllcK'- Inger v. Terminal Ry. Co., 98 la. 358, 67 N. W. Rep. 372, (1896). See also Spencer v. Metropolitan St. Ry. Co., 58 Mo. App. 513, (1894) ; Tibbetts v. West & South Town Ry. Co., 54 111. App. 180, (1894). Am. R. R. & Corp. Rep., Vol. I, pp. 710-724, contains a valuable collec- tion of cases on this subject. 188 THE LAW OF STEEET RilLTVATS. [I 108. past damages,*" but the practice in that state, as settled in the elevated railroad cases, authorizes a conditional injunction against the construction and operation of the road, to take effect upon the failure of the company, within a given time, to pay the amount of compensation fixed by the court as the measure of damages caused by the appropriation of the abutter's property rights in the street.®^ The New York rule is followed in Nebraska and Wisconsin.®^ In Minnesota a distinction is made between the construction and operation of the road, the former giving the right to maintain an action for permanent depreciation, the latter merely affording ground for successive actions;*' and the same distinction has been made in Tennessee.** § 103. Right of eminent domain — when and where it may be exercised. — A street surface railway when duly authorized by the proper authorities, so constructed as to conform to street grades, so operated as not materially to interfere with the adja- cent proprietor's access or with the use of the street by the public, does not impose upon the soil an additional servitude, and, there- fore, may be constructed and operated without compensation to the owners of abutting lots or lands. *^ But where the route encroaches upon private property, or the construction or opera- tion is such as to impose an additional burden upon the soil, important questions arise as to the power of the corporation to appropriate property for its right of way. The power of eminent domain can be exercised only for a public use;** but street rail- "Sec. 99, ante, note. "Harmon v. Louisville, N. O. & "This point is fully covered by T. R. Co., 87 Tenn. 614, (1889), two the cases cited in Chap. VII. members of the court dissenting, "^ Omaha & Republican Valley R. the majority holding that, as the R. Co. V. Standen, 22 Neb. 343, improper use could be abated, the (1887), by a divided court; Carl v. court could not assume that it Sheboygan & Pon du Lac R. R. Co., would continue. 46 Wis. 625, (1879) ; Ford v. Chi- « See sec. 82, ante, cago & Northwestern R. R. Co., 14 " Weldenfleld v. Sugar Run R. R. Wis. 609, (1861), holding that full Co., 48 Fed. Rep. 615, (1892); In re compensation in one action can Niagara Palls & Whirl Pool R. R. only be obtained in a proceeding Co., 108 N. Y. 375, (1888). under the statute. The taking of land for a power- •■ Adams v. Hastings & Dakota house to generate electricity for R. R. Co., 18 Minn. 260, (1872). coal pockets for the storage of coal 103. J ABUTTING PEOPEETY EIGHTS OF OWNEES. 189 ways constructed and operated under statutory authority are to be deemed constructed and operated for public use or benefit, and the legislature may delegate the power of eminent domain for the appropriation of the right of way either to corporations, joint stock companies or individuals.*'^ Thit power being in deroga- aud tor a eondult to carry water from the river to the engine. Is not a taking tor a public use. In re Rhode Island Suburban Ry. Co., 22 R. I. 457, 48 Atl. Rep. 591, (1901). " In re Petition of Kerr, 42 Barb. 119, (1864) ; Moran v. Ross, 79 Cal. 159, 21 Pac. Rep. 547, (1889). A statute of Oregon authorizing the condemnation of a right of way by a corporation "organized for the construction of any railway," was held not to apply to street railways. Thompson-Houston Electric Co. v. Simon, 20 Ore. 60, 25 Pac. Rep. 147, (1890). But a Utah statute provid- ing that the right of eminent do- main may be exercised by "steam and horse railroads" was held to Include electric street railways. Ogden City Ry. Co. v. Ogden City, 7 Utah 207, 26 Pac. Rep. 288, (1891). Under this power one or more of the franchises of a corporation may be taken, or they may be Impaired, or their implements Interfered with to any extent upon making due compensation. In re Petition of Kerr, supra. See also sees. 117, 118, post. Where the tracks of a horse railway company, owning an exclusive franchise for that mode of carriage, are parallel on the same street with those of a cable com- pany, whereby the former sustains consequential damages, its property Is not "taken" within the mean- ing of a constitutional prohibition against the taking of property with- out compensation. Omaha Horse Ry. Co. V. Cable Tramway Co., 32 Fed. 727, (1887). In the absence of a clearly expressed Intention to the contrary, the courts will not so con- strue a railway franchise as to au- thorize one company to take the property of another already devoted to a particular use for the purpose of applying It to the £>ame use. When there is no change In the use it becomes a matter of mere private concern which does not af- fect the public Interests. But this rule applies only when the taking would result In a change of owner- ship without affecting the use of the property sought to be taken. Chicago & Northwestern Ry. Co. v. Chicago & Evanston R. R. Co., 112 111. 589, (1884). "The grant of a franchise Is of no higher order and confers no more sacred title than a grant of land to an Individual, and when public necessities require It, the one as well as the other, may be taken for public purposes, on mak- ing suitable compensation; nor does such exercise of the right of eminent domain interfere with in- violability of contracts." Balto. Turnpike v. Balto. R. R. Co., 81 Md. 247, 31 Atl. Rep. 854, 3 Am. & Eng. R. Cas. (N. S.) 177, (1895). But one corporation cannot take property of another already de- voted to a particular use for the purpose of applying It to the same use. Suburban Ry. Co. v. Metro- politan West Side Ry. Co., 193 111. 217, 61 N. E. Rep. 1090, ?4 Am. & Eng. R. Cas, (N. S.) 476, (1901). See also St. Louis Ry. Co. v. Belle- ville Ry. Co., 158 111. 390, 3 Am. & 190 THE LAW OF STREET EAILWATS. [§ 103. tion of common right cannot be exercised unless given in express terms or by necessary implication. There can be no implication in favor of the right unless it arises from a necessity so absolute that, "without it, the grant itself will be defeated. It must also be a necessity which arises from the very nature of things, over which the corporation has no control and not created by the company itseK for its own convenience or for the sake of economy.** The appropriation in invitum must be confined to the established route,** and no rights can be acquired in a public street until it has been duly established and opened.™ Where property is sought to be condemned for a purpose which is partly illegal, and it cannot be determined how much of the property is necessary for the purpose that is legal, the proceedings will be dismissed. '^^ Under constitutional provisions forbidding the tak- ing of private property for public use without just compensation, Eng. R. Cas. (N. S.) 53, (1895); East St. Louis Ey. Co. v. Belleville Ry. Co., 159 111. 644, 42 N. B. Rep. 974, (1896), holding that it is proper to proceed under the power of emi- nent domain to compel connection between railways; Chicago Ry. Co. V. Met. Ry. Co., 152 111. 519, 38 N. E. Rep. 736, 3 Am. & Eng. R. Cas. (N. S.) 45, (1894) ; Indianapolis Ry. Co. V. Indianapolis & Martinville Ry. Co., 33 Ind. App. 337, (1904); New York, N. H. & H. R. R. v. Fair Haven Ry. Co., 70 Conn. 610, 40 Atl. Rep. 607, (1898). As to the appropriation of cor- porate franchises see also sees. 117, 118, post. "Pennsylvania R. R. Co.'s Ap- peal, 98 Pa. St. 150, (1880) ; Appeal of Sharon Ry. Co., 122 Pa. St. 533, 17 Atl. Rep. 234, (1888). "Under the New York Railroad Act of 1850, which allows a rail- road corporation to condemn such land as Is required for the purposes of its Incorporation, a company or- ganized to construct and operate a street railroad along certain sped- fled streets cannot condemn land for the purpose of constructing a railroad line, no part of which runs on those streets; and only such and BO much land may be condemned as the proper execution of the corporate purposes require. In re South Beach R. R. Co., 119 N. Y. 141, 23 N. B. Rep. 486, (1890), affirm- ing 53 Hun 131, (1889). See also Harvey v. Aurora & Geneva Ry. Co., 174 111. 295, 51 N. E. Rep. 163, (1898). ™A railroad company cannot build its tracks on a street which has been laid out but not opened, until compensation has been made to the owners of the land on which the street is located; and it is im- material that the assent of the city has been obtained, and that the railroad company has given bond to protect the city. Appeal of Beidler, 17 Atl. Rep. 244, 23 W. N. C. 451, 1 Monaghan 236, (1889); Burns v. Multnomah Ry. Co., 8 Sawyer 543, (1883). " In re Metropolitan Elevated Ry. Co., 12 N. Y. Supp. 506, (1891). § 104.] ABUTTING PEOPEETY EIGHTS OF OWNEBS. 191 the fact that a railway is constructed along a city street, under a charter from the state and a contract with the city and county, does not deprive the owner of the fee of his right to compensa- tion therefor.''* § 104. Public use a question of law The theory on which the power of eminent domain is conferred upon private corpora- tions and, rarely, upon individuals, is that the property so acquired is to be devoted to some public use. This is fairly inferred from the language of various constitutional provisions, and is the conclusion expressed in numerous decisions. So good an authority as Mr. Oooley, however, while conceding that such "is unquestionably the result of the authorities," expresses his ia dividual opinion on this point as foU'ows: "If the question were an open one, it might well be debated whether the right to authorize the appropriation of the property of iudividuals did not rest rather upon grounds of general public policy than upon the public purpose to which it was proposed to devote it."^* But there are two well established doctrines which have an important "East End St. Ry. Co. v. Doyle, dedication and subsequent to the date of the city charter, by virtue of which the ordinance is passed granting a license to use the streets for railroad purposes. Denver Cir- cle R. R. Co. v. Nestor, 10 Colo. 403, 15 Pac. Rep. 714, 721, (1889); same V. Wiggins, same v. Clark, same v.. Bigler and same v. Martin, reported in same volume, p. 728. Where an act of the legislature authorizes the construction of a: horse railway upon the road-bed of a turnpike, a subsequent act pro- viding for the compensation for the taking of such road-bed is not un- constitutional. In re Citizens' Pass. Ry. Co., 2 Pitts. Rep. 10, (1854). A railroad corporation whose road is leased to another company, may nevertheless exercise the right of eminent domain. In re Metropoli- tan Elevated Ry. Co., 2 N. Y. Supp. 278, (1888). " Cooley's Con. Llm., (7th Ed.), p. 88 Tenn. 747, 13 S. W. Rep. 936, (1890), which related to a street railway propelled by a steam dummy; Ford v. Santa Cruz R. R. Co., 59 Cal. 290, 292, (1881). But the right to build a railway In the streets of a city Is not dependent on the consent of the city unless the company's charter expressly so provides; hence a right of way may be acquired by condemnation pro- ceedings under legislative enact- ment as in other cases. Millvale v. Evergreen Ry. Co., 131 Pa. St. 1, 18 Atl. Rep. 903, (1889). Constitutional provisions requir- ing compensation for property ap- propriated to a public use may be invoked to protect the right of abutting owners in city streets, al- though the constitution takes effect subsequent to the passage of the law under which the streets are dedicated, subsequent to the act of 192 THE LAW OF STEEET RAILWAYS. [§ 105. practical bearing on this question: first, it is well settled that matters which relate exclusively to public policy lie solely within the province of the legislature; and, second, it is a familiar rule that what constitutes a public use is a judicial question; and, while the character of the proposed use is necessarily involved in many legislative acts, the determination of the legislature is siibject ultimately to judicial review and control. Accordingly it is held that a railroad corporation whose business is not strictly that of a common carrier cannot exercise the power of eminent domain. ''* § 105. Conditions precedent — ^As the right of eminent domain is derived only from the sovereign power of the state, no condi- tions or limitations can be imposed upon its exercise, unless such power is expressly conferred by statute. Hence, where the consent of the local authorities to the construction of a street railway is required by constitution or statute, a company, if clothed with the power, may proceed in the exercise of the right of eminent domain to appropriate property or franchises necessary for its right of way without first obtaining such consent.'^® 766, note. For a very able discus- '"Metropolitan R. R. Co. v. Chl- sion of this subject see Lewis on cago West Division R. R. Co., 87 Em. Dom., (3d Ed.), sec. 250 et seq. 111. 317, (1877). "Lewis on Em. Dom., (3d Bd.), It Is not a condition precedent to sec. 251, citing numerous cases. the right to condemn property that The general rule is now well set- authority has been previously ob- tled that when the uses are in fact tained from the municipality to public, the necessity or expediency locate or construct a railway on a of taking private property for such street. Suburban Ry. Co. v. Met- uses by the exercise of the power ropolitan West Side Ry. Co., 193 of eminent domain, the instru- 111. 217, 61 N. E. Rep. 1090, 24 Am. mentalities to be used and the ex- & Eng. R. Cas. (N. S.) 476, (1901). tent to which the right shall be See also Tudor v. Chicago Ry. Co., tolerated, are questions appertain- 154 111. 129, 39 N. E. Rep. 136, Ing to the political and legislative (1894), holding that an elevated branches of the government, while railway company cannot condemn on the other hand the question beyond the limits fixed by ordi- whether the uses are in fact public, nance. See also Lange v. La Crosse so as to justify the taking in in- & E. Ry. Co., 118 Wis. 558, (1903), vitum of private property therefor, where the abutting owner was en- is a judicial question to be deter- titled to compensation as a condl- mined by a court. In re Niagara tion precedent to the placing of Falls & Whirlpool R. R. Co., 108 N. tracks in front of his premises. T. 375, (1888). But under a statute of New York § lOC.J AHUTTINQ PEOPEETY EIGHTS OF OWNEES. 193 § 106. Appropriation proceedings and practice.-^A company cannot exercise the right of eminent domain unless it is a cor- poration de jure and not simply de factoJ* The legal existence of a corporation authorized to construct a railroad is at the foundation of the right to take property for its use in the exercise of the right of eminent domain. It is a fact which it is compelled to allege in proceedings to acquire land, and it may be contro- verted; therefore, if by the non-performance of any of the condi- tions of its charter the corporation has forfeited or lost its cor- porate rights and powers, that fact may be asserted by any person whose land or property it seeks to appropriate, in answer to the application.'^^ In proceedings to appropriate the right of way, a company must show ; first, its legal existence ; second, a legislative warrant for such proceedings on its part; third, that the business which it is organized to carry on is public; and, fourth, that the (Street Surface Railway Act, N. Y. Laws of 1884, Chap. 252, sec. 3) authorizing street railway com- panies to construct and operate railways along streets in cities, towns and villages and through any private property which they might acquire for that purpose, providing, that the consent of the local au- thorities having control of the streets should be first obtained, without the consent of the highway commissioners a company cannot maintain a proceeding to condemn private property along the proposed route. In re Rochester Ry. Co., 123 N. Y. 351, 361, 25 N. B. Rep. 381, (1890); distinguishing, In re New York Central & Hudson River R. R. Co., 77 N. Y. 248, (1879). See also In re Kings County Elevated R. R. Co., 105 N. Y. 97, (1887). Where a street railway company seeks to appropriate a right of way under a general act requiring a map or profile of the route to be filed, this requirement is held to be a conriition precedent to a right to 13 condemn. In re Rochester Electric Ry. Co., 123 N. Y. 351, (1890), affirm- ing 10 N. Y. Supp. 379, (1890). Un- der a statute requiring a given per cent of the capital stock to be paid up as a condition of the right to appropriate lands, the payment of stock subscriptions by certified check is equivalent to a payment In cash and a substantial compli- ance with the statute. In re Staten Island Rapid Transit R. R. Co., 37 Hun 422, (1885). "New York Cable Co. v. Mayor, 104 N. Y. 43, (1887); New Albany & Salem R. R. Co. v. O'Daily, 13 Ind. 353, (1859). "In re Brooklyn, Wlnfleld & Newton R. R. Co., 72 N. Y. 245, (1878), In which the property owner was permitted to challenge the legal existence of the company, asserting the forfeiture of Its char- ter on the ground that It had failed to construct its road within the time required by law. See also cases cited under sees. 44, 46, ante. 194 THE LAW or STREET RAILWAYS. [§ 107. taking of private property for the purposes of the corporation is a taking for public use.'^* § 107. Measure of damages — The true test as to the damages to be paid for land taken for public use is its market value for any purpose for which it is adapted or to which it may be applied.''* But if it has no market value, resort may be had to other appro- priate tests to ascertain the amount of compensation which should be paid."** In the absence of facts showing a permanent injury "In re Split Rock Cable Co., 58 hattan Ry. Co. v. Taber, 78 Hun Hun 351, (1890). In this case the company proposed to construct an elevated tramway and to prosecute thereon a business which was not strictly that of a common carrier. See also In re Niagara Falls & Whirlpool R. R. Co., 108 N. Y. 373, (1888) ; Mills on Em. Dom., sec. 14; In re Staten Island Rapid Transit Co., 103 N. Y. 251, (1886). See also Dewey v. Chicago Ry. Co., 184 111. 426, 56 N. E. Rep. 804, (1900), holding that municipal au- thorities cannot confer power to condemn. Commissioners appointed under the statute of New York to assess damages are untrammeled by tech- nical rules of evidence and unre- stricted in respect to their sources of information and must be gov- erned by their own judgment, which is not to be controlled or out- weighed by the opinion of wit- nesses, however numerous they may be, and is not subject to re- view by the court. In re Staten Island Rapid Transit Co., 47 Hun 396, (1888). When an award has been made and a final order has been entered a company is entitled to possession of property condemned, and defend- ants. In case they appeal, are re- quired to stipulate not to disturb the company's possession during the pendency of the appeal. Man- 434, (1894). ™ The rule fixing the damages for land condemned for the right of way on a basis different from their market value Is to be applied only to property which, in its use or condition, has no market value. Chicago & Evanston R. R. v. Dresel, 110 111. 89, (1884). And in arriving at such market value it is competent to prove the most valuable use for which it is adapted. West Side Ry. Co. v. Siegel, 161 111. 638, 44 N. B. Rep. 276, (1896). See also Taylor v. Bay City St. Ry. Co., 101 Mich. 140, 59 N. W. Rep. 447, 1 Am. & Eng. R. Cas. (N. S.) 165 (1894); Liedman v. Staten Island Midland Ry. Co., 18 App. Div. (N. Y.) 368, (1897); Thompson v. Citizens' Trac. Co., 181 Pa. St. 131, (1897) ; Osborne v. Del. Co. Ry. Co., 9 Pa. Super. Ct. 632, (1899); Chicago Ry. Co. v. Payne, 192 111. 239, 61 N. E. Rep. 467, 23 Am. & Eng. R. Cas. (N. S.) 706, (1901); Lorain Street Ry. Co. V. Sinning, 17 Ohio C. C. 649, (1895). ^ The value of a part of a track taken for a railroad crossing can- not be ascertained by any reference to market values. It has a sub- stantial value, which well informed, intelligent railroad men readily know how to estimate. Chicago & § 107.] ABtrTTIITG PEOPEETT ^EIGHTS OF OWNEES. 195 to abutting property, the measure is the difference between its fair rental value with the railway track and its fair rental value without ; but damages can accrue to the owner only while entitled to its possession, and not while in the possession of a lessee.®^ In the condemnation of a right of way, under a constitutional or statutory provision requiring full compensation to be made without regard to benefits, the damages allowed cannot be diminished on account of benefits to lands not taken.*^ Northwestern Ry. Co. v. Chicago & Evanston R. R. Co., 112 111. 589, (1884). "■ Carli V. Union Depot St. Ry. & Transfer Co., 32 Minn. 101, (1884) ; Chicago & Evanston R. R. Co. v. Dresel, 110 111. 89, (1884). There can be no recovery for loss of busi- ness or profits. Chicago & Evan- ston R. R. Co. V. Dresel, supra. As an element of damages to an abutting lot owner it may be shown that, by the operation of the rail- way, travel has been diverted from the street, for the purpose of show- ing that the rental value of prop- erty on that street has been diminished. Stange v. City of Dubuque, 62 Iowa 303, (1883). '= Inter-State Consolidated Rapid Transit Co. v. Simpson, 45 Kan. 714, 26 Pac. Rep. 393, (1891). See Berkson v. Kansas City Ry. Co., 144 Mo. 211, (1898).. Under the provision of a charter, that "whenever any estate abutting on a street or highway upon or over which the rails of said corpo- ration shall be laid shall be injured thereby the said corporation shall be liable to pay the owner or own- ers thereof the damages thereby caused to said street," damages can be recovered for injuries resulting from the laying of the rails only as distinguished from those resulting from the use of them as laid. Vose V. Newport St. Ry. Co., 17 R. I. 134, 20 Atl. Rep. 267, (1890). In West Chicago St. Ry. Co. v. Morrison Co., 160 111. 288, 43 N. E. Rep. 393, (1896), it was held that it is proper for a jury to award ex- emplary damages where a street railway company enters by force upon the premises of another In or- der to construct a tunnel for an extension of its line. CHAPTER V. JOINT USB OP STREETS, TRACKS, APPLIANCES AND MOTIVE POWER. § 108. Monopoly in the use of streets not favored — exclu- sive grants unauthorized. 109. Qualifications of the general rule. 110. Right of one company to use the track of another — grade crossings. 111. Joint use involving change in construction of tracks and the use of a new motive power. 112. Coach companies using rail- way tracks. 113. Right to prevent unauthor- ized use of tracks. 114. Right to compensation for joint use. § 115. How compensation a s c e r- tained and determined. 116. Measure of compensation. 117. Appropriation of right to joint use. 118. Appropriation of right to ex- clusive use. 119. Joint use of motive power. 120. Appropriation of the joint use of power. 121. Joint use of poles and other fixtures. 122. Priority in time gives prior- ity of right. 123. Simultaneous grants. 124. Transfer of grant for joint use. 125. Changes in equipment and traffic. § 108. Monopoly in the use of streets not favored — exclusive grants unauthorized — In the development of street railway law no question has been more perplexing, nor has any more severely taxed the ingenuity of legislators and the learning of courts, than those growing out of the conflicting rights and interests of different companies seeking to occupy the same streets or to use the same tracks. Experience has gradually led to the adoption of a more enlightened policy in dealing with this im- portant subject than that which prevailed during the experi- mental stage of such enterprises, when very liberal charters were granted to those willing to invest, and franchises were conferred in terms broad enough to create perpetual monopolies. The results of such grants have led courts to deny the power of municipal authorities to make them without explicit legislative sanction.'^ It is now the well settled rule, followed by nearly ' See cases cited under sees. 6, L. R. R. Co. v. City of New Orleans, 17, ante; also New Orleans City & 44 La. Ann. 748, 11 So. Rep. 77, 196 § lOS.J .TOIXT USE OF STREETS, TEACKS AXD TOWER. 19Y every court in which the question has arisen, that a street rail- way is merely a modified use of the highway as a public thoroughfare, and that, therefore, the privilege or license con- ferred upon one to use certain streets for such a purpose does not exhaust the power, or prevent its subsequent exercise by a municipality with reference to parallel streets or on those subject to a prior grant. It would be inconsistent to declare, on the one hand, that a railway constructed at street grade to accommodate local travel is a public highway to such an extent at least that abutting owners cannot prevent its operation, and, on the other hand, that it is so far private and exclusive as to prevent a similar use of the same streets by others. Streets are dedicated to public use as thoroughfares, and, unless there be some restriction on the use when they are dedicated or acquired, no limitation can be imposed which will impair their utility for purposes of public travel. Hence, local authorities have no implied power to grant the exclusive use of certain streets to particular individuals or corporations. Where such an intent is not clear it will not be presumed, and the gTant, if attempted, will be held to be ultra vires and void. Whenever the public interest dentands, the legislature or the local authorities may grant the use of any streets, already occupied by a street railway, to another person, natural or artificial, for similar purposes." That a city council (1892); Same v. Same, 44 La. Ann. Huston, 123 Iowa 157, (1904). And 728, 50 Am. & Eng. R. Cas. 391, 11 while the legislature can empower So. Rep. 78, (1892). Compare Second a municipality to make exclusive & Third St. Pass. Ry. Co. v. Green grants It must do so by "express & Coates St. Pass. Ry. Co., 3 Phila. words," or the power In the munici- 430, (1859); City of Houston v. pality must "arise from language Houston City St. Ry. Co., 83 Tex. used by Implication so direct as to 548, 19 S. W. Rep. 127, (1892). amount to the same thing." Park- See also Ashevllle St. Ry. Co. v. hurst v. Capital City Ry. Co., 23 West Ashevllle Ry. Co., 114 N. C. Ore. 471, 32 Pac. Rep. 304, 56 725, 19 S. E. Rep. 697, (1894); De- Am. & Eng. R. Cas. 455, (1893). trolt CItlz. St. Ry. Co. v. City of See also Atchison Ry. Co. v. Gen- Detroit, 110 Mich. 384, 68 N. W. eral Elec. Ry. Co., 112 Fed. 689, BO Rep. 304, 35 L. R. A. 859, 5 Am. & C. C. A. 424, (1902) ; Bell v. Town Eng. R. Cas. (N. S.) 15, (1896); of Westmount. 9 Quebec Q. B. 34, Citizens' St Ry. Co. v. Detroit Ry. (1900). Co., 171 U. S. 48, (1897); Peoples "One of the principal objects to Trac. Co. v. Atlantic City Ry. Co., be obtained by the exercise of this 71 N. J. L. 134, (1904) ; Thurston v. power is to provide facilities for 198 THE LAW OF STEEET RAILWAYS. [§ 108. cannot deprive itself or its successors of the right to make addi- tional grants in or across the same street is abundantly sustained by the authorities.^ operating lines between the busi- ness portions of tlie larger cities and Widely divergent points in the suburbs. But a multiplicity of con- verging lines passing over a single street rnight prove a serious ob- stacle to other modes of travel. The supreme court of Michigan, recognizing the danger of an abuse of the power, says: "A common council cannot properly so multiply street railway tracks in a particular street as to interfere with the rights of the public in the street." Street Railway Co. of Grand Rapids V. West Side St. Ry. Co., 48 Mich. 433, (1882). See New Orleans City and Lake Ry. Co. v. City of New Or- leans, 44 La. Ann. 728, 11 So. Rep. 78, 50 Am. & Eng. R. Gas. 391, (1892) ; Elec. City Ry. Co. v. Niagara Falls Co., 95 N. Y. Supp. 73, 48 Misc. Rep. 91, (1905), holding that in the absence of statutory restriction a city council has the power to grant a right to construct a railway over substantially the same route as that embraced within the franchise of another company. ' Henderson v. Ogden City Ry. Co., 7 Utah 199, 26 Pac. Rep. 286, (1891); Canal & Claiborne St. Ry. Co. v. Crescent City R. R. Co., 41 La. Ann. 561, (1889); Ft. Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 169, (1887); New Orleans City Ry. Co. V. Crescent City R. R. Co., 12 Fed. Rep. 308, (1881) ; New York & Harlem R. R. Co. v. Forty-second St. & Grand St. Ferry R. R. Co., 50 Barb. 285, (1864); Christopher & Tenth St. R. R. Co. v. Central Crosstown R. R. Co., 67 Barb. 315, (1875) ; Birmingham & Pratt-Mines St. Ry. Co. V. Birmingham St. Ry. Co., 79 Ala. 465, (1885) ; Des Moines St. R. R. Co. V. Des Moines Broad- Gauge St. R. R. Co., 73 Iowa 513, (1887). See also Florida Central Ry. Co. V. Ocala St. & Sub. Ry. Co., 39 Fla. 306, 22 So. Rep. 692, 7 Am. & Eng. R. Gas. (N. S.) 686, (1897). "The privilege which a railroad company acquired by assent of city authori- ties that its tracks may be laid down, and operated in the streets of the city, can never be more than a qualified right to the use of the street, as a highway in common with every other citizen, and as no one assembly can, by giving its assent to one company, limit the power of a subsequent assembly to give a like assent to another, the right is further restricted to the use of the street as a highway in common with any other railroad company acquiring a similar right in the same street by assent of the city authorities." Brace, X, in St. Louis Transfer Ry. Co. v. St. Louis Merchants Bridge Ry. Co., Ill Mo. 666, (1892). See Gulf City St. Ry. Co. v. Gal- veston Ry. Co., 65 Tex. 502, (1886), deciding that the city's dominion over the portion of the street not covered by tracks already laid is not impaired; Street R. R. Co. of Grand Rapids V. West Side St. R. R. Co., supra; Covington St. R. R. Co. v. Covington & Cincinnati St. Ry. Co., 1 Ky. Law Rep. 318, (1880); Jack- son County Horse R. R. Co. v. In- ter-State Rapid Transit Co., 24 Fed. Rep. 306, (Kan., 1885), holding that an elevated railroad might be con- structed through certain streets in- cluding those already occupied by a § 109. J JOIKT USE OF STREETS, TRACKS ^ND POWEE. 199 § 109. Qualifications of the general rule. — The general rule stated in the preceding section is subject to some qualiiications. In the Michigan case there cited, attention is called to a possible abuse of the power. Fidelity to the fundamental doctrine, that the character of a street as a public highway must be maintained, should afford redress to the owners or occupants of abutting property, the enjoyment of whose private easements in the street is rendered impossible by the multiplication of tracks, turn-outs. surface road laid under an ordi- nance granting the company "the sole right, for the space of twenty- one years to construct, maintain and operate their railways over and along all the streets in said city;" Brooklyn City & Newton R. R. Co. V. Coney Island & Brooklyn R. R. Co., 35 Barb. 364, (1861); Brooklyn Central & Jamaica R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. 420, (1861), holding that one may lawfully be crossed by another; Louisville City Ry. Co. v. Central Pass. R. R. Co., 10 Ky. Law Rep. 125, (1888); Ogden City Ry. Co. v. Ogden, 7 Utah 207, 26 Pac. Rep. 2S8, (1891), holding that one track may be crossed, intersected or "subjected to a limited use in com- mon" with another; Market St. Pass. Ry. Co. v. Union Pass. R. R. Co., 10 Phila. 43, (1873), crossing case; Citizens' Pass. Ry. Co. v. East Harrlsburg Pass. Ry. Co., 164 Pa. St. 274, 30 Atl. Rep. 159, (1894) ; In re Citizens' Pass. Ry. Co., 2 Pittsb. 10, (1859); Louisville & Portland R. R. Co. v. Louisville City R. R. Co., 2 Duvall (Ky.) 175, (1865), declaring that monopolies are odious and not implied; North Baltimore Pass. Ry. Co. v. North Ave. R. R. Co., 75 Md. 233, 23 Atl. Rep., 466, (1892), holding that the tracks of one company may be used by another although such use involves a change of construction; North Baltimore Pass. Ry. Co. v. Baltimore, 75 Md. 247, 23 Atl. Rep. 470, (1892), applying the same principle to the joint use of a temporary bridge. In the last two cases the city acted under a general reservation of power to grant joint use. See also Peoples' Pass. Ry. Co. V. Union Pass. Ry. Co., 15 Pa. C. C. Rep. 498, (1894). The same principle is recognized in many of the cases cited under other sections of this chapter, in which companies were permitted not only to occupy the same streets, but also to use the same tracks. See also Mills on Em. Dom. (2d Ed.), sec. 39; Elliott on Roads and Streets (2d Ed.), sees. 749, 750. In New York, by the act of 1884, a company is prevented from constructing a railway "on a street where a like railway has been laid, without the consent of the company owning or operating the same." For a construction of that act see New York Cable Ry. Co. V. Chambers St. & Grand St. Ry. Co., 40 Hun 29, (1886). If the first grant be general and the last specifies a particular portion of the streets upon which a track may be laid, the enjoyment of the right un- der the specific grant will be pro- tected. Ft. Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 169, (1887). Where one company had 200 THE LAW OP STEEET EAILWAYS. [§ 109. cars, poles and wires. Under auch circumstances, relief should be granted, notwithstanding the general rule that the legislative discretion of municipal authorities is not subject to review by the courts. And, while a prior occupant, in the lawful enjoy- ment of its franchise, will not be heard to object on the ground of an apprehended or actual loss or diminution of profits arising from a division of its patronage with a second company, oases may arise where it would be entitled to protection against an invasion of its rights under color of the exercise of legislative or police powers. Either parallel lines or crossings might be so l^ated or constructed as to prevent or materially impair the use of tracks laid under an earlier grant. This would not be damnum absque injuria.* A street railway company which has obtained obtained permission to lay one track on each side of the double track of another company, and at a suitable distance from it, the ap- plication of the latter for an in- junction was denied. New York & Harlem River Ry. Co. v. Forty- second & Grand St. Ferry R. R. Co., supra. ' The grant of the right to use a street for a railway track will not prevent the city from giving a like privilege over the same street to another company, unless the right granted in the first instance cannot be made available if the privilege conferred upon the last grantee was exercised. Ft. Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 169, (1887). A subsequent grant by a munici- pality of the same right of way to another company for a like purpose will not confer on the second grantee the right to take posses- sion of the right of way, so granted, where it will materially interfere with the right of way of the first grantee. Hamilton O. & 0. Trac. Co. V. Hamilton & L. Elec. Tran. Co., 69 Ohio St 402, 69 N. E. Rep. 991, (1903). Where there has been granted to two corporations the right to use same street, each is bound to place its rails and use the street in such manner that the public may have the greatest benefit that can be derived from such joint use. Neither can be permitted unneces- sarily to interfere with the right of the other. Chicago General Ry. Co. V. West Chicago Ry. Co., 63 111. App. 464, (1896). See also Morris Ry. Co. V. Newark Pass. Ry., 51 N. J. Eq. 379, 29 Atl. Rep. 184, (1893) ; Chicago General Ry. Co. v. Chicago, Burl. & Quincy Ry. Co., 181 111. 605, 54 N. B. Rep. 1026, (1899). Where an exclusive franchise was granted to a horse car company, and subsequently another company was authorized to construct a cable road in the same streets, in an action by the former to enjoin the operation of the latter's road, on the ground that the second charter was In violation of the contract ob- ligations of the first. It was held that the cable company was not liable for any damage fiowlng from the mere matter of competition, or from the fact that the better facili- ties of the new road attracted pas- § 109. J JOINT USE OF STREETS, TEACKS AND POWEK. 201 the right from the proper local authorities to construct its road upon a street may cross, at gi-ade, the tracks of a steam railroad which cross at such street The rights of a steam railroad com- pany are in subordination to the use of the street as a public high- way, which includes use for a street railway.^ sengers from the old; but that the now or hereafter built." The court loss of passengers to the railway company caused by the inconveni- ence of access to those points of the route where the cable cars ran between the street cars and the sidewalk, was, though diflBcult of estimation, a legitimate element of damage. Omaha Horse Ry. Co. v. Cable Tramway Co., 32 Fed. Rep. 727, (1887). To the same effect Omaha Horse Ry. Co. v. Cable Tramway Co., 30 Fed. Rep. 324, (1887). In the latter case it was held that even if the grant of a "horse railroad" franchise meant a grant of a "street railroad" fran- chise In the contemplation of the parties, yet a grant of the monopoly contemplated was only of such forms of transportation as were then known and in existence, not of those which might subsequently be devised and used. In Pennsylvania where one com- pany may acquire exclusive street rights as against another, subject to the right to cross, the location of a track for a distance of 165 feet, on a street already occupied by another street railway, to con- nect the tracks of the second com- pany on two other streets not di- rectly opposite, has been allowed as a diagonal crossing under an act of May 14, 1889, (Laws of that year, p. 217, sec. 18), which provldea that: "Any corporation Incorpor- ated under the provisions of this act shall have the right, in its con- struction, to cross at grade, diagon- ally or transversely, any railroad operated by steam or otherwise, held that the test was, whether the crossing could be made without in- vading the rights of the first com- pany to the exclusive use of the street under its charter; that it was not a question of priority of grant or priority of right, and that as the plaintiff's right to enjoin the construction of the connecting link was doubtful, no restraining order should be granted. Braddock & Turtle Creek Ry. Co. v. Braddock Ey. Co., 1 Pa. Dist. Rep. 44, (1892). See also Penna. R. R. Co. v. Con- shohocken Ry. Co., 15 Pa. Co. Ct. Rep. 454, (1894) ; Delaware, L. & W. R. R. v. Newark Pass. Ry., 16 N. J. L. J. 243, 312, (1893); Trenton St. Ry. Co. v. United N. J. Ry. Co., 60 N. J. Eq. 500, 46 Atl. Rep. 763, (1900); Mercer Co. Trac. Co. v. United N. J. Co., 64 N. J. Bq. 588, (1903) ; Cleveland Ry. Co. v. Urbana Co., 26 Ohio C. C. 180, (1903). Where there was a subsisting contract be- tween municipality and company to the effect that during the term of the contract the city authorities were not to extend to other com- panies privileges which would im- pair or destroy the original fran- chise, a contract subsequently made by the municipality with another company, giving that company the right to lay tracks on a large num- ber Of streets when occupied by the first company, was held to be In- valid, and a writ of Injunction was Issued at the Instance of the first company. City Ry. Co. v. Citizens' Ry. Co., 186 U. S. 557, (1896). = In Pennsylvania by statute 202 THE LAW OF STREET RAILWAYS. [§ 110. § 110. Right of one company to use the track of another — grade crossings — After establishing the right of public authorities to grant successive franchises over different portions of the same street, it was a natural step in the evolution of the law to determine whether the joint use of the tracks was permissible without the consent of the proprietor. Street railway tracks are property, but from their location and mode of construction is implied the right of general use by ordinary vehicles without compensation.® While the rails remain in the street they form a part of it. The width of streets determines the number of tracks that may be laid vsdthout serious interference with general travel and the access to private property. Public convenience has been a potent factor in solving the problem, and in deference to such considerations the courts, with few exceptions, have held that the right to the joint use of tracks may be acquired upon certain conditions by legislative or municipal permission without the consent of the older company, and in many of the cases. (Laws of 1889, p. 217) street rail- ways may be constructed across steam railroads at grade, subject to the statutory power of the courts of equity (Pa. Laws 1871, p. 1360), to impose such regulations looking to the safety of the public, in refer- ence to watchmen, manner of cross- ing, and such other matters as may be necessary to render the use of the crossing the least dangerous to life and property. It has been held that such authority comes also within the police power of the state, being akin to that by which the speed of trains is limited in populous districts, and other regu- lations of a similar character en- forced. Pennsylvania R. R. Co. v. Braddock Electric Ry. Co., 152 Pa. St. 116, .(1892). In this case an in- junction was allowed to issue to restrain the construction of the street railway track until the court fixed the conditions under which the crossing could be used. In Bast St. Louis Ry. Co. v. Louisville Co., 149 Fed. Rep. 159, 99 C. C. A. 107, (1906), it was held that local au- thorities may permit railroad tracks to be constructed across street rail- way tracks. See also Penna. Co. v. Lake Erie Ry. Co., 146 Fed. Rep. 446, (1905); Cleveland Ry. Co. v. Urbana Ry. Co., 26 Ohio C. C. 180, (1903). See also sec. 114, post, n. 13; Chester Trac. Co. v. Phllada., Wilmn. & Bait. R. R. Co., 188 Pa. St. 105, 41 Atl. Rep. 449, (1898); Pittsburgh June. R. R. v. Fort Pitt Ry. Co., 192 Pa. St. 45, 43 Atl. Rep. 352, (1899); Penna. R. R. Co. v. Warren St. Ry. Co., 188 Pa. St. 74, 41 Atl. Rep. 331, (1898) ; Jackson & Suburban Trac. Co. v. Commis- sioners, 128 Mich. 164, (1901) ; Gen- eral Elec. Ry. Co. v. Chicago R. R., 184 111. 588, 56 N. E. Rep. 963, (1900). ° Citizens' Coach Co. v. Camden Horse R. R. Co., 33 N. J. Ea. 267, (1888); Pacific Ry. Co. v. Wade, 91 Cal. 449, 2V Pac. Rep. 768, 769, (1891). § IIO.J JOINT USE OF STREETS, TEACKS AND POWEE. 203 perhaps in a majority of those in which the question has arisen, that the right may he acquired -without invoking the power of eminent domain. But to protect companies already in the field against what might otherwise be manifest injustice, it is usual to provide by statute that the extent of track to be occupied in common shall be limited to some absolute fixed distance or in proportion to the mileage of the later company.^ The right to make such a grant does not exist without specific legislative 'For statutes relating to the 47 La. Ann. 1476, 17 So. Rep. 834, joint use of tracks see sec. 115, post, note. The Louisiana supreme court has very broadly asserted the right of New Orleans to grant to one com- pany the use of a street railway already constructed by another. Canal & Claiborne St. R. R. Co. v. Crescent City R. R. Co., 41 La. Ann. 561, (1889) ; New Orleans City & L. R. R. Co. V. City of New Orleans, 44 La, Ann. 728, 11 So. Rep. 78, 50 Am. & Eng. R. Cas. 391, (1892). The United States Circuit Court for the eastern district of Louisiana de- cided, in more guarded terms, that New Orleans, having made an ex- clusive grant, was not thereby estopped from granting another company the privilege of running lines across the streets in ques- tion, "nor for such short distances along such streets necessary to make connections and turn-outs for the lines running mainly on the other streets and between entirely different termini." New Orleans City Ry. Co. v. Crescent City R. R. Co. 12 Fed. Rep. 308, (1881). See also New Orleans City & L. R. R. Co. V. City of New Orleans, 44 La. Ann. 728, 50 Am. & Eng. R. Cas. 391, 11 So. Rep. 77, (1892); Canal & Claiborne St. R. R. Co. v. Cres- cent City R. R. Co., 44 La. Ann. 485, 10 So. Rep. 888, (1892). See also New Orleans & C. R. R. V. Canal & Claiborne St Ry. Co., (1895), where an electric railway company was authorized to run its cars on the tracks of a horse rail- way company; Crescent City R. R. Co. V. New Orleans & C. R. R. 48 La. Ann. 856, 19 So. Rep. 868, (1896), holding that such right must rest on express legislative permis- sion or necessary implication. In a case in Alabama the doc- trine announced was very conser- vative, the point decided being that the tracks of one company might cross those of another where the latter had "no exclusive rights," citing with approval Birmingham & Pratt Mines St. Ry. Co. v. Bir- mingham St. Ry. Co., 79 Ala. 465, (1885), in which it had been de- cided that such rights could not be exclusive. Highland Ave. & Bir- mingham St. Ry. Co. V. Birming- ham Union Ry. Co., 93 Ala. 505, 9 So. Rep. 568, (1891). "The right to take the tracks of one company for the use of another must be reserved in the grant or exist otherwise by con- tract, or such taking must be by the exercise of the state's power of eminent domain," Newman, J. in Mercantile T. & D. Co. v. Collins Park Ry. Co., 101 Fed. Rep. 347, (1900). See also Highland Ave. & B. St. Ry. Co. V. Birmingham Ry. & Elec. Co., 113 Ala. 239, 21 So. Rep. 342, (1896); South & North Ala. R. R. Co. v. Highland 204 THE LAW OP STEEET RAILWAYS. [§ 110. authority, but when the power has been conferred and properly exercised the company whose track is thus used may not object.* Ave. & B. R. R., 117 Ala. 395, 23 So. Rep. 973, (1897). See Toledo Consol. St. Ry. Co. v. Toledo Elec. St. Ry. Co., 50 Ohio St. 603, 36 N. E. Rep. 312, 1 Am. & Eng. R. Cas. (N. S.) 230, (1893), where a new company was authorized to use the tracks of the owning com- pany for a distance "not exceed- ing In length one-eighth of the dis- tance between the termini of the grantee's route,"' and Philada. St. Ry. Co.'s Petition, 203 Pa. St. 354, (1902), holding an act which gave one company, subject to the pay- ment of damages, the right to use 2500 ft. of the tracks of another company, to be unconstitutional. "New Bedford & Falrhaven St. Ry. Co. V. Acushnet St. Ry. Co., 143 Mass. 200, (1887); Pacific Ry. Co. V. Wade, 91 Cal. 449, 27 Pac. Rep. 768, (1891); Sixth Ave. R. R. Co. V. Kerr, 45 Barb. 138, (1865); Kinsman St. Ry. Co. v. Broadway & Newburgh St. Ry. Co., 36 Ohio St. 239, (1880); Louisville City Ry. Co. V. Central Pass. R. R. Co., 10 Ky. Law Rep. 125, (1888); Ogden City Ry. Co. v. Ogden, 7 Utah 207, 26 Pac. Rep. 288, (1891); Omnibus R. R. Co. V. Baldwin, 57 Cal. 160, (1881); People v. Rich, 54 Cal. 74, (1879); People v. Los Angeles Elec- tric Ry. Co., 91 Cal. 338, 27 Pac. Rep. 673, (1891); Metropolitan St. R. R. Co. V. Quincy R. R. Co., 12 Allen 262, (1866). "The common use of a track by two companies, In certain streets, rather than the use of separate tracks by them, may materially promote the convenience and en- hance the safety of the public in the use of streets * * * And though the use by the owner company may be less convenient than before, and require greater care, and the Inconvenience and care be increased when the com- panies employ different agencies and appliances for propelling their cars, that falls short of rendering the common use wholly inconsist- ent with the purposes of the orig- inal appropriation of the owning company, or of exclusion from its franchise, or property in the tracks, or of superseding or destroying the public use In which they were em- ployed." Williams, J. Toledo Con- sol. St. Ry. Co. V. Toledo Elec. St. Ry. Co., 50 Ohio St. 603, 36 N. E. Rep. 312, 1 Am. & Eng. R. Cas. (N. S.) 230, (1893). See also Los Angeles Trac. Co. v. Wilshire, 135 Cal. 654, 67 Pac. Rep. 1086, 24 Am. & Eng. R. Cas. (N. S.) 695, (1902). Where a company has refused to build an additional track law- fully required of it by the council, the city may make such changes in a proposed route as to adapt it to form a junction with some com- pany that will build it, even though in so doing a street In which the former had exclusive rights Is used as a common link. Street Ry. of Grand Rapids v. West Side St. R. R. Co., 48 Mich. 433, (1882). See also Elliott on Roads and Streets (2d EM.), sec. 766. A common council cannot com- pel an interchange of traffic be- tween companies. People ex rel. West Side Ry. Co. v. Barnard, 48 Hun 57, (1887). The right which is given to a company by the legislature, to make connections with other rail- way cbmpanles, is subject never- theless to supervision and control § 111. J JOIiNT USE OF STREETS, TEACKS AKD POWEJt. 20.'; § 111. Joint use involving change in construction of tracks and the use of a new motive power ^Where such power is expressly reserved, the right to grant the joint nse of existing tracks to a second company may be exercised by the municipal authorities, although it will involve material changes in the tracks and road- bed necessary to adapt them to a different kind of motive power. But, in such case, the original company will be entitled to com- pensation for the use of its tracks and to damages for the inter- ference with its business while the changes are being made." by the municipality wherein the railway is located; hence such com- pany cannot make a connection with another company in a city street without consent of the mu- nicipal authorities. Monroe v. Detroit Ry. Co., 143 Mich. 315, 106 N. W. Rep. 704, (1906). A street surface company cannot enforce a connection between its road and a steam railroad In order to facili- tate the free interchange of cars. Stillwater Ry. Co. v. Boston & Maine R. R., 72 App. Div. (N. Y.) 294, (1902). See also Staten Island Ry. Co. V. Staten Island Co., 34 App. Div. (N. Y.) 181, (1898). The statute of Pennsylvania authoriz- ing the use of the tracks of one street railway company by another, includes borough councils. Norris- town Pass. Ry. Co. v. Citizens Pass. Ry. Co., 3 Montg. (Pa.) 119, (1887). Where two companies, authorized by their charters to lay out and construct railways upon the same street, constructed a joint track under mutual agreement to be used for temporary purposes, it was held in Pennsylvania that a court of equity could decree a change of route of one of the com- panies and authorize the construc- tion of a separate track. Thir- teenth & Fifteenth Sts. Pass. Ry. Co. V. Union Pass. Ry. Co., 15 Phila. 275, (1881). Where not in- hibited by statute or ordinance street railway companies may make valid and binding contracts between themselves for the pay- ment by one to the other for the joint use of tracks. Canal & Clai- borne R. R. Co. V. Orleans R. R. Co., 44 La. Ann. 54, 10 So. Re;>. 3S9, (1892). And if such an agreement between two companies has been broken, relief will be given by the courts. Schenectady R. R. Co. V. United Trac. Co., 89 N. Y. Supp. 931, 44 Misc. Rep. 282, (1904); South & N. Ala. R. R. v. Highland Ave. & B. R. R., 98 Ala. 400, 57 Am. & Eng. R. Cas. 271, 13 So. Rep. ,682, (1892), where specific performance of the Con- tract was decreed. See also O'Reilly v. Brooklyn Heights Ry. Co., 89 N. Y. Supp. 41, 95 App. Div. (N. Y.) 253, (1904) ; Looney v. Met- ropolitan Ry. Co., 24 App. Cas. (D. C.) 510, (1905); South Chicago City Ry. Co. v. Chicago Elec. St. Ry. Co., 171 111. 391, 49 N. B. Rep. 576, 11 Am. & Eng. R. Cas. (N. S.) 789, (1898) ; Atlanta Co. v. Atlanta Rapid Transit Co., 113 Ga. 481, (1901); Prospect Park R. R. Co. v. Coney Island Ry. Co., 66 Hup 366, (1892); Toledo Valley Ry. Co. v. Toledo Trac. Co., 15 Ohio C. C. 190, (1897). » North Baltimore Pass. R. R. Co. 206 THE LAW OF STEEET RAILWAYS. [§§ 112, 113. § 112. Coach companies using railway tracks Tlie habitual and continuous use of street railway tracks by a coach company engaged in carrying passengers for hire in competition with the rail'way company is an infringement of the rights of the latter which may be enjoined.-'*' § 113. Eight to prevent unauthorized use of tracks While those who may lawfully use the tracks of another corporation possess rights in no sense subordinate to the owner/^ the latter may by injunction exclude the cars of other companies which have not acquired the right to a joint or exclusive use, either by V. North Ave. Ry. Co., 75 Md. 233, 23 Atl. Rep. 466, (1892). The cars of the original company were pro- pelled by animal power. The new company proposed to operate Its road by the overhead electric sys- tem, to which objection was made on the grounds, inter alia, first, because electricity was not used as a mo- tive power to propel street cars at the time the city reserved the right to grant the use of the tracks under certain conditions to another company; second, because the use of such power involved the making of alterations in the tracks and road-bed to adapt them to the new motive power. An injunction was allowed to stand until compensa- tion for the use of the tracks and damages for the temporary inter- ference were ascertained and paid. But the court held that the right reserved by the city to grant the use of the tracks to another com- pany, without specifying the mo- tive power to be used, authorized their use by a company using elec- tricity, and that the right to use such power carried with it the right to make the grant and render the privilege practical and useful to the new company. In Louisiana It Is held that, al- though compensation has been paid for joint use on an award of arbitrators, damages may be re- covered for injuries to the tracks caused by a subsequent substitu- tion of electric motors for horse cars, sec. 125, post. Where the street is wide enough tor each company to have Its own line, there is no reason for the con- demnation of the other line. Mer- cantile T. & D. Co. V. Collins Park & B. Ry., 101 Fed. Rep. 347, (1900). "Citizens' Coach Co. v. Camden Horse R. R. Co., 33 N. J. Bq. 267, (1890) ; Same v. Same, 29 N. J. Eq. 299, (1878); Camden Horse R. R. Co. V. Citizens' Coach Co., 31 N. J. Eq. 525, (1879) ; Same v. Same, 28 N. J. Eq. 145, (1878). In the last case the court said that the pub- lic right to use railroad tracks In streets for vehicles Incidentally In traveling through the streets does not authorize "a transportation company" to use them in compeitl- tion with the railroad company. "Except that the incoming com- pany must conform to the charter and reasonable regulations of the company whose tracks It uses. Second & Third St. Pass. Ry. Co. V. Green & Coates St. Pass. Ry. Co., 3 Phlla. 430, (1859); City of Chtcago V. Evans, 24 111. 53, (1860). § 114.] JOINT USE OF STREETS, TEACKS AND POWEE. 207 private agreement or in pursuance of charter rights or statutory- regulations.-^^ § 114. Eight to compensation for joint use. — For the crossing of tracks at grade -without material injury, compensation is not allowed.-^* But the joint use of a portion of a track by two or '* See cases cited under sec. 112, ante. A company having rights in the street may, by injunction, exclude another company from the same road or avenue -which it is using without authority. Germantown Pass. Ry. Co. v. Citizens' Pass. Ry. Co., 151 Pa. St. 138, 24 Atl. Rep. 1103, (1892). An injunction may be granted to prevent "straddling" the old road if thereby passage on it is impeded. Union Pass. Ry. Co. V. Continental Ry Co., 11 Phila. 321, (1876); Com. v. Bond, 214 Pa. St. 307, 63 Atl. Rep. 741, (1906). But see New York & Harlem River R. R. Co. V. Forty-Second St. & Grand St. Ferry R. R. Co., 50 Barb. 285, (1867). A company having by its charter the choice of three routes cannot complain that one of the routes which it did not adopt was used by another company. Louis- ville & Portland R. R. Co. v. Louis- ville City Ry. Co., 2 Duvall (Ky.) 175, (1865). The right to operate a street railway over the "neutral ground" In one of the streets in New Orleans is not infringed by building another at the side of the street. New Orleans City R. R. Co. V. Crescent City R. R. Co., 23 La. Ann. 759, (1871). Injunction was the remedy selected in all of the cases cited under this and the preceding sec- tion; also in East St. Louis Con- necting Ry. Co. V. East St. Louis Union Ry. Co., 108 111. 265, (1884), in which relief was denied, but upon the ground that It was not unlawful to build parallel to another road and between the same termini. In Philadelphia & Gray's Perry Pass. Ry. Co.'s Appeal, 102 Pa. St. 123, (1883), the com- pany had been granted an exclusive right to occupy certain streets. It was decided that the grant did not prevent another company from run- ning its cars in an opposite direc- tion to those of the first company. But before a company can en- join another for an alleged un- authorized use of streets, it must itself first show that it has a right to use of those streets. Denison & Sub. Ry. V. Denison Land & Invest. Co., 11 Tex. Civ. App. 157, 32 S. W. Rep. 332, (1895). See also Hamilton Ry. Co. v. Ham- ilton Co., 69 Ohio St. 402, 69 N. E. Rep. 991, (1903) ; Central Crosstown R. R. V. Met. St. R. R., 16 App. Div. (N. Y.) 229, (1897); Coatesville Ry. Co. V. Uwchlan Ry. Co., 18 Pa. Super. Ct. 524, (1901). "^New York & Harlem River R. R. Co. V. Forty-Second St. & Grand St. Ferry R. R. Co., 50 Barb. 309, (1867) ; Market St. Pass. Ry. Co. v. Union Pass. R. R. Co., 10 Phila. 43, (1873); Omaha Horse Ry. Co. v. Cable Tramway Co., 32 Fed. Rep. 727, (1887); Brooklyn Central & Jamaica R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. 420, (1861); Market St. Ry. Co. v. Central Ry. Co., 51 Cal. 583, (1877). Any mere inconvenience suffered by a com- pany on account of the crossing of 208 THE LAW OF STREET EAILWAYS. r§iii. more companies is something more than a mere incidental incon- venience; it is a partial appropriation of the property of one for the use of another for which just compensation must be made.^* its lines by the tracks of another company by permission of the proper authorltleB Is damnum absque Injuria, Chicago, Burl. & Quincy R. R. Co. v. Steel, 47 Neb. 741, 4 Am. & Eng. R. Cas. (N. S.) 325, (1896). Such crossing is not an appropriation, but a mode of exercising the public right of transit over the highway. Eliza- bethtown R. R. Co. v. Ashland R. R. Co., 96 Ky. 347, 26 S. W. Rep. 181, (1894); Canal & Claiborne R. R. Co. V. Orleans R. R. Co., 44 La. Ann. 54, 10 So. Rep. 389, 50 Am. & Eng. R. Cas. 369, (1892); New York, N. H. & H. R. R. v. Bridge- port Trac. Co., 65 Conn. 410, 32 Atl. Rep. 953, 29 L. R. A. 367, (1895); Chicago B. R. R. Co. v. West Chic. Ry. Co., 156 111. 255, 40 N. B. Rep. 1008, 29 L. R. A. 485, (1895); General Elec. Ry. Co. v. Chicago City Ry. Co., 66 111. App. 362, (1896). And on the same principle a steam railroad may cross the tracks of a street rail- way. Lynn & Boston R. R. Co. v. Boston & Maine R. R. Co., 114 Mass. 88, (1873). It has been held that a steam railroad which is to be crossed at grade by an electric railroad cannot have imposed on it the duty and responsibility of operating a derailing switch in the line of the electric railway. New York & L. B. R. R. v. Atlantic High- lands Ry. Co., 55 N. J. Eq. 522, 37 Atl. Rep. 736, (1897) ; but see Cen- tral Pass. Ry. Co. v. Phila. Wilm. & B. R, R., 95 Md. 428, 52 Atl. Rep. 752, 27 Am. & Eng. R. Cas. (N. S.) 392, (1901), holding that a steam railroad must supply and pay for safety gates. But a contract made by an electric railway company with a steam railroad company whose tracks It crosses, to pay one-half the expense of a watch- man at the crossing, is valid and founded on sufficient consideration, although the former could have crossed the latter's tracks with or without the latter's consent. Rich- mond Ry. Co. v. Richmond P. R. R. Co., 96 Va. 670, 32 S. E. Rep. 787, (1899). As to apportionment of cost at crossings, see Detroit, Ft. Wayne Ry. Co. v. Commiss. of Rys., 127 Mich. 219, 86 N. W. Rep. 842, 22 Am. & Eng. R. Cas. (N. S.) 732, (1901); West Jersey & S. R. R. Co. V. Atlantic City Ry. Co., 65 N. J. Eq. 613, (1904); Maine C. R. R. V. Waterville & P. Ry. Co., 89 Ma 328, 36 Atl. Rep. 453, (1896) ; Lewis on Em. Dom. (3d Ed.), sec. 424. "Second & Third St. Pass. Ry. Co. V. Green & Coates St. Pass. Ry. Co., 3 Phila. 430, (1859) ; In re Citi- zens' Pass. Ry. Co., 2 Pittsb. 10, (1859), compensation to a turnpike company; Sixth Ave. R. R. Co. v. Kerr, 45 Barb. 138, (1865) ; St. Louis Ry. Co. V. Southern Ry. Co., 105 Mo. 577, 15 S. W. Rep. 1013, (1891); Kinsman St. Ry. Co. v. Broadway & Newburgh St. Ry. Co., 36 Ohio St. 239, (1880) ; St. Louis Ry. Co. v. Southern Ry. Co., 105 Mo. 577, 16 S. W. Rep. 960, (1891); Metro- politan Ry. Co. V. Highland St. Ry. Co., 118 Mass. 290, (1875); Louis- ville City Ry. Co. v. Central Pass. R. R. Co., 10 Ky. Law Rep. 125, 87 Ky. 223, (1888); Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken R. R. Co., 20 N. J. Eq. 61, (1869); Union Pass. Ry. Co. V. Continental Ry. Co., 11 § 115. J JOINT USE OF STI!EETR, TEAOKS AND POWEE. 200 § 115. How compensation ascertained and determined — Where it is held that the hostile appropriation or acquisition of the joint use does not involve an exercise of the right of eminent domain, the amount of compensation to be paid where the parties cannot agree is fixed by arbitrators, common councils, commis- sioners, or by courts without the intervention of a jury. On principle, it is not clear why it should be necessary to impanel a jury to determine the total value of one mile of track, but not necessary to ascertain in the same way one-half the value of two miles. Even in some of the states where the constitution pre- scribes the mode of assessing compensation in condemnation proceedings, a diiierent mode of procedure is followed in the assessment of compensation for the joint use of street railways, predicated on a supposed distinction between the issues to be tried. In one class of cases it is said that the power of eminent domain is invoked to take private property for public use, in the other class that the somewhat vague and elastic police power is called into exercise. Accordingly, in some jurisdictions it may be necessary to call a jury to assess the value of a square foot of ground or the exchisive use of a single rod of track at the terminus of some line, the value being merely nominal, while imder the sheltering mantle of the same fundamental law a city council may, without the right of appeal, fix absolutely the compensation to be paid for a substantial interference with and continuing joint use of valuable property, when the damages fully estimated Phila. 321, (1876), compensation Co., 75 Md. 222, 23 Atl. Rep. 463, for connecting with trades of (1S92) ; North Baltimore Pass. Ry. another company; Pacific Ry. Co. Co. v. North Ave. Ry. Co., 75 Md. V. Wade, 91 Cal. 449, 27 Pac. Rep. 233, 23 Atl. Rep. 466, (1892), in 673, (1891); Union Depot Co. v. which the second company was en- Southern Ry. Co., 105 Mo. 562, 16 joined until compensation should he S. W. Rep. 923, (1891); Jersey City determined and paid. See also & Hoboken R. R. Co. v. Jersey City Highland Ave. & B. R. R. Co. v. & Bergen R. R. Co., 21 N. J. Eg. 550, Birmingham Ry. Co., 93 Ala. 505, 9 (1870); Camhridge R. R. Co. v. So. Rep. 568, 50 Am. & Eng. R. Charles River St. Ry. Co., 139 Mass. Gas. 422, (1890); Birmingham 454, (1885); Metropolitan R. R. Co. Trac. Co. v. Birmingham Ry. & V. Quincy R. R. Co., 12 Allen 262, Blec. Co., 119 Ala. 129, 24 So. Rep. (1866); Metropolitan R. R. Co. v. 368, (1898); Toledo Consol. St. Ry. Broadway R. R. Co., 99 Mass. 238, Co. v. Toledo Elec. St. Ry. Co., 50 (1868); Koch v. North Ave. R. R. Ohio St. 603, 36 N. E. Rep. 312, 1 14 210 THE LAW OF STREET EAILWAYS. [§ 115. amoTint to many thousands of dollars. The law presumes that all public bodies, including city councils, will discharge their duties faithfully and intelligently; but courts are entitled to the benefit of the same presumption. In judicial proceedings to assess damages the parties are entitled to be present in person and to be represented by counsel; courts are required to take evidence, to which jurors should give due weight. The court instructs the jury as to its duties, controls the admission and exclusion of testimony and sets aside unwarrantable verdicts. Its rulings again are subject to review, and in due course of law no party's rights are concluded until passed upon by a court of last resort. Under the usual statutory provisions regulating the assessments of damages in such cases by municipal authorities, the council is not required to hear evidence or argument. The most important questions affecting vested rights, vested at least as against every interest or claim of a subsequent rival company, are submitted to a body of laymen, whose services are gratuitous, whose knowledge of the facts which should control their action must of necessity be limited, and from whose decision there is no appeal. The destruction of a franchise, even more than the injury to tracks and appliances, involves consequences which are necessarily serious, and may be ruinous. With due respect to those courts which have held otherwise, and aside from the dangerous con- sequences to be apprehended from committing such powers to non-judicial tribunals, it may still be considered an open question, worthy of further investigation and consideration by our courts, whether the appropriation or the acquisition in invitum of the joint use of railway tracks, does not involve the exercise of the power of emiaent domain.-'' Am. & Bng. R. Cas. (N. S.) 230, compelling one company to admit (1893) ; Toledo Ry. Co. v. Lima & another to the joint use of its Toledo Ry. Co., 79 Ohio St. 136, tracks: Union Depot Co. v. South- (1908); Cincinnati N. Trac. Co. v. ern Ry. Co., 105 Mo. 562, 16 S. W. Pittsburg, C, C. & St. L. Ry. Co., Rep. 920, 4 Am. R. R. & Corp. Rep. 79 Ohio St. 243, (1908); Harrisburg 622, (1891); St. Louis R. Co. v. Co. V. Harrisburg Ry. Co., 177 Pa. Southern Ry. Co., 105 Mo. 577, 15 St. 585, 35 Atl. Rep. 850, (1896). S. W. Rep. 1013, (1891); Covington ^° In the following cases it was Ry. Co. v. Covington & Cincinnati held that the police power Is a Ry. Co., 19 Am. Law Reg. 765, sufficient warrant of authority for (1880), in which, however. Gofer, C. § 116.] JOINT USE OF STREETS, TEACKS AND POWER. 211 § 116. Measure of compensation. — Those who are authorized to fix the amoimt of compensation can find but little in the statutes and ordinances on the subject to aid them in the discharge of that duty. In some states, "just compensation" is to be allowed. A not uncommon, although it may be a very inadequate, measure of damages is "one-half of the cost of constructing the J., speaking for the Kentucky Court of Appeals, said that the right could be "sustained upon another ground equally, if not more satisfactory," referring to the right of eminent domain; New Orleans City & L. R. R. Co. V. City of New Orleans, 44 La. Ann. 748, 11 So. Rep. 77, (1892) ; Canal & Claiborne St. Ry. Co. v. Crescent City R. R. Co., 41 La. Ann. 561, 6 So. Rep. 849, (1889); Canal & Claiborne St. Ry. Co. v. Crescent City R. R. Co., 44 La. Ann. 485, 10 So. Rep. 888, (1892); New Orleans City & L. R. R. Co. v. City of New Orleans, 44 La. Ann. 728, 50 Am. & Eng. R. Cas. 391, 11 So. Rep. 78, (1892), in which, on p. 80, it is stated that if the exclusive grant of street rights were valid, they could only be interfered with in the con- stitutional exercise of the power of eminent domain; Pacific Ry. Co. V. Wade, 91 Cal. 449, 27 Pac. Rep. 768, (1891); Mercantile T. & D. Co. V. Collins Park Ry. Co., 101 Fed. Rep. 347, (1900); Phila. Ry. Co.'s Petition, 203 Pa. St. 354, (1902). See also cases cited under sec, 110, ante. For cases supporting the opposite view, see sec. 114, ante, note and sees. 117, 118, post, notes. Synopsis of statutory provisions: California— Civil Code (1885), sec. 498. Two corporations may be per- mitted to use the same track for a distance of not more than five blocks, and where they use the same track each shall pay an equal prirtlon off thia coat ctf its (instruc- tion. A grant for more than five blocks is void. Omnibus R. R. Co. V. Baldwin, 57 Cal. 160, 168, (1881). Indiana — Laws of 1891, p. 109. The use of existing tracks may be granted by the municipal authori- ties to other companies upon such conditions as the common council may prescribe or upon such terms as may be agreed upon by the com- panies; but this provision does not apply to railroads whose lines ex- tend more than ten miles beyond the city limits. Massachusetts — Pub. Stat. (1882), p. 649, sees. 48, 49, 50. The board of aldermen may authorize a street railway company owning and oper- ating not less than two consecutive miles of track to enter upon and use the track of another company. Upon the petition of either com- pany the board may decide whether such entry and use are required by public necessity, and shall deter- mine the extent of the use of tracks and the number or routes of the cars. When a company proposes to enter upon and use the tracks of another company, and they cannot asree Upon the manner of euoh en- try and the compensation to be paid therefor, the, board of railroad commissioners shall determine the rate of compensation and fix the manner and stated periods of such use; and the award of the board shall be binding upon the respect- ive companies. Supp. Pub. Stat. (1882-1886), p. 707. No strtwt railway ncfW exlrt- 212 THE LAW OF STKEEX RAILWAYS. § ll(j. tracks." A very important and pertinent inquiry at once arises: does this include the cost of bridges, viaducts, tunnels, or tolls for using them, the cost of the right of way over private property, the amount of future taxes and assessments, the expense of sprinkling and sweeping the streets, the removal of snow from the tracks, the changes of grade to conform to public improve- ments, the original grading, the changes in gauge, size and kind of raUs, to conform to charter obligations and city regulations or rendered necessary by the changes in motive power or improve- ing or that may be hereafter incor- porated shall run its cars over or use the tracks of another street railway unless authority to do so be approved by the railroad com- missioners after due hearing of all parties in interest. Mass. Supp. Pub. Stat. 1882-1886, p. 455. Any street railway com- pany using the cable motive power, which enters upon or uses the tracks of another, may, with the ap- proval of the board of railroad com- missioners, use the motive power of the prior company, and for such use shall pay such compensation as the board of commissioners shall from time to time determine. New York— Rev. Stat. (1889), p. 815. One street surface railway company may acquire the right to the joint use of not more than 1,000 feet of the track owned by another company, whenever the court, upon the application for ap- pointment of commissioners, finds that such use is necessary for the company applying, and that the public convenience requires the same. The compensation to be paid shall be determined by the commissioners appointed by the court, or by the board of railroad commissioners, when the companies interested shall unite In a request for that board to act. The com- missioners, in determining the com- pensation to be paid, shall consider and allow for the use of tracks and for all injury and damages to the company whose track may be used. See Port Richmond R. R. v. Staten Island Ry. Co., 71 Hun 179, (1893) ; Stillwater Ry. Co. v. Boston & Maine R. R. Co., 171 N. Y. 587, (1902). Ohio — General Code, section 3778. The public authorities may per- mit one company to occupy the track or other structure of another company, but not exceeding one- eighth of the entire length of the road of the company to which such permission is given, provided that the privilege shall not be granted in violation of rights existing at the time of the passage of the act Laws of Ohio, (1890), p. 178— In certain cities the proprietor of a street railway in actual operation may appropriate any property nec- essary for the purpose of occupy- ing and using an existing street railway track owned and operated by another proprietor, subject to the limitations stated in sec. 3438. Construed in Toledo Consolidated St. Ry. Co. V. Toledo Electric St. Ry. Co., 6 Ohio C. C. 362, (1892), the principal points covered being briefly stated in the note to sec. 116, post. Pennsylvania — Laws of 1889, p. 21G. Any street railway shall have § 110. J JOIXT USE OF STEEETS, TEACIKS AN]) I'OWEK. 2]r, ments introduced to secure greater speed and for the safer and more convenient handling of cars, the original cost of making pavements and the expense of their repair and renewal, and many other items necessary for the efficient maintenance of the the right to use not exceeding five hundred feet in length of single track of the railway of another company as may be necessary to construct a circuit upon its own road at the end thereof. Before any such use occurs, compensation shall be paid to the owner of the track so appropriated. In case of disagreement, the court of common pleas of the proper county, upon the petition of the corporation seek- ing the privilege, shall appoint five persons to view and assess the damages, and make report thereof to the court, with the right to ap- peal now secured under sec. 8, Art. XVI, of the constitution, and of an act for the further regulation of appeals from assessments of dam- ages to owners of property taken for public use, passed in 1874. If an appeal be taken, it shall be com- petent to pay into court the amount of the award whereupon the right to use the track shall vest, and the sum so deposited shall await the final judgment on appeal. Ontario— Rev. Stat. (1887), p. 1688. The city council, when in its opinion the public necessity de- mands it, may grant the use of not more than two hundred yards on any one street -of the track of one company to another company. If the companies fail to agree as to the compensation, the amount to be paid for such joint use shall be awarded by a majority of three ar- bitrators, one to be named by each of the companies, and the other by the two selected. In Pennsylvania, where one com- pany was chartered by an act of assembly, April 10, 1858, with the privilege of occupying certain streets, by an act passed eighteen days later a second company was granted a franchise to occupy a portion of the tracks of the former company, upon terms to be agreed upon, or in default thereof, author- izing the amount of compensation to be fixed by two appraisers to be appointed by the district court. Second & Third St. Pass. Ry. Co. v. Green & Coates St. Pass. Ry. Co., 3 Phila. 430, (1859). In another early Pennsylvania case. In re Citizens' Pass. Ry. Co., 2 Pitts. Rep. 10, (1859), the necessity of compensa- tion was recognized, but the mode of assessment was not indicated. Philada. Ry. Co.'s Petition, 203 Pa. St. 354, (1902); Allentown Ry. Co. V. Lehigh Valley Ry. Co., 174 Pa. St. 273, 34 Atl. Rep. 565, (1896). In Missouri the compensation must be fixed under such regula- tions as the city councils prescribe. See St. Louis Ry. Co. v. Southern Ry. Co., 105 Mo. 577, 16 S. W. Rep. 960, (1891). In a case in California the court held that the receiver of a street railway company, the joint use of a part of whose road was sought, could fix the compensation, the property of the insolvent com- pany being in custodia legis. It was urged that, as the statute did not fix the manner in which the assessment should be made, the parties were entitled to a trial by jury; but this was denied very ex- plicitly as follows: "There are none of the elements of an ordinary condemnation proceeding involved 214 THE LAW OF STEEET EAILWAYS. [§ 116. roadway ? These expenditures frequently exceed the original cost of constructing the tracks. Past expenses may be estima-ted, but may be largely exceeded by future outlays, which, although uncertain in amount because they are contingent upon many facts which cannot be foreseen, and over some of which neither company has full control, should be provided for in every just scheme of compensation. On the other hand, it might be inequitable to require a new company to bear half the expenses of original in the litigation. There is no pri- vate property to be tal^en for public use, no occasion to exercise the right of eminent domain. The cable company did not acquire by the grant or its franchise any pro- prietory interest in the street. There can be no private property in a street, except the fee of the owner which Is held subject to the easement as long as the public con- tinue to use the streets as a high- way." Pacific Ry. Co. v. Wade, 91 Cal. 449, 27 Pac. Rep. 768, (1891). In Massachusetts, before the passage of the statute conferring the power on the railroad commis- sioners, the award was made by commissioners appointed by the court, which had power to revise or reject the report. Metropolitan R. R. Co. V. Broadway R. R. Co., 99 Mass. 238, (1868). In that state the award of the commissioners is not invalidated by reason of their failure to require the company whose tracks are to be entered upon to keep them in repair, that duty being imposed by statute. Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen 262, (1866). In New Jersey, where an ordi- nance granting consent contained a provision requiring the grantee to submit to such conditions as to joint use as the city council might impose, it was held that the ter- mination of the agreement between the companies did not affect the right to joint use, and that the charter could not be declared for- feited for failure to arbitrate as re- quired, but that the city council had the power to fix the amount of compensation. Jersey City & Ho- boken Horse R. R. Co. v. Jersey City & Bergen R. R. Co., 21 N. J. Eq. 550, (1870). In Ohio, "if no agreement is made between the companies as to the matter of compensation, or the same be not assessed by a jury as in other cases of the condemnation of private property to public uses, the later company may be enjoined from making a forcible appropria- tion." Kinsman St. R. R. Co. v. Broadway & Newburgh St. R. R. Co., 36 Ohio St. 239, 252, (1880). Referring to the power of the legislature to authorize a second railroad on the same street or line, Mr. Dillon says: "But whatever may be the extent of the legisla- tive power in this respect, it is clear that the legislature cannot, without compensation to the first company, authorize the second com- pany to take or use the track of the first, although with compensa- tion this might be done under the power of eminent domain. If, in Its judgment, the public good required it." Dillon Mun. Corp., (4th Ed.), sec. 727. § 117. J JOINT USE OF STREETS, TRACKS AND POWER. 215 construction for the privilege of a common, use for a short period of tim€.^« § 117. Appropriation of right to joint use. — The right of a street railway company to the use of streets for the purposes of its business is a property right, subject to condemnation for public use; and the legislature may authorize other persons, either natural or artificial, to do a similar business in the same streets, or to use the tracks already laid, upon making compensation to the first company, whenever in its judgment the public good A city cannot by ordinance arbi- trarily fix the compensation to be paid by one street railroad com- pany for the use of the tracks be- longing to another. Canal & Clai- borne R. R. Co. V. Orleans R. R. Co., 44 La. Ann. 54, 10 So. Rep. 389, (1892). Assumpsit for compensation will not lie for the wrongful use of tracks of one company by another; the action must be In form ex delicto. Chicago General Ry. Co. v. Spry Lumber Co., 60 111. App. 646, (1895). "In Massachusetts an amount Is allowed to the prior company by the railroad commissioners, with- out making any compensation for the diminution of its profits or the value of its franchise. Metropoli- tan Ry. Co. V. Highland St. Ry. Co., 118 Mass. 290, (1875). In Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen 262, (1866), appears the full report of commissioners appointed to deter- mine the compensation. The right to enter upon and travel over with "cars and vehicles" was held to include also "horses, drivers and conductors." The court, following Boston & Worcester R. R. Co. v. Western R. R. Co., 14 Gray 253, (1859), and Lexington & West Cambridge R. R. Co. v. Fitchburgh R. R. Co., 14 Gray 266, (1859), general railroad cases, aflirmed the report holding that commissioners "may prescribe a rate of compen- sation founded upon the amount of business" of one corporation over the tracks of another, and "may require accounts to be kept so as to exhibit the amount of such busi- ness, which accounts shall be open to inspection" of the owner of the tracks. In a later Massachusetts case, Cambridge R. R. Co. v. Charles River St. Ry. Co., 139 Mass. 454, (1885), the commissioners allowed interest on the cost of construc- tion, and what was deemed an equitable amount for the cost of a bridge. The new company ob- jected, but on review the court said: "There is nothing to show that the mode which they adopted of estimating the compensation was unreasonable, or that they ex- ceeded the authority and discre- tion given them by the statute." In Kentucky the court of appeals has adhered to the rule that nothing should be allowed for the franchise, but differed from the earlier Massachusetts case above cited with reference to profits. The legislature having authorized one company to occupy a portion of another's track, the two entered 216 THE LAW OF STREET RAILWAYS. [§ 117. requires. The state in the exercise of the right of eminent domain, or the corporation to whom it has delegated the right, is not bound to take the entire estate, and, in accordance with the principles governing such appropriations, should take only such an interest as is necessary to be acquired to aocomplish the public into a contract fixing the amount to be paid at $900.00 per annum, with the proviso that the terms might be altered from year to year, or at any time upon notice, by ar- bitrators, who should determine what would be "an equitable con- sideration." This agreement was made in 1866, and in 1881 notice was given that a change of terms was desirable, and the parties, fail- ing to agree or to obtain arbitra- tion, applied to the chancellor to fix the compensation. Reviewing his decision, the court of appeals held that appellant was not en- titled to compensation for the use of its franchise, but was entitled to an "equitable consideration," which must have "some reference to the injury to appellant's profits resulting from the franchise, and not merely to the value of the use of the rails and ties," and that as the parties regarded the use as worth $900.00 in 1866, it should be worth as much as $1,500.00 per annum in 1881. Louisville City Ry. Co. V. Central Pass. R. R. Co., 87 Ky. 223, (1888). In Ohio it has been decided by the circuit court that in ascertain- ing the amount of compensation to be paid by the appropriating com- pany in a proceeding under the statute, it should be limited to the value of the joint use during the unexpired term of the franchise, and that the jury should take into consideration the value of so much of the defendant's railway struct- ure and materials in place as is sought to be appropriated, includ- ing the cost of the paving con- structed by the defendant in con- formity to the city ordinances; also the damages, if any, which the structure will sustain in adapting it to the uses of the appropriating company. But it was held that no compensation should be allowed for any supposed depreciation in the value of the defendant's franchise caused by the proposed joint use and occupancy of its tracks; nor for the loss of fares which might be occasioned thereby; nor for the inconvenience and interruptions to its business; nor for the conse- quential diminution in value of other portions of the line forming part of its railway system. But the question, whether a just pro- portion of taxes and the cost of future repairs should be considered by the jury, or left to be adjusted by the companies, was not decided. Toledo Consolidated St. Ry. Co. v. Toledo Electric St. Ry. Co., 6 Ohio C. C. 362, 365, (1892), affirmed, 50 Ohio St. 603, (1893). In Grand Ave. Ry. Co. v. Peoples Ry. Co., 132 Mo. 34, (1895), the court decreed that the plaintiff should pay six per cent, per annum on one-half the value of part of defendant's cable line, in- cluding the conduit; one-half an- nual taxes; one-half paving and re- pairs, etc. The court also required a bond to secure the payment of one-half the expense of renewals. See also Grand Ave. Ry. Co. v. Citizens' Ry, Co., 148 Mo. 6G5, §118.] JOINT "USE OF STREETS, TEACKS AND POWEIi. 217 purpose in view. Accordingly statutes are held to be constitu- tional which authorize the appropriation of the joint use of a part only of the tracks already constructed and in operation.^''' § 118. Appropriation of right to- exclusive use. — The right of one street railway proprietor to appropriate the exclusive use of, or property in, the whole or a portion of the railway or tracks of another has not been settled by the courts. Tlie general state- ment by text writers, that whatever exists, whether tangible or intangible, is subject to the power of eminent domain, including the franchise of private corporations,-^* throws but little light on (1898), where the items of compen- able the new line to reach the busi- ness center of the city; third, the appropriation will not be defeated by proof that no physical impos- sibility exists to the adoption of a slightly different route; fourth, the action of the council in grant- ing the franchise should not be dis- regarded by the court in determin- ing the necessity of the appropria- tion. This case was affirmed in Toledo Consolidated St. Ry. Co. v. Toledo Electric St. Ry. Co., 6 Ohio C. C. 362, (1892), for which see sees. 110 and 116, ante, notes. The point was considered and passed upon in another case, where the court said: "It is no valid ob- jection that the whole property in the track was not taken, when so much of the use was taken as the legislature judged to be required for the public use, and the residue was left in the appellant." Coving- ton St. R. R. Co. V. Covington & Cincinnati R. R. Co., 1 Ky. Law Rep. 341, (1889). Compare Chi- cago General Ry. Co. v. Chicago City Ry. Co., 62 111. App. 503, (1895); Philada. Ry. Co.'s Petition, 203 Pa. St. 354, (1902) ; Street Rail- way Co. V. Street Railway Co., 50 Ohio St. 603, (1893). "Cooley's Const. Llm. (7th Ed.), p. 804-SOG; Lewis on Em. Dom. (3(1 sation are enumerated in detail; Grand Ave. Ry. Co. v. Lindell Ry. Co., 148 Mo. 637, (1898); Peoples Ry. Co. V. Grand Ave. Ry. Co., 149 Mo. 245, (1898); Hooh v. Los An- geles Ry. Co., 129 Cal. 180, (1900). " Sixth Ave. R. R. Co. v. Kerr, 72 N. Y. 330, (1878); Same v. Same, 45 Barb. 138, (1864), in which a stat- ute of New York of 1850, pp. 218, 224, providing that "if the two cor- porations cannot agree upon the amount of compensation to be paid * * * the same shall be ascer- tained and determined by commis- sioners to be appointed by the court," was held to be valid and sufficient authority for the appro- priation of the joint use of street railway tracks. The Lucas county (O.) Probate court, in Toledo St. Ry. Co. v. Toledo Consolidated St. R. R. Co., 26 W. L. B. 172, (1891), held such an act to be valid, the decision in the case covering the following points: first, the right is estab- lished by showing that the appro- priation is for a public purpose; second, the fact that the appropria- tion is for a public, and not merely a private purpose, may be shown by proof that such overlapping of routes is necessary in order to en- 218 THE LAW OF STREET EAILWATS. [§ 118. the subject, as we find by a review of the cases to which they refer. It is believed that an examination of general railroad cases will not disclose any adjudication in which the right of one corporation to appropriate the exclusive use of the tracks of another has been sustained. True, the courts have held that the property of one railroad company used as a wharf or dock may be appropriated by another corporation for the purpose of locating thereon an abutment of a bridge;^* that land acquired for a right of way, but not in actual use for that or any other purpose, may be appropriated by another company for the purpose of con- structing thereon a track parallel with that of the company which fii-st acquired the right of way, when such use will not materially interfere with the operation of the road first constructed;^" that one company may appropriate the right to cross the tracks of another ;^^ that a public street may be laid out across railroad tracks ;^^ and that the joint use of the track of a general traffic road for a distance of five miles cannot be acquired "except by an exercise of the right of eminent domain ;"^^ but the right to sever the parts of a line of railroad, or to appropriate any part of it by wholly excluding the proprietor from running trains over it, is a proposition to which the courts are not yet committed. The nearest approach to a decision of this question, so far as it relates Bd.), sec. 438; Mills on Em. Dom. ""New York, Housatonic & North- (2(1 Ed.), sec. 42; Wood on Bail- ern R. R. Co. v. Boston, Hartford & roads. Vol. 3, (Minor's Bd.), p. 830, Erie R. R. Co., 36 Conn. 196, 841-842; Myer on Vested Rights, p. (1869); North Carolina, Richmond 550. & Danville R. R. Co. v. Carolina " Chicago & Northwestern R. B. Cent. Ry. Co., 83 N. C. 489, (1880) ; Co. V. Chicago & Bvanston R. B. Northern R. B. Co. v. Concord & Co., 112 111. 589, (1884). So one Claremont B. R. Co., 27 N. H. 183, company may appropriate so much (1883). of the least valuable part of ^Lake Shore & Michigan South- another company's yard as may be em Ry. Co. v. Chicago & Western necessary for the supports of an R. R. Co., 97 111. 506, (1881). elevated road, when the proposed Compare Malott v. CoUlnsville terminus cannot otherwise be Ry. Co., 108 Fed. Bep. 313, 47 C. C. reached, and compensation can A. 345, (1901). easily be made, and public neces- '" Little Miami, C. & X. B. B. Co. slty demands the appropriation, v. Dayton, 23 Ohio St. 510, (1872). Pittsburgh Junction B. B. Co. v. "" Pennsylvania B. B. Co. v. Balti- Allegheny Valley B. B. Co., 146 Pa. more & Ohio B. B. Co., 60 Md. 263, St. 297, 23 Atl. Bep. 313, (1892). (1883). § 118.J JOINT USE OF STREETS, TEACKS AND POWEE. 219 to street railways, is to be found in the cases cited under the last preceding section, and in a few cases in which the courts have permitted the hostile appropriation, under express authority, of the right to lay and operate tracks in a street to the use of which a prior company had acquired the exclusive right. Thus it has been held that the right to the exclusive use of certain streets for railway purposes derived by one company, by contract, from the municipal authorities, may be appropriated in part upon making compensation therefor ascertained according to law.^* As a question of law, the power of exclusive appropriation would be seriously interfered with, if not wholly prevented, by the well settled rule that there can be no resort to the power of eminent ^' Metropolitan City Ry. Co. v. Cliicago West Division Ry. Co., 87 111. 317, (1887). In an earlier case decided by the same court, the right to appropriate the joint use of a part, leaving only the non- productive fragments to the orig- inal proprietor, was seriously ques- tioned. Central City Horse Ry. Co. V. Ft. Clark Ry. Co., 81 111. 523, 527, (1876), in which Mr. Justice Breese said : "We do not wish to be under- stood as holding, one railroad com- pany may not condemn the road of another, under a power granted by the legislature so to do. On this we express no opinion; but we do insist, "ka established railroad being a public institution, and useful only in its entirety, cannot be cut up and sectionized by a competing road, acting under an ordinance of a city council. Proceedings might be instituted, perhaps, to condemn the entire road and franchise, and thus pass it over as an entirety to the competing road; but that one competing road can bisect it here, and another there, at a different point, taking to themselves the most productive portions of the road, and leaving an unproductive fragment to the first proprietors, we do not believe, and have seen no authority giving countenance to a doctrine in its operations so un- just and at war with just prin- ciples." As to the appropriation of a right of way through streets covered by an exclusive franchise, see see. 117, ante, and cases cited. The right of one company to take the franchise of another may be implied from a grant ex necessitate rei. But the necessity must be an actual, inherent and otherwise ir- remediable one, and cannot be created by the grantees of the franchises themselves. If the sub- stance of the particular franchise can be otherwise exercised and en- joyed, a necessity cannot be Im- plied to take or destroy another franchise. Pennsylvania R. R. Co. V. Philadelphia Belt Line R. R. Co. 149 Pa. St. 218, (1891). It was held in the case of Fresno St. R. R. Co. V. Southern Pac. R. R. Co., 135 Cal. 202, 67 Pac. Rep. 773, 24 Am. & Eng. R. Cas. (N. S.) 547, (1901), that a company having a bare right of way cannot bring ejectment against another company that has used the way. 220 THE LAW OF STBEET EAILWAYS. [§ 119. domain unless the result would be a change of use;^' and from a business standpoint there could be little or no motive for an exclusive appropriation which might at once be defeated by the acquisition of a right to the joint use of the part so taken. § 119. Joint use of motive power. — Whether the state, in the plentitude of its police power, may compel one company to furnish motive power to another, when both are lawfully using the same track, is a question of much importance to the public authorities as well as to railway managers, which yet awaits authoritative adjudication, although many doubts and some con- troversies have arisen with respect to it. In Massachusetts it is provided by statute^" that one cable railway may use the motive power of another. The authority for such legislation is found in a general statute of that state which has long been in force, pro- viding that all charters are "subject to amendment, alteration or repeal at the pleasure of the general court. "^^ But a more diffi- cult problem is presented where no such reservation is made, especially if the statute authorizing the joint use of the tracks of the older company is silent as to the use, or appropriation, of its motive power. Where the cars of two companies are adapted to the same means of propulsion, two important questions may arise touching its joint use — first, can the public authorities, in the exercise of their police power, compel one company to furnish motive power to another, to avoid the necessity of additional tracks, conduits, poles or wires, and the consequent inconveni- == While the legislature may in ^« For further provisions of the the exercise of the right of emi- act see sec. 115, ante. ='Mass. Pub. Stat, (1882), p. 565, construed in Mayor v. Norwich & Worcester R. R. Co., 109 Mass. 103, nent domain take franchises and property devoted to a public use, and apply them to another public use, a statute cannot be sustained which confers on one corporation ^^^'^^'>' Commonwealth v. Eastern for profit the right to appropriate ^- ^- *^°- ^'^^ ^^^^' 254, (1869); the property of another corporation Commissioners v. Holyoke Water to exactly the same public uses for Po^er Co., 104 Mass. 446, (1870) ; the convenience and profit of the Thornton v. Marginal Freight Ry. younger corporation. Philada. St. Co., 123 Mass. 32, (1877). It has Ry. Co.'s Petition, 203 Pa. St. 354, heen decided that under this pro- (1902); Commonwealth v. Uwchlan vision the legislature has power to St. Ry. Co., 203 Pa. St. 608, (1902). authorize the joint use of street § 119. J JOIXT USE OF STEEliTS, TKACKS AXD POWEE. 221 ences or annoyances to the public, or, if the additional structures are impracticable, in order to permit the construction and opera- tion of a new overlapping route, which, without that privilege, would be impossible; and, second, if the authority to enforce such an arrangement does not exist as an incident of the police power, does the appropriation under statutory authority of the joint use of "tracks," or, as in one of the states, "any property necessary for the purpose of occupying and using * * * any existing street railway tracks" of the prior company, include the right to use its motive power? The author cannot cite any reported decision which is directly responsive to either of these questions. There seem to be substantial grounds to doubt the right of the state to enforce such an arrangement, simply as a police regulation, or to accomplish the result by any statute which does not require, as a condition precedent, adequate compensa- tion for property taken or damages sustained. Any regulation, whether by statute or ordinance, which assumes to impose upon the proprietor of a power station, already taxed to its full capacity, the duty of supplying additional power not needed for the opera- tion of its own line, is equivalent to a command that its plant shall be enlarged at its own expense for the accommodation of a dis- tinct, and it may be a rival, business enterprise. Either electricity or steam power is as distinctively property within the meaning of the law as are horses and mules, and surely no one would seriously contend that animal power could be taken or used for such a purpose under the guise of a police regulation. While some courts have held that railway tracks in the street are not property in the sense that their partial appropriation involves the exercise of the power of eminent domain,^* others, apparently with better reason, have maintained the opposite view,^* which is indirectly sanctioned by legislative enactments on the subject.^" If the use of the road can be appropriated only by proceeding in the manner provided for condemning private property for public use, for reasons more cogent the power necessary to operate the road cannot be taken or used without the consent of the proprietor. railway tracks. Metropolitan R. R. " Sec. 115, ante. Co. v. Highland St. Ry. Co., 118 =' Sees. 117, 118, ante. Mass. 290, (1875). ■"Sec. 115, ante, note. 223 THE LAW OF STREET EAILWAYS. [§ 120. unless acquired in the same manner. In numerous instances the taking or use of power would be a much greater interference with business, and cause far more serious consequences to the manage- ment of the railway, than the use of property in other forms, but constituting parts of the same equipment. Possibly cases may arise in which the public welfare would be so greatly enhanced, and the loss and inconvenience to the objecting corporation relatively so slight, that by the mere ipse dixit of a statute or ordinance some of the appliances of one grantee could be made available for the use of another, as, for instance, the use of poles for sustaining additional Avires.*^ But the power to establish police regulations must be confined in its exercise to the accomplish- ment of results in which the piiblic has a direct and paramount interest. The public can have no such interest in compelling one company to expend money for the benefit of another in matters which are of purely private concern. The fact that the compulsory investment of a large sum by the owner of one fran- chise might save twice that amount to the owner of another is not a sufiScient excuse for perverting a wise principle of law which is embodied in nearly every constitution, recognized in every just system of legislation and reiterated by every court, that private property cannot be taken, even for a public use, ' except on payment of just compensation ascertained in the manner provided by law. § 120. Appropriati&n of the joint use of power That the legislature, if not forbidden by some constitutional restriction, may authorize the appropriation of motive power, can admit of but little doubt.*^ But the grant of authority for that purpose must be clear, as there can be no implication in favor of such a right.'^ Under various statutes now in force which authorize the joint use of tracks,^* motive power cannot b© taken in invitum unless it be considered a necessary incident of such use. But authority to take any property necessary for the purpose is, " Sec. 121, post. (3d Ed.), and in Cooley's Const. ^Many classes of property which Lim. (7th Ed.), p. 752. courts have held to be subject to ""Sec. 103, ante, appropriation are mentioned in ** Sec. H5, ante. Obap. 10 of Lewis oa Bm. Dom. § 121. J JOINT USE OF STREETS, TRACKS AND POWER. 223 perhaps, sufficiently comprehensive in its scope to include power as well as the appliances by which it is conveyed. If it is to be included in the property taken, it should be specifically men- tioned in the proceedings to condemn and considered in fixing the amount of compensation. § 121. Joint use of poles and other fixtures. — What has been said elsewhere^^ of other forms of property would seem to be equally pertinent to the joint use of poles and wires. The right to use existing fixtures might prove a great convenience to the owner of a new franchise in the same street, and be a material advantage to the public by obviating the necessity of additional structures of such a character as, in some instances at least, to interfere materially mth the use of the highway, especially in obstructing the access to buildings in case of fire. But if public and private interests are not protected by attaching such condi- tions at the time of making the original grant, it is believed that the omission cannot be cured by subsequently establishing regu- lations as to joint use which ignore well defined rights inherent in every species of private property.^* The right ,to make such an appropriation must, in every instance, be conferred by the state, by some express statutory provision which requires the payment of compensation as in other cases of the condemnation of private property for public use.^^ In stating these views, the author does not forget that there is a growing tendency to ignore those constitutional safeguards which are designed for the protection of the property rights of individuals,^^ and knowledge of this tendency may induce a doubt as to how far courts will go in sustaining the validity of statutory or municipal regulations of franchises in public streets. ^ Sees. 117, 119, ante. isting poles, but seems to have ^ Thompson on Electricity, sec. 57. based its decision on the fact that ^ The subject of police regula- the company first occupying the tions is considered in Chap. VIII. street had not acquired a franchise In Brush Electric Light Co. v. for that purpose. Jones Bros. Electric Co., and Brush See also Toledo St. Ry. Co, v. Electric Light Co. v. Queen City Western Light Co., 10 Ohio C. C. Electric Co., reported in 5 Ohio C. 531, (1894). C. 340, (1891), the court refused to "Detroit City Ry. Co. v. Mills, 85 enjoin the stringing of wires on ex- Mich. 634, 637, (1891). 22-i- TIIE l.AW OF STREET UAIiWAYS. [§§]22, 123. § 122. Priority in time gives priority of right. — Priority in time gives priority of right as between grantees seeking to occupy the same streets for the same purpose. When twO' or more companies are authorized to lay tracks over a particular route, the one virhich first begins and diligently prosecutes the work of construction acquires the right of occupation on the line occupied by it to the exclusion of the others.*"* § 123. Simultaneous grants. — ^If by ordinances passed at the same time two companies are granted the privilege of occupying the same street, one being authorized to build a single track and the other a double track, both to be operated by electricity and to be laid as near together as practicable, neither has any "Omnibus R. R. Co. v. Baldwin, 57 Cal. 160, 188, (1881). A com- pany which is authorized by char- ter to build a cable road acquires no right by commencing the construc- tion of a horse or electric road ; and another company which, in good faith and in pursuance of its char- ter, afterwards begins the construc- tion of a road upon the same streets, is entitled to an injunction against it. Indianapolis Cable St. Ry. Co. V. Citizens' St. Ry. Co., 127 Ind. 369, 24 N. E. Rep. 1054, (1890). This case on a re-hearing is reported again in 26 N. E. S93, (1891), affirming the previous de- cision as follows: "Where two street railway companies take ac- tual possession of a street on the same day, and one of them has theretofore undertaken the con- struction of a line between two points which includes the part of the street in controversy, and is diligently prosecuting the construc- tion of that line, it has the better right, for the other cannot appro- priate any portion of the line un- der construction." In Pennsylvania it is held that if two street railway companies be granted by council the privilege of occupying the same street, the one which makes the first actual entry and occupation of the street will hold such privilege as against the other. Norristown Pass. Ry. Co. v. Citizens' Pass. Ry. Co., 3 Montg. 119, (1887). But it has been held that a com- pany obtains no such rights in a public road or street by the con- struction and operation of a rail- way therein, under an ordinance passed ultra vires, as will prevent the township committee from grant- ing permission to another company to construct and operate its railway in the same public road or street. "Such a grant," said the court, "was ultra vires ' * * and al- together nugatory." "It" [the first company] "has no franchise there to exist as a railroad or any right to run cars or take fares." Penna. R. R. V. Township of Hamilton, 67 N. J. L. 477, 25 Am. & Eng. R. Cas. (N. S.) 506, (1902). See also Homestead St. Ry. Co. v. Pittsburgh Ry. Co., 166 Pa. St. 162, 30 Atl. Rep. 950, (1895); Union St. Ry. Co. V. Hazelton Ry. Co., 154 Pa. St. 422, 26 Atl. Rep. 557, (1893); §§ 124, 125.] JOINT USJO OF STEHlCTS, TliACKS AND POWER. 225 Ijriority over the other, and a court, in the exercise of its equity jurisdiction, cannot, at the instance of either, compel the two companies to join in the construction of a double track for their joint use.*" § 124. Transfer of grant for joint use — It is held that the right acquired by one company to run its cars over the track of another is a mere license, and not a vested interest capable of transfer by assignment without the consent of the licensor.*^ § 125. Changes in equipment and traffic — In a case decided by the supreme coiirt of Louisiana, an important question arose which illustrates the difficxdty of regulating the joint use of tracks under prevailing methods, and is an argument in favor of the policy of confen-ing a continuing jurisdiction over such controversies upon some public tribunal empowered to give a speedy hearing and final decision on all questions growing out of new relations of the parties caused by changes in equipment and trafiic. A general ordinance of the city of 'Rew Orleans provided that, if the city should grant the joiat use of existing tracks to other companies, the proprietor should be entitled to Hamilton G. & C. Trac. Co. v. Ham- granted on the ground that the ilton & L. Ry. Co., 69 Ohio St. 402, privilege conferred was not a right (1903). coupled with an interest. Brooklyn *° Hamilton St. Ry. & Electric Co. Crosstown R. R. Co. v. Brooklyn V. Hamilton Electric Transit Co., 5 City R. R. Co., 51 Hun 600, (1889) . Ohio C. C. 319, (1890). In Louisiana it Is held that rights "In 1875, two companies entered under a contract for joint use of into a written agreement under tracks will pass from the lessor to which each was granted the privi- a company which Is afterwards or- lege of using the tracks of the ganized and chartered for the pur- other for an indefinite period of pose of purchasing the road, and time. Both companies operated which does purchase it, if the their cars under this agreement lessee continues after the purchase until 1888, when one of them exe- to use the tracks, since the contract cuted a lease for a long term of is with reference to Immovable all Its franchises and property. In- property, and, under llev. Civil eluding the right acquired under Code, Art. 2011, therefore passes the agreement of 1875. The other with the property. Canal & Clal- party, not having assented, brought borne R. R. Co. v. Orleans R. R. suit to restrain the lessee from Co., 44 La. Ann. 54, 10 So. Rep. 389, using its tracks. The relief was (1892). 15 226 THE LAW OF STREET RAILWAYS. [§ 125. receive "a fair and reasonable proportion of the value of the portion or portions of the road to be used," the compensation, unless agreed upon by the parties, to be awarded by arbitrators. Such a grant having been made by the city, the proprietor, ignoring the terms of the ordinance, brought suit to recover an amount computed on the mileage basis. It was decided, however, that in ascertaining the amount of compensation to be paid, both parties must be governed by the provisions of the ordinance.*^ At the commencement of the joint use, and for about ten years thereafter, both lines of railway were operated by animal power. Subsequently the later company, by permission of the munici- pality, substituted electric motors for horse cars, and ran fifteen additional cars over the trunk line. The original company sought to enjoin such use of its tracks, claiming that the great number of cars used by the defendant would practically exclude it from that portion of its line, and that the heavy motors would destroy the tracks, which were not suitable for heavy traffic. The court held that the right of the defendant to run cars upon the trunk line was settled by the decision in the case already cited; that the defendant could not be permitted to interfere with the right of the plaintiff to run its cars on schedule time, in accordance with its contract with the city, (a right, however, which was not jeopardized under the facts in evidence); that when the city deemed it necessary to permit the use of the streets by improved cars, driven at greater speed by new motors, no one could complain, as no franchise could be granted over a street exclusively to any one for the continued use of any particular kind of conveyance. As the petition contained no prayer that compensation be made to the plaintiff before such a use of its tracks was granted to the defendant, the judgment of the lower court, denying the injunction, was affirmed, reserving to the plaintiff the right to sue the defendant for the damages caused by the use of the tracks in question.^^ As a largely increased See Chap. XV where the general v. Crescent City R. R. Co., 41 La. subject of the sale, encumbrance Ann. 561, 6 So. Rep. 849, (1889). and transfer of the property and " Canal & Claiborne St. R. R. Co. franchises is considered. v. Crescent City R. R. Co., 10 So. "Canal & Claiborne St. R. R. Co. Rep. 888, 41 La. Ann. 561, (1892). § 125.] JOINT USE OP STEEETS, TEACKS AND POWEE. 227 traffic -with motors or cars not suited to the tracks of the railway as constructed, and of such a character as to destroy its useful- ness for any purpose, would amount to an appropriation of property, it would seem that the equities were with the plaintiff. The statement by the court, that the plaintiff would be entitled to damages in an action at law, was a concession that would bring the case within the fundamental law in force in most of the states, that private property cannot be appropriated to public use without first making or securing compensation according to law. Apparently the ordinance contemplated and provided for only one allowance by arbitrators, and was not broad enough to cover the facts disclosed in the case last cited. In such a case the taking amounts to an appropriation in the exercise of the right of eminent domain, according to the weight of the best con- sidered cases.** See also New Orleans R. R. v. Canal Ann. 1476, 17 So. Rep. 834, (1895). & Claiborne St R. R. Co., 47 La. "Ante sees. 115, 117, 118. CHAPTER VI. ELECTRIC STREET RAILWAYS. § 126. Introductory. § 131. Regulations requiring wires 127. Right to use over-head wires. to be placed under ground. 128. Telegraph and telephone 132. Danger to human life from lines. electric current. 129. What Is included in the 133. Danger to animal life. grant to use electricity. 134. Damages caused by fire. 130. Erecting poles in the road- 135. Interference with telephones. way. 136-151. (See notes to sec. 135.) § 126. Introductory — The wonderful progress which has been made in the science of electricity has revolutionized the busi- ness of local passenger transportation. The use of electric motive power has given a marked impetus to the business, multiplying and extending lines, carrying the benefits of rapid transit to out- lying districts and connecting one municipality with another by interurban lines.''' Electricity combines in such a high degree the elements of speed, safety, economy, comfort and convenience, as to make it the most common motive power in use. It has fully established its rights in the streets from a commercial standpoint, and the courts were not slow to recognize its rights and claims from a legal point of view. Many questions concerning its use have arisen and been settled. Railways of this class were long engaged in protracted litigation through which every new use of public thoroughfares must pass, and which all have experienced from the reign of Charles II, when the use of hackney coaches was forbidden because they destroyed the king's highway. The law has now largely been settled both by statute and decision. As a rule, the courts have been quick to apply well established prin- ciples to this modified use of the highway, dealing with things and disregarding names, terms and inaccurate definitions. The use of this motive power involves almost every kno'wn right in the public highway. But it is so essentially different from all other means of propulsion and was at first met by such clamors from those who believed that death lurked in every innocent wire, 1 See Chap. XVI on Interurban Railways. 228 §127.] ELECTKIC STREET RAILWAYS. 229 that its coming was heralded as the approach of a very destruc- tive commercial agent, to be tolerated ex necessitate, but to be hedged about by the most stringent regulations. § 127, Right to use overhead wires. — Poles and wires, adopted as parts of the equipment used in propelling street rail- way cars by electricity, being necessary elements of a system which facilitates the use of streets for travel, do not impose a new servitude upon the highway, nor do they constitute an un- lawful obstruction to the traveling public in its use of the streets, or any invasion of private rights, when permission has been obtained from the public authorities for the use of electric power. ^ Subject to the qualification that the rights of other travelers are not materially abridged by the mode of construction and operation, this new use of the highway is clearly within the original pur- poses for which it was dedicated.^ Whether the trolley system ^ Taggart v. Newport St. Ry. Co., 16 R. I. 668, 19 Atl. Rep. 326, (1889); Halsey v. Rapid Transit Ry. Co., 47 N. J. Eq. 380, 20 Atl. Rep. 859, (1890); Lewis on Em. Dom., (36. Ed.), sec. 161 et seq.; Louisville Bagging Mfg. Co. v. Central Pass. Ry. Co., 15 Ky. Law Rep. 417, 23 S. W. Rep. 592, (1893). See also Howe V. West End St. Ry. Co., 167 Mass. 46, 44 N. E. Rep. 386, (1896). In State v. Inhabitants of Trenton, 54 N. J. L. 92, 23 Atl. Rep. 281, (1892), the court adopted a very strict, if not unwarranted, construc- tion of the statute authorizing the use of electric power. The overhead system cannot be adopted, even with the consent of the local authorities, where the company's charter declares that It may propel Its cars "in any mode that does not involve" the use of such wires. Parrell v. Winchester Ave. R. R. Co., 61 Conn. 127, 23 Atl. Rep. 757, (1891), construing Gen. Conn. Stat, sec. 3595. = Mt. Adams & Eden Park In- clined Ry. Co. V. Winslow, 3 Ohio C. C. 425, 430, (1888); Pelton v. East Cleveland Ry. Co., 22 W. L. B. 67, (1889); Simmons v. Toledo, 5 Ohio C. C. 124, (1889) ; Lockhart v. Craig St. Ry. Co., 139 Pa. St. 419, 21 Atl. Rep. 26, (1891); Cincinnati Inclined Plane Ry. Co. v. City & Suburban Telegraph Association, 48 Ohio St. 390, 27 N. E. Rep. 890, (1891); Hudson River Telephone Co. v. Watervllet Turnpike & R. R. Co., 9 N. Y. Supp. 177, (1890); District Attorney v. West Chester, 8 Lane. L. Rev. 236, 9 Pa. Co. Ct. Rep. 542, (1891). In Lockhart v. Craig St. Ry. Co., supra. Judge Stone; on p. 423, observed: "The placing of the wires over the streets does not appear to be a tak- ing of plaintlfTs property. The streets are dedicated to the public use, and a citizen has certain spe- cial rights as an abutting owner, but I cannot see how a wire run through the air above the streets can be said to be a taking, an in- jury, or a destroying of his prop- 230 THE LAW OF STEEET EAILWAYS. [§ 127. is dangerous or safe, and whether it is wise or unwise to permit its use in large cities, are questions with which the courts have nothing to do, where they have been determined hy the legislature or the municipality; but courts may interfere by injunction at the instance of abutting ovraiers whenever the system is adopted without lawful authority.* erty. * ♦ * (p. 425). The pro- posed construction here Is no more illegal by reason of its effects upon the owners of property, so far as actual interference with their rights to use the streets is concerned, than so many lamp posts, and, if compensation could not be com- pelled for the ground taken by them, neither should it be for the posts supporting the wires in this case." See also an article in the Harvard Law Rev. of Jan. 15, 1891, by Edward Q. Keasby, entitled "Poles and Wires in the Streets for the Electric Railway," which is an able and elaborate discussion of the subject. The cases are reviewed, also, in 1 Yale Law Jour. 263, June, 1892. See also sec. 83, ante. In Potter v. Saginaw Union Ry. Co., 83 Mich. 285, 47 N. W. Rep. 217, (1890), where a property owner sought to enjoin the construction of a street railway to be operated by the overhead wire system, the court held, that no present injury was shown, the apprehended in- jury was too remote, and, under all the circumstances, plaintiff was not entitled to an Injunction against the operation of the road. See Electric Ry. Co. of Grand Rapids v. Grand Rapids, 84 Mich. 257, 47 N. W. Rep. 567, (1890), in- volving municipal regulations with reference to the kind of poles which the company may erect, and the power of the council, after per- mitting the use of wooden poles, to require the company to substitute iron posts, and holding that the ex- ercise of such power would violate the contract rights of the company. See also Barber v. Saginaw St. Ry. Co., 83 Mich. 299, 47 N. W. Rep. 219, (1890); Paterson Ry. Co. v. Grundy, 51 N. J. Eq. 213, 26 Atl. Rep. 788, 56 Am. & Bng. R. Cas. 486, (1893); Howe v. West End St. Ry. Co., 167 Mass. 46, 44 N. E. Rep. 386, (1896); Simmons v. City of Toledo, 8 Ohio C. C. 535, (1890). *Watkin v. West Philadelphia Pass. Ry. Co., 1 Pa. Dist. Rep. 463, 11 Pa. Co. Ct. Rep. 648, (1892). See also Reeves v. Phila. Trac. Co., 152 Pa. St. 153, (1893). A company formed under a statute of Pennsylvania, passed May 14, 1889, which authorizes the formation of companies for con- structing, maintaining and operat- ing street railways by any other power than steam, cannot, even with the consent of city councils, operate its road by the electric trolley system, if its articles of as- sociation expressly provide that "said railway is to be operated by horse power." When a company expressly designates the power which it intends to use, it will be held to its choice until it obtains an amendment to its charter. Haines v. Twenty-second St. & Allegheny Ave. Pass. Ry. Co., 1 Pa. Dist. Rep. 506, (1892). But the same court at the same time decided that another company organized under the same act, which was authorized by its articles of association to op- § 128.] ELECTBIC STEEET RAILWAYS. 231 § 128. Telegraph and telephone lines ^According to the great weight of authority, the necessary structures in streets, accessory to electric street railways, do not constitute a new servitude on the soil. In the consideration of this subject it may be proper to refer to the rulings made by various courts as to the legal status of poles and wires used for the transmission of light, heat and intelligence, and the grounds on which the courts have based their conclusions. In the following states telegraph and telephone poles and Avires, although located by the permission of the public authorities, are held to be an additional burden on the fee of the street owned by the adjacent proprietor: Illinois,' Maryland,* ISTew Jersey,' New York,* Ohio,® and Virginia.'^'' In Massachusetts^^ and Missouri-^^ a different ruling has been made. In nearly all of the states in which the question has arisen, the courts have placed their decisions, that the abutting owner is en- titled to compensation, on the ground that the business conducted by such companies does not facilitate the use of the street as such. erate Its road, "by horse, cable or electrical power," may, with, the consent of the city council, adopt and construct the overhead trolley system, without interference from abutting owners. Fox v. Catherine & Bainbridge St. Ry. Co., 12 Pa. Co. Ct. Rep. 180, (1892). See also Reeves v. Philada. Trac. Co., 152 Pa. St. 153, (1893). See sec. 67, ante. "Board of Trade Telephone Co. V. Barnett, 107 111. 507, (1883), on a country road. "American Telegraph & Tele- phone Co. V. Pearce, 71 Md. 535, 18 Atl. Rep. 910, (1889); Chesa- peake & P. Telephone Co. v. Ma- benzie, 74 Md. 36, 21 Atl. Rep. 690, (1891). 'State V. Central New Jersey Telephone Co., 53 N. J. L. 341, 21 Atl. Rep. 460, (1891); Broome v. New York & New Jersey Telephone Co., 42 N. J. Eg. 141, (1886). Com- pare Roake v. American Telegraph & Telephone Co., 41 N. J. Eq. 35, (1886), In which the court held that the plaintiff's right to relief was too doubtful to warrant a pre- liminary restraining order. ' Mutual Telegraph Co. v. Colwell Lead Co., 67 How. Pr. 365, (1884); Dusenbury v. Mutual Telegraph Co., 11 Abb. N. C. 440, (1882); Blash- field V. Empire State Telegraph & Telephone Co., 18 N. Y. Supp. 250, (1892). " Smith V. Central District Print- ing & Telegraph Co., 2 Ohio C. C. 259, (1886) ; Callen v. Columbus Edi- son El. Light Co., 66 Ohio St. 166, (1902). "Western Union Telegraph Co. v. "Williams, 86 Va. 696, 11 S. E. Rep. 106, (1890). "Pierce v. Drew, 136 Mass. 75, (1883), two Judges dissenting. '^ Julia Building Association v. Bell Telephcne Co., 88 Mo. 258, (1885), two judges dissenting; Gay v. Mutual Union Telephone Co., 12 Mo. App. 485, (1882). Compare Irwin V. Great Southern Telephone Co., 37 La. Ann. 63, (1885), In which 232 THE £aw of street eailways. [§ 129. In New York the same distinction has been made with reference to an electric light company supplying the city corporation and private patrons, the court holding that the furnishing of light to the city was a public use permissible without compensation, but that supplying other customers involved a use of the street for merely private purposes, and, therefore, was not a legitimate use of the street.^* It wiU be observed that several courts which have held that telephone and telegraph lines constitute an addi- tional burden upon the street have decided otherwise as to the poles and wires of street railways.^* § 129. What is included in the gnuai to use electricity A grant by the public authorities to a railway company to use elec- tricity for the propulsion of its cars, includes the right to erect poles in the sidewalks and suspend thereon the necessary wires, unless some other mode of construction is prescribed.^' And, perhaps, a grant in general terms would authorize the erection of poles in the middle of the street, since a reasonable discretion is allowed to the grantee of a franchise to adopt such modes of construction and operation as are in known use.-^' it was decided that the abutting additional burden on the streets, owner was not entitled to relief un- its poles used to support Its light'- less he sustained special damages. Ing wires alone, are an additional " Tiffany v. United States lUumi- burden, nating Co., 51 N. Y. Super. 280, " District Attorney v. West Ches- 67 How. Pr. 73, (1885). ter, 9 Pa. Co. Ct. Rep. 542, (1891). " Sec. 83, ante, note, showing the " Sees. 58, ante, and 130 post, ruling made in Maryland, New But see Green v. Trenton R. R. Co., Jersey, New York and Ohio. In 54 N. J. L. 92, 23 Atl. Rep. 281, 15 Minnesota the judges were equally N. J. L. J. 39, (1891), holding that divided as to whether or not tele- a company which under an act of graph or telephone lines con- legislature may use "electric or structed without the abutting own- chemical motors" cannot erect er's consent, entitled him to com- poles and stretch wires in the pensatlon. Willis v. Erie Tele- streets on which its line is located, graph & Telephone Co., 37 Minn, although the municipal authorities 347, 84 N. W. Rep. 837, (1887). Jiave by ordinance expressly con- In Schaaf v. Cleveland M. & 8. ferred on the company permission Ry. Co., 66 Ohio St. 215, 231, (1902), to use the trolley system. Such the court held that though the an ordinance was declared to be poles used to support the trolley Invalid. wires and the wires of its private "The act," said the court, "con- lighting system jointly are not an tains no implied grant of power to § 130. J ELECTBIC STEEET RAILWAYS. 23o § 130. Erecting poles in the roadway — As the question, whether or not a new mode of using a street for public travel results in the imposition of an additional burden on the land, must be determined by the use which the new method makes of the highway, and not by the motive power which it employs/ it would seem to follow that poles placed in the middle of the street, for the purpose of using electricity for street car propul- sion, do not impose a new servitude on the soil, since the over- head structures, being an essential part of the equipment, facili- tate the use of the street as a public highway.^^ This conclusion must be accepted as sound, unless the location of the poles in that part of the street is a greater inconvenience to adjacent pro- prietors than similar structures placed elsewhere. If the legis- lature grants permission to place overhead structures in the streets, the public can have no legal ground of complaint. The objection can come only from the abutting owner. And if poles and wires interfere with the street easements of the private owner less, if placed in the center of the roadway, than when erected at the sides of the street, he can have no just cause for complaint.-^' obstruct the ordinary use of a pub- 1090, 4 Am. & Eng. R. Cas. (N. S.) lie street by posts, wires or any 392, 33 L. R. A. 129, (1896). other apparatus designed to be u rphe relative inconvenience to used in connection with any elec- the abutting owner, of poles in the trie motor." roadway and on the sidewalk, is "Sec. 80 ante. ^^jj gt^ted in an able article pub- "Halsey y. Rapid Transit St. Ry. ^^^^^^ ^^ ^ harvard Law Rev. at p. 257, as follows: "The question whether the poles and wires inter- fere with the use of the street as such in connection with the ad- Co.. 47 N. J. Eq. 380, 20 Atl. Rep. 859, 46 Am. & Eng. R. Cas. 76, (1890). In this case the bill de- scribed the poles, which stood in the center of the street, as being "111 feet distant from each other, J^°^°* ^^""^ *« ^ question of fact about 20 feet in height, 10 inches *^° ^^ determined in each case, but by 6 in diameter at the base, set " cannot be said without proof In a guard, or frame In the form tli^t the poles and wires as ordlna- of an inverted cup, which at Us rlly arranged would have that ef- base Is 22 inches by 18 In dlam- feet The most s«rlouB opposition eter." is nmd» to those placed In the mld- See also West Jersey R. R. v. die oi the street; but however In- Camden Ry. Co., 52 N. J. Bq. SI, 29 convenient these may be to the Atl. Rep. 423, 17 N. J. L. J. 236, public. It is clear that they are less (1893); Roeblhig v. Trenton Pass, open to objection from the land- Ry. Co., 58 N. J. L. 666, 34 Atl. Rep. owner than those on the sidewalk, 234 THE LAW OF STREET RAILWAYS. [§ 131. § 131. Regulations requiring wires to be placed under ground. — Statutes have been passed in several states regulating the mode of placing or supporting the wires of telegraph, telephone, electric light and kindred companies, or conferring ample powers of regula- tion upon municipal authorities, which are based on the assumption that the state, or its duly authorized subordinant agencies, may require such companies to place existing Avires underground, or to regulate the manner in which they shall cross streets and the eleva- tion at which they must be suspended.^" The terms of the New York statutes^^ are broad enough to include the wires forming parts of electric street railway systems. By the act of 1884, it was provided, in substance, that all electric wires and cables within any city having a population of five hundred thousand, or more, should be placed under the surface of the streets, and the persons controlling them should, by a specified date, cause them to be removed from the surface; and the local authorities were authorized to remove them wherever found above ground if the owner failed to comply with the provisions of the act. By the act of 1885, a board of commissioners of electric subways was created and charged with the duty of enforcing the provisions of the previous act; and power was conferred upon the commis- sioners to devise and make ready a general plan of underground conduits, and to compel all companies operating electric wires to use the subways so prepared. They were empowered also to In which, by custom at least, the of his premises, if they are prop- land-owner has more privileges, erly placed; and this is true and on which he is allowed to whether he owns the fee of the place obstructions, such as awning- street or not. Snyder v. Ft. Madi- posts and hitching-posts, for his son St. Ry., 105 Iowa 284, 75 N. W. own convenience. The land itself Rep. 179, 41 L. R. A. 345, 11 Am. occupied by the electric poles in & Eng. R. Cas. (N. S.) 53, (1898). the middle of the street be- ™ The statutes on this subject are longs to the public for the uses collated by Mr. Thompson in his of the street, and if the pole is Treatise on Electricity at pages 74, put there for such a use, nothing et seq. See also Central Penna. belonging to the abutting owner T. & S. Co. v. Wilkesbarre Ry. Co., is actually taken." 11 Pa. Co. Ct. Rep. 417, 4 Am. Blec. An abutting owner has no suffl- Cas. 260, (1892). cient ground to complain of the "^Laws of New York, 1884, Chap, erection and maintenance of street 534; Laws of 1885, Chap. 499; Laws railway poles in the street in front of 1887, Chap. 716. § 131.J ELEOTEIC STEEET EAILWATS. 235 allow the wires to remain above groimd when compatible with the public interest. The act of 1887 contained the following provision: "Whenever, in the opinion of the board hereinbefore constituted, in any street or locality of said city a sufficient con- struction of conduits or subways underground shall be made ready under the provisions of this act, reference being had to the gen- eral direction and vicinity of the electrical conductors then in use overhead, the said board shall notify the owners or operators of the electrical conductors above ground in such street or locality to make such electrical connections in said street, or through other streets, localities or parts of the city, with such underground conduits or subways so specified as shall be determined by the said board, and to remove poles, wires or other electrical con- ductors above ground, and their supporting fixtures or other de- vices, from said street and locality within ninety days after notice to such effect shall be given. This provision is made a police regulation in and for the city of New York; and in case the several owners or operators of such wires and the owners of such poles, fixtures or devices shall not cause them to be removed from such street or locality as required by such notice, it shall be the duty of the commissioner of public works of said city to cause the same to be removed forthwith by the bureau of incum- brances upon the written order of the mayor of said city to that effect." In a suit in equity by a telegraph company which had, under a license from the city, maintained its wires above ground in the streets for twenty-five years, to enjoin the municipal author- ities of the city of New York from interfering with its wires and compelling a compliance with the act, the Federal Circuit Court for the southern district of New York held, that the acts in ques- tion were a valid exercise of the police power of the state.^^ If "" Western Union Telegraph Co. tributing light, heat, water, the v. Mayor, 38 Fed. Rep. 552, 3 L. transportation of freight and pas- R. A. 449, 6 Ry. & Corp. L. J. 105, sengers and facilitating communi- (1889). It was said by the court cation between distant points, and that the acts in question sprung out which require in their enterprises of a great evil which, in recent the occupation of not only the sur- days, has grown up and afflicted face and air above the streets, but large cities by the multiplication indefinite space underground; and of rival and competing companies, that this evil had become so great organized for the purpose of dls- that every large city was covered 236 THE LAW OV STREET EAILWAYS. [§ 132,. the doctrine annoiinced in those cases be sound, regulations of the same general character could be enforced against the proprietors of street railways, unless the operation of the underground system is impracticable. In that case the requirement would be unrea- sonable and therefore void. The New York legislation has been under consideration by the state courts in several cases and has uniformly been upheld and enforced,^^ and was before the federal supreme court with the same result.'* § 132. Danger to human life from electric current — So much has been said about "the deadly wires" that an impression has prevailed quite generally, and still obtains to some extent, that the contact of a human being with any electrical conductor is usually followed by fatal consequences, no distinction being made between the high pressure currents of the arc light circuit and the relatively low pressure of the railway current. This belief still operates to some extent to induce property owners to withhold their consent to the use of this motive power and is used as an argument against the grant of such franchises by the public author- ities. It is generally believed, however, by those most familiar with a net-work of cables and merely one of the reasonableness wires attached to poles, houses, of the regulation, and whether the buildings and elevated structures, losses and inconveniences to which bringing danger, inconvenience and the complainants may be subjected annoyance to the public. The are not such as may justly be ex- court, on p. 558, also said: "In acted of every citizen or proi)erty whatever language a statute may owner for the common good." be framed, its purpose must be de- See American Rapid Telegraph termined by its natural and reason- Co. v. Hess, 125 N. Y. 641, 26 N. able effect; and these statutes are E. Rep. 919, (1891), aflSrming 12 to be judged by the extent of the N. Y. Supp. 536, (1890) ; 58 Hun powers which they confer and 610, (1890). treated as police regulations only " People ex rel. v. Squire, 107 N. to the extent to which their opera- Y. 593, (1888); 1 N. Y. St. Rep. 633, tlons can be justified by the police (1886) ; United States Illuminating power of the state. Undoubtedly, Co. v. Hess, 19 N. Y. St. Rep. 883, in carrying them into effect, the (1889); United States Illuminating complainant will be subjected to Co. v. Grant, 27 N. Y. State Rep. great expense, the temporary In- 767, (1889); American Rapid Tele- terruption of its business, and pos- graph Co. v. Hess, 125 N. Y. 641, sibly to permanent Inconvenience (1891). and loss In conducting its business. " People ex rel. v. Squire, 145 V. But, after all, the question is S. 175, (1892). § 132.] ELECTKIC STltEET RAILWAYS. 23Y with the subject, that no danger to human life results from the use of electrical currents at a pressure not exceeding five hun- dred and fifty volts — the maximum for street railways — except, possibly, in the case of persons in a seriously diseased or other- wise abnormal condition. An electrical shock from such a cur- rent, or, possibly, even less than five hundred volts, received by such a person might be attended with serious or even fatal con- sequences, although the same current would be harmless to one in a normal condition. The loss of human life from contact with the wires of street railways is very rare ; indeed, the full force of the current has frequently been received without injury. But, as contact with a wire carrying a current of a high voltage might cause death or serious injury, the proprietor of any system of conductors, carrying a low potential current in close proximity to wires carrying a high pressure current, would be held to the exercise of due care and skill in constructing and maintaining its wires in order to prevent injuries which might naturally be appre- hended from such contact. No case has been reported in which death has been attributed to this cause, but such cases may arise, because the railway company, though not producing the death dealing current, would be solely or jointly liable for injuries caused by a failure to promptly remedy known defects or for neglect to exercise a proper degree of care to discover and avert the danger. ^^ The importance of this subject is emphasized, and ^'The dangers to life from elec- the city of Boston, in an affidavit trie wires were stated and ex- used as evidence in the case of plained at length by Mr. Thomas Wisconsin Telephone Co. v. Eau A. Edison, in his testimony taken ciaire St. Ry. and Sprague Electric and used in the case of Pelton v. Ry. & Motor Co., cited in sec. 135, East Cleveland R. R. Co., decided n^te 29, p. 259. post. Similar state- in 1890, and reported in 22 W. L. j^^nts, made by many other promi- B. 67; but unfortunately the report ^^^^ electriciajas, have been pub- does not Include the testimony. llshed In electrical journals and the dally press. which, it is believed. Is only access- ible in pamphlet form. Mr. Edison said that the maximum electric ^''^'^^ ^^^ ^""^^ ^^'"""^ °* ^^^^ railway current was five hundred ^°°^' *^® average electric current volts and would not prove fatal to used by the street railway systems persons coming In contact with the has Increased to 550 volts. Charles wires. In this statement he was O. Kruger, president of the Phila- corroborated by Mr. George W. delphia Rapid Transit Company, Mansfield, an electrical engineer of wrote the editor (January 8, 1910) : 238 THE LAW OF STREET EAILWATS. [§ 133. the risks to electric railway companies greatly enhanced, because many of them use a current of much higher voltage in their light- ing departments, while nearly all of them are exposed to the risks from contact with the wires of other companies as well as of municipal lighting plants. § 133. Danger to animal life from the electric current. — Notwithstanding the general opinion of experts, based on numer- jured by shock communicated from a trolley wire by an uninsulated span wire; Lincoln St. Ry. Co. v. "The voltage of th© current gener- ally used for the operation of street railway cars is 550 volts. This voltage, however, drops at certain places along our line, -namely at the ends where we have not frequent feeders, to consider- ably below this voltage, but the voltage as it leaves the power house is 550, so that this can be considered as the correct current voltage for the operation of trolley cars all over this country." For cases in which injury was inflicted by electric current, see Jones v. Union Ry. Co., 18 App. Div. (N. Y.) 267, (1897); Citizens' Ry. Co. v. Gifford, 19 Tex. Civ. App. 631, 47 S. W. Rep. 1041, (1898); Read v. Citizens Ry. Co., 115 Ga. 366, 41 S. B. Rep. 629, 26 Am. & Bng. R. Cas. (N. S.) 278, (1902); Citizens' St. Ry. V. Ackley, 159 Ind. 368, (1902). See also Electric Ry., Light & Power Co. v. Bell, 26 Ohio C. C. 691, (1903); City Blec. St. Ry. Co. v. Conery, 61 Ark. 381, (1895). The following cases grew out of injuries by electric shock to persons who were neither passengers nor travelers on the highway: Atlanta Consol. St. Ry. Co. v. Owlngs, 97 Ga. 663, (1896), lineman of tele- phone company killed by shock; Huber v. Lacrosse City Ry. Co., 92 Wis. 636, (1896), lineman injured by electric shock; McAdam v. Cen- tral Ry. & Elec. Co., 67 Conn. 445, (1896), employe, a lineman, in- Cox, 48 Neb. 807, 67 N. W. Rep. 740, (1896), Injury to employe, driver of a tower wagon, by burning and shock caused by contact with a fire alarm telegraph wire which had fallen upon a trolley wire; Sias v. Lowell, Lawrence & Haverhill St. Ry. Co., 179 Mass. 343, 60 N. B. Rep. 974, 7 Am. Blectl. Cas. 639, (1901), holding that an employe of a tele- phone company, shocked while vol- untarily repairing a wire of a rail- way company, had no cause of action against it; Calument Elec. St. Ry. Co. v. Grosse, 70 111. App. 381, (1897), telephone lineman in- jured by shock from trolley wire; Augusta St. Ry. Co. v. Andrews, 89 Ga. 653, 16 S. E. Rep. 203, 4 Am. Electl. Cas. 378, (1892), holding that one who leaves the street and climbs a pole supporting wires, without permission or notice to the company, and is Injured because of the contact of the wire of one com- pany with the feed wire of another, cannot recover from either; Free- man V. Brooklyn Heights R. Co., 34. App. Div. 596, 66 N. Y. Supp. 1052, (1900), holding that there could be no recovery for injury to a boy who was injured, while climbing over an arch on a bridge, by contact with a guard wire. In Parsons V. Charleston Consol. Ry., Gas & Elect. Co., 69 S. C. 305, 48 S. E. § 133.J ELECTEIC STBEET EAILWAYS. 239 ous experiments, that the electric current of street railways is harmless when applied to man, and the sworn testimony of so eminent an electrician as Mr. Thomas A. Edison,^® that a man would be killed by a smaller current than a horse, instances have occurred in which courts have found that a railway current has been fatal to domestic animals.^^ Courts must be governed by the evidence, although it runs counter to scientific theories, and will hold the proprietor of such agencies to the duty of taking all reasonable precautions to prevent injury to the property of others by their use.^^ Rep. 284, 9 Am. Electl. Cas. 146, (1905), ttie court decided that the rule as to the degree of care In the use of electricity "is the same as in the use of steam and other agencies — the care must be proportionate to the danger," and that "in determining the danger it is the duty of those in control to have in view all the surround- ings, including the contiguity of other wires, and their liabilit;y to fall and come in contact with the dangerously charged wire." In a large number of comparatively re- cent cases cited in a footnote on pages 1101 and 1102 of 9 Am. Electl. Cases, decided by the federal courts and by the courts of a large num- ber of the states, it was held that electrical companies "are not in- surers of the safety of their em- ployes and others in lawful prox- imity to their wires," but that the degree of care, as stated by various courts, is "the highest degree of care," "the utmost care," "a high degree of care," "a reasonable de- gree of care," and "a, degree of care commensurate with the danger in- volved." In Townsend v. Norfolk Ry. and Light Co., 100 Va. 22, 52 S. E. Rep. 970, (1906), it was held that where the power-house of a railway and light company damages adjoining property because of es- caping electricity, vibration of the machinery, smoke, etc., the com- pany is liable in damages for in- juries sustained. ^ In Wisconsin Telephone Co. v. Eau Claire St. Ry. Co. and Sprague Electric Railway & Motor Co., cited in sec. 135, note 29, p. 259, post. "In Pelton v. East Cleveland R. R. Co., a case decided by the cir- cuit court of Ohio, Cuyahoga county, not reported, but affirming 22 W. L. B. 67, the court referred to several experiments with horses which simply made them "frisk about," while it was said that in other cases accidental contact had resulted fatally, the court observ- ing, "but there is no evidence in the case showing but that these wires, at the time these accidents occurred, * * * may have been carrying much more than five hun- dred volts of electricity." '"In one case this liability was enforced under the following cir- cumstances: The fall of a burning building broke one of the poles of a telephone company, destroying its wires at several points. At the place of the accident the telephone wires crossed a railway track and one of the broken wires fell upon the trolley wire, which had no guard wire, and while the two wires were In that position a horse 240 Till; LAW OF STREET EAILWAYS. [§ 134. § 134. Damages caused by fire Fire from an electric street railway circuit may be caused by the excessive heating of in- flammable material, a result which would be precluded by proper construction and maintenance, except in cases of accidental contact with other conductors, such as telegraph or teltsphone wires, which, being small, may become greatly heated by cur- rents following such contact. This danger may be averted, however, by various safety devices which immediately break the connection at the points where conductors enter buildings or approach other materials which may be easily ignited. Whether the proprietor using the lighter current, but failing to provide cut-offs, could recover for damages attributable to a crossing of wires, negligently caused or permitted to continue, involves ques- tions yet to be adjudicated. It is clear that the failure of a telephone or telegraph company to use such devices would defeat a recovery by it for damages caused by a crossing of wires occur- ring through its own negligence, and probably the same result in having failed to do so, are liable." United Electric Ry. Co. v. Shelton, 89 Tenn. 423, 14 S. W. Rep. 863, (1890). In the absence of evidence show- ing that it is customary to have guard wires over trolley wires to prevent telegraph wires from fall- ing thereon, it is not negligence to fail to have such wire. Albany V. Watervliet Ry. Co., 76 Hun 136, (1894). A company is not only bound to exercise due care to prevent its own wires from falling, but also to pre- vent them from coming in contact with other wires. City Elec. St. Ry. Co. V. Conery, 61 Ark. 381, 33 S. W. Rep. 426, 3 Am. & Eng. R. Cas. (N. S.) 365, (1895). Where plaintiff's horse stepped on defendant's track and was shocked to death, the court applied the doctrine of res ipsa loquitur. Clarke v. Nassau Elec. R. R., 9 App. Div. (N. Y.) 51, (1896). See also Kankakee Elec. Ry. Co. v. Whit- came in contact with the telephone wire, received the current from the railway wire, and was thereby killed. On the trial, the court found that the condition of the tele- phone wire was such as to arrest the attention of a prudent man en- gaged in the business of either company; that both companies were guilty of negligence, and gave judgment accordingly — the court observing: "The obligation to see that its road was in good repair, and its machinery in safe operating order, is not confined to the immediate and abstract pres- ence of either, but extends to all surroundings that may depreciate the security of either. Both com- panies knew of the unprotected trolley, and the consequences of a contact of the wires of the one with those of the other. Both knew of the unsoundness likely to pro- duce a fall of the one upon those of the other. Both were bound to guard against such likelihood, and, §135.J ELECTRIC STREET RAILWAYS. 241 law Avould be reached if the contact were produced by an inde- pendent agency, such as a storm, the falling of a building or the act of a third person. But a more diificult question would arise if the injury were caused by faulty construction on the part of the railway company. In that case, would the failure of the tele- graph or telephone company to provide cut-offs be considered such an act of contributory negligence as to defeat a recovery? At least, without proof of knowledge that those devices were not used, it is believed that the raihvay company would not be liable for the results of mere ordinary negligence.^*' § 135. Interference with telephones — ^Decisions have been rendered by several courts, in cases wherein telephone companies have sought by injunction to prevent the use of the overhead single trolley system for street car propulsion, on the ground that the relatively strong current of the street railway so interferes with the current of the telephone as to destroy its ef&ciency. These suits were brought by companies in actual operation, to more, 45 111. App. 484, (1892) ; Lar- Ry. & Lt. Co., 39 So. Rep. 781, 9 son V. Central Ry. Co., 56 111. App. 263, (1894) ; Godfrey v. Streator Ry. Co., 56 111. App. 378, (1894); "Wood V. Wilmington City Ry., 5 Del. 369, 64 Atl. Rep. 246, (1905); Trenton Pass. Ry. Co. v. Cooper, 60 N. J. L. 219, 37 Atl. Rep. 730, 38 L. R. A. 637, (1897); Moore v. Camden R. R. Co., 20 N. J. L. J. 112, (1897); Farmer v. Finley St. Ry. Co., 60 Ohio St. 36,' (1899); Manning v. West End St. Ry. Co., 166 Mass. 230, (1896); Lundeen v. Livingston Blec. Light Co., 17 Mont. 32, (1895). In Marsh v. Lake Shore Elec. Ry. Co., 28 Ohio C. C. 9, (1905), it was held that the doctrine of res ipsa loquitur does not apply to elec- tricity. ^^The following cases involved the right to recover damages caused by fires attributed to defective electrical equipment: Phosnix Light & Fuel Co. V. Bennett, 8 Ariz. 314, 74 Pac. Rep. 48, 8 Am. Electl. Cas. 597, (1903); Romano v. Vicksburg 16 Am. Electl. Cas. 624, (Miss., 1906) ; Waller v. Leavenworth L. & H. Co., 9 Kan. App. 301, (1900); Hoboken Land & Impr. Co. v. United Elec. Co., 71 N. J. L. 430, 58 Atl. Rep. 1082, 9 Am. Electl. Cas. 212, (1904) ; Richmond & P. Elec. Ry. Co. v. Rubin, 102 Va. 809, 47 S. E. Rep. 834, 9 Am. Electl. Cas. 138, (1904) ; German-American Ins. Co. v. New York G. & E. L. H. & P. Co., 103 App. Div. (N. Y.) 310, 93 N. Y. Supp. 46, 9 Am. Electl. Cas. 446, (1905); Herzog v. Municipal Elec. Lt. Co., 89 App. Div. (N. Y.) 569, 85 N. Y. Supp. 712, 9 Am. Electl. Cas. 1, (1904) ; National Fire Ins. Co. v. Denver Consol. Elec. Co., 16 Colo. App. 86, 63 Pac. Rep. 949, 7 Am. Electl. Cas. 715, (1901); Imeson v. Tacoma Ry. & P. Co., 42 Wash. 74, 84 Pac. Rep. 624, 9 Am. Electl. Cas. 401, (1906); National Fire Ins. Co. v. Denver Consol. Elec. Co., 2 Colo. Decis. 612, 7 Am. Electl. Cas. 715, (1901). M2 THE LAW OB" STKEET BAILWATS. [§ 135. prevent such interference by the subsequent adoption of the new railway motive power, on the theory that it was, or would be, an unlawful interference with a vested right to the exclusive use of the earth as a return circuit for the electric current. A majority of the courts to which the question has been submitted have denied the right to relief by injunction. Such action was taken by the courts of ISTew York, Ohio, Tennessee, Wisconsin and Utah, and in the Federal Courts.^* The telephone com'pany " Ohio — Common Pleas. One of the earliest, if not the first, of the telephone-railway cases was com- menced at Akron, Ohio, in the year 1889, by the Central Union Telephone Company against the Sprague Electric Motor Company and the Akron Street Railway Company, to enjoin the defendants from operating a street railway by the so-called overhead single trol- ley system. The injunction was denied and the petition dismissed. The court found that the plaintiff could prevent the apprehended dis- turbance of its instruments by the use of a return wire, thus provid- ing a complete metallic circuit, and held that, if the defendants were liable for interfering with plain- tiff's business, the latter could re- cover in an action at law the sum necessarily expended by it in making the necessary change in its equipment. The following case il- lustrates the issues made and the general tenor of the testimony in- troduced in the cases mentioned subsequently in this note. Central Union Telephone Co. v. Sprague Electric & Motor Co. and Akron St. Ry. Co., court of common pleas, Summit county, Ohio. This was a suit commenced in the year 1889 by the plaintiff, then operating a tele- phone exchange in the city of Akron, to prevent the defendants from operating an electric street railway by the so-called overhead single trolley system. The case was heard on a motion for an injunction and on the merits. The injunction was denied and the petition was dismissed. The case does not appear in any of the published reports which have come to the knowledge of the author, who is indebted to Hon. John S. Wise, of the New York bar, for certi- fied copies of pleadings, testimony and opinions filed in this and several succeeding cases. The plaintiff claimed that the following effects were produced, which were prac- tically destructive of its business: "First — The subscribers to the plaintiff's telephone exchange are frequently debarred from securing any telephonic service by the de- rangement of the signalling instru- ments at said plaintiff's central office, and said instruments are ren- dered incapable of use for a con- siderable length of time thereafter. "Second — The call bells, which are, and necessarily are, a part of said plaintiff's telephone machinery, and which are located in the prem- ises of the subscribers to said tele- phone exchange, are frequently rung by false signals. "Third — Loud and interfering noises are produced in the tele- phones in said plaintiff's central §135.j ELECTRIC STREET RAILWAYS. 243 claimed that priority of time gave priority of right to use the earth as a return circuit as against the subsequent grantee of of the wires that there would be such strains put upon parts of the system that the city authorities would not allow sufficient poles and guys to be put up to sustain these strains. In case of a heavy wind, rain, sleet or snow storm, the difficulties in keep- ing the wires clear of ice or snow, and of so supporting them as to prevent their falling into the streets, would be much more than twice as great as where the 'ground return' is used. Furthermore, there is a gain in 'traction' (or the power of the wheels to hold to the rails) where the 'ground return' is used. This is due to the fact that any foreign substance on the rails causes an electric arc between the wheels and the rails. This creates the sparks so often seen. When the wheels pass over such sub- stances the arc immediately con- sumes this material, that is, burns it up, leaving a cleaner rail for the rear wheels to pass over. There Is also an electro-magnetic action be- tween the wheels and the rails, whereby the former are held more firmly to the latter, and in the case of climbing heavy grades, as in Akron, this effect is an important one, as it enables the cars to climb these grades with the rails covered with Ice or snow, when they could not do so with the return overhead wire. If the overhead wires get a heavy coating of sleet or ice, as I have seen them have on our road in Richmond, Va., one man with a stick, on top of a car, can keep the single wire (where the ground re- turn is used) reasonably clear. With the two wires overhead, this difficulty would be vastly magnified. The road operated by the system of Mr. Short, in Columbus, Ohio, Is office and on many connected therewith. "Fourth — The plaintiff's wires or toll lines connecting other cities and towns are greatly impaired and communication thereon, for which long and costly lines have been constructed, is often prevented." The plaintiffs prayer was, in sub- stance, that the court would require defendants to cease such interfer- ences, to correct their arrange- ments of Wires and the injurious manner of disposing of their elec- tric current, and for general relief. The affidavit of S. D. Green con- tained the following statements: "Where the overhead return wire is used, there are double the num- ber of 'live' bare conductors sus- pended in the streets than there are with a 'ground return.' This means heavier supporting wires and at more frequent intervals; double the number of guard wires; the invent- ing and designing of a new and complicated 'frog switch' in the overhead wires, at the beginning and end of every turn-oat, switch and cross-over; the invention of a new and complicated apparatus for the top of the car, carrying two contact wheels each insulated from the other, which insulation it would be well-nigh impossible to maintain in rainy or snowy weather; the in- vention of special insulating de- Vices at curves whereby the two wires can be carried around the curve and insulated from each other, and additional corner poles at all curves. In fact, apart from the disfigurement of the streets by such a perfect network of wires and so many additional poles, the engineering construction of such a system Is not practical. I mean 244 THE LAW OF STREET EAILWATS. [§ 135. a railway franchise. An injunction was denied on the ground only one mile long, and has only two cars. The road equipped by him in Denver, according to his plan suggested for us, has thrown out the equipment as worthless and impracticable. To put in the over- head system of 'returns' in Akron, it would be necessary to shut down the road, tear down the existing overhead system, and put in about half as many more poles as are now in use. If the telephone com- pany would string a bare copper wire (about 8 B. W. G.) to be used as a return metallic circuit for its lines, its disturbances at Akron would be effectually remedied, and its service improved at least one hundred per cent. At Richmond, where we have an electric road twelve miles long, and on which 40 cars are operated, the telephone company put up such overhead re- turn for its system, and thereafter its service was much better than ever before, and the trouble like this at Akron entirely obviated. Part of the trouble at Akron is due to defective line construction on the part of the telephone company, and the 'crosses' between its own lines by 'dead' wires which it doesn't remove as it should." The cost to the telephone company for an 'overhead return' for its system would be about $650 for the wire, about $50, at the outside, to put it up, and allowing $1,000 for neces- sary changes in its central office, and the telephones, it would make a total of less than $2,000. To change the present system as used by the railroad company to adapt it to an 'overhead metallic return' would cost considerably over $5,- 000, to say nothing of the loss while the road was shut down." The following description of the defendant company's equipment and system of electric propulsion, is taken from the brief of Hon. John S. Wise, filed in that case on be- half of the Sprague Electric Rail- way & Motor Company: "The Sprague Electric Railway and Motor Company has erected the electric equipment of said street railway company under contract with it. Said electric equipment consists of an electric plant, and of dynamos at a central station. The electric- ity there generated is transmitted to an uninsulated wire running over the center of the street railroad track, which wire is known as a trolley wire. At intervals of about 125 feet along the route of said wire, poles are erected similar to telegraph poles, and on opposite sides of the streets; from one to the other supporting wires are placed, connecting with the central wire by a contrivance which thor- oughly insulates them from the trolley wire; and lateral insulated wires known as feed wires also pass from the dynamo and from post to post along the route of the railroad, connecting from point to point with the trolley wire, so that, in the event of a breakage in the trolley wire the electrical current may be transmitted beyond the break and the cars beyond that point may be propelled notwith- standing the breakage. The cars are equipped with two electric motors each. From these motors thoroughly insulated wires pass through the body of the car to a device known as a trolley pole, placed on top of the car, with what is known as a trolley wheel upon the end of said pole. This wheel has a deep groove in its outer cir- cumference, and is kept in contact §135.J ELECTRIC STEEET RAILWAYS. 245 that the telephone company maintains its service subject to the use of the street by the public and subservient to the lawful trlcal current does not take a bee line, but follows the best con- ductors along the route. For ex- with the overhead trolley wire by a strong spring and universal joint in the trolley pole where it joins the car. By means of a pull cord the trolley pole and wheel may be drawn off from the wire, in which case, the electrical current being disconnected, the motive power in the car is withdrawn; but so long as the trolley wheel is kept in con- nection with the overhead wire, the electrical current on the overhead wire transmitted from the gener- ator at the central station passes into the wheel and thence through the insulated wire on the trolley pole and in the car to the motors, and after performing its propulsive function upon the motors, passes through the car wheels to the track and starts upon its return. * * * A current of electricity generated at the positive brush of an electric armature, no matter how far It may be conducted away from the gen- erator by means of electrical con- trivances, returns to the negative brush whenever it can find a return conductor, and that this complete circuit is necessary to establish the flow of electricity. * * * In order to facilitate the flow of the return current, wires are placed un- der the rails of the street railroad at different points, and they are sometimes carried to what are known as ground plates. These ground plates are metallic plates of greater or less surface, upon which, when the electric current con- ducted to them over the wires reaches them, it diffuses itself, and thence leaping in various directions through the earth, it continues its return course to the generator. * * * In traversing the earth's surface back to its source, the elec- ample, if it reaches a vein of moist earth, it will follow it, it being a better conductor than dry earth; or if, in its course, it strikes a me- tallic substance, which is a good conductor, it will go along it; or if it strikes the ground plate of some other system — the telephone for ex- ample, or a gas-pipe to which a telephone wire is affixed — it will run over it in its homeward course. So that the play of the return cur- rent may be described as erratic, zigzag and intermediate. These erratic routes, which the electric current, using the earth as a return current, follows, are known as 'shunt paths.' The gravamen of the complaint against the use of the Sprague system by the street rail- way company of Akron, in this cause, is, that the telephone com- pany having used the ground re- turn circuit, is entitled to the exclusive use of such ground cir- cuit, because the use of a return ground circuit by any other elec- trical company subjects its wires to electrical disturbances from the re- turn circuit of the other company." Judge E. P. Green, in his opinion, said: "We find as a matter of law that when the plaintiff accepted, under the ordinance of September 3d, that the street railroad com- pany, defendant, was then in pos- session of said streets of Akron, under and by virtue of the ordi- nance of July 3d, and if the ques- tion Involved was to be settled upon the ground of priority, then the railroad company was prior, and the plaintiff accepted, under the ordinance of September 3d, 246 THE LAW OF STREET EAILWATS. [§ 135. uses which may be made of these thoroughfares for public travel ; and it cannot prevent a like use by a street railway company with the conditions as they then existed. But we are of the opinion that the council had not the au- thority or power to grant any priv- ileges or rights to either the plaint- iff or defendant to the exclusion of the other, and that it did not attempt or intend by its said ordi- nance to do so; and if they at- tempted to do so the party claim- ing that it had been done, would not be entitled to an order of this court, restraining the railroad or telephone company from construct- ing and maintaining in a proper and suitable manner the necessary machinery for carrying on its busi- ness. We are not satisfied from the proof in this case that a return trolley wire as suggested would re- lieve the difficulty, and should hesi- tate before ordering it to be done, lest it would be money uselessly expended, and from the proof in this case the system used on the railroad would not operate or run the cars, except that the electric- ity passed from the wheels into the earth as the same now does. Neither are we absolutely certain that a return wire by the telephone company, forming a metallic cir- cuit, would entirely relieve the tele- phones, and yet Mr. McCluer's affi- davit (the facts therein having not been prepared for this case but for the instruction of telephone elec- tricians), is directly to the point that such wire will completely ac- complish such result. If Mr. Mc- Cluer is correct as to this, under the proof we must find that such wire will relieve the telephones. In which case the telephone company can put in said wire, and the cost and expense of placing such wire would be the measure of their dam- ages, and if under the law the de- fendants are liable therefor, the same could be recovered in a suit at law. The injunction prayed for is refused, and the petition dis- missed." In the supbeiob cotJBT OF Cincin- nati, SPECIAL TEEM. — ^A different conclusion was reached by the su- perior court of Cincinnati, Ohio, which allowed a perpetual injunc- tion against a railway company, re- straining it from operating its road. A stay of six months was allowed to enable the defendant company to provide a return circuit. This judgment was affirmed by a divided court, but subsequently reversed by the supreme court of the state. City & Suburban Telegraph As- sociation V. Cincinnati Inclined Plane Ry. Co., in the superior court of Cincinnati, 23 W. L. B. 165, 30 Cen. Law Jour. 218, (1890). Taft J., delivered the opinion February 12, 1890, allowing a per- petual injunction against the de- fendant, restraining it from operat- ing its railway by the use of the single trolley overhead system. In the course of his opinion, which was voluminous, he said: "On the whole, then, I am of oipinion that the legislature con- ferred the right upon defendant to use any other motive power than animal, whenever the board of pub- lic works should consent. Now, the board did consent on October 24, 1885, that defendant should use either cable, compressed air or electricity. It has chosen electric- ity, and has procured the neces- sary authority to erect its poles and string its wires. * * * For ten years the plaintiff had exer- cised the franchise of occupying § 135.J ELECTKIC STREET RAILWAYS. 247 exercising proper care and skill, in snch a conflict of interests the the streets along defendant's line with its poles and wires, conducting a telephone business with a single wire circuit and an earth return. This mode was universally em- ployed when it began, and is to-day in general use. It has constructed a valuable plant, many parts of which will have to be changed at great expense if it is to adopt the only system which will obviate the difficulty it now encounters from the operation of the defendant's railway. I refer to the metallic cir- cuit. "We find, then, that defendant is inflicting a legal injury upon the plaintiff in the nature of a nuisance from which has already arisen loss, and which must inevitably cause loss in the future, constantly recur- ring. It is said that the damage is not irreparable, because the plaint- iff can expend money and avoid it, and, in the same way, can arrive at its exact loss, and that, therefore, its remedy is not by injunction, but at law. Neither of these claims can be sustained. The most fre- quent exercise by a court of equity of the power of injunction, is to prevent the continual recurrence of injuries from nuisance. The ground is that the plaintiff should not be put to a multiplicity of suits and endless litigation. To say that in order to entitle a man to obtain an injunction against such an Injury, he should not be able, by the ex- penditure of even vast amounts, to avoid the Injury, is to say that no injunctions can ever issue for such a cause. * * * The order of the court will therefore be that the de- fendant be enjoined perpetually from the use of the system of elec- tric railway propulsion as now oper- If the doctrine is sound, that telephone company must yield ated by them, or any other which will occasion similar disturbances to those now caused by defendant's single trolley system. The order of injunction will not take effect until six months from this day, with leave to the defendant to apply to the court hereafter for further time, if necessary, in a bona fide effort to make the neces- sary changes." In the stjpebiob cotjet op Cincin- nati, GENERAL TEEM. — By a divided court the superior court of Cincin- nati, in general term, affirmed the decision of the superior court, in special term, which, however, was reversed by the supreme court of Ohio. Cincinnati Inclined Plane Ry. Co. V. City & Suburban Tele- graph Association, decided by the superior court of Cincinnati, at gen- eral term, December, 1890, and re- ported in 24 W. L. B., 471, 489. In the supebme cotjbt of Ohio. — The cases mentioned were reversed by the supreme court of Ohio, by a decision which is noteworthy as being the first rendered on the merits by a court of last resort in the somewhat long series of cases involving the principal point of con- troversy. In an elaborate and able opinion, the court, by reasoning which seems to be unanswerable, maintains the controlling proposi- tion that the rights of the parties in such a case do not depend upon the time at which the grants were made, but upon the fact that the franchise of a telephone company to use public streets is subordinate to the right of the public therein for the purposes of travel and transportation, which are materi- ally facilitated by the operation of electric street railways. Cincinnati M8 THE LAW OF STREET RAILWAYS. [§ 135. to the railway, because the latter subserves the dominant pur- pose for which streets are dedicated, while the former does not, Inclined Plane Ry. Co. v. City & Suburban Telegraph Association, 48 Ohio St. 390, 27 N. B. Rep. 890, (1891). The relative rights and liabilities of telephone and electric street railway companies, seeking to use the same streets, were fully considered in this case. The conclusions at which the court arrived can best be stated in its own language: "The dominant purpose for which streets in a municipality are dedicated and opened, is to facilitate public travel and transportation, and in that view, new and improved modes of conveyance by street railways are by law authorized to be con- structed, and a franchise granted to a telephone company of con- structing and operating its lines along and upon such streets, is sub- ordinate to the rights of the pub- lic in the streets for the purpose of travel and transportation. The fact that a telephone company ac- quired and entered upon the exer- cise of a franchise to erect and maintain its telephone poles and wires upon the streets of a city, prior to the operation of an elec- tric railway thereon, will not give the telephone company, in the use of the streets, a right paramount to the easement of the public to adopt and use the best and most approved mode of travel thereon; and if the operation of the street railway by electricity as a motive power tends to disturb the work- ings of the telephone system, the remedy of the telephone company will be, to readjust its methods to meet the condition created by the Introduction of electro-motive power upon the street railway." New York. — In the supreme COURT, on application FOB A TEM- PORARY INJUNCTION. — The question was before the supreme court of New York, for the county of Al- bany, on an application for a tem- porary injunction, which was allowed, without any discussion of the merits of the issues involved. Hudson River Telephone Co. v. Watervliet Turnpike & R. R. Co., 8 N. Y. Supp. 497, (1889). The relief sought was a perpet- ual injunction against defendant, restraining it from operating its street railway by the overhead single trolley system. The defend- ant company had been duly author- ized by the local authorities to sub- stitute electric motors for horse- power, the plaintiff being then en- gaged in operating a telephone ex- change, to which it had been there- tofore duly authorized. In allowing the temporary injunction. Judge Mayham said: "Under the allega- tions in the complaint it could not be held that the plaintiff is a trespasser using the streets and right of way for the telephone with- out right, and when judged by the complaint it would follow that any interference with, or destruc- tion of, the plaintiff's right, pro- ducing an irreparable Injury, could be restrained by the court by in- junction. The plaintiff being in possession, and in the enjoyment of a prior vested right, could only be divested by proof of a superior right In the defendant, and that can only be done by taking issue with the allegations of the complaint, and establishing the defense upon the trial. * ♦ * In reaching a conclusion that a temporary injunc- tion should be granted on this mo- tion, I have intentionally avoided 135.J ELECTRIC STREET EAILWAYS. 249 it is clear that no cause of action can arise. But even if this view he iintenable, priority in time can give no priority of right, any discussion or determination of the somewhat new, but very impor- tant, questions involved in this ac- tion, which should have a careful trial upon the merits and a speedy determination. An injunction order pendente lite should be granted upon the plaintiff filing a bond, or undertaking, in the sum of $10,000, to be approved by a justice of the court, and if desired by the defend- ant, the plaintiff, as a further con- sideration, shall stipulate to pro- ceed to take the proofs in this case before a stenographer to be agreed upon by the parties or appointed by the court, and bring the case to a hearing upon the proofs so taken, at any regular special term in the third judicial district, or shall take short notice for trial of said action at the January Albany circuit." Isr THE STJPEEME COtTET OF NeW YoBK, ON APPEAL. — On appeal from the order mentioned in the last sec- tion, the court continued the injunc- tion for thirty days and until the defendant should stipulate that the court might determine on the trial what had been or would be the necessary expense to the plaintiff of preventing, by metallic circuit or otherwise, the injury to and the interference with the operation of its telephones, and what damage, if any, the plaintiff had sustained or would sustain by reason of the in- terference, and that the court might in that action adjudge to the plaint- iff against the defendant a recov- ery of adequate compensation for such expenses and damages. Hudson River Telephone Co. v. Watervliet Turnpike & Ry. Co., 56 Hun 67, 9 N. Y. Supp. 177, (1890). The opinion in this case was deliv- ered by Landon, J., Feb. 24, 1890. Said the court, on p. 179: "This is an equity action in which, upon the trial, the court will have juris- diction to administer all the relief which the nature of the case and the facts demand, and to frame its judgment in such terms as shall compel obedience by both parties. Whoever seeks equity must do it, and hence the court, in its equitable mandate against the defendant, can impose equitable conditions upon the plaintiff. In one sense the injury complained of is neither ir- reparable nor necessarily contin- uous, since it can be removed by incurring the necessary expenses. But if the plaintiff shall incur all the expense without compulsion or legal duress, it might be regarded as voluntarily incurring it, and hence could not recover it from the defendant, and would suffer, to that extent, irreparable loss. The pres- ent methods of the plaintiff are all it requires if the defendant should not interpose its destructive agency. It may be that the defendants ought to bear the expense of a change of plan. That expense would be less, and the advantages to the defendant greater, than if it were compelled to adopt the double trolley system. It may be that plaintiff's obligation to main- tain a metallic circuit after it shall have been established will be the proper measure of its share of the burden. It may also be that prior- ity in time gives the better equity. The defendant may lawfully enter upon the street, but the condition may be implied that it shall also indemnify others already rightfully there against the additional ex- 250 THE LAW OF STEEBT RAILWAYS. [§135. unless the maxim that each must u.se his own so as not to injure pense which its entry subjects them to, as in the case of the gas, water and sewer pipes already referred to. But we cannot well decide who will ultimately be liable for this ex- pense, or whether equity requires its apportionment. This matter was less fully considered upon the argument than the electrical and other important features of this somewhat novel case. We cannot place the burden of this expense in the first instance upon the defend- ant, since the plaintiff ought not to yield control of its lines to the defendant. The necessities of the case compel us to require the plaint- iff to assume it in order to protect itself against the defendant. Or- dered that the Injunction be con- tinued, as follows for thirty days and until the defendant shall stipu- late: 1. That the court may deter- mine on the trial what has been or what will be the necessary expense to the plaintiff of preventing, by metallic circuit or otherwise, the injury to, and the interference with, the operation of their telephone, complained of in the complaint. 2. And that the court may further determine on the trial what dam- age, if any, plaintiff has sustained to its business or will sustain by reason of the matters set forth in the complaint before the same can be with reasonable care prevented as aforesaid. 3. And that in this action the court may adjudge to the plaintiff against the defendant such recovery for said expense and for said damages as may be just and equitable on the proof established at the trial." The remaining con- ditions related to the undertaking. In the cotjkt of. appeals op New York. — ^An appeal was taken to the court of appeals from the order mentioned, but was dismissed, on the sole ground that the granting of an injunction pendente lite rested in the sound discre- tion of the court of original jur- isdiction and that its discretion was reviewable only by the general term. In passing upon the ques- tion, however, the court observed- "We have examined with great care the questions involved in this case, and we are compelled to say we entertain very grave doubts whether, upon the facts stated in the complaint and afiSdavits, any cause of action exists in favor of the plaintiff, and whether the plain- tiff has any remedy for the injury of which it complains, except through a readjustment of its methods to meet the new condition created by the use of electricity by the defendant under the system it has adopted. But we think we ought not to dispose of the case upon its merits in this proceeding. The questions are new and difficult, and courts elsewhere have differed upon them." Watervliet Turnpike & Ry. Co. V. Hudson River Telephone Co., 121 N. Y. 397, 24 N. E. Rep. 832, (1890). Before the bahjeoad commission- EBs of New Yokk. — The Commercial Telephone Company of the city of Troy, New York, appeared by coun- sel before the board of railroad commissioners, to oppose an appli- cation by the Troy and Lansing- burgh Railroad Company for an order granting to it permission to use the single trolley system. The telephone company insisted that the railroad company should agree to construct a double trolley sys- tem, instead of using the earth to complete its circuit. After full ar- gument by counsel representing §135.J ELECTRIC STREET RAILWAYS. 251 another, be enlarged and expanded by the novel interpretation the position that the railroad com- pany should not use the earth to both of the companies, the board declined to interfere, holding that the conflicting rights of the parties should be determined in an action for damages or by some other ju- dicial proceeding, and expressing a serious doubt as to the exclusive rights claimed by the telephone company. In the matter of the application of the Troy & Lansingburgh R. R. Co., for permission to substitute electricity for animal power, before the railroad commissioners of the state of New York, William E. Rog- ers, Isaac V. Baker, Jr., and Michael Ricard, October 28, 1889. The board announced its decision in the fol- lowing language: "The telephone company request that the board de- cline to approve of the application of the railroad company, unless the railroad company agrees to con- struct a double overhead trolley wire rather than a single wire. The claim of the telephone company, in other words, is that it had con- structed its poles and strung its wires lawfully, and was using the earth to complete its circuit; that the railroad company then con- structed its poles and strung its wires near to those of the tele- phone company, and also used the earth to complete its circuit; that in the passage through the earth the currents of the greater inten- sity of the railroad company inter- fered with those of the telephone company; that this interference is a trespass and should not be per- mitted. While the board recog- nizes that there is a hardship suf- fered here by the telephone com- panies, it is in great doubt whether it is of a character that the board would be justified in redressing, if it necessitated the board taking complete its circuit. It appears to the board that the decision of this question should rather be brought before the courts in a suit for dam- ages or in some other proceeding, and the respective rights of the two companies to the use of the earth as a conductor be there determined. To determine it in the way peti- tioned by the telephone company would be equivalent to saying that any electrical company using a minimum current should have the exclusive rights to the earth as a conductor. This the board is not prepared to say. The question, so far as the board is aware, is un- precedented, and it does not feel that it is its duty to decide it. As before stated, it deems that the proper course would be a suit to be brought by the telephone company against the railroad company." In the btjpbemb cotjbt of New YOEK, JUDGMENT ON EEFEKBE's RE- POET. — The supreme court of New York, at special term, confirmed the report of the referee appointed by its order. The referee found that the cost of a complete metallic circuit, if made by the telephone company, would be far greater than the expense of changing from the single to the double trolley system. He also found that, although the plaintiff, by adopting and using what is called and known as the McCluer device or system, upon a portion of its lines, could obviate to a considerable extent the effect upon its current, such effects would, nevertheless, to a considerable ex- tent, continue after the adoption and use of that device. But, not- withstanding those conclusions of fact, he found and reported that the 252 THE LAW OF STEEJET BAIL WAYS. [§ 135. that the right to erect poles and wires in streets carries with it, defendant was entitled to judgment against the plaintiff dismissing its complaint. The action of the court on the referee's report is referred to in Hudson River Telephone Co. v. Watervliet Turnpike & R. R. Co., 15 N. Y. Supp. 752, (1891). His con- clusions upon the principal points involved in the case are stated in the following synopsis, which is condensed from the report just cited, a full abstract being given, because his findings differ materi- ally from the conclusions of fact fouii,d by the courts. The referee found, among other things, in substance, as follows: 1. That the plaintiff was incorporated in 1883, and had from that time continuously been engaged in carry- ing on the telephone business in the city of Albany, which business con- sisted in furnishing means of com- munication between people at a distance from each other by the transmission of sound or the human voice; that in the transaction of such business the use of a cuirent of electricity of an extremely minute character was required, and that the instruments necessarily used in utilizing such current were delicate and sensitive in a high de- gree. 2. That the plaintiff had ex- pended many thousands of dollars, and then had many thousands of dollars invested, in its plant and equipments in the city of Albany. 3. That the defendant in 1889 ob- tained permission from the city of Albany to operate its cars by means of electric motors with the single trolley system; and that prior to the commencement of the action it had fitted its road for operation by elec- tricity, and had prepared its cars for running by that means of propul- sion, but before it had erected any posts or strung any wires It was notified by the plaintiff that the operation of its road in that manner would seriously interefere with, if not destroy, the telephone business and service of the plaintiff. 4. That the stations of the plaintiff and its subscribers were located upon pri- vate property, and that the telephone service would not be disturbed by the "conduction" or "leakage" of the railway current, except when the current flowed upon the private property of the plaintiff or its sub- scribers. 5. That the operation of the defendant's road In the manner proposed would seriously interfere with the laintiff's business; that such detriment would be continu- ous, and that, therefore, the plaint- iff would have no adequate remedy in law. 6. That by the adoption and use of what is called commonly the "Double Trolley System," or what is commonly called the "Stor- age Battery System," the defendant could obviate such Injurious results. 7. That the adoption and use of either of said systems by the defend- ant would necessitate the expendi- ture of large sums of money for construction, maintenance and oper- ation in excess of those required therefor by the single trolley sys- tem. 8. That the operation of the defendant's road by the double trolley system would be much more liable to accidents and interruption than by the single trolley system. 9. That the plaintiff, by providing a return wire and thereby furnishing a complete metallic path for its cur- rent, could obviate all the appre- hended injuries complained of by It. 10. That it would cost the plaintiff much more to provide a return wire for its use than the cost which would 135.J ELECTEIC STEEET EAILWAYS. 253 by necessary implication, the right to a monopoly never before be incurred by the defendant by changing from a single trolley to a double trolley system. 11. That, by adopting what is called and known as the McCluer device or system, the plaintiff could obviate to a con- siderable extent the apprehended injurious interference with its serv- ice, but that such effects would to a certain damaging extent continue after the adoption and use of such device or system, and that the cost thereof would amount to several thousand dollars. 12. That the cur- rent used by the plaintiff was so slight that it could in no wise affect the defendant. 13. That the single trolley system was the only mode of electric railway propulsion that could in any degree affect the tele- phone service. 14. That the stor- age battery system and double trol- ley system were then in practical operation in various parts of this country and Europe, over lines with heavier grades than those of the defendant's road, and that there were no curves, turn-outs or cross- overs upon the defendant's road to prevent the successful use of either of those systems. 15. That the use of either would prevent any interference with either the plant, equipment or service of the plaint- tiff. 16. That the plaintiff had be- tween fourteen and fifteen hundred subscribers and twenty-seven out- of-town lines, constituting the Al- bany Exchange; and that the Cen- tral Office or Exchange of the plaintiff, being situated immediately upon the line of the defendant's road would be communicated to all the lines of the plaintiff. 17. That the plaintiff had been using elec- tricity, and the earth as a return circuit therefor, for a number of years before the defendant at- tempted to make any use of elec- tricity as a propelling force for its cars. 18. That the first electric railway was built in 1879, and that the roads operated by that motive power had been in use commer- cially in this country for only five or six years. 19. That the only way in which the plaintiff could prevent an injurious interference with its current was by making a metallic circuit on all of its lines. 20. That the plaintiff's switch-board could not be used for a metallic current exchange, and that a new switch- board would cost about $20,000. 21. That to change from a ground cur- rent exchange to a metallic current exchange would cost the plaintiff the sum of $120,000, and that the highest estimate of expense in changing the defendant's system from the single to the double trol- ley was the sum of $39,520. 22. As matter of law the referee found that the plaintiff had the right to erect its poles and string its wires through the streets of the city of Albany, and conduct the telephone business by means thereof; but that, upon the pleadings and proof, the plaintiff had failed to establish a cause of action against the de- fendant, and that the defendant was entitled to judgment against the plaintiff, dismissing the complaint upon its merits. In the supeeme cotjbt of New YOEK, AT GBITEKAL TERM. On appeal from a judgment entered upon the report of the referee dismissing the complaint, the supreme court of New York, at general term, in Sep- tember, 1891, held that the grant by thte legislature and municipal authorities to a railway company to use electricity as a motive power, without designating the par- 254 THE LAW OF STREET RAILWAYS. [§135. recognized by the law, and certainly not within the contempla- ticular system by which the power was to be supplied, did not author- ize the latter by the overhead single trolley system to interfere with the telephone current. Hudson River Telephone Co. v. Watervliet Turnpike & R. R. Co., 61 Hun 140, 15 N. Y. Supp. 752, (1891). This case was argued before Learned, P. J., and Landon and Mayhajn, J. J. The syllabus, so far as it relates to the main point, is as follows: "A grant by the legisla- ture and municipal authorities to a street railway company, to use elec- tricity as a motive power, though it does not designate the particular system by which the power is to be supplied, does not give the company a right to use a system by the use of which the electricity will pass from the street and interfere with the current of a telephone company which has previously lawfully erected its poles and wires on pri- vate property, where there are other systems which might be used by the railway company at a greater expense, but at less additional ex- pense than would be required for the telephone company to change its system. When a street railway company is about to use electricity as a motive power, to be supplied by a system which will allow the current to escape to the wires of a telephone company erected on private property, and to contin- uously interfere with and injure the business of the telephone company, an injunction will lie, there being no adequate remedy at law." On pp. 762-3, Learned, P. J., in a con- curring opinion, criticises the court of appeals, as follows: "The ques- tions argued In this court and nec- essarily In the court of appeals were largely as to the right of the plaintiff to enjoy its alleged fran- chise and business without the in- terference which was alleged to arise from the franchise and busi- ness of the defendant in the manner stated. Unless the plaintiff had such rights on the facts alleged in the complaint, then, of course, it could not maintain the action, and the court of appeals would have reversed the order which affirmed the injunction pendente lite. It is true that the opinion of the court speaks of 'grave doubts' whether, on the facts stated in the com- plaint, any cause of action existed. This language Is probably used in compliment to the two judges who disagreed with the majority opin- ion. Undoubtedly, too, the defend- ant had 'grave doubts' on this point, and for a settlement of these doubts appealed to that court. But there could be no longer any doubt on the subject when that court decided to dis- miss the appeal, for Its decisions make the law in this state; and therefore it cannot say that it dis- missed the appeal because it did not know whether the complaint stated a cause of action or not. It was the right of the defendant to have a reversal as a matter of law if no cause of action was set forth in the complaint; and when that court dismissed that appeal, It decided that the complaint stated a good cause of action. Something is said In the opinion as to the trial being then in prog- ress, and as to the facts which thus might be judicially ascertained; and, of course if the trial should not have established the facts al- leged In the complaint, then that decision of the court of appeals § 135.J ELECTEIC STEEET EAILWAYS. 255 tion of the parties at the time the grant was made. If, as now would be inapplicable. But we are not to suppose that that decision was merely a temporary expedient, or that the court would cause parties the labor and expense of trying a cause in which the com- plaint alleged no good cause of action, when the question was di- rectly before the court whether or not the complaint did contain such good cause of action. It did not need a trial of the issues to deter- mine whether on the facts stated in the complaint a cause of action existed. If on these facts a cause of action did not exist, the court would have reversed the order. If it did, the court would have dismissed the appeal, as was in fact done. To suppose that the court did not know whether a cause of action existed or not on the facts stated, would be disre- spectful. We cannot believe that when this case shall finally come before that court It will hold any differently from its decision above cited, viz.: that the complaint states a good cause of action. The referee's report sustains the alle- gations of the complaint, and estab- lishes facts more favorable to the plaintiff than those which were proved on the hearing upon the motion for an injunction, as Is shown in the preceding opinion by my brother Mayham. His conclu- sion, therefore, necessarily follows from the decision of the court of appeals above referred to." On appeal the court of appeals decided that the telephone com- pany could exercise its franchise in the public street only subject to the condition that it would not in- commode the use of the streets by the public and that it could not question the right of a street rail- way to use the street as a return circuit for Its electric current so long as It Is lawful and is utilized with proper care and skill. Hud- son River Telephone Company v. Watervliet Turnpike & Ry. Co., 135 N. Y. 393, (1892). In the Chattanooga, Tennessee, CHANCEET COTIBT. A C a S 6 W a S brought in the chancery court of Chattanooga, Tennessee, by the Bast Tennessee Telephone Com- pany, which was engaged in oper- ating a telephone exchange, against the Chattanooga Electric Street Railway Company, which was about to construct and put in operation a single trolley electric railway in the same city. A preliminary in- junction was allowed, but, after a full hearing on affidavits, it was dissolved, on condition that the de- fendant should enter into a bond to the plaintiff in the sum of ten thousand dollars to pay any dam- ages which might thereafter be assessed against it for injuries to the plaintiff's business caused by interfering with Its electric cur- rent. East Tennessee Telephone Co. v. Chattanooga Electric St. Ry. Co., in the chancery court at Chattanooga, Tenn., but not reported. This was a suit commenced May 9, 1889, the opinion being filed on the 21st of June, 1889. The plaintiff company was engaged in operating a tele- phone exchange in Chattanooga, and the defendant company was about to construct and put in oper- ation a single trolley electric rail- way in the same city. The com- plaint was in substance that the current of electricity necessary to be used by the defendant in the operation of its railway would ex- ceed in power that used by the 25G THE LAW OF STEEET RAILWAYS. [§13f gx,'nerally held, the local authorities cannot, even by express stipu- complainant, in the proportion of one thousand to one, and would, by necessary and unavoidable induc- tion from its overhead or trolley wire and leakage from the iron rails of the track and ground cir- cuit, reach and overwhelm the cur- rent in complainant's wires, both overhead on its poles, and ground wires along all of the streets jointly occupied by the companies as well as where the same con- nected elsewhere, so as to render complainant's current of electricity powerless, thereby throwing the plaintiff's whole telephone system in the city of Chattanooga Into confusion, and working an irrepa- rable injury beyond the power or ability of the defendant to remedy or prevent. The plaintiff prayed the court to restrain the defendant from putting up its proposed over- head wire, and for general relief. Additional facts appear in the opinion filed by Hon. S. A. Key, chancellor and presiding judge, from which are taken the following excerpts: "Two questions arise in this case: 1. In point of fact, will the injury apprehended be Inflicted? 2. Is the injury one to which the law compels the complainants to submit, or is it one against which the law will give protection? Tele- phone companies were recognized and provided for by the laws of Tennessee long before street rail- ways were permitted to use elec- tricity to operate their cars. Tele- phone companies, under the acts of the Tennessee legislature, have the power of eminent domain. Being public, their property cannot be taken for other public companies, unless such companies are organ- ized under laws which provide that it may be done. We are aware of no provision of law in Tennessee permitting this to be done by a street railway company. It does not appear that any statute em- powers a street railway company to condemn the property of other pub- lic companies, nor does the law con- fer upon such companies the power to condemn the property of private persons within the city limits. The telephone company, having been in possession under its charter and the city ordinance years before the charter of the respondent company was obtained and the right of way granted to it by the city, acquired a vested right to use the strip of earth along the line of its poles through the streets. The ordinance granting the right of way and ease- ment of user constituted a contract which the city itself could not im- pair, unless that right was ex- pressly reserved, and especially is this so since the telephone com- pany has accepted the grant and is operating under it. * * * If the complainant's system of operation is defective it will not affect the respondent's liability. The elec- trical current used in telephony is too feeble and delicate to do in- jury to others. The inferiority of complainant's works is immaterial in this controversy. If it were a question between the telephone company and its patrons, or be- tween it and some one who claimed to have been injured, the condition of the complainant's works would be material. But the question here is whether the telephone company has been injured or will be injured by respondent company. The ques- tion here is, not as to the complete- ness of the telephone company's plant, but as to the railway's rela- tive rights and duties. * * * In- §135.J ELECTHIC STEEET RAILWAYS. 25Y lation, deprive themselves or their successors of the right to grant asmuch as I am not fully satisfied that Injury will result to the com- plainant by the operation of re- spondent's system, and especially as It assumed for respondent that it has adopted for the operation of its cars by electricity an additional precaution which has never been adopted heretofore or elsewhere, I am content to dissolve the injunc- tion for the present, upon the con- dition that respondent company enter into bond, with good personal security, in the sum of |10,000, pay- able to complainant, conditioned to pay such compensation or damages as may be adjudged or decreed in lavor of complainant in this cause by reason of the operation by re- spondent of its cars by electricity." In the Knoxville, Teknessee, CHANCEBT cotJKT. — The question of the right to an injunction arose again in Tennessee, in a case in which a temporary injunction was allowed and afterwards dissolved by the chancery court of Knoxville. The ordinance, under which the telephone company claimed exclu- sive rights, granted to it the priv- ilege of erecting poles on the pub- lic streets and alleys of that city. Commenting upon the claims of the company under that ordinance the chancellor said: "In the light of the present claims of this tele- phone company and the benefits of this ordinance and the monopoly of the ground upon which the city stands for all the purposes of an earth circuit, I can only say that if such was its object when it se- cured the apparently humble priv- ilega of 'erecting poles,' it was seeking to perpetrate a fraud upon the city of Knoxville whose mayor and aldermen could not have sup- posed that they were selling the 17 birthright of their constituents for even less than a mess of pottage. * ■• •* And I am further of the opinion, that, under its charter powers, and under the corporation ordinance, the Knoxville Street Railway Company has the right to propel its cars by the single trol- ley electric system, or by any other the city has authorized or may au- thorize." East Tennessee Telephone Co. v. Knoxville St. Ry. Co., in the chan- cery court of Knoxville, Tenn. Not oflacially reported. The peti- tion was filed March 24, 1890, a temporary injunction being allowed at the same time, and the decision dissolving the restraining order an- nounced April 21, 1890, by Hon. Henry R. Gibson, Chancellor. This case involved the main question under consideration. The ordi- nance under which the telephone company claimed the right to oc- cupy the streets contained the fol- lowing provisions: "Be it or- dained, etc., that the privilege of erecting poles on the public streets and alleys of Knoxville be granted to the East Tennessee Exchange, and this privilege of erecting posts shall be confined to the telephone exchange purposes exclusively. That the posts erected shall in no way interfere with the public travel along the streets, sidewalks, and public alleys of the city. That nice posts, straight and smooth, be required, and that the same be in line with the outside edge of the curbing." Judge Gilson, discussing this provision of the ordinance, said: "I am unable to so construe the scant 'privilege of erecting poles' so as to make it 'grant the right' to the exclusive use of every inch 258 THE LAW OF STREET EAILWATS. [§ 135. a similar francliise in the same streets, the ohvious effect of which of ground within the corporate limits, for all the purposes of an earth circuit for electricity. Such a grant could never have been in the minds of the mayor and alder- men, and I am unable to find these exclusive rights and monopolistic powers condensed in five such harmless words as 'the privilege of erecting poles.' * * * And thus it is, this once humble telephone company that was given the bare privilege 'of erecting poles' on the edge of the curbing, now comes for- ward, and by virtue of those two talismanic words, claims the right to make the electric light compan- ies, the electric railroad companies, and all other electric companies for all time to come, keep their wires from communicating with any part of the ground on which the city stands, or else pay it for the privilege of so doing. In a word, it claims perpetual monop- oly of the earth on which the city Is built, for all the uses of an elec- trical circuit; and also claims a superior right to the air itself for electrical purposes. * * * It makes no difference what grand discover- ies and inventions in the use of electricity may be made; coal, wood, gas, steam and animal power may all be superseded by electrical devices. Machines may be in- vented to heat and light all of our homes, do all of our cooking, propel all of our vehicles and machinery, and all, or a large part, of this electricity may be drawn from the earth, or it may be drawn from the air, and yet Knoxvllle and all her people are to be denied all of these wonderful benefits for all the ages to come, if they, either through the earth, or through the air, in any way cripple or Injure the feeble current of the telephone company — unless the telephone company gives or sells its consent." In the fedeeal ciecuit coubt fob the mtddije distbict of tennes- SEE. — An injunction was denied by the federal circuit court for the middle district of Tennessee in a case in which the facts differ in some material respects from those involved in the cases already cited. The question arose upon a bill in equity to enjoin the use of electricity by five street railways of Nashville operated under the Sprague and Thompson-Houston systems, each using the single trol- ley overhead wire. The plaintiff first filed its bill against one of the defendants. Before that case was heard, the parties entered into an arrangement by which the tele- phone company agreed to dismiss its bill, to elevate its wires and to use all means to prevent them from coming in contact with the trolley wires of the railway, and the defendant agreed to construct at its own expense a return metal- lic circuit for the use of the tele- phone company whenever it was as- certained that the service of the latter was being injured by the current of the railway, and to use all necessary precautions to pre- vent a contact of the wires. In a second suit, by bill filed against all of the railway companies, the telephone company charged that the metallic circuit had not given the relief anticipated, and that it was not estopped by the agreement above mentioned. The court de- cided that the damages complained of were not the direct consequences of the construction of the defend- ants' roads, but were merely in- cidental damages resulting from § 135.] ELBCTEIC STREET EAILWATS. 259 will be to strip an existing franchise of every element of value, their operation, and not recover- able. Cumberland Telephone & Tele- graph Co. V. United Electric Ry. Co., 42 Fed. Rep. 273, 284, (1890). The court states Its conclusions as follows: "1. The defendants are making legal use of the fran- chises conferred upon them by the state in a manner contemplated by the statute, and that such act can- not be considered as a nuisance in itself. 2. In the exercise of such franchises no negligence has been shown and no wanton or unneces- sary disregard of the rights of the complainant. 3. The damages oc- casioned to the complainant are not the direct consequences of the construction of the defendant's roads, but are Incidental damages resulting from their operation, and are not recoverable. The cases in- volving this principle are almost in- numerable; and in our examination of them, we are satisfied the great weight of authority bears in the direction we have indicated. As the result, the motion for an in- junction must be denied." IlT THE ClBCIIIT COUET OF WlBCON- siN. — In 1890 a similar question arose in the circuit court of Wis- consin. A statute of that state contains a provision that "It shall be the duty of each electric light and power company, and of each and every person engaged in the transmission of electrical energy within this state, to provide by suitable insulation return wires or other means against the injury to persons or property by leakage, es- cape or induction of any or every current of electricity." The court held that the telephone company was not entitled to an injunction, on the ground that, but for the un- lawful act of the plaintiff in using the earth as a return circuit con- trary to the provisions of the stat- ute, no serious inconveniences would result from the proximity of the defendant's wires. Wisconsin Telephone Co. v. Eau Claire St. Ry. and The Sprague Elec- tric Ry. & Motor Co., in the circuit court of Eau Claire county, Wiscon- sin. Not reported. This suit was commenced December 12, 1889, and the decision denying the temporary injunction was rendered January 29, 1890. Except as otherwise in- dicated in the statement of the case, the parties occupied the same relations to each other as the par- ties in the Ohio, Tennessee and Utah cases; and, as the style of the case shows, the system of electric propulsion was the same. As the grounds of relief relied upon in the various cases differ in some important particulars, the material parts of the complaint as stated In the petition are here given. "The said plaintiff alleges that great and irreparable damage has been done to its business and property and to the public using its telephone by the defendant in this: 1. That the subscribers to the plaintiff's tele- phone exchange in Eau Claire are practically debarred from securing proper telephone service by the de- rangement of the signaling instru- ments at said plaintiff's central office or exchange, and said instru- ments are rendered incapable of use for a considerable time. 2. That the call bells which are nec- essarily a part of plaintiff's tele- phone machinery, and which are arranged in the premises of the subscribers to said telephone ex- change, are frequently rung by false gignals carried by said defend- 260 THE LAW OF STREET EAILWAYS. [§135. with Biuch better reason may it be asserted that they cannot ant's electrical currents as afore- said. 3. Loud and interfering noises are produced in the tele- phones in said plaintiff's exchange, and on the wires and telephones of subscribers connected therewith. 4. That plaintiff's lines in Eau Claire and connecting other towns with Eau Claire are greatly im- paired and communications thereon often prevented. 5. That the health and comfort of its employees and subscribers are In constant hazard and that said employees and subscribers are liable at any mo- ment to be seriously injured by the dangerous current of electricity em- ployed by said defendant. 6. That the property, wires, tele- phones and machinery used by said plaintiff in the management of its said business have already been in- jured as aforesaid and are in con- stant hazard of being burned up and destroyed by currents from the wires of said defendant's street railway." The plaintiff prayed for an order restraining the defendant from operating its railway by elec- tricity until the defendants should by insulation, return wires or other means provide against injury to persons or property, (and particu- larly to the subscribers and em- ployees of the plaintiff and its property), from leakage, escape or induction of any and every current of electricity used by the defend- ants, and for general belief. The following extracts are taken from the opinion of Bundy, J.: "This Is a motion for a tempor- ary injunction to restrain the de- fendants from operating their elec- tric railway in the streets of Eau Claire, for the reason, it is claimed, that the escape of electricity from the wires of defendant's road inter- feres with the successful operation of the telephone of the plaintiff. * * * fije system adopted by the defendant is one in common use. The evidence clearly shows that what is known as the single trolley system, by which the elec- tricity returns by way of the wheels of the car and the track, is now used by nine-tenths of the roads in operation In the United States; that the double trolley roads, which adopt the plan of the return wire, have in some instances been built; but the evidence of all the ex- perts Is to the effect that they are practical failures; and the evidence fails to show that any scheme has been invented which is practicable and can be made a success except the system adopted by the defend- ant in this case, that is, the single trolley system. Hence it follows that they have been guilty of no negligence, and as it is further true (hat the system adopted is stbstan- tially the only one upon which roads can be operated successfully, it follows that the prayer of the complaint asking for an injunction to restrain the running of the road as it is, is, in effect, asking for the entire c.essation of the use of the defendant's road as an electric road. I am not prepared to da that. * * * On the other hand, if I deny the motion, the telephone company can continue the use of their lines. This is amply proved by the undisputed evidence of the experts In this case. It appears be- yond question that a way has been contrived by which, by means of a return wire, forming a metallic cir- cuit, they can operate their plant successfully without injury from the electricity complained of. With them it is not a question of total §i:35.J ICLF.CTHIC STEEET EAIT.WAYS. 261 renounce the right to grant a suspension of business, but simply a question of expense of alteration, and so far as the evidence appears, I should conclude that the expense would not be a very considerable amount. Hence the Injury com- plained of is not Irreparable or con- tinuous. When the improvement is made the trouble complained of will cease, and the plaintiff, if it should be found that this expense, so incurred, was made necessary by the wrongful act of this defendant, could sue the defendant at law and recover whatever expense was incurred in making the change. I therefore think that if the plaintiff has suffered any injury by the acts of the defendant in building or operating their road, It has a complete remedy at law. The plaintiff claims that it is entitled to this injunction under Chap. 375, of the laws of Wisconsin for the year J 889, Sections 1 and 2 of this chap- ter read as follows: 'Section 1. It shall be the duty of each and every electric light and power company, and of each and every person en- gaged in the transmission of elec- trical energy within this State to provide by suitable insulation re- turn wires, or other means against Injury to persons or property by leakage, escape or induction of any or every current of electricity. Sec- tion 2. Neglect of any of the above provisions shall entitle the persons or corporations injured thereby to a preliminary injunction preventing further use of such current until said Section 1 has been complied with.' It appears to me that the language of this statute is broad enough to cover the case of the plaintiff as well as that of the de- fendant. The object of that statute is to prevent leakage of electric different franchise in the samp wires permeating the earth and causing damage to others, and by its terms as clearly forbids the plaintiff from allowing the elec- tricity to escape into the ground as it does the defendant, and hence, if T am right in this, it follows that even if the defendant was In the wrong in not providing for the safe return of the electricity, that the plaintiff is just as clearly in like position, differing only in the amount of electricity that is allowed to escape. And the evi- dence in this case shows that, but for the unlawful act of the plaintiff in using the ground for a return circuit, contrary to the provisions of the statute, no serious Inconven- ience would result from the prox- imity of the defendant's wires, and the plaintiff, being in the wrong, and suffering damage, in part, at least, by reason of its own wrong- ful act, is not entitled to an in- junction." In the disteict couet or Utah. — On grounds similar to those stated in the Ohio and Tennessee cases, the Rocky Mountain Bell Tele- phone Company sought to enjoin the Salt Lake City Railway Com- pany from operating a single track railway with the overhead single trolley system. On final hearing the court found, that while the double trolley system, which the plaintiff urged that the defendant should adopt, might be practicable when employed on a straight line with a double track, its use on a single track with t'>rn - outs, switches and curves would prob- ably be attended with great diffi- culties and would not be a mechan- ical or commercial success. The court also found, from the evidence presented in that case, that, assum- 262 THE LAW OF STREET EAILWATS. [§ 135. city. To the railway grant may be attached conditions which ing that the use of a metallic re- turn circuit would remedy the evil complained of, its use would be equally practicable by either party to the action, and, therefore, denied the complainant's prayer for an in- junction. Rocky Mountain Bell Telephone Co. V. Salt Lake City Ry. Co., In the district court of the third judicial district of Utah Territory, (Salt Lake City). The petition in this case was filed June 29, 1889, the opinion on the application for a temporary restraining order was filed July 23, 1889, and the opinion by Zane, J., on final hearing was filed in December of that year. It is believed that this case has not yet appeared In any regularly pub- lished report. The system of elec- tric propulsion adopted by the de- fendants was similar to that de- scribed in the preceding cases. The gravamen of the complaint was as follows: "That the said defendant has lately begun and is now engaged in erecting poles on First, South and South Temple streets, on the same line on which the plaintiff has heretofore erected its telephone poles, and threatens and intends to, and will If not restrained by this court, string its said electric wire conductors or cables thereon, immediately underneath and in close proximity to the plaintiff's said telephone wires. That the said defendant also threatens to, and will un- less restrained, erect its poles and run Its conductors on each of the other of the aforesaid streets, and for the purpose, use and with the Intention of propelling thereby and by means of the aforesaid powerful currents of electricity along the said conductors. Its said street cars. * • * That by reason of the con- struction and erection of the said electro-motor conductors in the manner aforesaid and by reason of their close proximity and being on parallel lines with the plaintiff's said telephone wires, and the trans- mission thereon of the said power- ful currents of electricity, the plain- tiff's said telephone lines will by in- duction, leakage, liability to actual contact and otherwise, be greatly Interfered with and obstructed, and at times their operation will be ab- solutely prevented, thereby ruining and destroying plaintiff's said busi- ness and property to Its great and irreparable damage." The plaintiff prayed for a temporary injunction restraining the defendant from put- ting up Its wires, and from inter- fering "by Induction, contact, leak- age, or in any other manner what- soever" with the operations of the plaintiff's wires, Instruments, or business; and that on final hearing the Injunction be made perpetual and for general relief. In passing upon the motion for a temporary Injunction, July 23, 1889, the court said: "I am disposed to regard these parties as occupying the streets mentioned In the com- plaint rightfully, with all the rights that can be conferred upon them by the city council. They are there, however, with certain duties to per- form. It Is the duty of each one to use reasonable precaution to pro- tect its own Interest, and to pre- vent injury to the other, or any other person or corporation. * • * Whether it is the duty of the street railway company to Insulate its wires, or the duty of the telephone company to insulate its wires, I hardly deem it necessary to decide at this time, because there la so § 135.] ELECTRIC STEEET EAILWATS. 263 will protect the telephone franchise.^" A failure to do so may he unjust, but this argument must he addressed to the legislature, not to the courts.^^ The courts have, however, uniformly held either party to the action, the court will not enjoin the use of the ground circuit hy the defendant much uncertainty as to whether the injurious effects from the want of insulation will follow the use of these wires; there being so much uncertainty about it, I am not dis- posed now to decide that question." At the December term, 1889, the court denied the application for a temporary order in the following language: "In view of all the evi- dence in this case, I am disposed to hold that the injunction ought not to issue. If at some future time it is found that the effects of the operation of this street railroad, and the use of electricity as it is proposed to he used on its wires, produces different effects from what appears probable now from the evi- dence, then an application can be made and the matter can be heard and decided in the light of better evidence than the court now has. The motion is denied." In passing upon the merits of the case upon final hearing, the court said: "While this system (the double trolley system) may be practicable when employed on a straight road with a double track, the probabili- ties are that its use on a single track, with turn-outs, switches and curves, would be attended with great difficulty, and that it would not be a mechanical or commercial success. * * * The plaintiff's right to the use of the electric current by means of wires upon poles set in the streets was prior to the time of the right of the defendant to use the same agency by means of wires and poles In the same streets. • ♦ * Assuming that the use of the metallic circuit would remedy the evil complained of, and that its use is equally practicable by while the plaintiff continues to use it. It appears from the preponder- ance of the evidence that the use of the electric current by the plaintiff is practicable, while its adoption by the defendant would be an experi- ment; its practicability does not ap- pear to be established. The prayer of the complainant for an injunc- tion is denied." See also Bell Tele- phone Co. V. Montreal St. Ry. Co., Q. R. 6 Q. B. 223, (1897); Hinman V. Winnipeg Elec. St. Ry. Co., 16 Manitoba Rep. 16, (1906). ^° Conditions, similar in principle, have been enforced. See sec. 30, ante. On such an issue in the city of Halle, Germany, the court decided In favor of the railway company, stating that the streets were in- tended for general traffic, and that their course could not be altered, but that the postal authorities could easily make any necessary deviation in the line of the tele- graph and telephone wires so as to place them beyond the influence of the railway lines, which used the rails and the earth for the return circuit. 7 St. Ry, Gaz. 6, (July 6, 1892). "^This question has been prac- tically settled out of court by co- operation between the street rail- ways and telephone companies. Charles O. Kruger, president of the Philadelphia Rapid Transit Com- pany writes, (January 8, 1910) : "The street railway companies and telephone companies have been working in unison, and It is not an infrequent occurrence to have a re- quest from a telephone company to permit the bonding of their cables 264 THE LAW OF STREET RAILWAYS. [§ 135. that where a street railway company has so constructed or used its electric system as to interfere with the properly constructed system of a telephone company, by crossing its wires, or by ac- cumulating electricity in large quantities and allowing it to escape upon the premises occupied by the telephone company to its damage, so as to amount to an abuse of the railway com- pany's franchise, it is a trespass and may be enjoined.^^ to the return cables In our man- break up his business or impair holes, thus removing electrolytic conditions." It may be noted that cables are now generally used for the return circuit. We have not been able to find any case deciding this question since the New York case cited In the next note. " Hudson River Telephone Co. v. Watervliet Turnpike & Ry. Co. 135 N. Y. 409, (1892), in which Maynard, J., said: "The defendant insists that it has an equal right with plaintiff to make use of this property, or law of nature, in the conduct of its business, just as all are entitled to the common use of the air and the light of the heavens, which, in a certain sense, is undoubtedly true. But the de- fendant does something more. It does not leave the natural forces of matter free to act unaffected by any interference on its part. It generates and accumulates electric- ity In large and turbulent quanti- ties, and then allows it to escape upon the premises occupied by the plaintiff to its damage. * * * We are not prepared to hold that a person, even in the prosecution of a lawful trade or business, upon his own land, can gather there by artificial means a natural element like electricity, and discharge it In such a volume that owing to the conductive properties of the earth. It will be converged upon the grounds of his neighbor with such force and to such an extent as to the value of his property, and not be held responsible for the re- sulting injury. The possibilities of the manifold industrial and com- mercial uses to which electricity may eventually be adopted and which are even now foreshadowed by the achievements of science, are so great as to lead us to hesitate before declaring an exemption from liability In such a case." In Peoria Water Works Co. v. Peoria Ry. Co., 181 Fed. Rep. 990, (1910), a permanent injunction was issued against the defendant re- straining it from so using its elec- tric current as to further damage the mains and other property of the plaintiff by electrolysis. In Dayton V. City Ry. Co., 20 Ohio C. C. 736, 9 Am. Electl. Cas. 267, (1904), the plaintiff secured an injunction against the defendant "from so operating its lines as to allow escap- ing electricity to destroy water pipes," on the ground that the fail- ure of the company to furnish a metallic return circuit permitted its current to escape into the earth and destroy the plaintiff's pipes. For a discussion of this subject by emi- nent electricians, see 47 Elect. Rev. 737; 3 Trans, of Intern. Elect. Cong. 666-692; 15 Jour, of New Eng. Water Works Ass'n 245-271; Amer. Elect. Ry. Prac. 387; Standard Handbook for Elec. Eng. 898; Electric Rail- roading 278 ; Electric Ry. Handbook 258-360. §135.j ELECTRIC STKEET EAILWAYS. 265 In Birmingham Tract. Co. v. Southern Bell Telephone & Tele- graph Co., 119 Ala. 144, 24 So. Rep. 731, (1898), an electric street rail- way company was erecting poles and wires along the streets of Bir- mingham already occupied by tele- phone wires, and the railway wires, which had been constructed, touched and crossed the wires of the telephone company so as to cross circuit and ground its wires and thus prevent their use by sub- boribers of the telephone company. The latter filed a bill for an in- junction complaining of this injury and alleging that the railway com- pany was engaged in further erect- ing its poles and wires so that com- plainant would be seriously injured in the exercise of Its franchise. The injunction was sought not to restrain the railway company •rem constructing its overhead sys- tem, but to restrain it from so con- structing it as to interfere with and injure the telephone company's service. Judge Haralson, basing his opin- ion on this distinction, says (pp. 151-152) : "The conduct of the defendant, as shown, is an unwarranted usur- pation, amounting to a trespass on complainant's rights, which is re- current, continuous and tending to a multiplicity of suits. This a court of equity will interfere by in- junction to prevent. * * * The damages to complainant in this case as shown, are not incidental, growing out of a careful and law- ful use of the streets and avenues by defendant, and such as are dam- num absque injuria; but they arise from the misconduct of defendant in the nature of an abuse of Its franchise." Held, no error in refusing to dis- solve the injunction. In Rutland Elec. Lt. Co. v. Marble City Elec. Light Co., 65 Vt. 377, 26 Atl. Rep. 635, (1893), it was held that "An electric light company which has put up poles and wires In streets under contract with a municipal corporation and conveys so low a current of electricity for lights that the wires can be safely handled even when charged may have an injunction against another company which, under a subsequent contract, erects poles and wires carrying a dangerous current so near the former as to interfere with their safe use." See also Wis- consin Tel. Co. V. Janesville St. Ry. Co., 87 Wis. 72, 57 N. W. Rep. 970, (1894); National Teleph. Co. v. Baker, L. R. Ch. Div. 186, (1894), an interesting English case. It has been held that al- though an electric street railway, constructed and operated upon the streets by means of an overhead trolley wire supported by poles, is not an additional burden, but an "ordinary use" of the streets, such company Is liable to a telephone company for damages inflicted, where the railway company enters on a street one side of which is already occupied by the poles and wires of the telephone company, and, by erecting its poles on both sidjes of the street, when one side would have suificed, renders neces- sary the change and removal of the poles and wires of the telephone company. Cumberland T^elephone & Telegraph Co. v. United Elec. Ry. Co., 93 Tenn. 492, 29 S. W. Rep. 104, 27 L. R. A. 236, 1 Am. & Eng. R. Cas. (N. S.) 295, (1893). See also North Amherst Home Tel. Co. V. Jackson, 4 Ohio C. C. (N. S.) 386, (1904), and Marsh v. Lake Shore Electric St. Ry. Co., 28 Ohio C. C. 9, (1905), relating to joint liability for damages. CHAPTER VII. ELEVATED RAILROADS. 5 152. Introductory. 153. New York elevated system — constitutional and statutory provisions. 154. Appointment of commission- ers by mayor or county su- pervisors. 155. Duties of mayor's commis- sioners. 156. Consent of property owners and local authorities. 157. Appointment of supreme court commissioners. 158. Hearing before supreme court commissioners. 159. Confirmation of report of su- preme court commission- ers. 160. Plans for construction. 161. Location of routes and build- ings. 162. Character of the franchise obtained. 163. Power of eminent domain. 164. Scope of the rapid transit act. 165. What property may be taken. 166. Pleading and practice in con- demnation proceedings. 167. Parties to proceedings. 168. One proceeding covering pri- vate and public rights. 169. Hearing of petition — what must be shown. 170. Inability to purchase. 171. Proceedings commenced after occupation. 172. Appropriating property for illegal purposes, 173. Proceedings and practice be- fore the commissioners of appraisal. §174. 175. 176. 177. 178. 179. 180. 181. 182. 183 184, 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. Suitableness of property for particular purpose. Commissioners acting on their own knowledge. Benefits considered in pro- ceedings to appropriate. Measure of compensation and Stay of proceedings of com- missioners. Second award. Confirmation of the award. Appeal from order confirm- ing report. Appeal from second ap- praisal. Elevated cable roads. Forfeiture and abandonment. Elevated railroads not a legit- imate use of the street. Damages to non-abutting property. Ownership of the fee In the street. Additional tracks an addi- tional burden. Remedies of the abutter con- sidered generally. Elements and measure of damages. Remedy by injunction. Parties to actions for dam- ages and injunction. Provisions of the judgment in actions to enjoin. When total damages recover- able at law. Damages as affected by ben- efits. Change in character of neigh- borhood. 266 § 152.J ELEVATED EAILEOADS. 267 ( 197. Exemplary and excessive damagei. 198. Assignment of claim for dam- ages. 199. Interest on damages. 200. Other questions arising In actions for past and fee damages. 201. Rights of purchasers. 202. Remainder-men. 203. Action by lessor. 204. Action by lessee. 205. Right of trial by jury. 206. Limitation of action — acqui- escence and estoppel. 207. Previous offers for property. 208. Opinion evidence. 209. Other questions of evidence. 210. Taxation of the road and fix- tures. § 211. Injuries to persons on street by falling objects. 212. Unguarded excavations In the street. 213. Care required In construction and management of road. 214. Stairways, stations and ap- proaches to trains. 215. Regulation as to gates on car platform. 216. Entering or leaving train while in motion — riding on platform — standing in car. 217. Removal of passengers from stations or cars — false Im- prisonment. 218. Injury to persons on or near track. 219. Lessor not liable for lessee's negligence. § 152. Introductory. — ]^ew York, Pennsylvania, Massachu- setts, Illinois and Missouri have in operation extensive systems of elevated railroads,^ to relieve conjested districts in the busi- ness portions of their large cities. In several of the larger cities in America, as vs^ell as in Europe, the service has heen improved by combining the different systems of transportation, railroad in the city of Chicago. Its right to carry out the purpose of its incorporation was challenged in a proceeding brought by it to appro- priate street easements under the power of eminent domain. But Its authority to exercise this power was held to be properly derived from a general statute of the state of Illinois permitting the organiza- tion of corporations "for the pur- pose of constructing and operating any railroad" in that state, the court declaring that its right to in- corporate under an act in regard to "elevated ways or conveyors," was extremely doubtful. Lieberman v. Chicago & S. S. R. T. R. R. Co., 141 111. 140, 30 N. B. Rep. 644, (1892). ^ For statutes authorizing the con- struction of elevated railways see Pennsylvania, Act June 7, 1901; Il- linois, Act 1872 providing for the Incorporation of railroad compan- ies; Massachusetts, Stat. 1894 c. 548 sec. 8; New Jersey, N. J. Supp. 369, sec. 31; New York, see sec. 153 post. The Chicago West Side Rapid Transit Railroad Company was in- corporated on the 4th day of Jan- uary, 1888, and, as stated in its articles of Incorporation, was or- ganized for the purpose of cbn- Btructlng a "railroad" from a point in Chicago to the Indiana state line. The "company was in fact in- corporated for the purpose of con- Jtructlng' and operating an elevated 2r;S THE LAW OF STEBET RAILWAYS. [§ 15;]. fhe cars rimning underground in the principal business districts, then passing on elevated tracks to the suburbs, where they descend to the surface of the streets and are operated in the man- ner usual with surface roads. In jSTew York and in Philadelphia there are pystems combining subsurface with elevat In re New York Elevated R. R. Co., 41 Hun 502, (1886) ; In re New Co., supra. York Central & Hudson River R. ** Pamp. L, (1886), p. 126. § 184.J ELEVATED EAILEOADS. 295 the jury impaneled to appraise the value of the easement and assess the damages, that the value of the easement was nominal or nearly so, but that any hindrance caused by the railroad to those uses of the street which the adjacent owner had a right to make over and above the public, ought to be considered in deter- mining the value.^^ § 184. Forfeiture and abandonment The general doc- trine of the forfeiture of chartered rights, prevailing in New York, and frequently applied in elevated railroad cases in which the rights of companies have been challenged for failure to con- struct their roads within the time prescribed, was announced and very ably discussed in a case decided by the court of a,ppeals, following several earlier cases which are in full accord with the general rule which prevails in a large majority of the states. The charter of the corporation contained a provision requiring its road to be commenced and completed within times specified, and provided that in default thereof it should "forfeit the rights acquired by it" under the act of incorporation. The court decided that this provision did not ex proprio vigore put an end to its corporate life in case of default, but simply exposed it to pro- ceedings on behalf of the state to establish and enforce the for- feiture; and that until the state thus intervened a private indi- vidual could not set up the forfeiture or in any way challenge its corporate existence.^® Under section 7 of the Eapid Transit "^ Sullivan v. North. Hudson property; and the point was made County E. R. Co., 51 N. J. L. 518, by the court that the damages (1889). The commissioners ap- should be relatively small, because, praised the value of the easement unlike the elevated steam roads and right of passage at $25.00 and of New York, the operation of the assessed the damages at $20.00. On railway would not be attended by the trial in the circuit court a ver- the emission of smoke, fire, cinders diet was rendered "for a somewhat and dust, and would be compara- larger aggregate of value and dam- tively noiseless, ages." In this case it appears that ™ In re Brooklyn Elevated R. R. the fee of the street was in the ad- Co., 125 N. Y. 434, (1891), affirming jacent proprietor. Although the 11 N. Y. Supp. 161, (1890), and dis- point is not covered by the sylla- tinguishing In re Brooklyn, Winfield bus, the general doctrine is stated & Newtown Ry. Co., 72 N. Y. 245, in the opinion that in such a case (1878), and In re Brooklyn, Winfleld the jury may set oft special, but & Newtown Ry. Co., 75 N. Y. 335, not general, benefits to abutting (1878), in which the same court 296 THE LAW OF STREET RAILWAYS. [§185, Act, requiring the commissioners to provide for the forfeiture to the supervisors of the county of all rights and franchises acquired by the corporation, in case of failure to complete within the time and upon the conditions prescribed, the commissioners may insert in the articles of association a proviso suspending the running of the time limited for the completion of the work during the period unavoidably consiimed by the pendency of legal proceedings or by the delay or interference of the public authorities.^^ A corpora- tion authorized to build a main line and branches cannot abandon the construction of the former and still retain the right to con- struct the latter; and when it becomes apparent that the com- pany does not expect to construct its main line, it may be restrained from constructing the branch lines, by the owners of property abutting on the latter who sue for themselves and all others similarly situated. ^^ § 185. Elevated railroads not a legitimate use of the street. — As stated else«'here,^^ a street surface railway does not constitute an additional burden upon the soil or an unlawful impairment of street easements appurtenant to abutting property for which had decided that no judical pro- (1832) ; In re New York Elevated ceeding was necessary to declare a R. R. Co., 70 N. Y. 327, (1877). See forfeiture where the charter of the also In re Kings County Elevated company provided that in case of R. R. Co., 105 N. Y. 97, (1887); non-performance "its corporate ex- Day v. Ogdensburgh & Lake Cham- istence and powers shall cease;" plain R. R. Co., 107 N. Y. 119, and Brooklyn Steam Transit Co. v. (1887) ; Moore v. Brooklyn City R. City of Brooklyn, 78 N. Y. 524, r. Co., 108 N. Y. 98, (1888) ; Farns- (1879), In which the same ruling ^j^orth v. Minnesota & Pacific R. R. was made with reference to a co., 92 U. S. 49, (1875); and Van charter providing that unless the ^y^j, ^^ Knevals, 106 U. S. 360, company constructed at least one (^ggg). See also sees. 46, 47. 48, mile of its road within three years, . then "this act and all the powers, ' , ^ , „ rights and franchises herein and " In re Kings County Elevated R, hereby granted shall he deemed ^- C°- ^^^ N. Y. 97, (1887). See forfeited and terminated," and ^'^° ^^'=^- *^' ^^- ^"^^ ^""^ "^^^^ citing with approval the following ^^^^^ °'*®'^- cases: State ex rel. Attorney- "^ Goelet v. Metropolitan Transit General v. Fagan, 22 La. Ann. 545, Co., 48 Hun 520, (1888). As to join- (1870); Bank of Niagara v. John- der of parties plaintiff in similar son, 8 Wend. 645, (1832); People actions, see sec. 101, ante. V. Manhattan Co., 9 Wend. 351, '"Ante, sec. 79. § 185.] ELEVATED RAILROADS. 297 the owners are entitled to ivdress, nnless they sustain special damages. As a general proposition, applicable to ordinary street surface railways, this question has been definitely settled by the courts of every state in which it has arisen, although its soundness is still questioned occasionally by eminent text writers. EiTt when the courts came to consider the rights of the owners of lots abtitting on the route of an elevated steam railroad con- stracted pursuant to legislative authority, a very different, if not a more difficult, question was presented. By the leading ease in N'ew York^" it was settled that an abutting owner had easements in the street of light, air and access, appurtenant to his lot, which were unlawfully impaired or destroyed by the construction of an elevated railroad without the owner's consent or the payment of adequate compensation. The court in determining the question placed its decision upon the existence in the original grant from the city of an express covenant that the streets should forever thereafter continue to be public streets. The Story case left open the important question as to whether or not there was any difference in the interest acquired by abutting owners in the streets of l^ew York, between that created by a grant from the municipality and that acquired through a series of mesne con- veyances from the original owner whose property was taken by the city under the act of 1813*^ to be held in trust and kept open as a public street. This question arose in a subsequent case, in which it was decided that, notwithstanding the difference in the situation of the lot owners with respect to the streets, their ease- ments as to light, air and access are similar ; that abutters claiming title to their premises by grant from the municipal authorities, which covenanted that a street should be laid out in front of the property and continue forever thereafter as a public street, acquired an interest in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air; and that the location of a railroad in the street in front of their property, the use of which is intended to be permanent, is in itself an interference "Story V. New York Elevated R, R. R. Co., 3 Abb. N. C. 467, (1877). R. Co., 90 N. Y. 122, (1882). Com- »i 2 R. L. 49, sec. 177. pare Spader v. New York Elevated 298 THE LAW OF STEEET EAILWATS. [§185. with their rights and constitutes a taking and appropriation of their easements entitling them to compensation for the injury so sustained.®^ In a later case the same court decided that in a suit for damages arising from such interference, it cannot be left to the jury to say whether the structure is or is not one which the legislature or municipality may authorize against an ahutting owner, (upon the theory that it is a question of fact depending upon the extent of the interference in a particular case with the public right of passage, or with the enjoyment of their premises by the abutting owners), but is a question of law which must be decided by the court.®^ It may be considered as settled in that state that the owners of lots abutting on a city street, ■""Lahr v. Metropolitan Elevated Ry. Co.. 104 N. Y. 268, (1887). " "Williams v. Brooklyn Elevated R. R. Co., 126 N. y. 96, 26 N. E. Rep. 1048, (1891). But it had been held by the superior court of New York that the question, whether or not the running of locomotives and trains and the physical effects re- sulting therefrom, such as Injuries caused by noise, smoke, ashes and dust, constitute a use of the street inconsistent with the ordinary and legitimate use thereof, should be submitted to the jury to be deter- mined in each case upon all the cir- cumstances surrounding it. Taylor v. Metropolitan Elevated Ry. Co., 50 N. y. Super. 311, (1884) ; Drucker V. Manhattan Ry. Co., 51 N. Y. Super. 429, (1885) ; Ireland v. Metro- politan Elevated R. R. Co., 52 N. Y. Super. 450, (1885). To the same effect. Fifth National Bank v. New York Elevated R. R. Co., 24 Fed. Rep. 114, (1885), affirmed in 135 U. S. 432, (1890). The following succinct statement of the rights of abutting owners is taken from the opinion of Freed- man, J., in the case of Greene v. New York Central & Hudson River R, R, Co., 65 How, Pr. 154, 165, (1883): "The law of the public street of a city is motion; and any use of a street, though a new one, which does not materi- ally abridge or obstruct the right of passage and repassage, of ingress and egress, and to light and air, of the abutting owner, gives no cause of action; therefore every unnecessary material abridgment or obstruction, though of a tempo- rary character, and every continu- ous material abridgment or obstruc- tion, though made in the pursuit of a ' lawful business, and to some extent called for by the circum- stances arising in the course of sucli pursuit, by which the right of an abutting owner to pass and repass, to have free access to and egress from his premises, and to enjoy the light and air from the street, is unreasonably affected, gives the injured party, in case of special damage therefrom, a right of action against the offending party for the recovery of the damages actually sustained; and in order to deter- mine any such question, each case must be disposed of on its own facts and circumstances." See also Adler v. Metropolitan Ry, Co., 138 N. Y. 173, (1893). § 185.] ELEVATED EAILEOADS. 299 although the fee is in the municipality, have, by virtue of its proximity, special and peculiar incorporeal rights and privileges therein, in the nature of easements, which are not common to the citizens at large and constitute property of which they cannot be deprived by the legislature or the municipality, or both, without compensation.'* The fee of the streets in New York City are held in trust by the city, however they may be acquired. "These rights arise from the course of legislation, the trust created by the statute, the acting upon the faith of public pledges and upon a contract between the public and the property owner, implied from all the circumstances, that the street shall be kept open as a public street and shall not be diverted to other and inconsistent uses. There is some analogy between the rights of abutting owners as against the pi\blic, and those acquired by the public against private persons in streets or highways by dedication. The public acquires, upon acceptance of a dedication by the owner of land of a highway over the same, a perpetual easement therein for a highway, although there may be no deed, or writing, or covenant, and no formalities attending the transaction, such as is required for the creation of an easement at common law. The state has dedicated the streets in the city of ISTew Tork to be public streets. The abutting owners have acted upon the dedica- tion and upon the pledge of the public faith that they shall continue to be open public streets forever. It would be gross injustice to deprive them of the advantages intended, without compensation. A dedication ought to be, and is, we think, irrevocable."®" " Kane v. New York Elevated R. Texas Ry. Co., 66 Miss. 279, (1889) ; R. Co., 125 N. T. 164, 10 N. E. Rep. Burlington & Missouri R. R. Co. v. 258, (1891), citing in support of Reinhackle, 15 Neb. 279, (1883); the doctrine that abutting owners Haynes v. Thomas, 7 Ind. 38, have property rights in the street, (1855) ; Rennsselaer v. Leopold, the following cases: Crawford v. 106 Ind. 29, (1885). See also Moore Village of Delaware, 7 Ohio St. 460, v. New York Elevated R. R. Co., (1857); Cincinnati & Spring Grove 130 N. Y. 523, (1892); Hughes v. St. Ry. Co. V. Cumminsville, 14 Ohio Metropolitan Elevated Ry. Co., 130 St. 524, (1863) ; Jeffersonyille,M. & I. N. Y. 14, (1891). R. R. Co. V. Esterle, 13 Bush. 667, ■" Per Andrews, J., in Kane v. New (1878) ; Lackland v. North Missouri York Elevated R. R. Co., supra. R. R. Co., 31 Mo. 180, (1860) ; Theo- An owner of a lot adjoining a city bold V. Louisville, New Orleans & street although his title extends only 300 THE LAW OF STREET EAILWAYS. [§ 186. § 186. Damages to non-abutting property. — The right to recover for au iBfringement of street easements cannot be so extended as to apply to non-abutting property. Where a lot intervenes between the street in which the railroad is con- structed and the plaintiff's property, his right to recover damages for the impairment of his alleged rights in the street, and especially to air and light, without interference by the construc- tion and operation of the railroad, can rest only on the assump- to the side of the street, having no interest therein except as an abut- ting owner, nevertheless has incor- poreal rights therein which are inci- dent to his property, and which may be so Impaired as to entitle him to damages; Abendroth v. Manhattan Ry. Co., 122 N.Y.I, (1890); Pond v. Metropolitan Elevated Ry. Co., 112 N. Y. 186, (1889) ; Jewett v. Union Elevated R. R. Co., 1 N. Y. Supp. 123, (1888). An abutting owner has a right to maintain a vault in the street, and may recover compensa- tion for interference with the same by an elevated road; In re New York Elevated R. R. Co., 12 N. Y. Supp. 857, (1890), affirmed in 58 Hun 610, (1890), without opinion. The term "real estate," as used in Chap. 140, of the general railway law of 1850, covers all incorporeal hereditaments, easements, rights and privileges necessary to the con- struction and operation of the roads contemplated by the act; In re Metropolitan Elevated R. R. Co. 2 N. Y. Supp. 278, (1888). This right does not originate in a grant, and so Its existence need not be established by conveyance In specific terms, nor by adverse possession; it arises by operation of law from con- tiguity, and its existence is pre- sumed; Hughes V. Metropolitan Elevated Ry. Co., 130 N. Y. 14, (1891). In Illinois it has been held that an elevated railway is not an ad- ditional servitude. Doane v. Lake St. Elev. Ry. Co., 165 111. 510, 46 N. E. Rep. 520, 36 L. R. A. 97, (1897). "In view of the known fact," said the court, "that such elevated lines in large cities greatly accommodate the public by in- creasing the facility and safety of transit. It can scarcely be seriously contended that permitting them to be constructed and operated is to subject the streets to a new servitude or unlawful use." Ac- cord, Chicago Office Bldg. v. Lake St. Elev. Ry. Co., 87 111. App. 594, (1899). In Missouri, in the case of De Geofroy v. Merchants Bridge Term. Ry Co., 179 Mo. 698, (1903), It was held that an elevated railway was an additional servitude, Gantt, J., saying on p. 719: "We think the distinction between the fitful, inter- mittent use of a street by a surface railroad and the permanent ex- clusive use of the same by an ele- vated railroad, shutting out the air and light, and interfering with that free access which every abutter has to and from the street, is too plain to be obscured or disregarded." In Massachusetts, the statute of 1894, C. 548, declares that an ele- vated railway shall be deemed an additional servitude. Baker v. Bos- ton Elev. Ry. Co., 183 Mass. 178, 182, (1903). § 186.J ELEVATED EAILEOADS. 301 tion that the intervening owner conld not lawfully, by any improvements on his premises, cut off the light and air from the premises of the plaintiff. The owner of the in-lot could not assert such a right against the owner of the out-lot, a fact which in itself would be fatal to a claim for damages against the com- pany for an alleged invasion of plaintiff's street easements. And it is immaterial whether or not the property in question originally sustained such a relation to the street as to entitle its owner to light therefrom. ®® When a lot, which abuts on parallel streets, has buildings fronting on both, but wholly disconnected, in an action for damages caused by the construction and operation of a road in one of the streets, the plaintiff cannot recover for injuries to the building which fronts upon the other.*^ But where a lot so situated has but one building, which is accessible from both streets, the fact that it formerly consisted of two lots owned by different persons, does not preclude a present owner, who has acquired the title to the entire premises, from recovering damages for all injuries to the property considered as a single lot.®* It has been "* Mooney v. New York Elevated R. R. Co., 16 Daly 145, (1890); Cooper V. Manhattan Ry. Co., 85 Hun 217, (1895). " Mooney v. New York Elevated R. R. Co., 16 Daly 145, (1890) ; Ot- tlnger v. New York Elevated R. R. Co., 18 N. Y. Supp. 238, (1891). '" Stevens v. New York Elevated R. R. Co., 130 N. Y. 95, (1891), dis- tinguishing Mooney v. New York Elevated R. R. Co., supra, and dis- tinguishing and disapproving Greenwood v. Metropolitan Ele- vated R. R. Co., 58 N. Y. Super. 482, (1891). But in an action for injury to the easements of light, air and access appurtenant to the premises abut- ting on a street, the rear of which adjoins other premises owned by the plaintiff. In estimating the damage to the fee value of the property In question, the advan- tages thereunto from its connection with the adjoining property need not be considered, especially where no allowance is made to the owner for indirect damages to such ad- joining property by obstruction of light, air and access to the property abutting on the street. Kane v. Manhattan Ry. Co., 17 N. Y. Supp. 109, (1892). The fact that the building has a frontage on inter- secting streets may be considered in estimating the damage caused by cutting off the advantages of light and air derived by one from the other. Bischoff v. New York Elevated R. R. Co., 18 N. Y. Supp. 865, (1892). Where it appears that the build- ing on the premises of the abutter is a single structure leased by him as a whole, the fact that the build- ing has a frontage on another street, as well as the one in which the company's line is operated, does not affect the right of the court 302 THE LAW OF STEEET RAILWAYS. [§ 187. held that where real property is so situated that it is properly considered as a single parcel, although the total frontage may not be upon the street occupied by the railway, damages may be allowed, but where such premises are improved by buildings, distinct within themselves, some of them having no frontage upon the street where the railway is, it is erroneous to award damages for injury to such of the premises as have no frontage.^^ § 187. Ownership of the fee in the street In other states it is the general rule that the ownership of the fee in the street is wholly immaterial in determining the rights of abutting owners with reference to street surface railways.^"" But in New York the earlier decisions established a rule as to surface roads,'"^ which seems to be inconsistent with the later decisions and the now well settled rule established by the same courts in the elevated railroad cases. The ownership of the fee of the street has been frequently discussed by the courts, some of the cases containing elaborate historical reviews of the establishment, dedication and opening of various streets in New York City, in which elevated roads have been constructed.-^"^ Notwithstanding able arguments to the to treat it as one property In award- ing the value of property front- ing damages. Bischoff v. New ing upon the opposite side of York Elevated R. R. Co., 138 N. Y. the street, in consequence of the 257, (1893). .. operation of the road, when no In Pennsylvania, under the new part of the property so situated, constitution, the owner of property or any right of way or other ap- fronting on a street along the line purtenance, has been taken in the of which an elevated railroad has construction of the road. Penn- been built and is operated, is en- sylvania Railroad Co. v. Lippincott, titled to compensation for all the 116 Pa. St. 472, 9 Atl. Rep. 871, damages, direct and consequential, (1887) ; Pennsylvania Railroad Co. which be has suffered or may suf- v. Marchant, 119 Pa. St. 541, (1888). fer in consequence of the building '"Keene v. Metropolitan El. Ry. and operation of the railroad. Pitts- Co., 79 Hun 451, (1894) ; Reilly v. burgh Junction R. R. Co. v. Me- Manhattan Ry. Co., 43 App. Div. Cutcheon, 18 W. N. C. (Pa.) 527, 7 (N. Y.) 80, (1899); West Side Elev. Atl. Rep. 146, (1886). But a company Ry. Co. v. Johnson, 159 111. 434, 42 constructing and operating an ele- N. B. Rep. 871, (1896). vated railroad upon property owned '" Ante sec. 81. by it In fee simple fronting on one '"Ante sec. 82. side of a street Is not liable, under "^ The most thorough is by Truax, Art. XVI, sec. 8, of the Constltu- J., in Mortimer v. New York Ele- tion of Pennsylvania, for diminish- vated R. R. Co., 57 N. Y. Super. § 187.] ELEVATED RAILROADS. 303 contrai-y, the courts have uniformly arrived at the conclusion that the fee of the streets in the city of E'ew York is in the 244, 267. 6 N. Y. Supp. 898, 902, (1889). It is important inasmuch, as the determination of the ownership of many of the streets of New York City turns on the fact as to whether or not they were "Dutch Streets," i. e., laid out while the Dutch occupied the city. It was argued by the distinguished jurist Judge Dillon, in Kane v. New York Ele- vated R. R. Co., 125 N. Y. 164, (1891), that during the time of the Dutch occupation of Manhattan Island the fee or ownership of the whole hed of Pearl street was granted to individual owners of the land on the side opposite plaintiff's property, and is still owned by their successors free from any private easement in favor of the opposite owner, and that Pearl street having been an open highway during the occupation of Manhattan Island by the Dutch, was, according to the law then applicable, owned by the sovereignty free from any private trusts or easements in favor of the owners of land abutting thereon. But the court disposed of that ques- tion as follows: "Conceding thai, under the civil law, which was the law of Holland during its occupa- tion of Manhattan Island, the sover- eign is vested with the absolute title to the soil of all streets and Wghways within his dominions, that no private rights or easements exist therein, and that an owner of land adjacent to a street acquires no right, by reason of adjacency or from the fact that he has built upon the street in reliance upon its continued existence, to have it kept open as a street or way; con- ceding also that the English crown succeeded to the rights and powers of the States General as to all streets laid out during the Dutch occupation, these rights have been so modified by grant, covenant and legislation as to vest in abutting owners rights in such streets in the nature of easements of which they may not be deprived without just compensation. While the city of New York owns the fee of the lands occupied by the streets of that city, whether laid out under the Dutch regime, during the Colo- nial period, or after the organiza- tion of the state government, its tenure is in trust for street uses. * * * The trust so created is not only for the benefit of the pub- lic at large, but for the special benefit of abutting owners." Truax, J., in Mortimer v. New York Elevated R. R. Co., supra, reached the same conclusion, clos- ing a most thorough historical re- view of the subject as follows: "I am of the opinion that the fee of the Bowery, and of the other streets in the city of New York that are known as Dutch streets, never was in the Dutch government; and that it was, prior to the Revolution, bound by the rules of the common law, and not by the rules of the Dutch civil law." Freedman, J., concurring, said in substance that, under the com- mon law, the presumption is that the owners of abutting property are the owners of the fee of the high- way; that the owners on each side of the highway own the soil thereof in fee to the center, and that the rights of the public in and to the highway are no higher than those of a mere easement. Wager v. Troy Union Railroad Co., 25 N. Y. 526, (1862). This presumption ap- plies as well to the street of a city 304 THE LAW OF STREET RAILWAYS. [§ 187. municipality, but that its ownership is qualified and conditional and impressed with a trust in favor of the owners of abutting property, as well as the public at large."^ Nevertheless, it has been held, that where the city owns the fee of the streets, there still remains in the abutting owner a naked fee of the same quality as the absolute fee, and that his rights therein constitute property within the provisions of the constitution."* The rights of the abutting owner are substantially the same whether the fee be in him or in the city; therefore the courts in determin- as a country highway. Bissell v. New York Central Railroad Co., 23 N. Y. 61, (1861). The streets grew to be great commercial thor- oughfares, the municipality has al- lowed the abutting owners to make many improvements therein for their own benefit, "stoop lines," areas and steps descending into cellars or basements. They have been allowed to purchase from the city the right to build vaults under the sidewalks; sewers have been constructed through the streets connected with houses along the streets, and the owners have been assessed for the cost of the same upon the theory that their property has been benefited thereby. When the streets were paved, the expense thereof was also assessed against them. Water, gas, steam and elec- tric lights are supplied to houses through pipes running through the streets, all of which show the uni- form and settled policy of the city and state with respect to the rights of the abutting property owners. The result, therefore, in many in- stances, of the construction of ele- vated railways would be to shut off all projections from the house lines, into the streets, to deprive the houses built upon and along both sides of the streets of all the bene- fits derived from the streets. An abutting owner, therefore, being entitled to easements of light, air and access, including the benefits derived from the use of the front of his property by the erection 'ol signs thereon, may recover for in- juries to those rights arising from the construction of an elevated rail- road on the streets. "^People V. Kerr, 27 N. Y. 188, 38 Barb. 369, (1863); People v. Kerr, 37 Barb, 357, (1862) ; Hine v. New York Elevated R. R. Co., 54 Hun 425, (1889) ; In re New York Elevated Ry. Co., 7 Hun 239, (1876) ; Mortimer v. New York Elevated R. R. Co., 57 N. Y. Super. 244, 6 N. Y. Supp. 898, (1889) ; In re New York Elevated Ry. Co., 36 Hua 427, (1885); In re Brooklyn Elevated R. R. Co., 55 Hun 165, (1889); Story v. New York Elevated R. R. Co., 90 N. Y. 122, (1882); Kane v. New York Elevated R. R. Co., 125 N. Y. 164, (1891); Bissell v. New York Cen- tral R. R. Co., 23 N. Y. 61, (1861); Mahady v. Bushwick R. R. Co., 91 N. Y. 148, 153, (1883); Abendroth V. Manhattan Ry. Co., 52 N. Y. Super. 274, (1885); In re Gilbert Elevated R. R. Co., 38 Hun 438, (1886). Compare Stewart v. Metro- politan Elevated R. R. Co., 56 N. Y. Super. 377, (1889). '" Story V. New York Elevated R. R. Co., supra; In re Gilbert Ele- vated R. R. Co., supra; Abendroth V. Manhattan Ry. Co., supra; Kane § 188.] ELEVATED EAILEOADS. 30^ ing his right to compensation and damages for interference with his easements of light, air and access, treat the fact that he does not own to the middle of the street as immaterial.^"* Although the ownership of the land in the highway is in the sovereigTi, while it remains open to the public adjacent property owners are entitled to all the advantages secured by its existence.^"* An abutter, although he does not own the fee of the street, has an interest therein which gives him a right to have it kept open, so that from it access may be had to his lot, and light and air furnished across the open way. Above the surface there can be no lawful obstruction to the access of light and air to his detri- ment. He has the same rights in that respect as if he were the owner of the fee of the bed.^"^ § 188. Additional tracks an additional burden A company will not be permitted to construct an additional track unless it has acquired the right to impose such a burden on the land by condemnation proceedings as provided by law;^°^ nor can it so change the character or use of its road or fixtures in any respect V. New York Elevated R. R. Co., N. Y. Super. 416, (1890) ; Abendroth 125 N. Y. 164, (1891) ; ante sec. 81. v. Same, 54 N. Y. Super. 417, (1887) ; 105 Elevated Railroad Cases, 3 Patten v. New York Elevated R. R. Abb. N. C. 306, (1877); In re New Co., 3 Abb. N. C. 306, (1878); Dolan York Elevated R. R. Co., 70 N. Y. v. New York & Harlem R. R., 74 327, (1877); In re Gilbert Elevated App. Div. (N. Y.) 434, (1902). R. R. Co., 70 N. Y. 361, (1877) ; i™ Hine v. New York Elevated R. Sixth Avenue Ry. Co. v. Gilbert R. Co., 54 Hun 425, (1889). It is Elevated Ry. Co., 43 N. Y. Super, immaterial, for the purposes of a 292, (1878) ; In re Brooklyn Rapid suit by an abutting owner to enjoin Transit Co., 62 How. Pr. 404, (1882) ; the maintenance of an elevated Kane v. New York Elevated R. R. railroad and for damages, whether Co., 125 N. Y. 164, (1891) ; Story v. he owns the fee or not, so long as New York Elevated R. R. Co., 90 he is entitled to the easements N. Y. 122, (1882) ; Lahr v. Metropol- by virtue of his position as an abut- Itan Elevated R. R. Co., 104 N. Y. ting owner. Giordans v. Manhattan 268, (1887); Thompson v. Manhat- Ry. Co., 9 N. Y. Supp. 258, (1890). tan Ry. Co., 29 N. Y. St. Rep. 720, i" Glover v. Manhattan Ry. Co., (1890); Hachhalter v. Same, 31 N. 51 N. Y. Super. 1, (1884). See also Y. St. Rep. 112, 56 Hun 642, Stevens v. New York Elevated R. (1890); Sobel v. New York Elevated R. Co., 57 N. Y. Super. 416, (1890). R. R. Co., 31 N. Y. St. Rep. 114, ^^ Stroub v. Manhattan Elevated 56 Hun 642, (1890); Stevens v. Ry. Co., 15 N. Y. Supp. 135, (1891), New York Elevated R. R. Co., 57 affirming 14 N. Y. Supp. 773, (1891). 20 306 THE LAW OF STREET RAILWAYS. [§ 189. as to further encroacli upon private rights without making com- pensation to the abutting owner.^"' § 189. Eemedies of the abutter considered generally The courts of New York, as the result of numerous decisions of a great variety of questions affecting the rights and remedies of abutting owners, have adopted a very comprehensive and in most respects a very efficient system for the redress of injuries caused by the invasion of street easements. They hold that the main- tenance of such structures, without acquiring the right to do so from the adjoining proprietor, is a trespass upon real property continuous in its nature, which gives to the owner separate successive causes of action at law for damages from time to time as the injuries are perpetrated. Although this practice differs from the general rule prevailing elsewhere, which permits a recovery for the permanent injury in a single action,'^^'* it is well established as a part of the jurisprudence of that state.^^^ In each action the measure of recovery is the amount of damages sus- tained up to the time of its commencement. The owner may also resort to equity to prevent the continuance of the trespass and a multiplicity of actions at law. In this form of action the plaintiff may recover past damages; and, if the defendant has the right to acquire title under the power of eminent domain, following the usual practice the court will determine the amount of damages which the owner would sustain if the trespass were permanently continued, and provide for the payment of that amount by the defendant and the execution by the owner of a conveyance of his rights; and the court may in its discretion refuse an injunction if the defendant is willing to pay upon the receipt of the conveyance. This remedy would be more effica- cious than that which prevails in many other jurisdictions were it not for the rule, that at least one important element of damage, the noise of passing trains, cannot be considered in determining 1" This subject Is elaborately dis- "" Pappenhelm v. Metropolitan cussed In American Bank Note Co. Elevated Ry. Co., 128 N. Y. 436, V. New York Elevated R. R. Co., (1891). Tallman v. Metropolitan 129 N. Y. 252, (1891). Elevated R. R. Co., 121 N. Y. 119, ""Ante sec. 99. (1890). See Paret v. New York § 189.] ELEVATED EAILEOADS. 30Y the amount of alternative damages.^^^ The rule followed in that and other cases, that in a suit in equity the court can include as damages only those injuries permanently resulting from an inter- ference with the easements of light, air and access, would, by anal- ogy, require the court in such a case to exclude from its considera- tion not only the noise necessarily caused by moving trains, but also some other elements of damage which might be recovered in an action at law, such as the invasion of the privacy of dwelHng houses. "^^^ Where the defendant in an equitable action has no legal right to acquire the property, a condition allowing it to pay permanent damages will not be inserted; but, upon the right of the owner being determined, the plaintiff will be entitled to re- cover his damages up to the entry of judgment, and to an injunc- tion.^" Whether or not a defendant already engaged in operating its road wiU be justified in refusing to pay the amount of perma- nent damages, upon the delivery of a conveyance, and in submit- ting to an injunction, is a question which has been left open by the case last cited.-^-^® With the defendant's acquiescence, the owner may recover total damages in a common law action,^-^® or he may obtain full compensation in proceedings to condemn instituted by the company. ■'^^ The fact that the abutting owner is a corpo- ration organized to construct and operate a street surface railway, and has received its franchise from the state, does not authorize the appropriation of its property without compensation.^-^* Elevated R. R. Co., 18 N. Y. Supp. that plaintiff cannot be compelled 580, (1892), and sec. 99 ante, and to elect as to whicli remedy he ■will cases there cited. pursue. "^American Bank Note Co. v, ™To the same point, Roberts v. New York Elevated R. R. Co., 129 New York Elevated R. R. Co., 128 N. Y. 252, (1891), followed in Kiep N. Y. 455, (1891). V. Metropolitan Elevated Ry. Co., 17 "'Post sec. 194. N. Y. Supp. 804, (1892). "'Ante sec. 177. The rights and "" Such damages were allowed in remedies of purchasers, lessors, Moore v. New York Elevated R. B, lessees and remainder-men are dls- Cc, 130 N. Y. 533, (1892). cussed elsewhere in this chapter. "*Pappenheim v. Metropolitan ^ Third Ave. R. R. Co. v. New Elevated Ry. Co., supra. For the York Elevated R. R. Co., 19 Abb. form of entry in such cases, see N. C. 261, (1887). But a company sec. 193, post. operating a street surface railway, In Pollett V. Brooklyn Elev. R. R. under a franchise antedating the Co., 91 Hun 296, (1895), it was held acquisition of a right of way in the 308 THE LAW OF STEEET RAILWAYS. [§ 190. § 190. Elements and measure of dam^es. — ^Wheve an ele- vated railroad has created an unauthorized and illegal burden on the street as against the abutting owner, the damages recover^ able by him in an action at law include whatever injury or incon- venience results from the structure itself, or is incidental to its use, and proof of every kind of damages which results to the abutting owner from the operation and management of the road is admis- sible.^^* Accordingly, it is held that the abutter may maintain an action for injury to his street easements of light, air and access arising from the construction of the road,^^" and for the pollution of the air by the smoke, gas and other unwholesome and deleterious substances emitted and distributed by the engines. -^^-^ The ease- same street by an elevated rail- road company, cannot maintain an action either for Injunction or dam- ages for alleged injuries resulting from the presence and operation of the elevated road, built above the surface road and along the same streets. Ninth Ave. R. R. Co. v. New York Elevated R. R. Co., 3 Abb. N. C. 347, (1877) ; Sixth Ave. R. R. Co. V. Gilbert Elevated R. R. Co., 3 Abb. N. C. 372, (1878), revers- ing 41 N. Y. Super. 489, (1877). The reason assigned for denying relief was that the legislative authoriza- tion of a parallel or a super-imposed or competitive railway involves no appropriation or deprivation of the vested rights of the company own- ing a railway already constructed, and that, although the injuries com- plained of were peculiar to the plaintiffs, they were too slight fo entitle them to maintain private actions for injunction or damages. "°Ode V. Manhattan Ry. Co., 56 Hun 199, (1890); Powers v. Brook- lyn Elev. R. R. Co., 89 Hun 288, (1895). »° Hine V. New York Elevated R. R. Co., 36 Hun 293, 7 N. Y. Supp. 464, (1889); Same v. Same, 129 N. Y. 502, (1892); Peyser v. Metropolitan Elevated Ry. Co., 12 Daly 70, (1883). See Peyser v. Metropolitan Elevated Ry. Co., 13 Daly 122, (1885) ; Forth v. Manhat- tan Ry. Co., 58 N. Y. Super. 366, (1890), In which the plaintiff claimed that the company inter- fered with his rights and easements in the street and greatly inter- rupted and intercepted the air and light on his premises by the dust and dirt swept from the platform and stairway of the station; Glover V. Manhattan Ry. Co., 51 N. Y. Su- per. 1, 66 How. Pr. 77, (1883); In re Gilbert Elevated R. R. Co., 38 Hun 438, (1886) ; Kane v. Man- hattan Elevated Ry. Co., 17 N. Y. Supp. 109, (1891); Abendroth v. Manhattan Ry. Co., 52 N. Y. Super, 274, (1885) ; Ross v. Manhattan El- evated R. R. Co., 57 N. Y. Super., 412, 8 N. Y. Supp. 495, (1890); Pond V. Metropolitan Elevated Ey. Co., 42 Hun 567, (1886); Patten v. New York Elevated R. R. Co., 3 Abb. N. C. 306, (1876). ™ Abendroth v. Manhattan Ry. Co., 122 N. Y. 1, (1890); Abend- roth V. New York Elevated R. H. Co., 52 N. Y. Super. 274, (1885); Stevens v. New York Elevated R. R. Co., 57 N. Y. Super. 416, 8 N. § 190.] ELEVATED SAILEOADS. 309 ment of light is not confined to that part of the street directly in front of the premises affected; hence it may be shown, as an element of damage, that light has been cut off by shadows east by a part of the railroad structure on the same street but in front of other premises ;''^^ so where a station was constructed partly in front of plaintiff's lot the remainder extending beyond it along the street. ^^^ The abutting owner is not deprived of his right to redress by constructing an awning extending from his building to the railroad structure, especially where the railroad materially interferes with the light and air to the story above the awning. Such conduct of the owner does not constitute an abandonment of his easements, and at most entitles the company to the value of the support of the awning by its structure.'^"'' But damages are not recoverable for a rear building wholly unconnected with the main building, having its entrance upon and receiving its light and air from another street where its structure does not exist. -"^^^ In an action at law for past damages only, there may be a recovery also for the consequential injuries flowing from the operation of the road, such as the noise and vibration caused by the movement of the trains, as well as for an invasion of the easements of light, air and access.-'^® But, on grounds which are not wholly satisfactory, y. Supp. 313, (1890) ; Patten V. New "'Mattlage v. New York Ele- York Elevated R. R. Co., 3 Abb. vated R. R. Co., 11 N. Y. Supp. N. C. 306, (1876) ; Ireland v. Metro- 482, (1890) ; Same v. Same, 14 Daly politan Elevated Ry. Co., 52 N. Y. 1, (1885). Super. 450, (1885); Jones v. Met- "=Mooney v. New York Elevated ropolltan Elevated Ry. Co., 14 N. Y. R. R. Co., 9 N. Y. Supp. 522, (1890). Supp. 632, (1891); Lahr v. Metro- See cases cited in sec. 186, ante, politan Elevated Ry. Co., 104 N. Y. "" Kane v. New York Elevated 268, (1887) ; Sloan v. New York El- R. R. Co., 125 N. Y. 164, 26 N. B. evated R. R. Co., 63 Hun 300, Rep. 278, (1891), affirming 6 N. Y. (1892). It is error to consider haz- Supp. 526, (1889); Ode v. Manhat- ard from fire in an action for dam- tan Ry. Co., 56 Hun 199, (1890); ages. Matter of Brooklyn Elev. Moss v. Manhattan Ry. Co., 56 Hun Ry. Co., 6 App. Dlv. (N. Y.) 53, 611, 13 N. Y. Supp. 46, (1890); (1^94)- Taylor v. Metropolitan Elevated Ry. "^ Kearney v. , Metropolitan Ele- Co., 55 N. Y. Super. 555, (1888); vated Ry. Co., 13 N. Y. Supp. 608, Ireland v. Metropolitan Elevated (1891)- R. R. Co., 52 N. Y. Super. 450, ""Galway v. Metropolitan Ele- (1885); Patten v. New York Ele- vated Ry. Co., 13 N. Y. Supp. 47, vated R. R. Co., 3 Abb. N. C. 306, Ci-^^O). (1876); In re Kings County Ele- 310 THE LAW OF STEEET RAILWAYS. [§ 190. a distinction in this respect is made between actions for past damages and suits in equity to restrain the continuance of the obstruction, in which the court may, as an alternative, require the payment of an amount fixed by it as the permanent or fee damage to the plaintiff's property. In the latter class of cases it is held that the noise of moving trains cannot be taken into consideration. The allowance of alternative damages is to be deemed a substitute for the ordinary proceedings for condemna- tion; therefore the amount of the allowance is not wholly in the discretion of the court, but must be for such and only such dam- ages as would be given in condemnation proceedings. In an inter- esting case it was said that, as the elevated roads "stand wholly upon lands owned by the municipality, they are liable to abutting owners only for such consequential damages as result from the invasion of property rights; that is, the taking of their ease- ments in the streets — these are, the easement of air, which is impaired by smoke and gases, ashes and cinders ; the easement of light, impaired by the structure itself, and the passage of cars thereon; the easement of access affected by the drippings of oil and water and by the frequent columns."^^^ If, as stated in the vated Ry. Co., 15 N. Y. Supp. 516, sought, the elevated roads are (1891); Bischoff v. New York Elev. liable for the noise of their trains, R. R. Co., 138 N. Y. 257, (1893). upon the ground that they are tres- "' American Bank Note Co. v. passers and responsible for all in- New York Elevated R. R. Co., 129 juries resulting from their wrong- N. Y. 252,254,269, (1891). Finch, J., ful acts. Kane v. New York Ble- delivering the opinion of the court, vated R. R. Co., 125 N. Y. 164, attempts to justify the conclusion of (1891). Probably the old technical the court upon this point by the action of trespass was inappropri- following course of reasoning: "In ate, as was the action of ejectment, awarding an injunction restraining to the redress of an injury to an in- the continuance of the elevated corporeal right, but the wrong done road in front of plaintiff's premises could have been reached by an ac- the court fixed, as an alternative, tion on the case, and may properly the payment by defendants of be called a tresspass upon the prop- $50,000 for the permanent or fee erty of the abutting owners, and damage, and specifically awarded the trespassers are liable for all $1,000 of that amount as damages the damages resulting from the resulting from the noise of the wrong. But the question is quite passing trains. We have already different when no trespass and no decided that in an action at law for wrong is in any manner involved, the wrong done to abutters and in and the sole inquiry respects the which past damages only are compensation to be awarded to an § 190.] ELEVATED RAILROADS. 311 opinion in that case, there was no trespass and no wrong involved, it is difficult to see on what ground the modified judgment was permitted to stand. Unless the injury caused by the noise of passing trains is too uncertain to be estimated, it is not clear why such damages may be recovered in an action at law for past injur- ies, but cannot be included in the award for permanent deprecia- tion. And if in a suit in equity alternative damages may be awarded for emitting smoke and gases, ashes and cinders, the owner whose property Is to be rightfully taken under the due authority of law. There is no doubt in this case, and I think no doubt in any case, that the injunction of a court of equity and its alternative damages are to be deemed a substitute for ordinary proceedings for condemnation, with the practical difference only that in the one case the company is the moving party and in the other the owner. For this court does not in the least degree assent to the doc- trine which has sometimes been advocated that the alternative dam- ages are wholly in the unlimited discretion of the court, and so the elevated roads entirely at their mercy. We had supposed that every trace of a boundless and ar- bitary discretion in a court of equity had wholly disappeared. There is no difficulty in assuming that the alternative damages are awarded to the same extent and for the same elements as the compen- sation given in a special proceeding for the condemnation of land under the law of eminent domain. Such a process in each case ends in the same substantial redress. The form is different but the result is identi- cal. It follows, therefore, that the alternative damages of equity must be such and only such as would bo given in a proceeding for the con- demnation of lands for a railroad use, due regard being had to the different characteristics of the prop- erty to be taken." After reviewing several New York cases the opinion proceeds: "On such a state of the authorities it is not possible to say that there is any such settled rule as that contended for, and if there should be in the future, I think it ought at least to be somewhat lim- ited. But whatever may be the ultimate rule in surface railroad cases, I think that, as to the ele- vated roads, the noise of their oper- ation should not be taken into ac- count as an element of fee dam- age." To the modification of the judgment by striking out the sum of $1,000 allowed for noise, three of the judges dissented. For rulings on the right to re- cover for damages incidental to the running of trains, see Smith v. New York Elevated R. R. Co., 18 N. Y. Supp. 132, (1892); Seebach v. Metropolitan Elevated R. R. Co., 18 N. Y. Supp. 208, (1892); Jordan v. Metropolitan Elevated R. R. Co., 18 N. Y. Supp. 205, (1892); Covington & Cincinnati Elev. Ry. Co., v. Kley- meier, 105 Ky. 609, 49 S. W. Rep. 484, (1899) ; Lake Roland Elev. Ry. Co. V. Webster, 81 Md. 529, 32 Atl. Rep. 186, 1 Am. & Eng. R. Cas (N. S.) 360, (1895); Birch v. Lake Roland El. Ry. Co., 83 Md. 362, 34 Atl. Rep. 1013, (1896); Chicago 'of- fice Bldg. V. Lake St. Elev. Ry. Co., 87 III. App. 594, (1899); Metropol- itan W. Side El. Ry. Co. v. (Joll 312 THE LAW OF STREET EAILWAYS. [§ 190. drippings of oil and water, and the impairment of light by pass- ing trains, it can scarcely be considered "adding to the abutter's easements by changing their name," or the exercise of "a bound- less and arbitrary discretion" of the courts, putting "the elevated roads entirely at their mercy," to permit a recovery for a sub- stantial item of damages directly and necessarily resulting from the operation of the road and far more injurious in its character and extent than several other elements of damage attributable to the same cause and allowed by the same courts without question. Under such a rule, the abutter who proceeds in equity must waive and abandon all claims for an important item of damages, unless the court permits him, in an action which is held to be the equivalent of a proceeding to condemn, to recover for all but one class of injuries, and then sends him to another court to recover the remainder of his damages in actions at law indefinitely multi- plied. In two later cases the court of appeals held that the theory upon which an action at law may be maintained by the abutting owners, is that the company is in such a sense a trespasser or wrong doer as to be liable for all the injuries resulting proxi- mately from the wrongful act of maintaining its road; that the continued invasion of the privacy of the occupants of a building, where it has the effect to reduce the rental value, is such an injury, and for the damages so resulting the company is liable; and that while the looking in at the window of a dwelling by the patrons and employes of an elevated railroad company from its platform and stairs, is not the act of the company, yet, as the latter furnishes the means and opportunity, and, by its invitation and procurement for the purpose of its business, brings those per- sons where they can thus invade the privacy of the dwelling, it is liable for the damages thus occasioned.-^^^ But under the rule as to damages in equity cases, stated and criticised above, injuries of this character could not be included in an award for damage to the fee.^^' In one case^^" the superior court seems to have recognized the doctrine that damages may be recovered for per- 100 111. App. 323, (1902). See also Messenger v. Manhattan Ry. Co., s. c. 17 L. R. A. (N. S.) 1055, n. 129 N. Y. 502, (1892). (1907). ""Messenger v. Manhattan Ry. "' Mloore v. New York Elevated Co., supra. R. R. Co., 130 N. Y. 523, (1892); ""Taylor v. Metropolitan Ble- § 190. J ELEVATED EAILEOADS. 313 sonal injuries sustained by the owner or occupant of abutting property, such as loss of health or the impairment of sight or hearing; but in another case the supreme court has decided that in an action for injunction and damages there could be no recovery for injury to personal property. '^-^ In an action to recover compensation for the erection, maintenance and operation of a road, the plaintiff should not be permitted to introduce evidence in relation to the misconduct of defendant's employees /^^ and it would be error to consider damages which may possibly result from negligent and unskillful operation, such as the setting out of fire.'^^^ Evidence as to the plaintiff's legal expenses is not admissible in an action for damages, unless specifically pleaded; and proof of the payment of counsel fees for arguing an appeal is not admissible whether pleaded or not.-^^* The measure of dam- ages in an action by the owner for past injuries alone is the amount of loss sustained from the time the defendant became a trespasser upon the plaintiff's rights until the time of trial,-^^^ while the measure in actions for injunction and fee damage is the difference between the value of the property, as affected by the presence and operation of the road, and what its value would have been if the road had not been built. -^^^ In determining the vated Ry. Co., 52 N. Y. Super. 299, evidence of the effects of the rail- (1885). road on the street as manifested by "'It was held that the plaintiff, a a storm which happened after the banking company, could not re- commencement of the action, the cover for damages to its machinery, fact proven not being a basis of re- plates, paper and processes, arising covery but merely evidence In sup- from interference with the light, port of the injury done to the street and from deposits of cinders. Amer- by defendant's structure. Williams lean Bank Note Co. v. Metropolitan v. Brooklyn Elevated R. R. Co., 10 Elevated Ry. Co., 63 Hun 506, N. T. Supp. 929, (1890). (1892). "^^ Pappenheim v. Metropolitan ™ Sixth Ave. R. R. Co. v. Metro- Elevated Ry. Co., 128 N. Y. 436, politan Elevated Ry. Co., 56 Hun (1891); Tallman v. Same, 121 N. 182, (1890). Y. 119, (1890) ; Pond v. Same, 112 ■^Munford v. New York Elevated N. Y. 186, (1889). R. R. Co., 17 N. Y. Supp. 124, (1892). ""Roberts v. New York Elevated ™ Mattlage V. New York Elevated R. R. Co., 128 N. Y. 472, (1891); R. R. Co., 17 N. Y. Supp. 536, (1892). Bohm v. Metropolitan Elevated R. In an action for damages caused R. Co., 129 N. Y. 576, (1892) ; Korn by the construction and operation v. New York Elevated R. R. Co., 15 of the road, it is not error to admit N. Y. Supp. 10, (1891) ; Kernochan 314 THE LA-W or STREET EAILWATS, [§ 191. amount of permanent depreciation, every item of prospective damages will be taken into consideration, except certain injuries, referred to above, vchich are caused by the operation of the road, such as the noise of trains and the invasion of the privacy of dwellings. ^^'^ But in actions at law for total damages, where by consent such a recovery is allowed,^^^ there is no reason, under the 'New York practice, why every element of damage should not be included, as in proceedings to appropriate easements under the statute. The measure of damages recoverable by remainder- men, lessors, lessees and subsequent purchasers is discussed else^ where.^^* § 191. Eemedy by injunction — One of the most common and effective remedies to which private ovsmers have recourse, to protect their property rights in the street against invasion by the unlavsrful construction of elevated roads, is the action for injunc- tion and an award of alternative damages.'^**' The injunction nisi, in which the court determines the amount which the com- pany shall pay to the property owner as compensation for the invasion of his easements,-^*^ is said to be the only form of action in which the owner, as plaintiff, can obtain adequate and full relief. -^^^ But, as we have seen, there are some elements of damage which courts refuse to include in such recoveries, i. e. the V. New York Elevated R. R. Co., edy is at law for damages. Doane 128 N. Y. 559, (1891) ; Sloan v. New v. Lake St. Elevated R. R. Co., 165 York Elevated R. R., 63 Hun 300, 111. 510, 46 N. E. Rep. 520, 36 L. R. (1892). A. 97, (1897). "'American Bank Note Co. v. See also Garrett v. Lake Roland New York Elevated R. R. Co., 129 Elevated Ry. Co., 79 Md. 277, 29 Atl. N. Y. 252, (1891) ; Kiep v. Metro- Rep. 830, 1 Am. & Eng. R. Cas. (N. politan Elevated Ry. Co., 17 N. Y. S.) 385, 24 L. R. A. 396, 39 Cent. U Supp. 804, (1892); Messenger v. J. 283, 28 Amer. L.R. 921, (1894). Manhattan Ry. Co., 129 N. Y. 502, Ante sec 190. (1892). i«Ante Sec. 189. i"* Post sec. 194. 1" Knox v. Metropolitan Elevated "» Post sees. 201, 202, 203, 204. Ry. Co., 58 Hun 517, 12 N. Y. Supp. ^"In Illinois an injunction will 848, (1890); Pond v. Metropolitan not issue, at the instance of an Elevated Ry. Co., 112 N. Y. 186, abutting owner, because of the un- (1889); Galway v. same, 128 N. T. warranted use of streets. His rem- 132, 151, (1891). § 191.] ELEVATED RAILEOADS. 315 noise of passing trains,^** and the invasion of the privacy of dwellings."* It is believed that every other class of damages established by the evidence in the reported, cases, which wotdd be recoverable at common law, have been allowed in actions to enjoin; but in the process of differentiation, in which the courts of equity are engaged, it is probable that they will refuse to take cognizance of other injuries which might be included in a com- mon law recovery. However, as to the great variety of injuries to property included under the comprehensive phrase "invasion of the easements of light, air and access," the courts usually take jurisdiction and grant relief when the wrong threatened or suffered is substantial and the plaintiff has not lost his right to relief by laches or other conduct constituting an estoppel."® But, 1" American Bank Note Co. v. New York Elevated R. R. Co., 129 N. Y. 252, (1891). '"Messenger v. Manhattan Ry. Co., 129 N.Y. 502, (1892). '« Carter v. New York Elevated R. R. Co., 67 N.Y. Super. 279, (1889); Suarez v. Manhattan Ry. Co., 15 N. y. Supp. 222, (1891) ; Jewett v. Met- ropolitan Elevated R. R. Co., 1 N. Y. Supp. 123, (1888); Kearney v. Metropolitan Elevated Ry. Co., 129 N. Y. 76, 29 N. E. Rep. 70, (1891) ; Bohlen v. Metropolitan Elevated Ry. Co., 121 N. Y. 546, (1890); Hughes V. New York Elevated R. R. Co., 130 N. Y. 14, 28 N. E. Rep. 765,(1891) ;Caro v. Metropolitan Ele- vated Ry. Co., 46 N. Y. Super. 138, (1880), although the fee of the street is in the public; Pink V.Manhattan Ry. Co., 15 Daly 479, (1890) ; Foote V. Manhattan Ry. Co., 58 Hun 478, (1890) ; Glover v. Manhattan Ry.Co., 51 N. Y. Super. 1, (1884) ; Hughes v. Metropolitan Elevated Ry. Co., 57 N. Y. Super. 379, (1890) ; Hine v. Manhattan Ry. Co., 58 N. Y. Super. 377,(1890) ; Kemochan v. New York Elevated R. R. Co., 57 N.Y. Super. 434, (1890) ; Lihmann v. Manhattan Ry. Co., 59 Hun 428, (1891) ; McGean V. Metropolitan Elevated Ry. Co., 14 N. Y. Supp. 761, (1891) ; Massey v. Metropolitan Elevated By. Co., 59 Hun 365, (1891), holding that a re- versioner is entitled to an injunc- tion, notwithstanding an interven- ing estate for life or years; Ross V. Metropolitan Ry. Co., 57 N. Y. Super. 412, (1890) ; Roosevelt v. New York Elevated H. R. Co., 57 N. Y. Super. 438, (1890) ; Stephens v. New York Elevated R. R. Co., 57 N. Y. Super. 416, (1890), holding the own- ership of the fee to be immaterial; Shepard v. Manhattan Ry. Co., 57 N. Y. Super. 5, (1889); Siefke v. Manhattan Ry. Co., 14 N. Y. Supp. 763, (1891); Pegram v. New York Elevated Ry. Co., 14 N. Y. Supp. 769, (1891) ; Story v. New York Ele- vated Ry. Co., 90 N. Y. 122, 43 Am. Rep. 147, (1882), reversing 3 Abb. N. C. 478, (1877) ; Watson v. Metro- politan Elevated Ry. Co., 57 N. Y. Super. 364, (1890) ; Woolsey v. New York Elevated R. R. Co., 9 N. Y. Supp. 133, (1890); Kuh v. Metro- politan Elevated Ry. Co., 9 N. Y. Supp. 710, (1890); Eno v. Metro- politan Elevated Ry. Co., 56 N. Y. 316 THE LAW OF STEEET EAILWAYS. [§ 191. under the established principles of the law of injunction, the trial court may refuse to enjoin, and unless there has been a pal- pable abuse of judicial discretion the reviewing court will not disturb the judgment. ISTotwithstanding the general rule that a refusal to grant an injunction nisi would leave the owner without any adequate remedy, -^^^ a doctrine recognized and acted upon in almost innumerable cases, the power and duty of a court to enjoin the construction of the road, until compensation is made, must depend on the situation of the parties and the facts peculiar to each case.^*'^ Where a property owner sought to enjoin on the groimd that the company was about to erect a stairway which would interfere with light and access to her property, it was held that, as the damages to the plaintiff were simple and could easily be found by a jury in an action at law, there was no sufficient reason why the public enterprise of the defendant should be Super. 313, 8 N. Y. Supp. 197, (1889); Welsh v. New York Ele- vated Ry. Co., 57 N. Y. Super. 408, (1890) ; Bohlen v. Metropolitan Elevated R. R. Co., 121 N. Y. 546, (1890) ; American Bank Note Co. V. New York Elevated R. R. Co., 13 N. Y. Supp. 626. (1891). ""Knox V. Metropolitan Elevated Ry. Co., 58 Hun 517, (1890) ; Rorke V. Kings Co. Elev. R. R. Co., 22 App. Div. (N. Y.) 511,(1897); O'Reilly v. New York Elev. R. R. Co., 148 N. Y. 347, (1896) ; Kornder v. Kings Co. Elev. R. R. Co., 61 App. Div. (N. Y.) 439, (1901). "' Where an injunct'on was brought by several adjoining pro- prietors, one of whom had con- sented to the construction of the road, the work of construction hav- ing extended beyond the property of all of them, the court denied the relief, Dykman, J., stating among other reasons for the ruling, the following: "While it is now settled that abutting owners are entitled to compensation for damages result- ing to their property from the con- struction and operation of elevated railroads, yet such compensation can be obtained by an action for damages, and it by no means fol- lows that the discretion of a court of equity will be exercised to arrest the construction of such a work when it has been commenced in a lawful manner, or to compel the removal of the same after it is built. This elevated railroad is of para- mount importance to the city of Brooklyn, and great public benefits are expected to flow from its fab- rication, and the citizens of that municipality look forward with ex- pectancy to the time of its comple- tion and operation. In view of all the facts and peculiar circumstan- ces surrounding these cases, we do not think it would be a wise exer- cise of the discretionary power of this court to permit these plaintiffs to place themselves in front of this public improvement and suspend its progress. If their legal rights can be protected without such ex- § 191. J ELEVATED EAILEOADS. 317 restricted or embarrassed by a court of equity.^** An action to restrain the further use of an elevated railway cannot be main- tained on the ground of preventing a multiplicity of suits for a repetition of the trespass, where this ground of jurisdiction is not alleged in the complaint, nor found by the court; nor unless there is an actionable injury entitling the plaintiff to substantial relief.-^*® In such an action the plaintiff cannot recover for past damages caused by the railroad while the premises were owned by his grantor, from whom the claim was obtained by assignment, as the defendant would be deprived of its right to a jiiry trial on that cause of action. ■'°'' Where the fee of a public highway is not vested in the public, but remains in the owners of adjoining lots, a county cannot maintain an action to restrain the constmction of an elevated road across it, either on the ground of ownership of the fee or because the operation of the railroad will frighten teams and diminish the value of the adjoining lots which are to be assessed to reimburse the coimty for the cost of improving the highway. ^^^ The injunction will be permanently suspended where it appears that, since the rendition of the judgment granting the injunction, plaintiff has been awarded compensa- tion for his easements in condemnation proceedings instituted by defendant, and the amount has been paid into the court.^^^ But in an action for injunctive relief and also for the recovery of past damages, the fact that the defendant has procured a traordlnary interference." Nutting is injuriously affected. Rich ■v. V. Kings County Elevated Ry. Co., Manhattan Ry. Co., 19 N. Y. Supp. 48 Hun 348, (1888). 543, (1892). "•Krone v. Kings County Eleva- "» Siefke v. Manhattan Ry. Co., ted R. R. Co., 50 Hun 431, (1888). A 14 N. Y. Supp. 763, (1891). refusal to grant an injunction does "'Board of Supervisors v. Sea not prejudice the plaintiff's right to View Ry. Co., 23 Hun 180, (1880). sue at law. Marsh v. Kings Co. ""Watson v. Metropolitan Ble- Elev. R. R. Co., 86 Fed. Rep. 189, vated Ry. Co., 57 N. Y. Super. 364, 29 C. C. A. 655, (1898). 8 N. Y. Supp. 533, (1890). But "'Purdy v. Manhattan Elevated a company's petition that Injunc- Ry. Co., 13 N. Y. Supp. 295, (1891). tion proceedings instituted by an Therefore, if the plaintiff owns sev- abutter should abate pending Gen- eral lots abutting on the line of the demnation proceedings previously same road, he will not be entitled begun by it will be dismissed, to an injunction, except upon a Matter of Petition of Brooklyn showing that their collective value Elev. R. R. Co., 76 Hun 79, (1894). 318 THE LAW OP STREET RAILWAYS. [§ 191. condemnation of plaintiff's easements, and paid his prospective damages awarded therefor, is no defense, since the plaintiff had the right to recover his past damages in the action brought for that purpose, which defendant cannot defeat hy proof of partial satisfaction of plaintiff's claim pendente lite.-^'^ As the use for an elevated railroad of the easements in the street of an abutting owner, whose rights have not been acquired by purchase or condemnation, is unlawful, he has the right to equitable relief against the mere operation of the road resulting in an injury to him;^^* and his right to enjoin is not affected by the fact that his premises are subject to an outstanding lease.'^^ The right to an injunction by an abutter ceases when the abutting land is conveyed to another. He can, however, sue for past damages sustained during his ownership.-^^® An action in which the complainant prays an injunction against the maintenance of the road, and a judgment for damages for its construction and maintenance, is not technically an action of trespass, but one in equity for injunction in which incidentally damages for the maintenance of the road are demanded; and it does not abate on the death of the plaintiff, but may be revived in the name of his devisee and executor.^^'^ On the question of the amount of alternative damages, testimony is admissible as to the value of the property, including the easements in the street, which would give the property the use of the whole street above the surface.-^®^ A complaint in an action to enjoin, which alleges that plaintiff owned the fee in the street, and individually thus acquired the freedom of access and other street easements, does not constitute several claims to the fee and the easements therein; and a motion to compel plaintiffs to elect between the two claims ^ Renwlck v. New York Elevated R. Co., 12 App. Div. (N. Y.) 263, R. R. Co., 15 N. Y. Supp. 149,(1891). (1896); Hutton v. Metropolitan 1" American Bank Note Co. v. Elev. Ry. Co., 19 App. Div. (N. Y.) New York Elevated R. R. Co., 13 243, (1897). N. Y. Supp. 626, (1891). "'Sanders v. New York Elevated i^^Macy V. Metropolitan Elevated R. R. Co., 15 Daly 388, (1889); Ry. Co., 59 Hun 365, 12 N. Y. Hirsch v. Manhattan Ry. Co., 84 Supp. 804, (1891); Suarez v. Man- App. Div. (N. Y.) 374, (1903). hattan Ry. Co., 15 N. Y. Supp. 224, ««Korn v. Metropolitan Elevated (1891). See also sec. 203, post. Ry. Co., 59 Hun 505, 13 N. Y. Supp. «°Saxton V. New York Elev. R. 518, (1891). § ISS'.] ELEVATED RAILEOADS. 319 shoTild be denied."* An injunction may be maintained against a common council to restrain the passage of a proposed resolution which would name additional streets and give colorable authority for the erection of a railroad therein.^^" § 192. Parties to actions for damages and injunction. — In an action for injunction and damages, it is not a misjoinder of plaintiffs to unite all who have an interest in the action, although it is not a co-extensive interest. Accordingly, where one of two tenants in common dies leaving children, although his heirs cannot recover damages accruing before his death, still it is proper to make them plaintiffs, as they have a right to recover that portion of the damages which accrued after they became vested with the title.^®^ A tenant for life or until marriage cannot maintain such an action without making the remainder-men parties."^ The fact that the title to the street is nominally in a person against whom the abutting owner has acquired a pre- scriptive right, and under whom the company does not claim, does not affect the abutter's right to damages.^®^ So when one holds the legal title to real property, although another is partner with him therein, he may maintain an action for injunction and dam- ages in his own name as the real party in interest; nor does the fact that, after the commencement of the action and before the trial, he enters into a contract for the sale of a portioii of the property, which is not performed at the time of the trial, limit his recovery to the undivided half interest in the damages sus- tained."* An action for damages may be maintained against the ""Sobel V. New York Elevated Supp. 580, (1892). All owners of Ry. Co., 9 N. Y. Supp. 342, (1890). undivided interests in abutting ""Negus V. City of Brooklyn, 10 property should be made parties. Abb. N. C. 180, (1881). Woodworth v. Brooklyn Elev. R. R. "'Shepard v. Metropolitan Ry. Co., 29 App. Div. (N. Y.) 1, (1898). Co., 57 N. Y. Super. 5, (1889). The "''Bach v. New York Ellevated right to recover for injury to rental Ry. Co., 14 N. Y. Supp. 620, (1891). value is a personal asset, which ''»Kane v. Metropolitan R. R. passes, on the owner's death, to Co. 125 N. Y. 180, 26 N. E. Rep. 278, Us personal representatives, and (1891). not to his devisees. Paret v. New '" Korn v. New York Elevated R. York Elevated R. R. Co., 18 N. Y. R. Co., 13 N. Y. Supp. 514, (1891)! 320 THE LAW OF STEEET EAILWAYS. [§ 193. company which constructed the road and the one engaged in operating it during the time covered by the complaint.-'*^ § 193. Provisions of the judgment in actions to enjoin The proper form of judgment in an abutter's action for damages and to restrain the operation of an elevated railroad is the determination of the amount of past damages, and the amount of damages which plaintiff will sustain if trespass be permanently continued, and an order that if such future damages are not paid within a speciiied time an injunction restraining the opera- tion of the road shall issue.^^® A defendant in an action for an injunction and damages is not entitled, as a matter of right, to have the decree provide for a suspension of the injunction con- ditioned upon its acquisition of the property by condemnation, nor upon equitable gi-ounds where it has been an intruder on the property for ten years without attempting to acquire it."' When there is a valid mortgage on the premises, the judgment ^ Pond V. Metropolitan Elevated R. R. Co., 42 Hun 567, (1886). Where plaintiff's premises are af- fected by two elevated railroads, one on either side, erected by dif- ferent corporations, but operated by a lessee of both roads, a judg- ment against one corporation for easements taken on one side is no bar to an action for easements taken on the other side, although the lessee of both corporations is a defendant in both actions, the plaintiff's ulterior remedy being against the lessors separately, if it failed in obtaining satisfaction from the lessee. American Bank Note Co. V. Metropolitan Elevated Ry. Co., 18 N. Y. Supp. 532, (1892). A consenting abutting owner is not entitled to a preliminary in- junction. Bellew V. New York W. & C. Trac. Co., 47 App. Div. (N. Y.) 477, (1900). But see Kornder v. Kings Co. Elev. R. R. Co., 41 App. Div. (N. Y.) 357, (1899). Where abutting premises are owned by the members of a firm as tenants In common a consent to the operation of the road, signed in the firm name by one of the members, does not bind his co- partners in the absence of evidence showing authority to sign for the firm. White v. Manhattan Ry. Co., 139 N. Y. 19, (1893). An owner of land subject to a lease may main- tain an action for an injunction and damages to the reversion. Winthrop v. Manhattan Ry. Co., 17 App. Div. (N. Y.) 509, (1897). See also McGean v. Metropoli- tan Elev. By. Co., 133 N. Y. 9, (1892); Phillips v. Metropolitan Elev. Ry. Co., 12 App. Div. (N. Y.) 283, (1896); Thompson v. New York Elev. Ry. Co., 16 App. Div. (N. Y.) 449, (1897) ; Kernochan v. Manhattan Ry. Co., 161 N. Y. 339, (1900). ""' Herman v. Manhattan Ry. Co., 58 App. Div. (N. Y.) 369, (1901). "' Lawrence v. Metropolitan Ele- vated Ry. Co., 12 N. Y. Supp. 546, § lO-l-.J ELEVATlCn l^VILEOADS. 321 should provide for its release, even if the mortgage© is a party to the action.^^® A provision in the judgment for plaintiff, for the payment by defendant of damages in avoidance of the injunc- tion, is a matter of favor, and, although evidence as to fee damage has been erroneously admitted, if injury of a substantial character is shown, the court may, instead of granting a new trial, so modify the judgment as to restrain the defendant from maintaining or operating its road, unless within a reasonable time after notice and entry of judgment it proceeds to acquire title by condemning the appurtenant easements. ^*^ In such a decree it is proper to include a clause forbidding the running of trains, since that is on© of the incidents of the maintenance of the road.^™ Where a referee finds past damages in separate amounts caused by the operation of the road to two lots, several squares apart, a judgment on his report enjoining the operation of the road in front of one lot only, but requiring payment of the damages to both as a means of avoiding the injunction, is erroneous, but the error may be corrected, on appeal, by simply modifying the judgment in respect to the amount to be so paid."^ § 194. When total damages recoverable at law ^As stated elsewhere,"^ it is the general rule that in an action at law the (1891) ; "Woolsey v. New York Ble- of injunction, according to the vated R. R. Co., 9 N. Y. Supp. 133, usual practice, is in substance as (■^^^^h follows: That upon tender to plaint- ^^ Woolsey v. New York Elevated iff within thirty days from the R. R. Co., 134 N. Y. 323, 30 N. E. date of this judgment of the sum Rep. 387, (1892). If the plaintiff of for the easements in , is a trustee for life tenants, the appurtenant to the premises de- decree should require a release not scribed in the complaint, plaintiff only from him but also from the deliver or cause to be delivered to life tenants. Reed v. Metropolitan the defendant a conveyance and re- Elevated Ry. Co., 18 N. Y. Supp. lease from himself conveying and 811, (1892). releasing to the defendant the ""Blumenthal v. New York Ele- right to use the street for defend- vated R. R. Co., 17 N. Y. Supp. 481, ant's railroad as at present oper- ^^^^^'l- ated and maintained, and in the ""Suarez v. Manhattan Ry. Co., event that said money is so ten- 15 N. Y. Supp. 222, (1891). dered to plaintiff no injunction '" Sperb V. Metropolitan Elevated shall issue herein. 4 Har Law Ry. Co., 17 N. Y. Supp. 469, (1892). Rev. 70. The optional clause in the decree "=Ante sec. 190. 322 THE LAW OF 8TEEET EAILWAYS. [§ 1^5 t). abutter can only recover for past damages. But under excep- tional circumstances the courts have allowed the plaintiff in such an action to recover the total damages to the fee for a permanent injury amounting to a taking of private property, even where the unauthorized appropriation was of street easements only. This has been permitted upon an offer at the trial by the plaintiff to convey to the defendant the property alleged to have been unlaw- fully appropriated."® So the parties may, by agreement or acqui- escence, sanction the recovery of permanent damages in a single action. ^^* § 195. Damages as affected by benefits — The general Eailroad Act of New Tork"^ and the Eapid Transit Act"® provide that the commissioners of appraisal, in determining the amount of compensation to be made to parties owning property acquired for the construction of railways, shall not make any allowance or deduction on account of any real or supposed benefits which the party in interest may derive from the construction of the pro- posed railroad. The rule established by the courts, in awarding compensation to the owner of lands taken under the general railroad law, is that the owner shall receive its full market vahie, that from such value no deduction can be made, and where a part only is taken a fair and adequate compensation shall be paid for all injury to the residue.-'^^ But, in considering the ques- tion of damages to the remainder, the courts have held that the effects of the road must be taken into consideration, and that if the result is beneficial there is no damage and nothing can be awarded. The rule so established under the general railroad law is also applicable to proceedings under the Eapid Transit Act by "' Ireland v. Metropolitan Ble- *" Troy & Boston R. R. Co. v. Lee, vated Ry. Co., 52 N. Y. Super. 450, 13 Barb. 169, (1852); In re Utica, (1885). Chenango & Susquehanna Valley R. "• Porter v. Metropolitan Ble- R. Co., 56 Barb. 456, (1868) ; In re vated Ry. Co., 120 N. Y. 284, (1890) ; Prospect Park & Coney Island R. R. Lahr v. Metropolitan Elevated Ry. Co., 13 Hun 345, (1878) ; In re New Co., 104 N. Y. 268, (1887) ; Newman York Central & Hudson River R. R. v. Same, 118 N. Y. 618, (1890). Co., 15 Hun 63, (1878); In re New "»Chap. 140, Laws 1850, sec. 16. York L. & W. R. R. Co., 49 Hun "" Chap. 606, Laws of 1875, sec. 539, (1888) ; Henderson v. New York 20. Otherwise by amendment of Central R. R. Co., 78 N. Y. 423, 1882. • (1879) ; Lewis on Eminent Domain § 195. J ELEVATED EAILEOADS. 323 which the elevated railroads are governed/'^^ But the property taken by the elevated railroads in Ifew York City consists almost entirely of easements in the streets.^''® In estimating their value they cannot be consiidered as property separate and distinct from the lots to which they are appurtenant; the compensation for their loss is measured by the damage sustained by the abutting property, not its value separate therefrom. ■'**' The New York supreme court laid down the rule that the basis of the appraise- ment of those easements is the difference in the value of the property to which they were attached before and after the con- struction of the railroad. It is said that no inquiry in that direc- tion can be conducted without considering the effect of the road after it is constructed, be that beneficial or otherwise, and that such a rule is not in conflict with the statute.'^*^ This rule is applied not only to actions for past damages, but also to actions for fee damage^*^ and to actions for injunction and damages' ^^ and to condemnation proceedings,-'^* although the last three forms of action proceed upon the theory that full compensation is to be made for property taken. While this seems to be a plain disre- gard of the statute, the rule has been approved by the court of appeals in several cases.^^^ In applying this rule it is held that, (3d Ed.), sec. 693; Newman v. Met- ™Ante sees. 187, 189. ropolitan Elevated K. R. Co., 118 N. ™ Newman v. Metropolitan Ele- Y. 618, (1890). yated R. R. Co., supra; Bohm v. Met- "' Newman v. Metropolitan Ele- ropolitan Elevated R. R. Co., supra, vated R. R. Go., 118 N. Y. 618, "' In re Brooklyn Elevated R. R. (1890) ; Odell v. New York Elevated Co., 8 N. Y. Supp. 78, (1889). R. R. Co., 130 N. Y. 690, (1892); "^Lahr v. Metropolitan Elevated Bohm V. Metropolitan Elevated R. R. R. Co., 104 N. Y. 268, (1887); R. Co., 129 N. Y. 576, 29 N. E. Rep. Newman v. Metropolitan Elevated 802, (1892); Steinmetz v. Metro- Ry. Co., 118 N. Y. 618, (1890). politan Elevated Ry. Co., 18 N. Y. "» Odell v. New York Elevated R. Supp. 209, (1892). R. Co., supra; Bohm v. Metropolitan The test seems to be, to what Elevated R. R. Co., supra; Brush v. extent, if any, do the disadvantages Manhattan Ry. Co., 13 N. Y. Supp. caused by the railway exceed the 908, 6 Abb. N. C. 73, (1890). advantages? Burk v. Metropolitan ^In re Brooklyn Elevated R. R. Ry. Co., 73 Hun 251, (1893); Mc- Co., 55 Hun 165, (1889); In re New Cready v. Metropolitan Elev. Ry. York Elev. R. R. Co., 76 Hun 385, Co., 76 Hun 531, (1894); Wagner (1894). V. New York Elev. R. R. Co., 79 "« Newman v. Metropolitan Ble- Hun 445, (1894). vated R. R. Co., supra; Odell v, 324 THE LAW OF STEEET RAILWAYS. [§ 195. before setting off benefits against injuries, it must be shown to what extent the railroad has enhanced the value of the property.-'** Where the rental value of plaintiff's property has greatly in- creased since the construction of the road, and the increase is due chiefly, if not exclusively, to the operation of the road in the immediate proximity of the property, no injury has resulted to the plaintiff entitling him to relief by injunction against the continued appropriation of his easement in the street.''*^ If the proof shows that before the coming of the elevated road in that particular locality, the locality was substantially or mainly vacant, and not built up, and that after the road came, the building and improvement swiftly followed, accompanied by steady increases of value, it will be the duty of the judge or jury to award no damages and dismiss the complaint, even although side streets have appreciated more rapidly than the avenue occupied by the elevated road. But if the proof shows that the elevated road has occupied a locality already substantially bnilt up in which normal city growth is operating and materially increasing values, but as a consequence of the road the natural advance has halted or palpably lessened, Avhile in the adjacent side streets it continues, there is possibly an inference of fact that the abutter has been injured.-'*^ And as such relief can be granted only where the plaintiff sustains a substantial injury to his property, it will be denied where the evidence shows that the operation of the road has caused the value of one of plaintiff's lots to increase in an amount as great as the depreciation in the New York Rlevated R. R. Co., supra; R. Co., 76 Hun 283, (1894) ; Malcolm Bohm V. Metropolitan Elevated R. v. New York Blev. R. R. Co., 147 R. Co., supra, gee also Gray v. N. Y. 308, (1895). Manhattan Ry. Co., 16 Daly 510, Where there has been no Injury (1891) ; Otten v. Manhattan Ry. Co., to abutting property from the main- 2 App. Div. (N. Y.) 396, (1896). tenance and operation of an ele- "" Jefferson v. New York Eleva- yated road for eight years past, ted R. R. Co., 11 N. Y. Supp. 488, there can be no injury in the future, (1890); Steets v. New York Elev. as a result of its maintenance anil R. R. Co., 79 Hun 288, (1894). operation. Where the rental value "'Brush v. Manhattan Ry. Co., has not depreciated and there has supra. been no depreciation of real estate "" Bookman v. New York Elev. R. values, an award for fee damages R. Co., 147 N. Y. 298, (1895). See can not be made. Porter v. Seaside also O'Reilly v. New York Elev. R. Ry. Co., 91 Hun 201, (1895). § 195. J ELEVATED KAILEOADS. ^--j value of his other lots.^*® The mere fact that the purchase of property on the line of the road has proved to be a profitable venture cannot be taken into consideration;^^" but the company may introduce evidence to the eflFect that the general course of business in the street upon which the abutting property is located has increased, and also that the value of the property in question for business purposes has been enhanced.^®^ But an allegation sustained only by the opinion of a witness, as against the positive testimony of the injured party that hisi trade was not in fact increased by the location of a station in the vicinity of his premises, will not justify a court in finding that a general rise in the real estate in that location was attributable to the operation of the road.^"^ The proximity of a station of the railway, which may be removed at any time, should not be considered as a perma- nent element of benefit;-'"^ nor can benefits to premises derived from a neighboring station be set oif against consequential dam- ages where none have been found, but only the actual value of the easements taken by the corporation.^®* And the fact that the erection of a station has caused property in the immediate vicinity of a terminal point of a surface railroad to increase in value, by being applied to different uses than formerly, is not suificient to warrant a finding that the terminal property has also increased in value, since it cannot be devoted to any other uses with profit '»" Rich V. New York Central R. R. fee damages. McElroy v. Manhat- Co., 14 N. Y. Supp. 167, (1890); Gray tan Ry. Co., 6 App. Div. (N. Y.) 367, V. New York Elev. R. R. Co., 43 (1896). App. Div. (N. Y.) 104, (1899). ""^ Sloane v. New York Elevated R. i" Sherwood v. Metropolitan Ele- R. Co., 17 N. Y. Supp. 769 (1892) vated Ry. Co., 58 Hun 611, 12 N. Y. The mere presence of an elevated Supp. 852, (1890). railroad station two blocks away is "'Doyle v. Manhattan Ry. Co., 8 not necessarily a benefit to hotel N. Y. Supp. 323, 24 Abb. N. C. 72, property, and if the existence of (1890); Bookman y. New York such benefit is claimed, facts must Elev. R. R. Co., 137 N. Y. 302, be shown from which the inference ^^^^^^" may reasonably be drawn. Israel "" Storck V. Metropolitan Elevated v. Manhattan Ry Co 158 N Y R. R. Co., 14 N. Y. Supp. 311, (1891) ; 624, (1899) aflirmed 131 N. Y. 514. (1892); - Wiener v. New York Elevated Powers v. Brooklyn Elev. R. R. Co., R. R. Co., 16 N. Y. Supp 913 (Sup 157N.Y.105, (1898). A more rapid Ct. 1891). See also Jones v New increase m value in adjoining, than York Elevated R. R. Co 18 N Y in the abutting, property justifies Supp. 134, (1892); Bischoff v Same' 326 THE LAW OF STEEET RAILWAYS. [§ 196. to its owners."" Where the only evidence in an action for dam- ages, which shows any disadvantages to property, is simply the statement of the party complaining, that the running of trains darkens his store when they pass and that he is annoyed by cinders, smoke and smells, and there is testimony in the case showing that the construction of the road has made the portion of the street where the property is located more desirable for business purposes, the fair conclusion would be that the special benefits ofEset any disadvantages that may exist, and that the property is worth more with than without the road.^®* § 196. Change in character of neighborhood. — In an action for injunction and damages, evidence of a general decrease in the value of property in the neighborhood is competent and relevant on the issue as to the deterioration of plaintiff's property, and is 18 N. Y. Supp. 865, (1892) ; Slater v. Manhattan Ry. Co., 18 N. Y. Supp. 531, (1892). ^» Sixth Avenue R. R. Co. v. Man- hattan Ry. Co., 14 N. Y. Supp. 97, (1891). "°Sperb v. Metropolitan Elevated Ry. Co., 17 N. Y. Supp. 469, (1892). In an action for an injunction, or for damages for the invasion of easements, it is not error to refuse to make a finding of the abstract proposition that any benefits accru- ing to the property from the ele- vated road were to be set off against any damage which might have been sustained. Werfelman v. Manhat- tan Ry. Co., 11 N. Y. Supp. 66, (C. P. 1890). In Metropolitan West Side Elev. Ry. Co. v. Stickney, 150111. 362, 37 N. E. Rep. 1098, 26 L. R. A. 773, 3 Am. & Eng. R. Cas. (N. S.) 147, (1894), it was said: "By a practically unbroken line of deci- sions In this state it is well settled that the test, under the present statute, as to whether land not taken is damaged, is the effect of the improvement upon the value of the land. * • * Special benefits are such benefits flowing from the proposed public work as appreciably enhance the value of the particular tract of land alleged to be benefited. As already said, the fact that other property in the vicinity is likewise increased in value from the same cause — that Is, also specially bene- fited by the improvement, — furnishes no excuse for excluding the con- sideration of special benefits to the particular property in determining whether it has been damaged or not, and if it has, the extent of the depreciation in value." See also Metropolitan West Side Elev. Ry. Co. V. White, 166 111. 375, 46 N. E. Rep. 978, (1897) ; Metropolitan West Side Elev. R. R. Co. v. Springer, 171 111. 170, 49 N. E. Rep. 416, (1898). In Maryland it is held that where an abutter is not specially benefited but reaps only such benefits as are shared by the community at large, such benefit can not Ve deducted from the damage caused by a rail- way. Lake Roland Elev. Ry. Co. v. Prick, 86 Md. 259, 37 Atl. Rep. 650, (1897). § 197. J ELEVATED BAILEOABS. 32 < not an exception to the rule which excludes evidence of injury to property not connected with that in question.^®'^ Upon the trial of such an issue it is competent for either party to show the general effect of the operation of the road upon other property abutting upon the street in the vicinity of and similarly situated to the plaintiff's, when it is apparent that the damages claimed by him as actually sustained must have been common in the vicinity along the street. But while the court cannot confine the examination to the premises in question and exclude all proof offered as to the general effect upon other premises, it may in the exercise of its discretion confine the examination to premises in the vicinity, giving reasonable range to the inquiry, and may limit the number of witnesses. It is competent also to prove, where plaintiff's premises are fitted and occupied for a particular busi- ness purpose, the general effect of the operation of the road upon the business and traffic in the streets.-'®* § 197. Exemplary and excessive damages — ^Although in an action for permanent and continuing torts the owner is not always restricted to the mere pecuniary loss sustained,^®' a recovery of exemlplary damages has: not been permitted under the facts disclosed in any of the elevated railroad cases in which such claims have been made. Thus it has been held that the failure of a company to institute condemnation proceedings along its whole line within two years after the decision of the Story case,^"" ^Biggart v. Manhattan Ry. Co., that his tract did not share In the 12 N. Y. Supp. 549, 550, (1891) ; rise in value of land in his vicinity. Drucker v. Same, 106 N. Y. 157, Manhattan Ry. Co. v. O'Sullivan, 12 N. E. Rep. 568, (1889) ; Sher- g App. Div. (N. Y.) 571, (1896) ; wood V. Metropolitan Elevated Ry. gt^cey v. Metropolitan Elev. R. R. Co., 12 N. Y. supp. 852, (1890). Co., 15 App. Div. (N. Y.) 534, (1837). Compare Moore v. New York Ele- ^ company can not question vated R. R. Co., 8 N. Y. Supp. 769, plaintiff's right to alter his build- 24 Ahb. N. C. 74, 15 Daly 510, (1890); Mooney v. New York Ele- vated R. R. Co., 9 N. Y. Supp. 522 (1890) ing into an office building upon the ground that his damages were en- hanced thereby. Shephard v. Met- -» Doyle v. Manhattan Ry. CO., 128 ropolitan Elev. Ry. Co., 48 App. N. Y. 488, (1891) ; Israel v. Manhat- ^iv. (N. Y.) 452, (1900). tanRy. Co., 15SN.Y. 624, (1899). ^"Sedgwick on Damages, (8th If the value of the abutter's land Ed.), sec. 930. has not decreased he may show '°° Story v. New York Elevated R. 328 THE LAW OV STREET EAILWAYS. [§ 198. is not of itself such a wanton and oppressive act as. to entitle an abutting owner to punitive damages, and that to justify an award of etxemplary damages in such a case, the evidence must show on the defendant's part malice, fraud or gross negligence.""-^ It has been held also that the fact that a company, in a prior action involving its right to maintain a station opposite plaintiff's premises, took an appeal to the general term of the common pleas, and then to the court of appeals, and withdrew the latter appeal when it was about to be reached, was not such evidence of the want of good faith as to justify the jury, in a subsequent action between the same parties involving the same question, in awarding exemplary damages against the defendant for main- taining the structure.""^ But the courts, while not invad- ing the province of the jury,""^ have not hesitated ta afford relief against recoveries which were clearly excessive.""* § 198. Assignment of claim for damages. — Although the pur- chaser of a claim for past damages may maintain an action R. Co., 90 N. Y. 122. (1882), in which it was first decided that an abutting owner was entitled to damages, but not necessarily covering the case of those owners whose only prop- erty in the street consisted of the easements of light, air and access. '"^ Powers V. Manhattan Ry. Co., 120 N. Y. 178, 182, 24 N. E. Rep. 95, (1890). The history of the ele- vated railroad litigation as stated by Brown, J., in the opinion in this case justifies the conclusion reached by the court. '"^ Mattlage v. New York Elevated R. R. Co., 17 N. Y. Supp. 536, (1892). ™' Galway v. Metropolitan Ele- vated Ry. Co., 13 N. Y. Supp. 47, (1890) ; Moss v. Manhattan Ry. Co., 13 N. Y. Supp. 46, (1890). "" Where it appeared that for the two years immediately prior to the construction of the road the prop- erty let for $3,900, and that after the road went into operation the rents were reduced to about ^3,000, an award of $25,000 was held excessive. Thompson v. Manhattan Ry. Co., 11 N. Y. Supp. 641, (1890). On an ap- plication for injunction and dam- ages the value of the premises was fixed at $30,000, in 1872, and the evidence showed that it was of the same value at the time of the suit, while the value of property in the vicinity, but not on the line of the railroad, had increased from 18 to 20 per cent, in that period. The court granted the injunction and made relief therefrom conditional on the payment of $8,000, as dam- age to the fee. It was held that the damages were excessive, but, as all proof necessary to fix their actual amount was before the appellate court, the judgment would be con- firmed on condition that the plain- tiff would consent to reduce the fee damages to $5,400; but otherwise would be reversed. WiUetts v. New York Elevated Ry. Co., 15 N, Y. Supp. 923, (1891). §199.] ELEVATED EAILROADS. 329 therefor in his own name, he cannot, after becoming the owner of the property injured, in an action for injunction and fee dam- age, recover on the claim for past damages caused by the railroad, while the premises were owned by his grantor, as the defendant would be deprived of its right to a trial by jury as to that cause of action.^**' The vendor may reserve his right to recover for past and future damages,™^ but the reservation of his claim for pros- pective damages, to be effectual against future purchasers, must be recorded or at least brought to their actual notice. ^"^ § 199. Interest on damages — When total damages are allowed in an action at common law, the jury may by their ver- dict either assess the value as of the time of the original taking and award interest thereon, or give a corresponding gross sum including both principal and interest. But the owner cannot in addition recover for loss of rents, either in the place of interest or otherwise.-"^ In an action for damages to rental value the jury =»= Siefke v. Manhattan Ry. Co., 14 N. Y. Supp. 763, (1891) ; Sommer v. New York Elevated Ry. Co., 14 N. Y. Supp. 619, (1891). Compare Jef- ferson V. Same, 11 N. Y. Supp. 488, 489, (1890). As to the right of trial by jury, see sec. 205, post. ^"° Porter v. Metropolitan Ry. Co., 120 N. Y. 284, (1890). ^ The reservation by an unre- corded written contract by the vendor of the right to sue for, col- lect, compromise, compound and re- serve to his own use all claims and demands now arisen and accrued, or hereafter to arise or accrue against "any corporation or corporations, person or persons," for damages by the construction and operation ot an elevated railroad, although bind- ing upon the parties thereto, cannot affect the rights of a subsequent purchaser. Foote v. Manhattan Ry. Co., 58 Hun 478, (1890). See also Mitchell V. Metropolitan Elevated Ry. Co., 56 Hun 543, (1890). A grantee of a municipality which while it was owner of premises, had given its consent for the con- struction of the company's road located in part in front of the municipality's tract, cannot enjoin the operation of the road. Herzog v. New York Blev. Ry. Co., 76 Hun 486, (1894). A purchaser of a tract of ground abutting on a highway, over which an elevated railway has been con- structed and is in operation, has constructive notice of an easement appurtenant to the property which puts him upon inquiry and charges him with knowledge of an unrecord- ed prior release of the same given by his own grantor. Ward v. Metropolitan Elev. Ry. Co., 82 Hun 545, (1894); 152 N. Y. 39, (1897). See also Domschke v. Metropolitan Elev. Ry. Co., 74 Hun 442, (1893); Shepard v. Metropolitan Elev. Ry. Co., 82 Hun 527, (1894) ; Mooney v. New York Elev. Ry. Co., 4 App. DIv. (N. Y.) 30, (1896.) =™ Ireland v. Metropolitan Eleva- 330 THE LAW OF STEEET EAILWAYS. [§ 200. have the right in their discretion to award interest, but it is error to charge that they must do so.^"* Where interest is included it cannot exceed the legal rate of six per cent., and if excessive interest is allowed the award must be reduced to conform to the legal rate.-^" In equitable actions damages to rental value may be computed to the time of trial, and interest on the sum awarded for fee value may be allowed until the time of the payment of the award.^" § 200. Other questions arising in actions for past and fee damages — In actions for damages to the freehold the plaintiff must prove his title to the property.^^^ A cause of action on a bond, given by a company to pay all damages which may be assessed, cannot be united with a complaint against the company for damages resulting from the construction of the road, as that would be uniting an action for tort with one on a contract.^^^ If or can past and future claims be merged by assignment.^^* The right of the owner to recover for damages sustained is personal, and does not pass with the property when sold on foreclosure.^^' Where the structure of which complaint is made obstructs the light of a building, the fact that the building has been used by the tenant for the dis.play of cut glass, for which artificial is better than natural light, cannot be considered by the jury in determining the damages to which the owner of the building is entitled for injury to the rental value f^^ nor is it competent to show that the rental value of property has not been diminished for use as a house of prostitution.^^'' After allowing damages for ted Ry. Co., 52 N. Y. Super, 450, (1890); Kelley v. New York & (1885). Manhattan Beach Ry. Co., 81 N. Y. ^1 Moore v. New York E31evated 233, (1880); Jones v. Metropolitan R. R. Co., 126 N. Y. 671, 27 N. E. Elevated R. R. Co., 14 N. Y. Supp. Rep. 791, (1891), reversing 12 N. Y. 632, (1891). Supp. 552, (1890). '""Hart v. Metropolitan Elevated ""Ottinger v. New York Elevated Ry. Co., 15 Daly 391, (1889). R. R. Co., 15 N. Y. Supp. 18, (1891). «* Senft v. Manhattan Ry. Co., 57 ™Kane v. Manhattan Ry. Co., 17 N. Y. Super. 417, (1890). N. Y. Supp. 109, (1891). ""Porter v. Metropolitan Ele- ="Bruen v. Manhattan Ry. Co., 14 vated Ry. Co., 120 N. Y. 284, (1890). N. Y. Supp. 285, (1891) ; Dean v. '^' Scott v. Manhattan Ry. Co., 17 Metropolitan Elevated R. R. Co., N. Y. Supp. 364, (1892). 119 N. Y. 540, 23 N. E. Rep. 1054, "'Lawrence v. Metropolitan Ele- § 200.J ELEVATJfiD HAimOAiJa. 331 rental value, it is error to award damages also for extra consump- tion of gas caused by the obstruction of plaintiff's ligbt, where the allowance for damages has been based partly on the loss of light. ^^^ It is a well established rule that an abutting lot owner is entitled to recover damages to the fee of his lot from the com- mencement of the building of the road to the time of the trial, as a condition of the company being allowed to continue the prosecution of its enterprise ;^^® but the rule which permits the owner to recover for a loss of rental value is held to be inappli- cable to the case of a corporation owner in occupancy, on the ground that a corporation cannot be subjected to personal incon- venience and discomfort. The recovery in such a case can only be had for additional expenses incurred.^^" vated Ry. Co., 126 N. Y. 483, 27 N. E. Rep. 765, (1891), affirming 12 N. Y. Supp. 546, (1890). ^' Mattlage v. New York Elevated R. R. Co., 17 N. Y. Supp. 536, (1892). '^' Williams v. Brooklyn Elevated R. R. Co., 126 N. Y. 96, 26 N. E. Rep. 1048, (1891); Hughes v. New York Elevated R. R. Co., 130 N. Y. 14, 28 N. B. Rep. "765, (1891), affirm- ing 8 N. Y. Supp. 535, (1890) ; Pap- penheim v. Metropolitan Elevated R. R. Co., 128 N. Y. 436, 28 N. E. Rep. 518, (1891); Kent v. Manhat- tan Ry. Co., 4 App. Div. (N. Y.) 93, (1896). '^'' American Bank Note Co. v. New York Elev. R. R. Co., 13 N. Y. Supp. 626, (1891); Seventh Ward National Bank v. New York Ele- vated R. R. Co., 53 N. Y. Super. 412, (1886) ; Fifth National Bank v. New York Elevated R. R. Co., 28 Fed. Rep. 231, (1886); New York National Exchange Bank v. Metro- politan Elevated R. R. Co., 53 N. Y. Super. 511, (1886). A religious corporation, conduct- ing services In a church edifice, is entitled, as an abutting owner, to recover as past or rental damages (though not as fee damages) com- pensation for the injury arising out of the fact that the noise caused by the operation of the elevated rail- road has seriously Interrupted and interfered with the religious ex- ercises. Rector of Church v. New York Elev. R. R. Co., 21 App. Div. (N. Y.) 47, (1897). Where the Injury results from the fact that the company, without legislative authority, located its yard and dumping ground near the plaintiff's tract, from which yard ashes and cinders fly into plaintiff's windows when open, past or rental damages are allowable, but not fee damage. Emigrant Mission v. Brook- lyn Elev. R. R. Co., 20 App. Div. (N. Y.) 596, (1897). See also Innes V Manhattan Ry. Co., 3 App. Div. (N. Y.) 540, (1896); McBlroy v. Manhattan Ry. Co., 6 App. Div. (N. Y.) 367, (1896); Stuyvesant v. New York Elev. R. R. Co., 4 App. Div. (N. Y.) 159, (1896). A judgment for past and fee dam- ages should provide that, upon pay- ment of same, a release shall be executed. Kissam v. Brooklyn Elev. R. R. Co., 86 Hun 598, (1895). As to the liability of a railroad 532 THE LAW OF STREET EAILWAYS. [§201. § 201. Rights of purchasers — One who purchases subse- quent to the erection, of the road may maintain an action to restrain its operation or for damages for the invasion of the ease- ments caused thereby. ^^^ So an action at law may be maintained by a purchaser, although he paid a diminished price for the prop- erty on that account f^"^ and in such an action a recovery may be allowed for the loss of rental value during the time covered by an unexpired lease which was executed before he purchased, but after the road was built.^^^ The fact that he purchased and erected buildings after the construction of the railroad, if before con- demnation of his easements, will not prevent his recovery of damages to the same extent as if he had built prior to the con- struction of the road, if he takes proper care to avoid annoy- ances incident to its existence and operation.^^* Evidence that the plaintiff is in possession of the abutting property under a recorded deed, claiming a fee, is sufficient proof of his right to company for a loss in rental values of abutting property caused by the building of its structures, under the direction of the state acting through a commission appointed by legislative act, see Welde v. New York & Harlem R. R. Co., 168 N. Y. 597, (1901). 221 ^Werfelman v. Metropolitan Ry. Co., 11 N. Y. Supp. 66, (1890); Johnson v. Manhattan Ry. Co., 11 N. Y. Supp. 68, (1890); Whitlock v. Manhattan Ry. Co., 11 N. Y. Supp. 955, (1890); Minton v. New York Elevated R. R. Co., 130 N. Y. 332, (1891); Sterry v. New York Elevated R. R. Co., 129 N. Y. 619, 29 N. E. Rep. 68, (1891); Pappen- heim v. Metropolitan Elevated Ry. Co., 128 N. Y. 436, 28 N. E. Rep. 518, (1891). One who purchases during the pendency of injunction proceedinga against a company, should not be joined as a complainant. The con- veyance defeats the grantor's right to an injunction and leaves him simply the right to recover the damages which he has suffered prior to the conveyance. Flammer V. Manhattan Ry. Co., 56 App. Div. (N. Y.) 183, (1900). Where during the pendency ot proceedings for injunction and dam- ages, the plaintiff conveys the fee, his right to an injunction is lost, but he may proceed for damages. Mooney v. New York Elev. R. R. Co., 13 App. Div. (N. Y.) 380, (1897). See Pope v. Manhattan By. Co., 79 App. Div. (N. Y.) 583, (1903). --•- Werfelman v. Manhattan Ry. Co., supra; Whitlock v. Manhattaa Ry. Co., supra; Korn v. Manhattan Elevated Ry. Co., 15 N. Y. Supp. 10, (1891). ^'^ Werfelman v. Manhattan Ry. Co., supra; Johnston v. Manhattan Ry. Co., supra; Whitlock v. Man- hattan Ry. Co., supra; Barrett v. Manhattan Ry. Co., 18 N. Y. Supp. 71, (1892). ^'^ American Bank Note Co. v. New York Elevated R. R. Co., 13 N. Y. Supp. 626, (1891). § 202. J ELEVATED EAILEOADS. 3B3 the easements, to maintain an action for an injunction and dam- ages, especially where it appears that the defendant has com- menced proceedings to acquire title to the easements by condemna- tion.""' But a subsequent purchaser from a city of property abiitting on a street occupied by an elevated railroad, for which the local authorities have given their consent, takes with knowl- edge of the grant and holds subject to the use of the street for that purpose. ^^* So a license given by a former owner to construct and operate, when acted upon by the company before he parts with his title, is an irrevocable abandonment of his ease- ments, which will defeat an action by his vendee for damages subsequent to his purchase.^^^ The fact that a plaintiff did not own the property at the time of the commencement of the action will not bar his recovery, as the right of action for injuries sus- tained while he had the title was personal to him, and did not pass with the title from him.^^^ AVhere the plaintiff dies pending suit, and the action is revived and prosecuted to judgment by his executors under a will subsequently adjudged invalid as a dispo- sition of his real estate, a purchaser at judicial sale may maintain an action against the company, to which the former unauthorized payment to the executors will be no bar.^^^ § 202. Remainder-men — Under section 1665 of the Code of Civil Procedure, giving a remainder-man the right to bring an action founded on an injury done to the inheritance, notwith- standing an intervening estate for life or years, his remedy for depreciation in market value is not suspended during the prior estate. The measure of hisi damages is the difference in the market value of the remainder before and after the construction ™ Werfelman v. Manhattan Ry. true of an unrecorded release of Co., supra; Johnston v. Manhattan easements appurtenant to the abut- Ry. Co., supra; Whitlock v. Man- ting property. Ward v. Metropol- hattan Ry. Co., supra. itan Elev. R. R. Co., 152 N. Y. 39, ™Herzog v. New York Elevated (1897). R. R. Co., 14 N. Y. Supp. 296, '^ Porter v. Metropolitan Ry. Co., (1891). 120 N. Y. 284, 24 N. E. Rep. 454, "•"Hoch V. Manhattan Ry. Co., 13 (1890). N. Y. Supp. 633, (1891); dlstin- ==• Mitchell v. Metropolitan Ele- guishing Wiseman v. Lucksinger, vated Ry. Co., 56 Hun. 543, 9 N. Y. 84 N. Y. 31, (1881). The same is Supp. 829, (1890). 334 THE LAW OF STREET EAILWAYS. [§ 203. of the road, and, both the tenant for life and the remainder-man being parties,'^^" the damage to the whole fee may be apportioned between them.^^^ §203. Action by lessor — The construction of an elevated railroad in a city street, without having acquired the easements will always be closely related to and deducible from the damage to the present estate. If the present estate had been Injured to a given extent in rental value and in sell- ing price, buyers would give pro- portionally less for the future es- tate if it were exposed for sale. In practice the law will provide a convenient and substantially just method of ascertaining the re- mainder-man's measure of damage, by taking what would be the dam- age to the whole fee, if the prop- erty were owned in fee simple, and apportioning such amounts be- tween the life-tenant and re- mainder-man, according to the an- nuity tables. This method will be adopted in the present case. A portion of the compensation for the total, permanent damage to the fee will be paid to the tenant by the curtesy. The balance of total compensation must, at some time, be paid to the person or per- sons legally entitled thereto; otherwise the defendant would be enabled, by reason of the exist- ence of an outstanding' life-estate, to confiscate a large portion of the value of the fee." To the same effect, see Korn v. New York EUe- vated Ry. Co., 15 N. Y. Supp. 10, (1891) ; Thompson v. Manhattan Ry. Co., 130 N. Y. 360, 29 N. B. Rep. 264, (1891), affirming 8 N. Y. Supp. 641, (1890) ; Mortimer v. Man- hattan Ry. Co., 8 N. Y. Supp. 536, (1890). See also Conkling v. Man- hattan Ry. Co., 12 N. Y. Supp. 846, (1890). '"'Ante sec. 192. "^ Thompson v. Manhattan Ry. Co., 15 Daly 438, (1889). Here two cases are reported together. The plaintiff in the first action was a tenant by the curtesy, while the plaintiffs in the second were remainder-men, entitled to the premises in fee simple upon the death of their father, the plaintiff in the first case. The court held that the remainder-men were entitled to maintain the ac- tion. Larremore, Ch. J., delivering the opinion of the court, states among others the following rea- sons for the decision: "There can be no question but that a vested remainder is 'property' under the ordinary as well as any legal sense of the term. It may be bought and sold with the same freedom as present estates in land. It may be devised by will and, in default thereof, will pass to the remainder- man's heirs. All the essential in- cidents of 'property' attach to it, and it is unquestionably 'property' within the meaning of the consti- tution. Before the erection of the elevated road, the plaintiffs could have disposed of their vested re- mainder at a certain price. They could dispose of it now, but at a reduced price. The difference in market prices of such remainder, before and since the laying out of the road, represents the damage done to the plaintiffs' property and the injury to the Inheritance. This may be at times a difficult thing to arrive at In the concrete, but it § 204.J ELEVATED KAILBOAIAS. 335 therein of an abutting owner, if it diminishes the rental value of his property, is an injury to the inheritance, and, although the owner subsequently leases his premises, he may maintain, and has the exclusive right to maintain, an action for the damages sustained by the diminution in the rental value caused by the construction and operation of the road during the period in which the premises were in the actual occupation of tenants under the lease. Upon the death of the lessor, intestate, the right to dam- ages accming after his death vests in his heirs instead of his administrator.^'^ But where the owner dies testate, his executors and trustees do not occupy the relation of purchasers, but suc- ceed, in behalf of the beneficiaries, to the rights of the abutter and may recover damages in their trust capacity.^'* § 204. Action by lessee. — A tenant holding under a lease executed after the construction of the road cannot ordinarily maintain an action for an injunction and damages, or for past damages, accruing during the term of his lease ; but if, either as lessee or assignee, he holds under a lease containing a provision that at its expiration the landlord might buy the tenant's improve- ments or give him a renewal of the lease, he may after the expiration of the original term, during which the property was '^'^ Kernochan v. New York Ele- In an action for damages to the vated R. R. Co., 128 N. Y. 559, rental value of abutting property, 29 N. E. Rep. 65, (1891), in which the existence of a lease thereof, the court intimates that where a executed after damages were in- lease was executed prior to the flicted, is wholly immaterial. Stern- construction of the road, the lessee berger v. Manhattan Ry. Co., 16 N. is the party entitled to maintain Y. Supp. 539, (1891); Nooney v. the action; Sterry v. New York New York Elevated R. R. Co., 17 Elevated R. R. Co., 129 N. Y. 619, N. Y. Supp. Ill, (1892). Damages 29 N. E. Rep. 68, (1891); Hine v. to the rental value may be allowed, New York Elevated R. R. Co., 128 notwithstanding existing leases of N. Y. 571, 29 N. E. Rep. 69, (1891), the property were executed more affirming 13 N. Y. Supp. 510, than six years before the action. (1891); Werfelman v. Manhattan Kane v. Manhattan Ry. Co., 17 N. Ry. Co., 11 N. Y. Supp. 66, (1890); Y. Supp. 109, (1892); Suarez v, Mulford V. Metropolitan Elevated Manhattan Ry. Co., 15 N. Y. Supp. R. R. Co., 12 N. Y. Supp. 929, 224, (1891). (1891); Korn v. New York Ele- ==» Mortimer v. Metropolitan Ele- vated Ry. Co., 15 N. Y. Supp. 10, vated R. R. Co., 129 N. Y. 31, (1891); Mortimer V. Manhattan Ry. 29 N. E. Rep. 5, (1891), affirming Co., 129 N. Y. 81, (1891). 8 N. Y. Supp. 536, (1890), and 14 336 THE LAW OF STEEET EAILWAYS. [§ 205. improved and the road constructed, and after taking a new lease, maintain an action for damages and equitable relief, since, under such circumstances, the new lease is a. continuation of the old one and the tenant's title dates back to the execution, or to his acquisition, of the original lease.^^* A lessee is not entitled to perpetual injunction but only during the term of his lease.^'^ § 205. Right of trial by jury — When the only relief sought is a judgment for past damages, or where the plaintiff seeks to merge such a claim, acquired by assignment, in a demand for damage to the fee,^^® it is clear that, under the constitution and statutes of New York, the parties are entitled to a trial by jury; and it is equally clear that the right does not exist in cases in which the relief demanded is an unqualified injunction or a decree nisi. But in cases in which the prayer was broad enough to inchide an allowance for past injuries, which, although merely incidental, seem to have been involved in the finding of the total damage to the fee, some of the lower courts held that, upon the issue as to past damages, the parties were entitled to a jury trial.^^' But by several decisions, in which the courts jealously guard their chancery jurisdiction, the rule is well settled that the parties are not entitled as a matter of right to have an issue framed and sent to a jury to ascertain the amount of past dam- ages, although that question is incidentally involved in ascer- taining the amount of damages to be awarded in an action for injunctive relief. ^^* N. Y. Supp. 952, (1891); Mortimer """Ante sees. 189, 198. V. Manhattan Ry. Co., 57 N. Y. ^' Libmann v. Manhattan Ry. Co., Super. 509, (1890). 59 Hun 428, (1891). ^' Kearney v. Metropolitan Ele- ^ Johnston v. Manhattan Ry. Co., vated R. R. Co., 129 N. Y. 76, 16 N. Y. Supp. 434, (1891); Lynch 29 N. E. Rep. 70, (1891), affirming v. Metropolitan Elevated By. Co., 13 N. Y. Supp. 608, (1891); Wit- 129 N. Y. 274, (1891); Shepard v. mark v. New York Elev. R. R. Co., Manhattan Ry. Co., 131 N. Y. 215, 49 N. Y. 393, (1896); Child v. New (1892); Bach v. New York Elevated York Elev. R. R. Co., 89 App. Dlv. R. R. Co., 14 N. Y. Supp. 620, (N. Y.) 598, (1904). (1891). Notwithstanding the decis- '""Welch v. New York Elevated ion In Lynch v. Metropolitan Ble- R. R. Co., 12 N. Y. Supp. 545, vated Ry. Co., supra, the court of (1891) ; Storms v. Manhattan Ry. appeals was asked in Shepard v. Co., 77 App. Div. (N. Y.) 94, (1902). Manhattan Ry. Co., supra, to re- §206.] ELEVATED EAILEOADS. § 206. Limitation of action — acquiescence and estoppel. — The righli of abutting owners to damages, for an impairnlent of their easements in the street, is predicated upon the coustitu- verse the lower court, which had decided that the right to a jury trial Is not conferred by sec. 970 of the code of civil procedure as amended in 1891. This was an ac- tion for injunction with an accom- panying demand for incidental re- lief by way of past damages. The section, as amended, contained the following provision: "Where a party is entitled by the constitu- tion or express provision of law to a trial by jury of one or more issues of fact, or where one or more" questions arise on the plead- ings as to the value of property, or as to the damages which a party may be entitled to recover, either party may apply on notice at any time to the court, for an order directing all such Issues or ques- tions to be distinctly and plainly stated for trial accordingly." Said Gray, J., delivering the opin- ion of the court, p. 223: "I think that this section never did apply to actions of a purely equitable nature, as are these, and that the amendment did not make It appli- cable. This conclusion seems logi- cal and inevitable upon a careful consideration of its connection with the other sections, as well as from its reading. If this section now applies to purely equitable ac- tions and creates a right in the party to have a trial by jury of questions relating to the amount of damages, then the power of the court in equity is materially shorn, and in a respect which is funda- mental; for the verdict, which the jury may render, would be, by the section, made conclusive in the equity action, and thus we would have a proceeding quite different from what was formerly a mode of Inquiry to aid and to inform the conscience of the court in proceed- ing to assess the damages. It would no longer be permitted to disregard the verdict, if against its conscience, and to render a decree contrary to it, but would be com- pelled to accept it. Only legal er- rors could be availed of to oppose the verdict. In an action upon the equity side of the court. In which the cause of action is one mainly and primarily for equitable relief, and where the recovery of damages is incidental to the main relief to be granted, shall we hold. In the absence of unmistakable language, that the legislature has deprived the court of that part of its ancient jurisdiction which authorized it to adjudge such incidental relief in damages as it thought proper, or to withhold it? I think it clear that we should not. I do not think that any of the powers vested in courts under the constitution should be taken away by implication. Yet such would be the result if we af- firm the orders below. We should have to imply a legislative inten- tion, from the interpolation of the words in the section, to take away some of the equity powers hereto- fore possessed by the court. The amendment does not convey such an intention, ex proprio vigore, and to attach to it a meaning which would deprive the court of a power so Important, and which courts of equity jurisdiction have so long possessed, would be contrary to sound principles of statutory con- struction. To authorize and justify 338 THE LAW OF STEEiST EAILWAVS. [§ 206. tional guaranty, that no "person shall be deprived of life, liberty or property, without due process of law, or, if his property is taken for public iise, without just compensation ; and it necessarily follows that so long as a person continues to be the owner of property, and liable to be injured in respect thereto by the unlawful acts of others, he is entitled to invoke the protection of the fundamental law, without regard to the lapse of time that may occur before the commencement of legal proceedings, pro- viding the remedy is claimed within the statutory period of lim- itation applicable to his legal right, or before adverse possession has barred his title to the property injured.^^® The abutter's right to maintain an action for past damages is limited to the period of six years before commencing suit;^*° but this limitation cannot include the time during which, on account of repairs or for any other reason, the property was not in a condition to be occupied or rented.^*^ His right to maintain an action in equity to enjoin the maintenance and operation of the railway, and to recover damages to the inheritance because of the permanence of the structure, is not barred by the ten years limitation contained in section 388 of the New York code of civil procedure, but wiU con- tinue until the adverse possession ripens into title, unless he a construction of such destructive (1873); Colrick v. Swinburne, 105 tendency, we should have language N. Y. 503, (1867) ; Tallman v. Met- clearly and unmistakably evldenc- ropolitan Elevated R. R. Co., 121 ing that as the purpose of the legis- N. Y. 119, 123, (1890). lative body." '""Galway v. Metropolitan Ele- See also Underhlll v. Manhattan vated Ry. Co., supra; Martin v. Ry. Co., 18 N. Y. Supp. 43, (1892), Manhattan Ry. Co., 63 Hun 350, containing an Interesting outline of (1892) ; Cornell v. New York Ele- the New York practice; Barrett v. vated R. R. Co., 37 N. Y. St. Rep. Manhattan Ry. Co., 18 N. Y. Supp. 624, (1891); Hamilton v. Manhat- 71, (1892); Eggers v. Same, 18 N. tan Ry. Co., 58 N. Y. Super. 17, Y. S^pp. 181, (1892); Cogswell v. (1890); Kearney v. Metropolitan New York, New Haven & Hartford Ry. Co., 14 N. Y. St. Rep. 854, R. R. Co., 105 N. Y. 319, (1887). (1888); Martin v. Manhattan Ry. ^'"'Galway v. Metropolitan Ele- Co., 63 Hun 350, (1892). vated Ry. Co., 128 N. Y. 132, 144, «" Martin v. Manhattan Ry. Co., (1891), citing Uline v. New York supra; Tallman v. Metropolitan C. & H. R. R. R. Co., 101 N. Y. Elevated Ry. Co., supra; Ottlnger 98, (1886) ; Arnold v. Hudson v. New York Elevated R. R. Co., 18 River R. R. Co.. 55 N. Y. 661, N. Y. Supp. 238, (1891). § 206.J ELEVATED EAILEOADS. 339 loses the right by some act constituting an estoppel.**^ To work an estoppel, the acquiescence must be with knowledge of the wrongful acts themselves and of their injurious consequences; it must be voluntary and not the result of accident, nor caused by physical, moral or legal necessity. It must last for an unreason- able length of time, so that it will be inequitable, even to the wrong doer, to enforce the peculiar remedies of equity against him after he has been suffered to go unmolested and there has been an apparent acquiescence in his conduct. Therefore, where it appears that the abutting owner intended to rely upon legal remedies for the redress of his rights, and had no intention to do otherwise than to claim from a court svich remedy as he might have the right to assert, no estoppel arises.^*^ The rule requiring promptness in soliciting an intervention of a court of equity is always addressed to the discretion of the court, and varies accord- ing to the situation of the parties, the nature of the relief '" Galway v. Metropolitan Ele- vated Ry. Co., supra. '" Delay in bringing suit, until an action against the company by other abutters has been decided, does not constitute such an ac- quiescence on the part of others delaying as will estop them from suing afterwards. Ode v. Manhat- tan Elevated Ry. Co., 56 Hun 199, 8 N. Y. Supp. 338, (1890). An abutting owner is not deprived of his right to compensation, as on the ground of acquiescence, by merely failing to interfere to pre- vent the erection of the railway and its subsequent use. Mattlage v. New York Elevated R. R. Co., 11 N. Y. Supp. 482, (1890). When an elevated railroad is being built, and an abutting owner merely forbids its construction and threatens liti- gation, but brings no action for a period of five years, and during that time rides upon the railroad paying his fare as other pas- sengers, his delaiy will not amount to an acquiescence in the construc- tion of the road so as to bar his right of action for damages that might result to him. Abendroth v. New York Elevated R. R. Co., 122 N. Y. 1, (1890) ; JDuyckinck v. New York Elevated R. R. Co., 125 N. Y. 710, (1891). No acquiescence short of twenty years will operate as a bar to an action for an injunction and alternative damages, unless by some act or omission the plaintiff has induced the company to make large expenditures or take some ac- tion on which an estoppel might be based. Knox v. Metropolitan Ele- vated Ry. Co., 58 Hun 517, (1890). In an action for damages, where it is set up as a defense that the plaintiff stood by, saw the work being done and did not object, rem- onstrate or interfere to prevent It, it is error to exclude evidence that the plaintlif protested against the defendant's acts at the time. Taber V. New York Elevated R. R. Co., 58 N. Y. Super. 579, (1890). 340 THE LAW OF STEEET RAILWAYS. [§ 207. demanded and the circumstances of the case.^''* To establish title by prescription, the adverse user for the period of twenty years must have been substantially the same. Therefore, where the encroachments upon the abutter's rights have been changed, enlarged and increased, from time to time within the period of prescription, his right to redress is not barred.^*^ §207. Previous offers for property — Upon the question of compensation for the appropriation of property in condemnation -" In a case brought in 1889, it appeared that plaintiff obtained title to his premises some time prior to 1878, during which year the defendant, without acquiring the easements or consents of the abutting owners, commenced and completed its road. The trial court found that the plaintiff saw the road from time to time while in the process of construction and oc- casionally took passage upon it; and that he had subscribed to a fund to pay counsel to prevent its erection, but prior to the com- mencement of the action made no protest and instituted no legal pro- ceeding to prevent its construction or operation. It was also found that after the action was com- menced the defendant instituted proceedings tO condemn the ease- ments, which were pending at the time of the trial. The court granted an injunction in the usual alternative ' form, which the court of appeals held not to be error. Galway v. Metropolitan Elevated Ry. Co., supra. Commenting upon the circumstances of this case, Ruger, Ch. J., delivering the opin- ion of the court, (p. 156), said: "The novelty of the questions pre- sented; the vast number of people who were suffering similar inju- ries; the importance of the pro- jected road for the public conven- ience, were all circumstances ad- dressed to the discretion of the court upon the question of laches, and presenting strong reasons why a strict rule should not be applied to the delay of the injured parties in seeking redress in this and sim- ilar cases." And on p. 152, commenting on the claim that the doctrine of es- toppel applied, he criticised the companies as follows: "The judic- ial annals of the state are filled with the history of the litigations which have sprung out of the ef- forts of the elevated railroad com- panies to appropriate the property of the citizens of New York to the benefit of such railroads without compensation. In view of these facts, it is idle to claim that such companies have been induced in any respect to continue their enter- prise in reliance upon the assumed acquiescence of the owners." ^"American Bank Note Co. v. New York Elevated R. R. Co., 129 N. Y. 252, (1891). The use of any part of the street, under a lawful warrant from the public authori- ties, on condition that compensa- tion be made to abutting owners, is not adverse to the abutting own- ers, and a right by the prescription cannot be based upon such occupa- tion and user; for it will be pre- sumed that an entry under such a grant was made in subordination to the rights of the adjacent propriet- 8 208. J ELEVATED RAILROADS. 341 proceedings, it is a unirersal rule that evidence of the price pre- viously offered the owner for the land taken is inadmissible; so, in an action for damages, it is error to admit evidence as to an offer to purchase the premises in question made to the owner, for the purpose of shoeing their value prior to the construction of the road.-" §208. Opinion evidence. — Formerly, the decisions left in doubt the question, as to whether or not mere opinion evidence is competent in ISTew York to show what the value of the property in question would have been if its easements had remained unim- paired. The obiter dicta in several cases decided by the supreme court tended to jiistify the inference that such evidence was considered admissible.^^^ Later decisions, however, both in the court of appeals and the lower courts, have established the rule that such evidence is clearly inadmissible. While it is proper and. indeed, necessary to prove what the value of the property would be with the easements unimpaired by the defendant's acts, that fact cannot be established by the opinions of so-called experts or of any other witnesses. But the opinions of qualified wit- nesses may be introduced to show the present value of the property and to prove its value when the obstruction was placed in the street; and in order to determine to what extent the value of the property has been affected, it is proper to admit evidence of suxih facts relating to the property on the line of the road and other property similarly situated in the vicinity, as will afford the data for measuring the depreciation in rental and fee values of the property in question. This rule permits the parties ors. American Bank Note Co. v. ground for reversal of the judg- New York Elevated R. R. Co., 13 ment, as affecting the recovery of N. Y. Supp. 626, (1891). damages, because it is merely Inci- '^'" Lawrence v. Metropolitan Ele- dental to the right to relief by in- vated Ry. Co., 8 N. Y. Supp. 326, junction, or as affecting the amount (1890). Compare Kuh v. Metro- to be paid to arrest the injunction, politan Elevated R. R. Co., 58 N. Y. Lawrence v. Metropolitan Elevated Super. 138, (1890). But, in an ac- Ry. Co., 16 Daly 501, 12 N. Y. tion in which an injunction is Supp. 546, (1891) ; Hin^ v. Manhat- awarded, and also damages for past tan Ry. Co., 132 N. Y. 477, (1892). injury, the admission of proof of an "" Rochester & Syracuse R. R. offer for the property, as evidence Co. v. Budlong, 10 How. Pr. 289, of the value of the fee, is not (1854) ; Hine v. New York Elevated 3i2 THE LAW OF 8TBBET BAILWAYS. [§ 208. to introduce evidence of all the facts from which the amount of damages may be inferred, prominent among which, of course, are the former and present values. But it excludes mere opinion evidence as to what the property would be worth if the road had not been built. This may depend very largely upon the operation of at least two potent factors, i. e., J-he natural fluct- uation in values, due to general causes, and the effect of the presence of the road, which may be injurious or beneficial. The damages are rarely, if ever, accurately measured by the differ- ence between former and present values. Special benefits to the property must be set off against special damages. The effect upon the value of the property of causes which ai'e wholly inde- pendent of the road must also be considered; but the conclusions of witnesses, reached by reasoning from cause to effect upon such problems as these, cannot be admitted in lieu of the facts upon which their opinions might be based. It is for the court or jury to determine the amount of the damages, and for the witnesses to state facts which will aid in performing that duty. But the witnesses will not be permitted to substitute their judgment or opinion for the decision of the tribunal before which the cause is tried.^*^ Where experts have given evidence as to their opinions of the value of certain real estate, the testimony of the owners of the property, though not experts, is admissible as to the value placed by them on their respective parcels.^** It is not proper to R. R. Co., 36 Hun 293, (1885) ; Ken- Ry. Co., 120 N. Y. 624, (1890) ; the kele V. Manhattan Ry. Co., 55 Hun last two cases as to the form of 398, (1890). objection to save the exception; '"Roberts v. New Yorlc Elevated HcGean v. Manhattan Ry. Co., 117 R. R. Co., 128 N. Y. 455, 473, M. Y. 219, (1889) ; Suydam v. New 28 N. E. Rep. 486, (1891) ; McGay York Elevated R. R. Co., 19 N. T. V. Manhattan Ry. Co., 16 N. Y. Supp. 49, (1892); Woolsey v. New Supp. 155, (1891) ; Wallach v. York Elevated R. R. Co., 134 N. Y. Same, 16 N. Y. Supp. 156, (1891); 323, 30 N. E. Rep. 387, (1892). Delafleld v. Same, 16 N. Y. Supp. Compare Roosevelt v. New York 157, (1891) ; Doyle v. Manhattan Elevated R. R. Co., 57 N. Y. Super. Ry. Co., 128 N. Y. 488, 28 N. B. 438, (1890); Kernochan y. New Rep. 495, (1891) ; Gray v. Man- York Elevated R. R. Co., 13 N. Y. hattan Ry. . Co., 128 N. Y. 499, Supp. 624, (1890) ; Jefferson v. New 28 N. E. Rep. 498, (1891) ; Ker- York Elevated R. R. Co., 11 N. Y. nochan v. New York Elevated Supp. 488, (1890); Moore v. Same, R. R. Co., 128 N. Y. 559, (1891); 12 N. Y. Supp. 552, (1890). Crawford v. Metropolitan Elevated '" Carter v. New York Elevated § 209.J ELEVATED EAILEOADS. 343 permit a real estate broker, who has testified that a better class of tenants was obtainable before the building of the road than afterwards, to state, as a matter of opinion, that the change in the character of the tenants was due to annoyances caused by the operation of the road;^''" nor to admit the opinion of a witness as to the best use to which the plaintiff's property could have been put if the road had not been constructed f^^ nor the opinion of a real estate broker as to the effect of the operation of a rail- way on the value of property. ^^^ § 209. Other questions of evidence — Of the numerous ques- tions of evidence not already mentioned, which have been passed upon in the elevated railroad cases, some are of sufficient import- ance to justify a brief reference to the points decided. Thus, it R. R. Co., 57 N. Y. Super. 279, As to the qualifications of wlt- (1889). An owner of real estate is nesses called to express opinions, not bound by the declarations of his predecessor in title as to the value of the property. Mercadante v. Manhattan Ry. Co., 82 Hun 555, (1894). ""Peyton v. New York Elevated R. R. Co., 17 N. Y. Supp. 244, (1892). ■^i Gray v. Manhattan Ry. Co., 128 N. Y. 499, (1891). The testimony of an expert, showing the contin- uous advance in the selling price of neighboring property and no de- crease in the value, will not sustain a finding of a diminution in value of the plaintiff's property by taking his easements of light, air and ac- cess. Cunningham v. Manhattan Ry. Co., 13 N. Y. Supp. 622, (1891) ; Benson v. Same, 13 N. Y. Supp. 957, (1891). The statement by a wit- ness of the reasons assigned by prospective purchasers for not tak- ing property in the street in ques- tion is mere hearsay. Manning v. New York Elevated R. R. Co., 9 N. Y. Supp. 522, (1890). •" Sillcock V. New York Elevated R. R. Co., 19 N. Y. Supp. 476, (1892). see Livingston v. Metropolitan Ele- vated Ry. Co., 18 N. Y. Supp. 203, (1892). "Testimony as to what the value of real property has been, is and will be, and what the damage. If any, is done to it by the construc- tion of a railroad, is, in the nature of the case, almost entirely a mat- ter of opinion, about which the judgment of competent men will to some extent vary. As to these matters the opinion of experts is admissible." Fox v. Chicago & South Side Ry. Co., 68 111. App. 417, (1896) ; Metropolitan West Side Co. V. White, 166 111. 375, 46 N. E. Rep. 978, (1897). See also Gordon v. Kings Co. Elev. Ry. Co., 23 App. Div. (N. Y.) 51, (1897). An expert without attempting to show the exact amount of Increase may testify that there would have been an increase In the value of the land if no railroad had been con- structed. Remsen v. Metropolitan Elev. Ry. Co., 9 App. Dlv. (N. Y.) 533, (1896). See also Jefferson v. New York Elev. R. R. Co., 132 N. Y. 483, (1892); Schmidt v. New York Elev, 344 THE LAW OF STREET EAILWAYS. [§ 209. has been held that in an action for an injunction and damages, on the question as to what the defendant should pay in order to avoid the injunction, testimony is admissible as to the value of the property, including the easements in the street, which would give the property the use of the whole street above the surface,^''^ that, in such an action, the finding that the railroad cuts ofF the light from plaintiff's premises, and that dirt and cinders fall thereon from passing trains, is supported by testimony that similar results occur in the case of other property in like situa- tion f"'^ that testimony, that other owners of property in the neigh- borhood of plaintiff's premises had difficulty in renting their flats after the road was built, is competent as tending to prove the imiform operation of a general cause, and that plaintiff's loss of rents was not attributable to his neglect f"^ that evidence as to the impairment of rental value is not rendered incompetent by the fact that the plaintiff himself occupies the premises;^''" that it is proper to show injury to business as reflecting upon the depreciation in rental value f^'^ that, though technically erroneous, the rejection of evidence as to the diminution of the rental value of buildings near plaintiff's, but not on the line of the road, is not gi'ound for reversal, where both parties during the early stages of the trial assented to a ruling excluding evidence of this character f'"^ that testimony of a witness as to what rent he paid for premises in an adjacent street, but not on the lind of the rail- road in question, is properly rejected, where it has not been shown under what circumstances he occupied the premises nor why the landlord was induced to receive that amount of rent f^^ R. R. Co., 2 App. Div. (N. Y.) 481, Ry. Co., 9 N. Y. Supp. 710, (1890) ; (1896); Flynn v. Kings Co. Elev. Hine v. New York Elev. R. R. Co., Ry. Co., 3 App. Div. (N. Y.) 51, 149 N. Y. 154, (1896). (1897); Gordon v. Kings Co. Elev. ==» Woolsey v. New York Elevated Ry. Co., 23 App. Div. (N. Y.) 51, ^ ^ ^o., 9 N. Y. Supp. 133, (1890). (l^^'^)- '"■'Drucker v. Manhattan Ry. Co., «=Korn V. Metropolitan Elevated 5^ n. Y. Super. 429, (1885). Ry. Co., 13 N. Y. Supp. 518, (1891). -Johnson V. Manhattan Ry. Co., '"^ane v. New York Elevated 16 N. Y. Supp. 434, (1891); Cogs- R^. Co., 125 N. Y. 164, 29 N. E. well V. New York, New Haven & ^^ep. 278 (1891), affirming 6 N. Y. Hartford R. R. Co., 105 N. Y. 319, Supp. 526, (1889). 11 N. E. Rep. 518, (1887). ""Thompson v. Manhattan Ry. "=Kuh V. Metropolitan Elevated Co., 8 N. Y. Supp. 641, (1890). § 209. J ELEVATED EAILEOADS. 345 that, where plaintiff's evidence tended to show that shortly after the construction of the road the rental value of the property depreciated, and evidence offered by the defendant tended to establish the fact that the falling oft' of the rents was due to the removal of the grocery trade, which had become central in the street in question, to another locality, it is for the jury to say to which cause the difference in the rent of the property was due f^^ that evidence of what it would have cost to erect dwelling houses on the lands in question, and what they would have rented for if they had been built with the road there, and what they would have rented for had the road not been constructed, is inadmissible as speculative and contingent ;^''^ that evidence as to what the rental value would have been several years after the road was built, if it had not been built, is inadmissible,, as the opinion called for would be wholly speculative f''' that where it appears that the rental value of plaintiff's premises has increased since the construction of the road, the contention that, but for its pres- ence, a nuich larger rental could have been obtained, cannot be sustained by evidence of an increase of rental values in neighbor- ing streets, where such increase is due to facilities afforded by the proximity of the railroad;""^ that the finding of damages for the de2>reciation of the rental value of plaintiff's premises is not sus- tained, in the absence of evidence of the difference in rentals ™ Moore v. New York Elevated property has not increased in the R. R. Co., 8 N. Y. Supp. 769, 24 same proportion as that of prop- Abb. N. C. 74, (1890). As to the erty in the side streets is admis- sufflclency of evidence to show de- slble, and may be considered with preciation In rental value, see Mc- other evidence, in determining Gean v. Manhattan Ry. Co., 117 N. whether the premises in question Y. 219, 22 N. E. Rep. 957, (1889). have Increased in value to the same ="'Tallman v. Metropolitan Ele- extent as they would have done vated Ry. Co., 121 N. Y. 119, 23 but for the presence of the road. N. B. Rep. 1134, (1890). Becker v. Metropolitan Elevated """Kernochan v. New York Ele- Ry. Co., 131 N. Y. 509, 30 N. E. vated R. R. Co., 128 N. Y. 559, Rep. 499, (1892), affirming 14 N. Y. 29 N. B. Rep. 245, (1891) ; Roberts Supp. 312, and distinguishing Bohm v. New York Elevated Ry. Co., 128 v. Metropolitan Elevated R. R. Co., N. Y. 455, (1891). See also sec. 129 N. Y. 576, (1892). See also 208, ante, note. Sexton v. New York Elevated R. R. "'Brush v. Manhattan Ry. Co., Co., 18 N. Y. Supp. 188, (1892); 17 N. Y. Supp. 540, (1892). Bvi- Levin v. New York Elev. R. R. Co., dence that the value of abutting 165 N. Y. 572, (1901). 346 THE LAW OF STEBET EAILWAYS. [§ 209. before and after the construction of the road, by proof of such difference in the case of houses of different sizes on other streets, the rent of which at the times in question was not as great as that of plaintiff's property;^®* that, in an action for damages, where it appeared that the rental value of plaintiff's premises had decreased since the construction of the road, instead of having increased, the court properly excluded evidence of a decrease in rental value of a particular piece of property on the same street, in plaintiff's vicinity f^^ that an interrogatory to a witness, who is the owner of a stable adjacent to the premises in question, call- ing upon him to state how much, in his opinion, the railroad had damaged his stable, although not competent as evidence in chief, because foreign to the issue and a mere matter of opinion,. may be proper on cross-examination f^^ that an objection to a question, which calls upon a witness to state what in his opinion the present value of the plaintiff's premises would have been if his street easements had not been impaired by the railroad, is sufficient if placed upon the ground that it is "incompetent and coni- jectural;"^®^ that there is no substantial error in admitting evi- dence of the rental value of property sustaining the same relation to defendant's structure as the plaintiff's land, or general evidence of the manner in which the property in the vicinity has been improved and occupied, or a photograph of a building on the comer directly opposite plaintiff's property;^** that it is not competent to show injuries to other property on the same avenue but not in any way connected with the plaintiff's property;^'* =** Cunningham v. Manhattan Ry. Jamieson v. Kings Co. Blev. Ry. Co., 13 N. Y. Supp. 622, (1891). Co., 147 N. Y. 322, (1895). =■" Brush V. Manhattan Ry. Co., ^"Malcolm v. Metropolitan Ele- supra. Evidence of the value of vated Ry. Co., 13 N. Y. Supp. 283, specific pieces of property is Inad- (1891). missible. Only the general course '"Jefferson v. New York Ele- of values of neighboring property vated R. R. Co., 132 N. Y. 483, can be introduced. Douglas v. New (1892). York Elev. R. R. Co., 45 App. Dlv. "»Galway v. Metropolitan Hie- (N. Y.) 596, (1899). Nor Is It per- vated Ry. Co., 13 N. Y. Supp. 47, missible to call the owners of prop- (1890) ; Myers v. Metropolitan Ele- erty in the vicinity and prove in vated Ry. Co., 19 N. Y. Supp. 223, each instance for what the partlcu- (1892) ; Hunter v. Manhattan Ry. lar premises rented before and Co., 141 N. Y. 281, (1894). after the construction of the road. '^ Sixth Ave. R. R. Co. v. Metro- §§ 210, 211. J ELEVATED EAILKOABS. '■ii'i that it is error to admit evidence of the improper conduct of the men in defendant's service, or of other annoyances resulting from the operation of the railway, not affecting the light, air or ap- proach to the property, or relating to any interference arising from the acts of the defendant in the construction of the railway.''™ § 210. Taxation of the road and fixtures. — The founda- tions, columns and superstructure of an elevated railroad are included in the words "lands and real estate" as used in the statutes in regard to taxation, and the person or corporation owning them may be assessed accordingly.^^^ § 211. Injuries to persons on street by falling objects. — An elevated railroad company has a lawful right to use fire in the running of its engines, and can be held liable for accidents occasioned thereby, only upon the ground of negligence; but in the use of such agencies it is charged with a high degree of care, and is bound to adopt the best devices in known use to prevent injury to others.^^^ politan Elevated Ry. Co., 56 Hun affirming 19 Hun 460, (1879). See 182, (1890). It is improper to ad- Brooklyn Elev. R. R. Co. v. Brook- mit as evidence of the damage done lyn, 11 App. Div. (N. Y.) 127, the amount that an adjoining lot (1896); People v. Barker, 152 N. owner had accepted in satisfaction Y. 417, (1897). The term real of damage done to his tract. Lake property is broad enough to in- Roland Elev. Ry. Co. v. Weir, 86 elude the ties, sleepers, rails and Md. 273, 37 Atl. Rep. 714, (1897). spikes of surface roads. Citizens' See also Lazarus v. Metropolitan Pass. Ry. Co. v. Pittsburgh, 104 Elev. Ry. Co., 5 App. Div. (N. Y.) Pa. St. 522, (1883) ; Appeal of 398, (1896); Lyons v. New York North Beach Mission R. R. Co., 52 Elev. R. R. Co., 26 App. Div. (N. Y.) Cal. 499, (1867) ; People v. Cas- 57, (1898). sity, 46 N. Y. 46, (1871); New ™ Sixth Ave. R. R. Co. v. Metro- Haven, Fair Haven & Westville R. politan Elevated Ry. Co., supra. As R. Co. v. "Warren, 38 Conn. 422, to the admission of Improper evl- (1871); Troy & Lansingburgh R. dence and its effect upon the whole R. Co. v. Kane, 9 Hun 506, (1877) ; judgment, see Gray v. Manhattan Railroad Co. v. Morrow, 87 Tenn. Ry. Co., 128 N. Y. 499, (1891); 406, (1889). Nordlinger v. Manhattan Ry. Co., "^ Burke v. Manhattan Ry. Co., 77 Hun 311, (1894). 13 Daly 75, (1885). *" People V. Commissioners of Where it appeared that a stream Taxation, 82 N. Y. 459, (1880), of hot ashes and red-hot cinders 348 Till; LAW OF STEEET IJAlLWAYS. [§212. § 212. Unguarded excavations in the street. — A grant ob- tained by a corporation from the public autborities, to make the excavations in the streets necessary for its structures, will not came down from the locomotive and that some of the cinders were about the size of a marble, injuring a passerby on the street below, the court held it to be such an unusual occurrence as to raise an inference that the engine was not properly constructed or managed and that proper contrivances in practical use had not been adopted to pre- vent such accidents, and, therefore, that the issue of negligence should have been submitted to the jury. Ashley v. Manhattan Ry. Co., 13 Daly 205, (1885). For an instruc- tion as to the duty of the company to build a shield or screen under its railroad for the protection of persons in the street below from falling objects, see Goll v. Man- hattan Ry. Co., 57 N. Y. Super. 74, (1889), affirmed in 125 N. Y. 714, (1891), in which it was held, in substance, that the company dis- charged its duty to the general pub- lic if it adopted means "reasonably adequate and safe," although not "the best and most select safe- guards which human skill and in- genuity from time to time have invented and brought into use to prevent accidents." But in an ear- lier case, decided by the court of common pleas, it was held that the company was bound to use "the most approved means that science and skill have invented to prevent the falling from its engines into the street below its tracks," and not simply those in general use; and that where, because of its fail- ure to use such means. Are dropped upon a horse on the street below causing It to run away and injure a foot passenger, the company was liable for the damages austained. Lowery v. Manhattan Ry. Co., 12 Daly 431, (1884). The same rule is applied in cases growing out of injuries resulting from other falling objects. ■ Manson V. Manhattan Ry. Co., 55 N. Y. Super. 18, (1887); Maher v. Man- hattan Ry. Co., 53 Hun 506, (1889), holding that "it was the duty of the defendant, in the exercise of its franchise, to use all necessary caution, care and diligence to pre- vent injury to persons or property." See also Searles v. Manhattan Ry. Co., 101 N. Y. 661, (1886); Weid- mer v. New York Elevated R. R. Co., 114 N. Y. 462, (1889). In the latter case it was decided that the mere falling of a hot coal, not as large as a pin head, from an engine, injuring plaintiff's eye, was not suf- ficient proof of negligence to au- thorize the jury to find that the defendant negligently used "a loco- motive improperly designed, de- fectively constructed, out of repair, or negligently operated." But see Ruppel v. Manhattan Ry. Co., 13 Daly 11, (1884), in which it was held that the evidence of the emis- sion of "a quantity of sparks so large and so brilliant that the atten- tion of the witness, who had fre- quent opportunities for observation, was immediately attracted," was sufficient to make a prima facie case of negligence against the de- fendant. See also Kister v. Man- hattan Ry. Co., 40 App. Div. (N. Y.) 441, (1899); McNaier v. Man- hattan Ry. Co., 46 Hun 502, 4 N, Y. Supp. 310, (1887) ; holding that the falling of a hot cinder \ "about the size of a pigeon egg, some §212.] ELEVATED EAILKOADS. 349 protect it from the consequences of damages sustained by travelers who are injured because of its failure to provide proper safe- guards against accident. And where the nature of the work itself is such as to render the street dangerous for purposes of public travel, the company cannot escape responsibility by inter- posing a contract with a so-called independent contractor between half inch broad and somewhat longer," was proof sufficient on the subject of defendant's negli- gence to send the case to the jury; Werner v. Brooklyn Elev. R. R. Co., 11 App. Div. (N. Y.) 86, (1S96), where a girl was burned to death by the falling of coals one and one-half inches in size; Treanor V. Manhattan Ry. Co., 16 N. Y. Supp. 536, (1891), involving injuries caused by shoveling dirt and refuse from drip-pans under defendant's track into carts below; Volkmar v. Manhattan Ry. Co., 9 N. Y. Supp. 708*, (1890); Horseman v. Manhat- tan Ry. Co., 10 N. Y. Supp. 105, (1890), injuries caused by the fall- ing of crow bar used by an em- ployee repairing track; McGee v. Boston Elev. Ry. Co., 187 Mass. 569, (1905), where injuries were sus- tained by the falling of snow from the elevated structure. The falling of a bolt from the structure is prima facie evidence of negligence. Metropolitan West Side Ry. Co. v. McDonough, 87 111. App. 31, (1899); Volkmar v. Man- hattan. Ry. Co., 134 N. Y. 418, (1892); Hogan v. Manhattan Ry. Co., 149 N. Y. 23, (1896). The mere blowing of sawdust off of an elevated structure Injuring plaintiff's eye does not of itself raise a presumption of negligence. Wadsworth v. Boston Blev. Ry. Co., 182 Mass. 572, 66 N. B. Rep. 421, 29 Am. & Eng. R. Cas. (N. S.) 778, (1903). See also Nolan v. Brooklyn Heights R. R. Co., 68 App. Div. (N. Y.) 219, (1902). Where the company negligently allowed sparks and fire to escape from one of its locomotives, setting fire to plaintiff's curtains and fur- niture, and it appeared that the plaintiff, while endeavoring to ex- tinguish the fire, was injured, it was held that there could be no recov- ery because the damages were too remote. Hinchey v. Manhattan Ry. Co., 49 N. Y. Super. 406, (1883). Where fire falls from the engine of an elevated railway and ignites an awning in the street, the fact that the company's engines were equipped with the best appliances to prevent the escape of fire, in the absence of evidence as to the actual condition of the engine in question, it appearing also that a coal of that size could not have escaped had the engine been in proper con- dition and that there were openings in its ash pan from which so large coals might have fallen, the evi- dence of negligence on the part of the company is sufficient to sustain a finding that the fire was due to its negligence; and a recovery in such case will not be defeated by the fact that the plaintiff, when she saw the fire, became frightened and ran away, without attempting to extinguish it, nor can she be held guilty of contributory negligence, where it is not shown that she could have prevented the fire. Su- garman v. Manhattan Elevated Ry. Co., 16 N. Y, Supp. 533, (1891). 350 THE LAW OF STEEET BAILWATS. [§§ 213, 214. it and the person injured. The duty is imperative both upon the company and upon its contractor so long as the interference with the highway exists, and no notice of the dangerous condition of the street is necessary to enforce the liability.''^^ § 213. Care required in construction and management of road. — The rule of law defining the duty of the company, with reference to its road-bed, machinery and cars, requires it to exercise the highest degree of care consistent with human skill and foresight to prevent accidents. This rule rests upon the fact that the safety of passengers, while they are en route, is wholly committed to the carrier, and that slight negligence in the man- •agement of trains is likely to result in great bodily harm or death to its numerous patrons, who are compelled to use that means of conveyance and have a right to rely upon the utmost vigilance of the carrier. Where collisions occur, the burden of proof is on the defendant corporation to show that the accident is not attribu- table to any lack of care, foresight or skill on its part in pro- viding against such contingencies.^^* § 214. Stairways, stations and approaches to trains. — A less degree of care is required of the company with reference to the construction, care and management of the approaches to its cars, such as platforms, halls and stairways, than that required in regard to its road-bed, machinery and the construction of its cars and other appliances which would be likely to occasion great "'Flynn v. New York Elevated peared that the train was so R. R. Co., 49 N. Y. Super. 60, crowded that when the engineer (1883); following Storrs v. Utlca, gave the signal for hand-brakes the 17 N. Y. 105, (1858) ; Burmeister v. brakemen could not use the brakes New York Elevated R. R. Co., 47 N. In time to avoid a collision, it was Y. Super. 264, (1882); Worster held that the question of defend- V. Forty-Second St. & Grand St. ant's negligence under liie circum- Ferry R. R. Co., 50 N. Y. 203, stances was for the jury. Dlabola (1872). V. Manhattan Ry. Co., 15 Daly 470, ="In a case where the steam (1890). In Connelly v. Manhattan brakes on the cars were clogged Ry. Co., 142 N.Y. 377, (1894), it was with snow and ice, caused by a sud- held not to be negligence per se tor den and extraordinary storm, to a company to run its cars during such an extent that they could not a blizzard. See Harrold v. New be used to control the movements York Elevated R. R. Co., 24 Hun of the train, and where it also ap- 184, (1881). § -AU.j ELEVATED BAILKOAJ^S. 351 danger and loss of life to travelers. As to the former, the com- pany is required merely to exercise ordinary care in view of the dangers to be apprehended. ^^° Where a station is located upon a curve convex towards the track, as an opening between the' station and the ends of the car is inevitable and a necessary result of the practical operation of the road, the location of the station upon the curve and the opening between the station and the ends of the car, if no wider than is necessary, will not render the com- pany liable for accidents to passengers caused thereby, if the locality is well lighted and all reasonable precautions are taken to prevent accidents.^^® ""Kelley v. Manhattan Ry. Co., 112 N. Y. 443, (1889), holding that the company could not properly he charged with negligence for a fail- ure to throw on the steps saw dust, or something of that character, dur- ing a storm, or shortly thereafter, to prevent passengers falling on Its stairway rendered slippery by a fall of snow. But see Weston v. New York Elevated R. R. Co., 73 N. Y. 595, (1878) ; McMahon v. New York Elevated R. R. Co., 50 N. Y. Super. 507, (1884). In Plagg v. Manhattan Ry. Co., 49 N. Y. Super. 251, (1883), the court held that the question of contributory negligence was prop- erly submitted to the jury, where the plaintiff fell while descending an unlighted stairway. Different rules as to the obliga- tions of the company are applicable to those portions of the platform upon which passengers must neces- sarily alight and those which they have an option to use or not. Tlmp- son V. Manhattan Ry. Co., 52 Hun 489, (1889). See also Falner v. Brooklyn Heights Ry. Co., 86 App. Div. (N. Y.) 488, (1903) ; McGearty V. Manhattan Ry. Co., 15 App. Div. (N. Y.) 2, (1897) ; Rusk v. Manhat- tan Ry. Co., 46 App. Div. (N. Y.) 100, (1899). "«Ryan v. Manhattan Ry. Co., 121 N. Y. 126, (1890), in which the court seems to have admitted evidence to show that no other serious acci- dents had happened at that place, although the track and platform had remained unchanged for years; Brady v. Manhattan Ry. Co., 15 Daly 272, (1889), where it appeared that the opening was dangerous and that the company had been warned of its condition by previous accidents. The judgment in this case was re- versed in Brady v. Manhattan Ry. Co., 127 N. Y. 46, (1891), with the comment, however, that "the evi- dence would have been competent if evidence had been first adduced tending to show that the conditions were similar." See Hanrahan v. Manhattan Ry. Co., 53 Hun 420, (1889), holding that the mere hap- pening of such accidents was not proof of negligence; Boyce v. Man- hattan Ry. Co., 54 N. Y. Super. 286, (1887), in which it appears that the station was not properly lighted; Johnson v. Manhattan Ry. Co., 52 Hun 111, (1889), the plaintiff alleg- ing that the railing of the stairway was defective. In this case the court decided that a subsequent ac- cident at the same place could not be proved. See also Lycett v. Man- hattan Ry. Co., 12 App. Div. (N. Y.) 326, (1896). 352 THE LAW OF STREET EAILWAYS. [§§ 215, 21C. § 215. Regulation as to gates on car platforms,--^The act of 1881^^'' provides that "every car for passengers upou elevated railroads shall have gates at the outer edges of the platforms, so constructed that they shall, when opeued, be caught and held open by such catch or spring as will prevent their swinging against and obstructing passengers in their egress from or ingress to such ears ; and every such gate shall be kept closed Avhile the car is in motion ; and when the car is stopped and a gate has been opened, the car shall not start imtil such gate is again firmly closed." This provision does not regulate the time when, or the contingency upon which, the servants of the company should shut the gates of the cars. The guard in performing that duty must be controlled by the existing circumstances, and the company will be liable to a passenger injured by his negligence, whether wan- ton or a mere error of judgment.^'* § 216. Entering or leaving train while in motion — riding on platform— standing in car — It is the duty of a company oper- ating an elevated railroad, which makes short stops at its stations, to give those who wish to board its cars clear and intelligent signals indicating when it ceases to be safe or prudent to board the train.^^® It is the duty of a passenger who is standing on the platform to go inside the car when req^iested so to do by a per- son having charge of the train, if there is standing room inside, althoiigh there are no vacant seats; and the fact that he has a well-founded ground of complaint against the company, for not providing adequate accommodations for passengers, does not relieve him from the duty of leaving the platform.^^" BvTt where the company permits a passenger who cannot at once find a place inside the car to stand on the step, it is bormd to exercise a high degree of care to make the platform safe and secure for his =" Laws of New York, 1881, Chap. Ry. Co., 182 Mass. 425, 65 N. E. Rep. 399. 809, 29 Am. & Eng. R. Cas. (N. S.) ™ Lee V. Manhattan Ry. Co., 53 N. 862, (1903). Y. Super. 260, (1886) ; Brown v. ='° McQuade v. Manhattan Ry. Co., Manhattan Ry. Co., 82 App. Div. (N. 53 N. Y. Super. 91, (1886). Y.) 222, (1903). See also Lake St. ^"Graville v. Manhattan Ry. Co., Elev. Ry. Co. v. Burgess, 99 111. App. 105 N. Y. 525, (1887) ; Same v, 499, (1902); Hannon v. Boston Elev. Same, 13 Daly 32, (1885). § 216. j ELEVA'J'ED RAILROADS. 35-3 occupancy. He is entitled to assume that the company will take all reasonable precautions to prevent accident, and will not be held guilty of contributory negligence from the mere fact of riding on the platform with the knowledge of the company's servants. ^*^ A person who is injured while attempting to board a moving train, i« guilty of contributory negligence, which will defeat a recovery unless the defendant corporation is giiilty of wanton or malicious negligence,^^^ but it is not per se negligence for a passenger to leave a car while in motion, when invited or directed to do so by one of the employees in charge of the train, ^^^ nor for a passenger to leave his seat and approach the door of the car for the purpose of leaving it ; and where the door has been opened and the passen- ger is about to leave the car, it is actionable negligence for the employees in charge of the train to stop it with a sudden jerk or jar whereby passengers are injured. ^^* And passengers maj', without negligence, stand in a moving train when the seats are fully occupied ; but one who remains standing when the seats are not all taken, and is thrown by the motion of the car in starting, is guilty of such contributory negligence as will defeat a recovery for the injury thereby sustained.^*" "'Merwin v. Manhattan Ry. Co., Ave. R. R. Co., 38 N. Y. 131, 48 Hun 608, (1888). (1868). When a passenger leaving ^^ Solomon v. Manhattan Ry. Co., a car is Injured by those who are 31 Hun 5, (1883) ; Mellwitz v. Man- crowding on, and it does not appear hattan Ry. Co., 17 N. Y. Supp. 112, that any precaution was taken by (1892); Carroll v. Inter-State Rapid the guard to prevent incoming pas- Transit Co., 16 N. Y. Supp. 889, sengers from interfering with (1891) ; Solomon v. Manhattan Ky. plaintiff in his effort to leave the Co., 103 N. Y. 438 (1886); Mc- train, the question of negligence Kenna v. North Hudson Co. Ry. should be submitted to the jury. Co., 64 N. J. L. 106, 45 Atl. Rep. Buck v. Manhattan Ry. Co., 15 Daly 776, (1899). 48, (1888); Buck v. Manhattan Ry. =*■ Filer v. New York Central R. Co., 15 Daly 276, (1889); Buck v. R. Co., 59 N. Y. 351, (1874) ; Ferry Manhattan Ry. Co., 15 Daly 550, v. Manhattan Ry. Co., 54 N. Y. (1889). See also Phyfe v. Manhat- Super. 325, (1887). tan Ry. Co., 30 Hun 377, (1883); ^"Colwell v. Manhattan Ry. Co., McAlan v. New York & Brooklyn 57 Hun 452, (1890). A passenger Bridge Trustees, 43 App. Div. N. is not required by any rule of law Y.) 374, (1889) ; Viemeister v. to remain in his seat after such Brooklyn Heights Ry. Co., 91 App. indications that the car is about to Dlv. (N. Y.) 510, (1904). stop and that passengers may » De Soucey v. Manhattan Ry. eafely leave it. Nichols v. Sixth Co., 15 N. Y. Supp. 108, (1891). 23 354 THE LAW OF STEEET BAILWAYS. [§§ 217, 218, 219. §217. Bemoval of passemgers from stations or cars — ^false imprisonmenti — ^A regulation forbidding passengers to stand upon the platforms is a reasonable and proper one, and if a passenger refuses to comply with it when there is room inside the car which can conveniently be reached, the servants of the company may lawfully eject him from the train at any regular station, but they have no authority to use physical force to compel him to enter the car.^^* The company may rightfully refuse to sell a ticket to a person who intends to take passage on one of its cars while intoxicatfid, and may forcibly eject him from the sta- tion if, upon request, he refuses to leave. But its servants cannot lawfully use more force than may be necessary to enforce com- pliance with the request, and for injuries resulting from the unnecessary use of force, whether in passion or wilfulness or otherwise, the company will be responsible.^*^ And the company is liable, also, for the misconduct of its servants in charge of a station in causing the false imprisonment of a person who is arrested by them or at their instance or request.^** § 218. Injury to persons on or near track. — ^While the com- pany is not required to exercise the same degree of care and dili- gence towards its passengers after they have left its cars as while they are entirely under its control, it will, nevertheless, be liable for injuries to such persons or to others caused by the lack of ordinary care in the management of its cars, as, for instance, negligently moving its train towards a group of persons collected upon or near its tracks by reason of a blockade on the road, which causes a panic, in which some of them are injured by being thrown to the street below. ^*® § 219. Lessor not liable for lessee's negligence. — ^TJnder "«'Gravllle v. Manhattan Ry. Co., Y. Supp. 411, (1892). This subject 13 Daly 32, (1885) ; Same v. Same, Is more fully considered In Chap. 105 N. Y. 525, (1887). XII. ""McKeman v. Manhattan Ry. ™°Weller v. Manhattan By. Co., Co., 54 N. Y. Super. 354, (1887). 53 Hun 372, (1889). But a defend- "^ Shea V. Manhattan Ry. Co., 15 ant company was held not to be Daly 528, (1890). But see Oppen- liable for the death of a workman heimer v. Manhattan Ry. Co., 18 N. who was In the employ of a con- § 219.J ELEVATED RAILEOADS. 355 the statutes of l^ew York^^'* one railroad corporation may lease its road to another ; and where, under statutory authority, a lease has been duly executed and delivered, and the lessee has taken pos- session of the road and is operating and managing it by virtue of that authority, the lessor is not liable to a passenger thereon for injuries sustained by him caused by the negligent acts of the lessee's servants.^^ tractor, and while engaged in paint- ing the superstructure was killed by a passing train, where it ap- peared that he could see the train from his position while at work, and that he was not seen by the engineer or by any one on the train. Pallett V. King's County Elevated R. R. Co., 10 N. Y. Supp. 691, (1890). But an indemnity bond given by the contractor will not protect the company from liability from injur- ing a laborer in his employment. Manhattan Ry. Co. v. Cornell, 54 Hun 292, (1889). As to liability for Injury to a boy who attempted to cross the track towards a hydrant to procure water at the request of a brakeman in the employ of the defendant corporation, see Corco- ran V. New York Elevated R. R., Co., 19 Hun 368, (1876). ^"Laws of N. Y., (1839), Chap. 218. '"Fisher v. Metropolitan Ry. Co., 34 Hun 433, (1885). See also Chap. XIII. CHAPTER VIII. REGULATION BY STATUTE AND ORDINANCK § 220. Introductory. 221. Police power of the state. 222. Power of municipal authori- ties to impose regulations. 223. Ordinances passed in pursu- ance of express powers. 224. Regulations based on general or implied powers^-pre- sumption in favor of valid- ity — power of courts to re- view. 225. Ordinances requiring driver and conductor on each car. 226. Regulations prescribing de- gree of care in operating cars. 227. Boarding or leaving car by front platform — regulation by statute. 228. Passengers' knowledge of reg- ulations presumed. §229. Regulations relating to spet'd and stops — ^railroad cross- ings. 230. Cleaning and sprinkling tracks. 231. Regulation of track and equip- ment. 232. Regulation of fares. 233. Regulation of fares further considered — reasonable- ness of rates. 234. Accommodation of public — running cars during certain hours and at fixed inter- vals — overcrowding. 235. Regulating use of snow plows. 236. Ordinances requiring quar- terly reports. 237. Regulation and custom as to transfers and coupon tickets. 238. Smoking on cars prohibited. 239. Other regulations. §220. Introductory — The proper exercise of the general power of the state to protect the lives and property and to pro- mote the general welfare of its citizens and all other persons, both natural and artificial, who have the right to claim the protection of its laws, is absolutely essential to the efficient enforcement of the rule, Sie utere tuo ut alienum non laedas. This maxim commands instant acquiescence. ISTo doctrine could be more fair, no rule could be more salutary in its results when rightly applied; but it is so comprehensive in its scope, so gen- eral in its terms, that, for lack of better argument, it is invoked in support of almost every stretch of governmental power. Within ever widening limits, and for a great variety of pur- poses, statutes are passed and ordinances adopted in the exercise of the so-called police power, Avhicli is inherent in the state and 356 § 220.J EEGULATIOX BY STATUTE AND OEDIXANCE. 357 may be delegated in part to municipal corporations. What is this power, so beneficial when wisely used, so pernicious when perverted? It has eluded all attempts at successful definition. Says one author: "It pervades every department of business and reaches every interest and every subject of profit and en- joyment." * * * It "seeks not only to preserve the public order and to prevent offenses against the state, but also to estab- lish for the intercoiirse of citizens with citizens, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonable and consistent with a like enjoyment of rights by others. * * * The maxim. Sic utere tuo ut alienum non laedas, is that which lies at the foimdation of the power."'^ Says another avithor: "Laws and ordinances relating to the comfort, health, convenience, good order and general welfare of the inhabitants are comprehensively styled 'Police Laws or Regulations.' * * * These regula- tions rest upon the maxim, Salus populi suprema est lex.''" A very eminent judge has said that it is "the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordi- nances, either with penalties or withoiit, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. It i'^ much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or to proscribe limits to its exercise."^ Says another eminent jurist: "Whatever affects the peace, good order, morals or the health of the community, comes within its scope; and every one must use his property subject to the restriction which such legislation imposes."'* Still another defines it as the power "by which persons and prop- erty are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state, ^Cooley's Const. Lim. (7th Ed.), wealth v. Alger, 7 Cush. 53, 85, pp. 829, 836. (1851). = Dillon on Mun. Corp. (4th Ed.), * Per Field, J., In Munn v. Illinois, sec. 141. 94 U. S. 145, (1876). ^Per Shaw, Ch. J., in Common- 358 THE LAW OF STREET EAIJLWAYS. [§ 220. of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned. And it is cer- tainly calculated to surprise and alarm, that the right to do the same in regard to railways should be made a serious ques- tion.'"* As applied to the control of street railways, the police power is the continuing and paramount authority of the 1^9- lature, within its constitutional prerogatives, and of municipal corporations, under their delegated powers, to establish regula- tions which promote the public welfare, do not unreasonably interfere with the franchise, management or business of the company or violate the obligations of any valid contract. Mr. Cooley pertinently observesi: "The limit to the exercise of the police power in these cases [where charter rightsi are involved] must be this: the regulations must have reference to the comfort, safety, or welfare of society; they must not be in conflict with any of the provisions of the- charter ; and they must not, under pretense of regulation, take from the corporation any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise."* » Per Redfield, Ch. J., in Thorpe v. ' Cooley Const. Lim. (7th Ed.), p. Rutland & Burlington R. R. Co., 27 836, citing in support of the prop- Vt. 150, (1854), in which it was de- osition: Washington Bridge Co. v. cided that railroad companies may State, 18 Conn. 53, (1846) ; Bailey t. be required to make and maintain Philadelphia, Washington & Balti- cattle guards at farm crossings un- more R. R. Co., 4 Harr. (Del.) 389, less exempted from that duty under (1846) ; State v. Noyes, 47 Me. 189, their grants. In this connection see (1859) ; Pingry v. Washburn, 1 also Tiedeman on Lim. of Police Aiken, (Vt.) 264, (1826) ; Miller v. Power, p. 194, and Marmet v. State, New York & Erie R. R. Co., 21 45 Ohio St. 63, 70, (1887). The con- Barb. 513, (1856); People v. Jack- ditions which excited surprise and son & Michigan Plank Road Co., 9 alarm in Justice Redfield flfty-slx Mich. 285, 307, (1861); Sloan v. years ago have long since passed Pacific R. R. Co., 61 Mo. 24, (1875) ; away. Since that time many reg- Attorney General v. Chicago & N. ulations have been enforced against W. R. R. Co., 35 Wis. 425, (1874). railroad companies and other cor- The same limitation on the power porations which were not dreamed will be found stated in many of the of nearly two generations ago. It street railway cases cited under is a serious question, indeed, the following sections of this chap- whether the pendulum has not ter. swung to the other extreme. Regulation of commercial rail- § 221.J EEGTJLATION BY STATUTE AND OEDINANOE. 359 § 221. Police power of the state — ^While private charters are protected under the rule in the Dartmouth College case, roads — ^Many regulations have been Imposed on commercial railroads, a reference to a few of the most im- portant of those which have been held valid being sufllcient to illus- trate their scope. Regulations imposed by statute — The state may require certain rates of fare and freight. Chicago, B. & Q. R. R. Co. V. Iowa, 94 U. S. 155, (1876); but an act which assumes the right to regulate what was granted under the charter is void. Philadelphia, W. & B. R. R. Co. v. Bowers, 4 Houston, (Del.) 506, (1873). The company may be re- quired to fence its tracks. Sawyer v. Vermont R. R. Co., 105 Mass. 196, (1870) ; Smith v. Eastern R. R. Co., 35 N. H. 356, (1857); Bradley v. Buffalo, New York & Erie R. R. Co., 34 N. Y. 427, (1866); Pennsyl- vania R. R. Co. V. Riblet, 66 Pa. St. 164, (1870); Thorpe v. Rutland & B. R. R. Co., 27 Vt. 140, (1854) ; and the exercise of this power once does not preclude a second regula- tion. Gillam v. Sioux City & St. Paul R. R. Co., 26 Minn. 268, (1879). trnjust discriminations in freight may be prohibited, notwithstanding the fact that charters are contracts. Chicago & A. R. R. Co., v. People, 67 111. 11, (1873) ; Illinois Central R. R. Co. V. People, 95 111. 313, 1 Am. & Eng. R. R. Cases 188, (1880). The rates of fare and freight may be required to be fixed and pub- lished annually; Railroad Com- pany V. Fuller, 17 Wall. 560, (1873) ; and may be limited, where the right to amend is reserved. Attorney General v. Chicago & N. W. R. R. Co., 35 Wis. 425, (1874); Blake v. Winona & St. Peter R. R. Co., 19 Minn. 418, 18 Am. Rep. 345, (1872); Chicago, Burlington & Quincy R. R. Co. V. Iowa, 94 U. S. 155, (1876) ; Pelk V. Chicago & N. W. R. R. Co.. 6 Biss. 177. (1874). Municipalities may be authorized to pass ordi- nances requiring the company to station and maintain flag-men at crossings. Western & A. R. R. Co. V. Young, 81 Ga. 397, 7 S. E. Rep. 912, (1888); State, D. L. & W. R. R. V. East Orange. 41 N. J. L. 127, (1879). But a regulation requiring flag-men where there is but a single track, not an unusually dangerous crossing, would be unreasonable and void. Toledo, W. & W. Ry. Co. V. Jacksonville, 67 111. 37, 16 Am. Rep. 611, (1873). Requiring flag- men to be stationed at places where danger to the public might be apprehended at any time would, however, be a reasonable regula- tion and could be enforced. Toledo, W. & W. Ry. Co. V. Jacksonville, supra. The state may also regulate grades, particularly at crossings. Fitchburg R. R. Co. v. Grand Junc- tion R. R. Co., 1 Allen, 552, (1861) ; Pittsburgh & Connellsville R. R. Co. V. South West Pa. R. R. Co., 77 Pa. St. 173, (1874). They may be re- quired to put up depots at railroad stations. State v. Wabash Ry. Co., 83 Mo. 144. (1884). The rate of speed at highways and other crossings may be regulated. Mobile & O. R. R. Co. V. State, 51 Miss. 137, (1875) ; Rockford, R. I. & St. L. R. R. Co. V. Hillmer, 72 111. 236, (1874). The speed of trains in cities or towns may be regulated. Mobile & Ohio R. R. Co. v. State, supra; Horn v. Chicago & North- western R. R. Co., 38 Wis. 463, (1875) ; Rockford, R. I. & St. L. R. R. Co. V. HlUmer, supra; Hass v. 560 THE LAW OF STREET EAILWAYS. [§221. such corporations are, nevertheless, subject like natural persons to those regulations which may be prescribed for the good gov- Chicago & N. W. R. R. Co., 41 Wis. 44, (1876). They may be required to ring the bell and blow the whistle at crossings. Common- wealth V. Eastern R. R. Co., 103 Mass. 254, 4 Am. Rep. 555, (1869) ; Pittsburgh, Cincinnati & St. Liouis R. R. Co. V. Brown, 67 Ind. 45, (1879); Ohio & Mississippi R. R. Co. V. McClelland, 25 111. 140, (1860); Veazie v. Mayor, 45 Me. 560, (1858); Bulkley v. New York & N. H. R. R. Co., 27 Conn. 479, (1858); Galena & Chicago U. R. R. Co. V. Dill, 22 111. 264, (1859); Clark V. Hannibal & St. Joe R. R. Co., 36 Mo. 202, (1865). They may be prohibited from constructing tracks so as to interfere with access to depot of another road. Portland, Saco & Portsmouth R. R. Co. v. Boston & Maine R. R. Co., 65 Me. 122, (1876). Trains may be re- quired to stop at certain stations for a prescribed length of time. Railroad Commissioners v. Port- land R. R. Co., 63 Me. 269, (1874) ; State V. New Haven & North- ampton R. R. Co., 43 Conn. 351, (1876); Chicago & Alton R. R. Co. V. Pierson, 105 111. 657, (1883) ; Davidson v. State, 4 Tex. App. 545, (1878). The running of trains on Sunday may be prohibited. State v. Baltimore & Ohio R. R. Co., 24 W. Va. 783, (1884). One company may be required by statute to draw the cars of another for a reasonable compensation. Rae v. Grand Trunk Ry. Co., 14 Fed. Rep. 401, (1882). The Issuing and taking up of tickets and coupons of tickets may be regulated. Fry v. State, 63 Ind. 552, (1878). Companies may be re- quired to put in farm crossings at their own expense. Illinois Central R. R. Co. v. Willenborg, 117 111. 203, (1886). It has been held that cities have power by mandamus to com- pel the erection of viaducts over tracks at street crossings. State v. Missouri Pacific Ry. Co., 33 Kan. 176, (1885); Merrill on Mandamus, sec. 159. See sec. 65, ante, note, for many other duties enforced by mandamus. By ordinance — The municipality may limit the speed of trains to six miles per hour. Knobloch v. Chi- cago, M. & St. P. Ry. Co., 31 Minn. 402, (1884); Whitson v. City of Fi-anklin, 34 Ind. 392, (1870); but the power of regulation in this re- spect applies only to the streets and public grounds of the city. State V. Jersey City, 29 N. J. L. 170, (1861). Compare Crowley v. Burlington Ry. Co., 65 Iowa 658, (1885) ; Merz v. Missouri P. Ry. Co., 88 Mo. 672, (1886). A city may limit the time during which trains may stand across public streets to the obstruction of trav- elers. Great Western R. R. Co. v. Decatur, 33 111. 381, (1864); State V. Jersey City, 37 N. J. L. 348, (1875); Illinois Central B, R. Co. v. Galena, 40 111. 344, (1866) ; St. Louis, A. & T. H. R. R. Co. V. Belleville, 122 111. 376, (1887) ; Toledo P. & W. Ry. Co. V. Chenoa, 43 111. 209. (1867); it may prohibit boys and persons not passengers from board- ing trains or cars within the city limits. Bearden v. Madison, 73 Ga. 134, (1884) ; and may require flag- men at intersection of commercial railroad and street railway. Cen- tral Pass. Ry. Co. v. Kuhn, 86 Ky. 578, (1888). Contra. Ravenna v. Pennsylvania Co., 45 Ohio St. 118, (1887). 221.} EEGULATION BY STATUTE AND OEDINANCE. 361 ernment of the cominunitj^ The state, however, can not exercise unrestricted control over corporations not invested with political power.'' But the restrictions upon its police power are those only which are to be found in the fimdamental law, for the authority of a legislature in the exercise of this prerogative cannot be limited or controlled by the action of a previous legislature or by the provisions of contracts between corporations or individuals.^ In determining the authority of the legislature to enact a specific statute, the courts must be governed by constitutional provisions which may be found to be applicable, and to aid them in decid- ing whether the power has been conferred or withheld, they will consider the object to be accomplished, the means to be employed and whether or not the enforcement of the statute would be a violation of vested rights.® The following regulations by or- dinance with reference to vehicles have been sustained: Prescribing rates of fare to be charged by hack- ney coachmen, Commonwealth v. Gage, 114 Mass. 328, (1873), and that coaches shall not stand within thirty feet of any public place of amusement. Commonwealth v. Robertson, 5 Cush. 438, (1851) ; pre- scribing routes of travel for omni- bus lines. Commonwealth v. Estod- der, 6 Cush. 562, (1851); imposing fines upon persons impeding pro- gress of street cars by allowing vehicles to remain on track. State V. Foley, 31 Iowa 527, 7 Am. Rep. 166, (1871) ; requiring coachmen who stand near railroad depots to obey police, St. Paul v. Smith, 27 Minn. 364, (1880); taking stands for vehicles for hire. Common- wealth v. Mathews, 122 Mass. 60, (1877) ; imposing tax on all vehicles u.sed in streets, St. Louis v. Green, 70 Mo. 562, (1879). The following statutory regula- tions have been sustained in refer- ence to turnpike roads: Regulation of fare, Baltimore & Yorktown Turnpike Road v. Boone, 45 Md. 344, (1876) ; requiring a company whose gates have been placed in conformity to charter, to set the same back two miles from limits of a city. White Creek Turnpike Co. v. Davidson, 3 Tenn. Ch. 396, (1877); requiring company to remove its toll gate beyond municipal limits, Detroit v. Plank Road Co., 43 Mich. 140, (1880). Perry companies — State may limit rates of fare and freight which may be charged where right to amend charter is reserved, Parker v. Met- ropolitan R. R. Co., 109 Mass. 506, (1872) ; but see Benson v. Mayor, 10 Barb. 223, 245, (1850). Electric company may be re- quired to obtain the approval of its plans by city commissioners before laying wires. People v. Squire, 107 N. Y. 593, (1888). See also sec. 131, ante, as to regulations re- quiring wires to be placed under ground. 'Purdy's Beach on Prlv. Corp., sec. 928. 'Buffalo East Side R. R. Co. v. Buffalo St. R. R. Co., Ill N. Y, 132, (1888). 'Ante sec. 39. 362 THE LAW OF STREET EAILWAYS. [§ 222. § 222. Power of municipal authorities to impose regulations. — Even direct legislative authority to a street railway company to carry passengers in cars over the streets of a city does not exempt the corporation from municipal or police control. The principle is a general one, that when a business is authorized to be conducted by a corporation within a municipality, the latter presumptively possesses the same right to regulate it that it has over a . like business conducted by private persons.^" A grant to a corporation of the right to own property and transact business affords no immunity from any police control to which the citizens could be subjected.^^ A reasonable regulation of the enjoyment of the franchise is not a denial of the right, for cor- porations, which are to be regarded as inhabitants of a city, are subject to its ordinances to the same extent as natural persons.-'^ A company is presumed to know that the business of operating its road must be conducted under such reasonable rules and regu- lations as the municipality may impose, and subject to its share of the burdens incident to the conduct of the municipal govern- ment/* and the legislature is presumed to have intended, when it authorized the ui5e of the public streets for that purpose, that its grantee should hold its privileges subject to such regulations as are reasonably necessary for the common us© of the streets for a street railway and for ordinary travel." Usually the state or its An act, declaring horses affected " Trenton Horse Ry. Co. v. Tren- by glanders a common nuisance ton, 53 N. J. L. 132, 20 Atl. Rep. and authorizing their destruction 1076, 11 L. R. A. 410, (1890). by certain ofllcers, has been held In '^Frankford & Philadelphia Pass. New Jersey to be within the police Ry. Co. v. Philadelphia, 58 Pa. St, powers of the state. The statute, 119, (1868); People v. Geneva although authorizing the abatement Trac. Co. 98 N. Y. Supp. 719, aff'd in of such a nuisance in advance of 186 N. Y. 516, 78 N. B. Rep. 1109, an adjudication of the fact of nul- (1906). sance, did not make the determi- " Wyandotte v. Corrigan, 35 Kan. nation of the officers as to the fact 21, 25, (1886). conclusive, and only permitted "North Hudson County Ry. Co. their acts in abating the nuisance v. Mayor of Hoboken, 41 N. J. L- to be justified by proof of its actual 71, (1879). See also Brooklyn existence. Newark & South Orange Crosstown R. R. Co. v. Brooklyn, Horse Car Ry. Co. v. Hunt, 50 N. 37 Hun 413, (1885); Mllhau v. J. L. 308. (1888). Sharp, 17 Barb. 435, (1854); Mc- "Dillon on Mun. Corp. (4th Ed.), Keon v. Citizens' Ry. Co., 42 Mo. sec. 720, 79, (1867) ; St. Louis v. St. Louis 2UO.J BJSGHJJ^VTION BY STATUTE AND OKDISANCE. 3t53 authorized agencies may require a street railway company to do whatever is required for the health, safety and welfare of the people. The authority to enact measures for these purposes never passes from the people, all corporate rights being accepted sub- ject to this sovereign power. ^' The rights of the municipality, however, cannot extend so far as to permit it imnecessarily to limit or restrict the operation of the railway, nor to authorize any act that will destroy the company's franchise or arbitrarily inter- fere with its business.^' § 223. Ordinances passed in pursuance of express powers — An ordinance, which is within express powers granted to a R. R. Co., 12 Mo. App. 591, (1882) ; Louisville City Ry. Co. v. Louisville, 8 Bush. (Ky.) 415, (1871) ; State v. City of Trenton, 53 N. J. L. 132, 20 Atl. Rep. 1076, (1890); New Or- leans City & Lake R. R. Co. v. City of New Orleans, 44 La. Ann. 728, 11 So. Rep. 78, (1892). •"Town of Westbrook's Appeal from R. R. Commissioners, 57 Conn. 95, (1889). "City & Suburban Ry. Co. v. Savannah, 77 Ga. 731, (1886) ; Allen v. Mayor of Jersey City, 53 N. J. L. 522, 22 Atl. Rep. 257, (1891); Brooklyn Crosstown R. R. Co. v. Brooklyn, 37 Hun 413, (1885). The limitation upon the power of mu- nicipal control is well stated by Reed, J., in State v. City of Tren- ton, 53 N. J. L. 132, 20 Atl. Rep. 1076, 1077, (1890), as follows: "It is indeed true that the power of police regulation by municipal cor- porations over corporations is re- strained within narrower limits than Its power over natural per- sons. This difference does not arise from any lack of power in the legislature to exert directly or to delegate to municipalities the power to exert the same control over each. It springs out of the circumstance that corporations, as the creatures of legislation, have often accompanying the grant of the franchise a grant of special powers and privileges, coupled with limitations upon the right of munic- ipal interference. The municipal legislature cannot by any regula- tion of its own abridge the privi- lege thus conferred, or infringe upon the limitations thus prescribed. This is so because the act of in- corporation is a law of the state, and because any by-law which runs counter to any law, whether or- ganic or legislative, is void. The power to regulate still exists, but in these instances the legislature itself chooses to directly exercise the power or to fix the limits within which it may be exercised by cities." The power to regulate the use of streets for railway purposes is a persisting power. Inherent continu- ously in the city government, and one council cannot, by one exercise of the power, deprive succeeding councils of the right to exercise it again when found necessary. New Orleans City & Lake R. R. Co. v. New Orleans, 44 La. Ann. 728, 11 So. Rep. 78, (1892). 364 THE LAW OF STREET RAILWAYS. [§ 224. municiiDal corporation, cannot be held to be unreasonable and void where the act by which the power is conferred does not ^violate any constitutional inhibition. And the same is true of ordinances passed in pursuance of reserved powers of the municipality.-'^ Tnterfei-enee with grants which are authorized by statute Avould be nothing more nor less than judicial legisla- tion/* imless they violate some constitutional right. § 224. Reflations based on general or implied powers — presumption in favor of validity — power of courts to review Ordinances passed by virtue of an implied power conferred upon municipal corporations must be reasonable, consonant with the general powers and purposes of the corporation, and not incon- sistent with the laws or policy of the state -j^^ but, when the power to pass the ordinance is shown, the presumption is always in favor of its validity.^" There is much discretion left to municipal cor- porations in the exercise of their general and implied powers, and the exercise of this authority will not be judicially interfered with unless the corporation has been manifestly unreasonable and oppressive, and invaded private rights by transcending its author- ity.^^ When the unreasonableness of an ordinance is not apparent on its face, the burden of proof will be upon the party attacking it, to show wherein it is arbitrary, unjust or oppressive.^^ For a discussion of the police =° People ex rel. v. Cregier, Mayor, power, see Tiedeman oa Police 138 111. 401, (1891) ; Elliott on Roads Power, sees. 110, 117, 122 and 233. & Streets (2d Ed.), Chap. 32; Mayor " Haines v. Cape May, 50 N. J. L. v. Dry Dock, East Broadway & Bat- 55, (1887) ; Denver v. Denver City tery R. R. Co., 133 N. Y. 104, 30 Cable Ry. Co., 22 Colo. 565, 45 Pac. N. E. Rep. 563, (1892); State v. Rep. 439, (1896); State v. Sloan, City of Trenton, 53 N. J. L. 132, 20 48 S. C. 21, 25 S. E. Rep. 898, ' 9 Atl. Rep. 1076, (1890); Van Hook v. Am. & Eng. R. Cas. (N. S.) 44, City of Selma, 70 Ala. 361, (1881). (1896); Schmidt v. St. Louis Ry. ^' State v. Heidenhain, 42 La. Ann. Co., 163 Mo. 645, (1901); Detroit v. 483, (1890). Ft. Wayne Ry. Co., 95 Mich. 456, "' Mayor v. Dry Dock, East Broad- 54 N. W. Rep. 958, 20 L. R. A. 79, way & Battery R. R. Co., supra; (1893). See also sec. 224, post. State v. City of Trenton, supra; and cases there cited. Broadway & Seventh Ave. R R. Co. " District of Columbia v. Wagga- v. Mayor, 49 Hun 126, 1 N. Y. Supp. man, 4 Mackey 328, (1885). 646, (1888); State v. Hoboken, 30 ""Dillon on Mun. Corp. (4th Ed.), N. J. L. 225, (1863); People ex rel. v. sec. 319. Cregier, supra. §225.] EEGULATION BY STATUTE AND ORDINANCE. § 225. Ordinances requiring driver and conductor on each car. — Attempts have been made in various cities to enforce ordinances requiring the employment of a driver and conductor on each car, and imposing a penalty for their violation. While the power to pass and enforce ordinances of this character may exist, the authority for imposing such regulations can only be conferred by express legislation. Accordingly, it has been held that where the grant to a company subjects it to any and all laws and ordi- nances that have been or may be established regulating street rail- roads generally, and the power is conferred upon the municipality by its charter "to regiilate and license common carriers, or other carriers of passengers," an ordinance requiring the employment of a conductor is invalid.^^ So it has been decided that where "Where the municipal legislature has authority to act, it must be gov- erned not by our, but by its own discretion; and we sliall not be nasty in convicting them of being unreasonable in the exercise of it." Per Lowrie,< J., in Fisher v. Harris- burg, 2 Grant's Cas. (Pa.) 291, (1S54). The courts doubtless have the power to deny effect to a by-law obnoxious to the objection that it is unreasonable. It is, however, a power to be cautiously exercised. City of St. Louis v. Weber, 44 Mo. 547, (1869). An ordinance to be void for unrea- sonableness must be plainly and clearly unreasonable. White v. Kent, 11 Ohio St. 550, (1860) ; Neier V. Missouri Pacific Ry. Co., 12 Mo. App. 25, (1882). It is a judicial question whether a particular regulation is a reasonable exercise of police power. Tiedeman on Police Power, sec. 593; Metro- politan St. Ry. Co. V. Johnson, 90 Ga. 500, 16 S. E. Rep. 49, (1892). See also Daniel v. New Jersey Trac. Co., 64 N. J. L. 603, 46 Atl. Rep. 025, (1900). The reasonableness or unreason- ableness of a police regulation is subject to variation with a change of circumstances, and not in the cliaracter of the subject of the reg- ulation. A regulation may be rea- sonable when directed against the use of certain kinds of property, while it would be unreasonable if applied to other kinds of property. Tiedeman on Police Power, sec. 194; Toledo, W. & W. Ry. Co. v. Jack- sonville, 67 111. 37, (1873); Dillon Mun. Corp. (4th Ed.), sec. 327. ^Brooklyn Crosstown R. R. Co. V. Brooklyn, 37 Hun 413, (1885). It was said in this case that no reason can be given why a conductor is necessary to the public safety or to the security of passengers. The fact that there is no conductor on a street car is not necessarily evi- dence of negligence on the part of the company. Allen v. Dry Dock, Bast Broadway & Battery R. R. Co., 2 N. Y. Supp. 738, (18SS); but the question should be submitted to the jury to say from all the facts in the case whether a conductor was nec- essary or not. Lamline v. Houston, West Side & P. P. R. R. Co., 14 Daly 144, (1887); Ganiard v. Rochester City & Brighton R. R. Co., 50 Hun 366 THE LAW OF STREET EAILWATS. [§ 225. there is an agreement between a municipal corporation and a street railway company requiring that the latter shall always employ careful conductors and drivers to operate its cars, and cause the same to be run under such regulations as the city council may deem necessary for the protection of the public, a by-law passed by the city prohibiting the operation of any cars within the city, without two men in charge as conductor and driver, is an invasion of the domestic concerns of the company and therefore invalid.^* Although such a requirement, made by an ordinance which is accepted by the company, may be a valid contract between the parties which may be enforced by appro- priate legal remedies, it cannot be enforced by a penal ordinance. ^^ 22, 24, (1888). Compare Bishop v. Union R. R. Co., 14 R. I. 214, (1882). In Redfield v. Oakland Consol. St. Ry. Co., 110 Cal. 277, (1895), It was held to be negligence to fall to pro- vide both a motorman and a con- ductor. =* Toronto v. Toronto St. Ry. Co., 15 Ont. App. 30, (1888). ""Thornhill v. City of Cincinnati, 4 Ohio C. C. 354, (1890). But in a New Jersey case, Trenton Horse R. R. Co. v. Inhabitants of Trenton, 53 N. J. L. 132, 20 Atl. Rep. 1076, 11 L. R. A. 410, 34 Cent. L. J. 190, (1890), the court decided that under a general delegation of power to a municipality to enact ordinances necessary and proper for the good government, order and protection of persons and property, and to pre- scribe the manner in which corpo- rations or persons shall exercise privileges granted to them in the use of the street, an ordinance re- quiring the employment of a con- ductor to assist the driver in the control of the car and passengers and to prevent accidents and dis- turbances of the good order and se- curity of persons and property, was, upon its face, a reasonable regula- tion which might be enforced by prosecution as for a misdemeanor; that if the ordinance was based upon a general power, and its pro- visions were more detailed than the expression of power conferred, the court might look into its reasona- bleness, but the burden of proof was upon the party who denied the validity of the ordinance. In Kentucky such regulations are held to be within the city's po- lice power, where the charter au- thorizes the council to pass ordi- nances "necessary for the due administration of justice and the better government thereof, and to cause the removal or abatement of any nuisance." South Covington & Cincinnati St. Ry. Co. v. Berry, 93 Ky. 43, 18 S. W. Rep. 1026, 50 Am. & Eng. R. Cas. 434, 15 L. E. A. 604, 11 Ry. & Corp. L. J. 261, (1892). The court also sustained a provision of the ordinance requiring the police to cause every car not pro- vided with a driver and conductor to be returned to the stable, as a reasonable means of preventing a nuisance by blockading travel. In a well considered Ohio case, Columbus Ry. & Light Co. v. City of Columbus, 8 Ohio Law Re- porter 161, (1910), the court ren- § 22«.j JiEGULATlU.\ BY STATUTE AiND ORDINANCE. 367 § 226. Regulations prescribing degree of care in operating cars. — An ordinance of St. Louis requiring the conductors and drivers of street cars to keep a vigilant watch for all vehicles and persons on foot, especially children, and to stop the car in the shortest time, was sustained under a charter which gave the city dered a very Interesting decision involving the power of municipali- ties to prescribe the qualifications of motormen and conductors. This case is important, not only because there was no precedent directly in point, but also because the legisla- tion of Ohio, relating to the con- trol of streets, and the regulation of traffic therein, is very similar to that of many other states. An ordinance, passed in anticipation of a strike, provided that it should be "unlawful for any person, either as motorman or conductor, to op- erate or have charge of the opera- tion of any street or interurban car on any street in the city of Colum- bus, Ohio, until he shall have had at least ten days' instruction on said cars within said city," and prescribing a fine for its violation. The validity of the ordinance was attacked by the plaintiff in a suit, brought by it as a taxpayer, to enjoin its publication, on two grounds, first, that the city had no power to legislate on that subject, and, second, that the regulation was unreasonable. The court held, 1, that "A municipal corporation has no power to prescribe by ordi- nance the qualifications of motor- men and conductors upon street and interurban cars and to make a violation of such ordinance an offense punishable by fine;" 2, that "Municipal councils may enact police regulations only when au- thority to do so Is expressly granted or clearly implied, and doubtful claims to such power must be resolved against its ex- istence. Neither Section 3714 nor Section 9113 of the General Code confers power upon municipal cor- porations to provide by penal ordi- nance that no person shall be permitted either as motorman or conductor to have charge of the operation of street or interurban cars within the municipal corpora- tion until after they shall have had at least ten days Instruction on such cars within said municipal corpora- tion, and 3, that "At the suit of a taxpayer the publication of such an ordinance after its passage by the council will be restrained." The statutory provisions referred to by the court are as follows: "Section 3714. Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, ■and shall cause them to be kept open, in repair, and free from nuisance;" "Section 9113. Council, or the commis- sioners, as the case may be, may fix the terms and conditions upon which such railways may be con- structed, operated, extended, and consolidated." See also Chicago West. Div. Ry. Co. V. Hair, 57 111. App. 587, (1894) ; State V. Sloan, 48 S. C. 21, 25 g. E. Rep. 898, 9 Am. & Eng. R. Cas. CN. S.) 44, (1896). ■U)S THE LAW OF STEEET RAILWAYS. [§ 227. power to pass ordinances not inconsistent with the general laws, and to license and regulate the construction and operation of street railways. Its validity was held to rest on the fact that, under the constitution of the state and the city charter, street railway companies were allowed to lay their traeksi in the streets upon the condition of yielding obedience to the city ordinances. The ^principle announced was that the failure to observe the degree of care Avhich is required by a valid ordinance imposing a penalty therefor renders a company which has imdertaken to obey the ordinance, in consideration of the right to use the public streets for its tracks, liable to a person who may be injured in consequence thereof, although a pecuniary penalty is imposed for its non-observance, and, although the degree of care required by ordinance may be higher than that which would otherwise be required by law, because the city can clearly require a greater degree of care on the part of the company in running its cars, as a consideration for granting the franchise.^® § 227. Boarding or leaving car by front platform — regulation by statute — A statute of Missouri relating to the street railways of St. Louis provided that the companies should not be liable for injuries occasioned to passengers in getting on or off cars by the front platform. It was held that the effect and inten- tion of the law was, that when a passenger was injured while he was in the act of getting on or off the front end of the car, it should be presumed as a matter of law, that the negligence of the passenger himself contributed to produce the injury ; but that this presumption would not preclude the passenger from showing =° Fath V. Tower Grove & Fayette 80 Mo. App. 226, (1899); McAn- Ry. Co., 105 Mo. 537, 13 L. R. A. drews v. St. Louis Suburban Ry. 74, (1891); Liddy v. St. Louis R. R. Co., 83 Mo. App. 233, (1899); Mur- Co., M Mo. 506, (1867). An ordi- phy v. Lindell Ry. Co., 153 Mo. 252, nance requiring "the conductor of (1899) ; Citizens' Ry. Co. v. Ford, eacli car" to exercise vigilance Is 93 Tex. 110, 53 S. W. Rep. 575, 46 applicable to cable railways. Lamb L. R. A. 457, (1899) ; Gray v. St. v. St, Louis Cable & Western Ry. Paul City Ry. Co., 87 Minn. 280, 91 Co., 33 Mo. App. 489, (1888). N. W. Rep. 1106, 28 Am. & Bng. R. See also Glenville v. St. Louis R. Cas. (N. S.) 698, (1902) ; Spencer v. R. Co., 51 Mo. App. 629, (1892); St. Louis Trans. Co., 222 Mo. 310, Cooney v. Southern Blec. Ry. Co., 121 S. W. Rep. 108, (1909). § 228.J EEGTJLATIOX BY STATUTE AND OEDINAXCE. 369 that, although injured while boarding or leaving the car in the manner denounced by the statute, the injury was not caused by his own act, but was attributable to some independent act of negligence on the part of the carrier's servants.-' § 228. Passengers' knowledge of regulations presumed The residents of a municipality are presumed to know the provisions of ordinances of the city regulating the management of street cars and prescribing the places where they shall be stopped; and those in charge of the cars may act on the presumption of such knowledge.^* ^ McKeon v. Citizens' Ry. Co., 42 Mo. 79, 86, 87, (1867); Burns v. Bellefontaine Ry. Co., 50 Mo. 139, (1872). Compare Higgins v. ,Han- ibal & St. Joe R. R. Co., 36 Mo. 418, (1865). But see Witzmann v. Soutliera Ry. Co., 131 Mo. 612, (1895). If the exemption of the company from liability depends upon the posting of a notice, the requirement of the statute must he strictly com- plied with. Nolan v. Brooklyn City & Newtown R. R. Co., 87 N. Y. 63, (1881). ™ An ordinance of Birmingham prohibited trains of street cars from stopping on the "east side of a street when moving westward, or on the west side when moving east- ward," so as to clear the street or avenue from the sidewalk, and pre- scribing punishment as for a mis- demeanor for a violation of this regulation. This rule applied both to delivering and receiving passen- gers. "The plaintiff, in our judg- ment must be held to know the rule of stopping on the farther side of the street, as prescribed by the city ordinance. 'It is well established that the residents within a munici- pality must take notice of the ordi- nances, and it is frequently stated that ordinances have the force and effect of laws within the limits of the corporation.' Horr & B. Mun. Ord., 158. This principle seems sound, when applied to any person within a municipality who con- tracts, even by implication, with reference to such ordinances, when operative as police regulations. The contract here, as we have seen, by necessary intendment was that the delivery of the plaintiff as a passenger was to be at a regular stopping place, such as would not be violative of any existing and lawful police regulation. This de- volved on her the responsibility of Informing herself of what we may pronounce an every-day incident of street-railway travel." Per Somer- ville, J., in North Birmingham St. R. R. Co. V. Calderwood, 89 Ala. 247, 7 So. Rep. 360, (1890). See also Mitchell v. Chicago & Grand Trunk Ry. Co., 51 Mich. 236, 16 N. W. Rep. 388, (1883); Inhabitants of Palmyra v. Morton, 25 Mo. 593, (1857J; Heland v. City of Lowell, 3 Allen 407, (1862). Ordinances affect all persons within the municipal limits, wheth- er residents or not. Horr & Bemls, Municipal Pol. Ord., sec. 143. Non- residents, as well as inhabitants of a city, are chargeable with notice of its ordinances, and if an accident 370 THE LAW OF STItEET EAILWAYS. [§ :i29. § 229. Begulations relating ta speed and stops — railroad crossings. — In view of the dangers incident to the running of numerous ears rapidly through the crowded thoroughfares of pOjpulous cities, there is incumbent upon street railway companies a duty to exercise a degree of care and caution to avoid accidents commensurate with the risks involved. Street railways are a gi'eat public convenience and are to be encouraged and protected in the proper and judicious exercise of their franchise ; but they are not entitled to a monopoly of the street, not even to the exclusive use of that part covered by their tracks. They must exercise their rights in harmony with the rights of the traveling public. Therefore, under the power of police regulation given them, cities may provide by ordinance that cars shall not be run at such a rate of speed as will jeopardize the safety of the traveling public.^® If there be no public regulation on the subject, occurs to a non-resident by reason of violating an ordinance, of wtiich tie was bound to talce notice, he cannot recover damages. 21 Am. . & Bng. Encyclo., p. 997 (2nd Ed.) ; Dillon Mun. Corp. (4th Ed.), sec. 355. "'Mahan v. Union Depot St. Ry. Co., 34 Minn. 29, (1885) ; Kelley v. Union Ry. & Transit Co., 95 Mo. 279, (1888) ; Robertson v. St. Louis & Pacific Ry. Co., 84 Mo. 119, (1884); Hanlon v. South Boston Horse R. R. Co., 129 Mass. 310, (1880) ; Elliott on Roads & Streets, p. 575; Horr & Bemis Mun. Ord., sec. 241; Brown v. Twenty-Third St. R. R. Co., 56 N. Y. Super. 356, (1889); Dillon Mun. Corp. (4th Ed.), sec. 713. See also Bly v. Nashua St. Ry. Co., 67 N. H. 474, 32 Atl. Rep. 764, 30 L. R. A. 303, (1893); Omaha St Ry. Co. v. Du- vall, 40 Neb. 29, 58 N. W. Rep. 531, (1894); Cape May R. R. Co. v. Cape May, 59 N. J. L 393, 36 Atl. Rep. 679, 36 L. R. A. 653, 6 Am. & Eng. R. Cas. (N. S.) 507, (1896) ; Brooklyn v Brooklyn R. R. Co., 11 App. Div. (N. Y.) 168, (1896); Brooklyn v. Nassau Elec. Ry. Co., 20 App. Div. (N. Y.) 31, (1897); Chouquette v. Southern Elec. Ry. Co., 152 Mo. 257, (1899); Norfolk Ry. Co., V. Corletto, 100 Va. 355, (1902); Cincinnati Elec. Ry. Co. V. Stahle, 37 Ind. App. 539, 76 N. E. Rep. 55, (1906) ; Deneen v. Haugh- ton Co. Ry. Co., 150 Mich. 235, 113 N. W. Rep. 1126, (1907) ; Sluder v. St. Louis Trans. Co., 189 Mo. 107, 88 S. W. Rep. 648, (1902); Town- send V. Circleville, 78 Ohio St. 122, 84 N. B. Rep. 792, (1908); Ashley V. Kanawha Valley Tract. Co., 60 W. Va. 306, 55 S. E. Rep. 1016, (1907). In United Tract. Co. v. City of Watervliet, 71 N. Y. Supp. 977, (1901), the court enjoined the en- forcement of an ordinance limiting the speed to six miles per hour, on the ground that it was "unreason- able and void." A municipality may exempt cer- tain companies from the provisions of a speed ordinance. Erb v. Mor- asch, 177 U. S. 585," (1900). § 230.J EEGULATION BY STATUTE AND OBBINANCE. 371 the company may run its cars at any rate of speed convenient to it and not dangerous to passengers and tlie public along the track. Regulations may be made also requiring cars to stop at designated places in order to accommodate passengers and prevent unnecessary obstructions to public travel,^^ and protect passengers and per- sons in the streets from injury. ^^ So, regulations may be made requiring cars to stop at railroad crossings and an employee to go ahead and give the signal for crossing.^^ § 230. Cleaning and sprinkling tracks — The duties assumed with reference to the care, condition and maintenance of tracks are usually defined by statute or ordinance; bxit if the obliga- tions so imposed and assumed are stated only in general terms, or if the duties of the company have not been so prescribed, and the authority to regulate is measured by the police power of the municipal authorities, it may be difficult to determine the validity Speed ordinances adopted in 1864 and in 1876 with respect to a horse oar railway are not applicable to the successor of such railway, op- erating its cars hy electricity, al- though the latter accepted the du- ties and obligations imposed on the former. Bonham v. Citizens' St. Ry. Co., 158 Ind. 106, (1902). «" Citizens' St. Ry. Co. v. Steen, 42 Ark. 321, (1883). This subject is more fully treated in Chap. XI. " North Birmingham St. R. R. Co. V. Calderwood, 89 Ala. 247, 7 So. Rep. 360, (1890). It has been held to be negligent per se to run cable trains or cars at a rate of speed prohibited by ordinance. Weber v. Kansas City Cable Ry. Co., 100 Mo. 194, (1889). An ordinance regulating speed and stops may be introduced upon the question of the company's negli- gence. Cumming v. Brooklyn City R. R. Co., 104 N. Y. 669, (1887). In Brown v. Twenty-Third St. Ry. Co., 56 N Y. Super. 356, (1889), same principle applied to private vehicles. '"An ordinance may require the motorman to stop his car upon the first appearance of vehicles or per- sons on the trp.cks or approaching them. Sluder v. St. Louis Trans. Co., 189 Mo. 107, 88 S. W. Rep. 648, (1902); and forbidding the stopping of cars upon street cross- ings or cross walks. Harrison v. Sutter St. Ry. Co., 116 Gal. 156, 47 Pac. Rep. 1019, 8 Am. & Eng. R. Cas. (N. S.) 200, (1897); and it has been held that cars may be required to come to a full stop be- fore crossing intersecting streets. Cape May Ry. Co. v. Cape May, 59 N. J. L. 404, 36 Atl. Rep. 678, 36 L. R. A. 657, 6 Am. & Eng. R. Cas. (N. S.) 329, (1896). '"Cincinnati Ry Co. v. Murray, 372 THE LAW OF STREET RAILWAYS. [§ 231. of regulations adopted to compel the cleaning and sprinkling of the tracks for the benefit of the public, or to say how far the com- pany may be controlled in carrying out measures for the removal of snow and ice in order to facilitate the movement of its cars and to promote the safety and convenience of its patrons. Under the general dixtj of maintaining its tracks in such a condition as not to obstruct public travel, it has been held that a company may be required to remove large quantities of earth which have fallen upon a portion of the street covered by its franchise.^* So it has been decided that a company may be required by ordinance to keep the dust laid by watering its tracks, and that this duty may be enforced, although the company has not expressly sub- mitted itself to the police regulations or ordinances of the city.^' The power of making regulations concerning the removal of snow may be given by statute exclusively to the municipal authorities, A\'ho may prohibit the exercise of that privilege at any and all times and places when in their opinion it will be inimical to the public interests. ^^ So regulations may be enforced preventing the use of sand upon tracks, the enactment or adoption of such a regulation being a legislative function properly vested in common councils and not subject to review by the courts except on the ground that the ordinance is unreasonable and oppressive.^^ § 231. Regulation of track and equipment If the charter is silent as to the kind of track and equipment, municipal 53 Ohio St. 570, 42 N. E. Rep. L. R. A. 618, (1897) ; State v. Canal 596, 30 L. R. A. 508, (1895) ; Becker R. R. Co., 50 I.a. Ann. 1189, 24 So. V. Detroit Citiz. Ry, Co., 121 Mich. Rep. 265, 56 L. R. A. 287, (1898); 580, (1S99); Indianapolis Trac. Co. Newcomb v. Norfolk Ry. Co., 179 V. Romans, 40 Ind. App. 184, 79 Mass. 449, 61 N. E. Rep. 42, (1901); N. E. Rep. 1068, (1907). Chester v. Chester Trac. Co., 4 Pa. ■''* Pittsburgh & Birmingham Pass. Super. Ct. 575, (1897). Ry. Co. V. Birmingham, 51 Pa. St. ™ Union Railway Co. v. Mayor, 11 41, (1865). On this point see sec. Allen 287, (1865); Chicago v. Chi- 244, post, and cases there cited. cago Union Tract. Co., 199 111. 259, == City & Suburban Ry. Co. v. City 59 L. R. A. 666, (1902). of Savannah, 77 Ga. 731, (1886); '"Dry Dock, East Broadway & State v. New Orleans Ry. Co., 49 Battery R. R. Co. v. Mayor, 47 Hun La. Ann. 1571, 22 So. Rep. 839, 39 221, (1888). § 231. J EEGULATION BY STATUTE AND OBDINANCE. 373 authorities have no power to compel a company to adopt and use such rails or appliances as the council may deem proper, or to prevent it from maicing reasonable changes in those respects. The adoption and use for a time of a switch operated by hand would not preclude the company from superseding it with an automatic switch or some other improved appliance. The use of a certain kind of rail would not prevent the substitution of some other, especially if the change would not result in material incon- venience to the traveling public. The use of poles made of one material would not estop the company from adopting a different variety, if the change would not incommode others in their use of the streets. And it is doubtful whether even a change of gauge could be prevented or compelled by municipal regulation. Every year brings into use numerous improved devices which may be adopted without the consent of the local authorities ; and when an attempt is made by municipal by-laws to interfere in such matters of detail with the management and business of the railway, where no public or private right is invaded, the company will be entitled to the protection of the courts. This principle, however, cannot be carried to such an extent as to abridge the right of local authorities to exercise a reasonable control over those who have obtained franchises in the streets, or to prevent a strict enforcement of all obligations which have been assumed by private agreement. A city may, when granting the right of way, attach any condition not in conilict with its delegaled powers; but it cannot thereafter impose new obligations or duties which are not necessary for the public safety and con- venience. Regulations adopted with reference to speed, the use of signals, or those prescribing where cars shall stop, are looked upon with more favor than those relating to matters of construc- tion and equipment. Hence, it has been held that a street rail- way company is not confined to the kind of rail in use when its charter was granted, merely because no express permission has been granted to make changes in that respect; and that, after adopting and using for many years a certain kind of rail then the only one used for street railway tracks, it may substitute a different rail, so laid as not to create a greater obstruction to the use of the street or increase the cost to the city of keeping it in 374 THE LAW OF STREET KAILAVAYS. L§231. repair. Eegulations may be imposed requiring the equipment "" This point was decided in a leading case In Pennsylvania; Bos- ton, South Easton & West End Ry. Co. V. Easton 133 Pa. St. 505, (1890). The company was incorporated by act of the legislature in 1866. For twenty-two years it used a flat rail. In November, 1888, the company took up the flat rail theretofore used and relaid its track with T rail on the grade furnished by the city en- gineer, without any objection on the part of the engineer, and without any notice from the city to the com- pany not to use them. In June, 1889, an ordinance of the city was adopted providing "that it shall be the duty of all passenger railways to conform to the surveys, regula- tions, and gradients as they are now or may be hereafter established by law. They:, shall submit all plans, courses, styles of rails, and the manner of laying the same, either as to repairs, extension, or construction of such railway, to the highway department, for their ap- proval and sanction, which shall be obtained before they proceed to make such repairs, break ground, or occupy any of the streets, avenues or alleys within the limits of the city." Shortly after the passage of the ordinance the city took up and removed the track so laid without giving notice to the company, and refused to relay it. It was then relaid by the company and again torn up by the city officials; where- upon the company filed a bill to restrain the municipal authorities from any further interference with its road. In discussing the point under consideration, Paxson, C. J., stated the contention of the parties and criticised the action of the public officers in the following vigorous language: "The contention of the city is that it has the absolute right to control the kind of rail to be used by the company, the manner of lay- ing it, and also the repairs to the track. The company contends, on the other hand, that by its charter it has the right to lay down any rail in its discretion, suitable for the purposes of its road, which does not interfere seriously with the rights of the citizens to use their streets; that they are not to be held to the rail first adopted be- cause first used, but may take advantage of any improvements in railroad construction; and that the T rail which they have adopted, from its small size, and the manner in which it is laid, interferes with the public use of the streets as little as the flat rail formerly in use, while it is far cheaper and more economical. The master took a vast amount of testimony as to the merits of the respective rails, ninety-nine witnesses having been examined on this point alone, and found as a matter of fact that the T rail used by the company was one suitable for the purposes of a street- passenger railway; that the burden imposed on the street by the use of the T rail, both as to the inconveni- ence of the traveling public and encumbrance to the highway, was no greater than would have been occasioned by the use of a flange or flat rail; and that he cannot find that the use of a T rail imposes upon the municipality a greater burden in keeping the street in repair than does a flat or flange rail. The learned judge below practically reversed the master upon all these findings of fact, and dismissed the bill. Could the of- ficials of the highway department, S231.J KEGULATION BY STATUTE AND OEDINANCE. 375 of cars with fenders, brakes and other devices for the safety of after seeing these rails laid down months before, and making no ob- jection thereto, suddenly decide that it was an unlawful structure, and proceed to abate it with a strong hand? Conceding that the city had rights in this matter which the company were bound to respect, it Is equally clear that the company had rights which the city officials were bound to respect. It is true a municipality may, with the- strong hand, abate a public or common nuisance, which endangers either the health or the safety of its citi- zens. This much was decided in Klingler v. Bickel, 117 Pa. 326. But no one contends that this road was a nuisance of this character, if a nuisance at all. Nor Is there any analogy between this case and that of the obstruction of a public high- way by an unauthorized person. It was a track laid down upon the streets, under authority of chartered rights, and if the kind of rail used was not the best for the interests of the city, yet it was put down in en- tire good faith and by authority of law. We can not assent to the proposition that the company is bound by its charter to the same kind of rail in use when the charter was granted. There is neither reason nor law to sustain it. Such a construction would deprive the company of the benefit of any ad- vance in railroad science, and would prevent the adoption of a better rail, even if the same were advan- tageous both to the company and to the city. There was nothing In the case to justify the conclusion that this track as laid with the T rail was a public or common nuisance, which the highway de- partment could forcibly and of Its own will abate," The same conclusion was reached by the circuit court of Ohio, Ashta- bula county. In Stewart v. Village of Ashtabula, 2 St. Ry. Rev. 186, (1892), aff. 55 Ohio St. 633. (1896). But it has been held that where tracks have been constructed with rails and gauge in common use and not in conflict with any ordinance at the time, the city may neverthe- less adopt and enforce by-laws and ordinances which may regulate the company in making subsequent changes in those respects. Harris- burg City Pass. R. R. Co. v. Har- risburg, 7 Pa. Co. Ct. Rep. 584, (1884); Waterloo v. Waterloo St. Ry. Co., 71 Iowa 193, (1887). Both of these cases relate to the use of T rails. In the former it was held that although the charter of the company was silent on the subject, an ordinance was reasonable and valid that prohibited the use of T rails and provided that the rails to be used should be of the kind known as street rails for horse railway cars, and should be laid to conform to the grade of the street, present and future, so as not to obstruct public travel, and that the railway companies should submit all plans to the city council of the street occupied, the character of the material and the kind of rail pro- posed to be laid. This case does not touch the question as to the right of the council to Interfere with tracks already laid, provided they were constructed in the man- ner usual at the time and not in violation of the terms of the agree- ment. The latter case (Waterloo V. Waterloo St. Ry. Co., supra) Is rather inconclusive In Its results. The suit was brought by the city to restrain the company from laying the T rail. The court held that it 370 THE LAW OF STEKET JIAII.WAVS. [§231. was not entitled to the relief sought, "because the plaintiff did not part with its lawful authority over its streets, and, in the exercise of such authority, it had full power to make and enforce all necessary and reasonable regulations as to the manner in which the track should be constructed and maintained, and it had no need of the inter- ference of equity." The court seems to have based its decision on the fact that the city council had not adopted any regulation, and for that reason had no right to complain of the substitution of one kind of rail for another. But if a municipality has the right to remove the rails altogether it may make the milder require- ment of ordering a change of rail, on the ground of greater public safety and convenience. Pawca- tuck Valley St. Ry. Co. v. Westerly, 22 R. I. 307, 47 Atl. Rep. 691, (1900). For other cases relating to the power to prescribe the kind of rails to be used, see Louisville City Ry. Co. V. City of Louisville, 8 Bush. (Ky.) 416, (1871); Washington, Alexandria and Mt. Vernon Ry. Co. v. Alexandria, 98 Va. 344, (1906); and Harrisburg City Pass. R. R. Co. v. Harrisburg, 7 Pa. Co. Ct. Rep. 584, (1884). It has been held that an incor- porated town, by its charter clothed with a general police power over its streets and also with a like general power over the subject of nuisances, has the right and au- thority to pass an ordinance re- quiring a city railway company lo make its track located in or along any of its streets to con- form to any of the requirements thereof, so as to enable wagons, carriages and other vehicles to pass over its track without incon- venience or danger, and to punish for a failure to do so. North Chi- cago City Ry. Co. v. Lake View, 105 111. 183, (1883). The same rule applies to a railway laid upon a turnpike which is subsequently brought within municipal control by an extension of the city limits. City of Albany v. Watervlie't Turn- pike R. R. Co., 108 N. Y. 14, (1888). See also Gray v. Washington Ry. Co., 30 Wash. 665, 71 Pac. Rep. 206, 29 Am. & Eng. R. Cas. (N. S.) 479, (1903), where the ordinance re- quired the rails to be made level with the street. The right of a city council to enforce regulations in the exercise of its reserved powers, was passed upon in the case of Electric Ry. Co. V. Grand Rapids, 84 Mich. 257, 47 N. W. Rep. 567, (1890). The com- pany had obtained and accepted in writing the consent of the common council, given by ordinance, to operate its road in certain streets, the ordinance providing that the poles should be approved by the council before they were erected, and requiring that within a certain district iron poles should be used, and that along other parts of the route wooden poles might be used. Subsequently the council passed an ordinance requiring the company to issue transfer tickets, without additional cost, in consideration of being allowed to erect the wooden poles. In the original ordinance it was provided that the rate of fare should be determined by the com- pany, but should not exceed five cents. By another provision of the ordinance the council reserved "the right to make such further rules, orders and regulations as may from time to time be deemed necessary to protect the Interest, safety, welfare or accommodation of the public in relation to said railway and the streets through which it §232. J EEGULATIOJr BY STATUTE AND ORDINANCE. 377 passengers, and the traveling public.^® A company may also be required to equip its cars with screens or vestibules for the pro- tection of its employees from inclement weather.** § 232. Regulation of fares — It is believed that no case has been reported which recognizes the right of municipal authorities to fix absolutely the rate of fare which might la^nrfully be charged and collected by a street railway company, or to establish a maximum of such chaj'ges, except where the authority to exercise passes." The court held that the first ordinance was a contract, In so far as it related to the manner in which the equipment should be constructed; and that the provi- sion in the second ordinance, whereby the council attempted without the consent of the company to impose an additional burden, was void. The permission given to a street railroad company by a city to oc- cupy its streets is subordinate to the city's statutory and corporate powers respecting the use, control and regulation of the streets. Under a statute of the state of Michigan (How. Stat., 1882, sec. 3554) authorizing city councils of cities in which there are street railroads to establish, "by ordi- nance or otherwise," such rules and regulations in regard to the same as may be required for the grading, paving and repaving of the streets, it was held that the city council may require the re- moval of the projecting ends of the ties of a street railroad, when it deems that they will injure a con- templated concrete pavement by jarring the same and disturbing its stability, and that such a regula- tion may be made by resolution and need not extend to railroads other than those occupying the street intended to be so Improved. Detroit v, Ft. Wayne & E. Ry. Co., 90 Mich. 646, 51 N. W. Rep. 688, 50 Am. & Eng. R. Gas. 47, (1892). As to the mode of construction and remedies for unauthorized or defective construction, see sees. 58, 59, 70, 72, ante. "'Cape May Ry. Co. v. Cape May, 59 N. J. L. 396, 36 Atl. Rep. 696, 36 L. R. A. 656, (1896) ; Bullock V. Wilmington St. Ry. Co., 5 Penn. (Del.), 209, 64 Atl. Rep. 242, (1905). An ordinance requiring fenders is reasonable and valid, but a provi- sion therein with respect to the position and height of such fenders, if impracticable, is void. Chicago Ry. Co. V. Freeman, 125 111. App. 318, (1906). See also Brooklyn v. Nassau Elec. Ry. Co., 38 App. Div. (N. Y.) 365, (1899). Where fenders are required by an ordinance, it is negligence per se to operate cars without them. Chicago City Ry. Co. V. O'Donnell, 114 111. App. 359, (1904) ; Ashley v. Kanawha Valley Trac. Co., 60 W. Va. 306, 55 S. E. Rep. 1016, (1907). See also Toronto V. Toronto St. Ry. Co., 10 Ont. L. Rep. 730, (1905). "State V. Smith, 58 Minn. 35, 59 N. W. Rep. 595, 61 Am. & Eng. R. Cas. 571, (1894); State v. Nelson, 52 Ohio St. 88, 39 N. E. Rep. 22, 26 L,. R. A. 317, (1894) ; State v. Whit- aker, 160 Mo. 59, (1900) ; Beaumont Trac. Co. v. State, 46 Tex. Civ. App. 576, 103 S. W. Rep. 238, (1907). But see Yonkers v. Yonkers Ry. Co., 51 378 THE LAW OF STREET EAILWATS. [§ 232. such power has heen conferred by, or reserved in, the constitu- tion or statutes of the state or the ordinance or agreement fixing the rights of the company and the municipality in which the tracks were laid.*^ Where the question of the regulation of fares of street railways has arisen the decisions have been controlled largely by the principles applied in commercial railroad decisions. The Federal Supreme Court and the courts of last resort jn many of the states have asserted that right in a long list of decisions, by which, a few general principles have been settled for those jurisdictions. In a leading case it was held that, under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens toward each other, and, when necessary for the public good, the manner in which each shall use his own property. It was said that when the owner of property devotes it to a use in which the public has an interest, he must, to the extent of that interest, submit to be controlled by the public, for the common good, as long as he maintains the use ; and that the limitation by legislative enactment of the rate of charge for services rendered in a public employment, or for the use of property in which the public has an interest, establishes no new principle in the law, but only gives a new effect to an old one. In accordance with these elementary principles, it was decided that a statute passed by the general assembly of Illinois, fixing the maximum charge for storage and handling grain by warehousemen, was not repugnant to the constitution of the United States.*^ The general doctrine announced in that case has been adopted and followed in a large number of railroad cases, in which it has been held that a regulation limiting charges does not amount to a taking of property in violation of law.*' App. DIv. (N. Y.) 271, (1900) ; State 116 V. S. 307, (1885) ; Georgia K. V. Haskins, 58 Minn. 35, 5 Am. R. & Banking Co. v. Smith, 128 Electl. Cas. 614, (1894). U. S. 174, (1888); Pennsylvania R. " See note 51, sec. 233, post. R. Co. v. Miller, 132 U. S. 75, «Munn V. Illinois, 94 U. S. 113, (1889); Chicago, Milwaukee & St. (1876). Paul Ry. Co. v., Minnesota, 134 " Chicago, Burlington & Qulnoy U. S. 418, (1889) ; Blake v. Winona R. R. Co. V. Iowa, 94 V. S. 165, & St. Peter R. R. Co., 19 Minn. 418, (1876); McAunich v. Mississippi & (1872); Pierce on Railroads, pp. Missouri R. R. Co., 20 Iowa 343, 458,466; Cooley's Const, Lim., (7th (1866) ; Railroad Commission Cases, Ed.) p. 876. Says Mr. Gooley: "In §232.J EEGCLATION BY STATUTE AND OEDINANCE. 379 But the reasonableness of the rates charged by common carriers is a judicial question; hence, a state cannot empower a commis- sion to fix rates finally without opportunity for a judicial hearing on the question of their reasonableness.** In several of the cases the following cases we should say that property In business was af- fected with a public interest: 1. Where the business is one the following of which is not of right, but Is permitted by the state as a privilege or franchise. Under this head would be comprised the busi- ness of setting up lotteries, of giving shows, etc., of keeping bil- liard tables for hire, and of selling Intoxicating drinks when the sale by unlicensed parties is forbidden; also the cases of toll bridges, etc. 2. Where the state, on public grounds, renders to the business special assistance, by taxation or otherwise. 3. Where, for the ac- commodation of the business, some special use is allowed to be made of public property or of a public ease- ment. 4. Where exclusive priv- ileges are granted in consideration of some special return to be made to the public. Possibly there may be other cases." Cooley's Const., Lim. (7th Ed.) p. 877. "Chicago, Milwaukee & St. Paul Ry. Co. V. Minnesota, supra. A statute of Minnesota under consid- eration in that case authorized rail- road commissioners to determine what should be lawful charges of fare and freight, without providing for an appeal to any judicial tri- bunal. Blatchford, J., on page 457, commenting on this feature of the act, said: "It deprives the com- pany of its right to a judicial In- vestigation, by due process of law, under the forms and with the ma- chinery provided by the wisdom of successive ages for the investiga- tion judicially of the truth of a matter In controversy, and sub- stitutes therefor, as an absolute finality, the action of a railroad commission, which, in view of the powers conceded to it by the state court, cannot be regarded as clothed with judicial functions or possess- ing the machinery of a court of justice * * * No hearing is pro- vided for, no summons or notice to the company before the commission has found what it Is to find and de- clared what it is to declare, no op- portunity provided for the company to introduce witnesses before the commission, in fact nothing which has the semblance of due process of law." Mr. Justice Miller, on page 459, in a concurring opinion, said: "I concur with some hesitation in the judgment of the court, but wish to make a few suggestions of the prin- ciples which I think should govern this class of questions in the courts. Not desiring to make a dissent, nor a prolonged argument In favor of any views I may have, I will state them in the form of propositions. 1. In regard to the business of com- mon carriers limited to points with- in a single state, that state has the legislative power to establish the rates of compensation for such carriage. 2. The power which the legislature has to do this can be exercised through a commission which it may authorize to act in the matter, such as the one appoint- ed by the legislature of Minnesota by the act now under consideration. 3. Neither the legislature, nor such commission acting under the au- thority of the legislature, can es- 380 THE LAW OV STREET RAILWAYS. [§ 232. in which the courts have asserted the right of the state to limit tablish arbitrarily and without re- gard to justice and rigtit a tariff of rates for such transportation, which is so unreasonable as to practically destroy the value of property of persons engaged in the carrying business on the one hand, nor so exorbitant and extravagant as to be in utter disregard of the rights of the public for the use of such transportation on the other. 4. In either of these classes of cases there is an ultimate remedy by the parties aggrieved, in the courts, for relief against such oppressive legis- lation, and especially in the courts of the United States, where the tariff of rates established either by the legislature or by the commis- sion is such as to deprive a party of his property without due process of law. 5. But until the judiciary has been appealed to to declare the regulations made, whether by the legislature or by the commission, voidable for the reasons mentioned, the tariff of rates so fixed is the law of the land, and must be sub- mitted to both by the carrier and the parties with whom he deals. 6. That the proper, if not the only, mode of judicial relief against the tariff of rates established by the legislature or by its commission, is by a bill in chancery asserting its unreasonable character and its con- flict with the constitution of the United States, and asking a decree of court forbidding the corporation from exacting such fare as excess- ive, or establishing its right to col- lect the rates as being within the limits of a just compensation for the service rendered. 7. That until this is done it is not competent for each individual having dealings with the carrying corporation, or for the corporation with regard to each individual who demands its services, to raise a contest in the courts over the questions which ought to be settled in this general and conclusive method. 8. But in the present case, where an appli- cation is made to the supreme court of the state to compel the common carriers, namely, the rail- road companies, to perform the services which their duty requires them to do for the general public, which is equivalent to establishing by judicial proceedings the reason- ableness of the charges fixed by the commission, I think the court has the same right and duty to inquire into the reasonableness of the tariff of rates established by the commission before granting such relief, that it would have if called upon so to do by a bill in chancery. 9. I do not agree that it was neces- sary to the validity of the action of the commission that previous notice should have been given to all common carriers interested in, the rates to be established, nor to any particular one of them, any more than it would have been nec- essary, which I think it is not, for the legislature to have given such notice if it had established such rates by legislative enactment. 10. But when the question becomes a judicial one, and the validity and justice of these rates are to be es- tablished or rejected by the judg- ment of a court, it is necessary that the railroad corporations in- terested in the fare to be considered should have notice and have a right to be heard on the question relating to such fare, which I have pointed out as judicial questions. For the refusal of the supreme court of Min- nesota to receive evidence on this subject, I think the case ought to ■ §232.] EEGULATION BY STATUTE AND OEDINANCE. 381 charges, they have recognized the inviolability of charter provisions on this subject amounting to a contract between the company and pany is chartered not only io build a road, but to carry on public trans- portation upon it, it is for the legis- lature to fix the charges for such be reversed on the ground that this is a denial of due process of law in a proceeding which takes the property of a company, and if this be a just construction of the stat- ute of Minnesota it is for that reason void." Mr. Justice Bradley, with whom agreed Mr. Justice Gray and Mr. Justice Lamar, on p. 461, dissenting from the opinion of the majority of the court, expressed his views as follows: "I cannot agree to the de- cision of the court in this case. It practically overrules Munn v. Illi- nois, 94 U. S. 113, and the several railroad cases that were decided at the same time. The governing prin- ciple of those cases was that the regulation and settlement of the fares of railroads and other public accommodations is a legislative pre- rogative, and not a judicial one. This is a principle which I regard as of great Importance. When a railroad company is chartered, it is for the purpose of performing a duty which belongs to the state itself. It is chartered as an agent of the state for furnishing public accommodation. The state might build its railroads if it saw fit. It is its duty and its prerogative to provide means of intercommunica- tion between one part of its terri- tory and another. And this duty is devolved upon the legislative de- partment. If the legislature com- missions private parties, whether corporations or individuals, to per- form this duty, it is its prerogative to fix the fares and freights which they may charge for their services. When merely a road or a canal is to be constructed, it is for the legis- lature to fix the tolls to be paid by those who use it; when a com- transportation. But it is said that all charges should be reasonable, and that none but reasonable charges can be exacted; and it is urged that what is a reasonable charge is a judicial question. On the contrary, it is pre-eminently a legislative one, involving considera- tions of policy as well as of remu- neration; and is usually determined by the legislature, by fixing a max- imum of charges in the charter of the company, or afterwards, if its hands are not tied by contract. If this maximum is not exceeded, the courts cannot interfere. When the rates are not thus determined, they are left to the discretion of the company, subject to the express or implied condition that they shall be reasonable; express when so de- clared by statute; implied, by the common law, when the statute is silent; and the common law has effect by virtue of the legislative will. Thus, the legislature either fixes the charges at rates which it deems reasonable; or merely de- clares that they shall be reason- able; and it is only in the latter case, where what is reasonable is left open, that the courts have juris- diction of the subject. I repeat: When the legislature declares that the charges shall be reasonable, or, which is the same thing, allows the common law rule to that effect to prevail, and leaves the matter there; then resort may be had to the courts to inquire judicially whether the charges are reasonable. Then, and not till then, is it a judi- cial question. But the legislature 382 THE LAW OF STREET EAIL-WATS. [§ 232. the state.*® The general doctrine of the cases seems to be that where the hands of the legislature are not tied by agreement with the company, it may as well impose regulations upon the com- pany after as before charter rights becomeJ fixed. If the state binds itself, upon a sufficient consideration, not to impose such regulations, it cannot afterwards interfere. But even in that case, under the implied obligation of the company not to exact exorbitant charges, it is possible that the courts might grant adequate relief. It has been held that the implied power to regulate charges is not surrendered by the provisions in a charter that the "board of directors shall have power to establish such rates of tolls for the conveyance of persons and property * * * as they - shall, from time to time, by their by-laws direct and determine, and levy and collect the same for the use of said com- pany," and "in consideration of the grants, privileges and fran- chises conferred," that the corporation should pay into the state treasury a certain per cent, of its earnings.*® It is undoubtedly true that, if the charter of a railroad company empowers it to exact toUs at its discretion, an act of the legislature restricting it to prescribed maximum rates is an alteration of the terms! of the charter, but will be justified under a provision of the consti- tution ante-dating the charter, that all general or special acts chartering railroads may be altered or repealed by the legislature has the right, and It is its preroga- case the right to regulate was tive, if it chooses to exercise it, based on the ground that "the state to declare what is reasonable. This had made no irrevocable contract is just where I differ from the ma- with the company." On p. 462 it is jority of the court. They say In stated by Mr. Justice Bradley that effect, if not in terms, that the final the legislature may fix maximum tribunal of arbitrament is the judi- charges "in the charter of the clary; I say it is the legislature, company, or afterwards if its hands I hold that it is a legislative ques- ^^^ ^^j y^^ l,y contract" To the tion, not a judicial one, unless the ^^^^^ g^g^.^.^ ^^^ ^j^^ gj^j.^ ^ ^jn. legislature or the law (which is ^^^ ^ g^ p^^^^. j^ ^ ^o., 19 Minn, the same thing)- has made it Judi- ^^^^ ^^^^^^, jjj.^^j^ ^^^^^^^ ^ r. cial by prescribing the rule that the ^ ^^ g^ ^j, 3^3 (^gg^, . charges shall be reasonable, and ■ ' _ „ ^ leaving it there." ^^"^^^"^ ^ ^""^"^ ^- ^- ^°- '• « See Chicago, Milwaukee & St. Griggs, 22 N. J. L. 623, (1850). Paul Ry. Co. v Minnesota, supra, " Illinois Central R. R. Co. v. inl- and cases cited therein. In that nois, 95 111. 313, (1880). § 233. j EEGULATION BY STATUTE AND OEDINANCE. 383 at any time after their passage.*^ But the right to enforce such regulations has been denied.** The conclusions to be drawn from the decisions sustaining the right to regulate may be stated as follows: 1. Where the legislature has by express contract surrendered its power, such regulations cannot afterwardai be imposed by statute. 2, Where the right has not been expressly surrendered, it may be exercised and enactments on the subject will be construed liberally in favor of the public as against the company. 3. The charges fixed by the legislature, or by any board of commissioners acting under its authority, are subject to judicial review on the ground that they are unreasonable, exor- bitant or oppressive. 4. Statutes which do not provide for such judicial review are unconstitutional and void.*® § 233. Regulation of fares further considered — reasonableness of rates. — ^^Vhere the right to regulate the fares of street railway companies has been sustained, it is based either upon the reserved power of the legislature or upon the binding force of contract rights.^" It was decided by the Supreme Court of the United States that express authority must be conferred by the legisla- ture to enable the municipality to regulate the rates of fare.*^ "Attorney-General v. Railroad sees fit, as a condition of consent. Companies, 35 Wis. 425, 428, (1874). Dean v. Cliicago General Ry. Co., 64 '"An act of the legislature which 111. App. 165, (1896). A municipal- assumes for the state the right to ity cannot curtail the power of the regulate what under the charter legislature to regulate fares, by con- was granted as an alisolute discre- tract with the railway company pre- tion' to the corporation, viz: the scribing the rate of fare. The legis- right to adjust its tariff of charges lature may fix a lower rate at its for the carriage of passengers and discretion, and such action by the freight, undoubtedly impairs the legislature does not impair the obll- obligation of the contract in the gation of contract, but operates aa sense of the constitutional prohlbi- a repeal of the ordinance to that tion, and is inoperative and void, extent. Indianapolis v. Navin, 151 Philadelphia, Wilmington & Balti- Ind. 139, 47 N. B. Rep. 525, 41 L. more R. R. Co. v. Bowers, 4 Houst. R. A. 337, (1898). (Del.) 506, (1873). "Detroit v. Detroit Citizens' Ry. "Numerous cases, covering vari- Co., 184 TJ. S. 368, 382, (1901). See ous phases of the question, are col- also Old Colony Trust Co. v. At- lated in a note by Mr. Lewis in 2 lanta, 83 Fed. Rep. 39, (1897); af- Am. R. R. & Corp. Rep., pp. 586-596. firmed 88 Fed. Rep. 859, (1898). "A municipality has the power to It has been held In Massachusetts prescribe such rates of fare, as it that the legislature has the right to 384 THE -LAW or steeet eailways. [§ 233. The constitution of New York reserves full authority to alter or amend charters of private corporations. A, case arose in that state in which two companies had a contract providing, among other things, for the making by each of connections with the tracks of the other, "so long as it receives for the transportation of passengers the fare allowed on the 3d day of May, 1872, and no longer," and each agreed that it would charge the same rate that it was "permitted to charge by the statutes in force regulat- ing the same" at the date of making the arrangement, and would make no change in the established rates without the consent of the other party. Subsequent to the making of this contract it was declared by statute^^ to be unlavsrful for any street railroad company in Buffalo to charge more than five cents for each pas- senger, which was less than the fare authorized by the statutes' in force when the contract was made. Thereupon one of the com- panies reduced its rate of fare to five cents. In an action to recover a penalty fixed by the contract for a breach of the provis- ion as to rates of fare, it was held that the contract contemplated a change of rates made by the voluntary action of the parties alone, not one made by paramount authority; that by the terms of the contract it was to terminate, in case a condition of affairs should arise in which the parties would not be permitted to charge the rates of fare specified ; and that it terminated on the passage of the act, which was held not to be obnoxious to the constitu- tional prohibition against passing laws impairing the obligation of contracts.®^ It has also been held in that state that, under a prescribe that the rate of fare for '" Chap. 606, Laws of 1875. school children should not exceed '^Buffalo East Side R. R. Co. v. half the regular fare, such right be- Buffalo City R. R. Co., Ill N. Y. 132, ing a valid exercise of its police 139, (1888). "It Is quite clear that power in the interest of education, the parties assumed the existence Commonwealth v. Inter-state Ry. of the power of the legislature to Co., 187 Mass. 436, (1905). change the rates, and contracted In Wilson v. United Trac. Co., 72 with reference to such a contin- App. Div. (N. y.) 233, (1902), it was gency. A fair and reasonable con- decided that Chap. 217, laws of struction of the contract would 1895 providing for the riding of seem to be that the parties intended policemen and firemen without any change to be effected by the charge on street cars is uncon- voluntary action of the parties, and Btitutional, and Is not a proper ex- not one made in obedience to para- ercise of police power. mount authority. It would be un- § 233.J EEGUIATION BY STATUTE AND OEDINANCE. 385 statute authorizing municipal corporationa to grant or witHhold their consent to the construction of a street railway and to impose any conditions which they may deem, proper as to terms upon which the consent will be given, the common council may require, as a condition of its consent, that the purchaser of the franchise should carry passengers, for a certain fare, to and from points beyond the termini of the proposed route over the tracks of other street railways.®* Under a statute of Massachusetts providing that acts of incorporation shall at all times be subject to amend- ment, alteration or repeal, at the pleasure of the legislature, it was held that a subsequent act limiting the rates of toll to be charged by ferry companies for passenger transportation on the cars of street railway companies, was constitutional and binding upon the ferry company, incorporated before its passage, whose charter was, however, liable to alteration under the statute above mentioned.®^ Under the constitution and laws of the state of Louisiana, the city of ISTew Orleans is clothed with fuU and ex- clusive power to grant franchises for the construction and opera- tion of passenger street railways by steam or horse power witihin her corporate limits, including the right to regulate the rates of fare to be exacted by the corporations. It has been held in that state that a contract between the city and a street railway company, exacting from the general public a certain fare and providing that actual residents beyond certain limits should be carried at a lower rate, is not subject to attack as an unreasonable discrimination prohibited by the law governing the obligation of common carriers.^® It has been decided in Massachusetts that reasonable to say that either party N. E. Rep. 349, 49 L. R. A. 650, intended to run the hazard and dan- (1899) ; Adams v. Union R. R. Co.! ger of disobedience to a statute of 21 R. I. 134, 42 Atl. Rep. 515, 44 l! the state, and there is nothing, we R. A. 273, (1898). think, in the contract which re- "^Parker v. Metropolitan R. R. quired it to do so." Per Ruger, Ch. Co., 109 Mass. 506, (1872). As to "^^ regulation of fares under statutes "Peopleexrel.West SideRy. Co. in Massachusetts, see Keefe v V. Barnard, 110 N. Y. 548, (1888). Lexington Ry. Co., 185 Mass. 183, See also South Pasadena v. Los An- (1904). geles Term. Ry. Co., 109 Cal. 315, "Forman v. New Orleans & Car- 41 Pac. Rep. 1093, (1895) ; People v. rolton R. R. Co., 40 La Ann 446 Suburban R. R. Co., 178 111. 594, 53 (1888). See also Robira v.' New 25 386 THE LAW OF STREET RAILWAYS. [§ 233. a provision in the charter of a street railway company, that, any time after the expiration of ten years from the opening of any part of the road for use, the city might purchase of the corpora- tion so much of the corporate property as lay within its own limits, at a specified price, did not give to the city any such interest or right as to enable it to maintain a Mil in equity to re- strain the corporation from raising passenger fares upon the road, if the increase in rates was not adopted with the intent to destroy and depreciate the value of the corporate property, even though the value of the franchise and property would thereby be diminished. ^^ An ordinance of the city of Baltimore authorized a company to charge five cents for each passenger for all dis- tances vsdthin the city limits. An act of the legislature author- ized the company to collect from each passenger over its road not m-ore than thirty cents for the distance between the city limits and Towsontown, and not more than six cents for each mile or fraction thereof for way passengers on any portion of its railway. In the case of a passenger to the city of Baltimore, from a point on the road less than a mile distant from the city,' it was held that the company had no right to collect from him more than eleven cents, i. e., six cents for the fraction of a mile beyond the city limits, and five cents for the part of its road in the city.^* In a Wisconsin case it appears that a municipal ordinanjee pro- vided that the rate of fare on any horse railway in the city should not exceed five cents. When the ordinance was passed a company was operating a single line of railway, all its cars ninning between the same termini. Afterwards it constructed other lines diverg- ing from the main line and separate cars were run from the trunk line on diverging lines to the several different termini. It was held that the ordinance did not give a passenger the right, Orleans Ry. Co., 45 La. Ann. 1368, Trac. Co. v. Shreveport, 122 La. 1, 14 So. Rep. 214, (1893). 47 So. Rep. 40, (1908). See also The right of a municipality under Old Colony Trust Co. v. Atlanta, its charter to "regulate the govern- 83 Fed. Rep. 39, (1897), aflrmed ment of the street cars" does not 88 Fed. Rep. 859, (1898). include the right to lower rates of " Camhridge v. Cambridge R. R- fare fixed by the franchise, but re- Co., 10 Allen 50, (1865). fers only to such restrictions as "* Baltimore & Yorktown Turn- may be necessary to protect the pike Road v. Boone, 45 Md. 344, public from harm. Shreveport (1876). I 233.] EEGULATION BY STATUTE AND OEDINANCE. 387 upon payment of a single fare of five cents, to ride upon a car bound for one terminus, and then at the point of divergence to get upon another car and ride to a different treminus; and that the regulation or custom of the company by which several distinct and separate lines of cars were run between the same termini was reasonable.^^ In an early New York case it was held by the supreme court that, where the legislature has declared that a municipal corporation shall have the power and authority, ffom time to time, to regulate the rates of fare to be charged for the carriage of passengers, the city has no authority to jiass a resolu- tion by which it attempts to abrogate its power of regulation with reference to the grantee of a particular franchise.^" The power to regulate rates of fare is subject to these limitations: First, =° Ellis V. Milwaukee City Ry. Co., 67 Wis. 135, (1886). "Milhau V. Sharp, 17 Barb. 435, (1854). It was said in tlie opinion: "Suppose, further, that the fare which the corporation had thus au- thorized the omnibus proprietors to exact had been ten cents for each passenger, when it was known that other proprietors were willing to perform the same service for six cents, would it not be insisted that, besides going beyond its au- thority, the corporation had been guilty of a wanton breach of duty? And then, if the feature of exclus- iveness were added to the grant, so that the favored proprietors might enjoy a perpetual monopoly of the carriage of passengers upon Broadway by omnibus, could any tribunal fall to declare the grant Illegal and void? The impropriety of such a grant might be more glaring, but, upon principle I can- not see that it would be more ob- jectionable, than that under con- sideration." Per Harris, J., on p. 442. In Indiana it was held that in order to exempt a company from legislative control over its vates of fare, It must appear that the exemption was made in its charter by clear and unmistakable language inconsistent with the ex- ercise of such power by the leg- islature. Indianapolis v. Navin, 151 Ind. 139, 47 N. B. Rep. 525, 41 L. R. A. 337, (1898). A New York statute providing that railroad companies should not charge more than three cents per mile for passengers and baggage, was held not to apply to street cars drawn by horses. Hoyt v. Sixth Ave. R. R. Co., 1 Daly 528, (1866). A peculiar question arose in Moneypenny v. Sixth Ave. R. R. Co., 35 How. Pr. Rep. 452, (1868). The fare was fixed at five cents in specie. After the depreciation of paper money, the court held that the company was justified in ad- vancing the fare one cent when paid in paper, and could compel the additional payment on the ground that it was the tacit under- standing In the charter that the company could charge five cent fares in specie, that being then the lawful money. As to continuous trip for single fare, under statutes of New York 388 THE LAW OF STREET EAILWATS. [§ 234. that there is reasonable need on the part of the public, considering the nature and extent of the service, of lower rates and better terms than those existing; second, that the rates and terms fixed by the ordinance are not clearly unreasonable, in view of all the conditions.®^ It is only where rates are made so unreasonable as to make the enforcement of the law. establishing them equiv- alent to taking property for public use without just compensa- tion that it is held that the company has been deprived of its property without due process of law and has been denied the equal protection of the laws. "The extent of judicial interference is protection against unreasonable rates." ®^ Rates of fare pre- scribed by statute or ordinance are presumed to be reasonable and the burden of proof as to their unreasonableness is upon the party alleging it.*^ § 234. Accommodation of public — running cars during oer- over several lines operated by same company, see Mendoza v. Metropoli- tan Ry. Co., 48 App. Div. (N. Y.) 62, (1900). An ordinance as to fares must be general and uniform in opera- tion and not discriminate In favor of inhabitants of a certain town. Iowa v. Omaha & C. B. Ry. Co., 113 la. 30, 52 L. R. A. 315, (1901). But see Porman v. New Orleans Ry. Co., 40 La. Ann. 446 (1888). The city of Lincoln, Neb., passed an ordinance requiring the con- ductor of each car to have ready for sale packages of tickets of the required number for twenty-five cents each to any passenger apply- ing and paying for same. Held, a reasonable regulation. Sternberg V. State, 36 Neb. 307, 54 N. W. Rep. 553, (1893). ■" Milwaukee Elec. Ry. Co. v. Mil- waukee, 87 Fed. Rep. 577, (1898); Ellis V. Milwaukee City Ry. Co., 67 Wis. 135, 138, (1886). "Union Trac. Co. v. Chicago, 199 111. 484, 547, (1902). See also Chicago & Grand Trunk Ry. Co. V. Wellman, 143 U. S. 339, (1891); Detroit v. Detroit Citiz. St. Ry. Co., 184 U. S. 368, 46 L. Ed. 592, (1901) ; Shreveport Trac. Co. v. Shreveport, 122 La. 1, 47 So. Rep. 40, (1909); Commonwealth v. Interstate Ry. Co., 187 Mass. 436, (1905); Old Colony Tr. Co. v. Atlanta, 83 Fed. Rep. 39, (1897), affirmed 88 Fed. Rep. 859, (1898). An ordinance requiring a com- pany charging five cent fares to sell six tickets for twenty-five cents or twenty-five tickets for one dollar was held to be unreasonable when the company was only making yearly net earnings of from 3.3 per cent, to 4.5 per cent, on its bona fide investment. Milwaukee Elec. Ry. Co. v. Milwaukee, 87 Fed. Rep. 577, (1898). An ordinance compelling uni- versal transfers was held unreason- able. Chicago City Ry. Co. v. Chi- cago, 142 Fed. Rep. 844, (1905). •"Milwaukee Elec. Ry. Co. v. Milwaukee, 87 Fed. Rep. 577, (1898); Chicago Trac. Co. v. Chi- cago, 199 111. 579, (1902). § 234.J EEGULATION BY STATUTE AND OEDINANCB. 389 tain hours and at fixed intervals — overcrowding — ^Regulations re- specting the frequency of trips, and the hours during which the railway shall be operated, are clearly proper subjects of local legislation, or of contract between the public corporation and the private company. Duties of this character, when lawfully im- posed or assumed, may be enforced by appropriate remedies. Courts may grant relief for the failure to discharge an obliga- tion of this kind, even though the hours and intervals are not fixed, and the diity to furnish proper railway service is expressed in general terms only, as, for instance, the running of cars along a particular street daily, "at such regular intervals as may be right and proper.""* But is not the duty to mate trips, at such regular intervals "as may be right and proper," implied from the character and purpose of the franchise itself ? In extreme cases, where the failure is gross, wilful and long continued, it would be a sufficient ground for the forfeiture of the charter, in the absence of any express agreement on the subject. The same principle would apply to lines of the ordinary steam railroad between large cities and populous suburbs and outlying towns, where adequate service requires frequent and regular trips; but, with reference to such features of the management of traffic roads, courts have not yet asserted the right to interfere. Questions as to the extent and character of the power of municipal regula- tion arise in a very practical way when a charter is silent on the subject, and the council subsequently ordains when and how frequently cars shall be run, and provides penalties for disobe- dience. Such by-laws are valid if they are adopted in pursuance of express statutory authority, and do not violate contract rights previously acquired. When embodied in municipal legislation they apply to all future grants which are not exempt from their operation, but they cannot have any retrospective effect. They are not in any proper sense police regulations. They are not adopted for the purpose of protecting health, life or personal safety. And even such regulations have their limit, as shown by "In McCann v. South Nashville mandamus, or by proceedings In R. R. Co., 2 Tenn. Ch. 773, (1877), the name of the state for a for- it was decided that the remedy of feiture of the charter, and that a the city in such a case was hy bill in chancery would not lie to 390 THE LAW OF STEEET EAILWAYS. [§ 234. reference to the requirement that horse cars shall not be run without both a conductor and driver.®^ To be valid, a regula- tion established in the exercise of the police power pure and simple must relate to something in which the public has a direct interest; and where mere considerations of convenience are involved it can only restrict or forbid, but cannot compel. An lOrdinance passed for the purpose of compelling a company to increase the number or frequency of daily trips cannot affect either public or private rights under an existing charter or ordi- nance,*® but may be enforced in all cases where the right to imipose such a duty is reserved and the regulation adopted is' not arbitrary or unreasonable.®^ An ordinance limiting the number enforce the specific performance of duties requiring continuous per- sonal labor and care. ""Ante sec. 225. ™A supplement to the charter of Hudson, N. J., authorized its com- mon council to grant permission to any persons or corporations to lay tracks and run cars on its streets under such licenses and upon such conditions as might be deemed proper, and subject to revocation by the council. An ordinance was passed prescribing the mode and time of running cars and made ap- plicable to an existing company. This was held invalid on the ground that under its charter the company had the right to operate its rail- waiy without the consent of the city council. State ex rel. The Hoboken & Weehawken Horse R. R. Co. v. Mayor of Hoboken, 30 N. J. L. 225, (1863). "' A case in Neiv York arose under a statute which provided that the cars should be run as often as the convenience of the passengers might require, and that the com- pany should be subject to such rea- sonable rules and regulations in respect thereto as the common council might prescribe. In pursu- ance of that act an ordinance was passed requiring the company to run its cars on certain avenues, each way, every twelve minutes be- tween midnight and six o'clock A. M., under a penalty for non-compli- ance. In an action to recover a penalty for failure to comply with that provision of the ordinance, the court of appeals held that the ques- tion of the reasonableness of the ordinance was not controlled by considerations of expense to the company, and that the presumption was in favor of the ordinance; but that the defendant was entitled to introduce evidence that the conve- nience of passengers and the public did not require cars to be run dur- ing the hours specified, and that it was no ground of objection that such evidence related to a period of time subsequent to the date when the ordinance went into effect. Mayor v. Dry Dock, East Broadway & Battery R. R. Co., 133 N. Y. 104, 30 N. B. Rep. 563, (1892), reversing 15 N. Y. Supp. 297, (1891). See also People v. Detroit Ry. Co., 116 Mich. 132, 74 N. W. Rep. 520, 11 Am. & Bug. R. Cas. (N. S.) 798, (1898). An ordinance was en- forced requiring cars to be run §§ 235, 236.] EEGULATION BY STATUTE AND OEDINANCE. 391 of passengers to be carried on a car has been sustained as a valid police regulation."'* § 235. Regulating use of snow plows In northern cities the accumulation of snow on the tracks is so serious an obstaicle to the movement of cars as to render necessary its prompt removal. A company, Avithout express permission, may clear its tracks, but, in doing so, must not unnecessarily interfere with travel on the remainder of the street. It may lawfully be controlled in this respect by reasonable municipal regulations; and it is im"- material whether s^ich rules are established before or after the taking effect of the company's charter. Upon this theory of the law, an ordinance which required a company not only to remove the snow thrown up by the plow, but to reduce it upon the adjacent roadway to such a level as to make it convenient for the approach of all vehicles, and leave the whole width of the street safe for travel, within twenty-four hours, was held to be a reasonable regTilation and clearly within the police power of the city.«» § 236. Ordinances requiring quarterly reports A municipal regulation requiring street railway companies to make quarterly reports of the number of passengers carried by them has been held not to be unreasonable and in restraint of trade, or in con- flict with the Federal Constitution.'^'' upon a proper and reasonable time city from enforcing an ordinance schedule. Chicago v. Chicago Ry. regulating the use of snow plows Co., 222 III. 560, 78 N. E. Rep. 890, upon a street railroad, and to (1906); also requiring sufficient restrain the city from doing any cars in rush hours to give every act to hinder the company in the passenger a seat. North Jersey removal of the snow. Broadway & Ry. Co. V. Jersey City, 74 N. J. L. Seventh Ave. R. R. Co. v. Mayor, 49 761, 67 Atl. Rep. 1072, (1907). Hun 126, 1 N. Y. Supp. 648, (1881). "* Chicago V. Chicago City Ry. Co., See also Gerrard v. La Crosse City 222 111. 560, 78 N. E. Rep. 890, Ry. Co., 113 Wis. 258, 89 N. W. (1906). See St. Louis v. St. Louis Rep. 125, 57 L. R. A. 465, 24 Am. Ry. Co., 89 Mo. 44, (1886), wherein & Eng. R. Cas. (N. S.) 489, (1902). an ordinance imposing a fine for As to rights and remedies of abut- carrying on an average more than ting owners, see sec. 98 ante, eighteen passengers per trip to a ™ A statute of Missouri authorized horse car, was sustained. the city of St. Louis to adopt such ™ So held in a suit to enjoin the municipal regulations concernin<>- 392 THE LAW OF STEBET BAILWATS. [§ 237. § 237. Regulation and custom as to transfers and coupon tickets. — ^A mmiicipality cannot impose a compulsory system of transfers, except in the exercise of power whicli has been con- ferred by constitution or statute or has been reserved by the ordi- nance conferring the franchise.'^^ Where passengers are entitled, upon the payment of a single fare, to be transferred from one car to another, the carrier may enforce reasonable regulations to pre- vent imposition and to facilitate its business; and such regula- tions are valid whether the transfer is made in obedience to statute or ordinance, or voluntarily. A statute of Massachusetts pro- vided that the payment of a certain sum in addition to the reg- ular fare entitled a passenger to a check for a passage on the same day only in any car of the city of Boston between any points named thereon, without additional payment of fare. Construing that act, it hasi been held that such a check does not entitle the street railroads in that city as the public interest and convenience might require, (Laws of 1859, 1860, p. 516). In 1888 the city passed an ordinance containing the fol- lowing provision: "It shall he the duty of each and all of the street railroad companies In the city of St. Louis to report under oath to the city register, between the first and the fifteenth days of the months of July, October, Jan- uary and April of each year, by the president, secretary and superin- tendent, the number of trips made and passengers carried over the road, of which the person making the report is an officer, during the preceding three months, ending on the last day of the months of June, September, December and March, and any failure to make the report required by this section shall sub- ject the street railway company so offending to a fine of not less than five hundred dollars. It shall be the duty of the city register, if said reports show that any of said com- panies have carried an average of eighteen persons per trip to each car since their previous return, to report such company to any of the police justices, and such company shall be subject to a fine of not less than three hundred dollars for the first offense, and a fine of not less than five hundred dollars for each subsequent offense." The decision sustaining this regulation was ren- dered by a divided court, the minority judges holding that the ordinance was invalid because its effect was to compel companies to furnish evidence against them- selves to be used in a prosecution for violating the ordinance. St. Louis V. St. Louis R. R. Co., 89 Mo., 44, (1886); Same v. Same, 14 Mo. App. 221, (1883). As to limitations on the power to regulate, see Pur- dy's Beach on Priv. Corp., sec. 928. Horr & Bemis Mun. Ord., sec. 241; Dillon on Mun. Corp. (4th Ed.), sec. 713. " Old Colony Trust Co. v. Atlanta, 83 Fed. Rep. 39, (1897), affirmed 88 Fed. Rep. 859, (1898). § 237.] EEGtrLATIOW BY STATUTE AITD OEDINANCE. 393 holder, who has once changed ears and surrendered his check in the second car, to a passage in a third car proceeding farther on the same line, although he ia told by the conductor on the second car that he may ride on the third car without paying any additional fareJ^ Where it is the custom of a street railway company to use transfer checks of different colors for different lines, a passenger who accepts a wrong check from a conductor without reading it is not entitled, upon presenting it to the con- ductor of a second line, to continue his trip without the payment of fare on the second line; and, on his refusal to pay, he may be ejected from the car. In such cases the conductor is not re- quired to take the word of a passenger in lieu of the presentation of a proper transfer check.'^^ If a company by virtue of its con- tract with the city must carry passengers over two sections of its line for one fare, a rule established by it requiring a passenger to keep and show, nndetached by him, a coupon ticket, as a voucher of his right to continue on the car beyond a given point, is reasonable in law, and any passenger refusing to comply with the rule may be ejected from the car.''^* But where a transfer "'Wakefield v. South Boston R. obstreperous person who wantonly R. Co., 117 Mass. 544, (1875). refuses to comply with the reason- "Bradshaw v. South Boston R. able and necessary rules adopted R. Co., 135 Mass. 407, (1883). by the carrier. The indulged dls- But the fact that a conductor has order or refusal of one passenger no transfer is no defense to an would engender the same conduct action to recover a statutory in others, and soon the travel would penalty for failing to supply one. become neither comfortable nor Rosenberg v. Brooklyn Ry. Co., 91 safe." Per Poche, J. A.PP. Div. (N. Y.) 580, (1904). See also Walker v. Dry Dock, "De Lucas v. New Orleans & Bast Broadway & Battery R. R. Carrollton R. R. Co., 38 La. Ann. Co., 33 How. Pr. Rep. 327, (1867)! 930, (1886). The court discusses in which a regulation of the com- the point under consideration in a pany forbidding passengers to tear very able opinion, citing many off coupon tickets was sustained authorities in support of the prop- as a reasonable rule, osition. "Under certain circum- A company has the right to limit stances it is not only the right, but the time within which transfers the clear duty of a public carrier, must be used. If by the company's as an act of justice to its other fault a transfer expires before the passengers, and under its respon- holder has had an opportunity to sibility for the safe and speedy use it, and he is required to pay transportation of its passengers, to his fare, he has a right of action eject or remove a recalcitrant or against the company. Garrison v 394 THE LAW OF STREET KAILWAYS. [§ 237. from one car to another is not made in obedience to a regulation or custom, but because a car has been stopped in its course by- some accident or unexpected obstacle, and passengers are trans- ferred for the purpose of continuing their journey in a car of United Rys. Co., 97 Md. 347, (1903) ; Jenkins v. Brooklyn Heights Ry. Co., 29 App. Dlv. (N. Y.) 8, (1898). Where a conductor on the first car tore off coupons from the wrong end, and the conductor on the sec- ond car ejected the passenger on refusal to pay fare, the court held that the latter was not bound to take the passenger's word regard- ing his failure to have appropriate ticket. Brown v. Rapid Ry. Co., 130 Mich. 483, 90 N. W. Rep. 290, 26 Am. & Eng. R. Cas. (N. S.) 819, (1902). But in Indianapolis St. Ry. Co. V. Wilson, 161 Ind. 153, (1903), where the ejection was because the passenger had been given a wrong transfer, the court said: "The appellee, a mere passenger, under the circumstances was not in the eye of the law either presumed or bound to know the meaning, of the various figures, abbreviations, punch marks and other mystic symbols, which the transfer ticket in question contained." In Woods V. Metropolitan St. Ry. Co., 48 Mo. App. 125, (1890), the court held that if the enforce- ment of the rules of a company as to transfers causes temporary in- convenience to a passenger, who by accident or mistake is without proper evidence of his right to pas- sage, though he has paid for it, It is better that he submit than that the business of the road be interrupted, to the general annoyance of all who are in the car. In Keen v. Detroit E31ec. Ry. Co., 123 Mich. 247, (1900), It was held that as between the conductor and pass.enger, and the right of the lat- ter to travel, the ticket produced must be conclusive evidence. See also, Heffron v. Detroit City Ry. Co., 92 Mich. 406, 52 N. W. Rep. 802, 16 L. R. A. 345, (1892); Denver Tramway Co. v. Cloud, 6 Colo. App. 445, 40 Pac. Rep. 779, (1895); Comm. v. Jones, 174 Mass. 401, 54 N. E. Rep. 869, (1899); United Rys. Co. v. Hardesty, 94 Md. 661, 51 Atl. Rep: 406, 57 L. R. A. 275, 25 Am. & Eng. R. Cas. (N. S.) 124, (1902); Pine v. St. Paul City Ry., 50 Minn. 144, 52 N. W. Rep. 392, 16 L. R. A. 347, 52 Am. & Eng. R. Cas. 584, (1892) ; Vicksburg Ry. Co. V. Marlett, 78 Miss. 872, 29 So. Rep. 62, (1901) ; Lawshe v. Tacoma Ry. Co., 29 Wash. 681, 70 Pac. Rep. 118, 59 L. R. A. 350, 29 Am. & Eng. R. Cas. (N. S.) 38, (1902); Citizens' St. Ry. Co. V. Clark, 33 Ind. App. 190, (1904); Muckle v. Rochester Ry. Co., 79 Hun 32, (1894); Ray v. Cortland & Homer Trac. Co., 19 App. Div. (N. Y.) 530, (1897); O'Rourke v. Citizens' St. Ry. Co., 103 Tenn. 124, 52 S. W. Rep. 872, 46 L. R. A. 614, (1899) ; Little Rock Ry. Co. V. Trainer, 68 Ark. 106, 56 S. W. Rep. 789, (1900); Jacobs v. Third Ave. Ry. Co., 71 App. Div. (N. Y.) 199, (1903); Indianapolis St. Ry. Co, V. Wilson, 161 Ind. 153, (1903). Where a passenger had accepted a wrong transfer check, and the conductor, being unwilling to ac- cept his statement as to the mis- take, ejected him from the car, the trial court instructed the jury, in an action to recover damages for the ejection, that if the agent of the company made a mistake in giving the passenger the wrong § 237.] EEGULATION BY STATUTE AND ORDINANCE. oV)5 the same company and in the same direction, transfer checks are unnecessary and the passengers are entitled to continue the trip without payiag additional fare.'^^ It would seem that the principle governing the use of transfer checks on street railways should be the same as that relating to the issue of stopi-over tickets on commercial railroads. A regulation by one of the latter companies, by which one who has paid his fare between two points on the road, but desires to stop over at an intermediate point, is required to procure a stop-over ticket from the conductor of the first train and present it to the conductor of the train on which he seeks to complete his journey, as evidence of his right to continue without further payment, is a reasonable regulation, and has been so decided by the courts of several states. If the passenger asks the proper conductor for a stop-over ticket, and, through the conductor's fault, receives instead thereof only a trip check, the second conductor may still demand of him the addi- tional fare, and, upon his refusal to pay it, may eject him from the train at some usual stopping place, xising no unnecessary force ; and his removal from the train will be no ground of recov- ery against the company, although the latter will be liable to the passenger for the fault of the first conductor.''® A regulation ticket, he was entitled to damages. Downs v. New York & New Haven On review, the Federal Supreme R. R. Co., 36 Conn. 287, (1869) ; Mc- Court held that the charge was Clure v. Philadelphia, Wilmington eminently favorable to the plaintiff. & Baltimore R. R. Co., 34 Md. 532, Carpenter v. Washington & George- (1871) ; Toledo, Wabash & Western town R. R. Co., 121 U. S. 474, 2 Ry. Ry. Co. v. McDonough, 53 Ind. 289, & Corp. Law Jour. 38, (1887). (1879). But see Palmer v. Railroad, "Hamilton v. Third Ave. R. R. 3 Hill (S. C.) 580, (1872); Burnham Co., 53 N. Y. 25, (1873) ; Appleby v. v. Grand Trunk Ry. Co., 63 Me. 298, St. Paul City Ry. Co., 54 Minn. 169, (1873). A regulation made by a 55 N. W. Rep. 1119, 58 Am. & Eng. commercial railroad company, re- R. Cas. 65, (1893) ; Consol. Trac. quiring passengers to exhibit their Co. V. Taborn, 58 N. J. L. 1, 32 Atl. tickets whenever requested by the Rep. 685, 2 Am. & Eng. R. Cas. (N. conductor, and directing the ejec- S.) 124, (1895). tion from their cars of those who ™ Yorton v. Milwaukee, Lake refuse to do so, is a reasonable and Shore & Western Ry. Co., 54 Wis. proper one. The passenger is 234, (1882) ; Townsend v. New York bound to conform to such regula- Central & Hudson River R. R. Co., tion, and forfeits his right to be car- 56 N. Y. 295, (1874); Shelton v. ried further by his refusal to corn- Lake Shore & Michigan Southern ply with it. Hibbard v. New York Ry. Co., 29 Ohio St. 214, (1876); & Erie R. R. Co., 15 N. Y. 455, 396 THE LAW OF STKEBT RAILWAYS. [§ 237. or custom of a street railway company, by which soYeral dis- tinct and separate lines of cars are nan between different termini, (1857). Persons may be excluded under reasonable regulations from railroad depots. Commonwealth v. Power, 7 Metcalf 596, (1844). Under the Mass. Pub. Sts., Chap. 113, sec. 47, providing that a com- mutation check, issued by a street railway company in Boston, should entitle the holder "to a passage on the same day only in any car run by any other company between any two points in said city, but not to a passage over the same route on which the check was issued or a route parallel thereto and between and including two common points," the holder of such a check, in re- turning toward his starting point, is not entitled to be carried upon the check in the car of another company, whose route is substan- tially parallel to the route of the company issuing the check, and is between and includes two common points, although a wide detour is made at one place in the route of the latter company between the two common points. Cronin v. High- land St. Ry. Co., 144 Mass. 249, (1887). Said Allen, J., In the opin- ion in this case, at p. 252: "It ap- pears by a reference to the various statutes cited by the defendant, that formerly all the street rail- ways in Boston met at or near a common central point, in what is now Scollay Square, and the origi- nal statute providing for commuta- tion checks, St. 1864, c. 229, § 27, was passed for the purpose of enabling a passenger without pay- ing two full fares to complete his passage to a point which could not be reached in the car in which he started. The statutes concerning street railways were revised in 1871, and consolidated into a general act, St. 1871, c. 381, and by § 36 it was provided that a passenger who paid for a com- mutation check should receive a check which should entitle him to a passage, on the same day only. In any car run in Boston by any other corporation between any two points therein. This of course would not enable a passenger to get two rides upon different cars of the same company, and the purpose does not appear to have been different from that of the statute of 1864, c. 229, § 27. But as the locations of street railways were extended ana multi- plied, the provision was found to be so broad as to be subject to abuses, and an amendment was made by St. of 1878, § 204, which provided that the statute of 1871. c. 381, § 36, should not be construed to re- quire a commutation check to be issued or received 'for a passage upon a car run over the same route with that on which such check was issued, or over a route parallel thereto and between or including two common points.' These two sections are now incorporated into the Pub. Sts., c. 113, § 47. The abuse which the amendment of 1878 was intended to prevent appears to have been the obtaining by a pas- senger of what would amount sub- stantially to a return trip, by using a car of another company, at a lower rate than he could do it upon a car of the company which issued the check. The statute is to be construed with reference to the well-known usage to require one fare for a trip to the end of the company's line, and another fare for the return trip. A passenger §238.] EEGirLATIO]Sr BY STATUTE AND OEDINANCE. 39T and a separate fare charged on each route, is reasonable and may be enforced, when not in conflict with charter duties or obligations assumed by contract.'''' If a company, which is not required by statute or ordinance to give transfer tickets, and does not repr&- sent to the public that it wiU do so, gives a transfer check condi- tioned upon its face to be used within a certain time, passengers must comply with that condition, and, if it is not used within the time specified, it will be void.''* §238. Smoking on cars prohibited — The authority to abate nuisances is a part of the police power vested in all large and populous cities, and there is much discretion left to the municipal could not take the return trip upon the same company's line hy means of a commutation check, because the statute expressly limited him to a car run by another company. But if another company happened to run cars over a line which would enable a passenger to make what would amount substantially to a re- turn trip therein, he might, until the passage of the St. of 1878, c. 204, have done this upon a commu- tation check. The legislature did not intend to give to a passenger the benefit of two trips at a reduced rate, both of which might either wholly or substantially be made upon the line of the same company, but to enable him, at the reduced rate, to reach his point of destina- tion beyond the route of the first company, and when two lines must be used for that purpose." " A municipal ordinance provided that the rate of fare on any horse railway in the city of Milwaukee should not exceed five cents. When the ordinance was passed, the de- fendant company was operating a single line of railway, all its cars running between the same termini. Afterwards it constructed several lines diverging from the main line, and separate cars were run over the main line and diverging lines to the several different termini. In an action for damages for unlawful ejectment from one of the com- pany's cars, it was held that the ordinance did not give a passenger the right, upon the payment of a single fare of five cents, to ride upon a car bound for one terminus and then, at the point of divergence, to get upon another car and ride to a different terminus; and that a passenger refusing to pay additional fare upon the second car might be lawfully ejected therefrom. Ellis V. Milwaukee R. K. Co., 67 Wis. 135, (1866J. In Myers v. Brooklyn Ry. Co., 10 App. Div. (N. Y.) 334, (1896), the court held that the con- ductor was justified in refusing to furnish transfers to a passenger who made repeated demands for them, although he had "no inten- tion or desire'' to use them, seek- ing thereby to lay the foundation for actions to recover penalties. " Heffron v. Detroit City Ry. Co., 92 Mich. 406, 52 N. W. Rep. 802, 16 L. R. A. 345, (1892); Percy v. Metropolitan St. Ry. Co., 58 Mo. App. 75, (1894). 398 THE LAW OF STREET EAILWAYS. [§ 239. corporation in determining what constitutes a nuisanceJ' The exercise of this discretion will not be interfered with unless the corporation has been manifestly unreasonable and oppressive, invaded private rights and transcended the authority granted to it.*" As smoking in the confined space of street cars causes to a great majority of passengers material annoyance, inconvenience and discomfort, and, as it is supposed to be a positive danger to health from the contaminated air, it is considered a public nui- sance, which may be abated by ordinance. A regulation prohibit- ing the practice, and making it a penal offense, may be enforced by cities upon which police power is delegated to maintain good sanitary streets, public places and buildings, to suppress nuisances and to impose a fine for the violation of an ordinance passed in pursuance of that power. Ordinances of this character are not in contravention of personal liberty, but are valid and constitutional regulations, clearly within the general police powers usually conferred upon municipal corporations.^^ §239. Other regulations — Numerous other regulations have been imposed by statute and ordinance relating to various matters of detail in the use of the streets and the management of the cars. Thus in California it is provided by statute that the company must furnish tickets or checks to all passengers who apply for them;^^ in Massachusetts statutory regulations have been enacted with reference to the removal of snow and ice;*' New York has a similar provision;®* in Pennsylvania the use of salt on the tracks is prohibited f^ in New York a city ordinance has been sustained which prohibited the use of sand on the "Kennedy v. Phelps, 10 La. Ann. Ed.), sec. 141; Cooley's Const. Lim., 227, (1855) ; City of Monroe v. Gers- (7th Ed.), p. 833 et seq. pach, 33 La. Ann. 1011, (1881) ; Dil- ''' Cal. (1882) R. S., sec. 502. Ion on Mun. Corp. (4th Ed.), sec. '"Mass. (1882) R. S., p. 113, sec. 379. 26. '" Ante. sec. 224. " R. S. St of 1889, Ohap. 252, sec. 9. "State of Louisiana v. Heiden- »= Revised Statutes of 1883, sec. hain, 42 La. Ann. 483, (1890). See 220. See also Consolidated Trac. also Boston Beer Co. v. Massachu- Co. v. Elizabeth, 58 N. J. L. 619, setts, 97 U. S. 25, (1877) ; Fertlllz- 34 Atl. Rep. 146, 31 L. R. A. 170, 3 Ing Co. v. Hyde Park, 97 U. S. 659, Am. & Eng. R. Cas. (N. S.) 614, (1878); Dillon on Mun. Corp. (4th (1896). §239.J EECrULATION BY STATUTE AND ORDINANCE. 399 tracks;^" and an ordinance of Philadelphia was sustained as a proper police regulation, which required passenger cars to be numbered and licensed on the payment of a stipulated fee.*^ In Ehode Island an ordinance was upheld which provided that cars driven in the same direction should not approach each other within a distance of three hundred feet, except in ease of acci- dent, and at stations.^* «»Dry Dock, East Broadway & Battery R. R. Co. v. Mayor, 47 Hun 221, (1888). "Frankford & Philadelphia Pass. Ry. Co. V. City of Philadelphia, 58 Pa. St. 119, (1868). See also North Braddock v. Second Ave. Trac. Co., 8 Pa. Super. Ct. 233, (1898). «» Bishop V. Union R. R. Co., 14 R. I. 214, (1882). An ordinance requiring the con- tinuous ringing of the bell upon a street car while the car is in mo- tion is unreasonable. Stafford v. Chippewa Valley Ry. Co., 110 Wis. 331, 85 N. W. Rep. 1036, 23 Am. & Eng. R. Cas. (N. S.) 364, (1901). An ordinance may forbid the dig- ging up of streets without the per- mission of the board of aldermen. Westport V. Mulholland, 159 Mo. 86, 60 S. W. Rep. 77, 53 L. R. A. 442, (1900). It has been held that a street railway company may be compelled by mandamus to place guard wires at such points as its wires cross the wires of a telephone company, where it appears that the tele- phone company was the prior oc- cupant, that the apparatus and em- ployes of the telephone company were in constant danger, that guard wires are an effective rem- edy, and that such wires are re- quired by city ordinance which the defendant had neglected to obey. Wisconsin Teleph. Co. v. Janesville St. Ry. Co., 84 Wis. 72, 57 N. W. Rep. 970, 4 Am. Blectl. Cas. 289, (1894). See also Cumberland T. & T. Co. V. United Elec. Ry. Co., 93 Tenn. 492, 29 S. W. Rep. 104, 4 Am. Electl. Cas. 297, (1894); Cum- berland T. & T. Co. V. United Elec. Ry. Co., 42 Fed. Rep. 273, 3 Am. Electl. Cas. 408, (1890), and an in- teresting English case, National Teleph. Co. v. Baker, L. R. Ch. Div. 186, 4 Am. Electl. Cas. 320, Note (1893). In Pennsylvania a telephone-com- pany is bound to place its wires at such a height as not to interfere by contact with a trolley wire used by an electric street railway company. This Is the law of that state, not only on common law principles, but also by statute. Central P. T. & S. Co. V. Wilkes-Barre & W. S. Ry. Co., 11 Pa. Co. Ct. Rep. 417, 4 Am. Blectl. Cas. 260, (1892). CHAPTEE IX. PAVING. RBPAVING, REPAIR AND RESTORATION OF STREETS. §240. Pavement defined. 241. Repairing defined. 242. The duty to pave — how created. 243. Duty in absence of require- ment by statute or ordi- nance. 244. Duty to keep street in good repair. 245. What is meant by recon- structing the street. 246. Repairs between tracks. 247. Obligation to pave whole roadway. 248. Repair of bridges. 249. Failure to designate who shall control repairs. 250. Extent of the duty to repair. 251. Repaving — when cost of ma- terial chargeable to city. 252. Duty to pave in case of ex- tension. 253. Change of grade — relaying tracks rendered necessary by construction of new pavement. § 254. Necessity, time and character of improvement— who to determine. 255. Liability of the municipality. 256. Recovery over by city. 257. Recovery by city, on com- pany's default. 258. Measure of damages recov- erable from company. 259. When the company may De excused from paving. 260. Remedy by indictment 261. Remedy by mandamus. 262. Direct liability for injuries sustained. 263. Company's knowledge of de- fect. 264. Company complying with or- dinance not chargeable with negligence. 265. Liability of lessee to pave and repair. 266. Obligations of constituent companies binding upon consolidated company. § 240. Pavement defined — Much litigation has arisen out of the efforts made by municipal corporations to enforce the liability, real or assumed, of street railway companies to pave, repave and repair streets. The existence of the obligation often depends upon the interpretation which may fairly be given to the statute or ordinance prescribing the duties' of the company. The definitions of the word, pavement, when used with reference to the surface of the roadway in city streets, which have been given by various courts, are so comprehensive as to include a great variety of street improvements. "A pavement is not hm- ited to a uniformly arranged mass of solid material, as blocks of wood, brick or stone, but it may as well be formed of pebbles or 400 [§ 241. PAVING AND EEPAIK OP STEEETS. 401 gravel, or other hard substance which will make a compact, even, hard way or floor."^ §241. Repairing defined.— The duty to repair is usually confined to the portion of the roadway actually occupied by the tracks, or the space between parallel lines extended a short distance beyond the outer rails, and is fulfilled by restoring that portion of the street to the condition in which it was when the tracks were laid, when rendered necessary by wear or accident or other cause not attributable to the city or those acting under its authority. The repair of a street does not mean constructing it with a different kind of material, or on a substantially different grade.^ iper Caton, C. J., in Burnham v. Chicago, 24 111. 496, (1860). The word "pave" includes the usual means to cover the streets vsrith stone or brick so as to make a convenient surface for travel. War- ren V. Henly, 31 Iowa 31, (1870). See also Hooe v. Mayor of Alexan- dria, 1 Cranch C. C. 98, (1802); Smith V. Corporation of Washing- ton, 20 How. 135, 147, (1857). An order to pave a street does not authorize making a macadamized roadway. State v. District Court of Ramsey County, 33 Minn. 164, (1885). In Cedar Rapids v. Cedar Rapids Ry. Co. 108 la. 406, 79 N. W. Rep. 125, (1899), it was held that a bridge is not part of a street, and that "the term 'pave' as applied to streets, avenues and highways refers to the laying of some hard substance upon earth, so as to make a convenient surface for travel." See also sees. 241, 242, post, and cases cited. ' The substitution of a new and different kind of pavement from that existing on a public street, Belgian block for cobble stone, is not a repair of the street. In re Fulton Street, 29 How Pr. 429, (1865) ; Chicago v. Sheldon, 9 Wall. 50, (1869). In State ex rel. v. Cor- rigan St. Ry. Co., 85 Mo. 263, (1884), it was decided that an ob- ligation to repair a street is not an obligation to construct a new pavement, and that a subsequent ordinance imposing an additional obligation to pave with sand stone blocks on a concrete foundation could not be sustained on the ground that it was a proper exer- cise of the police power of the city. Repair does not mean grad- ing, Galveston v. Galveston City Ry. Co., 46 Tex. 435, (1877). See also Mayor v. Sharf, 54 md. 499, (1880), where the city sought to substitute Belgian block for cobble- stone; overruled, apparently on other points, by Mayor v. Johns Hopkins Hospital, 56 Md. 1, (1880) ; Western Paving & Supply Co. v. Citizens' St. Ry. Co., 128 Ind. 525, 26 N. E. Rep. 188, (1891); same case on rehearing, 28 N. B. Rep. 88, (1891), holding that the duty to keep in repair does not require re- paving with asphalt. Where an ordinance required the company to keep so much of the streets as it used "from curb to 402 THE LAW OF STEEET EAILWAYS. [§ 242. § 242. The duty to pave — how created — ^According to the decided weight of authority, no duty rests on a street railway company to pave or repave a part or the whole of the streets occu- pied by it, unless the obligation is created by its charter or is assumed by subsequent agreement resting upon a sufficient consideration.. The obligation to pave is not implied from the mere fact of the license to use the streets, nor can municipal authorities successfully in^'oke their police power for this pur- pose. And, for the same reason, the duty to pave a designated part of the street cannot be enlarged by a subsequent act or ordi- nance, requiring the company to pave a greater portion, unless curb in perpetual good repair" and "in a reasonable sanitary condi- tion," and, as the result of an ex- traordinary rain, rock, stone and earth were washed down upon it, eight or ten feet in depth, for a distance of one hundred feet, it was held that the company was bound to remove the deposit from the street. Pittsburgh & Birmingham Pass. Ry. Co. v. Pittsburgh, 80 Pa. St. 72, (1875). A city cannot recover for the cost of paving between the rails, when the company is under no obligation to construct a new pavement, and in the absence of proof that the space between the rails is not in good order or repair at the time of laying the new pavement. The ac- ceptance by the company- of a char- ter creates an obligation in the na- ture of a contract, which cannot be modified by the municipal corpora- tion, even in those states where the right is reserved to alter the charter, without express provision therefor by statute. Thus, where a company is required to keep the surface of the streets occupied by it, "within the rails, and for one foot outside thereof, and to the extent of the ties, in good and proper or- der and repair," and the road has been operated for about eighteen years without any pavement be- tween the rails, the city cannot pave the whole street with asphalt and recover of the company the expense of paving the portion of the street occupied by its tracks. Binghamton v. Binghamton & Port Dickinson Ry. Co., 16 N. Y. Supp. 225, (1891). Under a statute requiring tliat, when a railroad company constructs its road upon any street or high- way, it shall restore the same "to its former state or to such state, as not to impair its useful- ness," the company is bound not only to repave the por- tion of the street so used by it, but also to keep that part of the street in a reasonable state of repair; but it is not required, whenever the municipality resolves to pave or repave the street, to conform its repairs to the absolute directions and requirements of the city. If the company restores the street to its former usefulness and maintains it in that condition, it has dis- charged its whole duty under the statute. Therefore, where the city decides to repave the street m which the tracks are located with asphalt, the company is not re- quired by such a provision of the statute to repave the part of the § 242.J PAVIWG AND EEPAIE OF STEEETS. 403 the power to impose the additional burden has been expressly reserved.^ street occupied by its tracks with the same material. Gilmore v. City of Utica, 121 N. Y. 561, (1890). ■Chicago V. Sheldon, 9 Wall 50, (1869); Kansas City v. Corrlgan Consolidated St. Ry. Co., 86 Mo. 67, (1885). See Williamsport v. Wil- Uamsport Pass. Ry. Co., 203 Pa. St. 1, (1902) ; Fielders v. North Jersey St. Ry. Co., 67 N. J. L. 76, 53 Atl. Rep. 404, 59 L. R. A. 450, 29 Am. & Eng. R. Cas. (N. S.) 875, (1902). See also Trenton v. Trenton St. Ry. Co., 72 N. J. L. 317, 63 Atl. Rep. 1, (1906). See also Kettle v. City of Dallas, 35 Tex. Civ. App. 632, 80 S. W. Rep. 874, (1904), holding that a statute taxing a company for the cost of paving between the rails and tracks, to the extent that the company is benefited. Is not a vio- lation of the constitutional inhibi- tion against inequality of taxation. Where the original ordinance stipulated that, "in the event of the paving by the city of the whole or any portion of the street used by said railroad company, the portion of the track between the rails shall be paved and kept in good order and thorough repair by the com- pany, at its own expense and cost," and afterwards an act of the legis- lature authorized the city author- ities to compel the company to pave, not only between its tracks, but three feet beyond the rails, it was held that the subsequent stat- ute Impaired the obligation of the contract created by the ordinance and its acceptance, and was invalid as la violation of sec. 10, Art. 1, of the constitution of the United States. It was contended that such legislation was authorized by the code of Georgia, reserving to the city the right to withdraw the fran- chise of the railway company, and that the reservation placed under legislative control all rights, privi- leges and immunities derived by its charter directly from the state; but the court decided that the state had no control over vested rights and interests acquired by the com- pany and not constituting a part of the act of incorporation. It was said: "Where the corporation has made contracts, valid under the laws of the state at the time they were made, the state cannot un- make them, or impose other or dif- ferent terms on the corporation, to its injury, and to the benefit of the other contracting party." Coast Line R. R. Co. v. Savannah, 30 Fed. Rep. 646, (1887). Where a company is required by ordinance to pay the cost of pav- ing streets which it then occupied, it cannot be required by subsequent ordinance to pay the cost of paving done prior to the occupancy of the company, unless such right was reserved by the first ordinance. Oskaloosa Co. v. Oskaloosa, 99 la. 496, 68 N. W. Rep. 808, (1896). See also Fort Dodge Blec. Co. V. Fort Dodge, 115 la. 568, (1902); McKeesport V. Pittsburg Ry. Co., 213 Pa. St. 542, 62 Atl. Rep. 1075, (1906). In State ex rel. v. Corrlgan Con- solidated St. Ry. Co., 85 Mo. 263. (1884), it was held that an obliga- tion to repair is not an obligation to construct a new pavement. In another case it was provided in the original ordinance that the company should boulder that por- tion of the street which It might thereafter occupy, lying between the rails of its tracks, and also that it should pave, boulder, or other- 404 THE LAW OB STEEET EAILWAYS. [§ 243. § 243. Duty in absence of requirement by statute or ordi- nance — In the absence of sucli a duty imposed by statute or ordinance, a company cannot be required to construct a new wise make and keep in repair two feet on the outside of its rails, so as at all times to correspond with the remainder of the street. This ordinance was duly accepted. Subse- quently the ordinance was amended so as to provide that the com- pany should keep Its "tracks and two feet on the outside of each rail, together with all bridges and cross- ings of all gutters, at all times, in good repair, to the satisfaction of the common council." This amend- ment was also accepted by the company. Afterwards an ordi- nance was adopted in which it was provided that if any street, upon which there existed a line of rail- way, was improved from curb to curb, the improvements should be made under contract as required by law, and the company should be liable to the contractor for its pro- portion of the total cost, the pro- portion to be determined by the city- engineer according to the method prescribed in the ordinance. This ordinance was not accepted by the company. The court held that the earlier ordinances were contracts to repair and not to im- prove the streets; and, therefore, as the last ordinance had not been accepted by the company, it could not be assessed for the improve- ment. Western Paving & Supply Co. V. Citizens' St. Ry. Co., 128 Ind. 525, 26 N. E. Rep. 188, (1891). See also City of New York v. Har- lem Bridge Ry. Co., 186 N. Y. 304, 78 N. B. Rep. 1072, (1906) ; State v. New Orleans Tract. Co., 48 La. Ann. 567, 19 So. Rep. 565, (1896). But when the power has been ex- pressly reserved to make such regu- lations and impose such additional conditions or burdens as may be deemed proper, the obligations of the company may be enlarged. Thus, under such a reservation, it was held that, where, by the grant- ing ordinance, the company was re- quired to pave only between its rails, a subsequent ordinance, au- thorized by statute, requiring it to pave one foot beyond its track, was not invalid under the constitution and statutes of Iowa. A general statute of that state, passed before the original ordinance, and appli- cable to all private corporations, re- served the right to subject all fran- chises to such regulations and con- ditions as "the general assembly shall deem necessary for the public good." Sioux City Ry. Co. v. Sioux City, 78 Iowa 367, (1889); Sioux City V. Sioux City Ry. Co., 138 U. S. 98, (1891). See also Storrie v. Houston City St. Ry. Co., 92 Tex. 129, 46 S. W. Rep. 796, 44 L. R. A. 716, (1898); Selectmen of Gardner v. Templeton St. Ry. Co., 184 Mass. 294, (1903). If a company is under no obliga- tion to pave, the fact that it con- structs a pavement for its own con- venience does not render it liable to pay any part of the cost of a new pavement ordered by the city. Leake v. Philadelphia, 150 Pa. St. 343, 23 Atl. Rep. 351, (1893). The fact that a company complied with an order requiring it to lay and maintain paving did not estop it from thereafter contesting the legality of the order. Worcester v. Worcester Ry. Co., 192 Mass. 106, 78 N. E. Rep. 222, (1906). Where a receiver in charge of a 243.J PAVING AUD EEPAIE OF STREETS. 405 pavement on any part of the streets or highwaysi occupied by its railway; but with reference to repairs the rule seems to be differ- ent. The character and extent of the use to which that portion street railway is wrongfully ordered to take up T rails and substitute flat rails, and he removes the tracks already laid, but refuses to relay them, or to restore that portion of the street to its former condition, he will not be directed by the court to pay out money in his hands, for the purpose of grading and macadamizing the abandoned portion of the street in accordance with an order of the municipal authorities, when there is no lien in favor of the town for such an expenditure. Union Loan and Trust Co. V. Southern California Trust Co., 49 Fed. Rep. 267, (1892) ; Dorn & McKee v. Crank, 96 Cal. 381, 31 Pac. Rep. 528, (1892). If the charter of a municipality gives certain oflBcers power to de- termine what buildings would be specially benefited by improve- ments, and to apportion the cost, and the municipality paves an en- tire street, because of the default of a company whose line runs through the street and whose char- ter requires it to keep the space between its rails and two feet on each side in good repair, the valid- ity of an assessment upon the rail- road, for the actual cost of paving between Its rails, Is determinable under the charter of the munici- pality, and not by that of the rail- road company. Farmers' Loan & Trust Co. V. Borough of Ansonia, 61 Conn. 76, 23 Atl. Rep. 705, (1901). A general provision requiring the company to lay and maintain paving Is not limited to paving only, but includes the cost of subsequent maintenance. Worcester v. "Wor- cester Ry. Co., supra. See also Hartford v. Hartford St. Ry. Co., 75 Conn. 471, (1903). The duty to pave does not ex- tend beyond the time when the company ceases to maintain Its track on the street under the grant made by the city. Its duty to pave is co-extensive with the existence of its street franchise. Brick & Terra Cotta Co. v. Hull, 49 Mo. App. 433, (1892); Kansas v. Corrl- gan Ry. Co., 86 Mo. 67, (1885). Statutory provisions: California — Civil Code, (1885), sec. 498. The company must pave or macadamize and keep in con- stant repair between the rails and for two feet on each side thereof. Connecticut — General Statutes, (1888), sec. 3597. The company must grade and keep In repair the space between its rails and not less than two feet on each side of the track, and construct all cross-walks, so that vehicles can conveniently cross or turn off from its track. In case of injury arising from defects in the track the city shall not be liable. Georgia — Laws of 1891, p. 169. Street railway companies shall be subject to pave and liable for street paving; and when any company has succeeded to the franchise or road of another, it shall be liable for all the obligations of the former com- pany. Iowa— Laws of 1884, p. 18. Street railway companies in cities of the first class shall be required to pave and repave at their own expense between the rails and one foot out- side thereof. Maryland — 1 Md. Pub. & Gen. Laws, (1886), p. 376. Companies 406 THE LAW OF STBEET EAILWAYS. [§ 243. of the street is subjected render frequent repairs necessary; hence, it has been held that where the defective condition of the street is caused by the failure of a company to keep the are required to keep in good repair the space between their rails and two feet outside thereof. Massachusetts — Mass. Pub. Stat., (1882), p. 647, sec. 32, and Mass. Pub. Stat, 1898, c. 578. Companies are required to keep in repair the streets and bridges occupied by their tracks, and are liable for injuries caused by carelessness or negli- gence in the construction, manage- ment and use of their tracks. See Boston V. Boston Blev. Ry. Co., 186 Mass. 274, (1904). See also Boston V. Union Freight R. R. Co., 181 Mass. 205, 63 N. K. Rep. 412, 25 lAm. & Eng. R. Cas., (N. S.) 895, (1902) ; McMahon v. Lynn Ry. Co., 191 Mass. 295, 77 N. B. Rep. 826, (1906). Nebraska— Comp. Stat. (1881), sec. 54. They shall pave between the rails at their own cost, when- ever ordered by the city council, the material and character of the paving to be the same as the re- mainder of the street; and shall keep their tracks in repair and safe in all respects for the use of the public, and shall be liable for all damages resulting from their negli- gence. Laws of 1889, p. 111. All horse, cable, steam, electric or other rail- way companies are required to pave and repave all the space between their rails and tracks, and twelve Inches outside thereof, including not only main tracks, but all side tracks, crossings and turn-outs. New Jersey— N. J. Supp., (1886), p. 367, sec. 18. They shall keep in repair, to the satisfaction of the local authorities, the paving, upper planking or other surface material of the portions of the streets, roads and bridges occupied by their tracks. New York— Laws of 1890, ch. 565, sec. 98, and Laws of 1892, ch. 676, impose the duty upon every street surface railroad company operat- ing its tracks in a city or village street to have and keep in perma- nent repair that portion of the street between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the su- pervision of the local authorities and whenever required by them to do so and in such manner as they may prescribe. See Conway v. Rochester, 157 N. Y. 33, (1898); People V. Utica, 45 App. Div. (N. Y.) 356, (1899). Nevada— Laws of 1889, p. 90. Act relating to the town of Reno. The company must keep the part occu- pied by its tracks, and ten feet on each side thereof, in good repair, so as not to interfere with the pas- sage of persons or vehicles, and shall pave, macadamize or plank that portion of the street when re- quired by the local authorities. Ohio— General Code, sec. 3776. The city council may require any part or all of the track between the rails within the corporate limits to be paved with stone, gravel, boulders or the Nickolson or other wooden or asphalt pavement, as may be deemed proper, but with- out the corporate limits paving with such materials shall not be re- quired; and in certain cities the council may require the company to pave and keep in repair sixteen feet for a double track and seven feet for a single track, to be of the § 244. J PAVING AND REPAIR OF STREETS. 40Y streets traversed by its tracks in good repair, it must answer for the consequences.* §244. Duty to keep street in good repair Where the ordinance granting the franchise requires the company to keep' same material as the remainder of the street. District of Columbia — Supp. Rev. Stat. (1874-1891), U. S., p. 177, sec. 5. When any street or avenue, in which a street railway is laid, shall be paved, the company shall bear all the expense of that portion of the work between the exterior rails, and for a distance of two feet on each side thereof, and shall keep the same in repair. In case the company refuses to perform the work, the pavement shall be laid by the District of Columbia and charged to the company. Ontario— Rev. Stat., (1887), pp. 1686, 1688. Unless otherwise agreed, the company shall keep clean and in repair, at its own ex- pense, the space between the tracks and eighteen Inches outside thereof. The company and the municipality may make any agreement relating to the paving and grading of the street which they may think ad- visable. * Cline v. Crescent City R. R. Co., 41 La. Ann. 1031, (1889). See also Dominguez v. Orleans R. R. Co., 35 La. Ann. 751, (1883) ; Harrisburg v. Harrisburg Ry. Co., 1 Pearson 298, (1867); Bangs v. Lewiston & Au- burn R. R., 89 Me. 194, 36 Atl. Rep. 73,- (1896). A company is bound to keep its entire road bed, to the end of its ties and its crossings, in repair, so as not to obstruct travel across its road, or longitudinally upon it; and this duty is a continuing one, whether the charter so expressly requires or not. Memphis, Prospect Park & Belt R. T. Co. v. State, 87 Tenn. 746, 11 S. W. Rep. 946, (1889); Worster v. Forty-Second St. & Grand St. Ferry R. R. Co., 50 N. Y. 203, (1872) ; Rockwell v. Third Ave. R. R. Co., 64 Barb. 438, (1873) ; Lowrey v. Brooklyn City R. R. Co., 4 Abb. N. C. 32, (1878), which refers especially to cross-walks, switches and connections with tracks of the other companies; Pennsylvania R. R. Co. V. Irwin, 5 The Reporter (Bos- ton) 121, (1877), holding that it is the duty of a street railway company to keep its switch on such a grade with reference to the street as to avoid accidents to others. North Hudson Co. Ry. Co. v. Hoboken, 41 N. J. L. 71, (1879), decides that the duty to repair between the rails may be imposed by ordinance, on the ground that it is to be presumed that the legislature intended that the city should have the right to enforce such regulations as may be neces- sary for the common use of streets for a street railway and for or- dinary travel. See Laredo Elec. Ry. Co. V. Hamilton, 23 Tex. Civ. App. 480, (1900); Groves v. Louisville Ry. Co., 109 Ky. 76, 58 S. W. Rep. 508, 52 L. R. A. 448, (1900); Fielders v. North Jersey St. Ry. Co., 67 N. J. L. 76, 59 L. R. A. 450, 29 Am. & Eng. R. Cas. (N. S.), 875, (1901) ; Bolster v. Ithaca St. Ry. Co., 79 App. Div. (N. Y.) 239, (1903). A clause in the charter of a street railway company, requiring that the "company shall be subject to the ordinances of the city of Philadel- phia regulating the running of pas- senger railway cars" does not im- 408 THE LAW OB- STEEET EAILWAYS. [§ 244. the portions of the street which it occupies in good repair, the city cannot by subsequent ordinance compel the company to pave those parts of the streets with specified materials, or punish the employes of the company for continuing to operate its cars in disregard of the terms of the ordinance.^ pose on the company the duty to pave when directed by the city. Philadelphia v. Empire Pass. Ry. Co., 18 Pa. C!o. Ct. Rep. 81, (1896). See also Wood on Railroads, (Minor's Ed.), p. 744 et seq.; Dillon Mun. Corp. (4th Ed.), sec. 721. °A company In Kansas City, Mo., was required to keep certain por- tions of the street occupied by it "in good repair," in compliance with the terms of the ordinance grant- ing the right of way. Subsequently the city passed an ordinance pro- viding that the company should pave the space between lines drawn eighteen inches outside of its outer rails, with stone, wood, granite or other materials, to correspond with the pavement of the street, and also providing a penalty by fine against the officers and employes of any company of the city which should run its cars over any street where such paving had not been done. The court held that the requirement was in violation of contract rights and that the penalties could not be enforced. Kansas City v. Corrigan Consolidated Ry. Co., 86 Mo. 67, (1885). In Pennsylvania, however, it was held that the duty to repair, where It exists, extends to the replace- ment of an old pavement by a new one of a different and improved kind. Philadelphia v. Thirteenth & Fifteenth Sts. Pass. Ry. Co., 169 Pa. St. 269, 33 Atl. Rep. 126, (1895). In Chicago v. Sheldon, 9 Wall. 50, (1869), where a company had agreed to keep a certain portion of the street in good repair and condi- tion, it was held that the obliga- tion of the company extended to repairs only, and that it was not liable for the cost of laying an entirely new pavement, on the •ground that it would be an impair- ment of a valid contract equally binding upon both parties. An ordinance requiring a com- pany to keep in good repair all that part of the street occupied by its tracks. Includes additional tracks to be laid, as well as those already laid and in operation. Montgomery St. Ry. Co. V. Smith, 146 Ala. 316, 39 So. Rep. 757, (1905). When it ac- cepts the privileges of a subsequent ordinance or statute — as by chang- ing its motive power from animal to electricity — a company must also assume the burdens of such ordi- nance, in the matter of paving— as a change from "water stone" to "asphalt." Blnnlnger v. City of New York Ry. Co., 80 App. Div. (N. Y.) 438, (1903). See Trenton v. Trenton St. Ry. Co., 72 N. J. L. 317, 63 AU. Rep. 1, (1906). A company, however. Is not lia- ble for repairing where the tracks are torn up for a municipal Im- provement. Reading v. Reading St. Ry. Co., 19 Pa. Super. Ct. 202, (1902). See also Lansing v. Lansing Ry. Co., 109 Mich. 123, 66 N. W. Rep- 949, (1896) ; Philadelphia v. Heston- ville Pass. Ry. Co., 177 Pa. St. 371, 35 Atl. Rep. 718, (1896) ; People v. Utica, 45 App. Div. (N. Y.) 356, (1899) ; City of New York v. Har- § 24:5.J PAVING AND EEPAIE OF STKEETS. 409 §245. Wliat is meant by reconstructtng tlie street. — The duty of reconstructing the street, as distinguished from the obli- gation to maintain the surface of the roadway in good repair so as not to interfere with its use by others, generally has reference only to the time the road is built, and is discharged by restor- ing the street to its original condition within a reasonable time after the tracks have been laid. Under an ordinance merely imposing the duty of reconstructing the street with the same kind of materials used by the municipality on the remaining portions of the roadway, the city cannot compel the company to repave from time to time, or, on its refusal, make the improve- ment and recover from it a portion of the expense.® lem Bridge Ry. Co., 186 N. Y. 304, 78 N. B. Rep. 1072, (1906). As to the inviolability of such contracts, see Coast Line R. R. Co. V. Savannah, 30 Fed. Rep. 646, (1887); State ex rel. v. Corrlgan Ry. Co., 85 Mo. 263, (1884); Dis- trict of Columbia v. Washington. & Georgetown R. R. Co., 4 Am. & Eng. R. Cas. 161, (1882); Farrer v. St. Louis, 80 Mo. 379, (1883); New- Orleans Gas Light Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. Rep. 252, (1885); Greenwood v. Freight Co., 105 U. S. 13, (1881); New Jersey v. Yard, 95 TJ. S. 104, (1877); City of Burlington v. Bur- lington St. R. R. Co., 49 Iowa 144, (1878), and sees. 36, 40, ante, and cases there cited. ° An ordinance granting the privi- lege of a borough street to a street car company, and providing that the company shall reconstruct the street with the same material used by the borough on the remaining portion, requires but one such re- construction; the company cannot be compelled to pay the expense of a subsequent change of material. Norristown Bor. v. Norristown Pass. Ry., 9 Pa. Co. Ct. Rep. 98, 6 Montg. 185, (1890); Norristown Boro. V. Citizens Pass. Ry. Co., 9 Pa. Co. Ct. Rep. 102, (1890). An ordinance of the city of Norris- town under which a street railway company was allowed to occupy its streets contained the follow- ing provisions: "That said railway company shall reconstruct the said streets upon which said railway tracks are laid with the same kind of material used by the said bor- ough authorities in the remaining portion of said streets between said tracks, and at least one foot addi- tional on the outside of each of the rails of said company, and keep the same in good order and repair throughout the entire length there- of. And, provided, * * * that in the event of said railway company using any street not macadamized by said borough, that in that event, the said railway company shall use the material furnished by the said borough authorities in constructing the same between the tracks of said company, and for at least one foot outside of each and every rail of said company, and thereafter keep the same in good order and repair throughout the entire length there- of; but nothing herein contained shall be construed to compel the 410 THE LAW OF STEBET EAILWAYS. [§ 246. §246. Repairs between tracks. — Unless otherwise provided by statute or ordinance, the space to be kept in repair is that portion of the street which is disturbed in laying the rails. Therefore, the company would not ordinarily be required to pave or repair the space between the inner rails of double tracks unless it clearly appeared that that part of the pavement had been removed when the road was constructed, which must depend in any given case upon the proximity of the parallel tracks. Under a Missouri statute, which required the payment of a car license, and provided that it should be "in lieu of all taxes, burdens, expenditures and repairs of streets outside of their tracks, re- quired of such companies by former laws and ordinances," a question arose as to the obligation of the company to repair the space between the inner rails of its parallel tracks. It was held that no such obligation existed, because that space was not between its tracks but outside of each, and that, therefore, the repairs must be made by the city and not by the company.'^ But in ISTew York it has been decided that a company owning and operating a double track railway and required by ordinance to pave and keep in repair the streets in and about its rails, must borough authorities to macadamize the company to repave the street or grade any street, or furnish any from time to time as the municipal material to said company to macad- authorities might direct, and that amize any street, between the it was only required by the express tracks of said company, until said terms of its agreement to recon- borough directs all of the said struct or lay one new pavement street to be macadamized." Tne after laying its tracks, and to keep company, after completing its road, that pavement in good order and reconstructed the street with the repair. Norristown v. Norristown same material then used by the Pass. Ry. Co., 148 Pa. St. 87, 23 city. Subsequently the pubuc Atl. Rep. 1060, (1892). In relaying authorities determined to pave the a pavement, a company can use intersection of the streets with Bel- whatever old material is suitable gian blocks, and, after notice to for that purpose, and a munici- the defendant, and upon its refusal pality cannot remove all the old to repave, the city performed the material on the theory that the work and brought an action of street should be entirely repaved assumpsit to recover the expense, with new material. Detroit v. But the court held that the obliga- Detroit R. R. Co., 134 Mich. 15, 99 tion to "reconstruct the said street N. W. Rep. 411, (1904). * * * and keep the same in good ' City of St. Louis v. St- Louis R. order and repair," did not require R. Co., 60 Mo. 94, (1872). § 247.] PAVING AITD KEPAIE OP STEEETS. 411 pave and keep in repair so much of the space hetween its tracks as was disturbed in the original construction of the road; and, where the extent of the distiirbance is at least eighteen inches from each rail, which would leave little, if any, of the surface to be paved and repaired by the city, the company is bound to keep in repair the whole space between its inner rails.^ § 247. Obligation to pave whole roadway. — When the act of incorporation provides that the company shall be subject to an ordinance which requires all passenger railway companies to be at the entire cost and expense of paving, repairing and repaving, "on any street occupied by it," its duty to repair or repave extends not merely to the space between the tracks, but to the entire roadway from curb to curb.® But under a contract requir- ing a company to keep in good order and condition from curb to curb the streets, intersections and bridges, through which its tracks pass, it is not under any obligation to keep in such condi- tion the streets on which its tracks do not pass and which extend along and border on middle or neutral ground dividing them, comprised between curbs or external lines, and which do not form part of the thoroughfares which vehicles are permitted to use. Under such a contract, applied to streets of that character, the obligation extends only to the streets and parts of streets on which tracks actually pass.'''' * Mayor v. Second Ave. Ry. Co., (1883) ; Ridge Ave. Pass. Ry. Co. v. 102 N. Y. 572, (1886), affirming 31 Philadelphia, 124 Pa. St. 219, Hun 241, (1883); New York v. Har- (1889). The same construction has lem Bridge Ry. Co., 186 N. Y. 304, been given to a statute providing 78 N. E. Rep. 1072, (1906). that the company should be at "the " Philadelphia v. Ridge Ave. Pass, expense of all the paving, repair- Ry. Co., 143 Pa. St. 444, 22 Atl. ing and repaving that may be Rep. 695, (1891) ; Philadelphia v. necessary on the streets occupied Evans, 139 Pa. St. 483, (1891). by it." Philadelphia & Gray's The liability of the company to Ferry Ry. Co. v. Philadelphia, 11 pave and repair the entire roadway Phila. 358, (1876) ; Philadelphia v. has been repeatedly enforced in Thirteenth and Fifteenth Sts. Pass. Pennsylvania. Railway Co. v. City Ry. Co., 169 Pa. St. 269, 33 Atl. of Philadelphia, 2 W. N. C. (Pa.) Rep. 126, (1895). 639, (1876); Thirteenth & Fifteenth "State ex rel. v. New Orleans Streets Pass. Ry.. Co. v. City of City & Lake R. R. Co., 42 La. Ann. Philadelphia, 13 W. N. C. (Pa.) 487, 550, (1890). 412 THE LAW OF STEEET EAILWATS. [§ 248. §248. Eepair of bridges. — Where the charter of the com- pany requires it to repair such portions of all bridges in the city as are occupied by its tracks, and it occupies a bridge which has been built over a canal to which it is appurtenant and which the proprietor of the canal is required to keep in repair, it has been held in Massachusetts that if the part of the bridge thus occupied becomes out of repair, and a recovery is had against the canal proprietor by the city for the expense of repairs, he may recover from the company the amount of damages recovered by the city In' a case since aflBrmed it was decided by the supreme court ot Pennsylvania that the street rail- way company, and not the abutting owners, was liable for the cost of paving a space formerly occupied by market sheds. The company was incorporated in 1864 by an act which authorized it to lay its tracks on certain streets and pro- vided that it should be at the entire cost and expense of all the paving, repaving and repairing that might be necessary upon any streets where its tracks were laid. For many years a portion of one of the streets which it occupied had been covered by market sheds; but in 1890, upon the removal of those structures, that part of the street was paved with granite blocks under a city ordinance, the con- tractor accepting assessment bills on the owners of abutting property in payment for the cost of his work, without recourse on the city. In an action by him to enforce the assessment, the owners of the abutting property denied their lia- bility, on the ground that they were relieved by the obligation to pave which had been assumed by the street railway company. It was contended on behalf of the lat- ter that it could not be required to pay for new paving, which was of no benefit to it, and which was not due either to the construction or the operation of its road, and that while such a liability could be asserted as between it and the city, it could not be enforced for the relief of the property owners, who alone were specially benefited by the improvement. The court held, however, that notwithstand- ing the facts here outlined, which were plead in its defense, under the statute by which it was created and the ordinances of the city, the street railway company alone was liable for the cost of the pavement from curb to curb, including the portion which had so long re- mained unpaved while used and oc- cupied for private purposes. Philadelphia v. Spring Garden Farmers' Market Co., 49 Leg. Intel. 154, affirmed 154 Pa. St. 93, (1893); 161 Pa. St. 522, (1894). Where the charter provides that the company must obtain the con- sent of the city council, and shall be required to keep so much of the streets as are used "in perpetual good repair from curb to curb their whole length," the company is bound to remove from the streets the dirt and filth neces- sarily accumulating thereon from their ordinary use as public thor- oughfares. Pittsburgh & Birming- ham Pass. R. R. Co. V. Birmingham, 51 Pa. St. 41, (1865). §§ 249, 250.J PAVING AND EEPAIE OF STEEETS. 413 from him, and the judgment may include his costs if he defends the suit at the request of the company or for its benefit after notice to come in and defend.^^ As between the city and the company, as parties to an agreement by which the latter is required to construct and maintain bridges used by the com- pany and forming part of its right of way, this duty may be enforced in Louisiana by mandamus on the relation of the city.^^ §249. Failure to designate who shall control repairs. — If the ordinance imposes the duty to make repairs under the direc- tion of such competent authority as the common council niiay designate, either party may waive the selection of the authority ; and where the company accepts the grant and from time to time makes repairs, its subsequent failure to discharge the obligation may be enforced by an action at law upon its bond.''^® § 250. Extent of the duty to repair — ^As stated elsewhere,^* the duty to repair, which exists independently of the specific assumption of that obligation, extends to every part of the street which is disturbed in the construction, relaying or repair of the tracks. That part of the street must be restored and maintained in sueh a condition that the presence of the rails will not cause any unnecessary obstruction to the use of the street. The duty resting upon the company cannot be waived, either wholly or in part, by the municipal corporation, without express legislative authority. But either the legislature or the city may enlarge the common law duty of the company by requiring any other part, or the whole, to be kept in repair, when such a requirement would not conflict with its vested rights fixed by statute or ordinance. In such cases the extent of the duty must be determined by "Proprietor of Locks v. Lowell "Brooklyn v. Brooklyn City R. Horse R. R. Co., 109 Mass. 221, R. Co., 57 Barb. 497, (1870) ; Brook- (1872). lyn v. Brooklyn City R. R. Co., 47 See Berks County v. Reading N. Y. 475, (1872); in whicli it was City Pass. Ry. Co., 167 Pa. St. 102, said: "Such a clause is simply a 31 Atl. Rep. 474, (1895). reservation of a right of super- " State ex rel. v. Canal & Clai- vision of the work as it progresses, borne St. R. R. Co., 44 La. Ann. and does not prevent its perform- 526, 10 So. Rep. 940, (1892). See ance." also sec. 261, post. "Ante sec. 241. 4:14 THE LAW OF BTEEET KAILWATS. [§ 251. reference to the terms of the charter or granting ordinance. In the absence of any speciiic requirement, it has heen decided that the common law duty to repair extends at least to the ends of the cross-ties.^^ The obligation created by ordinance to main- tain the street in good repair, in and about the rails of a single track road, has been held to mean between the rails and one foot on either side thereof;,^® and a like obligation, construed with reference to a double track road, to include the whole space between the parallel tracks." § 251. Repaying — when cost of material chargeable to city Under an ordinance requiring the company to "keep the surface of the street inside of the rails and for two feet four inches outside thereof in good order and repair, provided, however, that upon the paved portion of said streets the material for re- paving should be supplied at the expense of the city," where the latter directs the company to "raise and repair" that portion of the pavement which is within the rails, after it has become so worn and dilapidated that a reconstruction with new materials is essential, the city is bound to bear the expense of the materials, because such repairs amount to repaving, within the meaning of the ordinance.^* " Memphis, Prospect Park & side of that part of the street actu- Belt R. R. Co. V. State, 87 Tenn. ally occupied hy it. 746, (1889). The portions of the See also Amsterdam v. Fonda Ry. streets occupied by a street rail- Co., 101 N. Y. Supp. 694, (1906); way company must be kept in good 104 N. Y. Supp. 411, (1907). condition by it although there be "Mayor v. Second Ave. Ry. Co., no express contract or statutory 102 N. Y. 572, (1886); New York direction to that effect. Reading v. Harlem Bridge Ry. Co., 186 N, V. United Traction Co., 215 Pa. St. Y. 304, 78 N. E. Rep. 1072, (1906); 250, 64 Atl. Rep. 446, (1906). See Smell v. Rochester Ry. Co., 64 Hun also Chicago Union Trac. Co. v. 476, (1892). Case, 129 111. App. 451, (1908). See also City of Mobile v. Mobile " McMahon v. Second Ave. R. R. St. Ry. Co., 141 Ala. 442, 38 So. Co., 75 N. Y. 231, (1878). In Indian- Rep. 127, (1904); Hyde v. Boston, apolis Ry. Co. v. Pressell, 39 Ind. 186 Mass. 115, 71 N. E. Rep. 118, App. 472, 77 N. E. Rep. 357, (1906), (1904). it was held that a company is not " Ft. Wayne & Elmwood Ry. Co. charged with the maintenance of v. Detroit, 34 Mich. 78, (1876). streets occupied by its tracks out- Said Cooley, C. X, delivering the 252.] PAVING AND EEPAIB OF STREETS. 415 §252. Duty to pave in case of extension. Although the charter of a company does not require it to pave, when it obtains the right to extend its line the city may impose any reasonable conditions, among others, that it shall pave the portion of the street which it uses, not only the tracks embraced within the extension, btit also in the streets previously occupied by it.^" But the right to extend does not, by implication, impose upon the grantee the same duties with reference to the streets traversed by its extension as it assumed on its original route. Accord' ingly, if the act or ordinance granting the extension is silent as to the duty of paving, that obligation will not be inferred from the mere fact that the company is required to pave the right of way acquired under a previous grant. ^^ opinion in tliat case: "It is claimed on the part of the city that the proviso in the ordinance ap- plies only to the repaying of the whole street; and that any require- ment which falls short of this is to be understood as a requirement of repairs only. Such a construc- tion would put It in the power of the city to nullify the proviso entirely. A street may not all require repaying when a part of it does, and it is competent to order one part repaved while the remain- der is left for further use with the existing pavement. If that is a repavement under the proviso only when the whole street is ordered repaved, the city has only to order the railway company from time to time to repair that portion of the street specified in the ordinance, and then hy excepting that portion from any ordinance for repaving the street, It may succeed in reliev- ing the city of the whole burden of keeping the part set apart for the railway company in condition for use at all times, because as to that part there would then be no repavement in the sense contended for. This could not have been the intent of the ordinance." The same question arose again in Ft. Wayne & Elmwood Ry. Co. v. Betroit, 39 Mich. 543, (1878). The city having refused to furnish any kind of material, the company, without objection from the city, used cobble stone, and was per- mitted to recover the cost of the materials from the city. "Frankford & Southwark Phila- delphia City Pass. Ry. Co. v. Phila- delphia, 17 W. N. C. (Pa.) 245, (1886). The duty of the company may be enlarged by subsequent ordinance with reference to tracks already laid, if the ordinance imposing the additional burden is accepted by the company. Detroit v. Detroit City Ry. Co., 37 Mich. 558, (1877). ''"A company was required to pave in and about its rails in a per- manent and satisfactory manner. Subsequently the legislature passed an act authorizing and requiring it to extend its line, and providing that in the construction, use and operation of the tracks and exten- siens therein authorized, the com- 416 THE LAW OI' STEEET EAILWAYS. [§ 253. § 253. Ctange of grade — ^relaying tracks rendered necessary by construction of new pavement.— Where the franchise requires that the tracks shall conform to the grade of thei street, the com- pany is required to conform to a new grade at its own expense.^^ When a new pavement is Md on the whole roadway, in- ckiding the portion of the street occupied by railway tracks, whether the company is required to lay that part of the pave- ment at its own expense or not, it must, during the construction of the new pavement, relay its tracks and readjust them to the changed conditions in the street, when that course is necessary in order that the tracks may conform to the street as improved. This obligation exists independently of any express statutory requirement or any specific agreement with the municipal authorities, and arises from, or is one of the incidents of, its common law obligation to maintain its tracks so as not to create an obstruction to other travelers or to interfere unnecessarily with the general public in the safe and convenient use of that portion of the street.'^^ pany should have the same rights and privileges which it then possessed and exercised under former grants and laws. It was decided that its acceptance of the grant did not carry with it any duties or obligations not expressly stated in the act, and that, as the statute was silent on the subject, the company was under no obliga- tion to pave or repair beyond its original line. Mayor v. New York & Harlem R. R. Co., 19 N. Y. Supp. 67, (1892). But see City of New York v. Harlem Bridge Ry. Co., 186 N. Y. 304, 78 N. B. Rep. 1072, (1906), holding that where a company was authorized to construct an exten- sion by an amendment which con- tained no provision for repair or repaving, such extension was sub- ject to the obligations contained in the original act as amended as to the duty to repair and to pave. See also Mayor v. Eighth Ave. R. R. Co., 7 App. Div. (N. Y.) 84, (1896). An ordinance requiring a com- pany to keep in good repair all that part of the street occupied by its tracks, includes additional tracks to be laid, as well as those already laid and in operation. Montgomery St. Ry. Co. v. Smith, 146 Ala. 316, 39 So. Rep. 757, (1905). ^Little Rock v. Citizens' St. By. Co., 56 Ark. 28, (1892). See also McKeesport v. McKeesport By. Co., 158 Pa. St. 447, (1893). ^District of Columbia v. Wash- ington & Georgetown By. Co., 1 Mackey 361, (1882); Columbus v. Columbus St. Ry. Co., 45 Ohio St. 98, (1887) ; Western Paving & Sup- ply Co. v. Citizens' St. Ry. Co., 128 Ind. 525, 26 N. E. Rep. 188, (1891), in which the court held that al- though it was the duty of the com- § 254.J PAVING AND EEPAIE OF STREETS. 417 §254. Necessity, time and chaxacter of improvement — who to determine — The necessity for repairing or repaying the streets is to be determined by the municipal corporation; and the city may also determine the time when, and the material with which, the paving shall b© done, and may require it to be done with a better and more expensive material than that in us© when the company was chartered.^^ But, while the city may exercise its pany to adjust its tracks in such a maimer as to conform to the street in its improved condition, it was not liable to pay any portion of the cost of making the new pavement; Louisville City Ry. Co. V. Louisville, 8 Bush. (Ky.) 415, (1871), deciding that the company was required to take up crescent rails and put down tramrails as the construction of the new pave- ment progressed. The municipality is responsible for the condition of its streets, and stands in the relation of surety for the performance by the companies of their obligation to keep their roads in good condition. Hence, on default being made, it may at once do the work and sue in as- sumpsit for the cost, on the same theory that a surety, who dis- charges the defaulted obligation of his principal, does so upon his implied request and upon his im- plied promise to indemnify. Dis- trict of Columbia v. Washington & Georgetown Ry. Co., 4 Mackey 214, (1885); District of Columbia V. Metropolitan R. R. Co., 8 App. Cas. (D. C.) 322, (1896). ^Philadelphia v. Ridge Ave. Pass. Ry. Co., 143 Pa. St. 444, 22 Atl. Rep. 695, (1891) ; Columbus V Columbus St. R. R. Co., 45 Ohio St. 98, (1887) ; Phoenixville v. Phoenix Iron Co., 45 Pa. St. 137, (1863) ; Farmers' Loan & Trust Co. V. Borough of Ansonia, 23 Atl. Rep. 705, (1891); Philadelphia v. Spring 27 Garden Farmers' Market Co., 161 Pa. St. 522, (1894) ; Mayor v. Johns Hopkins Hospital, 56 Md. 1, (1880), overruling Mayor v. Scharf, 54 Md. 499, (1880) ; Lansing v. Lansing City Elec. Ry. Co., 109 Mich. 123, 66 N. W. Rep. 949, (1896); McKeesport V. Pittsburg Ry. Co., 213 Pa. St. 252, 62 Atl. Rep. 1075, (1906). When an improvement shall be made is necessarily involved in the question whether or not it will be beneficial to the property on which the cost will be assessed. The lat- ter question is left exclusively to the judgment of the municipal officers, and their determination is final and conclusive, unless the assessment so far transcends the limits of equality and reason that it would be the duty of the court to interfere to protect the citizen. Mayor v. Johns Hopkins Hospital, supra. In the course of an elaborate opinion, in which the Pennsylvania cases are reviewed, Sterrett, J., in Philadelphia v. Ridge Ave. Pass. Ry. Co., supra, asks, and answers, a very important practical question as follows: "By whom is the necessity for repairing or repaving, etc., to be determined? Certainly not by the company itself, but by the munici- pal authorities. As a general rule, it is their special province to determine when repaving Is needed and how it shall be done, whether with the same kind of material as 418 THE LAW OF STEEET EAILWATS. [§255. legislative discretion as to when the improvement shall be made and the material with which it shall be constructed, if this power be used in an arbitrary manner, the company cannot be com- pelled to pave or to bear the expense of the improvement.^* § 255. liability of the municipality — The duty incumbent on a public corporation, to maintain its streets in a safe condition, cannot be evaded by granting a franchise therein to another. How- ever stringent the conditions it may impose, however explicit the obligations it may exact for the benefit of the general public, it cannot by ordinance or contract relieve itself from liability for the culpable negligence of one who, in the exercise of a street franchise, creates an obstruction which results in damages to others who are lawfiilly using the highway. The right to control carriesi with it the duty to guard, care for and preserve. By before, or with, a different and better material. It was never intended to transfer the duty of determining these matters, or either of them, from the municipal authorities to any one else. The proposition that, because cobble- stone was the kind of pavement ordinarily in use when defendant company was chartered, it is in no event bound to repave with any other and more expensive kind of material, etc., is wholly unten- able. It cannot be entertained for a moment. It was never contem- plated that the railway company would continue to exist and per- form its corporate functions in a cobble-stone age. It was called into being with the view of prog- ress. The duties specified in its charter were imposed with refer- ence to the changes and Improved methods of street paving which ex- perience might sanction as superior to and more economical than old methods. In other words, the com- pany is bound to keep pace with the progress of the age in which it continues to exercise its cor- porate functions. The city authori- ties have just as much right to re- quire it to repave at its own ex- pense with a new, better and more expensive kind of pavement as they have to cause other streets to be repaved in like manner at the pub- lic expense." =» Atlanta v. Gate City R. R. Co., 80 Ga. 276, (1877); Mayor t. Second Ave. R. R. Co., 102 N. T. 572, (1886); District of Columbia V. Washington & Georgetown Ry. Co., 1 Mackey 361, (1882); District of Columbia v. Washington & Georgetown R. R. Co., 4 Mackey 214, (1885). In City of Bingham- ton V. Binghamton P. & D. Ry. Co., 16 N. y. Supp. 225, (1891), it was held thai? the enactment of an ordi- nance requiring a company to pave creates no presumption of the ne- cessity of the improvement. Such discretion will not be inter- fered with merely because the municipal authorities direct the street to be paved in December, and so increase the cost over what §256.] PACING AND EEPAIR OF STREETS. 419 granting a railway franchise it does not surrender its right to con- trol its streets or transfer its obligation to maintain them. The gTantee of the franchise has only a qualified right in the streets, subject always to the right of the public authorities to compel it to repair or, on its default, to make necessary repairs and recover the expense. Therefore, the municipality is directly liable for injuries caused by defects in its streets if, after actual or constructive notice, it fails to exercise reasonable care and dili- gence to remedy them.^" § 256. Recovery over by the city — If the street is permitted to remain in an unsafe condition in violation of an express or imiplied duty to pave or repair, and, in consequence of that neglect, injuries result to travelers upon the street on account of which the city is held primarily liable, it may recover from the company the amount of the judgment so obtained against it.^^ it would have been if done at a different season. Philadelphia v. Evans, 139 Pa. St. 483, (1891). " So held where a street railway company had, a year before an acci- dent, abandoned its tracks which were left protruding above the level of the street. Adams v. City of Halifax, 13 Nova Scotia Law Repts., (1 Russell & Gelder) 344, (1880). See also sec. 256, post, and cases there cited; Mechanicsburg V. Meredith, 54 111. 84, (1870) ; Dil- lon Mun. Corp. (4th Ed.), sec. 1037; McKillop V. Duluth St. Ry. Co., 53 Minn. 532. 55 N. W. Rep. 739, (1893); Baumgartner v. Mankato, 60 Minn. 244, 62 N. W. Rep. 127, (1895); Rockford City Ry. Co. v. Matthews, 50 111. App. 267, (1893); Kennedy v. Lansing, 99 Mich. 518, 58 N. W. Rep. 470, (1894); Law- rence V. New Bedford, 160 Mass. 227, 35 N. E. Rep. 459, (1893) ; Col- lins V. Greenfield, 172 Mass. 78, 51 N. E. Rep. 454, (1898); Lane v. City of Syracuse, 12 App. Div. (N. Y.) 118, (1896); Higgins t. Brooklyn, Queens Co. & Sub. R. R. Co., 54 App. Div. (N. Y.) 69, (1900) ; Doyle v. City of New York, 58 App. Div. (N. Y.) 588, (1901). But see Schaefer v. Pond du Lac, 99 Wis. 333, 74 N. W. Rep, 810, 41 L. R. A. 287, 11 Am. & Bng. R. Cas. (N. S.) 342, (1898), where it was held that a claimant for damages is required to exhaust all legal remedies against the com- pany, whose neglect of duty caused the defective condition of the street, before he can p'^oceed against the municipality. ""■It has been held that the ex- pense incurred by the city in de- fending such an action is a proper item In its recovery against the private corporation. Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475, (1872). In this case the com- pany had given the city a bond in- demnifying it against loss by rea- son of failure to maintain the street in a proper state of repair. 420 THE LAW OF STREET EAILWAYS. [§ 257. § 257. Recovery by city on company's default. — ^Where the company is under obligation to pave the portion of the street occupied by it at its own expense in the same manner and at the same time the remainder of the street is improved, and this duty is to continue throughout the life of its franchise, on failure to discharge that obligation when a new pavement is to be laid on the street, the city may cause the company's portion of the work to be done and recover the reasonable cost thereof by action against it f^ and it is not essential to the liability of the latter that the notice to make the improvement preceded the letting of the contract by the city if, after notice, an opportunity be given the company to do the work. And where the company, under such circiimstances, permits the city without objection to make the improvement, including the adjustment of the railway track to conform thereto, the city may recover the reasonable cost of the necessary changes in the track, as well as the cost of making the pavement.^^ The rule governing the construction of new pave- To the same effect also see Carty V. City of London, 9 Can. Law Times 449, (1889). See also Dillon Mun. Corp. (4tli Ed.), sec. 1035; Shearm. & Red. Neg. (Sth Ed.), sec. 301; 2 Thomp- son, Commentaries on Law of Neg- ligence, sec. 1367; Mayor v. Troy & Lansingburg R. R. Co., 49 N. T. 657, (1872), holding that where the company refuses to come in and defend, the record of the judgment against the city is conclusive as to the company's liability and as to the amount the city is entitled to recover. Where a municipality has con- tracts with two companies to pave a street occupied by both, it may sue one company for all and leave it to its remedy against the other for contribution, or it may sue each for one half in assumpsit. Phila- delphia V. Second and Third Sts. Pass. Ry. Co., 13 Pa. Co. Ct. Rep. 580, (1893). The burden of proof is upon the municipality to show that the company was in fault be- cause of a failure to comply with an ordinance, and the record in tlie first suit does not make out a prima facie case for the munic- ipality. City of St. Joseph v. Union Ry. Co., 116 Mo. 636, (1893). See also Waterbury v Waterbury Trac. Co., 74 Conn. 152, (1901). "See Philadelphia v. Thirteenth and Fifteenth Sts. Pass. Ry., 169 Pa. St. 269, 33 Atl. Rep. 126, (1895), where an ordinance empowered councils "to forbid the running of any car or cars" until the paving or repaving "is fully complied with." =» Columbus V. Columbus St. R. R- Co., 45 Ohio St. 98, (1887); Cleve- land V. Cleveland & Newburg E. R. Co., 1 Clev. Rep. 304, (1878); Dis- trict of Columbia v. Washington & Georgetown Ry. Co., 1 Mackey 361, (1882); Thirteenth & Fif- teenth Sts. Pass. Ry. Co. v. Phila- delphia & Esterbrook Ry. Co., 13 W. N. C. (Pa.) 487, (1883); Frankford & Southwark Philadelphia City Pass. §258.J PAVINQ AND EEPAIE OF STREETS. 421 ments, under the circumstances here stated, applies also to the making of repairs/^ but a municipality cannot recover for such repairs unless they be reasonable, necessary and proper.^" § 258 Measure of damages recoverable from company The city is entitled to recover from the company on its default only the reasonable cost of making repairs or constructing pavements for which the company is liable, and the latter may deny the reasonableness of the amount which the former seeks to recover ; but the sum actually expended by the city is prima facie the amount of its damages, and, in the absence of fraud or proof that the charges are excessive, the amount expended will measure the amount of the recovery. ^-^ Ry. Co. V. Philadelphia, 17 W. N. C. (Pa.) 245, (1886); District of Colum- bia V. Washington & Georgetown R. R. Co., 4 Mackey 214, (1885) ; Mayor V. Second Ave. Ry. Co., 102 N. Y. 572, affirming 31 Hun 241, (1883); Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475, (1872); Phila- delphia & Gray's Ferry Pass. R. R. Co. y. Philadelphia, 11 Phila. 358, (1876); Mayor v. Johns Hop- kins Hospital, 56 Md. 1, (1880), holding that no previous notice is necessary, and overruling Mayor v. Scharf, 54 Md. 499, (1880), on that point. See District of Columbia v. Metropolitan Ry. Co., 8 App. Cas. (D. C.) 322, (1896) ; Atlanta Consol. St. Ry. Co. v. Atlanta, 111 Ga. 255, (1900) ; Fair Haven Ry. Co. v. New Haven, 75 Conn. 442, (1902); Rochester Ry. Co. v. Rochester, 205 TJ. S. 236, 27 TJ. S. Sup. Ct. 469, (1906) ; Reading v. Reading St. Ry. Co., 215 Pa. St. 132, (1906). See Trenton v. Trenton St. Ry. Co., 72 N. J. L. 318, 63 Atl. Rep. 1, (1905), in which action was brought for damages by the municipality. In Philadelphia v. Hestonville Ry. Co., 203 Pa. St. 38, (1902), notice was held to be a prerequisite. =° New Haven v. Fairhaven & Westville R. R. Co., 38 Conn. 432, (1871). Where an ordinance requires a company to pave its track and two feet four inches on either side thereof at its own expense, if the city paves the street contempora- neously with the construction of the railway, the company is liable only for its portion of the paving, and is not assessable for any part of the excavation. Fort St. & Blmwood R. R. Co. V. Schneider, 15 Mich. 74, (1866). »"> Reading v. United Trac. Co., 215 Pa. St. 250, (1906). "^ Mayor v. Second Ave. Ry. Co., 102 N. Y. 572, (1886), affirming 31 Hun 141, (1883). See also, to the same effect. Vulcanite Paving Co. V. Philadelphia Traction Co., 115 Pa. St. 280, (1886), in which the company had agreed to pay one- fifth of the cost of grading and paving the whole of the road-ways around the City Hall and on cer- tain streets, but refused to pay the amount claimed because the work was not properly done. See also Oconto V. Chicago & Northwestern Ry. Co., 44 Wis. 231, (1878). 422 THE LAW OF STEEET RAILWAYS. [§259. § 259. When the company may be excused from paving ^A provision in a municipal charter, empowering the city to require companies to pave certain portions of the streets, is permissive and not mandatory; and the failure to exercise the power will not constitute a defense to abutting property owners in an action against them for a recovery of the whole expense of pav- ing the street, including the portion occupied by tracks; nor, under such circumstances, would the omission of the company to pave render it liable in damages, either to the city or to the owner of property against which the cost of improvement has been assessed.*^ " Gilmore v. City of Utica, 121 N. Y. 561, (1890), reversing 55 Hub 514. In this case the company was permitted to lay its tracks in the street upon the condition that it should "replace and keep in good repair the pavement between, and at least two feet in width on each outer side of the tracks." It was held that this was a contract, and not a statutory obligation on the part of the company, and, in case of its refusal or neglect to perform it, the only remedy of the city was by action; that, as the contract was with the city and not the abutting owners, the city could enforce or omit to enforce it, and could en- tirely release or discharge it; and that the city was not prevented thereby from paving the whole street and laying the assessment for two-thirds of the expense thereof upon the abutting property. The statute authorized the common council to require street railway companies to pave "whenever the council shall deem necessary;" this was held to leave the enforcement of the obligation discretionary. See also Lacey v. Marshalltown, 99 la. 367, 68 N. W. Rep. 726, (1896). In an early New York case the court held that where the company had expressly agreed to keep its tracks in repair, as one of the con- ditions upon which it was per- mitted to lay them, the city authorities had power nevertheless to absolve the company from the performance of such duty; and that the failure of the city to re- quire the company to perform its contract did not render invalid an assessment upon abutting property for the neccessary repairs. People ex rel. v. City of Brooklyn, 65 N. Y. 349, (1875). The same rule ob- tains in Texas. Galveston v. Gal- veston City Ry. Co., 46 Tex. 435, (1877). See also West Chester Borough V. West Chester St. Ry. Co., 203 Pa. St. 201, (1902). If the company is bound by con- tract to plank all the mud streets occupied by it, the city may be estopped from enforcing the obli- gation by entering into a contract with a street-paving company to pave the streets with a different material. State ex rel. v. St. Charles St. Ry. Co., 44 La. Ann. 562, 10 So. Rep. 927, (1892). See also Atlanta Consol. St. R. Co., v. Atlanta, 111 Ga. 255, (1900) ; Leary V. Boston Ry. Co., 180 Mass. 203, 24 Am. and Eng. R. Cas. (N. S.), 481, §§ 260, 261. J PAVING AND eepAir of steeets. 423 § 260. Remedy by indictment. — A company failing to repair and thereby obstructing travel is indictable at common law for maintaining a nuisance, and, upon its failure to abate the nuisance, the obstrnction may be removed by order of court.*^ So a prosecution against a company for a misdemeanor will be sustained, where that penalty has been prescribed in an ordinance to which the company has given its assent.^* §261. Remedy by mandamus — The purpose of the writ of mandamus is to enforce the performance of duties created by law, and ordinarily it will not lie to compel the performance of obligations arising from contract.*^ But it will issue at the instance of a private individual against a corporation, to compel the performance of a clear duty enjoined by law. Thus a railroad company may be compelled to construct its road in the manner and on the roiite prescribed in its charter.^* So the duty to pave and repair may be enforced by mandamus, even where it rests solely upon an agreement with the public authorities, when that (1902); Blnninger v. City of New York, 177 N. Y. 199, 69 N. B. Rep. 390, (1904); City of New York v. Harlem Bridge Co., 100 App. Div. (N. Y.) 257, 91 N. Y. Supp. 557, (1905). "In a case in which a company had been indicted for permitting its tracks, ties and rails to remain above the surface of the street, it was said: "The charter of this company shows that it was in- tended that the street occupied by it should be used by the public as a highway, the right of way being given to the defendant's cars. Its common law duty required it to keep the streets of the highway occupied by its road-bed (which ex- tends at least to the ends of its cross ties) properly graded and in good repair, so as not to be any obstruction to the travel across the road-bed or longitudinally upon it, and also to keep the crossings. where its road-bed is traversed by streets, in good repair," per Dick- inson, Ch. J., in Memphis, Prospect Park & Belt R. R. Co. v. State, 87 Tenn. 746, (1889). " St. Louis V. Missouri Ry. Co., 87 Mo. 151, (1885). =^ Gilmore v. City of Utica, 121 N. Y. 561, (1890); State ex rel. v. New Orleans & Carrollton R. R. Co., 37 La. Ann. 589, (1885); Benson v. Paull, 6 El. & Bl. 273, (1856) ; State V. Republican R. R. Co., 20 Kan. 404, (1878); People v. Dulany, 96 III. 503, (1880); Kobey v. Hakes, 54 Conn. 274, (1886); State v. Salem Church, 114 Ind. 389, (1887); State V. Paterson, N. & N. Y. R. R. Co., 43 N. J. L. 505, (1881); State v. Einstein, 46 N. J. L. 479, (1884); Kennedy v. Board of Education, 82 Cal. 483, (1890). =» State V. Paterson, N. & N. Y. R. R. Co., supra. See also sec. 65, ante, and cases there cited. 424 THE LAW OF STEEET RAILWAYS. [§261. proceeding is authorized by statute to compel specific perform- ance of contractual obligations.^^ This remedy is permitted where the duty to pave or repave is imposed by the act of incorporation, even where a remedy by indictment exists. ^^ But if there be an adequate legal remedy, at common law or provided by the stat- ute imposing the duty, the writ will not issue. ^® As mandamus is a harsh remedy, legislation, which has for its object the applica- tion of the ■writ to things not hitherto inchided within its scope, should be strictly construed. Consequently, an act providing a summary remedy by mandamus, to enforce obligations with refer- ence to the paving, repairing, reconstructing or care of streets, will not extend to an obligation to construct a new levee or em- bankment.*" ''' State ex rel. v. New Orleans City Pass. Ry. Co., 42 La. Ann. 550, (1890); State ex rel. v. St. Paul, Minneapolis & Manitoba R. R. Co., 35 Minn. 131, (1886); State ex rel. City of Jacksonville v. Jacksonville St. R. R. Co., 29 Fla. 590, 10 So. Rep. 590, (1892). So Where the company agreed "at its own cost, charges and expense for all material and labor, and without indemnity or right of reclamation, to construct and maintain all street bridges where crossed by said company's tracks, and at all times to keep such crossings, bridges, culverts, where crossed, in first-class order, and shall also keep and maintain two feet of the street on the outer side of each rail of their tracks in good order and condition," the con- tract was construed to require the company to keep the bridges in repair, and not simply the portions under or between the rails. State ex rel. City of New Orleans v. Canal & Claiborne St. R. R. Co., 44 La. Ann. 526, 10 So. Rep. 940, (1892). A writ of mandamus will not issue to compel performance of an act when it is apparent that the company against whom it Is directed cannot comply, for instance where the company has no funds with which to pay cost of paving. Benton Harbor v. St. Joseph & Benton Harbor St. Ry. Co., 102 Mich. 386, 60 N. "W. Rep. 758, 26 L. R. A. 245, (1894). See also Lansing v. Lansing City Elec. Ry. Co., 109 Mich. 123, 66 N. W. Rep. 949, (1896); Rutherford v. Hudson River Trac. Co., 73 N. J. L. 227, 63 Atl. Rep. 84, (1906); People v. Geneva Trac. Co., 112 App. Div. (N. Y.), 581, (1906). See also sees. 59, 65, ante. In People v. Geneva W. S. F. & C. L. Trac. Co., 98 N. Y. Supp. 719, (1906), it was held that a city may compel a temporary change of loca- tion by mandamus. "Halifax v. City Pass. By. Co., 1 Russ. 319, (1878). »» State ex rel. v. New Orleans & Carrollton R. R. Co., supra; Gil- more V. City of Utica, supra; Mer- rill on Mandamus, sec. 53, and cases cited. « State ex rel. v. New Orleans & N. B. R. R. Co., 42 La. Ann. 138, ''1890). §§ 262-264.] PAVING AND EBPAIE OF STREETS. 425 §262. Direct liability for injuries sustained The liability of the company may be enforced directly in an action against it by one who has sustained damages on account of its failure to pave or repair as required by statute, ordinance or agreement with the public authorities.^-^ §263. Company's knowledge of defect.^The right to lay tracks in a street or public highway carries with it the obligation to lay them in a proper manner and to keep them in repair ; and if an injury occurs by reason of neglect in either of these respects, the company is liable In such cases no notice to it of a patent defect is necessary. When it appears that the defect existed and an injury was caused thereby, the presumption of negligence is complete; and the burden of proof is upon the company to show that the defect had not existed for a sufficient length of time to create a presumption of knowledge or to enable it to make necessary repairs.*^ When a street becomes out of repair the company shoiild be allowed a reasonable time to remedy the de- fects; and, in an action at law to recover damages for injuries sustained, the question of reasonable time should be submitted to the jury.*^ § 264. Company complying with ordinance not chargeable with negligence — In making repairs or laying pavements, in pursuance of city ordinances imposing that obligation, the com- "■ McMahon v. Second Ave. R. R. sey Ry. Co., 68 N. J. L. 343, (1902) ; Co., 75 N. Y. 271, (1878); Houston Kincaid v. Walla Walla Valley City Street Ry. Co. v. Dawson, 2 Trac. Co., 57 Wash. 334, 106 Pac. Tex. Unreported Cases 223, (1890); Rep. 918, (1910). Rockwell v. Third Ave. R. R. Co., ^^Worster v. Forty-second & 64 Barb. 438, (1873) ; Mullen v. Grand St. Ferry R. R. Co., 50 N. Y. Philadelphia Traction Co., 20 W. N. 203, (1872), revsg. 3 Daly 278, 0. (Pa.) 203, (1887); Fields v. Hart- (1870); Rockwell v. Third Ave. R. ford & Wethersfield Horse R. R. Co., R. Co., 64 Barb. 438, (1873). 54 Conn. 9, (1886) ; Lowery v. Brook- " Mayberry v. Second & Third lyn City & Newtown R. R. Co., 4 Streets Pass. Ry. Co., 9 W. N. C. Abb. N. C. 32, (1878); McMahon v. (Pa.) 404, (1880). Second Ave. R. R. Co., 11 Hun 247, Under the Connecticut statute (1877); Ober v. Crescent City R. the company is entitled to written R. Co., 44 La. Ann. 1059, 11 So. notice before an action Is brought. Rep. 818, 52 Am. & Eng. R. Cas. Fields v. Hartford & WethersHeld 576, (1892); Fielders v. North Jer- Horse R. R. Co., 54 Conn. 9, (1886). 426 THE LAW OF STREET EAILWATS. [§§ 265, 266. pany acts as the agent or representative of the city for that pur- pose, and is not liable either to abutting owners or to travelers upon the street for any defect in the plan adopted by the city or in the mode of construction required by the municipal authori- ties.** § 265. Liability of lessee to pave and repair ^A lessee operating a line of street railway succeeds to all the rights, and is subject to all the limitations, conditions and liabilities, embraced in the charter of its lessor. Hence, the company which is in the actual enjoyment of the franchise is held responsible to the general public and to the municipality for its default as to any of the conditions upon which the franchise was granted. If the lessor was under obligation to pave or repair, that obligation is assumed by the lessee, by implication if not by the express terms of the transfer to it.*^ § 266. Oblig^ations of constitueiit companies binding upon con- solidated company — Where the act of incorporation provides that the company shall be subject to certain ordinances requiring all passenger railway companies to bear the expense of all neces- sary paving,' repairing and repaving on the streets occupied by them, the duty will be binding on a company formed by the merger or consolidation of the earlier companies.*^ " Mayberry v. Second & Third So liable in Georgia by statute. Streets Pass. Ry. Co., supra. Laws of 1891, p. 169. Where a depression was made by As to rights of mortgagee, see the company in the pavement near Cambria Iron Co. v. Union Trust the railway tracks by direction of Co., 154 Ind. 291, 48 L. R A. 41, the city and as a means of drain- (1899). Ing the street, it was held that the " Philadelphia v. Ridge Ave. company was not chargeable with Pass. Ry. Co., 143 Pa. St. 444, 22 negligence by one injured on ac- Atl. Rep. 695, (1892). See also Thir- count of the depression. Campbell teenth & Fifteenth St. Pass. Ry- V. Frankford & Southwark City Ry. Co. v. Philadelphia & Esterbrook Co., 139 Pa. St. 522, (1891). Ry. Co., 13 W. N. C. (Pa.), 487, As to liability for damages (1883); Ridge Ave. Pass. Ry. Co. caused by changing the grade oi v. Philadelphia, 124 Pa. St. 219, the street, see sec. 92, ante. (1889); Philadelphia v. Thirteentli « Mullen V. Philadelphia Trac. & Fifteenth Sts. Pass. Ry. Co., 169 Co., 20 W. N, C. (Pa,) 203, (1887). Pa. St. 269, 33 Atl. Rep. 126, (1895). CHAPTEE X, STATE AND LOCAL, TAXATION— ASSESSMENTS— THE POWER TO LICENSE AND EXACT LICENSE PEES— COMPENSATION OR BONUS FOR THE RIGHT OF WAY. §267. Exemption from taxation. 268. Commutation of taxes. 269. No exemption unless such in- tent is clear. 270. Changes in the mode of taxa- tion. 271. What property taxable as real estate. 272. What taxable as personalty. 273. Taxation of the franchise. 274. Taxation of capital stock, Ijonds and dividends. 275. Assessment of tracks and right of way for street im- provements. 276. Assessment where tracks are not within the space covered by the street im- provement. 277. Assessment for widening streets. 278. Other local assessments. §279. License and license fees de- fined. 280. Power of municipal authori- ties to grant licenses and exact license fees. 281. Presumption in favor of the right to exact license fees. 282. Liberal construction in favor of the public. 283. Right to increase license fees. 284. Bonus for the use of streets. 285. Exaction of a license or bonus as affecting power to tax and assess. 286. Payment of a bonus as affect- ing the right to exact license fees. 287. How amount of bonus fixed and determined. 288. Liability of lessee to dis- charge the duties and ful- fill the obligations of the lessor. §267. Exemption from taxation — Tke right to exempt property from taxation is an incident of the power to tax, and both alike miist emanate from the sovereign authority of the state. The right to select the subjects of taxation carries with it, by necessary implication, the right to exempt not only certain classes of property, but, also, where such legislation is not inhibited by constitutional restrictions, the property of any persons, natural or artificial, whom the law-making power may see fit to favor by specific enactment.^ Municipal corporations, however, being ^ State, Orange & Newark Horse Car R. R. Co. V. Douglass, 34 N. J. L. 82, (1869) ; Wisconsin Central R. R. Co. V. Taylor County, 52 Wis. 37, (1881); Butler's Appeal, 73 Pa. St. 448, (1873) ; Macklot v. City of Davenport, 17 Iowa 383, (1864); Scotland County v. Missouri, Iowa 427 428 THE LA-W O]? STEEET EAILWAYS. [§ 268. creatures of the state and possessing only those powers whicli are specifically conferred by the state, have no inherent authority to grant exemptions and, therefore, can exercise the right only when so expressly authorized.^ §268. Commutation of taxes. — The- doctrine as to exemp- tion from taxation, stated in the last section, applies with equal force to the commutation of taxes, or the receipt of something & Nebraska R. R. Co., 65 Mo. 123, (1877) ; Rlchinond v. Richmond & Danville R. R. Co., 21 Gratt. 604, (1872); Probasco v. Moundsville, 11 W. Va. 501, (1877); People v. Coleman, 4 Cal. 46, (1854); State V. Parker, 33 N. J. L. 312, (1869); Indianapolis v. Sturdevant, 24 Ind. 391, (1865) ; Hill v. Higdon, 5 Ohio St. 243, (1855); State v. North, 27 Mo. 464, (1858); Wells v. Central Vermont R. R. Co., 14 Blatch. 426, (1878); Cooley on Taxation (3d Ed.), p. 262; Desty on Taxation, Vol. 1, p. 124; State v. Dexter & Newport Ry. Co., 69 Me. 44, (1879) ; Schuylkill County v. Citizens' Gas Co., 148 Pa. St. 162, (1892) ; North- ampton County V. Easton Pass. Ry. Co., 148 Pa. St. 282, (1892); Cook on Corporations (6th Ed.), sec. 572b, citing numerous cases; State V. City of Newark, 3 Dutch. 185, 186, (1858); MobUe & Spring Hill R. R. Co. V. Kennerly, 74 Ala. 566, (1883) ; State v. Addison, 2 S. C. 499, (1871); City of St. Paul v. St. Paul & Sioux City R. R. Co., 23 Minn. 469, (1887). See Elliott on Railroads (2d Ed.), Vol. 2, sec. 745a. ''State V. Hannibal & St. Joe R. R. Co., 75 Mo. 208, (1881); People V. Campbell, 93 N. Y. 196, (1883); Grant v. Davenport, 36 Iowa 396, (1873) ; Chicago v. Baer, 41 111. 306, (1866) ; Hayzlett v. City of Mt. Ver- non, 33 Iowa 229, (1871); Milwau- kee Blec. Ry. Co. v. Milwaukee, 95 Wis. 42, 69 N. W. Rep. 796, (1897); South Covington St. Ry. Co. v. Bellevue, 105 Ky. 283, 49 S. W. Rep. 23, 57 L. R. A. 50, (1899); Detroit Citizens St. Ry. Co. v. De- troit, 125 Mich. 673, (1901). A Wisconsin statute provided that no company should construct its railway in any street without the consent of the municipal authorities, and under such regula- tions and upon such terms and conditions as they should from time to time prescribe. It was held that the purpose of the act was to enable companies and municipal authorities to fix upon some equi- table system of local taxation for municipal purposes; and, where the city had agreed to accept a percentage of gross receipts in lieu of all city taxes except a land tax, the arrangement was binding upon the municipal authorities and the company could not be compelled to pay both. It was also held that the tracks could not he assessed as realty, under an ordinance re- serving the right to tax the com- pany's "lands and buildings." De- troit v. Detroit City Ry. Co., 76 Mich. 421, (1889). In Michigan a company exempted from general taxation was never- theless held to be liable to a dog tax. Hendrie v. Kalthoff, 48 Mich. 306, (1882). § 268.] TAXATiosr^ assessments awd license fees. 429 else as an equivalent for the taxes released.* A provision of the charter of a private corporation, whereby the state, in consider- ation of a stipulated sum or bonus, agrees to release it from the payment of general taxes, is binding upon the state and cannot be revoked unless the right is expressly reserved.* It is within the scope of the legislative power to enact that a railroad com- pany shall have immunity from state and county taxation upon the payment in installments of a certain amount in commuta- tion; and it is no objection to either the wisdom or validity of such a statute that the whole of the commutation is to be paid into the state treasury for the use of the state.^ It is held in New Jersey that railroad property may be exempted from local taxation.* The power to commute may be exercised by the legislature where not expressly denied by the constitution; and by the municipality when expressly conferred by statute, but not otherwise.^ A city cannot defeat the provision of a statute » Gardner v. State, 21 N. J. L. 557, (1845); Daughdrill v. Insurance Co., 31 Ala. 91, (1857) ; State Bank of Illinois V. People, 5 111. 303, (1843) ; Illinois Central R. R. Co. v. McLean County, 17 111. 291, (1855). * Daughdrill v. Alabama Life In- surance Trust Co., 31 Ala. 91, (1857) ; Mechanics' Bank v. Debolt, 18 How. 380, (1855); s. c. 1 Ohio St. 591, (1853); State v. Com- mercial Bank, 7 Ohio 125, (1835); Attorney-General v. Bank of Char- lotte, 4 Jones Bq. 287, (1858) ; Franklin Bank v. State, 1 Black 474, (1861); Douglass, Receiver, v. State, Orange & Newark Horse Car R. R. Co., 34 N. J. L. 485, (1869) ; Detroit v. Detroit City Ry. Co., 76 Mich. 421, (1889). 'Neary v. Philadelphia, W. & B. R. R. Co., 7 Houst (Del.) 419, 9 Atl. Rep. 405, (1887). 'State V. Jersey City, 49 N. J. L. 540, 9 Atl. Rep. 782, (1887). ' See sec. 267. ante, and cases there cited. The city of Detroit was held bound by a contract with a company, which in express terms stipulated that the city should ac- cept one per centum, by a subse- quent ordinance changed to one and one-half per cent., and after a certain date to two per cent., of the gross earnings of the company in lieu of all taxes except the land tax. Detroit v. Detroit City Ry. Co., supra. The city of Atlanta passed an ordinance granting the Gate City Street Railway Company a fran- chise, and requiring it to macadam- ize the road-bed between, and three feet beyond, its rails, and keep that portion of the street in good order, to conform to the street grades established by the city and comply with all the ordinances then In force, or that might there- after be adopted relative to street railways; and, in consideration of compliance with those stipulations, agreed to exempt the company's road from taxation for the period of ten years. Afterwards the city se- cured a new charter, in which it was 430 THE LAW OF STREET RAILWAYS. [§ 269. requiring •aniformity of taxation, by an evasion, such as a com- mutation of taxes in consideration of the payment of a stipulated sum." § 269. No exemption unless such intent is clear, — Exemption from taxation will not be presumed. The legislature cannot be held to have intended to svirrender the taxing power, unless its intention to do so has been declared in clear and unmistakable words.® An Ordinance by which a municipal corporation grants provided that street railway com- panies having tracks through the streets of the city should be re- quired to macadamize the streets as the commissioners of streets might direct. In an action to en- force the company's liability to pave under the new city charter, it was held that the ordinance had not the binding force of a contract and that the company must con- form to the duties imposed upon It by the new city charter. City of Atlanta v. Gate City St. R. R. Co., 80 Ga. 276, (1887). See also Detroit Citizens St. Ry. Co. V. Detroit, 125 Mich. 673, (1901); South Covington St. Ry. Co. V. Bellevue, 105 Ky. 283, 49 S. W. Rep. 23, 57 L. R. A. 50, (1899). 8 Where a statute required a municipal corporation to levy an- nually "an equal and uniform tax upon all real and personal prop- erty," and the city passed an or- dinance for the sale of a right of way on certain streets, agreeing to accept a bonus as a substitute for city taxes, the agreement was held to be invalid, because no such power had been expressly delegated to the municipality. City of New Orleans v. St. Charles St. R. R. Co., 28 La. Ann. 497, (1876). Where a municipality had claims against a company for taxes and the company had claims against the municipality for street paving damages, etc., it was held that the municipality could compromise Its tax claims by offsetting against them the claim of the company, and that such compromise would not be regarded as a remission of any part of Its claims for taxes. San An- tonio V. San Antonio St. Ry. Co., 22 Tex. Civ. App. 148, 54 S. W. Rep. 281, (1899). • New Orleans Ry. Co. v. New Or- leans, 143 U. S. 192, (1891); Metro- politan St. Ry. Co. V. New York, 199 U. S. 1, (1905). It has been de- cided in Pennsylvania, Maryland, Illinois and Louisiana that electric light companies are not considered "manufacturers," "manufacturing industries," or "manufacturing com- panies," under constitutions or stat- utes exempting companies o£ that description from taxation. Com- monwealth V. Edison Elec. L. & P. Co., 170 Pa. St 231, 32 Atl. Rep. 419, (1895); Frederick Elec. L. & P. Co. V. Frederick City, 84 Md. 599, 36 Atl. Rep. 362, 6 Am. Electl. Cas. 644, (1897); Evanston Elec. Ilium. Co. V. Kochersperger, 175 111. 26, 21 N. B. Rep. 719, (1898); State v. New Orleans Ry. & L. Co., 116 La. Ann. 144, 40 So. Rep. 597, 9 Am. Electl. Cas. 630, (1906). But in Ala- bama, Colorado and New York the ruling is otherwise. Beggs v. Bleo. Ilium. Co., 96 Ala. 295, 11 So. § 269.J TAXATION, ASSESSMENTS AND LICENSE FEES. 431 a franchise to a street railway company, for which the latter agrees to pay a bonus or stipulated sum in lump or in installments, will not be held to confer an immunity from the payment of license fees, taxes or assessments, unless such intent b© clearly expressed.^" l^or will a statute be construed as a contract, vest- ing an irrevocable right to an exemption from taxation, unless an intent to bind future legislation,-'^ and a consideration^^ plainly appear. But if a city has agreed to accept a bonus in lieii of taxes, it can not, after agreeing to remit the bonus and receive the taxes in lieu thereof, recover both, even if the immu- nity from taxes was illegal.-'* As all presumptions are against the intent to exempt, where an exemption is asserted the burden of proof is upon the claimant to show that it is so entitled.^* It is also its duty to ascertain whether its property; has been as- sessed, and, if so, to take the steps prescribed by the statutes to have the question determined; it can not rely upon notice given in advance to assessors.-'^ Eep. 381, 3 Am. Electl. Cas. 501, (1891); Lambom v. Bell, 18 Colo. 346, 32 Pac. Eep. 989, 4 Am. Electl. Cas. 573, (1893); People ex rel. Brush Blec. Mfg. Co. v. Wemple, 129 N. T. 543, 31 N. B. Rep. 238, 4 Am,. Electl. Cas. 563, (1892); Peo- ple ex rel. Edison El. Light Co. v. Campbell, 88 Hun 527, (1895) ; and In Southern Elec. L. & P. Co. v. Philadelphia, 191 Pa. St. 170, 43 Atl. Rep. 123, (1899), It was held that the premises used as "a re- serve plant" are exempt. '" City of Ne-wr Orleans v. Ne-w Or- leans R. R. Co., 42 La. Ann. 4, (1890); Louisville City Ry. Co. v. LouisTille, 4 Bush. (Ky.) 478, (1868); Newport v. South Coving- ton & Cincinnati St. Ry., 89 Ky. 29, 11 S. W. Rep. 954, (1889); City of Atlanta v. Gate City St. R. R. Co., 80 Ga. 276, (1887) ; New Orleans v. New Orleans City & Lake R. R. Co., 40 La. Ann. 587, 4 So. Rep. 512, (1888). "Dauphin & Lafayette Sts. Ry. Co. V. Kennerly, 74 Ala. 584, (1883) ; Mobile & Spring Hill R. R. Co. v. Kennerly, 74 Ala. 566, (1883). '^Mobile V. Stein, 54 Ala. 23, (1875); Probasco v. Moundsville, 11 W. Va. 501, (1877). "New Orleans v. Crescent City R. R. Co., 41 La. Ann. 904, (1889); City of New Orleans v. St. Charles St. R. R. Co., 28 La. Ann. 497, (1876) ; City of New Orleans v. Bay- ley, 35 La. Ann. 545, (1883); City of New Orleans v. New Orleans Water Works Co., 36 La. Ann. 432, (1884); In re St. John's Bridge & Ry. Co., 11 Can. Law T. 181, (1891). "Street R. R. Co. v. Morrow, 87 Tenn. 406, (1889); People ex rel. Twenty-third St. R. R. Co. v. Tax Commissioners, 95 N. Y. 554, (1884) ; United Rys. Co. v. Mayor of Baltimore, 93 Md. 630, 49 Atl. Rep. 655, 52 L. R. A. 772, (1901). "Jamaica & Brooklyn R. R. Co. V. Brooklyn, 123 N. Y. 375, (1890). 432 THE LAW OF STEEET EAILWAYS. [§§ 270, 2Yl. § 270. Changes in the mode of taxation The mode of tax- ation, no less than an exemption from such burdens, where pre- scribed by a charter which has all the vital elements of a vahd contract, cannot be changed by the legislature without the consent of the other contracting party, because such contracts are within the provisions of the constitution relating to the impairment of contracts.^® But the right of the legislature to change the mode or rate of taxation always exists when there is no express contract to the contrary." If constitutional or statutory provisions reserve the right to alter, amend or repeal corporate charters, an act is valid which requires a company to pay a percentage of its gross earnings in lieu of a license fee required by its charter.^* Thus where an act which prescribed the rate and manner of taxation, also provided that it might at any time be amended or repealed, the amendment or repeal not to affect the corporate rights of companies formed under it, a revision of the statutes was sus- tained, which, by repealing the act imposing upon street railway companies an annual tax of one-half of one per centum on the paid up stock, placed corporations generally upon the same foot- ing, in respect to the rate of taxation, as natural persons.'^ § 271. What property taxable as real estate. — Not only are lands together with buildings and other improvements thereon, which are owned by street railway companies and essential to enable them to exercise their franchise in the operation of their railways, liable to taxation as real estate;^" but the definition of real property is broad enough to include the ties, sleepers, rails, spikes and everything pertaining to the structure over which the cars are propelled ;^^ and it has been held also that the interest "Orange & Newark Horse Car Co., 113 N. Y. 311, (1889); Same R. R. Co. V. Douglass, 34 N. J. L. 82 v. Same, 48 Hun 552, (1888). (1869); Douglass v. State, Orange "Detroit City St. Ry. Co. v. Gut- & Newark Horse Car R. R. Co., 34 hard, 51 Mich. 180, (1883); Ft. N. J. U 485, (1869). Wayne & Blmwood St Ry. Co. v. "Detroit V. Detroit & Howell Same, 51 Mich. 180, (1883). Plank Road Co., 43 Mich. 140, =" Citizens' Pass. Ry. Co. v. Pltts- (1880); Dillon on Mun. Corp. (4th burgh, 104 Pa. St. 522, (1883). Ed.), sec. 766; Desty on Taxation, =^Clty of New Haven v. Fair pp. 265, 267. Haven & Westvllle R. R. Co., 38 » Mayor v. Twenty-third St. Ry. Conn. 422, (1871) ; Troy & Lansing- § 271.J TAXATION^ ASSESSMENTS AND LICENSE FEES. 433 of the company in the street which it occupies is an easement in the land, and real property, within the meaning of the laws governing taxation.^^ But viaducts and bridges constructed by a burgh R. R. Co. v. Kane, 9 Hun 506, (1877); Parmelle v. Chicago, 60 m. 267, (1871); Dillon Mun. Corp. (4th Ed.), sec. 789; People V. Cassity, 46 N. Y. 46, (1871). See also sec. 210, ante, and Providence & vV^orcester R. R. Co. v. Wright, 2 R. I. 459, (1853) ; Newark Trac. Co. V. North Arlington, 65 N. J. L. 150, 46 Atl. Rep. 568, (1900) ; New- ark V. State Board of Taxation & N. J. St. Ry., 66 N. J. L. 466, 24 Am. & Eng. R. Cas. (N. S) 442, (1901); Farmers' Loan & Trust Co. V. Ansonia, 61 Conn. 76, 23 Atl. Rep. 705, (1891). For taxation of power- house see New York Guaranty & Indemnity Co. v. Tacoma Ry. Co., 35 C. C. A. 192, 93 Fed. Rep. 51, (1899). In Canada it has been held that the wires, poles and rails of an electric railway company are tax- able as real estate when erected in the highway. Re Toronto Ry. Co., 25 Ont App. 135, (1899). A franchise is taxable as real es- tate in New York. Heerwagen v. Crosstown Ry. Co., 90 App. Div., (N. Y.), 277, (1904). In Stockton Gas & Elec. Co. v. San Joaquin County, 148 Cal. 313, 83 Pac. Rep. 54, (1905), it was held that a franchise of an electric light company invests it with an ease- ment in the streets which is real property subject to local taxation. See also Paterson & Passaic Gas & Elec. Co. V. State Board of As- sessors, 69 N. J. L. 116, 54 Atl. Rep. 246, 8 Am. Electl. Cas. 403, (1903), holding that, under the New Jersey statute, the franchises of eight constituent companies, some of which exercised municipal fran- 28 chises, are assessable for taxation against the consolidated company, and that the tax to be levied Is two per cent, of its gross annual receipts from all of its business, and not merely two per cent, of its receipts from the exercise of municipal franchises. But in Peo- ple ex rel. Elect. 111. Co. v. Asses- sors of Brooklyn, 19 App. Div. (N. Y.) 599, 46 N. Y. Supp. 388, (1897), it was held that the value of an electric light company's franchise is not subject to local taxation. "" Appeal of North Beach & Mis- sion R. R. Co., 32 Cal. 499, (1867) ; Chicago City Ry. Co. v. City of Chi- cago, 90 111. 573, (1878); Street R. R. Co. V. Morrow, 87 Tenn. 406, (1889); People ex rel. v. Commis- sioners of Taxes, 23 Hun 687, (1881); Louisville & Nashville R. R. Co. V. Bate, 12 Lea (Tenn.) 573, (1883); Newark v. State Board of Taxation, 66 N. J. L. 466, 24 Am. & Eng. R. Cas. (N. S.), 442, (1901). As to the taxation of the founda- tions and piers of elevated rail- roads, see sec. 210, ante. But in State ex rel. St. Paul City Ry. Co. V. District Court, 31 Minn. 354, (1884), it was decided that the track of the St. Paul City Railway Company was not real estate with- in the meaning of the city charter, and therefore not assessable for the expense of city paving. See also Toronto St. Ry. Co. v. Fleming, 37 Up. Can. Q. B. 116, (1875), revers- ing Toronto St. Ry. Co. v. Flem- ing, 35 Up. Can. Q. B. 264, (1874); Appeal Tax Court v. Union R. R. Co., 50 Md. 274, (1878); Philadel- phia, W. & B. R. R. Co. V. Appeal Tax Court, 50 Md. 397, (1878). 434 THE LAW OB' STREET RAILWAYS. [§ 272. company, in obedience to a legislative command, in and over streets, for the safety and convenience of the public, are to be considered as alterations or changes in the streets, and the struct- ures so erected are not the subject of taxation as against the railway company.^* Eeal estate is usually assessed in the taxing district within which it is situated; but in this respect the road- bed of a street railway differs from ordinary real estate. Instead of being assessed in different wards or other subdivisions of terri- tory within the city limits, the franchise and road-bed should be taxed as an entirety, and where a single return for milnicipal taxation is required by law it should be made in the ward or dis- trict within which the principal office of the company is located.^* § 272. What taxable as personalty. — ^Although, rolling stock is sometimes treated as personalty and sometimes as fixtures under tax laws,^® horses and cars and all other movable prop- erty are taxable as chattels, unless expressly exempted by law or valid agreement, or otherwise classified by statute.^* But in Under a statute of New Bruns- wick (33 Vic, Chap. 46, N. B.), re- lating to the taxation of railroad property, a street railroad com- pany which owned and used a bridge across the river between Fredericktown and St. Marys, wholly within the city of Freder- icktown, and the necessary ap- proaches to it, was held not liable for city taxes on the bridge or ap- proaches, or upon its rolling stock, station-house and other property used in connection with its railway bridge, on the ground that it was a commercial railroad within the meaning of the statute. Frederick- town & St. Marys Railway Bridge Co. v. Fredericktown, 10 Can. Law Times 92, (N. B. Sup. Ct., 1890). == People ex rel. v. Commissioners of Taxes, 23 Hun 687, (1881). See also Northampton v. Easton Pass. Ry. Co., 148 Pa. St. 282, 23 Atl. Rep. 895, (1892). =* Street railway tracks are adap- tations for particular purposes and the service of public highways. The right to use street railway tracks is inseparable from the franchise, and, not being taxable as land, it should properly be taxed as an en- tirety in one place so far as within one city. Detroit v. Detroit City Ry. Co., 76 Mich. 421, (1889). See also Street R. R. Co. v. Morrow, supra; Detroit v. Wayne Giro. Judge, 127 Mich. 604, (1901). In Greenfield v. Turners Palls St. Ry. Co., 187 Mass. 352, (1905), the court held that the assessors must include In their as- sessment for the purposes of tax- ation the tracks on private lands as well as those on public high- ways. =»Cooley on Taxation (3d Ed.), pp. 641, 694, 1149. See sec. 273, note 29, for taxation of franchise as personalty. =» Under a statute providing that horses and vehicles for the trans- portation of passengers for hire § 272.J TAXATION, ASSESSMENTS AND LICENSE FEES. 435 each case recourse must be had to the legislation of the state to determine what property is subject to taxation and its situs for that purpose. should be assessed to the owner In the place where they were kept, it was held that, as a corporation had no residence and Its stockholders were liable to taxation upon their shares in the town where they re- sided, the value of the personal property owned by the corporation was included as a subject of taxa- tion in the value of the shares, and was, therefore, not subject to spe- cific tax as chattel property. Mid- dlesex R. R. Co. V. Charlestown, 8 Allen 330, (1864). In an action brought to determine whether the county had the right to tax for county purposes the horses used by the defendant cor- poration In drawing Its cars and the stables and improvements erected by it for the housing of Its horses and cars, the company relied for Its exemption upon an act containing the following provision: "All prop- erty which is indispensable for carrying on the business for which a company is Incorporated and which is represented by the capital stock of that corporation. Is exempt from local taxation, although enumerated in the act of April 15, 1835." On a showing that the horses and stables were indispensable to the operation of a horse car passenger railway, the supreme court of Pennsylvania held that they were exempt from local taxation. Northampton County V. Easton Pass. Ry. Co., 148 Pa. St. 282, 23 Atl. Rep. 895, (1892), fol- lowing Coatesvllle Gas Co. v. Ches- ter County, 97 Pa. St. 476, (1881). See also Northampton County v. Easton, S. B. & W. End Pass. Ry. Co., 8 Pa. Co. Ct. Rep. 442, 2 North- ampton 201, (1890); Contra, Citi- zens' Ry. Co. v. Donohugh, 10 W. N. C. (Pa.) 62, (1881). In a case in which it appeared that the company paid a license fee of fifty dollars per car and a tax on all dividends in excess of six per cent.. It sought to enjoin the col- lection of a tax upon Its horses used In the operation of its road; but the relief was denied on the ground that such property was sub- ject to taxation notwithstanding the license fee and bonus which the city had exacted, there being no ex- press agreement to exempt any class of property from taxation. Smith V. Philadelphia City Pass. Ry. Co., 12 W. N. C, (Pa.), 177, (1882). See also Louisville City Ry. Co. V. Louisville, 4 Bush (Ky.) 478, (1868), where it was held that the payment of a license fee of twenty-five dollars per car annually did not exempt the company from the payment of a tax on Its tracks, stables, cars and horses. See also Detroit Cltlz. St. Ry. Co. V. Detroit, 125 Mich. 673, (1901). In Loralne Steel Co. v. Bristol St. Ry. Co., 187 Mass. 500, (1905), rails were held to be per- sonal property. In Shelbyvllle Water Works Co. V. People, 140 111. 545, 4 Am. Electl. Cas. 559, (1892), It was held that electric light wires, lamps and poles, connected with the machin- ery at the power house, are per- sonal property for purposes of tax- ation. So In Rhode Island dyna- mos, switchboards, poles and wires are held to be personal rather than real property. Newport Il- ium. Co. V. Tax Assessors of New- port, 19 R. I. 632, 6 Am. Blectl. 436 THE LAW OF STREET RAILWAYS. [§ 273. §273. Taxation of tlie franchise. — ^A corporation franchise is property, which, though intangible, exists, has value, produces income and passes current in the markets of the world, and is subject to taxation.^'' To arrive at the valuation of a street railway for purposes of taxation, the proper method is to assess as a whole, including as items of value its franchise, right of way, rails, sleepers, ties, spikes and other fixtures;^* but, under Cas. (1896) ; and in People ex rel. New York Edison Co. v. Fitner, 45 Misc. 12, 90 N. Y. Supp. 826, 9 Am. Blectl. Cas. 173, (1904), switches, wires and leaders, owned by a light- ing company and installed on real property belonging to different in- dividuals to whom the company was furnishing electricity, were held not to be assessable against the lighting company as real es- tate. In Commonwealth v. Brush Elec- tric Light Co., 204 Pa. St 249, 53 Atl. Rep. 1096, (1903), it was held that an electric light company is taxable upon its entire receipts, in- cluding those derived from the sale of current for power, as well as from the sale of electric supplies. But in Scranton v. Scranton L. & H. Co., 33 Pa. Super. Ct. 431, (1907), it was held that the power delegated to municipalities to collect license taxes, even for revenue purposes, could not be construed to include a tax upon gross receipts. ""In the complex civilization of to-day a large portion of the wealth of a community consists of intang- ible property, and there is nothing in the nature of things, or in the limitations of the Federal Constitu- tion, which restrains a state from taxing at its real value such intang- ible property. It matters not in what this intangible property consists— whether privileges, corporate fran- chises, contracts or obligations. It is enough that it is property, which. though intangible, exists, which has value, produces income and passes current in the markets of the world. It is a cardinal rule which should never be forgotten that whatever property is worth for the purposes of income and sale, it is also worth for purposes of taxa- tion." Per Brewer, J., in Adams Ex. Co. V. Ohio, 166 U. S. 185, 218, 219, 220, 17 Sup. Ct. Rep. 604, (1896). See also Metropolitan St. Ry. Co. V. Tax Commissioners, 199 V. S. 1, (1905). In State v. Anderson, 90 Wis. 550, (1896), it was held that a street railway company owns no interest in the soil of the highways over which its road passes which may be taxed as real estate, and the In- herent value of its property above the cost of reproducing the mate- rial constituents of its line arises from its franchise, which is sub- ject only to state and not munici- pal tax. See also Newark v. Board of Taxation, 67 N. J. L. 246, 51 Atl. Rep. 67, 24 Am. & Bng. E. Cas. (N. S.) 442, (1902) ; Camden R. B. Co. V. Atlantic City, 58 N. J. L. 316, 33 Atl. Rep. 198, (1895). ■^ Detroit v. Detroit City Ry. Co., 76 Mich. 421, (1889). See also Peo- ple ex rel. v. Commissioners ol Taxes, 23 Hun 687, (1881); Desty on Taxation, p. 405; State ex rd. V. Anderson, 90 Wis. 550, 63 N. W. Rep. 746, (1895) ; Detroit City St. Ry. Co. V. Detroit, 125 Mich. 673, (1901); Marion v. Cedar Rapids § 273.J TAXATION^ ASSESSMENTS AND LICENSE FEES. 437 a statute authorizing the assessment or taxation of property omitted from the regular assessment, the right of way and franchise cannot be added as a separate and distinct item of properly. Whetlier a franchise is to be regarded as realty or personalty for the purposes of taxation depends on the statutes of the various states.^® The method of determining the value of the franchise differs in those jurisdictions in vsrhich fran- chises are taxable separately. In several states the mode of valua- tion is to deduct from the total value of the corporation's capital stock the value of its tangible property.^" Ry. Co., 120 Iowa 259, (1903). See sec. 271, note 24, on taxation of franchise as realty. In 1899, the New York Legisla- ture passed the special Franchise Tax Law (Laws 1899, chap. 712) making the franchises of street rail- way companies taxable as real es- tate. Heerwagen v. Crosstown St. R. R. Co., 90 App. Div. (N. Y.) 277, (1904). For New York fran- chise tax law see Heydecker's Gen. Laws. (2d Ed.), sees. 182, 185 and 190. "Tn State ex rel. v. Anderson, 90 Wis. 550, 63 N. W. Rep. 746, (1895), it was held that franchises are to be regarded for purposes of taxation as personal property. See also Detroit v. Donovan, 127 Mich. 604, 86 N. W. Rep. 1032, 23 Am. & Eng. R. Gas. (N. S.) 520, (1901); Detroit City St. Ry. Co. v. Detroit, 125 Mich. 673, (1901); Street Rail- road Co. v. Morrow, 87 Tenn. 406, (1889); San Antonio St. Ry. v. San Antonio, 22 Tex. Civ. App. 341, 54 S. W. Rep. 907, (1899). '^ Louisville Ry. Co. v. Common- wealth, 105 Ky. 710, 49 S. W. Rep. 486, (1899). In this case It was held that in ascertaining the value of its capital stock, the gross and net earnings of the corporation may be considered. See also Paducah St. Ry. Co. V. McCracken, 105 Ky. 472, 49 S. W. 178, 9 Am. & Eng. R. Cas. (N. S.) 705, (1899). In Louisiana the earning capacity is used as a basis of estimating the value of Its franchise. See Act of 1890 No. 106, sees. 28 and 29; New Orleans Ry. Co. V. New Orleans 44 La. Ann. 1053, 11 So. Rep. 687, (1892) ; State V. Board of Assessors, 48 La. Ann. 1156, 20 So. Rep. 670, (1896); St. Charles Ry. Co. v. Board of Asses- sors, 51 La. Ann. 459, 25 So. Rep. 90, (1899) ; Crescent City Ry. Co. v. Board of Assessors, 51 La. Ann. 335, 25 So. Rep. 311, (1899). To ascer- tain the fair cash value of the stock, including the franchise, the rule in Illinois is that the market value of the stock should be added to the market value of the debt of the cor- poration, excluding indebtedness for current expenses, and subtract- ing from the sum the equalized or assessed valuation of the tangible property, and taking one-fifth of the remainder. The result is the net assessed valuation of the capital stock, including the franchise, over and above the assessment of its tangible property. Board of Equali- zation V. People, 191 111. 528, 61 N. B. Rep. 339, (1901). See also Man- hattan Ry. Co. V. Barker, 146 N. Y. 304, (1895). 438 THE LAW OF STREET EAILWAYS. [§ 274. § 274. Taxation of capital stock, bonds and dividends No limitation can be placed upon the power of the state to levy and collect taxes, except by the constitution, and none will be implied, in the absence of clear and unambiguous language expressing that intention.^^ The state may impose such conditions as it deems just and reasonable upon the privilege granted to private corporations of transacting business within its limits; and, while a tax on the capital stock is a different thing from a tax on the corporation, shares may be taxed unless they are made exempt by the charter, or some statutory or constitutional restriction. This power, although it may result in double taxation, i. e., a tax upon all the property owned by the corporation and upon the shares which represent the property, has been exercised in several states, ^^ although even in some of them, it has been held that the state or the local taxing authorities may waive the right even to levy the single tax assessed upon property generally.'^ Tha policy of the different states varies widely in respect to the taxa- tion of stock in corporations, and for the rights and Uabilities of the public and the corporation taxpayer, in this respect, we must look to the constitution, the general statutes and the charter. In Tennessee it is held that a statute neither imposes double taxa- tion nor violates the constitutional mandate, that all property shall be taxed according to its value,^* which requires corpora- tions to pay a tax upon the value of their property, and their stockholders also upon the value of their shares; that for the purpose of taxation the situs of the shares may be fixed by stat- ute at the place where the corporation is located, even as against non-resident stockholders ; that a statute is valid which requires the corporation to retain and pay out of dividends due to its stockholders the tax assessed against them upon their shares; but that bonds have their situs, for purposes of taxation, in the absence of any special provision affecting them, at the place of the bondholder's residence, not at the place where the corporation "^Cooley on Taxation (3d Ed.), pp. (1858). See also sec. 269, a"t«' 129, 177 citing Lane County v. Ore- and cases there cited, gon, 7 Wall. 71, (1869) ; State v. " Cook on Corporations (6tli Ed.), Parker, 32 N. J. L. 426, 435, (1880); sec. 567. Byre v. Jacob, 14 Graft. 422, 436, »»Ante, sec, 267. ^ Art. II, sec. 28. § 274.J TAXATION, ASSESSMENTS AND LICENSE TEES. 439 is situated.*' In Maryland, also, the shares of non-resident stock- holders are liable to taxation at the place where the corporation is located.*® In Louisiana the value of that portion of the capital of the corporation, represented by the shares of its stock, is the market value of its shares, to be used as a basis for taxation.*'' In New York the capital stock is required to be assessed at its actual value, after deducting from it the assessed value of the real estate.*^ In Pennsylvania, under an act providing that a company shall annually pay into the city treasury a tax of six per centum on so much of any dividends declared as shall exceed six per centum upon the company's capital stock, it was held that the words, capital stock, related to the amount of capital stock actually paid in, and not the amount of authorized » Street R. R. Co. v. Morrow, 87 Tenn. 406, 407, (1889), citing with approval: Union Bank v. State, 9 Terg. 490, (1836); McLaughlin v. Chadwell, 7 Heisk. 389, (1872); Memphis v. Ensley, 6 Baxter 553, (1871) ; Gas Light Co. v. Nashville, 8 Lea 406, (1881) ; Street R. R. Co. V. Nashville, MS., (1880); Farrlng- ton T. Tennessee, 95 TJ. S. 679, (1887) ; Young v. Iron Co., 85 Tenn. 189, (1886); Bedford v. Nashville, 7 Heisk. 409, (1872); Nashville v. Thomas, 5 Cold. 600, (1868); Ohio & Mississippi R. R. Co. v. Wheeler, 1 Black 286, (1861); State Tax on Foreign-held Bonds, 15 Wall. 319, (1872); First National Bank v. Smith, 65 111. 44, (1872); Baltimore v. City Pass. Ry. Co., 57 Md. 31, (1881) ; St. Albans v. Car Company, 57 Vt. 81, (1884); People v. Com- missioners, etc., 35 N. Y. 423, (1866) ; Haight v. Pittsburgh, Ft. W. & C. R. R. Co., 6 Wall. 15, (1867) ; Bank v. Commonwealth, 9 Wall. 363, (1869) ; Maltby v. Reading & Colum- bia R. R. Co., 52 Pa. St. 140, (1866) ; Ottowa & Glass Co. v. McCaleb, 81 111. 556, (1876) ; New Orleans v. Lou- isiana Savings Bank, 31 La. Ann. §26, (1879); Lipnberger v, Rowse, 43 Mo. 67, (1868); American Coal Company v. Allegheny County, 59 Md. 197, (1882); Cummings v. Na- tional Bank, 101 U. S. 156, (1879) ; and distinguishing Tennessee v. Whitworth, 117 U. S. 129, (1885); but it was held that the statute, act of 1887, Chap. 2, sees. 8-12, so far as it undertook to convert corpora- tions into agencies for the collec- tion of taxes laid upon their bond- holders, was so faulty, defective, and onerous to corporations, that it was impracticable and void — cit- ing with approval on this point Hartman v. Greenhow, 102 IT. S. 684, (1880). In .New Jersey the debts of horse railroad corpora- tions, secured by mortgage on land to trustees, are non-taxable, if the mortgagor has not claimed a deduc- tion therefor. Merchants' Insur- ance Co. V. City of Newark, 54 N. J. L. 138, 23 Atl. Rep. 305, (1891). " Baltimore v. Baltimore City Pass Ry. Co., 57 Md. 31, (1881). " New Orleans & CarroUton R. R. Co. V. Board of Assessors, 32 La. Ann. 19, (18S0). Compare St. Charles St. R. R. Co. v. Board of Assessors, 31 La. Ann. 852, (1879). ^ People ex rel. v. Commissioners 440 THE LAW OF STEEET EAILWAYS. [§ 2Y5. capital stock; and that the term "on any dividends declared," contemplated that a tax should be based upon the aggregate of dividends declared in any one year, and not upon any single div- idend declared.^® In that state the dividends of passenger railway companies are liable for city taxes, and the annual official reports made to the auditor-general of the state by the company are the best evidence of the amount of paid-up stock.*" In Massachusetts, where stockholders in a street railway company were taxable on their shares in the towns where they resided, it was held that the corporation could not be taxed on its personal iproperty used in and necessary for the prosecution of its business.*^ § 275. Assessment of tracks and right of way for street im- provements — Ordinarily a street railway company, which dis- charges its obligation to pave and keep in repair that portion of the street which it tises, is not liable to special assessments for paving the remainder of the street.*^ The fact that the rails, ties and tracks of a street surface railway are property and subject to taxation generally, affords no sufficient reason for taxing them for street improvements, when the law has not made them specially assessable for such purposes.*^ An examination of the leading of Taxes, 95 N. Y. 554, (1884) ; Pec- have been assumed and was not dis- pie ex rel. v. Barker, 72 Hun 126 puted by the company, although (1893). not directly covered by the deci- ™ Philadelphia v. Ridge Ave. Pass. slon. In New Haven v. Fairhaven Ry. Co., 102 Pa. St. 190, (1883). & Westville R. R. Co., 38 Conn. 422, See Second & Third St. Pass. Ry. (1871), the company, having failed Co. V. Philadelphia, 51 Pa. St. 465, to pave as required, was held lia- (1866); Citizens' Pass. Ry. Co. v. ble to an assessment on Its tracks Philadelphia, 49 Pa. St. 251, (1865). and real estate. Chicago v. Baer, "Citizens' Pass. Ry. Co. v. Phlla- supra, was modified by Parmelee delphia, supra. v. Chicago, 60 111. 267, (1871), but " Middlesex R. R. Co. v. Charles- not on the point under considera- ton, 8 Allen 330, 333, (1864). tion. ^ Chicago, Rock Island & Pacific " People ex rel. Davidson v. Gl- Ry. Co. V. Chicago, 143 111. 641, 27 Ion, 126 N. Y. 147, (1891). The N. E. Rep. 926, (1891) ; Chicago v. statute, under which it was sought Sheldon, 9 Wall. 50, (1869). But see to charge the company, authorized Chicago v. Baer, 11 111. 306, (1866), the mayor, aldermen and common- and Jacksonville Ry. Co. v. Jackson- alty to make street improvements vllle, 114 III. 562, (1885). In the and a "just and equitable assess- latte'r case the liability seems to ment thereof among the owners or § 275.] TAXATION-^ ASSESSMENTS AND LICENSE EEES. 441 eases, relating to both commercial railroads and street railways, would seem to lead to the conclusion, first, that there is no legal presumption that the company is especially benefited by the occupants of all the houses and lots intended to he heneflted there- by in proportion, as nearly as may be to the advantage each shall he deemed to acquire." The improve- ment in question was constructed of granite blocks laid over the sur- face of the entire street, including the space between the tracks, and the assessors had omitted to assess the tracks of the New York & Har- lem Railroad Company for a share of the expenses incurred. The court of appeals, reversing the su- preme court (58 Hun 76), held that the city had no power to lay an as- sessment on the street railway tracks, saying, p. 153, per Ruger, C. J.: "We think this decision finds no support in the provisions of the charter. Property like that in ques- tion has been for a long course of years exempt from assessment for local improvements in New York, and no reason is perceived for now making a change in this practice." It was also held that there was no presumption that such a pavement was beneficial to a company operat- ing a horse railway. The court, upon this point, said: "We also think there was no foundation for the conclusion reached by the gen- eral term, that the railroad com- pany were benefited by the improve- ment in question. The burden of showing that such property was liable to assessment lay upon the relator, and unless he caused it to appear in some way, from the record, that it was benefited, no error affirmatively appeared In the record. The court below assumed this fact and based their assumption, as it appears in their opinion, upon the circumstance that the pave- ment between the tracks afforded a footpath for the horses employed on the railroad, and warranted an inference that it was, therefore, benefited thereby. It seems to us that this inference is not well founded. It is doubtless possible to conceive of a case where such a pavement might be of benefit to a horse railroad company, but we do not think that it can be said to be so generally, or even in any case, unless exceptional circumstances make it so appear. The fact whether certain property is bene- fited by a particular improvement in a street, depends upon the pe- culiar circumstances surrounding the property, which may exist in one case, and be absent In another, and this can be made to appear only by evidence of such circum- stances. This information is not contained in the case, and could not be made known to an appellate tribunal except by evidence. There is no claim in the case but that the previous pavement between the rails afforded the railroad company a good track for its horses, or that any reason existed why they should wish to make the change. The suggestion made in the opinion be- low that a solid stone track was necessarily an improvement upon their track for horses is, I think, unwarranted by observation or ex- perience; but, however this may be, the question was one of fact to be determined by the assessors and could not be reviewed in these proceedings by the general term in the absence of any evidence on the subject," 442 THE LAW OF STREET BAIL WAYS. [§275. construction of a new pavement upon or across tbe streets through whicli the right of way has been granted, and, second, that the right to assess the franchise and road-bed can be exercised only In O'Reilley v. Kingston, 114 N. Y. 439, (1889), it was lield that street railway tracks located in the cen- ter of a street are not assessable for the expense of paving the street, under a charter which pro- vided that no part of the expense should be assessed upon any lands "not bordering on or touching said street." 'See Dillon on Mun. Corp. (4th Ed.), sees. 789, 721; Burroughs on Taxation, pp. 474, 707; Cooley on Taxation (3d Ed.), p. 1234; Parma- lee V. Chicago, 60 111. 267, (1871). In State v. Newark, 27 N. J. L. 185, 191, (1858), per Green, C. J., it was said: "If the assessment upon the railroad company be sustained upon the ground of special benefits to the corporation from the in- creased facilities of travel afforded by widening the street, an assess- ment may be sustained upon the same ground against the owner of every express wagon or stage coach that travels the street. The assess- ment in this case is a clear exer- cise of the taxing power. It is made for a public purpose, and confers no special benefits upon the prop- erty of the company." This was an assessment for widening a street, the company being exempt, by its charter, from general taxes. But, in the same case, an assessment upon houses and lots owned by the company, on the basis of benefits, was sustained. See also Davis v. Newark, 54 N. J. L. 144, 23 Atl. Rep. 276, (1891); North Jersey St. Ry. Co. v. Jersey City, 68 N. J. L. 140, (1902). In Chicago, B. & Q. R. R. Co. v. South Park Commissioners, 11 111, App. 562, (1882), South Park Com'rs v. Chicago, B. & Q. R. R. Co., 107 111. 105, (1883), it was held that the rail- road company's right of way across the street is not assessable where by statute an assessment is author- ized upon property abutting on the street; Northern Indiana R. B. Co. v. Connelly, 10 Ohio St. 159, (1859), where the assessment was by front- age on the land appropriated by the railroad company for its tracks, and was sustained, the question of actual benefits not being opened for consideration; Bridgeport v. New York & N. H. R. R. Co., 36 Conn. 255, U869), in which it was held that the easement of the company in the laud occupied for its tracks could not be assessed for benefits arising from laying out a street along its side. In Kentucky, in a case not fully reported. It was held that a city does not yield its control of streets cr the right to repair and improve them by permitting a street railway to be constructed thereon, and that where the city assumes the burden of improving, it is just and equi- table that the company shall be re- quired to contribute. Newport St. Ry. Co. V. Newport, 1 Ky. Law Rep. 124, (1880). In Illinois, under section 1, article 9, Rev. Stat, chap. 24, cities and villages are vested with power to levy special assessments for local improvements; and it has been held in that state, that a street rail- way falls within the designation of property specially taxable for local improvements, because It is contiguous to a proposed street im- provement. Kiiehner v. Freeport, § 376.] TAXATIOWj ASSESSMENTS AND LICENSE FEES. 443 where the power is conferred by the city charter or reserved in the company's charter. It is doubtful if the right could be in- ferred from the power to assess "abutting property" or "adjoin- ing property" or "property specially benefited," without proof in the latter case of something more than incidental benefits which the company shares with the general traveling public. Where the law has devoted property permanently to a particular use, as for instance the right of way for a railroad, such property cannot be used for any other purpose; therefore, in proceedings to assess a railroad company for a street improvement, the jury or assessment board is confined in its consideration merely to the extent that the value of the property for that particular use may be increased or enhanced.** § 276. Assessment where tracks are not within the space cov- ered by the street improvement — There can be no obligation on the company to contribute to the cost of paving a portion of the roadway on one side of its tracks only, where the improvement does not include the part of the street which the company is required to pave or to keep in repair; and in such a case the failure or omission of the city authorities to assess a portion of the cost upon the tracks will not invalidate the assessment against abutting property.*® 143 111. 92, 32 N. E. Rep. 372, (1892) ; tliat the railroad company could not Cicero St. Ry. Co. v. Chicago, 176 lawfully apply Its land, on which it III. 501, 52 N. E. Rep. 866, 22 Am. had constructed nine distinct tracks, & Eng. R, Cas. (N. S.) 815, (1S98) ; to any other use or purpose than Commissioners v. Metropolitan R. R. such as was necessary for the opera- Co., 182 111. 246, 55 N. E. Rep. 344, tion and maintenance of Its railroad. (1899) ; Chicago Term. R. R. Co. v. " Bowditch v. New Haven, 40 Chicago. 184 111. 154, 56 N. E. Rep. Conn. 503, (1873). The street in 410,(1900). In Conway v. Rochester, which the pavement was laid was 24 App. Dlv. (N. Y.) 489, (1897), It ninety-five feet wide and the pave- was held that tracks, ties and fran- ment was laid in the middle, a chises are not included in "lots and width of only twenty-five feet, leav- parcels of land." See also Oshkosh Ing room for travel on each side be- City Ry. Co. v. Winnehago Co., 89 tween the pavement and the curb, Wis. 435, 61 N. W. Rep. 1107, (1895). the tracks being laid on one side of "Illinois Central R. R. Co. v. Chi- the street and outside of the space cage, 141 111. 509, 30 N. E. Rep. covered by the Improvement. See 1036, (1892), holding that it was also West Chicago Ry. Co. v. Chicago, error to refuse to instruct the jury 178 111. 339, 53 N. B. Rep. 112, (1899). 444 THE LAW OF STEEBT EAILWATS. [§ 211, § 277. Assessment for widening streets — There are but few cases reported in whieh. the right to assess street railway tracks for widening streets hasi been directly presented and decided. In Illinois it has heen held that where a company, under its contract with the city, paves an agreed portion of the street which it uses, it is not liable to an assessment on its road- bed and franchise for a portion of the cost of paving or repairing the remainder of the roadway.*® But it also has been decided in that state that the right of way is property liable to be assessed for benefits derived from widening the street, and that the fact that a company was under obligation to keep its portion of the street in repair would not constitute a defense against the assess- ment.*^ Such, too, was the ruling made in an early case in Cali- fornia.*^ But under some circumstances the company, instead of being liable for a share of the expenses of widening the street, may be entitled to damages from the city, as, for instance, where the street improvement results in direct and material expense to the company in the performance of its duty of maintaining bridges at street crossings which are interfered with by the new improvement.*® '" See ante sec. 225, and note. widened, the city taking property " Chicago City Ry. Co. v. Chicago, on each side of the railroad for 90 111. 573, (1878); Parmalee v. Chi- that purpose. The company under cago, 60 111. 267, (1871) ; South Chi- the ordinance requiring it to erect cago City Ry. Co. v. Chicago, 196 and maintain bridges covering the 111. 490, 63 N. E. Rep. 1046, (1902). entire width of the street, was re- « Appeal of North Beach & Mis- ^"^^^^^ to reconstruct its bridges or sion R. R. Co., 32 Cal. 499, (1867). viaducts at such crossmgs on the o, t. ,j . oi t ivT 1 o^ T.T ground that its duty was a continu- So held in State v. Newark, 27 N. f co-extensive with the life J. L. 185, 191, (1858), where the ^/^^ charter, and hence entitled to company was, by its charter, ex- damages from the city for the cost of empt from general taxes. ^^^^ reconstruction rendered neces- "The Kansas City Belt Railway ^^^^^ ^^ ^^^ stj.ggt improvement. Company was required at certain "jjere the city seeks to widen the street crossings "to erect and main- street, and in doing this not only ap- tain suitable bridges, viaducts or ppopriates part of the defendant's trestles, of wood, iron or stone," so right of way, but throws upon the as to allow the full width of the company the expense of removing streets for general public travel, ex- banks of earth and readjusting the cept the part occupied by posts, bridge to conform to the new order columns or piers to support its of things. These expenses thus tracks. The street was afterwards brought about, on plainest princi- § 2Y8.] TAXATION, ASSESSMENTS AND LICENSE FEES. 44:5 §278. Other local assessments As a general rule, in the absence of a contract granting immunity from taxes or assess- ments, the right to construct and operate a street railway is an easement and interest in lands which, together with the track attached to the soil, is subject to general taxation.'**' It follows that such property is also liable to assessment for various public improvements, the cost of which is laid upon real estate. Upon this theory, it has been held in New York and ITew Jersey that au assessment is valid which is laid upon property of a street railway company, consisting of sleepers, ties and rails, for the construction of a sewer.®^ But it has been decided in ITew pies of justice, constitute elements of damages to be allowed the company in the proceedings to condemn property; for the bridge structure is property as much as the land on which it rests. If the city is relieved from the payment of these expenses, it is because the defendant, in accepting the ordi- nance, agreed to change and alter its bridge from time to time so as to conform to the street as it might threafter be widened. We find no such undertaking In the ordinance. It was passed and accepted in view of the then established width of the street, and it makes no provision concern- ing this bridge in case the street should be widened. As there is no agreement on the part of the com- pany to readjust the bridge, at its own expense, to conform to the street as widened, and as no rule of law casts that expense upon the company because of its duty to maintain the bridge, it follows that the expenses of removing the em- bankment and adjusting the bridge to the street as widened are proper elements of damages to be allowed the defendant." Per Black, J., in City of Kansas v. Kansas City Belt R- R. Co., 102 Mo. 633, 641, (1890). " In Savannah Ry. Co. v. Savan- nah, 112 Ga. 164, (1900), it was held that municipalities have the power to levy a business or occupation tax on street railway companies do- ing business within the city limts. See sees. 271, 273, ante. '^ So held in Troy & Lansingburgh R. R. Co. V. Kane, 9 Hun. 506, (1877), affirmed in 72 N. Y. 614, (1878). The act under which the improve- ment was made directed that the expense of improvements ordered by the common council, except for opening and widening of street, should "be apportioned and charged upon the property and persons and corporations benefited thereby." The conclusion reached by the court is justified by Brookes, J., as follows: "It is insisted on the part of the plaintiff that the provisions of law under which the municipal authorities took action, and on which the defendant here relies for his justification, have no applica- tion to the plaintiff or its property. The validity of the law, when ap- plied to a subject within its pur- view, is not questioned; that is, it is not disputed but that the munic- ipal authorities have the rght, un- der the provisions of the city char- ter, to make local improvements as 446 THE LAW OF STREET EAILWAYS. [§ 279. York that railroad property used as a right of way could not be benefited by laying a street across it, and, therefore, was not subject to assessment for that purpose.®* §279. license and license fees defined A license is a privilege granted by some competent authority to do some act which, without such permission, would be unlawful. The thing to be done may be something lawful in itself and only prohibited to construct sewers, and to charge the expense of their construction upon the property, persons and cor- porations benefited thereby. This authority is admitted, nor is it dis- puted that the plaintiff and its property are subject to general taxation. This was settled by the decision in People ex rel. v. Cas- sity, (46 N. Y. 46). And it was se1> tied also in the case cited, that the property of a railroad company was real property and taxable as such. This case settles the point that the use of the rail for support of the track, consisting of stringers, ties and rails affixed to the land, to the extent and as given by the com- pany's charter was an easement, an interest in land recognized in law as real property. Now, it was undoubtedly on real estate that the expenses incident to local improve- ments were to be assessed under the provisions of the city charter, for those expenses were to be borne, in fair construction of the various provisions of the city char- ter, by the property 'benefited thereby,' consequently personal property could not have been in contemplation. But the plaintiff's property was real property. Now, If it could be benefited by the lo- cal improvement ordered by the common council, it was, within the purview of the law, assessable there- for, and the officers on whom de- volved the duty of making the as- sessment had jurisdiction to in- clude it, in making the apportion- ment to cover the expense. It does not lie with this court to say that the plaintiff's property could not, by possibility, be benefited by flie improvement. A sewer is useful in many ways, and may benefit the land through or along which it is conducted. It is useful as a con- duit for impurities, hence beneficial in a sanitary point of view; and It may also be greatly beneficial for the ready discharge of surface wa- ter. To meet the objection of the want of jurisdiction in this case, it is sufficient that the plaintiff's real property could be benefited by the improvement. Whether it was benefited by it, and to what ex- tent, compared with the surround- ing or adjacent property, were sub- jects of consideration devolving upon the officers designated by law to determine those questions." To the same effect. State v. City of Passaic, 54 N. J. L. 340, 23 Atl. Rep. 945, (1892). See Freeport St. Ry. Co. v. Preeport, 151 111. 451, 38 N. B. Rep. 137, (1894), where the assessment was made for the purpose of grad- ing the street. " New York & Harlem R. R. Co. V. Morrisania, 7 Hun 652, (1876), following Owners of Ground t, Mayor, 15 Wend. 374, (1836); and § 279. J TAXATION, ASSESSMENTS AND LICENSE FEES. 447 in order to compel taking out a license.'* The power to tax is limited to the raising of revenue for public purposes. A license fee is not a tax, but, as applied to private corporations, represents the reasonable cost of regulation, or, when the authority is con- ferred to use the power of licensing as a revenue measure, is a consideration paid for the privilege of exercising a franchise. It becomes a tax only when revenue is the sole or the principal pur- pose for which it is imposed.'* The distinction between a tax upon a business and a license is that the former is exacted be- cause the business is carried on and the latter is exacted as a condition precedent to the right to carry it on. A license may be exacted without the imposition of a tax, and a tax may be imposed without exacting a license fee.'' The powers being distinct, the authority to levy and eoUect taxes does not include the power to exact a license ; and an attempt, under the guise of regulation, to raise revenue by the exaction of a license, is an xmwarranted assumption of power against which the courts vdll grant relief. The decisions of the courts speak with almost entire unanimity in denial of the right of municipal governments to use the power of licensing as a revenue measure, unless a legislative intent is clearly manifested that the power may be used for that purpose.'* Village of Sing Sing V. Mayor (New Cal. 475, 476, (1879), that, under York Sup. Ct.), where a road was a municipal charter authorizing the laid out over the Croton Aqueduct, city to "license and regulate all '^Cooley on Taxation, (3d Ed.), and every kind of business author- pp. 1133, 1137. ized by law and transacted and car- "Desty on Taxation, Vol. I, p. ried on in said city; to fix the rates 305. of license tax upon such business," "'Adler v. Whitbeck, 44 Ohio St. the city could compel a street rail- 539, 559, (1886). road company, which acquired its "North Hudson County Ry. Co. license in the streets subsequent to V. Hoboken, 41 N. J. L. 71, (1879). the date of the city charter, but In Bx-parte Prank, 52 Cal. 606, before any license was exacted, to (1878), it was held that the power pay an annual license of $20.00 per of a municipal corporation to "11- oar; and that the power to enforce cense and regulate" occupations, payment was not affected by the included the authority to raise rev- tact that the railway extended, and enue for municipal purposes by its cars were run, beyond the cor- means of license fees. Following porate limits. As to the latter the rule in that case, it was d©- point, see City of Sacramento v. cided, in City of San Jose v. San California Stage Co., 12 Cal. 134, Jose & Santa Clara R. R. Co., 53 (1859). For California statute ap- 448 THE LAW O]? STEEET RAILWAYS. [§ 280. What will be considered a revenue measure in any given case can not be determiaed by any established or well recognized standard. The courts hold that the amount exacted must be rea- sonable.^'' But it is diificult to extract from the cases any general rule applicable to different kinds of business, or what amount it is lawful to exact from the proprietor of a street railway, in the exercise of the police power of a municipal corporation. In some cases the requirement that the sum of fifty dollars per car shall be paid annually has been held to be reasonable,^^ and in others that it was clearly unreasonable and void.^® § 280. Fewer of municipal authorities to grant licenses and e"^act license fees — The grant of a license may be made by the state directly, or indirectly through municipal corporations. The latter have no inherent authority to grant a franchise,'" and, unless invested with such power by the legislature, cannot exact license fees for carrying on a business within the corporate limits. The power must come by direct grant, and cannot he taken hi implication.*^ Under a grant of general power of taxation on portioning license fees where the 126, (1870), the court intimated a railroad connects or runs through doubt as to the right, by subse- two or more cities or towns, see quent ordinance, to exact a license Cal. Code, sec. 5508. See also Cape fee of even $5.00 per car. May V. Cape May Ry. Co., 64 N. J. In Pavonia Horse R. R. Co. v. L. 80, 44 Atl. Rep. 948, (1899). Mayor, 45 N. J. L. 297, (1883), an "Burroughs on Taxation, pp. 322, ordinance requiring street railway 393; Tiedeman, Limitations of Po- companies to pay an annual license lice Power, p. 274; Welch v. Hotch- fee of $10.00 per car was held to kiss, 11 Mich. 140, (1872); Ward v. be 'invalid because it was passed un- Maryland, 12 Wall. 418, (1870). der the authority of an act re- =« Frankford & Philadelphia Pass, specting licenses in cities of the Ry. Co. V. Philadelphia, 58 Pa. St. first class, which the court held to 119,(1868). See Johnson V. Phila- be a local and special act, and th6"e- delphia, 60 Pa. St. 445, (1869) ; fore unconstitutional. Frankford & Philadelphia Pass. Ry. In City of San Jose v. San Jose Co. V. Philadelphia, 101 U. S. 528, & Santa Clara R. R. Co., supra, an (1879). annual license fee of $20.00 per car "• Mayor v. Third Ave. R. R. Co., was justified only on the ground of 33 N. Y. 42, (1865) ; Mayor v. Sec- express legislative authority, ond Ave. R. R. Co., 32 N. T. 261, '"Ante sec. 3. (1865) ; Mayor v. Second Ave. R. R. " Cooley on Taxation (3d Ed.), Co., 34 Barb. 41, (1861). pp. 1133, 1137. In State v. Herod, 29 Iowa 123, Under a "power to regulate" an § 280.J TAXATION^ ASSESSMENTS AWD LICENSE EEES. 449 subjects within its limits, however, a nranicipaJity may impose hcense fees for the purposes of raising revenue.'^ An amend- ment to the charter of a city authorizing its common council to grant permission to lay railroad tracks through its streets, and run cars on them under such licenses and conditions as it may deem proper, is prospective merely, ajid cannot be held to affect existing rights.®* The municipality has the power to exact license fees as a condition of its consent to construct and operate in its streets.®* Operating a street railway is a business within the meaning of the law which can be subjected to the payment of hcense fees.®® Where a city is authorized to license certain lands of business, it may exact a reasonable fee for that purpose. As to the amount which may be charged, the courts are not alto- gether in harmony, but that the amount should be small is almost ordinance cannot be passed to tax for revenue purposes. Cape May Transit Co. v. Cape May, 64 N. J. L. 80, 44 Atl. Rep. 948, (1899). See also sec. 279, ante, and cases there cited. "In Newport News Ry. Co. v. Newport News, 100 Va. 157, 40 S. B. Rep. 645, 24 Am. & Eng. R. Gas. (N. S.) 453, (1902), the court said: "The privilege of running street cars through the crowded thorough- fares of a city is, in the discretion of the council, a legitimate subject upon which to impose a license tax, either for the purposes of raising revenue under its general powers of taxation, or in the exercise of Its general police power." In Pennsylvania it has been held that a municipality may impose a reasonable license fee on poles and wires maintained in streets for commercial lighting, but not upon such as are used exclusively under a contract with the municipality for street lighting. Lancaster v. Edison Elec. Ilium. Co., 8 Pa. Co. Ct. Rep. 178, 2 Am. Electl. Cas. 116, 29 (1888); New Castle v. Elec. Ilium. Co., 16 Pa. Co. Ct. Rep. 663, (1895) ; and in West Conshohocken Bor- ough V. Conshohocken Elec. L. & P. Co., 29 Pa. Super. Ct. 7, (1905), it was held that reasonableness of the license fee fixed by ordinance was a question for the court and not for the jury. <" State ex rel. Hoboken & "Wee- hawken Horse R. R. Co. v. Hobo- ken, 30 N. J. L. 225, (1863). ' °* Jersey City v. Jersey City Ry. Co., 70 N. J. L. 360, (1904). °° City of New Orleans v. New Orleans City & Lake R. R. Co., 40 La. Ann. 587, (1888); New Or- leans V. New Orleans R. R. Co., 42 La. Ann. 4, (1890). See also Savan- nah Ry. Co. V. Savannah, 112 Ga. 164, (1900) ; s. c. 115 Ga. 137, (1902). Under the power in the charter of a city to "tax all lawful occupa- tions," it may impose a tax upon the cars running in its streets. Denver City Ry. Co. v. Denver, 21 Colo. 350, 41 Pac. Rep. 826, 29 L. R. A. 608, (1895). 450 TilE LAW OF STREET EAILWAYS. [§ 280. universally agreed.*® Whether or not a street railway company, which has complied with all! statutory requirements and fulfilled all obligations imposed upon it by ordinance, ma^y thereafter without its consent be required to take out a license to run its cars, is a question of grave doubt. If the company has accepted the privileges granted and, directly or indirectly, has once, paid the agreed price ior the franchise, and is conforming to all other regulations imposed upon it, it would seem to be duly licensed and fully authorized to carry on its business without any further action by the common counciL*^ If the fee imposed as a license is intended for revenue, its exaction is an exercise of the power of taxation and not of the police power or power of regulation.*' " See sec. 279, ante, and cases there cited. ■" Mayor v. Second Ave. R. R. Co., 32 N. Y. 261, (1865). Burroughs, commenting on this case in his Treatise on Taxation, at page 395, says: "It may be remarlted of this case, that here the franchise was granted by the city, and the imposi- tion of other terms to the contract impaired the obligation of the con- tract, while in the cases from Penn- sylvania [Frankford R. R. Co. v. Philadelphia, 58 Pa. St. 119, (1868), and Johnson v. Philadelphia, 60 Pa. St. 445, (1869), infra] the franchise was granted by the state, subject to municipal regulation, and the grant itself contemplated other reg- ulations." See also Mayor v. Third Ave. R. R. Co., 33 N. Y. 42, (1865). Where the council of a city enters into a specific agreement with a company prescribing the regulations to which the latter shall be subject, requiring no further license, and re- serving no right to require one, it is concluded by its contract from afterwards passing an ordinance requiring the taking out of a license and the payment of a fee by the company as a condition precedent to the right to run its cars. Such an agreement is nothing more or less than a license; and if it confers the right to run cars in a certain man- ner through a specified portion of the city, no subsequent license can curtail the right. Mayor v. Second Ave. R. R. Co., 34 Barb. 41, (1871). "" Mayor v. Third Ave. R. R. Co., 33 N. Y. 42, (1865) ; Mayor v. Sec- ond Ave. R. R. Co., 32 N. Y. 261, (1865) ; Mayor v. Second Ave. R. R. Co., 34 Barb. 41, (1871) ; Union Pass. Ry. Co. V. Philadelphia, 101 U. S. 528, (1879); Johnson v. Philadel- phia, 60 Pa. St. 445, (1869); Fuller V. State, 48 Ala. 293, 294, (1872); Wiggins Ferry Co. v. Bast St Louis, 102 111. 560, 566, 568, (1882); Home Insurance Co. v. Augusta, 50 Ga. 530, (1874) ; Chilvers v. People, 11 Mich. 49, (1862) ; Pleuler v. State, 11 Neb. 547, (1881); St. Louis v. Spiegel, 75 Mo. 146, (1881); Ward V. Maryland, 12 Wallace, 418, (1870) ; North Hudson v. Hoboken, 41 N. J. L. 71, (1879) ; Mays v. Cin- cinnati, 1 Ohio St. 268, (1853); Cooley's Con. Llm. (7th Bd.), V- 283. In Allerton v. Chicago, 6 Fed. Rep. 555, (1880), it was held that an ordinance of Chicago requiring street railway companies thereto- . fore chartered to pay an annual li- § 281.J TAXATION"^ ASSESSMENTS AND XICENSE FEES. 451 §281. Presumption in favor of the right to exact license fees. — In construing the charter of a company conferring authority to constnact and operate at street railway, the right to exact license fees will not be denied because it has not been expressly reserved in the grant; and where the contract between the city and the company does not in terms dispense with the payment of a Kcense, the rights of the latter are not impaired by a subse- quent ordiuance requiring such payment.^® cense fee of $50.00 for each car was a valid exercise of the police power by the city council. Some impor- tance was attached to the fact that a prior act of the legislature had authorized cities to license hack- men, draymen, omnibus drivers, cab- men, expressmen, and all others pursuing like occupations, and to prescribe the license fees that should be paid. The court ob- served: "The only distinction which can be called substantial between the two classes of occupation (om- nibuses and street cars) is that one carriage goes upon iron rails, in a regular track, with wheels, and the other carriage goes with wheels upon the ordinary street- way." Under a similar statute, the same conclusion was reached by the supreme court of Penn- sylvania in Frankford & Phila- delphia Pass. R. R. Co. V. Phil- adelphia, 58 Pa. St. 119, (1868), ex- acting a fee of fifty dollars per car, and Johnson v. Philadelphia, supra, requiring the payment of fSO.OO per car. The statute construed in those cases authorized city councils to is- sue licenses "to such and so many persons as may apply to keep and use omnibuses, or vehicles in the nature thereof, and to charge a rea- sonable annual or other sum there- for," the court holding that the phrase, "vehicles in the nature" of omnibuses, was sufficiently compre- hensive to include street cars. See also Munn v. Illinois, 94 U. S. 113, (1876); Chicago Packing & Provision Co. v. Chicago, 88 111. 221, (1878); Railway Co. v. Philadel- phia, 6 Phila. 238, (1867). In nearly all of the cases, cited as exceptions to the general rule, the power to li- cense was held to be within the pur- view of some prior statute; but it would seem that in some cases so large an amount could only have been exacted for revenue purposes. In Newport News Ry. Co. v. New- port News, 100 Va. 157, 40 S. E. Rep. 6i5, 24 Am. & Eng. R. Cas. (N. S.) 453, (1902), it was held not to be double taxation to impose a license tax on a street railway company for the privilege of conducting its busi- ness, and at the same time impose a direct tax upon its property used in carrying on that business. See also Savannah Ry. Co. v. Sa- vannah, 115 Ga. 137, (1902). *■ City of New Orleans v. New Or- leans City & Lake R. R. Co., 40 La. Ann. 587, (1888). Where an ordinance was in force at the time of granting a street rail- way franchise imposing a license fee of $20.00 on every "coach or stage-coach drawn by two horses," and the street railway company in its contract with the city agreed to "pay from the date of opening the street railroad the annual license fee for each car now allowed by law," it was held in an action based on the contract, that by develop- 452 THE LAW OF STREET EAILWAYS. [§ 282. § 282. Liberal construction in favor of the public Contracts relating to the taxing power must be liberally construed in favor of the public; so, too, with reference tO' the authority to impose license fees and regulations. Hence, where an ordinance grant- ing a street railway franchise provides how and when the road shall be constructed and the manner in which it shall be main- tained, and is silent as to the exaction or payment of license fees, no presumption will arise against the right to exact such fees." ment and improvement the modern railway car had been evolved from the old-fashioned stage-coach, which implied a vehicle or conveyance running on wheels for carrying pas- sengers, and, therefore, that the city was entitled to recover the same license fee exacted for stage- coaches. Mayor v. Third Ave. R. R. Co., 117 N. Y. 404, (1889), affirming 1 N. Y. Supp. 397, (1888). As germane to this question see also Mayor v. Dry Dock, East Broadway & Battery R. R. Co., 112 N. Y. 137, (1889); Mayor v. Broadway & Seventh Ave. R. R. Co., 97 N. Y. 275, (1884). In Union Pass. Ry. Co. v. Philadelphia, 83 Pa. St. 429, (1877), it was held that the right of the city to exact a license fee could not be taken away by mere implication. See Newport News Ry. Co. v. Newport News (supra); Springfield v. Smith, 138 Mo. 645, 37 L. R. A. 446, (1897), (quoting sec. 281, supra). '"Grants of this class are not to be extended by construction beyond the plain terms in which they are conferred, but should be strictly construed against the corporation and those claiming under the grant, and in favor of the public. Wyan- dotte V. Corrigan, 35 Kan. 21, (1886). After the company was chartered an ordinance was passed requiring it to pay $100 per year as a license, and fixed a penalty for non-pay- ment. Express authority was con- ferred upon cities of the second class, which included the city of Wyandotte, to levy and collect a li- cense fee upon the business of oper- ating street railroads, and the va- lidity of such legislation had been considered and held valid in City of Newton v. Atchison, 31 Kan. 151, (1883). The right to impose tlie license in this case, therefore, was not derived from any inherent power to impose police regulations, but was based upon express statu- tory enactment. In support of the rule stated in the text, see Mayor v. Dry Dock, East Broadway & Battery Ry. Co., 112 N. Y. 137, (1889) ; City of New York V. Third Ave. R. R. Co., 1 N. Y. Supp. (N. Y. Sup. Ct.) 397, (1888); Mayor v. Dry Dock, Bast Broadway & Battery Ry. Co., 47 Hun 199, (1888) ; New Orleans v. New Orleans City & Lake R. R Co., 40 La. Ann. 587, (1888) ; State ex rel. Cream City Ry. Co. v, Hilbert, 72 Wis. 184, 39 N. W. Rep. 326, 330, (1888); Delaware Railroad Tax, 18 Wall. 206, 226, (1873); Common- wealth V. Bank, 10 Pa. St, 449, 451, (1849); Union Pass. Ey. Co. v. Philadelphia, 101 U. S. 528, 636, (1879) ; Johnson v. Philadelphia, 60 Pa. St. 445, 451, (1869). The grant of an exclusive rigM by a city ordinance to construct, operate and maintain over the i 283.] TAXATIOKj ASSESSMENTS AND LICENSE FEES. 453 §283. Right to increase license fees — A charter granting valuable privileges in consideration of burdens imposed, when accepted and acted upon by the grantee, is a contract which can- not be violated with impunity by either of the parties. Hence, where a city enters into a specific arrangement with a street rail- way company, prescribing regulations under which the railway is streets of a city, a street railway for the carriage of passengers, con- taining no proTlslon in relation to the payment of any fee or license does not exempt the company from paying a license fee provided by a prior ordinance to be paid by all persons engaged in carrying pas- sengers. State V. Herod, 29 la. 123, (1870). The license was $5.00 per car annually, of which Wright, J., said: "The fee demanded is not a tax, but a sum imposed in virtue of the police power of the city, or that which relates to the orderly management of its affairs." When different companies in the same city are rectuired to pay dif- ferent sums as an annual license, and a new company's charter re- quires it to pay an annual license fee for each car as paid by other companies in the city, the city has a right to collect from the new com- pany a sum equal to the greatest amount exacted from any of the others. Mayor v. Broadway & Sev- enth Ave. Ry. Co., 97 N. Y. 275, (1884). But where an ordinance of the City of New York, passed In 1858, provided that on each horse-car running below a certain street the company should pay the sum of $50.00 as a license fee, "except the small, one-horse passenger cars, which shall pay each the sum of $25.00 annually," it was held that a change of the motive power of the small, one-horse passenger cars, to two horses, did not subject the com- pany to the payment of $50.00 an- nually for each car. City of New York V. Twenty-Third St. Ry. Co., 17 N. Y. Supp. 32, (1892). Six ordinances of the city of Providence allowed six horse rail- road companies to use its streets, two ordinances requiring payments therefor from two of the companies. These companies afterwards con- solidated. Three ordinances al- lowed three steam railroad com- panies to use the streets of the city, one of the ordinances requir- ing payment therefor from one of the companies. Subsequently the ordinances of the city were revised and the revision of the chapter on railroads contained general rules and regulations, the permission to use the streets, and prescribed cer- tain conditions, mostly taken from the original ordinances, but said nothing about any payments. The revising ordinance contained a list of ordinances repealed, among which those requiring payments were not found. It was held that the special ordinances requiring payments were not repealed by the revising ordinances. The charter of a horse railroad company sub- jected the construction and use of its track to the "assent of the city council upon such terms and direc- tions * * * as said city coun- cil may impose." This provision was held to be sufficient for the im- position by the city of a money payment for the use of the streets. City of Providence v. Union R. R. 454 THE LAW OF STBEET EAILWAYS. [§ 284. to be operated and requiring the payment of an agreed sum as a license fee, witkout reserving the power to modify the terms, it is concluded by its contract from ever afterwards paasiag an ordi- nance increasing the amount to be paid.'^ § 284. Bonus for the use of streets — The conditions upon which a street railway company may occupy streets and exercise the rights of a common carrier of passengers for hire are pre- scribed by constitution, statute, ordinance or some other form of agreement between the city and the company. While a municipal Co., 12 R. I. 473, (1879). See also Springfield v. Smith, 138 Mo. 645, 37 L. R. A. 446, (1897). "Where a license fee had been fixed hy ordinance in 1853, and about ten years afterwards an or- dinance was passed increasing the amount of the fee, the amendment was held to be in derogation of the rights of the company, and, therefore, illegal and void. Mayor v. Third Ave. R. R. Co., 33 N. Y. 42, (1865). See also Mayor v. Second Ave. R. R. Co., 32 N. Y. 261, (1865). But where a company was subjected to "such reasonable rules and regular tions, and the payment of such li- cense fees, as the proper municipal authorities may from time to time prescribe," It was held that the city had the right within reasonable limits to increase the license fees originally imposed. State ex rel. Cream City Ry. Co. v. Hilbert, 72 Wis. 184, 39 N. W. Rep. 326, (1888). The increase in this case was from $10.00 to $15.00 per car annually. In Johnson v. Philadelphia, 60 Pa. St. 445, (1869), an increase of the license fee from $5.00 to $30.00 per car annually was sustained as a proper exercise of the police power: "In the case before us it may be al- lowable to conjecture that the prin- cipal object of requiring the license was to place some check upon the number of the cars employed on the road, so that the streets might not be unduly obstructed, and their passage by the citizens at large in- terfered with and prevented. If the sum charged was more than suffi- cient for this or any other propsr object of police regulation, then in- deed a question might arise as to whether it was not in effect a tax on the franchise. Whether it is so or not, in this instance, we are not called on to determine, and would not, therefore, be justified in ex- pressing any opinion." Per Shars- wood, J., on p. 450. An increase of a license fee from $30.00 to $50.00 per car was held valid, where the company was char- tered by the legislature under a constitutional provision reserving the power to alter, revoke or annul charters thereafter conferred by general or special laws. Union Pass. Ry. Co. v. Philadelphia, 101 U. S. 528, (1879). In this case the court expressed a doubt as to the 'right to increase the fee "ex- cept in pursuance of additional leg- islation under this reserved power," and Inferentially questioned the right of the city to increase the li- cense in the exercise of its police power. This case followed Union Pass. Ry. Co. v. Philadelphia, 83 Pa. St. 429, (1877). § 284.] TAXATION-, ASSESSMENTS AND LICENSE FEES. 455 corporation has no such, proprietary interest in the public thor- oughfares -within its limits as to entitle it to damages, -where, by- legislative enactment, a street rail-way is constructed and operated, -without the consent of the municipality,''^ it is usually clothed with po-wer to -withhold its consent, or to attach to the pri-^lege such reasonable conditions as may be agreed upon bet-ween it and the company seeking the franchise.''^ Although the conveniences of this modified use of the street may greatly out-weigh the iaconveniences, the right to exact compensation in money, other- ■wise called a bonus, is justified on the ground that the right to use a street already graded as a road-bed is a valuable privilege, and because the occupation of the streets by cars interferes to some extent -with their use by other travelers.''* Where the enjoyment of the franchise depends upon the consent of the local authorities, their right to impose conditions authorizes them to exact the payment of a bonus. ''^ So -where the charter of a city empo-wers its council to pass "such ordinances as may be necessary and proper" -with reference to the laying of tracks in its streets, it may sell the right to the bidder offering the largest bonus.''* " Ante sec. 3, and cases cited. New Orleans, 14 La. Ann. 842, '• Ante sees. 13, 14. (1859). "Elliott on Roads & Streets (2d Under a statute -wherein It was (Ed.), sec. 743; Elchels V. Evansville provided that "the company may St. Ry. Co., 78 Ind. 261, (1881); In construct lines of railway along re Second Ave. R. R. Co., 12 Am. L. such streets as it may consider Reg. 447, (1873) ; Louisville City Ry. beneficial to the Interest of the com- Co. V. Louisville, 4 Bush. (Ky.) 478, pany and to which the city council (1868). of the city may consent, authority "Detroit v. Detroit City Ry. Co., for which is hereby given to said 76 Mich. 421, (1889) ; Covington St. council to make an agreement there- Ry. Co. V. Covington, 9 Bush. (Ky.) for," a city council passed an ordi- 127, (1872); City of Providence v. nance providing that no company Union R. R. Co., 12 R. I. 473, (1879). should construct a street railway See also Chicago Greneral Ry. Co. v. in the city without first obtaining Chicago, 176 111. 253, 52 N. E. Rep. the consent of the city council, and 880, (1898), where the court held that "the franchise for street rail- that the city had power to impose roads, as provided for in said or- an annual mileage tax as a condi- dinance, be granted to any respon- tion of its consent, quoting, with sible company who will pay Into the approval, the text of this section. city treasury the largest bonus for "Brown v, Duplessis and City of the same." Under that ordinance 456 THE LAW OF STEBET RAILWAYS. [§285. § 285. Exaction of a license or bonus as affecting power to tax and assess — The agreed price to be paid by a railway company for the privilege of occupying streets and collecting tolls is merely a consideration for the franchise granted, and, being in no sense a tax or assessment, does not exonerate the. grantee from the payment of an ad valorem tax on its real and personal prop- erty. The payment of a license fee or bonus does not affect the right either of the state or of the municipality to tax or assess the property of the company to the same extent and in the same manner as if no compensation had been exacted or paid." the company entered into a contract with the city by which it was given authority to construct its railway, for which it agreed to pay $250 an- nually for the period of twenty-iive years, and in an action to enforce payment it was held that the city had a right to exact the bonus and collect 'it in an action at law. Cov- ington St. Ry. Co. V. Covington, 9 Bush. (Ky.) 127, (1872). "The city of Louisville, by con- tract with the Louisville Street Rail- way Company, agreed to accept a bonus or license fee of $25.00 per car annually in consideration of the franchise granted to the com- pany, under the provision of a statute which required the con- sent of the city to the construction and operation of the road and au- thorized the city to impose condi- tions upon the enjoyment of the right as might be agreed upon. The company, having paid the bonus, de- nied the right of the city to assess an ad valorem tax upon its tracks, franchise, horses, stables and cars; but the court held that the payment of the bonus was no defense to the payment of the tax. "The price of the license is no more a tax on the company's property than a li- cense to keep a tavern or a coffee house is a tax on the house and its appendages, and no such license exempts such property from taxa- tion." Per Robertson, J., in Louis- ville City Ry. Co. v. City of Louis- ville, 4 Bush. (Ky.) 478, 481, (1868). An ordinance granting a street railway company the exclusive priv- ilege of operating a street railway on the payment of a certain sum each year on every car, does not fix a tax on its business or calling so as to exempt the company from ad valorem tax levied by the city under an amendment to its charter. Newport v. South Covington St. Ry. Co., 89 Ky. 29, 11 S. W. Rep. 954, (1889). See aso Newport News Ry. Co. V. Newport News, 100 Va. 157, 40 S. E. Rep. 645, 24 Am. & Eng. R. Cas. (N. S.) 453, (1902); Dallas v. Dallas Consol. Ry. Co., 95 Tex. 268, 66 S. W. Rep. 35, 24 Am. & Eng. E. Cas. (N. S.) 704, (1902). The charter of an elevated rail- road company provided for the pay- ment of five per cent, of its net in- come, to be "the legal compensation In full for the use and occupation of the streets." It was held that this did not exempt from taxation its real and personal property, in- cluding the railroad structure and appurtenances. People ex rel. v. Tax Commissioners, 10 Hun 246, (1877); People ex rel. v. Commia- sioners of Taxes, 82 N. Y. 459, (1880). § 286.J TAXATION^ ASSESSMENTS AND LICENSE TEES. 457 §286. Payment of a bonus as affecting the right to exact license fees — As we have seen in the preceding section, the exac- tion of a bonus does not prevent the levying of taxes or assess- ments, one being a payment under private contract, the other being the discharge of a public liability. So the power to exact a license for purposes of revenue may be exercised, notwithstanding the exaction and payment of an agreed compensation, where the city is invested with such power and has not expressly waived its right. If the city, in its contract fixing the amount of com- pensation to be paid by the company, does not expressly waive its right to exact a license, it may require the payment of both.''* The exemption of property from taxation by an act declaring that the payment of a certain per cent, of gross earnings annually "shall he and is in full of all taxation and assessment whatever," includes a local assessment for benefits, as well as general taxes. St. Paul v. St. Paul & Sioux City Ry. Co., 23 Minn. 469, (1877). See also Gard- ner V. State, 1 Zabr. 557, (1845); Farmers Bank of Kentucky v. Com- monwealth, 6 Bush. (Ky.) 127, (1869) ; Burroughs on Taxation, sec. 76. ™New Orleans v. New Orleans City & Lake R. R. Co., 40 La. Ann. 587, (1888). In this case, after granting the right of way by a con- tract in which the payment of a license was not dispensed with, the city exacted the payment of a li- cense aggregating $2,500, which was sustained. In New Orleans v. New Orleans R. R. Co., 42 La. Ann. 4, (1890), the company had acquired its right to construct and operate a railway in consideration of the sum of $10,000, payable in five equal annual install- ments. Subsequently the city sought to collect a license fee of $250, which the company resisted on the ground that the contract precluded further exactions. The court held that the contract for a bonus, which did not expressly waive the right to exact license fees, could not be construed as conferring an immu- nity from the payment of a license on the business of the company. To the same point, see New York & Erie R. R. Co. v. Sabin, 26 Pa. St. 242, 245, (1856). The question presented in Mayor V. Dry Dock, East Broadway & Bat- tery Ry. Co., 47 Hun 199, (1888), affirmed in 112 N. Y. 137, (1889), was the right to collect license fees and a percentage on receipts under suc- cessive statutes. In 1860, certain franchises were granted to the com- pany by statute in consideration of which an annual license fee was to be paid. In 1866, certain privi- leges were granted in addition to those already conferred, on the con- dition that, if the company availed itself of the privilege, it should pay to the city a certain percentage of the net proceeds of its business. The company, having accepted the new privilege, denied the right of the city to collect the license, con- tending that by the latter act it was released from such payment. The court held, however, that the obligations imposed by the two 4:58 THE LAW OF STEEET RAILWAYS. [§ 287. § 287. How amount of bonus fixed and determined The amount of the compensation to be received by the public for the use of streets is fixed relatively or absolutely in a variety of ways, i. e., by requiring the payment of the expense of paving, repair- ing and cleaning a portion of the street, a gross sum in advance, installments during life of the franchise, an agreed sum per car in use, a percentage of gross receipts, a percentage of net receipts, or a percentage of dividends; and, by agreement, a scheme may be adopted which includes more than one of the foregoing modes of payment, or others not here named, as the city may lawfully exact from its licensee any conditions which are not in violation of charter rights.™ As already stated,^" where vested with authority, the city may in consideration of such payments release the company, wholly or in part, from the payment of municipal taxes. If the siun to be paid depends upon the dividends declared by the company, it may become ai question as to the basis on which the estimate shall be made, whether upon the authorized capital, the amount of paid-up stock or the amount of stock subscribed. In such cases, if the agreement between the city and the company contains no specific provision toi the contrary, the basis usiially adopted is the amount of capital actually paid in.'^ If a company, already under obligation to pay license fees or a stipulated sum per car, accepts additional privileges granted on condition of the payment of a bonus in addition to the license fees, it will be required to pay both, unless by the later ordinance the payment exacted is by express terms accepted in lieu of the If any ambigiiity exists it will operate against the statutes were separate and distinct, payment a bonus do not import a and that the proper construction of contract for exemption from taxa- the acts required the company to tion of the franchise granted." pay, in addition to the license fees, ™Ante sec. 29. a further sum under the later act. *" See ante sec. 268. See also Dallas v. Dallas Consol. Ry. '^ Second & Third St. Pass. Ry. Co., 95 Tex. 268, 66 S. W. Rep. 835, Co. v. Philadelphia, 51 Pa. St. 465, 24 Am. & Eng. R. Cas (N. S.) 704, (1866). (1902), in which it was said: "The ''Mayor v. Dry Dock, East Broad- ordinances which simply Impose the way & Battery Ry. Co., 47 Hun 199, annual payment as a condition of (1888), affirmed hy 112 N. T. 137, the grant and those which call such (1889). §288.] TAXATION, ASSKSSMENTS AND LICENSE FEF3.S. 459 grantee and in favor of the public.^* The fact that the railway extends beyond the mimieipal limits may present some practical difficulties in ascertaining the amount chargeable on the basis of gross receipts, but it does not constitute an insuperable obstacle to the collection of the agreed compensation.** § 288. Liability of lessee to discharge the duties and fulfill the obligations of the lessor — By statutes passed in pursuance of con- stitutional authority empowering the legislature to alter, amend or repeal corporate charters, when dealing with corporate property which has been leased prior to the date of the statute ^ Mayor v. Broadway & Seventh Ave. Ry. Co., 97 N. Y. 275, 281, (1884); Mayor v. Dry Dock, East Broadway & Battery Ry. Co., su- pra. "Baltimore Union Pass. Ry. Co. V. Baltimore, 71 Md. 405, (1889). In this case it was held that the col- lection should he made on the basis of gross receipts from all the lines; that the testimony of witnesses who were accustomed to ride on the line extending beyond the city limits as to their estimate from casual ob- servation of the proportion of pas- sengers on that line, but could not tell at what point outside of the city such passengers boarded or left the car, did not afford a safe method of ascertaining the earnings of that line. It was decided that, in the absence of any different tes- timony in that respect, it was fair to approximate a basis of settle- . ment on the assumption that each part of each line carried as many as any other part, and that the gross sum to which the company would be entitled to a reduction from its total gross receipts in re- spect to such a line would be that sum which bore the same propor- tion to the total gross receipts as the number of miles traveled by the cars outside of the city limits bore to the total mileage. The same rule was followed in New York, where the bonus for ex- tending the tracks was fixed by commissioners at a percentage of the gross receipts for travel on the new tracks. The basis of calcu- lation fixed by the commissioners was the proportion the new tracks bore in length to the whole line. In re Second Ave. R. R. Co., 12 Am. L. Reg. 447, (1873). From this re- port it appears that one company paid annually ?1,000, another |150,- 000 in gross, another $67,000 in gross. It contains much valuable Information as to results reached under various New York statutes providing for compensation. Where the proportionate amount of the taxes on the gross receipts of the railroad company, imposed by the United States internal revenue law, which was allowed by the stat- ute to be added to and collected with the fare of each passenger, was a proportional part of one cent, it was held that the company was limited to such proportional amoimt, and there being no coin in which it could be paid, the loss must fall on the company and not on the pas- sengers. Black V. Sixth Ave. Ry. Co., 1 Daly 536, (1866). THE LAW OP STREET RAILWAYS. [§ 288. e legislature may impose the same obligation upon the lessee it could have imposed upon the lessor in the absence of a trans- V of property. Charter rights cannot be acquired in pais with- t the assumption at the same time of charter duties. Hence, has been held in "New York, where ample authority is reserved the legislature to alter, amend or repeal corporate charters, at an act is valid which requires a company to pay annually to the city treasury one per cent, of its gross earnings in lieu a fee of fifty dollars annually for each car used by it as quired by its charter; and that, as the obligation imposed on e company to pay the percentage is a charter obligation and e consideration of the franchise conferred upon it, a subsequent 3see of the road is bound to discharge the obligation by paying e percentage, although the lease is silent in regard to it, and ere is no statutory provision creating the liability.*® "Mayor v. Twenty-Third St. Ry. wealth v. Union Trac. Co., 192 Pa. I., 113 N. Y. 311, (1889), affirming St. 507, (1899). Hun 552, (1888). Whether, for purposes of taxa- Dpon the question of taxation of tion, a railway is a street railway mortgage upon the property of or a commercial railroad is consid- 9 lessee's property, see Common- ered in Chap. I, sec. 1, ante, note. OHAPTEE, XI. THE LAW OF NEGLIGENCE APPLIED TO THE CONSTRUCTION, EQUIPMENT AND MANAGEMENT OF STREET RAILWAYS AND THE RELATIVE RIGHTS, DUTIES, AND LIABILITIES OF THEIR PROPRIETORS AND OTHERS IN THE STREETS. j289. Introductory. 290. Excavations and obstructions in the street. 291. Failure to make and repair pavements. 292. Construction and repair of tracks and appliances — live wires in streets. 293. Failure to remove snow and ice from track. 294. Depositing snow on the road- way — use of snow plows. 295. Use of salt on track — acci- dents caused thereby. 296. Character and condition of the cars and their equip- ment. 297. Of the right to use gong and bell. 298. Frightening horses. 299. Failure to use lamps or head- lights. 300. Failure to give warning of ap- proach by bell, gong, or whistle. 301. Collisions at railroad cross- ings. 302. Law of the road — turning to the left. 303. Street cars have the superior right of way. 304. The rule at street crossings. 305. Duty of company to avoid col- lisions. 306. Duty of driver, motor-man or grip-man to look ahead. § 307. Attention of driver, motor- man or grip-man tempora- rily diverted. 308. Operating cars without con- ductor. 309. Degree of care required of company. 310. Injuries to children and in- firm persons. 311. Pedestrians crossing tracks — their rights and duties. 312. Pedestrians attempting to cross track without look- ing. 313. Standing upon or walking along track. 314. Injury to work-men in the street. 315. Driving across tracks without looking. 316. Driving private vehicles along the track. 317. Degree of care required of travelers on streets occu- pied by street railway. 318. Degree of care as affected by nature of employment. 319. Rate of speed. 320. Liability as affected by ordi- nances limiting speed. 321. Collisions with vehicles near track — error of judgment. 322. Special cases of injury to travelers — runaway horses. 323. Collision — presumption of negligence. §289. Introductory — The operation of street railways has teen prolific of litigation between the company and members of 461 462 THE LAW OF STREET RAILWAYS. [§ 289. the general traveling public, and between tbe carrier and its passengers. The nature of the business and the conditions which have called it into existence render numerous accidents almost inevitable. Nothing is more notable in modem economic hfe, especially in America, than the rapid growth of cities in size and population and the increase and improvement in facilities for cheap and rapid transportation. The village street of a few years ago, with but little business and few travelers, ajid perhaps a single line of slow moving one-horse cars, becomes the thronged thoroughfare of a large and busy metropolis of to-day, with from two to four or even six tracks, on which cars are propelled by cable, electricity or steam motors. A hundred persons travel the street where one did before. With the present facilities for rapid transit many business streets are still greatly congested, and without street cars they would be almost impassable. The car must follow its track because it cannot go elsewhere, but other travelers, young and old, the strong and the iafirm, in vehicles ajid on foot, use the entire surface of the street, passing along the tracks and crossing them at every point and at every angle. The street has not been widened, but its daUy use has been increased a hundred fold. The number of injuries caused by collisions could be materially diminished by ordinances regulat- ing the use of streets both by railway companies and by others. It is clear that mimicipal authorities have the power, not only to limit the speed of cars, but also to require that signals or warn- ings should be given, 'and that lamps or head-lights should be used, and to provide on which side of the streete cars shall stop; and it is equally appaa-ent that they have the authority to pre- scribe where the railway may be crossed! and to enforce reason- able regulations as to driving along the tracks. So with reference to the company and its passengers. The interests of both might be protected and promoted by wise legislative and municipal control. A large proportion of the accidents resulting in litiga- tion between them arises from boarding or leaving cars while in motion, leaving the car by the wrong platform, riding upon the platform, steps or running board, overloading the car or by care- lessness in stopping or starting it. The number and frequency of such accidents could be very materially reduced and the com- § 290.] NEGLIGENCE EIGHTS OP TEAVELING PUBLIC. 463 fort of passengers, as well as the convenience of the carrier, very greatly enhanced by the enforcement of judicious public regula- tions. For obvious reasons, but little can be expected from mere private rules for the government of passengers. Another reason why both the company and its patrons, as well as the general public, have a right to demand more efficient public control, is the fact that the larger cars and greater speed authorized by statute or ordinance, coupled with the increase of private travel and the change in its character rendered possible by better pave- ments and induced by the feverish haste of city life, multiply dangers, the remedy for which ought not to be left to the slow and cruel process of individual experience. The character of the business and its necessary environments render inapplicable many of the rules which are almost universally applied to gen- eral traffic railroads. The law of negligence, in its relation to street railways, requires separate treatment, because of the radi- cal difference in the principles of law which govern these two systems of transportation. The decisions, not elsewhere consid- ered collectively, cover a great variety of questions, upon which rulings have been made by the courts of every state in the Union, the Federal Supreme and Circuit Courts, and by various courts in Canada. § 290. Excavations and obstructions in the street ^As stated elsewhere, a company which acquires the right to construct and operate a railway in the street, must lay and maintain its track in such a manner that it will not create a material obstruction to the use of the hig'hway.^ This duty exists independently of statute,^ and may be enforced by an action against the company. Thus it will be held liable for damages caused by unlawfully con- structing and leaving a depression in the street;* or by its failure 'Ante, sec. 58. Citizens' Pass. Ry. Co. v. Ketcham, "Post, sec. 292. 122 Pa. St. 228, 15 Atl. Rep. 773, "Campbell v. Frankford & South- (1888).- wark Pass. Ry. Co., 8 Pa. Co. Ct. See also Ryeberg v. Portland Ca- Rep. 415, (1890) ; but not where the ble Ry. Co., 22 Ore. 224, 29 Pac. depression was left by order of the Rep. 614, (1892) ; Rowell v. Stam- clty engineer to serve as a drain ford St. Ry. Co., 64 Conn. 376, 30 of surface water to a sewer; Same Atl. Rep. 131, (1894), unguarded V. Same, 139 Pa. St. 522, (1891); manhole; Donovan v. Oakland 464 THE LAW OF STREET RAILWAYS. [§290. properly to guard an open trench;* or by placing rails or other materials upon the traveled portion of the street long before they are needed ia the work of construction, thereby unnecessarily obstructing the right of passage;*^ or by taking up old rails and leaving them in piles in the gutter several weeks ;^ or by permit- ting the ends of rails to project beyond a barrier in the street.^ One who is permitted to make excavations in the streets is bound to place them in a safe condition, and no notice is necessaiy to fix such liability,'' nor is it any defense that the city has accepted or subsequently approved the work.^ But the duty of a municipal corporation is only to see that its streets are safe for persons exercising ordinary care and prudence, and the standard of duty of a private corporation is no greater.* As in the case of any other authorized excavation or obstruction, only ordinary care is required in preparing the street for the reception of rails, and if proper care is exercised to prevent accidents, and the neces- sary obstructions to travel are not permitted to remain an un- reasonable length of time, no cause of action can arise in favor Trans. Co., 102 Cal. 245, 36 Pac. Rep. 516, (1894), unguarded post- hole; Donohue v. Syracuse Ry. Co., 11 App. Div. (N. Y.) 525, (1896); Call V. Portsmouth Ry. Co., 69 N. H. 562, 45 Atl. Rep. 405, (1899), un- guarded ditch; Fox v. "Wharton, 64 N. J. L. 453, 45 Atl. Rep. 793, (1900), unguarded excavation; Mahnke v. New Orleans Ry. Co., 104 La. 411, 29 So. Rep. 52, (1900). •Cincinnati St. R. R. Co. v. Nol- thenius, 40 Ohio St. 3767~(I883); McMahon v. Second Ave. R. R. Co., 75 N. Y. 231, (1878). *a Fulton County St. R. R. Co. v. McConnell, 87 Ga. 756, 13 S. E. Rep. 828, (1891). ° Cox V. Southside Pass. Railway Co., 2 Mona. (Pa.) 140, (1889) ; Slay- ton V. West End St. Ry. Co., 174 Mass. 55, 54 N. E. Rep. 351, (1899) ; Thomas v. Consol. Trac. Co., 62 N. J. L. 36, 42 Atl. Rep. 1061, (1898). "Woodrow V. Metropolitan R. R. Co., 149 Mass. 335, (1889), holding the liahility of the company and the contractor to be the same. So where a hose or rope is tlie obstruction, Morhart v. North Jer- sey St. Ry. Co., 64 N. J. L. 236, 45 Atl. Rep. 812, (1899); Indianapolis St. Ry. Co. v. Walton, 29 Ind. App. 368, 64 N. E. Rep. 630, 27 Am. & Eng. R. Cas. (N. S.) 388, (1902); Schlverea v. Brooklyn Heights Ry. Co., 89 App. Div. (N. Y.) 340, (1903). ' Worcester v. Forty-Second St. & Grand St. Ferry R. R. Co., 3 Daly 278, (1870); Southern Express Co. V. Texarkana Water Co., 64 Ark. 131, 15 S. W. Rep. 361, (1891). » Southern Express Co. v. Texar- kana Water Co., supra. » Peetz V. St. Charles St. Ry. Co., 42 La. Ann. 541, (1890). See also Birmingham Union Ry. Co. v. Alex- ander, 93 Ala. 133, 9 So. Rep. 525, (1891). § 291.J NEGLIGENCE EIGHTS OP TRAVELING PtTBLIC. 465 of those who may be injured while attempting to drive over them.^" The duty to guard excavations or to take other precau- tions to prevent accidents, here stated, is not to be so extended as to apply to a track laid over a right of way acquired through private property. Those who voluntarily go upon or near such a track, without the consent of the owner, are trespassers; there- fore, the company is not required to place railings or barricades along embankments constructed on private grounds to prevent accidents to those who may choose to walk there.-^^ § 291. Failure to make and repair pavements. — The right of a municipal corporation to recover from the company the amount of damages adjudged against the former, for injuries caused by the failure of the latter to repair and pave that part of the street which it occupies, has been considered in a former chapter. ^^ Not only is the company liable to the city under such circumstances, but it may, in the first instance, be compelled to respond in damages to the person who was injured.-^* Where it is authorized to take up or disturb any part of the pavement on the line of its road, it is responsible for accidents caused by defects in that portion of the pavement which is under its control." The duty to keep that portion of the pavement in good repair exists " Cowan V. Muskegon Ry. Co., 84 London St. Ry. Co., 18 Ont. Rep. Mich. 583, (1891); Saverlo v. Brook- 122, (1889). lyn Ry. Co., 55 App. Dlv. (N. Y.) 98, " McMahon v. Second Ave. R. R. (1900). In blasOng along a high- Co., 75 N. Y. 231, (1878); Sullivan way, a company, although engaged v. Staten Island Ry. Co., 50 App. lawfully in such work, is liable for Div. (N. Y.) 558, (1900), and other negligence. Mills v. Wilmington cases cited under this section. Ry. Co., 1 Marv. (Del.) 269, 40 Atl. "So held where a horse was in- Rep. 1114, (1894). jured by stepping into a hole be- " Hooper v. Johnstown, Glovers- tween the rails, Conroy v. Twenty- vllle & Kingsboro R. R. Co., 13 N. Third St. R. R. Co., 52 How. Pr. 49, Y. Supp. 151, (1891), holding that (1875); and where a boy who was the company was not liable for In- helping to run an engine to a fire, Juries to a child who fell over an stepped Into a hole in the roadbed unguarded embankment. See also and was injured by the engine, Lukens v. Staten Island Ry. Co., 64 which ran over him, Oakland Ry. App. Div. (N. Y.) 327, (1901). Co. v. Fielding, 48 Pa. St. 320, •^Ante, Chap. IX, sec. 256. See (1864). See also Hyde v. Boston also Carty v. City of London and Ry. Co., 186 Mass. 115, (1904). 30 466 THE LAW OF STEEET EAILWAYS. [§ 292. independently of statute, ordinance, or express agreement.^® The rigkt of tke company to use the street is, in law, no excuse for creating, or failing to remedy, defects in the pavement which endanger others who are in the lawful exercise of their right to use the highway.^* The obligation of the company to keep the street in repair requires that it shall be maintained ia such a con- dition, that the ordinary and expected travel of the locality may pass with reasonable ease and safety.^^ Hence, where an occasion arises for repair, which is of a nature to warrant delay in making it, the obligation to keep in repair carries with it a duty to guard the public against harm from the delay. ^* The fact that the part of the street occupied by the tracks has been paved and kept in repair to the satisfaction of the superintendent of streets is no defense to an action for damages caused by a defect in the pavement or track due to defective construction or failure to repair, for, as between the company and a third person, the judg- ment of the local authorities is not a conclusive test as to the defendant's duty.^® § 292. Construction and repair of tracks and appliances- live wires in streets — ^A street railway company is charged with a common law duty, which is frequently supplemented by obli- gations flowing from the conditions attached to its grant, so to construct, repair and maintain its tracks as to prevent any unnec- " McMahon v. Second Ave. R. R. Co., supra; Cincinnati St. R. E. C!o. Co., supra. v. Nolthenius, 40 Ohio St. 378, "Carpenter v. Central Park, (1883). Ante, Chap. IX, sec. 243. North & East River R. R. Co., 4 -A^s to notice of defect in highway, Daly 550, 11 Abb. Pr. 416, (1872); ^^® Dobbins v. West End St. Ky. Brookhouse v. Union Ry Co.. 132 Co., 168 Mass. 556, 47 N. E. Rep. Mass. 178, (1882). See also Kor- ^^8, (1897). netzski V. Detroit, 94 Mich. 341, 53 " Osgood v. Lynn & Boston R. R- N. W. Rep. 1106, (1892): Citizens' ^o., 130 Mass. 492, (1891). In an St. Ry. Co. V. Sutton, 148 Ind. 169, f """^ ^^^^''^^ ^ *'^T l""?'.^! ^> f "Fenton v. Second Ave. R. R. ''Warner v. Peoples' St. Ry. Co., Co., supra; Schwartz v. Crescent supra. City R. R. Co., supra, In which "Toronto St. Ry. Co. v. Dollery, Blanc, J., said: "The car is not to supra 4:90 THE LAW OF STREET EAILWAYS. [§ 304. but private persons cannot be prevented from drawing heavy weights over the streets occupied by the tracks, unless such use would clearly be injurious to the tracks.^® The public yields none of its rights to make ordinary use of the street, and the companies accept their grants with the implied condition that this right of the public cannot be imnecessarily impaired or lessened. Therefore, the driver of a. private vehicle may cross the tracks, and this right is not confined to occasions when other portions of the street are crowded or obstructed,'" and may drive along and upon the tracks, if he uses due diligence not to inter- fere with the passage of the cars.®^ A proper enforcement of the rights of the parties will defeat a recovery by a private person who has, in disregard of the rights of the company, placed him- self iu position of danger, even if the collision was caused ia part by the failure of the company to exercise ordinary care;*^ but the superior right of the company, as against private vehicles, does Qot justify its servants in asserting that right recklessly,'^ even if the common law rule is supplemented by a city ordinance.'* § 304. The rule at street crossings — As already stated, as a general rule, especially between street crossings, cars have a right of way superior to that of other vehicles and pedestrians, " Second & Third Sts. Pass. Ry. afford such driver a reasonable op- Co. V. Morris, 8 Phila. 304, (1871). portunity for accomplishing his pur- ""Adolph V. Central Park, North pose. & Bast River R. R. Co., 65 N. Y. 554, »= Fenton v. Second Ave. R. R. Co., (1875). supra; Quinn v. Atlantic Ave. R. R. "Post, sec. 316. See also Ward Co., supra; and generally the cases V. New York & Harlem Ry. Co., cited under this section. 79 Hun 390, (1894) ; Deitsch v. '» Chicago West Division Ry. Co. Trans. St. Marys Trac. Co., 155 v. Bert, supra; Wllbrand v. Eighth Mich. 15, 118 N. W. Rep. 489, Ave. R. R. Co., supra; Chicago West (1908); Black v. Staten Island Ry. Division Ry. Co. v. Ingraham, 131 Co., 40 App. Div. (N. Y.) 238, (1899), 111. 659, 23 N. B. Rep. 350, (1890); holding that where a street is so Bdgerton v. O'Neill, 4 Kan. App. 73, narrow that a vehicle cannot be 46 Pac. Rep. 206, (1896) ; Pritchard stopped thereon without obstructing v. Brooklyn Heights Ry. Co., 89 the tracks, the rights of a driver App. Div. (N. Y.) 269, (1903) ; Cam- of a vehicle, who Is on the street den Ry. Co. v. Preston, 59 N. J. L. for the purpose of delivering goods, 264, 35 Atl. Rep. 1119, (1896). and of a street railway company are »• Rend v. Chicago West DivlBlon equal, and that the company should Ry. Co., 8 111, App. 517, (1881), § 305.] NEGLIGENCE — -RIGHTS OF TKAVELING PUBLIC. 491 this preferential right to be exercised ia a reasonable and prudent manner. But this rule does not apply to the crossing of tracks at street iutersections. There the car has a right to cross and must cross the street; and vehicles and foot passengers have a right to cross and must cross the railway track. ITeither has a superior right to the other. The right of each must be exercised with due regard to the right of the other, and in such a careful manner as not unreasoiia.bly to abridge or interfere with the right of the other.*"^ This equality of right, however, does not absolve one who is about to cross the tracks from the duty of taking proper precautions to avoid accidents.*® § 305. Duty of company to avoid collisions. — The fact that travelers should give the right of way to the street car, does not relieve the company from exercising due care to prevent a col- lision.®' In the enjoyment and exercise of its franchise, the com- pany is bound to recognize the rights and necessities of public travel. At common law, it is required to exercise ordinary care, to be measured in each case by the apparent situation, and the » O'Neil V. Dry Dock, East Broad- Ry. Co., 28 Ind. App. 133, (1901) ; way & Battery Ry. Co., 129 N. Y. Chicago St. Ry. Co. v. Iverson, 108 125, 29 N. E. Rep. 84, (1891) ; Buhr- 111. App. 433, (1903) ; Andres v. ens V. Dry Dock, East Broadway & Brooklyn Heights Ry. Co., 84 App. Battery R. R. Co., 53 Hun 571, Div. (N. Y.) 596, (1903); Freeman (1889) ; Shea v. Sixth Ave. R. R. v. Brooklyn Heights Ry. Co., 87 App. Co., 62 N. Y. 180, (1875), holding Div. (N. Y.) 127, (1903); Dow v. that a pedestrian crossing the street Des Moines City Ry. Co., 126 N. W. has the right to pass over the plat- Rep. 918, (Iowa, 1910) ; Duncan v. form of a car when it is stopped so Union Ry. Co., 39 App. Div. (N. Y.). as to obstruct the passage at a 497, (1899), holding that the duty crossing. imposed on the driver of a street See also Thoreson v. La Crosse car approaching a private road. City Ry. Co., 87 Wis. 597, 58 N. W. where he had reason to believe that Rep. 1051, (1894) ; Citizens Ry. Co. persons were likely to cross, was T. Seigrist, 96 Tenn. 119, 33 S. W. the same as that at public cross- Rep. 920, (1895) ; Richmond Ry. Co. ings. V. Garthright, 92 Va. 627, 24 S. E. " Sec. 311, post. Rep. 267, 31 L. R. A. 220, (1896) ; " Chicago West Division Ry. Co. Metropolitan Ry Co. v. Hammett, v. Ingraham, 131 111. 659, 23 N. E. 13 App. Cas. (D. C.) 370, (1898); Rep. 350, (1890); Shea v. St. Paul Barle v. Consolidated Trac. Co., 64 Citizens Ry. Co., 50 Minn. 395, 52 N. N. J. L. 573, 46 Atl. Rep. 613, W. Rep. 902, (1892); Cushing v. (1900); Marchal v. Indianapolis St. Metropolitan St. Ry. Co., 92 App. 492 THE LAW OF STREET RAILWAYS. [§ 305. dangers naturally incident to the business.®* Special duties im- posed by statute or ordinance must be more strictly observed than those not so created. ®® The degree of diligence which the law exacts of the company's servants, as well as of others who are using the street, must be determined with due regard to the character of the instrumentalities employed, such as the weight and momentum of the cars and the impossibility of changing their course to avoid collisions ;^'^ the extent and character of traffic and travel on the streets; ^"^ the crowded condition of the cai-s;^"^ the apparent capacity of those who may be upon or near the track to comprehend their situation and avoid injury;^"* and, generally, all circumstances bearing upon the question of pru- dence or negligence, which exist at the time of the alleged omis- sion of duty. Thus greater vigilance is demanded of the driver at points much frequented by children,^"* and at times when the danger of collision is increased by darkness.-^"® Where the alleged Div. (N. Y.) 510, (1904); Kestner V. Pittsburg Trac. Co., 158 Pa. St. 422, 27 Atl. Rep. 1048, (1893). •« Liddy v. St. Louis R. R. Co., 40 Mo. 506, (1867); Mallard v. Ninth Ave. R. R. Co., 27 N. Y. St. Rep. 801, 9 N. Y. Supp. 666, (1889); Ramsay v. Montreal St. Ry. Co., 32 L. C. J. 52, (1887) ; Anderson v. Minneapolis St. Ry. Co., 42 Minn. 490, (1890). ■* Ramsay v. Montreal St. Ry. Co., supra; Hays v. Gainesville St. Ry. Co., 70 Tex. 602, (1888); Lamb v. St. Louis Cable & Western Ry. Co., 33 Mo. App. 489, (1888) ; McCambley V. Staten Island Ry. Co., 32 App. Div. (N. Y.) 346, (1898). '<" Ramsay v. Montreal St. Ry. Co., supra; Boland v. Missouri R. R. Co., 36 Mo. 484, (1865). '"Heucke v. Milwaukee City R. R. Co., 69 Wis. 401, (1887); Balti- more City Pass. Ry. Co. v. McDon- nell, 43 Md. 534, (1875); Birming- ham Ry. Co. V. Pinchard, 124 Ala. 372, 26 So. Rep. 880, (1899); North Jersey St. Ry. Co. v. Schwartz, 66 N. J. L. 437, 49 Atl. Rep. 683, (1901); Penner v. Wilkes-Barre Trac. Co., 202 Pa. St. 365, (1902). ™ Anderson v. Minneapolis St. Ry. Co., 42 Minn. 490, 493, (1890). i°» Galveston City R. R. Co. v. Hewitt, 67 Tex. 473, 474, 483, (1887) ; JoHet Ry. Co. v. Eich, 96 III. App. 240, (1901). "* Strutzel V. St. Paul City R. R. Co., 47 Minn. 543, 50 N. W. Rep. 690, (1891); Oster v. Schuylkill Trac. Co., 195 Pa. St. 320, 45 Atl. Rep. 1006, (1900); Wallace v. City & Sub. Ry. Co., 26 Ore. 174, 37 Pac. Rep. 477, 25 L. R. A. 663, (1894); Consol. City Ry. Co. v. Carlson, 58 Kan. 62, 48 Pac. Rep. 635, (1897); Walbridge v. Schuylkill Blec. Ry. Co., 190 Pa. St. 274, 42 Atl. Rep. 689, (1899); McFarland v. Blmlra Ry. Co., 120 N. Y. Supp. 292, (1909); Knittel v. United Rys. Co., 128 S. W. Rep. 5, (Mo. 1910). ""Rosenkranz v. Lindell Ry. Co., 108 Mo. 9, 18 S. W. Rep. 890, 891, (1891) ; West Chicago St. Ry. Co. v. McCallum, 169 111. 240, 48 N. B. Rep. 424, (1897); Shelly v. Brunswick § 305.] NEGLIGENCE ^EIGHTS OF TRAVELING PUBLIC. 493 negligence consists of an omissioii of duty suddenly and unex- pectedly arising, it is incumbent on the plaintiff to show that the circumstances were such that the servants of the defendant had an opportunity to become conscious of the facts giving rise to the duty and a reasonable opportunity to perform it.^*" The driver is bound to notice the presence of other vehicles and pedestrians ahead of his car, and should be watchful to see that the way is clear. Where he has reason to apprehend danger, he should regulate the speed of his car so that it may be quickly stopped should occasion require it.^"^ He should, as far as practicable, remain on the front platform, and maintain control of his car.^"* He is not justified in assuming that, because the car is confined to its tracks and a private vehicle can turn in any direction, the driver of the latter will under any and all circumstances get out of his way, and, therefore, although the danger is imminent, take no precautions to avoid a collision.^"' If a person be seen upon the track, who is apparently capable of taking care of himself, the driver may assume that he will leave the track before the car reaches him, and this presumption may be indulged so long as Trac. Co., 65 N. J. L. 639, 48 Atl. mer v. New Orleans City Ry. Co., Rep. 562, (1900). 51 La. Ann. 1689, 26 So. Rep. 441, "» Hestonvllle, Mantua & Fair- (1899); Joliet Ry. Co. v. Eich, 96 mount Pass. R. R. Co. v. Kelley, 111. App. 240, (1901). 102 Pa. St. 115, (1883); Heam v. "'Humbird v. Union St. Ry. Co., St. Charles St. R. R. Co., 34 La. 110 Mo. 76, 19 S. W. Rep. 69, (1892) ; Ann. 160, 162, (1882) ; Thomas v. Cass v. Third Ave. Ry. Co., 20 App. Citizens' Pass. Ry. Co., 132 Pa. St. Div. (N. Y.) 591, (1897); Paine v. 504, 47 Leg. Intel. 223, (1890) ; Bo- San Bernardino Valley Trac. Co., land V. Missouri River R. R. Co., 36 143 Cal. 654, (1904). Mo. 484, (1865); Gallaher v. Cres- "'Brooks v. Lincoln St. Ry. Co., cent City R. R. Co., 37 La. Ann. 288, 22 Neb. 816, (1888) ; Anderson v. (1885); Citizens' St. Ry. Co. v. Minneapolis St. Ry. Co., 42 Minn. Carey, 66 Ind. 396, (1877). The 490, (1890); Mangam v. Brooklyn representative of a person who was R. R. Co., 38 N. Y. 455, 456, (1868) . killed by a car while upon the track This rule is applied even more and under the Influence of liquor, strictly to motormen and gripmen cannot recover, unless the driver of than to drivers of horse-cars, the car, after becoming aware of "" Gallagher v. Coney Island & the danger, could, by the exercise Brighton R. R. Co., 4 N. Y. Supp. of reasonable care and prudence, 870, (1889). See also Cohen v. have prevented the accident. But- Dry Dock, Bast Broadway & Bat- ton V. Hudson River R. R. Co., 18 tery R. R. Co., 69 N. Y. 170, (1877) ; N. Y. 248, (1858). See also Kra- Joliet Ry. Co. v. Barty, 96 111. App. 494 THE LAW OF STREET RAILWAYS. [§ 305. the danger of injuring him does not become imminent, but no longer. But he cannot act upon that presumption with reference to a child too young to appreciate its danger.^^" So the driver has a right to suppose that a person, when duly warned, wiU not attempt to cross the street immediately in front of a car; and, if due warning is given and not heeded, and the driver cannot avert the accident, although he endeavors to do so, the iajured person cannot recover.^^^ "When there is imminent danger of striking a person who is at the time crossing the track, it is the duty of those in charge of a car to stop it as soon as may be done -with due regard to the safety of the car and its passengers. ■'^^ It is held not to be, as a matter of law, sufficient care on the part of a grip- man, when approaching a curve in the street, to ring the bell, and, having seen that the way is clear in front, to go ahead without thereafter looking to the right or left.^^* The company is required, not only to maintain its tracks in a proper condition and use cars which are safe and fit for the purpose,-'^* but it must exercise reasonable care to man its cars with employes who are competent to discharge their duties.-'-^® 351, (1901) ; Chicago General Ry. Co., 70 Tex. 602, (1888) ; Laethem v. Co. V. Carroll, 91 111. App. 356, Ft. Wayne Ry. Co., 100 Mich. 297, (1899). (1894). "^o Galveston City R. R. Co. v. "'Winters v. Kansas City Cable Hewitt, 67 Tex. 473, 474, 480, (1887). Ry. Co., 99 Mo. 509, (1889). "•Washington & Georgeto-wn R. "'Ante, sec. 292. R. Co. v. Gladmon, 15 Wall. 401, "' In an, action for personal inju- (1872) ; Schulte v. New Orleans City ries, where itappearedthatthe driver & Lake R. R. Co., 44 La. Ann. 509, of a street car was a boy fifteen 10 So. Rep. 811, (1892) ; West Chi- years of age and lacked the strength cago St. Ry. Co. v. Schwartz, 93 needful for his employment, and 111. App. 387, (1900); McNab v. that a competent driver could have United Rys. Co., 94 Md. 719, 51 Atl. stopped the car before running over Rep. 421, (1902). a foot-passenger, a judgment for the •" Pope V. Kansas City Cable Ry. person injured was sustained. Wall Co., 99 Mo. 400, (1889); Lamb v. v. Helena St. Ry. Co., 12 Mont 44, St. Louis Cable & Western Ry. Co., 29 Pac. Rep. 721, (1892). It was held 33 Mo. App. 489, (1889) ; Maschek not to be negligence per se to em- v. St. Louis R. R. Co., 71 Mo. 276, ploy a driver who was blind in one (1879) ; Moroney v. Brooklyn City eye, but that if he turned his head R. R. Co., 9 N. Y. Supp. 546, (1890) ; away from the direction in which Cohen v. Dry Dock, East Broadway his car was moving, his defective & Battery R. R. Co., 69 N. Y. 170, sight was a circumstance to be con- (1877); Hays v. Gainesville St. Ry. sidered in determining whether he § 306.] NEGLIGENCE EIGHTS OE TKAVEEING PUBLIC. 495 § 306. Duty of driver, motor-man or grip-mau. to look ahead The man who controls the movements of the car owes duties to the general public, to the patrons of the road and to his em- ployer. Although the duty which he and his employer owe to the public is said to be paramount to that which they owe each other,"* the duties he owes to those who travel in carriages or on foot, and to those who are carried in street cai-s, are alike public duties. One of the principal obligations imposed upon him by law, for the protection of the traveling public, is, that he should exercise due diligence to avoid injury to others who are on the highway. But in discharging this duty, he must not dis- regard the rights of passengers and intending passengers. They have a right to be carried at a reasonable rate of speed and with- out unnecessary stops. Those who wish to board, signal the driver or motor-man, usually from the sidewalk and by motion or gesture. It would be manifestly impracticable, or at least imreasonable, to attempt to enforce a rule requiring that all intending passengers should await the approach of the car in the roadway close to the track; therefore, the driver must frequently look towards the sides of the street, especially at crossings, in order to prepare, if necessary, to stop for the purpose of receiving passengers. As long as street cars, for the convenience of their patrons and by the permission or command of public authorities and with the sanction of courts, are permitted or compelled to stop on signal to receive and discharge passengers, and while cars are permitted to run without conductors, it will be illogical to hold, as a rule of law, that, whenever the car is in motion, the driver must remain sitting or standing on the ftont platform and keep a constant lookout ahead, with the lines in one hand and the brake handle in the other, ready on an instant's warning to bring his car to an immediate stop.^^'^ According to the general rule, was exercising due care. Sllber- "« Anderson v. Minneapolis St. stein V. Houston, W. St. & P. F. R. Ry. Co., 42 Minn, 490, 44 N. W. R. Co., 4 N. Y. Supp. 843, (1889). Rep. 518, 1 Am. R. R. & Corp. Rep. But In Rice v. Crescent City Ry. Co., 651, (1890). 51 La. Ann. 108, 24 So. Rep. 791, "'The following cases measure (1899), it was held that a motorman the driver's duty by an arbitrary must have the "full and complete rule, not in harmony with the pre- use and sight of both eyes." vailing doctrine: Brooks v, Lin- 496 THE LAW OF STEEET EAILWAYS. [§ 306. which is sustained by numerous decisions, it is the common law duty of those in charge of a car, and particularly of the driver, motor-man or grip-man, to exercise ordinary care and diligence to ascertain whether the track ahead is clear, and to avoid strik- ing persons or objects upon or near the track. He must give the track and street ahead such attention as will enable him, as far as practicable, to know its condition and avoid inflicting unnecessary injury upon others. But the law does not command him, at his own peril, or at the peril of his employer, to keep his eyes constantly directed to the track or street in front of his car.-^^^ Negligence cannot be predicated upon the bare coin St. Ry. Co., 22 Neb. 816, 824, (1888); West Philadelphia Ry. Co. V. Mulhair, 6 W. N. C. (Pa.) 508, (1879), laying down the rule, "the driver should be looking before him and never suffer his attention to be diverted." See also McCully V. Clark, 4 W. N. C. (Pa.) 186, (1877); Schnur v. Citizens Trac. Co., 153 Pa. St. 29, 25 Atl. Rep. 650, (1893); Reilley v. Philada. Trac. Co., 176 Pa. St. 335, 35 Atl. Rep. 133, 5 Am. & Eng. R. Cas. (N. S.) 399, (1896); Harkins v. Pittsburg Trac. Co., 173 Pa. St. 149, 33 Atl. Rep. 1044, 3 Am. & Eng. R. Cas. (N. S.) 302, (1896); City Ry. Co. v. Thompson, 20 Tex. Civ. App. 16, 47 S. W. Rep. 1038, (1898). "'Gallaher v. Crescent City R. R. Co., 37 La. Ann. 288, (1885); Wright V. Third Ave. R. R. Co., 5 N. Y. Supp. 707, (1889); Pendril V. Second Ave. R. R. Co., 34 N. Y. Super. 481, (1872); Kennedy v. St. Louis R. R. Co., 43 Mo. App. 1, 5, (1890); Boland v. Missouri R. R. Co., 36 Mo. 484, (1865); Citizens' St. Ry. Co. V. Carey, 56 Ind. 396, (1877); Hearn v. St. Charles St. R. R. Co., 34 La. Ann. 160, 162, (1882); Citizens' Pass. Ry. Co. v. Thomas, 132 Pa. St. 604, 47 Leg. In- tel. 223, (1890). See generally, as to the degree of watchfulness required of driv- ers, motor-men and grip-men, the following cases in which courts have endeavored to apply the rule to the particular facts involved: Baltimore City Pass. Ry. Co. v. McDonnell, 43 Md. 534, (1875); Hays V. Gainesville St. Ry. Co., 70 Tex. 602, (1888); Cords v. Third Ave. R. R. Co., 56 N. Y. Super. 319 and 570, (1889); Bulger v. Albany Ry. Co., 42 N. Y. 459, (1870); Strutzel V. St. Paul City R. R. Co., 47 Minn. 543, 50 N. W. Rep. 690, (1891); Louisville City Ry. Co. v. Wood, 2 Ky. Law Rep. 387, (1881); Lawrence v. Pendleton St. R. R. Co., 1 Cin. Super. Ct. 180, (1871); Levy V. Dry Dock, Bast Broadway & Battery R. R. Co., 12 N. Y. Supp. 485, (1890); San Antonio St. Ry. Co. V. Calllouette, 79 Tex. 341, 15 S. W. Rep. 390, (1891); Lamb v. St. Louis Cable & West- ern Ry. Co., 33 Mo. App. 489, (1889); Moroney v. Brooklyn City R. R. Co., 9 N. Y. Supp. 546, (1890); Maschek v. St. Louis B. R. Co., 71 Mo. 278, (1879) ; Pope v Kansas City Cable Ry. Co., 99 Mo. 400, 12 S. W. Rep. 891, (1889); Winters v. Kansas City Cable Ry. Co., 99 Mo. 509, (1889); Hum- § 306.] NEGLIGENCE EIGHTS OE TEAVELING PUBLIC. 497 fact that the driver is looking in any particular direction at any particular time.^^^ He. is not required to keep a watch on each side of the car to the rear of the front platform,^^" and where he fails to see a child of tender years which approaches the car in front of the rear platform and falls under the wheels it is in law merely an unavoidable accident in nowise affecting the lia- bility of the company. ■'^^ His attention may, without negligence on his part, be momentarily diverted by a passenger entering the car.-'^^ He may look up and down an intersecting street, if he does not withdraw his attention from the car for an imdue length of time, and if a person attempts to drive across the track directly in front of the approaching car, he is guilty of contributory negligence, which will bar an action for injuries sus- tained, even though it appears that by the exercise of extra- ordinary effort the car might have been stopped in time to avoid bird V. Union St. Ry. Co., 110 Mo. 76, 19 S. W. Rep. 69, (1892) ; War- ner V. Peoples' St. Ry. Co., 141 Pa. St. 615, (1891); Chicago West Division Ry. Co. v. Ingraham, 131 111. 659, 23 N. K. Rep. 350, (1890); Heucke v. Milwaukee City R. rt. Co., 69 Wis. 401, (1887); Mc- Coy V. Milwaukee St. Ry. Co., 88 Wis. 56, 59 N. W. Rep. 453, (1894) ; Liddy v. St. Louis R. R. Co., 40 Mo. 506, (1867) ; Mangam v. Brook- lyn R. R. Co., 38 N. Y. 455, (1868) ; Fenton v. Second Ave. R. R. Co., 59 Hun 99, (1890) ; Galveston City R. R. Co. V. Hewitt, 67 Tex. 473, (1887); Citizens' St. Ry. Co. v. Steen, 42 Ark. 321, (1883); Kelly V. Hendrie, 26 Mich. 255, (1872); Hyland v. Yonkers R. R. Co., 4 N. Y. Supp. 305, (1889); Hyland v. Yonkers R. R. Co., 1 N. Y. Supp. 363, (1889); Anderson v. Minne- apolis St. Ry. Co., 42 Minn. 490, 493, (1890); Duncan v. Rome St. Ry. Co., 99 Ga. 98, 24 S. E. Rep. 953, (1896); Louisville Ry. Co. v. French, 24 Ky. Law Rep. 1278, 71 S. 'W. Rep. 486, 29 Am. & Eng. R. 32 Cas. (N. S.) 473, (1903); West Chi- cago St. Ry. Co. V. Peters, 196 111. 298, 63 N. E. Rep. 662, 25 Am. & Eng. R. Cas. (N. S.) 612, (1902); Reiners v. Washington & George- town Ry. Co., 9 App. Cas. (D. C.) 19, (1896) ; Weissner v. St. Paul City Ry. Co., 47 Minn. 468, 50 N. W. Rep. 606, (1891); Schmidt v. St. Louis Ry. Co., 149 Mo. 269, (1898). "" "It is his duty to keep a dill- gent lookout both forward and to the right and left, but it is prac- tically impossible that he should have his head turned towards three points of the compass at one and the same moment." Per Rom- bauer, Ch. J., in Kennedy v. St. Louis R. R. Co., 43 Mo. App. 1, (1890). ^ Lawrence v. Pendleton St. R. R. Co., 1 Cin. Super. Ct. 180, (1871). •"^Gallaher v. Crescent City R. R. Co., 37 La. Ann. 288, (1885); Bulger v. Albany Ry. Co., 42 N. Y. 459, (1870). ^Citizens' St. Ry. Co. v. Carey, 56 Ind. 396, (1877). 498 TiiK LAW OF si'jtjiET jiAiLWAYs. | § ;;()7. the collision."^ If the driver stops his car for the purpose, of removing a passenger or driving away mischievous boys, it i* not culpable negligence to start it agaia without passing around in front of the horses to ascertain whether any person is in danger; and if during his temporary absence a small child has unexpectedly reached the track, whom, the driver cannot see from his place on the front platform, and is run over, the company will not be liable for damages sustained.^^* A greater degree of watchfulness is necessary at street intersections, especially at crossings which are usually thronged with vehicles and persons on foot,^^® and at curves in the street or route.^^® Until the con- trary is shown it will be assumed that a driver did his duty in looking over his pathway and would have avoided whatever it was his duty to avoid ;-'^^ but where it appears that if the driver had looked in a certain direction he might have avoided the injury, the question of his negligence should be submitted to the jury.''* § 307. Attention of driver, motor-man or gprip-man temporarily diverted. — ^As we have seen,'^* the general rule which requires the driver or motor-man to keep a lookout ahead of his car is not to be construed so literally or strictly as to prevent the discharge of the duties which he owes to the passengers and to his employer. "Whether or not it is in law negligence on his part "^Citizens' Pass. Ry. Co. v. boring hill and across the track, Thomas, 132 Pa. St. 504, 19 Atl. although such conduct on the part Rep. 286, (1890). of the children Is unlawful. '"Hearn v. St. Charles St. R. R. '^ Winters v. Kansas City Cable Co., 34 La. Ann. 160, 162, (1882). Ry cc, 99 Mo. 509, (1889); Wahl- >^ Baltimore City Pass. Ry. Co. g^g^. ^ Market St. Ry. Co., 132 Cal. V. McDonnell, 43 Md. 534, (1875); ggg^ gg p^c. Rep. 308, (1901). Chicago City Ry Co. v. Robinson, ^^^^^^ ^_ ^^^^^ ^^^_ ^^ ^_ Co., 56 N. Y. Super. 319, (1889). 127 111. 1, 18 N. B. Rep. 772 (1888); Strutzel v. St. Paul City R. R. Co., 47 Minn. 543, 50 N. W. ''^ Heucke v. Milwaukee City R. Rep. 690, (1891), holding that the «• Co., 69 Wis. 401, (1887); Wright driver should be more watchful v. Third Ave. R. R. Co., 5 N. Y. when approaching a crossing Supp. 707, (1889); Levy v. Dry where he has reason to believe that I>ook, East Broadway & Battery B. young children are engaged in R. Co., 12 N. Y. Supp. 485, (1890). coasting or sliding down a neigh- "* Ante sec. 306. § 307.] NEGLIGENCE lUGlITS OF TRAVELING PUBLIC. 499 to direct liis attention elsewhere than in front of his car must depend upon the facts of each case.^^" No presumption of negli- gence arises fi-oni the mere fact that his attention was directed towards his car or the sidewalk. The circumstances must give legal character to his act. In the first instance, he must judge what it is prudent to do; but he must exercise ordinary care and caution in view of his knowledge, or means of knowledge, of the situation and surroundings at the time. If he fails to do so, his conduct amounts to negligence, as, for instance, where he permits his attention to be so engrossed by conversation with passengers as to prevent his keeping a proper lookout ahead j^*-' and, under some circumstances, if he permits his car to proceed while mak- ing change for a passenger, ^^^ or while looking at a fire in the neighborhood,^*^ or while looking back at a car which has just passed,-'** or while talking to a friend on the platform,-'*^ or while idly gazing at persons across the street.-'*' In a ease where it appeared that a child, 'n"ho attempted to cross the track from ■™ Meyer v. Lindell Ry. Co., 6 Mo. App. 27, 31, (1878); Mentz v. Sec- ond Ave. R. R. Co., 2 Robt. 356, (1864); Citizens' Pass Ry. Co. v. Foxley, 107 Pa. St. 537, (1884); Hearn v. St. Charles St. R. R. Co., 34 La. Ann. 160, 162, (1882); Citi- zens' Pass. Ry. Co. v. Thomas, 132 Pa. St. 504, 47 Leg. Intel. 223, (1890) ; Hyland v. Tonkers R. R. Co., 4 N. Y. Supp. 305, (1889) ; Anderson v. Min- neapolis St. Ry. Co., 42 Minn. 490, 493, (1890); Heucke v. Milwaukee City R. R. Co., 69 Wis. 401, (1887), ■where a passenger -was injured; Sheets v. Connolly St. Ry. Co., 54 N. J. L. 518, 24 Atl. Rep. 483, 484, (1892); Picard v. Ridge Ave. Pass. Ry. Co., 147 Pa. St. 195, 23 Atl. Rep. 566, (1892); Baier v. Camden Ry. Co., 68 N. J. L. 42, 52 Atl. Rep. 215, 26 Am. & Eng. R. Cas. (N. S.) 911, (1902) ; Carlson v. Lynn Ry. Co., 171 Mass. 388, 52 N. E. Rep. 520, (1899) ; Karahuta v. Schuylkill Trac. Co., 6 Pa. Super. Ct. 319, (1898). "1 Citizens' Pass. Ry. Co. v. Fox- ley, supra. "= Hyland v. Yonkers R. R. Co., 1 N. Y. Supp. 363, (1888) ; Hyland v. Yonkers R. R. Co., 4 N. Y. Supp. 305, (1889); Anderson v. Minne- apolis St. Ry. Co., 42 Minn. 490, 493, (1890). But the fact that it is the duty of the drivers to collect fares cannot be considered by the jury -where there is no evidence that at the time in question he -was engaged in the performance of that duty. Sheets v. Connolly St. Ry. Co., su- pra. See also McCarthy v. Cass Ave. Ry. Co., 92 Mo. 536, 540, 4 S. W. Rep. 516, (1887). "" Commonwealth v. Metropolitan R. R. Co., 107 Mass. 236, (1871). "^'Collins V. South Boston R. R. Co., 142 Mass. 301, (1886). "' Mentz V. Second Ave. R. R. Co., supra; Oldfield v. New York & Har- lem R. R. Co., 14 N. Y. 310, 311, (1856). "i* Baltimore City Pass. R. R. Co. V. McConnell, 43 Md. 534, 553, (1875). 500 THE LAW OF STKEET RAILWAYS. [§ 308. twenty to thirty feet in advance of the horses, was run down and killed, while the car was going down grade towards a crossing at the usual rate of speed, and the driver was looking into the car, it was held to be a proper case to submit to the jury as to the driver's management of the car.^^'^ § 308. Operating cars without conductor. — ^Although it has been held in several cases that it is not, as a matter of law, negligence to run a horse-car with only one man in charge, ^^^ it may, nevertheless, be negligence under the circumstances of a given case, and the fact that the company manned its cars with a driver only may be submitted to the jury with other facts as a circumstance bearing upon the issue of negligence. ■''* But the con- ditions under which caxs are propelled by steam motors, endless- cable or electricity, are so different from those which affect the question of negligence in the management of horse-cars, that the reasons for the general rule which courts have applied to the lat- ter may lose much of their force when applied to the former. If it is more dangerous to the traveling public, as well as to passen- gers, to run heavier cars, sometimes in trains, propelled at a high rate of speed, under the control or m.anagement of a motor-man ^ Levy V. Dry Dock, East Broad- Ry. Co. v. Carey, 56 Ind. 396, (1877) ; way & Battery R. R. Co., 12 N. Y. Hearn v. St. Charles St. R. R. Co., Supp. 485, (1890) ; Kroesen v. New 34 La. Ann. 160, 162, (1882) ; Hyland Castle Elec. St. Ry. Co., 198 Pa. St. v. Yonkers R. R. Co., 1 N. Y. Supp. 26, (1901). 363, (1888); Anderson v. Mlnneapo- i» Brooklyn Crosstown R. R. Co. lis St. Ry. Co., 42 Minn. 490, 493, V. Brooklyn, 37 Hun 413, (1885); (1890); Sheets v. Connolly St. Ky. Allen V. Dry Dock, Bast Broadway Co., 54 N. J. L. 518, 24 Atl. Rep. & Battery R. R. Co., 2 N. Y. Supp. 483, (1892) ; City Elec. Ry. Co. v. 738, (1888); Lamline v. Houston, Jones, 61 111. App. 183, (1895); West Side & P. F. R. R. Co., 14 Palmer v. Winona Ry. Co., 78 Minn. Daly 144, (1887) ; Ganiard v. Roch- 138, 80 N. W. Rep. 869, 22 Am. & ester City & Brighton R. R. Co., Eng. R. Cas. (N. S.) 696, (1899); 50 Hun 22, 24, (1888); Bishop v. Root v. Des Moines Ry. Co., 122 Union R. R. Co., 14 R. L 310, (1885). la. 469, (1904). In Russell v. "• Allen V. Dry Dock, East Broad- Shreveport Ry. Co., 50 La. Ann. way & Battery R. R. Co., supra; 501, 23 So. Rep. 466, (1898), the court Lamline v. Houston, West Side & said: "There was, we take it, abso- P. F. R. R. Co., supra; Ganiard v. lute necessity for the presence of a Rochester City & Brighton R. R. conductor to assist the motorman, Co., supra; Bishop v. Union R. R. who had only heen a short time Co., supra. See also Citizens' St. in the service of the company." § 309.] NEGLIGENCE EIGHTS OF TRAVELING PUBLIC. 501 or grip-man alone, cases may arise in which the omission to employ both a motor-man and conductor should be considered neg- ligence per se.^^®* § 309. Degree of care required of company The same degree of care to prevent injuries to other travelers is not required of the carriers of passengers upon street cars drawn by horses, or propelled by other power at a moderate rat© of speed, as of railroad companies whose cars are propelled by steam. It is generally held that no greater degree of care as to pedestrians or private vehicles in the street is demanded of a street railway company than is exacted of the owner of any other vehicle.-'*** As to members of the general public, between whom and the com- pany no relation arising out of contract, express or implied, exists, the employes of the company are only bound to exercise what amounts, under all the circumstances of the case, to ordi- nary care and prudence."'*^ The degree of care which should be '"a. Since the first edition was pub- lished it has been so held in Rus- sell V. Shreveport Ry. Co., 50 La. Ann. 501, 23 So. Rep. 466, (1898); City Elec. Ry. v. Jones, 61 111. App. 183, (1895) ; and in Redfield v. Oak- land Consol. St. Ry. Co., 110 Cal. %n, (1895). ^"Unger v. Forty-Second St. & Grand St. Ferry R. R. Co., 51 N. Y. 497, (1873). ""Pendleton St. R. R. Co. t. Shires, 18 Ohio St. 255, (1868) ; Pen- dleton St. R. R. Co. V. Stallman, 22 Ohio St. 1, (1871); Etherington v. Prospect Park & Coney Island R. R. Co., 88 N. T. 641, 642, (1882); Folatio V. Broadway & Seventh Ave. R. R. Co., 9 Daly 243, (1880) ; Unger v. Forty-Second St. & Grand St. Ferry R. R. Co., 6 Robt. 237, (1868) ; Adsit V. Catskill Elec. Ry. Co., 88 App. Div. (N. Y.) 167, (1903); Potts v. Chi- cago City Ry. Co., 33 Fed. Rep. 610, (1887); Roller v. Sutter St. R. R. Co., 66 Cal. 230, (1884), holding that only ordinary care is required in the operation of cars propelled by dummy engines; Ft. Worth St. R. R. Co. v. Witten, 74 Tex. 202, 11 S. W. Rep. 1091, (1889); Boland v. Mis- souri R. R. Co., 36 Mo. 484, (1865); Cogswell V. West St. Ry. Co., 5 Wash. 46, 31 Pac. Rep. 411, (1892); Baltimore Trac. Co. v. Wallace, 77 Md. 435, 26 Atl. Rep. 518, (1893); Jacquin v. Grand Ave. Cable Co., 57 Mo. App. 320, (1894); Cawley v. La Crosse City Ry. Co., 106 Wis. 239, (1900); Chicago St. Ry. Co. v. Abler, 107 111. App. 397, (1903); Moran v. Leslie, 33 Ind. App. 80, (1904); Searles v. Elizabeth Ry. Co., 70 N. J. L. 388, (1904); McKeon v. Con- necticut Ry. Co., 75 Atl. Rep. 139, (Conn. 1910). But in several cases it has been held that the company is bound to exercise more than ordinary care. Thus, in Galveston City R. R. Co. v. Hewitt, 67 Tex. 473, (1887), It was held that the care necessary to avoid injury to one on the track be- fore an advancing car embraces 502 THE LAW or STEEET RAILWAYS. [§ 309. exercised to avoid coUisions is suck watcMulness and precaution as are fairly proportioned to the dangers to be avoided, judged by the standard of common prudence and experience."^ So in the movement of steam cars from point to point through city streetfi by animal power. ^*^ But when the streets of a city are diverted from their ordinary and legitimate uses, by special license, to a private person for his own benefit in the pursuit of his business, which involves constant risk and danger, as for example, the operation of a private railroad, he is bound, in the exercise of the privilege, to use extraordinary care.-*** And in moving street cai-s in an unusual manner, which is not rendered familiar by common observation, as for instance, by side movement upon a car-shift from one track to another, greater care and circumspection must be exercised than that usually required in moving them in the ordinary manner."'' The degree of care required at common law may be supplemented and enlarged by ordinance; and the failure to discharge the specific duty so imposed may be enforced in an action for damages, notwithstanding the penalty incurred by fail- ure to discharge the public duty."® Greater vigilance and cau- tion should be exercised to prevent injuries to children and infirm persons than the law demands for the protection of adults appar- ently in possession of normal strength and all their faculties."' every degree of diligence; in Ram- of tracks and appliances see sec. say V. Montreal St. R. R. Co., 32 L. 292, ante. C. J. 52, (1887), that conductors and ^^ Citizens' St. Ry. Co. v. Steen, 42 drivers have need to exercise not Arlt. 321, (1883). only ordinary but special care in ^" Baltimore & Ohio R. R. Co. v. the discharge of their duties; in State, 29 Md. 460, (1868) ; Baltimore Johnson v. Hudson River R. R. Co., & Ohio R. R. Co. v. Bahrs, 28 Md. 13 N. Y. Super. 633, (1857), affirmed 647, (1869). in 20 N. Y. 65, (1859), that those ""Wilson v. Cunningham, 3 Cal. who operate street cars must exer- 241, (1853). else "the utmost care and diligence," "" Gordon v. Grand St. & New- and employ all the measures of pro- town R. R. Co., 40 Barb. 546, (1873). tection that the highest prudence ^« Fath v. Tower Grove & Lafay- would suggest. In Denver Tram- ette Ry. Co., 105 Mo. 537, 16 S. way Co. V. Reld, 4 Colo. App. 53, W. Rep. 913, (1891). See also 35 Pac. Rep. 269, (1893), it was Galbraith v. West End St. Ry. Co., held that electric car operators 165 Mass. 572, 43 N. B. Rep. 501, must exercise "extraordinary care." (1896). As to degree of care required in '■" Pendril v. Second Ave. H. E. the construction and maintenance Co., 34 N. Y. Super. 481, (1872); § 310.] NEGLIGENCE ^EIGHTS OF TRAVELING PUBLIC. 503 § 310. Injuries to children and infirm persons As we have seen,^** a greater degree of vigilance and caution must be observed in controlling the movements of the car to prevent injuries to children and persoais who are known, or appear, to be infirm than is required for the protection of adults not laboring under such disabilities.^'" Wlien a child is of tender years, the employes of the company have no right to act on the presump- tion that he -will leave the track, but must use due care to pre- vent injuring him, the degree of caution to be measured by the apparent ignorance and helplessness of the child.-''*' So it is negligence to run over a child, who, although not seen in time to prevent the accident, could have been seen by the exercise of proper care.'''^ But if a child suddenly and unexpectedly appear Jacksonville St. Ry. Co. v. Chappell, 21 Fla. 175, (1885); Brennan v. Fair Haven & Westville R. R. Co., 45 Conn. 284, (1877); Cowan v. Third Ave. Ry. Co., 9 N. Y. Supp. 610, (1890); West Chicago St. Ry. Co. V. Staltenberg, 62 111. App. 420, (1895) ; San Antonio St. Ry. Co. v. Mechler, 87 Tex. 628, 30 S. W. Rep. 899, (1895); Citizens St. Ry. Co. v. Hamer, 29 Ind. App. 426, (1902); Forrestal v. Milwaukee Ry. Co., 119 Wis. 495, (1903). See also Citizens' Rapid T. Co. v. Dew, 100 Tenn. 317, 45 S. W. Rep. 790, 40 L. R. A. 518, (1897); Meisch v. Rochester Ry. Co., 72 Hun 604, (1893); as to duty of care to avoid Injury to animals. Smith v. St. Paul City Ry. Co., 79 Minn. 254, (1900); West Chicago Ry. Co. v. Klecka, 94 111. App. 346, (1901). "' Ante sec. 305, 309. "°As to the care required to avoid injury to deaf, aged and infirm persons, see the following cases: Buttell v. Jersey City Ry. Co., 59 N. J. L. 302, (1896) ; Lyons v. Bay Cities Consol. Ry. Co., 115 Mich. 114, (1897); Webster v. New Or- leans Ry. Co., 51 La. Ann. 299, (1899); Johnson v, St. Paul City Ry. Co., 67 Minn. 260, 36 L. R. A. 586, (1897) ; Beem v. Tama Ry. Co., 104 la. 563, (1898); Mauer v. Brooklyn Heights Ry. Co., 87 App. Div. (N. y.) 119, (1903); Bennett V. Metropolitan St. Ry. Co., 122 Mo. App. 703, (1907) ; Adams v. Boston Ry. Co., 191 Mass. 486, (1906); Haight v. Hamilton St. Ry. Co., 29 Ontario Rep. 279, (1898). ""Galveston City R. R. Co. v. Hewitt, 67 Tex. 473, 483, (1887); Mallard v. Ninth Ave. R. R. Co., 27 N. Y. St. Rep. 801, 7 N. Y. Supp. 666, (1889); Nelson v. Cres- cent City Ry. Co., 49 La. Ann. 491, (1897); Chicago City Ry. Co. v. Tuohy, 196 111. 410, (1902) ; Murray V. Patterson Ry. Co., 61 N. J. L. 301, (1898) ; Tishacek v. Milwaukee Ry. Co., 110 Wis. 417, (1901); Ta- tarewicz v. United Trac. Co., 220 Pa. St. 560, (1908). The same rule is applied in gen- eral railroad cases, although the child is a trespasser. Indianapolis P. & C. Ry. Co. V. Pitzer, 109 Ind. 179, 10 N. E. Rep. 700, (1887). "" So held where a child three years of age suddenly ran towards the track when the car was ninety feet distant, Shenners v. West Side 504 THE LAW OF STREET EAILWAYS. [§ 310. in the vicinity of the track, under such circumstances that by the exercise of proper caution and attention the driver could not have discovered his presence in time to avert an accident, it is immaterial whether he was seen or not, and, in such a case, the company will not be liable.^^^ It will be considered in law a mis- adventure and not the result of the company's negligence, having been so held where a child eight years old started across the St. Ry. Co., 78 Wis. 382, 47 N. W. Rep. 622, (1890); where a child ran and fell four feet in front of the horse, the evidence tending to show that the car, although the horse was going at a slow trot, could have been stopped in two feet (a very improbable statement, see sec. 403, post), Rosenkranz v. Lindell St. Ry. Co., 108 Mo. 9, 18 S. W. Rep. 890, (1891); where a child ten years of age stood within two feet of the track with her back to the car, which was fifty feet distant and approached at a rapid rate without slacking its speed. Mallard v. Ninth Ave. R. R. Co., supra; Ihl v. Forty- second St & Grand St. Ferry R. R. Co., 47 N. Y. 317, (1872); where a boy was run down while coasting in plain view of the driver and at a place where he knew children were accustomed to engage in that pas- time, Strutzel V. St. Paul City Ry. Co., 47 Minn. 543, 50 N. W. Rep. 690, (1891); where a child attempted to cross twenty or thirty feet in front of the horses, the driver being in- side the car. Levy v. Dry Dock, East Broadway & Battery Ry. Co., 12 N. Y. Supp. 485, (1890) ; where a child fourteen months old crawled upon the track some distance ahead of the mule which the driver was urg- ing forward into a more rapid trot by slapping it with the lines, San Antonio St. Ry. Co. v. Caillouette, 79 Tex. 341, 15 S. W. Rep. 390, (1891) ; where a child three years of age came upon the track about thirty feet ahead of the mules while the driver was inside collecting fares, Anderson v. Minneapolis St. Ry. Co., 42 Minn. 490, (1890) ; where a child aged three years and seven months was run over while the driver was giving his exclusive attention to a pigeon he had caught, Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 460, (1868). In each of the foregoing cases the reviewing court refused to disturb the verdict against the company based on the alleged negligence of the driver. See also Mitchell v. Tacoma Ry. Co., 9 Wash. 120, 37 Pac. Rep. 341, (1894) ; Phillips v. Duquesne Trac. Co., 183 Pa. St. 255, 38 Atl. Rep. 611, (1897); Baird v. Citizens' Ry. Co., 146 Mo. 265, (1898) ; Adams v. Nassau Elec. Ry. Co., 51 App. Div. (N. Y.) 241, (1900). ""Graham v. Consolidated Trac. Co., 64 N. J. L. 10, 44 Atl. Rep. 964, (1899) ; Greenberg v. Third Ave. R. R. Co., 35 App. Div. (N. Y.) 619 (1898); Perry v. Macon Consoli- dated Ry. Co., 101 Ga. 400, 29 S. E. Rep. 304, (1897) ; Gorman v. Louis- ville Ry. Co., 24 Ky. Law Rep. 1938, 72 S. W. Rep. 760, (1903); Klerzen- kowskl V. Philada. Trac. Co., 184 Pa. St. 459, 39 Atl. Rep. 220, (1898); Mul- cahy V. Electric Trac. Co., 185 Pa. St 427, (1898) ; Funk v. Electric Trac. Co., 175 Pa. St 559, (1896); Camp- bell V. New Orleans Ry. Co., 104 La. 183, 28 So. Rep. 985, (1900), § 311.J NEGLIGENCE HEIGHTS OF TRAVELING PUBLIC. 505 street immediately behind an up^town car near the middle of a block where there was no crossing, and attempted to pass in front of a down-town car;^''^ where a boy was run over by one car while attempting to board another car from between parallel tracks, and the driver after discovering the danger did all he could to prevent the accident ;^^* where a child attempted, without the driver's knowledge, to board the car by the rear platform f-^^ where a driver failed to see a child aged two years, who approached the car in front of the rear platform and fell under the wheels,-'^® and where a child unexpectedly came upon the track immediately in front of the horse while the driver was engaged in chasing mis- chievous boys who were attempting to steal a ride."'^^ Whether the driver of a car, who sees a child under two years of age play- ing in the street within six feet of the track and continues at a fast trot until he is mthiu seven feet of the child, is guilty of negligence was held to be a question for the jury.-^^® § 311. Pedestrians crossing tracks — their rights and duties While it is the duty of the company to exercise ordinary care and diligence to avoid collisions and other accidents, this rule does not dispense with care and prudence on the part of all persons who use the street in common with the company.-'^* As the cars have the paramount right of way,-^®" those who control them may assume tha.t all persons who are sui juris will recog- nize that right and take proper care to avoid injuries. -^^^ When "" Baker v. Eighth Ave. R. R. Co., ^ Farris v. Cass Ave. & Fair 16 N. Y. Supp. 320, (1891). Ground Ry. Co., 80 Mo. 325, (1883). "^McCarthy v. Cass Ave. & Fair See also Same v. Same, 8 Mo. App. Ground Ry. Co., 92 Mo. 536, 4 S. "W. 588, (1890). Rep. 516, (1887). '^'Liddy v. St. Louis R. R. Co., 40 isin„ii r. r^ i ^-^ T, X, Mo. 506, (1887); Mathes v. Lowell " Gallaher v. Crescent City R. R. ~ _ ' ,„„ ,, .10 m xt tt Co., 37 La. Ann. 288, (1885). St. Ry. Co., 177 Mass. 416, 59 N. B. Rep. 77, (1901); Cincinnati St. Ry. ™ Bulger V. Albany Ry. Co., 42 N. ^o. v. Snell, 54 Ohio St. 197, (1896) ; Y. 459, (1870). Tinsley v. Toronto Ry. Co., 17 On- ""Heam v. St. Charles St. R. R. tario L. Rep. 74, (1908). Co., 34 La. Ann. 160, 162, (1882). '"Ante, sec. 303. See also Boland v. Missouri R. R. '"^ Galveston City R. R. Co. v. Co., 36 Mo. 484, (1865) ; Sheets v. Hewitt, 67 Tex. 473, (1887) ; Wash- Conaolly St. Ry. Co., 54 N. J. L. 518, ington & Georgetown Ry. Co. v. 34 Atl. Rep. 483, (1892). Gladmon, 15 Wall. 401, (1872). 506 THE LAW OF STREET EAILWATS. [§ 311. a person is about to cross tlie middle of a street -where horses, wagons and cars may he expected to pass at short intervals, he is bound to take notice of the rights of others, and bear in mind the dangers to be apprehended.^*^ It is his duty, whether travel- ing on foot, on horseback or by private vehicle, to keep a lookout for cars; and a failure to do so constitutes contributory negli- gence.-^"^ Ordinary prudence teaches that a man walking along or across the track, especially where there are double tracks or parallel lines, should direct his attention to the numerous cars which incessantly run back and forth and pass each other fre- quently.^** Under what circumstances a, pedestrian may safely attempt to walk in front of a car must be determined by facts which vary so much in different cases that courts have not at- tempted to establish specific rules on the subject.-'*® But the gen- eral rule as to watchfulness and care above stated has been illus- trated by a few decisions which may aid in applying it. Thus, it has been held that an attempt to pass in front of a horse-car run- ning at an ordinary rate of speed fifty feet distant is not, as a matter of law, negligence;-'** that, if there be time to cross before the car arrives, the pedestrian is not bound, in order to avoid the charge of negligence, to wait until the car has passed because there might be danger of slipping and falling;-'*'^ not even if the car is approaching at a high rate of speed, if there is in fact ample time to cross ahead of the car, and the foot-pagsenger could have done so but for an unavoidable accident,^*^ but it is "= Buzby V. Philadelphia Traction Owensboro City Ry. Co., 125 S. Co., 126 Pa. St. 559, (1889). "W. Rep. 708, (Ky. 1910); New- i^Jatho v. Green & Coates St. ark Pass. Ry. Co. v. Block, 55 N, Pass. Ry. Co., 4 Phila. 24, (1860) ; J- ^- 605, 27 Atl. Rep. 1067, 22 L. Johnson V. Canal & Claiborne St. ^- -*■• 374, (1893); Mitchell v. Third R. R. Co., 27 La. Ann. 53, (1875); ^^^^ ^^^ ^O-, 62 App. Div. (N. Y.) Lumis V. Phila. Trac. Co., 181 Pa. ^''^' ("«"= Copeland v. Metropoh- St 268 (1897) ^^^ ^*" ^^- *^°'' ''* ^^^' ^^' ^ 418, (1903). >»^Childs V. New Orleans City R. „, ^^^^ ^ Brooklyn City R. R. R. Co., 33 La. Ann. 154, 158, (1881) ; co., 58 Hun 389, 12 N. Y. Supp. 67, Washington & Georgeto-wn Ry. Co. (1890). V. Gladmon, 15 "Wall. 401. (1872). "'Baxter v. Second Ave. R. E, ""Baltimore Trac. Co. v. Helms, Co., 3 Robt. 510, (1865). 84 Md. 515, 36 Atl. Rep. 119, 36 '"» Aaron v. Second Ave. R. R. Co., L. R. A. 215, (1896); Leach v. 2 Daly 127, (1889). § uil.j NEGHOKA'OE l;IGHT.S Oh' TUAVliLlNO I'UBLIO. 507 otherwise where the injured person has made a miscalculation as to his ability to cross in time to avoid a collision;^*® that a person about to cross a track is obliged to use care to keep out of the way of moving cars, and, although his duty in that respect is not so great as that resting upon one about to cross a steam railroad, he is chargeable with negligence if he sees an approach- ing car, or could have seen it by the exercise of reasonable care, and does not take pi-opeo* steps to avoid it, for he is not at liberty to take even doubtful chances of the consequences of crossing the street in face of danger or in reliance upon the successful attempt of the car-driver to slacken the speed of the horses;^''" that when a boy aged nearly ten years, at a point between street crossings, attempts to run across twenty feet in advance of the horses, and falls and is run over although the driver applies the brakes as soon as possible, the company is not responsible for the accident ;-^^^ that where a child ten years of age and of more than ordinary intelligence attempts to cross in advance of a horse-car moving at an ordinary rate, and there are no ob- structions to her view, and no passing vehicle, except a car com- ing in the same direction she is moving, and is injured by the horses before clearing the track, a verdict that she did not neg- ligently contribute to the injury cannot be sustained ;"'^^^ that a person injured by a passing car, while taking part in a procession or parade upon the public streets, is held to the same proof to estabhsh his case as a passerby."* ""Fenton v. Second Ave. R. R. Div., (N. Y.) 521, (1903); Keying v. Co., 56 Hun 99, 9 N. Y. Supp. 162, United Rys. Co., 100 Md. 281, (1905). (1890); Belton v. Baxter, 54 N. Y. ""McClain v. Brooklyn City R. R. 245, (1873) ; Motel v. Sixth. Ave. R. Co., 116 N. Y. 459, 27 N. Y. St. Rep. R. Co., 2 How. Pr. (N. S.) 30, 549, (1889) ; Schwanewede v. North (1885) ; Freldman v. Dry Dock, East Hudson Ry. Co., 67 N. J. L. 449, Broadway & Battery R. R. Co., 11 (1902). N. Y. Supp. 429, (1890); Same v. "^Fenton v. Second Ave. Ry. Co., Same, 110 N. Y. 676, (1888), revers- 126 N. Y. 625, (1891). ing 3 N. Y. St. Rep. 557, (1886); '"Sheets v. Connolly St. Ry. Co., Sweeney v. Scranton Trac. Co., 5 '54 N. J. L. 518, 24 Atl. Rep. 483, Lacka. (Pa.) 86, (1898); Griffith v. (1892); Dorman v. Broadway R. R. Denver Tramway Co., 14 Colo. App. Co., 5 N. Y. Supp. 769, (1889). 504, (1900) ; Walsh v. Hestonville Ry. ™ Brown v. Broadway & Seventh Co., 194 Pa. St. 570 (1900) ; Freeman Ave. R. R. Co., 50 N. Y. Super. 106, V. Brooklyn Heights Ry. Co., 82 App. (1884) ; Montgomery v. Lansing Ry. 508 THE LAW 01" STREET RAILWAYS. [§312. § 312. Pedestrians attempting to cross track without looking. — With reference to tke duty of a pedestrian in the street, to look and listen before attempting to cross street oar tracks, the decisions of the courts of various states are not in harmony. Some of the courts apply the rule which has been generally adopted as to steam-railroad crossings, while others have refused to extend that rule so as to include street railways. It is mani- festly dangerous for a pedestrian about to cross a street railway to omit to use his senses before stepping upon the track to ascer- tain whether a car is approaching, unless he can rely upon some well known custom or regulation in the management of the ears at crossings which renders such a precaution on his part un- necessary. Although street ca.rs and foot-passengers have equal rights of passage at crossings, the fact that a ped^trian can either stop or turn in his course instantly, and by looking and listening can under ordinary circumstances avoid being injured by an approaching car, while the car cannot change its course, and on account of its weight and momentum must, when run- ning at the ordinary rate of speed, continue to travel some distance after the brakes are applied, has resulted in establish- ing the custom, which in many states has the force of law, that those who control the movement of street cars have the right to act on the assumption that pedestrians approaching the track in advance of a car so near as to be in danger if the prog- ress of the car be not checked, will stop and permit the car to pass on without obstruction or delay. Under some circum- stances courts have adjudged, as a matter of law, that the pedes- trian should have looked and listened before crossing, and de- cided, where it clearly appeared that such precautions were omitted, that the plaintiff was properly nonsuited; but in some cases they have held that the question of contributory negli- gence of the injured person was properly submitted to the jury. The doctrine which seems to be supported by authority and reason is, that it is presumiptively negligent on the part of a pedestrian to attempt to cross the track without looking or listening, when if he had looked and listened he could have discovered the approach of the car in ample time to avoid Co., 103 Mich. 46, 29 L. R. A. 287, Ry. Co. v. Wright, 7 App. Cas. (D. (1894); "Washington & Georgetown C.) 295, (1895). § 312.] NEGLIGEITCE EIGHTS OF TEAVBLING PUBLIC. 509 injury. This seems to be the recognized doctrine in Indiana,^^^* Iowa,"'" Massachusetts,"'" Missouri,"* Michigan,"^ 2^ew York,"* "'» Young V. Citizens' Street Ry. Co., 148 Ind. 54, 44 N. E. Rep. 927, (1896). "'bAmes V. Waterloo & Cedar Falls R. T. Co., 120 la. 640, (1903). >"c Willis V. Boston & Northern St. Ry. Co., 202 Mass. 463, 89 N. B. Rep. 31, (1909) ; Donovan v. Lynn Ry. Co. 185 Mass. 533, (1904). "* Meyer v. Lindell Ry. Co., 6 Mo. App. 27, 30, (1878), holding that it was negligent to get ofi a car and start to walk across a parallel track without first looking to ascertain whether the cars are approaching. But an exception to the general rule has since been made in favor of a passenger who has just alighted Irom a car and is required to cross an intervening track of the same company to reach the sidewalk, Burbridge'v. Kansas City Cable R. R. Co., 36 Mo. App. 669, 670, (1889), in which the court held that the plaintiff was a passenger until he had crossed the track, and that "the well-devised and well-under- stood custom and regulation of de- fendant in operating its trains was that no train from the east was al- lowed to approach the junction un- til the east bound train should clear the main street, on which regulation plaintiff had a right to rely and which relieved him of the ordinary duty of looking and listening before crossing said north track to the sidewalk." See also Bunyan v. Citizens' Ry. Co., 127 Mo. 12, (1894). "'Kelly V. Hendrle, 26 Mich. 255, 261, (1872). In this case the collision did not occur at a street crossing. On p. 261, Graves, J., delivering the opinion of the court, said: "Here was a broad public street, with a horse railway in the center, on which cars were passing every few minutes. The way was visible, and known to all using the street. The fact that the vehicles used upon the -way are confined to it and cannot turn to the right or left to avoid pedestrians or teams, was known to everybody. It was in the day time, and there were no obstructions to hinder the deceased from timely observation." See also Doherty v. Detroit Citi- zens' St. Ry. Co., 118 Mich. 209, 76 N. W. Rep. 377, (1898). "" Scott V. Third Ave. R. R. Co., 59 Hun 456, 16 N. Y. Supp. 350, (1891), holding that persons who cross or walk along a street railroad track must use their eyes and exercise vigilance to keep out of the way of the cars; they must look both ways in order to avoid collision with cars approaching from either direc- tion; that, under ordinary circum- stances, if while watching a car ap- proach on one track they walk upon the track in front of another car approaching in the opposite direc- tion, which, by first looking In that direction, they might have seen, they are guilty of contributory neg- ligence which will not be excused by the fact that the car causing the injury was propelled at a dangerous rate of speed; Davenport v. Brook- lyn City R. R. Co., 100 N. Y. 632, 633, 3 N. E. Rep. 305, (1885), in which it was decided that the at- tempt at a crossing to cross one track in order to board a car on a parallel track, without watching for cars on the first track is negligence, and that the defendant on such a showing, is entitled to a non-suit; Ewing V. Atlantic Ave. R. R. Co., 11 N. Y. Supp. 626, (1890), in which the injury occurred at a croasing; 510 THE LAW OF STKEET EAILWAYS. [§312. Ohio,""" Oregon,""" Pennsylvania,^'''^ New Jersey,"^ and Loiiisi- Harnett v. Bleecker St. & Fulton Ferry R. R. Co., 49 N. Y. Super. 185, (1883), holding that a non-su t was proper on the ground of con- tributory negligence, when it ap- peared that the street was clear of obstructions, and that the injured person, if she had looked, wou'd have seen the car in time to escape injury; Fenton v. Second Ave. R. R. Co., 126 N. Y. 625, 26 N. E. Rep. 967, (1891), in which it was held to be contributory negligence for a boy ten years of age to attempt to cross, without looking, at a point between street intersections. But in McClain v. Brooklyn City R. R. Co., 116 N. Y. 459, 465, 27 N. Y. St. Rep. 549, (1889), it was held that it was proper to submit to the jury the question of the contributory negli- gence of a man who was injured at a street crossing', where the tracks were encumbered with cars which followed each other in close succes- sion, it appearing also that he was carrying a small boy in his arms and had stood several minutes wait- ing for a chance to cross, and while he was contused by his surround- ings was struck by a car coming out of a switch. In Mentz v. Second Ave. R. R. Co., 2 Robt. 356, (1884), it was de- cided that it is not under all cir- cumstances negligence for a pedes- trian to cross the tracks without looking for approaching cars ; and In Brown v. Twenty-third St. R. R. Co., 56 N. Y. Super. 356, (1889), it was held that the rule as to the duty of a person about to cross a steam railroad track does not apply with equal strictness to a person about to cross a horse railroad track in a crowded street in a city; and that where a car approaches around a sharp curve at twice the rate of speed limited by ordinance the fail- ure of the pedestrian to see it is not as a matter of law contributory neg- ligence. The supreme court of that state in Pyne v. Broadway & Seventh Ave. R. R. Co., 19 N. Y. Supp. 217, (1892), without attempt- ing to distinguish, and apparently without considering, the decisions in that state already cited, held that a person is not necessarily negli- gent in Jailing to look for approach- ing cars before attempting to cross, "but only where the situation and surrounding circumstances are such that a person of ordinary prudence would have looked." The report does not state the facts fully enough to show whether the situa- tion was such as to call for the ap- plication of the general rule. It appears that the driver in that case was intoxicated, and that his car was running at a very rapid rate. See also McKinley v. Metropolitan St. Ry. Co., 77 App. Div. (N. Y.) 256, (1902). ""aHarpham v. Northern Ohio Trao. Co., 26 Ohio C. C. 253, (1904). '™b Wolf V. City Ry. Co., 45 Oreg. 446, (1903). »" Buzby V. Philadelphia Traction Co., 126 Pa. St. 559, (1889), holding that it is a plain disregard of the dictates of ordinary prudence for a person to attempt to cross without looking for the approach of care. See also Keenan v. Union Trac. Co., 202 Pa. St. 107, (1902). "'Sheets v. Conolly St. Ry. Co., 54 N. J. L. 518, 24 Atl. Rep. 483, (1892), the person Injured being an intelligent child ten years of age, who was crossing diagonally, ■with the approaching car in plain view. See also Connelly v. Trenton Pass. Ry. Co., 56 N. J. L. 700, (1894). § 312. J NEGLIGENCE EIGHTS OF TRAVELING PUBLIC. )11 ana.^^® But a different rule has been, adopted in Ulinois/*" in Minnesota/^^ and in Virginia.^*^ The rule as to pedestrians fol- lowed in a majority of the states receives some support indirectly from the decisions applicable to vehicles, a majority of the courts applying to them the general rule stated above.^^* The facts involved in the two classes of cases differ in several respects which may finally induce the courts to apply different rules to pedestrians '"Schulte v. New Orleans City & Lake R. R. Co., 44 La. Ann. 509, 10 So. Rep. 811, (1892), applying the general rule to infirm persons and holding that the plaintiff, who was aiHicted with deafness and was wearing a bonnet, which obstructed her sight, was guilty of contributory negligence in attempting to cross without looking both ways for ap- proaching cars. See also Hoelzel v. Crescent City Ry. Co., 49 La. Ann. 1302, 38 L. R. A. 708, (1897). '""Chicago City Ry. Co. v. Robin- son, 127 111. 9, (1888), in which it was held that a boy six years of age, who attempted to cross at a street intersection without looking and was run down by a cable car, was not, as a matter of law and without regard to surrounding cir- cumstances, guilty of contributory negligence, and that the question of negligence and of ordinary care Is, in such a case, a question of fact for the jury in the light of the attending circumstances. But the ruling made in that case was not affected by the incapacity of the child, for the court expressly re- pudiated the general rule as to crossings at steam railroads, which prevails in that state. See also Chi- cago "West Division Ry. Co. v. Bol- ton, 37 111. App. 143, (1890); North Chicago St. Ry. Co. v. Nelson, 79 111. App. 229, (1898); Chicago City Ry. f'o. V. Barnes, 114 111. App. 495, (11)04). For other jurisdictions gen- erally supporting the text see: Cit- izens' Ry. Co. V. Ford, 25 Tex. Civ. App. 328, (1901); Dummer v. Mil- waukee Ry. Co., 108 Wis. 589, (1901). "^In Minnesota the question of contributory negligence is upon the whole evidence a question for the jury. "The look and listen rule ap- plicable to steam railroad track crossings should be extended to street railways with great caution; otherwise it will lead to a lessen- ing of care on the part of those operating street cars, to the im- periling of limbs and lives of those who have an equal right with them- selves to the use of public streets. . . . Whether a party is guilty of negligence in attempting to cross a street railway track without first looking and listening for approach- ing cars is ordinarily a question of fact." Riley v. Minneapolis St. Ry. Co., 83 Minn. 96, (1901). See Bremer v. St. Paul City Ry. Co., 107 Minn. 326, 120 N. W. Rep. 382, (1909). 182 "Failure to look for approach- ing street cars by a person about to cross a street railway track at a street crossing, ought not; we think, upon principle, be held to be negligence as a matter of law." Bass V. Norfolk Ry. Co., 100 Va. 1, (1901). But see cases cited in sec. 346, post note 155, as applied to persons passing around cars from which they have alighted. '" See sec. 315, post. 8lS THE LA.W OF STREET RAILWAYS. [§ 318. and those who travel in vehicles. As a reason for establishing a more stringent rule against pedestrians, it may be said that they can more quickly and easily stop or change their course than vehicles, and are not so readily seen by the drivers of approaching cars.^®* On the other hand, some weight may be given to the fact that for convenience and according to custom vehicles more frequently cross at points between street inter- sections. § 313. Standing upon or walking along track. — A pedestrian, who uses reasonable care and prudence to prevent accidents, is not, under all circumstances, required to abandon the track in order to avoid possible injuries which may result from the care- lessness of the company.-*-^^ But a foot-passenger who walks along the track should not only look ahead frequently, but must at his peril look behind from time to time,^^® and this rule is not modified by the fact that the snow has been removed from that part of the street, rendering it more convenient for pedestrians. Where parallel tracks are so near together that cars going ia opposite directions pass within two feet of each other, it is negligence per se for a person after dark to stand between the tracks and there wait for the purpose of taking passage on a car going on one track, at the same time failing to observe whether cars are '"Harpham v. North Ohio Trac. but relied upon the child hearing Co., 26 Ohio C. C. 253, (1904). him and leaving the track. How- '^ Shea V. Potrero & Bay View R. land v. Union St. Ry. Co., 150 Mass. R. Co., 44 Cal. 414, (1872). Thus it 86, (1889). See also Doyle v. West has been held not to be negligence End St. Ry. Co., 161 Mass. 533, per se in a child twelve and one- (1894); Shipley v. Metropolitan St. half years old to walk on the track Ry. Co., 126 S. W. Rep. 768, (Mo. for a short distance at a time when 1910). the car was not due, and that the ^' Warner v. Peoples' St. Ry. Co., alleged negligence of the driver in 141 Pa. St. 615, 21 Atl. Rep. 736, running over him was a proper 48 Leg. Intel. 338, (1891); Smith question to submit to the jury, on v. Crescent City Ry. Co., 47 La. Ann. a showing that he was driving very 833, 17 So. Rep. 302, (1895) ; Pen- fast, and, although he saw the child, man v. McKeesport, D. & W. Ry. and gave warning of his approach Co., 201 Pa. St. 247, (1902); Dooley by shouting several times, he did v. Greenfield Ry. Co., 184 Mass. 204, not slacken the speed of his car, (1903). § 314.J NEGLIGENCE EIGHTS OE TRAVELING PUBLIC. 513 approaehing within dangerous proximity on the other/*'^ But the general rule requiring pedestrians to keep a lookout for the approach of street cars and making their failure to do so con- tributory negligence, has been held not to apply to a flag-man at a steam-railroad crossing who, on account of a broken gate, is required to stand at the exact point of the intersection of the two tracks.^** § 314. Injury to workmen in the street — It is incumbent upon those who are at work in the street upon or near the line of the track, and therefore in a position of great and constant danger, to exercise a degree of watchfulness and prudence com- mensurate with the risks to which they are exposed; and the same degree of care and caution rests upon those who control the cars to avoid inflicting injury.-^^® The failure to give warning of the approach of the car, and to continue to approach a man in a trench, when the noise of the car is deadened by other sounds on the street, may excuse a person working between the tracks for failing to observe the approach of the car."^^" But in a case where the car struck a section of sewer-pipe standing near an excavation, causing it to fall in upon a workman, it was held that the driver was not negligent, if he stopped the car before reach- ing the place, and did not proceed until notified to do so by the •" Miller V. St. Paul City Ry. Co., phla Traction Co., 9 Pa. Co. Ct. 42 Minn. 454, 44 N. W. Rep. 533, Rep. 147, 47 Leg. Intel. 223, (1890). (1890). See also sec. 346, post. See also Daly v. Detroit Ry. Co., ™D'Oro V. Atlantic Ave. R. R. 105 Mich. 193, 63 N. W. Rep. 73, Co., 37 N. Y. St. Rep. 411, (1891). (1895); Eddy v. Cedar Rapids Ry. ™If a workman knowing that ^°- ^^ ^^- ^26, (1896); O'Malley v. cars are constantly passing and re- Stanton Trac. Co., 191 Pa. St. 410, (1899); Davies v. Peoples Ry. Co., passing, attempts to work in a space between the track and a pile of building material, which is too 158 Mo. 1, (1900) ; Laschinger v. St. Paul Ry. Co., 84 Minn. 333, (1901) ; United Rys. Co. v. Fletcher, 95 Md. narrow to permit the cars to pass 533^ 37 Am. & Eng. R. Cas. (N. S.) without colliding with him, and 389^ (iggg) ; Riddle v. Forty-Second takes no precautions for his own g^ Ry co., 173 N. T. 327, (1903) ; safety, but relies upon the driver's Bengivenga v. Brooklyn Heights Ry. watchfulness and the car stopping co.. 48 App. Div. (N. Y.) 515, (1900). in time to enable him to escape in- >8o uttie v. Grand Rapids St. Ry. jury, he is guilty of contributory Co., 78 Mich. 205, 44 N. W. Rep. 137, negligence. Ferguson v. Philadel- (1889). 33 514 THE LAW OF STREET RAILWAYS. [§315. foreman in charge of the work.^"^ In Massachusetts it is held that when one who is at work in the street unlawfully, and while so engaged is injured, he is guilty of contributory negligence which %vill defeat a recovery. -^^^ § 315. Driving across tracks without looking There is as much reason in favor of a rule requiring drivers of private vehicles to look for the approach of cars before driving upon the track as there is to support the rule requiring pedestrians to take that precaution ;^®^ and especially is this true where the risks involved are greatly augmented by the multiplication of tracks, the great number of cars passing to and fro and the speed at which they are permitted and accustomed to run. The decisions rendered, both in the United States and Canada, tend to estabhsh the rule that the failure to look or listen before attempting to cross, where such precautions would prevent collision, is in law such negligence as will defeat a recovery in. an action for damages by the pereon so injured. This is the ruling in many states, ^''' and ^■^ Schmidt V. Steinway & Hun- ters' Point Ry. Co., 132 N. Y. 566, 30 N. B. Rep. 389, (1892), reversing 10 N. Y. Supp. 672, (1890). !'« Banks v. Highland St. Ry. Co., 136 Mass. 485, (1884). The person who was Injured was In the employ of a telegraph company which had not obtained a statutory license for locating its wires, and while climb- ing a telegraph pole and carrying a wire attached to his person was injured by a street car which ran against the wire and pulled him from the pole. See also Slas v. Lowell Ry. Co., 179 Mass. 343, 60 N. E. Rep. 974, (1901), and Kelley v. United Trac. Co., 88 App. Div. (N. Y.) 234, (1903), where plaintiff was injured while working on the sidewalk, by car which had run off its tracks. But see sec. 366, post. '"Ante, sec. 312. ^"In Carson v. Federal St. & Pleasant Valley Pass. Ry. Co., 147 Pa. St. 219, 23 Atl. Rep. 369, (1892), the trial judge had instructed the jury that there was no law or rule that required the driver to stop, look and listen, but that it was for them to decide what it was his duty to do. Green, J., delivering the opin- ion of the court, said: "They were thus left without any rule of law to apply, at liberty to make one to suit themselves for the purposes of this case, which the next jury might change to suit themselves, or disregard altogether. We can- not agree to this. The street rail- way has become a business neces- sity in all great cities. Greater and better facilities and a higher rate of speed are being constantly de- manded. The movement of cars by cable or electricity along crowded streets is attended with danger, and renders a higher measure of care necessary, both on the part of the street railways and those using the streets in the ordinary man- § 315. J NEGLIGENCE EIGHTS OF TRAVELING PUBLIC. 515 ner. It is the duty of the railways to be watchful and attentive, and to use all reasonable precautions to give notice of their approach to crossings and places of danger. Its failure to exercise the care which the rate of speed and the condition of the street demand Is negligence. On the other hand, new appliances, rendered necessary by the advance in business and population in a given city, impose new duties on the public. The street railway company has a right to the use of its track, subject to the right of crossing by the public at street intersections; and one approaching such a place of crossing must take notice of it, and exercise a reasonable measure of care to avoid contact with a mov- ing car. It may not be necessary to stop on approaching such a cross- ing, for the rate of speed of the most rapid of these surface cars is ordinarily from six to nine miles per hour; but it is necessary to look before driving upon the track. If by looking the plaintiff could have seen, and so avoided, an approach- ing train, and this appears from his own evidence, he may be properly nonsuited: Marland v. Pitts. & L. E. R. Co., 123 Pa. St. 487, 16 Atl. Rep. 624, (1889). It is in vain for a man to say he looked and listened who walks directly in front of a moving locomotive. An injury so received is due to his own gross carelessness: Pennsylvania R. R. Co. V. Bell, 122 Pa. St. 58, 15 Atl. Rep. 561, (1888); Moore v. Phila., Wilm. & Bait. R. R. Co., 108 Pa. St. 349, (1885)." See also Ehrlsman v. East Harrisburg City Pass. Ry. Co., 150 Pa. St. 180, 24 Atl. Rep. 596, (1892) ; Wheelahan v. Philada. Trac. Co., 150 Pa. St. 187, 24 Atl. Rep. 688, (1892); Thomas v. Citizens' Pass. Ry. Co., 132 Pa. St. 504, (1890); Burke, v. Union Trac. Co., 198 Pa. St. 497, (1901); Peeper v. Union Trac. Co., 202 Pa. St. 100, (1902); Haas V. Chester St. Ry. Co., 202 Pa. St. 145, (1902); Smathers v. Pitts- burg St. Ry. Co., 226 Pa. St. 212, 75 Atl. Rep. 190, (1910). California — Everett v. Los An- geles Consol. Blec. Ry. Co., 115 Cal. 105, 46 Pac. Rep. 889, (1896). Colorado — Davidson v. Denver Tramway Co., 4 Colo. App. 283, (1894). Indiana — Citizens St. Ry. Co. v. Helvie, 22 Ind. 515, (1899); Union Trac. Co. v. Vandercook, 32 Ind. App. 621, (1904). Kansas — Burns v. Metropolitan St. Ry. Co., 66 Kan. 188, 71 Pac. Rep. 244, (1903). Louisiana — Mercier v. New Or- leans Ry. Co., 23 La. Ann. 264, (1871) ; Murray v. Pontchartrain Ry. Co., 31 La. Ann. 490, (1879); Snider v. New Orleans Ry. Co., 48 La. Ann. 1, (1896); Ponsano v. St. Charles Ry. Co., 52 La. Ann. 245, (1899). Michigan — Fritz v. Detroit Citi- zens St. Ry. Co., 105 Mich, 50, (1895) ; Merritt v. Foote, 128 Mich. 367, (1901). Missouri — Smith v. Citizens Ry. Co., 52 Mo. App. 36, (1892) ; Conrad V. St. Louis Ry. Co., 89 Mo. App. 534, (1901). New York — Ward v. Rochester Ry. Co., 17 N. Y. Supp. 427, (1892); Boentgen v. New York & Harlem Ry. Co., 36 App. Div. (N. Y.) 460, (1899) ; Schmidt v. Interurban St. Ry. Co., 82 App. Div. (N. Y.) 453, (1903). Ohio — Weiser v. Broadway & W. St. Ry. Co., 10 Ohio C. C. 14, (1894) ; Toledo Consol. St. Ry. Co. v. Lut terbeck, 11 Ohio C. C. 279, (1896) ; Schausten v. Toledo Consol. St Ry. Co., 18 Ohio C. C. 691, (1897), afC'd 60 Ohio St. 619, (1899) ; Cleveland Elec. Ry. Co. V. Wadsworth, 25 Ohio C. C, 516 THE LAW OF STREET EAILWATS. [§316. in Canada;^*^ while in other states it is held that in such a case the question of contributory negligence should be submitted to the jury.^»* § 316. Driving private vehicles along the track — Notwith- standing the rule of law which accords to street cars the superior right of way/^'^ it is not necessarily an act of negligence to drive a private vehicle upon and along the tracks of a street railway, either behind, or in advance of, a street car, if the driver exer- cises due care to avoid a collision.^** Nor does the law hold it to 376, (1903) ; Harpham v. Northwest- ern Trac. Co., 4 Ohio C. C. (N. S.) 257, (1904). Wisconsin — Lockwood v. Belle City Ry. Co., 92 Wis. 97, (1896); McClellan v. Chippewa Valley Ry. Co., 110 Wis. 326, (1901); Goldman V. Milwaukee Ry. Co., 123 Wis. 168, (1904). "=Follet V. Toronto Ry. Co., 15 Ont. App. 346, (1888), reversing the lower court. See also 35 Central Law Jour. 145, (1892) ; 4 Am. & Eng. Encycl. of Law, p. 951; Pierce on Railroads, p. 447; a collection of cases in a note to Market St. Ry. Co. v. McKeever, 19 Am. & Eng. Cas. 127; Beach on Contrib. Neg. (3d Ed.), sees. 289, 290. "'California — Campbell v. Los. Angeles Trac. Co., 137 Cal. 565, (1902). Connecticut^ — Lawler v. Hartford St. Ry. Co., 72 Conn. 74, (1899). Illinois — Chicago St. Ry. Co. v. Benson, 108 111. App. 193, (1903); Springfield Ry. Co. v. Clark, 51 111. App. 626, (1893). Maine — Fairbanks v. Bangor Ry. Co., 95 Me. 78, (1901). Massachusetts — ^Harley v. West End St. Ry. Co., 180 Mass. 370, (1902), must exercise due care. See also Ferguson v. Old Colony St. Ry. Co., 204 Mass. 340, 90 N. E. Rep. 535, (1910) ; Dunn v. Old Colony Ry. Co., 186 Mass. 316, (1904); Saltman V. Boston Ry. Co., 187 Mass. 243, (1905). Minnesota — Shea v. St. Paul City Ry. Co., 50 Minn. 395, 52 N. W. Rep. 902, (1892) ; Wosika v. St. Paul City Ry. Co., 80 Minn. 364, (1900). New Jersey — Dennis v. North Jer- sey St. Ry. Co., 64 N. J. L. 439, (1900); Solatinow v. Jersey City Ry. Co., 70 N. J. L. 154, (1903); Woodland v. North Jersey St. Ry., 66 N. J. L. 455, (1901). Tennessee — ^Wilson v. Citizens St. Ry. Co., 105 Tenn. 74, (1900), which holds that the duty to look and listen is not universal and ab- solute. Washington — Roberts v. Spokane Ry. Co., 23 Wash. 325, 54 L. R. A. 184, (1900); Helber v. Spokane St. Ry., 22 Wash. 319, (1900). i" Ante, sec. 303. ™ Swain v. Fourteenth St. R. R. Co., 93 Cal. 179, 28 Pac. Rep. 829, (1892); Lynam v. Union Ry. Co., 114 Mass. 83, (1873) ; Cook v. Met- ropolitan R. R. Co., 98 Mass. 361, (1867); Pleckenstein v. Dry Dock, Bast Broadway & Battery R. R. Co., 105 N. Y. 655, (1887) ; North Hud- son County R. R. Co. v. Isley, 49 N. J. L. 468, (1887) ; Adolph v. Central Park, North & East River R. R. Co., 76 N. Y. 530, (1879); Rascher v. East Detroit & Grosse Pointe Ry. § 316.] NEGLIGEN-CE EIGHTS OF TRAVELING PUBLIC. 517 be negKgent to travel by the side of a track on which a car is going in the same direction."" If the private vehicle follows the car, ordinarily little or no risk is incurred; but if the car is climb- ing a steep grade on a slippery track and suddenly and unex- pectedly runs back upon a team closely following it, the question of the contributory negligence of the driver in following the car so closely under such circumstances is properly submitted to the jury.^"** It is the duty of the driver of a private vehicle while on the track, not only to turn off when called upon by a servant of the railway company, but to listen for whatever signal there may be of an approaching car; and he should also look behind him from time to time so that he may, if a car be near, turn off and allow it to pass without hindrance or slackening of ordinary speed; and if he fails to observe this precaution he does so at his own risk.^"^ When he shall begin to turn his vehicle from the track Co., 90 Mich. 413, 51 N. W. Rep. 463, (1892); Mertz v. Detroit Elec. Ry. Co., 125 Micli. 11, (1900); Calumet Elec. St. Ry. Co. v. Cliristeiison, 70 111. App. 85, (1897); North Chi- cago Ry. Co. V. Peuser, 190 111. 67, (1901); Robinson v. Louisville Ry. Co., 112 Fed. Rep. 484, (1901) ; Blum V. Metropolitan St. Ry. Co., 79 App. Div. (N. Y.) 611, (1903) ; Frank v. Metropolitan St. Ry. Co., 91 App. DiT. (N. Y.) 485, (1904). ""Brooks V. Lincoln St. Ry. Co., 22 Neb. 816, (1888) ; Glazerbrook v. West End St. Ry. Co., 160 Mass. 239, (1893); Mahoney v. San Francisco Ry. Co., 110 Cal. 471, (1895) ; Geleta V. Buffalo Elec. Ry. Co., 88 App. Div. (N. T.) 372, (1903) ; Chicago Union Trac. Co. v. Dyboig, 107 111. App. 644, (1903) ; Wilkins v. Omaha Ry. Co., 96 la. 668, (1896); Tashjian V. Worcester Ry. Co., 177 Mass. 75, (1900); Rouse v. Detroit Elec. Ry. Co., 128 Mich. 149, 22 Am. & Eng. R. Cas. (N. S.) 650, (1901) ; Tunlson V. Weadock, 130 Mich. 141, 89 N. W. Rep. 703, 27 Am. & Eng. R. Cas. (N. S.) 203, (1902); Metropolitan St. Ry. Co. V. Rouch, 66 Kan. 195, 71 Pac. Rep. 257, 29 Am. & Bug. R. Cas. (N. S.) 457, (1903); Dan- ger v. London St. Ry. Co., 30 On- tario Rep. 493, (1899); O'Hearn v. Town of Port Arthur, 4 Ontario L. Rep. 209, (1902). ™ Cook V. Metropolitan R. R. Co., supra; Mueller v. Milwaukee St. Ry. Co., 86 Wis. 340, 21 L. R. A. 721, (1893) ; Central Ry. Co. v. Knowles, 93 111. App. 581, (1900), 191 111. 241, (1901). ^'Adolph V. Central Park, North & East River R. R. Co., supra; Wood V. Detroit City St. R. R. Co., 52 Mich. 402, 50 Am. Rep. 259, (1884). In an earlier New York case, de- cided by the superior court, it was held that, while it was the duty of a driver to use reasonable diligence, prudence and speed, when traveling in advance of a car, to get off the track before it reached him, he was not required to look behind him. Adolph V. Central Park, North & Bast River R. R. Co., 43 N. Y. Super. 199, (1878); Same v. Same, 33 N. Y. Super. 188, (1871), criticis- 518 THE LAW OF STREET EAILWAYS. [§ 317. must depend -upon all the circmnstances; lie must exercise rea- sonable judgment and care, such as the law requires of a prudent man, diligent to give free passage to the approaching car.^"^ But if he attempts to leave the track in a prudent manner and with reasonable diligence, and, because his wheels slide in the groove of the rail, or for any other reason, he fails to clear the car which is being managed in a negligent manner, the law affords him a remedy against the company by action for damages. ^"^ As stated elsewhere,^"* the mere fact that the driver turns his team to the left instead of to the right is not negligence. § 317. Degree of care required of travelers on streets occupied by street railway — It is the duty of other travelers and of those Ing Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw. 314, (1858), aad ap- proving Baxter v. Second Ave. R. R. Co., 3 Robt. 510, (1865); Barker v. Savage, 1 Sweeney 288, (1869); Benton v. Baxter, 33 N. Y. Super. 182, (1871). But see Siek v. Toledo Consol. St. Ry. Co., 16 Ohio C. C. 393, (1895); Cincinnati St. Ry. Co. v. Jenkins, 20 Ohio C. C. 256, (1900); Cincinnati Trac. Co. v. Kroeger, 10 Ohio C. C. (N. S.) 64, (1907), 10 Ohio C. C. (N. S.) 123, (1908). Cases holding that if driver fails to look behind him from time to time it is not such negligence as to preclude him from recovering in the event of a rear-end collision: Peterson Ry. Co. v. Lamring, 18 N. J. L. Jour. 245, (1895); Conrad Grocer Co. V. St. Louis & Meramec Ry. Co., 89 Mo. App. 391, (1901); Vincent V. Norton Ry. Co., 180 Mass. 104, 61 N. E. Rep. 822, 23 Am. & Eng R. Cas. (N. S.) 543, (1901); Schilling V. Metropolitan St. Ry. Co., 47 App. Div. (N. Y.) 500, (1900). See also Reynolds v. Larchmont Ry. Co., 83 App. Div. (N. Y.) 189, (1903) ; Fu- ilse V. Los Angeles Ry. Co., 107 Pac. Rep. 317, (Cal. 1910) ; Knoll v. New Jersey St. Ry. Co., 75 Atl. Rep, 450, (N. J. 1910). ^°^ North Hudson County R. R. Co. V. Isley, supra; Kaechele v. United Trac. Co., 15 Pa. Super Ct. 73, (1900); Citizens' St. Ry. Co. v. Jackson, 107 Tenn. 444, (1901); Hutchinson v. St. Louis Ry. Co., 88 Mo. App. 376, (1901) ; Abrahams v. Los Angeles Trac. Co., 124 Cal. 411, (1899); Consolidated Trac. Co. v, Haight, 59 N. J. L. 577, (1896). ™' Lynam v. Union R. R. Co., su- pra; Fleckenstein v. Dry Dock, East Broadway & Battery R. R. Co., su- pra; Will V. West Side Ry. Co., 84 Wis. 42, (1893), wheels slipping; Bradwell v. Pittsburg Ry. Co., 153 Pa. St., 105, (1893), defect in rail; Cross V. California St. Cable Co., 102 Cal. 313, (1894), zigzagging down a steep grade between track and curb is not negligence per se; Bush v. St. Joseph Ry. Co., 113 Mich. 513, (1897), wheels slipping; Hartung v. North Chicago St. Ry. Co., 102 111. App. 470, (1902). '""Ante, sec. 302. See also Len- ker V. Citizens' Trac. Co., 179 Pa. St. 486, (1897). § 317.] NEG-LIGENCE RIGHTS OF TRAVELING PUBLIC. 519 in charge of street cars to be on the lookout for each other, the degree of caution required of the former being increased by the fact that, except at street crossings, the latter have the superior right of way.^"^ Although the company is bound to exercise care and diligence to avoid collisions and accidents, this does not relieve all other persons who are using the streets from the duty of using proper care and watchfulness to -avoid injury.^"* The degree of care and prudence required of one traveling upon the street where a street railway has been rightfully laid down is greater than that demanded of him by the law upon other streets, in proportion as the risks are increased by the operation of the railway ;^''^ and, as the company is entitled to the unrestricted use of its rails for the passage of its cars within the limit of speed which the law allows, the driver of any other vehicle, being unnecessarily upon the track, is bound to exercise gTcater care than when else- where in the street, to see that the approaching car is not im- peded.^"® Ordinarily error of judgment or inattention to one's surroundings, if it directly contributes to an injury, will bar a recovery. Thus, where a woman driving a phaeton attempted to cross a track in front of a horse-ear approaching at a trot upon a descending grade, which she knew, by the sound of the gong, to be approaching, although she could not see it because her curtains were down, but which was only from thirty to fifty feet distant when she started to cross, she was held guilty of such contributory neghgence as to prevent a recovery for injuries sustained from the ensuing collision.^"* One who drives upon the track in full view of an approaching car and makes no effort to avoid a col- lision by increasing the speed of his own vehicle, although he calls to the driver to stop the car, is guilty of contributory negli- gence. Under such circumstances, being equally in fault, he can- not recover for the negligence of the car-driver who at the time i^ ■""Ante, sec. 303. ™'Wooley v. Grand St. & New- "Liddy v. St. Louis R. R. Co., 40 town R. R. Co., 83 N. Y. 121, (1880). Mo. 506, (1867). But see Cincinnati .c^ilbrand v. Eighth Ave. R. R. Trac. Co. v. Hulvershorn, 12 Ohio _ „„ <>■,, ,-,oro^ C. C. (N. S.) 390, (1909). ^°-' ^ ^°^^- ^^*' ^^'^^^^ See also cases cited under sees. ^°° Thomas v. Citizens' Pass. Ry. 311, 312, 313, 314, 315, 316 and 321. Co., 132 Pa. St. 504, (1890), 520 THE LAW OF STREET EAILWATS. [§ 318. negligently looking in another direction.^^'* The fact that one who sees ai dangerous obstacle in the street, such as a bank of snow thrown up from railway tracks, attempts to pass over it, is not conclusive evidence of negligence, and if he is injured in the attempt he may nevertheless recover if he exercises due care.^" If a person falls while crossing the track, although negligent in attempting to cross at that time and place, those in charge of the car must nevertheless stop if possible in time to prevent injury; and if, knowing his perilous position, they fail to use the means at their command to stop the car in time to prevent injury, the company will be liable notwithstanding the prior negligence of the injured person.^''^ § 318. Degree of care as affected by nature of employment. — A fireman suddenly called out of bed in response to a call, and required by the nature of his duties to finish dressing while on the wagon or truck traveling at a high rate of speed, is not held to the same degree of care as would be required of one who had no such duty to perform. And the mere fact that while putting on his belt he sits in such a position on the truck as to be injured in a collision while passing a street car, is not per se such an act of negligence as to prevent a recovery ^^^ So it has been held that a fireman is not guilty of negligence in traveling over a street-car track in the regular pursuit of his duties, although he knew it to be in a dangerous condition. ^^* =^»Mercler v. New Orleans & Car- Union Ry. Co., 61 Mo. 588, (1876). ronton R. R. Co., 23 La. Ann. 264, See also the following cases where (1871). collisions occurred between street '^ Mahoney v. Metropolitan R. R. cars and fire wagons, hose-carts, Co., 104 Mass. 73, (1870). trucks, etc., driven to place of fire: ="Fenton v. Second Ave. R. R. Consolidated Trac. Co. v. Cheno- Cc, 56 Hun 99, (1890), distinguish- with, 58 N. J. L. 416, 5 Am. & Bng. ing Belton v. Baxter, 54 N. Y. 245, R. Cas. (N. S.) 599, (1896) ; Garrity (1873). V. Detroit Citizens' Ry. Co., 112 ''"McGee v. West End St. Ry. Co., Mich. 369, 37 L. R. A., 529, (1897); 151 Mass. 240, (1890). See also Birmingham Ry. Co. v. Baker, 126 Birmingham Ry. Co. v. Baker, 132 Ala. 135, (1899) ; Warren v. Menden- Ala. 506, 31 So. Rep. 618, 25 Am. & hall, 77 Minn. 145, (1899) ; Guiney v. Eng. R. Cas. (N. S.) 17, (1902). South Elec. Ry. Co., 167 Mo. 595, '^^Elyton Land Co. V. Mlngea, 89 (1901); Birmingham Ry. Co. v. Ala. 521, (1889). Contra, Smith v. Baker, 132 Ala. 507, 25 Am. & Bng. § 319.] NEGLIGENCE ^EIGHTS OF TEAVELING PtTBLIC. 521 § 319. Eate of speed — How fast cars may be nua with safety to the traveling public depends upon so many facts and condi- tions, which may be local, temporary or peculiar, that courts have not attempted to establish any definite rules upon the subject, and the public authorities have usually confined themselves to estab- Hshing maximum rates, which in no wise affect the duty of the company to operate its cars more slowly when occasion demands. A due regard for the rights of others may require that the speed be materially reduced at curves, crossings, in business districts, wherever the streets are crowded, and whenever the speed should be diminished to prevent collisions. ^^^ With reference to horse railroads it has been held that it is not the duty of the company to cause its cars to be moved at a walking-pace, but that it owes to its patrons a duty to make regular trips and on time whenever that can be done;^" that a reasonable and lawful speed for a street car propelled by animal power, in the absence of a statute or ordinajnce upon the subject, is the average rate of speed for carriages used to convey passengers by horse-power ;^^^ and that whether or not it is negligence to drive a horse-car around a sharp curve at the rate of five or six miles per hour is a question which should be submitted to the jury.^^* By ordinance the limit has been fixed in various cities at rates varying from four to fifteen miles per hour, and it is not unusual to establish different rates E. Cas. (N. S.) 17, 31 So. Rep. 618, cago Ry. Co., 238 111. 392, 87 N. E. (1902); Hanlon v. Milwaukee Ry. Rep. 377, (1909). Co., 118 Wis. 210, (1903) ; Decker v. '^' Citizens' St. Ry. Co. v. Carey, Brooklyn Heights Ry. Co., 64 App. 56 Ind. 396, 405, (1887). Div. (N. Y.) 430, (1901); New York ^^'Adolph v. Central Park, North V. Metropolitan St. Ry. Co., 90 App. & East River R. R. Co., 76 N. Y. Wt. (N. Y.) 66, (1904). See also 530, (1879). Buys V. Third Ave. Ry. Co., 45 App. "^ Brown v. Twenty-Third St. R. Div. (N. Y.) 11, (1899), where col- R. Co., 4 N. Y. Supp. 192, (1889). lision occurred between an ambu- Where plaintiff was thrown from lance and street car. summer car while it was rounding '^' Dubose V. New Orleans Ry. Co., a curve at the rate of about eighteen 123 La. Ann. 1029, 49 So. Rep. 696, miles per hour, the question of neg- (1909) ; El Paso Elec. Ry. Co. v. ligence was left to the jury. Macy Tomllnson, 115 S. W. Rep. 871, v. New Bedford Ry. Co., 182 Mass. (Tex. 1909); Newport News Ry. Co. 291, 65 N. E. Rep. 397, 28 Am. & V. Nicolopoolos, 109 Va. 165, 63 S. B. Bng. R. Cas. (N. S.) 291, (1902). Rep. 443, (1909) ; Savage v. Chi- See also Wilder v. Metropolitan St. 522 THE LAW OF STKEET EAILWAYS. [§ 320. for various parts of the same line or route. It may be stated as a general rule, that the cars may be nm at any rate of speed convenient to the company and not dangerous to its passengers and the public,^^® aud that a driver is not bound to regulate and limit his speed to such a rate as may seem necessary to avoid harm to persons crossing the track in an unreasonable or improper manner.*^ § 320. Liability as affected by ordinances limiting^ speed Reasonable restrictions may be imposed by statute or ordinance upon the rate of speed at which street cars may be propelled,^^^ and the fact that a car is run at a greater rate of speed is prima facie evidence of negligence on the part of those who are man- aging it.^^^ Where the averment is made in 'the declaration or petition that the car was propelled at an unlawful amd dangerous rate of speed, and it appears from the evidence that the car was running at an unlawful rate, a city ordinance regulating and lim- iting the speed of street cars may be introduced in support of the charge,^^^ and the defendant may be found guilty of negligence in exceeding the lawful rate of speed if otherwise the accident Ry. Co., 10 App. Div. (N. Y.) 364, ming v. Brooklyn City E. R. Co., 38 (1896). Hun 362, (1885); Ramsay v. Mon- ^ Citizens' St. Ry. Co. v. Steen, treal St. Ry. Co., 32 L. C. J. 52, 42 Ark. 321, (1883); Kline v. Elec- (1887); Quincy Horse Ry. & Car- trie Trac. Co., 181 Pa. St. 276. 37 "er Co. v. Gnuse, 38 111. App. 212, Atl. Rep. 522, (1897); Cincinnati (1890): Wright v. Maiden & Mel- Street Ry. Co. V. Lewis, 23 Ohio C. rose R. R. Co., 4 Allen 283, (1863); C 127 (1901) Jetter v. New York & Harlem R. R. '^J T-.,„T> n eiv/r Co., 2 Keyes 154, 158, (1865). It has ™ Meyer v. Lindell Ry. Co., 6 Mo. , , ,, . ^ i-~, „„ r,o,. oo », „. ,.o„„v ^ ,/■ ^L . j.^ teen held to be negligence per se App. 27, 31, (1878), holding that the . . . . „ „„„„,, „„ ^' L\ , . -u -^ ^ ; to run a street car at a speed pro- mere fact that a mule in a boh-tail ^^.^^^ ^ ordinance. Helntz car is permitted to gallop, is no evi- ^ g^ ^^^^.^ ^^^^^ ^^^ ^^5 ^^ ^pp_ dence of a want of ordinary care on gg^_ ^^^^^^ . ^.^^^^ ^ p^g^^ g„„„i the part of the driver. See also ^^ ^^ _ ^^ ^^^^ 522^ ^0^ p^^ Rep. west Philadelphia Pass. Ry. Co v. ^^^^^ ^ (,^,^^^1^ Blec. Mulhair, 6 W. N. C. (Pa.) 509, gt. Ry. ca, 66 S. B. Rep. 993, (S. C. *-'^^'^^'>- 1910). See also sec. 359, post. ™ Ante, sees. 229, 319. 223 bright v. Maiden & Melrose R. "" Brown v. Twenty-Third St. R. R. Co., supra; Baltimore City Pass. R. Co., 56 N. Y. Super. 356, (1889) ; Ry. Co. v. McDonnell, supra; Cum- Baltimore City Pass. Ry. Co. v. Mc- ming v. Brooklyn City R. R- Co., Donnell, 43 Md. 534, (1875); Cum- supra; Ramsay v. Montreal City § 321. j NEGLIGENCE BIGHTS OF TEAVELING PUBLIC. 520 ■would have been avoided.^^* But a limitation by brdinaaee of the rate of speed is not authority to run up to the limit regard- less of existing circumstances and conditions. ^^° § 321. Collisions with vehicles near track — error of judgment. — ^Where one permits a private vehicle to stand so near a street- car track thait it is struck by a passing car, both he and the driver of the car supposing that the car could pass without a collision, if an accident ensue, the owner of the wagon cannot recover, for, the error of judgment beiag mutual, both are guilty of contribu- tory negligence.^^® But if a wagon is left standing so neai- the track that it is perfectly apparent that the car cannot possibly clear it, and the car-driver wantonly runs against it, his employer will be liable for the damages caused, notwithstanding the prior negligence of the plaintiff.""^ The mere act of pulling down the side curtains of an open cable car to keep out the rain is not negligence on the part of the conductor of the car, even though it prevents a view of the sides of the street.^^^ Ry. Co., supra; Gress v. Braddock Ry. Co., 14 Pa. Super. Ct. 87, (1900). ^' Baltimore City Pass. Ry. Co. v. McDonnell, supra; Savannah St. Ry. Co. v. Jackson, 95 Ga. 366, 22 S. B. Rep. 542, (1895); Hurdle v. Wash- ington Ry. Co., 8 App. Cas. (D. C.) 120, (1896) ; Johnson v. Oakland Ry. Co., 127 Cal. 608, (1900) ; Holdridge V. Mendenhall, 108 Wis. 1, (1900). "^Quincy Horse Ry. & Carrier Co. V. Gnuse, supra; PuUerton v. Metropolitan St. Ry. Co., 37 App. Div. (N. Y.) 386, (1899); White v. Albany Ry. Co., 35 App. Div. (N. Y.) 23, (1898); Ayars v. Camden Ry. Co., 63 N. J. L. 416, (1899) ; Colum- bus St. Ry. Co. V. Connor, 27 Ohio C. C. 229, (1905). ^Spaulding v. Jarvis, 32 Hun 621, (1884); Patton v. Philadelphia Trac. Co., 132 Pa. St. 76, 20 Atl. Hep. 682, (1890). But every error of judgment is not necessarily neg- ligence. Belton v. Baxter, 58 N. Y. 411, (1874); Gumb v. Twenty-Third St. Ry. Co., 58 N. Y. Super. 1, (1890). See also Baxter v. Second Ave. R. R. Co., 3 Robt. 510, (1865) ; Redford v. Spokane Ry. Co., 15 Wash. 419, (1896). "^ Koch v. St. Paul City Ry. Co., 45 Minn. 407, 48 N. W. Rep. 191, (1891) ;Caulahan v. Metropolitan St. Ry. Co., 28 App. Div. (N. Y.) 394, (1898); Gilmore v. Federal St. Ry. Co., 153 Pa. St. 31, (1893), where the negligence of the company in running the car at a high rate of speed was held not to excuse plaintiff's prior negligence In leav- ing his horse and wagon unguarded on the track. "^^If, after thus closing the car, injury is inflicted by the side of the car colliding with a private vehicle, the defendant's liability depends not upon whether or not the cur- tains were closed, but upon whether the actions of the horse hitched to the vehicle before the grip-man passed it were such as should rea- 524 THE LAW OF STREET RAILWAYS. [§§ 322, 323. § 322. Special cases of injury to travelers — runaway horses Where a traick is icy and slippery it is negligence for a driver of a horse-car to strike with his whip a horse which is being led near the track and thereby cause it to fall or jnmp upon the track and collide with the car.^^® "Whether it is negligence for a driver to permit the single-tree to drop on the horses' heels, thus fright- ening them and causing them to run away and injure a traveler on the street, is a question for the jury.^^** The mere fact that a traveler on the street is injured by a runaway team temporarily detached from a street car creates no presumption of negligence lagainst the railway company; and no recovery can be had if such an accident occurs, where it appears that the method pursued in the management of the team was the same as that which had been practiced by that and other companies for years without accident and was a safe method, as shown by several witnesses of practical experience.^^-^ It has been held that, in the absence of proof that a horse is of a restive character or vicious propensities, it is not negligence per se to leave him in the street untied, and if injured by collision with a street car through the negligence of the company, the owner of the horse may recover.^^^ § 323. Collision — presumption of negligence — In an action against the company brought by a person not a passenger, the law does not raise a presumption of negligence against the defend- ant. In such eases, on the issue of the defendant's negligence, the burden of proof rests upon the plaintiff, and he cannot recover without establishing the fact alleged by a fair preponderance of the evidence ;^^^ and this is true although the person injured has sonably excite apprehension of a '^ Weldon v. New York & Harlem collision in his mind. Potts v. Chi- R. R. Co., 18 N. Y. Super. 576, cago City Ry. Co., 33 Fed. Rep. 610, (1859) ; Sutter v. Omnibus Cable (1887). Co., 107 Cal. 369, (1895). =™Berke v. Twenty-Third St. Ry. ='= Albert v. Bleecker St. R. R. Co., 4 N. Y. Supp. 905, (1889). Co., 2 Daly 389, (1888). See Elliott »» Lynch v. Brooklyn City R. R. on Roads and Streets, (2d Ed.), sec. Co., 5 N. Y. Supp. 311, (1889), afi'd 842. 123 N. Y. 657, (1890). See also Wolf- =^ North Chicago City Ry. Co. v. skill V. Los Angeles Ry. Co., 129 Cal. Louis, 138 111. 9, 27 N. B. Eep. 451, 114, (1900); Chicago C'ty Ry. Co. v. (1891); North Side St. Ry. Co. v. Smith, 54 111. App. 415, (1895). Want, 15 S. W. Rep. 40, (1890); § 323.] NEGLIGENCE ^EIGHTS OF TBAVELING PUBLIC. 525 not reached the age of discretion, and cannot, therefore, be guilty of contributory negligence. ^^* As there can be no collision be- tween a street car and a private vehicle moving side by side in the same direction, if each adheres to the track which the law assigns to it, when a collision occurs under such circumstances the presumption of negligence is against the driver of the private vehicle, and not against the driver or conductor of the street ^^^ If it be shown that the driver of a car was asleep or in- car. toxicated at the time of an accident, a presumption of negligence would properly arise. But the fact from which the inference is to be drawn must first be established.^^* O'Neil V. Dry Dock, Bast Broadway & Battery R. R. C!o., 129 N. Y. 125, 29 N. E. Rep. 84, (1891) ; Button v. Hudson River R. R. Co., 18 N. Y. 248, (1858); Philadelphia City Pass. Ry. Co. V. Henrice, 92 Pa. St. 431, (1880) ; Potts v. Chicago City Ry. Co., 33 Fed. Rep. 610, (1887); Thomas v. Citizens' Pass. Ry. Co., 132 Pa. St. 504, (1890) ; Roller v. Sutter St. R. R. Co., 66 Cal. 230, (1884) ; Schoen V. Dry Dock, East Broadway & Bat- tery R. R. Co., 58 N. Y. Super. 149, (1890); Girard College Pass. Ry. Co. V. Middleton, 3 W. N. C. (Pa.) 486, (1887); Gumb v. Twenty-Third St. Ry. Co., 58 N. Y. Super. 1, (1890). "" Klein v. Crescent City R. R. Co., 23 La. Ann. 729, (1871) ; Cords V. Third Ave. R. R. Co., 4 N. Y. Supp. 439, (1889). ^Suydam v. Grand St. & New- town R. R. Co., 41 Barb. 375, (1864). See also Gibbons v. Wilkes-Barre St. Ry. Co., 155 Pa. St. 279, 56 Am. & Eng. R. Cas. 600, (1893); Perras v. United Trac. Co., 88 App. Div. (N. Y.) 260, (1903). "' Philadelphia City Pass. Ry. Co. V. Henrice, supra, holding that it is not proper to ask a witness how many hours the driver and conduc- tor were employed each day, for the purpose of showing that the driver was physically unable to discharge his duty at the time of the accident. See also Goshorn v. Smith, 92 Pa. St. 435, (1880). CHAPTER XII. THE RELATIVE RIGHTS, DUTIES AND LIABILITIES OF THE RAIL- WAY COMPANY AND ITS PASSENGERS. §324. , The street railway as a com- mon carrier. §348. 325. , Discrimination on account o£ color. 349. 326. , Passenger defined. 327. , Duties of carrier to its pas- sengers considered gener- ally. 350. 328. Degree of care required of carrier. 351. 329. Care required of passengers. 352. 330. Degree of care due to chil- dren and infirm persons. 353. 331. Condition of tracks and bridges. 332. Condition of cars and appli- ances. 354. 333. Failure to enclose and guard 355. front platform. 356. 334. Duty to light station and keep same in safe condition. 357. 335. Failure to employ both driver and conductor. 358. 336. Boarding car •while in motion. 337. Leaving car vphile in motion. 338. Riding on front platform. 359. 339. Riding on rear platform. 340. Riding on driving-bar or dash- board — sitting on steps. 360. 341. Riding on step or foot-board. 342. Position In car. 361. 343. Boarding or leaving car by front platform. 362. 344. Protruding head, arm or hand from window. 363. 345. Preparing to alight while car Is in motion. 364. 346. Parallel tracks — alighting or boarding from between. 365. 347, Duty to stop on signal. 366. . Care due to passengers while entering car. . Passenger must be given op- portunity to leave car in safety. . Careless starting and stop- ■ping of car further consid- ered. . Permitting passengers to ride on platform. . Permitting passengers to leave by front platform. . Receiving and discharging passengers while car is in motion. . Regulations as to the place for stopping cars. , Permitting car, platform or steps to become crowded. Regulations as to entering, occupying or leaving car. Regulations as to riding on front platform. Packages carried by passen- gers, and regulations con- cerning them. Rate of speed — regulations limiting same. Collisions with cars and other vehicles and objects near track. Presumptions arising from injury to passenger. Negligence of carrier not im- puted to passenger. Right to maintain Joint ac- tion. Payment and tender of fare. Free passengers, newsboys and trespassers. Traveling on Sunday. 526 §§ 324, 32 5. J THE CAEEIER AND ITS PASSENGEES. 527 § 367. Authority of carrier's ser- vants to remove persons from car. 368. Removal of sick passenger. 369. Ejecting disorderly passen- ger. 370. Expulsion of intoxicated pas- senger. 371. Expulsion of persons while car is in motion. § 372. Criminal, malicious and reck- less conduct of carrier's servants. 373. False arrest and malicious prosecution. 374. Injury of one passenger by another. 375. Nature of the passenger's ac- tion for damages. 376. Care and custody of articles left in car. § 324. The street railway as a commoii carrier ^A street rail- way company is a commoii carrier of passengers, with duties and responsibilities similar to those of a railroad company, and is required to exercise the highest degree of care and skill in the transportation of passengers, by providing suitable tracks, rolling stock and appliances, and in the management of its business and the movement of its cars, keeping pace with science, art and modern improvements in their application to such transporta- tion.-^ S\ich a corporation, although organized principally for the purpose of carrying passengers, may also carry merchandise for hire, and by assuming that function it becomes a common carrier of goods and will be held responsible for the performance of the obligations assumed.^ § 325. Discrimination on account of color Fortunately pub- lic sentiment has so far influenced common carriers operating street railways as to render necessary but few appeals to the courts to define the rights of street car passengers who complain of discrimination on the gTound of race or color. During the last ^Citizens' St. R. R. Co. v. Twi- name. 111 Ind. 587, (1887) ; Holly y. Atlanta St. R. R. Co., 61 Ga. 215, (1878). See sees. 328, 331, 332, post, and cases there cited, and Hutchin- son on Carriers (2d Ed.), sec. 59. ^For the purpose of showing a defendant company to be a com- mon carrier of goods, evidence may be admitted that persons other than the plaintiff have paid their money to the street car conductors, with the knowledge of their superintend- ent, for the carriage of merchandise by them; and if it be proved that it is a comm.on carrier, and that it has received a box to be carried upon one of its cars for hire and that it was lost durjng the trip, it will be responsible for its value. Levi V. Lynn & Boston Ry. Co., 11 Allen 300, 87 Am. Dec. 713, (1865). As to the nature of the passen- ger's action for damages, see sec. 528 THE LAW OF STEEET EAILWATS. [§ 325. decade the equal rights and privileges of white and colored pas- sengers riding in street cars have, in practice at least, been almost universally recognized. In a great majority of the states the rights of passengers in this respect must be determined in accord- ance with the principles of the common law. Pennsylvania has a statute which forbids such discrimination; while, on the other hand, a statute in Georgia^ provides that all railroad companies doing business in that state shall be required to furnish equal accommodations, in separate cars, or apartments, for white and colored passengers; that all conductors of "dummy, electric and street cars," shall be required, and are empowered, to assign all passengers to seats in the cars under their charge, so as to separate the white and colored races as much as possible; and that it shall be unlawful to permit white and colored passengers to occupy the same car or compartment. In Florida, an ordinance of a municipality, providing for the separation of the two races upon street cars, was held to be a valid exercise of the police powers of the municipality.'* The question as to the legal right of a carrier to make any discrimination whatever between members of dif- ferent races has not been settled in all its bearings for the country at large. Two principles are well established, however, first, that it cannot exclude colored persons from its vehicles, on the ground of race alone,' and, second, that if passengers are classified ac- cording to sex, race or color they must be furnished accommo- dations equal in price, quality and convenience.® The doctrine, 375, post, and as to care and cus- Law Gazette 359, (Ohio, 1859). See tody of articles left in cars, sec. also Central R. R. Co. v. Green, 86 376, post. Pa. St. 421, 27 Am. Rep. 718, (1878). = Ga. Laws, 1890-1891, Vol. 1, p. 'Brltton v. Atlanta & Charlotte 158, passed in 1891. Air-Line Ry. Co., 88 N. C. 536, 43 * Grooms v. Schad, 51 Fla. 168, 40 Am. Rep. 749, (1883) ; Chesapeake, So. Rep. 497, (1906) ; Patterson v. Ohio & Southwestern R. R. Co. t. Taylor, 51 Fla. 275, 40 So. Rep. 493, Wells, 85 Tenn. 613, (1887) ; Gray v. (1906). Cincinnati Southern R. R. Co., 11 » Pleasants v. North Beach & Mis- Fed. Rep. 683, (1882) ; Houck v. sion R. R. Co., 34 Cal. 586, (1868) Turner v. Same, 34 Cal. 594, (1868) Derry v. Lowry, 6 Phila. 30, (1865) West Chester & Philadelphia Ry, Co. v. Miles, 55 Pa. St. 209, (1867) Southern Pacifle Ry. Co., 38 Fed. Rep. 226, (1888); McGuinn v. Forbes, 37 Fed. Rep. 639, (1889); Green v. City of Bridgeton, (U. S. D. Ct., Ga.) 9 Cent. Law Jour. 208, State of Ohio v. Kimber, 4 Weekly (1879) ; The Sue, 22 Fed. Rep. 843, § 326. J THE CARBIEB AND ITS PASSENGERS. 529 that, in the absence of statutory inhibition, a common carrier may lawfully make color a basis of classification, and require its white and colored passengers to occupy separate cars or different parts of the same car, when like accommodations are provided, has received the support of many of the courts, both state and federal, and is the rule which has been followed in the greater number of decisions hitherto rendered.^ But in Illinois it has been held that a colored woman cannot lawfully be excluded from a car designated for the use of ladies and gentlemen accompanied by ladies, solely on account of her color.* § 326. Passenger defined. — The duty of a common carrier does not extend to the personal safety of one who is not actually a passenger." But it is not necessary that there should be an express contract to constitiite the relation of carrier and passen- ger, nor that there should be a consummated contract. It may be implied from slight circumstances, and may arise before the payment of fare or entry into the car. The existence of the rela- tion depends largely upon the intention of the person at the time he enters, or while attempting to enter. He is not necessarily a trespasser after he boards the car, even if no fare has been col- (1885); Logwood v. Memph's cS; C. R. Co., 1 Inter-St. Com. Ttep. 339, R. R. Co., 23 Fed. Rep. 318, (1885); (1887); Bowie v. Birmingham Ry. Murphy v. Western & A. R. R. Co., Co., 125 Ala. 397, 27 So. Rep. 1016, 23 Fed. Rep. 637, (1885); The Civil (1899). Rights Bill, 1 Hughes 541, 547. » Although it was decided that it (1875); West Chester & Philadel- might not he an unreasonable rule phia R. R. Co. v. Miles, supra; to require them to occupy different Heard v. Georgia R. R. Co., 3 Inter- seats. Chicago & Northwestern Ry. St. Com. Rep. Ill, (1889). Co. v. Williams, 55 III. 185, (1870). 'See cases cited in the last pre- In Washington, Alexandria, & ceding note; also Goines v. Mc- Georgetown R. R. Co. v. Brown, 17 Candless, 4 Phila. 255, (1861); Day Wall. 445, (1873), construing a stat- V. Owen, 5 Mich. 520, (1858); Hall ute which provided that "no person V. DeCuir, 95 U. S. 485, (1877); shall he excluded from the cars on Louisville, New Orleans & Texas account of color," the court held Ry. Co. V. State of Mississippi, 133 that the evident purpose of the U. S. 587, 10 Sup. Ct. Rep. 348, statute wag to prevent any discrlm- 1 Am. R. R. & Corp. Rep. 724, inatlon whatever. (1890); Heard V. Georgia R. R. Co., "Coller v. Frankford & South- 1 Inter-St Com. Rep. 428, (1888); wark Pass. Ry. Co., 9 W. N. C. (Pa.) Counclll V. Western & Atlantic R. 477, (1886). 34 530 THE LAW OF STEEET EAILWATS. [§ 326. lected from him before he suffers an injury, simply because he has violated a rule of the company as to the mode of getting on/" Where a person intends to take passage on a street car and has hailed it for that purpose, and it has been stopped to enable him to enter, he is to be regarded as a passenger while he is in the act of carefully and prudently attempting to step upon the platform. ^^ Even being in the waiting-room, ready and intending to take pas- sage, has been held sufficient to constitute one a passenger. ^^ But the general rule, applicable alike to general traffic roads and street railways, that all parts of their stations, platforms and the approaches thereto must be kept in a safe condition, cannot be extended so as to include the public street in which passengers are received and discharged, and over which the street railway company has no control. The street is in no sense a passenger station for the safety of which the company is responsible. When "North Chicago St. Ry. Co. v. Williams, 140 111. 275, 29 N. B. Eep. 672, 24 Chic. Leg. News 224, (1892) ; Smith V. Manhattan Ry. Co., 18 N. Y. Supp. 759, (1892) ; North Chicago St. Ry. Co. V. Williams, 140 111. 275, 29 N. B. Rep. 672, 52 Am. & Bug. R. Cas. 522, (1892) ; Barger v. North Chicago St. Ry. Co., 54 III. App. 284, (1894). " Smith V. St. Paul City Ry. Co , 32 Minn. 1, 16 Am. & Bng. R. R. Cas. 310, (1884). See also McDon- ough V. Metropolitan R. R. Co., 137 Mass. 210, (1884); Patterson, Rail- way Accident Law, pp. 204, 213, 215; Beach on Contributory Negli- gence (3cl Ed.), p. 420, note. See also Donovan v. Hartford St. Ry. Co., 65 Conn. 201, 32 Atl. Rep. 350, 29 L. R. A. 297, (1894) ; Kane v. Cicero St. Ry. Co., 100 111. App. 181, (1902) ; Gaffney v. St. Paul City Ry. Co., 81 Minn. 459, (1900); Duchemin V. Boston Ry. Co., 186 Mass. 353, (1904); Schepers v. Union Depot Ry. Co., 126 Mo. 665, (1895), holding that a mere attempt to board a car while in motion is not sufficient, and that there must be some act on the part of the carrier indicating an acceptance; Baltimore Trac. Co. v. State, 78 Md. 409, 28 Atl. Rep. 397, 58 Am. & Bng. R. Cas. 200, 38 Cent. L. J. 315, (1894); Davey v. Green- field Ry. Co., 177 Mass. 106, 58 N. E. Rep. 172, (1900), holding that when a car stops to receive passengers, it is an invitation to persons to enter the car and become passengers, and that until that invitation is recalled, any person actually taking hold of the car and beginning to enter it is a passenger. " Gordon v. Grand St. & Newtown R. R. Co., 40 Barb. 546, (1873). The plaintiff, who had gone into the de- fendant's depot, which was not well lighted, where a horse-car was be- ing shifted from one track to an- other, and was run down and in- jured, was held to be a passenger. One who in good faith goes to a depot to take passage on the cars is a passenger, although he has not purchased a ticket. Grimes v. Pennsylvania R. R. Co., 36 Fed. Rep. 72, (1888). See also sec. 334, post. §326.J THE CAEEIEB AND ITS PASSENGERS. 531 a passenger steps from a car upon the highway and terminates his relations and rights as a passenger, the company is not responsible to him as a carrier for the condition of the street, or for his safe passage from the car to the sidewalk.^^ A child who ^'In a case in Hassachusetts, In which it appears that a passenger who had just left a car bound In one direction, attempted to cross a parallel track and was run down and killed by a car coming from the opposite direction, Barker, J., delivering the opinion of the court, said: "When a common carrier has the exclusive occupation of its tracks and stations, and can arrange and manage them as it sees fit, it may be properly held that persons intending to take passage upon or leave a train have the relation and rights of passengers in leaving or approaching the cars at a station. [Citing Warren v. Fitchburg R. R. Co., 8 Allen 227, (1864); McKimble V. Boston & Maine R. R. Co., 139 Mass. 542, 2 N. B. Rep. 97, (1885) ; Dodge V. Boston & B. Steamship Co., 148 Mass. 207, 214, 19 N. E. Rep. 373, (1889).] But one who steps from a street railway car to the street is not upon the premises of the rail- way company, but upon a public place, where he has the same rights with every other occupier, and over which the company has no control. His rights are those of a traveler upon the highway, and not of a pas- senger." Creamer v. West End St. Ry. Co., 156 Mass. 320, 31 N. E. Rep. 391, (1892). When a passenger has left a car and walked six or eight feet away and is struck by the horses which are being turned to the other end of the car, he has ceased to be a passenger, and the liability of the defendant, if any, is not that of a common carrier, but must depend upon principles that apply to persons lawfully using the highway. Piatt v. Forty-Second St. & Grand St. Ferry R. R. Co., 2 Hun 124, (1874). See also Oddy v. West End St. Ry. Co., 178 Mass. 341, 59 N. E. Rep. 1026, (1901); Conway v. Lewiston Ry. Co., 87 Me. 283, 32 Atl. Rep. 901, 2 Am. & Eng. R. Cas. (N. S.) 339, (1895), 90 Me. 199. (1897); North Chicago St. Ry. Co. v. Walsh, 78 111. App. 595, (1898) ; Lake St. Elev. R. R. Co. V. Gormley, 108 111. App. 59, (1903) ; Gilmore v. Seattle Ry. Co., 29 Wash. 150, (1902). See also Conway v. Lewiston Ry. Co., 90 Me. 199, 38 Atl. Rep. 110, (1897), and Sweet V. Louisville R. Co., 23 Ky. Law Rep. 2279, 67 S. W. Rep. 4, 26 Am. & Eng. R. Cas. (N. S.) 768, (1902), which holds that the carrier must warn a passenger of an unsafe place to alight, and must use due care to avoid putting a passenger off at a place known to the carrier to be dangerous; Street Railway Co. V. Boddy, 105 Tenn. 666, 51 L. R. A. 885, (1900). See also sec. 331, note 59, post. But in Missouri it has been held that, where by a rule of a cable railway company for the manage- ment of its trains at the junction of its lines. It Is customary for pas- sengers leaving trains on one track to pass over an intervening track to get to the sidewalk, and It la the rule and custom of the company to keep the Intervening track free from trains while the discharging train Is at the Junction, persons leaving the train, while crossing the Intervening track, are still pas- sengers, In so far as to be entitled to protection against the negligent 532 THE LAW OF STEEET EAILWATS. [§ 326. is permitted to ride without the payment of fare has the rights of a passenger, to the extent at least that he is entitled to the dili- gence due to a person of his age and discretion.^* But it is held that the company is not charged with the duty of looking after the safety of news-boys who enter its cars for the purpose of sell- ing papers to its passengers;^* and that such a person, being a mere licensee or volunteer, cannot maintain an action for damages driver, who was also conductor, in witlidrawing from the front plat- form, leaving the plaintife, aged nine years, and another boy there together, with no one to prevent them from falling or attempting to leave the car while in motion, and citing with approval, Wilton v. Middlesex R. R. Co., 107 Mass. 108, (1871), which held the company lia- ble for negligence in the manage- ment of its car resulting in injury to a school girl aged nine years, who was permitted to ride on the platform; Pittsburgh, Allegheny & Manchester Pass. Ry. Co. v. Cald- well, 74 Pa. St. 421, (1873), mak- ing the same ruling with reference to a child five years of age; Bren- nan v. Fair Haven & Westville R. R. Co., 45 Conn. 284, 29 Am. Rep. 629, (1877), holding that the mere fact that a boy aged ten years is permitted to ride free, or that he is a trespasser, does not defeat an ac- tion by him for injuries caused by the driver's negligence; Wood on Master and Servant (2d Ed.), p- 638; Beach, Contrib. Neg. (3d Ed.), sec. 297; East Saginaw St. Ey. Co. V. Bohn, 12 Am. Law Reg. 745, 27 Mich. 500, (1873), holding the company liable for permitting a child five years of age to sit on the front platform. " Fleming v. Brooklyn City R. R. Co., 1 Abb. N. C. 433, (1876) ; Ram- ing V. Metropolitan St. Ry. Co., 157 Mo. 477, (1900). See also sec. 365. post. management of the trains on that track, and, that being so, they are relieved from the ordinary duty of looking or listening before cross- ing the track. Burbridge v. Kansas City R. R. Co., 36 Mo. App. 669, (1889), applying and following the rule In Chance v. St. Louis, Iron Mountain & Southern Ry. Co., 10 Mo. App. 351, 357, (1881). See also Atlanta Consol. St. Ry. Co. v. Bates, 103 Ga. 333, 30 S. B. Rep. 41, (1897); Capital Trac. Co. v. Lusby, 12 App. Cas. (D. C.) 295, (1898) ; Mc- Donald V. Chicago & N. W. R. R. Co., 26 la. 124, (1868), holding that it Is the duty of railroad com- panies to keep in a safe condition all portions of their station grounds reasonably near to their platforms, where persons go to take passage on their cars. As to duty to passengers while leaving car to board a transfer car, see Citizens St. Ry. Co. v. Merl, 134 Ind. 609, 33 N. E. Rep. 1014, (1893); Keatoj- V. Scranton Trac. Co., 191 Pa. St. 102, 43 Atl. Rep. 86, (1899) ; Chicago City Ry. v. Carroll, 102 111. App. 202, (1902); Walger v. Jersey City Ry. Co., 71 N. J. L. 356, (1904). "Muehlhausen v. St. Louis R. R. Co., 91 Mo. 332, 1 Ry. & Corp. L. J. 187, (1886), holding the company responsible for permitting a boy eight years of age to get off the front platform ; Metropolitan St. Ry. Co. V. Moore, 83 Ga. 453, (1889), holding that the company was re- sponsible for the negligence of the § 327.] THE OAEEIER AND ITS PASSENGERS. 533 sustained on account of a defective step.^* When a passenger, at the request of the company's servant in charge of a car, assists in replacing the car upon the track, or performs some other bene- ficial act of like character, he is not a mere volunteer, nor a fel- low-servant of the driver or conductor, and, therefore, may re- cover damages for injuries siistained during the performance of the service, because of the negligence of the company. The latter owes to him some degree of care to avoid injury to him in the management of its business; perhaps, however, only ordinary care, or, in other words, the same degree of care which rests upon it to avoid injury to members of the traveling public iipon the street." § 327. Duties of carrier to its passengers considered generally. — The paramount right of way of the company does not relieve it from the duty of exercising care to protect its passengers in the management of its cars.^* The duty which the company owes to its passengers to carry them safely, and to exercise the degree of care iisually exacted of common carriers of passengers, ex- tends to and includes the construction and equipment of its road,^* the management of its cars and track, and all arrange- ments necessary to prevent injuries to its passengers while en route, whether caused by collisions or otherwise.^" It implies "Blackmore v. Toronto St. Ry. van v. Jefferson Ave. Ry. Co., 133 Co., 38 Up. Can. Q. B. 172, (1876). Mo. 1, (1895). "Mclntire St. Ry. Co. v. Bolton, =° Smith v. St. Paul City Ry. Co., 43 Ohio St. 224, (1885) ; Stastney v. 32 Minn. 1, (1884) ; Schmidt v. Second Ave. R. R. Co., 18 N. Y. Steinway & Hunter's Point R. R. Supp. 800, (1892). Co., 55 Hun 496, 29 N. Y. St. Rep. '' O'Neill V. Dry Dock, East Broad- 201, (1890) ; Topeka City Ry. Co. v. way & Battery Ry. Co., 15 N. Y. Higgs, supra; Watson v. St. Paul Supp. 84, (1891). City Ry. Co., supra; Birmingham v. "Citizens' St. R. R. Co. v. Twi- Birmingham, Rochester City & name. 111 Ind, 587, (1887) ; Topeka Brighton R. R. Co., 59 Hun 583, City Ry. Co. v. Higgs, 38 Kan. 375, 37 N. Y. St. Rep. 317, (1891) ; Citi- (1888) ; Watson v. St. Paul City Ry. zens' Ry. Co. v. Shepherd, 29 Ind. Co., 42 Minn. 46, 43 N. W. Rep. 904, App. 412, (1902). See also Pewings (1889); Gilson v. Jackson County v. Mendenhall, 83 Minn. 237, 55 L. Horse Ry. Co., 76 Mo. 282, (1882); R. A. 713, (1901), holding that a Patterson, Railway Accident Law, street railway is not, as to its pas- p. 253. The carrier owes no duty to sengers, guilty of negligence In at- provlde fire extinguishers. SuUi- tempting to operate its cars during 534 THE LAW OF STEBET EAILWATS. [§ 328. that every reasonable precaution in the management and opera- tion of its cars be taken, which requires good tracks, safe cars, competent servants, careful management and judiciousi opera- tion.^^ A carrier of passengers contracts not only for his own skill and care in the conduct of the business, but for the skill and care of those who have made and furnished any of the instru- mentalities or appliances by means of which the business is eon- ducted.^^ It cannot escape liability because its servants acted in good faith, if they failed to exercise good judgment.^^ § 328. Degree of care required of carrier — Common carriers of passengers are held to the exercise of a very high degree of care and skill to secure the safety of their passengers and to prevent accidents and injuries; and this rule applies equally to the proprietors of commercial railroads and street passenger railways."* There may not be much difference in the degree of care which must be exercised by common carriers in different states, although there is a marked diversity of expression in the decisions. MTiether the difference in the phraseology of judicial opinion is due to the elasticity of our language and its wealth of synonyms or to a conscious attempt to formulate definitions as varied in substance as in terms, is a question upon which no opinion need be expressed. In the following stateinent of the a strike of its employees, unless the though the driver was directed to conditions are such that it ought to proceed by a person in the street know or ought reasonably to antici- who signaled the car to move, pate, that it cannot do so and at Schmidt v. Steinway & Hunter's the same time guard from violence, Point Ry. Co., supra, by the exercise of the utmost care See Indianapolis St. Ry. Co. v. on Its part, those who accept its Davison, 31 Ind. App. 605, (1903), Implied invitation to become pas- where plaintiff, a colored man, be- sengers. came a passenger on a car bound ^Topeka City Ry. Co. v. Higgs, for a park which was owned and supra. maintained by the company. It was ^''Birmingham v. Birmingham, held that the company was liable Rochester City & Brighton R. R. for failing to warn plaintiff of a Co., supra; Hutchinson on Carriers conspiracy on the part of certain (2d Ed.), sec. 509. persons to assault and Insult col- ^ Where a car was driven against ored people who might visit the a sewer pipe, throwing it upon park. plaintiff and injuring him, it was « Bonce v. Dubuque St. Ry. Co., held to be an act of negligence, al- 53 la. 278, (1880). § 328.J THE CAEEIEE A]VD ITS PASSENGERS. 635 law as enunciated in different states in street railway cases, each court speaks for itself and in its o^ai language. A carrier of passengers bv street cars is required, in Georgia, to exercise extraordinary diligence;-" in Illinois, the highest degi-ee of prac- tical care and diligence f° in Indiana, the utmost human foresight, knowledge, skill and care;-' in Iowa, the highest degree of care and skill f^ in Kansas, all possible skill, foresight and care ;^® in Kentucky, the utmost care and skill which prudent men are accustomed to use under like circumstances f in Maryland, as far as human care and foresight can avail ;^^ in if innesota, the great- est care and foresight,^^ and the highest degree of care and dili- gence consistent with the nature of its undertaking;^^ in Missouri, the highest degree of care of a veiy prudent person;^* in Mon- == City & Suburban Ry. Co. v. Find- ley, 76 Ga. 311, (1886); Holly v. Atlanta St. R. R. Co., 61 Ga. 21.5, (1878). What does or does not amount to "extraordinary diligence" varies with the circumstances. Macon St. Ry. Co. v. Barnes, 113 Ga. 212, (1901). ^Chicago City Ry. Co. v. Engel, 35 111. App. 490, (1889); Merchant V. South Chicago Ry. Co., 104 111. App. 104, (1902). "Citizens' St. Ry. Co. v. Twi- name. 111 Ind. 587, 13 N. E. Rep. 55, (1887). ^ Bonce V. Dubuque St. Ry. Co., supra. " All possible foresight, means an- ticipation, even knowledge, that the operation of street cars will result in danger to passengers, and that there must be some action with ref- erence to the future, and provident care to guard against such occur- rences, and wise foresight and pru- dent provision that will avert the threatened evil, if human thought or action can do so. Topeka City Ry. Co. V. Higgs, 38 Kan. 375, (1888). See also Southern Kansas Ry. Co. V. Walsh, 45 Kan. 653, 26 Pac. Rep. 45, (1891). " Central Pass. Ry. Co. v. Bishop, 8 Ky. Law Rep. 781, (1887); Same V. Same, 9 Ky. Law Rep. 348, (1887) ; but this does not mean that the company must carry Its passen- gers as safely "as human foresight and care would enable it to do." Louisville City Ry. Co. v. Weams, 80 Ky. 420, (1882); Louisville Ry. Co. V. Park, 96 Ky. 580, 29 S. W. Rep. 455, (1895). =1 Baltimore & Yorktown Turn- pike Road V. Leonhardt, 66 Md. 70, (1886). '^ Watson V. St. Paul City Ry. Co., 42 Minn. 46, 43 N. W. Rep. 904, (1889). ^ Smith V. St. Paul City Ry. Co., 32 Minn. 1, (1884). "O'Connell v. St. Louis Cable & Western Ry. Co., 106 Mo. 482, 17 S. W. Rep. 494, (1891). See also Dougherty v. Missouri R. R. Co., 97 Mo. 647, 8 S. W. Rep. 90t), 904, (1888), holding the com- pany to "the utmost human fore- sight, knowledge, skill and care;" Wilkerson v. Corrigan Consolidated St. Ry. Co., 26 Mo. App. 144, (1887), naming as the standard, "the ut- most diligence, skill and foresight;" Huelsenkamp v. Citizens' Ry. Co., 536 THE LAW OF STEEET EAII.WAYS. [§ 328. tana, the exercise of extraordinary care, or the utmost skill, dili- gence and human foresight;^® in Nehraska, the utmost degree of precaution and care;^® in New York, the highest degree of care and diligence, the utmost human skill and foresight ;^^ in Ohio, the utmost degree of care and skill ;*^ in Pennsylvania, extraordinary care f^ in Texas, such care and prudence as skillful, prudent and careful persons observe under similar circum- stances;*" in Wisconsin, the highest degree of oare;*-^ in the 37 Mo. 537, (1866), holding the car- rier to the utmost care and skill; Gilson V. Jackson County Horse Ry. Co., 76 Mo. 282, (1882), exacting the utmost care and diligence of a cautious person, and holding that an instruction, in which the jury were told that the defendant com- pany must exercise "the greatest possible care and diligence that was necessary," was erroneous, be- cause it stated in substance that the carrier was an insurer of the lives and limbs of its passengers, and required it to be gifted with prescience and to know what no human skill and foresight would re- veal; Powers V. Union Ry. Co., 60 Mo. App. 481, (1894), where the in- struction was that the carrier was required "to exercise highest prac- ticable care, caution and diligence." Grace v. St. Louis Ry. Co., 156 Mo. 295, (1899). '» Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 Pac. Rep. 860, (1895). " Spellman v. Lincoln Ry. Co., 36 Neb. 890, 55 N. W. Rep. 270, (1893). "Coddington v. Brooklyn & Crosstown R. R. Co., 102 N. Y. 66, (1886). See also Dlabolo v. Man- hattan Ry. Co., 8 N. Y. Supp. 334, (1890), requiring, "the very highest and the utmost degree of care pos- sible;" Maverick v. Eighth Ave. R. R. Co., 36 N. Y. 378, (1867), holding that a street car conductor is bound to know where, and under what circumstances, it is prudent to stop his car, and where it is prudent for passengers to leave the same, and that in discharging this duty he should be held to the ut- most care and diligence of a very cautious person. See also Schneider v. Second Ave. R. R. Co., 133 N. Y. 583, 30 N. B. Rep. 752, 754, (1892); Kelly v. Metropolitan St. Ry. Co., 89 App. Div. (N. Y.) 159, (1903). ■» Cincinnati St. Ry. Co. v. Pull- bright, 7 W. L. B. 187, (1882); Brooklyn St. R. R. Co. v. Kelley, 6 Ohio Clr. Ct. Rep. 155, (1892), requiring the greatest care that persons are accustomed to exercise who are engaged in business of the same character, where acci- dents of like nature are liable to occur. »» Philadelphia & Reading R. E. Co. V. Boyer, 97 Pa. St. 91, (1881). See also People's Pass. Ry. Co. v. Weilder, 17 W. N. C. (Pa.), 306, (1886), holding that the company must take every means to avoid danger to its passengers, which reasonable human foresight or pru- dence suggests. « Allen V. Galveston City Ry. Co., 79 Tex. 631, (1891) ; Dallas Ry. Co. V. Randolph, 8 Tex. Civ. App. 213, (1894). •'Heucke v. Milwaukee City Ry. Co., 69 Wis. 401, 34 N. W. Rep. § 329.] THE CAEBIEK AND ITS PASSBNGEES. 537 Federal Circuit Court of the ITorthern District of Illinois, that high degree of care and diligence which is usually exercised by very prudent persons in their business under like circumstances. If, notwithstanding the difference in the terms employed, we are to assume that the courts have intended to hold the defendant companies to the same degree of care, diligence and prudence, the general rule may be stated as follows: A common carrier of passengers by street car is required to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons engaged in that] businessi, in view of the instrumentalities employed and the dangers naturally to be apprehended. The carrier is not an insurer of the safety of its passengers, and is not bound, absolutely and at all events, to carry them safely or without injury. They take the risks of their own carelessness and of dangers which could not be averted by the carrier by the exercise of the degree of care which the law demands.*^ § 329. Care required of passengers. — ^While it is the duty of a street railway company to provide safe and convenient means of entering and leaving its cars, and so to construct its road and operate its cars as to avoid injury to its passengers, there is a corresponding obligation on the part of the passenger to act 243, (1887); Zimmer v. Fox River Carriers, p. 124; Patterson's Rail- Ry. Co., 118 Wis. 614, (1903). way Accident Law, p. 231. •^Van De Venter v. CMcago City Partial intoxication does not ex- Ry. Co., 26 Fed. Rep. 32, (1885) . cuse want of ordinary care and pru- "O'Connell v. St. Louis Cable & dance on the part of a passenger. Western Ry. Co., supra; Schneider and a carrier need exercise no V. Second Ave. R. R. Co., 133 N. Y. higher degree of care towards a 583, 30 N. E. Rep. 752, (1892); person in that condition than is Louisville City Ry. Co. v. Weams, required in case of persons who are supra; Baltimore & Yorktown Turn- sober. Missouri Pacific Ry. Co. v. pike Road v. Leonhardt, supra; Evans, 71 Tex. 361, 9 S. W. Rep. Smith V. St. Paul City Ry. Co., 325, (1888). supra; Gilson v. Jackson County See also Hartley v. Metropolitan Horse Ry. Co., supra; Brooklyn City St. Ry. Co., 148 Mo. 124, (1898) ; R. R. Co. V. Kelley, supra; Allen v. Faul v. North Jersey St. Ry. Co., Galveston City Ry. Co., supra. See 70 N. J. L. 795, 59 Atl. Rep. (1904) ; Hutchinson on Carriers (3d Ed.), Connelly v. Manhattan Ry. Co., 68 see. 892; Beach on Contrib. Neg. Hun 457, (1893), holding that a (3d Ed.), sec. 285; Thompson on company is not bound to anticipate 538 THE LAW OF STEEET EAILWATS. [§ 329 with prudence, and to use the means provided for his safe trans- portation with reasonable circumspection and care, and if his negligent act is a proximate cause of the injury of which he complains he cannot recover.** He is bound to observe the reasonable rules and regulations made by the carrier for insuring the safety of its passengers.*® But in order to escape respon- sibility for contributory negligence he is not required to exercise more care than is usual under similar circumstances with careful persons of the class to which he belongs.*® or provide against storms of extra- ordinary or unusual violence. See sec. 395, post. "Weber v. Kansas City Cable Ry. Co., 100 Mo. 194, (1889) ; Keller V. Hestonville, Mantua & Fair- mount Pass. Ry. Co., 149 Pa. St. 65, 24 Atl. Rep. 159, (1892), hold- ing that negligence on the part of the company is not to be inferred from the fact that a passenger was injured by stepping or slipping from a board located between the step and floor of a summer car, and intended as a guard, and nol as an additional step, and that a passenger so injured is guilty of contributory negligence; Van Winkle v. Brooklyn City R. R. Co.. 46 Hun 564, (1887), deciding thai the mere presence of a basket or other parcel in charge of a passen- ger, over which another passenger stumbles while entering or leaving the car, is not per se the negligence of the company, and that one who attempts to pass over such an ob- stacle assumes the risk and danger of so doing; Highland Ave. & Belt R. R. Co. V. Winn, 93 Ala. 306, 9 So. Rep. 509, (1890), in which It was decided that a recov- ery could not be had by a woman for injuries sustained while leaving a dummy car when in motion, on proof of simple negligence on the part of the company's servants, as by failing to stop at her destina- tion, or where it appeared that she left the car voluntarily, or at the Instance and pacific insistence of the conductor; but that if she left imder protest, and in obedience to his order, it was not necessary to prove that she was forcibly ejected, or compelled to leave by threats or hostile demonstrations. See also as to the negligence of passengers leaving or boarding cars, while en- cumbered with packages or bundles of various kinds, Reddington v. Philadelphia Trac. Co., 132 Pa. St. 154, 19 Atl. Rep. 28, (1890); Ricketts v. Birmingham St. Ry. Co., 85 Ala. 600, 604, 5 So. Rep. 353, (1890); Byrd v. New Orleans City & Lake R. R. Co., 43 La. Ann. 822, 9 So. Rep. 565, (1891). See also Prothero v. Citizens St. Ry. Co., 134 Ind. 431, 33 N. E. Rep. 765, (1892); Hamilton v. Great Palls St. Ry. Co., 17 Mont. 334, 42 Pac. Rep. 860, (1895) ; Clark v. Met- ropolitan St. Ry. Co., 68 App. Div. (N. Y.) 49, (1902) ; Egner v. United Rys. Co., 98 Md. 397, (1904). "Baltimore & Yorktown Turn- pike Road V. Leonhardt, 66 Md. 70, (1886). See also sec. 356, post. « Dimmey v. Wheeling & B. G. B. R. Co., 27 W. Va. 32, (1885). West Chicago St. Ry. Co. v. McNulty, 166 111. 203, 46 N. E. Rep. 784, (1897); Asbury v. Charlotte Ry. Co., 125 N. §§ 330, 331. J THE CAEKIEE AND ITS PASSENGERS. 539 § 330, Degree of care due to children and infirm persons. — A degree of attention, beyond that due to ordinary passengers, should be bestowed on one known to be affected by a disability by which the hazards of travel are increased.*^ A sick or aged person, a delicate woman, a lame man or a child is entitled to more attention and care from those in charge of a car, than adults in full possession of their strength and faculties. They should be allowed more time in which to get on or off the car, or to secure a safe position therein.*^ To compel such a person to stand upon the platform of a crowded car is negligence, and the fact that while occupying such a position he is thrown from the ear by the hasty and careless departure of another passenger, does not relieve the company from the consequences of the wrong- ful act of its servants in placing him in a situation of danger.*® The conductor is acting in the line of his duty in assisting the young or infirm to enter or alight; and the company is liable to a passenger so assisted for injuries received by him and caused by negligence of the conductor while performing that service.''*' § 331. Condition of tracks and bridges. — The duty which the company owes to its passengers to avert all dangers which may be guarded against by the exercise of a high degree of care, makes it responsible for injuries caused by defects in its tracks^^ and the bridges which form parts of its route; and its liability for C. 568, 34 S. E. Rep. 654, 22 Am. City R. R. Co., supra; Jacksonville & Eng. R. Cas. (N. S.) 785, (1899). St. Ry. Co. v. Chappell, 21 Fla. " Wardle v. New Orleans City R. 175, (1885) ; Lansing v. Coney Is. R. Co., 35 La. Ann. 202, (1883); Ry. Co., 16 App. Div. (N. Y.) 146, Jacksonville St. Ry. Co. v. Chap- (1897); Herbich v. North Jersey pell, 21 Fla. 175, (1885) ; Hutchinson Ry. Co., 67 N. J. L. 574, 28 Am. on Carriers (2d Ed.), sees. 669, 670. & Eng. R. Cas. (N. S.) 255, (1902). See Newark Ry. Co. v. McCann, 58 "Sheridan v. Brooklyn City & N. J. L. 642, 34 Atl. Rep. 1052, 33 L. Newtown R. R. Co., supra. R. A. 127, 4 Am. & Eng. R. Cas. ^"Drew v. Sixth Ave. R. R. Co., 1 (N. S.) 312, (1896), holding that the Abbott 556, (1867); Same v. Same, carrier was liable where the pas- 26 N. Y. 49, (1862). senger was taken sick on the car '^ North Chicago St. Ry. Co. v. and conductor refused to stop on re- Schwartz, 82 111. App. 493, (1898) ; quest. Edlund v. St. Paul City Ry. Co., 78 * Sheridan v. Brooklyn & New- Minn. 434, (1899); HoUoway v. town R. R. Co., 36 N. Y. 39, 42, Pasadena Ry. Co., 130 Cal. 177, 62 (1867); Wardle v. New Orleans Pac. Rep. 478, (1900). 540 THE LAW OF STREET RAILWAYS. [§ 331. defects in the latter does not depend upon their ownership or control. If it lay its tracks upon and over a bridge maintained and owned by the state, and constituting a part of the highway occupied by its route, it thereby adopts the bridge as part of its equipment, and is liable for injuries to passengers caused by defects therein, to the same extent as if the bridge had been built by the company itself."^ So the carrier is liable for injury to a passenger by the derailment of a car caused by an automatic switch turning the wrong way,^^ or, if the passenger does not negligently expose himself to danger, where the injury is caused by parallel tracks being laid too close to each other to permit the ears to pass without injury to those riding upon the steps or foot-board, or while seated in the car and resting an arm on the window-sill.^* So it is liable for damages sustained by an == Birmingham v. Rocliester City & Brighton Ry. Co., 14 N. Y. Supp. 13, (1891) ; Same v. Same, 18 N. Y. Supp. 649, (1892). In these cases the plaintiff, while a passenger on defendant's car running on a track which was laid on a bridge con- structed and maintained hy the state, was injured by the falling of balance weights used in elevating and lowering the bridge and sus- pended by dangerous appliances, whose imperfection could have been easily discovered by the manufact- urer, there being no evidence that the railroad company had ever in- spected the bridge. " Farrel v. Houston, West Side & P. F. R. R. Co., 4 N. Y. Supp. 597, (1889) ; Bosqui v. Sutro Ry. Co., 131 Cal. 391, 63 Pac. Rep. 682, (1901); Hallahan v. Metropolitan St. Ry. Co., 73 App. Div. (N. Y.) 164, (1902). " Gray v. Rochester City & Brighton R. R. Co., 15 N. Y. Supp. 927, (1891), distinguishing Coleman V. Second Ave. R. R. Co., 114 N. Y. 609, 21 N. B. Rep. 1064, (1889); Germantown Pass. Ry. Co. v. Bro- phy, 105 Pa. St. 38, (1884). But where the evidence showed that the plaintiff, while passing along the side step«of an open sum- mer car, was struck and injured by one of defendant's closed cars going in an opposite direction; that the space between the tracks at the place of the accident was such that the distance between the body of a closed car and the steps of an open car was at least seventeen inches; that the cars passed each other at the place in question about every half minute; that people frequently stood between the tracks when cars were passing each other; that open cars had been in use on the road for over twenty years; that thou- sands of passengers had stood on the steps of open oars while pass- ing closed cars, and that no acci- dent had ever happened thereby except to the plaintiff, it was held that the defendant was not guilty of negligence in not having more space between the tracks, or in not taking such precautions as would have rendered the accident impos- sible, nor in the failure of the company to prevent the plaintiff riding on the steps or warn him § 331.] THE CAEEIEE AND ITS PASSENGEES. 541 intending passenger who is injured by falling over a bank of snow deposited and left by the company so near its tracks as to seri- ously interfere with access to its cars and endanger the lives of those intending to enter them f^ and in such a case the defendant is not relieved from liability by the fact that at the place of the accident its cars ran over the track of another company, under a lease by which the lessor was bound to keep the track free from snow, especially where it contributed to the creation of the ob- struction.®* The company must exercise due care in the con- struction and maintenance of its track, and in disposing of all materials brought upon the ground, or removed by it, so as not to leave any obstruction which will prevent the safe movement of its cars.®'^ A passenger who knows that the track is being repaired is not necessarily guilty of negligence in entering the car, if he is permitted to deposit his fare and take his seat as a passenger without objection from the conductor. But if, being warned not to board the car until it has passed a certain point where repairs are being made, he persists in getting on and taking the risk, he is guilty of contributory negligence.^® When a car is stopped over an excavation, to allow passengers to alight, o£ the danger of his position, fere with or endanger travelers Craighead v. Brooklyn City R. R. generally, see sec. 290, ante; and as Co., 123 N. T. 391, 25 N. E. Rep. to the general duty of the company 387, (1890). to exercise care in the construction '^Dickson v. Brooklyn City & and management of its tracks, see Newtown R. R. Co., 100 N. Y. 170, Smith v. St. Paul City Ry. Co., 32 (1885). When a person wishing to Minn. 1, (1884); Gilson v. Jackson enter a car runs along its side to County Horse Ry. Co., 76 Mo. 282, reach the platform and falls over (1882). such an obstruction, the question The Passaic Circuit Court of New of his contributory negligence is Jersey in Kowalski v. Newark one of fact for the jury. Mowrey Pass. Ry. Co., 15 N. J. Law Jour. V. Central City Ry. Co., 66 Barb. 43, 50, (1892), held that the permission (1867). of the local authorities to erect ™ Dickson v. Brooklyn City & poles between parallel tracks was Newtown R. R. Co., supra. no defense to an action for injuries "Valentine v. Middlesex R. R. received by a passenger while Co., 137 Mass. 28, (1884) . boarding a car, if in fact they were •^ Citizens' St. Ry. Co. v. Twin- so near as to jeopardize the safety ame, 111 Ind. 587, 13 N. E. Rep. 55, of passengers. See also Poole v. (1887). As to excavations and ob- Consolidated Ry. Co., 100 Mich. 379, structlons in the street which inter- 59 N. W. Rep. 390, (1894). 542 THE LAW OF STREET RAILWAYS. [§ 332. and no warning is given them of the danger and no assistance in leaving the car, the carrier is liable for damages sustained by a passenger who steps off the car into the excavation without contributory negligence, and it is immaterial in such case by whom the excavation was made.®' § 333. Condition of cars and appliances In order to dis- charge its legal duty to its passengers, the company must exer- cise a high degree of care in the selection, maintenance, inspection and use of its cars and their appliances.^" It is the duty of a cable railway company in supplying grips and brakes and in keeping them in repair, to anticipate all such results as might reasonably be expected in such a climate, and in view of the conditions under which they are used and the position where they are located f^ but it cannot be held liable for failing to dis- cover latent defects which escape observation, notwithstanding the cars and their appliances are subjected to frequent and thorough examinations, conducted according to the best tests known.^^ Thus where it appeared that the defendant procured the best grip of which it had knowledge, after due investigation, »" Richmond City Ry. Co. v. Scott, Ave. Ry. Co., 67 App. Div. (N. T.) 86 Va. 902, 11 S. E. Rep. 404, (1890). 605, (1902); Welch v. Syracuse Where a steam railroad car Is Trans. Co., 70 App. Dlv. (N. Y.) 362, stopped at a place where it would (1902) ; Montgomery St. Ry. Co. v. not be safe for a passenger to Mason, 133 Ala. 508, 32 So. Rep. 261, alight, it is the duty of the com- (1902); Ft. Wayne Trac. Co. v. pany to give assistance or warning, Morvillius, 31 Ind. App. 464, (1903) ; or to move the car to some suitable Joslyn v. Milford Ry. Co., 184 Mass. place. Cartwright v. Chicago 65, (1903) ; Bell v. Winnipeg Elee. Trunk Ry. Co., 52 Mich. 606, 18 N. St. Ry. Co., 15 Manitoba Rep. 338, W. Rep. 380, (1884). (1905). As to duty of street railway com- " Adams v. Union Ry. Co., 80 App. panles to stop cars at safe places Div. (N. Y.) 136, (1903). for passengers to alight, see Fin- '^ Sharp v. Kansas City Cable Ry. seth V. Suburban Ry. Co., 32 Ore. Co., 114 Mo. 94, 20 S. W. Rep. 93, 1, 39 L. R. A. 517, (1897); Basa v. (1892). Concord St Ry. Co., 70 N. H. 170, "'Cleveland Trac. Co. v. Ward, 46 Atl. Rep. 1056, (1899); Stewart 27 Ohio C. C. 761, (1905). A street V. St. Paul City Ry. Co., 78 Minn. railway company is bound to know 85, (1899); Foley v. Brunswick that use and climatic influences Trac. Co., 66 N. J. L. 637, (1901); will produce defects in the rails. Henry v. Grant St. Ry. Co., 24 Gilton v. Hestonville Ry. Co., 166 Wash. 246, (1901); Wolf v. Third Pa. St. 460, 31 Atl. Rep. 249, (1895). § 332.] THE CABEIEE AND ITS PASSENGERS. 543 and Lad subjected it to the most approved tests, and had all the machinery of its cars thoroughly examined each night by com- petent men, it was held not liable for an injury occasioned by the breaking of the shank of a grip from some latent defect, causing the car to run rapidly down a steep grade and collide with another car, where it also appeared that there was no negligence in the handling of the car at the time.^^ In an action brought by a passenger against his own carrier and another street railway company, in which the latter is charged with negligence in using a defective brake, it will not be held to the high degi'ee of vigilance demanded of a carrier.®* When an injury to a pas- senger is caused by a defective brake or other appliance on the car, the burden is upon the defendant company to prove that the defect complained of could not have been discovered by careful and skillful inspection.*^ So the conduct of the company is culpable if it omits proper precautions to secure the brake on the rear platform so as to prevent interference by mischievous boys.®* The inability of those in charge of a train of cable cars to control their speed makes a prima facie case of negligence against the company, although the evidence may not be such as to enable the jury to determine the exact nature of the defect.*^ The car- ^ Carter v. Kansas City Cable was a rear brake which might have Ry. Co., 42 Fed. Rep. 37, (1890). been applied if there had been a See also Feary v. Metropolitan St. conductor on the car. Schneider v. Ry. Co., 162 Mo. 75, (1901). Second Ave. R. R. Co., 15 N. Y. " Schneider V. Second Ave. R. R. Supp. 556, (1891). See also Thomp- Co., 133 N. Y. 583, 30 N. B. Rep. son v. Salt Lake Co., 16 Utah 281, 752, (1892), an interesting case on 52 Pac. Rep. 92, 40 L. R. A. 172, the subject of inspection. See also (1898) ; Mock v. Los Angeles Trac. as to the duty and mode of making Co., 139 Cal. 616, (1903). inspection, Wynn v. Central Park, ""Dintruff v. Rochester City & North & East River R. R. Co., 133 Brighton R. R. Co., 10 N. Y. Supp. N. Y. 575, 30 N. E. Rep. 721, (1892). 402, (1890). See Gilmore v. Brook- "'Wynn v. Central Park, North & lyn Heights Ry. Co., 6 App. Div. East River R. R. Co., 14 N. Y. Supp. (N. Y.) 117, (1896), where the brake 172, (1881), reversed on another shoe was disturbed by an incoming point in 30 N. E. Rep. 721, (1892). passenger, and the case was per- Where the car could not be mltted to go to the jury, stopped on account of a broken " Bishop v. St. Paul City Ry. Co., brake resulting from a flaw, the jury 48 Minn. 26, 50 N. W. Rep. 927, may also consider the fact that the (1892). The theory advanced by car was a large one, and that there the defendant, that the accident 544 THE LAW OF STEEET RAILWAYS. [§ 332. rier will be held responsible for a patent defect in tbe fastening of a door,®* for permitting snow and ice to remain an unreasonable length of time on the steps of its cars,®* or for injuries caused by a passenger's dress being caught in the sheet iron covering of the wheel, negligently permitted to project above the floor,™ or on a curtain hook,'^^ or on a protruding bolt or screw,''^ or where injuries resulted because the ring in the trap-door had been turned upright,''^ or from a worn strap-hanger,''* if the danger was such as could have been averted by proper care. A carrier is bound to furnish and maintain safe cars and appliances whether old or new.'^^ But the employment of appliances which are in universal or common use cannot be said to be negligence;^® nor can it be was attributable to a latent de- fect in the governor of the engine, resulting in a temporary accelera- tion in the motion of the engine and of the cable, was held to be untenable, as other cars running at the same time and propelled by the same cable were not carried along at an unusual rate of speed. «»Mackin v. People's St. Ry. Co., 45 Mo. App. 82, (1891). «»Neslie v. Second & Third Sts. Ry. Co., 113 Pa. St. 300, (1886); Hubert v. St. Paul City Ry. Co., 85 Minn. 341, (1902); Foster v. Old Colony St. Ry. Co., 182 Mass. 378, 65 N. E. Rep. 795, (1903); Louis- ville Ry. Co. v. Park, 96 Ky. 580, 29 S. W. Rep. 455, (1895), per- mitting mud to accumulate on steps. See also McCormack v. Syd- ney & Glace Bay Ry. Co., 37 Nova Scotia Rep. 254, (1905). ™ Chase v. Jamestown St. Ry. Co., 15 N. Y. Supp. 35, (1891). As to contributory negligence of passen- gers leaving the car, see sec. 329, ante, and cases therein cited. " Kelly V. New York & Sea Beach Ry. Co., 109 N. Y. 44, (1888); Bowdle V. Detroit St. Ry. Co., 103 Mich. 272. 61 N. W. Rep. 529, (1894); Leyh v. Newburgh Ry. Co., 41 App. Div. (N. Y.) 218, (1899), injury by curtain rod. '2 North Chicago St. Ry. Co. v. Eldridge, 51 111. App. 430, (1893); Chartrand v. Southern Ry. Co., 57 Mo. App. 425, (1894) ; Collins Park Ry. Co. V. Ware, 112 Ga. 663, (1901). "Kingman v. Lynn Ry. Co., 181 Mass. 387, (1902). " Grotsch V. Steinway Ry. Co., 19 App. Div. (N. Y.) 130, (1897). "It is Improper, therefore, on a trial involving the condition of a car to admit evidence to show that it had been in use for years. Wormsdorf v. Detroit City Ry. Co., 75 Mich. 472, 42 N. W. Rep. 1000, (1889) . But where a passenger was hurt by a runaway team owned by the carrier, it was held that he was not entitled to damages, the fact being established that the horses had been worked together daily for more than six weeks previous to the accident, and had given entire satisfaction, and were considered perfectly safe; Quinlan v. Sixth Ave. R. R. Co., 4 Daly 487, (1873). "Werbowlsky v. Ft. Wayne & Blmwood R. R. Co., 86 Mich. 236, 48 N. W. Rep. 1097, (1891); Wit- sell V. West Asheville Ry. Co., 120 N. C. 557, 27 S. K Rep. 125, (1897). § 333.] THE CAEEIEE AND ITS PASSENGEES. 545 said that a mode of construction is defective and not reasonably safe, when the danger is dependent upon conditions which are the result of the negligent condiict of the passengers or the com- pany's servants. The carrier will not be held liable for injuries caused by a defect which is of such a character that no prudent man would anticipate danger from it, and so obscure as to escape observation during careful daily inspection, and where there is nothing to show how long the defect had existed before the time of the accident. ^^ A common carrier is not required to take passengers on a car which has been disabled while en route. But where a car has been damaged during the trip, and the driver, knowing that injury has been done, neglects to examine its extent and to warn a passenger who attempts to enter, the company is liable for resulting damages.''* § 333. Failure to enclose and guard front platform. — The absence of gates or screens on the front platform of a car is a fact which may be taken into consideration with other facts in determining the question of the company's negligence. But the courts have refused to say as matter of law that it is negligence on the part of the company not to furnish such a guard.^® The fact, that the absence of gates or screens is as obvious to a pas- senger as to the carrier, may be considered in determining the prudence or negligence of the passenger's conduct.*" " Kelly V. New York & Sea Beach ley, 6 Out. 115, (1883). The fact Ry. Co., supra. that the front platform is not so "Allen V. Dry Dock, East Broad- enclosed, may be considered with way & Battery R. R. Co., 2 N. Y. other facts, in determining whether Supp. 738, (1888) ; Washington v. there was negligence in leaving the Spokane St. Ry. Co., 13 Wash. 9, 42 front door open when the car was Pac. Rep. 628, (1895) . Where there filled with passengers. Philadelphia is any defect in those things which City Pass. Ry. Co. v. Hassard, 75 Pa. the carrier is bound to supply, the St. 367, (1874). See Patterson's plaintiff by showing this fact makes Railway Accident Law, p. 291; Au- out a prima facie case of negli- gusta Ry. Co. v. Glover, 92 Ga. 132, gence. Davis v. Paducah Ry. Co., 18 S. E. Rep. 406, (1893); Adams 113 Ky. 267, 68 S. W. Rep. 140, v. Washington & Georgetown Ry. (1902). Co., 9 App. Cas. (D. C.) 26, (1896). ™ West Philadelphia Pass. Ry. Co. '" West Philadelphia Pass. Ry. Co. V. Gallagher, 108 Pa. St. 524, (1885) ; v. Gallagher, supra. And it has Hestonville Pass. Ry. Co. v. Connell, been held that the alleged negll- 88 Pa. St. 520, (1879) ; Same v. Kel- gence of the company in omitting 546 THE LAW OF STREET EAILWATS. [§§ 334, 335. § 334. Duty to light station and keep same in safe condition. — It is the duty of a railway company which maintains stations or platforms to keep them in a safe condition*^ and well lighted after nightfall for the safety and accommodation of its passengers, and it will be liable for damages caused by the omission to perform that duty.^^ § 335. Failure to employ both driver and conductor In the absence of a valid public regulation requiring it, a company oper- ating horse cars is not, as a matter of law, bound to employ a conductor, or second man, to guard the cars from intrusion dur- ing their transit or to protect passengers or to assist the driver in the management or control of the oar;*^ but the fact that there was no person in charge of the car, aside from the driver, may be considered as a circumstance bearing on the question of the negligence of the defendant charged by a passenger with failure to exercise due care in the management of its cars.^* to construct some kind of a guard to prevent passengers from getting on or off by the front platform, as well as the contributory negligence of the passenger, is a question for the jury, notwithstanding the exist- ence of a city ordinance requiring that the cars shall be so guarded, forbidding passengers to enter or leave by that end of the car, and making it the duty of conductors and drivers to prevent the practice. Archer v. Ft. Wayne & Elmwood Ry. Co., 87 Mich. 101, 49 N. W. Rep. 488, (1891). See also Graven v. McLeod, 92 Fed. Rep. 846, (1899). "■ Haselton v. Portsmouth Ry. Co., 71 N. H. 589, 53 Atl. Rep. 1016, (1902). See also Muhlhouse v. Mo- nongahela Ry. Co., 201 Pa. St. 237, (1902); Riley v. Cincinnati Trac. Co., 28 Ohio C. C. 626, (1906). See Chap. XVI on Interurban Railways. '"' Groll V. Prospect Park & Coney Island R. R. Co., 4 N. Y. Supp. 80, (1889) ; Gordon v. Grand St. & New- town R. R. Co., 40 Barb. 546, (1873). This liability has been enforced in a large number of cases against com- mercial railroad companies, of which we cite the following: Grimes v. Pennsylvania R. R. Co., 36 Fed. Rep. 72, (1888); Fordyce, Receiver, v. Merrill, 49 Ark. 277, 5 S. W. Rep. 329, (1887); Lafflin v. BufCalo & S. "W. R. R. Co., 106 N. Y. 136, 12 N. B. Rep. 599, (1887); Cross V. Lake Shore & M. S. Ry. Co., 69 Mich. 363, 37 N. W. Rep. 361, (1888). See also Patterson, Railway Acci- dent Law, p. 253. ** Bishop V. Union R. R. Co., 14 R. L 214, (1882). "Lamline v. Houston, West Side & Pavonia Ferry R. R. Co., 14 Daly 144, (1887); Ganiard v. Rochester City & Brighton R. R. 'Co., 50 Hun 22, 24, (1888) ; Allen v. Dry Dock, Bast Broadway & Battery R. R. Co., 2 N. Y. Supp. 738, (1888) ; Schneider V. Second Ave. R. R. Co., 15 N. Y. Supp. 556, (1891), affirmed in 30 N. E. Rep. 752, (1892) ; Holly v. Atlanta St. R. R. Co., 61 Ga. 215, (1878); § 336.J THE CAEEIEB AND ITS PASSENGEES. 547 § 336. Boarding cax while in motion Although the act of boarding a car while in motion is always attended with some risks, the rules applicable to persons entering cars operated by steam are not usually applied with the same strictness to street railwa-ys. It is the general rule, established by numerous deci- sions, that if a person, who has the free use of his faculties and limbs, has given proper notice of his desire to be taken on, and the speed of the car has been slackened in the usual manner, it is not negligence per se to attempt to get on while it is moving slowly, and that if a passenger is injured under such circum- stances the question of his contributory negligence is ordinarily one of fact for the jury.®^ So when a. car has been derailed and Palmer v. Winona Ry. Co., 78 Minn. 138, 80 N. W. Rep. 869, 22 Am. & Bng. R. uas. (N. S.) 696, (1899). See also sec. 225, ante, and cases there cited. " McDonough v. Metropolitan R. R. Co., 137 Mass. 210, (1884); Ep- pendorf v. Brooklyn City & New- town R. R. Co., 69 N. Y. 195, (1877) ; Ganiard v. Rochester City & Brigh- ton R. R. Co., 2 N. Y. Supp. 470, (1888); Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232, 51 N. W. Rep. Ill, (1892); Morrison v. Broadway & Seventh Ave. R. R. Co., 130 N. Y. 166, 29 N. B. Rep. 105, (1891) ; North Chicago City Ry. Co. v. Williams, 14i) 111. 275, 29 N. E. Rep. 672, 24 Chic. Leg. News, 254, (1892); Moy- lan V. Second Ave. R. R. Co., 128 N. Y. 583, 27 N. B. Rep. 977, (1891); af- firming 59 Hun 619; Seitz v. Dry Dock, East Broadway & Battery R. R. Co., 16 Daly 264, 10 N. Y. Supp. 1, (1890) ; Valentine v. Broadway & Seventh Ave. R. R. Co., 4 N. Y. Supp. 481, (1888); Pallez v. Brook- lyn City R. R. Co., 4 N. Y. Supp. 384, (1888); Conner v. Citizens' St. Ry. Co., 105 Ind. 62, (1885); Mc- Swyny v. Broadway & Seventh Ave. R. R. Co., 7 N. Y. Supp. 456, (1889) ; Black V. Brooklyn City Ry. Co., 108 N. Y. 640, 15 N. B. Rep. 389, (1888); Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa. St. 70, (1888) ; Cor- lin V. West End St. Ry. Co., 154 Mass. 197, 27 N. E. Rep. 1000, (1891). See Patterson, Railway Ac- cident Law, p. 291; Beach, Contribu- tory Negligence (3d Ed.), sec. 291. In Briggs v. Union St. Ry. Co., 148 Mass. 72, 19 N. E. Rep. 19, (1888), it was held not negligence per se to attempt to board a car go- ing at the rate of four miles per hour, even if no signal had been given to the driver; and in Mowrey V. Central City Ry. Co., 66 Barb. 43, (1867), that it is not under all cir- cumstances contributory negligence to attempt to board a moving car even by the front platform. See also Schacherl v. St. Paul City Ry. Co., 42 Minn. 42, (1889); Butler v. Glens' Falls, Sandy Hill & Ft. Ed- ward St. R. R. Co., 121 N. Y. 112, (1890); Dietrich v. Baltimore & Hall's Springs Ry. Co., 58 Md. 347, 11 Am. & Eng. R. R. Cas. 27, (1882) ; Meesel v. Lynn & Boston R. R. Co., 8 Allen 234, (1864) ; Cram v. Metro- politan R. R. Co., 112 Mass. 38, (1873); Maguire v. Middlesex R. R. Co., 115 Mass. 239, (1874); Murphy V. Union Ry. Co., 118 Mass. 228, 548 THE LAW OF STEEET RAILWAYS. [§ 336. passengers, who have alighted, attempt to board while it is start- ing slowly, and are thrO'Wn off by a sudden jerk,^* or where the driver fails to stop for a boy who hails him, but tells him to jump on, and in attempting to do so the boy falls and is injured.^'' But one who attempts to board a car while it is in motion does so at his own risk as to all ordinary movements of the cao*,*^ and as to the presence of dangerous obstacles neaj the track. ^® It is neg- (1875) ; Wills v. Lynn & Boston R. R. Co., 129 Mass. 351, (1880) ; Fleck V. Union Ry. Co., 134 Mass. 480, (1883); Omaha St. Ry. Co. v. Mar- tin, 48 Neb. 65, 66 N. W. Rep. 1007, (1896) ; Finkeldey v. Omnibus Cable Co., 114 Cal. 28, 45 Pac. Rep. 996, (1896); Brown v. Washington & Georgetown Ry. Co., 11 App. Cas. (D. C.) 37, (1897) ; White v. Atlanta Consol. Ry. Co., 92 Ga. 494, 17 S. B. Rep. 672, (1893) ; Hansberger v. Se- dalia Ry. Co., 82 Mo. 566, (1899); Lesser v. St. Iiouis Ry. Co., 85 Mo. App. 326, (1900), holding that a per- son who attempted to board car before it reached its proper stop- ping place could not recover; Sahl- gaard v. St. Paul City Ry. Co., 48 Minn. 232, 51 N. W. Rep. Ill, (1892) ; North Chicago St. Ry. Co. v. Haspers, 186 III. 246, (1900) ; South Chicago Ry. Co. v. Dufresne, 102 111. App. 493, (1902) ; Ferros v. Inter- urban Ry. Co., 89 App. Dlv. (N. Y.) 361, (1903); Clinton v. Brooklyn Heights Ry. Co., 91 App. Div. (N. Y.) 374, (1904); Block v. Worces- ter Ry. Co., 186 Mass. 526, (1904). See also Murphy v. North Jersey St. Ry. Co., 71 N. J. L. 5, (1904). But see Dan v. Seattle Ry. Co., 5 Wash. 466, 32 Pac. Rep. 103, (1893), holding that where one attempts to board the front platform of a mov- ing car, without giving any signal, he is guilty of contributory negli- gence. In Fremont v. Metropolitan St. Ry. Co., 83 App. Div (N. Y.) 414, (1903), it was held that, after a block during rush hours, cars may properly pass corners without stop- ping, and that one who attempts to get on while the car is going at the rate of five or six miles an hour as- sumes the risk of doing so. *' People's Pass. Ry. Co. v. Green, 56 Md. 84, (1880). " Maher v. Central Park, North & Bast River R. R. Co.. 57 N. Y. 52, (1876). '* Picard v. Ridge Ave. Pass. Ry. Co., 147 Pa. St. 195, 23 Atl. Rep. 566, (1892) ; Collar v. Frankford & South- wark Ry. Co., 9 W. N. C. (Pa.) 477, (1880); Monroe v. Metropolitan St. Ry. Co., 79 App. Div. (N. Y.) 587, (1903); Packard v. Toledo Trac. Co., 22 Ohio C. C. 578, (1901) ; Ohio Central Trac. Co. v. Matteer, 12 Ohio C. C. (N. S.) 327, (1908), aff'd 81 Ohio St. 494, (1909). In Kansas it is held that ordina- rily it is negligence per se to attempt to board or alight from a moving car, "subject to some exceptions where the car is moving so slowly that the passenger's act may not be contributory negligence as a matter of law." Johnson v. St. Joseph Ry. L. H. & P. Co., 128 S. W. Rep, 243, (Mo. 1910). *» Moylan v. Second Ave. Ry. Co., supra. But see North Chicago St. Ry. Co. V. Williams, 140 111. 275, 29 N. E. Rep. 672, (1892), distinguish- ing Chicago & N. W. Ry. Co. v. Scates, 90 111. 586, (1878). Where § 337.] THE CAEEIEE AND ITS PASSENGEES. 549 ligence per se for a person to attempt to enter a moving car when enoumbered with bimdles,®" or to board a train propelled by steam after it has been put in motion,®^ especially when the platform steps are crowded,®^ or to attempt to board a cable-car when in rapid motion.®* ^Yhen one hails a street car, the conductor and driver have a right to assume that he wishes the car to be stopped or its speed slackened, to enable him to enter, and that he does not intend to get on until its speed is reduced. But if they have reason to believe that he intends to board the car while in motion, and they doubt his ability to do so, if he is an adult no duty rests upon them to warn him off; he is the best judge of the risks of such an act and the responsibility for it rests solely upon him.®* But if he falls and is dragged by the car, although guilty of negligence in attempting to board it while it was in motion, he would be entitled to recover if the driver could have prevented the injury by the exercise of reasonable care in man- aging the car after he was notified of the plaintiff's perilous position.®^ § 337. Leaving car while in motion — There is even more risk involved in an attempt to alight from a moving car, than there is in getting on a car while it is in motion. When a passenger such conduct was the sole cause of Depot Ry. Co., 134 Mo. 681, (1896), the Injury, it is the duty of the court holding that it was not negligence to direct a nonsuit. Thrings v. per se for a boy to attempt to board Central Park E. R. Co., 7 Robt. 616, a moving car, with a basket in his (1868). See also Kowalski v. New- hand. See also Baltimore Trac. ark Pass. Ry. Co., 15 N. J. Law Co. v. State, 78 Md. 409, 28 Atl. Jour. 50, (Passaic Cir. Ct, N. J., Rep. 397, (1894). 1892), holding it to be negligent to "Knight v. Pontchartrain R. R. board a moving car from the space co., 23 La. Ann. 462, (1871). between parallel tracks, when the poles which sustain the wires are planted there; Schmidt v. North '^Phillips V. Rensselaer '& Sara- toga R. R. Co., 49 N. y. 177, (1872). Jersey St. Ry. Co., 66 N. J. L. 424, "^Chicago City Ry. Co. v. Del- 49 Atl. Rep. 438, (1901). ^°^'"*' ^^ "'• -^-PP- ^^°' ^l^^^^- "Reddington v. Philadelphia "Halahan v. Washington & Trac. Co., 132 Pa. St. 154, (1890). Georgetown R. R. Co., 8 Mackey See also Birmingham Ry. Co. v. 316, 18 Wash. Law Rep. 751, (1890). Brannan, 132 Ala. 431, 31 So. Rep. '^Woodard v. West Side St. Ry. 523, 25 Am. & Bng. R. Cas. (N. S.) Co., 71 Wis. 625, 38 N. W. Rep. 347, 155, (1902). But see Sly v. Union (1888). 650 THE LAW OF STREET EAlLWAYS. [§ 337. leaves a moving car he incurs more or less danger because lie is affected by its momentum. When he boards the car he has some support; when he leaves it he has none.^* But the courts have not attempted to define the i-ights and liabilities of the carrier and its passengers in this respect by rigid rules.^^ As in boarding, so in alighting, the passenger assumes the risk of all injuries caused by the ordinary movements of the car. Unless informed by sig- nal or otherwise, the driver and conductor are not bound to know that a passenger expects to leave the car or wishes to have it stopped; but they are required tO' stop on signal and to exercise a high degree of care in affording passengers a reasonable oppor- tunity to alight in safety. It has been held in several states that it is not, under aE circumstances, negligence in law for an adult passenger in the possession of his faculties and unincumbered in his movements, after notifying the conductor of his destination and giving a signal to stop, to step off while the car is moving very slowly,®^ especially where the conductor, by word or gesture, indicates that it will not come to a full stop and invites the passen- ger to alight while the car is in motion,®^ nor, if it is moving slowly, after it has been stopped at the place of destination and started again before the passenger could alight;^"" nor for a child '"Baltimore & York Town Turn pike Road v. Leonliardt, 66 Md. 70 (1886). "Ante, sec. 336; Beach, Contrib utory Negligence (3d Ed.), sees 291, 292. " Ganley v. Brooklyn City Ry. Co. 7 N. Y. Supp. 854, (1889); Munroe V. Third Ave. R. R. Co., 50 N. Y. Super. 114, (1887); Poster v. Den- ver Consol. Co., 11 Colo. App. 187 53 Pac. Rep. 391, (1898); Birming- ham Ry. Co. v. James, 121 Ala. 120 25 So. Rep. 847, (1898); Spring- field Consol. Ry. Co. v. Hoeffner, 175 111. 634, 51 N. B. Rep. 884 (1898); Bahcock v. Los Angeles Trac. Co., 128 Cal. 173, 60 Pac. Rep 780, (1900) ; Root v. Des Moines Ry, Co., 113 la. 675, (1900); Willis v Metropolitan St. Ry. Co., 63 App Div. (N. Y.) 332, (1901); Beringer V. Dubuque Ry. Co., 118 la. 135, (1902); Paganini v. North Jersey Ry. Co., 70 N. J. L. 385, (1904); Union Trac. Co. v. Siceloff, 34 Ind. App. 511, (1905). "» Chicago City Ry. Co. v. Mum- ford, 97 111. 560, (1881). But a re- fusal to stop when asked by a child six and one-half years old has been held not of itself to justify the child in leaving the car by the front plat- form while the car is In full motion. Cram v. Metropolitan R. R. Co., 112 Mass. 38, (1873). See Maisels v. Dry Dock Ry. Co., 16 App. Div. (N. Y.) 392, (1897). 1™ McLaughlin v. Atlantic Ave. E. R. Co., 12 N. Y. Supp. 453, (1888). See also North Birmingham St. R- R. Co. V. Calderwood, 89 Ala. 247, § 337.J THE CAEEIEB AND ITS PASSENGEES. 551 to jump off when ordered by the conductor who refuses, on re- quest, to stop the car,^"^ or to avoid a blow from the driver's whip,^"* nor when ordered off by the conductor."^ But in such a case it is proper to consider whether or not the child was actually influenced by the order of the conductor, the rate of speed at which the car was going and any lameness or physical infirmity of the passenger, in determining the question of his contributory negligence.^"* But it has been held to be negligence per se,^"® which justifies a non-suit, ■'''® to step off the car while it is being slowed up, in order to stop in response to a passenger's request, or when encumbered by a load or bundle,^"^ or to jump from a 7 So. Rep. 360, (1890); West End & Atlanta St. Ry. Co. v. Mozely, 79 Ga. 463, 4 S. E. Rep. 324, (1887); Conley v. Forty-second St. M. & St. Nicholas Ave. Ry. Co., 2 N. Y. Supp. 229, (1888) ; Lax v. Forty-sec- ond St. & Grand St. Ferry R. R. Co., 46 N. T. Super. 448, (1880). But see Campbell v. Los Angeles Ry. Co., 135 Cal. 137, 67 Pac. Rep. 50, (1901), holding that where a passenger alighted, despite the caution of the conductor, before the car had reached his destination, he could not recover. '"Wyatt V. Citizens' Ry. Co., 55 Mo. 485, (1874). , '"Mettlestadt v. Ninth Ave. R. R. Co., 4 Robt. 377, (1867). '■"Lovett V. Salem & South Dan- vers R. R. Co., 9 Allen, 557, (1865). ™Wyatt V. Citizens' Ry. Co., 62 Mo. 408, (1876); Cronan v. Cres- cent City Ry. Co., 49 La. Ann. 65, 21 So. Rep. 163, (1897). ™ Saffer v. Dry Dock, East Broad- way & Battery R. R. Co., 5 N. Y. Supp. 700, (1889) ; Nichols v. Sixth Ave. R. R. Co., 38 N. Y. 131, (1868) ; White V. West End St. Ry. Co., 165 Mass. 522, 43 N. E. Rep. 298, (1896) ; Neft V. Harrisburg Trac. Co., 192 Pa. St. 501, 43 Atl. Rep. 1020, (1899) ; Champane v. La Crosse Ry. Co., 121 Wis. 554, (1904); Arm- strong V. Metropolitan St. Ry. Co., 36 App. Div. (N. Y.) 525, (1899). ™ Hagan v. Philadelphia & Gray's Ferry Ry. Co., 15 Phila. 278, (1881) ; Outen V. North & South St. Ry. Co., 94 Ga. 662, 21 S'. E. Rep. 710, (1894) ; Blakney v. Seattle Elec. Ry. Co., 28 Wash. 607. 68 Pac. Rep. 1037, (1902). ^ Ricketts V. Birmingham St. Ry. Co., 85 Ala. 600, 5 So. Rep. 363, (1888), in which the court, per Clop- ton, J., said: "There can be no .question that the plaintiff was guilty of negligence which proxi- mately contributed to his injury, if he was standing on the steps in front of the car, with a keg of lead in his hands, when the car started forward, and without necessity un- dertook, while the car was in mo- tion, to step off on the ground, and would not have been injured if he had remained on the steps." See also Kirchner v. Detroit Ry. Co., 91 Mich. 400, 51 N. W. Rep. 1059, (1892); Richmond v. Second Ave. Ry. Co., 76 Hun 233, (1894), hold- ing it to be negligent to step off backwards while carrying bundles. 552 THE LAW OF STREET KAILWAYS. [§ 338. cable car in full motion,^*'* or to step off backwards/"® and that it is gross negligence to jump from an electric car when it is going at the rate of twenty miles per hour.-'^" §338. Riding on front platform — Where passengers are warned by placards posted on the cars not to ride on the front platform, one who, while there unnecessarily, is thrown off and injured by a jolt of the car is guilty of contributory negligence in not observing the reasonable regulations of the company, ^^^ of which it is his duty to be aware, although he has not in fact seen them.^-'^ It is a well settled rule that it is the duty of a passenger to place himself in a safe position on the car, and that he assumes the ordinary risks of voluntarily riding on the front platform. It is a place of danger, and its occupation by a passenger voluntarily is prima facie evidence of negligence."'^"'^^ But when a passenger, "" Such conduct will bar a recov- ery, although the car was running at a rate of speed prohibited by city ordinance. Weber v. Kansas City Cable Ry. Co., 100 Mo. 194, (1889). "'Seattle v. Citizens' Pass. Ry. Co., 1 Atl. Rep. 574, (1885) ; Purtell V. Ridge Ave. Pass. Ry. Co., 3 Pa. Co. Ct. Rep. 273, (1887); Steuer v. Metropolitan Ry. Co., 46 App. Div. (N. y.) 500, (1900). "" In such a case, the fact that an ordinance limited the speed to seven miles per hour would consti- tute no excuse. Masterson v. Ma- con City & Suburban St. R. R. Co., 88 Ga. 436, 14 S. E. Rep. 591, (1892). In Highland Ave. & Belt R. R. Co. V. Winn, 93 Ala. 306, 9 So. Rep. 509, (1890), it was held to be con- tributory negligence to alight from a slowly moving car of a dummy railway, although the conductor failed to stop the train as requested. As to negligence of a woman leaving a car while in motion, to avoid the repetition of an Insult which she feared would be offered to her, see Ashton v. Detroit City Ry. Co., 78 Mich. 587, 44 N. W. Rep. 141, (1889); and as to regulations for- bidding passengers to alight while the car is in motion, see sec. 356, post. "" Highland Ave. & Birmingham Ry. Co. V. Donovan, 94 Ala. 299, 10 So. Rep. 139, 140, (1891); Balti- more City Pass. Ry. Co. v. Wilkin- son, 30 Md. 224, (1868); Thane v. Scranton Trac. Co., 8 Pa. Super. Ct. 446, (1898) ; 191 Pa. St. 249, 43 Atl. Rep. 136, (1899) ; Burns v. Bos- ton Ry. Co., 183 Mass. 96, (1903). '"Baltimore & Yorktown Turn- pike Road V. Cason, 72 Md. 377, 20 Atl. Rep. 113, 3 Am. R. R. & Corp. Rep. 224, (1890). See also O'Neil V. Lynn & Boston R. R. Co., 155 Mass. 371, 29 N. E. Rep. 630, (1892). But see Sweetland v. Lynn Ry. Co., 177 Mass. 574, 59 N. E. Rep. 443, 51 L. R. A. 783, (1901), where judgment for plaintiff was affirmed because the regulation had become obsolete. "» Solomon v. Central Park, North & East River R. R. Co., 1 Sweeney 298, (1869); Wilmott v. Corrigan Consolidated St. Ry. Co., 106 Mo, 535, 17 S. W. Rep. 490, (1891); Highland Ave. & Birmingham R. R, Co. V. Donovan, supra; Holland v. § 338.] THE CAKEIEE AND ITS PASSENGEBS. 553 being unable to find room within a crowded car, takes a position on tbe front platform, and remains there without objection and with the knowledge and acquiescence of the carrier's servants, retaining his position as well as he can by using supports which are within his reach, and is nevertheless injured by being pushed from the ear by the pressure of the crowd,^-'* or by being thrown off by a severe jolt caused by the car, while being driven at a dangerous rate of speed, striking an obstacle on the track or passing with great speed around a curve,^^^ the question of his contributory negligence should be submitted to the jury.-^^® And West End St. Ry. Co., 155 Mass. 387, 29 N. B. Rep. 622, (1892) ; Heckrott V. Buffalo St. Ry. Co., 13 Am. Law Rec. 295, (1883), reviewing many of the New York cases; Hayes v. Forty- Second St. & Grand St. Perry R. R. Co., 97 N. Y. 259, 21 Am. & Eng. R. R. Cas. 358, (1884) ; Clark v. Eighth Ave. R. R. Co., 36 N. Y. 135, (1887) ; Meesel v. Lynn & Boston R. R. Co., 8 Allen 239, (1874). See also Tomp- kins V. Boston Elev. Ry. Co., 201 Mass. 114, 87 N. E. Rep. 488, 131 Am. St. Rep. 392, (1909). See an article entitled, "Rights of Street Car Platform Passengers," in 20 Cen. Law Jour. 104; Thompson's Carrier of Passengers, p. 344, and Patterson's Railway Accident Law, p. 290. "'Lehr v. Steinway & Hunters Point R. R. Co., 118 N. Y. 556, (1890), affirming 44 Hun 627. See an elaborate note to this case hy Mr. Lewis in 2 Am. R. R. & Corp. Rep., pp. 243, 251; Noble v. St. Joseph Ry. Co., 98 Mich. 249, 57 N. W. Rep. 126, (1893); Pray v. Omaha St. Ry. Co., 44 Neb. 167, 62 N. W. Rep. 447, (1895) ; Watson v. Portland Ry. Co., 91 Me. 584, 40 Atl. Rep. 699, 44 L. R. A. 157, (1898); Reem v. St. Paul City Ry. Co., 77 Minn. 503, 80 N. W. Rep. 638, (1899); Cattano v. Metropolitan St. Ry. Co., 173 N. Y. 565, (1903). "" Wilmott v. Corrigan Consoli- dated St. Ry. Co., supra; Highland & Birmingham R. R. Co. v. Dono- van, supra. ""Archer v. Ft. Wayne & Elm- wood Ry. Co., 87 Mich. 101, 49 N. W. Rep. 488, (1891) ; Upham v. De- troit City Ry. Co., 85 Mich. 12, 48 N. W. Rep. 199, 4 Am. R. R. & Corp. Rep. 160, (1891), and note; Au- gusta & Summerville R. R. Co. v. Renz, 55 Ga. 126, (1875); Wilton v. Middlesex R. R. Co., 107 Mass. 108, (1871); Walling v. Railway Co., 12 Phila. 309, (1878); Murray v. Brook- lyn City R. R. Co., 7 N. Y. Supp. 900, (1889); Hourney v. Brooklyn City R. R. Co., 7 N. Y. Supp. 602, (1S89); Hadencamp v. Second Ave. R. R. Co., 1 Sweeney 490, (1869). As to children riding on the front plat- form, see Crissey v. Hestonville, Mantua & Fairmount Pass. Ry. Co., 75 Pa. St. 83, (1874). But in Burns v. Boston Ry. Co., 183 Mass. 96, 66 N. E. Rep. 418, 29 Am. & Eng. R. Cas. (N. S.) 918, (1903), where plaintiff was a pas- senger on a front platform of a crowded car, the court said: "The fact that the car was crowded is immaterial. The plaintiff was not obliged to get on to a crowded car, and it was not negligence on the part of the defendant to take him on as a passenger, because the 554 THE LAW OP STREET EAILWAYS. [§ 339. it is not conclusive evidence of negligence to omit to hold on to some part of the car for support. •^^'^ It has sometimes been held that a company is not absolved from liability because the passen- ger remained on the front platform, although there was room iaside.-'^^ While this does not seem to be in accord with the weight of authority or to rest on sufficient reason, the rule may very properly be enforced under some circumstances, as where the company requires passengers who are smoking to occupy the front platform.-'^® But the fact that the conductor knew that the passenger was occupying the more hazardous position, or that it was customary for others to ride there, is not alone sufficient to relieve the plaintiff from the charge of contributory negli- gence.-^^" § 339. Eiding on rear platform. — ^A passenger who rides upon the rear platform, when there is ample standing room inside of the car, in which there are pendant straps which a person may hold while standing, is guilty of contributory negligence, and if an injury result to him, which would not have occurred had he been inside the car, he cannot maintain an action against the carrier. -^^^ The presumption of negligence against the passenger car was crowded. The fact that "'Nolan, v. Brooklyn City R. R. there were other passengers on the Co., 87 N. Y. 63, 67, (1881), holding platform did not show that the rule also that the company could not had been waived by the defendant shield itself under a provision of a or was not in force." statute which, relieved it from lia- "' Cornish v. Toronto St. Ry. Co., bility for injuries received by one 23 Up. Can. C. P. 355, (1873) ; Ginna riding on the front platform, upon V. Second Ave. R. R. Co., 67 N. Y. posting in the car a warning 596, (1876), affirming 8 Hun 494, against that practice and furnish-' (1876), where the car was derailed ing seats, by posting a notice for- by an open switch. Beach, Con- bidding passengers to get on or off tributory Negligence (2d Ed.), sec. the front platform. 293, note, and sec. 294. «» Chicago West Division Ry. Co. "'Burns v. Bellefontaine Ry. Co., v. Klauber, 9 111. App. 613, (1881). 50 Mo. 139, (1872) ; Maguire v. Mid- See also Ashbrook v. Frederick Ave. dlesex R. R. Co., 115 Mass. 239, Ry. Co., 18 Mo. App. 290, (1885); (1874). See also Hunt v. Missouri Downey v. Hendrie, 46 Mich. 498, R. R. Co., 14 Mo. App. 160, (1883) ; (1881) ; Barlow v. Jersey City Ey. Augusta & Summerville R. R. Co. Co., 67 N. J. L. 364, (1902). V. Renz, 55 Ga. 126, (1875); Ginna "i Andrews v. Capital, North 0. v. Second Ave. R. R. Co., supra; St. & South Washington R. R. Co., Beach, Contributory Negligence (3d 2 Mackey 137, (1882); Ward v. Cen- Ed.), sees. 293, 294, 295. tral Park R. R. Co., 11 Abb. Pr. (N. § 340.J THE CAERIEE AND ITS PASSENQEES. 555 is not conclusive and may be overcome by proof tbat he could not secure a safer place/^^ even though there were ice and snow on the platform at the time and the passenger did not take hold of the rail to prevent falling.^^^ But it is no excuse that the driver or conductor knew he was in an unsafe place and did not compel him to leave it, when the danger was equally well known to the passenger. ^^* §340. Biding on driving-bar or dash-board — sitting on steps. — Although, as we have seen,-^^® a passenger may without negli- gence, under some circumstances, ride on either the front or rear platform, if he rides there he should seek a position which will expose him to as little danger as possible. If, instead of stand- ing, he voluntarily sits upon the driving-bar or dash-board, even on the invitation of the driver, ^^® or leans back against the end S.) 411, (1871) ; Aikin v. Frankford & Souttwark Philadelphia City Pass. R. R. Co., 142 Pa. St. 47, 21 Atl. Rep. 781, (1891). But in Cin- cinnati Omnibus Co. v. Kuhnell, 11 W. L. B. 189, (1884), it was held that occupying such a position, by the permission of the conductor, and not in violation of any posted rule, is not negligence per se. See also Matz v. St. Paul City Ry. Co., 52 Minn. 159, 53 N. W. Rep. 1071, (1892); Thane v. Scranton Trac. Co., 191 Pa. St. 249, 43 Atl. Rep. 136, (1899). "^ Ward V. Central Park R. R. Co., supra; Thirteenth & Fifteenth Sts. Pass. Ry. Co. v. Boudrou, 92 Pa. St. 475, (1880). See Beach on Con- tributory Negligence (2d Ed.), sees. 293, 294, 295. •^ Fleck V. Union Ry. Co., 134 Mass. 480, (1883). ^Ward V. Central Park R. R. Co., supra. But on accepting a passen- ger on the rear platform of a crowded car, the company owes him a duty to transport him so as to render his position reasonably safe; and in rounding a dangerous curve there Is an obligation to give warn- ing to passengers. Gatens v. Met- ropolitan St. Ry. Co., 89 App. Div. (N. Y.) 311, (1903). See Terre Haute Ry. Co. v. Lauer, 21 Ind. App. 466, (1898), holding that where a pas- senger left a place of safety in obedience to conductor's request and took his place on the rear platform, the question of his negligence was for the jury. See also Reber v. Pittsburg Trac. Co., 179 Pa. St. 339, 36 Atl. Rep. 245, (1897). In North Chicago St. Ry. Co. v. Bauer, 179 111. 126, 53 N. E. Rep. 568, 45 L. R. A. 108, (1899), where the passenger went to the rear platform, while the car was still in motion, for the pur- pose of alighting, it was held not to be negligence per se, if there was no regulation of the company in respect to such situation. See also Blondel v. St. Paul City Ry. Co., 66 Minn. 284, 68 N. W. Rep. 1079, (1896) ; Byron v. Lynn Ry. Co., 177 Mass. 303, 58 N. B. Rep. 1015, (1900). ""Ante, sees. 338, 339. ""Downey v. Hendrie, 46 Mich. 498, 9 N. W. Rep. 828, (1881), ap- proved in Upham v. Detroit City 556 THE LAW OF STEEET EAILWATS. [§ 341. of the car with his foot on the hand-rod of the dash-rail, where he is injured by a collision between the car and a wagon,^^'^ or sits on the floor of the platform with his feet on the step, his knees projecting beyond the sides of the car,^^* he is guilty of negligence directly contributing to his injury. But the fact that a passenger was standing on the rear platform with his hand on the railing at the end of the car cannot be considered conclusive evidence of contributory negligence in an action against a dray- man for injuries caused by the defendant's dray crushing plaintiff's hand.^2» §341. Riding on step or foot-board — It is obviously more dangeroiis to ride on the step or foot-board of a car than to oc- cupy a seat inside.-'^'' Therefore, it is the duty of a passenger, on boarding a car, if possible, to place himself in a safe position therein, and if he fails to do so, it will afford him no excuse, that it was customary for others to do the same thing, ajid that he was not warned of the danger of his position and compelled to seek another. ■'^■^ If he voluntarily rides on the step or on, the Ry. Co., 85 Mich. 12, 48 N. W. Rep. 199, (1891) ; Beach on Contributory Negligence (3d Ed.), sec. 294. But in an action against an omnibus company by a passenger on a street car who was sitting on the rear dash-board by the permission of the conductor, and not in violation of any known rule of the street rail- way company, where he was injured by a collision of an omnibus with the car, it was held that occupying that position was not per se an act of negligence as between him and the defendant, as the omnibus com- pany could not avail itself of the rules of the street railway company. Cincinnati Omnibus Co. v. Kuhnell, 11 W. L. B. 189, (1884). ^ Heckrott v. Buffalo St. Ry. Co., 13 Am. Law Rec. 295, (1885). ^ Butler V. Pittsburgh & Birming- ham St. Ry. Co., 139 Pa. St. 195, (1891) ; especially where he occu- pies that position against the rules of the company and the warning of the driver. Wills v. Lynn & Boston Ry. Co., 129 Mass. 351, (1880). Riding on a bumper of a car is contributory negligence. Bard v. Pennsylvania Trac. Co., 176 Pa. St. 97, (1896) ; Nieboer v. Detroit Elec. Ry. Co., 128 Mich. 486, 87 N. W. Rep. 626, 54 Cent. L. J. 442, (1901) ; Paquin v. St. Louis Ry. Co., 90 Mo. App. 118, (1901) ; Columbus Ry. Co. V. Muns, 27 Ohio C. C. 277, (1905). "'Selgel V. Bisen, 41 Cal. 109, (1891). See also Hunt v. Missouri R. R. Co., 14 Mo. App. 160, (1883), in which it was held not to be contributory negligence to ride on the platform in the absence of a regulation forbidding the practice. i" Clark V. Eighth Ave. R. R. Co., 36 N. Y. 135, (1887); Ashbrook v. Frederick Ave. Ry. Co., 18 Mo. App. 290, (1885). "1 Ashbrook v. Frederick Ave. Ry. Co., supra; Chicago West Division § 341.] THE CABEIEE AND ITS PASSENGEES. 557 foot-board of an open car, when there is ample room inside, and while so riding is injured by a collision with a car on a parallel track or with a vehicle or other obstacle ia the street, his negli- gence is prima facie established and the onus is upon him to rebut the presumption ;^^^ but, while such conduct will ordinarily constitute a defense in an action against the carrier, it is no de- fense to an action against another party for colliding with the passenger.-^*^ It is not, however, under all circumstances, negli- gence per se for a passenger, with the knowledge and consent of the conductor and when there is no room elsewhere on the car and no rule of the company is violated, to ride on the step or foot-board. The carrier may refuse to permit a passenger to ride in that position, but when it accepts him as a passenger and per- mits him to occupy a place of more than ordinary danger because the car is crowded, it is bound to carry him with a degree of skill, prudence and care proportioned to the daggers to be appre- Ry. Co. V. Klauber, 9 111. App. 613, (1881); Nles v. Brooklyn Heights Ry. Co., 68 App. Div. (N. T.) 259, (1902). See West Chicago St. Ry. Co. V. Marks, 182 111. 15, 55 N. E. Rep. 67, (1899), In which plaintiff re- covered, where conductor failed to warn him that the car was about to pass a viaduct; Chicago Union Trac. Co. v. Kallberg, 107 111. App. 90, (1903), where the court held that it was competent to show that the running board of the car, on which plaintiff was standing when injured, was customarily used by passengers, and that the company must have known of this custom, and that such custom was ac- quiesced in by it. "'Clark V. Eighth Ave. R. R. Co., 36 N. T. 135, (1867) ; Schoenfeld v. Milwaukee City Ry. Co., 74 Wis. 433, 6 Ry. & Corp. L. J. 396, (1889) ; Craighead v. Brooklyn City R. R. Co., 123 N. Y. 391, 25 N. E. Rep. 387, (1890) ; Schneider v. North Chi- cago St. Ry. Co., 80 111. App. 306, (1898) ; Brightwood Ry. Co. v. Car- ter, 12 App. Cas. (D. C.) 155, (1898); Nugent v. New Haven St. Ry. Co., 73 Conn. 139, 46 Atl. Rep. 875, (1900); Flynn v. Consolidated Trac. Co., 64 N. J. L. 375, 45 Atl. Rep. 799, (1900); Fraser v. Cali- fornia St. Ry. Co., 146 Cal. 714, (1905) ; Moody v. Springfield St. Ry. Co., 182 Mass. 158, 65 N. E. Rep. 29, 29 Am. & Eng. R. Cas. (N. S.) 117, (1902). See also Sweeney v. Kansas City Ry. Co., 150 Mo. 385, (1899), where conductor forgot to stop the car at a street on request of plaintiff, who in the meantime had reached the running board. Conductor asked plaintiff to remain until the car reached next street, and permitted him to ride on the running board. Held, plaintiff was not guilty of contributory negli- gence. See also Beach, Contributory Neg- ligence (3d Ed.), sec. 294. i» Connolly v. Knickerbocker Ice Co., 114 N, Y. 104, (1889). 558 THE LAW OF STREET RAILWAYS. [§ 341. bended."* If, imder suoh circumstances, he is injured by tbe careless management of tbe car, tbe question of bis negligence should be submitted to tbe jury.^^^ 1=' Huelsenkamp v. Citizens' Ry. Co., 37 Mo. 537, (1868); Wilde v. Lynn Ry. Co., 163 Mass. 533, 40 N. B. Rep. 851, (1895); Schwartz v. Cincinnati St. Ry. Co., 8 Ohio C. C. 484, (1894) ; Fraser v. London St. Ry. Co., 29 Ontario Rep. 411, (1898). ^ Bowie V. Greenville St. Ry. Co., 69 Miss. 196, 10 So. Rep. 574, (1891) ; Germantown Pass. Ry. Co. v. Wall- ing, 97 Pa. St. 55, (1881), affirming 12 Phila. 309; Topeka City Ry. Co. v. Higgs, 38 Kan. 375, (1888) ; City Ry. Co. V. Lee, 50 N. J. L. 435, (1888) ; Spooner v. Brooklyn City R. R. Co., ' 54 N. y. 230, (1873) ; Fleck v. XJnlon R. R. Co., 134 Mass. 480, (1883); Geltz V. Milwaukee City Ry. Co., 72 Wis. 307, 39 N. W. Rep. 866. (1888) ; Clark V. Eighth Ave. R. R. Co., 36 N. Y. 135, (1867) ; West Philadelphia Pass. Ry. Co. v. Gallagher, 108 Pa. St. 524, (1885); Wilscam v. Mon- treal St. Ry. Co., 32 L. C. J. 246, (1888) ; Magulre v. Middlesex R. R. Co., 115 Mass. 239, (1874) ; Lehr v. Steinway & Hunter's Point R. R. Co., lis N. y. 556, 23 N. B. Rep. 889, 2 Am. R. R. & Corp. Rep. 240, (1890), holding it not to be negli- gent as a matter of law for a pas- senger to surrender his seat to one less able to stand than himself, and take a position with one foot on the front platform and the other on the step of a crowded car, when he cannot find room elsewhere. Ac- cord, Brainard v. Nassau Ry. Co., 44 App. Dlv. (N. T.) 613, (1899), where passenger surrendered hi8 seat in a crowded car to a lady and took his position on the running board. In Wlllmott v. Corrigan Con- solidated St. Ry. Co., 106 Mo. 535, 17 S. W. Rep. 490, (1891), the court, al- though holding that it was the pas- senger's duty to take a safe position on the car, decided that If he stood on the front step and was thrown off and injured by reckless driving, the company was not entitled to a nonsuit. See also HoUingsworth v. Cin- cinnati St. Ry. Co., 21 Ohio C. C. 536, (1901); Seymour v. Citizens' Ry. Co., 114 Mo. 266, (1892) ; Elliott V. Newport St. Ry. Co., 18 R. I. 707, 31 Atl. Rep. 694, 23 L. R. A. 208, (1893) ; Walters v. Collins Park Ry. Co., 95 Ga. 519, (1894) ; Harbison v. Metropolitan Ry. Co., 9 App. Cas. (D. C.) 60, (1896) ; Whalen v. Con- solidated Trac. Co., 61 N. J. L. 606, 40 Atl. Rep. 645, (1898); Pomaski V. Grant, 119 Mich. 675, 78 N. W. Rep. 891, (1899) ; Anderson v. City Ry. Vo., 42 Ore. 505, (1903) ; Shee- ron V. Coney Island Ry. Co., 78 App. Div. (N. Y.) 476, (1903) ; Mos- kowltz V. Brooklyn Heights Ry. Co., 89 App. Div. (N. y.) 425, (1903); North Chicago St. Ry. Co. v. Palkey, 106 111. App. 98, (1903); Hesse v. Meriden Tramway Co., 75 Conn. 571, (1905); Oliver v. Ft. Smith Light & Trac. Co., 89 Ark. 222, 116 S. W. Rep. 204, 131 Am. St. Rep. 86, (1909). In Barry v. Union Trac. Co.. 194 Pa. St. 576, (1900), the plaintiff, who stood with one foot on the lower step and the other on the platform, with bundles in both hands, was held guilty of contribu- tory negligence. The same rule has been applied to passengers riding on the side step of a stage sleigh. Spooner v. Brooklyn City R. R. Co., 54 N. T. 230, (1873). But see Spofford v. Harlow, 3 Allen 176, (1861); Spooner § 342.] THE CAEEIEE AND ITS PASSENGERS. 559 § 342. Position in car — In order to avoid the charge of con- tributory negligence, passengers are bound to seek a safe place ■within the car. But, as we have seen,^^® when no other place is available they may stand upon the platform; and with much better reason they may without fault remain standing within the car, if all the seats are taken. A passenger is not precluded from maintaining an action on account of the company's negli- gence, by the fact that, under such circumstances, he stood in the aisle,^^' or between the seats of an open car.^^^ It is an almost universal custom to take on additional passengers when only stand- ing room can be had. Where a car is stopped to receive a passen- ger, when all the seats are known by the driver or conductor to be occupied, it is an invitation to the passenger to occupy any available space within the car, which carries with it the implied assurance that the passenger will be safely carried. But the passenger should endeavor to support himself by any straps or other devices within his reach.-'*' So a passenger may without negligence occupy the driving-car of a cable railway,"" or leave his seat, while the car is moving at the ordinary rate of a horse- car, and go to the front platform to make inquiry of the driver as to his destination.^*^ V. Brooklyn City R. R. Co., 36 Barb. Beach, Contributory Negligence (3d 217, (1862); Same v. Same, 31 Barb. Ed.), sec. 295. 419, (1860), in which a different ^" Hawkins v. Front St. Cable Ry. conclusion was reached, partly Co., 3 Wash. 592, (1892). on the ground that the board upon ^"- Farrell v. Houston, West Side which the plaintiff stood was & Pavonia Ferry Ry. Co., 4 N. Y. not intended for the accommoda- Supp. 597, (1889). See also Balti- tion of passengers, but merely as more & Yorktown Turnpike Road v. a fender to protect them from colli- Leonhart, 66 Md. 70, (1866). As to sions with other vehicles. the prudence of passing to the rear ""Ante, sees. 338, 339. platform, while the car is moving, ™ Griffith v. Utica & Mohawk R. in order to alight as soon as it has R. Co., 17 N. Y. Supp. 692, (1892). stopped, see sec. 345, post, and fol- ™lia Pointe v. Middlesex R. R. lowing cases: North Chicago St. Co., 144 Mass. 18, 10 N. E. Rep. 497, Ry. Co. v. Baur, 179 111. 126, 45 L. (1887). See Beach, Contributory R. A. 108, (1899), holding that Negligence (2d Ed.), sees. 286, 295. under such circumstances, and in ""Whipple V. Philadelphia Pass, the absence of a regulation of the Ry. Co., 11 Phila. 345, (1876) ; West company, the case was for the jury; Philadelphia Pass. Ry. Co. v. Whip- Jackson v. Philadelphia Trac. Co., pie, 5 W. N. C. (Pa.) 68, (1878). See 182 Pa. St. 104, 37 Atl. Rep. 827, 560 THE LAW OF STEEBT RAILWAYS. [§§ 343, 344. § 343. Boarding or leaving' car by front platform If the passage way and rear platform are crowded with passengers, and the only mode of egress left is the front platform, an attempt to leave the car by that mode, being natural and reasonable and often almost absolutely necessary, is not a negligent act, if done with the knowledge and acquiescence of those in charge of the car and not in violation of any rule of the company.^*^ Nor is it negligence per se to board a car by the front platform if done upon the invitation of the driver or conductor, when the rear l^latform is crowded,^*^ even if the car is in motion.^** But it is negligent in law to attempt to climb over a gate, guard or fender placed at the front platform to prevent passengers from entering or leaving the car at that end.^*^ The effect upon the liability of the company of public or private regulations relating to this subject is considered elsewhere in this chapter.^** § 344. Protruding head, arm or hand from window. — The posi- tion a passenger in a street car may reasonably be allowed to assume on taking and occupying a seat is subject to no arbitrary rule. He must exercise a degree of care commensurate with the dangers to which he may be exposed, such as a man of common prudence would exercise in a like situation, having regard to all the circumstances and considering the probability that the carrier will exercise due care. The degree of care to be exercised by the passenger in a particular case is generally a question of fact for the jury.'^*'' Thus it is generally held not to be negligence in (1897), denying right of recovery & East River R. R. Co., 67 N. Y. 52, where passenger arose from her seat (1876) ; Holmes v. Allegheny Trac. in an open car, carrying a market Co., 153 Pa. St. 152, 25 Atl. Rep. 640, basket, and when warned to re- (1893); Townsend v. Blnghamton some her seat, failed to do so, and Ry. Co., 57 App. Div. (N. Y.) 234, was thrown from the car; Wither- (1901). ington V. Lynn Ry. Co., 182 Mass. But see Dan v. Seattle Ry. Co., 5 596, 66 N. E. Rep. 206, (1903), same Wash. 466, 32 Pac. Rep. 103, (1893), ruling where passenger In rising *** Stager v. Ridge Ave. Pass. Ry. to get fare, fell from an open car Co., 119 Pa. St. 70, 12 Atl. Rep. 821, while rounding an easy curve. (1888) . ^"^ Payne v. Forty-Second St. & "'Fry v. People's Pass. Ry. Co., Grand St. Perry R. R. Co., 40 N. Y. 42 Leg. Intel. 296, (1885). Super. 8, (1875). »» See sec. 356, post. '" Maher v. Central Park, North '" Where a passenger in a street §344.j THE CAEEIEE AND ITS PASSENGEES. 561 law for a passenger to ride with his arm or hand resting on the sill of an open window."^ But the act of voluntarily protruding any part of the person so far through the window and beyond the side of the car as to incur serious risk of injury is such an act of negligence as to prevent a recovery for resulting damages, either from the carrier or from another who has placed an obstruction near the track.^** car, while in the act of taking his seat, rested his hand on and par- tially over the base of an open window where it was immediately struck and injured by upright sewer planks standing in close prox- imity to the car, it was held that the question of contributory negli- gence on his part was one of fact and not of law. Dahlberg v. Minne- apolis St Ry. Co., 32 Minn. 404, (1884). 1" People's Pass. Ry. Co. v. Lau- derback, 4 Penny. (Pa.) 406, (1884), 3 Atl. Rep. 672, (1886); Francis v. New York & B. El. R. R. Co., 108 N. Y. 93, (1889); Summers v. Cres- cent City R. R. Co., 34 La. Ann. 139, (1882) ; Germantown Pass. ' Ry. Co. V. Brophy, 105 Pa. St. 38, (1884); Interurban Ry. Co. v. Hancock, 75 Ohio St. 88, 6 L. R. A. (N. S.) 997, 116 Am. St. Rep. 710, note, (1906); Cincinnati, Georgetown & Ports- mouth Ry. Co. V. Burkhardt, 10 Ohio C. C. (N. S.) 543, (1908); New Or- leans Ry. Co. V. Schneider, 60 Fed. Rep. 210, 8 C. C. A. 571, (1893); Tucker v. Buffalo Ry. Co., 53 App. Div. (N. Y.) 571, (1900), holding that even where passenger's elbow ex- tended three inches beyond the sill, he was not guilty of contributory negligence; Jones v. United Rys. Co., 99 Md. 64, (1904). As to passen- gers occupying such a position in the car of a steam railroad, see Breen v. New York Central & Hud- son R. R. R. Co., 109 N. Y. 297, 16 N. E. Rep. 60, (1888), affirming 40 36 Hun 638, (1886); Patterson's Rail- way Accident Law, p. 284. '* Said Mermudez, C. J., in Moore v. Edison Electric Illuminating Co., 43 La. Ann. 792, 9 So. Rep. 433, (1891), "It has been well said that a passenger is presumed to know the use of a seat from that of a window. The former is used to sit in, the lat- ter to admit light and air, each hav- ing its separate purpose. The seat he may occupy in any manner most comfortable to himself; the window he can enjoy, but not oc- cupy. Its use is for the benefit of all, not for the comfort of him alone who by accident has gotten nearest to it. His negligence consists in putting his limbs where they ought not to be, and exposing them to be broken, without his ability to know whether there Is or not danger ap- proaching. * * * It Is no justifi- cation * * * to say that the plaintiff, in putting his head out, had a legitimate object In view — that of ascertaining the color of the car, to know if it was the right one. It is not customary to put one's head out of a street car to find out about It. Common sense and pru- dence both dictate that, where a traveler or passenger desires in- formation on such subjects, he should apply to the driver, whose duty it is to give it. If a passen- ger has the right of putting out, besides his elbow, his head and chest, why should he not also have that of stretching out his arms, legs 562 THE LAW OF STREET EAILWAYS. [§ 345. § 345. Preparing to alight while car is in motion. — ^It is the duty of those in charge of a car to stop it at street crossings or other regular stopping places, when so. requested, to permit pas- sengers to leave the car, and those who wish to alight have the right to rely upon the performance of that duty. Although the passenger has the right to remain in his seat until the ear comes to a full stop, it is generally a mutual convenience and saving of time to both carrier and passenger for the latter to leave his seat and prepare to alight while the car is still in motion. Reason, custom and numerous decisions support the rule that, when a passenger has made known his destination and given a signal for the car to stop, it is not negligence per se while the car is slowing up, to proceed to the rear platform and wait there until he can safely alight, or to take his place on the lower step or runniag board of a car as it is slowing down for the purpose of discharging passengers.^^" In doing so, he takes the risk of all the ordinary movements of such a car properly managed; but if, while proceeding to the rear platform or while waiting there to alight, he is thrown to the ground and injured by a sudden jerk of the car caused by the negligence of the company's servants, the fact that he left his seat while the car was in motion and pre- pared to alight will not preclude a reeovery.^^^ And while it is a and even hanging out his whole tributory Negligence (3d Ed.), sec. body." See Beach, Contributory 155. Negligence (3d Ed.), sec. 296. It is ™ Omaha St. Ry. Co. v. Craig. 39 contributory negligence to put one's Neb. 601, 58 N. W. Rep.. 209, (1894); head beyond the edge of a plat- Currie v. Mendenhall, 77 Mnn. 179, form in order to witness a fire. Sias 79 N. W. Rep. 677, (1899); Mitchell V. Rochester Ry. Co., 18 App. Div. v. Elec. Trac. Co., 12 Pa. Super. Ct. (N. Y.) 506, (1897). See also Inter- 472, (1900); Baltimore Consolidated urban Ry. & Term. Co. v. Hancock, Ry. Co. v. Foreman, 94 Md. 226, 75 Ohio St. 88, 6 L. R. A. 997, (1906). 51 Atl. Rep. 83, (1901); Harris v. It is generally held that it is neg- Union Ry. Co., 69 App. Div. (N. Y.) ligence per se for a passenger on 385, (1902) ; Boone v. Oakland a steam railroad to protrude his Trans. Co., 139 Cal. 490, (1903); arm beyond the outer edge of the Sweet v. Birmingham Ry. Co., 136 window; Georgia Pacific Ry. Co. v. Ala. 166, 33 So. Rep. 886, 29 Am. & Underwood, 90 Ala. 49, 8 So. Rep. Eng. R. Cas. (N. S.) 784, (1903). 116, (1890); Pavre v. Louisville & «' Bowie v. Greenville St. Ry. Co., Nashville R. R. Co., 91 Ky. 541, 16 69 Miss. 196, 10 So. Rep. 574, (1891); S. W. Rep. 370, (1891) ; Beach, Con- Medler v. Atlantic Ave. R. R. Co., § 346.] THE CAKEIER AND ITS PASSENGEES. 563 reasonable safeguard against accidents to forbid departure from a car while it is in motion, a passenger on tbe upper floor of a horse- car, known as a double-decker, does not violate this regulation or necessarily preclude a recovery against the company for its neg- ligence, by walking, while the car is in motion, toward the rear end for the purpose of descending to the lower platform. ^^^ § 346. Parallel tracks — alig^hting or boarding from between Unless cars running on parallel tracks are so constructed or ar- ranged as to receive and discharge passengers only on the outer side, it is not as a matter of law negligence, when no rule of the company is violated, to attempt to board the car from the space between the parallel tracks.^®* But when the tracks are so near to each other as to leave a space of only about two feet between the cars as they pass, it is negligence, which contributes to the 12 \. Y. Supp. 930, (1891); Oanley V. Brooklyn City Ry. Co., 7 N. Y. Supp. 854, (1889) ; Nichols v. Sixth Ave. R. R. Co., 38 N. Y. 131, (1888) ; Gilbert v. Third Ave. R. R. Co., 54 N. Y. Super. 270, (1888) ; City & Sub- urban Ry. Co. V. Findley, 76 Ga. 311, (1888) ; West End & Atlanta St. Ry. Co. V. Mozley, 79 Ga. 463, 4 S. B. Rep. 324, (1887) ; Conley v. For- ty-Second St., Manhattan & St. Nicholas Ave. Ry. Co., 2 N. Y. Supp. 229, (1888) ; Harmon v. Washington & Georgetown R. R. Co., 17 Wash. Law Rep. 426, (1889); North Bir- mingham St. R. R. Co. V. Calder- wood, 89 Ala. 247, 7 So. Rep. 360, (1890); Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270, 14 S. W. Rep. 760, (1890); Seitz v. Dry Dock, East Broadway & Battery R. R. Co., 10 N. Y. Supp. 1, (1890); Munroe v. Third Ave. R. R. Co., 50 N. Y. Super. 114, (1884); Inclined Plane Ry. Co. v. Isaacs, 18 Ohio C. C. 177, (1899) ; Saiko v. St. Paul City Ry. Co., 67 Minn. 8, 69 N. W. Rep. 473, (1896) ; North Chicago St. Ry. Co. V. Southwlck, 66 111. App. 241, (1896); Shade v. Union Trac. Co., 20 Pa. Co. Ct. Rep. 292, (1897); Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. Rep. 349, (1898) ; Scott v. Bergen Trac. Co., 63 N. J. L. 407, 43 Atl. Rep. 1060, (1899) ; Paginini v. North Jersey St. Ry. Co., 70 N. J. L. 385, 54 Atl. Rep. 218, 29 Am. & Eng. R. Cas. (N. S.) 930, (1903) ; Philips v. St. Charles St. Ry. Co., 106 La. 592, 31 So. Rep. 135, (1901); Baltimore Consolidated Ry. V. Foreman, 94 Md. 226, 25 Am. & Eng. R. Cas. (N. S.) 182, (1902); Sims V. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 270, (1901) ; Crow V. Metropolitan St. Ry. Co., 70 App. Div. (N. Y.) 202, (1902). "^Baltimore & Yorktown Turn- pike Road V. Leonhardt, 66 Md. 70, 5 Atl. Rep. 346, (1886), the plaint- iff, while walking In a double-deck car with his back to the driver, being Injured by contact with a bridge. ""Dale V. Brooklyn City, Hunt- er's Point & Prospect Park R. R, Co., 1 Hun 146, (1874). 564 THE LAW OF STEBET RAILWAYS. [§ 346. passenger's injury in case of accident, for him to stand in the space between the tracks to await the coming of a car on one track without observing the approach of a car on the other.^^* And as a general rale a passenger who voluntarily alights in the space between parallel tracks, without looking for an approaching car, is thereby precluded from maintaining a claim for injuries re- ceived in being run down by a car coming from the opposite direction, although it is running at a rate of speed prohibited by city ordinance.^^^ "* Miller v. St. Paul City Ry. Co., 42 Minn. 454, 44 N. W. Rep. 533, (1890); Halpin v. Third Ave. R. R. Co., 40 N. Y. Super. 175, (1875); Rose V. West Philadelphia Ry. Co., 9 Sadler (Pa.) 313, 12 Atl. Rep. 78, (1888). "•Weber v. Kansas City Cable Ry. Co., 100 Mo. 194, 12 S. W. Rep. 804, 1 Am. R. R. & Corp. Rep. 436, (1889); Morgan v. Camden & At- lantic R. R. Co., 1 Mona. (Pa.) 122, 16 Atl. Rep. 353, (1889). But see Philadelphia, W. & B. R. R. Co. v. Anderson, 72 Md. 519, 20 Atl. Rep. 2, (1890); Mayo v. Boston & Maine R. R. Co., 104 Mass. 137, (1874); Mc- Quilkin v. Central Pacific R. R. Co., 64 Cal. 463, (1884); Roboatelli v. New York, N. H. & H. R. R. Co., 33 Fed. Rep. 796, (1888). As to the negli- gence of children jumping off one car in front of another on a parallel track, see Dunn v. Cass Ave. & Fairground R. R. Co., 98 Mo. 652, (1889). When one car passes another which has stopped to take on or discharge passengers, those in charge of the moving car should exercise reasonalDle care to avoid injuring persons who may be en- tering or leaving the other car. Capital Trac. Co. v. Lusby, 12 App. Cas. (D. C.) 295, (1898) ; Graven v. MoLeod, 92 Fed. Rep. 846, 35 C. C. A. 47, (1899), holding that a custom of alighting between parallel tracks, without objection on part of the company, is an implied invitation to passengers to alight between the tracks. See also Boyer v. St. Paul Ry. Co., 54 Minn. 127, (1893); Au- gusta Ry. Co. V. Glover, 92 Ga. 132, (1893) ; Atlanta Consolidated St. Ry. Co. V. Bates, 103 Ga. 333, (1897). Where a passenger alights and walks around the rear end of the car, and starts across a parallel track, the rule is that he must look and listen before crossing. Gray v. Fort Pitt Trac. Co., 198 Pa. St. 184, (1901); McCarthy v. Detroit Citiz. Ry. Co., 120 Mich. 400, (1899); Stevens v. Union Ry. Co., 75 App. Div. (N. T.) 602, (1902); Indianapolis St. Ry. Co. v. Tenner, 32 Ind. App. 311, (1904); Toledo Street Ry. Co. v. Lutter- beck, 11 Ohio C. C. 279, (1896); Cleveland Elec. Ry. Co. v. Wads- worth, 25 Ohio C. C. 376, (1903); Hinsley v. London St. Ry. Co., 16 Ontario L. Rep. 350, 7 Can. Ry. Cas. 419, (1908); Gallinger v. To- ronto Ry. Co., 8 Ontario L. Rep. 698, (1905) ; Hovden v. Seattle Elec. Co., 180 Fed. Rep. 487, (1910). In Illinois the passenger must ex- ercise ordinary care. Wallen v. North Chicago St. Ry. Co., 82 111. App. 103, (1898). A very interesting question was decided for the first time by the § 347.] THE CABEIEE AND ITS PASSENGERS. )65 §347. Duty to stop on signal. — If a signal be given to the driver or conductor to stop the car to receive or discharge a passenger, it is his duty to stop it at the next regular stopping place/^® and his practice in such cases is immaterial. ^^'^ No negligence can be imputed to the servants of the company merely because they do not bring the car to a full stop to enable a, passenger to enter, when he makes no such request and proceeds to enter while the car is still in motion. ■^^^ Nor is it the duty of the driver to stop the car at any place on the street prohibited by ordinance in order to permit a passenger to alight.^^* But if, in obedience to the request of a passenger who wishes to alight, the speed is reduced and then suddenly accelerated while the passenger is on the step, and the latter is thereby, without his fault, thrown to the ground, the exist- ence of the ordinance, while it may excuse the failure to stop, will be no justification for starting up with a sudden jerk.-^®" New Jersey Passaic Circuit Court, in Kowalslci v. Newarlc Pass. Ry. Co., 15 N. J. Law Jour. 50, (1892), in an action brought ty a passenger who, while attempting to board a slowly-moving electric car from be- tween parallel tracks, was injured by being thrown against a pole which was erected and maintained as a part of the defendant's equip- ment. The company, which had been using horse-power, was authorized by the common council to substitute electric power, provided the poles were erected in the middle of the street between the parallel tracks. That mode of construction was adopted, the poles being placed twen- ty inches from each inner rail, which left a space of only eight inches be- tween the poles and passing cars. The plaintiff claimed that the poles were erected too near the tracks, thereby exposing to danger those who attempted to enter the cars from that side. The trial court held that a company which maintained poles between its tracks and in such proximity to its cars was bound to warn persons against attempting to board the cars from the space be- tween the tracks, but that it was con- tributory negligence to make such an attempt while the car was in mo- tion, even if it were moving slowly. ^'Augusta & Summerville R. R. Co. V. Randall, 9 Ga. 304, (1889); Coller V. Frankford & Southwark R. R. Co., 9 W. N. C. (Pa.) 477, (1880); Bowie v. Greenville St. Ry. Co., 69 Miss. 196, 10 So. Rep. 574, (1891) ; West Chicago St. Ry. Co. v. Stiver, 69 111. App. 625, (1897) ; Jack- son Ry. Co. V. Lowry, 79 Miss. 431, 30 So. Rep. 634, (1901). "'Hinton v. Cream City R. R. Co., 65 Wis. 323, (1886). •^'Moyland v. Second Ave. R. R. Co., 128 N. Y. 583, 27 N. E. Rep. 977, (1891). ""Medler v. Atlantic Ave. R. R. Co., 12 N. T. Supp. 930, (1890), affirmed in 126 N. Y. 669, (1891), without report. ™Medler v. Atlantic Ave. R. R. Co., supra. 566 THE LAW OF STEEBT EAILWAYS. [§ 348. § 348. Care due to passengers while entering car ^Passen- gers should be allowed reasonable time to board the car in safety, in the exercise of ordinary care, and an opportunity t.> enter and take seats, if there be any which are vacant, or to take a safe position and seize straps furnished for passengers when standing ;^^^ and while the car may start before the passen- ger has had time to take his seat or to secure his hold on the strap, the carrier must exercise due care when thus start- ing to avoid injury by a sudden and violent movement of the car.-^*^ It is clearly negligent as a matter of law to start a car with a sudden jerk while a passenger is on the step,^^^ and it is not in all cases an excuse for a sudden acceleration of speed that the car was in motion when the passenger attempted to enter it.-'^^ i»i Dougherty v. Missouri R. R. Co., 81 Mo. 325, (1884); Central Ry. Co. V. Smltli, 74 Md. 212, 21 Atl. Rep. 706, (1891); Akeralot v. Second Ave. R. R. Co.. 131 N. Y. 559, 30 N. E. Rep. 195, (1892); Geddes v. Metropolitan R. R. Co., 103 Mass. 391, (1869) ; Steeg v. St. Paul City Ry. Co., 50 Minn. 149, 52 N. W. Rep. 393, 20 Wash. Law Rep. 541, (1892); West Chicago St. Ry. Co. V. Craig, 57 111. App. 411, (1894) ; McBride v. St. Paul City Ry. Co., 72 Minn. 291, (1898); Weiner v. Min- neapolis St. By. Co., 80 Minn. 312, (1900); Post V. Hartford St. Ry. Co., 72 Conn. 362, (1899); McCurdy V. United Trac. Co., 15 Pa. Super. Ct. 29, (1900); Berry v. Utica Belt Line Ry. Co., 76 App. Div. (N. Y.) 490, (1902); Burger v. Omaha & C. B. St. Ry. Co., 139 la. 343, 117 N. W. Rep. 35, 130 Am. St. Rep. 343, (1908). For cases of premature start where passenger has one foot on step, see Cohen v. West Chicago St. Ry. Co., 60 Fed. Rep. 698, 9 C. C. A. 223, (1894) ; Atlantic Ave. Ry. Co. V. Van Dyke, 72 Fed. Rep. 458, (1896); United Rys. Co. v. Beidelman, 95 Md. 480, (1902); Gordon v. West End St. Ry. Co., 175 Mass. 181, 55 N. E. Rep. 990, (1900) ; Myer v. Milwaukee By. Co., 116 Wis. 336, (1903). '" Dougherty v. Missouri R. B. Co., supra; Miller v. St. Paul City Ry. Co., 66 Minn. 192, 68 N. W. Rep. 862, (1896); West Chicago St. Ry. Co. V. Nash, 64 111. App. 548, (1896) ; Washington & Georgetown Ry. Co. V. Patterson, 9 App. Cas. (D. C.) 423, (1896); Dickert v. Salt Lake City Ry. Co., 20 Utah 394, 59 Pac. Rep. 95, (1899); Bertram v. Peoples Ry. Co., 154 Mo. 639, (1899); Plum v. Metropolitan Ry. Co., 91 App. Div. (N. Y.) 420, (1904). ^^ Conner v. Citizens' St. Ry. Co., 105 Ind. 62, (1885); Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232, 51 N. W. R6p. Ill, (1892); Wilson v. Fourteenth St. R. R. Co., 90 Cal. 319, 27 Pa.c. Rep. 210, (1891); Van de Venter v. Chicago City Ry. Co., 26 Fed. Rep. 32, (1885); Gilbert v. Third Ave. R. R. Co., 54 N. Y. Super. 270, (1887); Gallagher v. West End St. Ry. Co., 156 Mass. 157, 30 N. E. Rep. 480, (1892); Montreal City Pass. Ry. Co. v. Bergeron, 32 Lower Can. Jur. 255, (1888). "•Conner v. Citizens' St. Ry- Co., supra; Sahlgaard v. St. Paul § 349. J THE CAKEIER AND ITS PASSENGERS. 567 l^or is it material whether the car was started by the negligence of the driver or the carelessness of the conductor, for in either case the employer will be responsible.^*^ But if those in charge of the car exercise due care to see or hear persons who wish to take passage, the company is not liable for injuring a passenger by suddenly starting the car while he is attempting to get on, if its servants did not know that he was attempting to board it.^*® If an adult, having a young child in charge, takes a position near the track, on which a car is approaching, for the purpose of taking passage, and, while the car is moving at an ordinary and safe rate of speed, the child suddenly becomes frightened and is in- jured by running in front of the horses, the compaoiy will not be liable.-'*'^ Those who attempt to enter a car while encumbered by packages or burdens of any kind, which necessarily interfere with their movements, must be more than ordinarily careful. Although it is not negligence in a passenger to board a car while carrying his coat and dinner bucket on his arm,-'®* or a plank upon his shoulder, ■'®® he assumes greater risks, and the law re- quires of him greater caution than under ordinary circumstances. § 349. Passenger must be given opportunity to leave car in safety.- — The rule that passengers should be given reasonable time and opportunity to enter or leave the car in safety is so just that no court has ever denied it. The difficulty is in applying it to cases as they arise. It is, however, an unquestioned general rule City Ry. Co., supra; Morrison v. City Cable Ry. Co., 45 Mo. App. 528, Broadway & Seventh Ave. R. R. Co., (1891). Same rule applied to pas- 28 N. T. St. Rep. 498, 8 N. Y. Supp. sengers alighting, McDonald v. 436, (1890); Moyland v. Second Kansas City Cahle Ry. Co., 32 Mo. Ave. R. R. Co., 13 N. Y. Supp. 494, App. 70, (1888); Dean v. Third Ave. (1881); Kelly v. Consolidated Trac. Ry. Co., 34 App. Div. (N. Y.) 220, Co., 62 N. J. L. 514, 41 Atl. Rep. 686, (1898). (1898), where passenger entered ^"Wolf v. Houston, West Side & from wrong side. Pavonia Perry R. R. Co., 2 N. Y. ""McGwyny v. Broadway & Sev- Supp. 787, (1888). enth Ave. R. R. Co., 7 N. Y. Supp. "'Reddington v. Philadelphia Trac. 456, (1889); Pallez v. Brooklyn City Co., 132 Pa. St. 154, 19 Atl. Rep. 28, Ry. Co., 4 N. Y. Supp. 384, (1889). (1890). "" Lamline v. Houston, West Side ^«» Byrd v. New Orleans City & & Pavonia Ferry R. R. Co., 14 Daly Lake R. R. Co., 43 La. Ann. 822, 9 144, (1887); Meriwether v. Kansas So. Rep. 565, (1891). 568 THE LAW OF STEEET BAILWAYS. [§ 349. that if a passenger signals tlie car to stop for the purpose of leaving it, it should be stopped at the point of destination and held a suiScient time to permit him to get clear of the car, and that the company is negligent if it permits the car to start while he is in the act of alighting.^'''' This right of the passenger is ""Poulln V. Broadway & Seventh Ave. R. R. Co., 61 N. Y. 621, (1874), aftirming 34 N. Y. Super. 296, (1872); Wardlev. New Orleans City R. R. Co., 35 La. Ann. 202, (1883); Boikens v. New Orleans Ry. Co., 48 La. Ann. 831, 19 So. Rep. 737, (1896); Britton v. Street Ry. Co. of Grand Rapids, 90 Mich. 159, 51 N. W. Rep. 276, (1892); Finn v. Valley City St. & Cable Ry. Co., 86 Mich. 74, 48 N. W. Rep. 696, (1891); Wer- bowlsky V. Ft. Wayne & Elmwood Ry. Co.. 86 Mich. 236, 48 N. W. Rep. 1091, (1890); Chicago West Divi- sion Ry. Co. V. Mills, 105 111. 63, (1882) ; see same case reported in 91 111. 39, (1878) ; Lake St. Blev. Ry. Co. V. Shaw, 103 111. App. 662, (1902) ; Ganley v. Brooklyn City R. R. Co., 7 N. Y. Supp. 854, (1889); Coast Line R. R. Co. v. Boston, 83 Ga. 387, 9 S. W. Rep. 1108, (1889) ; San Antonio St. Ry. Co. v. Helm, 64 Tex. 147, (1885) ; Howell v. St. Charles St. R. R. Co., 22 La. Ann. 603, (1870) ; North Birmingham St. R. R. Co. V. Calderwood, 89 Ala. 247, 7 So. Rep. 360, (1890); Birmingham Ry. & Elec. Co. v. Wildman, 119 Ala. 547, 24 So. Rep. 548, (1898); Rathbone v. Union R. R. Co., 13 R. I. 709, (1883) ; Lax v. Forty-Second St. & Grand St. Ferry R. R. Co., 46 N. Y. Super. 448, (1880); Con- ley V. Forty-Second St., Manhattan- ville & St. Nicholas Ave. Ry. Co., 2 N. Y. Supp. 229, (1888); City & Suburban Ry. Co. v. Findley, 76 Ga. 311, (1886) ; McLaughlin v. Atlantic Ave. R. R. Co., 12 N. Y. Supp. 453, (1891) ; Munroe v. Third Ave. R. R. Co., 50 N. Y. Super. 114, (1884); Roberts v. Johnson, 58 N. Y. 613, (1874), passenger injured while alighting from a coach; Ridenhour V. Kansas City Cable Ry. Co., 102 Mo. 270, 14 S. W. Rep. 760, (1890); Seitz V. Dry Dock, East Broadway & Battery R. R. Co., 10 N. Y. Supp. 1, (1890) ; Ward v. Charleston City Ry. Co., 19 S. C. 521. 16 Am. & Bng. R. R. Cas. 356, (1883); Mul- hado V. Brooklyn City R. R. Co., 30 N. Y. 370, (1864); Bessenger v. Metropolitan St. Ry. Co., 79 App. Div. (N. Y.) 32, (1903); Piper v. Minneapolis St. Ry. Co., 52 Minn. 269, 53 N. W. Rep. 1060, (1893); Brown v. Seattle Ry. Co., 16 Wash. 465, 47 Pac. Rep. 890, (1897) ; Nich- ols V. Lynn Ry. Co., 168 Mass., 528, 47 N. E. Rep. 427, (1897) ; Citizens' St. Ry. Co. V. Huffer, 26 Ind. App. 575, (1900) ; Fenig v. North Jersey St. Ry. Co.. 64 N. J. L. 715. 46 Atl. Rep. 602, (1900) ; Ashtabula Trans. Co. v. Holmes, 67 Ohio St. 153, (1902); Indianapolis St. Ry. Co. v. Brown, 32 Ind. App. 130, (1904); Dupuis V. Montreal St. Ry. Co., Q. R. 16 K. B. 286, (1908); Jlrachek v. Milwaukee Elec. Ry. Co., 139 Wis. 505, 121 N. W. Rep. 326, 131 Am. St. Rep. 1070, (1909); Lacas v. Detroit City Ry. Co., 92 Mich. 412, 52 N. W. Rep. 745, (1892), holding that a passenger, in order to avoid the charge of negligence, is not re- quired to turn back when the signal is given to start the car; Harmon V. Washington & Georgetown E. R. Co., 7 Mackey 255, (1889). Plaintiff's right to recover is not § 349. J THE CAEEIEE AND ITS PASSENGEES. 569 subject to all reasonable regulatioos as to time, place and man- ner of stopping, whether established by law or the company itself.^'^ The length of time during which the car should be held must necessarily depend upon the circumstances of each case, among which are the age and condition of the passenger. A person who is very young or is a cripple or otherwise feeble or infirm is entitled to consiideration on that account. ^'^^ It is the duty of those in charge of the car, when signaled to stop for the purpose of discharging passengers, to ascertain who and how many of the passengers intend to alight at that place, to wait a sufficient length of time to allow them to alight in safety by the exercise of reasonable diligence, and, in any event, to see and know that no passenger is in the act of alighting or is otherwise in a position which would be rendered perilous by the motion of the car when it is again put in motion, and if they fail to perform their duty in these respects and an injury results their employer is liable. Their duty is not discharged by merely stopping a reasonable time for passengers to get off."^^* The duty to give a passenger an opportunity to alight in safety applies to those who impaired by the fact that she stepped Selby v. Detroit Ry. Co., 122 Mich, off the car with her back to the front 311, (1899) ; West Chicago St. Ry. of the car. Rouser v. Washington & Co. v. Waniata, 68 III. App. 481 Georgetown Ry. Co., 13 App. Cas. (1896) ; Smith v. Kingston City Ry. (D. C.) 320, (1898); Morrison v. Co., 55 App. Div. (N. Y.) 143, Charlotte Elec. Ry. Co., 123 N. C. (1900); a woman should be given 414, 31 S. E. Rep. 720, (1898). It time to clear her skirts of any ob- is not negligence per se for a pas- struction on the platform; Machen senger to fail to take hold of the v. Pittsburg Ry. Co., 13 Pa. Super, hand rail in alighting from a street Ct. 642, (1900) ; Patterson v. In- car; Crump v. Davis, 88 Ind. App. clined Ry. Co., 12 Ohio C. C. 274, 88, (1904); Cawfield v. Asheville St. (1896). See sec. 351, post. Ry. C^., Ill N. C. 597, 16 S. E. Rep. ™ Highland Ave. & Belt R. R. 703, (1892); Martin v. Second Ave. Co. v. Burt, 92 Ala. 291, 9 So. Rep. Ry. Co., 3 App. Div. (N. Y.) 448, 410, (1891); Britton v. Grand Rap- (1896). ids St. Ry. Co., 90 Mich. 159, (1892) ; ™ Colt v. Sixth Ave. R. R. Co., 33 Metropolitan Ry. Co. v. Jones, 1 N. Y. Super. 189, (1871), affirmed App. Cas. (D. C.) 200, (1893); An- in 49 N. Y. 671, (1872); United Rys. derson v. Citizens St. Ry. Co., 12 Ind. Co. V. Woodbridge, 97 Md. 629, App. 194, (1894); Norton v. Third (1903). Ave. Ry. Co., 26 App. Div. (N. Y.) ™ Colt V. Sixth Ave. R. R. Co., 60, (1897) ; Jacobs v. West End St. supra; Ridenhour v. Kansas City Ry. Co., 178 Mass. 110, 59 N. E. Rep. Cable Ry. Co., 102 Mo. 270, (1890); 639, (1901). 570 THE LAW OF STREET EAILWAYS. [§ 349. enter the car merely to place some one else upon it, and are in the act of leaving when it is suddenly started.-^''* So where a car has reached its destinajtion and is about to start on its return trip, it should not proceed until it has been ascertained that all passen- gers have left it.^'^® While the passenger is in the act of alight- ing, it is the duty of the carrier not only to refrain from doing any act which would be likely to cause the car to move, but also to take reasonable precautions to prevent it from moving,^™ and the same rule is applied to the act of a driver in suddenly in- creasing the speed of the car while a passenger, with the driver'a knowledge, is attempting to aiight while the car is in motion. ^'^^ So where one passenger has signaled the car to stop, it cannot be held as a matter of law that another passenger is negligent who attempts to alight at the same time and without notifying the driver or conductor.-^''® If a passenger attempts to alight "•Pott V. Forty-Second St. & Grand St. Ferry R. R. Co., 56 N. Y. Super. 151, (1888); Coast Line R. R. Co. V. Boston, 83 Ga. 387, 9 S. W. Rep. 1108, (1889); Houston v. Gate City St. R. R. Co., 89 Ga. 272, 15 S. E. Rep. 323, (1892). This duty applies also to one who gets on a wrong car. Joyce v. St. Paul City Ry. Co., 70 Minn. 339, 73 N. W. Rep. 158, (1897). ""But it Is contributory negli- gence on the part of a passenger under such circumstances to delay his attempt to alight until the car is about to start on its return trip and then proceed to get off, with- out notifying the conductor or tak- ing necessary precautions to pre- vent being thrown off by the mo- tion of the car. Dickson v. Broad- way & Seventh Ave. R. R. Co., 33 N. Y. Super. 330, (1871). See also Spaulding v. Quincy St. Ry. Co., 184 Mass. 470, (1904). "" Finn v. Valley City St. & Cable Ry. Co., 86 Mich. 74, 48 N. W. Rep. 696, (1891), In which It appeared that, while the plaintiff was alight- ing from a coach attached to a grip- car, the coach was disconnected, and, moving by its own momentum threw the plaintiff to the ground; Werbowlsky v. Ft. Wayne & Elm- wood Ry. Co., 86 Mich. 236, 48 N. W. Rep. 1091, (1891). See also To- bin V. Omnibus Cable Co., 58 Am. & Eng. R. Cas. 223, (Cal. 1893). "'Chicago City Ry. Co. v. Mum- ford, 97 111. 560, (1891) ; Connor v. Citizens' St. Ry. Co., 146 Ind. 430, (1896). "'Rathbone v. Union R. R. Co., 13 R. I. 709, (1883). If a car is stopped for any cause at the place where passengers are in the habit of getting off, a pas- senger will have the right to alight without making any request or ob- taining any permission; and if the driver of the car knows, or by the exercise of due care could know, that a passenger is getting off, it is negligence to start while he is in the act of alighting. Chicago West Division Ry. Co. v. Mills, 105 111. 63, (1882). But those in charge of the car are not bound to anticipate § 350.] THE CAEEIEB AND ITS PASSENGERS. 571 without notice of suck intention to the carrier's servants, and without their knowledge although they are duly watchful, he does so at his own risk;^''® and it has been held that they are not negligent in starting the car while a passenger is leaving by the front platform after he had been given suiScient time to alight. ■^**' § 350. Careless starting and stopping of car further considered. — The mere fact that a car gives a sudden movement when start- ing or stopping, is entirely consistent with the supposition that it was managed in a careful and prudent manner and does not raise a presumption of negligence. '^®'' It is not per se negligence on the part of a driver to loosen his brake and thereby acceleratt the speed of the car while a passenger is in the act of getting on. the act of a passenger in attempt- ing to alight when the car has been stopped at a place where it is not customary to receive or discharge passengers. Chicago West Division Ry. Co. v. Mills, 91 111. 39, (1878). Where a car stopped in the middle of block for repairs, and a passen- ger attempted to alight, it was held to be negligent to start car when conductor saw passenger in a posi- tion of danger. Beringer v. Du- buque St. Ry. Co., 118 la. 134, 91 N. W. Rep. 931, 29 Am. & Eng. R. Cas. (N. S.) 872, (1902). See also Asbury v. Charlotte Blec. Ry. Co., 125 N. C. 568, 34 S. B. Rep. 654, (1899) ; Bloomington Ry. Co. v. Zim- merman, 101 111. App. 184, (1901); United Rys. Co. v. Hertel, 97 Md. 382, (1903); Dressier v. Citizens' St. Ry. Co., 19 Ind. App. 383, (1897) ; Cobb V. Lindell Ry. Co., 149 Mo. 135, (1898). "' Nichols V. Middlesex R. R. Co., 106 Mass. 463, (1871) ; McDonald v. Kansas City Cable Ry. Co., 32 Mo. App. 70, (1888). But see Chicago City Ry. Co. v. Mumford, 97 111. 560, (1881). See also Gilbert v. West End St. Ry. Co., 160 Mass. 403, 36 N. E. Rep. 60, (1894); Omaha & Council Bluffs Ry. Co. v. Levinston, 49 Neb. 17, 67 N. W. Rep. 887, (1896) ; Ashtabula Rapid Tran- sit Co. V. Holmes, 67 Ohio St. 153, (1902). ™ Brown v. Congress & Baker St. Ry. Co., 49 Mich. 153, (1882). "A party wishing to alight must not loiter," per Putnam, J., in Losee v. Watervliet Turnpike Co., 18 N. Y. Supp. 297, 63 Hun 404, (1892). ''^A car loaded with passengers must necessarily require a strong pull of the horses to overcome the resisting inertia, and such must be a thing of sudden occurrence and unavoidable. Per Finch, J., in Hayes v. Forty-Second St. & Grand St. Ferry R. R. Co., 97 N. Y. 259, (1884). See Bradley v. Ft. Wayne Ry. Co., 94 Mich. 35, 53 N. W. Rep. 915, (1892); Chicago City Ry. Co. v. Dinsmore, 162 111. 658, 44 N. E. Rep. 887, (1896); Hoffman v. Third Ave. Ry. Co., 45 App. Div. (N. Y.) 586, (1899) ; Timms v. Old Colony St. Ry. Co., 183 Mass. 193, (1903); Cleveland City Ry. Co. v. Osborn, 66 Ohio St. 45, (1902), hold- ing that where a car was stopped suddenly to avoid a collision it was damnum absque injuria. 572 THE LAW OF STREET EAILWAYS. [§ 350. if he attempts to board while the car is in motion.-'*^ Nor is it laiiy evidence of negligence on his part thai; he whips his team when about to start a car full of passengers, nnless there appears to be something unusual in the manner of whipping. ^^^ The sud- den starting of a car to avoid a collision with a runawa.y horse and carriage, whereby a passenger riding on the rear platform is thrown to the ground and injured by the runaway team, is not the proximate cause of the injury, and the passenger cannot re- cover even if the car-driver was guilty of negligence.''** But where a street car was going down a grade at the rate of seven miles an hour and the driver suddenly and without reason applied the brake with such force as to give the car a jerk which hurled plaintiff off the platform, the testimony was held to present a question of negligence for the jury.-'*^ Although, as a general rule, the company is not liable for injuries caused by the start- ing of its cars, nevertheless it may be liable where the method is unusual and dangerous to passengers.-'** The existence of an ordinance prohibitiag street cars from stopping at the near cor- ner of street crossings does not excuse the negligence of the driver in suddenly starting a car which had, apparently in response to a signal, nearly come to a stop at such prohibited point, and if a passenger, who had gone to the rear step for the purpose of alight- ing, is thrown to the ground by the sudden movement of the car, the company will be held liable for the injury.-'*' When a passen- "^ Reddlngton v. Philadelphia driver of the car asked the aid of a Trac. Co., 132 Pa. St. 154, (1890). driver of a team of eight mules with "^Rochat V. North Hudson Ry. -which to start his car, which was Co., 49 N. J. L. 445, (1887). done -with a sudden jerk, throwing "* South S'ide Pass. Ry. Co. v. the woman backward and injuring Trlch, 117 Pa. St. 390, (1887). her spine. The question of the 18B Murray v. Brooklyn City R. R. company's negligence -was held to Jo., 27 N. Y. St. Rep. 280, 7 N. Y. be one of fact for the jury. See also Supp. 900, (1889). Chicago City Ry. Co. v. Morse, 98 "» Continental Pass. Ry. Co. v. HI. App. 662, (1901); Goodklnd v. Swain, 13 W. N. C. (Pa.) 41, (1883), Metropolitan St. Ry. Co.. 93 App. in which it appeared that a woman Div. (N. Y.) 153, (1904). As to neg- entered a crowded car, and, being ligence in starting a dummy engine, unable to find a seat or a strap by see Spearman v. California St. R. R- which to hold on, was obliged to Co., 57 Cal. 432, (1881). stand in the aisle without support, "' Medler v. Atlantic Ave. R. R- and, the car coming to a stop, the Co., 12 N. Y. Supp. 930, (1891). § 351.J THE CAEEIEE AND ITS PASSENGERS. 573 ger falls from a street car when, in full motion, in front of the wheels, and the carrier's servants know that he is off and holding to the iron railing to save himself from being run over, it is cul- pable negligence if they do not stop the car and attempt to save him from injury, although he may have fallen without any negli- gence on their part.^®^ § 351. Permitting^ passengers to ride on platform It is the duty of the carrier to provide suitable vehicles for the trans- portation of its passengers and not suffer them to occupy unsafe places thereon. But although this duty is neglected and the passenger is injured, he cannot recover damages if his own neg- lect of the duty of self-presen'-ation contributed to the injury. This is predicated only of those who have the capacity to under- stand their duty and the ability to perform it. A child not of the age of discretion to understand the danger of riding upon the platform of a street car cannot be charged with negligence in so doing. While the company would not be liable to a person of mature age and discretion who voluntarily occupies such a posi- tion on the car, yet, in the case of a child lacking such discretion and to whom negligence cannot be imputed, it would be the duty of the agents or employes of the carrier to warn him of his danger, and, if necessary, not to stop with the warning but to compel him to occupy a proper place in the car,-'^® especially if he is not in charge of some person of sufficient age and discre- tion to care for him.^^" Accordingly it has been held negligence on the part of a driver to allow a child of the age of five with another eleven years old,^®^ or a boy nine years of age,^®^ <,o ride on the platform; and gross negligence to allow a child of ten '^Chicago West Division Ry. Co. Chester Pass. Ry. Co. v. Caldwell, V. Hughes, erill. 170, (1873). 74 Pa. St. 421, (1873); Levin v. '"'Blast Saginaw City Ry. Co. v. Second Ave. Trac. Co., 194 Pa. St. Bohn, 27 Mich. 503, (1873); Wynn v. 1.5fi, 45 Atl. Rep. 134, (1899). City and Suburban Ry. Co., 91 Ga. "^ Pittsburgh, Allegheny & Man- 344, 17 S. E. Rep. 649, (1893) ; Jack- Chester Pass. Ry. Co. v. Caldwell, son V. St. Paul City Ry. Co., 74 supra. Minn. 48, 76 N. W. Rep. 956, "^Metropolitan St. Ry. Co. v. (1898). Moore, 83 Ga. 453, (1889). See also ""Pittsburgh, Allegheny & Man- sec. 326, ante, and cases there cited. 574: THE LAW OF STKEET EAILWAYS. [§ 352. years to ride on the step of the front platform.^®* But it has been decided that the defendant was entitled to a compulsory non-suit, on the ground of contributory negligence, where a boy thirteen years of age, a passenger on a crowded car, was injured while sitting on the fi^ont platform with his knees projecting several inches beyond the side of the car.''^®* If a passenger who boards a car is obviously incompetent, either from extreme youth or other cause, to exercise any proper judgment and discretion for his own safety, the conductor ought to exercise the highest degree of care and vigilance consistent with the performance of his ordinary duties, to shield him from danger. But he cannot be expected to maintain a constant watch upon a child to see whether he makes his way among other passengers to the front platform.^^^ While it is not negligence per se to permit an adult passenger to stand on the platform, nevertheless where passengers are permitted to occupy that position when there is ample room in the car and thereby prevent passengers, who wish to alight, availing them- selves of the security and protection which they would otherwise enjoy, in an action for injuries received by a passenger while leaving the car the alleged negligence of the defendant in not maintaining a clear passage-way is fairly a question for the jury.^»« § 352. Permitting passengers to leave by front platform When the car has been stopped for the purpose of discharging passengers, it is neither negligence on the part of the company "» Saare v. Union Ry. Co., 20 Mo. West Philadelphia Pass. Ry. Co. v. App. 211, (1886). Gallagher, 108 Pa. St. 524, (1885). '"Butler V. Pittsburgh & Blr- '"^Sanford v. HestonvlUe, Man- mlngham Trac. Co., 139 Pa. St. tua & Palrmount R. R. Co., 136 Pa. 195, (1891). But it was held by the St. 84, 20 Atl. Rep. 799, (1891). same court that the question of the "' Neslle v. Second & Third Sts. negligence of the company In per- Pass. Ry. Co., 113 Pa. St. 300, mlttlng a boy under fourteen years (1886). See Lake v. Cincinnati In- of age to ride on the step of the clined Plane Ry. Co., 13 Ohio C. C. front platform of a crowded car 494, (1896). going down grade at an average It is not per se negligence to per- rate of speed and with a rocking mit a passenger to ride on the side motion, was a question which might step of an open summer car on the fairly he submitted to the Jury, side next to a closed car passing on §§ 353, 354.J THE CAKEIEE AND ITS PASSENGEES. 575 to permit adult passengers to leave by the front platform when they cannot safely or conveniently reach the rear end of the car, nor is it under such circumstances negligent for them to alight from the front end of the car.^®' Children should be prevented from entering or leaving the car by the front platform, unless ia rare and exceptional cases.''®* And, in an action for damages so sustained, the fact that the front platform was not enclosed by a fender, may, with other circumstances, be considered in determining whether there was negligence in leaving the front door open when the car was filled with passengers.^®® A different rule applies to pay-as-you-enter cars. § 353. Receiving and discLar^ng passengers while car is in motion. — It is not per se negligence to receive passengers while the car is moving slowly.^"® A city may by ordinance impose a penalty for permitting women or children to enter or leave a street car while in motion, but the existence of such a regulation is not competent evidence against a defendant on the trial of an action for failure to discharge its common law duty to such passenger s.^®^ § 354. Regulations as to the place for stopping cars. — ISTon- residents as well as residents of a municipality must be held to know the rule as to the place of stopping street cars prescribed by an ordinance of the city.^®^ But if a car stops at a point on a parallel track. Craighead v. to the legal effect of omitting to Brooklyn City R. R. Co., 123 N. Y. enclose or guard the front platform. 391, 25 N. B. Rep. 387, (1890). =■» Morrison v. Broadway & Sev- '" Payne v. Forty-Second St. & enth Ave. R. R. Co., 28 N. Y. St. Grand St. Ferry R. R. Co., 40 N. Rep. 498, 8 N. Y. Supp. 436, (1890); Y. Super. 8, (1875). See also Oris- sec. 336, ante. sey V. Hestonville, Mantua & Fair- ™'East Cleveland R. R. Co. v. mount Pass. Ry. Co., 75 Pa. St. 83, Rosecrans, 24 W. L. B. 220, (1890). (1874). A city ordinance providing that ™ Muehlhausen v. St. Louis R. R. conductors shall not allow women Co., 91 Mo. 332, 1 Ry. & Corp. L. or children to leave or enter street J. 187, (1886). cars while in motion was held valid "'Philadelphia City Pass. Ry. Co. by the Kansas City Court of Ap- T. Hassard, 75 Pa. St. 367, (1874); peals in Johnson v. St. Joseph Ry. Sowash V. Consolidated Trac. Co., L. H. & P. Co., 128 S. "W. Rep. 243, 188 Pa. St. 618, 41 Atl. Rep. 618, (Mo. 1910). (1898). See also sec. 333, ante, as ""Ante, sees. 228, 350. 576 THE XAW OF STREET RAILWAYS. [§ 355. the street other than a regular stopping-place, in apparent re^ sponse to a signal from a passenger, who thereupon attempts to alight and is injured by a sudden movement of the car, the question of his contributory negligence is one of fact for the jury.203 § 355. Permitting car, platform or steps to became crowded. The overcrowding of cars is such a common practice, and one so difficult to prevent in the absence of strictly enforced public regu- lations, that, except in extreme cases, it is not considered culpable negligence on the part of the company to permit it; nor, on the other hand, is it negligence per se to take passage on a car already crowded. But a passenger who voluntarily takes his position on the platform or steps of a crowded car assumes the risk of all dangers arising from the jostling of the passengers against each other. ^"^ Ordinarily, if an accident occurs under such circum- stances, the negligence of the company would be offset by that of the passenger.^"® But undertaking to carry more passengers than can safely sit or stand within the cars and upon the platform and steps may, under some circumstances, authorize the submis- sion to the jury of the question of the carrier's negligence in per- mitting its cars to be overloaded.^"^ The passenger on a crowded =»3 North Birmingham St. R. R. clined Ry. Co. v. Reul, 4 Ohio C. C. Co. V. Calderwood, 89 Ala. 247, 7 362, (1890) ; Randall v. Frankford & So. Rep. 360, (1890). Southwark Pass. Ry. Co., 8 Pa. Co. The fact that a car was stopped Ct. Rep. 277, (1890); Chicago City in violation of an ordinance, on the Ry. Co. v. Considine, 50 111. App. near side of a street, does not 471, (1893). throw upon the passenger the duty '"'Lehr v. Steinway & Hunter's of waiting until the far side is Point R. R. Co., 118 N. Y. 556, 23 reached. He may regard it as an N. B. Rep. 889, (1890), approving invitation to alight. West Chicago and distinguishing Putnam v. St. Ry. Co. V. Manning, 170 111. 417, Seventh Ave. R. R. Co., 55 N. Y. 48 N. E. Rep. 958, 9 Am. & Eng. R. 108, (1873). Whether one is guilty Cas. (N. S.) 364, (1897) ; North of contributory negligence in at- Chicago St. Ry. Co. v. Eldridge, tempting to board a crowded car is 151 111. 542, 38 N. B. Rep. 246, a question for the jury. Citizens' St. (1894); West Chicago St. Ry. Co. Ry. Co. v. Jolley, 161 Ind. 80, V. Buckley, 102 111. App. 314, (1902) ; (1903). Pryor v. Metropolitan St. Ry. Co., ^'"Lehr v. Steinway & Hunter's 85 Mo. App. 367, (1900). Point R. R. Co., supra; Neslie v. »»* Mt. Adams & Eden Park In- Second & Third Sts. Pass. Ry. Co., § 356.] THE CAEEIEE AND ITS PASSENGERS. 577 car does not assume risks from injuries caused by the negligent management of the cars in other respects. Therefore, if the com- pany permits its cars to become so crowded that passengers are compelled to ride on the foot-boards, and attempts to run them in that condition by other cars which cannot be passed without a col- lision and injury to passengers, it is guilty of culpable negligence, for the result of which the risks assumed by the passengers will constitute no defense.^"^ Eiding in such a position will not pre- clude a recovery for negligence in injuring a passenger who is thrown from the car by the careless us© of the brake-handle or the swaying motion of the car running at great speed over a de- fective track,^"^ nor will the wrongful act of passengers, who throw another to the ground and injure him while rushing past to leave the car with reckless haste, relieve the company from the conse- quences of overcrowding its car and failing to control its passen- gers.^"* § 356. Regulations as to entering, occupying or leaving car.^ — ■ A regulation prohibiting passengers from getting on or off the front end of the car, and requiring them to enter and descend by the rear platform only, is a reasonable regulation, and the violation of such a rule, when not compelled by some existing necessity, is conclusive evidence of negligence on the part of the passenger, which will defeat an action against the carrier, not- withstanding its servants may have been negligent. ^'^'' So it is held to be a reasonable safeguard against accidents to forbid departure from a car while it is in motion.^^^ The fact that such a rule was posted inside of all the cars and legible to all who 113 Pa. St. 300, 6 Atl. Rep. 72, (1867); Merwin v. Manhattan Ry. (1886). Co., 48 Hun 608, (1888); Lehr v. ""Topeka City Ry. Co. v. Higgs, Steinway & Hunter's Point R. R. 38 Kan. 375, (1888). Co., supra; Baldwin v. Fair Haven '"Chicago City Ry. Co. v. Young, Ry. Co., 68 Conn. 567, 37 Atl. Rep. 62 111. 238, (1871). See also High- 418, (1897); Muhlhause v. Monon- land Ave. & Belt. R. R. Co. v. Dono- gahela St. Ry. Co., 201 Pa. St. 237, van, 94 Ala. 299, 10 So. Rep. 139, (1902). (1891) ; West Chicago St. Ry. Co. v. "^^ Baltimore City Pass. Ry. Co. v. Johnson, 180 111. 285, 54 N. B. Rep. Wilkinson, 30 Md. 224, (1868). 334, (1899). ii" Baltimore & Yorktown Tum- ™ Sheridan v. Brooklyn City & pike Road v. Leonhardt, 66 Md. 70, Newtown R. R. Co., 36 N. Y. 39, (1886). 37 5*r8 THJ! LAW OP STEEET EAILWATS. [§ 357. entered tliein, and that the plaintiff had often previously ridden on the cars of that line, is evidence from which it may be inferred that he had notice of its existence.*^* The reasonableness of a rule which affects the conduct of passengers is usually regarded as a question of fact for the jury, and not a question of law to be decided by the court.^^* But the failure of a passenger to observe the reasonable regulations of the carrier as to the man- ner of entering, occupying and leaving the cars presents a legal question for the court to decide.^^* A printed notice posted con- spicuously, forbidding passengers to stand upon, or to get on or off at, the front platform, or to board or leave the car when in motion, and declaring that the company would not be responsible for any accident happening thereby, will not preclude a recovery for injury to a child, although riding free, who is permitted to violate the rule and is too young to appreciate the dangers of his situation, and uses as much care in attempting to leave the car by the front platform while in motion as could be expected of a person of his age.*^° § 357. Regulations as to riding on front platform A carrier of passengers may make all reasonable rules for their safety and comfort f^^ and, as riding on the front platform is obviously attended with more danger to the passenger than occupying a place within the car,^" and interferes with its management and with the movements of those who wish to enter or leave it,^** a rule prohibiting the practice is a reasonable regulation. A placard posted in the car, notifying all persons that they are forbidden to be on the front platform, and that the company will not be responsible for their safety there, is admissible in evidence, »" Baltimore City Pass. Ry. Co. v. ='* Baltimore City Pass. Ry. Co. v. Wilkinson, supra. Wilkinson, supra. ™Redfield on Railways (6th Ed.), "' Brennan v. Fairhaven & West- p. 83; Patterson, Railway Accident ville R. R. Co., 45 Uonn. 284, (1877). Law, p. 250; Day v. Owen, 5 Mich. ""Ante, sec. 356. 520, (1858); Ayres v. Morris & Us- '"Ante, sec. 338. sex Ry. Co., 5 Dutcher 393, (1862); =» Neslie v. Second & Third Sts. Bass V. Chicago & N. W. Ry. Co., Pass. Ry. Co., 113 Pa. St. 300, 6 Atl. 36 Wis. 450, (1874). Contra, 8outh Rep. 72, (1886); Ft. Clark St. Ry. Florida R. R. Co. v. Rhodes, 25 Fla. Co. v. Ebough, 49 111. App. 582, 40, 6 So. Rep. 633. (1889). (1893); McMillan v. Federal St. Ry. § 358.] THE CAEEIBE AND ITS PASSENGBE3. 679 even tliongh it is not shown that the plaintiff had any knowl- edge of the rule.^^® § 358. Packages carried by passengers and regulations con- cerning them — It is customary for passengers in street cars to carry with them hand-bags, baskets, umbrellas and other small parcels, and ordinarily the fact of permitting the practice is not evidence of the negligence or inattention of the conductor or other servants in charge of the car. It is doubtful whether the company would have a right to exclude small parcels when in the immediate charge of passengers, although it might become the duty of conductors to cause their removal upon the complaint of inconvenience, annoyance or serious obstruction to other pas- sengers.^^" But the carrier unquestionably has the right to make reasonable regulations as to the size and character of the pack- ages which may be carried in its cars, and may impose an extra charge for parcels exceeding a designated size.^^^ So the com- pany may prohibit the carrying of baskets or parcels unaccom- panied by a passenger, and if it negligently fails to enforce the Co., 172 Pa. St. 523, 33 Atl. Rep. 560, (189G). "" O'Neill V. Lynn & Boston R. R. Co., 155 Mass. 371, 29 N. E. Rep. 630, (1892). citing with approval Com- monwealth v. Power, 7 Mete. 596, (1844); O'Brien v. Boston & Wor- cester R. R. Co., 15 Gray 20, (1860); Wills V. Lynn & Boston R. R. Co., 129 Mass. 351, (1880); Cheney v. Boston & Maine R. R. Co., 11 Mete. 121, 123, (1846), the last case hold- ing that It is only when it is at- tempted to charge a person with a liability created by a notice or rule, that it is necessary to bring home knowledge of it to him; Baltimore City Pass. Ry. Co. v. Wilkinson, 30 Md. 224, (1868). •°°The mere presence of a basket or other parcel In charge of a pas- senger, over which another passen- ger stumbles while entering or leav- ing the car. Is not per se negligence of the company; and one who at- tempts to pass over such an obstruc- tion assumes the risk and danger of so doing. Van Winkle v. Brooklyn City R. R. Co., 46 Hun 564, (1887). See Stimson v. Milwaukee, L. S. & W. Ry. Co., 75 Wis. 381, 44 N. W. Rep. 748, (1890). '^ In a case in which the rule of the company Imposed an extra charge on each package, "too large to be carried on the lap of the pas- senger without Incommoding oth- ers," and a passenger refused to pay an extra charge for a package of picture-frames about two feet In length and twenty Inches wide, and was forcibly ejected from the car. It was held that whether the package came within the rule was a question of fact for the jury; and that the determination of the conductor with reference thereto was not conclu- sive. Morris v. Atlantic Ave. R. R, 580 THE LAW OF STEEET EAILWAYS. [§ 359. rule, in consequence of which a passenger without fault is injured, it will be liable; but a person who participates in violating the rule, and is thereby injured, cannot recover, especially if it be shown that he had knowledge of the regulation.^^^ § 359. Kate of speed — regnilations limiting same There is no generally accepted rule which determines the legal effect, as evidence, of the violation of a statute or ordinance limiting the rate of speed of steam cara or street cars in the streets of munic- ipal corporations. It would be a vain task to attempt to reconcile the numerous decisions upon this question. The views expressed by the courts of different states are irreconcilable, and in many instances the rulings made by the same courts are so inconsistent as to lead to hopeless confusion. Attempts have been made to classify and harmonize them, but without success; for, although the conclusions reached have sometimes been positive and unqual- ified, they are not sustained by the decisions cited in their support. Several courts of eminent respectability have decided that a vio- lation of such a regulation is conclusive evidence of negligence,^^' while others of equal rank and learning have decided that it is not.^^* It is said that the violation of such a law or ordinance, if left without explanation or excuse, is conclusive proof »f negli- Co., 116 N. Y. 552, (1889). See also gence, Vol. 1, p. 506. It is held in Dowd V. Albany Ry. Co., 47 App. Connecticut that the violation by Div. (N. Y.) 202 (1900). ^^^ plaintifE of an ordinance regu- '^ Baltimore City Pass. Ry. Co. v. l^t'^iS speed Is a bar to his right of Wilkinson, 30 Md. 224, (1868). "» Llddy v. St. Louis R. R. Co., 40 recovery for the negligence of an- other. Broschart v. Tuttle, 59 Conn. 1, 11 L. R. A. 333, (1890). Mo. 506, (1867); Keim v. Union Ry. ^_^^^^ ^ ^^^^^^^ ^^^ ^^^^_ ^35_ & Transit Co., 90 Mo. 314, 2 S. W. ^875); Hanlon v. South Boston R. Rep. 427, (1896); Weber v. Kansas r. cq.. 129 Mass. 310. (1880); Steele City Cable Ry. Co., 100 Mo. 194, y. Burkhardt, 104 Mass. 59, 6 Am. (1889) ; Baltimore City Pass. Ry. Co. Rep. 191, (1870) ; McGrath v. New V. McDonnell, 43 Md. 534, (1875) ; York Central & H. R. R. R. Co., 63 Atlanta & West Point R. R. Co. v. N. Y. 522, (1876); Wright v. Maiden Wyly, 65 Ga. 120, (1880); Jetter v. & Melrose R. R. Co., 4 Allen 283, New York & Harlem R, R. Co., 2 (1862); Grand Trunk Ry. Co. v. Ives, Abbott 458, (1865); Correll v. B. C. 144 U. S. 408, 418, (1891), In which R. & M. R. R. Co., 38 la. 120, (1874). Mr. Justice Lamar notices the two See also Shearman and Redfleld on lines of decisions and cites cases in Negligence (5th Ed.), sec. 467, citing support of each; Indianapolis & St several cases; Thompson on NegH- Louis R. R. Co. v. Peyton, 76 111. § 359.] THE CAEEIEB AND ITS PASSENGERS. 581 gence, but it may afford no proof at all that this negligence "was the cause of the plaintiff's injury. ^^® This statement is hardly satisfactory, for a fact which is capable of explanation or excuse is not conclusive, but merely prima facie evidence of the main fact which it was introduced to establish. Again, the rule stated in such broad and unqualified terms as that used by some of the courts would preclude a party from proving that the regulation was unreasonable. While it is true that an exercise of the police power by statute or ordinance, when not plainly void on its face, is presumed to be reasonable until the contrary is shown,^^^ its validity may always be questioned by the party against whom it is sought to be enforced, ^o rule of evidence can be founded on just principles which would deny to a party the right, first, to challenge the validity of a police regulation to which it did not assent, and, second, to prove a valid excuse for disobeying it. Although a valid statute or ordinance limiting the rate of speed is admissible in evidence, its existence and violation should first be pleaded, and an averment that the car was running at a high rate of speed, contrary to law or to the provisions of a statute or ordinance, is not an allegation of the existence of the ordinance. ^^^ Independently of any ordinance or statute affecting the rights of the parties, it is negligence on the part of the company to propel its ears at such a high rate of speed as to endanger passengers who exercise due care to avoid injury.^^* And, in order to deter- mine the cause of a collision and generally for the purpose of reflecting upon the question of the defendant's negligence, it is proper to prove and consider the rate of speed at which its car was traveling, unless the issue is so framed as to exclude such testimony.^^® 341, (1875). See also Elliott on Co., 10 Ohio C. C. 635, (1895) ; Rock- Roads and Streets, (2d Ed.), sec. ford v. Blake, 173 111. 354, 50 N. E. 812. Rep. 1070, (1898). "'=> Shearman & Redfleld on Negli- ""^ O'Connell v. St. Louis Cable & gence (5th Ed.), sec. 467. Western Ry. Co., 106 Mo. 482, 11 ■^Ante, sec. 224. S. W. Rep. 497, (1891). =" Chicago West Division Ry. Co. '" Hill v. Ninth Ave. R. R. Co., 1U9 V. Klauber, 9 111. App. 613, (1881); N. Y. 239, 16 N. B. Rep. 61, (1888); Blanchard v. Michigan Southern R. as for instance, to prove the vio- R. Co., 126 111. 416, 425, (1888). See lence of plaintiff's fall, Gillespie v. Dlrich V. Toledo Consol. Street Ry. Coney Island & Brooklyn R. R. Co., 682 THE LAW OF STEEET EAILWATS. [§ 360, § 360. Collisions witli cars and othei vehicles and objects near track. — It is negligence on the part of a company to place its track so near to a telegraph pole or other obstruction which it is necessary for its cars to pass, that its passengers, in getting on or off the cars, or while upon them, are in danger of being injured by contact with the obstruction, although in some cases it may be proper to submit the question of the defendant com- pany's negligence to the jury.^*" But if a passenger, while board- ing a moving car, is knocked off the platform by a telegraph pole standing near the line of the track and is thereby injured, he can- not recover if, when he stepped on the car, he knew the location of the pole and its proximity to the track, for under such circum- stances he assumes the risk of any injury he may receive.^^^ The driver, notwithstanding his car has a superior right of way, should stop or slacken his speed to avoid imminent danger from collision with vehicles upon the street; and, notwithstanding the negli- gence of the driver of the private vehicle, the carrier will be liable to a passenger where, under such circumstances, its driver failed to exercise proper care.^^^ The degree of caution or vigi- lance to be exercised in avoiding collisions with other vehicles is greater when the street ear is an open one with passengers sitting 16 N. Y. Supp. 850, (1891). So, (1900); Smith v. Milwaukee Elec. where negligence In the manage- Ry. Co., 119 Wis. 336, (1903). ment of the car is alleged, evidence *" North Chicago St. Ry. Co. v. is admissible tending to show that Williams, 140 111. 275, 52 Am. & Eng. the cars were racing, but it is not R. Cas. 522, 29 N. E. Rep. 672, proper to admit evidence of racing (1892); North Chicago St. Ry. Co. on other occasions, Whitbeck v. v. Polkey, 106 111. App. 98, (1903); Atlantic Ave. R. R. Co., 4 N. Y. Cummings v. Worcester St. Ry. Co., Supp. 100, (1889). In Barrett v. 166 Mass. 220, 44 N. E. Rep. 126, 5 Third Ave. R. R. Co., 1 Sweeny 568, Am. & Eng. R. Cas. (N. S.) 389, (1869), It was held that where two (1896); Schmidt v. Coney Is. Ry. tracks cross each other at an acute Co., 26 App. Div. (N. Y.) 391, (1898). angle, at a place where cars fre- See sec. 331, ante, quently pass, and the distance to ""North Chicago St. Ry. Co. v. pass out of danger is sixty-five feet, Williams, supra. See also sec. 336, the mere fact of the car pas irg ante, and cases there cited, such a point at the usual rate of "" Watkins v. Atlantic Ave. R. R. speed of five miles per hour. Is of Co., 20 Hun 237, (1880) ; Ham Iton Itself evidence of negligence. Sae v. West End St. Ry. Co., 163 Mass. also Wade v. City & Suburban Ry. 199, 39 N. E. Rep. 1010, (1895); Co., 36 Ore. 311, 59 Pac. Rep. 875, Cleveland City Ry. Co. v. Osbom, 360.] THE CAEEIEB AND ITS PASSENGEHS. 583 near the ends of the seats, where a eollision wonlcl almost neces^ sarily result in injury, than would be demanded in the manage- ment of closed car?.^^* Accordingly, it has been held that if an oprn car, in which passengers are occupying the outside seats, collides with horses which are being ridden or driven near the track, the carrier is liable to a passenger who is kicked by reason of such negligence.^** So it will be if a passenger, without his fault, is injured by a collision between cars, whether both are owned by the defendant or not, if the accident he proximately due, in part at least, to the negligence of its servants,^*' or by the derailment of a car which, by the driver's negligence, leaves the track and collides with a bridge.^*® 66 Ohio St. 45, (1902) ; Suse v. Met- ropolitan St. Ry. Co., 80 App. D'v. (N. Y.) 24, (1903) ; Smith v. Metro- politan St. Ry. Co., 92 App. Div. (N. Y.) 213, (1904). *"Seidllnger v. Brooklyn City R. R. Co., 28 Hun 503, (1882). =« Walker v. Atlantic Ave. R. R. Co., 11 N. Y. Supp. 742. (1890). It was held by the supreme court of New York that special vigilance Is imposed upon a car-driver when he knows that one of the tracks Is oc- cupied by a wagon carrying a heavy load of lumber projecting from its rear end, which is liable to leave the track at any time and to swing around in such a way as to strike the car and injure the passengers. Alexander v. Rochester City & Brighton R. R. Co., 12 N. Y. Supp. 685, (1891). But the court of ap- peals, reversing this decision, held that, as the wagon was proceeding on a parallel track near the middle of a block, the driver of the car had a right to assume that the wpgon would not turn off at that point, and, therefore, could without fault proceed at the ordinary rate of speed, and that his employer was uot liable for Injuries caused by the unexpected change in the course of the wagon. Alexander v. Rochester City & Brighton R. R. Co., 128 N. Y. 13, (1891). In Devlin v. Atlantic Ave. R. R. Co., 10 N. Y. Supp. 848, (1890), it was held that, the evi- dence having shown that the street car and a private vehicle had stopped In plain view of each other in a very narrow street, and that the collision would not have oc- curred had the car stopped but a very short time and permitted the wagon, which was first in motion, to pass, it was error to order a nonsuit in the trial of an action by a pas- senger against the railway com- pany. See also Wood v. Brooklyn City Ry. Co., 5 App. Div. (N. Y.) 492, (1896) ; Chicago City Ry. Co. v. An- derson, 182 111. 298, 55 N. B. Rep. 366, (1899). '^ Smith V. St. Paul City Ry. Co., 32 Minn. 1, 16 Am. & Eng. R. R. Cas. 310, (1884) ; Chicago City Ry. Co. V. Lace, 62 111. App. 535, (1895) ; Rahenkampf v. United Trac. Co., 14 Pa. Super. Ct. 635, (1900). See also sees. 362, 363, post. •"Wilkerson v. Consolidated St. -Ry. Co., 26 Mo. App. 144, (18S7). 584: THE LAW OF STEEET EAILWATS. [§ 361. § 361. Presumptions arising from injury to passenger Actions by passengers against their carriers to recover damages for injuries caused by tbe alleged negligence of the latter are not exceptions to the general rule that the burden of proof is on the plaintiff to prove negligence when it is denied by the defendant. The mere fact that a passenger has been injured en route, with- out any evidence whatever as tO' the manner in which the acci- dent occurred, does not raise a presumption of negligence against either of the parties.^^'^ But the burden of proof shifts where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it, or where it is caused by the mismanagement of a thing over which the defendant has immediate control, or for the manage- ment or construction of which it is responsible.^^* When an injury occurs to a passenger and the evidence shows that it was caused by a defect in the construction or equiplnent of the carrier's vehicle, or anything pertaining to the service which the carrier ought to control, a presumption of negligence arises from the happening of the accident, and upon such proof the burden will devolve upon the defendant to exonerate itself by showing the existence of causes beyond its control, unless evidence thereof appears as a part of the plaintiff's case ; but to throw this burden upon the carrier it must first be shown that the injury com- plained of resulted from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the con- duct of the business or in the appliances of transportation. =='Buck V. Manhattan Ry. Co., 10 (1908). See Patterson's Railway Ac- N. y. Supp. 107, (1890); Hawkins v. cident Law, p. 438; Cincinnati Trac. Front St. Cable Ry. Co., 3 Wash. Co. v. Holzenkamp, 74 Ohio St. 379, 592, 28 Pac. Rep. 1021, (1891). 6 L. R. A. 800, (1906); Cincinnati St. '" Western Transportation Co. v. Ry. Co. v. Kelsey, 9 Ohio C. C. 170, Downer, 11 Wall. 129, (1870); Lin- (1894). coin St. Ry. Co. v. McClellan, 54 =»» Thomas v. Philadelphia & Neh. 672, 74 N. W. Rep. 1074, (1898) ; Reading R. R. Co., 148 Pa. St. 180, Klinger V. United Trac. Co., 92 App. 23 Atl. Rep. 989, (1892); Smith v. Dlv. (N. Y.) 100, (1904); Price v. St. Paul City Ry. Co., 32 Minn. 1, Metropolitan St. Ry. Co., 220 Mo. (1884); Peital v. Middlesex H. R. 435, 119 S. W. Rep. 932, 132 Am. St. Co., 109 Mass. 398, (1872); Keller v. Rep. 588, (1909); Lehner v. Pitts- Hestonville Pass. Ry. Co., 149 Pa. burg Rys. Co., 223 Pa. St. 208, 72 St. 65, 24 Atl. Rep. 159, (1892); Atl. Rep. 525, 132 Am. St. Rep. 729, Whitaker v. Staten Island Ry. Co., § 361. J THE CABEIEE ATTO ITS PASSENGEES. 585 Where the plaintiff's own evidence shows the operation of causes heyond the control of the carrier, as the presence of vis major or tortious acts of a stranger tending to produce the accident, the plaintiff, ui order to make out a prima facie case, will generally he ohliged to go further and prove the actual negligence of the defendant as an operating and efficient cause, or that by the exercise of due diligence the accident might have been avoided. ^^^ If the evidence discloses the fact that at the time of the accident the passenger was doing no act contributing to his injury, that the car on which he was a passenger was in motion, and that the accident occurred under such circumstances as to naturally raise the inference that it was due to some defect in the track or equip- ment of the defendant, or be traced to some act of its servants in the management of the car, the onus devolves upon the carrier to relieve itself from liability therefor, by proof showing that the injury was the result of an accident which the utmost diligence, skill and foresight on its part could not avert. Thus, the derail- ment of a car at a place where the track and car were under the exclusive control of the defendant, although the cause be unex- plained, raises a presumption that it was guilty of negligence.^''^ 65 App. Div. (N. Y.) 451, (1901); v. Middlesex R. R. Co., 109 Mass. Angell on Carriers (5th Ed.), sec. 398, (1872). To the same general 789; Ray, Negligence of Imposed effect, see Arkansas, Midland R. R. Duties, p. 155. Co. v. Canman, 52 Ark. 517, 13 S. ^" Le Barron v. East Boston Ferry W. Rep. 280, (1889); Furnish v. Co., 11 Allen 312, (1865) ; Gillespie Missouri Pacific Ry. Co., 102 Mo. V. St. Louis, Kansas City & N. Ry. 438, 13 S. W. Rep. 1044, (1890) ; Bal- Co., 6 Mo. App. 554, (1879). See timore & Yorktown Turnpike Road also Smith v. St. Paul City Ry. Co., v. Leonhardt, 66 Md. 70, (1886) ; and Feital v. Middlesex R. R. Co., Elec. Ry. Co. v. Carson, 98 Ga. supra; Chicago City Ry. Co. v. 652, 27 S. E. Rep. 156, (1896) ; Calu- Rood, 163 111. 477, 45 N. E. Rep. 238, met St. Ry. Co. v. Jennings, 83 111. (1896). App. 612, (1899); Harriman v. "^Pollock V. Brooklyn & Cross- Reading St. Ry. Co., 173 Mass. 28, town R. R. Co., 15 N. Y. Supp. 189, 53 N. E. Rep. 156, (1899) ; Dusen- (1891), where the driver of the bury v. North Hudson Ry. Co., 66 car was guilty of negligence in its N. J. L. 44, 48 Atl. Rep. 520, (1901) ; management; Wilkinson v. Corri- Indianapolis St. Ry. Co. v. Schmidt, gan Consolidated St. Ry. Co., 26 163 Ind. 360, (1904). In Curtis v. Mo. App. 144, (1887), where the Rochester & Syracuse R. R. Co., 18 driver was inside the car and per- N. Y. 534, (1859), it was held that mitted the horses to run away, caus- the mere fact of a train running ing the car to leave the track; Feital oft a switch is not of itself, without 586 THE LAW OP STEEET BAIIWATS. [§ 361. So negligence may be presumed from the collision of a car in which the passenger was riding with another street car,^^^ or with a vehicle ;^''^ and this rnle is strictly applied to cases against street railway companies for damages sustained in collisions at steam railroad crossings.^** But in an action by a passenger against two carriers or against his own carrier and the owner of a private vehicle, for damages caused by a collision, the mere fact of the proof of the circumstances under ■which the acc'dent occurred, pre- sumptive evidence of negligence on the part of the company. See also Klinger v. United Trac. Co., 92 App. Dlv. (N. Y.) 100, (1904) ; Stevenson V. Second Ave. Ry. Co., 35 App. Dlv. (N. Y.) 474, (1898) ; Ramson v. Metropolitan St. Ry. Co., 78 App. Dlv. (N. Y.) 101, (1903). "■i North Chicago St. Ry. Co. v. Cotton, 140 111. 486, 52 Am. & 3ng. R. Cas. 238. 29 N. E. Rep. 899, (1892), holding thPt, where a train of cahle cars, on the rear plaform of the last car of which the plaint- iff was standing, came to a stop when half way through a tunnel and remained standing there sev- eral minutes, when another trpln descended through the tunnel col- liding with the rear car of the standing train and thereby injured the plaintiff, the mere fact of the injury raised a presumption of neg- ligence, which was sufficient to sus- tain a general charge of negligence In the running and operation of the defendpnt's road and the cars pro- pelled thereon. See also North Chi- cago St. Ry. Co. V. Boyd, 57 111. App. 535, (1894) ; Smith v. St. Paul City Ry. Co., 32 Minn. 1, (1884), where it appeared that while a passenger was getting on the car. it was struck by another car of the same company. See also Tompklna V. Clay St. Ry. Co., 66 Cal. 163, (1884); Philadelphia & Reading R. R. Co. V. Boyer, 97 Pa. St. 91, (1881). ==« Hill V. Ninth A^e. Ry. Co., 109 N. Y. 239, (1888), In which it was held proper to infer negligence from the tact that the pole of a wagon penetrated the front end of the car, throwing a passenger from her seat. Finch, J., said: "It is not a reasonable and natural Inference that a passenger in a street ear can he thrown from her seat by the shaft of a truck piercing through the front of the car without some carelessness on the part of the driver." Contra, Federal St. & Pleasant Valley R. R. Co. v. Gib- son, 96 Pa. St. 83, (1880), where the plaintiff was Injured by a parsing load of hay. See also Chicago City Ry. Co. V. Engel, 35 111. App. 490, (1889); Olsen v. Citizens' Ry. Co., 152 Mo. 426, (1899). "•Central Pass Ry. Co. v. Kuhn, 85 Ky. 578, (1888); Central Pass. Ry. Co. V. Bishop, 8 Ky. Law Rep. 781, (1887); Same v. Same, 9 Ky. Law Rep. 348, (1887); Peoples' Pass. Ry. Co. v. Weilder, 17 W. N. C. (Pa.) 306, (1886); Chicago City Ry. Co. V. Engel, supra; West Chi- cago St. Ry. Co. V. Martin, 154 111. 523, 39 N. B. Rep. 140, (1894); North Balto. Pass. Ry. Co. v. Kaskell, 78 Md. 517, 28 Atl. Rep. 410, (1894); Cincinnati St. Ry. Co. v. Murray, 9 Ohio C. C. 291, (1895); Osgood v. Los Angeles Trac. Co., 137 Cal 280, (1903), § 361.] THE OABBIEB AND ITS PASSENOEBS. 58? injury creates no presumption of negligence against the pro- prietor of the vehicle not occupied by the plaintiff.^'" The pre- sumption arising from an accident attributable to some defect of track or equipment extends to and includes those appliances which the carrier uses, whether directly under its control or not, as a draw bridge adopted as a paxt of its route.^** Although a person who is boarding or leaving a car is a passenger and entitled- to due protection as such, he is' charged by law with the duty of exercising proper care and caution for his own safety; therefore, the law raises no presumption against the carrier in favor of one of its passengers from the mere fact unexplained that he was injured while in the act of entering the car,^*^ or alighting from it.^** Where it appears that the passenger was exercising due care, the burden of proof which primarily rested upon him is shifted to the defendant.^*^ But if the character of the accident indicates that it could not have happened without improper exposure to danger on the part of the passenger, it does not raise a presumption of negligence against the carrier.^^" '"Tomkins v. Clay St. Ry. Co., 66 Gal. 1G3, (1884); Philadelphia & Reading R. R. Co. v. Boyer, 97 Pa. St. 91, (1881); Harrison v. Sutter St. Ry. Co., 134 Cal. 549, 66 Pac. Rep. 787, 23 Am. & Eng. R. Cas. (N. S.) 809, (1901); Loudoun v. Eighth Ave. Ry. Co., 162 N. Y. 381, (1900). '"Catalanotto v. Coney Island & Brighton R. R. Co., 7 N. Y. Supp. 628, (1889). "'Keller v. Hestonvllle, Mantua & Fairmount Pass. Ry. Co., 149 Pa. St. 65, 24 Atl. Rep. 159, (1892), in which the passenger's foot caught in an open space above the step; applying and following Pennsyl- vania R. R. Co. V. MacKinney, 124 Pa. St. 462, (1889), and Farley v. Philadelphia Traction Co., 132 Pa. St. 58, (1890); Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa. St. 70, 75, (1888); Jacksonville St. Ry. Co. v. Chappell, 21 Fla. 175, (1885) ; Alfer- man v. Union Depot Ry. Co., 125 Mo. 408, (1894). •"Mitchell v. Chicago & Grand Trunk Ry. Co., 51 Mich. 236, (1883) ; Roberts v. Johnscn, 58 N. Y. 6.3, (1874); Schulz v. Second Ave. Ry. Co., 12 App. Div. (N. Y.) 415, (1896); Chicago City Ry. Co. v. Catlin, 70 111. App. 97, (1897); Messinger v. St. Paul City Ry. Co., 77 Minn. 34, 79 N. W. Rep. 583, (1899). "' Birmingham Union Ry. Co. v. Hale, 90 Ala. 8, 12, 8 So. Rep. 142, (1890); City and Suburban Ry. Co. V. Findley, 76 Ga. 311, (1886); Dougherty v. Missouri R. R. Co., 81 Mo. 325, 51 Am. Rep. 239, (1884). See also Roberts v. Johnson, 58 N. Y. 613, (1874); Delavirare, Lacka- wanna & Western R. R. Co. v. Napheys, 90 Pa. St. 135, 1 Am. & Eng. R. R. Cas. 52, 59, (1879). •^ Miller v. St. Louis R. R. Co., B Mo. App. 471, (1878). 588 THE LAW OF STEEET EAILWATS. [§ 362. In order to fix responsibility on tlie carrier, there must be some- thing more than a mere probability that its servants were negli- gent. Therefore, the unexplained fact that a passenger is in- jured by falling from the platform of a crowded car, does not raise any presumption of negligence on the part of the carrier.^^^ § 362. Negligence of carrier not imputed to passenger The doctrine which has been adopted by some courts, ^°^ that a pas- senger in a public conveyance is in some way identified with its owner or driver, and, therefore, cannot recover of the owner of another conveyance, public or private, for injuries caused by a collision of the two, when he has exercised no control over the conduct of the driver of the vehicle in which he is riding, is unjust, illogical and indefensible. The correct rule is that when one is liding in a public conveyance and has exercised, and can exercise, no control over those who are engaged in managing it, and a collision occurs between it and another conveyance, caused by the joint negligence of the drivers of the two vehicles, the passenger is not identified with the driver of the vehicle in which he is riding and is not prevented by the relations existing between carrier and passenger from recovering from the owner of the *' Payne v. Forty-Second St. & D'Arcy v. Westchester Elec. Ry. Grand St. Ferry R. R. Co., 40 N. Y. Co., 82 App. Div. (N. Y.) 263, (1903). Super. 8, (1875) ; Muller v. Second See also Hite v. Metropolitan St. Ave. R. R. Co., 48 N. Y. Super. 546, Ry. Co., 130 Mo. 132, (1895) ; Fitch (1882). V. Mason City Trac. Co., 124 la. 665, Inability to control the speed of 670, (1904) ; Cincinnati St. Ry. Co. v. a car makes a prima facie case of Kelsey, 9 Ohio C. C. 170, (1894), negligence, even though it is im- where car was overturned; Cincin- posslble to determine the precise nati Trac. Co. v. Holzenkamp, 74 nature or location of the defect. Ohio St. 379, 6 L/. R. A. (N. S.) 800, Bishop v. St. Paul City Ry. Co., 48 note, 113 Am. St. Rep. 980, note, Minn. 26, 50 N. W. Rep. 927, (1892). (1906), falling of trolley pole; Marsh Where a car catches fire, the bur- v. Lake Shore Electric St. Ry. Co., den of proof is on the company to 28 Ohio C. C. 9, (1905), holding that explain the cause of the fire. Paul- ordinarily the rule does not apply sen V. Nassau Elec. Ry. Co., 18 App. to accidents arising from the use of Div. (N. Y.) 221, (1897); Cassady electricity. v. Old Colony St. Ry. Co., 184 Mass. """ For a discussion of those cases, 156, (1903) ; where a passenger is see Patterson, Railway Accident Injured by an electric shock while Law, p. 78, et seq., and Beach, Con- grasping a brass rod used to protect tributory Negligence (3d Ed.), sec. a window, it is res ipsa loquitur. 105, et seq. §363.] THE CAEEIER AND ITS PASSEHGEKS. 589 other vehicle full damages for injuries caused by the coUision.^^'' The opposite doctrine, known as the English rule, and adopted by some of the American reports, has been expressly repudiated by later English decisions.^^* "When a passenger is injured by the mutual negligence of his own carrier and another person the comparative degree in culpability of the two will not affect the liability of either.^"' § 363. Right to maintain joint action. — It is the general rule that when a collision of a vehicle operated by a common carrier and another vehicle, whether operated by a common car- rier or not, is caused by the negligence of the proprietors of both contributing to the injury of a passenger, he may maintain an action against them jointly or severally.^^® In such a case the ^Holzab V. New Orleans & Car- roUton R. R. Co., 38 La. Ann. 185, (1886); Schneider v. Second Ave. R. R. Co., 15 N. Y. Supp. 556, (1891), modified but affirmed in 30 N. E. Rep. 752, (1892); Covington Trans- fer Co. V. Kelly, 36 Ohio St. 86, (1880); St. Clair St. Ry. Co. v. Badie, 43 Ohio St. 91, 94, 54 Am. Rep. 154, (1885); Newport St. R. R. Co. v. Johnson, 2 Ky. Law Rep. 225, (1881) ; Kuttner v. Lindell Ry. Co., 29 Mo. App. 502, (1888); Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, (1871) ; Same v. Same, 1 Sweeney 568, (1869); Tompkins v. Clay St. Ry. Co., 66 Cal. 163, (1884); Philadel- phia & Re? ding R. R. Co. v. Boyer, 97 Pa. St. 91, (1881) ; Central Pass. Ry. Co. V. Kuhn, 86 Ky. 578, 6 S. W. Rep. 441, (1888) ; Brlckell v. New York Central & Hudson River R. R. Co., 120 N. Y. 290, 30 N. Y. St. Rep. 932, (1890); Chamberlain v. Tcwn of Wheatland, 26 N. Y. St. Rep. 602, 7 N. Y. Supp. 190, (1889) ; Hoag v. New York Central & Hudson River R. R. Co., Ill N. Y. 199, (1888); Whelan v. New York, L. E. & W. R. R. Co., 38 Fed. Rep. 15, (1889); New York, P. & N. R. R. Co. v. Cooper, 85 Va. 939, 9 S. E. Rep. 321, (1889); Georgia Pacific Ry. Co. v. Hughes, 87 Ala. 610, 6 So. Rep. 413, (1888); Bennett v. New Jersey R. R. & Transportation Co., 36 N. J. L. 225, (1873) ; Bunting v. Hogsett, 27 W. N. C. (Pa.) 317, (1891) ; State V. Boston & Maine R. R. Co., 80 Me. 430, 15 Atl. Rep. 36, (1888) ; Flaherty V. Northern Pacific Ry. Co., 39 Minn. 328, 40 N. W. Rep. 160, (1888) ; Mc- Callum V. Long Island R. R. Co., 38 Hun 569, (1886) ; Louisville, Cincin- nati & Lexington R. R. Co. v. Case, 9 Bush. (Ky.) 728, (1873). "*' Matthews v. London St. Tram- way Co., 60 L. T. R. 47, (1888). ="> Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, (1871). »" Tompkins v. Clay St. Ry. Co., 66 Cal. 163, (1884) ; Philadelphia & Reading R. R. Co. v. Boyer, 97 Pa. St. 916, (1881) ; Flaherty v. North- ern Pacific Ry. Co., 39 Minn. 328, 40 N. W. Rep. 160, (1888) ; Georgia Pacific Ry. Co. v. Hughes, 87 Ala. 610, 6 So. Rep. 413, ( 1888) ; Schnei- der V. Second Ave. R. R. Co., 133 N. Y. 583, 30 N. B. Rep. 752, (1892), 590 THE LAW OF STEEET EAILWAY8. [§ 363. joint liability does not depend upon the degree of culpability,'" but on the character of the negligent act or omission of each of the parties defendant.^^* When both are sued the plaintiff may dismiss as to either, or if it turn out at the trial that one was not guilty of negligence, he may, on sufficient evidence, take a verdict against the other.^^® modifying but affirming 15 N. Y. Supp. 556, (1891), where the car of one of two defendant street railway companies was defective and the driver of the other was Inattentive to his duties. See also Little Rock Railway Co. v. Harrell, 58 Ark. 454, 25 S. W. Rep. 117, 60 Am. & Eng. R. Cas. 247, (1894); Matthews v. Dela- ware, Lackawanna & Western R. R. Co.. 56 N. J. L. 34, 27 Atl. Rep. 919, (1893); O'Rourke v. Lindell Ry. Co., 142 Mo. 342, (1897); Washing- ton & Georgetown Ry. Co. v. Hickey, 12 App. Cas. (D. C.) 269, (1898) ; Springfield Consolidited Ry. Co. V. Puntenney, 101 111. App. 95, (1901); Sternfels v. Metropoli- tan St. Ry. Co., 73 App. Div. (N. Y.) 494. (1902). In Maumee Valley Rys. & Elec. Co. V. Montgomery, 81 Ohio St. 426, (1910), it was held that a common carrier, being the owner of the track used by it, "is liable to its passen- gers for injury received in a col- lision between its car and the car of another common carrier which it admits to the joint use of its track, though the collision is the result wholly of the negl'gence of the lat- ter company," and that the liability of both may be enforced in the same action. '"Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, (1871). "' Schneider v. Second Ave. R. R. Co., supra. *»» Tompkins v. Clay St. Ry. Co.. supra. On appeal from a joint judg- ment against two defendants, the court may set the judgment aside as to one, and allow it to stand against the other. Nashville Street Ry. Co. V. Gore, 106 Tenn. 390, 61 S. W. Rep. 777, (1900). In Graves v. City and Suburban Tel. Asso'n, 132 Fed. Rep. 387, 9 Am. Electl. Cas. 20, (1904), the court held that the omissions of duty of a traction company and tel- ephone company were concurrent and that both were jointly liable for injuries therefrom, under the state of facts shown in that case. In the following cases the same rule was applied to telephone companies and electric light companies, viz.: Drown v. New Eng. Teleph. & Tel. Co., 80 Vt. 1, 66 Atl. Rep. 801. 9 Am Electl. Cas. 1053, (1907); East Ten- nessee Teleph. Co. v. Carmine, 29 Ky. Law Rep. 479, 93 S. W. Rep. 903, 9 Am. Electl. Cas. 802, (1906); Simmons v. Shreveport Gas, Elec. Light & Power Co., 116 La. Ann. 1033, 41 So. Rep. 248, 9 Am. Electl. Cas. 760, (1906); Mangan v. Hud- son River Teleph. Co., 50 Misc. (N. Y.) 388, 10 N. Y. Supp. 539, 9 Am. Electl. Cas. 804, (1906). In Hayes V. Chicago Teleph. Co., 218 111. 414, 75 N. E. Rep. 1003, (1905), where the liability of a telephone com- pany for the death of plaintiff's Intestate rested upon the alleged negligence of the city which was In control and possession of the wire by permission of the telephone com- pany, it was held that a judgment in favor of the city released the tel- ephone company from liability. § 364.J THE CAEEIEB AND ITS PASSENGEES. 591 § 364. Payment and tender of fare "While, as a general rule in order to constitute a valid tender, the exact amount must be offered, yet, if a railroad company permits a passenger to board its car without demanding the payment of his fare in advance, a relation of debtor and creditor is established, and the enforcement of a rule requiring the tender of the exact fare, being impracticable, would clearly be unreasonable and illegal.^^" In the absence of regulations by a street railway company of which the public has reasonable notice, fixing the maximum sum which may be tendered, what amount would be a reasonable ten- der in any given case is a question which cannot be determined by any general rule derived from the decisions. The courts have held, however, that there is a distinction between railroads whose passengers may pay their fares at a ticket office, and street rail- ways where they are obliged, or permitted, according to custom, to pay upon the cars. In one case a company was held liable in an action for damages for ejecting a passenger who tendered five dollars in gold and refused to leave the car upon demand of pay- ment of the exact fare.^*^ A genuine silver coin, worn smooth by use, not appreciably diminished in weight and distinguishable, is a legal tender for car fare, and if a passenger is ejected for refusal to make any other payment he may have an action for damages.^*"* A regulation of a company requiring a passenger, who by mistake deposits in the box more than the regular fare, to go to the office of the company for reimbursement and correction of the mistake is unreasonable. The servants of the company in the charge and ""Tarbell v. Central Pacific Ry. "unreasonable as a matter of law," Co., 34 Cal. 616, (1868). and the same ruling was made in *" Barrett v. Market St. Ry. Co., Barker v. Central Park Ry. Co., 151 81 Cal. 296. 22 Pac. Rep. 859, (1889). N. Y. 237, (1896). In Fulton v. Grand Trunk R. R. Co., "^ Morgan v. Jersey City & Bergin 17 U. C. Q. B. 428. (1859), the R. R. Co., 52 N. J. L. 60, 18 Atl. tender of a five dollar bill isas held Rep. 904, (1889). Ejection held to be unreasonable. The unreason- improper where conductor refused ab?eness of a tender in money In to take an 1824 halt dollar; Atlanta excess of the fare is a question of Consol'datGO St. Ry. Co v. Kffuy, law to be determined by the court. 99 Ga. 266, 25 S. E. Rep. 629, 33 L. Muldowney v. Pittsburg Trac. Co., R. A. 824, (1896). In North Hud- 8 Pa. Super. Ct. 335, (1898). holding son Ry. Co. v. Anderson, 61 N. J. L. that the tender of five dollars was 248, 39 Atl. Rep. S03, 40 L. R. A. 592 THE LAW OF STREET EAILWAYS. [§ 365. management of its cars, as a necessary part of that management, should be invested with authority to reimburse passengers for fares inadvertently placed in the box. It has been held in New York, by a divided court, that where a passenger discovers his mistake and the driver, on being requested to restore the excess so paid, refuses to do so, directing the passenger to repair to the office of the company for his money, the latter may lawfully retain a fare which he is requested by another passenger to deposit in the box, and that the company will be liable for the act of the driver in ejecting him and causing his arrest and imprisonment.^'^ It has been held in England, and would certainly be good law in this country, that the by-law of a tramway company, which pro- vides that each passenger shall deliver up his ticket when required to do so or pay his fare, is a reasonable regulation; and that a passenger traveling under such circumstances, who shows his ticket but refuses to deliver it up on the ground that his journey is not terminated, is liable to the penalty prescribed by the by-law.^'* § 365. Free passengers, newsboys and trespassers As stated elsewhere, children who have not sufficient knowledge and ex- perience to enable them to care for themselves, even if permitted to ride without the payment of fare, are entitled while on the 410, (1897), it was held that a pas- not be allowed for requiring the senger who tendered a mutilated payment of an additional fare under dollar bill was properly ejected. the circumstances in that case. ="" Corbett v. Twenty-third St. Ry. =" Heap v. Day, 34 W. R. 627, 51 J. Co., 42 Hun 587, (1886). Where a P. 213, (1886). What is a reasonable dispute arose between a driver and time within which a passenger must a passenger as to whether or not he pay his fare, after demand made, had paid his fare, it was held in depends upon circumstances. It Rown V. Christopher & Tenth St. cannot be said as a matter of law R. R. Co., 34 Hun 471, (1885), that that the time during which it takes the driver was not justified in giv- a car to travel a quarter of a mile ing the passenger into the custody is such a reasonable time; Huba v. of a policeman, and for his act in Schenectady Ry. Co., 85 App. Div. so doing the company was held lia- (N. Y.) 199, (1903). ble. See also Curtis v. Louisville The subject of coupon tickets and City Ry. Co., 94 Ky. 573, 23 S. W. transfers Is considered in sec. 237, Rep. 363, 21 L. R. A. 649, (1893); ante. See also, on the subject of Carr v. Toledo Trac. Co., 19 Ohio transfer tickets. Pine v. St. Paul C. C. 281, (1900),, in which it was City Ry. Co., 50 Minn. 144, 52 N. W. held that punitive damages should Rep. 392, (1892). § 365.J THE CAEEIEE AND ITS PASSENGEKS. 593 car to a degree of care proportioned to their apparent ignorance and helplessness;^^' but newsboys who enter street cars for the purpose of selling papers are not passengers, but* mere licensees who assume all the risks of ordinary negligence on the part of the company's servants. ^^® Being mere licensees, they may be ="Ante, sec. 326. See also Buck V. People's St. Ry. & Electric Light & Power Co., 108 Mo. 179, 18 S. W. Rep. 1090, (1892). But see Finley v. Hudson Electric Ry. Co., 64 Hun 373, (1892), in which it was claimed upon the trial, that the plaintiff, a boy, had heen invited to ride upon the car by the motor-man as pay- ment for his serTtices in opening a switch, which it was the duty of the motor-man to open. The com- pany had forbidden motor-men to allow anyone to ride upon such terms. It was held that the de- fendant owed no duty to the plaint- iff as a passenger, because the act of the motor-man in inviting him to ride was not within the scope of his duty or power as an employe, that it was not in furtherance of the company's interests or for its benefit, and that the law would not imply an assent upon the part of the company to such an invitation by its servants. See also Hart v. West Side R. R. Co., 86 Wis. 483, 57 N. W. Rep. 91, (1893); Little Rock Trac. Co. v. Nelson, 66 Ark. 494, 52 S. W. Rep. 7, (1899); Dan- beck V. North Jersey Traction Co., 57 N. J. L. 463, 31 Atl. Rep. 1038, (1893), holding that a boy invited by conductor on car was not a tres- passer and that the company owed him all reasonable care; Evansville St. Ry. Co. v. Meadows, 13 Ind. App. 155, (1895) ; Marks v. Rochester Ry. Co., 41 App. Div. (N. Y.) 66, 71, (1899), deciding that if a person sui juris accepts a gratuitous ride at the invitation of a conductor he as- 38 sumes the risk of Injury resulting from the negligence of the com- pany's employes. It is held that although It is the duty of the company to exercise reasonable care to prevent injuries to children while entering or leav- ing the car, it can not be held liable for an Injury to a child, a mere trespasser, who felli off the car when his presence there was un- known to the driver, and, being frightened by a threat of the driver to arrest his companions, jumped off the rear platform and was in- jured. Clutzbeher v. Union Pass. Ry. Co., 1 Atl. Rep. 597, (Pa. 1885). See also Wrasse v. Citizens' Trac- tion Co., 146 Pa. St. 417, 23 Atl. Rep 345, (1892). Where a conductor reaches out to get a boy who is "stealing a ride" and by his shouts frightens the lad sO' that he falls from a moving car and is injured, the company is liable. Ansteth v. Buffalo St. Ry. Co., 145 N. Y. 210, (1895). As to duty of care to chil- dren who are trespassers, see Barre v. Reading Pass. Ry. Co., 155 Pa. St. 170, (1893); Gay v. Essex St. Ry. Co., 159 Mass. 238, 21 L. R. A. 448, (1893); McCahill v. Detroit City Ry. Co., 96 Mich. 156, (1893); Jefferson v. Birmingham Ry. Co., 116 Ala. 294, 38 L. R. A. 458, (1896); Washington, Alex. & Mt. V. Ry. Co. V. Quayle, 95 Va. 741, (1898); Mt. Adams Ry. Co. v. Doherty, 8 Ohio C. C. 349, (1894). "» North Chicago St. Ry. Co. V. Thurston, 43 111. App. 587, (1892); Padgitt v. Moll and CIti- 594: THE LAW OF STEEET EAILWATS. [§ 366. compelled to leave the car in order to facilitate the admission of passengers.-®^ Although the carrier does not owe the same degree of care to trespassers as it does to its passengers, nevertheless it will be liable to such a person, or to any one invited upon its car by the servants in charge thereof, for their willful acts or their gross or reckless carelessness in the management of the car whereby he is injured,*^* as for throwing a trespasser off the car against the hub of a passing wagon,^*''' or removing an intruder in a reckless manner.^'" It is not per se negligence to order an adult trespasser to leave the car while it is in motion, and if he is injured by his failure to exercise due care while alighting in obedience to such a command, the company will not be liable."* But it is responsible for the act of its driver or conductor in forcibly ejecting boys from a car while it is in motion, even though they were mere trespassers.^^^ § 3S6. Traveling on Sunday — In several of the states travel- ing on Sunday, except from motives of necessity or charity, is by statute made unlawful and punishable as a misdemeanor.-'^ In Maine and Vermont the doctrine has long been maintained that the violation of such a statute is a complete, defense to an action zens Ry. Co., 159 Mo. 143, (1900); 27 111. App. 518, (1888); Wright v. Indianapolis St. Ry. Co. v. Hock- Union Ry. Co., 21 R. I. 554, 45 Atl. ett, IGl Ind. 19G, (1903); Albert Rep. 548, (1900). v. Boston Elev. Ry. Co., 185 Mass. ki Hogan v. Central Park, North 210, (1904). Ante, sec. 326. ^ E^st River R. R. Co., 124 N. Y. -Philadelphia Trac. Co. v. Or- ^.^^^ ^ggi). Rosenberg v. Third bann. 119 Pa. St. 37. 47, (1888). ^^^ ^ ^ 47 ^ Div. (N. Y.) =® Day V. Brooklyn City R. R. Co., 323, (1900), holding that a company ,. is bound to use ordinary care to who finds a street car standing so . . , , , .i,ii» ° protect a person from Injury while 12 Hun 435, (1877). A pedestrian as to obstruct a street crossing and walks across the car is not technic- ally a trespasser. McCann v. Sixth Ave. R. R. Co., 117 N. Y. 505, 510, "' Hestonville, Mantua & Fair- alighting, whether he is to be con- sidered a passenger or trespasser. (1889). mount Pass. Ry. Co. v. Biddle, 24 "-Murphy V. Central Park, North W. N. C. (Pa.) 156, 16 Atl. Rep. 488, & East River R. R. Co., 48 N. Y. (1889): Middle v. Hestonville, Man- Super. 96, (1882), holding that the tua & Fairmount Pass. Ry. Co., 112 company was not excused because ^^- St. 551, 4 Atl. Rep. 385, (1886). the act was brutal and wanton. ™ Ante, sec. 74. See also Ringgold "" North Chicago City Ry. Co. v. on the Law of Sunday, pp. 227, 236, Gastka, 128 111. 613, (1889), affirming 248, 299, 311. § 366.] THE CAEEIEE AND ITS PASSENGEES. 595 for negligence by a traveler who is irjiired while transgressing, on the ground that by his violation of law he contributes to his injury;"'' and the same rule prevailed in Massachusetts,^" until an amendment to the Sunday traveling act denied the validity of such a defense.-'* This doctrine does not find favor elsewhere in this country, and has been expressly repudiated in Connecti- cut,"' lowa,"^ Maryland,"" New Hampshire, '^^ New Jersey,'*^ New York,^^'^ Pennsylvania,^*'^ Ehode Island^*^ and Wisconsin.^*' The disregard of such a prohibition cannot, in any proper sense, be coasidered the proximate cause of an injury. The view which "•Davidson v. City of Portland, 69 Me. 116, 31 Am. Rep. 253, (1879) ; Cratty v. City of Bangor, 57 Me. 423, (1870); Johnson v. Town of Irasburgh, 47 Vt. 28, 19 Am. Rep. Ill, (1874). "• Day V. Highland St. Ry. Co., 135 Mass. 113, 46 Am. Rep. 447, (1883) ; Stanton v. Metropolitan R. R. Co., 14 Allen 485, (1869); Smith v. Bos- ton & Maine R. R. Co., 120 Mass. 490, (1875); Lyons v. Desotelle, 124 Mass. 387, (1878); Bucher v. Pitts- hurgh R. R. Co., 131 Mass. 156, (1881): Feltal v. Middlesex R. R. Co., 109 Mass. 398, 12 Am. Rep. 720, (1872), holding that the fact that the passenger was going to a Spirit- ualist camp-meeting on Sunday ■was not conclusive evidence that he was traveling unlawfully. "•Mass. Pub. Sts. (1882), Chap. 98, sec. 3. See McDonough v. Metro- politan R. R. Co., 137 Mass. 210, (1884). "" Horton v. Norwalk Tramway Co., 66 Conn. 272, 33 Atl. Rep. 914, 3 Am. & Eng. R. Cas. (N. S.) 299, (1S95). =" Schmid V. Humpnrey, 48 la. 652, 654, 30 Am. Rep. 414, (1878). ""Philadelphia, Wilmington & Baltimore R. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415, (1881). "'Norris v. Litchfield, 35 N. H. 271, 277, (1857); Corey v. Bath, 35 N. H. 530, 532, (1857). "" Delaware, Lackawanna & West- ern R. R. Co. v. Trautweln, 52 N. J. L. 169, 19 Atl. Rep. 178, 1 Am. R. R. & Corp. Rep. 688, (1889). «= Carroll v. Staten Island R. R. Co., 58 N. Y. 126. 17 Am. Rep. 221, (1874); Platz v. City of Cohoes, 89 N. Y. 219. 223, 42 Am. Rep. 286, .(1882). "" Com. ex rel. v. Berks County Prison Warden, 11 Pa. Dlst. Rep. 45, 46, (1901), holding that the running of street cars on Sunday In a large city and Its suburbs Is a necessity and is not in violation of the Act of 1794, in which Endlich, J., said: "What was deemed a necessity gen- erations ago may not be looked upon as a necessity to-day; and what was not thought of even as a convenience no more than a genera- tion ago, may very well be, and Is, In some instances, a necessity to- day." See also Com. v. Robb, 14 Pa. Co. Ct. Rep. 473, (1894). ^ Baldwin v. Barney, 12 R. I. 392, 34 Am. Rep. 670, (1879). *" Sutton V. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534, (1871); Knowlton v. Milwaukee City Hy. Co., 59 Wis. 278, (1884). 596 THE LAW OF STREET EAILWATS. [§ 367. accords most fully with the principles of justice, and is sustained by the greater weight of authority, is, that traveling on Sunday in violation of law is no defense to an action against a common carrier of passengers, for an injury to a passenger, unless so made by statute ;^^® and the reasons for this conclusion would seem to have peculiar force when, as in the earlier Massachusetts cases, both the carrier and the passenger were alike guilty in the eyes of the law. It was well said in an early Ohio case, involving the validity of a Sunday contract : "Both pai'ties partook of the sin of violating the Sabbath, and the law does not require us to enable either party to add to the sin, by breaking the faith pledged on that day, and commit a fraud out of assumed regard for the Sabbath day."^*^ § 367. Authority of carrier's servants to remove persons from car — The authority usually conferred upon the conductor of a car to maintain order and enforce the regulations of his employer, carries with it by implication the authority to eject a passenger who has by his conduct forfeited his right to be carried. The conductor represents the company; he may misjudge the facts; he may act unwisely or imprudently or even recklessly; but, as the business of preserving order and enforcing the regulations of the company is committed to him, if not expressly at least by implication, the master is responsible for his acts in the business intrusted by it to him, although he departs from the instructions of his employer.^®* So the driver in charge of a street car, as an incident of his employment and as the representative of his employer, has the right to eject persons who may be upon his car without right or contrary to the regulations of the company. His act in removing persons from the car will be considered as having been performed within the general scope ™ This seems to have been the 21 Cent. Law Jour. 525, and Pat- view adopted In McDonovigh v. terson, Rail-way Accident Law, p. 65. Metropolitan R. R. Co., supra. =" Higgins v. WatervUet Turnpike =" Swisher v. "Williams, Wright, & R. R. Co., 46 N. Y. 23, (1871); (Ohio) 754, (1834). See also a very Flynn v. Central Park R. R. Co., interesting article on "The Rights 49 N. Y. Super. 81, (1883); Vin- of a Person Suffering an Injury ton v. Middlesex R. R. Co., 11 When Violating the Sunday Law," Allen 304, 307, (1865); Healey v. §§ 368, 369.J THE CAKKIER AND ITS PASSENGEKS. 597 of his authority, and the company will be liable for any tort so committed.^^* § 368. Removal of sick passengers — The conductor or driver may lawfully eject a passenger whose conduct is either disorderly or necessarily offensive to the other passengers in the car, and the fact that he is sick and that his conduct is not willful or voluntary will not affect the right of the carrier's servants to remove him.^^*^ But when a sick passenger is removed fi*om a car, proper care must be exercised for his protection and safety.^*"^ §369. Ejecting disorderly passengers — Irrespective of the regulations of the company, the conductor has the right, and it is his duty, within the scope of his authority, to put off a passenger, even after his fare is paid, if he becomes disorderly or offensive.^*^ It is the duty of the carrier's servants to preserve order and to protect its passengers against the willful conduct of any of their number which is necessarily offensive. A passenger who enters a car and refuses to pay his fare, and, on being requested to leave the car, uses profane or indecent language, may be forcibly ejected, but the company will be liable for injuries resulting from excessive or unnecessary force.^®^ So a passenger, who, at least without great provocation, willfully calls the conductor a liar in City Pass. R. R. Co., 28 Ohio St. the coiiductor and driver while in 23, (1875). See also sees. 372, 373, a speechless and helpless condition post, and cases there cited. and laid in the open street on a ™ Meyer v. Second Ave. R. R. Co., bleak and drizzling day in December, 8 Bosw. 305, (1861) ; Hanna v. and there abandoned with no effort Nassau Blee. Ry. Co., 18 App. Div. made to procure him attention, the (N. Y.) 137, (1897). See sees. 372, driver believing that he was drunk. 373, post. It was held that the company was ^"Lemont v. Washington & liable for the damages resulting Georgetown Ry. Co., 1 Mackey 180, from the exposure. Conolly v. 47 Am. Rep. 238, (1881) ; Montgom- Crescent City R. R. Co., 41 La. Ann. ery v. Buffalo Ry. Co., 24 App. Div. 57, 6 So. Rep. 536, (1889). (N. Y.) 454, (1897) ; affirmed 165 N. ™= Flynn v. Central Park R. R. Co., Y. 139, (1900). 49 N. Y. Super. 81, (1883); City Elec. ^A. passenger while en route Ry. Co. v. Shropshire, 101 Ga. 33, 28 was stricken with apoplexy, at- S. E. Rep. 508, (1897). tended with severe vomiting, to the ^™ Pelletier v. Chicago City Ry. annoyance and discomfort of other Co., 134 111. 120, 24 N. B. Rep. 770, passengers, and was removed by (1890); McGarry v. Holyoke St. Ry. 598 THE LAW OF STEEET EAILWATS- [§ 370. the presence and hearing of other passengers, is gnilty of dis- orderly conduct which will forfeit his rights as a passenger."^ The grossly profane and indecent language of a passenger in a railroad coach where there are ladies has been held to be such a breach of decorum, although he may have been provoked to it by the conduct of the conductor, as will work a forfeiture of his right to be carried as a passenger and authorize the conductor to cause him to be expelled from the car, using no more force than is necessary for the purpose; and the exaction of a trifling sum for fare, which had already been paid, is held not to be a sufScient provocation for such conduct. ^*° § 370. Expulsion of intoxicated passengers. — The conductor or other person in charge of a street car who is charged with the duty of maintaining order and protecting passengers may exclude or expel therefrom any person who is so intoxicated as to be offensive to his fellow travelers,^*" or any person who, by reason of his intoxication or otherwise, is in such a condition as to render it reasonably certain that by act or speech he will become offensive and annoy the other passengers, although he has not committed any act of offense or annoyance.^®^ Co., 182 Mass. 123, 65 N. E. Rep. sential and Important as the 45, 28 Am. & Eng. R. Cas. (N. S.) authority to stop a disturbance or 294, (1902). repress acts of violence or breaches ="Eads v. Metropolitan Ry. Co., of decorum after they have been 43 Mo. App. 536, (1891) ; Robinson committed, and the mischief of an- V. Rockland St. Ry. Co., 87 Me. 387, noyance and disturbance have been 32 Atl. Rep. 994, 29 L. R. A. 530, done. Indeed, if the rule laid down (1895). at the trial be correct, then it would '^ Chicago, Burlington & Quincy follow that passengers in public ve- R. R. Co. v. Griffin, 68 111. 499, hides must be subjected to a cer- (1873). tain amount or degree of discom- "^ Murphy v. Union Ry. Co., 118 fort or Insult from evil disposed Mass. 228, (1875); Central Ry. Co. persons before the right to expel V. Mackey, 102 111. App. 15, (1902). them would accrue to a carrier or =°' Said Bigelow, C. J., in Vinton his servant. There would be no V. Middlesex R. R. Co., 11 Allen authority to restrain or prevent 304, 305, (1865) : "The right and profaneness. Indecency or other power of the defendants and their breaches of decorum in speech or servants to prevent the occurrence behavior, until It had continued of improper and disorderly conduct long enough to become manifest to In a public vehicle Is quite as es- the eyes or ears of other passen- § 371.] THE CAEErEE AND ITS PASSENGEE8. 599 § 371. Expulsion of persons while car is in motion — ^While it may be the duty of those in charge of a car, when ejecting an intruder, even though he be an adult, first to stop the car or reduce its speed to such a degree that, using due care, he may leave safely,^"* there seems to be sufficient reason for the rule gers. It Is obvious that any such restriction on the operation of the rule of law would greatly diminish Its practical value. Nor can we see that there is any good reason lor giving so narrow a scope to the authority of carriers of passengers and their agents as was indicated in the rulings of the trial. The only objection suggested is, that it Is liable to abuse and may become the instrument of oppression, but the same is true of many other salu- tary rules of law. The safeguard against an unjust or unauthorized use of the power Is to be found in the consideration that it can never be properly exercised except in cases where it can be satisfactorily proved that the condition or con- duct of a person was such as to render it reasonably certain that he would occasion discomfort or an- noyance to other passengers, If he was admitted into a public vehi- cle or allowed long to remain within it." See also Hudson v. Lynn Ry. Co., 178 Mass. 64, 59 N. E. Rep. 647, (1901). So a rule may be enforced which directs drivers to exclude intoxi- cated persons from the front plat- form. O'Neill V. Lynn & Boston R. R. Co., 155 Mass. 371, 29 N. E. Rep. 630, (1892). In the following cases it was held that intoxicated passengers may lawfully be removed from trains of general traffic roads; Railroad Co. V. Valleley, 32 Ohio St. 345, (1877) ; Pittsburgh & Connellsville R. R. Co. V. Pillow, 76 Pa. St. 510. (1874). See also New Orleans, St. L. & C. R. R. Co. V. Burke, 53 Miss. 200, (1876). Nor is a conductor bound to wait until some act of violence, profan- ity, or other misconduct is actually committed before exercising his authority to expel the oitender. It is sufficient if the offender, by means of intoxication, or other- wise. Is in such a condition as to render it reasonably certain that by act or speech he will become of- fensive or annoying to other pas- sengers. Edgerley v. Union St. Ry. Co., 67 N. H. 312, 36 Atl. Rep. 558, (1S92). But in Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y. 108, (1873). it was held that the manifest intoxication of a passen- ger does not in every case warrant his expulsion, and that the con- ductor has no right to remove him unless he is dangerous or annoy- ing to others. Where an intoxicated person en- tered a car and the conductor ac- cepted a coupon from a through ticket, it was held that he thereby accepted him as a passenger, and that, when another coupon was de- manded and the passenger was "too stupid with drink and sleep to an- swer," it was properly left to the jury to determine whether it was negligence to eject him. Clark v. Harrisburg Trac. Co., 20 Pa. Super. Ct. 76, (1902). "'Lovett V. Salem & South D'^n- vers R. R. Co., 9 Allen 557, (1865). 600 THE LAW OP STREET RAILWAYS. [§ 372. adopted by some coiirts, that wtetlier it is due and proper care to attempt to remove a person from a street car while it is in motion, even thongh he be intoxicated at the time, is ordinarily a question of fact for the jury, and not of law for the court. ^^^ But it has been held that it is such negligence as will render the com- pany liable, to compel a small child to jump from the platform of a moving car, even though he be a trespasser.^"" § 372. Criminal, malicious and reckless conduct of the carrier's servants — The contract on the part of the company is to safely carry its passengers and to compensate them for all unlawful and tortious injuries inflicted by its servants. It calls for safe carriage, for safe and respectful treatment from the carrier's servants, and for immunity from assaults by them, or by other persons if it can be prevented by them. JSTo matter what the motive is which incites the servant of the carrier to commit an improper act towards the passenger during the existence of the relation, the master is liable for the act and its natural and legitimate consequences.^"^ Hence, it is responsible for the insult- ing conduct of its servants, which stops short of actual violence, ^"^ ^''Healey v. City Pass. R. R. Co., Eastern R. R. Co. v. Flexman, 103 28 Ohio St. 23, (1875); Murphy v. 111. 546, (1882); Craker v. Chicago Union R. R Co., 118 Mass. 228, & N. W. R. R. Co., 36 Wis. 857, (1873) ; Plynn v. Central Park R. R. (1875) ; Taylor, Private Corpora- Co., 49 N. Y. Super. 81, (1883). tions (5th Ed.), sec. 347; Winne- Compare Sanford v. Eighth Ave. gar's Admr. v. Central Pass. Ry. R. R. Co., 23 N. Y. 343, (1861) ; Hig- Co., 85 Ky. 547, (1887) ; Tangner v. gins V. Watervliet Turnpike Co., 46 Southwest Missouri Elec. Ry. Co., N. Y. 23, (1871); Isaacs v. Third 85 Mo. App. 28, (1900); Birming- Ave. R. R. Co., 47 N. Y. 122, (1871) ; ham Ry. Co. v. Baird, 130 Ala. 334, Chicago City Ry. Co. v. Pelletier, 30 So. Rep. 456, 22 Am. & Eng. B. 134 111. 120, 24 N. E. Rep. 770, Cas. (N. S.) 909, (1901) ; Lima Ry. (1890). Co. V. Little, 67 Ohio St. 91, (1902); ^'"' Biddle v. Hestonville, Mantua and generally the cases cited under & Fairmount Pass. Ry. Co., 112 Pa. this section. St. 651, (1886); Pittsburgh, Alle- ™^LaFitte v. New Orleans & gheny & Manchester Pass. Ry. Co. Lake R. R. Co., 43 La. Ann. 34, 8 So. v. Donahue, 70 Pa. St. 119, (1871). Rep. 701, 12 L. R. A. 337, (1890). See also Day v. Brooklyn City R. Where a conductor, in ejecting a R. Co., 12 Hun 435, (1877), and see person, used insulting and abusive sec. 365, ante. language to him, he may recover for "'"■ Goddard v. Grand Trunk Ry. injuries to his feelings, but not be- Co., 57 Me. 202, (1861) ; Chicago & cause the words tended to bring him 3Y2.J THE CAEEIEB AND ITS PASSENGEES. 601 and for wanton or negligent conduct. Under this rale it will be liable for the act of its driver in recklessly throwing a passenger off the car,^°^ for compelling a boy to jump off while the driver is whipping up his horses into a trot,^"* for violently shoving a passenger off the car while in motion, ^"^ for the usie of excessive or unnecessary violence in expelling a passenger from the car,^"^ for the malicious and willful acts of its servants performed within the scope of their employment, ^"^ for a criminal assault upon a into ignominy and disgrace. South- ern Kansas Ry. Co. v. Hinsdale, 38 Kan. 507, 16 Pac. Rep. 937, (1888) ; Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, (1892); Franklin v. Third Ave. R. R. Co., 52 App. Div. (N. Y.) 512, (1900); Knoxville Trac. Co. v. Lane, 103 Tenn. 376, 53 S. W. Rep. 557, 46 L. R. A. 549, (1899) ; Vassau V. Madison Elec. Ry. Co., 106 Wis. 301, (1900). "Lyons v. Broadway & Seventh Ave. Ry. Co., 10 N. Y. Supp. 237, (1890) ; Denver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. Rep. 557, (1894). '"Day V. Brooklyn City R. R. Co., 12 Hun. 435, (1877). "^Flynn v. Central Park R. R. Co., 39 N. Y. Super. 81, (1885). The fact that a person ejected from a car was a mere trespasser will not excuse the company, if the conductor failed to act in a pru- dent manner. North Chicago City Ry. Go. V. Gastka, 128 111. 613, (1889) . And in Missouri it has been held that the carrier is responsible for the malicious injury of a passenger by its servant, whether done in the line of his employment or not, if done in the course of the discharge of his duty to the master which re- lates to the passenger; but is re- sponsible for such acts to a tres- passer only when the act is in the line of the servant's employment. Eads V. Metropolitan Ry. Co., 43 Mo. App. 536, (1891). "'» Wallace v. Taunton St. Ry. Co., 119 Mass. 91, (1875); Lyons v. Broadway & Seventh Ave. Ry. Co., 10 N. Y. Supp. 237, (1890) ; Haman V. Omaha Horse Ry. Co., 35 Neb. 74, 52 N. W. Rep. 830, (1892). A police officer, who, in response to the invitation of the conductor, assists in ejecting a passenger, be- comes a special agent of the com- pany for that purpose, and is sub- ject to the same rule in regard to excessive violence. Jardlne v. Con- nell, 50 N. J. L. 485, 14 Atl. Rep. 590, (1888). "" Winterson v. Eighth Ave. R. R. Co., 2 Hilt. 389, (1859) ; Pittsburgh, Allegheny & Manchester Ry. Co. v. Donahue, 70 Pa. St. 119, (1871); Shea V. Sixth Ave. R. R. Co., 62 N. Y. 180, (1875) ; Eads v. Metropolitan Ry. Co., 43 Mo. App. 536, (1891); McCann v. Sixth Ave. R. R. Co., 117 N. Y. 505, (1889), reversing 56 N. Y. Super. 282, the last two cases re- lating to persons not passengers but temporarily and lawfully on the car; Meyer v. Second Ave. R. R. Co., 8 Bosw. 305, (1861); Jackson V. Second Ave. R. R. Co., 47 N. Y. 274, (1872) ; Sanford v. Eighth Ave. R. R. Co., 23 N. Y. 343, (1861); Higgins V. Watervliet Turnpike Co., 46 N. y. 23, (1871); Whitaker v. Eighth Ave. R. R. Co., 51 N. Y. 295, 602 THE LAW OF STEEET EAILWAT8. [§ 372. passenger,*"' or for assault and battery while ejecting a passen- ger.*"* But a passenger may forfeit his right to recover damages for an assault which he has provoked by his own misconduct.*^" (1873). But see McKeon v. Citi- zens' Ry. Co., 42 Mo. 79, (1867); Isaacs V. Third Ave. R. R. Co., 47 N. Y. 122, (1871); Lyons v. Broad- way & Seventh Ave. R. R. Co., 10 N. Y. Supp. 237, (1890). In support of the proposition in the text, see also Stewart v. Brook- lyn & Crosstown R. R. Co., 90 N. Y. 588, (1882); Schultz v. Third Ave. R. R. Co., 89 N. Y. 242, (1882) ; Murphy v. Central Park. North & East River R. R. Co., 48 N. Y. Super. 86, (1882); Healey v. City Pass. R. R. Co., 28 Ohio St. 23, (1875); Mo- Cann v. Sixth Ave. R. R. Co., 117 N. Y. 505, (1889), reversing 24 J. & S. 282; Koetter v. Manhattan Ry. Co., 13 N. Y. Supp. 458, (1891) ; Cohen v. Dry Dock, East Broadway & Bat- tery R. R. Co., 69 N. Y. 170, (1877), affirming 40 N. Y. Super. 368^; High- land Ave. & Belt R. R. Co. v. Winn. 93 Ala. 306, 9 So. Rep. 509, (1890); Highland Ave. Ry. Co. v. Robinson, 125 Ala. 483, 19 Am. & Eng. R. Cas. (N. S.) 357, (1900); Schwartzman v. Brooklyn Heights Ry Co., 84 App. Div. (N. Y.) 608, (1903); Aiken v. Holyoke St. Ry. Co., 184 Mass. 269, (1903); Carroll v. Boston St. Ry. Co., 186 Mass 97, (1904); Davis v. Ottawa Elec. Ry. Co., 28 Ontario Rep. 654, (1898). ""Stewart v. Brooklyn & Cross- town R. R. Co., 90 N. Y. 588, (1882); Winneg^r v. Central Pass. Ry. Co., 85 Ky. 547, 553, (1887); Common- wealth V. Brockton St. Ry. Co., 143 Mass. 501, (1887); Feeney v. Brook- lyn City R. R. Co., 36 Hun 197, (1885), holding that the action is not for breach of contract, but for the wrong done to the pas- senger whose rights are guaraa- teed by the contract; Shea v. Sixth Ave. R. R. Co., 5 Daly 221, (1874), distinguishing Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122, (1871), of which the court said: "In that case no process of reasoning could construe the act of the conductor into any resemblance of an act per- formed in the scope of employment or under authority;" Hamilton v. Third Ave. R. R. Co., 13 Abb. Pr. N. S. 318, 35 N. Y. Super. 118, (1873). '" Morris V. Atlantic Ave. R. R. Co., 116 N. Y. 552, (1889); Smith v. Manhattan Ry. Co., 18 N. Y. Supp. 759, (1892), aff'd in 138 N. Y. C23, (3893); Winnegar's Admr. v. Cen- tral Pass. Ry. Co., 85 Ky. 547, (1887) ; Johnson v. Detroit Ry. Co., 130 Mich. 453, 90 N. W. Rep. 274, 26 Am. & Eng. R. Cas. (N. S.) 827, (1902). •"■ Scott v. Central Park, North & East River R. R. Co., 53 Hun 414, C N. Y. Supp. 382, (1889), where the passenger began an altercation with the driver and used abusive and insulting language to him which was calculated to provoke an as- sault; Flynn v. Central Park R. R. Co., 49 N. Y. Super. 81, (1883), in v/hich it appears that the passen- ger used abusive and insulting lan- guage to the conductor and made threats of future injury. See also Harrison v. Fink, 42 Fed. Rep. 787, (1890), in which it was held that a passenger cannot claim damages on account of the conductor drawing a pistol on him and speaking of him as a coward to the other passengers, if the conductor's conduct was pro- voked and caused by the act of the passenger; James t. Metropolitan i 372.] THE CAEEIEB AND ITS PASSENGEE3. 603 The liability of the master for intentional acts which constitute legal wrongs can only arise when the acts complained of are within the apparent scope of the master's business. ^^^ Therefore, St. Ry. Co., 80 App. Div. (N. T.) 364, (1903). But in Chicago & Eastern R. R. Co. V. Flexman, 103 111. 546, (1882), it was held that the company was liable for the act of the brakeman in striking a passenger with his lantern, notwithstanding he was provoked to the act by the passen- ger charging him with having stolen his watch; and In Haman v. Omaha Horse Ry. Co., 35 Neb. 74, 52 N. W. Rep. 830, (1892), the court decided that words of provocation alone (the passenger called the conductor a s — of a b — In an alter- cation about the payment of fare) did not justify an assault, although they might constitute a ground for mitigation of damages. See also Hanson v. Urbana Ry. Co., 75 111. App. 474, (1897); Weber v. Brook- lyn Ry. Co., 47 App. Dlv. (N. Y.) 306, (1900). ""Central Ry. Co. v. Peacock, 69 Md. 257, (1887). But it was held In this case that if, while the car stopped momentarily at the stable, the passenger stepped out for the especial purpose of making com- plaint, and his intention to return and resume his journey had been made known to the company's serv- ants in charge of the car, he might still have retained the relation to the company of a passenger and been entitled to all legal rights as such, as fully as If he had remained within the car. See also Keokuk Northern Line Packet Co. v. True, 88 111. 608, (1878); JefferscnvlUe, M. & I. R. R. Co. v. Riley, 39 Ind. 668, (1872); State v. Grand Trunk Ry. Co., 58 Me. 176, (1870); Chicago City Ry. Co. v. Mogh, 44 111. App. 17, (1891); Graham v. St. Charles St. Ry. Co., 47 La. Ann. 1C56, 18 So. Rep. 707, 27 L. R. A. 416, (1895); Wise v. Covington & Cincinnati St. Ry. Co., 91 Ky. 537, 16 S. W. Rep. 351, (1891); McGilvray v. West End St. Ry. Co., 164 Mass, 122, 41 N. B. Rep. 116, (18D5); Palmer v. Winston-Salem Ry. Co., 131 N. C. 250, 42 S. E. Rep. 604, 28 Am. & Eng. R. Cas. (N. S.) 431, (1902). In a Georgia case it was held that a street railway company was responsible to a passenger fcr a battery by the conductor, commit- ted first on the car and repeated shortly afterwards at the office of the company, whither the passen- ger had gone to make complaint to the superintendent. The passen- ger was badly beaten, kicked, cut with a knife, and his arm broken; but it was Impossible to determine from the evidence where the most serious wounds were inflicted, whether on the platform of the car or shortly afterwards at the office. Savannah St. R. R. Co. v. Bryan, 86 Ga. 312, (1890). A motorman who leaves his car and assaults the driver of a teim on the tracks is not acting within the scope of his employment and the company is not liable. Rud- geair v. Reading Trac. Co., 180 Pa. St. 333, 36 Atl. Rep. 859, 8 Am. & Eng. R. Cas. (N. S.) 112, (1897). Nor is a company bound by its in- spector's act in taking an injured passenger to a surgeon. Hanscom V. Minneapolis St. Ry. Co., 53 Minn. 119, 20 L. R. A. 695, 54 N. W. Rep. 943, (1893). 604 THE LAW OF STEEET EAILWAYS. [§373. the master is not liable for an act committed by his servant after he has stepped aside from his employment to commit a tort. Thus the act of a street-ear driver in making an assault on a passenger who has just left the car and gone to the sidewalk, for the purpose of making a complaint at the company's office against the driver, is not a tort for which the employer can be held responsible, although the assault was prompted by a quarrel between the driver and the passenger before the latter left the car. Although a conductor, who forcibly ejects a passenger from his car under the honest but mistaken belief that his fare had not been paid, may thereby render his employer responsible for his act, he is not liable in a criminal prosecution for an assault,*^^ and his employer will be liable for compensatory damages only.^^' § 373. False arrest and malicious prosecution. — A private cor- poration is civilly liable for false arrest or malicious prosecution caused by its agents acting within the general scope of their authority, the same as an individual. From this general state- ment of the rule it follows that a private corporation engaged in business as a common carrier is liable for the act of one of its servants, who, in the course of his employment, although without express authority, unlawfully causes the arrest or imprisonment of a passenger.^" °'= State of Missouri v. McDonald, Prosecution, pp. 101, 217, 223, 285; 7 Mo. App. 510, (1879). Wood on Railroads (Minor's Ed.), ™Plne V. St. Paul City Ry. Co., sec. 333; Beach on Contrib. Neg. 50 Minn. 144, 52 N. W. Rep. 392, (3d Ed.), sec. 286; Lezlnsky v. Met- (1892). See also sec. 409, post. ropoUtan St. Ry. Co., 88 Fed. Rep. ""Corbett v. Twenty-Third St. Ry. 437, 31 C. C. A. 573, (1898) ; "Waters Co., 42 Hun 587, (1886); Rown v. v. West Chicago Ry. Co., 101 111. Christopher & Tenth Sts. R. R. Co., App. 265, (1902). 34 Hun 471, (1885) ; Hofeman v. But In La Fitte v. New Orleans & New York Central & Hudson River Lake R. R. Co., 43 La. Ann. 34, 8 R. R. Co., 87 N. Y. 25, (1881) ; Lynch So. Rep. 701, 12 L. R. A. 337, (1890), V. Metropolitan Elevated R. R. Co., it was held that a street railway 90 N. Y. 77, 43 Am. Rep. 141, (1882), company Is not liable in an action affirming 24 Hun 506; Krulevitz v. for malicious prosecution for the Eastern R. R. Co., 143 Mass. 228, act of a driver of one of Its cars in 9 N. E. Rep. 613, (1887); Purdy's causing the arrest of a passenger Beach on Prlv. Corp., sees. 969, 1025; on the charge of passing counter- Mora wetz on Priv. Corp. (2d Ed.), felt money, such an act not being sees. 726, 727; Newell on Malicious within the scope of his employ- § 374.J THE CAHEIEE AND ITS PASSENGBES. 605 § 374. Injury of one passenger by another It is the duty of a company carrying passengers in ears not only to exclude those who are known to be intoxicated and likely to be otherwise offen- sive or dangerous to other passengers, but also, if such persons enter a car, either to expel them or to compel them to preserve order and observe the reasonable rules of the company and the rights of other travelers.^^° But the carrier is not liable for an injury to one of its passengers caused by the conduct of other passengers unless it was tmusual and disorderly and could have been prevented by those who had charge of the car at the time,^^* nor for injuries resulting from an unexpected assault by another passenger if the conductor interfered and separated the parties as promptly as possible.^-^^ But it has been held that when a ment. The decision seems to have turned on the point that the com- pany had no interest in the arrest or prosecution, as the loss occa- sioned by accepting such a coin would fall upon the driver. A some- what similar ruling was made in an English case, in which it was held that where the conductor de- tained a passenger and gave him into custody on a charge of pass- ing bad money, his employer, a tramway company, would not be lia- ble, where its charter limited the right of its officers or servants to detain any person defrauding the company of its fare, to such officers or servants only as were appointed for that purpose, and the company gave its conductors printed instruc- tions in which it was ordered that, except in cases of assault, conduc- tors must not give passengers into custody without the authority of an inspector or a time-keeper. Charleston v. London Tramways Co., 36 Weekly Rep. 367, (1888). But see Furlong v. South London Tramways Co., 1 Cababe & Ellis, 316, (1884). See also Cunningham V. Seattle Elec. Ry. Co., 3 Wash. 471, 28 Pac. Rep. 745, (1892) ; Cen- tral Ry. Co. V. Brewer, 78 Md. 394, 28 Atl.-Rep. 615, 27 L. R. A. 63, (1894); West Chicago St. Ry. Co. V. Luleich, 85 111. App. 643, (1899). ='' Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y. 108, (1873); New Orleans, St. Louis & Chicago R. R. Co. v. Burke, 53 Miss. 200, (1876); Pittsburgh, Ft. Wayne & Chicago Ry. Co. v. Hinds, 53 Pa. St. 512, (1866) ; Holly v. Atlanta St. R. R. Co., 61 Ga. 215, (1878); Ran- dall V. Frankford, Southwark & Philadelphia City Pass. Ry. Co., 139 Pa. St. 464, 22 Atl. Rep. 639, (1891) ; Cross V. Detroit Citizens' Ry. Co., 120 Mich. 137, 79 N. W. Rep. 11, (1899); United Rys. Elec. Co. v. Deane, 93 Md. 619, 49 Atl. Rep. 923, 54 L. R. A. 942, (1901). =1° Randall v. Frankford, South- wark & Philadelphia City Pass. Ry. Co., supra; Spade v. Lynn Ry. Co., 172 Mass. 488, 52 N. E. Rep. 747, 43 L. R. A. 832, (1899) ; Cobb v. Boston Ry. Co., 179 Mass. 212, 60 N. B. Rep. 476, (1901). "' Mullan V. Wisconsin Central R. R. Co., 46 Minn. 474, 49 N. W. Rep. 249, (1891); Springfield Consolidated Ry. Co. v. Flynn, 55 111. App. 600, (1894). 606 THE LAW OF BTEEET EAILWAYB. [§ 374. passenger is injured by riotous fighting among other passengers in a car on which there is no conductor, it is for the jury to say, from all the facts, whether the company was negligent in not pro- viding a suitable conductor to preserve order, as well as to decide whether the driver was negligent in the performance of his duty.^^* So the carrier may be liable for injuries inflicted by one passenger upon another, which stops short of actual violence or willful mis- conduct, as where he is jostled and thrown from the car by others in their haste to leave it, when the conductor fails to take proper precautions to prevent such accidents,*^* ''' Holly V. Atlanta St. R. R. Co., 61 Ga. 215. (1878). In Putnam v. Broadway & Sev- enth Ave. R. R. Co., supra. It was held that the company was' not re- sponsible for the death of a pas- senger assaulted after he left the car. The passenger who made the assault was Intoxicated and had been riding upon the front plat- form. The one who was afterwards killed was inside of the car accom- panied by ladies. The one on the front platform opened the door and addressed an insulting remark to the ladies, whereupon their escort appealed to the conductor to protect the ladies from such Indignities. Thereupon the conductor requested him to be quiet and returned to the rear platform. Before returning to the front platform, the Intoxicated passenger took a seat near the one who had made complaint and made some threats against him which the conductor did not hear, and then resumed his position on the front platform. When the passenger who had been threatened left the car shortly afterwards, the drunken passenger seized a hook and struck him on the head. Inflicting fatal In- juries. The point was made that the conductor should have removed the assailant from the car as soon as he discovered that he was In- toxicated. But the court said "The fact that an Individual has drank to excess will not In every case warrant his expulsion; It Is rather the effect upon him, and the fact that, by reason of the Intoxication, he Is dangerous or annoying to others, that gives the right and Im- poses the duty of expulsion." "•Kreusen v. Forty-Second St., Manhattanville & St. Nicholas Ave. R. R. Co., 13 N. Y. Supp. 588, (1891) ; Lott V. New Orleans City & Lake R. R. Co., 37 La. Ann. 337, (1885); Jarmy v. Duluth St. Ry. Co., 55 Minn. 271, 56 N. W. Rep. 813, (1893); Gilmcre v. Brooklyn Heights Ry. Co., 6 App. DIv. (N. T.) 117, (1896); Furgason v. Citizens' St. Ry. Co., 16 Ind. App. 171, (1896); Hansen v. North Jersey St. Ry. Co., 64 N. J. L. 686, 46 Atl. Rep. 718, (1900); Williamson v. St. Louis Transit Co., 202 Mo. 345, 100 S. W. Rep. 1072, (1907); sec. 383, post, note 76. The negligence of a conductor In permitting a car to be overcrowded was held to be the proximite cause of injury to a passenger who was pushed oft the car by another pas- senger while trying to get into a position to alight. Knalsch v. .lollne et al.. Receivers of Metro- §§ 375, 376.] THE CAEEIEB AND ITS PASSENGEES. 607 §375. Nature of the passenger's action for damages— The action for personal injuries sustained by a passenger through the negligence of his carrier may be for a tort for breach of dnty as a common carrier, or may sound in contract for breach of the specific duty to carry.^^" As the declaration or petition is usually framed, the liability of a carrier for injuries to one of its passen- gers, caused by the negligence of its agent, is in its essential ingredients one based on a tort, even though the occurrence be one for which the passenger was at liberty to sue either in damages for a breach of the specific contract to carry or for the mere negligence of the carrier.«-i Therefore, it has been held that an action may be maintained by a master for injuries to his apprentice who takes passage on a street car for hire paid by the apprentice in the absence of the master, because the tort does not consist merely of a breach of contract. ^^^ § 376. Care and custody of articles left in car.— Where a street railway company makes it the duty of its agents to take charge of property left by passengers in its cars and provides at its depot or elsewhere a place for its safe-keeping where the owner may apply for it, it must be deemed part of its business to take charge of such property, and it is responsible therefor as a bailee. It does not thereby incur the extraordinary liability of common earners of merchandise; but if, by regulation as incidental to its busmess, it undertakes to care for such property and restore it to the custody of the proper person on application, the specific com- 4lT mfn; ^''- ^°" ''' ""■ ""■ ^"^^- ^"""^"*^ ^ °^^^^'^ (3d Ed.), sees. Hi, (1310). 558^ 5g9_ 5g^_ -Jacksonville St. Ry. Co. y. -Ames v. Union St. R. R. Co Chappell, 22 Pla. 616, (1886); Balti- 117 Mass. 541 (1875) r MH^",^. ""ffct^^- ^°- "■ ''''°^' ^'^^'^ '""^ declaration Is for a motfon/ ' "*''^= '^"' '^'' °^ "''''''' °' '=°«tract, an averment motion for re-argument, 61 Md. 619, that the plaintiff was "on" a car •a a V u „ ^^^ ^^^^ '* thereby became the duty Suburban Ry. Co. v. Brauss, of the company "to guard protect le^- I'm '^'''^ ''JT' " ^^^- '''' ^^'^'^ *^« P'^'°*^ --^"e 'e- Sr 44 f,tt7^\ ""■ ^- ''°- '' *°^ '''' ^"•" '^ °°t ^"ffl^'<^°t. as It "un 44, (1885); Delaware, Lacka- fails to ntate any facts giving rise wanna & Western R. R. Co. v. to such duty. Breese v Trenton Trautwem, 52 N. J. L. 169, 19 Atl. Horse R. R. Co., 52 N J L 250 Rep. 178, (1890). See Schouler, (1890). ' 608 THE LAW OF STEEET KAILWATS. [§ 376. pensation it receives for the carriage of the passenger is sufficient to constitute it a bailee for hire, while the property remains in its custody.^^ ^^ A passenger left a satchel in a street car which the conductor took charge of, and on the return trip he placed it in the car of an- other employee of the company, by whom it was delivered to a person who had no right to claim it. It was held that the defendant com- pany was liable to the owner as for a conversion. Morris v. Second Ave. R. R. Co., 1 Daly 202, (1867). But a case in Pennsylvania seems to have been decided upon a dif- ferent theory. A conductor on ar- riving at the end of the route, after all the passengers had left the car, found on one of the seats a pocKet- book containing more than $100.00 in money, which he immediately took and delivered to the represen- tative of the company at its office. Afterwards the finding of the pock- etbook was advertised, but no per- son appeared to claim It; and, there being no means of identifying the property or discovering its owner, after the lapse of a year the con- ductor demanded of the company's agents a return of the pocketbook and Its contents to himself, and upon a refusal to deliver he brought suit. It was held that, as the title of the finder of a chattel who acts with fairness is superior to that of any person except the owner, the conductor was entitled to maintain action for Its value. Tatum v. Sharpless, 6 Phila. 18, (1865). CHAPTEK XIII. PRINCIPLES OF THE LAW OP NEGLIGENCE FREQUENTLY INVOLVED IN STREET RAILWAY LITIGATION, AND APPLI- CABLE ALIKE TO CASES ARISING BETWEEN THE RAIL- WAY COMPANY AND THE GENERAL TRAVELING PUBLIC, AND ACTIONS BETWEEN THE CAR- RIER AND ITS PASSENGERS. ( 377. Introductory. 378. Contributory negligence. 379. Comparative negligence. 380. Liability notwithstanding neg- ligence of injured person — ■ subsequent negligence — last chance. 381. Burden of proof as to negli- gence of injured person. 382. Voluntary exposure to dan- ger to save human life. 383. Imminent peril — attempts to escape apparent danger. 384. Extricating injured person. 385. Contributory negligence of children. 386. Contributory negligence of aged and infirm persons. 387. Contributory negligence of parents — what constitutes. 388. Poverty as affecting the ques- tion of parents' negligence. 389. Imputing to children the neg- ligence of their parents, guardians or other custo- dians. 390. Negligence of parents as af- fecting their right to dam- ages. 391. Imputing negligence of par- ent or other custodian to the personal representative of the infant. 392. Negligence of husband not imputable to wi€e. 393. Imputing negligence of driver of private vehicle to fellow- passenger. § 394. Negligence of independent contractor. 395. Intoxication as evidence of negligence. 396. Criminal negligence. 397. Exclamations of pain. 398. Declarations of injured per- son. 399. Declarations and conduct of defendant's servants — priv- ileged communications. 400. Declarations of third persons. 401. Evidence of other accidents. 402. Precautions adopted after ac- cident. 403. Opinion evidence — time and distance within which cars and other vehicles may be stopped. 404. Pleading — variance between pleading and proof. 405. Liability of stockholders and directors for obligations growing out of torts. 406. The release of and satisfac- tion by one of two joint tort-feasors discharges all. 407. Physical inspection, examina- tion and tests. 408. Fright and its consequences — proximate cause. 409. Elements and measure of damages in personal injury cases. 410. Exemplary and punitive dam- ages. 609 610 THE LAW OF STEEET RAILWAYS. [§§ 377, 378. § 377. Introductory — Chapter XI treated of the law of neg- ligence as applied to the duties, rights and liabilities of street railway companies and others in the lawful use of the highway; while in Chapter XII an attempt was made to state and apply those rules of law which define the mutual rights, duties and liabilities of such common carriers and their passengers. Many of the principles of the law of negligence, being equally appli- cable to the subjects considered in those chapters, could not con- veniently be treated in either as fully as their importance seemed to demand. This chapter, therefore, will be devoted to the con- sideration of those general principles of the law of negligence of practical importance and frequent application in street railway litigation, many of which have been passed upon and definitely settled by the courts of final jurisdiction in the states where they have arisen. §378. Contributory negligence — Except in a few jurisdic- tions^ and in admiralty cases, the rule prevails everywhere in the United States as well as in Canada, that negligence which directly contributes to an injury, either of person or of property, is a bar to an action against another whose concurrent negligence directly contributed to the same injury. This proposition is so firmly established that it is unnecessary to support it by the cita- tion of cases. It is sustained by almost innumerable decisions. A recovery will be barred, not only by an omission to exercise ordi- nary care, but also by slight negligence which is a proximate cause of the injury complained of.^ It need not be the sole cause of the injury, but it is sufficient to bar a recovery if it be one of two ov more concurring efficient causes of the injury.* But in order to ' See post, sec. 379. v. Calderwood, 89 Ala. 247, 7 So. ' Long V. Milford, 137 Pa. St. 122, Rep. 360, (1889) ; Trousclair v. Pa- 20 Atl. Rep. 425, (1890); Schcen- ciflc Coast Steamship Co., 80 Cal. field V. Milwaukee City Ry. Co., 74 521, (1889) ; Cicero & Provico St. Wis. 433, 435, 43 N. W. Rep. 162, Ry. Co. v. Snider, 72 111. App. 300, (1889); Denman v. Johnston, 85 (1897). Mich. 387, 48 N. W. Rep. 565, See Cincinnati St. Ry. Co. v. (1891) ; Scott V. Third Ave. R. R. Wright, 54 Ohio St. 181, 32 L. R. A. Co., 59 Hun 456, 36 N. Y. St. Rep. 340, (1896); Holwerson v. St. Louis 838, (1891). Ry. Co., 157 Mo. 216, (1900); Dix " North Birmingham St. R. R. Co. v. Ridge Ave. Pass Ry. Co., 15 Pa. § 378.] THE LAW OF NEGLIGEITCE. 611 defeat an action on the ground of contributory negligence, it must have been a direct and proximate, and not an indirect and remote, cause of the injury for which the action is brought.* The mere fact that the injured person was guilty of some negligence, at or immediately preceding the time he was injured, is not a bar to a recovery unless it directly contributed to the resulting dam- ages.® Eut an act which is willful is not negligence. Therefore, although a person negligently exposes himself to danger, if another maliciously, or by an act so wanton and heartless as to exhibit a reckless indifference to human life, injures him, the former is not guilty of contributory negligence. The law makes a clear distinc- tion between acts which are willful and those which are merely negligent; and the courts hold that the negligent act of the plaint- iff cannot be considered contributory to the willful act of the de- fendant.* If one placed in a position of danger through the negli- gence of another fails to pursue the best course to escape the im- pending peril, he is not for that reason necessarily guilty of con- tributory negligence.^ But this rule does not apply where the per- son injured is placed in imminent peril by his own fault.* A Super. Ct. 350, (1900); Gamble v. Chicago, St. Louis & Pittsburgh R. Akron B. & C. R. R. Co., 63 Ohio R. Co.. 112 Ind. 250, (1887) ; Battls- St. 352, (1900). hill V. Humphreys, 64 Mich. 494, 38 •Meyer v. People's Ry. Co., 43 N. W. Rep. 581, (1888); Banks v. Mo. 523, (1869) ; Thirteenth & Fif- Highland St. Ry. Co., 136 Mass. 485, teenth St. Pass. Ry. Co. v. Boudrou, (1884) ; Central R. R. & Banking 92 Pa. St. 475, (1880) ; Button v. Co. v. Denson. 88 Ga. 774, 11 S. E. Hudson River R. R. Co., 18 N. Y. Rep. 1039, (1890); Johnson v. Su- 248, (1858); Healey v. Dry Dock, perior R. T. Co., 91 Wis. 233, 64 East Broadway & Battery R. R. Co., n. W. Rep. 753, (1895) ; Harrington 46 N. Y. Super. 473, (1881); John- v. Los Angeles Ry. Co., 140 Cal. son v. Hudson River R. R. Co., 5 514 (1903) Duer 21. 27, (1855) ; Isbell v. New ,'^.^^^^^ ^ Central Park, North l"^ l.^'T„?„^^''^ ^- ^- ^°- ^^ & East River R. R. Co.. 12 N. Y. Conn. 393, (1858). ' Smithwick v. Hall & Upson Co., 59 Conn. 2G1, 21 Atl. Rep. 924, (1890) ; Fernandes v. Sacramento Supp. 347, (1889); North Chicago St. R. R. Co. V. Louis, 35 111. App. 477, (1889), reversed on other City Ry. Co., 52 Cal. 45, (1877); ^""""^^ '° ^7 N. E. Rep. 451, (111., Thirteenth & Fifteenth St. Pa'S. ■^^^^^• Ry. Co. V. Boudrou, 92 Pa. St. 475, See also sec. 383, post, note 76. (1880). »Noyes v. Southern Pacific R. R. 'Steinmetz v, Kelly. 72 Ind. 442. Co., 92 Cal. 285. 28 Pac. Rep. 927, 37 Am. Rep. 170, (1880) ; Palmer v. (1891). 612 THE LAW OF STREET EAILWAYS. [§ 379. traveler who takes passage on the vehicle of a common carrier, while in such a condition that a personal injury would be excep- tionally serious in its results, cannot be held guilty of negligence fur that reason alone, if the passenger's condition be such that, if the servants of the carrier exercise the degree of care which the law exacts for the benefit of passengers generally, no injury will result.® When the facts are clearly stated, and the care which common prudence dictates can readily be discerned from undis- puted evidence, the question of contributory negligence is to be decided by the court as a question of law;^" but when the facta are doubtful because of a conflict in the evidence, or when they are such that it is doubtful whether the act imputed to plaintiff as negligence was such that a person of ordinary prudence would have performed it, it is to be submitted to the jury under instruc- tions from the court. ■^^ Where there is an issue as to the negligence of both parties to the action and some evidence in support of the claim of each, it is error for the court in instructing the jury not to present the effect of contributory negligence as well as the carelessness of the defendant.-'^ §379. Comparative negligence — The doctrine of compara- tive negligence permits a recovery although the plaintiff, or the person on account of whose injuries the action is prosecuted, was guilty of contributory negligence, or negligence which directly contributed in some degree at least to the injuries for which damages are sought. It is sometimes said that this doctrine pre- "It is not contributory negli- Ry. Co., 52 Cal. 45, (1877); Chicago gence for a woman, advanced in City Ry. Co. v. Brady, 35 111. App. pregnancy, to ride on a street car; 460, (1889); Swift v. Staten Island and, if injured by the negligence Rapid Transit R. R. Co., 123 N. Y. of the company, she is entitled to 645, 25 N. E. Rep. 378, (1890), af- recover damages for a miscarriage, firming 5 N. Y. Supp. 316; Weber and long illness and permanent in- v. Kansas City Cable Ry. Co., su- juries caused thereby. Reading pra; Harmon v. Washington & City Pass. Ry. Co. v. Eckert, 2 Cent. Georgetown R. R. Co., 7 Mackey 791, (1886). See also sec. 409, post. 255, (1889); Davidson v. Schuylkill "Pernandes v. Sacramento City Trac. Co., 4 Pa. Super. Ct. 86, Ry. Co., 52 Cal. 45, (1877); Weber (1897). V. Kansas City Cable Ry. Co., 100 ^^Wilmott v. Corrigan Consoli- Mo. 194, (1889). dated St. Ry. Co., 106 Mo. 535, "Fernandes v. Sacramento City 17 S. W. Rep. 490, (1891). § 379.J THE LAW OF NEGLIGETfCE. 613 vails only in the state of Illinois," or that it is recognized and followed in Illinois and Tennessee," or in Illinois, Georgia and Tennessee,^® but not elsewhere. Neither statement is correct. Some of the earlier cases in Illinois adopted a more radical departure from the rule of contributory negligence than we find recognized in the later decisions of that state. The rule as finally developed and established there is, that slight negligence of the injured person contributing to his injury will not preclude a recovery; but that a want of ordinary care will constitute a bar to the action, even if the defendant was guilty of gross negli- gence.^* A similar doctrine prevails in Oregon and Kansas. ^'^ Georgia follows a rule peculiarly her own ; for in that state it is held that if the defendant was guilty of the greater negligence or wrong, he must be considered the original aggressor and be account- able accordingly to the plaintiff, notvrithstanding the negligence of the latter, whose contributory negligence, however, must be considered in mitigation of damages. This rule was long ago established and has since been carried into the code.^* The "Wharton on Negligence (2d Ed.), sec. 334. "Shearman & Redfield on Neg- Ugence (5th Ed.), sees. 102, 103. " Patterson, Railway Accident Law, p. 59. " Toledo, St. Louis & K. C. R. R. Co. V. Cline, 135 111. 41, 25 N. E. Rep. 846, (1890). See also Stratton V. Central City Horse Ry. Co., 95 111. 25, (1880) ; Quincy Horse Ry. & Carrying Co. v. Gruse, 26 111. App. 397, (1887); Chicago City Ry. Co. v. Lewis, 5 111. App. 242, (1879) ; Wa- hash, St. Louis & Pacific R. R. Co. V. Wallace, 110 111. 114, (1884); West Chicago St. Ry. Co. v. Egan, 74 111. App. 443, (1897). " Holstine v. Oregon & California R. R. Co., 8 Ore. 163, (1879), hold- ing that slight negligence will not prevent a recovery if the negli- gence of the defendant was gross; Bequette v. People's Transporta- tion Co., 2 Ore. 200, (1867), decid- ing that the absence of care on plaintiff's part, not amounting to want of ordinary care, will not ex- cuse gross negligence in the de- fendant; Wichita & Western R. R. Co. V. Davis, 37 Kan. 743, 16 Pac. Rep. 78, (1887). '^ Macon & Western R. R. Co. v. Davis, 27 Ga. 113, (1859) ; sec 3034, of the Georgia code of 1873, which was construed in Central R. R. Co. V. Gleason, 69 Ga. 200, 203, (1882) ; Macon St. Ry. Co. v. Holmes, 103 Ga. 653, 30 S. E. Rep. 563, 12 Am. & Eng. R. Cas. (N. S.) 385, (1898) ; Atlanta Ry. Co. v. Walker, 112 Ga. 725, (1901). Civ. Code 1895, sec. 2322, provides that if both plaintiff and defendant are at fault, plaintiff may recover, but that the damages shall be di- minished in proportion to the amount of fault attributable to him. A plaintiff cannot recover unless the defendant's fault was greater 614 THE LAW OF STKEET EAILWATS. [§ 379. Georgia doctrine prevailed in full force and vigor in Tennessee,^' until repudiated by later decisions.^** Kentucky has a statute ■which provides that a railroad company shall be liable for injuries caused by gross negligence, notwithstanding the contributory negli- gence of the person injured ; but it is held that it applies only to cases where death results.*^ Where not controlled by statute, the than his own. Macon Ry. Co. v. Carger, 4 Ga. App. 477, 61 S. E. Rep. 882, (1908). "Dush V. Fltzhugh, 2 Lea (Tenn.) 307, (1879). Shearman & Redfield In the 5th Ed. of their treatise on Negligence, at sec. 103, refer- ring to this and other cases, say: "In Tennessee, under peculiar statutes, the plaintiff's contributory negligence, unless the direct cause of his own injury, seems, In actions against railroad companies, not to be a bar to his action, but to be considered In mitigation of dam- ages." But In Louisvl le, Nashville & Great Southern R. R. Co. v. Fleming, 14 Lea (Tenn.) 128, (1884), which those authors cite, the court said: "This rule Is ap- plicable to all cases of contributory negligence, and is not confined to cases growing out cf our statutes regulating the duties of railroad em- ployees on a moving train when an obstruction appears on the track." Said Cooper, J., delivering the opinion of the court in that case at p. 135: "The intrinsic difficulty of the subject of contributory negli- gence has led to three distinct lines of decisions. In England and a majority of the states of the Union, the negligence of the plaintiff which contributes to the injury Is held to be an absolute bar to the action. In the states of Illinois and Georgia the doctrine of compara- tive negligence has been adopted, that is, if, on comparing the negli- gence of the plaintiff with that of the defendant, the former is found to be slight and the latter gross, the plaintiff may recover. In this state we hold that although the in- jured party may contribute to the injury by his own carelessness or wrongful conduct, yet if the act or negligence of the party inflicting the injury was the proximate cause of the injury, the latter will be liable in damages, the negligence or wrongful conduct of the party injured being taken into considera- tion, by way of mitigation, in esti- mating the damages. In other words, if defendant was guilty of a wrong by which the plaintiff is in- jured, and plaintiff was also in some degree negligent or contrib- uted to the iniury, it should go in mitigation of damages, but cannot justify or excuse the wrong." While each court is supposed to be the best exponent of its own doctrines, it is difficult to discover any sub- stantial difference between the Georgia rule and that followed until recently in Tennessee, unless under the rule followed in the latter state the amount recovered for injuries caused by the defendant's negli- gence could be reduced because of some negligence of the plaint- iff which did not In any degres tend to produce the result. " East Tennessee, V. & G. Ry. Co. V. Hull, 88 Tenn. 33, 12 S. W. Rep. 419, (1889); East Tennessee, V. & G. Ry. Co. V. Aiken, 89 Tenn. 245, 14 S. W. Rep. 1082, (1890). "Illinois Central R. R. Co. v. § 380.J THE LAW OT H-EGLIOENCE. 616 courts of Kentucky reject the doctrine of comparative negli- gence.^^ With the exceptions already noted, it is believed that the courts of every state in the Union where not controlled by statute, as well as the Federal courts and Ihe courts of Canada, have repudiated, in terms at least, the doctrine of comparative negligence, although some expressions used in the earlier decisions are not in full accord with the later decisions by the same courts.*' § 380. liability notwithstanding negligence of injured person —subsequent negligence — last chance — Some courts have at- Dick, 12 Ky. Law Rep. 772, 15 S. W. Rep. 665, (1891). »= Kentucky Central R. R. Co. y. Thomas, 79 Ky. ICO, 42 Am. Rep. 208, (1890). " Carrlngton v. Louisville & Nash- ville R. R. Co., 88 Ala. 472, (1889), holding that the gross negligence of the defendant does not over- come the defense of contributory negligence unless it was wanton, reckless or intentional; Prescott & A. C. Ry. Co. V. Rees, 3 Ariz. 317, 28 Pac. Rep. 1134, (1892); Rowen v. New York, New Haven & Hartford R. R. Co., 59 Conn. 364, 21 Atl. Rep. 1073, (1880), in which it was decided that, if a plaintiff has been guilty of a want of ordinary care contributing to the production of the injury, he cannot recover, al- though the defendant has been guilty of gross and culpable negli- gence, if the act was not intentional and wanton; Terre Haute & In- dianapolis R. R. Co. V. Graham, 95 Ind. 286, (1883), declaring that negligence, whether slight, ordinary or gross, is still negligence; and when the defendant is charged with nothing but negligence, contribu- tory negligence is a defense, but holding that, when willfulness is an element the case ceases to be one of negligence; Johnson v. Tillson, i>6 la. 89, (1872), in which it is said that, "The doctrine of compara- tive negligence is discarded; that of contributory negligence pre- vails;" Atchison, Topeka & S. P. R. R. Co. V. Morgan, 31 Kan. 77, (1883); Penneman v. Holden, 75 Md. 1, 22 Atl. Rep. 1049, (1892); Marble v. Ross, 124 Mass. 44, 50, (1878); Hurt V. St. Louis, I. M. & S. R. R. Co., 94 Mo. 255, 7 S. W. Rep. 1, 5, (1888); Orleans Village v. Perry, 24 Neb. 831, 836, 40 N. W. Rep. 417, (1888); Pennsylvania R. R. Co. V. Righter, 42 N. J. L. 180, (1880); Omaha Horse Ry. Co. v. Doolittle, 7 Neb. 481, (1878) ; Giesel- man v. Scott, 25 Ohio St. 86, 88, (1874), which seems to differ some- what from Kerwhacker v. Cleveland, C. & Cine. R. R. Co., 3 Ohio St. 172, 173, (1854); Long v. Township of Milford, 137 Pa. St. 122, 20 Atl. Rep. 425, (1890), declaring that "the law does net stop to measure the degree of negligence on the part of the plaintiff;" Galveston, H. & S. A. Ry. Co. v. Thornsberry, 17 S. W. Rep. 521, (Tex. 1892); Richmond & D. Ry. Co. v. Yeamans, 86 Va. 860, 12 S. E. Rep. 946, (1890); McCallum v. Odette, 7 Can. Sup. Ct. 36, (1881); Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, (1891), affirming 6 Mackey, 39, (1887). Holwerson v. St. Louis Ry. Co., 157 Mo. 216, (1900), likewise discards the doc- trine of comparative negligence, 616 THE LAW OF STEBET RAILWAYS. [§ 380. tempted to engraft upon the law of contributory negligence, a rule, which, if followed out to its legitimate consequences, would wholly destroy the effect of the elementary doctrine, that he whose negligence directly contributes to his own injury cannot recoA^er for the concurrent negligence of another. They hold that the plaintiff may recover notwithstanding his own negligence exposes him to the risk of the injury, if the defendant, after he knew, or by the exercise of ordinary prudence might have known, of the plaintiff's danger, failed to exercise ordinary care to pre- vent injuring him.^* This rule is more favorable to the plaintiff ^ Mr. Thompson, in his valuable work on Trials, at sec. 1683, says that it was "Invented by the courts to mitigate the severe injustice in the earlier doctrine of contributory negligence." See also Thompson on Negligence (2d Ed.), vol. I, sec. 241; Cadmus v. St. Louis Bridge & Tunnel Co., 15 Mo. App. 86, (1884), in which it was held that even if the parents of a child who was in- jured, were guilty of negligence In permitting him to be on the street, it was for the jury to say whether or not the defendant company could not have avoided the injury by the exercise of ordinary diligence. This doctrine is sometimes known as the "last clear chance" doctrine, and has been applied in the following cases and jurisdictions: Citizens' St. Ry. Co. V. Steen, 42 Ark. 321, (1883) ; Frick v. St. Louis, K. C. & N. Ry. Co., 75 Mo. 595, 596, (1882) ; White V. Wabash Western Ry. Co., 34 Mo. App. 57, 58, (1888), holding that in such a case the gross negli- gence of the injured person will not prevent a recovery; Donohue v. St. Louis, L M. & S. Ry. Co., 91 Mo. 357, (1886); Morris v. Chicago, B. & Q. R. R. Co., 45 la. 29, (1876); State v. Manchester & Lawrence R. R. Co., 52 N. H. 528, 529, (1873) ; Colorado Central R. R. Co. v. Holmes, 5 Colo. 197, (1880); Hays V. Gainesville St. Ry. Co., 70 Tex. 602, 8 S. W. Rep. 491, (1888); Healey v. Dry Dock, East Broadway & Battery R. R. Co., 46 N. Y. Super. 473, (1881); Gothard & Alabama Great Southern R. R. Co., 67 Ala. 114, (1880) ; Doggett v. Richmond & Danville R. R. Co., 78 N. C. 305, (1878). See Baltimore Trac. Co. v. Appel, 80 Md. 603, 31 Atl. Rep. 964, (1894); Indianapolis Trac. Co. v. Kidd, 167 Ind. 402, 79 N. B. Rep. 347, 7 L. R. A. (N. S.) 143, (1906); Recktenwald v. Metropolitan St. Ry. Co., 120 Mo. App. 595, 97 S. W. Rep. 557, (1906) ; Birmingham Ry. Co. v. Clarke, 41 So. Rep. 829, (Ala. 1906) ; Kramm v. Stockton Elec. Ry. Co., 3 Cal. App. 606, 86 Pac. Rep. 738, (1906) ; Little v. Boston Ry. Co., 72 N. H. 502, 57 Atl. Rep. 920, (1904) ; Hanson v. Manchester Ry. Co., 73 N. H. 395, 62 Atl. Rep. 595, (1905); Heinel v. People's Ry. Co., 6 Penne- well (Del.) 428, 67 Atl. Rep. 173, (1907); Denver City Tramway Co. v. Cobb, 164 Fed. Rep. 41, (1908) ; Pow- ers V. Des Moines City Ry. Co., 115 N. W. Rep. 494, (Iowa, 1908) ; Padu- cah Trac. Co. v. Sine. 33 Ky. Law Rep. 792, 111 S. W. Rep. 356, (1908); Rledel v. Wheeling Trac. Co., 63 W. Va. 522, 61 S. E. Rep. 821, (1908); Smith V. Connecticut Ry. Co., 80 Conn. 268, 67 Atl. Rep, 888, (1908); § 380.] THE LAW OF NEGLIGENCE. 617 than the doctrine of comparative negligence referred to in a previous section ;^'' for that only prevents a recovery by a plaint- iff who was. in fault, when his negligence was slight and that of the defendant gross, while the rule under consideration per- mits him to recover, although both were guilty of the same degree of culpability. Where this rule prevails, a man may negligently expose himself to danger, by thoughtlessly driving or walking upon a street railway track in advance of an approaching car without looking or listening, although if he had taken those pre- caxitions he would have been aware of the danger in time to avoid injury, and yet if the driver, grip-man or motor-man, after seeing his peril, did not exercise ordinary care under the circum- stances, or even if he carelessly failed to obser^'e the track ahead and an injury resulted, the company will be held liable on the ground of its servant's negligence.^® In some of the cases which assert the plaintiff's right to recover notwithstanding his volun- tfiry exposiire to danger, the courts have regarded the defendant's negligence as gi-oss, and held it to be the proximate cause of the injury, and that of the injured person as too slight and remote to defeat the action."'^ As sometimes applied, this rule in prac- tice approaches the doctrine of comparative negligence, while Bladecka v. Bay City Co., 15 De- 139, (1902) ; McDonald v. Metropoli- troit Leg. N. 965, 118 N. W. Rep. tan St. Ry. Co., 93 App. Div. (N. Y.) 963, (1908). See also Atwood v. 238, (1904); Swift v. New York Ry. Bangor Ry. Co., 91 Mte. 399, 40 Atl. Co., 120 N. Y. Supp. 203. (1909); Rep. 67, (1898) ; Jacquemin v. Mon- Terre Haute Elec. Co. v. Roberts, treal St. Ry. Co., Q. R. 11 S. C. 419, qq n. B. Ren. 335, (Ind. 1910). (1897); Brenner v. Toronto R. W. « Cincinnati, H. & D. R. R. Co. v. Co., 13 Ontario L. Rep. 423, (1907) ; Swanson v. Chicago City Ry. Co., 242 111. 388, 90 N. B. Rep. 210, nQnQ^. tt^^ a i.t * ,K Z R- R- Co- v. Gles, 31 Md. 357, (1869); (1909) ; Edwards V. Metropolitan St. ,„. . .v .>. Ry. Co., 127 S. W. Rep. 605, (Mo. "^^''°'' ^^""^^^^ ^- ^ ^°- ^- ^off- 1910); Doll V. Louisville Ry. Co.. 128 '"^'^' '^ "l" ^^^- ^^^''^'>- S. W. Rep 344 (Ky 1910) ^^^ ®®^ Drown v. Northern Ohio "Ante, sec. 379. ' ' ^rac. Co., 76 Ohio St. 234, (1907), "This doctrine was distinctly re- ^^ '^^^'^^ ^he court held that the pudiated In Scott v. Third Ave. R. doctrine of "last chance" does not R. Co., 59 Hun 456, 458, 459, 13 N. apply "where the plaintiff has been Y. Supp. 354, (1891); and by negligent, and his negligence con- analogy has been ignored in many tinues, and, concurrently with the stock-killing cases. See also Rider negligence of the defendant, directly V. Syracuse R. T. Co., 171 N. Y. contributes to produce the injury." Kassen, 49 Ohio St. 230, 31 N. E. Rep. 282, (1892); Northern Central 618 THE LAW OF STEEET EAILWAYS. [§ 381. in other cases the courts have ignored the plaintiff's negligence on the theory that it is not a proximate cause of his injury. "When properly guarded, this doctrine may promote the ends of justice; but, as sometimes enforced, it permits a verdict to turn upon an almost infinitesimal period of time, which results in following the most objectionable feature of the Georgia rule and ignoring its doctrine of mitigation.^^ An examination of the cases in which the courts have in terms said that the plaintiff may recover, if the defendant might have discovered his peril in time to prevent injuring him, will show, that in most of them the injured person was in a helpless condition and wholly unable at the time to avert the danger, or that the conduct of the defendant's ser- vants was such as to indicate a conscious indifference to conse- quences. In the former class of cases, it may be said that the plaintiff's negligence was not a contemporaneous, concurring or proximate cause of the injury, and in the latter that the plaint- iff's right of action was saved by the principle that there can be no contribution to a willful injury by an act of mere negli- gence.^® Neither of these principles is inconsistent with the funda- mental doctrine of contributory negligence. But very frequently they have been overlooked in cases where the same result would have been reached without subscribing to a dangerous legal heresy. § 381. Burden of proof as to negligence of injured person. — There is an irreconcilable conflict in the decisions on the question " Mr. Thompson in his treatise culmination of it Is 'Comparative on Negligence, p. 1155, note, says: negligence.'" Speaking of the "Perhaps a better expression of same doctrine urged upon the court this rule Is, that although the plaint- in Scott v. Third Ave. R. R. Co., 59 iff has negligently exposed himself Hun 456, 459, (1891), Brady, J., said: or his property to an injury, yet if "The illustration of this proposition the defendant, after discovering the shows how inappropriately it was exposed situation, inflicts the injury invoked herein. It is, 'if a man upon him through a failure to ex- negligently lie down and fall asleep ercise ordinary care, the plaintiff in the middle of the public road, may recover damages." Mr. Beach, and another failing to exercise in his work on Contributory Negli- ordinary care should drive over gence (3d Ed), sec. 55, comment- him, the party injured would have ing on this proposition, says: "The a right of action against the tendency of It is to unsettle and other.'" confuse established principles. The "Ante, sec. 378. i 381.] THE LAW OF NEGLIGENCE. 619 as to -which party must assume the burden of proof on the issue of contributory negligence in actions for personal injuries. Sev- eral courts of high standing hold that the onus is upon the plaintiff, to show that the injuries complained of were not caused by any want of negligence on the part of the injared person. This is the rule in Connecticut,^" Georgia,'^ Illinois,^^ lowa,'^ Maine,** Massachusetts,*" Michigan,*® Mississippi,*'^ New York*^ and North Carolina.** The opposite rule is maintained by the Supreme Court of the United States,'*" and is the doctrine followed in Alabama,*^ Arizona,*^ California,^* Colorado,** Dakota,*' Idaho,*® "Park V. O'Brien, 23 Conn. 339, (1854). " Prather v. Richmond & Danville R. R. Co., 80 Ga. 427, 9 S. E. Rep 530, (1888). " But the law does not always re- quire positive proof of due care and diligence on the part of the plaint- iff. Under certain circumstances it may be assumed that he observed ordinary care for his safety. Mis- souri Furnace Co. v. Abend, 107 111. 44, 45, 47 Am. Rep. 425, (1883) ; Central Ry. Co. v. Bannister, 195 111. 48, 62 N. B. Rep. 864, (1902). ''Bonce V. Dubuque St. Ry. Co., 53 Iowa 278, (1880). "Lesan v. Maine Central R. R. Co., 77 Me. 85, (1885). "Taylor v. Carew Manufacturing Co., 143 Mass. 470, 10 N. E. Rep. 308, (1887). But otherwise in an action against a railroad com- pany, under the statute, for the wrongful death of a passenger. Merrill v. Eastern R. R. Co., 139 Mass. 252, 29 N. E. Rep. 666, (1885). See also Cox v. South Shore St. Ry. Co., 182 Mass. 497, 65 N. E. Rep. 823, 29 Am. & Eng. R. Cas. (N. S.) 461, (1903). "Mynning v. Detroit, Lansing & Northern R. R. Co., 67 Mich. 677, 682, (1888); Gardner v. Detroit St. Ry. Co., 99 Mich. 182, 58 N. W. Rep. 49, (1894). " City of Vicksburg v. Hennessy, 54 Miss. 391, (1877). " Tolman v. Syracuse, Bingham- ton & N. Y. R. R. Co., 38 N. Y. 198, 50 Am. Rep. 649, (1885); Mc- Clellan v. Brooklyn Heights Ry. Co., 89 App. Div. (N. Y.) 622, (1903). "' Owens V. Richmond & Danville R. R. Co.. 88 N. C. 502, (1883). "Washington & Georgetown Ry. Co. V. Gladmon, 15 Wall. 401, (1872). " Thompson v. Duncan, 76 Ala. 334, (1884). "Hobson v. New Mexico & A. R. Co., 11 Pac. Rep. 545, (Ari. 1886), holding that where the evidence for the plaintiff does not show want of care, the onus is on the de- fendant to prove his want of care. " McDougall V. Central R. R. Co., 63 Cal. 431, (1883), "Denver & R. G. R. R. Co. v. Ryan, 17 Colo. 98, 28 Pac. Rep. 79, (1892), although the plaintiff has alleged his freedom from negligence. « Sanders v. Roister, 1 Dak. 151, (1875). "Hopkins v. Utah Northern Ry. Co., 2 Idaho 277, 13 Pac. Rep. 343, (18§7). 620 THE LAW OF STEEET EAILWATS. [§ 381. Indiana,*^ Kansas,** Kentucky/* Maryland/" Minnesota/^ Missouri/^ Nebraska/^ New Hampshire/* ]^ew Jersey/** Ohio/' Oregon/^ Pennsylvania/* Ehode Island/® South Carolina/" Tennessee/^ Texas/^ Utah/^ Vermont,*^ Washington/^ West Vir- " In Indiana under the act of 1899 (Acts 1899, p. 58, sec. 359a Burns 1901) the burden of proving con- tributory negligence Is upon the defendant. Indianapolis St. Ry. Co. V. Taylor, 158 Ind. 274, (1902). " Missouri Pacific Ry. Co. v. Mc- Cally, 41 Kan. 639, 21 Pac. Rep. 574, (1889). "Kentucky Central R. R. Co. v. Thomas, 79 Ky. 160, 42 Am. Rep. 208, (1880). "' County Commissioners v. Bur- gess, 61 Md. 29, (1883); Lake Ro- land El. Ry. Co. v. McKewen, 80 Md. 593, 31 Atl. Rep. 797, (1894). " Hocum v. Weitherick, 22 Minn. 152, 153, (1875), holding it to be un- necessary to aver that the injured person was free from negligence; Lorimer v. St. Paul City Ry. Co., 48 Minn. 391, 51 N. W. Rep. 125, (1892). "' Fulks V. St. Louis & S. P. Ry. Co., Ill Mo. 335, 19 S. W. Rep. 818, (1892); Crumpley v. Hannibal & St. J. R. R. Co., Ill Mo. 152, 19 S. W. Rep. 820, (1892). " Anderson v. Chicago, B. & Q. R. R. Co., 35 Neb. 95, 52 N. W. Rep. 840, (1892); Omaha St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. Rep. 1007, (1896); Lincoln St. Ry. Co. v. McClellan, 54 Neb. 672, 74 N. W. Rep. 1074, (1898). "Smith V. Eastern R. R. Co., 35 N. H. 356, 357, (1857), holding that the plaintiff need not aver that he was without fault. " New Jersey Express Co. v. Nichols, 33 N. J. L. 434, (1867). " Baltimore & Ohio R. R. Co. v. Whltacre, 35 Ohio St. 627, (1880). But if the plaintiff's testimony raises a presumption of contribu- tory negligence, the burden rests upon him to remove that presump- tion. Columbus Ry. Co. v. Hitter, 67 Ohio St. 53, (1902). "Grant v. Baker, 12 Ore. 329, (1885), distinguishing Walsh v. Ore- gon Ry. & Nav. Co., 10 Ore. 250, (1882). "'Bradwell v. Pittsburgh West End Pass. Ry. Co., 139 Pa. St. 404, (1891). '"' Cassidy v. Angell, 12 R. I. 447, 34 Am. Rep. 690, (1879). But if the plaintiff's case shows contribu- tory negligence he may be non- suited. " Carter v. Columbia & Greenville R. R. Co., 19 So. C. 20, 45 Am. Hep. 754, (1882). "Burke v. Street Ry. Co., 102 Tenn. 409, 52 S. W. Rep. 170, (1899). °' Unless the plaintiff's case dis- closes want of care on part of the injured person, or exposes him to suspicion of negligence, and the de- fendant relies upon contributory negligence as a defense, it must be pleaded and proved. San Antonio & Arkansas Pass. Ry. Co. v. Ben- nett, 76 Tex. 151, 155, (1890). •"Ripley v. Salt Lake R. T. Co., 10 Utah 428, 37 Pac. Rep. 681, (1894). " Hill V. Town of New Haven, 37 Vt. 501, (1865). " Spurrier v. Front St. Cable Ry. Co., 3 Wash. 659, 29 Pac. Rep. 346, (1892). § 381.] THE LAW OF NEGLIGENCE. 621 ginia,'® Wisconsin,®'' and the Federal Courts,®* while the supreme court of Louisiana is non-conunittal,'® although it holds, that if the plaintiff's own evidence strongly suggests that he was guilty of contributory negligence, that will bar a recovery, no matter where the burden rests, unless he removes or explains away the adveree presumption thus created.''® In those jurisdictions in which it is held that contributory negligence is an affirmative defense, with few exceptions the courts hold that it is not incum- bent oa the plaintiff to offer evidence to show* the exercise of due care, unless his case discloses such a state of facts as to raise a presumption of contributory negligence against the injured per- son, and in that case the burden rests upon the plaintiff to remove that presumption.''^ It appears, then, that in some states the burden of proof as to contributory negligence is always on the plaintiff in personal injury cases; while a majority of the courts hold that it is an affirmative defense and that the burden rests upon the defendant, unless evidence is introduced on behalf of the plaintiff raising a presumption of contributory negligence, which he must then rebut. That the courts maintaining the latter rule are not wholly satisfied with its practical application may fairly be inferred from the fact that the exception is inconsistent with the general rule which it qualifies. Without the introduc- tion of evidence, the law does not raise any presumption in favor of or against either party. What the defendant did or failed to do is no more a part of the transaction under investigation than what the injured person did or failed to do. The acts of omission or commission of one party are as essential to a com- "Sheff V. City of Huntington, 16 "Ryan v. Louisville, N. O. & T. W. Va. 307, 317, (1880). By. Co., supra. " Waterman v. Chicago & A. R. '" Hobson v. New Mexico & A. R. R. Co.. 82 WlB. 613. 52 N. W. Rep. ^o., 2 Ariz. 171, 11 Pac. Rep. 545, 247, (1892) (1886) ; Baltimore & Ohio R. R. Co. ' .' „ » „ .^ „ V. Whitacre, 35 Ohio St. 627, (1880) ; "Hough V. Texas & Pacific Ry. -, ., , „ ^„ t, ^ a,„ n\ n« lAn TT ,, «,« «... /..„-«v i, Cassidy v. Angell, 12 R. I. 447, 34 fl^ln « M \ ,'o nii! ^' ^-- ^^P- 690- (1878): San Antonio firming 6 Mackey 39, (1887). ^ ^^^^„,^, p^^3 ^^ C„ ^ 3^^ "Ryan v. Louisville, N. O. & T. nett, 76 Tex. 151, 155, (1890); and Ry. Co., 44 La. Ann. 806, 11 So. Rep. generally the cases in this section 30, (1892); Clements v. Louisiana cited from the states which have Electric Light Co., 44 La. Ann. 692, adopted the rule under considera- 11 So. Rep. 51, (1892). tlon. 622 THE LAW OF STEEET KAILWAYS. [§ 382. plete statement of the transaction as the conduct of the opposite party. As indicated by the decisions, the practice in the different states as to pleading contributory negligence, with very few ex- ceptions, follows the rule as to the burden of proof. Manifestly where it is not necessary to prove the plaintiff's freedom from negligence, it is not necessary to aver it; and where such proof is required the averment must be made.'^^ The disposition of men to take care of themselves and to keep out of danger is some- times considered a fact which tends to negative the charge of con- tributory negligence.''^ But in those states where the burden of proof is upon the plaintiff to show that the injured person was free from fault, a bare presumption is not sufficient; there must be some tangible proof or the attending circumstances must be such as to show that the party was not in fault.''* § 382. Voluntary exposure to danger to save human life — It "Cincinnati, Hamilton & Day- ton R. K. Co. v. McMullen, 117 Ind. 439, 20 N. E. Rep. 287, (1888), maintaining the necessity for both an averment and proof of the Injured person's freedom from neg- ligence, hut holding that it Is suffi- cient to aver that he was "without fault or negligence." The follow- ing cases hold such an averment to be unnecessary; Hooum v. Wethe- rlck, 22 Minn. 152, (1875); Smith V. Eastern R. R. Co., 35 N. H. 356, (1857) ; Conroy v. Oregon Construc- tion Co., 23 Fed. Rep. 71, (1885); Holt V. Whatly, 51 Ala. 569, (1874) ; Lopez de Lopez v. Central Arizona Mining Co., 1 Ariz. 4G4, (1883); Chicago & Northwestern Ry. Co. v. Coss, 73 111. 394, (1874), but holding that, if the negligence of plaintiff was slight and that of the defendant gross, those facts must be averred; May V. Inhabitants of Princeton, 11 Mete. 442, (Mass. 1846), even where the plaintiff must prove that he was exercising ordinary care; Lee v. Troy Citizens' Gas-Light Co., 98 N. Y. 115, (1885) ; Street Railroad Co. v. Nolthenlus, 40 Ohio St. 376, (1883), unless the other averments necessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence; Lee v. Union Ry. Co.. 12 R. I. 383, (1879); Texas & Pacific Ry. Co. v. Murphy, 46 Tex. 356, (1876), unless the aver- ments of the petition, If unex- plained, would establish a prima facie case of contributory negli- gence; Baltimore & Ohio R. R- Co. V. Whittington, 30 Gratt. 805. (1878) ; Fowler v. Baltimore & Ohio R. R. Co., 18 W. Va. 579, (1881). "The absence of any fault on the part of the person Injured may be inferred from the circumstances, and the ordinary habits, conduct and motives of men. Johnson v. Hudson River R. R. Co., 20 N. Y. 65, (1859). "Squire v. Central Park, North & East River R. R. Co., 36 N. Y. Super. 459, (1873) ; Button v. Hud- son River R. R. Co., 18 N. Y. 248, (1858). See also Johnson v. Hud- son River R. R. Co,, supra. § 383.] THE LAW 01" NEGLIGENCE. 623 is not negligence per se for one person to risk his life or place himself in a position of great danger, in an effort to save the life of another or to rescue him from a sudden peril or great bodily harm. One who rashly or unnecessarily exposes himself to danger, even in an effort to save the life of another, cannot recover damages for injuries thus brought on himself; but one who attempts to rescue another who is in great and imminent peril may be warranted by the surrounding circumstances in exposing his life or limbs to a very high degree of danger. In such cases he should not be charged with the consequences of errors of judgment naturally resulting from the excitement and confusion of the moment; and if he does not act rashly and is nevertheless injured, the result should be attributed to the party whose negligence created the peril which justified the risk.^® § 383. Imminent peril — attempts to escape apparent danger It is well settled that one who by the negligence of another has been placed in a situation of real or apparent imminent peril is not required, in attempting to escape therefrom, to use the judgment and discretion that would be required of him under other circumstances. This rule is frequently applied to passen- gers who have reason to apprehend danger from collisions. If in attempting to escape from danger the passenger has no time to deliberate, and, while acting on the instinct of self-preservation and as a pnident person would be expected to act under like circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he was impelled to act, whether it be the carrier in whose charge he is or another; and this is true although no injury would have re- sulted had no attempt to escape been made.''® "Pennsylvania R. R. Co. v. Lan- 50 Ala. 70, 77, 78, (1875). See also gendorf, 48 Ohio St. 316, 28 N. B. Beach on Contrib. Neg. (3d Ed.), Rep. 172, (1891); Peyton v. Texas sec. 42; Thompson on Neg., Vol. II, & Pacific Ry. Co., 41 La. Ann. 861, p. 1174; Pierce on Railroads, p. 329; (1889); Ecltert v. Long Island R. R. Rorer on Railroads, p. 1209; West Co., 43N. Y. 502, (1871); Donahoe V. Chicago St. Ry. Co. v. Liderm'n, Wabash, St. Louis & Pacific Ry. Co., 187 111. 463. 58 N. E. Rep. 367, 83 Mo. 560, (1884); Linnehan v. (1900). Sampson, 126 Mass. 506, (1879); '• Twomley v. Central Park, North Government St. R. Co. v. Hanlon, & East River R. R. Co., 69 N. Y. 624 THE LAW OF STEEET EAILWAYS. [§ 384. §384. Extricating injured person. — ^If a person is injured by a street car, and the accident happens without any negligence 158, (1877); Adams v. Hannibal & St. Jos. R. R, Co., 74 Mo. 553, (1881) ; Whelan v. New York, Lake Erie & Western R. R. Co., 38 Fed. Rep. 15, (1889) ; Pennsylvania R. R. Co. V. Stegemeier, 118 Ind. 305, 20 N. E. Rep. 843, (1889); Chicago, Rock Island & Pacific R. R. Co. v. Clough, 134 111. 586, 25 N. E. Rep. 664, (1890); Central Trust Co. v. Wabash, St. L.. & P. Ry. Co., 27 Fed. Rep. 159, (1886) ; North Chicago St. R. R. Co. V. Louis, 35 111. App. 477, (1889); Knowlton v. Milwaukee City Ry. Co., 59 Wis. 278, (1884); Quill V. New York Central & Hud- son River R. R. Co., 11 N. Y. Supp. 80, (1890); Shankenbery v. Metro- politan St. Ry. Co., 46 Fed. Rep. 177, (1891); Holzab v. New Orleans & Carrolton R. R. Co., 38 La. Ann. 185, (1886), holding that contributory negligence will not avail as a de- fense when the act charged to be negligent was the result of tremor and excitement and produced by the defendant's misconduct. Where a passenger was standing on the rear platform of a horse car with one foot upon the step, and another car following close behind down an incline approached so near that the tongue passed over the tail-board of the platform, and the passenger became frightened and jumped offl at a dangerous place in a bridge and was thereby injured, it was held proper to submit to the jury the question of his contributory negligence, South Covington & Cin- cinnati St. Ry. Co. V. Ware, 84 Ky. 267, (1886). So it was held that where a woman was a passenger on a street car and the horses were running away, the driver having abandoned the car, her contributory negligence would not be conclu- sively presumed from the mere fact that instead of remaining in the car, which was very near a steep embankment, she jumped out and was injured, DImmey v. Wheeling & E. G. R. R. Co., 28 W. Va. 32, (1885). The same ruling was made in a case where the plaintiff was a passenger in a street car and was injured by jumping from the car when a collision at a railroad cross- ing seemed to be unavoidable, and was in fact imminent, Cuyler v. Decker, 20 Hun 173, (1880); and where a passenger was injured by jumping from a street car imder the reasonable apprehension of danger from a collision at a street crossing, although there was no real danger and the engine was under full control, Kleiber v. Peo- ple's Ry. Co., 107 Mo. 240, 17 S. W. Rep. 946, 14 L. R. A. 613, (1891). In such cases the outcries of other passengers and by-standers are admissible as descriptive of the occurrence, as a part of the res gestae, and as evidence that the plaintiff was actuated by reason- able apprehension of danger and not by rashness or imprudence, Twomley v. Central Park, North & East River R. R. Co., supra; Mobile & Montgomery R. R. Co. v. Ash- craft, 48 Ala, 15, (1872); Galena & Chicago Union R. R. Co. v. Fay, 16 111. 558, (1855). See also Beach, Contrib. Neg. (3d Ed.), sec. 40; Cody V. New York & N. B. R. R. Co., 151 Mass. 462, 24 N. E. Rep. 402, (1890); Toledo Elec. Ry. Co. V. Bateman, 16 Ohio C. C. 162, 170, (1898); BischofE v. Peoples Ry. Co., 121 Mo. 216, (1893); Sears v. Se- attle St. Ry. Co., 6 Wash. 227, 33 §385.J THE LAW OP NEGLIGENCE. 625 on the part of the company's servants, or partly because of the contributory negligence of the person injured, and further injuries are inflicted through an error of judgment on the part of the driver or conductor in attempting to extricate the injured person from his perilous position, the company cannot be held liable therefor/'^ § 385. Contributory neg:ligence of children — The courts of Kew York early adopted, and for a long time followed, the harsh mle that the degree of care required of an infant to exempt him from the imputation of negligence was the same as that which an adult of ordinary prudence would exercise in the same situa- tion.'* But that indefensible rule has been repudiated by the courts of that state,'® which have adopted the more rational and Pac. Rep. 389, (1893); Wade v. Columbia Elec. Ry. Co., 51 S. C. 296, 29 S. B. Rep. 233, (1897) ; Citizens' Ry. Co. V. Washington, 24 Tex. Civ. App. 442, (1900) ; West Chicago St. Ry. Co. V. Lyon, 57 111. App. 536, (1894) ; Galeshurg Elec. Co. v. Bar- low, 98 111. App. 335, (1901) ; Quinn V. Shamokin & Mt. Carmel Elec. Ry. Co., 7 Pa. Super. Ct. 19, (1898) ; Dun- lay v. United Trac. Co., 18 Pa. Super. Ct. 206, (1901); Edwards v. Poote, 129 Mich. 121, 88 N. W. Rep. 404, 23 Am. & Bng. R. Cas. (N. S.) 812, (1901); Jackson v. Union Ry. Co., 77 App. Div. (N. Y.) 161, (1902); Williamson v. St. Louis Transit Co., 202 Mo. 345, 100 S. W. Rep. 1072, (1897); Lehner v. Pittsburg Rys. Co., 223 Pa. St. 208, 72 Atl. Rep. 525, 132 Am. St. Rep. 729, (1908). "Rhing V. Broadway & Seventh Ave. R. R. Co., 53 Hun 321, 6 N. T. Supp. 641, (1885). The plaint- iff was thrown under the platform by his own negligence, and received further injuries while the driver was backing the car without un- hitching the horses. ™ Honegsberger v. Second Ave. R. R. Co., 33 How. Pr. 193, (1864), 40 reversing 1 Daly 89, (1860); Burke V. Seventh Ave. & Broadway R. R. Co., 49 Barb. 529, 34 How. Pr. 239, (1867); Solomon v. Central Park, North & East River R. R. Co., 1 Sweeny 298, (1869). Said Monell, J., in Squire v. Central Park, North & East River R. R. Co., 36 N. Y. Super. 432, 449, (1873): "An in- flexible rule of law holds an infant to the same prudence as Is required of an adult. He might not be able to discover impending danger as readily and as sharply as one of mature age; so he might take greater risks and make bolder dashes, feeling secure and con- fident in his ability to escape, but the law makes no exceptions or dis- tinctions. If any of these acts would be characterized as reckless in a person of ordinary prudence, they must be so characterized in a person even of the tender age of the plaintiff's child," — about eight years of age. See also McFarland V. Elmira Ry. Co., 120 N. Y. Supp. 292, (1909). ™ Thurber v. Harlem Bridge, Mor- risania & Fordham R. R. Co., 60 N. Y. 326, (1875). 626 THE LAW OF STEEET EAILWAYS. [§ 385. now universal rule, that the degree of care and caution required of a child must be measured by his age and capacity.^" But while the law makes due allowance for the thoughtlessness and indiscretion of youth, it does not hold children necessarily irre- sponsible. To the extent that a child has knowledge and understanding of the danger to which he is exposed, or where it is of such a nature as to be necessarily obvious even to one of his years, he is under a legal duty to avoid it. The standard of his duty and responsibility is measured by such reasonable care and prudence as usually characterize children of his age, intelligence and experience, and to that extent only is he held responsible in law for acts contributing to his own injury.^^ Much difficulty has been experienced in applying this rule ; and, while in some cases courts have decided as a matter of law that an infant was clearly sui juris, and in others that he was not, in a far greater number of instances they have held that the capacity of the infant to under- stand and avoid danger was a question which should be submitted to the jury.*^ Usually it is held that children under five years of »» Baltimore City Pass. R. R. Co. V. McDonnell, 43 Md. 534, (1875); Stone V. Dry Dock, East Broadway & Battery R. R. Co., 115 N. Y. 104, 23 N. Y. St. Rep. 551, (1889); Block V. Harlem Bridge, Morrisania & Fordham R. R. Co., 28 N. Y. St. Rep. 495, 9 N. Y. Supp. 164, (1890); Connolly v. Knickerbocker Ice Co., 114 N. Y. 104, 107, (1889); McCar- thy V. Cass Ave. & Fairground R. R. Co., 92 Mo. 536, (1887); Maherv. Central Park, North & East River R. R. Co., 67 N. Y. 52, 54, (1876); Philadelphia City Pass. Ry. Co. v. Hassard, 75 Pa. St. 367, (1874); Col- ler V. Frankford & Southwark Ry. Co., 9 W. N. C. (Pa.) 477, (1880); Terre Haute St. Ry. Co. v. Tappen- back, 9 Ind. App. 422, (1893); Chi- cago City Ry. Co. v. Biederman, 102 111. App. 617, (1902); McDonald v. Metropolitan St. Ry. Co., SO App. Dlv. (N. Y.) 233, (1903); McDermott V. Boston El. Ry. Co., 184 Mass. 126, (1903); Rohlof v. Fair Haven Ry. Co., 76 Conn. 689, (1904); Dublver v. City & Sub. Ry. Co., 44 Ore. 227, 74 Pac. Rep. 915, 75 Pac. Rep. 693, (1904). See generally the cases cited under this section and Beach on Contrib. Neg. (3d Ed.), sees. 117, 118. " Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270, 13 S. V. Kep. 889, (1890), holding that a boy aged nine years was not wholly absolved from the exercise of care in alight- ing from a moving cable car; Chi- cago City Ry. Co. v. Wilcox, 138 111. 370, 24 N. E. Rep. 419, (1890). See Erie City Pass. Ry. Co. v. Schuester, 113 Pa. St. 412, (1886); Mowrey v. Central City Ry. Co., 66 Barb. 43, (1807); Swift v. Staten Island Rapid Transit Co., 123 N. Y. 645, 25 N. E. Rep. 378, (1890), affirming 5 N. Y. Supp. 316; Zwirn v. Joline, 122 N. Y. Supp. 231, (1910), and gener- ally the cases cited under this sec- tion. "Lynch v. Metropolitan St. Ry. § 385.] THE LAW OP NEGLIGENCE. 627 age cannot be gtulty of contributory negligence, and that children who have arrived at the age of twelve years may in law con- tribute to their own injuries. But within those limits courts have usually considered the question one of fact and not of law, unless the child was of more than ordinary intelligence or the situation was such that a child of ordinary intelligence must necessarily reahze his danger. Thus it has been held that a child cannot be guilty of contributory negligence who is of the age of one year and a few months,*** two years,*^ two and one-half years,*" between three and four years,*® five years,*^ five years and seven months,** under seven years.*^ But on the other hand it has been held that Co., 112 Mo. 420, (1892) ; Hlne v. Bay Cities Consol. Ry. Co., 115 Mich. 204, 73 N. W. Rep. 116, (1897) ; East St. Louis Elec. Ry. Co. v. Burns, 77 111. App. 529, (1898); Pueblo Elec. St. Ry. Co. V. Sherman, 25 Colo. 114, 53 Pac. Rep. 322, (1898); Markey V. Consolidated Trac. Co., 65 N. J. L. 82, 46 Atl. Rep. 573, (1900) ; At- cheson v. United Trac. Co., 90 App. DIv. (N. T.) 571, (1907); Citizens' Ry. Co. V. Homer, 29 Ind. App. 426, (1902); Citizens' Ry. Co. v. Robert- son, 125 S. W. Rep. 343, (Tex., 1910). ^Farris v. Cass Ave. & Fair- ground Ry. Co., 80 Mo. 325, (1883), of a child who escaped from his mother's control and crawled upon a street car track. "Baltimore City Pass. Ry. Co. v. McDonnell, 43 Md. 534, (1875), of a child who was run down by a street car; Budd v. Merlden Eiec. Ry. Co., 69 Conn. 272, 37 Atl. Rep. 683, (1897). "Glraldo v. Coney Island & Brighton R, R. Co., 16 N. Y. Supp. 774, (1891), of a child run down by a street car; Bergen Co. Trac. Co. V. Heitman, 61 N. J. L. 682, 40 Atl. Rep. 651, 11 Am. & Eng. R. Cas. (N. S.) 286, (1898). "Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, (1868); Same v. Same, 36 Barb. 230, (1862); South Coving- ton Ry. Co. V. Herrklotz, 104 Ky. 400, 47 S. W. Rep. 265, (1898); Barnes V. Shreveport City Ry. Co., 47 La. Ann. 1218, 17 So. Rep. 782, (1895); Potter V. Leviton, 101 111. App. 544, (1902); Louisville Ry. Co. v. Gaar, 112 S. W. Rep. 1130, (1908); Morse V. Consolidated Ry. Co., 81 Conn. 395, 71 Atl. Rep. 553, (1908). "Pittsburgh, Allegheny & Man- chester Pass. Ry. Co. v. Caldwell, 74 Pa. St. 421, (1873), of a child who was alighting from the front plat- form. "^ Westerfield v. Levis, 43 La. Ann. 63, 9 So. Rep. 52, (1891). *° Government St. R. R. Co. v. Hanlon, 53 Ala.70, (1875). Although the injured child was only three and one-half years of age, the court, per Brickell, C. J., after comment- ing on several cases, stated its con- clusion on page 78 as follows: "It would seem to follow, that a child under the age of seven years should be absolutely exempt from the op- eration of the principle,'' — that one guilty of contributory negligence cannot recover. This, however, is against the weight of authority. See also Birmingham Ry. Co. v. Landrum, 153 Ala. 192, 45 So. Rep. 198, (1907). 628 THE LAW OF STEEET RAILWAYS. [§ 385. an infant aged sixteen years is presumed to have sufficient capacity to be sensible of danger and to have the power to avoid it, and^that this presumption wiU stand until overturned by clear proof of the absence of such discretion as is usual with infants of that age;^» and the same ruling has been made as to a boy four- teen years of age,«^ a boy twelve years old,'" an unusually intelli- gent and active boy eleven years of age,»^ or a girl of more than ordinary intelligence who is ten years of ages^" but the courts have usually refused to determine as matter of law the capacity of children, ranging in age from five to ten years, to understand and avoid the danger of attempting to cross railway tracks m front of the cars, of boarding or leaving street cars while m mo- tion, of riding on the platform or steps, or occupying Hke posi- tions of danger.®-"^ ^'St. Clair St. Ry. Co. v. Eadie, 43 Ohio St. 91, 54 Am. Rep. 144, (1885). " Nagle V. Allegheny Valley R. R. Co., 88 Pa. St. 35, (1878), of a hoy who was run down while attempt- ing to cross in front of a train. See also Wills V. Ashland St. Ry. Co., 108 Wis. 255, (1900). See collection of cases relating to capacity of in- fants in 43 Alb. L. J. 318, (1891). "^Manahan v. Steinway & Hun- ter's Point R. R. Co., 125 N. Y. 760, (1891), holding that a hoy of twelve years presumptively has suf- ficient discretion to avoid a collision with horse cars while crossing a street; Tucker v. New York Central & Hudson River R. R. Co., 124 N. Y. 308, 26 N. B. Rep. 916, (1891), re- versing 11 N. Y. Supp. 692, deciding that a boy about twelve years old living near a railroad and accus- tomed to attend school must be deemed sul Juris as to his respon- sibility for contributory negligence, in the absence of any evidence showing that he was not qualified to apprehend the danger and to appreciate the necessity for ob- serving due caution under the circumstances. " McMahon v. New York, 33 N. Y. 642, 647, (1865); Bambace v. Inter- urban St. Ry. Co., 188 N. Y. 288, (1907); Cincinnati Traction Co. v. Blackson, 27 Ohio C. C. 191, (1905). "Sheets v. Connolly St Ry. Co., 54 N. J. L. 518, 24 Atl. Rep. 483, (1892), holding that such a child has sufficient intelligence to avoid danger while crossing a street car track. See also North Hudson Ry. Co. V. Flanagan, 57 N. J. L. 696, 32 Atl. Rep. 216, (1895); Hogan V. Central Park, North & Bast River R. R. Co., 124 N. Y. 647, (1891); Brown v. European & North American Ry. Co., 58 Me. 384, (1870); Fenton v. Second Ave. Ry. Co., 126 N. Y. 625, (1891); De lola V. Metropolitan St. Ry. Co., 37 App. Div. (N. Y.) 455, (1899); sec. 311, ante, and cases there cited. "So held of a child five and one-half years old, of more than ordinary activity and intelligence, BarksduU v. New Orleans & Car- rollton R. R. Co.. 23 La. Ann. 180, (1871); a child between six and § 386.] THE LAW OF NEGLIGENCIi. 629 § 386. Contributory negligence of aged and infirm persons. — In determining what would be contributory negligence on tbe seven years, McMahon v. North- ern Central Ry. Co., 39 Md. 438, (1873), in this instance the child having been injured while crawling under a moving car; Chicago City Ry. Co. V. Wilcox, 138 III. 370, 24 N. B. Rep. 419, (1890), reversing 33 111. App. 450; Hestonville Pass. Ry. Co. V. Connell, 88 Pa. St 520, (1879), in which it was held, however, that where a child six years and nine months of age is trusted to run at large, and is injured while suddenly and unexpectedly attempting to mount the front platform while the driver is on the rear platform, the company is not responsible; Old- fleld V. New York & Harlem R. R. Co., 3 B. D. Smith 103, (1854), affirmed in 14 N. Y. 310; seven years of age, Stone v. Dry Dock, East Broadway & Battery R. R. Co., 115 N. Y. 104, 23 N. Y. St. Rep. 551, (1889), reversing 46 Hun 184; Block V. Harlem Bridge, Morrisania & Fordham R. R. Co., 28 N. Y. St. Rep. 495, 9 N. Y. Supp. 164, (1890); Connolly v. Knickerbocker Ice Co., 114 N. Y. 104, (1889), holding that it is not necessarily negligence for a child seven years of age. to stand on the rear platform of a car in violation of an ordinance; Wash- ington & Georgetown Ry. Co. v. Gladmon, 15 Wall. 401, (1873). See also Trumbo's Administrator v. City Street-Car Co., 89 Va. 780, 17 S. E. Rep. 124, (1893) ; Henderson v. Citi- zen's St. Ry. Co., 116 Mich. 368, 74 N. W. Reip. 525. 10 Am. & Eng. R. Cas. (N. S.) 812, (1898); Aiken v. Holyoke St. Ry. Co., 180 Mass. 8, (1901); Citizens' Ry. Co. v. Robert- son, 125 S. W. Rep. 343, (Tex. 1910). See also Mallard v. Ninth Ave. R. R. Co., 27 N. Y. St. Rep. 901, 7 N. Y. Supp. 666, (1889), holding that a child of nine years may be guilty of contributory negligence; Downey V. Baton Rouge Co., 122 La. 481, 47 So. Rep. 837, (1908); Ryan v. La Crosse City Ry. Co., 108 Wis. 122, (1900). See also Smith v. Rochester Ry. Co., 118 N. Y. Supp. 78, (1909) ; Lovett V. Salem & South Danvers R. R. Co., 9 Allen 557, (1865), decid- ing that it cannot be held as a mat- ter of law to be contributory negli- gence for a child of ten years to jump ofC a car while in motion. In obedience to a command of the driver; McCarthy v. Cass Ave. & Fairground R. R. Co., 92 Mo. 536, (1887), holding that it is not per se negligence for a boy between eight and nine years of age to attempt to board a car while in motion; Maher V. Central Park, North & East River R. R. Co., 67 N. Y. 52, 54, (1876), deciding that the question of the contributory negligence of a boy aged ten years, who was injured while boarding a moving car by the front platform at the driver's sug- gestion, was properly a question for the jury; Philadelphia City Pass. Ry. Co. V. Hassard, 75 Pa. St. 367, (1874), in which the court declined to say that it was negligence per se for a boy ten years of age to attempt to leave a moving car by the front platform; Ridenhour v. Kansas City Cable Ry. Co., supra; Mackey v. City of Vicksburgh, 64 Miss. 777, 2 So. Rep. 178, (1887); Motel v. Sixth Ave. R. R. Co., 2 How. Pr. (N. S.) 30, holding that a boy eight years of age may be sui juris; Wendell v. New York Central & Hudson River R. R. Co., 91 N. Y. 420, (1883), making a similar rul- ing as to a boy aged seven years 630 THE LAW OF STEEET EAILWAYS. [§ 386. part of an injured person, the same rigid rule would not apply to an idiot or insane person as to one in the possession of a mind of normal strength and vigor.®® So the infirmities of age or disabilities caused by siclmess must be considered. Accordingly it is universally held that the fact that a person who has been injured was old and laboring presumably under the infirmities of age or was crippled or otherwise physically infirm, is a material circumstance bearing upon the question of his contributory negli- gence. No greater degree of care, diligence or activity is required than the physical or mental capacity of the injured person would allow him to exercise.®^ But a person whose sight or hearing and four months; Crissey v. Hes- tonville, Mantua & Fairmount Pass. Ry. Co., 75 Pa. St. 83, (1874), hold- ing that the alleged negligence of a boy aged 13 years in jumping from a moving car was properly a question for the jury; Punk v. Elec. Trac. Co., 175 Pa. St. 559, (189G), holding a lad of thirteen years guilty of contributory negli- gence; McCann v. Sixth Ave. R. R. Co., 117 N. Y. 505, (1889), revers- ing 5G N. Y. Super. 282, and hold- ing that it is not per se an act of contributory negligence for a boy who was a trespasser on a car to jump from the platform upon a parallel track in front of another car to avoid being kicked by the conductor. See Shearman & Red- field on Negligence, (4th Ed.) Vol. 1, sec. 73; Bishop, Non Contract Law, sec. 586; Wharton on Negligence, sec. 309; Beach, Contributory Neg- ligence (3d Ed), sees. 136, 142; an instructive article, in 15 N. J._Law Jour. 262, (1892), entitled, "Contrib- utory Negligence in Torts Suffered by Infants;" Patterson Railway Ac- cident Law, p. 68. In Cincinnati St. Ry. Co. v. Wright, 54 Ohio St. 181. 43 N. E. Rep. 688, 32 L. R. A. 340, (1896), it was held that there is no rule of law that imposes upon a boy of fourteen, who goes out to work and earns wages, a higher degree of care con- cerning his safety, than a boy of the same age and equal Intelligence who, unattended, may go to and from school. '"' O'Plaherty v. Union Ry. Co., 45 Mo. 70, (1869). ■^Chicago West Division Ry. Co. v. Haviland, 12 111. App. 5C1, (1882), the plaintiff, who was a man sev- enty years of age and whose hear- ing was impaired, having been in- jured while he stood in the street between two tracks awaiting the approach of a car; Cowan v. Third Ave. R. R. Co., 9 N. Y. Supp. 610, (1890), the plaintiff, a lady eighty years of age and somewhat deaf, having been struck by a car as she was crossing the street; Jackson- ville St. Ry. Co. v. Chappell, 21 Fla. 175, (1885), the plaintiff, who was a cripple, having been injured by a sudden jerk of the car be- fore he obtained a seat; Patterson, Railway Accident Law, sees. 70 and 71; Beach, Contributory Negligence (3d Ed.), sees. 197, 396, 397. § 387.] THE LAW OF NEGLIGENCE. 631 " is impaired mnst be more cautious aud diligent in the exercise of his remaining faculties.®* § 387. Contributory negligence of parents — what constitutes. — Whether or not it is negligence to send a young child alone or without a competent protector into a street where cars and other vehicles are constantly passing and repassing may be a question of fact or of law; but ordinarily it would be considered culpable negligence as a matter of law, if the child were very young and manifestly incapable of avoiding the dangers naturally incident to its surroundings. The fact unexplained that such a child is found in the street alone or with other children too young to protect it, is presumptive evidence of negligence on the part of its parents, guardian or other legal custodian.®^ But the presumption of law thus created is not conclusive and the presence of the child in such a place imder such circumstances may be explained, '"'' for if the custodians of the child have exercised reasonable care to prevent its escape into the street, that fact when established will constitute a complete answer to the charge of contributory negligence. '"^ Us\ially the question of the contributory negligence of the parents in such cases should be submitted to the jury, because the circumstances under which children find their way into public streets, where the danger of death or serious injury is imminent, are so varied that it is im- " Zimmerman v. Hannibal & St. the street; Mack v. Lombard & Josepli R. R. Co., 71 Mo. 476, South Sts. Pass. R. R. Co., 8 Pa. (1880) ; Cleveland, Col. & Cin. R. R. Co. Ct. Rep. 305, 18 Washington Co. V. Terry, 8 Ohio St. 570, (1858); Law Rep. 804, (1890); Glassey Sohulte V. New Orleans Ry. Co., v. Hestonville, Mantua & Pairmount 44 La. Ann. 509, 11 So. Rep. 811, Pass. Ry. Co., 57 Pa. St. 172, (1892); Webb. v. Chicago City Ry. (1868); Pittsburgh, Allegheny & Co., 83 111. App. 565, (1898); Sullen- Manchester Ry. Co. v. Pearson, 72 berger v. Chester Trac. Co., 33 Pa. Pa. St. 169, (1872) ; Woeckner v. Super. Ct. 12, (1907). Erie Elec. Motor Co., 182 Pa. St. "Mangam v. Brooklyn City R. R. 182. 37 Atl. Rep. 936, (1897). Co., 36 Barb. 130, (1862), the child ™ Mangam v. Brooklyn City Ry. in this instance being less than four Co., supra; Fan Is v. Cass Ave. & years of age; Parris v. Cass Ave. Fair Ground Ry. Co., snpra; Pitts- & Fair Ground Ry. Co., 80 Mo. 325, burgh, Allegheny & Manchester Ry. (1883), affirming 8 Mo. App. 588, Co. v. Pearson, supra. 589, (1880), where a child of two '" See cases generally cited under years was playing unattended on this section. 632 THE LAW OF STREET EAIL-WAYS. [§ 387, practicable to establish specific rules according to whicli the negligence or prudence of the parent can be determined by the court as a question of law merely. To constitute negligence on the part of parents in such cases, there must be an omission of such care as persons of ordinary prudence exercise and deem adequate in the care of children. -^"^ Parents are bound to protect their children from danger so far as that can be done by the exercise of reasonable prudence and care. But the law does not require a father to suspend his business and keep his child every moment tinder his eye/"^ for, as stated elsewhere, parents are only required to exercise such care and supervision over their children as can reasonably be expected of them in view of their condition and circumstances in life.-'*'* And even where jjarents i»= O'Flaherty v. Union Ry. Co., 45 Mo. 70, (1869). I'^Weil V. Bry Dock, Bast Broad- way & Battery Ry. Co., 119 N. Y. 147, (1890) ; Henne v. Peoples' Ry. Co., 1 Pa. Super. Ct. 311, (1896). '"Sec. 388, post The tenor of the decisions of American courts, in cases which involve the negligence of parents in permitting their children to play upon the streets unattended or to go into the street attended by older children, or where the charge is made that they have failed to take due precautions to keep them at home, is indicated by the rulings made and views ex- pressed in the following cases taken at random from a very large number on the same general sub- ject. In Oldfield v. New York & Harlem R. R. Co., 3 B. D. Smith 103, (1854), affirmed in 14 N. Y. 310, (1856), it was held that the mere fact of permitting a child of the age of six years and ten months to be alone in the streets of a city unattended is not per se negligence on the part of the parents. The same ruling was made in Cumming V. Brooklyn City R. R. Co., 38 Hun 362, (1885), as to the conduct of parents in permitting a child five years of age to go into the street. In an action for injuries to a child four years old who was run over by a street car, the question whether his presence in the street alone was due to the negligence of his parents is for the jury, where it is shown that he was left alone, in a room with the doors shut, for a few minutes before the accident, and escaped therefrom without anyone's knowledge, and that he had never been known to go on the street alone before, Barry v. Second Ave. R. R. Co., 16 N. Y. Supp. 518, (1891). The parents of a child about six years of age are not chargeable with negligence in al- lowing him to go out of the house to play on their own premises front- ing on a public street, Strutsel v. St. Paul City Ry. Co., 47 Minn. 543, 50 N. W. Rep. 690, (1891). That a child two years old is playing unattended on the street is not conclusive evidence of the negligence of its parents. In such a case it is competent to show that the child escaped from their residence without their fault, Farris V. Cass Ave. & Fair Ground Ry. Co., 80 Mo. 325, (1883). It is not § 387.] THE LAW OF NEGLIGENCE. 633 are guilty of negligence in allowing a child to be alone in the street, it has been held that the defendant cannot escape liability negligence per se for parents to place a child three or four years of age in a room by an open window four feet from the floor, where the door is locked and the window is the only means of egress, Mangam V. Brooklyn City R. R. Co., 38 N. Y. 455, (1868) ; nor to permit a young child to go upon a street unat- tended except by a child nine and a half years old, Ihl v. Forty-Second St. & Grand St. Perry R. R. Co., 47 N. Y. 317, (1872) ; nor for parents keeping a bakery fronting on a street through which a line of street cars is operated, to permit a child three and a half years old to go upon the sidewalk in front of their place of business in charge of a boy ten years old, the accident having occurred while the mother was waiting on a customer, Bhrman V. Brooklyn City R. R. Co., 14 N. Y. Supp. 336, (1891) ; nor to permit a child four years of age to walk in the street in daylight under the care of a sister eleven years of age, Collins V. South Boston R. R. Co., 142 Mass. 301, (1886). Where a child five years of age, who has not before been known to go out upon the street unattended, escapes from the house, the evidence does not establish contributory negligence on the part of the mother as matter of law, but should be submitted to the jury, Fallon v. Central Park, North & East River R. R. Co., 64 N. Y. 13, (1876). It Is not negli- gence as a matter of law to permit a child between four and five years of age to remain at home in the care of his brother thirteen years of age, Dahl v. Milwaukee City Ry. Co., 65 Wis. 371, (1885). Where a child eighteen months old, left in the charge of a sister thirteen years of age, escaped from the house while the barrier across the door was removed in order to al- low the mother to scrub, it was held that the question of the contribu- tory negligence of the parents was for the jury, Pittsburgh, Allegheny & Manchester Ry. Co. v. Pearson, 72 Pa. St. 169, (1872). Where a child was left by its parents at home in the care of its grand- mother, and the door leading from the house to the street was left open and the child escaped into the street and was injured while at- tempting to cross in front of a car, it was held that the question of the parents' contributory negligence should have been submitted to the jury, Roller v. Sutter St. R. R. Co., 66 Cal. 230, (1884). Where it ap- peared that the child's parents were poor and dependent on their own labor; that the father was sick in a hospital from which the child and his mother had just returned; that the mother left the child, who was four years of age, on the door-steps and went into the house to get something for him to eat; that the house was twenty-flve feet from the street, and located on an alley; that while she was in the house the child went into the street and was injured, it was held that the mother was not chargeable, as a matter of law, with contributory negligence, Rosencranz v. Lindell Ry. Co., 108 Mo. 9, 18 S. W. Rep. 890, (1891). Where a mother allowed her child five years of age to play in a certain court having near it the means of escape into the street, telling her not to leave the door, and the child went into the street and was there injured, it was held that the ques- tion of the mother's negligence was 634 THE LAW OF STEEET EAILWATS. [§ 387. for injuries inflicted upon the child by the gross negligence of its servants/"' properly submitted to the Jury, Ames V. Broadway & Seventn Ave. R. R. Co., 56 N. Y. Super. 3, 4 N. Y. Supp. 803. (1888). Whether it Is negligence on the part of parents to allow a child seven years old to go into the streets unattended Is a proper question to he submitted to the jury, Schierhold v. North Beach & Mission R. R. Co., 40 Cal. 447, (1871). It is not per se neg- li,een<^e for a mother to permit a child four years of age to ride on a street car in charge of another child twelve and one-half years old, Saginaw Ry. Co. v. Bohn, 27 Mich. 503, (1873) ; nor to permit a child of five to ride uron a street car in com- pany with another child of eleven, Pittsburgh, Allegheny & Manches- ter Pass. Ry. Co. v. Caldwell, 74 Pa. St. 421, (1873). It is contribu- tory negligence for a parent to per- mit a child seven years of age to engage in the business for a com- pensation of serving drivers and conductors of street cars with water to drink Smith v. Hestonville, Man- tua & Fairmount Pass. Ry. Co., 92 Pa. St. 450, (1880). Where an adult having the care of a girl eight years old left a horse-car with her and immediately stepped on an ad- jacent track, without having hold of the child, and without having paid any attention to possible dan- gers, except in one direction, and the child was run over by a car coming from the other direction, it was held that the custodian of the child was chargeable with contribu- tory negligence. Reed v. Minne- apolis St. Ry. Co., 34 Minn. 557, (1886). Where a child, killed through the defendant's negligence, was In the exercise of ordinary care and prudence, the question cf the degree of the care and vigilance of its mother is immaterial, so far as the liability of the defendant is concerned, Chicago City Ry. Co. v. Robinson, 127 111. 9, (1888). See also Fallon v. Central Park, North & East River R. R. Co.. 64 N. Y. 13, (1876); Houston City St. Ry. Co. V. Dillon, 3 Tex. Civ. App. 303, 22 S. W. Rep. 1060, (1893); Hedin v. City & Suburban Ry. Co., 26 Ore. 155. 37 Pac. Rep. 540, (1894); Citizens' St. Ry. Co. v. Stoddard. 10 Ind. App. 278. (1894); Passamaneck v. Louisville Ry. Co., 98 Ky. 195, 32 S. W. Rep. 620, (1895): West Chicago St. Ry. Co. v. Scanlon, 68 111. App. 626. (1896) ; Fox V. Oak Consolidated St. Ry. Co., 118 Cal. 55, 50 Pac. Rep. 25, (1897) ; Levin v. Metropolitan St. Ry. Co., 140 Mo. 624, (1897) ; Dan v. Citizens St. R. Co., 99 Tenn. 88, 41 S. W. Rep. 339, (1897) ; Sample v. Con- solidated Ry. Co., 50 W. Va. 472, 40 S. E. Rep. 597, 57 L. R. A. 186, (1901); Kroesen v. New Castle Elec. St. Ry. Co., 198 Pa. St. 26, 47 Atl. Rep. 850, (1901); Jones v. United Trac. Co., 201 Pa. St. 346, 50 Atl. Rep. 827, (1902); Adams v. Metro- politan St. Ry. Co., 60 App. Div. (N. Y.) 188, (1901); Levine v. Metro- politan St. Ry. Co., 78 App. Div. (N. Y.) 426, (1903); Mellen v. Old Colony St. Ry. Co., 184 Mass. 399, (1903) ; Cotter v. Lynn Ry. Co., 180 Mass. 145, 61 N. E. Rep. 818, (1901) ; Beach, Contributory Negligence (3d Ed.), sec. 142. »»» Schierhold v. North Beach & Mission R. R. Co., 40 Cal. 447, (1871); Czezewzka v. Benton Ry. Co., 121 Mo. 201, (1893). §§ 388, 389.] THE LAW OF KEGLIGEWCB. 635 § 388. Poverty as affecting the question of parent's negligence. — "When the negligence of the parents of a child who has been injured becomes material in an action to recover damages, whether brought by the infant, by the parents or by an administrator, evidence as to the condition and circumstances of the family is admissible as bearing upon the question of negligence in per- mitting the child to go into the streets or in exposing it to danger elsewhere.^*** If they take all precautions for the protection of their children reasonably possible for persons in their circum- stances and state of life, they cannot be held guilty of contributory negligence.^"^ § 389. Imputing to children the negligence of their parents, guardians or other custodians — The rule prevails in some of the states that the negligence of the parent, guardian or other custo- dian of an infant of tender years in exposing it to danger, is imputed to the child and constitutes an effectual bar to an action brought by it for personal injuries. This rule foimd its earliest exponent in the Supreme Court of New York,^"* and is, therefore, "" Cumming v. Brooklyn City It. ent to give constant personal atten- R. Co., 38 Hun 362, (1885); Farrls tion to the care of children, or em- V. Cass Ave. & Fairground Ry. Co., ploy a person for that purpose; 80 Mo. 325, (1883), affirming 8 Mo. Pittsburgh, Allegheny & Manchester App. 588, (1880); Rosencrauis v. Lin- Ry. Co. v. Pearson, 72 Pa. St. 1C9, 172, dell St. Ry. Co., 108 Mo. 9, 18 S. W. (1872) ; Philadelphia & Reading R. Rep. 890, (1891); Weil v. Dry Dock, R. Co. v. Long, 75 Pa. St. 257, 265, East Broadway & Battery R. R. Co., (1874); Hoppe v. Chicago, Milwau- 119 N. Y. 147. (1890); Walters v. kee & St. Paul Ry. Co., 61 Wis. 357, Chicago, Rock Island & P. R. R. Co., 3G6, (1884). In Illinois Central R. 41 la. 71, 78, (1875). Contra. Ma- R. Co. v. Slater, 129 111. 91, 97, 21 hew v. Burns, 103 Ind. 328, (1885). N. E. Rep. 575, (1889), it was held "" Farris v. Cass Ave. & Fair- that the defendant was not entitled ground Ry. Co., supra; Rosencracz to show that the father was able to v. Lindell St. Ry. Co., supra; Weil employ others to perform the serv- V. Dry Dock, East Broadway & Bat- ice in which his child was engaged tery R. R. Co., supra; Winters v. when killed, and thereby have saved Kansas City Cable Ry. Co., 99 Mo. him from exposure to danger inci- 509, (1889); Chicago & Alton R. R. dent to that service. See Beach, Co. V. Gregory, 58 111. 226, (1871), Contributory Negligence (3d Ed.), holding that the same rule should sec. 135; Bishop. Non-Contract Law, not be applied to persons dependent sec. 579. See also sec. 387, ante. for support upon their labor, and to "" Hartfield v. Roper, 21 Wend. those whose means enable the par- 615, 34 Am. Dec. 273, (1839). See 636 THE LAW OF STEEET EAILWATS. [§ 389. denominated the New York rule."® It is still maintained in that state and was adopted bj the courts of California, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachu- setts, Minnesota and Wisconsiu. By later decisions it has been repudiated in Illinois and Louisiana, but in the other states named the doctrine still prevails.^" Various reasons have been assigned Lafferty v. Third Ave. Ry. Co., 85 App. Div. (N. Y.) 592, (1903), hold- ing that if the child was non sul juris but exercised that degree of care and caution required of a per- son sui juris, then even if there was negligence on part of the par- ents that would not bar a recovery. See also Smith v. Rochester St. Ry. Co., 118 N. Y. Supp. 78, (1909). '" Shearman & Redfield on Negli- gence (4th Ed.), Vol. I, sees. 74, 78. ""Roller v. Sutter St. R. R. Co., 66 Cal. 230, (1884); Schierhold v. North Beach & Mission R. R. Co., 40 Cal. 447, (1871); Chicago West Division Ry. Co. v. Robinson, 127 111. 9, (1888) ; Pittsburgh, Ft "Wayne & Chicago R. R. Co. v. Vining, 27 Ind. 513, (1867) ; Payne v. Humeston & S. R. R. Co., 70 Tex. 584, 31 N. W. Rep. 886, (1887); Walters v. Chi- cago, Rock Island & Pacific R. R. CO., 41 la. 71, (1875); BarksduU v. New Orleans & Carrollton R. R. Co., 23 La. Ann. 180, (1871); Baltimore City Pass. Ry. Co. v. McDonnell, 43 Md. 534, 551, (1875); McMahon v. Northern Central Ry. Co., 39 Md. 438, (1873); Holly v. Boston Gas Light Co., 8 Gray 123, (1857); Wright V. Maiden & Melrose R. R. Co., 4 Allen 283, (1862); Slattery V. O'Connell, 153 Mass. 94, 26 N. E. Rep. 430, (1891); Casey v. Smith, 152 Mass. 294, 25 N. E. Rep. 734, (1890); Bliss v. Town of South Hadley, 145 Mass. 91, 13 N. E. Rep. 352, (1887); Ames v. Broadway & Seventh Ave. R. R. Co., 56 N. Y. Super. 3, 4 N. Y. Supp. 803, (1888); Honegsberger v. Second Ave. R. R. Co., 33 How. Pr. 193, (1864); Levy v. Dry Dock, East Broadway & Battery R. R. Co., 58 Hun 610, 12 N. Y. Supp, 485, (1890) ; Weil v. Dry Dock, East Broadway & Battery R. R. Co., 119 N. Y. 147, 28 N. Y. St. Rep. 944, (1890); O'Neil v. Kinken, 29 N. Y. St. Rep. 372, 8 N. Y. Supp. 554, (1890); Gumming v. Brooklyn City R. R. Co., 104 N. Y. 669, (1887); Williams v. Gardiner, 58 Hun 508, 12 N. Y. Supp. 612, (1890); Garoni v. Compagnie Nationale de Naviga- tion of Marseilles, 14 N. Y. Supp. 797, (1891); Ehrman v. Brooklyn City R. R. Co., 14 N. Y. Supp. 336, (1891); Fallon v. Central Park, North & East River R. R. Co., 64 N. Y. 13, (1876); Smith v. Grand St. Ferry R. R. Co., 11 Abb. N. C. 62, (1882) ; Stone v. Dry Dock, East Broadway & Battery R. R. Co., 46 Hun 184, (1887) ; Weil v. Dry Dock, East Broadway & Battery R. R. Co., 5 N. Y. Supp. 833, (1889) ; Mangam V. Brooklyn City R. R, Co., 38 N. Y. 455, (1868) ; Hyland v. Yonkers R. R. Co., 4 N. Y. Supp. 305, (1889); Ether- ington V. Prospect Park & Coney Island R. R. Co., 88 N. Y. 641, (1882); Ihl V. Forty-Second St. & Grand St. Ferry R. R. Co., 47 N. Y. 317, (1872); Mangam v. Brooklyn City R. R. Co., 36 Barb. 130, (1862) ; Oldfield V. New York & Harlem R. R. Co., 3 B. D. Smith 103, (1854), affirmed in 14 N. Y. 310 (1856); Mowrey v. Central City Ry. Co., 66 Barb. 43, (1873) ; Drew v. Sixth Ave. R. R. Co., 26 N. Y. 49, (1862) ; Kunz § 389.] THE LAW OF NEGLIGENCE. 637 for holding that the negligence of one standing in loco parentis mnst be imputed to a child not possessed of sufficient knowledge and discretion to avoid danger, those most commonly given being that the parent must be considered the agent of the child or that they are so closely identified that the negligence of the former must defeat a recovery in a suit by the latter.^^^ A doctrine which denies relief for culpable negligence resulting in killing or permanently crippling or disfigimng a child, on the legal fiction that an infant, but a few months or a year of age it may be, has constituted some one its agent, is still in need of a stronger de- fense or a more plausible apology for its existence than is to be found in any of the numerous decisions in which the doctrine has been enforced. It is so repugnant to every consideration of justice that it has never been adopted in a large majority of the states and has been repudiated in two of those in which for a time it was followed, while its rigor has been somewhat softened by the later rulings in those states in which the general principle is still asserted. -^^^ V. City of Troy, 104 N. Y. 344, 10 N. B. Rep. 442, (1887); Bkman v. Minneapolis St. Ry. Co., 34 Minn. 24, (1885); Fitzgerald v. St. Paul, Minneapolis & Manitoba Ry. Co., 29 Minn. 336, (1882); Dahl v. MiU. waukee City Ry. Co., 62 Wis. 652, (1885) ; Dahl v. Milwaukee City Ry. Co., 65 Wis. 371, (1886). The last two were cases brought by the ad- ministrator. But see Hooker v. Chicago, Minneapolis & St. Paul R. R. Co., 76 Wis. 542, 44 N. W. Rep. 1085, 2 Am. R. R. & Corp. Rep. 193, (1890). ™ Commenting upon these grounds, the supreme court of Mis- souri said: "It probably stands as well on no ground at all as it does on either of them." Winters v. Kansas City Cable Ry. Co., 99 Mo. 509, (1889). "" Government St. R. R. Co. v. Hanlon, 53 Ala. 70, (1875); Daley V, Norwich & Worcester R. R. Co., 26 Conn. 591, (1858) ; Chicago City Ry. Co. V. Wilcox, 138 111. 370, 21 L. R. A. 76, 27 N. E. Rep. 899, (1891), holding that where a child of tender years Is injured by the negligence of another, the negli- gence of his parents, even though present at the time of the accident, cannot be imputed to him so as to support the defense of contributory negligence to his suit for damages ; Chicago City Ry. Co. v. Wilcox, 138 111. 370, 24 N. B. Rep. 419, 8 L. R. A. 495, (1890), deciding that in on ac- tion by a child for personal injuries caused by the defendant's negli- gence, the negligence of the child's parents in permitting him to stray beyond their immediate control Into a tplace of danger cannot be Im- puted to the child; but see Chicago West Division Ry. Co. v. Ryan, 31 111. App. 621, (1889), in which it was assumed "that cases may arise in which the negligence of the parr 638 THE LAW OP BTEEET EAILWATS. [§ 390. § 390. Negligence of parents as affecting their right to dam- ages — Although an infant of tender years may recover for an injury partly caused by his own imprudent act, an adult cannot. If parents permit their children, who are too young to understand and avoid danger, to run at large without a protector in streets traversed by cars and other vehicles, or otherwise unnecessarily expose them to danger, they fail in the performance of their duty; and if injury results they are guilty of contributory negli- gence. It is their duty to use reasonable care to shield their children from danger, and that obligation is stronger where the risk is imminent, the degree of diligence and caution required of them being in proportion to the helplessness and indiscretion of those for whose safety they are responsible. "While in most ent will be imputed to the child." See also Metropolitan West Side Ry. Co. V. Kersey. 80 III. App. 301, (1898) ; Ferryman v. Chicago City Ry. Co., 242 111. 269, 89 N. E. Rep. 980, (1909); Westerfield v. Levis, 43 La. Ann. 63, 9 So. Rep. 52, (1891); Barnes v. Shreveport City Ry. Co., 47 La. Ann. 1218, 17 So. Rep. 782, (1895); Shippy v. Village of Au Sable, 85 Mich. 280, 48 N. W. Rep. 584, (1891); Battishill v. Humphrey, 64 Mich. 494, 28 Am. & Eng. R. R. Cas. 597, (1887); Winters v. Kansas City Cable Ry. Co., supra; but see Rosencranz v. Lindell St. Ry. Co., 108 Mo. 9, 18 S. W. Rep. 890, (1891) ; Huff v. Ames, 16 Neb. 139, (1884) ; Newman v. Philllpsburg Horse Car R. R. Co., 52 N. J. L. 446, 8 L. R. A. 43, 13 N. J. Law Jour. 234, (1890); Markey v. Consolidated Trac. Co., 65 N. J. L. 82, 46 Atl. Rep. 573, (1900); Bellefontaine & Indiana R. R. Co. V. Snyder, 18 Ohio St. 400, (1868); Erie City Pass. Ry. Co. V. Schuster, 113 Pa. St. 412, (1886); Whirley v. Whitman, 1 Head. (Tenn.) 610, 620, (1858); Bamberger v. Citizens' St. Ry. Co., 95 Tenn. 18, 31 S. W. Rep. 163, 28 L.„R. A. 486, (1895); Robinson v. Cane, 22 Vt. 213, (1850) ; Ploof v. Burlington Trac. Co., 70 Vt. 509, 41 Atl. Rep. 1017, 43 L. R. A. 108, (1898), from which the doctrine fol- lowed by the courts in the greater number of states has been desig- nated the "Vermont rule;" Norfolk & Petersburg R. R. Co. v. Ormsby, 27 Gratt. 455, (Va. 1876) ; Gulf, Colo- rado & Santa Fe Ry. Co. v. Mc- Whlrter, 77 Tex. 356, 14 S. W. Rep. 26, (1890); South Covington Ry. Co. V. Herrklotz, 104 Ky. 400, 47 S. W. Rep. 265, (1898); Beach, Con- tributory Negligence (3d Ed.), sees. 40, 43; Bishop, Non-Contract Law, sees. 681, 583; Wharton on Neg- ligence, sec. 310. The negligence of a parent, when not acting in that capacity, is not chargeable to the child, even though it tended to expose the child to injury from other persons. Thus the negligence of a father In driving a team cannot be attributed to a child while held in his mother's arms. The child was in the im- mediate custody of the mother, and her negligence only can be Imputed to the child. Hennessey v. Brook- lyn City Ry. Co., 6 App. Div. (N. Y.) 206, (1896). § 391.] THE LAW OF NEGLIGENCE. 639 jurisdictions the negligence of the parents does not forfeit the right of the child to recover damages caused by the concurrent negligence of a third party,*" it everywhere constitutes a complete bar to a recovery in a suit brought by them for their o\vn benefit. Whether the parents are present or not, if, by their cvTlpable negligence they permit their child to be in a place of danger whereby it sustains injuries, their conduct is in law a proximate cause of the accident. The doctrine of contributory negligence is applied as fully to the conduct of those who have a pecuniary interest in the personal safety of another as to the acts of those who are interested in their own preservation.*" § 391. Imputing negligence of parent or other custodian to the personal representative of the infant. — The doctrine, that any con- tributory negligence of a decedent which would have barred a recovery in an action by him if he had survived, will defeat a recovery in an action for the benefit of the next of kin, is too well settled to need or justify the citation of authorities in its support. But a question of some difficulty arises where the neg- ligence of the parent or other custodian is imputable to the child, and the action is brought by the personal representative for the benefit of the next of kin, including the parents whose negli- gence contributed to the fatal injury. If the action is for the benefit of those relatives only who were guilty of negligence, their failure of duty should constitute a complete defense; for it would be imreasonable and imjust to permit them, by an action of that kind, to recover damages for the loss of services of one whose life they had negligently sacrificed. But where there are "* Sec. 389, ante. Ry. Co. v. Pearson, 72 Pa. St. 1G9, "•Glassey v. Hestonville, Mantua (1872); Roller v. Sutter St. R. R. & Fairmount Pass. Ry. Co., 57 Pa. Co., 66 Cal. 230, (1884); Mangam v. fet. 172, (1868) ; Reed v. Minneapolis Broolilyn City R. R. Co., 36 Barb. St. Ry. Co., 34 Minn. 557, (1886); 130, (1882); Smith v. Hestonville, Gumming v. Brooklyn City R. R. Mantua & Fairmount Pass. Ry. Co., Co., 38 Hun 362, (1885); O'Flaherty 92 Pa. St. 450, (1880); San Antonio V. Union Ry. Co., 45 Mo. 70, (1869); St. Ry. Co. v. Caillouette. 79 Tex. Mack V. Lombard & Southwark St. 341, 345, 346, 15 S. W. Rep. 390, Pass. R. R. Co., 8 Pa. Co. Ct. Rep. (1891); O'Flaherty v. Union Ry. Co., 305, 18 Wash. Law Rep. 804, (1890); 34 Mo. 24, (1885); Williams v. Texas Pittsburgh, Allegheny & Manchester & Pacific R. R. Co., 60 Tex. 205, 640 THE LAW OP STEEET EAILWATS. [§ 392, surviving brothers and sisters, who by statute are made bene- ficiaries of the judgment jointly with their parents, and they were not at fault, it would seem to be inequitable to impose upon the innocent the penalty which might justly be enforced against the guilty if they alone were interested in the fund. The question was directly presented in a case in Iowa where an action was brought by a father as the administrator of an infant son. The parents were clearly guilty of negligence directly contributing to his death, but the coiirt held that their negligence would not defeat a recovery although they had a direct pecuniary interest in his estate. ^^^ But in many other cases decided elsewhere, in which the same question was directly involved, the courts have proceeded upon the theory that negligence of the parents which would defeat a recovery in an action brought by them constitutes an effectual bar to an action brought by an administrator for their benefit."* § 392. Negligence of husband not imputable to wife There is some conflict in the decisions, even in those rendered by courts of the highest jurisdiction, in applying the law of imputed con- tributory negligence to cases where the negligence of the husband was the proximate cause of an injury to his wife, for which she (1883); Ploof V. Burlington Trac. Beach & Mission R. R. Co., 40 Cal. Co., 70 Vt. 509, 41 Atl. Rep. 1017, 447, (1871); Chicago City Railway 43 L. R. A. 108, (1898). Co. v. Robinson, 127 111. 9, (1888); "■^Wymore v. Mahaska County, 78 Ihl v. Forty-Second St. & Grand St. la. 396, 399, (1889). Said Robin- Ferry R. R. Ca, 47 N. Y. 317, son, J., delivering the opinion of (1872); Dahl v. Milwaukee City Ry. the court: "It may be that a re- Co., 62 Wis. 652, (1885); reported covery in this case will result in again in 65 Wis. 371, (1886) ; Birkett conferring an undeserved benefit v. Knickerbocker Ice Co., 110 N. Y. upon the father, but that is a mat- 504, (1888) ; City of Chicago v. Hes- ter which we cannot investigate." ing, 83 111. 204, (1876); City of Chi- In Noonan v. Consolidated Trac. cago v. Starr, 42 111. 174, (1866); Co., 60 N. J. L. 444, 38 Atl. Rep. Bamberger v. Citizens' St. Ry. Co.. 759, 9 Am. & Eng. R. Cas. (N. S.) 95 Tenn. 18, 31 S. W. Rep. 163, 28 249, (1897), the court was equally L. R. A. 486, (1895), holding that no divided as to whether the negli- matter how the suit is brought, gence of sole next of kin would de- whether as administrator or as feat an action. father, it can be defeated by the "' Strutzel V. St. Paul City Ry. father's contributory negligence Co., 47 Minn. 543, 50 N. W. Rep. 690, when he is the sole beneficiary. See (1891) ; McMahon v. Mayor, 33 N. Y. also Ploof v. Burlington Trac. Co., 642, 647, (1865) ; Schierhold v. North 70 Vt. 509, 41 Atl. Rep. 1017, 43 L. § 392.J THE LAW OF NEGLIGENCE. 641 or her personal representative seeks to recover damages from a third person. The generally accepted and more reasonable rule on the subject is that the negligence of ai husband will not, merely because of the marital relation, be imputed to his wife. Therefore, where the wife is riding with her husband in a private vehicle, and is injured by reason of his careless driving, his negligence will not preclude a recovery by her against a third person whose concurring negligence was a proximate cause of the injury, except under such circumstances as would bar a recovery if the relationship of husband and wife did not exist.^^'^ R. A. 108, (1898); Murphy v. Derby St. Ry. Co., 73 Conn. 249, 47 Atl. Rep. 120, (1900). "'Louisville, New Albany & Chi- cago R. R. Co. V. Creek, 14 L. R. A. 733, (Ind. 1892); Shaw v. Craft, 37 Fed. Rep. 317, (1888); Hoag v. New York Central & H. R. R. R. Co., Ill N. Y. 199, (1888); Miller V. Louisville, New Albany & Chi- cago R. R. Co., 128 Ind. 97, (1890) ; Platz V. City of Cohoes, 24 Hun 101, (1881), affirmed in 89 N. Y. 219, (1882); Sheffield v. Central Union Telephone Co., 36 Fed. Rep. 164, (1888); Louisville Ry. Co. v. Mc- Carthy, 129 Ky. 814, 112 S. W. Rep. 925, 130 Am. St. Rep. 494, (1908). So it is held that the husband's knowledge of danger cannot be im- puted to his wife. Sitreet v. Inhabi- tants of Holyoke, 105 Mass. 82, 7 Am. Rep. 500, (1870). Compare City of Joliet V. Seward, 86 III. 402, (1877). The Supreme Court of California rendered a decision which is a con- spicuous exception to the general rule, unless the law of the case, as expressed in the syllabus, is quali- fied by the statute of that state. McFadden v. Santa Anna, Orange & Tustin St. Ry. Co., 87 Cal. 464, 11 L. R. A. 252, (1891). In that case it appears that the husband and wife, while riding in a private 4X vehicle, fell into an excavation made for the purpose of construct- ing a turnout from the main track of a street railway, which was not properly guarded, whereby the wife sustained permanent injuries. It was held that the contributory neg- ligence of the husband in driving into the excavation should be im- puted to the wife. Athough the right to such damages is in that state community property, and the husband is a necessary party to the action to recover damages for in- juries to his wife, the statement of the law Is made without qualifica- tion, that the contributory negli- gence of the husband is imputable to the wife, and will prevent a re- covery by her for injuries sustained by the negligence of a third party. The decision does not seem to have depended on the relation of two persons occupying the same private vehicle, where one is the servant or agent of the other. In support of the doctrine there announced, the court cited three cases, neither of which seems to sustain the rule in support of which they were cited. In Peck V. New York, New Haven & Hartford R. R. Co., 50 Conn. 379, (1882), although, as in the Califor- nia case, when the wife was in- jured she was riding with her hus- band, and the court held that his 642 THE LAW OF STEEET EAILWAYS. [§ 393. § 393. Imputing negligence of driver of private vehicle to fellow passenger — The English rule,^" holding the common carrier of passengers and goods to be in such a sense the agent of its patrons as to defeat an action by a passenger or shipper against a third person for damages resulting from the concurrent negligence of both, like certain other legal heresies, was imported into this country and adopted by some of our courts, which, not content with the original application of the rule, extended its operation and effect so as to include the drivers of private vehicles, creating, by implication of law, the relation of principal and agent where no such relation existed in fact. Under this rule a railroad or rail- way company can plead in bar of an action against it for the negli- gence of its servants, the contributory negligence of the driver of a private vehicle, although the plaintiff or person injured had no control whatever over the carriage or its driver. While this doctrine is not so repugnant to all principles of justice as that which imputes the negligence of parents to their children, it would in a majority of cases be so unjust in its practical applica- tion, that it has never obtained the general sanction of the Ameri- can courts. Although there are some notable exceptions, the doctrine generally maintained in this country is that the concur- negligence should be Imputed to and had been carried by her hus- her, the ruling was based, not upon band as a passenger gratuitously the ground that the driver was her and without any expectation of re- husband, but upon the fact that he ward. She was under the care of was in a certain sense her agent, her husband, who had the custody The same ruling was made in Hun- of her person, and was responsible toon V. Trumbell, 2 McCrary 314, for her safety, and any want of (1880), and Carlisle v. Sheldon, 38 ordinary care on his part is attrib- Vt. 440, (1886). In the latter case, ^able to her In the same degree on p. 447, Kellogg, J., said: "There ^^ ^ gjje were wholly acting for is nothing in the marital relation herself." Holly v. Boston Gas which would change the situation ^ight Co., 8 Gray 123, 131, 132, of the wife in respect to her bus- ^^^^^^^ g^^ 3^^^j^_ Contributory band's negligence under such cir- Negligence (3d Ed.), sec. 109. cumstances, for the same conse- quence would have followed if the See sec. 393, post, note, for cases relation, instead of being that of tearing upon the responsibility of husband and wife, had been that of o°e riding in a private vehicle for parent and child, father and ^^^ negligence of the driver, daughter, or master and servant, or *" Announced in Thorogood T. If she had been an entire stranger, Bryan, 8 C. B. 115, (1849). § 393.] THE LAW OP NEGLIGENCE, 643 rent negligence of the driver of a private vehicle will not defeat the action of a mere companion against a third person whose negligence was a proximate cause of the injuries sustained. This principle is frequently applied in actions for injuries caused by collisions between private vehicles and railroad trains or railway cars. "" Philadelphia, Wilmington & Baltimore R. R. Co. v. Hogeland, 66 Md. 149, 7 Atl. Rep. 105, (1886); St. Clair St. Ry. Co. v. Eadie, 43 Ohio St. 91, 97, 54 Am. Rep. 144, (1885) ; Robinson v. New York Cen- tral & H. R. R. R. Co., 66 N. Y. 11, (1876) ; Noyes v. 'Town of Bosca- wan, 64 N. H. 361, 10 Atl. Rep. 690, (1887). The negligence of the driv- er of a vehicle will not be imputed to a person who rides therein, by in- vitation of another, and who does not assume any control over the vehicle, and uses ordinary care, the driver not being an agent in such a sense as to justify the imputation of his negligence to one who rides with him. Nlsbet v. Gamer, 75 la. 314, 39 N. W. Rep. 516, (1888); Carlisle v. Brisbane, 113 Pa. St 544, 6 Atl. Rep. 372, (1886); State V. Boston & Maine R. R. Co., 80 Me. 430, 15 Atl. Rep. S6, (1888); Foil- man V. City of Mankato, 35 Minn. 522, 29 N. W. Rep. 317, (1886); Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. Rep. 452, (1888); Sheffield v. Central Union Tele- graph Co., 36 Fed. Rep. 164, (1888) ; Dyer v. Erie R. R. Co., 71 N. Y. 228, (1871) ; Masterson v. New York Central & Hudson River R. R. Co., 84 N. Y. 247, (1881); Gal- veston, Harrisburg & San Antonio Ry. Co. V. Kutac, 72 Tex. 643, 11 S. W. Rep. 127, (1889); Hoag v. New York Central & Hudson R. R. R. Co., Ill N. Y. 199, (1888); New York, Lake Erie & Western R. R. Co. v. Stelnbrenner, 47 N. J. L. 161, (1885); Little v. Hackett, 116 U. S. 366, (1885); Brickell v. New York Central & Hudson River R. R. Co., 120 N. Y. 290, (1890) ; Becke V. Missouri Pacific Ry. Co., 102 Mo. 544, 13 S. W. Rep. 1053, (1890), col- lision of a stage coach and rail- road train; Tompkins v. Clay St. R. R. Co., 66 Cal. 163, (1884); Georgia Pacific Ry. Co. v. Hughes, 87 Ala. 610, (1888) ; Louisville, Cin- cinnati & Lexington R. R. Co. v. Case, 9 Bush. (Ky.) 728, (1873); Elyton Land Co. v. Mingea, 89 Ala. 521, (1889), holding that there could be no imputed negligence as be- tween two members of a city fire department riding in the same ve- hicle to a fire where the one not driving was injured by reason of the defective condition of the defendant's street car tracks. See also Wright v. Cincinnati Ry. Co., 9 Ohio C. C. 503, (1895) ; Metro- politan St. Ry. Co. V. Powell, 89 Ga. 601, 16 S. B. Rep. 118, (1892) ; Noo- nan v. Consolidated Trac. Co., 64 N. J. L. 579, 46 Atl. Rep. 770, (1900) ; Chicago Ry. Co. v. Mochell, 193 111. 208, 61 N. E. Rep. 1028, (1901) ; Prank Bird Transfer Co. v. Krug, 30 Ind. App. 602, (1903); United Rys. Co. V. Beidler, 98 Md. 564, (1904) ; Robinson v. Metropolitan St. Ry. Co., 91 App. Div. (N. Y.) 158, (1904); Venuta v. New York W. & C. Trac. Co., 87 App. Div. (N. Y.) 561, (1903) ; Seifred v. Pen- na. R. R. 206 Pa. St. 399, (1903). Mr. Lewis has collated numerous cases in support of the proposition under consideration. In 1 Am. R. R. 644 THE LAW OF STEEET EAILWATS. [§ 394. § 394. Negligence of independent contractor. — A statute or ordinance which gives to a corporation the right to construct a railway track in the public highway imposes upon it a personal duty to see that the highway is not unnecessarily obstructed. Where a corporation obtains a license of that character and enters into a contract with a third party to lay its track, if the performance of the work will create a nuisance unless proper precautions are taken to avert such consequences and if the con- tract cannot be performed except under a license granted to the employer which retains the right of access to that portion of the street or highway covered by its franchise, the law requires it at its peril to exercise care to guard all excavations or obstructions created or placed by it upon the street, either directly or indi- rectly, so as to prevent injury to others; and if such precautions & Corp. Rep. 449, (1890). But, under same circumstances, the occupants of the private vehicle may be equal- ly responsible for the negligence of the driver, without resorting to the doctrine of imputed negligence. Donnely v. Brooklyn City R. R. Co., 109 N. Y. 16, (1888). The rule es- tablished by Thorogood v. Bryan, supra, was repudiated in cases of The Bernina, L. R. 12 P. D. 58, (1886), and Mills v. Armstrong, L. R. 13 App. Cas. 1, (1888). The earlier English doctrine was adopt- ed in Pennsylvania; Lockhart v. Lichtenthaler, 46 Pa. St. 151, (1863); Philadelphia & Reading R. R. Co. V. Boyer, 97 Pa. St. 91, (1881). Under the facts stated in Cincin- nati Trac. Co. v. Sanders, 12 Ohio C. C. (N. S.) 266, (1909), it was held that a woman could not recover for injuries sustained in a collision with a street car, when she saw It ap- proaching nearly half a square away, but made no attempt to warn the driver of the vehicle In which she wag riding; but it is held that the negligence of a chauffeur who Is driving an automobile for hire can- not be imputed to a passenger therein, Wilson v. Puget Sound Elec. Ry. Co., 52 Wash. 522, 101 Pac. Rep. 50, 132 Am. St. Rep. 1044, (1909) When the negligence of a grip- man concurs with negligence of a third person in causing injury to the conductor, and the grip-man is under the direction and control of the conductor, the grip-man's negli- gence will be imputed to the con- ductor, so as to debar the latter from recovering for the injury from such third person. Minster V. Citizens' St. Ry. Co., 53 Mo. App. 276, (1893). See Schron v. Staten Island Ry. Co., 16 App. Div. (N. Y.) Ill, (1897), where son and father being engaged in a joint occupation or business, the negligence of one may be attributed to the other. Accord. Hoimark v. Consolidated Trac. Co., 9 Am. & Eng. R. Caa. (N. S.) 380, (N. J. 1897). See also Strauss v. Newburgh Elec. Ry. Co., 6 App. Div. (N. Y.) 264, (1896); Hilts V. Foote, 125 Mich. 241, (1900) ; Lightfoot v. Winnebago Trac. Co., 123 Wis. 479, (1905). §395.J THE LAW OF NEGLIGENCE. 645 are not taken and injury results the fact that the work was being done by a so-called independent contractor will not exonerate the employer from liability. ■'-'' § 395. Intoxication as evidence of negligence Intoxication is no excuse for contributory negligence. One who voluntarily drinks intoxicating liquors until he becomes helpless and unable to feel and act upon the ordinary instincts of self-preservation and in that condition places himself in a position of danger, is guilty of such negligence as will defeat a recovery, unless the conduct of the defendant was willful or its negligence occurred subse- quent to that of the injured person. •'^■'- Voluntary intoxication will not excuse one who attempts to cross a railroad track, or while traveling by street car or other conveyance, from the etxercise of the same degree of care as the law demands of sober men.-^^^ But ^"Woodman v. Metropolitan R. R. Co., 149 Mass. 335, 4 L. R. A. 213, (1889); Cincinnati, Hamilton & Dayton R. R. Co. v. Van Dome, 1 Ohio Cir. Ct. Rep. 292, (1885). See Circleville v. Neuding, 41 Oliio St. 465, (1885) ; Larson v. Metropolitan St. Ry. Co., 110 Mo. 234, (1892); Weber v. Buffalo Ry. Co., 20 App. Div. (N. Y.) 292, (1897) ; Thompson V. Lowell, L. & H. St. Ry. Co., 170 Mass. 577, 40 L. R. A. 345, (1898). Contra: Pulton County St. Ry. Co. V. McConnell, 87 Ga. 750, 13 S. E. Rep. 828, (1891); Hackett V. Western Union Telegraph Co., 80 Wis. 187, 10 Ry. & Corp. Law Jour. 390, 2 St. Ry. Review 14, (1891); Sanford v. Pawtucket St. Ry. Co., 19 R. I. 537, 35 Atl. Rep. 67, 33 L. R. A. 564, (1896) ; Thomas v. Altoona Ry. Co., 191 Pa. St. 361, 43 Atl. Rep. 215, (1899). See Patter- son, Railway Accident Law, sec. 123, p. 122. '^ Chicago City Ry. Co. v. Lewis, 5 111. App. 242, (1880); Bradley v. Second Ave. R. R. Co., 8 Daly 289, (1879) ; Werner v. Citizens' Ry. Co., 81 Mo. 368, (1884); Weeks v. New Orleans & Carrollton R. R. Co., 32 La. Ann. 615, (1880); Missouri Pa- cific Ry. Co. V. Evans, 71 Tex. 361, 9 S. W. Rep. 325, (1888) ; Welty v. Indianapolis & Vincennes R. R. Co., 105 Ind. 55, (1885); Hubhard v. Town of Mason City, 60 la. 400, (1882) ; Monk v. Town of New Utrecht, 104 N. Y. 552, (1887) ; East Tennessee & W. N. C. R. R. Co. v. Winters, 85 Tenn. 240, (1886); Kingston v. Ft. Wayne Ry. Co., 112 Mich. 40, 40 L. R. A. 131, (1897); Hudson v. Lynn Ry. Co., 185 Mass. 510, (1904); Heinel v. Peo- ples Ry. Co., 6 Pennewell (Del.) 428, 67 Atl. Rep. 173, (1907); Little Rock Ry. Co. v. Billings, 173 Fed. Rep. 903, (1909). "^ Chicago City Ry. Co. v. Lewis, supra; Bradley v. Second Ave. R. R, Co., supra; Werner v. Citizens' Ry. Co., supra; West Chicago St. Ry. Co. V. Ranstead, 70 111. App. Ill, (1897); Bageard v. Consoli- dated Trac. Co., 64 N. J. L. 316, 45 Atl. Rep. 620, 49 L. R. A. 424, (1899). 646 THE LAW OF STEEET EAILWAT3. [§ 396. the intoxication of one who is known to be in a position of danger will not justify another in failing to take proper precautions to prevent inflicting needless injury. Indeed, the knowledge of the condition of one who has been reduced to a state of helplessness by intoxication may impose upon others the duty of exercising special care and dUigence.^^' §396. Criminal negligence — A statute of Massachusetts^'" imposed upon railroad and street railway corporations a penalty by fine for causing the death of a passenger or other person not an employe in the exercise of due diligence, "by reason of the negligence or carelessness of the corporation operating the rail- road or street railway, or of the unfitness or gross negligence or carelessness of its seirants or agents while engaged in its busi- ness." In a criminal proceeding under this act, charging the unfitness and gross negligence of a driver of a street car whereby a passenger was killed, it appeared that the driver, on being relieved by another driver for the purpose of taking a meal, while ia the act of leaving the car pushed one of the passengers from the platform while the car was in rapid motion, thereby causing fatal injuries. The company defended on the ground, among others, that as soon as the driver was relieved and while leaving the car he was no longer in the service of the company. But the court held that the defendant company was liable for whatever injuries occurred from the negligence or carelessness of its servants in doing whatever was necessarily incident to their employment, which must include their conduct while entering or leaving the cars on which they were employed.-'^® "'Werner v. Citizens' Ry. Co., Ry. Co., 143 Mass. 501, (1887). Said supra; Louisville, Cincinnati & Lex- Gardner, J., delivering the opinion ington R. R. Co. v. Sullivan, 81 Ky. of the court: "If it should be he d 624, (1884) ; Kean v. Baltimore & otherwise, passengers upon horse Ohio R. R. Co., 61 Md. 154, (1883); cars might be subject to the bru- Seymour v. Town of Lake, 66 Wis. tality of one in the service of the 651, (1866); Benson v. Tacoma Ry. corporation, whom the corporation Co., 51 Wash. 216, 98 Pac. Rep. 605, placed upon its cars, and yet for 130 Am. St. Rep. 1096, (1908). whose acts while upon the car the '" Pub. Stats. (1882), Chap. 112, corporation would not be liable un- sec. 212. less he held the reins in his hands "5 Commonwealth v. Brocton St. and was actually driving the horses §§ 397, 398.] THE lAW OF NEGLIGENCE. 647 § 397. Exclamations of pain — In an action for personal injuries, although the injured person is a witness and testifies at the trial, it is competent to prove exclamations or expressions of present suffering or pain, made at the time the injuries were received or afterwards. ^^® But declarations of past suffering are not admissible,^^^ and the true rule governing the admission of expressions of present suffering would seem to exclude mere voluntary statements or declarations not accompanying physical manifestations which they might be said fairly to characterize. -^^^ § 398. Declarations of injured person — Under the well known rule which excludes hearsay testimony, the declarations made hy an injured person as to the cause of his injuries or the man- ner in which they were inflicted are not competent evidence, if at the time of his careless and neg- ligent act." In an earlier case, in which a company was prosecuted for killing a child by running over it while the driver of the car was looking at a fire in the neighbor- hood, the court held that the evi- dence was sufficient to warrant the jury in finding that the defendant was guilty of negligence. Common- wealth V. Metropolitan R. R. Co., 107 Mass. 236, (1871). Before the enactment of the stat- ute of 1886. chap. 140, authorizing such an action, a street railway corporation was not liable in Massa- chusetts in an action of tort, for negligently causing the death of a person, whether a passenger or not. Holland v. Lynn & Boston R. R. Co., 144 Mass. 425, (1887) ; Gunn v. Cam- bridge R. R. Co., 144 Mass. 430, (1887), on the authority of the Hol- land Case. ^ Hagenlocher v. Coney Island & Brooklyn R. R. Co., 99 N. Y. 136, (1885); Nichols v. Brooklyn City R. R. Co., 30 Hun 437, (1883), where the complaints were made three minutes after the injury; Laughlin V. St. Ry. Co. of Grand Rapids, 80 Mich. 154, (1890), admitting such testimony to be competent under some circumstances, but holding that proof of such exclamations or com- plaints should not be admitted when made more than four years after the accident, and after the commence- ment of the suit, and shortly before the trial; Nichols v. Brooklyn City R. R. Co., 30' Hun 437, (1883); Ken- nedy V. Rochester City & Brighton R. R. Co., 54 Hun 183, (1889); Har- ris V. Detroit City Ry. Co., 76 Mich. 227, (1889); Lewke v. Dry Dock, East Broadway & Battery' R. R. Co., 46 Hun 283, (1887) ; Uransky v. Dry Dock, Bast Broadway & Battery R. R. Co., 44 Hun 119, (1887) ; Birming- ham Union Ry. Co. v. Hale, 90 Ala. 8, 8 So. Rep. 142, (1890), holding that a physician may testify that when he first saw the plaintiff after she received the injuries "she was complaining of pain from the in- juries which she said she had re- ceived." Rice on Evidence, p. 337. ^^ Roche V. Brooklynpity & New- town R. R. Co., 105' N. Y. 294, (1887). "* Roche V. Brooklyn City & New- town R. R. Co., 105 N. Y. 294, 648 THE LAW OS" STREET EAILWATS. [§ 398. they were made subsequent to the events to which they relate. The general rule which the courts follow, in theory at least, is that such statements must be excluded if they were merely nar- rative, even if they were made within a very short time after the accident. The true inquiry is whether the declaration offered on behalf of the plaintiff was a verbal act, which illustrated, ex- plained or interpreted other parts of the transaction of which it was itself a part, or was merely a history or part of a history of a completed past affair. In the one case it is competent, in the other it is not.i2» (1887) ; Nichols v. Brooklyn City R. R. Co., supra; Kennedy v. Rochester City & Brighton R. R. Co., supra. "'The interpretation which var- ious courts have given to this rule is illustrated hy the following cases: In an action to recover damages for personal injuries to plaintiff's intestate, a boy, causing his death, it was claimed that he was thrown from defendant's car and run over. Immediately after he had arisen and gone to the sidewalk and sat down, he stated, in answer to a question as to what was the matter, that the conductor threw him off the car. The admission of this statement in evidence was held to be error, although no witnesses were produced on either side who saw the accident, or could testify to the manner in which it occurred. Chicago West Division Ry. Co. v. Becker, 128 111. 545, (1889). In an action for personal injuries by a passenger who claimed that she was thrown from the car to the ground, it appeared that immedi- ately after she had arisen, she picked up her bundles and brushed herself, then secured the name of the driver of the car and went to her house, which was about 150 or 200 yards away, deposited her bun- dles and went across the street to the house of a friend, where she ap- peared to be greatly excited, and in reply to an inquiry as to what was the matter, made a statement as to the manner in which she was in- jured. The admission of this state- ment in evidence was held to be error, as it formed no part of the res gestae. Augusta & Summerville R. R. Co. V. Randall, 79 Ga. 304, (1887). The statement of a passenger relative to the circumstances under which he was expelled from a train two days before, is inadmissible. Perlmutter v. Highland St. Ry. Co., 121 Mass. 497, (1877). In an action for the death of a child, declarations of the. child as to the manner in which he was hurt, made at the scene of the accident, while surrounded by per- sons who witnessed the calamity, are admissible as part of the res gestae; but what he said after be- ing carried 50 or 75 feet, and laid on a cot, and from five to twenty minutes after the accident, is not admissible. Leahey v. Cass Ave. & Pair Ground Ry. Co., 97 Mo. 165, (1888). Declarations of a decedent made within two minutes after the injury was sustained, while he remained in the presence of the train and the defective machinery causing the § 399.] THE LAW OF NEGLIGENCE. 649 § 399. Declarations and conduct of defendant's servants — privileged communications — In an action to recover damages for personal injuries, the declarations of a servant of the defendant are not admissible against it, as parts of the res gestse, unless it appears affirmatively, before such declarations are admitted, that they were made at the time the injuries were inflicted. This principle applies to acts as well as declarations and to all cases alike, whether the act complained of as a ground of recovery was willful or merely negligent, and excludes previous threats as well as subsequent admissions and acts indicating indifference or malice. If the declaration offered in evidence was not an actual part of the transaction on account of which the plaintiff seeks damages, it is inadmissible, although made at the place of the accident, in the presence of those who witnessed it and imme- diately after it occurred. In such cases time is a very important, although not always the controlling, element in determining the question of competency. But in every case such declarations must be excluded if they do not tend to give character to a con- temporaneous act, and are merely narrative, however nearly con- nected in time they may be with the main fact in controversy.^^" injury, were held to be admissible it was not proper to admit in evi- as part of the res gestae. Louis- dence a statement by the conductor, ville. New Albany & Chicago Ry. Immediately after she fell and he- Co. V. Buck, 116 Ind. 566, 2 L. R. A. fore he had gone to her assistance, 520, (1888). that the act was caused by his neg- Ten minutes after the accident, ligence; Whittaker v. Eighth Ave. while lying on the tracks, the in- R. R. Co., 51 N. Y. 295, (1873), de- jured lad told his mother that the ciding that the declarations of the conductor had pushed him. off; held driver of a car were inadmissible admissible, as res gestas, but not which were made after he had left declarations made on the way to the place of the accident; De Sou- the hospital in an ambulance, cey v. Manhattan Ry. Co., 15 N. Y. Washington & Georgetown Ry. Co. Supp. 108, (1891), in which it was V. McLane, 11 App. Cas. (D. C.) decided that a statement made by 220, (1897). See also Weber v. St. a guard on an elevated car to an Paul City Ry. Co., 67 Minn. 155, injured passenger, immediately after 69 N. W. Rep. 716, (1897). the occurrence, "you must be ih- ™ Williamson v. Cambridge R. R. jured," was no part of the res Co., 144 Mass. 148, (1887), In which gests; Joslin v. Grand Rapids Ice it was held that, in an action by & Coal Co., 53 Mich. 322, (1884), a passenger who alleged that she in which it was held that it was was negligently thrown to the not proper to show that immedi- ground while alighting from a car, ately after a collision between a 650 THE LAW OF STEEET EAILWATS, [§ 400. "Where a report is made to a company or its claim agent by the con- ductor or motor-man of a car detailing the circumstances of an accident, such a report is a confidential communication between a principal and its agent. ^*^ § 400. Declarations of third persons. — For reasons still stronger, if possible, than those which support the rules of evi- buggy and a cart, one of the drivers of the vehicles asked the otner what he meant, to which the latter answered in an indifferent and im- pudent manner, that he could not help it; Luby v. Hudson River R. R. Co., 17 N. Y. 131, (1858), wherein the court decided that the dec- laration of a driver immediately after an accident, and before he had started his car, that he could not stop the car because the brakes were not in order, was merely hearsay, and that it was not proper to admit in evidence the fact that the driver had been arrested by a policeman, on account of his al- leged misconduct; Barry v. Second Ave. R. R. Co., 16 N. Y. Supp. 518, (1891), holding that, in an action for damages for Injury to a child, it was not proper to admit evidence of the careless and Inhuman con- duct of the driver of the car after the child had been injured and car- ried home, and that its admission was a reversible error, as its tend- ency was to inflame the jury and augment the damages allowed; Wormsdorf v. Detroit City Ry. Co., 75 Mich. 472, (1889), in which the court decided that the testimony of a witness to a conversation between the driver and superintendent, after the accident, in which the driver stated that he had reported the car as having a bad brake, was in- admissible to bind the company with notice of the defect complained of; Adams v. Hannibal & St. Jo- seph R. R. Co., 74 Mo. 553, (1881), holding declarations by trainmen as to the manner of the accident, within two minutes alter its oc- currence, to be inadmissible; Furst V. Second Ave. R. R. Co., 72 N. Y. 542, (1878); Whittaker v. Eighth Ave. R. R. Co., 51 N. Y. 295, (1873) ; Vicksburgh & M. R. R. R. Co. v. O'Brien, 119 U. S. 99, (1886) ; Ten- nis v. Inter-State Consolidated Rapid Transit Ry. Co., 45 Kan. 503, 25 Pac. Rep. 876, (1891). In the following cases, the ruling was somewhat more favorable to the plaintiffs: Hanover R. R. Co. v. Coyle, 55 Pa. St. 396, 402, (1867); Koetter v. Manhattan Ry. Co., 13 N. Y. Supp. 458, (1891); Quincey Horse Ry. Co. & Carrier Co. v. Gnuse, 137 111. 264, 27 N. B. Rep. 190, (1891), holding that the state- ments made by the driver of a street car, just after it had stopped and while the plaintiff was still under it, were admissible. See also Coll v. Easton Transit Co., 180 Pa. St. 618, 37 Atl. Rep. 89, (1897) ; McClellan v. Ft. Wayne Ry. Co., 105 Mich. 101, 62 N. W. Rep. 1025, (1895); Ruschenberg v. Southern Elec. Ry. Co., 161 Mo. 70, (1900) ; Wilson v. Nassau Elec. Ry. Co., 56 App. Div. (N. Y.) 570, (1900); French v. Seattle Trac. Co., 26 Wash. 264, 66 Pac. Rep. 404, (1901); Tri City Ry. Co. v. Bren- nan, 108 111. App. 471. (1903). "'Ex parte Schoepf, 74 Ohio St. 1, (1906). See also Ex parte Jen- nings, 60 Ohio St. 319, (1899j; In re Raub, 65 Ohio St 128, (1901). § 401.] THE LAW OF NEGLIGEITCE. ' 651 deuce stated in the last two sections, the declarations of one who had no. connection with, or personal knowledge of, the trans- action involved in the case on trial, are not admissible in evidence for either party, except, in proper cases, for the purpose of im- peachment. This principle clearly excludes statements of fact or opinion by the relatives of the injured person, and all others who are neither parties to the action nor interested therein, which are offered as the substantial declarations of the real cause of the injury, if they were neither agents for the parties nor witnesses to the occurrence. Such testimony is mere hearsay.'^^* §401. Evidence of other accidents ^In an action based on the alleged negligence of the defendant in using defective ma- chinery or appliances, or in permitting property over which it had control to remain in an unsafe condition, when it is charged that the defendant had knowledge of the defect or danger or by the exercise of due care and diligence would have known it in time to prevent the injuries complained of, it is proper on the trial to admit evidence of prior accidents which were caused by the same defect or dangerous condition. Manifestly such evi- dence is competent for the purpose of bringing home to the defendant such knowledge as might fairly tend to prove that it had negligently omitted to make necessary repairs or take other adequate precautions to prevent accidents. For this purpose, how- ever, it would seem that the defendant's knowledge of such prior accidents should be established in order to justify the intro- duction of the testimony. Eut the courts usually have not made this distinction, and admit the evidence of prior accidents, not only for the purpose of showing the defendant's knowledge of the situation, but also to show the existence of the defect. Thus, in an action to recover damages caused by the derailment of a street car, where it appeared that the track had remained in the same condition, it was held to be proper to show that other cars "'Baltimore City Pass. Ry. Co. v. close's Admr., 88 Va. 267, 13 S. E. McDonnell, 43 Md. 534, 535, (1875).; Rep. 454, (1891); Ehrhard v. Metro- Senn v. Southern Ry. Co., 108 Mo. polltan St. Ry. Co., 69 App. Div. (N. 142, 18 S. W. Rep. 1007, (1892); Nor- Y.) 124, (1902); Indianapolis St. Ry. folk & Western R. R. Co. v. Grose- Co. y. Whittaker, 160 Ind. 125, (1903). 652 THE LAW OF STREET EAILWAYS. [§ 402. had left the track at or about the place where the accident com- plained of occurred, for the purpose of showing notice to the defendant of the condition of its track and to prove that the track at that point was in a dangerous condition. So it has been held that for the latter purpose it is proper to show that cars left the track at or near the same point after the occurrence of the accident in question, if there had been no material change in its condition since that time.-'*^ § 402. Precautions adopted after accident. — ^It is the general although not universal rule, that changes made or precautions taken after an accident cannot be proved for the purpose " Dougherty v. Missouri R. R. mend Ry. Co. v. West, 100 Va. 184, Co., 97 Mo. 647, 8 S. W. Rep. 900, 40 S. E. Rep. 643, 25 Am. & Eng. R. (1888). Cas. (N. S.) 177, (1902); Chatta- '^ Agnew v. Brooklyn City R. R. nooga R. T. Co. v. Walton, 105 Tenn. Co., 20 Abb. N. C. 235, (1887). 415, 58 S. W. Rep. 737, (1900); ^"Dallas City R. R. Co. v. Bee- White v. Wilmington Ry. Co., 6 man, 74 Tex. 291, (1889). Pennewell (Del.) 105, 63 Atl. Rep. "1 San Antonio St. Ry. Co. v. Call- 931, (1906) ; Denver City Tram- louette, 79 Tex. 341, 15 S. W. Rep. way Co. v. Martin, 44 Colo. 324, 390, (1891). 98 Pac. Rep. 836, (1908); Brunhild See also Slaughter v. Metropoli- v. Chicago Union Trac. Co., 239 111. tan St. Ry. Co., 116 Mo. 269, 58 Am. 621, 88 N. E. Rep. 199, (1909); Fla- & Eng. R. Cas. 604, (1893); Red- herty v. Butte Elec. Ry. Co., 107 ford V. Spokane St. Ry. Co., 9 Wash. Pac. Rep. 416, (Mont, 1910). 42 658 THE LAW OF STEEET EAILWAYS. [§ 405. canons of interpretation to tlie terms of the fundamental law or legislative enactment which prescribes the liability of the share- holder; and the language used in various jurisdictions differs so materially that the decision in one state may have little or no weight in another. In Michigan it has been held that the claim of a passenger who has been injured by the negligence of a corporation carrier cannot be enforced against stockholders under a statute which provides that they shall be liable in their indi- vidual capacity for all debts of the company. ^^* The same con- struction has been given to somewhat similar provisions in Missouri/^^ Nebraska/" New York^^** and Pennsylvania. ^^^ But in Ohio it is held that a constitutional provision, that dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law, is a remedial provision, intended to afford a remedy to those who have just claims against insolvent corporations; and that, giving to the word "dues" this construction, it includes, not only debts arising upon a contract, but also demands for liquidated damages sound- ing in tort.-^®^ And some courts have held that the term, all debts and liabilities, is sufSciently comprehensive to include claims aris- ing from torts.^^^ In Massachusetts, where under a statute directors "=Bohn V. Bro-wn, 33 Mich. 257, "'Archer v. Rose, 3 Brewst 265, (1876). (1863). "'Cable V. McCune, 26 Mo. 371, "'Rider v. Frltohey, 49 Ohio St. (1858). 285, 30 N. B. Rep. 692, (1892), af- "' Doolittle V. Marsh, 11 Neb. 243, firming 3 Ohio C. C. 89, (1888) ; hold- (1881), holding that the word ing stockholders in a street railway "debts" in the statute only included company liable for a claim arising the debts arising upon contracts, from negligence in the management express or implied, and not claims of one of its cars, and containing a sounding in tort, as for negligence full review of the cases decided in the operation of a street railway, elsewhere. "" Heacock v. Sherman, 14 Wend. "« Carver v. Braintree Manufac- 58, (1837), deciding that under a turing Co., 2 Story 432, 433, (1843) ; statute providing that stockholders Milldam Foundry Co. v. Hovey, 21 shall be liable "jointly and sever- Pick. 417, 419, (1839). See gener- ally • • • for the payment of ally on the subject covered by this all debts contracted" by the cor- section. Cook, Corporations (6th poration, they were not individually Ed.), sec. 217; Morawetz, Private liable for damages occasioned by Corporation, sees. 880, 881; Beach, negligently permitting a bridge to Private Corporations, sec. 151; Child remain out of repair. v. Boston & Fair Haven Iron Works, § 406.J THE LAW OF NEGLIGENCE. 659 of a street railway company, within limits therein stated, are liable "for all dehts and contracts made by the company," it was held that a judgment secured in an action of tort was not a "debt" of the company.^"* § 406. The release of and satisfaction by one of two joint tort- feasors discharges all. — Although separate actions may be bi ought against several defendants whose joint negligence has contributed to produce a single injury, satisfaction received from either of them for the injuries sustained will operate as a discharge of all. This will be the legal effect, whether the amount received was paid voluntarily or recovered by action at law ;^^'' and, where there has been an accord and satisfaction by one, it is imma- terial that the release stipulated that the others should not be discharged. ^*^ In an action brought to recover a second satisfac- tion for the same injury, the plaintiff will be estopped from asserting that the party to whom the release was given was not in fault and not liable for the injury. -^^^ 137 Mass. 516, 521, (1884) ; Stanton v. Wilkeson, 8 Benedict 357, (1876). A" BtocUholder, although a corporation and the owner of a controlling in- terest in a defendant corporation, Is not primarily liable for its culpable negligence, Atchison, Topeka & Santa Fe R. R. Co. v. Cochran, 43 Kan. 225, 23 Pac. Rep. 151, (1890). ^ Savage v. Shaw, 195 Mass. 571, 81 N. E. Rep. 303, (1907). •"Seither v. Philadelphia Trac. Co., 125 Pa. St. 397, 4 L. R. A. 54, (1889) ; Gilpatrick v. Hunter, 24 Me. 18, 41 Am. Dec. 370, (1844); Bar- rett V. Third Ave. R. R. Co., 45 N. y. 628, (1871) ; Turner v. Hitchcock, 20 la. 310, (1866); Lord v. Tiffany, 98 N. Y. 412, (1885) ; Cooley on Torts (2d Ed.), p. 161; Addison on Torts (6th Ed.), p. 120; McGehee v. Shaffer, 15 Tex. 198, (1855); Tompkins v. Clay St. Ry. Co., 66 Cal. 163, (1884); Wallace v. Third Ave. Ry. Co., 36 App. Div. (N. Y.) 57, (1898); O'Brien V. Brooklyn Heights Ry. Co., 80 App. Dlv. (N. Y.) 474, (1903). See sec. 363, ante, and Hayes v. Chicago Teleph. Co., 218 111. 414, 75 N. E. Rep. 1003, (1905). ^"Seither v. Philadelphia Trac. Co., supra; Ellis v. Bitzer, 2 Ohio 89, 15 Am. Dec. 534, (1825); Gun- ther V. Lee, 45 Md. 60, 24 Am. Rep. 504, (1876); Mitchell v. Allen, 25 Hun 543, (1881); Spurr v. North Hudson Co. Ry. Co., 56 N. J. L. 346, 28 Atl. Rep. 582, (1894); Zim- mer v. Third Ave. Ry. Co., 36 App Div. (N. Y.) 265, (1899); DeDoug- las V. Union Trac. Co., 198 Pa. St 430, (1901) ; Cleveland v. Bangor St Ry. Co., 87 Me. 259, 32 Atl. Rep 892, 1 Am. & Eng. R. Cas. (N. S.) 336, (1895). deciding that the re- turn unsatisfied of execution against one tort-feasor, after judgment was secured against him, does not bar an action against a joint tort-feasor. "''Tompkins v. Clay St. Ry. Co., supra; Wiest v. Elec. Trac. Co., 200 Pa. St. 148, 49 Atl. Rep. 891, (1901), 660 THE LAW OF STBEET EAILWATS. [§ 407. § 407. Physical inspection, examination and tests — ^A party, the extent and character of whose personal injuries are in issue, undoubtedly has the right to exhibit his injuriesi to the court and jury at the trial.^^* The practice of permitting the plaintiff in such a case to make profert of his person is so general that an extensive citation of authorities is unnecessary. But if the plaintiff omits to exercise his privilege and the defendant moves the court to order him to submit to an inspection by the jury or to an examination by experts, a question of much more difficulty arises. If such an application is made some discretion must be left to the trial judge in granting or refusing it; but there is good reason for maintaining that an abuse of his discretion would be reversible error. Where the interests of justice require it, the court should order the plaintiff to submit to an examina- tion by experts called by the defendant or to an inspection by the jury, and it may order him to perform such physical acts in the presence of the jury as will fairly test the nature and extent of his injuries or the character and extent of his physical dis- ability.'^** But it is not error for the trial court to refuse an "' Mulhado V. Brooklyn City R. R. Ark. 275, (1885); Shepard v. Mis- Co., 30 N. Y. 370, (1864) ; Cooper souri Pacific R. R. Co., 85 Mo. 629, V. St. Paul City Ry. Co., 54 Minn. (1885); Alabama Great Southern 379, 58 Am. & Eng. R. Cas. 598, Ry. Co. v. Hill, 90 Ala. 71, 9 So. Rep. (1893); Rost v. Brooklyn Heights 722, (1890); 2 Am. R. R. & Corp. Ry. Co., 10 App. Div. (N. Y.) 477, Rep. 421-426, containing a very elab- (1896); Omaha St. Ry. Co. v. Em- orate and valuable note by the minger, 57 Neb. 240, 77 N. W. Rep. editor, Mr. Lewis. See also a re- 675, (1898). view of the cases by Mr. Merrill i"In support of the authority of in 31 Cent. Law Jour. 376, (1890). the court to make such orders and In the absence of a state statute its power to enforce them, and gen- conferring that right, the federal erally as to the practice in such circuit court will not order the cases, see Schroeder v. Chicago, R. plaintiff to submit to a physical ex- I. & P. R. R. Co., 41 la. 344, (1875); amination. Union Pacific Ry. Co. v. Miami & Montgomery Turnpike Botsford, 141 U. S. 250. (1891); but, Co. V. Bailey, 37 Ohio St. 104, while the court will not require the (1881) ; Atchison, Topeka & S. F. plaintiff to submit to a personal ex- R. R. Co. V. Thul, 29 Kan. 466, amination by a surgeon, "the de- (1883) : Walsh v. Sayre, 52 How. Pr. fendant may make request upon the 334, (1868) ; Archer v. Sixth Ave. plaintiff to consent to such examina- R. R. Co., 52 N. Y. Super. 378, tion, and in case of refusal the de- (1885) ; Hess v. Lowery, 122 Ind. fendant should be permitted to dls- 225, (1889); Sibley v. Smith, 46 close such a refusal on the trial. § 408.] THE LAW OF NEGLIGENCE. 661 application to allow the jury to witness experiments upon the railway track where the accident occurred. Such cases do not fall within the ordinary provisions of statutes allowing a view by the jury of the scene of an accident ; and, if siich' procedure were authorized or proper in any case, the question would be one rest- ing in the sound discretion of the court. ^^^ § 408. Fright and its consequences — proximate cause Tem- porary fear, nei-vous excitement or distress, or danger alone is not recognized by the law as a sufScient cause of action, or as an element of damages in a recovery against a carrier in favor of a passenger who has been placed by it in a position of apparent imminent peril ;^®'' but if such fright causes nervous convulsions and illness, the negligence which produced the nervous shock is a proximate cause of the resulting bodily injuries or impairment of health for which an action may be maintained.''®^ and comment thereon to the jury, to the plaintiff's prejudice," Denver City Tramway Co. v. Norton, 141 Fed. Rep. &99, (1905). If, however, the state statute confers such right of examination, it will be enforced by the federal court, Camden & Sub- urban Ry. Co. V. Stetson, 177 U. S. 172, (1900). '" Smith V. St. Paul City Ry. Co., 32 Minn. 1, 7, (1884) ; Dederichs v. Salt Lake City Ry. Co., 14 Utah 137, 46 Pac. Rep. 656, (1896). '"Ewing V. Pittsburgh, C. C. & St. Louis Ry. Co., 147 Pa. St. 40, 23 Atl. Rep. 340, 45 Alb. Law Jour. 211, (1892); Fix v. Borkey, 126 Pa. St. 184, (1889); Indianapolis & St. L. Ry. Co. V. Stables, 62 111. 313, (1872) ; Canning v. Williamstown, 1 Gush. 451, (1848) ; Johnson v. Wells, Fargo & Co., 6 Nev. 224, (1870). Nor can the plaintiff recover for mere anxiety as to his personal safety or the personal safety of his child. Wy- man v. Leavitt, 71 Me. 227, (1880) ; West Chicago St. Ry. Co. v. Liebig, 79 111. App. 567, (1898); Mullin v. Boston Ry. Co., 185 Mass. 522, (1904). «' Purcell V. St. Paul City Ry. Co., 48 Minn. 134, 50 N. W. Rep. 1034, 16 L. R. A. 203, 52 Am. & Bng. R. Cas. 611, 11 Ry. & Corp. L. J. 114, 45 Alb. Law Jour. 212, (1892); O'Neil V. Dry Dock, East Broadway & Battery R. R. Co., 15 N. Y. Supp. 84, (1891); Buchanan v. West Jer- sey R. R. Co., 52 N. J. L. 265, 19 Atl. Rep. 254, (1890); Jones v. Brooklyn Heights Ry. Co., 23 App. Div. (N. Y.) 141, (1897); Spade v. Lynn Ry. Co., 168 Mass. 285, 47 N. B. Rep. 88, 38 L. R. A. 512, (1897); O'Flaherty v. Nassau Elec. Ry. Co., 34 App. Div. (N. Y.) 74, (1898); Mitchell V. Rochester Ry. Co., 151 N. Y. 107, (1896). See also Cleveland City Ry. Co. V. Ebert, 19 Ohio C. C. 725, (1899); Ohliger v. Toledo Trac. Co., 23 Ohio C. C. 265, (1901); Montreal St. Ry. Co. V. Walker, Q. R. 13 Q. B. 324, (1905); sec. 409, post, and cases there cited. Although the consequences of 662 THE LAW 01" STEEET EAlL-WATB. [§ 409. § 409. Elements and measure of damag^es in personal injury cases — A person who has been injured by the wrongful act of another may recover from the wrong-doer for the expenses in- curred for medical aid and attendance and for nursing, loss of time, personal pain and suffering, physical and mental, and for the consequences of a permanent injury where the evidence justifies such a finding.-'*'^ If an injury received by the plaintiff, through the negligence of the defendant, superinduced or con- tributed to the production or development of any physical ailment or disease, the defendant will be liable for any suffering, disability or expenses caused thereby.^*® In accordance with this well established rule, a recovery may be had for a permanent injury to the plaintiff in consequence of epileptic spasms caused by the wounds received,^™ or where an injury is the direct cause of a diseased condition which results in paralysis.^^-^ If the sickness fright directly Induced by the fault of another may be made the basis of an action at law, it was held to be too remcte where a pregnant woman was frightened by a horse of the defendant running toward her and strilcing against a tree near her, whereby she sustained a severe nervous shock from fright which brought on a long train of serious diseases. Lehman v. Brooklyn City R. R. Co., 47 Hun 355, (1888). ""Van De Venter v. Chicago City Ry. Co., 26 Fed. Rep. 32, 35, (1885) ; Cincinnati St. Ry. Co. v. Altemeler, 60 Ohio St. 10, (1899); Storrs v. Los Angeles Trac. Co., 134 Cal. 91, 66 Pac. Rep. 72, (1901); Louisville Ry. Co. V. Casey, 24 Ky. Law Rep. 1527, 71 S. W. Rep. 876, 29 Am. & Kng. R. Cas. (N. S.) 789, (1903). !«' Crank v. Forty-Second St., Man- hattanville & St. Nicholas Ave. Ry. Co., 53 Hun 425, (1889) ; Briggs v. Minn. St. Ry. Co., 52 Minn. 36, 53 N. W. Rep. 1019, 30 Amer. L. R. 305, (1892); Weber v. Third Ave. Ry. Co., 12 App. Div. (N. Y.) 512, (1896); Brooklyn Heights Ry. Co. V. MacLaury, 107 Fed. Rep. 644, 46 C. C. A. 523, (x901); Romans v. Bos- ton Ry. Co., 180 Mass. 456, 57 L. R. A. 291, 24 Am. & Eng. R. Cas. (N. S.) 647, (1902). "" But not where the medical tes- timony offered leaves it very doubt- ful whether the injury contributed to the spasms, Thwings v. Cen ral Park R. R. Co., 7 Robt. 616, (1868). "' Bishop V. St. Paul City Ry. Co., 48 Minn. 26, 50 N. W. Rep. 927, (1892). This Is an exceptional case in the character and result of the injuries complained of. The plaintiff, a pas- senger, was thrown from his feet In the car, receiving some contu- sions on the head which apparently were not serious. He was rendered unconscious but regained conscious- ness in a few minutes and went about his business as usual the same day and continued to do so thereafter for a considerable time. Subsequently he was troubled with headache, nervousness, sleepless- ness and some impairment of his mental faculties followed by paraly- sis, which, however, did not super- § 409.] THE LAW OF NEGLIGENCE. 663 resulted from a miscarriage caused by nervous shock and physi- cal injuries,^^^ or the development of a cancer from which the injured person was already suffering,^" the wrongful act of the defendant will be considered the proximate cause of the result. In such cases the wrong-doer cannot be allowed to apportion the measure of his responsibility to the initial cause; but whether direct casual connection exists is a question in all cases for the jury upon the evidence.-^''* The physical pain which constitutes an element in estimating damages for bodily injuries is not con- fined to that which may have been suffered before the trial, but includes such future suffering as it is reasonably certain from the evidence must result from the injury.-''" The injured person may vene until about seven months after the injury. See also Chicago Ry. Co. V. Krempel, 103 111. App. 1, (1902). 1" Pollock V. Brooklyn & Cross- town R. R. Co., 15 N. Y. Supp. 189, (1891); Wynn v. Central Park St. Ry. Co., 14 N. Y. Supp; 172, (1891) ; Augusta & Summerville R. R. Co. V. Randall, 79 Ga. 304, 310, (1887) ; Reading City Pass. Ry. Co. v. Eckert, 2 Cent. 791, (1886), holding that It Is not contributory negligence in a woman advanced in pregnancy, to ride on a street car, and that if in- jured by the negligence of the com- pany she Is entitled to recover dam- ages for a miscarriage, and long ill- ness and permanent injuries caused thereby. But in Augusta & Summer- ville R. R. Co. V. Randall, 85 Ga. 297, 299, 322, (1890), it was decided that a woman is not entitled to re- cover for sorrow as an element of damages for injuries resulting In a miscarriage. See also Tunnlcliffe v. Bay Cities Consol. Ry. Co., 102 Mich. 624, 61 N. W. Rep. 11, 31 L. R. A. 142, (1894). ■"Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 619, (1883). But In Pullman Palace Car Co. v. Barker, 4 Colo. 344, (1878), It was held that the carrier was liable only for such consequences as would ordinar.ly result to a well person. '"Baltimore City Pass. Ry. Co. V. Kemp, supra. Evidence that since the accident in which the Injuries were received the plaintiff was subject to fainting spel's, suf- fered pain and experienced diffi- culty In eating and walking, is ad- missible where there is evidence that such results naturally follow from the injury received by the plaintiff; Fltton v. Brooklyn City R. R. Co., 5 N. Y. Supp. 641, (1889). Although death was caused by peri- tonitis, which supervened several days after the injuries were re- ceived, the negligence complained of may, nevertheless, be the proxi- mate cause of the fatal injuries. Looram v. Third Ave. R. R. Co., 57 N. Y. Super. 165, (1889). So, con- tinued mental pain and suffering, the result of a nervous shock, may be considered in determining the damages; O'Nell v. Dry Dock, East Broadway & Battery R. R. Co., 15 N. Y. Supp. 84, (1891). See Kehoe V. Allentown Trac. Co., 187 Pa. St. 474, 41 Atl. Rep. 310. (1898). ™ Aaron v. Second Ave. R. R. Co., 2 Daly 137. (1889). But to entitle 664 THE LAW OP STEEET EAIL.WAYS. [§ 409, recover not only for physical pain, but also in some cases for men- tal angnisli connected with bodily injury ;^''^ but in such actions the jury cannot consider the plaintiff's pain of mind as distinguished from bodily suffering."^ But mere anxiety as to one's own per- sonal safety or the personal safety of his child is not a proper element of damages/'^* So in an action by or for the benefit of the next of kin the measure of damages is the pecuniary loss suffered by the parties entitled to the sum recovered, without any allow- ance for sorrow or distress of raind}''^ A husband may recover for loss of services and society of his wife and the sum necessarily expended for medical attendance and nursing. ■^^'' A minor suing for personal injuries may recover for pain of body and mind, loss of earnings after the, legal period of infancy, for physical dis- figurement or deformity, and for any other permanent physical effects produced by the injury. -^^^ Where death by negligence is by statute made a cause of action, in an action by the adminis- trator of an infant the amount of the recovery is to be determined by the probable earning capacity of the decedent during such a period as he would have lived determined by the standard life the plaintiff to recover damages for 10 Am. & Eng. R. Cas. (N. S.) 753, apprehended future consequences, (1897) ; Cincinnati Trac. Co. v. Mc- there must be such a degree of Kee, 27 Ohio C. C. 630, (1905). probability of their occurring as ™ Johnson v. Wells, Fargo & Co., amounts to a reasonable certainty 6 Nev. 224, (1870); Beath v. Rapid that they will result from the orig- Ry. Co., 119 Mich. 512, 78 N. W. Inal injury. Elsas v. Second Ave. Rep. 537, 15 Am. & Eng. R. Cas. R. R. Co., 56 Hun 161, (1890). See (N. S.) 793, (1899). also Bigelow v. Metropolitan St. Ry. ™ Wyman v. Leavitt, 71 Me. 227, Co., 48 Mo. App. 367, (1892); Hardy (1880). v. Milwaukee St. Ry. Co., 89 Wis. ""McKeever v. Market St. R. R. 183, 61 N. W. Rep. 771, (1895); Co., 59 Cal. 294, (1881); Chicago Gilbertson v. Forty-Second St. Ry. City Ry. Co. v. Gilliam, 27 111. App. Co., 14 App. Div. (N. Y.) 294, 386, (1888). (1897) ; Smedley v. Hestonville "» Osgood v. Lynn & Boston R. Pass. Ry. Co., 184 Pa. St. 620, 39 R. Co., 130 Mass. 492, (1891) ; Citi- Atl. Rep. 544, (1898); Webb. v. zens' St. Ry. Co. v. Twiname, 121 Union Ry. Co., 44 App. Div. (N. Y.) Ind. 375, (1889), holding that the 413, (1899). husband might recover for the loss "° Indianapolis & St. L. Ry. Co. v. of his wife's services as manager Stables, 62 111. 313, (1872) ; Canning of the business he was carrying on. V. Williamstown, 1 Cush. 451, (1848) ; See Butler v. Manhattan Ry. Co., Consolidated Trac. Co. v. Lambert- 143 N. Y. 417, (1894). son, 60 N. J. L. 457, 38 Atl. Rep. 684, »» Rosencranz v. Lindell Ry. Co., § 409.J THE LAW OF NEGLIGENCE. 665 tables; but in Michigan the recovery is limited tO' the prospective eamiags of the defendant until of full age, taken in connection with his prospective life, less the expense of his care and sup- port."'^^ Where a suit is brought by a minor, the gravamen of the action is injury to person. But the rule is different when the parent sues. In the latter case the loss of services forms the gist of the action. And in such an action the plaintiff is confined to the loss of services before suit brought, and for prospective loss of services where that fact is specially pleaded, together with reasonable compensation for expenses incurred and care bestowed during the illness of the child ;^^* but not for prospective expenses during the child's minority.-'®* As such an action can be main- tained only on the ground that the parent is entitled to the child's services, no damages can be awarded to the plaintiff becatise of his injured feelings as a parent.''^^ A passenger who has been un- lawfully, ejected, and thereby compelled to walk a long distance, to her injury, may recover for the direct results attributable to the necessity of traveling on foot, if she exercised due care.-'®^ 108 Mo. 9, 18 S. W. Rep. 890, (1891) ; Dunn V. North East Elec. Ry. Co., 81 Mo. App. 42, (1899). "= Hurst V. Detroit City Ry. Co., 84 Mich. 539, (1891), holding that such damages are special in their character, and must be specially pleaded and established by the evi- dence. "'Gilligan v. New York & Har- lem R. R. Co., 1 E. D. Smith 453, (1852) ; Jaclfson v. Consolidated Trac. Co., 59 N. J. L. 25, 35 Atl. Rep. 754, (1896) ; Woeckner v. Erie Elec. Co., 182 Pa. St. 182, 37 Atl. Rep. 936, (1897). ^*'Cumming v. Brooklyn City R. R. Co., 109 N. Y. 695, (1888) ; West Chicago St. Ry. Co. v. Dooley, 76 111. App. 424, (1898). "^ Covington St. Ry. Co. v. Packer, 9 Bush. (Ky.) 455, (1872); Cincin- nati St. Ry. Co. V. Altemeier, 60 Ohio St. 10, 53 N. E. Rep. 300, (1899). "" Spicer v. Lynn & Boston R. R. Co., 149 Mass. 207, 21 N. E. Rep. 363, (1889). For rulings upon the right to re- cover for loss of business and earn- ings, see Gumb v. Twenty-third St. Ry. Co., 114 N. Y. 411, (1889) ; Al- bert V. Bleecker St. R. R. Co., 2 Daly 389, (1888) ; Lombardi v. Cal- ifornia St. Ry. Co., 124 Cal. 311, 57 Pac. Rep. 66, (1899); Pryor v. Metropolitan St. Ry. Co., 85 Mo. App. 367, (1900). An injured person should use rea- sonable care to prevent an aggrava- tion of his injuries, and will not be allowed to recover compensation for such as could have been avoided by the exercise of such care and prudence. But to require an in- jured person to take proper and immediate steps to prevent future consequences is demanding of him a degree of care and an infallibility of judgment, which even physicians 666 THE lAW OP STEEET EAILWAYS. [§ 410. § 410. Exemplary and punitive damages — ^For the results of the mere failure to exercise ordinary care only compensatory dam- ages can be allowed.^*^ But private corporations, like natural persons, whether acting in the capacity of common carriers or dealing with persons to whom they are under no obligations arising from contract, may become liable for exemplary or puni- tive damages, for the consequences of the willful, malicious or criminal acts of their servants or agents, or conduct on their part raising the presumption of conscious indifference to consequences, if at the time they were acting within the general scope of their authority, or the act of the servant or agent was authorized or ratified. ^^^ As stated elsewhere, a private corporation is liable for such acts of its servants, whether expressly authorized or subse- quently ratified or not, if done while in the transaction of the master's business.^**® If a corporation may be held liable for the do not possess. Webb v. Metropoli- tan St. Ry. Co., 89 Mo. App. 604, (1901); Boggess v. Metropolitan St. Ry. Co., 118 Mo. 328, (1893); Citi- zens' St. Ry. Co. V. Wllloeby, 15 Ind. App. 312, (1895). •"Citizens' St. Ry. Co. v. Steen, 42 Ark. 321, (1883). "= Citizens' St. Ry. Co. v. Steen, 42 Ark. 321, (1883); Cleghorn v. New York & Hudson River R. R. Co., 56 N. Y. 44, 47, (1874) ; Varlllat V. New Orleans & Carrollton R. R. Co., 10 La. Ann. 88, (1855); Black V. Same, 10 La. Ann. 33, (1855). But see Rouse v. Metropolitan St. Ry. Co., 41 Mo. App. 298, (1890). See also Haman v. Omaha Horse Ry. Co., 35 Neb. 74, 52 N. W. Rep. 830, (1892) ; Citizens' St. Ry. Co. v. Wll- loeby, 134 Ind. 563, 33 N. B. Rep. 627, 58 Am. & Eng. R. Cas. 485, (1893); Cicero St. Ry. Co. v. Brown, 89 111. App. 318, (1899); Nashville St. Ry. Co. v. O'Bryan, 104 Tenn. 28, 55 S. W. Rep. 300, 22 Am. & Eng. R. Cas. (N. S.) 902, (1899) ; Wigton v. Metropolitan St. Ry. Co.. 38 App. Div. (N. Y.) 207, (1899); Lexington Ry. Co. v. Co- zine. 111 Ky. 799, 64 S. W. Rep. 848, 23 Am. & Eng. R. Cas. (N. 8.) 624, (1901) ; Birmingham Ry. Co. v. Nolan, 134 Ala. 329, 32 So. Rep. 715, (1902); Indianapolis St. Ry. Co. v. Taylor, 158 Ind. 274, 63 N. E. Rep. 456, 25 Am. & Eng. R. Cas. (N. S ) 588, (1902); South Covington Ry. Co. V. Cleveland, 30 Ky. Law Rep. 1072. 100 S. W. Rep. 283, (1907); Mahoning Valley Ry. Co. v. De Pas- cale, 70 Ohio St. 179, 65 L. R. A. 860, (1904), holding that words of provocation may be considered in mitigation of punitive damages. "' Ante, sec. 372. See also Fell v. Northern Pacific R. R. Co., 44 Fed. Rep. 248, (1890); Grlsim v. Mil- waukee City Ry. Co., 84 Wis. 19, 54 N. W. Rep. 104, (1893); Robin- son V. Superior R. Trans. Co., 94 Wis. 345, 68 N. W. Rep. 961, 34 L. R. A. 205, (1896); Fohnnan v. Consolidated Trac. Co., 63 N. J. L. 391, 43 Atl. Rep. 892, (1899), decid- ing that the principal must have expressly, or impliedly by his con- duct, authorized or approved of his 5 410.3 THE LAW OP KEGLIGENCfc. 66? wanton, reckless, ■willful or criminal acts of its servants, it fol- lows that the damages which may be allowed cannot be limited to a recovery of compensation for the mere pecuniary loss. Therefore, exemplary damages have been awarded in some cases for the maltreatment of passengers by the servants of the car- rier,^^" for the maintenance and use, with the knowledge of their condition, of defective and dangerous tracks, cars and ap- pliances,-^®^ or for negligence in employing incompetent servants or retaining them in service after their incompetency has been discovered.^®^ But exemplary damages cannot be allowed in a case where there has been no intentional offense committed and where the defendant's agents have only done what they honestly believed to be their duty, as where a conductor or other agent of the carrier ejects a passenger for non-payment of fare, acting on the honest belief at the time that the fare had not been paid, and using no more force than was reasonably necessary."^ When agent's act, either before or after it was committed. See also Vas- sau V. Madison Elec. Ry. Co., 106 Wis. 301, (1900), holding that the act must have been ratified either In advance or afterward. ""Head v. Georgia Pacific Ry. Co., 79 Ga. 358, 7 S. E. Rep. 217, (1887); Hamilton v. Third Ave. R. R. Co., 13 Abb. Pr. (N. S.) 318, 319, 35 N. Y. Super. 118, (1872); San- ford V. Eighth Ave. R. R. Co., 23 N. Y. 343, (1861); Schmitt v. Milwau- kee St. Ry. Co., 89 Wis. 195, 61 N. W. Rep. 834, (1895). ^"Alabama Great Southern Ry. Co. V. Hill, 90 Ala. 71, 9 So. Rep. 722, (1890); International & G. N. R. R. Co. V. Brazzil, 78 Tex. 314, 14 S. W. Rep. 609, (1890). But the mere fact that there was a defect in the track, of which the officers of the defendant had actual or constructive notice, will not war- rant an allowance of exemplary damages, unless from their knowl- edge of the defect they might rea- sonably anticipate such conse- quences. Richmond & Danville R. R. Co. V. "Vance, 93 Ala. 144, 9 So. Rep. 574, (1890). '« Cleghorn v. New York & Hud- son River R. R. Co., 56 N. Y. 44, 47, (1874) ; Morrow v. St. Paul CI:y Ry. Co., 71 Minn. 326, 73 N. W. Rep. 973, (1898); Irwin v. Brooklyn Heights Ry. Co., 59 App. Div. (N. Y.) 95, (1901). '■« Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25, (1873); Fitzgerald V. Chicago, Rock Island & Pacfic Ry. Co., 50 la. 79, (1878); Phila- delphia, W. & B. R. R. Co. v. Hoef- lick, 62 Md. 300, (1884); Logan v. Hannibal & St. Joseph R. R. Co., 77 Mo. 663, (1883) ; Yeates v. New York Central & Hudson River R. R, Co., 67 N. Y. 100, (1876); Tomlin- son v. Wilmington & Sea Coast R. R. Co., 107 N. C. 327, 12 S. B. Rep. 138, (1890); Pine v. St. Paul City Ry. Co., 50 Minn. 144, 52 N. W. Rep. 392, (1892). Where the ejectment of a passen- ger is not justified but is "not done 668 THE LAW OB- STEEET EAtLWAYiS. [§ 410. only one of two or more joint wrong-doers acted in sucli a way as to render himself liable to exemplary damages, the plaintiff may have judgment against him for exemplary damages and against the other for compensatory damages.^®* with malice or in an insulting man- ner," the jury can award compensa- tory damages only, and cannot al- low anything to the plaintiff for the services of his counsel. United Power Co. v. Matheny, 81 Ohio St 204, (1909). But in City & Suburban Ry. Co. V. Brauss, 70 Ga. 368, (1883), it was held that where the payment of a single fare entitles a passenger to a transfer from one line to another operated by the same company, and the rules of the company require a transferred passenger to produce a transfer check on the second car, it is the duty of the conductor of the first car to furnish the trans- fer ticket without demand or re- quest, if notified by the passenger of his wish to make the transfer; and that, if the passenger, being ig- norant of the rule, takes passage on the second car and is ejected for his failure to produce a transfer ticket, the company will be liable to him for injuries so sustained, including exemplary or punitive damages. Although the liability of a cor- poration to exemplary damages for injuries occasioned by the wanton or unlawful acts of its servants is clearly established, yet, where there is no evidence which would justify a finding that the wrongful act of the servant was the result of feel- ings of violence, outrage or reck- less indifference, the question of exemplary damages should not be submitted. Philadelphia Trac. Co. V. Orbann, 119 Pa. St. 37, (1888). The opinion, by Clark, J., contains an able review of the decisions on this point. "* Clark V. Newsam, 1 Exch. 131, (1849) ; Clissold v. Machell, 26 Up. Can. Q. B. 422, (1SG7). Contra, Mc- Carthy V. De Armlt, 99 Pa. St. 63, (1881), holding, however, that where all the defendants are liable for exemplary damages, but in dif- ferent amounts, the jury should be instructed, as regards such exem- plary damages, to assess them ac- cording to the acts of the most in- nocent of the defendants. CHAPTEE XIV. THE COMPANY AND ITS SERVANTS. j 411. Who are servants. 412. Who are fellow-servants. 413. Master's liability for defec- tive appliances — safe place to work. 414. Injury caused by vicious horse. 415. Assumption of risk — notice of danger to servant. 416. The violation of the Sunday law by the servant as a defense to the master. § 417. Slander or libel of servant by master. 418. Criminal liability for cruelty to animals. 419. Action against corporation for wages. 420. Extra pay for extra hours. 421. Wages deposited by servant to secure the faithful dis- charge of his duties. §411. Who are servants — The relation of master and servant exists when the latter is subject to the former's orders and control as to what work shall be done and how it shall be done.^ A master is not liable for the negligent act of his sei-vant, if at the time of the doing of such act the servant is not then engaged in the service or duties of his employment, although the act be one which, if done by such servant while on duty and at a time when actually engaged in the master's service, would be clearly within the course and scope of the usual and ordinary duties of such servant.^ The relation of master and servant does not exist between an employer and the servants of an independent contractor. If, however, the employer assumes control over the ' Singer Mfg. Co. v. Rahn, 132 U. • S. 518, 442, 10 Sup. Ct. 175, 33 L. Ed. 440, (1889). See also Toledo Ry. Co. V. Pflsterer, 5 Ohio C. C. (N. S.) 359, (1904). 'In Lima Ry. Co. v. Little, 67 Ohio St. 91, (1902), the court said: "The test of a master's liability is not whether a given act was done during the existence of the ser- vant's employment, but whether such act was done by the servant while engaged in the service of, and while acting for, the master in the prosecution of the master's business * * * Whether the person, whose immediate negli- gence or misconduct caused the particular injury complained of, was, at the time, the servant of, and was then acting for, the de- fendant, is a question of fact to be submitted to the jury under proper Instructions from the court." 669 670 THE LA.W OF STEEET EAILWAY8. [§ 412. servant of an independent contractor and the work performed by him, the relation of master and servant exists between them.* § 412. Who are fellow-servants — The general rule is that those entering into the service of a common master, working under the same control, and engaged in the same general business are fellow-servants, and prima facie the common master is not liable for the negligence of one of his servants which has re- sulted in an injury to a fellow-servant.* It has been held that the grip-man of a cable-car and a watchman whose duty it is to give signals at a curve to prevent more than one train from passing at a time are fellow-servants, and hence that there is no liabilty on the part of the company for an injury to the watchman caused by the negligence of the grip-man in operating the car." A pas- • Hooe V. Boston & Northern St. Ry. Co., 187 Mass. 67, (1904). Servants of an Independent contractor are not employees of the company; Art- lip v. Philada. Trac. Co., 198 Pa. St. 586, 48 Atl. Rep. 497, (1901); but where the workmen of the con- tractor are subject to the orders, rules and supervision of the super- intendent of the company, and are operating construction cars on same Dlock as passenger cars, the com- pany is liable for Injuries sustained because of the negligence of the workmen of the contractor. But see Hoover v. Carbon Co. Elec. Ry. Co., 191 Pa. St. 146, 43 Atl. Rep. 74, (1899); Shugard v. Union Trac. Co., 201 Pa. St. 562, (1902). 'Northern Pacific R. Co. v. Peter- son, 162 U. S. 346, 353, 16 Sup. Ct. 483, 40 L. Ed. 994, (1895). In Chicago St. Ry. Co. v. Leach, 104 111. App. 30, (1902), the court said: "To create the relation of fellow-servants it Is essential that at the time of the injury they shall be directly co-operative in the par- ticular business in hand or that their usual duties shall bring them into habitual consociation so that they shall exercise an influence . upon each other promotive of proper caution. The definition of fel- low-servant Is a question of law in regard to which the jury must be instructed, but it Is always a question of fact to be determined by the jury from the evidence." ^ Murray v. St. Louis Cable & Western Ry. Co., 98 Mo. 572, (1889). In Seaman v. Koehler, 122 N. Y. 646, (1890), the reviewing court refused to take judicial notice of the rela- tions between a conductor and a driver on a street car for the pur- pose of reversing the judgment. An employe charged with the duty of working machinery with an- other employe is not a co-employe in such a sense as to relieve the em- ployer from responsibility for an in- jury to one of them which happens through the defect of machinery, although that defect may have been brought about by the negligence of the other employe. McDade v. Washington & Georgetown R. R. Co., 5 Mackey 144, (1886). See also Denver Tram. Co. v. Crumbaugh, 23 Colo. 363, 48 Pac. Rep. 503, (1897). holding that a re- 8 412.] THE COMPANY AND ITS 8BEVANT8. 671 senger, however, upon a street car, who assists in pushing it upon a side-track at the request of the driver of the car, does not thereby engage in the service of the company as a volunteer nor pairman Is not a fellow-servant of a conductor. But see Lundquist v. Duluth St Ry. Co., 65 Minn. 387, 4 Am. & Eng. R. Cas. (N. S.) 506, (1896), deciding that a repairman of tracks and motor-man are fellow- servants; Quinn v. Brooklyn Heights Ry. Co., 91 App. Div. (N. Y.) 489, (1904), holding that the starter and the car repairman are not fellow- servants; Highland Ave. & Belt R. Co. V. Dusenberry, 98 Ala. 239, 13 So. Rep. 308, (1892); Highland Ave. & Belt Ry. Co. v. Miller, 120 Ala. 535, 24 So. Rep. 955, (1898) ; Elec. Ry. Co. V. Lawson, 101 Tenn. 406, 47 S. W. Rep. 489, (1898); Austin R. T. Co. v. Grothe, 88 Tex. 262, 31 S. W. Rep. 196, (1895); Rittenhouse v. Wilmington St. Ry. Co., 120 N. C. 544, 26 S. E. Rep. 922, (1897), holding that a mo- tor-man and a track foreman are fel- low-servants; Norman v. Middlesex Trac. Co., 68 N. J. L. 728, (1903); North Chicago St. Ry. Co. v. Con- way, 76 111. App. 621, (1898); Metro- politan West Side El. R. Co. v. Skola, 183 111. 454, 56 N. E. Rep. 171, (1900); Thompson v. Citizens St. Ry. Co., 152 Ind. 461, 53 N. B. Rep. 462, (1898) ; Indianapolis R. T. Co. V. Porman, 162 Ind. 85, (1904), in which it was held that a com- pany is not liable to an employe in- jured on his way from work by an- other employe in charge of the car; McLeod V. Chicago Trac. Co., 125 la. 270, (1904); Dickinson v. West End St. Ry. Co., 177 Mass. 365, 59 N. E. Rep. 60. 52 L. R. A. 326, (1901), holding that a conductor in uniform but off duty and a free passengr on his way home is not a fellow- servant of the motor-man; Pender- gast v. Union Ry. Co., 10 App. Div. (N. Y.) 207, (1896), deciding that an employe of the company riding free on his way home, and the con- ductor are not fellow-servants; Clark V. Manhattan Ry. Co., 77 App. Div. (N. Y.) 284, (1902); Byrnes v. Brooklyn Heights Ry. Co., 36 App. Div. (N. Y.) 355, (1899); McHugh V. Manhattan Ry. Co., 88 App. Div. (N. Y.) 554, (1903). A bos.s of a crew loading rails on a flat car, en- gaged in the same work as the crew, although having direction of it, is not a vice-principal of the mas- ter, but a fellow-servant of the mem- bers of the crew. Whitfield v. Louisville & N. R. Co., 66 S. E. Rep. 973, (Ga. 1910). A conductor on a cable-car on a street and a motor- man on an electric car operated by the same company on a street crossing the first at right angles, are not fellow-servants, where the employes on the two lines are un- der control of different superinten- dents in charge of different C"r barns. Bennett v. Chicago City Ry. Co., 243 111. 420, 90 N. E. Rep. 735, (1910). In Shugard v. Union Trac. Co., 201 Pa. St. 562, 51 All. Rep. 325, 8 Am. Electl. Cas. 687, (1902), the court held a conductor and a car inspector to be fellow-servants; and the same relation was held to exist between motor-men employed by the same company, Baltimore Trust Co. V. Atlantic Trac. Co., 69 Fed. Rep. 358, (1895), and between conductors and motor-men, Gier v. Los Angeles Consol. Elec. Ry. Co., 108 Cal. 129, (1895). See Brittain v. West End St. Ry. Co., 168 Mass. 10, 46 N. E. Rep. Ill, (1897), for construction of Massachusetts' employers' liability 672 THE LAW OF STREET EAILWATS. [§ 413. is he a fellow-servant of the driver, and the doctrine of respondeat superior applies, making the company liable if injury occurs to him while so engaged.® The company is liable for injuries to its employes caused by the negligence of a vice-principal.'' A servant of a company injured by the negligence of a fellow-servant may prove that such fellow-servant was incompetent, and that such incompetency was actually known to the company, or that the culpable servant's reputation for incompetency was so generally and notoriously bad that it ought to have been knoiwn by the company.^ § 413. Master's liability for defective appliances — safe place to work — The rule requiring the master to furnish suitable appli- ances and to keep them in proper repair and condition, and im- posing a liability upon him for lack of ordinary care in that re- spect, is so well settled that authorities need not be here cited in its support. But the servant assumes not only those risks which are ordinarily incident to his employment but also such as arise from open and visible defects or imperfections in the machinery or appliances about which he is employed. Therefore a street car driver, who continues in the service after becoming aware of a defect in a platform on which he stands, cannot recover for an injury sustained by a fall caused by the defect, but will be held to have assumed the increased risk.® But where the foot- act. But in Kentucky it is held that Calumet St. Ry. Co. v. Peters, 88 111. motor-men are not fellow-servants, App. 112, (1899). Louisville Ry. Co. v. Haynes, 128 S. ' Rogers v. Galveston City R. R. W. Rep. 1055, (Ky. 1910). Co., 76 Tex. 502, 13 S. W. Rep. 540, "Mclntire St. Ry. Co. v. Bolton, (1890), in which the court said: 43 Ohio St. 224, (1885). See also "The floor was obviously unsafe, and Stastney v. Second Ave. R. R. Co., the probabilities of stumbling over 18 N. Y. Supp. 800, (1892). it or slipping upon it were as open ' Austin R. T. Co. v. Grothe, 88 Tex. to the plaintiff as to the defendant. 262, 31 S. W. Rep. 196, (1895) ; The simplest natural laws were in- Elec. Ry. Co. v. Lawson, 101 Tenn. volved in any conjecture that 406, 47 S. "W. Rep. 489, (1898); IVIet- might be made as to risk of its ropolitan West Side El. R. Co. v. .use, and the plaintiff would be Skola, 183 111. ''54. 56 N. E. Rop. 171, presumed to understand these as (1900). well as the company, and he must ' Gier v. Los Angeles Ry. Co., 108 be held to have assumed all the Cal. 129, 41 Pac. Rep. 22, (1895); risk incident thereto. The following §413.] THE COMPANY AND ITS SEEVANTS. 673 board of an engine on which plaintiffs intestate rode while in the performance of his duties became defective and the servant gave due notice thereof to the company, it was held that it was not necessarily contributory negligence to continue in that employ- ment and to use the engine, unless the peril became so imminent that a man of reasonable prudence would not have continued in the service.^" So if a conductor is injured by the sudden yield- ing or slipping of a brake, caus-ed by a hidden defect of which the company had knowledge but he had not, the master will be held liable. To authorize a recovery it is essential that the servant did not know and could not have known of the defect- by the exercise of ordinary care.^"^ If an employe without fault authorities cited by the appellee are in point, and abundantly sus- tain the view we have taken of the facts of the case," citing Jenney Electric Co. v. Murphy, 115 Ind. 566, 18 N. E. Rep. 30, (1888); O'Keefe v. Thorn, 24 W. N. C. (Pa.) 379, 16 Atl. Rep. 737, (1889); Moul- ton V. Gage, 138 Mass. 390, (1885); Miller v. Chickering, 101 N. Y. 396, N. E. Rep. 56, (1886); "Walsh v. St. Paul & Duluth R. R. Co., 27 Minn. 367, 2 Am. & Eng. R. Cas. 144, (1880); Galveston, H. & S. A. Ry. Co. v. Lempe, 59 Texas 19, (1883). See also Kenney v. Sec- ond Ave. Ry. Co.. 89 Hun 340, (1892); Burnell v. West Side Ry. Co., 87 Wis. 387, 58 N. W. Rep. 772, (1894) ; Chandler v. Coast Elec. Ry. Co., 61 N. J. L,. 380, (1898); Mc- Cauley v. Springfield St. Ry. Co., 169 Mass. 301, (1897); Nealand v. Lynn Ry. Co., 173 Mass. 42, (1899) ; Roberts v. Indianapolis St. Ry. Co., 158 Ind. 634, (1902); Hayzel v. Columbia Ry. Co., 19 App. Cas. (D. C.) 359, (1902); Murdock v. Oak- land Ry. Co., 128 Cal. 22, 60 Pac. Rep. 469, (1900) ; Robare v. Seattle Trac. Co., 24 Wash. 577, 64 Pac. Rep. 784, (1901); McGlU v. Cleve- land Trac. Co., 79 Ohio St. 203, (1908) : Cleveland Ry. Co. v. Somers, 24 Ohio C. C. 67, (1902); Rich v. Asheville Elec. Co., 152 N. C. 689, 68 S. E. Rep. 222, (1910), in which the accident was attributed to a de- fective curtain. " Highland Ave. & Belt R. R. Co. V. Walters, 91 Ala. 435, (1890). "Newhart v. St. Paul City Ry. Co., 51 Minn. 42, 52 N. W. Rep. 283, (1892). It was necessary for the conductor, in order to set the brake, to use his whole strength, and even with that effort it would not prop- erly control the motion of the car. While attempting to apply the brake the handle struck the plaint- iff in the breast, severely injuring him. The court held that the plaint- iff's knowledge that the brake would not work properly did not conclusively charge him with notice that injury might be expected from the act of using it. See also Toledo Con. Street Ry. Co. v. Sweeney, 8 Ohio C. C. 298, (1894); Delude v. St. Paul City Ry. Co., 55 Minn. 63, 56 N. W. Rep. 461, (1893); Beardsley v. Minneapolis St. Ry. Co., 54 Minn. 504, 56 N. W. Rep. 176, (1893); Pierce v. Cam- den Ry. Co., 58 N. J. L. 400, 35 Atl. Rep. 286, (1895); West Chi- 674 THE LAW OF STEEET EAILWAY8. [§§ 414, 415. on his part is injured by the continued use of a car known by the company to be defective, the master is not relieved from lia- bility by the negligence of the person in charge of the engine in moving it faster than is usual in such cases.^* It is the duty of the company to provide its servants with a safe place to work.^^ § 414. Injury caused by vicious horse — ^Where a hostler em- ployed by a street railway company is injured by a vicious horse, while engaged in grooming it as it is his duty to do, his right to recover damages from the master will depend upon whether he had knowledge of the risk before he received the injury. If he knew the vicious propensities of the animal and had been kicked by him before, he cannot recover, especially where he had not requested that the horse be taken from under his care. Ilis right of action is barred by the rule that a servant is deemed to have assumed all risks naturally and necessarily incident to his employment as well as all dangers of which he had acquired pre- vious personal knowledge.^* § 415. Assumption of risk — notice of danger to servant The general rule as to the assumption by the servant of all the ordinary risks of his employment applies, although he was engaged in some cage St. Ry. Co. v. Dyer, 162 111. Co., 14 N. Y. Supp. 639, (1891). 482, 44 N. B. Rep. 815, (1896) ; Bland Whether sand hexes are reasonably V. Shreveport Belt Ry. Co., 48 La. requisite for safety Is a question Ann. 1057, 36 L. R. A. 114, 20 So. of fact for the jury. Van Dyke v. Rep. 284, (1896) ; Lincoln St. Ry. Atlantic Ave. Ry. Co., 67 Fed. Rep. Co. V. Cox, 48 Neb. 807, 67 N. W. 296, (1895). Rep. 740, (1896); Highland Ave. '= Marks v. Rochester Ry. Co., & Belt Ry. Co. v. Miller, 120 Ala. 77 Hun 77, (1894); Stucke v. New 535, (1898); Pikesvllle Ry. Co. v. Orleans Ry. Co., 50 La. Ann. 172, Maryland, 88 Md. 563, (1898); 23 So. Rep. 342, (1898); Citizens' Kingan v. Pittsburgh Trac. Co., 5 Pa. St. Ry. Co. v. Reed, 28 Ind. App. 629, Super. Ct. 436, (1897); Stapleton (1901); Raker v. Toledo & Indiana V. Citizens' Trac. Co., 5 Pa. Super. Railway Co., 10 Ohio C. C. (N. S.) Ct. 253, (1897); Mullen v. Metro- 297, (1907). politan St. Ry. Co., 89 App. Div. "Green & Coates Pass. St. Ry. (N. Y.) 21, (1903); Qulnn v. Co. v. Bresmer, 97 Pa. St. 103, Brooklyn Heights Ry. Co., 91 App. (1881). See also Leigh v. Omaha St. Div. (N. Y.) 489, (1904); Toledo St. Ry. Co., 36 Neb. 131, 54 N. W. Rep. Ry. Co. V. Mammet, 13 Ohio C. C. 134, (1893) ; Devlin v. Metropolitan 591, (1896). St. Ry. Co., 17 App. Div. (N. Y.) " Donahue V. Brooklyn City. R. R. 491, (1897). 8 415.J THE COMPANY AND ITS SBEVANTS. 676 unusual service and in an unusual place, if he had the same op- portunities as his master to discover the dangers involved. Where an employe was directed to remove snow from a roof, and, in returning to the ground, in order to avoid a snow drift at the bottom of the ladder upon which he was descending, jumped upon a sky-light in the roof, which was so covered with snow that it could not be seen, it was held that he could not maintain an action for the injuries received, because there was no duty incumbent upon his employer to notify him of the existence of the danger, as the place where he fell had been suddenly covered by a heavy fall of snow.^' A servant does not assume the risks which are not kno^vn to him but which are or should have been known to the company except where the situation is open and obvious and the servant in the exercise of due care may be as well in- formed as the company.-^*' " Kelnlg V. Broadway R. R. Co., 49 Hun 269, (1888); Interurban Ry. & Term. Co. Ry. Co. v. Treuheit, 29 Ohio C. C. 407, (1906). See Martin v. Cincinnati Trac. Co., 10 Ohio C. C. (N. S.) 528, (1908). "Mullen V. Metropolitan St. Ry. Co., 89 App. Dlv. (N. y.) 21, (1903). See also Jennings v. Tacoma Ry. & Motor Co., 7 Wash. 275, 34 Pac. Rep. 937, (1893) ; Puget Sound Elec. Ry. Co. v. Harrigan, 176 Fed. Rep. 488. (1910); Broderick v. St. Paul City Ry. Co., 74 Minn. 163, 77 N. W. Rep. 28, (1898) ; Brown V. Chattanooga Elec. Ry. Co., 101 Tenn. 252, 47 S. W. Rep. 415, (1898); King y. Inter-State Consol. Ry. Co., 23 R. I. 583, (1902) ; Millard v. West End St. Ry. Co., 173 Mass. 512, 53 N. E. Rep. 900, (1899); Ladd v. Brockton St. Ry. Co., 180 Mass. 454, (1902) ; Meehan v. Holyoke St. Ry. Co., 186 Mass. 511, (1904) ; Fletcher V. Philada. Trac. Co., 190 Pa. St. 117, (1899) ; Kennedy v. Manhattan Ry. Co., 145 N. Y. -288, (1895); Sullivan v. Metropolitan St. Ry. Co., B3 App. Div. (N. Y.) 89. (1900); True V. Niagara Gorge Sy. Co., 70 App. Div. (N. Y.) 383, (1902); Drake v. Auturn City Ry. Co., 173 N. Y. 466, (1903); Lynch v. Metro- politan Ry. Co., 89 App. Div. (N. Y.) 217, (1903); Karrigan v. Market St. Ry. Co., 138 Cal. 506, (1903); Citizens' St. Ry. Co. v. Reed, 28 Ind. App. 629, 63 N. B. Rep. 770, (1902); Branz v. Omaha Ry. Co., 120 la. 406, (1903): Magill v. Cleveland Trac. Co., 79 OWo St 203, (1908); Gamble v. Akron Ry. Co., 63 Ohio St. 352, (1900); Union Trac. Co. v. Buckland, 34 Ind. App. 420, (1904). See sec. 413, ante, note 9. In the case of Harrison v. Detroit, Y. A. A. & J. Ry. Co., 157 Mich. 78, 100 N. W. Rep. 451, 9 Am. Elect!. Cas. 152, (1904), where a motorman was killed while removing a trolley pole on the top of a car from Ita socket, by reason of its coming in contact with, or being close to, a high-tension wire strung along the thirty-five foot poles on which the trolley wire also was strung, it was held that he assumed the risk, after becoming acquainted with the rela- tive localities and distances of trol- 676 THE LAW OF STEEET BAILWAYS. [§§ 416, 41Y. § 416. The violation of the Sunday law by the servant as a defense to the master — In Massachusetts, before the amendment of her statute which made it a misdemeanor to travel or to labor on the first day of the week,^^ it was held that a conductor of a street car could not recover for an injury sustained while perform- ing the ordinary duties of his employment on Sunday. The court decided that if, while standing on the side step of an open car, he was injured by being struck by a car of another corporation passing on a parallel track, he was both laboring and traveling in violation of the general statutes of the state, and that his illegal acts necessarily contributed to cause his injury.^* §417. Slander or libel of servant by master Private cor- ley pole and wires, and their danger- ous possibilities, even though not warned of the specific danger, the court adding, in the opinion: "In the present case we think the danger was ohvious and it was assumed, and upon this ground a verdict should have been directed for the defendant." For further adjudica- tions involving the duties of em- ployers and the risks assumed by employes, see Essex County Elec. Co. V. Kelly, 57 N. J. L. 100, 29 AU. Rep. 427, 5 Am.. Electl. Cas. 360, (1894); Flood v. Western Union Tel. Co., 131 N. Y. 603, 30 N. B. Rep. 196, 4 Am. Electl. Cas. 402, (1892); Mc- Adam v. Central Ry. Elec. Co., 67 Conn. 445, 35 Atl. Rep. 341, 6 Am. Electl. Cas. 348, (1896), where a line- man was Injured by a shock com- municated to him from a trolley wire by an uninsulated span wire; Junior v. Missouri Elec. L. & P. Co., 127 Mo. 79, 29 S. W. Rep. 988, 5 Am. Electl. Cas. 369, (1895), holding that a lineman assumed the risk of dis- carding rubber gloves furnished by his employer; and Harroun v. Brush Elec. Light Co., 12 App. Dlv. (N. Y.) 126, 42 N. Y. Supp. 716, 6 Am. Electl. Cas. 357. (1896), in which It was held that the failure to wear rubber gloves was not evidence of contribu- tory negligence. Contra, as to the failure to use rubber gloves: Wag- ner V. City of Portland, 40 Ore. 389, 67 Pac. Rep. 300, 8 Am. Electl. Cas. 671, (1902), in which it was held that the employe assumes the risk; Jun- ior V. Missouri Elec. L. & P. Co., 127 Mo. 79, 29 S. W. Rep. 988, 5 Am. Electl. Cas. 369, (1895); but in Har- roun V. Brush Elec. L. Co., 12 App. Div. (N. Y.) 126, 42 N. Y. Supp. 716, 6 Am. Electl. Cas. 357, (1896), and Commonwealth Elec. Co. v. Rose, 214 111. 545, 73 N. E. Rep. 780, 9 Am. Electl. Cas. 381, (1905), it was held to be a question for the jury. An employe assumes the ordinary risks of the business which he knows, or, as an ordinarily careful and Intelligent man, ought to antici- pate, and the likelihood of human infirmity In his fellow workmen is one of the risks which he assumes. Massy v. Milwaukee Elec. Ry. & L. Co., 126 N. W. Rep. 544, (Wise. 1910). "Ante, sec. 366. " Day V. Highland St. Ry. Co., 136 Mass. 113, (1883). But see sec. 74, ante, note. § 418.] THE COMPANY AND ITS SERVANTS. 677 porations may be held liable, not only for malicious prosecution and false arrest,^* but also for libel and slander. In a Pennsyl- vania case in wliicli it appears that a conductor had been dis- charged for failing to ring up fares, the company in whose employ he had been, having learned that other conductors allowed him to continue to ride on the cars of the company on employes' tickets, posted a notice in one of its waiting rooms, in which it stated that he had "been discharged for failing to ring up all fares collected. Discharged employes are not allowed to ride upon employes' tickets." This was made the ground of an action against the cor- poration by its former employe, who complained that the notice charged him with embezzlement and was therefore libellous. The court held, however, that the words were not necessarily libellous nor were they even so equivocal or ambiguous as tO' justify the introduction of evidence to show their meaning. In the opinion of the court, the words did not charge either embezzlement or fraud.^" In a Louisiana case in which a discharged car-driver brought suit to recover wages, the defendant company answered averring that it had discharged the plaintifE for a violation of his contract and that it was not indebted to him because he had appro- priated fares to his own use during his term of service. The court held that the plaintiff could not maintain an action for damages on the ground that he had been maliciously and unjustly libelled in the answer, because he had put himself in a position of having the charge made against him, and that the corporation had a right to plead a defense to his action which was founded on hisi own act.^^ § 418. Criminal liability for cruelty to animals The servants of a sti'eet railway company whose cars are propelled by animal power are not exempt from prosecution for cruelty to animals, "Ante, sec. 373. possible Inference of fraud and em- ™ Said the court: "The plaintiff's bezzlement, which the words them- default in not ringing up the fares, selves in their usual signification as we have said, might have re- did not justify, it is certainly not suited from his negligence or ineflB- the defendant's fault." Pittsburgh, ciency, or from mere mistake or Allegheny & Manchester Ry. Co. accident, or from his intentional v. MoCurdy, 114 Pa. St. 554, 558, fraud, and if people will draw from (1886). the general statement of his dis- ^Hewett v. New Orleans & Car- charge on that ground, a merely rollton R. R. Co., 28 La. Ann. 685, 678 THE LAW or STEEBT EA1LWAT8. [§§ 419, 420. in overdriving the horses and overloading the cars in violation of the statute, because at the time of the commission of the offense they were in the employ of the corporation and acting under its orders. In such a case the conductor of the overloaded car is equally responsible, with the driver for the violation of the statute, and indeed more so, especially where the driver is sub- ject to the conductor's orders. But where the law does not limit the number of passengers to be carried, whether a car was or was not overloaded is a question of fact for the jury.'''' § 419, Action against corporation for wages. — In several cases decided by the Court of Appeals of Missouri, in which employes had left with the secretary of their employer part of their wages as deposits, believing that they were depositing the same with the corporation, it has been held that they could recover the sums so deposited from the corporation itself. Their right to recover seems to have depended upon their illiteracy and their honest belief that they were dealing with the corporation, which was induced, in some of the cases at least, by the action of the secre- tary in making a memorandum of the deposit in writing at the time on the books of the corporation.** But in a similar case in California it was held that the dealings of the plaintiff were not only in form but in fact Avith the secretary, against whom alone the plaintiff could maintain an action for installments of salary left with him.** § 420. Extra pay for extra hours — There seems to have been but one adjudication by a court of final jurisdiction in which the right of a street railway employe to recover extra compensa- tion for hours in excess of the statutory limit was directly passed upon, but even in that case the right of the state to enact such a (1876). See also Comerford v. West (1884). But In one case In which End St. Ry. Co., 164 Mass. 13, 41 it appeared that the conductor N. E. Rep. 59, (1895). signed receipts on the books of the '^ People v. Tinsdale, 10 Abb. Pr. company for the full amount of his 374, (1868). wages for each month, It was held ""Leary v. People's Ry. Co., 16 - that this did not prevent a recov- Mo. App. 561, (1885) ; Meagher v. ery. Carroll v. People's Ry. Co., 14 People's & Tower Grove Ry. Co., Mo. App. 490, (1883). 14 Mo. App. 499, (1883) ; Murphy v. « Gardner v. Omnibus R. R. Co., People's Ry. Co., 15 Mo. App. 594, 63 Cal. 326, (1883). § 421.] THE COMPANY AND ITS SEEVANTS. 679 statute and the power of the court to enforce it were not directly decided. The plaintiff was a night-watchman and sued the com- pany for the time served by him in excess of ten hours per day under a statute which made ten hours a day's work in factories. It was held that he had made his contract of service with refer- ence to the invariable rules and custom of the company, which required a greater number of hours per day than were prescribed by the statute of which he sought to avail himself, and therefore, that his contract was without reference to the number of hours constituting a day's work.^® In a well considered and important case, the Court of Appeals of New Tork decided that the viola- tion of a statute prohibiting under a penalty the continuous em- ployment by a street railway company of its servants more than ten consecutive hours, was not a valid ground for the forfeiture of the company's franchise.^" § 421. Wages deposited by servant to secure the faithful dis- charge of Ms duties — A stipulation in a contract of employment for the retention of a part of the servant's wages by a corporation employer as security for the faithful discharge of his duties, that the president of the company shall be the sole and final judge as to whether or not the facts on which the forfeiture depends have arisen, is an attempt to oust the courts of their jurisdiction and therefore void.^^ The Illinois Court of Appeals seems to have conceded the right of a railway corporation to enforce a stipulation that the superintendent of the company should be the final arbiter in such cases, but sought to mitigate the harshness of its niling, by holding that clauses in contracts of service in the nature of forfeitures must be strictly construed and that when the right to recover a deposit depends upon the exercise of the judgment of a given person, the forfeiture under such a clause will not be permitted unless it be shown that he acted in good faith and in a reasonable and not in an arbitrary or capricious manner.** "Bartlett v. Street Ry. Co. of "White v. Middlesex R. R. Co., Grand Rapids, 82 Mich. 658, 46 N. 135 Mass. 216, (1883). W. Rep. 1034, (1890). "Chicago City Ry. Co. v. Blanch- " People V. Atlantic Ave. R. R. ard, 35 lU. App. 481, (1889). Ck)., 125 N. Y. 513, 5l7, (1891). CHAPTEK XV. THE ACQUISITION, ENCUMBRANCE AND ALIENATION OP PROPERTY. § 422. Voluntary sale. 423. Mortgage. 424. Power to lease. 425. Rights and liabilities of lessor and lessee. § 426. Rights and liabilities of lessor and lessee further considered. 427. Judicial sale. 428. Liens of contractors, mechan- ics, laborers and material men. 429. Consolidation. § 422. Voluntary sale — A corporation cannot assign its vital franchise, or function of being a corporation, tO' any other person, natural or artificial, unless authorized by some specific legisla- tive provision or permission.^ Nor can a railroad corporation, vsdthout such authority, sell its real estate acquired by the right of eminent domain, or necessary for the transaction of the busi- ness for vphich it was incorporated and given its extraordinary powers ; nor can it, without legislative sanction, sell its franchise to operate and maintain its road.^ After the road is constructed and prepared for use, the corporation may alienate things requisite for its operation, which are regarded not as constituting a part of its real estate but as personal property, such as locomotives, cars and the like; and such property is liable to execution for its debts.* ' Coe V. Columbus, Piqua & In- diana R. R. Co., 10 Ohio St. 372, (1859); Memphis & Little Rock R. R. Co. V. Railroad Commission- ers, 112 U. S. 609, (1884); Fletsam V. Hay, 122 111. 293, (1887); Com- monwealth V. Smith, 10 Allen 448, (1865); Pierce on Railroads, p. 496; Simonds v. East Windsor Elec. Ry. Co., 73 Conn. 513, 48 Atl. Rep. 210, (1901). 'Rollins V. Clay, 33 Me. 132, (1851); Middlesex R. R. Co. v. Bos- ton & Chelsea R. R. Co., 115 Mass. 347, (1874); Fietsam v. Hay, 122 111. 293, (1887); Commonwealth v. Smith, 10 Allen 448, (1865) ; Pierce on Railroads, p. 496; Coe v. Co- lumbus, PlQua & Indiana R. R. Co., 10 Ohio St. 372, (1859); Farmers' Nat'l Bank v. Scott, 19 Tex. Civ. App. 22, 45 S. W. Rep. 26, (1898). See also Canal & Claiborne Ry. Co. V. St. Charles St. Ry. Co., 44 La. Ann. 1069. (1892). " Coe V. Columbus, Piqua & In- 680 § 423.] THE ACQUISITION OP PEOPEETT. 681 § 423. Mortgage — The reasons which, support the policy of the law forbidding the voluntary sale by a railroad corporation of its franchises and property acquired by eminent domain, with- out legislative authority, apply in the case of mortgages given by the corporation.* Legislative authority to borrow money to construct the road implies the power to mortgage,^ but not tc mortgage its corporate existence or any prerogative franchise con- ferred upon it.* The right to build and use the road is not, how- ever, a prerogative franchise, and the sale of the road under a mortgage will confer upon the purchaser the right to build and diana R. R. Co., 10 Ohio St. 372, (1879); Risdon I. & L. Wks. v. Citizens Trac. Co., 122 Cal. 94, 54 Pac. Rep. 529, (1898); McColgan V. Bait. Belt Ry. Co., 85 Md. 519, 36 Atl. Rep. 1026, (1897), holding that a general judgment creditor cannot, without legislative authority, levy upon lots belonging to the com- pany on which its tracks are laid. The right to maintain and op- erate a street railway company is an interest in land, and the pur- chaser thereof must be governed by the same rules that govern other purchasers of real estate in order to establish the fact that he is a bona fide purchaser. Detroit City St. Ry. Co. v. Detroit, 124 Mich. 449, (1900). See also Chi- cago Ry. Co. v. Fox River El. Co., 119 Wis. 181, (1903). ♦In Commonwealth v. Smith, 10 Allen 448, 87 Am. Dec. 672, (1865), the court said in substance: A railroad company, created for the express and sole purpose of con- structing, owning and maintain- ing a railroad; authorized to take land for this public purpose under the right of eminent domain whose powers are to be exercised by offi- cers expressly designated by statute having public duties, the discharge of which is the leading object of its creation and required to make returns to the legis- lature, is not authorized by com- mon law to alienate or mortgage its franchise without authority other than that derived from the fact of its incorporation. Cor- porations have power by common law to issue bonds, but under the statute of Massachusetts railroad corporations have no power to is- sue bonds for the payment of money except for the purpose and in the mode therein authorized. All bonds issued otherwise are void. A mortgage is void which is made to secure railroad bonds Issued for purposes not authorized by the statutes and not in the mode therein prescribed. In the case of Richardson v. Sibley, 11 Allen 65, 87 Am. Dec. 700, (1865), it was said: "A street railway cor- poration has no power to mort- gage its franchise, road or prop- erty without legislative authority, and a mortgage without such au- thority is wholly void." ° Bardstown & Louisville R. R. Co. v. Metcalfe, 4 Mete. (Ky.) 199, (1862); Illinois T. & S. Bank v. Pac. Ry. Co., 117 Cal. 332, 49 Pac. Rep. 197, (1897). ° Bardstown & Louisville R. R. Co. v. Metcalfe, supra; Coe v. Columbus, PIqua & Indiana R. R. Co., 10 Ohio St. 372, (1859); 682 THE LAW OF STEEET BAILWAT8. [§ 423. use it.'' The dissolution of the corporation by act of the legisla- ture does not impair rights acquired under a mortgage which was made in pursuance of law; and where a street railway com- pany had lawful authority to mortgage its franchises, and had lawfully acquired the franchise to operate a street railway in the streets of a city, it was held that a mortgagee had thereby an interest in such franchise, not simply in the tracks but also in the right to maintain the road in the public streets, which could not be taken away by the legislature, and that the power to annul the charter did not embrace the power to take away or destroy property or annul contracts.* Under proper legislative authority and by the use of apt and certain words, the mortgage may be made to cover future acquisitions by the corporation of property essential to the operation of the road.® "Where there is a lien on personal property at the time it becomes the mortgagor's property, and the property is claimed by the mortgagee under a clause for future-acquired property, the mortgagee takes it with the lien or incumbrance, provided it is separate and distinct and has not become part of the freehold which has been mort- gaged. •^'' Legislative authority to mortgage implies power to bor- row money and issue bonds, and where the company had authority to mortgage its property and assumed the power to execute a mortgage purporting to cover its franchise to be a corporation, it was held that the mortgage was not rendered void by including the franchise therein. ■'■^ Where a corporation has authority to Memphis & Little Rock R. R. Co. Ohio St. 523, (1864) ; Farmers L. & V. Railroad Commissioners, 112 U. T. Co. v. San Diego Co., 49 Fed. S. 609, (1884). Rep. 188, (1892); Hinchman v. Port 'Bardstown & Louisville R. R. Defiance Ry. Co., 14 Wash. 349, 44 Co. V. Metcalfe, 4 Mete. 199, (1862) ; Pac. Rep. 867, (1896). Coe V. Columbus, Plqua & Indiana '° New York Security & Trust Co. R. R. Co., 10 Ohio St. 372, (1859) ; v. Capital Ry. Co., 77 Fed. Rep. 529, New Orleans, Spanish Fort & (1896). See also Guaranty Trust Lake R. R. Co. v. Delamore, 114 Co. v. Galveston City Ry. Co., 107 U. S. 501, (1885); Memphis & Lit- Fed. Rep. 311, (1901); Westing- tie Rock R. R. Co. V. Railroad house Elec. Mfg. Co. v. Citizens' Commissioners, 112 U. S. 609, St. Ry. Co.. 24 Ky. Law Rep. 334, (1884). 68 S. W. Rep. 463, 26 Am. & Eng. R. "People V. O'Brien, Receiver, 111 Cas. (N. S.) 510, (1902). N. Y. 1, (1888). "Gloninger v. Pittsburgh & C. R. •Coopers & Clark v. Wolf, 15 R. Co., 139 Pa. St. 13, 21 AtL Kep. §424.] THE ACQUISITION OB" PEOPEETT. 683 execute a mortgage for the purpose of raising money and has re^ ceived the proceeds, it -will not be allowed to question its power to make the mortgage or the mode of its execution.*^ A mortgage of the railway has priority over the claim of a subsequent vendor of iron rails sold under an agreement of the vendee and vendor, that the rails, although fastened to the road-bed, should remain the property of the vendor until paid for; but subsequent en- cumbrancers with notice take subject to the vendor's rights.^^ § 424. Power to lease. — The power of a railroad corporation to lease its property and franchises is subject to the conditions and restrictions already stated with reference to sales and mortgages, i. e., its power to lease must be derived from legislative enact- ment.^* "Where the lease is authorized by statute the concurrence 211. (1891). See also Northside Ry. Co. V. Worthington, 88 Tex. 562, 30 S. W. Rep. 1055, (1895). "Thomas v. Citizens' Horse Ry. Co., 104 111. 462, (1882). See also Old Colony Trust Co. v. AUentown Rapid Trans. Co., 192 Pa. St. 596, 44 Atl. Rep. 319, (1899). "Hunt V. Bay City Iron Co., 97 Mass. 272, (1867). See also Gen- eral Elec. Co. V. Transit Equipment Co., 57 N. J. Eq. 460, 42 Atl. Rep. 101, (1898). " In Thomas v. West Jersey R. R. Co., 101 U. S. 71, (1879), the court held in substance: That a lease by a railroad company of its road, roll- ing stock and franchises, for which no authority Is given in its charter, is ultra vires and void; that a clause In the charter which authorized it to contract with other transporta- tion companies for the mutual trans- fer of goods and passengers con- ferred no authority to lease its road and franchises; that the franchises and powers of such a company are in a large measure designed to be exercised for the public good; that this exercise of them is the consid- eration for granting them; and that a contract by which the com- pany renders Itself incapable of performing its duties to the public and attempts to absolve Itself from Its obligations, with- out the consent of the state, vio- lates Its charter and is forbidden by public policy and Is, therefore, void. In Middlesex R. R. Co. v. Boston & Chelsea R. R. Co., 115 Mass. 347, (1874), it appears that a contract had been entered into between two street railway corporations, by which one of them attempted to transfer the entire control of its road with all its franchises to an- other, receiving in return only a fixed rent paid in the form of a dividend to its stockholders. This arrangement having been entered into without statutory authority was held to be ultra vires and void. The court also decided, that, as the lessee could not recover of the les- sor for the expense of renewing the road, except in a suit upon the void contract of lease, no action could be maintained in any form. See also Smith v. Reading City Pass. Ry. Co., 13 Pa. Co. Ct. Rep. 49, (1893) ; Hunting v. Hartford St. 684 THE LAW OF STBEET EAILWAY8. [§ 425. of the stockholders in the action of the directors in effecting such a lease is not necessary unless the statute or the by-laws of the corporation so require.'^ Where a statute prohibited companies owning parallel lines from leasing the one from the other, it was held, that, where the lines were parallel for only a portion of their routes, the statute did not prevent them from making traffic con- tracts for the partial use of those portions of their respective routes which were not parallel.^* §425. Eights and liabilities of lessor and lessee — Although it has been held that the lessor will be liable for the negligence of the lessee in the management of its property held and con- trolled under a lease expressly authorized by statute, unless the statute expressly exempts the lessor from its liabilities and respon- sibilities to the public,^^ the general rule is, that a valid lease made Ry. Co., 73 Conn. 179, 46 Atl. Rep. 824, (1900) ; Dickinson v. Consoli- dated Trac. Co., 114 Fed. Rep. 232, (1902). '^Beveridge v. New York Ele- vated R. R. Co., 112 N. Y. 1, (1889). " People V. O'Brien, Receiver, 111 N. Y. 1, (1888). "A statute of Massachusetts, Laws of 1854, C. 434, sec. 5, char- tered a street railway company and made it liable "for any loss or injury that a person may sustain by reason of any carelessness, neg- ligence, or misconduct of Its agents or servants, in the management, construction or use of said tracks, roads, or bridges." Subsequently, the corporation leased to another railway corporation a portion of its track for the unexpired term of its charter, subject, however, to all the conditions, restrictions, duties and liabilities imposed upon the les- sor by its charter, and the lessee covenanted and assumed to per- form them and to defend any suits brought against the lessor arising out of the operation and use of the road and to pay any judgment re- covered against the lessor. This lease was afterwards ratified by an act of the legislature. Neverthe- less, it was held that an action could be maintained against the les- sor for an injury to a passenger on a car of the lessee caused by the negligence of the lessee's servants. Braslin v. Somerville Horse R. R. Co., 145 Mass. 64, (1887). Said Allen, J., delivering the opinion of the court: "The general rule is familiar, that neither a steam nor a street railway corporation can make a valid transfer, either by way of absolute deed, mortgage, or lease of its franchise, or of Its rail- road and the bulk of its property, or relieve itself of the burdens im- posed upon it by law, or by its charter, without the consent of the state. Commonwealth v. Smith, 10 Allen 448: Richardson v. Sibley, 11 Allen 65; Central National Bank v. Worcester Horse R. R. Co., 13 Allen 105; Middlesex Railroad v. Boston & Chelsea Railroad, 115 Mass. 347; Davis v. Old Colony § 425.] THE ACQUISITION OF PEOPEETY. 685 under express statutory authority will exempt the lessor from all liability for negligence of the lessee which has full control and management of the railway.^* The lessee of a street railway en- gaged in operating it is liable for the negligence of its servants in the management of its cars, whether the lease under which it claims to derive its powers be valid or not.''® But if the lease is Railroad, 131 Mass. 258, 271; Rail- road V. Brown, 17 Wall. 445, 450; Bower v. Burlington & South West- ern R. R. Co., 42 la. 546. In Quested V. Newburyport Horse Railroad, 127 Mass. 204, a street railroad com- pany had leased its railroad and franchise under legislative author- ity to do so, it being expressly provided by statute, however, that such lease should not exempt such company from any duties or liabilities to which it would other- wise be subject. There Is no sim- ilar express provision in any statute affecting the present case, but on the other hand, we find nothing in- dicating an intent, that the defend- ant, by means of a lease, should be able to escape from its liabilities and responsibilities to the public." See also McLaughlin v. West End St. Ry. Co., 186 Mass. 150, (1904). In Illinois, it is held that a com- pany owning the tracks and fran- chise is responsible for the negli- gent operation of the road by its lessee. Chicago Union Trac. Co. v. Stanford, 104 111. App. 99, (1902); West Chicago St. Ry. Co. v. Ander- son, 102 111. App. 310, (1902). Texas is in accord with Massa- chusetts and Illinois, and the fact that the lessee company abandoned the old single track and laid and operated a double track, was held wholly immaterial. Ft. Worth St. Ry. Co. V. Ferguson, 9 Tex. Cv. App. 610, 29 S. W. Rep. 61, (1895). See also Durfee v. Johnstown R. R. Co., 71 Hun 279, (1893). ^ Fisher v. Metropolitan Elevated R. R. Co. and Manhattan Ry. Co., 34 Hun 433, (1885); Hart v. New Orleans & Carrollton R. R. Co., 4 La. Ann. 261, (1849); Weyant v. New York & Harlem R. R. Co., 3 Duer 364, (1854); Thompson v. New Orleans & Carrollton R. R. Co., 10 La. Ann. 403, (1855); Woo- ley V. Grand St. & Newtown R. R, Co.. 83 N. T. 121, (1880). The negligence of the lessee company which concurring with that of a third party causes injury to the lessor company's property, cannot be Imputed to the lessor company in a suit by it against the third party. New York, L. E. & W. R. R. Co. V. New Jersey Blec. Co., 60 N. J. L. 338, 38 Atl. Rep. 828, (1897). " Weyant v. New York & Harlem R. R. Co., 3 Duer 364, (1854); Thompson v. New Orleans & Car- rollton R. R. Co., 10 La. Ann. 403, (1855); Feltal v. Middlesex R. R. Co., 109 Mass. 398, (1872) ; Hart v. New Orleans & Carrollton R. R. Co., 1 Rob. (La.) 178, (1841); New York, Lake Erie & Western Ry. Co, V. Haring, 18 Vroom. 137, (1885), holding that the defendant charged with having Injured a passen- ger while ejecting him from its car with unnecessary force, could not shield itself on the ground that it was operating the rail- way under a lease without law- ful authority; Bishop, Non-Contract Law, sees. 733, 1108; Dixon v. Brooklyn City & Newtown R. R. Co., 100 N. Y. 170, (1885), holding 686 THE LAW OP STEEET RAILWAYS. [§ 426. made without statutory authority, both companies are liahle for the negligent acts of the lessee.*" § 426. Bights and liabilities of lessor and lessee further con- sidered. — The obligations of the lessee are fixed and detei-mined by the charter of the lessor.*^ The lessee is bound to pay the same license fee which the charter required the lessor company to pay to the city as a consideration for the use of the streets, whether the former had expressly agreed to do so or not.^^ A license given by one company to another to use a portion of the former's tracks does not authorize the latter to sub-let the right to a third com- pany to use the same conjointly with the two former companies.*' Where one street railway company granted to another the right to use a portion of the former's tracks and to make proper con- nections, and the latter was to put in the necessary switches, which it did properly, it was held that the latter was not liable to a pedestrian who was injured at a switch by reason of the pavement having become worn below the rails, it appearing that the lessor had agreed with the city to keep the pavement at that point in that a corporation, which, had ac- the lessor and the lessee are liable quired the right to run Its cars for for derelictions of duty, where the a portion of Its route over the lease has been made without legal tracks of another company, was authority. Louisville Ey. Co. v. liable for injury caused by piling Commonwealth, 130 Ky. 738, 113 S. up snow in the street to which It w. Rep. 517, 132 Am. St. Rep. 408, had contributed, even if, as be- (1908). tween the licensor and the licensee, the former was bound to keep the track clear from snow; Wooley v. Grand St. & Newtown R. R. Co., 83 ''Mayor v. Twenty-Thlrd St. R. N. Y. 121, (1880); Sadler v. South ^- ^°' *^ ^"'"^ ^^2, (1888); City of Staffordshire & Birmingham Dis- ^ew York v. Sixth Ave. Ry. Co., trict Steam Tramway Co., 23 L. R. '^^ App. Div. (N. Y.) 367, (1902); Q. B. D. 17, (1889). ^^^^ °^ New York v. Third Ave. Ry. ="Ricketts v. Birmingham St. Ry. Co- '7 App. Div. (N. Y.) 379, (1902). Co., 85 Ala. 600, 5 So. Rep. 353, " Coney Island & Brooklyn R. R. (1889) ; Abbott v. Johnstown, Glov- Co. v. Brooklyn Cable Co., 53 Hun ersvllle & Kingboro Horse R. R. Co., 169, (1889). See also Coney Island 80 N. Y. 27, (1880) ; Lakin v. Will- & Gravesend Ry. Co. v. Coney amette Valley & Coast R. R. Co., Island & Brooklyn R. R. Co., 38 13 Ore. 436, 11 Pac. Rep. 68, (1886) ; App. Div. (N. Y.) 494, (1899); Alexandria & Washington R. R. Co. South Side Pass. Ry. v. Sec- V. Brown, 17 Wall. 445, (1873). ond Ave. Pass. Ry. Co., 191 Pa. St It has been held, also, that both 492, 43 Atl. Rep. 346, (1899). * City of Chicago v. Evans, 24 111. 52, (1860). § 427.] THE ACQUISITION OF PEOPESTT. 687 repair, and that the licensee had assumed no liability in that re- gard either to the city or to the company which granted the license.** Where a company obtained the right to build and operate a street railway through the streets of a city from a part- nership to which the right was granted by the city, and the cor- poration, in receiving the same, took it with all the rights and property of the partnership and subject to the payment of a cer- tain debt for the construction of a sewer in the street, it was held that the creditor might sue the railway company on the debt.*^ And so where one company accepted the assignment of a lease and agreed to do all things which the assignor was bound to do therein, it was held that the lessor could maintain an action on such lease for the whole term against the assignee.^® § 427. Judicial sale. — Whatever can be mortgaged by a street railway corporation will pass by a sale upon a foreclosure of the mortgage.^^ This will include the ownership of the railway and the property appurtenant thereto and the franchise to maintain and operate it as such.** Where a statute gave the right to seize and sell upon execution the property and franchises of a corporation authorized to receive tolls, it was held that this provision applied to street railways and that a levy upon a judgment at law had prece- dence over a mortgage of prior date given to secure the issue of bonds, when the bonds had not been negotiated in the market, although they had been pledged by the treasurer of the corporation as security for a prior indebtedness of his own ; and in a foreclos- ure sale the levy was ordered to be satisfied first.** The road-bed, " Lowery v. Brooklyn City & New- St. Ry. Co., 96 la. 646, 65 N. W. town R. R. Co., 76 N. Y. 28, (1879). Rep. 982, (1896); Morley v. Saginaw " Dingledein v. Third Ave. R. R. Circ. Judge, 117 Mich. 246, 75 N. W. Co., 37 N. Y. 575, (1868). Rep. 466, (1898); Wells v. Northern ""Van Schaick v. Third Ave. R. R. Trust Co., 195 111. 288, 63 N. E. Rep. Co., 30 Barb. 189, (1859). 136, 25 Am. & Eng. R. Cas. (N. S.) ' "New Orleans, Spanish Fort & 478, (1902). Lake R. R. Co. v. Delamore, 114 U. It will also Include the right of S. 501, (1885) ; Memphis & Little eminent domain previously vested Rock R. R. Co. V. Railroad Com- in the mortgagor. Birmingham Ry. missioners, 112 TJ. S. 609, (1884). Co. v. Birmingham Trac. Co., 128 =* Memphis & Little Rock R. R. Ala. 110, 29 So. Rep. 187, (1900). Co. v. Railroad Commissioners, su- "McKey v. Grand Rapids & pra; Central Trust Co. v. Gate City Reed's Lake Street Ry. Co., 41 688 THE LAW OF STEEET EAILWAYS. [§ 428. rails and right of way of a railway are not personalty, and wken the statute authorizes their sale by the sheriff as upon execution the requisites of an execution sale of realty must be observed.^" A director of a corporation has no right to buy the corporate property at judicial sale without the consent of the corporation or the per- mission of the chancellor, and the consent of his co-directors is no justification.^-' A receiver pendente lite of an insolvent street railway corporation, while a mortgage of its property and franchises is in process of foreclosure, has no power to accept new privileges and franchises which would enure solely to the benefit of the purchasers at the foreclosure sale or to the creditors of the com- pany. ^^ A court of equity, having taken a railroad corporation into its charge, will not allow a receiver of the road appointed by the court to be arrested on the claim that the operation of the road by the receiver is a nuisance.*^ While the road is being operated by the receiver, actions for negligence should be brought against the receiver and not against the corporation.'* In the foreclosure of a mortgage against a street railway company the court refused to direct the receiver to pay moneys out of his hands for the pur- pose of grading and macadamizing the street along and between the rails in accordance with an order of the town trustees, where there was no lien in favor of the town for such expenditures.'^ § 438. Liens of contractors, mechanics, laborers and material- men. — ^As liens in favor of contractors, mechanics, laborers and Mich. 274, (1879). See also Williams (1902). See also Atkins v. Judson, V. East Wareham St. Ry. Co., 171 33 App. Div. (N. Y.) 42, (1898). Mass. 61, 50 N. E. Rep. 646, (1898). »= United States v. Murphy, 44 » Hart V. Benton-Bellefontaine Ry. Fed. Rep. 39, (1890). See also North Co., 7 Mo. App. 446, (1879); sees. Chicago St. Ry. Co. v. Hutchinson, 271, 273, ante, and cases there cited. 191 111. 104, 60 N. E. Rep. 850, =1 Covington & Lexington R. R. (1901). Co. V. Bowler's Heirs, 9 Bush. (Ky.) " Howard v. Philadelphia & Read- 468, (1872). See also Horbach v. ing R. R. Co., 6 Pa. Co. Ct. Rep. Marsh, 37 Neb. 22, 55 N. W. Rep. 589, (1889). 286, (1893) ; College Park Elec. Belt » Union Loan & Trust Co. v. Line v. Ide, 15 Tex. Civ. App. 273, Southern California Motor Co., 49 40 S. W. Rep. 64, (1897). Fed. Rep. 267, (1892). '" Negus V. City of Brooklyn, 10 It has been held that the holder Abb. N. C. 180, (1881); Pueblo of bonds secured by mortgage has Trac. Co. v. Allison, 30 Colo. 337, no right to redeem from foreclosure § 428.] THE ACQUISITION OF PEOPEETY. 689 material-men are created by statute, the right to assert such a privilege cannot be extended by construction and must be denied unless clearly conferred by some positive enactment.** To de- termine whether such a lien can be obtained and to what property it may attach, as well as the steps necessary to perfect it, we must look in each instance to the statute by virtue of which the right is asserted. Under the rule of strict construction above stated, but applied with questionable propriety, the Supreme Court of Washington has held that laborers could not obtain a lien upon a street cable railway, under a statute which gives to laborers a lien upon "a railroad" or "any other structure," because as there could be no lien upon the fee of the street, it being ia the city, there could be none upon the structure placed upon the same.*^ Where an act provided that a mechanic's lien should be superior to all other liens, and a trust deed had been given to secure the issuing of bonds before the act took effect, it was held that the trust deed had priority, even though some of the bonds were sold and paid for after the contract of the mechanic had been made, it having been made before the act became effective.^® The use of materials in the construction of a railway will not entitle the vendor to a lien, if they were not sold either to the owner of the railroad or to its agent or to a sub-contractor engaged in the work of laying the track.** The affidavit to a statement of account is valid although verified beyond the state and authenticated only by the official seal of the notary.*" Nor is it necessary that the ma- sale, as such right exists solely in utes by the courts of different the mortgagor. Providence Life & states. Trust Co. V. Trenton Ry. Co., 177 =' Front St. Cable Ry. Co. v. John- Fed. Rep. 854, (1910). son, 2 Wash. 112, 25 Pac. Rep. 1084, " In Missouri, under Revised Stat- (1891). utes, 1889, sec. 6741, those who con- =» Andrews v. St. Louis Tunnel R. struct a bridge for a street rail- R. Co., 16 Mo. App. 299, (1884). way company may have a mechan- See also Pensacola v. Northrup, 66 Ic's lien on the bridge for work or Fed. Rep. 689, 14 C. C. A. 59, labor done. Koken Iron Wks. v. (1895) ; Sioux City Elec. Sup. Co. v. Robertson Ave. Ry. Co., 141 Mo. 228, Sioux City & L. Elec. Ry. Co., 106 (1897). Ia. 573, 76 N. W. Rep. 838, (1898). Mr. Phillips, in his treatise on "^ Woodward v. American Exposi- Mechanlcs' Liens (2d Ed.), sec. 15, tion Ry. Co., 39 La. Ann. 566, (1887). et seq., discusses the rules of in- "Wood v. St. Paul City Ry. Co., terpretatlon applied to such stat- 42 Minn. 411, (1890). 44 690 THE LAW OF STEEET EAILWAYS. [§ 429. terials be furnished or delivered ■within the state to entitle the vendor to a lien.*^ §429. Consolidation — ^Railroad corporations have no power to consolidate except by statutory authority." In many of the states parallel and competing steam railroads are prohibited by statute from consolidating. But it was held in Pennsylvania that such a prohibition in the constitiition of that state had no application to street railways, for the reason that the mischiefs intended to be guarded against by the constitutional provision could not in the nature of things arise with reference to street rail- ways.*^ In Georgia it was held that a prohibition in the consti- tution forbidding any corporation from buying shares or stock in any other corporation applied to and included all corporations, and was, therefore, applicable to street railway companies.** It was held in I^ew York that the act authorizing the consolidation of steam railroads applied to and authorized the consolidation of street railways.*^ Consolidation amounts to a surrender of the old charter and the formation of a new corporation out of such parts of the old as enter into the new.*® The consolidation vests "■ Thompson v. St. Paul City Ry. St. 96, 20 Atl. Eep. 399, (1890) ; Co., 45 Minn. 13, (1890). See also Robinson v. Wilkinsburg & East Oberholtzer v. Norristown Pass. Ry. Pitts. St. Ry. Co., 32 Pitts. 369, Co., 16 Pa. Co. Ct. Rep. 13, (1895); (1902); Penna. R. R. Co. v. Inland Lee V. Pa. Trac. Co., 105 Fed. Rep. Trac. Co., 18 Montg. (Pa.) 130, 405, (1900); Pittsburg Testing Lab- (1902). oratory v. Milwaukee Elec. Ry. Co., " Trust Company of Georgia v. 110 Wis. 633, (1901). Where re- State of Georgia, 109 Ga. 736, 35 S. tention of the possession of per- E. Rep. 323, 48 L. R. A. 520, (1899). sonal property is essential to the Said Lewis, J., p. 755: "The ques- preservation of a lien thereon for tion is, at last, one of fact, and In the purchase price, continued actual its adjudication in any particular physical possession is not neces- case the courts should be governed sary; it is sufficient if the lien by the fundamental principle as to claimant retains such possession whether there was such a creation as will preserve in him the actual of a monoiwly or defeating of corn- control of the property. Woodland petition as would result In injury Co. V. Mendenhall, 82 Minn. 483, 85 to the public." N. W. Rep. 164, (1901). «In re Washington St., Asylum "State V. Bailey, 16 Ind. 46, & Park R. R. Co., 52 Hun 311, (1861); Lauman v. Lebanon Valley (1889). R. R. Co., 30 Pa. St. 42, (1858). "State v. Bailey, 16 Ind. 46, "Appeal of Montgomery, 136 Pa. (1861); Lauman v. Lebanon Val- § 429.] THE ACQUISITION OF PEOPEETY. 691 the rights, property and franchises of the constituent corporations in the consolidated corporation, subject to all the liabilities of the original corporations.*'' If there was in fact a consolidation, the consolidated company cannot deny its liabilities, either for con- tracts or torts, upon the plea that its organization is illegal. Nor can the consolidated company raise the question of insolvency of one of the constituent companies. The question is not whether either of the old companies was solvent or insolvent, but whether the new company has sufficient assets to pay its debts which include those of the old companies.*^ For example, where the constituent companies were required to be at the expense of pav- ing, repairing and repaving the streets, the consolidated corpo- ration has the same liability.** A dissening stockholder is not compelled to take stock in the new corporation in exchange for his stock in the old. He may enjoin the consolidation until his rights in that regard are secured, and is entitled to have the value of his stock judicially ascertained and paid for before the consoli- dation takes effect.'''* It has been held that one or more stock- holders may maintain an action against the directors of the cor- poration who in fraud of their trust were undertaking to merge the existence of the corporation into another competing insol- ley R. R. Co., 30 Pa. St. 42, (1858). Mich. 588, (1899); Greene v. Wood- A corporation formed by the con- land Ave. St. Ry. Co., 62 Ohio St. solidation of two or more companies 67, 56 N. E. Rep. 642, (1900) ; Capi- holds Its property acquired by such tal Trac. Co. v. Offutt, 17 App. Cas. consolidation In its own right, and (D. C.) 292, (1900); City of New not in trust for the constituent York v. Sixth Ave. Ry. Co., 77 App. companies. Greene v. Woodland Div. (N. Y.) 367, (1902) ; Beaumont Ave. Ry. Co., 62 Ohio St. 67, (1900). Trac. Co. v. Texarkana St. Ry. Co., An action against one of the con- 124 S. W. Rep. 987, (Tex. 1910). stituent companies commenced ^ Shadford v. Detroit, Ypsilanti after consolidation cannot be main- & Ann Arbor Ry. Co., 130 Mich. 300, tained. Cameron v. United Trac. 89 N. W. Rep. 960, 25 Am. & Eng. Co., 67 App. DIv. (N. Y.) 557, (1902). R. Cas. (N. S.) 845, (1902). "Indianapolis, Cincinnati & La "City of Philadelphia v. Ridge Fayette R. R. Co. v. Jones, 29 Ind. Ave. Pass. Ry. Co., 142 Pa. St. 484, 465, (1868) ; Louisville, New Albany 22 Atl. Rep. 695, (1891) ; Kent v. & Chicago Ry. Co. v. Boney, 117 Council of Binghamton, 61 App. Dlv. Ind. 501, (1888); Zealy v. Blrmlng- (N. Y.) 323, (1901). ham Ry. Co., 99 Ala. 579, 13 So. Rep. »» State v. Bailey, 16 Ind. 46, 118, (1893); Wallace v. Ann Arbor (1861); Lauman v. Lebanon Valley & Tpsilanti Elec. Ry. Co., 121 R. R. Co., 30 Pa, St. 42, (1858). 692 THE XAW OF STEEET EAILWATS. [§ 429. vent corporation, and -were misusing the revenues of the company and endangering its corporate existence, and that in such a case a receiver may be appointed.^^ A provision inserted ia the charter of the new corporation forfeiting dividends not claimed within three years from the time when declared has been held not to bind a stockholder in the old corporation unless he had assumed the quality of a stockholder in the new company."^ "Becker v. Gulf City St. Ry. "Armant v. New Orleans & Car- Co., 80 Tex. 475, (1891). roUton R. R. Co., 41 La. Ann. 1020, (1899). CHAPTER XVI. INTERURBAN RAILWAYS. §430. Introduction — definition. 1 431. Distinguished from street railways and commercial railroads. 432. Classification by statute. 433. Incorporation. 434. The franchise — consents of public authorities. 435. Consents of public authori- ties further considered. 436. Conditions attached by pub- lic authorities. 437. Transfers. 438. Consents of abutting owners. 439. Forfeiture — collateral attack. 440. Additional servitude. 441. Additional servitude further considered. 442. Compensation to abutting owners for use of highway. 443. Damages for special injuries — interference with right of ingress and egress — change of grade. 444. Liability to public authori- ties for unauthorized use of highway. 445. Injunction. 446. Eminent domain. 447. Damages for property con- demned — practice. 448. Acquisition of property by purchase — breach of con- ditions. 449. Turnpikes — construction and operation on. 450. Grade crossings. 693 451. Regulation by statute and ordinance. 452. Taxation. 453. Obstructions in right of way. 454. Interfering electric currents. 455. Negligence — general state- ment. 456. Degree of care required of travelers when crossing tracks — look and listen rule. 457. Traveler on tracks — relative rights and duties. 458. Assumption of risk — "Last Clear Chance" doctrine. 459. Injury to animals on track — duty to fence. 460. Injuries from electric shock — third-rail. 461. Parks. 462. Degree of care required of carrier — res ipsa loquitur. 463. Duty to provide safe place to alight. 464. Duty to passenger entering or leaving car — boarding car while in motion. 465. Injuries to passengers before boarding and after leaving car. 466. Degree of care required of passenger — protruding arm or hand from window. 467. Riding on platform. 468. As carriers of freight. 469. Miscellaneous — rate of speed — fiagging system. 694 THE LAW or STEEBT KAILWAY8. [§ 430. I 470. Fellow servant— master and § 473. Joint use of tracks, servant. 474. Traffic agreements. 471. Employers' liability laws. 475. Consolidations, leases, mort- 472. Statutes relating to actions ^^^®^' ^^'^^ for death. *'^^- Interstate commerce law. §430. Introduction — definition ^When the first edition of this work was published interurban railway traffic was in its in- fancy. Since thfit time thousands of miles of such railways have been constructed in this country, and there has been a correspond- ing development, by statute and adjudication, of the law relating to this new mode of traffic. "While an interurban railway is not, properly considered, a street railway, it is a development of the electric street railway and partakes largely of its characteristics, and for that reason should be considered in this edition. On account of the development of the use of electricity as a motive power and by the extension of the street railway beyond the limits of the city and town, there has grown up a system of electrical railways connecting cities, towns and villages, operated generally throughout the populous sections of United States and Canada. Many of these railways, by connections with other lines, form parts of interurban systems extending hundreds of miles in length.^ The interurban railway has been defined as a railway ' Zehren v. Milwaukee Ry. Co., 99 used these highways jointly with Wis. 83, 74 N. W. Rep. 538, (1908) ; travelers by other modes. They Diebold v. Kentucky Trac. Co., 117 did not need to go upon private Ky. 146, 77 S. W. Rep. 674, (1903). property. The law did not contem- In Montgomery Amusement Co. plate that they should. Besides, the V. Montgomery Traction Co., 139 value of private property adjacent Fed. Rep. 350, 357, (1905), it is to these highways practically for- said: "Street railways superseded bade its acquisition, if the law had stage coaches, omnibus lines, and, permitted it, for use as a right of in a large measure, hacks, in carry- way. Being thus limited In their ing passengers to and from points sphere of operation and powers, in cities and towns and to suburban the term 'street railway,' in legal places. They went originally only and popular acceptation, at first in- to points reached by public high- eluded only surface roads built ways. The public convenience and upon streets and public highways safety alike demanded that the for the carriage of passengers in grade of such highways should not and about cities and towns and ad- be altered to meet the needs of a jacent suburban places. Under the new method of conveyance, which influence of changed conditions of § 431.J IHTEBUEBAN EAILWATS. 695 operated on the streets of a city or town by electricity, or by other power than steam, which extends beyond the corporate limits of such city or town to another city, town or village, or, any railway operated by other power than steam extending from one city, town or village to another city, town or village.* § 431. Mstingiiislied from street railways and commercial railroads — Intemrban railways are of a hybrid character and partake to some extent of the nature of both street railways and commercial railroads. In cities and towns they resemble street railways in many respects, they are operated upon the streets, population and social life, these surface roads on the streets and highways began to serve the wants of the people In places not In any city or town, but in the vicinity thereof, and sometimes reached out to places not upon any public highway. The legislature of this state [Alabama], recognizing the usefulness of street railways, and the changed conditions which had grown up, conferred upon them larger discretion as to their termini, and gave them in some instances the power to condemn private prop- erty for rights of way to reach their termini. So, In this state, at least, the meaning of the phrase 'street railway' gradually broadened until it Included not only surface roads for passengers on streets and high- ways, but also what are now known as 'trolley lines,' which reach out from cities to the adjoining coun- try, and frequently run off the pub- lic roads — a policy the public au- thorities now encourage — ^In order to reach points in the vicinity of cities and towns, though outside of their boundaries, and off the public highways, wherever passen- ger traffic encourages street rail- way service." 'Act of 29th General Assembly, Iowa, page 49, chapter 81, supple- ment t") code sec. 2033a. See Cedar Rapids Ry. Co. v. Cummins, 125 la. 430, 101 N. W. Rep. 176, (1904). Bishop, J., said: "The definition found In the statute accords with the common understanding. Both agree that an interurban line Is one extending from within the limits of one city or town to and within the limits of another city or town." Baldwin, in his work on "Amer- ican Railway Law," sec. 6, gives the following definition: "Inter- urban railways are those connect- ing distant communities, which are laid mainly on highways, and as to so much of them as lie within each of ttes3 communities are built upon its streets and operated so as to permit local convenience and make these streets more serviceable to the public." Since this definition was given, however, many inter- urban lines have been constructed largely upon private rights of way, and many of the recently con- structed railways are engaged al- most exclusively in interurban busi- ness and are not operated to ac- commodate local traffic within the municipalities through which they run. See also Waterloo Tran. Co. v. Supervisors, 131 la. 237, 108 N. W. Rep. 316, (1906); State v. Dayton 696 THE LAW OF STEEET EAILWAYS. [§ 431. their cars stop at street corners for the accommodation of passen- gers, and the road bed is constructed so as to conform to the grade of the streets and not to interfere with the trafSc thereon. In the country, however, the modem lines are constructed to a large extent upon private rights of way, upon road beds similar in construction to steam railroads, with the "T" rail, and, in some cases, upon graded and rock ballasted roads; the cars run at a high rate of speed, stop only at designated stations, and iisually are larger and heavier than ordinary street cars. In fact, they are becoming more and more like commercial railroads. Many of them carry mail, express and light freight; some of them cany heavy freight, a few of them operate special freight trains, while on some of the western lines sleeping cars have been added to the limited trains.* In several states the com- Trac. Co., 64 Ohio St. 272, 60 N. E. Rep. 291, (1901); Hannah v. Met- ropolitan Ry. Co., 81 Mo. App. 78, (1899). ' San Francisco Ry. Co. v. Scott, 142 Cal. 222, 75 Pac. Rep. 575, (1904). The court said: "There has recently come into existence a certain class of railroads known as 'interurban railways,' which are a sort of hybrid having in some re- spects the characteristics of the ordinary railroad and in others those of the street railroad. Within the limits of the cities which they enter they usually pass along the streets and perform the ordinary functions of street railroads, stop- ping where desired to let passen- gers on and off and serving the public need for local street travel. Outside the cities, on their way from one city or town to another, they frequently travel upon a road- way obtained from private persons, not upon a public road, and stop, as in cases of ordinary railroads, only at stations established by them for that purpose. They also convey freight as well as passen- gers." In Wilder v. Aurora Trac. Co., 216 111. 493, 528, 75 N. B. Rep. 194, (1905), the court said: "It cer- tainly can make no difference whether the cars of a railroad com- pany are propelled by the agency of steam, or of gasoline, or of elec- tricity, compressed air, liquified air, or any other agency which science and the inventive genius of man may in the future bring into use. Rather the character of a railroad company is determined by the nature and extent and limits put upon its operation by law or other- wise and by the character and object of its corporate creation as shown by its charter." In Riggs v. St. Francois Ry. Co., 120 Mo. App. 335, 96 S. W. Rep. 707, (1906), it was held: "The principal difference between commercial and street railways is tested by the peculiar character of the territory the railways are operated in and the safety, comfort and wants of the people in that territory." See also Schaaf v. Cleveland Ry. Co., 66 Ohio St. 215, 64 N. E. Rep. 145, 27 A. & E. R. Cas, (N. S.) 832, (1902); De Grauw v. Long Island §431.j INTEEUEBAIT EAILWAYS. 697 panies are authorized to exercise powers not confeiTed on street railway companies, such as the power of eminent domain for the acquisition of a private right of way,* the privilege to operate freight trains, or special termini privileges.*^ In some juris- dictions it has been held that the regulations and powers of the street railway are applicable to the interurban railway in the operation of its cars within the municipality; but when its cars are operated in the open country, outside of the municipality, at a high rate of speed and upon a track substantially the same as that of a steam railroad, the same rules should prevail as are applicable to the latter.^ Usually, there is a distinction between Elee. Ry. Co., 60 N. Y. Supp. 163, 43 App. Div. (N. Y.) 502, (1899); Diebold v. Kentucky Trac. Co., 117 Ky. 146, 77 S. W. Rep. 674, (1903); Malott V. Collinsville Ry. Co., 108 Fed. Rep. 313, 318, (1901); South- ern Ry. Co. V. Atlanta Ry. Co., Ill Ga. 679, 36 S. B. Rep. 876, 51 L. R. A. 125, (1900); Cedar Kapids Ry. Co. V. Cedar Rapids, 106 la. 476, 76 N. W. Rep. 728, (1898). In Rische v. Texas Transportation Co., 27 Tex. Civ. App. 33, 66 S. W. Rep. 324, (1901), the court held that the real distinction between a street rail- way and a commercial railroad is that the latter is constructed and operated for the carriage of freight. See also sec. 430, ante. * Sec. 446, post. 'a Montgomery Amusement Co. v. Montgomery Traction Co., 139 Fed. Rep. 350, (1905). ' Cincinnati Ry. Co. v. Lohe, 68 Ohio St. 101, 67 N. E. Rep. 161, 67 L. R. A. 637, (1903). In this case it was held that although the inter- urban railway Is classed as a street railway by the statutes of Ohio, the law of negligence governing the standing on a platform of a moving interurban car outside of the municipality is the same as in the case of steam cars. See also Riggs V. St. Francois Ry. Co., 120 Mo. App. 335, 96 S. W. Rep. 707, (1906). It was decided in McNab v. United Ry. Co., 94 Md. 719, 51 Atl. Rep. 421, (1902), that the law in regard to the care required at inter- urban railway road crossings in the country is the same as that which applies to commercial railroads, and that the rule in a municipality is the same as that which applies to street railways. The court said: "The difference in the method of construction of the tracks in the country from that in the city; the very marked difference in the speed attained In the one locality from that tolerated in the other; the adaptation of city streets to the uses of pedestrians and vehicles of all kinds, as well as to the cars, are all circumstances wholly apart from what the motive power pro- pelling the cars may be, which must be considered in determining whether a given act was or was not an act of contributory negligence. Thus to drive across a street car track at the intersection of two streets in the city where the rails are flat and offer no resistance might not be an act of contributory negligence even though the ap- proaching car, going at the rate of six miles, but required to stop or 698 THE LAW OF STEEET BAILWAYS. [§ 431. the intemrban railway and the suburhan line, due to a marked difference in their construction, their equipment and the mode of their operation, a difference which materially affects the rights, duties and liabilities of those who operate them. The suburban railway has the general characteristics of a street railway and is usually an extension thereof from a municipality into its suburbs.* § 432. Classification by statute — Whether interurban rail- ways are controlled by statutes relating to commercial railroads or by those relating to street railways is a question which has been decided differently in different jurisdictions.^ 'So arbitrary rule slow up on the near side of the in- tersected street, was but forty feet distant; but to make tlie same at- tempt in the country where "T" rails themselves interpose obstruc- tions and where the car is running at the same high rate of speed, which cars propelled by steam at- tain, would he just as clearly an act of contributory negligence as it would be were thii car being moved by steam power instead of by elec- tricity." See also Cedar Rapids Ry. Co. v. Cummins, 125 la. 430, 101 N. W. Rep. 176, (1904); San Francisco Ry. Co. V. Scott, 142 Cal. 222, 75 Pac. Rep. 575, (1904); Kinsey v. Union Trac. Co., 169 Ind. 563, 81 N. E. Rep. 922, (1907); Jeffers v. Annapolis, 107 Md. 268, 68 Atl. Rep. 553, (1907). ° A number of suburban cases are included in this chapter. It is often impossible to distinguish, from the cases, whether a railway operating upon a country road is suburban or interurban. ' Cases In which street railway statutes are held to apply to inter- urban railways: Skelly v. Mont- ville Ry. Co., 67 Conn. 261, 34 Atl. Rep. 1040, (1896) ; Indianapolis & Greenfield Tran. Co. v. Andls, 33 Ind. App. 625, 72 N. B. Rep. 145, (1904) ; Thompson v. Supervisors, 111 Cal. 553, 44 Pac. Rep. 230, (1896); Riggs v. St. Francois Ry. Co., 120 Mo. App. 335, 96 S. W. Rep. 707, (1906); Cedar Rapids Ry. Co. V. Cedar Rapids, 106 la. 476, 76 N. W. Rep. 728, (1898). In Ohio interurban railways are by statute classed as street rail- ways. Cincinnati v. Lohe, 68 Ohio St. 101, 67 N. B. Rep. 161, (1903); Cleveland Ry. Co. v. Urbana Ry. Co., 26 Ohio C. C. 180, (1903). In Galveston, H. & S. A. Ry. Co. v. Houston Elec. Co., 122 S. W. Rep. 287, (1909), the court held that an act conferring the right of eminent doma,in on interurban railways does not apply to street railways, al- though the interurban railway was incorporated under a general act applying both to interurban and to street railways. Cases holding that commercial railroad statutes do not apply to interurban railways : San Francisco Ry. Co. V. Scott, 142 Cal. 222, 75 Pac. Rep. 575, (1904); Indianapolis Trac. Co. v. Kinney, 171 Ind. 612, (1908) ; Kansas City Ry. Co. v. Rail- road Commissioners, 73 Kan. 168, 84 Pac. Rep. 755, (1906) ; C. & H. Elec. St. Ry. Co. v. C. H. & I. R. R. Co., 21 Ohio C. C. 391, (1898). Cases holding that commercial § 432.J INTEBtJEBAN BAILWAYS. 699 can be adopted, but each case must depend upon the particular statute under consideration and its interpretation by the courts. Each statute must be construed according to its terms, having in view the circumstances of the case, the context, the presumed intention of the law makers and the general policy of the state in regard to the matter.® In some states the interurban railway is classed by itself and special statutes have been enacted relating thereto.® In those jurisdictions questions have arisen, from time railway statutes do apply to inter- urban railways: Louisville Ry. Co. V. Commonwealth, 130 Ky. 738, 114 S. W. Rep. 343, (1908); Cedar Rap- ids Ry. Co. V. Cummins, 125 la. 430, 101 N. W. Rep. 176, (1904); Louis- ville R. R. Co. V. Anchors, 114 Ala. 492, 22 So. Rep. 279, (1896); Malott T. Collinsville Ry. Co., 108 Fed. Rep. 313, (1901) ; Payetteville Ry. Co. v. Aberdeen R. R. Co., 142 N. C. 423, 55 S. E. Rep. 345, (1906); Bliza- bethtown R. R. Co. v. Ashland Ry. Co., 96 Ky. 347, 26 S. W. Rep. 181, (1894); Diebold v. Kentucky Trac. Co., 117 Ky. 146, 77 S. W. Rep. 674, (1903), holding that an electric rail- way company authorized to perform the duties of carrier of freight and passengers between cities in differ- ent states and all intermediate points is a trunk railway, within the constitution of the state, (sec- tion 164) declaring that no city shall grant any franchise to street railway, gas, water, or certain other corporations except to the highest and best bidder therefor, but that the section shall not apply to a trunk railway. Cases holding that the commer- cial railroad law in regard to the protection of life and property ap- plies to interurban railways : Louis- ville Ry. Co. V. Anchors, 114 Ala. 492, 22 So. Rep. 279, 62 Am. St. Rep. 116, (1897) ; Birmingham R. R. Co. V. Jacobs, 92 Ala. 187, 9 So. Rep. 320, (1890); Hannah v. Metropol- itan Ry. Co., 81 Mo. App. 78, (1899) ; Riggs V. St. Francois Ry. Co., 120 Mo. App. 335, 96 S. W. Rep. 707, (1906);McQuade v. St. Louis Ry. Co., 200 Mo. 150, 98 S. W. Rep. 552, (1906). ' Ferguson v. Sherman, 116 Cal. 169, 47 Pac. Rep. 1023, 37 L. R. A. 622, (1897). "Cedar Rapids Ry. Co. v. Cum- mins, 125 la. 430, 101 N. W. Rep. 176, (1904); Waterloo Trans. Co. v. Supervisors, 131 la. 237, 108 N. W. Rep. 316, (1906); Kinsey v. Union Trac. Co., 169 Ind. 563, 81 N. B. Rep. 922, (1907); Ecorse v. Jack- son Ry. Co., 153 Mich. 393, 117 N. W. Rep. 89, (1908); State v. Wil- liams, 227 Mo. 32, 127 S. W. Rep. 52, (1910). As to the power of the legislature under the state constitution to classify Interurban railways sepa- rately from other railroads, see Chicago Ry. Co. v. Railroad Com- mission of Indiana, 173 Ind. 4C9, 90 N. E. Rep. 1011, (1910). In this case the court held that it was proper to classify them according to the relative percentage of their receipts derived from carrying freight. See also Haladay v. Detroit Ry. Co., 155 Mich. 436, 119 N. W. Rep. 445, (1909); Mull v. Indianapolis Trac. Co., 169 Ind. 214, 81 N. E. Rep. 657, (1907) ; Indianapolis Trac. Co. V. Smith, 42 Ind. App. 604, 86 N. E. Rep. 498, (1908). 700 THE LAW OF STREET EAILWAYS. [§ 432. to time, as to the applicability of street railway or commercial railroad statutes to subjects on which there is no legislation relating especially to interurban railways. In the absence of such special statutes, the legislation relating to street railways generally govern those portions of the interurban lines which are operated within municipalities,-^" and the commercial rail- road statutes are usually applied to those portions of the lines outside of the municipalities.-^^ A statute relating to street rail- ways or commercial railroads may include by inference inter- urban railways although they were not originally contemplated or in existence when the statute was passed." In a late Kentucky case it was decided that the statute relating to railroads requiring them to provide their locomotive engines -with bells and steam whistles and to ring the one and sound the other outside of cities at a grade crossing of its road over a highway, applies to inter- urban railways by virtue of the statute providing that interurban electric railway companies shall be under the same duty so far as practicable as railroad corporations, and that the interurban com- pany must provide an electric gong and whistle and give such warning at crossings, any engine used in producing motion whether by steam or other power being a locomotive engine within the statute and the gong and electric whistle being but substitutes for the bell and steam whistle required by the statute.^* '» Louisville & N. R. Co. v. An- N. W. Rep. 176, (1904) ; San Fran- chors, 114 Ala. 492, 22 So. Rep. 279, Cisco Ry. Co. v. Scott, 142 Cal. 222, (1897); Hannah V. Metropolitan Ry. '75 Pac. Rep. 575, (1903). Co., 81 Mo. App. 78, (1899). " State v. Cleveland, 93 N. B.Rep. "Cincinnati Ry. Co. v. Lohe, 68 467, (Ohio, 1910). In this case it Ohio St. 101, 67 L. R. A. 637, 67 N. was held that the general code, E. Rep. 161, (1903); Kiggs v. St. sec. 12497, making it an offense Francois Ry. Co., 120 Mo. App. 335, punishable by imprisonment or fine 96 S. W. Rep. 707, (1906). But see to throw a stone or other hard sub- Waterloo Trans. Co. v. Supervisors, stance or shoot a missile at a rall- 131 la. 237, 108 N. W. Rep. 316, road car or street railway car, in- (1906), holding that for the purpose eludes an interurban car, although of taxation both that portion of the such cars were not known or In interurban railway in the country use at the time the statute was and on the streets of the city should enacted. be assessed as an interurban rail- " Commonwealth v. Louisville Ry. way. See also Cedar Rapids Ry. Co., 131 Ky. 583, 133 S. W. Rep. Co. v. Cummins, 125 la. 430, 101 230, (1911). § 433.] INTBBTTEBAN RAILWAYS. 701 §433. Incorporation — ^Until recently there have been no special statutes authorizing the incorporation of companies to construct and operate interurban railways, and, in the absence of such legislation, the question has arisen whether they should be incorporated under the general railroad law or under the statutes relating to the incorporation of street i-ailway companies. This question is generally determined by the wording of the particular statutes of the respective states. There are certain powers which are essential for the construction of interurban railways but not for the construction of street rail- ways, such as the power of eminent domain for acquiring a right of way, and, where there is no statute specifically relating to inter- urban railways, such companies have been, in many of the states, incorporated under the commercial railroad law." In other states, however, they are incorporated as street railways with power to extend their lines into the country, to the suburbs or to connect one municipality with another.^* In the latter case. "Malott V. CoUlnsvIUe Ry. Co., 108 Fed. Kep. 313, (1901). In this case it was held that a corporation organized in Illinois for the purpose of building and operating an elec- tric railway and incorporated under the provisions of the general rail- road act (Rev. Stat. 111. C. 114), is a railroad company, for all pur- poses relating to the exercise of the power of eminent domain and sub- ject to all statutory provisions affecting the right of such com- panies to make crossings over the tracks of other roads. Elizabeth- town Ry. Co. V. Ashland Ry. Co., 96 Ky. 347, 26 S. W. Rep. 181, (1894); De Grauw v. Long Is. Ry. Co., 43 App. Div. (N. Y.) 502. 60 N. T. Supp. 163, (1899); Fayette- vlUe Ry. Co. v. Aberdeen R. R. Co., 114 N. C. 423, 55 S. E. Rep. 345, (1906). "Galveston Ry. Co. v. Houston Blec. Co., 122 S. W. Rep 287, (Tex. 1909). Under the Texas statutes interurban railways and street rail- ways are speciflcaUy named in the same general incorporation law. See also South ISJast Ry. Co. v. Evansville Ry. Co., 169 Ind. 339, 82 N. B. Rep. 765, 13 L. R. A. (N. S.) 916, (1907); Cedar Rapids Ry. Co. V. Cedar Rapids, 106 la. 476, 76 N. W. Rep. 729, (1898); Petition of Syracuse Ry. Co., 33 Misc. Rep. (N. Y.) 510, 68 N. Y. Supp. 881, (1900) ; Montgomery Amusement Co. v. Montgomery Trac. Co., 139 Fed. Rep. 353, (1905). But see Penna. R. R. Co. v. Mont- gomery Ry. Co., 167 Pa. St. 62, 31 Atl. Rep. 468, (1895). In this case a suit In equity was brought to restrain a railway incorporated under the street railway Incorpora- tion law (act of May 14, 1889, P. L. 211) from constructing Its lln« on a township road. It was held that the act does not contemplate or provide for the construction of long lines of transportation connecting widely separated cities and towns by electric railways traversing 702 TEE LAW OT STEEET EAILWATS. [§ 433. it has been held that an interurban company must construct its tracks in the highways and cannot exercise the power of eminent domain to locate them on private rights of way, except where the conformation of the surface or the location of streams makes it necessary in order to avoid inconvenience or danger to the traveling public.^' In a number of the states, however, general incorporation laws have been passed providing specifically for the incorporation and regulation of interurban railways." It has been held that a corporation empowered to construct, equip and operate a street and interurban railway is none the less a railway corporation because it is authorized also to promote plans for the creation and distribution of electricity and other heat, light and power. 18 § 434. The franchise — consents of pnblic authorities ^A rail- road corporation derives its franchise from the legislature, but nearly every state requires the consent of local authorities and abutting owners before the company can exercise its franchise country roads. See also Gettysburg B. Assn. V. Gettysburg Ry. Co., 2 Pa. Dist. Rep. 659, (1893); Eastern Ry. Co.'s Petition, 15 Pa. Dist. Rep. 960, and 16 Pa. Dist Rep. 667, (1906). "'Harvey v. Aurora Ry. Co., 174 111. 295, 307, 51 N. E. Rep. 163, (1898); Penna. R. R. Co. v. Greens- burg Ry. Co., 176 Pa. St. 559, 35 All. Rep. 122, 36 L. R. A. 839, (1896); Rahn Township v. Tamaqua Ry. Co., 167 Pa. St. 84, 31 Atl. Rep. 472, (1895) ; Hartshorn v. Illinois Valley Trac. Co., 210 111. 609, 71 N. E. Rep. 612, (1904), in which Chief Justice Ricks said: "If the country dis- tricts are so sparsely settled that the trafllc along them will not sup- port such roads following them, then their construction Is not a public necessity and the power of eminent domain, upon the theory that they are to exercise a public function, cannot be called Into action In their behalf. If they seek to travel across the country as do steam roads, disregarding highways and disregarding the interests and conveniences of the country people, let them organize under the law regulating steam railroads and be subject to the regulations of the statute and the burdens cast upon such railroads. On the other hand, if they wish to avoid these burdens and to avail themselves of the greater freedom and the right to burden the highways, then they must be willing to observe and per- form the duties that they owe to the public as such." "Cedar Rapids Ry. Co. v. Cum- mins, 125 la. 430, 101 N. W. Rep. 176, (1904); Waterloo Trans. Co. v. Supervisors,- 131 la. 237, 108 N. W. Rep. 316, (1906); Rlggs v. St. Fran- cols Ry. Co., 120 Mo. App. 335, 96 S. W. Rep. 707. (1906). " Cook Inv. Co. V. Evansvllle Ter- minal Ry. Co., 93 N. E. Rep. 279, (Ind. 1910). § 434.J INTEEUEBAK EAILWAY8. 703 and construct and operate its road upon tlie streets or highways.^® In the country districts the local authorities whose consent is necessary are those which have control over the highways in the counties, townships, boroughs or villages.*" Unless prevented by '•See chapter I, sees. 18-30, ante. See also Farmer v. Myles, 106 La. Aan. 333, 30 So. Rep. 858. 23 A. & Eng. R. Cas. (N. S.) 732, (1901); Norfolk Ry. Co. v. Consol. Turnpike Co., 100 Va. 243, 40 S. B. Rep. 897, (1902). "Mercer Trac. Co. v. United Ry. Co., 68 N. J. Eq. 715, 61 Atl. Rep. 461, (1905); Mercer Trac. Co. v. United Ry. Co., 64 N. J. Eq. 588, 54 Atl. Rep. 819, (1903); West Jersey Trac. Co. v. Camden Ry. Co., 53 N. J. Eq. 163, 35 Atl. Rep. 49, (1895); Newport Neiws Ry. Co. v. Hampton Roads Ry. Co., 102 Va. 795, 47 S. E. Rep. 839, (1904) ; De- troit Cits. Ry. Co. V. Detroit, 124 Mich. 449, 83 N. W. Rep. 104, (1900); Petition of Syracuse Ry. Co., 33 Misc. Rep. (N. Y.) 510, 68 N. Y. Supp. 881, (1900) ; Skelly v. MontvlUe Ry. Co., 67 Conn. 261, 34 Atl. Rep. 1040, (1896); Hartshorn V. Illinois Valley Trac. Co., 210 111. 609, 71 N. E. Rep. 612, (1904) ; Grey V. New York Trac. Co., 56 N. J. Eq. 463, 40 Atl. Rep. 21, (1898) ; Bergen Trac. Co. v. Rldgefield, 32 Atl. Rep. 754, (1895); In re Rochester Elec. Co., 123 N. Y. 351, 25 N. E. Rep. 381, (1890); Citizens' Elec. Co. v. Richland, 56 Ohio St. 1, 46 N. E. Rep. 60, (1897). In North Bend v. Electric St. Ry. Co., 25 Ohio C. C. 268, (1903), it was decided that the ownership hy a railway company of the land ahutting on hoth sides of a street does not divest the trustees of a hamlet of control over the entire street. In Galveston Ry. Co. v. Hous- ton Elec. Co., 122 ^. W. Rep. 287, (Tex. 1909), It was said by Fly, J.: "In sec. 7, art. 10, of the state con- stitution (of Texas), It is provided: 'No law shall be passed by the legis- lature granting the right to con- struct and operate a street railroad within any city, town or village, or upon any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad.' The section is merely prohibitory and does not directly grant any authority for the erection of rail- ways along streets or public high- ways, but by implication recognizes the right to build along such thor- oughfares, if the consent of those to whom the supervision and con- trol of the streets and public high- ways are confided is obtained. . . . If the public roads of a county are comprised within the term 'public highways,' the author- ity to build street railroads upon such public roads is recognized to rest in the 'local authorities.' The words 'public highways' are clearly used to describe some public thor- oughfare different from a street in a city, town or village, and cannot be construed to mean streets; nor can they be held, with any degree of reason or force, to apply to streets in an unincorporated town or village as contradistinguished from the streets in an incorporated city, town or village. . . . The term 'local authorities,' used in the constitution, is defined as . . . 'those ofllcers on whom the admin- istration of the government of the particular political subdivision of the state, by virtue of their office, devolves. In relation to the subject- 704 THE LAW O]? STEEET EAILWAYS. [§ 434. the constitution, the legislature may limit and restrict the power of local authorities to regulate the use of public highways. A.ceordingly a statute which authorized an interurban railway company to occupy the public highway for the transportation of passengers and property and regulated the mode of transportation and fixed the compensation to be paid therefor, was held not to be objectionable on the gTound that it authorized the railway company to use the streets of the city without its consent.^^ § 435. Consents of public authorities further considered It has been held in New York that the consent of a board of highway commissioners to the construction of a railway is not a grant of a right, title and interest in the land, but a mere condi- tion precedent to the right to build a railway, and that such con- sent is not void although the route was projected over private property in which the public had not yet acquired any right. ^^ In Pennsylvania it has been decided that, where a traction com- pany is chartered to construct and operate its line through several municipalities, boroughs and townships, it has no right to lay its tracks within the limits of either of the localities until the consent of all has been obtained.^' So it has been held that the matter of the legislative provision. See also In re Rochester Elec. In Texas the commissioners' court Ry. Co., 123 N. Y. 351, 25 N. E. Rep. is created by the constitution, and 381, (1890), holding that the con- it is given 'such powers and juris- sent of abutting owners and local diction over all county business, as authorities, as prescribed by the Is conferred by this constitution. New York statutes, are conditions and the laws of this state, or as precedent to the maintenance of a may be hereafter prescribed.' Under proceeding taken by a traction that authority the legislature has company for the appointment of conferred upon commissioners' commissioners to determine the courts the power 'to lay out and mode in which its road shall cross establish, change, and discontinue a line of an existing steam rOad public roads and highways,' and 'to and the amount of compensation exercise general control and super- to be paid therefor. Intendence over all roads, high- "Roberts v. Terre Haute Blec. ways, ferries and bridges in their Co., 37 Ind. App. 664, 76 N. B. Rep. counties.' Commissioners' courts 323, (1905). are therefore the 'local authorities,' " "Westminster Heights Ry. Co. within the purview of the constitu- v. Coler, 121 App. Blv. (N. Y.) 293, tion, from whom permission to 105 N. Y. Supp. 887, (reversed on build a street railway along the other grounds In 189 N. Y. 554, 82 public highways of a county must N. B. Rep. 1132), (1907). be obtained." =» Rahn Township v. Tamaqua Ry. §435.] INTEKUBBAN KAILWAYS. 705 consent of a board of commissioners of the county to the operation of a street railway on and over a state road in the county does not confer authority upon the railway company to construct and operate its railway on and over that portion of the highway which lies within the limits of a town, without the consent of the authorities which control its streets,^* and that the consent of a municipality to operate a street railway over its streets does not authorize the use of the streets for an interurban railway busi- A street railway company operating in a city can acquire ness.' Co., 167 Pa. St. 84, 31 Atl. Rep. 472, (1895) ; Penna. R. R. Co. v. Turtle Creek Valley Ry. Co., 179 Pa. St. 584, 36 Atl. Rep. 384, (1897); Penna. R. R. Go. V. Montgomery Ry. Co., 167 Pa. St. 62, 31 Atl. Rep. 468, (1895) . But It was decided in Geneva Ry. Co. v. New York Central R. R., 163 N. Y. 228, 57 N. E. Rep. 498, (1900), that where a traction railway com- pany, whose line runs through a town and two separately consti- tuted villages, obtains the consent of the highway commissioners of the town to the construction of its road on the town highway across the tracks of a railroad, such con- sent is sufBcient therefor, and the failure to obtain the consent of the local authorities of the villages is immaterial, as they have no con- trol outside of their respective jurisdictions. "Wheeling Ry. Co. v. Trladel- phia, 58 W. Va. 487, 52 S. B. Rep. 499, 4 L. R. A. (N. S.) 321, (1905). The constitution of West Virginia withholds from the legislature power to grant the right to con- struct a street railway within any city or incorporated village without the consent of its authorities. But in Ohio, where the Rev. Stat. (sec. 1651), gave to the trus- tees of hamlets the exclusive juris- 45 diction over public roads within the limits of the corporation, and the trustees of a hamlet gave a fran- chise to an interurban street rail- way company to lay its tracks on one of the streets of the hamlet which was also a state road, it was held that the county commissioners could not maintain an action to enjoin the use of the street by such street railway company. County Commissioners v. A. B. & C. R. A. Co., 21 Ohio C. C. 769, (1896). The statutes of Michigan, author- izing the construction of street rail- ways over the streets and highways of any township upon such terms and conditions as may be agreed upon by a company and the town- ship board, are broad enough to in- clude state and territorial roads, and it is unnecessary to obtain the consent of the highway commis- sioner of the state to the construc- tion of a street railway over such roads. Smith v. Jackson Trac. Co., 137 Mich. 20, 100 N. W. Rep. 121, (1904). "In re Plowright, 140 Wis. 512, (1909). So it has been held that a street railway corporation which has been chartered to carry passengers and property cannot enforce its charter right to carry either mail or ex- 706 THE LAW OF STREET RAILWAYS. [§ 435. the right to extend its line into the country only by the consent of the authorities having control of the highways therein.^® Where the consent of a turnpike company, which has acquired the use and control of a town highway for its purposes, has been obtained by a railway company, the latter must obtain the consent also of the highway commissioners of the town who have general control over the turnpike as a highway so far as its exercise is required for the preservation of the rights and interests of the public. ^^ An interurban railway company which is authorized by statute to construct its line upon any public road or highway extending from a city into a county, may select any route which is included within the terms of the statute, but, when the selec- tion has been once made and the road constructed, the right of press within a city which has con- sented only to its carrying passen- gers therein. St. Louis R. Co. v. Kirl£wood, 159 Mo. 239, 60 S. W. Rep. 110, 53 L. R. A. 303, (1900). It was decided in Petition of Syracuse Ry. Co., 33 Misc. Rep. (N. y.) 510, (1900), under the provision of the New York consti- tution, that no law shall authorize the construction and operation of a street railway except upon the con- dition that the consent of the owners of one-half in value of the property bounded on, and the con- sent also of local authorities hav- ing control of, that portion of the street or highway upon which it is proposed to construct or operate such a road, he first obtained, that a street railway which crosses a highway is constructed upon said highway within the meaning of the above provision of the statute, and that the consent of the authorities must be obtained. The consent of local authorities is in the nature of a license, and when the authority of a licensee is questioned the burden is on the company to establish it. Swinhart V. St. Louis Ry. Co;, 207 Mo. 423, 105 S. W. Rep. 1043, (1907). "'Citizens Elec. Ry. Co. v. Com- missioners, 56 Ohio St. 1, 46 N. E. Rep. 60, (1897). It was decided in County Com- missioners V. Citizens Electric Ry. Lt. & Power Co., 9 Ohio C. C. 183, (1895), that an ordinance passed by the council of a municipal corpora- tion, under authority of section 3438, Rev. Stat., authorizing a street rail- way company to extend its line be- yond the limits of the corporation, and along a state road, is no de- fense to an action by the county commissioners against the com- pany, to recover damages for the injury to the road occasioned by the construction of such extended line. The ordinance passed by the council only permitted the company to extend its railway beyond the limits of the corporation; the con- trol of the county commissioners over the state road was not affected thereby, nor the property rights of abutting land owners extinguished. "In re Rochester Elec. Ry. Co., 123 N. Y. 351, 25 N. E. Rep. 381, (1890). See Norfolk Ry. Co. v. § 435.] INTEEUEBAN RAILWAYS. 707 choice has been exhausted.^* In Missouri it has been decided that an interurban railway is not required to first procure the con- sent of the municipality to the use of its streets, as a prerequisite to its legal right to condemn private property for railway purposes. Consolidated Turnpike Co., 100 Va. 243, 40 S. E. Rep. 897, (1902). ''West Jersey Trac. Co. v. Cam- den Ry. Co., 53 N. J. Bq. 163, 55 Atl. Rep. 49, (1895). It was decided in this case, also, that a special act which authorized the Camden Horse Railroad Company to build a rail- road or railroads on "any public road or highway extending from the city of Camden into the county of Camden" did not empower the company to build a railroad upon a public highway, no part of which touches the city of Camden; but did empower it to build more rail- roads than one upon the highways mentioned in the act. See also Central Ry. Co.'s Appeal, 67 Conn. 197, 35 Atl. Rep. 32, (1895). But see Thomas v. Milledgeville Ry. Co., 99 Ga. 714, 27 S. E. Rep. 756, (1896). ■^ State V. Williams, 227 Mo. 32, 127 S. W. Rep. 52, (1910). The court held by a majority of three to two that the authority of an Interurban railway to condemn pri- vate lands being derived from the state statutes of Kentucky (article 2, chap. 12 R. S. 1899), the company need not first procure the consent of the city for the use of its streets, before condemning private property for its right of way. Judge Gantt wrote a strong dissenting opinion insisting that, as the constitution of the state (sec. 3, art. 12) pro- hibited the construction of a street railway without the consent of local authorities and as the interurban railway was operating a street rail- way within the municipality, al- though it was incorporated as a commercial railway, the consent of the local authorities must be first obtained. Requirements as to Consents. The statutes of New Jersey (act of April 6th, 1886, Gen. Stat., p. 3216) provide that an ordinance granting the consent of the town- ship commissioniers to the construc- tion and operation of a street rail- way shall be accepted in writing within thirty days after receiving notice thereof. The supreme court held that where an ordinance was passed granting a railway the right to construct and operate on certain streets and there was no accept- ance thereof, the ordinance was ultra vires and therefore the rail- way had no franchise and no rights in the streets which would prevent the township committee from grant- ing permission to another railway to operate its line in the same pub- lic street or road. Penna. R. R. Co. V. Hamilton Tp., 67 N. J. L. 477, 51 Atl. Rep. 926, (1902). In Tamaqua Ry. Co. v. Inter- County Ry. Co., 167 Pa. St. 91, 31 Atl. Rep. 473, (1895), it was held that the consent of a supervisor to the use of a township road by a street railway company is invalid where it appears that it was ex- torted from him by a threat to have him arrested for fraudulently giving his consent to another com- pany for a private compensation, followed by a promise to give him the same compensation. See also Lehigh Coal Co. v. Inter-County Ry. 708 THE LAW OP STREET RAILWAYS. [§ 436. § 436. Conditions attached by public authorities — Where it is necessary to obtain the consent of local authorities they may prescribe reasonable conditions upon which the streets may be occupied, and may add to the burdens imposed by the statutes or constitution of the state, unless such conditions be inconsistent therewith.^" So it has been held that where the municipality was empowered by its charter to prescribe the terms and conditions upon which a railway may use its streets, the municipal authorities Co., 167 Pa. St. 75, 31 Atl. Rep. 471, (1895). Where the consent of the town- ship commissioners is required, the individual consent of the majority of the members of the commission- ers does not authorize the railroad to construct its road. Grey v. New York Trac. Co., 56 N. J. Eq. 463, 40 Atl. Rep. 21, (1898). See also Ta- maqua Ry. Co. v. Inter-County Ry. Co., 167 Pa. St. 91, 31 Atl. Rep. 473, (1895); Penna. R. R. v. Mont- gomery Co., 167 Pa. St. 62, 31 Atl. Rep. 468, (1895). It was held in Pennsylvania R. R. V. Montgomery Pass. Co., 167 Pa. St. 62, 31 Atl. Rep. 468, (1895), that the consent of the supervisors of the township roads to a street rail- way company is invalid unless it is given at a regularly convened meet- ing of the supervisors, and the pro- ceedings must he entered in the township books kept by the town clerk. But see Nearihg v. Toledo Ry. Co., 9 Ohio C. C. 596, (1893). The consent to he valid must be given to a duly authorized corpora- tion. Homestead hy. Co. v. Pitts- burg Ry. Co., 166 Pa. St. 162, 30 Atl. Rep. 950, (1895). In Goddard V. Chicago Ry. Co., 202 111. 362, 66 N. E. Rep. 1066, (1903), it was de- cided that under the Illinois stat- utes (laws of 1899, page 331) authorizing the county boards to grant street railway privileges over highways, outside of the corpora- tion limits of cities, towns and vil- lages, to incorporated companies does not authorize consent to in- dividuals or partnerships. But it was held in Geneva & W. Ry. Co. V. New York Central & H. R. R. Co., 163 N. Y. 228, 57 N. B. Rep. 498, (1900), that consents given by abutting owners to the promoters, running to their legal representa- tives and assigns and by the pro- moters assigned to a street railway company after it is incorporated, are valid in the hands of the latter, and cannot be attacked by a steam railroad company, in order to pre- vent a crossing. Damages may be recovered by the local authorities for the con- struction of a traction railway over a country road without their con- sent. Citizens Ry. Co. v. Commis- sioners, 56 Ohio St. 1, 46 N. B. Rep. 60, (1897). 30 See chapter I, sees. 29 and 30, ante. Hyde Park v. Old Colony Ry. Co., 188 Mass. 180, 74 N. E. Rep. 352. (1905); Minersville Boro v. Schuyl- kill Blec. Ry. Co., 205 Pa. St. 39*. 54 Atl. Rep. 1050, (1903). In Plym- outh Township v. Chestnut Hill Ry., 168 Pa. St. 181, 32 Atl. Rep. 19, (1895), It was held that the right of local authorities to give their consent or refusal to a street rail- way company to construct its road is derived from the constitu- tion and the railway company must §436.J INTEEUEBAN RAILWAYS. 709 may impose such reasonable conditions as they deem proper upon an interurban railway passing through the municipality.^^ The grant to a company by the board of supervisors of a county, of the right to construct a double line of tracks along a certain road in the county, was held not to grant a franchise which could not be changed by the council of a town which was subsequently incorporated and included the road within its borders, provided that such alteration be reasonable.*^ Conditions ia the franchise are blading upon the company and will be enforced by the courts.** Conditions have been held reasonable and valid which required the road to be completed within two years after the consent of local authorities had been obtained;** that the company take such consent upon sucli con- ditions as the local authorities may impose or not at all. '^Mordhurst v. Fort Wayne Ry. Co., 163 Ind. 268, 71 N. B. Rep. 642, 66 L. R. A. 105, (1904); Little Rock Ry. Co. V. North Little Rock, 76 Ark. 48, 88 S. W. Rep. 826, 1026, (1905). °^ Newport News Ry. Co. v. Hamp- ton Roads Ry. Co., 102 Va. 795, 47 S. E. Rep. 839, (1904). It was also decided in this case that such a grant by the board of supervisors does not confer upon the company the exclusive right to use and oc- cupy such street with its railway, and the council of the town may grant to another railway company the right to use and occupy the street with its tracks. ^ Grosse Pointe v. Detroit Ry. Co., 130 Mich. 363, 90 N. W. Rep. 421, (1902), in which it was held that conditions in the franchise are as binding upon the company as if im- posed by statute and that manda- mus is the proper remedy to com- pel compliance therewith. See also Lansing v. Lansing Ry. Co., 109 Mich. 123, 66 N. W. Rep. 951, (1896). In Asbury Trac. Ry. Co. v. Town- ship Committee, 73 N. J. Bq. 323, 67 Atl. Rep. 790, (1902), the township granted the railway com- pany permission to lay its tracks on condition that it pay annually five per cent, of its gross receipts to the township. The company ac- cepted the ordinance and laid its tracks. Subsequently the township undertook to repeal the ordinance and to remove the company's tracks on the ground that it had failed to perform the conditions of the ordi- nance. It was held that the town- ship could be enjoined from inter- fering with the right of the railway under the ordinance on the condi- tion that the railway account to the township for the compensation provided for therein. The court said: "The relation between the street railway and the township is one of contract, and by virtue of the contract and the expenditures of money in pursualnce of these terms the street railway company has obtained a vested right which Is cotemporaneous with the rights given to it by the legislature and by the ordinance." =^ Plymouth Township v. Chestnut Hill Ry. Co., 168 Pa. St. 181, 32 Atl. Rep. 19, (1895). In this case it was decided that the provision in the 710 THE LAW OF STREET EAILWAYS. [§436. agree to transfer passengers for a single fare between certain points and issue transfers to connecting lines ;*^ that family tickets shall be sold at specified commutation rates ; that all passenger cars shall be of modern design and supplied with suit- able appliances for a suburban railway insuring the comfort, con- venience and safety of its passengers;^' that the railway company maintain electric lights at night along its lines while engaged in running cars, and that it should run cars at certain specified times in order to make convenient connections at the termini of the railroad with another car or another line.*'' The local au- thorities cannot, however, impose conditions beyond the limits of their authority.^^ § 437. Transfers. — A condition, imposed by local authorities upon the enjoyment of an interurban railway franchise, requiring the company to transport passengers at a certain . fare between points named in the ordinance of consent and to issue free trans- fers to any of its connecting lines, has been held to be reasonable and proper.*® And it may be provided by statute or ordinance that interurban railway companies shall issue and accept free transfers upon any of their cars at any point upon their lines within the city, as a condition of a traffic agreement between them act of May 14, 1889, that the com- N. W. Rep. 258, (1906). In this pany shall complete its road within case the court held that the failure two years after receiving the con- to supply toilet rooms and water sent of local authorities, unless the tanks was a violation of the com- time shall he extended by such pany's franchise, authorities, does ndt prevent the " Grosse Polnte v. Detroit Ry. authorities from making it a condi- Co., 130 Mich. 363, 90 N. W. Rep. tion of their consent that the rail- 421, (1902); Ottawa v. Ohio Elec. way shall be completed within a Ry. Co., 13 Ohio C. C. (N. S.) 561, time less than two years. (1910). =^ Gaedeke v. Staten Island Ry. " Freud v. Detroit, 133 Mich. 413, Co., 43 App. Div. (N. Y.) 514, 60 99 N. W. Rep. 559, (1903); People N. Y. Supp. 598, (1899). v. Kennedy, 97 N. Y. (App. Div.) For regulation of fares, see West 103, 89 N. Y. Supp. 606, (1904). Bloomfield v. Detroit Ry. Co., 146 '"Gaedeke v. Staten Island Ry. Mich. 198, 109 N. W. Rep. 258, Co., 43 App. Div. (N. Y.) 514, 60 (1906). N. Y. Supp. 598, (1899); Reynolds v. »" West Bloomfield v. Detroit Pacific Ry. Co., 146 Cal. 261, 80 Pac. United Ry. Co., 146 Mich. 198, 109 Rep. 77, (1905). § 437.] INTEEUEBAN EAILWATS. 711 and street railway companies over whose tracks they may operate within the municipal limits.*" Construing an Ohio statute, which authorizes traffic agreements and provides that the fare charged by street railway companies for transporting passengers within the municipal corporation shall not be greater than that fixed in the franchise under which the street railway was operated, the court held this provision to be a limitation upon the fare the interurban company may charge for the service it is authorized to render within the municipality and not a requirement that it shall provide or receive free transfers.*"^ " Indiana Ry. Co. v. Hoffman, 161 Ind. 593, 69 N. E. Rep. 399, (1904). It was held that where an inter- urban railway is required to issue and accept free transfers upon any of its lines within a city it is hound to carry a passenger, who tenders such transfer, to his destination on the company's line although it he in territory annexed to the city after the contract was made and on its interurban line on which it had a franchise to charge an additional fare outside of the city limits before the annexation of the territory. *" Interurban Ry. Co. v. Cincinnati, 75 Ohio St. 196, 79 N. B. Rep. 240, (1906). The statute referred to is Act of May 17, 1894 (91 Ohio Laws, p. 379). In this case there were traffic agreements between two rail- way companies, of which the de- fendant company was a consolida- tion,- and the Cincinnati Traction Company, lessee of the Cincinnati Street Railway Company, which was a consolidation of a number of companies by virtue of an ordi- nance of the city which imposed a condition that the company must give its passengers, who had paid fare at the cash rates, transfers to its various routes. The traflBc agree- ments were made prior to the con- solidation which formed the defend- ant company. The city of Cin- cinnati commenced an action to compel the giving and acceptance of transfers by the defendant com- pany. The court held that the above ordinance was not binding upon the defendant company; that the Act of May 17, 1894, as stated in the text, limited the fare that the interurban railway could charge within the city, but did not require it to provide or pay for additional transportation; and Interpreted the Act of May 21, 1894, sec. 4 (91 Ohio Laws, p. 285), which provides that an interurban railway company may lease, purchase or make traffic arrangements with a municipal street railway as to so much of its tracks as may be necessary or desirable to enable them to enter any city or village upon the terms and conditions applicable to street railways, as follows: "This section provides that the agreement may be made upon the same terms and conditions appli- cable to other street railroads. Not upon the terms and conditions of the grant to the company owning the tracks, but upon the terms and conditions applicable to street rail- ways generally." The court also said: "At the time of the enact- ment of section 4, in 1894, the con- 712 THE LAW OF STEEET EAILWAYS. [§ 438. § 438. Consents of abutting owners, — The general rules applicable to the rights of the owners of lands abutting on street railways apply also to the owners of lands abutting on interurban railways outside of the limits of municipalities, unless a distinc- tion is made by some constitutional provision or statutory enact- ment, or by differences in the modes of construction and opera- tion.*^ The consents of abutting owners have been held not to be property rights which can be appropriated under the power of eminent domain, but rights in their nature personal to each owner and conferred by law as a check upon the power of local authorities to authorize traction railways to be constructed and operated in the highways against the wishes of the owners of the lots abutting thereon.*^ Where an interurban railway company, which is authorized to construct its line partly within a municipal corporation and partly beyond its limits, obtains the consent of the municipality to the use of a portion of a street railway com- pany's tracks already constructed upon the streets of the city Avith the consent of abutting owners, the interurban company need struction of interurban roads was in its inception. Since then the business has developed wonderfully. Millions of dollars have been and are being invested, and these roads are relieving the congested condi- tion of the cities and working im- portant changes in the mode of life. That the legislature recognized In them a public benefit and purposed to encourage their construction is evidenced by the statute, and a con- struction that manifestly will tend to defeat that purpose ought not to be given to the statute unless plainly required. It is averred in the answer of the interurban roads, and judicial notice might be taken that such would be the fact, that 'the enforcement of a transfer sys- tem within the limits of Cincinnati, between the cars of the Cincinnati Traction Company and these de- fendants, would result in filling the cars of these defendants with urban and municipal passengers of the city of Cincinnati, to the exclusion of the interurban passengers going be- yond Cincinnati, and would require these defendants, which were or- ganized for the purpose of furnish- ing interurban transportation facili- ties, to forego said purpose and en- gage almost exclusively in municipal and urban business in the city of Cincinnati.' " •^ See chapter I, sees. 18-27, ante, Written consent by abutting own- ers Is required by the street rail- road act of 1896, before the township can pass an ordinance authorizing the construction and operation of the railway. Mercer Trac. Co. v. United Ry. Co., 68 N. J. Eq. 715, 61 Atl. Rep. 461, (1905). *" Hamilton Trac. Co. v. Parish, 67 Ohio St. 181, 65 N. E. Rep. 1011, 60 L, R. A. 531, (1902). §439.] INTEEUEBAN EAILWATS. TIS not obtain the consent of the abutting proprietors to use the exist- ing tracks, and the placing of trolley or feed wires at certain cross- ings not in front of the abutting property owner does not impose a burden which requires additional consents.** The owners of abutting lots may give or withhold their consents upon such terms as they may deem proper and it is held not to be against public policy to give such consent for a valuable consideration.*' § 439. Forfeiture — collateral attack — Forfeiture for non-per- formance of the conditions of consents will not be declared unless it is clearly expressed in the ordinance or necessarily implied by its terms.*' If, however, the ordinance provides for a for- feiture or penalty for a non-compliance with conditions speci- fied in it and the company fails to perform certain of the conditions, the substantial performance of the contract as a whole does not constitute a defense in a proceeding for a forfeiture; therefore it has been held that a franchise to operate a traction railway upon a highway may be forfeited for failure to lay planks of prescribed dimensions along its tracks in front of improved property.*'' But it has been held that if, not^vithstanding the " State V. Cincinnati Ry. Co., 19 tliat where a turnpike company is Ohio C. C. 79, (1899). authorized by statute to purchase •^ Hamilton Trac. Co. v. Parish, the property and franchises of a 67 Ohio St. 181, 65 N. B. Rep. 1011, passenger railway company, and is 60 L. R. A. 531, (1902). In Wallace invested with the privileges of that V. Ann Arbor Ry. Co., 121 Mich. company, but with power to remove 588, 80 N. W. Rep. 572, (1899), the the tracks, the turnpike company owner of an adjoining farm was may, after the expiration of 27 given a pass by a traction company years, rebuild and operate the rail- in consideration for giving the right way, and that the removal of the of way. Subsequently that com- tracks raised no implication of pany transferred its franchises to abandonment of the franchise, the defendant company. It was ■"Wheeling Ry. Co. v. Triadel- held that such an agreement does phia, 58 W. Va. 487, 52 S. B. Rep. not run with the land, and is not 499, 4 L.. R. A. (N. S.) 321, (1905). binding upon the purchasing com- See also Stewart v. Ashtabula, 98 Rany in absence of a statute or con- Fed. Rep. 516, (1899) ; In re Brook- tract making it liable. lyn, I. C. & S. Ry. Co., 94 N. Y. " See chapter II, sees. 45-50, ante. Supp. 113, 77 N. E. Rep. 994, In Hinchman v. PMla. & West (1906); Millcreek Township v. Erie Chester Ry. Co., 160 Pa. St. 150, 28 Ry. Co., 209 Pa. St. 300, 58 Atl, Atl, Rep 652, (1894), it was held Rep. 613, (1904). 714 THE LAW OF STEEET EAILWATS. [§.439. fact that the company has expended large sums of money and exercised due diligence in constructing and operating its road so as to comply with the ordinance, unforeseen circumstances have caused a breach of certain conditions thereof, equity will restrain the enforcement of an ordinance or resolution declaring such a forfeiture,*^ and it has been decided also that a right of forfeiture of a franchise, incurred by the failure of the company to complete its road within a certain time, may be waived by the public authorities, that the waiver of such forfeiture is not the granting of a new right, and that such failure cannot be taken advantage of in a private action, but can be enforced only on behalf of the public at the election of the state.*® If, however, a company has forfeited its corporate rights and powers by failure to perform a condition of its grant, the fact may be asserted by any owner whose lands or property the company seeks to appropriate under the laws authorizing the taking of private property foj public use.^" It is a general principle that a corporate franchise cannot be collaterally attacked, and so it has been held that the right of an interurban company to carry freight without the consent of municipal authorities cannot be questioned in an action for " North Jersey Ry. Co. v. So. ify the proceeding as it would have Orange, 68 N. J. Bq. 83, 43 Atl. to interfere in a proceeding in a Rep. 53, (1899). In this case the court of law. ordinance provided that cars should -A- forfeiture must be judicially be running at a certain headway on determined. Jersey City Ry. Co. v. continuous double tracks within a Passaic, 68 N. J. L. 110, 52 Atl. Rep. specified time, and the company ^42, (1902); Knickerbocker Trust was unavoidably prevented from ^^; v. ^Kalamazoo, 182 Fed. Rep. performing the condition within the time specified. The court held that though a township ordinance grant- ing powers and franchises to a rail- 865, (1910). " Newport News Ry. Co. v. Hamp- ton Roads Ry. Co., 102 Va. 795, 47 S. E. Rep. 839, (1904). "In the matter of Brooklyn Ry. way corporation provides that the ^0., 72 N. Y. 245, (1878). But see township may adjudge the breach gt^tg ^ Williams, 227 Mo. 32, 127 of duties and obligations and de- g w. Rep. 52, (1910), in which it Clare a forfeiture, an order passed ^^s held that the right of a prop- pursuant thereto declaring a for- erly organized interurban railway feiture and decreeing a sale of the to operate on the streets of the city corporation property is judicial in or to carry freight cannot be con- Its character and equity has the sldered in condemnation proceed- same power to intervene and mod- ings. § 440.] INTEETJEBAN EAILWATS. 715 personal injuries,®^ or in a proceeding to condemn private property for its right of way.®^ § 440. Additional servitude — It is well settled by the weight of authority that a street railway is not an additional burden upon the streets of a municipality; on the other hand the ordinary commercial railroad is held to be an additional servitude.®^ But an entirely new question arose by reason of the extension of the electric street railway of the city into the country, its operation over the public highways and its final development into the modem interurban railway. There is much conflict of authority upon the question whether an interurban railway is an additional burden on the streets and highways over which it is constructed. The test which is generally accepted and is supported by reason and the greater weight of authority is found iu the principles applied in cases relating to, and distinguishing, street railways and commercial railroads, many of which were decided before the first interurban railway was constructed.®* A street railway ia the city is held not to be an additional burden on the ground that it is in furtherance of the uses for which the highway was originally intended, that is, tO' accommodate the local travel. It facilitates the use of the streets of a municipality, for while its cars temporarily occupy part of the street, they more than " Roberts v. Terre Haute Ry. Co., tion for damages for condemning a 37 Ind. App. 664, 76 N. E. Rep. 323, lot of ground in the city of St. (1905); Newport News Ry. Co. v. Louis, it was held that the question Hampton Roads Ry. Co., 102 Va. of its right to construct tracks and 795, 47 S. E. Rep. 839, (1904). operate its road for Interurban pur- See also Hine v. Bay Cities Con- poses and to carry freight in the sol. Ry. Co., 115 Mich. 204, 73 N. town will not be considered, and W. Rep. 116, (1897). In this case that the time to prevent such it was held that in an action to usurpation of power is when the recover damages for injuries in- company undertakes to do so. State flicted upon a child by an electric v. Williams, 227 Mo. 33, 127 S. W. car, the question as to the right of Rep. 52, (1910). the company to use such motive " See chapter IV and sec. 127, power and as to whether such op- ante. eration of cars was contrary to its " For a full discussion of the doc- franchise, could not be raised. trines on which the decisions are "' In a proceeding by an Interur- based see article In Univ. of Penna. ban railway to prohibit the commis- Law Review, Vol. 59, No. 3, Tien.. sioners from assessing compensa- 1910. 716 THE LAW 01? STEEET EAILWAYS. [§440. compensate for interfering with otlier forms of travel by relieving the sidewalks of foot-passengers and the roadway of other ve- hicles. It may, therefore, be said to be an aid to the easement of passage.®^ On the other hand a commercial railroad occupiesi all or a portion of the highway so as to continuously interfere with the travel of the public thereon, and does not materially aid local traffic nor relieve the highway. It has, therefore, been held to be an obstruction to the easement of passage and to impose a new burden upon the highway. The modern interurban road largely resembles a commercial railroad and in many cases has been held to be one where it is used to carry express, mail and freight, operates large cars at a high rate of speed, on tracks similar to those of steam railroads, and carries passengers for long distances mainly for through traffic from city to city, stop- ping between its termini only at designated points or stations for an occasional passenger. The primary object is not to accom- modate local traffic, and thereby serve the purpose for which public highways were originally dedicated. On the contrary, it burdens the highway with travel which would not otherwise be there.^® A railway so constructed and operated is essentially different in character and effect from a street railway, and the weight of authority sustains the doctrine that it is an additional servitude.^^ "' Goddard v. CMcago Ry. Co., 104 335, 96 S. W. Rep. 707, (1906) ; Die- Ill. App. 532, (1902). bold v. Kentucky Trac. Co., 117 Ky. ""Abbott V. Milwaukee Trac. Co., 146, 77 S. W. Rep. 674, (1903). 126 Wis. 634, 106 N. W. Rep 523, It was held in Rische v. Texas (1906); Goddard v. Chicago Ry. Trans. Co., 27 Tex. Civ. App. 33, 66 Co., 104 111. App. 532, (1902) ; Zehren S. W. Rep. 324, (1901), that the V. Milwaukee Ry. Co., 99 Wis. 83, difference between a street railway 74 N. W. Rep. 538, 41 L. R. A. 578, and commercial railway is in the (1898) ; West Jersey Ry. Co. v. rails, the construction of the track, Camden Ry. Co., 52 N. J. Eq. 31, the speed at which cars run, the 29 Atl. Rep. 423, (1893). noise and vibration produced, the "' Chicago Ry. Co. v. Milwaukee, danger to life, the size and weight Racine & K. Ry. Co., 95 Wis. 561, of the cars and locomotives, and 70 N. W. Rep. 679, 36 L. R. A. 856, especially the carrying of freight. (1897); Abbott V. Milwaukee Trac. The court said in Wilder v. Co., 126 Wis. 634, (1906); Schuster Aurora Trac. Co., 216 111. 493, V, Milwaukee Ry. Co., 142 Wis. 578, (1905): "Commercial railways em- 126 N. W. Rep. 26, (1910); Riggs v. brace all roads for general freight St. Francois Ry. Co., 120 Mo. App. and passenger traffic between one Ul.] INTEEUEBAN EAILWAYS. Ill § 441. Additional servitude further considered When a modem internrban railway is operated over the highways in the country districts it .has been almost universally held to be an additional burden thereon.^^ In the country its cars are operated principally for the carriage of through passengers from one city to another and only to a very limited extent for the accommoda- tion of local traffic."^ In fact, in ahuost every case where a trac- town and another or between one place and another." In this case an ordinance provided that the inter- urban railways should use the streets of the city for no other purpose than to transport passen- gers and freight, ordinary baggage, United States mail, express and milk. The court held that the fact that a road is limited to the car- riage of one kind of freight does not make it any the less a commer- cial railroad, which is defined to be one which carries both freight and passengers. But see White v. Blanchard, 178 Mass. 363, (1901), which decides that a freight horse railway con- structed by a quarry company, with the consent of the selectmen of a town, for the transportation of stone from the quarry to a steam railway about one mile distant, is not an additional servitude. In Zehren v. Milwaukee Ry. Co., 99 Wis. 83, 74 N. W. Rep. 538, (1898), the court held that an in- terurban railway operating upon "T" rails and carrying freight was a commercial railroad and differed from the ordinary commercial rail- road in degree only, not in char- acter. But see Michigan Central R. R. V. Hammond Elec. Ry. Co., 42 Ind. App. 66, (1908), deciding that the fact that a street railway carries mail and freight does not render it a commercial railroad, and Nie- man v. Detroit Ry. Co., 103 Mich, 256, 61 N. W. Rep. 518, (1894), hold- ing that the use of the "T" rail does not establish the commercial character of the road. In this case the rail was so laid as to conform as closely as possible to the grade of the road. In both of these cases the railway was held not to be an additional burden. See also Galveston Ry. Co. v, Houston Elec. Co., 122 S. W. Rep. 287, (Tex. 1909). " Goddard v. Chicago Ry. Co., 104 111. App. 533, (1902); Pennsylvania R. R. Co. V. Montgomery Ry. Co., 167 Pa. St. 62, (1895); Thompson v. Citfzens Trac. Co., 181 Pa. St. 131, 37 Atl. Rep. 205, (1897); Fidelity Trust Company v. Philadelphir Ry, Co., 6 Pa. Dist. Rep. 737, (1897); Miller v. Cincinnati Ry. Co., 43 Ind, App. 540, 88 N. B. Rep. 104, (1909) ; Schaaf v. Cleveland Ry. Co., 66 Ohio St. 215, 64 N. E. Rep. 145, (1902); Zehren v. Milwaukee Ry. Co., 99 Wis. 83, 74 N. W. Rep. 538, (1898) ; Chicago Ry. Co. v. Milwaukee Ry Co., 95 Wis. 561, 70 N. W. Rep. 679. (1897); Ecorse v. Jackson Ry. Co.. 153 Mich. 393, 117 N. W. Rep. 89 (1908); Riggs v. St. Francois Ry Co., 120 Mo. App. 335, 96 S. W. Rep 707, (1906); Diebold v. Kentucky Trac. Co., 117 Ky. 146, 77 S. W, Rep. 674, (1903). But see Nieman V. Detroit Ry. Co., 103 Mich. 256, 61 N. W. Rep. 518, (1894) ; Galves- ton Ry. Co. V. Houston Elec. Co., 122 S. W. Rep. 287, (Tex., 1909). "' The court said in Van Brunt v. 718 THE LAW OF STEEET RAILWAYS. [§ 441. tion railway operating over the country highway has been held not to be an additional burden, it was essentially a street railway, operated cars similar in construction to those used by street railways in municipalities, over tracks conforming to the surface of the highway and stopping at crossroads and at intermediate points for the accommodation of local traffic. In a number of cases the character of the road is not stated, but it is apparent from the context that in construction and operation it more nearly resembled au ordinary street railway than a modern interurban railway and operated its road over the highways for the local accommodation of passengers along its route. In fact, a number of the oases were decided before the interurban railway developed its modern commercial character.®" On the other hand, where a street car track is extended into the country, merely for the purpose of carrying passengers to and from Flatbush, 128 N. Y. 50, 27 N. E. Rep. 973, (1891): "In the ordinary country highways of the state the public simply have an easement in tne soil for traveling. * * * * The public easements, however, in the streets of cities and villages are more extensive. In urban streets the public convenience and health, and the general welfare re- quire that the soil thereof should be subjected to greater burdens. They may be used for the laying of water and gas pipes, and the con- struction of sewers, and some other purposes. The public generally have an interest in and are bene- fited by such improvements, and they are necessities of modern life." " Georgetown Trac. Co. v. Mul- hoUand, 76 S. W. Rep. 148, (1903); Ashland Ry. Co. v. Faulkner, 43 L. R. A. 554, 10 A. and E. R. Cas. (N. S.) 223, (1898); Southern Ry. Co. v. Atlanta Ry. Co., Ill Ga. 679, 35 S. E. Rep. 876, 51 L. R. A. 125, (1900); Paquet v. Mt. Tabor Ry. Co., 18 Ore. 233, 22 Pac. Rep. 906, (1889). In Ehret v. Camden Ry. Co., 61 N. J. Eq. 171, 47 Atl. Rep. 562, (1900), the court said: "Noth- ing in the bill intimates that the cars, or motive power, or speed, or tracts are to be different from other roads known under the name of trolley railways. So it must be assumed that the road is to be used as an ordinary street railroad, the motive power of which is electric- ity. The features of such a road are that its tracks are laid so as not to interfere with the use of the surface of the road by other vehi- cles; that its cars are of such size and run at such speed as not to in- terfere with other traffic; that such stops are made as will accommo- date those living along the line of the road. So used, I do not per- ceive the least difference in the adaptability of such a road to the uses of the highway, whether it be a country road or a municipal street. Its design is to serve the primary uses of the highway; namely, to enable the people to pass from one place to another." § 441.] INTEEUEBAN EAILWAYS. 719 the suburbs, it is not an additional burden.*^ Such a railway is suburban and not interurban. But it has been decided that even where an interurban railway is an additional burden on the highways in the country, it ceases to be so in the city, if its cars are there operated in the manner and for the purposes of ordinary street cars.®^ It hasi been held, however, that if a railway company is authorized to carry freight within a city, and its cars are used for the principal purpose of carrying through traffic to other cities or towns, it increases the burdens of the abutting proprietors of the cities or towns along its route by carrying over their streets passengers and property from other localities which would not otherwise be there.®^ The contrary, "Floyd V. Rome Ry. Co., 77 Ga. 614, 3 S. E. Rep. 3, (1886); Hum- phreys V. Ft. Smith Trac. C!o., 71 Ark. 152, 71 S. W. Rep. 662, (1903) ; Green v. City & Suburban Ry. Co., 78 Md. 294, 28 Atl. Rep. 626, (1894) ; Southern Ry. Co. ^. Atlanta Ry. Co., Ill Ga. 679. 36 S. B. Rep. 873, (1900). It was decided in Howe v. West End Ry. Co., 167 Mass. 46, 44 N. B. Rep. 386, (1896), that where a rail- road resembles a street railway in character of construction and is used for the transportation of per- sons from place to place under such regulations as to permit the streets to be used for travel and transporta- tion in the ordinary manner, it is not an additional servitude. But see Penna. R. R. Co. v. Greensburg Ry. Co., 176 Pa. St. 559, 35 AU. Rep. 122, (1896); Penna. R. R. Co. V. Montgomery Ry. Co., 167 Pa. St. 62, (1895). " Brickies v. Milwaukee Trac. Co., 134 Wis. 358, 14 L. R. A. (N. S.) 644, 114 N. W. Rep. 810, (1908). In this case it was decided, how- ever, that where an interurban road is operated over the street railway tracks of the city without acquir- ing the right by eminent domain, it is a trespasser and the abutting owners are entitled to damages for its maintenance and operation. See also Jeffers v. Annapolis, 107 Md. 268, 68 Atl. Rep. 361, (1907), holding that a road is none the less a street railway within a city be- cause when it leaves the city it be- comes an interurban railway, and that the use of the streets of the city by interurban railways does not impose a new servitude upon the streets so as to entitle the abutting owners to additional com- pensation. ""Younkin v. Milwaukee Trac. Co., 120 Wis. 477, 99 N. W. Rep. 215, (1904). Cassody, C. J., said: "The defendant claims the right to run its trains and cars from the city of Milwaukee directly through the city of Waukesha and to Wau- kesha Beach. In doing so it is con- ceded that, while such trains or cars are interurban, they do cast an additional burden on the lands of abutting owners, which entitles them to compensation; but it is claimed that the moment such trains or cars pass Into the city of Waukesha they cease to cast any such additional burden upon the lands of such abutting owners. And 720 THE LAW OK STKJSJiX KAILWAYS. 441. however, is held in several jurisdictions, upon the ground that such a railway relieves the highways by permitting, it^ passen- gers to enter and leave its cars in the heart of the city or at intersecting' streets, and allowing it to receive and discharge packages along the, line of travel. It is difficult to distinguish such a railway from a commercial railroad; the claim that there is no inherent difference between them is based on the assumption Co., 99 Wis. 83, 74 N. W. Rep. 538, 41 L. R. A. 575, (1898) ; Chicago Ry. Co. V. Milwaukee, 95 Wis. 561, 70 N. W. Rep. 678, 37 L. R. A. 856, (1897); Abbott v. Milwaukee Trac. Co., 126 Wis. 634, (1906) ; Schuster V. Milwaukee Ry. Co., 142 Wis. 578, 126 N. W. Rep. 26, (1910); Rische V. Texas Transportation Company, 27 Tex. Civ. App. 33, 66 S. W. Rep. 324, .(1901); Diebold v. Kentucky Trac. Co., 117 Ky. 148, 77 S. W. Rep. 674, (1903) ; Wilder v. Aurora Trac. Co., 216 111. 493, 75 N. E. Rep. 194, (1905). In a late case in New York a sub- way was held to be an additional burden. Matter of Joralemon Street Subway, 197 N. Y. 81, (1910). The court stated its conclusions as fol- lows: "The subway occupies a part of the street, which, although be- neath the surface, might, by proper construction and change of grade, be used for ordinary highway pur- poses and traveled upon freely, without license or recompense, by persons using their own vehicles or their own methods of transporta- tion. The occupation by the sub- way by its trains of cars Is exclu- sive, for no one may enter either without payment of fare. High- ways are free and open to all the people; the subway is not. High- ways are for the exclusive use of none; the subway Is for the exclu- sive use of one. Highways are for travel by means under the exclu- sive control of the traveler; the yet such trains or cars may be loaded with through passengers. The only difference is that while in the city of Waukesha such trains or cars, In obedience to require- ments, stop at street crossings, whereas in the country they only stop when convenient, or at points remote from each other. Counsel lor the defendant argues that as the trains or cars with passengers from Milwaukee might, at the city limits of Waukesha, change from such interurban cars to regular street cars, and then at the west- erly limits of the city again change into interurban cars, that, there- fore, it is substantially the same as though the interurban train or cars should continue with its passengers directly through the city; especially as the ordinance expressly author- ized the street railway to connect with the interurban railway. While such argument may be plausible, yet it is really begging the ques- tion. It might be argued on the same theory that a commercial rail- way passenger train, with the per- mission of the city, might be run over the street railway tracks with- out compensation to the abutting lot owners. We must hold that the running of such interurban trains and cars over the street railway tracks upon Lincoln avenue was an additional burden upon the lands of the plaintiffs as such abutting lot owners." See also Zehren v. Milwaukee Ry. §441.j IMTEKOBJiAS KAILWAYH. 72.1 that the advantages to the city and incidentally to all of its citizens derived from the increased traffic exceed the addi- tional burden imposed upon abutting owners.^* Whether an subway is for travel by means un- der the exclusive control of its owner or operator." "In Kinsey v. Union Trac. Co., 169 Ind. 563, 81 N. B. Rep. 922, (1907), the Supreme Court of In- diana by a divided court three to two decided that the operation of an interurban railway within a city over the tracks of a street railway company does not constitute an ad- ditional servitude upon the lands used for street purposes, although the railway was authorized to carry freight in the city and was operat- ing a street railway closely resem- bling a commercial railroad. It held, however, that the negligent operation, within the city limits, of interurban cars of excessive weight, size and number causing damage to the property of the abutting owners constitutes a cause of action for special damages. Gillett, J. (one of the majority), said, p. 622: "It Is also my opinion that the interurban car, which tends more than almost any other material Influence to make the resi- dents of country and city a homo- geneous people, is a proper vehicle on the city street. Public interests point to the fact that the inter- urban car should be recognized as a proper means of using the streets. To deny it the use of the public ways in large cities would be to take from the service a large part of its flexibility and facility. As a vehicle, the interurban car conduces to the advantage of the traveling public, by permitting pas- sengers to enter or leave the con- veyance in the heart of the city, or at intersecting streets, and, in the 46 transportation of property, it is thereby made possible to receive and discharge packages along the line of travel, and, at some points, to load and unload considerable quantities of freight at the mer- chant's door. It is a most im- portant fact that the interurban freight-car greatly relieves the con- gestion of busy streets, since it furnishes a more practical means of handling traflic that must neces- sarily be thereon. Between the shipper or the consignee of freight and the railroad terminal there is distance, and this implies traffic by wagon. It would involve a shame- ful economic waste, as well as a de- cided prejudice to the city, for a railroad company, of any kind, to condemn or acquire a private right of way to a central terminal, al- though it is evident that the loca- tion of a more remote terminal would involve a greater amount of teaming upon the streets. As the use of the interurban car is rea- sonably consistent with other street uses, it is practicable to use the public ways as a means whereby such cars may reach conveniently located terminals — in fact, it is the only means — and, figuring that the average haul would be' least from a station in the exact business cen- ter of the city, it would seem to be fair to assume that, as between such a location and one more re- mote, for every block that an inter- urban car, carrying the equivalent of twenty wagon loads of local freight, moves, it takes off of the streets the burden of twenty wagons traveling the same dis- tance. As this freight must be 722 THE LAW OF STREET EAILWAYS. [§ 441. interurban railway imposes an additional servitude depends upon upon the streets in any event, and as it may be moved thereon with perhaps not more than one-twen- tieth of the disturbance to the pub- lic that the required number of wagons would occasion, it is plain that, so far from such cars in- creasing the burden of the streets — regarded collectively — they could not, in the nature of things, handle enough freight, local or otherwise, to equal the burden of additional teaming which terminals compara- tively remote from the business center would occasion. It is there- fore plain that while the use of the streets by interurban cars creates additional traffic on some streets, yet it greatly relieves other streets. When once a reason, founded in the local public interest, is found for admitting the interurban freight- car to the use of a street in reach- ing its terminal, there is, within the authorities generally, no difficulty in affirming the right to burden other streets with such cars, for the advantage is local, and it is simply a question of the power to redistribute traffic, of the authority to burden some streets with addi- tional traffic to secure relief to con- gested streets in the central part of the city. As an abstract proposi- tion, no one would doubt the ex- istence of such a power, and I can perceive no objection to it in the concrete, since the use is not new, but is merely the ancient one of travel, by an improved means, con- sistent with general street uses. As has been frequently said, the ease- ment of travel upon an urban way is very comprehensive, and as long as the use is within the assumed purposes of the appropriation, and reasonably consistent with other street uses, I do not think that the abutter can In most circumstances have ground of complaint." Hadley, C. J. (In accord) said at p. 621: "It is, in substance, alleged that the appellees run over College avenue in front of appellant's house, cars, both passenger and freight, that are sixty feet in length, and often in trains of three cars each, or one hundred and eighty feet in all, at the rate of twenty or thirty miles an hour, by reason whereof the ground is made to vibrate and shake the house of appellant, situ- ated sixty feet from the track, so as to cause the plastering to break oft and fall, and her picture frames to fall from the walls and break; that the noise and vibration disturb her sleep, frighten horses hitched in front of her house and cause them to break away, and the street is rendered dangerous to all per- sons traveling thereon." "If the appellant can prove these averments she is entitled to re- cover, not because the right to op- erate interurban cars on College avenue imposed a new and addi- tional burden on her property, but because such cars have been oper- ated in front of her house In an injustifiable and unlawful manner." The minority opinion is very for- cibly expressed by Jordan, J., at p. 594. "Keeping in view the prin- ciples asserted by the authorities to which we have referred, we may next inquire, in the light of facts and the law applicable thereto, what is the character of the road or roads with which we have to deal in this appeal, and into what class are they placed under the facts as alleged in the complaint. Briefly summing up the facts, we have here presented a traction company with a thirty-year fran- § 441.] INTBEUEBAN RAILWAYS. 723 whether or not, in its construction and operation, it more nearly chise to run passenger-, baggage-, express- and freight-trains. There are no limits to the size of its cars or trains; no limit to the number of trains, nor the rate of speed at which they may be propelled. Tracks laid with 'T' rails as heavy and of the same pattern and shape as those of the ordinary railroad passenger-cars. The company is actually engaged in operating its electric cars and trains from the city of Marion to the city of In- dianapolis, a distance of eighty miles, and from the city of Muncie to Indianapolis, a distance of sixty miles, operating both freight and passenger-cars. The cars are sixty feet long, and carry 150 passengers. Twenty-eight regular passenger-cars or trains run daily in and out of the city of Indianapolis. Many cars and trains are used exclusively for haul- ing freight a distance of from ten to eighty miles, a greater part of which is hauled forty miles and over. Bight of the passenger-trains make but one stop between Indianapolis and Muncie, and stop only once between the limits of the city of Indianapolis and the terminal sta- tion, a distance of four miles, cross- ing more than fifty streets within the city of Indianapolis. Its through cars do not stop to take on passen- gers after leaving the terminal sta- tion. Its passenger-cars frequently run in trains of three cars, and it runs freight-cars consisting of three and more cars every day. Passen- ger-cars are provided with baggage compartments for trunks and ordi- nary baggage, water coolers and closets, and are twice the size of the cars run upon the street-car lines in Indianapolis. Outside of the city cars run from forty to sixty miles per hour, and within the city and over College avenue at a rate of twenty to thirty miles per hour. Outside of the city of Indian- apolis the road is not operated upon the public highway, but on a private right of way paralleling the Big Four Railroad to Marion and Muncie. It is not intended to, and does not, do a local business, but a through business in travel and freight. It charges a rate of fare forbidden to be charged by a street railroad in Indianapolis and refuses transfers, which the statute abso- lutely requires from a street rail- road operating in the city of Indian- apolis. It is extending and will complete lines to Chicago, Illinois, Columbus, Ohio, and Ft. Wayne, Indiana, and proposes to and will put on sleeping-cars to run on through cars and trains between the aforesaid cities and other points, thereby transporting all of its traffic over College avenue. It is not a street railroad, but a 'commercial railroad,' carrying persons and freight in competition with steam roads both for long and short dis- tances. It shakes the ground, etc., and has damaged plaintiff, as charged in the complaint, etc. "Certainly these facts show that there is a wide difference between the railway here involved and what the many authorities which we have cited recognize and regard as an urban or street railway. The funda- mental purpose of the road here in- volved appears not to be to accom- modate or subserve the travel upon the streets of the city of Indian- apolis, but, on the contrary, it is shown to be a thoroughfare between the latter city and other cities or points for the distance of many miles beyond. In its purposes, uses, equipments and mode of operation 724 THE LAW OF STREET RAILWAYS. [§ 441. resembles a street railway or a commercial railroad. The motive it is materially different from the ur jan or street railroad, except that it employs electricity as a motive power. It is shown frequently to run passenger-trains composed of three large cars, and to run daily freight-trains of a like number of Aeavy cars. It is neither a street railroad in fact, nor is it shown to be operated for street railroad pur- poses. Further to emphasize, we have, under the facts, a railroad which in no sense is operated to promote the utility of the public streets of the city of Indianapolis. It is not merely engaged in doing business between the latter city and its suburbs. It is not an extension of a city street railway over inter- vening territory between neighbor- ing cities or towns, carrying pas- sengers and light freight, but it is absolutely an independent railway, engaged in a general passenger and freight trafiic between distant cities and communities. Its cars are not light and small when compared with those of the ordinary steam roads. As a result of its operation some of the usual discomforts due to the operation of the ordinary steam roads are present, viz., loud noises, dirt and dust, shaking or vibrations of the ground, and other annoy- ances or detriments which affect the owners of abutting property sit- uated on the streets over which the road is operated. There is also the presence of danger or peril which continually menace the safety of persons using the public street. Possibly it may be said that a dif- ference in degree in respect to these matters exists. But the question presented Is not as to whether it constitutes a burden to the same degree as that imposed by a steam railroad, but is it a burden upon the public street in addition to that to which it was originally dedicated or appropriated? Surely, under the circumstances, this road, in its char- acter and operation, so nearly ap- proaches the ordinary steam com- mercial railroad that a dividing line between it and the latter cannot consistently with reason be drawn Consider the road and the system to which it belongs all In all, in our opinion it comes clearly within the class of commercial railways, which, as said in. 1 Lewis, Eminent Domain (2d ed.), § 111, 'embraces all railroads for general freight and passenger traffic between one town and another, or between one place and another.' If this character of a commercial road cannot be ac- cepted to test the question in regard to its being an additional servitude upon the fee of the public streets, when, then, and under what circum- stances, can the line of demarcation be drawn between roads which con- stitute a new use of the streets and an added burden thereon and those which do not? While it may be conceded that the use of the public streets by appellees for the opera- tion of their railways is quite a matter of economy in their favor, still such use, as shown in this case, is a diversion from and incompat- ible with the public use to which the streets were originally dedicated or appropriated, and is, therefore, an additional burden upon the fee of the abutting owner, for which the latter is entitled to compensation." See also Mordhurst v. Ft. Wayne Trac. Co., 163 Ind. 268, 71 N. E. Rep. 642, (1904); Newell v. Minneapolis, 35 Minn. 112, 27 N. W. Rep. 839, (1886); Michigan Cent. R. R. Co. v. Hammond Ry. Co., 42 Ind. App. 66, S3 N. E. Rep. 650, (1908); Mont- § 441.] TNTEKUBBAjX BAILWAVS. 17 .If power is not a controlliiig fact in determiimig this question-'"* In several states it is held to impose an additional servitude only when the abutter owns the fee to the street over which the road passes, subject to the public easement, and that where the title to the public streets and highways is vested in the public, the abutter has only, in addition to such public easement, the right of ingress and egress to and from his premises.®* So it was decided gomery v. Santa Ana Ry. Co., 104 Cal. 186, 37 Pac. Rep. 786, (1894) ; Kipp v.. Davis-Daly Copper Co., 41 Mont. 509, 110 Pac. Rep. 237, (1910). <» Wilder v. Aurora Trac. Co., 216 m. 493, 527, 75 N. B. Rep. 194, (1905); Chicago Ry. Co. v. Mil- waukee Ry. Co., 95 Wis. 561, 70 N. W. Rep. 678, 37 L. R. A. 856, (1897); Kinsey v. Union Trac. Co., 169 Ind. 563, 81 N. E. Rep. 922, (1907). A question has arisen in a num- ber of cases as to whether a power house or electric light system op- erated in conjunction with an inter- urban railway is an additional ser- vitude. It was held in Schaaf v. Cleveland Ry. Co., 66 Ohio St. 215, 64 N. E. Rep. 145, (1902), that the construction and operation of an electric plant in connection with an interurban railway for the supply- ing of power, heat and light con- stitutes an additional burden. In Goddard v. Chicago Ry. Co., 104 111. App. 533, (1902), it is held that a grant of authority to con- struct, maintain and operate for twenty years a system of poles and wires and any and all necessary and comvenient appliances upon the streets and roads and highways of the county for the convenience, dis- tribution and use of an electric cur- rent for the purpose of operating an interurhan railway and for the purpose of furnishing light, hM,t and power to the cities of the county, imposes a burden upon the owner of the fee in a county high- way and constitutes an additional servitude. But see Palmer v. Larch- mont Elec. Co., 158 N. Y. 231, (1899), deciding that the erection and main- tenance of poles and electric wires for the lighting of the highway is one of the burdens upon the fee which must be borne as an incident to the public right of traveling over the way and is deemed one of the uses for which land was taken as a public highway and Is not an addi- tional burden. "Chicago Ry. Co. v. Milwaukee Ry. Co., 95 Wis. 561, 70 N. W. Rep. G78, 37 L. R. A. 856, (1907) ; Schus- ter V. Milwaukee Ry. Co., 142 Wis. 578, 126 N. W. Rep. 26, (1910). See Schaaf v. Cleveland Ry. Co., 66 Ohio St. 215, 64 N. E. Rep. 145, (1902). So it was held in North Penna. R. R. V. Inland Trac. Co., 205 Pa. St. 579, 55 Atl. Rep. 774, (1903), that where a street railroad company secures the consent of the township authorities to the use of the turn- pike road and also has the consent of the turnpike company and the owners of the property abutting on one side of the road, it may lay its tracks on that side of the road, and an owner on the other side of the road who has not consented, but whose property has not been touched and who is in no way injured by the tracks, has no standing to maintain a bill for an injunction to restrain the construction of the railway. 726 THE t-AW OF STEEBT EAILWATS. t§ 441. in Iowa that, where a city vacated a street and conveyed the fee thereof to the state for the use of the state university, suhject to a right of way which was granted simultaneously to an inter^ urban railway company, the way used by the com.pany was no longer a highway and it could operate its cars thereon for freight and passenger traffic without compensation to abutting property owners.**"" § 443. Compensation to abutting owners for use of highway. — In those cases in which an interurban railway has been held to be an additional burden, the occupation of the country highway and the streets of the city by its tracks constitutes the taking of private property for public purposes for which abutting owners are entitled to compensation.®^ The measure of damages for the 134 Mich. 149, 96 N. "W. Rep. 35, (1903). ""a Tomlin v. Cedar Rapids Ry. Co., 141 la. 599, 120 N. W. Rep. 93, 22 L. R. A. (N. S.) 530, (1909). " Abbott V. Milwaukee Trac. Co., 126 Wis. 634, 106 N. W. Rep. 523, 4 L. R. A. (N. S.) 202, (1906); Rlsche V. Texas Trans. Co., 27 Tex. Civ. App. 33, 66 S. W. Rep. 324, (1901); Miller v. Cincinnati Ry. Co., 43 Ind. App. 540, 88 N. E. Rep. 102, (1909). In Marsh v.. Milwaukee Light, Heat and Trac. Co.. 134 Wise. 384, 114 N. W. Rep. 804, (1908), it was held that the right to operate inter- urban cars or interurban trafllc over an established street railway lime was essentially different from the right to operate the ordinary city street cars over the railway line for urban traflBc, and that the right so to operate interurban cars con- stituted an additional servitude on the soil for which the owner was entitled to compensation. See also the cases in sees. 440, 441, ante, in which the interurban railway is held to be an additional burden. But an abutting owner is not en- See Lonaconing Ry. Co. v. Coal Company, 95 Md. 630, 53 Atl. Rep. 420, 29 A. & Eng. R. Cas. (N. S.) 8, (1902), in which it was held: "The easement acquired by the pub- lic in a street or highway was the right to use it, 'not only according to the then existing modes of travel and transportation, but all such other modes as may arise in the ordinary course of improvement.' " But see Peddicord v. Baltiniore Ry. Co., 34 Md. 463, (1871), deciding that an interurban railway author- ized to construct and operate its road upon the country highway, cannot be enjoined at the suit of the owner of the lands abutting thereon, whether the fee to the lands to the center of the road is In such owner or not, unless the con- struction and use of the railway will specially interfere with the owner's ingress and egress to and from his premises. See also Ranken v. St. Louis Ry. Co., 98 Fed. Rep. 479, (1899); Ehret v. Camden Ry. Co., 61 N. J. Bq. 171, 47 Atl. Rep. 562, (1900); Borden v. Atlantic High- lands Ry. Co., 18 N. J. L. J. 305, (1895); Austin v. Detroit Ry. Co., § 442. J INTEBUEBAN EAILWAYS. 727 operation of an interurban railway over the street railway tracks in a municipality, it has been held, should be estimated with refer- ence to conditions lawfully existing at the time of the filing of the award of the commissioners, including the existence and opera- tion of a street railway on the streets in front of plaintifP's premises, and with reference to the changes made by the taking when completed, including the substitution of an interurban railway road bed, track and appliances permanently upon the street, but with the duty on the part of the respondent to con- tinue the street railway service. The damages for the operation of an interurban railway may be measured by the difference, if any, between the market value of the property in its former condi- tion and its market value with the condemnation completed.®^ It has been held in Wisconsin that the operation of an interurban railway along a street cannot be considered as a benefit to be set off against the damages to be awarded abutting property owners upon condemnation of the right to operate its cars along street railway tracks, where the duty to operate the street cars will continue after the acquisition of such rights by the inter- urban company.^® In those cases in which the operation of inter- titled to compensation for the con- are to be considered as conditions struction and operation of an Inter- existing at the time of the taking, urban railway over a right of way by the respondent, of the tracks, in which he does not own the fee. poles, wires and appliances for the See sec. 441, n. 66. interurban tracks, poles, wires and "Marsh v. Milwaukee Trao. Co., appliances, but not as special bene- 134 Wise. 384, 114 N. W. Rep. 804, fits. The fact that, by the limited (1908); Abbott v. Milwaukee Trac. estate or interest taken In these Co., 126 Wis. 634, 106 N. W. Rep. condemnation proceedings, the obli- 523, (1906). gation to continue the street rail- " Grosa V. Milwaukee Trac. Co., 134 way service for some years will re- Wisc. 369, 376, 114 N. W. Rep. 815, main, is proper to be considered in 15 L. R. A. (N. S.) 531, (1908). mitigation of damages, because The court says: "In estimating the thereby it appears that its condem- plaintiff's damages the existence of nation proceedings takes a less an electric street railway with its estate or Interest In the street than road bed, poles, wires and appli- would an interurban railway which, ances and the fact that the street by its condemnation proceedings, railway was subject to that burden took the whole use of the street and without compensation to the lot extinguished by condemnation the owner and to other like burdens street railway franchise. On the which the municipal authorities other hand, the perpetual nature of might in their discretion impose, the right acquired by condemnation. 728 THE LAW OF STREET RAILWAYS. [§ 442. urban cars over the tracks of an established street railway line in a municipality has been held not to be an additional servitude the abutting owner is not entitled to compensation therefor, but if the railway is operated in a careless or unlawful manner an adjoining property owner is entitled to recover for any special damage which he sustains as the result of such use of the street.™ § 443. Damages for special injuries — ^interference with right of ingress and egress — change of grade — An interurban railway company is liable for damages for causing obstructions which materially interfere with the access to the property of the abutting owner. It has been generally held that it has no right, by making cuts or tills or in any other manner, to interfere with the access to private property from the highway nor to so construct its road thereon as to interfere with public travel or disturb adjacent land owners.^^ So the construction of the track on the side of a existing indefinitely, beyond ttie time when the street railway fran- chise will expire, is also to be con- sidered. In short, these things are to be' considered in the estimate of damages as conditions affecting the property, and even when they go to ameliorate damages they should not be considered at all as special bene- fits." "Kinsey v. Union Trac. Co., 169 Ind. 563, 81 N. E. Rep. 922, (1907), Hadley, C. J., says: "It is, in sub- stance, alleged that the appellees run over College avenue, in front of appellant's house, cars, both passen- ger and freight, that are sixty feet in length, and often trains of three cars each, or one hundred eighty feet in all, at the rate of twenty or thirty miles an hour, by reason whereof the ground is made to vibrate and shake the house of ap- pellant, situated sixty feet from the track, so as to cause the plastering to break off and fall, and her picture frames to fall from the walls and break; that the noise and vibration disturb her sleep, frighten horses hitched in front of her house and cause them to break away, and the street is rendered dangerous to all persons traveling thereon. "If the appellant can prove these averments she is entitled to recover, not because the right to operate interurban cars on College avenue imposed a new and additional bur- den on her property, but because such cars have been operated in front of her house in an injusti- flable and unlawful manner." See also Mordhurst v. Ft. Wayne Trac. Co., 163 Ind. 268, 71 N. E. Rep. 642, (1904) ; Greem v. City & Subur- ban Ry. Co., 78 Md. 294, 28 Atl. Rep. 626, (1894). " Heilman v. Lebanon Ry. Co., 180 Pa. St. 627, 37 Atl. Rep. 119, (1897) ; Becker v. Lebanon Ry. Co., 188 Pa. St. 484, 41 Atl. Rep. 612, (1898); Farrar v. Midland Elec. Co., 101 Mo. App. 140, 74 S. W. Rep. 500, (1903); Nichols v. Ann Arbor Ry. Co., 87 Mich. 361, 49 N. W. Rep. 538, 16 L. R. A. 371, (1891) ; Akron, B. & § 443.] IJSTTEEUEBAN RAILWAYS. 729 highway so near the projaerty of the abutting owner as to cause him inconvenience and obstruct his free access to his property is an additional servitude.''^ Where interurban cars were operated of such size and with such speed as to make the ground vibrate C. Ry. Co. V. Keck, 23 Ohio C. C. 57, (1901). A traction railway cannot con- struct and operate its road on tlie side of a highway not conforming to the grade thereof but by means of cuts and fills and using the "T" rail without compensation to abut- ting owners. Zehren v. Milwaulsee Ry. Co., 99 Wise. 83, 74 N. W. Rep. 538, 41 L. R. A. 375, (1898). An abuttiUig property owner can enjoin a change of grade. Murray Hill Land Co. v. Milwaukee Trac. Co., 110 Wise. 555, 86 N. W. Rep. 199, (1901). In Georgetown Trac. Co. v. Mul- hoUand, 25 Ky. Law Rep. 578, 76 S. W. Rep. 148, (1903), it was de- cided that where the owner of land on both sides of a highway was entitled to maintain crossings over the same, which were injured or destroyed by the construction of a street railway along the highway, such owner is entitled to recover damages sustained between the time the crossings were destroyed and the time they were restored. But it was decided in West Jersey Ry. Co. V. Camden Ry, Co., 52 N. J. Bq. 31, 29 Atl. Rep. 423, 4 L. R. A. (N. S.) 202, (1893), that an abutting owner has no right to compensa- tion because the grade of a highway is lowered for an interurban road which is built to conform thereto, or because the road is constructed so close to the side of the highway as to subject his fence and land to danger of sliding into the highway. See also Austin v. Detroit Ry. Co., 134 Mich. 149, 96 N. W. Rep. 35, (1903). In Green v. City & Suburban Ry. Co., 78 Md. 294, 28 Atl. Rep. 626, (1894), it was decided that an abut- ting owner is not entitled to compen- sation for interference with ingress and egress to and irom his lot on account of change of grade, because the turnpike over which the road was constructed had the right under the law to make such changes. See also Purinton v. Somerset, 174 Mass. 556, 55 N. E. Rep. 461, (1899). " Humphreys v. Ft. Smith Trac. Co., 71 Ark. 152, 71 S. W. Rep. 662, (1903). It was decided in this case that where an abutting owner has agreed to the construction and operation of a horse railway along the high- way in front of her premises and the railway afterwards changes Its power to electricity and places its track on the side of the road so as to obstruct the access to her prop- erty, she is not precluded by her contract trom claiming damages from the change, even though, had not the right of way been originally secured by legislative authority, the changed road would not have im- posed an additional burden on the owner. See also Murray Hill Land Co. V. Milwaukee Trac. Co., 110 Wise. 555, 86 N. W. Rep. 199, (1901). But see Poole v. Falls Road Ry. Co., 88 Md. 533, 41 Atl. Rep. 1069, (1898), in which it was decided that the construction of a suburban electric railway upon a highway which is so narrow that there is not sufficient space for vehicles to pass or stand between the curbstone and the tracks is not such a taking of the property of the abutter who owns 730 THE LAW OF STREET EAILWATS. [§ 443. and shake the house of an abutting owner so as to injure it, dis- turb his sleep, and frighten horses hitched in front of the house and cause them to break away, it was held that he was entitled to special damages caused thereby.''* It has been decided that a street railway company authorized to construct its tracks on the highway has the right to remove shade trees therefrom without compensation to the abutting owner, but it must first give him notice and opportunity to remove them.''* § 444. Liability to public authorities for unauthorized use of highway — In Ohio it has been held that an ordinance of a city council, authorizing a street railway company to extend its line beyond the limits of the municipality. Over a state road, is no the bed of the street as to entitle him to enjoin the construction of the road. In Nieman v. Detroit Suburban Ry. Co., 103 Mich. 256, 61 N. W. Rep. 519, (1894), the franchise of the railway specifically provided that the road should be constructed so as to afford proper ingress and egress to the owners of adjoining lands. The court, however, decided that where a traction railway is constructed on a side of the high- way and there is ample space left between the track and the line of land abutting on the highway for the construction of sidewalks and all other necessary and convenient purposes, this is a compliance with the law because no one is deprived of the use of the highway or of access to his property. So it was held in Ashland Ry. Co. V. Faulkner, 21 Ky. Law Rep. 151, 43 L. R. A. 554, 10 A. & E. R. Cas. (N. S.) 223, 51 S. W. Rep. 806, (1898), that the construction of an electric street railway on a turnpike within seven feet of a saloon does not en- title the abutting owner to compen- sation though it prevents teams from standing in front of his place of business as they had formerly done. See also West Jersey Ry. Co. V. Camden Ry. Co., 52 N. J. Bq. 31, 29 Atl. Rep. 423, 4 L. R. A. (N. S.) 202, (1893). "Kinsey v. Undon Trac. Co., 169 Ind. 561, 81 N. E. Rep. 922, (1907); Green v. City & Suburban Ry. Co., 71 Md. 294, 28 Atl. Rep. 626, (1894). "Miller v. Detroit Ry. Co., 125 Mich. 171, 84 N. W. Rep. 49, 51 L. R. A. 955, (1900). The court said: "Municipal authorities have the en- tire control over their highways, streets and sidewalks, and may re- move shade trees whenever they are an obstruction to the use of the highway for public travel without compensation to the owner. It is within the contemplation of the dedication or condemnation of the highway that the public authorities have the right to appropriate the entire width of the road for the purposes of travel, if it shall become necessary." See also Akron, B. & C. Ry. Co. v. Keck, 23 Ohio C. C. 57, (1901). It was held in Georgetown Trac. Co. v. MulhoUand, 25 Ky. Law Rep. 578, 76 S. W. Rep. 148, (1903), that a street railway can remove fences i 445.] inteeuebAn eailways. Ul defense to an action by the county commissioners against the company to recover damages for injury to the road caused by the construction of the line so extended, on the ground that the municipality, although expressly authorized by statute to pass such an ordinance, cannot thereby affect the rights of the county commissioners to control a public highway beyond the municipal limits." § 445. Injunction — The construction and operation of a traction railway will be enjoined to protect the abutting owner from unlawful occupation of the highway; and this relief has been granted when the railway company had not obtained the consent of local authorities or abutting owners.''® Where an in- terurban railway is held to be an additional burden, its construc- tion upon the highway without compensation to abutting owners is an unlawful obstruction to the street and will be perpetually enjoined.''^ It has been held that where a highway is not within maintained by an abutting owner on the highway without compensa- tion therefor. " Citizens Ry. Co. v. Commission- ers, 56 Ohio St. 1, 46 N. E. Rep. 60, (1897); Commissioners v. Elec. Ry. Co., 9 Ohio C. C. 183, (1895). It was held in Fowler v. Ft. Wayne Trac. Co., 91 N. B. Rep. 46, (Ind. 1910), that an action for damages for Injuries received on the ground that an Interurban rail- way upon a country highway Is a nuisance cannot be maintained. As to requirements of service of pro- cess in a suit for damages see Halla- day V. Detroit Ry. Co., 155 Mich. 436, 119 N. W. Rep. 445, (1909). " Schuster v. Milwaukee Elec. Ry. Co., 142 Wise. 578, 126 N. W. Rep. 26, (1910). In this case the com- pany's charter did not authorize it to operate an interurban line. The court held that Its operation was unlawful both as to adjoining land owners and the public, and that a court of equity will enjoin the com- struction and operation even though compensation had been paid to al- most all of the abutting owners and though the adjoining owners' prop- erty Is Insignificant in value to them as compared with the advantages which would accrue to the company by reason of the use of the street. See also Swlnhart v. St. Louis Ry. Co., 207 Mo. 423, 105 S. W. Rep. 1043, (1907). "Swlnhart v. St. Louis Ry. Co., 207 Mo. 423, 105 S. W. Rep. 1043, (1907). The court held that where the evidence tends to show that by reason of the manner of the con- struction of a railway . in a public street and the use to which defend- ant put It, and the practical useful- ness of the street to the owner of abutting properties so destroyed, there is no adequate remedy at law and the equitable remedy of injunc- tion against the railway company to enjoin its further use of its tracks so laid and to require their removal is a proper one. .732 THE LAW OF STEEET RAILWAYS. [§ 445. the limits of a city and the right to occupy it ha^ not been con- demned, an abutting owner can enjoin a change of grade ;''^ that a turnpike company may enjoin the unauthorized use of its road bed by a traction railway company f^ and that an averment, in a bill of equity for an injunction, that the railway is illegally constructed upon a highway, will be taken as true unless the In North Pennsylvania R. R. Co. V. Inland Trac. Co., 205 Pa. St. 579, 55 Atl. Rep. 774, (1903), it was held that an abutting owner is entitled to an injunction to protect his own land to the center of the road against the uurden of the traction railway tracks although the oppo- site owner has consented to the use of his lands by the company, but that he cannot enjoin the construc- tion of the tracks upon his neigh- bors' land, on the side of the road belonging to his neighbor. See also Nichols V. Ann Arbor Ry. Co., 87 Mich. 3C1, 49 N. W. Rep. 538, 16 L. R. A. 371, (1891). But it was decided in Rische v. Texas Transportation Company, 27 Tex. Civ. App. 33, 66 S. W. Rep. 324, (1901), that a traction railway in- corporated for transporting freight, although an additional burden, will not be enjoined from operating its road, at the instance of the owner of property abutting on the street, because it is using heavy motors and hauling large quantities of freight, rendering access to his premises dangerous and inconven- ient and endangering the lives of his family and other persons using the street, since the injury in such case is not irreparable and compen- sation may be had in damages. In Borden v. Atlantic Highlands Ry. Co., 18 N. J. Lr. J. 305, (1895), the court refused to grant an in- junction against the construction of an interurban railway upon a coun- try road on the ground that the law in New Jersey was unsettled as to whether such a railway was an ad- ditional burden thereon. "Murray Hill Land Co. v. Mil- waukee Trac. Co., 110 Wise. 555, 86 N. W. Rep. 199, (1901); Freud v. Detroit Ry. Co., 133 Mich. 413, 95 N. W. Rep. 559, (1903). But see Poole V. Falls Road Ry. Co., 88 Md. 552, 41 Atl. Rep. 1069, (1898). See Farnum v. Haverhill Ry. Co., 178 Mass. 300, 59 N. B. Rep. 755, (1901), holding that the construction of a traction railway through private lands will not be enjoined, where the company has received the con- sent of the owners, or acquired the lands by purchase. In this case the bill was filed by a stockholder of the company. '" Turnpike Road Co. v. United Ry. Co., 93 Md. 138, 48 Atl. Rep. 723, (1901). The railway company had entered into a contract with the turnpike company to operate its line over the turnpike. In the agree- ment it was provided: "That cars of said electric road shall always be permitted to carry such articles as are carried on other suburban elec- tric lines running into Baltimore," and It was provided also that they should not carry heavy freight The court granted an injunction against the running of freight and express cars. But see Heilman v. Lebanon Ry. Co., 145 Pa. St. 23, 23 Atl. Rep. 389, (1892). i 446.] INTEEUEBAN EAILWAYS. 733 contrary is proved by the defendant company.*" It has been held that equity has the power to intervene where the local authorities have adjudged a breach of the conditions of the franchise and declared a forfeiture and decreed a sale of the corporation property, even though the ordinance granting the franchise provides that the authorities shall have that power, where the breach of certain conditions was prevented by unavoid- able circumstances.*^ A commercial railroad company v^ill not be entitled to an injunction on the ground that its passenger traffic will be diminished by the constraction of a traction railway, for the injury must be to the rights and not merely detrimental to the interests of the complainant.*^ § 446. Eminent domain. — Street railway companies are not usually given the right to exercise the power of eminent domain, because, as their cars are operated upon the city streets for the benefit of local traffic, such power is not necessary.*^ So the =»Switthart v. St. Louis Ry. Co., 207 Ma. 423, 105 S. W. Rep. 1043, (1907). Service of Process. The laws of Michigan (Act No. 208, p. 314 Pub- lic Acts, 1901) provide that it shall be sufficient service of process upon any corporation owning or operat- ing an interurban electric railway in the city if the same is made "upon any conductor upon any of the cars of such company along the line of or at the end of the road of such company," with the proviso that such service "shall not apply to conductors on electric railways operating within the limits of in- corporated cities." It was held that service upon a conductor in a city through which an interurban rail- way passes is sufficient, that the end of such a railway is necessarily within the limits of an incorporated city since the court takes judicial notice that there is no interurban electric railway in the state not hav- ing a terminus in a city and that the proviso of the statute in re- gard to electric railways relate to those operating wholly within the limits of incorporated cities. Hal- laday v. Detroit United Ry. Co., 155 Mich. 436, 119 N. W. Rep. 445, (1909). " North Jersey Ry. Co. v. South Orange, 58 N. J. Bq. 83, 43 Atl. Rep. 5i, (1899). " Pennsylvania R. R. Co. v. Greens- burg St. Ry. Co., 176 Pa. St. 559, 35 Atl. Rep. 122, 36 L. R. A. 839, (1896). '" A street railway company is au- thorized under the General Railroad Law of New York (sec. 13, c. 130, Laws of 1850) to acquire by con- demnation such land as is "required for the purposes of its incorpora- tion." In the case of In re South Beach Ry. Co., 119 N. Y. 141, 23 N. B. Rep. 486, (1890), it was held that the rail- way company could condemn only such and so much land as the proper execution of the corporate pur- poses shall require and render 734 THE LAW OF STREET RAILWAYS. [§ 446. right to condemn for suburban tracks is rarely conferred because they are merely extensions of the city railways over the highways of adjacent territory.** It has been held that an interurban rail- way company incorporated under the street railway law which gives it the right to appropriate property necessary for the con- struction of its road, is not authorized to condemn private prop- erty except where its route is necessarily deflected from the highway.*^ But interurban railways often depart from the high- necessary, and that a corporation organized as a street railway to be built upon streets, and to construct and operate in and between certain towns, could not condemn private lands between the towns for the construction of its road. See also Rochester Ry. Co. v. Rohman, 133 iS. Y. 243, 30 N. E. Rep. 1008, (1892). " Thompson Elec. Co. v. Simon, 20 Ore. 60, 25 Pac. Rep. 147, 10 L. R. A. 251, (1890). It was held in this case that a statute authorizing "any rail- way to condemn property does not authorize the exercise of the power of eminent domain by a suburban railway." But see In re South Beach Ry. Co., 119 N. Y. 141, 23 N. E. Rep. 486, (1890). " Hartshorn v. Illinois Valley Trac. Co., 210 111. 609, 71 N. B. Rep. 612, (1904). In this case the court held that it must appear that there is an honest effort on the part of the railway to follow the highway and that it cannot deflect to save distance or expense of construction. It interpreted the word "necessary" to mean "expedient," "reasonably convenient" or "useful to the pub- lic," and held that the railway may condemn private property to avoid dangerous grade crossings on the steam road and a dangerously steep grade terminating at the bottom in a sharp curve, to serve the safety, comfort and convenience of the public. The court says: "So far as they are authorized to travel through the country districts, it is upon the theory that they will be of benefit to the rural inhabitants and not that only those living in the towns, where regular stations shall be maintained, shall be the beneficia- ries. . . . They are permitted to follow the highways, making all the stops necessary for the accommo- dation of the people living along the highways. The fact that they have adopted electricity as thedr power instead of horse or dummy cannot enlarge their powers or lessen or change their duties. If the country districts are so sparsely settled that the trafllc along them will not support such roads follow- ing them, then their construction is not a public necessity, and the power of eminent domain, upon the theory that they do exercise a public function, cannot be called into ac- count in their behalf. If they seek to travel across the country, as do steam roads, disregarding the high- ways, and disregarding the interests and convenience of the country people, let them organize under the law regulating steam railroads and be subject to the regulations of the statute and burdens cast upon such railroads." See also Harvey v. Aurora Ry. Co., 174 111. 295, 51 N. E. Rep. 163, (1898); Aurora Ry. Co. v. Harvey, 178 111. 477, 53 N. B. Rep. 331, § 446.] INTEEtJEBAN EAILWAYS. 735 ways and are constructed and operated in whole or in part on private rights of way, thus relieving the highway in sparsely settled sections, and usually returning to it upon reaching a village or town. For such lines it is necessary to acquire private property by condemnation, and in a number of the states statutes have been passed expressly conferring the power to appropriate.^® A corporation which is organized under the General Eailroad Law may exercise the powers of commercial railroad companies, includ- ing the power of eminent domain. ^^ It has been held in a late Indiana case that, in determining whether a corporation can exercise the right of eminent domain, the statute indicating whether the corporation was organized as a private or quasi public corporation is not important, and that, although an interurban railway is incorporated under the voluntary associations' act and not under the special statute for incorporating street and inter- urban railways it is entitled to the privileges of all statutes relat- ing to interurban companies, including a statute authorizing them to condemn private property.^^ The power to appropriate prop- erty for public use must be conferred by the legislature in express terms or by necessary implication, and statutes granting this power, being in derogation of common law, must be strictly construed and the power must be exercised in strict conformity to the terms of the statute by which it is conferred.^* Private (1899); Dewey v. Chicago Ry. Co., for the transmission of electricity, 184 111. 426, 56 N. E. Rep. 804, (1900). confers the power upon lessee of the " Galveston Ry. Co. v. Houston street and interurban railways, but Elec. Co., 122 S. "W. Rep. 287, (Tex. that in absence of such express 1909). In this case the court held authorization the lessee cannot con- that the General Railroad Laws demn lands for a use appurtenant to (1907, p. 23, c. 15) conferring the a way of the lessor, power of eminent domain upon in- See also Baltimore Turnpike v. terurhan electric railway companies Baltimore Ry. Co., 81 Md. 247, 31 does not apply to street railways. Atl. Rep. 854, (1895) ; Cook v. Evans- In Mull V. Indianapolis Trac. Co., ville Terminal Ry. Co., 93 N. E. Rep. 169 Ind. 214, 81 N. E. Rep. 657, 279, (Ind. 1910). (1907), it was held that the statute ='Malott v. Collinsville Ry. Co., giving the power of eminent domain 108 Fed. Rep. 313, (1901). to any railway corporation, having " Cook v. Bvansville Terminal Ry, "constructed or acquired" any street Co., 93 N. B. Rep. 279, (Ind. 1910). railway or interurban street rail- ''Indianapolis & V. R. Co. v. way, to take private property neces- Indianapolis & M. Trans. Co., 33 sary for the construction of its lines Ind. App. 337, 67 N. E. Rep. 1013, 7;-i6 THE LAW OF STEEET RAILWAYS. [§ 446. property can be condemned only for public use, and the term "public use" has been interpreted to mean the taking of property which is beneficial to the exercise of the public franchise and not when it pertains only to the private interests of the company in the details of its business.*" Interurban railway companies are not usually authorized to condemn property within the limits of a municipality. They, however, have been authorized to acquire the right by condemnation to construct their roads upon a public street the fee of which is vested in the abutting owners.*' Within certain restrictions property owned by a. corporation is (1904) ; Norfolk Ry. Co. v. Turnpike Co., 100 Va. 243, 40 S. B. Rep. 897, (1902). In this case the court said: "The authority must be by express enactment or by implication so clear as to leave no doubt that it was granted." See also Dawey v. Chi- cago Ry. Co., 184 111. 426, 56 N. B. Rep. 804, (1900) ; Kansas City Inter- urban Ry. Co. V. Davis, 197 Mo. 669, 95 S. W. Rep. 881, (1906); TS/Lull v. Indianapolis Trac. Co., 169 Ind. 214, 8i N. B. Rep. 657, (1907); Harvey V. Aurora Ry. Co., 174 111. 295, 53 N. B. Rep. 163, (1898). "°In re Rhode island Ry. Co., 22 R. I. 457, 48 Atl. Rep. 591, (1901). In this case it was held that the taking of land for a power house for generating electricity, for coal pockets for the storage of coal and for a conduit to carry water from the river to the engine, is not a taking for a public use. See also Baltimore Turnpike Co. v. Baltimore Ry. Co., 81 Md. 247, 31 Atl. Rep. 854, (1895); Kansas City Interurban Ry. Co. V. Davis, 197 Mo. 669, 95 S. W. Rep. 881, (1906); Dubuque Ry. Co. v. Ft. Dodge Ry. Co., 146 la. 666, 125 N. "W. Rep. 672, (1910) ; Cook V. Evansville Terminal Ry. Co., 93 N. E. Rep. 279, (Ind. 1910). It was held in Mull v. Indianapolis Ry. Co., 169 Ind. 214, 81 N. B. Rep. 657, (1907), that an interurban rail- way company has power to condemn land for a transmission line. The court held that where the legislature has authorized a railway to take private property necessary for the construction of lines for transmis- sion of electricity, the court will not decline to acknowledge a public use merely because of incidental private advantage unless it is manifest that the proposed use does not imply a right in the general public to its enjoyment. " Abbott V. Milwaukee Trans. Co., 126 Wis. 634, 106 N. W. Rep. 523, 4 L. R. A. (N. S.) 202, (1906) ; Sche- nectady Ry. Co. V. Peck, 88 App. Div. (N. T.) 201, 84 N. Y. Supp. 759, (1903); Brickels v. Milwaukee Trac. Co., 134 Wis. 358, 114 N. W. Rep. 810, 14 L. R. A. (N. S.) 644, (1908); Gosa V. Milwaukee Trac. Co., 134 Wis. 369, 114 N. W. Rep. 815, 15 L. R. A. (N. S.) 531, (1908). It was held in Hamilton Trac. Co. V. Parrish, 67 Ohio St. 181, 65 N. B. Rep. 1011, (1902), that the consents of abutting owners cannot be ap- propriated under the power of emi- nent domain. In In re Plowright, 140 Wis. 512, 122 N. W. Rep. 1043, (1909), it was decided that a cor- poration having a franchise from the state to operate a street railway for the carrying of passengers in the city and no authority to operate § 446.] liS'TBKUEBAN KAILWAYH. 73, subject to the power of eminent domain. It has been held that the grant of a franchise is of no higher order and confers no more sacred title than the grant of land to an individual, and, when public necessity requires it, the one as well as the other may be taken for public purposes upon making suitable compensation. So an interurban railway company may acquire by condemnation a right of way over a turnpike*^ or across the tracks of a steam raUroad, or a street railway, or rival interurban railway."^ But it has been held that land taken by condemnation or acquired by purchase for public use cannot be condemned unless the reasons therefor are special, unusxial and peculiar, and then cannot be so taken if such unusual use would interfere with or destroy the public use first acquired, imless the intention of the legislature. interurban cars over the streets, had no right to condemn the use of the street for an interurhan business. « Baltimore Turnpike Co. v. Balti- more Ry. Co., 81 Md. 247, 31 Atl. Rep. 854, (1895) ; Norfolk Ry. Co. v. Turnpike Co., 100 Va. 242, 90 S. E. Rep. 897, (1902); Trotier v. St. Louis Suburban Ry. Co., 180 111. 471, 54 N. E. Rep. 487, (1899). In this case an interurban railway condemned a strip of land on each side of a turnpike company. The turnpike company had granted to the railway company its right in the strips, which was only a right of way, the fee being in the abutting owner. The court held: "The consent of the highway commissioners must De obtained or the compensation to be laid for the damage or injury to the public right for the ordinary uses of the highway must be ascertained and paid. Such consent or condem- nation is made a condition of the right of the railway to intrude upon a highway at all. ... By the statute the petitioner could only construct its railway along or upon any highway, plank road or turn- pike by first obtaining the consent 47 of the local authorities having con- trol and jurisdiction of the same, or by conflemning a joint use with tne public." But In iililler v. Cincinnati Ry. Co., 43 Ind. App 540, 88 N. E. Rep. 102, (1909), it was held that a stat- ute authorizing a taking of land for highway purposes does not permit the taking of the land for any other use. '" Galveston Ry. Co. v. Houston Elec. Co., 122 S. W. Rep. 287, (Tex. 1909) : Malott v. Collinsville Ry. Co., 108 Fed. Rep. 313, (1901) ; Cleveland Ry. Co. V. Urbana Ry. Co., 26 Ohio C. C. 180, (1903). xt was held in Indianapolis & V. R. Co. V. Indianapolis A M. Trans. Co., 33 Ind. App. 337, 67 N. B. Rep. 1013, (1904), that the Act of 1901 (p. 461), giving interurban railways the right to cross intersecting high- ways and railroads does not author- ize the use of a railroad right of way longitudinally in whole or in part. See also Chicago & Milwaukee Ry. Co. V. Chicago & N. W. R. R. Co., 211 111. 352, 71 N. E. Rep. 1017, (1904) ; Fayetteville Ry. Co. v. Aber- deen Ry. Co., 142 N.. C. 423, 55 S. E. Rep. 345, (1906). See sec. 450, post. 738 THE LAW OF STREET RAILWAYS. [§ 446. that land may be so taken, is shown by express terms or necessary implication.** § 447. Damages for property condemned — practice Por land appropriated for an interurban railway under the power of eminent domain the abutting owners are entitled to compensa- tion under the same rules as in the case of a taking for a com- mercial railroad. Before property can be taken for that pur- pose, damages must be paid or tendered.®^ The right to damages accrues when the proceeding to condemn is instituted.®* AH " New York & Cincinnati R. R. Co. V. Buffalo, 200 N. Y. 113, 93 N. E. Rep. 520, (1910); Miller v. Cincin- nati Ry. Co., 43 Ind. App. 540, 88 N. E. Rep. 102, (1909). It was held in Montgomery Amuse- ment Co. V. Montgomery Trac. Co., 139 Fed. Rep. 353, (1905), that a traction railway could not condemn a right of way through and into a private amusement park. In Portland Ry., L. & P. Co. v. Portland, 181 Fed. Rep. 632, (1910), it was decided that a city which has only the general charter power to open, lay out, establish, widen, alter, extend, vacate or close streets, and to appropriate and condemn private property therefor, has no power to condemn a part of a rail- way's private right of way to con- struct a street longitudinally along the same, especially where there Is no provision for joint use of the property by the railway company and the public, and where the city attempts to condemn complainant's property for a street, it thereby at- tempts to deprive complainant of its property without due process of law, in violation of the fourteenth amendment of the federal constitu- tion. '"Under a Wisconsin statute au- thorizing the formation of street railways for the transportation of pedestrians, mail, express, merchan- dise or freight, and empowering such corporations to exercise the right of eminent domain, the use of a street for interurban traffic is not a burden contemplated by the orig- inal taking of the land for street purposes, and the appropriation of the street by the railway company constitutes a taking of private prop- erty for a public purpose for which the abutting owners are entitled to compensation. Abbott v. Milwau- kee Trac. Co., 126 Wis. 634, 106 N. W. Rep. 523, 34 L. R. A. (N. S.) 202, (1906). See also Miller v. Cincinnati Ry. Co., 43 Ind. App. 540, 88 N. B. Rep. 102, (1909). "In Brickies v. Milwaukee Trac. Co., 134 Wis. 358, 114 N. W. Rep. 810, 14 K R. A. (N. S.) 644, (1908), the railroad had maintained an in- terurban business over the street car lines of a city several years be- fore the filing of the petition for condemnation and the enactment of a statute granting the right of eminent domain to interurban rail- ways, (Laws of 1901, Wis. Ch. 465). It was held that the construction of the line by the street railway was lawful, but the operation of an in- terurban line over them, having no power to condemn land, was unlaw- ful and the interurban railway was § 447.] INTEEUEBAN EAILWAYS. V39 damages present and future arising from the proper construction and operation of a railway must be recovered in one proceeding, and a subsequent action cannot be maintained for damages not included in the former proceeding.^'' The measure of damages is held to be the difference, if any, at the time of filing the award between the market value of the premises with the railway located on it and the market value at that time freed from the use and burden of the railway.®* It has been held in Wisconsin that the a trespasser; that the taking of the land for the interurban business, however, did not take place until the proceedings had begun under the statutes, and neither the pas- sage of the statute authorizing con- demnation nor the continuous use for interurban purposes constituted an expropriation of abutters' rights. " Union Trac. Co. v. Pfeil, 39 Ind. App. 51, 78 N. B. Rep. 1052, (1906). In this case It was held that where land has once been condemned, the railway can lay additional tracks and run any number of cars over them without paying additional damages. See sec. 99, n., and sec. 102, ante. "Marsh v. Milwaukee Trac. Co., 134 Wis. 384, 114 N. W. Rep. 804, (1908). In this case it was held that the measure of damages for the operation of an interurban railway over the street railway tracks in a municipality should be estimated with reference to the condition law- fully existing at the filing of the award of commissioners, including the existence and operation of a street railway on the streets in front of plaintiff's premises, and with reference to the changes made by the taking when contemplated, including the substitution of an in- terurban railway road bed, track and appliances permanently upon the street, but with a duty on the part of the respondent to continue the street railway service. See also Abbott V. Milwaukee Trac. Co., 126 Wis. 634, 106 N. W. Rep. 523, 4 L. R. A. (N. S.) 202, (1906). In Chicago & Milwaukee Ry. Co. V. Diver, 213 111. 26, 72 N. B. Rep. 758, (1904), it was decided that in absence of a stipulation that the petitioner, a railroad company, will fence its right of way as the road is constructed, it is proper to instruct the jury that under the statute the petitioner has six months to fence its road after completion, that the damages, if any, attendant upon keeping of the right of way open during that time was proper for the consideration of the jury, that de- fendant had the right to have its damages estimated with reference to the fact that the plaintiff had the right to elect what motive power it may use, and that the jury may consider that the railway has the right to use steam power. Martin v. Chicago Ry. Co., 220 111. 97, 77 N. E. Rep. 86, (1906), holding that: "If by reason of the supposed adaptability of land for a particular purpose the land commands a better price in the open market, such fact is to be considered in estimating the value." In this case the adapt- ability for sub-division Into lots was taken into consideration. Miller v. Cincinnati Ry. Co., 43 Ind. App. 540, 88 N. E. Rep. 102, (1909). In this case the land ueed 740 THE LAW OF STREET EATLWAYS. [§ 447. advantages arising from the operation of an interurban railway along a street cannot be considered as a benefit to be set off against the damages to be awarded abutting property owners upon condemnation of the right to operate cars over street railway tracks where the duty to operate the street cars will continue after the acquisition of such rights by the interurban company.®* Where the right to damages has accrued and the land is sold by the railway for its tracks tad been condemned for a public high- way but abandoned and the title reverted to the plaintiff. It was sub- sequently condemned by the railway. It was held that the abutting owner was entitled to damages for its use. It appeared that the railway had formerly been located on the side of a highway and relocated its tracks, destroying a wall, steps, trees, etc., in front of plaintiff's residence. It was held that the increased incon- venience and damage done by the appellee's tracks as relocated may possibly be greater than its former location, but that the compensation allowed for the land when originally taken for highway purposes also contemplated the damages caused by the additional servitude on the highway for appellee's tracks, and that the damages are restricted to compensation for the plaintiff's land actually taken. ■' Gosa V. Milwaukee Trac. Co., 134 Wis. 369, 114 N. W. Rep. 815, 15 L. R. A. (N. S.) 531, (1908). The court said: "In estimating the plaintiff's damages, the existence of the elec- tric street railway with its road bed, poles, wires and appliances, and the fact that the street railway was sub- ject to that burden without com- pensation to the lot owner and to other like burdens which the munic- ipal authorities might, in their discretion, impose, are to be con- sidered as conditions existing at the time of the taking, by the re- spondent, of the tracks, poles, wires and appliances for interurban tracks, poles, wires and appliances, but not as special benefits. The fact that, by the limited estate or interest taken by these condemna- tion proceedings, the obligation to continue the street railway service for some years will remain, is proper to be considered in mitiga- tion of damages, because it thereby appears that this condemnation pro- ceeding takep a less estate or in- terest in the street than would an interurban railway which, by its condemnation proceedings took the whole use of the street and extin- guished by condemnation the street railway franchise. On the other hand, the perpetual nature of the right acquired by this condemna- tion, extending indefinitely, beyond the time when the street railway franchise will expire, is also to be considered. In short these things are to be considered in the estimate of damages as conditions affecting the property and even when they go to ameliorate damages they should not be considered at all as special benefits." See also Union Trac. Co. v. Pfeil, 39 Ind. App. 51, 78 N. E. Rep, 1052, (1906); Indianapolis Trac. Co., v. Dunn, 37 Ind. App, 248, 76 N. B. Rep. 269, (1905) ; Carrell v. Muncie, H. & Ft. Ry. Co., 38 Ind. App. 700, 78 N. E. Rep. 254, (1906). § 448. j INTEEUEBAN BAIL WAYS. 74 I before the damages are paid, the right remains in the grantor.^"" An interurban railway company cannot, without the exercise of the power of eminent domain, enter upon an abutter's lot, cut his trees, grade through his property and construct its tracks; and equity will enjoin it from so doing. -^"^ In Missouri an inter- urban company is required to file a map covering its whole route, for the information of all concerned, and can condemn property only between the termini named in its articles of incorporation. ■'"^ It was held that where land had been condemned for a highway and afterwards abandoned, it reverted to the abutting o-nmer, and, before it could be used for the purpose of an interurban railway, damages must be paid therefor.^"* § 448. Acquisition of property by purchase — breach of con- ditions — Interurban railway companies generally have the power to acquire real estate by purchase, for their corporate purposes. ■"•* Questions have arisen as to the respective rights of the railway company and the vendor from whom it has purchased its right of way as to the interpretation of the agreement of sale. It has been held that if the company fails to perform a material condi- tion of the agreement of sale an action of ejectment may be main- tained by the vendor; but where the terms of the contract are >" Brickies v. Milwaukee Trac. Co , '" In Montgomery Amusement 134 Wis. 358, 114 N. W. Rep. 810, 14 Company v. Montgomery Trac. Co., L. R. A. (N. S.) 644, (1908). 139 Fed. Rep. 353, (1905), it was See also Sec. 201', ante. held that a traction railway could '"■ Freud v. Detroit Ry. Co., 133 acquire by purchase a right of way Mich. 413, 95 N.W. Rep. 559, (1903); through and into a private amuse- Kansas City Interurban Ry. Co. v. ment park, and that the park could Nelson, 193 Mo. 297, 91 S. W. Rep. be used as a legitimate terminus, as 1036, (1905). it was a legally incorporated town ""Kansas City Interurban Ry. Co. which had been surrendered to the V. Nelson, 193 Mo. 297, 91 S. W. park company. But it was held in Rep. 1036, (1905). In this case it Fayetteville Ry. Co. v. Aberdeen was held that a railroad cannot Ry. Co., 142 N. C. 423, 56 S. B. Rep. condemn various isolated pieces of 345, (1906), that where priority of property, but that it need not name right to a right of way has been all of the owners of land sought secured, under a statute, by prior to be condemned in an action location of the route, it can not be against a single land owner. defeated by a rival company agree- '" Miller V. Cincinnati Ry. Co., 43 ing with the owners for the location Ind. App. 540, 88 N. E. Rep. 102, of its railway, and purchasing the (1909). property from them. 742 THE LAW OF STttEET RAILWAYS. [§448. left open to construction, and the question is, do they amount to a condition subsequent or to a covenant, the tendency is to hold them to constitute a covenant; and if the terms used can reason- ably be construed to mean a covenant, the law will not presume that a forfeiture was intended. The intent to create a condition under which an estate granted may be forfeited must be clear, and a contrary intention may be gathered from the whole instru- ment.^"^ There are many contracts from the character and terms of which it may be implied that a party thereto will be relieved from the consequences of non-performance in some slight particu- lar, where the obligation is qualified or where the performance is rendered impossible without his fault.-^"® When a company has purchased a right of way, it has a right to make such excava- tions as it may deem necessary for economy, convenience and safety, and it is not liable to adjoining owners for damages from change of grade, if in so doing it does not invade their property '" Gratz V. Highland Ry. Co., 165 Mo. 211, 65 S. W. Rep. 223, (1901). This was an action of ejectment to recover a strip of land which had been conveyed to an electric rail- way. The contract of sale provided that the road should be constructed at a proper level, planked grad- ings to be constructed at two desig- nated points with proper cattle guards. No provision was expressly made for a forfeiture in case of fail- ure to fulfill the conditions. The court held that neglect to observe these covenants did not constitute a total failure of consideration. In this case the plaintiffs had made a grant of the right of way for a nominal consideration of one dollar. The real consideration for the con- tract was the construction of the road which was desired by the plaintiff and the court refused to eject the railway from the land of the plaintiff because certain inci- dental requirements were not per- formed. See Jasper Ry. Co. v. Curtis, 154 Mo. 10, 55 S. W. Rep. 222, (1899). See sec. 44, ante. '°° Buffalo Land Company v. Bel- levue Land Improvement Co., 165 N. Y. 247, 59 N. E. Rep. 5, (1901). In this case there was an agreement by the vendee to construct a rail- way upon the property and to run cars thereon as often as once every half hour from seven to eight P. M., each day, as such street railways are usually run. It was held that the fact that on certain days of an unusually severe winter cars failed to be run at the time named on account of heavy snows was not such a violation of the contract as to rescind it, and the court would not enforce a provision of the con- tract for a reconveyance of the land. See also St. Louis Elec. Ry. Co. V. Van Hoorebeke, 191 111. 633, 61 N. E. Rep. 326, (1901). See sec. 52, ante. § 449. J INTBRUBBAN RAILWAYS. Y43 rights.^'"' Where a railway corporation, Laving power under the law, enters into a contract with an owner for the purchase of land for its right of way, a court of equity can decree a specific performance.^"^ §449. Turnpikes — construction and operation on — In many parts of the country there still exist turnpikes or highways main- tained hy persons associated together for that purpose, and over which the public have a right to travel upon the payment of toll, and they frequently offer the shortest and most convenient routes between municipalities for the construction of interurban railways. ""Daraall v. Georgia Ry. Elec, Co., 134 Ga. 656, 68 S. E. Rep. 584, (1910). In this case it was held that where a grantor conveys to a rail- road company a strip of land for the purpose of a right of way for a state road and subsequently the same grantor conveys a lot of land by deed to the plaintiff In which the right of way is called for as the southern boundary of the lot con- veyed, the railway company has a right to make such excavations op- posite the southern boundary of the grantee's land for the adapta- tion of the grade of its line at that place to the grade of other portions of it3 tracks as may be dictated by economy, convenience and safety, and if in so doing it does not in- vade the property rights of the grantee, she cannot recover dam- ages for such acts. "'St, Louis Elec. Ry. Co. v. Vau Hoorebeke, 191 111., 633, 61 N. E. Rep. 326, (1901). In this case the defendant refused to convey be- cause the railroad bank did damage to the balance of his property. The court held that he should have taken this Into consideration when the contract was made, and that a railway company acquires the same rights and privileges under a pri- vate grant as when a right of way is acquired by condemnation where it has a power under the law to re- ceive by grant and to acquire by condemnation. In Jasper Elec. Ry. Co. v. Curtis, 154 Mo. 10, 55 S. W. Rep. 222, (1899), defendant agreed to convey a right of way to the railway company provided It would not construct its track within twenty-five feet of his house. There was also a verbal agreement that the defendant should never be charged more than five cents fare. This was not re- duced to writing as the representa- tive of the railway claimed that under its franchise it could not charge more. The company con- structed within fifteen feet of his house and refused to carry out the agreement as to the five cent fare, and the defendant thereupon re- fused to convey the property. In a proceeding for equitable relief, the court held that the defendant could show by parol that the provision for the five cent fare had, by rea- son of the above mistake and be- lief, been omitted from the con- tract, and the railroad company could have no decree until It had moved its tracks beyond the twenty-five feet limit and was will- ing to accept as part of the decree a limitation for a five cent fare. 74:4 THE LAW OF STEEET EAILWAYS. [§ 449. A traction railway cannot construct and operate its road upon a turnpike without the consent of the turnpike company unless the right of way thereon has been acquired by condemnation proceed- ings.^"^ Where its consent to the construction and operation of an interurban road has been given by a turnpike company, the railway company must comply with the conditions of the consent, and where it was confined to the carriage of passengers, the com- pany may be enjoined from carrying freight."" If the turnpike upon which a railway is constructed runs through a town, it is necessary to obtain also the consent of the highway com- missioners, because, under the law, they have the control over the turnpike as a highway, so far as its exercise is required foT the preservation of the rights and interests of the public."^ It has been held that where a turnpike company conveys a portion of its roadbed to a traction railway, the part con- veyed still remains a part of the highway and the ovmers of the '™ The Pennsylvania statutes pro- vide that a passenger railway com- pany can locate its tracks upon the bed of any turnpike providing it make compensation therefor. North Pennsylvania R. R. Co. v. Inland- Trac. Co., 205 Pa. St. 579, 55 Atl. Rep. 774, (1903). In Little Saw Mill Valley Turn- pike V. Federal Ry. Co., 194 Pa. St. 144, 45 Atl. Rep. 66, (1899), it was held that a street railway company which has operated a horse railway on the bed of a turnpike has corpo- rate power, when it constructs its electrical railway, to enter into a contract with the turnpike com- pany to compensate it for the in- creased burden imposed upon its property. See also Borden v. At- lantic Ry. Co., 18 N. J. L. J. 305, (1895); Ashland Ry. Co. v. Faulk- ner, 106 Ky. 332, 43 L. R. A. 554, (1898); but sea the dissenting opinion to the effect that a turnpike company cannot give consent to an electric railway to construct its tracks over its roadway. In Detroit Plank Road Co. v. De- troit Ry. Co., 103 Mich. 585, 61 N. W. Rep. 880, (1895), the plaintiff, Incorporated to construct and main- tain a plank road, entered into an .agreement with a traction railway company to construct its railway thereon. The court held that the use of the way by an electric rail- way for the transportation of pas- sengers in cars, in consideration of tolls to be paid to the railway com- pany, cannot be said to be a use consistent with the rights and fran- chises of the plank road company. On the question of turnpikes, see Elliott on Roads and Streets, (3d Ed.), chap. 4. ""Baltimore & Frederick Town Turnpike Road v. United Railway & Blec. Company, 93 Md. 138, 48 Atl. Rep. 723, (1901). ""In re Rochester Blec. Ry. Co., 123 N. Y. 351, 25 N. B. Rep. 381, (1890) ; as to the control of a plank road by local authorities see Freud V. Detroit Ry. Co., 133 Mich 413, 420, 95 N. W. Rep. 559, (1903). § 449. J INTEEUKBAN RAILWAYS . 745 fee are entitled to compensation for its use.^^^ Where a turnpike company has given a steam railroad company its consent tO' pass over it, it has heen held that the right acquired is not exclusive of the rights of the public or of such uses and purposes as those for which public highways and streets were established, among which are the establishment and operation of street railways;, therefore, a railroad company has no such property right in a crossing as will entitle it to compensation from a traction railway company crossing its tracks over the turnpike, if the progress of the car? of the former are not unreasonably impeded or interfered with.-^-*^^ The legislature has the power to authorize an electric railway to acquire a right of way over a turnpike by the exercise of the power of eminent domain/^* It has been held that an abutting '^'- Trotier v. St. Louis Suburban Ry. Co., 180 111. 471, 54 N. B. Rep. 487, (1899). In this case the inter- urban railway condemned a strip of land on either side of the turnpike company. The turnpike company had granted to the railway com- pany its right in the strips which the court held was only a right of way. The court held that under the Illinois statutes the consent of the highway commissioners must be obtained or compensation for the damage or injury to the public right for the ordinary uses of the high- way must be ascertained and paid. ™ Elizabethtown R. Co. v. Ash- land Ry. Co., 96 Ky. 347, 26 S. W. Rep. 181, (1894). "^'Baltimore Turnpike Co. v. Bal- timore Pass. Ry. Co., 81 Md. 247, 31 Atl. Rep. 854, (1895). In this case the defendant's predecessor had se- cured the right to maintain a horse railway over the turnpike by agree- ment with the turnpike company. It was held that the defendant, under the Maryland statutes (Act of 1894), authorizing condemnation proceedings provided the turnpike and railway company could not agree, could acquire by eminent domain the property of the turn- pike company including that em- braced in a contract with a horse railway company, for the purpose of constructing an electric railway. The court said: "Private property cannot be exempted from the su- preme right of eminent domain on the ground that it is held by a chartered right. And, of course, the same must be said in cases where it is held by virtue of a private con- tract.'' See also Trotier v. St. Louis Suburban Ry. Co., 180 111. 471, 54 N. E. Rep. 487, (1899). In Hinchman v. Philadelphia & West Chester Turnpike Co., 160 Pa. St. 150, 28 Atl. Rep. 652, (1894), it was held that where a turnpike is authorized by statute to purchase the road, property and franchises of a passenger railroad company, and is invested with the same powers, privileges and immunities as the railroad company, but with authority to remove the tracks, the turnpike company may, after the expiration of twenty-seven years, rebuild and operate the railroad. In such a case the removal of the rails, and the sale of the cars and property formerly belonging to the 746 THE LAW OF STREET RAILWAYS. [§ 449. property owner is not entitled to compensation for interference with the ingress and egress to and from his lot on account of change of grade by reason of the construction of an electric rail- way upon a turnpike where the ownersi of the turnpike had the statutory right to change the grade.^" §450. Grade crossings. — Where an interurban or suburban railway, whose tracks are located on the highway, is held not to be an additional burden thereon, its tracks may cross at grade the tracks of a commercial railroad or of a street railway without the payment of compensation therefor and any interference with that right may be enjoined/^® and this rule applies to such an railroad in pursuance of express legislative authority raises no im- plication of abandonment or other disability as to the future exercise of the franchises. "= Green v. City -and Suburban Ry. Co., 78 Md. 294, 28 Atl. Rep. 626, (1894). In this case the statute pro- vided for damages to property own- ers by reason of the turnpike pass- ing over their land. Under the stat- ute the turnpike company had the right to conform to certain require- ments as to grade which it had never done. The plaintiff did not own the title to the street. The court held that in absence of evi- dence to the contrary the presump- tion was that these damages had been paid. In Mayor of Baltimore V. Baltimore Pass. Ry. Co., 84 Md. 1, 35 Atl. Rep. 17, 33 L. R. A. 503, (1896), it was held that the munici- pality could not impose a franchise tax upon a traction railway com- pany constructed and operated upon a turnpike by authority from the legislature and by purchase of its right of way from the turnpike com- pany. The tax which the city sought to collect was by virtue of a law imposing a tax upon gross receipts of all street railways within the city limits, but the court held that the municipality could not col- lect a franchise tax where the rail- way was constructed upon private property and the grant of the fran- chise was not received from the municipality. "« Southern Ry. Co. v. Atlanta Ry. Co., Ill Ga. 679, 36 S. B. Rep. 874, 51 L. R. A. 125, (1900). The court held that when a railroad obtains its license to cross a public high- way it necessarily takes the same subject to any increased inconven- ience which may arise by reason of the demands or wants of the public for greater facilities for traveling, and that a street railway is intended for the convenience and benefit of the public on the street, and al- though it might cause inconveni- ence to the plaintiff. It did not im- pose an additional servitude on him. See also CJhicago Ry. Co. v. Whiting Ry. Co., 139 Ind. 297, 38 N. E. Rep. 604, 25 L. R. A. 337, (1894) ; South East Ry. Co. v. Evansville Ry. Co., 169 Ind. 339, 82 N. B. Rep. 765, 13 L. R. A. 916, (1907); Gal- veston Ry. Co. V. Houston Blec. Co., 122 S. W. Rep. 287, (Tex. 1909); C. & H. Ry. Co. V. C. H. & I. R. R. Co., 21 Ohio C. C, 391, (1898); Eliza- § 450.J iNTEEtlRBAN EAItWAYS. 747 intemrban crossing -within the limita of a municipality. ^^'^ Where, however, the interurban is not upon a public highway it ordinarily cannot cross the tracks of a commercial railroad company at grade without its permission or the exercise of the power of eminent domain.^^^ In a number of states the manner in which a railroad crossing shall be made is prescribed by statute or left to the direction of railroad commissioners or the court/^® bethtown Ry. Co. v. Ashland Ry. Co., 96 Ky. 347, 26 S. W. Rep. 181, (1894.) Under the constitu- tion of Kentucky (sec. 216) a rail- road company could be required to permit the tracks of another com- pany to cross its tracks at grade at any point where such crossing is "reasonable and feasible." Where the country is level in the vicinity of the proposed intersection and along the road from 1300 feet in one direction and 1500 feet In the other, and the approach of the train can be seen, it cannot be said that the proposed intersection is not reasonable or feasible, and it was held that an interurban railway comes under this provision. "'Pittsburg Ry. Co. v. Muncie Trac. Co., 91 N. E. Rep. 600, (Ind. 1910): "It being the law of this state that said interurban railway is not an additional burden upon said Main street, it had the right to lay its tracks on and along said street and across the main and passing tracks of appellant, with the consent of the board of trustees of said town, and without the con- sent and against the will of appel- lant, because the same was a legiti- mate use of said street under the laws of the state, which appellant was not entitled to enjoin." See also Cleveland Ry. Co. v. Urbana Ry. Co., 26 Ohio C. C. 180, (1903); Geneva Ry. Co. v. New York Cen- tral R. R. Co., 163 N. Y. 228, 27 N. E. Rep. 498, (1900). In the latter case the crossing was sought by an interurban railway over the tracks of a steam railroad in one of several towns through which its road ran. The court held the consent of the authorities of the town to cross the railroad to be sufficient without the authority of the other localities through which the railway ran. See Consolidated Trac. Co. v. South Orange Trac. Co., 56 N. J. Bq. 569, 40 Atl. Rep. 15, (1898), deciding that an interurban railway may cross the tracks of a street railway with- out compensation. 1" Chicago R. R. Co. v. Indian- apolis Trac. Co., 165 Ind. 453, 74 N. B. Rep. 513, (1905); Northern Central Ry. Co. v. Harrisburg Ry. Co., 177 Pa. St. 142, 35 Atl. Rep. 624, (1896). In Raritan River Ry. Co. v. Mid- dlesex & S. Trac. Co., 70 N. J. L. 732, 58 Atl. Rep. 332, (1904), an agreement was entered into between a traction company and a railroad company whereby the latter con- sented to the construction of the traction railway across Its line at grade, and settling, as between these parties, the mode of cross- ing. It was held that the agree- ment was not void because made without application to the chan- cellor to define the mode of cross- ing under the statute (P. L.. 1895, p. 462). See Wellsburg Ry. Co. v. Panhandle Trac. Co., 56 W. Va. 18, 48 S. E. Rep. 746, (1905). "'Dayton R. R. Co. v. Dayton 748 THE LAW OF STKEET RAILWAYS. [§ 450. The stattites providing for the crossing of one commercial rail- road by another are held, in some jurisdictions, to apply also Trac. Co., 26 Ohio C. C. 1, (1903); Louisville R. R. Co. v. Bowling Green R. R. Co., 110 Ky. 788, 63 S. W. Rep. 4, (1901) ; Raritan River Ry. Co. V. Middlesex & S. Trac. Co., 70 N. J. L. 732, 58 Atl. Rep. 332, (1904). Jurisdictions where railway cross- ings are under the direction of com- missioners. Geneva Ry. Co. v. New York Central R. R. Co., 24 App. Div. (N. Y.) 335, 48 N. Y. Supp. 842, (1897); Boston R. R. Co. v. Saco Valley Ry. Co., 98 Me. 78, 56 Atl. Rep. 202, (1903) ; In re Eastern Wis- consin Ry. Co., 127 Wis. 641, 107 N. W. Rep. 496, (1906). Chicago R. R. Co. v. Indianapolis Trac. Co., 165 Ind. 453, 74 N. B. Rep. 513, (1905). The statute of Indiana (Act of 1903, page 125) re- quires every interurban, suburban or street railway company to pro- vide interlocking devices and de- railing apparatus on all railroad crossings within six months after it commences to use such crossing. It was held that the General Assembly had the right to require Interlock- ing devices for the protection of the safety of the public. Wellsburg R. R. Co. v. Panhandle Trac. Co., 56 W. Va. 18, 48 S. E. Rep. 746, (1905), In West Virginia the courts are empowered to deter- mine the places at which and the manner in which a crossing may be made, when the companies are unable to agree. In determining this the court takes into considera- tion the situation of the parties, the public interests, the topography of the place, the connections to be made, the expense of making the crossing, and all material facts and circumstances affecting the public and the rights of the parties Imme- diately concerned, and not the choice and will of the party desiring it. Hence the court may decree a crossing other than the one de- scribed in the bill. Dubuque Ry. Co. v. Fort Dodge Ry. Co., 125 N. W. Rep. 672, (la. 1910). The Iowa statutes (§2020) provide that an Interurban rail- way may be constructed across a railroad when It may be "necessary in the construction of the same, and in such cases it shall so construct its crossings as not unnecessarily to impede travel or transportation upon the railway so crossed." The defendant interurban railway de- sired to cross the track of the plaintiff steam railroad at grade by an extension of Its existing track to reach certain mills. The mills could be reached without a crossing by building another spur, from a point over a mile distant, through rough land, which would require some two thousand feet of deep cuts. A subway crossing at the de- sired point would be several times more expensive to build than a grade crossing with an interlocking system, as proposed, and difficult to drain, the land being low and swampy. The crossing proposed, when obtained, independently of a similar crossing of another railroad about a mile distant, to which much switching was daily done on inter- change of freight, could not Interfere with plaintiff's east-bound traffic and rarely with west-bound trains. Held: The grade crossing was reasonably "necessary" and would not "unnecessarily impede travel" or "transportation on plaintiff's road." § 451.] INTEEUEBAN EAILWAYS. 749 to interurban raihvays.^^" It has been held that where a traction railway runs through several municipalities and obtains the con- sent of one of them to the construction of its line on the highway, within its limits, across the tracks of a railroad, such consent is suiScient and the failure to obtain the consent of the other municipalities is immaterial.^^^ And it has been further held that a municipality can appropriate land held by a railroad corporation, which is not employed in or needed for the proper exercise of its franchise, for the purpose of establishing a street across its lines, and can authorize the construction of an inter- urban railway thereover.^^^ § 451. Regulation by statute and ordinance While a mu- nicipal corporation has only such legislative power as is expressly granted or necessarily implied it may make reasonable regula- tions affecting the safety and well-being of the public.^^^ A number of municipal corporatinus have passed ordinances requir- ing interurban railways, passing through the city limits, to sto]i at all street conaers for the accommodation of passengers. Where a traction railway is engaged principally in interurban traffic such regulations have been held to be unreasonable on the ground that the regulations are rather for the convenience of the locality than for the public at large and interfere Avith the usefulness of an interurban railway in transportiag passengers for long distances in a short time.-'^* But it has been held that the legislature, in the "» Louisville R. R. Co. v. Anchors, St. 122, 84 N. B. Rep. 792, (1908) ; 114 Ala. 492, 22 So. Rep. 279, (1896) ; Westport v. Mulholland, 159 Mo. 86, Birmingham R. R. Co. v. Powell, 60 S. W. Rep. 77, 53 L. R. A. 441, 136 Ala. 232, 33 So. Rep. 875, (1902); (1900). In the latter case it was Blizahethtown Ry. Co. v. Ashland held that the extension of the Ry. Co., 96 Ky. 347, 26 S. W. Rep. limits of a municipality over a 181, (1894). But see Dayton & road on which a traction railway Union Ry. Co. v. Dayton Trac. Co., had heen laid under authority of 26 Ohio C. C. 1, (1903); Kansas the county would make such road City Ry. Co. v. Commissioners, 73 subject to the existing ordinances Kas. 168, 84 Pac. Rep. 755, (1906). forbidding the tearing up of streets ^'^ Geneva Ry. Co. v. New York without the consent of the munic- Central R. R. Co., 163 N. Y. 228, 57 ipal authorities, the ordinance being N. E. Rep. 498, (1900). a reasonable police restriction afCect- "' Cleveland Ry. Co. v. Urbana ing the safety and well-being of the Ry. Co., 26 Ohio C. C. 180, (1903). public. "' Townsend v. Circleville, 78 Ohio "' Townsend v. CirclevlUe, 78 Ohio 750 THE LAW OF STEEET RAILWAYS. [§ 451. exercise of the police power of the state, may, within rearonable limits, require a common carrier to stop its trains or cars, or some of them, at depots or stopping places, which the carrier is required to maintain, and that this rule applies as well to interurban cars as to the trains of commercial railroads.^^® It has been held that, while the local authorities have power to regulate the place and St. 122, 84 N. B. Rep. 792, (1908): "If every city or village through which a railway passes requires cars to be stopped at every street inter- section to take on and discharge passengers and to serve the purposes of a street railway, then its useful- ness as a means of interurban trans- pbrtation may be very much limited because so much time would be con- sumed in passing through the cities and villages that it will be no longer practicable for many to travel in that way." Village of Excelsior v. Minne- apolis Ry. Co., 108 Minn. 407, 122 N. W. Rep. 486, (1909) : "The prin- cipal business of the respondent is to furnish rapid transportation to passengers between various points around Lake Minnetonka and the people of the cities to the east and of the surrounding district to the west. In its business the respondent had the competition of two steam roads. If the principle for which the village contends would be adopted, respondent might be com- pelled to stop at so many street crossings as to seriously hamper, and possibly to destroy, its competi- tive power. It is equally opposed to public policy to secure to steam railroads the monopoly of local pas- senger traffic." In this case the court held that an interurban rail- way constructed on a company's own right of way does not, because incidentally crossing streets, occupy such streets for the purpose of oper- ating a railway thereon within the meaning of the ordinance requiring railway companies so occupying the streets to stop their cars at any street corner where a passenger may desire to enter or alight. But see Kinsey v. Union Trac. Co., 169 Ind. 563, 81 N. B. Rep. 922, (1907). '"'State v. Ogden, 112 Pac. Rep. 120, (Utah, 1910), construing a stat- ute requiring every railroad to fur- nish accommodations for the trans- portation of persons and property at any station or stopping place established for receiving and dis- charging passengers and freight, but holding that the carrier was not required to stop its cars at any particular place to discharge or re- ceive passengers, and that an inter- urban railway company which stopped its cars to receive and dis- charge passengers at resorts along its line of railway, but not at all resorts along its route, was not necessarily guilty of discrimination, and that the court, in determining whether or not the carrier was guilty of violating its duty to the public, could not consider the fact that it stopped its cars at a partic- ular resort where such stop was made by virtue of a special contract executed by it for a valuable con- sideration, but that where the car- rier refused permission to one per- son to enter or alight from its cars at a place where under similar cir- cumstances it extended the privilege to others it was guilty of an unlaw- ful discrimination. §452.J INTEEUEBAN RAILWAYS. 751 manner of making a connection between two interurban lines, they have no right to impose unreasonable conditions or condi- tions intended to defeat or prevent it;'^^* and that an interurban railway may be required by ordinance toi light street crossings/^^" but that the municipality has no power to prescribe by ordinance the qualifications of motormen and conductors upon street and interurban cars and to make a violation of such ordinance an offense punishable by fine.^^'^ It has been held that the legislature has authority to require interurban companies to construct such interlocking works and derailing apparatus at railroad crossings as win protect the public ;^^* and that a company may be required to provide separate accommodations for colored pas- sengers. § 452. Taxation. — ^A street railway operating wholly within a city is usually subject only to local taxation ; on the other hand, as commercial railroads extend far beyond municipal limits and through a number of different localities, the state usually re- serves to itself the power to tax such roads, including the rolling- stock as well as the roadbed."" The Iowa statutes relating to '^Waverly v. "Waverly Trac. Co., 132 App. Div. (N. T.) 56, 116 N. Y. Supp. 1074, (1909). «»a Columbus Ry. Co. v. Columbus, 10 Ohio N. P. (N. S.) 161, 8 Ohio Law Rep. 161, (1910); Ottawa v. Ohio Elec. Ry. Co., 13 Ohio C. C. (N. S.) 561, (1910). ^Columbus Ry. Co. v. Columbus, supra. "'Chicago R. R. Co. v. Indian- apolis Trac. Co., -165 Ind. 453, 74 N. E. Rep. 513, (1905). '" Louisville Ry. Co. v. Common- wealth, 130 Ky. 738, 114 S. W. Rep. 343, (1908). In this case it was held that under the Kentucky statutes an Interurban company must pro- vide "Jim Crow" cars, although a street railway need not; and the Interurban company cannot evade its duty by leasing its line to a street railway company. It was decided in State v. Cleve- land, 83 Ohio St. — , 93 N. E. Rep. 467, (1910), that "a statute may in- clude by inference a case not origi- nally contemplated when it deals with a genus within which a new species is brought," and that a stat- ute making it unlawful to wilfully throw a stone at a railroad car in- cludes an interurban or traction railway car, although such cars were not known or in use at tha time the statute was enacted. ""' Savannah Ry. Co. v. Mayor, 198 U. S. 392, 25 Sup. Ct. 690, (1905). But see San Francisco Ry. Co. v. Scott, 142 Cal. 222, 75 Pac. Rep. 575, (1904), holding that the clause of the constitution (sec. 10, article 13) providing for the assessment of all railroads operated In more than one county of the state does not include "street railroads," though operat- ing through more than one county. 752 Tim LAW OF SXllEET KAIL WAYS. [§ 452. interurban railways provide that all acts relating to railroads shall apply to and include interurban railways, and that an interurban railway within the limitsi of a municipality shall be subject to the laws governing street railways. The Supreme Court interpreted the statute to mean that as to those portions of an interurban railway within the city or town limits it shaU be held only to the rights and obligations of a street railway in respect to its opera- tion, but that the interurban railway is subject to taxation a^ provided by the statutes relating to commercial railroads, and not subject to taxation as a street railroad.^^^ Under a Massa- chusetts statute a tax was levied on the gross receipts for each mile of track computed upon an aggregate of the annual gross receipts. It was held that the computation must be based upon the trackage constructed on private rights of way, as well as upon that laid in the highway. ^^^ § 453. Obstnictions in right of way — The moving of a house along a public highway is an extraordinary use thereof and con- trary to the purpose for which the highway was laid out and dedi- cated, that is, for travel in the usual modes. The owner of a house cannot insist on moving it in the streets if it results in the destruc- tion of the property of others or any other material infringement "1 Cedar Rapids Ry. Co. v. Cum- In Mayor of Baltimore v. Balti- mins, 125 la. 430, 101 N. W. Rep. more Pass. Ry. Co., 84 Md. 1, 35 176, (1904); Waterloo Trans. Co. v. Atl. Rep. 17, 33 L. R. A. 503, (1896), Supervisors, 131 la. 237, 108 N. W. the state attempted to Include the Rep. 316, (1906). See also San defendant, a suburban railway com- Francisco Ry. Co. v. Scott, 142 Cal. pany, within the provisions of a 222, 75 Pac. Rep. 575, (1903); State statute imposing a tax upon the V. Minneapolis & St. P. Ry. Co., 130 gross receipts of, all street railways N. W. Rep. 71, (Minn. 1911). But within the city limits. Defendant see Cedar Rapids Ry. Co. v. Cedar had constructed on a turnpike, hav- Rapids, 106 la. 476, 76 N. W. Rep. ing purchased its own right of way 728, (1898). from the turnpike company, which ''■ Greenfield v. Turners Falls Ry. had since been Included within the Co., 187 Mass. 352, 73 N. E. Rep. 477, city limits. The court held that the (1905). In this case the mimic- tax was a franchise tax imposed In ipality contended that the tax was consideration of the privilege of a to be computed by dividing the franchise granted by the city to gross receipts by the number of lay the tracks on the city thor- miles of tracks operated in the pub- oughfares and the state had no lie streets only. right to impose a tax upon tracks § 454. J IM'EJBDEBAN BAILWAYS. 75 8 of their rights. Therefore, the courts will restrain the moving of a house across an electric railway in a street when it would result in stopping traffic for a considerable time or the destruction or injury of trolley wires.^^^ Where a traction company obtained a franchise to construct a railway along a highway, and a fence, maintained by an abutting owner in the highway, obstructed the free use of the company's franchise, it was held that the company had the right to remove it, without compensation to the owner.^^* A railway company authorized by the public authorities to lay tracks, erect poles and string wiresi upon the highway is by impli- cation authorized to remove obstructions, including shade trees, without compensation to the owner, when such removal is necessary for the construction and operation of the railway as located by the local authorities, but the company must give notice to the owner and allow him an opportunity to remove theva.^^^ § 454. Interfering electric currents. — In a recent Indiana case it was held that a railroad company, which operated a sys- tem of telegraph lines and electric signals, could not maintain an action to enjoin the operation of an electric railway occupying laid upon private property or turn- thereon. It is true tliat citizens pikes since ttie railway did not re- ordinarily have the right to use the ceive the grant from the state. streets to the same extent as the "= Williams v. Citizens Ry. Co., railroad company, but this does not 130 Ind. 71, (1891) ; Northern Tele- authorize them unreasonably to oc- phone Co. v. Anderson, 12 N. D. 585. cupy such streets, to the exclusion 98 N. W. Rep. 706, (1904) ; Kibbie of all others, or to prevent the pas- Telegraph Co. V. Landphere, 151 g^gg of cars. Of course, the latter Mich. 309, 115 N. W. Rep. 244, 16 L. ^^^ y^^ required to stop temporarily R. A. (N. S.) 689, (1908); Ft. Mad- ^^^ ^^^ j^^^j^^ ^^^ unloading of ison Ry. Co. v. Hughes, 137 la. 122, ^^^.^^^^ ^^^ ^^^ ^.^^ ^^^ domestic «\* ^;«^M^n?; '"; ^\t- ^- ^- !^ ^nd commercial purposes, for one S.) 448, (1908). In this case the court said: "Its facilities for rapid and convenient transportation have I, i 1,1. 1. J . J! erties abutting thereon. been established in pursuance of o- ^^ o- & law and the action of the city, at See sec. 42, note, ante. a large expense, and the value '"Georgetown Trac. Co. v. Mul- thereof ought not to be unduly im- holland, 25 Ky. Law Rep. 578, 76 paired and the carriage of passen- S. W. Rep. 148, (1903). gers interrupted by obstruction of "'Miller v. Detroit Ry. Co., 125 the street for any considerable time Mich. 171, 84 N. W. Rep. 49, 51 by the moving of large buildings L. R. A. 955, (1900). of the main objects in establishing streets is to afford access to prop- 754 THE LAW OF STEEET RAILWAYS. • [§ 454. an adjacent and parallel riglit of way, on the ground that the cur- rent used in moving the cars of the railway company interfered with the operation of the telegraph lines and electric signals of a railroad company claiming a prior right. ^^* § 455. Negligence — general statement. — The law of negli- gence applicable to street railways and their relations to the pub- lic and their passengers has been generally applied to interurban railways when operating their cars within municipalities in which the cars are operated at a moderate rate of speed and for the accommodation of local traffic upon the streets; but when the cars are operated in the open country at a high rate of speed, upon tracks substantially the same as steam railroads, the com- pany and its pa.ssengers are governed by rules analogous to those which are applied to steam railroads and their passengers.^^'' 1B6 rpjjg railroad company sought to enjoin the electric railway company from operating, unless and until it adopted devices which would pre- vent the currents used by it from interfering with the telegraph and signal system essential to the oper- ation of the trains of the commer- cial railroad which was in operation before the electric line was con- structed. The court denied relief because it did not appear that the electric company was "guilty of negligence or unsklllfulness or malice in the construction and operation of its line," that the character of the appliances, by which it was claimed the defendant could have prevented induction, was not disclosed, and that it did not appear that "the railroad company might not, by some inexpensive method, prevent the annoyance complained of." Lake Shore & Mich. South. R. Co. v. Chicago Ijake Shore & South Bend R. Co., 92 N. B. Rep. 989, (Ind. 1910). See also sec. 135, ante. "'McNab V. United Ry. Co., 94 Md. 719, 51 Atl. Rep. 421, (1902); Wosika V. St. Paul Ry. Co., 80 Minn. 364, 83 N. W. Rep. 386, (1901); Indianapolis Ry. Co. v. Schmidt, 35 Ind. App. 202, 71 N. E. Rep. 663, (1904); Riggs v. St. Francois Ry. Co., 120 Mo. App. 335, 96 S. W. Rgp. 707, (1906); Cedar Rapids Ry. Co. V. Cummins, 125 la. 430, 101 N. W. Rep. 176, (1904) ; San Francisco Ry. Co. V. Scott, 142 Cal. 222, 75 Pac. Rep. 575, (1904); Kinsey v. Union Trac. Co., 169 Ind. 563, (1907); Jef- fers V. Annapolis Ry. Co., 107 Md. 268, 68 Atl. Rep. 361, (1907). In the latter case it was held that a railroad is none the less a street railway within the limits of a mu- nicipality because when it leaves the city it becomes an interurban railway. In Cincinnati Ry. Co. v. Lohe, 68 Ohio St. 101, 67 L. R. A. 637, (1903), It is held that although an inter- urban railway is classed as a street railway under the statutes of Ohio, the law of negligence governing an §456.] INTEETIEBAN EAILWAYS. 755 § 456. Degree of care reqidred of travelers when crossing tracks — ^look and listen rule. — There is some conflict in the deci- sions of the courts of different states relating to the duty of trav- elers crossing the tracks of street railways. In some jurisdictions it is held that it is not negligence per se for a traveler to crossi « street railway track at a crossing without looking and listening, but that he is only required to use such care as a reasonably pru- dent man would exercise under the circumstances. In other jurisdictions the rule is the same as in the case of steam railroads, i. e., that the traveler is bound to look aud listen before attempt- ing to cross the tracks. In the latter jurisdictions the interurban railway is governed by the same rule. In the former jurisdictions that part of the interurban system which is operated in the city is usually governed by the law applicable to street railways^''' Where it is operated in the country the law governing commercial railroads applies. ^^® The reasons for the difference in the law interurban car outside of the munic- ipality is the same as in the case of a steam car. "'Cincinnati Ry. Co. v. Whit- comb, 66 Fed. Rep. 915, (1895); Cincinnati Ry. Co. v. Snell, 54 Ohio St. 197, 43 N. E. Rep. 207, 32 L. R. A. 276, (1896) ; Indianapolis Ry. Co. V. Schmidt, 35 Ind. App. 202, 71 N. B. Rep. 663, (1904); Fairbanks V. Bangor Ry. Co., 95 Me. 78, 49 Atl. Rep. 421, (1901); Bavidson v. Denver Tramway Co., 4 Col. App. 283, 35 Pac. Rep. 920, (1894) ; High- land Ave. Ry. Co. v. Sampson, 112 Ala. 425, 20 So. Rep. 566, (1895). See sees. 311, 312, 315 and 317, ante. In Wosika v. St. Paul Ry. Co., 80 Minn. 364, 85 N. W. Rep. 386, (1900), it was held that while the absolute rule as to look and listen does not apply to the populous parts of the city, the duty to look and listen, as in the case of ordinary commercial railroad cars, does apply in subur- ban and sparsely settled parts of the city where the street is prac- tically a country road. '""Fancher v. Fonda Ry. Co., 97 N. Y. Supp. 666, 111 App. Div. (N. Y.) 4, (1906); Cawley v. La Crosse Ry. Co., 101 Wis. 145, 77 N. W. Rep. 179, (1898); Phillips v. Washington Ry. Co., 104 Md. 455, 65 Atl. Rep. 422, (1906); Robinson v. Rockland Ry. Co., 99 Me. 47, 58 Atl. Rep. 57, (1904) ; Folkmire v. Michigan Ry. Co., 157 Mich. 159, 121 N. W. Rep. 811, (1909); McNab v. United Ry. Co., 94 Md. 719, 51 Atl. Rep. 421, (1902). In Hatcher v. McDermott, 103 Md. 78, 63 Atl. Rep. 214, (1906), it was held that the failure on the part of the plaintiff to look and listen for a car after the regular car had passed was contributory negligence which precluded a recovery for damages for Injuries received by being struck by an extra car which followed the regular car at an in- 756 THE LAW OF STREET EAILWAY8. [§ 456. applicable to commercial railroads and street railways in the latter jurisdictions are, that the commercial railroad occtipies its o\vn right of way, thus requiring less caution on the part of the engi- neers in the management of their trains, while the tracks of the electric railway occupy public highways, and that there are essential differences in speed, in the construction of the tracks, cars, and equipment, and in the relative frequency with which the cars are likely to approach pedestrians or vehicles, and that in congested districts conditions are such as to require greater watchfulness on the part of the motorman and greater vigilance in controlling his car, particularly at crossings where there is greater danger of collisions and other accidents. The respective terval of about fourteen seconds. The court said: "That being the law in reference to steam railroads, upon which trains are usually made up of a number of cars to which other cars may be added when re- quired, it is even more applicable to electric roads running through the country, as circumstances may often arise which require extra cars to accommodate the public." So the failure of a traveler to observe the requirement to avail himself of his full opportunity to listen for a car which he Itnew might cross the road from behind an obstruction which prevented him from seeing its approach was held to be contributory negligence in Heitman v. Pacific Elec. Ry. Co., 10 Cal. App. 397, 102 Pac. Rep. 15, (1909), but the court further said that it did not assume to hold that in all cases, and under all con- ditions, the crossing of an inter- urban electric railway is to be gov- erned by the same rules as those applied to steam railways. In Cable v. Spokane Ry. Co., 50 "Wash. 619, 97 Pac. Rep. 744, (1908), it was held that one about to cross a track of an interurban electric railway upon which trains are cus- tomarily operated at a high speed, must stop, look and listen for ap- proaching trains. See also Keenan V. Union Trac. Co., 202 Pa. St. 107, 51 Atl. Rep. 742, 58 L. R. A. 217, (1902). An Interesting question arose in Dugan V. Lyon, 41 Pa. Super. Ct. 52, (1909), in which the court held that the rule of "stop, look and listen" was not applicable to a pedestrian who was about to cross a street upon which automobiles are oper- ated. The court said: "It is not practicable to apply this doctrine to the use of automobiles on the public streets of a city. They have no prescribed course or direction or time of appearing, and are not to be distinguished from other convey- ances in respect to the rights of persons lawfully using the street. Pedestrians and persons using ve- hicles of other types have equal rights with those who use self- propelling vehicles on the public streets. A reciprocal duty of care exists among them. The measure of this duty is ordinary and reason- able care according to the circum- stances." §456.] INTEETJEBAN RAILWAYS. rights and duties of the traveling public and those engaged in operating interurban cars depend to a large extent upon location, equipment and other conditions of traffic. Greater care is re- quired of a traveler about to cross an electric track which is laid upon the company's own right of way and a greater necessity for looking and listening for an approaching car than would exist in a street where a lower rate of speed is maintained and the motor- man is required to keep his car under constant control.^*** It has been held that the failure on the part of a motorman on an inter- urban ear on a private right of way to give the usual signals when approaching a highway does not relieve a traveler thereon from the duty of looking and listening.^*^ But it was held that where the flagman beckons a traveler to go on across the tracks of an interurban railway and the regulations of the company require that a gong shall be sounded by the motorman upon approaching the crossing, the traveler may recover for injuries sustained by collision with the car, where the gong was not sounded, although he neither looked nor listened.-'*^ ""Robinson v. Rockland Ry. Co., 99 Me. 47, 58 Atl. Rep. 57, (1904); Phillips V. Washington Ry. Co., 104 Md. 455, 65 Atl. Rep. 422, (1906). In the latter case the court said: "In considering this question of contributory negligence it must be borne In mind that the injury did not occur on the streets of a city, but in the open country, where a higher rate of speed in the move- ment of electric cars is permissible than is allowable along the more crowded thoroughfares of a town. More caution was therefore de- manded of a person in crossing a track of an electric railway in the country than would have been necessary in the city. The use of no greater caution In the open coun- try than would have been requisite to constitute ordinary care and prudence in the city would not have been due care and caution on the part of the individual in approach- ing and going upon an electric rail- way crossing in the country. An act which would be prudent in the city might be glaringly negligent in the country; and hence the stand- ard by which contributory negli- gence is to be measured in the two instances necessarily varies with the changed conditions existing in the two dissimilar localities." See also Cable V. Spokane Ry. Co., 50 Wash. 619, 97 Pac. Rep. 744, 23 L. R. A. (N. S.) 1224, (1908); State v. United Rys. Co., 97 Md. 73, 54 Atl. Rep, 612, (1903) ; Wosika v. St. Paul Ry. Co., 80 Minn. 364, 83 N. W. Rep. 386, (1900); Snow v. Indianapolis Ry. Co., 93 N. E. Rep. 1089 (Ind. 1911). "* Cooper v. North Carolina Ry. Co., 140 N. C. 209, 3 L. R. A. (N. S.) 391, 52 S. B. Rep. 932, (1905). "'McNab V. United Rys. Co., 94 Md. 719, 51 Atl. Rep. 421, (1902). In this case the traveler was held 758 THE LAW OF STREET EAILWAYS. [§ 457. § 457. Traveler on tracks — relative rights and duties. — ^Where interurban tracks are laid upon the highway they are subject to the right of the public to use them. The rights of the public and of the company are mutual and the duty required of both is the exercise of a reasonable degree of care ; but in applying this rule due consideration must be given to the fact that the cars run over fixed tracks and cannot turn out to avoid a collision/** and that between street crossings the cars have the superior right of way."^ Where an interurban track is laid upon a street it is not negli- gence per se for a person to Avalk or drive on or near the track, but if he chooses to occupy the most dangerous part of the street he must exercise reasonable care to avoid being injured, and it is his duty to use his senses of hearing and sight for his protection.^*® guilty of contributory negligence, however, because she saw the car and took the chance of crossing in frort of it. '" In Klockenbrink v. St. Louis Ry. Co., 172 Mo. 678, 72 S. W. Rep. 900, (1902), the court said that, while the defendant had a superior right of way over the space covered by Its tracks, they were laid in a public highway where every citizen had a right to travel, and that fre- quently such tracks are necessarily occupied by other vehicles, there- fore, what would be ordinary care by the company In the country on a private right of way enclosed by fences might be gross negligence in a populous city. See also Moore v. Kansas City Ry. Co., 128 Mo. 229, 29 S. W. Rep. 9, (1895); Indiana Trac. Co. v. Pheanis, 43 Ind. App. 653, 85 N. E. Rep. 1040, (1909); Kerr v. Boston Elev. Ry. Co., 188 Mass. 434, 74 N. E. Rep. 669, (1905). In the lalter case a cyclist was riding along the street parallel with the track and so near that the car hit him. There was evidence that the car gave no warning. The court said: "Both he and the car were travelers upon the street with equal rights on such except as modified by the fact that the car could not leave the rail and consequently the plaintiff must not unreasonably interfere with its progress. The plaintiff had the right to travel on any part of the highway and could choose the path he took as he pleased, but the care required of him varied with the danger. If that path subjected him to liability to be hit by a passing car he was bound to use reasonable care to avert such a collision, but he had the right to expect cor- responding care on the part of the motorman." '" See sec. 303 ane. "•Moore v. Kansas City Ry. Co., 126 Mo. 265, 29 S. W. Rep. 9, (1895); Kerr v. Boston Elev. Ry. Co., J.ii8 Mass. 434, 74 N. E. Rep. 669, (190d); Sexton V. West Roxbury Ry. Co., 188 Mass. 139, 74 N. B. Rep. 315, (1905), in which it is said that: "If plaintiff voluntarily selected the most dangerous place on the road to walk it was unquestionably his duty to use ordinary care to avoid being injured. He must have known that any moment the car might ap- proach from behind, and therefore § 457.] INTEEURBAN RAILWAYS. 759 If an interurban railway track is laid upon a private right of way, those who enter thereon, with the knowledge of its character and the dangers incident thereto, assume the same risks as trespassers on the property of commercial railroads. A motorman operating a car on an enclosed right of way has a right to assume that the way is clear and to run his car at a high rate of speed without regard to trespassers, but whenever he sees a person on the track it is his duty to sound the gong or blow his whistle and to stop his car if he discovers that the trespasser is not aware of the approach- it was his duty to use his sense of hearing and sight for his protec- tion. . . . Where a party Is dis- covered on a track of a railway in full power of locomotion and no impedlnient to his escape, those on the car may well act on the as- sumption that he will use his senses for protection and get out of the way of danger before he is struck." In State v. Cumberland Ry. Co., 106 Md. 52d, 68 Atl. Rep. 197, (1907), the plaintiff stepped from the hub of his wagon standing so near an interurban car track as to bring his body in the path of passing cars without taking the precaution to ascertain whether or not a car was approaching. It was held he was guilty of such negligence as to pre- vent his recovery for injuries re- ceived from the passing car. In Neary v. Citizens Ry. Co., 110 App. Div. (N. Y.) 769, (1906), the plaintiff was struck while walking at night along the track of the de- fendant company in a country high- way. A passing steam railroad train made so much noise that he did not hear an approaching car, from which no warning was given. The court held that the question of the plaintiff's contributory negli- gence was for the jury, on the ground, as stated in a short opinion by Gaynor, J.: "The deceased had the right to walk along the track, Uut with that right went by law a duty for him to be ordinarily vig- ilant with eye and ear to know when a car was coming, and to be out of the way before it got to him, so as not to stop it, or even make it slow up, for it had the right of way. But considering that the elec- tric cars ran only about once an hour, and the distraction of the passing steam freight train along the side of the highway about six- teen feet away, it was too much to say as a matter of law that tEe deceased was negligent in not know- ing the electric car was coming up so close behind him, especially as no bell was rung or warning given on it." In Jordan v. Old Coiony Ry. Co., 188 Mass. 124, 74 N. E. Rep. 315, (1905), the court held that, when a man has at least the whole high- way. Including the sidewalk de- voted to the use of foot passengers alone, to choose from, it is not the act of a prudent man who wishes to pull down the leg of his trousers to select for that purpose a street railway track near a corner from which an electric car may emerge at any moment and strike him while he is stooping over in such a posi- tion that he cannot see It as it ap- proaches. 760 THE LAW OF STREET BAIL WATS. [§457. ing car.-^*® It has been held that the motorman whose car is approaching a private crossing, at a time when he has reason to believe persons are likely to come therefrom upon the highway, is bound to use towards such persons the same care that he would use towards persons crossing the highway at public crossings.-^*'' § 458. Assumption of risk — "Last Clear Chance" doctrine Where a traveler sees a rapidly approaching car and under- takes to cross the track it is usually held that he assumes the risk of being struck by the car; but, if the circumstances are such that an ordinarily prudent man might attempt to cross, the court will not say, as a matter of law, that the traveler is guilty of contributory negligence, but will submit that question to the jury. Within a municipality a man, in the exercise of reasonable care, might cross the tracks in front of an approaching car at street crossings when he knows that it is accustomed or required to stop before reaching the crossing. In the country districts, however, because the modem interurban cars run at a high speed and stop only at designated stations, a higher degree of care is required of a traveler when attempting to cross in front of an approaching car.^*® If, however, it be reasonably » Wade V. Detroit Ry. Co., 151 is bound to run its cars with due Mich. 684, 115 N. W. Rep. 713, regard to the safety of all people (1908). See also Floyd v. Paducah who have occasion, and equal rights Ry. Co., 23 Ky. Law Rep. 1077, 64 with it, in the use of the highway. S. W. Rep. 653, (1901J ; Williams v. ... At all times he Is bound Metropolitan St. Ry. Co., 114 Mo. to run his car in such a manner App. 1, 89 S. W. Rep. 59, (1905); that he may give warning of the Snow V. Indianapolis Ry. Co., 93 N. approach of his car to persons hav- E. Rep. 1089, (Ind. 1911). It was ing occasion to cross the highway, held in Levelsmeier v. St. Xouis anu that he may be able, like the Ry. Co., 114 Mo. App. 412, 90 S. W. driver of any other vehicle (having Rep. 104, (1905), that in an action in view the greater difficulty in reg- to recover for an injury to a trav- ulating his car), to avoid running eler by an interurban car the com- upon people who are attempting to pany could show that the injury oc- cross the highway, or who have curred upon a private right of way. occasion to go across the track in "' Duncan v. Union Ry. Co., 39 turning their wagons around or App. Div. (N. Y.) 497,500, (1899). turning out to avoid other vehicles." In this case the court said : "A trac- "' Gilliland v. Middlesex Trac. Co., tion railway occupying the highway 67 N. J. L. 542, 52 Atl. Rep. 693, !458.J INTERUEBAN RAILWAYS. 761 apparent to a motorman that a person upon the track is in danger of being struck by the car and is unoonscioua of the danger, it is his duty to avoid the injury if possible, and if by (1902). In this case a pedestrian rushed across the tracks in front of the car and would have escaped In- jury if she had not tripped over a rail projecting six inches above the ground. The court held that she was imprudent in attempting to cross the tracks when the danger was obvious. In Brown v. Eliza- beth Ry. Co., 68 N. J. L. 618, 54 Atl. Rep. 824, (1902), the Injury oc- curred at night and the plaintiff testified that he saw lights up the hill. The court said: "Prudence required him then to wait a suffi- cient time to enable him to observe whether the lights which he saw were those of street lamps on the side of the avenue or were those of a car in the middle of the ave- nue." See also Dechene v. Green- field Ry. Co., 188 Mass. 423, 74 N. E. Rep. 600, (1905) ; Cincinnati Ry. Co. V. Stable, 37 Ind. App. 539, 76 N. B. Rep. 551, (1905); Quinn v. Boston Elev. Ry. Co., 188 Mass. 473, 74 N. E. Rep. 687, (1905) ; Norton v. Inter- urban Ry. Co., 98 N. Y. Supp. 216, (1906); Snow v. Indianapolis Ry. Co., 93 N. E. Rep. 10S9, (Ind. 1911). McNab V. United Rys. Co., 94 Md. 719, 51 Atl. Rep. 421, (1902). In this case the court said: "It is not because of the difference in the motive power employed upon a steam and an electric railway, but because of other circumstances, that acts which would be regarded as acts of contributory negligence in the one instance would not be so treated In the other. It is far more dangerous to attempt to cross in advance of a car moving at a high rate of speed, whether propelled by steam or electricity, than to make a like attempt when the car is mov- ing along the streets of a city at a very moderate rate of speed. The difference in the method of the con- struction of the tracks in the coun- try from that in the city; the very marked difference of speed attained in the one locality from that toler- ated in the other; the adaptation of the city streets to the uses of pedes- trians and vehicles of all kinds, as well as to the cars, are all circum- stances wholly apart from what the motive power propelling the cars may be, which must be considered in determining whether a given act is or is not an act of contributory negligence. Thus to drive across a street car track at the intersection of two streets, in a street where the rails are flat and afford no resist- ance, might not be an act of con- tributory negligence even though the approaching car, going at the rate of six miles an hour, but re- quired to stop or slow up on the near side of the intersected street, was but forty feet distant, but to make the same attempt in the coun- try where "T" rails themselves in- terpose obstructions and where the car is running at the same high rate of speed which cars propelled by steam attain, would be just as clearly an act of contributory negli- gence as it would be were the car being moved by steam power in- stead of electricity. . . . It is the relation which the act done bears to the final result In the light of all the attendant circumstances that determines whether the act so done is or is not one of negligence or of contributory negligence." 762 THE LAW OF STEEET RAILWAYS. [§ 458. the exercise of reasonable care he could have avoided the accident the company will be held liable for damages so caused. This is known as the "Last Clear Chance" doctrine and is the law in a number of jurisdictions,"^ the controlling question being, But see Woodland v. North Jersey St. Ry. Co., 66 N. J. L. 455, 49 Atl. Rep. 479, (1901), in which the court said: "The rules that regu- late the crossing of steam railroads have little application here. It is contended that the plaintiff did not look, as he should have done, before crossing. But the rule is, as to crossing a roadway, that one must use his powers of obser- vation in respect to other passers thereon, and a reasonable judgment to avoid a collision. He is not re- quired to extend his observation to an approaching car, however dis- tant, but only to the distance within which vehicles proceeding at cus- tomary and reasonably safe speed would threaten his safety." The court further said: "He had a right to assume that the car was fur- nished with appliances to reduce speed and to stop, and that it would not continue to run at a rate of speed incompatible with the safe use of the street by other vehicles. Nor was he bound to refrain from crossing for fear that the motorman would not reduce the speed." '" Indianapolis Ry. Co. v. Schmidt, 35 Ind. App. 202, 213, 71 N. E. Rep. 663, (1904); South Covington Ry. Co. V. Herrklotz, 104 Ky. 400, 47 S. W. Rep. 265, (1898); Stahman v. Atlantic Avenue Ry. Co., 155 N. Y. 511, 50 N. E. Rep. 277. (1898) ; Wad- del V. Metropolitan Ry. Co., 113 Mo. App. 680, 88 S. W. Rep. 765, (1905) ; Sexton V. West Roxbury Ry. Co., 188 Mass. 139, 74 N. E. Rep. 315, (1905) ; Klockenbrink v. St. Louis Ry. Co., 172 Mp. 678, 72 S. W. Rep. 900, (1902); Williams v. Metropolitan Ry. Co., 114 Mo. App. 1, 89 S. W. Rep. 59, (1905). In Wade v. Detroit Ry. Co., 151 Mich. 684, 115 N. W. Rep. 713, (1908), it was held that a motorman operating a car on a private right of way closed by fences is under no obligation to keep a lookout for trespassers, his duty being to sound his gong or blow his whistle when he ees trespassers on the track, and to take all precautions possible to stop his car on discovering that they are not aware of its approach. In Floyd v. Paducah Ry. Co., 23 Ky. Law Rep. 1077 64 S. W. Rep. 653, (1901) a deaf mute was run down by a car upon a private right of way. The court in dis- cussing the case said: "When he [the motorman] saw the man in front of him on the track he had a right to suppose he would get out of the way, but when he saw he was unaware of the approach of the car and that the sound of neither gong nor whistle affected the man, it was his duty to know what was apparent to a person of ordinary care, situated as he was, and he should have taken such steps as ordinary care required to get his car under control. After he saw the man on the track, and perceived his danger, he was required to exer- cise ordinary care for his safety." In this case it was held that evi- dence of the admission of the con- ductor immediately after the acci- dent that he saw the man one hun- dred and fifty feet away, was ad- rnissible as part of the res gestae § 459.J INTEETJEBAN EAILWAYS. 763 in most instances, one of fact, i. e., what was the proximate cause of the injury. § 459. Injury to animals on track — duty to fence In a num- ber of states interurban railway companies are required by statute to fence their rights of way and provide cattle guardsi across them.^'" In some jurisdictions they are held to be included under the general railroad laws requiring that their rights of way be fenced.^"^ A motorman, when operating his car through a farming district where cattle are likely to stray on the tracks, is bound to keep a vigilant lookout ahead and to exercise a degree of care proportionate to the dangers naturally to be apprehended.-'^^ It has been held that the failure to maintain fences and cattle-guards is not negligence per se and that the plaintiff must show that the injuries to his animal were caused by negligence on the part of the railway company.-'^* To per- mit stock to run at large in country districts is not such con- and sufficient to take the case to the jury. In Moore v. Kansas City Ry. Co., 126 Mo. 265, 29 S. W. Rep. 9, (1895), ,it was held that if a traveler knows his horses are afraid of cars and that they are likely to approach at any time, It is his duty to remove them to a safe distance from the railroad track, providing he has the opportunity to do so, and that. If he fails to do so, he is guilty of contributory negligence, but if the motorman of an approaching car sees the plaintiff in a perilous posi- tion, or by the exercise of due watchfulness and care could see him and check the car and so avoid the injury and yet falls to do so, the defendant company Is liable. But see Cincinnati Interurban Ry. Co. V. Haines, 12 Ohio C. C. (N. S.) 17, (1909). See also sec. 380, ante. "°Riggs V. St. Francois Ry. Co., 120 Mo. App. 335, 96 S. W. Rep. 707, (1906). In this case the traction railway was subject to double dam- ages for failure to fence its right of way through unenclosed fields. See also Indianapolis Trac. Co. v. Smith, 42 Ind. App. 605, 86 N. B. Rep. 498, (1908); Campbell v. Indianapolis Trac Co., 39 Ind. App. 66, 79 N. E. Rep. 223, (1906). "' Little Rock Ry. Co. v. Newman, 77 Ark. 599, 92 S. "W. Rep. 864, (1906). See also Tola Ry. Co. v. Jackson, 70 Kan. 791, 79 Pac. Rep. 662, (1905), In which it was held that where a railway passes through an enclosure it Is the duty of the company not only to build fences on each side of the track, but also to complete the enclosure by build- ing end fences and cattle-guards across the right of way where the road enters and leaves the enclosure. "' Little Rock Trac. Co. v. Hicks, 79 Ark. 248, 96 S. W. Rep. 385, (1906). See sees. 306 and 307, ante. "' Campbell v. Indianapolis Trac. Co., 39 Ind. App. 605, 79 N. E. Rep. 764 THE LAW OF STREET EAILWAYS. [§ 459. tributory negligence as will prevent a recovery for injuries caused by the negligence of an interurban railway.^^* When, however, the right of way has been properly fenced and the cattle stray thereon through a gate in the private crossing of the owner, which had been left insecurely fastened by others, the railway company is not liable for injury to stock, in the absence of its negligence in operating the car, where there is no agreement on the part, of the company relieving the owner from the duty of maintaining the gate.^^' § 460. Injuries from electric shock — third-rail ^It has been held that a presumption of negligence on the part of a railway company arises when a person receives a shock from coming in contact with one of its rails which is charged with electricity. ■'"^ In an interesting Washington case a passenger was wrongfully ejected from an interurban car in the open country and returned 223, (1906); Little Rock Ry. Co. v. Newman, 77 Ark. 599, 92 S. W. Ren. 864, (1906). But in Mobile Ry. Co. v. McKay, 163 Ala. Ill, 50 So. Rep. 1035, (1910), it was heiu that although there is usually no presumption of negligence on the part of an inter- urban from the mere fact of the killing, where there was a straight stretch of track for several blocks and the car was derailed about ten feet from the mule, the position of the car and carcass was such that it presented a prima facie case of negligence. The court said: "This court has said that when an animal is seen near the track it Is not necessary to stop or check unless the circumstances indicate that the animal is likely to move on the track, but also that the likelihood of its moving on the track would depend, of course, upon the circum- stances, proximity, or remoteness from the track, what it is doing, and the disposition it manifested at the time; and this likelihood de- pendent on the circumstances is for the jury to decide." '" Little Rock Ry. Co. v. Newman, 77 Ark. 599, 92 S. W. Rep. 864, (1906); Little Rock Trac. Co. v. Hicks, 79 Ark. 248, 96 S. W. Rep. 385, (1906). In this case it was held that permitting a cow to run at large outside of the "stock limit" was not contributory negligence. "° Indianapolis Trac. Co. v. Smith, 42 Ind. App. 605, 86 N. E. Rep. 498, (1908). ""Smith V. Manhattan Ry. Co., 112 App. Div. (N. Y.) 202, 98 N. Y. Supp. 1, (1906). In this case the court held that while the facts raised a presumption of negligence, the defendant could exonerate itself by rebutting the presumption, and where it had given testimony that the shock could not be received ex- cept under certain conditions, which did not exist in that case, it was error for the court to charge that the plaintiff could recover whether the defendant had exonerated itself or not. § 460.] INTEETJEBAN EArLWAYS. 765 to the city from which he started, walking upon the ties between the tracks, and in trying to leave the tracks to avoid a dangerous bridge he came in contact with an unprotected third rail and received a severe shock; the plaintiff testified that he did not know of the existence of the electrically charged rail and that he was not warned of the danger or directed to a safer route by which he could reach his destination. The court held that he was not a trespasser although he was walking upon the rail- way's enclosed right of way along the tracks, as he had pur- chased his ticket and was upon the pi-emises by the invitation and consent of the company, and that its agents must have known, from common experience, that the plaintiff would prob- ably use the track in returning to the city from whence he came, and, therefore, they should have advised him of the danger of such a course.^"' Where a member of a railway gang, under the "' Anderson v. Seattle-Tacoma In- terurban Ry. Co., 36 Wash. 387, 78 Pac. Rep. 1013, (1904). In this case Hadley, J., said: "It cannot be said that appellant's presence upon re- spondent's premises was initiated by trespass. He had, by contract and for a consideration, first en- tered upon the premises, and had been carried as a passenger from Seattle to Tacoma. The same con- tract called for his transportation from Tacoma to Seattle; and he therefore not only had a right to be upon the premises, but was there by the invitation and consent of re- spondent. The conduct of respon- dent's agents and employees, in forcing him to leave the car, is un- explainable in the light of the evi- dence in the record. Certainly the demand for speed in modern travel does not call for such zeal on the part of the employees of a railway company that time shall not be given a passenger to get aboard when he has already paid his money, in the usual manner, for his transportation. The fact remains in this instance, however, as ap- pears from the record, that just that thing occurred, and appellant was forced to step from the car upon respondent's right of way. He was, therefore, not a trespasser ah initio, and certainly not one up to the time he was left, in the night time, at a strange place upon re- spondent's premises. Being thus left upon the premises where he had a right to be, did he thereafter be- come a trespasser? It is true, he was left at a station surrounded by farm houses, but that was only par* of the premises to which he had been invited by respondent, when it accepted his money and agreed to carry him as a passenger. He had the right to pass over the entire right of way in respondent's cars, but that right had been denied him. When he was left by respondent, he was not directed to leave its premises, but was merely forced from Its cars, and deposited upon its right of way. He was not in- formed how, in the night time, he could find his way over the ordinary 766 THE LAW OF STREET EAILWAYS. [§ 460. direction of a foreman, was removing snow from the tracks with a shovel having an iron scoop, and was injured by an electric shock from a short circuit caused by the scoop coming in contact, at the same time, with the third rail which carried the electricity and a bolt projecting from a tie which communicated with the highways. Being thus left upon the premises, under all these circum- stances, did he have no rights greater than those of an ordinary trespasser, when he moved along respondent's track? It is true he was not invited upon the premises as a pedestrian, but he was invited to come for business purposes, and we believe, under all the conditions, that he did not become a trespasser in the really tortious sense of that term, even though some elements of technical trespass may have been present. He was, in any event, en- titled to the reasonable protection from injury which one human being owes to another when placed in like situation. Respondent's agents must have known that, from common ex- perience, the thing appellant was most apt to do was to take the track back to Tacoma. They should, therefore, have seen that he was advised of the danger of such a course because of the unusual and imperceivable danger to an unin- formed traveler. Doubtless he was required to take the risk of all ordi- nary dangers attending a pedestrian upon a railway track, such as con- tact with moving trains, falling through bridges, and other usual dangers. But since he came upon respondent's premises rightfully, and did not come as a wilful tres- passer, we think he was not re- quired to take the risk of such an unusual and hidden danger as this third rail. Its character was un- known to him, and its powerful, death-dealing force was entirely concealed. . . . 'The great force that was being carried over the wires gave no evidence of its exist- ence. There was no means for a man of ordinary education to dis- tinguish whether the wire was dead or alive. It had all the appearance of having been properly insulated. From this fact there was an invita- tion or inducement held out to Clements to risk the consequence of contact' Clements v. Louisiana Electric Light Co., 44 La. An. 692, 11 South. 51, 32 Am. St. 348, 16 L. R. A. 43, 4 Am. Elec. Cases 381, 386. In the case at bar, however, the dangerous agency was not a wire which, when strung upon insulators, may ordinarily be supposed to be charged with electricity, but it was a common rail, bearing only the appearance of an ordinary rail of a railway track, and disclosing no connective relations which would render it more dangerous than an ordinary piece of iron. If modern transportation methods involve the use of such concealed, unprotected, dangerous and deadly devices where persons of common experience may be expected to come in contact with them, we believe those who use them should not escape the liability unless they exercise such a degree of care to warn and protect those who are injured as the circum- stances and surroundings reason- ably require. Whether such care is exercised in a given case, becomes a question of fact for the jury. In a case of this kind, the conditions are out of the ordinary and call for § 461.J INTEEUEBAN EAILWAY8. 767 earth, it was held that a verdict for the plaintiff was justified where it appeared that, while knowing that the third rail car- ried a current, the plaintiff had no knowledge of short circuits and was never instructed concerning the danger thereof outside of a general warning to be careful; and that it was the duty of the company to provide plaintiff with a broom or wooden shovel, especially in the absence of instructions as to the danger.^®® § 461. Parks — Where a company advertises an attraction at its park, it is an invitation to the general public, and the company is bound to exercise due care to render the premises reasonably safe, and if the attraction is dangerous in its character, the company is liable for injury caused thereby although the person injured did not travel to the park over the company's care commensurate therewith. To the uninformed, the danger In this rail was as completely hidden as is the danger in the case of a spring gun. It is true, spring guns are usually set for the express purpose of inflicting injury or taking life, while this rail was placed without such intention, but to he applied to the useful purposes of commerce and transportation. To one ignorant of the presence of the danger, how- ever, injury follows alike as the re- sult of coming in contact with either device." '" Smith V. Manhattan Ry. Co., 112 App. Div. (N. Y.) 202, 98 N. Y. Supp. 1, (1906). In this case the court said: "Undisputed evidence shows it to be a fact, that there was ordinarily no danger in touch- ing the third rail. The only danger was in touching it with iron which at the same time touched another iron connected with the ground. The evidence shows that no injury would result from bringing even an iron shovel in contact with the third rail so long as It did not at the same time come in contact with an- other iron connected with the track. This was not an obvious danger. It was one which a layman would not be likely to know or discover unless specially instructed, or un- less he happened to observe the effect. According to the testimony of the plaintiff he was instructed to be careful, but he was not warned of this danger and he had not dis- covered it by observation. It seems that wooden shovels or brooms which were used for removing the snow from the rails are non-con- ductors and that rubber gloves were worn to prevent a shock, but while the plaintiff doubtless knew that wooden shovels and rubber gloves were sometimes used, he did not, according to his testimony, know the reason why they were thus em- ployed. The foreman of the defend- ant over plaintiff was familiar with this danger and testified that he warned plaintiff and the other mem- bers of the electrical repair gang thereof. Manifestly it was the duty of the defendant to furnish plaintiff with a broom or a wooden shovel, especially in the absence of instruc- tions as to the danger of causing a short circuit." 768 THE LAW OF STREET RAILWAYS. [§ 461. line; and it has been held that where a person, who was attending a balloon ascension at such a park, was killed by the falling of the supports of the balloon during inflation, the com- pany was responsible for his death although he had walked to the park and no admission was charged. In this case the balloonist had entered into a contract with the company for several balloon ascensions and the court held that when the owner of premises which are under his control employs an in- dependent contractor to do work upon them, which, from its character, is likely to render the premises dangerous to persons who may come upon them by the invitation of the owner, the owner is not relieved by reason of the contract from the obliga- tion of seeing that due care is used to protect them.^^* It has been held, however, that where the railway owns a pleasure resort and leases a switchback upon which a person is injured, the proprietor of the resort does not become an insurer against accidents to persons patronizing the lessee or become liable for his carelessness although the company has advertised the switch- back as one of the attractions of the park. The court dis- tinguished this case from those in which some dangerous sport is advertised.^®" § 462. Degree of care required of carrier — res ipsa loquitur As has been elsewhere stated, it is the duty of a common carrier of passengers to exercise a very high degree of care to prevent injury to its passengers,^*^ and it is liable for injury to them "' Richmond & Manchester Ry. or merry-go-rounds and roller coast- Co. V. Moore, 94 Va. 493, 27 S. E. ers or to serve refreshments. The Rep. 70, (1897). proprietors of the resort do not "» Knottnerus v. North Park St. thereby become insurers against ac- Ry. Co., 93 Mich. 348, 53 N. W. Rep. cidents to persons patronizing the 529, 17 L. R. A. 726, (1892). In this lessee, or become liable for his care- case the court said: "It cannot be lessness. It is not uncommon for said that by granting permission to street railways, steam boats and operate a switchback at North Park railroads to advertise attractions on defendant was guilty of negligence, their routes. They do not thereby nor that it was defendant's duty to become insurers of the persons guard it or exclude the public from while in attendance upon the at- its use. It is not unusual at places traction or responsible for the care- of resort to lease to others certain lessness of the operators." privileges, viz.: to operate swings ^'" See sees. 328 and 330, ante. §463.] INTBEUJJBAN EAILWAYS. 769 by reason of its negligence although the carriage is gratuitous, but it may contract against liability in such cases."^ Proof of the derailment of a car and the resulting injury to a passenger thereon raises a presumption of the carrier's negligence amount- ing to prima facie proof, making it incumbent on the carrier to rebut the presumption by proving that the accident could not have been prevented by the exercise of the highest practical care and diligence/®^ It was held, however, that where the plaintiff was a passenger on an interurban car which collided with a street car at a crossing, no presumption of negligence on the part of those in charge of the street car arose from the mere fact of collision, as no relation of passenger and carrier existed between the passenger on the interurban car and the street rail- way company.^®* § 463. Duty to provide safe place to alight It is the duty of the carrier of passengers to exercise due care to see that the place where its cars stop to permit passengers to alight is reasonably safe for that purpose, or, in case it becomes necessary to invite passengers to alight where there is danger of injuiy, to give warning or assistance, or both if necessary, to prevent injury; and the passenger has a right to assume, in the absence In Reynolds v. Richmond Ry. Co., '" Indiana Union Traction Com- 92 Va. 400, 23 S. E. Rep. 770, (1895), pany v. McKinney, 39 Ind. App. 86, the court said: "A common carrier 78 N. E. Rep. 203, (1906). The acci- 01 passengers Is bound to use the dent in this case was caused by the utmost care and diligence for the derailment of an interurban car due safety of passengers and is liable to the rapid speed with which it for an Injury to passengers coca- ran into an open switch upon a sioned by the slightest neglect, private right of way. See also against which human prudence and Goodloe v. Metropolitan Ry. Co., 120 foresight might have guarded." See Mo. App. 194, 96 S. W. Rep. 482, also Pell V. Joliet Ry. Co., 238 111. (1906); Sullivan v. Brooklyn Heights 510, 87 N. B. Rep. 542, (1908). Ry. Co., 117 App. Div. (N. Y.) 784, "'Indianapolis Traction Company 102 N. Y. Supp. 982, (1907), holding v. Klentschy, 167 Ind. 598, 79 N. E. that a presumption of negligence on Rep. 908, (1907). In this case the the part of the railway company traction company invited the mem- arises where a person receives a bers of a convention, among whom shock from stepping on a rail was the plaintiff, to take a free charged with electricity, trolley ride. The court held that '" Kimic v. San Jose-Los Gatos the acceptance of the invitation con- Interurban R. Co., 156 Cal. 379, 104 stituted the plaintiff a passenger. Pac. Rep. 986, (1909). 49 Y70 THE LAW OF STREET RAILWAYS. [§ 463. of notice to the contrary, tHat the company has stopped its car where, by exercise of due care, he may alight in safety. ■'^^ And so it has been held that though an interurban railway company, whose cars stop at highway crossings for the accommodation of passengers, is not required to provide a passenger platform at such crossings, it is required to exercise reasonable care to enable passengers to alight with as little danger as practicable, and if a passenger is invited to alight at a place more hazardous than that at which the car might conveniently have stopped, the com- pany is negligent.-'®^ Where the interurban railway company '" Tilden v. Rhode Island Ry. Co., 27 R. I. 482, 63 Atl. Rep. 675, (1906) ; Bass V. Concord Ry. Co., 70 N. H. 170, 46 Atl. Rep. 1056, (1900). In Indiana Trac. Co. v. Jacobs, 167 Ind. 85, 78 N. E. Rep. 325, (1906), the plaintiff alleged that the de- fendant failed to provide a platform or safe or convenient place of alighting, and ran its oar beyond the usual stopping place so that it was a sheer jump of thirty to thirty- six inches to the ground from the lowest step, that she was informed that her destination was reached upon the stopping of the car, and that the conductor failed to assist her in alighting. The court said: "In respect to the failure to provide a platform in the street and run- ning the car beyond the usual place, the complaint fails to disclose a cause of action, but the remaining allegations, taken together, make a suflBcient showing of negligence." See also Topp v. United Ry. Co., 99 Md. 630, 59 Atl. Rep. 52, (1904); Joslyn V. Milford Ry. Co., 184 Mass. 65, 67 N. B. Rep. 866, (1903). But it was held in Thompson v. Gardiner Ry. Co., 193 Mass. 133, 78 N. E. Rep. 854, (1906), that where a traction railway car stopped upon a public highway, the conductor had a right to assume that a 'passenger, alighting in a country town, was familiar with the existence of a gutter one foot deep between the track and the sidewalk, and the con- ductor was not guilty of negligence in failing to notify her thereof, such gutters being not uncommon fea- tures of streets in country towns. "^ McGovern v. Interurban R. Co., 136 la. 13, 111 N. W. Rep. 412, (1907). The court said: "While it was not the duty of defendant oper- ating a car which, for the accom- modation of passengers was stopped at any highway crossing where they desired to alight, to provide a pas- senger platform at each of such crossings, it was its duty to exer- cise at least reasonable care to en- able plaintiff to alight with as little danger as practicable, and if the car was stopped, and plaintiff invited to alight, at a place more hazardous than that at which the car might conveniently have been stopped, then the defendant was negligent. . . . A distinction should be taken into account between street cars operated in the streets of a city which are stopped on signal, and interurban cars operated through the country, and which may be stopped at highway crossings. Cars of the latter description are stopped at any highway designated by the passenger, but the particular place in the highway at which the car § 463.J INTEEUEBAN EAILWAYS. 771 operates its line over a right of way which it owns, or over which it has exclusive control, care should be exercised to stop the car at as safe a place as can be reasonably selected, siich as highway crossings 167 shall be stopped is under the con- trol of the conductor or motorman, and care should be exercised to stop the car at such place as is reason- ably suitable for the purpose, as safe a place as can be reasonably selected. . . . The passenger alighting from a street car does so at a place selected by him through his signal, and may reasonably be required to look out that the street is in such condition where he at- tempts to step off that it is safe to use it; but a passenger on an inter- urban car, which is stopped for him to alight at a highway crossing, may reasonably assume that the car has been stopped in the portion of the highway where he is invited to alight, unless warned of danger, and is not conclusively negligent in ac- cepting the invitation to alight at a place which is in fact unsafe. The defendant owed the public duty to plaintiff to furnish her a safe place to alight at her destination fixed in the contract of transporta- tion, and was not relieved of that duty by knowledge on the part of the plaintiff that it had not pre- viously been discharging that duty as to herself or other passengers, stopping at that destination. That this is so must be self-evident, for, were it otherwise, the defendant could relieve itself from the conse- quences of a violation of its duty to its passengers by so continuously and notoriously violating such duty that the passengers would be charged with notice that the duty would not be observed. . . It may be conceded that the defendant was not hound to maintain a pas- senger platform at every highway crossing where it stopped its cars to enable passengers to alight at their request, and that it would be im- proper to instruct the jury broadly, in every case, that there was a duty on the part of defendant to fur- nish a safe place to alight wher- ever a car might be stopped, for such direction might be taken to authorize recovery for injury re- ceived in stepping from the car step to the highway, no matter how carefully the place of stopping had been selected, on the theory that it was unsafe to step down even 17 inches, the distance from the lowest step to the level of the top of the rail. . . . The contract was to carry plaintiff to "Dailey's," as a specific destination, which was thus indicated as a place where plaintiff might alight. This contract implied the duty to furnish plaintiff a safe place to alight at this destination. . . It does not follow that this duty involved the furnishing of a special platform in view of the nature of the transportation which defendant undertook to furnish, but it was for the jury to say whether, in view of the nature of the trans- portation, the place provided was a safe place." "' Topp V. United Ry. Co., 99 Md. 630, 59 Atl. Rep. 52, (1904); Joslyn V. Milford Ry. Co., 184 Mass. 65, 67 N. E. Rep. 866, (1903). In the latter case the interurban car ran beyond a private crossing, although the passenger had requested the conductor to stop there, and the passenger was Injured by stepping and falling on an embaukmeiit 772 THE LAW OF STREET RAILWAYS. [§ 464. § 464. Duty to passenger entering or leaving car — ^boarding car while in motion — The rule that, when those in charge of a street car, operating only in the streets of a city, stop in response to a signal or notification from passengers to enable them to alight, it is their duty to see and know, before starting the car, that no one is in the act of alighting or in other perilous position, applies also to an electric car operating without the city limits, running on schedule time and stopping only at regular stations.^"* It has been held that it is not negligence per se to arise from the seat and step to the side of a slowly moving car which is coming to a stop, for the purpose of getting which was composed of loose gravel of which the company gave her no warning. It was held that the jury would be justified in finding that the defendant failed in its duty to exercise reasonable care to protect the passenger while alight- ing from its car by its own invita- tion on its own roadbed. "' Birmingham Ry. Co. v. Wild- man, 119 Ala. 547, 24 So. Rep. 548, (1898). In this case the court said: "The principle applicable in the case of ordinary railroads operated by steam power, and stopping at regular stations, that the conductor of a train is required to stop only a sufficient length of time to allow passengers an opportunity to alight by the exercise of reasonable care and diligence, and, having so waited, is not guilty of negligence in putting the train in motion again while a passenger is in the act of alighting or otherwise in a danger- ous position, unless he knew the fact at the time, or ought to have known it, has no application in this case. The evidence tends to show that there was only one car, that it was in charge of a conductor and a motorman, that plaintiff had noti- fied the conductor that he desired to get off at Bast Woodlawn, that the car was stopped at that station for the purpose of allowing plaintiff, and such others as desired, to alight, and that plaintiff got off from the front platform. Under these circumstances the same prin- ciple applies as in the case of street cars operating only on the streets of a city or town — that when those in charge of the car stop it in response to a signal or notification from a passenger, to enable him to alight, it is their duty to see and know, before starting again, that no one is in the act of alighting, or in any other perilous position. — Ry. Co. V. Smith, 90 Ala. 60. The exits from the car were under the im- mediate observation of both the conductor and motorman, and it was entirely practicable for both of . them to watch the exits and see that no one was in a dangerous position when the car was put in motion, and, therefore, it was their duty so to do. The mere fact that the car ran on schedule time, and when beyond the city limits, stopped only at regular stations, does not change the principle applicable to the facts in this case." See also Reynolds v. Richmond Ry. Co., 92 Va. 400, 23 S. B. Rep. 770, (1895); Wabash River Trac. Co. V. Baker, 167 Ind. 262, 78 N. B. Rep. 196, (1906). § 465.J INTEKUEBAH EAILWAY8. 773 on the running board to alight when the car comes to a stop."" And so it was held that where a passenger attempted to alight at a switch, at which the company regularly stopped and passen- gers were accustomed to alight with the company's knowledge, it was liable for an injury to a passenger caused by the conductor permitting the car to start prematurely, although a regular stopping place had been established by the company a little farther on.-'^** Boarding an interurban car while in motion has been held to be negligence per se."^^^ § 465. Injures to passengers before boarding' and after leaving car. — The duty of a carrier of passengers does not end when the passenger has alighted from its cars. It must also provide reasonably safe means of access to and from its stations or terminals for the use of its passengers; and the passengers have the right to assume that the means of egress provided are reason- ably safe. The approaches to an interurban railway station, the platform for entering and leaving cars, the passages to the cars and every spot likely to be visited by the passenger seeking the depot, waiting at it for trains or departing, should be made safe by the carrier and kept so; and it was held that where a stile was erected by the owners of a pleasure park at an interurban railway station over a fence leading to the park, the railway company was liable for injury to a passenger by reason of a defect in the stile, when the company had knowledge of the use of the stile by its passengers, although it was partly on the property belonging to a third party. ^'^^ It has been held that the relation of carrier and passenger exists when the latter is ™ Davis V. Camden Ry. Co., 73 N. (1904). The court said: "Tlie stile J. L. 415, 63 Atl. Rep. 843, (1906); was a single complete device, and Scott v. Bergen Trac. Co., 63 N. J. formed a continuous passageway L. 407, 43 Atl. Rep. 1060, (1899). over the fence, and if the defendant ""South Covington Ry. Co. v. invited its passengers to use it. Core, 29 Ky. Law Rep. 836, 96 S. W. either expressly or by implication. Rep. 562, (1906). it was bound to at least ordinary "' Ohio Central Trac. Co. v. Ma- care in seeing that it was fit for the teer, 12 Ohio C. C. (N. S.) 327, purpose intended. . . . Defend- (1908). Affirmed 81 Ohio St. 494, ant was bound to know that pas- (1909). sengers alighting from its trains "" Cotant V. Boone Suburban Ry. would likely use this device in pass- Co., 125 la. 46, 99 S. W. Rep. 115, ing to their destination, and it was t74 THE LAW OF STBEET BAltWATS. [§ 4^5. passing upon the highway from one car to another, and it is the duty of the company to use reasonable care to see that the high- way over whifch the plaintiff is to pass is in a reasonably safe condition; and where the passenger was injured by falling after dark into a hole dug for a trolley pole, it was held that a prima facie case of negligence was made out against the company.^''^ Where a passenger was carried beyond his destination and was directed to take a dangerous way back without warning thereof, although the company's employe knew of the danger, the com- pany was held to be liable for injury resulting therefrom.-"* It is not negligence per se for a conductor to fail to let a passenger ofF at a designated place. Where, however, the passenger had notified the conductor to let him off at that place and the passen- ger relied upon the conductor, it was held that the company's negligence was a question for the jury.^''^ It was decided that a person standing in close proximity to, and leaning over, an interurban radway company's track to signal a rapidly approach- ing car on which he desired to take passage, contributed to his own injury, precluding recovery for negligence of the motorman in failing to stop the car, and that misjudging the speed of the car and being blinded by the headlight's glare were elements charging him with his peril rather than relieving him from the imputation of contributory negligence. ^^^^ § 466. Degree of care required of passenger — ^protruding arm or hand from window — ^While it is the duty of common carriers to provide safe means of transportation, their passengers must exercise such care as persons of common prudence would exercise its duty to use at least ordinary _care fendant, therefore, was charged with in seeing that it was properly con- notice of the defective condition of structed and in good repair." the way." "' Colorado Springs Ry. Co. v. "' Camden Ry. Co. v. Young, 60 Petit, 37 Col. 326, 86 Pac. Rep. 121, N. J. L. 193, 37 Atl. Rep. 1013, (1906). The court said: "Defend- (1897); Anderson v. Seattle-Tacoma ant knew that the way would be Ry. Co., 30 Wash. 387, 78 Pac. Rep. traveled in the darkness of the fol- lOia, (1904). lowing night. It was guilty of neg- ■" Camden Ry. Co. v. Young, 60 ligence in not using reasonable care N. J. L. 193, 37 Atl. Rep. 1013, (1897). to see that the way was reasonably '™ Meeker v. C. D. & M. Trac. Co., safe before the night came on. De- 31 Ohio C. C. 346, (1909). 466.J INTERUEBAN RAILWAYS. 775 under similar conditions, having regard to all the circumstances and considering the probability that the carrier will exercise due care."'^ It is generally held not to be negligence per se for a passenger to ride with his arm or hand resting on the sill of an open window."^ But if a passenger should protrude his arm, "' See sees. 329 and 344, ante. "'Cincinnati Ry. Co. v. Burk- hardt, 10 Ohio C. C. (N. S.) 543, (1908). In this case the court held that the averment in the plaintiff's petition that he "was sitting in the car with his arm on the window sill, and it was thrown out of the window by a sudden jerk or move- ment of the car," stated a good cause of action when taken in con- nection with' the allegations as to the dangerous construction of the parallel tracks and the proximity of passing cars to each other. In Pell V. Joliet Ry. Co., 238 111. 510, 87 N. B. Rep. 542, (1908), the plaintiff's arm rested upon the win- dow sill extending slightly over it with his fingers around the top of the sill, holding on to Lt while he was looking at passing objects. A car going in the opposite direction passed so close that his hand was caught by it and injured. The court said: "It is true that the seat was designed, in its ordinary use, for passengers facing toward the center of the car, and if the plaintiff had been sitting with his back to the window, or if he had kept his hand and arm inside of the car the acci- dent would not have happened; but it does not necessarily follow, as a matter of law, that because he did not sit in the seat in the ordinary manner, but permitted his hand and arm to protrude over slightly be- yond the edge of the window sill he did not use such care for his Qwn safety as a reasonably prudent person would have used under the same and similar circumstances. It was the duty of the defendant to exercise the highest degree of care consistent with the character and mode of conveyance and the prac- tical operation of its business to prevent an accident to tho plaintiff while riaing upon the car, and it would not be a fulfillment of that duty to operate the car so near to passing objects or passing cars as to be dangerous to passengers using ordinary care. It is not uncommon for persons riding in cars to rest the arm on the window sill or per- haps to allow it to extend slightly outside, where there is no barrier and no warning not to do so. In the absence of barrier or warning a passenger is not bound to presume that other cars will pass so close as barely to miss the car in which he is riding. There is usually a reason- able space between the passenger car and any structure or passing car, and at any rate the court could not say that cars are usually oper- ated in such close proximity as they were in this case, and that the pas- senger ought to have known that fact. The question whether the plaintiff was guilty of negligence contributing to his injuries was one of fact, and in determining that question the manner in which the plaintiff was sitting, the facts that he had his arm on the window sill and protruding somewhat beyond it, and was holding the sill with his hand, were to be considered by the jury." r76 THE LAW OF STEEET EAILWAYS. [§ 466. head or body so far out of the window as to necessarily expose him to danger, under the ordinary conditions which he might reasonably 'expect to exist, he is guilty of contributory negli- gence.^^^ In a recent interesting case in Ohio it was held that where a passenger rested his arm upon an iron bar extending across a window, and was struck by a passing car or some object protruding from it, he was guilty of contributory negligence, the court deciding that the rule of conduct applicable to passengers on steam cars in such cases applies also to passengers on interurban electric cars.-'*" ""Pell V. Joliet Ry. Co., 238 III. 510, 516, 87 N. B. Rep. 542, (1908). "" Interurban Ry. Co. v. Hancock, 75 Ohio St. 88, 78 N. E. Rep. 964, (1906). "It appears," said the court, "that there were four rods or bars across the windows of the car, in- cluding the one in question, and that the highest rod was a foot above the window-sill. It was upon the top rod or bar that plaintiff rested his arm. The purpose of these rods is in dispute. It would seem that, whatever other purpose they might subserve, if any, they were calculated to warn the pas- senger to keep his person inside the car. It is urged that they were placed there to keep packages and children from falling out. They might serve, in a measure, to fur- ther these objects; but passengers' arms are of more consequence than packages, and a warning to children might with equal propriety be heeded by adults. Again it is urged that they were placed outside the window to protect it. If that were the object the wonder is that they were not continued higher up. Again it is insisted that they con- stituted an invitation to the pas- senger to rest his arm upon the upper one. As well might it be urged that the bar or strap found on summer cars, extending on one side from one end to the other, and whose manifest object has been al- ways supposed to be to keep pas- sengers from alighting on that side, and others from entering it, is, after all, not for those purposes, but for the purpose of affording the pas- senger a convenient resting place for his arm. The proposition surely lacks reason. . . . It is apparent from the testimony of the plaintiff himself, that a presumption arises that his arm, or a portion of it, at the time of the accident, extended out beyond the bars, and this pre- sumption is strengthened by the character of the injury and by the absence of any showing that the bars themselves, or any part of them, were struck by the blow by which the arm was broken. The only question being that of con- tributory negligence on the part of the plaintiff, this state of facts pre- sented the question, as a matter of law, whether or not It is negligence for a passenger to purposely and unnecessarily extend his arm out of the window beyond the side of the car." The court said further: "We cannot concur in the assumption of the Wisconsin court, that prudent men are habitually given to thus projecting themselves from the windows of moving trains. Judge Thompson, who evinces an Incllna- § 467.] INTEETJEBAN RAILWAYS. 777 § 467. Eidiag on platform — It is not necessarily negligence tion to agree with that court, fails to indorse this assumption as to the habits of prudent men, which is the liey-stone to the position an- nounced by it. He says: 'It is per- haps not too strong a statement that no person ever traveled on a railway train without at some time resting his arm on the window-sill at least, if not permitting it to pro- trude slightly. Conduct which is universal, is necessarily that of per- sons reasonably prudent (Thompson Carr, Passengers, p. 258). But the conduct which is assumed by him to be universal, is that of resting the arm on the sill, not permit- ting it to protrude even slightly beyond. The former, prudent men may do; but we can not conceive that the latter is an act which a man of reasonable care and prud- ence would ever voluntarily do much less that it is the habit of such men to so act. The former, under ordinary circumstances, is not negligence. The latter, accord- ing to the overwhelming prepon- derance of authority, based on sound reason, as we conceive stand- ing by itself, is always negligence per se, which will defeat a recov- ery for any injury to which it proxi- mately contributed.' The holding of the court is, that: 'It is negli- gence per se, to be so declared by the court as matter of law, for a passenger on a steam railway to protrude his arm, hand or elbow through the window of the car while in motion, beyond the outer edge of the window, or outer surface of the car; and such negligence on his part, contributing proximately to an Injury received by collision with an object passing near by, bars a recovery for damages.' " As before stated, the opposite doctrine is maintained in a num- ber of decisions. Probably that con- tention is not better stated than by Cole, J., in Spencer v. The M. & P. du C. R. R. Co., 17 Wis. 487, as fol- lows: 'The party must be entirely free from negligence which con- tributes to the injury, and it was for the jury to say, under all the circumstances, whether the plaintiff was wanting in care and attention or not. This, it is obvious, must be so, unless the court is author- ized in saying, as a matter of law, in every case, that a person who extends his hand or arm in the slightest degree out of the window of a railroad car, while the train is in motion, is chargeable with negligence, and cannot recover dam- ages if injured while In this posi- tion by the carelessness and negli- gence of the agents and servants of the company. Can the court lay down any such fixed, unbending rule, which Is applicable to all cases and circumstances? It ap- pears to us clearly it can not. And certainly, when we consider the manner In which railroad cars are usually constructed, with the win- dows so that they can be opened, and arranged at a sufficient height from the seat so that passengers will almost unconsciously place their arms upon the sill for sup- port, there being no bars or slats before the window to prevent their doing so, then to say that if a passenger's arm extends the slight- est degree beyond the outside sur- face, he Is wanting in proper care and attention, and that if an In- jury happens, he cannot recover, because his conduct must have necessarily contributed to the re- (78 THE LAW OF STREET BAIL WAYS. [§ 467. per se for a passenger to ride upon a front or rear platform of a car when he has not been warned not to do so by the company's suit, appears to us to be laying down a very arbitrary and unreason- able rule of law. It is probably the habit of every person, while riding in the cars, to rest the arm upon the base of the window. If the window is open, it is liable to extend slightly outside. This, we suppose, is a common habit. There is always more or less space be- tween the outside of the car and any structure erected by the side of the track, and must necessarily be so, to accommodate the motion of the car. Passengers know this, and regulate their conduct accord- ingly. They do not suppose that the agents and managers of the road suffer obstacles to be so placed as barely to miss the car while passing. And it seems to us almost absurd to hold that, in every case and under all circumstances, if the party injured had his arm the smallest fraction of an inch be- yond the outside surface, he was wanting in ordinary care and pru- dence. The C. & A. R. R. Co. v. Pondrom, 51 111. 333, is hardly in point because the rule of compara- tive negligence, not recognized in Ohio, though then held in Illinois, is applied to the facts. The court seems to have regarded the act of the passenger in permitting his arm to slightly project outside of the window as a negligent act, slight, however, in comparison with the gross negligence of the company in permitting its freight cars, or other permanent bodies, to stand so near its tracks that passing trains would come within a few inches of such bodies, and for this reason the judgment was allowed to stand. Other holdings of like im- port with that of the Wisconsin case are found in the reports of courts of last resort in the states of Louisiana and North Carolina, and some text-writers follow these cases. In this conflict of authority it would be useless to attempt to reconcile the differing decisions. We are, however, of opinion that the weight of judicial expression is with the conclusion of negligence per se, where the passenger unnecessarily and heedlessly protrudes his arm beyond the window. And, after much consideration and reflection, we are also of opinion that this con- clusion is supported by the sounder reasoning. Assuming, therefore, that the rule respecting the conduct of a passenger on a steam car is to for- bid his extending his arm out of the car window without himself assum- ing the risk of injury, should a dif- ferent rule be applied to a pas- senger on an interurban electric car? We are of opinion that there should not be. As such cars are now operated throughout the coun- try they run at a rapid rate. Their construction ordinarily, if not necessarily, involves the mainte- nance near the tracks of poles and barriers of various kinds. Cars running in opposite directions, as well on switches as where there is a double track, are often neces- sarily run near together. There is, perhaps, more necessity for locat- ing tracks near together inside of municipalities than in the open country, and upon narrow streets it often happens that the company is required to lay the rails at less dis- tance apart than they would prefer to place them, because of crowded conditions and the requirements UgI.] INTERtRBAN EAILwA^i-S. 7T9 employes or by sigiLS posted for that purpose.^^^ Where there was a rule of a company that passengers using tobacco should occupy the rear vestibule of the car, it was held that a passenger, who was injured by reason of standing upon the rear platform for that purpose, was not guilty of contributory negligence."^ of the municipal authorities. To say that, as a rule" of law, a pas- senger on such car may be heed- lessly negligent, exposing his person to needless danger, and visit the consequences on the Interurban company upon showing negligence on its part, appears to us to be without reason. Nor is it sup- ported by authority. On the con- trary, the generally recognized rule is that the passenger can not cast upon the carrier responsibility for an event which, except for his own contributing negligence, would not have happened, and the law, as al- ways held in this state, does not undertake, when both parties have been negligent, to measure the de- gree of the negligence of each. And we are of opinion that no substan- tial reason exists why these same rules of care and of responsibility in the particulars stated imposed upon the passenger in the steam car ought not to be held to apply to the same passenger in an electric in- terurban car. . . . It is not in- tended to abate or modify the rule that the common carrier is bound to exercise the utmost practicable care and diligence to secure the safety of the passenger, but a duty of reasonable care as well rests upon the passenger himself. He must not heedlessly expose himself to danger, but is as much, required to use reasonable care to avoid in- jury as the carrier is to use the greatest degree of care to protect the passenger. He must not vol- untarily expose himself to needless peril. If of ordinary intelligence, the traveler knows the mode in which railroads are constructed, and the rapid rate at which trains move. He knows that on the out- side are posts and barriers near to the track, and that where there is a double track, cars operated at a rapid rate are constantly passing in close proximity. With this knowledge on the part of the pas- senger, it must be obvious that the extension of any part of his body on the outside of the car is at- tended with more or less risk, more or less danger. It may be de- batable as to the extent of the danger under differing circum- stances, but it can not admit of debate that the act is risky and in- vites danger. It is not a case where it ought to be said that different minds may reach different conclu- sions, and therefore presents a sit- uation requiring the submission of the question of negligence or no negligence in the abstract to a jury, because such requirement exists only where different reasonable minds may reasonably differ." 1" Sections 338 and 339, ante. "'' Goodloe V. Metropolitan Ry. Co., 120 Mo. App. 194, 96 S. W. Rep. 482, (1906), in which the court said: "The plaintiff had a right to in- dulge in the use of tobacco during transportation and was riding in the part of the car provided by de- fendant for such passengers. The defendant impliedly invited him to be there if he choose and in no manner was relieved from the per- Y80 THE LAW OI" SXKEET RAILWAYS. [§ 467. Where the carrier prohibits passengers from standing on the plat- form, and notice thereof is properly posted, or where the passen- ger has been notified by the company's employes to go inside of the car, where there is ample room, the rule is different. Ai passenger who stands on the platform, not as a matter of necessity but simply from choice, although it may be caused by the dis- comfort of a crowded car, assumes the risks and hazards which ensue from that position. It has been held that the same rules of negligence and contributory negligence which are applicable to persons riding upon the platforms of steam railroads should apply to passengers upon the platform of an interurban car while operating in the open country, at a high rate of speed and upon a track substantially the same as that of a steam railroad,-'^^ and that it is not negligence per se to stand upon the running board or platform of a crowded car, where there is no room inside ; and formance of the duty it owed him as a passenger by his acceptance of the invitation." See also Cin. L. & A. Blec. St. Ry. Co. V. Lohe, 27 Ohio C. C. 138, (1905), in which it was said that: "Where a passenger on an interur- ban railway car was thrown there- from and killed by the derailing of the car while running through the open country, the fact that he was standing on the platform at the time cannot be held to be the prox- imate cause of his death. Nor does the evidence disclose that there was available or reasonably con- venient room on the inside of the car, that the injury would not have happened had he been on the in- side, that he had notice of a sign prohibiting passengers from stand- ing on the platform, or that he was ordered inside the car by the com- pany's servants and refused to go." "" Cincinnati Ry. Co. v. Lohe, 68 Ohio St. 101, 67 N. E. Rep. 161, (1903). In this case the passenger con- tinued standing upon the platform although the notice of the rule of the company prohibiting a pas- senger from standing thereon was properly posted and the conductor requested him to enter the car where there were vacant seats. The court said: "It seems reasonably clear that while operating the cars of an interurban railroad within a municipality the regulations and powers of a street railroad company are applicable, but when it comes to running cars of such railroad in the open country, upon a track substantially the same as the track of a steam railroad, and at a high rate of speed, it would seem that the same rules as to negligence and contributory negligence should pre- vail, as are applicable to steam rail- roads; and that a passenger stand- ing upon a platform of an interur- ban car in the open country, should be held to the same rules as if he were standing on the platform of a, steam car. The danger is the same in either case, and where there is no difference in danger, there should be no difference in the § 468.J INTEEtTEBAN RAILWAYS. 781 that, if the carrier accepts a passenger whom it cannot accom- modate inside the car, it must exercise the highest degree of care to prevent an injury to him.-'^* § 488. As carriers of freight — Usually street railway com- panies are not authorized to carry freight. In the first edition of this book a street raihvay was defined as a common carrier of passengers only. Since that time interurban railways have acquired a legal status, and their business has been so developed that in many states they are authorized by statute to carry freight, express and mail; and several states have extended one or more of these privileges to street railways.^^^ The authorities differ on the question as to whether the operation of freight cars upon the streets of a city by a traction railway company creates an additional burden thereon,-^^^ but an electric railway carrying- care required, nor In the rights and liabilities flowing from the neg- lect to observe the proper care." iM verrone v. Rhode Island Ry. Co., 27 R. I. 370, 62 Atl. Rep. 512, (1905); Abel v. Northampton Trac. Co., 212 Pa. St. 329, 61 Atl Rep. 915, (1905); Halverson v. Seattle Elec. Co., 35 Wash. 600, (1904). "'State V. Dayton Trac. Co., 64 Ohio St 272, 60 N. B. Rep. 291, (1901). In this case the court said: "Counsel for the plaintiff in error urge as conclusive on the subject numerous texts and decisions in which street railways are defined as carriers of passengers. Usually they have been so defined for the obvious reason that, until lately, they were exclusively engaged in the carriage of passengers; but the general definition cannot be materi- al in view of recent legislation, in which the term is applied to roads constructed upon highways, inter- urban as well as urban, the only requirements being that In con- struction and operation they shall be consistent with the former and ordinary use of such highways, and in which legislation provision Is ma^e for the carriage of merchan- dise.'' It was held in Degrauw v. Long Island Ry. Co., 60 N. Y. Supp. 163, 163 N. Y. 597, (1899), that the New York Statute (Laws 1890, C. 565, Sec. 90) allowing street railways to convey "persons and property in cars for compensation," did not limit the street railways to the car- riage of only such property or bag- gage as the passengers might take with them, but authorized them to operate cars designed and intended exclusively for the carrying of ex- press matter or freight. See also Stillwater Ry. Co. v. Boston & Maine R. R. Co., 171 N. Y. 589, 64 N. E. Rep. 511, (1902); In re Washington Ry. Co. 115 N. Y. 442, 22 N. E. Rep. 356, (1899). "" In Gaus Manufacturing Co. v. St. Louis Ry. Co., 113 Mo. 308, 20 S. W. Rep. 658, (1892), the court said, in considering the right of a commercial railway to oper- ate upon the streets of the city: "The use of street cars for the transportation of freight has just 782 THE LAW OF STREET RAILWAYS. [§'468. freight has usually been held to be a commercial railroad to the extent at least that it is regarded as an additional burden on both country highways and city streets.^^^ While the use of cars for the carriage of local freight has been said tO' relieve the easement of passage in the street because they take the place of a large number of other vehicles which would create a greater congestion upon the roadway, such use of the streets for the loading, unloading and removing of freight may seriously obstruct their use for other purposes. In a recent case the Supreme Court of Montana held that a railway constructed along the streets of a city for the transportation of freight, within tbe city limits, is not aii additional servitude. •'^^ In the country districts interurban rail- ways are engaged principally in through traffic, and the carriage begun. Whether the practice is likely to increase and become gen- eral remains to be seen. When we direct our attention to the mov- ing freight car, taking the place of twenty trucks, twenty pairs of horses and twenty drivers, the ad- vantage of such a use of the streets seems obvious. It is presumably more economical. It saves wear and tear of the street, diminishes the accumulation of dirt and filth, relieves the congestion and dimin- ishes the noise and confusion. The movement of the freight car would no more interfere with an abutting property than the movement of a passenger car to the extent that, the freight car is a substitute for traffic teams on the street, it thus tends to make the street quieter, cleaner, freer and more sanitary, and since the street exists as much for the movement of freight as for the movement of persons, there seems to be no reason why the street freight car should not l)e put upon the same basis as the street passenger car, in so far as concerns the mere movement of the car on the tracks, and in so far as It carries freight which would otherwise be carried in vehicles on the streets." See sec. 441 and notes 63 and 64 thereto, ante. '" Wilder v. Aurora Trac. Co., 216 III. 493, 75 N. E. Rep. 194, (1905), holding that "Commercial railways embrace all railroads for general freight and passenger traffic between one town and another or between one place and another," and, the fact that the road is limited to the carriage of three kinds ot freight, to wit: United States mail, express and milk, does not make it any the less a commercial railroad. See also Diebold v. Kentucky Trac. Co., 25 Ky. Law Rep. 1275, 77 S. W. Rep. 674, (1903) ; Linden Laud Co. V. Milwaukee Ry. Co., 107 Wis. 493, 83 N. W. Rep. 851, (1900); Schaaf v. Cleveland Ry. Co., 66 Ohio St. 215, 64 N. E. Rep. 145, (1902); Rische v. Texas Trans. Co., 27 Tex. Civ. App. 33, 66 S. W. Rep. 324, (1901). '"In Kipp V. Davis-Daly Copper Co., 41 Mont. 509, 110 Pac. Rep. 237, (1910), the plaintiff sought to enjoin the mining company from building a narrow gauge railroad to transport ore and supplies of the §469.J INTEETJEBAN EAILWAYS. 783 of freight, over the highway is consideroJ, by the greater weight of authority, to be an additional burden thereon.^^® It has been held that a traction railway company, authorized to transact an express business within the city, may give to an express com- pany the exclusive right to do business on its lines, if the latter affords to the public reasonable express facilities. ■'®'' Under the law governing common carriers of freight, a traction railway company which transports freight is responsible for the delivery thereof at its destination.-'^^ § 469. Miscellaneous — rate of speed — flagging system In order to serve the public, interurban cars must be propelled as rapidly as safety will permit, and it has been held that, upon long stretches of a country road where no speed limit is fixed by company over the streets of the City o£ Butte. The court, taking Into consideration the importance of the business of this mine to the business and general interests of the city, said: "On principle the rights of the abutting owner bear exactly the same relation to the inconvenlencies which are inci- dent to the tracks installed for the movement of passenger cars and the movement in cars thereon, as they do to the inconvenlencies which arise from the conveyance of freight by the same means. It can make no difference to him what the cars are loaded with; and if the city authorities so control their construction and movement as not to obstruct the access to his prop- erty, more than it would be ob- structed by movement of passenger cars, he has no cause of complaint on the ground that his constitu- tional rights are Invaded. While it may be inconvenient and im- practicable for freight cars to make frequent stops to receive and dis- charge freight, because this would cause substantial interruption of the ordinary street traffic, this con- sideration furnishes no objection to the movement of cars loaded with freight between designated points along the street upon which the same freight must be conveyed in drays and other similar vehicles." "" See sec. 441, n. 59, ante. "»» Dulaney v. United Rys. Co., 104 Md. 423, 65 Atl. Rep. 45, (1906). In regard to the regulation of freight rates of an interurban company by a state railroad commission see Manitowoc v. Manitowoc Trac. Co., 129 N. W. Rep. 925, (Kan. 1911). i"iln Levi v. Lynn Ry. Co., 11 Allen (Mass.), 300, (1865), the plaintiff rode upon a street car, carrying with her a box which she deposited upon the front plat- form and upon which she paid a price for transportation. The plain- tiff offered to show that the com- pany was a common carrier, for hire, of merchandise by proving several' previous Instances of other persons paying the company there- for. The offer was sustained and the jury was instructed that if they found that the company was a com- mon carrier and the plaintiff's box was delivered for transportation 784 THE LAW OF 8TBKET RAILWAYS. L§469. law, no given rate of speed is per se excessive. ^"^ Whether the speed at which an interurban car runs upon a country highway is negligent depends upon the location and conditions surrounding the accident. ^^^* It has been held that an interurban railway is not required to adopt any particular flagging system, and that it satis- fies the requirements of the law when it adopts and enforces a system which is reasonably safe; but where it can be shown that the flagging system adopted is not in general use by railways of like character throughout the co\mtry the safety of the system in use is a question for the jury to determine from the evidence submitted. ^'^ and transportation price paid, the company was responsible for deliv- ery to its destination. "^ Vizacchero v. Rhode Island Co., 26 R. I. 392, 59 Atl. Rep. 105, 69 L. R. A. 188, (1904). In Petty v. St. Louis & Meramec R. R. Co., 179 Mo. 666, 78 S. W. Rep. 1003, (1903), the court said: "No law or contract regulating the rate of speed of the defendant's cars was shown. The common law therefore applies. One witness for the plaintiff put the speed at twenty- five miles an hour, but as he did not show himself qualified by train- ing or experience to speak to that question, his testimony need not be further considered. The only evi- dence in the case is that the car ran down the slope at the rate of fifteen miles an hour, and that when It approached Plant avenue, it was slowed down to a speed of eight to ten miles an hour. On the face of the case, such a rate of speed at the time and place and under the cir- cumstances of this case can not be held, as a matter of law, to amount to negligence. There were no houses on the south side of the street for about twelve hundred feet west of Plant avenue, and, so far as ap- pears, there were no intersecting streets; the track was straight and there was nothing to interfere with the view for that distance. Any- one standing In the gutter at the intersection of Longfellow and Plant avenues, which was twenty- two feet south of the east-bound tracK, could see westwardly for twelve hundred feet. The car was lighted by electricity, and had a headlight burning. The car made considerable noise running down the slope and the gong was sounded. Anyone who had looked could have seen and heard the car coming. Under such circumstances a rate of speed of fifteen or even twenty-flve miles an hour does not, per se, con- stitute common-law negligence." One Interurban company entering a municipality over the tracks of another is bound by the rules of the latter with reference to the speed of cars at crossings. Inter- urban Ry. & Term. Co. v. Hines, 13 Ohio C. C. (N. S.) 168, (1910). ""a Snow V. Indianapolis Ry. Co., 93 N. E. Rep. 1089, (Ind. 1911). '" Sipes V. Puget Sound Ry. Co., 54 Wash. 47, 102 Pac. Rep. 1057, (1909). In this case the court said: "This question will be further con- sidered in connection with the con- tention that the sufllciency and §4mj lATEKDltBAN KAILWAVS. § 470. Fellow servant — master and servant — The law relat- ing to street railway companies and their servants, as stated in a former chapter/^* applies to interurban railways, as shown by several recent, interesting interurban cases. It has been decided that a laborer employed by an interurban railway company on track repair work is not a passenger while being carried to and from his work in a work car, but an employe and fellow-servant of those operating it.^^® The negligence charged was that of the reasonableness of the rules and reg- ulations presents a question of law for the decision of the court. This latter contention Is supported by authority, but not, in our opinion, by the weight of authority or the better reasoning. No doubt rules and regulations may be so full and complete that a court may declare them reasonable and sufficient as a matter of law, or they may be so faulty and defective that a court will not hesitate to declare them unreasonable and deficient as a matter of law, but between these extremes there is of necessity a de- batable ground, where the question of the reasonableness and suffi- ciency of rules and regulations is a mixed question of law and fact to be determined by the jury under proper instructions from the court. We think this case falls within the latter class. Here at least three different methods of dispatching trains were disclosed by the testi- mony; namely, sending the flagman ahead with verbal orders to hold other trains, as was done in this case; running the motor as a seTiond section of train No. 6, in which case No. 6 would carry green signals and all other trains would leave the track clear until the second section or motor had passed; and the rule prescribed by the two bulletins above referred. As between these several methods the latter two 50 would seem much the safer. A number of experienced railroad men testified that a verbal order is un- safe and that such a system is not in use elsewhere. Aside from this, the terms of such an order rest in the memory of a single person, and its proper execution rests solely in his fidelity. If the motor were run as a second section of No. 6, all other trainmen would see the sig- nals and govern themselves accord- ingly. If the method prescribed by tne bulletins were adopted, the flag- man would not forget his orders, and the motorman with him would act as a check and stop all other trains until the order was safely de- livered. Indeed, the above bulletins, especially the second, tacitly admit that the prevailing practice was im- proper at least. If not unsafe. Under these circumstances, we think the jury were warranted in finding that the negligence of the appellant con- curred with the negligence of the flagman in producing the injury." As to the duty to give signals at road crossings as warning to pedes- trians see Commonwealth v. Louis- ville Ry. Co., 131 Ky. 583, 133 S. W. Rep. 230, (1911). >" See Chapter XIV, ante. "' Indianapolis & G. Tran. Co. v. Andis, 33 Ind. App. 625, 72 N. E. Rep. 145, (1904J In this case the court said that it is not necessary that the one who caused the injury 786 THE LAW OF STREET RAILWAYS. [§ 470. motorman and conductor, and the court held that when the com- pany undertook to carry its employe it owed him a duty to exercise only ordinary and reasonable care for his safety. But the employer may be liable for injuries caused by some latent defect of which the employe had no notice; so where a member of a repair gang who was removing snow from the tracks, under the direction of a foreman, was injured by a shock caused by a short circuit resulting from the iron scoop of the sflow shovel coming in contact with the rail and a bolt projecting from, a tie which communicated with the earth, it was held that a verdict for the plaintiff was justified where it appeared that he had no knowledge of short circuits and that he was never instructed con- cerning the danger, although he knew that the third rail carried electricity.^®® Where the negligence of a railway company con- curs with that of a fellow servant, it is liable for injuries caused thereby. -^^^ And it was held that a motorman was guilty of con- should be at the time engaged in the same particular work; that it is enough that they are in the em- ploy of the same master, engaged in the same general enterprise, and both employed to perform duties and services intended to accomplish the same general purposes. See Sipes v. Pugent Sound Ry. Co., 54 Wash. 47, 102 Pac. Rep. 1057, (1909); Indianapolis Trac. Co. V. Kinney, 171 Ind. 611, 85 N. E. Rep. 954, (1908). ""Smith V. Manhattan R. R. Co., 112 App. Div. (N. Y.) 202, 98 N. Y. bupp. i, (1906). In Pierce v. Cam- den Ry. Co., 58 N. J. L. 400, 35 Atl. Rep. 286, (1895), the intestate, who had been in the employ of the com- pany for only a short time as an extra, and had run the car only one day over the line on which the accident happened, and had no knowledge of the company's road or method of construction and oper- ation, while collecting fares from the running board, was killed by a pole six and one-half inches from the edge of the step. The court held that the question of the plaint- iff's contributory negligence was for the jury. But see Ladd v. Brockton Ry. Co., 180 Mass. 454, 62 N. B. Rep. 730, (ia02). ""Sipes v. Puget Sound Ry. Co., 54 Wash. 47, 102 Pac. Rep. 1057, (1909). In this case the plaintiff was ordered by a train despatcher to take a special train to a certain point and send a flagman with a red flag and torpedoes ahead on another train to give the plaintiff's train the right of way. The order was taken over the telephone by the plaintiff and given to the brakeman, who went ahead to carry out the orders and failed to notify tne conductor of a train going in the opposite direction, which collided with the plaintiff's train. The court held that the conductor and flagman were fellow servants, but as the jury found that the system of sig- nalling used by the company was unsafe, the flagman was a mere instrumentality of an inadequate § 471.] INTEEUEBAN RAILWAYS. Y87 tributoi'y negligence in leaving a meeting point before the arrival of a car from the opposite direction, and, for that reason could not recover from the company for injuries sustained in the resulting collision.-^*^ § 471. Employers' liability laws — lu a number of states em- ployers' liability laws have been passed providing that railroad corporations shall be liable for damages for personal injuries suf- fered by an employe while in their service, under conditions speci- fied in the statutes. It has generally been held that such statutes do not contravene the Fourteenth Amendment to the Federal Con- stitution by denying to the company the equal protection of the law in its capacity as an employer, and that the provisions of the state constitutions forbidding that class legislation do not forbid such classifications as apply alike to all who are operating under the same conditions, where the classifications are demanded by leasons of economy, convenience and the best interests of the public.-'®® Many of these statutes were passed before the exist- ence of street railways and especially before the growth of the iaterurban systems. The general weight of opinion is to the effect that employers' liability acts referring to railroads, whether passed before the existence of street railways or afterwards, do not include street and interurban railways, and that the use of the word "railway" or "railroad" when not qualified by the word "street" or other expression of a similar import, has special refer- system, and the negligence of the In view of the recent legislation master concurred with that of the in a number of states providing flagman in producing the injury, that employers conducting business and in such case the master is of a hazardous nature shall pay a liable. See also Moore v. St. Louis stated compensation for death and Trans. Co., 193 Mo. 411, 91 S. W. injuries to persons in their em- Rep. 1060, (1905). ploy, attention is called to Ives v. '== Interurban Ry. Co. v. Treuheit, South Buffalo R. R. Co., 45 N. Y. 12 Ohio C. C. (N. S.) 259, (1909). L. J. 23, (1911), in which it was See McLeod v. Chicago & North- decided that such a law is uncon- western Ry. Co., 125 la. 270, 101 stitutional as contrary to the pro- N. W. Rep. 77, (1904). visions of the constitutions of '" Indianapolis Trac. Co. v. Kin- United States and New York for- ney, 171 Ind. 612, 85 N. E. Rep. 954, bidding the taking of property with- (1908). put due process of law. 788 THE LAW OF STEEET EAILWATS. [§ 471. ence to commercial railroads.^"" It has been held that the pecu- liarly hazardous character of the work of operating a commercial railroad was, in the opinion of the law-makers, a sufficient reason for making the classification and affording men so employed re- lief not extended to other servants, and for imposing on their employers a liability not imposed on other masters.^"-^ It has been held that where a company incorporated under the general rail- road law is engaged in street railway business the statute does not - apply to its employes ; and so, when the servant was not employed in the operation of trains or in a hazardous occupation, it was "» McLeod V. Chicago & N. W. Ry. Co., 125 la. 270, 101 N. W. Rep. 77, (1904). The court said: "By this [the commercial railroad] is meant those larger, more expensive, and more permanent lines or systems extenalng from town to town and city to city, accommodating a heavier and more miscellaneous traffic, and requiring larger forces of employes who are exposSd to greater risks than is the case of street car lines and systems." See also Sams v. St. Louis Ry. Co., 174 Mo. 53, 73 S. W. Rep. 686, 61 L. R. A. 475, (1903); Riley v. Galveston Hy. Co., 13 Tex. Civ. App. 247, 35 S. W. Rep. 826, (1896) ; Punk V. St. Paul Ry. Co., 61 Minn. 435, 63 N. W. Rep. 1099, 29 L. R. A. 208, (1895) ; Indianapolis Ry. Co. v. Andis, 33 Ind. App. 625, 72 N. E. Rep. 145, (1904). "»' In Sams v. St. Louis Ry. Co., 174 Mo. 53, 73 S. W. Rep. 686, 61 L. R. A. 475, (1903), the court said: "It is the peculiar character of the work that justifies the statute in the eyes of the constitution, and it is upon that ground alone that its validity has heen upheld. It is the condition and not the theory that justifies the law. The law applies to a master who as a matter of fact owns and operates a railroad, and to a servant who as a matter of fact is engaged in its work of operating that railroad; it applies to no other master — to no other servant. The business in which the corporation was engaged may have heen such that its charter did not authorize, still when the attempt is made to bring the act within the scope of this statute the question is, not what was the company authorized to do, hut what in fact was it doing and In what work was the Injured servant engaged? The charter gives no answer to those questions; it is conclusive evidence of what the company had a right to do, hut It is no evidence of what in fact it was doing." In Indianapolis Trac. Co. v. Kin- ney, 171 Ind. 612, 85 N. E. Rep. 954, (1908), the court said: "Notwith- standing the language of the statute is 'that every railroad, or other corporation, except municipal, oper- ating in this state, shall be liable for damages for personal injury suffered by an employe while in its service," it must not for a moment be understood that the benefits of the statute are extended to all em- ployes of a railroad corporation, or to any other class of employes than those whose duties expose them to the peculiar hazards incident to the use and operation of railroads. There is no reason, In fact or fancy, § -iTl.J INXEBUBBAN EAXLWAYS. Y89 decided tliat lie -was not entitled to the benefits of the statute.*"* It was decided, also, that an electric car is not a "locomotive engine" nor a "train upon a railway" within the meaning of the Indiana statute making railroad companies and other corporations, except municipalities, liable for injuries suffered by employes, in the exercise of due care, caused by negligence of any person in the service of such corporation who has charge of the signal, telegraph office, switch yard, round house, locomotive engine or train upon a railway.*"^ It was held that the Iowa statute — providing that the words "railway" and "railway corporation," "railroad" and "railroad corporation" wherever used in the statute shall ap- ply to interurban railways, and that "any interurban railway shall, withiu the corporation limits of any city or town, upon such streets as it shall use for transporting passengers, mail, bag- gage and such parcels, packages and freight as it may carry in its passenger or combination cars only, be deemed a street rail- way subject to the laws governing street railways" — does not bring an interurban company, operating its lines upon the city streets, within the employers' liability law applying to "every corporation operating a railway."*"* But it was held that the word "railroad" used in the Georgia employers liability statute of 1856 is broad enough to include a street railway.*"® why the benefits of the statute (sec. 1, act 1893, p. 294, sec. 8017, should he extended to the office and Burns, 1908) because he was ex- shop employes of railroad corpora- posed to none of the dangers of tions, or to others removed from operating the railway, the dangers of train service, and ™ Indianapolis Ry. Co. v. Andis, denied to the multitude of other 33 Ind. App. 625, 72 N. E. Rep. 145, workmen engaged in businesses of (1904). like and equal hazard." "* McLeod v. Chicago & N. W. Ry. '•" Sams V. St. Louis Ry. Co., 174 Co., 125 la. 270, 101 N. W. Rep. 77, Mo. 53, 73 S. "W. Rep. 686, 61 L. R. (1904). A. 475, (1903). '" Savannah Ry. Co. v. Williams, Indianapolis Trac. Co. v. Kinney, 117 Ga. 414, 43 S. B. Rep. 751, 61 171 Ind. 612, 85 N. E. Rep. 954, L. R. A. 249, (1903). In this case (1908). In this case the servant was Lamar, J., said: "So while street engaged as a member of a construe- railroads may not then have been tion gang unloading rails from a so dangerous, they were still rail- flat car standing on the siding of road companies and within the pur- street car tracks. It was held that view of the law. They are not out- he was not entitled to the benefits side of the policy underlying the of the Employers' Liability Act statute. They had tracks, and had ?90 taij LAW Of steeet eailwats. [§ 472. § 472. Statutes relating to actions for death The common laAv rule ■which permitted no recovery for causing the death of a human being has been generally abrogated by statutes, similar to Lord Campbell's Act, which allowed damages to the next of kin of the intestate. In most jurisdictions the statutes provide that a cause of action shall survive to the heirs and these statutes apply to actions against street and interurban railways.^"^ A Missouri statute provides that whenever any person shall die from an injury resulting from the negligence of any servant or employee "whilst running, conducting or managing any locomotive, car or train of cars," his employer shall be liable in damages to the amount of $5,000. It was held that the purpose of this statute is to allow damages for the negligent acts of the servants managing, running and controlling public conveyances irrespective of the motive power used and that it applies to interurban railways.^"'^ or might have had bridges. The utmost diligence on the part of the driver might not have enabled him to guard against the negligence of other fellow-servants who were charged with the duty of keeping the track in repair. While there might not be as many injuries occa- sioned by the negligence of a fellow- servant in street car service, yet the language of the statute was broad enough to take in these few instances as they arose. If the leg- islature used language which was broad enough to include street rail- roads, and if to some extent they were within its spirit, even though not as much so as steam railroads, the courts have no right to pare down its meaning and say that the law does not apply to the em- ployes of a street railroad." ""Ruppel V. United Rys., 1 Cal. App. 666, 82 Pac. Rep. 1073, (1905). See also Olivier v. Houghton Co. St. R. Co., 138 Mich. 242, 101 N. W. Rep. 530, (1904) ; Morris v. Spartan- burg Ry. Co., 70 S. C. 279, 49 S. B. Rep. 854, (1904); Austin v. Metro- politan Ry. Co., 95 N. Y. Supp. 740, 108 App. Div. (N. Y.) 249, (1905); Behen v. St. Louis Trans. Co., 186 Mo. 430, 85 S. W. Rep. 346, (1905); Dillon V. Hudson Ry. Co., 73 N. H. 367, 62 Atl. Rep. 93, (1905). '"In McQuade v. St. Louis Sub- urban Ry. Co., 200 Mo. 150, 98 S. W. Rep. 552, (1906) , the statute pro- vided: "Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or em- ploye whilst running, conducting or managing any locomotive, car or train of cars, or of any master, pilot, agent or employe whilst run- ning, conducting or managing any steamboat, or any of the machinery thereof, or of any driver of any stage coach or other public convey- ance whilst in charge of the same as driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency In any railroad, or any part thereof, or in any locomotive or car, or any steamboat or the § 473.] INTEEUEBAN BAILWAYS. 791 § 473. Joint use of tracks — As stated elsewhere, a munici- pality may lawfully grant to one street railway company the right machinery thereof, or In any stage coach or other public conveyance, the corporation, individual or indi- viduals in whose employ any such officer, agent, servant, employe, master, pilot, engineer or driver shall be at the time such injury is committed, or he who owns such railroad, locomotive, car, stage coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency, unskillful- ness, negligence or criminal intent above declared shall forfeit and pay for every person or passenger so dying the sum of five thousand dol- lars." The court said: "To our mind the purpose of this statute was to allow damages for the negli- gent acts of the servants managing, running, and controlling public con- veyances. These conveyances may be such as are composed of steam engines and cars; they may be cars propelled by horse power; they may be cars propelled by electricity; they may be coaches propelled by horse power; they may be coaches propelled by steam or other power, as the automobile, so they be public conveyances. The statute uses the term 'or any other public convey- ance.' But we need not go even thus far. The statute says 'whilst running, conducting or managing any locomotive, car or train of cars.' Notice the punctuation and connec- tives; analyze the sentence, supply- ing the omitted words, we have: (1) 'Whilst running, conducting or managing any locomotive.' (2) 'Whilst running, conducting or man- aging any car.' (3) 'Whilst run- ning, conducting or managing any train of cars.' The motive power used in the locomotive is not lim- ited to steam, nor is the method of running the car, or train of cars, limited to any particular means or motive power. It was no doubt couched in these general terms, when originally enacted, in view of our American progressiveness. If we are to construe the statute otherwise, we would have a singular situation. There is no question that a street car is a public conveyance. If we attach horses thereto and put on a driver, under another clause of the statute, we would have lia- bility of the company, but, accord- ing to contention of counsel for de- fendant, no liability if we changed the propelling power to electricity. In other words, we would have street railway companies liable at times and not liable at other times, if they changed their motive power. In our judgment the statute was in- tended to apply to public convey- ances of whatever kind, as first hereinabove stated. The bench and bar of the state have proceeded upon that theory for these many years, and it remained for the act of 1905, to suggest to lawyers, for the first time, that street railways were not within the purview of the statute. This act of 1905 brings about several radical changes in the statute, among others street cars are specifically mentioned, but it does not necessarily follow from this fact that the statute was not previously broad enough to cover such public conveyances." See Higgins v. St. Louis & Subur- ban Ry. Co., 197 Mo. 300, 95 S. W. Rep. 863, (1906). In Drolshagen v. Union Depot Ry. Co., 186 Mo. 258, 85 S. W. Rep. 344, T92 THE LAW OF STEEET EAILWATS. [§ 473. to tlie joint use of the existing tracks of another street railway company where such power is expressly reserved.^"* In Ohio it has been held that a statute authorizing a street railway company to jointly use and occupy part of the track of another street rail- way applies to interurban railways, and that where the statute authorizes the occupying company to so use an existing track to the extent of one-eighth of its own mileage, in order to determine how much of the street railway track it may use it may include in the aggregate of its own mileage, not only all of its trackage within the municipality, but also that which is beyond the munici- pal limits.^"® The consent given by a municipality to the opera- tion of a street railway over its streets does not confer upon the company the right to use the streetsi for ittterurban railway busi- ness.^^° In absence of express statutory authority one railway company cannot condemn longitudinally the right of way of an- other. ^^^ It has been held, however, that this doctrine is limited (1904), it was held that the clause In the statute referring to "any driver of any stage coach or other public conveyance whilst in the charge of the same as driver," did not refer to and include an electric railway. '" See chapter V, ante; Newport News Ry. Co. v. Hampton Roads Ry. Co. 102 Va. 795, 47 S. B. Rep. 839, (1904). In Brickels v. Milwaukee Trac. Co., 134 Mis. 358, 114 N. W. Rep. 811, (1908), it was held that an in- terurban railway cannot operate over street railway tracks without legal authority, and that if it does so, it is a trespasser and liable to abutting owners for damages. In Newport News Ry. Co. v. Hampton Roads Ry. Co., 102 Va. 795, 47 S. E. Rep. 839, (1904), it was decided that a grant by a county board of supervisors to a railway company of the right to construct its tracks along a highway which was subsequently incorporated with- in the town limits does not confer upon the company the exclusive right to use and occupy the high- way with its railway, and that the council of the town may grant to another railway company the right to use and occupy such highway with its tracks. =»" State V. Cincinnati & H. Ry. Co., 19 Ohio C. C. 79, (1899). ^""In re Plowright, 140 Wis. 512, 122 N. W. Rep. 1043, (1909). ■^New York Central & H. R. R. Co. V. Buffalo, 200 N. Y. 113, 93 N. B. Rep. 520, (1910); Miller v. Cincinnati Ry. Co., 43 Ind. App. 540, 88 N. B. Rep. 102, (1909); Portland Ry. Co. V. Portland, 181 Fed. Rep. 632, (1910); Indianapolis & V. R. Co. V. Indianapolis Ry. Co., 33 Ind. App. 337, 67 N. B. Rep. 1013, (1904). It was held in Fayette Ry. Co. v. Aberdeen Ry. Co., 142 N. C. 423, 55 S. B. Rep. 345, (1906), that an inter- urban railway, authorized by its charter to condemn abandoned road beds, is not thereby authorized to condemn an abandoned road bed upon which another railway has § 474.] INTEETJEBAN EAILWATS. Y93 to a right of way of the width, which the railroad is authorized hy statute to condemn.^^ In some states interurban railway compa- nies are authorized by statute to condemn a right of way through a mimicipality over the tracks of a street railway company.^^^ § 474. Traffic agreements — The statutes of several states au- thorize interurban railway companies to enter into traffic agree- ments with street railway companies for the operation of their cars over street railway tracks within municipalities. In an interesting Ohio case the attorney general brought a proceeding against an interurban railway company and a street railway com- pany to forfeit the right of both to do business in the streets of a municipality, on the ground that they were carrying merchandise and freight for hire over its streets without statutory authority and contrary to the city ordinances ; but the court held that, under the Ohio statute, providing that street railroads engaged in inter- urban traffic are authorized to make "traffic arrangements with any other street railroad company as to so much of its tracks as may be necessary or desirable to enable them to enter or pass through any city or village upon the same terms and conditions applicable to other street railroads," and that "any existing street railroad company owning or operating a street railroad shall receive the cars, freight, packages or passengers of any other rail- road, upon the same terms and conditions as they carried for the general public,"^" the respective companies, which have entered into a traffic agreement under the statute, may lawfully carry freight over the streets of the city.^^^ In Indiana it was held that the legislature may impose such reasonable conditions as it deems proper, limiting the privilege granted to an interurban railway established a prior location and way longitudinally in -whole or in which has become a part of its right part. of way. '" Chicago Ry. Co. v. Chicago & In Indianapolis & V. R. Co. v. N. W. Ry. Co., 211 111. 352, 71 N. E. Indianapolis Ry. Co., 33 Ind. App. Rep. 1017, (1904). 337, 67 N. E. Rep. 1013, (1904), it '"Marsh v. Milwaukee Trac. Co.. was held that the act of 1901, giving 134 Wis. 384, 114 N. W. Rep. 804, Interurban railways the right to (1908). cross Intersecting highways and See also sec. 446, ante, railroads, does not authorize the '" Act of May 17, 1894, 91 0. L. 305. appropriation of a railroad right of "° State v. Dayton Trac. Co., 64 794 THE LAW OF STREET RAILWAYS. L§ 474. . company to enter into traffic agreements with other railway com- panies, and that it may provide that they shall issue and accepi free transfers upon their cars within the municipal limits as a condition of such an agreement.^^® It was held in New York that a statute providing that every corporation whose railroad is or shall be intersected by a new railroad shall unite with the cor- poration owning such new railroad in forming the necessary in- tersections and connections and grant the required facilities there- for, and that if the companies cannot agree upon the compensation to be made therefor, or upon the details of the manner in which the intersection shall be made, the same shall be determined by the commissioners, applies to and includes intersections and con- Ohio St. 272, 60 N. E. Rep. 291, (1901). =■" Indiana Ry. Co. v. Hoffman, 161 Ind. 593, 69 N. E. Rep. 399, (1904). But see Interurban Terminal and Ry. Co. V. Cincinnati, 75 Ohio St. 196, 79 N. E. Rep. 240, (1906), hold- ing that sec. 2505 c, R. S. (91 O. L., p. 379), and sec. 3443-11, R. S. (91 O. L., p. 285), conferring upon urban and interurban street railways the right to agree as to the use by the latter of so much of the tracks of the former as may be desirable to enter and pass through a munic- ipality, did hot confer such right conditional upon an exchange of transfers. In this case there was a traffic agreement between two rail- way companies of which the de- fendant company was a consolida- tion and the Cincinnati Traction Company, which was the consolida- tion of a number of companies by virtue of an ordinance imposing a condition that the company must give its passengers, who have paid fare at the cash rates, transfers to its various routes. Traffic arrange- ments with the Cincinnati Traction Company were made prior to the consolidation which formed the de- fendant company. The city of Cin- cinnati commenced an action to compel the giving and acceptance of transfers by the defendant com- pany. The former statute author- izes traffic agreements providing the fare charged by the street rail- way company for the transportation of passengers within a municipal corporation shall not be greater than that fixed in the franchise held or owned by the street rail- way company. The court held that this is a limitation upon the fare which the interurban company may charge for the services it is au- thorized to render within the mu- nicipality and not a requirement that it shall provide or receive free transfers. The later law provides that an interurban railway company may lease, purchase or make traffic arrangements with another street railway as to so much of its tracks as may be necessary or desirable to enable it to enter any city or village upon the same terms and conditions as those applicable to street rail- ways. The court interpreted the phrase "same terms and condi- tions" not to apply to the speculc company owning the tracks, but to the terms and conditions applicable to street railways generally. MTS.J INTEEDEBAN EAII,WATS. 795 nectioiis of traction railways operated by electricity with a railroad operated by steam.^^'' An action for specific performance may be maintained to compel the performance of a traffic agreement. ^^^ § 475. Consolidations, leases, mortgages, etc. — Since the de- velopment of interurban railways there has been rapid consolida- tion of street and interurban railways forming extensive systems covering large sections of territory and engaged in both state and interstate traffie.^^® In most states the interurban railway compa- nies have entered into agreements for the consolidation and leas- ing of other systems under the authority of the laws relating to street railways, although in some states special statutes have been passed relating to interurban companies. ^^^ Where a corporation takes over all the property and franchises of another railway company, it is responsible for its existing liabilities, and cannot repudiate them on the ground that the company whose property is so acquired was insolvent at the time of the conveyance.^^"*^ Where it was recited in the bonds of a railway company which operated a system of different seashore lines, that they were se- =" Stillwater & M. St. Ry. Co. v. such a change of conditions as will Boston & M. R. R. Co., 171 N. Y. affect unfavorably one party or the 589, 64 N. B. Rep. 511, 59 L. R. A. other, but this offers no reason for 489, (1902). refusing specific performance, un- For agreements with railway com- less subsequent events have made panics as to grade crossings, see performance by the defendanF so sec. 450, ante. onerous that the enforcement would ^"Prospect Park R. R. Co. v. impose great hardship and cause Coney Island Ry. Co., 144 N. Y. 152, little or no benefit to the plaintiff." 39 N. E. Rep. 17, (1894). A steam ^>« See note 1, sec. 430, ante, railroad running to Coney Island Chicago & Milwaukee Elec. Ry. entered into a traffic agreement with Co. v. Illinois Cen. R. R. Co., 13 a horse-car line running to the same Interstate Commerce Rep. 20, (1907). place, by which, inter alia, the rail- '^o ggg statutes of Indiana, 1903, road gave the horse-car line the p. 181. right to use its tracks, and the =21 Camden Interstate Ry. Co. v. latter agreed to run to the former's Lee, 84 S. W. Rep. 332, (Ky. 1905). depot and connect with certain fer- it was held in Reynolds v. Pacific ries. Subsequently the latter com- Ry. Co., 146 Cal. 261, 80 Pac. Rep. pany adopted electricity and became 77, (1905), that a transfer of an a rival line to Coney Island. The assignable franchise carries to the court said: "It may very well be assignee all the duties and obliga- that under a contract having twen- tions resting on the assignor, but ty-one years to run there may be that no burden remains upon the 796 THE LAW OF STEEET RAILWAYS. [§ 475. cured by a mortgage on "all the certain railroad and other prop- erty, real, personal and franchises, of the railroad company then owned or afterward acquired by it," and the mortgage conveyance clause limited its lien on after-acquired property to rights ac- quired by lease of other railroad companies "as should be con- nected with or appurtenant to" the railroad of the mortgagor spe- cifically described, it was held that the mortgage lien embraced the rights acquired by lease made after its date to the mortgagor by other railroad companies owning railroads connected with the mortgagor's road and operated ia connection therewith, and the capital stock of, and a lease from, a new corporation organized merely for the purpose of holding title to the railroad of another company similarly operated, all of which was owned by the mort- gagor, together with a line of railroad subsequently constructed by the mortgagor, and operated in connection with its system.^^^ It has been held that a Michigan statute giving a lien to one who "builds or furnishes material for a house or for a structure" does not enure to the benefit of one who constructs a power plant for an electric road and installs machinery therein for the pur- pose of becoming an integral and permanent part of the railway system.^^* intermediate assignee, the privileges the lien of the mortgage superior and benefits having passed on to to the liens subsequently reserved others. in the contracts for furnishing '" Guaranty Trust Company v. material for the road, which when Atlantic Coast Ry. Co., 138 Fed. put in place becomes permanent, Rep. 517, (1905). notwithstanding sec. 6336 providing '"' Detroit Trust Co. v. Detroit F. that any contract for the sale of & S. Ry. Co., 159 Mich. 442, 124 N. railroad equipment or rolling slock W. Rep. 45, (1899). In this case it may provide that the title to the was held that the train railway act, property shall not vest in the pur- sec 35 (Comp. Laws, sec. 6426), pro- chaser until the purchase price is viding that a street railway com- paid; this referring to movable per- pany may, for the purpose of raising sonalty as distinguished from the money to construct and operate its permanent and fixed property form- railroad, give a mortgage on its ing an integral part of the railway franchise, road, superstructure, roll- as an entirety. ing stock and fixtures, and that its in Mersick v. Hartford Horse R. mortgage on its right of way shall R. Co., 76 Conn. 11, 55 Atl. Rep. 664, be a lien thereon and on the su- (1903), a trustee for bondholders in perstructure and fixtures thereon, receivership for foreclosure pro- whether built before or after, makes ceedings operated a leased line in § 476.] INTEETJEBAN EAILWATS. 797 § 476. Interstate commerce law — It was decided by the inter- state commerce commission that the interstate commerce law ap- plies to interurban railways; that the act makes no distinction between railroads that are operated by electricity and those that use steam; and that both are subject to the act when engaged in interstate transportation and are entitled to 'consideration in any controversy before the commission. In this case there was an application by an interurban railway company to establish through routes and joint rates, under section 15 of the act, between points on its own line and points on the line of a steam railroad; the com- plaint was dismissed because the evidence showed that the com- munity was already supplied with reasonably satisfactory through routes.^^* connetLion with the railroad in Co. v. Illinois Cen. R. R. Co., 13 question. It was held that the Int. Com. Rep. 20, (1907). The corn- lessor's claim for rent during the missioner said: "Moreover, prog- trustee's possession, hut for such ress in the science of electricity, period only, was properly allowed and the rapid increase of new de- as a preferred claim entitled to pri- vices for its application, have led ority of payment as against supply- many practical railroad men to creditors and other unsecured cred- think that we may be measurably itors. near its general use as the chief -" Chicago & Milwaukee Elec. Ry. motive power in transportation." INDEX. References are to Sections. ABANDONMENT OP FRANCHISE, effect of Illegal transfer, 11, n. as a ground of forfeiture, 51, 51, n. delay in construction as evidence of, 51. of elevated railway, 184. ABATING NUISANCE. See Nuisance, Street Railway. force may be resorted to in Connecticut, 12, n. this right denied in Pennsylvania, 12, n. and In Ohio, 12, n. ABUTTING OWNERS. See Consent or abutting Owners, Elevated Railways, Tracks, Switches, Street Railways, Poles and Wires, Interurban Railways. cannot object to construction of railway because new pavement has jiist been laid, 14, n. no right of action against city for unauthorized location of tracks, 16. nor for the negligence of the licensee, 16. consent of, as prescribed by statute, 18, n. failure to obtain consent fatal to grant, 18. their consent, when necessary, 18, 21. in New York, those only need sign whose names appear on assess- ment roll, 21. consent of, the New York law, 21. consents given without consideration revocable, 22. consents given by, vest a property right in company, 22. revocation of, 22, 156. variance between petition, or consent, and ordinance, 23. remedy for proceeding without, 24. who entitled to the remedy, 24. cannot discriminate between rival applicants for franchise, 25. imposing conditions in, 27. cannot prevent stopping of cars during public improvement, 42, n. cable railway does not affect abutter's right of access to pipes and mains, 42, n. when they may assert the lapse of the franchise, 51, n. may maintain ejectment against construction of unauthorized railway, 56, n. cannot complain of defective construction unless they sustain special injuries, 59. when non-compliance with statutory requirement as to construction may be abated, 59, n. 799 800 INBEX. References are to Sections. ABUTTING OWNERS— Oo«H«Med:. cannot enjoin change from narrow to broad gauge, 70, n. relations of, to public streets. as members of tbe general public, 77. as owners of the reversionary interest to the center of, 77. incidental rights of ingress and egress, 77. not entitled to protection against mere consequential damages, 77. may prevent destruction or material impairment of their right of access, 77. entitled to compensation for use of street by general traffic railroad, 78 generally not entitled to compensation for use of street for street railway, 80. their right to damages not affected by ownership of fee of street, 81. See Feb. otherwise in New York, 82. not entitled to damages for horse railway in street, 82. when for electric railway, 83. See Electeic Railways, Intebtjbban Railways. when for cable railway, 84. the use of steam as affecting their right to damages, 85, 86, 87. how their rights may be affected by under-ground railways, 88. by elevated railways, 89. See Elevated Railways. by railways carrying both freight and passengers, 90. the general doctrine as to their right to damages, 91. entitled to damages for change of grade, 92, 443, n. for cuts and fills impairing their right of access, 92, 443. not entitled to damages for change of gauge, 93. location of traclts as affecting their right to damages, 94. not entitled to damages for locating turn-outs and side-tracks in front of their property, 95. number of tracks and width of street as affecting their legal rights, 96. injury to property by diverting water upon it, 97. by fire and sparks from elevated railway, 97. by use of snow plow, 98. remedies of — injunction, 99, 100. joinder of parties plaintiff, 100. ejectment, when they own the soil to the center of the street, 99. action at law for compensation for the additional servitude, 99. action at law for impairment of appurtenant easements, 99, 102. measure of damages in, 99, n; 102. proceedings to require the corporation to appropriate, 99. action for forcible entry and detainer, 99. their right of access may be impaired — by storing cars in the street, 80. by excluding travel from narrow street, 80, 91, n. p. 166. INDEX. 801 Beferences are to Sections. ABUTTING OWNERS— Continuea. their right of access may 6e impaired — by substantial change of grade, SO, 92, 91, n. p. 164; 443, n. by cuts and fills, 92. by noise, smoke, steam, cinders and high rate of speed, 80. See Elevated Railways. by use of steam as a motive power, 85, 86, 87. by construction and operation of elevated railway, 89. See Elevated Railways. by noise, smoke, dust and cinders of surface road, 91, n. p. 165. by laying tracks near side walk in wanton disregard of their rights, 91, n. p. 167. by laying side track within sixteen inches of side walk, 91, n. p. 167. by permanently and entirely preventing vehicles from stopping in front of premises, 91 n. p. 168. by changing grade so as to prevent the passage of wagons between curb and rails, 91, n. p. 170. not entitled to injunction or damages — for failing to locate track in the center of the street, 91, n. p. 164. for mere inconvenience or discomfort caused by noise, smoke, dust or cinders, 91, n. p. 165. laying turn-outs in front of property, 91, n. p. 166. preventing wagons and teams standing transversely of the street, 91, n. pp. 167, 170, 171. maintaining, poles at the margin of the side walk with wires suspended thereon, 91, n. pp. 169, 170. See Electeio Railways. maintaining switch in front of property, 95, n. poles in front of property, 130, n. remedy of, for construction and operation of elevated railways, 189-206. right of, to examine maps and plans for elevated railways, 157, n, consent of, 438. compensation to, 442. ACCEPTANCE OF CHARTER OR FRANCHISE, generally made in writing, 31. when formal acceptance not necessary, 31. receiver cannot accept new privileges, 31 n. must be made by grantee, 31. to be valid, must he in toto, 31. ACCORD AND SATISFACTION. See Release. ACQUIESCENCE. See Elevated Railways, Estoppel. ACQUISITION. See Propep.tt, Sale, Mortgahe. 802 INDEX. Befereuces are to Sections. ACTION. See Remedy, Parties, Abutting Owners. nature of passenger's, for personal injuries, 375. for impairment of abutter's rights, 99, 102. ADDITIONAL TRACKS, power to grant, 61. when an additional burden, 188. ADMISSIONS. See Evidence, Declarations. AGE. See Children, Aged and Infirm Persons. AGED AND INFIRM PERSONS. care must be exercised to avert injury to, 305, 310. contributory negligence of, 386. AGENT. See Principal and Agent. ALABAMA. constitution requires consent of local authorities, 28, n. forbids the granting of a perpetual franchise, 17, n. p. 31. burden of proof as to contributory negligence is on the defendant, 381. meaning of phrase, "street railway," 430, n. ALIENATION. See Property, Sale, Mortgage. ALIGHTING FROM MOVING CAR. See Negligence, Contributory Negligence, Passenger. ALTERNATIVE DAMAGES. See Elevated Railways. AMENDMENT. See Constitution, Statutes, Legislature, Charter, City Council, Alteration, Estoppel. of constitution — effect of, on existing charter or franchise, 39. of statute — limitations need not be repeated in amendment of, 45, n. when a waiver of a right of forfeiture, 50. of municipal charter — power of the legislature with reference to, 35. effect on prior municipal grants, 35. of charter of private corporations — power of the legislature with reference to, 36. limitations on this power, 36, 37. effect on the liability of stockholders, 38. power of municipal authorities to impose new obligations, 5, 40, 43. AMENDMENT OP CHARTER. See Amendment, Charter, Municipal Corporations. ANIMAL POWER. See Motive Power. INDEX. 803 References are to Sections. ANIMALS. See HoESES. danger to, from electric current, 133. killed by live wire, 292, n. 32, p. 470. duty to avoid injury to, 309, n. 147, p. 503; 459. criminal liability for cruelty to, 418. APPEAL. See I^TJUNCTiox. APPLIANCES. See Caes and Their Appliances. APPROPRIATION. See Eminent Domain, Elevated Railways. when the power of eminent domain may be exercised, 103, 163. conditions precedent to its exercise, 105. public use a question of law, 104. proceedings and practice in actions for, 106. measure of compensation, 107. of the right to the joint use of tracks, 117. the exclusive use of tracks, 118. the joint use of motive power, 119, 120. the joint use of poles and other fixtures, 121. compensation for joint use of tracks, 114. how compensation determined, 110, 115, 117, 118, 120, 121. measure of compensation, 116. ARBITRATION. of damages claimed by property owners, 29, n. 117. as a method for determining compensation for joint use of tracks. 111, n. p. 206. ARIZONA. the burden of proof as to contributory negligence is on the defendant, 381. ARKANSAS. statute of requires consent of local authorities, 28, n. requires written consent of abutting owners, 18, n. ARM. passenger's, outside of car window, 344, 466. ARREST. See False Abeest, Passenoee. ASSAULT. See Master and Servant, Passengers, Exemplary Damages. of passenger by carrier's servants, 372. of one passenger by another, 374. ASSESSMENTS. of tracks and right of way for street improvements, 275. where not within the space covered by street improvement, 276. for widening streets, 277. 804 INDEX. References are to Sections. ASSESSMENTS— Conimwed. for tlie cost of constructing a sewer, 278. for constructing a street across tracks, 278. ASSIGNMENT. of claim for damages, 198. ASSUMPTION OF RISK. See Negligence, Electricity, Electric Railways, Inteetjeban Railways, Master and Servant. ATTORNEYS FEES. See Counsel Fees. ATTORNEY GENERAL. See Remedies. may prosecute proceedings to annul charter, 44. ATTRACTIVE NUISANCES. See Children, Negligence liability for careless maintenance of, 292. electric light poles held not to be, 292, n. 39, p. 472. turntables, 292. cases relative to, 292, n. unsecured brakes, 332. AUTHORITY. See Nuisance, Consent op Public Authorities. operating railroad without, 11. BAGGAGE. See Common Carrier, Regulations, Packages. BAILEE. negligence of, not imputable to bailor, 362. street railway may be, of merchandise, 324, 358, 376. BASKETS. See Bundles, Packages. stepping off cars encumbered with, 337. may be excluded from cars when not accompanied by passenger, 358. presence of, in car not per se evidence of carrier's negligence, 358, n. passengers who attempt to step over, assume the risk of so doing, 358, n. BELL. See GoKG or Bell. BENEFITS. considered in proceedings to condemn, 107, 176. considered in determining the amount of damages, 195. considered in making local assessments, 275. BIDS FOR FRANCHISE. See Franchise. consent enures to the best bidder under the statute, 25. no favoritism can be shown to bidders, 25. all proposals may be rejected for sufficient reasons, 25. INDEX. 0< Befereuces are to Sections. BIDS FOR FRANCHISE— CowtiwMed. when a new letting may be had, 25. time and manner of receiving bids, 26. power of municipal authorities with reference to, 26. BILL. See Injunction. BILL IN EQUITY. See Remedy, Poefeituke. forfeiture on bill in equity, 49, 49, n. 59, p. 93. BLIND PERSONS. See Sight, Intiem Persons. BOARDING MOVING CARS. See Neglicence, Contributoet Negligence, Passenger. BONDS. See Counsel Fees. action on bond for failure to repair, 249. taxation of, 274. BONUS. 1 See Compensation. for use of streets, 284. exaction of, as affecting power to tax, 285. payment of, as affecting right to exact license fees, 286. how amount found and determined, 287. BRAKE. See Cars and Their Appliances. liability of master for injury to servant caused by defect in, 413. BRAKE HANDLE. injury to passenger by careless use of, 355. BREWERY. siding to reach, an additional burden, 8, n. BRIDGES. joint use of, by railway companies, 108, n. in Iowa bridge held not to be part of street, 240, n. when they must be kept in repair, 242, n. 2, p. 406; 248. duty of railway company to keep in repair, 242, n. 3, p. 406; 248, 201, constructed by railway company, when not taxable against it, 271. duty to maintain safe approaches, 292. approaches to, must be kept in repair by railway company, 292. liability to passengers for injuries caused by defects in, 331. Injuries caused by defective draw-bridge, 361. BUILDINGS. See Elevated Railways. Interference with wires by moving, 42, n. location of, under New York Rapid Transit Act, 161. obstructing tracks by moving, 303, 453. 806 INDEX. Beferences are to Sections. BUNDLES. See Baskets, Packages. BURDEN OF PROOF. See Evidence. BY-LAWS. See REGtTLATIONS. CABLE RAILWAY. See Abutting Owners. mayor may be compelled to issue permit for, 37, n. endless cables may be substituted for animal power when authorized by legislature, 37, n. is a legitimate use of the street, 84. CALIFORNIA. statute of requires consent of local authorities, 28, n. authorizes the use of electricity as a motive power, 15, n. constitution of forbids the remission of forfeitures, 45, n. statutory provision of as to when track must be commenced and com- pleted, 47, n. construction of statutory provision against remitting forfeitures, 50, n. by statute authorizes joint use of tracks a distance of five blocks, 115, n. requires new company to pay half the cost of construction, 115, n. requires that the passengers be furnished tickets or checks, 239. statute of as to street paving and repairs, 242, n. p. 405. railway tracks are assessable for cost of widening street, 277. rule in, as to driving across tracks without looking and listening, 315, n. as to imputed negligence, 392, n. p. 641. burden of proof as to contributory negligence is on the defendant, 381. permits the negligence of the parents to be imputed to their children, 389. when employer not liable to servant for salary left with its secretary, 419. CANADA. statute of Ontario makes non-user a ground of forfeiture, 47, n. gives companies unlimited discretion as to motive power, 67, n. empowers the municipality to authorize any pattern of rail, 72, n. permits joint use of existing track for a distance of two hundred yards, 115 n. p. 213. in case of disagreement, compensation fixed by arbitrators, 115, n. p. 213. statute of, as to street paving and repairs, 242, n. p. 407. wires, poles, etc., of street railway are taxable as real estate, 271, n. rule in, as to driving across track without looking or listening, 315. rule in, as to contributory negligence, 378. CANCER. development of, as a ground of recovery of damages, 409. INDEX. 807 References are to Sections. CAPITAL. See FoBFEiTTJEE, Capital Stock. CAPITAL STOCK, taxation of, 274. CARE. required at curves in the street or route, 307. degree of, to avoid injury to travelers in the street, 309. to avoid injury to children and Infirm persons, 310. degree of, required of general traveling public, 317. a high degree of, must be exercised for the safety of passengers, 328. the rule as declared by the courts of different states, 32S. to what the rule applies, 327. degree of, to be exercised for the protection of the young and the infirm, 330. passengers must exercise for their own protection and safety, 329. of passenger, to prevent falling while standing in car, 342. to avoid coming in contact with obstacles near track, 344. of carrier, due to passengers while entering car, 348. to passengers while leaving the car, 349, 350. to prevent children from occupying positions of danger on car, 351. to prevent women or children from entering or leaving the car while it is in motion, 353. to prevent the cars and steps from becoming crowded, 355. in driving open cars near obstacles on the street, 360. in the removal of sicli passengers, 368. in expelling persons from the car while it is in motion, 371, 372. to prevent the injury of passengers by each other, 374. to care for articles left by passengers in the car, 376. CARRIER. See Common Cabeieb, Stbeet Railway, Intebubban Railway, Negligence, Conteibutoey Negligence. the street railway is a common carrier of passengers, 1, 324. it may he a carrier of goods, 324. liability for care and custody of articles left by passenger in the car, 376. regulations as to size and character of packages carried by passen- gers, 358. packages not accompanied by passengers may be excluded from the car, 358. extra charge may be made for large packages, 358. of passengers, duties of, generally, 327. not required to carry fire extinguishers, 326, n. 19. degree of care required of, 348-355. See Caee measure and elements of damages for injury by, 409. when liable to exemplary damages for acts of its servants, 410. 808 INDEX. Eeferences are to Sections. CARS AND THEIR APPLIANCES. See Negligence. regulation as to numbering cars, 239. as to their distance apart, 239. statute regulating mode of entering and leaving cars, 227. taxable as personalty, 272. need not be inspected during the trip, 296. using, when known to be defective, is negligence, 296. cars have paramount right of way although snow has been cleared from the track, 303. opinion evidence as to the time and space within which they may be stopped, 403. are not considered real estate, 422. may be seized and sold on execution, 422. duty of the carrier to inspect, 332. injuries caused by defects in, 332. the natural effect of the climate on, must be anticipated, 332. permitting snow and ice to remain on the steps, 332. permitting sheet iron covering of wheel to project above the floor, 332. the carrier is not bound to admit passengers into defective cars, 332. when a car is disabled en route, passengers must be notified of its condition, 332. failure to enclose and guard front platform, 333. CAR WINDOW. See Window. CATTLE GUARDS. See Fences. duty of interurban companies to provide, 459. CHANCELLOR. permission of, to purchase at judicial sale, 427. CHANGE OF MOTIVE POWER. See Motive Powee. legislature may authorize, 69. may be authorized by local authorities, 69. newly discovered means of propulsion may be authorized, 69, 69, n. commissioners having authorized change, cannot alter their decision, 69, n. animal power may be superseded by electricity, 69. or by the grip cable, 69. use of a new motive power. 111. use of electricity as a motive power, 126. CHARITY. as an excuse for traveling on Suaday. See Sunday. INDEX. 809 References are to Sections. CHARTER. See Franchise, Pekpetuitt, Forfeiture, Street Railways, Ele- vated Railways, Street Paving and Repairs, Police Powers, License and License Fees. must be derived from the state, 3. its source and scope, 3. Implied conditions and limitations in, 4. its legal character, 4. is a contract, 4, 5, 6. this principle applied to street railways, 5. definition of, 6. distinguished from franchise, 6. is protected by the constitution, 6. is the instrument or evidence of a public grant, 6. limiting character of business, 9. effect of using passenger line for freight purposes, 9. freight line to carry passengers, 9. authorized business cannot be changed, 9. when company can be compelled to carry passengers, 9. when change of business a public nuisance, 9, n. perpetual, may be granted by legislature, 17. or for a definite period extending beyond life of grantee, 17. acceptance of, 31. how accepted, 31. how construed, 33. receives that interpretation which is most favorable to the public, 33. qualifications of this rule, 34. illustrations of the rule, 34, n. rule of construction as to the conduct of the corporation, 33. how franchise affected by amendment of city charter, 35. amendment of city charter, 35. power of legislature to amend, 36. compulsory amendment of, when unconstitutional and void, 38. power of legislature to suspend or revoke, 39. how this right may be reserved, 39. power of municipal authorities to amend or revoke, 40. release of grantee from charter obligations, 41. temporary suspension of business does not violate charter rights, 42. otherwise as to strictly private enterprise, 42. is strictly construed against the grantee, 43. intent to renew must be clearly expressed, 43. terms of, construed in forfeiture proceedings, 46, 46, n. forfeiture of rights under, 51. waiver of the forfeiture, 50. failure to construct street railway In manner required by, 52. not invalid in toto, because it authorizes the use of steam, 67, n. how far provisions of, subject to the exercise of police power, 220. power to impose regulations, 221. 810 INDEX. Befeiences are to Sections. CHARTER — Continued. of the local authorities to regulate, 222. ordinances passed in pursuance of express powers, 223. regulations based on general or implied powers, 224. presumption in favor of validity of, 224. power of courts to review, 224. ordinances requiring driver and conductor on each car, 225. ordinances prescribing degree of care in operating cars, 226. qualifications of conductors and motormen, 451. ordinances relating to speed and stops, 229. regulations requiring the cleaning and sprinkling of tracks, 230. regulations as to construction and equipment of the road, 231. regulation of fares, 232, 233. fixing of hours and intervals for running cars, 234. regulating the use of snow plows, 235. requiring quarterly reports, 236. regulations as to transfers and coupon tickets, 237. prohibiting the use of salt on tracks, 239. requiring the cars to be numbered, 239. street paving and repairs — how the duty to pave is created, 233, 241. duty to repair bridges, 248. extent of duty to repair streets, 250. duty to pave in case of extension, 252. tracks must be relaid when rendered necessary by street improve- ments, 253. who to determine the necessity, time and character of improve- ments, 254. when the company may be excused from paving, 259. liability of lessee to pave and repair, 265. to pay license fees, 280. when duty to pave cannot be enlarged by , subsequent act or ordinance, 242. duty of consolidated company to pave and repair, 266. taxes, assessments and license fees — exemption from taxation, 267, 269. commutation of taxes, 268. change in the mode of taxation, 270. assessments for street improvements and other purposes, 275, 276, 277, 278. power of municipalities to exact license tees, 280, 281, 282, 283. of consolidated company, provisions in, when binding on old stockholders, 429. of constituent companies, surrendered in case of consolidation, 429. CHARTER RIGHTS. See Chabteb. CHATTELS. what property of street railway taxable as, 272. INDEX. 811 Keferences are to Sections. CHILDREN. See Infants, Negligence, Conteibutoey Negligence, Passengees, Attractive Nuisances. injury of by operation of turn-table, 292. by turn-tables left in an Insecure condition, 292. greater vigilance required at points much frequented by, 305. going upon track while driver's attention is diverted, 306. attempting to cross track 20 or 30 feet in advance of the horses, 307. vigilance required to avoid injury to, 309, 310. driver must not presume that they will act with prudence, 310. boarding cars between parallel tracks, 310. crossing immediately behind a passing car, 310. boarding the car by the rear platform, 310. i'alling under the wheels between the platforms, 310. child six years of age playing in the street near the track, 310. child ten years of age attempting to cross in advance of the car, 311. boy six years of age crossing track without looking, 312 n. p. 511. rights of, although riding free, 326. newsboys, 326, 365. compelling children to ride on platform, 330. degree of care due to infant passengers, 330, 349. interference with brakes by mischievous boys, 332. boarding car while it is in motion, 336. failure to stop for, 336, 337, n. jumping off when ordered by conductor, 337. or to avoid a blow from the driver's whip, 337. jumping off between parallel tracks, 346, n. becoming frightened and running in front of horses, 348. entitled to more time to alight than adult passengers, 349. riding on front platform, 338, n. 116, p. 553; 351. permitting children to ride on platform, 351. negligence of a boy of thirteen in projecting his knees beyond the car, 351. watchfulness of conductor to prevent injury to children who are passengers, S51. permitting chil'dren to enter or leave the car by the front platform, 352. duty to prohibit enforced by ordinance, 353. violation of regulations by children, 356. riding free as compensation for opening a switch, 365, n. jumping off the car when frightened by conductor, 365, n. shouting at boy, who, frightened, falls off, 365, n. boy invited on car by conductor not a trespasser, 365, n. forcibly ejecting, from moving car, 365, 371, 372. contributory negligence of, 385. below what age they are presumed to be non sui juris, 385. above what age they are presumed to be sui juris, 385. within what ages the question is for the jury, 385. 812 INDEX. Beferencea are to Sections. CHILDREN — Continued. what constitutes negligence of parents In exposing their children to danger, 387. the poverty of parents as affecting the question of their negli- gence, 388. imputing to children the negligence of their parents or custodians, 389. the negligence of parents as affecting their right to damages for Injury to children, 390. as a bar to an action by the personal representative, 391. CINDERS. See Elevated Railways. emission of, as an element of damage, 80. CITIZEN. See Remedies. CITY. See Municipal Cokpoeations. CITY COUNCIL. See Municipal Coepoeations, Police Poweb. cannot abrogate its powers, 4, 222, n. 16, p. 363. cannot delegate Its legislative functions to executive officers, 14. in Ohio must grant franchise to best bidder, 15, n. regularity of proceedings of, when presumed, 19. cannot depart materially from route petitioned for, 23. may grant part only of the route petitioned for, 23. when all bids for franchises may be rejected, 25. may adopt rules to govern reception of bids, 26. not bound by conditions expressed in petition or consent, 27. its discretion not subject to judicial control, 40. when controlled by specific legislation instead of by city charter, 56. CITY ENGINEER. judgment of, not conclusive as to mode of laying tracks, 292. CLIMATE. natural effect of, on tracks, must be anticipated, 332. COACH COMPANIES. See Joint Use of Tbacks. COAT. diligence required of passenger when carrying upon his arm, 348. CO-EMPLOYE. See Masteb and Sebvant. COLLISION. See Negligence, Conteibutoet Negligence, Ebeoe op Judgxient. COLOR. See Passengee. as a ground of classification of passengers, 325, 325, n. COLORADO. franchise can be granted in, only by general law, 3, n. p. 7. constitution of, requires consent of local authorities, 28, n. INDEX. 813 References are to Sections. COLORADO — Continued. statute of, requires consent of local authorities, 28, n. rule in, as to driving across tracks witliout looking and listening, 315, n. the burden of proof as to contributory negligence is on the defendant, 381. COMMERCIAL RAILROAD. distinguished from street and interurban railways, 431. an additional servitude, 440. interurban road largely resembles commercial railroad, 440. taxation of, 452. See Railkoads. COMMISSIONERS. See Mayor's Commissioners, Supreme Court Commissioners, County Commissioners, Interurban Railvtays. COMMISSIONERS ACTING IN LIEU OP ABUTTING OWNERS, in New York, parties to proceedings of, 21. confirmation of report of, 21. appointment of new commissioners, 21, n. See Elevated Railways COMMISSIONERS OP HIGHWAYS. cannot prevent company from abandoning a portion of its route, 56, n. COMMON CARRIER. See Street Railways, Elevated Railways, Interurban Railways, Passengers, Negligence, Care. street railway is of passengers, 1, 324. may be of goods, 324. charge may be made for parcels exceeding a designated size, 358. care and custody of articles left in car, 376. COMMON COUNCIL. See City Council. COMMON EMPLOYMENT. See Master and Servant, Servant. COMMONS. See Public Parks and Squares. COMMUTATION OF TAXES. See Taxation. COMMUTATION TICKETS. See Coupon Tickets. when company must furnish to passengers, 239. COMPARATIVE NEGLIGENCE, the doctrine of stated, 379. not the general rule, 379. courts have repudiated doctrine of, 379, p. 615. the states in which it is recognized, 379. COMPENSATION. See Damages, Eminent Domain, Abutting Owners, Elevated Railways, Interurban Railways. 814 IliTDEX. Beferences are to Sections. COMPENSATION— (?o«ti«Me(i. for use of streets, 3, 284. none required for use of railway tracks by ordinary veliicles, 110. must be made for use of tracks by cars of anotlier company, 111, 114. for interruption of business while changing tracks. 111. how compensation ascertained and determined, 115. measure of, 116. for joint use of motive power, 119, 120. for joint use of poles and other fixtures, 121. for injury to tracks by cars of second company, 125. for the use of streets for street railways, 287. COMPENSATORY DAMAGES. See Damages, Exemplaey Damages, Punitive Damages. when the amount of the recovery should be limited to, 410. when a,warded, 410, n. CONDEMNATION. See Eminent Domain, Appkopriation. CONDEMNATION PROCEEDINGS. See Eminent Domain. to acquire right of way for elevated railways, 163-182. CONDITIONS. new, may be imposed on renewal of charter, 43. CONDITIONS IMPOSED BY PROPERTY OWNERS. See Consent of Abutting Ownebs. aONDITIONS PRECEDENT. See Eminent Domain, Peanohisb, Consent op Abutting Owners, Street Railways, Elevated Railways, Forfeiture. CONDITIONS SUBSEQUENT. See Forfeiture. CONDUCTOR. See Master and Servant, Negligence, Exemplary Damages, Carrier. power of municipality to require employment of, 225. to prescribe duties of, 226. cannot prescribe qualifications of, 451. whether negligence to operate cars without, 308, 332, n. 65, p. 543; 374. failure to employ both motorman and, held negligence per se, 308. failure to employ both driver and conductor, 335. authority of, to maintain order and expel disorderly passengers and trespassers, 367. responsibility of the master for his acts, 367. causing false arrest of passenger, 373. malicious prosecution by, of passenger, 373. assault and battery by, of passenger, 372. not liable for a criminal assault if he acts in good faith, 372. use of excessive force in expelling passenger, 372. failure of to preserve order, 374. INDEX. 815 Beferences are to Sections. CONDUCTOR— Cowtinwed. permitting car to be over-crowded, 374, n. 319. when recovery by, will not be barred by his knowledge of defective brake, 413. CONNECTICUT. remedy in.Ior laying tracks without authority, 12, n. city council in, may prescribe kind of rail, 72, n. abutting owner not entitled to compensation for use of street, 82. statute of, as to street paving and repairs, 242, n. p. 405. rule as to driving across tracks without looking and listening, 315, n. the burden of proof as to contributory negligence is on the plaintiff, 381. traveling on Sunday, held not to be contributory negligence, 366. CONSENT OP ABUTTING OWNERS. See Stbeet Railwats, Elevated Railways, Abutting Owners, NinSANCE, INTEBUEBAN RAILWAYS. in Illinois, for freight purposes necessary, 9, n. in Ohio, necessary, 12. finding as to by local authorities not conclusive, 12, n. in what states required by general statute, 18. in New York, consents must be obtained before appointment of com- missioners, 18, n. in New York, required by constitution, 18. such requirements are jurisdictional, 19. strictly construed in favor of abutter, 19. cannot be waived by municipal authorities, 18. consent for single track does not authorize double track, 19. consents must be obtained for each portion of the line, 19. second company must obtain consents in order to use tracks of first company, 19. the action of city councils as to, may be reviewed by courts of equity, 19. who may sign statutory consent, 20. when unauthorized consent cannot be ratified, 20, n. not necessary for renewal or extension of grant, 43. diligence required in obtaining, in New York, 48. when to be obtained and how proved, 21. the New York law, 21. in New York, commissioners may be appointed before consent of other companies is obtained, 21. commissioners not appointed until after bona fide effort to obtain consent of abutters, 21. how consent may be revoked, 22, 156, n. when given without consideration is mere license, 22. variance between petition, or consent, and ordinance, 23. council may grant part only of the route petitioned for, 23. but cannot substitute one route for another, when, 23. 8 it) INDEX. Befereuces are to Sections. CONSENT OF ABUTTINO OWNERS— Contimtted. constructing road -without, may be enjoined by abutting owners, 24. but not by other citizens or tax-payers, 24. or on information filed by attorney-general, 24. when by city solicitor, 25, n. enures to best bidder. 25. but all bids may be rejected, 25. when discretion of council not reviewable, 25. conditions imposed by property owners, 27. necessary for underground railway, 88. necessary under the New York Rapid Transit Act, 156. where necessary for the extension of tracks, 63. CONSENT OP ELECTORS. required by constitution in Nebraska, 28, n. CONSENT OP LOCAL AUTHORITIES. See Street RAiLWAys, Elevated Railways, Intebubban Railways. generally a prerequisite to street railway franchise, 13, n. in what states required by constitution, 28, n. in what states required by general statute, 28, n. when must be obtained before work of construction is commenced, 28. meaning of the term "local authorities," 28, p. 48. consent of all local divisions must be obtained, 28. when consents cannot be withdrawn, 28. requirements as to, in England, 28, n. power to impose conditions upon grantee of franchise, 29, 30. limitations on the power, 29. imposing conditions precedent or subsequent, 29. after grant is made, further conditions cannot be imposed, 29. power of local authorities to impose conditions of forfeiture, 30. when not necessary for the extension of original lines, 63. necessary under the New York Rapid Transit Act, 156. CONSOLIDATION. the obligations of consolidated company binding on the constituent companies, 266. corporations can consolidate only by legislative permission, 429. many of the states forbid parallel or competing steam railroads from consolidating, 429. this is not usually applied to street railways, 429. the legal effect of consolidation upon the constituent corporations, 429. the consolidated company assumes the liabilities of its constituent companies, 429. Georgia constitution forbidding corporations to purchase stock of other corporations applies to street railways, 429. a dissenting stockholder may refuse to take stock in the new cor- poration, 429. and enjoin the consolidation until his rights are secured, 429. directors may be liable for procuring a fraudulent consolidation, 429. INDEX. 817 Eeferences are to Sections. CONSOLIDATION— Co?i«nMetf. when stockholders in the old companies are not bound by the rules of the new one, 429. consolidated company cannot deny its liabilities for contracts or torts, 429. consolidated company cannot raise question of Insolvency of one of constituent companies, 429. action against constituent company commenced after consolidation cannot be maintained, 429, n. CONSTITUTIONAL, LAW. when conditions imposed by constitution not exclusive, 3. a mere license not "a special privilege or immunity," 6, 55, 63. curative acts must not be repugnant to constitution, 15. states requiring consent of local authorities, 28, n. states requiring consent of abutting property owners, 28, n. in Nebraska, consent of electors required, 28, n. reservation of power to repeal charters does not authorize destruction of property rights, 36. how right to revoke a charter may be reserved, 39. amendment of constitution cannot impair vested rights, 39. ordinance, where law of the state, 40, n. 25. provision of California constitution as to the remission of forfeiture, construed, 46, n. inhibitions against granting special or exclusive privileges, immuni- ties of franchise, 55. granting privilege to extend tracks not a special act conferring corporate powers, 63. special act authorizing changes in construction and equipment not inhibited by constitution, 69, n. 60, p. 131; 73. amendment of New York constitution relating to street railways, 153. ordinances requiring quarterly reports not unconstitutional, 236. statute requiring free transportation of policemen and firemen uncon- stitutional, 233, n. 51, p. 384. when property may be exempt from taxation, 267, 269. power under, to commute taxes, 268. power to change the mode of taxation, 270. construction of constitutional provisions relating to the liability of stockholders, 405. a prohibition against the consolidation of railroads does not apply to street railways, 429. CONSTITUTIONAL LIMITATIONS. See FoBFEiTUBE, Constitutional Lavt. CONSTRUCTION AND EQUIPMENT. See Chabtek, Foefeituke, Elevated Railwats, Tbacks, Negli- gence, Abutting Owners, Eleotkic Railways. grantee must conform to statute or ordinance, 58. extent of the common law duty, 58. 818 INDEX. References are to Sections. CONSTRUCTION AND EQUIPMENT— ConHmtterf. when company may adopt mode of construction In general nse, 58. remedy for defective construction — mandamus, 59. forfeiture of charter, 59. indictment when condition of tracks amounts to a public nui- sance, 59. when abutters cannot enjoin, 59. failure to lay tracks within time prescribed, 47. statutes fixing time for, 47, n. how time computed, 48. failure to comply with charter a ground of forfeiture, 52. the failure must be substantial, 52. how duties as to, may be enforced, 65. gauge of track, 70. change of grade, 71. what kind of rails may be used, 72. changes authorized by special act, 73. plans for, under the New York Rapid Transit Act, 160. CONSTRUCTION OF CHARTER. See Charter. CONTRACT. See Chaeteb, Constitutional Law, Oedinance. a charter is a, 4, 5. this principle applied, 5, 40. between public and private corporations, how proved, 32. CONTRACTOR. See Independent Contractor. CONTRACTOR'S LIEN. See Liens. CONTRIBUTORY NEGLIGENCE. See Negligence, Imputed Contributory Negligence, Chil- dren, Aged and Infirm Persons, Passenger, Pedestrian, Driver, Firemen. the general rule of, stated, 378. of trespasser on track laid through private grounds, 290. children injured by turn-table, 292. firemen driving over track known to be defective, 292, n.; 318. slipping on ice left in the space between, parallel tracks, 293. permitting horses to stand in close proximity to a snow plow, 294. driving timid horses near electric or cable cars, 297, 298. driving street car upon railroad crossing without looking, 301. the law of the road not applied to street cars and private vehicles, 302. street cars hav« the paramount right of way, 303. other travelers must observe this right, 303. this paramount right of way does not exist at street crossings, 304. INDEX. 819 References are to Sections. CONTRIBUTORY NEGLIGENCE— ConimMecf. the driver or motorman may assume that other travelers will leave the track in time to avoid Injury, 305. this rule does not apply to young children, 305, 310. child of eight years crossing the track immediately behind a car, 310. boy attempting to board car from between parallel tracks, 310. child attempting to board the car by the rear platform, 310. pedestrians and others must look and listen before attempting to cross the track, 311, 312, 315. they must not take doubtful chances, 311. child of ten years attempting to cross in advance of the car, 311. persons walking in a procession near the track, 311. standing upon or walking along the track without looking, 313. workmen in the street falling to observe the approach of the car, 3! 4. driving private vehicles along the track ahead of the car, 316. behind a car going up a steep grade, 316. along the side of the track, 323. degree of care required of other travelers, 317. attempting to drive across the track in buggy with curtains closed, 317. driving over a bank of snow thrown up from the railway tracks, 317. falling while attempting to cross the track, 317. permitting a wagon to stand too near the track, 321. permitting restive horse to stand untied in the street, 322. no presumption of negligence arises from a collision, 323. of passengers — after leaving the car, 326. failing to observe the reasonable rules and regulations of the carrier, 329, 356, 357, 358. boarding car at a dangerous place in the track, 331. stepping off into an excavation, 331. leaving seat while car is rounding curve, 342, n. 141. boarding or leaving car by front platform, 333, 343. boarding car while it Is in motion, 336. risks assumed by persons who make the attempt, 336. when encumbered with bundles, 336. leaving car while in motion, 337. risks assumed by passengers who make the attempt, 337. stepping ofC the car while it is being slowed up, 337. when encumbered by load or bundles, 337. See Packages. riding on front platform, 338. riding on rear platform, 339. riding on driving-bar or dash-board, 340. sitting on steps, 340. riding on step or footboard, 341. standing in car, 342. protruding head, arm or hand from window, 344. protruding elbow three inches beyond sill, 344, n. 820 INDEX. References are to Sections. CONTRIBUTORY NEGLIGENCE— OoratteMed. of passengers — placing head beyond edge of platform, 344, n. preparing to alight while the car is in motion, 345. alighting from or boarding the car from between parallel tracks, 346. passing around in front of car on parallel track, 346, n. 155. remaining in car until it starts on its return trip, 349, n. attempting to alight without notifying conductor, 350. leaving car by front platform, 352. taking passage on a crowded car, 355. passenger thrown from car by others who are leaving it, 355. stumbling over packages in the aisle, 358. negligence as affected by knowledge of obstacle near track, 360. passengers not responsible for the negligence of their carrier, 362. traveling on Sunday, 366. injury of one passenger by the negligence of another, 374. jumping from street car to avoid a collision, 383, n. when the horses are running away, the driver having aban- doned the car, 383, n. negligence and willful or malicious acts distinguished, 378. not negligence for pregnant woman to take passage on a street car, 378, n. burden of proof as to the negligence of injured person, 381. pleading freedom from negligence on the part of the injured person, 381. voluntary exposure to danger to save human life is not per se negli- gence, 382. adopting dangerous alternative when exposed to real or apparent imminent peril, 383. degree of care required of children, 385. contributory negligence of children, 385. contributory negligence of aged and infirm persons, 386. negligence of parents, guardians, or other legal custodians — See Imputed Contbibutoby Negligknoe. what constitutes, 387. poverty of parents as affecting the question of their negligence, 388. imputing to children the negligence of their parents, guardians or custodians, 389. negligence of parents as affecting their right to damages for injury to child, 390. imputing negligence of parent or other cilstodian to the infant's personal representative, 391. negligence of husband not Imputable to wife, 392. imputing negligence of drivers of private vehicles to their fellow- passengers, 393. intoxication as an excuse for, 395. INDEX. 821 Beferences are to Sections. CORPORATIONS, PRIVATE, organization of, 10. substantial compliance witli statute necessary, 10. irregularities not necessarily fatal, 10. failure to comply with statute, effect of, 10. usurpation of franchise may be questioned by the state, 10. may be waived by the state, 10. when by abutting owners, 10. when not by other corporations, 10. how existence and regularity questioned, 10. illegal organization of, effect on their powers, 11. forfeiture of their charters, effect of, 11. organized for private purposes, 11. acting under charter granted ultra vires 11. illegal transfer of franchise to, 11. rules for construing charter of, 33, 34. power of legislature to withdraw franchise of, 36. limitations on this power, 36, 37. may be liable for exemplary damages, 410. existence of, must be plead in actions to declare a forfeiture, 44. power of, to sell franchises and other property, 422. to mortgage property, 423. to borrow money to construct the road implies the power to mortgage, 423. but such mortgages cannot cover a prerogative franchise, 423. effect of dissolution on the mortgagee's rights, 423. power to lease franchises and other property, 424. rights and liabilities of lessor and lessee of railway property, 425, 426. consent of, for director to buy property at judicial sale, 427. judicial sale of the franchise and other property, 427. liens of contractors, mechanics, laborers and material-men against corporate property, 428. consolidation of railroad and railway corporations, 429. COUNCIL. See City Council. COUNSEL PEES. for arguing an appeal, not recoverable, 190. not recoverable in suit on injunction bond, 101, n. 52, p. 185. COUNTY COMMISSIONERS. See Commissioners. may require railway to be laid on established line, 56, n. COUNTY SUPERVISORS. power of, to appoint commissioners under New York Rapid Transit Act, 155. COUPON TICKETS. See Commutation Tickets, Tkansfees. regulation and custom concerning, 237. 822 INDEX. Beferences are to Sections. COURTS. cannot override discretion of the legislature, 39. or of municipal authorities, 40. CRIMINAL ACTS. See Passengebs, Conductoes. of servant, liability of master for, 372, 410. CRIMINAL, LIABILITY. for causing death by negligence, 396. of conductor or driver for cruelty to animals, 418. CRIPPLE. contributory negligence of, 386. CROSSINGS. See Street Paving and Repairs, Negligence, Cross-w^alks, Grade Crossings. rule at street crossings, 304. CROSS-WALKS. when not included in the duty to repair streets, 292. CRITELTY. to animals, criminal liability for, 418. CULVERT. during construction of, running of cars may be stopped if necessary, 42, n. CURATIVE STATUTES. See Statutes. CURVE. See Negligence, Passenger. CUSTODIAN. See Parents, Contkibutoet Negligence, Imputed Contributory Negligence, Children. CUT-OFFS. liability for failure to provide, 134. See Electric Street Railways. DAKOTA. the burden of proof as to contributory negligence is on the defendant, 381. DAMAGES. See Abutting Owners, Measure of Damages, Alternative Damages, Exemplary Damages, Compensation, Eminent Domain. total recovery in a single action, 99, n.; 102. in elevated railway cases, 194. measure of. In appropriation proceedings, 107. for injury to horse railway by electric motors, 125. for interference with telephone current, 135, and notes, for cost of making retaining wall, 93, n. 39, p. 173. measure of, in condemnation proceedings in New York, 177. INDEX. 823 References are to Sections. DAMAGES — Continued. elements and measure of, in elevated railway cases, 189-206. exemplary and excessive, 197. assignment of claim for, 198. interest on, 199. nature of passenger's action for, on account of personal injuries, 375. fright and its consequences as a cause of, 408. elements and measure of, in personal injury cases, 409. aggravated injuries, compensation for, 409, n. exemplary and punitive, 364, n. 263; 410. in an action against joint tort-feasors, 410. other questions concerning, 200. DANGER. See CONTEIBDTORY NEGLIGENCE. to human life from electric current, 132. to animal life from same cause, 133. testimony of Thomas A. Edison, 132, n.; 133. of George W. Mansfield, 132, n. p. 237. knowledge of, by servant, when a defense to the master, 413, 414, 415. DANGEROUS ALTERNATIVE. when the adoption of, is not contributory negligence, 383. DANGEROUS POSITION. See Passengeb, Contbibtjtoey Negligence. DARKNESS. See Night. DASH-BOARD. riding on, is contributory negligence, 340. DASH-RAIL. See Dash-Board. DEAF PERSONS. See Hearing, Disabilities. DEATH. statutes relating to actions for, 472. DECLARATIONS. See Evidence. of injured person, when competent, 398. of defendant's servants, when competent, 399. privileged communications, 399. of third persons, incompetent, 401. DECREE. provisions and form of, in elevated railway cases, 193. DEFECTIVE HIGHWAYS. See Streets, Street Paving and Repairs, Negligence, Remedies. DELAY. See Forfeiture, Estoppel. legal proceedings as an excuse for, 48. when not excusable, 46, 47, 48. 824 HSTDBX. References are to Sections. DELEGATION. See Power. DEPOT. See Switches. DERAILING SWITCH. See Gkade Crossings. DIFFERENT KINDS OF MOTIVE POWER CLASSIFIED. See Motive Power. DILIGENCE. See Cabe, Negligence, Contkibutoby Negligence. DILLON. view of, as to mode of ascertaining compensation for joint use of tracks, 115, n. p. 214. DINNER BUCKET. diligence required of passenger when encumbered with, 348, DIRECTORS. may extend tracks without concurrence of stockholders, 63. liability of, for torts of the corporation, 405. purchase by, of corporation property at judicial sale, 427. DISABILITIES, PHYSICAL. See Aged and Infirm Persons, Blind Persons, Deaf Persons, Intoxication. DISCRETION. See Legislature, City Council, Courts. of legislature, not subject to judicial control, 39. the same principle applied to municipal corporations, 40. local authorities have none, to disregard location prescribed by stat- ute, 56. of company in locating turn-outs and side-tracks, 95. DISORDERLY CONDUCT. of passengers, justifies their expulsion, 369. duty of conductor or driver to prevent, 374. liability of carrier for injury of passenger caused by, 374. DISTRICT OF COLUMBIA. tracks in, must be laid with a flat groove rail, 72, n. statute of, as to street paving and repairs, 242, n. p. 407. DIVIDENDS. taxation of, 274. rule for forfeiting by consolidated company, when not binding on stockholders of constituent companies, 429. DOCK. may be appropriated, 118. DOOR. Injury caused by defective fastening of, 3"2. INDEX. 825 References are to Sections. DOUBLE TRACK. option to construct may be conferred upon licensee, 61. duty to pave between, 246. allgliting from or boarding car between, 326, n. p. 531; 346. See Abutting Owners, Fokfeituee, Tbacks. DRIVER. See Driving, Motorman, Conductor. of street car — power of municipality to prescribe duties of, 226. duty of, to keep a lookout ahead of his car, 305, 306. employment of driver who is physically incompetent, 305, n. 115, p. 494. may assume that others will exercise care, 305. to avoid injury to other vehicles, 306. attention of, temporarily diverted from the track, 307. whipping horse which is being led near track, 322. permitting single-tree to drop on the horse's heels, 322. intoxication of, as evidence of negligence, 323. failure to employ both driver and conductor, 335. authority of, to maintain order and expel disorderly passengers and trespassers, 367. liability of his employer for torts committed by, 367. continuing in service after knowledge of defect in platform, 413. of private vehicle — must leave track to avoid collisions, 303. duty when approaching private road, 304, n. must look and listen before driving across tracks, 315. must look back from time to time when driving on the track, 316. when negligence to follow car in close proximity, 316. error of judgment in leaving wagon too close to the track, 321. when his negligence is not imputed to a fellow passenger, 393. DRIVING. See Driver. on the left hand side of the road, 302. across a railway track without looking, 315. ahead of street car, 316. behind a street car ascending a steep grade, 316. by the side of a street car, 323. at a rate of speed prohibited by statute or ordinance, 319, 359. over defective tracks, 392. over a bank of snow, 394, n. See Negligence, Carrier. DRIVING-BAR. See Contributory Negligence, Passenger. riding on, is negligence, 340. DRUNKENNESS. See Intoxication. 826 INDEX. References are to Sections. DUAL ROADS. See Street Railways. use of railway for freight and passengers, when unlawful, 8, 9. DUMMY ENGINE. failure to give warning of approach of, 300. See Negligence. BASEMENTS. See Stbeets, Abutting Owners, Elevated Railways, Electric Railways, Interubban Railways, Street Railways. of the abutter, the most important are the right to access, light and air, 81. may be taken as well as land, 91. may be impaired by operation of railway, 91. of abutter, impairment of, by elevated railway, 190. EDISON, THOMAS A. testimony of, as to danger from electric current, 132, n.; 133. EGRESS. See Easements, Streets, Abutting Owners, Damages. EJECTMENT. proper remedy when railway is unauthorized, 56, n. as a remedy for impairment of abutter's rights, 99. ELECTORS. See Consent of Electors. consent of, for street railway necessary in Nebraska, 2S, n. ELECTRIC COMPANIES. See Electric Railways, Telephones, Telegraphs. requiring wires of, to be laid underground, 220, n. p. 361. ELECTRICITY. See Motive Power, Electric Railways, Telephones, Telegraphs, Electric Light Companies, Electrolysis, Extension, Animals. systems of electric propulsion described, 66. the right to use, embraces the right to erect poles and wires, 67. may be adopted, although not mentioned in statute, 67, n. unauthorized use of, not a nuisance per se, 69, n. 62, p. 131. statutes authorizing the use of, as a motive power, 73. may be used by one company on the horse railway of another. 111, 125. injury to track caused by heavy motors, 125. appropriation of electric power, 119. at first considered very dangerous, 126. most common power in use, 126. average electric current is 550 volts, 132, n. testimony of Charles O. Kruger on this subject, 132, n. injuries to persons not passengers or travelers by electric shock, 132, n. doctrine of res ipsa loquitur does not apply to, 133, n. p. 241. INDEX. 827 References are to Sections. ELECTRICITY— Continued. right to recover for fires caused by defective electrical equipment, 134, n. liability for discharge of, on adjoining property, 135, n. p. 264. damaging mains by electrolysis, 135, n. p. 264. interference of the stronger with the weaker current, 135, n. p. 243. danger to human life, 83, 132. to animal life, 133, 292, n. 32, p. 470. voltage used on railways, 132. degree of care required in its use, 132, n.; 133, n. 25, p. 239. injuries caused by shock, 133, n. 25, p. 238; 361, n. 251; 460. ELECTRIC LIGHT COMPANIES. when the use of the street by, is an additional burden, 128. poles of, not within rule applicable to maintenance of attractive nuisances, 292, n. as to exemption from taxation, 269, n. ELECTRIC RAILWAYS. See Abutting Ownees, Inteeuebaw Railways, Street Railways, Motive Poweb, Electricity. not a new burden on the soil, 83. operating electric cars on horse railway. 111, 125. changes in tracks necessary for, 111. damages for interruption of business during, 111. Injury to track by heavy motors, 125. joint use of motive power, 119. appropriation of, 120. joint use of poles and other fixtures, 121. advantages of electricity as a motive power, 83, 126. of the right to use poles and wires, 127. poles and wires not an unlawful obstruction of the street, 127. when the overhead system cannot be adopted, 127, n. when abutters may object to electric propulsion, 127. poles and wires not a new servitude on the soil of the street, 127, n. analogies derived from telegraph and telephone lines, 128. authority to use electric power justifies adoption of the trolley system, 127, n. when grant to use wooden poles is binding on municipality, 127, n. p. 230. what is included in the grant to use electricity, 129. erecting poles in the middle of the street, 130. regulations requiring wires to be placed underground, 131. danger to human life, 83, 132. loss of human life very rare, 132. testimony of Thomas A. Edison, 132, n. p. 237. of George W. Mansfield, 132, n. p. 237. average electric current is 550 volts, 132, n. testimony of Charles O. Kruger on this subject, 132, n. 828 INDEX. References are to Sections. ELECTRIC RAllMAYS— Continued. usual voltage of the railway current, 132. danger to animal life from electric current, 133. testimony of Thomas A. Edison on this subject, 133. damages caused by fire, 134. interference with telephones, 135, and notes. railway-telephone litigation — preliminary statement of, 135. in the Ohio common pleas court, 135, n. p. 242. in the Chattanooga, Tennessee, chancery court, 135, n. p. 255. in the district court of Utah, 135, n. p. 261. in the circuit court of Wisconsin, 135, n. p. 259. in the superior court of Cincinnati, special term, 135, n. p. 246. in the supreme court of New York, on application for temporary » injunction, 135, n. p. 248. in the supreme court of New York, on appeal, 135, n. p. 249. in the court of appeals of New York, 135, n. p. 250. in the Knoxville, Tennessee, chancery court, 135, n. p. 257. in the federal circuit court for the middle district of Tennessee, 135, n. p. 258. before the railroad commissioners of New York, 135, n. p. 250. in the supreme court of New York, judgment on referee's report, 135, n. p. 251. in the superior court of Cincinnati, general term, 135, n. p. 247. in the supreme court of Ohio, 135, n. p. 247. in the supreme court of New York, at general term, 135, n. p. 253. in the city of Halle, Germany, 135, n. p. 263. injunction to prevent street railway from injuring telephone com- pany's service, 135, n. p. 265. electric railways and telephone companies now working in unison, 135, n. p. 263. when company liable for killing horse by a crossing of wires, 292, n. p. 470. injury of passenger by poles erected between parallel tracks, 292, n. p. 470. ELECTRIC SHOCK. Injuries caused by, 133, n. 25, p. 238; 361, n. 251; 460. ELECTROLYSIS. Injuring public or private property, 61, n. 28; 135, n. 32, p. 264. damages to mains by, 135, n. p. 264. ELEVATED CABLE ROADS. compensation for Injury caused by, 183. ELEVATED RAILWAYS. See Abutting Owners, Streets, Axtebnative Damages, Injtjnc- TioN, Parties, Delay. abutting owner in New York entitled to compensation, 89. INDEX. 829 References are to Sections. ELEVATED RAILWAYS— CowHwMeS. states having system of, 152. in European cities, 152. statutes of different states authorizing construction of, 152, n. New York and Philadelphia have systems combining subsurface with elevated railroads, 152. duty of commissioners of appraisal, 184. roads elevated at certain points only, 152. early history of New York system, 153. constitutional and statutory provisions for, 153. application to mayor or board of supervisors for appointment of com- missioners, 154. need not be verified by all the subscribers, 154. no notice of need be given to abutting owners, 154. duties of mayor's commissioners, 155. must fix routes and determine upon plans, 155. how far their decision is final, 155. must fix time for obtaining consent of property owners, 155. consent of property owners and local authorities, 156. these steps are essential to the validity of the franchise, 156. when to be obtained, 156. authority of partner to bind co-partnership, 156. consent of municipality is binding on the vendee of its real estate, 157. what conditions may be attached by the local authorities, 156. appointment of commissioners by supreme court, 157. on whose application it may be made, 157. not essential that property owners be notified, 157. hearing before supreme court commissioners, 158. the directions of the statute must be closely followed, 158. discretion as to the time and manner of the hearing, 158. commissioners may reject oral proof and require affidavits, 158. may adopt part of route and reject remainder, 158. may confine company to one method of construction, 158. confirmation of the report of the supreme court commissioners, 159. the report is inoperative until confirmed by the court, 159. extent of the power of the court to review, 159. what is essential to justify confirmation, 159. the order of confirmation cannot be attacked collaterally, 159. plans for construction, 160. sufficient If in substantial compliance with the statute, 160. matters of detail which may be omitted, 160. when plans may differ from the specifications of the charter, 160. instance where plans were held to be defective, 160, n. location of routes and buildings, 161. route fixed by mayor's commissioners cannot be changed, 161. but part of, may be rejected, 161. discretion of private corporation as to matters of detail, 161, 830 INDEX. Beferences are to Sections. ELEVATED RAILWAYS— Continued. In streets already occupied by elevated or underground railway, 161. when branches fail because of defect in location of main line, 161, n. when fixed by statute no other can be adopted, 161. stations and stair-ways cannot be located in side streets, 161. ticket office must be located within prescribed route, 161. otherwise an abutting owner may object, 161. failure to designate time for completing part of the routes, 161. character of the franchise obtained, 162. how the right to construct becomes indefeasible, 162. the subsequent condemnation of lands is merely an incident of construction, 162. the franchise is not defeated by devoting same land to other public use, 162. power of eminent domain, 163. its extent, 163. the right liberally construed, 163. lands may be acquired to effect a junction of routes, 163. the leasing of the road does not abrogate the proceedings, 164. when proceedings may be continued in th« name of the lessee, 163. constitutionality of the statute cannot be challenged in condem- nation proceedings, 163. when the statute of limitations does not run against the right to appropriate, 163. The Peoples' Rapid Transit Company, 164. its scheme to construct a two-story viaduct fifty feet wide and sixty feet high, through private property, 164. held not to be within the purview of existing legislation, 164. what property may be taken for, 165. condemnation proceedings may be confined to one part of the route, 165. cannot extend beyond limits fixed by ordinance, 164, n. 38. in Pennsylvania, railroad yards may be appropriated, 165. pleading and practice in condemnation proceedings, 166. the petition may be verified on information and belief, 166. the property must be definitely described, 166. the interest sought must be averred with certainty, 166. parties to condemnation proceedings, 167. all parties in interest must be brought in, 167. remainder-men and life tenants are necessary parties, 167. when omissions may be supplied by amendment, 167. effect of owner's death, 167. effect of failure to notify owners, 167. one condemnation proceeding may cover public and private rights, 168. what must be shown on the hearing of petition to condemn, 169. necessity for acquiring the property, 169. INDEX. 831 References are to Sections. ELEVATED RAIL.WAYS—Continued. the petitioner's intention to complete road, 169. its hona fide effort, and inability, to purcliase, 169, 170. evidence of inability to purchase, 170. proceedings to condemn commenced after occupation, 171. may be prosecuted although the road has been constructed, 171. even if the past use without compensation was a trespass, 171. a previous judgment for land owner for damages and injunction, no bar, 171. value of the easements is determined as of time of trial, 171. the petitioner must show express authority to condemn, 172. condemning property for illegal purposes, 172. only enough property may be taken to accomplish the public pur- poses contemplated, 172. when one of the purposes is illegal the proceedings must be dis- missed, 172. proceedings and practice before commissioners of appraisal, 173. commissioners not governed by technical rules of evidence, 173. when the award is not vitiated by the admission of incompetent evidence, 173. it may be shown that property is suitable for the particular purpose, 174. commissioners of appraisal acting on their own knowledge, 175. may disregard the testimony of witnesses as to damages, 175. and be governed by their view of the premises, 175. benefits considered in proceedings to condemn, 176. provision of the general railroad act, 176. when damages may be reduced by benefits, 176. measure of compensation and damages when the fee is in the abutter, 177. full value for land taken, 177. adequate compensation for injury to the remainder, 177. effect of conversion of street to railroad purposes may be con- sidered, 177. measure of compensation and damages when fee is in city, 177. determined by the difference in value with, and without, the appurtenant easements, 177. early rulings as to noise, smoke and similar annoyances, 177. noise and vibration are proper elements of damage, 177. there is no reason for excluding smoke, vibration, ashes, dust, and the unsightly character of the structure, 177. compensation for injury to a corner lot, 177. compensation to be allowed for injuries caused by running of trains, 177, n. stay of proceedings of commissioners of appraisal, 178. reason for not granting, 178. proceedings when amount of second award is less than first, 179. difference must be refunded with interest, 179. from what time interest shall be computed, 179. 832 INDEX. Befereuces are to Sections. ELEVATED RAlirVTAYS— Continued. confirmation of the award, 180. when it follows as a matter of course, 180. appeal from order confirming report, 181. must he taken to the general term, 181. is not reviewahle hy the court of appeals, 181. applying for a confirmation does not prevent company from tak- ing an appeal, 181. the report may be recommitted to the commissioners, 181. appeal from second appraisal, 182. expressly prohibited by statute, 182. petitioner may move to set aside the report, 182. on what grounds the motion may be sustained, 182. elevated cable roads, 183. elements of damage hy, to abutting owner, 183. forfeiture and abandonment of the franchise, 184. See PORFEITUEE. when a judicial determination of, is necessary, 184. the running of time may be suspended during the pendency of legal proceedings, 48, 184. or by the interference of the public authorities, 184. effect of the abandonment of the main line, 184. remedy by abutting owners, 184. not a legitimate use of public streets, 185. this is a question of law and not of fact, 185. in Illinois, are not an additional servitude, 185, n. p. 300. in Missouri, held to be an additional servitude, 185, n. p. 300. in Massachusetts by statute are an additional servitude, 185, n. p. 300. ownership of the fee in the street, 185, 187. immaterial in determining the rights of abutting owners, 185, 187. inconsistent with the established doctrine as to surface rail- ways, 187. damages to non-abutting property, 18G. where there is an intervening lot, 186. where the lot abuts on parallel streets with buildings fronting on both, 186. where a lot formerly consisted of two lots, 186. where total frontage not upon the street occupied by the railway, 186. an additional track is an additional burden, 188. remedies of abutting owners considered generally — separate successive actions at law, 189. injunction to prevent a multiplicity of actions at law, 189. in which the plaintiff may recover past damages, 189. and the court may fix the amount of total damages, 189. conditioned on the payment of which the court may refuse an injunction, 189. INDEX. 833 Beferences are to Sections. ELEVATED RAIIjWAYS— Continued. remedies of abutting owners considered generally — when conditional order for payment of permanent damages will not be inserted, 189. whether a corporation in possession may submit to an injunc- tion, is an open question, 189. when the owner may recover total damages in common law action, 189. full compensation may be awarded in proceedings to condemn, 189. a corporation abutter is entitled to compensation, 189. surface railway company cannot enjoin operation of elevated road above it, 189. elements of damage to which abutter is entitled — 190. theoretically every injury resulting from the structure and its use, 190. the impairment of the easements of light, air and access arising from the construction of the road, 190. the pollution of the air by smoke and gas emitted from locomo- tives, 190. cutting off light by shadows cast obliquely, 190. by station extending beyond affected property, 190. effect of extending awning from building to railroad structure, 190. injury to rear building unconnected with main building, 190. in actions for past damages allowance may be made for noise and vibration, 190. and for impairment of the easements of light, air and access, 190. distinction between actions for past damages and suits in equity, 190. criticism of, 190. elements of alternative damages, 190. invasion of the privacy of dwellings considered in actions at law, 190. but not in an award for damage to the fee, 190. damages for personal injuries to the abutting owner or occupant, 190. misconduct of defendant's employes, 190. possible injuries from negligent and unskillful operation, 190. evidence as to plaintiff's legal expenses, 190. counsel fees for arguing appeal, 190. remedy Vy injunction — the injunction nisi, 191. elements of damage which are not covered by, 191. in Illinois injunction will not issue, 191, n. p. 314. when an injunction may be refused, 191. discretion of trial court, 191. the prevention of a multiplicity of suits as a ground for, 191. must be plead, 191. 53 834 INDEX. References are to Sections. ELEVATED HAIhWAYS— Continued, remedy liy injunction — an assigned claim for past damages cannot be included in alter- native damages, 191. when a county cannot enjoin, 191. effect of total satisfaction of plaintiff's claim pendente lite, 191. of partial satisfaction, 191. the mere operation of the road may be enjoined, 191. an action for injunction and damages does not abate on plaintiff's death, 191. right of the plaintiff to use the whole street above the surface, 191. enjoining the passage of a proposed resolution, 191. parties to actions for damages and injunction, 192. all who have an interest should be joined as plaintiffs, 192. although it is not a co-extensive interest, 192. when heirs of a tenant in common should be made parties, 192. remainder-men are necessary parties, 192. the owner of an equitable interest is a necessary party, 192. when one member of firm may bind co-partners, 192, n. owner of land subject to a lease may bring injunction for dam- ages to the reversion, 192, n. joint action against the lessor and lessee, 192. provisions of the judgment in actions to enjoin, 193. proper form of judgment, 193. an alternative decree not a matter of right, 193. providing for the release of a mortgage, 193. the decree may forbid the running of trains, 193. effect of the omission of property from the operation of the de- cree, 193. measure oj damages to which abutter is entitled, 190. in actions for past injuries alone, 190. determination of the amount of alternative damages, 190. noise and the invasion of the privacy of dwellings, 190. total damages in actions at law, 190, 194. recoverable by remainder-men, lessors, lessees and subsequent pur- chasers, 191, 201, 202, 203, 204. damages as affected by benefits, 195. provision of the general railroad act, 195. provision of the Rapid Transit Act, 195. these acts construed, 195. test in Illinois as to whether land not taken is damaged, 195, n. p. 326. test in Maryland, 195, n. p. 326. change in the character of the neighborhood, 196. the general effect of road upon other property may be shown, 197. and upon the business and traffic in the streets, 197. exemplary and excessive damages, 197. when exemplary damages not allowed, 197. INDEX. 835 References are to Sections. ELEVATED RAIISWAYS—Oontinued. for delay of two years in instituting proceedings to condemn, 197. for taking appeals which are afterwards withdrawn, 197. relief afforded against excessive recoveries, 197. assignment of claim for damages, 198. recovery by the purchaser of a claim for past damages, 198. not allowed in an action for injunction and fee damage, 198. reservation by vendor of his claim for past damages, 198. for prospective damages, 198. interest on damages, 199. when total damages are allowed interest may be included, 199. it is error to charge that a jury must award interest, 199. cannot exceed the legal rate of six per cent., 199. in equitable actions, 199. other questions arising in actions for past and fee damages, 200, when plaintiff must prove his title, 200. misjoinder of causes of action, 200. claims for damages do not pass by judicial sale, 200. extra consumption of gas as an item of damage, 200. a corporation owner in occupancy cannot recover for loss of rental value, 200. rights and remedies of purchasers, 201. one who purchases from the city takes with knowledge of the grant, 201. a license from a former owner binds his vendee, 201. rights and remedies of remainder-men, 202. of lessor, 203. of lessee, 204. right to trial by jury, 205. limitations on the abutter's right of action, 206. the doctrine of acquiescence and estoppel applied to abutters, 206. previous offers inadmissible as evidence of value, 207. opinion evidence, 208. not admissible to show present value without the railroad, 208. is competent to show present value with the railroad, 208. not competent to explain the change in the character of tenants, 208. opinion of experts, 208, n. p. 343. numerous other questions of evidence stated and illustrated, 209. taxation of the road and fixtures, 210. injury to persons on the street by falling objects, 211. injuries caused by unguarded excavations in the street, 212. care required in the construction and management of the road, 213. burden of proof when passenger is injured by a collision, 213. care required in the construction and management of stair-ways, 311. stations and approaches to stations, 214. regulation as to gates on car platforms, 215, 836 INDEX. Beferences are to Section^. ELEVATED RAlLiWAYS— Continued. pasengers entering or leaving train while in motion, 216. riding on the platform, 216. standing in the car, 216. preparing to leave the car while it is in motion, 216. stopping car with sudden jerk, 216. removal of passengers from stations or cars, 217. liability for false Imprisonment of passengers, 217. for Injury to persons on or near track, 218. when the lessor is not liable for the lessee's negligence, 219. EMBANKMENT. omission to erect barriers on, to protect trespassers, 290. EMBEZZLEMENT. as a defense to action for wages, 417. EMINENT DOMAIN. See Street Railways, Elevated Railways, Appropeiation, Intek- UBBAN Railways. corporation may be compelled to exercise power of, 99. the power of, may be exercised to acquire right of way, 103. power of, can be exercised only for a public use, 103. upon whom the power may be conferred, 103. there can be no implication In favor of the right, 103. conditions precedent to the exercise of the right, 105. may be exercised without first obtaining consent of local authorities, 105. appropriation proceedings and practice, 106. measure of damages, 107. diverting business from street as an element of, 107, n. when market value need not be the basis of, 107, n. not affected by benefits to lands not taken, 107. power of, to acquire right of way for elevated railways, 163. what property may be taken for, 165. pleading and practice in condemnation proceedings in New York, 166. parties to proceedings, 167. whit must be shown on the hearing, 169. how inability to purchase may be shown, 170. proceedings commenced after occupation, 171. condemning property for Illegal purpose, 172. proceedings and practice before commissioners of appraisal, 17S. the commissioners may act on their own knowledge, 175. must consider benefits, 176. power conferred on interurban railway companies, 446. EMPT.OYBRS' LIABILITY LAWS. See Interurban Kailwats. application of such statutes to Interurban railway companlas, 4T1. INDEX. 837 References are to Sections. ENCUMBRANCE. See Property, Mortgage, Lien. ENGINE, LOCOMOTIVE. See Elevated Railways, Abutting Owners. use of, on street railways, 85, 86, 87. dummy used to propel street cars, 86, n. p. 156. Baldwin motors used for that purpose, 87, n. p. 157. Porter's noiseless motor used for that purpose, 87, n. p. 159. liability of master to servant for injuries caused by defect in, 413. ENGINEER. failure of, to ring bell, 300, 301. continuing in service on a defective engine, 413. ENGLAND. tramway cannot be constructed without consent of local authoritr = . 28, n. rule in, as to imputing negligence of carrier to passenger, 362. by-law of tramway company, as to giving up ticket, 364. ENTERING CARS WHILE IN MOTION. on elevated roads, when not per se negligence, 216. on surface roads, 336, 345. on interurban cars, 464. See Passengers, Contributory Negligence. EQUIPMENT. See Tracks, Construction and Equipment. change of, may be authorized by special act, 55, n. changes in, as affecting right to compensation for joint use of tracks, 125. character and condition of cars and, 296. EQUITY. See Remedies, Forfeiture, Injunction, Abutting Owners, Ele- vated Railways, Remedies. ERROR OP JUDGMENT. as affecting the question of contributory negligence, 316, 321. ESTOPPEL. See Elevated Railways. as affecting power to alter or amend, 40, n. 27. when large expenditures with consent of public authorities does not constitute, 69, n. 59, p. 130. in bringing suit, 206, n. 243, p. 339. EVIDENCE. See Elevated Railways, Damages, Measure of Damages, Pre- sumptions, Eminent Domain, Ordinances, Speed. opinion evidence as to the value of property, 208. for what purposes not admissible, 208, 209. 838 INDEX. References are to Sections. EVIDENCE — Continued. to prove that the track was in a safe condition at the time of an accident, 292, n. p. 471. rate of speed, 319. presumptions arising from injury to passenger, 332, 361. against passenger who rides on foot-hoard when there is room inside the car, 341. violation of ordinance not competent to prove omission of common law duty, 353. no presumption of negligence arises against the carrier from the presence of a basket on the floor of the car, 358, n. exceeding lawful rate of speed as evidence of negligence, 359. burden of proof as to contributory negligence, 381. presumptions of law as to the capacity of children, 385. presumptions arising from the presence of young child "upon the street, 387. arising from fire, 361, n. 251. the condition and circumstances of parents may be proved to reflect upon the question of their contributory negligence, 383. intoxication as evidence of negligence, 395. exclamations of pain, when competent evidence, 397. declarations of injured person, when competent evidence, 398. declarations of defendant's servants, when competent against the master, 399. conduct of defendant's servants, not evidence against the master, 399. declarations of third persons, not competent evidence, 400. evidence of other accidents at the same place is competent, 400, 401. evidence of precautions adopted after the accident is not competent, 402. opinion evidence, competent to show the time and distance within which vehicles may be stopped, 403. not competent to prove that appliance on a street car was safe, 403. variance between pleading and proof, 404. physical inspection, examination and tests, 407. when federal circuit court will order a physical examination, 407, n. when the outcries of by-standers and others are competent, 383, n. p. 624. commissioners untrammeled by technical rules, 106, n. 78. privileged communications, 399. EXCAVATIONS IN THE STREETS. liability of railway company for injuries caused by, 212, 290, 331, 394. See Street Paving and Repairs. EXCESSIVE DAMAGES. See Damages, Elevated Railways. EXCLAMATIONS. See Pain, Evidence. INDEX. 839 References are to Sections. EXCLUSIVE GRANTS. See Joint Use of Teacks. are not favored, 108. municipal authorities cannot make, without explicit legislative sanc- tion, 108. when city council cannot abrogate its power to make additional grants, 108. the utility of streets for public travel cannot be impaired, 108. railways may be located in parallel streets, 108. interference with horse cars by cable railway, 109, n. franchise not impaired by one surface railway crossing another, 109, n. grant to second com.pany of first company's right of way, 109, n. use of same street by two companies, 109, n. the right of one railway company to use the track of another, 110. coach companies using railway tracks, 112. EXEMPLARY DAMAGES. See Damages, Wilful Acts, Common Cabkiebs, Private COEPOBATIONS. EXEMPTION FROM TAXATION. not presumed, 269. See Taxation. EXPENSE. of operation, no excuse for non-performance, 51, n. 67, pp. 97, 98. of construction, 56. EXPIRATION OF FRANCHISE. See Peanchise. when not affected by amendment of statute or ordinance, 43. additional burdens imposed on renewal, 43. EXPRESS POWERS. See Municipal Coepoeations. ordinances passed in pursuance of, 223. EXPULSION OP PASSENGERS. See Passengees, Conductoe. EXTENSION OF ORIGINAL LINES, definition of, 63. the company may be given an option as to the route, 61, n. extension not a new route, 62, n. where consent of abutting owners necessary for, 63. consent of owners of property abutting on original lines not neces- sary, 63. when owner of coincident route cannot object, 63. where extension causes interruption to original road during con- struction, 63, n. when consent of local authorities not essential, 63. in Ohio, concurrence of stockholders not essential, 63. |)ublic notice and competitive bidding not essential, 63, n. 840 INDEX. References are to Sections. EXTENSION OF ORIGINAL 'LIN'ES— Continued. when grant of, not interfered with by courts, 63. grant of the right, not a special act conferring corporate powers, 63. extension longer than original line, 63, n. what extension may include, 63, n. business interrupted during construction of, 63, n. over the route of another company, 63, 63, n. when extension must be constructed, 63, n. of horse railway with power to use electricity, 69, n. 59, p. 130. duty to pave in case of, -252. EXTRA HOURS. extra pay for, 420. permitting servant to work, as a ground for forfeiting the franchise, 420. FACT. question of. See Law and Fact. FACTORY. siding to reach, an additional burden, 8, n. FALSE ARREST. liability of carrier's servants for, 373. FALSE IMPRISONMENT. liability of private corporation for, 217. FARES. change of rate by ordinance, 40, n. 25. reduction of, as a consideration for release from duty to pave, 41, n. increase of, in consideration of changing motive power, 41, n. no competition as to, required for renewal of franchise, 43. regulation of, 232, 233, 237. school children, policemen and firemen, 233, n. 51, pp. 383, 384. burden of proof as to unreasonableness of fare, 233. limitations of the power to regulate, 233. refusal to pay, justifies expulsion, 369. what constitutes a legal tender of, 364. correction of mistake in case of excessive payment of, 364. failing to ring up, 417. See Tickets, Teansfeks. PEAR. See Fbiqht. FEDERAL COURTS. hold that white and colored passengers may be separated, 325. hold the burden of proof as to contributory negligence to be on the defendant, 381. when physical examination of plaintiff will be ordered by, 407, n. INDEX. 841 References are to Sections. FEE. ownerstiip of, in the streets as affecting abutter's remedy, 81. material to his rights in New York, 89. does not determine the abutter's rights, 187. FELLOW SERVANT. See Master and Seevant. who are fellow servants, 412. grip-man of cable cars and watchman at curve are fellow servants, 412. knowledge of company that fellow servant was incompetent, 412. FENCES. right of interurban company to remove, 453. duty of interurban company to maintain, 459. FENDER. See Gate, Guabd, Sleigh. FERRY COMPANIES. regulating fares of, 220, n. p. 361. FIGHTING. among passengers, when carrier responsible for, 374. FIRE. danger of, from electric current, 134. danger of, from crossing of wires, an element of damages to abutter, 134. fires caused by defective electrical equipment, 134, n. danger of, from operation of elevated railroad, 190. presumptions arising from, 361, n. 251. FIREMEN. See Fakes. risks which they may take in the discharge of their duties, 318. driving over defective tracks in response to a call, 318, 292, n. 30, p. 468. when negligence of one cannot be imputed to another, 393, n. p. 643. FIXTURES. See Poles and Wires. joint use of poles and other fixtures, 121. compensation for joint use of, 121. FLAG-MAN. run over by street car at railroad crossing, 313. See Grade Crossings. FLAGGING SYSTEM. See Interurban Railways. of interurban railways, 469. FLORIDA. franchise valid in, without consent of local authorities, 3, n. p. 6. ordinance providing for separation of white and colored passengers, 325. 842 INDEX. Keferences are to Sections. FOOT-BOARD. See CoNTBiBUTORY Negligence. riding on, is not per se negligence, 341. FORCE. See Remedies. cannot be substituted for judicial declaration of forfeiture, 49, n. tracks cannot be destroyed because not properly laid, 59, n. FORCIBLE ENTRY AND DETAINER, when a proper remedy for abutter, 99. FORFEITURE. See Fkanchise, Charter, Interubban Railways. power of local authorities to impose conditions of, 30. as a ground for refusing to appoint commissioners of appraisal in New York, 44. not favored by courts, 44. how enforced, 44. declaration of, by legislature is a nullity, 44. general principles governing, 45, 45, n. when charter rights may be lost without intervention of courts, 45. unauthorized carrying of freight not a ground of,' 45, n. causes of, may be declared by statute, 46. statutory provisions as to commencement or completion of work, 47, n. conditional limitations, 47. conditions subsequent, 47. grounds of — failure to construct railway within prescribed time, 44, 45, n.; 46, 47, 48, n. effect of delay caused by public authorities, 46. effect of delay caused by legal proceedings, 48. substantial compliance sufficient, 48. diligence required to obtain abutters' consents, 48. how time computed, 48. failure to operate during strike, 45, n. failure to operate nonpaying lines, 65. permitting employes to work beyond statutory limit, 45, n.; 420. failure to expend given percentage of capital within time pre- scribed, 47. leasing to another company not sufficient, 47, n. mis-user, 52. non-user, 51. abandonment of franchise, 46, n.; 51. effect of public consent to partial abandonment, 47, n. of partial compliance, 51. injunction, 51. permitting passenger railway to be used for freight pur- poses, 51. length of time as evidence of abaiidonment, 51, 51, n, INDEX. 843 References are to Sections. FORFEITURE— Cowiinttef?. the right of, how and by whom enforced, 49. must be by direct proceeding against the corporation, 49. the mode prescribed by statute must be strictly followed, 49. may be enforced at suit of the state or of the municipal corpora- tion, 49. quo warranto the appropriate remedy, 51. competitor not permitted to take advantage of failure to construct within prescribed time, 49, n. waiver of — who may waive, and how waiver may be expressed, 50. the right to enforce implies the right to waive, 50. may be waived by the state or by the local authorities, 50, 439. a remission of is not a waiver, 50. may be implied from subsequent legislation, 50. private individual cannot set up, before the state intervenes, 50, n. ; 439. the right to enforce exists at common law, 52. a slight failure not an adequate cause of, 52. running one car a day as evidence of, 52, n. may be enforced for wanton disregard of public regulations, 52. when removal of tracks without judicial determination may be en- Joined, 49. of franchise for elevated railroad, 184. FRANCHISE. See Chaetee, Street Railwats, Inteeubban Railwats, Elevated Railways, Foefeituee, Moetgage, Sale, Lien, Taxation, Peepetuitt. illegal transfer of, 11. can be granted only for public use, 8. abuse of by transporting freight, 8. not a mere license, 5. its source and legal character, 6. is the thing granted, 6; distinguished from charter, 6. definition of, 6. has the legal character of an estate or property, 6. must emanate from sovereign power, 6, 3. when it cannot be withdrawn, 6. generally is not exclusive, 6. grailt of, is in derogation of public right, 6. See Exclusive Gbants. distinguished from right of way, 6. what property subject to street railway franchise, 7. of street railway may be appropriated, 7. public parks cannot be taken for right of way, 7. streets may be with public consent, 7. when they cannot, 7. ' 844 INDEX. References are to Sections. FRANCHISE — Continued. cannot be granted by municipality to construct over private prop- erty, 7. power of commissioners to grant franchise on highviray running ttirough parls, 7, n. when may be granted without consent of local authorities, 3. when cannot be enjoined by municipality, 3. when municipality not entitled to compensation for, 3. power to grant, not affected by condition of streets, 14, n. power of municipal corporations to grant the franchise, 14. in Ohio, must be granted to best bidder, 15, n. power to grant perpetual and exclusive, 17. See Exclusive Grants. how accepted, 31. acceptance of, when binding, 31. cannot be accepted by receiver, 31, n. conditions affecting, how proved, 32. how affected by amendment of city charter, 35. power of legislature to amend or withdraw, 36. limitations on this power, 36, 37. power of legislature to suspend or revoke, 39. how this power may be reserved, 39. power of municipal authorities to modify or withdraw, 40. modification of by agreement, 41. power to withdraw, Includes power to modify, 39, n. temporary Interference with, during public improvements, 42. expiration, renewal and extension of, 43. upon a renewal, new conditions may be imposed, 43. by agreement, may be renewed before its expiration, 43. existence of, cannot be questioned in collateral proceeding, 44, 44, n. exception to this rule, 44. usurpation of, is a matter between the state and the company, 59. how and by whom forfeiture of, enforced, 49. by whom and how waived, 50. misuser of, 52. void if route not previously established, 55. appropriation of, under power of eminent domain, 118. character of, for elevated railways in New York, 162. forfeiture of, of elevated railroad, 184. taxable as real estate in New York, 271, n. is property and subject to taxation, 273. whether regarded as personalty or realty depends upon statutes of different states, 273. method of determining value of, 273. taxation of, 273. of street railway, cannot pass by voluntary sale without legislative sanction, 422. a prerogative franchise cannot be mortgaged, 423. INDEX. 845 References are to Sections. FRANCHISE — Continued. but the right to build and use a railway may be mortgaged, 423. the power to lease, 424. See TiF.ABE. rfghts and liabilities of the lessor and lessee of, 425, 426. judicial sale of, 427. See Sale. merger of, in case of consolidation, 429. See Consolidation. FREE PASSAGE. See Street. FREE PASSENGERS. See Passengebs, Teespassebs, Childben, Fabes. FREIGHT. See Steeet Railways, Packages, Baskets, Goods, Interubban Railways. use of street railway as freight road unlawful, 11, n.; 8. when use of railway for. Is a mis-user of the franchise, Bl. many Interurban railways carry freight, 431. right of interurban company to carry, cannot be questioned In action for pergonal Injuries, 439. interurban companies as carriers of. 468. regulation of freight rates by commission, 468, n. FRIGHT. See Contbibutoey Negligence, Damages. not alone a cause of action or an element of damages, 408. but defendant may be liable for sickness caused by, 408. FRIGHTENING HORSES. It is not negligence to sound gong or ring bell near timid horses, 2S7, 298. even when they appear to be frightened, 297, 298. horse taking fright at the appearance of an approaching car, 298. runaway horses, 322. FRONT PLATFORM. See Passengees, Contbibutoey Negligence, Intebubban Railways. statutory regulations as to gates on, 215. alighting from, in violation of the statute, 227. riding on, 338. climbing over guard or gate of, 343. permitting passengers to ride on, 351. permitting passengers to leave by, 352. regulations concerning the use of, 356, 357. GATE, OP PLATFORM, failure to provide, 833. climbing over gate, guard, or fender of, 348. 846 index; References are to Sections. GAUGE OF TRACKS. See Tracks. when the company may adopt any suitable gauge in general use, 70. when the gauge may be changed, 70, 93. GEORGIA. statute of, requires consent of local authorities, 28, n. statute of, as to running street cars on Sunday, 74. statute of, as to street paving and repairs, 242, n. p. 405. by statute, requires the separation of white and colored passengers, 325. rule in, as to degree of care required of carrier, 328. the doctrine of comparative negligence in, 379. the burden of proof in, as to contributory negligence is on the plaint- iff, 381. constitution of, as to purchase of stock by corporations, 429. word "railroad" used in Georgia statute of 1856 includes street rail- ways, 471. GERMANY. railway-telephone litigation in, 135, n. p. 263. GLANDERS. power of state to eradicate, 221, n. GONG OR BELL. See Feightening Hoeses. not negligence to sound at crossing or elsewhere, 297. even in proximity to restive or nervous horses, 297, 298. may be negligence not to give warning by, 297, 300. GOODS. See Freight, Packages, Baskets. street railways as carriers of, 324. liability for safe keeping of articles left in car, 326. GRADE. See Tracks, Abutting Ownees, Railroad Crossings. when injunction will not be granted, 71, n. company may be compelled to change from time to time, 71. abutting owners entitled to damages for change of, 92. GRADE CROSSINGS. See Inteeueban Railways. rights, obligations and expenses, 114, n. 13, p. 208. expense of derailing switch, 114, n. 13, p. 208. expense of safety gates, 114, n. 13, p. 208. flagmen may be required, 220, n. 6, p. 359; 301, n. 70, p. 482. movement of cars regulated, 229. failure to maintain watchmen, 301. degree of care required of flagman, 301, INDEX. 847 Beferences are to Sections. GRAIN ELEVATOR. siding to reach an additional burden, 8, n. enjoined at suit of abutting owner, 8, n. GRANT. duration of, 17. See Charter, Franchise, Expiration, Renewal, Ordinance, Statute. GRIP-MAN. duty of, to keep a lookout abead, 306. when a fellow-servant of watchman, 412. GRIPS. See Cars and Their Appliances, Negligence. GROSS NEGLIGENCE. See Negligence. to allow a child of ten years to ride on the step, 351. to omit to employ flagman, 301. GUARD. See Gate, Front Platform. GUARD WIRES. See Poles and Wires, Wires. not negligence to fail to have, 133, n. mandamus to compel company to locate, 239, n. GUARDIAN. See Parent and Child, Imputed Contributory Negligence. HALLE, GERMANY. railway-telephone litigation in, 135, n. p. 263. HAND. passenger's, outside of car window, 344, 466. HEAD. passenger's, outside of car window, 344. HEAD-LIGHTS. when they must be used after dark, 299. HEARING. one whose hearing is impaired must, for that reason, be more cautious, 386. HEARSAY. See Evidence. when testimony is mere hearsay, 400. HIGHWAY. See Street. liability for unauthorized use of, 444. HORSE. See Glanders, Cruelty to Animals, Frightening Horses. power of state to kill, when diseased, 221, n. of street railway company, when taxable, 272. when master liable to hostler injured by vicious animal, 414. 848 iin>xz. References are to Sections. HORSE-CARS. See Caes, Steeet Railways, Abtjttinq Ownebs. HORSE-RAILWAY. See Steeet Railway. HOSTLER. See Masteb and Seevant. HOUSE. otstruction of street railway tracks by moving of, 453. HUSBAND AND WIFE. the negligence of a husband cannot be imputed to his wife, 392. the rule in California, 392, n. p. 641. ICE. See Negligence, Teacks, Caes. remedy of abutter for unlawful disposition of, 98. failure to remove from track, 293. on platform, 340. IDAHO. the burden or proof in, as to contributory negligence is on the de- fendant, 381. IDENTIFICATION. See Peincipal and Agent. of passenger ajid carrier, 362. of parent and child, 389. IDIOT. contributory negligence of, 386. ILLEGAL ACT. See CoNTBiBUTOEY Negligence, Nuisance. operating railway on Sunday, 74. working in street without license, 314. traveling on Sunday, 416. ILLINOIS. constitution of, requires consent of local authorities, 28, n. statute of, requires consent of local authorities, 28, n. statute of, requires consent of abutting owners, 28, n. municipalities in, authorized to prohibit use of steam as a motive power, 68. telegraph held to be an additional burden on the soil, 128. same ruling made as to the telephone, 128. statute of, as to elevated railroads, 152, n. elevated railway not an additional servitude, 185, n. 95, p. 300. abutter's remedy, 191, n. 140. damages as affected by benefits in, test, 195, n. p. 326. In, injunction will not issue for unwarranted use of streets, 191, n. p. 314. INDEX. 849 References are to Sections. ILLINOI S — Continued. method of determining value of the franchise in, 273, n. when tracks not assessable for costs of street paving, 277. tracks are assessable for cost of widening street, 277. rule in, as to pedestrians crossing track without looking or listening, 312. rule in, as to driving across tracks without looking and listening, 315, n. rule in, as to degree of care required of carrier, 328. the doctrine of comparative negligence in, 379. the burden of proof in, as to contributory negligence is on the plain- tlfE, 381. exclusion of woman from car on account of color, 325. has repudiated the rule imputing to children the negligence of their parents, 389. in, company, owning tracks responsible for negligent operation of road by lessee, 425, n. IMBECILE. contributory negligence of, 386. IMMINENT PERIL. adopting dangerous alternative while attempting to escape from, 383. IMPLIED POWERS. of municipal corporations, 224. See PowEKS. IMPUTED CONTRIBUTORY NEGLIGENCE. See Negligence, Contkibutgey Negligence, Pabent and Child, Childken. the contributory negligence of the carrier is not Imputed to Its pas- sengers, 362. imputing negligence of parents to their children, 389, 390. of guardian or other custodian to children in their charge, 389. of parent or other custodian to personal representative of infant, 391. of husband to wife, 392. of driver of private vehicle to his fellow passengers, 393. as between members of fire department, 393, n. p. 643. IN. meaning of, in designating route, 34, n. INDECENT LANGUAGE. use of, by passenger justifies his expulsion, 369. INDEPENDENT CONTRACTOR. when railway company liable for negligence of, 394. servants of, are not employees of company, 411, n. when railway company liable for negligence of workmen, 411, n. 54 850 INDEX. Kefereuces are to Sections. INDIANA. statute of, requires consent of local authorities, 28, n. by statute, permits Joint use of tracks by agreement, 115, n. rule in, that pedestrians must look and listen before crossing tracks, 312. rule in, as to driving across tracks without looking and listening, 315, n. rule of, as to degree of care required of carrier, 328. the burden of proof in, as to contributory negligence is on defendant, 381. permits the negligence of parents to be imputed to their children, 389. interference with electric current used for electric signals, 454. legislature may impose conditions limiting right of interurban com- panies to enter into traffic agreements, 474. INDICTMENT. See Remedies. is an appropriate remedy for unlawfully obstructing highway, 44. for departure from authorized route, 56, n.; 57. for permitting rails to remain above the street level, 59, n. for failure to repair streets, 260. INFANTS. See Children, Imputed Conteibutoey Negligence, Paeent and Child. INFIRM PERSONS. See Intoxication, Conteibutoey Negligence. vigilance and caution required to avoid injuring, 310. care to be exercised by, 312, n. 179, p. 511; 366, 337, 386, duty towards, 349. INGRESS. See Streets, Easements, Abutting Ownees, Damaoes. INJUNCTION. See CouETS, Remedies, Abutting Owners, Elevated Railway*. Interueban Railways. when city cannot enjoin the use of its streets, 3. attempted withdrawal of franchise, when enjoined, 5, 40. not the proper remedy to challenge corporate existence, 10. will not issue, to prevent repeal of ordinance, 40, n. may issue, to prevent cutting wires, 42, n. to prevent threatened act in name of dead corporation, 44. to prevent construction of road without consent of abutters, 24. by whom suit may be maintained, 24. right to, may be lost by acquiescence or laches, 24. to prevent unlawful destruction or removal of tr^^pks, 49. to prevent interference with relaying of tracks unlawfully torn up, 49. as an excuse for failure to construct railway, 51. will not lie to prevent removal of tracks not laid in conformity to ordinance, 58, n. INDEX. 851 References are to Sections. INJVNGTION— Continued by stockholders to prevent operation, of railway on Sunday, 74, n. as a remedy for impairment of abutter's rights, 99. to prevent piles of ice and snow being left in front of property, 98. an efficient remedy to protect abutter's rights, 100. joinder of parties plaintiff in proceedings for, 101. effect of appeal from order dissolving, 101, n. 53, p. 185. cases holding injunction to be appropriate remedy to protect abutter's rights, 100, n. pp. 182, 183. cases in which relief was denied, but remedy not questioned, 100, n. p. 183. cases in which injunction was denied, there being an adequate remedy at law, 100, n. p. 184. when the erection of poles should not be restrained, 100, n. counsel fees not recoverable in a suit on injunction bond, 100, n. p. 184. to prevent laying of street railway across steam railroad until condi- tions are fixed, 109, n. to prevent interference with telephone current, 135 and notes, as a remedy for impairing easements by elevated railway, 191. allowance of alternative damages, 191. parties to actions for, 192. provisions of the judgment, 193. by board of public works to prevent the erection of poles between tracks, 292, n. p. 470. by stockholder to prevent consolidation until his rights are secured, 429. INSANE PERSON. See Lunatics. INSOLVENCY. not a defense to an action for forfeiture, 45, n. 48. INSPECTION. of cars and their appliances, 332. INTEREST. on damages, 199. INTERSTATE COMMERCE LAW. See INTEEURBAN RAILWAYS. applies to interurban railways, 476. INTERURBAN RAILWAYS. See Street Railways, Abutting Owners, Consents of Abutting Owners, Franchise, Charter, Forfeiture, Eminent Domain, Negligence, Passengers, Freight, Joint Use of Tracks, Master and Servant, Taxation, Ordinances, Injunction. storage electrical system used on, 66. third rail system on, 66. defined, 430. are development of electric street railways, 430. are operated on highway and on private right of way, 430. 852 INDEX. References are to Sections. INTERURBAN RAILWAYS— aontinwed distinguished from street railways and commercial railroads^— are of a hybrid character, 431. partake of the nature of street railways and commercial railroads, 431. are becoming more like commercial railroads, 431. carry express and light and heavy freight, 431. in parts of west sleeping cars are being operated on, 431. usually exercise powers not enjoyed by street railways, 431. while operated in municipality regulations as to street railways govern, 431. outside of municipality rules as to steam railroads govern, 431. distinction between suburban railway and interurban railway, 431. how character of road is determined, 431, n. statutory classification of — whether statutes relating to street railways or commercial rail- roads govern, 432, 432, n. what statutes control, 432. In some jurlsdletionB special statutes have been enacted, 432. incorporation of — no special statutes authorizing incorporation of, until recently, 433. under what statutes Interurban railways should be Incorporated, 433. where there Is no statute relating to, in many states are Incor- porated under commercial railway law, 433. In some states are Incorporated as street railways, 433. In a number of states special statutes provide for incorporation of. 433. consent of public authorities — in country districts required, 434. legislature may limit power of local authorities to regulate use of its streets, 434. consent by board of highway commissioners in New York, 435. In Pennsylvania, when railway extends through several munici- palities, consent of all must be obtained, 435. consent of board of commissioners to operation of railway over a state road, 435. consent of municipality does not authorize use of its streets for Interurban railway business, 435. right of company operating in city to extend its lines into the country, 435. construction of railway from city into a county — election of routs, 435. requirements as to consents, 435, n. INDEX. 853 Eeferences are to Sections. INTBRURBAN B.Alt.W AYS— Continued. conditions attached ij/ public authorities — reasonable conditions may be prescribed by municipal authori- ties, 436. conditions are binding and will be enforced by the courts, 436. what are reasonable and valid conditions, 436, 437. issuance of transfers, 437. consents of abutting owners — are not property rights which can be appropriated under power of eminent domain, 438. may be given for a valuable consideration, 438. where line is constructed partly within municipality and partly without, 438. forfeiture — collateral attach — ■ when not declared, 439. failure to perform certain of the conditions, 439. where unforeseen circumstances arise, 439. waiver of, by local authorities, 439. right of interurban company to carry freight cannot be ques- tioned in action for personal injuries, 439. additional servitude — • great conflict of authority as to whether interurban is or is not, 440. generally accepted test, 440. resemblance of interurban to commercial railroad, 440. commercial railroad is an additional servitude, 440, and note 57. interurban railway operated over highways in country is, 441. where line Is extended simply to suburbs It is not, 441. its resemblance to a street railway or commercial railroad deter- mines whether it is, 441. character of motive power is not a test, 441. compensation to abutting oivners for use of highivay — See Abctttinq Owners. where interurban railway is an additional burden, damages are allowed, 442. measure of damages, 442, and note 69. if railway operated unlawfully, special damages may be awarded, 442, 443. operation of passenger and freight cars 60 feet in length, 442, n. 70. damages for special injuries — interference with egress and ingress — liability for interference with access to property, 443, 449. liability for change of grade, 443. right to remove shade trees, 443. liability to public authorities for unauthorized use of highway, 444. 854 INDEX. References are to Sections. INTERURBAN RAILWAYS— Continuea. injunction — when granted, 445. when not granted, 445, n. when commercial railroad not entitled to, 445. when abutting owner can en.loin a change of grade, 445. turnpike company may enjoin unauthorized use of its roadbed, 445. service of process, 445, n. 80. eminent domain — street railways not usually given right of, 446. right of interurban company to condemn private property, 446. statutes granting power of, must be strictly construed, 446. private property can be condemned only for public use, 446. not usually authorized to condemn property within limits of municipality, 446. may construct road upon street the fee of which is in abutting owners, 446. may acquire a right of way over a turnpike, 446. or across tracks of a steam railroad, or street railway or rival interurban railway, 446. compensation for property condemned — before property can be taken damages must be paid, 447. when right to damages accrues, 447. damages must be recovered in one proceeding, 447. how measure of damages is computed, 447. when right to damages remains in grantor, 447. where land has been condemned and afterwards abandoned, 447. acquisition of property by purchase — breach of conditions — power to acquire real estate by purchase, 448. interpretation of agreement of sale, 448. when action of ejectment may be maintained, 448. intent to create a condition whereby estate may be forfeited must be clear, 448. turnpikes — construction and operation on — consent to operate road must be obtained, 449. conditions of consent must be complied with, 449. when consent of highway commissioners must be obtained, 449. right of company is not exclusive, 449. grade crossings — right to cross tracks of commercial railroad or street railway, 450. when interurban road is not upon a public highway, 450. manner of crossing in some states prescribed by statute, 450. in some states, statutes providing for crossing of one commercial railroad by another apply to interurban railways, 450. consent to cross tracks of steam railroad, where railway passes through several municipalities, 450. INDEX. 855 References are to Sections. INTERURBAN UAUSWAYB— Continued, regulation by statute and ordinance — municipal authorities may malce reasonable regulations for safety of public, 451. interurban cars may by ordinance be required to stop at all street comers, 451. when such an ordinance has been held to be unreasonable, 451. interurban railway may by ordinance be required to light street crossings, 451. municipality cannot prescribe by ordinance qualifications of motor- men and conductors, 451. legislature may require interlocking devices at railroad crossings, 451. may be required to provide separate accommodations for colored passengers, 451. taxation — street railway operating wholly within municipality subject to local taxation, 452. state reserves right to tax commercial railroads, 452. in Iowa, Interpretation of statute as to taxation, 452. method of levying tax, under Massachusetts statute, 452. obstructions in right of way — when moving of house across railway will be restrained, 453. right to remove fence, 453. right to remove shade trees, 453. interfering electric currents — interference with electric current of commercial railroad used for electric signals, 454. negligence — laws governing operation of interurban cars in city, 455. laws governing operation of interurban cars in country, 456. degree of care required in crossing tracks — conflict of decisions as to failure to look and listen, 456. what laws govern interurban railways, 456. travelers crossing track laid on company's own right of way must exercise high degree of care, 456. failure of motorman to signal does not relieve traveler from look- ing, 456. where traveler proceeds on signal from flag-man, 456. travelers on tracks — relative rights and duties — public have right to use interurban tracks laid upon highway, 457. public and company must exercise reasonable degree of care, 457. not negligence per se to walk o1r drive along or near interurban track, 457. occupation of most dangerous part of the street by traveler, 457. degree of care required where tracks are laid on private right of way, 457. 856 INDEX. References are to Sections. INTERURBAN RAILWAYS— Continued,. travelers on tracks — relative rights and duties — degree of care required of motorman. running car on enclosed right of way, 457, 458, n. care to be exercised by motorman in approaching a private crossing, 457. assumption of risk — last clear chance doctrine— attempting to cross in front of rapidly approaching car In city, 458. higher degree of care to be exercised in crossing In front of car in country, 458, and note 148. last clear chance doctrine, 458. animals on track — duty to fence — duty to fence and provide cattle guards, 459. failure to maintain fences not negligence per se, 459. motorman should exercise care in operating cars through farming districts, 459. not contributory negligence to permit stock to run at large, 459. when right of way has been fenced and cattle stray through gate, 459, injuries from electric shock — third rail — presumption of negligence arises when person receives shock by coming in contact with rail, 460. where ejected passenger came in contact with unprotected third rail, 460, and note 157. member of railway gang injured in removing snow with iron scoop, 460. parks — • duty to maintain safe premises at parks, 461. death caused by falling of supports at balloon ascension, 461. railway company not liable for negligence of lessee of a switch- back proprietor, 461. degree of care required of carrier — res ipsa loquitur — presumption of negligence arises from derailment of car, 462. no presumption of negligence arises where interurban car collides with street car at crossing, 462. presumption of negligence arises where person receives shock from stepping on third rail, 462, n. duty of carrier to provide safe place to alight — must provide safe place to alight, 463. duty to give passengers opportunity to alight applies to car oper- ating outside city limits, 464. If place is unsafe warning must be given, 463. not required to provide platforms at highway crossings, 463, and note 166. stopping car at unsafe place, 463. INDEX. 857 References are to Sections. INTERURBAN RAILWAYS— (7oraimMe(f. duty to passenger entering or leaving car — not negligence per se to step to side of slowly moving car, 464. alighting at switch where passengers were accustomed to get off, 464. boarding interurban car while in motion is negligence per se, 464. injuries to passengers lefore boarding and after leaving cars — company must provide safe access to and from its stations, 465. erection of stile at pleasure park, liability of railway . company, 465. passenger falling after dark into hole dug for trolley pole, 465. failure to warn passenger of danger, when carried beyond des- tination, 465. failure to let passenger off at designated place, 465. standing too close to track, 465. degree of care required of passenger — protruding arm or hand from window — not negligence per se to ride with arm on window, 466. extension of arm unnecessarily outside of window Is contributory negligence, 466. where passenger rested arm on iron bar extending across window, 466, and note 180. riding on platform — injury to passenger who occupied vestibule at invitation of com- pany, 467. passenger occupying platform assumes the risks, 467. when cars are operated in country rules applicable to steam rail- roads apply, 467. not negligence per se to stand on running board, 467. acceptance of passenger when no room inside, 467. as carriers of freight — usually street railways are not authorized to carry freight, 468. interurban companies by statute are authorized to carry freight, express and mail, 468. electric railway carrying freight is additional burden on country highways and city streets, 468. in Montana railway operated on city streets for transportation of freight not an additional burden, 468. traction company may give express company exclusive right to do business on its lines, 468. traction company which transports freight is responsible for safe delivery, 468. regulation of freight rates by Interstate Commerce Commission, 468, n. rate of speed — flagging systems — on country roads, no given rate of speed excessive, 469. flagging system which is reasonably safe must be adopted, 469. 858 INDEX. References are to Sections. INTERURBAN RAITUW AYS— Continued, rate of speed — flagging systems — where one Interurban company enters municipality over tracks of another, 469, n. fellow servant — master and servant — laborer on work car fellow f^ervant of those operating it, 470. injury of member of repair gang using snow shovel, 470. negligence of company concurring with that of a fellow servant, 470. motorman leaving meeting point before car coming from opposite direction, 470. employers' liaMlity laws — • such laws do not contravene the Fourteenth Amendment to Con- stitution, 471. employers' liability laws generally do not apply to street and Inter- urban railways, 471. where company incorporated under general railroad law, engaged in street railway business, statute does not apply, 471. electric car is not a "locomotive engine" within meaning of Indiana statute, 471. word "railroad" used in Georgia statute of 1856 includes street railways, 471. statutes relating to actions for death — common law rule permitting no recovery has been generally abro- gated by statute, 472. Missouri statute holding employer liable to extent of $5,000 applies to interurban railways, 472. joint use of tracks — in Ohio, statute authorizing street railway to occupy part of track of another street railway applies to interurban railways, 473. in absence of statutory authority one railway cannot condemn right of way of another, 473. in some states interurban companies may condemn right of way in municipality over tracks of street railway, 473. consent by municipality for street railway does not permit use of streets for interurban railway business, 473. traffic agreements — interurban companies may ent'er into traffic agreements with street railway companies, 474. right to make traffic agreements under Ohio statute, 474. in Indiana, legislature may impose conditions limiting privilege to enter into traffic agreements, 474. statute of New York as to intersections and connections, 474. specific performance will He to compel performance of traffic agreement, 474. INDEX. 859 References are to Sections. INTERURBAN RAlJuWAYS—Gontinued. consolidations, leases, mortgages — in most states interurban companies may enter into agreements for consolidation and lease of other companies, 475. purchasing company liable for existing liabilities of purchased company, 475. statute of Michigan as to liens, when it enures to benefit one who builds power plant, 475. interstate commerce law — interstate commerce law applies to interurban railways, 476. act makes no distinction between railways operated by steam and electricity, 476. INTOXICATION. of plaintiff when a defense to defendant's negligence, 305, n.; 328, n. 43, p. 537. as evidence of negligence, 323. degree of care due to intoxicated passenger, 328, n. 43, p. 537. is no excuse for contributory negligence, 328, n. 43, p. 537; 395. of passenger, justifies his expulsion, 370. duty to avoid injuring one who is rendered helpless by intoxication, 395. INVITATION. See Negligence, Conteibutoky Negligence. to board or leave moving car, 336, 337, 343. of carrier's servant to passenger to occupy unsafe position, 340, 341. to ride free, 365, 365, n. IOWA. municipalities of, liable for unauthorized grants, 16, n. statute of, requires consent of local authorities, 28, n. tracks must be laid with the strap or flat rail, 72, n. holds bridge not to be part of street, 240, n. statute of, as to street paving and repairs, 242, n. p. 405. rule in, that pedestrians must look and listen before crossing street railway tracks, 312. rule in, as to degree of care required of carrier, 328. traveling on Sunday held not to be contributory negligence, 366. the burden of proof in, as to contributory negligence, is on plaintiff, 381. permits the negligence of parents to be imputed to their children, 389. vacation of street subject to right of way granted to interurban com- pany, 441. interpretation of statute in, relating to taxation, 452. JOINDER. See Parties. 860 INDKX. References are to Sections. JOINT USB3 OF STREETS. additional traclis may be authorized in or across the same street, 108. qualification of this rule, 108, n.; 109. elevated railroad may be constructed above surface railway, 108, n. JOINT USE OP TRACKS. See Intkbubban Railways, Tbacks. how this right may be acquired, 110. compensation for, may be fixed by agreement, 110, n. p. 205. involving changes in construction of tracks. 111. damages for interruption of business during reconstruction. 111. coach companies using railway tracks, 112. right to prevent unauthorized use of tracks, 112. the new company must conform to the regulations of the old, 113, n. right to compensation for, 114. how compensation ascertained and determined, 115. statutes limiting the extent of, 115, n. measure of compensation for, 116. appropriation of the right to, 117, 473. transfer of the license for, 124. injuries caused to track by second company, 125. JOINT TORT-FEASORS, joint action against, 363. a release of one discharges all, 406. return "unsatisfied" on execution, against one, does not bar action against the other, 406, n. liability of for punitive damages, 410. joint liability of traction companies, electric light companies and telephone companies, 363, n. 259. JUDGMENT. provisions of, in New York in abutter's action to enjoin, 193. JUDICIAL SALE. See Pbopeety, Sale. JURY. See Tbial by Jury. allowing, to witness experiments at scene of accident, 407. KANSAS. power of municipalities in, to license street railway, 14, n. the fee of the street is in the county, 81. rule in, as to driving across tracks without looking and listening, 315, n. in, negligence per se to board moving car, 336, n. rule in, as to degree of care required of carrier, 328. the doctrine of comparative negligence in, 379. the burden of proof in, as to contributory negligence, is on the de- fendant, 381. permits negligence of parents to be imputed to their children, 389. INDEX. 861 References are to Sections. KENTUCKY. statute of, requires consent of local authorities, 28, n. exempts running of street cars from operation of Sunday law, 74. rule in, as to maintaining flag-men at dangerous crossings, 301. rule in, as to degree of care required of carrier, 328. statute of, modifies doctrine of contributory negligence where death results, 379. burden of proof in, as to contributory negligence, is on defendant, 381. statute of, requiring railroads to ring bells at highway crossings ap- plies to interurban railways, 432. KNOWLEDGE. of public regulations presumed, 228. by servant of danger when a defense to master, 413, 414, 415. KRUGER. testimony of, as to average electric current, 132, n. LABORER. injury of, while at work in the street, 314. INCHES. See Delay, Injunction, Abtjiting Owners. right to Injunction may be lost by, 24. LAMPS. See Headlights. LAPSE. See Abandonment, Fobfeitube, Franchise. LAST CLEAR, CHANCE. See Proximate Cause, Contbibutobt Negligence, Interurban Railways. statement of rule of, 380, n. p. 616; 458. as applied in different states, 380, n. p. 616. LATENT DEFECTS. in cars and their appliances, 332. LAW AND FACT. See Negligence, Contributory Negligence. public use a question of law, 104. also whether elevated road is illegitimate use of street, 185. negligence, when a question of law — failing to use head-lights, 299. to ring bell or sound gong, 300. running steam cars without sounding bell or whistle, 300. failing to employ a flag-man, 301, 312, 315. of grip-man at curve in street, 301, 305. running over children, 310. standing on or walking along track, 313. boarding moving car when encumbered with bundles, 336. leaving car while in motion, 337, 352. 862 INDEX. LAW AND FACT— Continued negligence, wJien a question of law — leaving car while encumbered with bundles, 337. boarding or alighting from between parallel tracks, 346. starting ear with sudden jerk, 348. or while passenger is in act of alighting, 349. allowing children to ride on platform, 351. violating public regulation as to rate of speed, 320, 359. sending children on the streets, 387. collisions with cars and other vehicles, 360, 301. when facts are undisputed, 378. when contributory negligence is, 317, 339, 340, 341. negligence — when a question of fact — using salt on tracks, 295. driver failing to keep a lookout, 306, 307. operating cars without conductor, 308, 335, 374. crossing street in front of car, 311. dropping single-tree on horses' heels, 322. failing to guard front platform, 333. boarding moving car, 336. boarding car by front platform, 343. resting arm or hand on window, 344. preparing to "alight while car is in motion, 345. one passenger alighting when car stops for another, 349. releasing brake while passenger is getting on moving car, 350. causing sudden jerk of car on down grade, 350. failing to maintain clear passage way for passengers to alight, 351. receiving and discharging passengers while car is in motion, 353. alighting at place other than regular stopping place, 354. overloading cars, 355. children attempting to cross street in front of cars, 385. when facts are doubtful, 378. when contributory negligence is, 338. LAW OF THE ROAD. does not apply to meeting of street cars and private vehicles, 302. nor to a street car passing on the left-hand track, 302. LEASE. See Lessoe and Lessee. power to lease franchises and other property, 424. requiring lessor to keep its track free from snow, 331. rights and liabilities of lessor and lessee, 425, 426. LEAVING TRAIN WHILE IN MOTION. on elevated roads, when not per se negligence, 216. LEAVING MOVING CAR. See Passengers, Contributory Negligenoe. when an act of negligence, 337. INDEX. 863 References are to Sections. LEGISLATIVE POWERS. See Legislatuee. may be delegated, 13, 75. cannot be abrogated, 221. LEGISLATURE. See Chaetee, Franchise, Forfeiture, Municipal Corporations. power of, to grant franchise without local consent, 3. may impose conditions not prescribed by constitution, 3. may require consent of companies owning coincident lines, 3, n. p. 7. may delegate its police power, 13. may validate franchise conferred without authority, 15. limitations on this power, 13. power of, to suspend or revoke charter or franchise, 39. to amend charter does not include power to revoke it, 39. constitutional reservation of right to repeal charter, 39. discretion of, not subject to judicial review, 39. has no power to declare a forfeiture of a franchise, 44. but may prescribe what shall ipso facto produce it, 45, 46. power of, to amend charter of municipal corporation, 35. to amend charter of private corporation, 36. limitations on this power, 36, 37. cannot change the rights of incorporators as between themselves, 37. cannot change the object of the corporation, 37. power rests in, primarily, to fix location of railway, 55. formerly granted charters by- special act, 55. may authorize substitution of one motive power for another, 37. may authorize change of motive power by special act, 55, n. cannot prevent its successor from authorizing any particular means of propulsion, 73. may authorize change of motive power without consent of local authorities, 73. has paramount authority over roads and streets, 75. may delegate its power to municipal or other local authorities, 75. may legalize obstructions in streets and highways, 75. cannot abrogate its power or control its successors, 221. express authority must be conferred by, to enable municipality to regulate rates of fare, 233. intent of, to surrender taxing power must be clearly expressed, 2G9. permission of, to sell corporation property, 422. to mortgage railway property, 423. to lease franchises and other property, 424. LESSEE. See Lessok and Lessee. rights and remedies of, in elevated railroad cases, 204. LESSOR. See LiEssoE and Lessee. rights and remedies of, in elevated railroad cases, 203. when not liable for lessee's negligence, 219. 864 INDEX. References are to Sections. LESSOR AND LESSEE. See Lease, Lessoe, Lessee, Pbopeett, Stbeet Paving and Repaibs, License and License Fees, Joint Use of Tbacks. responsibility of, for depositing snow near the track, 331. no valid lease of railway property can be made without legislative permission, 424. concurrence of the stockholders is not essential, 424. leasing of parallel lines, 424. a valid lease exempts lessor from liability for lessee's negligence, 425. obligations of lessee determined by charter of the lessor, 425. negligence of lessee concurring with that of third party cannot be imputed to lessor, 425, n. lessor and lessee both liable where lease has been made without legis- lative authority, 425, n. p. 686. the lessee must pay the lessor's license fees, 426. a license to use- does not authorize the licensee to sublet, 426. liability of lessor to pedestrian injured by defective pavement, 426. liability of lessee for the debts of the lessor which It assumes, 426. LETTING. See Bids fob Fbanohise. LIBEL. of servant by master, 417. LICENSE. See Invitation, License and License Fees. a franchise is not a mere license, 5. when a grant is a mere license, 6. not a special privilege or immunity within constitutional provisions, 6. permission to move building does not authorize obstruction of rail- way, 42. conditional consent is a mere license, 46. for joint use of tracks cannot be assigned, 124. LICENSE AND FEES. See License. defined, 279. distinction between tax and license, 279. the fees exacted must be reasonable, 279. power of the state to license and exact fees, 280. may be delegated to municipality, 280. limitation on the power to exact license fees, 280. the presumption is in favor of the power, 281. contracts relating to, are construed liberally in favor of the public, 282. of the right to increase license fees, 283. the exaction of a license as affecting the power to tax and assess, 285. payment of bonus as affecting right to exact license fees, 286. how amount of bonus determined, 287. liability of lessee to pay license fees exacted of lessor, 288, 426. INDEX. 865 References are to Sections. LIENS. See Mortgage. on track may be obtained by contractors, mechanics, laborers and material-men, 428. but not under the statute of State of Washington, 428. may be obtained by statute In Missouri, 428, n. where retention of personal property essential to preservation of, 428, n. LIFE. danger to, from electric current, 132. voluntary exposure of, to danger while attempting to save, 382. LINES. See Tracks, Route. LIMITATIONS ON THE RIGHT OF ACTION. See Elevated Railways. LIVE WIRES. See Poles and Wires, Wires. liability of railway company for injury by, 292. LOCAL AUTHORITIES. See Consent of Local Authorities. delegation of power to, 13. meaning of word, 28. remedies of, for defective construction, 59. conditions imposed by, as to issuance of transfers, 437. LOCAL TAXATION. See Taxation. LOCATION. See Tracks, Route, Elevated Railways. remedy for unauthorized, 57. of routes under the New York Rapid Transit Act, 161. LOCOMOTIVES. See Engine. not considered real estate, 422. are subject to execution, 422. "LOOK AND LISTEN." See Negligence, Pedestrian, Driving, Contributory Negligence. duty of motorman, gripman and driver to look ahead, 306, 307. degree of care required of company, 309. pedestrians crossing tracks, 311, 312. driving across tracks, 315. driving along tracks, 316. passenger leaving car and passing around it in front of car on par- allel track, 346, n. 155, p. 564. rule applied to travelers crossing interurban tracks, 456. as 866 INDEX. Beferences are to Sections. LORD'S DAY. See SuNDAT. LOUISIANA. rule in, as to valuation of capital stock for purpose of taxation, 274. holds that pedestrians must look and listen before crossing street rail- way track, 312. rule in, as to driving across the track without looking or listening, 315, n. non-committal as to which party has the burden of proof on con- tributory negligence, 381. has repudiated the rule imputing to children the negligence of their parents, 389. action by employe in, for libel, 417. LUNATICS. contributory negligence of, 386. McCLUBR. device of, to prevent interference with telephone current, 135, n. pp. 246, 253. MACHINEHY. See Negligence, Conteibtjtoey Negligence, Cabs and Theik Appliances, Master and Servant. MAINE. rule in, as to driving across tracks without looking and listening, 315, n. holds traveling on Sunday to be contributory negligence, 366. the burden of proof as to contributory negligence is on the plaintift, 381. permits the negligence of parents to be imputed to their children, 389. MALICIOUS ACTS. See COEPOBATIONS, Pbivate. of servant, liability of master for, 410. MALICIOUS PROSECUTION. liability for, of carrier's servants, 373. MANDAMUS. to enforce conditions imposed by local authorities, 28, n. 108, p. 52. of consent, 30. to compel commissioner of public works to issue permit to use cable ipower, 37, n. 15, p. 70; 69. to compel construction and operation of railway, 44, n. 40; 65, 234. to compel construction of railway according to charter, 59. to compel public officers to perform their duty in 'ocating lines, 60, n. the use of this writ illustrated, 65, n. to compel erection of viaducts, 220, n. 6, p. 360. of bridges, 248. to compel placing guard wires, 239, n. to compel railway company to pave or repair streets, 261. to compel temporary chane'e of location 26! n a7 n 424. INDEX. 867 Eeferences are to Sections. MANSFIELD. testimony of, as to danger from electric current, 132, n. p. 237. MARYLAND. telegraph held to be an additional burden on the soil, 128. the same ruling made as to the telephone, 128. damages as affected by benefits, 195, n. p. 326. taxation in, of shares of non-resident stockholders, 274. rule in, as to degree of care required of carrier, 328. traveling on Sunday held not to be contributory negligence, 366. statute of, as to street paving and repairs, 242, n. p. 405. the burden of proof in, as to contributory negligence, is on defendant, 381. permits negligence of parents to be imputed to their children, 389. MASSACHUSETTS. statute of, requires consent of local authorities, 28, n. selectmen may revoke franchise, 40, n. statutory provision of, as to delay in constructing and operating rail- way, 47, n. exempts running of street cars from operation of Sunday law, 74, n. subway not an additional servitude, 88. by statute, authorizes joint use of tracks, 115, n. p. 212. regulates fare for school children, 233, n. 51, p. 383. requires companies to keeii in repair bridges occupied by them, 242, n. 3, p. 406. compensation to be fixed by railroad commissioners, 115, n. p. 212. authorizes joint use of motive^ power, 115, n. p. 212. in fixing compensation for joint use of traclis no allowance made for loss of profits, 116, n. p. 215. allowance may be made for interest on the cost of bridge, 116, n. p. 215. the telegraph held not to be an additional burden on the soil. 128. the same ruling made with reference to the telephone, 128. has system of elevated railroads, 152. elevated railway an additional servitude, 185, n. 95, p. 300. by statute, regulates the removal of snow from tracks, 239. statute of, as to street paving and repairs, 242, n. p. 406. capital stock in, taxable at the residence of the owner, 275. rule in, that ,pedestrians must look and listen before crossing tracks, 312. working on street without lawful authority, 314. rule in, as to driving across tracks without looking and listening, 315, n. Sunday traveling act of, 366, 416. the burden of proof in, as to contributory negligence, is on plaintiff, 381. permits negligence of parents to be imputed to their children, 389. statute of, making death by negligence a misdemeanor, 396. directors in, are not liable for claims sounding in tort, 405. 868 INDEX. Befereuces are to Sections. MASSACHUSETTS— ConHnwefJ. rule in, as to lessor's liability for torts, 425, n. method of levying tax in, on interurban railway, 452. MASTER AND SERVANT. See INTEEURBAN RAILWAYS. a passenger assisting conductor is not a fellow-servant, 326. when motor-man exceeds his authority in inviting a boy to ride tree, 365, n. authority of carrier's servants to remove persons from the car, 367. carrier is responsible for criminal, malicious and reckless conduct of its servants, 372, 396. and for false arrest or malicious prosecution caused by them, 373. when declarations of servant not competent evidence against master, 399. when conduct of servants not admissible In evidence against master, 899. the unfitness of a servant cannot be shown by a single act of such employe, 404. liability of master for employing or retaining incompetent servant, 410. when relation of exists, 411. who are servants, 411. who are fellow-servants on street railways, 412. knowledge of company that fellow-servant was incompetent, 412. liability of company for injuries to employes by negligence of vice- principal, 412. master's liability for defective appliances — safe place to work, 413. risks assumed by the servant, 413, 414, 415. master's liability for injury caused by defective platform, 413. for injury caused -by defective foot-board on engine, 413. for injury caused by defective brake, 413. for injury caused by vicious horse, 414. risks not assumed by servant, 415. risks assumed by servant, 415, n. violation of Sunday law by servant as defense to master, 416. working on Sunday in violation of law, 416. libel and slander of servant by master, 417. servant's criminal liability for cruelty to animals, 418. when corporation liable to servant for wages left with its secretary, 419. extra pay for extra hours, 420. continuous employment in excess of statutory limit, 420. wages deposited by servant to secure the faithful discharge of his duties, 421. who are fellow-servants on interurban railways, 470. MATERIAL-MEN. 8e« LncNB. INDEX. 869 References are to Sections. MAYOR'S COMMISSIONERS. See Elevated Railways. appointment of, 154. duties of, 155. MEASURE OF COMPENSATION. See Compensation. MEASURE OF DAMAGES. See Eminent Domain, Damages, Compensation. MECHANIC'S I..IENS. See Liens. MERCHANDISE. See Goods, Bailee. MICHIGAN. statute of, requires consent of local authorities, 28, n. makes delay in construction a ground of forfeiture, 47, n. rule In, that pedestrians must look and listen before crossing street railway track, 312. rule in, as to driving across track without looking and listening, 315, n. the burden of proof In, as to contributory negligence, is on plaintiff, 381. stockholders in, are not liable for claims sounding In tort, 405. MINISTERIAL DUTY. performance of, may be compelled by mandamus, 60. MINNESOTA. rule in, as to pedestrians crossing tracks without looking and listen- ing, 312. rule in, as to attempting to drive across track without looking or listening, 315, n. rule In, as to degree of care required of carrier, 328. the burden of proof in, as to contributory negligence, is on defendant, 381. permits negligence of parents to be imputed to their children, 389. MINOR. See Children. measure of infant's recovery for personal injuries, 409. of personal representative for death of, 409. of parent's recovery for death of, 409. MISCARRIAGE. when caused by nervous shock, may be a ground for the recovery of damages, 409. MISDEMEANOR. See Sunday. in what states traveling on Sunday Is, 74, n. MISSISSIPPI. the burden of proof In, as to contributory negligence, is on plaintiff,' 381. 870 ISTDEX. References are to Sections. MISSOURI. constitution of, requires consent of local authorities, 28, n. statute requires consent of local authorities, 28, n. construction of statute forbidding parallel lines, 64, n. city council may prescribe mode of determining compensation for joint use of tracks, 115, n. p. 213. the telegraph held not to be an additional burden on the soil, 128. the same ruling made with reference, to the telephone, 128. elevated railroad system in, 152. elevated railway is an additional servitude, 185, n. 95, p. 300. rule in, that pedestrians must look and listen before crossing street railway track, 312. rule in, as to driving across tracks without looking and listening, 315, n. rule in, as to degree of care required of carrier, 328. the burden of proof in, as to contributory negligence, is on defendant, 381. stockholders in, are not liable for claims sounding in tort, 405. when corporation liable to servant for wages left with secretary, 419. by statute, mechanics' liens may be obtained for work performed, 428, n. necessity for obtaining consent of local authorities for use of streets by interurban companies, 435. double damages allowed for failure to fence through unenclosed fields, 443, n. interurban company required to file map of its whole route, 447. statute of, relating to death of employees, applies to interurban rail- ways, 472. MIS-USER. See FOBFEITUKE. as a ground for forfeiting the franchise, 44, 45. failure to construct and operate as required by charter, 52. MITIGATION OF DAMAGES. the Georgia rule, where the plaintiff was guilty of negligence of, 379. formerly the rule in Tennessee, 379. provocation proved in, 372, n. p. 603. MONOPOLY. See Exclusive Grants. MONTANA. constitution of, requires consent of local authorities, 28, n. rule in, as to degree of care required of carrier, 328. railway operated on city streets for carriage of freight not an addi- tional burden, 468. MORTGAGE. See INTEEUEBAN RAILWAYS. power to mortgage is implied from the authority to borrow money to construct the road, 423. INDEX. 871 References are to Sections. MORTGAGE— Continued. but this does not include the right to mortgage a prerogative franchise, 423. the right to build and operate is not a prerogative franchise, 423. effect of dissolution of corporation on mortgagee's rights, 423. the mortgage may cover future acquisitions, 423. where there is a lien on personal property at time It becomes mort- gagor's, 423. when not rendered wholly invalid by being ultra vires in part, 423. priority of, over vendor's lien, 423. right of holder of bonds to redeem from foreclosure sale, 427, n. MOTIVE POWER. See Tracks. legislature may authorize change of, 37. local authorities cannot prevent change of, when authorized by legis- lature, 37, n. change of, as a consideration for increasing fares, 41, n. ratification of ordinance authorizing, 45, n. change of, may be authorized by special act, 55, n. different kinds of, classified, 66. what motive power may be used, 67. company not confined to kind in use when its charter was granted, 67. state may interfere to prevent unauthorized change of, 67. the right to use electricity includes the right to use poles and wires, 67. the corporation may be given a choice of, 69, n. silence as to, 68. change of, 69, 69, n. changes authorized by special act, 73. immaterial in determining character of railway, 80, n. use of a new motive power. 111. joint use of, by railway companies, 119. appropriation of the right to such joint use, 121. use of electricity as, 126. MOTOR-MAN. See Dbivee, Gmpman, Fellow Servant. duty of, to keep a lookout ahead, 306. attention of, temporarily diverted from the track, 307. failure to employ conductor and, held negligence per se, 308. municipality cannot prescribe qualifications of, 451. MOVING BUILDING. must not interfere with wires, 42, n. nor obstruct cars, 303. MOVING CAR. See Passenger. boarding or alighting from, 336, 337, 464. 872 INDEX. References axe to Sections. MUNICIPAL. BOARDS. cannot abrogate their legislative or police powers, 4. MUNICIPAL CORPORATIONS. See Stbeet Railways, Inteetteban Railways, Regulations, Remedies, Obdinances, Police Powees. power of, to grant street railway franchise, 14. of council cannot be delegated to executive oflacers, 14. legislative power of, not subject to judicial control, 14, n.; 16. not liable in damages for unauthorized grant, or improper construc- tion or operation, 16. otherwise when the city owns the railroad, 16. amendment of the charter of, 35. power of legislature to amend municipal charter, 35. effect on corporate franchises previously granted, 35. may waive forfeiture of franchise, 46, n. may enforce forfeiture of charter rights, 49. may waive the forfeiture, 50. generally empowered to determine all questions of location and con- struction, 55. under general law, charters confer no rights to the use of streets, 55. general authority of, to determine where tracks shall be laid, 55. this power not affected by certain constitutional provisions, 55. may be exercised with reference to charter granted by special act, 55. officers clothed with this power cannot delegate it to others or to the grantee, 55. may maintain ejectment when railway is unauthorized, 57. optional routes and additional tracks, 61. may impose reasonable conditions upon an interurban railway, 436. police powers of, 222. express powers, 223. Implied powers, 224. to require employment of both driver and conductor, 225. to prescribe degree of care in operating cars, 226. to regulate the mode of entering and leaving cars, 227. passenger's knowledge of such regulations presumed, 228. to regulate speed, 229. to prescribe where cars may stop, 229. to require cars to stop at railroad crossings, 229. to regulate the cleaning and sprinkling of tracks, 230. to regulate tracks and equipment, 231. to regulate fares, 232, 233. to prescribe when cars shall be run, 234. to regulate the use of snow plows, 235. to require the making of quarterly reports, 236. to regulate transfers and coupon tickets, 237. to prohibit smoking on cars, 238. to prohibit the use of sand on tracks, 239. INDEX. 87s References are to Sections. MUNICIPAL CORPORATIONS— Continued. to require cars to be numbered, 239. to require that cars be kept at a safe distance from each other, 239. cannot enlarge the obligation to pave by subsequent ordinance, 242. may determine the necessity for laying pavements, 254. and their character and when they shall be laid, 254. are liable for injuries caused by defects in their streets, 255. remedy of, for judgment obtained against them by reason of com- pany's failure to pave, 256. right of, to recover of company its share of cost of paving, 257. measure of damages in such cases, 258. when it may excuse the company from paving, 259. may enforce company's obligation by mandamus, 2G1. power of, to grant exemptions from taxation, 267. to commute taxes, 268, 269. to assess track and right of way for street improvements, 275, 276. for the cost of widening streets, 277. for other local improvements, 278. to exact license fees, 279, 280, 281, 282. to increase license fees, 283. to exact a bonus for the use of streets, 284, 285, 286. how amount of bonus fixed and determined, 287. to require lessee to discharge lessor's obligations, 288. MUNICIPAL OFFICERS. cannot abrogate their legislative or police powers, 4. NATURAL PERSONS. may acquire franchise, 6, n. NEBRASKA. constitution of, requires consent of electors to street railway fran- chise, 28, n. track must be laid with the strap or flat rail, 72, n. electric railway is an additional servitude, 83, n. statute of, as to street paving and repairs, 242, n. p. 406. rule in, as to degree of care required of carrier, 328. the burden of proof in, as to contributory negligence, is on defendant, 381. stockholders in, are not liable for claims sounding in tort, 405. NECESSITY. running street cars on Sunday as a work of, 74. as an excuse for traveling on Sup^ay, 366. NEGLIGENCE. See CoNTBiBTrTOBY Negligence, Imputed Contbibutory Negligence, Atteactive Nuisances, Childeen, Infiem Persons, Disa- bilities, Passengers, Intebueban Railways. municipality not liable for a tort of its licensee, 16. but may be for improper construction of a road which it owns and operates, 16. 874 INDEX. Keferences are to Sections. NEGLIGENCE— CoJitiwMeS. injury to persons by objects falling from elevated railways, 211. by unguarded excavations in the street, 212. by improper construction and management of elevated railways, 213. burden of proof in such cases, 213. improper construction of stair-ways, stations and approaches to trains, 214. statutory regulation as to gates on ear platforms, 215. entering or leaving car while in motion, 216. riding on car platform, 216. standing in the car while It Is in motion, 216. Injury to persons on or near the track of elevated railway, 218. lessor not liable for lessee's negligence, 219. most frequent causes of injuries to other travelers, 289. how the number of such accidents could be materially reduced, 289. injuries caused by falling objects, 211. excavations and obstructions in the street, 290. creating and leaving depressions in the street, 290. failure to guard open trenches, 290. unnecessarily obstructing the street by piling rails therein, 290. permitting rails to project beyond barriers in the street, 290. degree of care required to prevent such accidents, 290. different rule as to tracks laid through private grounds, 290. failure to repair pavements, 291. the judgment of the local authorities not conclusive as to the defendant's duty, 291. construction and repair of tracks and appliances, 292. live wires in streets, 292. attractive nuisances, 292, n. p. 468. the duty to properly construct and keep in repair exists at com- mon law, 292. but it does not extend to the repair of cross-walks, 292. does include switches, 292. and foot-way approaches to a bridge, 292. liability for carelessly maintaining a defective turn-table, 292. for Injuring child by operation of turn-table, 292. leaving turn-tables unsecured in places frequented by children, 292. leaving heated rail unguarded, 292, n. 31, p. 469. improper construction of intersection with steam railroad, 292. using flange rails to prevent cars running off the track, 292. permitting rails to protrude above the general surface of the street, 292. adopting or using a defective slot in cable railway, 292. prior knowledge of defect not essential to liability, 292. INDEX. 875 References are to Sections. NEGLIGENCE— CowMraMeci. degree of care required to prevent injury to persons by electric cur- rent, 292. failure to remove snow and ice from the track, 293. obstructing travel by depositing snow on the roadway, 294. using salt to melt the snow on the track, 295. the degree of care required in selecting and maintaining cars and equipment, 296, 298. inspection of cars while in use, 290. liability for using defective and dangerous, 29G. of the right to use gong and bell, 297. frightening horses — by the use of snow plows and sweepers, 293, .298. the sounding of bell or gong, 297, 298, 297, n. 49, p. 476. the appearance of moving cars, 298. street railway not a nuisance because it frightens horses, 298, n. failure to use signal lights, 299. failure to give warning of appi'oach by bell, gong or whistle, 300. collisions at railroad crossings — steam cars have paramount right of way, 301. failure to maintain flag-man, 301. care required of driver in approaching railroad crossing, 301. the flag-man not the servant of the street railway company, 301. the law of the road does not apply to private vehicles meeting street cars, 302. nor to cars passing on the left hand track, 302. street cars have the superior right of way as against private vehicles and pedestrians, 303, 457. right must not be asserted recklessly, 303, p. 490. reasons for this rule, 303, 303, n. p. 488. private vehicles must leave the track to avoid obstructing car, 303. tracks must not be obstructed by moving buildings, 303, 453. when drawing heavy weights over tracks will be enjoined, 303. must give driver reasonable time to unload goods, 303, n. p. 490. no preferential right in favor of cars at street crossings, 304. the company must man its cars with suitable employes, 305. duty of driver, motorman, and conductor to avoid collisions, 305. their common law duty, 305. must strictly observe duties imposed by statute or ordinance, 305. degree of care and vigilance required of them, 305. how affected by place, time and other circumstances, 305. in case of sudden emergency, 305. drivers and motor-men must maintain vigilant watch of the track, 305, 306. position of, on the car, 305. may presume that travelers will leave the track, 305. but cannot act upon this presumption as to children, 305. 876 INDEX. References are to Sections. NEGLIGENCE— Co»«t«Me(i. duty of, to stop to avoid inflicting injury, 305. duty of, in approaching curve in the street, 305. duty of, to man cars with competent employes, 305. duty of driver, motor-man or grip-man to look ahead, 306. his duty to the traveling public, 306. to his employer, 306. to his passengers, 306. not required to direct his eyes constantly to the street in front of his car, 306. or to keep a watch on each side of his car to the rear of the front platform, 306. may give his attention to passenger entering the car, 306. or look up and down intersecting streets, 306. stopping the car to drive away mischievous boys, 306. greater watchfulness necessary at street intersectlrais, 306. attention of driver, motor-man or grip-man temporarily diverted from track, 307. looking elsewhere creates no presumption of negligence, 307. cases where his inattention was held to be negligence, 307. making change for a passenger, 307. looking at a fire, 307. looking back at a car which had just passed, 307. talking to a friend on the platform, 307. idly gazing at persons across the street, 307. operating cars without conductor, 308. only ordinary care required of company to avoid collisions, 309. unless the railway be operated for private purposes merely, 309. or it the cars are moved in an unusual manner, 309. injuries to children and infirm persons, 309, 310. great vigilance must be exercised to avoid injuring them, 309, 310. drivers and motor-men cannot presume that children will leave the track, 310. child suddenly appearing in the vicinity of the track, 310. passing behind one car and in front of another, 310. attempting to board car from between parallel tracks. 310. climbing on rear platform, 310. approaching the car in front of the rear platform, 310. going upon the track while the driver Is in the car, 119. playing near track, 310. pedestrians — must exercise ordinary care and prudence to avoid collisions, 311. must bear in mind the dangers to be apprehended from their situation, 311. must keep a lookout for cars, 311. INDEX. 87T Beferences are to Sections. NEGLIGENCE— C7ontiWMe(?. pedestrians — not negligence per se to cross 50 feet in advance of horse-car, 311. miscalculation as to distance and speed, 311. must not take doubtful chances, 311. children of ten years must keep a lookout for cars, 311. members of a procession are governed by the ordinary rules as to contributory negligence, 311. must look and listen for cars before crossing, 312, 456. states in which this rule is maintained, 312. the rule as applied to street railway employes, 301, n. 65, p. 481. the rule as applied to interurban companies, 456. reasons for this rule, 312. a different rule has been adopted in Illinois, Minnesota and Virginia, 312. standing upon or walking along track, 313. must look behind, 313. standing between parallel tracks while waiting for car, 313. flag-man standing at railroad crossing, 313. walking on track when car is not due, 313, n. injury to workmen In the street, 314, n. degree of watchfulness required of such persons, 314. failure to give warning of approach of car, 314. not negligence to proceed on a signal from foreman, 314. Massachusetts rule as to working in the street without lawful authority, 314. car running off track injuring workman, 314, n. drivers of private vehicles — driving across tracks without looking, 315. the omission to look and listen is contributory negligence, 315. states in which this rule obtains, 315. states in which this rule does not obtain, 315. reasons In support of rule, 315. driving private vehicles along the track, 316. not per se negligence to drive private vehicle along the track, 316. nor to travel by the side of the track, 316. but it may be negligence to closely follow a car up a steep grade, 316. private driver must turn off when requested, 316. driver looking behind — rear end collision, 316, n. p. 518. or, without request, when necessary to avoid a collision, 316. degree of care required of travelers on streets, 317. more vigilance required than on streets where there are no rail- way tracks, 317. greater vigilance required when on the tracks than when else- where on the street, 317. 878 INDEX. Eeferences are to Sections. TSiEGhlGENCE— Continued. error of judgment may be contributory negligence, 317, 321. woman attempting to drive phaeton across in front of approach- ing car, 317. driver of private vehicle must Increase his speed when necessary to avoid a collision, 317. when there is mutual fault there can be no recovery, 317, 321. attempting to drive over a bank of snow thrown up from the tracks, 317. stopping the car to avoid running over a pedestrian who has fallen, 317. degree of care as affected by nature of employment, 318. the rule applied to firemen, 318. rate of speed, 319. at what places and under what circumstances the ordinary speed should be reduced, 319. at what rate street-cars may lawfully travel, 319. at what rate interurban cars may lawfully travel 469. liability as affected by ordinances limiting speed, 320, 359. when such an ordinance becomes competent evidence, 320. when negligent to run up to the limit of the ordinance, 320. collisions with vehicles near track — error of judgment, 321. leaving wagon standing too near the track, 321. wantonly running against a wagon left in that position, 321. when pulling down the side curtains of an open car is not negligence, 321. whipping a horse which is being led near the track, 322. frightening the horses by permitting single-tree to drop on their heels, 322. injury by a runaway team temporarily detached from the car, 322. leaving horses untied in the street, 322. no presumption arises from the mere fact of an injury, 323. even If the Injured person Is a young child, 323. presumption in case of collision between car and private vehicle pro- gressing side by side, 323. intoxication as evidence of negligence, 323. See Intoxication. of the carrier — street railway as a common carrier, 324. as a carrier of goods, 324. passenger defined, 326. how relation is created, 326, 326 n. pp. 530, 531. relation terminates when the passenger leaves the car, 326, 326, n. p. 531. rights of persons riding without paying fare, 326. news boys, 326. INDEX. 879 References are to Sections. NEGlsIGBNCE— Continued, of the carrier — passengers assisting to replace car on track, 326, 412. when requested to assist, are not mere volunteers or fellow-servants, 326. degree of care due to such persons, 326. duties which the carrier owes to its passengers considered gen- erally, 327. what duty extends to, and implies, 327. not negligence to operate cars during strike, 327, n. duty to warn colored passengers of conspiracy, 327, n. intoxication does not excuse want of care by passenger, 328, n. degree of care required of carrier, 328, 462. as formulated by the courts of various states, 328. care required to avoid injury to young and infirm passengers, 330. the carrier not an insurer of the safety of its passengers, 328. passengers must exercise reasonable care for their own safety, 329. and observe the reasonable rules and regulations of the car- rier, 329. compelling children to stand on platform, 330. assisting the young and infirm to enter or alight, 330. tracks and bridges, 331. liability for defects in, does not depend upon ownership, 331. derailment of car by defective switch, 331. tracks laid too near to each other, 331. depositing snow in ridges near track, 331. dangerous condition of track while in process of repair, 331. stopping car over dangerous excavation, 331. the cars and their appliances, 332. degree of care required in the selection, maintenance and inspec- tion of, 332. using defective grips and brakes, 332. natural effect of climate on, must be anticipated, 332 332. n. p. 542. necessity of frequent and thorough inspection, 332. when burden of proof as to careful inspection is on the carrier, 332. care must be observed to prevent interference with brakes by children, 332. inability to control cars raises a presumption of negligence, 332. injuries caused by patent defect in door fastening, 332. failing to remove ice and snow from the steps of the car, 332. maintaining defective covering of wheel, 332. passenger's dress catching on curtain hook, 332. passenger's dress catching on bolt or screw, 332. appliances must be safe whether old or new, 332. 880 INDEX. Kefeiences are to Sections. NEGLIGENCE— CoraHreMecJ. injuries caused by ring in trap door, 332. injuries caused by worn strap lianger, 332. latent defects for whicli carrier is not responsible, 332. carrier not required to take passengers on a car disabled -while en route, 332. failure to warn passenger of existence of known defect, 332. failure to enclose or guard front platform, 333. brake shoe disturbed by incoming passenger, 332, n. failing to warn passenger that car is damaged, 332. duty to light stations, 334. duty to keep stations in safe condition. 334. failure to employ both driver and conductor, 308, 335. starting car with sudden jerk while passengers are entering or alight- ing, 336, 337, 345, 347, 348, 349, 350. telling boy to jump on or off while the car is in motion, 336, 337. failure to stop car at passenger's destination. 336, failure to stop car when passenger is in iminent peril, 336, 350. getting on car before it reaches proper stopping place, 336, n. boarding front platform of moving car without signaling, 336, n. negligence per se in Kansas to board moving car, 336, n. the car must be stopped on signal from passenger, 337. striking at a child with a whip, 337. not negligence to step off slowly moving car, 337. getting off car encumbered with bundles, 337. running car at a dangerous rate of speed, 338. knowledge of conductor that passenger is riding in a hazardous posi- tion. 338, 339, 341. passenger on rear platform, thrown off in rounding curve, 339, n. passenger leaving safe place and going to rear platform, 339, n. inviting passenger to ride on the platform, 340. permitting passenger to ride on the step or foot-board, 341. riding with one foot on platform and other on step, 341, n. riding on step when encumbered with bundles, 341, n. passengers must be given an opoprtunity to enter car in safety, 348. and suflScient time and opportunity to alight, 349, 464. especially if the passenger be young or infirm, 349. sudden starting of car to avoid collision with a runaway horse, 350. permitting passengers to ride on platform, 351. permitting them to leave the car by the front platform, 352. children should be prevented from leaving by front platform, 352. different rule as to pay-as-you-enter cars, 352. receiving and discharging passengers while the car is In motion, 353. sudden starting of car which has been stopped between crossing, 354. permitting car platform or steps to become crowded, 355. regulations as to entering, occupying or leaving car, 356. as to riding on front platform, 357. INDEX. 881 Beferences are to Sections. i^EGlulGENCE— Continued. permitting packages to be deposited in car, 358. regulations as to pacliages, 358. violation of statute or ordinance limiting rate of speed, 359. collisions with cars and other vehicles and objects near the track, 360. placing track near telegraph poles or other obstructions, 360. failure to slacken speed to avoid collisions, 360. negligence of driver resulting in running car off the track against a bridge, 360. causing injury of passenger by driving against a horse near the track, 360. presumptions arising from injuries to passengers, 361. negligence of carrier not imputed to its passengers, 362. injury of free passengers, newsboys and trespassers, 365. carelessness in removing sick passengers from car. 368. in ejecting disorderly passengers, 369. in expelling intoxicated passengers, 370. in expelling persons from car while it is in motion, 371. liability of carrier for reckless, criminal and malicious conduct of its servants. 372. operating car during storm, 213, n.; 328, n. 43, p. 537. liability for injury of one passenger by another, 374. nature of the passenger's action, 375. liability for care and custody of articles left in car, 376. of passengers — care required of passengers for their own safety, 329. they must observe the reasonable rules and regulations of the carrier, 329, 356, 357, 358. relation of carrier and passenger terminates when passenger leaves the car, 326. boarding or leaving car by front platform, 333, 343. different rule as to pay-as-you-enter cars, 352. climbing over gate or fender at front platform, 343. boarding car while in motion, 336. when encumbered with bundles, 336. leaving car while in motion, 337. when ordered off by conductor, 337. to avoid a blow from driver's whip, 337. when encumbered by load or bundles, 337, 348. stepping off backwards, 337. leaving cable car when It is in full motion, 337. electric car running at a high rate of speed, 337. riding on front platform, 338, 467. when rules require passengers who are smoking to ride there, 338. riding on rear platform, 339, 467. failure to take hold of rail to prevent falling, 889. 882 INDEX. References are to Sections. NEGLIGENCE— CowHwMed. of passengers — riding on driving-bar or dash-board, 340. sitting on steps, 340. riding on bumpers, 340, n. riding on step or footboard, 341, 467. standing in car, 342. failing to make use of supports, 342. protruding head, arm or hand from window, 344. preparing to alight while car is in motion, 345. alighting or hoarding car from between parallel tracks, 346. boarding or leaving car without giving signal to stop, 348, 349, 350. care required of passenger when encumbered with bundles, 348. when young or infirm, 330, 351, 352. attempting to alight at a place other than a regular stopping place, 354, 355. riding on overcrowded cars, 355. stumbling over packages, 358. free passengers, newsboys and trespassers, 365. traveling on Sunday, 366. comparative negligence. See CoMPAKATivE Negligence. contributory negligence. See CoNTEiBUTOET Negligence. negligence distinguished from wilful acts, 378. negligence will not preclude a recovery for injuries wilfully in- flicted, 378. qualification of the general doctrine of, '380. liability notwithstanding negligence of injured person, 380. proximate cause. See Pboximate Cause. burden of proof as to contributory negligence, 381. voluntary exposure to danger to save human life. See CONTKIBUTOET Negligence. attempts to escape from apparent danger. See CoNTEiBUTOEY Negligence. contributory negligence of children. See Childeen. of aged and infirm persons, 366. of parents. See Paeents. imputed contributory negligence. See Imputed Contributoet Negligence. negligence of independent contractor, when employer responsible for, 394. intoxication as evidence of negligence, 395. criminal negligence, 396. INDEX. 883 References are to Sections. ii'EGL.lGTSNCE— Continued. evidence, pleading and practice — exclamations of pain, 397. declarations of injured person, 398. declarations and conduct of defendant's servants — privileged com- munications, 399. declarations of third persons, 400. evidence of other accidents, 401. precautions adopted after accident, 402. opinion evidence as to time and distance within vsrhich cars msy be stopped, 403. pleading and practice in personal injury cases, 404. See Pleading and Peactice, Bvidex(!E, Vabiance. liability of stockholders and directors for obligations grovi^ing out of torts, 405. release of one of tvro or more joint tort-feasers discharges all, 406. physical inspection, examination and tests of plaintiff in personal Injury cases, 407. sending the jury to witness experiments in the management of cars, 407. proximate cause, fright and its conseq.uences, 408. elements and measure of damages in personal injury cases, 409. exemplary or punitive damages, 410. liability of master to servant for defective appliances, 413. for injury to servant kicked by vicious horse, 414. to conductor injured by defective brake, 413. to driver, for injury caused by defective floor in car, 413, n. to servant injured by falling through roof, 415. a valid lease exemifts the lessor from negligence in the management of the railway, 425. if lease be unauthorized, both parties to it may be liable for negli- gence of lessee, 425. NERVOUS SHOCK. See Damages. not alone a cause of action or an element of damages, 408. but defendant may be responsible for sickness caused by, 408. NEVADA. statute of, as to street paving and repairs, 242, n. p. 406. NEW HAMPSHIRE. statutes of, require damages to be paid to abutter before company enters on highway, 91, n. p. 172. traveling in, on Sunday held not to be contributory negligence, 366. burden of proof in, as to contributory negligence, is on defendant, 381. NEW JERSEY. statute of requires consent of abutting owners, 18, n. or, for elevated railroads, approval of commissioners, 18, u. 884 INDEX. Eefeieuces are to Sections. NEW 3KRSKY— Continued. statute of, requires consent of local authorities, 28, n. prescribes time within which railway must be built, 47, n. statute of, forbidding parallel lines, 64, n. the telegraph held to be an additional burden on the soil, 128. same ruling made as to the telephone, 128. statute of, as to construction of elevated railways, 152, n. statute of, as to street paving and repairs, 242, n. p. 406. railway tracks assessable for cost of constructing sewers, 278. rule in, that pedestrians must look and listen before crossing track, 312. rule in, as to driving across tracks without looking and listening, 315, n. traveling in, on Sunday held not to be contributory negligence, 366. burden of proof in, as to contributory negligence, is on defendant, 381. NEWSBOYS. when not considered passengers, 326, 365. NEW SERVITUDE. See Streets, Abutting Ownees, Elevated Railways, Stbbet Rail- ways, iNTEBimbAN Railways. NEW YORK. street railway clause in constitution construed, 1, n. construction of statute as to legislative consent, 3, n. constitution of, requires consent of abutting owners or approval of commissioners, 18. consent of owners must be obtained before appointment of commis- sioners, 18, n. application for commissioners may be verified by single petitioner, 19, n. consent need not be under seal, 19, n. consents — the New York law, 21. when application for appointment of commissioners will not fall, 21. what must be shown in order to give commissioners jurisdiction, 21. appointment of commissioners by supreme court, 21. confirmation of their report, 21. consent of the owners to coincident routes, 21. statute of, requires consent of local authorities, 28, n. constitution of, requires consent of local authorities, 28, n. such consent not necessary before constitutional amendment, 3. appointment of appraisers may be resisted on ground of forfeiture of corporate franchise, 44. time within which road must be commenced and completed, 47, n. diligence required in obtaining abutters' consents, 48. the fee of the street is in the municipality, 81. as to abutter's rights, makes no distinction between commercial rail- roads and surface street railways, 81, i]*DEX. 885 Beferences are to Sectiong. NEW YORK— Continued. abutting owners not entitled to compensation for use of street by street railway, 82. by statute, authorizes joint use of tracks a distance of one thousand feet, 115, n. p. 212. compensation to be determined by commissioners, 115, n. p. 212. the telephone held to be an additional burden on the soil, 128. the same ruling made as to the telegraph, 128. and electric light companies, 128. railway-telephone litigation in, 135, n. pp. 248, 249, 250, 251, 252, 253, 254, 255. system of elevated railroads in, 152, et seq. statutes of, relating to elevated railroads, 152, 152, n. statute of, requiring that policemen and firemen be carried free held unconstitutional, 233, n. 51, p. 384. by statute, regulates removal of snow from tracks, 239. requires bridges to be kept In repair, 242, n. 3, p. 406. statute of, as to street paving and repairs, 242, n. p. 406. franchise is taxable as real estate in, 271, n. valuation of capital stock in, for purposes of taxation, 275. railway tracks assessable for cost of constructing sewers, 278. but not for constructing a cross street, 278. permits the consolidation of street railways, 429. rule In, that pedestrians must look and listen before crossing track, 312. rule In, as to driving across track without looking or listening, 315. rule in, as to degree of care required of carrier, 328. traveling on Sunday held not to be contributory negligence, 366. burden of proof, as to contributory negligence. Is on plaintiff, 381. originated the rule of Imputing negligence of parents to their chil- dren, 389. stockholders in, are not liable for claims sounding In tort, 405. when consent of board of highway commissioners to construction of railway In, is not void, 435. statute of, as to connection and intersections of railroads, 474. NIGHT. requiring cars to be run during, 234, n. headlight should be used during, 299. NOISE. may Impair abutter's rights, 80. NON-ABUTTING PROPERTY. See Elevated Railways. ITON SUI JURIS. when Infants are, 385. when they are not, 385. whan it is a question of fact, 385. 886 IITDEX. References are to Sections. NON-USER. See FoEFEiTUEE, Abandonment. as a ground for forfeiting the franchise, 44, 45, 46, n.; 51, 51, n. in Ontario, by statute, 47, n. effect of a partial exercise of the franchise, 51. NORTH CAROLINA. statute of, requires consent of local authorities, 28, n. burden of proof in, as to contributory negligence, is on plaintiff, 381. NORTH DAKOTA. constitution of, requires consent of local authorities, 28, n. NOTICE. See Negligence, Contribxjtoby Negligence, Regulations, Steeet Paving and Repairs, Masteb and Seevant. actual knowledge not essential to defendant's liability for defects in track, 410, n. to servant, of danger, 413, 414, 415. NOTICE TO PASSENGERS. See Regulations. NUISANCE. See Remedies. Electricity. what is a, 11, 11, n.;12, n.; 9, n.; 57, 91, n. p. 165. what is not a, 12, n. ; 3, n. ; 56, n. remedy for maintaining, 57, 59. OBSCENE LANGUAGE. See Indecent Language. OBSTRUCTIONS. in right of way, 453. OBSTRUCTIONS IN THE STREET. liability of railway company for Injuries caused by, 290. OHIO. statute of, requires consent of abutting owners, 12, 18, n. franchise in, must be awarded to best bidder, 15, n. statute of, requires consent of local authorities, 28, n. construction of statutes authorizing extension of tracks, 63. by statute, permits new company to occupy existing track for one- eighth of its own mileage, 115, n. p. 212. In certain cities authorizes appropriation of joint use, 115, n. p. 212. damages to mains by electrolysis, 135, n. p. 364. measure of compensation in, for joint use of tracks, 116, n. p. 216. railway-telephone litigation in, 135, n. pp. 242, 243, 244, 245, 246, 247, 248. the telegraph held to be an additional burden on the soil, 128. same ruling as to the telephone, 128. INDEX. 887 References are to Sections. OHIO — Continued. power of municipalities in, to prescribe qualifications of motormen and conductors, 225, n. p. 367. statute of, as to street paving and repairs, 242, n. p. 406. rule in, that pedestrians must look and listen before crossing tracks, 312. rule in, as to driving across tracks vyitbout looking and listening, 315, n. rule In, as to degree of care required of passenger, 328. burden of proof in, as to contributory negligence, when on defendant, 381. stockholders are liable in, for claims sounding in tort, 405. statute of, as to traffic agreements and fares, 437. liability to public authorities for unauthorized use of highway, 444. statute of, as to traffic agreements, 474. See INTEBTJKBAN RAILWAYS. ONTARIO. forfeiture of franchise by statute in, 47, n. p. 89. operation of street cars on Sunday a work of necessity, 74. OPERATION OF RAILWAY. See Negligence, Elevated Railways, Street Railways, Intee- URBAN Railways. may be suspended during public improvements, 42. cannot be for mere private enterprise, 42. delay caused by defective grading, not a ground of forfeiture, 51, n. failure to operate on two blocks for four years, 51, n. operation of one car a day "in times of snowfall," not an abandon- ment, 51, n. delay in, for five days, caused by strike, not a ground of forfeiture, 52, n. how duty of, enforced, 65. what motive power may be used, 67. silence as to motive power, 68. change of motive power, 69. operating road on Sunday, 74. as affecting abutter's rights, 97. emission of fire by, 97. obstructing natural flow of water by snow plow, 98. OPINION EVIDENCE. See Evidence. OPTIONAL ROUTES, power to grant, 61. ORDINANCES. See Municipal Coepobations, Powers, Police Powers, Chaetee, Franchise, Fares, Estoppel, Renewal of Franchise, Street Paving and Repairs, Inteeueban Railways. passed without authority may be validated by statute, 15, 45, n. 888 INDEX. References are to Sections. OKDINANCES— Continued. must substantially follow petition or consent, 23. repeal of, cannot be enjoined, 40, n. when notice to company Is a necessary prerequisite, 40, n. 27. who charged with notice of, 228, and note. may provide for ipso facto forfeiture, 46. violation of provisions of, as a ground of forfeiture, 52. power of municipality by, to determine location, 55. grant of franchise by, void unless route previously established, 55. passed in pursuance of express powers, 223. passed in pursuance of implied power, 224. presumption in favor of validity of, 224. power of courts to review, 224. limiting speed, violation of, as evidence of negligence, 320, 359. See Speed, Negligence. forbidding passengers to leave by the front platform, 333, n. forbidding that women and children be permitted to enter or leave car by front platform, 353. prescribing where cars may be stopped, 354, 357. pleading existence of, in negligence cases, 359. regulation by, 451. ORDINARY CARE. See Care. OREGON. franchise in, valid without consent of local authorities, 3, n. p. 6. rule in, that pedestrians must look and listen before crossing tracks, 312. doctrine of comparative negligence in, 379. burden of proof in, as to contributory negligence, is on defendant, 381. OVERHEAD WIRES. See Elbctkic Railways. OVERLOADING CAR. See Negligence. necessity for public regulations concerning, 289. PACKAGES. See Baskets, Contributory Negligence. passengers encumbered with, 329, n. 44, p. 538; 337; 341, n. 135, p. 558; 342, n. 141, p. 560; 349. PAIN. exclamations of, as evidence, 397. temporary fear and nervous excitement, when a cause of action, 408. physical pain as an element of damages, 409. mental anguish, when an element of damages, 409. sorrow not a ground of recovery or an element of damages, 409. PARALLEL LINES. construction of statutes forbidding, 64. in Pennsylvania, may be consolidated, 64, n, INDEX. 889 References are to Sections. PARALLEL 'LIKES— Continued. in Connecticut, necessity for such roads must be shown, 64, n. prohibition against lease of, 424. consolidation of, 429. PARALYSIS. when resulting from personal injuries, defendant may be held liable for, 409. PARENT AND CHILD. See Paeents, Children. anxiety of parent for his child's safety not an element of damages, 408, n. PARENTS. their duty to protect their children from danger, 387. what constitutes a failure to discharge that duty, 387. not bound to keep their children constantly under their eyes, 387. presumptions arising from presence of young child upon the street, 387. poverty as affecting question of parents' negligence, 388. negligence of, not generally imputed to their children, 389. states in which the opposite rule is followed, 389. negligence of, as affecting their right to recover for injuries to child, 390. as a bar to an action by the infant's personal representative, 391. PARKS. See Public Pabks and Squares. PARTIES. See Pleading and Practice, Joint Tort-Feasors. to actions to declare a forfeiture, 44. to suits by abutters, to enjoin, 101. to condemnation proceedings in New York, 167. to actions for impairing street easements in New York, 192. the release of one of two joint tort-feasors discharges all, 406. PARTNER. power of, to consent for co-partnership property, 156, n. PASSENGERS. See Negligence, Conteibutort Negligence, Care, Children, Newsboys, Trespassers, Conductors, Carriers, Intoxication, Interurban Railways. defined, 326. who entitled to be considered a passenger, 326. persons who enter the car merely to place some one else upon it, 349. on elevated train, 216. entering or leaving train while in motion, 216. riding on platform of, 216, 890 INDEX. Befereuces are to Sections. PASSENGERS— Continuea. standing in car of, 216. removal of passengers from stations or cars, 217. false imprisonment, 217. leaving car by front platform in violation of law, 227. knowledge of public regulations presumed, 228. effect of accepting wrong transfer ticket by, 237. of detaching coupon tickets, 237. smoking in car in violation of ordinance, 238. street railways are common carriers of, 1, 324. and may be of merchandise, 324. discrimination on account of color, 325. obligations of carrier to its passengers considered generally, 327. degree of care required of carrier, 328, 462. the rule as formulated by the courts of different states, 328. degree of care due to young and infirm passengers, 330. diligence required of passengers to avoid injury, 329, 466. passengers must observe the reasonable rules and regulations of the carrier, 329, 354, 356, 357, 358. contributory negligence of — leaving car by front platform, 333, 352. boarding car while it is in motion, 336, 464. leaving car while it is in motion, 337, 464. stepping off backwards, 349, n. 170. riding on front platform, 338, 467. riding on rear platform, 339, 355, 467. riding on driving-bar or dash-board, 340. sitting on platform with knees projecting beyond car, 340. riding on step or foot-board, 341, 355. riding on bumper, 340, n. 128. standing in car, 342. duty of the passenger to make use of supports, 342. boarding or leaving car by front platform, 333, 343, 352. protruding head, arm, or hand from window, 344. resting arm on window-sill, 331. going to rear platform while car is in motion, 345. taking place on lower step while car is slowing up, 345. alighting from or boarding car from between parallel tracks, 346, 346, n. entering or leaving car while encumbered with burdens, 330, n. 47; 337, 348. attempting to alight at a point where cars are not permitted to stop, 350. leaving by front platform when car is crowded, 352. regulations forbidding women or children to enter or leave moving car, 353. knowledge of municipal regulations presumed, 354. depositing baskets and small packages on floor of car, 358. INDEX. 891 References are to Sections. PASSENGERS— Continued. contributory negligence of — attempting to board car in dangerous proximity to telegrapli poles or other obstructions, 360. presumptions arising from injury to passenger, 361, 462. negligence of carrier is not imputed to its passengers, 362. may maintain joint action against joint tort-feasors, 363. not required to tender exact amount of fare, 364. may tender genuine coin, although worn smooth by use, 364. deiKJsit in box of excessive amount by mistake, 364. tender of five dollars in gold, 364. tender of five dollar bill unreasonable, 364, n. duty of, to deliver up ticket on demand, 364. free passengers, children, newsboys and trespassers, 326, 365, 371. traveling on Sunday, where considered contributory negligence, 366. generally not so considered 366. authority of carrier's servants to remove passengers from cars, 367, removal of sick passengers, 368. ejecting disorderly passengers, 369. expulsion of intoxicated passengers, 370. expulsion of persons while car is in motion, 371. expulsion of small child while car is in motion, 371. liability of carrier for excessive violence in expelling passengers, 372. for malicious, criminal and reckless acts of its servants, 372. false arrest and malicious prosecution of passengers, 373. injury of one passenger by others, 374. nature of passenger's action for damages, 375. assault and battery of, by carrier's servants, 372. after passenger has left car, 372, 372, n. assault and battery by motorman or driver of team, 372, n. when exemplary damages may be allowed for injury of, 410. is not a fellow-servant of driver of car, although assisting him, 412. duty to provide safe place for them to alight, 463. entering or leaving interurban cars while in motion, 464. injuries to, before boarding and after leaving car, 465. protruding arm or hand from window, 466. PASSENGER LINE USED FOR FREIGHT PURPOSES. See Intebtjeban Railways. when unlawful, 9. PAVING. See Stbeet Paving and Repaibs. PAY-AS-YOU-ENTER OARS. how their use affects rule as to entering and leaving cars, 352. PAYMENT. See Compensation, Fabe. Beferences aie to Sections. PEDESTRIANS. See INTEBUBBAN RAILWAYS. walking along the track from which the snow has been cleared, 303. . must look and listen before crossing tracks, 311, 312. standing upon or walking along the track, 313. PENALTY.. See FORFKITUBE. PENNSYLVANIA. public nuisances in, not abated by force, 12, n. constitution of, requires consent of local authorities, 28, n. statute of, requires consent of local authorities, 28, n. time within which road must be commenced and completed, 47, n. local authorities may extend or curtail time, 47, n. parallel lines may be consolidated, 64, n. gives city councils unlimited authority as to motive power, 67, n. operation of street cars on Sunday, a work of necessity, 74, 366. by statute, permits joint use of existing track a distance of 500 feet, 115, n. p. 213. compensation to be fixed by two appraisers appointed by the court, 115, n. p. 213. has system of elevated railroads, 152. appropriation of railroad yards for, 165. statute of, relating to elevated railroads in, 152, n. elevated railway an additional servitude, 186, n. 98, p. 302. taxation in, of dividends on capital stock, 274. rule in, that pedestrians must stop, look and listen before crossing steam railroad, 301, 315. that pedestrians must look and listen before crossing street rail- way track, 312. rule in, as to driving across tracks without looking, 315, n. by statute, forbids discrimination among passengers on account of color, 325. rule in, as to degree of care required of carrier, 328. traveling on Sunday held not to be contributory negligence, 366. burden of proof in, as to contributory negligence, is on defendant, 381. stockholders In, are liable for claims sounding in tort, 405. action by employe in, for libel, 417. permits the consolidation of street railways, 429. requirements as to consents in, where railway runs through several municipalities, 435. PERIL. See Imminent Pebil, Contbibutoby Nkqligknce. PERPETUITY. See Chabter. grants in, 17, 17, n. power of municipal corporations to make grants in, 17, n. when Intention to confer a right in, cannot ba lnf«rr«d, 17, n. INDEX. 893 Befereuces are to Sections. PERPETUITY— ConiimiefZ. municipal grants of street railway franchises must be strictly con- strued, 17, n. power to grant easements in streets in, must be conferred in express words, 17, n. duration of grants, 17, n. PERSONAL REPRESENTATIVE. of Infant, when negligence of parents may be imputed to, 391. PETITION. See Pleading and Peactice, Consent of Abtjttinq Owners. PHILADELPHIA. has system combining subsurface with elevated railroads, 152. ordinance of, requiring cars to be numbered and licensed sustained, 239. PHYSICAL DISABILITIES. See Disabilities, Physical. PHYSICAL EXAMINATION. See Evidence. PHYSICIAN. may testify as to exclamations of pain, 397. examination of injured person by, 407. PLACARDS. See Regulations, Notice, Plateoem:. PLANS. See Elevated Railways. PLATFORM. See Passengers, Cars and Their Appliances, Negligence, Con- tributory Negligence. of cars on elevated roads, statutory regulation as to gates on, 215. failure to enclose and guard, 333. riding on front platform, 338, 467. how warning against, must be posted under New York statute, 338, n. riding on rear platform, 339, 467. sitting on platform steps with knees projecting beyond side of car, 340. sitting on driving-bar or dash-board, 340. standing with foot in hand-rod of the dash-rail, 340. boarding or leaving car by front platform, 343. going to rear platform while car is in motion, 345, 349. permitting passengers to ride on platform, 351. negligence to permit young children to ride there, 351. permitting passengers to leave by front platform, 352. permitting platform to become crowded, 355. tegulations prohibiting passengers from boarding or leaving car by front platform, 356. regulations as to riding on front platform, 357. riding on platform of Interurban car, 487. 894 INBEX. Beferences are to Sections. PLATFORMS OF STATIONS. See Stations. PLEADING AND PRACTICE. See Evidence, Vaeiance, Pabties, Remedies, Action, Injxjnction. in actions to declare a forfeiture, 44. in condemnation proceedings in New York, 166, 169. variance between pleading and proof, 353. averring violation of an ordinance is not an averment of its existence, 359. right to maintain single action against joint tort-feasors, 363. nature of the passenger's action for personal injuries, 375. variance between pleading and proof, 375, n.; 404. burden of proof as to negligence of the injured person, 381. pleading injured person's freedom from negligence, 381. physical inspection, examination and tests of injured person, 407. permitting jury to witness experiments at place of accident. 407. POLiBS AND WIRES. See Electeic Railways, Telegbaph, Telephone, Police Powee, Abutting Ownees, Constexjction and Equipment, Wiebs. when right to use wooden poles not revocable, 40, n. 25. passenger injured by pole between tracks, 331, n. 58, p. 541; 346, n. 155, p. 564. compensation for joint use of, 121. right to use overhead wires, 127. POLICE OFFICERS. See Fabes. enjoined from tearing up track, 49, n. when carrier responsible for acts of, 372, n. p. 601. POLICE POWER. See Joint Use of Teacks, Municipal Coepobations, State, Chabtee, POWEBS. cannot be renounced, 4. its general scope, 220. as applied to street railways, 220. general illustrations of, 220, n. its limitations, 220, 221. of the state, 221. to compel the removal of wires from streets, 131. of municipal authorities, 222. railway corporations have no immunity from police control, 222. but their franchises cannot be destroyed, 222. or their business interfered with arbitrarily, 222. ordinances passed in pursuance of express powers, 223. are valid unless unconstitutional, 223. regulations established by virtue of implied powers, 224. presumption in favor of their validity, 224. * power of courts to review, 224. INDEX. 895 Beferences are to Sections. POLICE POWER— Continued. ordinances requiring driver and conductor on each car, 225. municipalities in Ohio cannot prescribe qualifications of motormeu and conductors, 226, n. p. 367. conflict of authority as to validity of such regulations, 225. regulations prescribing degree of care in operating cars, 226. regulations by statute as to mode of entering or leaving cars, 227. passenger's knowledge of public regulations presumed, 228. to regulate fares by statute or ordinance, 232, 233. municipalities may regulate rate of speed, 229. places ■where cars may be stopped, 229. may require that tracks be cleaned and sprinkled, 230. extent of power of, to regulate in matters of equipment, 231. may require cars to be run during certain hours, 234. may limit number of passengers to be carried on each car, 234. may regulate use of snow plows, 235. ordinances of, requiring quarterly reports, 236. may prohibit smoking on cars, 238. may prohibit use of salt on tracks, 239. may regulate how and when cars may approach each other, 239. may prohibit use of sand on tracks, 230, 239. may compel removal of ice and snow, 239. continuous ringing of bell held unreasonable, 239, n. of municipal corporations to exact license fees, 280. separation of colored and white passengers, held reasonable, 325. POLICE REGULATIONS. See Regulations, Police Poweb. POVERTY. of parents, as affecting question of their negligence, 388. POWER. See Motive Powee. delegation of power to grant franchises, 56. to borrow money for construction of road Implies authority to mort- gage, 423. POWERS. See Municipal Boards, Municipal Officees, City Council, powers which are usually delegated to local authorities, 13. the power to impose conditions may be implied, 13, n. rules for determining, of private corporations, 33, 34. legislative or discretionary, not subject to judicial control, 40. when not exhausted by one exercise of, 108. PRACTICE. See Pleading and Peactice. PRECAUTIONS ADOPTED AFTER ACCIDENT. cannot be proved as an admission of the defendant, 402. INDEX. Beferences are to Sections. PREGNANT WOMEN. taking passage on street car, 378, n. frightened by runaway horse, 408, n. damages for injury to, 409. PREPONDERANCE OF NEGLIGENCE. See CoMPABATivE Negligence. PRESUMPTIONS. knowledge of public regulations presumed, 228. in favor of the right to exact license fees, 281, 282. the law does not presume that a street railway obstructs ordinary travel, 292. when presumption of negligence does not arise from collisions with vehicles, 323. from team running away, 322. from passenger slipping, 329, n. 44, p. 538. arising from injury to passengers, 361. arising from fire, 361, n. 251, p. 588. arising from the ordinary habits, conduct and motives of men, 381. PRINCIPAL AND AGENT. See Respondeat Supeeioe. responsibility of child for negligence of parent, 389. of passenger for carrier's negligence, 362. of wife for husband's negligence, 392. of person riding in private vehicle for driver's negligence, 393. liability of company for acts of its contractor, 394. PRIOR NEGLIGENCE OF PLAINTIFF. See CoNTEiBUTOEY Negligence. PRIORITY. when priority in time gives priority of right, 122. PRIVACY. of dwelling, interference with by elevated railway, 190. PRIVATE CORPORATION. See CoBPOBATioN, Private. PRIVATE NUISANCE. See Nuisance. PRIVATE RAILROADS. use of street for, unlawful, 8. PRIVATE VEHICLE. negligence of driver of. See Dei\eb, Defvino. PRIVILEGED COMMUNICATIONS. See Declaeations. reports of accidents made to company by conductor are, 399. PRIVITY IN NEGLIGENCE. See Ihputed Contributoby Nkgligenck INDEX. 897 Beferences are to Sections. PROCESS. service of, on interurban railway, 445, n. 80. PROFANITY. as tlie ground for tlie removal of a passenger, 369. PROFITS. apprehended loss of, no ground of objection to grant of second fran- chise, 109. unless cars of second grantee impair access to cars of original company, 109, n. PROOF. See Evidence, Variance, Pleading and Peactice. PROPERTY. embraces motive power, 120. how classified for purposes of taxation, 271, 272, 273, 274. voluntary sale of, by railroad and railway corporations, 422. right to levy upon lots upon which company's tracks are laid, 422, n. mortgage of the franchise and other railway property, 423. power to lease the franchise and other property, 424. control of, as affecting liability in negligence cases, 425. failure to keep tracks in repair, 426. judicial sale of railway property, what passes by, 427. Hens of contractors, mechanics, laborers and material-men, 428. how the property of constituent companies is affected by consolida- tion, 429. PROPOSALS. PROSECUTION. See Bids Foe Franchise. See Malicious Prosecution. PROVOCATION. as a defense to a passenger's action for damages, 372. PROXIMATE CAUSE. negligence of defendant occurring subsequent to that of injured per- son, 380, 305, n. 106, p. 493; 350. criticism of the application of this doctrine by Mr. Beach, 380, n. p. 618. by the supreme court of New York, 380, n. p. 618. negligence of parents contributing to the injuries of their children, 389, 390, 391. Injuring plaintiff while attempting to extricate him from danger, 384. negligence of driver of private vehicle contributing to injury of a fellow passenger, 393. intoxication as a cause of injury, 395. fright and its consequences, 408. injuries resulting in epileptic spasms, 409. miscarriage caused by nervous shock and physical injuries, 409. 57 898 INDEX. Befereuces are to Sections. PROXIMATE CAUSE— Continued. development of cancer in injured person, 409. injuries resulting from being compelled to walk after expulsion from car, 409. PUBLIC. rights of in streets, 76. PUBLIC AUTHORITIES. may consent to relocation of tracks, 62. consent of, 434, 435. conditions attached by, 436. PUBLIC NUISANCE. See NtnsANCB. street railway constructed without authority of law Is, 11. PUBLIC OFFICERS. power of, to determine route cannot be delegated, 55. cannot defeat franchise by failing to perform ministerial duty, 60. PUBLIC PARKS AND SQUARES. when street railway cannot be laid in, 7. duty of company to maintain safe premises at parks, 461. railway company not liable for negligence of lessees at parks, 461. PUBLIC WORKS. suspension of company's business pending local improvements, 42. PUNITIVE DAMAGES. See Exemplary Damages, Damages. words of provocation may be considered in mitigation of, 410, n. PURCHASE OP PROPERTY. See Propebtt. of railway company by municipality, ^3, n. PURCHASER. rights and remedies of, in elevated railroad cases, 201. PRUDENCE. 1 See Cabe, Negligence, Conteibtjtoey Negligence. QUARTERLY REPORTS. may be required of railway companies, 236. QUO WARRANTO. proper remedy for usurpation of franchise, 10, n. to enforce forfeiture of franchise, 44, 49, 51. for departing from designated line, 57. when this remedy will not lie, 44, n. 40, p. 81. RACING. as evidence of negligence, 359, n. p. 582. RAILROADS. See INTEEUBBAN RAILWAYS, COMMEECIAL RATLBOAD. classification of, 1, n. INDEX. 899 References are to Sections. UAILROADS— Continued. commercial railroad an additional burden on the soil, 78, 440. cases pro and con on this point, 78, n. right-of-way for, can be acquired only by purchase or under power of eminent domain, 78. steam, may be crossed by street railway, 109, n. Joint use of, may be appropriated, 118. crossing of, may be acquired under power of eminent domain, 118. regulation of, by statute and ordinance, 220, n. p. 359. interurban railways distinguished from street and commercial rail- roads, 431. RAILROAD CROSSING. right-of-way of train at, is superior to that of street car, 301. duty to maintain flag-man at, 301. when required by public regulation, 301. care required of driver on approaching, 301. validity of ordinance requiring employment of watchman at, 301, n. p. 482. duty of driver of street car to look and listen, 301. flag-man is not the agent of street railway company, 301. construction of ordinance requiring street car conductors to cross in advance of their cars, 301. RAILS. See Teacks, Constedction and Equipment, Remedies. right of company to use T rails, 5. unauthorized use of T rails as a ground of forfeiture, 52, n. what kind of, may be used, 72. statutes prescribing the kind which may be used, 72, n. of street railways are real estate, 271, 427. RAILWAY-TELEPHONE LITIGATION. See Electeic Railways. RAPID TRANSIT ACT OF NEW YORK. See Elevated Railways. routes cannot be located under, without consent of abutters or approval of commissioners, 55, n. RATES OF FARE. See Faees. reasonableness of, prescribed by statute or ordinance, 233, and note. RATIFICATION. See Statute. by master, of tortious act of servant, 410. REAL ESTATE. of street railways, what taxable as, 271. tracks are, 271, 427. 900 INDEX. Beferences are to Sections. RECEIVER. See Franchise. has no power to accept new privileges and franchises, 31, n.; 427. when not required to pay out moneys for street improvements, 242, n. 3, p. 404; 427. not subject to arrest on ground that operation of railway is a nuisance, 427. when proper party defendant in actions for negligence, 427. of railway property, when appointed in case of fraudulent consolida- tion, 429. RECONSTRUCTING STREETS. meaning of, in city ordinances, 245. REGULATIONS. See State, MuNicrPAi, Coepoeations, Legislatuee, Police Power, Ordinances, Mandamus, Fares. requiring wires to be placed under ground, 131. by virtue of the police power of the state, 220, 221. by virtue of the police power of municipalities, 222. express power of municipalities to regulate, 223. implied police powers of municipalities, 224. power of municipality to require employment of conductors, 225. to prescribe degree of care in operating cars, 226. to regulate speed and stopping places, 229, 354, 359. to require that tracks be cleaned and sprinkled, 230. to determine when cars shall be run, 234. to regulate the use of snow-plows, 235. to require the making of quarterly reports, 236. to prohibit smoking on cars, 238. to prohibit the use of salt and sand on tracks, 230, 239. to require passenger cars to be numbered, 239. to require that cars be kept a safe distance apart, 239. classifying passengers on the basis of race or color, 325. one may be a passenger although entering car in violation of carrier's rules, 326. riding on front platform in violation of rule, 338. riding on step or footboard in violation of rule, 341. boarding or leaving car by front platform in violation of rule, 343. by ordinance, against permitting women or children to enter or leave a moving car, 353. by ordinance, as to place for stopping cars, 354. by carrier, as to manner of entering, occupying or leaving car, 356. as to size and character of packages which may be carried, 358. requiring an extra charge for large parcels, 358. as to manner of rectifying a mistake in payment of fare, 364. requiring tickets to be delivered up en route, 364. requiring that intoxicated persons be excluded from front plat- form, 370. 371. of electric railways, requiring that signals be given, 432. INDEX. 901 Keferences are to Sections. RELEASE. See Chabtee. of charter obligations, 41. as to paving, when fares are reduced, 41, n. as to fares, when motive-power is changed, 41, n. of one of two or more joint tort-feasors discharges all, 406. RELOCATION OF TRACKS. may be authorized by public authorities, 62. when company may be compelled to relocate its tracks, 62. REMAINDER-MEN. rights and remedies of, in elevated railway cases, 202. REMEDIES. See Parties, Joint Tobt-Peasoes. abatement of nuisance in criminal proceeding, 57. to compel public officials to locate route, 60. action at law. for impairment of abutter's rights, 99, 102, 189, 194. by shareholder, against directors, 429. bill in eauity. not the proper proceeding by which to declare forfeiture of fran- chise, 49. ejectment. at suit of municipality, 57. force. right of public authorities to resort to, 12, n.; 49, n; 57, 59, n. forcible entry and detainer. when a proper remedy for abutters, 99. indictment. for imlawfully obstructing highway, 12 n.; 57, 44, 56, n. to compel construction of railway according to charter, 59. for failing to repair, 260. injunction. to prevent unauthorized construction and operation, at suit of private person, 12. failure to secure consent, a ground for, 12. suit not maintainable by taxpayer or citizen, 24. at suit of public officers, 12. to prevent attempted withdrawal of franchise, 5, 40. to prevent unlawful interference with operation of railway, 5, 49. repeal of ordinance cannot be enjoined, 40. to prevent cutting wires, 42, n. to preivent threatened acts in name of dead corporation, 44. by shareholder, to protect his rights, 429. See Injunction. mandamus. to compel company to construct and operate, 59. to compel company to pave, 261. See Mandamus. 902 INDEX. References are to Sections. ■ REMEDIES — Continued. quo warranto. to enforce forfeiture of franchise, 44, 49. to challenge the legality of particular location, 57. bond, action on for failure to repair, 249. REMEDY OP DEFECT. See Pbecautions Adopted AriER Accident. REMISSION. See FOEFEITUEE. REMOTE NEGLIGENCE. ■ See Comparative Negligence, Contributory Negligence, Proximate Cause. RENEWAL OP PRANCHISE. See Franchise, Charter. when amendatory or supplemental acts or ordinances do not have effect of, 43. term may be extended before expiration of original grant, 43. REPAIR OF STREETS. See Street Paving and Repairs. when additional burdens as to, cannot be imposed, 5. cars may be stopped during, 42. REPAYING. See Street Paving and Repairs. REPEAL. See Charter, Statute. power of legislature to revoke charter, 39. power of municipal authorities to withdraw franchise, 40. of ordinance, cannot be enjoined, 40, n. by implication, not favored, 40. REPORTS. See Quarterly Reports. RES GESTAE. declarations admitted as parts of, 398, 399, 400. when exclamations of pain may be admitted as parts of, 397. RES IPSA LOQUITUR. See Evidence. doctrine of, applied where horse stepped on track and was shocked to death, 133, n. doctrine of, does not apply to electricity, 133, n. p. 241. doctrine of, as applied to passenger, 361, n.; 462. RESPONDEAT SUPERIOR. See Master and Servant, Principal and Agent. when railway company responsible for negligence of its contractor, 394. INDEX. 903 Seferences are to Sections. RESPONDENT SVFERIOR— Continued. Injury of passenger by car driver after he has been relieved from duty, 396. doctrine of, applied where passenger is injured while assisting car- rier's servants, 412. RETAINING WALL. See Damages. REVOCATION OP CONSENT. See Consent of Abutting Ownees, Abutting Owners. RHODE ISLAND. ordinance forbidding cars on same track to approach within 30 feet upheld, 239. dynamos, switchboards, etc., held to be personalty for purposes of taxation, 272, n. p. 435. traveling on Sunday held not to be contributory negligence, 366. burden of proof in, as to contributory negligence, is on defendant, 381. RIDING ON PLATFORM. See Passengers, Contributory Negligence. of elevated railway cars, 216. necessity of public regulations concerning, 289. of street railway cars, 338, 339. of interurban cars, 467. RIDING ON STEP OR FOOT-BOARD. See Passengers. necessity of public regulations concerning, 289. when negligent, 340, 341. RIGHT-OF-WAY. taxable as real estate, 273. when assessable for street improvements, 275. is real estate, 427. RIOT. among passengers, when carrier responsible for, 374. RISKS. assumption of, 458. See Negligence, Conthibutoby Negligence. ROADS. See Streets. public road defined, 75. legislature has paramount authority over, 75. this power may be delegated to local authorities, 75. when cannot be taken for street railways, 7, n. ROUTE. who may determine, 55. must be established before franchise is granted, 55. what steps must be taken before location of, under New York Rapid Transit Act, 55, n. 904 INDEX. References are to Sections. ROUTE — Continued. departure from prescribed route, 56, n. remedy of company to compel public officials to locate, 60. RULES. See Regulations. RUNAWAY HORSES. injury to traveler by runaway team d«tached temporarily from car, 322. no presumption of negligence in such a case, 322. RUNNING-BOARD. See FooT-BoAED. SAFETY GATES. See Geadb Cbossings. SALE. See Pbopeett. SALT. the use of, on tracks may be prohibited, 239. use of, to melt snow on track, 295. SAND. the use of, on tracks may be prohibited, 239. accidents caused thereby, 295. failure to use, 413, n. 12. SECOND AWARD. See Elevated Railways. SERVANT. See Master and Seevant. who is, 411. when relation of, exists, 411. when master is not liable for negligent act of, 411. test of master's liability, 411, n. risks not assumed by, 415. criminal liability of, for cruelty to animals, 418. wages deposited by, to secure the faithful discharge of his duties, 421. SERVICES. loss of, as a ground for damages, 391, 409. of wife, husband's right to recover for loss of, 409, n. p. 664. SEWER. suspending operation of railway during construction of, 42, n. cost of, assessable on railway tracks, 278. SHAREHOLDERS. See Stockholders. SIDE-TRACKS. See Switches, Tracks. must be located and laid according to direction of public authorities, 56. INDEX. 905 References are to Sections. SIDEWALK. laying track across. 56 n. p. 110. constructing track near, 91, n. pp. 167, 169, 170. SIGHT. one whose sight is impaired must he more cautious on that account, 386. SIGNAL. See Gong ob Bell, Head-Lights, Signal Lights. duty to stop when given, 347. SIGNAL LIGHTS. necessity of public regulations governing use ot, 289. failure to use is negligence, 299. SIMULTANEOUS GRANTS. neither has priority over the other, 123. courts cannot compel grantees to join in work of construction, 123. SITUS. for purposes of taxation, 274. SKILL. See Cabe, Negligence, Conteibiitoet Negligence. SLANDER. , of servant by master, 417. SLEEPERS. of street railways, taxable as real property, 271. SLEIGH. riding on foot-board or fender of, 341 n. p. 558. SLIGHT NEGLIGENCE. See Compabative Negligence, Conteibutoey Negligence, Peoxi- mate Caitse. SMOKE. may impair abutter's rights, 80, 101, n. 52, p. 184. from elevated railway, as an element of damages, 190. SMOKING. may be prohibited on street cars, 238. SNOW. removal of, from tracks, 98, 293. remedy of abutter for unlawful disposition of, 98. regulations concernins removal of, from tracks, 230, 235. removal of, regulated in Massachusetts and New York by statute, 239. depositing on roadway, 294. use of salt to melt snow on track. 295. depositing, near track is negligence, 331. liability of lessee, 425, n. 19. SNOW-PLOWS. use of. to remove snow from tracks, 98, 294. when such use may be enjoined, 98. 906 INDEX, References are to Sections. SNOW-PLOWS— CoMHn«etf. regulation of the use of, 235. use of, cannot be considered a nuisance, 294. SORROW. not an element of damage, 409. SOUTH CAROLINA. burden of proof in, as to contributory negligence, is on defendant, 381. SOUTH DAKOTA. constitution of, requires consent of local authorities, 28, n. statute of, requires consent of local authorities, 28 n. SOVEREIGN AUTHORITY. See State. SPECIAL ACT. See Statute, Constittjtional Law. SPECIFIC PERFORMANCE. action of, will lie to compel performance of traffic agreements, 474. SPEED. high rate of, may impair abutter's rights, 80. regulation of, by statute and ordinance, 229. rate of, at which horse-cars may be driven, 303. at which other street cars may be propelled, 303. at what places it should be reduced, 319. proper rate of, 319. different rates of, as fixed by ordinance in various cities, 319. liability as affected by ordinances limiting, 320, 359. rate of speed of interurban cars, 469. SPRINKLING. See Tracks. SQUARES. See Public Parks and Squares. STABLES. connecting with main track, 56, n. p. 110. STAIR-WAYS. See Elevated Railways. STANDING IN CAR. of elevated train, 216. of surface railway cars, 342. STATE. See Statute, Charter, Constitutional Law. may question regularity of corporate organization, 10. may waive usurpation of franchise, 10. may waive forfeiture of charter rights, 50. police power of, 221. to require glandered horses to be killed, 222, n. to regulate mode of entering or leaving cars, 227. to regulate fares, 232, 233. to require that passengers be furnished with tickets or checks, 239. to regulate removal of snow and ice from tracks, 239. INDEX. 907 Beferences are to Sections. STATION. connecting with main track, 56, n. duty of the carrier to light, 334. duty of the carrier to keep In safe condition, 334. STATUTE. See State, Constitutional Law, Police Power, Regulations, Street Railways, Inteeueban Railways. may validate ordinance passed without authority, 15, 45, n. when not in Ohio, 15, n. consent of local authorities required by, 28, n. amendment of municipal charter by, 35. power reserved in, to amend or revoke charters, 39. » violation of provisions of, as a ground of forfeiture, 52. provisions of, prescribing location are mandatory, 56. effect of slight departure from designated line, 56. when Inconsistent with city charter, will prevail over, 56. when provision of, as to mode of construction Is merely declaratory of common law duty, 58. relating to common labor on Sunday, 74, n. authorizing joint use of railway tracks, 115, n. joint use of motive power, 119. imposing duty to pave and repair streets, 242, n. p. 405. violation of, against overloading and overdriving, 418. violation of, limiting the hours of labor, 420. authorizing sale of corporation property, 422. the mortgage of franchises and other property, 423. the leasing of such property, 424. classification by, 432. regulation by, 451. STEAM. See Motive Powee. statutes authorizing the use of, as a motive power, 67, n. use of, may be prohibited in Illinois, 68. cable railway operated by steam not steam railroad, 69, 84. as a motive power for street railways, 85. cases holding such railways to be a new burden, 86. cases holding such railways not to be a new burden, 87. STEP. passenger walking along side step while car is in motion, 331, n. p. 540. permitting snow and ice to remain on, 332. riding on step or foot-board, 340, 341, 341, n. p. 558. passenger going to step of rear platform while car is In motion, 349. STOCK. See Capital Stock. STOCKHOLDERS. rights of, as affected by amendment of charter, 37, 38. when statutory liability of, may be increased by legislature, 38. in Ohio, need not consent to the extension of tracks, 63. 908 INDEX. Befereuces are to Sections. STOCKHOLDERS— Oontrnweci. injunction by to prevent operation of railway on Sunday, 74, n. liability of, for the torts of the corporation, 405. of old company, when not bound by rules of consolidated company, 429. may enjoin consolidation of railways until their rights are secured, 429. In case of consolidation, cannot be compelled to take stock in the new corporation, 429. may maintain an action against directors for fraudulent consolida- tion, 429. STORAGE ELECTRICAL SYSTEM. used on interurban railways, 66. STORM. operating cars during, 213, n.; 328, n. 43, p. 537. STRAPS. See SuppoETs. STREET PAVING AND REPAIRS, pavement defined, 240. repair of streets defined, 241. how the duty to pave Is created, 242. statutory provisions concerning, 242, n. p. 405. common law obligation to repair, 243. what is meant by keeping streets in "good repair," 244. what is included in the "reconstruction" of streets, 245. repairs between tracks, 246. obligation to pave whole roadway, 247. obligation to repair bridges, 248. extent of the duty to repair, 250. charging cost of materials to city, 251. duty to pave in case of extension of route, 252. relaying of tracks rendered necessary by construction of new pave- ment, 253. relaying of tracks rendered necessary by public improvements, 255. who to determine necessity of paving or repairs, 254. time when the work shall be done, 254. character of the improvement, 254. liability of municipality for injuries caused by defective streets, 255. municipality may indemnify itself for results of company's negli- gence, 256. company's liability to city for cost of paving chargeable to it, 257. measure of damages in such cases, 258. when company may be excused from paving, 259. how exemptions and privileges may be lost, 43, n. 35, p. 79. remedy for company's failure to pave or repair, 260, 261. INDEX. 909 Beferences are to Sections. STREET PAVING AND REPAIRS— Continued. liability of company for personal injuries caused by its default, 262. it is not essential that it had previous knowledge of defect, 263. but it is entitled to reasonable time to remedy defects, 263. a compliance with city ordinances generally a complete defense 264. when approval of city officials is no defense, 291. lessee is bound to discharge obligations of lessor, 265. obligations of constituent companies are binding upon consolidated company, 266, 429. liability of railway company for failure to pave and repair, 291. failure to pave as a ground of forfeiture, 52, n. obligations concerning, cannot be increased, 5, 40, n. may be released for a consideration, 41. cars may be stopped during, 42. STRiEJET RAILWAYS. See Elevated Railwats, Electric Railways, Inteeueban Rail- WATS, Chaetee, Franchise, Ahuttiitg Owners, Foe- feitdee. Street Paving and Repaies. defined, 1, 56, n. 10, p. 108. who may acquire right to construct, 2. constructed without authority of law are a public nuisance, 11. remedy for unauthorized construction, 12. location of tracks — may cross steam railroad, 109, n. power to determine route and fix location, 55. local authorities usually have right to designate route, 55. when route so determined, no other line can be followed, 56. statutory provisions as to location are mandatory, 56. a slight departure or deflection not always fatal, 56. locating route, 60. duty of public officers may be enforced by mandamus, 60. the route and number of tracks may be left optional with the grantee, 61. granting power may reserve right to determine when additional tracks or routes are necessary, 61. location cannot be changed by grantee, 62. but this may be done by consent of local authorities, 62. when city may compel re-location of tracks, 62. extension of original lines — defined, 63. under what restrictions granted, 63. when consent of abutting owners necessary, 63. whose consent must be obtained, 63. when line may be extended without local consent, 63. in Ohio, extension may be made without concurrence of the stock- holders, 63. 910 INDEX. Seferences aie to Sectious. STREET RAlLiW AYS— Continued. discretion of local authorities cannot be controlled by courts, 63. granting permission to extend tracks Is not an act conferring cor- porate powers, 63. what is meant by parallel and competing lines, 64. remedy for unauthorized location — indictment, 57. removal by order of court, 57. removal by public authorities, 57. injunction at suit of public officers, 57. quo warranto, 57. ejectment at suit of municipality, 57. construction — how tracks must be constructed, 58. duty to properly maintain is continuous throughout life of fran- chise, 58. who to determine the gauge of tracks, 70. when the company may change its gauge, 70. who to prescribe grade of tracks, 71. company may be required to change its grade, 71. what kind of rails may be used, 72. when the T rail may be used, 72. changes in construction authorized by special act, 73. how the duty to construct and operate may be enforced, 65. remedy for defective construction — mandamus, 59. forfeiture of charter, 59. indictment, 59. when abutting owner may not intervene, 59. motive power — different kinds of, classified, 66. legislature may prescribe motive power or delegate that authority to municipality, 67. effect of silence as to, 68. the right to change, 69. steam as a, 85, 86, 87. a legitimate use of the street — when not a new servitude, 80. ownership of fee of the street as affecting the question, 81. the use of, for horse railway, 82. for electric railway, 83. for cable railway, 84. under-ground railway, 88. elevated railway, 89, 185. change of grade, cuts and fills, 92. joint use of streets, tracks and power, 108-125. interference with telephones, 135, and notes, when interference with telephone system may be enjoined, 135, p. 264. INDEX. 911 References are to Sections. STREET RAIIjWAYS— Continued, street paving and repairs — duty to pave, how created, 242. in absence of requirement by statute or ordinance, 243. duty of company to keep street in good repair, 244. to reconstruct street, 245. to repair between tracks, 246. to pave whole roadway, 247. to repair bridges, 248. extent of the duty to repair, 250. duty to pave in case of the extension of tracks, 252. must relay tracks to conform to street improvements, 253. who to determine necessity of paving or repairs, 254. liable to municipality for failing to pave and repair, 255, 256, 257, 258. may be excused from paving, 259. liable to Indictment for failure to pave or repair, 260. may be compelled by mandamus to pave or repair, 261. liable for injuries caused by failure to repair, 262. knowledge of defect in street, 263. required only to conform to ordinances, 264. lessee must discharge obligations of the lessor, 265. duty to pave and repair in case of consolidation, 266, 429. taxation, assessments, license fees — exemption from taxation, 267. commutation of taxes, 268, 269. changes in the mode of taxation, 270. what property of, taxable as real estate, 271. taxation of the franchise, 273. what property taxable as personalty, 272. taxation of capital stock, bonds and dividends, 274. assessment for street paving, 275, 276. for widening streets, 277. for cost of constructing sewers, 278. for constructing cross streets, 278. exacting license fees, 279, 280, 281, 282. Increasing license fees, 283. compensation for use of streets, 284, 285, 286. how amount of bonus fixed and determined, 287. liability of lessee to discharge obligations of lessor, 288. negligence — law of, as applied to street railways and general traveling public, 290-323. as applied to carrier and passenger, 324-376. alienation, encumbrance, consolidation — voluntary sale of franchises and other property, 422. power to lease, 424. limitations on this power, 424. 912 INDEX. References are to Sections. STREET RAILWAYS— Continued. rights and liabilities of lessor and lessee in negligence cases, 425, 426. judicial sale of corporation property, 427. power to mortgage, 428. liens in favor of contractors, mechanics, laborers and material-men, 428. consolidation, 429. STREETS. See Street Railways, Electeio Railways, Interubban Rail- ways, Elevated Railways, Abutting Owners. defined, 75. when city cannot exact compensation for use of, 3. when right-of-way cannot be acquired in, 7. right of passage over, 11. condition of, no objection to granting franchise in, 14, n. who to determine exact location of route and tracks, 55. in Iowa bridge held not to be part of, 240, n. the legislature has paramount authority over, 75. this power may be delegated to municipal authorities, 75. rights of public in, of a twofold character, 76. primary and dominant purpose of, 76, n. relations of abutting owner to, 77. as one of general public, 77. as owner of reversionary interest in, 77. as owner of right of Ingress and egress to and from, 77. use of, for commercial railroads, 78. for elevated railways, 89, 185. abutting owner entitled to compensation, 185. for surface street railways, 79 et seq. when such use is new servitude, 80, 86, 94, 96. ownership of fee in, 81, 187. horse railway not per se a new servitude on, 82. electric railway not per se a new servitude on, 83. cable railway a legitimate use of, 84. steam as a motive power for railways in, 85. cases classing street railways operated by steam with commercial railroads, 86. cases maintaining the opposite doctrine, 87. underground railways in, 88. ■elevated railways in, 89, 185, et seq. freight railroad in, 90. general doctrine as to abutter's right to damages for operating rail- way in, 91. injuries caused by change of grade, 92. cuts and fills, 92. location of tracks on or near side of street, 94. use of, for turn-outs and side-tracks, 95. multiplicity of tracks in; 96. INDEX. 913 References are to Sections. STREETS — Continued. width of, as affecting rights of abutting owners, 96. monopoly in their use not favored, 108. municipal authorities have no implied power to grant, 108. additional grants in, may he made by legislature or local authorities. 108. when abutting owners may object to additional lines, 109. street railways may cross at grade the tracks of a steam rail- road, 109. when additional franchise involves changes In track and road- bed, 111. may be laid over tracks, 118. priority in time of grant gives priority of right, 122. simultaneous railway grants in, 123. railway poles and wires not an unlawful obstruction of, 127. telegraph and telephone poles in, 128. erecting railway poles in roadway, 130. right of street railway in, superior to that of telephone, 135. paving and repair of, by railway company, 243-253. assessments on railway tracks for paving streets, 275, 276. for widening, 277. when railway company entitled to damages for widening, 277. for other local improvements, 278. excavations and obstructions in, 290. failure to make and repair pavements, 291. use of snow plows in, 294. depositing snow in, 294. street cars have paramount right of way in, 303. the rule at street crossings, 304. rate of speed in, 319, 320, 359. use of, by interurban railways, 434-445. STREET CROSSINGS. cars do not have paramount right of way at, 304. STRIKE. failure to operate railway during, 45, n.; 52, n. when not negligent to attempt to operate during, 327, n. 20, p, 533. SUBSEQUENT NEGLIGENCE. See Pboximate Cause. SUBURBAN RAILWAYS. See iNTEEtTBBAN RAILWAYS. distinction between suburban and interurban railways, 431, 440. SUBWAY. See Undeeqeound Railways. in Massachusetts, abutting owners not entitled to compensation for construction of, 88. in Massachusetts, construction of, not an additional servitude, 88. 38 914 INDEX. References are to Sections. SUNDAY. operating street railway on, 74. in Georgia and Kentucky, considered a work of necessity, 74. in Pennsylvania, held to be a work of necessity, 74. permitted by statute in Kentucky and Massachusetts, 74, n. in Canada, injunction for denied, 74, n. in what states traveling on, is a misdemeanor, 74, n. construction of statutes as to traveling on, 74, n. pp. 137, 138. traveling on, in violation of law, not considered contributory negli- gence, 366. running of street cars in large cities on, a work of necessity, 366, n. formerly held otherwise in Massachusetts, 416. working on, In violation of law, 416. SUPERVISORS. See County Supervisors, Township Supervisors. SUPPORTS. passenger should be given an opportunity to seize pendant straps, 348. passenger should endeavor to support himself by, 342, 338. SUPRBMK COURT COMMISSIONERS. See Elevated Railways. appointment of, 157. hearing before, 158. confirmation of report of, 159. adoption of plans for construction, 160. location of routes and buildings by, 161. SWEEPERS. See Snow, Snow Plows. use of, not a nuisance, 294. SWITCHES. See Tracks, Side-Teacks, Grade Crossings. must be located and laid according to direction of public authorities, 56. when right to construct not forfeited, 51, n. 68, p. 100; 61, n. 29, p. 116. when right to construct will be implied, 95. must be kept in repair, 292. TAXATION. See Interurban Railways. of elevated railways and their fixtures, 210. power of state to exempt from, 267. express power of municipal corporations to grant exemptions, 267. commutation of taxes, 5, 268. uniformity of, cannot be defeated by any evasion, 269. exemption from, not presumed, 269. there can be no exemption from, unless Intent is clear, 269. when mode of, cannot be changed, 5, 270. ties, sleepers, rails and spikes are taxable as real estate, 271. when viaducts and bridges are not taxable against railway com- pany, 271. IHDEX. 915 Kefereuces are to Sections. TAXATION— Cow«nMe(«. where road-bed of street railway should be taxed, 271. where realty should be taxed, 271. property which is taxable as personalty, 272. method of assessing franchise and right-of-way, 273. capital stock, bonds and dividends, where and how taxed, 274. of interurban railway property, 452. TAX-PAYERS. See Remedies. TEAMSTERS. evidence of, as to the time and distance within which trucks may be stopped, 403. TELEGRAPH. poles and wires of, are an additional burden on fee of street, 128. the opposite view adopted in Massachusetts and Missouri, 128. companies may be compelled to place wires under ground, 131. crossing of wires of, with railway wires, 134. locating track in close proximity to poles of, 360. passenger thrown against poles of, while attempting to board car, 360. TELEPHONE. See Electeio Railways, Blecteicity. poles and wires of, are an additional burden on fee of street, 128. opposite view adopted in Massachusetts and Missouri, 128. interference with, by railway current, 135 and notes, when interference with system of telephone company may be enjoined, 135, p. 264. mandamus to compel railway company to locate guard wires, 239, n. duty of telephone company in placing its wires, 239, n. TENNESSEE. statute of, requires consent of local authorities, 28, n. requires the use of the tram rail, 72, n. railway-telephone litigation in, 135, n. pp. 255, 256, 257, 258. in Federal Circuit Court of, 135, n. p. 258, 259. rule in as to driving across tracks without looking and listening, 315, n. doctrine of comparative negligence formerly prevailed in, 379. burden of proof as to contributory negligence, is on defendant, 381. TEXAS. franchise can be granted In, only by general law, 3, n. p. 7. rule in, as to degree of care required of carrier, 328. burden of proof in, as to contributory negligence. Is on defendant, 381. statute of, as to liability for Injuries caused by unfitness of servants, 404. THIRD RAIL SYSTEM. extensively used on interurban railways, 66. injuries caused by coming in contact with, 460. 916 INDEX. References are to Sections. TICKETS. See CotTPON Tickets, Commutation Tickets, Tbansfebs. carrier may be required to fumisli, 239. by-law requiring passenger to deliver up, before his journey is terminated, 364. TIBS. of street railway, taxable as real property, 271. TIME. See Fobfeituee, Delay. for receiving proposals for street railway franchises, 26. allowed by statute for constructing railway, 47, n. how time should be computed, 48. as an element in determining intent to abandon franchise, 51, n. of laying pavement, who to determine, 254. TITLE. when abutters must prove, 200. TORT. See Negligence, Passengebs, Damages, Interueban Railways. TOWNSHIP SUPERVISORS. may consent to location of railway, 28, n. TRACKS. See Beidges, Consteuotion and Equipment, Elevated Railways, Inteeueban Railways, Rails, Regulations, Snow Plows, Steeet Paving and Repaies, Steeet Railways, Taxation. of street railways, used to transport freight, 8. consent for single, does not authorize double-track, 19, 188. failure to lay, within time prescribed, 47. failure to construct, as evidence of abandonment of franchise, 51. failure to build additional, as evidence of abandonment, 51, n. who may determine location of, 55. where they must be constructed, 56. remedy for unauthorized location of, 57. how they must be constructed, 58. remedy for defective construction, 59. locating route, 60. additional tracks and optional routes, 61. re-location of, 62. extension of original lines, 63. change of location of, 62. with consent of public authorities, 62, n. gauge of, 70. change of gauge of, 93. location of, on or near side of street, 94. right to construct turn-outs and side-tracks, 95. multiplicity of, and width of streets as affecting rights of abutting owners, 96. are property, 110. INDEX. 917 Beferences are to Sections. TRACKS— Continued. of street railway, may be used by ordinary vehicles without compen- sation, 110. but not by other street railways, 110. or by coach companies doing a rival business, 112 right of one company to use the track of another, 110, 110, n. p. 204. electric railway running cars on horse railway company's tracks, 110, n. limitations on extent of joint use of, 110, 115, n. compelling junction of tracks of different companies, 110, n. p. 204. joint use of, involving changes in construction. 111. changes in, to permit use of new motive power, 111. remedy for prevention of unauthorized use of, 113. right to compensation for joint use of, 114. how compensation ascertained and determined, 115. measure of compensation, 116. statutory provisions as to joint use of, 115, n. appropriation of right to joint use of, 117, 473. appropriation of right to exclusive use of, 118. transfer of license for joint use of, 124. power of municipality to require that they be cleaned and sprinkled, 230. regulation of mode of construction of, 231. repairs between, 246. relaying of, made necessary by construction of new pavement, 253. are taxable as real property, 271. assessment of, for street improvements, 275. where tracks are not within space covered by Improvement, 276. assessment of, for widening streets, 277. for other local improvements, 278. liability of company for failure to keep in repair, 292. no defense that city was partly at fault, 292. what is included in duty to keep in repair, 292. permitting rails to protrude above surface of street, 292. approval of construction of, by city officers, when not a defense, 292, defects in, of cable railways, 292. failure to remove snow and ice from, 293. use of snow plows on, 294. use of salt on, 295, 295, n. 45, p. 475. use of oil and grease on, 295, n. 45, p. 475, liability to passenger for injuries caused by defects in, 331, location of, near telegraph poles, 360. too close to each other, 331. between tracks, 331, n. 58, p. 541. when exemplary damages may be awarded for injuries caused by defects in, 410. of street railway are not personalty, 427. must be sold at judicial sale as realty, 427. 918 INDEX. Beferences are to Sections. TRACKS — Continued. may be mortgaged, 423. are subject to a vendor's lien for rails sold, 423, 428. to mechanics' lien, 425. but not under statute of State of Washington, 428. by express legislative sanction may be leased, 424. rights and liabilities of lessor and lessee of, 425. TRAFFIC. changes in, as affecting right to compensation for joint use of tracks, 125. TRAFFIC AGREEMENTS. See INTEEUEBAN RAILWAYS. TRANSFERS. regulation and custom concerning, 233, n. 62, p. 388; 237. efCect of failure to obtain transfer check, 237, 364, n. 264. company may limit time within which transfers may be used, 237, n. efCect of passenger giving wrong transfer, 237, n. effect of passenger accepting wrong transfer, 237, n. conditions Imposed by public authorities as to issuance of. by inter- urban companies, 437. TRAVELERS. See Stebbt Paving and Repairs, Tbaoks, Negligence, Con- TEIBUTOEY NEGLIGENCE, DEIVEE, DBIVING, PBDESTEIANS. on interurban tracks, rights and duties of, 457. TRAVELING PUBLIC. rights of, 289-323. TREES. on lands of abutters, injury to, 92, n. 38, p. 172. right to remove shade trees, 443, 453. TRESPASSERS. See Passengees. on track through private property, 290. degree of care to be exercised in ejecting from car, 365. TRIAL BY JURY. when not a matter of right in elevated railway cases, 205. TROLLEY SYSTEM. See Electeic Railways. involved in railway telephone litigation, 135, and notes. TRUSTEES. when municipality liable for acts of, in constructing and operating railway, 16. TURN-OUTS. See Teaoks, Switches. must be located and laid according to direction of public authorities, 66. when right to construct will be implied, 9k INDEX. 919 References are to Sections. TURNPIKE ROADS. See INTEBURBAN RAILWAYS. regulation of fares on, 220, n. p. 361. location and construction of railways thereon, 449. TURN-TABLES. Injury of children by, 292. UNDERGROUND. regulations requiring wires to be so placed, 131. UNDERGROUND RAILWAYS. consent of local authorities and abutting owners necessary for, 88. UTAH. railway-telephone litigation in, 135, n. pp. 261, 262, 263. burden of proof in, as to contributory negligence is on defendant, 381. VARIANCE. between pleading and proof, 353, 404. VEHICLES. See Drivers, Driving. regulation of, 220, n. p. 361. opinion evidence as to the time and space within which they may be stopped, 403. VERMONT. holds traveling on Sunday to be contributory negligence, 366. the burden of proof in, as to contributory negligence, is on defendant, 381. VESTED RIGHTS. See Chaeteb, Pbanchise, Contract, License and License Pees. as to taxation, 5. paving and repairing streets, 5, 40, n. the use of T-ralls, 5. of wooden poles, 40, n. railway route cannot be taken for hack stand, 40, n. In Massachusetts, selectmen may revoke franchise, 40, n. limitations on power of legislature to amend or withdraw franchise, 36, 37. when charter rights cannot be revoked, 40. VIADUCT. See Mandamus, constructed by street railway, when taxable against the company, 271. VICE-PRINCIPAL. See Master and Servant. liability of company for injuries to employes caused by negligence of, 412. VH.LAGE. effect of revision of charter of, 35, n. 920 INDEX. Beferences are to Sections. VIRGINIA. the telegraph held to be an additional burden on the soil, 128. same ruling made as to the telephone, 128. rule in, as to pedestrians crossing tracks without looking, 312. VOLTAGE. See BLECTEicixy. VOLUNTARY SALE. See Peopebty. WAGES. failing to ring up fares, as a defense to action for, 417. liability of corporation for, left with Its secretary, 419. extra pay for extra hours, 420. deposit of, by servant to secure faithful discbarge of his duties, 421. WAIVER. See Chaeteb, Release. how and by whom forfeiture may be waived, 50. WALKING ON RAILWAY TRACK. See CoNTBiBUTORy Negligence. WANTONNESS. See Wilful Acts, Exemplabt Damages. WASHINGTON. statute of, requires consent of local authorities, 28, n. rule in, as to driving across tracks without looking and listening, 315, n. the burden of proof in, as to contributory negligence, is on defendant, 381. mechanics' lien cannot be taken in, on street railways, 428. WATCHMAN. when a fellow servant of grip-man, 412. at crossings, expense of maintaining, 114, n. 13, p. 208. WATER. See Geade Ceossings. remedy for diverting, upon abutting property, 98. WEST VIRGINIA. statute of, requires consent of local authorities 28, n. the burden of proof in, as to contributory negligence, is on defendant, 381. WHARVES. may be appropriated, 118, WHISTLE. when failure to give warning by, is negligence, 300. WIFE. See Husband and Wife. WILFUL ACTS. of the servants of corporations as a ground for exemplary damages, 410. INDEX. 921 References are to Sections. WINDOW. protruding liead, arm or hand from, 344, 466. WIRES. See Poles and Wires, Electricity, Negligence. cannot be cut, to permit moving of building, 42, n. right to use overhead wires, 127. regulations requiring wires to be placed underground, 131. power to cause removal of, from public streets. 131. their use may be regulated, 131. danger from crossing of, when charged with electricity, 133, n.; 134. duty of telephone company to place wires safely, 239, n. live wires in streets, 292. WISCONSIN. statute of, requires consent of local authorities, 28, n. railway-telephone. litigation in, 135, n. pp. 259, 260, 261. rule in, as to driving across tracks without looking and listening, 315, n. rule in, as to degree of care required of carrier, 328. traveling in, on Sunday held not to be contributory negligence, 366. burden of proof In, as to contributory negligence, is on defendant, 381. permits negligence of parents to be imputed to their children, 389. when operation of interurban railway cannot be considered as benefit to be set off against damages, 442, 447. WORDS AND PHRASES, "across," 56, n. 10, p. 109. "adjoining property," 275. "all debts," 405. "as near as may be," 56, n. 7, p. 107. "as nearly as possible," 56, n. "as nearly as practicable in the middle of the street," 56, n. 7, p. 107. "between," 34, n. "cars and vehicles," 116, n. p. 215. "commence and complete," 46, n. "completion," 47, n. 53, p. 89. "debts," 405. "dues," 405. "electric or mechanical motors," 68. "except in," 56, n. "extension," 62, n. 30; 63. "good repair," 244. "horse or other power," 69. "horse railroad," 109, n. "in," 34, n. "In and through," 34, n. "Interurban railway," 430. "invasion of easements of light, air and access," 191. "juBt compensation," 116. "lands and real estate," 210. 922 INDEX. References are to Sections. WORDS AND PHRASES— Continued. "license," 279. "local authorities," 28, p. 48. "locomotive engineer," 471. "lots and parcels of land," 275, n. 43, p. 443. "manufacturers," 269, n. 9, p. 430. "motor," 68, n. p. 128. "on, over and along," 34, n. "on any street," 247. "parallel and competing lines," 64. "passenger," 326. "pavement," 240. "railroad," 471. "railroad and railway," 1, n.; 56, n. p. 109. "railroad or any other structure," 428. "real property," 210, n. 271, p. 347. "reconstructing streets," 245. "repair," 241. "road." 75. "shall cease," 46. "shall be determined," 46. "shall cease and be null and void," 46, 46, n. "street," 75. "take away the franchise," 46, n. "to and from," 34, n. "upon and over," 34, n.; 56, n. WORKMEN. injury of, while employed in the street, 314 and note. KF 2393 Z95 B72 1911 Author Bont.h Henry Judson Copy A treatise on the law of street RR Date Borrower's Name ¥'•■ : w