({orn^U IGatu Btl^aal ffiibtary 
 
KF2393.N4T"""'"""'''-"'""^ 
 
 The law of street surface railroads, as c 
 
 3 1924 019 373 459 
 
P B Cornell University 
 
 iJ hi) Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019373459 
 
THE LAW 
 
 Street Surface Railroads 
 
 AS COMPILED FROM 
 
 STATUTES AND DECISIONS IN THE VARIOUS STATES AND TERRI- 
 TORIES SHOWING THE MANNER OF ORGANIZING CORPO- 
 RATIONS TO CONSTRUCT AND OPERATE STREET SUR- 
 FACE RAILROADS, THE ACQUISITION OF THEIR 
 FRANCHISES AND PROPERTY, THEIR REGU- 
 LATION, ETC., BY STATUTE AND MUNICI- 
 PAL ORDINANCE, THEIR RIGHTS AND 
 LIABILITIES BOTH AS TO OTHER 
 USERS OF THE STREETS AND 
 HIGHWAYS AND AS TO PAS- 
 SENGERS AND EMPLOYEES. 
 
 BY 
 
 ANDREW J. N E L L I S, 
 
 OF THE NEW YORK STATE BAR. 
 
 ALBANY, N. Y.: 
 
 MATTHEW BENDER. 
 1902 . 
 
COPYBIGHT, 1902, 
 
 Br MATTHEW BENDER. 
 
 
 ]. B. LVO» COMPANY 
 
 PRINTBSS AND BINDERS 
 
 ALBANY, H, Y, 
 
PREFACE 
 
 The increase in the surface railway mileage, and the great 
 number of street railroad decisions made during the last ten 
 years it is believed warrants the issuing of this volume, 
 which it is hoped will in a measure fill the growing demand 
 for a work on this subject. 
 
 The writer has endeavored to put together in convenient 
 form and under a logical arrangement an epitome of the 
 judicial decisions relating to street railways, the aim being 
 to make the book a time and labor saver, and a work of 
 ready reference for the active practitioner, and one also that 
 would be useful to the student who desires to become ac- 
 quainted with the law of street surface railroads from the 
 organization to the dissolution of the corporation. 
 
 It is claimed for this work that it contains a survey of the 
 entire field of the law, that in it there is gathered together, 
 classified and arranged, a mass of precedent directly involv- 
 ing street surface railroad corporations, their organization, 
 acquisition of franchises and other property, construction 
 and maintenance of railroad, and their rights and duties in 
 relation, to other users of the public streets and highways, 
 and also to their passengers and employees, which will be 
 of use to busy lawyers. 
 
 The writer has the utmost confidence that the work will 
 be found a useful one, because it contains no ideas of his 
 own; rather a digest of the decisions, and statements of the 
 reasons therefor, when such statements are given, in the 
 
 (iii) 
 
IV PREFACE. 
 
 words, as nearly as may h6, of the court giving them utter- 
 ance. There is here brought together, in a more or less 
 systematic manner, the authorities upon points which are 
 likely to arise in one's daily practice. 
 
 Street railroads are creatures of the statute, and yet the 
 statutes of the several States upon the subject are so similar 
 in substance that a decision in any State is useful to the 
 practitioner in any other State. Without further comment 
 the work is placed before the profession for its approval. 
 
 ANDREW J. NELLIS. 
 Johnstown, N. Y., June i, 1902. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 The Right to Construct and Operate Street Surface Railroads; How 
 Granted and Controlled by the Legislature. 
 
 Section i. What are street railroads, i. 
 
 2. To whom the right to operate may be granted, 8 
 
 3. Location not confined to streets, 11. 
 
 The Charter. 
 
 4. Delegation of sovereign authority, 12. 
 
 5. Conditions prescribd by Constitution or annexed to grant; 
 
 time limit of grant, 17. 
 
 6. Authority delegated only for a public use, 22. 
 
 7. The delegated authority not to be implied, 24. 
 
 8 Curat' ve act validating exercise Of authority, 29. 
 9. Charter a contract; how construed, 32. 
 ID. Amendment or repeal of charter, 39. 
 
 11. Forfeiture or annulment of charter, 43. 
 
 12. Legislative control of streets, 49. 
 
 CHAPTER II. 
 The Franchise; How Acquired; How Limited. 
 
 Section i. Its character; how distinguished from charter or license, 52. 
 
 2. Power of municipality to grant, 58. 
 
 3. Municipality; how further controlled in granting franchise, 
 
 62. 
 
 4. Certificate of public convenience and a necessity, 67. 
 
 5. Consent of local authorities, 71. 
 
 6. Consents of abutting property owners, 78. 
 
 7. Bids for franchise, 82. 
 
 8. Extension;, 90. 
 
 9. Proceedings, if property owners do not consent, 97. 
 
 10. Proceedings without consent; how prevented, 102. 
 
 11. Conditions imposed with consent; rights of the grantee and 
 
 public thereunder, 104. 
 
 12. When consents may be presumed, no. 
 
 13. Acceptance of franchise, in. 
 
 (v) 
 
VI TABLE OF CONTENTS. 
 
 Section 14. Rights under franchise; how and by whom questioned, 112. 
 
 15. Conflicting grants of franchises, 114. 
 
 16. Sale or lease of franchise and property, 117. 
 
 17. Abandonment or revocation of the franchise, 122. 
 
 18. Expiration of franchise and renewal, 124. 
 
 19. Forfeiture; how waived, 126. 
 
 20. When specific performance of contract for mutual co-opera- 
 
 tion in securing franchise, will be refused, 130. 
 
 CHAPTER III. 
 
 Acquisition, and herein Eminent Domain; Rights of Abutting Owners 
 
 Securing Use of Other Tracks, Crossings, Bridges, Etc. 
 
 Section i. Unauthorized use of highways a nuisance, 131. 
 
 2. Rights of public and abutting owners in streets, 134. 
 
 3. Taking of abutting owners' property, 143. 
 
 4. Remedies of abutting owners, 152. 
 
 5. Eminent domain, 155. 
 
 6. Proceedings to ascertain compensation, 162. 
 
 7. Compensation, 167. 
 
 8. Consolidation, 168. 
 
 9. Use of tracks of other roads and traffic arrangements, 174. 
 
 10. Crossing other tracks, 186. 
 
 11. Use of turnpikes, bridges, etc., 193. 
 
 12. Motive power, 197. 
 
 CHAPTER IV. 
 Regulation; Repairs; Paving. 
 
 Section i. General power of municipality to regulate, 205. 
 
 2. How power usually conferred and exercised, 214. 
 
 3. Regulation as to servants, equipments, fares, etc., 219. 
 
 4. Regulations as to care and manner of running cars, 225. 
 
 5. Regulation as to care of streets; removing dirt, snow and 
 
 ice, etc., 230. 
 
 6. Repairs; license fees and percentages to municipality, 232. 
 
 7. Location of track, 237. 
 
 8. Construction of roadbed, track, turnouts and switches, 242. 
 
 9. Remedies for unauthorized or defective construction, 245. 
 
 10. Construction and maintenance; how enforced, 246. 
 
 11. Placing electrical conductors underground, 247. 
 
 12. Paving and repaving, 253. 
 
 13. Repairs, 259. 
 
 14. Repair of bridges, 262. 
 
 15. Liability of company for neglect to repair; how enforced 
 
 263. ' 
 
 16. Licensees' or transferees' liability, 266. 
 
TABLE OF CONTENTS. Vll 
 
 CHAPTER V. 
 
 Operation; and herein of the Company's Rights and Duties in Rela- 
 tion to Individuals Other than Passengers and Employees. 
 
 Section i. Measure of care required generally, 269. 
 
 2. Contractors and lessees, 274. 
 
 3. Roadbed and tracks, 275. 
 
 4. Cars and appliances, 278. 
 
 5. Fenders and other guards, 281. 
 
 6. Care of its electric wires, 283. 
 
 7. In relation to telephone or other light current wires, 286. 
 
 8. Lookout and signals, 292. 
 
 9. Duties of motormen, gripmen, drivers, etc., 298. 
 
 10. Compliance with statute, municipal, and other regulations, 
 
 306. 
 
 11. Municipal liability, 310. 
 
 12. Joint liability with other individuals, 312. 
 
 13. Street crossings, 313. 
 
 14. Route other than at street crossings, 317. 
 
 15. Right ot way, 319. 
 
 16. Ambulances, hose-carts, etc., 32a 
 
 17. Obstructing street with cars, 322. 
 
 18. Rate of speed, 323. 
 
 19. Frightening animals, 328. 
 
 20. Collision with steam train, 333. 
 .21. Collision with other car, 336. 
 
 22. Collision with animals, or other vehicles, 338. 
 
 23. Collision with persons on or near tracks, 343. 
 
 24. Collision with workmen upon street, 349. 
 
 Contributory Negligence. 
 
 25. Measure of care required generally, 3S4- 
 
 26. Rule to stop, look, and listen, 365. 
 
 27. Pedestrians, 371. 
 
 28. Children, 374. 
 
 29. Infirm persons, 379. 
 3a Bicyclist, 380. 
 
 31. Avoidable injury notwithstanding contributive negligence, 
 
 383. 
 
 32. Attributable negligence, 387. 
 
Till TABLE OF CONTENTS. 
 
 Pleading and Practice. 
 
 Section 33. Pleading, 389. 
 
 34. Burden of proof, 394. 
 
 35. Evidence, 396. 
 
 36. Questions for jury, 405. 
 Z7- Instructions to jury, 406. 
 38. Damages, 410. 
 
 CHAPTER VI. 
 
 Operation Continued; and lierein of the Rights and Duties of the 
 
 Company in its Relation to Passengers; and also to Employees. 
 
 Section i. Measure of care required generally, 414. 
 
 2. Statute and municipal regulation, 418. 
 
 3. Roadbed and track, 420. 
 
 4. Cars and appliances, 427. 
 
 5. Inspection, 430. 
 
 6. Rules adopted by the company, 433. 
 
 7. Rates of fare, 435. 
 
 8. Transfers, 440. 
 
 9. Contract limiting liability, 445. 
 
 la When relation of carrier and passenger commences, 446. 
 
 11. Who are not passengers, 448. 
 
 12. When relation of carrier and passenger ceases, 449. 
 
 13. Duty of motorman, etc., in management of car, 450. 
 
 14. Duty of employees in looking after safety and comfort of 
 
 passengers, 454. 
 IS- Boarding cars, 457. 
 
 16. Carrying packages, live animals, and dangerous weapons in 
 
 the cars, 464. 
 
 17. Crowding cars, 467. 
 
 18. Riding on platform, footboard, or running-board, 472. 
 
 19. Paying fares, 476. 
 
 20. Alighting, 479. 
 
 21. Trespassers, 487. 
 
 22. Damages for failure to carry passenger, 490. 
 
 23. Assault, etc., upon passenger by employee, 491. 
 
 24. Assault, etc., upon passenger by stranger, 498. 
 
 25. Ejection by employee, 500. 
 
 26. Care of parcels left in car, 26. 
 
 27. False arrest, 506. 
 
 28. Injury to passenger in collision with other vehicle, 508- 
 
 29. Position of apparent peril, 512. 
 
 30. Rate of speed, 515. 
 
 31. Curves and speed thereon, 516. 
 
 32. Presumption of negligence, 518. 
 
 33. Avoidable accident, 520. 
 
TABLE OF CONTENTS. IX 
 
 Contributory Negligence. 
 
 Section 34. Measure of care required of passenger, 522, 
 
 35. Children, 527. 
 
 36. Infirm persons, 529. 
 
 Z7. Intoxicated persons, 531. 
 38 Employees, 533. 
 
 Pleading and Practice. 
 
 39. Pleading, 539. 
 
 40. Burden of proof, 542. 
 
 41. Questions of evidence in actions for injury to passenger, 545. 
 
 42. Questions for jury in such cases, 552. 
 
 43. Instructions to jury in such cases, 556. 
 
 44. Damages in such cases, 558. 
 
 CHAPTER Vll. 
 Taxes; Special Assessments; License Pees. 
 
 Section i. Legislative power to tax, 567. 
 
 2. Uniformity required by Constitution, 570. 
 
 3. Exemption from taxation, 573. 
 
 4. Commutation for taxes, 577. 
 
 5. Taxation of tangible property, 578. 
 
 6. Taxation of same railroad property in several municipalities, 
 
 583. 
 
 7. Taxation of capital stock, 584. 
 
 8. Taxation of franchise, 587. 
 
 9. Taxation of earnings, 593. 
 
 10. License fees, 595. 
 
 11. Eflfect of consolidation, 597. 
 
 12. Special assessments, 599- 
 
TABLE OF CASES. 
 
 A. PAGB 
 
 Abbott V. Johnstown, etc., R. Co., 80 N. Y. 27 118, 274 
 
 Abendroth v. Manhattan R. Co., 122 N. Y. i 149 
 
 Abraham v. Myers, 23 N. Y. Supp. 225 74 
 
 Abrahams v. Los Angeles, 124 Cal. 41 1 322 
 
 Adams v. City of Halifax, 13 N. S. L. R. 344 260 
 
 Adams v. Hannibal, etc., R. Co., 71 Mo. 553 512 
 
 Adams v. Met. St. Ry. Co., 60 App. Div. (N. Y.) 188 303, 378 
 
 Adams v. Nassau El. R. Co., 51 App. Div. (N. Y.) 241 303, 376 
 
 Adams v. Union R. Co., 21 R. 1. (Part I) 137 479 
 
 Adams v. Washington & G. R. Co. (D. C, App.), 9 App. Div. (D. C.) 
 
 26 473 
 
 Adams v. Yazoo & M. V. R. Co., yy Miss. 194 173 
 
 Adams Exp. Co. v. Kentucky, 166 U. S. 171 588 
 
 Adams Exp. Co. v. Ohio St. Auditor, 166 U. S. 185 587 
 
 Adams Exp. Co. v. Poe, 61 Fed. 470 572 
 
 Adamson v. Nassau El. R. Co., 89 Hun (N. Y.), 261 50, 67, 87 
 
 Adee v. Nassau El. R. Co., 65 App. Div. (N. Y.) 529 82, 104 
 
 Adolph V. Railroad Co., ^(> N. Y. 530 318, 328 
 
 Africa v. Knoxville (C. C. E. D., Tenn.), 70 Fed. 729. . 38, 95, 114, 123 
 Aiken v. Frankford & S. P. City Pass. R. Co., 142 Pa. St. 47.. 474, 523 
 
 Aiken v. Holyoke St. Ry. Co. (Mass.), 61 N. E. 557 303 
 
 Akersloot v. Second Ave. R. Co., 131 N. Y. 599 450, 454 
 
 Alabama G. S. R. Co. v. Hill, 93 Ala. 514 415 
 
 Albany v. Watervliet, etc., Co., 45 Hun (N. Y.), 442 243 
 
 Albert v. Albany Ry. Co. (N. Y.), 6 Am. Electl. Cas. 529 378 
 
 Alexander v. R. C. & B. R. Co., 128 N. Y. 13 296, 511 
 
 Alldred v. W. Met. Tram. Co. (C. A.) (1891), 2 Q. B. 398 261 
 
 Allen v. D. D., etc., Ry. Co., 2 N. Y. Supp. 738 432 
 
 Allen v. London & S. W. R. Co., L. R., 6 Q. B. 65 507 
 
 Allen V. McKean, i Sumner, 276 40 
 
 Allen V. United Tract. Co., 73 N. Y. Supp. 737 428 
 
 Alleghany Val. R. Co. v. School Dist. (C. P. Pa.), 29 Pittsb. L. J. 
 
 (N. S.) 314 58t 
 
 Almand v. Atl., etc., Co., 108 Ga. 417 59, 167 
 
 Altemeier v. Cincinnati St. R. Co. (C. P.), 4 Ohio N. P. 224 372 
 
 Altreuter v. H. R. R. Co., 2 E. D. Smith (N. Y), 151 310 
 
 Ames V. People, Temple, 26 Colo. 83 575 
 
 (xi) 
 
xii TABLE OF CASES. 
 
 PAGS 
 
 Ames V. Union Co., 17 Oreg. 600 iSj 
 
 Anacostia & P. River R. Co. v. Klein, 8 App. D. C. 75 461 
 
 Anderson v. Brooklyn H. R. Co., 32 App. Div. (N. Y.) 266 S20 
 
 Anderson v. Citizens' St. R. Co. (Ind. App.), 38 N. E. 1109 480 
 
 Anderson v. Jersey City El. L. Co. (N. J.), 43 Atl. 654 353 
 
 Anderson v. Met. St. R. Co., 30 Misc. Rep. (N. Y.) 104 296, 389 
 
 Anderson v. Minneapolis St. R. Co., 42 Minn. 490 529 
 
 Anderson v. Third Ave. R. Co., 36 App. Div. (N. Y.) 309 459 
 
 Anderson v. Union Tract. Co., 7 Pa. Dist. Ct. 41 443 
 
 Andrews v. Capital City, etc., R. Co., 2 Mackey (S. C), 137 474 
 
 Anselment v. Daniel!, 4 Misc. Rep. (N. Y.) 144 352 
 
 Ansteth v. B. R. Co., 145 N. Y. 210 487 
 
 Appeal of Cherryfield & M. El. R. Co., 95 Me. 361 ..- 64 
 
 Appeal of North Beach, etc., R. Co., 32 Cal. 499 580 
 
 App. Tax Ct. V. Union R. Co., 5a Md. 274 581 
 
 Areata v. Areata & M. R. Co., 92 Cal. 639 iSr 
 
 Armsted v. Mendenhall (Minn.), 85 N. W. 929 320, 358 
 
 Armstrong v. Grant, 56 Hun (N. Y.), 226 253 
 
 Armstrong v. Met. St. R. Co., 23 App. Div. (N. Y.) 137 520 
 
 Armstrong v. Met. St. R. Co., 36 App. Div. (N. Y.) 525 . . . 452, 462, 485 
 
 Arnold v. H. R. R. Co., S5 N. Y. 661 150 
 
 A. R. T. Co. V. Hess, 125 N. Y. 641 v.. 248 
 
 Asbury v. Charlotte Ry., L. & P. Co., 125 N. C. 568 469, 475, 480 
 
 Ashbury, etc., Ry. Co. v. Riche, L. R., 7 H. L. 653 119 
 
 Ashe V. Cummings, 50 N. H. 591 i6r 
 
 Asheville St. Ry. Co. v. Asheville, 109 N. C. 683 127, 243 
 
 Ashland St. R. Co. v. Ashland, 78 Wis. 271 241, 243 
 
 Ashland & C. St. R. Co. v. Faulkner, 21 Ky. L. Rep. 151 137 
 
 Aspinwall v. Ohio & M. R. Co., 20 Ind. 492 173 
 
 Astor V. Arcade R. Co., 1 13 N. Y. 93 42 
 
 Atchafalaya Bank v. Dawson, 13 La. 497 ^g 
 
 Atcheson v. Mallon, 43 N. Y. 147 gg 
 
 Atchison & N. R. Co. v. Manley, 42 Kan. 577 jei 
 
 Atchison St. R. Co. v. Mo. Pac. R. Co., 31 Kan. 660.. 26, 27, 55, 56 
 
 Atchison St. R. Co. v. Nave, 38 Kan. 744. 46^ ,5 212 
 
 Atchison, T. & S. F. R. Co. v. Elder, 149 111. 173 _ ' . . .' 423 
 
 Atchison, T. & S. F. R. Co. v. Gen. EI. Ry. Co., 112 Fed. 689....'! 512 
 
 Atchison, T. & S. F. R. Co. v. Headland, 18 Colo. 477 488 
 
 Atchison, T. & S. F. R. Co. v. Henry, 55 Kan. 713 .....492 507 
 
 Atchison, T. & S. F. R. Co. v. Hughes, S5 Kan. 491 ' -22 
 
 Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96 ,- 
 
 Atchison, T. & S. F. R. Co. v. Weber, 33 Kan. 543 ........." ctl 
 
 Atlanta v. Gate City Gas Light Co., 71 Ga. 106 '" jjj 
 
 Atlanta v. Old Colony Trust Co. (C. C. App. sth C), 59 U. S. App 
 
 230 
 
 445 
 
TABLE OF CASES. XIU 
 
 PAGE 
 
 Atlanta Consol. St. Ry. Co. v. Atlanta, in Ga. 255 256 
 
 Atlanta Consol. St. Ry. Co. v. Bates, 103 Ga. 333 449, 511 
 
 Atlanta Consol. St. Ry. Co. v. Keeny, 99 Ga. 266 479 
 
 Atlanta Consol. St. Ry. Co. v. Owings, 97 Ga. 663 292, 353 
 
 Atlanta & F. R. Co. v. Wright, 87 Ga. 487 572, 594 
 
 Atlanta Ry. & P. Co. v. Atlanta R. T. Co. (Ga.), 39 S. E. 12. . . 78, 184 
 
 Atlantic- Coast E. Ry. Co. v. Rennard, 62 N. J. L. 773 318 
 
 Atlantic, etc., R. Co. v. Condor, 75 Ga. 51 495 
 
 Atlantic, etc., R. Co. v. Dunn, 19 Ohio St. 162 495 
 
 Atlantic, etc., R. Co. v. St. Louis, 3 Mo. App. 315 32, 241 
 
 Atlantic, etc., R. Co. v. U. S., 76 Fed. 192 221 
 
 Attorney-General v. Chicago, etc., R. Co., 121 111. 638 78 
 
 Attorney-General v. Chicago, etc., R. Co., 112 111. 520 127, 241 
 
 Attorney-General v. Chicago, etc., R. Co., 35 Wis. 602 32, 53 
 
 Attorney-General v. Chicago & Evanston R. Co., 112 111. 6ii .. 31, 38 
 
 Attorney-General v. Fagan, 22 La. Ann. 545 113 
 
 Attorney-General v. Lombard, etc., Ry. Co., 10 Phila. (Pa.) 352. . 25, 132 
 
 Attorney-General v. Madison St. Ry. Co., 72 Wis. 612 127 
 
 Attorney-General v. Met. R. Co., 125 Mass. 515 S6 
 
 Attorney-General v. Old Colony R., i6q Mass. 87 221 
 
 Attorney-General v. Railroad Co., 35 Wis. 425 40 
 
 Atwood V. Met. St. R. Co., 25 Misc. Rep. (N. Y.) 758 427 
 
 Auditor General v. Flint, etc., R. Co., 114 Mich. 682 575 
 
 Augusta Ry. Co. v. Andrews, 89 Ga. 653 284 
 
 Augusta & S. R. Co. v. Augusta, loo Ga. 701 22, 126 
 
 Augusta & S. R. Co. v. Glover, 92 Ga. 132 428, 449 
 
 Augusta & S. R. Co. v. Randall, 79 Ga. 304 550 
 
 Aurora & G. R. Co. v. Harvey, 178 111. 477 159 
 
 Austin Dam & S. R. Co. v. Goldstein, 18 Tex. Civ. App. 704 384 
 
 Avery v. N. Y. C, etc., R. Co., 121 N. Y. 31 434 
 
 Avey V. Galveston, H. & S. A. R. Co., 81 Tex. 243 529 
 
 Avon-by-the-Sea Land & Imp. Co. v. Neptune City (N. J. Err. & 
 
 App.), 32 Atl. 220 75 
 
 Aycock v. San Antonio Brewing Assn. (Tex. Civ. App.), 63 S. W. 
 
 903 3. 10, 143 
 
 Aydelott v. Cincinnati (C. C), i Ohio Dec. 523 : 75 
 
 Ayers v. Rochester R. Co., 156 N. Y. 104 416, 518 
 
 B. 
 
 Babcock v. Los Angeles Tract. Co., 178 Cal. 163 S17 
 
 Eaber V. Broadway & S. A. R. Co., 10 Misc. Rep. (N. Y.) 109 488 
 
 Bachrach v. Nassau El. R. Co., 35 App. Div. (N. Y.) 633 453, 459 
 
 Backus v. Fort St. Union Depot Co., 169 U. S. 568 163 
 
XIV TABLE OF CASES. 
 
 PAGE 
 
 Bacon v. Consol. Tract. Co. (Pa. C. P.), 30 Pittsb. L. J. (N. S.) 
 
 431 381 
 
 Bailey v. Market St. Cable R. Co., no Cal. 320 348, 3S6 
 
 Bailey v. Tacoma Tract. Co., 16 Wash. 48 473. S26 
 
 Baird v. Citizens' R. Co., 146 Mo. 265 294 
 
 Baird v. N. Y. C. & H. R. R. Co., 64 App. Div. (N. Y.) 14 412 
 
 Baird v. Sheehan, 38 App. Div. (N. Y.) 7 89 
 
 Baker v. Backus, 32 111. 79 44, 47 
 
 Baker v. Eighth Ave. R. Co., 62 Hun (N. Y.), 39 375 
 
 Baker v. Manhattan Ry. Co., 118 N. Y. 533 515 
 
 Baker v. Selma St. & S. R. Co. (Ala.), 30 So. 464 51 
 
 Baldwin v. Barney, 12 R. I. 392 418 
 
 Baldwin v. Fort Haven & W. R. Co., 68 Conn. 567 455 
 
 Balla v. Met. St. R. Co., 27 Misc. Rep. (N. Y.) 775 372 
 
 Baltimore v. Baltimore, etc., R. Co., 84 Md. i 2, 595 
 
 Baltimore v. Baltimore T. & G. Co., 166 U. S. 673 211, 217 
 
 Baltimore v. Tel. Co., 7 Am. Electl. Cas. 158 249 
 
 Baltimore Belt R. Co. v. Baltzell, 75 Md. 94 163 
 
 Baltimore C. & A. R. Co. v. Ocean City, 89 Md. 89 574 
 
 Baltimore City Pass. R. Co. v. Baer, 90 Md. 97 461 
 
 Baltimore City Pass. R. Co. v. Cooney, 87 Md. 261 384 
 
 Baltimore City Pass. R. Co. v. Kemp, 61 Md. 74 539 
 
 Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 544 307, 527 
 
 Baltimore City Pass. R. Co. v. Nugent, 86 Md. 349 414, 430 
 
 Baltimore City Pass. R. Co. v. Wilkinson, 30 Md. 224 471 
 
 Baltimore Consol. R. Co. v. Rifcowitz, 89 Md. 338 384 
 
 Baltimore Consol. R. Co. v. State, 91 Md. 506 311 
 
 Baltimore, etc., R. Co. v. Marshall Co., 3 W. Va. 319 32 
 
 Baltimpre, etc., R. Co. v. Whitacre, 35 Ohio St. 627 546 
 
 Baltimore, etc., R. Co. v, Whittington, 30 Gratt. (Va.) 809 545 
 
 Baltimore & O. R. Co. v. Barger, 80 Md. 23 4g8 530 
 
 Baltimore & Susque. R. Co. v. Nesbet, lo How. (U. S.) 395 30 
 
 Baltimore Tract. Co. v. Appel, 80 Md. 603 ,4, 
 
 Baltimore Tract. Co. v. Helms, 84 Md. 515 367 370 
 
 Baltimore Tract. Co. v. State, Ringgold, 78 Md. 409 464, 531 
 
 Baltimore Tract. Co. v. Wallace (Md.), 21 Wash. L. Rep. 313. . 299' 385 
 Baltimore Trust & G. Co. v. Baltimore (C. C. D. Md.), 64 Fed. 153. ' 60 
 Baltimore, etc., Tp. Road v. Baltimore, etc., R. Co., 81 Md. 247. '. ' 193 
 
 Baltimore & Y. Tp. Road v. Boon, 45 Md. 344 
 
 Bancroft v. San Diego, 120 Cal. 432 
 
 Bangor, O. & M. R. Co. v. Smith, 47 Me. 34 _ 
 
 Bank of Augusta v. Earle, 38 U. S. (13 Pet.) 519 ] 
 
 Bank of U. S. v. Dandridge, 25 U. S. (12 Wheat.) 64 ...!.."".'"'/ " j j^ 
 Banks v. Highland City Ry^ Co., 136 Mass. 483 
 
TABLE OF CASES. XV 
 
 PAGE 
 
 Bannet v. Alton, etc., R. Co., 13 111. 504 42 
 
 Banta v. Chicago, 172 111. 204 572 
 
 Barber Asphalt Paving Co. v. New Orleans & C. R. Co., 49 La. 
 
 Ann. 1608 256 
 
 Barbier v. ConoUy, 113 U. S. 27 35 
 
 Bard v. Pa. Tract. Co. (Pa.), 6 Am. Electl. Cas. 444 469, 518 
 
 Bardstown & Louisville R. Co. v. Metcalf, 4 Mete. (Ky.) 199 120 
 
 Barker v. Central Park, N. & E. R. R. Co., 151 N. Y. 237. . 433, 435, 477 
 
 Barksdull v. New Orleans & C. R. Co., 23 La. Ann. 180 529 
 
 Barnes v. Shreveport City R. Co., 47 La. Ann. 1218 294, 377, 379 
 
 Barnett v. Brooklyn Heights R. Co., 53 App. Div. (N. Y.) 432 224 
 
 Barrett v. Market St. R. Co., 81 Cal. 296 477 
 
 Barrett v. Stockton & D. R. Co., 2 M. &. G. 134 36 
 
 Barrett v. Third Ave. R. Co., 45 N. Y. 628 312, 510 
 
 Barry v. Third Ave. R. Co., 51 App. Div. (N. Y.) 385 508 
 
 Barry v. Union Tract. Co. (Pa.), 45 Atl. 321 470 
 
 Barth v. Kansas City El. R. Co., 142 Mo. 535 446, 461 
 
 Bartley v. Railway Co., 148 Mo. 124 470 
 
 Basch V. North Chicago St. R. Co., 40 111. App. 583 464 
 
 Bass V. Chicago, etc., R. Co., 42 Wis. 654 494 
 
 Bass V. Concord St. Ry. Co. (N. H.), 46 Atl. 1056 485 
 
 Bass, Admr. v. Norfolk Ry. & L. Co. (Va.), 40 S. E. 100 512, 516 
 
 Bassau v. Mad. El. Ryi Co., 106 Wis. 301 478 
 
 Bassett v. Los Angeles Tract. Co., 65 Pac. 470 519 
 
 Bath Gas Light Co. v. Claffy, 151 N. Y. 24 120 
 
 Baulec v. N. Y., etc., R. Co., 59 N. Y. 3S6 281 
 
 Bauman v. Ross, 167 U. S. 593 163 
 
 Baumann v. Met. St. R. Co., 21 Misc. Rep. (N. Y.) 658 370 
 
 Baumgartner v. Mankato, 60 Minn. 244 212, 262 
 
 Bay City Belt Line R. Co. v. Hitchcock, 90 Mich. 535 164 
 
 Beal V. Lowell & B. St. R. Co., 157 Mass. 444 525 
 
 Beardsley v. N. Y., L. E. & W. R. Co., 15 App. Div. (N. Y.) 251. . 435 
 Becker v. Detroit Citizens' St. Ry. Co. (Mich.), 80 N. W. 581.. 314, 337 
 
 Becker v. Gulf City St. Ry. Co., 80 Tex. 475 I74 
 
 Beecher v. Long Isl. R. Co., 161 N. Y. 222 549 
 
 Beekman v. Third Ave. R. Co., 153 N. Y. 144 ■ • i3, 23, 59, 81, 88, 90, 91 
 
 Beeson v. Chicago (C. C. N. D. 111.), 75 Fed. 880 79 
 
 Beem v. Tama, etc., Co., 104 Iowa, 563 301 
 
 Behr v. Erie R. Co., 69 App. Div. (N. Y.) 416 478 
 
 Bell v. Midland R. Co., 10 C. B. (N. S.) 287 494 
 
 Belleville v. Citizens' H. R. Co., 152 111. 171 55 
 
 Bellew V. N. Y., etc., Co., 47 App. Div. (N. Y.) 447 103, 132 
 
 -Bellinger v. N. Y. C. R. Co., 23 N. Y. 42 23^ 
 
XVI TABLE OF CASES. 
 
 rAGR 
 
 Bello V. Met. St. R. Co., 2 App. Div. (N. Y.) 313 :.: 378- 
 
 Bell Tel. Co. v. Montreal St. R. Co. (Rap. Jud. Quebec), 6 B. R. 
 
 223 60, 201, 287 
 
 Belt El. R. Co. V. Tomlin, 19 Ky. L. Rep. 433 48o 
 
 Beman v. Rufford, i Sim. (N. S.) SSO "9- 
 
 Bengivenga v. Brooklyn Heights R. Co., 48 App. Div. (N. Y.) SiS- ■ 35-^ 
 
 Benjamin v. Holyoke St. R. Co., 160 Mass. 3 330, 333 
 
 Bennett v. Detroit Citizens' St. R. Co. (Mich.), 82 N. W. S18 381 
 
 Benson v. Manhattan Ry. Co., 31 Misc. Rep. (N. Y.) 723 4i6. 
 
 Benson v. N. J. R. & T. Co., 22 N. Y. Super. Ct. (9 Bosw.) 412. .. . 491 
 
 Bergeman v. Ind., etc., Ry., 104 Mo. 86 55° 
 
 Bergen v. So. New England Tel. Co., 70 Conn. 54 290. 
 
 Bergen Co. Tract. Co. v. Demorest, 62 N. J. L. 755 SiP 
 
 Bergen Go. Tract. Co. v. Heitman, 61 N. J. L.-682 303, 377 
 
 Berks Co. v. Reading City Pass. R. Co., 126 Pa. St. 102 37 
 
 Bernhard v. Rochester R. Co., 68 Hun (N. Y.), 369 314, 
 
 Bernstein v. D. D., etc., R. Co., 72 Hun (N. Y.), 46 452 
 
 Bertsch v. Met. St. R. Co., 68 App. Div. (N. Y.) 228 361 
 
 B. E. S. R. Co. V. B. S. R. Co., in N. Y. 132 221 
 
 Bethel v. Cincinnati St. R. Co., 15 Ohio C. C. 381 318. 
 
 Beverage v. N. Y. E. R. Co., 112 N. Y. i 120 
 
 Biddle V. Hestonville, etc., Ry. Co., 112 Pa. St. 551 502 
 
 Bigelow v. Draper, 6 N. Dak. 165 163 
 
 Bigelow V. Railway Co., 27 Wis. 478 168 
 
 Bird V. Holbiook, 4 Bing. 628 521 
 
 Birmingham v. Rochester City & B. R. Co., 137 N. Y. 13. . 263, 278, 423, 
 Birmingham, etc., Co. v. Birmingham St. Ry. Co., 79 Ala. 465.. 27, 59- 
 
 114, 200 
 
 Birmingham Mineral R. Co. v. Jacobs, 92 Ala. 200 7 
 
 Birmingham R. Co. v. Baker (Ala.), 28 So. 87 321 
 
 Birmingham R. & El. Co. v. Baird (Ala.), 30 So. 456 492, 559^ 
 
 Birmingham R. & El. Co. v. Birmingham T. Co. (Ala.), 29 So. 187. 9 
 Birmingham R. & El. Co. v. Birmingham & T. Co., 122 Ala. 349. . 20:j 
 Birmingham R. & El. Co. v. City Stable Co., 119 Ala. 615 ... 317, 324 
 
 Birmingham R. & El. Co. v. Franscomb, 124 Ala. 621 398: 
 
 Birmingham R. & El. Co. v. James, 121 Ala. 120 . . . 470, 473, 483, 524 
 
 Birmingham R. & El. Co. v. Pinkard (Ala.), 26 So. 880 408 
 
 Birmingham R. & El. Co. v. Ward, 124 Ala. 409 410 
 
 Birmingham R. & El. Co. v. Weldman, 119 Ala. 547 481 
 
 Birmingham Tract. Co. v. Birmingham R. & El. Co., 119 Ala. 137. . 136 
 
 Birmingham Tract. Co. v. Tel. Co., 119 Ala. 144 ug 
 
 Birmingham Union R. Co. v. Alexander, 93 Ala. 133 I2g, 
 
 Birmingham Union R. Co. v. Hale, 90 Ala. 8 ccq. 
 
 Bishop V. Bell City R. Co., 92 Wis. 139 302^ ,,g. 
 
TABLE OF CASES. XVll 
 
 Bishop V. Union R. Co., 14 R. I. 314 220, 229, 451 
 
 Bissell V. N. Y. C. R. Co., 25 N. Y. 442 445 
 
 Bitner v. Crosstown St. R. Co., 153 N. Y. 76 301, 325 
 
 Black V. Brooklyn City R. Co., 108 N. Y. 640 461. SS5 
 
 Black V. Brooklyn Heights R. Co., 32 App. Div. (N. Y.) 468 103 
 
 ii3> 133 
 Black V. Canal Co., 22 N. J. Eq. (7 C. E. Green) 130 up- 
 Black V. Delaware, etc.. Canal Co., 24 N. J. Eq. 455 173 
 
 Black V. Second Ave. R. Co., 44 App. Div. (N. Y.) 333 548 
 
 Black V. Staten Isl. El. R. Co., 40 App. Div. (N. Y.) 238 6, 34s 
 
 Black V. Third Ave. R. Co., 2 App. Div. (N. Y.) 387 520 
 
 Black River, etc., Co. v. Barnard, 31 Barb. (N. Y.) 258 32 
 
 Blackswell v. O'Gorman Co. (R. I.), 49 Atl. 28 565 
 
 Blair v. Erie Ry. Co., 66 N. Y. 313 445 
 
 Blake v. Ferris, 5 N. Y. 48 486. 
 
 Blake v. Hinkle, 10 Yerg. (Tenn.) 218 48 
 
 Blake v. Winona, etc., R. Co., 19 Minn. 418 63 
 
 Blakeslee v. Consol. St. R. Co., 112 Mich. 65 300, 339, 344 
 
 Blakeslee v. Consol. St. R. Co., 105 Mich. 462 369? 
 
 Blanchette v. Holyoke St. R. Co., 175 Mass. 51 511, S5& 
 
 Blaney v. El. Tract. Co., 184 Pa. St. 524 368 
 
 Blaschko v. Wurster, 156 N. Y. 437 21, 67 
 
 Blatchford v. Ross, s Abb. Pr. (N. S.) 434 173 
 
 Blate v. Third Ave. R. Co., 44 App. Div. (N. Y.) 163 346 
 
 Bleier v. Bushwick R. Co., 9 St. Rep. (N. Y.) 706 549 
 
 Blesch V. Chicago, etc., Ry. Co., 43 Wis. 183 132 
 
 Block V. Harlem, etc., R. Co., 28 St. Rep. (N. Y.) 495 375 
 
 Block V. Milwaukee St. Ry. Co., 89 Wis. 371 289, 292 
 
 Block V. Salt Lake City R. T. Co. (Utah), 4 Am. Electl. Cas. 189. .. . 63 
 
 Blondel v. St. Paul City R. Co., 66 Minn. 284 518 
 
 Bloxham v. Consumers' O. L. & St. R. Co., 36 Fla. 519 579 
 
 Bloxham v. Florida, C. & P. R. Co., 35 Fla. 625 569, 579 
 
 Bly v. Nassau St. R. Co., 67 N. H. 474 308 
 
 Board of R. Comrs. v. Market St. Ry. Co. (Cal.), 64 Pac. 1065 191 
 
 Boehncke v. Brooklyn City R. Co., 3 Misc. Rep. (N. Y.) 49 430, 
 
 Boentgen v. N. Y. & H. R. Co., 36 App. Div. (N. Y.) 460. . . . 315, 384 
 
 Boerth v. West Side St. R. Co., 87 Wis. 288 370 
 
 Boesen v. Chicago El. T. Co., 31 Chic. Leg. N. 371 358 
 
 Bohmer v. Haffen, 161 N. Y. 390 : 7i, 90, 128, 169, 170 
 
 Boikeno v. New Orleans & C. R. Co., 48 La. Ann. 831 455 
 
 Bolles V. Brimfield, 120 U. S. 759 31 
 
 Bonaparte v. Baltimore, etc., R. Co. (Md.), 49 Am. & Eng. R. Cas. 198. 21 
 
 Bonce v. Dubuque St. R. Co., 53 Iowa, 278 544, 
 
 Booth V. Mister, 7 Car. & P. 66 455, 
 
 ii 
 
XVm TABLE OF CASES. 
 
 Borden v. Atlantic, etc., Ry. Co. (N. J. Ch.), s Am. Electl. Cas. I79- • I33 
 
 Bornscheuer v. Consol. Tract. Co., 198 Pa. St. 332 3SS, 357, 397 
 
 Borough of Shamokin v. S. M. C. EL Co. (Pa.), 46 Atl. 382 lOS 
 
 Borough of Steelton v. E. Harrisburgh Pass. Ry. Co., 2 Dauph. Co. 
 
 Rep. (Pa. C. P.) 313 193 
 
 Bosqui V. Sutro Ry. Co., 131 Cal. 390 414, 4iS, 422, 467, Sig 
 
 Boster v. Chesapeake & Ohio R. Co., 36 W. Va. 318 432 
 
 Boston V. Boston & A. R. Co., 170 Mass. 95 575 
 
 Boston Beer Co. v. Mass., 97 U. S. 25 35, 217, 229 
 
 Boston & L. R. Corp. v. Salem & L. R. Co., 2 Gray (Mass.), i. . 33, 186 
 
 Bowditch V. New Haven, 40 Conn. 503 600 
 
 Bowdle V. Detroit St. R. Co., 103 Mich. 272 483 
 
 Bowen v. Detroit City R. Co., 54 Mich. 496 230, 276 
 
 Bowen v. So. Ry. Co. (S. C), 36 S. E. 590 383 
 
 Bowie V. Greenville St. R. Co., 69 Mass. 196 483 
 
 Bowling Green S. Co. v. Capshaw (Ky.), 64 S. W. 507 560 
 
 Brachfeld v. Third Ave. R. Co., 29 Misc. Rep. (N. Y.) 586. . . . 343, 385 
 
 Bradley v. Borough of Yeadon (Pa. C. P.), 8 Del. Co. Rep. 3 408 
 
 Bradley v. Pharr, 45 La. Ann. 426 138 
 
 Bradley v. Second Ave. R. Co., 34 App. Div. (N. Y.) 284 453, 472 
 
 Bradley v. Second Ave. R. Co., 90 Hun (N. Y.), 419 474 
 
 Bradt v. Benedict, 17 N. Y. 93 48 
 
 Bradwell v. Pittsb. & W. E. Pass. R. Co., 153 Pi. St. 105 ... 264, 364 
 
 Bradwell v. Pittsb. & W. E. Pass. R. Co., 139 Pa. St. 404 546 
 
 Brady v. Consol. Tract. Co. (N. J.), 45 Atl. 805 376 
 
 Brady v. Consol. Tract. Co. (N. J.), 42 Atl. 1054 377 
 
 Brady v. Met. St. Ry. Co., 33 Misc. Rep. (N. Y.) 793 482 
 
 Brady v. Moulton, 61 Minn. 185 c» 
 
 Brainard v. Nassau El. R. Co., 44 App. Div. (N. Y.) 613 460 472 
 
 Braslin v. Somerville H. R. Co., 145 Mass. 64 27? 
 
 Braun v. N. Pac. Ry. Co., 79 Minn. 404 ._g 
 
 Brennan v. Brooklyn Heights R. Co. (N. Y.), 5 Am. Electl. Cas. 
 
 „ 416 4i5_ S16, 526 
 
 Brennan v. Met. St. Ry. Co., 60 App. Div. (N. Y.) 264 389 
 
 Bresky v. Third Ave. R. Co., 16 App. Div. (N. Y.) 83 316 
 
 Brick V. Met. St. Ry. Co., 3S Misc. Rep. (N. Y.) 135 .,.(, 
 
 Brickell V. N. Y. C. & H. R. R. Co., 120 N. Y. 290 '..[]" .L 
 
 Bridgeport v. N. Y., etc., R. Co., 36 Conn. 266 53 
 
 Bridgeton v. Bridgeton, etc., Co., 62 N. J. L. 592 jp_ 
 
 Briggs V. Cape Cod Ship Canal Co., 137 Mass. 71 
 
 Briggs V. Lewiston & A. Horse R. Co., 79 Me. 363 [ j-e 
 
 Briggs V. Minneapolis, 52 Minn. 36 
 
 Brignoli v. Chicago & G. E. Ry. Co., 4 Daly (N. Y.), 182 l^ 
 
 Britton V. Grand Rapids St. R. Co., 90 Mich. 159 '^g^' ^^1 
 
TABLE OF CASES. XIX 
 
 PAGE. 
 
 Broadway Ry. Co. v. Mayor, 49 Hun (N. Y.), 126 230 
 
 Broadway & N. St. R. Co. v. Brooklyn St. Ry. Co. (N. Y.), 10 
 
 W. L. B. 72 94 
 
 Bronson v. Fitzhugh, i Hill (N. Y.), 185 313 
 
 Brooklyn v. Brooklyn City Ry. Co., 47 N. Y. 475 264 
 
 Brooklyn v. Nassau El. Ry. Co., 20 App. Div. (N. Y.) 31 no 
 
 Brooklyn Cent., etc., R. Co. v. Brooklyn City R. Co., 33 Barb. 
 
 (N. Y.) 420 ;. i37 
 
 Brooklyn City, etc., R. Co. v. Coney Isl., etc., R. Co., 35 Barb. 
 
 (N. Y.) 364 13, so 
 
 Brooklyn Crosstown R. Co. v. Brooklyn, 37 Hun (N. Y.), 14 220 
 
 Brooklyn Elev. R. Co. v. Brooklyn, etc., R. Co., 23 App. Div. 
 
 (N. Y.) 29 224, 439 
 
 Brooklyn Heights R. Co. v. Brooklyn, 46 St. Rep. (N. Y.) 299 . .74, yy 
 
 Brooklyn Ry. Co. v. Brooklyn, 152 N. Y. 244 29 
 
 Brooklyn St. R. Co. v. Kelly, 6 Ohio C. C. 155 541 
 
 Brooklyn Steam T. Co. v. City of Brooklyn, 78 N. Y. 524 45, 47 
 
 Brooks V. Lincoln Ry. Co., 22 Nebr. 816 304 
 
 Brown v. Atlanta R. & P. Co. (Ga.), 39 S. E. 71 8, 43, 76, 173, 238 
 
 Brown v. Chicago, etc., R. Co., 137 Mo. 529 144 
 
 Brown v. Du Plessis, 14 La. Ann. 854 26 
 
 Brown v. European & N. A. Ry. Co., 58 Me. 384 529 
 
 Brown v. Harmon, 21 Barb. (N. Y.) 508 390 
 
 Brown v. Kansas City F. T. S. & G. R. Co., 38 Kan. 634 433 
 
 Brown v. Louisville Ry. Co. (Ky.), 53 S. W. 1041 540 
 
 Brown v. Pittsb., A. & M. Tract. Co., 14 Pa. Super. Ct. 594 355 
 
 Brown V. Seattle City R. Co., 16 Wash. 465 456 
 
 Brown v. Wash. & G. R. Co., 25 Wash. L. Rep. 404 458 
 
 Brown v. Wilmington City R. Co., i Penn. (Del.) 332 .... 273, 320, 362 
 
 Brozek v. Steinway Ry. Co., 10 App. Div. (N. Y.) 360 339 
 
 Brozek v. Steinway Ry. Co., 23 App. Div. (N. Y.) 623 316 
 
 Bruce v. Brooklyn H. R. Co., 68 App. Div. (N. Y.) 242 517 
 
 Brunswick & W. R. Co. v. Moore, loi Ga. 684 449 
 
 Brunswick & W. R. Co. v. Waycross, 88 Ga. 68 190 
 
 Brusch v. St. Paul City R. Co., 52 Minn. 512 518 
 
 Brush El. 111. Co. v. Consol. Tel., etc.. Sub. Co., 60 Hun (N. Y.), 
 
 446 253 
 
 Bruss V. Met. St. R. Co., 66 App. Div. (N. Y.) 554 339, 364, 404 
 
 Buck v. People's St. R. Co., 108 Mo. 179 447 
 
 Buckbee v. Third Ave. R. Co., 64 App. Div. (N. Y.) 360 430, 513 
 
 Buckley v. N. Y. & H. R. Co., 43 N. Y. Super. Ct. (11 J. & S.) 187. . 448 
 
 Buckner v. Hart,. 4 Am. Electl. Cas. 21 16, 87, 200 
 
 Budd V. Camden Horse R. Co. (N. J. Ch.), 48 Atl. 1028 141, 219 
 
 Budd V. Meriden El. R. Co., 69 Conn. 272 308 
 
XX TABLE OF CASES. 
 
 PAGE 
 
 Budd V. Multnomah St. Ry. Co., 15 Oreg. 404 9. 57 
 
 Budd V. N. Y., 143 U. S. Si7 435 
 
 Buehler v. Union Tract. Co. (Pa.), 49 Atl. 788 '... 422 
 
 Btiente v. Pittsb., etc., Co., 2 Pa. Super. Ct. 185 271, 281, 325 
 
 Buffalo, B. & L. R. Co. v. N. Y., L. & W. R. Co., 72 Hun (N. Y.), 
 
 587 189 
 
 Buffalo, etc., R. Co. v. Du Bois T. Pass. R. Co. (Pa. C. P.), 24 
 
 Atl. 179 187 
 
 Buffalo, etc., R. Co. v. Dudley, 14 N. Y. 336 40 
 
 Buffet V. Troy & Boston R. Co., 40 N. Y. 168 447 
 
 Buhrens v. D. D., etc., Co., 53 Hun (N. Y.), 571 316 
 
 Bulger V. Albany Ry., 42 N. Y. 459 529 
 
 Bullock V. West Chicago R. T. Co., 23 Chic. Leg. N. 149 79 
 
 Bumbear v. United Tract. Co., 198 Pa. St. 198 451 
 
 Bunyan v. Citizens' R. Co., 127 Mo. 12 372 
 
 Burch V. Baltimore & P. R. Co. (D. C. App.), 22 Wash. L. Rep. 
 
 401 . . . . 50s 
 
 Burkam v. Ohio & M. R. Co., 122 Ind. 344 151 
 
 Burke v. N. Y. C, etc., Co., 73 Hun (N. Y.), 35 487 
 
 Burke v. Union Tract. Co., 198 Pa. St. 497 368 
 
 Burlington v. Burlington St. Ry. Co., 49 Iowa, 144 78 
 
 Burlington v. Penn. R. Co. (Ch.), 56 N. J. Eq. 259 131 
 
 Burlington Gas L. Co. v. Burlington, etc., Co., 165 U. S. 370 60 
 
 Burlington & M. R. Co. v. Lancaster Co. Com., 15 Nebr. 251 575 
 
 Burn V. Chicago, etc., Co., 63 111. App. 438 236 
 
 Burns v. Glens Falls, etc., R. Co., 4 App. Div. (N. Y.) 426 504 
 
 Burns v. Second Ave. R. Co., 21 App. Div. (N. Y.) 521 351 
 
 Burt V. Douglas Co. St. R. Co., 83 Wis. 229 430, 527 
 
 Bush V. St. Joseph, etc., St. R. Co., 113 Mich. 513 30D 
 
 Butchers' Benev. Assn. v. Crescent City L. S. L. & S. H. Co., 83 
 
 U. S. (16 Wall.) 36 ^...'.... 35 
 
 Butelli V. Jersey City H. & R. El. Ry. Co., 59 N. J. L. (30 Vroom) 
 
 302 372, 380 
 
 Butler V. Steinway R. Co., 87 Hun (N. Y.), 10 464, 532 
 
 Butler V. Walker, 80 111. 345 ' ^ 
 
 Butler's Appeal, 73 Pa. St. 448 C73 
 
 Butte, etc., Co. v. Montana Union R. Co., 16 Mont. 504 144 
 
 Button V. Hudson R. Co., 18 N. Y. 258 521, 545 
 
 Buys v. Third Ave. R. Co., 45 App. Div. (N. Y.) 11 306, 321 
 
 Byington v. St. Louis R. Co., 147 Mo. 673 . jg 
 
 Byrne v. Brooklyn City & Newtown R. Co., 6 Misc. Rep. (NY) 
 
 26° ;...'. 420 
 
 Byrne v. Chicago, etc., Co., 63 111. App. 438 jog 
 
 Byrne v. Eastman's Co., 163 N. Y. 461 ,,_ 
 
TABLE OF CASES. XXI 
 
 PAGE 
 
 Byrne v. N. Y. C, etc., Co., 83 N. Y. 621 376 
 
 Byron v. Lynn & B. R. Co., 177 Mass. 303 428, 543 
 
 Bywaters v. Paris, etc., Co., 73 Tex. 624 47 
 
 C. 
 
 Cadigan v. Brown, 120 Mass. 493 154 
 
 Cain V. Chicago, etc., R. Co., 54 Iowa, 255 132 
 
 Cain V. Macon Consol. St. R. Co., 97 Ga. 298 384 
 
 Cain V. Peoples' Pass. R. Co., 181 Pa. St. 53 389 
 
 Cairo & Vincennes R. Co. v. People, 92 III. 170 113 
 
 Calderwood v. N. Birmingham St. R. Co. (Ala.), 11 So. 66 435 
 
 Caldwell v. N. J. S. P. Co., 47 N. Y. 282 494 
 
 California & N. R. Co. v. Mecartney, 104 Cal. 616 580 
 
 Call V. Portsmouth, K. & Y. St. R. Co. (N. H.), 45 Atl. 405. 259, 463, 549 
 
 Callahan v. Phila. Tract. Co., 184 Pa. St. 425 326 
 
 Callary v. Easton, etc., Co., 185 Pa. St. 176 302 
 
 Calumet El. St. R. Co. v. Grosse, 70 III. App. 381 289 
 
 Calumet El. St. R. Co. v. Jennings, 83 111. App. 612 519 
 
 Calumet El. St. R. Co. v. Lewis, 168 111. 249 294 
 
 Calumet El. St. R. Co. v. Lynholm, 70 111. App. 371 325 
 
 Calumet El. St. R. Co. v. Van Pelt, 68 111. App. 582 302 
 
 Cambal v. Met. St. R. Co., 82 Ga. 320 238 
 
 Cambria Iron Co. v. Union Trust Co., 154 Ind. 291 254 
 
 Camden & A. R. Co. v. Atlantic City, 58 N. J. L. 316 579 
 
 Camden, etc., Ry. Co. v. Preston (N. J. App.), 6 Am. Electl. Cas. 
 
 523 340, 361 
 
 Camden G. & W. R. Co. v. Young, 60 N. J. L. 193 456 
 
 Camden H. R. Co. v. Citizens' Coach Co., 31 N. J. Eq. 525 229 
 
 Camden H. R. Co. v. W. Jersey Tract. Co. (N. J. Sup.), 32 Atl. 
 
 72 76 
 
 Cameron v. Union Trunk Line, 10 Wash. 507 515 
 
 Campbell v. Consol. Tract. Co. (Pa.), 50 Atl. 829 512 
 
 Campbell v. Los Angeles Ry. Co. (Cal.), (iy Pac. 50 484 
 
 Campbell v. New Orleans City R. Co.. 104 La. 183 302 
 
 Canal & C. St. Ry. Co. v. Crescent City Ry. Co., 41 La. Ann. 561. . 114 
 
 162, 183 
 
 Canal, etc., R. Co. v. City of New Orleans, 39 La. Ann. 709 124 
 
 Canal, etc., R. Co. v. Orleans R. Co., 44 La. 54 186 
 
 Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146. . 136, 239 
 
 Canedo v. New Orleans & C. R. Co., 52 La. Ann. 2149 355 
 
 Cannon v. Pittsb. & B. Tract. Co., 194 Pa. St. 159 345 
 
 Cape May v. Cape May, etc., R. Co., 60 N. J. L. 224 208, 244 
 
 Capital Tract Co. v. Lusby, 26 Wash. L. Rep. 23 366 
 
 Cardonner v. Met. St. Ry. Co., 38 App. Div. (N. Y.) 597 382 
 
XXU TABLE OF CASES. 
 
 PAGE 
 
 Carii V. Stillwater St. R. Co., 28 Minn. 373 i, 28, 14S 
 
 Carli V. Union Depot St. Ry., etc., Co., 32 Minn. loi 168 
 
 Carlisle v. Des Moines, etc., R. Co., 99 Iowa, 345 167 
 
 Carlson v. Lynn & P. Ry. Co., 172 Mass. 388 373^ 
 
 Carlson v. P. B. Co., 132 N. Y. 273 535 
 
 Carney v. Cincinnati St. Ry. Co., 8 Ohio S. & C. P. Dec. 587 446 
 
 Carpenter v. N. Y. C. R. Co., 24 N. Y. 65s I45 
 
 Carr v. Toledo Tract. Co., 19 Ohio C. C. 281 441 
 
 Carrico v. W. Va., C. & P. R. Co., 35 W. Va. 389 521. 525 
 
 Carroll V. Peoples' R. Co., 60 Mo. 465 51& 
 
 Carroll v. Staten Isl. R. Co., 58 N. Y. 126 418 
 
 Carruth v. Texas & P. R. Co., 45 La. Ann. 1228 514 
 
 Carson v. Central R. Co., 35 Cal. 325 153, 244 
 
 Carson v. Fed. St., etc., R. Co., 147 Pa. St. 219 367, 368 
 
 Carter v. Columbia, etc., R. Co., 19 S. C. 20 546 
 
 Cartwright v. Chicago Grand Trunk Ry. Co., 52 Mich. 606 426 
 
 Case V. County of Cayuga, 88 Hun (N. Y.), 59 80 
 
 Casper v. D. D., etc., R. Co., 67 St. Rep. (N. Y.) 805 259 
 
 Casper v. D. D., etc., R. Co., 56 App. Div. (N. Y.) 372 277, 394 
 
 Caspers v. D. D. & E. B. R. Co., 22 App. Div. (N. Y.) 156 476 
 
 Cass V. Third Ave. R., Co., 20 App. Div. (N. Y.) 591 344, 358 
 
 Cassidy v. Angel, 12 R. I. 449 545 
 
 Cassidy v. Atlantic Ave. R. Co., 9 Misc. Rep. (N. Y.) 275 470, 515 
 
 Caugh V. North Ave. R. Co. (Md.), 33 Atl. 463 32 
 
 Cauley v. La Crosse City R. Co., '106 Wis. 239 297, 370 
 
 Cavanagh v. Met. St. Ry. Co., 70 App. Div. (N. Y.) i 542 
 
 Caveny v. Neely, 43 S. C. 70 427 
 
 Cawley v. La Crosse City Ry. Co., loi Wis. 145 341, 367 
 
 Cedar Rapids v. Cedar Rapids, etc., R. Co., 108 Iowa, 406 263 
 
 Cedar Rapids & M. C. R. Co. v. Cedar Rapids, 106 Iowa, 476 584 
 
 Central City H. R. Co. v. Fort Clark H. R. Co., 81 111. S33 186 
 
 Central Crosstown R. Co. v. Met. St. Ry. Co., 17 Misc. Rep. (N. Y.) 
 
 716 94, 108 
 
 Central Crosstown R. Co. v. Met. St. Ry. Co., 16 App. Div. (N. Y.) 
 
 229 66, 117 
 
 Central, etc., Supply Co. v. Wilkesbarre, etc., Ry. Co., 11 Pa. Co. 
 
 Ct. Rep. 417 288, 290 
 
 Central Nat. Bank v. Worcester H. R. Co., 13 Allen (Mass.), 105... 7 
 
 Central of Ga. Ry. Co. v. Brown (Ga.), 38 S. E. 989 492 493 
 
 Central of Ga. Ry. Co. v. Lippman, no Ga. 665 414 aac 
 
 Central Pass. R. Co. v. Chatterson, 14 Ky. L. Rep. 663 320 161 
 
 Central Pass. R. Co. v. Rose, 15 Ky. L. Rep. 209 453 ^cn 
 
 Central R. Co. v. Brewer, 78 Md. 394 -q- 
 
 Central R. Co. v. Knowles, 191 111. 241 .^g 
 
TABLE OF CASES. XXlll 
 
 PAGE 
 
 Central R. Co. v. Peacock, 69 Md. 257 496 
 
 Central R. Co. v. Smith, 74 Md. 212 415 
 
 Central R. Co. v. State, 54 Ga. 401 41 
 
 Central R. & Bkg. Co. v. Roberts, 91 Ga. 513 505 
 
 Central R. & D. Co. v. Pittsburg, 104 Pa St. 522 13 
 
 Central R. & E. Co.'s Appeal, 67 Conn. 197 13, 92, 105 
 
 Central Vermont R. Co. v. Bateman, 26 U. S. App. 584 427 
 
 Chamberlain v. Walter (C. C. D. S. C), 60 Fed. 788 571 
 
 Chapman v. Douglas Co., 107 U. S. 348 120 
 
 Chapman v. Syracuse R. T. R. Co., 25 Misc. Rep. (N. Y.) 626 182 
 
 Chapman v. Zanesville St. R. Co. (C. P.), 27 Ohio L. J. 70 329, 330 
 
 Charles River Bridge v. Warren Bridge, 7 Pick. (Mass.) 344 112 
 
 Charles River Bridge Proprs. v. Warren Bridge Proprs., 36 U. S. 
 
 (11 Pet.) 420 34 
 
 Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386 35, 593 
 
 Charleston, etc., Co. v. Comstock, 36 W. Va. 263 163 
 
 Charleston v. Postal Tel. Cable Co. (S. C. C. P.), 9 Ry. & Corp. 
 
 L. J. 129 569 
 
 Charlton v. Newcastle, etc., R. Co., 5 Jur. (N. S.) 1096 173 
 
 Chartrand v. Southern R. Co., 57 Mo. App. 425 522 
 
 Chase v. Jamestown St. R. Co., 38 St. Rep. (N. Y.) 954. . 428, 429, 483 
 
 Chase v. Michigan Tel. Co. (Mich.), 80 N. W. 717 170 
 
 Chattanooga El. Ry. Co. v. Mingle, 103 Tenn. 667 382 
 
 Chattanooga R. & C. R. Co. v. Liddell, 85 Ga. 482 275 
 
 Cheraw, etc., R. Co. v. Garland, 14 S. C. 64 45 
 
 Cheraw, etc., R. Co. v. White, 14 S. C. 61 45 
 
 Cherokee, etc., Coal Co. v. Dixon, 55 Kan. 70 550 
 
 Cherry v. Kansas City, etc., R. Co., 52 Mo. App. 499 478, 479 
 
 Chesapeake Co. v. Baltimore, etc., R. Co., 4 Gill & J. (Md.) i 44 
 
 Chesapeake & Ohio R. Co. v. Davis (Ky.), 58 S. W. 698 565 
 
 Chesapeake & Ohio R. Co. v. Langs, Admr., 100 Ky. 221 469 
 
 Chesapeake & Ohio R. Co. v. Miller, 114 U. S. 176 55, 574 
 
 Chester v. Chester T. Co., 5 Pa. Dist. 601 232 
 
 Chester Tract. Co. v. Phila., etc., Co. (C. P.), 6 Del. Co. Rep. 481.. 47 
 
 Chester Tract. Co. v. Phila., etc., Co., 188 Pa. St. 105 190 
 
 Chevra Bnai Israel v. Chevra Bikur Cholim, 24 Misc. Rep. (N. Y.) 
 
 189 172 
 
 Chicago V. Baer, 41 111. 306 574 
 
 Chicago V. Chicago, etc., R. Co., 105 111. "jz 48, 123, 247 
 
 Chicago V. Hayward, 176 111. 130 165 
 
 Chicago V. Illinois Steel Co., 66 111. App. 561 49 
 
 Chicago V. Sheldon, 76 U. S. 50 257 
 
 Chicago & A. R. Co. v. Byrum, 153 III. 131 480, 523 
 
 Chicago & A. R. Co. v. Dumser, 161 111. 190 415 
 
XXIV TABLE OF CASES. 
 
 Chicago & A. R. Co. v. Fisher, 31 111. App. 36 416, 4® 
 
 Chicago & A. R. Co. v. McDonnell, 91 111. App. 488 S09 
 
 Chicago & A. R. Co. v. People, 98 111. 350 579 
 
 Chicago & A. R. Co. v. People, Cooley, 129 111. 571 S7S 
 
 Chicago, B. & K. C. R. Co. v. Missouri, 120 U. S. 569 573 
 
 Chicago, B., L. & Q. R. Co. v. Griffin, 68 111. 499 S03 
 
 Chicago, B. & Q. R. Co. v. Hyatt, 48 Nebr. 161 523 
 
 Chicago, B. & Q. R. Co. v. West Chicago St. R. Co., 156 111. 255. 136, 187 
 
 Chicago City Ry. Co. v. Anderson, 93 111. App. 419 512, 564 
 
 Chicago City Ry. Co. v. Bucholz, 90 111. App. 440 553 
 
 Chicago City Ry. Co. v. Burrell, 70 111. App. 60 416 
 
 Chicago City Ry. Co. v. City of Chicago, 90 111. 573 580 
 
 Chicago City Ry. Co. v. Consodine, 50 111. App. 471 468, 498 
 
 Chicago City Ry. Co. v. Cooney, 95 111. App. 471 405, 560 
 
 Chicago City Ry. Co. v. Delcourt, 35 111. App. 430 459 
 
 Chicago City Ry. Co. v. Engel, 35 111. App. 490 415 
 
 Chicago City Ry. Co. v. Fennimore, 78 111. App. 478 354 
 
 Chicago City Ry. Co. v. Gregg, 69 111. App. "jy 485 
 
 Chicago City Ry. Co. v. Mager, 185 111. 336 406 
 
 Chicago City Ry. Co. v. Meehan, TJ 111. App. 215 523 
 
 Chicago City Ry. Co. v. Olis (111.), 61 N. E. 459 404 
 
 Chicago City R. Co. v. Pelletier, ^-^ 111. App. 455 504 
 
 Chicago City Ry. Co. v. Pelletier, 134 111. 120 502, 503 
 
 Chicago City Ry. Co. v. People, 73 111. 541 47, 54, 55, 56, 128, 238 
 
 Chicago City Ry. Co. y. Tuohy, 95 111. App. 314 303, 406 
 
 Chicago City Ry. Co. v. Wall, 93 111. App. 411 327 
 
 Chicago City Ry. Co. v. Wilcox, 138 111. 370 377 
 
 Chicago City Ry. Co. v. Wilcox (111.), 24 N. E. 419 528 
 
 Chicago City Ry. Co. v. Young, 62 111. 238 468 
 
 Chicago & C. Terrainal R. Co. v. Whiting, etc., St. R. Co., 139 Ind. 
 
 _.^97 187, 333 
 
 Chicago Dock, etc., Co. v. Garrity, 115 111. 155 24 
 
 Chicago & E. I. R. Co. v. Casazza, 83 III. App. 421 497 
 
 Chicago & E. I. R. Co. v. Hines, 183 111. 482 ..!".'. 335 
 
 Chicago, etc., R. Co. v. Chicago, 132 111. 372 163 
 
 Chicago, etc., R. Co. v. Chicago & Evanston R. Co., 112 111. 589 168 
 
 Chicago, etc., R. Co. v. Clough, 134 111. 586 512 
 
 Chicago, etc., R. Co. v. Dresel, no 111. 89 167 i68 
 
 Chicago, etc., R. Co. v. Minnesota, 134 U. S. 418 ' 41 
 
 Chicago, etc., R. Co. v. Myers (C. C. App., 8th C), 49 U. S. App. 
 
 279 
 
 ' ^ 523 
 
 Chicago, etc., R. Co. v. Newton, 36 Iowa, 299 j- -_ 
 
 Chicago, etc., R. Co. v. Stickman, 95 111. App. 4 " ' ^g^ 
 
 Chicago, etc., R. Co. v. West Chicago St. R. Co., 156 111. 235' . ' .. ! ' 138 
 
TABLE OF CASES. XXV 
 
 PAGE 
 
 Chicago, etc., R. Co. v. Young, 58 Nebr. 678 SH 
 
 Chicago Genl. Ry. Co. v. Carroll, 91 111. App. 356 315 
 
 Chicago Genl. Ry. Co. v. Chicago City Ry. Co., 62 111. App. 502. ... 115 
 Chicago Genl. Ry. Co. v, Chicago City Ry. Co., 87 111. App. 17. . 113, 202 
 
 280 
 Chicago Genl. Ry. Co. v. City R. Co. (111. C. C), 27 Chic. Leg. N. 
 
 423 177 
 
 Chicago Genl. Ry. Co. v. Kriz, 94 111. App. 277 293 
 
 Chicago Genl. Ry. Co. v. McNamara, 94 111. App. 188 563 
 
 Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339 222 
 
 Chicago, M. & St. P. R. Co. v. Cass Co., 8 N. Dak. 18 579 
 
 Chicago, M. & St. P. R. Co. v. Lowell, 151 U. S. 209 435 
 
 Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 18 221 
 
 Chicago & N. W. R. Co. v. EUson, 113 Mich. 30 582 
 
 Chicago & N. W. R. Co. v. Milwaukee, etc., R. Co., 95 Wis. 561 140 
 
 Chicago & N. W. Ry. Co. v. Oshkosh, A. & B. W. R. Co., 107 Wis. 
 
 192 158 
 
 Chicago Office Bldg. v. Lake St. El. Ry., 87 III. App. 594 137 
 
 Chicago & P. R. Co. v. Hildebrand, 136 111. 467 582 
 
 Chicago, P. & St. L. R. Co. v. Lewis, 145 111. 67 422 
 
 Chicago, S. F. & C. R. Co. v. Bates, 109 Mo. 53 163 
 
 Chicago, S. F. & C. R. Co. v. Eubanks, 109 Mo. 54 163 
 
 Chicago, S. F. & C. R. Co. v. Miller, 106 Mo. 458 163 
 
 Chicago, St. L. & N. O. R. Co. v. Kentwood, 49 La. Ann. 931 539 
 
 Chicago St. Ry. Co. v. Tuohy, 95 III. App. 314 377 
 
 Chicago St. R. Co. V. Volk, 45 III. 175 335 
 
 Chicago & S. S. R. T. R. Co. v. N. Trust Co., 90 111. App. 460 no 
 
 Chicago, W. D., R. Co. v. Becker, 128 111. 545 550 
 
 Chicago, W. D., R. Co. v. Rend, 6 III. App. 243 ; 342 
 
 Chicago, W. D., R. Co. v. Ryan, 131 III. 474 ' 529 
 
 Chilton V. Cent. Tract. Co., 152 Pa. St. 425 375 
 
 Chisholm v. Seattle El. Co. (Wash.), 69 Pac. 601 Si5 
 
 Choquette y. So. El. Ry. Co., 80 Mo. App. 515 548, 553 
 
 Chouquette v. So. El. Ry. Co., 152 Mo. 257 211 
 
 Christ Church v. Philadelphia Co., 65 U. S. (24 How.) 300 35 
 
 Christensen v. Union Trunk Line, 6 Wash. 75 300, 356 
 
 Christie v. Galveston City Ry. Co. (Tex. Civ. App.), 39 S. W. 638... 463 
 Christopher & Tenth St. R. Co. v. Mayor, i Abb. N. C. (N. Y.) 79. . 232 
 
 Cincinnati v. Cincinnati St. R. Co., 31 Ohio L. J. 308 91 
 
 Cincinnati v. Mt. Auburn Cable R. Co. (Cin. Super. Ct.), 28 Ohio 
 
 L. J. 276 106 
 
 Cincinnati Inc. Plane R. Co. v. Cincinnati, 52 Ohio St. 609. . 20, 95, 125 
 
 596 
 Cincinnati Inc. Plane R. Co. v. Cincinnati, etc., Tel. Assn. (Ohio), 
 
 3 Am. Electl. Cas. 443 42, Si, 136, 288 
 
XXvi TABLE OF CASES. 
 
 Cincinnati, etc., R. Co. v. McMullen, 117 Ind. 439 • • • S44 
 
 Cincinnati, etc., St. Ry. Co. v. Cincinnati, H. & I. R. Co. (Ohio), 
 
 12 O. C. D. 113 8, 191 
 
 Cincinnati, H. & B. R. Co. v. Nolan, 8 Ohio C. C. 347 531 
 
 Cincinnati St. Ry. Co. v. Cincinnati, 8 Ohio N. P. 80 233, 237 
 
 Cincinnati St. Ry. Co. v. Jenkins, 20 Ohio C. C. 256 3S7 
 
 Cincinnati St. Ry. Co. v. Murray, 3 Ohio Dec. 72 509 
 
 Cincinnati St. Ry. Co. v. Smith, 29 Ohio St. 291 114 
 
 Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 269, 354, 371, 485 
 
 Cincinnati St. Ry. Co. v. Whitcomb (C. C. App., 6th C), 66 Fed. 915. 366 
 
 384 
 Cit 
 Cit 
 Citi 
 Citi 
 
 Cit: 
 Cit 
 Citi 
 Citi 
 Cit 
 Cit 
 Cit 
 Citi 
 Cit 
 
 Cit: 
 Cit: 
 
 Citi 
 Citi 
 Citi 
 Cit 
 Cit 
 Cit 
 Cit 
 Citi 
 Citi 
 Cit 
 
 Cit: 
 
 Citi 
 
 Citi 
 Cit^ 
 Citi 
 
 zens' El. R., L. & P. Co. v. County Comrs., 56 Ohio St. i . . 108, 213 
 
 zens' H. R. Co. v. Belleville, 47 111. App. 388 105 
 
 zens' Pass. R. Co. v. Ketchum, 122 Pa. St. 228 261 
 
 zens' Pass. R. Co. v. Pittsburgh, 104 Pa. St. 522 7 
 
 zens' R. Co. v. Ford (Tex. Civ. App.), 60 S. W. 680 371 
 
 zens' R. Co. v. Washington (Tex. Civ. App.), 58 S. W. 1042 388 
 
 zens' R. T. Co. v. Dew, 100 Tenn. 317 342 
 
 zens' R. T. Co. v. Seigrist, 96 Tenn. 119 357, 358 
 
 zens' St. R. Co. v. Africa, loo Tenn. 26 15, 26, 65, 91 
 
 zens' St. R. Co. v. AUbright, 14 Ind. App. 433 369 
 
 zens' St. R. Co. v. Ballard, 22 Ind. App. 151 259, 264 
 
 zens' St. R. Co. v. Carey, 56 Ind. 396 529 
 
 zens' St. R. Co. v. City R. Co. (Ind.), 64 Fed. 647 96, 177 
 
 zens' St. R. Co. v. Com. Council of Detroit (iMich.), 85 N. W. 96. 583 
 
 zens' St. R. Co. v. Damm, 25 Ind. App. 511 391 
 
 zens' St. R. Co. v. Helvie, 22 Ind. App. 515 368 
 
 zens' St. R. Co. v. Hoflfbauer, 23 Ind. App. 614 475 
 
 zens' St. R. Co. v. Holmes, 19 Tex. Civ. App. 266 298, 355 
 
 zens' St. R. Co. v. Howard, 102 Tenn. 475 259, 318 
 
 zens' St. Ry. Co. v. Huflfer (Ind. App.), 60 N. E. 316 540 
 
 zens' St. R. Co. v. Jones (Ark.), 34 Fed. 579 28, 37, 66, 200, 238 
 
 zens' St. R. Co. v. Lowe (Ind. App.), 5 Am. Electl. Cas. 436 330 
 
 zens' St. Ry. Co. v. Merl (Ind. App.), 59 N. E. 491.. 446, 462, 488 
 
 zens' St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 169 116 
 
 zens' St. Ry. Co. v. Shepard (Ind. App.), 59 N. E. 340 483 
 
 zens' St. R. Co. v. Shepherd (Tenn.), 64 S. W. 710 301 
 
 zens' St. Ry. Co. v. Stockdell (Ind.), 62 N. E. 21 551 
 
 zens' St. R. Co. v. Twiname, iii Ind. 587 120 41c 426 
 
 zens' St. R. Co. v. Wagner (Ind. App.), 57 N. E. 49 540 
 
 zens' St. R. Co. v. Willoeby, 134 Ind. 563 ^~ 
 
 City El. R. Co. v. Conery, 61 Ark. 381 270, 201 
 
 City El. R. Co. V. Shropshire, no Ga. 33 ... 
 
 City of Atlanta v. Gale City St. R. Co., 80 Ga. 276 . . . ' ' g-g 
 
TABLE OF CASES. XXvii 
 
 PAGE 
 
 City of .Brooklyn v. Nassau El. Ry. Co., 38 App. Div. (N. Y.) 365. . 208 
 
 City of Chicago v. Baker, 95 111. App. 413 560 
 
 City of Council Bluffs v. Omaha & C. B., etc., Co. (Iowa), 86 N. W. 
 
 222 256 
 
 City of Elmira v. Maple Ave. R. Co., 4 N. Y. Supp. 942 128 
 
 City of Hartford v. Hartford St. Ry. Co. (Conn.), 47 Atl. 330 240 
 
 City of Montreal v. Montreal City R. Co. (Rap. Jud., Que.), 19 C. S. 
 
 504 421 
 
 City of Newark v. State Board of Taxation (N. J. Sup.), 49 Atl. 522. 580 
 
 City of New Orleans v. King, 104 La. 735 174 
 
 City of New Orleans v. St. Charles St. R. Co., 28 La. Ann. 497 577 
 
 City of New York v. N. Y. & H. R. Co., 31 N. Y. Supp. 147 226 
 
 City of New York v. Union R. Co., 31 Misc. Rep. (N. Y.) 451 226 
 
 City of Philadelphia v. Continental Pass. R. Co., 11 Phila. (Pa.) 315. 239 
 City of Philadelphia v. Ridge Ave. Pass. R. Co., 142 Pa. St. 484. ... 170 
 
 City of Reading v. Union Tract. Co., 24 Pa. Co. Ct. 629 258 
 
 City of Rochester v. Bell Tel. Co., 52 App. Div. (N. Y.) 6 250 
 
 City of Rochester v. Simpson, 134 N. Y. 414 229 
 
 City of Rochester v. West, 164 N. Y. 510 229 
 
 City of Salem v. Webster (111.), 61 N. E. 323.. 560 
 
 City of St. Louis v. Missouri R. Co., 13 Mo. App. 524 38, 94 
 
 City of Yonkers v. Yonkers Ry. Co., 51 App. Div. (N. Y.) 271 209 
 
 City R. Co. V. Citizens' St. R. Co., 52 N. E. 157 124 
 
 City R. Co. V. Citizens' St. R. Co., 166 U. S. 557. 96, iii, 112, 115, 125, 203 
 
 City R. Co. V. Thompson, 28 Tex. Civ. App. 16 294 
 
 City & Sub. R. Co. v. Savannah, 77 Ga. 731 232 
 
 Claflin V. Meyer, 75 N. Y. 260 281 
 
 Clancy v. Troy & L. R. Co., 88 Hun (N. Y.), 496 357, 362 
 
 Clarke v. Blackmar, 47 N. Y. 150 24 
 
 Clark V. Dasso, 34 Mich. 86 143 
 
 Clark V. Middletown-Goshen Tract. Co. (N. Y.), 6 Am. Electl. Cas. 
 
 148 151 
 
 Clark V. Nassau El. R. Co., 9 App. Div. (N. Y.) 51 273 
 
 Clark V. Railroad Co., 127 Mo. 210 519 
 
 Clausen, etc., Brewing Co. v. B. & O. Tel. Co. (N. Y.), 2 Am. Electl. 
 
 Cas. 210 253 
 
 Clearwater v. Meredith, i Wall. (U. S.) 39 173 
 
 Cleghorn v. N. Y. C, etc., R. Co., 56 N. Y. 44 494 
 
 Clement v. Cincinnati, 16 W. L. B. 355 3, 12S 
 
 Clements v. La. El. L. Co., 44 La. Ann. 692 537 
 
 Clemmens El. Mfg. Co. v. Walton, 173 Mass. 286 118 
 
 Cleveland v. Bangor, 87 Me. 259 418 
 
 Cleveland v. Bangor St. R. Co., 86 Me. 232 309, 331 
 
 Cleveland V.Cleveland El. Ry. Co. (C. P.), 3 Ohio Dec. 92 213 
 
XXviil TABLE OF CASES. 
 
 Cleveland, C, C. & St. L. R. Co. v. Backus, 133 Ind. 513 S70, 571 
 
 Cleveland, C, C. & St. L. R. Co. v. Moneyhun, 146 Ind. 147 476 
 
 Cleveland, C, C. & St. L. R. Co. v. Quillen, 22 Ind. App. 496 441 
 
 Cleveland City Ry. Co. v. City of Cleveland (C. C. N. D., E. D.), 12 
 
 O. C. D. 63s 106, no 
 
 Cleveland City R. Co. v. Cleveland (C. C. N. D., Ohio), 94 Fed. 385. 436 
 
 Cleveland City R. Co. v. Rqebeck, 22 Ohio C. C. 99 502 
 
 Cleveland, P. & E. R. Co. v. Nixon, 21 Ohio C. C. 736 282, 381 
 
 Clitford V. Dam, 81 N. Y. 52 239 
 
 Clinch V. Financial Corp. L. R., 5 Eq. 460 173 
 
 Cline V. Crescent City R. Co., 43 La. Ann. 327 260, 275, 343 
 
 Cline V. Crescent City R. Co., 41 La. Ann. 1031 242 
 
 Cline V. Crescent City R. Co., 23 La. Ann. 729 394 
 
 Cline V. El. Tract. Co., 181 Pa. St. 276 325 
 
 Clyde V. Richmond, etc., R. Co., 57 Fed. 439 222 
 
 Coal Co. V. FuUbright, 7 Ohio L. J. 187 540 
 
 Coasting Co. v. Tolson, 139 U. S. 557 545 
 
 Coast Line R. Co. v. Cohen, 50 Ga. 451 131 
 
 Coates v. New York, 7 Cow. (N. Y.) 585 159 
 
 Cobb V. Boston El. Ry. (Mass.), 60 N. E. 476 499 
 
 Cobb V. Lindell R. Co., 149 Mo. 135 481, 522 
 
 Cobb V. Met. St. Ry. Co., 56 App. Div. (N. Y.) 187 389 
 
 Coddington v. Brooklyn C. T. R. Co., 102 N. Y. 66 417, 510 
 
 Coe V. Columbus, etc., R. Co., 10 Ohio St. 372 55, 119 
 
 Cogswell V. West St. & N. S. El. R. Co., s Wash. 46. . 275, 283, 429, 475 
 
 479, 525 
 
 Cohen v. Met. St. R. Co., 68 N. Y. Supp. 830 340 
 
 Cohen v. Met. St. R. Co., 71 N. Y. Supp. 268 299, 344, 356, 357 
 
 Cohen V. West Chicago St. R. Co. (C. C. App., 7th C), 60 Fed 698. 454 
 
 Coleman -v. Second Ave. R. Co., 38 N. Y. 201 25, 63 
 
 Coleman v. Second Ave. R. Co., 114 N. Y. 6og 424, 524 
 
 Coll V. Toronto R. Co. (Can.), 25 Ont. App. 55 400 
 
 Collins V. Carbondale, 5 Pa. Dist. 18 239 
 
 Collins V. City of Janesville (Wis.), 87 N. W. 241 561 
 
 Collins V. So. Boston H. R. Co., 142 Mass. 301 ^29 
 
 Colonial City Tract. Co. v. Kingston City R. Co., 153 N. Y. 1540. 19, 74 
 
 75, 181 
 
 ICO 
 
 163 
 150 
 
 Colonial City Tract. Co. v. Kingston R. Co., 154 N. Y. 493. . 36, 80 
 
 Colorado C. R. Co. v. Allen, 13 Colo. 229 
 
 Colrick V. Swinburne, 105 N. Y. 503 
 
 Colt V. Sixth Ave. R. Co., 33 N. Y. Super. Ct. (i J. & S.) 189. . 482, ^3 
 
 Colter V. Cincinnati St. Ry. Co., 18 Ohio C. C. 322 ' ,-. 
 
 Columbia & P. S. R. Co. v. Chilberg, 6 Wash. 612. . /^ ..,][][[[[' ' l7^ 
 Columbus V. Columbus St. R. Co., 45 Ohio St. 98 2-0 
 
TABLE OF CASES. XXIX 
 
 PAGE 
 
 Columbus, C. & I. C. R. Co. v. Powell, 40 Ind. 37 530 
 
 Columbus S. R. Co. v. Wright, 89 Ga. 574 572 
 
 Commissioners, etc. v. Moesta, 91 Mich. 149 159 
 
 Commissioners v. South Bend, etc., R. Co., 118 Ind. 68 239 
 
 Commonwealth v. Bank, 28 Pa. St. 383 43 
 
 Commonwealth v. Bonsall (Dousall), 3 Whart. (Pa.) 559 39 
 
 Commonwealth v. Cullen, 13 Pa. St. 133 112 
 
 Commonwealth v. D., etc., R. Co., 3 Dauph. Co. Rep. 249 586 
 
 Commonwealth v. Edgerton Coal Co., 3 Dauph. Co. Rep. 236 586 
 
 Commonwealth v. Erie, etc., R. Co., 2y Pa. St. 339 245 
 
 Commonwealth v. Essex Co., 79 Mass. 239 40 
 
 Commonwealth v. Fayette Co. R. Co., 55 Pa. St. 452 39 
 
 Commonwealth v. J. & F. Ry. Co., 3 Dauph. Co. Rep. 214 585 
 
 Commonwealth v. Lake Shore & M. S. R. Co., 3 Dauph. Co. Rep. 
 
 172 S86 
 
 Commonwealth v. Lykons Water Co., no Pa. St. 391 46 
 
 Commonwealth v. Mayor, 185 Pa. St. 623 252 
 
 Commonwealth v. McCaully, 2 (20) Pa. Dist. 63 14 
 
 Commonwealth v. Middletown El. R. Co. (Pa.), 2 Dauph. Co. Rep. 
 
 316 130 
 
 Commonwealth v. Mill Creek Coal Co., 157 Pa. St. 524 571 
 
 Commonwealth v. Nashville, C. & St. L. R. Co., 14 Ky. L. Rep. 442. 574 
 
 Commonwealth v. NationalOil Co., 157 Pa. St. 563 571 
 
 Commonwealth v. Old Colony, etc., R. Co., 14 Gray (Mass.), 93. 131, 24s 
 
 Commonwealth v. Philadelphia Co., 3 Dauph. Co. Rep. 259 586 
 
 Commonwealth v. Shamokin S. L. R. Co. (Pa. C. P.), 3 Dauph. 
 
 Co. Rep. 168 , 585 
 
 Commonwealth v. Sharon Coal Co. (Pa. C. P.), 3 Dauph. Co. Rep. 
 
 243 S86 
 
 Commonwealth v. Smith, 10 Allen (Mass.), 448 117 
 
 Commonwealth v. Sycamore St. Ry. Co. (Pa.), 3 Dauph. Co. Rep. 95. 178 
 
 Commonwealth v. Temple, 14 Gray (Mass.), 69 318 
 
 Commonwealth v. Wilkesbarre, etc., R. Co., 127 Pa. St. 278 240 
 
 Compagnie, C. P., a Pass. v. Dufresne, M. L. Rep., 7 Q. B. 214 378 
 
 Conabeer v. N. Y. C. & H. R. R. Co., 156 N. Y. 474 iSi 
 
 Concord v. Concord H. R. Co., 65 N. H. 630 28, 240 
 
 Condran v. Chicago, M. & St. P. R. Co., 67 Fed. 522 448 
 
 Coney Isl., F. H. & B. R. Co. v. Kennedy, 15 App. Div. (N. Y.) 
 
 538 40, 60, 77, 247 
 
 Conlon V. Met. St. Ry. Co., 34 Misc. Rep. (N. Y.) 394 S6S 
 
 Connelly v. Railroad Co. (N. J.), 5 Am. Electl. Cas. 570 372 
 
 Connor v. El. Tract. Co., 173 Pa. St. 602 306 
 
 Connor v. Met. St. R. Co., 48 App. Div. (N. Y.) 580 332 
 
 Conolly V. Crescent City R. Co. (La.), 6 So. 536 503 
 
XXX TABLE OF CASES. 
 
 PAGE 
 
 Conoly V. Trenton Pass. R. Co., 56 N. J. L. (27 Vroom) 700 361 
 
 Conshohocton v. Pa. Ry. Co., 15 Pa. Co. Ct. 45 2 
 
 Consolidated & C. P. R. Co. v. Wyatt, 59 Kan. 772 369, 377 
 
 Consolidated City & C. P. R. Co. v. Carlson, 58 Kan. 62 377 
 
 Consolidated St. R. Co. v. Toledo El. St. R. Co., 6 Ohio N. P. 537. . 183 
 
 Consolidated Tract. Co. v. Elizabeth (N. J.), 34 Atl. 146 207 
 
 Consolidated Tract. Co. v. Glynn, 59 N. J. L. ( 30 Vroom) 432 323 
 
 Consolidated Tract. Co. v. Haight, 59 N. J. L. (30 Vroom) 577 294 
 
 343, 367, 38s 
 Consolidated Tract. Co. v. Lafflbertson, 59 N. J. L. (30 Vroom) 297. '344 
 Consolidated Tract. Co. v. Scott, 58 N. J. L. (29 Vroom) 683. . 316, 366 
 Consolidated Tract. Co. v. S. Orange & M. T. Co., 56 N. J. Eq. 569. 190 
 Consolidated Tract. Co. v. Taborn, 58 N. J. L. (29 Vroom) i . . 444, 505 
 Consolidated Tract. Co. v. Thalheimer, 59 N. J. L. (30 Vroom) 474. 526 
 
 Conway v. Lewiston & A. R. Co., 90 Mo. 199 485 
 
 Conway v. New Orleans & C. R. Co., 46 La. Ann. 1429 480 
 
 Conway v. New Orleans City & L. R. Co., 51 La. Ann. 146 294, 371 
 
 Conway v. Rochester, 157 N. Y. 33 254 
 
 Conyngham v. Erie El. M. Co., 15 Pa. Super. Ct. 573 406 
 
 Cooke V. Baltimore Tract. Co., 80 Md. 551 355 
 
 Cook V. Detroit, etc., R. Co., 43 Mich. 349 55 
 
 Cook V. Los Angeles Ry. Co., 129 Cal. 180 178, 328 
 
 Cook V. Los Angeles & P. El. Ry. Co. (Cal.), 66 Pac. 306 366 
 
 Cook V. St. Paul, etc., R. Co., 34 Minn. 45 537 
 
 Cooney v. So. El. R. Co., 80 Mo. App. 226 315, 384 
 
 Cooper V. Ga. C. & N. Ry. Co., 61 S. C. 345 482 
 
 Copper V. Second & Third St. Pass. Ry. Co., 3 Phila. (Pa.) 262 20 
 
 Cooper V. Staten Isl. Midland R. Co., 32 Misc. Rep. (N. Y.) 721.. 273 
 
 Copeland v. Met. St. R. Co., 67 App. Div. (N. Y.) 483 373 
 
 Copp V. Colorado Coal & Iron Co., 60 St. Rep. (N. Y.) 293 171 
 
 Corbett v. Brooklyn, etc., R. Co., 84 Hun (N. Y.), 375 549 
 
 Corbett v. Twenty-third St. R. Co., 42 Hun (N. Y.), 587 434, 501 
 
 Cords V. Third Ave. R. Co., 4 N. Y. Supp. 439 304 
 
 Corlin v. West End St. Ry. Co., 154 Mass. 197 458 
 
 Cornell v. Detroit El. R. Co., 82 Mich. 495 ,,q ,,, 
 
 Cosselmon v. Dunfee, 59 App. Div. (N. Y.) 467 efia 
 
 Costegan v. Pa. R. Co., 25 Vroom (N. J.) 234 j^ 
 
 Costegan v. Warren, B. & S. St. R. Co. (Mass.), 55 N. E. 317 511 
 
 Costello V. Third Ave. R. Co., 161 N. Y. 317 ^^g ,3- 
 
 Cotton V. Lynn & B. R. (Mass.), 61 N. E. 818 .' 537 
 
 Coughtry v. Willamette St. R. Co., 21 Oreg. 245 ,,q ,^2 
 
 Coulahan v. Met. St. Ry. Co.. 28 App. Div. (N. Y.) 394 ' 5^ 
 
 Countryman v. Fonda, J. & G. R. Co., 166 N. Y. 201 324, ggj^ ^gg 
 
TABLE OF CASES. XXXI 
 
 FACE 
 
 Coursey v. So. Ry. Co. (Ga.), 38 S. E. 866 484, S23 
 
 Covington St. Ry. Co. v. Covington, 9 Bush (Ky.) 127. 25 
 
 Covington St. Ry. Co. v. Covington, etc., Ry. Co., i Ky. L. Rep. 318. 116 
 
 Covington & L. Turnp. Co. v. Sandford, 164 U. S. 578 41, 221 
 
 Cowan V. Railroad Co., 84 Mich. 583 277 
 
 Cowden v. Shreveport Belt Ry. Co., 106 La. Ann. 236.. 512 
 
 Cowell V. Colorado Springs Co., 100 U. S. 55 32 
 
 Coy V. Detroit, Y. & A. A. Ry. (Mich.), 85 N. W. 6 436 
 
 Coyle V. Third Ave. R. Co., 17 Misc. Rep. (N. Y.) 282 403 
 
 Cox V. Los Angeles Terminal R. Co., 109 Cal. 100 478 
 
 Cox V. Norfolk, etc., R. Co., 123 N. C. 613 545 
 
 C. & P. St. R. Co. V. Meixner, 160 111. 320 458 
 
 C. & R Tel. Co. V. Baltimore, 90 Md. 638 : 249 
 
 Craig V. Rochester, etc., R. Co., 39 N. Y. 404 145, 146, 147, 148, 151 
 
 Craighead v. Brooklyn City R. Co., 123 N. Y. 391 424, 456 
 
 Craker v. Railway Co., 36 Wis. 657 , 492, 495 
 
 Crane v. Brooklyn H. R. Co., 68 App. Div. (N. Y.) 202 392 
 
 Cranford v. Burrell, 53 Pa. St. 219 573 
 
 Creamer v. West End St. Ry. Co., 156 Mass. 320 367, 449 
 
 Crease v. Babcock, 40 Mass. 334 39 
 
 Crease v. Babcock, 23 Pick. (Mass.) 343 46, 47 
 
 Creavin v. Newton St. Ry. Co. (Mass.), 57 N. E. 994 406 
 
 Crescent City R. Co. v. New Orleans, 44 La. Ann. 1057 586 
 
 Cronan v. Crescent City R. Co., 49 La. Ann. 65 528 
 
 Crooks V. Second Ave. R. Co., 49 St. Rep. (N. Y.) 376 453 
 
 Croom V. Chicago, M. & St. P. R. Co., 52 Minn. 296 449. S30 
 
 Cross V. California St. Cable R. Co., 102 Cal. 313 32S, 363 
 
 Crosstown R. Co. v. Met. St. R. Co., 16 App. Div. (N. Y.) 229 65 
 
 Crow v. Met. St. R. Co., 26 N. Y. L. J. 2319 565 
 
 Crowley v. Met. St. R. Co., 24 App. Div. (N. Y.) loi 363 
 
 Culbertson v. Crescent City R. Co., 48 La. Ann. 1376 375 
 
 Culbertson v. Met. St. R. Co., 140 Mo. 35 294, 368 
 
 Cullar v. Mo., Kan. & T. Ry. Co., 84 Mo. App. 340 480 
 
 Cumberland Tel. & Tel. Co. v. United El. R. Co., 93 Tenn. 492. . 136, 288 
 
 290 
 
 Cummings v. Worcester L. & S. St. R. Co., 166 Mass. 220 524 
 
 Cunningham v. D. D., etc., Co., 31 Misc. Rep. (N. Y.) 471 553 
 
 Cunningham v. Los Angeles St. R. Co., 115 Cal. 561 374 
 
 Cunningham v. Met. St. R. Co., 29 Misc. Rep. (N. Y.) 123 399 
 
 Cunningham v. Seattle El. L. & P. Co., 3 Wash. 471 ..'. S08 
 
 Curran v. Arkansas, 56 U. S. (15 How.) 304 40 
 
 Currie v. Atl. City (N. J. Sup. 1901), 48 Atl. 615 81 
 
 Currie v. Mendenhall (Minn.), 79 N. W. 677 484 
 
 Curry v. Rochester R. Co., 90 Hun (N. Y.), 230 356 
 
XXxii TABLE OF CASES. 
 
 PAGE 
 
 Curtis V. Louisville City R. Co., 94 Ky. 573 50i 
 
 Curvin v. Rochester R. Co., 78 Hun (N. Y.), 555 80 
 
 Czezewzka v. Benton-Bellefontaine R. Co., 121 Mo. 201 385 
 
 D. 
 
 Dahl V. Railway Co., 62 Wis. 655 475 
 
 Dale V. Brooklyn City R. Co., i Hun (N. Y.), 146 527 
 
 Dallas V. Dallas Consol. T. R. Co. (Tex.), 33 S. W. 757 255, 602 
 
 Dallas City R. Co. v. Beeman, 74 Tex. 291 529 
 
 Dallas, etc., Ry. Co. v. Randolph (Tex. Civ. App.), 5 Am. Electl. 
 
 Cas. 379 278, 512 
 
 Dallas Rapid T. R. Co. v. Elliott, 7 Tex. Civ. App. 216 294 
 
 Daly V. Central R. Co. of N. J., 38 App. Div. (N. Y.) 632 549 
 
 Daly V. Detroit Citizens' R. Co., 105 Mich. 193 301 
 
 Daniel v. New Jersey St. Ry. Co. (N. J.), 46 Atl. 625 465 
 
 Daniels v. Commonwealth Ave. R. Co. (Mass.), 56 N. E. 715 64, ^7 
 
 Danville St. Car Co. v. Payne (Va.), 24 S. E. 904 429 
 
 Danville St. Car Co. v. Watkins, 97 Va. 713 286 
 
 Dartmouth College v. Woodward, 17 U. S. (4 Wheat.) 514 32 
 
 Daub V. Yonkers R. Co., 69 Hun (N. Y.), 138 420 
 
 Daughdrill v. Alabama Life Ins. Trust Co., 31 Ala. 91 577 
 
 Davey v. Greenfield & T. F. St. Ry. Co., 177 Mass. 106 451 
 
 Davidson v. Denver Tramway Co., 4 Colo. App. 283 300, 347 
 
 Davidson v. Schuylkill Tract. Co., 4 Pa. Super. Ct. 86 300, 324, 358 
 
 Davies v. Mann, 10 N. W. 546 .' . . 521 
 
 Davies v. Peoples' R. Co., 67 Mo. App. 598 385 
 
 Davis V. Chicago, M. & St. P. R. Co., 93 Wis. 470 416 
 
 Davis V. Cong. Tephila Israel, 40 App. Div. (N. Y.) 424 173 
 
 Davis V. E. Tenn., V. & G. R. Co., 87 Ga. 607 190 
 
 Davis V. Kansas City Ry. Co., 46 Mo. App. 189 545 
 
 Davis V. Mayor, etc., 14 N. Y. 506 12, 25, 145 
 
 Davis V. N. W. El. R. Co., 170 111. 595 163^ 166 
 
 Davis V. Ottawa El. R. Co. (Can.), 28 Ont. 654 503 
 
 Davis v. Railroad Co., 107 Ga. 420 ^2 
 
 Dawson v. N. Y. & B. Bridge, 31 App. Div. (N. Y.) 537 468 
 
 Day V. Brooklyn City R. Co., 12 Hun (N. Y.), 435 448, 487, 502 
 
 Day V. Citizens' Ry. Co., 81 Mo. App. 471 2o6 408 
 
 Day V. Ogdensburgh, etc., R. Co., 107 N. Y. 129 44 .-r 
 
 D. D., E. B. & B. R. Co. v. Mayor, 47 Hun (N. Y.), 221 . . ..... . . .' 229 
 
 Dean v. Ann Arbor St. R. Co., 93 Mich. 330 i ,g 
 
 Dean v. City of Paterson (N. J.), 50 Atl. 620 ^j 
 
 Dean v. Third Ave. R. Co., 34 App. Div. (N. Y.) 220 45, 
 
 Decker v. Brooklyn H. R. Co., 64 App. Div. (N. Y.) 430 '\ 330 
 
 Dederichs v. Salt Lake City Ry. Co. (Utah), 6 Am. Electl. Cas. 592. 324 
 
TABLE OF CASES. XXXIU 
 
 De Grauw v. Long Isl. EI. R. Co., 43 App. Div. (N. Y.) 502 .-. 3, 4, 5 
 
 16, 224 
 
 Dehsoy v. Milwaukee El. Ry. & L. Co. (Wis.), 85 N. W. 973 556 
 
 De loia v. Met. St. R. Co., 37 App. Div. (N. Y.) 45s 295, 304, 377 
 
 Delaware Co. v. Cnester St. R. Co. (Pa. C. P.), 10 Pa. Co. Ct. 326. . 576 
 Delaware, etc., Co. v. Syracuse, etc., Co., 28 Misc. Rep. (N. Y.) 456. TJ 
 
 Delaware, etc., Co. v. Trautwein, 52 N. J. L. 169 418, 539 
 
 Delaware, etc., Co. v. Wilkesbarre, etc., Ry. Co., 6 Kulp (Pa.), 342. . 333 
 
 Delaware, L. & W. R. Co. v. City of Buffalo, 158 N. Y. 266 24 
 
 De Lon v. Kokomo City St. R. Co., 22 Ind. App. 377 300, 318 
 
 Demann v. Eighth Ave. R. Co., 10 Misc. Rep. (N. Y.) 191 549 
 
 Deming v. Chicago, R. I. & P. Ry. Co., 80 Mo. App. 152 482 
 
 Deraing v. Terminal Ry. of Buffalo, 169 N. Y. i 486 
 
 Dennis v. New Jersey St. Ry. Co. (N. J. Sup.), 45 Atl. 807 293, 370 
 
 Dennison & S. R. Co. v. Dennison, etc., Co., 11 Tex. Civ. App. 137. 115 
 
 Denver v. Denver City Cable R. Co., 22 Colo. 565 218 
 
 Denver v. Sherret, 88 Fed. 226 270 
 
 Denver & R. G. R. Co. v. Andrews, 11 Colo. App. 204 416 
 
 Denver & R. G. R. Co. v. Harris, 122 U. S. 597 494 
 
 Denver & S. Ry. Co. v. Denver City R. Co., 2 Colo. 682 63, 114 
 
 200, 24s 
 
 Denver Tramway Co. v. Reid, 4 Colo. App. 53 283, 429 
 
 Dern v. Salt Lake City R. Co., 19 Utah, 46 126 
 
 De Rozas v. Met. St. R. Co., 13 App. Div. (N. Y.) 296 461, 527 
 
 Deschamps v. Second, etc., R. Co., 3 Phila. (Pa.) 279 20 
 
 Des Moines St. R. Co. v. Des Moines Broadgauge St. R. Co., yz 
 
 Iowa, 513 114 
 
 De Soucey v. Manhattan R. Co., 39 St. Rep. (N. Y.) 79 549 
 
 Detroit v. Detroit Citizens' St. R. Co. (U. S. Sup. Ct.), decided 
 
 March, 1902 439 
 
 Detroit v. Detroit City Ry. Co., Z7 Mich. 558 19, 255 
 
 Detroit v. Detroit City Ry. Co., 76 Mich. 421 577 
 
 Detroit v. Detroit City Ry. Co. (C. C. E. D. Mich.), 56 Fed. 857. .. . 12 
 
 21, 38, 66 
 
 Detroit v. Fort Wayne & B. I. R. Co., 95 Mich. 456 225, 419 
 
 Detroit v. Fort Wayne, etc., R. Co., 90 Mich. 646 243, 258 
 
 Detroit Citizens' St. Ry. Co. v. Common Council of Detroit (Mich,), 
 
 85 N. W. 96 578. 582, 584, 603 
 
 Detroit Citizens' St. Ry. Co. v. Detroit, 12 C. C. A. 365, 64 Fed. 628. . 60 
 
 Detroit Citizens' St. Ry. Co. v. Detroit, no Mich. 384 66 
 
 Detroit Citizens' St. Ry. Co. v. Detroit Ry. Co., 171 U. S. 48 • • 34. 57 
 
 58, -59, 71, 10.7 
 
 Detroit City R. Co. v. Mills, 85 Mich. 634 5i, 136, 201 
 
 Dettmers v. Brooklyn H. R. Co., 22 App. Div. (N. Y.) 488 342 
 
 iii 
 
XXxiv TABLE OF CASES. 
 
 PAGE 
 
 Detwiler v. Toledo El. St. R. Co., 6 Ohio N. P. 48s I03 
 
 Devine v. Brooklyn H. R. Co., 34 App. Div. (N. Y.) 248 . . 280, 296, 344 
 
 406 
 
 Devlin v. Atlantic Ave. R. Co., 57 Hun (N. Y.), SQi 509 
 
 Dewey v. Chicago & M. EI. Ry. Co., 184 111. 426 158 
 
 Dickert v. Salt Lake City R. Co. (Utah), 59 Pac. 95 417 
 
 Dickson v. Brooklyn City & Newtown R. Co., 100 N. Y. 170 422 
 
 Dieck V. New Orleans City & L. R. Co., 51 La. Ann. 262 367 
 
 Dieter v. Estill, 95 Ga. 370 14 
 
 Dillingham v. Russell, 73 Tex. 47 495 
 
 Dillon v. Forty-second St. R. Co., 28 App. Div. (N. Y.) 404 . . 394, 453 
 
 473, 5SS 
 
 Dillon V. Lindell R. Co., 71 Mo. App. 631 491 
 
 Dillon V. Nassau El. R. Co., 59 App. Div. (N. Y.) 614 321 
 
 Dimmitt v. Hannibal & St. J. R. Co., 40 Mo. App. 654 523 
 
 Dinney v. Wheeling & E. G. R. Co., 28 W. Va. 32 512 
 
 Dintruflf v. Rochester City & B. R. Co., 32 St. Rep. (N. Y.) 730 279 
 
 Dipaolo V. Third Ave. R. Co., 55 App. Div. (N. Y.) 566 350 
 
 District Attorney v. Lynn, etc., R. Co., 16 Gray (Mass.), 242 18 
 
 District of Columbia v. M. R. Co., 8 App. D. C. 332 255, 256 
 
 District of Columbia v. Washington & G. R. Co., i Mack, 361 258 
 
 Dix V. Ridge Ave. Pass. Ry. Co., 15 Pa. Super. Ct. 350 371 
 
 Dixon V. Brooklyn H. R. Co., 35 Misc. Rep. (N. Y.) 422 411 
 
 Dixon V. Railroad Co., 100 N. Y. 170 230, 276 
 
 Dixson V. Brooklyn H. R. Co., 68 App. Div. (N. Y.) 302 389 
 
 D., L. & W. R. Co. V. City of Bufifalo, 158 N. Y. 266 24 
 
 D., L. & W. R. Co. V. East Orange, 41 N. J. L. 127 207 
 
 D., L. & W. R. Co. V. Frank (U. S. C. C. N. Y.), no Fed. 689 440 
 
 D., L. & W. R. Co. V. Syracuse, L. & B. Co., 28 Misc. Rep. (N. Y.) 
 
 458 70, 191 
 
 D., L. & W. R. Co. V. Trautwein, 52 N. J. L. 169 539 
 
 Doane v. Chicago City R. Co., 57 111. App. 353 244 
 
 Doane v. Lake St. El. R. Co., 165 111. 510 137 
 
 Dobert v. Troy City R. Co., 91 Hun (N. Y.), 28 326, 486 
 
 Dochtermann v. Brooklyn Heights R. Co., 164 N. Y. 586 451 
 
 Dodd V, Consol. Tract. Co. (N. J. Sup.), 57 N. J. L. 482 141, 142 
 
 Dodge V. Woolsey, 59 U. S. (18 How.) 631 33_ 577 
 
 Doherty v. Detroit Citizens' St. R. Co., 118 Mich. 209 368 370 
 
 Domestic Tel. & Tel. Co. v. Newark, 20 Vroom (N. J.), 344 .q 
 
 Donavan v. Transit Co., 102 Cal. '245 277 
 
 Donelly v. N. Y., etc., R. Co., 3 App. Div. (N. Y.) 408 ■■■ S^^ 
 
 Donnaher v. State, 8 Smedes & M. (Miss.) 649 227 
 
 Donnelly v. Brooklyn City R. Co.. 109 N. Y. 16 206 
 
 Donoho V. Met. St. Ry. Co., 30 Misc. Rep. (N. Y.) 433 ^^q --j 
 
TABLE OF CASES. XXXV 
 
 PAG£ 
 
 Donovan v. Hartford St. R. Co., 6s Conn. 201 446 
 
 Doolittle V. So. Ry. Co., 62 S. C. 130 472, 522 
 
 Dooly Block V. Salt Lake Rapid Transit Co., 9 Utah, 31 179 
 
 D'Oro V. Atlantic Ave. R. Co., 37 St. Rep. (N. Y.) 411 352 
 
 Dorsch V. Brooklyn H. R. Co., 68 App. Div. (N. Y.) 222 375 
 
 Doster v. Charlotte R. Co., 117 N. C. 461 330, 332 
 
 Dougherty v. Mo. Ry. Co., 97 Mo. 647 270 
 
 Dowd v. Albany Ry., 47 App. Div. (N. Y.) 202 434, 465 
 
 Dowling v. N. Y. C, etc., R. Co., 90 N. Y. 671 37^ 
 
 Downs V. St. Paul City Ry. Co., 75 Minn. 41 368 
 
 Doyle V. Albany Ry., s App. Div. (N. Y. ) 601 369, 527 
 
 Doyle V. M. E. R. Co., 29 Misc. Rep. (N. Y.) 331 483 
 
 Doyle V. New York, 58 App. Div. (N. Y.) 588 276 
 
 Doyle v. The Albany Railway, 32 App. Div. (N. Y.) 87 303 
 
 Doyle v. West End St. R. Co., 161 Mass. 533 301, 344 
 
 Dressier v. Citizens' St. R. Co., 19 Ind. App. 383 485 
 
 Drew V. Sixth Ave. R. Co., 26 N. Y. 49 446 
 
 Driscoll V. Market St. Cable R. Co., 97 Cal. 553 293, 316, 372 
 
 Duanesburgh v. Jenkins, 57 N. Y. 177 30 
 
 Du Bois Tract, etc., Co. v. Buffalo, etc., Co., 149 Pa. St. i 320 
 
 Dubuque v. 111. C. R. Co., 39 Iowa, 56 575 
 
 Dudley v. Front St. Cable R. Co. (C. C. D. Wash.), 73 Fed. 128.... 461 
 
 Duke V. Baltimore, etc., R. Co., 129 Pa. St. 422 151 
 
 Duluth V. Duluth St. Ry. Co., 60 Minn. 178 212, 262 
 
 Duluth S. S. & A. R. Co. V. Douglas Co., 103 Wis. 75 575 
 
 Dummer v. Milwaukee El. Ry. & L. Co., 108 Wis. 589 354, 408 
 
 Duncan v. Wyatt Park, etc., Co., 48 Mo. App. 659 484 
 
 Dunican v. Union Ry. Co., 39 App. Div. (N. Y.) 497 297, 406 
 
 Dunley v. Tract. Co., 18 Pa. Super. Ct. 206 514 
 
 Dunn v. Cass Ave., etc., R. Co., 21 Mo. App. 188 220 
 
 Dunseath v. Pittsb., etc.. Tract. Co., 161 Pa. St. 124 378 
 
 Durfee v. Johnstown, etc., R. Co., 71 Hun (N. Y.), 279 119, 265, 274 
 
 Durfee v. Old Colony, etc., R. Co., 5 Allen (Mass.), 230 42 
 
 Durousseau v. U. S., 10 U. S. (6 Cranch) 307 •• ■ 37 
 
 Durst v. Brooklyn H. R. Co., 33 Misc. Rep. (N. Y.) 124 392 
 
 Dusenberry v. N. Y., etc., R. Co., 46 App. Div. (N. Y.) 267 104, 106 
 
 Dusenbury v. N. Hudson Co. Ry. Co. (N. J.), 48 Atl. 520 j... 422 
 
 Dyer v. Erie Ry. Co., 71 N. Y. 223 388 
 
 E. 
 
 Eads v. Met. R. Co., 43 Mo. App. 536 493. S03 
 
 Eagle Ins. Co. v. Ohio, 153 U. S. 446 35 
 
 Earle v. Consol. Tract. Co. (N. J.), 46 Atl. 613 314. 3i9 
 
XXXVl TABLE OF CASES. 
 
 Earslow v. New Orleans & N. E. R. Co., 49 La. Ann. 86 286 
 
 East Anglian Ry. Co. v. Eastern Co. Ry. Co., 11 C. B. 775 119 
 
 East End St. R. Co. v. Doyle, 88 Tenn. 747 139 
 
 Eastern Co. R. Co. v. Broom, 6 Exch. 314 507 
 
 East Line & R. Co. v. Rushing, 69 Tex. 306 530 
 
 East Line, etc., R. Co. v. State, 75 Tex. 434 173 
 
 East Memphis City Ry. Co. v. Logue, 13 Lea (Tenn.), 32 297 
 
 East Omaha St. R. Co. v. Godola, 50 Nebr. 960 414, 476 
 
 Easton, etc., Ry. Co. v. Easton,- 133 Pa. St. 505 127, 133, 220, 243 
 
 East St. Louis, etc., Ry. Co. v. Wachtel, 63 111. App. 181 329 
 
 East Tenn., etc., Co. v. Markenz, 88 Ga. 60 388 
 
 East Tenn., etc., Co. v. Winters, 85 Tenn. 240 533 
 
 Eastwood V. La Crosse City R. Co., 94 Wis. 163 329 
 
 Eberhardt v. Met. St. Ry. Co., 69 App. Div. (N. Y.) 560 559 
 
 Eckinglon & S. H. R. Co. v. Hunter, 23 Wash. L. Rep. 401 316 
 
 Eddy V. Cedar Rapids & M. R. Co., 98 Iowa, 626 352 
 
 Eddy V. Syracuse R. T. Co., 50 App. Div. (N. Y.) 109 441, 505 
 
 Edgerly v. Union St. Ry. Co., 67 N. H. 312 503 
 
 Edgerton v. Bait. & Ohio R. Co. (D. C. App.), 23 Wash. L. Rep. 
 
 369 .522 
 
 Edgerton v. O'Neill, 4 Kan. App. 73 108 
 
 Edwards v. Foote (Mich.), 88 N. W. 404 512 
 
 Egerer v. N. Y. C. & H. R. R. Co., 130 N. Y. 108 140 
 
 Ehret v. Camden & T. Ry. Co. (N. J. Ch.), 46 Atl. 578 139 
 
 Ehrhard v. Met. St. Ry. Co., 58 App. Div. (N. Y.) 613 416 
 
 Ehrhard v. Met. St. Ry. Co., 69 App. Div. (N. Y.) 124 547 
 
 Ehrisman v. E. Harrisburgh R. Co., 150 Pa. St. 180 259, 318, 367 
 
 Ehrman v. Nassau El. R. Co., 23 App.- Div. (N. Y.) 21 294, 327 
 
 Eichels v. Evansville St. R. Co., 78 Ind. 263 26, 42, 63 
 
 Eickhof V. Chicago N. S. R. Co., 74 111. App. 196 474 
 
 Einsfeld v. Nia:gara Junction Ry. Co., 49 App. Div. (N. Y.) 470. 334, 335 
 
 Eisenhuth v. Ackerson, 105 Cal. 87 ^g 
 
 Eldert v. The Long Isl. El. R. Co., 28 App. Div. (N. Y.) 451 184 
 
 Eldridge v. Smith, 34 Vt. 484 55 
 
 Electric Co. v. Simpson, 21 Colo. 371 ,g2 
 
 Electric Ry. Co. v. Grand Rapids, 84 Mich. '257 20 121 220 
 
 Elfelt v. Stillwater St. R. Co. (Minn.), 55 N. W. 116 '.-....' 136 
 
 Elizabethtown Gas Light Co. v. Greene, 46 N. J. Eq. 118 4.6 
 
 Ellick V. Met. St. R. Co., 15 App. Div. (N. Y.) 556 316 
 
 Elliott V. Newport St. R. Co., 18 R. I. 707 •.'.470, 475 
 
 Ellis V. Lynn & Boston Ry. Co., 160 Mass. 341 ,,q 
 
 Ellis V. Milwaukee City Ry. Co., 67 Wis. 135 22-? 
 
 Elmira v. Maple Ave. Ry. Co., 4 N. Y. Supp. 943 2 „ 
 
 Elmore v. Sands, 54 N. Y. 512 ''^ ^qj 
 
TABLE OF CASES. XXXVU 
 
 PAGE 
 
 Elwood V. Chicago City Ry. Co., 90 111. App. 397 296, 416, 520 
 
 Elwood El. St. Ry. Co. v. Ross (Ind. App.), 58 N. E. 535.. 302, 391, 397 
 
 Elyhen Land Co. v. Mingea, 89 Ala. 521 321 
 
 Emerson v. Burnett, 11 Colo. App. 88 550 
 
 Empire City Sub. Co. v. B. & S. A. R. Co., 87 Hun (N. Y.), 279. 252, 274 
 
 Enfield Toll Bridge Co. v. Conn. River Co., 7 Conn. 45 47 
 
 English V. Del. & H. C. Co., 66 N. Y. 454 444 
 
 English V. N. H. & N. Co., 32 Conn. 243 39 
 
 EngHsh V. Westchester El. Ry. Co., 69 App. Div. (N. Y.) 576 542 
 
 Ennis v. Union Depot R. Co., 155 Mo. 20 384 
 
 Eppendorf v. Brooklyn City & N. R. Co., 69 N. Y. 195 458 
 
 Ericius v. Brooklyn H. R. Co., 64 App. Div. (N. Y.) 618 411, 553 
 
 Erie City Pass. R. Co. v. Schuster, 113 Pa. St. 412 528 
 
 Erie R. Co. v. Pennsylvania, 88 U. S. (21 Wall.) 192 583 
 
 Etson v. Fort Wayne & B. I. R. Co., 114 Mich. 605 453 
 
 Eureka Springs v. O'Neil, 56 Ark. 350 225 
 
 Evansville St. R. Co. v. Gentry, 147 Ind. 408 325, 366 
 
 Everett v. Council Bluffs, 46 Iowa, (A 142 
 
 Everett v. Los Angeles Consol. El. Ry. Co. (Cal.), 6 Am. Electl. 
 
 Cas. 460 381 
 
 Evers v. Philadelphia Tract. Co., 176 Pa. St. 376 318 
 
 Ev. L. St. J. O. H. V. Buffalo Hyd. Assn., 64 N. Y. 561 54 
 
 Ewing V. Atlantic Ave. R. Co., 34 St. Rep. (N. Y.) 113 304 
 
 Ewing V. Toronto R. Co. (C. P.), 24 Ont. 694 324 
 
 Ex parte Greene, 94 Cal. 387 223 
 
 B.X parte Lorenzen, 128 Cal. 431 210 
 
 Ex parte O'Keefe, 46 St. Rep. (N. Y.) 557 225 
 
 Express Co. v. Ohio St. Auditor, 165 U. S. 194 584 
 
 F. 
 
 Faber v. Chicago G. W. R. Co., 62 Minn. 433 433 
 
 Fairbanks v. Bangor, O. & D. R. Co. (Me.), 49 Atl. 421 367 
 
 Falke v. Third Ave. R. Co., 38 App. Div. (N. Y.) 49 S09 
 
 Fandell v. Third Ave. R. Co., 15 App. Div. (N. Y.) 426 . . 293, 316, 360 
 
 371 
 
 Fanning v. Osborne, 102 N. Y. 441 13. 23, 245 
 
 Farber v. Mo. P. R. Co., 16 Mo. 81 479 
 
 Paris V. Brooklyn City R. Co., 46 App. Div. (N. Y.) 231 . . 417, 463, 475 
 Farley v. Cincinnati, H. & D. R. Co. (U. S. C. C. A. Ohio), 108 
 
 Fed. 14 447 
 
 Farnum v. Concord H. R. Co., 66 N. H. 569 201 
 
 Farnum v. Haverhill & A. St. R. Co. (Mass.), 59 N. E. 7S5 12 
 
 Farrar v. New Orleans & C. R. Co., 52 La. Ann. 417 380 
 
 Parrell v. Winchester Ave. R. Co., 61 Conn. 127 15, 37, 65, 200 
 
XXXviii TABLE OF CASES. 
 
 Farris v. Cass Ave., etc., Ry. Co., 80 Mo. 325 529 
 
 Fath V. Tower Grove, etc., Ry. Co., 105 Mo. 537 228, 307 
 
 Fay V. Brooklyn H. R. Co., 69 App. Div. (N. Y.) 563 S58 
 
 Fay v. Met. St. R. Co., 62 App. Div. (N. Y.) 51 • 446 
 
 Fayetteville & S. T. R. Co. v. Fayetteville, 37 Misc. Rep. (N. Y.) 
 
 223 • 197 
 
 Feary v. Met. St. Ry. Co. (Mo.), 62 S. W. 4S2 416, 427. S4i, 557 
 
 Feingold v. Philadelphia Tract. Co., 7 Pa. Dist. 445 489 
 
 Fejdowski v. D. & H. C. Co., 168 N. Y. 500 367, 369, 408 
 
 Felton V. Holbrook (Ky.), 56 S. W. 506 519 
 
 Fenig v. New Jersey St. Ry. Co. (N. J.), 46 Atl. 602 481 
 
 Fenton v. Second Ave. R. Co., 126 N. Y. 625 302, 318, 375 
 
 Ferguson v. Covington & C. El. R., etc., Co. (Ky.), 57 S. W. 460. . 103 
 
 150 
 
 Ferguson v. Philadelphia Tract. Co., 9 Pa. Co. Ct. 147 351 
 
 Ferry v. Manhattan Ry. Co., 118 N. Y. 497 520 
 
 Fertilizer Co. v. Hyde Park, 97 U. S. 659 229 
 
 Fewings v. Mendenhall (Minn.), 86 N. W. 96 416 
 
 Pick v. Met. St. Ry. Co., 26 App. Div. (N. Y.) 84 549 
 
 Fidelity T. & S. D. Co. v. Philadelphia & B. Pass. R. Co.. 6 Pa. 
 
 Dist. 737 139 
 
 Fidelity T. & S. J. Co. v. Mobile St. R. Co. (Ala.), 53 Fed. 687 116 
 
 Fielders v. New Jersey St. Ry. (N. J.), 50 Atl. 533 406, 421, 487 
 
 Fietsam v. Hay, 122 111. 293 iig 
 
 Finch V. Riverside & A. R. Co., 87 Cal. 597 136, 239 
 
 Finkeldey v. Omnibus Cable Co., 114 Cal. 28 428, 463 
 
 Finkelstein y. Brooklyn H. R. Co., 51 App. Div. (N. Y.) 287 376 
 
 Finlay v. Hudson El. R. Co., 64 Hun (N. Y.), 373 448, 489 
 
 Finlay v. West Chicago St. R. Co., 90 111. App. 368 375 
 
 Fishback v. Steinway Ry. Co., 11 App. Div. (N. Y.) 152 343, 361 
 
 First Nat. Bank v. North, 6 Dak. 141 550 
 
 Fisher v. W. Va. & P. R. Co., 42 W. Va. 183 526, 532, 533 
 
 Fisher v. M. E. R. Co., 34 Hun (N. Y.), 433 ' up 
 
 Fister v. tlet. St. Ry. Co., 30 Misc. Rep. (N. Y.) 430 492 
 
 Fitch V. City of New York, 55 N. Y. Super. Ct. 494 311 
 
 Fitts V. Cream City R. Co., 59 Wis. 323 I2p^ 244 
 
 Fitzhenry v. Consol. Tract. Co. (N. J.), 46 Atl. 6g8 376 
 
 Five Tracts of Land in Cumberland Township, Adams Co., Pa. v. 
 
 United States, loi Fed. 661 jg_ 
 
 Flack v. Nassau El. R. Co., 41 App. Div. (N. Y.) 399 426 435 
 
 Flaherty v. Harrison, 98 Wis. 559 ' ,„ 
 
 Flaherty v. Northern Pac. R. Co., 39 Minn. 328 ,J2 
 
 Flanagan v. Met. St. R. Co., 31 Misc. Rep. (N. Y.) 820 ^j 
 
 Flannagan V. Peoples' Pass. R. Co., 163 Pa. St. 102 -_- 
 
TABLE OF CASES. XXXIX 
 
 PAGE 
 
 Flannagan v. St. Paul City R. Co., 68 Minn. 300 340 
 
 Fleischmann v. Neversink M. R. Co., 174 Pa. St. 510 302 
 
 Fletcher v. The Aub. & Syr. R. Co., 25 Wend. (N. Y.) 462 145 
 
 Flewelling v. Railroad Co., 89 Me. 585 318, 330, 332 
 
 Flike V. Boston, etc., R. Co., 53 N. Y. 549 537 
 
 Floettl V. Third Ave. R. Co., 10 App. Div. (N. Y.) 308 350 
 
 Florence, etc., R. Co. v. Lilley, 3 Kan. App. 588 160 
 
 Florida, C. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306 ..... . 64 
 
 Florida S. R. Co. v. Hirst, 30 Fla. i 433, 479 
 
 Flourney v. Shreveport Belt Ry. Co., 50 La. Ann. 491 510 
 
 Floutrup V. Boston & M. R. Co., 163 Mass. 152 512 
 
 Floyd V. Paducah Ry. & L. Co. (Ky.), 64 S. W. 653 . . 371, 400, 405, 406 
 
 Flynn v. Brooklyn City R. Co., 158 N. Y. 493 122 
 
 Flynn v. Central Park, etc., R. Co., 49 N. Y. Super. Ct. 81 502, 503 
 
 Flynn v. Louisville R. Co. (Ky.), 62 S. W. 490 321, 322, 383 
 
 Fobes V. Rome, etc., R. Co., 121 N. Y. 505 148, 151 
 
 Foley V. Brunswick Tract. Co. (N. J.), 50 Atl. 340 485 
 
 Fonda v. St. Paul City R. Co., 71 Minn. 438 326 
 
 Ford V. Chas. Warner Co., i Marv. (Del.) 88 322 
 
 Ford v. Kansas City, etc., R. Co., 52 Mo. App. 429 46 
 
 Fordycs v. Beecher (Tex. Civ. App.), 21 S. W. 179 493 
 
 Forman v. New Orleans, etc., R. Co., 40 La. Ann. 446 27, 67, 223 
 
 Forsee v. Ala. G. S. R. Co., 63 Miss. 67 495 
 
 Fort Clarke St. R. Co. v. Ebaugh, 49 111. App. 582 503 
 
 Fort Plain Bridge v. Smith, 30 N. Y. 44 41 
 
 Fort Scott R. T. Ry. Co. v. Page (Kan. App.), 59 Pac. 690 390 
 
 Fort Worth & D. C. Ry. Co. v. Rogers, 21 Tex. Civ. App. 60s 445 
 
 Fort Worth St. Ry. Co. v. Allen (Tex. Civ. App.), 39 S. W. 125.... 265 
 
 Fort Worth St. Ry. Co. v. Ferguson, 9 Tex. Civ. App. 610 274 
 
 Fort Worth St. Ry. Co. v. Queen City Ry. Co., 71 Tex. 165 246 
 
 Fort Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 169 114 
 
 Foss V. Boston & M. R. Co. (N. H.), 21 Atl. 222 530 
 
 Foster v. Union Tract. Co. (Pa.), 49 Atl. 270 523 
 
 Fox v. Brooklyn City R. Co., 7 Misc. Rep. (N. Y.) 285 509 
 
 Fox V. Manhattan Ry. Co., 67 App. Div. (N. Y.) 460 547 
 
 Fox V. Mayor, etc., 70 Hun (N. Y.), 181 427 
 
 Fox v. Oakland Consol. R. Co., 118 Cal. SS 378 
 
 Fox V. Wm. Horton, Jr. & Co. (N. J. Sup.), 45 Atl. 793 282 
 
 Francis v. New York Steam Co., 114 N. Y. 380 525 
 
 Francisco v. Troy & L. R. Co., 78 Hun (N. Y.), 13 324, 515 
 
 Francisco v. Troy & L. R. Co., 88 Hun (N. Y.), 464 471, si8 
 
 Frank y. Met. St. R. Co., 44 App. Div. (N. Y.) 243 303, 375 
 
 Frank v. Met. St. R. Co., 58 App. Div. (N. Y.) 100 325, 371 
 
 Frankford & Phila. Pass. Ry. Co. v. Philadelphia, 58 Pa. St. 119 229 
 
Xl TABLE OF CASES. 
 
 PAGE 
 
 Franklin v. Third Ave. R. Co., 52 App. Div. (N. Y.) 512 492 
 
 Fraser v. London St. R. Co. (Can.), 29 Ont. Rep. 411 459 
 
 Frayser v. State, 16 Lea (Tenn.), 671 21 
 
 Freeh v. Phila., etc., R. Co., 39 Md. 576 545 
 
 Freedon v. N. Y. C, etc., R. Co., 24 App. Div. (N. Y.) 306 449, 532 
 
 Freeman v. Brooklyn H. R. Co., 54 App. Div. (N. Y.) 596 284 
 
 French v. Brooklyn H. R. Co*, 57 App. Div. (N. Y.) 204 562 
 
 French v. Buffalo, etc., R. Co., 2 Abb. Ct. App. Dec. (N. Y.) 196 281 
 
 Fresno St. R. Co. v. So. Pac. R. Co. (Cal.), 67 Pac. 773 421 
 
 Friedman v. D. D., E. B. & B. R. Co., 33 St. Rep. (N. Y.) 649 276 
 
 Fritz v. Detroit Citizens' St. Ry. Co. (Mich.), 5 Am. Electl. Cas. 
 
 480 338, 3S6, 368 
 
 Frost v. Frostburgh Coal Co., 65 U. S. (24 How.) 278 44 
 
 F. & S. Phila. City Pass. R. Co. v. Philadelphia (Pa.), 17 W. N. C. 
 
 (Pa.) 345 255 
 
 FuUerton v. Met. St. Ry. Co., 63 App. Div. (N. Y.) i 302, 378, 401 
 
 409, 563 
 
 Fulton v. Grand Trunk R. C. Co., 17 U. C. Q. B. 428 433 
 
 Funk V. EI. Tract. Co., 175 Pa. St. 559 302, 375 
 
 Furgason v. Citizens' St. R. Co., 16 Ind. App. 171 499 
 
 Furness v. Union R. Co., 8 Kulp (Pa.), 103 342 
 
 G. 
 
 Gaedeke v. S. L M. R. Co., 43 App. Div. (N. Y.) 514 59, 105 
 
 Gaffney v. Brooklyn City Ry. Co., 6 Misc. Rep. (N. Y.) i . . . . 428, 553 
 
 Gaffney v. St. Paul City Ry. Co., 81 Minn. 459 446 
 
 Gagne v. Minneapolis St. R. Co. (Minn.), 79 N. W. 671 380 
 
 Galena v. Hot Springs R. Co., 4 McCrary (U. S.), 371 495 
 
 Galesburgh EL, etc., Co. v. Manville, 61 111. App. 490 329 
 
 Gallagher v. Johnson (C. P.), 30 Ohio L. J. 139 gg 
 
 Gallagher v. Manchester St. Ry. Co., 70 N. H. 212 383 
 
 Galligan v. Met. St. R. Co., 33 Misc. Rep. (N. Y.) 87 388, 403 
 
 Galveston City R. Co. v. Nolan, 53 Tex. 139 259 
 
 Galveston, etc., R. Co. v. Galveston, 91 Tex. 17 20 
 
 Galveston, etc., R. Co. v. La Prelle (Tex. Civ. App.), 54 S. W. 488. . 498 
 Galveston, etc., R. Co. v. McMonigal (Tex. Civ. App.), 25 S. W. 341. 504 
 
 Galveston, etc., R. Co. v. State, 81 Tex. 572 „ 
 
 Galway v. M. E. R. Co., 128 N. Y. 132 j-^ j,- 
 
 Ganiard v. Rochester City, etc., Co., 50 Hun (N. Y.), 22... 220, 446 451 
 
 Gannon v. New Orleans C. & L. R. Co., 48 La. Ann. 1002 279 302 
 
 Gannon v. New York, etc., R. Co., 173 Mass. 40 i.j2 
 
 Gardner v. Mich. Cent. R. Co., 150 U. S. 361 272 
 
 Gargan v. West End St. Ry. Co., 176 Mass. 106 282 
 
TABLE OF CASES. xU 
 
 PAGE 
 
 Caroni v. Compagnie Nationale de Navigation, 39 St. Rep. (N. Y.) 
 
 63 430, 528 
 
 Garrity v. Detroit Citizens' R. Co., 112 Mich. 369 321, 384 
 
 Gay V. Bristol, etc., Co., 22 Pa. Co. Ct. 465 2 
 
 Gay V. Brooklyn H. R. Co., 69 App. Div. 563 . . . :. 512 
 
 Gaynor v. Old Colony & N. R., 100 Mass. 208 272 
 
 G. C. R. Co. V. Gulf, etc., R. Co., 63 Tex. 529 56 
 
 Geary v. Stephenson, 169 Mass. 31 SSo 
 
 Geipel v. Steinway R. Co., 14 App. Div. (N. Y.) 551 329 
 
 Geitz V. Milwaukee City R. Co., 72 Wis. 307 472 
 
 General El. R. Co. v. Chicago City R. Co., 66 111. App. 362 tj, 190 
 
 General El. R. Co. v. Chicago, etc., Co., 90 Fed. 907 132 
 
 General El. R. Co. v. Chicago, etc., Co., 184 111. 588 ....... 132, 137, 152 
 
 Genet v. City of Brooklyn, 99 N. Y. 296 567 
 
 Geneva, etc., R. Co. v. N. Y. C, etc., R. Co., 24 App. Div. (N. Y.) 
 
 33S 75 
 
 Geoghagan v. Third Ave. R. Co., 51 App. Div. (N. Y.) 369 409 
 
 George v. Los Angeles Ry. Co., 126 Cal. 357 323, 377, 447 
 
 Georgia Pac. Ry. Co. v. Hughes, 87 Ala. 610 312 
 
 Georgia R. R. & Banking Co. v. Smith, 128 U. S. 174 435 
 
 Gerard College Pass. R. Co. v. Thirteenth St., etc., Ry. Co., 7 Phila. 
 
 (Pa.) 620 128 
 
 Germantown Pass. R. Co. v. Citizens' Pass. R. Co., 151 Pa. St. 138. .116 
 Getchell & Martin L. & Mfg. Co. v. Des Moines Union Ry. Co. 
 
 (Iowa), 87 N. W. 670 106 
 
 Getman v. D., L. & W. R. Co., 162 N. Y. 21 515 
 
 Gettysburg Battlefield Assn. v. G. El. R. Co., 2 Pa. Dist. 659 2 
 
 Ghee v. Northern Union Gas Co., 158 N. Y. 510 50 
 
 Gibbons v. Wilkesbarre & S. St. R. Co., 155 Pa. St. 279 332, 385 
 
 Gilbert v. West End St. R. Co., 160 Mass. 403 480 
 
 Gildea v. Met. St. Ry. Co., 58 App. Div. (N. Y.) 528 363 
 
 Gillett V. Chester, etc., Ry. Co. (Pa.), 4 Am. Electl. Cas. 160 17 
 
 Gillingham v. Ohio River R. Co., 33 W. Va. 588 417, 507 
 
 -Gilman v. Boston & M. R. Co., 168 Mass. 454 429 
 
 Gilmartin v. Lack. Val. R. T. Co., 186 Pa. St. 193 380 
 
 Gilmore v. Brooklyn H. R. Co., 6 App. Div. (N. Y.) 117...... 453, 519 
 
 Gilmore v. Federal St. & P. V. Pass. R. Co., 153 Pa. St. 31 . . . 269, 319 
 
 32s, 342 
 
 Gilmore v. Utica, 121 N. Y. %o\ 257 
 
 Gilmore v. Utica, 131 N. Y. 26 265 
 
 Gilson V. Jackson Co. Horse Ry. Co., 76 Mo. 382 426 
 
 Gilson V. Rush Co., 128 Ind. 65 567 
 
 Ginna v. Second Ave. R. Co., 67 N. Y. 596 471 
 
 <Ginnon v. N. Y. & H. R. Co., 26 N. Y. Super. Ct. 25 549 
 
xHi TABLE OF CASES. 
 
 PAGE 
 
 Giozza V. Tiernan, 148 U. S. 657 570 
 
 Giralso v. Coney Isl. & B. R. Co., 42 St. Rep. (N. Y.) 915 304 
 
 Giraudi v. Imp. Co., 107 Cal. 120 270, 382 
 
 Glaessner v. Anheuser-Busch Brewing Assn., 100 Mo. 508 24 
 
 Glazebrook v. West End St. R. Co., 160 Mass. 230 347 
 
 Glidden v. Cincinnati, 4 Ohio Dec. 423 133 
 
 Glyn V. N. Y. & H. R. Co., 85 Hun (N. Y.), 408 470 
 
 Goddard v. Railway Co., 57 Me. 202 492, 495 
 
 Godfrey v. Streator R. Co., 50 111. App. 378 270 
 
 Goldrick v. Union R. Co., 20 R. I. 128 269 
 
 Goldstein v. D. D., etc., R. Co., 35 Misc. Rep. (N. Y.) 200. . 293, 302, 377 
 Goldwasser v. Met. St. Ry. Co., 32 Misc. Rep. (N. Y.) 682 ^ . . 454, 463 
 
 Goodloe V. Memphis & C. R. Co., 107 Ala. 233 495 
 
 Goodman v. M. St. R. Co., 63 App. Div. (N. Y.) 84 385 
 
 Goodrich v. Burbank, 12 Allen (Mass.), 459 54 
 
 Goodrich v. Houghton, 134 N. Y. 115 89 
 
 Goorin v. Allegheny Tract. Co., 179 Pa. St. ^y 510 
 
 Gordan v. App. Tax Ct., 44 U. S. (3 How.) 133 33 
 
 Gordan v. Ashley, 34 Misc. Rep. (N. Y.) 743 290 
 
 Gordan v. Grant St. & Newtown R. Co., 40 Barb. (N. Y.) 546 447 
 
 Gordan v. W. E. St. Ry. Co., 175 Mass. 181 446 
 
 Gorman v. So. Pac. R. Co., 97 Cal. i 495 
 
 Gosnell v. Toronto R. Co., 21 Ont. App. 553 227, 324 
 
 Goszler v. Georgetown, 6 Wheat. (U. S.) 593 9 
 
 Government St. R. Co. v. Hanlon, 53 Ala. 70 529 
 
 Gould V. Union Tract. Co., 190 Pa. St. 198 380 
 
 Grace v. St. Louis R. Co., 156 Mo. 295 414, 480, 481 
 
 Graeff v. Philadelphia & R. Co., 161 Pa. St. 230 498 
 
 Graff V. Detroit Citizens' R. Co., 109 Mich, jy 368 
 
 Graham v. Consol. Tract. Co. (N. J. Sup.), 44 Atl. 964 327, 375 
 
 Graham v. Manhattan R. Co., 149 N. Y. 336 468 
 
 Graham v. McNeill, 20 Wash. 466 465 
 
 Gram v. Northern, etc., R. Co., i N. Dak. 260 545 
 
 Grand Ave. R. Co. v. Citizens' R. Co., 148 Mo. 665 185 
 
 Grand Ave. R. Co. v. Lindell R. Co., 148 Mo. 637 185 
 
 Grand Ave. R. Co. v. Peoples' R. Co., 132 Mo. 34 jge 
 
 Grand Ave. R. Co. v. Peoples' K. Co. (Mo.), 6 Am. Electl. Cas. 99. . 59 
 
 168, 185 
 
 Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393 1,2 
 
 Grand Trunk R. Co. v. Ives, 144 U. S. 408 . ...^ 272 ■?8l 
 
 Grant v. Baker, 12 Oreg. 329 ■ - .g 
 
 Grant v. Davenport, 36 Iowa, 396 -_ . 
 
 Graves v. Newark & B. St. Ry. Co., 6 N. J. L. J. 307 44^ 
 
 Gray v. Fort Pitt Tract. Co., 198 Pa. St. 184 ^ ^ !!.!!.!! ! 527 
 
TABLE OF CASES. xlili 
 
 PAGE 
 
 Gray v. Met. St. Ry. Co., 39 App. Div. (N. Y.) 536 528 
 
 Gray v. Rochester City & B. R. Co., 61 Hun (N. Y.), 212 424 
 
 Great Central R. Co. v. Gulf, etc., R. Co., 63 Tex. 529 56 
 
 Great Falls Mfg. Co. v. Garland, 25 Fed. 524 163 
 
 Greeley v. Fed. St. & Pleasant Val. Pass. Ry. Co., 153 Pa. St. 218. . 276 
 
 326 
 
 Green v. Pac. Lumber Co., 130 Cal. 43s 509 
 
 Green v. Portland, 32 Me. 431 67 
 
 Green v. Railway Co. (Md. Ct. App.), 28 Atl. 626 136 
 
 Green Bay, etc., Co. v. Union Steamboat Co., 107 U. S. 98 . . . . 38, 119 
 
 Greene v. Met. St. R. Co., 42 App. Div. (N. Y.) 160 387 
 
 Greene v. Woodland Ave. & W. S. St. R. Co., 62 Ohio St. 67 170 
 
 Green, etc., R. Co. v. Moore, 64 Pa. St. 79 20 
 
 Greenberg v. Third Ave. R. Co., 35 App. Div. (N. Y.) 619 304 
 
 Greengard v. St. Paul City R. Co., 72 Minn. 181 356 
 
 Greenwood v. Union Freight R. Co., 105 U. S. 646 33 
 
 Gregory v. Chicago & N. W. R. Co., 100 Iowa, 345 464 
 
 Grelford v. C. I. & B. R. Co., 6 App. Div. (N. Y.) 204 127 
 
 Gretzner v. New Orleans & C. R. Co. (La.), 29 So. 496 543 
 
 Gress v. Braddock & H. St. Ry. Co., 14 Pa. Super. Ct. 87 326 
 
 Grey v. N. Y. & P. T. Co., 56 N. J. Eq. 463 212 
 
 Griebel v. The Brooklyn H; Ry. Co., 68 App. Div. (N. Y.) 204.... 404 
 
 Grieve v. N. J. R. Co. (N. J. Sup.), 47 Atl. 427 470 
 
 Griffin V. Goldsboro Water Co., 122 N. C. 210 221 
 
 Griffin V. Spencer, 6 Hill (N. Y.), 525 54 
 
 Griffin v. Toledo & M. V. Ry. Co., 21 Ohio C. C. 547 38s, 39i 
 
 Griffing V. Ky. Ins. Co., 3 Bush (Ky.) S92 41 
 
 Griffith V. Denver Consol. Tramway Co., 14 Colo. App. 504 357 
 
 Griffith v. Met. St. Ry. Co., 32 Misc. Rep. (N. Y.) 289 303, 376 
 
 Griffith v. Utica & M. R. Co., 17 N. Y. Supp. 692 526, 555 
 
 Griffiths V. Met. St. R. Co., 63 App. Div. (N. Y.) 86 303, 360, 406 
 
 Gross V. South Chic. City Ry. Co., ^z 111. App. 217 285 
 
 Grotsch V. Steinway R. Co., 19 App. Div. (N. Y.) 130 520, 526 
 
 Groves v. Louisville Ry. Co. (Ky.), 58 S. W. 508 261 
 
 G'Sell V. Met. St. Ry. Co., 35 Misc. Rep. (N. Y.) 387 348 
 
 Gue V. Tide Water Canal Co., 65 U. S. (24 How.) 254 53 
 
 Gulf C. & S. F. R. Co. V. Adams, 3 Tex. Civ. App. Cas., § 422. . 493, 503 
 
 Gulf C. & S. F. R. Co. V. Bell (Tex. Civ. App.), 58 S. W. 614 435 
 
 Gulf C. & S. F. R. Co. v. Killebrew (Tex.), 20 S. W. 182 525 
 
 Gulf C. & S. F. R. Co. v. Moody, 3 Tex. Civ. App. 622 503 
 
 Gulf C. & S. F. R. Co. V. Wilson, 79 Tex. 371 479 
 
 Gulf City St. Ry. Co. v. Galveston St. Ry. Co., 65 Tex. 502 116 
 
 Gulf City St. Ry. Co. v. Gulf, etc., R. Co., 64 Tex. 529 47 
 
 Gumby V. Met. St. R. Co., 29 App. Div. (N. Y.) 335 303 
 
xliv TABLE OF CASES. 
 
 PAGE 
 
 Gumpper v. Waterbury Tract. Co., 68 Conn. 424 277 
 
 Gunn V. Union R. Co. (R. I.), 47 Atl. 888 348 
 
 Guntzer v. Yonkers Ry. Co., 51 App. Div. (N. Y.) 222 482 
 
 Gusthal V. Strong, 23 App. Div. (N. Y.) 315 75 
 
 Gutierrez v. Larago El. Ry. Co. (Tex. Civ. App.), 45 S. W. 310 299 
 
 G. & W. Ry. Co. V. N. Y. C. & H. R. R. Co., 163 N. Y. 228 . . 79, 81, 188 
 Gyger v. Phila., etc., R. Co., 136 Pa. St. 96 7 
 
 H. 
 
 Hafner v. St. Paul City R. Co., 73 Minn. 252 352 
 
 Hagan v. Providence, etc., R. Co., 3 R. I. 81 494 
 
 Hagenlocher v. C. I. & B. R. Co., 99 N. Y. 136 5S0 
 
 Haight v. Hamilton St. R. Co., 29 Ont. 279 314 
 
 Haines v. Cape May, 50 N. J. L. 55 214 
 
 Haines v. Railway Co. (Pa.), 4 Am. Electl. Cas. 42 16, 200 
 
 Hair v. Citizens' Ry. Co. (Tex. Civ. App.), 32 S. W. 1050 330 
 
 Hall v. Ogden City R. Co., 13 Utah, 243 . . 227, 271, 272, 293, 306, 319 
 
 367 
 
 Hall V. Murdoch, 119 Mich. 392 550 
 
 Hall V. Sullivan R. Co., 21 L. R. 138 117 
 
 Hall V. West End St. R. Co., 168 Mass. 461 380 
 
 Halliday v. Brooklyn H. R. Co., 59 App. Div. (N. Y.) 57 . . 319, 372, 406 
 
 Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 380 135 
 
 Haluptzok V. Great Northern R. Co., 55 Minn. 446 455 
 
 Haman v. Omaha Horse R. Co., 35 Nebr. 74 504 
 
 Hamel v. B. H. R. Co., 59 App. Div. (N. Y.) 118 547 
 
 Hamilton v. C. & H., etc., R. Co., 9 Ohio C. P. Dec. 174 66 
 
 Hamilton v. Consol. Tract Co. (Pa.), 50 Atl. 946 512, S16 
 
 Hamilton v. Great Falls St. R. Co., 17 Mont. 334 415 
 
 Hamilton v. Third Ave. R. Co., 6 Misc. Rep. (N. Y.) 382 358 
 
 Hamilton v. Third Ave. R. Co., 53 N. Y. 25 504 
 
 Hamilton v. West End St. R. Co., 163 Mass. 199 416 
 
 Hamilton, Jones v. C. & H. El. St. Ry. Co. (C. P.), s Ohio N. P. 
 
 457 112, 114 
 
 Hamilton & L. E. T. Co. v. Hamilton (Ohio C. P.), i Ohio N. P. 
 
 366 108 
 
 Hamilton St., etc., Co. v. Hamilton & L. E. T. Co., 5 Ohio C. C 
 
 319 '. .■..; 116 
 
 Hammond W. & E. C. El. R. Co. v. Spyzehalski, 17 Ind. App. 7. . 510 
 
 511 
 Hand v. Central Pa. Tel. & S. Co., i Lack. Leg. N. 351 292 
 
 Handy v. ,Met. St. R. Co., 70 App. Div. (N. Y.) 27 [][[ . . " ' _ ' gi2 
 
 Hanlan v. Phila. & W. C. Turnpike Co., 122 Pa. St. 115 ' 267 
 
TABLE OF CASES. xlv 
 
 PAGE 
 
 Hanna v. Met. St. R. Co., 8i Mo. App. 78 3 
 
 Hanna v. Nassau El. R. Co., 18 App. Div. (N. Y.) 137 442, 447 
 
 Hannon v. North Jersey St. Ry. Co. (N. J. Sup.), 47 Atl. 803 357 
 
 Hannum v. Media, etc., Co., 8 Del. Co. Rep. 91 90, 124, 243 
 
 Hansberger v. Sedalia El. Ry. & L. Co., 82 Mo. App. 566. . 415, 458, 547 
 
 Hanselman v. St. Louis, etc., Ry. Co., 88 Mo. App. 123 : . . . . 512 
 
 Hansen v. North Jersey St. Ry. Co. (N. J.), 46 Atl. 718 414, 468 
 
 Hanson v. Third Ave. R. Co., 27 Misc. Rep. (N. Y.) 524 460 
 
 Hanson v. Urbana & C. El. St. Ry. Co., 75 111. App. 474 492 
 
 Harbison v. Met. St. R. Co., 24 Wash. L. Rep. 438 424, 472 
 
 Harden v. Railway Co., 102 Wis. 213 469 
 
 Harkins v. Tract. Co., 173 Pa. St. 149 305, 324, 378 
 
 Harlem River, etc., Co. v. Reynolds, so App. Div. (N. Y.) 575 167 
 
 Harmon v. Penn. Tract. Co. (Pa.), 49 Atl. 755 300 
 
 Harner v. Columbus St. Car R. Co., 29 Ohio L. J. 387 92 
 
 Harper v. Phila. Tract. Co., 175 Pa. St. 129 324 
 
 Harris v. Second Ave. R. Co., 48 App. Div. (N. Y.) 118 548 
 
 Harris v. Union' Ry. Co., 69 App. Div. (N. Y.) 385 482 
 
 Harrisburgh City Pass. Ry. Co. v. Harrisburgh (Pa.), 24 Atl. 56. . 13, 50 
 
 220 
 Harrisburgh, etc., Ry. Co. v. Turnpike Co. (Pa.), 5 Am. Electl. Cas. i. •J^ 
 
 193 
 
 Harrison v. Mt. Auburn Cable Ry. Co., 17 W. L. B. 265 103 
 
 Harroun & Fenn v. Light Co. (N. Y.), 6 Am. Electl. Cas. 357 533 
 
 Hart V. Buckner (C. C. App., sth C), 54 Fed. 925 87 
 
 Hart V. Cedar Rapids & M. C. Ry. Co. (Iowa), 80 N. W. 662 .... 294 
 
 297, 407 
 
 Hart V. Mayor, 16 App. Div. (N. Y.) ^27 107 
 
 Hart V. Met. St. R. Co., 34 Misc. Rep. (N. Y.) 521 492 
 
 Hart V. Met. St. R. Co., 65 App. Div. (N. Y.) 493 542 
 
 Hartford v. Hartford St. R. Co. (Conn.), 47 Atl. 330 246 
 
 Harvey v. Aurora & G. R. Co., 174 111. 295 IS9 
 
 Harvey v. Aurora & G. R. Co., 186 111. 283 76, 159 
 
 Harward v. St. Clair, etc., Co., 51 111. App. 130 569 
 
 Haskell v. Denver Tramway Co. (Col. Sup. Ct.), 46 Pac. 121 132 
 
 Hassan v. Nassau El. Ry. Co., 34 App. Div. (N. Y.) 71 473 
 
 Hastings v. Central Crosstown R. Co., 7 App. Div. (N. Y.) 312... 422 
 
 S18, S19 
 
 Hatch V. Tacoma, O. & G. H. R. Co. (Wash.), 32 Pac. 1063 259 
 
 Hatzung v. Syracuse, 92 Hun (N. Y.), 203 30 
 
 Hauser v. Met. St. R. Co;, 27 Misc. Rep. (N. Y.) 538 27s 
 
 Haver v. Central R. Co., 62 N. J. L. 286 539 
 
 Hawkins v. Front St. Cable Co., 3 Wash. 592 476 
 
 Hawthorne v. Cincinnati St. R. Co., 2 Ohio Dec. 548 347 
 
Xlvi TABLE OF CASES. 
 
 PAGE 
 
 Hayes v. Forty-second St., etc., R. Co., 97 N. Y. 259 452, 473 
 
 Hayes v. Houston, etc., R. Co., 46 Tex. 272 454 
 
 Haynes v. Raleigh Gas Co., 114 N. C. 203 270 
 
 Hays V. Briggs, 3 Pittsb. 504 IS9 
 
 Hays V. Tacoma Ry. & Power Co., 106 Fed. 48 307 
 
 Hayter v. Brunswick Tract. Co. (N. J. Sup.), 49 Atl. 714 441, Soi 
 
 Hazleton Boiler Co. v. Hazleton Tripod Boiler Co., 137 III. 231 53 
 
 Healey v. Brooklyn H. R. Co., 18 App. Div. (N. Y.) 623 368 
 
 Healey v. City Pass. R. Co., 28 Ohio St. 23 502 
 
 Hearn v. St. Charles St. R. Co., 34 La. Ann. 160 529 
 
 Heath v. Des Moines, etc., Ry. Co., 61 Iowa, 11 24, 28 
 
 Heath v. Glens Falls, etc., St. R. Co., 90 Hun (N. Y.), 560. 512 
 
 Heffron v. Detroit City R. Co., 92 Mich. 406 442 
 
 Hegeman v. Western R. Corp., 13 N. Y. 9 431,544 
 
 Heilman v. Lebanon & A. R. Co., 145 Pa. St. 23 136 
 
 Heiman v. Kinnare, 190 111. 156 2^7 
 
 Heimburg v. N. Ry. Co., 162 N. Y. 352 103 
 
 Heinz V. Brooklyn H. R. Co., gi Hun (N. Y.), 640 544 
 
 Helber v. Spokane St. R. Co., 22 Wash. 319 314, 369 
 
 Helgers v. S. I. M. R. Co., 69 App. Div. (N. Y.) 570 566 
 
 Henderson v. Central Pass. Ry. Co., 21 Fed. 358 128 
 
 Henderson v. Detroit Citizens' St. Ry. Co., 116 Mich. 368 ^TJ 
 
 Henderson v. Greenfield & T. F. St. R. Co., 172 Mass. 542 329 
 
 Henderson v. Nassau El. R. Co., 46 App. Div. (N. Y.) 280 468 
 
 Henderson v. Ogden City Ry. Co., 7 Utah, 199 9, 114 
 
 Henderson Belt R. Co. v. Dechamp, 95 Ky. 219 153 
 
 Henderson Bridge Co. v. Kentucky, 106 U. S. 150 592 
 
 Hennessy v. Brooklyn City R. Co., Ti Hun (N. Y.), 569 388 
 
 Henry v. Grant St. El. Ry. Co. (Wash.), 64 Pac. 137 486, 524 
 
 Henry Gaus & Sons Mfg. Co. v. St. Louis, etc., R. Co., 113 Mo. 308. . 138 
 Herdt v. Rochester City & B. R. Co., 48 St. Rep. (N. Y.) 46. .. . 424, 525 
 
 Hergert v. Union R. Co., 25 App. Div. (N. Y.) 218 299, 315 
 
 Hertert v. C, M. & St. Paul Ry. Co. (Pa.), 86 N. W. 266 583 
 
 Hess v. Met. St. Ry. Co., 27 Misc. Rep. (N. Y.) 823 550 
 
 Hestonville R. Co. v. Philadelphia, 89 Pa. St. 210 7, 128 
 
 Hestonville, M. & F. R. Co. v. Biddell (Pa.), 16 Atl. 428 305^ 487 
 
 Hestonville, M. & F. R. Co. v. Biddell (Pa.), 4 Atl. 385 .' 487 
 
 Hestonville Pass. Ry. Co. v. Connell, 88 Pa. St. 520 529 
 
 Heusner v. Houston, etc., Ferry Co., 7 Misc. Rep. (N. Y.) 48 548 
 
 Hickey v. St. Paul City Ry. Co. (Minn.), 5 Am. Electl. Cas. 494. 339, 367 
 
 Hickman v. Nassau El. R. Co., 41 App. Div. (N. Y.) 629 -372 
 
 Hickman v. Union Depot R. Co., 47 Mo. App. 65 298, 367 
 
 Hicks v. Citizens' R. Co., 124 Mo. 115 ^oq' ,j- 
 
 Hicks V. Nassau El. R. Co., 47 App. Div. (N. Y.) 479 375' ^gg 
 
TABLE OF CASES. xlvii 
 
 PAGE 
 
 Higby V. Gilmer, 3 Mont. 97 S4S 
 
 Higgeman v. Western R. Corp., 13 N. Y. (3 Kern.) 9 277 
 
 Higgins V. Brooklyn, Q. C. & S. R. Co., 54 App. Div. (N. Y.) 69. 275, 277 
 
 Higgins V. Watervliet Tp. Co., 46 N. Y. 23 502 
 
 Higgins V. Wilmington City R. Co., i Marv. (Del.) 352 318, 341 
 
 Highland Ave., etc., R. Co. v. Birmingham Union R. Co., 93 Ala. 
 
 SOS 187 
 
 Highland Ave. & B. R. Co. v. Donovan, 94 Ala. 299 468, 472 
 
 Highland Ave. & B. R. Co. v. Matthew (Ala.), 14 L. R. A. 462 140 
 
 Highland Ave. & B. R. Co. v. Robbins (Ala.), 27 So. 422 390, 391 
 
 Highland Ave. & B. R. Co. v. San^json, 112 Ala. 425 306, 367 
 
 Highland Ave. & B. R. Co. v. South, 112 Ala. 642 298 
 
 Highland Ave. & B. R. Co. v. Wynn, 93 Ala. 306 541 
 
 Hill V. Met. St. R. Co., 30 Misc. Rep. (N. Y.) 440 346 
 
 Hill V. New Haven, 37 Vt. 501 546 
 
 Hill v. Ninth Ave. R. Co., 109 N. Y. 239 534 
 
 Hill V. Railroad Co., 109 N. Y. 239 519 
 
 Hill V. Rome St. R. Co., loi Ga. 66 331 
 
 Hill V. Starin, 65 App. Div. (N. Y.) 361 563 
 
 Hilts V. Fgote (Mich.), 84 N. W. 139 389 
 
 Hinchman v. Paterson H. R. Co., 2 C. E. Green (N. J.), 75.... 67, 141 
 
 143, IS4 
 
 Hine v. Bay City Consol. St. R. Co., lis Mich. 204 202 
 
 Hires v. Atlantic City R. Co. (N. J. Sup.), 48 Atl. 1002 565 
 
 Hirschman v. Dry Dock, etc., Co., 46 App. Div. (N. Y.) 621 375 
 
 Hitchcock v. Brooklyn City R. Co., 8 St. Rep. (N. Y.) 848 544 
 
 Hite V. Met. St. R. Co., 130 Mo. 132 518 
 
 Hobson V. New Mexico & A. R. Co. (Ariz.), 11 Pac. 541 546 
 
 Hobson V. N. Y. Condensed Milk Co., 25 App. Div. (N. Y.) iii..., 388 
 
 Hocum V. Weitherick, 22 Minn. 152 546 
 
 Hodges V. So. R. Co., 120 N. C. 5SS ' S23 
 
 Hoelzel v. Crescent City R. Co., 49 La. Ann. 1302 367, 372 
 
 Hoes V. Third Ave. R. Co., S App. Div. (N. Y.) 154 .' 546 
 
 Hoey V. Met. St. R. Co., 70 App. Div. (N. Y.) 60 546, 558 
 
 Hoffman v. Flint & P. M. R. Co., 114 Mich. 316 145 
 
 Hoffman v. N. Y. C, etc., R. Co., 87 N. Y. 25 507 
 
 Hoffman v. Syracuse R. T. Co., 50 App. Div. (N. Y.) 83. . 305, 341, 394 
 
 S08 
 
 Hoffman v. Third Ave. R. Co., 45 App. Div. (N. Y.) 586 452, 544 
 
 Hogan v. Central Park, N. & E. R. R. Co., 124 N. Y. 647 489 
 
 Hogan V. Citizens' St. R. Co., 130 Mo. 36 281 
 
 Hogan V. Eighth Ave. R. Co., 13 N. Y. 380 146 
 
 Hogan V. Railroad Co., 150 Mo. 36 277 
 
 Holbrook v. Utica & S. R. Co., 12 N. Y. 236 344 
 
Xlviii TABLE OF CASES. 
 
 Holdridge v. Mendenhall, io8 Wis. i 302, 384. 
 
 Holland v. West End St. R. Co., iSS Mass. 387 532 
 
 Holley V. Atlanta St. Ry. Co., 61 Ga. 215 41S, Soo 
 
 Hollingsworth v. Cincinnati St. R. Co., 21 Ohio C. C. 536 518 
 
 Holloway v. Pasadena & P. Ry. Co., 130 Cal. 177 420, 468 
 
 Holmes v. Ashtabula R. T. Co., lo O. C. D. 638 414, 484, 5S6 
 
 Holmgren v. St. Paul City Ry. Co. (Minn.), 5 Am. Electl. Cas. 481.. 313 
 
 36(S 
 Holohan v. Washington & G. R. Co. (D. C), 18 Wash. L. Rep. 751- 4SS 
 
 Holt V. S. W. Mo. El. Ry. Co., 84 Mo. App. 443 416, 427 
 
 Holwerson v. St. Louis & S. Ry. Co., 157 Mo. 216 306 
 
 Holzab V. New Orleans, etc., Co., 38 La. Ann. 185 388, 512 
 
 Holzman v. Met. St. R. Co., 31 Misc. Rep. (N. Y.) 644 345, 508 
 
 Homestead St. Ry. Co. v. Pittsb., etc., R. Co., 166 Pa. St. 162...... 6s 
 
 Hook V. Los Angeles Ry. Co., 129 Cal. 180 178, 328 
 
 Hooper v. Baltimore City Pass. R. Co., 85 Md. 509 201 
 
 Hooper v. United Tract. Co., 17 Pa. Super. Ct. 638 516 
 
 Hopkins v. Utah N. Ry. Co., 2 Ida. 280 545 
 
 Horgan v. Jones, 131 Cal. 521 299 
 
 Hornellsville R. Co. v. N. Y., L. & W. R. Co., 83 Hun (N. Y.), 
 
 407 189 
 
 Hot Springs St. R. Co. v. Bert, 69 111. 388 318 
 
 Hot Springs St. R. Co. v. Johnson, 64 Ark. 420 296, 318 
 
 Hough V. Railway Co., 100 U. S. 226 545, 
 
 Hourney v. Brooklyn City R. Co., 27 St. Rep. (N. Y.) 49 471 
 
 Houston V. Houston Belt, etc., R. Co., 84 Tex. 590 47, 108, 200, 247 
 
 Houston V. Jeff. Coll., 63 Pa. St. 420 39, 
 
 Houston City St. R.' Co. v. Farrell, 27 S. W. 942 301, 385 
 
 Houston City St. R. Co. v. Richart, 87 Tex. 539 321 
 
 Houston City St. R. Co. v. Woodlock (Tex. Civ. App.), 29 S. W. 
 
 8'7 301, 3S3 
 
 Houston ■& T. C. R. Co. v. Clemmons, 55 Tex. 88 433 
 
 Houston & T. C. R. Co. v. Dotson, 15 Tex. Civ. App. 73 527 
 
 Houston & T. C. R. Co. v. Iseo (Tex. Civ. App.), 60 S. W. 313 414 
 
 Hovelman v. Kansas City R. Co., 79 Mo. 632 21 247 
 
 Hovey v. Mich. Tel. Co., 124 Mich. 607 292 
 
 Howe v. West End St. R. Co., 167 Mass. 46 136 
 
 Howell v. Rochester Ry. Co., 24 App. Div. (N. Y.) 502 387 403 
 
 Hoyle V. New Orleans City R. Co., 23 La. Ann. 535 241 
 
 Hubbard v. Town of Mason City, 60 Iowa, 400 r,» 
 
 Huber v. La Crosse City R. Co., 92 Wis. 636 292 ■^K-t 
 
 Huber v. Nassau El. Ry. Co., 22 App. Div. (N. Y.) 426 ■jie 
 
 Hudson V. Lynn & B. R. Co. (Mass.), S9 N. E. 647 ^77^ 532 
 
 Hudson R. Tel. Co. v. Watervliet Tp. & R. Co., 135 N. Y. 303 17' ct 
 
 74, 109, 201, 280, 287 
 
TABLE OF CASES. xHx 
 
 PAGE 
 
 Huerzler v. Central Crosstown R. Co., i Misc. Rep. (N. Y.) 136. . 326 
 
 Hughes V. Camden & S. Ry. Co., 65 N. J. L. 203 325 
 
 Hughes V. N. Pacific Ry. Co., 18 Fed. 106 48 
 
 Hulehan v. Green Bay, etc., R. Co., 68 Wis. 527 546 
 
 Hulett V. Brooklyn H. R. Co., 63 App. Div. (N. Y.) 423 316 
 
 Hulett V. Mo., K. & T. Ry. Co., 80 Mo. App. 87 167 
 
 Humphrey v. Pegues, 83 U. S. (16 Wall.) 244 55 
 
 Hunt V. Chicago Horse, etc., R. Co., 121 111. 638 103, 131 
 
 Hunt V. West Jersey Tract. Co. (N. J. Ch.), 49 Atl. 434 193 
 
 Hunter v. Consol. Tract. Co., 193 Pa. St. 557 375 
 
 Hunter v. Third Ave. R. Co., 21 Misc. Rep. (N. Y.) i 345 
 
 Huntting v. Hartford St. Ry. Co., 73 Conn. 179 266 
 
 Hurley v. West End St. Ry. Co. (Mass.), 62 N. E. 263 512 
 
 Hutchins v. Macomber, 68 N. H. 473 484 
 
 Hutchinson v. Borough of Belmar, 62 N. J. L. 450. . 76, 81, 106, 107, 123 
 
 Hutchinson v. St. Louis, etc., Ry. Co., 88 Mo. App. 376 512 
 
 Hyer v. Richmond Tract. Co., 168 U. S. 471 130 
 
 Hyer v. Richmond Tract. Co., 42 U. S. App. 522 89 
 
 I. 
 
 Idaho, etc., Co. v. Fireman's Fund Ins. Co., 8 Utah, 46 550 
 
 Illinois C, R. Co. V. Aland, 94 111. App. 428 564 
 
 Illinois C. R. Co. v. Cheek, 152 Ind. 663 458 
 
 Illinois C. R. Co. v. Chicago, 176 U. S. 646. 78 
 
 Illinois C. R. Co. v. Davidson (C. C. App., 7th C), 76 Fed. 517 414 
 
 Illinois C. R. Co. v. Kuhn (Tenn.), 64 S. W. 202 420, 423 
 
 Illinois C. R. Co. v. Miner, 6g Miss. 710 498 
 
 Illinois C. R. Co. v. O'Keefe, 168 111. 115 447 
 
 Illinois C. R. Co. v. Sheehan, 29 111. App. 90 533 
 
 Illinois C. R. Co. V. Stewart (Ky.), 63 S. W. 596 564 
 
 Illinois, etc., R. Co. v. Cook, 29 111. 237 32 
 
 Illinois River R. Co. v. Zimmer, 20 111. 654 iii 
 
 Indianapolis v. Navin, 151 Ind. 144 222 
 
 Indianapolis v. Sturdevant, 24 Ind. 391 573 
 
 Indianapolis Cable St. R. Co. v. Citizens' St. R. Co., 127 Ind. 369. . 114 
 
 Indianapolis, etc., R. Co. v. Jones, 29 Ind. 465 170, 173 
 
 Indianapolis, P. & C. R. Co. v. Pitzer, 109 Ind. 179 530 
 
 Indianapolis St. Ry. Co. v. Robinson (Ind.), 61 N. E. 197 390, 421 
 
 468, 546 
 
 Indianapolis St. Ry. Co. v. Robinson (Ind.), 61 N. E. 936 S52 
 
 Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 298 414, 545 
 
 Ir.gersoll v. Nassau El. Ry. Co., 157 N. Y. 4S3 5, 16, 81, 181 
 
 International & G. N. R. Co. v. Miller (Tex. Civ. App.), 28 S. W. 
 
 233 498 
 
 iv 
 
1 TABLE OF CASES. 
 
 PAGE 
 
 International & G. N. R. Co. v. Sampson (Tex. Civ. App.), 64 S. W. 
 
 692 S66 
 
 International & G. N. R. Co. v. Williams, 20 Tex. Civ. App. 587. 469, 511 
 International & G. N. R. Co. v. Woodward (Tex. Civ. App.), 63 
 
 S. W. 1051 564 
 
 Inter-State Commerce Commission v. Baltimore, etc., Ry., 43 Fed. 
 
 42 ■ 221 
 
 Inter-State Consol. R. T. Co. v. Early (Kan.), 26 Pac. 422 266 
 
 Inter-State Consol. R. T. Co. v. Simpson, 45 Kan. 714 166 
 
 Iron City Bank v. Pittsburg, yj Pa. St. 340 41 
 
 Iron Mt. R. Co. v. Memphis, Z7 C. C. A. 410 126 
 
 Irvine v. Atl. Ave. R. Co., 23 App. Div. (N. Y.) 112 75 
 
 Irvine v. Atl. Ave. R. Co., 10 App. Div. (N. Y.) 560 214 
 
 Isaacs V. Third Ave. R. Co., 47 N. Y. 122 496, 502 
 
 Isaackson v. Railway Co., 75 Minn. 27 277 
 
 Ivey V. Brooklyn H. R. Co., 71 N. Y. Supp. 633 411 
 
 J. 
 
 Jackson v. Grand Ave. R. Co., 118 Mo. 199 484, 531 
 
 Jackson v. Phila. Tract. Co., 182 Pa. St. 104 526 
 
 Jackson v. St. Louis S. W. Ry. Co., 52 La. Ann. 1706 487 
 
 Jackson v. St. Paul City R. Co., 74 Minn. 48 489 
 
 Jackson v. Second Ave. R. Co., 47 N. Y. 274 504 
 
 Jackson v. United Tract. Co., 18 Pa. Super. Ct. 2u 512 
 
 Jackson Co. v. Sioux City & S. P. R. Co. (Minn.), 84 N. W. 794. . . . 593 
 
 Jackson, etc., R. Co. v. Inter-State R. T. Co., 24 Fed. 306 116 
 
 Jackson Ry., L. & P. Co. v. Lowry (Miss.), 30 So. 634 434, 461 
 
 Jackson & S. St. R. Co. v. Simmons (Tenn.), 64 S. W. 705 . . 291, 312, 409 
 
 Jacksonville v. Lamb, 86 III. App. 487 300 
 
 Jacksonville St. R. Co. v. Chappell, 22 Fla. 616 539 
 
 Jacobs v. Third Ave. R. Co., 34 Misc. Rep. (N. Y.) 512. . 443, 446, 501 
 
 Jacobs v. West End St. Ry. Co. (Mass.), 59 N. E. 639 543 
 
 Jacquin v. Grand Ave. Cable Co., 57 Mo. App. 320 316 
 
 Jacquinto v. Broadway & S. A. R. Co., 49 St. Rep. (N. Y.) 627 529 
 
 Jager v. Coney Isl. & B. R. Co., 84 Hun (N. Y.), 307 357 
 
 Jagger v. People's St. R. Co., 180 Pa. St. 436 484 
 
 Jamison v. San Jose & S. C. R. Co., 55 Cal. 593 272 
 
 Jarvis v. Met. St. R. Co., 65 App. Div. (N. Y.) 490 563 
 
 Jaynes v. Omaha St. R. Co., 53 Nebr. 631 130 
 
 Jefferson v. Birmingham Ry. & E. Co., 116 Ala. 294 480 
 
 Jeffersonville R. Co. v. Riley, 39 Ind. 568 ^qg 
 
 Jeffersonville, M. & I. R. Co. v. Rogers, 38 Ind. 116 405 
 
 Jenkins v. Brooklyn H. R. Co., 30 App. Div. (N. Y.) 622 442 
 
TABLE OF CASES. ll 
 
 PAGE 
 
 Jenkins v. Brooklyn H. R. Co., 29 App. Div. (N. Y.) 8 444, 445 
 
 Jersey City v. Jersey City, etc., R. Co., 20 N. J. Eq. 360 13, 186 
 
 Jersey City, etc., R. Co. v. Jersey City, etc., H. R. Co., 21 N. J. Eq. 
 
 61 186 
 
 Johnsen v. Oakland, etc., Ry. Co., 127 Cal. 608 518 
 
 Johnson v. Brooklyn H. R. Co., 34 App. Div. (N. Y.) 271 344 
 
 Johnson v. Brooklyn H. R. Co., 63 App. Div. (N. Y.) 374 469 
 
 Johnson v. Christopher & Tenth St. R. Co., i Abb. N. C. (N. Y.) 75. 232 
 
 Johnson v. H. R. R. Co., 20 N. Y. 65 j. 297, 545 
 
 Johnson v. New Orleans (La. 1901), 29 So. 355 pa 
 
 Johnson v. Old Colony R. Co. (R. I.), 29 Atl. 594 140 
 
 Johnson v. Owensboro & N. R. Co., 18 Ky. L. Rep. 276 107 
 
 Johnson v. Phila., 60 Pa. St. 445 233, 596 
 
 Johnson v. Reading City Pass. R. Co., 160 Pa. St. 647 294, 379 
 
 Johnson v. Rochester Ry. Co., 70 N. Y. Supp. 113 315 
 
 Johnson v. St. Paul City Ry. Co., 67 Minn. 260 388 
 
 Johnson v. Stewart, 62 Ark. 164 384 
 
 Johnson v. Superior R. T. R., 91 Wis. 233 384 
 
 Johnson v. Third Ave. R. Co., 69 App. Div. (N. Y.) 247 486 
 
 Johnson v. West Side St. Ry. Co., 10 W. L. B. 345 88 
 
 Joliet St. Ry. Co. v. Duggan, 45 111. App. 450 514 
 
 Jonas V. Long Isl. R. Co., 21 Misc. Rep. (N. Y.) 206. 520 
 
 Jones V. Bait. & O. R. Co., 4 App. D. C. 158 523 
 
 Jones V. Brooklyn H. R. Co., 10 Misc. Rep. (N. Y.) 543 304, 379 
 
 Jones V. Erie & W. Va. R. Co., 144 Pa. St. 629 140 
 
 Jones V. Finch (Ala.), 29 So. 182 292 
 
 Jones V. Niagara Junction Ry., 64 App. Div. (N. Y.) 24 410 
 
 Jones V. Third Ave. R. Co., 68 St. Rep. (N. Y.) 832 273, 408 
 
 Jones V. Union R. Co., 18 App. Div. (N. Y.) 268 273, 284 
 
 Jones V. United Tract. Co. (Pa. Sup.), 50 Atl. 826 529 
 
 Jonesboro v. Cairo, etc., St. Ry. Co., no U. S. 192 31 
 
 Joslin v. Grand Rapids, etc., Co., 53 Mich. 322 550 
 
 Joyce V. Halifax St. R. Co., 24 N. S. 113 261 
 
 Junction Pass. Ry. Co. v. Williamsport Pass. Co., 154 Pa. St. 116. 108, 113 
 
 K. 
 
 Kaechele v. Tract. Co., 15 Pa. Super. Ct. 73 297 
 
 Kane v. N. Y. Elev. R. Co., 125 N. Y. 164 I49 
 
 Kankakee El. R. Co. v. Lade, 56 111. App. 454 330 
 
 Kankakee El. R. Co. v. Whitemore, 4S HI- App- 484 283 
 
 Kansas & A. V. R. Co. v. White (C. C. App., 8th C), 67 Fed. 481 . . S22 
 
 Kansas City v. Corrigan Consol. St. Ry. Co., 86 Mo. 67 257 
 
 Kansas City, etc., Ry. v. Phillibert, 25 Kan. 586 545 
 
lii TABLE OF CASES. 
 
 PAGE 
 
 Kansas City, etc., Ry. v. Sanders, 98 Ala. 293 495 
 
 Kansas, etc., Ry. v. Northwestern Coal & M. Co. (Mo.), 51 L. R. A. 
 
 936 167 
 
 Kansas, N. & D. R. Co. v. Mahler (Kan.), 26 Pac. 22 14S 
 
 Kansas Pac. R. Co. v. Kessler, 18 Kan. 532 495 
 
 Kantrowitz v. Met. St. R. Co., 63 App. Div. (N. Y.) 65 457 
 
 Karrigan v. Ninth Ave. R. Co., 44 App. Div. (N. Y.) 116 401 
 
 Katz V. Brooklyn H. R. Co., 35 Misc. Rep. (N. Y.) 302 411 
 
 Katzenberger v. Lawo, 90 Tenn. 235 7 
 
 Kaufman v. Manhattan Ry. Co., 68 App. Div. (N. Y.) 94 393 
 
 Kavanagh v. Wilson, 70 N. Y. 179 546 
 
 Kay V. Glade Creek & R. Co. (W. Va.), 35 S. E. 973 167 
 
 Kay v. Met. St. R. Co., 163 N. Y. 447 336, 394, 400 
 
 Kean v. West Chicago St. R. Co., 75 111. App. 38 471 
 
 Keating v. N. Y. C. R. Co., 49 N. Y. 673 450 
 
 Keator v. Scranton Tract. Co., 191 Pa. St. 102 446 
 
 Keegan v. Third Ave. R. Co., 34 App. Div. (N. Y.) 297 509, 553 
 
 Keegan v. Third Ave. R. Co., 165 N. Y. 622 414 
 
 Keen v. Detroit El. R. Co. (Mich.), 81 N. W. 1084 442 
 
 Keitel v. St. Louis, etc., Ry. Co., 28 Mo. App. 651 242 
 
 Kelley v. Brooklyn H. R. Co., 12 Misc. Rep. (N. Y.) 568 358 
 
 Kelley v. Louisville R. Co., 20 Ky. L. Rep. 471 385 
 
 Kelley v. Met. St. R. Co., 25 Misc. Rep. (N. Y.) 194 276 
 
 Kelley v. Pittsb. & B. Tract. Co., lo Pa. Super. Ct. 644 406 
 
 Kelley v. Third Ave. R. Co., 25 App. Div. (N. Y.) 603 558 
 
 Kelley v. Wakefield & S. St. R. Co. (Mass.), 56 N. E. 285 370 
 
 Kelley v. Wakefield & S. St. R. Co. (Mass.), 61 N. E. 139 366 
 
 Kellinger v. Forty-second St. & G. S. F. R. Co., 50 N. Y. 206 151 
 
 Kelly v. N. Y. & C. B. Ry. Co., 109 N. Y. 44 429, 483 
 
 Kennedy v. Detroit R. Co., 108 Mich. 390 256 
 
 Kennedy v. St. Louis R. Co., 43 Mo. App. i i 375 
 
 Kennedy v. St. Paul City Ry. Co. (Minn.), 5 Am. Electl. Cas. 492. 339 
 
 363 
 
 Kennedy v. So. Ry. Co. (S. C), 38 S. E. 169 540 
 
 Kennedy v. Strong, 14 Johns. (N. Y.) 128 47 
 
 Kennedy v. Third Ave. R. Co., 31 App. Div. (N. Y.) 30 299, 319, 339 
 
 Kenney v. N. Y. C. & H. R. R. Co., 49 Hun (N. Y.), 535 .' 391 
 
 Kennon v. Railroad Co., 51 La. Ann 1599 .-^ 
 
 Kent V. Common Council of Binghamton, 61 App. Div. (N. Y.) 323. 172 
 
 Kentucky C. R. Co. v. Thomas, 79 Ky. 160 ,45 
 
 Kenyon v. N. Y., etc., R. Co., 5 Hun (N. Y.), 479 .'/ 521 
 
 Keokuk Northern Line, etc., Co. v. Drew, 88 111. 608 406 
 
 Keokuk & W. R. Co. v. Mo. R. Co., 152 U. S. 301 569, 576 
 
 Keokuk & W. R. Co. v. Scotland Co. Ct., 152 U. S. 317 ..__' 5^5 
 
TABLE OF CASES. Hii 
 
 PAGE 
 
 Keough V. Pittston, etc., R. Co., 5 Lack. Leg. N. (Pa.) 242 12, 65 
 
 Kern v. Second Ave. Tract. Co., 194 Pa. St. 75 368 
 
 Kerr v. Atlantic Ave. R. Co., 10 Misc. Rep. (N. Y.) 264 304, 358 
 
 Kessler v. Brooklyn H. R. Co., 3 App. Div. (N. Y.) 426 343 
 
 Kessler v. Citizens' St. R. Co., 20 Ind. App. 427 300 
 
 Kestner v. Pittsb. & B. Tract. Co., 158 Pa. St. 422 294 
 
 Kierzenkowski v. Phila. Tract. Co., 1B4 Pa. St. 459 302 
 
 Kiley v. Chicago City Ry. Co., 90 111. App. 275 442, 501 
 
 Killeen v. Brooklyn H. R. Co., 48 App. Div. (N. Y.) 557 293, 380 
 
 Kimber v. Met. St. R. Co., 69 App. Div. (N. Y.) 353 523 
 
 King V. 111. C. R. Co., 69 Miss. 245 507 
 
 King V. Railway Co., i Pennewill (Del.), 452 511 
 
 Kinkade v. Atlantic Ave. R. Co., 9 Misc. Rep. (N. Y.) 273. . 454, 461, 467 
 
 Kinney v. Louisville & N. R. Co., 17 Ky. L. Rep. 1405 499 
 
 Kinsley v. Pratt, 148 N. Y. 372 351 
 
 Kinsman St. Ry. Co. v. Broadway, etc., R. Co., 36 Ohio St. 239. 117, 178 
 
 Kird v. New Orleans & N. W. R. Co. (La.), 29 So. 729 415 
 
 Kissane v. Detroit, Y. & A. A. R. Co. (Mich.), 79 N. W. 1104 436 
 
 Kissock V. Consol. Tract. Co., 15 Pa. Super. Ct. 103 306, 406 
 
 Kitay v. Brooklyn, Q. C. & S. Ry. Co., 23 App. Div. (N. Y.) 228. . 303 
 Kitchell v. Manchester R. & El. R. Co., 79 Mo. App. 340.. 113, 217, 245 
 
 Kittinger v. Buffalo Tract. Co., 160 N. Y. 377 30 
 
 Klatt V. Houston El. St. Ry. Co. (Tex. Civ. App.), 57 S. W. 1112. . 331 
 
 Kleiber v. People's R. Co., 107 Mo. 240 515 
 
 Klein v. Crescent City R. Co., 23 La. Ann. 729 394 
 
 Kleiner v. Third Ave. R. Co., 162 N. Y. 193 399 
 
 Kline v.. El. Tract. Co., 181 Pa. St. 276 317 
 
 Knickerbocker v. Colver, 8 Cow. (N. Y.) iii 313 
 
 Knight V. N. Met. T. Co. (Q. B.), 7 Law T. Rep. 227 508 
 
 Knoker v. Canal & C. R. Co., 52 La. Ann. 806 347 
 
 Knoll V. Third Ave. R. Co., 46 App. Div. (N. Y.) 527 299, 400 
 
 Knorr v. Miller, S Ohio C. C. 609 31, 87, 88, 103 
 
 Knowlton v. Atley, 8 Cush. (Mass.) 95 47 
 
 Knowlton v. Milwaukee City Ry. Co., 59 Wis. 278 512 
 
 Knoxville v. Africa (C. C. App., 6th C), 77 Fed. 501 77 
 
 Knoxville v. Africa (C. C, E. Dist., Tenn.), 70 Fed. 729 120 
 
 Knoxville & O. R. Co. v. Harris, 99 Tenn. 684 568, 574 
 
 Knoxville Tract. Co. v. Lane, 103 Tenn. 376 492 
 
 Koch V. North Ave. R. Co. (Md.), 23 Atl. 463 136 
 
 Koch V. St. Paul City R. Co., 45 Minn. 407 341 
 
 Koehler v. N. Y. Elev. R. Co., 159 N. Y. 218 154 
 
 Koehler v. Rochester, etc., R. Co., 66 Hun (N. Y.), 566 389 
 
 Koehne v. N. Y. & Q. C. R. Co., 165 N. Y. 603 271, 414 
 
 Koersen v. Newcastle El. St. Ry. Co., 198 Pa. St. 26 374 
 
liv TABLE OF CASES. 
 
 TAGE 
 
 Kohler v. West Side R. Co., 99 Wis. 33 484. S23 
 
 Kostuch V. St. Paul City Ry. Co. (Minn.), 81 N. W. 215 344 
 
 Kowalski v. Newark Pass. Ry. Co., 13 N. J. L. J. 50 424 
 
 Kramer v. New Orleans City & L. R. Co., 51 La. Ann. 1689 343 
 
 Krattz V. Brush El. Light Co., 82 Mich. 457 292 
 
 Kraut V. Frankford, etc., R. Co., 160 Pa. St. 327 273 
 
 Kreusen v. Forty-second St., etc., R. Co., 13 N. Y. Supp. 588. ..... 499 
 
 Krulevitz v. Eastern R. Co., 143 Mass. 228 S07 
 
 Kuhlman v. Met. St. R. Co., 29 Misc. Rep. (N. Y.) 773 484 
 
 Kuhlman v. Met. St. R. Co., 30 Misc. Rep. (N. Y.) 417 555 
 
 Kuhnen v. Union Ry. Co., lo App. Div. (N. Y.) 19s 29s 
 
 Kunz V. Brooklyn H. R. Co., 25 Misc. Rep. (N. Y.) 334 180 
 
 Kunzmann v. N. Y., etc., R. Co., 8 Misc. Rep. (N. Y.) 689 549 
 
 / 
 
 Lacas v. Detroit City R. Co., 92 Mich. 412 514 
 
 La Crosse City R. Co. v. Higbee, 107 Wis. 389 I3S 
 
 Lacs V. Everard's Breweries, 61 App. Div. (N. Y.) 431 562 
 
 Ladd V. Brockton St. Ry. Co. (Mass. Sup.), 62 N. E. 730 536 
 
 Laethan v. Fort Wayne & B. I. R. Co., 100 Mich. 297 308 
 
 La Fitte v. Railroad Co. (La.), 8 So. 701 492, 496, 508 
 
 La Grange, etc., R. Co. v. Raney, 7 Coldw. (Tenn.) 420 45 
 
 Lahey v. Central Park, N. & E. R. R. Co., 51 St. Rep. (N. Y.) 589.. 353 
 
 Laidlaw v. Sage, 158 N. Y. y^ 303 
 
 Laird v. Pittsb. Tract. Co., 166 Pa. St. 4 441 
 
 Lake v. Cincinnati Inc. P. R. Co., 13 Ohio C. C. 494 476 
 
 Lake Erie, etc., R. Co. v. Arnold (Ind.), 59 N. E. 394 540 
 
 Lake Erie, etc., R. Co. v. Christison, 39 111. App. 49s 495 
 
 Lake Erie & W. R. Co. v. Comrs. of Hancock Co., 63 Ohio St. 23. . 162 
 
 Lake Erie & W. R. Co. v. Mathews, 13 Ind. App. 355 488, 504 
 
 Lake Roland Elev. R. Co. v. Baltimore (Md.), 20 L. R. A. 126. ... 78 
 
 Lake Roland Elev. R. Co. v. McKewen, 80 Md. 593 319, 372 
 
 Lake Shore, etc., Ry. Co. v. Prentice, 147 U. S. loi 494 
 
 Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285 438 
 
 Lake Shore & M. S. R. Co. v. Kelsey, 180 111. 13a 526 
 
 Lake Shore & M. S. R. Co. v. Salzman, 52 Ohio St. 558 530 
 
 Lamb v. St. Louis Cable & West. Ry. Co., 33 Mo App. 489 228 
 
 Lamm v. Chicago, St. P., M. & O. R. Co., 45 Minn. 71 149 
 
 Landrigan v. Brooklyn H. R. Co., 23 App. Div. (N. Y.) 43 527 
 
 Lane v. City of Syracuse, 12 App. Div. (N. Y.) 118 277 
 
 Lanfer v. Bridgeport Tract. Co., 68 Conn. 473 310 ^g, 
 
 Lang v. Houston, W. S. & P. F. R. Co., 75 Hun (N. Y.), 151 .' 357 
 
 Langin v. N. Y. & B. Bridge, IQ App. Div.. (N. Y.) 529 486 
 
TABLE OF CASES. Iv 
 
 PAGE 
 
 Lanline v. Houston, etc., Co., 14 Daly (N. Y.), 144 220, 451 
 
 Lansing v. Coney Isl. & B. R. Co., 16 App. Div. (N. Y.) 146 518 
 
 Lansing V. Lansing City El. R. Co., 109 Mich. 123 258 
 
 Laredo El. & Ry. Co. v. Hamilton (Tex. Civ. App.), 56 S. W. 998. 264 
 Larrimer, etc., Ry. Co. v. Larrimer St. Ry. Co., 137 Pa. St. 533. 131, 245 
 
 Larson v. Central R. Co., 56 HI- App. 263 270 
 
 Laschinger v. St. Paul City R. Co. (Minn.), 87 N. W. 836 353 
 
 Lasker v. Third Ave. R. Co., 27 Misc. Rep. (N. Y.) 824 478 
 
 Laughlin v. Railroad Co., 62 Mich. 220 276 
 
 Laughlin v. St. R. Co., 80 Mich. 154 550 
 
 Lauman v. Lebanon Val. R. Co., 30 Pa. St. 42 174 
 
 Lauson v. Met. St. R. Co., 40 App. Div. (N. Y.; 312 299 
 
 Lavis V. Newton (C. C, So. Dist., Iowa), 75 Fed. 885 123 
 
 Lawler v. Hartford St. R. Co., 72 Conn. 74 269 
 
 Lawrence Co. v. Newcastle El. St. R. Co., 8 Pa. Super. Ct. 313. 194, 195 
 
 Lawson v. Met. St. R. Co., 40 App. Div. (N. Y.) 307 295, 319, 339 
 
 343. 3S8 
 
 Lawton v. Steele, 152 U. S. 133 35 
 
 Lax V. Forty-second St., etc., R. Co., 97 N. Y. 259 473 
 
 Leahey v. Cass Ave., etc., Ry. Co., 97 Mo. 165 550 
 
 Leary V. Railroad Co., 173 Mass. 373 421,463 
 
 Leavenworth El. Co. v. Cusick, 60 Kan. 590 455, 481 
 
 Ledman v. D. D., etc., Co., 28 App. Div. (N. Y.) 197 375 
 
 Lee V. Market St. Ry. Co. (Cal.), 67 Pac. 765 522 
 
 Lee V. Schuylkill Val. Tract. Co. (C. P. Pa.), 13 Mont. Co. L. Rep. 
 
 91 341 
 
 Lee V. Union R. Co., 12 R. L 383 276 
 
 Leeper v. Texas, 139 U. S. 462 S70 
 
 Lefkowitz v. Met. St. R. Co., 26 Misc. Rep. (N. Y.) 787 340 
 
 Legare v. Union Ry. Co., 61 App. Div. (N.. Y.) 202 299 
 
 Lehigh Coal, etc., Co. v. Inter-Co. St. Ry. Co., 167 Pa. St. 75 65 
 
 Lehigh Val. R. Co. v. Bradford Co. Comrs., 24 Pa. Co. Ct. 537 .... 581 
 
 Lehr v. S. & H. P. R. Co., 118 N. Y. 556 467, S26 
 
 Lenkner v. Citizens' Tract. Co., 179 Pa. St. 486 339, 361 
 
 Leonard v. Brooklyn H. R. Co., 57 App. Div. (N. Y.) 125 415, 429" 
 
 430, S13, 561 
 
 Lesan v. Me. Central R. Co., 77 Me. 85 544- 
 
 Lesser v. St. Louis & S. Ry. Co., 85 Mo. App. 326 433 
 
 Levi V. Campbell (Tex.), 19 S. W. 438 41S 
 
 Levi V. Lynn, etc., R. Co., 11 Allen (Mass.), 300 2 
 
 Levin v. Second Ave. Tract. Co. (Pa.), 50 Atl. 225 528 
 
 Leving v. Second Ave. Tract. Co., 194 Pa. St. 156 304 
 
 Levis V. Newton (C. C. So. Dist., Iowa), 75 Fed. 885 123 
 
 Levy V. Met. St. Ry. Co., 34 Misc. Rep. (N. Y.) 220 392 
 
Ivi TABLE or CASES. 
 
 PAGE 
 
 Lewin v. Lehigh Val. R. Co., 41 App. Div. (N. Y.) 89 388 
 
 Lewis V. Binghamton R. Co., 35 App. Div. (N. Y.) 12 352 
 
 Lewis V. Cincinnati St. Ry. Co., 10 Ohio S. C. P. Dec. 53- • 226, 365, 406 
 
 Lewis V. Long Isl. R. Co., 162 N. Y. 52 30i, 457 
 
 Lewis V. N. Y. & H. R. Co., 162 N. Y. 202 I49 
 
 Lewiston, etc., R. Co. v. Ayer, 27 App. Div. (N. Y.) 571 166 
 
 Lewiston W. & P. Co. v. Asotin Co., 24 Wash. 371 586 
 
 Lexington Ry. Co. v. Cozine (Ky.), 64 S. W. 848 493 
 
 Lexington & O. Ry. Co. v. Applegate, 8 Dana (Ky.), 289 25 
 
 Leyh v. Newburgh El. Ry. Co., 41 App. Div. (N. Y.) 218 428 
 
 Lezensky v. Met. St. Ry. Co. (C. C. App., 2d C), 59 U. S. App. 588. 508 
 
 Lhowe V. Third Ave. R. Co., 14 Misc. Rep. (N. Y.) 612 375 
 
 Libby v. Me. C. R. Co., 85 Me. 34 423. 43i. 498 
 
 Liddy v. St. Louis R. Co., 40 Mo. 506 228 
 
 Liekens v. Staten Isl. M. R. Co., 64 App. Div. (N. Y.) 327 393 
 
 Lifschitz V. D. D., E. B. & B. R. Co., 67 App. Div. (N. Y.) 602. ... 379 
 
 Light v. Harrisburgh & M. El. R. Co., 4 Pa. Super. Ct. 427 504 
 
 Lightcap V. Phila. Tract. Co. (C. C. E. D., Pa.), 60 Fed. 212 329 
 
 Limburger v. San Antonio R. T. St. R. Co. (Tex.), 30 S. W. 533- • 136 
 
 Limburger v. San Antonio R. T. R. Co. (Tex.), 27 S. W. 198 152 
 
 Lincoln v. Walker, 18 Nebr. 247 545 
 
 Lincoln & Ken. B. K. v. Richardson, i Me. 79 39, iii 
 
 Lincoln R. T. Co. v. Nichols, 37 Nebr. 332 330 
 
 Lincoln St. R. Co. v. City of Lincoln (Nebr.), 84 N. W. 802 63, 107 
 
 219, 2S4 599, 601 
 
 Lincoln St. R. Co. v. Cox, 48 Nebr. 807 534 
 
 Lincoln St. R. Co. v. McClelland, 54 Nebr. 672 414 
 
 Lindemann v. Brooklyn H. R. Co., 69 App. Div. (N. Y.) 442 547 
 
 Linden Land Co. v. Milwaukee, etc., Co. (Wis.), 83 N. W. 851.. 113, 168 
 
 Lines v. Winnipeg El. St. R. Co., 11 Manitoba, 77 330 
 
 Link V. Brooklyn H. R. Co., 64 App. Div. (N. Y.) 406 551 
 
 Little V. St. Ry. Co., 78 Mich. 205 297, 352 
 
 Little V. Superior R. T. Ry. Co., 88 Wis. 402 366, 385 
 
 Little Lake, etc., R. Co. v. Harrell, 58 Ark. 454 388 
 
 Little Rock Tract. & El. Co. v. Morrison (Ark.), 62 S. W. 1045 279 
 
 Little Rock Tract. & El. Co. v. Dunlap, 68 Ark. 291 282 
 
 Little Rock Tract. & El. Co. v. Nelson, 66 Ark. 494 489, 527 
 
 Little Rock Tract. & El. Co. v. Walker, 64 Ark. 144 507 
 
 Little Saw-mill Val. Tp. or P. R. Co. v. Federal St., etc., R. Co. 
 
 194 Pa. St. 144 ' ig3 
 
 Littmann v. D. D., etc., R. Co., 6 Misc. Rep. (N. Y.) 34 476 
 
 Livingston v. Bishop, i Johns. (N. Y.) 29a ,j, 
 
 Lloyd v. City & Suburban Ry. Co. (Ga.), 35 S. E. 170 4og 
 
 Lockhart v. Craig St. Ry. Co. (Pa.), 3 Am. Electl. Cas. 314. . 18, 109, 135 
 
 201 
 
TABLE OF CASES. Ivil 
 
 PAGE 
 
 Lockwood V. Bell City St. Ry. Co., 92 Wis. 97 361 
 
 Lockwood V. Wabash R. Co. (Mo.), 122 Mo. 86 140 
 
 Lonergan v. La Fayette St. Ry. Co. (Ind.), 3 Am. Electl. Cas. 273 51 
 
 Lookout Inc. & L. L. Ry. Co. v. King (Tenn. Ch. App.), 59 S. W. 
 
 80s 593 
 
 Lorickio v. Brooklyn H. R. Co., 44 App. Div. (N. Y.) 628 358 
 
 Losee v. Watervliet Tp. & R. Co., 63 Hun (N. Y.), 404 452, 480 
 
 Lothrop V. Steadman, 13 Blatchf. (U. S.) 143 46 
 
 Lott V. New Orleans City, etc., R. Co., y; La. Ann. 337 499 
 
 Loudoun V. Eighth Ave. R. Co., 162 N. Y. 380. . . 312, 336, 409, 509, 519 
 
 Louisiana v. Heidenhain, 42 La. Ann. 483 22g( 
 
 Louisiana v. Wood, 102 U. S. 294 120 
 
 Louisville Bagging Mfg. Co. v. Central Pass. R. Co., 95 Ky. 50. . 136 
 
 153 
 
 Louisville City R. Co. v. Central Pass. R. Co., 87 Ky. 223 39, 186 
 
 Louisville, etc., R. Co. v. Boney, 117 Ind. 501 170, 173 
 
 Louisville, etc., R. Co. v. Buck, 116 Ind. 566 550- 
 
 Louisville, etc., R. Co. v. Fleming, 14 Lea (Tenn.), 128 495, 530 
 
 Louisville, etc., R. Co. v. Strommel, 126 Ind. 35 388- 
 
 Louisville, etc., R. Co. v. Wolfe, 128 Ind. 347 495 
 
 Louisville Gas Co. v. Citizens' Gas Light Co., 115 U. S. 683 33 
 
 Louisville, F. & St. L. Co. v. Bowlds (Ky.), 64 S. W. 957 530, 561 
 
 Louisville, N. A. & C. P. Co. v. Faylor, 126 Ind. 126 445, 479 
 
 Louisville & N. R. Co. v. Barboursville, 20 Ky. L. Rep. 1105 580' 
 
 Louisville & N. R. Co. v. Bell, 100 Ky. 203 44S, 511 
 
 Louisville & N. R. Co. v. Bowling Green Ry. Co. (Ky.), 63 S. W. 4. 22 
 
 188, 191 
 
 Louisville & N. R. Co. v. Crothers (Ky.), 65 S. W. 833 S5i 
 
 Louisville & N. R. Co. v. Finn, 16 Ky. L. Rep. 57 459 
 
 Louisville & N. R. Co. v. Johnson, 108 Ala. 62 505, 532 
 
 Louisville & N. R. Co. v. Logan, 88 Ky. 232 503 
 
 Louisville & N. R. Co. v. McEwen, 17 Ky. L. Rep. 406 498 
 
 Louisville & N. R. Co. v. Mobile, J. & C. K. R. Co., 26 So. 895. ... . 59 
 
 Louisville R. Co. v. Mobile, J. & C. K. R. Co., 25 So. 895 27 
 
 Louisville R. Co. v. Blaydes (Ky.), 52 S. W. 960 299, 381 
 
 Louisville R. Co. v. Com., 20 Ky. L. Rep. 1509 592 
 
 Louisville R. Co. v. Parke, 96 Ky. 580 415, 449 
 
 Louisville R. Co. v. Phillips (Ky.), 58 S. W. 995 371 
 
 Louisville R. Co. v. Rammacker, 21 Ky. L. Rep. 250 481 
 
 Louisville Trust Co. v. Cincinnati, yi Fed. 716 105, 124 
 
 Louisville Trust Co. v. Cincinnati, 76 Fed. 296 31, 59 
 
 Lovett v. Salem & S. D. R. Co., 9 Allen (Mass.) 537 487, 502 
 
 Lowell v. Middlesex Co., 152 Mass. 375, 592 
 
 Lowery v. Brooklyn City & N. R. Co., 76 N. Y. 28 265 
 
Iviii TABLE OF CASES. 
 
 Lowy V. N. St. Ry. Co., 30 Misc. Rep. (N. Y.) 775 35& 
 
 Loyalsock Twp. & M. T. R. Co. (C. P.), 7 Pa. Dist. 291 105. 
 
 Lucas V. Met. St. R. Co., 56 App. Div. (N. Y.) 405 468, 518 
 
 Lucas V. Michigan C. R. Co., 98 Mich, i 504 
 
 Lucas V. N. Y. C. R. Co., 21 Barb. (N. Y.) 24s 39i 
 
 Lucy V. Chicago G. W. R. Co., 64 Minn. 7 499 
 
 Luedecke v. Met. St. R. Co., 32 Misc. Rep. (N. Y.) 635 346, 358, 406. 
 
 Lundy v. Second Ave. R. Co., i Misc. Rep. (N. Y.) 100 453. 
 
 Lurie V. Met. St. R. Co., 18 Misc. Rep. (N. Y.) 81 381 
 
 Lynch v. Met. El. R. Co., 90 N. Y. 77 507 
 
 Lyons v. Bay Cities Consol. R. Co., 115 Mich. 114 301 
 
 Lyons v. Broadway & Seventh Ave. R. Co., 32 St. Rep. (N. Y.) 
 
 232 493, 504 
 
 M. 
 
 Machen v. Pittsb. & W. E. Pass. Ry. Co., 13 Pa. Super. Ct. 642 482 
 
 Mack v. D. D., etc., R. Co., 2 Week. Dig. (N. Y) 251.' 470 
 
 Mackie v. Brooklyn City R. Co., S Am. Electl. Cas. 528 339, 358" 
 
 Macomber v. Nichols, 34 Mich. 212 51 
 
 Macon v. Harris, 75 Ga. 761 24 
 
 Macon v. Paducah St. Ry. Co. (Ky.), 62 S. W. 496 269, 270, 406 
 
 Macon Consol. St. R. Co. y. Barnes (Ga.), 38 S. E. 756 .... 415, 456, 557 
 
 564 
 
 Macon Consol. St R. Co. v. Macon, 112 Ga. 782 241 
 
 Macon & I. S. El, St. R. Co. v. Holmes, 103 Ga. 655 294. 
 
 Madigan v. Third Ave. R. Co., 68 App. Div. (N. Y.) 123 374 
 
 Magee v. Overshiner, 150 Ind. 127 137 
 
 Maher v. Central Park R. Co., 67 N. Y. 55 450, 454, 464. 
 
 Mahnke v. New Orleans City & L. R. Co., 104 La. 411 .... 259, 273 426. 
 
 Mahon v. N. Y. C. R. Co., 24 N. Y. 658 ' . . . ' 145 
 
 Mahoney v. Met. St. R. Co., 104 Mass. 73 276' 
 
 Mahoney v. N. Y. C. & H. R. R. Co., 39 St. Rep. (N. Y.) 911 .... 304 
 
 Mahoney v. San Francisco, etc., Ry. Co., no Cal. 471 283 
 
 Maine v. Grand Trunk R. Co., 142 U. S. 217 egg 
 
 Maisels v. D. D., etc., R. Co., 16 App. Div. (N. Y.) 391 308, 40a 
 
 Mali V. Lord, 39 N. Y. 381 ' ^q- 
 
 Mallard v. Ninth Ave. R. Co., 15 Daly (N. Y.), 376 ' ' ' . 529 
 
 Maloney v. Railway Co., 173 Mass. 587 259 277 
 
 Maloney v. Walic, 173 Mass. 587 ' 
 
 Malpass v. Hestonville, M. & F. Pass. R. Co., 129 Pa. St. 599 476 
 
 Manahan v. Steinway & H. P. Ry. Co., 35 St. Rep. (N. Y.) 813 378 
 
 Manayunk, etc., Co. v. Union Tract. Co., 7 Pa. Super. Ct. 104 -518 
 
 Manhattan v. Merges, 38 App. Div. (N. Y.) 120 
 
 Mann v. Phila. Tract. Co., 175 Pa. St. 122 ,„, 
 
 474 
 
TABLE OF CASES. lix 
 
 'page 
 
 Manning v. West End St. R. Co., i66 Mass. 230 298 
 
 Manor v. Bay Cities Consol. R. Co., 118 Mich. 1 299, 347 
 
 Mapes V. Union R. Co., 56 App. Div. (N. Y.) 508 360, 384, 521 
 
 Marietta & C. R. Co. v. Pixley, 24 Ohio St. 654 272 
 
 Marion City Ry. Co. v. Dubois, 23 Ind. App. 342 327 
 
 Marion St. Ry. Co. v. Shaffer, 9 Ind. App. 486 473, 518 
 
 Marcellus El. R. Co. v. Crisler, 33 Misc. Rep. (N. Y.) i 163, 164, 167 
 
 Marchal v. Indianapolis St. Ry. Co. (Ind. App.), 62 N. E. 286 512 
 
 Market St. R. Co. v. Cent. R. Co., 51 Cal. 583 187 
 
 Markey v. Consol. Tract. Co., 48 Atl. 1117 406 
 
 Markie v. Consol. Tract Co. (N. J.), 46 Atl. S73 • 376 
 
 Markowitz v. D. D., E. B. & B. R. Co., 12 Misc. Rep. (N. Y.) 412.. 230 
 
 231, 276 
 
 Marks v. Rochester R. Co., 41 App. Div. (N. Y.) 66 511 
 
 Marks v. Rochester R. Co., ^^ Hun (N. Y.), 7y 538 
 
 Martin v. Chicago, S. F. & C. R. Co., 47 Mo. App. 452 140 
 
 Martin v. Second Ave. R. Co., 3 App. Div. (N. Y.) 448 460, 520 
 
 Martin v. Third Ave. R. Co., 27 App. Div. (N. Y.) 52 294 
 
 Martin v. Tyler, 4 N. Dak. 299 , 163 
 
 Martineau v. Rochester R. Co., 81 Hun (N. Y.), 263 226, 308, 379 
 
 Mascheck v. St. Louis R. Co., 71 Mo. 276 529 
 
 Mason v. Brooklyn City, etc., R. Co., 3S Barb. (N. Y.) ^-jz 38 
 
 Mason v. Met. St. Ry. Co., 30 Misc. Rep. (N. Y.) 108 34a 
 
 Mason v. Spencer (Kan.), 11 Pac. 402 31 
 
 Massoth v. D. & H. Canal Co., 64 N. Y. 524 520 
 
 Masterson v. Railway Co., 102 Wis. 571 492 
 
 Mathers v. Cincinnati, 3 W. L. B. 551 87 
 
 Mathes v. Lowell, L. & H. St. R. Co., 177 Mass. 416 355 
 
 Mathison v. S. I. M. R. Co., ^2 N. Y. Supp. 974 533 
 
 Matlage v. N. Y. Elev. R. Co., 58 Hun (N. Y.), 603 149 
 
 Matter of A., J. & G. R. Co., 86 Hun (N. Y.), 578 67, 69 
 
 Matter of Auburn & Western R. Co., 37 App. Div. (N. Y.) 162 69 
 
 Matter of Broadway Surface R. Co., 36 Hun (N. Y.), 644 99 
 
 Matter of Broadway Und. R. Co., 23 Hun (N. Y.), 693 99 
 
 Matter of Brooklyn El. R. Co., 125 N. Y. 434 44, 127 
 
 Matter of Brooklyn El. R. Co., 72 N. Y. 245 161 
 
 Matter of Buffalo Tract. Co., 25 App. Div. (N. Y.) 447 75, 103 
 
 Matter of Burns, 155 N. Y. 23 24 
 
 Matter of B. W. & N. R. Co., y2 N. Y. 245 45, 48 
 
 Matter of B. W. & N. R. Co., 81 N. Y. 69 45 
 
 Matter of C. I., F. H. & B. R. Co. v. Kennedy, 15 App. Div. 
 
 (N. Y.) 588 128 
 
 Matter of Depew & S. W. R. Co., 92 Hun (N. Y.), 407 69 
 
Ix TABLE OF CASES. 
 
 PAG£ 
 
 Matter of Geneva v. Geneva Tel. Co., 30 Misc. Rep. (N. Y.) 236.. . 252 
 
 Matter of Kerr, 42 Barb. (N. Y.) 119 8 
 
 Matter of Kingsbridge R. Co., 66 App. Div. (N. Y.) 497 203 
 
 Matter of Kings Co. EI. R. Co., 105 N. Y. 97 127 
 
 Matter of Kings Co. El. R. Co. 41 Hun (N. Y.) 426 47 
 
 Matter of Kings, Q. & S. R. Co., 6 App. Div. (N. Y.) 241 70 
 
 Matter of Lees Bank, 29 N. Y. 9 40 
 
 Matter of Loader, 14 Misc. Rep. (N. Y.) 208 274 
 
 Matter of Long Lake R. Co., 11 App. Div. (N. Y.) 233 70 
 
 Matter of Met. Transit Co., iii N. Y. 588 239 
 
 Matter of Nassau El. R. Co., 167 N. Y. 37 102 
 
 Matter of New Hamburgh R. Co., 76 Hun (N. Y.), 76 70 
 
 Matter of N. Y. Cable R. Co., 36 Hun (N. Y.), 355 99 
 
 Matter of N. Y. Dist. R. Co., 107 N. Y. 42 3 
 
 Matter of N. Y. El. R. Co., 70 N. Y. 327 14, 44 
 
 Matter of N. Y., etc., R. Co., 99 N. Y. 12 45 
 
 Matter of N. Y. & L. L B. Co., 148 N. Y. 540 43 
 
 Matter of Niagara Falls & V/hirlpool R. Co., 108 N. Y. 37s 23 
 
 Matter of Peoples' R. Co., 112 N. Y. 578 99 
 
 Matter of Poughkeepsie Bridge Co., 108 N. Y. 483 156 
 
 Matter of Rec. Bank, 22 N. Y. 9 41 
 
 Matter of Ref. Presby. Church, 7 Hovir. Pr. (N. Y.) 476 44 
 
 Matter of Rochester El. R. Co., 123 N. Y. 351 77 
 
 Matter of S. B. R. Co., 119 N. Y. 141 157 
 
 Matter .of -South Beach Ry. Co., 53 Hun (N. Y.), 131 242 
 
 Matter .of S. R. C. R. Co., 128 N. Y. 408 23 
 
 Matter of Staten I&l. R. T. Co., 103 N. Y. 251 44 
 
 Matter of Syracuse & South Bay R. Co., 33 Misc. Rep. (N. Y.) 510. 2 
 
 Matter of T. A. R. Co., 121 N. Y. 536 36 
 
 Matter of Third Ave. R. Co., 56 Hun (N. Y.), 537 74 
 
 Matter of Thirty-fourth St. R. Co., 102 N. Y. 343 19 
 
 Matter of Townsend, 39 N. Y. 171 44 
 
 Matter of U. Elev. R. Co., 112 N. Y. 61 156 
 
 Matter of U. F. R. Co. of Brooklyn, 113 N. Y. 275 38 
 
 Matter of Wasn. St. Asy. 8z P. R. Co., 115 N. Y. 442 4 
 
 Matz V. St. Paul City R. Co., 52 Minn. 159 525 
 
 Maverick v. Eighth Ave. R. Co., 36 N. Y. 378 417, 451, 486 
 
 Maxwell V. Wilmington City R. Co., i Marv. (Del.) 199. . 318, 344, 384 
 
 Mayor v. Broadway, etc., R. Co., 97 N. Y. 275 15 
 
 Mayor v. .Broadway & Seventh Ave. R. Co., 17 Hun (N. Y.), 242. 106 
 Mayor v. D. D., E. B. & B. R. Co., 133 N. Y. 104. .. . 214, 215, 227, 229 
 
 Mayor v. Eighth Ave. R. Co., 7 App. Div. (N. Y.) 85 95^ 255 
 
 Mayor v. Eighth Ave. R. Co., 118 N. Y. 389 . _ ' 233 
 
 Mayor v. Fitch, 9 App. Div. (N. Y.) 452 gp 
 
TABLE OF CASES. Ixi 
 
 PAGE 
 
 Mayor v. Houston City R. Co. (Tex.), 50 Am. & Eng. R. Cas. 280. . 26 
 
 Mayor v. M. R. Co., 143 N. Y. i 15 
 
 Mayor v. N. Y. & H. R. Co., 46 St. Rep. (N. Y.) 349 95 
 
 Mayor v. N. Y. & H. R. Co., 19 N. Y. Supp. 67 255 
 
 Mayor v. N. Y. & H. R. Co., 10 Misc. Rep. (N. Y.) 417 226 
 
 Mayor v. Norwich, etc., R. Co., 109 Mass. 103 40, 42, 55 
 
 Mayor v. Ohio, etc., R. Co., 26 Pa. St. 355 200 
 
 Mayor v. Oregon Short Line Co. (Utah), 59 Pac. 522 414 
 
 Mayor v. Second Ave. R. Co., 102 N. Y. 572 261, 264 
 
 Mayor v. Second Ave. R. Co., 32 N. Y. 261 106 
 
 Mayor v. State Board of Taxation (N. J.), 51 Atl. 67 420 
 
 Mayor v. Third Ave. R. Co., 33 N. Y. 42 106, 596 
 
 Mayor v. Third Ave. R. Co., 117 N. Y. 404 106 
 
 Mayor v. Twenty-third St. R. Co., 113 N. Y. 311 42, S9S 
 
 McAdam v. Central Ry. & El. Co., 67 Conn. 445 534 
 
 McAndrew v. St. Louis & S. Ry. Co., 88 Mo. App. 97 426, 512 
 
 McAndrews v. St. Louis & S. R. Co., 83 Mo. App. 233 306, 383 
 
 McAuley v. Columbus, etc., R. Co., 83 III. 348 32 
 
 McCaffrey v. Twenty-third St. R. Co., 47 Hun (N. Y.), 404 281 
 
 McCambley v. Staten Isl. M. R. Co., 32 App. Div. (N. Y.) 346 341 
 
 McCann v. Consol. Tract. Co., 59 N. J. L. (30 Vroom) 481 331 
 
 McCann v. Newark & So. R. Co., 34 Atl. 1052 530 
 
 McCann v. N. Y. & Q. C. R. Co., 56 App. Div. (N. Y.) 419. . 344, 356 
 
 395. 396 
 
 McCann v. Sixth Ave. R. Co., 117 N. Y. 505 487 
 
 McCarthy V. Detroit Citizens' R. Co. (Mich.), 79 N. W. 631 357 
 
 McCartney v. Chicago, etc., R. Co., I12 111. 611 30, 32, 131 
 
 McCawley v. Phila. Tract. Co., 13 Pa. Super. Ct. 354 355, 367 
 
 McClean v. Westchester El. Ry. Co., 25 Misc. Rep. (N. Y.) 383. . 96 
 
 102, 113 
 McClelland v. Chippewa Val. Ry. Co. (Wis.), 85 N. W. 1018 . . 301, 355 
 
 401 
 
 McClelland v. Louisville, etc., Ry. Co,, 94 Ind. 276 533 
 
 McCoIgan V. Baltimore Belt R. Co., 86 Md. 325 152 
 
 McConnell v. Atlantic Ave. R. Co., 11 Misc. Rep. (N. Y.) 177 304 
 
 McCormack v. Nassau El. R. Co., 16 App. Div. (N. Y.) 24 3:9 
 
 McCormick V. Brooklyn City R. Co., 10 Misc. Rep. (N. Y.) 8 361 
 
 McCormick v. Pittsb. & B. Tract. Co., 13 Pa. Super. Ct. 638 554 
 
 McCracken v. Consol. Tract. Co. (Pa.), 50 Atl. 830 512 
 
 McCready v. Staten I. R. Co., 51 App. Div. (N. Y.) 338 548 
 
 McCruden v. Rochester Ry. Co., 5 Misc. Rep. (N. Y.) 59 134, 147 
 
 McCullen v. N. Y. & N. S. R. Co., 68 App. Div. (N. Y.) 269 .... . 504 
 
 McCulloch v. Maryland, 17 U. S. (4 Wheat.) 428 569 
 
 McCurdy v. United Tract. Co., 15 Pa. Super. Ct. 29 . . 4S4, 455, 463 
 
Ixii TABLE OF CASES. 
 
 PAGE 
 
 McCurrie v. So. Pac. R. Co., 122 Cal. 5S8 4I4, 5i9 
 
 McDermott v. Nassau El. R. Co., 85 Hun (N. Y.), 422 80 
 
 McDermott v. Warren, etc., Ry. Co. (Mass.), 7 Am. Electl. Cas. 367. 138 
 
 139 
 
 McDevitt V. Des Moines St. R. Co., 99 Iowa, 141 385 
 
 McDonald v. Brooklyn H. R. Co., 51 App. Div. (N. Y.) 186 398 
 
 McDonald v. Kansas City & I. R. Co., 127 Mo. 38 523 
 
 McDonald v. Met. St. Ry. Co., 167 N. Y. (:6 405 
 
 McDonald v. Met. St. Ry. Co., 36 Misc. Rep. (N. Y.) 703 412 
 
 McDonald v. Mont. St. R. Co., no Ala. 161 523 
 
 McDonald v. Third Ave. R. Co., 16 Misc. Rep. (N. Y.) 52 358 
 
 McDonald v. Toledo Consol. St. R. Co., 43 U. S. App. 79 231, 276 
 
 McDonough v. Met. R. Co., 137 Mass. 210 418, 446, 458 
 
 McDougal V. Central R. Co., 63 Cal. 431 546 
 
 McFarlan v. Orange, etc.. Car Co., 37 N. J. Eq. 17 36, 38 
 
 McFarland v. Third Ave. R. Co., 29 Misc. Rep. (N. Y.) 121 296, 300 
 
 McGary v. W. Chicago St. R. Co., 85 111. App. 610 508 
 
 McGee v. Consol. St. R. Co., 102 Mich. 107 281, 368 
 
 McGee v. West End St. Ry. Co., 151 Mass. 240 321 
 
 McGilvray v. West End St. R. Co. (Mass.), 41 N. E. 116 496 
 
 McGovern v. N. Y. C, etc., Co., 67 N. Y. 421 376 
 
 McGraff V. City & S. R. Co., 93 Ga. 312 388 
 
 McGraflf v. North Jersey St. Ry. Co. (N. J.), 49 Atl. 520 369 
 
 McGrane v. Flushing, etc., R. Co., 13 App. Div. (N. Y.) 177. . 343, 361 
 
 406 
 McGrath v. Brooklyn, Q. C. & S. R. Co., 87 Hun (N. V.), 310. . 471, 473 
 
 Mclnerney v. Denver, 17 Colo. 302 222 
 
 McKay v. So. Bell Tel. & Teleg. Co., in Ala. 337 291 
 
 McKeesport v. Citizens' Pass. R. Co., 2 Pa. Super. Ct. 249 109 
 
 McKeesport v. McKeesport Pass. R. Co., 158 Pa. St. 447 264 
 
 McKelvey v. Twenty-third St. R. Co., 5 Misc. Rep. (N. Y.) 424 340 
 
 McKeon v. Steinway R. Co., 20 App. Div. (N. Y.) 601 343 
 
 McKeown v. Cincinnati St. R. Co., 2 Ohio Leg. N. 388 .... 271, 350, 384 
 
 McKie v. Grand Rapids St. Ry. Co., 41 Mich. 274 121 
 
 McKnight v. Brooklyn, etc., R. Co., 23 Misc. Rep. (N. Y.) 527 538 
 
 McLaren v. Pennington, i Paige (N. Y.), 102 30 
 
 McLaughlin v. New Orleans & C. R. Co., 48 La. Ann. 23. . 302, 314, 369 
 
 378 
 McLean v. Burbank, n Mina 277 _ _ ,_, 
 
 McLeod V. Chicago, etc., Ry. Co., 104 Iowa, 139 272 
 
 McLeod V. Graven (C. C. App., 6th C), 19 C. C. A. 616 362 384 
 
 McMahon v. N. Central Ry. Co., 39 Md. 438 _' egg 
 
 McMahon v. Second Ave. R. Co., 75 N. Y. 231 / 261 
 
 McMahon v. Third Ave. R. Co., 47 N. Y. Super. Ct. (15 J. & s.) 282 442 
 
 < 
 
TABLE OF CASES. Ixiii 
 
 FACE 
 
 McManigal v. So. Side Pass. Ry. Co., i8i Pa. St. 358 338 
 
 McMillan v. Federal St., etc., R. Co., 172 Pa. St. 523 503 
 
 McNamara v. Brooklyn City R. Co., 11 Misc. Rep. (N. Y.) 667 533 
 
 McNulta V. Norgren, go 111. App. 491 358, 370 
 
 McNulty V. Brooklyn H. R. Co., 31 Misc. Rep. (N. Y.) 674. . 224, 225 
 
 McNulty V. Brooklyn H. R. Co., 36 Misc. Rep. (N. Y.) 402 224, 440 
 
 McQuade V. Man. St. R. Co., 17 Misc. Rep. (N. Y.) 154 356 
 
 McQuade v. Met. St. R. Co., S3 N. Y. Super. Ct. (21 J. & S.) 91 . . . 461 
 
 Mead v. N. Y., etc., R. Co., 45 Conn. 199 32 
 
 Mechanics' Bank v. Debolt, i Ohio St. 591 577 
 
 Mechanicsburgh v. Meredith, 54 111. 84 260 
 
 Medcalf v. St. Paul City R. Co. (Minn.), 84 N. W. 633 381 
 
 Medler v. Atlantic Ave. R. Co., 36 St. Rep. (N. Y.) 89 453, 470 
 
 Meier v. Pa. R. Co., 64 Pa. St. 225 414 
 
 Mein v. La Crosse City Ry. Co. (C. C. App., 7th C), 92 Fed. 85 380 
 
 Meisch v. Rochester El. St. R. Co. (N. Y.), 4 Am. Electl. Cas. 520 . . 342 
 Meixell v. Northampton Cent. St. Ry. Co., 7 North. Co. Rep. (Pa. 
 
 Orph. Ct.) 274 113 
 
 Melhado v. Poughkeepsie Transp. Co., 27 Hun (N. Y.), 99 390 
 
 Memphis City R. Co. v. Memphis, 4 Coldw. (Tenn.) 406 28 
 
 Memphis, etc., R. Co. v. Berry, 112 U. S. 609 S3, 117 
 
 Memphis P. P. & R. Co. v. State, 87 Tenn. 746 261, 266 
 
 Mendoza v. Met. St. R. Co., 51 App. Div. (N. Y.) 430 224, 266 
 
 M. E. R. Co. V. Commissioners, yj N. J. 228 41 
 
 Mercantile Trust Co. v. Tex. & Pac. Ry., Si Fed. 533 221 
 
 Mercantile Trust & Deposit Co. of Baltimore v. Collins Park & B. 
 
 R. Co., 99 Fed. 812 18, 177 
 
 Mercantile Trust & Deposit Co. of Baltimore v. Collins Park & B. 
 
 R. Co., loi Fed. 347 i77 
 
 Merchants' Ins. Co. v. Newark, S4 N. J. L. 138 586 
 
 Meriwether v. Kansas City C. R. Co., 45 Mo. App. 528 461 
 
 Merrick v. Intramontaine R. Co., 118 N. C. 1081 136 
 
 Merrinjan v. Utica Belt Line St. R. Co., 18 Misc. Rep. (N. Y.) 269. . 79 
 
 113 
 
 Merritt v. Foote (Mich.), 87 N. W. 262 368, 370 
 
 Merritt v. N. Y., etc., R. Co., 162 Mass. 326 523 
 
 Merritt v. Village of Port Chester, 71 N. Y. 309 78 
 
 Mertz V. Det. El. R. Co., 7 Det. Leg. N. 393 320, 406 
 
 Merwin v. Manhattan R. Co., 113 N. Y. 6S9 S49 
 
 Metlestadt v. Ninth Ave. R. Co., 4 Robt. (N. Y.) 377 487 
 
 Met. City R. Co. v. Chicago, ^ 111. 620 245 
 
 Met. R. Co. V. Falvey (D. C. App.), 2Z Wash. L. Rep. 53 428 
 
 Met. R. Co. V. Fowler (C. A.), i Q. B. 165 581 
 
 Met. R. Co. V. Hammett, 13 App. D. C. Z70 314 
 
Ixiv TABLE OF CASES. 
 
 PAGE 
 
 Met. R. Co. V. Jones (D. C. App.), 2 Wash. L. Rep. 646 480, 481 
 
 Met. R. Co. V. Quincy R. Co., 12 Allen (Mass.), 262 186 
 
 Met. R. Co. V. Snashall (D. C. App.), 22 Wash L. Rep. 377 47S. S^S 
 
 Met. St. R. Co. V. Chicago, 96 111. 620 14- 
 
 Met. St. R. Co. V. Chicago, etc!, Ry. Co., 87 111. 317 57. 165 
 
 Met. St. R. Co. V. Kennedy (C. C. App., 2d C), 51 U. S. App. 503. . 336 
 
 Met. St. R. Co. V. Powell, 88 Ga. 601 388 
 
 Meyer v. Brooklyn, etc., R. Co., 47 App. Div. (N. Y.) 286 346, 360 
 
 Meyer v. Brooklyn H. R. Co. (N. Y.), 6 Am. Electl. Cas. 540 356 
 
 Meyer v. Johnson, 53 Ala. 237 55 
 
 Meyer v. St. Louis, etc., Co., 10 U. S. App. 677 449, 499 
 
 Meyer v. Second Ave. R. Co., 21 N. Y. Super. Ct. (8 Bosw.) 305 447 
 
 503 
 
 Michigan City v. Boeckling, 122 Ind. 39 151 
 
 Michigan Cent. R. Co. v. Waterworth, 21 Ohio C. C. 495 565 
 
 Mickels v. Rochester City Bank, 11 Paige (N. Y.), 118 48 
 
 Middlebury Bank v. Edgerton, 30 Vt. 190 54 
 
 Middlesex R. Co. v. Boston, etc., R. Co., 115 Mass. 347 119 
 
 Middletown, etc., St. Ry. Co. v. Middletown, etc.. El. Ry. Co., 2 
 
 Dauph. Co. Rep. (Pa. C. P.) 319 193 
 
 Midland Elev. Co. v. Stewart, 50 Kan. 378 571 
 
 Mikesell v. Durkee, 34 Kan. 509 9, 24^ 
 
 Milhaw V. Sharp, 17 Barb. (N. Y.) 435 115,223. 
 
 Milhaw V. Sharp, 27 N. Y. 61 1 9, 12, 57 
 
 Miller v. Detroit, Y. & A. A. Ry. Co. (Mich. Sup. Ct.), 51 L. R. A. 
 
 955 , 141 
 
 Miller V. Green Bay, etc., R. Co. (Minn.), 26 L. R. A. 443 138, 183, 
 
 Miller v. Grieme, 53 App. Div. (N. Y.) 276 351 
 
 Miller V. Lebannon & H. A. St. Ry. Co., 126 Pa. St. 190 243, 276- 
 
 Miller v. St. Louis R. Co., 5 Mo. App. 471 541 
 
 Miller v. Union Tract. Co., 198 Pa. St. 659 295 
 
 Milliman v. N. Y. C, etc., Co., 66 N. Y. 642 533 
 
 Mills v. Brooklyn City R. Co., 10 Misc. Rep. (N. Y.) i 380- 
 
 Millvale v. Evergreen R. Co., 131 Pa. St. i 7 
 
 MiHville Tract. Co. v. Goodwin, S3 N. J. Eq. (8 Dick.) 448 274 
 
 Milwaukee v. Milwaukee, etc., R. Co., 7 Wis. 85 13, 50 
 
 Milwaukee El. R. & L. Co. v. Milwaukee (C. C. E. D., Wis ) 87 Fed 
 
 ^77 ■'.' .'436- 
 
 Milwaukee El. R. & L. Co. v. Milwaukee (Wis.), 69 N. W. 796 603 
 
 Milwaukee, etc., R. Co. v. Finney, 10 Wis. 388 4^5 
 
 Milwaukee & L. W. R. Co. v. Stolze, loi Wis. 91 igc- 
 
 Milwaukee & St. Paul R. Co. v. Arms, 91 U. S. 489 ' ' 404 
 
 Minneapolis Eastern R. Co. v. Minnesota, 134 U. S. 467 221 
 
 Minneapolis & St. L. R. Co. v. Minnesota R. Comrs., 44 Minn. 336. . 71 
 
TABLE OF CASES. lxv~ 
 
 PAGE 
 
 Minnesota v. Haskins, 58 Minn. 35 538- 
 
 Minnick v. Lancaster, etc., R. Co. (Pa. C. P.), 24 Pa. Co. Ct. 312. ... 131 
 
 Minot V. Phila., W. & B. R. Co., 85 U. S. (18 Wall.) 206 583 
 
 Missouri Furnace Co. v. Avend, 107 111. 44 544 
 
 Missouri P. R. Co. v. Evans, 71 Tex. 371 533 
 
 Mitchell V. Deeds, 49 111. 416 31 
 
 Mitchell V. El. Tract. Co., 12 Pa. Super. Ct. 472 484 
 
 Mitchell V. Tacoma R. & M. Co., 13 Wash. 560 377 
 
 , Mitchell V. Tacoma R & M. Co., 9 Wash. 120 293, 295, 378' 
 
 Mitchell V. Third Ave. R. Co., 62 App. Div. (N. Y.) 371.. 293, 372, 406 
 
 Mobile, etc., R. Co. v. State, 29 Ala. 585 46 
 
 Mobile & Mont. R. Co. v. Jay, 65 Ala. 113 545 
 
 Mobile & O. R. Co. v. Tennessee, 153 U. S. 486 573 
 
 Moebus V. Hermann, 108 N. Y. 349 298, 376 
 
 Moljmeaux v. S. W. Mo. R. Co., 81 Mo. App. 25 307, 329 
 
 Monongahela Nav. Co. v. United States, 148 U. S. 312 33 
 
 Monroe v. Third Ave. R. Co., 50 N. Y. Super. Ct. (t8 J. & S.) 114. . 482 
 Montclair Military Academy v. New Jersey St. Ry. Co. (N. J. Sup.), 
 
 47 Atl. 890 105 
 
 Montgomery v. Buffalo Ry. Co., 165 N. Y. 139 434 
 
 Montgomery v. Buffalo Ry. Co., 24 App. Div. (N. Y.) 454.... 228, 50^ 
 
 Montgomery V. Johnson (Ky.), 58 S. W. 476 299,340 
 
 Montgomery v. Lansing City El. R. Co., 103 Mich. 46 385 
 
 Montgomery v. Phila. R. Co., 136 Pa. St. 96 12 
 
 Mont^mery v. Santa Ana & W. R. Co., 104 Cal. 186 138 
 
 Montgomery El. R. Co. v. Mallett (Ala.), 9 So. 363 415 
 
 Montreal St. R. Co. v. Montreal, 23 Can. S. C. 259 596 
 
 Mooney v. H. R. Co., 28 N. Y. Super. Ct. 548 549' 
 
 Mooney v. Luzerne, i86 Pa. St. 161 310 
 
 Mooney v. N. Y. Elev. R. Co., 163 N. Y. 242 154 
 
 Moore v. Charlotte El. St. R. Co. (N. C), 39 S. E. 57 299 
 
 Moore v. Green, etc., R. Co., 3 Phila. (Pa.) 21a 20 
 
 Moore v. Railroad Co., 126 Mo. 265 318 
 
 Moore v. W. R. Pickering Lumbering Co., 105 La. Ann. 504 564 
 
 Moran v. Detroit, Y. & A. A. Ry. Co. (Mich.), 83 N. W. 606 3S» 
 
 Moran v. Lydecfcer, 27 Hun (N. Y.), 582 iS4 
 
 Morawetz on Corp., § 924, p. 87 55 
 
 Morey v. Gloucester St. R. Co., 171 Mass. 164 375, 378. 
 
 Morgan v. Bell Tel. Co. (Can. Rap. Jud., Quebec), 11 C. S. 113 .... 288 
 
 Morgan v. Jersey City & B. R. Co., 52 N. J. L. 60 479, 
 
 Morgan v. Louisiana, 93 U. S. (3 Otto) 217 55 
 
 Morris v. Atlantic Ave. R. Co., 116 N. Y. 552 434, 465 
 
 Morris v. Comptroller, 54 N. J. L. 273 163 
 
 Morris v. Eighth Ave. R. Co., 68 Hun (N. Y.), 39 4i£> 
 
 V 
 
Ixvi TABLE OF CASES. 
 
 PACE 
 
 Morris v. Met. St. R. Co., 63 App. Div. (N. Y.) 78 389, 406 
 
 Morris v. N. Y. C. & H. R. R. Co., 106 N. Y. 678 420 
 
 Morris v. Railway Co., 148 N. Y. 182 S09 
 
 Morris v. State, 62 Tex. 728 31 
 
 Morris v. Third Ave. R. Co., i Daly (C. P. N. Y.), 202 506 
 
 Morris & Essex R. Co. v. Newark Pass. Ry. Co. (N. J.), 5 Am. 
 
 Electl. Cas. 229 186 
 
 .Morrissey v. Bridgeport Tract. Co., 68 Conn. 215 356 
 
 Morrissey v. Westchester El. R. Co., 18 App. Div. (N. Y.) 67 352 
 
 Morrison v. Broadway R. Co., 130 N. Y. 166 450, 454, 460 
 
 Morrison v. Charlotte El. Ry., L. & P. Co., 123 N. C. 414 481 
 
 Morrow v. Del. Co. & P. El. Ry. Co. (Pa.), 48 Atl. 974 360 
 
 Morrow v. Westchester El. R. Co., 54 App. Div. (N. Y.) 592 401 
 
 Morrow v. Westchester El. R. Co., 30 Misc. Rep. (N. Y.) 694 517 
 
 Moss V. Crimmins, S7 App. Div. (N. Y.) 587 259, 277, 395 
 
 Mt. Adams & E. P. R. Co. v. Cavagna, 6 Ohio C. C. 606 302 
 
 Mt. Adams & E. P. R. Co. v. Reul, 4 Ohio C. C. 362 470 
 
 Mt. Auburn Cable R. Co. v. Neare, 54 Ohio St. 153. 92 
 
 Mowbray v. Brooklyn H. R. Co., 59 App. Div. (N. Y.) 239 358, 562 
 
 Mowrey v. Central City R. Co., 66 Barb. (N. Y.) 43 422, 528 
 
 Moylan v. Second Ave. R. Co., 125 N. Y. 583 458, 463, 555 
 
 Muckle v. Rochester R. Co., 79 Hun (N. Y.), 32 434, 441 
 
 Mueller v. Milwaukee St. R. Co., 86 Wis. 340 322 
 
 Muhlhause v. Morrow St. R. Co. (Pa.), 50 Atl. 940 468 
 
 Mulcahy v. El. Tract. Co., 185 Pa. St. 427 302, 375 
 
 Muldoon v. Seattle City R. Co., 7 Wash. 528 449, 473 
 
 Muldowney v. Pittsb. & B. Tract. Co., 8 Pa. Super. Ct. 33s .. . 433, 477 
 
 Mulhado v. Brooklyn City R. Co., 30 N. Y. 370 481 
 
 Mullady v. Brooklyn H. R. Co., 65 App. Div. (N. Y.) 549 410, 539 
 
 MuUan v. Wis. C. R. Co., 46 Minn. 474 ^pg 
 
 Mullen V. Phila. Tract. Co., 20 W. N. C. (Pa.) 203 267 
 
 Mullen V. Springfield St. R. Co., 164 Mass. 450 281, 375 
 
 Muller V. Brooklyn H. R. Co., 18 App. Div. (N. Y.) 177 303 
 
 Mulligan v. N. Y. & R. B. R. Co., 129 N. Y. 506 508 
 
 Mulligan v. Third Ave. R. Co., 61 App. Div. (N. Y.) 214 348 
 
 Mulvaney v. Brooklyn H. R. Co., I Misc. Rep. (N. Y.) 425 549 
 
 Mumma v. Potomac Co., 33 U. S. (8 Pet.) 281 39 
 
 Muncie St. R. Co. v. Maynard, 5 Ind. App. 372 t^i 
 
 Munn V. Illinois, 94 U. S. (4 Otto) 113 ,4 
 
 Murphy v. Central Pa^, etc., R. Co., 48 N. Y. Super. Ct. 96 487 
 
 Murphy v. Chicago, af 111. 279 g_ 
 
 Murphy v. C. I. & B. R. Co., 65 App. Div. (N. Y.) 546 . . . '535 549 
 
 Murphy v. C. I. & B. R. Co., 36 Hun (N. Y.), 199 ' ^^ 
 
 Murphy v. Derby St. Ry. Co., 73 Conn. 249 20 . .g 
 
TABLE OF CASES. Ixvii' 
 
 PAGE 
 
 Murphy v. Lindell Ry. Co., 153 Mo. 252 112, 228, 306. 
 
 Murphy v. Met. St. R. Co., 19 Misc. Rep. (N. Y.) 194 480. 
 
 Murphy v. Nassau El. R. Co., 19 App. Div. (N. Y.) 583 345 
 
 Murphy v. Ninth Ave. R. Co., 6 Misc. Rep. (N. Y.) 298 424 
 
 Murphy V. Union R. Co., 118 Mass. 228 502, 503 
 
 Murray v. Brooklyn City R. Co., 27 St. Rep. (N. Y.) 280. . 453, 470, 515 
 Murray v. Forty-second St., etc., R. Co., 9 App. Div. (N. Y.) 610. . 304. 
 Murray Hill Land Co. v. Milwaukee L., H. & T. Co. (Wis.), 86 
 
 N. W. 199 241 
 
 Musgrave v. Morris, S4 Md. 161 44 
 
 Musser v. Lancaster, etc., R. Co., 176 Pa. St. 621 280 
 
 Mutual N. Y. Tel. Co. v. Chicago, 16 Fed. 309 207 
 
 Myers v. Branford St. R. Co. (Can.), 27 Ont. App. 513 329 
 
 Myers v. Brooklyn H. R. Co., 10 App. Div. (N. Y.) 335 44a 
 
 Myers v. Long Isl. R. Co., 10 Sj. Rep. (N. Y.) 430 461 
 
 Mynning v. Detroit, etc., Ry. Co., 67 Mich. 677 544. 
 
 N. 
 
 Nagle v. Alleghany V. R. Co., 88 Pa. St. 35 529. 
 
 Napier v. Brooklyn H. R.' Co., 68 App. Div. (N. Y.) 200 404, 412 
 
 Nash V. Lowry, yj Minn. 261 9, 30, 31 
 
 Nash V. Yonkers R. Co., 63 App. Div. (N. Y.) 315 553 
 
 Nashville St. R. Co. v. Griffin, 104 Tenn. 81 477 
 
 Nashville St. R. Co. v. O'Brien (Tenn.), 55 S. W. 300 407, 410 
 
 National Docks R. Co. v. Central R. Co., 32 N. J. Eq. 755 161 
 
 National Tel. Co. v. Baker, 47 Alb. L. J. 411 270, 288; 
 
 Neary v. Phila., W. & B. R. Co., 9 Atl. 405 577 
 
 Nelson v. Crescent City R. Co., 49 La. Ann. 491 374, 529 
 
 Nelson v. Lehigh Val. R. Co., 25 App. Div. (N. Y.) 535 416. 
 
 Neslie v. Second & Third St. Ry. Co., 113 Pa. St. 300 429, 468 
 
 Neun v. Rochester Ry. Co., 165 N. Y. 146 378 
 
 New Albany & Salem R. Co. v. O'Daily, 13 Ind. 353 16O' 
 
 New Baltimore Pass. Ry. Co. v. N. Ave. Ry. Co., 73 Md. 233 183 
 
 Newark El. L. & P. Co. v. Gardner, 78 Fed. 74 290 
 
 Newark Pass. Co. v. Bloch, 55 N. J. L. 605 136, 324, 355, 372 
 
 Newcomb v. Met. St. R. Co., 34 Misc. Rep. (N. Y.) 203 .-. 409 
 
 New Jersey v. Wilson, 11 U. S. (7 Cranch) 164 33 
 
 New Jersey v. Yard, 95 U. S. 104 33 
 
 New Jersey Err. & App., 60 N. J. L. 224 207 
 
 New Jersey El. R. Co. v. Miller, 39 N. J. L. (30 Vroom) 423 315 
 
 New Jersey, etc., Co. v. Neptune City (N. J.), 32 Atl. 220 75 
 
 New Jersey Express Co. v. Nichols, 33 N. J. L. 434 546 
 
 New Jersey R., etc., Co. v. Pollard, 89 U. S. (22 Wall.) 341 272. 
 
 New Jersey So. R. Co. v. Long Branch Comrs., 39 N. J. L. 35 44. 
 
Ixviii TABLE OF CASES. 
 
 PAGE 
 
 New Jersey St. Ry. Co. v. S. Orange Tp. (N. J. Ch.>, 43 Atl. 53 . . . . 126 
 
 New Jersey Tract. Co. v. Danbech, 57 N. J. L. (28 Vroom) 463 48a 
 
 New Jersey Tract. Co. v. Gardner, 60 N.J. L. 571 484 
 
 New Mexican R. Co. v. Hendricks (N. M.), 30 Pac. 901 138 
 
 New Orleans v. New Orleans, etc., R. Co., 40 La. Ann. 587 233, 
 
 New Orleans v. Robira, 42 La. Ann. 1098 573 
 
 New Orleans & C. R. Co. v. Canal & C. R. Co., 47 La. Ann. 1476. 174 
 
 New Orleans & C. R. Co. v. Crescent City R. Co., 12 Fed. 308 114 
 
 New Orleans & C. R. Co. v. New Orleans, 34. La. Ann. 429 36 
 
 New Orleans C. & L. R. Co. v. New Orleans, 44 La. Ann. 748, 1053. 61 
 
 113, 129, 247, 586 
 
 New Orleans City & L. R. Co. v. New Orleans, 143 U. S. 192. . 568. 
 
 569, SPJ 
 New Orleans City & L. R. Co. v. New Orleans, 44 La. Ann. 1055. 592 
 
 New Orleans, etc., R. Co. v. Delamore, 114 U. S. 508 120 
 
 New Orleans, etc., R. Co. v. Watkins, 48 La. Ann. 1550 3, 88 
 
 New Orleans Gas Light Co. v. La., etc., Mfg. Co., 115 U. S. 650. . 33 
 
 217 
 
 New Orleans & N. E. R. Co. v. Jopes, 142 U. S. 18 497 
 
 New Orleans & T. P. R. Co. v. Com., 81 Ky. 492 575 
 
 New Orleans Waterworks Co. v. Rivers, 115 U. S. 674 33 
 
 Newport News & O. P. Ry. & El. Co. v. Bradford, 3 Va. Super. Ct. 
 
 IS 230, 276, 397 
 
 Newport News & O. P. Ry. & El. Co. v. City of Newport News 
 
 (Va.), 40 S. E. 64s 420 
 
 Newton v. Carbery, 5 Cranch C. C. (U. S.) 632 1 12 
 
 New York v. N. Y. & H. R. Co., 10 Misc. Rep. (N. Y.) 417 227, 309 
 
 New York v. Union R. Co., 31 Misc. Rep. (N. Y.) 451 309 
 
 New York Cable Co. v. Mayor, 104 N. Y. i 78, 160 
 
 New York Condensed Milk Co. v. Nassau El. Ry. Co., 29 Misc. Rep. 
 
 (N. Y.) 127 356 
 
 New York, etc., Co. v. Boston, etc., Co., 36 Conn. 196 46 
 
 New York, etc.. Bridge Co. v. Smith, 148 N. Y, 540 44, 47 
 
 New York, etc.. Canal Co. v. Fulton Bank, 7 Wend. (N. Y.) 412... 173 
 New York Guaranty & I. Co. v. Tacoma Ry. & M. Co., 93 Fed. 51 . . . 581 
 New York & _H. R. Co. v. Forty-second St., etc., R. Co., 50 Barb. 
 
 (N. Y.) 28s, 309 8, 56, 57, 187 
 
 New York, L. E. & W. R. Co. v. Pennsylvania, 153 U. S. 628 seg. 
 
 New York, L. & W. R. Co. v. Roll, 32 Misc. Rep. (N. Y.) 321. . . 576, 59^ 
 
 New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60 .' 433 
 
 New York & N. E. R. Co. v. Bristol, 151 U. S. 556 217 
 
 New York, N. H. & H. R. Co. v. Bridgeport T. Co. (Conn.), 5 Am. 
 
 Electl. Cas. 246 186 333 
 
 New York, N. H. & H. R. Co. v. Fair Haven & W. R. Co., 70 Conn'. 
 
 61° • 195 
 
TABLE OF CASES. Ixix 
 
 PAGE 
 
 New York, N. H. & H. R. Co. v. Long, 69 Conn. 424 161 
 
 New York & N. J. Tel. Co. v. Railroad Co., 51 La. Ann. 299 259 
 
 Nichol V. Ames (C C. N. D., 111.), 89 Fed. 144 572 
 
 Nichols V. Ann Arbor, etc., Co., 87 Mich. 361. ... 3, iii, 113, 13S, 141, 245 
 
 ■ Nichols V. Lynn & B. R. Co., 168 Mass. 528 415, 481, 523 
 
 Nichols V. Sixth Ave. R. Co., 38 N. Y. 131 482, 485 
 
 Nicholsburg v. Second Ave. R. Co., 11 Misc. Rep. (N. Y.) 432 358 
 
 Nieboer v. Detroit El. Ry (Mich.), 87 N. W. 626 469 
 
 Niemann v. Detroit Sub. St. R. Co., 103 Mich. 256 239 
 
 Nies V. Brooklyn Heights R. Co., 68 App. Div. (N. Y.) 259 426, 456 
 
 Nivette v. New Orleans & L. S. R. Co., 42 La. Ann. 1155 426 
 
 Noble v. St. J. & B. H. St. R. Co., 98 Mich. 249 415, 526 
 
 Nolan v. Brooklyn City R. Co., 87 N. Y. 63 470, 471 
 
 Nolan v. Met. St. R. Co., 65 App. Div. (N. Y.) 184 351 
 
 Nolder v. McKeesport, W. & D. Ry. Co., 50 Atl. 948 530 
 
 Norfolk, etc., R. Co. v. Anderson, 90 Va. 6 S39 
 
 Norfolk, etc., R. Co. v. Burge, 84 Va. 70 S4S 
 
 Norris v. Lichfield, 35 N. H. 271 418 
 
 Norris v. Wurster, 23 App. Div. (N. Y.) 124 67 
 
 Norristown v. M. St. Pass. R. Co., i Pa. Adv. Rep. 460 262 
 
 North V. Pate, 170 N. Y. 356 113 
 
 Northampton Co. v. Easton, etc., R. Co., 148 Pa. St. 282 581 
 
 North Baltimore, etc., Ry. Co. v. N. Ave. Ry. Co., 75 Md. 233 108 
 
 North Baltimore Pass. R. Co. v. Arnreich, 78 Md. 589 384 
 
 North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247 419 
 
 North Braddock v. Second Ave. Tract. Co., 28 Pittsb. L. J. (N. S.) 
 
 27 596 
 
 North Central Ry. Co. v. Harrisburgh, etc., Co. (Pa.), 6 Am. Electl. 
 
 Cas. 187 187 
 
 North Central Ry. Co. v. Hering (Md.), 48 Atl. 461 170 
 
 North Chicago City R. Co. v. Gastka, 128 111. 613 487, 504 
 
 North Chicago City R. Co. v. Lake View, 105 111. 207 200, 243 
 
 North Chicago City R. Co. v. Lewis (111.), 27 N. E. 451 394 
 
 North Chicago El. Ry. Co. v. Penser, 190 111. 67 320 
 
 North Chicago St. R. Co. v. Baur, 179 111. 126 474 
 
 North Chicago St. R. Co. v. Brown, 178 111. 187 480 
 
 North Chicago St. R. Co. v. Cheetham, 58 111. App. 318 64, 76 
 
 North Chicago St. R. Co. v. Cook, 14S M- SSi 463 
 
 North Chicago St. R. Co. v. Cotton, 29 N. E. 899 S4i 
 
 North Chicago St. R. Co. v. Dudgeon, 104 111. 477 259 
 
 North Chicago St. R. Co. v. Eldridge, 151 III. 542 S22 
 
 North Chicago St. R. Co. v. Hoflfart, 82 111. App. 539 303 
 
 North Chicago St. R. Co. v. Irwin, 82 111. App. 146 305 
 
 North Chicago St. R. Co. v. Kaspers, 85 111. App. 316 458 
 
Ixx TABLE OF CASES. 
 
 PACE 
 
 North Chicago St. R. Co. v. Olds, 165 111. 472 487 
 
 North Chicago St. R. Co. v. Smadraflf, 89 111. App. 411 318, 565 
 
 North Chicago St. R. Co. v. SmadraflF, 189 111. 15S 4o8 
 
 North Chicago St. R. Co. v. Williams, 140 111. 275 447, 472, 526 
 
 North Chicago St. R. Co. v. Wiswell, 168 111. 613 4S8, 484' 
 
 North Chicago St. R. Co. v. Wrixon, 51 111. App. 307 427 
 
 North Chicago St. R. Co. v. Zeiger, 182 111. 9 406 
 
 North Chicago St. R. Co. v. Zeiger, 78 111. App. 463 344 
 
 Northern, etc., Ry. Co. v. O'Brien, i Wash. 607 545 
 
 Northern Pac. R. Co. v. Barnes, 2 N. Dak. 310 594 
 
 Northern Pac. R. Co. v. Clark, 153 U. S. 252 594 
 
 North Jersey St. Ry. Co. v. Morhart, 64 N. J. L. 236 232 
 
 North Jersey St. Ry. Co. v. Schwartz (N. J.), 49 Atl. 683 370 
 
 North Side St. R. Co. v. Tippens (Tex. App.), 14 S. W. 1065.. 328, 329 
 
 North Side St. R. Co. v. Want (Tex.), 15 S. W. 40 338 
 
 Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659 34 
 
 Northwestern Teleph. Co. v. Minneapolis (Minn.), 7 Am. Electl. Cas. 
 
 179 249 
 
 Northwestern Tel. Exch. Co. v. Railway Co., 76 Minn. 334 162 
 
 Nowack V. Met. St. R. Co., 166 N. Y. 433 494, 508 
 
 Nowlton V. Western R. Co., 15 N. Y. 444 390 
 
 Noyes v. Anderson, 124 N. Y. 175 126 
 
 Nugent V. Fair Haven & W. St. Ry. Co., 73 Conn. 139 476 
 
 Nugent V. Met. St. R. Co., 17 App. Div. (N. Y.) 582 294, 303 
 
 Nugent V. Phila. Tract. Co., 181 Pa. St. 160 372 
 
 Nussbaum v. Louisville Ry. Co. (Ky.), 57 S. W. 249 487 
 
 Nye V. Marysville & Y. C. St. R. Co., 97 Cal. 461 477 
 
 O. 
 
 Oakland R. Co. v. Oakland, etc., R. Co., 45 Cal. 365 46, 48, 54 
 
 Ober V. Crescent City R. Co., 44 La. Ann. 1059 264, 484 
 
 O'Brien v. The Buffalo Tract. Co., 31 App. Div. (N. Y.) 632 103, 113 
 
 O'Callaghan v. Met. St. R. Co., 69 App. Div. (N. Y.) S74 S12 
 
 O'Connell v. St. Louis Cable, etc., R. Co., 106 Mo. 482 415 
 
 O'Connor v. Union Ry. Co., 67 App. Div. (N. Y.) 99 350, 354 
 
 Oddie V. Mendenhall (Minn.), 86 N. W. 881 ' 406 
 
 Oddy V. West End St. Ry. Co. (Mass.), 59 N. E. 1026 456 
 
 Odom V. St. Louis S. W. R. Co., 45 La. Ann. 1201 514. 
 
 O'Flaherty v. Nassau El. R. Co., 34 App. Div. (N. Y.) 74 273, 285 
 
 Ogden City Ry. Co. v. Ogden City (Utah), 4 Am. Electl. Cas. 321 17 
 
 136 
 
 Ogier V. Albany Ry., 88 Hun (N. Y.), 486 302, 375 
 
 Ohio V. Nelson, 52 Ohio St. 88 ' j^g 
 
 Ohio & M. R. Co. V. People, 100 111. 200 246 
 
TABLE OF CASES. IxXl 
 
 PAGE 
 
 Ohio & M. R. Co. V. Stansberry, 132 Ind. 533 430 
 
 Ohio Revised Stats., § 2502 82 
 
 O'Keefe v. St. Louis & S. R. Co., 81 Mo. App. 386 385 
 
 Old Colony R. Co. v. Rockland & A. St. R. Co., 161 Mass. 416 336 
 
 Oldfield V. N. Y. & H. R. Co., 14 N. Y. 310 390, 529, 545 
 
 O'Leary v. Brockton St. R. Co., 177 Mass. 187 299. 
 
 Oliver V. Denver Tramway Co., 13 Colo. App. 543 385 
 
 Oliver v. Railroad Co., 55 S. C. 541 511 
 
 Olsen v. Citizens' Ry. Co., 152 Mo. 426 519 
 
 Omaha H. Ry. Co. v. Cable Tramway Co., 30 Fed. 324 108, 109 
 
 Omaha & R. V. R. Co. v. Richards, 38 Nebr. 837 164 
 
 Omaha St. Ry. Co. v. Cameron, 43 Nebr. 297 315 
 
 Omaha St. Ry. Co. v. Duvall, 40 Nebr. 29 ; 307, 341 
 
 Omaha St. Ry. Co. v. Godola (Nebr. Sup. Ct.), 6 Am. Electl. Cas. 424. 518 
 
 Omaha St. Ry. Co. v. Loehneisen, 40 Nebr. 37 355 
 
 Omaha St. Ry. Co. v. Martin, 48 Nebr. 65 458 
 
 O'Malley v. Met. St. R. Co., 3 App. Div. (N. Y.) 259 452, 549, 555 
 
 O'Mara v. H. R. Co., 38 N. Y. 449 376 
 
 O'Mellia v. Kansas City, etc., Ry. Co., 115 Mo. 221 272 
 
 Omnibus R. Co. v. Baldwin, 57 Cal. 160 239 
 
 Omslaer v. Pittsb. & B. Tract. Co., 168 Pa. St. 519 339, 367 
 
 O'Neill V. D. D., etc., Co., 129 N. Y. 125 315, 394, 426 
 
 O'Neill v. D. D., etc., Co., 36 St. Rep. (N. Y.) 934 403, 554 
 
 O'Neill V. Hestonville, etc., Ry. Co. (Pa. C. P.), 9 Pa- Dist. 2 201 
 
 O'Neill V. Lynn & B. R. Co., 155 Mass. 371 434 
 
 O'Neill V. Third Ave. R. Co., 3 Misc. Rep. (N. Y.) 521 361 
 
 Onset St. R. Co. v. Plymouth County Comrs., 154 Mass. 395 140 
 
 Oppenheimer v. Manhattan R. Co., 45 St. Rep. (N. Y.) 134 502 
 
 Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S. i 15, 16, 117 
 
 118, 119, 120 
 
 O'Rourke v. Citizens' St. Ry. Co., 103 Tenn. 124 4^ 
 
 O'Rourke v. Lindell R. Co., 142 Mo. 342 336 
 
 O'Rourke v. New Orleans, etc., Co., 51 La. Ann. 755 301, 347 
 
 O'Rourke v. Yonkers R. Co., 32 App. Div. (N. Y.) 8 316 
 
 Orr V. Cedar Rapids & M. C. Ry. Co. (Iowa Supp.), 5 Am. Electl. 
 
 Cas. 445 354, 384 
 
 Osborne v. N. Y. & N. H. R. Co., 40 Conn. 441 575 
 
 Oscaloosa St. R. & L. Co. v. Oscaloosa, 99 Iowa, 496 257 
 
 Oster V. Schuylkill Tract. Co. (Pa.), 45 Atl. 1006 302 
 
 O'Toole v. Central Park, N. & E. R. R. Co., 58 Hun (N. Y), 609. . 459 
 
 S18 
 
 Ott V. Kansas City, etc., R. Co., 58 Mo. App. 502 316 
 
 Ottawa V. Carey, 108 U. S. no 602 
 
 O'Tulle V. Pittsb., etc., R. Co., 158 Pa. St. 99 388 
 
Ixxii TABLE OF CASES. 
 
 PAGE 
 
 Outen V. N. & S. St. R. Co., 94 Ga. 662 S3i 
 
 Ovington v. Lowell & S. St. R. Co., 163 Mass. 440 230, 276 
 
 Owens V. People*s Pass. R. Co., iSS Pa. St. 334 35° 
 
 Owens V. Richmond, etc., R. Co., 88 N. C. 502 544 
 
 Owensboro City R. Co. v. Hill (Ky.), 56 S. W. 21 293, 384 
 
 P. 
 
 Pacific R. Co. V. Remshaw, 18 Mo. 210 42 
 
 Pacific R. Co. V. Wade, 91 Cal. 449 178 
 
 Packard v. Toledo Tract. Co., 22 Ohio C. C. 578 461 
 
 Padgitt V. Moll, 159 Mo. 143 543 
 
 Paducah, etc., R. Co. v. Hoehl, 12 Bush (Ky.), 47 545 
 
 Paducah St. R. Co. v. Adkins (Ky. Super. Ct.), 14 Ky. L. Rep. 425.. 302 
 
 Paducah St. R. Co. v. McCraken Co., 20 Ky. L. Rep. 1294 592 
 
 Paducah St. Ry. Co. v. Walsh (Ky.), 58 S. W. 431 480 
 
 Palmer v. Cedar Rapids & M. C. Ry. Co. (Iowa), 95 N. W. 756 401 
 
 Palmer v. Charlotte, etc., Co., 3 S. C. 580 495 
 
 Palmer v. D. & H. C. Co., 120 N. Y. 170 420, 431! 
 
 Palmer v. Larchmont El. Co., 158 N. Y. 231 134 
 
 Palmer v. N. Y. C, 112 N. Y. 234 367, 
 
 Palmer v. Winona Ry. & L. Co. (Minn.), 80 N. W. 869 416' 
 
 Palmeri v. Manhattan Ry. Co., 133 N. Y. 261 494, 508, 539, 
 
 Paper v. Pueblo City Ry. Co. (Colo.), 4 Am. Electl. Cas. 542 390 
 
 Paring v. Oliver, I Minn. 302 40 
 
 Park V. O'Brien, 23 Conn. 339 544 
 
 Parker v. Elmira, etc., R. Co., 165 N. Y. 274 ■ • 9, S8 
 
 Parker v. Met. R. Co., 109 Mass. 506 40, 598 
 
 Parker v. Met. St. R. Co., 69 Mo. App. 54 414, 453 
 
 Parker v. Quinn (Utah) , 64 Pac. 961 573 
 
 Parkersburgh v. Brown, 106 U. S. 487 120 
 
 Parkhurst v. Capital City R. Co., 23 Oreg. 471 64 
 
 Parkinson v. Concord St. Ry. (N. H.), 51 Atl. 268 512, 521, 522 
 
 Parlin v. Mills, 11 111. App. 396 10, 59 
 
 Partridge v. Woodland S. Co. (N. J.), 49 Atl. 726 498 
 
 Passameneck v. Louisville R. Co., 98 Ky. 195 374, 378 
 
 Paterson v. Kentucky, 97 U. S. 501 35 
 
 Paterson Ry. Co. v. Grundy (N. J.), 4 Am. Electl. Cas... 17, 49, 109, 136 
 
 153. 201 
 
 Paterson, etc., H. R. Co. v. Paterson, 24 N. J. Eq. 158 13, SO, 103 
 
 Patterson v. Pittston, 8 Kulp (Penn.), 530 136 
 
 Patterson v. Townsend (Iowa), 5 Am. Electl. Cas. 442 365 
 
 Patterson v. Westchester El. R. Co., 26 App. Div. (N. Y.) 336. S4i SSS 
 
 Patterson v. Inc. Plane R. Co., 12 Ohio C. C. 274 522 
 
 Paulson V. Brooklyn City R. Co., 13 Misc. Rep. (N. Y.) 387 460 
 
TABLE OF CASES. Ixxiii 
 
 Pawcatuck Val. St. R. Co. v. Town Council of Westerly, 47 Atl. 691. 243 
 
 602 
 
 Payne v. Nashville, etc, Ry. Co., 106 Tenn. 167 555 
 
 Payne v. Spokane St. R. Co., 15 Wash. 522 414 
 
 Pearce v. Chicago, 176 111. 152 165, 173 
 
 Pearce v. Madison, etc., R. Co., 21 How. (U. S.) 441 173 
 
 Pearsall v. Gt. Northern R. Co., 161 U. S. 646 .... 32, 33, 34, 35, 36 
 
 Peavey v. Calais R. Co., 30 Me. 498 45 
 
 Pechesky v. Met. St. R. Co., 30 Misc. Rep. (N. Y.) 432 346 
 
 Peck V. Schenectady R. Co., 67 App. Div. (N. Y.) 359 102 
 
 Peck V. Schenectady Ry. Co., 27 N. Y. L. J. 165 148 
 
 Peekskill R. Co. v. Peekskill, 21 App. Div. (N. Y.) 94 112 
 
 Peik V. Chicago, etc., R. Co., 94 U. S. (4 Otto) 164 40 
 
 Pekin v. McMahon, 154 111. 141 377 
 
 Pender v. Brooklyn City R. Co., 84 Hun (N. Y.), 460 396 
 
 Pendril v. Second Ave. R. Co., 43 How Pr. (N. Y.) S99 S29 
 
 Penman v. McKeesport, etc., Ry. Co. (Pa.), 50 Atl. 973 512 
 
 Penhison v. Railroad Co., 93 Wis. 344 170 
 
 Pennsylvania College Cases, 80 U. S. (13 Wall.) igo 39 
 
 Pennsylvania R. Co. v. Angle, 14 Stew. Eq. (N. J.) 316 143 
 
 Pennsylvania R. Co. v. Bray, 125 Ind. 229 504 
 
 Pennsylvania R. Co. v. Glenwood & D. El. St. R. Co., 184 Pa. St. 227. 65 
 
 19a 
 Pennsylvania R. Co. v. Greensburgh, etc., Ry. Co., 176 Pa. St. 559. . 11 
 
 194 
 
 Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21 .^ 433 
 
 Pennsylvania R. Co. v. Miller, 132 U. S. 75 34 
 
 Pennsylvania R. Co. v. Mont. Pass. Ry. Co., 3 Pa. Dist. (C. P.) 50.. 38 
 
 Pennsylvania R. Co. v. Mont. Pass. Ry. Co., 167 Pa. St. 62 58, 61 
 
 132, 243 
 
 Pennsylvania R. Co. v. Ogier, 35 Pa. St. 60 272 
 
 Pennsylvania R. Co. v. St. Louis A. T. & H. R. Co., 118 U. S. 290. . 117 
 
 120 
 
 Pennsylvania R. Co. v. Stegemeier, 118 Ind. 305 512 
 
 Pennsylvania R. Co. v. Turtle Creek, etc., Ry. Co., 36 Atl. 348 61 
 
 Pennsylvania S. V. R. Co. v. Phila. Ry. Co., 160 Pa. St. 277 iii 
 
 Penny v. Rochester R. Co., 7 App. Div. (N. Y.) S9S 270, 427 
 
 People v. A. A. R. Co., 125 N. Y. 513 47, 48, 127, 246 
 
 People V. Badlem, 57 Cal. 584 S86 
 
 People V. Barker, 165 N. Y. 305 585 
 
 People V. Barker, 146 N. Y. 304 S86 
 
 People V. Barker, 141 N. Y. 196 586 
 
 People V. Barnard, 48 Hun (N. Y.), 57 I3 
 
 People V. Barnard, no N. Y. 548 19, 88, 94, 103, 105 
 
Ixxiv TABLE OF CASES. 
 
 PAGE 
 
 People V. Boston & Albany R. Co., 70 N. Y. 569 222 
 
 People V. Boston, H. T. & W. Ry. Co., 12 Abb. N. C. (N. Y.) 230. . 169 
 
 People V. Broadway R. Co., 126 N. Y. 29 19, 36, 96, 247 
 
 People V. Brooklyn, F. & C. I. R. Co., 89 N. Y. 75 7 
 
 People V. Campbell, 93 N. Y. 196 574 
 
 People V. Chicago, 51 111. 17 S69 
 
 People V. Chicago West Div. R. Co., 118 111. 113 19, 105, 122^ 
 
 People V. Chicago West Div. R. Co., 18 111. App. 125 36 
 
 People V. City of Utica, 45 App. Div. (N. Y.) 356 133 
 
 People V. Commissioners, 32 App. Div. (N. Y.) 179 37, 203 
 
 People V. Commissioners, 30 App. Div. (N. Y.) 69 203 
 
 People V. Commissioners of Taxes, 23 Hun (N. Y.), 687 581 
 
 People V. Cook, 148 U. S. 397 573 
 
 People V. Craycroft, iii Cal. 544 &2 
 
 People V. Davenport, 91 N. Y. 574 ^ S73 
 
 People V. Detroit, 28 Mich. 227 569- 
 
 People V. Detroit Citizens' St. R. Co., 116 Mich. 132 309 
 
 People V. Detroit, Y. & A. A. R. Co. (Mich.), 81 N. W. 336 212, 240 
 
 People V. Feitner, 126 N. Y. 129 585 
 
 People V. Feitner, 61 App. Div. (N. Y.) 129 585 
 
 People V. Fort St., etc., R. Co., 41 Mich. 413 261 
 
 People V. Ft. Wayne & E. R. Co., 92 Mich. 522 136, 152 
 
 People V. Gilon, 126 N. Y. 147 258, 600 
 
 People V. Grant, 50 St. Rep. (N. Y.) 465 74, 78 
 
 People V. Havnor, 149 N. Y. 195 229 
 
 People V. Hills, 46 Barb. (N. Y.) 340 41 
 
 People V. Kerr, 27 N. Y. 188 9, r2, 115, 151 
 
 People V. Los Angeles El. Ry. Co., 91 Cal. 338, 27 Pac. 673 30, 31 
 
 43, 48, 247 
 
 People V. Manhattan Co., g Wend. (N. Y.) 351 44 
 
 People V. Mitchell, 35 N. Y. 551 30 
 
 People V. Morgan, 57 App. Div. (N. Y.) 335 5ga 
 
 People v. Morgan, 162 N. Y. 654 592 
 
 People V. Morgan, 55 App. Div. (N. Y.) 265 592 
 
 People V. Newton, 112 N. Y. 396 ig^ 37^ 200 
 
 People V. N. Y. C. R. Co., 164 N. Y. 289 ...'....' 25 
 
 People V. N. Y. & S. I. & F. Co., 68 N. Y. 71 36 
 
 People V. North River Sugar Ref. Co., 121 N. Y. 582 173 
 
 People V. O'Brien, iii N. Y. i 40^ 53^ ^^ jgg 
 
 People V. Pratt, 129 N. Y. 68 229 
 
 People V. Railroad Comrs., 160 N. Y. 202 24 68 6g 70 
 
 People V. Railroad Comrs., 158 N. Y. 711 gg 
 
 People V. Railroad Comrs., 53 App. Div. (N. Y.) 61 gp^ 7q 
 
 People V. Railroad Comrs., 42 App. Div. (N. Y.) 366 ' 70 
 
TABLE OF CASES. 
 
 Ixxv 
 
 PAGE 
 
 People V. Railroad Comrs., 158 N. Y. 421 69 
 
 People V. Risch, 54 Cal. 74 179, 239 
 
 People V. Roberts, 168 N. Y. 14 590 
 
 People V. Rome, W. & O. R. Co., 103 N. Y. 95 247 
 
 People V. Runkle, 9 Johns. (N. Y.) 147 47 
 
 People V. Smith, 21 N. Y. 595 161 
 
 People V. Squire, 107 N. Y. 593 250 
 
 People V. Squire, 145 U. S. 175 252 
 
 People V. Sutter St. R. Co., 117 Cal. 604 79, 118, 129 
 
 People V. Third Ave. R. Co., 45 Barb. (N. Y.) 63 92, 131 
 
 People V. Utica, 45 App. Div. (N. Y.) 356 254 
 
 Peoples' Pass. R. Co. v. Greene, 56 Md. 84 459 
 
 Peoples' Pass. R. Co. v. Marshall St. Pass. Ry. Co., 8 Pa. Co. Ct. 273. 95 
 
 Peoples' Pass. R. Co. v. Philadelphia, 14 Phila. (Pa.) 231 128 
 
 Peoples' R. Co. v. Grand Ave. R. Co., 149 Mo. 245 185 
 
 Peoples' R. T. Co. v. Dash, 125 N. Y. 93 4 
 
 Peoples' St. R. Co. v. Scranton, 8 Pa. Co. Ct. 633 581 
 
 Percy v. Met. St. R. Co., 58 Mo. App. 75 433 
 
 Perez v. New Orleans City & L. R. Co., 37 La. 319 524 
 
 Perham v. Portland Gen. El. Co., 33 Oreg. 451 269, 283, 285 
 
 Perkins v. N. Y. C. R. Co., 24 N. Y. 196 447 
 
 Perkins v. Sanders, 56 Miss. 733 112 
 
 Perkiomen v. Schuylkill Val. Tract. Co., 14 Mont. Co. L. Rep. 22. . . 61 
 Perkiomen R. Co. v. Collegeville El. St. Ry. Co. (Pa. C. P.), 14 Mont. 
 
 Co. L. Rep. 13 los 
 
 Perlmutter v. Highland St. Ry. Co., 121 Mass. 497 550 
 
 Perrette v. City of Kansas City (Mo.), 62 S. W. 448 564 
 
 Perrin (Paring) v. Oliver, i Minn. 202 40 
 
 Perry v. Malarin, 107 Cal. 363 416 
 
 Perry v. M<icon Consol. St. R. Co., loi Ga. 400 295 
 
 Perry v. Pittsb. Union R. Co., 153 Pa. St. 236 477 
 
 Peter v. Kendal, 6 B. & C. 703 54- 
 
 .Peterson v. D., L. & W. R. Co. (Pa. C. P.), 9 Kulp (Pa.), 552 460 
 
 Peterson v. Seattle Tract. Co. (Wash.), 63 Pac. 539 336 
 
 Petri v. Third Ave. R. Co., 30 Misc. Rep. (N. Y.) 254 340 
 
 Pettibone v. Hamilton, 40 Wis. 402 IS4 
 
 Pettingill v. Porter, 8 Allen (Mass.), i IS9 
 
 Pettingill v. Yonkers, 116 N. Y. 558 486 
 
 Pfaff V. Terra Haute & I. R. Co., 108 Ind. 144 579 
 
 Pfeffer v. Buffalo Ry. Co., 4 Misc. Rep. (N. Y.) 46s 4S0, 460 
 
 Philadelphia v. Citizens' Pass. R. Co. (Pa. C. P.), 48 Phila. Leg. Int. 
 
 (Pa.) 220 94 
 
 Philadelphia v. Empire Pass. R. Co., 177 Pa. St. 382. ... 65, io6, 236, 257 
 Philadelphia v. Evans, 139 Pa. St. 483 257 
 
Ixxvi TABLE OF CASES. 
 
 ' FACE. 
 
 Philadelphia v. Hestonville Pass. R. Co., 177 Pa. St. 371 262 
 
 Philadelphia v. Phila. City Pass. R. Co., 177 Pa. St. 382 ... 261, 262, 267 
 Philadelphia v. Ridge Ave. Pass. Co. (Pa.), 22 Atl. 695.... 106, 257, 258 
 
 Philaa'elphia v. Thirteenth, ptc, R. Co., 3 Pa. Dist. 468 264 
 
 Philadelphia v. Thirteenth, etc., St. Pass. R. Co., 169 Pa. St. 269 262 
 
 Philadelphia City Pass. R. Co. v. Hassard, 75 Pa. St. 367 528 
 
 Philadelphia, etc., R. Co. v. Hogeland, 66 Md. 149 388 
 
 Philadelphia, etc., R. Co. v. Larkin, 47 Md. 155 495 
 
 Philadelphia, etc., R. Co. v. Lehman, 56 Md. 209 418 
 
 Philadelphia, etc., R. Co. v. Williams, 54 Pa. St. 103 128 
 
 Philadelphia & G. F. Pass. Co.'s App. 102 Pa. St. 123 35 
 
 Philadelphia, Nestor v. Spring Garden, etc., Co., 161 Pa. St. 522.... 258 
 
 Philadelphia, O'Rourke v. Bowman, 175 Pa. St. 91 257 
 
 Philadelphia & Reading R. Co. v. Boyer, 97 Pa. St. 91 312, 335, 
 
 Philadelphia & Reading R. Co. v. Long, 75 Pa. St. 257 378 
 
 Philadelphia & S. M. S. S. F. Co. v. Penn., 122 U. S. 326 594 
 
 Philadelphia Tract. Co. v. Orbann, 119 Pa. St. 37 490 
 
 Philadelphia, W. & B. R. Co. v. Quigley, 62 U. S. (21 How.) 202... 494 
 Philadelphia W. C. Tp. Co. v. Philadelphia, etc., R. Co. (Pa. C. P.), 
 
 5 Pa. Dist. 305 202 
 
 Phillips V. N. Y. C. & H. R. R. Co., 127 N. Y. 657 388 
 
 Phillips V. Peoples' Pass. R. Co., igo Pa. St. 222 300 
 
 Picard v. Ridge Ave. Pass. Ry. Co., 147 Pa. St. 195 458 
 
 Pierce v. Camden, etc., Ry. Co. (N. J.), 6 Am. Electl. Cas. ijy 535 
 
 Pierce v. Emery, 32 N. H. 484 55 
 
 Pierce v. Van Dusen, 78 Fed. 706 550 
 
 Piercy v. Met. St. R. Co., 30 Misc. Rep. (N. Y.) 612 298 
 
 Pinder v. Brooklyn H. R. Co., 65 App. Div. (N. Y.) 521 493 
 
 Pine V. St. Paul City R. Co. (Minn.), 52 N. W. 392 444, 495 
 
 Pinkerton v. Pa. Tract. Co., 193 Pa. St. 229 266, 27s 
 
 Piper v. Minneapolis St. R. Co., 52 Minn. 269 484 
 
 Piper v. Pueblo City R. Co., 4 Colo. App. 424 316 
 
 Piqua Branch of State Bank v. Knoop, 57 U. S. (16 How.) 369 33i. 
 
 Pitcher v. Peoples' St. R. Co. (Pa. C. P.), 9 Lane. L. Rev. 276. . 448, 455 
 
 460 
 
 Pittsburg & B. Tract. Co. v. Seidell, 6 Pa. Dist. 414 24 
 
 Pittsburg, C, C. & St. L. R. Co. v. Gray (Ind. App.), 59 N. E. 1000. . 542 
 
 Pittsburg, C, C. & St. L. R. Co. v. Vandyne, 57 Ind. 576 449 
 
 Pittsburg El. R. Co. v. Kelley, 57 Kan. 514 ,,, 
 
 Pittsburg, etc., R. Co. v. Backus, 154 U. S. 421 1-82 i;8'^ 
 
 Pittsburg, etc., Ry. Co. v. Commonwealth, 101 Pa. St. 192 i-sj 24'; 
 
 Pittsburg, etc., Ry. Co. v. Donohue, 70 Pa. St. 119 ' tsyz 
 
 Pittsburg, etc., Ry. Co. v. Keokuk, etc., Co., 131 U. S. 371 . . . i ' 120 
 
 Pittsburg, etc., Ry, Co. v. Russ (C. C. App., 7th C), 6 C. C. A. 597. 504 
 
TABLE OF CASES. Ixxvii 
 
 PAGE 
 
 Pittsburg, F. W. & C. R. Co. v. Hinds, 53 Pa. St. 512 500 
 
 Pittsburg Pass. R. Co. v. Point B. Co., 165 Pa. St. 37 194 
 
 Placke V. Union Depot R. Co., 140 Mo. 634 136 
 
 Piatt V. Albany Ry., 170 N. Y. 115 282 
 
 Pletcher v. Scranton Tract. Co., 185 Pa. St. 147 375 
 
 Plymouth Tp. v. Chestnut Hill & N. R. Co., 168 Pa. St. 181 123 
 
 Pohle V. Second Ave. R. Co., 13 App. Div. (N. Y.) 393 406, 462 
 
 Pollard V. Maine, etc., R. Co., 87 Me. 61 272 
 
 Pollock V. Brooklyn, etc., R. Co., 39 St. Rep. (N. Y.) 568 519. 549 
 
 Pomaski v. Grant, 119 Mich. 675 469, 476 
 
 Ponsano v. St. Charles St. R. Co., 52 La. Ann. 245 354, 362 
 
 Poole V. Falls Road El. R. Co., 88 Md. 533 136 
 
 Poole V. N. Pac. R. Co., 16 Oreg. 261 433 
 
 Pope V. United Tract. Co. (Pa. C. P.), 30 Pittsb. L. J. (N. S.) 62.. 489 
 Port Richmond, etc., R. Co. v. Staten Isl. Ry. Co. (N. Y.), 4 Am. 
 
 Electl. Cas. 239 ; 333 
 
 Posch V. So. El. R. Co., 76 Mo. App. 601 414 
 
 Post V. Beacon Vacuum Pump. & E. Co. (C. C. App., ist C), 5 
 
 U. S. App. 571 174 
 
 Post V. Hartford St. Ry. Co., 72 Conn. 362 461 
 
 Posten V. Denver Consol. Tramway Co., 11 Colo. App. 187 429, 523, 
 
 Potter V. CoUis, 156 N. Y. 16 9, 12, 2!j, 63, 75, 126' 
 
 Potter V. CoUis, 19 App. Div. (N. Y.) 392 204' 
 
 Potter v. Railroad Co., 20 Wis. 533 540 
 
 Potter V. Scranton Tract. Co., 176 Pa. St. 271 in, 260, 280 
 
 Potts V. Quaker City Elev. R. Co. (Pa. C. P.), 3 Pa. Dist. 172 144 
 
 Potwin Place v. Topeka R. Co. (Kan.), 33 Pac. 309 121 
 
 Poulin V. Broadway, etc., R. Co., 61 N. Y. 621 428, 450, 480, 483 
 
 Poulsen V. Nassau El. R. Co., 30 App. Div. (N. Y.) 246 431, 513 
 
 Poulseii V. Nassau El. R. Co., 18 App. Div. (N. Y.) 221 513 
 
 Poulson V. Brooklyn City R. Co., 13 Misc. Rep. (N. Y.) 387 452 
 
 Poultan V. London & S. W. R. Co., L. R., 2 Q. B. 534 507 
 
 • Pounder v. Northeastern R. Co., r Q. B. 385 498 
 
 Powell v. Railroad Co., 42 Mo. 63 170 
 
 P. P. & C. I. R. Co. v. C. I. B. R. Co., 144 N. Y. 152 121, 184 
 
 Prather v. Richmond.etc, R. Co., 80 Ga. 427 544 
 
 Pratt V. Home St. R. Co., 49 Mo. App. 63 266 
 
 Pray v. Omaha St. Ry. Co., 44 Nebr. 167 41S. 472 
 
 Prentiss v. Cleveland Tel. Co. (Ohio), 5 Am. Electl. Cas. 125 252 
 
 Presbyterian Church v. El. Sub., etc., Pass. R. Co., 55 N. J. L. 436 253 
 
 Presbyterian Church v. Mayor, etc., 5 Cow. (N. Y.) 538 9 
 
 President, etc., B. & F. Trk. Rd. v. United Rys. & El, Co. (Md.), 48 
 
 Atl. 723 197 
 
 President, etc., Perkiomen & R. Tp. Rd. v. Berks Co., 196 Pa. St. 2r. . 194 
 
Ixxviii TABLE OF CASES. 
 
 FACE 
 
 Pressley v. Mobile & G. R. Co., 15 Fed. 199 S07 
 
 Price V. Chas. Warner Co., i Penn. (Del.) 462 3^3, 3^7 
 
 Prime v. Twenty-second St. R. Co., i Abb. N. C. (N. Y.) 63 232 
 
 Pronk V. Brooklyn H. R. Co., 68 App. Div. (N. Y.) 390 SS8 
 
 Proprietors v. Haskell, 7 Me. 474 4i 
 
 Proprietor of Locks v. Lowell H. R. Co., 109 Mass. 221 263 
 
 Prothero v. Citizens' R. Co., 134 Ind. 431 526 
 
 Pruey v. N. Y. C, 41 App. Div. (N. Y.) 160 367 
 
 Pryor v. Met. St. Ry. Co., 85 Mo. App. 367 416, 4I9, 51° 
 
 Pueblo El. St. R. Co. v. Sherman, 25 Colo. 114 489, 524 
 
 Putman v. Broadway & S. A. R. Co., 55 N. Y. 108 449, 500 
 
 Q. 
 
 Quincy H. Ry., etc., Co. v. Gnuse, 38 111. App. 212 307, 308 
 
 Quinn v. Brooklyn City R. Co., 40 App. Div. (N. Y.) 608 355 
 
 Quinn v. Shamokin & M. C. El. R. Co., 7 Pa. Super. Ct. 19 454, 513 
 
 Quinn v. Shields, 62 Iowa, 129 113 
 
 R. 
 
 Rack V. Chicago City R. Co., 173 111. 289 303 
 
 Radjaviller v. Third Ave. R. Co., 58 App. Div. (N. Y.) 11 .... 401, 562 
 Rafferty v. Central Tract. Co. (Pa. C. P.), 22 Pittsb. L. J. (N. S.) 15. 117 
 
 Rahenkamp v. United Tract. Co., 14 Pa. Super. Ct. 635 312 
 
 Rahn Tp. v. Tamaqua, etc., R. Co., 167 Pa. St. 84 61, 240 
 
 Railroad Co. v. Burdge, 94 Ind. 46 540 
 
 Railroad Co. v. City of Cape May (N. J.), 6 Am. Electl. Cas. 45. . 226, 227 
 
 Railroad Co. v. Hambleton, 40 Ohio St. 496 274 
 
 Railroad Co. v. Hancock, 15 Ind. App. 104 540 
 
 Railroad Co. v. Marion Co. Comrs., 48 Ohio St. 249 583 
 
 Railroad Co. v. Simmons, 38 111. 242 540 
 
 Railroad Co. v. Ward, 135 111. 511 435 
 
 Railroad Co. v. Winans, 58 U. S. (17 How.) 30 119 
 
 Railroad Comrs. v. Grocer Co., 53 Kan. 212 221 
 
 Railroad Comrs. v. Houston & T. C. R. Co., 90 Tex. 340 71 
 
 Railroad Comrs. v. Market St. Ry. Co. (Cal.), 64 Pac. 1065 7, 191 
 
 Railroad Tax Cases, 92 U. S. 575 tye 
 
 Railroad & Tel. Cos. v. Board of Equalizers (C. C. M. D. Tenn.) 8s 
 
 Fed. 302 .'_ 572 
 
 Railway Co. v. Cook, 145 111. SSi 475 
 
 Railway Co. v. Higgs, 38 Kan. 375 453^ 475 
 
 Railway Co. v. McCleave (Ky.), 38 S. W. 1055 .-, 
 
 Railway Co. v. Randolph (Tex. Civ. App.), 5 Am. Electl. Cas. 379.. 278 
 Railway Co. v. Rude, 62 111. App. 550 ._, 
 
TABLE OF CASES. Ixxix 
 
 Railway Co. v. Ryan, 56 Ark. 248 222 
 
 Railway Co. v. Scott, 86 Va. 902 47S 
 
 Railway Co. v. Valleley, 32 Ohio St. 345 503 
 
 Raming v. Met. St. Ry. Co., 157 Mo. 477 448, 473, S39. 548 
 
 Ramsey v. Montreal St. Ry. Co., 32 C. L. J. 52 307 
 
 Ramsey Co. v. Chicago, etc., R. Co., 33 Minn. 537 575 
 
 Randall v. Frankford, S. & C. P. Pass. R. Co., 139 Pa. St. 464 499 
 
 Randall v. Frankfort & S. Pass. R. Co., 8 Pa. Co. Ct. 277 470 
 
 Randall v. Jacksonville St. R. Co., 19 Fla. 409 247 
 
 Randall v. Krieger, 90 U. S. 137 30 
 
 Randall v. New Orleans & N. E. R. Co., 45 La. Ann. 778 445 
 
 Ranger v. Great Western Ry. Co., s H. L. Cas. 86 494 
 
 Ranken v. St. Louis & B. Sub. Ry. Co., 98 Fed. 479 214, 242 
 
 Ransberry v. N. Am. Transp. & T. Co., 22 Wash. 476 566 
 
 Ransom v. Citizens' Ry. Co., 104 Mo. 375 128, 136 
 
 Rapid R. Co. v. Mt. Clement, 118 Mich. 133 60, 212, 245 
 
 Rapp V. City, etc., R. Co., 12 W. L. B. 119 79 
 
 Rasher v. E. Detroit, etc., Ry. Co., 90 Mich. 413 297 
 
 Raulston v. Phila. Tract. Co., 30 Pa. Super. Ct. 412 406 
 
 Ray V. Cortland & H. Tract. Co., 19 App. Div. (N. Y.) 530. . 442, 444, 505 
 
 Re Auburn City R. Co., 88 Hun (N. Y.), 603 75 
 
 Re Brooklyn City R. Co., 26 App. Div. (N. Y.) 627 99 
 
 Re Brooklyn Elev. R. Co., 32 App. Div. (N. Y.) 221 166 
 
 Re Buffalo, 139. N. Y. 422 157 
 
 Re Buffalo Tract. Co., 25 App. Div. (N. Y.) 447 74, 100 
 
 Re Cortland, etc., R. Co., 31 Hun (N. Y.), 72 102 
 
 Re Daly, 26 App. Div. (N. Y.) 326 166 
 
 Re Era Assurance Society, 30 L. J. Eq. (N. S.) 137 173 
 
 Re Jersey City & B. Ry. Co. (N. J. Sup.), 49 Atl. 437 583 
 
 Re Kings Co. El. R. Co., 105 N. Y. 97 20 
 
 Re Kings Co. El. R. Co., 82 N. Y. 95 100 
 
 Re Loader v. The Brooklyn H. R. Co., 14 Misc. Rep. (N. Y.) 208. . 228 
 
 Re Minneapolis & St. L. R. Co., 76 Minn. 302 158 
 
 Re Nassau Cable Co., 36 Hun (N. Y.), 272 loi 
 
 Re N. Y. Cable Ry. Co., 40 Hun (N. Y.), i 100 
 
 Re N. Y. Elev. Ry. Co., 70 N. Y. 327 113 
 
 Re Peoples' R. Co., 112 N. Y. 578 81 
 
 Re Port Chester St. Ry. Co., 43 App. Div. (N. Y.) 536 12, 100 
 
 Re P. P. & C. L R. Co., 67 N. Y. 371 160. 169 
 
 Re R. I. Suburban Ry. Co. (R. I.), 48 Atl. 591 162 
 
 Re Rochester El. R. Co., 123 N. Y. 3SI I34. IS9, I93 
 
 Re Rochester & Lake Ontario R. Co., 51 App. Div. (N. Y.) 65 .... 199 
 
 Re Shelton St. R. Co., 6g Conn. 626 7r 
 
 Re Split Rock Cable R. Co., 128 N. Y. 408 160 
 
IXXX TABLE OF CASES. 
 
 PAGE. 
 
 Re Syracuse & S. B. Ry. Co., 33 Misc. Rep. (N. Y.) Sio '■ • • 80 
 
 Re Southern Boulevard Co., 43 St. Rep. (N. Y.) 611 165 
 
 Re Staten Isl. Midland R. Co., 22 App. Div. (N. Y.) 366 166 
 
 Re Toronto R. Co. (Can.), 25 Ont. App. 135 579 
 
 Re Trenton St. Ry. Co. (N. J.), 47 Atl. 819 170, 599 
 
 Re Trenton St. Ry. Co. (N. J.), 44 Atl. 177 189 
 
 Re Washington St., etc., R. Co., 52 Hun (N. Y.), 311 • 169 
 
 Re Washington St., etc., R. Co., 115 N. Y. 442 7 
 
 Re W. Jersey T. Co., 45 Atl. 282 189. 
 
 Read v. Brooklyn H. R. Co., 32 App. Div. (N. Y.) 503 385 
 
 Reading Co. v. Schuylkill Val. Tract. Co., 14 Mont. Co. L. Rep. 10. . . 61 
 
 Readington v. Phila. Tract. Co., 132 Pa. St. 154 460 
 
 Reardon v. Third Ave. R. Co., 24 App. Div. (N. Y.) 163 341 
 
 Reber v. Pittsb. & B. Tract. Co., 179 Pa. St. 339 470, 518. 
 
 Rector v. Syracuse R. T. R. Co., 66 App. Div. (N. Y.) 395 402 
 
 Reddon v. Union Pac. Ry. Co., 5 Utah, 355 545 
 
 Redfield v. Oakland Consol. St. R. Co., no Cal. 277 415, 453 
 
 Redford v. Spokane St. R. Co., 15 Wash. 419 384. 
 
 Redford v. Spokane St. R. Co., 9 Wash. 55 364 
 
 Reed v. Frankfort Bank, 23 Me. 318 40 
 
 Reed v. Minneapolis St. R. Co., 34 Minn. 557 529. 
 
 Reem v. St. Paul City Ry. Co. (Minn.), 80 N. W. 638 468 
 
 Reeves v. Phila. T. Co., 152 Pa. St. 153 16, 121, 200 
 
 Regensburg v. Nassau El. R. Co., 58 App. Div. (N. Y.) 566 417 
 
 Regner v. G. F., etc., St. R. Co., 74 Hun (N. Y.), 202 531 
 
 Reid V. Brooklyn H. R. Co., 32 App. Div. (N. Y.) 503 366 
 
 Reid V. Met. St. R. Co., 58 App. Div. (N. Y.) 87 ....■ 340, 357, 389 
 
 Reid V. Norfolk City R. Co., 94 Va. 117 138, 
 
 Reid V. Omnibus R. Co., 33 Cal. 212 127 
 
 Reidman v. Brooklyn, etc., R. Co., 28 App. Div. (N. Y.) 540 266 
 
 Reidy v. Met. St. R. Co., 27 Misc. Rep. (N. Y.) 527 459. 
 
 Reiley v. Salt Lake R. T. Co., 10 Utah, 428 375 
 
 Reilly v. Brooklyn H. R. Co., 65 App. Div. (N. Y.) 453 552 
 
 Reilly v. Third Ave. R. Co., 16 Misc. Rep. (N. Y.) 11 324, 358- 
 
 Reilly v. Troy City R. Co., 32 App. Div. (N. Y.) 131 349 
 
 Reining v. N. Y., L. & W. R. Co., 128 N. Y. 157 140, 151 
 
 Reiss V. Met. St. Ry. Co., 28 Misc. Rep. (N. Y.) 198 .' 340 
 
 Reynolds v. N. Y. C, etc., R. Co., 58 N. Y. 248 376 
 
 Reynolds v. Richmond & M. R. Co., 92 Va. 400 41- 
 
 R. F. Stevens Co. v. Brooklyn H. R. Co., 59 App. Div. (N. Y.) 23 362 
 
 Rhing v. Broadway & Seventh Ave. R. Co., 53 Hun (N. Y.), 321. 38s 
 
 Rice v. Crescent City R. Co., 41 La. Ann. 108 ,0, 
 
 Rice v. Detroit, Y. & A. A. Ry. (Mich.), 81 N. W. 927 ...!!!!"!!! 225 
 
 Rice V. Railroad Co., i Black (U. S.), 358 \\\\ 35, 
 
TABLE OF CASES. IxXXl 
 
 PAGE 
 
 Richmond v. Chicago & W. Mich. Ry. Co., 87 Mich. 374 335. 
 
 Richmond City Ry. Co. v. Scott (Va.), 11 S. E. 404 426 
 
 Richmond, etc., R. Co. v. Richmond, 26 Gratt. (Va.) 96 5 
 
 Richmond & D. R. Co. v. Jefferson, 89 Ga. 544 499 
 
 Richmond & D. R. Co. v. Scott (Va.), 14 S. E. 763 525 
 
 Richmond Ry. & El. Co. v. Bowles, 92 Va. 738 547 
 
 Richmond Ry. & El. Co. v. Brown, 97 Va. 26 112 
 
 Richmond Ry. & El. Co. v. Garthright, 92 Va. 627 325 
 
 Richmond Tract. Co. v. Hildebrand (Va.), 34 S. E. 888 371, 391, 407 
 
 Richter v. Cicero & P. St. R. Co., 70 111. App. 196 332 
 
 Ricketts v. Birmingham St. R. Co., 85 Ala. 600 274. 
 
 Ricketts v. Chesapeake, etc., R. Co., 33 W. Va. 423 49S 
 
 Riddle v. Locks & Can., 7 Mass. 185 39 
 
 Ridenhour v. Kansas City Cable R. Co., 102 Mo. 283 530 
 
 Ridge Ave. Pass. R. Co. v. Philadelphia, 181 Pa. St. 592 197 
 
 Ridpath v. Spokane Co. (Wash. ) , 63 Pac. 261 586 
 
 Rieglemann v. Third Ave. R. Co., 9 Misc. Rep. (N. Y.) 51 363 
 
 Ripley v. Second Ave. R. Co., 8 Misc. Rep. (N. Y.) 835 S26, SS8 
 
 Rische v. Texas Transp. Co. (Tex.), 66 S. W. 324 421 
 
 Robbins v. Springfield St. R. Co., 165 Mass. 30 371, 380 
 
 Robert Mitchell F. Co. v. Cleveland, 7 Ohio N. P. 639 244 
 
 Roberts v. Easton, 19 Ohio St. 78 78,102 
 
 Roberts v. Johnson, 58 N. Y. 613 520 
 
 Roberts v. N. Y., etc., R. Co., 175 Mass. 296 527 
 
 Roberts v. Spokane St. Ry. Co., 23 Wash. 325 279, 324, 354, 370, 382 
 
 383 
 
 Robinson v. Cone, 22 Vt. 213 272 
 
 Robinson v. N. Y. C. & H. R. R. Co., 66 N. Y. 11 388 
 
 Robinson v. Rockland, T. & C. R. Co., 87 Mo. 387 S02 
 
 Roche V. Brooklyn City & N. R. Co., 105 N. Y. 294 SSO 
 
 Rochester v. Telephone Co., 52 App. Div. (N. Y.) 6 252 
 
 Rochester R. Co. v. Robinson, .133 N. Y. 242 163 
 
 Roddy V. Brooklyn, etc., R. Co., 32 App. Div. (N. Y.) 3" •■•• 5, i3. 16 
 
 Rohe V. Third Ave. R. Co., 10 Misc. Rep. (N. Y.) 740 357 
 
 Rollins V. Clay, 33 Me. 132 iip 
 
 Rome St. R. Co. v. McGinnis, 94 Ga. 229 33i 
 
 Romer v. St. Paul City R. Co., 75 Minn. 211 109 
 
 Rommel v. Shambacher, 120 Pa. St. 579 499 
 
 Ronnebaum v. Mt. Auburn Cable R. Co. (Cin. Super. Ct.), 29 Ohio 
 
 L. J. 338 79 
 
 Rooks V. Houston, etc., R. Co., 10 App. Div. (N. Y.) 98 381 
 
 Roosa V. Brooklyn H. R. Co., 28 Misc. Rep. (N. Y.) 387 224 
 
 Root V. Des Moines City Ry. Co. (Iowa), 83 N. W. 905. .. . 482, 526, SS6 
 
 Rose V. Railroad Co., 106 N. C. 170 492 
 
 vi 
 
Ixxxii TABLE OF CASES. 
 
 PAGE 
 
 Jioseman v. Carolina C. R. Co., 112 N. C. 709 SOS. 532 
 
 Rosenberg v. Third Ave. R. Co., 47 App. Div. (N. Y.) 323- ••• 447. 4S0 
 
 S4I 
 
 Rosenblatt v. Brooklyn H. R. Co., 26 App. Div. (N. Y.) 600 318 
 
 Roth V. Met. St. Ry. Co., 13 Misc. Rep. (N. Y.) 213 3S6 
 
 Rouse V. Detroit El. Ry. (Mich.), 87 N. W. 68 361 
 
 Rouser v. North Park St. R. Co., 97 Mich. 565 44i 
 
 Rouser v. Wash. & G. R Co., 26 Wash. L. Rep. 559 524 
 
 Rowe V. Augusta Council, 24 Ga. 326 67 
 
 Rowe V. N. Y. & N. J. Tel. Co. (N. J.), 48 Atl. 523 289 
 
 Rown V. Christopher & Tenth St. R. Co., 34 Hun (N. Y.), 471. . 504, 507 
 
 Ruble V. Turner, 2 Hen. & Mumf. (Va.) 38 313 
 
 Ruckert v. Grand Ave. Ry. Co. (Mo.), 63 S. W. 814 41, 238 
 
 Rudy V. Rio Grande W. R. Co., 8 Utah, 165 501 
 
 Ruggles v. Illinois, 108 U. S. 541 435 
 
 Ruppert v. Brooklyn H. R. Co., 154 N. Y. go 303 
 
 Ruschenberg v. So. El. R. Co. (Mo.), 61 S. W. 626 226, 309, 377 
 
 Rush V. Spokane Falls & N. Ry. Co., 23 Wash. 501 565 
 
 Russell V. Met. St. Ry. Co., 35 Misc. Rep. (N. Y.) 293 565 
 
 Russell V. Minneapolis St. Ry. Co. (Minn.), 86 N. W. 346 363 
 
 Russell V. Pittsb., C, C. & St. L. Ry. Co. (Ind.), 61 N. E. 678 479 
 
 Ryan v. Detroit Citizens' Ry. Co. (Mich.), 82 N. W. 278 406 
 
 Ryan v. La Crosse City Ry. Co., 108 Wis. 122 318, 376, 398 
 
 S. 
 
 Saffer v. D. D., etc., R. Co., 24 St. Rep. (N. Y.) 210 518 
 
 Saffer v. Westchester El. Ry. Co., 22 Misc. Rep. (N. Y.) 5SS... 299, 340 
 
 Safford v. Chippewa Val. El. R. Co. (Wis.), 85 N. W. 1036 218 
 
 Safford v. Drew, 3 Duer (N. Y.), 627 390 
 
 Saginaw Union St. R. Co. v. Michigan C. R. Co., 91 Mich. 657.... 286 
 
 Sahlgaard v. St. Paul City R. Co., 48 Minn. 232 459 
 
 Saiko V. St. Paul City R. Co., 67 Minn. 8 484 
 
 St. Anna's Asylum v. New Orleans, 105 U. S. 362 33 
 
 St. Bernard v. Kemper, 60 Ohio St. 244 583 
 
 St. Charles St. R. Co. v. Board of Assessors, 51 La. Ann. 458 592 
 
 St. Clair Co. Tp. Co. v. Illinois, 96 U. S. 63 33 35 
 
 St. Clair St. Ry. Co. v. Eadie, 43 Ohio St. 91 ^29 
 
 St. Joseph Co. v. South Bend, etc., R. Co., 118 Ind. 68 19 
 
 St. Louis v. Mo. Ry. Co., 87 Mo. 151 266 
 
 St. Louis V. Mo. Ry. Co., 13 Mo: App. 524 213 
 
 St. Louis v. St. Louis R. Co., 89 Mo. 44 2-ji 
 
 St. Louis V. W. U. T. Co., 149 U. S. 465 217 
 
 St. Louis, A. & T. R. Co. v. Finlay, 79 Tex. 85 ........"!.'.. 530 
 
TABLE OF CASES. Ixxxui 
 
 PACE 
 
 St. Louis, A. & T. R. Co. v. Mackie, 71 Tex. 491 499. 
 
 St. Louis El. Ry. Co. v. Snow, 88 111. App. 660 390 
 
 St. Louis, etc., R. Co. v. City of E. St. Louis, 102 111. 433 126 
 
 St. Louis, etc, R. Co. v. Petty, 57 Ark. 359 144 
 
 St. Louis, etc., R. Co. v. St. Louis, 81 111. App. 109 123 
 
 St. Louis, etc., R. Co. v. So. R. Co., 105 Mo. 581 174 
 
 St. Louis, etc., R. Co. v. Sweet, 60 Ark. 550 415 
 
 St. Louis, etc., R. Co. v. Terra Haute R. Co., 145 U. S. 393 120 
 
 St. Louis, I. M. & S. R. Co. v. Meyer, 40 U. S. App. 554 499 
 
 St. Louis & M. R. Co. V. Kirkwood, 159 Mo. 239 107 
 
 St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649 41, 221 
 
 St. Louis & S. F. R. Co. v. Mitchell, 57 Ark. 418 420 
 
 St. Louis S. W. R. Co. v. Berger, 64 Ark. 613 498 
 
 St. Louis T. Ry. Co. v. St. Louis, etc.. Terminal Ry. Co., iii Mo. 666. 59 
 St. Michael's P. E. Ch. v. Forty-second St., etc., R. Co., 26 Misc. Rep. 
 
 (N. Y.) 601 79, 199, 203 
 
 St. Tammany Water Works Co. v. New Orleans Water Works Co., 
 
 120 U. S. 64 33 
 
 Salt Lake City v. Hollister, 118 U. S. 256 120 
 
 Saltzman v. Brooklyn City R. Co., 73 Hun (N. Y.), 567 467 
 
 Sample v. Consol. L. & Ry. Co. (W. Va.), 40 S. E. 597 S50 
 
 San Antonio v. Rische (Tex.), 38 S. W. 388 9 
 
 San Antonio & A. P. R. Co. v. Faires (Tex. Civ. App.), 26 S. W. 82. IS3 
 
 San Antonio E. Co. v. Beyer (Tex. Civ. App.), 57 S. W. 851 332 
 
 San Antonio St. R. Co. v. Cailloutte, 79 Tex. 341 S4i 
 
 San Antonio St. R. Co. v. Mechler (Tex.), 30 S. W. 899 ... 303, 313, 375 
 
 San Antonio St. R. Co. v. Renken, 15 Tex. Civ. App. 229 294 
 
 San Antonio St. R. Co. v. State, Elmendorf, 90 Tex. 520 36 
 
 Sanders v. Railway Co., 147 Mo. 411 277 
 
 Sanders v. Reister, i Dak. 172 545 
 
 Sanders v. So. R. Co., 107 Ga. 132 524 
 
 Sandfleet v. Toledo, 10 Ohio C. C. 460 76, 81 
 
 Sandford v. Eighth Ave. R. Co., 23 N. Y. 343 447, S02 
 
 Sandford v. Hestonville, M. & F. Pass. R. Co., 136 Pa. St. 84. . 4S6, 472 
 
 490 
 
 Sandford v. Hestonville, M. & F. Pass. R. Co., 153 Pa. St. 300 455 
 
 Sandford v. Union Ry. Pass. Co., 16 Pa. Super. Ct. 393 260 
 
 Sanford v. Pawtucket St. R. Co., 19 R. I. 650 602 
 
 San Francisco v. C. P. R. Co., 63 Cal. 467 579 
 
 San Francisco & N. P. R. Co. v. State Board of Equalizers, 60 Cal. 12. 579 
 
 Santa Fe R. Co. v. New Mexico & S. P. R. Co., 3 N. M. 116 587 
 
 Santa Rosa City R. Co. v. Center St. R. Co. (Cal.), 38 Pac. 989 ... . 48 
 
 Sauers v. Union Tract. Co., 193 Pa. St. 602 300 
 
 Saumby v. Rochester, 145 N. Y. 81 547 
 
Ixxxiv TABLE OF CASES. 
 
 PAGE 
 
 Saunders v. City & S. R. Co., 99 Tenn. 130 310, 326 
 
 Savage v. Third Ave. R. Co., 29 App. Div. (N. Y.) 556 464, 54i 
 
 Savannah St. R. Co. v. Bryan, 86 Ga. 312 496 
 
 Savannah Thunderbolt, etc., Ry. Co. v. Beasley, 94 Ga. 142 313 
 
 Sawyer v. Dooley, 21 Nev. 390 S7i 
 
 Scannell v. Boston El. Ry. Co., 176 Mass. 170 315, 354, 409 
 
 Schaaf v. Cleveland, M. & S. El. R. Co., 16 Ohio C. C. 252 136 
 
 Schaefer v. St. Louis S. R. Co., 128 Mo. 64 446 
 
 Schaefer v. N. Chicago St. R. Co., 82 111. App. 473 504 
 
 Schaefer v. Union R. Co., 29 App. Div. (N. Y.) 261 468, 518 
 
 Schalscha v. Third Ave. R. Co., 19 Misc. Rep. (N. Y.) 141 454 
 
 Schapierer v. Third Ave. R. Co., 30 St. Rep. (N. Y.) 209 549 
 
 Schausten v. Toledo Consol. St. R. Co., 18 Ohio C. C. 691 . . 34s, 357, 368 
 
 Schefifer v. Louisville, H. & St. L. Ry. Co., 60 S. W. 403 451 
 
 Schenectady, etc., P. R. Co. v. Thatcher, 11 N. Y. 102 40, 42 
 
 Schenkel v. Pittsb. & B. Tract. Co., 194 Pa. St. 182 417 
 
 Schepers v. Union Depot R. Co., 126 Mo. 665 429, 447, 484 
 
 Schild V. Central Park, N. & E. R. R. Co., 133 N. Y. 446. . 239, 242, 394 
 
 Schiller v. D. D., etc., R. Co., 26 Misc. Rep. (N. Y.) 392 481, S30 
 
 Schilling v. Met. St. R. Co., 47 App. Div. (N. Y.) 500 345 
 
 Schlitz v. Nassau El. St. R. Co., 44 App. Div. (N. Y.) 542 357 
 
 Schmeltzer v. St. Paul City Ry. Co. (Minn.), 82 N. W. 1092 462 
 
 Schmid v. Humphrey, 48 Iowa, 652 418 
 
 Schmidt v. Coney Isl. B. R. Co., 26 App. Div. (N. Y.) 391 .... 454, 515 
 Schmidt v. Galveston, etc., R. Co. (Tex. Civ. App.), 24 S. W. 547.. 582 
 
 Schmidt v. Market St. & W. G. R. Co., 90 Cal. 37, 27 Pac. 61 247 
 
 Schmidt V. North Jersey St. Ry. Co. (N. J. Sup.), 49 Atl. 438 462 
 
 Schmidt v. St. Louis R. Co. (Mo.), 63 S. W. 834 302 
 
 Schmidt v. Steinway & H. B. R. Co., 133 N. Y. 566 350 
 
 Schmitt V. Met. L. Ins. Co., 13 App. Div. (N. Y.) 122 546 
 
 Schmitt V. New Orleans, 48 La. Ann. 145 238 
 
 Schneidau v. New Orleans & C. R. Co., 48 La. Ann. 866 337 
 
 Schneider v. Market St. Ry. Co. (Cal.), 66 Pac. 734 485, 527 
 
 Schneider v. New Orleans & C. R. Co. (La.), 54 Fed. 466 525 
 
 Schneider v. Second Ave. R. Co., 133 N. Y. 585 312, 431 
 
 Schneider v. Third Ave. R. Co., 133 N. Y. 583 5op 
 
 Schnell v. Met. St. Ry. Co., 50 App. Div. (N. Y.) 616 277, 392 
 
 Schoenholtz v Third Ave. R. Co., 16 Misc. Rep. (N. Y.) 9 38'; 
 
 Schron v. Staten Isl. El. R. Co., 16 App. Div. (N. Y.) in ^'^n ^cg 
 
 Schulte V. New Orleans, etc., Co., 44 La. Ann. 509 301 370 •380 
 
 Schulz V. Second Ave. R. Co., 12 App. Div. (N. Y.) 440 .' cee 
 
 Schuylkill Tract. Co. v. Shenandoah, 23 Pa. Co. Ct. 222 266 
 
 Schwartz v. Cincinnati St. R. Co., 8 Ohio C. C. 484 -27 
 
 Schwartz v. Union Tract. Co. (Pa. C. P.), 30 Pittsb L J (N S )' 
 
 ^53 ■..■....;..;. 378 
 
TABLE OF CASES. IxXXV 
 
 Schwarzbaum v. Third Ave. R. Co., 54 App. Div. (N. Y.) 164.. 325, 360 
 
 Schwarzbaum v. Third Ave. R. Co., 60 App. Div. (N. Y.) 274 357 
 
 Sciotino v. Crescent City R. Co., 49 La. Ann. 7 375 
 
 Scott V. Bergen Co. Tract. Co. (N. J.), 48 Atl. 1118 . . . 414, 472, 483, 519 
 Scott V. Central Park, N. &. E. R. R. Co., 53 Hun (N. Y.), 414. ... 497 
 
 Scott V. Dublin, etc., R. Co., 11 Irish C. L. 377 521 
 
 Scott V. Third Ave. R. Co., 41 St. Rep. (N. Y.) 152 316, 348 
 
 Scranton Ry. Co. v. City of Scranton (Pa. C. P.), 5 Lack. Leg. N. 
 
 250 • 123 
 
 Sea Beach R. Co. v. C. L & G. El. R. Co., 22 App. Div. (N. Y.) 477. . 80 
 
 Sears v. Seattle Consol. St. R. Co., 6 Wash. 227 300, 510 
 
 Seattle & M. R. Co. v. State, 7 Wash. 150 188 
 
 Seelig v. Met. St. R. Co., 18 Misc. Rep. (N. Y.) 383 453, 471, 515 
 
 Seidlinger v. Brooklyn City R. Co., 28 Hun (N. Y.), 503 509, 554 
 
 Seifter v. Brooklyn H. R. Co., 169 N. Y. 254 340, 395, 402 
 
 Seipp v. D. D., etc., Co., 45 App. Div. (N. Y.) 489 400 
 
 Selby V. Detroit Ry. (Mich.), 81 N. W. 106 482 
 
 Selden v. Jacksonville (Fla.), 14 L. R. A. 370 137 
 
 Sells v. Columbus St. R. Co., 28 Ohio L. J. 172 153 
 
 Senn v. So. R. Co., 13s Mo. 512 307, 310 
 
 Sesselman v. Met. St. R. Co., 65 App. Div. (N. Y.) 484 371 
 
 Sexton v. Met. St. R. Co., 40 App. Div. (N. Y.) 26 462, 527 
 
 Seymour v. Citizens' R. Co., 114 Mo. 266 419, 525 
 
 Shade v. Union Tract. Co. (C. P.), 7 Pa. Dist. 34 523 
 
 Shamokin v. Shamokin St. R. Co., 178 Pa. St. 128 257 
 
 Shankenberry v. Met. St. R. Co. (Mo.), 46 Fed. 177 513 
 
 Shanley v. Union R. Co., 14 Misc. Rep. (N. Y.) 442 358 
 
 Sharer v. Paxson, 171 Pa. St. 26 464 
 
 Sharp V. Kansas City Cable Ry. Co. (Mo.), 20 S. W. 93 427 
 
 Shaughnessy v. Consol. Tract. Co., 17 Pa. Super. Ct. 588 S31 
 
 Shay V. Canton & S. Ry. Co. (N. J.), 49 Atl. 547 520 
 
 Shea V. Manhattan Ry. Co., 27 St. Rep. (N. Y.) 33 507 
 
 Shea V. Poters, etc., Co., 44 Cal. 414 297 
 
 Shea V. St. Paul City Ry. Co., 50 Minn. 395 313, 325, 366, 396 
 
 Sheets V. Connelly St. R. Co., 54 N. J. L. 518 375 
 
 Sheff V. Huntington, 16 W. Va. 317 545 
 
 Sheffer v. L. H. & St. L. Ry. Co. (Ky.), 60 S. W. 403 4Si 
 
 Shelbyville, etc., Tp. Co. v. Barnes, 42 Ind. 498 I73 
 
 Shelly V. Brunswick Tract. Co. (N. J.), 48 Atl. 562 31S 
 
 Shenandoah Val. R. Co. v. Moose, 83 Va. 827 530 
 
 ?heridan v. Brooklyn, etc., R. Co., 36 N. Y. 39 499, 530 
 
 .^herlock v. Kansas City Belt R. Co., 142 Mo. 172 I37. I44 
 
 Sherman S. & S. Ry. Co. v. Eares (Tex. Civ. App.), 61 S. W. 550. . 565 
 Sheyer v. Lowell (Cal.), 66 Pac. 307 • 56o 
 
Ixxxvi TABLE OF CASES. 
 
 Shields V. Ohio, pS U. S. (5 Otto) 319 40, I73, S9& 
 
 Shields V. State, 26 Ohio St. 86 40 
 
 Shindelus v. St. Paul City Ry. Co. (Minn.), 83 N. W. 386 389 
 
 Shipley v. Continental R. Co., 13 Phila. (Pa.) 128 7 
 
 Short V. Baltimore City Pass. Ry. Co., 50 Md. 73 231 
 
 Short V. N. Pac. E. Co., i N. Dak. 164 S50 
 
 Shreveport v. Prescott, 51 La. Ann. 1895 602 
 
 Shwart v. Consol. Tract. Co., 15 Pa. Super. Ct. 26 461 
 
 Shy V. Union Depot R. Co., 134 Mo. 681 528 
 
 Siacik v. N. Central Ry. Co. (Md.), 48 Atl. 149 259, 273, 394 
 
 Sias V. Lowell, L. & H. St. Ry. Co. (Mass.), 60 N. E. 974 289 
 
 Sias V. Rochester Ry. Co., 169 N. Y. 118 425, 523 
 
 Sibley v. New Orleans City & L. R. Co. (La.), 21 So. 851 470 
 
 Sickler v. N. Jersey St. R. Co. (N. J. Sup.), 46 Atl. 779 298 
 
 Sidmond v. Brooklyn H. R. Co., 69 App. Div. (N. Y.) 471 559 
 
 Siek V. Toledo Consol. St. R. Co., 16 Ohio C. C. 393.. 270, 300, 344, 345 
 
 384 
 
 Siemsen v. Oakland, S. L. & H. El. Ry. Co. (Cal.), 66 Pac. 672 432 
 
 Silberstine v. Houston, etc., R. Co., 117 N. Y. 293 276, 398 
 
 Silliman v. Fredericksburgh, etc., R. Co., 27 Gratt. (Va.) 119 46 
 
 Silsby V. Lyle, 117 Mich. 327 94 
 
 Silsby V. Tacoma, O. & G. H. R. Co. (Wash.), 32 Pac. 1067 259 
 
 Simms v. Brooklyn St. R. Co., 37 Ohio St. 556 95 
 
 Simmons v. Toledo (Ohio), i Toledo Leg. N. 249 78, 79 
 
 Simmons v. Toledo, 5 Ohio C. C. 124 88, 96, 103, 292 
 
 Simmons v. Toledo, 8 Ohio C. C. 535 137 
 
 Simon v. M. St. R. Co., 29 Misc. Rep. (N. Y.) 126 259, 276 
 
 Sims V. M. E. R. Co., 65 App. Div. (N. Y.) 270 95, 474 
 
 Sindall v. Mayor, etc., of Baltimore (Md.), 49 Atl. 645 573 
 
 Sinnot v. Chicago & N. W. R. Co., 81 Wis. 95 152 
 
 Sioux City St. Ry. Co. v. Sioux City, 138 U. S. 98 108, 207, 568, 602 
 
 Sirk V. Marion St. Ry. Co., 11 Ind. App. 680 515 
 
 Sixth Ave. R. Co. v. Kerr, 72 N. Y. 330 174 
 
 Slager v. Ridge Ave. Pass. Ry. Co., 119 Pa. St. 70 458 
 
 Slee V. Bloon, 19 Johns. (N. Y.) 456 39 
 
 Sloane v. Peoples' EI. R. Co., 7 Ohio C. C. 84 65, 80, 88 
 
 Smedis v. Brooklyn, etc., R. Co., 88 N. Y. 14 367 
 
 Smedlcy v. Hestonville, M. & F. Pass. R. Co., 184 Pa. St. 620. . . 414, 519 
 
 Smiley v. St. L. & H. Ry. Co. (Mo.), 61 S. W. 667 540 
 
 Smithy. Bailey, 14 App. Div. (N. Y.) 283 350 
 
 Smith v. Chicago, etc., Ry. Co., 4 S. Dak. 80 545 
 
 Smith V. City of Buffalo, 159 N. Y. 527 600 
 
 Smith V. City & S. R. Co., 29 Oreg. 539 357^ 44^ 
 
 Smith V. Col., L. & S. Ry. Co., 8 Ohio N. P. (C. P.) i 75 
 
TABLE OF CASES. IxXXvii 
 
 PASS 
 
 Smith V. Crescent City R. Co., 47 La. Ann. 733 356, 372 
 
 Smith V. East End St. R. Co., 87 Tenn. 626 80 
 
 Smith V. Eastern R. Co., 35 N. H. 356 546 
 
 Smith V. El. Tract. Co. (Pa. C. P.), 6 Pa. Dist. 471 362, 367 
 
 Smith V. El. Tract. Co., 187 Pa. St. no 318 
 
 Smith V. Kansas City El. Ry. Co. (Kan.), 60 Pac. 1058 374 
 
 Smith V. Kingston City R. Co., SS App. Div. (N. Y.) 143 427, 483 
 
 Smith V. Lehigh Val. R. Co., 170 N. Y. 390 558 
 
 Smith V. Met. St. R. Co., 66 App. Div. (N. Y.) 600 364, 365, 405 
 
 Smith V. Met. St. R. Co., 59 App. Div. (N. Y.) 60 430 
 
 Smith V. Met. St. R. Co., 7 App. Div. (N. Y.) 253 320 
 
 Smith v. Nashua St. Ry. (N. H.), 44 Atl. 133 231 
 
 Smith V. Nassau El. R. Co., 57 App. Div. (N. Y.) 152 562 
 
 Smith V. N. Y. C, etc., Co., 164 N. Y. 491 535 
 
 Smith V. N. Y. & H. R. Co., 19 N. Y. 127 279 
 
 Smith V. Reading Pass. R. Co. (Pa. C. P.), 2 Pa. Dist. 490 118 
 
 Smith V. Railway, 69 N. H. 504 232, 276 
 
 Smith V. St. Paul City Ry. Co., 32 Minn, i 426, 446, 509 
 
 , Smith V. Union R. Co., 61 Mo. 588 321 
 
 Smyth V. Ames, 169 U. S. 466 221, 435, 523 
 
 Snedecker v. Nassau El. R. Co., 41 App. Div. (N. Y.) 628 416, 510 
 
 Snider v. New Orleans & C. R. Co., 48 La. Ann. i 273, 35s 
 
 Snyder v. Elevated Co. (W. Va.), 39 L. R. A. 502 382 
 
 Snyder v. Fort Madison St. Ry. Co., 105 Iowa, 284 136, 138 
 
 Somerville v. City R. of Poughkeepsie, 43 St. Rep. (N. Y.) 425.... 276 
 
 Sommers v. Cincinnati, 8 Am. L. Rec. 612. 79, 125 
 
 Sondheim v. Brooklyn H. R. Co. & N. B. Co., 36 Misc. Rep. (N. Y.) 
 
 339 402 
 
 Sonn V. Erie Ry. (N. J. Sup.), 49 Atl. 458 383 
 
 Sonnenfeld Millinery Co. v. Peoples' R. Co., 59 Mo. App. 68 301 
 
 South & N. A. R. Co. V. Highland Ave. & B. R. Co., 119 Ala. 105. . 4, 16 
 
 South Boston R. Co. v. Middlesex R. Co., 121 Mass. 485 91 
 
 South Chicago St. Ry. Co. v. Purvis, 193 III. 454 SSI 
 
 South Covington & C. St. R. Co. v. Beatty, 20 Ky. L. Rep. 1845. . 326, 449 
 South Covington & C. St. R. Co. v. Bellville, 29 Ky. L. Rep. 1148. .. . S82 
 
 South Covington & C. St. R. Co. v. Berry, is L. R. A. 604 309 
 
 South Covington & C. St. R. Co. v. McCleave, 18 Ky. L. Rep. 1036. . 4SS 
 
 South Covington & C. St. R. Co. v. Ware, 84 Ky. 262 512 
 
 Southern Bell Tel. Co. v. Francis, 109 Ala. 224 142 
 
 Southern Boul. R. Co. v. North N. Y. City Tract. Co., 16 Misc. Rep. 
 
 (N. Y.) 263 89 
 
 Southern Cal. R. Co. v. S. O. P. R. Co. (Cal.), 43 Pac. 1123 66 
 
 Southern Kansas R. Co. v. Walsh, 45 Kan. 653 415 
 
 Southern Ry. Co. v. Atl. Ry., etc., Co. (Ga.), 36 S. E. 873 ... • 13, I37, 186 
 
 187 
 
IxXXviii TABLE OF CASES. 
 
 Southern R. Co. v. City of Memphis (U. S. C. C. A., Tenn.), 97 Fed. 
 
 819 no, 123 
 
 Southern R. Co. v. Crowder (Ala.), 30 So. 592 432 
 
 Southern R. Co. v. Dyson, 109 Ga. 103 548 
 
 Southern R. Co. v. Mitchell, 98 Tenn. 27 523 
 
 Southwestern Tel. & Teleg. Co. v. Crank, 27 S. W, 38 537 
 
 Spargo V. West End St. Ry. Co., 175 Mass. 174 399 
 
 Sparks v. Citizens' Coach Co. (N. J. C. C), 6 N. J. L. J. 365 549 
 
 Spaulding v. Jarvis, 32 Hun (N. Y.), 621 341 
 
 Spellman v. Transit Co. (Nebr.), 85 N. W. 270 475 
 
 Spencer v. Chicago, M. & St. P. Ry. Co. (Wis.), 81 N. W. 407 519 
 
 Spencer v. Met. St. R. Co., 120 Mo. 154 144, 149 
 
 Spokane St. R. Co. v. Spokane Falls, 6 Wash. 521 133 
 
 Sprague v. 111. R. Co., 19 111. 174 39 
 
 Springfield v. Robberson Ave. R. Co., 69 Mo. App. 514 107 
 
 Springfield v. Smith, 138 Mo. 645 SQS 
 
 Springfield Consol. R. Co. v. Ankron, 93 111. App. 653 3iO 
 
 Springfield Consol. R. Co. v. Flynn, 55 111. App. 600 498 
 
 Springfield Consol. R. Co. v. Hoeffner, 175 111. 634 4^1 
 
 Spurrier v. Front St. Cable R. Co., 3 Wash. 659 310 
 
 Stabenau v. Atlantic Ave. R. Co., 155 N. Y. 511 301, 302 
 
 Stabenau v. Atlantic Ave. R. Co., 15 App. Div. (N. Y.) 408 301, 302 
 
 Stafford v. Chippewa Val. El. R. Co. (Wis.), 85 N. W. 1036. .. . 297, 306 
 
 323, 355 
 
 Stallknecht v. Penn. R. Co., 53 How. Pr. (N. Y.) 305 391 
 
 Stamford v. Stamford R. Co., 56 Conn. 381 10, 14, 131, 133, 245 
 
 Stange v. Dubuque, 62 Iowa, 303 , 31, 139 
 
 Stange v. Hill, etc., R. Co., 54 Iowa, 669 26, 31, 132 
 
 Stanley v. Davenport, 54 Iowa, 463 31 
 
 Stanley v. Union Depot R. Co., 114 Mo. 606 299 
 
 Star V. Camden & Atl. St. R., 4 Zabr. (N. J.) 592 143 
 
 Starr v. North St. Tract. Co., 193 Pa. St. 536 277 
 
 State V. Austin & N. W. R. Co. (Tex. Civ. App.), 62 S. W. 1050. .. . 582 
 
 State V. Bailey, 16 Ind. 46 173, 174 
 
 State V. Baltimore & O. R. Co., 48 Md. 49 575 
 
 State V. Bell, 34 Ohio St. 194 87 
 
 State V. Cincinnati & H., etc., Ry. Co., 19 Ohio C. C. 79 95, 179 
 
 State V. City of Cape May (N. J. Sup.), 6 Am. Electl. Cas. 4: 226 
 
 State V. Cockren, 25 La. Ann. 536 247 
 
 State V. Commissioners, 38 N. J. 472 40 
 
 State V. Corrigan, etc., Co., 85 Mo. 263, 275 26," 27 
 
 State V. County of Kings, 125 N. Y. 312 567 
 
 State V. Dayton Tract. Co., 18 Ohio C. C. 490 i, 3, 105 
 
 State V. Duluth Gas & W. Co., 76 Minn. 96 '. . .' 594 
 
TABLE OF CASES. Ixxxix 
 
 PAGE 
 
 State V. Edwards, 86 Me. io6 221 
 
 State V. Fagan, 22 La. Ann. 546 47 
 
 State V. Farrelley, 36 Mo. App. 282 163 
 
 State V. Grand Trunk Ry. Co., 58 Me. 176 496 
 
 State V. Hannibal & St. J. R. Co., 75 Mo. 208 574 
 
 State V. Herod, 29 Iowa, 123 233 
 
 State V. Jacksonville St. R. Co. (Fla.), 10 So. 590 266 
 
 State V. Jersey City (N. J. Sup.), 5 Am. Electl. Cas. 146 132 
 
 State V. Kansas Central R., 48 Kan. 506 221 
 
 State V. Lake Roland El. Ry. Co. (Md. Ct. App.), 6 Am. Electl. Cas. 
 
 412 484 
 
 State V. Laverack, 5 Vroom (N. J.), 206 134 
 
 State V. Louisville & N. R. Co. (Tenn.), 19 S. W. 229 131 
 
 State V. MacDonald, 7 Mo. App. 510 495 
 
 State V. Manchester & L. R. Co., 70 N. H. 421 594 
 
 State V. Mason City & Ft. D. R. Co., 85 Iowa, 516, 52 N. W. 490 . . . . 71 
 
 State V. Mayor, etc., of Hoboken, 30 N. J. L. 225 26 
 
 State V. Minnesota Thresher Mfg. Co., 40 Minn. 213 54 
 
 State V. Murphy, 134 Mo. 548 253 
 
 State V. New Orleans, etc., R. Co., 42 La. Ann. 138 266 
 
 State V. New Orleans City Pass. Ry. Co., 42 La. Ann. 550 266 
 
 State V. Newport St. R. Co., 16 R. I. 533 39, 240 
 
 State V. Ohio River R. Co., 38 W. Va. 242 131 
 
 State V. Paterson, etc., R. Co., 43 N. J. L. 505 266 
 
 State V. Person, 32 N. J. 134 41 
 
 State V. Pratt, 52 Minn. 131 323 
 
 State V. Railroad Co., 58 N. J. 666 140, 144 
 
 State V. Railway Co., 78 Minn. 331 115 
 
 State V. St. Paul City Ry. Co. (Minn.), 81 N. W. 200 115 
 
 State V. St. Paul, etc., Ry. Co., 35 Minn. 131 266 
 
 State V. St. Paul, etc., Ry. Co., 35 Minn. 224 46 
 
 State V. Sioux City, etc., R., 46 Nebr. 693 221 
 
 State V. South Penn. Oil Co., 42 W. Va. 80 567 
 
 State V. Street Comr., 71 Conn. 657 249 
 
 State V. Trenton, 36 N. J. L. 79 23, 24 
 
 State V. Whittaker, 160 Mo. 59 S38 
 
 State V. Yard, 10 Chic. Leg. N. go 39 
 
 State, etc., Co. v. City of Elizabeth (N. J.), 34 Atl. 146 49 
 
 State ex rel. Atty.-Gen. v. Madison St. Ry. Co., 72 Wis. 612 127 
 
 State ex rel. Bain v. Seaboard & R. Co., 52 Fed. 450 .S98 
 
 State ex rel. Bridgeton v. Bridgeton, etc., Co. (N. J. Sup.), 62 N. J. 
 
 L. S92 ^°7, 118, 121 
 
 State ex rel. Camden, etc., Co. v. Mansfield Comrs., 23 N. J. L. 510. 575 
 State ex rel. Cape May, etc., Co., Pros. v. City of Cape May (N. J. 
 
 Sup.), 6 Am. Electl. Cas. 49 207, 208, 309 
 
XC TABLE OF CASES. 
 
 TAGE 
 
 State ex rel. Carlton v. Dawson, 22 Ind. 272 112 
 
 State ex rel. Cent. R. Co. v. State Board of Assessors, 48 N. J. L. 7. 592 
 
 State ex rel. City of New Orleans v. King, 104 La. 735 174 
 
 State ex rel. Columbia El. St. Ry., etc., Co. v. Sloane (S. C. Sup. Ct.), 
 
 6 Am. Electl. Cas. 57 219 
 
 State ex rel. Co. v. City of Elizabeth, 58 N. J. L. 619, 34 Atl. 146 210 
 
 State ex rel. Cream City R. Co. v. Hilbert, 72 Wis. 184 596 
 
 State ex rel. Crowe v. Lindell R. Co., 151 Mo. 162 42, so 
 
 State ex rel. Crowe v. West Side St. R. Co., 146 Mo. 155 82 
 
 State ex rel. Duluth Belt R. Co. v. Eleventh Jud. Dist. Ct., 54 Minn. 
 
 34 594 
 
 State ex rel. Gas Light Co. v. Murphy (LIo.), S Am. Electl. Cas. 71. 252 
 
 State ex rel. Gottlieb v. Met. St. Ry. Co., 161 Mo. 188 584 
 
 State ex rel. Green, Pros. v. Trenton, 54 N. J. L. 92 138, 200 
 
 State ex rel. Grinsfelder v. Spokane St. Ry. Co., 19 Wash. 519.. ISS, 247 
 State ex rel. Halsey, Pros. v. Newark (N. J.), 4 Am. Electl. Cas. 40. 209 
 
 State ex rel. Henderson v. Bell, 34 Ohio St. 194 28, 66 
 
 State ex rel. Hoboken, etc., Co. v. State Board of Assessors, 62 N. J. 
 
 L. 561 580 
 
 State ex rel. Houck v. Louseur, 145 Mo. 322 173 
 
 State ex rel. Howe v. Des Moines, 103 Iowa, 76 569 
 
 State ex rel. Jacksonville v. Jacksonville St. R. Co., 29 Fla. 590. . 12, 136 
 State ex rel. Kansas City v. East Fifth St. R. Co., 140 Mo. 539. . 124, 570 
 
 State ex rel. Kansas City, etc., R. Co. v. Severance, 55 Mo. 378 575 
 
 'State ex rel. Kennelly v. Jersey City (N. J. Sup.), 26 L. R. A. 281.. 77 
 
 136, 210, 238 
 State ex rel. Lewis v. Cumberland Chosen Freeholders (N. J. Sup.), 
 
 28 Atl. SS3 74, 121 
 
 State ex rel. Lewis, Pros. v. Freeholders (N. J.), 4 Am. Electl. Cas. 
 
 48 201 
 
 State ex rel. Memphis v. Phoenix F. & M. Ins. Co., 91 Tenn. 566..?. 578 
 
 State ex rel. Milwaukee St. R. Co. v. Anderson, 90 Wis. 550 571, S92 
 
 State ex rel. Moors v. Haddonfield St. Comrs., 61 N. J. L. 470 76 
 
 State ex rel. Nat. Subway Co. v. St. Louis, 145 Mo. 551 252 
 
 State ex rel. New Orleans v. Canal & Claiborne St. R. Co., 44 La. 
 
 Ann. 526 263 
 
 State ex rel. New Orleans v. New Orleans Tract. Co., 48 La. Ann. 
 
 567 243 
 
 State ex rel. Nolin v. Montana R. Co., 21 Mont. 221 173 
 
 State ex rel. Omaha St. Ry. Co. v. Bechel, 22 Nebr. 158 18 
 
 State ex rel. Orange & N. H. R. Co. v. Douglas, 34 N. J. L, 82 573 
 
 State ex rel. Passaic Water Co. v. Patterson, 56 N. J. L. 471 592 
 
 State ex rel. Poe v. Jones, 51 Ohio St. 492 571 
 
 State ex rel. Roebling v. Trenton Pass. R. Co. (N. J.), 6 Am. Electl. 
 
 ^^^- ^37 134, 136, 204 
 
TABLE OF CASES. xci 
 
 State ex rel. St. Charles St. R. Co. v. Cockren, 25 La. Ann. 356. . 128, 130 
 
 State ex rel. St. Paul City v. Dist. Ct., 31 Minn. 354 581 
 
 State ex rel. Sharkey v. Lake Roland Elev. R. Co., 84 Md. 163 523 
 
 State ex rel. Spratt v. Chicago, etc., Ryr Co., 162 Mo. 391 584 
 
 State ex rel. Tillery v. Hannibal & St. J. R. Co., 97 Mo. 348 575 
 
 State ex rel. Thebereth v. Newark, 57 N. J. L. (28 Vroom) 309 238 
 
 State ex rel. Wilbur v. Trenton Pass. R. Co., 57 N. J. L. (28 Vroom) 
 
 212 172, 240 
 
 State ex rel. Wis. Tel. Co. v. Janesville St. Ry. Co., 87 Wis. 72. . 207, 289 
 
 Staten v. Savannah, F. & W. Ry. Co., iii Ga. 803 569 
 
 Staten I. M. R. Co. v. S. I. El. R. Co., 34 App. Div. (N. Y.) 181. . 75, 180 
 
 Steamboat Co. v. Brockett, 121 U. S. 637 539 
 
 Steeg V. St. Paul City R. Co. (Minn.), 16 L. R. A. 379 461 
 
 Steele v. Consol. Tract. Co., 30 Pittsb. L. J. (N. S.) 290 519 
 
 Steierle v. Union Ry. Co., 156 N. Y. 185 271, 417, 420 
 
 Steiner v. Phila. Tract. Co., 134 Pa. St. 199 329, 330 
 
 Stelk V. McNulta, 99 Fed. 138 266, 272, 297, 343 
 
 Sternberg v. State, 36 Nebr. 307 419 
 
 Stevens Co. v. Brooklyn H. R. Co., 59 App. Div. (N. Y.) 23 355 
 
 Stevenson v. Second Ave. R. Co., 35 App. Div. (N. Y.) 474 520 
 
 Stewart v. Brooklyn & C. R. Co., 90 N. Y. 588 492, 494 
 
 Stewart v. Long Isl. R. Co., 54 App. Div. (N. Y.) 623 565 
 
 Stewart v. Met. St. R. Co., 20 Misc. Rep. (N. Y.) 605 439 
 
 Stewart v. St. Paul City Ry. Co. (Minn.), 80 N. W. 854 485 
 
 Stiasmy v. Met. St. R. Co., 58 App. Div. (N. Y.) 172 308 
 
 Still v. Nassau El. R. Co., 32 App. Div. (N. Y.) 276 471 
 
 Stillwater & M. St. R. Co. v. M. & M. R., 67 App. Div. (N. Y.) 367. . 192 
 Stillwater & M. St. R. Co. v. Slade, 36 App. Div. (N. Y.) 587. .. . 164, 165 
 
 Stimson v. Milwaukee, etc., Ry. Co., 75 Wis. 381 467 
 
 Stone V. D. D., etc., Co., 115 N. Y. 109. 377, 527 
 
 Stone V. Farmers' L. & T. Co., 116 U. S. 325, 338 222, 435 
 
 Storrie v. Houston St. R. Co., 92 Tex. 129 213, 602 
 
 Storrs V. Los Angeles Tract. Co. (Cal.), 66 Pac. 72 559 
 
 Storrs V. Utica, 17 N. Y. 104 486 
 
 Story V. N. Y. Elev. R. Co., 90 N. Y. 122 103 
 
 Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 792 36 
 
 Strauss v. Newburgh E. R. Co., 6 App. Div. (N. Y.) 264 326 
 
 Street R. Co. v. Morrow, 87 Tenn. 806 580 
 
 Street R. Co. of Grand Rapids v. W. S. St. Ry. Co., 48 Mich. 433- ■• ■ 28 
 
 •> 114, 116 
 
 Strutzel V. St. Paul City R. Co., 47 Minn. 543 295 
 
 Suburban R. Co. v. Brauss, 70 Ga. 368 539 
 
 Suburban R. Co. v. Met. West Side El. R. Co., 61 N. E. 1090. 420 
 
 Suburban R. T. Co. v. Mayor, 128 N. Y. 510 38 
 
XCU TABLE OF CASES. 
 
 PAGe 
 Sulphur Springs, etc., R. Co. v. St. Louis, etc., R. Co., 2 Tex. Civ. 
 
 App. 650 - 45 
 
 Sullivan v. Jefferson Ave. R. Co., 133 Mo. i 495 
 
 Sullivan v. Met. St. R. Co., 53 App. Div. (N. Y.) 89 S37 
 
 Sullivan v. Oregon, etc., R. Co., 12 Oreg. 392 494 
 
 Sun Pub. Assn. v. Mayor, 152 N. Y. 257 3, 10, 122 
 
 Sutter v. Omnibus Cable Co., 107 Cal. 360 331 
 
 Sutton v. Louisville, 5 Dana (Ky.), 28 573 
 
 Sutton V. Wauwatosa, 29 Wis. 21 418 
 
 Swain V. Fourteenth St. R. Co., 93 Cal. 179 293, 321 
 
 Sweeney v. Kansas City Cable R. Co., 150 Mo. 385 476, 483, 510 
 
 Sweeney v. Railway Co., 150 Mo. 385 469 
 
 Sweeney v. Union Ry. Co., 64 N. Y. Supp. 453 463 
 
 Sweeney v. Union Ry. Co., 31 Misc. Rep. (N. Y.) 472 525 
 
 Sweeney v. Union Tract. Co., 199 Pa. St. 293 523 
 
 Sweetland v. Lynn & B. R. Co., 177 Mass. 574 43S, 472 
 
 Swift V. Staten Isl. R. T. Co., 123 N. Y. 645 377 
 
 Swisher v. Williams, Wright (Ohio), 754 418 
 
 Sydney Munic. Coun. v. Young, 78 L. T. Rep. 365 136 
 
 T. 
 Tacoma Ry. & Power Co. v. Hays (C. C. App., 9th C), no Fed. 
 
 496 36s 
 
 Taft v. Brooklyn H. R. Co., 14 Misc. Rep. (N. Y.) 390 47i 
 
 Taggart V. Newport St. R. Co., 16 R. L 668 5i> I35 
 
 Tallaher v. Crescent City R. Co., 37 La. Ann. 288 529 
 
 Tallman v. M. E. R. Co., 121 N. Y. 123 150 
 
 Tamaqua, etc., Co. v. Inter-Co. St. Ry. Co., 167 Pa. St. 91 76 
 
 Tampa v. Mugge, 40 Fla. 326 603 
 
 Tanger v. S. W. Mo. El. Ry. Co., 85 Mo. App. 28 493, 504 
 
 Tanner v. Buffalo Ry. Co., 72 Hun (N. Y.), 465 476, 525 
 
 Tarbell v. Central Pac. Ry. Co., 34 Cal. 616 477 
 
 Tarler v. Met. St. Ry. Co., 21 Misc. Rep. (N. Y.) 684 299 
 
 Tashjian v. Worcester Conn. St. Ry. Co., 177 Mass. 75 294 
 
 Tate v. Buffalo Ry. Co., 55 App. Div. (N. Y.) 507 383, 406 
 
 Tatum V. Sharpless, 6 Phila. (Pa.) 18 506 
 
 Taylor v. Bay City Ry. Co., loi Mich. 140 152 
 
 Taylor V. Bay City Ry. Co., 80 Mich, yy 20, 153 
 
 Taylor v. Bay City Ry. Co. (Mich.), 47 N. W. 335 42 
 
 Taylor v. Bay City Ry. Co. (Mich.), 43 Am. & Eng. R. Cas. 335 20 
 
 Taylor v. Carew Mfg. Co., 143 Mass. 470 544 
 
 Taylor v. D. D., etc., R. Co., 9 St. Rep. (N. Y.) 498 549 
 
 Taylor v. Erie City Pass. R. Co., 186 Pa. St. 120 138 
 
 Taylor v. Grand Ave. R. Co., 137 Mo. 363 336, 337 
 
TABLE OF CASES. xciii 
 
 PAGE 
 
 Taylor v. Grand Trunk R. Co., 48 N. H. 304 495 
 
 Taylor v. Louisville & N. R. Co., 88 Fed. 350 572 
 
 Taylor v. Nassau El. R. Co., 32 App. Div. (N. Y.) 486 491 
 
 Taylor v. N. Y. C, etc., R. Co., 63 App. Div. (N. Y.) 586 552 
 
 Taylor v. Portsmouth, etc., R. Co., 91 Me. 193 18, 136, 139 
 
 Taylor v. Pa. Co. (C. C. N. D., Ohio), 50 Fed. 755 467 
 
 Taylor v. So. Covington & C. St. R. Co., 14 Ky. L. Rep. 355 488 
 
 Teachout v. Des Moines B. R. Co., 75 Iowa, 732 116 
 
 Tedford v. Los Angeles El. Co. (Cal.), 66 Pac. 76 559 
 
 Telephone Co. v. Baltimore, 89 Md. 689 249 
 
 Telephone Co. v. Minneapolis, 81 Minn. 140 249 
 
 Terre Haute El. R. Co. v. Lauer, 21 Ind. App. 466 471 
 
 Terre Haute El. R. Co. v. Yant, 21 Ind. App. 486 330 
 
 Terre Haute & I. R. Co. v. Sherwood, 132 Ind. 129 445 
 
 Tesch v. Milwaukee El. Ry. Co., 108 Wis., 593 346, 368, 385 
 
 Texarkana St. R. Co. v. Hart (Tex. Civ. App.), 26 S. W. 43s 513 
 
 Texas, etc., Ry. Co. v. Orr, 46 Ark. 194 545 
 
 Texas & P. R. Co. v. Buckalew (Tex. Civ. App.), 34 S. W. 165 431 
 
 Texas & P. R. Co. v. Edmond (Tex. Civ. App.), 29 S. W. 518 503 
 
 Texas & P. R. Co. v. McLane, 2 Am. & Eng. R. Cas. (N. S.) 263. . 426 
 
 Texas & P. R. Co. v. Orr (Tex. Civ. App.), 31 S. W. 696 415 
 
 Texas & P. R. Co. Overall, 82 Tex. 247 521, 525 
 
 Texas & P. R. Co. v. Rosedale R. Co., 64 Tex. 80 12, 26 
 
 Texas & P. R. Co. v. Tott, 20 Tex. Civ. App. 335 492 
 
 Texas & P. R. Co. v. Williams (C. C. App., sth C), 10 C. C. A. 463. . 497 
 
 Thane v. Scranton Tract. Co., 191 Pa. St. 249 473 
 
 Thatcher v. Central Tract. Co., 166 Pa. St. 66 361 
 
 "The Amiable Nancy," 16 U. S. (3 Wheat.) 546 494 
 
 The Trustees of the Presbyterian Society in Watertown v. The Au- 
 burn & Rochester R. Co., 3 Hill (N. Y.), 567 14S 
 
 Tholan v. Brooklyn City R. Co., 10 Misc. Rep. (N. Y.) 283 403 
 
 Thomas v. Gay, 169 U. S. 264 568 
 
 Thomas v. Inter-Co. St. Ry. Co., S Am. Electl. Cas. 17S ^(>, 132 
 
 Thomas v. Railroad Co., loi U. S. (11 Otto), 71 118, 119 
 
 Thomas v. St. Louis, etc., R. Co., 164 111. 634 160 
 
 Thomas v. Tract. Co., 62 N. J. L. 36 277 
 
 Thompson v. B. R. Co., 145 N. Y. 196 376 
 
 Thompson v. Duncan, 70 Ala. 334 545 
 
 Thompson v. Flint & P. M. R. Co., 57 Mich. 300 272 
 
 Thompson v. N. Y. C, no N. Y. 637 367 
 
 Thompson v. Salt Lake R. T. Co., 16 Utah, 281 270, 279 
 
 Thompson v. United Tract. Co., 193 Pa. St. 555 406 
 
 Thompson-Houston El. Co. v. Simon, 20 Oreg. 60 i 
 
 Thoresen v. La Crosse City R. Co., 87 Wis. S97 295 
 
 Thoresen v. La Crosse City R. Co., 94 Wis. 129 344 
 
XCIV TABLE OF CASES. 
 
 Thorsell v. Chicago City R. Co., 82 111. App. 375 372 
 
 Thouron v. Railway Co. (Pa.), 6 Am. Electl. Cas. 150 133 
 
 Throop V. Hatch, 3 Abb. Pr. (N. Y.) 23 391 
 
 "Tibbetts v. West & S. T. St. R. Co., 153 M- I47 64, 78 
 
 Tiedeman v. S. I. M. R. Co., 18 App. Div. (N. Y.) 368 80 
 
 Tischacek v. Milwaukee El., etc., Co. (Wis.), 85 N. W. 971 301 
 
 Todd V. Second Ave. Tract. Co., 192 Pa. St. 5S7 273 
 
 Toledo Consol. St. R. Co. v. Fuller, 9 Ohio C. D. 123. 450 
 
 Toledo Consol. St. R. Co. v. Lutterbeck, 11 Ohio C. C. 279 527 
 
 Toledo Consol. St. R. Co. v. Rohner (Ohio C. C), 6 O. C. D. 706. . 326 
 Toledo El. St. Ry. Co. v. Toledo N. V. Ry. Co., 7 Ohio N. P. 211. . 179 
 
 Toledo, etc., R. Co. v. Toledo El. St. R. Cc, 6 Ohio C. C. 362 166 
 
 Toledo, etc., R. Co. v. Toledo El. St. R. Co., 12 Ohio C. C. 367.... 182 
 
 Toledo, etc., R. Co. v. Westenhuber, 22 Ohio C. C. 67 299 
 
 Toledo, etc., R. Co. v. Munson, S7 Mich. 42 163 
 
 Toledo, etc., R. Co. v. Toledo El. St. R. Co., 6 Ohio C. C. 362 166 
 
 Toledo, W. & W. R. Co. v. Jacksonville, 67 111. Z7 207 
 
 Tolman v. Syracuse, etc., R. Co., 98 N. Y. 198 544 
 
 Tompkins v. Clay St. Ry. Co., (£ Cal. 163 312 
 
 Tompkins v. Scranton Tract. Co., 3 Pa. Super. Ct. 576 325 
 
 Toomey v. D., L. & W. R. Co., 24 N. Y. Supp. 108 479 
 
 Topeka City R. Co. v. Higgs, 38 Kan. 375 414 
 
 Topeka Paper Co. v. Oklahoma Pub. Co., 7 Okla. 220 173 
 
 Toronto v. Toronto St. Ry. Co. (Can.), 15 Ont. App. 30 220 
 
 Toronto St. Ry. Co. v. Fleming, 37 Up. Can. Q. B. 116 581 
 
 Totarella v. N. Y. & Q. C. Ry. Co., 53 App. Div. (N. Y.) 413 384 
 
 Tower v. Tower & S. St. R. Co., 68 Minn. 500 130 
 
 Towner v. Brooklyn H. R. Co., 44 App. Div. (N. Y.) 628 313 
 
 Town of Lysander v. Syracuse, etc., R. Co., 31 Misc. Rep. (N. Y.) 
 
 ^ ^•3° 74, 159, 19s 
 
 Town of Wheatfields v. Tonawanda St. R. Co., 92 Hun (N. Y.), 460. . 74 
 Township of Hamtranck v. Rapid Ry. Co. (Mich.), 81 N. W. 337. . 91, 112 
 
 Townsend v. Binghamton, 57 App. Div. (N. Y.) 234 473 
 
 Townsend v. N. Y. C, etc., R. Co., 56 N. Y. 296 444, 491 
 
 Traction Co. v. Chenowith, 61 N. J. L. 554 293 
 
 Traction Co. v. Scott, 58 N. J. L. 682 .".'!.".. 293 
 
 Traver V. Spokane St. R. Co. (Wash.), 65 Pac. 284. .... 320,' 365, 370, 409 
 
 Traverse Co. v. St. Paul, M. & N. R. Co., 73 Minn. 417 594 
 
 Trenton v. Trenton H. R. Co. (N. J. Sup.), 19 Atl. 263 ! . " m 
 
 Trenton v. Trenton Pass. Ry. Co. (N. J. Ch.), 27 Atl. 483 219 
 
 Trenton Cut-of5f R. Co. v. Newton, etc., Ry. Co., 8 Pa. Dist 549 155 
 
 Trenton H. R. Co. v. City of Trenton, S3 N. J. L. 132 207, 220, 227 
 
 Trenton Pass. R. Co. v. Cooper, 60 N. J. L. 219 284 
 
 Trenton Pass. R. Co. v. Wilson, 55 N. J. Eq. 273. 174 
 
 Trenton St. Ry. Co. v. Penn. R. Co., 24 N. J. L. J. 595' 95 97 
 
TABLE OF CASES. ,: XCV 
 
 FACE 
 
 Trenton St. Ry. Co. v. Penn. R. Co. (N. J.), 49 Atl. 481 95 
 
 Trenton St. Ry. Co. v. United N. J. R. & C. Co. (N. J.), 46 Atl. 763. . 189 
 
 Trenton Water Power Co. v. Rath, 7 Vroom (N. J.), 335 143 
 
 Trester v. Mo. P. R. Co., 33 Nebr. 171 164 
 
 Tri-City Ry. Co. v. Killeen, 92 111. App. 57 285 
 
 Trotier v. St. Louis, etc., Ry. Co., 180 111. 471 166 
 
 Trout V. Altoona & L. V. El. Co., 13 Pa. Super. Ct. 17 365, 369 
 
 Trowbridge v. Dewville St. R. Co. (Va.), 19 S. E. 780 364 
 
 Trumbo v. City St. Car Co., 89 Va. 780 324 
 
 Trumbull v. Erickson (U. S. C. C. A., Colo.), 38 C. C. A. 536 471 
 
 Trumbull v. Erickson (U. S. C. C. A., Colo.), 97 Fed. 891 532 
 
 Trussell v. Union Tract. Co., 31 Pittsb. L. J. (N. S.) is 299 
 
 Trustees of East Hampton v. Vail, 151 N. Y. 463 36 
 
 Trustees, etc. v. Board of Subway Comrs. (N. J.), 4 Am. Electl. Cas. 
 
 135 26 
 
 Tucker v. Buffalo R. Co., 53 App. Div. (N. Y.) 571 525 
 
 Tucker v. N. Y. C, etc., R. Co., 124 N. Y. 308 ^^^, 487 
 
 Tuff V. Warman, 5 C. B. (N. S.) 573 • S2i 
 
 Turnpike Co. v. Jenkintown El. R. Co., 4 Pa. Dist. 8 45, 193 
 
 Twaddell v. Chester Tract. Co. (Pa. C. P.), 6 Del. Co. Rep. 399 in 
 
 Twomley v. Central Park, etc., R. Co., 69 N. Y. 158 512, 514 
 
 Tyler v. Third Ave. R. Co., 18 Misc. Rep. (N. Y.) 165 338 
 
 Tyson v. Union Tract. Co. (Pa.), 48 Atl. 1078 357 
 
 U. 
 
 Uggla V. West End St. Ry. Co., 160 Mass. 351 279, 291, 382 
 
 Uline V. N. Y. C. & H. R. R. Co., loi N. Y. 98 150 
 
 Ulrich V. Toledo Consol St. R. Co., i O. C. D. in ■ • . 389 
 
 Unger v. Forty-second St., etc., Ry. Co., 51 N. Y. 497 271, 416 
 
 Union Bridge v. Teehan, 92 111. App. 259 564 
 
 Union City R. Co. v. Saginaw, 113 Mich. 694 130 
 
 Union Ins. Co. v. Smith, 124 U. S. 424 55° 
 
 Union Pac. R. Co. v. Mitchell, 56 Kan. 324 502 
 
 Union Pass. Ry. Co. v. Philadelphia, loi U. S. (n Otto) 528.... 573, 597 
 
 Union R. Co. v. Mayor, 11 Allen (Mass.), 287 230 
 
 Union R. Co. v. Phila., etc., Co. (Pa.), 6 Del. Co. Rep. 490 47 
 
 Union St. R. Co. v. Snow, 113 Mich. 694 126 
 
 Union Terminal R. Co. v. Kansas City Belt R. Co., 9 Kan. App. 281. 164 
 
 Union Tract. Co. v. WaterVliet, 35 Misc. Rep. (N. Y.) 392 328 
 
 United E. Ry. Co. v. Shelton, 89 Tenn. 423 292 
 
 United Lines Tel. Co. v. Grant, 137 N. Y. 7 253 
 
 United Ry. & El. Co. v. Hayes (Md.), 48 Atl. 364 258 
 
 United Ry. & El. Co. v. Seymour (Md.), 48 Atl. 850 325 
 
 United Ry. & El. Co. v. State (Md.), 49 Atl. 923 499 
 
XCVl TABLE OF CASES. 
 
 PAGE 
 
 United States v. Gettysburg EI. Ry. Co., i6o U. S. 668 r.62 
 
 United States v. Jones, 109 U. S. 513 161, 163 
 
 United States Capsule Co. v. Isaacs, 23 Ind. App. 533 170 
 
 United States El. P. & L. Co. v. State, 79 Md. 63 594 
 
 United States 111. Co. v. Hess, 19 St. Rep. (N. Y.) 883 253 
 
 Upham V. Detroit Citizens' R. Co., 85 Mich. 12 472 
 
 Urquhart v. City of Ogdensburg, 23 Hun (N. Y.), 75 390 
 
 V. 
 
 Vadney v. Albany Ry. Co., 47 App. Div. (N. Y.) 207 503 
 
 Vair V. Broadway R. Co., 147 N. Y. Z71 472, 473, 515 
 
 Valentine v. Middlesex R. Co., 137 Mass. 28 422 
 
 Vanceburg & S. L. Tp. R. Co. v. Maysville & B. S. R. Co., 63 S. W. 
 
 749 603 
 
 Vanderhurst v. Tholcke, 113 Cal. 147 142 
 
 Van Hook v. Selma, 70 Atl. 361 207 
 
 Van Horn v. Newark Pass. R. Co., 48 N. J. Eq. 332 136, 245 
 
 Van Patten v. Schenectady St. R. Co., 80 Hun (N. Y.), 494 293, 339 
 
 Van Winkle v. Brooklyn City R. Co., 46 Hun (N. Y.), 565 467 
 
 Vasele v. Grant St. El. R. Co., 16 Wash. 602 485 
 
 Vedder v. Fellows, 20 N. Y. 126 435 
 
 Vermont C. R. Co. v. Burlington, 28 Vt. 193 575 
 
 Vermont & C. R. Co. v. Vt. C. R. Co. (Vt.), 10 L. R. A. 50 594 
 
 Vermont, etc., R. Co. v. Vt. C. R. Co., 34 Vt. i 45 
 
 Vicksburg v. Hennessy, S4 Miss. 391 544 
 
 Vicksburg & M. R. Co. v. O'Brien, 119 U. S. 99 550 
 
 Vicksburg, R. P. & M. Co. v. Marlett (Miss.), 29 So. 62 441 
 
 Vicksburg, S. & P. R. Co. v. Dennis, 116 U. S. 665 573 
 
 Village of Carthage v. Frederick, 122 N. Y. 268 229 
 
 Village of Mechanicsville v. S. & M. St. Ry. Co., 35 Misc. Rep. (N. Y.) 
 
 S13 258 
 
 Vincent v. Norton & T. St. Ry. Co. (Mass.), 61 N. E. 822 512 
 
 Vining v. Detroit, Y. & A. A. Ry. (Mich.), 80 N. W. 1080 441 
 
 Vinton v. Middlesex R. Co., 11 Allen (Mass.), 304 449, 503 
 
 Vitelli V. Nassau El. R. Co., 53 App. Div. (N. Y.) 639 297 
 
 Vonelling v. Met. St. R. Co., 35 Misc. Rep. (N. Y.) 301 367 
 
 Vose V. Newport St. R. Co., 17 R. I. 134 166 
 
 Vroman v. Houston, W. S. & P. Ferry R. Co., 7 Misc. Rep. (N. Y.) 
 
 234 476 
 
 W. 
 
 Wabash R. Co. v. Defiance, 167 U. S. 88 55 
 
 Waechter v. Second Ave. Tract. Co., 198 Pa. St. 129 330 
 
 Wachtel v. E. St. Louis, etc., R. Co., "jy 111. App. 465 328 
 
TABLE OF CASES. XCVll 
 
 fAGE 
 
 Wager v. Troy Union R. Co., 25 N. Y. 526 145 
 
 Wagner v. Atchison, etc., R. Co. (Kan. App.), 58 Pac. 1018 171 
 
 Wagner v. Brooklyn H. R. Co., 69 App. Div. (N. Y.) 349 535 
 
 Wagoner v. Evans, 170 U. S. 588 569 
 
 Wahl V. Shoulders, 14 Ind. App. 665 540 
 
 Wakefield v. So. Boston R. Co., 117 Mass. 544 443 
 
 Wakeman v. Wilbur, 147 N. Y. 657 245 
 
 Walker v. Denver, 22 C. C. A., 8th C. 470 240 
 
 Walker v. St. Paul City R. Co., 81 Minn. 404 326, 359, 39S 
 
 Wall v. Helena St. R. Co., 12 Mont. 44 307 
 
 Wallace v. Ann Arbor El. St. Ry. Co. (Mich.), 80 N. W. 572 lii 
 
 Wallace v. City & S. R. Co., 26 Oreg. 174 303, 314, 374 
 
 Wallace v. Detroit City R. Co., 58 Mich. 231 231, 276 
 
 Wallace v. Third Ave. R. Co., 36 App. Div. (N. Y.) 57 446, 463, 523 
 
 Wallamet Falls, etc., Co. v. Kittridge, 5 Sawy. (U. S.) 44 44 
 
 Wallbridge v. Railway Co., 190 Pa. St. 274 277 
 
 Wallen v. North Chicago St. R. Co., 82 111. App. 103 313, 370 
 
 Walls V. Rochester R. Co., 92 Hun (N. Y.), 581 380 
 
 V/alpoIe V. Elliott, 18 Ind. ?s8 31 
 
 Walsh V. Atlantic Ave. R. Co., 23 App. Div. (N. Y.) 19 319, 324 
 
 Walsh V. Hestonville, M. & F. Pass. R. Co., 194 Pa. St. S70 354 
 
 Walter v. Town of Union, 53 N. J. L. 350 31 
 
 Walters v. Collins, P. & B. R. Co., 95 Ga. 519 5I5 
 
 Walters v. Phila. Tract. Co., 161 Pa. St. 36 454 
 
 Walters v. Syracuse R. T. R. Co., 64 App. Div. (N. Y.) 150 383 
 
 Walton V. Chattanooga R. T. Co., 105 Tenn. 415 565 
 
 Wanzer v. Chippewa Val. El. R. Co., 108 Wis. 319 4i6, Si3 
 
 Ward V. Central Park, etc., R. Co., 11 Abb Pr. N. S. (N. Y.) 411- 470, 474 
 
 Warfield v. Louisville N. R. Co. (Tenn.), 55 S. W. 304 478, 501 
 
 Warren v. Bangor, etc., Ry. Co., 95 Me. 115 367 
 
 Warren v. Manchester St. Ry. Co. (N. H.), 47 Atl. 73S 278, 299 
 
 Warren v. Mendenhall, 77 Minn. 145 314 
 
 V/arren v. Union Ry. Co., 46 App. Div. (N. Y.) Si7 294, 345, 385 
 
 Washington v. Spokane St. Ry. Co., 13 Wash. 9 430 
 
 V.'ashington, A. & Mt. V. Co. v. Quayle, 95 Va. 741 487 
 
 VVashington & B. Tp. Co. v. Maryland, 70 U. S. (3 Wall.l 210 34 
 
 Washington & G. R. Co. v. Gladmon, 15 Wall. (U. S.) 401.... 529, 544 
 
 Washington & G. R. Co. v. Grant, 11 App. D. C. 107 480 
 
 Washington & G. R. Co. v. Hickey (App. D. C), 23 Wash. L. Rep. 
 
 177 • 5^4 
 
 Washington & G. R. Co. v. Tobriner, 147 U. S. 57i 481 
 
 Washington & G. R. Co. v. Wright, 7 App. D. C. 29s 347 
 
 Waterloo v. Waterloo St. R. Co., 71 Iowa, 193 220 
 
 Watermolen v. Fox River El. R. & P. Co. (Wis.), 85 N. W. 663. .. . 385 
 vii 
 
XCVlll TABLE OF CASES. 
 
 PAGE 
 
 Watkins v. Atlantic Ave. R. Co., 20 Hun (N. Y.), 237 S09 
 
 Watkins v. El. Co. (Ala.), 24 So. 392. 475. 483 
 
 Watkins v. Union Tract. Co., 194 Pa. St. 564 355 
 
 Watson V. Brooklyn City R. Co., 14 Misc. Rep. (N. Y.) 405 364 
 
 Watson V. Minneapolis St. R. Co., 53 Minn. 551 293, 325 
 
 Watson V. Oswego St. R. Co., 7 Misc. Rep. (N. Y.) 562 505, 531 
 
 Watson V. Portland & C. E. R. Co., 91 Me. 584 470 
 
 Watson V. Robertson Ave. R. Co., 69 Mo. App. 548 63 
 
 Wead V. St. Johnsburg & L. C. R. Co. (Vt.), 24 Atl. 361 140 
 
 Webb V. Chicago City Ry. Co., 83 111. App. 565 383 
 
 Webber v. Herkimer & M. St. R. Co., 35 Hun (N. Y.), 44 539 
 
 Weber v. Brooklyn, Q. C. & S. R. Cc , 47 App. Div. (N. Y.) 306. . 503 
 
 Weber v. Met. St. R. Co., 22 App. Div. (N. Y.) 628 428 
 
 Weber v. New Orleans C. R. Co., 104 La. 367 459 
 
 Weed v. C. C. of Binghamton, 26 Misc. Rep. (N. Y.) 208, 71 St. Rep. 
 
 (N. Y.) 282 255 
 
 Weeks v. New Orleans, etc., R. Co., 32 La. Ann. 615 533 
 
 Weingarten v. Met. St. Ry. Co., 62 App. Div. (N. Y.) 364 351, 563 
 
 Weinstein v. Frank, 30 App. Div. (N. Y.) 275 393 
 
 Weir v. Norman, 166 U. S. 171 572 
 
 Weiss V. Met. St. Ry. Co., 33 App. Div. (N. Y.) 221 378 
 
 Weiss V. Met. St. Ry. Co., 29 Misc. Rep. (N. Y.) 332 480 
 
 Weitzman v. Nassau El. St. Ry. Co., 33 App. Div. (N. Y.) 585 386 
 
 Wellman v. Chicago, etc., Ry. Co., 83 Mich. 611 221 
 
 Wells V. Brooklyn City R. Co., 58 Hun (N. Y.), 389 293, 298 
 
 Wells V. Brooklyn H. R. Co., 34 Misc. Rep. (N. Y.) 44 274, 353 
 
 Wells V. N. Y., etc., R. Co., 25 App. Div. (N. Y.) 365 455 
 
 Wells V. Steinway R. Co., 18 App. Div. (N. Y.) 180 426, 450, 485 
 
 Welty V. Indianapolis & V. R. Co., 105 Ind. 55 S33 
 
 Werle v. Long Isl. R. Co.. 98 N. Y. 650 549 
 
 Werner v. Citizens' Ry. Co., 81 Mo. 368 533 
 
 West Camden R. Co. v. Camden, etc., R. Co., 29 Atl. 423 136 
 
 West Chicago St. R. Co. v. Allen, 82 III. App. 128 304 
 
 West Chicago St. R. Co. v. Annis, 62 111. App. 180 336 
 
 West Chicago St. R. Co. v. Binder, 51 111. App. 420 429 
 
 West Chicago St. R. Co. v. Bocker, 70 111. App. 67 370 
 
 West Chicago St. R. Co. v. Dedloff, 92 111. App. 547 315, 390 
 
 West Chicago St. R. Co. v. Dougherty, 89 111. App. 362 318, 354 
 
 West Chicago St. R. Co. v. Huhnke, 82 111. App. 404 370 
 
 West Chicago St. R. Co. v. James, 69 111. App. 609 462 
 
 West Chicago St. R. Co. v. Johnson, 180 111. 285 428, 453 
 
 West Chicago St. R. Co. v. Kautz, 89 111. App. 309 391, 396, 408 
 
 West Chicago St. R. Co. v. Klecka, 94 111. App. 346 342 
 
 West Chicago St. R. Co. v. Kromshinsky, 185 111. 92 414 
 
 West Chicago St. R. Co. v. Lidemann, 87 111. App. 638 379 
 
TABLE OF CASES. xcix 
 
 PAGE 
 
 West Chicago St. R. Co. v. Lyons, 57 111. App. 536 514 
 
 West Chicago St. R. Co. v. Maday, 88 111. App. 49 319 
 
 West Chicago St. R. Co. v. Manning, 170 111. 417 417, 481, 483 
 
 West Chicago St. R. Co. v. Marks, 82 111 App. 285 464, 472 
 
 West Chicago St. R. Co. v. Marks, 182 111. 15 475, 540 
 
 West Chicago St. R. Co. v. Martin, 47 111. App. 610 510 
 
 West Chicago St. R. Co. v. McCallum, 169 111. 240 299 
 
 West Chicago St. R. Co. v. McNulty, 166 111. 203 522 
 
 West Chicago St. R. Co. v. Nelson, 70 111. App. 171 315, 366 
 
 West Chicago St. R. Co. v. O'Connor, 85 111. App. 278 231 
 
 West Chicago St. R. Co. v. Ranstead, 70 111. App. iii 380 
 
 West Chicago St. R. Co. v. Schwartz, 93 111. App. 387 320, 374 
 
 West Chicago St. R. Co. v. Scanlon, 68 111. App. 626 378 
 
 West Chicago St. R. Co. v. Shiplett, 85 III. App. 683 406, 446 
 
 West Chicago St. R. Co. v. Stephens, 66 111. App. 303 421 
 
 West Chicago St. R. Co. v. Stiver, 69 111. App. 625 476, 481 
 
 West Chicago St. R. Co. v. Sullivan, 165 111. 302 281 
 
 West Chicago St. R. Co. v. Tuerk, 90 111. App. 105 509, 512 
 
 West Chicago St. R. Co. v. Waniata, 68 III. App. 481 480 
 
 West Chicago St. R. Co. v. Williams, 87 111. App. 548 293, 509 
 
 West Chicago St. R. Co. v. Wizeman, 83 111. App. 402 273 
 
 West Chicago St. R. Co. v. Yund, 68 111. App. 609 271, 337 
 
 West End, etc., R. Co. v. Atlantic St. R. Co., 49 Ga. 151 36, 240 
 
 Westerfield v. Levis, 43 La. Ann. 63 529 
 
 Western & A. R. Co. v. State, 54 Ga. 428 575 
 
 Western N. Y. & P. R. Co. v. Venango Co., 183 Pa. St. 618 581 
 
 Western P. & S. Co. v. Citizens' St. Ry. Co. (Ind.) 26 N. E. 188... 112 
 
 123, 258 
 
 Western U. T. Co. v. Eyser, 2 Colo. 154 545 
 
 Western U. T. Co. v. Miss. R. Comrs., 74 Miss. 80 71 
 
 Western U. T. Co. v. New York, 38 Fed. 552 253 
 
 Western U. T. Co. v. Norman, yy Fed. 13 '. 572 
 
 Western U. T. Co. v. Phila. (Pa. Sup.), 12 Atl. 144 207 
 
 Western U. T. Co. v. Poe (C. C. S. D., Ohio), 61 Fed. 449 572 
 
 Western U. T. Co. v. State, Nelson, 82 Md. 293 270 
 
 Western U. T. Co. v. Syracuse, 24 Misc. Rep. (N. Y.) 338 252 
 
 Western U. T. Co. v. Taggart, 141 Ind. 281 592 
 
 Western U. T. Co. v. Thome, 28 U. S. App. 123 292 
 
 West Jersey R4 Co. v. Camden, etc., Ry. Co., 52 N. J. Eq. 452 91 
 
 143. 334 
 West Jersey Tract. Co. v. Camden H. R. Co., 53 N. J. Eq. 163. . 61, 64 
 
 yT, 96, 114, 243 
 
 West Jersey Tract. Co. v. Shivers, 58 N. J. L. (29 Vroom), 124 76 
 
 West Penn. Co.'s App., 99 Pa. St. 155 38 
 
 West Phila. Pass. Ry. Co. v. Phila., 10 Phila. (Pa.) 70 241 
 
TABLE OF CASES. 
 
 PACE 
 
 West Phila. Pass. Ry. Co. v. Phila, etc., Tp. R. Co., i86 Pa. St. 4S9- • 63 
 West Phila. Pass. Ry. Co. v. Phila, etc., Tp. R. Co., 6 Pa. Dist. 169. . 197 
 
 Wheelahan v. Phila. Tract. Co., 150 Pa. St. 187 367 
 
 Wheeler v. Detroit El. Ry. Co. (Mich.), 87 N. W. 886 40S 
 
 Wheeler v. Pa. R. Co., 194 Pa. St. 539 I33 
 
 White V. Albany Ry., 35 App. Div. (N. Y.) 23 303, 325 
 
 White V. Atlanta Consol. R. Co., 92 Ga. 494 460 
 
 White V. Northwestern N. C. R. Co., 113 N. C. 610 144 
 
 White V. Twenty-third St. R. Co., 20 Week. Dig. (N. Y.) 510 507 
 
 White V. Worcester Consol. St. R. Co. (Mass.), 6 Am. Electl. Cas. 
 
 498 340 
 
 White Mts. R. Co. v. White Mts. R. Co., 50 N. H. 50 46 
 
 Whitesell v. N. J. H. R. R. & F. Co., 68 App. Div. (N. Y.) 82 392 
 
 Whiting V. N. Baltimore (Mich.), 86 N. W. 403 106 
 
 Whittaker v. D. & H. R. Co., 126 N. Y. S44 537 
 
 Whittaker v. Eighth Ave. R. Co., 51 N. Y. 295 550 
 
 Wiard v. Syracuse R. T. Co., 52 App. Div. (N. Y.) 635 365 
 
 Wiczinski v. Am. Sugar Ref. Co. (N. J. Sup.), 49 Atl. 530 564 
 
 Wiggins Ferry Co. v. E. St. Louis Ry. Co., 107 111. 450 102 
 
 Wihnyk v. Second Ave. R. Co., 14 App. Div. (N. Y.) 515 313, 347 
 
 Wilbur V. Trenton Pass. R. Co., 57 N. J. L. 212 240 
 
 Wilcox V. Wilmington City Ry. Co. (Del. Super.), 2 Pennewill, 157. . 400 
 
 Wilde V. Lynn & B. R. Co., 163 Mass. 533 470 
 
 Wilder v. Met. St. R. Co., 10 App. Div. (N. Y.) 364 318 
 
 Wilds V. H. R. R. Co., 24 N. Y. 430 545 
 
 Wiley V. Smith, 25 App. Div. (N. Y.) 351 275 
 
 Wilkes-Barre v. Coalville Pass. Ry. Co. (Pa. C. P.), 8 Kulp, 298.... 109 
 
 120, 244 
 
 Will v. Edison El. 111. Co. (Pa. Sup.), 7 Am. Electl. Cas. 642 284 
 
 Will V. West Side R. Co., 84 Wis. 42 301 
 
 Willamette Iron Works Co. v. Oreg. R. & Nav. Co., 26 Oreg. 224. . 144 
 
 Williams v. City El. St. .Ry. Co., 41 Fed. 556 2, 135 
 
 Williams v. Duanesburgh, 66 N. Y. 129 30 
 
 Williams v. Egelston, 170 U. S. 304 29 
 
 Williams V. N. Y. C. & H. R. R. Co., 16 N. Y. 97 25, 145, 149, 151 
 
 \Villlams V. N. Y. C. R. Co., 25 N. Y. 533 146 
 
 Williams v. Railroad Co., 18 Utah, 210 445 
 
 Williamson v. Cambridge R. Co., 144 Mass. 148 550 
 
 V/illiamson v. Gordon H. R. Co., 40 Atl. 933 : tcq 
 
 Williamson v. Met. St. Ry. Co., 29 Misc. Rep. (N. Y.) 324 296, 362 
 
 Willis v. Erie City Pass. R. Co., 188 Pa. St. 56 155' 242 
 
 Willis V. Met. St. Ry. Co., 63 App. Div. (N. Y.) 332 482', 552 
 
 Willmot V. Corrigan Consol. St. R. Co., 106 Mo. 535 472 521 
 
 Wills V. Ashland, L. P. & St. Ry. Co., 108 Wis. 255 299, 303,' 376 
 
 Willson V. Rock Creek R. Co., 72 Inters. Com. Rep. 83 '.....' 420 
 
TABLE OF CASES. CI 
 
 PAGE 
 
 Wilmington City Ry. Co. v. Peoples' R. Co. (Del. Ch.), 47 Atl. 245.. 38 
 
 IIS 
 Wilmington City R;'. Co. v. Wilmington, etc., Co. (Del. Ch.), 46 Atl. 
 
 12 41, 48, 113, IIS, 127, 201, 280 
 
 Wilmington & R. Co. v. Reid, 13 Wall. (80 U. S.) 264 33, 575 
 
 Wilmington & W. R. Co. v. Alsbrook, 146 U. S. 279 573, 574 
 
 Wilson V. Duluth St. Ry. Co., 64 Minn. 363 323 
 
 Wilson V. Memphis St. Ry. Co., 105 Tenn. 74 300, 370, 409 
 
 Wilson V. Simmons, 89 Me. 242 142 
 
 Winch V. Railroad Co., 13 L. & Eq. 506 119 
 
 Windover v. Troy City Ry. Co., 4 App. Div. (N. Y.) 202 536 
 
 Winnebago Furniture Mfg. Co. v. Wis. M. R. Co. (Wis.), 51 N. W. 
 
 576 164 
 
 Winnipeg v. Can. Pac. R. Co. (Can.), 12 Man. Rep. 581 576 
 
 Winter v. Crosstown St. Ry. Co. (N. Y.), 5 Am. Electl. Cas. 515. •• 361 
 
 Winter v. Fed. St., etc., R. Co., 153 Pa. St. 26 342, 347, 362 
 
 Winters v. Kansas City Cable R. Co., 99 Mo. 509 529 
 
 Wisconsin Central R. Co. v. Taylor Co., 52 Wis. 37 573 
 
 Wise V. Brooklyn H. R. Co., 46 App. Div. (N. Y.) 246 515, 527 
 
 Wise V. So. Covington & C. R. Co., 17 Ky. L. Rep. 1359 497 
 
 Witsell V. West Asheville & S. S. R. Co., 120 N. C. 557 427 
 
 Witzell v. Third Ave. R. Co., 3 Misc. Rep. (N. Y.) 561 319 
 
 Woeckner v. Erie El. M. Co. (Pa.), 6 Am. Electl. Cas. 581 305, 374 
 
 Wohlfahrt v. Becker, 92 N. Y. 490 546 
 
 Wolf v. Houston, etc., R. Co., 50 Hun (N. Y.), 603 529 
 
 Wolfe v. Third Ave. R. Co., 67 App. Div. (N. Y.) 605 486 
 
 Wood V. Brooklyn City R. Co. (N. Y.), 6 Am. Electl. Cas. 429 .... 468 
 
 Wood V. City of Seattle (Wash.), 62 Pac. 13s 106, 114, 124 
 
 Wood V. Diamond El. Co., 185 Pa. St. 529 363 
 
 Wood V. St. Paul City Ry. Co., 42 Minn. 411 I73 
 
 Wood V. Third Ave. R. Co., 13 Misc. Rep. (N. Y.) 308 239 
 
 Woo Dan v. Seattle El. R. P. Co., 5 Wash. 466 460 
 
 Woodland v. N. Jersey St. R. Co. (N. J.), 49 Atl. 479 320 
 
 Woodruff v. Erie R. Co., 93 N. Y. 609 44 
 
 WoodrufI v. Erie R. Co., 25 Hun (N. Y.), 246 119 
 
 Woodruff V. Paddock, 130 N. Y. 618 I49 
 
 Woods V. Buffalo R. Co., 35 App. Div. (N. Y.) 203 442 
 
 Woodward v. West Side St. R. Co., 71 Wis. 625 459, 521 
 
 Wooley V. Grand St. & N. R. Co., 83 N. Y. 121 244, 276 
 
 Woonsocket St. Ry. Co. v. City of Woonsocket (R. L), 46 Atl. 272. . . 63 
 
 209 
 
 Workmen v. So. Pac. R. Co. (Cal ), 62 Pac. 185 109, 123 
 
 Worthington v. Lindell R. Co., 72 Mo. App. 162 461 
 
 Worster v. Forty-second St., etc., R. Co., 50 N. Y. 203 259, 394, 421 
 
Cil TABLE OF CASES. 
 
 FACE 
 
 Wosika V. St. Paul Ry. Co. (Minn.), 83 N. W. 386 307, 367, 388 
 
 Wrasse v. Citizens' Tract. Co., 146 Pa. St. 417 488 
 
 Wren v. Golden T. Min. Co. (Wash.), 64 Pac. 174 565 
 
 Wright V. Chicago, B. & Q. R. Co., 4 Colo. App. 102 498 
 
 Wright V. Glens Falls, etc., St. R. Co., 24 App. Div. (N. Y.) 617. . 224 
 
 440, 494 
 
 Wright V. Maiden & Melrose R. Co., 4 Allen (Mass.), 283 307 
 
 Wright V. Milwaukee El. R. & L. Co., 9S Wis. 29 118, 128 
 
 Wright V. Railroad Co., 21 R. I. 554 548 
 
 Wyandotte County Comrs. v. Abbott, 52 Kan. 148 569 
 
 Wyatt V. Citizens' Ry. Co., 55 Mo. 485 487 
 
 Wynn v. Central Park, etc., R. Co., 133 N. Y. 575. . 301, 427, 432, 457, 511 
 
 SIS. 544 
 
 Wynn v. Central Park, etc., R. Co., 10 App. Div. (N. Y.) 13 279 
 
 Wynn v. Havana City & S. R. Co., 91 Ga. 344 488, 489 
 
 Wynne v. Atlantic Ave. R. Co., 14 Misc. Rep. (N. Y.) 394 304 
 
 Wyoming v. Wilkesbarre, etc., R. Co., 8 Kulp (Pa.), 113 244 
 
 Y. 
 
 Yates V. N. Y. C. & H. R. R. Co., 67 N. Y. 100 444 
 
 Yazoo, etc., R. Co. v. Adams, 181 U. S. 580 S7S 
 
 Yazoo & M. V. R. Co. v. Adams, 180 U. S. i 597 
 
 Yazoo & M. V. R. Co. v. Martin (Miss.), 29 So. 829 564 
 
 Yazoo & M. V. R. Co. v. West, 78 Miss. 789 577 
 
 Young V. Atlantic Ave. R. Co., 10 Misc. Rep. (N. Y.) 541 . . 304, 372, 396 
 
 Young V. Citizens' St. Ry. Co., 148 Ind. 54 350, 367 
 
 Young V. Magazine St. R. Co., 24 La. Ann. 53 127 
 
 Z. 
 
 Zanger v. Railroad Co., 87 Mich. 646 277 
 
 Zackery v. Mobile & O. R. Co., 74 Miss. 520 449 
 
 Zehren v. Milwaukee El. R. & L. Co., 99 Wis. 83 139 
 
 Zimmer v. Third Ave. R. Co., 36 App. Div. (N. Y.) 265 319, 509 
 
 Zimmerman v. Union Ry. Co., 72 N. Y. Supp. 229 339 
 
 Zimmerman v. Union Ry. Co., 38 N. Y. Supp. 362 358 
 
 Zingreve v. Union Ry. Co., 56 App. Div. (N. Y.) 555 561 
 
 Zwack V. N. Y., etc., Co., 160 N. Y. 362 377 
 
THE LAW OF STREET SURFACE RAILROADS. 
 
 CHAPTER I. 
 
 The Right to Construct and Operate Street Surface Railroads; How 
 Granted and Controlled by the Legislature. 
 
 Section i. What are street railroads? 
 
 3. To whom the right to operate may be granted. 
 
 3. Location not confined to streets. 
 
 The Charter. 
 
 4. A delegation of sovereign authority. 
 
 5. Conditions prescribed by Constitution or annexed to 
 
 grant; time limit of grant. 
 
 6. Authority delegated only for a public use. 
 
 7. The delegated authority not to be implied. 
 
 8. Curative act validating exercise of authority. 
 
 9. Charter a contract; how construed. 
 
 10. Amendment or repeal of charter. 
 
 11. Forfeiture or annulment of charter. 
 
 12. Legislative control of streets. 
 
 § 1. What are street railroads? — Street railroads are rail- 
 roads constructed upon streets or highways for the purpose 
 of facilitating the use thereof in the transportation of per- 
 sons and property.' The difiference between them and rail- 
 
 I. State V. Dayton Traction Co., Oreg. 60, 47 Am. & Eng. R. Cas. 
 18 Ohio Cir. Ct. 490, 10 O. C. D. 51, 25 Pac. 147. A street railroad 
 212. It has been held that the company was held liable for the 
 designation " street railways " is to loss of merchandise delivered for 
 be confined to passenger carriers transportation to one of its con- 
 exclusively. Carli V. Stillwater St. ductors and carried upon the plat- 
 R., etc., Co., 28 Minn. 373, 10 N. W. form of a passenger car, for money 
 20s, 3 Am. & Eng. R. Cas. 226, 41 paid by owners of goods to con- 
 Am. Rep. 290. Street railroads are ductor, upon proof that two other 
 not carriers of goods except under persons had before then paid con- 
 special circumstances. Thomson- ductors for like transportation of 
 Houston Elec. Co. v. Simon, 20 goods, with the knowledge of the 
 
2 STREET SURFACE RAILROADS. 
 
 roads for general traffic consists in their use, not in their 
 motive power. A railroad, the rails of which are so laid as 
 to conform to the grade of the street, and which is otherwise 
 so constructed that the public is not excluded from the use 
 of any part of the street as a public highway, the cars upon 
 which are propelled at a moderate rate of speed, compared 
 with the speed of traffic railroads, at short intervals, carrying 
 only passengers from one part of a thickly populated district 
 to another, in a town or city and its suburbs, stopping at 
 every street crossing to receive and discharge passengers, is 
 a street surface railroad, no matter whether the cars are pro- 
 pelled by animal or mechanical power.^ It is none the less 
 a street surface railroad when it is organized under the Sur- 
 face Railroad Law, although it chooses to pass for a portion 
 of its route over its own property and not within the bounds 
 of the public highways.* But a railroad constructed in the 
 
 superintendent of the road. Levi 3. Matter of Syracuse & South 
 V. Lynn, etc., R. Co., 11 Allen Bay R. Co., 33 Misc. Rep. (N. Y.) 
 (Mass.), 300, 87 Am. Dec. 713. 510, 514; Gettysburg Battlefield 
 2. Williams v. City El. St. Ry. Assn. v. G. El. R. Co. (Pa. Atty.- 
 Co. (C.,C. E. D. Ark.), 41 Fed. Gen.), 2 Pa. Dist. 659. Alocalpas- 
 556, 43 Am. & Eng. R. Cas. 215, senger railroad built along a turn- 
 7 R. R. & Corp. L. J. 448. A rail- pike outside the city limits, under 
 road on private land just inside a contract purchasing the privi- 
 the fence along a turnpike road, lege from the turnpike company, 
 and not upon a street or highway, and for which no street franchise 
 is not within the Pennsylvania of any kind whatever has been con- 
 statute providing for the forma- ferred by the city, does not, upon 
 tion of street railway companies. the extension of the city limits to 
 Gay v. Bristol, etc., Co. (C. P.), include a portion of the road, be- 
 22 Pa. Co. Ct. 465. But under come "a street railway" within 
 Pennsylvania act of May 14, 1889, the Maryland laws, imposing a 
 electric railways are not limited to park tax of 9 per cent, upon gross 
 building their lines upon streets or receipts from all street railway 
 roads within boroughs or cities. lines within the city limits. Bal- 
 Conshohocton v. Pa. Ry. Co. (C. timore v. B. C. & E. M. Pass. R. 
 P.), IS Pa. Co. Ct. 45- Co., 84 Md. i, 35 Atl. 17, 33 L. 
 
WHAT ARE STREET RAILROADS? 3 
 
 country and without reg-ard to roads, for a considerable dis- 
 tance, for transporting persons from one city to another, is 
 rural rather than urban, though it confine its business to 
 carrying passengers only, and is operated by a street rail- 
 road company.* Street railroads may occupy every street 
 in a city and iron the whole surface, or spin their webs in 
 the air over every avenue, or undermine the entire system 
 of city streets. They may be under or elevated above the 
 surface of the streets and still be street railroads in those 
 streets. 5' They are pubhc highways in themselves and may 
 ■exclude all other means of transit over the route. ^ In the 
 absence of statutes circumscribing their powers, the persons 
 or corporations operating them may carry property, freight, 
 as well as passengers.'' Ordinarily, the statutes authorizing 
 
 R. A. 503. And see New Orleans 
 City & L. R. Co. v. Watkins, ^ 
 La. Ann. 1550, 21 So. 199. 
 
 4. Hanna v. Met. St. R. Co., 81 
 Mo. App. 78. 
 
 5. So stated in a case holding 
 that the consents of abutting 
 owners as well as of local author- 
 ities were necessary to the con- 
 struction of an underground street 
 railroad. Matter of N. Y. Dist. R. 
 Co., 107 N. Y. 42, 52, 32 Am. & 
 Eng. R. Cas. 202, 14 N. E. 187. 
 
 6. Sun Pub. Assn. v. Mayor, 152 
 N. Y. 257, 46 N. E. 499- 
 
 7. State V. Dayton Traction Co., 
 18 Ohio Cir. Ct. 490, 10 O. C. D. 
 212. 
 
 Under the acts authorizing the 
 construction of railroads in New 
 York, passed in 1848 (chap. 140) 
 and 1850 (chap. 140), street sur- 
 face railroads are not mentioned 
 in terms; and the acts provided for 
 the carriage of passengers and 
 
 freight; but the grant to street sur- 
 face railroads incorporated there- 
 under was frequently held to carry 
 the right to convey both pas- 
 sengers and freight upon the con- 
 structed line. De Grauw v. Long 
 Island El. R. Co., 43 App. Div. (N. 
 Y.) 502, 505, 60 St. Rep. (N. Y.) 
 163; aflfd., 163 N. Y. 597, 57 N. E. 
 1 108. And see Nichols v. Ann 
 Arbor, etc., Co., 87 Mich. 361, 49 
 N. W. 538; Clement v. Cincin- 
 nati, 16 W. L. B. 355. A street 
 railroad may be organized in a 
 city street in Texas under Laws 
 1897, chap. 130, pp. 188, 189, to 
 transport freight. Such purpose 
 is consistent with the purposes for 
 which streets exist, and an abut- 
 ting property-owner is not entitled 
 to have such use enjoined or de- 
 clared a nuisance. Aycock v. 
 San Antonio Brewing Assn. (Tex. 
 Civ. App.), 63 S. W. 953- 
 
STREET SURFACE RAILROADS. 
 
 their use expressly conferred power to convey persons and 
 property in cars for compensation.* Frequently however. 
 
 8. For illustration, see N. Y. 
 Railroad Law, chap. 565, of 1890, 
 art. IV, i 90; 3 Heydecker's Gen. 
 Laws (2d ed.), 3306. 
 
 Authority to construct and op- 
 erate a street railroad confers no 
 power to construct and operate a 
 railroad for the purpose of trans- 
 ferring freight cars. South & N. 
 A. R. Co. V. Highland Ave. & B. 
 R. Co., 119 Ala. 105, 24 So. 114. 
 
 The section cited authorizes the 
 construction of street surface rail- 
 roads, under restrictions, " for 
 public use in the conveyance of 
 persons and property for compen- 
 sation." Under the Railroad Law 
 of 1850, it was held that corpora- 
 tions might be legally formed for 
 the transportation of passengers or 
 freight, or both, over railroads in 
 the streets of cities where horses 
 were to be the motive power, ex- 
 cepting the city of New York. 
 Matter of Wash. St. Asylum & P. 
 R. Co., 115 N. Y. 442, 22 N. E. 
 356; People's Rapid Transit Co. v. 
 Dash, 125 N. Y. 93, 26 N. E. 25. 
 Construing the words quoted 
 above, it has been held that they 
 allow street surface railroads to 
 operate cars designed and intended 
 exclusively for carrying express 
 matter, freight, or property, and 
 used exclusively for that purpose. 
 De Grauw v. Long Island El. R. 
 Co., 43 App. Div. (N. Y.) 502, 
 60 St. Rep. (N. Y.) 163; aflFd., 
 163 N. Y. 597, 57 N. E. 1 108. 
 In deciding the question, the 
 court, per Hatch, J., said: 
 " By familiar rules therefore we 
 must hold that the authority ex- 
 
 isted when this contract was made 
 to convey both passengers and 
 freight over the defendant's lines 
 and to contract for cars to run 
 thereon for the exclusive carriage 
 of passengers and for the exclu- 
 sive carriage of freight. Such is 
 the language of the statute. It is 
 said that this language must be cut 
 down, and the right to convey 
 property must be read in con- 
 nection with the passenger, as 
 though it said ' passengers with 
 property.' It is not reasonably 
 conceivable that the legislature 
 had such intention. In the ordi- 
 nary carriage of passengers upon 
 street railroads it has never been 
 thought that passengers carrying 
 small articles or such baggage as 
 may be carried by hand was the 
 occasion for the use of the word 
 ' property ' as used in the statute. 
 The regulation for the carriage of 
 such property, that which accom- 
 panies the passenger, even upon 
 commercial roads, is usually by 
 rule of the company and not by 
 statute;, it stands upon a different 
 footing from the carriage of other 
 property, and by common accepta- 
 tion is usually denominated bag- 
 gage, or, to adopt the English ex- 
 pression, luggage, meaning in pop- 
 ular phrase that which is carried 
 by the person. No such limited 
 meaning is to be ascribed to lan- 
 guage deliberately used in a stat- 
 ute, where the interpretation 
 placed upon it was as discriminat- 
 ing freight quite independent of 
 passage by its owner. Certainly no 
 one would have supposed that the 
 
WHAT ARE STREET RAILROADS? 
 
 both in general and special laws, the power is limited to the 
 carriage of passengers only.^ Ordinarily, too, it is provided 
 by statute that the road, or any part thereof, may be operated 
 by animal or horse power, or by cable, electricity, or any 
 power other than locomotive steam power.'" In short, 
 street railroads are creatures of legislation; and in the ab- 
 sence of constitutional restriction, they may be organized 
 to be operated for the transportation of passengers, or 
 freight, or both, by the use of any motive power." And it 
 is not probable, since their right in a street is subordinate to 
 the rights of the pubHc therein, that such use will result in the 
 operation upon the public thoroughfares of long trains for 
 the transportation of freight, passengers, or property." 
 
 Johnstown and Gloversville Rail- 
 road Company was violating its 
 charter by the carriage of a hand- 
 bag, accompanied by its owner, 
 and yet it was prohibited from 
 carrying anything except persons 
 or passengers." 
 
 9. See special laws cited in De 
 Grauw Case, supra, p. 504. 
 
 10. For illustration, see N. Y. 
 Railroad Law, chap. 565 of 1890, 
 art. IV, § 100, as amended by chap. 
 676 of 1892, chap. 584 of 1899, 
 chap. 679 of 1900, and chap. 533 of 
 1901; 3 Heydecker's Gen. Laws 
 (2d ed.), 3317. 
 
 11. But the right to propel cars 
 by steam through city streets is 
 not to be implied, and may be 
 prohibited by a municipality under 
 its charter. Richmond, etc., R. 
 Co. V. Richmond, 26 Gratt. (Va.) 
 96. 
 
 12. De Grauw v. Long Island 
 El. R. Co., 43 App. Div. (N. Y.) 
 502, S08, supra. In the case cited 
 the court said: " It is undoubt- 
 
 edly true that the defendants, as 
 to whatever right they have ac- 
 quired to transport passengers, or 
 freight, or property, have a vested 
 right which may not be defeated 
 or impaired by legislation. Such 
 is the effect of the decisions. (In- 
 gersoll V. Nassau Electric R. Co., 
 IS7 N. Y. 453; Roddy v. Brooklyn 
 City & Newtown R. Co., 32 App. 
 Div. [N. Y.] 311.) But we do not 
 apprehend that such fact, nor our 
 present construction of the stat- 
 ute will entail all of the evils which 
 the appellant insists must follow 
 in the train of such result. It can 
 never happen that the right of use 
 conferred by the franchise granted 
 street surface railroads will result 
 in the operation of long trains for 
 the transportation of either pas- 
 sengers or property. Commercial 
 railroads do not furnish a parallel 
 of use. The latter are constructed 
 upon the property of the corpora- 
 tion over which, except for pur- 
 poses of crossing and otherwise in 
 
6 
 
 STREET SURFACE RAILROADS. 
 
 Whether the General Railroad Law is applicable to street 
 railroads must be determined in every case from the purpose 
 
 a very limited way, the general 
 public do not travel, and have 
 thereon, except for purpose of 
 transportation, no right. This con- 
 dition is created for the express 
 purpose of furnishing facilities for 
 the hauling of long consolidated 
 trains, which may be operated for 
 the reason that all else is excluded 
 except such operation. The grant 
 of power to these corporations was 
 conditioned upon the creation of 
 such surroundings as would en- 
 able them to so operate without 
 detriment to the public, and with- 
 out interfering or trespassing upon 
 its rights. No such conditions sur- 
 round a street surface railroad; 
 the use of the street by the rail- 
 road is subordinate to the right of 
 the public therein. In the struggle 
 which is going on for the trans- 
 portation of persons and property, 
 it must be confessed that street 
 surface railroads are not backward 
 in the assertion of all the rights 
 which the grant of power confers. 
 But the law is, and the courts may 
 be relied upon to enforce the law, 
 that the right of use of the street 
 by the public is first and primary; 
 the right of use by the street 
 surface railroad is secondary and 
 subordinate. It has the paramount 
 right of use of its tracks, but not 
 the exclusive use, and when the 
 right of the public or an individual 
 member of it requires the use of 
 the street for a proper purpose, the 
 right of the railroad company 
 must yield thereto, even though 
 the effect be, for the time, to stop 
 the operation of its cars thereon. 
 
 (Black V. Staten Island E. R. Co., 
 40 App. Div. [N. Y.] 238.) "■ 
 
 Prior to 1855 a railroad com- 
 pany v»-as authorized to propel its 
 cars by steam power upon At- 
 lantic avenue in Brooklyn, N. Y. 
 In 1859, under statute authority 
 and upon consideration paid by 
 property benefited, it relinquished 
 the right to use steam. In 1876 it 
 was again authorized to use steam 
 and resumed the use thereof. In 
 1874, art. Ill, I 18, was added to 
 the Constitution, providing that 
 the legislature shall not pass a 
 private or local bill granting, to 
 any corporation, association, or 
 individual, the right to lay down 
 railroad tracks, or to any private 
 corporation, association, or indi- 
 vidual, any exclusive privilege, im- 
 munity, or franchise whatever, and 
 that no law should authorize the 
 construction or operation of a 
 street railroad, except upon the 
 condition that the consent of the 
 owners, etc., be had. It was held 
 that this constitutional provision 
 was prospective in its operation 
 and had no reference to, or effect 
 upon, previously existing laws. 
 That when in 1876 the restriction 
 upon the use of steam was re- 
 moved, the original charter power 
 was left in full force, and that the 
 State could not restrain the use of 
 steam upon the company's road in 
 the avenue, and that the question 
 whether the removal of the restric- 
 tion was violative of the constitu- 
 tional prohibition against legisla- 
 tion impairing the obligation of a 
 contract could not be presented in 
 
WHAT ARE STREET RAILROADS? 7 
 
 and intent of the statute. '^ In a recent case in California 
 it was held that street railroad companies are not railroad 
 or transportation companies within the meaning of the 
 Constitution, art. XII, § 22, defining the judgment and 
 jurisdiction of the railroad commission and authorizing it 
 to establish rates of charges for the transportation of pas- 
 sengers and freight by railroad and other transportation 
 companies."* 
 
 an action brought by the State to 
 which the assessed landowners, 
 who alone had contract rights, if 
 any existed, were not parties. The 
 People V. Brooklyn F. & C. I. R. 
 Co., 89 N. Y. 75. 
 
 13. A statute requiring all trains 
 to stop within 100 feet of the in- 
 tersection of two railroads includes 
 a local line in a highway. Birming- 
 ham Mineral R. Co. v. Jacobs, 92 
 Ala. 200, 9 So. 320; Katzenberger 
 V. Lawo, 90 Tenn. 235, 16 S. W. 
 611. An act authorizing the con- 
 solidation of railroads was held to 
 include street railroads. In re 
 Wash. St., etc., . R. Co., 115 
 N. Y. 442, 40 Am. & Eng. R. Cas. 
 538, 22 N. E. 356; Hestonville R. 
 Co. V. Philadelphia, 89 Pa. St. 210. 
 A statute for consolidation of rail- 
 roads held not to apply. Gyger 
 V. Philadelphia, etc., R. Co., 136 
 Pa. St. 96; Shipley v. Continental 
 R. Co., 13 Phila. (Pa.) 128; Mill- 
 vale V. Evergreen R. Co., 131 Pa. 
 St. I. The act making the real es- 
 tate of " any railroad company " 
 subject to certain statutes held ap- 
 plicable to street railroads. Citi- 
 zens' Pass. R. Co. V. Pittsburg, 
 104 Pa. St. 522, 17 Am. & Eng. R. 
 Cas. 438. 
 
 A statute in Massachusetts pro- 
 
 vided that any corporations created 
 by the State, " except railroad and 
 banking corporations," might in- 
 stitute proceedings in insolvency. 
 The exception was held to em- 
 brace street railway corporations. 
 The court, per Gray, J., said: 
 " A ' horse railroad company,' or, 
 as it is more frequently and more 
 properly called in recent statutes, 
 a ' street railway corporation,' has 
 all these attributes, and is none the 
 less a ' railroad corporation,' less 
 public in its character, or more fit 
 to have its franchise and property 
 transferred to assignees under 
 proceedings in insolvency, because 
 it more generally uses horses in- 
 stead of steam power to draw its 
 cars, and lays its rails over land 
 already devoted to the public use 
 for a street or highway, and is 
 therefore made by statute pecu- 
 liarly subject, in the location and 
 use of its tracks, to the regula- 
 tions of municipal authorities. 
 (Central Nat. Bank v. Worcester 
 H. R. Co., 13 Allen [Mass.], 
 
 lOS.) " 
 
 14. Railroad Comrs. v. Market 
 St. Ry. Co., S3 Cent. L. J. 268 
 (No. 14, Oct. 4, 1901), 64 Pac. 
 1065. The case also decided that 
 a legislative interpretation of a 
 
8 
 
 STREET SURFACE RAILROADS. 
 
 § 2. To whom right to operate may be granted. — In the ab- 
 sence of constitutional prohibition, the legislature may give 
 to individuals and their assigns the right to construct and 
 operate a street surface or other railroad. And such rail- 
 road will be deemed to be constructed and operated for 
 public use. The legislature may, in the absence of such 
 prohibition, delegate to individuals and their assigns the 
 right of eminent domain as well as to corporations or joint- 
 stock companies.'^ But natural persons cannot exercise the 
 
 constitutional provision contem- 
 poraneous with its adoption might 
 be considered by the courts in an 
 interpretation of a doubtful pro- 
 vision thereof, and held that street 
 railroad companies were expressly 
 excepted from the act defining 
 transportation companies as in- 
 cluding all companies owning and 
 operating railroads other than 
 street railroads. In the opinion of 
 Cooper, C, the following ap- 
 pears: " But, independent of a 
 contemporaneous interpretation so 
 given to the Constitution by the 
 legislature, we think the inter- 
 pretation correct, and that the 
 words ' railroad company ' were 
 not intended to mean street rail- 
 way. In the ordinary acceptation 
 of the term ' railroad company ' or 
 ' railroad,' it is not understood to 
 mean a street railway engaged in 
 the business of carrying pas- 
 sengers the entire distance, or any 
 part of the distance, over which 
 the road runs, for one and the 
 same fare." In Georgia it is held 
 that though the general assembly 
 had in 1891 no power to confer on 
 street car companies the author- 
 ity to become common carriers of 
 freight, the grant of such author- 
 
 ity would not in any way affect 
 other powers which had been law- 
 fully granted to such companies 
 (Brown v. Atlanta R. & P. Co., 39 
 S. E. 71. Rev. Stat., §§ 2.^%a-\^ 
 [92 Ohio Laws, 17]) classify 
 suburban and interurban railroads 
 with street railroads. They there- 
 fore are governed by the laws re- 
 lating to street railroads. Cincin- 
 nati, etc., St. Ry. Co. v. Cincin- 
 nati H. & I. R. Co. (Ohio), 12 
 O. C. D. 113. 
 
 15. Matter of Kerr, 42 Barb. (N. 
 Y.) 119, 2S How. Pr. (N. Y.) 258. 
 In New York & H. R. Co. v. 
 Forty-second St., etc., R. Co., 50 
 Barb. (N. Y.) 309, 311, the court 
 said: "There is no constitutional 
 provision that prohibits such fran- 
 chise being conferred upon or 
 exercised by individuals; nor does 
 there appear to be any objection 
 to making such rights assignable. 
 The legislature had the power to 
 grant this franchise. The ex- 
 pediency and necessity of grant- 
 ing, the propriety of granting it to 
 a corporation, or a set of indi- 
 viduals, and their assigns; the safe- 
 guards and restrictions to be 
 placed upon the use, — are all, un- 
 less some constitutional inhibition 
 
TO WHOM RIGHT TO OPERATE GRANTED. 
 
 9 
 
 franchises which the State has conferred upon railroad cor- 
 porations ; they may however be the conduit for transmitting 
 them to another corporation in the manner provided by 
 law; they may bid in the property at a foreclosure sale, in- 
 cluding the franchises, and hold and transmit it intact to a 
 corporation authorized to exercise them.'* A railroad for 
 private use may not be laid in a city street, even with the 
 consent of the city. Any abutting lotowner whose lot is or 
 may be injured may have a perpetual injunction.'^ A 
 
 is violated, entirely in the discre- 
 tion of the legislature. And see 
 Henderson v. Ogden City Ry. Co., 
 7 Utah, 199, 26 Pac. 286, 46 Am. 
 & Eng. R. Cas. 95; Budd v. Mult- 
 nomah St. Ry. Co., IS Oreg. 404, 
 15 Pac. 654, 40 Am. & Eng. R. 
 Cas. SSI, 3 Am. St. Rep. 169. 
 Where a municipal council had 
 granted the right to lay street rail- 
 road tracks, and the ordinance had 
 been confirmed by the legislature, 
 it was held immaterial whether 
 the grant of such right constituted 
 a corporation or only a partner- 
 ship. Nash V. Lowry, 37 Minn. 
 261, 33 N. W. 787- 
 
 The word " purchasers " in Ala- 
 bama Code authorizing purchasers 
 at a judicial sale of a street railroad 
 franchise to organize as a corpo- 
 ration embraces subpurchasers. 
 Birmingham Ry. & El. Co. v. 
 Birmingham Traction Co., 29 So. 
 187. 
 
 16. Parker v. Elmira, etc., R. 
 Co., 16s N. Y. 274, 281. 
 
 17. Mikesell v. Durkee, 34 Kan. 
 509, 9 Pac. 278. 
 
 The corporate authorities of 
 New York city have the control 
 of the streets of that city in trust. 
 The use of those streets is to be 
 
 limited or extended for the public 
 benefit from time to time as oc- 
 casion might require; and the cor- 
 porate powers in this regard can 
 neither be delegated to others, 
 nor effectually abridged by any 
 act of the corporate authorities. 
 Power cannot be conferred upon 
 individuals, by contract, for an in- 
 definite period, to construct and 
 operate a railroad in the public 
 streets for their private advan- 
 tage. Such power would seem to 
 amount to a freehold interest in 
 the soil of the streets. Milhaw v. 
 Sharp, 27 N. Y. 611. And see Peo- 
 ple V. Kerr, id. 188; Presbyterian 
 Church V. Mayor, etc., S Cow. (N. 
 Y.) 538; Goszler v. Georgetown, 6 
 Wheat. (U. S.) 593; Potter v. Col- 
 lis, is6 N. Y. 16, SO N. E. 413. A 
 street railway franchise granted by 
 a city is null and void, where it was 
 intended for private and not for 
 public purposes. And the defect 
 is not cured because the immediate 
 purpose of the persons who pro>- 
 cured it was to transfer the same 
 to another party. San Antonio v. 
 Rische (Tex. Civ. App.), 38 S. W. 
 388. • 
 
 A private corporation, in the ab- 
 sence of either legislative or mu- 
 
lO 
 
 STREET SURFACE RAILROADS. 
 
 municipality itself may build and operate a railroad, and 
 such railroad is a highway and may properly be deemed to 
 be for a pubHc purpose within the meaning of the provision 
 of the Constitution which prohibits cities from incurring 
 any indebtedness except for a city purpose.'^ 
 
 nicipal permission, has no right to 
 impose a permanent structure on 
 a highway and thereby sequester 
 to its exclusive use and for its ex- 
 clusive profit any portion thereof. 
 Stamford v. Stamford R. Co., 56 
 Conn. 381, IS Atl. 749, 1 L. R. A. 
 
 375- 
 
 Where a municipality authorizes 
 the construction of a railroad track 
 in a way to connect a private 
 manufacturing estabUshment with 
 other railroad tracks, it becomes a 
 public highway, and the city coun- 
 cil may devote a portion of it to 
 that use. The remedy of persons 
 sustaining injuries thereby is at 
 law, and chancery cannot control 
 the manner in which the right 
 should be exercised. Parlin v. 
 Mills, II 111. App. 396. 
 
 A railroad corporation formed 
 by only three persons, under a 
 statute providing that corporations 
 may be created by three or more 
 persons for the purpose of con- 
 structing and operating street rail- 
 roads in cities and towns for the 
 transportation of freight and pas- 
 sengers, is not such a corporation 
 as is contemplated by another stat- 
 ute requiring not less than ten per- 
 sons as incorporators of a railroad 
 company. Aycock v. San An- 
 tonio Brewing Assn. (Tex. Civ. 
 App.), 63 S. W. 953. 
 
 18. Sun Pub. Assn. v. Mayor, 
 152 N. Y. 257, 46 N. E. 499. The 
 case cited established the validity 
 
 of what are called the Rapid 
 Transit Acts (Laws 1894, chap. 
 752, Laws 1895, chap. 519, amend- 
 ing Laws 1891, chap. 4), which au- 
 thorizes cities of over a million in- 
 habitants to construct railroads 
 therein, which should be deemed 
 public highways, at their own ex- 
 pense, if so determined by the vote 
 of a majority of the electors, and 
 to issue bonds in payment there- 
 for. As stated in the opinion, 
 " The acts, in brief, create a rapid 
 transit commission and provide 
 that the commissioners shall, in 
 case they deem it necessary, and 
 upon the written request of the 
 local authorities, proceed to locate 
 a route and provide the plans and 
 specifications for a railway through 
 the city. That, after they shall 
 have so located the route and pro- 
 vided the plans upon which the 
 railway should be built, they may 
 sell at public auction the right, 
 privilege, and franchise to con- 
 struct, maintain, and operate such 
 railway; or, if the people shall de- 
 termine by vote of a majority of 
 the electors that such railway shall 
 be constructed for and at the ex- 
 pense of the city, then the com- 
 missioners shall enter into a con- 
 tract with any person, firm, or cor- 
 poration best qualified in their 
 opinion to fulfill and carry out the 
 contract, for the construction of 
 such road upon the route, and in 
 accordance with the plans and 
 
LOCATION NOT CONFINED TO STREETS. 
 
 II 
 
 § 3. Location not confined to streets. — The location of street 
 railroads is not confined strictly to streets, so called, under 
 a statute providing for their location on streets or high- 
 ways.'' They may be constructed in part through lands 
 
 specifications adopted. In case the 
 road shall be built at the expense 
 of the municipdity, the officers of 
 the city, upon requisition of the 
 commissioners, are required to is- 
 sue the bonds of the city, to the 
 amount of $55,000,000, payable in 
 gold, with interest not to exceed 
 2V2 per cent., free from taxes, with 
 which to pay for such construction. 
 It is further provided that the 
 commissioners may also enter into 
 a contract with the contractors for 
 the building of the road, for the 
 lease and operation of the same 
 for a period not less than thirty- 
 five years, nor more than fifty 
 years, at a rental agreed upon, to 
 be not less than the interest on 
 the sum paid by the city for the 
 construction, and i per cent, in 
 addition, and that the same may 
 be renewed from time to time, as 
 the lease shall expire, upon such 
 terms as shall be agreed upon; 
 that in case of default in paying 
 the annual rental provided for, or 
 in case of the failure or neglect on 
 the part of the contractors to 
 faithfully observe and fulfill the re- 
 quirements of the contract, the 
 city, by its rapid transit commis- 
 sioners, may take possession of 
 the road and equipments, and as 
 the agents of the contractors, 
 either maintain and operate the 
 road at their expense, and upon 
 their liability, or enter into a new 
 contract with other persons for its 
 operation. The acts also provide 
 
 that in case the road shall be con- 
 structed by the municipality, it 
 shall be and remain the absolute 
 property of the city, and shall be 
 deemed to be a part of the public 
 streets and highways of the city, 
 to be used and enjoyed by the 
 public, upon the payment of such 
 fares and tolls, and subject to 
 such reasonable rules and regula- 
 tions, as may be imposed and 
 provided by the board of rapid 
 transit commissioners." Judge 
 Haight also stated in his opinion 
 in the case cited, that in recent 
 years railroads have been con- 
 structed and come into general 
 use, so that now a very large per- 
 centage of the transportation of 
 the country is done upon these 
 roads; and in the year 1893 
 465,000,000 persons were trans- 
 ported over the railroads in the 
 city of New York. He said that 
 they were not common highways 
 in the sense that they are under the 
 care and management of the mu- 
 nicipality, but as to their purpose, 
 which is the transportation of per- 
 sons and property for the public, 
 they are as distinctly highways as 
 the ordinary street; and the fact 
 that a uniform tee is charged for 
 persons taking passage over them 
 does not differentiate them from 
 other highways. Page 265. 
 
 19. Pennsylvania Ry. Co. v. 
 Greensburgh, etc., St. Ry. Co., 176 
 Pa. St. 559, 35 Atl. 122, 27 Pittsb. 
 L. J. (N. S.) 134. Where a city 
 
12 
 
 STREET SURFACE RAILROADS. 
 
 acquired by purchase which are outside the limits of streets 
 and highways.^" 
 
 The Charter. 
 § 4. A delegation of sovereign authority. — Municipal cor- 
 porations have no authority, in the absence of a delegation 
 of power by the legislature, to grant a street railroad com- 
 pany the right to lay tracks in the streets.^' The authority 
 
 authorized a street railroad to lay 
 its track along a street which ran 
 through the yard of a steam rail- 
 road company, the latter had no 
 ground of complaint justifying the 
 issuing of an injunction. Texas 
 & Pac. R. Co. V. Rosedale St. R. 
 Co., 64 Tex. 80, 53 Am. Rep. 739. 
 
 A corporation will not be al- 
 lowed to appropriate and construct 
 a street railroad over a roadway 
 which has been improved at pri- 
 vate expense, when there are 
 other roadways that will answer 
 equally as well the purposes of 
 the public. In re Port Chester 
 St. Ry. Co., 43 App. Div. (N. Y.) 
 536. 
 
 Where the statute permits it, a 
 borough ordinance permitting, 
 with the consent of the property- 
 owner, a divergence from a high- 
 way for a quarter of a mile over 
 private property and crossing the 
 highway, cannot be questioned in 
 a proceeding by residents and 
 property-owners of the borough. 
 Keough V. Pittston, etc., R. Co., 
 5 Lack. Leg. N. (Pa.) 242. 
 
 20. Farnum v. Haverhill & A. 
 St. Ry. Co. (Mass.), 59 N. E. 755. 
 
 21. Potter V. Collis, 156 N. Y. 
 16, 50 N. E. 413. The city author- 
 ities have no power to grant the 
 right except so far as they may be 
 
 authorized by the legislature, and 
 then only in the manner and upon 
 the conditions prescribed by the 
 statute. Davis v. Mayor, etc., 14 
 N. Y. 506; Milhaw v. Sharp, 27 id. 
 611; People V. Kerr, id. 188; De- 
 troit v. Detroit City Ry. Co. (C. 
 C. E. D. Mich.), 56 Fed. 857. 56 
 Am. & Eng. R. Cas. 337; State, 
 Jacksonville v. Jacksonville St. R. 
 Co., 29 Fla. 590, 50 Am. & Eng. 
 R. Cas. 179, ID So. 590. Al- 
 though the word " railroads,"^ 
 when used in a statute, will gen- 
 erally be construed to embrace 
 street passenger railroads, in a 
 statute which prohibits the con- 
 solidation of competing railroad 
 and canal companies (construed in 
 the light of the remaining sections 
 of that article, as well as that of its 
 manifest purpose) does not in- 
 clude such railroads. Montgom- 
 ery v. Philadelphia City R. Co., 
 136 Pa. St. 96, 20 Atl. 399, 9 L. R. 
 A. 369, 8 Ry. & Corp. L. J. 462, 
 26 W. N. C. 437. Corporations 
 for the construction of street sur- 
 face railways in cities, organized 
 under the enabling act of 1884, 
 and the supplemental acts, derive 
 all their powers from the State, 
 and none from the city or village 
 where they may carry on their 
 operations. People, West Side 
 
THE CHARTER. 
 
 13 
 
 to make use of the public streets of a city for railroad pur- 
 poses primarily resides in the State, and is a part of the 
 sovereign power, and the right or privilege of constructing 
 and operating railroads in the streets, which for convenience 
 is called a franchise, must always proceed from that source, 
 whatever may be the agencies through which it is con- 
 ferred.^^ The legislative power, in this particular, is also 
 subject to the limitation that the franchise must be granted 
 for public, and not for private, purposes, or at least public 
 considerations must enter into every valid grant of a right 
 to appropriate a public street for railroad uses.^^ Street 
 railroads are usually organized under the same laws appli- 
 cable to railroads generally.^'* The legislature in nearly 
 every State is required by the Constitution of such State to 
 pass general laws for the formation of corporations. By 
 these general laws, enacted under this requirement, cor- 
 
 St. Ry. Co. V. Barnard, 48 Hun 
 (N. Y.), 57, 15 St. Rep. (N. Y.) 
 689; revd. on other grounds in no 
 N. Y. 548, 18 St. Rep. (N. Y.) 
 542, 18 N. E. 254. A street rail- 
 road company's charter granted 
 by the secretary of state, con- 
 firmed and validated by the legis- 
 lature, is a charter by the legisla- 
 ture of the State, so that the rail- 
 road may cross the tracks of any 
 other railroad under certain con- 
 ditions. Southern Ry. Co. v. At- 
 lantic Ry. & Power Co., 36 S. E. 
 873. The legislature can, without 
 consulting the municipality, grant 
 the right to a street railway com- 
 pany to lay its tracks on a street 
 of the city. Central R. & D. Co. 
 (App.), 67 Conn. 197, 35 Atl. 32; 
 Paterson, etc., Horse R. Co. v. 
 Paterson, 24 N. J. Eq. 158; Jersey 
 
 City V. Jersey City, etc., R. Co., 
 20 id. 360; Brooklyn City, etc., R. 
 Co. V. Coney Island, etc., R. Co., 
 35 Barb. (N. Y.) 364; Harrisburg 
 City Pass. R. Co. v. Harrisburg 
 (Pa.), 24 Atl. 56; Chicago, etc., R. 
 Co. V. Newton, 36 Iowa, 299; Mil- 
 waukee V. Milwaukee, etc., R. Co., 
 7 Wis. 85. 
 
 22. Beekman v. Third Ave. R. 
 Co., 153 N. Y. 144, 152, 47 N. E. 
 277. 
 
 23. Fanning v. Osborn, 102 N. 
 Y. 441, 447, 7 N. E. 307- 
 
 24. So a statute authorizing 
 railroad companies to contract 
 with each other for the use of their 
 respective rights is applicable to 
 street surface roads as well as to 
 those operated by steam. Roddy 
 v. Brooklyn City & N. R. Co., 32 
 App. Div. (N. Y.) 311, 52 N. Y. 
 
14 
 
 STREET SURFACE RAILROADS. 
 
 porate franchises are not directly conferred; they simply 
 provide the mode in which such franchises may be acquired 
 by those desiring them.^'s Individuals desiring to incor- 
 porate under a general law, determine for themselves the 
 necessity of a corporation, their corporate name, what busi- 
 ness they will carry on, where they will transact it, the 
 amount of their capital, and the duration of their corpora- 
 tion. In making such determinations they do not confer 
 upon themselves corporate franchises. They simply act 
 under, apply and carry into efifect the law in reference to 
 which legislative power has been properly evoked.^* Out- 
 side of the powers conferred and the privileges granted to 
 
 Supp. 1025. And a street rail- 
 road is a railroad within a statute 
 making it an offense to obstruct 
 or injure any railroad. Common- 
 wealth V. McCauUy, 20 Pa. Dist. 63. 
 25. The power to grant special 
 charters to street railroad com- 
 panies, including authority to ex- 
 tend the line to a suburban ter- 
 minus beyond the line of a city or 
 town, is not taken away by a stat- 
 ute authorizing the secretary of 
 state to issue certificates of incor- 
 poration to railroad companies. 
 And the constitutional prohibition 
 against the passage of special stat- 
 utes where there is already in 
 force a general law making pro- 
 vision for the same subject, as the 
 act, does not apply to street rail- 
 roads. Dieter v. Estill, 95 Ga. 370, 
 22 S. E. 622. Where a street rail- 
 road company gave public notice 
 as to the streets, by name, on 
 which it desired to lay tracks, and 
 its petition repeated the list, and 
 the legislature excluded one street 
 asked for and added two others. 
 
 and granted leave to pass over cer- 
 tain other streets by name, the 
 right is restricted to the streets 
 named, notwithstanding the clause 
 granting the privilege ends by 
 saying " and over and across any 
 highway within any of the points 
 of commencing or termination 
 aforesaid." Stamford v. Stamford 
 R. Co., s6 Conn. 381, 15 Atl. 749, 
 I L. R. A. 375. Under a legisla- 
 tive enactment prohibiting munic- 
 ipal corporations from giving con- 
 sent to construct and operate a 
 horse railroad until ten days' pub- 
 lic notice of the time and place of 
 presenting the petition shall have 
 been given, the publication of the 
 report of a committee recom- 
 mending that leave be granted, ten 
 days before the petition, by an 
 ordinance authorizing such con- 
 struction, is not a compliance with 
 the statute. Metropolitan St. R. 
 Co. V. Chicago, 96 111. 620. 
 
 26. Matter of New York El. R. 
 Co., 70 N. Y. 327, 343. 
 
THE CHARTER. 
 
 15 
 
 these organizations by the statutes under which they exist, 
 they are, in all the States of the Union which have the 
 common law as the foundation of their jurisprudence, 
 governed by that common law; and it is the estabhshed 
 doctrine of the Supreme Court of the United States, and, 
 with some exceptions, of the States in which that common 
 law prevails, as well as of Great Britain from which it is 
 derived, that such a corporation can exercise no power or 
 authority which is not granted to it by the charter under 
 which it exists, or by some other act of the legislature which 
 granted that charter.^^ Incorporated under general laws, 
 the articles of association stand in the place of a legislative 
 charter, and the powers of the corporation cannot exceed 
 those enumerated therein. The incorporators may claim all 
 that the law authorizes, or only a part, and when they make 
 
 27. Oregon Ry. & Nav. Co. v. 
 Oregonian Ry. Co., 130 U. S. 1, 
 32 L. Ed. 837. Where the char- 
 ter of a street railroad com- 
 pany authorized it " to locate, 
 construct, and operate such rail- 
 road with cars propelled by elec- 
 tricity, in any mode that does 
 not involve the use of overhead 
 wires," but an earlier general stat- 
 ute empowered the municipal au- 
 thorities to authorize the use of 
 " any improved motive power " 
 except steam upon street railroads, 
 it was held that the powers of the 
 company were limited by its 
 charter, and the municipality could 
 not permit it to use overhead 
 wires, since the exception in the 
 charter was equivalent to a posi- 
 tive prohibition. Farrell v. The 
 Winchester Ave. R. Co., 3 Am. 
 Elertl. Cas. 85, 61 Conn. 127. The 
 rharter of a street railroad com- 
 
 pany will be strictly construed 
 against the company. Citizens' 
 St. R. Co. V. Africa, 100 Tenn. 26, 
 42 S. W. 485; People, Third Ave. 
 R. Co. V. Newton, 112 N. Y. 396, 
 ig N. E. 831. In construing a 
 grant of power, any ambiguity 
 must operate against the grantee 
 and in favor of the public; noth- 
 ing is to be taken as given unless 
 found in the grant or shown to be 
 necessarily incidental thereto, and 
 if not so found, it will be deemed 
 to be withheld. Mayor v. Broad- 
 way, etc., R. Co., 97 N. Y. 275; 
 Mayor v. M. R. Co., 143 id. i, 
 37 N. E. 494. Effect must be 
 given to the whole of the lan- 
 guage used, if it be plain and do 
 not lead to anything manifestly so 
 unjust or absurd that it cannot be 
 assumed the legislature really in- 
 tended such result. Id. 
 
i6 
 
 STREET SURFACE RAILROADS. 
 
 their choice they must abide by it.^* So, when a company 
 expressly names the power it intends to use, it will be held 
 to its choice until it obtain an amendment to its charter.^' 
 It is not doubted that the legislature has authority to 
 charter a street surface railroad company, and grant the 
 power to carry freight exclusively, or passengers exclusively, 
 or unite the authority to carry both.^" And whatever right 
 the company has acquired under its charter to transport 
 passengers, or freight, or property, is a vested right which 
 may not be defeated or impaired by legislation.^' Legis- 
 lative authority to a street surface railroad company " to 
 
 28. Accordingly held, that where 
 the articles of incorporation pro- 
 vide " that said railway is to be 
 operated by horse power " the 
 company, even with municipal 
 consent, cannot change to the 
 overhead trolley electrical system. 
 Haines v. Railway Co. (Pa.), 4 
 Am. Electl. Cas. 42, i Pa. Dist. 
 506, citing Oregon Ry. & Nav. 
 Case, supra. In Louisiana, in 
 United States Circuit Court, it was 
 held that a statute authorizing mu- 
 nicipal authorities to permit the 
 maintenance of " horse and steam 
 railroads," committed to them the 
 discretion to grant a street fran- 
 chise to electric railways, the 
 words " horse and steam " being 
 intended as words of illustration 
 rather than of limitation. Buck- 
 ner v. Hart, 4 Am. Electl. Cas. 21, 
 52 Fed. 83s; aflfd., 54 id. 925. In 
 Pennsylvania, the statute of 1876, 
 which permitted those operating 
 passenger railways in cities of the 
 first class to use other than animal 
 power when authorized by munic«- 
 ipal councils, was held to author- 
 ize the use of the overhead trolley 
 
 electrical system, and not to be 
 unconstitutional as being local or 
 special legislation. Reeves v. 
 Philadelphia Traction Co., 4 Am. 
 Electl. Cas. 24, 152 Pa. St. 153. 
 
 Authority to construct and 
 operate a street railroad confers 
 no power to construct and operate 
 a railroad for the purpose of trans- 
 ferring freight cars. South & N. 
 A. R. Co. V. Highland Ave., etc., 
 Co., 119 Ala. 105, 24 So. 114. 
 
 29. Haines v. Railway Co., 4 
 Am. Electl. Cas. 42. 
 
 30. De Grauw v. Long Island 
 El. R. Co., 43 App. Div. (N. Y.) 
 S02. 
 
 31. IngersoU v. Nassau El. Ry. 
 Co., 157 N. Y. 453, S2 N. E. 545, 
 affg. 89 Hun, 213; Roddy v. Brook- 
 lyn City, etc., R. Co., 32 App. Div. 
 (N. Y.) 311, 314. In the last case 
 cited the right to lease the road 
 was involved, and the court held 
 that the company had, under its 
 charter, a right to lease its tracks, 
 and the right thereby acquired by 
 the lessee could not be thereafter 
 taken away or limited, either by 
 legislative enactment or constitu- 
 
CONDITIONS ANNEXED TO GRANT. 1/ 
 
 operate its cars by such motive power as it might deem 
 consistent and proper," permits the company to use the 
 electric trolley system, although it was unknown when the 
 authority was conferred.^^ 
 
 § 5. Conditions prescribed by Constitution, or annexed to grant; 
 time limit of grant.— In most of the States, the construction 
 and operation of street railroads are hedged about by law, 
 in many instances organic or constitutional, and made de- 
 pendent upon the will of local authorities and abutting prop- 
 erty-owners. In New York the Constitution prohibits a 
 private or local law granting to any corporatioft, association, 
 or individual the right to lay down railroad tracks, and re- 
 quires the legislature to provide for the building and opera- 
 tion of railroads by general laws. It also prohibits any law 
 authorizing the construction or operation 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 con- 
 sent also of the local authorities having the control of, that 
 portion of a street or highway upon which it is proposed to 
 construct or operate such railroad be first obtained, or, in 
 case the consent of such property-owners cannot be obtained, 
 the Appellate Division of the Supreme Court, in the depart- 
 ment in which it is proposed to be constructed, may, upon 
 application, appoint three commissioners who shall deter- 
 
 tional change, except in the proper ity to convey passengers " by any 
 
 exercise of the right of eminent power other than by locomotive," 
 
 domain, or of the police power. authorizes the use of electricity. 
 
 32. Paterson Ry. Co. v. Grundy, Gillett v. Chester, etc., Ry. Co. 
 
 4 Am. Electl. Cas. 173- 59 N. J. (Pa. C. P.), 4 Am. Electl. Cas. 
 
 Eq. 213; Hudson River Telephone 160, 2 Pa. Dist. 450; Ogden City 
 
 Co. V. Watervliet Turnpike & Ry. Ry- Co. v. Ogden City, 4 Am. 
 
 Co., 4 Am. Electl. Cas. 27s, I35 Electl. Cas. 321, 7 Utah, 207, 26 
 
 N. Y. 393, 32 N. E. 148. Author- Pac. 288. 
 2 
 
i8 
 
 STREET SURFACE RAILROADS. 
 
 mine, after a hearing of all parties interested, whether such 
 railroad ought to be constructed or operated, and their de- 
 termination, confirmed by the court, may be taken in lieu 
 of the consent of the property-owners.^s The legislature of 
 a State may, and generally does, prescribe limitations upon 
 the organization and operation of street railroads in addition 
 to those provided by the fundamental law.^'* Generally, it 
 delegates to the municipal authorities the power to impose 
 
 33. N. Y. Const., art. Ill, § 18. 
 The construction and operation of 
 street railroads are prohibited by 
 constitutional provision in Ala- 
 bama, Georgia, Pennsylvania, and 
 South Dakota, without the consent 
 of the local authorities; in Colo- 
 rado, Illinois, Missouri, Montana, 
 North Dakota, and Texas, with- 
 out the consent of the local author- 
 ities having control of the streets 
 or highways proposed to be oc- 
 cupied for the purpose; in Ne- 
 braska, without the consent of a 
 majority of all the electors of the 
 municipality who cast their bal- 
 lots at the general election at 
 which the proposition is and must 
 be submitted. State, Omaha St. 
 Ry. Co. V. Bechel, 22 Nebr. 158, 
 34 N. W. 342. Every State in 
 some way restricts the formation 
 of street railroad companies and 
 makes the use of the highways by 
 them depend, in some degree, 
 upon the consent of the local 
 highway authorities. The con- 
 sent of the selectmen of a town 
 in Massachusetts is not necessary 
 to the construction of a street rail- 
 road upon a turnpike running 
 through the town. District Attor- 
 ney V. Lynn, etc., Ry. Co., 16 Gray 
 (Mass.), 242. An act authorizing the 
 
 construction and maintenance of 
 a street railroad is not unconstitu- 
 tional because it fails to provide 
 means for paying damages to 
 abutting owners in advance. Lock- 
 hart v. Craig St. Ry. Co., 3 Am. 
 Electl. Cas. 314, 139 Pa. St. 419. 
 A private person cannot claim that 
 the charter of a street railroad 
 company is void for constitutional 
 reasons, as the State, only, can 
 inquire into the validity of the 
 charter. Taylor v. Portsmouth, 
 etc., R. Co., 91 Me. 193, 39 Atl. 
 560. 
 
 34. The Georgia Constitution 
 (art. Ill, § 7, par. 20) prohibited 
 the legislature from authorizing 
 the construction of a street rail- 
 road in a city or town without 
 the consent of the corporate au- 
 thorities. Held, that the action of 
 such authorities upon an applica- 
 tion for a street railroad fran- 
 chise is the action of the State; 
 and an ordinance granting such a 
 franchise is passed under author- 
 ity delegated by the State, and is 
 a law of the State within the 
 meaning of the contract clause of 
 the Constitution of the United 
 States. Mercantile Trust & De- 
 posit Co. of Baltimore v. Collins 
 Park & B. R. Co., 99 Fed. 812; 
 
CONDITIONS ANNEXED TO GRANT. 
 
 19 
 
 such conditions and restrictions upon the use of the public 
 highways within their control as to them may seem neces- 
 sary or reasonable. And if these authorities keep within the 
 limits of their statutory powers, the conditions imposed by 
 them, however onerous and difficult to perform, are as bind- 
 ing upon those accepting the franchise thus restricted, as if 
 they were enactments of the State legislature or of the Con- 
 stitution itself.35 But the legislative authority to prescribe 
 the conditions cannot be presumed or implied, and must be 
 expressly conferred unless the consent of the municipal au- 
 thorities to the construction and operation of the road is 
 required. Then these authorities may prescribe reasonable 
 conditions precedent to their consent. The consent once 
 given, they cannot afterward withdraw it or insist upon the 
 performance of some condition then required, unless the 
 legislative act or acts under and subject to which the railroad 
 
 Matter of Thirty-fourth St. R. Co., operated, and kept in repair with- 
 102 N. Y. 343, 7 N. E. 172; Colo- out actual loss, and that the com- 
 nial City Traction Co. v. King- pany should accept the ordinance 
 ston City R. Co., 153 N. Y. 540, within ten days after its approval 
 47 N. E. 810. by the mayor. The ordinance 
 35. People, W. S. St. R. Co. v. was accepted and the road was 
 Barnard, no N. Y. 548, 18 N. E. built and operated to the park. 
 354; Detroit v. Detroit City Ry. In a proceeding to compel the 
 Co., 37 Mich. ss8; St. Joseph Co. construction and operation of the 
 V. South Bend, etc., R. Co., 118 tracks to the city limits the an- 
 Ind. 68; People v. Broadway R. swer of the company showed that 
 Co., 126 N. Y. 29, 48 Am. & Eng. it could not be constructed, oper- 
 R. Cas. 697, 26 N. E. 961. An ated, and kept in repair without 
 ordinance authorized a railroad actual loss, and this fact was ad- 
 company to extend its tracks from mitted by demurrer. It was held 
 its then terminus to the municipal that the answer showed a good 
 limits, and required the track to reason for not compelling the 
 be extended to a certain park, company to build and operate 
 being a point short of the limits, such part of the road. People v. 
 by a given time, and from that Chicago West Div. R. Co., 118 
 point on to the limits so soon as 111. 113, 7 N. E. 116. 
 the same could be constructed, 
 
20 
 
 STREET SURFACE RAILROADS. 
 
 company is organized expressly confer the power. '^ The 
 legislature may also prohibit municipal authorities from 
 granting a franchise or right to use the streets, avenues, 
 parkways, or highways of the municipality for a longer 
 
 36. Re Kings Co. El. R. Co., 
 105 N. Y. 97, 13 N. E. 18; El. 
 Ry. Co. V. City of Grand Rapids, 
 47 N. W. 567. The special char- 
 ters granted in the early history 
 of street railroads in Pennsyl- 
 vania frequently required, as a 
 condition precedent to the right 
 to occupy and use the street, pur- 
 chase and payment for the stock 
 of horses, omnibuses, and other 
 property of persons or corpora- 
 tions owning omnibus lines oc- 
 cupying the streets embraced 
 ■within the franchise or streets 
 parallel thereto; and the courts 
 have held these conditions to be 
 valid, and have rigidly enforced 
 them. See Cooper v. Second & 
 Third St. Pass. Ry. Co., 3 Phila. 
 (Pa.) 262; Moore v. Green, etc., 
 R. Co., id. 210, 417; Deschamps v. 
 Second, etc., R. Co., id. 279; 
 Green, etc., R. Co. v. Moore, 64 
 Pa. St. 79. A railroad company 
 which is granted by the State the 
 right to occupy the streets of a 
 given city on the precedent con- 
 dition that such city shall con- 
 sent thereto, obtains, with the con- 
 sent of the city, the absolute right 
 to occupy such streets, and is not 
 bound by a condition subse- 
 quently imposed by the city as a 
 condition of granting its consent, 
 a failure to comply with which 
 would defeat its right to so oc- 
 cupy the streets. Galveston & W. 
 R. Co. v. Galveston, 91 Tex. 17, 
 36 L. R. A. 44, 39 S. W. 920. The 
 
 " terms and conditions " referred 
 to in the Ohio act, March 30, 
 1877, authorizing inclined plane 
 railway companies to hold and 
 operate railroads leading to or 
 connected with their inclined 
 plane, upon the same terms and 
 conditions on which they hold and 
 operate their inclined planes, are 
 the terms and conditions of the 
 Ohio act. May i, 1852, relating to 
 steam railroads, — the inclined 
 plane railroads being incorporated 
 prior to Ohio act, April 12, 1876. 
 The former act does not extend 
 the life of the grant, under which 
 street railroads acquired by these 
 incline plane railroad companies 
 are operated, or in anywise alter 
 the conditions thereof. Cincin- 
 nati IncHned Plane R. Co. v. Cin- 
 cinnati, 52 Ohio St. 609, 44 N. E. 
 327. 
 
 The power of a city council to 
 grant charters to street railroad 
 corporations does not include the 
 power to give a fixed and vested 
 right, for a period of years, to 
 construct and use a street railroad 
 without compensating adjacent 
 owners. Taylor v. Bay City R. 
 Co., 80 Mich. 77, 43 Am. & Eng. 
 R. Cas. 33S, 45 N. W. 335. If an 
 absolute grant be made to a rail- 
 road company by the city author- 
 ities in the exercise of power con- 
 ferred by the legislature of the 
 right to build its road on certain 
 streets, and the company ac- 
 cepting the grant builds a part of 
 
CONDITIONS ANNEXED TO GRANT. 
 
 21 
 
 period than a time stated, and in such case the granting of 
 consent to a railroad company to operate in certain streets, 
 without any Hmitation as to time, will not be a valid exercise 
 of the power to grant consents for the time limited in the 
 statute.37 A constitutional provision which does not in ex- 
 
 the road at great expense, the 
 legislature may not, by subse- 
 quent amendment of the city 
 charter, make the right of the 
 company to build the residue of 
 the road dependent on the con- 
 sent of the majority of the prop- 
 erty-owners on the street. Hovel- 
 man V. Kansas City R. Co., 79 
 Mo. 632, 20 Am. & Eng. R. Cas. 
 17. A city cannot compel a street 
 railroad company, which, under its 
 charter, has the right to lay its 
 tracks through the streets of the 
 city, to sign a contract imposing 
 stipulations as to the manner of 
 using streets, etc. Frayser v. 
 State, 16 Lea (Tenn.), 671. 
 
 yj. Blaschko v. Wurster, 156 N. 
 Y. 437, SI N. E. 303, aflfg. 23 App. 
 Div. (N. Y.) 62s, 48 N. Y. Supp. 
 iioi. In the case cited section T^ 
 of the charter of Greater New 
 York was considered. That sec- 
 tion is as follows : " After the ap- 
 proval of this act no franchise or 
 right to use the streets, avenues, 
 parkways, or highways of the city 
 shall be granted by the municipal 
 assembly to any person or corpo- 
 ration for a longer period than 
 twenty-five years." 
 
 A limitation on the term of the 
 corporate existence of a street rail- 
 road company does not preclude 
 its capacity to take a grant to 
 itself and assigns of the privilege 
 of operating its road for a longer 
 period than that of its corporate 
 
 life. The city however is not 
 necessarily empowered to grant 
 such an estate. Detroit v. Detroit 
 City R. Co. (C. C. E. D. Mich.), 
 56 Fed. 857, 56 Am. & Eng. R. 
 Cas. Z2T. A street railroad cor- 
 poration never has a legal exist- 
 ence where its charter, naming 
 commissioners to take subscrip- 
 tions to the capital stock, requires 
 the road to be commenced within 
 three years, and completed within 
 ten, but the commissioners delay 
 taking stock subscriptions until 
 nearly ten years after the expira- 
 tion of the ten years allowed for 
 the completion of the road. Bona- 
 parte V. Baltimore H. & L. R. 
 Co. (Md.), 49 Am. & Eng. R. Cas. 
 198, 23 Atl. 784- 
 
 The acceptance by a street rail- 
 road company, whose charter 
 states that it is incorporated for 
 the full term of thirty years, with- 
 out any provision for renewal or 
 extension of an act passed several 
 years before the expiration of the 
 thirty years, continuing the char- 
 ter in force on specified conditions 
 and with certain restrictions for 
 fifty additional years, makes the 
 latter act the charter of the com- 
 pany, and its corporate rights, 
 powers, and privileges are there- 
 after to be measured by its pro- 
 visions. It cannot apply to and 
 obtain from the secretary of state 
 before the expiration of the thirty 
 years an independent renewal of 
 
22 STREET SURFACE RAILROADS. 
 
 press terms repeal a charter or franchise previously granted 
 and exercised, could have no application to modify or limit 
 such charter.3* 
 
 § 6. Authority delegated only for a public use.^ The ground 
 upon which private property may be taken for railroad uses, 
 without the consent of the owner, is primarily that railroads 
 are highways furnishing means of communication between 
 different points, promoting trafific and commerce, facilitat- 
 ing exchanges, in a word that they are improved ways. In 
 every form of government the duty of providing public ways 
 is acknowledged to be a public duty. In New York State 
 the duty of laying out and maintaining highways has, in the 
 main, to be performed directly by the State or by local au- 
 thorities, but from an early day the legislature has from time 
 to time delegated to turnpike corporations the right and 
 duty to maintain public roads in municipalities, and canal 
 companies have been organized with powers of eminent do- 
 main. It would be impracticable and contrary to our usages 
 for the State to enter upon the general business of construct- 
 ing and operating railroads, and, in analogy to the delega- 
 tion of the power of eminent domain to turnpike and canal 
 companies, it wisely delegates to corporate bodies the right 
 to construct and maintain railroads as public ways for the 
 transportation of freight and passengers, and as incident 
 thereto the right to take private property under the power 
 of eminent domain on making compensation. But the 
 power is dormant until the legislature authorizes its exer- 
 
 its charter, under Georgia act, Augusta, loo Ga. 701, 28 S. E. 
 
 December 20, 1893, which applies 126. 
 
 only to corporations whose char- 38. Louisville & N. R. Co. v. 
 
 ters have expired or are about to Bowling Green Ry. Co. (Ky.), 63 
 
 expire. Augusta St. R. Co. v. S. W. 4. 
 
DELEGATION ONLY FOR PUBLIC USE. 23 
 
 cise, and the particular corporation which claims the right 
 to exercise the power must be able to show the legislative 
 warrant, and that being shown, it must be able further to 
 establish, if the right is challenged, that the particular scheme 
 in which it is engaged is a railroad enterprise within the true 
 meaning of the decisions which justify the taking of private 
 property for railroad purposes, or that the business which 
 it is organized to carry on is public, and that the taking of 
 private property for the purposes of the corporation is a 
 taking for public use. The general principle is now well 
 settled that when the uses are in fact public, the necessity 
 or expediency of taking private property for such uses by 
 the exercise of the power of eminent domain, the instrumen- 
 talities to be used and the extent to which such right shall 
 be delegated are questions appertaining to the political and 
 legislative branches of the government, while on the other 
 hand the question whether the uses are in fact public, so as 
 to justify the taking in invifum of private property therefor, 
 is a judicial question to be determined by the courts.^^ The 
 contemplated possible limited use of a few, and not then as a 
 right, but by way of permission or favor, is not a public use.*" 
 A railroad corporation organized for a public use cannot 
 permit its franchise to be used as a mere cover for a private 
 enterprise, even though it continue also to use the road as a 
 street surface railroad for the carriage of passengers for 
 hire.4' In New York the power and the duty to hear and 
 
 39. Matter of Niagara Falls & Y. 441, 7 N. E. 307- In State v. 
 Whirlpool R. Co., 108 N. Y. 375, Trenton, 36 N. J. L. 79. the court, 
 383, 38s, IS N. E. 429; Beekman per Van Syckel, J., said: 
 V. Third Ave. R. Co., 153 N. Y. " Streets and highways are in- 
 144, 47 N. E. 277. tended for the common and equal 
 
 40. Matter of S. R. C. R. Co., use of all citizens, to which end 
 128 N. Y. 408, 28 N. E. S06. they must be regulated. An ap- 
 
 41. Fanning v. Osborn, 102 N. propriation of them to private, in- 
 
24 
 
 STREET SURFACE RAILROADS. 
 
 decide the question of public convenience and necessity, at 
 the very beginning of the corporate life of a railroad corpora- 
 tion is conferred upon the state board of railroad com- 
 missioners.''^ 
 
 § 7. The delegated authority cannot be implied. — When a 
 railroad company relies upon a legislative act as a justifica- 
 tion for an encroachment upon public or private rights, it 
 must show that the statute authorized the encroachment in 
 express terms or by clear and unquestionable implication.** 
 
 dividual uses, from which the pub- 
 lic derive no convenience, benefit, 
 or accommodation, is not a regu- 
 lation, but a perversion of them 
 from their lawful purposes, and 
 cannot be regarded as an execu- 
 tion of the trust imposed in the 
 city authorities." In Chicago 
 Dock, etc., Co. v. Garrity, 115 III. 
 155, 3 N. E. 448, it was held that 
 railway tracks leading to private 
 warehouses might be a public use 
 in such a sense as to justify their 
 being laid on the city streets. 
 Mikesell v. Durkee, 34 Kan. 509, 
 9 Pac. 278; Glaessner v. An- 
 heuser-Busch Brewing Assn., 100 
 Mo. 508, 13 S. W. 707; Heath v. 
 Des Moines, etc., Ry. Co., 61 
 Iowa, II, IS N. W. 573; Macon v. 
 Harris, 75 Ga. 761; State v. 
 Trenton, 36 N. J. L. 79. A street 
 railroad company has no power 
 to make a contract leasing space 
 inside and outside its cars for ad- 
 vertising purposes. Pittsburg & 
 B. Traction Co. v. Seidell, 6 Pa. 
 Dist. (C. P.) 414, 27 Pittsb. L. J. 
 (N. S.) 441, 19 Pa. Co. Ct. 463- 
 In a recent case the New York 
 Court of Appeals said: "But a 
 statute is not to be condemned 
 
 on the ground that it origi- 
 nated in private interests and 
 was intended in some degree to 
 subserve private purposes. If 
 every act originating in such 
 motives should be declared void 
 it is to be feared that there are 
 too many statutes that would not 
 stand such a searching test. So 
 long as the use intended is not 
 restricted to private parties or pri- 
 vate interests, but is open to the 
 whole public, it is no valid ob- 
 jection to the act that it will bene- 
 fit one person, or some class of 
 persons, more than others. The 
 question as to whether in any 
 given case the use is public or pri- 
 vate is judicial, and must be deter- 
 mined in the end by the courts. 
 Matter of Burns, 155 N. Y. 23, 
 49 N. E. 246. And see Qarke v. 
 Blackmar, 47 N. Y. 150. 
 
 42. N. Y. Gen. Laws, chap. 39, 
 art. II, § 59 (chap. 565 of 1890), 
 3 Heydecker's Gen. Laws of N. Y. 
 (2d ed.) 3287; People ex rel. 
 Steward v. Railroad Comrs., 160 
 N. Y. 202, 211. 
 
 43- Delaware, L. & W. R. Co. 
 V. City of Bufifalo, 158 N. Y. 266, 
 272, 53 N. E. 44; People, Bacon 
 
DELEGATION CANNOT BE IMPLIED. 
 
 25 
 
 From the authority given to municipaUties to lay out, open, 
 alter, repair, and amend and regulate streets, lanes, alleys, 
 and highways, and direct the draining, pitching, and paving 
 of them, and to do everything to facilitate public travel 
 thereon, the right to convert a street or a part of a street 
 into a new piece of machinery for transporting persons, with 
 which the existence of a street has no natural or necessary 
 connection, cannot be implied.'** There is good authority 
 
 V. N. C. Ry. Co., 164 N. Y. 289, 
 298. 
 
 44. Davis V. The Mayor, 14 N. 
 Y. 506, 517. In the case cited the 
 court, per Denio, C. J., said: 
 " It has been laid down in the case 
 in Kentucky (Lexington & Ohio 
 R. Co. V. Applegate, 8 Dana [Ky.], 
 289) and in Williams v. The New 
 York Central R. Co., 18 Barb. 
 (N. Y.) 222; revd., 16 N. Y. 97, 
 it may be said to have been de- 
 cided by the Supreme Court of 
 this State, that the laying a rail- 
 road in a street or highway is only 
 a new and improved method of 
 making use of the public ease- 
 ment over lands dedicated or ap- 
 propriated, pursuant to law, for a 
 street or highway. This doctrine 
 has been predicated by what is 
 truly said to be the plastic and 
 accommodating nature of the com-, 
 mon law. That system of juris- 
 prudence is, no doubt, a code of 
 principles, as distinguished from 
 one of positive and arbitrary 
 prescriptions, and where a doc- 
 trine of common law can, without 
 violence, be applied to a state of 
 things brought into existence by 
 the change of times or the prog- 
 ress of civilization, it may often 
 be properly applied, though the 
 
 facts are circumstantially different 
 from those which existed when 
 the rule was originally estab- 
 lished. But the difference be- 
 tween a highway in the country, 
 or a street in a city or village, 
 and the modern contrivance of 
 transporting persons by railroad 
 cars running upon a grooved iron 
 track, is, in my judgment, radi- 
 cal in its nature, and is not ca- 
 pable of being subjected to the 
 same legal rules. The legislature 
 appears to have taken the same 
 view of the subject which I enter- 
 tain, for whenever it has been 
 considered necessary or proper to 
 allow a highway or street to be 
 used to any extent for the pur- 
 pose of a railroad, the right has 
 been conferred in express terms. 
 (Pages 518, 519-) " 
 
 Covington St. Ry. Co. v. Cov- 
 ington, 9 Bush (Ky.), 127; Attor- 
 ney-General V. Lombard, etc., Ry. 
 Co., 10 Phila. (Pa.) 352; Coleman 
 V. Second Ave. R. Co., 38 N. Y. 
 201. The New Jersey Subways 
 Act (Pamph. L. 78), the object ex- 
 pressed in the title of which is 
 " the placing of electrical con- 
 ductors underground," does not, 
 nor was it under such title com- 
 petent for the legislature to, em- 
 
26 
 
 STREET SURFACE RAILROADS. 
 
 however for the proposition that the ordinary powers of 
 municipal corporations are ample enough, in the absence 
 of express or other legislation on the subject indicating a 
 dififerent intent, to authorize them to permit or refuse to 
 permit the use of streets within their limits for horse rail- 
 roads/' But an act conferring power on a city council to 
 make ordinances concerning nuisances, lighting and regu- 
 lation of streets, the regulation of rights of way, street cars. 
 
 power the board of subway com- 
 missioners to grant a franchise to 
 erect poles and wires in streets. 
 The ofifice and eflfect of that legis- 
 lation relate to the control and 
 regulation of such franchises de- 
 rived from other competent au- 
 thority. Trustees, etc. v. Board 
 of Subway Comrs., 4 Am. Electl. 
 Cas. 13s, 55 N. J. L. 436. A pro- 
 vision in a charter of a street rail- 
 way company authorizing it, in 
 addition to laying its roads on 
 streets designated therein, to build 
 extensions from any of its lines 
 on any other streets to which the 
 municipal authorities may con- 
 sent, does not authorize it to 
 deviate from the charter route. 
 Citizens' St. Ry. Co. v. Africa, 
 100 Tenn. 26, 42 S. W. 485. 
 
 45. 2 Dill. Mun. Corp. (4th ed.), 
 § 724 (57s); State V. Corrigan St. 
 R. Co., 8s Mo. 275, 29 Am. & Eng. 
 R. Cas. 596, 55 Am. Rep. 366; 
 Atchison St. R. Co. v. Missouri 
 Pac. R. Co., 31 Kan. 660, 668, 3 
 Pac. 284, 14 Am. & Eng. R. Cas. 
 444; State v. Mayor, etc., of 
 Hoboken, 30 N. J. L. 225; Texas, 
 etc., R. Co. v. Rosedale St. R. Co., 
 64 Tex. 80, 22 Am. & Eng. R. Cas. 
 160, 53 Am. Rep. 739; Mayor, etc. 
 V. Houston City St. R. Co. (Tex.), 
 
 50 Am. & Eng. R. Cas. 280; Brown 
 V. Du Plessis, 14 La. Ann. 854. 
 
 An ordinance granting to a street 
 railroad company the right to con- 
 struct and operate a street railway, 
 using either horse or steam power, 
 was held void as being beyond the 
 power of the municipality. Stange 
 V. Hill, etc., R. Co., 54 Iowa, 669, 
 7 N. W. 115. In Eichels v. Evans- 
 ville St. R. Co., 78 Ind. 263, 50 Am. 
 & Eng. R. Cas. 274, 41 Am. Rep. 
 562, the court, per Elliott, C. J., 
 said: "There is no provision in 
 the original charter nor in any of 
 the various acts amending it con- 
 ferring power to grant to either 
 steam or horse railway companies, 
 the right to use the streets of the 
 city. The ordinary and constitu- 
 tional powers of a municipal cor- 
 poration are not broad enough to 
 include the power to grant to a 
 railway company the right to lay 
 tracks and conduct the business 
 of transporting passengers upon 
 and over the streets of the mu- 
 nicipality. Such a power is an 
 extraordinary one, and one which 
 cannot be implied from the char- 
 ter of a municipal corporation, 
 which confers only the usual pow- 
 ers ordinarily bestowed upon such 
 corporations." 
 
DELEGATION CANNOT BE IMPLIED. 
 
 27 
 
 Street railways, and all other railroads, and granting power 
 to impose certain fines for the violation of the ordinance 
 made thereunder, is intended to provide police regulations, 
 and does not give the city council authority to grant a fran- 
 chise to a railway company to construct its track on streets 
 of the city; and an ordinance thereunder granting such priv- 
 ilege is void/6 And it may be said generally that unless a 
 power is necessarily incident to the general powers expressly 
 conferred by the charter it is withheld.*'' An authority 
 vested by law in a city council to make a grant cannot be 
 delegated by it to an officer or a board of officers having 
 no legislative powers.''* The authority given to the city 
 
 46. Louisville N. R. Co. v. 
 Mobile, etc., R. Co., 25 So. 895. 
 
 Certain Kansas statutes empow- 
 ered city councils to open and im- 
 prove the streets, avenues, and 
 alleys, prevent encroachments, re- 
 move obstructions, regulate the 
 planting and protection of shade 
 trees, building of doorways, awn- 
 ings, hitching-posts, and railroads, 
 and all other structures projecting 
 on, and over, and adjoining,- and 
 all other excavations through and 
 under the sidewalks or along any 
 street of the city, and to enact, 
 originate, modify, or repeal any 
 or all ordinances repugnant to the 
 Constitution and laws of the 
 State, and such as it should deem 
 expedient for the good govern- 
 ment of the city, preservation of 
 business and good order, the sup- 
 pression of vice and immorality, 
 the benefit of trade and commerce, 
 and the health of the inhabitants 
 thereof, and such other ordi- 
 nances, rules, and regulations as 
 might be necessary to carry such 
 
 power into effect. A street rail- 
 road was constructed under a city 
 ordinance passed under this gen- 
 eral authority, and the question of 
 the power of the council to make 
 the ordinance authorizing the con- 
 struction of the road was raised. 
 The court said: " Under the gen- 
 eral control over the streets and 
 alleys given to cities of the second 
 class by chapter 19 (Comp. Laws, 
 1879) the city council had the 
 power to grant to a street railway 
 company permission to construct 
 and operate a street railway on the 
 streets of the city, and a track 
 constructed by virtue of such per- 
 mission was lawfully occupying the 
 street." Atchison St. Ry. Co. v. 
 Missouri Pac. St. Ry. Co., 31 
 Kan. 660, 3 Pac. 284. 
 
 47. State V. Corrigan, etc., Co., 
 8s Mo. 263; Forman v. New Or- 
 leans, etc., Ry. Co., 40 La. Ann. 
 446, 4 So. 246; Birmingham, etc., 
 Ry. Co. V. Birmingham St. Ry. 
 Co., 79 Ala. 46s, 470. 
 
 48. Potter V. Collis, 156 N. Y. 
 
28 STREET SURFACE RAILROADS. 
 
 council cannot be extended to authorize a grant to an indi- 
 vidual of a right to construct a private railroad across or 
 along a street for his own particular benefit ;''5 nor to give 
 franchises to so many companies that the street will be vir- 
 tually closed to public travel except upon the railroads. 5° A 
 railroad corporation is particularly called upon to consult 
 the public convenience, and what is done by it in that direc- 
 tion should be sustained, if support for the act is possible to 
 be found in the law of its being. If a reasonable necessity 
 exists in a proper discharge of its duties to the public, for 
 the act complained of, that should be a sufficient answer to 
 the complaint. What a corporation may, or may not, do 
 within its grant of powers, is to be determined by the reason- 
 able intendments of its charter, as well as by its clear expres- 
 sions of authority. In a doubtful case of an exercise of 
 power search should be made for what may be reasonably 
 implied as a means of carrying out the powers specifically 
 given so as to permit of the amplest exercise thereof which 
 
 i6, so N. E. 413; State, Hender- outs on either side of said center 
 
 son V. Bell, 34 Ohio St. 194; line as they may find necessary," 
 
 Citizens' St. Ry. Co. v. Jones will not validate the location and 
 
 (Ark.), 34 Fed. 579. Under a pro- construction of turnouts by the 
 
 vision in a street railroad com- railroad company. Concord v. 
 
 pany's charter to the effect that Concord H. R. Co., 65 N. H. 30, 
 
 the railroad should be laid out by i8 Atl. 87. 
 
 the mayor and the aldermen of 49. Heath v. Des Moines, etc., 
 the city "in like manner as high- R. Co., 61 Iowa, 11, 15 N. W. 573, 
 ways are laid out," the mayor and 10 Am. & Eng. R. Cas. 313; Mem- 
 aldermen must direct the manner phis City R. Co. v. Memphis, 4 
 and place of laying the track and Coldw. (Tenn.) 406; Carli v. Still- 
 cannot delegate their power so to water St. R., etc., Co., 28 Minn, 
 do; and therefore where they lay 373, 10 N. W. 205, 3 Am. & Eng. 
 out a single track, but without R. Cas. 226, 41 Am. Rep. 290. 
 turnouts, their direction that 50. Street R. Co. v. West Side 
 " said horse railroad company St. R. Co., 48 Mich. 433, 12 N. W. 
 may construct such suitable turn- 643, 7 Am. & Eng. R. Cas. 95. 
 
CURATIVE ACTS. 
 
 29 
 
 is consistent with the object and purpose of the public 
 grant. 5' 
 
 § 8. Curative acts, validating exercise of authority. — The 
 power of the legislature over all municipal corporations is 
 unlimited, save by the restrictions of the State and Federal 
 Constitutions.^^ There is nothing in the Constitution of 
 the United States which prohibits the legislature of a State 
 from passing any act which divests rights vested by law, pro- 
 
 51. Brooklyn Ry. Co. v. Brook- 
 lyn, 152 N. Y. 244-250, 46 N. E. 
 509. In the case cited a judgment 
 had been rendered restraining the 
 defendant from interfering with 
 the plaintiff in the construction of 
 tracks to connect its car store- 
 house on a city street not named 
 in its articles of association with 
 its railroad. A majority of the 
 abutting owners had consented 
 and the storehouse was located 
 upon the only vacant land avail- 
 able. The franchise of the rail- 
 road, after describing the route of 
 the railroad to be from the inter- 
 section of Court and Montague 
 streets, in the city of Brooklyn, 
 through Montague street to a ter- 
 minus at Wall street ferry, gave 
 " authority to construct and main- 
 tain in said street and in such 
 parts of those adjacent thereto as 
 may be necessary, all necessary 
 connections, switches, sidings, 
 turnouts, turntables, and suitable 
 stations for the convenient opera- 
 tion of said road and the housing 
 and care of its cars and other 
 equipments, and the connecting 
 said road with its power station. 
 It further provided that no cars 
 should be housed or stored on the 
 
 main line of Montague street, or 
 any of the adjacent streets, at any 
 place east of the top of the hill 
 leading to Wall street ferry. The 
 plaintiff completed its road and 
 entered upon its operation, but it 
 had no adequate, nor suitable, 
 place for housing its cars. For the 
 purpose of a power station and of 
 a storehouse for its cars it bought 
 a plot of land on a street lying 
 some 1,270 feet south of Mon- 
 tague street, and in order to haul 
 its cars from the terminus of its 
 road, at Wall street ferry to the 
 storehouse, it contracted with the 
 Brooklyn City Railroad Company 
 for the use of its tracks upon a 
 street which runs along the river 
 and intersects Montague and State 
 streets, and also obtained the con- 
 sents of more than a majority in 
 value of the property-owners 
 along the proposed route of con- 
 nection with the storehouse. 
 Thereupon the city interfered and 
 endeavored to prevent the plaintifif 
 from making the necessary con- 
 nection and the action was brought 
 to restrain the interference and 
 was upheld." 
 
 52. Williams v. Egelston, 170 U. 
 S. 304-312, 42 L. Ed. 1047. 
 
30 STREET SURFACE RAILROADS. 
 
 vided its effect be not to impair the obligation of a con- 
 tract.53 The only limitation upon the power of the legisla- 
 ture of a State to pass retrospective laws is that the Consti- 
 tution of the United States forbids passage of ex post facto 
 laws which are retroactive penal laws. But a law merely 
 divesting antecedent vested rights of property, where there 
 is no contract, is not inconsistent with the Federal Constitu- 
 tion." Where the legislature had the power to authorize 
 the act, it can, by retrospective legislation, cure the evils aris- 
 ing from the irregular execution of such power.ss The gen- 
 eral and established rule in relation to curative statutes seems 
 to be that if the thing omitted, which constitutes the defect 
 sought to be removed, 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 a mode which the legislature might 
 have made immaterial by a prior statute, it may do so by a 
 later one. It may thus ratify a contract of a municipal cor- 
 poration for a public purpose and establish municipal ordi- 
 nances and proceedings irregularly adopted or instituted.^^ 
 
 53. Randall v. Krieger, 90 U. S. & Eng. R. Cas. 326; People v. Los 
 (23 Wall.) 137-1S0, 23 L. Ed. 124. Angeles El. R. Co., 91 Cal. 338, 
 
 54. So held where the legisla- 27 Pac. 673; Nash v. Lowry, 37 
 ture of Maryland set aside a con- Minn. 261, 33 N. W. 787. In the 
 demnation proceeding and a judg- case last cited the common coun- 
 ment condemning the property cil of St. Paul, by ordinance, 
 and awarding damages, and di- granted a franchise for the con- 
 rected a new assessment. Balti- struction of a street railway, which 
 m.ore & Susquehanna R. Co. v. was in excess of its authority; 
 Nesbet, 10 How. (U. S.) 39s, 13 subsequently the ordinance was 
 L. Ed. 459. made valid by the legislature, and 
 
 55. People V. Mitchell, 35 N. Y. it was held that thereafter the 
 SSi; Williams v. Duanesburgh, 66 common council could not rescind 
 id. 129, 137; Kittinger v. Buffalo or revoke the right so granted. 
 Traction Co., 160 id. 377, 384, 54 56. Hatzung v. Syracuse, 92 Hun 
 N. E. 1081; McCartney v. Bank, (N. Y.), 203, 208; Duanesburgh v. 
 etc., R. Co., 112 111. 611, 29 Am. Jenkins, 57 N. Y. 177. 
 
CURATIVE ACTS. 
 
 31 
 
 In the absence of any constitutional restrictions it may, by 
 retrospective statutes, legalize the unauthorized acts and 
 proceedings of subordinate local agencies where it might 
 have previously authorized such acts and proceedings-^^ In 
 short, it is competent for the legislature by curative laws, 
 when not restrained by constitutional provisions, to make a 
 void thing valid.'^ While all defects in the process of organ- 
 ization and formation of a railroad corporation may be cured 
 
 57. BoUes v. Brimfield, 12a U. 
 S. 759-765, 30 L. Ed. 789; Jones- 
 boro V. Cairo, etc., R. Co., no 
 U. S. 192-200, 28 L. Ed. 116; At- 
 torney-General V. Chicago & 
 Evanstown Ry. Co., 112 111. 611; 
 People V. Los Angeles El. Ry. 
 Co., 91 Cal. 338, 27 Pac. 673. An 
 ordinance granting a franchise for 
 the construction of a street rail- 
 road was adopted by the common 
 council of St. Paul and subse- 
 quently by the legislature of Min- 
 nesota " confirmed and validated." 
 Held, that thereafter the common 
 council could not rescind or re- 
 voke the right so granted. Nash 
 V. Lowry, 37 Minn. 261, 33 N. W. 
 787. Certain grants or contracts 
 under which inclined plane com- 
 panies heliJ a street railway at the 
 time of its passage were validated 
 by Ohio act, March 30, 1877, 
 granting to such companies the 
 power to hold, lease, or purchase 
 and maintain and operate street 
 railroads. Louisville Trust Co. v. 
 Cincinnati (C. C. App. 6th), 22 
 C. C. A. 234, 47 U. S. App. 26, 
 76 Fed. 296. 
 
 58. Walpole v. Elliott, 18 Ind. 
 258; Morris v. State, 62 Tex. 728; 
 Mason v. Spencer, 35 Kan. 512, 
 
 II Pac. 402; Walter v. Town of 
 Union, 53 N. J. L. 350. A munic- 
 ipal ordinance granted to a street 
 railroad company the right to con- 
 struct and operate the road, using 
 either horse or steam power; it 
 was held void as being beyond 
 the power of the municipality 
 which could not authorize the use 
 of the street by a steam railroad 
 without compensation to the own- 
 ers of abutting property. Stange 
 v. Hill, etc., R. Co., 54 Iowa, 669, 
 7 N. W. 115; Stanley v. Daven- 
 port, 54 Iowa, 463, 2 N. W. 1064, 
 6 id. 706, 37 Am. Rep. 216. An 
 act validating the ordinance by 
 granting power to pass it was held 
 void by reason of the constitu- 
 tional provision against special 
 legislation. Stange v. Dubuque, 62 
 Iowa, 303, 17 N. W. 518, 14 Am. 
 & Eng. R. Cas. 107. In Ohio a 
 validating act was held inefifectual 
 because its operation enabled the 
 municipal officers to evade the gen- 
 eral statutory provision requiring 
 the franchise to be granted to the 
 highest bidder. Knorr v. Miller, 
 5 Ohio C. C. 609, 623; Mitchell 
 V. Deeds, 49 111. 416, 95 Am. Dec. 
 621. 
 
32 STREET SURFACE RAILROADS. 
 
 by legislative recognition/' it cannot thus create a corpora- 
 tion where one de facto did not exist.*" 
 
 § 9. Charter, a contract; how construed. — The whole doctrine 
 of vested rights as applied to the charters of corporations is 
 based upon Dartmouth College v. Woodward,*' in which 
 the broad proposition was laid down that such charters were 
 contracts within the meaning of the Constitution, and hence 
 that an act of the State legislature altering a charter in any 
 material respect was unconstitutional and void. The doc- 
 trine of this case has been subjected to more or less criticism 
 by the courts and the provision has been reaffirmed and ap- 
 plied so often as to become firmly established as a canon of 
 American jurisprudence.*^ Subsequent cases have settled 
 the law that, wherever property rights have been acquired 
 by virtue of a corporate charter, such rights, so far as they 
 are necessary to the full and complete enjoyment of the main 
 object of the grant, are contracts, and beyond the reach of 
 destructive legislation.*^ So, a statute repealing the charter 
 of a street railroad company and transferring its franchise 
 and track to another impairs the obligation of the contract 
 of the charter, unless there is reserved to the legislature the 
 right to repeal the statute under which the company was 
 
 59. Caugh V. North Ave. R. R. Co. v. Cook, 29 111. 237; At- 
 
 Co. (Md.), 33 Atl. 463; McAuley lantic, etc., R. Co. v. St. Louis, 
 
 V. Columbus, etc., R. Co., 83 111. 3 Mo. App. 315; affd., 66 Mo. 228. 
 
 348; McCartney v. Chicago, etc., 60. Attorney-General v. Chicago, 
 
 R. Co., 112 id. 611, 29 Am. & Eng. etc., R. Co., 35 Wis. 602. 
 
 R. Cas. 326; Black River, etc., R. 61. 17 U. S. (4 Wheat.) 518, 4 
 
 Co. V. Barnard, 31 Barb. (N. Y.) L. Ed. 629. 
 
 258; Baltimore, etc., R. Co. v. 62. Pearsall v. Great Northern 
 
 Marshall Co., 3 W. Va. 319; Cow- R. Co., 161 U. S. 646, 660, 40 L. 
 
 ell V. Colorado Springs Co., 100 Ed. 838, 843. 
 
 U. S. (10 Otto) SS-61, 25 L. Ed. 63. Pearsall v. Great Northern 
 
 547- 3 Colo. 82; Mead v. N. Y., etc.. R. Co., 161 U. S. 646, 661, 40 L. 
 
 R. Co., 45 Conn. 199; Illinois, etc., Ed. 838, 843. 
 
CHARTER, A CONTRACT. 33 
 
 organized.*'* The United States Supreme Court has had 
 perhaps more frequent occasion to assert the inviolability of 
 corporate charters in cases respecting the power of taxation 
 than in any other, and in a long series of decisions has held 
 that the clause imposing certain taxes in lieu of all other 
 taxes, or of all taxes to which the company or stockholders 
 therein would be subject, is impaired by legislation raising 
 the rate of taxation, or imposing taxes other than those 
 specified in the charter.^5 Within the same principle are 
 grants of an exclusive right to supply gas or water to a munic- 
 ipality, or to occupy its streets for railway purposes.** So, 
 if a company be chartered with power to construct and main- 
 tain a turnpike, erect tollgates, and collect tolls, such fran- 
 chise is protected by the Constitution. ^^ In these cases how- 
 ever the title to property had either become vested in the 
 grantee by operation of law, or the exercise of the power 
 granted was so far necessary to the full enjoyment of the 
 
 64. Greenwood v. Union Freight R. Co., 161 U. S. 646, 663, 40 L. 
 R. Co., 105 U. S. 646, 661, 40 L. Ed. 838, 844; New Orleans Gas 
 Ed. 838, 843. Light Co. V. Louisiana, etc., Mfg. 
 
 65. Pearsall v. Great Northern Co., 115 U. S. 650, 29 L. Ed. 517; 
 R. Co., 161 U. S. 646, 662, 40 L. New Orleans Water Works Co. 
 Ed. 838, 843; Piqua Branch of v. Rivers, 115 U. S. 674, 29 L. Ed. 
 State Bank v. Knoop, 57 U. S. 525; Louisville Gas Co. v. Citi- 
 (16 How.) 369, 14 L. Ed. 977; New zens' Gas Light Co., iiS U. S. 683, 
 Jersey v. Wilson, 11 U. S. (7 29 L. Ed. 510; St. Tammany Water 
 Cranch) 164, 3 L. Ed. 303; Gordon Works Co. v. New Orleans Water 
 V. App. Tax Court, 44 U. S. (3 Works Co., 120 U. S. 64, 30 L. 
 How.) 133, II L. Ed. 529; Dodge Ed. 564; Boston & L. R. Corp. v. 
 V. Woolsey, 59 U. S. (18 How.) Salem & L. R. Co., 2 Gray 
 631, IS L. Ed. 401; Wilmington & (Mass.), i. 
 
 W. R. Co. V. Reid, 80 U. S. (13 67. Pearsall v. Great Northern 
 
 Wall.) 264, 20 L. Ed. 568; New R. Co., 161 U. S. 646, 663, 40 L. 
 
 Jersey v. Yard, 95 U. S. 104, 24 L. Ed. 838, 844; St. Clair County 
 
 Ed. 352; St. Anna's Asylum v. Turnp. Co. v. Illinois, 96 U. S. 63, 
 
 New Orleans, 105 U. S. 362, 26 24 L. Ed. 651; Monongahela Nav. 
 
 L. Ed. 1 128. Co. V. United States, 148 U. S. 
 
 66. Pearsall v. Great Northern 312, 7!7 L. Ed. 465. 
 
34 STREET SURFACE RAILROADS. 
 
 main object of the charter that persons subscribing to the 
 stock might be presumed to take into consideration, and be 
 influenced in their subscription, by the fact that the corpora- 
 tion was endowed with those privileges during the continu- 
 ation of the charter.*^ Such hmitations however upon the 
 power of the legislature must be construed in subservience 
 to the general rule that grants by the State are to be con- 
 strued strictly against the grantees, and that nothing will be 
 presumed to pass except it be expressed in clear and unam- 
 biguous language.*' Hence an exclusive right to enjoy a 
 certain franchise is never presumed, and unless the charter 
 contain words of exclusion it is no impairment of the grant 
 to permit another to do the same thing, although the value 
 of the franchise to the first grantee may be wholly de- 
 stroyed.''" Nor does it follow, from the fact that the contract 
 evidenced by the charter cannot be impaired, that the power 
 of the legislature over such charter is wholly taken away, 
 since statutes which operate only to regulate the manner in 
 which the franchises are to be exercised, and which do not 
 interfere substantially with the enjoyment of the main object 
 of the grant, are not open to the objection of impairing the 
 contract. A familiar instance of this class of legislation is 
 that enacted under what is known as the poHce power. In 
 virtue of this the statute may prescribe regulations contriB- 
 
 68. Pearsall v. Great Northern Ed. 838, 844; Charles River Bridge 
 R. Co., 161 U. S. 646, 664, 40 L. Proprs. v. Warren Bridge Proprs., 
 Ed. 838, 844. 36 U. S. (II Pet.) 420, 9 L. Ed. 
 
 69. Pearsall v. Great Northern 773; Wash. & B. Turnp. Co. v. 
 R. Co., 161 U. S. 646, 664, 40 L. Maryland, 70 U. S. (3 Wall.) 210, 
 Ed. 838, 844; Northwestern Per- 18 L. Ed. 180; Pennsylvania R. 
 tihzing Co. V. Hyde Park, 97 U. Co. v. Miller, 132 U. S. 75, 33 L. 
 S. 6S9, 24 L. Ed. 1036. Ed. 267; Detroit Citizens' R. Co. 
 
 70. Pearsall v. Great Northern v. Detroit Ry. Co., 171 U. S. 48, 
 R. Co., 161 U. S. 646, 664, 40 L. 43 L. Ed. 67. 
 
CHARTER, A CONTRACT. 35 
 
 iiting to the comfort, safety, and health of passengers, the 
 protection of the pubHc at highway crossings or elsewhere, 
 the security of owners of adjacent property by requiring the 
 track to be fenced, and such appliances to be annexed to the 
 engines as shall prevent the communication of fire to neigh- 
 boring buildings.^' The contract protected by this clause 
 must also be founded upon a good consideration. If it be 
 a mere nude pact, a bare promise to allow a certain thing to 
 be done, it will be construed as a revocable license.'^ So a 
 bare, unexecuted power to consolidate with other corpora- 
 tions, a power which, if it exists, would authorize a railroad 
 ■corporation to absorb, by successful and gradual accretions, 
 the entire railway system of the country, is, so long as it 
 remains unexecuted, within the control of, and subject to 
 revocation by the legislature, at least so far as it applies to 
 parallel or competing lines.^^ Where the charter authorizes 
 the company in sweeping terms to do certain things which 
 are necessary to the main object of the grant, and not di- 
 rectly and immediately within the contemplation of the par- 
 ties thereto, the power so conferred, so long as it is unexe- 
 
 71. Pearsall v. Great Northern 779; Atchison, etc., R. Co. v. 
 
 R. Co., 161 U. S. 646, 66s, 40 L. Matthews, 174 U. S. 96, 43 L- Ed. 
 
 Ed. 838, 845; Butchers' Benev. 909. 
 
 Assn. V. Crescent City L. S. L. 72. Pearsall v. Great Northern 
 
 & S. H. Co. (Slaughter-House R. Co., 161 U. S. 646, 667, 40 L. 
 
 Cases), 83 U. S. (16 Wall.) 36, 21 Ed. 838, 84s; Christ Church v. 
 
 L. Ed. 394; Boston Beer Co. v. Philadelphia Co., 65 U. S. (24 
 
 Massachusetts, 97 U. S. 25, 24 L. How.) 300, 16 L. Ed. 602; St. 
 
 Ed. 989; Paterson v. Kentucky, 97 Clair Tump. Co. v. Illinois, 96 
 
 U. S. 501, 24 L. Ed. 1116; Barbier U. S. 63, 24 L. Ed. 651; Philadel- 
 
 V. Conolly, 113 U. S. 27, 28 L. Ed. phia & G. F. Pass. R. Co.'s App., 
 
 923; Charlotte, C. & A. R. Co. v. 102 Pa. St. 123. 
 
 Gibbes, 142 U. S. 386, 35 L- Ed. IZ- Pearsall v. Great Northern 
 
 1052; Lawton v. Steele, 152 U. S. R. Co., 161 U. S. 646, 672, 40 L. 
 
 133, 38 L. Ed. 385; Eagle Ins. Co. Ed. 838, 847. 
 V. Ohio, IS3 U. S. 446, 38 L. Ed. 
 
36 
 
 STREET SURFACE RAILROADS. 
 
 cuted, is within the control of the legislature and may be 
 treated as a license, and may be revoked if a possible exer- 
 cise of such power is found to conflict with the interests of 
 the public/'* Statutes conveying franchises and special priv- 
 ileges belonging to the public should be construed most 
 favorably to the people; and all reasonable doubts in con- 
 struction should be solved against the person claiming under 
 the grant; and words or phrases which are ambiguous or 
 admit of dififerent meanings are to receive a construction 
 most favorable to the public.'^ Such a rule of construction 
 
 74. Pearsall v. Great Northern 
 R. Co., 161 U. S. 646, 674, 40 L. 
 Ed. 838, 847. An obligation to 
 maintain a street railroad is not 
 imposed by the grant of a mere 
 privilege to construct and maintain, 
 it. San Antonio St. Ry. Co. v. 
 State, Elmendorf, go Tex. 520, 35 
 L. R. A. 662, 6 Am. & Eng. R. 
 Cas. (N. S.) 658, 39 S. W. 926. 
 
 Where the charter of a street 
 railroad company provides that it 
 may lay tracks along such streets 
 as the municipal corporation shall 
 authorize, such authority, when 
 given, constitutes a contract which 
 cannot be rescinded by a subse- 
 quent act of such municipal corpo- 
 ration. People v. Chicago West 
 Div. R. Co., 18 111. App. I2S. 
 
 75. Trustees of East Hampton 
 V. Vail, 151 N. Y. 463, 472, 45 N. 
 E. 1030; People V. B. R. R. Co., 
 126 N. Y. 29, 37, 26 N. E. 961; 
 Barrett v. Stockton & D. R. Co., 
 2 M. & G. 134; Stourbridge 
 Canal Co. v. Wheeley, 2 B. & Ad. 
 792; People V. N. Y. & S. I. & F. 
 Co., 68 N. Y. 71; McFarlan v. 
 Orange, etc., Car Co., 37 N. J. 
 Eq. 17; West End & Atlantic St. 
 
 R. Co. V. Atlantic St. R. Co., 49 
 Ga. 151; Rice v. Railroad Co., t 
 Black (U. S.), 358; New Orleans 
 & C. R. Co. V. New Orleans, 34 
 La. Ann. 429. The New York 
 statute (Laws of 1889, chap. 531, 
 § 12), authorizing street surface 
 railroads, upon obtaining the ap- 
 proval of the State board of rail- 
 road commissioners and the con- 
 sent of the property-owners as 
 specified, to operate its road " by 
 any power other than locomotive 
 steam power instead of by animal 
 or horse power," confers no sub- 
 stantial franchise to conduct or 
 operate a road, but is simply a 
 regulating act. Matter of T. A. 
 R. Co., 121 N. Y. 536, 24 N. E. 
 951; Colonial City T. Co. v. Kings- 
 ton R. Co., 154 N. Y. 493, 48 N. 
 E. 900. The manner in which an 
 existing franchise to operate a 
 railroad may be exercised is mat- 
 ter of regulation, and is generally 
 within the absolute control of the 
 legislature. Matter of T. A. R. 
 R. Co., 121 N. Y. 536, 540, 24 N. 
 E. 951. Where a special statute 
 charter (N. Y. Laws 1871, chap. 
 517) authorized a street surface rail- 
 
CHARTER, A CONTRACT. 
 
 37 
 
 manifestly is the proper one always to be followed where the 
 property of the citizen is sought to be taken against his con- 
 sent. Everything not enumerated in a grant, or excepted 
 out of it, is held to be as distinctly negatived as though there' 
 were express words of negation.''^ The powers of the cor- 
 poration must be deemed to extend however to the accom- 
 plishment of legitimate corporate ends, and to whatever may 
 be found to be within the scope of the legislative grant. The 
 purpose, in creating a railroad corporation, must be deemed 
 to be of a public nature, and the public is interested in its 
 full and free accomplishment. If the proposed corporate 
 act is in furtherance of the public convenience, and can fairly 
 find a sanction in the charter, it should be upheld. Indi- 
 
 road company to construct and 
 maintain through the streets of the 
 municipality and operate a street 
 railroad " by horses, mules, or 
 <iummy engines," a subsequent 
 general statute prohibiting the use 
 of locomotive steam power modi- 
 fies the special charter. People, 
 Babylon R. Co. v. Commissioners, 
 ^2 App. Div. (N. Y.) 179. In the 
 case last cited a " kinetic " motor 
 was held not to be the " loco- 
 motive steam power " contem- 
 plated by the statute. 
 
 The provisions of the Pennsyl- 
 vania Street Railway Act of i88g 
 are applicable to a street railway 
 company incorporated under spec- 
 ial act of the assembly, which ac- 
 cepts the same as therein provided 
 under the clause, " any street pas- 
 senger railway company hereto- 
 fore existing under color of any 
 charter," though the words " under 
 color of " are inaptly chosen as the 
 equivalent of " under authority of." 
 
 Berks Co. v. Reading City Pass. 
 Ry. Co., 126 Pa. St. 102; People, 
 Third Ave. Ry. Co. v. Newton, 
 112 N. Y. 396, 19 N. E. 831; Citi- 
 zens' St. Ry. Co. V. Jones (Ark.), 
 34 Fed. 579. 
 
 76. Farrell v. Winchester Ave. 
 R. Co., 3 Am. Electl. Cas. 85, 6 
 Conn. 127; Durousseau v. United 
 States, 10 U. S. (6 Cranch) 307, 
 3 L. Ed. 232. " In so far as the 
 rights granted to corporations are 
 destructive of or encroach upon 
 public or common rights, they are 
 undoubtedly to be construed most 
 strongly against those setting them 
 up and in favor of the State or the 
 public; they are not to be extended 
 beyond the express words in which 
 they are given, or their clear im- 
 port, and what is not given in 
 unequivocal terms is to be deemed 
 as expressly withheld." Endlich 
 on Interpretation of Statutes, 
 i 354- 
 
38 
 
 STREET SURFACE RAILROADS. 
 
 vidual interests must be subservient so far to the public as 
 to give way before an evident public requirement.''^ Where 
 the grant contains no words of definition or limitation the 
 corporation takes by implication all, and only, such powers 
 as are reasonable and necessary to its legitimate purposes.^* 
 
 77. Matter of U. E. R. Co. of 
 Brooklyn, 113 N. Y. 275, 21 N. E. 
 81 ; Suburban Rapid Transit Co. v. 
 Mayor, 128 N. Y. 510, 28 N. E. 
 525. Mere legislative power to say 
 how the streets of a city shall be 
 used, conferred by a charter^ upon 
 the common council, cannot be 
 construed as giving power to con- 
 tract with a street railway com- 
 pany for the right to lay tracks 
 in the streets for a term of years, 
 although without such contracting 
 power no street railroad will be 
 built. Detroit v. Detroit City Ry. 
 Co., 56 Fed. 857. But where the 
 charter of a railroad company em- 
 powers the directors to make such 
 agreements with any person or 
 corporation whatsoever " as the 
 construction of their railroad, 
 or its maintenance, and the con- 
 venience and interest of the com- 
 pany and the conduct of its affairs 
 may, in their judgment, require; 
 also to build and run steamboats," 
 etc., a contract with a steamboat 
 company by which the railroad 
 corporation guarantees a certain 
 amount of receipts from a line of 
 boats to run in connection with 
 the road, is not ultra vires. Green 
 Bay & M. R. Co. v. Union Steam- 
 boat Co., 107 U. S. 98, 27 L. Ed. 
 413- 
 
 78. City of St. Louis v. Missouri 
 R. Co., 13 Mo. App. 524; Attorney- 
 General v. Chicago, etc., R. Co., 
 112 111. 611. A company author- 
 
 ized by its charter to operate a 
 road commencing in one munici- 
 pality and extending into another, 
 may operate a line entirely within 
 the limits of the one municipality. 
 Wilmington City Ry. Co. v. Peo- 
 ple's Ry. Co. (Del. Ch.), 47 AtL 
 245; West Penn. Co.'s Appeal, 
 99 Pa. St. 155; Mason v. Brooklyn 
 City, etc., R. Co., 35 Barb. (N. Y.) 
 373; McFarlan v. Orange, etc., R. 
 Co., 13 N. J. Eq. 17. Reference 
 to streets by name with a general 
 reference to the corporate limits 
 is sufficient in a street railway 
 charter under a statute providing 
 that the charter shall state the 
 initial and final termini and gen- 
 eral route of the road. Africa v. 
 Knoxville (C. C. E. D. Tenn.), 70 
 Fed. 729. The organization of a 
 street railroad company under the 
 Pennsylvania act of 1889 is not 
 limited to one city, borough, or 
 local jurisdiction in the absence of 
 anything indicating a restriction 
 as to locality, and the term 
 " streets," as used therein, includes 
 roads in townships as distinct from 
 the streets of a borough or city. 
 Pennsylvania R. Co. v. Mont- 
 gomery County Pass. Ry. Co., 3 
 Pa. Dist. (C. P.) s8, 14 Pa. Co. 
 Ct. 88. A charter empowering a 
 street railroad company to con- 
 struct its railroad " upon and 
 over " certain streets " except in " 
 certain other streets mentioned, is 
 not to be construed as preventing 
 
AMENDMENT OR REPEAL. 39 
 
 § 10. Amendment or repeal of charter. — Each State by its 
 Constitution, a general law, or in a special act granting the 
 charter has reserved power to alter, amend, or repeal the 
 same, and such reservation is vahd.'^ And where there is 
 no such reservation, if the charter be altered or modified with 
 the assent of the corporation, the obligation of the contract 
 created by the original charter is not impaired.*" Provision 
 in a charter that it should not be altered or alterable in any 
 other manner than by act of the legislature is in all respects 
 equivalent to an express reservation to the State to make 
 any alterations in the charter which the legislature, in its 
 wisdom, may deem fit, just, and expedient to enact.*' If the 
 power be reserv'ed the legislature may repeal, alter, or mod- 
 ify the charter by general statute, or it may be done by 
 change in the Constitution; a creditor cannot object, nor is 
 the consent of the corporation necessary, nor would a stock- 
 holder be thereby discharged from his obligation to the cor- 
 
 the company from laying tracks cock, 40 Mass. 334; English v. N. 
 
 "across" one of the excepted H. & N. Co., 32 Conn. 243; Com- 
 
 streets, especially where the com- monwealth v. Fayette Co. R. Co., 
 
 pany has previously laid a track SS Pa. St. 452. 
 
 across one of such excepted streets 80. Pennsylvania College Cases, 
 
 without hindrance. State v. New- 80 U. S. (13 Wall.) 190, 20 L. Ed. 
 
 port St. R. Co., 16 R. I. 533, 18 SSo; Mumma v. Potomac Co., 33 
 
 Atl. 161, 6 R. & Corp. L. J. 378. U. S. (8 Pet.) 281, 8 L. Ed. 94S; 
 
 A grant by the legislature to a Slee v. Bloom, 19 Johns. (N. Y.) 
 
 street railroad company of the 456; Riddle v. Locks & Can., 7 
 
 right to construct and operate a Mass. 185; Lincoln & Ken. B. K. 
 
 railroad along a street which is v. Richardson, i Me. 79; Sprague 
 
 already occupied by another com- v. Illinois R. Co., 19 111. 174. 
 
 pany will not of itself give the new 81. Pennsylvania College Cases, 
 
 company the right to use the old 80 U. S. (13 Wall.) 190, 20 L. Ed. 
 
 tracks. Louisville City R. Co. v. SSo; Houston v. JefTerson Coll., 63 
 
 Central Pass. R. Co., 87 Ky. 223, Pa. St. 428; State v. Yard, 10 
 
 8 S. W. 329. Chicago L. N. 90; Commonwealth 
 
 79. McLaren v. Pennington, i v. Dousall, 3 Whart. (Pa.) 559. 
 Paige (N. Y.) 102; Crease v. Bab- 
 
40 
 
 STREET SURFACE RAILROADS. 
 
 82 
 
 poration."^ But under this power to alter the State cannot 
 change the nature of the corporation, nor take away prop- 
 erty rights, nor authorize the taking of private property for 
 pubHc use without compensation.*^ Nor under the power 
 to repeal can the State destroy the executory contracts of 
 corporations.®* But it may regulate passenger and freight 
 rates thereafter made.*' It cannot however establish a tariff 
 
 82. Schenectady, etc., P. R. Co. 
 V. Thatcher, 11 N. Y. 102; Matter 
 of Lee's Bank, 21 id. 9; Reed v. 
 Frankfort Bank, 23 Me. 318; At- 
 torney-General V. Railroad Co., 35 
 Wis. 425; Mayor v. N., etc., R. 
 Co., 109 Mass. 103; Paring v. 
 Oliver, i Minn. 302; Butler v. 
 Walker, 80 111. 345; State v. Com- 
 missioners, 38 N. J. 472. 
 
 83. Commonwealth v. Essex 
 County, 79 Mass. 239; Bufifalo, etc., 
 R. Co. V. Dudley, 14 N. Y. 336; 
 Allen V. McKean, i Sumn. (U. S.) 
 276; People V. O'Brien, iii N. Y. 
 I, 18 N. E. 692. In the case last 
 cited the court, per Ruger, Ch. J., 
 said: "The contention that se- 
 curities representing a large part 
 of the world's wealth are beyond 
 the reach of the protection which 
 the Constitution gives to prop- 
 erty, and are subject to the arbi- 
 trary will of successive legislatures, 
 to sanction or destroy at their 
 pleasure or discretion, is a propo- 
 sition so repugnant to reason and 
 justice as well as the traditions 
 of the Anglo-Saxon race in re- 
 spect to the security of rights of 
 property, that there is little reason 
 to suppose that it will ever re- 
 ceive the sanction of the judiciary, 
 and we desire in unqualified terms 
 to express our disapprobation of 
 such a doctrine. Whatever might 
 
 have been the intention of the 
 legislature or even of the framers 
 of our Constitution in respect to 
 the effect of the power of repeal 
 reserved in acts of incorporation, 
 upon property rights of a corpo- 
 ration, such power must still be 
 exercised in subjection to the pro- 
 visions of the Federal Constitu- 
 tion." (Page 36.) Shields v. 
 Ohio, 95 U. S. (s Otto) 319, 24 
 L. Ed. 357. Having granted to 
 the corporation a franchise to 
 maintain a street surface railroad 
 it cannot require the change into 
 an underground road maintained 
 in a tunnel. Coney Isl., F. H. & 
 B. R. Co. v. Kennedy, 15 App. 
 Div. (N. Y.) 588, 44 N. Y. Supp. 
 (78 St. Rep.) 825. 
 
 84. Curran v. Arkansas, 56 U. S. 
 (15 How.) 304, 14 L. Ed. 705, 12 
 Ark. 321. 
 
 85. Parker v. Metropolitan R. 
 Co., 109 Mass. S06; Shields v. 
 State, 26 Ohio St. 86; Attorney- 
 General v. Railroad Co., 35 Wis. 
 42s; Peik V. Chicago, etc., R. Co., 
 94 U. S. (4 Otto) 164, 24 L. Ed. 
 97, 6 Biss. (U. S.) 177; Shields v. 
 Ohio, 95 U. S. (S Otto) 319, 24 L. 
 Ed. 357. A railroad company takes 
 its charter, containing a provision 
 giving power to the directors to 
 make rules as to rates of toll, sub- 
 ject to the general law of the State, 
 
AMENDMENT OR REPEAL. 4I 
 
 of rates which is so unreasonable as to practically destroy the 
 value of the property of the corporation. It would thus 
 deprive the corporation of its property without due process 
 of law and would deny to it the equal protection of the laws.** 
 The State's power to alter or modify a charter is not ex- 
 hausted by one alteration;*^ and if a general statute or the 
 Constitution reserves the power to alter charters, all charters 
 subsequently granted are subject thereto.** If incorporation 
 be authorized with a reserve power of revocation by the 
 legislature, a single right or privilege may be withdrawn 
 without revoking the whole franchise, and this may be done 
 either directly or by necessary implication, as by the passage 
 of an act inconsistent with some right or privilege possessed 
 by the corporation.*' Where the power to alter is reserved, 
 the State may prescribe how the power shall be exercised.'** 
 The power may be exercised, so far as street surface railroads 
 are concerned, by amendment to charters of municipal cor- 
 porations, and such amendments will control the municipal 
 power with reference to corporate franchises previously 
 
 and to such changes as may be Hills, 46 Barb. (N. Y.) 340; revd. 
 
 made in such general law and sub- on another point, 35 N. Y. 449; 
 
 ject to future constitutional pro- Proprs. v. Haskell, 7 Me. 474. 
 
 visions and future general legisla- 88. Central R. Co. v. State, 54 
 
 tion, in the absence of any prior Ga. 501; Fort Plain Bridge v. 
 
 contract with it exempting it Smith, 30 N. Y. 44; Iron City 
 
 from liability to such future gen- Bank v. Pittsburg, yj Pa. St. 340; 
 
 eral legislation. Chicago, etc., Ry. State v. Person, 32 N. J. 134; 
 
 Co. V. Minnesota, 134 U. S. 418, Griffing v. Kentucky Ins. Co., 3 
 
 33 L. Ed. 970. Bush (Ky.), 592; Ruckert v. Grand 
 
 86. Covington & L. Turnp. Co. Ave. Ry. Co. (Mo.), 63 S. W. 814. 
 V. Sandford, 164 U. S. S78, S92. 89. Wilmington City Ry. Co. v. 
 41 L. Ed. 560, 565; St. Louis & Wilmington & B. S. R. Co., 46 
 S. F. R. Co. V. Gill, 156 U. S. Atl. 12. 
 
 649. 6S7, 39 L. Ed. 567, 570. 90. Matter of Recip. Bank, 22 
 
 87. M. E. R. Co. V. Commis- N. Y. 9, 29 Barb. (N. Y.) 369, 17 
 sioners, ^^ N. J. 228; People v. How. Pr. (N. Y.) 323. 
 
42 STREET SURFACE RAILROADS. 
 
 granted.9' Under the power to alter, the State may au- 
 thorize a street surface railroad corporation to build branches 
 or extensions of its road without the consent of its stock- 
 holders, where the character of the contract is not altered 
 thereby and the alteration is not prejudicial to the stock- 
 holders' interest.^^ It may require railroad companies to 
 imite in a passenger station in a municipality, to extend their 
 tracks thereto, and to discontinue parts of their existing loca- 
 tion.'^ It may take away a corporate franchise or prescribe 
 the conditions and terms upon which the corporation may 
 live and exercise such franchise.'* It should be remembered 
 however that the power to alter franchises and grants means 
 their restriction rather than their enlargement, and under 
 the guise of an amendment franchises and privileges cannot 
 be conferred upon a corporation which are not in harmony 
 Tvith the spirit of the original grant. '5 A statutory provi- 
 sion that " all charters heretofore granted by the secretary 
 
 91. Eichels v. Evansville St. Ry. 93. Mayor v. Norwich, etc., R. 
 Co., 78 Ind. 261, so Am. & Eng. Co., 109 Mass. 103. 
 
 R. Cas. 274, 41 Am. Rep. 562; 94. Mayor, etc. v. Twenty-third 
 
 Taylor v. Bay City St. Ry. Co. St. R. Co., 113 N. Y. 311. A 
 
 (Mich.), 47 N. W. 33S. franchise granted by the State, 
 
 92. Schenectady, etc., P. R. Co. with a reservation of the right of 
 V. Thatcher, 11 N. Y. 102; Durfee repeal, must be regarded as a 
 •V. Old Colony, etc., R. Co., 5 niere privilege while it is suffered 
 Allen (Mass.), 230; Bannett v. to continue. Cincinnati, etc., Ry. 
 Alton, etc., R. Co., 13 111. 504; Co. v. The City, etc., Tel. Assn., 3 
 Pacific R. Co. v. Remshaw, 18 Mo. Am. Electl. Cas. 443, 458, 48 Ohio 
 210. Under certain circumstances St. 390, 27 N. E. 890, note 460. 
 
 a street railroad corporation or- 95. Astor v. Arcade R. Co., 113 
 ganized under special charter may N. Y. 93, 112, 20 N. E. 594. In the 
 procure its charter to be amended case cited, the question was 
 so as to authorize it to extend the whether or not the corporation or- 
 termini of its line fixed by its ganized to transmit letters, pack- 
 original charter and to acquire ages, and merchandise in New 
 rights granted to other roads. York and Brooklyn by means of 
 State, Crowe v. Lindell R. Co., 151 pneumatic tubes to be constructed 
 Mo. 162, 52 S. W. 248. beneath the surface could by 
 
FORFEITURE OR ANNULMENT. 43 
 
 of State to street and suburban railroad companies are 
 hereby confirmed and declared to have had full effect from 
 their dates," is in effect a general law; and companies there- 
 tofore organized after tihe acceptance of the provisions of the 
 act, although only de facto corporations, become vested with 
 all the corporate powers mentioned in their charters.'^ 
 
 § 11. Forfeiture or annulment of charter. — Statutes authoriz- 
 ing the formation of railroad corporations usually con- 
 tain provisions for a forfeiture upon certain contingencies. 
 Whether a forfeiture clause is or is not self-executing de- 
 pends wholly upon the language employed by the legislature, 
 which must be strong and unmistakable to authorize the 
 court to hold that it was the intention of the legislature to 
 dispense with judicial proceedings on the intervention of 
 the attorney-general.9'' When the words used in the statute 
 to declare a penalty for the nonperformance of conditions 
 specified are that the corporation shall forfeit its charter, or 
 its charter rights, or be dissolved, or where equivalent ex- 
 pressions are used, these have never been held ex propria 
 vigore, to put an end to corporate life. By such nonper- 
 formance a corporation is not ipso facto dissolved or de- 
 prived of its corporate existence or corporate rights, but it 
 is simply exposed to proceedings, on behalf of the State, to 
 establish and enforce the forfeiture. The State which im- 
 poses the conditions may waive their performance, and the 
 
 amendment of its charter be per- 96. Brown v. Atlanta Ry. & P. 
 
 mitted to operate a railroad for Co. (Ga.), 39 S. E. 71. 
 
 passenger and freight traffic, it was 97- Matter of N. Y. & L. I. B. 
 
 also decided that the bill was a Co., 148 N. Y. S40, 547, 42 N. E. 
 
 private or local bill, embracing 1088; People v. Los Angeles EI. 
 
 more than one subject, and there- Ry. Co. (Cal.), 27 Pac. 673; Com- 
 
 fore unconstitutional. monwealth v. Bank, 28 Pa. St. 
 
 383. 
 
44 
 
 STREET SURFACE RAILROADS. 
 
 corporate life may run on until the State, by proper proceed- 
 ing, intervenes and enforces the forfeiture. Until the State 
 does thus intervene, a private individual cannot set up the 
 forfeiture or in any way challenge the corporate existence 
 with its full vitality.9* But if the statute provides that upon 
 
 98. Matter of B. E. R. Co., 125 
 N. Y. 434, 440. 
 
 Forfeiture clauses held not self- 
 executing: 
 
 Oregon Corporation Act pro- 
 vided that if any corporation 
 should neglect and cease to carry- 
 on its business for any period of 
 six months its " corporate powers 
 shall cease." Held, that such neg- 
 lect and cessation did not, ipso 
 facto, terminate the existence of 
 the corporation. 
 
 United States. — Wallamet Falls, 
 etc., Co. V. Kittridge, S Sawy. (U. 
 S.) 44. The act of incorporation 
 provided that whenever over four- 
 fifths of the capital stock of the 
 company to which the act applied 
 should become concentrated, by 
 purchase or otherwise, in the 
 hands of less than five persons, 
 etc., " all the corporate powers and 
 privileges granted should cease 
 and determine." Held, that a 
 private party could not take ad- 
 vantage of the forfeiture, and that 
 the sovereign power might waive 
 it. Frost V. Frostburgh Coal Co., 
 6s U. S. (24 How.) 278, 16 L. Ed. 
 637- 
 
 Illinois. — Baker v. Backus, 32 111. 
 79. 
 
 Maryland. — Chesapeake Co. v. 
 Baltimore, etc., R. Co., 4 Gill & 
 J. (Md.) i; Musgrave v. Morris, 
 54 Md. 161. 
 
 New Jersey. — New Jersey So. 
 
 R. Co. V. Long Branch Comrs., 39- 
 N. J. L. 35. 
 
 New York. — Matter of Reformed 
 Presbyterian Church, 7 How. Pr. 
 (N. Y.) 476; People v. Manhattan 
 Co., 9 Wend. (N. Y.) 351. In 
 the case last cited the charter pro- 
 vided that " said company shall, 
 within ten years from the passing 
 of this act, furnish and continue a 
 supply of pure and wholesome 
 water, sufficient for the use of alt 
 such citizens dwelling in such city 
 as shall agree to take it on the 
 terms to be demanded by the said 
 company; in default whereof the 
 said corporation shall be dis- 
 solved." Held, that the words " be 
 dissolved " should be construed to 
 mean dissolved in a regular and 
 legal manner by a proper judicial 
 proceeding. 
 
 The words of forfeiture in the 
 following case are " all rights and 
 privileges granted hereby shall be 
 null and void." The court held 
 that the words " null and void," 
 as used in the act, clearly meant 
 voidable. New York, etc., Co. v. 
 Smith, 148 N. Y. 540, 42 N. E. 
 1088; Matter of Staten Isl. R. T. 
 Co., 103 N. Y. 251, 8 N. E. 548; 
 Day V. Ogdensburgh, etc., R. Co., 
 107 N. Y. 129, 13 N. E. 76s; Wood- 
 ruflf V. Erie R. Co., 93 N. Y. 609; 
 Matter of Townsend, 39 id. 171; 
 Matter of New York El. R. Co., 
 70 id. 338; Matter of New York, 
 
FORFEITURE OR ANNULMENT. 
 
 45 
 
 the contingency the franchise shall be terminated or shall 
 cease, then, in a proper case, judicial proceedings are un- 
 necessary, the dissolution of the corporation may be declared 
 at the suit of a private individual, and the legislature may 
 confer the franchise upon any other company or person.'' 
 
 €tc., Ry. Co., 99 id. 12, i N. E. 
 27. 
 
 Pennsylvania. — Turnpike Co. v. 
 Jenkintown El. R. Co., 4 Pa. 
 Dist. 8. 
 
 South Carolina. — Cheraw, etc., R. 
 Co. V. White, 14 S. C. 61 ; Cheraw, 
 etc., R. Co. V. Garland, id. 64. 
 
 Tennessee. — La Grange, etc., R. 
 Co. V. Raney, 7 Coldw. (Tenn.) 
 420. 
 
 Vermont. — Vermont, etc., R. Co. 
 V. Vermont C. R. Co., 34 Vt. i. 
 
 99. Matter of B. W. & N. Ry. 
 Co., 72 N. Y. 245. In the case 
 x:ited, the forfeiture clause required 
 every such corporation to begin 
 the construction of its road and 
 expend thereon 10 per cent, of its 
 capital within five years after its 
 articles are filed and recorded, and 
 declared that in case of nonper- 
 formance " its corporate existence 
 and powers shall cease," the court, 
 per Allen, J., said: " Upon the 
 contingency it needed no action 
 or judicial proceeding to declare 
 or compel a forfeiture of the 
 charter and loss of corporate pow- 
 ers. The statute executed itself, 
 and the nonexistence of the cor- 
 poration could be alleged in oppo- 
 sition to this application by the 
 respondents." (In condemnation 
 proceedings.) 
 
 The same point was decided in 
 the later case of the Brooklyn 
 Steam T. Co. v. City of Brooklyn, 
 78 N. Y. 524; and in the Matter 
 
 of B. W. & N. R. Co., 81 id. 
 69, it was held that the corpora^ 
 tion by leasing a portion of the 
 road covered by its franchise to 
 another corporation, with the right 
 to lay tracks thereon, not for the 
 purpose of constructing the road 
 of the lessor, but to enable the 
 lessee to complete its own road, 
 the tracks, when built, not to be- 
 long to the lessor or to be oper- 
 ated by it, but to be constructed 
 at the expense of and be operated 
 and maintained for the use of the 
 lessee exclusively, would not save 
 the charter from forfeiture. 
 
 Peavey v. Calais R. Co., 30 
 Me. 498. A statute provided that 
 if any railroad corporation should 
 not, within two years after its in- 
 corporation, construct and put in 
 operation at least ten miles of its 
 proposed road, " such corporation 
 shall forfeit its corporate existence, 
 and its powers shall cease as far 
 as it relates to that portion of said 
 road then unfinished, and shall be 
 incapable of resumption by any 
 subsequent act of incorporation." 
 Held, self-executing. Sulphur 
 
 Springs, etc., R. Co. v. St. Louis, 
 etc., R. Co., 2 Tex. Civ. App. 650, 
 22 S. W. 107, 23 id. 1012. 
 
 Where an act provided that 
 upon certain failures to comply 
 with specified requirements, the 
 rights and privileges granted 
 should revert to the Common- 
 wealth, it was held that judicial 
 
46 
 
 STREET SURFACE RAILROADS. 
 
 The forfeiture clause which ends the corporation without a' 
 direct judicial procedure to declare the forfeiture must 
 amount to an express limitation upon the original grant of 
 
 action or other legislation on the 
 happening of the event was un- 
 necessary. Commonwealth v. 
 Lykens Water Co., no Pa. St. 
 391. So held as to an act incor- 
 porating a railroad company at- 
 taching a condition to the grant 
 that it should construct and equip 
 its road and branches within a 
 specified time, or upon failure to 
 do so, all unbuilt portions thereof, 
 " with the property, rights, and 
 franchises appertaining thereto, 
 shall be absolutely forfeited, and 
 shall revert to the State without 
 any further act or ceremony what- 
 ever." State v. St. Paul, etc., R. 
 Co., 35 Minn. 224, 28 N. W. 245. 
 So held, too, where the act pro- 
 vided that if the company should 
 fail to complete its railroad be- 
 tween certain points within a 
 specified time, it " shall forfeit to 
 the State of Virginia their corpo- 
 rate franchises and rights, together 
 with their railroad track, roadbed, 
 and all work and materials thereon, 
 and other property, to hold the 
 same as a trustee for the benefit 
 of creditors, the corporation of 
 Fredericksburgh and other private 
 stockholders of the original Fred- 
 ericksburgh Railroad Company, 
 according to the respective 
 amounts of the stock in that 
 company originally subscribed and 
 held by them." Silliman v. Fred- 
 ericksburgh, etc., R. Co., 27 Graft. 
 (Va.) 119. 
 
 Where the charter provided that 
 the corporation making default in 
 the payment of a State loan and ap- 
 
 plying for a renewal thereof should 
 consent to a forfeiture of its 
 charter, — Held, that upon the 
 default, the charter was, ipso 
 facto, surrendered without any 
 judicial proceedings for the pur- 
 pose. Mobile, etc., R. Co. v. 
 State, 29 Ala. 585. But where the 
 act provided that on the foreclos- 
 ure of a mortgage upon the prop- 
 erty and franchise of a railroad 
 corporation the corporation should 
 be dissolved, it was held that an 
 illegal and fraudulent sale upon 
 such a foreclosure would not work 
 a dissolution. White Mountains R. 
 Co. v. White Mountains R. Co., 
 so N. H. 50. 
 
 Forfeiture clauses held self-exe- 
 cuting in other cases: 
 
 United States.— 'L.othro-p v. Stead- 
 man, 13 Blatchf. (U. S.) 143. 
 
 Alabama. — Mobile, etc., R. Co.^ 
 V. State, 39 Ala. 573. 
 
 California. — Oakland R. Co. v. 
 Oakland, etc., R. Co., 45 Cal. 365, 
 13 Am. Rep. 181. 
 
 Connecticut. — New York, etc., R. 
 Co. V. Boston, etc., R. Co., 36- 
 Conn. ig6. 
 
 Kansas. — Atchison St. R. Co. v. 
 Nave, 38 Kan. 444, 5 Am. St. Rep. 
 800, 17 Pac. 587. 
 
 Massachusetts. — Crease v. Bab- 
 cock, 23 Pick. (Mass.) 343, 34 Am. 
 Dec. 61. 
 
 Missouri. — Ford v. Kansas City,^ 
 etc., R. Co., 52 Mo. App. 429. 
 
 New Jersey.— Elizabethtown Gas 
 Light Co. v. Greene, 46 N. J. Eq. 
 118. 
 
 New York.— Matter of Kings. 
 
FORFEITURE OR ANNULMENT. 
 
 47 
 
 corporate power.' Not every nonuser, not every misuser, 
 will furnish sufficient ground for forfeiture. To work a 
 forfeiture, there should be something wrong; and not only a 
 wrong, but one arising from willful abuse or improper neg- 
 lect, indicating an indifiference to the demands of public duty,, 
 unless the act or omission is made by statute a cause of for- 
 feiture, irrespective of its intent or character.^ Forfeitures 
 
 Co. El. R. Co., 41 Hun (N. Y.), 
 426; Kennedy v. Strong, 14 Johns. 
 (N. Y.) 128. 
 
 Texas. — Bywaters v. Paris, etc., 
 R. Co., 73 Tex. 624, II S. W. 856; 
 Galveston, etc., R. Co. v. State, 81 
 Tex. 572, 17 S. W. 67; Houston 
 V. Houston Belt, etc., R. Co., 84 
 Tex. 590; Gulf City R. Co. v. 
 Gulf, etc., R. Co., 63 id. 529. 
 
 The legislature has undoubted 
 power to provide in an act of in- 
 corporation that corporate exist- 
 ence shall cease by the mere fail- 
 ure of the corporation to perform 
 certain acts imposed by its char- 
 ter. New York, etc.. Bridge Co. 
 V. Smith, 148 N. Y. 540, 42 N. E. 
 1088. 
 
 In Crease v. Babcock, 23 Pick. 
 (Mass.) 342, 34 Am. Dec. 61, 
 Morton, J., stated that Chan- 
 cellor Kent made, " with some ap- 
 pearance of reluctance," the state- 
 ment that if a charter be granted 
 and accepted with reservation or 
 upon a condition, there seems to 
 be no ground to question the 
 validity and efificiency of the reser- 
 vation. 2 Kent Com. 306. 
 
 The charter of a street railway 
 company is not void because it 
 has located its road on part of a 
 street to which another street rail- 
 road company claims a prior right. 
 
 Union R. Co. v. Philadelphia, etc., 
 Co., 6 Del. Co. Rep. 490. Nor is 
 it void because it includes in part 
 of its road a street which another 
 company has obtained an unexe- 
 cuted right to occupy in a certain 
 time, particularly where the two 
 companies have settled their con- 
 troversy by agreement. Chester 
 Traction Co. v. Philadelphia, etc., 
 Co. (C. P.), 6 Del. Co. Rep. 481. 
 
 1. Day v. O. & L. C. R. Co., 
 107 N. Y. 129, 139, 13 N. E. 765. 
 
 2. People V. A. A. R. Co., 125 
 N. Y. 513, 519, 26 N. E. 622; Chi- 
 cago City Ry. Co. v. People, 73 111. 
 541. The limitations of the origi- 
 nal act are not abrogated by being 
 left out of the amendatory act. 
 The two acts must be read and 
 construed together, and the amend- 
 ments must be read as if incorpo- 
 rated in the original act, and all 
 the provisions of the original act 
 remain in force except as modified. 
 Brooklyn Steam Transit Co. v. 
 Brooklyn, 78 N. Y. 524, 531; En- 
 field Toll Bridge Co. v. Connecti- 
 cut River Co., 7 Conn. 45; Baker 
 v. Backus, 32 111. 79; State v. 
 Fagan, 22 La. Ann. 546; Briggs 
 v. Cape Cod Ship Canal Co., 137 
 Mass. 71; Knowlton v. Atley, 8 
 Cush. (Mass.) 95; People v. Run- 
 kle, 9 Johns. (N. Y.) 147; Bradt 
 
48 
 
 STREET SURFACE RAILROADS. 
 
 are not favored, and in construing forfeiture clauses the 
 courts are generally opposed to a construction supporting 
 a forfeiture ipso facto, without judgment of dissolution in a 
 judicial proceeding ;3 and require those who challenge the 
 existence of franchises on the ground of failure to comply 
 with a specified condition under which the grant was made, 
 to bring themselves strictly within the provisions of the char- 
 ter under which they claim the right of forfeiture arises.* 
 
 V. Benedict, 17 N. Y. 93; Mickels 
 T. Rochester City Bank, 11 Paige 
 (N. Y.), 118, 42 Am. Dec. 103; 
 Blake v. Hinkle, 10 Yerg. (Tenn.) 
 218. 
 
 Where a bank charter provided 
 that in case of a suspension of 
 specie payment for more than 
 ninety days the charter should be, 
 ipso facto, forfeited and void, it was 
 held that the happening of the con- 
 tingency merely gave the State the 
 right to enforce the forfeiture in 
 a proper judicial proceeding. 
 Atchafalaya Bank v. Dawson, 13 
 La. 497. 
 
 3. Santa Rosa City R. Co. v. 
 Center St. R. Co. (Cal.), 38 Pac. 
 989. In the case cited the court, 
 per Van Fleet, J., said: " It is ob- 
 vious that the requirement as to 
 the completion of the work within 
 a given time was a condition sub- 
 sequent. It is a general rule that 
 none but the creditor or his heirs 
 could avoid a grant for failure to 
 perform a condition subsequent; 
 and in case of a public grant the 
 right to avoid it on that ground 
 is confined to the government and 
 can be exercised only through the 
 judgment of a court or by a legis- 
 lative declaration of forfeiture. It 
 
 follows that where such condition 
 is imposed by statute, a failure to 
 perform it will not, ipso facto, avoid 
 the grant unless so declared by 
 the statute creating the condition. 
 Unless the statute by express 
 terms or by plain implication so 
 declares, no forfeiture will take 
 place without a judicial, or at least 
 a legislative, determination to that 
 efifect." And see Oakland R. Co. 
 v. Oakland, etc., R. Co., 45 Cal. 
 365; Chicago V. Chicago, etc., R. 
 Co., 105 111. 73; Hughes V. North- 
 ern Pac. Ry. Co., 18 Fed. 106. 
 
 4. People V. Los Angeles El. Ry. 
 Co. (Cal.), 27 Pac. 673; People v. 
 A. A. R. Co., 125 N. Y. S13, 26 N. 
 E. 622; Matter of B. W. N. Ry. Co., 
 72 N. Y. 24s. An exclusive right 
 granted to a street railway com- 
 pany to operate its line in the city 
 is such a property right as will en- 
 title it to raise by injunction the 
 question of forfeiture, by failure 
 to perform the conditions of the 
 charter of a company which is 
 granted the right to build a street 
 railway in certain streets of the 
 city. Wilmington City Ry. Co. 
 v. Wilmington, etc., Co. (Del. 
 Ch.), 46 Atl. 12. 
 
LEGISLATIVE CONTROL OF STREETS. 
 
 49 
 
 A New York statute provides for a forfeiture if the road be 
 not built within a time Hmited.^ 
 
 § 12. Legislative control of streets. — The right of the legis- 
 lature over the public highways, and to grant the Use thereof 
 for the public convenience and travel, so long as it does not 
 impose additional servitudes upon the property and does not 
 materially obstruct the public use by ordinary and accus- 
 tomed methods, is undoubted.* It has power to authorize 
 the construction of a railroad in a city street without the con- 
 sent of the municipal authorities, even though the city char- 
 ter confers on the city council the authority to grant the 
 Tight to construct such a road.^ But the control of the streets 
 
 S. " § 99. Within what time 
 load to be built — In case any 
 such corporation shall not com- 
 mence the construction of its road, 
 or of any extension or branch 
 thereof within one year after the 
 consent of the local authorities and 
 property-owners, or the determi- 
 nation of the general term as 
 herein required, shall have been 
 given or renewed, and shall not 
 complete the same within three 
 years after such consents, its 
 rights, privileges and franchises 
 in respect of such railroad exten- 
 sion or branch, as the case may be, 
 may be forfeited. If the perform- 
 ance of any such act, within such 
 time, is prevented by legal pro- 
 ceedings in any court, such court 
 may also extend such time for such 
 period as the court shall deem 
 proper. The time for compliance 
 with this requirement in this or 
 any former act, by a street surface 
 railroad corporation incorporated 
 
 for the purpose of constructing a 
 street surface railroad only, wholly 
 south of the Harlem river and in 
 cities of over twelve hundred 
 thousand inhabitants and which 
 has heretofore obtained such con- 
 sents, is hereby extended until 
 June thirtieth, eighteen hundred 
 and ninety-five. (As amended by 
 chap. 676 of 1892, chap. 434 of 
 1893, § I.) " 3 Heyd. Gen'l Laws 
 (2d ed.), 3316. 
 
 6. Paterson Ry. Co. v. Grundy, 
 4 Am. Electl, Cas. 173, 182, 51 N. 
 J. Eq. 213; Domestic Telephone 
 & Telegraph Co» v. Newark, 20 
 Vroom (N. J.), 344. 346- 
 
 7. In most States however by 
 constitutional provisions the use of 
 the streets for railroad purposes 
 cannot be had without municipal 
 grant. 
 
 Chicago & Illinois Steel Co., 66 
 111. App. 561. In authorizing a 
 street railroad company to occupy 
 public streets, the State legisla- 
 
50 
 
 STREET SURFACE RAILROADS. 
 
 within a municipality is now quite generally delegated to the 
 local authorities, who are given the right to take final action 
 in a procedure resulting in the creation of the franchise.^ 
 The main purpose of streets or highways being to facilitate 
 travel and transportation, new and improved agencies for 
 effecting that purpose must be presumed to have been in 
 contemplation^ in addition to those in existence when the 
 ways were established. An occupation of the streets other- 
 wise than for travel and transportation is presumptively in- 
 ferior and subordinate to the dominant easement of the pub- 
 lic for highway purposes, for if not so, the primary object of 
 their dedication or appropriation might be largely defeated. 
 And the fact that permission is granted to occupy the streets 
 or highways for a purpose other than travel, does not confer 
 a prior and paramount right to occupy them to the exclu- 
 
 ture does so subject to the power 
 of municipal corporations to enact 
 such ordinances as do not unrea- 
 sonably interfere with the exercise 
 of the franchises granted; e. g., an 
 ordinance prohibiting a street rail- 
 way company from placing salt on 
 its tracks. State, etc., Co. v. City 
 of Elizabeth, 34 Atl. 146. The 
 provision of a city charter making 
 it unlawful to grant the right to 
 construct a street railroad, except 
 to one who will E^ree to carry pas- 
 sengers thereon at the lowest rate 
 of fare, is superseded by a gen- 
 eral statute giving every railroad 
 corporation the power to con- 
 struct its road upon any highway 
 which its route shall take, subject 
 to the limitations of such charter. 
 Adamson v. Nassau El. Ry. Co., 
 89 Hun (N. Y.), 261, 68 St. Rep. 
 (N. Y.) 851, 34 N. Y. Supp. 1073. 
 
 And see Brooklyn City, etc., R. 
 Co. v. Coney Island, etc., R. Co.,. 
 
 35 Barb. (N. Y.) 364; Harrisburg 
 City Pass. Ry. Co. v. Harrisburg 
 (Pa.), 24 Atl. 56; Paterson, etc.. 
 Horse R. Co. v. Paterson, 24 N. 
 J. Eq. 158; Milwaukee v. Mil- 
 waukee, etc., R. Co., 7 Wis. 852; 
 Chicago, etc., R. Co. v. Newton, 
 
 36 Iowa, 299. 
 
 8. Ghee v. Northern Union Gas 
 Co., 158 N. Y. 510, 513, 53 N. E. 
 692. The power which the State 
 primarily had, over the streets and 
 highways in the State or in any 
 city of the State, has, in St. Louis, 
 been transferred to that city; and 
 the general assembly has no power 
 to authorize the construction, 
 operation, or transfer of any street 
 railway in that city without its 
 consent. State, Crow v. Lindell 
 R. Co., SI Mo. 162, 52 S. W. 248. 
 
LEGISLATIVE CONTROL OF STREETS. 
 
 51 
 
 sion of their use for travel in a mode different from that 
 which obtained when such permission was given.' 
 
 9. Cincinnati Inclined Plane Ry. 
 Co. V. Cincinnati, etc., Tel. Assn., 
 3 Am. Electl. Cas. 443, 48 Ohio St. 
 390, 27 N. E. 890; Hudson River 
 Tel. Co. V. Watervliet Turnp. & 
 R. Co., 13s N. Y. 393, 32 N. E. 
 148; Taggart v. Newport St. R. 
 Co., 16 R. I. 668; Macomber v. 
 Nichols, 34 Mich. 212. In the 
 Hudson River Tel. Co. Case, 135 
 N. Y. 393, supra, the court, at 
 page 404, said : " It would be an 
 unjust reflection upon the wisdom 
 and intelligence of the law-mak- 
 ing body to assume that they in- 
 tended to confine the scope of 
 their legislation to the present, 
 and to exclude all consideration 
 for the developments of the future. 
 If any presum,ption is to be in- 
 dulged in, it is that general legis- 
 lative enactments are mindful of 
 the growth and increasing needs 
 of society, and they should be con- 
 strued to encourage, rather than 
 to embarrass the inventive and 
 progressive tendency of the 
 people." 
 
 In construing a statute enacted 
 before the days of electric rail- 
 roads, authorizing the construction 
 of " street or horse railways," the 
 legislature would be presumed to 
 have intended the use of such im- 
 
 proved motive power as future in- 
 vention might produce and public 
 utility and convenience require; 
 and thus the statute should be- 
 given a construction broad 
 enough to include the use of elec- 
 tricity. Lonergan v. La Fayette St. 
 Ry. Co. (Ind.), 3 Am. Electl. Cas. 
 273. An act conferring upon cities 
 the right to the use of any motive 
 power whatever, or any combina- 
 tion of motive power, upon their 
 street' railways, authorizes the use 
 of electricity or any other im- 
 proved method of locomotion, al- 
 though not invented or discovered 
 at its passage. Detroit City R. 
 Co. V. Mills, 85 Mich. 634, 10 Ry. 
 & Corp. L. J. 104, 46 Am. & Eng. 
 R. Cas. 608, 48 N. W. 1007. 
 
 It is not necessary for the dec- 
 laration of incorporation, or the 
 charter granted by the act of the- 
 legislature, or the consent of the 
 municipal authorities to limit the 
 number of tracks to be con- 
 structed upon the streets, or to 
 designate the exact location of the 
 tracks of said company latitudi- 
 nally upon the streets along which 
 the company proposes to construct 
 its railway. Baker v. Selma St.. 
 & S. Ry. Co. (Ala.), 30 So. 464. 
 
52 STREET SURFACE RAILROADS. 
 
 CHAPTER II. 
 The Franchise; How Acquired; How Limited. 
 
 Section i. Its character; how distinguished from charter or license. 
 
 2. Power of municipality to grant. 
 
 3. Municipality; how further controlled in granting franchise. 
 
 4. Certificate of public convenience and a necessity. 
 
 5. Consent of local authorities. 
 
 6. Consents of abutting property-owners. 
 
 7. Bids for franchise. 
 
 8. Extensions. 
 
 g. Proceedings, if property-owners do not consent. 
 
 10. Proceedings without consent; how prevented. 
 
 11. Conditions imposed with consent; rights of the grantee 
 
 and public thereunder. 
 
 12. When consents may be presumed. 
 
 13. Acceptance of franchise. 
 
 14. Rights under franchise; how and by whom questioned. 
 
 15. Conflicting grants of franchises. 
 
 16. Sale or lease of franchise and property. 
 
 17. Abandonment or revocation of the franchise. 
 
 18. Expiration of franchise and renewal. 
 
 19. Forfeiture; how waived. 
 
 20. When specific performance of contract for mutual co-opera- 
 
 tion in securing franchise, will be refused. 
 
 § 1. Its character; how distingnished from charter or license. — 
 Franchises are special privileges conferred by government 
 upon individuals, and which do not belong to the citizens 
 of the country, generally, of common right. It is essential 
 to the character of a franchise that it should be a grant from 
 the sovereign authority, and in this country no franchise can 
 be held which is not derived from a law of the State.' Cor- 
 porate franchises are of two kinds or classes; the one, the 
 right of the members to exist as a corporate body, evi- 
 dence by the charter or articles of incorporation, the legis- 
 
 I. Bank of Augusta v. Earle, 38 U. S. (13 Pet.) 519, 595, 10 L. Ed. 
 -274. 311. 
 
THE FRANCHISE. 
 
 53- 
 
 lature under the reserve power to repeal may take away at 
 any time; the other, the powers and privileges vested in and 
 to be exercised by the corporate body as such, are the 
 franchises of, or belonging to, the corporation, which are 
 inseparable from its tangible property, and which, as prop- 
 erty, will survive the dissolution of the corporation itself.^ 
 
 2. " The essential properties of 
 corporate existence are quite dis- 
 tinct from the franchises of the 
 corporation. The franchise of 
 being a corporation belongs to the 
 corporators, while the powers and 
 privileges vested in and to be 
 exercised by the corporate body 
 as such, are the franchises of the 
 corporation. The latter has no 
 power to dispose of the franchise 
 of its members, which may sur- 
 Trive in the mere fact of corporate 
 existence after the corporation has 
 parted with all its property and 
 all its franchises." Memphis, etc., 
 R. Co. V. Berry, II2 U. S. 609, 621, 
 28 L. Ed. 837, 841. And see Hazle- 
 ton Boiler Co. v. Hazleton Tripod 
 Boiler Co., 137 111. 233, 28 N. E. 
 248. 
 
 At common law it has been held 
 that real estate acquired for the 
 use of a canal company cannot be 
 sold on execution against the cor- 
 poration separate from its fran- 
 chise, so as to destroy or impair 
 the value of such franchise. Gue 
 V. Tide Water Canal Co., 65 U. S. 
 (24 How.) 254, 16 L. Ed. 635. The 
 tracks of a railroad company, and 
 the franchise of maintaining and 
 operating its road in a public 
 street are also inseparable, in the 
 absence of express legislative au- 
 thority providing for their sever- 
 ance. The statute of New York 
 
 authorizing the sale of the fran- 
 chise and property of a railroad" 
 company on execution seems to 
 recognize the indissolubility of the 
 connection between the corporeal 
 property and its incorporeal right 
 of enjoyment. People v. O'Brien, 
 iiiN. Y. 1,47, 18N. E. 692. "The 
 term ' franchise ' has several sig- 
 nifications, and there is some con- 
 fusion in its use. The better opin- 
 ion, adopted from the authorities, 
 seems to be that it consists of the 
 entire privilege embraced in and 
 constituting the grant." Bridge- 
 port v. N. Y., etc., R. Co., 36 
 Conn. 266. A statute authorizing 
 a village to issue bonds for water 
 works is not the grant of a corpo- 
 rate franchise. Brady v. Moulton, 
 61 Minn. 185, 63 N. W. 489; At- 
 torney-General V. Chicago, etc., 
 R. Co., 35 Wis. 425. " The kinda 
 of business which corporations or- 
 ganized either under title II, chap, 
 ter 34 (of Gen. Stat. 1878), or un- 
 der the act of 1873, are authorized 
 to carry on, are powers but not 
 franchises, because it is a right 
 possessed by all citizens who 
 choose to engage in it, without any 
 legislative grant. The only fran- 
 chise which such corporations pos- 
 sess is the general franchise to be 
 or exist as a corporate entity. 
 Hence if they engage in any busi- 
 ness not authorized by the statute 
 
.54 
 
 STREET SURFACE RAILROADS. 
 
 The latter class of franchises cannot be afifected by legisla- 
 tion freed from the restrictions of the Federal Constitution 
 as to the impairment of the obligation of contracts and 
 interference with vested rights, except that the right re- 
 served to the legislature to alter and amend, confers power 
 to pass all needful laws for the regulation and control of the 
 domestic afifairs of the corporation.^ And this right, in part 
 at least, is generally delegated to municipal authorities. 
 These authorities may ordinarily determine and dictate in 
 what manner and upon what conditions the corporation may 
 exercise the franchises conferred by the State, but nothing 
 more.* Not all privileges however of a corporation are 
 
 it is ultra vires, or in excess of 
 their powers, but not a usurpation 
 of franchises not granted, nor 
 necessarily a misuser of those 
 granted." State v. Minnesota 
 Thresher Mfg. Co., 40 Minn. 213, 
 225, 41 N. W. 1020. 
 
 " It is not necessary in this case 
 that we should hold that the fran- 
 chise of this company, to be a cor- 
 poration, is a subject of sale or 
 transfer. The right to build, own, 
 manage, and run a railroad, and 
 take the tolls thereon, is not of 
 necessity of a corporate character 
 or dependent upon corporate 
 rights. It may belong to and be 
 enjoyed by natural persons, and 
 there is nothing in its nature in- 
 consistent with its being assign- 
 able." Middlebury Bank v. Ed- 
 gerton, 30 Vt. 190; Peter v. Ken- 
 dal, 6 B. & C. 703, 13 E. C. L. 
 299. 
 
 In Ev. L. St. J. O. H. V. Buffalo 
 Hyd. Assn., 64 N. Y. 561, 565, it 
 was held that the estate and inter- 
 est of a corporation in real prop- 
 erty, whether a mere easement or 
 
 a right of possession or title in fee, 
 was the subject of a sale as prop- 
 erty distinguished from the incor- 
 poreal franchises of the company, 
 under the act of incorporation. 
 And see GrifEn v. Spencer, 6 Hill 
 (N. Y.), 525; Goodrich v. Bur- 
 bank, 12 Allen (Mass.), 459. 
 
 In New York the statute pro- 
 vides that whenever any street sur- 
 face railroad corporation shall 
 have been dissolved or annulled, 
 or its charter repealed, the con- 
 sents authorizing its construction 
 shall continue in full force, efficacy, 
 and being, and shall be sold at auc- 
 tion to the local authorities. The 
 Railroad Law, chap. 565 of 1890, 
 § IDS, as amd. by chap. 676 of 
 1892, 3 Heydecker's Gen. Laws 
 (2d ed.), 3320. 
 
 3. People v. O'Brien, in N. Y. 
 I, 48, 18 N. E. 692; Munn v. Illi- 
 nois, 94 U. S. (4 Otto) 113, 24 L. 
 Ed. 77- 
 
 4. Chicago City Ry. Co. v. Peo- 
 ple, 73 111. 541, S48. And see Oak- 
 land, etc., R. Co. V. Brooklyn, etc., 
 R. Co., 45 Cal. 365. 
 
THE FRANCHISE. 55 
 
 franchises; for example, the immunity of particular property 
 of a corporation from taxation is a privileg-e which may 
 sometimes be transferred under that designation ;5 but such 
 immunity is not itself a franchise of a railroad corporation 
 which passes as such, without other description, to a pur- 
 chaser of its property.* The franchises of a railroad cor- 
 poration are rights or privileges which are essential to the 
 operation of the corporation, and without which its road 
 and works would be of little value; such as the franchises to 
 run cars, to take tolls, to appropriate earth and gravel for 
 the bed of its road, or water for its engines, and the like. 
 They are positive rights or privileges, without the posses- 
 sion of which the road of the company could not be success- 
 fully worked.' There are certain other privileges, too, which 
 are merely licenses, and not franchises, as where a corpora- 
 tion has a specific power to construct, maintain, and operate 
 a railroad in a city, subject however to the consent of the 
 city, and in such manner and upon such conditions as the 
 city may impose; if the city, by ordinance, grants the privi- 
 lege of constructing and operating the railroad upon a 
 certain street, the grant by the municipality is a mere license 
 and not a franchise.* If the right is not exercised within the 
 
 5. Humphrey v. Pegues, 83 U. Columbus, etc., R. Co., 10 Ohio 
 S. (16 Wall.) 244, 21 L. Ed. 326. St. 372; Meyer v. Johnson, S3 
 
 6. Morgan v. Louisiana, 93 U. Ala. 237; Mayor v. Norwich, etc., 
 S. (3 Otto) 217, 23 L. Ed. 860. R. Co., 109 Mass. 103. 
 
 7. Morgan v. Louisiana, 93 U. 8. Belleville v. Citizens' Horse R. 
 S. (3 Otto) 217, 23 L. Ed. 860; Co., 152 111. 171. 38 N. E. 584, 26 
 Chesapeake & Ohio Ry. Co. v. L. R. A. 681; Chicago City Ry. 
 Miller, 114 U. S. 176, 29 L. Ed. Co. v. People, 73 111. 541; Atchison 
 121; Morawetz Corp., § 924; St. Ry. Co. v. Mo. Pac. R. Co., 
 Cook V. Detroit, etc., R. Co., 43 3i Kan. 660. And see Wabash R. 
 Mich. 349, 5 N. W. 390; Eldridge Co. v. Defiance, 167 U. S. 88, 42 
 V. Smith, 34 Vt. 484; Pierce v. L. Ed. 87. Where the statute 
 Emery, 32 N. H. 484; Coe v. grants a board of aldermen full 
 
56 STREET SURFACE RAILROADS. 
 
 time limited by the ordinance,^ or if exercised and subse- 
 quently -abandoned," it may be conferred by the city upon 
 another company without first procuring a judicial decree 
 of forfeiture. Where, by location in city streets under legis- 
 lative authority and municipal grant, the railroad has ac- 
 quired a right of way, its franchise consists in the right to 
 lay and use exclusively a railroad, subject to the duty of 
 running cars thereon. It has no interest in, or control over, 
 that part of the street or avenue not occupied by its own 
 road, except that common to the rest of the community, viz., 
 that it shall be kept free and clear for public use." And 
 under the authority usually delegated to municipalities an 
 exclusive or perpetual right to use a street for a street 
 surface railroad cannot be conferred. Easements in the pub- 
 lic streets for a limited time are dififerent and have dififerent 
 consequences from those given in perpetuity. Those re- 
 served from monopoly are different and have different con- 
 sequences from those fixed in monopoly; consequently, those 
 
 power to lay horse railroad tracks 10. Great Central R. Co. v. Gulf, 
 
 and regulate the running of cars etc., R. Co., 63 Tex. 529, 26 Am. 
 
 thereon, a license to a railroad cor- & Eng. R. Cas. 114. " If the State 
 
 poration to reasonably use a high- in granting a franchise imposes a 
 
 way is not such appropriation of limitation or condition that a cer- 
 
 an additional easement as, without tain thing shall be completed 
 
 special provision therefor, will en- within a given time, no other 
 
 title abutting owners to compensa- power can waive a forfeiture aris- 
 
 tion; it violates no constitutional ing from the nonperformance of 
 
 right. Attorney-General v. Met. the condition. But when a mere 
 
 R. Co., 125 Mass. 515. A permis- license is granted by a city upon 
 
 sion to occupy a street is not " a conditions subsequent, it may, for 
 
 special privilege or immunity," satisfactory reasons, waive a strict 
 
 within the meaning of the consti- performance of the condition." 
 
 tutional inhibition. Atchison St. Chicago City R. Co. v. People, Ti 
 
 Ry. Co. V. Mo. Pac. R. Co., 31 111. 541. 
 
 Kan. 660. II. N. Y. & H. R. Co. v. 
 
 9. Atchison St. R. Co. v. Nave, Forty-second St., etc., R. Co., 50. 
 
 38 Kan. 744, 36 Am. & Eng. R. Barb. (N. Y.) 285. 
 Cas. 29. 
 
THE FRANCHISE. 5p^ 
 
 given in perpetuity and in monopoly must have for their 
 authority explicit permission, 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 franchise, 
 that is the right to construct, maintain, and operate a rail- 
 road in the public streets, cannot be sold on execution, '^ nor 
 will an action lie at law to recover damages against one 
 claimed to have usurped the right, nor to recover possession 
 of the franchise.'* If by contract with municipal authorities 
 a street railroad company is given a right to operate a rail- 
 road in certain streets to the exclusion of all others, the 
 right thus acquired, although a property right, is not a 
 franchise, unless the statute expressly authorized the city 
 to grant such exclusive right.'^ But a right secured to it 
 by the State itself, by special act of the legislature, to charge 
 a specified rate of fare is a privilege or franchise in the 
 nature of property which vests in the corporation, and until 
 repealed is entitled to the same protection from invasion as 
 
 12. Detroit Citizens' St. R. Co. second, etc., R. Co., so Barb. (N. 
 V. Detroit Ry., 171 U. S. 48, 43 L. Y.) 285. 
 
 Ed. (>T, 18 Sup. Ct. Rep. 732, affg. 14- Budd v. Multnomah St. Ry. 
 
 no Mich. 384, 35 L- R- A. 859, 3 Co., 15 Oreg. 404. IS Pac. 654. 
 
 Det. L. N. z-jy, S Am. & Eng. iS- Milhau v. Sharp, 27 N. Y. 
 
 R. Cas. (N. S.) IS, 28 Chicago 811. In the case cited it was held 
 
 L. N. 409, 68 N. W. 304. In the that a resolution of the common 
 
 case cited, the statute considered council authorizing private per- 
 
 provided that the corporations sons to construct and operate a 
 
 formed to use a street for street railroad upon certain conditions, 
 
 railroad purposes should have the without limitation as to time, or 
 
 exclusive right to use and operate reserving a power of revocation, 
 
 any railroads constructed, owned, was not license, nor an act of mu- 
 
 or held by them, provided that nicipal legislation merely, but a 
 
 they should not construct a rail- contract, which, if valid, it could 
 
 road through the streets of any not abrogate. And see Met. St. 
 
 town or city without the consent Ry. Co. v. Chicago, etc., Ry. Co.. 
 
 •of the municipal authorities. 87 111. 3I7- 
 
 13. N. Y. & H. R. Co. V. Forty- 
 
58 STREET SURFACE RAILROADS. 
 
 any other species of property. > It is alienable, transferable 
 by mortgage, and passes with the property to a purchaser 
 under a judgment in foreclosure, or may be transmitted by 
 conveyance and by consolidation of different corporations.'^ 
 
 § 2. Power of municipality to grants Street surface rail- 
 roads had their origin in the days of special legislation. 
 Each company then had its own act of incorporation, in 
 which its route was described and its powers defined. These 
 companies were confined to the cities and large towns of 
 the State, and their cars were moved by horse power, and 
 were a substitute for the omnibus and other vehicles devoted 
 to the carriage of passengers, which had been previously in 
 common use. In later years, under constitutional limita- 
 tions, general laws have been passed in most of the States- 
 providing for the organization of these companies to con- 
 struct, maintain, and operate street surface railroads, for 
 public use, and limited in many States to the conveyance of 
 passengers. These general laws usually confer upon the 
 local authorities over streets and highways power to control 
 the location, construction, and operation of the railroad, and 
 prohibit the use of streets for railroad purposes without their 
 consent.'^ The State determines for each of its municipal 
 corporations the powers it should exercise and the capacities 
 it should possess, and what restrictions should be placed 
 upon these, as well to prevent clashing of action and interest 
 in the State as to protect individual corporators against in- 
 justice and oppression at the hands of the local majority.'* 
 
 16. Parker v. E. C. & M. R. 18. Detroit Citizens' St. Ry. Co> 
 Co., i6s'N. Y. 274, 280. V. Detroit Ry. Co., 171 U. S. 48, 
 
 17. Penn. Ry. Co. v. Mont. Co. 43 L. Ed. 67. 
 Pass. Ry. Co., S Am. Electl. Cas. 
 
 166, 167 Pa. St. 62. 
 
MUNICIPAL POWER TO GRANT FRANCHISE. 59. 
 
 The power to grant a franchise does not exist in the local 
 authority unless unrriistakably conferred by the legislature or 
 indispensably necessary to the exercise of some other power 
 expressly conferred. '» And a statute in general terms au- 
 thorizing a municipality to grant such a franchise will not 
 be construed to permit it to giye a company the exclusive 
 or the perpetual right to operate a street surface railroad in 
 a public street.^" While city authorities have no right to 
 grant street railway franchises, except in so far as they may 
 be authorized by the legislature, and then only in the man- 
 ner and under the conditions prescribed by the statute;^' 
 yet, where power is given by the charter of the company to 
 lay its track along the streets of a city, the city authorities 
 may consent to such use of its streets by the company, al- 
 though there may be no express power in the charter of the 
 city authorizing it to grant such a privilege." An irrepeal- 
 
 19. Detroit Citizens' St. Ry. Co. v. Sim. R. Co., 43 App. Div. (N. 
 Case, supra; Louisville & N. R. Y.) 514. In the absence of a stat- 
 Co. V. Mobile, J. & C. K. R. Co., ute there is no implied restriction 
 26 So. 895. springing from public policy upon 
 
 20. Detroit Citizens' St. Ry. Co. the power of a city to grant a 
 Case, supra. A city has no power street easement to a railroad or 
 or authority to confer upon any street car company, having the re- 
 corporation the exclusive right to quisite franchises from the State, 
 use one of its streets for its own unlimited as to time. Louisville 
 business. Grand Ave. Ry. Co. v. Trust Co. v. Cincinnati (C. C. 
 People's Ry. Co. (Mo.), 6 Am. App. 6th C), 76 Fed. 296, 22 C. 
 Electl. Cas. 99; St. Louis Transfer C. A. 234, 47 U. S. App. 36. 
 Ry. Co. V. St. Louis, etc., Ter- Where a railroad track is laid 
 minal Ry. Co., iii Mo. 666, 20 down in a street, by authority of 
 S. W. 319; Birmingham, etc., Ry. the city council, to connect a pri- 
 Co. V. Birmingham St. Ry. Co., vate manufacturing establishment 
 78 Ala. 465. w'*'^ other railroad tracks, it be- 
 
 21. Beekman v. Third Ave. R. comes a public highway and the 
 Co., 153 N. Y. 144, 152, 47 N. E. city council has the right to de- 
 277 vote the operation of the street 
 
 22. Almand v. Atl., etc., Ry. Co., to that use. Parlin v. Mills, 11 111. 
 io8 Ga. 417, 33 S. E. 6; Gaedeke App. 396. A railroad may be per- 
 
'60 STREET SURFACE RAILROADS. 
 
 able contract for the use of a street by a street railroad com- 
 pany can be made by a municipal corporation which is in- 
 vested with full power to regulate and control the use of 
 streets; and it has been held that such irrevocable consent 
 can be given under a statute providing that companies may 
 construct such railroads " with the consent of the corporate 
 authorities," especially when other statutes provide for the 
 giving of mortgages on such railways, which shall be deemed 
 mortgages upon realty. "^^ A street railroad company cannot 
 build under its charter alone. It must have the consent of 
 the proper municipal or local authorities, or it cannot move. 
 If the proposed line passes through a city, borough, or town- 
 ship intermediate the termini, and that city, borough, or 
 township refuses its permission, the power to build the road 
 <iescribed in the application and charter cannot be exercised. 
 It must be possible for the company to complete its line, 
 before it has the right, as against any city, borough, or town- 
 
 mitted by the city authorities to Bell Telephone Co. v. Montreal 
 use a highway reserved for public St. R. Co. (Rap. Jud. Quebec), 6 
 use as a highway and for other B. R. 223. A street railroad corn- 
 public uses, under an act of Con- pany cannot acquire the right to 
 gress which provides for platting turn cars forty-seven feet long at 
 lands into towns. Burlington Gas the intersection of two principal 
 Light Co. V. Burlington, etc., Co., business streets of a city without 
 165 U. S. 370, 41 L. Ed. 749, 17 obtaining the right to do so from 
 Sup. Ct. Rep. 359. the common council. Rapid R. 
 The city council of Montreal Co. v. Mt. Clement, 118 Mich. 133, 
 may, by resolution, authorize the 76 N. W. 318. 
 construction in the city streets of 23. Baltimore Trust & G. Co. v. 
 a temporary electric railway in- Baltimore (C. C. D. Md.), 64 Fed. 
 tended to accommodate visitors to 153; Detroit Citizens' St. Ry. Co. 
 an exhibition, saving the recourse v. Detroit (C. C. App. 6th C), 12 
 of persons damaged by such con- C. C. A. 365, 64 Fed. 628, 26 L. 
 struction; if there be question as to R. A. 667, i Am. & Eng. R. Cas. 
 its power, a by-law subsequently (N. S.) 71. And see Coney Isl., 
 passed, authorizing the construe- P. H. & B. R. Co. v. Kennedy, 
 tion, is a sufficient ratification. 15 App. Div. (N. Y.) 588. 
 
MUNICIPAL POWER TO GRANT FRANCHISE. 6l 
 
 ship into which its line extends, to begin work. It is not 
 possible for such company to complete its line, without the 
 consent of the local authorities of the districts through which 
 it passes; and where this is refused in one or more of the 
 municipal or quasi-municipal divisions through which its line 
 runs, the building of its proposed road under its charter is 
 an impossibility.^* The power to regulate the use of streets 
 for railroad purposes is a continuing one, and a city council 
 cannot, by one exercise thereof, deprive succeeding councils 
 of the power to exercise it again when necessary in the pub- 
 lic interest.^' The power of the municipality in the pro- 
 cedure by which the franchise to construct and operate a 
 street surface railroad is granted, being such only as is ex- 
 pressly conferred, or necessarily implied from other powers 
 expressly conferred, or duties definitely prescribed, in the 
 consideration of any case which may arise or of any decision 
 reported, the statute laws of the State upon the subject must 
 be carefully studied. It is impossible within the scope of 
 this work to introduce and report all the statutes relating to 
 street surface railroads in the various States. In the notes 
 that portion of the New York Railroad Law (statute) having 
 a special reference to street surface railroads will appear as 
 illustrating, quite generally, the statute law of the various 
 States.^* 
 
 24. Penn. R. Co. v. Mont. Co. Valley Traction Co., 14 Mont. Co. 
 
 Pass. R. Co., S Am. Electl. Cas. L. Rep. 10; Perkiomen v. Same, 
 
 166, 173, 167 Pa. St. 62; Rahn id. 22. 
 
 Township v. Tamaqua, etc., R. Co., 25. New Orleans City Ry. Co. v. 
 167 Pa. St. 84, 36 W. N. C. i6s, 31 New Orleans, 44 La. Ann. 748, 11 
 Atl. 472; Penn. R. Co. v. Turtle So. yT, SO Am. & Eng. R. Cas. 391., 
 Creek, etc., Ry. Co., 36 Atl. 348; 26. The statute especially de- 
 West Jersey Traction Co. v. Cam- voted to street surface railroads 
 den Horse R. Co., 53 N. J. Eq. in New York is comprised in sec- 
 163; Reading Co. v. Schuylkill tions 90 to no of the Railroad 
 
'62 
 
 STREET SURFACE RAILROADS. 
 
 § 3. Municipality; how further controlled in granting fran- 
 tihise. — The ordinary and incidental powers of a municipal 
 corporation are not broad enough to include the power to 
 grant street railway franchises, whereby any man or corn- 
 
 Law, chapter 565 of 1890; chap. 
 39 of the Gen. Laws, 3 Heydeck- 
 er's Gen. Laws (2d ed.), pp. 3306- 
 ^324. Section go contains the gen- 
 eral provisions, and is as follows: 
 " The provisions of this article 
 shall apply to every corporation 
 which, under the provisions 
 thereof, or of any other law, has 
 constructed or shall construct or 
 operate, or has been or shall be 
 organized to construct or operate, 
 a street surface railroad, or any 
 extension or extensions, branch or 
 branches thereof, for public use in 
 the conveyance of persons and 
 property for compensation, upon 
 and along any street, avenue, road, 
 highway, or private property, in 
 any city, town or village, or in 
 any two or more civil divisions of 
 the State, and every such corpora- 
 tion must comply with the provi- 
 sions of this article. Any street 
 surface railroad corporation, at 
 any time proposing to extend the 
 road or to construct branches 
 thereof, may, from time to time, 
 make and file in each of the of- 
 fices in which its certificate of in- 
 corporation is filed, a statement of 
 the names aiid descriptions of the 
 streets, roads, avenues, highways, 
 and private property in or upon 
 which it is proposed to construct, 
 maintain or operate such exten- 
 sions or branches. Upon filing 
 any such statement and upon com- 
 plying with the conditions set 
 forth in section ninety-one of the 
 
 railroad law, every such corpora- 
 tion shall have the power and 
 privilege to construct, extend, 
 operate and maintain such road, 
 extensions or branches, upon and 
 along the streets, avenues, roads, 
 highways and private property 
 named and described in its certifi- 
 cate of incorporation or in such 
 statement. Every such corpora- 
 tion, before constructing any part 
 of its road upon or through any 
 private property described in its 
 articles of association or certificate 
 of incorporation or statement, 
 and before instituting any proceed- 
 ing for the condemnation of any 
 real property, shall make a map 
 and profile of the route adopted 
 by it upon or through any private 
 property, which map and profile 
 shall be certified by the president 
 and engineer of the company, or 
 a majority of its directors, and 
 shall be filed in the office of the 
 clerk of the county in which the 
 road is to be constructed, and all 
 provisions of section six of the 
 act hereby amended so far as ap- 
 plicable shall apply to the route 
 so located. If any such street sur- 
 face railroad company is unable to 
 agree for the purchase of any such 
 real property, or of any right or 
 easement therein required for the 
 purpose of its railroad, or if the 
 owner thereof shall be incapable 
 of selling the same, or if, after dili- 
 gent search and inquiry, the name 
 and residence of such owner can- 
 
MUNICIPAL POWER TO GRANT FRANCHISE. 
 
 63 
 
 pany of men may possess a right from which the public gen- 
 erally are extluded.^^ While the legislature can authorize 
 municipal authorities to permit private corporations to con- 
 struct and operate street railway lines upon the streets, the 
 authority thus conferred must be exercised within the limits 
 of reasonable discretion, and not so as to materially injure 
 the property of abutting owners. The entire width of the 
 street cannot, under general legislative authority, be given 
 up to railroad purposes.^* Where the city council is author- ' 
 
 not be ascertained, it shall have 
 the right to acquire title thereto 
 by condemnation in the manner 
 and by the proceedings prescribed 
 "by the condemnation law. Noth- 
 ing in this section shall be deemed 
 to authorize a street railroad cor- 
 poration to acquire real property 
 within a city by condemnation. 
 (As amended by chap. 676 of 
 1892, chap. 434 of 1893, and chap. 
 <)9S of 1895.) " 
 
 27. Eichels v. Evansville St. Ry. 
 Co., 78 Ind. 261; Coleman v. Sec- 
 ond Ave. R. Co., 38 N. Y. 201; 
 Potter V. Collis, 156 id. 16, 17, 
 50 N. E. 413; Denver, etc., R. Co. 
 V. Denver City R. Co., 2 Colo. 
 682; Blajce V. Winona, etc., R. Co., 
 19 Minn. 418. The privileges of a 
 street railroad company are deter- 
 mined, not by the ordinances un- 
 der which, with the consent of the 
 majority of the electors, it is given 
 the right to use the streets of a 
 city, but by the general law. Lin- 
 coln St. Ry. Co. v. City of Lincoln 
 (Nebr.), 84 N. W. 802. A special 
 legislative enactment, authorizing 
 a city to open, grade, and pave a 
 street as soon as a turnpike com- 
 ' pany should release all of its in- 
 terest in such portion of the high-. 
 
 way lying within the city limits, 
 contemplates a release by the com- 
 pany of the right to operate a pas- 
 senger railway which it purchased 
 at judicial sale. West Philadel- 
 phia Pass. Ry. Co. v. Philadelphia, 
 etc., Turnpike Road Co., 186 Pa. 
 St. 459, 40 Atl. 787. 
 
 28. Block V. Salt Lake City R. 
 T. Co. (Utah), 4 Am. Electl. Cas. 
 189, 199, 8 Am. R. & Corp. Rep. 
 Zf7. An ordinance requiring a street 
 railway company to run its lines 
 along narrow streets, over a nar- 
 row bridge, and near to existing 
 tracks, is unreasonable, and the 
 courts may so declare it under the 
 Rhode Island statutes. Woon- 
 socket St. Ry. Co. v. City of 
 Woonsocket, 46 Atl. 272. A mu- 
 nicipality has no authority to grant 
 a right to lay a street railroad 
 track in an alley and operate 
 cars thereon, where, by reason of 
 the narrowness of the alley, and 
 the frequency with which the cars 
 are required to be run, it would 
 result in the loss of the use of the 
 alley to the abutting owners. 
 Watson V. Robertson Ave. R. Co., 
 69 Mo. App. 548. Municipal con- 
 sent to the laying of a street rail- 
 road on the streets of a munic- 
 
64 STREET SURFACE RAILROADS. 
 
 ized to regulate the use of streets and to permit or prohibit 
 any street railroad in any street, and has " no power to 
 grant " the right to lay down any railroad track in any street 
 except on a specified petition, it cannot grant the right to use 
 a street for railroad purposes except on such petition.^* 
 Under a general grant of power to a city to permit, allow, 
 and regulate the laying down of tracks for street cars upon 
 such terms and conditions as the city may prescribe, it is not 
 empowered to grant for a term of years an exclusive fran- 
 chise to occupy its streets with street railroads.^" Nor can 
 it, under a general grant of power to regulate, improve, alter, 
 extend, and open streets, lanes, and avenues, and to cause 
 encroachments and obstructions, decayed buildings, and 
 ruins to be removed, grant an exclusive right, by contract, 
 to a street railroad corporation to construct railroad tracks 
 on all streets of a city as then laid out, or that may there- 
 after be laid out, for a period of ten years.^' It cannot grant 
 
 ipality does not authorize the lay- ticular streets one by one, but 
 ing of two distinct railroads. must be viewed as a whole. Ap- 
 West Jersey Traction Co. v. Cam- peal of Cherryfield & M. El. R. 
 den Horse R. Co., 53 N. J. Eq. Co., 95 Me. 361, 50 Atl. 27. 
 (8 Dick.) 163, 35 Atl. 49. A grant 29. North Chicago St. R. Co. v. 
 of location for tracks to a street Cheetham, 58 111. App. 318. The 
 railroad company is not void be- required petition is not invalid be- 
 cause the company's use of such cause it shows on its face that the 
 location is merely temporary. names of some of the petitioners 
 Daniels v. Commonwealth Ave. were signed by agents whose au- 
 R. Co. (Mass.), 56 N. E. 715. The thority does not appear. Tibbets 
 local authorities are vested with a v. West & S. T. St. R. Co., 153 
 judicial discretion, and may con- 111. 147, 38 N. E. 664, aflfg. 54 111. 
 sider the width and other condi- App. 180. 
 
 tions of the street, and if it be pro- 30. Parkhurst v. Capital City R. 
 
 posed to cross a bridge, whether Co., 23 Oreg. 471, 32 Pac. 304, 7 
 
 the bridge has the requisite Am. R. & Corp. Rep. 562. 
 
 strength to support a street rail- 31. Florida, C. & P. R. Co. v. 
 
 road and moving cars. The route Ocala St. & S. R. Co., 39 Fla. 306, 
 
 or location of the road cannot be 22 So. 692, 7 Am. & Eng. R. Gas. 
 
 considered with reference to par- (N. S.) 686. 
 
MUNICIPAL POWER TO GRANT FRANCHISE. 65 
 
 a right of way to a street railroad company over other streets 
 than those named in the charter of the company designating 
 its route; the charter and the ordinance must conform to 
 give a valid grant on any street of the city.^^ Where its 
 consent is not made necessary for the construction of a street 
 railroad upon its streets, it can impose no terms on such 
 construction.33 Where it has authority to grant such a right, 
 and the members composing its governing body impose 
 illegal terms intended for their individual advantage, any 
 such grant made is void.^* It cannot grailt the right to a 
 company not yet legally in existence, at least as against a 
 company previously chartered, which, with reasonable 
 promptness, obtains a later grant of permission to use the 
 same street.^' It cannot grant to a company whose charter 
 prohibits the use of certain motive power upon the streets 
 the right to use such motive power thereon.^^ And where a 
 railroad company has intruded upon a public street it is none 
 the less a trespass against the owner of the fee, although the 
 
 32. Crosstown R. Co. v. Met. St. $100 each for election expenses. 
 R. Co., 16 App. Div. (N. Y.) 229; In Lehigh Coal, etc., Co. v. Inter- 
 Citizens' St. R. Co. V. Africa, 100 Co. St. Ry. Co., 167 Pa. St. 75, 
 Tenn. 26, 42 S. W. 25. 33 W. N. C. 160, 31 Atl. 471, the 
 
 33. Philadelphia v. Empire Pass. supervisor of the township gave 
 R. Co., 177 Pa. St. 382. To avoid consent to the construction of a 
 a grade crossing at the intersec- street railroad on the highways of 
 tion of a railroad, a street railroad the township provided the corn- 
 company may diverge from the pany would employ him and his 
 highway and construct its railroad son for life at an agreed price per 
 on property secured for that pur- day; the franchise was held void, 
 pose. Penn. R. Co. v. Glenwood 35- Homestead St. Ry. Co. v. 
 & D. El. St. R. Co., 184 Pa. St. Pittsburg, etc., R. Co., 166 Pa. St. 
 227 162, 27 L. R. A. 383, 30 Atl. 950, 
 
 34. Keogh V. Pittston, etc., Ry. 955, 25 Pittsb. L. J. (N. S.) 357- 
 Co., 5 Lack. Leg. N. 242. In the But see Sloane v. People's El. R. 
 case cited the right of way was ob- Co., 7 Ohio C. C. 84. 
 
 tained by promising to the coun- 36. Farrell v. Winchester Ave. 
 
 cilmen passes over the road and R. Co., 61 Conn. 127, 23 Atl. 757- 
 
66 
 
 STREET SURFACE RAILROADS. 
 
 municipality subsequently passed an ordinance granting the 
 right to construct the road in the street.^' But where all the 
 steps necessary to jurisdiction have been taken at the time 
 of the passage of the final grant, and no fraud or unfair 
 dealings are charged, a municipality, by ordinance, estab- 
 lishing a street railroad, waives all irregularities.^* In 
 Michigan, the city's power of consent to the construction of 
 a street railroad in its streets is limited in time to the life 
 of the. franchise of the company, and any easement granted 
 will expire with the corporate life of such company.^' And 
 a municipal ordinance in that State granting to a street rail- 
 road company the exclusive privilege of extending its line 
 through such other streets as may be determined by the 
 common council is void, although the right to grant the 
 privilege to other companies, in case the company designated 
 shall not elect to build, is reserved.'*" When authority to 
 grant a franchise, or to take any step in a procedure for a 
 franchise, is given to the common council of a city, such 
 authority cannot be delegated by it to a subordinate board 
 or officer.*' Such authority as a municipality has to grant 
 a right of way in its streets to street surface railroads is 
 legislative; and the exercise of discretion is not subject to 
 
 37- So. Cal. R. Co. v. S. O. P. 
 R. Co. (Cal.), 43 Pac. 1123, 1124. 
 
 38. Hamilton v. C. & H., etc., 
 R. Co., 9 Ohio (C. P. Dec.) 174. 
 
 39. Detroit v. Detroit City Ry. 
 Co. (C. C. E. D. Mich.), 56 Fed. 
 857, s6 Am. & Eng. R. Cas. 337. 
 
 40. Detroit Citizens' St. Ry. Co. 
 V. Detroit, no Mich. 384, 35 L. R. 
 A. 859, 3 Det. L. N. 377, 5 Am. 
 & Eng. R. Cas (N. S.) 15, 68 N. 
 W. 304; affd., 171 U. S. 48, 43 L- 
 Ed. 67. 
 
 41. State, Henderson v. Bell, 
 34 Ohio St. 194; Citizens' St. Ry. 
 Co. V. Jones (C. C. Ark.), 34 Fed. 
 579; Central Crosstown R. Co. v. 
 Met. St. Ry. Co., 16 App. Div. 
 (N. Y.) 229. In the case last cited 
 the dock department of the city 
 of New York authorized the ex- 
 tension of a street railroad into a 
 street not specified in the railroad 
 company's charter. 
 
CERTIFICATE OF CONVENIENCE AND NECESSITY. 6/ 
 
 judicial control.'*^ Its act must be ultra vires, fraudulent, or 
 such as to impair a contract or a vested right, to justify 
 judicial intervention. If it make an unauthorized grant it 
 cannot be made liable for any act of its grantee.'*^ Under 
 such authority to grant a street railroad company a right of 
 way within its streets, limited however as to time, a grant of 
 such right by the municipality, without any limit of time 
 whatever, is not a valid exercise of the power, and is not 
 good as a privilege for the time specified in the statute."* 
 
 § 4. Certificate of public convenience and a necessity. — The 
 privilege of constructing and operating a railroad is not one 
 that exists in the incorporators as a common right; it is a 
 privilege or franchise that is granted by the State; and can 
 only be obtained by complying with the laws adopted by the 
 State, regulating the granting of such franchises.'^s In New 
 York a railroad corporation is prohibited from exercising 
 any of the powers conferred by law upon such a corporation 
 until the board of railroad commissioners shall certify that 
 
 42. Adamson v. Nassau El. R. The aldermen of Brooklyn, claim- 
 Co., 89 Hun (N. Y.), 261. ing that the charter of Greater 
 
 43. Forman v. New Orleans, New York had not yet taken ef- 
 etc, R. Co., 40 La. Ann. 446, 4 So. feet, granted consent to a railroad 
 246; Murphy v. Chicago, 29 111. company to operate in certain 
 279; Green v. Portland, 32 Me. streets without any limitation as 
 431; Hinchman v. Paterson Horse to time. It was held that the 
 R. Co., 2 C. E. Green (N. J.), 75; prohibition of the new charter took 
 Rowe V. Augusta Council, 24 Ga. effect immediately upon the pas- 
 326. sage of the act, and that the exer- 
 
 44. In the charter of Greater cise of power was not good as a 
 New York it is provided that no consent for twenty-five years, 
 franchise or right to use the Blaschko v. Wurster, 156 N. Y. 
 streets, avenues, parkways, or 437, S3 N. E. 303; Norris v. Wur- 
 liighways of the city should be ster, 23 App. Div. (N. Y.) 124. 
 granted by the municipal assembly 45- Matter of A. J. & G. R. Co., 
 to any person or corporation for 86 Hun (N. Y.), 578,. 584. 33 N. Y. 
 a longer period than twenty-five Supp. 1009, 67 St. Rep. (N- Y.) 
 years. L. 1897, chap. 378, § 73- 878. 
 
68 
 
 STREET SURFACE RAILROADS. 
 
 certain specified conditions have been complied with, and 
 also that " public convenience and a necessity " require the 
 construction of such railroad as proposed in its charter or 
 articles of association.*^ Thus, the question of public con- 
 venience and a necessity is judicially determined at the very 
 
 46. People, Steward v. Railroad 
 Comrs., 160 N. Y. 202, 207, 54 
 N. E. 6p7. 
 
 The statute (chap. 565 of 1890, 
 3 Heydecker's Gen. Laws [2d ed.], 
 3287, 3288) is as follows: 
 
 " § 59. Requisites to exercise 
 of powers of future railroad cor- 
 porations — No railroad corpora- 
 tion hereafter formed under the 
 laws of this State shall exercise 
 the powers conferred by law upon 
 such corporations or begin the 
 construction of its road until the 
 directors shall cause a copy of the 
 articles of association to be pub- 
 lished in one or more newspapers 
 in each county in which the road 
 is proposed to be located, at least 
 once a week for three successive 
 weeks, and shall file satisfactory 
 proof thereof with the board of 
 railroad commissioners; nor until 
 the board of railroad commission- 
 ers shall certify that the foregoing 
 conditions have been complied 
 with, and also that public con- 
 venience and a necessity require 
 the construction of said railroad as 
 proposed in said articles of asso- 
 ciation. The foregoing certifi- 
 cate shall be applied for within 
 six months after the completion 
 of the three weeks' publication 
 hereinbefore provided for. If 
 certificate is refused no further 
 proceedings shall be had before 
 said board, but the application 
 
 may be renewed after one year 
 from the date of such refusal. 
 Prior to granting or refusing said 
 certificate the board shall have a 
 right to permit errors, omissions, 
 or defects to be supplied and cor- 
 rected. After a refusal to grant 
 such certificate the board shall 
 certify a copy of all maps and pa- 
 pers on file in its office and of the 
 findings of the board when so re- 
 quested by the directors afore- 
 said. Such directors may there- 
 upon present the same to a general 
 term of the supreme court of the 
 department within which said road 
 is proposed in whole or in part to 
 be constructed, and said general 
 term shall have power, in its dis- 
 cretion, to order said board, for 
 reasons stated, to issue said cer- 
 tificate, and it shall be issued ac- 
 cordingly. Such certificate shall 
 be filed in the office of the secre- 
 tary of state, and a copy thereof, 
 certified to be a copy by the sec- 
 retary of state, or his deputy, shall 
 be evidence of the fact therein 
 stated. Nothing in this section 
 shall prevent any such railroad 
 corporation from causing such ex- 
 aminations and surveys for its pro- 
 posed railroad to be made as may 
 be necessary to the selection of 
 the most advantageous route; and 
 for such purpose by its officers or 
 agents and servants, to enter upon 
 the lands or water of any person, 
 
CERTIFICATE OF CONVENIENCE AND NECESSITY. 
 
 69 
 
 beginning of the corporate life of a railroad corporation; 
 and a right of review in the courts by a writ of certiorari is 
 insured/' The decision of the board of railroad commis- 
 sioners upon the question will not be reversed unless it is 
 made clearly to appear that it was founded upon erroneous 
 legal principles, or was contrary to the clear weight of evi- 
 dence.** In determining the question, the commissioners 
 have the right to administer oaths to witnesses, to authorize 
 their examination and cross-examination by counsel, and 
 
 but subject to the responsibility 
 for all damages which shall be 
 done thereto. (As amended by- 
 chap. 676 of 1892, and chap. 545 of 
 
 1895, § I.) " 
 
 " § 59a. Sailroad commission- 
 ers may certify part of the route 
 of a street surface railroad — 
 PoTwer to revoke certificates — 
 Street surface railroad exten- 
 sion — Whenever application is 
 made by a street surface railroad 
 company for a certificate of pub- 
 lic convenience and a necessity as 
 required by the provisions of the 
 foregoing section, and it shall ap- 
 pear to the board of railroad com- 
 missioners, after examination of 
 the proposed route of the appli- 
 cant company that public con- 
 venience and a necessity do not 
 require the construction of said 
 railroad as proposed in its articles 
 of association but do require the 
 construction of a part of the said 
 railroad, the board of railroad com- 
 missioners may issue its certificate 
 for the constriiction of such part 
 of the said railroad as seems to it 
 to be required by public conven- 
 ience and a necessity. In case any 
 railroad company which shall here- 
 after obtain the certificate of the 
 
 board of railroad commissioners 
 that public convenience and a ne- 
 cessity require the construction of 
 the whole or a part of the said 
 railroad shall fail to begin such 
 construction within two years from 
 the date of the issuing of said cer- 
 tificate, the board of railroad com- 
 missioners may inquire into the 
 reason for such failure, and the 
 said board may revoke said cer- 
 tificate if it shall appear to it to 
 be in the public interest so to do. 
 (Added by chap. 643 of 1898, § i.) " 
 
 47. People, Steward v. Railroad 
 Comrs., 160 N. Y. 202, 211, S4 N. 
 E. 697; People, Loughran v. Rail- 
 road Comrs., 158 N. Y. 421; Peo- 
 ple, Babylon R. Co. v. Railroad 
 Comrs., id. 711, 53 N. E. 1129. 
 
 48. People, Terminal R. v. Rail- 
 road Comrs., S3 App. Div. (N. 
 Y.) 61, 6s N. Y. Supp. (99 St. 
 Rep.) 597; affd., 164 N. Y. 572, 58 
 N. E. 1091; Matter of A. J. & G. 
 R. Co., 86 Hun (N. Y.), 578, 584, 
 33 N. Y. Supp. 1009, 67 St. Rep. 
 (N. Y.) 878; Matter of Auburn & 
 Western R. Co., 37 App. Div. (N. 
 Y.) 162; Matter of Depew & S. W. 
 R. Co., 92 Hun (N. Y.), 407, 38 
 N. Y. Supp. 528, 73 St. Rep. (N. 
 Y.) 578. 
 
•JO STREET SURFACE RAILROADS. 
 
 while not bound by the technical rules governing the ad- 
 mission of evidence in actions and proceedings pending 
 before the courts, the commissioners are authorized to, and 
 do, receive oral testimony, written and printed documents, 
 and affidavits which in their opinion tend to throw light 
 upon the question which in the end they are to pass upon, 
 namely, whether " public convenience and a necessity " re- 
 quire the construction of the proposed railroad/' But affi- 
 davits expressing merely the opinion of the defendants as 
 to whether or not the construction of the railroad would be 
 conducive to public convenience will not alone authorize 
 the railroad commissioners to issue the certificate.'" Upon 
 the review the court is governed, as to the preponderance of 
 evidence, by the same rule which is appHcable to a motion 
 to set aside a verdict in an action in Supreme Court. '' 
 The board of railroad commissioners are not entitled to be 
 heard on the appeal from their decision. '^ If the convenience 
 and necessity of the public in a certain locality require the 
 railroad, the certificate should be granted although it would 
 enhance the value of lands in that locality desired for the 
 purposes of the State park.'^ The certificate of public con- 
 venience and of necessity is not requisite where a street 
 surface railroad is about to make, in good faith, an extension 
 of its road.'"* In some of the other States the order of the 
 
 49- People, Steward v. Railroad 366; Matter of Kings, Q. & S. R. 
 
 Comrs., 160 N. Y. 202, 211, 54 N. Co., 6 id. 241, 39 N. Y. Supp. 1004; 
 
 E. 697. Matter of New Hamburgh R. Co., 
 
 50. People, Terminal R. v. Rail- 76 Hun (N. Y.), 76. 
 
 road Comrs., S3 App. Div. (N. 52. People, Steward v. Railroad 
 
 Y.) 61, 6s N. Y. Supp. (99 St. Comrs., 160 N. Y. 202, 211, 54 N. 
 
 Rep.) 597; affd., 164 N. Y. S72, 58 E. 697. 
 
 N- E. 1091. 53. Matter of Long Lake R. 
 
 51. People, L. L R. Co. v. Rail- Co., 11 App. Div. (N. Y.) 233. 
 road Comrs., 42 App. Div. (N. Y.) 54. D., L. & W. R. Co. v. 
 
CONSENT OF LOCAL AUTHORITIES. /I 
 
 board of railroad commissioners under the statutes con- 
 trolling them is not a judgment or conclusion subject for 
 review, but is merely the basis of an action wherein the 
 rights of the parties are investigated and determined by pre- 
 scribed rules of judicial inquiry.ss " Public convenience or 
 necessity " as used in the Connecticut statute means such a 
 condition existing at the time of the apphcation in respect 
 to the applying railroad, the mode of public travel, the man- 
 ner in which those needs are to be supplied, and the probable 
 effect of the proposed road upon the whole question of ade- 
 quately supplying those needs, as well as in respect to the 
 road proposed to be paralleled and the financial ability of the 
 applying road, that in the judgment of the trior vdll justify 
 the interference with the private right of the latter road.^^ 
 
 § 6. Consent of local authorities. — In nearly every State, as 
 we have seen, the Constitution or some general statutory pro- 
 vision prohibits the construction of a street railroad in any 
 street or highway without the consent of the local auth'orities 
 having supervision of streets and highways, and a certain 
 number of abutting property-owners, or the report of com- 
 missioners determining that the road ought to be built.s' If 
 
 Syracuse L. & B. Co., 28 Misc. S6. Re Shelton St. R. Co., 69 
 
 Rep. (N. Y.) 456; Bohmer v. Conn. 626, 9 Am. & Eng. R. Cas. 
 
 Hafifen, 35 App. Div. (N. Y.) 381; (N. S.) 186, 38 Atl. 362. 
 
 affd., 161 N. Y. 390. 57- N. Y. Const., art. Ill, § 18, 
 
 55. State V. Mason City & Ft. provides: "The legislature shall 
 
 D. R. Co., 85 Iowa, 516, 52 N. W. not pass a private or local bill in 
 
 490; Minneapolis & St. L. R. any of the following cases: * * * 
 
 Co. V. Minnesota Railroad Comrs., Granting to any corporation, asso- 
 
 44 Minn. 336, 46 N. W. 559; W. U. elation, or individual the right to 
 
 T. Co. v. Mississippi Railroad lay down railroad tracks. * * * 
 
 Comrs., 74 Miss. 80, 21 So. 15; The legislature shall pass general 
 
 Railroad Comrs. v. Houston & T. laws providing for the cases enu- 
 
 C. R. Co., 90 Tex. 340, 38 S. W. merated in the section and for all 
 
 750. other cases which, in its judgment, 
 
72 
 
 STREET SURFACE RAILROADS. 
 
 may be provided for by general 
 laws. But no law shall authorize 
 the construction or operation 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 con- 
 sent also of the local authorities 
 having the control of, that por- 
 tion of a street or highway upon 
 which it is proposed to construct 
 or operate such railroad be first 
 obtained, or in case the consent 
 of such property-owners cannot 
 be obtained, the appellate divi- 
 sion of the supreme court, in the 
 department in which it is proposed 
 to be constructed, may, upon ap- 
 plication, appoint three commis- 
 sioners who shall determine, after 
 a hearing of all parties interested, 
 whether such railroad ought to 
 be constructed or operated, and 
 their determination, confirmed by 
 the court, may be taken in lieu 
 of the consent of the property- 
 owners." 
 
 The statute (§§ 91 and 92 of the 
 Railroad Law, chap. 565 of i8go; 
 3 Hydecker's Gen. Laws [2d ed.], 
 3307, 3308) reads as follows: 
 
 " § 91. Consent of property- 
 
 owners and local authorities A 
 
 street surface railroad, or exten- 
 sions or branches thereof, shall not 
 be built, extended or operated un- 
 less the consent in writing ac- 
 knowledged or proved as are deeds 
 entitled to be recorded, of the 
 owners, in cities and villages, of 
 one-half in value, and in towns, 
 not within the corporate limits of 
 a city or village, of the owners of 
 two-thirds in value, of the prop- 
 erty bounded on and also the 
 consent of the local authorities 
 having control of that portion of 
 
 a street or highway upon which 
 it is propbsed to build or operate 
 such railroad, extension or branch, 
 shall have been first obtained. 
 The consents of property-owners 
 in one city, village or town, or in 
 any other civil division of the 
 state, shall not be of any eflfect in 
 any other city, village, or town, 
 or other civil divisions of the state. 
 Consents of property-owners here- 
 tofore obtained to the building, 
 extending, operating or change of 
 motive power shall be effectual for 
 the purposes therein mentioned 
 and may be deemed to be sufifi- 
 ciently proved and shall be en- 
 titled to be recorded, whenever 
 such consents shall have been 
 signed, executed or acknowledged 
 before an ofificer authorized by law 
 to take acknowledgments of deeds, 
 or before or in the presence of a 
 subscribing witness, and without 
 regard to whether or. not the sub- 
 scribing witness shall have affixed 
 his signature in the presence of 
 the subscriber, provided that the 
 proof of such signing, execution 
 or acknowledgment shall have 
 been made by such subscribing 
 witness in the manner prescribed 
 by chapter three, part two of the 
 revised statutes. In cities the com- 
 mon council, acting subject to the 
 power now possessed by the 
 mayor to veto ordinances; in vil- 
 lages the board of trustees, and in 
 towns the commissioner or com- 
 missioners of highways shall be 
 the local authorities referred to; 
 if in any city or county the ex- 
 clusive control of any street, ave- 
 nue or other property, which is 
 to be used or occupied by any 
 such railroad, extension or branch, 
 is vested in any other authority, 
 
CONSENT OF LOCAL AUTHORITIES. 
 
 7Z 
 
 the consent of such authority shall 
 also be first obtained. The value 
 of the property above specified 
 shall be ascertained and deter- 
 mined by the assessment-roll of 
 the city, village or town in which 
 it is situated, completed last be- 
 fore the local authorities shall 
 have given their consent, except 
 property owned by such city, vil- 
 lage or town, or by the state of 
 New York, or the United States 
 of America, the value of which 
 shall be ascertained and deter- 
 mined by making the value thereof 
 to be the same as is shown by 
 such assessment-roll to be the 
 value of the equivalent in size and 
 frontage of the adjacent property 
 on the same street or highway; 
 and the consent of the local au- 
 thorities shall operate as the con- 
 sent of such city, village or town 
 as the owners of such property. 
 Whenever heretofore or hereafter 
 a railroad has been or shall be con- 
 structed and put in operation for 
 one year or the motive power 
 thereon has been or shall be 
 changed and put in operation for 
 a similar length of time, such 
 facts shall be presumptive evi- 
 dence that the requisite consents 
 of local authorities, property-own- 
 ers and other authority to the 
 construction, maintenance and 
 operation of such railroad or 
 change of motive power have been 
 duly obtained. No consent of local 
 authorities heretofore given shall 
 be deemed invalid because of any 
 portion of the road or route con- 
 sented to not being connected 
 with an existing road or route of 
 the corporation obtaining or ac- 
 quiring such consent and all state- 
 ments of extension filed under 
 
 section ninety of this article in ref- 
 erence to the route or part thereof 
 described in any consent of local 
 authorities are hereby ratified and 
 confirmed, whether the same were 
 filed before or after the obtaining 
 or acquiring of such consents, pro- 
 vided however that nothing herein 
 contained shall be construed to 
 affect any portion of a street sur- 
 face railroad which is now in or 
 upon any portion of a street which 
 is under the jurisdiction of a park 
 department in any city containing 
 a population of over twelve hun- 
 dred thousand inhabitants." (As 
 amended by chap. 676 of 1892, 
 chap. 434 of 1893, § I, chap. 723 
 of 1894, chap. 545 of 189s, chap. 
 8ss of 1896, and chap. 638 of 1901.) 
 " § 9,2. Consent of local authori- 
 ties; how procured — The appli- 
 cation for the consent of the local 
 authorities shall be in writing and 
 before acting thereon such au- 
 thorities shall give public notice 
 thereof and of the time and place 
 when it will first be considered, 
 which notice shall be published 
 daily in any city for at least four- 
 teen days in two of its daily news- 
 papers, if there be two, if not, in 
 one, to be designated by the 
 mayor, and in any village or town 
 for at least fourteen days in a 
 newspaper published therein, if 
 any there shall be, and if none, 
 then daily, in two daily newspapers 
 if there be two, if not, one pub- 
 lished in the city nearest such vil- 
 lage or town. Such consent must 
 be upon the expressed condition 
 that the provisions of this article 
 pertinent thereto sh-all be complied 
 with, and shall be filed in the 
 office of the clerk of the county 
 in which such railroad is located. 
 
74 
 
 STREET SURFACE RAILROADS. 
 
 Whenever the consent of a com- 
 mon council of a city is applied 
 for, the first consideration, of 
 which notice is hereby required, 
 may be by committee of such 
 common council. Any such 
 notice, publication or consider- 
 ation heretofore or hereafter 
 given, made or had in substantial 
 conformity with the requirements 
 of this section, is and shall be suffi- 
 cient notice, publication and con- 
 sideration for all the purposes 
 hereof notwithstanding any con- 
 flicting provision of any local or 
 special act or charter." (As 
 amended by chap. 676 of 1892, 
 and chap. 434 of 1893, § i.) 
 
 As to publication of notice be- 
 fore granting consent by the local 
 authorities, see Re Buffalo Trac- 
 tion Co., 25 At)p. Div. (N. Y.) 
 447, 49 N. Y. Supp. 1052; afFd., 
 ISS N. Y., Appendix, 76. 
 
 The provision for public notice 
 does not require that the full board 
 of aldermen should sit for the pur- 
 pose of hearing; and proceedings 
 to sell the franchise are not viti- 
 ated by the fact that the com- 
 mittee of the board only was pres- 
 ent at the time and place specified 
 by the notice. Abraham v. Myers, 
 23 N. Y. Supp. 225, 29 Abb. N. C. 
 (N. Y.) 384. But failure to prop- 
 erly advertise the time and place 
 when the application will be pre- 
 sented is fatal to the right of the 
 board to entertain the application. 
 People, St. Nicholas Ave., etc., R. 
 Co. v. Grant, 50 St. Rep. (N. Y.) 
 46s, 21 N. Y. Supp. 232. 
 
 For a case where the " adja- 
 cent " meant neighboring streets, 
 see Brooklyn Heights R. Co. v. 
 Brooklyn, 46 St. Rep. (N. Y.) 299, 
 18 N. Y. Supp. 876. A street rail- 
 
 road cannot dispense with the con- 
 sent of the city authority to the 
 use of cable power. Matter of 
 Third Ave. R. Co., 56 Hun (N. 
 Y.), 537, 31 St. Rep. (N. Y.) 64s, 
 9 N. Y. Supp. 833. 
 
 The board of aldermen of New 
 York city need not publish its 
 resolution consenting to the build- 
 ing of a street railroad. Abraham 
 v. Myers, 23 N. Y. Supp. 225, 29 
 Abb. N. C. (N. Y.) 384. The 
 highway commissioners of the 
 towns, and not the trustees of the 
 villages, are the local authorities 
 whose consent is essential to the 
 construction of a street railroad 
 across a bridge located in and 
 constructed by two towns. Town 
 of Wheatfields v. Tonawanda St. 
 R. Co., 92 Hun (N. Y.), 460, 36 
 N. Y. Supp. 744, 71 St. Rep, (N. 
 Y.) 674; Town of Lysander v. 
 Syracuse, etc., R. Co., 31 Misc. 
 Rep. (N. Y.) 330, 6s N. Y. Supp. 
 (99 St. Rep.) 415; State, Lewis v. 
 Cumberland Chosen Freeholders 
 (N. J. Sup.), 28 Atl. SS3- 
 
 Watervliet Turnpike & Railroad 
 Company need not obtain the ap- 
 proval of the railroad commis- 
 sioners and the consent of the 
 owners of one-half in value of the 
 property abutting upon the street 
 for the use of the highway for 
 street railroad purposes. Hudson 
 River Tel. Co. v. Watervliet T. 
 & R. Co., 13s N. Y. 393, 32 N. E. 
 148, 48 St. Rep. (N. Y.) 417. Con- 
 sent of local authorities and prop- 
 erty-owners must be obtained be- 
 fore a street railroad company can 
 apply to the courts to condemn 
 the right to use the tracks of 
 another company. Colonial City 
 Traction Co. v. Kingston City R. 
 Co., 153 N. Y. 540, 47 N. E. 8ia 
 
CONSENT OF LOCAL AUTHORITIES. 
 
 75 
 
 Consenting to the construction of 
 a street railroad on condition that 
 other railroads operating a road 
 of two miles outside the district 
 and connecting with the proposed 
 road may use the track of the lat- 
 ter, and subsequently authorizing 
 the building of another road of a 
 greater length so as to connect 
 with such road, municipal authori- 
 ties must be regarded as consent- 
 ing that the latter road shall 
 operate its line over the tracks of 
 the former. Staten Island M. R. 
 Co. V. Staten Island El. R. Co., 
 34 App. Div. (N. Y.) i8i, 54 N. 
 Y. Supp. (88 St. Rep.) 598. 
 
 Before 1854, the common coun- 
 cil of New York city could not 
 authorize or license the construc- 
 tion of street railroads; hence, its 
 resolution of July 30, 1851, author- 
 izing promoters of the Eighth 
 Avenue railroad to construct its 
 road, and a contract given in pur- 
 suance thereof were void. The 
 company holds its franchise under 
 the act of 1854. Potter v. Collis, 
 156 N. Y. 16, 50 N. E. 413. 
 
 A railroad corporation, unable 
 to procure the consent of abutting 
 owners, but having the confirma- 
 tion of the report of commission- 
 ers in favor of the construction of 
 the road, may avail itself of chap- 
 ter 649, New York Laws 1896, con- 
 firming consents of local authori- 
 ties where no application has been 
 made to the board of railroad com- 
 missioners for a certificate of 
 necessity. Matter of Buffalo Trac- 
 tion Co., 25 App. Div. (N. Y.) 
 447, 49 N. Y. Supp. (83 St. Rep.) 
 1052; aflfd., ISS N. Y. 700. 
 
 Where the road extends through 
 several municipalities, the consent 
 of the authorities in one, so far 
 
 as that one is concerned, is suffi- 
 cient without showing the consent 
 of the authorities in the others. 
 Geneva, etc., R. Co. v. N. Y. C, 
 etc., R. Co., 24 App. Div. (N. Y.) 
 33S> 48 N. Y. Supp. (82 St. Rep.) 
 842; afld., 163 N. Y. 228, 57 N. E. 
 498; revd. on other grounds. Mat- 
 ter of Buffalo Traction Co., supra. 
 
 Consent of Brooklyn's common 
 council was necessary to the con- 
 struction of a switch upon its 
 street. Irvine v. Atlantic Ave. R. 
 Co., 23 App. Div. (N. Y.) 112, 48 
 N. Y. Supp. (82 St. Rep.) 465. 
 
 Street railroad franchises in 
 Greater New York city are gov- 
 erned by the new charter, although 
 granted after its approval and be- 
 fore it went into effect. Gusthal 
 V. Strong, 23 App. Div. (N. Y.) 
 315, 48 N. Y. Supp. (82 St. Rep.) 
 652. Question of the consent of 
 municipal authorities to the con- 
 struction of a street railroad does 
 not necessarily arise on a motion 
 to confirm the appointment of 
 commissioners under a statute 
 making such appointment depend 
 upon the failure to secure the con- 
 sent of the property-owners. Re 
 Auburn City R. Co., 88 Hun (N. 
 Y.) 603, 69 St. Rep. (N. Y.) 105, 
 34 N. Y. Supp. 992. Consents 
 granted to one railroad company 
 are not available to another. Co- 
 lonial City T. Co. V. Kingston R. 
 Co., 153 N. Y. 540, 47 N. E. 810. 
 
 As to notice of application for 
 franchise under the Ohio statute, 
 see Aydelott v. Cincinnati (C. C), 
 I Ohio Dec. 523; Smith v. Col. L. 
 & S. Ry. Co., 8 Ohio N. P. (Com. 
 PI.) I. 
 
 In New Jersey, Avon-by-the-Sea 
 Land & Imp. Co. v. Neptune City 
 (N. J. Err. & App.), 32 Atl. 220; 
 
76 
 
 STREET SURFACE RAILROADS. 
 
 written application for the right of way must be made, the 
 presentation of an ordinance therefor ready to be passed is 
 sufficient. 5* The grant or consent itself should be by ordi- 
 nance, or resolution,^' of the board, acting as such.*" It 
 should appear upon the record of proceedings of the board, ^° 
 
 Camden Horse R. Co. v. West 
 Jersey Traction Co. (N. J. Sup.), 
 id. 72; Hutchinson v. Borough of 
 Belmar, 62 N. J. L. 450, 45 Atl. 
 1092; State, Moors v. Haddonfield 
 St. Comrs., 61 N. J. L. 470, 39 
 Atl. 681, 10 Am. & Eng. R. Cas. 
 (N. S.) 323; affd., 41 Afl. 946. 
 
 In California, an ordinance for 
 the construction of a street rail- 
 road in city streets must be pre- 
 sented to the mayor of the city 
 for his approval. Eisenhuth v. 
 Ackerson, 105 Cal. 87, 38 Pac. 530. 
 
 An ordinance allowing a street 
 railroad company to locate its 
 line on certain streets without 
 there having been the petition or 
 publication of the notice thereof 
 required by statute is a nullity. 
 Harvey v. Aurora & G. R. Co., 
 186 111. 283, S7 N. E. 857. 
 
 Under a constitutional provision 
 directing that the general assembly 
 shall not authorize the construc- 
 tion of any street railroad in a 
 municipality without the consent 
 of the corporate authorities, the 
 assembly had authority to grant 
 corporate powers to a street car 
 company, though the consent of 
 the corporate authorities in the 
 particular city in which it was to 
 be located had not been first ob- 
 tained; such grant however does 
 not authorize the construction of 
 a line of street railroad therein 
 until the consent of the corporate 
 
 authorities is obtained. Brown v. 
 Atlanta R. & P. Ca (Ga.), 39 S. 
 E. 71. 
 
 58. Sandfleet v. Toledo, 10 Ohio 
 C. C. 4B0. But if the statute gives 
 " no power to grant " the right 
 except on a specified petition, such 
 a petition must be presented. 
 North Chicago St. R. Co. v. Cheet- 
 ham, s8 111. App. 318. 
 
 59- The consent by the board of 
 public works of a city that a street 
 railway may lay and construct its 
 tracks therein is a street regulation 
 which must be by ordinance, where 
 the charter empowers the common 
 council to establish " ordinances, 
 rules, regulations and by-laws " 
 to regulate highways. West Jer- 
 sey Traction Co. v. Shivers, 58 N. 
 J. L. (29 Vroom) 124, 33 Atl. 
 55- 
 
 60. Thomas v. Inter-Co. St. Ry. 
 Co., 5 Am. Electl. Cas. 175, 167 
 Pa. St. 120. A consent to the con- 
 struction of a street railway upon 
 which no action has been taken 
 at either a regular or a special 
 meeting of the supervisors, nor 
 any entry thereof made on the 
 books of the township, nor any 
 record of the proceedings had, is 
 not binding upon the township, 
 though signed by the town super- 
 visor and bearing his ofificial title. 
 Tamaqua, etc., Co. v. Inter-Co. 
 St. Ry. Co., 167 Pa. St. 91, 36 
 W. N. C. 166, 31 Atl. 473. 
 
CONSENT OF LOCAL AUTHORITIES. 
 
 77 
 
 and be filed in the county clerk's office.^' The ordinance or 
 consent itself, or the application therefor, must show what 
 particular tracks are to be laid;^^ the consent may be given 
 for a temporary use.^^ xhe ordinance ne"ed not contain the 
 statutory conditions.^"* Municipal consent, once obtained to 
 operate the read in a given street, cannot again be required.*^ 
 A turnpike company is not a " local authority " whose con- 
 sent needs to be obtained; but the highway commissioners 
 must consent to the use of the turnpike for railroad pur- 
 poses. ^^ Having obtained the necessary consents and the 
 approval of the railroad commissioners to construct its road 
 a street railroad company acquires a franchise which is prop- 
 erty, and of which it cannot be deprived by subsequent legis- 
 lation without compensation.^^ Where the boundaries of a 
 
 61. See N. Y. statute, supra, 
 and Del., etc., Co. v. Syracuse, 
 etc., Co., 28 Misc. Rep. (N. Y.) 
 
 4S6- 
 
 62. State, Kennelly v. Jersey 
 City (N. J. Sup.), 26 L.'R. A. 281, 
 30 Atl. 531. Where the applica- 
 tion must set out the termini and 
 general route of the proposed 
 road, an ordinance cannot grant 
 a right of way in general terms 
 over all the streets mentioned and 
 
 -described in the charter of the com- 
 pany, and all other streets within 
 the city limits thereafter to be 
 made, established, and opened. 
 Knoxville v. Africa (C. C. App. 
 6th C), 77 Fed. 501, 47 U. S. 
 App. 74, 246, 23 C. C. A. 252; 
 West Jersey Trac. Co. v. Camden 
 H. R. Co., S3 N. J. Eq. (8 Dick.) 
 163, 35 Atl. 49. 
 
 (^■i. Daniels v. Commonwealth 
 Ave. St. R. Co., I7S Mass. 518, 
 j6 N. E. 715- 
 
 64. General El. R. Co. v. Chi- 
 cago City R. Co., 66 111. App. 362, 
 28 Chic. L. N. 406, 12 Nat. Corp. 
 Rep. 7S0. 
 
 63. Brooklyn Heights R. Co. v. 
 Brooklyn, 46 St. Rep. (N. Y.) 299, 
 18 N. Y. Supp. 876. 
 
 66. Matter of Rochester El. R. 
 Co., 123 N. Y. 3SI, 25 N. E. 381, 
 33 St. Rep. (N. Y.) 695; Harris- 
 burgh, etc., Ry. Co. v. Turnpike 
 Co., S Am. Electl. Cas. i, 15 Pa. 
 Co. Ct. 389. 
 
 67. Coney Isl. F. H. & B. R. Co. 
 V. Kennedy, 15 App. Div. (N. Y.) 
 588, 44 N. Y. Supp. (78 St. Rep.) 
 825; Detroit Citizens' St. Ry. Co. 
 V. Detroit Ry., 171 U. S. 48, 43 
 L. Ed. 67. A street railroad com- 
 pany having constructed and le- 
 gally operating a line of railroad 
 in a city street has sufficient prop- 
 erty interest to maintain an appli- 
 cation to restrain a similar com- 
 pany from interfering with its line 
 
78 STREET SURFACE RAILROADS. 
 
 city are enlarged, that portion of it subsequently included is 
 subject to the provision of a railroad company's charter 
 previously granted requiring the consent of the common 
 council for the location of the railroad track, etc.** 
 
 § 6. Consents of abutting property-owners. — These may be 
 made in the form of a petition to the local authorities; but 
 they must, in every particular, be as the statute prescribes. 
 No requirement can be regarded as immaterial.*' If these 
 consents relate to a single track the road cannot be con- 
 structed as, or converted into, one of a double track without 
 further consents.'" If they authorize a double track, the 
 local authorities cannot afterward limit the railroad com- 
 pany to a single track.'' These consents may provide that 
 the road be constructed within a specified time, otherwise 
 the consents to be ineffectual.'^ But if the time within which 
 a street railway track must be completed in order to pre- 
 serve the franchise to occupy the street be fixed by general 
 statute it cannot be changed by these consents.'* The con- 
 sent of any owner may be made by a duly authorized agent, '^ 
 but not by a husband, as such, for his wife,'"" a father for his 
 
 of tracks already laid, and from III. 638; N. Y. Cable Co. v. Mayor, 
 
 constructing a line of road over 104 N. Y. i. 
 
 it? private property without au- 70. Roberts v. Easton, 19 Ohio 
 
 thority of law. Atlanta Ry. & P. St. 78. 
 
 Co. V. Atlanta Rapid Transit Co. 71. Burlington v. Burlington St. 
 
 (Ga.), 39 S. E. 12. Ry. Co., 49 Iowa, 144. But see 
 
 68. 111. Central R. Co. v. Chi- Lake Roland Elev. R. Co. v. Balti- 
 cago, 176 U. S. 646, 44 L. Ed. 622. more (Md.), 20 L. R. A. 126, 54 
 
 69. Merritt v. Village of Port Am. & Eng. R. Cas. 11, 7 Am. R. 
 Chester, 71 N. Y. 309; People, St. & Corp. Rep. 619, 26 Atl. 510. 
 Nicholas Ave., etc., R. Co. v. 72. Simmons v. Toledo (Ohio C. 
 Grant, 21 N. Y. Supp. 232, 50 St. C), i Toledo Leg. N. 249; Tib- 
 Rep. (N. Y.) 46s; Roberts v. Eas- bets v. West & S. T. St. R. Co., 
 ton, 19 Ohio St. 78; Attorney-Gen- 153 III. 147, 38 N. E. 664. 
 
 eral v. Chicago, etc., Ry. Co., 121 73. People, Warfield v. Sutter 
 
ABUTTERS CONSENTS. 79 
 
 daughter, guardians for their wards, an executor with power 
 of sale for his estate, or the president of a private corporation 
 without authority from his board of directors. '''• The 
 remaindermen in possession, caring and acting for the Hfe 
 tenant, may sign as owner ;'^ but a cotenant cannot consent 
 for his proportionate number of front feet unless his coten- 
 ants also sign.'' An owner may ratify a consent signed by 
 a stranger;'* and a consent informally withdrawn before 
 being acted upon may be reinstated without the formality 
 required for the original consent.'^ Where so many signa- 
 tures to a petition consenting to a street railway franchise 
 in a street are forgeries that the petition does not carry the 
 consent of a majority of frontage of abutting owners, it is 
 not sufficient to give a reasonable color of right to the city 
 council to grant such a franchise.^' These consents may be 
 given to individuals, their legal representatives and assigns, 
 and may be turned over by them to a corporation authorized 
 by law to construct and operate a street railroad.'* In New 
 
 St. R. Co., 117 Cal. 604, 49 Pac. Ohio L. J. 338. But see Sim- 
 
 726. mons V. Toledo, supra. 
 
 74. Rapp V. City, etc., R. Co., 76. Sommers v. Cincihnati, 8 
 12 W. L. B. 119; Bullock V. West Am. L. Rec. 612. 
 
 Chicago Rapid Transit Co. (Cook 77- Beeson v. Chicago (C. C. N. 
 
 Co. C. C), 23 Chic. Leg. N. 149. D- H'-), 75 Fed. 880, 12 Nat. Corp. 
 
 Where there are several executors Rep. 408, 28 Chic. Leg. N. 367. 
 
 of a deceased abutting owner, 78. G. & W. Ry. Co. v. N. Y. 
 
 even if by the terms of the will C. & H. R. R. Co., 163 N. Y. 228, 
 
 they had power to consent, the 57 N. E. 498. In the case cited, 
 
 signature of one alone would the court said: "Another instru- 
 
 seem to be invalid. Merriman v. ment signed by thirty abutters prior 
 
 Utica Belt Line St. R. Co., 18 to the incorporation of the peti- 
 
 Misc. Rep. (N. Y.) 269, 41 N. Y. tioner was also produced. In this 
 
 Supp. 1049; St. Michael's P. E. Ch. paper the property-owners con- 
 
 V. Forty-second St., etc., R. Co., sented that two individuals named 
 
 26 Misc. Rep. (N. Y.) 601. therein, their legal representatives 
 
 75. Ronnebaum v. Mt. Auburn and assigns, might construct a 
 Cable R. Co. (Cin. Super. Ct.), 29 street railroad in the highway. 
 
8o 
 
 STREET SURFACE RAILROADS. 
 
 York consent must be obtained even for crossing the high- 
 way/' or for using the tracks of another company.^" Where 
 
 plated by the statute, the discus- 
 sion of such a question might be 
 timely. * * * It is common 
 practice and perhaps common 
 prudence for the projectors of a 
 railroad to employ parties in ad- 
 vance to procure rights of way, 
 consents or like privileges to be 
 used after the incorporation. The 
 fact that the railroad acquires such 
 rights through an intermediary by 
 assignment, instead of directly from 
 the property-owners themselves, 
 does not afTect their validity." 
 
 79. Re Syracuse & South Bay 
 R. Co., 33 Misc. Rep. (N. Y.) 510. 
 How property is to be estimated 
 in determining whether or not the 
 applicant has the requisite num- 
 ber of consents, see Sea Beach R. 
 Co. V. C. I. & G. El. R. Co., 22 
 App. Div. (N. Y.) 477, 47 N. Y. 
 Supp. (81 St. Rep.) 981; Tiede- 
 mann v. S. I. M. R. Co., 18 App. 
 Div. (N. Y.) 368, 46 N. Y. Supp. 
 (80 St. Rep.) 64; Case v. County of 
 Cayuga, 88 Hun (N. Y.) 59, 34 N. 
 Y. Supp. 595, 68 St. Rep. (N. Y.) 
 632; Curvin v. Rochester R. Co., 78 
 Hun (N. Y.), 555, 61 St. Rep. 420, 
 29 N. Y. Supp. 521; McDermott 
 v. Nassau El. R. Co., 85 Hun (N. 
 Y.), 422, 32 N. Y. Supp. 884, 66 St. 
 Rep. (N. Y.) 202. See also Smith 
 v. East End St. R. Co., 87 Tenn. 
 626, II S. W. 709. In Ohio the 
 statutory consents of abutting 
 owners may be obtained after pub- 
 lication of the notice for bids, and 
 need not be to the mode and man- 
 ner of construction and operation 
 of the railroad. Sloane v. P. L. 
 R. Co., 7 Ohio C. C. 84. 
 
 80. Colonial City Traction Co. v. 
 
 After the petitioner became in- 
 corporated the two individuals 
 named in the consents assigned 
 them through other parties to the 
 railroad. These consents are in 
 form and substance sufficient un- 
 less they are inoperative by reason 
 of the fact that they were procured 
 by and given to the two individu- 
 als who were promoters of and 
 interested in the construction of 
 the road instead of the railroad 
 itself. It is admitted that these 
 two instruments contain the con- 
 tents of the owners of the re- 
 quisite amount of property on the 
 line of the road in the town, and 
 the only question to be considered 
 is, whether the consents in the 
 paper last described were invalid 
 for the reason that they did not 
 run directly to the railroad, but to 
 individuals through whom they 
 were transferred directly to the 
 railroad. * * * The reason for 
 condemning these consents was 
 that it .would be contrary to public 
 policy and to the spirit of the law 
 to allow individuals to procure the 
 consents to themselves and then, 
 as they might, sell them to the 
 highest bidder. We think that this 
 is a remote danger at best, but in 
 any event it should not be invoked 
 to destroy consents given and 
 acted upon without some proof 
 that the parties who procured them 
 contemplated their use for purely 
 commercial purposes. When it 
 appears that consents were neither 
 given nor received in good faith 
 for the purpose of facilitating the 
 construction of a railroad, but for 
 some other purpose, not contem- 
 
abutters' consents. 8 1 
 
 the charter or articles of incorporation specify that the road 
 is to be located in several streets of the city, the consents as 
 to each street are separate, and upon failure to obtain the 
 requisite consents upon any one street the applicant need not 
 make owners along the other streets, where the consents are 
 sufficient, parties to a proceeding for the appointment of 
 commissioners to determine whether the road should be con- 
 structed in the street where the consents are wanting.*' 
 While the franchise to use pubHc streets for railroad pur- 
 poses can vest in the corporation only after substantial com- 
 pliance with all the provisions of the statute, yet a mere 
 inadvertence in the use of words will not invalidate the grant 
 when it is apparent upon reading all the proceedings and all 
 the conditions of the consent, that every benefit to the public 
 which the statute contemplates has been secured or provided 
 for.*^ When the jurisdiction is acquired by the filing of the 
 written consents required by statute, it is not exhausted by 
 lapse of time or by inefTectual exercise of it.®^ Nor are the 
 
 Kingston City R. Co., 154 N. Y. 163 N. Y. 228, 234, S7 N. E. 498; 
 493, 48 N. E. 900, 9 Am. & Eng. Hutchinson v. Borough of Belmar, 
 R. Cas. (N. S.) S06, IS3 N. Y. 540, 62 N. J. L. 450, 45 Atl. 1092. A 
 4 Det. Leg. N., No. 31, 47 N. E. new grant of a portion of a street 
 810. But see IngersoU v. Nassau railroad failing for want of proper 
 El. R. Co., 89 Hun (N. Y.), 213, 69 consent of abutting owners may 
 St. Rep. (N. Y.) 16, 34 N. Y. Supp. be made when the necessary con- 
 1044, 28 Chic. Leg. N. 34; afifd., 157 sents are obtained. Such new 
 N. Y. 453, 43 L. R. A. 236, 52 grant is not the inauguration of a 
 N. E. S4S, where the use of the new street railway enterprise re- 
 track was by contract under the quiring bids upon rates of fare 
 statute of 1839, with a company and like matters. Sanfleet v. To- 
 whose franchise was granted be- ledo, 10 Ohio C. C. 460. 
 fore the constitutional require- 82. Beekman v. Third Ave. R. 
 ment as to the consent of abutting Co., IS3 N. Y. 144, 162, 47 N. E. 
 owners. "^"77- 
 
 81. Re People's R. Co., 112 N. Y. 83. Currie v. Atlantic City (N. 
 
 578, 20 N. E. 367. And see G. & J. Sup. 1901), 48 Atl. 615, rehear- 
 
 W. Ry. Co. V. N. Y. C, etc., Co., ing denied, 48 Atl. 1116. In the 
 
 6 
 
82 
 
 STREET SURFACE RAILROADS. 
 
 consents a mere license, revocable at law or by the transfer 
 of the property before the construction of the railroad; nor 
 are they subject to the Recording Act. They vest a certain 
 property right in the railroad company to which it is given, 
 which cannot be afterward divided or diminished without the 
 consent of such company.®* 
 
 § 7, Bids for franchise. — In several States the consent of 
 the local authorities in certain municipalities for a street rail- 
 road within the streets can be given only on condition that 
 the franchise be sold at auction to the bidder who will agree 
 to give the city the largest percentage per annum on the 
 gross receipts of the corporation operating the road, or who 
 will agree to carry passengers at the lowest rate, and that 
 the contract be awarded to the lowest bidder.®^ This con- 
 
 case cited, it was held that under 
 a law providing for the written 
 consent of property-owners front- 
 ing on the street, before the 
 municipality shall grant permission 
 for the operation of a street rail- 
 road upon such street, a consent 
 based on the ownership of prop- 
 erty fronting on a street over 
 which permission is desired, is 
 limited to such street and has no 
 application to any street on which 
 the property does not front. These 
 consents are not licenses or con- 
 cessions granting to the railroad 
 company some interest in land or 
 right in the streets, but are, in 
 effect, votes for the adoption of 
 a legislative scheme by which 
 special jurisdiction over highways 
 is conferred on the municipality, 
 hence there cannot be an efiective 
 withdrawal of any consent after 
 the jurisdiction has vested in the 
 
 municipality. The jurisdiction that 
 has vested by the written consent 
 of the owners of property on a 
 street will not be ousted by the 
 subsequent conveyance by an 
 owner, of the property by virtue 
 of ownership of which he had con- 
 sented to such jurisdiction. A 
 board of education, having no title 
 to lands on which the school build- 
 ings stand, cannot give a valid 
 consent to the construction of a 
 street railroad adjacent to the 
 property. 
 
 84. Adee v. Nassau El. R. Co., 
 65 App. Div. (N. Y.) 529. 
 
 85. Ohio Rev. Stats., § 2502. 
 And see State, Crow v. West Side 
 St. R. Co., 146 Mo. iss, 47 S. W. 
 959; People, San Francisco & S. 
 J. R. Co. V. Craycroft, iii Cal. 
 544, 44 Pac. 463. The New York 
 Railroad Law (chap. 565 of i8go, 
 art. IV; 3 Heydecker's Gen. Laws 
 
BIDS FOR FRANCHISE. 
 
 83 
 
 [2d ed.], 3309-3312) in this regard 
 reads as follows: 
 
 " § 93. Condition upon which 
 consent shall be given; sale of 
 
 franchise at public auction 
 
 The consent of the local authori- 
 ties in cities containing twelve 
 hundred and fifty thousalid inhab- 
 itants or more, according to the 
 last federal census or state enumer- 
 ation, must contain the condition 
 that the right, franchise and privi- 
 lege of using any street, road, 
 highway, avenue, park or public 
 place shall be sold at public auc- 
 tion to the bidder who will agree 
 to give the city the largest per- 
 centage per annum of the gross 
 receipts of such corporation, with 
 a bond or undertaking in such 
 form and amount and with such 
 conditions and sureties as may be 
 required and approved by the 
 comptroller or other chief fiscal 
 officer of the city, for the fulfill- 
 ment of such agreement and for 
 the commencement and completion 
 of its railroad within the time 
 designated by law and for the 
 performance of such additional 
 conditions as the local authorities 
 in their discretion may prescribe. 
 Whenever such consent shall 
 provide for the sale at public 
 auction of the right to con- 
 struct and operate a branch or 
 extension of an existing railroad, 
 such consent shall provide that but 
 one fare shall be exacted for pas- 
 sage over such branch or exten- 
 sion and over the line of road 
 which shall have applied therefor; 
 and further, that if such right 
 shall be purchased by any corpo- 
 ration other than the applicant, 
 that the gross receipts from joint 
 business shall be divided in the 
 
 proportion that the length of such 
 extension or branch so sold shall 
 bear to the entire length of the 
 road whether owned or leased 
 which shall have applied there- 
 for and of such branch or ex- 
 tension, and that if such right 
 shall be purchased by the appli- 
 cant, the percentage to be paid 
 shall be calculated on such por- 
 tion of its gross receipts as shall 
 bear the same proportion to the 
 whole value thereof as the length 
 of such extension or branch shall 
 bear to the entire length of its 
 road whether owned or leased. 
 The bidder to whom such right, 
 franchise' and privilege may be 
 sold must be a duly incorpo- 
 rated railroad corporation of this 
 state, organized to construct, main- 
 tain and operate a street railroad 
 in the city for which such consent 
 may be given; but no such cor- 
 poration shall be entitled to bid 
 at such sale unless at least five 
 days prior to the day fixed for 
 such sale, or five days prior to the 
 day to which such sale shall 
 have been duly adjourned, the 
 corporation shall have filed with 
 the comptroller or other chief 
 fiscal officer of the city, a bond 
 in writing and under seal, with 
 sufficient sureties, to be ap- 
 proved by such comptroller or 
 officer, conditioned that if such 
 right, franchise and privilege shall 
 be sold to such corporation, to 
 pay to the city where such rail- 
 road is situated the sum of fifty 
 thousand dollars as liquidated 
 damages and not by way of pen- 
 alty in the event of the failure of 
 such bidder to fulfill the terms of 
 sale, comply with the provisions 
 of this article pertinent thereto, 
 
84 
 
 STREET SURFACE RAILROADS. 
 
 and complete and operate its rail- 
 road according to the plan or 
 plans and upon the route or routes 
 fixed for its construction within 
 the time hereinafter designated 
 for the construction and comple- 
 tion of its railroad, and also con- 
 ditioned to pay to the corporation 
 first applying for the consent, if it 
 shall not be the successful bidder, 
 the necessary expenses incurred by 
 such corporation prior to the sale 
 pursuant to the requirements and 
 direction of the local authorities, 
 within twenty days after such sale 
 and upon the certificate of the 
 comptroller or other officer con- 
 ducting the same as to the sum 
 or amount to be paid. Notice of 
 the time and place and terms of 
 sale, and of the route or routes 
 to be sold, and of the conditions 
 upon which the consent of the 
 local authorities to the construc- 
 tion, operation and extension of 
 such street railroad will be given, 
 must be published by such authori- 
 ties for at least three successive 
 weeks, and in any city having 
 two or more daily newspapers, at 
 least three times a week in two 
 of such papers to be designated 
 by the mayor, and in any city 
 where two daily newspapers are 
 not published, at least once a 
 week in a newspaper published 
 therein to be designated by the 
 mayor. The comptroller or other 
 chief fiscal officer of the city shall 
 attend and conduct such sale and 
 may adjourn the same, but not 
 more than four weeks in all, un- 
 less further adjournments should, 
 in his discretion, be necessary by 
 reason of the pendency of legal 
 proceedings, and shall cancel any 
 bid if in excess of the gross re- 
 
 ceipts, leaving in force the high- 
 est bid not in excess if the 
 bidder shall not have furnished 
 adequate security entitling such 
 bidder to bid, or shall otherwise 
 fail to comply with the terms and 
 conditions of sale, and shall resell 
 the consent and license in the 
 same manner as hereinbefore pro- 
 vided for the first sale. The bid- 
 der who may build and operate 
 such railroad shall at all times 
 keep accurate books of account of 
 the business and earnings of such 
 railroad, which books shall at all 
 times be subject to the inspection 
 of the local authorities. In the 
 event of the failure or refusal of 
 the corporation operating or using 
 such railroad to pay the rental or 
 percentages of gross earnings 
 agreed upon, and after notice of 
 not less than sixty days to pay the 
 same, the local authorities inter- 
 ested therein may apply to any 
 court having jurisdiction upon at 
 least twenty days' notice to such 
 corporation, and after it shall have 
 had an opportunity to be heard in 
 its defense, for judgment declar- 
 ing the consent and right to oper- 
 ate and use such railroad forfeited 
 and authorizing the sale again of 
 the same in the manner hereinbe- 
 fore prescribed, provided, however, 
 that no such resale of any such 
 consent and right heretofore 
 granted shall be authorized ex- 
 cept upon the condition that the 
 same shall be subject to all liens 
 and incumbrances existing on 
 said railroads at the time such for- 
 feiture may have been declared. 
 All consents hereafter given by the 
 local authorities, unless it be 
 otherwise provided in such con- 
 sent or in some renewal thereof 
 
BIDS FOR FRANCHISE. 
 
 85 
 
 may be forfeited at the expiration 
 of two years thereafter, and every 
 consent by the local authorities of 
 any city of the first class or of any 
 city, town or village now embraced 
 within the corporate limits of any 
 city of the first class heretofore 
 given to or acquired or owned by 
 any street surface railroad corpo- 
 ration, since January first, eighteen 
 hundred and ninety, is hereby rati- 
 fied and confirmed, and shall be 
 deemed to be in full force and ef- 
 fect, and shall continue until and 
 including December thirty-first, 
 nineteen hundred and three when 
 it may be forfeited unless prior 
 thereto the required consent of 
 property-owners, or determina- 
 tions by the appellate division of 
 the supreme court, in lieu thereof, 
 shall have been first obtained. 
 The board of sifiking fund com- 
 missioners of any city shall have 
 power to reduce, compromise or 
 release any obligation or liability 
 to the mayor, aldermen and com- 
 monalty of such city under the 
 provisions of chapter six hundred 
 and forty-two of the laws of eigh- 
 teen hundred and eighty-six, or of 
 this chapter whenever, in the opin- 
 ion of such board, such release or 
 compromise shall be just or equi- 
 table, or for the public interest, 
 the reason for any such release or 
 compromise to be stated in the re- 
 corded proceedings of such board. 
 No lease by any company organ- 
 ized under section two of the rail- 
 road law and owning a right, 
 privilege or franchise of using any 
 street, avenue, highway or public 
 place for railroad purposes, which 
 has heretofore been sold under 
 the provisions of this section, 
 hereafter made to any street sur- 
 
 face railroad company which is not 
 subject to the payment of any per- 
 centage pursuant to this section, 
 and which is not organized for the 
 purpose of operating a railroad in 
 a city of the first class, shall be 
 valid until the leased company 
 shall have filed in the office of the 
 secretary of state and in the of- 
 fice of the clerk of the county 
 where its certificate of incorpo- 
 ration is filed, its acceptance in 
 writing and under its corporate 
 seal of the provisions of this sec- 
 tion as now amended; and upon 
 such acceptance being filed, the 
 total percentage amount thereafter 
 to be paid annually under this sec- 
 tion and under section ninety-five 
 of this act, shall be at the rate of 
 five per centum of the gross re- 
 ceipts derived from the operation 
 of the roads of the lessor and 
 lessee companies considered as 
 one system. The lessee company, 
 at the time of filing its acceptance 
 aforesaid, shall also file in the 
 same offices a bond to the people 
 of the state, executed in duplicate 
 by it and a surety company au- 
 thorized by law to act aj surety on 
 bonds and undertakings, in the 
 penal sum of fifty thousand dol- 
 lars, and conditioned for the 
 faithful payment annually of the 
 total percentage aforesaid, and 
 such bond shall be deemed to be 
 a full compliance with the con- 
 dition for a bond or undertaking 
 required by this section to be pro- 
 vided for in the conditions of the 
 consent of the local authorities 
 and shall supersede any such bond 
 or undertaking theretofore given. 
 Whenever it shall be desired to 
 unite two street surface railroad 
 routes at some point not over one- 
 
86 
 
 STREET SURFACE RAILROADS. 
 
 half mile from such respective 
 lines or routes, and establish by 
 the construction of such connec- 
 tion a new route for public travel, 
 and the corporation or corpora- 
 tions owning or using such rail- 
 roads shall consent to operate such 
 connection as a part of a con- 
 tinuous route for one fare, and it 
 shall appear to the local author- 
 ities that such connection cannot 
 be operated as an independent rail- 
 road without inconvenience to the 
 public, but that it is to the public 
 advantage that the same should be 
 operated as a continuous line or 
 route with existing railroads, or 
 whenever for the purpose of con- 
 necting with any ferry or railroad 
 depot, it shall be desired to con- 
 struct an extension or branch not 
 more than one-half mile in length, 
 of any street surface railroad cor- 
 poration, no sale of such franchise 
 shall be made as provided in this 
 section, but any consent of the 
 local authorities for the construc- 
 tion and operation of such con- 
 nection, extension or branch shall 
 provide that the corporation or 
 corporations- operating such con- 
 nection, extension or branch shall 
 pay into the treasury of said city 
 annually the percentage provided 
 for extensiotis or branches in sec- 
 tion ninety-five of this chapter, for 
 the purposes, ^t the times, in the 
 manner and upon the conditions 
 set forth in such section. The 
 provisions of this section as now 
 amended shall apply to all cities 
 of the first class, but nothing 
 herein contained shall be construed 
 as superseding, repealing or 
 modifying any provision of the 
 charter of any city, village or town, 
 nor as modifying or afifecting the 
 
 terms of a certain contract bearing 
 date January first, eighteen hun- 
 dred and ninety-two, entered into 
 by and between the city of Buf- 
 falo and the various street sur- 
 face railroad corporations therein 
 named in such contract, except 
 that the provisions of this act as 
 amended, which continue and con- 
 firm the consents of local author- 
 ities shall apply to street surface 
 railroads in the city of Bufifalo, as 
 well as in other cities of the first 
 class. This section shall not 
 modify or affect any contract here- 
 tofore entered into between a 
 street surface railroad corporation 
 and any city of the third class, 
 town or village, regulating the 
 payment of percentages or pav- 
 ing of streets, and any city of the 
 third class, town or village, is 
 hereby authorized to enter into 
 any such form of contract with 
 any street surface railroad corpo- 
 ration, and any such contract 
 heretofore entered into is hereby 
 ratified and confirmed. The local 
 authorities may, in their discretion, 
 make their consent to depend 
 upon any further conditions re- 
 specting other or further security, 
 or deposit, suitable to secure the 
 construction, completion and oper- 
 ation of the railroad within any 
 time not exceeding the period 
 prescribed in this article and re- 
 specting the character, quality or 
 motive power of the road to be 
 completed and respecting the 
 grouping of streets, avenues and 
 highways into one route, or into 
 several routes, for the purpose of 
 a single sale of the franchise, right 
 or privilege for all the routes col- 
 lectively, or of the separate sale 
 for each route or street, as said 
 
BIDS FOR FRANCHISE. 
 
 87 
 
 dition can in nowise be modified, and the consent must inure 
 to the best bidder.^* In New York the statute limits the 
 
 local authorities may think ex- 
 pedient and respecting the pay- 
 ment of the percentage agreed to 
 be paid at the sale upon all the 
 lines operated by the successful 
 bidder within the city and respect- 
 ing any matter involved in or af- 
 fecting the computation of percent- 
 age payments and respecting the 
 use of the railroads to be con- 
 structed under the consent by any 
 other company and respecting the 
 interchange of traffic and division 
 of fares between the company 
 operating such railroads and any 
 other company, and respecting the 
 application of any provision herein 
 contained as to carriage of pas- 
 sengers for single fare and the 
 division of gross receipts and the 
 payment of percentages to the line 
 leased or operated under contract 
 by the applicant for an extension, 
 and also respecting any other mat- 
 ter concerning which, in their 
 judgment, further conditions 
 would be for the public interest. 
 Any and all consents, sales and 
 proceedings heretofore granted, 
 made or taken in substantial com- 
 pliance with the provisions of this 
 section, as now last amended, are 
 hereby approved, ratified and con- 
 firmed, and any purchaser or suc- 
 cessor to or transferee of the rights 
 of the purchaser of any right or 
 privilege heretofore sold sub- 
 stantially in accordance with the 
 provisions of this section as now 
 amended, is authorized to acquire 
 the requisite consents of property- 
 owners, or, in lieu thereof, deter- 
 minations by the appellate division 
 
 of the supreme court, and to pro- 
 ceed with the construction of its 
 road, at any time within three 
 years thereafter." (As amended by 
 chap. 306 of 1892, chap. 676 of 
 1892, chap. 434 of 1893, and chap. 
 494 of 1901.) 
 
 Before the charter of Greater 
 New York there was no provision 
 requiring the city of Brooklyn to 
 sell a street railway franchise to 
 the highest bidder. Adamson v. 
 Nassau El. R. Co., 89 Hun (N. 
 Y.), 261, 68 St. Rep. (N. Y.) 851, 
 34 N. Y. Supp. 1073. 
 
 86. State v. Bell, 34 Ohio St. 
 194; Knorr v. Miller, S Ohio C. C. 
 609, 2S W. L. B. 128; Mathers v. 
 Cincinnati, 3 id. SSi- A franchise 
 required by statute to be disposed 
 of to the highest bidder is invalid 
 when advertised and sold to the 
 highest bidder " in square yards 
 of gravel pavement." Buckner v. 
 Hart (C. C. E. D. La.), 4 Am. 
 Electl. Cas. 21, 32 Fed. 835; afifd.. 
 Hart V. Buckner (C. C. App. 
 Sth C), 54 Fed. 925, 2 U. S. App. 
 488. The city of New Orleans 
 may grant a right of way to a rail- 
 road company whose object is to 
 carry freight on its cars beyond 
 the city limits to a station where 
 they will reach its own roadbed 
 without complying with the pro- 
 visions of a statute prohibiting the 
 common council from granting, 
 selling, or disposing of any 
 " street railroad franchise " except 
 after three months publication of 
 the terms and specifications of 
 such franchise and its adjudication 
 to the highest bidder. New Or- 
 
88 STREET SURFACE RAILROADS. 
 
 bidders at any sale of a franchise at auction to railroad cor- 
 porations authorized to construct and operate a street rail- 
 road in the city.*^ A bid cannot be rejected as not made in 
 good faith when it is made with the intention of complying 
 with the terms of the sale in case the bid is accepted.^* Nor 
 can it be rejected as not made in good faith upon anything 
 not said and done by the bidder in the presence of the board 
 awarding the contract at the time of an inquiry made by it 
 as to the question of good faith; and^ in Ohio, such inquiry 
 must be confined to the question, " Does the bidder with- 
 draw' his bid, or does he intend to comply with its terms in 
 case it is accepted? "^^ But the purpose of this and kindred 
 statutes is to secure the most efficient service on the best 
 possible terms to the public, and the officers controlling the 
 sale, acting in good faith, have a large discretion as to the 
 time and manner of receiving and rejecting bids and as to 
 the security to be furnished by bidders which the court will 
 not control.*' The insertion in the bid of the words " for 
 himself and associates," after the words " the undersigned 
 
 leans, etc., R. Co. v. Watkins, 48 the conditions imposed by the 
 
 La. Ann. 1550, 21 So. igg. municipality must not in any wise 
 
 87. Beekman v. Third Ave. R. contravene the statutory condi- 
 Cc, 153 N. Y. 144, IS3, 47 N. E. tions. People ex rel. W. S. St. 
 217- R. Co. V. Barnard, no N. Y. 548, 
 
 88. Gallagher v. Johnson (Com. 18 N. E. 354; Beekman v. Third 
 PI.), 30 Ohio L. J. 139. While Ave., etc., Co., 153 N. Y. 144, 47 
 the municipal authorities may im- N. E. 277. 
 
 pose any proper condition upon 89. Johnson v. West Side St. 
 
 which their consent will be given, Ry. Co., 10 W. L. B. 345; Knorr 
 
 the conditions so imposed must v. Miller, 5 Ohio C. C. 609, 25 W. 
 
 be specified in the notice of sale, L. B. 128; Simmons v. Toledo, 5 
 
 and no other conditions can be Ohio C. C. 124, i Toledo Leg. N. 
 
 inserted in the consent, or exacted 249; Beekman v. Third Ave., etc., 
 
 or imposed upon the successful R. Co., 153 N. Y. 144, 161, 47 N. E. 
 
 bidder than those required by the 277; Sloane v. People's El. R. Co., 
 
 act and by the notice of sale; but 7 Ohio C. C. 84. 
 
BIDS FOR FRANCHISE. 89 
 
 hereby proposes " does not make the bid that of any person 
 other than the one signing it, nor require his bond to be 
 executed by other persons, or that the condition of the bond 
 provide that other persons enter into the contract.*^ An 
 action cannot be maintained in a court of equity in which a 
 municipal corporation seeks a determination, in respect to 
 an auction sale of a street railroad franchise, whether the 
 bidding has passed beyond all reasonable and valid bids, and 
 which is the highest legal and valid bid, and to have the city 
 comptroller directed to award the franchise accordingly, or 
 to have it determined whether the bids should be canceled 
 and a new sale ordered.^" A bidder for a franchise, under the 
 New York statute, who withdraws after bidding a certain 
 percentage of gross receipts cannot restrain the sale of the 
 franchise to another bidder on the ground that its bid was 
 excessive and not made in good faith, even although its own 
 bid was to the full amount of the gross receipts and any bid 
 in excess thereof was void.^' A contract by two active com- 
 petitors for a street railway franchise, by which all competi- 
 tion is withdrawn and agreement is made to co-operate in 
 securing the franchise and divide the profits of the enter- 
 prise and thus prevent all competition and avoid the im- 
 position of onerous conditions by municipal authorities is 
 void as against public policy.^^ But the sale of the franchise 
 is not illegal, because it happens that one purchaser, with- 
 out his connivance or procurement, and without fraud, 
 collusion, or undue influence being shown, is in a position, 
 
 90. Mayor v. Fitch, 9 App. Div. (C. C. App. 4th C), 42 U. S. App. 
 <N. Y.) 452. 522, 8 Fed. 839; Baird v. Sheehan, 
 
 91. So. Boul. R. Co. V. North 38 App. Div. (N. Y.) 7; Atcheson 
 N. Y. City Trac. Co., 16 Misc. v. Mallon, 43 N. Y. 147; Goodrich 
 Rep. (N. Y.) 263. V. Houghton, 134 id. iiS, 31 N. E. 
 
 92. Hyer v. Richmond Trac. Co. S16. 
 
90 STREET SURFACE RAILROADS. 
 
 by reason of his situation, to bid a price higher than 
 another.53 
 
 § 8. Extensions. — Under the New York statute, cited in 
 notes to preceding sections in this chapter, what is called a 
 branch or extension of an existing railroad may be con- 
 structed and operated under a franchise applied for by one 
 railroad, and, when put in operation, the branch or exten- 
 sion shall, for certain purposes, be deemed to be a part of the 
 road making the application, even though the franchise to 
 construct the branch shall be acquired and the new road 
 operated by another corporation. Whoever may acquire the 
 franchise at the competitive bidding, and whoever may own 
 and operate the branch or extension, it must still bear cer- 
 tain relations to the parent road that inaugurated the pro- 
 ceedings for its construction, and at least one of these 
 relations is the right of the public to a continuous passage 
 over both the main line and the new branch on payment of a 
 single fare.'* The words " extend " and " extension " are 
 not intended to be used in the statute in their restricted 
 sense of prolongation in a given direction, but rather to 
 enable the railroad company to acquire the right of con- 
 struction, maintenance, and operation of additional roads 
 which might be operated in connection with its existing 
 lines in any direction or upon any street or avenue.'^ gut 
 
 93. Johnson v. City of New Or- should afterward be given, a corn- 
 leans (La. 1901), 29 So. 355. pany to which the right of way is 
 
 94. Beekman v. Third Ave. R. subsequently given may lawfully 
 Co., 153 N. Y. 144, 154, 47 N. E. adopt an extension of its road 
 z'jT. When a municipality has at- which will include the tracks of 
 tached to its grant to a street rail- the other company. Hannum v. 
 road company of a right of way Media, etc., Co. (Pa. C. P.), 8 
 over its streets a condition that Del. Co. Rep. 91. 
 
 the tracks might be used by any 95. Bohmer v. Hafifen, 35 App. 
 
 other railroad to which the same Div. (N. Y.) 381, 388, 54 N. Y. 
 
EXTENSIONS. 
 
 91 
 
 several branches or extensions cannot be grouped together 
 into one sale of the franchise, since the general purpose of 
 the statute would be thereby defeated, and the common 
 council enabled, in most cases, practically to select the pur- 
 chaser of the right.9^ The fact.that the applying corporation 
 consents that the right to use part of its main line to con- 
 nect the several branches or extensions may also be sold^ and 
 the terms of the sale so proposed, does not make the several 
 branches a single extension.' In the sale of the franchise 
 the common council cannot add as a condition that the pur- 
 chaser must pay a gross sum in cash into the State treasury 
 in addition to the percentage of gross receipts bid, as re- 
 quired by the statute.'* The consent of the abutting owners 
 
 Supp. (88 St. Rep.) 1030; affd., 161 
 N. Y. 390. And see West Jersey 
 Trac. Co. v. Camden H. R. Co., 
 52 N. J. Eq. (7 Dick.) 4S2, 29 Atl. 
 333, I Am. & Eng. R. Cas. (N. S.) 
 132; S3 N. J. Eq. (8 Dick.) 163, 35 
 Atl. 49. In the case last cited it was 
 held that a provision allowing a 
 railroad company to extend its 
 railroad along " any public road 
 or highway extending from " a 
 specified city, did not authorize 
 the company to build on a high- 
 way no part of which touched the 
 city, although it was crossed by 
 highways leading from the city; 
 nor could it deviate from its char- 
 ter route. And see Citizens' St. R. 
 Co. V. Africa, 100 Tenn. 26, 42 S. W. 
 48s; S. Boston R. Co. v. Middle- 
 sex R. Co., 121 Mass. 48s; Cin- 
 cinnati V. Cincinnati St. R. Co. 
 (Cin. Super. Ct.), 31 Ohio L. J. 
 308. A street railroad franchise 
 provided for the construction of 
 an extension of the R. railway to 
 connect with the D. railway (the 
 
 connection to be made within two 
 years). Held, that such connection 
 was contemplated as would allow 
 the cars of the R. railway to pass 
 over the tracks of the D. railway. 
 Township of Hamtranck v. Rapid 
 Ry. Co. (Mich.), 81 N. W. 337- 
 
 96. Beekman v. Third Ave. R. 
 Co., 153 N. Y. 144, 154, 47 N. E. 
 277. In the case cited the court 
 said: "The next question involves 
 the power of the local authorities 
 to accept the proposition of the 
 defendant to pay into the city 
 treasury, in addition to the per- 
 centage of gross receipts pre- 
 scribed by the statute, a lump sum 
 of $250,000, and to make the pay- 
 ment of that sum a condition of 
 the consent and sale in case the 
 defendant became the purchaser. 
 It is conceded that the defendant 
 was so situated with reference to 
 these proposed branches or exten- 
 sions of its system, that it could 
 afiford to pay for the right to con- 
 struct and operate them a larger 
 
92 
 
 STREET SURFACE RAILROADS. 
 
 is essential to the validity of a franchise for an extension, 
 unless the extension is really necessary to the enjoyment of 
 a valid grant made before the constitutional or statutory 
 provisions requiring such consents.^^ But the consent of the 
 
 sum of money than any other cor- 
 poration competing with it for the 
 right. But the question is how far 
 such pecuniary considerations can 
 be permitted to enter into the exe- 
 cution of a trust or agency con- 
 fided by the statute to the local au- 
 thorities for the benefit of the pub- 
 lic. The defendant's ability to pay 
 could find a fair field in bidding 
 up the percentage on gross re- 
 ceipts, but whether it could tempt 
 the local authorities by an oflfer 
 of a large sum of money to be paid 
 at once into the treasury is quite 
 another question. If the common 
 council could make the payment 
 of such a sum by the defendant a 
 condition of its consent, it could 
 make it a condition in all cases, 
 and if it could exact the payment 
 of that sum there can be no limit 
 placed upon its power in that re- 
 gard. The disposition of public 
 franchises would then depend upon 
 the ability of the purchaser to pay, 
 and the party offering the largest 
 sum of money to be paid down 
 would be enabled to shape the 
 route and secure the franchise. 
 This might bring money to the 
 treasury and advantage to the cor- 
 poration thus paying for the fran- 
 chise, but at the same time the 
 public convenience and the public 
 interests might have been over- 
 looked, and in many cases prob- 
 ably would be. It is quite clear 
 that there is no authority in the 
 statute for the sale of a franchise 
 
 for a gross sum of money." 
 (Pages IS7, 158.) 
 
 Under Conn. Pub. Acts 1893, 
 p. 308, it was held that a condition 
 of the approval by the mayor and 
 common council of a plan for an 
 extension of street railroad tracks 
 for a written acceptance of the 
 " permit " and all its provisions, 
 is unauthorized where some of the 
 provisions of the permit were 
 themselves unauthorized. Central 
 R. & E. Co.'s Appeal, 67 Conn. 
 197, 35 Atl. 32. 
 
 97. Mt. Auburn Cable Co. v. 
 Neare, 54 Ohio St. 153, 35 Ohio 
 L. J. 61, 42 N. E. 768; People v. 
 Third Ave. R. Co., 45 Barb. (N. 
 Y.) 63; Harner v. .Columbus 
 Street Car R. Co. (C. P.), 29 
 Ohio L. J. 387. 
 
 In New York a statute provides 
 for the saving of corporate rights 
 in case of failure to complete road, 
 and for extensions, as follows: 
 
 " •§ 106. Corporate rights saved 
 in case of failure to complete 
 road; right to operate branches; 
 conditions; former consents rati- 
 fied; limitations — The corporate 
 existence of and powers of every 
 street surface railroaa corporation, 
 which has completed a railroad 
 upon the greater portion of the 
 route designated in its certifi- 
 cate of incorporation, within ten 
 years from the date of filing 
 such certificate in the office of 
 the secretary of state, and which 
 has operated such completed 
 
EXTENSIONS. 
 
 93 
 
 portion of its railroad con- 
 tinuously for a period of five 
 years last past, and is now oper- 
 ating the same, shall continue 
 with like force and effect, as 
 though it had in all respects com- 
 plied with the provisions of law 
 with reference to the time when 
 it should have fully completed its 
 road. Every such corporation 
 shall have the right to operate 
 any extensions and branches of its 
 railroad, now constructed and 
 operated by it, for a period of ten 
 years last past, with like force and 
 eiifect, as though the route of such 
 extensions and branches were des- 
 ignated in its certificate of incor- 
 poration. But every such street 
 railroad corporation is authorized 
 to operate such railroad and any 
 extensions or branches thereof, 
 upon condition that it has hereto- 
 fore, or shall hereafter, obtain the 
 consent of the local authorities 
 having the control of that portion 
 of the streets, avenues or high- 
 ways included in such railroad, or 
 any extension or branches thereof, 
 to the construction and operation 
 of the same, and also upon the 
 condition that it has heretofore or 
 shall hereafter first obtain the con- 
 sent of the owners of one-half in 
 value of the property bounded on 
 the portion of the streets, avenues 
 or highways included in the route 
 of such railroad, or any extensions 
 or branches thereof, to the con- 
 struction and operation of the 
 same, or in case the consent of 
 such property-owners cannot be 
 obtained, the appellate division of 
 the supreme court of the depart- 
 ment in which such railroad or 
 any extension or branch thereof 
 is located, may, upon application, 
 
 appoint 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 
 consent of the property-owners. 
 If any street surface railroad cor- 
 poration shall have made and filed 
 a statement or statements of pro- 
 posed extensions or branches em- 
 bracing a line from the boundary 
 of a city or village to the bound- 
 ary of another city or village gen- 
 erally parallel with the route speci- 
 fied in its certificate of incorpo- 
 ration and generally distant not 
 more than one-half mile there- 
 from, and shall have made and 
 filed an agreement of consolida- 
 tion with some other street sur- 
 face i*ailroad corporation formed 
 to build a street railroad upon a 
 route continuous or connecting 
 with one or more of the routes 
 described in such statement or 
 statements of proposed extensions 
 or branches, and thereafter there 
 shall have been constructed and 
 operated for a period of four years 
 a street surface railroad from such 
 city or village to such other city 
 or village upon a line embraced 
 in any such proposed extensions 
 or branches, such consolidated 
 corporation may relinquish and 
 abandon any unconstructed route 
 or unconstructed portions of 
 route specified in the certificate 
 of incorporation or in any state- 
 ments of proposed extensions or • 
 branches of such first mentioned 
 corporation by filing in the office 
 of the secretary of state a copy of 
 a resolution of the board of di- 
 rectors of such consolidated cor- 
 
94 
 
 STREET SURFACE RAILROADS. 
 
 abutting owners along the main line of the railroad apply- 
 ing for the right to extend is not necessary.'* Where the 
 extension is not necessary to the enjoyment of a franchise 
 previously granted, then it is subservient to every condition 
 and restriction imposed by statute or ordinance at the time 
 it is proposed.'' But the consent of the local authorities to 
 the proposed extension cannot be compelled by mandamus 
 or otherwise.' Authority given in the charter of a company 
 to construct " such branches as may be necessary to connect 
 
 poration certified by its president 
 and secretary, declaring such un- 
 constructed route or unconstructed 
 portions of route relinquished and 
 abandoned, and thereupon the cor- 
 poration rights, powers and fran- 
 chises of such consolidated corpo- 
 ration shall be and continue the 
 same as though the certificate of 
 incorporation of such constituent 
 corporation had specified the con- 
 structed and not the unconstructed 
 portion of such route and pro- 
 posed extensions and branches. 
 All consents heretofore given, or 
 grants made by local authorities 
 having the control of the portion 
 of any street, avenue or highway 
 included in the route of such rail- 
 road, or any extensions or 
 tranches thereof, to any such 
 street surface railroad corpora- 
 tion, are hereby ratified and con- 
 firmed and declared valid. This 
 section shall be applicable to any 
 corporation whose lines are wholly 
 within any towns, cities or villages 
 having less than twenty thousand 
 inhabitants. 
 
 " This section shall not apply . 
 to or affect any railroad corpora- 
 tion in the city of New York; nor 
 any special grant made to or au- 
 
 thority conferred upon any street 
 surface railroad corporation by 
 any law of this state; nor any 
 pending litigation; nor shall it im- 
 pair existing rights, privileges or 
 franchises of any street sur- 
 face railroad corporation. (As 
 amended by chap. 676 of 1892, 
 and chap. 198 of 1900.) " 3 Hey- 
 decker's Genl. Laws (2d ed.), 3321. 
 
 98. Broadway & N. St. R. Co. 
 V. Brooklyn St. Ry. Co., 10 W. 
 L. B. 72. 
 
 99. City of St. Louis v. Mo. R. 
 Co., 13 Mo. App. 524; Central 
 Crosstown R. Co. v. Met. St. Ry. 
 Co., 17 Misc. Rep. (N. Y.) 716. 
 If the charter of a street railroad 
 company requires the consent of 
 the city council to the extension 
 of its road, and a supplement 
 thereto authorizes the extension 
 without such consent, a second 
 supplement silent as to the con- 
 sent is subject to the charter re- 
 quirement that the consent be ob- 
 tained. Philadelphia v. Citizens' 
 Pass. R. Co. (Com. PI.), 48 Phila. 
 Leg: Int. 220, 10 Pa. Co. Ct. 16. 
 
 I. Silsby V. Lyle, 117 Mich. 327, 
 75 N. W. 886; People ex rel. W. 
 S. St. R. Co. V. Barnard, no N. 
 Y. 548, 18 N. E. 354. 
 
EXTENSIONS. 
 
 95 
 
 them with any other railway or railways within the city " is 
 to be confined in its operation to railways in existence at the 
 time the charter was granted.^ Statutory and other requi- 
 sites to the granting of an application for leave to construct 
 a street railway do not necessarily apply to an application 
 for an extension thereof.^ An extension must be of the same 
 legal nature as that which is extended. Therefore, municipal 
 authorities have no power to extend the tracks of a corpora- 
 tion organized as a steam railroad company over the streets 
 of a city, the extension to be operated by horse power."* A 
 municipal ordinance granting authority to a street railroad 
 to extend its track is not an act conferring corporate power 
 within the constitutional provision against special acts con- 
 ferring corporate powers.^ And where extensions are au- 
 thorized over new streets not yet fully laid out and opened 
 there is no necessity for a separate ordinance for each new 
 street to be occupied as such new street is established.* No 
 formal resolution of acceptance of a franchise for a street 
 railroad extension is necessary in any case if the facts show 
 an actual, practical acceptance by the company, or action 
 which would be only explicable in case the franchise were 
 
 2. People's Pass. Ry. Co. v. grant with its restrictions, if any, 
 Marshall St. Pass. Ry. Co., 8 Pa. in the office of the secretary of 
 Co. Ct. 273. state, and delivery of a copy 
 
 3. State V. Cin. & H., etc., Ry. thereof to the clerk of the munic- 
 Co., 19 Ohio C. C. 79, 10 O. C. D. ipality. Trenton St. Ry. Co. v. 
 418; Mayor v. Eighth Ave. R. Co., Pa. R. Co. (N. J.), 49 Atl. 481. 
 
 7 App. Div. (N. Y.) 85; Mayor v. 4. Cincinnati Inc. P. R. Co. v. 
 
 N. Y. & H. R. Co., 46 St. Rep. Cincinnati, 52 Ohio St. 609, 44 N. 
 
 (N. Y.) 349; aflfd., 139 N. Y. 643, E. 327. And see S. C, 30 Ohio 
 
 35 N. E. 206. In New Jersey the L. J. 321. 
 
 right of a street railroad company S- Simms v. Brooklyn St. R. 
 
 to construct an extension depends Co., 27 Ohio St. 556. 
 
 upon the grant of municipal au- 6. Africa v. Knoxville (C. C. E. 
 
 thority and on the filing by the D. Tenn.), 70 Fed. 729. 
 
 company of an acceptance of the 
 
96 STREET SURFACE RAILROADS. 
 
 accepted ;7 but before consents can be received the applying 
 corporation must locate the road along which the extension 
 is proposed to be made.® The right to extend, conferred 
 by a street railroad charter, is not abandoned by nonuser for 
 twenty years, where the charter contains no time limitation, 
 and there is no public necessity for an earlier extension.*" 
 Municipal authorities may grant an extension of seven years 
 upon a street railroad franchise where it has authority to im- 
 pose a limit of thirty years upon its consent." In a recent 
 case, decided in the New Jersey Court of Errors and Appeals, 
 it is held that the right of street railway companies, incor- 
 porated under the act providing for the incorporation of 
 street railway companies, to construct an extension of its 
 railway depends (i) upon municipal action granting it au- 
 thority to do so, with such restrictions as the municipal body 
 may deem proper; and (2) the filing by the company of its 
 acceptance of the grant, with its restrictions, in the office of 
 the secretary of state, and the delivery of a copy thereof to 
 the clerk of the municipality. Also that the statutory pro- 
 
 7. City R. Co. V. Citizens' St. R. 10. Citizens' St. R. Co. v. City 
 Co., 166 U. S. 557, 41 L. Ed. 1114. R. Co. (C. C. D. Ind.), 64 Fed. 
 
 8. McClean v. Westchester El. 647; affd., 166 U. S. 557, 41 L. Ed. 
 Ry. Co., 25 Misc. Rep. (N. Y.) 11 14. A statute which permits a 
 383, 55 N. Y. Supp. 556. An ap- street railroad company to extend 
 plication for a street railroad fran- its tracks through certain streets 
 chise may designate a portion of to be opened, providing its road 
 the proposed route in the alterna- be built within a limited time or 
 tive, and the grant by the munic- as soon as the street shall be 
 ipality is not necessarily invalid opened, must be construed to mean 
 because it covers only a part of that the road cannot postpone the 
 the proposed route, or designates entire work until the completion 
 the grantee as " trustee." Sim- of the unfinished streets. People 
 mons V. Toledo, 5 Ohio C. C. 524. v. Broadway R. Co. of Brooklyn, 
 
 9. West Jersey Trac. Co. v. 126 N. Y. 29, 26 Abb. N. C. (N. 
 Camden H. R. Co. (N. J. Ch.), 29 Y.) 407, 26 N. E. 961, 36 St. Rep. 
 Atl. 333- (N. Y.) 376. 
 
PROCEEDINGS WITHOUT CONSENT. 
 
 97 
 
 vision cited empowers the municipality to grant to a street 
 railway company the right to extend its railway from its 
 legally authorized terminus^ but that it does not justify a 
 grant to construct an addition to an extension which has 
 been built without legal warrant." 
 
 § 9. Proceedings if property-owners do not consent. — In New 
 York, if the requisite abutting property-owners upon a street 
 through which the street railroad company desires to con- 
 struct or extend a street railroad do not consent thereto, 
 application may be made to the Appellate Division of the 
 Supreme Court for the' appointment of three commissioners 
 to determine whether such railroad ought to be constructed 
 and operated." Indeed, there is nothing to prevent several 
 
 II. Trenton St. Ry. Co. v. Penn. 
 R. Co., 24 N. J. L. J. 595- The 
 eighth section of the act (passed 
 April 6, 1886, as amended March 
 27, 1889, 3 Gen. Stat. 3220) pro- 
 vides that " the board of alder- 
 men, common council, or town- 
 ship committee, upon the petition 
 of the board of directors of any 
 company incorporated under this 
 act, or a majority thereof, for a 
 location of the tracks of its rail- 
 way therein, conformably to the 
 route designated in their articles 
 of incorporation, or for the exten- 
 sion of the same, shall give notice 
 to all parties interested (in a speci- 
 fied manner) of the time and place 
 at which they will consider such 
 application for location; and, after 
 hearing, they shall pass an ordi- 
 nance refusing such location or 
 extension, or granting the same or 
 any portion thereof, under such 
 lawful restrictions as they may 
 deem the interests of the public 
 
 require; and the location or exten- 
 sion, thus granted, shall be deemed 
 and taken to be the true location 
 or extension of the tracks of the 
 railway, if an acceptance thereof in 
 writing, by the directors, shall be 
 filed with the secretary of state 
 within thirty days after receiving 
 the notice, and a copy thereof de- 
 livered to the clerk or other 
 equivalent officer of the municipal- 
 ity or township." 
 
 12. The statute (art. IV, chap. 
 56s of 1900. The Railroad Law, 
 3 Heydecker's Gen. Laws, 3313) 
 reads as follows: 
 
 " § 94. Proceedings if prop- 
 erty-owners do not consent — If 
 the consent of property-owners re- 
 quired by any provision of this 
 article cannot be obtained, the 
 corporation failing to obtain such 
 consents may apply to any gen- 
 eral term of the supreme court 
 held in the department in which 
 it is proposed to construct its road 
 
98 
 
 STREET SURFACE RAILROADS. 
 
 applications in regard to particular streets named in the 
 petition, provided such streets are also named in the articles 
 of association, or application for extension, as being streets 
 through which it is proposed to construct, extend, maintain, 
 and operate the railroad. If the proceeding be taken in 
 regard to but one street, or any number of streets less than 
 the total contained in the articles of association, those only 
 
 for the appointment of three com- 
 missioners to determine whether 
 such railroad ought to be con- 
 structed and operated. Notice of 
 such application must, at least 
 ten days prior thereto, be served, 
 personally, upon each nonconsent- 
 ing property-owner by delivering 
 the same to the person to whom 
 such property is assessed upon 
 such assessment-roll or by duly 
 mailing the same, properly folded 
 and directed, to such property- 
 owner at his post-office address 
 witht the postage prepaid thereon. 
 If the person upon whom service 
 is to be made is unknown, or his 
 residence and post-office address 
 are unknown and cannot by rea- 
 sonable diligence be ascertained, 
 service of such notice may be 
 made by publishing the same in . 
 such newspaper of the county as 
 the court may direct, at least orice 
 a week for two successive weeks. 
 Upon due proof of service of such 
 notice the court to which the ap- 
 plication is made shall appoint 
 three disinterested persons, who 
 shall act as commissioners, and 
 who shall, within ten days after 
 their appointment, cause public no- 
 tice to be given of their first 
 meeting in the manner directed by 
 the court and may adjourn from 
 
 time to time, until all their busi- 
 ness is completed. Vacancies 
 may be filled by the court after 
 such notice to parties interested as 
 it may deem proper to be given; 
 and the evidence taken before as 
 well as after the happening of the 
 vacancy shall be deemed to be 
 properly before such commission- 
 ers. After a public hearing of all 
 parties interested, the commission- 
 ers shall determine whether such 
 railroad ought to be constructed 
 and operated, and shall make a re- 
 port thereon, together with the 
 evidence taken, to the general 
 term, within sixty days after ap- 
 pointment, unless the court, or a 
 judge thereof, for good cause 
 shown, shall extend such time; 
 and their determination that such 
 road ought to be constructed and 
 operated, confirmed by such court, 
 shall be taken in lieu of the con- 
 sent of the property-owners here- 
 inbefore required. The commis- 
 sioners shall each receive ten dol- 
 lars for each day spent in the per- 
 formance of their duties and their 
 necessary expenses and disburse- 
 ments, which shall be paid by the 
 corporation applying for their ap- 
 pointment. (As. amended by chap. 
 676 of 1892.) " 
 
PROCEEDINGS WITHOUT CONSENT. 99 
 
 who are interested in property along the streets in regard 
 to which the petition is presented, are proper parties. And 
 no determination made by the commissioners appointed in 
 the proceeding can bind or in any manner afifect property- 
 owners along other streets not mentioned in the petition; 
 and if subsequent proceedings should be taken for the ap- 
 pointment of commissioners to determine as to the con- 
 struction of the road through their streets, such owners 
 would have the right to oppose the granting of the petition 
 or the making of the determination by the commissioners, 
 wholly irrespective of any previous determination made by 
 other commissioners in other proceedings in relation to other 
 streets.'^ The application should properly be made on peti- 
 tion modeled somewhat after the form prescribed in con- 
 demnation proceedings, although affidavits containing the 
 requisite averments may suffice. The papers upon which 
 application is made must snow that the applicant is a street 
 railroad corporation incorporated under the laws of that 
 State, and must contain averments showing compliance with 
 every statutory or other precedent requisite. "* It will not 
 do to state generally that some of the owners decline to con- 
 sent, and that consents of others cannot be obtained by 
 reason of their absence, and that application had been made 
 therefor diHgently and in good faith.'' The papers must 
 show just what has been done with reference to obtaining 
 the consents, the names and the amount of the holdings of 
 the persons to whom application to consent had been made, 
 and their refusal, and the total amount of the property owned 
 
 13. Matter of People's R. Co., iS- Matter of Broadway Und. 
 
 112 N. Y. 578, 582, 20 N. E. Ry. Co., 23 Hun (N. Y.), 693; Mat- 
 
 ^367. 
 
 ter of Broadway Surface R. Co., 
 
 14. Re Brooklyn City R. Co., 26 36 id. 644; Matter of N. Y. Cable 
 App. Div. (N. Y.) 627. Ry- Co., id. 3SS. 
 
lOO STREET SURFACE RAILROADS. 
 
 on the street on which the road is proposed to be con- 
 structed, so that the court may see and determine from the 
 averments that the requisite consents of abutting owners 
 cannot be obtained. '^ A proceeding to procure the favor- 
 able report of commissioners appointed by this court is 
 entirely independent of a proceeding to procure the consent 
 of the local authorities, or of the board of railroad commis- 
 sioners; and hence it is no defense to a motion to confirm 
 the report of commissioners so appointed that the other con- 
 sents will have to be obtained before the road can be actually 
 constructed.'* The determination of the commissioners is 
 not final or self-operative. It must be confirmed by the 
 Appellate Division of the Supreme Court, which has the 
 power and the duty, as a tribunal of original jurisdiction, to 
 review the whole case and to pass upon the sufficiency of the 
 facts and circumstances to warrant the determination of the 
 commissioners that there ought to be a street railroad in any 
 municipality where there were not in favor of it one-half of 
 the property-owners to be affected. '^ This court has power 
 to confirm a report duly made by a majority of the commis- 
 sioners appointed; and while it may and should determine 
 for itself whether the facts disclosed to the commissioners 
 are sufficient to justify the granting of the petition,'^ it 
 cannot, in the face of an adverse report, determine that the 
 railroad should be constructed and operated. '» In fact, the 
 Appellate Division cannot act except to confirm* or refuse to 
 confirm a favorable report, unless the adverse report is im- 
 
 13. See note 13 on page 99. 82 N. Y. 95, 102; Re Port Chester 
 
 16. Re Buffalo Traction Co., 25 St. Ry. Co., 43 App. Div. (N. Y.) 
 
 App. Div. (N. Y.) 447; affd., 155 S36; Re N. Y. Cable Ry. Co., 40 
 
 N. Y. 700; Colonial City T. Co. Hun (N. Y.), i. 
 
 V. Kingston R. Co., 154 id. 493, 18. Re Port Chester St. Ry. Co.,^ 
 
 48 N. E. 900. 43 App. Div. (N. Y.) 538. 
 17- Re Kings Co. El. R. Co., 19. Const., art. Ill, § 18. 
 
PROCEEDINGS WITHOUT CONSENT. lOI 
 
 peached for fraud or such irregularity as would deprive the 
 petitioner of a statutory or vested right.^" The power of 
 the court to appoint implies power to supervise the conduct 
 of the persons appointed, at least to the extent of seeing 
 whether they disobeyed the statute which called them into 
 existence, or acted corruptly, or failed to comply with the 
 order appointing them by pubHshing and serving the notices 
 specified therein. The commissioners are not appointees of 
 the legislature, but of the court pursuant to the provisions 
 of the Constitution, to decide a certain question " after a 
 hearing of all parties interested." They are not a distinct 
 tribunal, for they are appointed by the court and report to 
 the court. If they refuse to hear the parties in interest the 
 court can set aside their determination and appoint new 
 commissioners to do what the law requires, in the manner 
 specified, after due notice and an opportunity to be heard. 
 While not bound to strict compliance with common-law evi- 
 dence, or to any particular method of procedure^ except as 
 specified by statute, their action is judicial in character and 
 must, to a reasonable extent, conform to judicial methods, 
 for by command of the Constitution a " hearing " is to be 
 had and a " determination " made. A substantial departure 
 from what is fairly to be implied from the use of the words 
 " hearing " and " determination " in the fundamental law 
 authorizes the court which appointed the commissioners to 
 set aside their action and proceed anew. If, for instance, they 
 state in their report that their only reason for deciding that 
 the road ought not to be built was some fact, utterly imma- 
 terial, or if they show conclusively that they exercised pow- 
 ers they did not possess, or failed to exercise the powers they 
 
 20. Re Nassau Cable Co., 36 Hun (N. Y.), 272. 
 
T02 STREET SURFACE RAILROADS. 
 
 did possess, because they thought the law withheld them, it 
 is clear that their decision would not be a determination 
 within the intent of the law. If, through misconduct,, 
 palpable error, or accident they fail to make such a report 
 as the law contemplates, it is the duty of the Appellate Divi- 
 sion, upon proper application, to set their report aside and 
 appoint other commissioners, or remit the matter to the same 
 commissioners with proper instructions. Unless the ap- 
 pointees of the court keep within the law, as well as its own 
 order, it necessarily has power to interfere, not by way of 
 review as upon appeal or certiorari, but in the exercise of 
 original jurisdiction flowing from the power to appoint, as 
 otherwise the object of the appointment would be defeated 
 by the misconduct ot the commissioners.^' 
 
 § 10. Proceeding without consent; how prevented. — Without 
 the statutory consents the street railroad company has no 
 right to commence the construction of its road in the street 
 as to which the consents are withheld; and any abutting 
 property-owner in that street, owning to the center thereof, 
 can maintain an equitable action to restrain such construc- 
 tion, and need not prove special damage ;^^ but where his 
 
 21. Matter of Nassau El. R. Co., ities, but not of one-half the abut- 
 167 N. Y. 37-40, revg. 6 App. Div. ting owners, and thereupon obtains 
 (N. Y.) 141. the appointment of commissioners 
 
 22. McClean v. The Westchester to determine whether the road 
 El. Ry. Co., 25 Misc. Rep. (N. Y.) should be constructed, and threatens 
 383; Re Cortland, etc., R. Co., 31 after such commissioners have re- 
 Hun (N. Y.), 72; Roberts v. ported in favor of the construction 
 Easton, 19 Ohio St. 78; Wiggins of the road and their report shall 
 Ferry Co. v. E. St. Louis Ry. Co., have been confirmed by the appel- 
 107 III. 450; Peck v. Schenectady K. late division, to begin the construc- 
 Co., 67 App. Div. 359. In the case tion of the road, an abutting owner 
 last cited, it was held that where a having title to the fee of the street 
 railway company procures the con- may have an injunction; and the 
 sent of the necessary local author- court will not, against his pro- 
 
PROCEEDINGS WITHOUT CONSENT. 
 
 103 
 
 property is bounded by the exterior line of the street and 
 he does not own the fee of any part of the street, he is not 
 entitled to enjoin the maintenance and operation of the rail- 
 road in the absence of proof that he has suffered special 
 damage therefrom.^3 Citizens and taxpayers who are not 
 owners of abutting property cannot maintain an action.^* 
 In Illinois, the construction of an unauthorized road may 
 be prevented by injunction on information filed by the 
 attorney-general. ^5 in any case laches or acquiescence may 
 be a defense to the action.^* It is incumbent upon the plain- 
 tiff to prove upon the trial that the requisite consents have 
 not been obtained."^^ If however a temporary injunction be 
 granted during the pendency of the action, upon sufficient 
 
 test, assess the damages which he 
 will sustain by reason of the con- 
 struction of the road and grant an 
 alternative judgment such as is 
 usual in the elevated railroad cases, 
 nor will it deny the abutting owner 
 relief upon the railway company 
 giving adequate security for the 
 payment of any compensation which 
 may be found due to him by reason 
 of the appropriation of his land. 
 The court said that in none of the 
 elevated road cases where such 
 practice obtained did it appear that 
 the plaintifif protested against try- 
 ing the question of damages before 
 the court and taking the alternative 
 judgment; and also, that in every 
 case, except that of Story v. The N. 
 Y. Elev. R. Co., 90 N. Y. 122, the 
 railroad was already in operation. 
 
 23. Black V. Brooklyn Heights 
 R. Co., 32 App. Div. (N. Y.) 468. 
 
 24. Harrison v. Mt. Auburn 
 Cable Ry. Co., 17 W. L. B. 265; 
 Knorr v. Miller, 5 O. C. C. 609; 
 Simmons v. Toledo, id. 124. 
 
 25. Hunt, Attorney-General, v. 
 Chicago, etc., Ry. Co., 121 111. 638, 
 13 N. E. 176. And see People, 
 West Side St. R. Co. v. Barnard, 
 no N. Y. 548, 18 N. E. 354. 
 
 26. Paterson, etc., Ry. Co. v. 
 Mayer, 24 N. J. Eq. 158; Ferguson 
 v. Covington & C. El. R., etc., 
 Co. (Ky.), 57 S. W. 460. Although 
 road was constructed under order 
 of court on failure to procure suf- 
 ficient consents of abutting own- 
 ers, yet one who did sign consent 
 cannot maintain action to prevent 
 operation of road. Heimburg v. 
 M. Ry. Co., 162 N. Y. 352. S6 N. E. 
 899. And see Bellew v. N. Y., W. 
 & C. T. Co., 47 App. Div. (N. Y.) 
 447, 62 N. Y. Supp. 242; Detwiler 
 v. Toledo EI. St. R. Co., 6 Ohio 
 N. P. 485, 8 Ohio S. & C. P. Dec. 
 166. 
 
 27. O'Brien v. The Buffalo 
 Traction Co., 31 App. Div. (N. 
 Y.) 632. And see Matter of Buf- 
 falo T. Co., 25 App. Div. (N. Y.) 
 447; affd., IS5 N. Y. 700. 
 
I04 STREET SURFACE RAILROADS. 
 
 papers, the defendant, to set it aside, being charged with 
 the duty of obtaining these consents, must be presumed to 
 be possessed of knowledge and of the consents which gave 
 it the right to construct the railroad in the street and has the 
 burden of proving its consents.""* The owner of the fee how- 
 ever to the center of the street, who has not consented to the 
 construction and operation of the road as required by stat- 
 ute, while he may bring his action to recover damages for the 
 taking of his property, cannot restrain the railroad company 
 from constructing and operating its road along the street, 
 provided the statutory consents of a sufficient number of 
 property-owners has been given."^' 
 
 § 11. Conditions imposed with consents; rights of the grantee 
 and the public thereunder. — The franchise granted to the 
 street surface railroad company and accepted by it con- 
 stitutes a contract. Therefore every condition imposed by 
 the abutting property-owners or the " local authorities," 
 which does not nullify or modify limitations and restrictions 
 
 28. Dusenberry v. N. Y., etc., T. shifted by the fact that in an ap- 
 Co., 46 App. Div. (N. Y.) 267. plication made under the provi- 
 
 29. Adee v. Nassau El. R. Co., sions of the Constitution and sec- 
 65 App. Div. 529. In the case tion 94 of the Railroad Law for 
 cited the complaint alleged that the appointment of commission- 
 the requisite statutory consents ers to determine whether the rail- 
 had not been obtained. The rail- road should be constructed upon 
 road company answered denying the street, the company had al- 
 this allegation and furnishing a leged that it was unable to se- 
 bill of particulars showing that the cure the necessary consents, if it 
 necessary number of alleged con- appear that since the commence- 
 sents, reciting ownership in the in- ment of that proceeding the rail- 
 dividuals giving them, made in the road company had succeeded to 
 usual form and acknowledged or the rights of another company 
 proved, had been recorded pur- which also had procured a number 
 suant to the statute. It was held of consents for the construction 
 that the burden of proving that of a street surface railroad upon 
 such consents were ineffective was the street in question. 
 
 upon the plaintiff, and was not 
 
CONDITIONS IMPOSED. 
 
 105 
 
 already imposed by law in favor of the public, and which 
 imposes upon the grantee still greater restrictions and limita- 
 tions for the public advantage, must be strictly compHed 
 with. Their power to grant or withhold consent to the con- 
 struction of street railroads is absolute and they may impose 
 any conditions, however onerous or difficult to perform, 
 which do not limit or restrict the rights of the public, as the 
 terms upon which their consent will be given. If the terms 
 imposed by abutting property-owners are unreasonable, the 
 company may proceed as if their consent were refused. If 
 however it choose to act upon such consents it must comply 
 with the terms of its contract.^" Thus rates of fare may be 
 controlled ;3' the time for constructing the road may be 
 
 30. People ex rel. W. S. St. R. 
 Co. V. Barnard, no N. Y. 548, 18 
 N. E. 354; Gaedeke v. S. I. & M. 
 R. Co., 43 App. Div. (N. Y.) Si4, 
 60 N. Y. Supp. 598; People v. Chi- 
 cago W. Div. Ry. Co., 118 111. 113, 
 7 N. E. 116; Loyalsock Township 
 V. M. T. R. Co. (C. P.), 7 Pa. 
 Dist. 291; Borough of Shamoken 
 V. S. M. C. El. Co. (Pa.), 46 Atl. 
 382; Central R. E. Co.'s Appeal, 
 67 Conn. 197, 35 Atl. 32; Louis- 
 ville Trust Co. V. Cincinnati (C. 
 C. S. D. Ohio), ^^ Fed. 716; 
 Perkiomen R. Co. v. Collegeville 
 El. St. Ry. Co. (C. P.), 14 Mont. 
 Co. L. Rep. 13. 
 
 Where an ordinance is passed 
 granting to a company the right 
 to use city streets for railway pur- 
 poses upon conditions affecting 
 the operation of the road, for its 
 proper construction and requiring 
 it to keep the streets and tracks in 
 proper repair, the city cannot re- 
 serve the legal right to repeal 
 such ordinance on the failure of 
 
 the company to comply with such 
 conditions, on its own adjudica- 
 tion without applying to the 
 courts. Citizens' H. R. Co. v. 
 Belleville, 47 111. App. 388. The 
 council of a city may refuse per- 
 mission to a street railroad com- 
 pany to construct its road in its 
 streets; but if it grants permission 
 it may not do so upon the con- 
 dition that the company does not 
 exercise one of its corporate pow- 
 ers, and therefore a condition or 
 regulation that the company shall 
 not carry freight is void. State v. 
 Dayton Traction Co., 18 Ohio C. 
 C. 490, 10 O. C. D. 212. And see 
 Montclair Military Academy v. 
 New Jersey St. Ry. Co. (N. J. 
 Sup.), 47 Atl. 890. 
 
 31. Gaedeke v. S. I. & M. R. 
 Co., 46 App. Div. (N. Y.) 220; 
 S. C, 43 id. 521, 60 N. Y. Supp. 
 
 598. 
 
 Rates of fare so controlled can- 
 not be subsequently modified by 
 the municipal corporation, unless 
 
io6 
 
 STREET SURFACE RAILROADS. 
 
 limited ;3^ license fees may be required;" compliance with all 
 ordinances in force or thereafter to be passed in reference to 
 railroads ;34 and that disputes between grantee and its em- 
 ployees must be submitted to arbitration ;35 a percentage of 
 the gross earnings from all sources may be exacted ;3^ so 
 with incidental expenses of the ordinance and a reasonable 
 
 such power is reserved in the 
 ordinance. Cleveland City Ry. 
 Co. V. City of Cleveland (C. C. N. 
 D. Ed.), 12 O. C. D. 63s, 47 O. 
 L. B. 635. 
 
 Where a city council granted a 
 street railway the right to lay tracks 
 on public alleys and streets by pay- 
 ment of damages to abutting owners, 
 and an abutting owner consented to 
 the construction of a side track by 
 the company in a certain alley, 
 vifaiving all damages resulting there- 
 from, the company agreeing that if 
 it became necessary to close the 
 alley it would vacate its tracks, it 
 was held that on the subsequent 
 passing of an ordinance with the 
 consent of the abutting owners that 
 the alley should be vacated, and 
 granted the use to another company, 
 it became incumbent on the street 
 railway company to vacate the 
 track. Getchell & Martin Lumber 
 & Mfg.- Co. V. Des Moines Union 
 Ry. Co. (Iowa), 87 N. W. 670. 
 
 32. Dusenberry v. N. Y., W. & 
 N. C. T. Co., 46 App. Div. (N. Y.) 
 267; Hutchinson v. Borough of 
 Belmar, 62 N. J. L. 450, 45 Atl. 
 1092. But a city can impose no 
 terms on the construction of a 
 street railroad upon its streets, 
 where its consent is not made 
 necessary for such construction. 
 Philadelphia v. Empire Pass. R. 
 
 Co., 177 Pa. St. 382, 35 Atl. 721. 
 And see Whiting v. New Balti- 
 more (Mich.), 86 N. W. 403, 8 
 Det. Leg. N. 236. 
 
 33. Mayor v. Broadway & 
 Seventh Ave. R. Co., 17 Hun (N". 
 Y.), 242; Byrne v. Chicago, etc., 
 R. Co., 63 111. App. 438, I Chic. L. 
 J. W. 533; aflfd., 169 111. 75. 48 N. E. 
 763, 7 Am. & Eng. Corp. Cas. (N. 
 S.) 768. Not so however where 
 the corporation is organized under 
 a contract with good consideration 
 expressed conferring rights and 
 powers and defining upon what 
 terms it might use the streets and 
 run its cars. Mayor v. Second 
 Ave. R. Co., 32 N. Y. 261; Mayor 
 V. Third Ave. R. Co., 33 N. Y. 42; 
 Byrne v. Chicago G. R. Co., 169 
 111. 75, 48 N. E. 703, 7 Am. & Eng. 
 Corp. (N. S.) 768, aflfg. 63 111. 
 App. 438; Mayor, etc. v. Third 
 Ave. R. Co., 117 N. Y. 404, 27 St. 
 Rep. (N. Y.) 170, 40 Am. & Eng. 
 R. Cas. 278, 22 N. E. 755. 
 
 34. Philadelphia v. Ridge Ave. 
 Pass. R. Co., 143 Pa. St. 444, 22 
 Atl. 69s, 28 W. N. C. 388, 48 
 Phila. Leg. Int. 414. 
 
 35- Wood V. Seattle (Wash.), 62 
 Pac. 135. 
 
 36. Cincinnati v. Mt. Auburn 
 Cable R. Co. (Cin. Super. Ct.), 28 
 Ohio L. J. 276. 
 
CONDITIONS IMPOSED. 
 
 107 
 
 counsel fee;37 the traffic may be limited strictly to the 
 carriage of passengers although the charter of the company 
 authorizes it to carry freight and express matter also. 3* 
 The franchise carries with it not only the rights and con- 
 ditions expressed, but those also which are necessarily to be 
 implied, that is to say, those which are, not simply con- 
 venient, but indispensable.39 It is a well-settled principle 
 however that no implication will be indulged in derogation 
 of the rights of the public, in the absence of express or plain 
 
 37. Hutchinson v. Borough of 
 Belmar, 62 N. J. L. 450, 45 Atl. 
 1062. To the grant of the right to 
 occupy its streets with street rail- 
 way tracks the city may attach 
 conditions necessary to protect 
 itself from pecuniary liability and 
 to secure the health and welfare 
 of its citizens. Springfield v. Rob- 
 berson Ave. R. Co., 69 Mo. App. 
 514. It is not a waste of munic- 
 ipal property to allow a street rail- 
 road company to lay a railroad 
 track upon a street of New York 
 city on payment of $100 per an- 
 num and all expenses. Hart v. 
 Mayor, 16 App. Div. (N. Y.) 227, 
 44 N. Y. Supp. 767. When the 
 road is constructed under proper 
 authority on a street outside the 
 city limits, the company cannot be 
 compelled, after such street has 
 been brought within the limits, to 
 remove its tracks because of its 
 failure to comply with the terms 
 on which it was originally allowed 
 to use the street. Johnson v. 
 Owensboro & N. R. Co., 18 Ky. 
 L. R. 276, 36 S. W. 8. 
 
 38. St. Louis & M. R. Co. V. 
 Kirkwood, iS9 Mo. 239, 53 L. R. 
 A. 300, 60 S. W. no. But in 
 Nebraska it has been recently de- 
 
 cided that the privileges of the 
 company are determined by the 
 general law, and not by the ordi- 
 nances under which, with the con- 
 sent of the majority of the electors, 
 it is given the right to use the 
 streets. Lincoln St. Ry. Co. v. 
 Lincoln, 84 N. W. 802. 
 
 39. Detroit Citizens' R. Co. v. 
 Detroit R. Co., 171 U. S. 48, 43 
 L. Ed. 67. A street railroad com- 
 pany which has accepted a fran- 
 chise from a city and has laid its 
 road in the streets in accordance 
 therewith cannot arbitrarily dis- 
 continue the operation of any part 
 of such road to the detriment of 
 the city and its inhabitants, as an 
 implied condition attaches to the 
 grant that it be held for public 
 benefit. Nor can it avoid its duty 
 to operate a portion of its road, 
 because it has rightfully or wrong- 
 fully been excluded from a county 
 bridge separating such portion 
 from the rest of the road until it 
 will comply with certain condi- 
 tions, where it is practicable to 
 operate both portions of the road 
 without crossing the bridge. State, 
 Bridgeton v. Bridgeton, etc., Co. 
 (N. J. Sup.), 62 N. J. L. 592, 45 
 L. R. A. 837, 43 Atl. 715- 
 
io8 
 
 STREET SURFACE RAILROADS. 
 
 terms of grant. An intention to grant an exclusive privilege 
 or monopoly will not be implied, nor will a grant of privileges 
 be given scope and effect, in restriction of public right, be- 
 yond what the plain words employed require. This is an 
 established principle applicable in the construction of grants 
 by the State, and it is equally applicable in the construction 
 of grants or privileges by a municipal corporation affecting 
 public rights.*" As illustrating these principles, a provision 
 of the franchise giving the railroad company the privilege 
 of laying all necessary sidings, connections, and switches for 
 the proper working and accommodation of the railroad in 
 specified streets does not justify a substantial addition to its 
 road which is not a mere adjunct of its authorized line.'*' 
 
 40. N. Bait., etc., Ry. Co. v. 
 North Ave. Ry. Co., 4 Am. Electl. 
 Cas. I, 9, 75 Md. 233; Omaha H. 
 Ry. Co. V. Cable Tramway Co., 
 30 Fed. 324; Sioux City St. Ry. 
 Co. V. Sioux City, 138 U. S. 98, 
 107, 34 L. Ed. 898; Junction Pass. 
 Ry. Co. V. Williamsport Pass. Co., 
 154 Pa. St. 116, 32 W. N. C. 152, 
 26 Atl. 295. A street railroad 
 company has no exclusive right 
 to the use of the street covered 
 by its tracks, except where the 
 necessities of its operation require 
 that such rights should be con- 
 ceded it. Edgerton v. O'Neill, 4 
 Kan. App. yz, 46 Pac. 206. No 
 power is conferred upon cities by 
 Ohio Rev. Stat., § 3438, to au- 
 thorize street railway companies 
 to extend their roads over State 
 or county roads under supervision 
 of the county commissioners, with- 
 out condemnation or an agree- 
 ment with the commissioners, 
 but only to grant such right 
 subject to the obligation of 
 
 making such agreement or insti- 
 tuting such proceedings. Citi- 
 zens, etc., Co. v. County Comrs., 
 56 Ohio St. I, zy Ohio L. J. 165, 
 46 N. E. 60. An ordinance grant- 
 ing the right to operate a railroad 
 in certain streets by electricity or 
 such other power as will not neces- 
 sarily obstruct the public use of 
 the streets confers no right in- 
 dependently of the city's consent 
 or its effect upon other public 
 uses of the streets to use steam 
 as a motive power. Houston v. 
 Houston B. & M. P. Co. (Tex.), 
 19 S. W. 786; Hamilton & L. E. 
 T. Co. v. Hamilton (Ohio C. P.), 
 I Ohio N. P. 366. 
 
 41. Central Crosstown R. Co. v. 
 Met. St. R. Co., 17 Misc. Rep. (N. 
 Y.) 716, 40 N. Y. Supp. 1095. But 
 a contract between a municipality 
 and a railroad company, authoriz- 
 ing the use of streets for the con- 
 struction of a single railway track, 
 authorizes the necessary switches 
 to enable the running of cars in 
 
CONDITIONS IMPOSED. IO9 
 
 Because the ordinance imposes certain terms accepted by the 
 company as consideration, the company is not relieved from 
 hability for Hcense fees imposed upon electrical poles and 
 wires as a police regulation.*^ Where the company is author- 
 ized to operate a street car system in connection with which 
 it maintains a carbarn fronting on one street with its sides 
 abutting on others, it is entitled to bring in and take out its 
 cars over tracks upon the side streets, although such right 
 is not expressly granted in the ordinance.'*^ Where the ordi- 
 nance permitted the laying of " tracks or track " and the 
 company laid a single track, it was held that they had the 
 right at any time thereafter to construct another track;'** 
 tinder authority to construct " a horse railroad track or 
 tracks" the railroad may be operated by electricity; and 
 where it is authorized to operate by any motive power it 
 may deem expedient and proper, it is not confined to the 
 animal and steam power known or in practical use at the 
 time of the grant, but it may use the electrical trolley 
 system.*' An easement granted for a particular purpose 
 ceases when its use for such purpose is or becomes impos- 
 sible under the terms of the grant.*^ The rate of speed can- 
 both directions. Wilkes-Barre v. L. R. A. 674, 48 St. Rep. (N. Y.) 
 Coalville Pass. Ry. Co. (C. P. Pa.), 417, 3i Am. R. & Corp. Rep. 619, 
 8 Kulp, 298. 32 N. E. 148; Lockhart v. Craig 
 
 42. McKeesport v. Citizens' St. R. Co., 139 Pa. St. 419, 47 Am. 
 Pass. R. Co., 2 Super. Ct. (Pa.) & Eng. R. Cas. S7, 21 Atl. 26, 9 
 249. R. & Corp. L. J. 183. 
 
 43. Romer v. St. Paul City R. An exclusive legislative grant 
 Co., 75 Minn. 211, ^^ N. W. 825. of a right to build, erect, and 
 
 44. Workmen v. So. Pac. R. Co., operate horse railways does not 
 .62 Pac. 185, 316. apply to a cable tramway. Omaha 
 
 45. Paterson Ry. Co. v. Grundy, H. R. Co. v. Cable Tramway Co., 
 4 Am. Electl. Cas. 173, 5i N. J. 30 Fed. 324- 
 
 Eq. 231, 26 Atl. 788. And see 46. So an easement to lay and 
 
 Hudson R. Tel. Co. v. Watervliet maintain a railroad track in a 
 Tp. & Ry. Co., 13s N. Y. 393, 17 street on condition that the cars 
 
no 
 
 STREET SURFACE RAILROADS. 
 
 not be controlled by any stipulation in the consent of the 
 local authorities to the use of the streets for railroad purposes, 
 since it is a matter within the police power of the State, and 
 the municipality cannot divest itself of the power to regulate 
 the speed as circumstances may require.*^ The observance 
 of the conditions imposed by the local authorities when 
 granting the franchise can only be enforced by the local 
 authorities, unless it be a matter of such public concern that 
 any citizen, in the interest of the public, may compel it/* 
 The Federal court has jurisdiction to grant relief by injunc- 
 tion in case an ordinance relating to street railways impairs 
 an existing contract right or practically constitutes the 
 taking of property without due process of law/' 
 
 § 12. When consents may be presnined. — Consent, at least as 
 to private persons, if not as to the municipality itself, may be 
 
 should be moved thereon by ani- 
 mal power only is at an end if 
 practical use of the track cannot 
 be made by animal power. So. 
 R. Co. V. City of Memphis (U. 
 S. C. C. A. Tenn.), 97 Fed. 819. 
 
 47. Brooklyn v. Nassau El. R. 
 Co., 20 App. Div. (N. Y.) 31. 
 
 48. So held where the ordinance 
 declared that the franchise should 
 not authorize any other company 
 to use it. Chicago & S. S. R. T. 
 R. Co. V. Northern Trust Co., 90 
 III. App. 460. 
 
 49. Cleveland City Ry. Co. v. 
 City of Cleveland (C. C. N. D. 
 Ed.), 12 O. C. D. 63s, 47 O. L. B. 
 635. In the case cited, it appeared 
 that the city had granted to sev- 
 eral companies street railway 
 franchises with reservation of the 
 right to subsequently regulate rates 
 of fare; but afterward, without 
 such reservation, granted addi- 
 
 tional rights for extensions, addi- 
 tional tracks, etc., with new con- 
 ditions as to paving and increased 
 service, and provided that but one 
 fare should be charged between 
 certain points. Such companies 
 were consolidated subsequently 
 with other lines, in whose fran- 
 chises no reservation as to fare 
 was made, into two large systems, 
 the city consenting and providing 
 in their consent for transfers to 
 other cars in order to permit pas- 
 sengers to ride over the two 
 lines for one fare. It was held 
 that such limitation operated to re- 
 peal the provisions in the original 
 franchises authorizing the city to 
 regulate the rates of fare, and that 
 an ordinance requiring the con- 
 solidated companies to reduce rates 
 was unconstitutional, since it im- 
 paired the obligation of the con- 
 tracts. 
 
ACCEPTANCE. Ill 
 
 by ratification as well as by previous permission, and after 
 five years' operation, certainly as against a private person 
 complaining, a trolley line must be presumed to have been 
 rightfully on the street, and therefore not a public nuisance, s"' 
 And where tracks have been located on the side or in the 
 center of a street for a long time the proper authorities will 
 be presumed to have consented to such location.^' Unless 
 property rights are invaded, the usurpation of a franchise is 
 a matter only between the State and the company.^^ 
 
 § 13. Acceptance of franchise. — No formal resolution of 
 acceptance by the street railroad company is required to be 
 filed, or made, in any case unless written acceptance is re- 
 quired by statute, or is imposed as a condition of their con- 
 sent by the local authorities; and where written consent is 
 thus required and filed the force thereof is not diminished 
 by a declaration in the instrument of consent that the com- 
 pany waives none of its vested rights under its charter." If 
 the facts show an actual, practical acceptance by the com- 
 pany, or action which would be only explicable in case the 
 franchise were accepted, it is sufficient, si A previous request 
 for an ordinance obviates the necessity of a subsequent 
 acceptance's The acceptance of an ordinance extending 
 
 so. Potter V. Scranton Trac- A. 371. 49 N. W. 538, 50 Am. & 
 
 tion Co., 6 Am. Electl. Cas. 95, Eng. R. Cas. 250. 
 
 176 Pa. St. 271, 4 Am. & Eng. R. S3- Trenton v. Trenton H. R. 
 
 Cas. (N. S.) 307, 35 Atl. 188, 38 Co. (N. J. Sup.), 19 Atl. 263. 
 
 W. N. C. 4S3; Pa. S. V. R. Co. 54- City Ry. Co. v. Citizens' St.. 
 
 V. Philadelphia R. Co., 160 Pa. R. Co., 166 U. S. SS7, 4i L- Ed. 
 
 St. 277. ■ 1 114, 17 Sup. Ct. Rep. 653. 
 
 SI. Twaddell v. Chester Trac- SS- City Ry. Co. Case, supra; 
 
 tion Co. (C. P.), 6 Del. Co. Rep. Atlanta v. Gate City Gas Light 
 
 399 
 
 Co., 71 Ga. 106; Illinois River R. 
 
 52. Nichols V. Ann Arbor & Y. Co. v. Zimmer, 20 111. 654; Lin- 
 St. R. Co., 87 Mich. 361, 6 L. R. coin & K. Bank v, Richardson, i 
 
112 STREET SURFACE RAILROADS. 
 
 the franchise of a street railroad company may be presumed 
 from the fact that the amendment is beneficial to the cor- 
 poration — especially when it proceeds to issue bonds falling 
 due at the expiration of the enlarged franchise.^^ Upon 
 acceptance, and not before, the contract is made and cannot 
 be revoked,57 and the railroad company having deposited an 
 amount as liquidated damages in case of its failure to con- 
 struct the road as agreed upon, cannot thereafter maintain 
 an action to have the grant annulled, the contract rescinded, 
 and to recover the deposit.^* But mere silence, unless main- 
 tained for a considerable time, will not be held to indicate 
 that the company has accepted an ordinance conferring 
 Tights and privileges not included in the company's charter, 
 and also imposing upon it additional burdens.'' 
 
 § 14. Rights under franchise, how and by whom qnestionedv— 
 
 The validity of the ordinance and consents under which a 
 
 Me. 79, 10 Am. Dec. 34; State, to such person, is not shown by 
 
 Carlton v. Dawson, 22 Ind. 272; the company's agreement to hold 
 
 Newton v. Carbery, 5 Cranch (C. the city harmless from ' all dam- 
 
 C), 632; Perkins v. Sanders, 56 ages that might occur to it by 
 
 Miss. 733. reason of the failure to comply 
 
 56. City Ry. Co. Case, supra; with the ordinance. Murphy v. 
 
 Bank of U. S. v. Dandridge, 25 Lindell Ry. Co., 153 Mo. 252, 52 
 
 U. S. (12 Wheat.) 64, 6 L. Ed. S. W. 442. 
 
 552; Charles River Bridge v. War- 57. Township of Hamtramck v. 
 
 ren Bridge, 7 Pick. (Mass.) 344; Rapid Ry. Co. (Mich.), 81 N. W. 
 
 Commonwealth v. Cullen, 13 Pa. 337; Richmond R. & E. Co. v. 
 
 St. 133, S3 Am. Dec. 450; Bangor Brown, 97 Va. 26, 32 S. E. 775, i 
 
 O. & M. R. Co. V. Smith, 47 Me. Va. S. C. Rep. 213; Hamilton, 
 
 34- Acceptance by a street rail- Jones v. C. & H. El. St. Ry. Co. 
 
 way company of an ordinance de- (C. P.), s Ohio N. P. 457. 
 
 daring that motormen and con- 58. Peekskill R. Co. v. Peeks- 
 
 ductors must keep vigilant watch kill, 21 App. Div. (N. Y.) 94, 47 
 
 for persons on or moving toward N. Y. Supp. 305. 
 
 the track and stop the car in the 59. Western P. & S. Co. v. 
 
 shortest time and space possible Citizens' St. Ry. Co., 128 Ind. 525, 
 
 on the first appearance of danger 26 N. E. 188, 10 L. R. A. 777. 
 
rights; how questioned. 
 
 113 
 
 street railway company constructed and is operating its road, 
 aad the fact that it failed to complete its road in conformity 
 with, or within the time limited by, its franchise, or other- 
 wise failed to comply with the obligations imposed upon it, 
 cannot be raised in a suit to enjoin its operation by a private 
 individual or another company, unless special or peculiar 
 injury to the plaintiff can be shown. Such questions con- 
 cern the public generally and not any particular individual, 
 unless he has suffered a particular injury, and can only be 
 raised by the State or city granting the franchise.^" Even 
 the municipality cannot complain that the grant of the right 
 
 60. Kitchell V. Manchester R. & 
 El. R. Co., 79 Mo. App. 340, 2 Mo. 
 App. Rep. 457; Black v. Brooklyn 
 Heights R. Co., 32 App. Div. (N. 
 Y.) 468, 53 N. Y. Supp. (87 St. 
 Rep.) 312; Meixell v. Northamp- 
 ton Cent. St. Ry. Co., 7 North. 
 Co. R. (Pa. Orph. Ct.) 274; 
 Nichols V. Ann Arbor, etc., Ky. 
 Co., 87 Mich. 361, 49 N. W. 538; 
 Re N. Y. Elev. Ry. Co., 70 N. Y. 
 327; Attorney-General v. Fagan, 
 22 La. Ann. 545; North v. Pate, 
 170 N. Y. 356; Quinn v. Shields, 62 
 Iowa, 129, 17 N. W. 437; Chicago 
 Gen. Ry. Co. v. Chicago City Ry. 
 Co., 87 111. App. 17; affd., 57 N. 
 E. 822; Linden Land Co. v. Mil- 
 waukee, etc., Co. (Wis.), 83 N. W. 
 851; New Orleans City & L. R. 
 Co. V. New Orleans, 44 La. Ann. 
 748, so Am. & Eng. R. Cas. 391, 
 II So. 77; Junction Pass. Ry. Co. 
 V. Williamsport Pass. Ry. Co., 154 
 Pa. St. 116, 32 W. N. C. 152, 26 
 Atl. 295; Cairo & Vincennes R. 
 Co. V. People, 92 111. 170. 
 
 An abutting owner who has no 
 right in the fee of a street has 
 nevertheless sufficient interest to 
 
 8 
 
 restrain, by injunction, the con- 
 struction in the street of a trolley 
 railroad where the consents of 
 half the property in value bounded 
 on the proposed line has not been 
 secured. Merriman v. Utica Belt 
 Line St. R. Co., 18 Misc. Rep. 
 (N. Y.) 269, 41 N. Y. Supp. 1049. 
 One who seeks to restrain the 
 building of a street railroad be- 
 cause necessary consents have not 
 been obtained has the burden of 
 proving the fact. O'Brien v. 
 Buffalo Trac. Co., 31 App. Div. 
 (N. Y.) 632, 52 N. Y. Supp. (86 
 St. Rep.) 322. An exclusive right 
 in a street railroad company to 
 operate its line in a city is such 
 a property right as will entitle it 
 to raise by injunction the ques- 
 tion of forfeiture by a failure to 
 perform the conditions of the 
 charter of another company which 
 has been granted the right to 
 build a street railroad in certain 
 streets of the same city. Wil- 
 mington City Ry. Co. v. Wilming- 
 ton & B. S. Ry. Co. (Del. Ch.), 
 46 At!. 12. And see McClean v. 
 Westchester El. R. Co., 25 Misc. 
 
114 STREET SURFACE RAILROADS. 
 
 to lay the tracks in certain streets is invalid because of the 
 failure to secure the consent of property-owners.*' 
 
 § 15. Conflicting grants or franchises. — While a common 
 council cannot properly so multiply street railroad tracks in 
 a particular street as to interfere with the rights of the public 
 therein/^ yet the policy, and generally the express provision, 
 of the law in every State prohibits the grant of an exclusive 
 right to any one corporation to construct and operate a street 
 railroad in any street. If on the face of any charter or ordi- 
 nance an exclusive right be granted, it will be controlled by 
 the power reserved in the legislature or in the municipal 
 council to alter, amende or repeal it, and where such exclusive 
 right has been revoked by the legislature the company can- 
 not object that the city gave consent to another company to 
 use the streets.*^ The city cannot be estopped unless the 
 former consent has been so acted upon by the first company 
 
 Rep. (N. Y.) 383; Denver & S. ville (C. C. E. D. Tenn.), 70 Fed. 
 
 Ry. Co. V. Denver City R. Co., 2 729. 
 
 Colo. 673. 63. Birmingham, etc., St." Ry. 
 
 61. Hamilton, Jones v. C. & H. Co. v. Ry. Co., 79 Ala. 465; Hen- 
 St. El. R. Co., 5 Ohio N. P. 457. derson v. Ogden City Ry. Co. 
 
 62. St. Ry. Co. of Grand Rapids (Utah), 26 .Pac. 286, 46 Am. & 
 V. W. S. St. Ry. Co., 48 Mich. Eng. R. Cas. 95; Canal & Clai- 
 433. 12 N. W. 643; Wood v. City of borne St. Ry. Co. v. Crescent 
 Seattle (Wash.), 62 Pac. 135; West City R. Co., 41 La. Ann. 561, 40 
 Jersey Traction Co. v. Camden Am. & Eng. R. Cas. 329, 6 So. 
 H. R. Co., 53 N. J. Eq. (8 Dick.) 849; Fort Worth St. Ry. Co. v. 
 163, 35 Atl. 49. A street railroad Rosedale St. Ry. Co., 68 Tex. 169, 
 company acquires no exclusive 4 S. W. 534; Cincinnati St. R. Co. 
 right to city streets, although its v. Smith, 29 Ohio St. 291; New 
 charter gives it a right to extend Orleans City R. Co. v. Crescent 
 its system to any street then or City R. Co., i2 Fed. 308; Des 
 thereafter to be laid out. As be- Moines St. R. Co. v. Des Moines 
 tween it and a rival company its Broadgauge St. R. Co., 73 Iowa, 
 right to operate in any street 513, 33 N. W. 610, 32 Am. & Eng. 
 thereafter laid out depends upon R. Cas. 209; Indianapolis Cable St. 
 prior occupancy. Africa v. Knox- R. Co. v. Citizens' St. R. Co., 127 
 
CONFLICTING FRANCHISES. 
 
 "5 
 
 as to cause substantial loss if it be recalled.** So, under the 
 power reserved by an ordinance to order the construction 
 of any new line of street railroad, or the extension of any 
 present or future lines of railroad, upon any or all streets of 
 the city upon which sewers have been constructed, the com- 
 mon council may order the extension of the street car service 
 of one line to and into the business or central part of the city 
 over streets or parts of streets on which there is an existing 
 track on which the cars of another line are already operated.^^ 
 But the grant to operate a street railroad in a particular 
 street prevents the common council from authorizing any 
 other company to use such street in any way destroying, 
 hindering, or embarrassing the use under the former fran- 
 chise.** An ordinance granting exclusive right to operate 
 
 Ind. 369, 43 Am. & Eng. R. Cas. 
 234, 24 N. E. 1054; Milhau v. 
 Sharp, 17 Barb. (N. Y.) 435, 28 
 id. 228; affd., 27 N. Y. 611, 84 Am. 
 Dec. 314. 
 
 64. Wilmington City R. Co. v. 
 People's R. Co. (Del. Ch.), 47 Atl. 
 245. Where an exclusive franchise 
 has been granted to one corpora- 
 tion, an act giving another the 
 right to construct railroad lines in 
 the same street impliedly revokes 
 such exclusive privilege under the 
 power reserved to the legislature 
 by the Constitution. Wilmington. 
 City Ry. Co. v. Wilmington, etc., 
 Ry. Co., 46 Atl. 12. And see 
 State v. Railway Co., 78 Minn. 331. 
 
 65. State v. St. Paul City Ry. 
 Co. (Minn.), 81 N. W. 200. And 
 see Birmingham Traction Co. v. 
 Tel. Co., 7 Am. Electl. Cas. 405, 
 119 Ala. 144, 24 So. 731- Under 
 an ordinance granting the right 
 to use the tracks of another com- 
 pany upon such terms and condi- 
 
 tions, by lease or contract, as may 
 be agreed upon between the com- 
 panies, or otherwise, a street rail- 
 road company cannot use the 
 tracks of the other company in 
 absence of either lease, contract, 
 invitation, acquiescence, or estop- 
 pel and in opposition to the will of 
 the owner of the track. Chicago 
 Gen. R. Co. v. Chicago City R. 
 Co., 62 111. App. 502. One street 
 railroad company cannot oust an- 
 other company from the privilege 
 of operating a railroad upon a 
 street which the former company 
 has permission from the munici- 
 pality to occupy with its line, where 
 its charter does not authorize it 
 to lay its tracks upon such streets; 
 nor can it recover damages. Den- 
 nison & S. R. Co. v. Dennison, 
 etc., Co., II Tex. Civ. App. 137, 
 32 S. W. 332. And see People v. 
 Kerr, 27 N. Y. 190. 
 
 66. City Ry. Co. v. Citizens' St. 
 Ry. Co., 166 U. S. SS7. 41 L. Ed.. 
 
Il6 STREET SURFACE RAILROADS. 
 
 Street railroads by animal power only for thirty years does 
 not deprive the municipality of the right to confer upon an- 
 other company authority to operate railroads otherwise than 
 by animal power. *^ And having granted to one company 
 the exclusive right to use the city streets it is not thereby 
 precluded from permitting another company to occupy those 
 streets not already used by the first company.** In a con- 
 test between two electric street railroad companies, to each 
 of which a city has granted the right to construct its line 
 along certain streets, the court cannot determine whether 
 one has forfeited its charter right to construct and operate 
 its road; in the first instance, that is a matter for the de- 
 termination of the city council.*' Where the ordinance pre- 
 scribes that a street railroad company to whom a right to 
 construct and operate a railroad is granted should permit 
 another company to use its tracks upon payment of a reason- 
 able compensation, the latter company cannot be enjoined 
 from such use on the ground that the compensation pre- 
 scribed by the common council and tendered was inadequate, 
 
 1 1 14; Fidelity Trust & S. V. Co. railroad purposes had refused to 
 
 V. Mobile St. R. Co. (C. C. S. D. build an additional road lawfully 
 
 Ala.), S3 Fed. 687. And see Ger- required by the common council, 
 
 mantown Pass. R. Co. v. Citizens' it is discretionary with the council 
 
 Pass. R. Co., 151 Pa. St. 138, 24 to make such changes in the pro- 
 
 Atl. 1103, 31 W. N. C. 281. posed route as to adapt it to form 
 
 67. Teachout v. Des Moines B. a junction with the road of some 
 R. Co., 75 Iowa, 732, 38 N. W. company that will build it, even 
 145. though in so doing a street in 
 
 68. Citizens' St. Ry. Co. v. Rose- which the former company had 
 dale St. Ry. Co., 68 Tex. 169; had exclusive rights is used as a 
 Gulf City St. Ry. Co. v. Galveston connecting link. St. R. Co. v. 
 St. Ry. Co., 6s id. 502 ; Coving- West End St. R. Co., 48 Mich, 
 ton St. Ry. Co. v. Covington, etc., 433, 12 N. W. 643. 
 
 Ry. Co., I Ky. L. R. 318; Jack- 69. Hamilton St., etc., Co. v. 
 
 son, etc., R. Co. v. Inter-State R. Hamihon & L. E. T. Co., 5 Ohio 
 
 T. Co., 24 Fed. 306. Where a C. C. 319. 
 •corporation using city streets for 
 
DISPOSING OF FRANCHISE. II7- 
 
 without very clear proof of such inadequacy.'" A street 
 railroad having constructed its road in a street in New York 
 city has a right, under the New York Railroad Law, to 
 exclude another company from constructing a road there, 
 and upon showing any special injury and damage to it, it 
 may restrain, as a public nuisance, the unauthorized con- 
 struction of such other road.'' 
 
 § 16. Sale or lease of franchise and property. — The franchise 
 to be a corporation merely cannot be transferred by any 
 corporate body of its own will. Such a franchise is not, in 
 its own nature, transmissible.'^ To be the subject of sale 
 and transfer, the law, by some positive provision, must make 
 it so, and point out the modes in which such sale and transfer 
 may be effected. '^ Unless specially authorized by its charter, 
 or aided by some other legislative action, a railroad com- 
 pany cannot, by lease or any other contract, turn over to 
 another company, for a long period of time, its road and all 
 its appurtenances, the use of its franchise, and the exercise 
 of its powers; nor can any other railroad company, without 
 similar authority, make a contract to receive and operate 
 such road, franchises, and property of the first corporation, 
 and such a contract is not among the ordinary powers of a 
 railroad company, and is not to be presumed from the usual 
 grant of powers in a railroad charter. '* The mere fact that 
 
 70. Kinsman St. R. Co. v. 1 Brunner Col. Cas. 613; Mem- 
 Broadway, etc., R. Co., 36 Ohio phis v. Berry, 112 U. S. 604, 607, 
 St. 239. 28 L. Ed. 837, 841. 
 
 71. Central Crosstown R. Co. v. 74- Pa- R- Co. v. St. Louis 
 Met. St. R. Co., 16 App. Div. (N. A. T. & H. R. Co., 118 U. S. 
 Y.) 229. 290, 309, 30 L- Ed. 83, 92; Ore- 
 
 72. Com. V. Smith, 10 Allen gon Ry., etc., Co. v. Oregonian 
 (Mass.), 448, 4SS- Ry- Co., 130 U. S. i, 32 L. Ed. 
 
 73. Hall V. Sullivan R. Co., 21 837; Rafferty v. Central Trac. Co. 
 L. R. 138, 2 Redfield R. Cas. 621, (Pa. C. P.), 22 Pittsb. L. J. (N. S.) 
 
Il8 STREET SURFACE RAILROADS. 
 
 the charter authorizes contracts with other companies for 
 transportation of goods and passengers does not authorize 
 the sale or lease of the entire road and franchises/^ And the 
 incidental use in the charter, or in some applicable legis- 
 lative act, of the words " lessees," " successors," or " assigns," 
 does not show a legislative intent to grant such powers/* 
 In New York, and in many other States, the statutes ex- 
 pressly provide for the lease of the corporate franchises and 
 property by one street surface railroad corporation to an- 
 other for any term of years agreed upon, without any pro- 
 hibition as to parallel or competing lines. The sale of all 
 franchises and property is also expressly permitted in some 
 cases ;''^ but a lease or sale of such franchise and property 
 (except of course the transfer of such property as will not 
 liinder the corporation in the performance of all its duties 
 to the public) cannot be made to a private individual.'^ 
 
 15. But see Smith v. Reading grant that it be held for public 
 
 Pass. R. Co. (Pa. C. P.), 2 Pa. benefit. State, Bridgeton v. 
 
 Dist. 490; aflfd. on other grounds, Bridgeton, etc., Co., 62 N. J. L. 
 
 156 Pa. St. s, 26 Atl. 779. Where 592, 45 L. R. A. 837, 43 Atl. 715. 
 
 the statute forbids a street rail- 75. Thomas v. Railroad Co., loi 
 
 road company to sell or lease its U. S. (11 Otto) 71, 25 L. Ed. 950. 
 
 road, it has no right to refuse to 76. Thomas v. Railroad Co., loi 
 
 accept a portion of its line from U. S. (11 Otto) 71, 25 L. Ed. 950; 
 
 a construction company, and, un- Oregon Ry., etc., Co. v. Oregon- 
 
 der pretense of selling the ma- ian Ry. Co., 130 U. S. i, 32 L. 
 
 terial, abandon its line and turn Ed. 837. 
 
 over the entire property to a rival yj. The New York Railroad 
 
 company. Clemmens El. Mfg. Co. Law, chap. 565 of 1890, art. Ill; 
 
 V. Walton, 173 Mass. 286, 52 N. E. 3 Heydecker's Gen. Laws (2d ed.), 
 
 132, S3 id. 820. Nor having ac- 3296-330S. And see Wright v. 
 
 cepted a franchise and laid its road Milwaukee El. & R. L. Co., 95 
 
 in the streets in accordance there- Wis. 29, 36 L. R. A. 47, 69 N. W. 
 
 with can it arbitrarily discontinue 791 ; People, Warfield v. Sutter St. 
 
 the operation of any part of such R. Co., 117 Cal. 604, 49 Pac. 736. 
 
 road to the detriment of the city 78. Abbott v. Johnstown, etc., 
 
 and its inhabitants, since an im- R. Co., 80 N. Y. 27. 
 plied condition attaches to the 
 
DISPOSING OF FRANCHISE. II9 
 
 When a lease is effected to an individual the law seems to 
 treat the lessee as the agent of the railroad company for the 
 purpose of determining controversies between the public and 
 such company.''^ Where a corporation, like a railroad com- 
 pany, has granted to it by charter a franchise intended in 
 large measure to be exercised for the public good, the due 
 performance of those functions being the consideration of 
 the public grant, any contract which disables the corporation 
 from performing those functions, which undertakes, without 
 the consent of the State, to transfer to others the rights and 
 powers conferred by the charter, and to relieve the grantees 
 of the burden which it imposed, is a violation of the con- 
 tract with the State, and is void as against public policy.*" 
 A contract not within the scope of the powers conferred on 
 the corporation cannot be made valid by the assent of every 
 one of the shareholders, nor can it, by any partial perform- 
 ance, become the foundation of a right of action.*' The 
 United States Supreme Court has held that leases made 
 without legislative sanction, and therefore void, cannot be 
 enforced, even as to past-due rent, although the lessees were 
 and still remain in undisturbed possession of the demised 
 
 79. Durfee v. Johnstown, etc., Ohio St. 372; Middlesex R. Co. v. 
 R. Co., 71 Hun (N. Y.), 279, 281, Boston, etc., R. Co., 115 Mass. 347; 
 54 St. Rep. (N. Y.) 526, 24 N. Y. Rollins v. Clay, 33 Me. 132; Fiet- 
 Supp. 1016; Fisher v. M. E. R. sam v. Hay, 122 111. 293. 
 
 Co., 34 Hun, 433; Woodruff v. 81. Thomas v. Railroad Co., 
 
 The Erie Ry. Co., 25 Hun (N. Y.), supra; Oregon, etc., Ry. Case, 
 
 246. supra; Ashbury, etc., Ry. Co. v. 
 
 80. Thomas v. Ry. Co., supra; Riche, L. R. 7 H. L. 653; East 
 Railroad Co. v. Winans, 58 U. S. Anglian Ry. Co. v. Eastern Co, 
 (17 How.) 30, IS L. Ed. 27; Black Ry. Co., 11 C. B. 775; Winch v. 
 V. Canal Co., 22 N. J. Eq. (7 C. E. Birkenhead, etc., Co., 13 Eng. L. 
 Green) 130; Beman v. Rufford, 1 & Eq. 506; Green Bay, etc., Co. 
 Sim. (N. S.) sso; Winch v. Rail- v. N. Y. Steamboat Co., 107 U. S. 
 road Co., 13 L. & Eq. 506; Coe 98, 27 L. Ed. 413. 
 
 V. Columbus, etc., R. Co., 10 
 
I20 STREET SURFACE RAILROADS. 
 
 \ 
 
 property. ^^ Its position upon the subject is, that a contract 
 made by a corporation, which is unlawful and void because 
 beyond the scope of its corporate powers, does not, by being 
 carried into execution, become lawful and valid, and that the 
 proper remedy of the party aggrieved is to disaffirm the con- 
 tract and sue to recover, as on a quantum meruit, the value 
 of what the defendant has had of actual benefit.*^ The New 
 York Court of Appeals has held that such an unauthorized 
 lease, void as to the public, will be upheld, as between the 
 parties, to the extent that so long as the occupation under 
 the lease continued the lessee was bound to pay the rent, and 
 its recovery might be enforced by action on the covenant.®* 
 Assuming now the statutory authority to dispose of it, a 
 right of way upon a public street, whether granted by act of 
 the legislature, ordinance of city council, or in any other 
 valid mode, is an easement, and as such is a property right 
 capable of assignment, sale, lease, and mortgage, and en- 
 titled to the protection afforded other property rights and 
 contracts.*' Where the lease is authorized by statute, it may 
 be made by the board of directors of the lessor; and the con- 
 currence of the stockholders is not essential to its validity.** 
 
 82. Pa. R. Co. V. St. Louis, etc., S. 348, 360, 27 L. Ed. 378; Salt 
 R. Co., 118 U. S. 290, 30 L. Ed. Lake City v. Hollister, 118 U. S. 
 83; Oregon Ry., etc., Co. v. Ore- 256, 263, 30 L. Ed. 176. 
 
 gonian Ry. Co., 130 U. S. i, 32 L. 84. Bath Gas Light Co. v. Claffy, 
 
 Ed. 837; St. Louis, etc., R. Co. v. 151 N. Y. 24, 36, 45 N. E. 390. 
 
 Terre Haute R. Co., 145 U. S. 393, 85. Knoxville v. Africa (C. C. E. 
 
 3 L. Ed. 748. D. Tenn.), 70 Fed. 729; Wilkes- 
 
 83. Bath Gas Light Co. v. Clafify, Barre v. Coalville Pass. Ry. Co. 
 151 N. Y. 24, 44, per Vann, J., 45 (Pa. C. P.), 8 Kulp, 298; Bards- 
 N. E. 390; Pittsburgh, etc., R. Co. town & Louisville R. Co. v. Met- 
 V. Keokuk, etc., Co., 131 U. S. calf, 4 Mete. (Ky.) 199; New 
 371, 389, 33 L. Ed. 157; Louisiana Orleans, etc., R. Co. v. Delamore, 
 V. Wood, 102 U. S. 294, 26 L. Ed. 114 U. S. 501, 29 L. Ed. 244. 
 
 153; Parkersburgh v. Brown, 106 86. Beveridge v. N. Y. E. R.. 
 
 U. S. 487, S03, 27 L. Ed. 238; Co., 112 N. Y. i, 19 N. E. 4S9. 
 Chapman v. Douglas Co., 107 U. 
 
DISPOSING OF FRANCHISE. 121 
 
 An assignee or lessee of a street railroad company which 
 accepts the transfer of all the franchises, powers, privileges, 
 and immunities of the grantor and its line of road, and 
 operates it for a time, thereby assumes the performance of 
 the duties theretofore resting on its grantor, such as pro- 
 viding a stated car service required by the ordinance by 
 which the right to construct the road is granted.^' A street 
 railroad company, by law forbidden to use the electric 
 trolley system, can confer upon its lessee no greater right 
 than itself has. And a resolution of a county board author- 
 izing such lessee company to use " any mechanical power 
 except steam," must be construed as meaning any power 
 which the company could legally use, and so not to warrant 
 the use of the trolley system.^^ An ordinance authorizing 
 the use of the trolley system by the lessor company confers 
 such authority upon the lessee in exclusive control of the 
 road, although not named in the ordinance.*' The pro- 
 vision of a statute for the sale on execution of the property 
 and franchises of corporations authorized to receive " toll " 
 applies to street railway companies.'" An action by a stock- 
 holder of a street railroad corporation, upon a claim that he 
 
 87. Potwin Place v. Topeka R. holders, 4 Am. Electl. Cas. 48, 56 
 Co. (Kan.), 33 Pac. 309; Reeves N. J. L. 416. 
 
 V. Philadelphia Trac. Co., 152 Pa. 89. Reeves v. Traction Co., 4 
 
 St. IS3, 31 W. N. C. 26s, 32 Am. Am. Electl. Cas. 24, 152 Pa. St. 
 
 L. Reg. 127, 25 Atl. 516; Wallace 153. 
 
 V. Ann Arbor El. Ry. Co. (Mich.), 90. McKee v. Grand Rapids, 
 
 80 N. W. 572; State, Bridgeton v. etc., St. Ry. Co., 41 Mich. 274, i 
 
 Bridgeton, etc., Co., 62 N. J. L. N. W. 873, 5o id. 469- I" the 
 
 592, 45 L. R. A. 837, 43 Atl. 71s; case cited, the court said: "Tolls, 
 
 P. P. & C. I. R. Co. V. C. I. B. at common law, include a large 
 
 R. Co., 144 N. Y. 152, 26 L. R. A. class of dues and exactions that 
 
 610, 63 St. Rep. (N. Y.) 48, I Am. are in the nature of fixed rights 
 
 & Eng. R. Cas. (N. S.) 222, 39 and cannot be lawfully exacted, 
 
 N. E. 17. aitl are generally, if not univer- 
 
 88. State, Lewis, Pros. v. Free- sally, connected with some fran- 
 
122 STREET SURFACE RAILROADS. 
 
 has been defrauded of a portion of his interest in the cor- 
 porate assets by means of a lease made by the directors and 
 approved by the vote of the required number of stockholders, 
 and in which he seeks to set aside the lease, compel the 
 transfer of all the property covered by the lease, and to re- 
 quire the lessee to account to the lessor for all moneys 
 received from the operation of the road, is not for the benefit 
 of the plaintifif alone, but is representative in character and 
 for the benefit of the plaintifif and all other stockholders 
 similarly situated. Therefore a demand upon the corpora- 
 tion lessor to sue must be made, and an averment of such 
 demand in the complaint, and of the refusal or unreasonable- 
 neglect to comply therewith, is essential to the maintenance 
 of the action.9' The New York Rapid Transit Acts do not 
 contemplate or permit a lease in perpetuity.'^ 
 
 § 17. Abandonment or revocation of francMse. — While the 
 municipality cannot by contract with the railroad company 
 divest itself of its control over streets and of its right and 
 duty to adopt ordinances and measures in the nature of 
 police regulations, it cannot, without an express reservation 
 to that efifect, in the ordinance granting the right to con- 
 struct and operate a street railroad which the company has 
 accepted as its franchise, impose additional obligations or 
 materially change its provisions in any respect against the 
 will of the company. It cannot recall or revoke the accepted 
 franchise after the grantee has in good faith begun to exer- 
 cise its powers and perform its duties thereunder.'^ But, if 
 
 chise which involves duties as Co., 158 N. Y. 493, 53 N. E. 
 
 well as privileges of a general or 520. 
 
 public nature, such as those which 92. Sun Printing and Pub. Co. v. 
 
 belong to street railroads, fairs. Mayor, 152 N. Y. 257, 46 N. E. 499. 
 
 turnpikes and ferries." 93. People v. Chicago W. Div. 
 
 91. Flynn v. Brooklyn City R. R. Co., 118 111. 113, 7 N. E. 116; 
 
abandonment; revocation. 
 
 1 23. 
 
 the company does not comply with the condition imposed by 
 the consent of the local authorities, its franchise may be re- 
 voked; and such revocation will deprive the company of 
 authority to build the road.s-t If the failure to perform the 
 condition is caused by injunction or interference of the police 
 officers acting under the direction of the mayor, the license 
 or franchise is not revoked." An easement granted for a 
 particular purpose ceases when its use for such purpose is 
 or becomes impossible under the terms of the grant.'* 
 Under a statute providing that all legislative power of the 
 city shall be vested in a mayor and city council, the city has 
 
 El. Ry. Co. V. Grand Rapids, 84 
 Mich. 257, 47 N. W. 567; Lavis 
 V. Newton (C. C. S. D. Iowa), 
 75 Fed. 884; Workmen v. So. Pac. 
 R. Co., 62 Pac. 18s, 316; Western 
 Pav. & Sup. Co. V. Citizens' St. 
 Ry. Co., 128 Ind. 525, 26 N. E. 
 188, ID L. R. A. 770. Where the 
 franchise of a street railroad com- 
 pany is granted by the State, it 
 can be abandoned only in the 
 same way as any other corporate 
 franchise granted by the State. 
 Africa v. Knoxville (C. C. E. D. 
 Tenn.), 70 Fed. 729. 
 
 94. Plymouth Tp. v. Chestnut 
 Hill & N. R. Co., 168 Pa. St. 
 181, 32 Atl. 19, 36 W. N. C. 317- 
 
 95. Chicago V. Chicago, etc., R. 
 Co., IDS 111. 73. And see Scran- 
 ton Ry. Co. V. City of Scranton 
 (Pa. C. P.), 5 Lack. Leg. N. (Pa.) 
 250. 
 
 96. As, where an easement to 
 lay and maintain a railroad track 
 in a street is granted by a city on 
 condition that animal power only 
 should be used to move the cars 
 thereon, and because of the grade 
 
 of the street use of animal power 
 for the purpose intended was im- 
 practicable, the easement is there- 
 fore at an end, and the city may 
 require the track to be removed. 
 So. Ry. Co. V. Memphis (Tenn.), 
 gy Fed. 819, 38 C. C. A. 498; de- 
 cree modified (1889), 99 Fed. 170, 
 39 C. C. A. 4SI. 
 
 An agreement by the city to per- 
 mit a street railroad company to 
 lay its tracks in specified streets 
 will not be specifically enforced 
 after the lapse of more than ten 
 years from the revocation of the 
 ordinance granting the permis- 
 sion, where the city had doubled 
 its population and many other 
 changes had been made rendering 
 the performance of such contract 
 detrimental to the public. See St. 
 Louis, etc., R. Co. v. St. Louis, 
 81 111. App. 109. 
 
 See as to revocation of consent 
 of property-owners under New 
 Jersey statute of April 21, 1896, 
 Hutchinson v. Borough of Bel- 
 mar, 61 N. J. L. 443, 39 Atl. 643; 
 afifd., 62 N. J. L. 450, 45 Atl. 1092. 
 
124 STREET SURFACE RAILROADS. 
 
 a right to accept the voluntary surrender of a street railroad 
 franchise.'"' But it cannot make a contract with the com- 
 pany to the efifect that nonuser of street railway tracks for a 
 specified time shall not operate as a forfeiture of the fran- 
 chise, since this would involve authority to grant the right to 
 use the streets for a private purpose. Entire failure to 
 operate a street railway for three years, when the ordinance 
 under which the franchise is exercised requires cars to run 
 ■sixteen hours every day in the year, constitutes a nonuser 
 which forfeits the franchise.'® 
 
 § 18. Expiration of franchise and renewal. — A franchise for 
 a term of years, unless renewed, terminates at the expiration 
 of the term, although the charter of the company declares 
 it to be " a body politic and corporate in perpetuity," where 
 the consent of the common council is made a condition pre- 
 cedent to the right to exercise the franchise.'' And by 
 consenting during the term to a large expenditure of money 
 upon the part of the railroad company (as by the substitution 
 •of electricity for animal power) the city is not estopped to 
 assert the expiration of the franchise.' Where the concur- 
 rent action of two city boards is necessary to the renewal 
 
 97. Wood V. Seattle (Wash.), 62 39 La. Ann. 709, 2 So. 388. In 
 Pac. 135. the case first cited, it was also 
 
 98. State, Kansas City v. East held that the fact that no litnita- 
 Fifth St. R. Co., 140 Mo. 539, 38 tion is imposed upon the duration 
 L. R. A. 218, 41 S. W. 955- of the corporate franchise of the 
 
 99. City R. Co. V. Citizens' St. railroad company does not make 
 R. Co., 52 N. E. IS7; Hannum v. the term for which it holds its 
 Media, etc., Co. (Pa. C. P.), 8 street grants likewise unlimited; 
 Del. Co. Rep. 91. and that a grant to use certain 
 
 I. Louisville Trust Co. v. Cin- streets disused for a period of over 
 
 cinnati (C. C. App. 6th C), 47 U. twenty years and a selection of 
 
 S. App. 36, 22 C. C. A. 334, 76 another route is an abandonment 
 
 Fed. 296, 73 id. 716; Canal, etc., of the franchise as to the streets 
 
 St. R. Co. V. City of New Orleans, not actually used. 
 
EXPIRATION OF FRANCHISE. 
 
 125. 
 
 of a street railroad grant, consent by one of them cannot be 
 effective as a renewal by implication/ If a grant is made for 
 a term exceeding the statutory limit it will be effective dur- 
 ing the period permitted by statute, and will then, unless 
 renewed, terminate by operation of law.^ The consent of the 
 abutting property-owners is not required for an extension 
 or renewal of the franchise.'* Whenever in the opinion of 
 the local authorities the pubHc would be benefited they may, 
 by agreement with the grantee, terminate a franchise 
 previous to its expiration or renew it for any period not in 
 excess of the statutory limit.s 
 
 2. Cincinnati Inc. Plane R. Co. 
 V. Cincinnati, 52 Ohio St. 609, 44 
 N. E. 327. 
 
 3. Sommers v. Cincinnati, 8 Am. 
 L. Rec. 612. 
 
 4. Clement v. Cincinnati, 16 W. 
 iL. B. 355; State, Hadden v. E. 
 
 Cleveland R. Co., 6 Ohio C. C. 
 318. 
 
 5. The City Ry. Co. v. Citizens' 
 St. R. Co., 166 U. S. 557, 41 L- 
 Ed. 1 1 14. In the case cited, the 
 court, per Mr. Justice Brown, said: 
 " The original ordinance of Janu- 
 ary 18, 1864, was plainly a proposi- 
 tion on the part of the city to 
 grant to the company the use of 
 its streets for thirty years, in con- 
 sideration that the company lay 
 its tracks and operate a railroad 
 thereon upon certain conditions 
 prescribed by the ordinance. This 
 proposition, when accepted by the 
 company, and the road built and 
 operated as specified, became a 
 contract which the State was not 
 at liberty to impair during its con- 
 tinuance; but if, at the expiration 
 of the thirty years, the road had 
 been sold to another company. 
 
 and that company had applied for 
 and obtained from the common 
 council a franchise to occupy its 
 streets for another period, it seems 
 to be clear that such a contract 
 would need no further consider- 
 ation to support it than the con- 
 tinued operation of the road under 
 such conditions as the city chose 
 to impose. But this is practically 
 such a case, since it makes no 
 diflference in principle whether the 
 road passes into the hands of a 
 new company or is retained by the 
 old one, or whether the extension 
 is granted at the time of or before 
 the original franchise expired. In 
 either case the consideration, viz., 
 the continued operation of the 
 road, is the same. If, instead of 
 extending the original ordinance, 
 this ordinance had been surren- 
 dered by the company, and a new 
 one had been enacted by which 
 the franchise was extended, it 
 would hardly be contended that 
 the continued operation of the 
 road would not be sufficient con- 
 sideration for the new ordinance."' 
 A railroad company was origi- 
 
126 
 
 STREET SURFACE RAILROADS. 
 
 § 19. Forfeiture; how waived. — The rights under a street 
 railroad franchise granted by a city cannot be forfeited, ex- 
 cept for the cause and in the mode prescribed in the fran- 
 chise, where the act authorizing the city to grant the 
 franchise makes no restriction.^ And where it is stipulated 
 in the franchise or license that upon breach of condition the 
 municipality may resume control of the streets, possession 
 thereof cannot be taken by force against the resistance of the 
 licensee.^ Proceedings must be had in a competent court 
 
 nally chartered for thirty years 
 only, and solely for the purpose 
 of building and using a horse rail- 
 road in the city of Augusta, with 
 the consent of the city council, 
 which consent it had obtained for 
 the thirty years. By an act con- 
 tinuing the charter it was expressly 
 provided that it should not have 
 the effect or be construed to ex- 
 tend or continue in force the 
 several amendments of the original 
 charter, or the ordinances and con- 
 tract by which the original con- 
 sent of the city was given. Held, 
 that the consent of the city must 
 be obtained for the renewal. 
 Augusta & S. R. Co. v. Augusta, 
 100 Ga. 701, 28 S. E. 126. 
 
 6. Dern v. Salt Lake City R. 
 Co., 19 Utah, 46, 56 Pac. SS6; Pot- 
 ter V. Collis, 156 N. Y. 16, so N. 
 E. 413, afifg. 19 App. Div. (N. Y.) 
 392. 
 
 A city in granting a franchise 
 to a street railroad to occupy its 
 streets may stipulate that it shall 
 be void if default is made in the 
 payment of the company's share 
 of street-paving improvement. 
 Union St. R. Co. v. Snow, 113 
 Mich. 694, 4 Det. Leg. N. 455, 71 
 N. W. 1073. 
 
 7. Iron Mt. R. Co. v. Memphis, 
 37 C. C. A. 410, 96 Fed. 113. A 
 municipality will be restrained 
 from adopting an ordinance 
 whereby it is sought to forfeit the 
 rights and franchises of a street 
 railroad company on the ground 
 that it has failed to operate a con- 
 tinuous line of road or run cars 
 as stipulated, where its failure is 
 due to its inability to obtain the 
 continuous right of way for which 
 it is diligently negotiating with 
 prospects of success. N. J. St. 
 Ry. Co. V. S. Orange Tp. (N. 
 J. Ch.), 43 Atl. S3. And see Noyes 
 V. Anderson, 124 N. Y. 175. But 
 on the repeal of an ordinance au- 
 thorizing the company to operate 
 a street railroad over certain 
 streets for a nominal considera- 
 tion within a week after its pas- 
 sage, if the company lie by for ten 
 years, during which time the city 
 doubles in population, extends its 
 streets, erects a public school 
 building abutting on the line of 
 the streets, and citizens build resi- 
 dences along the same, it cannot 
 restrain the city by action in 
 equity from preventing the build- 
 ing of the road. See St. Louis, 
 etc., Ry. Co. v. City of East St. 
 
forfeiture; how waived. 127 
 
 or before that officer or body authorized by law to determine 
 and declare the forfeiture.* Ordinarily, proceedings must be 
 taken on behalf of the State to establish and enforce the 
 forfeiture, and until the State thus intervenes, a private indi- 
 vidual cannot set up the forfeiture or in any way challenge 
 the corporate existence.^ Where the right to enforce the 
 forfeiture is purely statutory and the statute prescribes the 
 procedure therefor and the court to control it, the forfeiture 
 must be sought in such court and in the manner prescribed. 
 In New York the practice is prescribed in articles III and IV 
 of chapter 15, title 2 of the Civil Code;"° and the complaint 
 must show on its face corporate acts or omissions such as 
 not only put the company in the wrong, but such as were 
 either voluntary or negligent, and so material a disobedience 
 of the public will as within established rules to warrant a 
 judgment of dissolution." Failure of the railroad company 
 to complete a road in territory described in an unconstitu- 
 
 Louis, 102 111. 433, 55 N. E. 533; fault and forfeited its rights was 
 
 Easton, etc., Ry. Co. v. Easton, no answer or defense in proceed- 
 
 133 Pa. St. 50s ; Asheville St. Ry. ings on the part of the company 
 
 Co. V. Asheville, 109 N. C. 688, to acquire title to the lands for 
 
 14 S. E. 316; Young V. Magazine the purposes of its road. 
 
 St. R. Co., 24 La. Ann. 53. The removal of railroad tracks 
 
 8. Attorney-General v. Chicago, from a highway and the abandon- 
 €tc., R. Co., 112 111. 520; State, ment of the operation of the road 
 Attorney-General v. Madison St. operates merely as a cause of for- 
 Ry. Co., 72 Wis. 612, 40 N. W. 487; feiture of which the people alone 
 Reid v. Omnibus R. Co., 33 Cal. can take advantage, and does not 
 212; Matter of Brooklyn El. R. of itself forfeit the franchise over 
 Co., 125 N. Y. 434, 26 N. E. 474; the road so as to prevent the re- 
 Matter of Kings Co. El. R. Co.,. laying of the tracks. Grelford v. 
 105 N. Y. 97, 13 N. E. 18; Wil- C. I. & B. R. Co., 6 App. Div. 
 mington City Ry. Co. v. Wilming- (N. Y.) 204, 40 N. Y. Supp. 1150. 
 ton, etc., Ry. Co. (Del. Ch.), 46 10. See §§ 1784-1803. 
 
 Atl. 12. II- People v. A. A. R. Co., 
 
 9. Matter of B. E. R. Co., 125 i25 N. Y. 513, 26 N. E. 622. In 
 N. Y. 434, 26 N. E. 474. In the the case cited, nonuser for five 
 case cited, it was held that the fact days was charged. The Civil 
 that the company had made de- Code, § 1785, prescribed a sus- 
 
128 STREET SURFACE RAILROADS. 
 
 tional section of its charter is not a cause of forfeiture.'* 
 And as a general rule a forfeiture for nonuser or for misuser, 
 temporary in its character, although continuing for a number 
 of years, will not be adjudged against a street railroad com- 
 pany which has in good faith exercised a portion of the 
 powers and rights conferred upon it, and had been discharg- 
 ing some of its duties to the public. Thus, where the fran- 
 chise granted is conditioned upon the laying of double tracks 
 in certain streets, and the company for a series of years 
 operated but one therein, unless the circumstances show a 
 willful intent to disregard the company's obligation to the 
 public a forfeiture will not be declared therefor. '^ The breach 
 of any condition imposed by a municipality in granting a 
 franchise, or license, to a street railroad company to occupy 
 any street in the city, which might work a forfeiture of the 
 grantee's right, may be waived by the municipality.'* If 
 the condition broken be a subsequent one, that is, a con- 
 pension of its ordinary and law- St. Charles St. R. Co. v. Cock- 
 ful business for at least one year ran, 25 La. Ann. 356; Henderson 
 as a cause of forfeiture. The com- v. Central Pass. Ry. Co., 21 Fed. 
 plaint was held insufficient. And 358. But in the case last cited 
 see Wright v. Milhau El. R. & L. there was a nonuser for more than 
 Co., 95 Wis. 29, 36 L. R. A. 47, 69 ten years without the consent of 
 N. W. 791 ; Matter of C. I., F. H. & the State or local authorities, and 
 B. R. Co. V. Kennedy, 15 App. it was held that such nonuser was 
 Div. (N. Y.) 588, 44 N. Y. Supp. sufficient evidence of abandon- 
 825. ment of the right in the streets 
 
 12. Bohmer v. Haflfen, 161 N. not used, although it appeared 
 Y. 390, 55 N. E. 1047. that the patronage along the 
 
 13. Hestonville, etc., Ry. Co. v. abandoned route was insufficient 
 Philadelphia, 89 Pa. St. 210; Ran- to recompense the company for 
 son V. Citizens' Ry. Co., 104 Mo. the outlay necessary to build, 
 375, 16 S. W. 415; People's Pass. equip, and operate the road. And 
 Ry. Co. V. Philadelphia, 14 Phila. see Gerard College Pass. R. Co. 
 231; Philadelphia, etc., R. Co. v. v. Thirteenth St., etc., Ry. Co., 7 
 Williams, 54 Pa. St. 103; City of Phila. 620. 
 
 Elmira v. Maple Avenue R. Co., 14. Chicago City Ry. Co. v. 
 
 4 N. Y. Supp. 942; State ex rel. People, 7z 111. 541. 
 
forfeiture; how waived. 
 
 129 
 
 dition which attaches only after a material part of the road 
 is constructed and operated, the municipality will be pre- 
 sumed to have waived the breach, unless it moves with 
 reasonable promptitude and before such expenditures have 
 been made by the railroad company as would make the 
 declaration of the forfeiture an inequitable act.'s A munic- 
 ipality however does not waive the forfeiture of the fran- 
 chise in the streets for nonperformance of conditions subse- 
 quent, by its simple failure to take any action to remove the 
 tracks after the breach of the condition, or take any pro- 
 ceedings to have the franchise declared forfeited, where the 
 circumstances show that the franchise is held, not for the 
 convenience of the public, but to prevent facilities for travel 
 and enforce patronage upon another line of the company.'* 
 In a proceeding to forfeit its charter the company may inter- 
 pose as a defense the fact that it was prevented from cen- 
 
 ts. New Orleans, etc., R. Co. v. 
 New Orleans, 44 La. Ann. 748, 
 II So. 7T. It should be remem- 
 bered however that considerations 
 of policy and justice both demand 
 that the duty of a street railroad 
 company, in regard to the proper 
 construction of its road, should 
 be rigidly enforced, particularly 
 where no compensation is paid to 
 the municipality or to the abutting 
 owners for the use of the street 
 by the company and where such use 
 impairs the free public use of a 
 street. See Fitts v. Cream City 
 R. Co., 59 Wis. 323, 15 Am. & 
 Eng. R. Cas. 462, 18 N. W. 186; 
 Birmingham Union R. Co. v. 
 Alexander, 93 Ala. 133, 9 So. 525; 
 Citizens' St. R. Co. v. Twiname, 
 III Ind. 587, 30 Am. & Eng. R. 
 Cas. 616, 13 N. E. ss. 
 
 9 
 
 16. People, Warfield v. Sutter 
 St. R. Co., 117 Cal. 604, 49 Pac. 
 736. In the case cited, it ap- 
 peared that a track in a thickly- 
 settled portion of the city had 
 been laid for more than six years, 
 and practically not operated ex- 
 cept by running one car over it 
 every day for the purpose of pre- 
 serving the franchise. It was held, 
 in an action for a judgment de- 
 claring the franchise forfeited be- 
 cause of failure to comply with the 
 conditions, that the city was not 
 estopped by laches, and that be- 
 cause it appeared the company 
 willfully ignored its duty to the 
 public and sought only its own 
 advantage, the court might, in de- 
 claring the forfeiture, impose the 
 maximum fine. 
 
130 STREET SURFACE RAILROADS. 
 
 structing its track by an injunction issued at the instance 
 of a third party, or in any other way it may show that its 
 neglect or omission to perform a duty imposed by the fran- 
 chise was not intentional and willful on its part;'' but it 
 cannot prevent the city from declaring its franchise to occtlpy 
 the streets forfeited under an option reserved by the ordi- 
 nance granting the franchise, in case of the company's de- 
 fault in the payment of paving expenses, upon the ground 
 of its insolvency and inability to pay such expenses.'* Where 
 a clause of a franchise granted provided that a street railroad 
 company should forfeit the " road " to the city in one year 
 after it ceases to operate it, a forfeiture includes the rails as 
 well as the franchise and may be judicially enforced; the 
 clause does not provide a penalty or liquidated damages.'' 
 
 § 20. When specific performance of contract for mutual co- 
 operation in securing franchise, will be refused. — A contract 
 between two persons for mutual co-operation in securing a 
 franchise for a street railway, and the equal division of what 
 may be realized from the enterprise, will not be enforced in 
 equity by decreeing that one of the persons who has been 
 excluded by the other from the benefit of the franchise, 
 which was granted to the latter by the city with a knowledge 
 of all the facts, shall have a one-half interest in the franchise, 
 property, and stock of the corporation to which the franchise 
 was granted, but he will be left to his remedy at law.^° 
 
 17. State, St. Charles St. R. owners. Commonwealth v. Mid- 
 Co. V. Cockran, 25 La Ann. 356. dletown El. R. Co., 2 Dauph. Co. 
 If a railroad company fail to com- Rep. 316, 23 Pa. Co. Ct. 262. 
 plete the construction of its way 18. Union City R. Co. v. Sag- 
 within the time limited by stat- inaw, 113 Mich. 694, 4 Det. Leg. 
 ute, its rights, privileges, and fran- N. 455, 71 N. W. 1073. 
 chises are forfeited, although it 19. Tower v. Tower & S. St. R. 
 liad been restrained from com- Co., 68 Minn. 500, 38 L. R. A. 
 pleting the road by injunction, on 541, 71 N. W. 691. 
 account of its failure to secure the 20. Hyer v. Richmond Traction 
 consent of the abutting property- Co., 168 U. S. 471, 42 L. Ed. 547. 
 
ACQUISITION. 131 
 
 CHAPTER III. 
 
 Acquisition; and herein of Eminent Domain; Rlglits of Abutting 
 Owners; Securing Use of Otiier Trades, Crossings, Bridges, Etc. 
 
 Section i. Unauthorized use of highway a nuisance. 
 
 2. Rights of public and abutting owners in streets. 
 
 3. Taking of abutting owners' property. 
 
 4. Remedies of abutting owners. 
 
 5. Eminent domain. 
 
 6. Proceedings to ascertain compensation. 
 
 7. Compensation. 
 
 8. Consolidation. 
 
 9. Use of tracks of other roads, and traffic arrangements. 
 
 10. Crossing other tracks. 
 
 11. Use of turnpikes, bridges, etc. 
 
 12. Motive power. 
 
 § 1. Unauthorized use of highway a nuisance. — The con- 
 struction or operation of a railroad in a public street or high- 
 way, without the consent of the " local authorities," is a 
 nuisance.'^ Redress against such a nuisance is had by in- 
 dictment,' by action instituted by the municipality, or 
 authorities having charge of the highway,^ or by proceedings 
 
 Yz. Burlington v. Pa. R. Co. Cartney v. Chicago, etc., R. Co., 
 
 (Ch.), 56 N. J. Eq. 2S9, 38 Atl. 849. 112 III. 611, 29 Am. & Eng. R. 
 
 1. Commonwealth v. Old Colony, Cas. 326; Hunt v. Chicago Horse, 
 etc., R. Co., 14 Gray (Mass.), 93; etc., R. Co., 121 111. 638, 13 N. E. 
 Pittsburgh, etc., R. Co. v. Common- 176; People v. Third Ave. R. Co., 
 wealth, loi Pa. St. 192, 10 Am. & 45 Barb. (N. Y.) 63. 
 
 Eng. R. Cas. 321; State v. Louis- If there is a variance from the 
 
 ville & N. R. Co., 91 Tenn. 445, charter route of an electric rail- 
 
 19 S. W. 229; Larimer, etc., Ry. way greater than is necessary, or 
 
 Co. V. Larimer St. Ry. Co., 137 the charter itself is open to ob- 
 
 Pa. St. 533; State v. Ohio River jection, the Commonwealth alone 
 
 R. Co., 38 W. Va. 242, 18 S. E. can raise the question, and not an 
 
 582, s6 Am. & Eng. R. Cas. 641. abutting owner who seeks to en- 
 
 2. Coast Line R. Co. v. Cohen, join the construction of the road. 
 50 Ga. 451; Stamford v. Stamford Minnick v. Lancaster, etc., R. Co. 
 Horse R. Co., 56 Conn. 381, 36 (Pa- C. P.), 24 Pa. Co. Rep. 312, 7 
 Am. & Eng. R. Gas. 140; Mc- North. Co. 305. 
 
132 
 
 STREET SURFACE RAILROADS. 
 
 at the instance of the attorney-general.^ An abutting owner, 
 having suffered material special damage, distinct in character 
 from that which the public suffers, and irreparable in char- 
 acter, can have the assistance of equity by injunction to 
 restrain the creation or maintenance of such a nuisance; or 
 he may maintain the ordinary action at law to abate the 
 same; damages may also be recovered.* But if permission 
 
 3. Attorney-General v. Lom- 
 bard, etc., Ry. Co., 10 Phila. (Pa.) 
 
 3S2. 
 
 4. Thomas v. Inter-Co. St. Ry. 
 Co., S Am. Electl. Cas. I7S> 167 
 Pa. St. 120; Gen. El. Ry. Co. v. 
 Chicago, etc., Co., 90 Fed. 907, 39 
 C. C. A. 345; Blesch v. Chicago, 
 etc., Ry. Co., 43 Wis. 183; Cain v. 
 Chicago, etc., R. Co., 54 Iowa, 
 255, 3 N. W. 736; Stange v. Hill, 
 etc., Ry. Co., 54 Iowa, 669, 7 N. 
 W. lis; Grand Rapids, etc., R. 
 Co. V. Heisel, 47 Mich. 393, ii 
 N. W. 212. 
 
 Injunction is the proper remedy 
 of an abutting owner to prevent 
 the construction of an electric 
 street railway until compensation 
 is made to him. If however the 
 road is already built without his 
 opposition and without compensa- 
 tion to him, the operation will not 
 be enjoined, but he will be rele- 
 gated to his action at law for dam- 
 ages. Pa. Ry. Co. V. Mont. Co. 
 Pass. Ry. Co., 5 Am. Electl. Cas. 
 166, 167 Pa. St. 62. 
 
 Where the city owns the fee of 
 the street for the public use, an 
 injunction will not be granted to 
 an abutting owner to restrain the 
 laying of a street railway, on the 
 ground that it will impair his ease- 
 ment of ingress and egress. He 
 has a remedy in damages. Has- 
 
 kell V. Denver Tramway Co. 
 (Colo. Sup. Ct.), 6 Am. Electl. 
 Cas. 151, note, 46 Pac. 121. 
 
 The owners of the fee simple of 
 land in a street may prosecute a 
 certiorari to test the legality of a 
 municipal ordinance purporting to 
 authorize a railway company to 
 place rails, poles, and wires on 
 their land in the street. State v. 
 Jersey City (N. J. Sup.), 5 Am. 
 Electl. Cas. 146. 
 
 An abutting property-owner is 
 not entitled to enjoin the con- 
 struction of a street railroad be- 
 cause his property would- be in- 
 juriously affected or damaged 
 thereby, or because the railroad 
 is not legally authorized. Gen- 
 eral El. Ry. Co. v. Chicago, etc., 
 Co., 184 111. 588, S6 N. E. 963. 
 
 Where an abutting owner upon 
 a street has given consent to the 
 construction of a railroad, such 
 consent, so far as his special prop- 
 erty right was affected, operates 
 to make the construction of the 
 road lawful as to him; and hence 
 he is not entitled to a permanent 
 injunction to restrain the con- 
 struction. Bellew V. N. Y., etc., 
 Co., 47 App. Div. (N. Y.) 447, 62 
 N. Y. Supp. 242. 
 
 A taxpayer, as such, cannot in- 
 stitute proceedings to declare void 
 a street railway grant because the 
 
ACQUISITION. 
 
 133 
 
 of the township authorities to build and operate the road 
 upon the highway has been obtained, the abutting owner 
 cannot maintain an action to prevent the building and opera- 
 tion of the railroad, because the required consent of prop- 
 erty-owners is lacking.5 If railroad tracks are unlawfully 
 laid in the street, the local authorities controlling the street 
 may remove them by force; nevertheless, the right so to do 
 does not constitute that adequate remedy at law which ex- 
 cludes equitable relief.* If a company has a franchise to lay 
 a railway to be operated by one motive power only, and con- 
 structs its road for the use of an entirely different power, the 
 local authorities cannot abate the road as a nuisance; but 
 they may compel the company to operate it by the author- 
 ized motive power.'' The term, " local authorities " with 
 
 necessary consents of abutting 
 owners have not been obtained, 
 but such action can be brought 
 only by an abutting owner. Glid- 
 den V. Cincinnati (Cin. Sup. Ct.), 
 4 Ohio Dec. 423. 
 
 Preliminary injunction to pre- 
 vent construction of electric street 
 railway on plaintiff's land will not 
 be permitted unless it clearly ap- 
 pears that the construction is to be 
 upon his land. Thouron v. Rail- 
 way Co. (Pa. Sup. Ct.), 6 Am. 
 Electl. Cas. 150. 
 
 5. Borden v. Atlantic, etc., El. 
 Ry. Co. (N. J. Ch.), 5 Am. Electl. 
 Cas. 179. Where a trolley com- 
 pany has not obtained the con- 
 sents required by statute to au- 
 thorize it to construct its road, an 
 abutting owner is not liable for 
 filling up a trench dug in a street 
 upon his premises. Wheeler v. 
 Pa. R. Co., 194 Pa. St. 539, 45 
 Atl. 338; People V. City of Utica, 
 45 App. Div. (N. Y.) 356, 61 N. 
 
 Y. Supp. 31. If an abutting 
 owner does not own the fee in the 
 street, although special damage 
 has resulted to him by the con- 
 struction of the railroad without 
 the necessary consents, it rests 
 within the discretion of the court 
 either to grant an immediate in- 
 junction in his suit therefor, or 
 to give the railroad company a 
 reasonable time within which to 
 obtain such consents. Black v. 
 Brooklyn, etc., R. Co., 32 App. 
 Div. (N. Y.) 468, S3 N. Y. Supp. 
 (87 St. Rep.) 312. 
 
 6. Stamford v. Stamford H. R. 
 Co., 56 Conn. 381, 36 Am. & Eng. 
 R. Cas. 140. If track is laid in 
 good faith, and without objection 
 from local authorities having full 
 knowledge, the act cannot be 
 classed among the nuisances to be 
 summarily abated. Easton, etc., 
 Ry. Co. V. Easton, 133 Pa. St. 
 
 SOS. 
 
 7. Spokane St. R. Co. v. Spo- 
 
134 STREET SURFACE RAILROADS. 
 
 whose consent street railroad companies are authorized to 
 construct a railroad along streets or highways, refers to the 
 officers of the city, town, or village, having control of the 
 highways generally within the municipality.* 
 
 § 2. Rights of public and abutting owners in streets. — Ordi- 
 narily, and in fact wherever land is taken for highway pur- 
 poses according to the course of the common law, the title 
 to the soil over which highways and streets are laid, remains 
 in the owner of the fee, subject only to the public easement.' 
 The right of the public in a highway consists in the privilege 
 of passage, and such privileges as are annexed as incidents 
 by usage or custom, as the right to make sewers and drains, 
 and lay gas and water pipes; the subordinate privileges are 
 entirely consistent with the primary use of the highway, and 
 are no detriment to the landowner." In deciding a recent 
 case in the New York Court of Appeals, Judge Haight, in 
 the prevailing opinion, said: "The primary object of high- 
 ways is for the public travel by persons and animals, and by 
 carriages or vehicles used for the transportation of persons 
 and goods, other than by railroads."" Substantially all the 
 courts of last resort in the United States, except the New 
 York Court of Appeals, include also the carriages and 
 vehicles used upon the ordinary street surface railroads 
 among the means of accomplishing the primary object of 
 
 kane Falls, 6 Wash. 521, 33 Pac. 33 L- R- A. 129, 4 Am. & Eng. R. 
 
 1072. Cas. (N. S.) 392, 34 Atl. 1091; 
 
 8. Re Rochester El. R. Co., 123 McCruden v. Rochester Ry. Co., 
 N. Y. 351, 46 Am. & Eng. R. Cas. 5 Misc. Rep. (N. Y.) 59. 
 
 157, 33 St. Rep. (N. Y.) 695, 25 la State v. Laverack, 5 Vroom 
 
 N. E. 381. (N. J.), 206. 
 
 9. State, Roebling v. Trenton 11. Palmer v. Larchmont El. 
 Pass. R. Co., 6 Am. Electl. Cas. Co., 158 N. Y. 231, 235, 52 N. E. 
 137, 58 N. J. L. (29 Vroom) 666, 1092. 
 
RIGHTS IN STREETS. 1 35 
 
 highways. And it is quite uniformly 'held that a railroad, 
 constructed and operated in the street of a city, so as not to 
 materially interfere with its common use for public travel 
 by ordinary modes, or with private rights of abutting land- 
 owners, for the purpose of ti-ansporting persons from place 
 to place upon such street at their reasonable convenience, 
 whatever the motive power may be, is not an additional 
 burden upon the fee thereof, and really promotes the primary 
 object of the highway. The ordinary electric street railway 
 with its trolley wire supported by cross-wires attached to 
 poles set near the outer edge of the sidewalks, with due 
 regard to the abutting property-oWners' convenience, is but 
 an improved method of using the street for public travel. 
 There is no limit to the public right to use a street, and every 
 part of it, so long as that use is in aid of public travel thereon 
 and does not interfere unnecessarily with the common use 
 of the way by ordinary modes of travel, and is no substantial 
 impairment of private rights of property. Compared with 
 a horse car, the electric car more certainly promotes the 
 primary object of the highway. It moves more rapidly, is 
 started and stopped with greater facility, and will more com- 
 fortably, and without obstructing the streets as much for 
 travel by other means, move the greater number of persons 
 the greater distance in a given time." Whether the like 
 
 12. La Crosse City R. Co. v. Electric St. R. Co. (C. C. E. D. 
 
 Higbee, 7 Am. Electl. Cas. 369, 107 Ark.), 41 Fed. 556, 7 Ry- & Corp. 
 
 Wis. 389, 51 L. R. A. 923, 929, 83 L. J. 448, 43 Am. & Eng. R. Cas. 
 
 N. W. 701. And see Briggs v. 21S; Nichols v. Ann Arbor & Y. 
 
 Lewiston & A. Horse R. Co., 79 St. R. Co., 87 Mich. 361, 16 L. 
 
 Me. 363, 10 Atl. 47; Taggart v. R. A. 371, 49 N. W. 538; Halsey 
 
 Newport St. R. Co., 16 R. I. 668, v. Rapid Transit St. R. Co., 47 
 
 7 L. R. A. 20s, 19 Ati. 326, 7 Ry- N. J. Eq. 380, 20 Atl. 859, 46 Am. 
 
 & Corp. L. J. 385, 43 Am. & Eng. & Eng. R. Cas. 76; Lockhart v. 
 
 R. Cas. 208; Williams v. City Craig St. R. Co., 3 Am. Electl. 
 
136 
 
 STREET SURFACE RAILROADS. 
 
 railroad, upon a country public road, imposes a servitude 
 in addition to that charged upon the lands by the original 
 
 Cas. 314, 139 Pa. St. 419, 21 Atl. 
 26, 9 Ry. & Corp. L. J. 183; Cin- 
 cinnati Inclined Plane R. Co. v. 
 City & Suburban Teleg. Assn., 48 
 Ohio St. 390, 12 L. R. A. 534, 27 
 N. E. 890; Louisville Bagging 
 Mfg. Co. V. Central Pass. R. Co., 
 4 Am. Electl. Cas. 202, 95 Ky. 50, 
 23 S. W. S92; Dean v. Ann Arbor 
 St. R. Co., 93 Mich. 330, S3 N. W. 
 396; Ogden City R. Co. v. Ogden 
 City, 7 Utah, 207, 26 Pac. 288; 
 Howe V. West End St. R. Co., 
 167 Mass. 46, 44 N. E. 386; Bir- 
 mingham Traction Co. v. Birming- 
 ham R. & Electric Co., 119 Ala. 
 137, 43 L. R- A. 233, 24 So. 502; 
 Chicago, B. & Q. R. Co. v. West 
 Chicago St. R. Co., 156 111. 255, 
 29 L. R. A. 48s, 40 N. E. 1008; 
 Cumberland Teleg. & Teleph. Co. 
 V. United Electric R. Co., 93 
 Tenn. 492, 27 L. R. A. 236, 29 S. 
 W. 104; Taylor v. Portsmouth, K. 
 & Y. St. R. Co., 91 Me. 193, 39 
 Atl. 560; Poole V. Falls Road El. 
 R. Co., 88 Md. 533, 41 Atl. 1069; 
 State, Roebling v. Trenton Pass. 
 R. Co., 6 Am. Electl. Cas. 137, 
 58 N. J. L. (29 Vroom) 666, 33 L. 
 R. A. 129, 4 Am. & Eng. R. Cas. 
 (N. S.) 392, 34 Atl. 1090; Canas- 
 tota Knife Co. v. Newington 
 Tramway Co., 69 Conn. 146, 36 
 Atl. 1 107; State, Jacksonville v. 
 Jacksonville St. R. Co. (Fla.), 10 
 So. 590; Koch V. North Ave. R. 
 Co. (Md.), 4 Am. Electl. Cas. 153, 
 15 L. R. A. 377, 23 Atl. 463; Heil- 
 man v. Lebanon & A. R. Co., 145 
 Pa. St. 23, 23 Atl. 389, I Pa. Adv. 
 Rep. 161; Schaaf v. Cleveland, M. 
 & S. El. R. Co., 16 Ohio C. C. 252, 
 
 8 O. C. D. 688; Sydney Munic. 
 Coun. V. Young (P. C. 1898), A. 
 C. 457, 78 L. T. Rep. 365, 67 L. 
 J. P. C. (N. S.) 40; Snyder 
 V. Fort Madison St. R. Co., 
 IDS Iowa, 284, 41 L. R. A. 345, 11 
 Am. & Eng. R. Cas. (N. S.) S3, 75 
 N. W. 179; Placke v. Union 
 Depot R. Co., 140 Mo. 634, 41 S. 
 W. 915; Patterson v. Pittston (Pa. 
 C. P.), 8 Kulp (Pa.), 530; Mer- 
 rick V. Intramontaine R. Co., 118 
 N. C. 1081, 24 S. E. 667; Lim- 
 burger v. San Antonio R. T. St. 
 R. Co. (Tex.), 30 S. W. 533; State, 
 Kennelly v. Jersey City (N. J. 
 Sup.), 5 Am. Electl. Cas. 146, 26 
 L. R. A. 281, 30 Atl. 531; West 
 Camden R. Co. v. Camden, etc., 
 R. Co. (N. J. Ch.), 29 Atl. 423; 
 People, Kunze v. Ft. Wayne & 
 E. R. Co., 92 Mich. S22, 16 L. R. 
 A. 752, 52 N. W. loio; Paterson 
 R. Co. V. Grundy (N. J. Ch.), 4 
 Am. Electl. Cas. 173, 26 Atl. 788; 
 Elfelt v. Stillwater St. R. Co. 
 (Minn.), S5 N. W. 116; Detroit 
 City R. Co. v. Mills, 85 Mich. 638, 
 48 N. W. 1007, 46 Am. & Eng. R. 
 Cas. 608, 10 Ry. & Corp. L. J. 
 104; Ransom v. Citizens' R. Co. 
 (Mo.), 16 S. W. 416; Van Home 
 v. Newark Pass. R. Co. (N. J.), 
 21 Atl. 1013, 14 N. J. L. J. 199, 33 
 Cent. L. J. 69, 10 Ry. & Corp. L. 
 J. 234; Finch V. Riverside & A. R. 
 Co., 87 Cal. 597, 9 Ry. & Corp. L. 
 J. 250, 46 Am. & Eng. R. Cas. 
 107, 25 Pac. 765; Newark Pass. 
 Co. V. Block, ss N. J. L. 605; 
 State, Kennelly v. Jersey City (N. 
 J.), 5 Am. Electl. Cas. 146; Green 
 V. Railway Co. (Md. Ct. App.), 4 
 
RIGHTS IN STREETS. 
 
 137 
 
 taking for a public highway, entitling the owner of the fee 
 to an additional compensation, appears yet to be an un- 
 
 Am. Electl. Cas. 206, 28 Atl. 626; 
 Simmons v. Toledo, 5 Am. Electl. 
 Cas. 152, 8 Ohio C. C. 535; Doane 
 V. Lake St. El. R. Co., 165 111. 
 Sio, 36 L. R. A. 97, 46 N. E. 520; 
 Southern Ry. Co. v. Atlanta, etc., 
 Ry. Co., Ill Ga. 679, 36 S. E. 873. 
 In the case last cited, it was held 
 that expressly restricting a rail- 
 road company to the use of elec- 
 tricity as a motive power, when 
 its charter authorized it to use 
 steam also, did not add to the 
 servitude imposed on the street. 
 And see General El. Ry. Co. v. 
 Chicago, etc., R. Co., 184 111. 588, 
 56 N. E. 963. 
 
 An abutting owner suffering 
 special damage may, under the 
 Illinois Const. 1870, art. II, § 13, 
 providing that private property 
 shall not be taken or damaged for 
 public use without compensation, 
 recover, although an elevated rail- 
 road built in the street for the 
 transportation of passengers from 
 place to place, is not an additional 
 servitude thereon. Chicago Of- 
 fice Bldg. v. Lake St. El. Ry., 87 
 111. App. 594. 
 
 Laying an electric street-car 
 track on a turnpike within about 
 seven feet of a building does not 
 entitle the abutting owner to com- 
 pensation, although it prevents 
 teams from standing, as formerly, 
 in front of his place of business. 
 Ashland & C. St. R. Co. v. Faulk- 
 ner, 21 Ky. L. Rep. 151, 43 L. R. 
 A. 554, 45 S. W. 235, 10 Am. & 
 Eng. R. Cas. (N. S.) 223; modified 
 on rehearing, 21 Ky. L. Rep. 156, 
 .51 S. W. 806. 
 
 A change of grade by erecting a 
 viaduct, the surface of which be- 
 comes the surface of the street, 
 and thus totally cutting off light, 
 air, and access from abutting prop- 
 erty is not a taking within the 
 meaning of a constitutional pro- 
 vision as to compensation, the 
 viaduct being made by the munic- 
 ipal authority, and in the exer- 
 cise of its power to change the 
 grade, though under an agreement 
 by which the railroad companies 
 whose tracks are to be within the 
 viaduct, are to contribute toward 
 the expense. Selden v. Jackson- 
 ville (Fla.), 14 L. R. A. 370, 10 
 So. 457. 
 
 The uses of streets prevailing at 
 the time of taking or dedicating 
 a street do not limit the public 
 right. They are not the only uses 
 which the owner of the soil is 
 deemed to have contemplated. 
 Such uses may be enlarged and 
 may include all the additional and 
 improved methods of obtaining 
 the same objects and enjoying the 
 same privileges, not however to 
 the denial or substantial impair- 
 ment of the abutting owner's use 
 and enjoyment of the fee of the 
 highway to the center thereof, 
 subject to the public easement 
 therein. Magee v. Overshiner, 150 
 Ind. 127, 40 L. R. A. 370, 49 N. 
 E. 9SI- 
 
 Where the tracks are not laid 
 on the established grade, an ad- 
 ditional servitude is imposed. 
 Sherlock v. Kansas City Belt R. 
 Co., 142 Mo. 172, 43 S. W. 629, 64 
 Am. St. Rep. 551. 
 
138 
 
 STREET SURFACE RAILROADS. 
 
 The conversion of an existing 
 single-track horse railway into a 
 double-track electric road under 
 legislative authority and with mu- 
 nicipal consent is not an addi- 
 tional servitude. Reid v. Norfolk 
 City R. Co., 94 Va. 117, 36 L. R. 
 A. 274, 26 S. E. 428. 
 
 The permission to a street rail- 
 road company to lay its tracks in 
 a street already appropriated to 
 public use is not the grant of the 
 right to appropriate an additional 
 easement in the soil of the street, 
 but merely a mode of facilitating 
 existing travel by adding an ad- 
 ditional mode of conveyance to 
 those already upon the street. 
 Owner of the fee of the street can- 
 not complain. Chicago, etc., R. 
 Co. v. West Chicago St. R. Co., 
 156 111. 255, 29 L- R- A. 485, 40 
 N. E. 1008. 
 
 An owner of the soil has no new 
 servitude imposed upon him by a 
 railroad on a street for transport- 
 ing freight and passengers, al- 
 though he may be entitled to dam- 
 ages for injury to his right of ac- 
 cess, or light, or air. Montgomery 
 V. Santa Ana & W. R. Co., 104 
 Cal. 186, 25 L. R. A. 654, 10 Am. 
 R. & Corp. Rep. 25, 43 Am. St. 
 Rep. 89, 37 Pac. 186. 
 
 A lease by a railroad company 
 to other companies of the right 
 to use its tracks for terminal 
 facilities imposes no additional 
 servitude. Miller v. Green Bay, 
 etc., R. Co. (Minn.), 26 L. R. A. 
 443, 60 N. W. 1006. 
 
 The right of the abutting own- 
 ers to compensation for impair- 
 ment of their easement of light, 
 air, and access in the street by the 
 construction of a railroad thereon 
 is not affected by the fact that the 
 
 construction is authorized by an 
 act of the legislature. New Mexi- 
 can R. Co. v. Hendricks, 6 N. M. 
 611, 30 Pac. 901. As to steam 
 railroads upon the street, see 
 Henry Gaus & Sons Mfg. Co. v. 
 St. Louis, etc., R. Co., 113 Mo. 
 308, 18 L. R. A. 339, 7 Am. R. 
 & Corp. Rep. 235, 20 S. W. 658. 
 
 The construction of a private 
 railroad for an exclusively private 
 use can no more be made on that 
 portion of an owner's land occu- 
 pied by a public railroad than on 
 any other portion of his estate. 
 Bradley v. Pharr, 45 La. Ann. 426, 
 19 L. R. A. 647, 12 So. 618. 
 
 Poles for an electric street rail- 
 way must not be so placed as to 
 interfere unnecessarily with the 
 right of abutting owners to use 
 and enjoy their property. Snyder 
 V. Fort Madison St. Ry. Co., 7 
 Am. Electl. Cas. 359, 105 Iowa, 
 284, 75 N. W. 179, 41 L. R. A. 
 345, II Am. & Eng. R. Cas. (N. 
 S.) 53; McDermott v. Warren, 
 etc., Ry. Co. (Mass.), 7 Am. Electl.. 
 Cas. 367. 
 
 An abutter, owning to the mid- 
 dle of the street, can use the writ 
 of certiorari to test the validity 
 of an ordinance which purports to 
 confer the power to place poles 
 whereon to stretch wires for an 
 overhead trolley system. State, 
 Green, Pros. v. Trenton, 4 Am. 
 Electl. Cas. 30, 54 N. J. L. 92. 
 
 The filing by an owner of land, 
 of a consent for the construction 
 of a street railway upon the street 
 upon which the land abuts does 
 not estop the one signing the con- 
 sent to claim that no consent was 
 given for the construction in front 
 of other lands subsequently pur- 
 chased by him. Taylor v. Erie 
 
RIGHTS IN STREETS. 
 
 139' 
 
 settled question. '3 There seems to be no reason for distinc- 
 tion in this regard between a country road and a city street, 
 unless it be that a highway primarily is not for the purpose 
 of facilitating intercourse between places, separated by a 
 considerable distance, but for the purpose of aiding abutting 
 owners to have ready access to property upon the same 
 street. Therefore, at the time of the original taking for the 
 highway, the abutting owner had taken from him the right 
 to public use of the way in any mode whatever to facilitate 
 intercourse along and upon the street, whether the method 
 was then known or not; but as to intercourse between places 
 not upon the highway, and between which the highway was 
 a connecting link, the public use was limited to the common 
 
 City Pass. R. Co., i86 Pa. St. 120, 
 40 Atl. 316. 
 
 But see to the contrary, Jaynes 
 V. Omaha St. R. Co., 7 Am. Electl. 
 Cas. 328, S3 Nebr. 631, 39 L- R- A. 
 751, 74 N. W. 67; East End St. R. 
 Co. V. Doyle, 88 Tenn. 747, 9 L. R. 
 A. 100, 13 S. W. 936; Stange v. 
 Dubuque, 62 Iowa, 303, 17 N. W. 
 S18. 
 
 A statute authorizing selectmen 
 to assess the damages suffered by 
 abutting owners on account of the 
 construction of lines for the 
 " transmission of intelligence by 
 electricity " and of " electric light 
 and electric power lines," does not 
 affect electric railway lines. Mc- 
 Dermott v. Warren, etc., St. Ry. 
 Co. (Mass.), 7 Am. Electl. Cas. 
 
 367- 
 
 13. Ehret v. Camden & T. Ry. 
 Co. (N. J. Ch.), 7 Am. Electl. Cas. 
 383, 46 Atl. 578; Zehren v. Mil- 
 waukee El. R. & L. Co., 7 Am. 
 Electl. Cas. 345, 99 Wis. 83, 67 
 Am. St. Rep. 844. 74 N. W. 538, 
 
 41 L. R. A. S7S; Fidelity Ins. T. 
 & S. D. Co. V. Philadelphia & B. 
 Pass. R. Co. (C. P.), 6 Pa. Dist.. 
 
 A street railroad may be main- 
 tained on a highway as against an 
 abutting owner, providing it does 
 not infringe the Maine statute re- 
 quiring highways to be maintained 
 " so as to be safe and convenient 
 for travelers with horses, teams, 
 and carriages." Taylor v. Ports- 
 mouth, K. & Y. St. R. Co., 91 Me. 
 193, 39 Atl. 560; Pa. R. Co. v. 
 Mont. Co. Pass. R. Co., 5 Am. 
 Electl. Cas. 166, 167 Pa. St. 62, 
 31 Atl. 468, 36 W. N. C. 153, 27 
 L. R. A. 766. 
 
 An electric passenger railroad 
 upon a country highway, whether 
 or not the railroad be interurban, 
 constitutes an additional burden 
 which entitles the abutting owner 
 to compensation for injuries sus- 
 tained. Zehren v. Milwaukee El. 
 Ry. & L. Co., supra, 7 Am. ElectL 
 Cas. 345- 
 
140 
 
 STREET SURFACE RAILROADS. 
 
 methods of locomotion, by which the traveler could readily 
 move upon any part of the highway, and had no unusual or 
 exclusive privilege thereon. "* Whether or not the abutting 
 owner owns to the middle of the street, subject to the public 
 ■easement therein, afifects the question but little, except in 
 New York. Nearly all the authorities agree that if he does 
 not own the fee in any part of the street, he is entitled to 
 damages and an injunction, when the street is practically 
 and substantially closed against him for ordinary street pur- 
 poses, under the authority of the municipality owning the 
 fee, as by a railroad embankment therein, several feet high, 
 with perpendicular stone walls, leaving a space only eight or 
 nine feet wide for a carriage.'' But even if he own the fee 
 
 14, In Wisconsin it is held that 
 an electric railroad in a village 
 street, forming part of a connect- 
 ing line between cities for the 
 •conveyance of passengers, and 
 also personal baggage, mail, ex- 
 press matter, and merchandise, 
 ■constitutes an additional servitude 
 for which abutting owners are en- 
 titled to compensation. Chicago 
 •& N. W. R. Co. V. Milwaukee, 
 etc., R. Co., 95 Wis. 561, 37 L. R. 
 A. 856, 70 N. W. 678. 
 
 15. Reining v. N. Y., L. & W. 
 R. Co., 128 N. Y. 157, 14 L. R. A. 
 133, 40 St. Rep. (N. Y.) 392, 28 
 N. E. 640, 10 Ry. & Corp. L. J. 
 462; Egerer v. N. Y. C. & H. R. 
 R. Co., 130 N. Y. 108, 14 L. R. A. 
 381, 41 St. Rep. (N. Y.) 488, 29 
 N. E. 95 ; Martin v. Chicago, S. F. 
 & C. R. Co., 47 Mo. App. 452; 
 ■Onset St. R. Co. v. Plymouth Co. 
 Corars., 154 Mass. 395, 28 N. E. 
 286; Jones v. Erie & W. Va. R. 
 Co., 144 Pa. St. 629, 23 Atl. 251, 
 
 29 W. N. C. 167, I Pa. Adv. Rep. 
 98; Highland Ave. & B. R. Co. 
 v. Matthews (Ala.), 14 L. R. A. 
 462, 10 So. 267, 34 Cent. L. J. 158; 
 Wead v. St. Johnsburg & L. C. 
 R. Co. (Vt.), 24 Atl. 361; Lock- 
 wood V. Wabash R. Co., 122 Mo. 
 86, 24 L. R. A. 516, 26 S. W. 698; 
 Johnson v. Old Colony R. Co. 
 (R. I.), 29 Atl. 594. 
 
 For an injury, due to obstruc- 
 tion of the easement of light, air, 
 or access to his property, or to 
 vibrations caused by running 
 heavy cars at a great speed, the 
 abutting owner has his remedy at 
 law and should be remitted thereto. 
 State V. Railroad Co., 6 Am. 
 Electl. Cas. 137, 58 N. J. 666. 
 
 Nothing can be claimed on the 
 ground that city railroads are a 
 great public convenience and bene- 
 fit; if they are so, the public can 
 aflford to pay for them; that is 
 certainly no reason why individual 
 property should be taken for pub- 
 
RIGHTS IN STREETS. I4I 
 
 to the center of the street, and there are shade trees in the 
 street and upon that portion of which he owns the fee, a 
 traction company, authorized by the city to erect its trolleys 
 in the street, may top the branches of the trees where they 
 overhang the street in such a manner as to make the cutting 
 reasonably necessary for the passage of its wires. The 
 boughs are subject to removal by the municipal authorities 
 whenever the public exigency or convenience requires it, 
 and the authority to extend the wires along the street in- 
 volves, by implication, the competency to do whatever is 
 reasonably necessary to effect the end in view.'^ It may 
 remove shade trees within the limits of the public highway, 
 for the construction of its road as established by the town- 
 ship authorities without compensating the abutting owner 
 for damages, provided it gives notice to the owner that the 
 removal of the trees is necessary for its purposes and an 
 opportunity to remove them as he may see fit.'^ It may be 
 
 lie use. Hinchman v. Paterson street railways, cannot occupy a 
 
 Horse R. Co., 2 C. E. Green (N. highway and construct thereon a 
 
 J.), 75, 80. railroad, not conforming to the 
 
 Where the trolley track is laid surface of the highway, but having: 
 
 in conformity to the direction of cuts and fills with trenches at the 
 
 a special ordinance, the company side of the roadbed and using a 
 
 will not be restrained from oper- "X" rail, although authorized so 
 
 ating it because its location works to do by the town authorities, 
 
 inconvenience and injury to the without compensation to abutting 
 
 abutting owners, since, if the mu- owners. Nichols v. Ann Arbor 
 
 nicipality has so unreasonably ap- & Y. St. R. Co., 87 Mich. 361, i6- 
 
 propriated the divisions of the L. R. A. 371, 49 N. W. 538. 
 
 highways as to injure abutting 16. Dodd v. Consolidated Trac- 
 
 owners, their remedy is in the tion Co. (N. J. Sup.), 3 Am. Electl. 
 
 courts of law which supervise in- Cas. 201, 57 N. J. L. 482, 31 Atl. 
 
 ferior jurisdiction, and not in 980. 
 
 equity. Budd v. Camden Horse i7- Miller v. Detroit, Y. & A. A. 
 
 R. Co. (N. J. Ch.), 48 Atl. 1028. Ry. Co. (Mich. Sup. Ct.), 7 Am. 
 
 A railroad company organized Electl. Cas. 387, 51 L. R. A. 955. 
 
 under How. (Mich.) Annot. Stat., In the case cited, the court, per 
 
 chap. 94, providing for " train " or Grant, J., said: "It is estab- 
 
142 
 
 STREET SURFACE RAILROADS. 
 
 difficult to justify the use of the streets for through trains 
 made up of a motor car and trailers, with instructions to the 
 company's employees not to carry local passengers, upon 
 
 lished beyond controversy that the 
 municipal authorities have entire 
 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. Vanderhurst v. Tholcke, 
 113 Cal. 147, 36 L. R. A. 267, 45 
 Pac. 266; Everett v. Council Bluffs, 
 46 Iowa, 66; Wilson v. Simmons, 
 89 Me. 242, 36 Atl. 380. It is true 
 that these trees were lawfully 
 planted, and that they are the pri- 
 vate property of the abutting 
 owner. It is also true that one 
 planting trees in the public high- 
 way plants them with the under- 
 standing that they can remain 
 there only so long as the space oc- 
 cupied by them is not required for 
 public use. These roads are not 
 an additional servitude as we have 
 repeatedly held. When therefore 
 their construction is duly author- 
 ized, it logically follows that the 
 company has the right to remove 
 from the highway any object 
 which interferes with the proper 
 construction and operation of the 
 road. Such power is necessarily 
 implied. Dodd v. Consolidated 
 Traction Co., 57 N. J. L. 482, 31 
 Atl. 980; Southern Bell Teleph. 
 Co. V. Francis, log Ala. 224, 31 L. 
 R. A. 193, 19 So. I. When a man 
 dedicates his land for a public 
 Tiighway, or it has been con- 
 demned for that purpose, and he 
 has been compensated, it is defi- 
 
 nitely understood by him that 
 whatever he may lawfully do 
 within the boundaries of the high- 
 way, is done with the right of the 
 lawful authorities to appropriate 
 the entire width of the high- 
 way for purposes of travel, if it 
 shall become necessary. Street 
 railways, in city and country, have 
 come to be regarded as a public 
 necessity and their construction 
 upon the highways universally 
 sanctioned. If the township au- 
 thorities may remove any obstruc- 
 tion to the public use, there seems 
 to be no sound reason why they 
 may not authorize street railway 
 companies, telephone companies, 
 and the like to do so, when such 
 companies are lawfully entitled to 
 the use of the streets. It is con- 
 ceded that the township author- 
 ities in this case were authorized 
 to grant the franchise to the de- 
 fendant, and to determine in what 
 part of the highway its road should 
 be constructed. The township 
 may possibly fix, as a condition of 
 the grant, the payment of dam- 
 ages for the destruction of the 
 shade trees. The legislature un- 
 doubtedly has the power to pro- 
 vide that abutting owners should 
 be compensated for the damage 
 which must result to them from the 
 destruction of their trees. That 
 however is a matter for the deter- 
 mination of the legislature and not 
 for the courts. The legislature has 
 granted the power to do it with- 
 out compensation. The township 
 
TAKING " PROPERTY. 
 
 143 
 
 the theory upon which the use of streets for street railways 
 has been justified, as a legitimate use.'* 
 
 § 3. " Taking " of abutting owners' property. — As has been 
 already stated, every, or nearly every. State, by constitutional 
 provision, or otherwise, prohibits the taking of private prop- 
 erty for public use without compensation, and the laying of 
 railroad tracks in the streets without the consent of the local 
 authorities and a majority of the property-owners. '^ Whether 
 
 have not provided for it. Courts 
 are therefore powerless. But there 
 is one fatal defect in the defend- 
 ant's proceedings. It secured no 
 greater rights by its franchise than 
 the municipality had. The law 
 gives neither the right to remove 
 shade trees without notice to the 
 owner and an opportunity given 
 him to remove them as he sees fit. 
 Clark V. Dasso, 34 Mich. 86. Un- 
 der that decision plaintiff was en- 
 titled to recover for damages and 
 the judgment must therefore be 
 affirmed. 
 
 18. West Jersey R. Co. v. Cam- 
 den, etc., Ry. Co., S Am. Elect!. 
 Cas. 137, 52 N. J. Eq. 31; Aycock 
 V. San Antonio Brewing Assn. 
 (Tex. Civ. App.), 63 S. W. 953- 
 
 ig. These constitutional provi- 
 sions have uniformly been liber- 
 ally construed for the protection of 
 private property. Not only an ac- 
 tual taking, but also the destruc- 
 tion of private property, either 
 total or partial, or the diminution 
 of its value by the act of the gov- 
 ernment, directly and not merely 
 incidentally affecting it, which de- 
 prives the owner of the ordinary 
 use of it, is a taking, within the 
 constitutional provision, which can 
 
 only be exercised under the right 
 of eminent domain, and just com- 
 pensation made. Trenton Water 
 Power Co. v. Rath, 7 Vroom (N. 
 J-). 335; Pa. R. Co. V. Angle, 14 
 Stew. Eq. (N. J.) 316, 329. 
 
 The Constitutions of the several 
 States, almost without an excep- 
 tion, prevent the legislature from 
 granting to a railroad the right 
 to use a public highway as the bed 
 of its railroad without compensa- 
 tion to the owner of the soil. See 
 Star V. Camden & Atl. R. Co., 4 
 Zabr. (N. J.) 592; Hinchman v. 
 Paterson Horse R. Co., 2 C. E. 
 Green (N. J.), 75. In the latter 
 case, Chancellor Green, in his 
 opinion, distinguished the use of 
 a street for a horse railroad 
 from its use by an ordinary rail- 
 road, and justified the use of part 
 of the highway for street railroads 
 and the change from horse power 
 to electricity without compensat- 
 ing the owner in this language: 
 " They are ordinarily, as in this 
 case, required to be laid level with 
 the surface of the street, in con- 
 formity with existing grades. No 
 excavations or embankments to 
 affect the land are authorized or 
 permitted. The use of the road is 
 
144 
 
 STREET SURFACE RAILROADS. 
 
 or not the construction and operation of a street railroad in 
 a street, in which the abutting owners have the fee to the 
 center, is an additional servitude, and so a taking is, except 
 in New York, largely a question of fact, dependent upon the 
 character of the road and its construction. All the courts 
 substantially agree that the use of a street for other than 
 legitimate purposes, which constitutes any impairment of 
 the easements of an abutting owner, is a taking of his prop- 
 erty, within the meaning of the Constitution.^" In New 
 
 nearly identical with that of the 
 ordinary highway. The motive 
 power is the same. The noise and 
 traffic of the street by the cars is 
 not greater, and ordinarily less, 
 than that produced by omnibuses 
 and other vehicles in ordinary use. 
 A change in the motive power of 
 such cars did not necessarily oc- 
 casion any injurious effects upon 
 the abutting property. Cars of 
 the same pattern and size of the 
 cars used by the company as a 
 horse railroad and driven with no 
 greater speed, might have been 
 adapted to the new motive power; 
 therefore the substitution of elec- 
 tric motors with the trolley sys- 
 tem, for horses on street railroads 
 does not per se create an additional 
 easement." State v. Railroad Co., 
 6 Am. Electl. Cas. 137, 5 N. J. 
 666, supra. 
 
 If the acts done under color of 
 the ordinance or the statute be 
 found to be an unlawful infrac- 
 tion of the rights of private prop- 
 erty, an action will lie in which 
 neither the ordinance or the stat- 
 ute would be a justification. Cos- 
 tegan v. Pa. R. Co., 25 Vroom (N. 
 J.) 234- 
 
 20. Willamette Iron Works Co. 
 
 v. Oregon R. & Nav. Co., 36 
 Oreg. 224, 37 Pac. 1016; Sherlock 
 v. Kansas City Belt R. Co., 142 
 Mo. 172, 64 Am. St. Rep. 551, 43 
 S. W. 629. In the case last cited 
 it was held that-^ a franchise for 
 the construction of a railroad 
 switch through an alley in a city 
 to connect with the main line is 
 for a public and not a private pur- 
 pose, notwithstanding that private 
 parties are served thereby, where 
 they have no control or manage- 
 ment of the cars or the business 
 of transportation. And see St. 
 Louis, O. M. & S. R. Co. v. Petty, 
 57 Ark. 359, 20 L. R. A. 435, 21 
 S. W. 884; Butte, A. & P. R. Co. 
 V. Montana Union R. Co., 16 
 Mont. 504, 31 L. R. A. 298, 41 
 Pac. 232; Brown v. Chicago G. 
 W. R. Co., 137 Mo. 529, 38 
 S. W. 1099; White V. North- 
 western N. C. R. Co., 113 N. 
 C. 610, 22 L. R. A. 627, 56 Am. 
 & Eng. R. Cas. 706, 18 S. E. 
 330; Spencer v. Met. St. R. Co., 
 120 Mo. 154, 22 L. R. A. 668, 23 
 S. W. 126; Potts V. Quaker City 
 El. R. Co. (Pa. C. P.), 3 Pa. Dist. 
 172, II Lane. L. Rev. 81; afFd., 
 i6i Pa. St. 396, 34 W. N. C. 261, 
 II Lane. L. Rev. 204, 29 Atl. 108. 
 
' TAKING PROPERTY. 
 
 145 
 
 York the question was settled many years ago, beyond 
 peradventure, and conclusively, that the construction of a 
 steam railroad across a highway, and in the ordinary way 
 in which such roads are constructed and carried on, is 
 an appropriation of the highway for a new and distinct pur- 
 pose, entirely foreign to its original object, and which en- 
 titles the owner to compensation/' And the same rule is 
 made applicable, in that State, to street surface railways." 
 
 In the case last cited it was held 
 that the abutting owners were enti- 
 tled to have their compensation in 
 damages secured first, before the 
 company would be permitted to 
 go on with the construction of an 
 elevated road in the streets. 
 
 A horse railway may not be laid 
 in a city street solely as a freight 
 transfer track between two steam 
 railroads running into the city, 
 without compensation to the ad- 
 joining landowners; and this is so 
 although the street is on land 
 made by filling in below low-water 
 mark in a navigable river or lake. 
 Carli V. Stillwater St. R. & Trans- 
 fer Co., 28 Minn. 373, 41 Am. Rep. 
 290, 10 N. W. 205. 
 
 One purchasing land abutting on 
 a street upon which a railroad had 
 previously been constructed under 
 a license by city council, subject 
 to the rights of abutting owners, 
 is entitled to recover from the 
 company notwithstanding a failure 
 by his grantor to assign his cause 
 of action for the damages to the 
 premises caused by its construc- 
 tion and operation during the time 
 he owned the land prior to the ac- 
 tion which had not been barred by 
 limitation. Hoffman v. Flint & 
 P. M. R. Co., 114 Mich. 316, 9 
 
 Am. & Eng. R. Cas. (N. S.) 447, 
 72 N. W. 167, 4 Det. Leg. N. 590, 
 30 Chic. Leg. N. 107. 
 
 The constructing of a railroad, 
 with the consent of the local au- 
 thorities, in a street sixty feet wide, 
 is not such an interference with 
 access to the property of an abut- 
 ting owner, which at the nearest 
 point is twenty-five feet from the 
 track, as to entitle him to dam- 
 ages. Kansas, N. & D. R. Co. v. 
 Mahler, 43 Kan. 565, 26 Pac. 22. 
 
 21. The Trustees of the Presby- 
 terian Society in Watertown v. 
 The Aub. & Roch. R. Co., 3 Hill 
 (N. Y.), 567; Fletcher v. The Aub. 
 & Syr. R. Co., 25 Wend. (N. Y.) 
 462; Williams v. N. Y. C. & H. 
 R. R. Co., 16 N. Y. 97; Davis v. 
 Mayor, 14 id. 506; Mahon v. N. 
 Y. C. R. Co., 24 id. 658; Carpen- 
 ter v. Same, id. 655; Wager v. 
 Troy Union R. Co., 25 id. 526. 
 
 22. Craig V. Rochester, etc., R. 
 Co., 39 N. Y. 404. In Wager v. 
 Troy Union R. Co., 25 id. 526, 
 the court, referring to the distinc- 
 tion claimed to exist between 
 roads operated by steam and others 
 by horse power, said per Smith, 
 J. : " With a single track, and 
 particularly if the cars used upon 
 it were propelled by horse power, 
 
 ID 
 
146 
 
 STREET SURFACE RAILROADS. 
 
 The argument is, that a street surface railroad company 
 acquires a property right in the street, and may use a por- 
 
 the interruption of the public ease- 
 ment in the street might be very 
 trifling, and of no practical con- 
 sequence to the public at large. 
 But this consideration cannot af- 
 fect the question of the right of 
 property, or the increase of bur- 
 den upon the soil. It would pre- 
 sent simply a question of degree 
 in respect to the enlargement of 
 the easement, and would not af- 
 fect the principle that the use of a 
 street for the purpose of a rail- 
 road, imposed upon it, is a new 
 burden." In the Craig Case, supra, 
 the court, per Miller, J., in the 
 prevailing opinion, said: "The 
 ground upon which these cases are 
 decided is, that the use of the land 
 for a railroad imposes an additional 
 burden upon the owner of the fee. 
 I am at loss to see any apparent 
 distinction in the application of the 
 rule between cases where steam 
 power is employed, and those cases 
 where the road is operated by 
 horse power. It is true there is 
 some difference in the manner in 
 which the road is constructed, and 
 in the speed with which its cars 
 are propelled, at times; but there 
 is precisely the same exclusive ap- 
 propriation of the track for the 
 purposes intended in each case, to 
 the absolute exclusion of all who 
 may interfere with its mode of 
 operation. The power to use the 
 road for the conveyance of pas- 
 sengers is entirely with the com- 
 pany, and no person can interfere 
 with that method of conveyance, 
 or with the right of the company 
 to enjoy its monopoly. As was 
 
 held in Hogan v. Eighth Ave. R. 
 Co., IS N. Y. 380, the company 
 has the exclusive right of the 
 tracks while the cars are passing, 
 and all others must keep out of 
 their way, and if a party is in- 
 jured while they are proceeding at 
 a reasonable and lawful rate of 
 speed, an action cannot be main- 
 tained against the company for 
 the injury. This privilege of lay- 
 ing and using the tracks in such 
 a manner confers upon the com- 
 pany a right to the use and enjoy- 
 ment of the track which precludes 
 other vehicles while the opera- 
 tions of the company in the use 
 of the track demand their exclu- 
 sion. Such a right is, I think, in- 
 consistent with the nature of the 
 easement acquired by the public. 
 In Williams v. N. Y. C. R. Co., 
 Selden, J., after stating the dis- 
 tinction between the two uses to 
 which the highway is applied by 
 converting it into a railroad track, 
 proceeds to argue, that by means 
 thereof two easements are created, 
 one vested in the public which has 
 been paid for, and the other in 
 the company, and remarks: 
 ' These easements are property 
 and that of the railroad company 
 is valuable. How was it acquired? 
 It has cost the company nothing. 
 The theory must be that it is carried 
 out and is part of the public ease- 
 ment, and is therefore a gift of the 
 public. This would do if it was 
 given solely at the expense of the 
 public. But it is manifest that it 
 is at the joint expense of the pub- 
 lic and of the owner of the fee. 
 
TAKING " PROPERTY. 
 
 147 
 
 tion thereof almost exclusively, and that the public did not 
 Tiave such a property right to give without the consent of 
 
 Ought not the latter to have been 
 ■consulted?' There is much force 
 I think, ip these suggestions, and 
 it is difficult to see how they can 
 be answered satisfactorily and ac- 
 cording to any well-settled legal 
 principle. If the reasoning of the 
 learned judge is correct, then the 
 -same rule is applicable to each 
 ■class of railroads, the diflference 
 in the use being only in the de- 
 :gree. 25 N. Y. 533- 
 . " The use of a railroad, no mat- 
 ter how it is operated, Whether by 
 horse or steam power, necessarily 
 includes, to a certain extent, an 
 exclusive occupation of a portion 
 of the highway, for the track of 
 the road, and the running of its 
 cars by the company, and a per- 
 manent occupation of the soil. It 
 requires that all other parties shall 
 stand aside and make way for its 
 progress. This is clearly incon- 
 sistent with the legal object and 
 design of a highway, which is free 
 and open to all, for purposes of 
 locomotive travel and transporta- 
 tion. The enjoyment of the ease- 
 ment in a highway never confers 
 an exclusive right upon any one 
 who may have occasion to use it, 
 while the laying down of rails, and 
 the employment of cars, is to the 
 ■detriment and exclusion of all 
 others at the time when the cars 
 are running, and a restraint upon 
 a free, undisturbed, and general 
 public use. It is an assertion of a 
 right to the possession of the high- 
 way by a corporation, and an ap- 
 propriation of it to private occu- 
 pation, which, by lapse of time, 
 
 might ripen into a right, and vest 
 a title in the company. 
 
 " Instead of being the exercise 
 of a right of passage and repas- 
 sage over a highway or street, it 
 cannot, I think, be denied, that it 
 is sometimes an obstruction to 
 travel, and an infringement upon 
 the rights of the public and own- 
 ers of the land. In narrow streets, 
 where the rails of the road border 
 close upon the sidewalk, it not only 
 interposes obstacles to the traveler, 
 but inflicts injury upon the lot- 
 owner by blocking up the way and 
 preventing a free access to the 
 premises. The large and un- 
 wieldy vehicles which are used, 
 which can only proceed upon a 
 track laid for that purpose, with 
 no capacity to turn out, so as to 
 avoid or accommodate ordinary 
 carriages, are often a source of 
 annoyance and obstruction to the 
 free passage of horse and carriages, 
 for periods of greater or less dura- 
 tion, and are inconsistent with the 
 use of an open and free passage of 
 the highway." 
 
 In 1893 in McCruden v. koch- 
 ester Ry. Co., 5 Misc. Rep. (N. 
 Y.) 59, 61, Mr. Justice Rumsey, 
 stating that the Craig Case was 
 still the law of the State upon the 
 question, said: "It is conceded 
 by the defendant that before 1874 
 the construction of a street rail- 
 way was an additional burden 
 upon the highway, for which the 
 abutting owner was entitled to be 
 compensated, if he was, at the 
 same time, the owner of the fee 
 of the street. Craig v. Rochester 
 
148 
 
 STREET SURFACE RAILROADS. 
 
 City, etc., R. Co., 39 N. Y. 404. 
 Although that case was decided by 
 a divided court, it was simply an 
 application of principles which had 
 long been thoroughly settled in 
 this State, and as such it has been 
 invariably approved, whenever it 
 has been cited. It has now become 
 a rule of property which no court 
 would venture to overthrow. 
 Fobes V. Rome, etc., R. Co., 121 
 N. Y. SOS, 51S, 24 N. E. 919. The 
 amendment to the Constitution in 
 1874 did not at all affect the rule 
 laid down in the Craig Case, 39 
 N. Y. 404. The legislature always 
 had power to authorize the con- 
 struction of street railways in any 
 city. This they could do without 
 compensation to the abutting own- 
 ers, if the fee of the street was in 
 the city, while such owners were 
 entitled to compensation if they 
 had the fee. The legislature could 
 give this permission by general or 
 local acts, as it saw fit. The 
 amendment to the Constitution 
 (art. Ill, § 18) forbade the legis- 
 lature to grant by private or local 
 act to any corporation the right to 
 lay down railroad tracks. The 
 section then proceeded to require 
 that the legislature should pass 
 general laws for the acquisition of 
 such rights. But it put upon that 
 power of the legislature a limita- 
 tion which had not previously 
 existed, and that was that no law 
 should be passed, to authorize the 
 construction of a street railroad 
 except with the consent of prop- 
 erty-owners, or if that consent 
 could not be obtained, by direc- 
 tion of the Supreme Court. There 
 is nothing in the amendment from 
 which it can be inferred that the 
 rights of property-owners were in 
 
 the slightest degree infringed or 
 diminished. On the contrary, the 
 express object of the amendment 
 was to give them additional pro- 
 tection against the acts of the 
 legislature. The right of an indi- 
 vidual to compensation, when an 
 additional burden is put upon the 
 property for public purposes, is 
 well established and secured, and 
 no change of the organic law 
 should be construed to aflfect such 
 a right, unless it be plainly ex- 
 pressed or necessarily to be in- 
 ferred from the language of the 
 Constitution. That is not the case 
 here. This amendment has all the 
 effect that can be claimed for it 
 when it is construed to give to 
 property-owners a limited right to 
 control the construction of a street 
 railway in front of their premises. 
 Since 1874 there have been very 
 many cases in which the construc- 
 tion of street railroads in front of 
 private property has been enjoined 
 at the suit of persons who owned 
 the fee of the highway. In none 
 of these cases has it ever been 
 suggested that the amendment of 
 1874 took away their rights to 
 compensation. That of itself is 
 strong evidence that no such con- 
 struction should be given to it. I 
 am quite clear that the case of Craig 
 V. Rochester, etc., R. Co., 39 N. Y. 
 404, is still the law of the State." 
 On the 1st April, 1902, the Court 
 of Appeals followed the Craig case 
 in obedience to the doctrine of 
 stare decisis; Parker, Ch. J., in his 
 dissenting opinion, stated that he 
 did not disagree with his associates 
 as to the scope of the decision in 
 the Craig case, nor did they dis- 
 agree with his contention that that 
 decision was a mistake. Peck v. 
 
TAKING PROPERTY. 
 
 149 
 
 the owner of the fee.^3 it is also settled law in New York 
 that the owner of a lot which extends to the side of a public 
 street has an easement in the street for light, air, and access 
 for the benefit of his abutting property, which constitutes 
 private property within the meaning of the constitutional 
 provision that private property shall not be taken for a 
 public use without just compensation.^* And the fact that 
 the title to the bed of the street is in private individuals 
 will not prevent the acquisition, by the owner of land border- 
 ing on such street, of rights, as against the public, in the 
 nature of easements, which will prevent the public from 
 devoting such street to uses inconsistent with its free use as 
 a street, without making compensation to him.^s But these 
 private rights in a public street may be lost in case their 
 existence is denied, and they are exclusively possessed for 
 more than twenty years by one who claims to own the fee 
 of the street, or some adverse right, as against the world.^* 
 So long however as the abutting owner continues to own the 
 property and is 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 proceed- 
 
 Schenectady Ry. Co., 27 N. Y. L. 268, 47 N. W. 4SS, 46 Am. & Eng. 
 
 J. 16s; to be reported in 170 N. Y. R. Cas. 42, 9 Ry. & Corp. L. J. 
 
 298. 222; Matlage v. N. Y. El. R. Co., 
 
 23. Williams v. N. Y. C. R. 58 Hun (N. Y.) 603; mem., 33 St. 
 Co., 16 N. Y. 97. And see Spen- Rep. (N. Y.) 918, n N. Y. Supp. 
 cer V. Met. St. R. Co., 120 Mo. 482. 
 
 154, 22 L. R. A. 668, 23 S. W. 126. 25. Kane v. N. Y. El. R. Co., 
 
 24. Abendroth v. Manhattan R. 125 N. Y. 164, 11 L. R. A. 640, 46 
 Co., 122 N. Y. I, 33 St. Rep. (N. Am. & Eng. R. Cas. 137, 26 N. E. 
 Y.) 475, 25 N. E. 496, II L. R. A. 278, 34 St. Rep. (N. Y.) 876, 9 Ry- 
 634, 46 Am. & Eng. R. Cas. 128, & Corp. L. J. 142. 
 
 19 Am. St. Rep. 461, 24 Ohio L. J. 26. Woodruff v. Paddock, 130 N. 
 
 340, 8 Ry. & Corp. L. j. 514. And Y. 618, 29 N. E. 1021; Lewis v. N. 
 
 see Lamm v. Chic, St. P., M. & Y. & H. R. Co., 162 N. Y. 202, 56 
 
 O. R. Co., 45 Minn. 71, 10 L. R. A. N. E. S4o. 
 
150 STREET SURFACE RAILROADS. 
 
 ings, providing the remedy is claimed within the statutory 
 period of limitation applicable to his legal right, or before 
 adverse possession has barred his title to the property in- 
 jured. The lapse of six years after the construction of a 
 railroad in a New York State street, unlawful as to the 
 abutting owner, bars, not only the legal, but also constitutes 
 a practical defense to an equitable action founded upon the 
 necessity of numerous legal actions to obtain redress, be- 
 cause the right to such redress has, as to such wrongs, 
 expired. But, if the trespasses are continued after that 
 period, new causes of action arise, unbarred by any rule of 
 law or equity, which are cognizable, not only at law, but also 
 in equity.^7 But the right of abutting owners in the street 
 is not of that absolute character that they can resist or pre- 
 vent any or all interference with the street to their detriment,, 
 or which can be asserted to stay the hand of the municipality 
 in the control, regulation, or improvement of the streets in 
 the public interests, although it may be made to appear that 
 the privileges which they had theretofore enjoyed, and the 
 benefits they had derived from the streets in their existing 
 
 27. Galway v. M. E. R. Co., 128 abutting property-owner to enjoin 
 
 N. Y. 132, 144, 147, 28 N. E. 479; the railroad company from using 
 
 Uline V. N. Y. C. & H. R. R. so much of the street as may be 
 
 Co., loi N. Y. 98, 4 N. E. 536; necessary for the passage of 
 
 Arnold v. H. R. R. Co., 55 vehicles accrued when the road 
 
 N. Y. 661; Colrick v. Swinburne, was put in operation, if injunction 
 
 los N. Y. 503, 12 N. E. 427; Tall- was the proper remedy, and the 
 
 man v. M. E. R. Co., 121 N. Y. right was barred after the lapse of 
 
 123, 23 N. E. 1134. But see Per- five years from that time, under 
 
 guson V. Covington & C. El. R., Ky. Stat., § 2515, providing that 
 
 etc., Co., 57 S. W. 460, holding any action for trespass on real or 
 
 that where a railroad was con- personal property, * * * qj- 
 
 structed in a street under legisla- any injury to the rights of plaintiflE, 
 
 tive and municipal authority, not arising on contract, shall be 
 
 though the entire width of the commenced within the five years 
 
 street was used so as to interfere next after the cause of action ac- 
 
 with its use for the passage of per- crued." 
 sons and vehicles, the right of the 
 
TAKING PROPERTY. 15I 
 
 condition would be curtailed or impaired to their injury by 
 the changes proposed.^* The laying of tracks for the running 
 of cars by steam or horse power on the grade of a city street, 
 and the operation of trains thereon under legislative and 
 municipal authority where the f-ee of the soil is in the munic- 
 ipality, violates no property rights of an abutting owner, and 
 consequently, in the absence of a special statute authorizing 
 compensation, and in the absence of negligence, he is with- 
 out remedy although his property may be injured. Such use 
 of the streets is consistent with their use as public, open 
 streets, and with the trust upon which the streets are held.^^ 
 But neither horse nor steam railroads, or railroads in the 
 operating of which any other motive power is used, can be 
 authorized in streets the fee of which is in the adjacent owner, 
 without his consent. The distinction is made to rest upon 
 the location of the fee.3° Since local authorities can license 
 a street surface railroad corporation to use a street/' the 
 right of the abutter to compensation is against the railroad 
 company and not against the city.^^ 
 
 28. Reining v. N. Y., L. & W. R. 31. Michigan City v. Boeckling, 
 Co., 128 N. Y. 157, 164, 28 N. E. 640. 122 Ind. 39> 23 N. E. 518; Atchison 
 
 29. Reining v. N. Y., L. & W. & N. R. Co. v. Manley, 42 Kan. 577, 
 R. Co., 128 N. Y. 157, 162, 28 N. 22 Pac. 567; Areata v. Areata & M. 
 E. 640; Fobes V. R., W. & O. R. Co., 92 Cal. 639, 28 Pac. 676. 
 R. Co., 121 N. Y. S05, 24 N. E. 32. Burkam v. Ohio & M. R. 
 919; People V. Kerr, 27 N. Y. l88; Co., 122 Ind. 344, 43 Am. & Eng. 
 Kellinger v. Forty-second St. & R. Cas. 153. 23 N. E. 799; Duke v. 
 G. S. F. R. Co., so N. Y. 206; Baltimore, etc., R. Co., 129 Pa. St. 
 Conabeer v. N. Y. C. & H. R. R. 422, 24 W. N. C. 563, 47 Phila. Leg. 
 Co., 156 N. Y. 474, SI N. E. 402- Int. 225, 18 Atl. 566. 
 
 30. Reining case, supra, p. 163; A municipal corporation is not 
 Williams v. N. Y. C. R. Co., 16 liable for damages inflicted upon 
 N. Y. 97; Craig v. Rochester City abutting property by the grading 
 & B. R. Co., 39 N. Y. 404; Clark of a portion of the width of the 
 V. Middletown-Goshen Traction street up to the established grade 
 Co., 6 Am. Electl. Cas. 148, 10 by a street railroad company, 
 App. Div. (N. Y.) 3S4, 41 N. Y. which was required as a condition 
 Supp. 1109. °f constructing its tracks through 
 
152 STREET SURFACE RAILROADS. 
 
 § 4. Remedies of abutting owners. — An abutting owner is not 
 entitled to enjoin the construction of a street railroad merely 
 because his property would be injuriously affected or dam- 
 aged thereby, or because the railroad was not legally author- 
 ized.33 He cannot raise the objection that the railroad 
 company has failed to acquire the right to occupy the street, 
 from other owners who have raised no objection to such 
 occupation.34 He is entitled to maintain an action to recover 
 damages for the construction and use of the railroad, where 
 the company has taken no steps under the statute for the 
 determination of his damages ; and he can recover therein the 
 actual damages sustained between the time of the laying of 
 the tracks and the institution of the suit.^^ A municipal 
 ordinance granting to a railroad company the right to con- 
 struct a railroad on certain streets of a city, and providing 
 that the company shall pay to any property-owner all dam- 
 ages that he may sustain by reason of the construction of 
 the road, and all damages that may be recovered either 
 
 the street, to place it on the offi- on any opened street, lane or alley 
 
 cial grade; the company is liable of the city, but resulting from an 
 
 [pr such damages. Bancroft v. San invasion of the ov/ner's private 
 
 Diego, 120 Cal. 432, 52 Pac. 712. rights. McColgan v. Baltimore 
 
 An ordinance authorizing the Belt R. Co., 86 Md. 325, 37 Atl. 716. 
 
 construction of a street railroad 33. Genl. El. R. Co. v. Chicago 
 
 through the city streets providing & W. Y. R. Co., 184 111. 588, 56 
 
 that for any final judgment recov- N. E. 963, revg. 84 111. App. 640; 
 
 ered for injuries done to private People, Kunze v. Ft. Wayne & E. 
 
 property by the location and con- R. Co., 92 Mich. 522, 16 L. R. A. 
 
 struction of the road, or any other 752, 52 N. W. loio. 
 
 judgment recovered under the or- 34. Sinnot v. Chicago & N. W. 
 
 dinance, the owner shall, in addi- R. Co., 81 Wis. 95, 50 N. W. 1097. 
 
 tion to his ordinary remedies, have 35. Taylor v. Bay City St. R. Co., 
 
 the right to enjoin the operation of loi Mich. 140, i Am. & Eng. R. 
 
 the road unless the judgment is Cas. N. S. 165, SO N. W. 447; 
 
 paid within sixty days — does not Limburger v. San Antonio Rapid 
 
 apply to a judgment recovered for Transit R. Co., (Tex. Civ. App.) 
 
 damages to property not abutting 27 S. W. 198. 
 
OWNERS REMEDIES. 1 53 
 
 against the company or against the city on account of its 
 construction, and indemnify and save harmless the city 
 from all Hability, direct or remote — is intended only for the 
 benefit of the city and does not entitle the property-owner to 
 recover damages which he would not otherwise be authorized 
 to recover.3* If an abutting owner convey the right of way 
 to a railroad company, he is not entitled to additional dam- 
 ages upon the subsequent construction of a side track upon 
 such right of way.^^ Neither can he enjoin the construction 
 of an electric street railroad because it prevents the backing 
 up of a wagon or dray at right angles to the sidewalk for the 
 purpose of loading and unloading, where such method is 
 prohibited by city ordinance.^^ Nor can he cut a feed wire 
 erected across the sidewalk in front of his property, because 
 the company has only the right to construct a single track 
 in the street, and is proceeding to place two tracks therein. 3' 
 Several abutting owners may join as plaintififs in an action 
 to abate and restrain a public nuisance created by maintain- 
 ing or operating an unauthorized street railroad in the street 
 along their property, although the special injury to each lot- 
 owner is separate and distinct from other special injuries. 
 So too they may join to restrain the threatened construction 
 of such road unless there is something in the statutes, or 
 practice, of the particular State to prevent.'"' Where in one 
 
 36. Henderson Belt R. Co. v. Columbus St. R. Co., (Ohio C. P.) 
 Dechamp, 95 Ky. 219, 16 Ky. L. 28 Ohio L. J. 172. 
 
 Rep. 82, 24 S. W. 60s. 39- Paterson R. Co. v. Grundy, 4 
 
 37. San Antonio & A. P. R. Co. Am. Electl. Cas. 173, Si N. J. Eq. 
 V. Faires, (Tex. Civ. App.) 26 S. (6 Dick.) 213, s6 Am. & Eng. R. 
 W. 82; Carson v. Central R. Co., Cas. 486, 26 Atl. 788. 
 
 3S Cal. 32s. 4°- Taylor v. Bay City St. Ry. 
 
 38. Louisville Bagging Mfg. Co. Co., 80 Mich. T7, 45 N. W. 335- 
 V. Central Pass. R. Co., 9S Ky. so. In the case cited the court, per 
 44 Am. St. Rep. 203, is Ky. L. Grant, J., said: "The complain- 
 Rep. 417, 23 S. W. S92; Sells v. ants were alike affected by the con- 
 
154 STREET SURFACE RAILROADS. 
 
 of these equity suits, the sole plaintiff conveys the property 
 pending the litigation, he may, in New York, make a timely 
 motion on notice to the defendant for an order bringing in 
 his grantee, and when the record is so amended, the trial 
 may proceed as if the conveyance had not been made*' 
 And in case of a conveyance of the plaintiff's land pending 
 the litigation, a court of equity may, upon the trial, admit 
 the new parties to the record, when they ask to be heard and 
 when their presence is necessary for a complete determina- 
 tion of the controversy, the defendant being permitted to 
 meet the new situation in any way it could be met after the 
 service of a supplemental complaint.'*^ In New York also 
 an action may be brought by an abutting owner suffering 
 special injury because of an unauthorized use of the street 
 by a railroad company, for an injunction and damages down 
 to the time of trial; and the court may, unless the company 
 is a wanton trespasser, ascertain the plaintiff's damages on 
 the assumption that the use claimed to be wrongful would 
 continue permanently, and direct that upon tender of con- 
 veyance of the right by plaintiff, defendant should pay the 
 permanent damages, or otherwise that injunction should 
 
 struction of this road. They were v. Brown, 120 Mass. 493; Pettibone 
 
 alike interested to restrain its con- v. Hamilton, 40 Wis. 402. But 
 
 struction. Their interests were, see to the contrary, Moran v. Ly- 
 
 therefore, common. There was decker, 27 Hun (N. Y.), 582; 
 
 but one object to be accomplished Hinchman v. Paterson Horse R. 
 
 and no necessity existed for a mul- Co., 17 N. J. Eq. (2 C. E. Green) 
 
 tiplicity of suits. The defendant was 75. 
 
 not prejudiced by the joinder of 41. Koehler v. N. Y. El. R. 
 
 complainants. We see no objec- Co., 159 N. Y. 218, 53 N. E. 
 
 tion to parties joining in a suit, the 11 14. 
 
 sole purpose of which is to obtain 42. Mooney v. N. Y. El. R. 
 
 an injunction to restrain the com- Co., 163 N. Y. 242, 57 N. E. 496, 
 
 mission of an act threatened by one 31 Civ. Pro. (N. Y.) 49; revg. 13 
 
 party, and alike injurious to the in- App. Div. (N. Y.) 380; 43 N. Y. 
 
 terests of all." And see Cadigan Supp. 35. 
 
EMINENT DOMAIN. 1 55 
 
 issue.''^ One who lives adjacent to a street railway and owns 
 considerable property there which he has improved relying 
 upon the facilities afforded by the line has a material indi- 
 vidual interest which entitles him to be a relator in man- 
 damus to enforce the operation of the line/'' It is the duty 
 of the court to determine from the evidence what number 
 and length of switches are necessary for turnouts for a street 
 railway company under a resolution of road commissioners 
 authorizing it to extend its line along a road south of the 
 center thereof, except at points where crossovers, switches, 
 and turnouts are required, where the company is attempting 
 to double track its road, or at least a large portion of it.'*^ 
 
 § 5. Eminent domain. — The true definition for eminent 
 domain under constitutional provision for its exercise is " the 
 sovereign power, vested in the State to take private property 
 for public use, providing first a just compensation therefor."''^ 
 " The power of eminent domain which resides in the State 
 as an attribute of sovereignty, is nevertheless dormant until 
 called into exercise by an act of the legislature. Until a 
 statute authorizes the exercise of the power, it is latent and 
 potential merely, and not active and efficient, and the State 
 can neither exercise the prerogative, nor can it delegate its 
 exercise except through the medium of legislation. There- 
 fore it is wherever an attempt is made either by the officers 
 of the State or by a corporation organized for a public pur- 
 pose to take private property under the power of eminent 
 domain, the officers or body claiming the right must be able 
 
 43 Galway v. M. E. R. Co., 128 45- Willis v. Erie City Pass. R. 
 
 N. Y. 132, 28 N. E. 479. Co., 188 Pa. St. 56, 41 Atl. 607. 
 
 44. State, Grusfelder V. Spokane 46. Trenton Cut-off R. Co. v. 
 
 St. Ry. Co., 19 Wash. 519, 4^ L- Newton, etc., Ry. Co., 8 Pa. Dist. 
 
 R. A. 551, II Am. & Eng. R. Cas. 549- 
 (N. S.) 62, S3 Pac. 719- 
 
156 STREET SURFACE RAILROADS. 
 
 to point to a statute conferring it. In the absence of statu- 
 tory authority private property cannot be invaded by this 
 power, however strong may be the reasons for the appro- 
 priation. In construing statutes which are claimed to 
 authorize the exercise of the power of eminent domain, a 
 strict rather than a Hberal construction is the rule. Such 
 statutes assume to call into active operation a power which, 
 however essential to the existence of the government, is in 
 derogation of the ordinary rights of private ownership and 
 of the control which an owner usually has of his property. 
 The rule of strict construction of condemnation statutes is 
 especially applicable to the delegation of the power by the 
 legislature to private corporations. The motive of the pro- 
 motors of such enterprises is usually private gain, although 
 their creation may subserve a pubHc purpose. When such 
 corporations claim to exercise this delegated power, the' rule 
 of strict construction accords with the ordinary rule that 
 delegations of public powers to individuals or private cor- 
 porations are to be strictly construed in behalf of the public, 
 and by the other principle that private rights are not to be 
 divested except by clear warrant of law."'*' Where provision 
 is made for the exercise of this power and to institute pro- 
 ceedings before a tribunal especially authorized and empow- 
 ered, upon the failure to obtain the consent of the property- 
 owners, the determination of that tribunal, in lieu of the 
 consent, when made within its jurisdiction and upon proper 
 notice, is conclusive upon all parties and may not be ques- 
 tioned collaterally.*^ But the power can be exercised only 
 
 47. Matter of Poughkeepsie 112 N. Y. 61, 20 St. Rep. (N. Y.) 
 Bridge Co., 108 N. Y. 483, 490, 15 498, 19 N. E. 664. 
 
 U. E. 601. The proceeding by the court is 
 
 48. Matter of Union El. R. Co., judicial and not administrative; 
 
EMINENT DOMAIN. 
 
 157 
 
 for the purposes of the company's incorporation. Therefore 
 a railroad company organized to operate a street railroad 
 cannot condemn private property in order to construct its 
 road substantially without the streets.'*^ And under a statute 
 
 the proceeding therefore must be 
 committed to a court having juris- 
 diction over the land taken. Prop- 
 erty outside of a city cannot be 
 condemned in a city court having 
 no extra-territorial jurisdiction. 
 Re Buffalo, 139 N. Y. 422, 54 St. 
 Rep. (N. Y.) 692, 34 N. E. 1103. 
 
 49. Matter of S. B. R. Co., 119 
 N. Y. 141, 23 N. E. 486. In the 
 case cited the court said (p. 145): 
 " The power is not general or un- 
 limited. The company cannot con- 
 demn what it pleases, but only 
 such and so much land as the 
 proper execution of its corporate 
 purposes shall require and render 
 necessary. What then were the 
 purposes of the corporation of the 
 South Beach Railroad Company? 
 Obviously they are those, and 
 those only, which the law of its 
 organization describes and de- 
 fines, and which are certified on 
 its articles of association, operat- 
 ing, when filed, as its charter and 
 measure of its authority. Refer- 
 ring to those we see that the cor- 
 porate purposes were not to build 
 a railroad between specified ter- 
 mini by the most feasible route, 
 which is characteristic of an ordi- 
 nary railroad, but to build and 
 operate a street railroad, such as 
 the act of 1884 contemplates and 
 regulates; and not only that, but 
 one running along three specified 
 avenues in the town of Edgewater 
 and not at all through or along 
 private property. Such are the 
 
 prescribed and declared purposes 
 of the incorporation, and the com- 
 pany, it may be conceded, might 
 have the right to acquire by con- 
 demnation such and so much of 
 private property as should be rea- 
 sonably necessary to accomplish 
 those purposes. Now the chief 
 element of a street railway, as au- 
 thorized by the act of 1884, is that 
 it is built upon and passes along 
 streets and avenues for the con- 
 venience of those living or mov- 
 ing thereon. Its fundamental pur- 
 pose is to accommodate the street 
 travel, and its motive power is 
 dictated and regulated to that end; 
 and while, consistently with its 
 general object, it may need for 
 switches or storage, or stables or 
 stations, the land of private own- 
 ers, yet that necessity is only in- 
 cidental to the main purpose of a 
 line along the streets to accommo- 
 date the street travel. Here the 
 land of Mrs. Brynes is needed to 
 build the main and principal part 
 of the line, only that it may avoid 
 the streets altogether. The act 
 of 1884 stamps an indelible mark 
 upon the corporations which it or- 
 ganizes. The consent of the local 
 authorities is to be obtained, and 
 that of a certain portion of the 
 abutting owners, or in default of 
 the last the certificate of chosen 
 commissioners. Every step of the 
 way, through all the conditions of 
 the act, it plainly contemplates a 
 railway along the streets and ave- 
 
158 STREET SURFACE RAILROADS. 
 
 authorizing a corporation to be formed for the purpose of 
 constructing a railroad for public use in the conveyance of 
 " persons and property " and giving such a corporation all 
 the privileges of a railroad corporation, including eminent 
 domain, the formation of a railroad corporation for the pur- 
 pose of carrying persons only is not authorized and a cor- 
 poration so organized cannot maintain condemnation pro- 
 ■ceedings.s" So too an act providing that when it is necessary 
 for the construction of a street railroad, or for the necessary 
 sidings, to take or damage private property, the same may 
 be done and the compensation therefor made, as provided 
 by law in eminent domain proceedings, does not authorize a 
 street railroad to take private property for a right of way, 
 though an ordinance of a city authorizes it to lay its tracks 
 on the streets thereof over a part of its route, and over private 
 property as to the balance thereof, as the refusal of the 
 council to permit the company to lay its tracks in the streets 
 ior the whole distance is not such a necessity as would 
 authorize it to exercise the power of eminent domain.^' 
 
 nues of a village or city. The poses and cease to be a street rail- 
 petitioner chose to organize un- way at all. 
 
 der that act, to build and operate 50. Chicago & N. W. Ry. Co. 
 the kind and character of a rail- v. Oshkosh, A. & B. W. R. Co., 
 way which it contemplated, to de- 107 Wis. 192, 83 N. W. 294. And 
 dare in precise terms that the ob- see In re Minneapolis & St. L. R. 
 jects of its incorporation were Co., 76 Minn. 302, 79 N. W. 304- 
 exactly those of a street railway 51. Dewey v. Chicago & M. El. 
 along named avenues of the vil- Ry. Co., 184 111. 426, 56 N. E. 804. 
 lage of Edgewater. It is very A street railroad company author- 
 plain therefore that none of the ized by its original charter to ac- 
 land of Mrs. Brynes is required quire a right of way provided its 
 for the purposes of its incorpora- road shall be completed and in 
 tion by the South Beach Railway operation within two years, in de- 
 Company, but that the property is fault of which the act was to be 
 wanted to enable the company to void, and which by a supple- 
 disown and abandon these pur- mentary act is authorized to con- 
 
EMINENT DOMAIN. I en 
 
 Where a street railroad company is authorized by its charter 
 to leave the public highway in case of necessity and condemn 
 private property, it must make a return thereto as soon as 
 practicable.^^ The word " necessity " as used in the act can- 
 not be hmited to an absolute physical necessity, but should 
 be construed to mean expedient, reasonably convenient, or 
 useful to the pubHc." Such necessity exists when by leaving 
 the highway and going onto private property, excessive 
 gradients and dangerous grade crossings may be avoided.s* 
 But a city council cannot, by ordinance, direct the location 
 of the railroad upon private property; since private property 
 can only be condemned in cases of necessity under the statute 
 and not upon the judgment of a city council.ss The power 
 of eminent domain can only be exercised for a public pur- 
 pose. Therefore a railway company cannot maintain con- 
 demnation proceedings, where its termini are upon or entirely 
 surrounded by the lands of another corporation for the con- 
 demn land for the construction of Si N. W. 903; Pettingill v. Porter, 
 a branch line, subject to all the 8 Allen (Mass.), i, 85 Am. Dec. 
 duties and responsibilities which 671; Hays v. Briggs, 3 Pittsb. 504. 
 devolved upon the corporation in 54. Aurora & G. R. Co., supra. 
 
 Tespect to its original line, cannot 55. Harvey v. Aurora & G. Ry. 
 
 condemn lands after its failure to Co., 186 111. 283, 57 N. E. 857. 
 complete the branch line within The case cited also held that it 
 two years. Williamson v. Gordon is not necessary to the exercise of 
 Heights R. Co. (Ch.), 40 Atl. 933, the power to condemn private 
 14 Am. & Eng. R. Cas. (N. S.) property for the construction of a 
 809. street railroad that the consent of 
 
 52. Aurora & G. R. Co. v. Har- the city be obtained as that may 
 ■vey, 178 111. 477, S3 N. E. 331. See be secured subsequently. But see 
 Harvey v. Aurora & G. R. Co., Town of Lysander v. S. L. & B. 
 174 111. 29s, 51 N. E. 163, 30 Chic. R. Co., 31 Misc. Rep. (N. Y.) 330, 
 Leg. N. 401, 17 Nat. Corp. Rep. and Re Rochester El. Ry. Co., 123 
 66. N. Y. 3SI, 46 Am. & Eng. R. Cas. 
 
 53- Aurora & G. R. Co. v. Har- iS7, 32 St. Rep. (N. Y.) 69s, 25 
 vey, supra; Coates v. New York, N. E. 381, holding that the statu- 
 7 Cow. (N. Y.) s8s; Commission- tory consents are an essential pre- 
 •ers, etc. v. Moesta, 91 Mich. 149, requisite. 
 
i6o 
 
 STREET SURFACE RAILROADS. 
 
 venience of which it was chiefly organized, its only business 
 being to transport the property of such corporation and to 
 transport coal under special contract with one individual.^* 
 It cannot maintain proceedings to quiet its title to lands 
 which it claims already to own, nor for the purpose of com- 
 pelling specific performance of a contract entered into by it 
 with other persons.^^ The question whether or not it is 
 improperly exercising its franchise cannot be raised on a 
 condemnation proceeding; but only by the people in a pro- 
 ceeding instituted for that purpose.^* It must however be 
 a body corporate, de jure; it cannot maintain the proceeding 
 if it is simply a de facto corporation. The constitutional pro- 
 tection of the rights of private property requires that the 
 powers granted be strictly pursued and all the prescribed 
 conditions performed.^^ Usually the power to condemn 
 
 56. Re Split Rock Cable Road 
 Co., 128 N. Y. 408, 28 N. E. 506, 
 40 St. Rep. (N. Y.) 334, II Ry. & 
 Corp. L. J. 20. 
 
 57. Florence, etc., R. Co. v. 
 Lilley, 3 Kan. App. 588, 43 Pac. 
 857. 
 
 In New York the statute pro- 
 vides that the proceedings may be 
 maintained, where title to real es- 
 tate has been acquired or at- 
 tempted to be acquired, and has 
 been found to be invalid or de- 
 fective. The Railroad Law, chap. 
 39 of Gen. Laws, art. 1, § 7, chap. 
 565 of 1890, 3 Heydecker's Gen. 
 Laws (2d ed.), 3257. And see Re 
 P. P. & C. L R. Co., 67 N. Y. 
 371, 376. 
 
 58. Thomas v. St. Louis, etc., 
 R. Co., 164 111. 634, 46 N. E. 8. 
 
 59- N. Y. Cable Co. v. Mayor, 
 etc., of N. Y., 104 N. Y. i, 10 
 N. E. 332; New Albany & Salem 
 
 R. Co. V. O'Daily, 13 Ind. 353. 
 But see to the contrary, Thomas 
 V. St. Louis, etc., R. Co., 164 111. 
 634; supra, 46 N. E. 8. In the 
 case first cited, upon a motion for 
 a reargument, the court, per 
 Rappallo, J., page 43, said: " In 
 order to sustain proceedings by 
 which a body claims to be a cor- 
 poration, and as such empowered 
 to exercise the right of eminent 
 domain, and under that right to 
 take the property of a citizen, it 
 is not sufficient that it be a corpo- 
 ration de facto. It must be a cor- 
 poration de jure. Where it sought 
 to take the property of an indi- 
 vidual under powers granted by 
 an act of the legislature to a cor- 
 poration to be formed in a par- 
 ticular manner therein directed, 
 the constitutional protection of the 
 rights of private property re- 
 quires that the powers granted by 
 
EMINENT DOMAIN. 
 
 l6l 
 
 property to their use is conferred upon railroad corporations 
 by statute.*" And where the company has complied with all 
 the preliminary steps required by the legislature, its decision 
 as to the extent, nature, and propriety of the taking of land 
 for the purposes of its organization is as conclusive as when 
 made by the legislature itself.*' The statute conferring the 
 power does not limit its exercise to a pubHc use, but may 
 
 the legislature be strictly pursued 
 and all the prescribed conditions 
 be performed. Where the power is 
 conferred upon a corporation, duly- 
 formed, it will not be defeated 
 simply because the corporation 
 has done or omitted some act 
 which may be a cause of forfeiture 
 of its rights and franchises, for it 
 rests with the State to determine 
 whether such forfeiture shall be 
 enforced. Judicial proceedings are 
 necessary to enforce such a for- 
 feiture and it may be waived. 
 That was the point to which the 
 opinion in the Matter of the 
 Brooklyn, etc.. Railroad Co., 72 
 N. Y. 24s, cited by the appellant' 
 was directed. It was assumed that 
 this distinction was well under- 
 stood, and a considerable portion 
 of the opinion of this court in the 
 present case was devoted to show- 
 ing that the omissions and defects 
 in the organization of the company 
 were failures to comply with the 
 conditions precedent to the exist- 
 ence of the petitioner as a corpora- 
 tion, and the exercise by it of the 
 rights of eminent domain, instead 
 of being mere causes of forfeiture 
 of rights acquired. 
 
 60. The N. Y. Stat., the Rail- 
 road Law, chap. 39 of Gen. Laws, 
 chap. 565 of 1890, § 4, 3 Heydeck- 
 
 er's Gen. Laws (2d ed.), 3252, is 
 as follows: 
 
 " § 4. Additional powers con- 
 ferred — Subject to the limitations 
 and requirements of this chapter, 
 every railroad corporation in ad- 
 dition to the powers given by the 
 General and Stock Corporation 
 Laws, shall have power. 
 
 « 1_ * * * _ 
 
 '' 3. Acquisition of real prop- 
 erty — To take and to hold such 
 voluntary grants of real estate and 
 other property as shall be made 
 to it to aid in the construction, 
 maintenance and accommodation 
 of its railroad; and to acquire by 
 condemnation such real estate and 
 property as may be necessary for 
 such construction, maintenance, 
 and accommodation in the manner 
 provided by law, but the real 
 property acquired by condemna- 
 tion shall be held and used only 
 for the purposes of the corporation 
 during the continuance of the cor- 
 porate existence." 
 
 61. N. Y., N. H. & H. R. Co. 
 v. Long, 69 Conn. 424, 37 Atl. 1070 ; 
 People, Herrick v. Smith, 21 N. Y. 
 59S; Ashe v. Cummings, 50 N. H. 
 591 ; National Docks R". Co. v. 
 Central R. Co., 32 N. J. Eq. 755; 
 United States v. Jones, 109 U. S. 
 513, 27 L. Ed. lOlS- 
 
 II 
 
l62 STREET SURFACE RAILROADS. 
 
 leave that question for the court's determination/^ So when 
 a suburban railroad company, authorized to condemn land 
 for its " corporate purposes " seeks to compel the transfer of 
 city land, five miles from the nearest point of its railroad for 
 a power-house, the court held that it was not a necessary 
 public use to erect a power-house on that particular lot.*^ 
 The proprietary right which a street railroad company has 
 in its tracks and right of way is itself subject to condemna- 
 tion/3 The United States condemned lands of such a com- 
 pany for the purpose of preserving the battlefield of Gettys- 
 burgh.*-* The construction of a public ditch across the right 
 of way of a railroad company, though the ditch be con- 
 structed by tiling under the surface, is an appropriation of 
 the company's property which entitles it to compensation for 
 the value of the interests so taken.^s 
 
 § 6. Proceedings to ascertain compensation. — The proceeding 
 for the ascertainment of the value of the property and the 
 consequent compensation to be made is merely an inquisi- 
 tion to establish a particular fact as a preliminary to the 
 actual taking; and it may be prosecuted before commission- 
 ers, or special boards or the courts, with or withou^ the 
 intervention of a jury as the legislative power may designate. 
 All that is required is that it shall be conducted in some fair 
 and just manner, with opportunity to the owners of the prop- 
 erty to present evidence as to its value and to be heard 
 
 62. Re R. I. Suburban Ry. Co. El. Ry. Co., 160 U. S. 668, 40 L. 
 (R. I.), 48 Atl. 591. Ed. 576. 
 
 63. Canal & C. St. R. Co. v. 65. Lake Erie & W. R. Co. v. 
 Crescent City R. Co., 41 La. Ann. Commissioners of Hancock Co., 
 561, 40 Am. & Eng. R. Cas. 329, 63 Ohio St. 23, 57 N. E. 1009. See 
 6 So. 849. Northwestern Tel. Exch. Co. v. 
 
 64. United States v. Gettysburg Railway Co., 76 Minn. 334, 79 N. 
 
 W. 31s. 
 
ASCERTAINING COMPENSATION. 
 
 163 
 
 thereon. Whether, when the United States seeks to con- 
 demn, the tribunal shall be created directly by an act of 
 Congress, or one already established by the States, shall be 
 adopted for the occasion, is a mere matter of legislative dis- 
 cretion.** All of the statutory requirements to entitle the 
 company to maintain the proceeding must exist and their 
 existence should be alleged in detail in the petition, unless 
 the statute prescribes the form of the petition. In New York 
 it is only necessary to state in literal compliance with the 
 Code Civ. Proc, § 3360, subd. 7, that all the preliminary 
 steps required by law have been taken to enable the plain- 
 tiff to institute the proceeding.^z Where right of way in a 
 street is sought to be condemned, it should accurately state 
 the frontage of the abutting owners whose rights are to be 
 
 66. United States v. Jones, 109 
 U. S. 513, 519, 27 L. Ed. lois, 1017; 
 Backus V. Fort St. Union Depot 
 Co., 169 U. S. 568, 42 L. Ed. 859, 
 18 Sup. Ct. Rep. 450; Bauman v. 
 Ross, 167 U. S. S93, 42 L. Ed. 289, 
 17 Sup. Ct. Rep. 983; Great Falls 
 Mfg. Co. V. Garland, 25 Fed. 524; 
 Morris v. Comptroller, 54 N. J. L. 
 273, 23 Atl. 665; Baltimore Belt R. 
 Co. V. Baltzell, 75 Md. 94, 51 Am. 
 & Eng.R. Cas. 66^, 23 Atl. 74; Mar- 
 tin V. Tyler, 4 N. Dak. 299, 60 N. 
 W. 399, 25 L. R. A. 846; Bigelow 
 V. Draper, 6 N. Dak. 165, 69 N. W. 
 S74. In Missouri either party upon 
 exceptions to report of commis- 
 sioners may have the amount of 
 damages assessed by a jury. Chi- 
 cago, S. F. & C. R. Co. V. Bates, 
 109 Mo. S3, 18 S. W. 1133; Same 
 V. Eubanks, 109 Mo. 54, 18 S. W. 
 1134; Same v. Miller, 106 Mo. 458, 
 17 S. W. 499, II Ry. & Corp. L. 
 J. 22. So also in Illinois, Davis v. 
 
 N. W. El. R. Co., 170 111. S9S, 
 48 N. E. 1058, 9 Am. & Eng. R. 
 Cas. (N. S.) 452; in West Virginia, 
 Charleston, etc., Co. v. Com- 
 stock, 36 W. Va. 263, 15 S. E. 
 69. 
 
 67. Rochester R. Co. v. Robin- 
 son, 133 N. Y. 242, 44 St. Rep. 
 (N. Y.) 872, 30 N. E. 1008. The 
 provisions of the statute must be 
 strictly pursued. Colorado C. R. 
 Co. v. Allen, 13 Colo. 229, 22 Pac. 
 60s; Toledo, etc., R. Co. v. Mun- 
 son, S7 Mich. 42, 23 N. W. 4SS; 
 State V. Farrelly, 36 Mo. App. 282; 
 Chicago, etc., R. Co. v. Chicago, 
 132 111. 372, 2Z N. E. 1036; Ames 
 V. Union Co., 17 Oreg. 600, 22 
 Pac. 118, 27 Am. & Eng. Corp. 
 Cas. 60. Wife of the owner of the 
 fee is an owner within New York 
 statute (Civ. Code, §§ 33S8-336o), 
 and her residence must also be 
 stated. Marcellus El. R. Co. v. 
 Crisler, 33 Misc. Rep. (N. Y.) i. 
 
164 STREET SURFACE RAILROADS. 
 
 acquired.** It need not state the grade of the road.** In 
 Wisconsin it should state that the route of the railroad has 
 been located and the lands described are required for the 
 construction and operation of the proposed railroad.*' In 
 Nebraska, the petition need neither be dated or verified nor 
 need it allege the exact position of the lands sought to be 
 condemned, or aver the act of incorporation of the railroad 
 company.7° If however the railroad company fails to de- 
 scribe in its petition or notice the particular tract of land it 
 intends thereby to condemn, in order to conceal its real pur- 
 pose and object, and its entire proceedings show that it in- 
 tends to obtain possession of the other company's right of 
 way without making compensation therefor, the condemna- 
 tion proceedings may be held void and the company may be 
 restrained from taking possession of the land, or interfering 
 with the possession of the occupant.^' Condemnation pro- 
 
 68. Bay City Belt Line R. Co. sought to be condemned, on file in 
 V. Hitchcock, 90 Mich. 533, 51 N. the county clerk's office. Still- 
 W. 808. In Nebraska a description water & M. St. R. Co. v. Slade, 36 
 by government subdivision of the App. Div. (N. Y.) 587, 55 N. Y. 
 lands affected, within an incorpo- Supp. (89 St. Rep.) 966. If the 
 rated city which has been laid out map does not show the parcel it 
 and plotted into lots and blocks, is insufficient. Marcellus El. R. 
 is insufficient. Omaha & R. V. R. Co. v. Crisler, 33 Misc. Rep. (N. 
 Co. V. Rickards, 38 Nebr. 847, 57 Y.) i. 
 
 N. W. 739. 70. Trester v. Mo. P. R. Co., 33 
 
 69. Winnebago Furniture Mfg. Nebr. 171, 49 N. W. mo, 10 Ry. 
 Co. v. Wisconsin M. R. Co., 81 & Corp. L. J. 47. 
 
 Wis. 389, 51 N. W. 576. In New 71. Union Terminal R. Co. v. 
 York, where the center line of the Kansas City Belt Ry. Co., 9 Kan. 
 proposed railroad was actually App. 281, 60 Pac. 541. A railroad 
 staked out upon the ground, a de- company petitioning to condemn 
 scription in the petition beginning whatever " property rights, interest 
 at a center station on said center or privileges " another corporation 
 line was held sufficient, although may have in certain streets by con- 
 the referee found that the station tract with the city is estopped to 
 could not be ascertained without deny that the other has any inter- 
 reference to the map of lands est in what is sought to be con- 
 
ASCERTAINING COMPENSATION. 1 65 
 
 ceedings may be discontinued, with the permission of the 
 court at any time before the award of compensation is 
 actually filed, unless the statute clearly provides otherwise. 
 Provision that the commissioners shall proceed to perform 
 their duty on demand of either party and file their report 
 within a specified time will not preclude such discontinue 
 ance7^ But where the landowner has procured a preliminary 
 injunction restraining the construction of the road which is 
 vacated upon a stipulation that the company should vigor- 
 ously prosecute its proceedings to acquire a right to operate 
 the road and should give an undertaking of indemnity, it 
 will not be permitted to discontinue its proceedings taken in 
 accordance therewith unless the landowner consents/^ In 
 New York the landowner must institute proceedings to re- 
 view the location of a proposed extension of a railroad within 
 fifteen days after notice; otherwise he cannot raise the ques- 
 tion of location in a proceeding to condemn his land for that 
 purpose.^'* Commissioners of appraisal appointed in pro- 
 ceedings to condemn land for the uses of a railroad company 
 are not disqualified because they were formerly owners of 
 
 demned. (Met. St. Ry. Co. v. Chi- city may abandon the proceedings 
 
 cago West Division R. Co., 87 111. even after award without rendering 
 
 317.) The right of a company op- itself liable for the amount thereof 
 
 crating a horse railway by contract in an action of assumpsit, as the 
 
 with the city not to have a similar proceeding merely fixes the amount 
 
 railway on certain streets parallel to be paid before the property can 
 
 therewith is " property " within the be lawfully taken. Chicago v. 
 
 Eminent Domain Act, is subject to Hayward, 176 111. 130, 52 N. E. 26, 
 
 condemnation thereunder, and is revg. 60 111. App. 582; Pearce v. 
 
 no part of the franchise. Id. Per- Chicago, 176 111. 152, 52 N. E. 27, 
 
 mission from the city to locate such affg. 67 111. App. 671. 
 
 road is not necessary to authorize 73- R^ Southern Boulevard R, 
 
 the condemnation. Id. Co., 43 St. Rep. (N. Y.) 611. 
 
 72. Milwaukee & L. W. R. Co. 74- Stillwater & M. St. R. Co. 
 
 v. Stolze, loi Wis. 91, 76 N. W. v. Slade, supra. 
 1 1 13. In Illinois it is held that a 
 
1 66 STREET SURFACE RAILROADS. 
 
 stock and incorporators of the predecessor of the company^ 
 bringing the proceeding, where they no longer hold any 
 stock and have no interest in the company, ^s Proceedings 
 before such commissioners are not conducted on the strict 
 line of trials before courts.^* They may properly be in- 
 fluenced in their appraisal by their personal inspection and 
 examination of the premises.^^ The right of the landowner 
 whose property is being " taken " to ride on the road to be 
 constructed, on paying the usual rate of fare, is part of the 
 " public use," the benefits arising from which cannot be con- 
 sidered in ascertaining his proper compensation.'® The 
 inability to agree upon the compensation to be paid cannot 
 be alleged and proved as a conclusion. But the facts show- 
 ing the inability must be alleged in sufficient detail so that 
 the court may say if the allegation were proven the inability 
 to agree would be established. If it appear from the testi- 
 mony, that there is an irreconcilable difference in opinion as 
 to the value of the property being "taken " the inability to 
 agree is proved.^' In a proceeding by a company to con- 
 demn lands, where the charter of the company permits it 
 
 75. Re Brooklyn El. R. Co., 32 Co. v. Simpson, 45 Kan. 714, 26 
 App. Div (N. Y.) 221, 52 N. Y. Pac. 393. A charter making a 
 Supp. (86 St. Rep.) 997. street railway company liable 
 
 76. Re Staten Island Midland R. whenever property on a street 
 Co., 22 App. Div. (N. Y.) 366, 48 " upon or over which the rails 
 N. Y. Supp. (82 St. Rep.) 274. * * * shall be laid, shall be in- 
 
 77- Re Daly, 26 App. Div. (N. jured thereby " does not create a 
 
 Y.) 326, 49 N. Y. Supp. (83 St. liability for injuries resulting from. 
 
 Rep.) 795; Davis v. Northwestern or incident to, the laying of them. 
 
 El. R. Co., 170 111. 505, 48 N. E. although these are not restricted 
 
 1058, 9 Am. & Eng. R. Cas. (N. to direct and physical injuries. 
 
 S) 452. Vose v. Newport St. R. Co., 17 
 
 78. Lewiston, etc., R. Co. v. R. I. 134, 20 Atl. 267. 
 
 Ayer, 27 App. Div. (N. Y.) 571, 79. Trotier v. St. Louis, etc., R. 
 
 50 N. Y. Supp. (84 St. Rep.) Co., 180 III. 471, 54 N. E. 487; To- 
 
 502 ; Inter-State Cons. R. T. ledo, etc., R. Co. v. Toledo EI. St 
 
COMPENSATION. 1 6/ 
 
 to construct and operate its railroad into and between two 
 cities, and the objection is made that it would be impossible 
 for the railroad to construct and operate a continuous road 
 as contemplated, because they could not get the requisite 
 consent in the highway between the two cities, evidence 
 would be proper that the company could and would acquire 
 the property contiguous to such public road.®° Even though 
 the award, considered only from the evidence as found in the 
 record might be thought excessive, it will not be set aside. 
 The presumption must be, in the absence of anything to the 
 contrary appearing in the record, that the commissioners 
 acted within the law and that the award is supported by the 
 facts which came within the scope of their inquiry, including 
 their view of the premises.*' 
 
 § 7. Compensation. — The adaptibility of the landowner's 
 property sought to be taken in condemnation proceedings 
 in its present state and surroundings, for other and more 
 valuable purposes than those to which it has been put, is a 
 proper element to be considered in determining its market 
 value; but its possible value under circumstances and con- 
 ditions which do not exist but which the owner may intend 
 to create cannot be considered.*^ If it be so situated that it 
 has no market value, then resort may be had to material 
 
 R Co 6 Ohio C. C. 362; Carlisle 82. Five Tracts of Land in Cum- 
 
 V ' Des Moines, etc., R. Co., 99 berland Township, Adams Co., Pa. 
 
 Iowa 345 68 N. W. 784; Marcellus v. United States, loi Fed. 661, 41 
 
 El R. Co. V. Crisler, 33 Misc. Rep. C. C. A. 580; Chicago, etc., R. Co. 
 
 (jj Y) I V. Dresel, no 111. 89; Hulett v. 
 
 80 Almand v. Atl., etc., Co., 108 Mo., K. & T. Ry. Co., 80 Mo. App. 
 Ga. 417, 34 S. E. 6. 87, 2 Mo. App. Rep. 527; Kay v. 
 
 81 Harlem River, etc., Co. v. Glade Creek & R. Co. (W. Va.), 
 Reynolds, 50 App. Div. (N. Y.) 35 S. E. 973; Kansas, etc., Ry. 
 575, 64 N. Y. Supp. (98 St. Rep.) v. Northwestern Coal^ & M. Co., 
 199. 
 
 — Mo. — , 51 L. R. A. 936. 
 
1 68 STREET SURFACE RAILROADS. 
 
 circumstances showing or tending to show the amount of 
 compensation which should be made.*^ If there be no 
 permanent injury then the difference between fair rental 
 values with and without the railroad furnishes the proper 
 criterion. If the owner is not entitled to the possession, 
 compensation cannot be made to him for the difference in 
 rental value with or without the railroad during the time of 
 the lease.*^ An ordinance granting a franchise to construct 
 a street car line and to erect poles for trolley wires is not 
 invalid for failure to provide for compensation to the abutting 
 property-owners, on the theory that the trolley wires and 
 poles are an additional burden on the fee, where it does not 
 appear that they will interfere with access to the abutting 
 property.*^ The phrase " just compensation " as used in the 
 statutes and ordinances has the same meaning which it has 
 -when used in the Federal and State Constitutions with 
 respect to the right of eminent domain; and when thus used, 
 " means a fair and full equivalent fdr the loss sustained by 
 taking for the public use."^^ It consists in making the owner 
 good by an equivalent in money for the loss he sustains in 
 the value of his property by being deprived of a portion 
 of it.87 
 
 § 8. Consolidation. — By statute in most of the States, con- 
 solidation of street surface railroad companies is allowed if 
 the lines of road operated by them would form one con- 
 
 83. Chicago, etc., Ry. Co. v. Chi- kee El. Ry., etc., Co. (Wis.), 83 N. 
 cago & Evanston R. Co., 112 111. W. 851. 
 
 589- 86. Grand Ave. Ry. Co. v. Peo- 
 
 84. Carli V. Union Depot St. Ry., pie's Ry. Co. (Mo. Sup. Ct.), 6 
 etc., Co., 32 Minn. loi, 20 N. W. Am. Electl. Cas. 99; Lewis Em. 
 89; Chicago, etc., Co. v. Dresel, Dom., § 462. 
 
 ^"t"'"- 87. Bigelow V. Railway Co., 27 
 
 85. Linden Land Co. v. Milwau- Wis. 478. 
 
CONSOLIDATION. 169 
 
 tinuous line of road. The phrase " form a continuous or 
 <:onnected.line of railroad with each other," used in the New 
 York statute allowing consolidation of railroads, means a 
 line or route extending or continuing in substantially the 
 same general direction. It excludes the idea of a plurality 
 of lines, and requires that the consolidated roads must form 
 one instead of two or more lines. The consolidation of lines 
 parallel or practically so is prohibited.** An act expressly 
 giving power to one corporation to consolidate with any 
 other like corporation is sufficient for the purpose. One cor- 
 poration cannot form a consolidation unless it finds another 
 with which to unite and which is capable of union with it; 
 hence, whatever other company it selects for a union, and 
 linds willing to join it, that other company, though not named 
 in the statute, gets power from the statute to unite with that 
 company which the statute names.*^ If the act provides that 
 a street surface railroad company may from time to time 
 " consolidate its capital stock and property with the capital 
 stock and property of any street surface railroad company 
 incorporated or to be hereafter incorporated for the purpose 
 of building or operating any street surface railroad," com- 
 panies may consoHdate which have not yet obtained the 
 necessary consents to the building of the roads located by 
 them, and of course had not entered upon the work of con- 
 struction, but were duly incorporated under the General 
 Railroad Law and had located their routes.^" A corporation 
 
 88. People v. Boston, H. T. & 89. Re P., P. & C. I. R. Co., 67 
 
 W. Ry. Co., 12 Abb. N. C. (N. Y.) N. Y. 371, 277- 
 
 230; N. Y. Railroad Law, § 70 et 90. Bohmer v. Haffen, 161 N. Y. 
 
 seq.: 3 Heydecker's Gen. Stat. (2d 390, 412, 55 N. E. 1047. The case 
 
 ed.) 3297; Re Washington St., etc., cited holds that the act of consoli- 
 
 R. Co., 52 Hun (N. Y.), 311, 5 N. dation is valid, although it does not 
 
 Y. Supp. 355; affd., 115 N. Y. 442. require the consents of abutting 
 
170 STREET SURFACE RAILROADS. 
 
 lormed by the consolidation of two or more companies holds 
 its property acquired by such consolidation in its own right, 
 and not in trust for the constituent companies.^' And where 
 all or nearly all of the property of the constituent companies 
 is turned over to the new corporation the latter is liable for 
 the debts of the several companies to the extent of the prop- 
 erty so turned over.'^ And has also all the obligations of its 
 constituent companies, like the paving, repaying, and repair- 
 ing of streets to perform.'^ But it would seem that a liability 
 of one of the several companies founded upon a tort must be 
 first established by judgment against it before it can be en- 
 forced against the consolidated company, unless the statute 
 makes the obligations of the several companies liabilities of 
 the consolidated company.^* Otherwise, where a railroad 
 company is consolidated with other companies under a new 
 name it ceases to exist as a corporation, and an action 
 brought by or against it before the consolidation cannot 
 
 owners and local authorities. In 93. Bohmer v. Haffen, supra; 
 
 a recent case in the New Jersey City of Philadelphia v. Ridge Ave. 
 
 Chancery Court, it was held that Pass. R. Co., 142 Pa. St. 484, 2Z 
 
 a de facto corporation could enter Atl. 695. 
 
 into a consolidation agreement; and 94. Chase v. Mich. Tel. Co., 80 
 
 that even if one of four constituent N. W. 717; Powell v. Railroad Co.,. 
 
 companies could not enter into a 42 Mo. 63; Pennison v. Railroad 
 
 consolidation it would not affect Co., 93 Wis. 344, 64 N. W. 702. In. 
 
 the agreement as to the other Maryland the act authorizing an 
 
 three. Re Trenton St. Ry. Co., 47 insolvent railroad company owing 
 
 •^t'- 819. a large mortgage indebtedness ta 
 
 91. Greene v. Woodland Ave. & the State, to consolidate with an- 
 W. S. St. R. Co., 62 Ohio St. 67, other railroad company, but pro- 
 56 N. E. 642; Indianapolis, etc., R. viding that existing liabilities shall 
 Co. V. Jones, 29 Ind. 465 ; Louis- continue to bind the company, does 
 ville, etc., Ry. Co. v. Boney, 117 not, when the consolidation is ef- 
 Ind. 501, 20 N. E. 432; 3 L. R. A. fected, release the company from 
 435- its liability to the State. Northern 
 
 92. U. S. Capsule Co. v. Isaacs, Central Ry. Co. v. Hering (Md.), 
 23 Ind. App. 533, 55 N. E. 832. 48 Atl. 461. 
 
CONSOLIDATION. I7I 
 
 afterward be prosecuted by or against it in its original name.'s 
 In a recent case in New York it appeared that two certain 
 street railroad companies in the city of Binghamton had 
 entered into a contract (subsequently legalized by legisla- 
 ture), with the city of Binghamton which provided " that in 
 lieu of all obligations on the part of the said Binghamton 
 and Fort Dickinson Railroad Company to keep the surface 
 of the streets and highways within the rails of its tracks, and 
 for one foot outside thereof and to the extent of its ties, in 
 good and proper repair and order, as required by the act 
 incorporating the said railway company, or by any other 
 provision of law, the said company shall hereafter pay to the 
 city of Binghamton one-fifth of the net cost of laying new 
 pavement between the rails of its tracks, and shall also pay 
 to the said city the sum of $1,036.22, the same being one- 
 fifth of the cost of paving between the rails of said company's 
 tracks on Chenango street north of the Erie railway, upon 
 the payment of which the said action now pending is to be 
 discontinued without costs to either party." The contract 
 further provided with respect to each of the said railroad 
 companies that it " shall inure to the benefits of and be bind- 
 ing upon " (the companies') " successors and assigns, and to 
 any company with which it may be hereafter merged or con- 
 soUdated," and that ''the terms and conditions herein set 
 forth shall apply and extend to any additions or extensions 
 of the tracks of said railway company." Thereafter these 
 companies were consolidated, and subsequent to such con- 
 PS. Wagner v. Atchison, etc., R. an action against a corporation, to 
 Co. (Kan. App.), s8 Pac. 1018. show that before action it was con- 
 And see Copp v. Colorado Coal & solidated with another corporation 
 Iron Co., 60 St. Rep. (N. Y.) 293, unless separate existence of the 
 29 Misc. Rep. (N. Y.) 109, where constituent corporations is pre- 
 it is held to be a good defense, in served by legislative enactment. 
 
172 STREET SURFACE RAILROADS. 
 
 solidation they consolidated with still another company, the 
 Court Street and East End Railroad Company. Subse- 
 quently the city of Binghamton paved Court street, upon 
 which the last company had constructed and was operating 
 the railroad before the consolidation, and assessed the con- 
 solidated company for one-fifth of the expense of paving 
 between the rails of its tracks on said street. At the suit of 
 an owner of abutting property, who insisted that the con- 
 solidated company was liable under the statute for the entire 
 expense of paving between its tracks and two feet in width 
 outside thereof, it was held that the contract in question did 
 not apply to the paving of Court street, and that the inten- 
 tion of the provision therein that it should " inure to the 
 benefits of and be binding upon its successors and assigns, 
 and to any company with which it may be hereafter merged 
 or consolidated," was, that if the property of the contracting 
 railroad corporation should be transferred to another cor- 
 poration, the exemption as to the streets in which the con- 
 tracting corporation operated its line shall inure to the 
 benefits of its successors, and that it was not intended to 
 extend the exemption of the tracks to other railroads whose 
 property was acquired by the consolidated corporation; that 
 the last railroad in the consolidation did not come within the 
 clause of the contract that " the terms and conditions herein 
 set forth shall apply and extend to any additions or ex- 
 tensions of the tracks of said railroad company.''^* The 
 phrase, " such terms as they may agree upon,"^' in a statute 
 authorizing the consolidation of railroad companies, relates 
 
 96. Kent V. Common Council of Trenton Pass. R. Co., 57 N. J. L. 
 
 Binghamton, 61 App. Div. (N. Y.) (28 Vroom) 212, 31 Atl. 238. 
 
 323, 70 N. Y. Supp. (104 St. Rep.) 97. Chevra Bnai Israel v. Chevra 
 
 465. And see State, Wilbur v. Bikur Cholim, 24 Misc. Rep. (N, 
 
CONSOLIDATION. 
 
 173- 
 
 to the mere administrative details attending the consoHda- 
 tion, and confers no substantive powers or rights.^* The 
 consolidation which results in the formation of a new com- 
 pany and not merely a merger of the constituent companies, 
 retaining their separate existence, is authorized by statutes 
 providing for the consolidation of companies under the name 
 of one of them, without saying it shall be under its charter, 
 and giving to the new company all the benefits, rights, fran- 
 chises, and property of the original companies.s9 In Mis- 
 souri, a new corporation m,ade by consolidation is liable to the 
 payment of the fees required by the State upon the creation 
 or organization of a new corporation.' Doubtless it would 
 be so held under the statute of each State authorizing con- 
 
 Y.) 189; Davis V. Cong. Tephila 
 Israel, 40 App. Div. (N. Y.) 424, 
 57 N. Y. Supp. lois; New York, 
 etc., Canal Co. v. Fulton Bank, 7 
 Wend. (N. Y.) 412; Blatchford v. 
 Ross, 5 Abb. Pr. (N. S.) 434, 54 
 Barb. (N. Y.) 42; People v. North 
 River Sugar Refining Co., 121 N. 
 Y. 582, 24 N. E. 834; Pearce v. 
 Madison, etc., R. Co., 21 How. (U. 
 S.) 441; Clearwater v. Meridith, 1 
 Wall. (U. S.) 39; Black v. 
 Delaware, etc.. Canal Co., 24 
 N. J. Eq. 455 ; State v. Bailey, 
 16 Ind. 46; Aspinwall v. Ohio 
 & M. R. Co., 20 id. 492, 83 
 Am. Dec. 329; Shelbyville, etc.. 
 Turnpike Co. v. Barnes, 42 Ind. 
 498; East Line, etc., R. Co. v. 
 State, 7S Tex. 434, 12 S. W. 6go; 
 Clinch v. Financial Corp., L. R. 5 
 Eq. 460; Charlton v. Newcastle, 
 etc., R. Co., 5 Jur. (N. S.) 1096; 
 In re Era Assurance Society, 30 
 Law J. Eq. (N. S.) 137; Wood v. 
 St. Paul's City Ry. Co., 42 Minn. 
 411, 44 N. W. 308; Topeka Paper 
 
 Co. V. Oklahoma Pub. Co., 7 Okla.. 
 220, 54 Pac. 455. 
 
 98. Adams v. Yazoo & M. V. R. 
 Co., yy Miss. 194, 24 So. 200. And 
 see as to effect- of Ohio act provid- 
 ing for consolidation. Shields v. 
 State of Ohio, 95 U. S. (5 Otto) 
 319, 24 L. Ed. 357. 
 
 99. Adams v. Yazoo & M. V. R.. 
 Co., supra. And see Indiana, etc., 
 R. Co. V. Jones, 29 Ind. 465; Louis- 
 ville, etc., Ry. Co. v. Boney, 117 
 Ind. 501, 20 N. E. 432; State, Nolin 
 V. Montana R. Co., 21 Mont. 221, 
 S3 Pac. 623, II Am. & Eng. R. Cas. 
 (N. S.) 353. A street car com- 
 pany having acquired the lines of 
 street railway of two other com- 
 panies under due authority and con- 
 sent may connect the lines so ac- 
 quired by laying its tracks on such 
 portions of a street of the city as 
 may be necessary to make the con- 
 nection. Brown v. Atlanta R. & P. 
 Co. (Ga.), 39 S. E. 71. 
 
 I. State, Houck v. Leuseur, 145., 
 Mo. 322, 46 S. W. 1075. 
 
174 STREET SURFACE RAILROADS. 
 
 :solidation where fees upon the creation or organization of 
 new corporations were required. Unless the statute provides 
 to the contrary, a stockholder in the constituent corporation 
 is not compelled to take stock in the consolidated corporation 
 in exchange for his stock in the old. He is entitled to have 
 the value of his stock judicially ascertained and paid for be- 
 fore the consolidation takes effect, and may restrain the con- 
 solidation until his rights in that regard are secured.^ A 
 stockholder may also prevent by action the directors of his 
 corporation, who are fraudulently undertaking to merge the 
 existence of the corporation into another competing insolvent 
 corporation. 3 
 
 § 9. Uae of tracks of other roads and traffic arrangements. — 
 
 The public has the reserved right to grant the use of street 
 railroad tracks to companies other than those constructing 
 them upon just compensation.'* Unless the statute expressly 
 requires it, the consent of the abutting owners is unnecessary. 
 The statutes of the several States provide for the use of the 
 
 2. State V. Bailey, i6 Ind. 46; Pass. R. Co. v. Wilson, 55 N. J. 
 
 Lauman v. Lebanon Valley R. Co., Eq. 273, 37 Atl. 476. 
 
 30 Pa. St. 42. And see Post v. 3. Becker v. Gulf City St. Ry. 
 
 Beacon Vacuum Pump and E. Co. Co., 80 Tex. 475. 
 
 <C. C. App., 1st C), S U. S. App. 4. St. Louis R. Co. v. Southern 
 
 271, 28 C. C. A. 431, 84 Fed. 371. R. Co., 105 Mo. 581, 46 Am. & 
 
 In the case last cited it was held Eng. R. Cas. i, 15 S. W. 1013; 
 
 that a minority shareholder, though affd. on rehearing, 16 id. g6o; 
 
 he has protested against the reor- New Orleans & C. R. Co. v. Canal 
 
 ganiiiation scheme, if he subscribe & C. R. Co., 47 La. Ann. 1476, 
 
 for his proportion of the stock of 17 So. 834. The city of New Or- 
 
 the new tompany at such a time as leans has the right to authorize 
 
 justifies the majority of stockhold- other roads to use the tracks, ties, 
 
 ers in assuming that the new com- rails, etc., of any street railroad 
 
 pany is authorized to receive the company operating upon the 
 
 transfer and carry on the business streets of said city. State, City of 
 
 of the old company, is estopped New Orleans v. King, 104 La. 
 
 from maintaining a suit to rescind 735, 29 So. 359. And see Sixth 
 
 the transfer. And see Trenton Ave. R. Co. v. Kerr, 72 N. Y. 330. 
 
TRAFFIC ARRANGEMENTS. 
 
 175 
 
 tracks of one corporation by another, the extent of such use, 
 how it may be obtained, and how the compensation should 
 be determined; they also generally provide for traffic arrange- 
 ments to be made by one company with another whereby 
 by contract the right to use the tracks of the other may be 
 obtained by the one to an extent exceeding the limit fixed 
 by statute.5 Where local authorities may annex conditions 
 
 S. N. Y. Stat. (Railroad Law, 
 art. IV, §§ 97-104, 3 Heydecker's 
 Gen. Laws [2d ed.], 3316-3320, 
 chap. 565 of 1890) provide as fol- 
 lows: 
 
 " § 97. Use of tracks of other 
 roads — Any railroad corporation 
 in this state, whose cars are run 
 or operated by horses or other 
 motive power, authorized by this 
 article, upon the surface of the 
 street, excepting in the city and 
 county of New York, may, for the 
 purpose of enabling it to connect 
 with and run and operate its cars 
 between its tracks, and a depot or 
 carhouse owned by it, run upon, 
 intersect and use, for a distance 
 not exceeding five hundred feet, 
 the tracks of any other railroad 
 corporation, the cars of which are 
 run and operated in like manner, 
 with the necessary connections 
 and switches for the proper work- 
 ing and accommodation of the cars 
 upon such tracks, and in con- 
 nection with such depot or car- 
 house, upon paying therefor such 
 compensation as it may agree upon 
 with the corporation owning the 
 tracks tc be run upon, intersected, 
 and used; and in case such corpo- 
 rations cannot agree upon the 
 amount of such compensation, the 
 same shall be ascertained and de- 
 
 termined in the manner prescribed 
 by the condemnation law. 
 
 " § 102. Construction of road 
 in street -where other road is 
 built — No street surface railroad 
 corporation shall construct, extend 
 or operate its road or tracks in 
 that portion of any street, avenue, 
 road or highway, in which a street 
 surface railroad is or shall be law- 
 fully constructed, except for neces- 
 sary crossings or, in cities, villages 
 and towns of less than one million 
 two hundred and fifty thousand in- 
 habitants over any bridges, with- 
 out first obtaining the consent of 
 the corporation owning and main- 
 taining the same, except that any 
 street surface railroad company 
 may use the tracks of another 
 street surface railroad company for 
 a distance not exceeding one thou- 
 sand feet, and if in a city having 
 a population of less than thirty- 
 five thousand inhabitants, except 
 Long Island City, for a distance 
 not exceeding fifteen hundred feet, 
 and in cities, villages and towns of 
 less than one million two hundred 
 and fifty thousand inhabitants shall 
 have the right to lay its tracks 
 upon, and run over and use any 
 bridges used wholly or in part as 
 a foot bridge, whenever the court 
 upon an application for commis- 
 
176 
 
 STREET SURFACE RAILROADS. 
 
 to their consent to the construction of a railroad in the street, 
 the company which accepts a grant containing a reservation 
 to the city of power to condemn parts of tracks to the joint 
 
 jioners shall be satisfied that such 
 use is actually necessary to con- 
 nect main portions of a line to be 
 constructed or operated as an in- 
 dependent railroad, or to connect 
 said railroad with a ferry, or with 
 another existing railroad, and that 
 the public convenience requires the 
 same, in which event the right to 
 use shall only be given for a com- 
 pensation to an extent and in a 
 manner to be ascertained and de- 
 termined by commissioners to be 
 appointed by the courts as is pro- 
 vided in the condemnation law, or 
 by the board of railroad commis- 
 sioners in cases where the corpo- 
 rations interested shall unite in a 
 request for such board to act. 
 Such commissioners in determin- 
 ing the compensation to be paid 
 for the use by one corporation of 
 the tracks of another shall con- 
 sider and allow for the use of 
 tracks for all injury and damage 
 to the corporation whose tracks 
 may be so used. Any street sur- 
 face railroad corporation may, in 
 pursuance of a unanimous vote of 
 the stockholders voting at a special 
 meeting called for that purpose by 
 notice in writing, signed by a ma- 
 jority of the directors of such cor- 
 poration, stating the time, place 
 and object of the meeting, and 
 serving upon each stockholder ap- 
 pearing as such upon the books of 
 the corporation, personally or by 
 mail, at his last known post-office 
 address, at least sixty days prior 
 ■to such meeting, guarantee the 
 
 bonds of any other street surface 
 railroad corporation whose road 
 is fully or partly in the same city 
 or town or in adjacent cities or 
 towns. (As amended by chaps. 
 306 and 676 of 1892, chap. 434 of 
 1893, and chap. 693 of 1894.) " 
 
 " § 103. Abandonment of part 
 of route. — Any street surface rail- 
 road corporation may declare any 
 portion of its route which it may 
 deem no longer necessary for the 
 successful operation of its road and 
 convenience of the public, to be 
 relinquished or abandoned. Such 
 declaration of abandonment may 
 be adopted by the board of di- 
 rectors of the corporation under 
 its seal, which shall be submitted 
 to the stockholders thereof at a 
 meeting called and conducted in 
 the same manner as required by 
 law for meetings of stockholders 
 for the approval of leases by rail- 
 road corporations for the use of 
 their respective roads. If the 
 stockholders shall at such meet- 
 ing, ratify and adopt such declara- 
 tion of abandonment, the secretary 
 of the company shall so certify un- 
 der seal of the corporation, upon 
 such declaration. Such declara- 
 tion shall then be submitted to the 
 board of railroad commissioners 
 for its approval, and if approved 
 by such board, such approval shall 
 be indorsed thereon or annexed 
 thereto, and the declaration so cer- 
 tified and indorsed shall be filed 
 and recorded in the office of the 
 secretary of state, and from the 
 
TRAFFIC ARRANGEMENTS. 
 
 1/7 
 
 use of other companies, when it is deemed necessary, upon 
 payment of just compensation, cannot repudiate such con- 
 ditions on the ground that the city has no statutory power 
 to make condemnation for such purpose.* The theory gen- 
 
 time of such filing, such portion 
 of the route designated in the dec- 
 laration shall be deemed to be 
 abandoned. (As amended by chap. 
 676 of 1892, and chap. 478 of 
 1900.) " 
 
 " § 104. Contracting corpora- 
 tions to carry for one fare; 
 penalty. — Every such corporation 
 entering into such a contract shall 
 carry or permit any other party 
 thereto to carry between any two 
 points on the railroads or portions 
 thereof embraced in such contract 
 any passenger desiring to make 
 one continuous trip between such 
 points for one single fare, not 
 higher than the fare lawfully 
 chargeable by either of such cor- 
 porations for an adult passenger. 
 Every such corporation shall upon 
 demand, and without extra charge, 
 give to each passenger paying one 
 single fare a transfer, entitling 
 such passenger to one continuous 
 trip to any point or portion of any 
 railroad embraced in such con- 
 tract, to the end that the public 
 convenience may be promoted by 
 the operation of the railroads em- 
 braced in such contract substan- 
 tially as a single railroad with 
 a single rate of fare. For every 
 refusal to comply with the re- 
 quirements of this section the cor- 
 poration so refusing shall forfeit 
 fifty dollars to the aggrieved 
 party. The provisions of this 
 section shall only apply to rail- 
 roads wholly within the limits of 
 12 
 
 any one incorporated city or vil- 
 lage. (As amended by chap. 676 
 of 1892.) " 
 
 Under the Indiana act of 1891 
 the city might authorize a street 
 railroad company to lay its tracks 
 on the same street on which other 
 tracks were laid but could not au- 
 thorize the use of such tracks, nor 
 could the rails of one be so laid 
 as to prevent or needlessly im- 
 pede the running of the other cars. 
 Citizens' St. R. Co. v. City R. Co. 
 (C. D. Ind.), 64 Fed. 647. 
 
 One street railway company can- 
 not run its cars over the tracks of 
 another company by virtue of the 
 provisions of the Illinois Consti- 
 tution declaring all railways con- 
 structed in the State public high- 
 ways and free to all persons for 
 the transportation of persons and 
 property thereon under such regu- 
 lations as may be prescribed by 
 law. Chicago Gen. R. Co. v. City 
 R. Co. (111. C. C), 27 Chic. 
 Leg. N. 423, 10 Nat. Corp. Rep. 
 651. 
 
 6. Mercantile Trust & Deposit 
 Co. of Baltimore v. Collins Park 
 & B. R. Co. (U. S. C. C. Ga.), loi 
 Fed. 347. In the case cited it ap- 
 peared that the city council of At- 
 lanta in a franchise granted to a 
 consolidated street railroad com- 
 pany, reserved to the city " the 
 right to condemn such portions of 
 said lines, not exceeding five 
 blocks, as may be necessary for 
 the allowing of other street car 
 
178 
 
 STREET SURFACE RAILROADS. 
 
 erally adopted in the several States, along the lines of which 
 statutes and ordinances regulating the matter are made, is 
 that if the construction of an additional track upon the street 
 would be an unnecessary obstruction to and interference with 
 
 companies to enter the central por- 
 tion of the city." It was held that 
 such reservation extended only to 
 those portions of the company's 
 lines within what might fairly be 
 considered the central portion of 
 the city, and did not authorize the 
 condemnation of portions of its 
 tracks outside of that limit, al- 
 though for the purpose of enabling 
 a new company to ultimately enter 
 the central portion of the city. It 
 was also held that the company 
 could not object to the exercise 
 of the power reserved in any 
 reasonable and proper manner; 
 that the city might, on deter- 
 mining the necessity for con- 
 demning portions of a company's 
 tracks for the use of another 
 company, properly authorize the 
 latter to institute proceedings in 
 its own name to make such con- 
 demnation in accordance with the 
 procedure prescribed in such cases 
 by the law of the State; that the 
 city council could determine when 
 the necessity existed to exercise 
 the right reserved, subject only to 
 the condition that its judgment 
 must be based on reasonable 
 grounds; and that the exercise ol 
 the power of condemnation, un- 
 der such reservation, as to a short 
 portion of track, is not reasonably 
 justified, when each company re- 
 quires but a single track and when 
 the street is of a sufficient width to 
 accommodate two tracks without 
 interference with the other travel 
 
 along it, or with each other. And 
 see Commonwealth v. Sycamore 
 St. Ry. Co., 3 Dauph. Co. Rep. 95, 
 30 Pittsb. Leg. J. (N. S.) 333; 
 Kinsman St. R. Co. v. Broadway, 
 etc., R. Co., 36 Ohio St. 239, 5 Am. 
 & Eng. R. Cas. 327; Pacific R. 
 Co. v. Wade, 91 Cal. 449, 50 Am. 
 & Eng. R. Cas. 362, 27 Pac. 768. 
 
 The Civil Code of California, 
 § 499, provides that " two lines of 
 street railway operated under dif- 
 ferent managements, may be per- 
 mitted to use the same street, each 
 paying an equal portion for the 
 construction of the tracks and 
 other appurtenances used by such 
 railways jointly." In 1897 a street 
 railroad was constructed in a city 
 under a franchise from it and has 
 since been maintained. Under the 
 provision of the Code quoted, it 
 was held that another company 
 having a like franchise was enti- 
 tled to intersect the tracks of the 
 first company and operate cars 
 thereon jointly with it, upon the 
 payment to it of one-half the value 
 of the tracks and appurtenances 
 at the time the later company was 
 permitted to make use of them. 
 Cook V. Los Angeles Ry. Co., 129 
 Cal. 180, 61 Pac. 912. 
 
 Under the Ohio statute (Rev. 
 Stat., §§ 3438, 3440, as amended 
 April II, 1890 [87 Ohio Laws, 
 178]) it was held that legal appro- 
 priation of, and compensation for 
 the use of, the tracks and sub- 
 structures of one street railroad 
 
TRAFFIC ARRANGEMENTS. 
 
 179 
 
 ■the ordinary use of it, and the track privileges of an existing 
 railroad company are sufficient for the business of two or 
 more companies, they shall all be obliged to use them in 
 common/ The statutory or other limitations upon a street 
 railroad franchise generally do not make the consent of the 
 abutting owners on that part of the street where the existing 
 railroad tracks are to be used by another company, necessary 
 to such use as if a new road were to be constructed.* In New 
 
 corporation by another, give the 
 appropriating corporation the 
 property right in such tracks and 
 substructures; and a third corpo- 
 ration, by a contract with the 
 original owner, can obtain no 
 right, as against the appropriating 
 corporation, to the use of said 
 tracks and structures; but the fact 
 that the corporation contracting 
 with the original owner had not 
 received any additional franchise 
 from the municipality, or obtained 
 the consent of the owners of more 
 than one-half of the frontage of 
 the abutting property, constituted 
 no ground for enjoining such cor- 
 poration from using the tracks, at 
 the instance of the appropriating 
 corporation, since such objections 
 could be raised only by the abut- 
 ting property-owners or the mu- 
 nicipality. Toledo El. St. Ry. Co. 
 V. Toledo N. V. Ry. Co., 7 Ohio 
 N. P. 211, I Ohio S. & C. P. 
 Dec. 33. 
 
 Under the Pennsylvania act a 
 second street railway company 
 may be chartered to run tracks 
 over a bridge already occupied by 
 a street railway company. 
 
 7. Dooly Block v. Salt Lake 
 Rapid Transit Co., 9 Utah, 31, 33 
 Pac. 229, 24 L. R. A. 610, 56 Am. 
 
 & Eng. R. Cas. 513. Under the 
 California statute in no case may 
 a street be occupied by two rail- 
 roads, whether belonging to cor- 
 porations or private persons, for 
 a distance of more than five blocks, 
 and an ordinance permitting it is 
 void. People v. Risch, 54 Cal. 74. 
 8. State V. Cincinnati & Hel. 
 St. R. Co., 19 Ohio Cir. Ct. 79, 
 10 O. C. D. 418. In the case cited 
 it was also held that the right of 
 a city to give a railroad company 
 the privilege of using the tracks 
 of another company under its stat- 
 utes (Rev. Stat., § 3438) is not af- 
 fected by the fact that the existing 
 railroad runs over a bridge on a 
 public highway in the city, which 
 bridge was erected by the county 
 commissioners, and that the stat- 
 utes conferring power upon a rail- 
 road company to make traffic ar- 
 rangements with another company 
 owning or operating a line of sur- 
 face railroad within the same city 
 did not interfere with the right of 
 the one to appropriate, by proper 
 statutory proceeding, the joint use 
 of the track of the other. It was 
 also decided that where a street 
 railroad company may construct a 
 street railroad, partly within and 
 partly without a municipality, and 
 
i8o 
 
 STREET SURFACE RAILROADS. 
 
 York however the rule is different. Ever since 1839 a statute 
 has existed making it lawful for any railroad corporation to 
 contract with any other railroad corporation for the use of 
 their respective roads, and thereafter to use the same in such 
 manner as may be prescribed in such contract. This statute 
 now forms part of section 78 of the Railroad Law.' The con- 
 sent of local authorities and property-owners to the construc- 
 tion of street surface railroads in city streets was not required 
 until 1854/° and upon a review of all the legislation upon the 
 subject, it is held by the Court of Appeals that neither the 
 
 has obtained the right to construct 
 its railroad over certain streets 
 within the city and also (from the 
 county commissioners) had ob- 
 tained the right to construct its 
 road on highways outside the city, 
 and does so, and the city author- 
 ities grant it the right to extend 
 its tracks in the city, and to oc- 
 cupy the tracks of an existing rail- 
 road therein under the act grant- 
 ing the right for not more than 
 one-eighth the distance between 
 the termini of the road, the part 
 of said railroad outside the city, 
 actually constructed, operated and 
 run over, as well as that part so 
 used within the city, may be esti- 
 mated to determine whether the 
 parts so used are more than eight 
 times the length of that part of 
 the existing railroad track which 
 it is authorized to use. 
 
 By accepting a municipal con- 
 sent to the construction of its 
 tracks on condition that certain 
 other railroads may use its tracks, 
 a street railroad company author- 
 izes such use of its tracks in ad- 
 vance of its construction. S. I. M. 
 R. Co. V. S. I. El. R. Co., 34 App. 
 
 Div. (N. Y.) 181, 54 N. Y. Supp. 
 (88 St. Rep.) 508. 
 
 A railroad company may con- 
 struct a curve connecting the 
 tracks of two other companies, in 
 pursuance of a contract to do so 
 in consideration of the right to use 
 such curve and the tracks of said 
 companies without the consent of 
 the property-owners or local au- 
 thorities. Kunz v. Brooklyn 
 Heights R. Co., 25 Misc. Rep. (N. 
 Y.) 334, 34 N. Y. Supp. (88 St. 
 Rep.) 187. 
 
 9. 3 Heydecker's Gen. Laws (2d 
 ed.), 3302, § 78, chap. 565 of 1890, 
 § 78, as amended by chap. 676 of 
 1892, and chap. 433 of 1893, § 2. 
 
 10. Laws of 1854, chap. 140, § i, 
 provided that " the common coun- 
 cils of the several cities of this 
 State shall not, hereafter, permit 
 to be constructed in either of the 
 streets or avenues of said city a 
 railroad for the transportation of 
 passengers, which commences and 
 ends in said city, without the con- 
 sent thereto of a majority in in- 
 terest of J;he owners of property 
 upon the streets in which said rail- 
 road is to be constructed being 
 
TRAFFIC ARRANGEMENTS. 
 
 I»I 
 
 consents of local authorities nor property-owners is required 
 to the operation by one railroad company of its cars over the 
 tracks of another railroad company by virtue of a traffic con- 
 tract with such other railroad company, but that such con- 
 sents are required to the construction, maintenance, or oper- 
 ation of new railroad tracks constituting either main line, 
 branches, or extensions, and that such consents are also re- 
 quired before one railroad can apply to acquire the right to 
 use the connecting track of another company by a proceed- 
 ing in invitum under section 102 of the Railroad Law." A 
 
 first had and obtained." And this 
 section is substantially re-enacted 
 in section 91 of the Railroad Law 
 of 1890. For section 91, see ante, 
 p. . 
 
 II. IngersoU v. Nassau El. R. 
 Co., IS7 N. Y. 453, 52 N. E. 545; 
 Colonial City T. Co. v. Kingston 
 R. Co., 153 N. Y. 540, 47 N. E. 
 810, reaffirmed on reargument, 154 
 N. Y. 493- 
 
 In the IngersoU Case the court, 
 per Chief Justice Parker (page 
 467), said: "When the legislature 
 incorporated chapter 218, Laws of 
 1839, into the General Railroad 
 Act, and provided that it should 
 constitute a continuance of that 
 chapter and not a repeal and re- 
 enactment thereof, it made it per- 
 fectly clear that it was the legisla- 
 tive intent not only that such a 
 right should thereafter be con- 
 tinued to all railroad corporations 
 created under and by virtue of the 
 provisions of the general law, but 
 that it should preserve the statute 
 from even an opportunity of con- 
 troversy as to whether it was in 
 violation of the spirit of the con- 
 stitutional amendment of 1874. 
 
 That amendment did not, as we 
 have seen, aflfect past legislation, 
 and therefore could not, by any 
 possibility, be said to aflfect a pro- 
 vision of law upon that subject 
 that should be continued in a gen- 
 eral railroad law instead of being 
 re-enacted. So, too, it continued 
 the legislation upon the subject of 
 the consents of the municipalities 
 and also the legislation upon the 
 subject of the consent of the abut- 
 ting owner. It is quite evident 
 that it was the legislative under- 
 standing that these several enact- 
 ments were in harmony with each 
 other and could stand together, 
 and there really does not seem to 
 be any room for questioning it; 
 but if there were, it would be the 
 duty of the courts to harmonize 
 the enactments. No such eflfort 
 however is needed. By the Gen- 
 eral Railroad Law, in order to ac- 
 quire the right to construct, ex- 
 tend, or operate a railroad upon 
 a public street, there must be ob- 
 tained, first, consent of the munic- 
 ipal authorities; second, consent of 
 a majority in interest of the abut- 
 ting owners, or, if that cannot be 
 
1 82 
 
 STREET SURFACE RAILROADS. 
 
 Street railroad company is not precluded from maintaining 
 proceedings to condemn the right to use a portion of the 
 tracks of another company until it obtains an additional grant 
 from the city, by its previous condemnation of the right to 
 use a different portion of the same tracks," unless by so doing 
 it exceed the statutory or otherwise properly imposed limit 
 for such use. In an action by a street railroad company 
 against another like company to appropriate a right of way 
 in the tracks of the latter, the question whether plaintiff has 
 
 had, the consent of the Appellate 
 Division. When these consents 
 have been obtained and the rail- 
 road corporation obtaining them 
 has in all other respects complied 
 with the commands of the Gen- 
 eral Railroad Law, it acquires 
 what is known as a franchise, and 
 one of the important features of 
 that franchise consists in the right 
 to contract with another corpora- 
 tion for the use of its tracks, which 
 right becomes a part of the fran- 
 chise. 
 
 " Thus reading together the sev- 
 eral sections of the Railroad Law, 
 and we see no other way in which 
 they can possibly be read except 
 by eliminating absolutely from 
 consideration the oldest and most 
 firmly grounded of all the statutes 
 we have referred to, we come 
 necessarily to the conclusion that 
 the court below was right in hold- 
 ing that the Atlantic Avenue Rail- 
 road Company, when it acquired 
 its franchise, secured as a part of 
 it the right to contract with an- 
 other railroad company to use its 
 tracks, a right that neither the mu- 
 nicipality nor the abutting owner 
 could take away or impair." 
 
 Two railroads may make a con- 
 tract by which one grants to the 
 other the right to use its tracks 
 for the passage of cars to another 
 part of the system of the grantee, 
 which does not name any definite 
 period, but provides for the an- 
 nual payment for the maintenance 
 of the tracks used; and the con- 
 tract is not a lease requiring the 
 consent of the stockholders, but 
 a traffic contract. Chapman v. 
 Syracuse Rapid T. R. Co., 25 Misc. 
 Rep. (N. Y.) 626, 56 N. Y. Supp. 
 (90 St. Rep.) 250. 
 
 The case last cited also held that 
 one cotenant of railroad tracks 
 which is bound not to " let, sub- 
 let, sell, assign, or convey " any 
 interest in its railroad without the 
 consent of the other cannot, with- 
 out such consent, make a traffic 
 contract with another railroad 
 which will give a permanent ease- 
 ment over the tracks. In such 
 case the silence or acquiescence of 
 the other cotenant constitutes a 
 mere temporary license. 
 
 12. Toledo' Consolidated Street 
 R. Co. V. Toledo El. St. R. Co., 
 12 Ohio C. C. 367, I O. C. D. 
 643- 
 
TRAFFIC ARRANGEMENTS. 
 
 183 
 
 obtained the consent of the majority of the abutting property- 
 owners prior to the grant of its franchise by the council can- 
 not be determined in Ohio; that question is for the council, 
 which had special charge of the subject.'^ When an ordi- 
 nance of a city designated a certain street for use by the rail- 
 road company and provided that if the city should thereafter 
 grant any other company the privilege to operate a street 
 railroad in the same street it might permit such company to 
 use the tracks of the former company upon making proper 
 compensation, the city authorities may grant the right to the 
 latter company to propel its cars upon said tracks by elec- 
 tricity, although the use thereof for power was unknown 
 when the ordinance was passed and although some disturb- 
 ance and injury to the former company might result thereby.''' 
 
 13. Consolidated St. R. Co. v. 
 Toledo El. St. R. Co., 6 Ohio N. 
 P- 537, 8 Ohio S. & C. P. Dec. 
 268. Owner is not entitled to fur- 
 ther compensation because of such 
 additional use. Miller v. Green 
 Bay, etc., R. Co., 59 Minn. 169, 
 II Am. R. & Corp. Rep. 246, 26 
 L. R. A. 443, 60 N. W. 1006. 
 
 14. New Baltimore Pass. Ry. 
 Co. V. N. Ave. Ry. Co., 4 Am. 
 Electl. Cas. i, 75 Md. 233, 23 
 Atl. 466. And see Canal & 
 Claiborne R. Co. v. Crescent 
 City, etc., Co., 4 Am. Electl. 
 Cas. 13, 44 La. Ann. 485, 10 So. 
 389. In the case last cited the 
 court said " that the track was 
 originally constructed for horse 
 cars, and was not strong enough to 
 bear the weight of electric cars, is 
 no reason why they should not be 
 placed on the track. There are 
 constant improvements in the 
 mode of travel. New and im- 
 
 proved conveyances are daily com- 
 ing into use. Public convenience 
 and necessity require the adoption 
 of the most improved methods. 
 The streets belong to the public. 
 Their use for the public cannot be 
 abridged. Hence, when the mu- 
 nicipal government in its discre- 
 tion sees the necessity of permit- 
 ting the use of the streets by im- 
 proved cars, driven at greater 
 speed by a new motor, no one can 
 complain, as no franchise can be 
 granted over a street exclusively 
 to any one for the continued use 
 of any particular kind of convey- 
 ance. 
 
 " The electric motor is but one 
 means of using the streets, and 
 the permission to use the electric 
 cars is established for the public 
 convenience, and is the exercise of 
 the police power of the city over 
 its public places. It cannot be 
 questioned, unless, as stated above, 
 
184 STREET SURFACE RAILROADS. 
 
 A connection between a street surface railroad and an ele- 
 vated railroad, by an inclined plane, is not a joining or union 
 in the sense of section 4 of the New York Railroad Law, 
 and therefore highway commissioners cannot authorize the 
 erection by a street surface railroad corporation, upon a pub- 
 lic highway, of an elevated inclined plane in order to connect 
 its track with an elevated railroad. The consent of abutting 
 owners as well as of the local authorities are essential to the 
 legality of such an erection.'^ A street railroad company 
 which has provided by contract for the running of cars by 
 another company over its tracks to a depot which it uses 
 for a steam railroad is not, without express provision, thereby 
 prevented from selling its franchises and right to a rival of 
 the other company, although the purchaser proceeds under 
 the franchise to construct a line between the depot and the 
 ferry which had previously been reached only by such other 
 company.'^ The just compensation to be made where one 
 railroad company condemns the use of the tracks of another 
 company for its own road is to be ascertained according to 
 the statute and practice of the State under whose laws they 
 hold their franchises. In Missouri it is held that the com- 
 pensation covers all such damages as are necessarily incident 
 to the connection of the lines of the two companies, in ac- 
 cordance with the plan proposed, and to the use, by the con- 
 necting company, of such cars as it operated on its own 
 track, at the time the connection was made, although thtf 
 
 its use evicts the company which 16. P. P. & C. I. R. Co. v. C. I. 
 
 owns the roadbed and material in & B. R. Co., 144 N. Y. 152, 26 L. 
 
 place from its property." R. A. 610, 63 St. Rep. (N. Y.) 48, 
 
 IS- Eldert v. The Long Island i Am. & Eng. R. Cas. (N. S.) 222, 
 
 El. R. Co., 28 App. Div. (N. Y.) 39 N. E. 17; Atlanta Ry. & P. Co. 
 
 451- V. Atlanta Rapid Transit Co. (Ga,), 
 
 39 S. E. 12. 
 
TRAFFIC ARRANGEMENTS. 1 85 
 
 manner of the connection and the width of the defendant's 
 cars necessarily caused more or less delay. Loss of passen- 
 gers cannot be considered, nor should any portion of the 
 special franchise tax paid by the company whose tracks are 
 to be used be included in the compensation. The compen- 
 sation should be based on the value of the road whose tracks 
 are to be used at the time of the proceeding and not upon the 
 original cost of the building of the road."" In fixing the 
 compensation to be paid by an electric street railroad com- 
 pany for the use of the track of a cable railroad, such use 
 being authorized by statute, it is proper to base the rental 
 upon the actual cost of the cable road, including cost of the 
 conduit, although the conduit was in no way useful to the 
 electric company and the cost of construction of the conduit 
 was three-fourths the cost of the whole roadway. The cable 
 road company should be made good for its loss, to wit, the 
 deprivation of the use of the road, without reference to the 
 benefit of the electric company.'^ Statutes prohibiting a 
 
 17. People's R. Co. v. Grand remedies. 149 Mo. 245, 50 S. W. 
 Ave. R. Co., 149 Mo. 24s, So S. W. 829. And see Grand Ave. R. Co. 
 829; Grand Ave. R. Co. v. Citizens' v. People's R. Co., 132 Mo. 34, 33 
 R. Co., 148 Mo. 66s, so S. W. 30S: S. W. 472, 12 Am. R. & Corp. 
 Grand Ave. R. Co. v. Lindell R. Rep. 594- It appeared that the 
 Co., 148 Mo. 637, so S. W. 302. road was originally constructed as 
 It was further held that the pro- a cable road and the use of it for 
 ceeding provided by the ordinance such purpose had been abandoned; 
 of the city of St. Louis for the it was also held that if the con- 
 purpose of securing to a street rail- necting railroad is charged with 
 road company full and fair com- the total costs of paying the switch- 
 pensation for any injury which it men necessary for making connec- 
 might suffer by reason of the de- tions with the other company's 
 lays and inconveniences resulting track, and is made responsible for 
 from the exercise by another com- making such connections, it should 
 pany of its road under the charter be allowed to select such switch- 
 to connect its tracks with, and pass men. 
 
 its cars over, the tracks of the 18. Grand Ave. Ry. Co. v. Peo- 
 
 former company, is a valid and ade- pie's Ry. Co. CMo. Sup. Ct), 6 
 
 quate one, and excludes all other Am. Electl. Cas. 99. 
 
1 86 STREET SURFACE RAILROADS. 
 
 street surface railroad company from leasing its rights or 
 franchises to any other company owning or operating a road- 
 parallel thereto does not preclude a traffic arrangement be- 
 tween two companies for the partial use of their respective 
 routes beyond the line of parallelism.'' In the absence of 
 authority acquired as provided by statute or by condition 
 in the ordinance granting the franchise one street railroad 
 company cannot use the tracks of another company with- 
 out its consent and will be prohibited from so doing by 
 injunction.^" 
 
 § 10. Crossing other tracks. — The right of a railroad com- 
 pany to cross or occupy any part of the streets of a city con- 
 stitutes a mere easement. It gives no title to the street 
 itself. Therefore a street railway company operating under 
 proper municipal authority may construct its lines across 
 the tracks thereof without instituting condemnation proceed- 
 ings or paying damages therefor unless the statute provides 
 to the contrary.^' The railroad whose tracks are crossed 
 
 19. People V. O'Brien, iii N. Y. 21. Southern Ry. Co. v. Atlanta 
 I, 64, 18 N. E. 692, 36 Am. & Eng. Ry. & P. Co., Ill Ga. 679, 36 S. 
 R. Cas. 78, 7 Am. St. Rep. 684; E. 873; Morris & Essex R. Co. 
 Canal, etc., R. Co. v. Orleans R. v. Newark Pass. Ry. Co., 5 Am. 
 Co., 44 La. Ann. 54, 10 So. 389, 50 Electl. Cas. 229, 51 N. J. Eq. 
 Am. & Eng. R. Cas. 369. 379; N. Y., N. H. & H. R. 
 
 20. Met. R. Co. V. Quincy R. Co. v. Bridgeport T. Co., 5 
 Co., 12 Allen (Mass.), 262; Louis- Am. Electl. Cas. 246, 65 Conn. 
 ville City R. Co. v. Central Pass. 410, 29 L. R. A. 367, 32 Atl. 
 R. Co., 87 Ky. 223, 8 S. W. 329, 36 953. In the case last cited it 
 Am. & Eng. R. Cas. 463; Jersey was also held that the fact that an 
 City, etc.. R. Co. v. Jersey City, electric street railroad company 
 etc.. Horse R. Co., 20 N. J. Eq. threatens to construct a grade 
 61, 21 id. sso; Centra! City Horse crossing of a steam railroad, in 
 R. Co. V. Fort Clark Horse R. Co., constant use, which will disarrange 
 81 111. 533; Boston, etc., R. Co. v. plaintiff's train service, put it to 
 Salem, etc., R. Co., 2 Gray great additional expense in the 
 (Mass.), I. construction of its road and 
 
CROSSING OTHER TRACKS. 
 
 18/ 
 
 cannot complain because the street railroad company cross- 
 ing is permitted to operate an electric line; it must submit 
 to the inconvenience that may result from the growth and 
 development of the city and the consequent increase of and 
 change in the modes of travel.^^ Either by statute or by 
 condition properly prescribed in the ordinance granting the 
 
 greatly endanger the lives of its 
 passengers and employees, is suffi- 
 cient for an injunction, irrespective 
 of the street railroad company's 
 pecuniary responsibility. And see 
 Chicago & C. Terminal R. Co. v. 
 Whiting, etc., St. R. Co., 139 Ind. 
 297, 47 Am. St. Rep. 264, 11 Am. 
 R. Corp. Rep. 507, I Am. & Eng. 
 R. Cas. (N. S.) 181, 26 L. R. A. 
 337, 38 N. E. 604; C, B. & Q. R. 
 Co. V. W. Chicago St. R. Co., 156 
 111. 255, 29 L. R. A. 485, 12 Am. 
 R. Corp. Rep. 522, 40 N. E. 1008; 
 Brooklyn Cent, etc., R. Co. v. 
 Brooklyn City R. Co., 33 Barb. 
 (N. Y.) 420; New York, etc., R. Co. 
 V. Forty-second St. R. Co., 50 Barb. 
 (N. Y.) 309; Market St. R. Co. v. 
 Cent. R. Co., 51 Cal. 583; High- 
 land Ave., etc., R. Co. v. Birming- 
 ham Union R. Co., 93 Ala. 505, 
 50 Am. & Eng. R. Cas. 422, 9 So. 
 S<58. 
 
 A street railway company lim- 
 ited by statute to operate in es- 
 tablished streets and highways can- 
 not, under a statute permitting it 
 to cross steam railroads at grade, 
 make such crossing without the 
 consent of the steam railroad com- 
 pany at any place other than an 
 established street or highway; 
 neither can it make an overhead 
 crossing or viaduct except subject 
 to the same limitations. Northern 
 Central Ry. Co. v. Harrisburgh, 
 
 etc., Co. (Pa. Sup. Ct.), 6 Am. 
 Electl. Cas. 187. 
 
 The maintenance of a viaduct 
 over a steam railway and the 
 operation of electric street cars, 
 over the same must cause an ap- 
 preciable cause of danger to the 
 steam railway company, its patrons 
 and employees; an injunction is 
 proper to prevent the unauthorized 
 construction of such viaduct. Id. 
 
 22. Southern Ry. Co. v. Atlanta 
 Ry. Co., supra. It was also held 
 that the charter of a street railroad 
 company granted by the secretary 
 of state and confirmed and vali- 
 dated by the chancellor made the 
 company one " chartered by the 
 legislature " within Civil Code, 
 % 2219, permitting any railroad 
 company " heretofore or hereafter 
 chartered by the legislature of the 
 State to cross the tracks of any 
 other company under certain con- 
 ditions." 
 
 A street railroad may cross 
 " at grade diagonally or trans- 
 versely, any railroad operated by 
 steam or otherwise " in Penn- 
 sylvania, and a railroad of the 
 latter class will be restrained from 
 interfering with the street railroad 
 so attempting to cross. Bufifalo, 
 etc., R. Co. V. Du Bois T. Pass. 
 R. Co. (Pa. C. P.), 24 Atl. 179, I 
 Pa. Adv. Rep. 755. 
 
l88 STREET SURFACE RAILROADS. 
 
 franchise to the one railroad company the right is reserved 
 to any other railroad company to cross its tracks upon mak- 
 ing just compensation. This statutory right however does 
 not permit the commingling of tracks for four hundred feet 
 or more along a thirty-foot right of way, making it imprac- 
 ticable to operate either track or set of tracks when any one 
 of the other tracks is being actually used.^^ Whether a 
 steam road crossing a highway in the town should be inter- 
 sected by a street railroad at the same point is a question 
 to be determined by the authorities of the town in which the 
 crossing is located. The authorities of some other town or 
 village through which the street railroad passes has no power 
 to consent and are not concerned in the question unless of 
 course either by statute or ordinance properly applicable, 
 such consent is made a prerequisite. The regularity of a 
 proceeding by which a street railroad company seeks the 
 right to cross the tracks of a steam railroad company at the 
 point where the latter tracks intersect the highway on which 
 the street railroad is constructed must be determined by the 
 statute as it stood when the appHcation is made ; a subsequent 
 amendatory statute, prospective in its operation, and pre- 
 cluded from retroactive effect, has no pertinency.^* In con- 
 
 23. Seattle & M. R. Co. v. State, N. E. 498. In the case cited it was 
 7 Wash. ISO, 22 L. R. A. 217, 34 held that where a street railroad 
 Pac. SSI. Section 216 of the Ken- company running for seven miles 
 tucky Constitution applies to street through two separately constituted 
 railroads and restricts the right of villages and also through a town 
 such road to cross within a city where the crossing in question was 
 the tracks of a steam railroad to a located, obtains the consent of the 
 case where the crossing is reason- highway commissioners of the 
 able and feasible. Louisville & N. town to the construction of the 
 R. Co. V. Bowling Green Ry. Co. street railroad on the town high- 
 (Ky.), 63 S. W. 4. way, the consent is sufficient, and 
 
 24. G. & W. Ry. Co. V. N. Y. C. the failure to obtain the consent 
 & H. R. R. Co., 163 N. Y. 228, 57 of the local authorities of the vil- 
 
CROSSING OTHER TRACKS. 
 
 189 
 
 sidering the effect of the decisions of any State court the 
 statute relative to the matter must of course be considered; 
 and in the note hereto a number of decisions are collated 
 from the several States.^s !„ ^ew Jersey a street railroad 
 
 'lages is immaterial since they could 
 have no force. 
 
 25. In New Jersey the statute of 
 1895 (Gen. Stat., p. 2717) author- 
 izing the chancellor to define the 
 mode in which one railroad may 
 cross another requires that the 
 lawful route of the petitioning 
 company should cross the line of 
 railroad belonging to the other 
 company; and where the intersec- 
 ing extension of the petitioner 
 street railroad company's line is 
 unauthorized by its charter, the 
 chancellor's jurisdiction does not 
 attach. Trenton St. Ry. Co. v. 
 United N. J. R. & C. Co., 46 Atl. 
 763. The petitioner must show in 
 the proceeding before the chancel- 
 lor, under this statute, by due 
 proof, that his application is within 
 the terms of the statute, and a peti- 
 tion, verified by affidavits, and 
 served under rule 138 of the Court 
 of Chancery, providing that affida- 
 vits and objections duly sworn to 
 may be used on the hearing of a 
 railroad to show cause, cannot be 
 accepted as competent proof of the 
 corporate existence of the street 
 railroad, or of the grant alleged to 
 have been made by a turnpike com- 
 pany to it for the use of its road. 
 Re Trenton St. Ry. Co. (N. J.), 44 
 At\. 177. 
 
 On an application under that stat- 
 ute to define the mode of crossing 
 a steam railroad by the trolley road 
 a map filed by the petitioner show- 
 ing that the route of the trolley 
 
 road crosses the railroad at the 
 point where the mode of crossing 
 is to be defined, is sufficient, 
 though it does not exhibit any in- 
 dication of a crossing. On such 
 proceeding the question is whether 
 taking into account the danger of 
 collision and facility and economy 
 with which it may be avoided by 
 adopting a crossing other than at 
 grade, the latter method should be 
 required. Re W. Jersey T. Co. (N. 
 J.), 45 Atl. 282. 
 
 The right of a street sur- 
 face railroad company to have its 
 tracks intersect with those of a 
 steam railroad company is pro- 
 vided for by section 4 of chapter 
 676 of the Laws of 1892, notwith- 
 standing the fact that the steam 
 railroad company has title in fee 
 to the line at that place in the 
 street Subject to the easement of 
 the public; the right of crossing 
 the tracks is not necessarily incon- 
 sistent with the purpose to which 
 the line was originally appropri- 
 ated; and the objection to the pro- 
 posed crossing of the tracks on the 
 ground that it will interfere with 
 the use by the steam railroad of its 
 tracks, presents a question for the 
 consideration of the commission- 
 ers in condemnation proceedings. 
 Hornellsville R. Co. v. N. Y., L. 
 & W. R. Co., 83 Hun (N. Y.), 407. 
 And see Buffalo B. & L. R. Co. v. 
 Same, 72 Hun (N. Y.), 587, 54 
 St. Rep. (N. Y.) 877, 25 N. Y. 
 Supp. 155. In Georgia it is held 
 
IQO 
 
 STREET SURFACE RAILROADS. 
 
 company may cross the tracks of another company without 
 making compensation, although any of the methods of cross- 
 ing which the safety and convenience of the public requires 
 involves an actual interference with the tracks and rails of 
 the latter company and involves the joint use of tracks and 
 rails at the point of crossing by the second company/* The 
 provision of the New York Railroad Law requiring a street 
 surface railroad before constructing any part of its road upon 
 or through any " private property," to file a map or profile 
 of its proposed route through it, applies to the crossing of 
 the right of way of a steam railroad; such map or profile 
 however need not show the route through the lands of any 
 other persons or corporations in order to obtain the cross- 
 
 that a grant to a railroad company 
 of the right to construct its road 
 between two cities, and to cross 
 one of them to connect its road 
 with that of another company, does 
 not authorize it to lay its tracks 
 longitudinally upon the streets of 
 such city. Davis v. East Tenn., V. 
 & G. R. Co., 87 Ga. 607, 10 Ry. & 
 Corp. L. J. 393, 13 S. E. 567. 
 
 A railroad company can be re- 
 strained from constructing an addi- 
 tional track across a street laid out 
 across its track after the latter was 
 constructed where for years it had 
 maintained a crossing. Brunswick 
 & W. R. Co. V. Waycross, 88 Ga. 
 68, 13 S. E. 83s. 
 
 26. Consol. T. Co. V. S. Orange 
 & M. T. Co., 7 Am. Electl. Cas. 390, 
 56 N. J. Eq. 569, 40 Atl. 15. And 
 see Gen. El. Co. v. Chicago City 
 R. Co., 66 111. App. 362, 12 W. C. 
 R. 750, 28 Chic. Leg. N. 406. 
 
 In Pennsylvania it is held that, 
 although the traffic of a traction 
 company has so increased with the 
 
 growth of a city that two grade 
 crossings maintained by it across 
 the tracks of a railroad company 
 are insufficient does not constitute 
 such an imperious necessity as will 
 authorize it to make additional 
 crossings at grade. Whether an 
 overhead crossing of the tracks of 
 a railroad company by those of a 
 traction company is reasonably 
 practicable is not to be determined 
 by the financial ability of the road 
 seeking to cross, but by the physi- 
 cal practicability of avoiding a 
 grade crossing. Chester Traction 
 Co. V. Philadelphia, etc., Co., 188 
 Pa. St. 105, 7 Del. Co. Rep. 281, 43 
 W. N. C. 249, 41 Atl. 449. 
 
 A street railway company has 
 the right to diverge from the high- 
 way and to construct its railroad 
 on property secured for that pur- 
 pose in order to avoid a grade 
 crossing at the intersection of a 
 railroad. Pa. Ry. Co. v. Glenwood 
 & D. El. St. R. Co., 184 Pa. St. 227, 
 41 W. N. C. 441, 39 Atl. 80. 
 
CROSSING OTHER TRACKS. 
 
 191 
 
 ing/^ In many States application must be made to the State 
 railroad commission before the crossing of steam railroad 
 tracks by a street railroad will be allowed.^* If the corpora- 
 
 27. D., L. & W. R. Co. V. Syra- 
 cuse, L. & B. R. Co., 28 Misc. 
 Rep. (N. Y.) 456, 59 N. Y. Supp. 
 (93 St. Rep.) 1035. 
 
 28. New York Railroad Law, 
 I 60, as amended by chap. 754, 
 Laws 1897; 3 Heydecker's Gen. 
 Laws (2d ed.), 3289. And see 
 Louisville & N. R. Co. v. Bowling 
 Green Ry. Co. (Ky.), 63 S. W. 4; 
 Cincinnati & H. El. St. R. Co. v. 
 Cincinnati, H. & I. R. Co. (Ohio), 
 12 O. C. D. 113; Board of Railroad 
 Comrs. V. Market St. Ry. Co. 
 (Cal.), 64 Pac. 1065. 
 
 A New York law provides: 
 " I. Whenever the railroad or 
 route of any street surface railroad 
 corporation shall intersect and 
 cross, or shall cross the tracks and 
 roadbed of any railroad, operated 
 by locomotive, steam or other 
 power, which are laid in, across or 
 upon the surface of any street, ave- 
 nue, road or highway in any city, 
 town or village of the state, having 
 less than five hundred thousand 
 inhabitants, and such street surface 
 railroad corporation having been 
 unable to agree with the corpora- 
 tion owning the tracks and road- 
 bed so intersected or to be inter- 
 sected and crossed, as to the line 
 or lines, grade or grades, points or 
 manner of such intersection and 
 crossing, or upon the compensa- 
 tion to be made therefor, shall have 
 applied to the court by petition to 
 appoint commissioners to deter- 
 mine the same, the court shall 
 upon application made by such 
 
 street surface railroad corporation, 
 at, or after, the time of the appoint- 
 ment of such commissioners, or if 
 an answer to the petition of such 
 street surface railroad corporation 
 has been interposed, at any time 
 thereafter, direct that such street 
 surface railroad corporation, be 
 permitted to lay its tracks across 
 and to intersect, upon the surface 
 of the street, avenue, road or high- 
 way, the tracks and roadbed of 
 such railroad operated by locomo- 
 tive, steam, or other power, pro- 
 vided, such street surface railroad 
 corporation shall at the time of ob- 
 taining such order make and file 
 with the clerk of said court, its 
 bond or undertaking in writing, in 
 an amount and with surety or sure- 
 ties to be approved by the court, 
 conditioned for the full and faith- 
 ful performance by such street sur- 
 face railroad corporation of any 
 and all conditions and require- 
 ments which may be imposed by 
 said commissioners and be af- 
 firmed by the court, in determining 
 the line or lines, grade or grades, 
 points or manner of such intersec- 
 tion and crossing and as to the 
 amount of compensation to be paid 
 therefor, and also conditioned to 
 conform such crossing and inter- 
 section made by virtue of such or- 
 der of the court to the require- 
 ments made by said commissioners 
 as affirmed by the court." 
 
 " 2. No street surface railroad 
 shall be allowed to lay its tracks 
 at grade across the tracks or road- 
 
192 
 
 STREET SURFACE RAILROADS. 
 
 tions whose roads intersect cannot agree upon the compensa- 
 tion to be made by the company seeking to make intersec- 
 tions or connections, the statute generally provides that the 
 compensation shall be ascertained and determined by com- 
 missioners as in condemnation proceedings. In New York, 
 the defendant railroad company in such proceeding cannot 
 appeal from an order appointing commissioners, as, under the 
 Condemnation Law of that State, the defendant can only 
 appeal from a final order in the proceedings.^^^ 
 
 bed of any railroad operated by 
 locomotive steam power at any 
 point where there are three or 
 more tracks of the steam road pro- 
 posed to be crossed, which tracks 
 have been constructed and in oper- 
 ation at least two years, unless the 
 written consent of the state rail- 
 road commissioners be first ob- 
 tained for such crossing at grade. 
 But this section shall not affect the 
 operation of section one of this act 
 in any suit or proceeding now 
 pending nor any renewals of said 
 pending suit or proceeding brought 
 for any cause." (And see chap. 239 
 of 1893, 4 Heydecker's Gen. Laws 
 [2d ed.], 4826, 4827.) 
 
 2854. Stillwater, etc., R. Co. v. 
 M. & M. R., 67 App. Div. (N. Y.) 
 367; appeal dismissed on the ground 
 that the order appealed from was 
 a discretionary order. 170 N. Y. 
 
 The statute, Railroad Law, § 12, 
 3 Heydecker's Gen. Laws (2d ed.), 
 P- 3259, provides as follows: 
 
 " S 12. Intersection of other 
 railroads — Every railroad cor- 
 poration, whose road is or shall be 
 intersected by any new railroad, 
 shall unite with the corporation 
 owning suoh new railroad in form- 
 
 ing the necessary intersections and 
 connections, and grant the requisite 
 facilities therefor. If the two cor- 
 porations cannot agree upon the 
 amount of compensation to be made 
 therefor or upon the line or lines, 
 grade or grades, points or manner 
 of such intersections and connec- 
 tions, the same shall be ascertained 
 and determined by commissioners, 
 one of whom must be a practical 
 civil engineer and surveyor, to be 
 appointed by the court, as is pro- 
 vided in the condemnation law. 
 Such commissioners may determine 
 whether the crossing or crossings of 
 any railroad before constructed 
 shall be beneath, at, or above the 
 existing grade of such railroad, and 
 upon the route designated upon the 
 map of the corporation seeking the 
 crossing or otherwise. All railroad 
 corporations whose roads are or 
 shall hereafter be so crossed, inter- 
 sected or joined, shall receive from 
 each other and forward to their des- 
 tination all goods, merchandise and 
 other property intended for points 
 on their respective roads, with the 
 same dispatch as, and at a rate of 
 freight not exceeding the local tar- 
 iff rate charged for similar goods, 
 
turnpikes; bridges. 193. 
 
 § 11. Use of turnpikes, bridges, etc. — A street surface rail- 
 road company may contract with a turnpike company for 
 compensation to be paid to the latter company for the use 
 of its turnpike on which to place a street railroad.^' But 
 wherever the Constitution or a statute prohibits such rail- 
 road company from constructing or maintaining its road in 
 a highway without the consent of the " local authorities," 
 a turnpike company's consent to the use of its turnpike for 
 street railroad purposes is futile unless the consent of the 
 " local authorities " is also obtained.^" Such a railroad cor- 
 poration may be given the right to condemn a necessary 
 easement for the operation of its railroad over the turnpike 
 of another corporation and may also condemn the right to 
 use electricity as a motive power thereon instead of its already 
 acquired use of horse power. 3' In the proceeding to con- 
 demn however the turnpike company may interpose the ob- 
 jection that the necessary consent of local authority has not 
 been obtained.^^ The just compensation to be paid must 
 be determined as in any other case. The value of the entire 
 
 merchandise and other property, re- Middletown, etc., St. Ry. Co. v. 
 
 ceived at or forwarded from the Middletown, etc., El. Ry. Co., 2 
 
 same point for individuals and other Dauph. Co. Rep. (Pa. C. P.) 319. 
 
 corporations. (As amended by 31. Baltimore, etc., Tp. Road v. 
 
 chap. 676 of 1892.) " Baltimore, etc., R. Co., 81 Md. 
 
 29. Little Saw-Mill Valley Turn- 247, 3 Am. & Eng. R. Cas. (N. S.) 
 pike or Plank R. Co. v. Federal 177, 31 Atl. 854. 
 
 St., etc., R. Co., 194 Pa. St. 144, 32- Harrisburg, etc., R. Co. v. 
 
 45 Atl. 66; Hunt v. West Jersey Harrisburg, etc., Tp. Co. (Pa. C. 
 
 Trac. Co. (N. J. Ch.), 49 Atl. 434- P.), iS Pa- Co. Ct. 389, 4 Pa. Dist. 
 
 30. Re Rochester El. Ry. Co., 17. 
 
 123 N. Y. 351, 33 St. Rep. (N. Y.) But the question of forfeiture, 
 
 69s, 25 N. E. 381 ; Harrisburg, etc., by laches, of the charter right so 
 
 El. Ry. Co. V. Harrisburg, etc., Tp. to lay its tracks cannot be consid- 
 
 Co., 5 Am. Electl. Cas. i, 15 Pa. ered as the State alone can move 
 
 Co. Ct. 389; Borough of Steelton for such forfeiture. Tp. Co. v. 
 
 V. E. Harrisburg Pass. Ry. Co., 2 Jenkintown El. R. Co. (Pa. C. P.), 
 
 Dauph. Co. Rep. (Pa. C. P.) 313; 4 Pa. Dist. 8. 
 
 13 
 
194 STREET SURFACE RAILROADS. 
 
 property of the turnpike company is not admissible on the 
 question of value of a very small portion thereof in which 
 the right is sought to be acquired, the character and pro- 
 ductiveness of the other parts not being shown; nor is it 
 material what the street car company agreed to pay for its 
 occupation of the turnpike.^^ In Pennsylvania it is also held 
 that the use of a public tollbridge for an electric railroad 
 upon payment of adequate tolls is not a taking of or injury 
 to the property in the exercise of the power of eminent 
 domain.^* And the county commissioners cannot arbitrarily 
 refuse such use of a county bridge when the proper local 
 authorities have given their consent to the use of the high- 
 way of which the bridge forms a part.^' of course if the 
 bridge is not strong enough to admit of such use, a refusal 
 by the county commissioners on that ground would not be 
 arbitrary. But the court might ascertain what would be 
 necessary to strengthen the bridge for such traffic and then 
 permit the railroad company to enter upon the bridge and 
 strengthen it, and when that has been done to the satisfac- 
 tion of the court the company may be permitted to use the 
 bridge upon giving security that it will faithfully observe and 
 abide by the terms and conditions relating to the manner of 
 its use, the repairs thereof and the payment of rent which 
 may have been made, or may be agreed upon by the parties, 
 
 33. Pres., etc., Perkiomen & R. struct its tracks thereover where 
 Tp. Rd. V. Berks Co., 196 Pa. St. the bridge was not originally built 
 21, 46 Atl. 98. for such purpose. Pa. R. Co. v. 
 
 34. Pittsb. Pass. R. Co. v. Point Greenburgh J. & P. St. R. Co., 
 B. Co., 165 Pa. St. 37, 26 L. R. A. 176 Pa. St. 559, 27 Pittsb. L. J. (N. 
 323, 25 Pittsb. L. J. (N. S.) 192; S.) 134, 35 Atl. 122. 
 
 35 W. N. C. 393, 30 Atl. SI I. But 35. Lawrence Co. v. Newcastle 
 
 a railroad company must see that El. St. R. Co., 8 Pa. Super. Ct. 313, 
 
 tbe overhead bridge over railroad 52 Pittsb. L. J. (N. S.) 145, 43 W. 
 
 tracks crossed by its road is safe N. C. 76. 
 before it will be allowed to con- 
 
turnpikes; bridges. 
 
 195 
 
 or, in the absence of an agreement, may be determined upon 
 by the court.3« In New York under the statutes by which 
 municipal corporations like villages and cities are organized 
 the bridges within the municipalities remain under the con- 
 trol, of the highway commissioners of the respective towns 
 out of which the municipahties are carved. And the consent 
 of the municipal authorities to the construction of a 'street 
 railroad in the street including the bridge does not authorize 
 the railroad company to lay its tracks upon the bridge itself 
 -without the consent of the highway commissioners of the 
 town.37 A release b^ a turnpike company of all its interest 
 
 36. Lawrence Co. Case, supra. In 
 "the case cited the court also said 
 that there was a manifest difference 
 between the refusal of an inter- 
 locutory judgment restraining a 
 stieet railroad company from lay- 
 ing an additional track upon a 
 county bridge forming a part of a 
 liighway, the use of which has been 
 granted to the company by the 
 proper local and municipal author- 
 ities, and the granting of express 
 permission to go on with the work; 
 and the granting of such permis- 
 sion against the objection of the 
 county before a determination as 
 to what is necessary in order to 
 make the bridge safe for street 
 railway traffic is erroneous, al- 
 though a mere interlocutory in- 
 junction may be improper because 
 of the absence of immediate danger 
 of irreparable injury. 
 
 A portion of a causeway belong- 
 ing to a bridge company was con- 
 demned for depot purposes with 
 a condition that it should be " sub- 
 ject to whatever rights of crossing 
 the same now exist by law; " held, 
 
 that this did not include the right 
 to construct a street railroad across 
 such grants. N. Y., N. H, & H. 
 R. Co. V. Fair Haven & W. R. Co., 
 70 Conn. 610, 40 Atl. 607, 41 id. 
 169. 
 
 37. Town of Lysander v. S. L. 
 & B. R. Co., 31 Misc. Rep. (N. Y.) 
 330, 6s St. Rep. (N. Y.) 415; affd., 
 SI App. Div. 617, 66 St. Rep. (N. 
 Y.) 1146. In the New York Rail- 
 road Law provision is made for 
 the extension of street railroad 
 routes over rivers and for the use 
 of bridges as follows: 
 
 " § 96. Extension of route over 
 rivers; terminus in other coun- 
 ties; when property-owners 
 ■withhold consent; supreme court 
 may appoint commissioners. — 
 Any street railroad in operation in 
 this state, which shall, by a two- 
 thirds vote of its directors, decide 
 to extend the route of its road, so 
 as to cross a river over and by any 
 bridge now or hereafter con- 
 structed under the provisions of 
 any law of this state, may so ex- 
 tend their route over and across 
 
196 
 
 STREET SURFACE RAILROADS. 
 
 in that portion of its road occupying the bed of a street, 
 releases also the franchise which it has previously purchased 
 
 such bridge upon such terms as 
 may be mutually agreed upon be- 
 tween it and such bridge company, 
 and may locate the terminus of 
 their road in the county adjoining 
 the one in which their road is 
 now located and in operation, upon 
 first obtaining the consent of such 
 bridge company or its lessees, and 
 the consent of the owners of one- 
 half in value of the property 
 bounded on, and the consent also 
 of the local authorities having the 
 control of that portion of a street 
 or highway upon which it is pro- 
 posed to construct or operate such 
 railroad, or in case the consent of 
 such property-owners cannot be 
 obtained the appellate division 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 parties interested, whether such 
 railroad ought to be constructed, 
 or operated, and their determina- 
 tion, confirmed by the court, may 
 be taken in lieu of the consent of 
 the property-owners. Whenever 
 a terminus of any public viaduct, 
 bridge or bridges, or public via- 
 duct connected with any bridge or 
 "bridges, heretofore or hereafter 
 constructed in and owned and 
 maintained by any city of the first 
 class, or town adjoining the same, 
 is or shall be located at or adjacent 
 to or within one-half mile of the 
 route of any existing street surface 
 railroad, the corporation owning 
 or operating such railroad may, 
 irrespective of any provisions 
 
 otherwise applicable thereto con- 
 tained in any general or local act, 
 upon obtaining the consent of the 
 local authorities and property- 
 owners as above provided, and 
 upon complying with the provi- 
 sions of the Railroad Law appli- 
 cable thereto, extend its road or 
 route and construct and operate 
 its railroad, to, upon and across 
 such viaduct, bridge or bridges 
 and approaches thereto for the 
 purpose of connecting with an- 
 other railroad route not more than 
 one-half mile distant from such 
 bridge or viaduct so as to afford 
 a continuous ride for one fare, 
 subject to the provisions of the 
 Railroad Law, or for the purpose 
 of reaching the depot, station or 
 terminus of another railroad not 
 more than one-half mile distant 
 from such bridge or viaduct. This 
 section shall not apply to any 
 bridge over the Hudson or East 
 rivers in the counties of New 
 York and Kings, nor to any 
 bridge or viaduct constructed 
 under the provisions of any so- 
 called Grade Crossing Law." 
 (Chap. 565 of 1890, § 96, as 
 amended by chap. 590 of 1898, § 
 I, as amended by chap. 419 of 
 igoi, § I. See 3 Heydecker's 
 Gen. Laws [2d ed.], 3315.) 
 
 " § no. Bight to cross bridge 
 substituted for a bridge crossed 
 for five years — Should any street 
 surface railroad company have 
 crossed any bridge as a part of its 
 route for a period of more than 
 five years and should any other 
 bridge be substituted therefor at 
 
MOTIVE POWER. I97 
 
 for the laying of a passenger railroad track along its road.''* 
 A grant by a turnpike company to an electric railroad com- 
 pany of its right to operate its lines over the turnpike, " not 
 however by the use of steam, for the transportation of pas- 
 sengers and such bundles and parcels as are now customary 
 to be carried on the city and suburban electric railway lines, 
 but not for the transportation of heavy freight," does not 
 entitle the railroad company to run a car upon the turnpike 
 designed for general freight. ^^ A city may lawfully acquire 
 a turnpike road as a street, and may change the grade of such 
 street without regard to a contract antedating its acquisition 
 of such street between the turnpike company and a street 
 surface railroad company whose road had been constructed 
 thereon."*" 
 
 § 12. Motive power. — Electricity is supplanting other 
 modes of traction upon street surface railroads to such an 
 extent that it seems useless to consider the cases in various 
 
 any time, such company shall have Atl. 910, 40 W. N. C. 453, 28 
 the right to cross such substituted Pittsb. L. J. (N. S.) SS- And see 
 bridge and to lay and use railway F. & S. R. & T. Co. v. Fayetteville, 
 tracks thereon for the transit of 37 Misc. (N. Y.) 223, where it is 
 its cars and to make all changes also held that while a municipality 
 and extensions of its route subject may change the grade of a turnpike 
 to all the provisions of this act, within its limits it should not pro- 
 as the convenient operation of its ceed without notice or warning to 
 cars and public convenience may tear up and partly destroy the turn- 
 require." (Added by chap. 676 of pike, as the turnpike company's 
 1892. See Heydecker's Gen. Laws duty of maintaining the highway in 
 l2d ed.], 3323.) a proper condition continued, and 
 
 38. West Phila. Pass. R. Co. v. the municipality is liable to it in 
 Phila. & W. C. Tpk. Rd. Co. (C. damages, if by its act the perform- 
 P.), 6 Pa. Dist. R. 169; 19 Pa. Co. ance of this duty is made more 
 Ct 225. onerous. An injunction was al- 
 
 39. Prest., etc., B. & F. Tpk. Rd. lowed restraining the village and 
 V. United Rys. & El. Co. (Md. the railroad company, defendants, 
 1901), 48 Atl. 723. from further interference with the 
 
 40. Ridge Ave. Pass. R. Co. v. roadway. 
 Philadelphia, 181 Pa. St. 592, 37 
 
198 
 
 STREET SURFACE RAILROADS. 
 
 States wherein the question of the change in motive power 
 from horse to electricity is discussed.*' In nearly every State 
 by statute electricity and generally any other motive power 
 than locomotive steam power is expressly permitted;*^ and 
 the particular motive power contemplated is usually pre- 
 scribed by the charter or by ordinance completing the fran- 
 chise. In New York the omission of the words " in value " 
 after the word " property " in section 100 (cited in note 2 
 below), providing for the consent of " the owners of one-half 
 of the property bounded on that portion of the railroad with 
 respect to which a change of motive power is proposed " did 
 not alter the law as it then existed so as to require the con- 
 sent of the owners of one-half the lineal frontage of such prop- 
 
 41. The International Year Book 
 of igoo states: "The extent to 
 which electricity is supplanting 
 other modes of traction may be 
 appreciated when we consider 
 that while there is an increase of 
 2,027 miles or 12.7 per cent, in the 
 length of the track of electric rail- 
 ways, there is a decrease of 46 
 miles or 12.2 per cent, in the 
 mileage of cable railways, of 235 
 miles or 36.1 per cent, in the ex- 
 tent of horse railways, and of 83 
 miles in the mileage of lines using 
 other sources of motive power." 
 
 42. The statute of New York 
 (Railroad Law, I 100, chap. 565 of 
 igoo, 3 Heydecker's Gen. Laws 
 [2d ed.l, 3317) is as follows: 
 
 " § 100. Motive power Any 
 
 street surface railroad may oper- 
 ate any portion of its road by 
 animal or horse power, or by 
 cable, electricity, or any power 
 other than locomotive steam 
 power, which said locomotive 
 
 steam power is primarily gener- 
 ated by the locomotive propelling 
 the cars, and in the use of which 
 either escaping steam or smoke is 
 visible, which may be approved by 
 the state board of railroad com- 
 missioners, and consented to by 
 the owners of one-half of the 
 property bounded on that portion 
 of the railroad, with respect to 
 which a change of motive power 
 is proposed; and if the consent of 
 such property-owners cannot be 
 obtained, the determination of 
 three disinterested commissioners, 
 appointed by the appellate division 
 of the supreme court of the de- 
 partment in which such railroad 
 is located, in favor of such motive 
 power, confirmed by the court, 
 shall be taken in lieu of the con- 
 sent of the property-owners. The 
 consent of the property-owners 
 shall be obtained and the proceed- 
 ings 'for the appointment and the 
 determination of the commission- 
 
MOTIVE POWER. 
 
 199 
 
 erty.'*^ The tendency of the courts is to so construe statutes 
 authorizing municipalities to grant the use of the streets 
 within their limits for street railroad purposes as to give the 
 local authorities practical control over the motive power to 
 be employed. The public good requires that the common 
 council of any city should be at liberty to place at the ser- 
 vice of the public street railroads with all the valuable im- 
 provements in the means of propulsion which ingenuity and 
 science from time to time discover, the matter of public 
 safety and public inconvenience being left to be considered 
 
 ers and the confirmation of their 
 report shall be conducted in the 
 manner prescribed in sections 
 ninety-one and ninety-four of this 
 article, so far as the same can 
 properly be made applicable 
 thereto. Any railroad corporation 
 making a change in its motive 
 power under this section, may 
 make any changes in the construc- 
 tion of its road or roadbed or other 
 property rendered necessary by 
 the change in its motive power. 
 Where a street surface railroad in 
 the counties of Herkimer and 
 Hamilton is located wholly out- 
 side the limits of an incorporated 
 city or village, such railroad may, 
 with the approval of the state 
 board of railroad commissioners, 
 be operated by locomotive steam 
 power, provided that such steam 
 power is generated by oil from 
 and including April fifteenth to 
 and including November thirtieth, 
 and by either oil or coal from and 
 including December first to and 
 including April fourteenth. (As 
 amended by chap. 676 of 1892, 
 chap. 584 of 1899, chap. 679 of 
 igoo, and chap. 553 of 1901.) " 
 
 43. Re Rochester & Lake On- 
 tario R. Co., SI App. Div. (N. 
 Y.) 6s, 64 St. Rep. (N. Y.) 
 429. 
 
 In the case cited the court said: 
 " Had the legislature intended a 
 radical change in the law, such as 
 from value to frontage, it is prob- 
 able words appropriate to ex- 
 press such intention would have 
 been incorporated in the act. 
 While it may not have been re- 
 quired by the Constitution, we 
 think the intention of the legisla- 
 lature was to conform the practice 
 in obtaining the consent of the 
 property-owners to a change of 
 motive power to that prescribed 
 for obtaining their consent to the 
 original construction and operation 
 of the road, and we do not con- 
 sider that the omission of these 
 words from this section, occurring 
 in the manner we have pointed out, 
 manifests the change of such legis- 
 lative intent." (Page 69.) But see 
 to the contrary, St. Mich'l P. E. 
 Ch. V. Forty-second St., etc., R. 
 Co., 26 Misc. Rep. (N. Y.) 601, 
 57 N. Y. Supp. 881. 
 
200 STREET SURFACE RAILROADS. 
 
 by the common council.^* It should be remembered how- 
 ever that as against the pubHc grantor, the grantee must rely 
 upon the express words in the statute, or upon a necessary 
 implication. If there exist a doubt as to the extent of the 
 grant, or any ambiguity as to its terms, such doubt must be 
 resolved against and such ambiguity must operate against 
 the grantee in favor of the public. Therefore a grant to 
 use electric or chemical motors or grip cables as the pro- 
 pelling power of their cars instead of horses, provided the 
 municipal authorities consent, does not legalize the erection 
 of poles and the stretching of wires in the public street as a 
 part of the system of electric railroading and an abutter own- 
 ing to the middle of the street can use the writ of certiorari 
 to test the validity of an ordinance which purports to confer 
 the power to place such poles and wires upon his land lying 
 in the street.*^ So a street railroad company, the articles of 
 incorporation of which provide " that said railway is to be 
 operated by horse power," cannot change to the overhead 
 trolley system, and municipal corporations have no right to 
 authorize such change.** Where the law expressly forbids 
 a street railroad company to use the electric trolley system 
 
 44. See Buckner v. Hart, 4 Am. Am. & Eng. R. Cas. 391; Denver, 
 Electl. Cas. 21-23, 52 Fed. 83s; etc., R. Co. v. Denver City R. 
 Reeves v. Traction Co., 4 Am. Co., 2 Colo. 681; Citizens' St. R. 
 Electl. Cas. 24, 152 Pa. St. 153, 31 Co. v. Jones, 34 Fed. 579; Birming- 
 W. N. C. 26s, 25 Atl. 516, 32 Am. ham, etc., St. R. Co. v. Birming- 
 L. Reg. 127. ham St. R. Co., 79 Ala. 465, 58 Am. 
 
 45. State, Green, Pros. v. Tren- Rep. 615; Mayor, etc., of Allegheny 
 ton, 4 Am. Electl. Cas. 30, S4 N. v. Ohio, etc., R. Co., 26 Pa. St. 
 J. L. 92, 23 Atl. 281. And see Far- 355; N. Chicago City R. Co. v. 
 rell v. Winchester Ave. R. Co., 61 Lake View, 105 111. 207, 11 Am. 
 Conn. 127, 23 Atl. 757; Houston v. & Eng. R. Cas. 42, 44 Am. Rep. 
 Houston B. & M. P. R. Co., 84 788. 
 
 Tex. 581, 19 S. W. 786; People ex 46. Haines v. Twenty-second St., 
 
 rel. v. Newton, 112 N. Y. 396, 19 etc., Ry. Co. (Pa. C. P.), 4 Am. 
 N. E. 831, I N. Y. Supp. 197, 38 Electl. Cas. 42, i Pa. Dist. 506. 
 
MOTIVE POWER. 
 
 20 1 
 
 it can confer upon its lessee no right to use the same and a 
 resolution of local authority authorizing such lessee company 
 to use " any mechanical power except steam," must be con- 
 strued to mean any power which the company could legally 
 use, and not to warrant the use of the trolley system/^ 
 Legislative authority to a street railroad company to use 
 " such motive power as they may deem expedient and 
 proper," does not confine the company to such methods as 
 were known when the law was enacted, but includes the elec- 
 tric trolley system, though it was then unknown.^^ The 
 right of a street surface railroad company to operate its cars 
 by a power not specified in its charter can only be raised by 
 
 47. State, Lewis, Pros. v. Free- 
 holders, 4 Am. Electl. Cas. 48, 
 56 N. J. L. 416, 28 Atl. SS3- 
 
 The grant of an exclusive fran- 
 chise to a street railroad com- 
 pany to operate a " city rail- 
 ivay," providing, among other 
 things, that steam power should 
 not be used except with con- 
 sent of the common council, 
 and that bells should be at- 
 tached to the horses, does not 
 mean, because of the use of such 
 words, and of the fact that horse 
 power was the only power then in 
 use, that the motive power should 
 be limited to steam or horse power, 
 or prohibit the use of electricity, 
 so that the grant of the right to 
 another company to use electricity 
 would not be a violation of the 
 franchise. Wilmington City Ry. 
 Co. V. Wilmington B. S. Ry. Co. 
 (Del. Ch.), 46 Atl. 12. And see 
 O'Neill V. Hestonville, etc., Ry. 
 Co. (Pa. C. P.), 9 Pa. Dist 2. 
 
 48. Paterson Ry. Co. v. Grundy, 
 ,4 Am. Electl. Cas. 73, Si N. J. Eq. 
 
 213, 26 Atl. 788; H. R. T. Co. V. 
 W. T. & R. Co., 13s N. Y. 393. 
 17 L. R. A. 674. 48 St. Rep. (N. 
 Y.) 417, 31 Am. St. Rep. 838, 6 
 Am. R. & Corp. Rep. 619, 32 N. E. 
 148; Detroit City R. Co. v. Mills, 
 8s Mich. 634, 46 Am. & Eng. R. 
 Cas. 608, 48 N. W. 1007, 10 Ry. 
 & Corp. L. J. 104; Lockhart v. 
 Craig St. R. Co., 139 Pa- St. 419, 
 47 Am. & Eng. R. Cas. 57, 9 Ry- 
 & Corp. L. J. 183, 21 Atl. 26; Bell 
 Tel. Co. V. Montreal St. R. Co., 
 Rap. Jud. Quebec, 6 B. R. 223, 
 ID C. S. 162; Hooper v. Baltimore 
 City Pass. R. Co., 85 Md. 509, 38 
 L. R. A. 509, 37 Atl. 359- 
 
 The use of steam motors by a 
 railway company, such as are 
 known as noiseless, although in 
 fact not noiseless, is authorized by 
 action on the part of the common 
 council of a city permitting the 
 use of noiseless steam motors, the 
 common council knowing they 
 were not in fact noiseless. Farnum 
 V. Concord H. R. Co., 66 N. H. 
 569, 29 Atl. S4I. 
 
202 STREET SURFACE RAILROADS 
 
 the government with whom its contract was made, and is not 
 subject to collateral attack in a private action to recover for 
 injuries.'*' A street railroad company having the right to 
 cross the tracks of another company by using a steam dummy 
 engine may also cross by use of an electric trolley strung 
 above the track when there is nothing to show that its use 
 will entail any additional annoyance or be more dangerous 
 than the previous method. '" A street railroad company hav- 
 ing the right to use a trolley system, although in fact using 
 steam at the time another company, with knowledge of its 
 rights, constructed an intersecting trolley road, need not pay 
 the latter company any compensation for damages resulting 
 to it from the former company's adoption of a trolley sys- 
 tem instead of steam, thereby creating the tendency to mingle 
 the electric currents, and create short circuits at the cross- 
 ing.5' Under the New York statute where the State rail- 
 road commissioners approve an application for the change 
 of motive power stating separately various sections (the en- 
 tire system consisting of several lines), as to which a change 
 is sought, the railroad corporation must produce the consents 
 of the owners of one-half of the property, bounded upon the 
 particular section sought to be changed, such consents exe- 
 cuted by attorneys in fact or by executors or by holders of 
 
 49. Chicago Gen. Ry. Co. v. street as to constitute a nuisance. 
 
 Chicago City Ry. Co., 87 111. App. Hine v. Bay City Consol. St. R. 
 
 17; affd., 57 N. E. 822. Co., 115 Mich. 204, 73 N. W. 116, 
 
 In the case cited, it was held that, 4 Det. Leg. N. 813. 
 
 although the corporation was char- 50. Philadelphia W. C. Tp. Co. 
 
 tered to operate street cars by ani- v. Philadelphia, etc., R. Co. (Pa. 
 
 mal power, the mere fact that it C. P.), 5 Pa. Dist. 305. 
 
 actually operated them by means 51. Birmingham R. & El. R. Co. 
 
 of an underground cable, and ran v. Birmingham & T. Co., 122 Ala. 
 
 three cars at a time, at increased 349, 25 So. 192; affd. on rehearing, 
 
 speed, instead of one, was not 121 Ala. 475, 25 So. 777. 
 such a wrongful obstruction of the 
 
MOTIVE POWER. 
 
 20S 
 
 a naked power to sell, cannot be declared valid unless the 
 instruments, which confer authority, are produced and ex- 
 amined. Without such consents it may be restrained from 
 proceeding to make the change at the suit of an abutting 
 owner.5^ The action of the board of railroad commissioners 
 in approving or disapproving an application to change mo- 
 tive power upon a street railroad is in its nature judicial and 
 reviewable by the Appellate Division of the Supreme Court.^^ 
 But the board itself, having granted an application for a 
 change of motive power, cannot subsequently reconsider or 
 review its own action whereby the company has acquired a 
 right in the nature of a franchise, s* A statute allowing cities 
 to permit the use of electricity on street railroads ratifies a 
 previous consent by the city to the use of such power on the 
 faith of which large expenditures have been incurred.^s 
 
 52. St. Michael's P. E. Ch. v. 
 Forty-second St., etc., R. Co., 26 
 Misc. Rep. (N. Y.) 601, 57 N. Y. 
 Supp. 881. 
 
 Where the abutting property-own- 
 ers are requested to consent to the 
 construction and operation of a 
 street surface railroad "to be op- 
 erated by electricity or any motive 
 power other than locomotive steam 
 power that may be approved by the 
 state board of railroad commission- 
 ers," the refusal of property-owners 
 to sign such consent cannot be said 
 to be a refusal to consent to the 
 construction and operation of the 
 road which the railroad company is 
 authorized to construct and operate, 
 and consequently it cannot afford a 
 basis for an application by the rail- 
 road company to the appellate di- 
 vision for the appointment of com- 
 missioners to determine whether 
 
 the proposed road should be con- 
 structed. Matter of Kingsbridge 
 R. Co., 66 App. Div. 497. 
 
 53. People ex rel. Babylon R. 
 Co. V. Commissioners, 32 App. 
 Div. (N. Y.) 179, 52 N. Y. Supp. 
 908. 
 
 54. People ex rel. Luckings v. 
 Commissioners, 30 App. Div. (N. 
 Y.) 69, 51 N. Y. Supp. 71; affd., 
 156 N. Y. 693. 
 
 55. City Ry. Co. v. Citizens' St. 
 R. Co., 166 U. S. 557, 41 L. Ed. 
 1 114, 17 Sup. Ct. Rep. 653. 
 
 A city may by ordinance grant 
 the right to use electric motors 
 instead of horses for street cars 
 without attempting to legalize the 
 size or weight of the cars to be 
 used or the speed at which they 
 shall run; abutting owners cannot 
 be said to be injured since the 
 privileges granted are capable of 
 
204 STREET SURFACE RAILROADS. 
 
 Where the legislature authorized a change to electrical power 
 by railroad, provided the State board of railroad commis- 
 sioners consented, it is to be presumed that it meant the 
 electrical power should be applied in a way which would not 
 contravene its established policy as to overhead wires in New 
 York city. And the fact that a permit from the board of 
 electrical control is not obtained does not make the act of 
 the commissioner of public works of that city, in granting 
 the permit to excavate streets and avenues in order to change 
 the motive power of the railroad, illegal.'* 
 
 being used without excessive or Electl. Cas. 137, 58 N. J. L. (29 
 
 unusual injury to abutting lands. Vroom) 669, 33 L. R. A. 129, 4 
 
 A double track for such trolley Am. & Eng. R. Cas. (N. S.) 392, 
 
 cars is not necessarily injurious or 34 Atl. 1090. 
 
 unreasonable either with respect to 56. Potter v. Collis, 19 App. Div. 
 
 public convenience or to private (N. Y.) 392, 46 N. Y. Supp. 471; 
 
 property. State, Roebling v. affd. on other questions, 156 N. Y. 
 
 Trenton Pass. R. Co., 6 Am. 16, 50 N. E. 413. 
 
MUNICIPAL REGULATION. 205, 
 
 CHAPTER IV. 
 Regulation; Paving; Repairs. 
 
 Section i. General power of municipality to regulate. 
 
 2. How power usually conferred and exercised. 
 
 3. Regulation as to servants, equipments, fares, etc. 
 
 4. Regulations as to care and manner of running cars. 
 
 5. Regulation as to care of streets; removing dirt, snow, and. 
 
 ice, etc. 
 
 6. Reports; license fees and percentages to municipality. 
 
 7. Location of track. 
 
 8. Construction of roadbed, track, turnouts, and switches. 
 
 9. Remedies for unauthorized or defective construction. 
 
 10. Construction and maintenance; how enforced. 
 
 11. Placing electrical conductors underground. 
 
 12. Paving and repaying. 
 
 13. Repairs. 
 
 14. Repair of bridges. 
 
 15. Liability of company for neglect to repair; how enforced. 
 
 16. Lessees' or transferees' liability. 
 
 § 1. General power of municipality to regulate. — Ordinarily- 
 the common council or other legislative body of a munici- 
 pality is, by statute, clothed with power to regulate the streets 
 by ordinance, and also to provide, by ordinance, the manner 
 in which corporations or persons shall exercise any privilege 
 granted them in the use of the same, to prevent immoderate 
 riding or driving therein, to regulate the running of locomo- 
 tives and railroad, cars therein, and by ordinance, so far as 
 may be necessary, to provide for the good government, 
 order, and protection of property and persons. The legis- 
 lature, when it authorized the use of the public streets for 
 street railroad purposes, was presumed to have intended that 
 the grantee of the franchise should hold its privileges subject 
 to such regulations as were reasonably necessary for the com- 
 mon use of the street for a street railroad and for ordinary 
 
,206 STREET SURFACE RAILROADS. 
 
 travel. Nearly all kinds of reasonable regulations can be 
 imposed upon street railroads in the use of streets by a munic- 
 ipality, under the authority granted by the legislature to 
 pass ordinances to regulate the use of the streets, and such 
 regulations are never declared unlawful on the ground that 
 they impair the franchises of the company. The power 
 granted to municipal bodies to legislate by ordinance, is a 
 grant to a subordinate body, and its legislative acts, when 
 counter to the acts of the State legislature, must give way; 
 but these companies nevertheless hold their franchises sub- 
 ject to such municipal regulations as do not unreasonably 
 interfere with the exercise of the franchises conferred by the 
 legislature. The franchises are exercised upon a public high- 
 way, for the public benefit, which highway is acquired and 
 improved for the benefit and advantage of the public at 
 large. The position is different from that of a railroad com- 
 pany exercising its franchises upon a roadbed of its own. 
 The grantee in the former case is subject to municipal regnla- 
 tions of a greater scope in the interests of the public at large 
 than would be justifiable in the case of the companies occu- 
 pying and using their own roadbeds. Under this power, 
 ordinances regulating the use of the streets by street rail- 
 ways have become frequent, especially so since the intro- 
 duction of electricity as a motive power, with its capacity 
 for a high rate of speed, as well as other dangerous and 
 obstructive capacities. Their operation must be reasonably 
 safe, reasonably consistent and in harmony with the legal 
 customary use of the street by the general public; and ordi- 
 nances to enforce this rule of law are reasonable in purpose 
 and effect. Even direct legislative authority to a street rail- 
 road company to carry passengers through the streets of a 
 city does not exempt the corporation from municipal or 
 
MUNICIPAL REGULATION. 20^ 
 
 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 like business con- 
 ducted by private persons. A grant to a corporation of the 
 right to own property and transact business confers no immu- 
 nity from any police control to which a citizen could be sub- 
 jected; and a reasonable regulation of the enjoyment of the 
 franchise is not a denial of the right nor an invasion of the 
 franchise, or a deprivation of its property, or interference 
 with the business of the corporation. The company is pre- 
 sumed to know that the business of operating a city street 
 railway must be conducted under such reasonable rules and 
 regulations as the municipality may impose, and subject to 
 its share of the burdens incident to the conduct of the munic- 
 ipal government.' The question then is, what are reason- 
 able regulations? Now, it is within the inherent police 
 power of a municipal corporation to regulate or restrain the 
 use of electricity as' a motive power within the corporate 
 limits f and any ordinance justified by the danger of such 
 
 I. State, Cape May, etc., Co., A. 609, 7 Am. & Eng. R. Cas. 
 
 Pros. V. City of Cape May (N. (N. S.) 585. 
 
 J. Sup.), 6 Am. Electl. Cas. 49, 2. State, Wisconsin Tel. Co. v. 
 
 52, S3, citing Dill. Mun. Corp. (4th Janesville St. Ry. Co., 5 Am. 
 
 ed.), § 720; Trenton H. R. Co. v. Electl. Cas. 289, 87 Wis. 72, 57 
 
 City of Trenton, 53 N. J. L. 132; N. W. 970; Van Hook v. Selma, 
 
 Consolidated T. Co. v. Elizabeth, 70 Ala. 361; Mutual N. Y. Tel. 
 
 34Atl. 146. And see 6 Am. Electl. Co. v. Chicago, 16 Fed. 309; D., 
 
 Cas. 42-37, apparently different L. & W. Co. v. East Orange, 41 
 
 appeals concerning the same mat- N. J. L. 127; W. U. Tel. Co. v. 
 
 ter between the same parties, 34 Philadelphia (Pa. Sup.), 12 Atl. 
 
 Atl. 397, 58 N. J. L. (29 Vroom) 144; Toledo, W. & W. R. Co. v. 
 
 56s, 3 Am. & 'Eng. R. Cas. (N. Jacksonville, 67 111. ZT, Sioux City 
 
 S.) 592; aflfd. in part and revd. St. R. Co. v. Sioux City, 138 U. S. 
 
 in part in N. J. Err. & App., 60 98, 34 L- Ed. 898. 
 N. J. L- 224, 37 Atl. 892, 39 L^ R- 
 
208 STREET SURFACE RAILROADS. 
 
 use cannot be regarded as unreasonable. An ordinance de- 
 claring the turnouts of a street railroad company to be an 
 unlawful obstruction, and directing the street committee to 
 employ counsel and take lawful measures to remove them, 
 is not unreasonable although permission had been granted 
 by a city ordinance for the company to lay its tracks and con- 
 struct all necessary turnouts. , But where a single street 
 railway turnout 1,500 feet long had been built pursuant to 
 permission granted by the city council to build necessary 
 turnouts and had been in use a long time, and had been made 
 by connecting two turnouts each 500 feet long, which had 
 been built more than two years before and maintained with- 
 out objection, by constructing an intervening 500 feet of 
 turnout so as to make one continuous turnout, an ordinance 
 passed without notice or hearing directing its removal is 
 unreasonable. 3 An ordinance requiring all passenger cars 
 operated by electric power in any street of the city to have 
 proper and suitable fenders to prevent accidents, and making 
 it unlawful to operate such cars in the street without such 
 fenders, is not unreasonable.* Where the statute authorizes 
 the common council of the city to make such reasonable 
 regulations and ordinances as to the rate of speed, mode of 
 use of tracks and removal of ice and snow as the interests or 
 
 3. Cape May v. Cape May, etc., to be equipped with fenders 4x- 
 R. Co. (N. J. Err. & App.), 60 tending to within " not more than 
 N. J. L. 224, 39 L. R. A. 609, 7 Am. three inches from the tracks " is 
 & Eng. R. Cas. (N. S.) 585, 37 unreasonable, since no fender can 
 Atl. 892. be attached immovably so that it 
 
 4. State, Cape May, etc., Co., will at all times remain at the re- 
 Pros. V. Cape May (N. J. Sup.), quired height above the track and 
 59 N- J. L. (30 Vroom) 396, all parts thereof. City of Brook- 
 36 L. R. A. 6S3, 2 Chic. L. J. lyn v. Nassau El. Ry. Co., 38 App. 
 Wkly. 224, 6 Am. & Eng. R. Div. (N. Y.) 365, 56 N. Y. Supp. 
 Cas. (N. S.) sii, 36 Atl. 696. But (90 St. Rep.) 609. 
 
 an ordinance requiring electric cars 
 
MUNICIPAL REGULATION. 209 
 
 convenience of the public may require, it relates solely to the 
 preservation of the interests and convenience of the public in 
 the use of the streets and tracks as such, and any regula- 
 tions, to be lawful, must be directed to matters connected 
 with the construction and operation of the cars which in 
 some manner involve and afifect the streets and tracks and 
 their use. Therefore the common council would have no au- 
 thority to direct that during the winter months no car should 
 be operated upon any street railroad of the city unless such 
 car should have a vestibule built upon each end thereof suffi- 
 cient to afiford protection from the weather to motormen, con- 
 ductors, and others standing upon the platforms of such cars. 
 However reasonable such ordinance may be in itself it is to be 
 condemned as an exercise of a power not inherent to mu- 
 nicipal existence, an interference with the affairs of the com- 
 pany which the legislature has failed and apparently refused 
 to authorize, and the assertion of a right on the part of the 
 city which it did not, so far as appears, reserve to itself as a 
 condition of the consent to the use of its streets by the com- 
 pany, s An ordinance prohibiting the use of salt on a street 
 railroad track, except on curves at street corners, is not 
 invalid as an impairment of the franchise of the company, 
 or a restriction of the operation of its road, merely because 
 
 5. City of Yonkers v. Yonkers cil, giving consent to a street rail- 
 
 Ry. Co., 51 App. Div. (N. Y.) 271, road company to place posts and 
 
 64 N. Y. Supp. (98 St. Rep.) 955. stretch wires in a street, and pre- 
 
 An ordinance requiring a street scribing the size and location of 
 railroad company to run its lines the poles and limiting the speed 
 along narrow streets, over a nar- of the railroads when operated by 
 row bridge and near to existing electricity, is a street regulation 
 tracks, is unreasonable. Woon- which, under the charter of New- 
 socket St. R. Co. V. Woonsocket ark, must be by ordinance. State, 
 (R. I.), 46 Atl. 272. Halsey, Pros. v. Newark (N. J.), 
 
 Resolution of the common coun- 4 Am. Electl. Cas. 40, 44. 
 
 14 
 
2IO STREET SURFACE RAILROADS. 
 
 it will occasion inconvenience or involve expense or prevent 
 the company from operating its road so successfully, and 
 evidence that the use of salt is necessary to make it possible 
 to run street cars at a low place in w,hich the water gathers 
 during the day and freezes at night is not sufficient to show 
 that the ordinance prohibiting its use is unreasonable, since 
 it does not appear that at reasonable expense the water can- 
 not be diverted from the tracks.^ A city ordinance to cor- 
 rect abuses of the transfer system by compelling a passenger 
 to use his transfer within the time limit and prohibiting him 
 from selling it or giving it away is not unreasonable or 
 oppressive/ The general rule is that the word " may " im- 
 poses a duty whenever it is employed in a statute to delegate 
 a power, the exercise of which is important for the protec- 
 tion of public or private interests, and where the statute so 
 authorizes a municipal board to designate the number of 
 street railroad tracks that shall be laid in any street, lane, or 
 avenue of the city, the court cannot set aside as unreasonable 
 an ordinance which authorizes the laying of double tracks.* 
 Where under authority a street railroad company has laid 
 double tracks in many city streets, it is a reasonable regula- 
 
 6. State, Consolidated T. Co. v. and economical operation of the 
 Elizabeth, 58 N. J. L. (29 Vroom) railway " is unreasonably vague, 
 619, 32 L. R. A. 170, 3 Am. & and delegates a discretion which 
 Eng. R. Cas. (N. S.) 614, 34 Atl. the municipal board itself was 
 146- bound to exercise ; that the statute 
 
 7. Ex p. Lorenzen, 128 Cal. 431, forbade the laying of any track or 
 SO L. R. A. 55, 61 Pac. 68. tracks along any street unless the 
 
 8. State, Kennelly et al. v. Jer- consent of the governing municipal 
 sey City (N. J. Sup.), 5 Am. Electl. body was first obtained, and that 
 Cas 146. In the case cited, it was thereby it was to be fairly implied 
 held that an ordinance empowering that the public body should know 
 the company to construct " any what particular tracks the com- 
 and all necessary curves, sidings, pany proposed to lay before it de- 
 crossovers, and switches, that may termined whether it .would consent 
 be required for the proper, safe, or not. 
 
MUNICIPAL REGULATION. 
 
 211 
 
 tion of the use of one of those streets to, thereafter and be- 
 fore the completion and operation of the road therein, pro- 
 vide that but a single track in that street should be used in- 
 stead of the double tracks which had been first provided for.«^ 
 A street railroad company is bound by the terms of an ordi- 
 nance granting- its franchises, rights, and limiting the speed 
 of its cars, and having accepted the benefits thereunder it 
 cannot insist that any part thereof is unreasonable.^ So, 
 where it is authorized to put in a Y at a given street with the 
 proviso that it shall, if so ordered by the common council, 
 remove the Y within sixty days after service upon it of a 
 copy of an order of the common council directing it to do so, 
 it is bound by such agreement and must remove the Y when 
 ordered. If it accept an ordinance granting the right to lay 
 its track in the streets requiring them not to be raised above 
 
 854. Baltimore v. Baltimore T. 
 & G. Co., 166 U. S. 673, 41 L. Ed. 
 1 160. In the case cited, the court 
 said: "While that ordinance pro- 
 vided generally for double tracks 
 through the streets mentioned 
 therein, the reduction of the right 
 to use two tracks and the granting 
 of the right to use but one for such 
 a comparatively short distance in 
 one particularly crowded and nar- 
 row thoroughfare was not a regu- 
 lation inconsistent with the terms 
 of the original ordinance. It would, 
 we think, be unreasonable to hold 
 that the least limitation of the 
 power to operate double tracks was 
 an infringement and impairment of 
 the contract as set forth in the 
 ordinance. In our opinion, the 
 ordinance does not give any such 
 cast-iron right or one which shall 
 Tae beyond any reasonable limita- 
 
 tion and supervision by the city. 
 It granted the use of the streets 
 for double tracks for many miles, 
 and the subsequent limitation of 
 that use to one track related to 
 but a few hundred feet where pe- 
 culiar and exceptional conditions 
 existed, where the danger to be 
 apprehended from the use of elec- 
 tric cars or double tracks in a nar- 
 row and busy thoroughfare, was 
 very great, and where it might 
 fairly be decided by the common 
 council that double tracks at that 
 point would be an unreasonable 
 and dangerous use of the street by 
 the company and directly tend to 
 prevent its reasonable and safe use 
 and enjoyment by the public at 
 large." (Pages 683, 684.) 
 
 9. Chouquette v. Southern El. 
 Ry. Co., 152 Mo. 257, S3 S. W. 
 897. 
 
212 STREET SURFACE RAILROADS. 
 
 the surface, and to be so laid and maintained that vehicles 
 can freely cross at any point, it must fill up the surface of the 
 streets along the outside of the rails where it wears or wastes 
 away, and cannot be regarded as a trespasser in so doing.'" 
 If the ordinance is conditioned that it shall keep the surface 
 of the street inside its rails and six inches outside its tracks 
 in good repair, then it must keep all its lines within the 
 municipality in such repair, although it was authorized to 
 construct and operate a part of those lines by an act impos- 
 ing no such duty." If it require the railroad company to 
 complete its tracks within the streets and put them in opera- 
 tion within one year, the consent of the municipality is lim- 
 ited to one year unless the road is actually operated within 
 that time.'^ An ordinance authorizing it to put in "such 
 turnouts, switches, and sidetracks as may be deemed neces- 
 sary," and providing that the whole length of the road shall 
 be deemed one road, does not authorize the construction by 
 the company of a Y switch to make a turning point for 
 another street railroad company.'^ Whenever any regula- 
 
 10. Baumgartner v. Mankato, 6a in the middle thereof was used for 
 Minn. 244, 62 N. W. 127. a driveway. It was held that 
 
 11. Duluth V. Duluth St. Ry. where the track was within the 
 Co., 60 Minn. 178, 62 N. W. 267. sixteen feet driveway the company 
 In the franchise of a street rail- must continue the grading upon 
 road company it was provided that its tracks, but where the track was 
 the track should be laid along the wholly without such driveway the 
 north side of the highway and in grading need only continue to the 
 such manner as to obstruct as lit- south rail. People v. Detroit, Y. 
 tie as possible the free passage of & A. A. Ry. Co. (Mich.), 81 N. 
 vehicles " along " the highway, W. 336. 
 
 and that that portion of the high- 12. Grey v. N. Y. & P. T. Co., 
 
 way lying adjacent to the south 56 N. J. Eq. 463, 40 Atl. 21; At- 
 
 rail of the track be properly chison St. Ry. Co. v. Nave, 38 
 
 dressed to the track in order that Kan. 744, 17 Pac. 587. 
 
 vehicles might easily cross. The 13. Rapid R. Co. v. Mt. Clemens, 
 
 highway was sixty-six feet wide 118 Mich. 133, 76 N. W. 318, 5 
 
 and a space of about sixteen feet Det. Leg. N. 475. 
 
MUNICIPAL REGULATION. 21 3 
 
 tion has been made, with authority, as to the existing road, 
 the same regulation will be applicable to any extension of 
 the same road within the city limits."* If the rights of the 
 railroad company are acquired subject to a constitutional 
 provision that all its privileges and franchises shall be sub- 
 ject to legislative control, and that there shall be no irrevo- 
 cable or uncontrollable grant of special privileges or immu- 
 nities, an enlargement of the liability of the company for 
 paving a street is not unconstitutional. '^ In Ohio it has 
 been held that power is not conferred upon cities by the 
 Ohio Revised Statutes, § 3438, to authorize street rail- 
 road companies to extend their tracks over State or county 
 roads under the supervision of the county commissioners 
 without condemnation or an agreement with the commis- 
 sioners, but only to grant such right subject to the obligation 
 of making such agreement or instituting such proceedings.'* 
 In New York, where the General Railroad Act gives street 
 railroad companies the power to construct necessary sidings 
 or turnouts, provided it obtain authority therefor from the 
 city authorities, a street railroad company has no right to 
 maintain a siding on Ninth avenue in the city of Brooklyn 
 unless it has first obtained the consent of the common coun- 
 cil, although another statute granted to the department of 
 parks in the city of Brooklyn full and exclusive power to 
 determine the particular location of any railroad track which 
 was then or might thereafter be placed upon the roads, 
 streets, or avenues forming the boundary of the park (of 
 
 14. St. Louis V. Missouri R. Co., land El. Ry. Co. (C. P.), 3 Ohio 
 13 Mo. App. 524. Dec. 92, I Ohio N. P. 413. 
 
 15. Storrie v. Houston St. R. 16. Citizens' El. R., L. & P. Co. 
 Co., 92 Tex. 129, 46 S. W. 796, 44 v. County Comrs., 56 Ohio St. 1, 
 L. R. A. 716; Cleveland v. Cleve- Z7 Ohio L. J. 165, 46 N. E. 60. 
 
214 STREET SURFACE RAILROADS. 
 
 which avenues Ninth avenue was one).''' A court of equity 
 cannot interfere with the rhanner in which an electric railroad 
 shall be constructed upon a public highway over which a 
 municipality, like a county, has control.'* 
 
 § 2. How power usually conferred and exercised. — The legis- 
 lature either expressly authorizes municipalities to enact reg- 
 ulations to control the operation of street railroads upon the 
 streets of a city as to certain specific matters, or it subjects 
 the operation thereof to such reasonable rules and regula- 
 tions in respect thereto as the common council of the city 
 may from time to time prescribe. Sometimes the statutes 
 of a State direct what regulations shall be made in specific 
 instances and also authorizes the making of reasonable rules 
 and regulations to otherwise control such operation in the 
 discretion of the common council. An ordinance within the 
 power so expressly granted to control specific instances can- 
 not be declared void or unreasonable by the courts where 
 the act conferring the power does not violate any constitu- 
 tional inhibition.'^ If the power exists courts can only con- 
 
 17. Irvine v. Atlantic Ave. R. public place in any city or village 
 Co., 10 App. Div. (N. Y.) 560, 42 shall have and keep in permanent 
 N. Y. Supp. 1 103. repair that portion of such street, 
 
 18. Ranken v. St. Louis & B. avenue or public place between its 
 Sub. Ry. Co., 98 Fed. 479. tracks, the rails of its tracks, and 
 
 19. Mayor v. D. D., E. B. & B. two feet in width outside of its 
 R. Co., 133 N. Y. 104, 44 St. Rep. tracks, under the supervision of 
 (N. Y.) 94, 30 N. E. 563; Haines the proper local authorities, and 
 v. Cape May, 50 N. J. L. 55 whenever required by them to do 
 
 New York has the following so, and in such manner as they 
 
 statutory provision: may prescribe. In case of the 
 
 " § 98. Repair of streets; rate neglect of any corporation to 
 
 of speed; removal of ice and make pavements or repairs after 
 
 snow — Every street surface rail- the expiration of thirty days notice 
 
 road corporation so long as it to do so, the local authorities may 
 
 shall continue to use any of its make the same at the expense of 
 
 tracks in any street, avenue or such corporation, and such authori- 
 
MUNICIPAL REGULATION. 21 5 
 
 strue the extent thereof and have nothing to do with the 
 unreasonableness of the ordinance or the injustice of carrying 
 it into effect. It must always be remembered that the com- 
 mon council of any municipahty can exercise only such 
 powers as have been specially delegated to it by the legisla- 
 ture ; and such other powers as may be necessary to carry into 
 effect any and all the powers vested in the municipal corpora- 
 tion. Where the court can inquire into the reasonableness 
 of an ordinance a question of law is presented for the court 
 to decide upon a consideration of all the facts and circum- 
 stances of the case. The presumption is always in favor of 
 the reasonableness of the ordinance, and the burden is upon 
 the person or corporation alleging the contrary to show it. 
 The common council acts as a public or municipal agent and 
 exercises an authority which was delegated to it by the legis- 
 lature as being the proper and representative body to make 
 rules and regulations to which the railroad company should 
 be subject. In the passage of a general ordinance affecting 
 subjects of municipal administration it should and will be 
 presumed that the common council acted in the exercise of 
 a judgment upon facts and for reasons calling for such legis- 
 lative action.^" The power to regulate or to make regula- 
 
 ties may make such reasonable regulation." (Railroad l.aw, as 
 
 regulations and ordinances as to amended by chap. 676 of 1892; 3 
 
 the rate of speed, mode of use of Heydecker's Gen. Laws [2d ed.], 
 
 tracks, and removal of ice and 3316, § 98.) 
 
 snow, as the interests or conven- 20. Mayor v. D. D., E. B. & B. 
 
 ience of the public may require. R. Co., 133 N. Y. 104, iii, 44 St. 
 
 A corporation whose agents or Rep. (N. Y.) 94, 30 N. E. 563. In 
 
 servants willfully or negligently the case cited, the court also said: 
 
 violate such an ordinance or regu- " Presumptively, the ordinance was 
 
 lation, shall be liable to such city required in the interests of the 
 
 or village for a penalty not ex- public, for whose convenience rail- 
 
 ceeding five hundred dollars to be road companies hold and must 
 
 specified in such ordinance or operate their franchises, but the 
 
2l6 
 
 STREET SURFACE RAILROADS. 
 
 tions is a broad one. The word " regulate " is one of broad 
 import. It is the word used in the Federal Constitution to 
 define the power of Congress over foreign and inter-State 
 commerce, and he who reads the many opinions of the 
 United States Supreme Court will perceive how broad and 
 comprehensive it has been held to be. Where the city gives 
 a right to the use of its streets it simply regulates that use 
 when it prescribes the terms and conditions upon which they 
 shall be used. This power of regulation is a continuing 
 power and is not exhausted by being once exercised, and so 
 long as the object is plainly one of regulation the power may 
 be exercised as often as and whenever the common council 
 may think proper; the use of the street may be subjected to 
 
 presumption is open to rebuttal by 
 this defendant by giving in evi- 
 dence facts which shovir that, in 
 its case, its enforcement would be 
 unreasonable, and that the con- 
 venience of the public, or of pas- 
 sengers, did not require such a 
 regulation " (the regulation re- 
 quired street surface railroads to 
 run not less than one car every 
 twenty minutes, between the hours 
 of 12 midnight and 6 o'clock, a. m., 
 each and every day, both ways, for 
 the transportation of passengers). 
 " It was, therefore, competent for 
 this defendant upon the trial to 
 give evidence of such facts as 
 would establish, or tend to estab- 
 lish, that the convenience of pas- 
 sengers, or of the public, did not 
 require the running of its cars 
 during the ordinance hours speci- 
 fied. Such facts were plainly 
 relevant to the issue and bore upon 
 the question of the reasonableness 
 of the ordinance in the defendant's 
 
 case. Undoubtedly the reasonable- 
 ness of the ordinance was a ques- 
 tion of law for the court to decide 
 upon a consideration of all the facts 
 and circumstances of the case. It 
 is the province of courts to con- 
 strue the acts of legislative bodies, 
 and within that jurisdiction, in a 
 proper case, to apply and to en- 
 force their provisions. When the 
 law is positive and plain in its 
 terms and requirements, and if it 
 does not conflict with any consti- 
 tutional rights or immunities, then 
 that strict compliance must be en- 
 forced which a fair reading de- 
 mands, and construction may have 
 little or no work to perform. 
 
 " But, if limitations are affixed 
 to the law which control in its ap- 
 plication to subjects, it is for the 
 court to decide whether, under the 
 circumstances as disclosed, the 
 conditions for its application are 
 met by the case." 
 
MUNICIPAL REGULATION. 21/ 
 
 one condition to-day and to another and additional one to- 
 morrow, provided the power is exercised in good faith and 
 the condition imposed is appropriate as a reasonable regula- 
 tion and is not imposed arbitrarily or capriciously.''' The 
 power is usually exercised by the passage of an ordinance in 
 the usual way and without notice or hearing granted to the 
 railroad company. The direction to the railroad company 
 should be specific and point out what the municipality re- 
 quires to be done and when it should be done. Under an 
 ordinance requiring the company to cause the grade of its 
 roadbed and tracks to conform to the " then " and " there- 
 after " established grades of the streets over which its tracks 
 extended, and at all points where its road crosses any street 
 to grade the street upon which the track is laid for the full 
 width, the company is not bound to grade its roadbed to the 
 street until the city directs the grading to be done.^"" Where 
 a franchise is conferred which, as a condition, requires the 
 grantee to acquire the franchise of a former company con- 
 
 21. Baltimore v. Baltimore T. & good order and the public morals. 
 G. Co., i66 U. S. 673, 68s, 4i L. The legislature cannot, by any con- 
 Ed. 1160, 1164, citing St. Louis tract, divest itself of the power to 
 V. W. U. T. Co., 149 U. S. 465, 37 provide for these objects. They 
 L. Ed. 810; New Orleans Gas belong emphatically to that class 
 Light Co. V. Louisiana Light & of objects which demand the ap- 
 H. P. & Mfg. Co., 115 U. S. 650- plication of the maxim, Salus 
 672, 29 L. Ed. 516-524; N. Y. & populi suprema lex, and they are 
 N. E. R. Co. V. Bristol, 151 U. S. to be attained and provided for 
 556, 567, 38 L. Ed. 269, 273. What- by such appropriate means as the 
 ever differences of opinion m'ay ex- legislative discretion may devise, 
 ist as to the extent and boundar- That discretion can no more be 
 ies of the police power, and how- bargained away than the power 
 ever difficult it may be to render itself. Boston Beer Co. v. Massa- 
 a satisfactory definition of it, there chusetts, 97 U. S. (7 Otto) 25, 24 
 seems to be no doubt that it does L. Ed. 989, 992. 
 extend to the protection of the 22. Kitchell v. Manchester, etc., 
 lives, health, and property of the Co., 79 Mo. App. 340, 2 Mo. App. 
 citizens, and to the preservation of Rep. 457. 
 
2l8 STREET SURFACE RAILROADS. 
 
 taining regulations as to the manner of operating the cars, 
 and the later franchise does not refer to such old require- 
 ments or make the provisions of the old grant part of the 
 new one, the new franchise is not subject to the old con- 
 ditions and regulations.^^ An ordinance requiring street 
 railroad companies to furnish and maintain- at their own ex- 
 pense all necessary conduits and siphons for carrying surface 
 water across and under the streets on which their tracks are 
 laid, does not include the duty of keeping such siphons in a. 
 sanitary condition, if their unsanitary condition does not im- 
 pede the iiow of water through the culverts.^* Although the 
 common council of a municipality has general authority to 
 make regulations controlling the operation of street rail- 
 roads, the provision of the charter of a street railroad com- 
 pany or a general statute may provide for a permission or 
 consent to a particular construction from some other depart- 
 ment of the municipal government. In New Jersey such 
 company cannot rebuild or reconstruct its road in a city 
 street without obtaining consent of the board of public 
 works, which, by the charter granted to the company, is 
 given power to prescribe the manner in which corporations 
 or persons shall exercise any privilege granted in the use of 
 any street or in the digging up of any street and to prohibit 
 and prevent any such use or work at such times and seasons 
 
 23. Stafford v. Chippewa Val. El. the only reservation in the ordi- 
 R. Co. (Wis.), 85 N. W. 1036. nance by which the right to oper- 
 
 24. Denver v. Denver City Cable ate the road was granted is to pass 
 R. Co., 22 Colo. 56s, 45 Pac. any ordinances with reference to 
 439- the operation of the railroad neces- 
 
 The case cited also held, that the sary to the public health and safety 
 
 city could not, by virtue of its and reserving the police and legis- 
 
 police power, require a street rail- lative powers and functions with 
 
 road company to keep siphons in respect to the streets and avenues 
 
 the streets over which its tracks that may be used and occupied by 
 
 run, m a sanitary condition, where the railroad. 
 
MUNICIPAL REGULATION. 219 
 
 of the year as it may designate.^s a municipal corporation 
 must exercise the power conferred upon it in the manner 
 especially prescribed by statute. If no particular method for 
 the exercise of the power is specified, the city authorities 
 may act by resolution, or in any other appropriate manner, 
 and such action would be as effectual as if an ordinance for 
 the same purpose were enacted.^^ 
 
 § 3. Regulation as to servants, equipments, fares, etc. — A 
 mimicipal corporation, empowered by its charter to regulate 
 its streets and to prescribe the manner of their use by any 
 person or corporation, has exclusive power to determine, in 
 the first instance, how the space within the bounds of the 
 highway shall be appropriated to the various uses of the 
 highway.^^ And, within its police power, unless limited by 
 statute or contract with the company, it may determine and 
 direct, within reasonable bounds, as to the servants and 
 appliances to be employed in operating cars upon a street 
 surface railroad within the highway. It may enact that 
 electric railroad cars should not be run without a conductor.^* 
 
 25. Trenton v. Trenton Pass. Ry. hereinbefore mentioned, is to make 
 Co. (N. J. Ch.), 27 Atl. 483. the running of the street cars sub- 
 
 26. Lincoln St. Ry. Co. v. City ject to rules and regulations pre- 
 of Lincoln (Nebr.), 84 N. W. 802. scribed by the city council. This 
 
 27. Budd V. Camden H. R. Co. police power of the city seems to 
 (N. J. Ch.), 48 Atl. 1028. have been recognized by the peti- 
 
 28. State, Columbia El. St. Ry., tioner when it filed its petition with 
 etc., Co. V. Sloane (S. C. Sup. the city council asking permission 
 Ct.)', 6 Am. Electl. Cas. 57. In the to be allowed to make such 
 case cited the court said: " Not changes in its line as were neces- 
 only is there an absence of legis- sary to enable it to operate its cars 
 lative intent to prevent the author- by electricity, and with such peti- 
 ities of the city of Columbia from tion presented the draft of an or- 
 reserving its powers of police in dinance to accomplish that result, 
 regard to the street railways, but in which it was provided that the 
 the trend of the various legislative city council should have the power 
 enactments relative thereto, and 'and hereby reserves the right to 
 
220 STREET SURFACE RAILROADS. 
 
 But it cannot require a railroad company to take up the rails, 
 long used in the streets with municipal consent, and sub- 
 stitute others which the municipal authorities determine are 
 more suited to the convenience and safety of the traveling 
 public. It may however prohibit the use of a certain kind 
 of rail in all future construction, and provide for such future 
 construction, the kind of rails to be used, and the manner of 
 making the roadbed, etc., provided however that its require- 
 ments are not unnecessarily burdensome, and do not impair 
 vested rights or contract obligations, or unnecessarily inter- 
 fere with and obstruct public travel and the use therein of 
 the latest approved methods and appliances of passenger 
 carriers.^' It may be stated generally, that rates of fare upon 
 street surface railroads are regulated by statute in the several 
 States. It is generally provided that a rate not exceeding a 
 stated fee shall be charged for one continuous passage over 
 the lines of a street surface railroad company within a munic- 
 ipality, including all its branches, extensions, and leased lines, 
 
 regulate, by ordinance, the manner 29. Toronto v. Toronto St. Ry. 
 
 of operating such electric railway, Co., 15 Ont. App. 30; Brooklyn 
 
 and to alter and amend the or- Crosstown R. Co. v. Brooklyn, 
 
 dinances relating thereto by such 37 Hun (N. Y.), 14; Ganiard v. 
 
 other enactment as in their judg- Rochester City, etc., Co., 50 Hun 
 
 ment the public welfare may de- (N. Y.), 22; Lanline v. Houston, 
 
 mand.' The authorities are not in etc., Co., 14 Daly (N. Y.), 144; 
 
 harmony touching the abstract Bishop v. Union R. Co., 14 R. I. 
 
 question whether municipal au- 214; Trenton H. R. Co. v. Trenton, 
 
 thorities have the right to make a 53 N. J. L. (24 Vroom) 132, 11 
 
 regulation that the street cars shall L. R. A. 410, 32 Am. & Eng. 
 
 not be operated unless in charge Corp. Cas. 445, 20 Atl. 1076; El. 
 
 of a conductor." R. Co. v. Grand Rapids, 84 Mich. 
 
 No statute or ordinance other- 257, 47 N. W. 567; Easton, etc., 
 
 wise requiring a horse car in a city Ry. Co. v. Easton, 133 Pa. St. 505; 
 
 may be run without a conductor. Waterloo v. Waterloo St. Ry. Co., 
 
 Dunn V. Cass Ave., etc., R. Co., 71 Iowa, 193; Harrisburgh City 
 
 21 Mo. App. 188. Pass. Ry. Co. v. Harrisburgh, 7 
 
 Pa. Co. Ct. 587. 
 
MUNICIPAL REGULATION. 
 
 221 
 
 and including lines of other roads with which traffic arrange- 
 ments have been made. Although by its charter a railroad 
 corporation is given power to fix rates, such power is subject 
 to change unless clearly stipulated to the contrary. But 
 neither the legislature nor any commission acting under the 
 authority of the legislature can establish, arbitrarily and with- 
 out regard to justice and right, a tariff of rates for fares and 
 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. The 
 question of the reasonableness of the rate is always a judicial 
 one.^" It should be remembered however that the legislature 
 
 30. Chicago, M. & St. P. Co. v. 
 Minnesota, 134 U. S. 418, 33 L. Ed. 
 970; Minneapolis Eastern R. Co. 
 V. Minnesota, 134 U. S. 467, 469, 
 482, 33 L. Ed. 98s, 987. 991. 
 10 Sup. Ct. Rep. 473, 477; Grif- 
 fin V. Goldsboro Water Co., 122 
 N. C. 210, 30 S. E. 320, 41 L. 
 R. A. 242; Atty.-Gen. v. Old 
 Colony R., 160 Mass. 87, 35 N. 
 E. 256, 22 L. R. A. 118; State 
 V. Edwards, 86 Me. 106, 41 Am. 
 St. Rep. 531, 29 Atl. 948, 25 L. R. 
 A. 506; Wellman v. Chicago, etc., 
 Ry. Co., 83 Mich. 61 1 ; affd., 143 U. 
 S. 344, 36 L. Ed. 179, 12 Sup. Ct. 
 Rep. 402, 47 N. W. 494; R. R- 
 Comrs. V. Grocer Co., 53 Kan. 212, 
 35 Pac. 219; St. Louis, etc., Ry. 
 V. Gill, 156 U. S. 658, 39 L- Ed. 
 570, 15 Sup. Ct. Rep. 488; Coving- 
 ton, etc., Co. V. Sandford, 164 U. 
 S. 592, 41 L. Ed. 565, 17 Sup. Ct. 
 Rep. 204; Smyth v. Ames, 169 U. 
 S. 523, 42 L. Ed. 841, 18 Sup. Ct. 
 
 Rep. 425 (restraining enforcement 
 of Nebraska Act of 1893); Inter- 
 State Commerce Commission v. 
 Bahimore, etc., Ry., 43 Fed. 42 
 (refusing to enjoin sale of party- 
 rate tickets); Mercantile Trust 
 Co. V. Texas & Pacific Ry., 51 
 Fed. 533, 540, 542 (restraining en- 
 forcement of Texas Railroad Com- 
 mission Act of i8gi); Atlantic, etc., 
 R. V. United States, 76 Fed. 192 
 (holding government did not limit 
 its right to fix reasonable rates) ; 
 State V. Kansas Central R., 48 
 Kan. 506, 28 Pac. 211 (holding 
 commissions recommended for 
 railroad repaiis, etc., not conclu- 
 sive on court) ; State v. Sioux City, 
 etc., R., 46 Nebr. 693, 65 N. 
 W. 769, 31 L. R. A. 52 (hold- 
 ing statute arbitrarily fixing the 
 same price for long and short 
 haul between same points in- 
 valid); B. E. S. R. Co. V. B. S. 
 R. Co., Ill N. Y. 132, 19 N. E. 
 
222 
 
 STREET SURFACE RAILROADS. 
 
 has the power to fix the rates, and the extent of judicial inter- 
 ference is protection against unreasonable rates.^' The 
 legislature may delegate to the municipal authorities the 
 power, within reasonable limits, to fix the rates of fare and to 
 adopt and enforce ordinances on matters of special local im- 
 provement, although general statutes exist upon the same 
 subjects.3^ And when the power is so delegated the city 
 
 63. In the case last cited the court 
 said: "The same authority which 
 confers upon one body the power 
 of legislation, authorizes its suc- 
 cessors, in the exercise of their 
 duty, to change, alter and annul 
 existing laws when, in their judg- 
 ment, the public interest requires 
 it. In the performance of their 
 duty of legislating for the public 
 welfare, each successive body must, 
 from necessity, be left untram- 
 meled except by the restraints of 
 the fundamental law and when 
 called upon to act upon subjects 
 which concern the health, morals 
 or interests of the people, as af- 
 fected by a public use of property 
 for which compensation is exacted 
 by its owners, they are unlimited 
 by constitutional restraint." 
 
 Railroad corporations hold their 
 property and exercise their func- 
 tions for the public benefit, and 
 they are, therefore, subject to legis- 
 lative control. The legislature, 
 which has created them, may regu- 
 late the mode in which they shall 
 transact their business, the price 
 which they shall charge for the 
 transportation of freight and pas- 
 sengers, etc. * * * It may make 
 all such regulations as are ap- 
 propriate to protect the lives of 
 persons carried upon railroads or 
 
 passing upon highways crossed by 
 railroads. All this is within the 
 judgment of legislative power, al- 
 though the power to alter and 
 amend the charter of such corpora- 
 tion has not been reserved. * * * 
 Such legislation violates no con- 
 tract, takes away no property, and 
 interferes with no vested right. 
 People V. Boston & Albany R. Co., 
 70 N. Y. 569; Mclnerney v. Den- 
 ver, 17 Colo. 302, 37 Am. & Eng. 
 Corp. Cas. 424, 29 Pac. 516. 
 
 31. Chicago & G. T. R. Co. v. 
 Wellman, 143 U. S. 339, 36 L. Ed. 
 176; Stone V. Farmers' L. & T. 
 Co., 116 U. S. 307, 29 L. Ed. 636; 
 Railway Co. v. Ryan, 56 Ark. 248, 
 19 S. W. 839; Clyde v. Richmond, 
 etc., R. Co., 57 Fed. 439 (entertain- 
 ing bill for relief against action of 
 commissioners) ; Indianapolis v. 
 Navin, 151 Ind. 144, 47 N. E. 526, 
 41 L. R. A. 340, sustaining or- 
 dinance for three-cent fares. 
 
 32. Indianapolis v. Navin, 151 
 Ind. 144, 47 N. E. 526, 41 L. R. A. 
 340. Under the constitutional laws 
 of Louisiana, New Orleans is 
 clothed with full and exclusive 
 power to grant franchises for the 
 construction and operation of pas- 
 senger street railways within its 
 corporate limits, including the 
 right to regulate the rates of fare 
 
MUNICIPAL REGLTLATION. 
 
 223 
 
 cannot, by resolution or otherwise, abrogate its power with 
 reference to the grantee of any particular franchise." In New 
 York the matter is controlled by sections loi and 104 of the 
 Railroad Law.^* The New York Railroad Law cited confers 
 on a passenger who has taken passage on a leased road the 
 right to a continuous trip, for a single fare, not only along 
 the line of the leased road, but also along other lines which 
 
 to be exacted. Forman v. New 
 Orleans & C. R. Co., 40 La. Ann. 
 446, 4 So. 246. And see Baltimore 
 & Y. Tp. Rd. V. Boon, 45 Md. 
 344; Ellis V. Milwaukee City Ry. 
 Co., 67 Wis. 186, 30 N. W. 218. 
 
 33. Milhau V. Sharp, 17 Barb. 
 (N. Y.) 435. 
 
 34. Chap. 565 of 1890, § loi, as 
 amended by chap. 676 of 1892 and 
 chap. 688 of 1897, § i; and § 104, 
 as amended by chap. 676 of 1892. 
 See 3 Heydecker's Gen. Laws (2d 
 ed.), 3318, 3320. The provisions 
 are as follows: 
 
 " § loi. Hate of fare — No cor- 
 poration constructing and operat- 
 ing a railroad under the provisions 
 of this article, or of chapter two 
 hundred and fifty-two of the laws 
 of eighteen hundred and eighty- 
 four, shall charge any passenger 
 more than five cents for one con- 
 tinuous ride from any point on its 
 road, or on any road, line or branch 
 operated by it, or under its control, 
 to any other point thereof, or any 
 connecting branch thereof, within 
 the limits of any incorporated city 
 or village. Not more than one 
 fare shall be charged within the 
 limits of any such city or village, 
 for passage over the main line of 
 road and any branch or extension 
 thereof if the right to construct 
 
 such branch or extension shall 
 have been acquired under the 
 provisions of such chapter or of 
 this article; except that in any city 
 of the third class, or incorporated 
 village, it shall be lawful for such 
 corporation to charge and collect 
 as a maximum rate of fare for 
 each passenger, ten cents, where 
 such passenger is carried in a car 
 which overcomes an elevation of 
 at least four hundred and fifty feet 
 within a distance of one and a 
 half miles. This section shall not 
 apply to any part of any road con- 
 structed prior to May six, eighteen 
 hundred and eighty-four, and then 
 in operation, unless the corpora- 
 tion owning the same shall have 
 acquired the right to extend such 
 road, or to construct branches 
 thereof under such chapter, or shall 
 acquire such right under the pro- 
 visions of this article, in which 
 event its rate of fare shall not ex- 
 ceed its authorized rate prior to 
 such extension. The legislature ex- 
 pressly reserves the right to regu- 
 late and reduce the rate of fare on 
 any railroad constructed and oper- 
 ated wholly or in part under such 
 chapter or under the provisions of 
 this article." 
 
 For § 104 of the statute see note 
 S to § 9 ante. 
 
224 STREET SURFACE RAILROADS. 
 
 were under control of, or operated by the lessee at the time 
 the lease was executed; but such right does not extend to 
 roads subsequently built or acquired by the lessee.^^ Neither 
 of the sections cited have reference to a steam railroad con- 
 structed prior to the passage of the Act of 1884, although 
 such steam railroad is converted into a trolley road and its 
 tracks joined to those of a street surface road and all are 
 within the limits of the same municipality and operated as 
 one continuous road. A full, separate fare may be charged 
 on each branch of the road for a continuous trip over both 
 branches.^* The word " fare " as used in section loi of the 
 New York Railroad Law cited below, does not indicate that 
 the carriage of passengers alone is within the contemplation 
 of the act.37 A common carrier operating a street railroad 
 is bound by a representation made by one of its conductors 
 to a passenger that its car will carry him between two points 
 for a fare named.^^ A franchise to a street railroad company 
 by a township, providing for the sale of trip tickets on cars of 
 the company at a reduced rate between a village in the town- 
 ship and a city without the township, requires such tickets 
 • to be sold on cars at any point on the line, and does not limit 
 such sale to the line within the township granting the fran- 
 
 35. Mendoza v. Met. St. R. Co., Brooklyn Heights R. Co., 28 Misc. 
 51 App. Div. (N. Y.) 430, 64 N. Rep. (N. Y.) 387, 59 N. Y. Supp. 
 Y. Supp. (98 St. Rep.) 745; Mc- (93 St. Rep.) 664; McNulta v. 
 Nulty V. Brooklyn Heights R. Co., Brooklyn Heights R; Co., 36 Misc. 
 31 Misc. Rep. (N. Y.) 674, 66 N. Rep. (N. Y.) 403. 
 
 Y. Supp. (100 St. Rep.) 57. 37. De Graw v. Long Island El. 
 
 36. Barnett v. Brooklyn Heights R. Co., 43 App. Div. (N. Y.) 
 R. Co., 53 App. Div. (N. Y.) 432, 502, 60 N. Y. Supp. (94 St. Rep.) 
 6s N. Y. Supp. (99 St. Rep.) 1068. 163. 
 
 And see Brooklyn Elev. R. Co. v. 38. Wright v. Glens Falls, etc., 
 
 Brooklyn, etc., R. Co., 23 App. St. R. Co., 24 App. Div. (N. Y.) 
 
 Div. (N. Y.) 29, 48 N. Y. Supp. 617, 48 N. Y. Supp. (82 St. Rep.) 
 
 (82 St. Rep.) 66s; Roosa v. 1026. 
 
MUNICIPAL REGULATION. 
 
 225 
 
 chise.39 An individual cannot maintain an action to restrain 
 a street railroad company from charging fare at a rate in 
 excess of that permitted by law; but the remedy is by a pro- 
 ceeding with the attorney-general to vacate its charter.'*"' 
 The power to make a regulation controlling the operation 
 of a street railroad includes the power to enforce it by fine,*"^ 
 and by imprisonment.''^ 
 
 § 4. Regulations as to care and manner of running cars. — 
 
 Municipal authorities have the right and duty, by legislation, 
 to regulate the rate of speed for the operation of street cars 
 upon the streets within the corporate limits; and the right 
 and duty exists by virtue of the police power which the au- 
 thorities have and should exercise for the protection of 
 individuals and their property when legally using the streets. 
 An ordinance hmiting the speed of street cars must be 
 
 39. Rice V. Detroit, Y. & A. R. 
 Ry. (Mich.), 81 N. W. 927, 48 L. 
 R. A. 84. In the case cited it was 
 held that, the franchise requiring 
 the sale of five tickets for fifty 
 cents, where the tickets are sold 
 in two parts, one of which is good 
 to a main point on the line and the 
 other part good for the remainder 
 of the trip, the railroad company 
 will not be heard to say in an action 
 for damages for refusal to sell five 
 tickets to one who had paid his 
 fare on the first part of the line 
 with a stub, intending to pay for 
 the remainder of the trip with a 
 stub from the new tickets, that the 
 franchise called only for the accept- 
 ance of a through ticket for the 
 payment of fare, and hence plaintiff 
 cannot recover for defendant's 
 failure to furnish a ticket in two 
 
 15 
 
 parts not called for by the fran- 
 chise. 
 
 40. McNulty V. Brooklyn Heights 
 R. Co., 31 Misc. Rep. (N. Y.) 674, 
 66 N. Y. Supp. (100 St. Rep.) 
 
 57- 
 
 41. Detroit v. Fort Wayne & B. 
 I. R. Co., 95 Mich. 4S6, 20 L. R. 
 A. 79, 54 N. W. 9S8. 
 
 42. Ex parte Greene, 94 Cal. 387, 
 29 Pac. 783; Eureka Springs v. 
 O'Neil, s6 Ark. 350, 19 S. W. 969. 
 A city ordinance which does not 
 contain any penalty for its viola- 
 tion, as required by the city char- 
 ter, is nugatory and cannot be 
 amended by requiring a party to. 
 deposit a sum of money as security 
 that he will not do an act pro- 
 hibited thereby. Ex parte O'Keefe, 
 46 St. Rep. (N. Y.) SS7, 19 N. Y. 
 Supp. 676. 
 
226 
 
 STREET SURFACE RAILROADS. 
 
 reasonable and certain, and although passed before electric 
 cars were in vogue, if it generally limit the speed at which 
 street cars may be drawn in the streets of the city, to, say, six 
 miles an hour, it will apply to electric cars when they are 
 used upon the streets.'*^ An ordinance may be enacted com- 
 
 43. Lewis V. Cincinnati St. Ry. 
 Co., 10 Ohio S. & C. P. Dec. 53; 
 Martineau v. Rochester Ry. Co., 
 81 Hun (N. Y.) 263, 62 St. Rep. 
 (N. Y.) 722, 30 N. Y. Supp. 778; 
 State V. City of Cape May et al., 
 6 Am. Electl. Cas. 42, 36 L. R. A. 
 656, 59 N. J. L. (30 Vroom) 393, 
 9 Am. & Eng. R. Cas. (N. S.) 507, 
 36 Atl. 679; Railroad Co. v. City 
 of Cape May et al., 6 Am. Electl. 
 Cas. 45. An ordinance of the city 
 of New York, passed in 1890, re- 
 quired a street surface railroad 
 company to run a passenger car 
 each way every twenty minutes of 
 every day between midnight and 
 6 o'clock in the morning. The 
 ordinance was continued by sec- 
 tions 595 and 596 of the Revised 
 Ordinances, approved March 30, 
 1897. Held, a consolidated street 
 surface railroad company, incor- 
 porated in 1892, is subject to the 
 penalty imposed by said sections 
 for a failure or neglect in this re- 
 spect. A city ordinance, impos- 
 ing a duty on railroad companies 
 " now " running cars in the streets, 
 subsequently re-enacted in the 
 same language, is continuous and 
 the duty in question is imposed 
 ■upon a street railroad corporation 
 incorporated between the time of 
 the enactment of the original ordi- 
 nance and its re-enactment. City 
 of New York v. Union R. Co., 
 21 Misc. Rep. (N. Y.) 451, 64 St. 
 
 Rep. (N. Y.) 483. In the case 
 cited, it was also held that, under 
 an ordinance requiring cars to be 
 run over the entire tracks of the 
 road at intervals of twenty minutes, 
 the company could not escape lia- 
 bility by proof that the failure or 
 neglect to do so was upon only a 
 portion of its line. 
 
 But where an ordinance fixes 
 eight miles an hour as the maxi- 
 mum speed for street cars, and also 
 requires street railroad companies 
 to operate their cars according to 
 the provisions of their charter, a 
 company whose franchise provides 
 that its cars may be run at a 
 speed greater than eight miles an 
 hour is entitled to so run them, 
 since a franchise must be con- 
 sidered a part of the charter. 
 Ruschenberg v. So. El. R. Co. 
 (Mo.), 61 S. W. 626. The ordi- 
 nance of the city of New York, re- 
 quiring all railroads operating 
 lines of cars in the streets to run 
 cars during certain hours at inter- 
 vals of not less than twenty min- 
 utes, is valid and binding upon the 
 defendant by force of the terms of 
 its charter. Mayor v. N. Y. & H. 
 R. Co., 10 Misc. Rep. (N. Y.) 417, 
 63 St. Rep. (N. Y.) 530; sub nom. 
 City of New York v. N. Y. & H. 
 R. Co., 31 N. Y. Supp. 147. 
 
 The charter of a street railroad 
 compelled it to run its cars "as 
 often as the convenience of pas- 
 
MUNICIPAL REGULATION. 
 
 227 
 
 pelling passenger cars operated by trolley or other power to 
 come to a full stop before crossing intersecting streets; and 
 such an ordinance, if enacted in the manner prescribed by 
 the charter of the city, is legislative in its character and will 
 not be set aside as unreasonable in its purpose or effect.'*'' A 
 street railroad company is not given the right to run its cars 
 at any desired rate of speed, by a charter giving it the para- 
 mount right of way upon city streets, but must regulate the 
 speed so that the cars may be quickly stopped should it be re- 
 quired to avoid an accident.''^ An ordinance granting a fran- 
 chise may provide that motormen and conductors shall keep 
 a vigilant watch for persons on or moving toward its tracks, 
 and on the first appearance of danger to such person that the 
 car shall be stopped in the shortest time and space possible. 
 But the acceptance of such a franchise is not shown by an 
 
 sengers may require and shall be 
 subject to such reasonable rules 
 and regulations in respect thereto 
 as the common council of the city 
 of New York may from time to 
 time by ordinance prescribe;" it 
 was held that, while the reason- 
 ableness of the ordinance was a 
 question of law, the defendant 
 might show that the convenience 
 of passengers did not require that 
 cars should be run during certain 
 hours specified by the ordinance, 
 and that the fact that the evidence 
 related to a time subsequent to the 
 date when the ordinance took ef- 
 fect was not a ground of objec- 
 tion. Mayor v. D. D., E. B. & 
 B. R. Co., 133 N. Y. 104, 30 N. 
 E. 563, 44 St. Rep. (N. Y.) 94. 
 revg. 39 id. 105, 15 N. Y. Supp. 
 297. Such an ordinance is valid 
 as against a company, the char- 
 
 ter of which provides that the 
 line is to be constructed only with 
 the consent of the municipal au- 
 thorities, who are thereby author- 
 ized to regulate the time and man- 
 ner of using the same. New 
 York V. N. Y. & H. R. Co., 10 
 Misc. Rep. (N. Y.) 417, 31 N. Y. 
 Supp. 147, 63 St. Rep. (N. Y.) 
 530. 
 
 44. Railroad Co. v. City of Cape 
 May, 6 Am. Electl. Cas. 45. An 
 ordinance showing the rate of 
 speed cars are allowed to run is 
 competent evidence in an action 
 for negligence. Hall v. Ogden 
 City Ry. Co. (Utah), 6 Am. Electl. 
 Cas. 598. And see Donnaher v. 
 State (Miss.), 8 Smedes & M. 649; 
 Trenton H. R. Co. v. Trenton, 53 
 N. J. L. 132, II L. R. A. 410. 
 
 45. Gosnell v. Toronto R. Co., 
 21 Ont. App. 553. 
 
228 STREET SURFACE RAILROADS. 
 
 agreement of the company to hold the city harmless from 
 all damages that may accrue to it by reason of its failure to 
 comply with the ordinances, as the city cannot be held in 
 damages for any failure of the company to keep such an 
 ordinance/* The municipal authorities may, by way of regu- 
 lation, after a franchise, silent upon the subject, is accepted 
 and by virtue of their police power, require that motormen 
 and conductors shall keep vigilant watch for persons on or 
 moving toward its tracks, and on the first appearance of 
 danger to such person that the car shall be stopped in the 
 shortest time and space possible, unless such an ordinance 
 were too indefinite to be reasonable. The reasonableness of 
 the rule of a street railroad corporation that passengers shall 
 not stand on the rear platform, like a regulation by a munic- 
 ipality as to the operation of street cars, is to be judicially 
 determined by the court.*^ A street railroad company cannot 
 stop its cars for any length of time to bring the price or con- 
 ditions of labor necessary to run the same down to the con- 
 ditions offered by it. If the necessary labor to perform its 
 public obligations to run its cars and to carry passengers 
 cannot be obtained at the price or on the conditions it offers, 
 it must offer such prices and conditions as will obtain it 
 without regard to the effect upon its dividends.'** A horse 
 railroad company chartered by the legislature may, while 
 legally operating its road, restrain a rival coach company, 
 
 46. Murphy v. Lindell R. Co., 47. Montgomery v. Buffalo R. 
 
 153 Mo. 252, S4 S. W. 442. And Co., 24 App. Div. (N. Y.) 454, 48 
 
 see Fath v. Tower Grove, etc., Ry. N. Y. Supp. (82 St. Rep.) 849. 
 
 Co., IDS Mo. S37, 13 L. R. A. 74, 48. Re Loader v. The Brooklyn 
 
 16 S. W. 913; Liddy v. St. Louis Heights R. Co., 14 Misc. Rep. (N. 
 
 R. Co.. 40 Mo. 506. Such an ordi- Y.) 208, 35 N. Y. Supp. 996, 70 
 
 nance is applicable to cable rail- St. Rep. (N. Y.) 571. 
 ways. Lamb v. St. Louis Cable 
 & West. Ry. Co., 33 Mo. App. 489. 
 
MUNICIPAL REGULATION. 229 
 
 organized under the New Jersey General Corporation Act 
 and licensed by the city where the tracks are laid, from 
 regularly using its tracks, with coaches adapted thereto, in 
 competition with it in its business of transporting passengers 
 and goods for hire, and from obstructing it in the use of such 
 tracks by impeding such use by stopping thereon to take on 
 and let down passengers.-*' When a statute is obviously in- 
 tended to provide for the safety and health of a community 
 and of travelers and an ordinance under it is reasonable and 
 in compliance with its purpose, both the statute and the ordi- 
 nance are lawful and must be sustained. s° Accordingly, a 
 municipal regulation may prohibit smoking in street cars;^' 
 the use of salt or sand upon tracks ;5^ it may compel the re- 
 moval of ice and snow; it may provide that cars driven in 
 the same direction should not approach each other within a 
 distance of 300 feet, except in case of accident and at 
 stations;" it may provide as a proper police regulation that 
 passenger cars be licensed on payment of a stipulated fee;'* 
 and a statute directing companies to furnish tickets and 
 checks to all passengers who apply for them, does not 
 contravene any charter right^s 
 
 49. Camden H. R. Co. v. Citi- La. Ann. 483, 7 So. 621. See also 
 zens' Coach Co., 31 N. J. Eq. 525. Boston Beer Co. v. Massachusetts. 
 
 50. City of Rochester v. West, 97 U. S. 25, 24 L. Ed. 989, 992; 
 164 N. Y. 510, 514; Village of Fertilizer Co. v. Hyde Park, 97 U. 
 Carthage v. Frederick, 122 id. 268, S. 659. 
 
 25 N. E. 480; People ex rel. O. H. 52. D. D., E. B. & B. R. Co. 
 
 C. Assn. V. Pratt, 129 N. Y. 68, 29 v. Mayor, 47 Hun (N. Y.), 221. 
 
 N. E. 7; Mayor, etc. v. D. D., E. S3- Bishop v. Union R. Co., 13 
 
 B. & B. R. Co., 133 N. Y. 104, R. I- 314- 
 
 30 N. E. 563; City of Rochester v. 54- Frankford & Philadelphia 
 
 Simpson, 134 N. Y. 414, 31 N. E. Pass. Ry. Co. v. Philadelphia, 58 
 
 871; People V. Havnor, 149 N. Y. Pa. St. 119. 
 
 19s, 204, 43 N. E. S4I- SS- California 1882 Rev. Stat., 
 
 51. Louisiana v. Heydenhain, 42 i S02. 
 
230 STREET SURFACE RAILROADS. 
 
 § 5. Begulation as to care of streets; removing dirt, snow, and 
 ice, etc. — The duty is imposed upon each municipality to 
 remove obstructions from the streets and to keep the streets 
 in a condition for travel ; and in the performance of this duty 
 it has the right to regulate the use made by street railroad 
 companies of snow-plows which pile up the snow upon both 
 sides of the tracks and prevent the use, either by the abutting 
 owners or by the general public, of any other part of the 
 street for the purpose of passage or access to their own 
 premises. A street surface railroad company has no right to 
 control or use or in any manner interfere with any part of the 
 public streets, except that actually included within its road- 
 way; and if there be a necessity of removing snow from the 
 tracks, the obhgation is imposed upon the company, not only 
 to remove it from its tracks, but not to put it upon other 
 parts of the streets where it becomes an obstruction to the 
 use of the street by other passers-by.'* In the case of an 
 extraordinary storm the company must make extraordinary 
 efforts. 57 In removing snow and ice from its tracks it must 
 
 56. Broadway Ry. Co. v. Mayor, street railroad company is not 
 49 Hun (N. Y.), 126, 131; Oving- chargeable with negligence in heap- 
 ton V. Lowell & S. St. R. Co., 163 ing up- snow along the sides of its 
 Mass. 440, 40 N. E. 767; Markowitz track after a heavy snowstorm, 
 V. Dry Dock, E. B. & B. R. Co. rendering it liable to one injured 
 (C. P.), 12 Misc. Rep. (N. Y.) 412, by the overturning of a sleigh, in 
 67 St. Rep. (N. Y.) 572, 33 N. Y. the absence of evidence that such 
 Supp. 702. While a railroad com- heaping up was unnecessary; or 
 pany has the right to remove the that the work could have been done 
 snow from its tracks, it cannot law- in some other manner, or that the 
 fully cause an obstruction which heaps were not removed within a 
 would interfere with the safe pass- reasonable time. Ovington v. Low- 
 ing and repassing of persons trav- ell & S. St. R. Co., 163 Mass. 440, 
 eling upon the street. Dixon v. 40 N. E. 767; Union Ry. Co. v. 
 Brooklyn City & Newtown R. Co., Mayor, 11 Allen (Mass.), 287; 
 100 N. Y. 170, 176. Newport News & O. P. Ry., etc., 
 
 57. Bowen v. Detroit City R. Co., Co. v. Bradford (Va.), 37 S. E. 807. 
 54 Mich. 496, 52 Am. Rep. 822. A A street railroad company which 
 
CARE OF STREETS. 27,1 
 
 be careful not to interfere with the natural flow of water from 
 the street, either by obstructing the gutter or otherwise ; but 
 in the absence of municipal regulation requiring it, it is not 
 obliged to haul the snow away, and is only Hablein case it 
 has failed to exercise ordinary care.^* Where a street car 
 company has obstructed that portion of the streets outside of 
 its tracks by snow pushed from that part of the street upon 
 which its tracks are laid, and has then obstructed one of its 
 tracks with a repair-wagon, so that there remains only the 
 other track upon which a citizen may drive, a driver injured 
 by collision with the car in attempting to pass such repair- 
 wagon with his team, can recover against the company.^' 
 Under a statute providing that " any person or corporation, 
 except municipal corporations, through whose negligence or 
 carelessness any obstruction or want of repair in a highway 
 is caused, shall be liable to any person injured by reason 
 thereof," such a company is liable for damages caused by a 
 dangerous bank of snow left on the side of its tracks after 
 cleaning them, where it had a reasonable time within which 
 to remove it.^° Under exceptional circumstances, courts of 
 equity have interfered and prevented, by injunction, at the 
 instance of the abutting owner, such accumulations of snow 
 and ice between the railroad tracks and abutting property,, 
 access to which was by that means materially impaired, after 
 
 allows a snowbank erected by it to Detroit City R. Co., 58 Mich, 
 
 remain an unreasonable length of 231. 
 
 time is liable as for the maintenance 59- West Chicago St. R. Co. v. 
 
 of a public nuisance, although the O'Conner, 85 111. App. 278. 
 
 duty to remove the snow also de- 60. Smith v. Nashua St. Ry. . (N. 
 
 volved upon others. Markowitz v. H.), 44 Atl. 133; McDonald v. 
 
 Dry Dock, etc., Co., 12 Misc. Rep Toledo Consolidated St. R. Co. (C. 
 
 (N. Y.) 412, 67 St. Rep. (N. Y.) C. App. 6th C), 43 U. S. App. 79, 
 
 572, 33 N. Y. Supp. 702. 74 Fed. 104, 36 Ohio L. J. 49, 29 
 
 58. Short V. Baltimore City Pass. Chic. Leg. N. 35, i Ohio Dec. Fed. 
 
 Ry. Co., 50 Md. 73; Wallace v. 294. 
 
232 STREET SURFACE RAILROADS. 
 
 a reasonable time to remove the same had elapsed.*' Where 
 a municipality, by its charter, is given power " to make, 
 ordain and establish such by-laws, ordinances, rules and 
 regulations as shall appear to them requisite and necessary 
 for the security, welfare and convenience of said city and its 
 inhabitants, and for preserving health, business and govern- 
 ment within the limits of the same " — authority is conferred 
 to require street railroad companies to prevent dust on their 
 tracks by watering them.*^ 
 
 § 6. Reports; license fees and percentages to municipality. — 
 It is reasonable for a municipality to require reports at cer- 
 tain stated periods from street railroad companies operating 
 within its limits as to the number and kinds of cars in use, 
 number of passengers carried, and as to other matters, to 
 enable the common council to regulate the traffic, so as to 
 furnish a safer and better service to the public; and also to 
 see that the payments to be made to the municipality by the 
 company under the provisions of its charter are all that 
 should be made. A requirement of quarterly reports of the 
 passengers carried is not unreasonable, in restraint of trade, 
 
 61. Prime v. Twenty-second St. company's track, for the purpose 
 R. Co. (N. Y.), I Abb. N. C. 63; of filling the tank with water to be 
 Christopher & Tenth St. R. Co. used in sprinkling the company's 
 V. Mayor, id. 79. But see Johns- tracks, it should give such warn- 
 ton V. Christopher & Tenth St. R. ing of the obstruction as would 
 Co., id. 75. be reasonably required to protect 
 
 62. City & Sub. R. Co. v. Sa- any traveler from injury occasioned 
 vannah, 77 Ga. 731, 4 Am. St. Rep. thereby, whether such warning 
 106; Chester v. Chester T. Co. (C. was in fact given is a question for 
 P.), S Pa. Dist. 601, 6 Del. the jury. North Jersey St. Ry. 
 Co. Rep. 397. Where a street rail- Co. v. Morhart, 64 N. J. L. 236, 
 way company lays a hose across 45 Atl. 812. See Smith v. Rail- 
 a public highway from a hydrant way, 69 N. H. 504. 
 
 at one side to a tank cart on the 
 
reports; licenses. 233 
 
 or in conflict with the Federal Constitution, where the statute 
 authorized the municipaHty to adopt such municipal reg-ula- 
 tions concerning street railroads within its limits as the public 
 interest and convenience might require.*^ And the city- 
 officials clothed with power to make such an ordinance can- 
 not agree to receive a less amount from the company than is 
 really due to the city as a consideration for the company's 
 permission to permit the city officials to examine, from time 
 to time, the books of the company to ascertain if the reports 
 made by the company, according to municipal regulation 
 therefor, are correct and true, if the statute under which the 
 company is operating either expressly or impliedly authorizes 
 such examination.*'' Generally, where license fees for the 
 operation of street cars are imposed there is express legisla- 
 tive authority for the imposition. General authority to make 
 such reasonable rules and regulations in the premises as the 
 interest and convenience of the public may require would 
 not authorize such a tax. It is not merely a police regula- 
 tion. But power to impose conditions on granting a street 
 railway franchise clothes the municipality with authority to 
 impose license fees or to exact a percentage of earnings as 
 a condition of the, franchise.*^ The charter of New York 
 city authorizes the board of aldermen to fix the annual 
 license fee, not exceeding the sum of $20, for each street or 
 horse car daily operated or used in that portion of the city 
 heretofore known as the city of Brooklyn, and gives general 
 power to the board of aldermen to adopt such regulations 
 
 63. St. Louis V. St. Louis R. 65. Mayor v. E. A. R. Co., 118 
 €0., 89 Mo. 44, I S. W. 305. N. Y. 389, 397, 23 N. E. sso; New 
 
 64. Cincinnati St. Ry. Co. v. Orleans v. New Orleans, etc., R. 
 Cincinnati, 8 Ohio N. P. 80, 11 Co., 40 La. Ann. 587; Johnson v. 
 'Ohio S. & C. P. Dec. 15. Philadelphia, 60 Pa. St. 445; State 
 
 V. Herod, 29 Iowa, 123. 
 
234 
 
 STREET SURFACE RAILROADS. 
 
 as to the matter of license fees for other parts of the city of 
 New York as it deems best.** The city of Chicago may re- 
 
 66. Laws of 1901, vol. 3, §§ 44- 
 50. Section 49, subdivision 17, be- 
 sides providing for the annual 
 license fee, as stated in the text, 
 for the city of Brooklyn, provides 
 that "every railroad company oper- 
 ating or using such cars shall, on 
 or before the first day of June in 
 each year, certify to the city clerk 
 the average number of cars daily 
 operated and used by said com- 
 pany, which certificate shall be 
 verified by the oath of one of the 
 managing officers of said company, 
 and every such railroad company 
 shall, on or before the first day 
 of July in each year, pay to the 
 chamberlain of the city of New 
 York the license fee so established 
 for the average number of cars 
 so operated and used by said 
 company. The said license fees 
 shall be taken in full satisfaction 
 for the use of the streets or ave- 
 nues, but the same shall not re- 
 lease said company from any obli- 
 gations required by law to keep 
 such streets and avenues, or any 
 part thereof, in repair, which said 
 obligations, and the contracts, 
 laws or ordinances, creating and 
 enforcing the same, are hereby 
 continued in full force and oper- 
 ation. But nothing in this subdi- 
 vision contained shall be con- 
 strued to release any railroad com- 
 pany in the city of New York as 
 constituted by this act, from any 
 duty or obligation existing at the 
 time this act takes effect by virtue 
 of any law, ordinance or contract. 
 Ordinances in relation to the mat- 
 ters mentioned in this section 
 
 may provide for the enforcement 
 thereof in the manner specified in 
 section 44 of this act as amended." 
 
 Sections 44 and 45 are as fol- 
 lows: 
 
 " § 44. Board of aldermen; 
 enumeration of po'wers not re- 
 strictive; g'eneral power No' 
 
 enumeration of powers in this act 
 shall be held to limit the legis- 
 lative power of the board of alder- 
 men, which, in addition to all enu- 
 merated powers, may exercise all 
 of the powers vested in the city 
 of New York by this act, or other- 
 wise, by proper ordinances, rules, 
 regulations and by-laws not in- 
 consistent with the provisions of 
 this act, or with the constitution 
 or laws of the United States or 
 of this state; and, subject to such 
 limitations, may from time to time 
 ordain and pass all such ordi- 
 nances, rules, regulations and by- 
 laws, applicable throughout the 
 whole of said city or applicable 
 only to specified portions thereof, 
 as to the said board of aldermen 
 may seem meet for the good rule 
 and government of the city, and 
 to carry out the purposes and pro- 
 visions of this act or of other 
 laws relating to the said city, and 
 may provide for the enforcement 
 of the same by such fines, penal- 
 ties, forfeitures and imprisonment 
 as may by ordinance or by law be 
 prescribed." 
 
 " § 45. Franchises for street- 
 railways — The board of alder- 
 men is authorized to grant from 
 time to time to any corporation 
 thereunto duly authorized the- 
 
reports; licenses. 
 
 23S 
 
 quire the payment of license fees as a condition of granting- 
 a franchise to a street railroad company, and such company. 
 
 franchise or right to construct and 
 operate railways in, upon, over, 
 under and 'along streets, avenues, 
 waters, rivers, public places, park- 
 ways or highways of the city, but 
 no such grant shall be made ex- 
 cept upon the limitations and con- 
 ditions of this act elsewhere pro- 
 vided in respect of the grant by 
 the board of aldermen of fran- 
 chises and rights in or under the 
 streets, avenues, waters, rivers, 
 public places, parkways and high- 
 ways of the city. The board of 
 aldermen may pass appropriate 
 ordinances not inconsistent with 
 law or with this act, or with the 
 vested rights of existing com- 
 panies or corporations, to enforce 
 the provisions of this section and 
 to carry out its purposes. Nothing 
 in this act contained shall repeal 
 or affect in any manner the pro- 
 visions of the rapid transit acts 
 applicable to the corporation here- 
 tofore known as the mayor, alder- 
 men and commonalty of the city 
 of New York, or any municipality 
 united therewith or territory em- 
 braced therein, or to repeal or 
 afifect the existing general laws 
 of the state in respect to street 
 surface railroads. The consent or 
 approval of the board of aldermen 
 to or for the issue of corporate 
 stock of the city of New York, as 
 provided by section one hundred 
 and sixty-nine shall not be neces- 
 sary to authorize the comptroller 
 to issue such stock for the pur- 
 poses prescribed in chapter four 
 of the laws of eighteen hundred 
 and ninety-one as amended. The 
 
 board of estimate and apportion- 
 ment and the comptroller of the 
 city of New York shall, anything 
 herein contained to the contrary 
 notwithstanding, be subject to all 
 the duties and obligations pre- 
 scribed in said chapter four of the 
 laws of eighteen hundred and 
 ninety-one as amended for the 
 board of estimate and apportion- 
 ment and comptroller therein men- 
 tioned. Upon the execution of any 
 contract made pursuant to chapter 
 four of the laws of eighteen hun- 
 dred and ninety-one as amended, 
 the board of rapid transit railroad 
 commissioners may, in its discre- 
 tion, make request upon the board 
 of estimate and apportionment for 
 the authorization of such corporate 
 stock, either for such amounts 
 from time to time as they shall 
 deem the progress of the work tO' 
 require, or for the full amount suf- 
 ficient to pay the entire estimated 
 expense of executing such con- 
 tract. In case they shall make 
 requisition for the entire amount, 
 the comptroller shall endorse on 
 the contract his certificate that 
 funds are available for the entire 
 contract whenever such stock shall 
 have been authorized to be issued 
 by said board of estimate and ap- 
 portionment; and in such case such 
 stock may be issued from time to 
 time thereafter in such amounts 
 as may be necessary to meet the 
 requirements of such contract. 
 The certificate of the comptroller, 
 mentioned in section one hundred 
 and forty-nine of this act, shall not 
 be necessary to make such con- 
 
236 
 
 STREET SURFACE RAILROADS. 
 
 on accepting the franchise, becomes Uable to pay such fee.*' 
 It should be remembered however that a city can impose no 
 terms on the construction of a street railroad upon its streets 
 where the city's consent is not made necessary for the con- 
 struction of such road.** Usually there is express legislative 
 authority for the larger municipalities to exact a certain 
 percentage of the gross earnings of the street railroad com- 
 pany as a condition for the permission to operate within the 
 city limits.*' 
 
 tract binding on the city of New 
 York." 
 
 67. Burn V. Chicago, etc., Co., 
 63 111. App. 438, I Chic. L. J. W. 
 
 533- 
 
 68. Philadelphia v. Empire Pass. 
 R. Co., 177 Pa. St. 382, 3S Atl. 
 721. 
 
 6g. The New York statute is as 
 follows: 
 
 " § 95. Percentage of gross re- 
 ceipts to be paid in cities or vil- 
 lages; report of officers Every 
 
 corporation building or operating 
 a railroad, or a branch or exten- 
 sion thereof, under the provisions 
 of this article, or of chapter two 
 hundred and fifty-two of the laws 
 of eighteen hundred and eighty- 
 four, within any city of the state 
 having a population of one million 
 two hundred thousand or more, 
 shall, for and during the first five 
 years after the commencement of 
 the operation of any portions of 
 its railroad annually, on Novem- 
 ber first, pay into the treasury of 
 the city in which its road is lo- 
 cated, to the credit of the sinking 
 fund thereof, three per cent, of its 
 gross receipts for and during the 
 year ending September thirtieth 
 next preceding; and after the ex- 
 
 piration of such five years, make 
 a like annual payment into the 
 treasury of the city to the credit 
 of the same fund, of five per cent, 
 of its gross receipts. If a street 
 surface railroad corporation exist- 
 ing and operating any such rail- 
 road in any such city on May 
 six, eighteen hundred and eighty- 
 four, shall have thereafter ex- 
 tended its tracks or constructed 
 branches therefrom, and shall 
 operate such branches or exten- 
 sions under the provisions of chap- 
 ter two hundred and fifty-two of 
 the laws of eighteen hundred and 
 eighty-four, or of this article, such 
 corporation shall pay such per- 
 centages only upon such portion 
 of its gross receipts as shall bear 
 the same proportion to its whole 
 gross receipts as the length of such 
 extension or branches shall bear 
 to the entire length of its line. 
 In any other incorporated city or 
 village the local authorities shall 
 have the right to require, as a con- 
 dition to their consent to the con- 
 struction, operation or extension 
 of a railroad under the provisions 
 of this article, the payment an- 
 nually of such percentage of gross 
 receipts, not exceeding three per 
 
LOCATION OF TRACK. 
 
 23r 
 
 § 7. location of track. — The power and duty to determine 
 as to the location of street surface railroad tracks upon city 
 streets usually devolves upon the municipal authorities. 
 This power is not affected by a constitutional provision such 
 as is contained in the New York Constitution inhibiting the 
 granting of exclusive franchises or special privileges or im- 
 munities. Although such constitutional provisions are limi- 
 tations upon legislative power, they do not limit the authority 
 of a municipal corporation to designate streets in which the 
 surface railroads may be constructed, and to impose the con- 
 
 cent., into the treasury of the city 
 or village as they may deem 
 proper. In case of extension the 
 amount to be paid shall be ascer- 
 tained in the manner heretofore 
 provided. The corporation failing 
 to pay such percentage of its gross 
 earnings shall, after November 
 first, pay in addition thereto five 
 per cent, a month, on such per- 
 centage until paid. The president 
 and treasurer of any corporation 
 required by the provisions of this 
 article to make a payment an- 
 nually upon its gross receipts 
 shall, on or before November first 
 in each year make a verified re- 
 port to the comptroller or chief 
 fiscal officer of the city of the gross 
 amount of its receipts for the year 
 ending September thirtieth, next 
 preceding, and the books of such 
 corporation shall be open to in- 
 spection and examination by such 
 comptroller or officer, or his duly 
 appointed agent, for the purpose 
 of ascertaining the correctness of 
 its report as to its gross receipts. 
 The corporate rights, privileges 
 and franchises acquired under this 
 
 article or such chapter by any cor- 
 poration, which shall fail to com- 
 ply with all the provisions of this 
 section, shall be forfeited to the 
 people of the state, and upon 
 judgment of forfeiture rendered in 
 an action brought in the name of 
 the people by the attorney-gen- 
 eral, shall cease and determine." 
 (Railroad Law, as amended by 
 chap. 676 of 1892, 3 Heydecker's 
 Gen. Laws [2d ed.], 3314.) 
 
 Under an ordinance requiring 
 street railroads to pay $4 per lineal 
 foot for each car and 2j4 per cent, 
 of the gross earnings at the time 
 of the acceptance of the franchise, 
 the street railroad company must 
 pay then and annually thereafter, 
 in advance, upon each car run by 
 it, the sum of $4 per lineal foot, 
 inside measurement. The payment 
 is a condition precedent to the 
 right to run the road, and in esti- 
 mating the amount due on each 
 car no allowance will be made for 
 the time the car was not in actual 
 operation. Cincinnati St. Ry. Co. 
 v. Cincinnati, 8 Ohio N. P. 80, 11. 
 Ohio S. & C. P. Dec. 15. 
 
^38 
 
 STREET SURFACE RAILROADS. 
 
 ditions Upon which they may be operated. 7° The power so 
 devolved upon the municipal council cannot be delegated. 
 They must themselves determine the question whether one 
 •or two tracks shall be laid and on what part of the street they 
 shall be placed, and where sidings, cross-overs, and switches 
 shall be built. These questions cannot ordinarily be left to 
 the discretion of the company under the usual statute regula- 
 tions.^' Of course, where a street railroad company has per- 
 mission by its charter to lay its tracks in the city streets, not 
 subject to the control of the municipal authorities, it may 
 lay the track wherever in its opinion it is for the company's 
 best interest •,^' and in the absence of a statutory prohibition, 
 
 70. Chicago City R. Co. v. 
 People, 73 111. 541. The city 
 council may, in the exercise of its 
 control and supervision of the 
 streets, designate the part to be 
 occupied by a street railroad com- 
 pany. Schmitt V. New Orleans, 
 48 La. Ann. 1445, 21 So. 24. 
 
 71. State, Theberath v. Newark, 
 57 N. J. L. (28 Vroom) 309, 30 
 Atl. 528; Citizens' St. Ry. Co. v. 
 Jones, 34 Fed. 579. If a statute 
 forbids the laying of railroad 
 tracks in a street without the con- 
 sent of the governing municipal 
 board be first obtained, that board 
 must know what particular tracks 
 are to be laid before it gives its 
 consent; and if it be authorized 
 to designate the number of street 
 railroad tracks that shall be laid 
 in a street, lane, or avenue of the 
 city, its ordinance authorizing the 
 laying of double tracks cannot be 
 set aside as unreasonable. State, 
 Kennelly, Pros. v. Jersey City, etc., 
 Ry. Co. (N. J. Sup.), s Am. Electl. 
 Cas. 146. A general charter power 
 
 to construct a line of street rail- 
 road authorizes the construction of 
 double tracks on the streets of a 
 city, provided the municipal au- 
 thorities consent. Brown v. At- 
 lanta R. & P. Co. (Ga.), 39 S. E. 
 71. And see Ruckert v. Grand 
 Ave. Ry. Co. (Mo.), 63 S. W. 
 814. 
 
 72. Cambal v. Met. St. R. Co., 
 82 Ga. 320, 9 S. E. 1078. By a 
 statute in New York, a street sur- 
 face railroad cannot be constructed 
 or extended upon ground occupied 
 by buildings belonging to any 
 town, city, county, or to the State, 
 or to the United States, or in pub- 
 lic parks, except in tunnels to be 
 approved by the legal authorities 
 having control of such parks, and 
 also, except that with certain pro- 
 visions, a portion of the city of 
 Niagara Falls is excepted from the 
 prohibition. 3 Heydecker's Gen. 
 Laws (2d ed.), 3323, § 108; Rail- 
 road Law, S 108, as amended by 
 chap. 460 of 1892, chap. 676 of 
 1892, and chap. 710 of 1899. 
 
LOCATION OF TRACK. 
 
 239 
 
 it may locate its tracks on one side of the street.^^ It must 
 however so construct and maintain its tracks that as Httle 
 injury as possible will result either to the pubHc or to ad- 
 joining owners.74 If such location and maintenance have 
 the authorization and approval of the municipal authorities 
 the company is relieved from the charge of maintaining a 
 nuisance in the highway; and it becomes liable for inter- 
 ference with the highway only in case it fails to use proper 
 care and skill in the construction of the railroad which it was 
 authorized to build and maintain thereon.'s The company 
 however cannot depart in any material degree from its 
 authorized location without being liable as for maintaining 
 a nuisance, whether its location be fixed by statute or ordi- 
 
 nance. 
 
 76 
 
 ■jj,. Niemann v. Det. Sub. St. R. 
 Co., 103 Mich. 256, I Am. & Eng. 
 R. Cas. (N. S.) 172, 61 N. W. 5I9- 
 
 74. Schild V. Central Park, N. & 
 E. R. R. Co., 133 N. Y. 446, 45 St. 
 Rep. (N. Y.) 656, 31 N. E. 327- 
 
 75. Wood V. Third Ave. R. Co., 
 13 Misc. Rep. (N. Y.) 308, 34 N. Y. 
 Supp. 698; Clifford v. Dam, 81 N. 
 Y. 52; Bellinger v. N. Y. C. R. Co., 
 23 id. 42. 
 
 76. Matter of Met. Transit Co., 
 Ill N. Y. 588, 19 N. E. 64s; Com- 
 missioners V. South Bend, etc., R. 
 Co., 118 Ind. 68, 20 N. E. 499. In 
 the case last cited, considerations 
 of great convenience and a large 
 outlay of money on the part of the 
 company were held to be no ex ■ 
 cuse for nonperformance of the 
 conditions of location. So where 
 the statute required that the street 
 railroad should be constructed " as 
 nearly as possible " in the middle 
 of the street, it vifas held that the 
 words meant "as nearly as prac- 
 ticable;" and the fact that the 
 
 convenience of the public would be 
 promoted by having the railroad 
 on the side of the street did not 
 warrant the departure from the 
 statutory provisions. Finch v. 
 Riverside, etc., R. Co., 87 Cal. 597, 
 25 Pac. 765. And see City of Phila- 
 delphia V. Continental Pass. R. Co., 
 II Phila. (Pa.) 315. Wherever the 
 statute does fix the location, an 
 ordinance in disregard of the stat- 
 ute provision is void. People v. 
 Riche, 54 Cal. 74; Omnibus R. Co. 
 v. Baldwin, 57 Cal. 160, i Am. & 
 Eng. R. Cas. 316. The location in 
 a public street of a street railroad 
 is trespass as against the owner of 
 the fee, unless it be made as a part 
 of one of the routes which the 
 company has authority to use. 
 Canastota Knife Co. v. Newington 
 Tramway Co., 69 Conn. 146, 36 
 Atl. 1 107; Collins v. Carbondale 
 (C. P.), 5 Pa. Dist. 18. In Penn- 
 sylvania, street railroads cannot lay 
 their lines across the country for 
 passenger traffic from one town to 
 
240 
 
 STREET SURFACE RAILROADS. 
 
 But slight deflection may be made.'' And if the 
 charter of the railroad company provides that each route 
 should be selected and the approval of the city council ob- 
 tained before any work thereon should be commenced, the 
 work can derive no benefit from a general ordinance grant- 
 ing authority to construct street railroads on any street in 
 the city, unless the route has been previously selected by the 
 company and submitted to the council for its approval.'^ If 
 an owner of land plat it into lots within the city limits and 
 
 another, but will be restricted to 
 highways for the accommodation 
 of local traffic along their line. 
 Rahn Township v. Tamaqua & L. 
 St. R. Co., 167 Pa. St. 84, 31 Atl. 
 472, 36 W. N. C. 165. Successors 
 of a railroad company chartered to 
 construct a belt line around a city 
 within a certain distance from its 
 center, consisting of a single or 
 double track three feet standard 
 narrow gauge railroad, cannot 
 without the consent of the city lay 
 down a third rail in a city street 
 converting the narrow gauge into 
 a standard gauge road and operate 
 such road as part of a great line 
 employed in transporting freight 
 and passengers throughout the 
 country. Walker v. Denver (C. 
 C. App. 8th C), 22 C. C. A. 470, 
 40 U. S. App. 464, 76 Fed. 670. 
 
 T!- Elmira v. Maple Ave. R. Co., 
 4 N. Y. Supp. 943; State v. New- 
 port St. R. Co., 16 R. I. 533; Com- 
 monwealth V. Wilkesbarre, etc., R. 
 Co., 127 Pa. St. 278. Where the 
 mayor and common council ap- 
 prove a plan for locating railroad 
 tracks in a city authorizing the 
 building of a crossover at a certain 
 point, the location of such cross- 
 
 over 530 feet east of such point is 
 not a compliance with the plan. 
 City of Hartford v. Hartford St. 
 Ry. Co. (Conn.), 47 Atl. 330. 
 
 78. West End, etc., R. Co. v. 
 Atlanta St. R. Co., 49 Ga. 151; 
 Concord v. Concord H. R. Co., 
 6s N. H. 630, 8 Atl. 87; State,, 
 Wilbur v. Trenton Pass. R. Co., 
 i7 N. J. L. (28 Vroom) 212, 31 
 Atl. 238. Where the franchise of 
 a street railroad company provided 
 that the track should be laid along 
 the north side of the highway and 
 in such manner as to obstruct as 
 little as possible the free passage of 
 vehicles " along ' the highway, and 
 that that portion of the roadway 
 lying adjacent to the south rail 
 of the track be properly dressed 
 to the track in order that vehicles 
 might easily cross, the highway 
 being sixty-six feet wide with a 
 space of about sixteen feet in the 
 middle thereof used for a driveway, 
 wherever the track comes into the 
 sixteen-foot driveway the company 
 must continue its grading. It need 
 not grade however wholly without 
 such driveway farther than the 
 south rail. People v. Detroit, etc., 
 Ry. Co. (Wis.), 81 N. W. 336. 
 
LOCATION OF TRACK. 
 
 241 
 
 plat a public street thereon and sell lots with reference 
 thereto, and then execute a warranty deed to a railroad cor- 
 poration conveying right to construct and operate a street 
 railroad upon the street according to the plat thereof, with 
 all the rights incident to the operation of railroads, the com- 
 pany does not thereby acquire an exclusive use of the entire 
 street for railroad purposes. Its right in the street is sub- 
 servient to the control of the municipal authorities whenever 
 the street is accepted as one of the public streets of the city.''' 
 Where the route has been established and the location of the 
 tracks designated by the proper authorities, these authorities 
 cannot be enjoined from requiring the company to change 
 the location of its tracks, where such change is neither un- 
 reasonable or arbitrary.*" But without the consent of the 
 
 79. Murray Hill Land Co. v. 
 Milwaukee Light, Heat & Trac- 
 tion Co. (Wis.), 86 N. W. 199. 
 
 80. Macon Consolidated St. R. 
 Co. V. Macon, 112 Ga. 782, 38 S. 
 E. 60. In the case cited it was 
 also held that the municipality 
 could not make a valid contract 
 abrogating or restricting its legis- 
 lative or discretionary power with 
 reference to the location of the 
 tracks of the street railroad com- 
 pany; and any agreement by which 
 it did undertake to divest itself of 
 such power could not be used as 
 a foundation for an estoppel 
 against it. West Phila. Pass. Ry. 
 Co. V. Philadelphia, 10 Phila. (Pa.) 
 70. Having acquired the right to 
 construct a part of its road in and 
 over certain streets, a company 
 may subsequently, with the consent 
 of the proper authorities, relay its 
 tracks upon other streets and re- 
 move the tracks first laid; and an 
 
 16 
 
 abutting owner cannot prevent 
 such change. Hoyle v. New Or- 
 leans City R. Co., 23 La. Ann. 
 535; Atty.-Gen. v. Chicago, etc., 
 R. Co., 112 111. 611. A street rail- 
 road company has no cause of ac- 
 tion against the city for expenses 
 incurred in relaying its tracks at 
 the request of the city to conform 
 to a change made in the street by 
 the city, where the ordinance 
 granting the franchise imposes 
 upon it all such expense. Ashland 
 St. R. Co. V. Ashland, 78 Wis. 
 271, 47 N. W. 619. A legislative 
 grant to a railroad corporation of 
 the right to lay tracks in streets 
 of a city does not divest the city 
 authorities of municipal control 
 over the operation of the road. 
 Under the present Constitution of 
 Missouri, the consent of the city 
 to such use of the streets is neces- 
 sary. Atlantic, etc., Ry. Co. v. St. 
 Louis, 3 Mo. App. 315. 
 
242 STREET SURFACE RAILROADS. 
 
 municipal authorities the railroad company cannot relay its 
 tracks in the new location, although such new location be 
 upon private property.*' 
 
 § 8. Construction of roadbed, track, turnouts, and switches. — 
 A railroad corporation having its rails in a public highway 
 must lay and keep them so as to cause as little injury as pos- 
 sible. The highway, or street, used for the rails must be 
 maintained, as nearly as possible, as fit for the use of the 
 public, who travel on foot or in vehicles, as it was before, 
 having due regard to the necessity for the rails being there. 
 Whether the rails are so laid as to constitute on its part the 
 neglect of proper conditions for the public safety is a ques- 
 tion of fact for the jury, and not- one of law for the court to 
 pass upon.®^ The manner of the construction, if it be in the 
 control and within the jurisdiction of municipal authorities, 
 cannot be governed by a court of equity.^^ And where the 
 charter of the company authorizes it to operate its road in 
 such streets as shall be determined by the common council 
 with the company's consent, and on compliance with such 
 conditions and under such regulations as the council shall 
 impose, an ordinance permitting the company to use certain 
 streets and prescribing the use of certain kinds of rails is not 
 such a contract as precludes the municipal authorities from 
 subsequently changing the rails so as to conform to the street 
 paving without the company's assent. The regulations 
 which the council may impose are not limited to the time 
 
 8i. Matter of South Beach Ry. etc., Ry. Co., 28 Mo. App. 332; 
 
 Co., 53 Hun (N. Y.), 131. Willis v. Erie City Pass. R. Co., 
 
 82. Schild V. C. P., N. & E. R. 188 Pa. St. 56, 41 Atl. 307. 
 
 Co., 133 N. Y. 446, 45 St. Rep. (N. 83. Rankin v. St. Louis & B. 
 
 Y.) 656, 31 N. E. 327; Cline v. Sub. Ry. Co. (U. S. C. C. 111.), 98 
 
 Crescent City Ry. Co., 41 La. Ann. Fed. 479. 
 1031, 6 So. 851; Keitel v. St. Louis, 
 
CONSTRUCTION OF TRACKS. 
 
 243 
 
 •when the road is built.** The city may require the railroad 
 -to conform to the grade of the rest of the street; and if the 
 street grade be changed, thereby requiring the change of 
 grade of the railroad, the company owning the road has no 
 valid claim for damages.^s Being duly chartered and having 
 secured the consent of all the local authorities of the town- 
 ships and municipalities through which its road extends, it 
 may begin the construction of the railroad in any part of the 
 route, whether it be the charter route or an extension.®* But 
 it has no right to build any part of its line Until it has the 
 right to complete it, unless it has the general power of 
 eminent domain.*^ Having built its line pursuant to the 
 direction of the township authorities, made in view of a con- 
 templated lowering of the grade, it is not chargeable with 
 negligence therefor.^* A mere delay in travel, following as 
 
 84. Pawcatuck Valley St. R. Co. 
 V. Town Council of Westerly, 47 
 Atl. 691; Detroit v. Fort Wayne, 
 etc., R. Co. (Mich.), 50 Am. & 
 Eng. R. Cas. 447; Albany v. Water- 
 vliet, etc., Co., 45 Hun (N. Y.), 
 442; affd., 108 N. Y. 14; Easton, 
 etc.. Pass. Ry. Co. v. Easton, 133 
 Pa. St. 505, 43 Am. & Eng. R. 
 Cas. 253, 19 Atl. 486. 
 
 85. Ashland St. Ry. Co. v. Ash- 
 land, 78 Wis. 271, 47 N. W. 619; 
 North Chicago City R. Co. v. 
 Lake View, 105 111. 184, 11 Am. 
 & Eng. R. Cas. 42, 44 Am. Rep. 
 788. But a covenant by a street 
 railroad company on acquiring a 
 franchise entitling it to construct, 
 operate, and maintain a line of rail- 
 road through specified streets, that 
 it will maintain the streets in first- 
 class order between the tracks and 
 two feet on each side thereof, does 
 not impose on the company the 
 
 additional duty of elevating the 
 entire surface of the streets on both 
 sides of the track to the height of 
 its roadbed. State, New Orleans 
 V. New Orleans Traction Co., 48 
 La. Ann. 567, 19 So. 565. Municipal 
 consent to the laying of a street 
 railroad does not authorize the lay- 
 ing of two distinct street railroads 
 on the same street. West Jersey 
 Traction Co. v. Camden H. R. 
 Co., S3 N. J. Eq. (8 Dick.) 163, 
 35 Atl. 49- 
 
 86. Hann v. Media, etc., R. Co. 
 (Pa.), 8 Del. Co. Rep. 91. 
 
 87. Penn. R. Co. v. Montgomery 
 Co. Pass. R. Co., 167 Pa. St. 62, 27 
 L. R. A. 766, I Am. & Eng. R. 
 Cas. (N. S.) 190, 31 Atl. 468, 36 
 W. N. C. 153- 
 
 88. Miller v. Lebanon & A. St. 
 R. Co., 186 Pa. St. 190, 42 W. N. 
 C. 274, 40 Atl. 413. 
 
244 STREET SURFACE RAILROADS. 
 
 a consequence of the lawful construction of its tracks in the 
 streets, is not a damage to property not directly abutting 
 upon the street where the tracks are laid.*' Nor indeed could 
 an abutting owner maintain an action therefor unless the 
 delay were unreasonable. Unless by law or its charter a rail- 
 road company is under obligation to lay and maintain its 
 tracks in a street in a particular manner, it may and must 
 adopt such modes of construction as are most approved for 
 such roads.'" It cannot, by contract with an individual, bind 
 itself that it will not in the future lay down more than a single 
 railway track in a designated street, as public necessity may 
 require otherwise.'' A street railroad company has the right 
 to put down such appliances, in the way of turnouts and 
 switches and sidetracks, as are needful for the convenient 
 use of its franchise. The only restriction upon the use of 
 this right is that the use may not be negligent or unskillful, 
 or without reasonable care therein.'^ Such necessary 
 switches and turnouts are not obstructions of the street so 
 as to warrant their summary and forcible removal by police 
 intervention without notice or a hearing, unless it clearly 
 appears that the authority to construct them has been ex- 
 ceeded.'^ An ordinance authorizing the construction of 
 
 89. Robert Mitchell Furniture Authority to " lay tracks and oper- 
 Co. V. Cleveland, 7 Ohio N. P. ate its road upon the center " of a 
 639, 10 Ohio S. & C. P. Dec. 218. designated street carries with it the 
 
 90. Fitts V. Cream City R. Co., right to put down a switch and 
 59 Wis. 323, 18 N. W. 186. siding necessary for the accommo- 
 
 91. Doane v. Chicago City R. dation of the public. Wyoming v. 
 Co., 57 111. App. 353, 8 Nat. Corp. Wilkesbarre, etc., R. Co. (C. P.), 
 Rep. 27. 8 Kulp (Pa.), 113. 
 
 92. Wooley V. Grand St. & N. 93. Cape May v. Cape May, etc., 
 R. Co., 83 N. Y. 121, 126; Carson R. Co., 60 N. J. L. 224, 39 L. R. 
 V. Central R. Co., 35 Cal. 325; A. 609, 37 Atl. 892, 7 Am. & Eng. 
 Wilkesbarre v. Coalville Pass. R. R. Cas. (N. S.) 585. 
 
 Co, (C. P.), 8 Kulp (Pa.), 298. 
 
DEFECTIVE TRACKS. 245 
 
 " such turnouts, switches, and sidetracks as may be neces- 
 sary," and providing that the whole length of road shall be 
 deemed one route, does not authorize the construction of a 
 Y switch to make a turning point for another street railway 
 company.9'' 
 
 § 9. Remedies for unauthorized or defective construction.-^ 
 The unauthorized, continuous obstruction of a public high- 
 way is an act which in law amounts to a public nuisance, and 
 a person who sustains a private and pecuHar injury from 
 such an act may maintain an action to abate the nuisance 
 and to recover the special damages by him sustained.'^ Xhe 
 corporation creating and maintaining the obstruction may be 
 indicted for maintaining a public nuisance,'^ or an action may 
 be maintained against it by the proper authorities to have 
 the nuisance abated, or for an injunction against it.s'' And 
 if the duty as to the construction or maintenance is impera- 
 tive, the proper authorities may proceed by mandamus 
 
 94. Rapid R. Co. v. Mt. Clem- it failed to complete its road in 
 ens, 118 Mich. 133, 76 N. W. 318, conformity therewith, can only be 
 S Det. Leg. N. 475. raised by the State or city granting 
 
 95. Wakeman v. Wilbur, 147 N. the franchise. Kitchell v. Man- 
 Y. 657, 663, 42 N. E. 341; Van chester R. El. Ry. Co., 79 Mo. 
 Horn V. Newark, etc.. Pass. R. App. 340, 2 Mo. App. Rep. 457. 
 Co., 48 N. J. Eq. 332, so Am. & 96. Commonwealth v. Old Col- 
 Eng. R. Cas. 235; Larrimer, etc., any, etc.,_R. Co., 14 Gray (Mass.), 
 St. R. Co. V. Larrimer, 137 Pa. 93; Pittsburg, etc., R. Co. v. Com- 
 St. 533; Met. City R. Co. v. Chi- monwealth, loi Pa. St. 192, 10 Am. 
 cago, 96 111. 620, 2 Am. & Eng. & Eng. R. Cas. 321. 
 
 R. Cas. 291; Nichols v. Ann Arbor, 97. Denver, etc., R. Co. v. Den- 
 
 etc, R. Co., 87 Mich. 361, 49 N- "ver City R. Co., 2 Colo. 673; Stam- 
 
 W. 538. Unless a particular injury ford H. R. Co. v. Stamford, 56 
 
 is suffered by the individual, the Conn. 381, 36 Am. & Eng. R. Cas. 
 
 question of the validity of the or- 140; Commonwealth v. Erie, etc., 
 
 dinances under which the street R. Co., 27 Pa. St. 339; Fanning v. 
 
 railroad company constructed and Osborne, 102 N. Y. 441, 7 N. E. 
 
 operated its road, and the fact that 307, 25 Am. & Eng. R. Cas. 252, 
 
246 STREET SURFACE RAILROADS. 
 
 against the company to compel its performance.^^ Rarely 
 however would an unauthorized construction, and never a 
 defective construction, work a forfeiture of the charter, un- 
 less there be an express provision to that effect contained 
 therein.99 if the statute, or the franchise of the company, or 
 any ordinance the municipality were authorized to adopt, 
 prescribes specifically the remedy for an unauthorized or 
 defective construction of the railroad in the streets, such 
 remedy of course must be pursued. A street railroad cor- 
 poration having, by contract duly recorded, the exclusive 
 right to build its road through the land of a railroad com- 
 pany to its depot, can restrain another company from inter- 
 fering with its road by any unauthorized construction.' In 
 the absence of statutory provision as to the manner in which 
 an order of the common council directing the street railroad 
 company to remove obstructions from the street shall be 
 brought to the company's notice, the mailing of a copy of 
 the order to the company by the city clerk and oral notice of 
 its passage by the person on whose complaint the order was 
 made is sufificient.^ 
 
 § 10, Construction and maintenance; how enforced. — Permis- 
 sion to construct and operate a street railroad in the streets 
 of a city, although accepted by the company, does not create 
 such an obligation upon it as may be enforced in equity or 
 by mandamus. But if the company has entered upon the 
 streets and made a partial construction of its track, the duty 
 to complete it according to the provisions of its charter or 
 
 98. Ohio & Mississippi Ry. Co. 1. Fort Worth St. R. Co. v. 
 
 V. People, 100 111. 200, 30 Am. & Queen City R. Co., 71 Tex. 165, 
 
 Eng. R. Cas. 509. 9 S. W. 94. 
 
 99- People v. A. A. R. Co., 125 2. Hartford v. Hartford St. R. 
 
 N. Y. S13, 26 N. E. 622. Co. (Conn,), 47 Atl. 330. 
 
UNDERGROUND WIRES. 247 
 
 franchise is imperative, and its performance may be so 
 enforced.' If the charter or franchise requires 'the construc- 
 tion to be completed within a hmited time, and also provides 
 that otherwise the company's rights should be forfeited, a 
 proceeding to have the forfeiture declared and enforced may 
 be successfully maintained,"* unless the failure to complete 
 the road is in nowise the fault of the company; as for example 
 when there has been interference on the part of the city 
 authorities or by the courts, ^ If after the expiration of the 
 time the municipality permits the company to proceed with 
 the work of construction it may be estopped from claiming a 
 forfeiture.* If it be provided that the road shall be " com- 
 pleted within one year,. and so much of said right of way 
 as may not be occupied by said company within said time 
 shall be considered abandoned," the company forfeits its 
 right to construct the unfinished portion of the road after the 
 expiration of the year.^ 
 
 § 11. Placing electrical conductors underground. — Although 
 under due authority of law and municipal consent an elec- 
 
 3. State, Grinsfelder v. Spokane Am. &,Eng. R. Cas. 17; People 
 St. R. Co., 19 Wash. 518, 53 Pac. v. Los Angeles El. R. Co., 91 Cal. 
 719, 41 L. R. A. S15, II Am. & 338, 2^ Pac. 673- 
 
 Eng. R. Cas. (N. S.) 62; People 5. State v. Cockren, 25 La. Ann. 
 
 V. Rome, W. & O. R. Co., 103 N. 536; Coney Island, etc., Co. v. Ken- 
 
 Y. 95, 8 N. E. 369. A railroad nedy, 15 App. Div. (N. Y.) 588, 
 
 constructed in a city street under 44 N. Y. Supp. 825; Chicago v. 
 
 legislative and municipal sanction Chicago, etc., R. Co., 105 111. 73, 
 
 is not a nuisance if laid down in 10 Am. & Eng. R. Cas. 306; 
 
 the most approved mode of con- Schmidt v. Market St. & W. G. 
 
 structing street railroads. Randall R. Co., 90 Cal. 37, 27 Pac. 61. 
 
 V. Jacksonville St. R. Co., 19 Fla. 6. New Orleans, etc., R. Co. v. 
 
 4(3p. New Orleans, 44 La. Ann. 748, 
 
 4. People V. B. R. Co., 126 N. 11 So. 7T. 
 
 Y. 29, 26 N. E. 961, 48 Am. & Eng. 7. Houston v. Houston, etc., R. 
 
 R. Cas. 692; Hovelman v. Kansas Co., 84 Tex. 581, 50 Am. & Eng. 
 City H. R. Co., 79 Mo. 632, 20 R. Cas. 380, 19 S. W. 786. 
 
248 STREET SURFACE RAILROADS. 
 
 trical street surface railroad has constructed its road, placing 
 its poles upon and stringing its wires along the streets of a 
 city, it does not follow that it has a right permanently to 
 carry the electricity requisite for the successful operation of 
 its road in such manner. The exercise of its rights is sub- 
 ject always to the regulation and control of the legislature. 
 By giving the franchise the State did not abdicate its power 
 over the public streets, nor in any way curtail its police 
 powers to be exercised for the general welfare of the people, 
 nor absolve itself from its primary duty to maintain the 
 streets and highways of the State in a safe and proper con- 
 dition for public travel and other necessary street and high- 
 way purposes. The grant of a right in the street, if any there 
 be, in such a franchise was made in reference to the streets 
 and their maintenance and regulation forever as streets. 
 The State could at all times regulate the size and location of 
 the poles, the height of the wire from the surface of the 
 ground and their location in the streets; and when the poles 
 and wires become a serious obstruction and nuisance in the 
 streets from any cause, it could take such action and make 
 such provisions by law as were needful to remove the 
 nuisance and restore the utility of the streets for public pur- 
 poses.* In the large cities of the land these poles and wires 
 
 8. A. R. T. Co. V. Hess, 125 N. corporations created by its au- 
 
 Y. 641, 646, 26 N. E. 919. In the thority, may exercise a general 
 
 case cited the court further said: supervision over such corporation. 
 
 " The right of the plaintiff to It may prescribe the location of 
 
 maintain and operate its wires in the tracks, the size and character 
 
 the streets could certainly be no of the rails, the precautions which 
 
 greater than the right of railroads, shall be taken for the protection 
 
 which by public authority occupy of the public and the character and 
 
 the streets and highways of the style of highway crossings; and no 
 
 State. The State, in the exercise one has ever questioned that it 
 
 of its police power, and the regu- may do whatever is necessary and 
 
 lating control which it has over proper for the public welfare in 
 
UNDERGROUND WIRES. 
 
 249 
 
 have become a serious obstruction and nuisance in the 
 streets, and the legislature has, either directly in the charters 
 granted to the cities or by general provision of law, author- 
 ized the making of subways within which the municipality 
 might direct that all electrical conductors should be placed. 
 In New York, as early as 1884, a law was enacted requiring 
 practically all electric and other wires and cables to be re- 
 moved from the surface of all streets or avenues in every city 
 of the State having a population of 500,000 or over.' The 
 
 the control and regulation of the 
 franchises which such corpora- 
 tions have obtained by statutory 
 authority." 
 
 The opinion of Judge Earl also 
 contains the history of the sub- 
 ways legislation theretofore had in 
 the State, and it is there said, 
 page 648: " Subways having been 
 constructed in certain of the streets 
 of the city of New York by the 
 Consolidated Telegraph and Elec- 
 trical Subway Company, under 
 the supervision and with the ap- 
 proval of the board of electrical 
 control, notice was given to the 
 plaintiflf, as provided in the act, to 
 remove its poles and wires from 
 the streets, and place its electrical 
 conductors in such subways. Hav- 
 ing refused to comply with such 
 notice and with the provisions of 
 the act, the commissioner of pub- 
 lic works of the city caused the 
 poles to be cut down and the wires 
 to be removed from the streets; 
 and this is what the plaintiflf com- 
 plains of. Its property was not 
 taken for public use; it was sim- 
 ply removed from the streets where 
 it had become a nuisance, and the 
 public authorities had the same 
 
 right to remove it from the streets, 
 doing no unnecessary damage, that 
 it had to remove any other in- 
 cumbrance therefrom. After the 
 passage of the acts referred to and 
 the building of the subways, and 
 the notice to the plaintiflf, it had 
 no right longer to maintain its 
 poles and wires above the surface 
 of the street. They were then 
 there without authority, and thus 
 became a nuisance, and hence the 
 public oflficials had the right to re- 
 move them." State v. Street Com- 
 missioner, 7 Am. Electl. Cas. 124, 
 71 Conn. 657; Telephone Co. v. 
 Baltimore, 7 Am. Electl. Cas. 135, 
 
 89 Md. 689; C. & P. Teleph. Co. v. 
 Baltimore, 7 Am. Electl. Cas. 151, 
 
 90 Md. 638 ; Baltimore v. Telephone 
 Co. (Ct. App. Md.), 7 Am. Electl. 
 Cas. 158; Telephone Co. v. Minne- 
 apolis, 7 Am. Electl. Cas. 168, 81 
 Minn. 140; N. W. Teleph. Co, v. 
 Minneapolis (Minn. Sup. Ct, May, 
 1901), 7 Am. Electl. Cas. 179. 
 
 g. Laws of 1884, chap. 534. By 
 chapter 499 of 1885, provision was 
 made in detail for enforcing the 
 act of 1884 in all cities of the State 
 having more than 500,000 and less 
 than 1,000,000 of population; and 
 
250 STREET SURFACE RAILROADS. 
 
 trend of legislation seems to be toward authorizing munic- 
 ipalities to build the necessary subways, or to empower a 
 private corporation to build the same under municipal di- 
 rection and control, and require all corporations using elec- 
 tricity for light, heat, or power to place their wires within 
 such subways, upon terms to be arranged with the cor- 
 poration controlling the subway, subject however to the 
 supervision of the municipality. It cannot be suc- 
 cessfully claimed that a corporation whose business re- 
 quires it to convey electricity within the limits of a munic- 
 ipality cannot be compelled to place its electrical conductors 
 in such a subway without violating rights guaranteed to the 
 corporation by the Federal Constitution, simply because it 
 has a franchise previously granted; unless the subways were 
 so constructed as to require wires of dififerent voltage to be 
 placed in close proximity and in such manner as to materially 
 interfere in the proper management of the corporation's 
 business. The interference however would have to amount 
 to a substantial denial of the right to exercise the privileges 
 acquired by it under the legislative authority of the State."* 
 
 the mayor, comptroller, and com- 10. City of Rochester v. Bell 
 
 missioner of public works of such Tel. Co., 52 App. Div. (N. Y.) 6; 
 
 cities were authorized and directed People ex rel. N. Y. Electrical 
 
 to appoint three disinterested per- Lines v. Squire, 107 N. Y. 593, 14. 
 
 sons, residents of the respective N. E. 820. In the case last cited 
 
 cities for which they should be Chief Judge Ruger, in reference 
 
 appointed, to be a board of com- to such statutes, said: "The 
 
 missioners of electrical subways. necessity of these acts sprung out 
 
 The statutes particularly appli- of the great evil, which, in recent 
 
 cable to New York city are sec- times, has grown up and afflicted 
 
 tions 525 and 526 of the charter of large cities by the multiplication 
 
 the city of New York, vol. 3, Laws of rival and competing companies, 
 
 of N. Y. of 1901, p. 235, and chap. organized for the purpose of dis- 
 
 716 of 1887, 231 of 1891, and 263 tributing light, heat, water, the 
 
 of 1892, and the laws amendatory transportation of freight and pas- 
 
 thereof and supplemental thereto. sengers, and facilitating communi- 
 
UNDERGROUND WIRES. 
 
 251 
 
 The city must see to it that reasonable skill in constructing 
 its conduits is exercised, to the end that the operations of the 
 corporation using a weak current shall not be embarrassed by 
 the presence in the same conduit of wires charged with 
 powerful currents of electricity. Where the statute leaves it 
 discretionary with the city whether it shall itself construct the 
 conduits or allow the electrical corporations to do so, the 
 
 cation between distant points, and 
 which require in their enterprises 
 the occupation, not only of the 
 surface and air above the streets, 
 but indefinite space underground. 
 This evil had become so great that 
 every large city was covered with 
 a network of cables and wires at- 
 tached to poles, houses, build- 
 ings, and electric structures, bring- 
 ing danger, inconvenience, and 
 annoyance to the public. * * * 
 These statutes were obviously in- 
 tended to restrain and control, as 
 far as practicable, the evils al- 
 luded to by requiring all such 
 wires to be placed underground 
 in such cities, and be subject to 
 the control and supervision of local 
 officers who could reconcile and 
 harmonize the claims of conflict- 
 ing companies, and obviate, in 
 some degree, the evils which had 
 grown up almost, if not quite, in- 
 tolerable to the public. The 
 scheme of these statutes was not 
 to annul or destroy the contract 
 rights of such companies, but to 
 regulate and control their exer- 
 cise." 
 
 Upon appeal to the United 
 States Supreme Court the decision 
 of the New York Court of Ap- 
 peals was affirmed, and with ref- 
 erence to the right of the city to 
 control the subways the Supreme 
 
 Court said: "It would be an 
 anomaly in municipal administra- 
 tion if every corporation that de- 
 sired to dig up the streets of the 
 city and make underground con- 
 nection for sewer, gas, water,, 
 steam, electricity, or other pur- 
 poses should be allowed to pro- 
 ceed upon its own theory of what 
 were plans for it to adopt and 
 proper excavations to make. The 
 evils that would follow from such 
 a system of practice would be a 
 great gravity to the public, and 
 would entail endless disputes and 
 bickerings with prior parties hav- 
 ing equal rights. The utmost that 
 can be said against the acts of 
 1885 and 1886 is that they trans- 
 ferred the supervision and con- 
 trol of the matters of excavation 
 of the streets and the construction 
 of underground electrical systems 
 from the commissioner of public 
 works to the board of subway 
 commissioners. That is the sum 
 total of the change effected. Not 
 a right of the electrical companies 
 was violated, and no contract was 
 impaired. The expressly reserved 
 power of the State or municipality 
 to regulate the use of the streets 
 and highways in such manner as 
 not to injuriously affect the pub- 
 lic interests are merely transferred 
 from one public functionary to an- 
 
252 
 
 STREET SURFACE RAILROADS. 
 
 determination of the city to build the conduits and their sub- 
 sequent construction by it, makes it obligatory upon the 
 electrical corporations to use them; and they cannot avoid 
 the obhgation because the city has made no rules in regard 
 to such use. The court will assume that suitable rules will 
 be made by the city, and that reasonable facilities and protec- 
 tion will be afforded to each corporation required to use the 
 subway." An exclusive right to maintain subways and 
 conduits for electrical conductors in the streets of a city and 
 to compel all persons and corporations using such con- 
 ductors to place them in the subways and pay rent for the 
 privilege can only be acquired by contract or by statute." 
 A subway company is not a common carrier. It does not 
 
 other. The power was not en- 
 larged; only the agency by which 
 the supervising power of the State 
 was to be exercised was changed." 
 People of the State of New York 
 V. Squire, 145 U. S. 175, 190, 36 
 L. Ed. 666, 671. 
 
 It is not ultra vires for a munici- 
 pal corporation empowered by its 
 charter to regulate the use of streets 
 to enact an ordinance empowering 
 a private corporation organized for 
 public purposes, to occupy streets 
 by subways and electrical apparatus, 
 without requiring that all the pub- 
 lic be permitted to use the subways, 
 and without reserving to the mu- 
 nicipal authorities the right of su- 
 pervision or control. State ex rel. 
 Nat. Subway Co. v. St. Louis, 7 
 Am. Electl. Cas. 195, 145 Mo. 551. 
 And see Rochester v. Telephone 
 Co., 7 Am. Electl. Cas. 211, 52 
 App. Div. (N. Y.) 6; Common- 
 wealth V. Mayor, 7 Am. Electl. Cas. 
 219; 185 Pa. St. 623; W. U. Tel. 
 
 Co. V. Syracuse, 24 Misc. Rep. (N. 
 Y.) 338; State ex rel. Gas Light 
 Co. V. Murphy, 5 Am. Electl. Cas. 
 71; Prentiss v. Cleveland Tel. Co. 
 (Ohio Com. PL), id. 125, 32 W. 
 L. B. 113. 
 
 11. Matter of Geneva v. Geneva 
 Tel. Co., 30 Misc. Rep. (N. Y.) 
 236, 62 St. Rep. (N. Y.) 172. 
 
 12. Empire City Sub. Co. v. B. 
 & S. A. R. Co., 5 Am. Electl. 
 Cas. 66, 87 Hun (N. Y.), 279, 
 283. In the case cited it was 
 also held that a street surface rail- 
 road company lawfully using a 
 cable for motive power in New 
 York city, upon condition and un- 
 der obligation to use every pro- 
 vision that ingenuity can suggest 
 to operate the cable with safety, 
 may lawfully construct upon its 
 roadbed and use an iron pipe con- 
 taining electric wires for use in 
 communicating between its power- 
 house and its signal-boxes intelli- 
 gence relating to the operation of 
 
paving; repairing. 253 
 
 invite employment from the public generally, nor obligate 
 itself to serve the public generally. The business is purely a 
 private one.'^ The occupancy of a subway by a company 
 using electrical conductors with knowledge of the rental 
 demanded, constitutes a contract with the subway company 
 to pay the rental."* An action may be maintained by a tax- 
 payer to prevent the execution of a proposed contract with 
 a subway company, if the contract fail to bind the company 
 to construct the subways within the time limited by law.'^ 
 The New Jersey act for the placing of electrical conductors 
 underground, etc., does not authorize the board of commis- 
 sioners of electrical subways thereby created to grant a fran- 
 chise for erecting poles and wires in the streets for the trans- 
 mission of electricity.'* 
 
 § 12. Paving and repaying. — It may be safely stated that in 
 every municipality, either by statute or by ordinance of the 
 
 the road, and in order to stop "the because the city did not reserve 
 
 cable in case of an accident upon control over the excavations, the 
 
 its lines, and need not put such laying of wires and all other in- 
 
 wires in the subways of the plain- cidents to the maintenance, con- 
 
 tifif. struction, and use of the subway. 
 
 The New York Subway Stat- 14. Brush El. Illuminating Co. 
 
 utes of 1884 and 1885 were held v. Consolidated Tel., etc., Sub. 
 
 constitutional in the cases above Co., 60 Hun (N. Y.), 446. Under 
 
 cited, and also in Clausen, etc., New York act of 1887, chap. 716, 
 
 Brewing Co. v. B. & O. Tel. Co. creating the board of electrical 
 
 (N. Y.), 2 Am. Electl. Cas. 210; control, such board has the duty 
 
 W. U. Tel. Co. v. New York, 38 of determining all questions as to 
 
 Fed. 552; United Lines Tel. Co. v. the placing, erecting, construct- 
 
 Grant, 137 N. Y. 7, 32 N. E. 1005. ing, suspension, use, regulation, or 
 
 13. State v. Murphy, 6 Am. control of electrical conductors in 
 
 Electl. Cas. 64, 77, 134 Mo. 548, the city of New York. U. S. 
 
 31 S. W. 784, 34 id. SI, 35 id. Illuminating Co. v. Hess, 19 St. 
 
 1 132. The case cited also held Rep. (N. Y.) 883. 
 
 that an ordinance granting to a I5- Armstrong v. Grant, 56 Hun 
 
 subway corporation power to lay (N. Y.), 226. 
 
 a subway for electrical wires un- 16. Presbyterian Church v. El. 
 
 der all the streets of the city for Sub., etc., Pass. R. Co., 55 N. J. 
 
 a period of fifty years was invalid L. 436. 
 
254 STREET SURFACE RAILROADS. 
 
 municipal authorities, a street surface railroad company- 
 operating within its limits is required to pave and to maintain 
 the pavement between the rails of its track and for a certain 
 ■distance outside of each outer rail. The statute of New 
 York, copied in the note 19 to section 2 of this chapter, re- 
 quires the railroad corporation to have and keep in perma- 
 nent repair that portion of the street, avenue, or public place 
 between the rails of its tracks and two feet in width outside 
 of its tracks, under the supervision of the proper local au- 
 thorities, and whenever required by them to do so and in 
 such manner as they may prescribe. Under this statute, the 
 Court of Appeals has held that it becomes the duty of the 
 street surface railroad corporation to keep in permanent re- 
 pair such portion of the street through which it passes as is 
 within its tracks and two feet in width outside of each rail; 
 and that the local authorities of the municipality were vested 
 with the authority to determine when the repairs should be 
 made, and how they should be made, and that the entire 
 street should be repaved and with other material. In case of 
 the neglect of the corporation to repave within thirty days 
 after notice given it to do so, then the local authorities may 
 do the work at the expense of the corporation. But they 
 have no power to charge any portion of the expense of re- 
 pairing that portion of the street which the statute says the 
 street surface railroad shall l^eep in repair upon either the 
 abutting owner or the city at large. '^ The duty to pave or 
 
 17. Conway v. Rochester, 157 v. City of Linco'n (Nebr.), 84 N. 
 
 N. Y. 33, SI N. E. 395; Cambria W. 802. 
 
 Jron Co. V. Union Trust Co. of The laying of sleepers and cross- 
 
 St. Louis, 154 Ind. 291, 56 N. E. ties by a street railroad company 
 
 665; People V. Utica, 45 App. Div. in streets in which it proposes to 
 
 (N. Y.) 356, 61 N. Y. Supp. (95 construct its road in the future, 
 
 St. Rep.) 31; Lincoln St. Ry. Co. before such streets are paved by 
 
paving; repairing. 
 
 255 
 
 to repave does not rest upon the railroad corporation where 
 it has a mere license to use the streets ior its corporate pur- 
 poses; and if the charter or franchise specifically provides 
 
 the corporate authorities, is not 
 such an appropriation by the com- 
 pany of the streets to its own use 
 as will make it liable for the ex- 
 pense of paving under a provision 
 in its charter that it shall keep its 
 tracks and a space between, and 
 two feet outside the outer rail at 
 all times well paved and in good 
 order. District of Columbia v. M. 
 R. Co., 8 App. D. C. 332, 24 
 Wash. L. R. s66. A provision in 
 an original grant to a street rail- 
 road company authorizing it to 
 construct and operate a railroad in 
 certain streets, relating to the pav- 
 ing of a portion of the streets, does 
 not apply to an extension of the 
 tracks in other streets constructed 
 Tinder authority of a subsequent 
 grant where there is nothing to 
 show that the grant of the author- 
 ity to build the extension was ac- 
 cepted with the knowledge and 
 understanding on the part of those 
 to whom the concession was made 
 that the terms of the original 
 grant respecting repairs to the 
 street should be included as one 
 of the conditions upon which the 
 right to build the extension was 
 granted. Mayor v. Eighth Ave. 
 R. Co., 7 App. Div. (N. Y.) 84, 
 39 N. Y. Supp. 959; Mayor v. N. 
 Y". & H. R. Co., 19 id. 67. 
 
 Of course if the authority of the 
 municipality is not limited by or 
 under the original franchise it may 
 impose as a condition for granting 
 the right to extend that the rail- 
 road company pay the expense of 
 paving in streets previously oc- 
 
 cupied. F. & S. Philadelphia City 
 Pass. Ry. Co. v. Philadelphia, 17 
 W. N. C. 345; Detroit v. Detroit 
 City Ry. Co., 37 Mich. 558; Dallas 
 V. Dallas Consolidated T. R. Co. 
 (Tex. Civ. App.), 33 S. W. 757- 
 
 Under the New York act a city 
 common council cannot, by a 
 contract with the railroad com- 
 pany, exempt it from full statu- 
 tory liability imposed by the act 
 as subsequently amended Weed 
 V. Common Council of Bingham- 
 ton, 26 Misc. Rep. (N. Y.) 208, 
 S6 N. Y. Supp. (90 St. Rep.) 105. 
 But the act of May 23, 1901, 
 amending section 93, authorizing 
 cities of the third class to make 
 such contracts and confirming 
 those previously made, passed af- 
 ter the commencement of this suit 
 by the taxpayers to compel a city 
 to disregard the contract and en- 
 force against the company a tax 
 to the full extent provided by law, 
 destroys the right of action. Weed 
 v. Common Council of Bingham- 
 ton, 71 St. Rep. (N. Y.) 282. And 
 such a contract may embrace a 
 subsequent extension of the tracks 
 made by a company formed by the 
 consolidation of the two com- 
 panies which had previously con- 
 tracted with the city where the 
 contract provided that it was to 
 apply to any extension of the 
 tracks and be binding on any com- 
 pany with which the contracting 
 companies might be consolidated. 
 Id. 
 
 Where a condition of the fran- 
 chise requires a street surface rail- 
 
256 
 
 STREET SURFACE RAILROADS. 
 
 what the railroad corporation shall do toward paving and 
 maintaining the pavement of the street, its burden cannot be 
 added unto by subsequent enactment unless the right to 
 make such addition is reserved to the municipality. An 
 obligation to keep the street in repair does not compel the 
 company to grade or pave the street. If the language of the 
 
 road company to pave a certain 
 part of one of the streets which 
 it is given right to occupy with its 
 tracks, the railroad company may, 
 with the consent of the city, sub- 
 stitute a different portion of the 
 street for that originally designated 
 as against objections on the part 
 of owners of a property abutting 
 on the part of the street originally 
 secured for paving. Barber As- 
 phalt Pav. Co. v. New Orleans & 
 C. R. Co., 49 La. Ann. 1608, 22 
 So. 955. 
 
 Where permission has been 
 granted to a street railroad com- 
 pany to lay its tracks on a paved 
 street, and it is expressly stipu- 
 lated that no charge for paving 
 should be made against the com- 
 pany the municipal council can- 
 not thereafter, under an act sub- 
 sequently passed providing that 
 when a street railroad company 
 lays its .track on a street already 
 paved the city may require con- 
 tribution from it for such amount 
 on account of the paving as the 
 mayor and council think proper, 
 enforce, by execution or other- 
 wise, a claim against the company 
 for any portion of the original cost 
 of paving in that street. Atl. Con- 
 solidated St. Ry. Co. v. Atlanta, 
 III Ga. 25s, 36 S. E. 667. Under 
 that act so subsequently passed, 
 it is incumbent on the mayor and 
 
 general council before granting a 
 street railroad company permis- 
 sion to lay its tracks on a paved 
 street to fix the amount of com- 
 pensation which will be required 
 of it. Id. 
 
 The words " property-owners 
 abutting " in an ordinance requir- 
 ing a street railroad company 
 laying its tracks in a street al- 
 ready paved to pay the property- 
 owners abutting for the paving be- 
 tween the rails do not apply to 
 the city as owner of the streets, 
 so as to require payment for street 
 intersections. City of Council 
 Bluffs V. Omaha & C. B., etc., 
 Co. (Iowa), 86 N. W. 222. 
 
 A street railroad company may 
 be required to pay its propor- 
 tionate share of the cost to a city 
 of putting in a new pavement 
 where its charter requires it to 
 keep the space between its track 
 and for two feet outside " well 
 paved and dn good order," al- 
 though the original pavement had 
 been put in but a short time before 
 and proved worthless. District of 
 Columbia v. M. R. Co., 8 App. 
 D. C. 322, 24 Wash. L. Rep. 566. 
 
 For a definition of " head " of 
 a street, within the meaning of the 
 Paving Act, see Kennedy v. De- 
 troit R. Co., 108 Mich. 390, 2 Det. 
 Leg. N. 894, 66 N. W. 495- 
 
paving; repairing. 
 
 257 
 
 franchise or other contract is of doubtful construction the 
 practical interpretation by the parties themselves is entitled 
 to great, if not to controlling, influence.'* If the munic- 
 ipality is merely authorized to require the street railroad 
 corporation to pave and repave betvi^een their tracks, then 
 the matter is left in the discretion of the municipaUty, and 
 in the absence of a direction by its authorities to the railroad 
 company to pave, the entire assessment for paving the streets 
 may be laid upon the abutting owners and the city at large.'* 
 The duty however to require the street railroad to bear its 
 share of the burden is generally made imperative, and the 
 
 18. Chicago V. Sheldon, 76 U. 
 S. (9 Wall.) so, 19 L. Ed. 594; 
 Kansas City v. Corrigan Consol. 
 St. Ry. Co., 86 Mo. 67. 
 
 19. Gilmore v. Utica, 121 N. Y. 
 561, 24 N. E. 1009, 31 St. Rep. 
 (N. Y.) 880. The municipal au- 
 thorities may repeal an ordinance 
 authorized by statute providing 
 that passenger railroad companies 
 extending their tracks through 
 additional streets, with the con- 
 sent of the city council, shall be 
 subject to the ordinances relating 
 to paving and repaving, and re- 
 quiring the company to pay the 
 entire cost of paving and repaving. 
 Thereafter such cost, so far as it 
 relates to streets never before 
 paved, may be made a charge on 
 the abutting owners. Philadelphia, 
 O'Rourke v. Bowman, 175 Pa. St. 
 91, 38 W. N. C. 143, 34 Atl. 353. 
 Where the entire cost and expense 
 of paving, repairing, and repaving 
 " on any street occupied by it " 
 may be assessed against the rail- 
 road company, its duty to repair 
 or repave extends to the entire 
 
 17 
 
 roadway from curb to curb. 
 Philadelphia v. Ridge Ave. Pass. 
 Co., 22 Atl. 69s ; Philadelphia v. 
 Evans, 139 Pa. St. 483. 
 
 The power conferred by statute 
 upon certain cities to compel 
 street railroad companies when- 
 ever any street is " ordered paved " 
 to pave and maintain a specified 
 part thereof, relates only to streets 
 paved before occupation by the 
 street railroad company. Osca- 
 loosa St. R. & L. Co. v. Oscaloosa, 
 99 Iowa, 496, 68 N. W. 808. A pro- 
 vision in the charter of a railroad 
 company to the effect that when- 
 ever its road is laid and used by 
 running passenger cars thereon 
 the company shall be subject to 
 the ordinance of the city requiring 
 the running of passenger railway 
 cars, does not make the company 
 liable for the cost of street pav- 
 ing. Philadelphia v. Empire Pass. 
 R. Co., 177 Pa. St. 382, 35 Atl. 
 721. And see Shamokin v Sham- 
 okin St. R. Co., 178 Pa. St. 128, 
 35 Atl. 862, 39 W. N. C 136. 
 Macadamizing is not paving within 
 
258 
 
 STREET SURFACE RAILROADS. 
 
 municipal authorities must determine the necessity for the 
 repaying, the time when and the material with which it shall 
 be done.^° A street railroad company is not liable to pay for 
 the paving or repaying of a street simply because its rails, 
 ties, and tracks are property within the street and subject to 
 taxation generally; such property is not property benefited 
 within the meaning of the municipal charter providing that 
 the cost, or a part thereof, of any local improvement shall be 
 assessed upon the property benefited thereby/' Under its 
 common-law duty to maintain its tracks in a public street 
 so as not to be an obstruction to travel thereon when a new 
 pavement is ordered, a street surface railroad company must 
 relay its tracks and adjust its roadbed to the new pavement 
 and grade.^^ A permit to the company to relay its rails in 
 
 the meaning of a requirement that 
 the streets should be " graded and 
 paved." United Rys. & El. Co. 
 of Baltimore v. Hayes (Md.), 48 
 Atl. 364. 
 
 20. Detroit v. Fort Wayne & E. 
 R. Co., go Mich. 646, 6 Am. R. 
 & Corp. Rep. 188, 51 N. W. 688, 
 50 Am. & Eng. R. Cas. 447; Lans- 
 ing V. Lansing City El. R. Co., 
 109 Mich. 123, 3 Det. Leg. N. 41, 
 66 N. W. 949; Philadelphia v. 
 Ridge Ave. Pass. Ry. Co., 22 Atl. 
 395; Columbus v. Columbus St. 
 R. Co., 45 Ohio St. 98, 12 N. E. 
 651 ; City of Reading v. Union 
 Tract. Co. (Pa. C. P.), 24 Pa. Co. 
 Ct. 629; Village of Mechanicville 
 V. S. & ^L St. Ry. Co., 35 Misc. 
 Rep. (N. Y.) 513. An express 
 provision in the charter requiring 
 the company to pay the entire cost 
 of paving and repaying any street 
 where its track is laid, is not 
 limited by a preceding clause that 
 
 the company in constructing its 
 road shall conform to the surveys 
 and grades established or there- 
 after to be established to the time 
 of the first construction. Phila- 
 delphia, Nestor v. Spring Garden, 
 etc., Co., 161 Pa. St 522, 29 Atl. 
 286. 
 
 21. People ex rel. Davidson v. 
 Gilon, 126 N. Y. 147, 27 N. E. 282, 
 37 St. Rep. (N. Y.) 17. In the 
 case cited the provision of the 
 New York charter, under the Con- 
 solidation Act of 1882, was con- 
 strued. The present provision is 
 section 949 of chapter 466 of 1901, 
 and is substantially the same as 
 the former provision. 
 
 22. Columbus v. Columbus Sl 
 R. Co., 45 Ohio St. 98, 12 N. E. 
 651; Western Paving & Supply 
 Co. V. Citizens' St. Ry. Co., 128 
 Ind. 525, 26 N. E. 188; District 
 of Columbia v. Washington & 
 Georgetown Ry. Co., i Mack. 361. 
 
REPAIRS. 259 
 
 a paved street necessarily includes the taking up of the 
 pavement.''* 
 
 § 13. Kepairs. — The right of a street surface railroad com- 
 pany to lay its tracks in the street carries with it the obliga- 
 tion to lay them in a proper manner and keep them in 
 repair; and if an injury occurs by reason of neglect in either 
 of these respects, the defendant is liable in damages. The 
 duty is affirmative and absolute. Notice to the company of 
 the defect is not necessary. ^^ Although notice of the defect 
 is presumed, the presumption may be rebutted.^^ Although 
 the right of the company even to that part of the street occu- 
 pied by its rails is only in common with that of other 
 travelers, yet where its road to be available at all must be 
 exclusive, as for example for unobstructed passage, it is of 
 necessity, for the time being, superior or paramount; hence, 
 its common-law duty to repair.^^ Where it has the right to 
 maintain an electric system for power, it has the right to use 
 
 23. North Chicago St Ry. Co. juries resulting from the construc- 
 V. Dudgeon, 104 111. 477, S6 N. E. tion of the railroad. Hatch v. Ta- 
 796. coma, O. & G. H. R. Co., 6 Wash. 
 
 24. Worster v. Forty-second St., i, 32 Pac. 1063; Silsby v. Same, 
 etc., R. Co., 50 N. Y. 203, 205; id. 1067; Mahnke v. New Orleans 
 Call V. Portsmouth, K. & Y. St. City & L. R. Co. (La.), 29 So. 52; 
 Ry. (N. H.), 45 Atl. 405; Maloney Siacik v. N. Central Ry. Co. (Md.)', 
 V. Railway Co., 173 Mass. 587; N. 48 Atl. 149; Citizens' St. Ry. Co. 
 Y. & N. J. Tel. Co. V. Railroad Co. v. Ballard, 22 Ind. App. 151, 52 
 51 La. Ann. 299; Simon v. M. St. N. E. 729. See Galveston City R. 
 R. Co., 29 Misc. Rep. (N. Y.) 126, Co. v. Nolan, 53 Tex. 139. 
 
 60 St. Rep. (N. Y.) 251; Citizens' 25. Casper v. Dry Dock, etc., R. 
 
 St. R. Co. V. Howard, 102 Tenn. Co., 67 St. Rep. (N. Y.) 805. And 
 
 475, 52 S. W. 864. Where a street see Moss v. Crimmins, 57 App. 
 
 railroad company has been licensed Div. (N. Y.) 587, 68 St. Rep. (N. 
 
 without a previous ascertainment Y.) 495. 
 
 in the prescribed manner of com- 26. Ehrisman v. E. Harrisburgh 
 
 •pensation for injuries to abutting li. Co., 4 Am. Electl. Cas. 486, 150 
 
 lands, the licensees, and not the Pa. St. 180. 
 municipality, are liable for the in- 
 
26o STREET SURFACE RAILROADS. 
 
 the usual and ordinary appliances for repairing its wires, for 
 a reasonable time, superior to the right of travelers in the 
 street/^ In case of its failure to repair however its' liability 
 to persons injured by defects which' the company should 
 remedy is no higher or greater than that which the law im- 
 poses upon the municipality itself; except perhaps as to 
 notice of the defect.^* Where the franchise or contract pro- 
 vides that the railroad company " shall pave the street in 
 and about the rails in a permanent manner and keep the 
 same in repair," the company is required to have the street 
 in such state as that the ordinary and expected travel of the 
 locality may pass with reasonable ease and safety. A street 
 in a city is not kept in repair if it is founderous or has in it 
 a trench into which carriages may go and harm follow. The 
 duty to keep in repair is to be performed at once on the 
 arising of occasion for repair, or the doing of it put off for a 
 reasonable time, if the nature of the occasion warrants delay. 
 In the latter case, the duty to keep in repair carries with it 
 the duty to guard the public against harm from the repair 
 being delayed. This may be done by placing barriers by 
 day, and barriers and lights by night, about the defective 
 place; or some temporary expedient, sufficient for the time, 
 may be used, such as a bridge over the opening or founder- 
 ous place. The railroad company is not required, under such 
 a contract, to keep the entire street in repair. The duty 
 applies however to that portion of the street within the two 
 rails of each track and for a space of at least twelve inches 
 
 27. Potter V. Scranton Tract. Ann. 327, 9 So. 122; Adams v. Citjr 
 Co., 6 Am. Electl. Cas. 95, 176 Pa. of Halifax, 13 N. S. L. R. (i Rus- 
 St- 271. sell & Gelder) 344; Mechanics- 
 
 28. Sanford v. Union Ry. Pass. burgh v. Meredith, 54 111. 84. 
 Co., 16 Pa. Super. Ct. 393; Cline Where the statute authorized a 
 V. Crescent City R. Co., 43 La. tramway company to enter into a 
 
REPAIRS. 261 
 
 t 
 
 irom the outside of each rail, and certainly so much of the 
 space between the tracks as was disturbed in the original 
 construction of the road.^s If the railroad company fail to 
 make the repairs, the city, being chargeable therefor, may 
 repair the defects; and if it proceed in the usual way and no 
 fraud is shown nor any facts to impeach the reasonableness 
 of its account for the expense thereof, it may recover the sum 
 actually expended in the work against the railroad com- 
 pany. 3° The railroad company is not liable however for dam- 
 ages resulting from the digging of a trench in the public 
 streets within its tracks by a city or private persons who are 
 bound to repair, but neglected to do so, leaving a depression 
 in the surface of the street.^' If the company is required to 
 keep the surface of the street for a certain distance outside 
 the rails of its track in good repair, it means for the distance 
 named outside of each outer rail.^^ It is not required to re- 
 place a pavement with a new, improved and more expensive 
 style of pavement whenever the city directs, under a pro- 
 vision in its charter that it shall " keep the streets in good 
 
 contract with the highway authori- the case last cited, it was held 
 ties to keep the portion of the that the company could not es- 
 street between its tracks in repair, cape liability by showing that 
 it is not liable for injuries to a the obstruction was caused by 
 person using that portion of the the wearing away or natural sink- " 
 road and suffering from its non- ing of the street from the rails, 
 repair. Alldred v. W. Met. Trams. 30. Mayor, etc., of N. Y. v. Sec- 
 Co. (C. A.), (1891) 2 Q. B. end Ave. R. Co., 102 N. Y. 572. 
 398. 7 N. E. 90s. 
 
 29. McMahon v. Second Ave. R. 3i- Citizens' Pass. Ry. Co. v. 
 
 Co., 75 N. Y. 231, 236; Memphis Ketchum, 122 Pa. St. 228, 15 Atl. 
 
 P. P. & R. Co. V. State, 87 Tenn. 733, 22 W. N. C. 419. 
 
 746, II S. W. 946; Philadelphia v. 32- People v. Fort St., etc., R. 
 
 Philadelphia City Pass. R. Co., 177 Co., 41 Mich. 413, 2 N. W. 188; 
 
 Pa. St. 382, 35 Atl. 379, 720; Groves McMahon v. Second Ave. R. Co., 
 
 v. Louisville Ry. Co., 58 S. W. 75 N. Y. 231, 236; Joyce v. Halifax 
 
 508, 22 Ky, Law Rep. 599. In St. R. Co., 24 N. S. 113. 
 
262 STREET SURFACE RAILROADS. 
 
 repair. "33 Where the company is required to so lay and 
 maintain its rails that vehicles can freely cross at any point, 
 it must fill up the surface of the streets along the outside of 
 the rails where it wears or wastes away, and is not a tres- 
 passer in so doing.3* Where a city ordinance provides for 
 the repavement of a certain street without any reference to 
 other streets intersecting the same whereon street railroad 
 tracks are laid, the city cannot recover from the company 
 operating such tracks for repairing done at the inter- 
 sections.^s 
 
 § 14. Repair of bridges. — A bridge is not a part of a. street, 
 nor does the term " pave " apply to the refiooring of a bridge 
 within an ordinance requiring it to pave the space between 
 the rails on any street being paved, particularly where bridges 
 are named several times as distinct from streets, avenues, and 
 
 33. Philadelphia v. Hestonville, merely the portion between the 
 M. & F. Pass. R. Co., 177 Pa. St. tracks. Philadelphia v. Thirteenth, 
 371. 35 Atl. 718. In the case cited etc., St. Pass. R. Co., 169 Pa. St. 
 it was also held that the charter 269, 36 W. N. C. 428, 33 Atl. 126. 
 provision that the company shall be Where the franchise is upon con- 
 subject to such ordinances as the dition that the company keep the 
 city council shall adopt in regard surface of the street inside its rails 
 to paving, repairing, and grading and six inches outside its tracks in 
 the streets, and to prevent obstruc- good repair, the company must re- 
 tions thereon, does not require it pair such streets within the mu- 
 to pave, repair, or grade the streets, nicipality as it is authorized to con- 
 but simply that it shall not ob- struct and operate by an act im- 
 struct the city in improving the posing no such duty. Duluth v. 
 streets. Provisions of street rail- Duluth St. R. Co., 60 Minn. 178, 
 way charters that the company 62 N. W. 262; Norristown v. M. 
 shall keep the streets occupied in St. Pass. R. Co., i Pa. Adv. Rep. 
 good order or repair, or shall keep 460, 23 Atl. 1060. 
 in constant repair that portion of 34. Baumgartner v. Mankato, 60 
 the street which they use and oc- Minn. 244, 62 N. W. 127. 
 cupy, have been held to require the 35. Philadelphia v. Philadelphia 
 company to keep in repair the City Pass. Ry. Co., 177 Pa. St. 379, 
 •whole width of the street, and not 35 Atl. 720. 
 
ENFORCING REPAIRS. 263 
 
 highways.3* And where a street railroad must cross one of 
 the canals of the State over which it has no right to build a 
 bridge, it may cross a bridge already built by the State, with 
 the permission of the State authorities, without thereby 
 making the bridge a part of its appliances, for a latent defect 
 in which it must be held responsible if discoverable in the 
 process of manufacture.^'' But if the charter of the company 
 required it to repair such portion of all bridges in the city as 
 are occupied by its tracks, and its tracks are laid upon a 
 bridge built over a canal and an injury is occasioned to a 
 third person by want of repairs upon the portion of the 
 bridge between the tracks, so that the city making the said 
 repairs had recovered against the canal proprietor therefor, 
 the latter, it was held in Massachusetts, might recover the 
 amount of the judgment against the railroad company, in- 
 cluding the cost of defending against the city's action, pro- 
 viding the action was defended at the request of the company, 
 or for its benefit, after notice to come in and defend.^* If by 
 contract with the city the company is bound to maintain the 
 bridges within a municipality upon which its tracks are laid 
 in good repair, the duty may be enforced by mandamus." 
 
 § 16. liability of company for neglect to repair; how enforced. — 
 A street surface railroad company is not discharged from 
 its duty to the public to keep its roadbed in repair by the 
 omission of the city to impose such obligation in the fran- 
 chise granted to the company, and it is liable directly to any 
 
 36. Cedar Rapids v. Cedar Rap- Y.) 888, revg. 45 id. 724, 18 N. Y. 
 ids, etc., R. Co., 108 Iowa, 406, 79 Supp. 649. 
 
 N W. 125. 3^- Proprietor of Locks v. Low- 
 
 37. Birmingham v. Rochester ell H. R. Co., 109 Mass. 221. 
 City & Brighton R. Co., 137 N. Y. 39- State ex rel. New Orleans v. 
 13, 32 N. E. 995, 49 St. Rep. (N. Canal & Claiborne St. R. Co., 44 
 
 La.' Ann. S26. 10 So. 940. 
 
264 STREET SURFACE RAILROADS. 
 
 person injured by reason of a defect arising from its negli- 
 gence.''" Where the duty of keeping in repair and repaying 
 a street is imposed by statute or by ordinance, city councils 
 may, after notice to the railroad company upon whom the 
 duty devolves, cause the street to be closed, the cars stopped, 
 and the street repaved at the expense of such company, and 
 the latter will not be entitled to set oflf injury to its business 
 by the stopping of the cars.*' If the company is under con- 
 tract with the city that in case of a change of grade its road 
 shall be changed to conform to such grade or improvement 
 upon notice from the borough engineer, at its expense, it 
 is liable to pay the expense of lowering its whole track, where 
 upon notice to make its road correspond with the change of 
 grade it merely lowers its rails, leaving the remainder of its 
 track in the same position that it was before.*^ If by reason 
 of the company's neglect and the city's liability also to keep 
 the street in repair, recovery is had against the city for an 
 injury occasioned by such neglect, the latter may recover 
 from the company the amount of the judgment so obtained 
 against it.''^ And in the absence of proof of fraud, reckless- 
 ness, or extravagance the city, making repairs itself which 
 the company should make, may recover the sum actually 
 expended for the work.'*'* It is not every defect within or 
 near its tracks in the public street for which the railroad com- 
 
 40. Laredo El. & Ry. Co. v. 41. Philadelphia v. Thirteenth, 
 
 Hamilton (Tex. Civ. App.), 56 S. etc., R. Co., 3 Pa. Dist. 468, 15 Pa. 
 
 W 998; Citizens' St. Ry. Co. v. Co. Ct. 291. 
 
 Ballard, 22 Ind. App. 151, 1 Rep. 42. McKeesport v. McKeesport 
 
 565, 52 N. E. 729; Ober v. Cres- Pass. R. Co., 158 Pa. St. 447, 27 
 
 cent City R. Co., 44 La. Ann. 1059, Atl. 1006. 
 
 52 Am. & Eng. R. Cas. 576, 11 So. 43. Brooklyn v. Brooklyn City 
 
 818; Bradwell v. Pittsburgh & W. Ry. Co., 47 N. Y. 475. 
 
 E. Pass. R. Co., 153 Pa. St. 105, 25 44. Mayor, etc. v. Second Ave. 
 
 Atl. 623. R. Co., 102 N. Y. 572, 7 N. E. 905. 
 
ENFORCING REPAIRS. 265 
 
 pany is liable; for illustration, if a switch be placed in a cross- 
 walk of the street in a proper manner, level with the grade 
 of the crosswalk and with its flange below the surface of the 
 crosswalk, which crosswalk the city, and not the company, 
 was bound to keep in repair, the company is not liable for an. 
 injury from a defect occasioned by a subsidence or wearing 
 away of a portion of the crosswalk leaving the switch prop- 
 erly located, and thus causing an obstruction/^ The com- 
 pany cannot avoid liability to answer to the city or to a party 
 injured for any damages occasioned by reason of the com- 
 pany's breach of its contract or duty to keep the street in 
 repair by leasing its road to another company and parting 
 with the possession and control of its line.** But a provi- 
 sion in the statute that companies incorporated thereunder 
 shall keep the portion of the street between and for a stated 
 distance outside of the rails in permanent repair, and that 
 upon their failure to do so it may be done by the State at 
 their expense, does not apply to a company chartered there- 
 under which is operating a street railroad line as the lessee 
 of another company chartered under a general railroad law 
 imposing no such obligation, even though the lessee may 
 have relaid tracks in streets in dififerent positions, or laid 
 down an additional track. ■*7 A municipality, in the perform- 
 ance of its duty to maintain the highways in a condition safe 
 for public travel, may take out cross-rods which project from 
 the track of a street surface railroad company and prevent 
 the proper paving of the street; and the company is not enti- 
 
 45. Lowery v. Brooklyn City & (N. Y.), 279, 54 St. Rep. (N. Y.) 
 N R. Co., 7(> N. Y. 28. 526, 24 N. Y. Supp. 1016. 
 
 46. Fort Worth St. R. Co. v. 47- Gilmore v. Utica, 131 N. Y. 
 Allen (Tex. Civ. App.), 39 S. W. 26, 42 St. Rep. (N. Y.) 501, 29 N. 
 125, I Am. Neg. Rep. 529; Durfee E. 841. 
 
 V. Johnstown, etc., R. Co., 71 Hun 
 
266 STREET SURFACE RAILROADS. 
 
 f 
 
 tied to a preliminary injunction restraining the city from 
 interfering with the restoration of such rods, merely because 
 the company apprehends that without them its tracks may 
 be spread in the spring time and traffic may be interfered with, 
 or become dangerous/* For a failure to keep its roadbed 
 in repair so that the usefulness of the street shall not be im- 
 paired in any manner and so that traffic across or along the 
 road shall not be obstructed, a street railroad company may 
 be indicted.*' Its duty to repair may also be enforced by 
 mandamus.^" If however there be an adequate legal remedy 
 to enforce the duty to repair, the writ of mandamus will not 
 issue. 5' The company is not liable to adjoining owners for 
 damages occasioned by cutting down its readbed and grad- 
 ing it to the established grade under permission of the city, 
 if the grading is done in a good and workmanlike manner 
 and confined wholly within the street.^* 
 
 § 16. Lessee's or transferee's liability. — Where a lease of a 
 city railroad is duly authorized by law, the lessee only is 
 liable for the negligence in its operation.ss But in the ab- 
 
 48. Schuylkill Tract. Co. v. Shen- 51- State ex rel. v. New Orleans, 
 andoah, 23 Pa. Co. Ct. 222, 9 Pa. etc., R. Co., 42 La. Ann. 138, 7 So. 
 Dist. jy. 226. 
 
 49. Memphis, P., P. & P. R. Co. 52. Inter-State Consol. R. T. Co. 
 V. State, 87 Tenn. 746, 11 S. W. v. Early (Kan.), 26 Pac. 422; Pratt 
 946; St. Louis V. Mo. Ry. Co., 87 v. Home St. R. Co., 49 Mo. App. 
 Mo. 151. 63. 
 
 so. State V. Paterson, etc., R. 53. Pinkerton v. Pa. Tract. 
 
 Co., 43 N. J. L. 505; State ex rel. Co., 193 Pa. St. 229, 44 Atl. 284; 
 
 V. New Orleans City Pass. Ry. Co., Stelk v. McNulta, 99 Fed. 138, 44 
 
 42 La. Ann. 550, 7 So. 606; State C. C. A. 357; Huntting v. Hart- 
 
 ex rel. v. Jacksonville St. R. Co., ford St. Ry. Co., 73 Conn. 179, 46 
 
 10 So. 590; State ex rel. v. St. Paul, Atl. 424; Mendoza v. Met. St. Ry. 
 
 etc., R. Co., 35 Minn. 131; 28 N. Co., 51 App. Div. (N. Y.) 430, 64 
 
 W. 3. St Rep. (N. Y.) 745; Reidman v. 
 
TRANSFEREE S LIABILITY. 
 
 267- 
 
 sence of a statutory provision therefor the lessor company 
 cannot exempt itself from liability to the public by the mere 
 contract of letting.^* 
 
 Brooklyn, etc., R. Co., 28 App. Div. 
 (N. Y.) 540, SI N. Y. Supp. (8s St. 
 Rep.) 196. 
 
 S4. Hanlan v. Phila. & W. C. 
 Turnpike Co., 122 Pa. St. lis, 40 W. 
 N. C. 520, 37 Atl. 943, 28 Pittsb. 
 L. J. (N. S.) 97- And see § iS- 
 
 Where the lease is authorized by 
 statute, the lessor takes by neces- 
 
 sary implication the benefit of a. 
 provision in the charter to the les- 
 sor that it shall be required to- 
 keep in repair only so much of 
 the street as is within its tracks. 
 Philadelphia v. Philadelphia City 
 Pass. Ry. Co., 177 Pa. St. 379, 35 
 Atl. 720; Mullen v. Phila. Tract.. 
 Co., 20 W. N. C, 203. 
 
268 STREET SURFACE RAILROADS. 
 
 CHAPTER V. 
 
 Operation; and herein of the Company's Rights and Duties in Rela- 
 tion to Individuals Other than Passengers and Employees. 
 
 Section i. Measure of care required generally. 
 
 2. Contractors and lessees. 
 
 3. Roadbed and tracks. 
 
 4. Cars and appliances. 
 
 5. Fenders and other guards. 
 
 6. Care of its electric wires. 
 
 7. In relation to telephone or other light current wires. 
 
 8. Lookout and signals. 
 
 g. Duties of motormen, gripmen, drivers, etc. 
 
 10. Compliance with statute, municipal, and other regulations. 
 
 11. Municipal liability. 
 
 12. Joint liability with other individuals. 
 
 13. Street crossings. 
 
 14. Route other than at street crossings. 
 
 15. Right of way. 
 
 16. Ambulances, hose-carts, etc. 
 
 17. Obstructing street with cars. 
 
 18. Rate of speed. 
 
 ig. Frightening animals. 
 
 20. Collision with steam train. 
 
 21. Collision with other car. 
 
 22. Collision with animals, or other vehicles. 
 
 23. Collision with persons on or near tracks. 
 
 24. Collision with workmen upon street. 
 
 Contributory Negligence. 
 
 25. Measure of care required generally. 
 
 26. Rule to stop, look, and listen. 
 
 27. Pedestrians. 
 
 28. Children. 
 
 2g. Infirm persons. 
 
 30. Bicyclist. 
 
 .31. Avoidable injury notwithstanding contributive negligence. 
 
 32. Attributable negligence. 
 
 Pleading and Practice. 
 
 33- Pleading. 
 34. Burden of proof. 
 
 35- Some recent rulings on evidence in actions for personal 
 injuries resulting from collision with street cars. 
 
CARE IN OPERATION. 269. 
 
 Sectiok 36. Questions for jury. 
 
 37. Instructions to jury. 
 
 38. Damages. 
 
 § 1. Measure of care required generally. — It is not the only 
 duty of the street surface railroad company to construct its 
 road properly. It must also maintain it suitably and operate 
 it carefully. The introduction of new forms of vehicles and 
 of new motive power in street railroads has not impaired the 
 right of foot and other passengers to safe passage at street 
 crossings; and indeed at other places along the street. In 
 operating their cars the street railroad companies have a 
 common right in the highway with other travelers, and in 
 the absence of any law or municipal ordinance regulating the 
 speed of their cars they must run at such speed and must be 
 kept in such control as not to interfere unreasonably with 
 the rights of others upon the highway.' The care required 
 of railroad companies is commensurate with the danger. 
 Where the wires carry a highly dangerous current of elec- 
 tricity the utmost degree of care in the construction, inspec- 
 tion, and repair of the wires, so as to keep them harmless at 
 places where persons are liable to come in contact with them, 
 is required.^ Adopting a propelHng power increasing the 
 
 1. Lawler v. Hartford St. R. Co., was held that the owner of such 
 72 Conn. 74, 43 Atl. S4S; Gilmore wires is chargeable with negli- 
 V. Federal St. & P. V. Pass. R. gence in stringing them over a 
 Co., 153 Pa. St. 31, 31 W. N. C. bridge so near the top of it that 
 S07, 23 Pittsb. L. J. (N. S.) 438, it is impossible to make repairs 
 25 Atl. 651; Cincinnati St. R. Co. on the bridge without coming in 
 V. Snell, 54 Ohio St. 197, 43 N. E. contact with them. Macon v. 
 207, 32 L. R. A. 276, 35 Ohio L. Paducah St. Ry. Co. (Ky.), 7 
 J. 140; Goldrick v. Union R. Co., Am. Electl. Cas. 630, 62 S. 
 20 R. I. 128, 37 Atl. 63s, 2 Am. W. 496. Held, error to instruct 
 Neg. Rep. 647. the jury that ordinary negligence 
 
 2. Perham v. Portland Gen. El. is the want of such care " as is 
 Co., 33 Oreg. 451, S3 Pac. 14, 40 commonly exercised by persons 
 L. R. A. 799. In the case cited it of ordinarily prudent habits placed 
 
J2/0 
 
 STREET SURFACE RAILROADS. 
 
 hazard of persons in the rightful use of tfie street, the 
 street railroad company is bound to exercise a degree of care 
 
 under like circumstances, and that 
 gross negligence is either an inten- 
 tional wrong or such a reckless 
 disregard of security and the right 
 as to imply bad faith." Id. 
 Such companies, maintaining poles 
 and electric wires in the public 
 streets of a city, are bound to 
 "know the dangers that may natu- 
 rally be caused by such use of 
 the streets, and to guard against 
 the same by the exercise of all the 
 foresight and caution which can 
 be reasonably expected of ordi- 
 nary men under such circum- 
 stances. Denver v. Sherret (C. C. 
 App. 8th C), 88 Fed. 226, 60 U. 
 S. App. 104, 31 C. C. A. 499, 2 
 Denver Leg. Adv. 153. But the 
 duty does not extend to the mak- 
 ing of such examination of them 
 as will be effectual to discover 
 decay which may have taken place 
 so as to render the poles unsafe. 
 Id.; Western Union Tel. Co. v. 
 State, Nelson, 6 Am. Electl. Cas. 
 210, 82 Md. 293, 31 L. R. A. S72, 
 32 Atl. 763. And see Haynes v. 
 Raleigh Gas Co., 114 N. C. 203, 
 26 L. R. A. 810; City El. St. R. 
 Co. V. Conery, 61 Ark. 381, 31 L. 
 R. A. 570, 3 Am. & Eng. R. Cas. 
 (N. S.) 36s, 33 S. W. 420; Giraudi 
 V. Improvement Co., 107 Cal. 120, 
 28 L. R. A. 596; Siek v. Toledo 
 Consol. St. R. Co., 16 Ohio C. C. 
 393, 9 O. C. D. SI- The degree 
 of care required in operating an 
 electric car in a public street is 
 proportionate to the increased 
 danger arising from the use of 
 electricity. Thompson v. Salt Lake 
 Rapid Transit Co., 16 Utah, 281, 
 
 52 Pac. 92, 40 L. R. A. 172, ID Am. 
 
 6 Eng. R. Cas. (N. S.) 563; 
 Dougherty v. Mo. Ry. Co., 97 Mo. 
 647, 8 S. W. 900, IS West. Rep. 
 23s; Penny v. Rochester R. Co., 
 
 7 App. Div. (N. Y.) S95, 74 St. 
 Rep. (N. y.) 732, 40 N. Y. Supp. 
 172. 
 
 " The degree of care in the man- 
 agement of its cars, exacted of a 
 street railroad company using 
 electricity as a motive power, and 
 traversing the streets of a popu- 
 lous city, where danger to pedes- 
 trians is to be constantly guarded 
 against, is not less than that re- 
 quired of the company to its pas- 
 sengers." 7 App. Div. (N. Y.) 
 602; National Tel. Co. v. Baker, 2 
 Ch. 186, 68 L. T. Rep. (N. S.) 283, 
 47 Alb. L. J. 411; Larson v. Cen- 
 tral R. Co., 56 111. App. 263; God- 
 frey v. Streator R. Co., so id. 378- 
 
 A boy twelve years old came in 
 contact with a live wire which 
 hung from one of the posts used 
 to support defendant's wires reach- 
 ing nearly to the ground in a 
 street, and was severely injured by 
 an electric current. It was held 
 that persons using electricity for 
 lighting, propelling cars, or other 
 business, must exercise the highest 
 degree of care for the protection 
 of all persons in all places where 
 such persons have a right to be. 
 And upon testimony that plaintiff 
 seized the wire after being warned 
 of the danger, it was further held, 
 that whether or not this was a fact, 
 and if it were, the question of con- 
 tributory negligence was for the 
 jury to determine. Macon v. Pa- 
 
CARE IN OPERATION. 2/1 
 
 proportionate to the increase of the danger.^ But it is not 
 bound to adopt every improvement and to use every precau- 
 tion for the purpose of meeting an unforeseen occurrence and 
 preventing injuries to travelers upon the streets. The de- 
 gree of care it must exercise depends upon the hazards and 
 dangers which it may reasonably expect to encounter and 
 upon the consequences which may be expected to flow from, 
 its negligence. Railroad companies whose cars are drawn 
 by steam, at a high rate of speed, are held to the greatest 
 skill, care, and diligence in the manufacture of their cars and 
 engines, and in the management of their roads, because of 
 the great danger from their hazardous mode of conveyance 
 to human life in case of any negligence. But the same 
 degree of care and skill is not required from carriers of pas- 
 sengers by stage coaches; and, for the same reason, is not 
 required of carriers of passengers upon street cars drawn 
 by horses. The degree of care required in any case must 
 have reference to the subject-matter, and must be such only 
 as a man of ordinary prudence and capacity may be expected 
 to exercise in the same circumstances. In some cases this 
 rule will require the highest degree of care, and in others 
 much less.'* Great care is required of a cable car company 
 and a horse car company in the operation of their lines where 
 they are run parallel and within a few feet of each other.s 
 In fact, there is no fixed standard in the law by which the 
 
 ducah St. Ry. Co., 7 Am. Electl. Koehne v. N. Y. & Queens Co. 
 
 Cas. 63a; 62 S. W. 496. Ry. Co., 165 N. Y. 603; McKeown 
 
 3. Hall V. Ogden City R. Co., v. Cincinnati St. R. Co., 2 Ohio 
 13 Utah, 243, 44 Pac. 1046, 4 Am. Leg. N. 388; Buente v. Pittsb., etc., 
 & Eng. R. Cas. (N. S.) 17- Co., 2 Super. Ct. (Pa.) 185. 
 
 4. Unger v. Forty-second St., S- West Chicago St. R. Co. v. 
 etc., R. Co., 51 N. Y. 497, 501; Yund, 68 111. App. 609; afifd., 169 
 Steierle v. Union Ry. Co., 156 N. 111. 47, 48 N. E. 308. 
 
 Y. 68s, 70, SO N. E. 834j 4I9; 
 
2/2 STREET SURFACE RAILROADS. 
 
 court is enabled to arbitrarily say in every case what conduct 
 shall be considered reasonable and prudent, and what shall 
 constitute ordinary care, under any and all circumstances. 
 The terms " ordinary care," " reasonable prudence," and 
 such like terms, as applied to the conduct and aflfairs of men, 
 have a relative significance, and cannot be arbitrarily defined. 
 What may be deemed ordinary care in one case may, under 
 different surroundings and circumstances, be gross negli- 
 gence. The policy of the law has relegated the determina- 
 tion of such questions to the jury, under proper instructions 
 from the court. It is their province to know the special 
 circumstances and surroundings of each particular case, and 
 then say whether the conduct of the parties in that case was 
 such as would be expected of reasonable, prudent men, under 
 a similar state of affairs. When a given state of facts is such 
 that reasonable men may fairly differ upon the question as 
 to whether there was negligence or not, the determination 
 of the matter is for the jury. It is only where the facts are 
 such that all reasonable men must draw the same conclusion 
 from them that the question of negligence is ever considered 
 as one of law for the court.* But a presumption of negli- 
 gence arises from certain occurrences, as where the trolley 
 
 6. Per Mr. Justice Lamar, in see Gardner v. Mich. Cent. R. 
 
 Grand Trunk R. Co. v. Ives, 144 Co., 150 U. S. 361, Z7 L. Ed. iiio, 
 
 U. S. 408, z(> L. Ed. 48s, 489, 14 Sup. Ct. Rep. 144; M'Leod v. 
 
 citing New Jersey R., etc., Co. v. Chicago, etc., Ry. Co., 104 Iowa 
 
 Pollard, 89 U. S. (22 Wall.) 341, (73 N. W.) 139; Pollard v. Maine, 
 
 22 L. Ed. 877; Thompson v. Flint etc., R. Co., 87 Me. 61, 32 Atl. 
 
 & P. M. R. Co., 57 Mich. 300; 739; O'Mellia v. Kansas City, etc., 
 
 Gaynor v. Old Colony & N. R., Ry. Co., 115 Mo. 221, 21 S. W. 
 
 100 Mass. 208, 212; Marietta & 507; Hall v. Ogden City Ry. Co., 
 
 C. R. Co. V. Pixley, 24 Ohio St. 6 Am. Electl. Cas. 598, 603, 13 
 
 654; Pennsylvania R. Co. v. Ogier, Utah, 243, 44 Pac. 1046, 4 Am. & 
 
 35 Pa. St. 60; Robinson v. Cone, Eng. R. Cas. (N. S.) 77; Stelk v. 
 
 22 Vt. 213; Jamison v. San Jose & McNulta (U. S. C. C. A. 111.), 99 
 
 S. C. R. Co., ss Cal. 593. And Fed. 138, 40 C. C. A. 357. 
 
CARE IN OPERATION. 
 
 273 
 
 wire falls into the street and thereby some one is injured/ 
 Such care however cannot be required of the company in the 
 operating of its cars as would absolutely prevent accident.* 
 But it must furnish reasonably skilled and competent men 
 to operate its cars and well-built cars with suitable appliances ; 
 and it is held to greater caution in the more thronged streets 
 of the densely populated portions of a city than in the subur- 
 ban streets;' and on a public road than on a private way.'° 
 It is immaterial whether the accident was occasioned by 
 the unusual speed of the car or other carelessness in manage- 
 ment, or in consequence of a defect in the pavement, where 
 the company is obliged to keep the pavement in repair." 
 To entitle one to recover for injuries occasioned in collision 
 with a street car, some negligence must be shown on the 
 part of the defendant which directly contributed to the injury 
 complained of." It owes the same afifirmative duty of rea- 
 
 7. O'Flaherty v. Nassau EI. R. 
 Co., 7 Am. Electl. Cas. 535. 34 
 App. Div. (N. Y.) 74, 54 N. Y. 
 Supp. (88 St. Rep.) 96; affd., 
 59 N. E. 1128, 165 N. Y. 624. 
 Or a span-wire used to support 
 the trolley wire breaks. Jones v. 
 Union R. Co., 18 App. Div. (N. 
 Y.) 268, 46 N. Y. Supp. (80 St. 
 Rep.) 321; Clark v. Nassau El. 
 R. Co., 9 App. Div. (N. Y.) 51, 
 41 N. Y. Supp. 78. 
 
 8. West Chicago St. R. Co. v. 
 Wizemann, 83 111. App. 402. 
 
 9. Todd V. Second Ave. Tract. 
 Co., 192 Pa. St. 587, 44 Atl. 337, 
 44 W. N. C. 523; Brown v. Wil- 
 mington City Ry. Co. (Super Ct.), 
 I Penn. (Del.) 332, 40 Atl. 936, 12 
 Am. & Eng. R. Cas. (N. S.) 439- 
 
 ID. Cooper V. Staten Isl. Mid- 
 18 
 
 land R. Co., 32 Misc. Rep. (N. Y.) 
 721, 66 N. Y. Supp. 308. 
 
 11. Kraut V. Frankford, etc., R. 
 Co., 160 Pa. St. 327, 28 Atl. 783, 
 34 W. N. C. 116, 49 Alb. L. J. 
 425; Mahnke v. New^ Orleans City 
 & L. R. Co. (La.), 29 So. 52. In 
 the case last cited the injury was 
 occasioned by stepping into a hole 
 in the street between the tracks 
 after leaving the car, where the 
 hole had been in existence and 
 visible for a week, and the cross- 
 ing was liable to have holes in it 
 from extraneous causes. 
 
 12. Siacik v. Northern Central 
 Ry. Co. (Md.), 48 Atl. 149; Jones 
 v. Third Ave. R. Co., 68 St. Rep. 
 (N. Y.) 832; Snider v. New Or- 
 leans & C. R. Co., 48 La. Ann. 
 I, 18 So. 695. 
 
2/4 STREET SURFACE RAILROADS. 
 
 sonable vigilance and care to a licensee on its tracks as to a 
 person there on business.'^ The number of cars that the 
 street railroad shall operate rests in the discretion of its 
 directors, subject however to review by the courts. But it 
 may be compelled by mandamus to operate its road although 
 it cannot get labor at the price or on the conditions it offers.'* 
 If the road be operated by cable, in which a system of sig- 
 naling to the central house to stop the engine in case of 
 accident is used, a conduit may be constructed by the com- 
 pany in its roadbed. '5 In the absence of authority for that 
 purpose, the president of the company cannot contract with 
 a third person to suspend the operation of the company's 
 cars, and for the cutting or elevation of its wires, so that such 
 party may move a large building upon and along its tracks 
 in order to cross the same.'^ 
 
 § 2. Contractors and lessees. — In the absence of express 
 legislative permission, a street railroad company cannot ab- 
 solve itself from liability for damages inflicted by the negli- 
 gent operation of the road by leasing it. Both lessor and 
 lessee are liable for the negligence of the transferee.'^ If 
 
 13- Wells V. Brooklyn Heights R. Co., 8s Ala. 6oo, 5 So. 353. It 
 
 R. Cfo., 34 Misc. Rep. (N. Y.) 44, is immaterial that a portion of a 
 
 68 N. Y. Supp. (102 St. Rep.) 305. street car line operated in cities 
 
 14. Matter of Loader, 14 Misc. and towns is upon land owned by 
 Rep. (N. Y.) 208, 3S N. Y. Supp. the railroad company so long as 
 996, 70 St. Rep. (N. Y.) 571. it constitutes a part of the road 
 
 15. Empire City Subway Co. v. authorized by the municipality. 
 Broadway, etc., R. Co., 87 Hun Fort Worth St. R. Co. v. Fergu- 
 (N. Y.), 279, 33 N. Y. Supp. lOSS, son, 9 Tex. Civ. App. 610, 29 S. 
 67 St. Rep. (N. Y.) 741. W. 61; Durfee v. Johnstown, G. 
 
 16. Millville Traction Co. v. & K. H. R. Co., 71 Hun (N. Y.), 
 Goodwin, 5 Am. Electl. Cas. 23, 279, 54 St. Rep. (N. Y.) 526, 24 
 53 N. J. Eq. (8 Dick.) 448, 32 Atl. N. Y. Supp. 1016; Railroad Co. v. 
 263. Hambleton, 40 Ohio St. 496, 14 Am. 
 
 17- Ricketts v. Birmingham St. & Eng. R. Cas. 126; Abbott v. 
 
ROADBED AND TRACKS. 2/5 
 
 the defect was occasioned by the lessor company prior to the 
 lease, the lessee cannot be liable.'* The railroad company 
 is liable although the injury occurred while the railroad was 
 being operated by a construction company under its contract 
 to operate the road satisfactorily for a period of time before 
 delivering it to the street railroad company. '^ Where how- 
 ever the lease of a street railroad is duly authorized by law, 
 the lessee only is liable for its negligence in operating the 
 road.^° Where an independent contractor makes improve- 
 ments on the tracks of a street railway company under a 
 contract to do that specific thing for a certain sum of money, 
 the company is not liable for the negligence of the con- 
 tractor's servants.^' 
 
 § 3. Roadbed and tracks. — Travelers on a street have a right 
 to use the railroad tracks laid along the street under author- 
 ity from the city, and are not trespassers in so doing; hence, 
 if one is injured through the railroad company's neglect to 
 keep its road and tracks running along the street in a good 
 condition, as by falling on a loose rail or protruding spike, 
 the company is liable." If it cut down the grade of the 
 
 Johnstown, etc., H. R. Co., 80 N. & Eng. R. Cas. 500, 7 Am. R. & 
 Y. 28; Braslin v. Somerville H. R. Corp. Rep. 48, 31 Pac. 411; Chat- 
 Co., 14s Mass. 64, 32 Am. & Eng. tanooga R. & C. R. Co. v. Liddell, 
 R. Cas. 406. 8s Ga. 482, 11 S. E. 853, 8 Ry. & 
 
 18. So held where the lessor left Corp. L. J. 296. 
 
 an obstruction, in laying its tracks 20. Pinkerton v. Pa. Tract. Co., 
 
 through a city street, upon which 193 Pa. St. 229, 44 Atl. 284. 
 
 the plaintiff fell and was injured, 21. Hauser v. Met. St. R. Co., 
 
 and subsequently leased its road to 27 Misc. Rep. (N. Y.) 538, 58 N. Y. 
 
 another corporation. Higgins v. Supp. 286. 
 
 Brooklyn, Q. C. & S. R. Co., 54 22. Cline v. Crescent City R. Co., 
 
 App. Div. (N. Y.) 69, 66 St. Rep. 43 La. Ann. 327, 26 Am. St. Rep. 
 
 (N. Y.) 334. 187, 9 So. 122; Wiley v. Smith, 25 
 
 19. Cogswell V. West St. & N. App. Div. (N. Y.) 351, 40 N. Y. 
 5. El. R. Co., 5 Wash. 46, 52 Am. Supp. (83 St. Rep.) 934; Doyle v. 
 
2/6 
 
 STREET SURFACE RAILROADS. 
 
 Street by the width of its track two feet, throwing the dirt 
 from the excavation upon the street upon either side of the 
 track, or throw up an embankment of snow, and allow it to 
 remain there several days and injury is occasioned thereby, 
 it is liable.^3 It must however have notice of such defect, or 
 the conditions must be such that it ought to have noticed it.^"* 
 
 New York, 58 App. Div. (N. Y.) 
 588, 69 N. Y. Supp. (103 St. Rep.) 
 120; Kelley v. Met. St. Ry. Co., 25 
 Misc. Rep. (N. Y.) 194, 54 N. Y. 
 Supp. (88 St. Rep.) 123. 
 
 23. Greeley v. Federal Street & 
 Pleasant Valley Pass. Ry. Co., 4 
 Am. Electl. Cas. 492, 153 Pa. St. 218. 
 It is not negligent for a street rail- 
 road company to lay its track in 
 a trench below the existing grade 
 pursuant to the direction of the 
 township supervisors made in view 
 of a contemplated lowering of the 
 grade. Miller v. Lebanon & H. 
 
 A. St. Ry. Co., 126 Pa. St. 190, 42 
 W. N. C. 274, 40 Atl. 413; Somer- 
 ville v. City R. of Poughkeepsie, 
 43 St. Rep. (N. Y.) 425, 17 N. Y. 
 Supp. 7ig; Friedman v. D. D., E. 
 
 B. & B. R. Co., 33 St. Rep. (N. 
 Y.) 649, II N. Y. Supp. 427; New- 
 port News & O. P. Ry. & El. Co. 
 v. Bradford, 3 Va. Sup. Ct. 15, 37 
 S. E. 807. As to the care of street 
 car companies in the removal of 
 snow, see McDonald v. Railroad 
 Co., 20 C. C. A. 322, 43 U. S. App. 
 79, 74 Fed. 104; Ovington v. Rail- 
 road Co., 163 Mass. 440, 40 N. E. 
 767; Markowitz v. D. D., etc., R. 
 Co., 12 Misc. Rep. (N. Y.) 412, 67 
 St. Rep. (N. Y.) 572, 33 N. Y. 
 Supp. 702; 3owen V. Railroad Co., 
 54 Mich. 496, 20 N. W. 559, 52 Am. 
 Rep. 822, 19 Am. & Eng. R. Cas. 
 131; Wallace v. Railroad Co., 58 
 
 Mich. 231, 24 N. W. 870; Mahoney 
 V. Met. R. Co., 104 Mass. 73; Lee 
 v. Union R. Co., 12 R. I. 383. If 
 by putting salt on a switch the 
 snow is melted and caused to cover 
 the switch from sight and plain- 
 tiflf's sleigh was overturned thereby 
 to his injury, the jury may find 
 the railroad company negligent. 
 Wooley v. Grand St., etc., R. Co., 
 83 N. Y. 121; Laughlin v. Railroad 
 Co., 62 Mich. 220, 28 N. W. 873; 
 Smith v. Railroad Co., 69 N. H. 
 504, 44 Atl. 133; Dixon V. Railroad 
 Co., TOO N. Y. 170, 3 N. E. 65. 
 If the snow storm is an extraordi- 
 nary one, the defendant is not 
 bound to make extraordinary ex- 
 ertions not to create obstructions 
 at street corners. Electric Co. v. 
 Bradford, supra. No common-law 
 duty rests upon a railroad com- 
 pany to keep the space within the 
 street between its tracks free from 
 ice and snow; and in the absence 
 of public regulations to the con- 
 trary, it is not liable for their pres- 
 ence to a person who slips and 
 falls thereon. Silberstein v. Hous- 
 ton, etc., Ry. Co., 117 N. Y. 293, 
 27 St. Rep. (N. Y.) 330, 22 N. E. 
 951- 
 
 24. Kelley v. Met St. Ry. Co., 
 25 Misc. Rep. (N. Y.) 194, S4 N. 
 Y. Supp. (88 St. Rep.) 173; Simon 
 v. Met. St. Ry. Co., 29 Misc. Rep. 
 (N. Y.) 126, 60 N. Y. Supp. 251- 
 
ROADBED AND TRACKS. 
 
 277 
 
 While it is its duty to know if the track is out of order and to 
 exercise active diligence in repairing any defect, still the 
 liability is based upon negligence, and the burden of proof is 
 upon the plaintiff to show negligence by which he was in- 
 jured. So where the street is in constant use by heavy 
 vehicles which could loosen the rail and there is no evidence 
 that until the plaintifif had stepped upon the rail (which he 
 claimed was loose and thus caused his injury) it had become 
 loose and that it was not loosened by the vehicles that passed 
 over it immediately before the plaintiff was injured, he cannot 
 recover.^5 He can recover however if it be shown that the 
 rail was loose and in a dangerous condition for at least a 
 week before the accident. ^^ A street railroad company con- 
 fronted by one of the canals of the State, over which it has 
 
 In the case last cited it was held 
 that the defense that the defendant 
 'Was not using the tracks at the 
 time of the injury was not avail- 
 able. And see Maloney v. Natick 
 & C. St. R. Co., 173 Mass. 587, 54- 
 N. E. 349; Gumpper v. Waterbury 
 Tract. Co., 68 Conn. 424, 36 Atl. 
 806; Casper v. D. D., etc., R. Co., 
 23 App. Div. (N. Y.) 451. 48 N. Y. 
 Supp. (82 St. Rep.) 352; on appeal 
 from retrial, 56 App- Div. (N. Y.) 
 Z,y2, 67 St. Rep. (N. Y.) 80s. 
 
 25. Casper Case, 56 App. Div. 
 (N. Y.), supra. And see Moss v. 
 Crimmins, 57 App. Div. (N. Y.) 
 587, 68 N. Y. Supp. 49S. A house 
 was claimed to be injured by the 
 bumping of railroad cars over a 
 switch eighty feet away. While it 
 appeared that cracks opened up in 
 the thirteen-inch brick wall of the 
 building, it did not appear that the 
 walls were out of plumb, or that 
 mortar came loose. Held, that 
 
 neither negligence nor nuisance 
 was shown. Starr v. North St. 
 Tract. Co., 193 Pa. St. S36, 44 Atl. 
 556. And see Hogan v. Railroad 
 Co., 150 Mo. 36; Isaackson v. Rail- 
 way Co., 75 Minn. 27; Wallbridge 
 V. Railway Co., 190 Pa. St. 274; 
 Sanders v. Railway Co., 147 Mo. 
 411. 
 
 26. Schnell v. Met. St. R. Co., 
 SO App. Div. (N. Y.) 616, 64 N. Y. 
 Supp. (98. St. Rep.) 67; Higgins v. 
 Brooklyn, Q. C. & S. R. Co., S4 
 App. Div. (N. Y.) 69, 66 N. Y. 
 Supp. 334. And see Donavan v. 
 Transit Co., 102 Cal. 24s, 36 Pac. 
 S16; Cowan V. Railroad Co., 84 
 Mich. S83, 48 N. W. 166; Zanger 
 V. Railroad Co., 87 Mich. 646, 49 
 N. W. 879; Thomas v. Traction 
 Co., 62 N. J. L. zf>, 42 Atl. 1061; 
 Lane v. City of Syracuse, 12 App. 
 Div. (N. Y.) 118, 42 N. Y. Supp. 
 219. 
 
2/8 STREET SURFACE RAILROADS. 
 
 no right to build a bridge, may cross a bridge thereover with 
 the permission of the State authorities, without becoming 
 hable for a latent defect in the bridge, as if it were a part of 
 the roadbed for which the company was responsible.^' In 
 New York, center-bearing rails in municipal streets are pro- 
 hibited.^* 
 
 § 4. Caxs and appliances. — The amount of care which should 
 be required of an electric street railroad in maintaining its 
 cars is that which would be suggested to careful, cautious, 
 prudent persons skilled in that business, by the facts and cir- 
 cumstances surrounding their use. Its duty to equip its 
 cars with safety appliances is not limited by the convenience 
 of the company, but includes the adoption of such as men of 
 average prudence would use under the same circumstances.^' 
 Although an appliance is furnished and put up by a manufac- 
 turer of high reputation, and is the best and strongest device 
 known at the time for keeping trolley wires in place, yet if 
 it break and injure a traveler upon the street, although the 
 
 27. Birmingham v. R., C. & B. tion which serves to guide the 
 R. Co., 137 N. Y. 13, 32 N. E. ggs. flange to the car wheel. Where in 
 
 28. The statute is as follows: any city, the duty of repairing and 
 " § 109. Center-bearing' rails repaying streets, as distinguished 
 
 prohibited — No street surface from the authorization of such pav- 
 railroad corporation shall hereafter ing, repairing and repaying, is by 
 lay down in the streets of any in- law yested in any local authority 
 corporated city or yillage of this other than the common council of 
 state what are known as ' center- such city, such other local author- 
 bearing' rails; but in all cases, ity shall be the local authority re- 
 whether in laying new track or in ferred to in this section. (As 
 replacing old rails, shall lay down amended by chap. 676 of 1892.)" 
 ' grooved ' or some other kind of 3 Heydecker's Gen'l Laws, 2d ed., 
 rail not ' center-bearing ' ap- p. 3323. 
 
 proved by the local authorities. 29. Warren v. Manchester St. 
 
 Such grooved or other rail shall Ry. Co. (N. H.), 47 Atl. 735; Dal- 
 
 be of such shape and so laid as to las, etc., Ry. Co. v. Randolph (Tex. 
 
 permit the paving stones to come Civ. App.), 5 Am. Electl. Cas. 
 
 in close contact with the projec- 379. 
 
CARS AND APPLIANCES. 
 
 279 
 
 break is a clean one, bright in color and appearance, and the 
 iron sound all through with no fault or defect in.it, yet from 
 the mere fact of the injury, the jury may find the railroad 
 company using it neghgent.^" It is not quite an accurate 
 statement of the law that if the appliance used were not the 
 best which skill and science had contrived and which were in 
 practical use, the company is negligent. It may be charge- 
 able with negligence to one injured from a failure to intro- 
 duce improvements in its apparatus which have been tested 
 and found materially to contribute to the safety of passengers, 
 and which it is reasonably practical to adopt.^' But there 
 must be evidence in the case that there are other, dififerent, 
 and superior appliances in use with which the defendant could 
 have equipped its car, and which would have tended to insure 
 greater safety. ^^ If the appliance were known to the com- 
 pany to be defective, alth6ugh it were the best in use, the 
 
 30. Uggla V. West End St. Ry. 
 Co., 4 Am. Electl. Cas. 389, 160 
 Mass. 351. 
 
 31. Roberts v. Spokane St. Ry. 
 Co., 23 Wash. 32s, 63 Pac. 506. 
 The use of an electric car with 
 brakes so defective that they do 
 not work well, and with a motor 
 so defective that the motorman re- 
 ceived a shock which delayed him 
 while trying to stop the car to 
 avoid an accident, constitutes neg- 
 ligence. Thompson v. Salt Lake 
 Rapid Transit Co., 16 Utah, 281, 
 52 Pac. 92, 40 L. R. A. 172, 10 
 Am. & Eng. R. Cas. (N. S.) 563- 
 Of course, to justify a recovery it 
 must appear that the accident could 
 have been avoided if the appliance 
 had been in good condition. Gan- 
 non v. New Orleans City & L. R. 
 
 Co., 48 La. Ann. 1002, 20 So. 223; 
 Little Rock Traction & El. Co. v. 
 Morrison (Ark.), 62 S. W. 1045; 
 Smith V. N. Y. & Harlem R. Co., 
 ig N. Y. 127; Dintruff v. Roches- 
 ter City & B. R. Co., 32 St. Rep. 
 (N. Y.) 730, 10 N. Y. Supp. 402; 
 afifd., 124 N. Y. 647, 27 N. E. 412. 
 In the case last cited it appeared 
 that the company had neglected a 
 usual precaution, one which was a 
 matter of common knowledge to 
 those familiar with the operation 
 of horse cars, to neutralize the 
 power of the front brakes in case 
 of the mischievous interference 
 with the rear handle by boys. 
 
 32. Wynn v. Central Park, etc., 
 Co., ID App. Div. (N. Y.) 13, 41 
 N. Y. Supp. S95, 75 St. Rep. (N. 
 Y.) 987. 
 
28o STREET SURJFACE RAILROADS. 
 
 company is liable for an injury occasioned from its use." 
 It is also liable for any carelessness in its use, as where its 
 employees engagpd in stringing feed wires allowed a wire 
 to lie in the bed of a gutter on a public street for a distance 
 of thirty feet or more and then raised it suddenly to a height 
 of about twenty feet without giving notice to passers-by of 
 such intended action; thereby causing the injury. 3* The 
 question of the right of the company to operate its cars by 
 other power than that specified in its charter or franchise 
 can only be raised by the government with whom its con- 
 tract was made, and is not subject to collateral attack in a 
 private action to recover for injuries. So where the cor- 
 poration was given authority to operate street cars by ani- 
 mal power and actually operated them by an underground 
 cable, in excess of its powers, it was held not to be liable 
 for a collision unless negligence were shown.^s In' actions 
 
 33. Musser v. Lancaster, etc., R. bring suit for a usurpation o£ cor- 
 Cc, 176 Pa. St. 621, 35 Atl. 206, porate powers, or because, ordi- 
 39 W. N. C. 37, 13 Lane Rev. 369. narily, the local authorities must 
 
 34. Devine v. Brooklyn Heights prosecute for an unlawful obstruc- 
 Ry. Co., 6 Am. Electl. Cas. 318, tion of the streets, not involving 
 I App. Div. (N. Y.) 237. the appropriation of private prop- 
 
 35. Chicago Gen. Ry. Co. v. erty. In the case of a corporation, 
 Chicago City Ry. Co., 186 111. 219, exercising a delegated authority 
 57 N. E. 822, afig. 87 111. App. 17; for the public benefit, the action- 
 Wilmington City Ry. Co. v. Rail- able quality of a private injury re- 
 way Co., 46 Atl. 12; Potter v. suiting therefrom may depend 
 Scranton Traction Co., 6 Am. upon the legislative will, and the 
 Electl. Cas. 95, 176 Pa. St. 271. aggrieved party may be without 
 But see H. R. T. Co. v. W. T. & remedy if the damage sustained is 
 R. Co., 13s N. Y. 393, 402, to the the result of the proper exercise 
 contrary; in the prevailing opinion of a power or privilege conferred 
 it is stated: "We cannot assent by law, and a right of action is 
 to the argument of the learned not given by express enactment, 
 counsel for the defendant that the This immunity from liability does 
 determination of this question is not, however, extend to acts which 
 immaterial, because the State are ultra vires, or which are equiva- 
 alone, by its attorney-general, can lent to a confiscation or condemna- 
 
fenders; guards. 281 
 
 for negligence against a street railroad company, as against 
 any other corporation or person, the rule is that where the 
 facts are as consistent with due care on the part of the 
 defendant as with want of it no recovery can be had.^^ 
 
 § 5. Fenders and other guards.— Until there was such gen- 
 eral use of fenders upon street railway cars as to make them 
 a common appliance for the safety of travelers upon the 
 street, a company would not be liable for failure to use them.^' 
 Nor is it negligence in itself for an electric car not to have a 
 headlight after nightfall where colored signal lights in front 
 and rear, required by city ordinance, are carried.^^ And, 
 although the city ordinance require all cars to be provided 
 with the " most improved modern pilot or safety guard," and 
 the requirement is not complied with, it cannot be invoked 
 in favor of one whose child is run over and killed by one of 
 such cars. The ordinance imposes a higher duty than the 
 law requires.39 if fenders are attached to both ends of a 
 street car, intended however to project only from the front 
 
 tion of the property rights of the of wire and was caught up and 
 
 citizen, unless provision is made dragged along the street by one of 
 
 for due compensation. If the sov- defendant's cars. McCaffrey v. 
 
 ereign power has never granted to Twenty-third St. R. Co., 47 Hun 
 
 the defendant the right to make (N. Y.), 404. 
 
 use of electricity in the traction of 37- Mullen v. Springfield St. R. 
 
 its cars in the streets of Albany, Co., 6 Am. Electl. Cas. 492, 164 
 
 it must respond to the plaintiff and Mass. 4S0, 41 N. E. 664; Hogan v. 
 
 to all others whose lawful pursuits Citizens' St. R. Co., 150 Mo. 36, 
 
 are invaded by its illegal proce- Si S. W. 473; West Chicago St. 
 
 dure." ^- Co. v. Sullivan, 165 111. 302, 46 
 
 36. Claflin V. Meyer, 75 N. Y. N. E. 234, aflfg. 64 111. App. 628. 
 
 260; Baulec v. N. Y., etc., R. Co., 38- McGee v. Consolidated St. 
 
 59 id. 356; French v. Buffalo, etc., R. Co., 5 Am. Electl. Cas. 462, 
 
 R. Co., 2 Abb. Ct. App. Dec. (N. 102 Mich. 107, 60 N. W. 293, 26 
 
 Y.) 196. So held where it ap- L. R. A. 300. 
 
 peared that plaintiff tripped while 39- Buenta v. Pittsb., A. & M. 
 
 crossing a city street upon a coil Tract. Co., 2 Super. Ct. (Pa.) 1S5, 
 
282 STREET SURFACE RAILROADS. 
 
 end, and the rear one becomes disarranged without the 
 knowledge of defendant's employees, and thereby an injury 
 is occasioned, the company is not liable.''" When the road- 
 bed is elevated above or depressed below the grade of other 
 parts of the street for any purpose, or when any obstruction 
 to travel is necessarily and temporarily placed in the street 
 by the railroad company, it should take reasonable care in 
 guarding its track and preventing injury. It is for the jury 
 to determine in the case whether the provision made for the 
 safety of the traveler was a reasonable one.*' If the ordi- 
 nance of a municipality requiring street cars operated by 
 electricity to be equipped with fenders, also provides that 
 the fender to be used must first be approved by the com- 
 mon council, the street railroad company is not bound, as 
 matter of law, to have fenders upon their cars immediately 
 after the approval by the common council; they are only 
 bound to exercise reasonable diligence in obtaining the 
 approved fenders and equipping the cars with them.'*''^ 
 
 40. Gargan v. West End St. Ry. operated by electricity and run 
 Co., 176 Mass. 106, 57 N. E. 217, upon a track to be provided with 
 49 L. R. A. 421. It has been held a fender, and also commanded that 
 in Ohio that where there is no " no railroad operated by electric- 
 allegation of negligence in failing ity shall use any fender or fenders, 
 to lower the life-guard, the admis- guard or guards, until the same 
 sion of evidence tending to show shall have been approved by the 
 that the life-guard with which the common council, which said ap- 
 car was equipped was not lowered proval shall be filed with the clerk 
 was error. Cleveland, P. & E. R. of the common council, and the 
 Co. V. Nixon, 21 Ohio C. C. 736, use of such fender or fenders, 
 12. O. C. D. 79. guard or guards, shall be deemed 
 
 41. Fox V. Wm. Horton, Jr., & a compliance with this provision." 
 Co. (N. J. Sup.), 45 Atl. 793; On the 25th November, 1896, the 
 Little Rock Traction & El. Cc. v. defendant applied to have a fender 
 Dunlap, 68 Ark. 291, 57 S. W. 938. selected by it approved. Its appli- 
 
 4iH. Piatt v. Albany Ry., 170 N. cation was referred to the com- 
 Y. 115. The ordinance passed Oc- mittee on railroads, which reported 
 tober 7, 189s, required every car thereon on the 17th May, 1897, in 
 
CARE OF ELECTRIC WIRES. 
 
 283 
 
 § 6. Care of its electric wires. — Electricity being a motive 
 power which common experience has taught is dangerous 
 to Hfe even when the utmost skill and prudence of best- 
 trained electricians are exercised, electric street railway com- 
 panies are bound to use extraordinary care in its manage- 
 ment, and are liable for slight neghgence. It is a subtle, 
 imponderable, death-dealing element or fluid; of its nature 
 or the laws governing it very little is known, even among 
 those few most advanced in the study of it; hence, in its 
 use the utmost caution must be exercised/"^ An electric 
 
 favor of granting the application. 
 The report was then adopted, and 
 the day after the defendant ordered 
 the fender, but the first lot was not 
 received until the i6th June, 1897, 
 after the accident happened by 
 which plaintifif's intestate was 
 killed; and an element of defend- 
 ant's negligence was claimed to be 
 the absence of the fender approved 
 by the common council. The 
 court charged that the company 
 had a reasonable time to place 
 fenders upon their cars after the 
 approval of the common council, 
 and left it to the jury to determine 
 whether or not reasonable dili- 
 gence after such approval had been 
 used to provide the fenders. The 
 defendant had requested a charge 
 that " the defendant was not bound 
 to have a fender on the car at the 
 time of the accident." The re- 
 quest was denied, and charge made 
 as above, and it was held error. 
 The court of review said: "The 
 court not only omitted to comply 
 with the request, but went further 
 and charged that the jury might 
 find whether the defendant had 
 used reasonable diligence in equip- 
 
 ping its cars with fenders after the 
 fender selected had been approved 
 by the common council, although 
 during the short interval that 
 elapsed between the approval and 
 the accident, the railroad company 
 had done everything which, so far 
 as it appears, it could have done 
 to procure fenders. This also was 
 reversible error, for it cast a bur- 
 den upon the defendant which the 
 law did not require it to bear. The 
 law required reasonable diligence, 
 but the charge, so far as the evi- 
 dence permits us to see, required 
 an impossibilityv" Id. 
 
 42. Denver Tramway Co. v. 
 Reid, 4 Am. Electl. Cas. 332, 339, 
 4 Colo. Ct. App. S3; Kankakee El. 
 Ry. Co. V. Whitemore, 4 Am. 
 Electl. Cas. 362, 45 111. App. 
 Mahoney v. San Francisco, 
 Ry. Co., 6 Am. Electl. Cas. 
 no Cal. 471; Cogswell v. West St., 
 etc., Ry. Co., 4 Am. Electl. Cas. 
 412, S Wash. 46; Perham v. The 
 Portland El. Co., 7 Am. Electl. 
 Cas. 487, 33 Oreg. 451. 
 
 Escape of electricity from a 
 street railway to the injury of a 
 horse being driven on a public 
 
 484; 
 etc., 
 
 4S7, 
 
284 
 
 STREET SURFACE RAILROADS. 
 
 street railway company must maintain its wires so that they 
 will not come in contact with one using the street. Never- 
 theless, one who leaves the street and climbs a pole support- 
 ing wires, without permission from or notice to the company 
 whose system he has thus entered upon, and is injured by 
 reason of the contact of one company's wire with the feed 
 wire of another company, can recover from neither. *3 And 
 
 street is presumptive proof of neg- 
 ligence in the operation of the rail- 
 road. Trenton Pass. Ry. Co. v. 
 Cooper, 7 Am. Electl. Cas. 444, 60 
 N. J. L. 219; Jones v. Union Ry. 
 Co., 7 Am. Electl. Cas. 447, 18 
 App. Div. (N. Y.) 267. 
 
 Where an accident occurred 
 from contact with an electric wire, 
 and an action was brought there- 
 for, it was held that evidence of 
 defective insulation for several 
 weeks, as shown by the wires 
 " spitting fire " should have been 
 received; that a person going law- 
 fully where electric wires are, while 
 bound to know generally the dan- 
 ger, has, unless the defective in- 
 sulation could have been seen with 
 diligence, the right to presume 
 that they are properly insulated. 
 Will V. Edison El. 111. Co. (Pa. 
 Sup.), 7 Am. Electl. Cas. 642. 
 
 43. Augusta Ry. Co. v. Andrews, 
 4 Am. Electl. Cas. 378, 89 Ga. 653; 
 Freeman v. Brooklyn Heights R. 
 Co., 54 App. Div. (N. Y.) 506, 66 
 N. Y. Supp. 1052. In the case last 
 cited it appeared that the injury 
 was occasioned to a boy who had 
 climbed upon a girder of an arch 
 bridge, along which the defend- 
 ant's trolley wire was strung, and 
 had caught hold of a guard wire 
 which in some manner had become 
 
 charged with electricity. The court 
 said: "The real question is, 
 whether the defendant owed the 
 plaintiff any active duty under the 
 circumstances. It is claimed by the 
 plaintiff that it was customary for 
 the boys in the neighborhood of 
 this bridge to walk over the gird- 
 ers, but in view of the fact that 
 it would be necessary to climb to 
 get upon them, that a perfectly 
 safe sidewalk had been constructed 
 for the accommodation of persons 
 on foot, and that the way over the 
 girders was not unobstructed, was 
 the duty imposed upon this de- 
 fendant, in the exercise of reason- 
 able care, to anticipate that its 
 wires, even if charged with electric- 
 ity, would be dangerous? They 
 were entirely out of the reach of 
 persons using the street and side- 
 walk in the ordinary and orderly 
 manner, and it was only when the 
 plaintiff had gone out of his way 
 and had climbed into a position of 
 danger, independently of the wires, 
 that he was exposed to contact 
 with them. We are of the opinion 
 that the defendant was not bound 
 to anticipate this danger, and es- 
 pecially so as the guard wire was 
 not designed for the purpose of 
 carrying a current of electricity, 
 but was for the purpose of protect- 
 
CARE OF ELECTRIC WIRES. 
 
 285 
 
 if the usual, ordinary, and safe method of insulating the wire 
 is used to protect the pubUc from injury and the insulation 
 was intact up to the time that one receiving an injury there- 
 from takes hold of the wire, he cannot recover for the injury.'*'* 
 
 ing the wire which did carry the 
 current, and the usual precautions, 
 by way of inspection, had been 
 taken, to see that there was no 
 leakage of the current from the 
 wire to the guard wire." (Pages 
 598, 599- ) 
 
 In a recent case in Oregon it 
 appeared that an electric light com- 
 pany had, by permission, strung 
 its wires across the top of a bridge 
 belonging to a railroad company 
 and the wires were apparently, but 
 not actually, perfectly insulated and 
 were not placed so that servants 
 of the railroad company could not 
 come in contact with them, and 
 the electric light company had not 
 informed the railroad company that 
 it was dangerous to touch the 
 wires. Held, that the electric light 
 company was liable for the death 
 of an employee of the railroad 
 company who was repairing the 
 bridge, and in ignorance of the 
 danger of his act on account of 
 the apparent perfect insulation, 
 touched two wires at once and was 
 instantly killed. Perham v. The 
 Portland El. Co., 7 Am. Electl. 
 Cas. 487, 33 Oreg. 451. 
 
 Plaintiiif, walking in a street and 
 thrown down twice about the time 
 and place where defendant's trol- 
 ley wire, broken, had fallen, is en- 
 titled to have the jury say whether 
 her fall was occasioned by shock 
 from the wire. It was also held 
 that testimony that the company 
 in the construction of its trolley 
 
 wire and the supports for the same 
 used the best material in the mar- 
 ket and that in common use, and 
 examined them once in every four 
 days and examined the wire which 
 broke and its supports the day be- 
 fore the accident, does not neces- 
 sarily overcome the presumption 
 of negligence; first, because it 
 came from interested witnesses, 
 employees of the company charged 
 with the duty of inspection, whom 
 the jury were not bound to believe; 
 and second, because there was evi- 
 dence to warrant the finding that 
 the device employed by the com- 
 pany, called the brake-system, de- 
 signed to throw the current off the 
 wire the moment it came in con- 
 tact with the ground, was either not 
 properly adjusted or was not in 
 proper working order. O' Flaherty 
 v. Nassau El. R. Co., 34 App. Div. 
 (N. Y.) 74, 54 N. Y. Supp. (88 St. 
 Rep.) 96; aflfd., 59 N. E. 1128, 165 
 N. Y. 624, 7 Am. Electl. Cas. 535. 
 44. Tri-City Ry. Co. v. Killeen, 
 92 111. App. 57. And see Gross v. 
 South Chicago City R. Co.,, 73 111. 
 App. 217, 30 Chic. Leg. N. 186. 
 In the case cited it appeared that 
 the person injured was riding for 
 his own convenience on the top 
 of a box car on a railroad crossing 
 the line of a street railroad main- 
 taining a trolley wire at a height 
 high enough to admit of the pas- 
 sage of persons standing on ordi- 
 nary cars or of a person sitting on 
 a high car. But the company is 
 
286 STREET SURFACE RAILROADS. 
 
 His ignorance of the danger attending contact with an elec- 
 tric wire in no way excuses his fault in failing to exercise care 
 in approaching the same.*' Railroad commissioners have no 
 arbitrary power to require electric street railrqad wires to be 
 suspended at any particular number of feet above the road- 
 bed of a steam railroad crossed by such wires, unless it ap- 
 pears that a less height is insufficient to prevent danger to 
 the steam road's employees; and where the latter cut the 
 wires, when it causes great loss to the street railroad com- 
 pany and great danger to human life, the steam railroad com- 
 pany is a trespasser, ab initio, and liable for all damages sus- 
 tained by the street railroad company/^ 
 
 § 7. In relation to telephone or other light current wires. — 
 The law under which telephone and telegraph companies are 
 organized grants them no co-ordinate rights with travelers 
 tipon the public highway, but assigns them to a secondary 
 and subordinate position. They are allowed to construct 
 their lines along and upon the public roads and streets; 
 provided however they do not interfere with public travel 
 thereon. The primary and dominant purpose of a street, as 
 "has been seen, is for public passage ; and any appropriation of 
 it by legislative sanction to other objects must be deemed 
 to be in subordination to this use unless the contrary intent 
 is clearly expressed. Therefore, such a company has no 
 right of action against an electric street railroad company 
 subsequently constructing and operating its road upon the 
 
 negligent where it so places one leans & N. E. R. Co., 49 La. Ann. 
 
 of its guy wires over the track of a 86, 21 So. 153. 
 
 steam railroad as not to aflford suf- 45. Danville Street Car Co. v. 
 
 ficient space for the latter's trains Watkins, 97 Va. 713, 34 S. E. 884. 
 
 to easily and conveniently pass 46. Saginaw Union St. R. Co. 
 
 without danger to its servants and v. Michigan C. R. Co., 91 Mich, 
 
 •employees. Earslow v. New Or- 657, 52 N. W. 49. 
 
CARE OF ELECTRIC WIRES. 
 
 287 
 
 same highways because of special injuries sustained by the 
 derangement of the electric current upon its lines of wire by 
 means of induction. The inconvenience or loss which it 
 may suffer from the adoption of a mode of locomotion au- 
 thorized by law, carefully and successfully employed, and 
 which does not destroy or impair the usefulness of a street 
 as a public highway, is not sufficient cause for a recovery 
 unless there is some statute which makes it actionable.*^ The 
 
 47. H. R. T. Co. V. W. T. & 
 R. Co., 4 Am. Electl. Cas. 275, 135 
 N. Y. 393, 407, 17 L. R. A. 67s, 
 48 St. Rep. (N. Y.) 417, 32 N. E. 
 148, 31 Am. St. Rep. 838, 6 Am. 
 R. & Corp. Rep. 619. The court 
 said: "It seems to be indis- 
 pensable to the successful prose- 
 cution of the plaintifif's business, 
 that it should make use of an ex- 
 ceedingly weak and sensitive cur- 
 rent of electricity. By a law of 
 electric force, not clearly defined 
 or understood, the transmission of 
 a powerful current, such as the de- 
 fendant must use to supply mo- 
 tion to its cars, along a line of 
 wire parallel with and in close 
 proximity to the plaintiff's wires, 
 induces upon the latter an addi- 
 tional current which renders the 
 operation of the plaintiflf's tele- 
 phones at all times difficult, and 
 sometimes impracticable. It is 
 found that this disturbance cannot 
 be avoided by the defendant with- 
 out a complete change of the sys- 
 tem adopted, and the use of mo- 
 tors which are more expensive, 
 more dangerous and less useful 
 and efficient. * * * To render 
 their respective appliances avail- 
 able, both parties must have a re- 
 turn electric current and both use 
 
 the earth for that purpose. 
 * * * The defendant allows the 
 electric current used for the move- 
 ment of its cars to escape or dis- 
 charge, at least in part, directly 
 from the wires into the ground, 
 from whence it spreads or flows, 
 by reason of the conductivity of the 
 earth, upon plaintiff's grounded 
 wires, and the most serious loss 
 which the plaintiflf sustains results 
 from this cause, which is scientifi- 
 cally known as conduction. * * * 
 It (the plaintiff) has accorded to 
 the public, by the manner in which 
 it has elected to use its franchise, 
 the unrestricted right of passage, 
 and it cannot question the form 
 in which such right shall be en- 
 joyed So long as it is of lawful 
 origin and is utilized with proper 
 care and skill. The defendant's 
 mode of conveyance of passengers 
 is of this character, and the plain- 
 tiff can no more justly complain 
 of its loss from this source than 
 it could if, by the jarring of loaded 
 vehicles passing up and down 
 Broadway, its delicate and sensi- 
 tive instruments were displaced 
 and their beneficial use impaired 
 or destroyed." (Pages 408-412.) 
 
 And see Bell Tel. Co. v. Mon- 
 treal St. R. Co. (Can.), Rap. Jud. 
 
288 STREET SURFACE RAILROADS. 
 
 very nature of an electric railroad operated on the single 
 trolley plan requires the trolley wire to be a certain distance 
 from the rails, and to be under all other wires crossing the 
 line of the railroad. Therefore, the wires of telegraph and 
 telephone companies must be placed at such height as not 
 to interfere with the trolley wire. An electric, passenger 
 railroad company is bound to use reasonable care and pru- 
 dence in placing its wires and poles, and to adopt all ordinary 
 and usual appliances and methods to prevent contact be- 
 tween its trolley and feed wires and the wires of a telephone 
 company stretched along or across the same highway. And 
 it is the duty of the telephone or telegraph company using 
 the public highway for its poles and wires to so construct 
 and maintain its line as not to incommode the public use 
 of the highway for purposes of travel and transportation, 
 whether by ordinary vehicles, horses, railways, or electric 
 passenger railways, lawfully used on the same. Hence, if 
 there be danger of actual contact of the wires of the two 
 companies, the telephone or telegraph company must stretch 
 their wires upon higher poles, or, by insulation, prevent the 
 contact, notwithstanding its prior occupancy of the street."*^ 
 
 Quebec, 6 Br. 223; Cincinnati Inc. the employees of the street rail- 
 Plane R. Co. V. City, etc., Tele- road company, the telephone corn- 
 graph Assn., 48 Ohio St. 390, 12 pany is not liable because it was 
 L. R. A. 534, 46 Am. & Eng. R. occasioned by one of its wires 
 Cas. 588, 26 Ohio L. J. 8, 27 N. which had become heavily charged 
 E. 890, 10 Ry. & Corp. L. J. 82, with electricity in consequence of 
 44 Alb. L. J. 86; Cumberland its breaking and falling upon a 
 Telegraph & Telephone Co. v. trolley wire erected after the tele- 
 United El. R. Co., 93 Tenn. 492, phone wires were placed. Morgan 
 29 S. W. 104, ID Am. R. & Corp. v. Bell Tel. Co. (Can.), Rap. Jud. 
 Rep. 549, 27 L. R. A. 236; Na- Quebec, 11 C. S. 103. 
 tional Tel. Co. v. Baker, 68 Law 48. Central, etc.. Supply Co. v. 
 Times Rep. 683, 2 Ch. 186, 47 Wilkesbarre, etc., Ry. Co., 4 Am. 
 Alb. L. J. 411. If an injury is Elect!. Cas. 260, 11 Pa. Co. Ct. 
 due solely to the negligence of 417. 
 
CARE OF ELECTRIC WIRES. 289 
 
 Therefore, an electric street railroad company is not required 
 to exercise the utmost degree of care and diligence to keep 
 a feed wire placed several feet above the heads of travelers 
 insulated so as to prevent the communication of electricity 
 to a lineman of a telephone company who draws the tele- 
 phone wire over the upper side of such feed wire.''' And 
 where the telephone company rents the use of the street rail- 
 road company's poles and assumes all risk for damages to its 
 employees, an employee of the telephone company injured 
 while repairing a leak caused by the railroad company's 
 guard wire settling so as to come in contact with the trolley 
 wire whenever a car passed beneath (it not appearing that 
 the telephone company had the right to repair the railroad 
 company's wires), cannot recover against the railroad com- 
 pany. 5° The municipality may provide by ordinance how 
 the various electric wires within its pubhc streets shall be 
 protected; and if the ordinance require guard wires for elec- 
 tric wires " wherever it shall be necessary to cross " other 
 electric wires, it applies to crossing wires already erected, 
 since it provides a remedy for an existing evil; and the elec- 
 tric railroad company using strong currents of electricity on 
 wires which are not insulated, which directly cross electric 
 wires which are insulated, may be compelled to place guard 
 wires where they will prevent the contact of the telephone 
 and railway wires in case of the breaking of poles or the 
 falling of wires on account of storms, or otherwise.^' And 
 
 49. Calumet El.' St. R. Co. v. 57 N. W. 970. And see Rowe v. 
 Grosse, 70 111. App. .^81. N; Y. & N. J. Tel. Co. (N. J.), 48 
 
 50. Sias V. Lowell, L. & H. St. Atl. 523; Block v. Milwaukee St. 
 Ry. Co. (Mass.), 60 N. E. 974- Ry- Co., 89 Wis. 371, 27 L. R. A. 
 
 51. State, Wisconsin Tel. Co. v. 365, 61 N. W. iioi, 46 Am. St. 
 Janesville St. R. Co., 87 Wis. 72, , Rep. 849, 11 Am. R. & Corp. Rep. 
 9 Am. R. & Corp. Rep. 319. 4i 540, i Am. & Eng. R. Cas. (N. S.) 
 Am. St. Rep. 23, 22 L. R. A. 759. 329- 
 
 19 
 
290 STREET SURFACE RAILROADS. 
 
 it may be stated generally that even without an Ordinance 
 prescribing it, the railroad company in constructing its road 
 and erecting its wires in a street in which a telephone com- 
 pany has its wires is bound to use guard wires or other 
 known and recognized reasonable precautions and appli- 
 ances, if the result can be so attained, which will prevent con- 
 tact between its wires and those of the telephone company 
 and consequent injury to the latter therefrom.s^ A tele- 
 phone company and an electric railroad company may, and 
 at the request of the municipal authorities should, use the 
 same poles when such use is not necessarily attended with 
 increased danger.'^ A telephone lineman has the right to 
 assume that an electric railroad company has used suitable 
 and safe appliances to prevent the escape of electricity from 
 its line of trolley wires to the guy wires ; but such right does 
 not excuse him from exercising proper care to prevent in- 
 jury when he knows as a fact that the wires are not safe.'* 
 
 52. Central Pa. Tel. & S. Co. v. 53. Bergen v. So. New England 
 
 Wilkes-Barre, etc., R. Co. (Pa. C. Tel. Co., 70 Conn. 54, 39 L. R. A. 
 
 C), 6 Kulp (Pa.), 383, II Pa. Co. 192, 38 Atl. 888. 
 
 Ct. 417, I Pa. Dist. 628. Where 54. Bergen Case, supra; Newark 
 
 death was occasioned by the El. Light & Power Co. v. Gard- 
 
 breaking of an electric wire, the ner (C. C. App. 3d C), 78 Fed. 
 
 negligence claimed was that the 74, 39 U. S. App. 416, 23 C. C. A. 
 
 wire was originally strung on poles 649; Cumberland Tel. & Tel. Co. 
 
 at a distance of 160 feet apart and v. United El. R. Co., 93 Tenn. 
 
 was not at all secured by inter- 492, 29 S. W. 104, 27 L. R. A. 236, 
 
 mediate fastenings, so as to be 10 Am. R. & Corp. Rep. 549. In 
 
 taut enough to prevent vibrations a recent case it appeared that a 
 
 and frequent rubbings with the lineman of the telephone company 
 
 guy wire, the contact with which was sent to ascertain the extent 
 
 caused the severance of the wire and nature of trouble with tele- 
 
 by heat and its fall, it was held phone wires, caused by a charge 
 
 that the question of the defend- of electricity transmitted from the 
 
 ant's negligence was for the jury. wires of an electric railway com- 
 
 Gordon v. Ashley (N. Y. Sup.), pany; he voluntarily ascended the 
 
 34 Misc. Rep. (N. Y.) 743, 70 N. railway company's pole and was 
 
 Y. Supp. 1038. killed by contact with the charged 
 
CARE OF ELECTRIC WIRES. 
 
 291 
 
 It may be stated generally that the escape of electricity from 
 wires suspended over streets through any other wires that 
 may come in contact with them must b§ prevented, so far 
 as it can be done, by the exercise of reasonable care and 
 diligence. The care must be commensurate with the great 
 danger that exists, although the owners of the wires are not 
 insurers against accident." When a telephone company and 
 an electric railroad company both maintain their wires with 
 knowledge of the danger caused by the want of guard wires 
 between the trolley wire and the telephone wire insecurely 
 suspended over it, they are jointly liable for negligence.'^ 
 
 -wire; had he ascended the tele- 
 phone company's pole, thirty feet 
 •distant, he could have avoided 
 contact with the wires of the rail- 
 road company. In the action 
 against both companies for his 
 death, the court instructed the jury 
 as follows: " If the deceased had 
 Tio knowledge, either actual or 
 from information, that the span 
 wires of the street railroad com- 
 pany at the point in controversy 
 and strung to this pole were not 
 properly insulated and reasonably 
 safe, then he had a right to pre- 
 sume they were properly and 
 ■safely insulated, unless the want 
 of insulation at all or defective in- 
 sulation was so open and obvious 
 that he ought in the exercise of 
 •ordinary and reasonable care and 
 caution to have so known." 
 
 The charge was held erroneous 
 because it relieved the employee 
 of the duty to exercise active dili- 
 gence for his own safety in an oc- 
 cupation peculiarly hazardous, and 
 where the employee had the better 
 opportunity of discovering and 
 avoiding the danger. It appeared 
 
 that the lineman was also an in- 
 spector, and that the telephone 
 company had entered into a con- 
 tract with the railway company 
 to the effect that either company 
 might use the poles of the other 
 in case of necessity or expediency. 
 It was also held that whether the 
 magnetic bell and test set fur- 
 nished to a lineman by the tele- 
 phone company were useful only 
 in discovering electrical disturb- 
 ances on the line and were not de- 
 signed to test the insulators and 
 defects therein or their location, 
 was a question for the jury. Jack- 
 son & S. St. R. Co. v. Simmon 
 (Sup. Ct. Tenn.), 23 Am. & Eng. 
 R. Cas. (N. S.) 236, 64 S. W. 705. 
 
 55. City El. St. R. Co. v. Conery, 
 6 Am. Electl. Cas. 217, 61 Ark. 
 381, 31 L. R. A. 570, 3 Am. & Eng. 
 R. Cas. (N. S.) 36s, 33 S. W. 426; 
 Uggla V. West End R. Co., 160 
 Mass. 351. 
 
 56. McKay v. So. Bell Tel. & 
 Teleg. Co., Ill Ala. 337, 31 L. R. 
 A. 589, 19 So. 69s, 3 Am. & Eng. 
 R. Cas. (N. S.) 605. It appeared 
 in the case cited that a broken 
 
292 STREET SURFACE RAILROADS. 
 
 The railroad company is charged with the duty of observing 
 at least ordinary diligence, not only to prevent the contact, 
 but also to discover and prevent its continuance, even when 
 occasioned by the negligence of others, including that cor- 
 poration whose employees are thus exposed to danger.s' 
 The violation of a city ordinance imposing a penalty on dan- 
 gerous drivmg cannot preclude a recovery against a tele- 
 phone company for damages because of injury to the horse 
 from contact with a wire suspended in the street, without 
 proof that such driving contributed to the injury. . The 
 driver has the right to assume that the street was free from 
 any dangerous obstruction. 5* The provision of the Ohio 
 Act (83 Ohio L. 143) forbidding the use of uninsulated 
 wires, does not affect the use of wires in city streets for con- 
 ducting electricity to operate street railroad cars.^' 
 
 § 8. Lookout and signals. — It is the duty of motormen, 
 gripmen, and drivers operating street railroad cars in 
 crowded city streets to be on the lookout, to employ all 
 
 telephone wire was permitted to 798, 5 Am. & Eng. R. Cas. (N. S.) 
 
 remain suspended across the 1, 25 S. E. 377. A telephone com- 
 
 trolley wire. And see United E. pany is not, as matter of law, neg- 
 
 Ry. Co. V. Shelton, 3 Am. Electl. ligent in failing to remove a rusted 
 
 Cas. 477, 89 Tenn. 423, 46 Am. wire which was liable to break and 
 
 & Eng. R. Cas. 206, 14 S. W. 863; come in contact with a highly 
 
 Block V. Milwaukee St. Ry. Co., charged trolley wire, where it has 
 
 5 Am. Electl. Cas. 293, 89 Wis. no knowledge of its condition. 
 
 371, 61 N. W. iioi, 27 L. R. A. Hand v. Central Pa. Tel. & S. Co. 
 
 36s; Krattz V. Brush EI. Light (C. P.), i Lack. Leg. N. 351. 
 
 Co., 82 Mich. 457, 46 N. W. 787; 58. Hovey v. Mich. Tel. Co., 
 
 West. Union Tel. Co. v. Thorne, 124 Mich. 607, 7 Det. Leg. N. 353, 
 
 28 U. S. App. 123; Huber v. La 83 N. W. 600; Jones v. Finch 
 
 Crosse City R. Co., 92 Wis. 636, (Ala.), 29 So. 182. 
 
 66 N. W. 708, 31 L. R. A. 583. 59. Simmons v. Toledo, 5 Ohio 
 
 57- Atlanta Consol. St. R. Co. C. C. 124. 
 V. Owings, 97 Ga. 663, 33 L. R. A. 
 
lookout; signals. 
 
 293 
 
 reasonable means to avoid accidents, and to respect the equal 
 rights of others to the use of the public streets.^" On ap- 
 proaching a street crossing, even with usual and ordinary- 
 speed, a warning should be given.^' Before running forward 
 at such a speed that he will be likely to strike a team driving 
 along beside the track, he should give a warning signal, 
 unless he has good reason to believe the occupants of the 
 
 60. West Chicago St. R. Co. v. 
 "Williams, 87 111. App. 548; Swain 
 V. Fourteenth St. R. Co., 93 Cal. 
 179, 28 Pac. 829; Wells V. Brook- 
 lyn City R. Co., S8 Hun (N. Y.), 
 389, 34 St. Rep. (N. Y.) 632, 12 
 N. Y. Supp. 67; Chicago Gen. Ry. 
 Co. V. Kriz, 94 111. App. 277. 
 
 61. Owensboro City R. Co. v. 
 Hill (Ky.), s6 S. W. 21; Hall v. 
 Ogden City St. R. Co., 13 Utah, 
 243, 44 Pac. 1046, 4 Am. & Eng. 
 R. Cas. (N. S.) ^^■, DHscoII v. 
 Market St. Cable R. Co., 97 Cal. 
 SS3, ZZ Am. St. Rep. 203, 32 Pac. 
 S9i; Mitchell v. Tacoma R. & M. 
 Co., 9 Wash. 120; Fandel v. Third 
 Ave. R. Co., IS App. Div. (N. Y.) 
 426, 44 N. Y. Supp. 462; Mitchell 
 V. Third Ave. R. Co., 62 App. 
 Div. (N. Y.) 371, 70 N. Y. Supp. 
 1 1 18; Dennis v. North Jersey St. 
 Ry. Co. (N. J. Sup.), 45 Atl. 807; 
 Traction Co. v. Scott, 58 N. J. L. 
 682, 34 Atl. 1094, ZZ L- R- A. 122; 
 Traction Co. v. Chenowith, 61 N. 
 J. L. SS4, 35 Atl. 1068, 5 Am. & 
 Eng. R. Cas. (N. S.) 599. In the 
 case of Mitchell v. Third Ave., 
 etc., Co., supra, it appeared that 
 the car vi^as going very fast, the 
 motorman looking tovirard the rear, 
 and that he did not ring any bell 
 and the headlight was dim at the 
 time of the accident. 
 
 The defendant's negligence is 
 fairly a question for the jury where 
 it appears that at the time of the 
 accident the motorman was en- 
 gaged in conversation with some 
 one inside the car, and the speed 
 of the car was constantly in- 
 creased up to within a short dis- 
 tance of the point where the 
 accident occurred. Killeen v. 
 Brooklyn Heights R. Co., 48 App. 
 Div. (N. Y.) 557, 62 N. Y. Supp. 
 927. And see Goldstein v. D. D., 
 etc., R. Co., 35 Misc. Rep. (N. Y.) 
 200, 71 N. Y. Supp. 477; Watson 
 v. Minneapolis St. R. Co., 53 
 Minn. 551, 55 N. W. 742. The 
 sounding of a gong for a consider- 
 able distance on the approach of 
 a motor car to a street crossing 
 is a sufificient warning to travelers 
 in the absence of a statute requir- 
 ing other or different signals. Van 
 Patten v. Schenectady St. R. Co., 
 80 Hun (N. Y.), 494, 62 St. Rep. 
 (N. Y.) 378, 30 N. Y. Supp. 501. 
 
 In the Driscoll Case, supra, it 
 was held that the company was not 
 relieved from liability for injuries 
 occasioned by failure to ring the 
 gong by the fact that the city 
 ordinance required the person 
 immediately in charge of the car, 
 and not the company, to give the 
 warning. 
 
294 
 
 STREET SURFACE RAILROADS. 
 
 wagon are aware of the approach of the car.*^ He should 
 look ahead, not only on his track to see that the way is clear, 
 but on each side of the track to see that no one is about to 
 get on it, and that there are no conditions or circumstances 
 that would evidently compel persons then in his view passing 
 along the street to go upon the track in front of the car/^ 
 He is not however, per se, guilty of negligence in momen- 
 tarily looking to the sidewalk to see whether persons stand- 
 ing thereon desire to get upon the car.** But he is not 
 excused for failure to keep a lookout' upon approaching the 
 intersection of two streets in a very busy part of the city by 
 
 62. Tashjian v. Worcester Con- 
 sol. St. Ry. Co., 177 Mass. 75, 58 N. 
 E. 281; Murphy v. Derby St. Ry. 
 Co., 73 Conn. 249, 47 Atl. 120. 
 
 63. Macon & I. S. El. St. R. Co. 
 V. Holmes, 103 Ga. 655, 30 S. E. 
 563, 4 Am. Neg. Rep. 251, 12 Am. 
 & Eng. R. Cas. (N. S.) 38s ; Con- 
 way V. New Orleans City & L. R. 
 Co., 51 La. Ann. 146, 24 So. 780, 
 5 Am. Neg. Rep. 354; Baird v. 
 Citizens' R. Co., 146 Mo. 265, 48 
 S. W. 78; City R. Co. V. Thomp- 
 son, 28 Tex. Civ. App. 16, 47 S. 
 W. 1038; San Antonio St. R. Co. 
 V. Renken, 15 Tex. Civ. App. 229, 
 38 S. W. 829; Ehrman v. Nassau 
 EI. R. Co., 23 App. Div. (N. Y.) 
 21, 48 N. Y. Supp. 379; Martin v. 
 Third Ave. R. Co., 27 App. Div. 
 (N. Y.) 52, so N. Y. Supp. 284; 
 Nugent V. Met. St. R. Co., 17 App. 
 Div. (N. Y.) S82, 45 N. Y. Supp. 
 596; Calumet E. St. R. Co. v. 
 Lewis, 168 111. 249, 48 N. E. 153; 
 Barnes v. Shreveport City R. 
 Co., 47 La. Ann. 1218, 17 So. 782; 
 Kestner v. Pittsb. & B. Traction 
 Co., 158 Pa. St. 422, 27 Atl. 1048; 
 Dallas Rapid Transit R. Co. v. 
 
 Elliott, 7 Tex. Civ. App. 216, 2& 
 S. W. 455; Hart v. Cedar Rapids 
 & M. C. Ry. Co. (Iowa), 80 N. W. 
 662; Consolidated Traction Co. v. 
 Haight, 59 N. J. L. (30 Vroom) 
 577, 37 Atl. 135; Warren v. Union 
 Ry. Co., 46 App. Div. (N. Y.) 517. 
 In the case last cited it appeared 
 that the plaintiff was driving a 
 wagon, the back and sides of 
 which were inclosed, along a pub- 
 lic highway, in the center of which 
 defendant maintained its track, 
 and in consequence of each side 
 of the street being out of repair, 
 the wheel of plaintiflf's wagon was 
 only about a foot from the track, 
 and the wagon was overturned by 
 a trolley car approaching rapidly 
 and without warning from the 
 rear. 
 
 64. Johnson v. Reading City 
 Pass. R. Co., 160 Pa. St. 647, 28 
 Atl. 100, 34 W. N. C. 203, 40 Am. 
 St. Rep. 752. Or, when his atten- 
 tion is momentarily diverted to an 
 important and essential duty re- 
 quisite to the safety of the passen- 
 gers. Culbertson v. Met. St. R. 
 Co., 140 Mo. 35, 36 S. W. 834. 
 
lookout; signals. 295 
 
 the fact that his attention is diverted in trying to identify 
 another car which he was passing to determine whether it 
 was the car to which he should change.^^ fhe absence of 
 any municipal ordinance requiring the ringing of a bell or 
 the sounding of a gong or other signal by the operators of a 
 street railroad line at street crossings, or elsewhere, does not 
 relieve the company from liability for personal injury sus- 
 tained because the one managing the power of the car had 
 negligently failed to give a signal upon observing the person 
 injured in a dangerous position.^^ Approaching a crossing 
 where he has reason to suppose children may be engaged in 
 coasting or other play, he must keep watch and sound warn- 
 ings for such children, although their conduct is unlawful.^' 
 But street railroad companies are not compelled to ring a 
 bell from one end of a route to another, and one injured in 
 the middle of a block cannot recover for the injury, merely 
 because of the absence of warning of the approaching car.^^ 
 
 65. Thoresen v. La Crosse City to the track, between two inter- 
 R. Co., 87 Wis. 597, 58 N. W. 1051, secting cross-streets, preventing 
 41 Am. St. Rep. 64. Nor be- the motorman from seeing one at 
 cause he was engaged in making the end of the pile, or such a one 
 change for a passenger. Barnes from seeing the car, so as to ren- 
 V. Shreveport R. Co., 47 La. Ann. der the company liable for inju- 
 1218, 17 So. 782. ries to a child, non sui juris, who 
 
 66. Mitchell v. Tacoma R. & M. was playing at the end of the pile 
 Co., 9 Wash. 120, 27 Pac. 341. and suddenly ran immediately in 
 
 67. Strutzel V. St. Paul City R. front of or against the car, where 
 Co., 47 Minn. 543, 50 N. W. 6go, there is no evidence that children 
 II Ry. & Corp. L. J. 132. were in the habit of playing at 
 
 68. Kuhnen v. Union Ry. Co., that particular point, or any other 
 10 App. Div. (N. Y.) igs; De loia circumstance to put the motorman 
 V. Met. St. R. Co., 27 App. Div. on notice. Perry v. Macon Con- 
 (N. Y.) 455, 56 N. Y. Supp. 22. sol. St. R. Co., loi Ga. 400, 29 
 It is not negligence for a motor- S. E. 304, 10 Am. & Eng. R. Cas. 
 man to fail to sound his gong or (N. S.) 819. And see Miller v. 
 give other warning upon approach- Union Traction Co., 198 Pa. St. 
 ing a pile of lumber lying longi- 659, 48 Atl. 864; Lawson v. Met. 
 tudinally at the side of and close St. R. Co., 40 App. Div. (N. Y.) 
 
296 
 
 STREET SURFACE RAILROADS. 
 
 Being alert and having his car well in hand so as to be able 
 to stop the car at once, the motorman or gripman is not 
 bound to infer the existence of danger from the approach of 
 a vehicle upon the other track ; and the company is not liable 
 for an injury occasioned by the sudden turning of a truck 
 loaded with lumber upon an adjoining track, so that the ends 
 of the lumber were thrust through a car window.^^ Failure of 
 the employees in charge of a street car to keep a proper look- 
 out does not render the company liable for an injury to a per- 
 son on the track, himself guilty of contributory negligence.'" 
 Where a driver sees a street car approaching, actionable neg- 
 ligence cannot be predicated on a failure to ring the gong." 
 
 307, 57 N. Y. Supp. 997; affd., i66 
 N. Y. 589, 59 N. E. 1 124. 
 
 69. Alexander v. Rochester City 
 & B. R. Co., 128 N. Y. 13, 38 St. 
 Rep. (N. Y.) 254, 2^ N. E. 950; 
 Elwood V. Chicago City Ry. Co., 
 90 III. App. 397; McFarland v. 
 Third Ave. R. Co., 29 Misc. Rep. 
 (N. Y.) 121, 60 N. Y. Supp. 273. 
 
 70. Hot Springs R. Co. v. John- 
 son, 64 Ark. 420, 42 S. W. 833. In 
 a recent case in New York the 
 trial court charged the jury that 
 the plaintiff, who had been driving 
 on the track of the defendant in 
 front of an approaching car, " had 
 the right to assume that they 
 would give him timely warning of 
 its approach — the motorman." 
 On review, the court said: "This 
 is not the law. While it was the 
 duty of the motorman to give 
 timely warning if he saw the 
 wagon, or, if he might in the ex- 
 ercise of reasonable care, have seen 
 the wagon in time to have given 
 such warning, he was not bound to 
 do so under all circumstances; and 
 
 it was for the jury to determine, 
 under all the circumstances of this 
 case, whether the motorman had 
 discharged his duty, and whether 
 the plaintiff had been free from 
 contributory negligence. The de- 
 fendant did not have the absolute 
 right to the use of the tracks; the 
 plaintiff might lawfully drive upon 
 them; but the defendant did have 
 the paramount right, and the 
 plaintiff could not drive upon the 
 tracks of the defendant and impose 
 upon it the absolute duty of giv- 
 ing timely warning of the ap- 
 proach of the car." Devine v. 
 Brooklyn Heights R. Co., 34 App. 
 Div. (N. Y.) 248, 54 N, Y. Supp. 
 626. 
 
 71. Anderson v. Met. St. R. Co., 
 30 Misc. Rep. (N. Y.) 104, 61 N. 
 Y. Supp. 899; Williamson v. Met. 
 St. Ry. Co., 29 Misc. Rep. (N. Y.) 
 324, 60 N. Y. Supp. 477. In Don- 
 nelly v. Brooklyn City R. Co., 
 109 N. Y. 16, it appeared that the 
 plaintiff knew of the approaching 
 train; and it was held that the 
 
lookout; signals. 
 
 297 
 
 The one controlling the power and movement of the car may 
 presume, for example, that one driving a carriage in front of 
 his approaching car and who apparently is about to turn 
 upon the track in front of the car, will desist from so doing 
 when he sounds the gong; he is only bound, as an ordinarily 
 careful man, to exercise efiforts to stop his car after he sees 
 that his warning is unheeded/^ Since a street car runs with 
 greater rapidity and momentum than a wagon or an omni- 
 bus, greater caution should be taken to avoid collision. It 
 ought to be lighted in the nighttime so that its approach can 
 be seen by other travelers; and between twilight and dark, if 
 not lighted, it ought to be run so slowly as to avoid collision, 
 or else give, by some signal, warning of its approach. '^ "The 
 
 dimness of the headlight or the 
 failure to blow the whistle or 
 to ring a bell, under the circum- 
 stances of that particular case, did 
 not constitute negligence on the 
 part of the defendant. And see 
 Little V. Street Ry. Co., 87 Mich. 
 20S, 44 N. W. 137. 
 
 72. Cauley v. La Crosse City R. 
 Co., 106 Wis. 239, 82 N. W. 197. 
 And see Stelk v. McNulta, 40 C. 
 C. A. 3S7, and note thereto; Hart 
 V. Railway Co., 109 Iowa, 631. 
 
 73. Rascher v. East Detroit, etc., 
 Ry. Co., 4 Am. Electl. Cas. 473, 
 90 Mich. 413, 30 Am. St. Rep. 
 447, 51 'N. W. 463; Vitelli V. Nas- 
 sau El. R.-Co., S3 At)P- Div. (N. 
 Y.) 639, 65 N. Y. Supp. 1027; 
 Kaechele v. Traction Co., 15 Pa. 
 Super. Ct. 73; Dunican v. Union 
 Ry- Co., 39 App. Div. (N. Y.) 
 497, S7 N. Y. Supp. 326, 6 Am. 
 Neg. Rep. 155. In the case last 
 cited it was held that if the driver 
 of a street car approaching a 
 
 private crossing has reason to be- 
 lieve that persons are in the habit 
 of coming upon the highway at 
 the time when he is approaching, 
 he is bound to use the same care 
 toward those persons that he 
 would be bound to use with regard 
 to other persons crossing the 
 street at any regular crossing. 
 The motorman need not continu- 
 ously sound a gong on approach- 
 ing a street crossing on a clear, 
 still night when the car is in good 
 condition, with an electric head- 
 light, not much traffic, and there is 
 no unusual obstruction preventing 
 a view of the car by one approach- 
 ing on the cross-street. Stafford 
 V. Chippewa Val. El. R. Co. (Wis.), 
 8s N. W. 1036'; Johnson v. H. R. 
 R. Co., 20 N. Y. 65; Shea v. 
 Potero, etc., Co., 44 Cal. 414; 
 East Memphis City Ry. Co. v. 
 Logue, 13 Lea (Tenn.), 32, 15 Am. 
 & Eng. R. Cas. 4S9- 
 
298 STREET SURFACE RAILROADS. 
 
 Texas statute requiring the blowing of whistle or the ringing- 
 of bell upon railway trains does not apply to street railroads.^* 
 
 § 9. Duties of motormen, gripmen, etc. — The driver of an 
 ordinary vehicle is bound to be watchful at all points in a. 
 crowded city street, elsewhere as well as at a crossing.'^^ 
 This rule is certainly applicable to the one controlling the 
 propulsive power of a street car. At the intersection of two 
 streets, the driver of a vehicle or a pedestrian has the right to 
 cross the tracks of a street surface railroad, notwithstanding 
 a car is in sight; provided there is a reasonable opportunity 
 so to do, and if, for that purpose, it is necessary for the per- 
 son having charge of the motive power of the car to check 
 its speed, or even to entirely stop such car for a short period, 
 it is his duty to do so, and the person crossing the track has 
 the right, without being necessarily chargeable with con- 
 tributory negligence, to assume that that duty will be per- 
 formed; the rights of the driver of the vehicle or of the 
 pedestrian and of the person in charge of the motive power 
 of such car, under these circumstances, are reciprocal, and 
 the question whether it is negHgence on the part of the 
 traveler to cross the track when a car is approaching is de- 
 pendent upon the circumstances of each case.'* The question 
 
 74- Citizens' St. R. Co. v. Sup.), 46 Atl. 779; Highland Ave. 
 Holmes, 19 Tex. Civ. App. 266, & B. R. Co. v. South, 112 Ala. 
 46 S. W. 116. 642, 20 So. 1003. A driver on a 
 
 75- Moebus v. Herrmann, 108 highway is not bound to take 
 N. Y. 349; Wells v. Brooklyn City special precautions against being 
 Ry. Co., s8 Hun (N. Y.), 389, 34 struck by a switch stick which 
 St. Rep. (N. Y.) 636, 12 N. Y. falls from the hands of a conductor 
 Supp. 67. of a trolley car while using it to. 
 
 76. Piercy v. Met. St. R. Co., free the trolley from a frog in the 
 
 30 Misc. Rep. (N. Y.) 612, 615, wires. Manning v. West End St. 
 
 62 N. Y. Supp. 867; Sickler v. R. Co., 166 Mass. 230, 44 N. E. 13S. 
 
 North Jersey St. R. Co. (N. J. And see Hickman v. Union Depot 
 
motormen; gripmen. 
 
 299 
 
 in every case is: Did the approaching parties, the cardriver 
 on the one hand and the person crossing the track on the 
 other, use the ordinary care of reasonably prudent persons to 
 avoid a collision under the given conditions? In the nature 
 of things, that question jpust always be submitted to the 
 jury. '7 It may be said generally however that the person 
 controlling the motive power of a street car must use the 
 highest degree of care to avoid injury to a person after dis- 
 covering his peril.^® If a person be run down and under the 
 car, without his (the motorman's) negligence, and he uses 
 his best judgment in the sudden emergency to extricate him, 
 the company is not liable for any further injury.'^ While it 
 
 R. Co., 47 Mo. App. 65; Baltimore 
 Tract. Co. v. Wallace (Md.), 21 
 Wash. L. Rep. 313, 26 Atl. 518; 
 Hergert v. Union R. Co., 25 App. 
 Div. (N. Y.) 218, 49 N. Y. Supp. 
 307; Kennedy v. Third Ave. R. 
 Co., 31 App. Div. (N. Y.) 30, 52 
 N. Y. Supp. 551. Where the 
 space between a standing carriage 
 and the car tracks is very small 
 a car driver approaching from the 
 rear without warning is negligent. 
 Tarler v. Met. St. R. Co., 21 Misc. 
 Rep. (N. Y.) 684, 47 N. Y. Supp. 
 1090. . , And see Saffer v. West- 
 chester El. R. Co., 22 Misc. Rep. 
 (N. Y.) 555, 49 N. Y. Supp. 998; 
 West Chicago St. R. Co. v. Mc- 
 Callum, 169 111. 240, 48 N. E. 424, 
 affg. 67 111. App. 645; Stanley v. 
 Union Depot R. Co., 114 Mo. 606, 
 56 Am. & Eng. R. Cas. 561, 21 
 S.' W. 832. 
 
 TJ. Lauson v. Met. St. R. Co., 
 40 App. Div. (N. Y.) 312, 313; 
 O'Leary v. Brockton St. R. Co., 
 177 Mass. 187, S8 N. E. 585; Hor- 
 gan V. Jones, 131 Cal. 521, 63 Pac. 
 
 835; Montgomery v. Johnson 
 (Ky.), 58 S. W. 476, 22 Ky. L. 
 Rep. 596; Knoll v. Third Ave. R. 
 Co., 46 App. Div. (N. Y.) 527, 62 
 N. Y. Supp. 16; affd., 60 N. E. 
 III3- 
 
 78. Louisville R. Co. v. Blaydes 
 (Ky.), 52 S. W. 960; Warren v. 
 Manchester St. Ry. Co. (N. H.), 
 47 Atl. 735; Wills v. Ashland, etc., 
 Ry. Co., 108 Wis. 255, 84 N. W. 
 998; Legare v. Union Ry. Co., 6r 
 App. Div. (N. Y.) 202, 70 N. Y. 
 Supp. 718; Manor v. Bay Cities 
 Consol. R. Co., 118 Mich, i, 76 
 N. W. 139, 5 Det. Leg. N. 420; 
 Gutierrez v. Larago El. Ry. Co. 
 (Tex. Civ. App.), 45 S. W. 310; 
 Cohen v. Met. St. R. Co., 71 N. 
 Y. Supp. 268; Moore v. Charlotte 
 El. St. R. Co. (N. C), 39 S. E. 
 57; Toledo El. St. R. Co. v. West- 
 tenhuber, 22 Ohio C. C. 67, 12 O. 
 C. D. 22. 
 
 79. Trussell v. Union Tract. Co. 
 (Pa. C. P.), 31 Pittsb. L. J. (N. S.) 
 IS- 
 
300 STREET SURFACE RAILROADS. 
 
 cannot be said as matter of law that he may assume that the 
 driver of a vehicle will not cross the track in dangerous 
 proximity to his approaching car, it may be said that where 
 the speed of his car is not unreasonable and he spares no 
 effort to check it so as to avoid colUsion, the company is not 
 negligent.*" Seeing a person driving along the road parallel 
 with the track as though he had no intention of crossing it, 
 he is not guilty of negligence because he did not anticipate 
 that such person would suddenly turn across the track in the 
 middle of a block.*' But if he sees the driver of a wagon in 
 front of him does not look back, nor pay any attention to the 
 ringing of the bell, nor increase his rate of speed, nor attempt 
 to leave the track, it is his duty to bring his car under control 
 and even to stop, if necessary, to avoid collision.*^ He should 
 stop his car at once upon seeing the wheels of a heavily 
 loaded wagon in front of it slip on the track while the driver 
 is attempting to get out of the way.*^ He may safely assume 
 
 80. Sauers v. Union Tract. Co., Pac. 920; Christensen v. Union 
 193 Pa. St. 602, 44 Atl. 917; Mc- Trunk Line, 6 Wash. 75, 32 Pac. 
 Farland v. Third Ave. R. Co., 29 1018. 
 
 Misc. Rep. (N. Y.) 121, 60 St. 82. Sears v. Seattle Consol. St. 
 
 Rep. (N. Y.) 273; Jacksonville v. R. Co., 4 Am. Electl. Cas. 423, 6 
 
 Lamb, 86 111. App. 487; Wilson v. Wash. 227; Hicks v. Citizens' R. 
 
 Memphis St. Ry. Co., 105 Tenn. Co., 124 Mo. 115, 25 L. R. A. 508, 
 
 74, 58 S. W. 334; Harmon v. Pa. 27 S. W. 542. 
 
 Tract. Co. (Pa.), 49 Atl. 755; Kess- 83. Bush v. St. Joseph, etc., St. 
 
 ler v. Citizens' St. R. Co., 20 Ind. R. Co., 113 Mich. 513, 71 N. W. 
 
 App. 427, so N. E. 891; Phillips 851, 4 Det. Leg. N. 377. He may 
 
 V. People's Pass. R. Co., 190 Pa. be negligent in increasing the 
 
 St. 222, 42 Atl. 686, 43 W. N. C. speed of his car, after having it 
 
 531, 5 Am. Neg. Rep. 719; Siek v. under full control, when a few feet 
 
 Toledo, etc., St. R. Co., 16 Ohio behind a wagon loaded with bales, 
 
 C C. 393, 9 O. C. D. 51; De so close to the track as to be 
 
 Lon V. Kokomo City St. R. Co., rubbed by the car in passing. 
 
 22 Ind. App. 377, I Repr. 1050, Blakeslee v. Consol. St. R. Co., 
 
 49 Cent. L. J. 7, S3 N. E. 847. 112 Mich. 6s, 70 N. W. 408, 29 
 
 81. Davidson v. Denver Tram- Chic. Leg. N. 257, 3 Det. Leg. N. 
 way Co., 4 Colo. App. 283, 3S 844; Davidson v. Schuylkill Tract. 
 
motormen; gripmen. 
 
 301 
 
 that one standing upon the track will step out of the way in 
 time to avoid the car in the absence of anything to indicate 
 that he does not hear the signals, although in fact he is deaf.^* 
 When, to avoid an impending collision, the motorman is 
 obHged to choose instantly one of two appliances provided 
 for stopping his car, he is not guilty of, and the company is 
 not chargeable with negligence, because the event proves 
 that the one he chose and used may not have been the best 
 to meet the exigency; especially when the one selected is 
 the more reliable, though possibly not as prompt in action.^5 
 
 Co., 4. Pa. Super. Ct. 86; Will v. 
 West Side R. Co., 84 Wis. 42, 54 
 N. W. 30. 
 
 84. Lyons v. Bay Cities Con- 
 sol. R. Co., IIS Mich. 114, 73 N. 
 W. 139, 4 Det. Leg. N. 797; Doyle 
 V. West End St. R. Co., 161 Mass. 
 S33; Daly v. Detroit Citizens' R. 
 Co., 105 Mich. 193; O'Rourke v. 
 New Orleans, etc., Co.,^ 51 La. 
 Ann. 755, 25 So. 323; Beem v. 
 Tama, etc., Co., 104 Iowa, 563, 73 
 N. W. 1045, 10 Am. & Eng. R. 
 Cas. (N. S.) 610; Schulte v. New 
 Orleans, etc., Co., 44 La. Ann. 509, 
 10 So. 811; Houston City St. R. 
 Co. V. Woodlock (Tex. Civ. App.), 
 29 S. W. 817; Houston City St. R. 
 Co. V. Farrell, 27 S. W. 942; Son- 
 nenfeld Millinery Co. v. People's 
 R. Co., 59 Mo. App. 68. Citi- 
 zens' St. R. Co. V. Shepherd 
 (Tenn.), 64 S. W. 710. Where it 
 appeared that some sixty feet from 
 a street crossing the motorman 
 saw a five-year old girl about 
 twelve feet from the track, at the 
 crossing, starting to cross it, ap- 
 plied the brake and sounded the 
 gong; the child moved forward 
 looking at the car and stopped 
 
 about three feet from the track; 
 the motorman then released the 
 brake, when within about six feet 
 of the crossing the child suddenly 
 started to cross and was run over 
 and killed; the car was stopped 
 about sixty or seventy feet from 
 the crossing. There was testimony 
 that it was running sixteen miles 
 per hour, and also that it was run- 
 ning only eight miles per hour. It 
 was held that the motorman was 
 not guilty of negligence entitling 
 the plaintiff to recover. Tishacek 
 V. Milwaukee El., etc., Co. (Wis.), 
 8s N. W. 971. Where the com- 
 plaint simply charges negligence, 
 evidence of a willful intent to in- 
 jure, or reckless disregard of plain- 
 tiff's safety, is inadmissible. Mc- 
 Clelland v. Chippewa Valley Ry. 
 Co. (Wis.), 85 N. W. 1018. 
 
 85. Stabenau v. Atlantic Ave. R. 
 Co., iss N. Y. sii, so N. E. 277; 
 Bitner v. Crosstown St. R. Co., 
 153 N. Y. 76; Wynn v. Central 
 Park, etc., R. Co., 133 N. Y. S7S; 
 Lewis V. Long Isl. R. Co., 162 N. 
 Y. 52, 62; Stabenau v. Atlantic 
 Ave. R. Co., 6 Am. Electl. Cas. 
 SS2, 15 App. Div. (N. Y.) 408; 
 
.302 
 
 STREET SURFACE RAILROADS. 
 
 A motorman has the right to assume that an active child 
 would not voluntarily run upon, or remain upon, the track 
 in front of an approaching car, when an easy motion would 
 remove him from peril, and his omission to suddenly stop the 
 car in such a case, to the discomfort and possible injury of 
 the passengers, is not neghgence.^* But he must be watch- 
 ful for children, and so manage his car as to be able to stop it 
 quickly if a child do appear upon the track; and if the child 
 be a small child, say seven or eight years of age, or under, it 
 will not do merely to sound a warning and be certain that the 
 child knows of the approaching car, he must stop to avoid 
 collision.*^ xhe plaintiff must fail if the evidence does not 
 
 Bishop V. Bell City R. Co., 92 
 Wis. 139, 65 N. W. 733- 
 
 86. Fenton v. Second Ave. R. 
 Co., 126 N. Y. 625; Stabenau v. 
 Atlantic Ave. R. Co., 155 N. Y. 
 Sii; Same v. Same, 6 Am. Electl. 
 Cas. 552, 15 App. Div. (N. Y.) 
 408; Campbell v. New Orleans 
 City R. Co., 104 La. 183, 28 So. 
 985; Holdridge v. Mendenhall, 
 108 Wis. I, 83 N. W. 1 109; Callary 
 V. Easton, etc., Co., 185 Pa. St. 
 176, 39 Atl. 813; Mulcahy v. El. 
 Tract. Co., 185 Pa. St. 427, 39 Atl. 
 1106; Kierzenkowski v. Phila. 
 Tract. Co., 184 Pa. St. 459, 39 Atl. 
 220, 9 Am. & Eng. R. Cas. (N. S.) 
 534; Mt. Adams & E. P. R. Co. v. 
 Cavagna, 6 Ohio C. C. 606; Padu- 
 cah St. R. Co. V. Adkins (Ky. Su- 
 per. Ct.), 14 Ky. L. Rep. 425. He 
 is not however, as matter of law, 
 free from negligence in attempting 
 to run the car past a girl nine years 
 old, who is running away from it 
 toward a part of the street where 
 it is obstructed to within three feet 
 of the track. Calumet El. St. R. 
 
 Co. V. Van Pelt, 68 111. App. 582, 
 29 Chic. Leg. N. 197, 2 Chic. L. 
 J. Wkly. no. He is not charge- 
 able with negligence on seeing a 
 child in the gutter indicating no 
 intention to cross the street until 
 the car was within ten feet, when 
 she suddenly attempted to cross it 
 and was injured. Fleischmann v. 
 Neversink M. R. Co., 6 Am. Electl. 
 Cas. 573, 174 Pa. St. sio, 34 Atl. 
 119. And see McLaughlin v. New 
 Orleans & C. R. Co., 48 La. Ann. 
 23, 18 So. 703; Funk v. El. Tract. 
 Co., 17s Pa. St. SS9, 34 Atl. 861; 
 Ogier V. Albany R. Co., 88 Hun 
 (N. Y.), 486, 34 N. Y. Supp. 867; 
 Gannon v. New Orleans City & L. 
 R. Co., 48 La. Ann. 1002, 20 So. 
 223. 
 
 87. Elwood El. St. Ry. Co. v. 
 Ross (Ind. App.), 58 N. E. 535; 
 Schmidt v. St. Louis R. Co. (Mo.), 
 63 S. W. 834; Oster v. Schuylkill 
 Tract. Co. (Pa.), 45 Atl. 1006; 
 Fullerton v. Met. St. R. Co., 63 
 App. Div. (N. Y.) i; 71 N. Y. 
 Supp. 326; Goldstine v. D. D., etc.. 
 
motormen; gripmen. 
 
 303 
 
 ■show that the injury was the result of some cause for which 
 the defendant is responsible, and where the proof is by cir- 
 cumstances, the circumstances themselves must be shown 
 and not left to rest in conjecture, and, when shown, it must 
 appear that the inference sought is the only one which can 
 fairly and reasonably be drawn from the facts.^^ Then too 
 
 H. Co., 35 Misc. Rep. (N. Y.) 200, 
 71 N. Y. Supp. 477; Griffiths v. 
 Met. St. R. Co., 63 App. Div. (N. 
 Y.) 86, 71 N. Y. Supp. 406; San 
 Antonio St. R. Co. v. Mechler 
 (Tex.), 30 S. W. 899; Wallace v. 
 City & S. R. Co., 26 Oreg. 174, 37 
 Pac. 477, 25 L. R. A. 663; North 
 Chicago St. R. Co. v. Hoflfart, 82 
 111. App. 539 ; Bergen Co. Tract. Co. 
 V. Heitman, 61 N. J. L. 682, 40 
 Atl. 651, II Am. & Eng. R. Cas. 
 (N. S.) 286, 4 Am. Neg. Cas. 511; 
 Rice V. Crescent City R. Co., 41 
 La. Ann. 108, 24 So. 791; Rack v. 
 Chicago City R. Co., 173 111. 289, 
 SO N. E. 668; Adams v. Met. St. 
 Ry. Co., 69 N. Y. Supp. 11 17, 60 
 App. Div. (N. Y.) 188. If it ap- 
 pear that a child less than five 
 years of age started to cross a 
 street in front of a rapidly moving 
 electric car 100 feet distant, a 
 question of fact is raised whether 
 prudence would require the motor- 
 man to act upon the assumption 
 that the child was about to attempt 
 to cross in advance of the car, and 
 demand that he so regulate its 
 speed as to avoid running the child 
 ■down. Adams v. Nassau El. R. 
 Co., 51 App. Div. (N. Y.) 241, 64 
 N. Y. Supp. 818; Gumby v. Met. 
 St. R. Co., 29 App. Div. (N. Y.) 
 335; Kitay V. Brooklyn, Q. C. & 
 S. Ry. Co., 23 App. Div. (N. Y.) 
 228; Muller V. Brooklyn Heights 
 
 R. Co., 18 App. Div. (N. Y.) 177; 
 Nugent V. Met. St. R. Co., 17 
 App. Div. (N. Y.) 585. It ap- 
 peared that a boy fourteen years 
 of age walked in the street at a 
 distance of five or six feet from 
 the street car track while a motor- 
 car was coming up behind at a rate 
 of three to six miles an hour; the 
 motorman, inexperienced, saw the 
 boy but did not sound the gong 
 or check the car's speed, though 
 the boy iwas constantly nearing 
 the track; he called to the boy 
 when he got near the track without 
 reversing the motor, and the boy 
 stepped on the track when the car 
 was within about five feet of him 
 and was killed. It was held that 
 the conduct of the motorman was 
 not so reckless or wanton as to 
 show a willful intention to injure 
 the boy. Wills v. Ashland Light, 
 Power & St. Ry. Co., 108 Wis. 
 255, 84 N. W. 998. And see Chi- 
 cago City Ry. Co. v. Tuohy, 95 
 111. App. 314; Aiken v. Holyoke 
 St. Ry. Co. (Mass.), 61 N. E. 557. 
 88. Laidlaw v. Sage, 158 N. Y. 
 y>i, loi; Ruppert v. Brooklyn 
 Heights R. Co., 154 id. 90, 94; 
 White V. Albany R. Co., 35 App. 
 Div. (N. Y.) 23, 54 N. Y. Supp. 
 44s; Frank v. Met. St. R. Co., 44 
 App. Div. (N. Y.) 243, 60 N. Y. 
 Supp. 616. So where it appeared 
 that defendant maintained two 
 
304 
 
 STREET SURFACE RAILROADS. 
 
 tracks upon a Street where a boy- 
 was playing and that the latter, in 
 running diagonally across the 
 street, passed behind the car going 
 north and as he did so the car go- 
 ing south was about forty feet 
 north of him on the other track; 
 upon reaching the space between 
 the tracks the boy stood looking 
 at the car for some appreciable 
 length of time, then started to 
 cross and was struck by the south- 
 bound car; held no proof of neg- 
 ligence on the part of defend- 
 ant. Greenberg v. Third Ave. R. 
 Co., 35 App. Div. (N. Y.) 619, 55 
 N. Y. Supp. 135; De loia v. Met. 
 St. R. Co., 37 App. Div. (N. Y.) 
 455> 56 N. Y. Supp. 22; Ewing v. 
 Atlantic Ave. R. Co., 34 St. Rep. 
 (N. Y.) 113, II N. Y. Supp. 626; 
 Mahoney v. N. Y. C. & H. R. R. 
 Co., 39 St. Rep. (N. Y.) 911, 9 N. Y. 
 Supp. 546. Negligence is not es- 
 tablished by showing that a car- 
 driver failed to stop his car, al- 
 though as soon as his attention 
 was called to a man lying on the 
 track in a dark part of the street, 
 at night, he immediately put on 
 the brake and stopped the car 
 within its length. Murray v. 
 Forty-second St., etc., R. Co., 9 
 App. Div. (N. Y.) 610, 41 N. Y. 
 Supp. 620. But where it does not 
 appear that the driver of the car 
 saw the plaintiff until after the 
 accident, the court will not re- 
 verse the judgment on appeal be- 
 cause of a charge that the highest 
 degree of care is required of a 
 driver of a car who sees a person 
 lying helpless on the track in front 
 of him. Giralso v. Coney Isl. & 
 B. R. Co., 42 St. Rep. (N. Y.) 
 915, 16 N. Y. Supp. 774. 
 
 It is the duty of the motorman: 
 
 Seeing a horsecar or other vehicle 
 in front of him to so manage and 
 control the speed of his car as to 
 avoid collision. Wynne v. At- 
 lantic Ave. R. Co., 14 Misc. Rep. 
 (N. Y.) 394, 35 N. Y. Supp. 1034, 
 70 St. Rep. (N. Y.) 737; McCon- 
 nell V. Atlantic Ave. R. Co., 11 
 Misc. Rep. (N. Y.) 177, 32 N. Y. 
 Supp. 114, 65 St. Rep. (N. Y.) 170. 
 
 To avoid collision with vehicles 
 traveling upon streets crossing his 
 tracks. Kerr v. Atlantic Ave. R. 
 Co., 10 Misc. Rep. (N. Y.) 264, 
 63 St. Rep. (N. Y.) 310, 30 N. Y. 
 Supp. 1070. 
 
 To have his car under control 
 when approaching a crosswalk or 
 cross-street, in order to avoid in- 
 jury to foot passengers and vehi- 
 cles thereon. Young v. Atlantic 
 Ave. R. Co., 10 Misc. Rep. (N. 
 Y.) 541, 31 N. Y. Supp. 441, 64 
 St. Rep. (N. Y.) 126; Jones v. 
 Brooklyn Heights R. Co., 10 Misc. 
 Rep. (N. Y.) 543. 3i N. Y. Supp. 
 445, 64 St. Rep. (N. Y.) 22; West 
 Chicago St. R. Co. v. Allen, 82 
 111. App. 128. 
 
 Discovering a boy on the step 
 of a platform to stop and take him 
 inside or put him off, not to 
 frighten him into jumping off. 
 Leving v. Second Ave. Tract. Co., 
 194 Pa. St. 156, 45 Atl. 134. 
 
 The driver of a street car on a 
 street railroad, in driving horses 
 attached to such car, must sit or 
 stand on the front platform or 
 place provided for him, maintain 
 control of the horses and car and 
 exercise a reasonable degree of 
 care and watchfulness to prevent 
 collisions and injuries to persons 
 driving on or over such street. 
 Brooks v. Lincoln Ry. Co., 22 
 Nebr. 816, 36 N. W. 529. If the 
 
motormen; gripmen. 
 
 305 
 
 the defendant's negligence must be the proximate cause of 
 the injury,*^ and must be established by a fair preponderance 
 of proof. 5° It is not negligence in itself to run a street ear- 
 in the opposite direction from which it is usually run.'' 
 
 company permit a boy to drive a 
 bobtail car, and he invites or en- 
 courages other boys to get on, it 
 is liable for the death of one of 
 them caused by an attempt to get 
 off, at the command of the con- 
 ductor, while the car was in mo- 
 tion. Hestonville, M. & F. R. Co. 
 V. Bidden, 16 Atl. 428, 24 W. N. 
 C. 156. 
 
 If it appear that at the time his 
 car ran over and injured a child 
 he was looking at persons assem- 
 bled at the side of the street, and 
 so failed to see the child in time 
 to prevent the injury, the question 
 of negligence is raised (Harkins 
 v. Tract. Co., 6 Am. Electl. Cas. 
 569, 173 Pa. St. 149) ; or, if after 
 seeing the child start from the side- 
 walk toward the track, twenty-five 
 feet distant, he brought the car 
 nearly to a full stop, and then see- 
 ing the child turn from the track, 
 released the brake and the child 
 then suddenly turned across the 
 track and the car struck her, his 
 negligence is a question for the 
 jury. Woeckner v. Erie El. Motor 
 Co., 6 Am. Electl. Cas. 581. 
 
 89. It appeared the motorman 
 was looking inside the car and did 
 not see the horse he collided with 
 until just before the collision, 
 which was caused by the sudden 
 starting of the horse across the 
 track, and the car which was run- 
 ning within the time allowed by 
 ordinance could not have been 
 
 stopped in time to avoid the col- 
 lision, even if the motorman had 
 been free from negligence. Hoff- 
 man V. Syracuse Rapid Transit 
 Co., 50 App. Div. (N. Y.) 83, 63 
 N. Y. Supp. 442. 
 
 90. The negligence of the de- 
 fendant, as claimed, consisted in 
 running a car without a light in 
 the nighttime. The plaintifif testi- 
 fied positively that there was no 
 headlight; two witnesses corrob- 
 orated him but were not so posi- 
 tive in their testimony. Six wit- 
 nesses testified for defendant that 
 the car was lighted by electricity, 
 and the headlight burning as it 
 approached the plaintiff — two of 
 them, the motorman and conduc- 
 tor, on the car itself — who had 
 every means of knowing and could 
 not be mistaken in their testimony 
 that all the lights were lighted. 
 On motion, the verdict was set 
 aside, as against the weight of evi- 
 dence. Doyle V. The Albany Rail- 
 way, 32 App. Div. (N. Y.) 87, 52 
 N. Y. Supp. 602. 
 
 91. North Chicago St. R. Co. v- 
 Irwin, 82 111. App. 146. A driver 
 was caught unavoidably in a 
 crowded street on a street railway- 
 track; several cars were in front 
 of him, some behind, and he was 
 prevented from turning to the left 
 by a car on another track, to the 
 right by a crowd in the street. 
 A street car in front ran back- 
 ward, collided with one imme- 
 
 20 
 
706 STREET SURFACE RAILROADS. 
 
 o 
 
 § 10. Compliance with statute, municipal, and other regula- 
 tions. — A municipality cannot, by ordinance, create a right of 
 action between third persons, nor enlarge the common-law 
 liability of citizens between themselves, hence, the violation 
 of such an ordinance, prescribing a penalty for failure to 
 comply therewith, requiring a motorman to keep a vigilant 
 watch for persons on or moving toward the track and on the 
 first appearance of danger to stop the car in the shortest time 
 possible, will not authorize a recovery against the company 
 for causing the death of a person on the track, without proof 
 that the company had agreed to be bound by such ordi- 
 nance.'^ Since such an ordinance is not enacted for the 
 special benefit of any person or class of persons, but simply 
 pertains to the conduct of the companies toward the com- 
 munity as a whole, no other liability follows the violation 
 than the penalty imposed by the ordinance itself.'^ It is 
 
 diately in front of the driver and 93. Holwerson Case, supra; Mur- 
 
 set it in motion, causing injury to phy v. Lindell Ry. Co., iS3 Mo. 252, 
 
 his team. The collision ought to 54 S. W. 442; Day v. Citizens' Ry. 
 
 have been foreseen by those in Co., 81 Mo. App. 471; Stafford v. 
 
 charge of the car run backward. Chippewa Valley El. R. Co. (Wis.), 
 
 The defense was that the car came 85 N. W. 1036. In the case last 
 
 down the grade because the motor- cited, the ordinance was a condi- 
 
 man had lost control of it. Held, tion in the grant of the franchise 
 
 a question for the jury. Kessock to the company and required the 
 
 V. Consol. Tract. Co., 15 Pa. Super. continuous ringing of a bell on a 
 
 Ct. 103. street car while in motion, and 
 
 92. Holwerson v. St. Louis & was hel4 unreasonable. While the 
 
 S. Ry. Co., 157 Mo. 216, 57 S. W. violation of the ordinance is not 
 
 770. One seeking to recover dam- negligence per se, it is evidence 
 
 ages because of an infraction of a of negligence. Hall v. Ogden St. 
 
 municipal ordinance and personal R. Co., 6 Am. Electl. Cas. 598, 13 
 
 injuries caused thereby must show, Utah, 243, 4 Am. & Eng. R. Cas. 
 
 by proof, the existence of the (N. S.) 77, 44 Pac. 1046; Highland 
 
 ordinance and its acceptance by the Ave. & B. R. Co. v. Sampson, 112 
 
 defendant. McAndrews v. St. Ala. 425, 20 So. 566; Connor v. 
 Louis & S. R. Co., 83 Mo. App. . El. Tract. Co., 173 Pa. St. 602, 38 
 
 ^33. W. N. C. 12, 34 Atl. 238; Buys v. 
 
COMPLIANCE WITH REGULATION. 
 
 307 
 
 .nevertheless such a breach of duty as may be made the 
 ifoundation of an action by a person sustaining special dam- 
 ages where the other elements of actionable negligence con- 
 cur; and this rule is of special application to cars propelled 
 by electricity.'* If the ordinance enact the maximum rate 
 of speed at which an electric car may be run within the 
 municipality, a greater rate of speed constitutes negligence, 
 and one driving. upon or along the track may assume that 
 the ordinance will be complied with.'s But the mere fact 
 that the street car is running in excess of the rate permitted 
 by the ordinance will not entitle an injured party to submit 
 the question of negligence to the jury, unless there is evi- 
 dence showing that the motorman could have avoided the 
 injury if the speed had been within the permitted rate.'* 
 
 Third Ave. R. Co., 45 App. Div. 
 (N. Y.) II, 61 N. Y. Supp. 113; 
 Baltimore City Pass. R. Co. v. 
 McDonnell, 43 Md. S44; Quincy 
 H. Ry., etc., Co. v. Gnuse, 38 111. 
 App. 212; Ramsay v. Montreal St. 
 Ry. Co., 32 C. L. J. 52; Wright 
 V. Maiden & Melrose R. Co., 4 
 Allen (Mass.), 283; Wall v. Helena 
 St. R. Co., 12 Mont. 44, 20 Am. 
 & Eng. R. Cas. 474, 29 Pac. 721. 
 
 There must be evidence that the 
 rate provided by the city ordinance 
 was exceeded, otherwise there is 
 no error in excluding the ordi- 
 nance. Wosika v. St. Paul Ry. 
 €0. (Minn.), 83 N. W. 386. 
 
 Earlier, in Missouri, it was held 
 that failure to observe the degree 
 of care in running a street car, 
 which is required by a valid ordi- 
 nance, imposing a penalty there- 
 for, renders the street car company 
 liable to a person who is injured 
 in consequence, although such de- 
 
 gree of care may be higher than 
 that which would otherwise be 
 required by law. Fath v. Tower 
 Grove & L. R. Co., 105 Mo. S37, 
 so Am. & Eng. R. Cas. 426, 16 S. 
 W. 913, 13 L. R. A. 74; Senn v. 
 So. R. Co., 135 Mo. 512, 36 S. W. 
 
 367- 
 
 94. Omaha St. R. Co. v. Duvall, 
 5 Am. Electl. Cas. 502, 40 Nebr. 
 29, s8 N. W. 531. 
 
 95. Hays V. Tacoma Ry. & Power 
 Co. (U. S. C. C. Wash.), 106 Fed. 
 48. 
 
 96. Molyneaux v. S. W. Mo. El. 
 R. Co., 81 Mo. App. 25.' The New 
 Hampshire statute, providing that 
 no person shall ride through any 
 street in a compact part of any 
 town at a swifter pace than at 
 the rate of five miles an hour, ap- 
 plies to a street railroad company 
 whose charter provides that the 
 road may be operated by such 
 power as may be authorized by 
 
308 STREET SURFACE RAILROADS. 
 
 And when the rate at which the car was going is disputed, or 
 the place of stopping at a crossing is in question, ordinances 
 and police regulations concerning these matters are admis- 
 sible to show the greater probability of the contention which 
 is in accordance with the ordinance.'^ But a statute, munic- 
 ipal, or other regulation can never justify negligence. If it 
 be provided that the street car shall at all times be entitled to 
 the track, and any vehicle thereon shall turn out upon its 
 approach so as to leave the track unobstructed, the driver of 
 a car is not justified in running down a person in a sleigh 
 near the track who makes no effort to get out of the way.'* 
 If all persons are forbidden to engage in any game or exer- 
 cise within a highway which shall interfere with the con- 
 venient use thereof, it does not lessen the care which the 
 motorman of an electric car is bound to use toward a child, 
 non sui juris, who is playing in the street.'' A limitation of 
 the rate of speed is not authority to run up to the limit 
 regardless of existing circumstances and conditions.' A 
 municipal ordinance may require a street railroad company 
 to run its cars every six minutes on a specified street, and it 
 will not be held unreasonable unless it is clearly made to 
 appear that the action of the council was capricious and 
 arbitrary and that the public convenience did not require cars 
 
 the mayor and aldermen, who have 97. Maisels v. D. D., etc., St. 
 
 the power to make such regula- R. Co., 16 App. Div. (N. Y.) 391; 
 
 tions as to the rate of speed as Stiasny v. Met. St. R. Co., 58 App. 
 
 the public safety and convenience Div. (N. Y.) 172, 68 N. Y. Supp. 
 
 require, where no regulations have 694. 
 
 been made by them in regard to 98. Laethan v. Fort Wayne & 
 
 speed. BIy v. Nassau St. R. Co., B. I. R. Co., 100 Mich. 297, 58 
 
 67 N. H. 474, 30 L. R. A. 303, 32 N. W. 996. 
 
 Atl. 764. And see Martineau v. 99. Budd v. Meriden EI. R. Co., 
 
 Rochester R. Co., 81 Hun (N. Y.), 69 Conn. 272, 37 Atl. 683. 
 
 263, 62 St. Rep. (N. Y.) 722, 30 I. Quincy Horse R. Co. v.. 
 
 N. Y. Supp. 778. Gnuse, 38 111. App. 212. 
 
COMPLIANCE WITH REGULATION. 3O9 
 
 to run so often.^ It may also require the car to come to a full 
 stop before a crossing.^ It may also require both driver and 
 ■conductor to accompany every street car.* If the municipal 
 ordinance be inconsistent with itself, for example, if it fix 
 eight miles an hour as the maximum speed for street cars 
 and also require street railroad companies to operate their 
 cars according to the provisions of their charter, a company 
 whose franchise provides that its cars may be run at a speed 
 greater than eight miles an hour is entitled to so run them, 
 since the franchise must be considered part of the charter.' 
 The Maine statute imposing a liability for injuries caused by 
 the negligence of the railroad company in erecting and main- 
 taining its poles, although they are erected in compliance 
 with city ordinances and its charter, is not abrogated by the 
 charter of a company creating a lien on all its property prior 
 to any mortgage in favor of the city to secure it against any 
 liability for injury to person or property occasioned by the 
 company's negligence.^ The rule in Tennessee applicable 
 in actions against street railroad companies for injuries re- 
 sulting from noncompliance with statutory regulations to 
 avoid accidents, that plaintifif's contributory negligence, how- 
 ever gross and proximate, will not bar his action, but only 
 
 2. People V. Detroit Citizens' St. Am. & Eng. R. Cas. (N. S.) 329, 
 R. Co., 116 Mich. 132, II Am. & 36 Atl. 678. 
 
 Eng. R. Cas. (N. S.) 798, 74 N. 4- South Covington & C. St. R. 
 
 W. 520, 16 Nat. Corp. Rep. 436, Co. v. Berry, 18 S. W. 1026, 15 
 
 4 Det. Leg. N. 1198; New York L. R. A. 604, 15 Am. & Eng. R. 
 
 V. N. Y. & H. R. Co., 10. Misc. Cas. 434, 6 Am. R. & Corp. Rep. 
 
 Rep. (N. Y.> 417, 31 N. Y. Supp. 258. 
 
 147, 63 St. Rep. (N. Y.) 530. And S- Ruskinburg v. So. El. R. Co. 
 
 see New York v. Union Ry. Co., (Mo.), 61 S. W. 626. 
 
 31 Misc. Rep. (N. Y.) 451, 64 N. 6. Cleveland v. Bangor St. R. 
 
 Y. Supp. 483. Co., 86 Me. 232, 29 Atl. 1005, 11 
 
 3. State, Cape May, etc., Co. v. Am. R. & Corp. Rep. 492, i Am. 
 City of Cape May, 59 N. J. L. (30 & Eng. R. Cas. (N. S.) 336. 
 Vroom) 404, 36 L. R. A. 657, 6 
 
3IO STREET SURFACE RAILROADS. 
 
 mitigate his damages, does not apply to a common-law action 
 against an electric railroad company for injuries in a col- 
 lision at a crossing.' The Missouri statute imposing a pen- 
 alty of $5,000 upon the death of any person from an injury 
 due to negligence, unskillfulness, or criminal intent of any 
 driver of any public conveyance, is applicable if a street-car 
 driver fail to obey a city ordinance i;equiring drivers to keep 
 a vigilant watch for all persons, especially children, on or 
 moving toward the tracks, as a result of which negligence a 
 child is killed.^ The Washington statute requiring persons 
 driving vehicles on a public highway to turn to the right on 
 meeting others is not applicable to persons meeting a street 
 car.5 A railroad company is not negligent simply because a 
 street car proceeds upon its left-hand track.'" If a statute 
 require notice of the time, place, and cause of an injury, occa- 
 sioned by the negligence of a street railroad company, to be 
 given to the company before action may be maintained 
 thereon, one driving on the highway and injured by the neg- 
 lect of a street railroad company to repair its road must give 
 such notice." 
 
 § 11. Municipal liability. — A municipality's liability for its 
 neglect to exercise care and supervision over electric wires 
 suspended upon and along its streets is not lessened by the 
 fact that individuals or corporations are subjected to a like 
 duty and liabiHty." And the municipality may be negUgent 
 
 7. Saunders v. City & S. R. 10. Altreuter v. H. R. R. Co. 
 Co., 99 Tenn. 130, 41 S. W. 1031, (N. Y. C. P.), 2 E. D. Smith, 151. 
 2 Chic. L. J. Wkly. 522. 11. Maloney v. Walic, 173 Mass. 
 
 8. Senn v. So. R. Co., 135 Mo. 587, 54 N. E. 349. 
 
 512, 36 S. W. 367. 12. Mooney v. Luzerne, 186 Pa- 
 
 9. Spurrier v. Front St. Cable St. 161, 41 Atl. 311. 
 R. Co., 3 Wash. 659, 29 Pac. 346. 
 
MUNICIPAL LIABILITY. 3 II 
 
 when the railroad corporation in the operation of its cars and 
 the use of its electric wires or cables is free from fault; for 
 example, a city had a derrick in use on a street whereon a 
 car line was being operated and had a cable attached to the 
 derrick extending across the railroad track to an engine. 
 When the cable was taut it was at an elevation above the car 
 track sufficient to allow the cars to pass under it ; and the city 
 had a flagman to give warning when it was dangerous to 
 pass under the cable and to signal the motorman when it was 
 safe to go forward; it being necessary however to lower the 
 trolley pole to prevent its coming in contact with the cable. 
 A car being signaled by the city's flagman to proceed, the 
 motorman obeyed the signal and the base of the trolley pole 
 caught the cable, dragged the derrick over and caused it to 
 fall upon a person, killing him. In an action against the 
 street car company to recover for the loss occasioned, it was 
 held that it was the duty of the city to keep the cable 
 stretched so defendant's cars could pass under it, and if the 
 accident occurred by reason of the cable being slack, or be- 
 cause of the city's flagman signaling the motorman to pro- 
 ceed when there was danger, the negUgence was not that of 
 the company, but of the municipality.'^ It has been held in 
 New York, that no recovery could be had against the city 
 because of an improper location or careless management of 
 a turntable by a street railroad company.'* 
 
 13. Baltimore Consol. R. Co. v. instead of being on the rear plat- 
 State, 91 Md. 506, 46 Atl. 1000. form to lower the trolley pole as 
 It was claimed that the conductor's the car passed under the cable, 
 omission to lower the trolley pole It was held however that this was 
 was the cause of the accident. It not negligence which would en- 
 appeared that he was in the for- able the plamtiff to reco.ver. 
 ward part of the car collecting I4- Fitch v. City of New York, 
 fares when the accident occurred, SS N- Y. Super. Ct. 494. 
 
312 
 
 STREET SURFACE RAILROADS. 
 
 § 12. Joint liability of the company with other individuals. — 
 
 If the negligence of another concur with that of the railroad 
 company in causing an accident, the one injured may main- 
 tain an action against the wrongdoers, jointly or severally.'' 
 In such action it is immaterial which one of the defendants 
 was the more culpable.'* If it be proved that one of them 
 was not negligent and the other was, the action may be dis- 
 missed as to the one, and judgment in favor of the plaintifif 
 may be rendered against the other shown to be negligent. '^ 
 If recovery be had against both, the judgment creditor is 
 entitled to but one satisfaction. An accord and satisfaction 
 
 15. Loudoun V. Eighth Ave. R. 
 Co., 162 N. Y. 380, 56 N. E. 988. 
 In the case cited, the court 
 charged that, in the absence of any 
 explanation, the accident (a col- 
 lision of street cars upon inde- 
 pendent lines at a crossing) re- 
 sulted from want of ordinary care 
 on the part of the defendants. 
 When the plaintifi rested her case 
 therefore the burden was upon the 
 defendants of showing such facts 
 as warrant the conclusion that the 
 accident was due to circumstances 
 which the exercise of ordinary care 
 could not foresee and guard against. 
 The instruction was held errone- 
 ous as against the company, upon 
 whose car the plaintiff was not a 
 passenger; that that defendant, 
 not being the carrier, was bound 
 only to the exercise of ordinary 
 care in the management of its 
 cars, and that no presumption 
 would obtain as against it from 
 the accident alone. Schneider v. 
 Second Ave. Ry. Co., 133 N. Y. 
 S8s. 30 N. E. 752; Tompkins v. 
 Clay St. Ry. Co., 66 Cal. 163; 
 
 Philadelphia & Reading R. Co. v. 
 Boyer, 97 Pa. St. 916; Georgia Pac. 
 Ry. Co. v. Hughes, 87 Ala. 610, 6 
 So. 413; Flaherty v. Northern Pac. 
 R. Co., 39 Minn. 328, 40 N. W. 
 160; Jackson & S. St. R. Co. v. 
 Simmons (Sup. Ct. Tenn.), 64 S. 
 W. 70s, 23 Am. & Eng. R. Cas. 
 236; Rahenkamp v. United Tract. 
 Co., 14 Pa. Super. Ct. 635. 
 
 16. Barrett v. Third Ave. R. Co., 
 45 N. Y. 628. The court said: 
 " If the acts of the defendant's 
 servants contributed to the injury, 
 the defendant must respond in 
 damages to the plaintifif, although 
 the negligent acts of the persons 
 in charge of the other car also 
 contributed to the same result, and 
 the comparative degree in the cul- 
 pability of the two will not aflect 
 the liability of either. If both were 
 negligent in a manner and to a 
 degree contributing to the result, 
 they are liable jointly and sever- 
 ally." (Page 631.) 
 
 17. Schneider v. Second Ave. R. 
 Co., 133 N. Y. 583, 30 N. E. 
 752. 
 
STREET CROSSINGS. 313 
 
 by, or a release or other discharge by the •voluntary act of 
 the party injured, of one, of two, or more tort feasors, is a 
 discharge of all.'* 
 
 § 13. Street crossings. — A street railroad company is under 
 no duty to stop its cars before reaching a public crossing, 
 for the purpose of looking and listening, when there is no 
 apparent reason for so doing. It is chartered for the benefit 
 of the public; the public require rapid transit, and if the 
 motorman, driving one of these cars, were compelled to stop 
 and look and listen for the approach of every vehicle likely 
 to cross the railway line, the public would be greatly incon- 
 venienced and rapid transit would be rendered impracti- 
 cable.'^ It owes a duty to the public which requires it to so 
 regulate the movement of its cars at the intersection of streets 
 as not to unnecessarily expose pedestrians or drivers of 
 vehicles to the danger of collision. For even a pedestrian has 
 equal rights in a street at a street crossing with a street car 
 company, and the latter owes him the duty of having its car 
 under control, or at least of giving warning of its approach, 
 . and it must operate the same with reasonable care at such 
 places.^" It should take special care to avoid collision with 
 children and aged and infirm persons on foot, whose infirmi- 
 
 18. Knickerbacker v. Colver, 8 Ry. Co., 5 Am. Electl. Cas. 499; 
 Cow. (N. Y.) hi; Livingston Shea v. St. Paul City Ry. Co., 
 V. Bishop, I Johns. (N. Y.) 290; 4 id. 481, So Minn. 395. 
 Bronson v. Fitzhugh, i Hill (N. 20. Towner v. Brooklyn Heights 
 Y.), 185; Ruble V. Turner, 2 Hen. R. Co., 44 App. Div. (N. Y.) 628, 
 & M. (Va.) 38. 60 N. Y. Supp. 289; Price v. 
 
 19. Savannah, Thunderbolt, etc., Charles Warner Co., i Penn. (Del.) 
 Ry. Co. V. Beasley, S Am. Electl. 462, 42 Atl. 699; Wallen v. North 
 Cas. 429, 430, 94 Ga. 142, 21 S. E. Chicago St. R. Co., 82 111. App. 
 285; San Antonio St. R. Co. v. 103; Wihnyk v. Second Ave. R. 
 Mechler, 87 Tex. 628, 30 S. W. Co., 14 App. Div. (N. Y.) 515, 43 
 899; Holmgren v. St. Paul City N. Y. Supp. 1023. 
 
3H 
 
 STREET SURFACE RAILROADS. 
 
 ties are plainly in evidence/" An electric car has no ex- 
 clusive or superior right of way over a horse car at a point 
 where the two lines intersect, or over any other vehicle at a 
 street intersection. Ordinarily it may be said that it is the 
 duty of the motorman or the driver of the car last afriving 
 at the intersection to stop and let the other pass.^^ That one 
 should stop and avoid a collision who can most easily and 
 readily adjust himself and his vehicle to the exigencies of the 
 case. And where the driver of an ordinary vehicle can do so- 
 the more readily, the motorman of an electric car has the 
 right to presume that such duty will be performed.^^ Xhe 
 driver of a horse car, in approaching a street intersection, is 
 justified in presuming that an approaching electric car about 
 to cross his track is moving within the maximum rate of 
 speed prescribed by law, and that its motorman will respect 
 his right as that of the first arrival at the crossing, if he be 
 such, either by slackening its speed or by coming to a full 
 stop.^* One nearing a street railway crossing at the inter- 
 
 21. Haight V. Hamilton St. R. 24. Met. R. Co. v. Hammett, 13 
 Co. (Div. Ct. Canada), 29 Ont. 279; App. D. C. 370. In Michigan it 
 Wallace v. City & S. R. Co., 26 is provided by law that "at all 
 Oreg. 174, 25 L. R. A. 663, 37 crossings of the tracks of two 
 Pac. 477. street railways, when a car on each 
 
 22. Met. R. Co. V. Hammett (D. road approaches such crossing at 
 C), 13 App. D. C. 370; Earle v. substantially the same time, the 
 Consol. Tract. Co. (N. J.), 46 Atl. car on the track first laid shall 
 613- have precedence and be entitled to 
 
 23. Helber v. Spokane St. R. the right of way." It is held how- 
 Co., 22 Wash. 319, 61 Pac. 40; ever that a street railroad com- 
 Becker v. Railroad Co., 121 Mich. pany because of this statute can- 
 S8o; Warren v. Mendenhall, yj not ignore a municipal ordinance 
 Minn. 145; Bernhard v. Rochester requiring a car to come to a full 
 R. Co., 68 Hun (N. Y.), 369, 51 stop before making the crossing, 
 St. Rep. (N. Y.) 880, 22 N. Y. and that a car does not have the 
 Supp. 821; McLaughlin v. New right of way until it stops in ac- 
 Orleans & C. R. Co., 48 La. Ann. cordance therewith. Becker v. De- 
 23. 18 So. 703. troit Citizens' St. Ry. Co. (Mich.), 
 
STREET CROSSINGS. 
 
 315- 
 
 section of streets, the view of which is impeded by vehicles,, 
 has the right to cross if, proceeding at a rate of speed which 
 under the circumstances of the time and locality is reason- 
 able, he would reach the point of crossing in time to safely 
 go on the tracks in advance of an approaching electric car, 
 the latter being sufficiently distant to be checked and, if need 
 be, stopped before reaching him.^s The car has no para- 
 mount right of way over a vehicle at the intersection of two 
 streets. Neither has a superior right to the other. The 
 right of each must be exercised with due regard to the right 
 of the other; and the right of each must be exercised in a 
 reasonable and careful manner, so as not to unreasonably 
 interfere with the right of the other.^^ In the absence of 
 
 80 N. W. 581. It was also held 
 that a car stopping twenty feet 
 from the crossing, when another 
 car on the track first laid was at 
 least 100 feet away, approaches the 
 crossing before the latter within 
 the meaning of this statute. Id. 
 When two cars — the one a cable 
 car — pass each other at a crossing 
 so that one passing behind one of 
 them is unable to see a car ap- 
 proaching on the other track, the 
 cable car company is not as matter 
 of law free from negligence. West 
 Chicago St. R. Co. v. Nelson, 70 
 111. App. 171. 
 
 25. New Jersey El. R. Co. v. 
 Miller, 39 N. J. L. (30 Vroom) 
 423, 36 Atl. 88s, 6 Am. & Eng. R. 
 Cas. (N. S.) 519; Scannell v. Bos- 
 ton El. Ry. Co., 176 Mass. 170, 57 
 N. E. 341; Cooney v. Southern 
 El. R. Co., 80 Mo. App. 226, 2 Mo. 
 App. Rep. 646; Chicago Gen. Ry. 
 Co. V. Carroll, 91 111. App. 3S6; 
 aflfd., 59 N. E. 551. One standing 
 upon a crosswalk between two 
 
 lines of tracks with the intention 
 of boarding an approaching car, 
 being struck by a car coming from 
 the opposite direction, is not pre- 
 cluded from recovering because of 
 his exposed position, where the 
 defendant's negligent failure to 
 check the speed of its car on Hear- 
 ing the crossing was the proxi- 
 mate cause of the accident. Boent- 
 gen V. N. Y. & Harlem R. Co.,^ 
 36 App. Div. (N. Y.) 460, 5 Am. 
 Neg. Rep. 431, 55 N. Y. Supp. 847. 
 26. O'Neil V. D. D., etc., Co., 
 129 N. Y. 125, 130, 29 N. E. 84,. 
 41 St. Rep. (N. Y.) 107; Huber 
 V. Nassau El. Ry. Co., 22 App. 
 Div. (N. Y.) 426, 48 N. Y. Supp. 
 38. See note to Hicks v. Citizens'' 
 R. Co. (Mo.), 25 L. R. A. 508; 
 Omaha St. R. Co. v. Cameron, 43 
 Nebr. 297, 6i N. W. 606; Johnson 
 V. Rochester Ry. Co., 70 N. Y. 
 Supp. 113; Shelly v. Brunswick- 
 Tract. Co. (N. J.), 48 Atl. 562 r 
 West Chicago St. R. Co. v. Ded- 
 loff, 92 111. App. 547; Hergert v.. 
 
.3i6 
 
 STREET SURFACE RAILROADS. 
 
 Statutory requirements therefor, the street railroad company 
 is not bound to erect signs or maintain flagmen or gates at 
 street crossings, although the? road is operated by cable or 
 electric power.^^ The driver of a car is negligent in whipping 
 up his horses just before reaching a street crossing over 
 which a boy is passing.^* If a car be standing still at the 
 crossing, receiving or discharging passengers, another car 
 passing must not unnecessarily expose pedestrians to the 
 danger of collision.^' Where car tracks cross side streets 
 they have no right of way over vehicles, and the driver of a 
 car is as much bound to attempt to avoid a collision as the 
 driver of a wagon. To constitute a street crossing, it is not 
 essential that a street opening from one side of an avenue 
 should be literally the continuation of one opening from the 
 other side, if it is in efifect a continuation.^" The duty of the 
 
 Union Ry. Co., 25 App. Div. (N. 
 Y.) 218, 49 N. Y. Supp. 307; 
 O'Rourke v. Yonkers R. Co., 32 
 App. Div. (N. Y.) 8, 52 N. Y. 
 Supp. 706. 
 
 27. Eckinglon & S. H. R. Co. 
 V. Hunter (D. C. App.), 23 Wash. 
 L. Rep. 401; Jacquin v. Grand 
 Ave. Cable Co., 57 Mo. App. 320; 
 Ott V. Kansas City, etc., R. Co., 
 58 Mo. App. 502. 
 
 28. Ellick V. Met. St. R. Co., 
 IS App. Div. (N. Y.) 556, 44 N. Y. 
 "Supp. 523; Fandell v. Third Ave. 
 R. Co., 15 App. Div. (N. Y.) 426, 
 44 N. Y. Supp. 462. 
 
 29. Consol. Tract. Co. v. Scott, 
 -6 Am. Electl. Cas. 516, 58 N. J. L. 
 
 (29 Vroom) 683, 34 Atl. 1094, 59 
 Am. St. Rep. 620, 4 Am. & Eng. 
 R. Cas. (N. S.) 371; Driscoll v. 
 Market St. Cable R. Co., 97 Cal. 
 SS3; Scott V. Third Ave. R. Co., 
 41 St. Rep. (N. Y.) 152. If an 
 
 electric car standing hear the 
 crossing is suddenly started and 
 collides with a wagon, the driver 
 of which started to cross the track 
 when the car was standing motion- 
 less and when neither the motor- 
 man nor the conductor were in 
 sight on the car, the company is 
 negligent. Piper v. Pueblo City 
 R. Co., 4 Colo. App. 424, 36 Pac. 
 iS8. 
 
 30. Brozek v. Steineway, 23 App. 
 Div. (N. Y.) 623, 48 N. Y. Supp. 
 345; Buhrens v. D. D., etc., Co., 
 S3 Hun (N. Y.), 571, 25 St. Rep. 
 (N. Y.) 191, 6 N. Y. Supp. 224; 
 Hulett V. Brooklyn Heights R. 
 Co., 63 App. Div. (N. Y.) 423, 71 
 N. Y. Supp. 531; Bresky v. Third 
 Ave. R. Co., 16 App. Div. (N. 
 Y.) 83. In the Hulett Case, supra, 
 the court said: "Though the 
 paramount right exists in the rail- 
 road company, yet where the rails 
 
BETWEEN STREET CROSSINGS. 3I7- 
 
 persons in charge of an electric car at a street crossing is not 
 suspended or in any way modified by the fact that the 
 crossing is at the end of a steep down grade ;3' or that a wash- 
 out has occurred on one side of the track, where it does not 
 appear how long such washout has existed. ^^ Failure to 
 sound a gong on approaching a crossing not in use by foot 
 passengers does not render the company liable for an injury 
 to one who suddenly runs on the track immediately in front 
 of the car some distance from the crossing.^^ 
 
 § 14. Route other than at street crossings. — A car may be 
 moved rapidly between street crossings, provided however 
 there is a vigilant lookout by those in charge of it. The cars 
 have the right to expeditiously transport passengers on the 
 surface of the streets, but that gives them no exclusive right 
 to the surface occupied by their tracks. Neither at crossings 
 
 pass a cul de sac, the exercise the entrance was such as war- 
 thereof must be commensurate ranted such vehicles, when man- 
 with the obvious difference be- aged with the same degree of care, 
 tween the unbroken part of a street to encroach temporarily upon the 
 and the part broken by the en- track while turning into the street 
 trance of a cul de sac, which is from the ad de sac, it would be 
 used by vehicles for access to the error for the court to refuse a re- 
 street. For though the vehicles quest to charge the jury that this, 
 cannot use the cul de sac to cross pafamount right must be exercised 
 the street, which necessarily is to with such ordinary and reasonable 
 pass over the rails, they may use prudence as was commensurate 
 it to enter the street, and there- with such circumstances. Such 
 fore the paramount right must be qualification would be proper be- 
 exercised with ordinary reason and cause the right is but paramount 
 prudence in view of this use and and not exclusive." (Page 427.) 
 the physical condition of the local- 31. Price v. Charles Warner Co., 
 ity. For example, if a motorman i Penn. (Del.) 462, 42 Atl. 699. 
 knew, or in the exercise of ordi- 32. Birmingham Ry. & E. Co. 
 nary care, prudence and experi- v. City Stable Co., 119 Ala. 615,. 
 ence ought to have known, that 24 So. 558. 
 
 at the locality in question vehicles 33. Kline v. El. Tract. Co., 181 
 
 were accustomed to enter the Pa. St. 276, 37 Atl. 522, 40 W. N.. 
 
 street, and that the condition of C. 337- 
 
3i8 
 
 STREET SURFACE RAILROADS. 
 
 nor between them is the public right relinquished. The fact 
 that more caution should be exercised in running over 
 crossings than on the streets between them warrants no in- 
 ference that the car can be run without caution except on 
 approaching crossings; in the one case, rapid running is of 
 itself evidence of negligence; in the other, it is not. If it be 
 run with comparative rapidity between crossings and not at 
 unlawful speed, the question of fact still recurs in any action 
 based on negligence, Did the motorman exercise care ac- 
 cording to the circumstances ?3* Pedestrians and drivers of 
 ordinary vehicles must use' reasonable caution to keep out of 
 the way of the car.^s But the railroad company is not author- 
 ized, either carelessly or recklessly, to injure other persons 
 along their route between crossings.^* And a driver may, 
 without negligence, attempt to cross a street railroad track 
 
 34. Evers v. Phila. Tract. Co., 
 "6 Am. Electl. Cas. 575, 578, 176 
 Pa. St. 376; Citizens' St. R. Co. 
 V. Howard, 102 Tenn. (52 S. 
 W.) 474; Hot Springs St. R. 
 Co. V. Johnson, 64 Ark. 420, 
 42 S. W. 833; Same v. Bert, 
 69 111. 388; Flewelling v. Rail- 
 road Co., 89 Me. 585, 36 Atl. 
 1056; Commonwealth v. Temple, 
 14 Gray (Mass.), 69 ; Moore v. Rail- 
 road Co., 126 Mo. 26s, 29 S. W. 
 9; Adolph V. Railroad Co., 76 N. 
 Y. 530; Atlantic Coast E. Ry. Co. 
 V. Rennard, 62 N. J. L. 773, 42 
 Atl. 1041, 6 Am. Neg. Rep. 125; 
 De Lon v. Kokomo City St. R. 
 Co., 22 Ind. App. 377, S3 N. E. 
 847, I Repr. losc 49 Cent. L. J. 
 7; West Chicago St. R. Co. v. 
 Dougherty, 89 111. App. 362. 
 
 35- Fenton v. Second Ave. R. 
 Co., 126 N. Y, 62s, 26 N. E. 967; 
 
 Ryan v. La Crosse City R. Co., 
 108 Wis. 122, 83 N. W. 770; Bethel 
 V. Cincinnati St. R. Co., 15 Ohio 
 C. C. 381, 8 O. C. D. 310; 
 Manayunk, etc., Co. v. Union 
 Tract. Co., 7 Pa. Super. Ct. 104, 
 42 W. N. C. 45; Rosenblatt v. 
 Brooklyn Heights R. Co., 26 App. 
 Div. (N. Y.) 600, so N. Y. Supp. 
 333; Ehrisman v. East Harrisburgh 
 City Pass. R. Co., 4 Am. Elect!. 
 Cas. 486, ISO Pa. St. 180, 17 L. 
 R. A. 448, 24 Atl. 596; Maxwell 
 V. Wilmington City R. Co., i 
 Marv. (Del.) igg, 40 Atl. 94s; 
 Smith V. El. Tract. Co., 187 Pa. 
 St. no, 42 W. N. C. 35 1, 40 Atl. 
 966. 
 
 36. Higgins V. Wilmington City 
 R. Co., I Marv. (Del.) 352, 41 Atl. 
 86; North Chicago St. R. Co. v. 
 Smadraff, 89 111. App. 411; affd., 
 59 N. E. 527. 
 
RIGHT OF WAY. 319 
 
 without waiting for the passage of a cable car which is in 
 sight, if there is reasonable opportunity to cross in front of 
 the car, although it may be necessary for the gripman to 
 slacken speed.^^ A driver may assume that it is safe for him 
 to drive into a street from a cellar which is being excavated, 
 where he is sixty-five feet from the point where the street 
 railroad curves into the street and no car is in sight.^^ 
 
 § 15. Right of way. — As has been stated, trolley cars and 
 the drivers of ordinary carriages have equal rights upon the 
 public streets and street crossings. The first to reach the 
 crossing has the right to pass over first ; but if it appears that 
 the motorman does not intend to respect this right of priority 
 and that the driver cannot, in the exercise of reasonable 
 prudence, insist upon his right, he is guilty of contributory 
 negligence if he fails to wait or turn aside, if he can do so by 
 the use of due care and thus protect himself from injury.^' 
 Of necessity, the street cars have a right of way over their 
 tracks, except at street crossings, which those traveling by 
 other means must respect; but the motorman must keep a 
 lookout and stop when it becomes apparent that a vehicle on 
 
 37. Kennedy v. Third Ave. R. 39. Earle v. Consol. Tract. Co. 
 Co., 31 App. Div. (N. Y.) 30, 52 (N. J.), 46 Atl. 613. And see West 
 N. Y. Supp. SSi; Lawson v. Met. Chicago St. R. Co. v. Maday, 88 
 St. R. Co., 166 N. Y. 589, 59 N. E. 111. App. 49; affd., 58 N. E. 933; 
 1 124, affg. 57 N. Y. Supp. 997, 40 Lanfer v. Bridgeport Tract. Co., 
 App. Div. (N. Y.) 307; Halliday 68 Conn. 475, 37 Atl. 379, 2 Chic. 
 V. Brooklyn Heights R. Co., 59 L. J. Wkly. 287. But see Lake 
 App. Div. (N. Y.) 57, 69 N. Y. Roland EL R. Co. v. McKewen, 
 Supp. 174; Witzell V. Third Ave. R. 80 Md. 593, 31 Atl. 797; Zimmer 
 Co., 3 Misc. Rep. (N. Y.) 561, 52 v. Third Ave. R. Co., 36 App. Div. 
 St. Rep. (N. Y.) 521, 23 N. Y. (N. Y.) 265, 55 N. Y. Supp. 308; 
 Supp. 317. Hall v. Ogden St. R. Co., 6 Am. 
 
 38. Walsh V. Atlantic Ave. R. Electl. Cas. 598; Gilmore v. Fed. 
 Co., 23 App. Div. (N. Y.) 19, 48 St., etc., Ry. Co., 4 Am. Electl. 
 N. Y. Supp. 343. Cas. 490, 153 Pa. St. 31. 
 
320 STREET SURFACE RAILROADS. 
 
 the track cannot be removed in time to prevent a collision.'*'* 
 The rules as to rights of way applicable to steam railroads 
 and travelers in the highway are not applicable to street rail- 
 roads and wagons driving along the streets of a city.'*' A 
 steam railroad has a right of way superior to that of a street 
 car when their tracks cross.''^ The rule of the highways re- 
 quiring drivers of vehicles to turn to the right when they 
 meet does not apply when a street car is one of the vehicles.''* 
 
 § 16. Ambulances, hose-carts, etc. — In many municipalities 
 the right of way between street cars and other vehicles, and 
 particularly hose-carts, ambulances, fire-engines, etc., is estab- 
 lished by ordinance, or in the charter or franchise granting 
 the railroad company the right to operate in the city streets. 
 Where a city ordinance provided that an " ambulance of the 
 department of health " should have the right of way in the 
 streets in an action to recover for injuries sustained in a 
 collision between an ambulance and a street car in which 
 plaintiff was a passenger, it was held that the ambulance, 
 which did not belong to the department of health, but was 
 under its jurisdiction, was not within the ordinance.'*'' Al- 
 
 40. Mertz V. Det. El. R. Co., 83 42. Du Bois Tract., etc., Co. v. 
 N. W. 1036, 7 Det. Leg. N. 393; Buffalo, etc., Co., 149 Pa. St. i, 24 
 Armsted v. Mendenhall (Minn.), Atl. 179. 
 
 8s N. W. 929; North Chicago El. 43. Brown v. Wilmington City 
 
 Ry. Co. V. Penser, 190 111. 67, 60 N. R. Co. (Super. Ct. Del.), i Penn. 
 
 E. 78; West Chicago St. R. Co. v. (Del.) 332, 40 Atl. 936, 12 Am. & 
 
 Schwartz, 93 111. App. 387; Wood- Eng. R. Cas. (N. S.) 439. 
 
 land V. North Jersey St. R. Co. 44. The court said there was no 
 
 (N. J. Sup.), 49 Atl. 479; Traver v. sufficient evidence here to establish 
 
 Spokane St. R. Co. (Wash.), 65 the fact that this ambulance was 
 
 Pac. 284; Central Pass. R. Co. within the ordinance. If the ordi- 
 
 V. Chatterson (Ky. Super. Ct.), 14 nance relates to all ambulances, 
 
 Ky. L. Rep. 663. there is no reason apparent why 
 
 41. Smith V. Met. St. R. Co., 7 general words should not be used 
 App. Div. (N. Y.) 253, 74 St. Rep. embracing all, for it is assumed that 
 (N. Y.) 706, 40 N. Y. Supp. 148. all the ambulances in use are in 
 
RIGHT OF WAY. 
 
 321 
 
 though these vehicles have the right of way, the driver 
 thereof must exercise reasonable care and prudence in driv- 
 ing across street railroad tracks. If he is negligent and is 
 injured as a result of the neghgence (combined with his own) 
 of the street car company in failing to respect the right of 
 way of his vehicle, he cannot recover.'^^ His rapid driving 
 however is not such contributory negligence as would pre- 
 clude him from recovering in the event of a colhsion and in 
 the absence of other negligence on his part.''^ A city ordi- 
 nance giving ambulances the right of way is admissible in an 
 action for injuries sustained by a street car colliding with an 
 ambulance, since the violation of the ordinance is some evi- 
 dence of negligence."*' One driving a sprinkling-cart, per- 
 mitting a wheel thereof to be on the street railroad track, 
 who frequently turns to see that no car is coming and listens 
 
 some sense under the jurisdiction 
 of the health department. Dillon 
 V. Nassau El. R. Co., 59 App. Div. 
 (N. Y.) 614, 68 N. Y. Supp. 1098; 
 Swain v. Fourteenth St. R. Co., 93 
 Cal. 179, 28 Pac. 829. 
 
 45. Birmingham R. Co. v. Baker 
 (Ala.), 28 So. 87. Knowledge by 
 the driver of a hose-cart that a 
 street car company has promised 
 to repair the track at a specified 
 place is a circumstance to be con- 
 sidered by the jury in determining 
 whether he used proper care in 
 attempting to cross it; but his re- 
 liance on such promise cannot de- 
 feat a defense of contributory neg- 
 ligence if he failed to exercise due 
 care. Houston City St. R. Co. v. 
 Richart, 87 Tex. 539, 29 S. W. 
 1040; Garrity v. Detroit Citizens' 
 R. Co., 112 Mich. 369, 70 N. W. 
 1018, zy L. R. A. 529, 4 Ohio Leg. 
 
 N. 46, 22 L. J. Wkly. 277. The 
 mere fact that while he is putting 
 on his belt a fireman sits in such 
 a position on the truck as to be 
 injured in a collision while passing 
 a street car, will not prevent a re- 
 covery for the injury. McGee v. 
 West End St. Ry. Co., 151 Mass. 
 240. Neither is a fireman negli- 
 gent in driving, with reasonable 
 care, over a street car track, in the 
 regular pursuit of his duties, al- 
 though he knew its dangerous 
 condition. Elyhen Land Co. v. 
 Mingea, 89 Ala. 521. But see 
 Smith V. Union R. Co., 61 Mo. 
 588. 
 
 46. Flynn v. Louisville R. Co. 
 (Ky.), 62 S. W. 490. 
 
 47. Buys v. Third Ave. R. Co., 
 45 App. Div. (N. Y.) II, 61 N. Y. 
 Supp, 113, 
 
 21 
 
322 STREET SURFACE RAILROADS. 
 
 for a bell, is not negligent so as to prevent his recovery for 
 injuries sustained by being thrown from the cart in a col- 
 lision with a car coming from behind when the only warning 
 of its approach was given 700 feet away; its speed was 
 accelerated, and there was no attempt to slacken speed until 
 within two or three car lengths of the wagon, when, by reason 
 of a defective appliance, the motorman was unable to stop."* 
 Responding to an alarm of fire, the driver of a salvage wagon, 
 driving perhaps fifteen miles an hour, is not so contributorily 
 negligent that he cannot recover for an injury resulting from 
 collision with a street car.''' 
 
 § 17. Obttmctingr street with cars. — In the absence of an 
 ordinance forbidding or regulating it, a street railroad com- 
 pany may permit its cars to stand for a reasonable time upon 
 the track, upon switches, or at either end of its route. In 
 the absence of other circumstances, such a temporary ob- 
 struction of the street is neither a nuisance nor a negligent 
 act. If however there be a penal ordinance forbidding it in 
 the municipality, then the obstruction, in violation of the 
 ordinance, is sufficient proof of negligence to make the com- 
 pany liable for damages if an injury be occasioned thereby. 5° 
 Whether the cars should have been permitted to stand on the 
 track in the street when they were not needed for carrying 
 passengers, is a question to be determined by the city au- 
 thorities; but the manner of leaving the cars and the place 
 where they were left are competent facts to be proven in any 
 
 48. Abrahams v. Los Angeles, stopped by the stopping of a car 
 124 Cal. 411, 57 Pac. 216. at a crossing. Mueller v. Milwau- 
 
 49. Flynn v. Louisville Ry. Co. kee St. R. Co., 86 Wis. 340, 21 L. 
 (Ky.), 62 S. W. 490. R. A. 721, 56 N. W. 914; Ford v. 
 
 50. As where one carriage is Charles Warner Co., i Marv. 
 injured by the pole of another in (Del.) 88, 37 Atl, 39. 
 
 a funeral procession suddenly 
 
RATE OF SPEED. 
 
 323 
 
 action in which it is claimed that the railroad company was 
 negligent in so obstructing the street.s" In violation of a 
 city ordinance making it an offense to willfully obstruct 
 streets by placing obstructions on a street car track, a street 
 •car company cannot confer valid authority or power upon an 
 individual, nor could any act of the company excuse or justify 
 a party's disregard of such ordinances^ The phrase " at each 
 end of the lines " as used in the charter of a street car com- 
 pany forbidding cars to remain standing on any of the 
 stations more than ten minutes, except " at each end of the 
 hnes," etc., means at each end of the tracks, and not at each 
 end of the run of particular cars.^^ 
 
 § 18. Rate of speed. — In nearly every State the municipal 
 authorities, by statute, are authorized to regulate the rate of 
 speed at which street cars should be operated upon the 
 surface of the municipal streets. Accordingly, nearly every 
 municipality has an ordinance upon the subject; and as it 
 has been shown, the violation of such an ordinance is some 
 proof of negligence. Ordinarily however the test of negli- 
 gence in the rate of speed is the speed at which a reasonable 
 and prudent man would have run the car under similar cir- 
 cumstances, and although the rate in a particular case might 
 not have been in violation of an ordinance or of a statute 
 regulation, it might be deemed negligent in view of the sur- 
 rounding circumstances.54 The violation of the ordinance 
 
 51. So held in an action for in- 52. State v. Pratt, 52 Minn. 131, 
 
 juries sustained by an infant hav- S3 N. W. 1069. 
 
 ing been run over by one of de- 53- Wilson v. Duluth St. Ry. 
 
 fendant's street cars left in the Co., 64 Minn. 363, dj N. W. 82, 
 
 street at the end of its line, and 4 Am. & Eng. R. Cas. (N. S.) 53. 
 
 around which the infant and his 54. Stafford v. Chippewa Val. E.^ 
 
 -companions were playing. George Ry. Co. (Wis.), 85 N. W. 1036; 
 
 V. Los Angeles Ry. Co., 126 Cal. Consolidated Tract. Co. v. Glynn, 
 
 JS7, 46 L. R. A. 829, 58 Pac. 819. 59 N. J. L. (30 Vroom) 432, 37 
 
324 
 
 STREET SURFACE RAILROADS. 
 
 regulating the speed is not sufficient negligence upon which 
 to maintain an action, unless such violation were the proxi- 
 mate cause of the injury.ss Running an electric car at an 
 unusually rapid rate over a much frequented crossing when 
 the usual rate of travel on the line is from twelve to fourteen 
 
 Atl. 66; Birmingham R. & E. 
 Co. V. City Stable Co., 119 Ala. 
 615, 24 So. 558; Ewing V. Toronto 
 R. Co. (C. P.), 24 Ont. 694; Har- 
 kins V. Pittsb. A. & M. Tract. Co., 
 173 Pa. St. 149, 33 Atl. 1045, 38 
 W. N. C. 163, 26 Pittsb. L. J. (N. 
 S.) 427; Newark Pass. R. Co. v. 
 Bloch, 55 N. J. L. (26 Vroom) 
 605, 27 Atl. 1067, 56 Am. & Eng. 
 R. Cas. 590, 22 L. R. A. 374; Gos- 
 nell V. Toronto R. Co. (Canada), 
 21 Ont. App. SS3. If the injury is 
 occasioned when the car is run at 
 a reckless rate of speed, the com- 
 pany is not relieved from liability 
 because the person injured was 
 prevented from pulling out of the 
 track by a wagon which was fol- 
 lowing a car on the adjoining 
 track, in the absence of evidence 
 of any improper conduct on the 
 part of the driver of such wagon. 
 Harper v. Phila. Tract. Co., 175 
 Pa. St. 129, 38 W. N. C. 349, 34 
 Atl. 356. Nor is it relieved by the 
 fact that a driver in front of the 
 street car, in his effort to avoid 
 instantaneous disaster, was com- 
 pelled to turn rapidly to the right, 
 and, while he succeeded in clear- 
 ing the track, he upset the cutter 
 in attempting to drive over a ridge 
 of ice and snow lying between the 
 track and the highway, whereby 
 one of the occupants of the cutter 
 was thrown out, struck by the step 
 or snow scraper on the rear end 
 
 of the car and killed. Countryman 
 V. Fonda, J. & G. R. Co., 166 N. 
 Y. 201, 59 N. E. .822; Walsh v. 
 Atlantic Ave. R. Co., 23 App. Div. 
 (N. Y.) J9. It cannot be said as 
 matter of law that a speed of two 
 and one-half miles an hour is not 
 negligence, if a street car's appli- 
 ances for stopping are defective. 
 Roberts v. Spokane St. R. Co., 23 
 Wash. 325, 63 Pac. 506. A street 
 car company is not culpably negli- 
 gent because its car was going 
 faster than the maximum speed al- 
 lowed by the city ordinance, where 
 the mules hitched to the car be- 
 came frightened at an engine and 
 started up a street and before they 
 had gone more than about fifty 
 yards a child ran in front of the 
 car only about three or four feet 
 in advance of the mules and so 
 near that the driver was unable to 
 avoid the collision. Trumbo v. 
 City St. Car Co., 89 Va. 780, 17 S. 
 E. 124, 17 Va. L. J. 207. And see 
 Francisco v. Troy & Lansingburgh 
 R. Co., 78 Hun (N. Y.), 13, 29 N. 
 Y. Supp. 247, 60 St. Rep. (N. Y.) 
 797- 
 
 55- Davidson v. Schuylkill Tract. 
 Co., 4 Pa. Super. Ct. 86; Reilly v. 
 Third Ave. R. Co., 16 Misc. Rep. 
 (N. Y.) II, 73 St. Rep. (N. Y.) 
 289, 37 N. Y. Supp. 593; Dederichs 
 V. Salt Lake City Ry. Co., 6 Am. 
 Electl. Cas. (Utah) 592. 
 
RATE OF SPEED. 
 
 325 
 
 miles per hour, constitutes negligence which is Httle less than 
 wanton and reckless disregard of human life.^* One crossing 
 
 56. Evansville St. R. Co. v. 
 Gentry, 147 Ind. 408, 44 N. E. 311, 
 37 L. R. A. 378, 5 Am. & Eng. R. 
 Cas. (N. S.) 500. The mere fact 
 of running such a car at the rate 
 of twelve or fifteen miles an hour 
 does not constitute negligence. 
 Bittner v. Crosstown St. Ry. Co., 
 153 N. Y. 76, 46 N. E. 1044; Cline 
 V. EI. Tract. Co., 181 Pa. St. 276, 
 40 W. N. C. 337, 37 Atl. 522; 
 Hughes V. Camden & S. Ry. Co., 
 6s N. J. L. 203, 47 Atl. 441. Par- 
 ticularly where the city ordinance 
 permits that rate of speed. White 
 V. Albany R. Co., 35 App. Div. (N. 
 Y.) 23, 54 N. Y. Supp. 44S. If it 
 appear that the accident occurred 
 while the car was running on a 
 down grade, in a populous part of 
 the city, at from fifteen to twenty 
 miles an hour, without signal, until 
 within forty or sixty feet of the 
 crossing, and that buildings ob- 
 structed the view of one crossing 
 and injured in the collision, the 
 company is negligent. Shea V. 
 St. Paul City R. Co., 4 Am. Electl. 
 Cas. 481, 7 Am. R. R. & Corp. 
 Rep. I, so Minn. 39s, S2 N. W. 
 902. It may be negligence to run 
 ten miles an hour through a street 
 crowded with children, where the 
 view in front of the car is unob- 
 structed, unless careful lookout be 
 kept. Buenta v. Pittsb. A. & M. 
 Tract. Co., 2 Pa. Super. Ct. 185. 
 
 The motorman of an electric car 
 is negligent in running his car at 
 such a rate of speed that: 
 
 On a dark night he cannot see 
 a wagon on the track in front of 
 the car in time to prevent a colli- 
 
 sion. Calumet El. R. Co. v. Lyn- 
 holm, 70 111. App. 371; Schwarz- 
 baum v. Third Ave. R. Co., S4 
 App. Div. (N. Y.) 164, 66 N. Y. 
 Supp. 367; United Ry. & El. Co. 
 v. Seymour (Md.), 48 Atl. 8so. 
 
 On a dark, windy, dusty night, 
 at a high rate of speed, without 
 having it properly lighted or 
 sounding the gong. Tompkins v. 
 Scranton Tract. Co. (Pa.), 3 Super. 
 Ct. S76. 
 
 It cannot be stopped within 100 
 feet after an alarm given. Cross 
 V. California St. Cable R. Co., 102 
 Cal. 313, 36 Pac. 373; Frank v. 
 Met. St. R. Co., S8 App. Div. (N. 
 Y.) 100. 
 
 With unreasonable overloading 
 it cannot be stopped as soon as 
 necessary to avert a collision. 
 Richmond Ry. & E. Co. v. Garth- 
 right, 92 Va. 627, 24 S. E. 267, 32 
 L. R. A. 220. 
 
 It cannot be stopped within the 
 distance covered by its head-light 
 while running along a narrow and 
 unlighted alley on a dark night. 
 Gilmore v. Federal St., etc., Ry. 
 Co., 4 Am. Electl. Cas. 490, 153 
 Pa. St. 31. 
 
 Injury was occasioned at a cross- 
 ing, the person in charge of the 
 motor not being on the lookout, 
 nor having the car under control, 
 nor using the proper means to 
 stop it. Watson v. Minneapolis 
 St. Ry. Co., 4 Am. Electl. Cas. 
 510, S3 Minn. SSi, SS N. W. 742. 
 
 Collision occurred in a cut, 
 which, in anticipation of a change 
 of grade, was made in a street in 
 such manner that persons driving 
 
326 
 
 STREET SURFACE RAILROADS. 
 
 street railroad tracks may assume that an approaching car 
 is propelled at a reasonable rate of speed; and if there be an 
 ordinance limiting the rate, that the ordinance is being com- 
 plied with." As matter of law, an electric street railroad 
 company is guilty of negligence in running a car at a speed 
 of forty-five miles an hour past platforms btiilt on either side 
 of a double track running east and west, connected by a 
 crosswalk running from the sidewalk on the north side of the 
 street, there being no sidewalk on the south side thereof, 
 and these platforms being frequently used by the pubHc, and 
 the usual speed of the cars at this point being twenty miles 
 per hour. 5^ A verdict in plaintiff's favor in an action against 
 
 along the street must drive upon 
 the track. Greeley v. Federal St. 
 & P. V. Pass. Co., 153 Pa. St. 218, 
 2S Atl. 796. 
 
 When he saw that a wagon on 
 which plaintiff was riding was not 
 able to get off the track in time to 
 avoid a collision; the wagon hav- 
 ing been in his view for some time. 
 Toledo Consol. St. Ry. Co. v. 
 Rohner (Ohio C. C), 6 O. C. D. 
 706. 
 
 In a collision on an ascending 
 grade, the horse, buggy, and occu- 
 pants collided with were carried 
 100 feet. Gress v. Braddock & H. 
 St. Ry. Co., 14 Pa. Super. Ct. 87. 
 
 The speed was twice that al- 
 lowed by law, and he failed to ap- 
 ply the brake in time to avoid 
 collision with a child crossing the 
 street thirty-five feet away. Huerz- 
 ler v. Central Crosstown R. Co., 
 I Misc. Rep. (N. Y.) 136, 48 St. 
 Rep. (N. Y.) 649, 20 N. Y. Supp. 
 676; affd., 139 N. Y. 490. 
 
 A rule of the company requiring 
 cars approaching a car discharging 
 
 passengers to slow up was vio- 
 lated, and a passenger who alighted 
 from a motor car and passed 
 around its rear was struck, the car 
 colliding with him being contealed 
 from his view and approaching at 
 full speed. Dobert v. Troy City 
 R. Co., 91 Hun (N. Y.), 28, 36 N. 
 Y. Supp. IDS, 71 St. Rep. (N. Y.) 
 392. 
 
 The wagon with which the car 
 collided was broken up, and the ad- 
 jacent grounds and plank in the 
 street torn up. Strauss v. New- 
 burgh E. R. Co., 6 App. Div. (N. 
 Y.) 264, 39 N. Y. Supp. 998. 
 
 57- Callahan v. Phila. Tract. Co., 
 184 Pa. St. 42s, 39 Atl. 222, 41 W. 
 N. C. 509; Saunders v. City & S. 
 R. Co., 99 Tenn. 130, 41 S. W. 
 1031, 2 Chic. L. J. Wkly. 522; 
 Fonda v. St. Paul City R. Co., 71 
 Minn. 438, 74 N. W. 166; South 
 Covington & C. St. R. Co. v. 
 Beatty, 20 Ky. L. Rep. 1845, So S. 
 W. 239, 6 Am. Neg. Rep. 75. 
 
 S8. Walker v. St. Paul City Ry. 
 Co., 81 Minn. 404, 84 N. W. 222, 
 51 L. R. A. 632. 
 
RATE OF SPEED. 32/ 
 
 a trolley company for running over a boy, on the ground that 
 the car was run at an excessive rate of speed, will be set aside 
 where the evidence as to the high rate of speed is vague and 
 unsatisfactory, and the evidence as to a proper rate of speed 
 is supported by the fact that the car was stopped within a 
 few feet after the motorman discovered the boy's peril.^s A 
 witness who is not an expert may testify whether a trolley 
 car was running fast or slow at the time of an accident.^" 
 He cannot testify that he saw a car " coming down at a ter- 
 rible speed," as it conveys to the jury no measurement of the 
 rate of the speed of the car, except that it was at such rate as 
 the witness disapproved.^' The New York Railroad Law, au- 
 thorizing municipalities to enact such reasonable ordinances 
 regulating the rate of speed as they may deem necessary, 
 limits the power so that a city will be enjoined at the suit of 
 a railroad company from enforcing a penal ordinance or 
 regulation of its common council limiting the speed of street 
 cars in the city streets to six miles an hour, if it appear that 
 such a speed was a detriment to the company and to its ser- 
 vice to the public; that the streets are wide, level, and com- 
 paratively straight, and that for several years no accident has 
 
 59. Graham v. Consol. . Tract. deavored to stop the car as soon 
 
 Co. (N. J. Sup.), 44 Atl. 964. A as he saw the horse's fright, and 
 
 special finding by a jury in an ac- did so at a point go or 100 feet 
 
 tion for injury to plaintiflf's wife to from the bridge, and 84 feet from 
 
 the efifect that she was injured by where plaintiff's wife was thrown 
 
 being thrown out of a buggy be- out, contradicts a general verdict 
 
 cause plaintiff's horse was fright- finding the company guilty of neg- 
 
 ened by defendant's car approach- ligence. Marion City Ry. Co. v. 
 
 ing a long covered bridge from Dubois, 23 Ind. App. 342, 55 N. 
 
 around a curve 800 feet distant E. 266. 
 
 therefrom at the rate of twelve 60. Ehrmann v. Nassau El. R. 
 
 miles an hour, and that the place Co., 23 App. Div. (N. Y.) 21. 
 
 was such as would be likely to 61. Chicago City Ry. Co. v. 
 
 frighten a horse of ordinary gentle- Wall, 93 111- App. 41 1, 
 ness; also that the motorman en- 
 
328 STREET SURFACE RAILROADS. 
 
 occurred from cars running through them at the rate of 
 twelve miles an hour/^ In 1879, the New York Court of 
 Appeals determined that a street car drawn by horses upon 
 a public street may not move over the rails at a rate of speed 
 faster than that ordinarily reached by horses drawing loads 
 of passengers, while the motive power is under such control 
 as easily to be slackened in speed and quickly stopped en- 
 tirely; so that others may also use the track, without risk of 
 harm, if all concerned are ordinarily prudent and careful.^^ 
 At the present time it would seem that such a rate of speed 
 for an electric or cable car would be unreasonably slow; but 
 even now, in crowded streets, the motive power must be kept 
 under such control as " easily to be slackened in speed and 
 quickly stopped entirely." Where it is charged that the neg- 
 ligence of the railroad company in propelling its cars at an 
 excessive rate of speed was jthe cause of the injury, defend- 
 ant's witnesses, testifying to the rate of speed, may be asked 
 as to the distance between the places through which the car 
 was to pass and between which the injury was occasioned, 
 and the schedule time for that length of run.^* 
 
 § 19. Frightening animals.— Street railroad companies are 
 bound to regard the rights of others in the use of the public 
 streets, yet they are not liable for accidents arising from 
 fright to horses caused by the usual operation of its road, if 
 its employees are free from negligence; and this must be 
 determined from the facts and circumstances in the case.^^ 
 
 €2. Union Tract. Co. v. Water- El. Ry. Co., 66 Pac. 306, 23 Am. 
 
 vliet, 3S Misc. Rep. (N. Y.) 392, & Eng. R. Cas. 69. 
 
 71 N. Y. Supp. 977. 65. Wachtel v. East St. Louis, 
 
 63. Adolph V. C. P., N. & E. R. etc., E. E.. Co., ^^ 111. App. 465; 
 R. Co., 76 N. Y. S30. North Side St. R. Co. v. Tippins 
 
 64. Cook V. Los Angeles & P. (Tex. App.), 3 Am. Electl. Cas. 
 
FRIGHTENING ANIMALS. 
 
 329 
 
 A motorman is not negligent in ringing the gong on his car 
 in a pubUc street a half dozen or a dozen times so as to 
 render the company liable for personal injuries resulting 
 from the fright of a horse caused thereby, where there was 
 nothing in the behavior of the horse prior to the accident 
 indicating it was frightened.*^ But if he sees that a horse is 
 frightened and injury imminent, it is his duty to refrain from 
 sounding his gong and to stop the car; to continue to sound 
 it under such circumstances would be such willful misconduct 
 as would render the company Hable for resulting injury. ^^ 
 He is not chargeable with negligence in failing to stop or 
 slacken the speed of his car upon discovering that a horse 
 approaching from the opposite direction is frightened, unless 
 
 489, 14 S. W. 1067; Eastwood v. 
 La Crosse City R. Co., 94 Wis. 
 163, 68 N. W. 651. In the case 
 last cited, it was held that an in- 
 ference of negligence is not jus- 
 tified from the motorman's failure 
 to stop the car upon seeing that a 
 gentle team about 175 feet in ad- 
 vance, driven by a full-grown man, 
 was beginning to prance, where 
 the team was on a well-traveled 
 road at the side of the track, nearly 
 sixteen feet in width, and was in 
 perfect safety, and there is no evi- 
 dence that it seemed to be beyond 
 the driver's control. Molyneux v. 
 S. W. Missouri El. R. Co., 81 Mo. 
 App. 25; Myers v. Branford St. R. 
 Co. (Canada), 27 Ont. App. 513. 
 If it appear that the plaintiff's 
 horse became frightened and 
 backed upon the track when a 
 motor car was 75 to 100 feet away, 
 and the plaintiff signaled the car 
 to stop or slacken speed, and the 
 motorman was looking in another 
 direction and did not slow up un- 
 
 til the collision, a verdict in plain- 
 tiff's favor will not be disturbed. 
 Geipel v. Steinway R. Co., 14 .'\pp. 
 Div. (N. Y.) SSI, 43 N. Y. Supp. 
 934- 
 
 66. Henderson v. Greenfield & 
 T. F. St. R. Co., 172 Mass. 542, 
 S2 N. E. 1080; East St. Louis, etc., 
 Ry. Co. v. Wachtel, 63 111. App. 
 181; Chapman v. Zanesville St. R. 
 Co. (C. P.), 27 Ohio L. J. 70; 
 North Side St. R. Co. v. Tippins 
 (Tex. App.), 14 S. W. 1065; Steiner 
 V. Phila. Tract. Co., 134 Pa. St. 
 199, 2 Am. R. & Corp. Rep. 43s, 
 19 Atl. 491. 
 
 67. Galesburg El., etc., Co. v. 
 Manville, 6 Am. Electl. Cas. 476, 
 61 111. App. 490; Lightcap v. Phila. 
 Tract. Co. (C. C. E. D. Pa.), 60 
 Fed. 212 If a motorman in charge 
 of an electric car, coming sud- 
 denly upon a woman and a little 
 boy with a horse and buggy, in 
 the narrow limits of a public street, 
 obstructed with building material, 
 instead of slackening his speed. 
 
33° 
 
 STREET SURFACE RAILROADS. 
 
 the circumstances indicate that the horse will be uncon- 
 trollable if the car approaches, and that the driver or the 
 persons with him are in imminent peril.^* If however the 
 horse appears to him to be refractory, he must manage the 
 car in such a way as to relieve the driver from his dilemma.*' 
 
 run by them, sounding the gong 
 without ceasing and thereby the 
 horse takes fright and runs away 
 injuring the woman and the prop- 
 erty, the street car company is 
 liable. Springfield Consol. Ry. Co. 
 V. Ankron, 93 111. App. 655. 
 
 68. Terre Haute El. R. Co. v. 
 Yant, 21 Ind. App. 486, 51 N. E. 
 732, I Repr. 181; Chapman v. 
 Zanesville St. R. Co., 27 Ohio L. 
 J. 70; Coughtry v. Willamette St. 
 R. Co., 21 Oreg. 245, 27 Pac. 1031; 
 Cornell v. Detroit El. R. Co., 82 
 Mich. 495, 46 N. W. 791; Doster 
 V. Charlotte R. Co., 117 N. C. 461, 
 34 L. R. A. 481, 23 S. E. 449; 
 Steiner v. Phila. Tract. Co., 134 
 Pa. St. 199, 19 Atl. 491; Flaherty 
 V. Harrison, 98 Wis. 559, 10 Am. 
 & Eng. R. Cas. (N. S.) 176, 74 
 N. W. 360. 
 
 69. Citizens' St. R. Co. v. Lowe 
 (Ind. App.), 5 Am. Electl. Cas. 
 436; Kankakee El. R. Co. v. Lade, 
 id. 431, 56 111. App. 454; Hair v. 
 Citizens' Ry. Co. (Tex. Civ. App.), 
 6 Am. Electl. Cas. 589, 32 S. W. 
 1050; Benjamin v. Holyoke St. R. 
 Co., 4 Am. Electl. Cas. 517, 160 
 Mass. 3; Ellis v. Lynn & Boston 
 Ry. Co., 4 Am. Electl. Cas. 531, 160 
 Mass. 341, 35 N. E. 1 127. In the 
 case last cited, it is said, regarding 
 the duties of the motorman: " It is 
 his duty, if he sees a horse in the 
 street before him that is greatly 
 frightened by the car, so as to 
 
 endanger his driver or other per- 
 sons in the street, to do what he 
 can in the management of his car 
 to diminish the fear of the horse; 
 and it is also his duty in running 
 the car to look out to see, whether 
 by frightening horses or other- 
 wise, he is putting in peril other 
 persons lawfully using the street 
 on foot or with teams. In this 
 way the convenience and safety 
 of everybody may be promoted 
 without serious detriment to any- 
 body. Of course, the owners and 
 drivers of horses are required at 
 the same time to use care in pro- 
 portion to the danger to which 
 they are exposed." Flewelyn v. 
 Lewiston & A. H. R. Co., 89 Me. 
 585, 36 Atl. 1056; Waechter v. 
 Second Ave. Tract. Co., 198 Pa. 
 St. 129, 47 Atl. 967; Lines v. Win- 
 nipeg El. St. R. Co., II Mani- 
 toba, 7y. In Nebraska, it was 
 held that the use of a steam engine 
 on a street railroad, on a street 
 constantly filled with persons on 
 horseback, and buggies, wagons, 
 and carriages, and which men, 
 women, and children used for busi- 
 ness, pleasure, or recreation, ren- 
 ders the street railroad company 
 liable for negligence resulting in 
 the frightening of a horse and in- 
 jury to the driver, even if the 
 charter of the company authorized 
 it to use steam power. Lincoln 
 R. T. Co. v. Nichols, 37 Nebr. 
 
FRIGHTENING ANIMALS. 
 
 331 
 
 The poles of a trolley line may be so placed in the street as 
 to amount to an unlawful obstruction, in view of the fact that 
 animals are likely to be frightened by the passing of the 
 electric cars and to shy, causing the vehicles being drawn 
 by them to collide with the poles. 7° The car itself may have 
 something upon it unusual, as where it has a sprinkler 
 attached upon which waving black coats are hung, then the 
 company must take reasonable care to prevent frightening 
 horses thereby, if the car be operated with knowledge that 
 the unusual things are there.''' In any case, the one claiming 
 to recover against the railroad company must establish to 
 the satisfaction of the jury that in the light of all the circum- 
 stances the motorman had not acted as a person of ordinary 
 prudence would have acted. '^ An electric street car is not 
 
 332, 56 Am. & Eng. R. Cas. 584, 
 55, N. W. 872, 20 L. R. A. 853; 
 Muncie St. R. Co. v. Maynard, S 
 Ind. App. 372, 32 N. E. 343. 
 
 In Georgia however it seems 
 that the use of a dummy engine on 
 a street railroad is not necessarily 
 negligent; and that a street rail- 
 road company is not liable where 
 an accident is caused by the sud- 
 den backward movement of the 
 car on a reversal of the engine at 
 about the same moment that the 
 conductor caused the brake to be 
 taken oflf, which some unauthor- 
 ized person had applied to the car, 
 neither the conductor nor the 
 engineer knowing what the other 
 was about to do, and when the 
 wagon with which the car collided 
 was brought upon the track by 
 the sudden fright of the team, 
 caused by the backing of the train. 
 Rome St. R. Co. v. McGinnis, 94 
 Ga. 229, 21 S. E. 707. 
 
 70. Cleveland v. Bangor St. R. 
 
 Co., 4 Am. Electl. Cas. 398, 86 
 Me. 232, 29 Atl. 1005. 
 
 71. McCann v. Consol. Tract. 
 Co., 59 N. J. L. (30 Vroom) 481, 
 38 L. R. A. 236, 7 Am. & Eng. 
 R. Cas. (N. S.) 280, 36 Atl. 888. 
 If in operating a car a loud and 
 unusual noise is produced, the 
 company is not liable for injuries 
 caused by a horse which took 
 fright thereby, unless it be shown 
 that the noise was unnecessary as 
 well as unusual. Hill v. Rome St. 
 R. Co., loi Ga. 66, 28 S. E. 631. 
 A street cardriver may be deemed 
 negligent in swinging his team 
 directly across the street at right 
 angles to the car, immediately in 
 front of an approaching vehicle, 
 without looking and listening, if 
 thereby the team become fright- 
 ened and run away. Sutter v. 
 Omnibus Cable Co., 107 Cal. 360, 
 40 Pac. 484. 
 
 72. Klatt V. Houston El. St. Ry. 
 Co. (Tex. Civ. App.), 57 S. W. 
 
332 
 
 STREET SURFACE RAILROADS. 
 
 such a defect or object within the Hmits of a highway calcu- 
 lated to frighten horses of ordinary gentleness as will render 
 the company liable for injuries due to the fright of a horse 
 thereby ;7^ and running without unnecessary noise made for 
 the purpose oi scaring the animal, if a mule become 
 frightened and runs away it does not make the company 
 liable for the resulting damages.''* The driver of a team is 
 not guilty of negligence as matter of law in driving on a 
 street occupied by an electric railroad causing noise calcu- 
 lated to frighten horses, particularly young horses, though 
 the space between the track and the retaining wall is narrow; 
 nor is he negligent as matter of law for not turning up a side 
 street when he sees his horses showing fright at an ap- 
 proaching car.'s But if he knows his horse is unaccustomed 
 
 II 12. A motorman who stops his 
 car to allow a funeral procession 
 to pass and starts it again before 
 all the wagons in the procession 
 have passed, may be deemed neg- 
 ligent if thereby a horse attached 
 to one of the wagons becomes 
 frightened and backs the wagon 
 in front of the car. Richter v. 
 Cicero & P. St. R. Co., 70 111. 
 App. 196. Where one claims his 
 horse took fright and ran away, 
 being struck by a piece of snow 
 or ice thrown from the sweeper of 
 a street railroad company, he must 
 furnish positive proof that the 
 piece of snow or ice came from 
 the sweeper, and also that the 
 sweeper was defective in design or 
 operated negligently. Connor v. 
 Met. St. R. Co., 48 App. Div. (N. 
 Y.) 580, 63 N. Y. Supp. S09. 
 
 73. Bishop v. Bell City St. R. 
 Co., 92 Wis. 139, 6s N. W. 733. 
 If the cars are negligently allowed 
 
 to stand on a bridge in the public 
 highway, evidence that other 
 horses had become frightened at 
 seeing them standing at the same 
 place where plaintiflf's horse took 
 fright is competent. San Antonio 
 E. Co. v. Beyer (Tex. Civ. App.), 
 57 S. W. 851. 
 
 74. Doster v. Charlotte St. R. 
 Co., 117 N. C. 651, 23 S. E. 449. 
 In the case cited, the court held, 
 that the company was not liable 
 unless the motorman saw the 
 frightened horse upon the track in 
 front of him, or ought to have 
 reasonably presumed that the 
 frightened horse was likely to 
 come on the track and collide with 
 the car. 
 
 75. Flewelyn v. Lewiston & A. 
 H. R. Co., 89 Me. 58s, 36 Atl. 1056; 
 Gibbons v. Wilkes-Barre & S. St. 
 R. Co., 155 Pa. St. 279, 26 Atl. 417. 
 S6 Am. & Eng. R. Cas. 600. 
 
COLLISION WITH TRAIN. 333 
 
 to electric cars, and knowing the dangers of such a course, 
 for the purpose of testing the animal, he drives him where he 
 knows electric cars will be met, he is guilty of contributory 
 negligence, which will prevent his recovery against the rail- 
 road company for injuries sustained by his horse taking 
 fright at the cars.''* The mere failure however to look for 
 approaching cars by one driving along the street in which 
 there is an electric street railroad will not prevent recovery 
 for injuries sustained by the horse being frightened by an 
 overtaking car and springing to one side.^' 
 
 § 20. Collision with steam train. — The legislature has power, 
 and in nearly every State it has used the power, to permit an 
 electric street railway company to cross a steam railroad at 
 grade without providing for compensation for injury to the 
 railroad company.'^ The right of way of steam railroads at 
 crossings is subject to the public easement, and the operation 
 of an electric street railway imposes no new burden ; and even 
 without an act of the legislature, if the street railroad com- 
 pany be authorized to occupy the street, it could cross the 
 steam railroad tracks at grade. ^^ Xhe high rate of speed and 
 the dangerous character of steam trains run over crossings 
 necessitate that such trains should have the right of way, to 
 
 76. Cornell v. Detroit El. Ry. road Law, as to ascertaining the 
 
 Co., 3 Am. Electl. Cas. 486, 82 compensation to be paid when two 
 
 Mich. 495, 46 N. W. 791, 46 Am. railroads intersect, applies to the 
 
 & Eng. R. Cas. 201. crossing of a steam railroad by an 
 
 TJ. Benjamin v. Holyoke St. R. electric street railroad. Port Rich- 
 Co., 160 Mass. 3, 35 N. E. 9S. mond, etc., R. Co. v. Staten Isl- 
 
 78. N. Y., etc., R. Co. v. and Ry. Co., 4 Am. Electl. Cas. 
 
 Bridgeport Tract. Co., S Am. 239, 71 Hun (N. Y.), 179, 24 N. 
 
 Electl. Cas. 246, 65 Conn. 410, Y. Supp. 566. 
 
 32 Atl. 953; Del., etc., R. Co. 79. Chicago, etc., Ry. Co. v. 
 
 V. Wilkes-Barre, etc., Ry. Co., Whiting, etc., Ry. Co., 5 Am. 
 
 4 Am. Electl. Cas. 237, 6 Kulp Electl. Cas. 236, 139 Ind. 297, 38 
 
 (Pa.), 342. The New York Rail- N. E. 604. 
 
334 STREET SURFACE RAILROADS. 
 
 be exercised in accordance with the requirements of law, and 
 imposes the duty upon the public, in the use of the highway, 
 as the railroad crossing is approached, to stop, look, and 
 listen, in order that the right of the railroad may be safely 
 accorded to it. But there is nothing in the right which other- 
 wise limits the use of the highway by the public, or restricts 
 the increase of the volume of that use, either in the manner 
 originally exercised or through conveniences which invention 
 may from time to time provide. It follows from the con- 
 clusion that the use of the street by the electric car, 
 as it is now usually operated, is within the purposes 
 for which the highway was created, that such car is 
 not to be excluded from the point in that highway where 
 the railroad may cross it. The persons controlling the car, 
 like other passers in the street, must conform with the re- 
 quirements which the railroad right imposes — stopping, if 
 necessary, looking, listening, and yielding the right of way.*" 
 Of course, where flagmen or other guards are kept at steam 
 railroad crossings, it cannot be maintained that it is negli- 
 gence, as matter of law, if the persons operating a street car, 
 
 80. West Jersey R. Co. v. Cam- until within 100 or 125 feet, when 
 
 den, etc., Ry. Co., s Am. Electl. he discovered that the train was 
 
 Cas. 137, 14s, 52 N. J. Eq. 31, backing toward the crossing and 
 
 29 Atl. 423. A motorman op- that a collision was likely to occur, 
 
 crating a car over the same and thereupon reversed his power 
 
 road for nearly two years prior and put on the brake of his car, 
 
 to the accident, familiar with but was unable, because of the de- 
 
 the use to which steam railroad fective condition of the brakes, to 
 
 tracks has been put for that time, prevent the collision, is contribu- 
 
 namely, for switching purposes, torily negligent and cannot recover 
 
 who, upon rounding a curve 750 against the steam railroad company 
 
 feet from the crossing, while his car for injuries caused to himself in 
 
 was traveling at the rate of twelve the accident. Einsfeld v. Niagara 
 
 miles an hour, saw a train standing Junction Ry. Co., 49 App. Div. 
 
 31s feet from the crossing and con- (N. Y.) 470, 63 N. Y. Supp. 563. 
 tinued at the same rate of speed 
 
COLLISION WITH TRAIN. 335 
 
 approaching the crossing, fail to look and listen.®' But in 
 Pennsylvania it has been held, that the driver of a street car 
 must stop, look, and listen, without regard to the action of 
 a flagman, if he have other sources of information which 
 would lead a prudent man to infer that there was danger to 
 be apprehended from an approaching train. ®^ The fact that 
 a street-cardriver has been directed by the company to obey 
 the signal of a flagman employed by the steam railroad com- 
 pany at a railroad crossing and governs the movement of 
 his car accordingly at that place, does not convert the flag- 
 man into an agent of the street railroad company so as to 
 make the latter responsible for his negUgence.^^ The crossing 
 of two railroads, where the cars thereon are propelled by 
 steam or electricity, presents a situation of danger calling 
 for the exercise of the highest degree of care and prudence 
 upon the part of the persons charged with the operation and 
 management of cars, engines, or trains, and no motorman or 
 engineer has any right to approach a crossing, under cir- 
 cumstances indicating danger of collision, without having his 
 motor or engine under perfect control.®'* When a street rail- 
 way company is constructing its road in accordance with its 
 charter powers, over a location designated by municipal au- 
 thority, and using or intending to use the safeguards pre- 
 
 81. Richmond v. Chicago & railroad company is liable for in- 
 West Mich. Ry. Co., 87 Mich. juries inflicted, through its negli- 
 374, 10 Ry. & Corp. L. J. 334, 49 gence, on a street car passenger, 
 N. W. 641. by 3- collision with the street car, 
 
 82. Philadelphia & Reading R. though the accident would not 
 Co. V. Boyer, 97 Pa. St. 91. have happened but for the con- 
 
 83. Chicago St. R. Co. v. Volk, tributing negligence of the em- 
 45 III. 175. ployees of the street railway com- 
 
 84. Einsfeld v. Niagara Junction pany. Chicago & E. I. R. Co. v. 
 Ry. Co., 49 App. Div. (N. Y.) Hines, 183 III 482, 56 N. E. 177. 
 470, 63 N. Y. Supp. 563. A steam 
 
336 STREET SURFACE RAILROADS. 
 
 scribed by statute, the court cannot, under its general equity 
 jurisdiction, compel it to use other or different safeguards.^5 
 
 § 21. Collision with other car. — Where two street cars meet 
 in a head-end collision on a single track, in the absence of 
 other evidence, negligence must be assumed.** If however 
 the collision is between cars operated by separate companies 
 and at the intersection of two separate railroad tracks, there 
 is no presumption of negligence which may be relied upon, 
 unless the plaintiff was a passenger upon one of the cars, in 
 which case the presumption is applicable against the street 
 railroad company which was his carrier.®^ In the absence of 
 any right of precedence, by usage or otherwise, cars of dif- 
 ferent companies at the intersection of street railway tracks 
 stand on a footing of equality, each lawfully using the public 
 street and each owing to the other the duty of exercising 
 reasonable care while doing so.** A gripman or motorman 
 is not relieved of the duty to exercise care and caution to 
 avoid a threatened collision with a car approaching on an 
 
 85. Old Colony R. Co. v. Rock- Div. (N. Y.) 466, 51 N. Y. Supp. 
 land & A. St. Ry. Co., 5 Am. 724; revd., 163 N. Y. 147. A 
 Electl. Cas. 233, 161 Mass. 416, 37 street car company cannot avoid 
 N. E. 370. liability for the neglect of its 
 
 86. Peterson v. Seattle Tract. duty to a passenger of another 
 Co. (Wash.), 63 Pac. 539; affd. on company whose line crosses its 
 rehearing, 65 id. 543; West Chi- own, because the other company 
 cago St. R. Co. V. Annis, 62 111. was also neglectful of its duty. It 
 App. 180. owes however to such passenger 
 
 87. Loudoun V. Eighth Ave. R. the duty only of using ordinary 
 Co., 162 N. Y. 380, S6 N. E. 988. care. O'Rourke v. Lindell R. Co., 
 The rule res ipsa loquitur applies to 142 Mo. 342, 9 Am. & Eng. R. 
 a case where a street car collides Cas. (N. S.) 675, 44 S. W. 254. And 
 with another which is being shifted see Taylor v. Grand Ave. R. Co., 
 at the foot of a descending grade 137 Mo. 363, 39 S. W. 88. 
 
 at the terminus of a road, and the 88. Met. St. R. Co. v. Kennedy 
 
 tracks are covered with snow. (C. C. App. 2d C), 51 U. S. App. 
 Kay V, Met. St. R. Co., 29 App. 503, 82 Fed. 158. 
 
1 
 
 COLLISION WITH OTHER CAR. 337" 
 
 intersecting line, although he has been signaled to proceed 
 by a watchman at the crossing, employed by the companies 
 jointly.®^ If, in obedience to a municipal ordinance, he has 
 made a stop required at a street intersection and attempts 
 to cross when an approaching car on the other railway has 
 not yet made the stop required of it, he is not guilty of con- 
 tributory negligence if the other car fails to stop and he is 
 injured in colliding with it.'° Great care is required of two 
 street railroads running within a few feet of each other, par- 
 ticularly if one company uses a motive power different from 
 that of the other. For example, the one a cable power, the 
 other animals. 9' But the carrier company cannot be held 
 liable for injury to a small child, who, in the custody of an 
 adult, was put off at their proper stopping place while a car 
 was approaching on a parallel track, and who ran against the 
 side of the approaching car.'^ An employee upon a street 
 car and in control of the motive power who may be at fault 
 in his relation to his employers or to other persons upon the 
 highway, will not be precluded from recovering for an injury 
 occasioned by a collision with a car coming in on an inter- 
 secting track and striking his car from the rear, if his negli- 
 gence was not contributory to the accident and its effect had 
 ceased and a condition of affairs quite disconnected from his 
 act existed at the time of the collision.^^ 
 
 89. Taylor v. Grand Ave. R^ Co., 93. Plaintiff was driving his car 
 137 Mo. 363, 39 S. W. 88. up the Bowery in New York, upon 
 
 90. Becker v. Detroit Citizens' a track used jointly by the Second 
 St. Ry. Co. (Mich.), 80 N. W. 581. Avenue Railroad Company, his 
 
 91. West Chicago St. R. Co. v. employer, and by the defendant,. 
 Yund, 68 111. App. 609; affd., 169 and approached Grand street pre- 
 111. 47, 48 N. E. 208. pared to turn eastwardly upon the 
 
 92. Schneidau v. New Orleans & tracks on that street — his regular 
 C. R. Co., 48 La. Ann. 855, 19 So. route. The approach of a Grand 
 918. street car upon the intersecting- 
 
 22 
 
338 STREET SURFACE RAILROADS. 
 
 I 22. Collision with animals, or other Tehieles. — The driver 
 of a vehicle in a public street traversed by a street railway is 
 bound to take notice of the conditions. He knows that the 
 street cars run in grooved tracks, and it is therefore impos- 
 sible for the driver or motorman to turn out to avoid col- 
 lision with an object on the track; that the only means of 
 avoiding collision is by stopping the car, and that this cannot 
 be done instantly. It is therefore negligence for the driver 
 of a carriage to suddenly turn directly in front of an approach- 
 ing car, whether the car be coming from the direction in 
 which he is driving or from the rear. In the absence of 
 something to excuse the performance of that duty, it is in- 
 cumbent upon the driver of such a vehicle, before attempting 
 to turn across the track, to take proper means of ascertain- 
 ing whether the way is clear, and this is especially true of an 
 attempt to turn across the track in the middle of a block, or 
 at any place other than a regular crossing.^* It is none the 
 
 track which he intended to use Atl. 516; North Side St. R. Co. v. 
 
 caused him to stop when on the Want (Tex.), 15 S. W. 40. 
 spur connecting the Bowery track It is the duty of the motorman 
 
 with the Grand street track, with in seeing a vehicle crossing the 
 
 the rear of his car overhanging the track seventy or eighty feet away 
 
 Bowery track. The Grand street to check the speed of the car, and 
 
 car passed in front of him, stopped, if necessary to stop it to avoid a 
 
 discharged and received many pas- collision, irrespective of the ques- 
 
 sengers, and had started when the tion whether or not the plaintiff's 
 
 defendant's car, approaching from intestate was guilty of contributory 
 
 the rear on the Bowery track, negligence. *But the testimony 
 
 crashed into the overhanging rear may justify the jury in finding that 
 
 platform of the plaintiff's car with the motorman did not exercise the 
 
 considerable force, and he was in- care and caution which he ought 
 
 jured. Tyler v. Third Ave. R. Co., to have exercised in preventing the 
 
 18 Misc. Rep. (N. Y.) i6s, 41 N. collision. If he might have stopped 
 
 Y. Supp. 523. the car and prevented the collision 
 
 94- Fritz v. Detroit Citizens' St. after he saw the vehicle about to 
 
 Tly. Co. (Mich.), 5 Am. Electl. Cas. cross the car tracks in front of him, 
 
 480, 483; McManigal v. South Side the negligence of the defendant 
 
 Pass. R. Co., 181 Pa. St. 358, 37 may have been established to the 
 
COLLISION WITH ANIMALS, ETC. 
 
 339 
 
 less his duty to observe such car because his load and posi- 
 tion upon it are such as to make it inconvenient to take such 
 precaution ;55 or because his view is so obstructed by other 
 things that he can only see twenty-five feet of the track, and 
 there is so much noise that the car or its signals cannot be 
 heard.'* In view of the inability of the cars to leave their 
 tracks, it is the duty of free vehicles not to obstruct them 
 unnecessarily, and to turn to one side when they meet them; 
 but, subject to that, and to the respective powers of the two, 
 a car and a wagon owe reciprocal duties to use reasonable 
 care on each side to avoid a collision. Neither has the right 
 to assume that the other will keep out of the way at its peril, 
 although the electric car has a right to demand that the 
 wagon shall not obstruct it by unreasonable delay upon the 
 
 satisfaction of the jury. It cer- 
 tainly would be his* duty to. check 
 the speed Of the car and stop it 
 in order to avoid a collision, irre- 
 spective of the question whether 
 or not the driver of the vehicle 
 was guilty of contributory negli- 
 gence. Bruss V. Met. St. R. Co., 
 66 App. Div. (N. Y.) 554; Lawson 
 V. Met. St. R. Co., 40 id. 307, 57 
 N. Y. Supp. 997; aflfd., 166 N. Y. 
 589; Kennedy v. Third Ave. R. 
 Co., 31 App. Div. (N. Y.) 30, 52 
 N. Y. Supp. SSI. 
 
 95. Blakeslee v. Consol. St. Ry 
 Co. (Mich.), 5 Am. Electl. Cas 
 486; Kennedy v. St. Paul City Ry. 
 Co. (Minn.), id. 492; Hickey v. St, 
 Paul City Ry. Co. (Minn.), id. 494, 
 
 96. Omslaer v. Pittsb. & B 
 Tract. Co., S Am. Electl. Cas 
 S68, 168 Pa. St. S19, 32 Atl 
 so; Van Patten v. Schenectady 
 St. Ry. Co., S Am. Electl. Cas. 
 520, 80 Hun (N. Y.), 494. He 
 is not guilty however of negli- 
 
 gence as matter of law, in assum- 
 ing that he could drive twenty- 
 eight feet to cross the track before 
 a car approaching him and 500 feet 
 away could reach him. Mackie v. 
 Brooklyn City R. Co., S Am. 
 Electl. Cas. 528, 10 Misc. Rep. 
 (N. Y.) 4, 30 N. Y. Supp. S39- 
 And see Decker v. Brooklyn 
 Heights R. Co., 64 App. Div. 
 (N. Y.) 430; Zimmerman v. Union 
 Ry. Co., 6 Am. Elect!. Cas. 527, 
 72 N. Y. Supp. 229, 3 App. Div. 
 (N. Y.) 219; Brozek v. Steinway 
 Ry. Co., 6 Am. Electl. Cas. S12, 
 10 App. Div. (N. Y.) 360, 41 N. Y. 
 Supp. 1017. And see McCormack 
 V. Nassau El. R. Co., 16 App. Div. 
 (N. Y.) 24, 44 N. Y. Supp. 684; 
 Lenkner v. Citizens' Tract. Co., 
 179 Pa. St. 486, 36 Atl. 228, 28 
 Pittsb. L. J. (N. S.) 11; Schron v. 
 Staten Island El. R. Co., 16 App. 
 Div. (N. Y.) Ill, 45 N. Y. Supp. 
 124. 
 
340 STREET SURFACE RAILROADS. 
 
 track. If the driver of the wagon did not know of the close 
 proximity of the car, and the motorman saw the wagon and 
 saw that the driver was proceeding in the ordinary way 
 around an obstacle and clearing the track with reasonable 
 speed, a jury might find that due care required the motorman 
 to move slowly, or stop, until the plaintifJ was out of the 
 way.57 The driver has the right to expect that the street 
 car will be managed with reasonable care and a proper re- 
 gard for the rights of others lawfully using the street; he 
 may therefore drive along the track in full view of a car ap- 
 proaching from the rear, and the fact that he so proceeds for 
 any distance will not charge him with contributory negli- 
 gence in case of a collision, if, under all the circumstances, 
 his conduct was consistent with ordinary prudence.'^ The 
 obligation of each — the driver and the one in charge of the 
 motive power of the car — is to use that degree of care 
 which a person of ordinary prudence acting under similar 
 circumstances would use; but it is not correct to say that 
 they are both bound to use the same degree of care and the 
 same degree of prudence, because the circumstances might 
 
 97. White V. Worcester Consol. Lefkowitz v. Met. St. Ry. Co., 26 
 St. R. Co. (Mass.), 6 Am. Electl. Misc. Rep. (N. Y.) 787, 56 N. Y. 
 Cas. 498, 499; Camden, etc., Ry. Supp. 215; McKelvey v. Twenty- 
 Co. V. Preston (N. J. App.), id. third St. R. Co., 5 Misc. Rep. (N. 
 523; Seifter v. Brooklyn H. R. Co., Y.) 424, 26 N. Y. Supp. 711; Petri 
 55 App. Div. (N. Y.) 10, 66 N. Y. v. Third Ave. R. Co., .30 Misc. 
 Supp. 1107; revd., 169 N. Y. 254; Rep. (N. Y.) 254, 63 N. Y. Supp. 
 Reid V. Met. St. R. Co., 58 App. 315. 
 
 Div. (N. Y.) 87, 68 N. Y. Supp. 98. Cohen v. Met. St. R. Co., 34 
 
 539; Saffer v. Westchester EI. R. Misc. Rep. (N. Y.) 186, 68 N. Y. 
 
 Co., 22 Misc. Rep. (N. Y.) 555, Supp. 830; Flannagan v. St. Paul 
 
 49 N. Y. Supp. 998; Mason v. Met. City R. Co., 68 Minn. 300, 71 N. 
 
 St. Ry. Co., 30 Misc. Rep. (N. Y.) W. 3791 Montgomery v. Johnson 
 
 108, 61 N. Y. Supp. 789; Reiss v. (Ky.), 58 S. W. 476, 22 Ky. L. Rep- 
 
 Met. St. Ry. Co., 28 Misc. Rep. 596. 
 (N. Y.) 198, 58 N. Y. Supp. 1024; 
 
COLLISION WITH ANIMALS, ETC. 34I 
 
 require the driver of the vehicle to be extremely careful and 
 the motorman to exercise ordinary care, or vice versa.^^ If 
 both exercise a judgment upon the question whether or not 
 a collision will occur and each is mistaken, then there is 
 mutual neghgence which will avoid a recovery.' But if the 
 wagon is left standing so near to the track that it is apparent 
 a car cannot possibly clear it, and the cardriver wantonly 
 runs against it, the company will be liable for the injury, 
 notwithstanding the prior negligence of the driver of the 
 wagon.^ The street car company having its car in perfect 
 condition, suitably equipped, operated with the use of proper 
 signals at a lawful rate of speed, by a motorman keeping a 
 sharp lookout, is not chargeable with negligence because of 
 inability to stop the car in time to prevent a colHsion with 
 the vehicle of one who suddenly drove on the track.^ One 
 who leaves a horse untied and unattended on a dark, stormy 
 night, in a narrow space between a street railroad track and 
 the street gutter, where a car with a headlight was liable to 
 approach at any moment at a rapid rate of speed, cannot 
 recover in case of a collision."* Where a wagon colhded with 
 
 99. Reardon v. Third Ave. R. Co., loi Wis. 14s, 77 N. W. 179, 
 
 Co., 24 App. Div. (N. Y.) 163, 12 Am. & Eng. R. Cas. (N. S.) 
 
 48 N. Y. Supp. 1005. 453; Lee v. Schuylkill Valley Tract. 
 
 1. As where one drove across a Co. (C. P. Pa.), 13 Mont. Co. L. 
 street car track and stopped, as he Rep. 91 ; Omaha St. Ry. Co. v. 
 believed, entirely out of the way Duvall, 5 Am. Electl. Cas. 502, 40 
 of the street car, and the side Nebr. 29, 58 N. W. S3i- 
 
 fender of the passing car struck 4. Hoffman v. Syracuse R. T. 
 
 and injured his wagon; it appear- Ry. Co., 50 App. Div. (N. Y.) 83, 
 
 ing that the driver of the car also 63 N. Y. Supp. 442. And see Mc- 
 
 thought a collision could be Cambley v. Staten Isl. M. R. Co., 
 
 avoided. Spaulding v. Jarvis, 32 32 App. Div. (N. Y.) 346, 52 N. Y. 
 
 Hun (N. Y.), 621. Supp. 849. Or where the injury 
 
 2. Koch V. St. Paul City R. Co., is caused by the sudden backing 
 4S Minn. 407, 48 N. W. 191. of the wagon into the car. Hig- 
 
 3. Cawley v. La Crosse City Ry. gins v. Wilmington City R. Co., 
 
342 STREET SURFACE RAILROADS. 
 
 a horse car lawfully running upon its track and a person in- 
 jured thereby recovers damages of the railroad company, the 
 latter may recover from the owner of the wagon for the 
 wrongful invasion of its road; and its damages are not 
 measured by the judgment recovered against it by the pas- 
 senger. ' A dog is not a trespasser in a highway, nor upon 
 a street car track which is laid in the highway on the same 
 level with it.* A motorman must use the care of a prudent 
 person to prevent running over him with his car; he cannot 
 rely upon the celerity of the dog.^ For a motorman, see- 
 ing dogs on the track ahead of his car, and high banks 
 of snow on either side so that the dogs could get ofif only 
 at certain cuts in the snow, to run down and kill one of 
 the dogs, making no effort at all to stop the car which was 
 going ten or twelve miles an hour, is clearly a wrongful and 
 negligent act.* But where there is no proof of negligence 
 on the part of the railroad company other than the fact that 
 the car was proceeding at an unusual rate of speed and a dog 
 got under the car and was killed in some unexplained way, 
 the owner cannot recover his value in an action against the 
 railroad company.' 
 
 I Marv. (Del.) 352, 41 Atl. 86; 100 Tenn. 317, 45 S. W. 790, 40 
 
 Gilmore v. Federal St., etc., R. L. R. A. 518. 
 
 Co., IS3 Pa. St. 31, 25 Atl. 651, 31 7. Dew Case, supra; Furness v. 
 
 W. N. C. 507, 23 Pittsb. L. J. (N. Union R. Co. (C. P. Pa.), 4 Pa. 
 
 S.) 438; Winter v. Federal St., etc., Dist. 784, 8 Kulp (Pa.), 103, i 
 
 R. Co., 4 Am. Electl. Cas. 498, 153 Lack. Leg. N. (Pa.) 332; West 
 
 Pa. St. 26, 19 L. R. A. 232, 25 Atl. Chicago St. R. Co. v. Klecka, 94 
 
 1028, 31 W. N. C. S'^S, 23 Pittsb. 111. App. 346. 
 
 L. J. (N. S.) 302; Coughtry v. 8. Meisch v. Rochester El. St. 
 
 Willamette St. R. Co., 21 Oreg. R. Co., 4 Am. Electl. Cas. 520, 72 
 
 245, 27 Pac. 1031. Hun (N. Y.), 604, 55 St. Rep. (N. 
 
 5. Chicago West Div. R. Co. v. Y.) 146, 25 N. Y. Supp. 214. 
 Rend, 6 111. App. 243. 9. Dettmers v. Brooklyn H. R. 
 
 6. Citizens' R. T. Co. v. Dew, Co., 22 App. Div. (N. Y.) 488, 48 
 
 N. Y. Supp. 23. 
 
COLLISION WITH PERSON. 
 
 343 
 
 § 23. Collision with persons on or near track. — It is the duty 
 of the person controlHng the motive power of a street car 
 which is overtaking another vehicle directly in line with its 
 progress and a possible obstacle in its way, to exercise care 
 that the car may be brought to a standstill, if necessary, be- 
 fore reaching such vehicle.'" One approaching to cross the 
 track at a sufificient distance from a car so that he has reason- 
 able ground to suppose that he may cross in safety may 
 assume that the servant in charge of the car will give him a 
 reasonable opportunity to cross." And a pedestrian or a 
 driver of a vehicle seeing a car approaching at what to him 
 seems to be a safe distance to allow him to cross, has a right 
 to assume that the car will be controlled, or at least that its 
 speed will be so slackened, as to give him time to cross. 
 Whether or not in attempting to cross he is guilty of negli- 
 
 10. Consol. Tract. Co. v. Hait, 
 S9 N. J. L. (30 Vroom) S77. 37 
 Atl. 13s; Baltimore Tract. Co. v. 
 Appel, 80 Md. 603, 31 Atl. 964; 
 Fishbach v. Steinway Ry. Co., 11 
 App. Div. (N. Y.) 152, 42 N. Y. 
 Supp. 883; Kessler v. Brooklyn 
 Heights R. Co., 3 App. Div. (N. 
 Y.) 426, 38 N. Y. Supp. 799; Cline 
 V. Crescent City R. Co., 43 La. 
 Ann. 327, 26 Am. St. Rep. 187, 
 9 So. 122; McGrane v. Flushing, 
 etc., R. Co., 13 App. Div. (N. Y.) 
 177. 43 N. Y. Supp. 38s; Brach- 
 feld V. Third Ave. R. Co., 29 Misc. 
 Rep. (N. Y.) 586, 60 N. Y. Supp. 
 988. A street car company is not 
 liable for the death of one lying 
 near the track, in a sparsely-set- 
 tled locality, not a crossing, in a 
 street not lighted nor used for 
 travel, there being a ditch on 
 each side of the car track, al- 
 though the motorman saw the ob- 
 
 ject lying on the track about 
 sixty-five feet ahead, at 10 o'clock 
 at night, which he and the pas- 
 sengers standing beside him 
 thought to be a dog; he at once 
 having applied the brakes and 
 sounded the gong, and on ap- 
 proaching a little nearer reversed, 
 but could not stop the car until 
 it ran upon and killed the man. 
 The motorman saw the object as 
 soon as it was possible to see it 
 from his position, under the cir- 
 cumstances. Stelk V. McNulta. 
 (U. S. C. C. A. 111.), 99 Fed. 138, 
 40 C. C. A. 357. And see Kramer 
 V. New Orleans City & L. R. 
 Co., SI La. Ann. 1689, 26 So. 411; 
 McKeon v. Steinway R. Co., 20 
 App. Div. (N. Y.) 601, 47 N. Y. 
 Supp. 374. 
 
 II. Lawson v. Met. St. R. Co., 
 40 App. Div. (N. Y.) 307, 57 N. Y. 
 Supp. 997. 
 
344 
 
 STREET SURFACE RAILROADS. 
 
 gence is, as a general proposition, a question of fact to be 
 determined by the jury; and it is only where it clearly appears 
 from the uncontradicted evidence that he has by his own act 
 contributed to the injury he has received, that the court is 
 justified in determining that question as one of law." Where 
 the driver of a carriage on a street, car track knows that a 
 car is approaching from behind, or is about to collide with 
 his carriage, it is his duty to do all he can to avoid the col- 
 lision; and it is no excuse that his back is to the approaching 
 car. '3 He is not excused from the duty of keeping a lookout 
 
 12. Cohen v. Met. St. R. Co., 
 63 App. Div. (N. Y.) i6s, 71 N. 
 Y. Supp. 268; Doyle v. West End 
 St. Ry. Co., S Am. Electl. Cas. 
 459, 161 Mass. 533, 37 N. E. 741. 
 In the case last cited it appeared 
 that the city ordinance required 
 cars to be stopped upon an appear- 
 ance of danger; and the plaintiff 
 was standing upon the track of an 
 electric street railroad in front of 
 an approaching car. It was held 
 that to some extent the motorman 
 would have the right to assume 
 that he would hear the gong and 
 take some other position; but 
 that the whole question was one 
 for the jury. Kostuch v. St. Paul 
 City Ry. Co. (Minn.), 81 N. W. 
 215. He may assume that the car 
 is furnished with appliances to re- 
 duce speed and to stop, and that 
 it will not continue to run in 
 violation of the law limiting the 
 speed. Consol. Tract. Co. v. 
 Lambertson, 59 N. J. L. (30 
 Vroom) 297, 36 Atl. 100; affd., 38 
 Atl. 683. One is not, as matter 
 of law, negligent in running upon 
 an electric railway track fifty feet 
 in front of an electric car, run- 
 
 ning at the rate of six miles an 
 hour, when necessary to get 
 around another vehicle. Blakeslee 
 V. Consol. St. R. Co., 112 Mich. 
 63, 70 N. W. 408, 29 Chic. Leg. 
 N. 257, 3 Det. Leg. N. 844. 
 
 13. McCann v. N. Y. & Q. C. 
 R. Co., 56 App. Div. (N. Y.) 419, 
 67 N. Y. Supp. 748; Devine v. 
 Brooklyn H. R. Co., 34 App. Div. 
 (N. Y.) 248, 54 N. Y. Supp. 626; 
 Johnson v. Brooklyn H. R. Co., 
 34 App. Div. (N. Y.) 271, 54 N. 
 Y. Supp. 547; Siek v. Toledo 
 Consol. St. R. Co., 16 Ohio C. C. 
 393, 9 O. C. D. 51 ; Maxwell 
 V. Wilmington City Ry. Co., i 
 Marv. (Del.) 199, 40 Atl. 945; 
 North Chicago St. R. Co. v. 
 Zeiger, 78 111. App. 463; affd., 182 
 111. 9, 54 N. E. 1006; Thoresen v. 
 La Crosse City R. Co., 94 Wis. 
 129, 6 Am. & Eng. R. Cas. (N. S.) 
 loi, 68 N. W. 548; Cass v. Third 
 Ave. R. Co., 20 App. Div. (N. Y.) 
 591, 49 N. Y. Supp. 356. When 
 within 100 feet of his destination, 
 a driver of a grocery wagon 
 looked back, but discovering no 
 approaching car, he stopped to de- 
 liver goods, and the car collided 
 
COLLISION WITH PERSON. 
 
 345 
 
 ioT cars approaching from behind because he looked before 
 entering the track and saw no car, and had reasonable ground 
 to suppose that there would be no car which would find it 
 necessary to pass along the track where he was driving. Nor 
 is he excused because he is in a covered carriage.''* Pro- 
 ceeding eastwardly, he is not negligent in turning upon the 
 west-bound track in order to avoid cars approaching on the 
 east-bound track — the space between the latter track and 
 the curbstone being occupied by a standing wagon; nor is 
 he negligent in continuing upon the west-bound track while 
 the necessity for so doing continues. '^ The ordinary driver. 
 
 with his wagon. Held, he was not 
 guilty of contributory negligence 
 as matter of law, because he 
 stopped without looking, where it 
 was not clear that the street was 
 wide enough to permit the vehicle 
 to stand between the curb and 
 the railroad and permit a car to 
 pass. Black v. Staten Isl. El. Ry. 
 Co., 40 App. Div. (N. Y.) 238, 57 
 N. Y. Supp. 1 1 12. An express- 
 man may unload his wagon, al- 
 though it is necessary to overlap 
 street car tracks, and the motor- 
 man who attempts to pass with- 
 out giving him a reasonable time 
 or any notice is negligent. Holz- 
 man v. Met. St. R. Co., 31 Misc. 
 Rep. (N. Y.) 644, 64 N. Y. Supp. 
 1 120. 
 
 14. Siek V. Toledo Consol. St. 
 R. Co., 16 Ohio C. C. 393, 9 
 O. C. D. SI. But the complaint 
 cannot be dismissed in an action 
 to recover damages for injuries 
 sustained, where a covered wagon 
 is overturned by a street car ap- 
 proaching from the rear without 
 warning. Warren v. Union R. 
 Co., 46 App. Div. (N. Y.) 517, 61 
 
 N. Y. Supp. 1009; Schilling v. 
 Met. St. R. Co., 47 App. Div. (N. 
 Y.) SCO, 62 N. Y. Supp. 403. 
 
 15. Murphy v. Nassau El. R. 
 Co., 19 App. Div. (N. Y.) 583, 45 
 N. Y. Supp. 283. And see Cannon 
 v. Pittsburg & B. Tract. Co., 194 
 Pa. St. 159, 4 Atl. 1089; Hunter 
 V. Third Ave. R. Co. (Sup. Ct. 
 App. Term, N. Y.), 21 Misc. Rep. 
 (N. Y.) I, 46 N. Y. Supp. loio. 
 
 It appeared that plaintifif was 
 driving a wagon southerly along 
 a street in Brooklyn on the right 
 track of a trolley railroad oper- 
 ated by defendant; just before 
 reaching a point opposite a store 
 on the left side of the street at 
 which he delivered some goods, 
 he proceeded to cross the left 
 track at a slow walk until only 
 the hind wheels of the wagon 
 were in line with the right track, 
 when the wagon was struck by a 
 car, plaintifif was thrown to the 
 ground and injured. The distance 
 of the car from him at the time 
 he reached the left track was esti- 
 mated to be from 75 to 200 feet. 
 Held, error to dismiss the com- 
 
346 
 
 STREET SURFACE RAILROADS. 
 
 it may be said, has the right of way in crossing a street car 
 track in advance of an approaching car, if, calculating reason- 
 ably from the standpoint of a person of ordinary care and 
 intelligence so stationed, he has sufficient time, proceeding 
 reasonably, to clear the track without retarding the move- 
 ment of the car, if its rate of speed is lawful; or, in the absence 
 of a statute or ordinance fixing the rate of speed, if it be 
 reasonable; and if it turn out that he has miscalculated, he is 
 not chargeable with want of ordinary care or with violating 
 any rights of the railroad company if it is compelled to retard 
 the car, or even stop it, to enable such person to cross the 
 track.'* If however it appear to him that the rate of speed 
 of the car is unreasonable or unlawful, he should take that 
 fact into consideration in determining the probability of his. 
 being able to clear the track and avoid collision.'^ A 
 
 plaint in an action to recover 
 damages for his injuries sustained 
 in the collision. Meyer v. Brook- 
 lyn, etc., R. Co., 47 App. Div. 
 (N. Y.) 286, 62 N. Y. Supp. 33. 
 It is too a question for the jury 
 upon a case showing that the in- 
 jury occurred by a collision 
 caused by the driver's attempt to 
 cross the tracks when the car was 
 a block distant and the wheel of 
 the wagon caught in the track. 
 Ludecke v. Met. St. R. Co., 32 
 Misc. Rep. (N. Y.) 635, 66 N. Y. 
 Supp. 483. 
 
 16. Tesch V. Milwaukee El. Ry. 
 Co., 108 Wis. 593, 84 N. W. 823; 
 Blate V. Third Ave. R. Co., 44 
 App. Div. (N. Y.) 163, 60 N. Y. 
 Supp. 732. 
 
 17. Tesch Case, supra. Seeing 
 a street car approaching 250 feet 
 away and driving on the track in 
 front of it for a considerable dis- 
 
 tance, making no attempt to ob- 
 serve its approach, is a negligent 
 act. Pechesky v. Met. St. R. Co., 
 30 Misc. Rep. (N. Y.) 432, 62 N. 
 Y. Supp. 478. And see Hill v. 
 Met. St. R. Co., 30 Misc. Rep. 
 (N. Y.) 440, 62 N. Y. Supp. 596; 
 Schausten v. Toledo Consol. St. 
 R. Co., 18 Ohio C. C. 691. It is 
 not as matter of law negligence 
 to drive so close to a street rail- 
 way track that a car approaching, 
 from the rear strikes the wagon, 
 where the driver looked in the di- 
 rection from which the car ap- 
 proached shortly before, and the 
 car was not in sight, and she 
 knew that she would be in sight 
 of a motorman approaching from 
 behind for more than half a 
 mile; that the cars ran only 
 each half hour, and the portion, 
 of the roadway which was ma- 
 cadamized and used by tht 
 
COLLISION WITH PERSON. 
 
 347 
 
 pedestrian who stands near a car track at night, upon a fre- 
 quented thoroughfare, giving no indication of an intention 
 to cross, and does not attempt to cross until a rapidly moving 
 car is so near him as to render it practically impossible to 
 prevent a collision, cannot recover damages for the injuries 
 sustained.'* Neither is the company Hable for injury to the 
 
 public was comparatively narrow. 
 Manor v. Bay City's Consol. R. 
 Co., ii8 Mich. I, 76 N. W. 139, 
 5 Det. Leg. N. 420. If there be 
 plenty of room outside there is no 
 justification however for one to 
 drive with the wheels of his 
 vehicle in one track of the rail- 
 road. Glazebrook v. West End 
 St. R. Co., 160 Mass. 239, 35 N. 
 E. 553. And see Davidson v. 
 Denver Tramway Co., 4 Colo. 
 App. 283, 35 Pac. 920. 
 
 A higher degree of care is re- 
 quired in crossing the tracks of 
 an electric street railroad than if 
 the cars thereon were drawn by 
 horses. Hawthorne v. Cincinnati 
 St. R. Co., 2 Ohio Dec. 548; Win- 
 ter V. Federal St., etc., R. Co., 153 
 Pa. St. 26, 19 L. R. A. 232, 25 Atl. 
 1028. The driver of a street car, 
 who instead of keeping his team 
 under control on approaching a 
 crossing at which there are two 
 women with babies in their arms 
 and four children, whom he could 
 have seen at a distance of fifty 
 feet, increases the" speed of his 
 horses and runs over one of the 
 children while crossing the track 
 in the same direction in which she 
 had been going, cannot be held to 
 be free from negligence as matter 
 of law. Wihnyk v. Second Ave. 
 R. Co., 14 App. Div. (N. Y.) giS, 
 43 N. Y. Supp. 1023. 
 
 18. Knoker v. Canal & C. R. 
 Co., 52 La. Ann. 806, 27 So. 279. 
 An intelligent eleven-year-old boy, 
 standing at night on the off side 
 of a down-town track of a street 
 railroad waiting for a car to pass 
 on the up-town track, is negligent 
 in stepping on the down-town 
 track twelve or fifteen feet in 
 front of an approaching down- 
 town car without looking. He 
 cannot recover for injuries sus- 
 tained by being struck after he 
 had tripped and fallen. O'Rourke 
 v. New Orleans City & L. R. Co., 
 51 La. Ann. 755, 25 So. 323. One 
 standing in a large crowd so near 
 a street railroad track as to be 
 hit by a passing car cannot re- 
 cover for his injuries sustained,, 
 where his failure to hear the ap- 
 proach of the car is due, not to 
 the negligence of the company, 
 but to the crowd; nor is the com- 
 pany negligent because it did not 
 stop the running of its trains for 
 the crowd, when the track was un- 
 obstructed, merely because the 
 crowd was near the track. Wash- 
 ington & G. R. Co. V. Wright,, 
 7 App. D. C. 295, 23 Wash. L.. 
 Rep. 844, 28 Chic. Leg. N. 155. 
 A street railroad company can- 
 not be held liable for the death 
 of a person who, on a clear night, 
 steps behind a cable car going in 
 one direction in front of another 
 
348 
 
 STREET SURFACE RAILROADS. 
 
 driver of a wagon who suddenly steps backward on the track, 
 although the presence of the wagon on the street imposes the 
 duty upon its servants managing the street car colliding with 
 the driver to proceed with caution.'' In an action to recover 
 for personal injuries against a street railroad company, based 
 upon the negligence of its servants in operating a street car, 
 the question is generally one of fact; and the defendant's 
 negligence is to be determined in the light of all the circum- 
 stances. Therefore care should be taken in instructing the 
 jury not to limit their consideration of this question of the 
 defendant's negligence to any one or more circumstances.^" 
 
 going in the opposite direction, 
 that other having a bright head- 
 light and being visible for a long 
 distance, although it was pro- 
 ceeding at a high speed and the 
 gripman had seen the person 
 standing at the side of the track 
 engaged in conversation, and had 
 then turned his head away. Scott 
 V. Third Ave. R. Co., 41 St. Rep. 
 (N. Y.) 152, 16 N. Y. Supp. 350, 
 19 Wash. L. Rep. 827. But where 
 the posts of an elevated road in 
 the streets compelled a woman to 
 stand within two feet of the de- 
 fendant's tracks in order to see 
 the cars approaching her street 
 crossing, and the fender upon a 
 car coming very rapidly and 
 without ringing a bell caught her 
 by the clothes and threw her down, 
 injuring her, a fair question as to 
 the negligence of the defendant 
 and her contributory negligence is 
 presented for the jury. G'Sell v. 
 Met. St. Ry. Co., 35 Misc. Rep. 
 (N. Y.) 387, 71 N. Y. Supp. 1020. 
 19. Gunn V. Union R. Co. (R. 
 I.), 47 Atl. 888. And see Bailey 
 V. Market St. Cable R. Co., no 
 
 Cal. 320, 42 Pac. 914. No neg- 
 ligence upon the part of the de- 
 fendant is shown where it ap- 
 peared that plaintiff, attempting to 
 cross street car tracks, passed be- 
 hind one car and in front of an- 
 other going in the opposite di- 
 rection, which was then about 
 twenty-five feet from her. She 
 then stepped back off the track 
 and noticed a truck going in the 
 opposite direction, which was then 
 almost on her; the motorman did 
 not stop the car, although he saw 
 the plaintiff, since there was noth- 
 ing to charge him with notice that 
 she was in a dangerous position 
 after she stepped back from the 
 track; the front of the car, appa- 
 rently, passed the plaintiff without 
 striking her. Mulligan v. Third 
 Ave. R. Co., 61 App. Div. (N. 
 Y.) 214, 70 N. Y. Supp. 530. 
 
 20. Plaintiff was driving about 8 
 o'clock in the evening, when it was 
 not yet quite dark, with other young 
 people, in an ordinary express 
 wagon, passing over an uncovered 
 bridge 300 feet long, on a street 
 in the city of Cohoes spanning 
 
COLLISION WITH WORKMEN. 
 
 349' 
 
 § 24. Collision with workmen upon street. — The rules of law 
 applicable to persons crossing steam or street railways, or 
 driving upon street railway tracks, do not apply either to 
 municipal or other employees necessarily at work upon the 
 street between or near the tracks. A street sweeper em- 
 ployed in the public service cannot exercise the same care 
 while in the street as an ordinary pedestrian can, but is bound 
 
 the south branch of the Mohawk 
 river. There was a roadway i6.S 
 feet wide for cars, and teams and 
 a girder truss upon each side of 
 the roadway; there was a car track 
 on the northerly side; the roadway 
 for teams was eight feet and one and 
 one-fifth inches, the running board 
 of the car projected southerly be- 
 yond the railroad sixteen and one- 
 half inches, the width of the wagon 
 from hub to hub, outside to out- 
 side, was five feet seven inches; 
 on the roadway, close to the 
 framework on the southerly side 
 was a guard-rail six inches wide, 
 four inches high; if the rims of 
 the south wheels of the wagon 
 were in contact with this guard- 
 rail, there would then be a space 
 of eleven and one-fifth inches be- 
 tween the northerly hub of the 
 wagon and the southerly edge of 
 the running-board of the car. 
 While crossing the bridge a car 
 of the defendant came up behind 
 the wagon and attempted to pass 
 by; in doing so, the running-board 
 on the southerly side of the car 
 collided with the hub of the north- 
 erly hind wheel of the wagon; the 
 wagon was suddenly pushed for- 
 ward about three feet and plain- 
 tiff thrown out. The court left 
 
 it to the jury to say whether or 
 not in itself it was a negligent act 
 on the part of the defendant's em- 
 ployees to attempt to pass the 
 wagon, considering the narrow- 
 ness of the bridge. It then 
 charged that if the car could have 
 safely passed had the horse and 
 wagon continued on the same 
 course they were proceeding, then 
 it was not negligence for the car 
 to be propelled at a reasonable 
 speed as it approached the wagon; 
 nor was it negligence, under those 
 circumstances, to attempt to pass 
 the wagon. The instruction was 
 held upon appeal to be erroneous, 
 since it excluded from considera- 
 tion the fact of the slight mar- 
 gin between the car and the- 
 wagon and the great risk there 
 might be of the horse swerving 
 or lurching, as the testimony 
 showed it did, toward the track; 
 and allowed the jury to think that 
 the defendant had the right to as- 
 sume that the horse would not, 
 by the noise of the car approach- 
 ing or other customary noises, be 
 startled or frightened in a way to 
 swerve the wagon toward the 
 track. Reilly v. Troy City Ry. 
 Co., 32 App. Div. (N. Y.) 131, 52: 
 N. Y. Supp. 611. 
 
350 
 
 STREET SURFACE RAILROADS. 
 
 to use reasonable care to avoid being- run over/' An em- 
 ployee of a city, engaged in laying water pipes under the 
 tracks of a street railroad, is lawfully in a trench dug for that 
 purpose, since the consent of the city to the occupancy of a 
 portion of the street by the railroad company does not 
 ■destroy its right to repair or construct public works.^^ A 
 
 21. Smith V. Bailey, 14 App. 
 Div. (N. Y.) 283; 43 N. Y. Supp. 
 856; Dipaolo V. Third Ave. R. Co., 
 55 App. Div. (N. Y.) 566, 67 N. Y. 
 Supp. 421- O'Connor v. Union Ry. 
 Co., (i7 App. Div. (N. Y.) 99. 
 In the case first cited it appeared 
 that the sweeper was injured 
 by jumping back from a car- 
 riage against the shaft of the de- 
 fendant's cart. The court charged, 
 in his action to recover for the 
 injuries, that he must show free- 
 dom from any negligence, and 
 that the negligence was entirely 
 the defendant's. Held, error; that 
 plaintiff was only required to show 
 freedom from negligence which 
 contributed proximately to the re- 
 sult. Brick V. Met. St. R. Co., 35 
 Misc. Rep. (N. Y.) 13s, 71 N. Y. 
 Supp. 314. Where the driver of 
 a car proceeded upon the signal 
 of the foreman of a contractor en- 
 gaged in laying sewer pipes in a 
 trench, under the supposition that 
 the pipes had been properly placed 
 a sufficient distance from the 
 track to allow his car to pass 
 without hitting, the company was 
 held not liable for an injury sus- 
 tained by colliding with a piece 
 of pipe which fell into the trench 
 and injured the plaintiff. The 
 court said: "A careful man is 
 guided by a reasonable estimate 
 of probabilities. His precaution is 
 
 measured by that which appears 
 likely in the usual course of 
 things. The rule does not require 
 him to use every possible pre- 
 caution to avoid injury to others. 
 He is only required to use such 
 reasonable precautions to prevent 
 accidents as would ordinarily be 
 adopted by careful, prudent per- 
 sons, under like circumstances. 
 He was not bound to measure the 
 distance and make sure that his 
 car would not hit the pipe." 
 Schmidt v. Steinway & H. B. R. 
 Co., 132 N. Y. s66, 43 St. Rep. 
 (N. Y.) 683, 30 N. E. 389. But 
 see McKeown v. Cincinnati St. R. 
 Co., 2 Ohio Leg. N. 388. 
 
 22. Owens V. People's Pass. R. 
 Co., 155 Pa. St. 334, 26 Atl. 744, 
 32 W. N. C. 313. An employee of 
 a gas company, engaged in laying 
 gas pipes in a trench along side a 
 street railway track, is as much 
 bound to the observance of ordi- 
 nary care to avoid injury from a 
 street car as any traveler. Young 
 V. Citizens' St. Ry. Co., 148 Ind. 
 54, 47 N. E. 142. And see 44 N. 
 E. 927. The railroad company 
 owes no greater duty to the em- 
 ployee of a contractor doing work 
 under the tracks of a cable road 
 than it does to any other person 
 in the street. Floettl v. Third 
 Ave. R. Co., 10 App. Div. (N. Y.> 
 308, 41 N. Y. Supp. 792, 75 St. 
 
COLLISION WITH WORKMEN. 
 
 351 
 
 ■municipal employee engaged in the repairing of a street, 
 carrying hot asphalt upon a shovel from the side of the rail- 
 way track and placing it between the rails thereof, is engaged 
 
 Rep. (N. Y.) 1191.. One who 
 knowing and appreciating a dan- 
 ger, voluntarily assumes the risk 
 of it, has not, if injured, a just 
 ground of complaint. Kinsley v. 
 Piatt, 148 N. Y. 372, 42 N. E. 986; 
 Miller v. Grieme, 53 App. Div. 
 {N. Y.) 276, 65 N. Y. Supp. 813. 
 So a bricklayer in the employment 
 of a corporation, engaged in lay- 
 ing conduit pipes for electric 
 wires along the line of a street 
 railroad, in a trench about four 
 feet deep and extending partially 
 tinder the railroad tracks, who in- 
 stinctively placed one of his hands 
 upon the track while a car was 
 passing over him, which he did 
 not discover until it had partially 
 passed over the trench, and was 
 thus injured, cannot recover 
 against the railroad company; and 
 the speed of the car was held not 
 important on the question of the 
 company's negligence; also held 
 that the testimony of plaintiff's co- 
 employees to the eflfect that they 
 did not hear the gong sounded, 
 and of the plaintiff himself that 
 it was not rung, was not sufficient 
 to carry the case to the jury as 
 against the testimony of the mo- 
 torman and conductor of the car 
 and two others, one of them a 
 passenger, to the effect that the 
 gong was sounded while the car 
 was passing over the trench. 
 Nolan v. Met. St. R. Co., 65 App. 
 Div. (N. Y.) 184. A workman 
 standing in an open trench under 
 a horse car track was killed while 
 attempting to avoid a horse which 
 
 stepped into the trench by a car 
 from which the horse was de- 
 tached and which was allowed to 
 go over the trench by its own 
 momentum. Held, in an action 
 against the railroad company to 
 recover for his death, that the 
 questions were for the jury. 
 Burns v. Second Ave. R. Co., 21 
 App. Div. (N. Y.) 521. Plaintiff 
 was engaged with others in push- 
 ing an iron beam, extending from 
 the street to a building being con- 
 structed, up out of the way. On 
 the approach of defendant's street 
 car, he raised his hand and called 
 the driver to stop; the latter looked 
 at him and took hold of the brake- 
 handle; plaintiff then turned to his 
 work; the car passed rapidly, 
 struck the beam, which plaintiff 
 testified was not more than about 
 an inch from the side of the car, 
 and injured the plaintiff. Held, that 
 his negligence was a question for 
 the jury. Weingarten v. Met. St. 
 Ry. Co., 62 App. Div. (N. Y.) 364, 
 70 N. Y. Supp. 1 1 13. A workman 
 is negligent who, knowing that 
 cars are constantly passing, at- 
 tempts to work in a space between 
 the track and a pile of building 
 material too narrow to permit the 
 cars to pass without colliding with 
 him, and takes no precautions for 
 his safety, but relies upon the 
 driver's watchfulness and the car 
 stopping in time to enable him to 
 escape injury. Ferguson v. Phila. 
 Tract. Co., 9 Pa. Co. Ct. 147, 47 
 Leg. Intel. 223. 
 
352 STREET SURFACE RAILROADS. 
 
 in the performance of a duty which requires him to be as long^ 
 as possible near or between the rails.^^ go is one engaged in 
 taking tar in a bucket from a vat near by where it was heated 
 and pouring it hot into the cracks between the stones com- 
 posing a street pavement adjacent to the rails of a street rail- 
 road company, compelled to get his head down to within 
 atTout two feet from the track in order to see that the tar 
 entered the cracks and did not overflow.^* A steam railroad 
 flagman, temporarily stationed at a street crossing where a 
 gate had broken down and obliged to stand in a narrow space 
 between the steam railroad track and the horse car track j^' 
 one at work near the car track digging a ditch in the street 
 for highway purposes and prevented from hearing a car by 
 other noises;^* these and others engaged in work which 
 required them, in the intervals between the moving cars, to 
 be upon the track and remain thereon many times until the 
 car comes very close to them, are not required, like travelers 
 upon the street, to look and listen. Of course they must 
 
 23. Bengivenga v. Brooklyn Iowa, 626, 67 N. W. 676. A fore- 
 Heights Ry. Co., 48 App. Div. man of a gang engaged in open- 
 (N. Y.) SIS, 62 N. Y. Supp. gi2. ing a drain between the tracks of 
 And see Anselment v. Daniell, 4 a trolley railroad is not necessarily 
 Misc. Rep. (N. Y.) 144, 53 St. Rep. negligent in attempting to remove 
 (N. Y.) 133, 23 N. Y. Supp. 875. a plank, one end of which was on 
 
 24. Lewis V. Binghamton R. Co., the track, while a car was ap- 
 35 App. Div. (N. Y.) 12, S4 N. Y. proaching; especially where the 
 Supp. 4S2. One stooping down to car had stopped some distance 
 adjust a plank over an excavation away and he did not know that 
 next to a street railway track, it was moving toward him. Mor- 
 without looking for an approach- rissey v. Westchester El. R. Co., 
 ing car, is guilty of such contribu- 18 App. Div. (N. Y.) 67, 45 N. Y. 
 tory negligence as will prevent a Supp. 444. 
 
 recovery for an injury from col- 2s. D'Oro v. Atlantic Ave. R. 
 
 lision with the car. Hafner v. St. Co., 37 St. Rep. (N. Y.) 411, 13 
 
 Paul City R. Co., 73 Minn. 2S2, N. Y. Supp. 789. 
 
 75 N. W. 1048. And see Eddy v. 26. Little v. Grand Rapids St. 
 
 Cedar Rapids & M. R. Co., 98 R. Co., 78 Mich. 205, 44 N. W. 137. 
 
COLLISION WITH WORKMEN. 
 
 353 
 
 exercise reasonable care to keep out of the way of the cars; 
 but the conditions surrounding them are such that the per- 
 sons operating the cars are required to exercise extreme care 
 to protect them and to give them abundant warning of a 
 car's approach. The car is also required to be under such 
 control as that it can be stopped practically upon the instant.^^ 
 Where an action is brought to recover damages resulting 
 
 2T. See cases above cited; Pittsb. 
 El. R. Co. V. Kelley, 57 Kan. 514, 
 46 Pac. 945. One killed by the 
 contributory negligence of the 
 company's employees while on the 
 track of an elevated road, either 
 as an employee of a contractor 
 with whom the company had con- 
 tracted, or as a licensee seeking 
 work from such contractor, is en- 
 titled to the same degree of care 
 and vigilance on the part of the 
 company as if he were actually 
 employed on the tracks. Wells v. 
 Brooklyn Heights R. Co., 34 
 Misc. Rep. (N. Y.) 44, 68 N. Y. 
 Supp. 305. A street cardriver 
 who sends his car at the rate of 
 six miles an hour past a trench 
 into which pipes have been in 
 process of lowering for several 
 days, close to the track, and which 
 is so dangerous that a watchman 
 has been placed on guard by the 
 street railroad company to see that 
 there are no obstructions, while 
 the watchman is temporarily ab- 
 sent, without looking for obstruc- 
 tions, is so negligent that the com- 
 pany will be liable to a workman 
 struck by a pipe whirled about by 
 the step of the car coming into 
 collision with its end. Lahey v. 
 Central Park, N. & E. R. R. Co., 51 
 
 23 
 
 St. Rep. (N. Y.) 589, 22 N. Y. 
 Supp. 380, 2 Misc. Rep. (N. Y.) 
 i,Z7- One who uses, controls, and 
 manages an electric current of 
 high destructive power in a place 
 where it is reasonably probable 
 that others must enter to work, 
 owes to each person who so en- 
 ters the duty to use reasonable 
 care to maintain a proper insula- 
 tion of such current. Anderson v. 
 Jersey City El. L. Co. (N. J.), 43 
 Atl. 6S4, 6 Am. Neg. Rep. 314; 
 Huber v. La Crosse City R. Co., 
 92 Wis. 636, 66 N. W. 708, 31 L. 
 R. A. 583; Atlanta Consol. St. R. 
 Co. v. Owings, 97 Ga. 663, 25 S. E. 
 zyy, 5 Am. & Eng. R. Cas. (N. S.) 
 I, 33 L. R. A. 798. It was held 
 in Massachusetts that a person 
 unlawfully engaged upon a street 
 for a telegraph company which 
 had not obtained a statutory 
 license for locating its wires 
 thereon, is so negligent that he 
 cannot recover for an injury oc- 
 casioned by negligence of a street 
 railroad company. Banks v. High- 
 land St. Ry. Co., 136 Mass. 485; 
 Houston City St. Ry. Co. v., 
 Woodlock (Tex. Civ. App.), s 
 Am. Electl. Cas. 581. And see 
 Laschinger v. St. Paul City Ry. 
 Co. (Minn.), 87 N. W. 836. 
 
354 STREET SURFACE RAILROADS. 
 
 from the death of a street sweeper, he having been struck 
 by a rapidly approaching street car which gave no notice 
 of its approach until it was within ten feet of him, it is com- 
 petent to prove that from time to time, at intervals of a 
 minute or so, he looked for the approach of cars upon the 
 track upon which he was working, and that he was doing 
 his work in the usual and proper way, and such proof is 
 sufficient to warrant a finding that he exercised all the care 
 that was required of him under the circumstances.^'^ 
 
 Contributory Negligence. 
 § 26. Contributory negligence generally. — One about to 
 cross the track of a street surface railroad at a street crossing 
 must exercise care proportionate to the danger to be avoided 
 and the consequences which might result from want of care, 
 according to the particular circumstances surrounding him; 
 but he needs to use such caution only as may reasonably be 
 expected of persons of ordinary prudence.^* It will not do 
 to say that a recovery can be defeated because of an omission 
 to do what he ought to have done under the circumstances, 
 which omission directly contributed to the accident.^' Less 
 care is required than in crossing steam railroads.^" He is 
 bound to look before entering upon the track, that is, he can- 
 not heedlessly enter upon it.^*^ One attempting to cross the 
 
 27^. O'Connor v. Union Ry. M. & F. Pass. R. Co., 194 Pa. St. 
 
 Co., 67 App. Div. (N. Y.) 99. 570, 45 Atl. 322; Ponsano v. St. 
 
 28. Cincinnati St. R. Co. v. Snell, Charles St. R. Co., 52 La. Ann. 
 
 54 Ohio St. 197, 35 Ohio L. J. 245, 26 So. 820. 
 
 140, 43 N. E. 207, 32 L. R. A. 276; 29. Roberts v. Spokane St. Ry. 
 
 West Chicago St. R. Co. v. Dough- Co., 23 Wash. 325, 63 Pac. 506. 
 
 erty, 89 111. App. 362; Chicago City 30. Orr v. Cedar Rapids & M. 
 
 R. Co. V. Fennimore, 78 id. 478, 3 C. Ry. Co. (Iowa Sup.), 5 Am. 
 
 Chic. L. J. Wkly. 520; Scannell v. Electl. Cas. 445. 
 
 Boston El. Ry. Co., 176 Mass. 170, 31. Dummer v. Milwaukee El. 
 
 57 N. E. 341; Walsh V. Hestonville, Ry. & L. Co., 108 Wis. 589, 84 
 
CONTRIBUTORY NEGLIGENCE. 
 
 355 
 
 track at a point other than at a street crossing, immediately 
 behind a moving car on the track nearest to him, is so neg- 
 ligent that he cannot recover for an injury in a collision with 
 a car approaching from the opposite direction on the other 
 
 N. W. 853; Watkins v. Union 
 Tract. Co., 194 Pa. St. 564, 45 Atl. 
 _S2i; Citizens' R. Co. v. Holmes, 
 19 Tex. Civ. App. 266, 46 S. W. 
 116; Quinn v. Brooklyn City R. 
 Co., 40 App. Div. (N. Y.) 608, 57 
 N. Y. Supp. S44; McClelland v. 
 Chippewa Val. El. Ry. Co. (Wis.), 
 25 N. W. 1018; Snider v. New Or- 
 leans & C. R. Co., 48 La. Ann. i, 
 18 So. 69s ; Newark Pass. R. Co. v. 
 Bloch, 4 Am. Electl. Cas. 523, 55 
 N. J. L. (26 Vroom) 605, 56 Am. 
 & Eng. R. Cas. 590, 27 Atl. 1067, 
 22 L. R. A. 374; Omaha St. Ry. 
 Co. V. Loehneisen, 40 Nebr. 37, 58 
 N. W. 535; Canedo v. New Or- 
 leans & C. R. Co., 52 La. Ann. 
 2149, 28 So. 287; McCawley v. 
 Phila. Tract. Co., 13 Pa. Super. Ct. 
 354. A woman was held to be so 
 negligent as to defeat a recovery, 
 where in crossing a street covered 
 with snow at a crosswalk on a 
 "highway, she was struck while mid- 
 way of the tracks by a car ap- 
 proaching at its ordinary speed of 
 fifteen to eighteen miles an hour, 
 its gong being sounded and it hav- 
 ing been in plain sight when she 
 left the sidewalk, and she having 
 looked in the direction from which 
 it was coming just before she 
 •started to hurriedly cross the street. 
 Mathes v. Lowell, L. & H. St. Ry. 
 Co., 177 Mass. 416, 59 N. E. 77. 
 And see Brown v. Pittsb., A. & M. 
 Tract. Co., 14 Pa. Super. Ct. 594. 
 Where it appeared that at 6 o'clock 
 •on a winter's morning the car 
 
 which struck the plaintiff's wagon 
 was running on the down-town 
 track going up town, without dis- 
 playing a headlight or ringing a 
 bell, or giving any special notice 
 of its approach to a dangerous 
 street intersection, and plaintiff's 
 driver testified that he looked up 
 the track, or " down the track, 
 rather, toward Myrtle avenue, in 
 the line, in fact, the car should be 
 coming; and I didn't notice no 
 car," and he then drove on over 
 the crossing, the car striking his 
 wagon near the rear end; it was 
 held that he need not swear that 
 he looked every instant of the time, 
 or while passing over every foot 
 of the ground, since it was not 
 customary to find a car upon that 
 track coming in that direction. 
 Stevens Co. v. Brooklyn Heights 
 R. Co., 59 App. Div. (N. Y.) 23, 
 68 N. Y. Supp. 1088. And see 
 Cooke V. Baltimore Tract. Co., 80 
 Md. 551, 31 Atl. 327. Testimony 
 of witnesses that they looked for 
 an approaching car and did not 
 see one, though one was in plain 
 sight and so near as to render an 
 attempt to cross the track danger- 
 ous, is inconsistent with all reason- 
 able probabilities and is not suffi- 
 cient to authorize a submission of 
 an issue as to the near approach 
 of the car as a disputed question 
 of fact. Stafford v. Chippewa Val. 
 El. R. Co. (Wis.), 85 N. W. 1036. 
 And see Bornscheuer v. Consol. 
 Tract. Co., 198 Pa. St. 332, 47 Atl. 
 
356 
 
 STREET SURFACE RAILROADS. 
 
 track.3^ Driving in a carriage on the track, knowing that a 
 car is approaching from behind and is about to collide with 
 his carriage, it is his duty to do all he can to avoid the col- 
 lision ; and it is no excuse that his back is to the approaching 
 car. He must drive off the track without loss of time.^^ If 
 in a covered carriage and he does not know that a street car 
 is approaching on the track whereon he is, and while he is 
 turning into a cross-street, he is not negligent as matter of 
 law if he fail to look behind him.^* He need not anticipate 
 
 872; McQuade v. Met. St. R. Co., 
 17 Misc. Rep. (N. Y.) 154, 39 N. 
 Y. Supp. 335; Curry v. Rochester 
 R. Co., 90 Hun (N. Y.), 230, 70 
 St. Rep. (N. Y.) 146, 35 N. Y. 
 Supp. 543. One has no right to 
 turn suddenly in a covered wagon 
 across a car track, away from a 
 crossing, without assuring himself, 
 by proper investigation, that a car 
 is not coming. Fritz v. Detroit 
 Citizens' St. R. Co., 105 Mich. 50, 
 62 N. W. 1007, 2 Det. Leg. N. 
 19. Where his wagon is loaded 
 with trunks piled in such a manner 
 that his view in the direction from 
 which the car is approaching is cut 
 off, he is negligent if he suddenly 
 turns upon the track, although he 
 listens for the gong. Roth v. Met. 
 St. R. Co., 13 Misc. Rep. (N. Y.) 
 213, 68 St. Rep. (N. Y.) 113, 34 
 N. Y. Supp. 232. 
 
 Plaintiff, while driving along the 
 track of an electric street railway, 
 attempted to cross to a narrow 
 passage on the other side consti- 
 tuting a temporary road around an 
 excavation; he did not look for a 
 car and knew that it was a dan- 
 gerous place, and undertook to 
 cross back, when the car was 
 
 within a few feet of his wagon; a 
 collision resulted, which the motor- 
 man did all in his power to pre- 
 vent. Held, a recovery cannot be 
 had. Christensen v. Union Trunk 
 Line (Wash.), 32 Pac. 1018. And 
 see Bailey v. Market St. Cable R. 
 Co., no Cal. 320, 42 Pac. 914; 
 Meyer v. Brooklyn Heights R. Co., 
 6 Am. Electl. Cas. 540, 9 App. Div. 
 (N. Y.) 79. 
 
 32. Greengard v. St. Paul City 
 R. Co., 72 Minn. 181, 75 N. W. 221. 
 
 33. Morrissey v. Bridgeport 
 Tract. Co., 68 Conn. 215, 35 Atl. 
 1126; McCann v. N. Y. & Q. C. 
 Ry. Co., 56 App. Div. (N. Y.) 419, 
 67 N. Y. Supp. 748; N. Y. Con- 
 densed Milk Co. V. Nassau El. Ry. 
 Co., 29 Misc. Rep. (N. Y.) 127, 
 60 N. Y. Supp. 234. One who 
 voluntarily walks at night on a 
 street railroad track, with full 
 knowledge that the car may come 
 up behind him at any moment, 
 cannot recover damages for an in- 
 jury if, by ordinary care, he might 
 have learned of the approach of 
 the car. Smith v. Crescent City 
 R. Co., 47 La. Ann. 733, 17 So. 302. 
 
 34- Cohen v. M. St. Ry. Co., 34 
 Misc. Rep. (N. Y.) 186. 
 
CONTRIBUTORY NEGLIGENCE. 
 
 357 
 
 negligence on the part of those operating the railway.^s So 
 a passenger on one of the defendant's street cars alighting 
 therefrom at a crossing, passirig behind it to cross the other 
 track, and when going on the track seeing a car approaching 
 about fifty feet away which could have been stopped in 
 twenty-five feet, has the right to assume from the distance of 
 the car that it would be controlled or so slackened as to give 
 him time to cross, and is not negligent as matter of law.^* 
 But one who starts to drive his team across a street but a 
 short distance in front of a rapidly approaching car is so 
 negligent that he cannot recover damages in case of a col- 
 lision.37 He must be entirely free from negligence con- 
 
 35. Schausten v. Toledo Consol. 
 St. Ry. Co., i8 Ohio C. C. 691; 
 Citizens' R. T. Co. v. Seigrist, 6 
 Am. Electl. Cas. 583, 96 Tenn. 119, 
 33 S. W. 920. 
 
 36. Cohen v. M. St. Ry. Co. (N. 
 Y. Sup. Ct. App. Div.), 26 N. Y. 
 L. J. 89; Lang v. Houston, W. S. 
 & P. F. R. Co., 75 Hun (N. Y.), 
 151, 58 St. Rep. (N. Y.) 594, 27 
 N. Y. Supp. 90; Smith v. City & 
 S. R. Co., 29 Oreg. 539, 546; 46 
 Pac. 136, 780, 5 Am. & Eng. 
 R. Cas. (N. S.) 163. And see 
 Schwarzbaum v. Third Ave. R. 
 Co., 60 App. Div. (N. Y.) 274, 69 
 N. Y. Supp. 1095. But a person 
 of mature age is negligent, as mat- 
 ter of law, if passing behind the 
 one car, where the tracks are five 
 feet apart, there is no obstacle pre- 
 venting her from seeing the car 
 with which she collided on the 
 further track had she looked for 
 it after the first car had passed. 
 McCarthy v. Detroit Citizens' R. 
 Co. (Mich.), 79 N. W. 631, 6 Det. 
 Leg. N. 210. 
 
 37. Bornscheuer v. Consol. 
 Tract. Co., 198 Pa. St. 332, 47 Atl. 
 872; Reid v. Met. St. R. Co., 58 
 App. Div. (N. Y.) 87, 68 N. Y. 
 Supp. 539; Cincinnati St. Ry. Co. 
 V. Jenkins, 20 Ohio C. C. 256, il 
 O. C. D. 130; Hannon v. North 
 Jersey St. Ry. Co. (N. J. Sup.), 
 47 Atl. 803; Schlitz V. Nassau El. 
 R. Co., 44 App. Div. (N. Y.) 542, 
 60 N. Y. Supp. 822; Griffith v. 
 Denver Consol. Tramway Co., 14 
 Colo. App. 504, 61 Pac. 46; Tyson 
 ,v. Union Tract. Co. (Pa.), 48 Atl. 
 1078; Jager v. Coney Isl. & B. R. 
 Co., 84 Hun (N. Y.), 307, 65 St. 
 Rep. (N. Y.) 539, 32 N. Y. Supp. 
 304; Clancy v. Troy & L. R. Co., 
 88 Hun (N. Y.), 496, 34 N. Y. 
 Supp. 877; Rohe V. Third Ave. R. 
 Co., 10 Misc. Rep. (N. Y.) 740, 
 64 St. Rep. (N. Y.) 500, 31 N. Y. 
 Supp. 797. But this rule that it 
 is negligence to drive across a 
 street railroad track in front of an 
 approaching car cannot be rigidly 
 applied where a vehicle is run into 
 by a street car on a track crowded 
 
358 
 
 STREET SURFACE RAILROADS. 
 
 tributing to the result.^^ If the car be, say lOO feet away 
 and not approaching with unusual speed, he may perhaps 
 assume that he can cross the track in front of it with safety. 
 It would be for the jury to determine upon all the circum- 
 stances.39 If he be driving along the track and a trolley car 
 
 with cars. Kelley v. Brooklyn 
 Heights R. Co., 12 Misc. Rep. (N. 
 Y.) 568, 67 St. Rep. (N. Y.) 604, 
 33 N. Y. Supp. 851; Hamilton v. 
 Third Ave. R. Co., 6 Misc. Rep. 
 (N. Y.) 382, s6 St. Rep. (N. Y.) 
 397, 26 N. Y. Supp. 754. 
 
 38. Luedecke v. Met. St. Ry. 
 Co., 60 N. Y. Supp. 999; Lorickio 
 V. Brooklyn H. R. Co., 44 App. 
 Div. (N. Y.) 628, 60 N. Y. Supp. 
 247; Boesen v. Chicago El. T. Co., 
 31 Chic. Leg. N. 371. 
 
 39. Cass V. Third Ave. R. Co., 
 20 App. Div. (N. Y.) 591, 47 N. Y. 
 Supp. 356; Mackie v. Brooklyn 
 City R. Co., 10 Misc. Rep. (N. Y.) 
 4, 62 St. Rep. (N. Y.) 6S3, 30 N. 
 Y. Supp. 539; Nicholsburg v. Sec- 
 ond Ave. R. Co., II Misc. Rep. 
 (N. Y.) 432, ^^ N. Y. Supp. 130, 
 6s St. Rep. (N. Y.) 273; Kerr v. 
 Atl. Ave. R. Co., 10 Misc. Rep. 
 (N. Y.) 264, 63 St. Rep. (N. Y.) 
 310, 30 N. Y. Supp. 1070; McNulta 
 v. Norgren, 90 111. App. 491 ; Lowy 
 V. N. St. Ry. Co., 30 Misc. Rep. 
 (N. Y.) 775, 62 N. Y. Supp. 743; 
 Davidson v. Schuylkill Tract. Co., 
 4 Pa. Super. Ct. 86; Schron v. 
 Staten Isl. El. R. Co., 16 App. Div. 
 (N. Y.) Ill, 45 N. Y. Supp. 124; 
 Armsted v. Mendenhall (Minn.), 
 85 N. W. 929; Mowbray v. Brook- 
 lyn Heights R. Co., 59 App. Div. 
 (N. Y.) 239, 69 N. Y. Supp. 435; 
 Lawson v. M. St. Ry. Co., 40 App. 
 Div. (N. Y.) 307, 57 N. Y. Supp. 
 997; affd., 166 N. Y. 589, 59 N. E. 
 
 1 124; Citizens' R. T. Co. v. Sei- 
 grist, 96 Tenn. 119, 33 S. W. 9204 
 Reiley v. Third- Ave. R. Co., 16 
 Misc. Rep. (N. Y.) 11, 73 St. Rep. 
 (N. Y.) 289, 37 N. Y. Supp. 593, 
 affg. 14 Misc. Rep. (N. Y.) 44s, 
 70 St. Rep. (N. Y.) 733, 35 N. Y. 
 Supp. 1030; Shanley v. Union R. 
 Co., 14 Misc. Rep. (N. Y.) 442, 35 
 N. Y. Supp. 1030, 70 St. Rep. (N. Y.) 
 734; Zimmerman v. Union R. Co., 
 3 App. Div. (N. Y.) 219, 38 N. Y. 
 Supp. 362; McDonald v. Third 
 Ave. R. Co., 16 Misc. Rep. (N. Y.) 
 52, 37 N. Y. Supp. 639, 73 St. Rep. 
 (N. Y.) 233. 
 
 It is useless to give the circum- 
 stances upon which different cases 
 have been sent to the jury, except, 
 perhaps, a few of them by way of 
 illustration: In Moran v. Detroit, 
 Y. & A. A. Ry. Co. (Mich.), 83 
 N. W. 606, 7 Det. Leg. N. 343, it 
 appeared that the plaintiflE turning 
 in toward a street car track, looked 
 both ways, and as he drew near 
 the track to cross it he collided 
 with a car, which was visible from 
 forty to seventy rods from the 
 point of collision. There was evi- 
 dence that he did not go immedi- 
 ately on the track after looking, 
 but drove eight or ten feet before 
 he was struck. 
 
 The defendant, operating a 
 double track electric street railway 
 on a street running east and west, 
 on the south side of which there 
 was no sidewalk, built a crosswalk 
 
CONTRIBUTORY NEGLIGENCE. 
 
 359 
 
 approaches from the rear, he is not necessarily negligent, 
 although his duty required him to turn off the tracks upon 
 
 from the north sidewalk, connect- 
 ing with platforms on either side 
 of its tracks, and put up a sign that 
 the cars stopped there. Plaintifif 
 and her escort, walking over this 
 crosswalk in the nighttime to take 
 a car on the south track, seeing 
 the headlight of a car approaching 
 on the south track at a distance 
 estimated by them to be 700 feet, 
 the escort ran ahead to the south 
 platform and signaled the car; 
 plaintiff followed at a brisk walk, 
 watching the approaching car and 
 supposing that it was slowing up; 
 believing that she had ample time 
 to cross in front of it, she con- 
 tinued across the south track and 
 was struck and injured just as she 
 reached the platform. The usual 
 speed of cars at this point was 
 twenty miles an hour, the car strik- 
 ing her ran forty-five miles an 
 hour in passing the platform. She 
 was not contributorily negligent as 
 matter of law. Walker v. St. Paul 
 City Ry. Co., 81 Minn. 404, 51 L. 
 R. A. 632, 84 N. W. 222. 
 
 After sundown, not quite dark, 
 plaintifif was struck by a car as 
 she was attempting to cross Third 
 avenue at Ninety-fifth street, she 
 then being near or upon the north 
 crosswalk; when she approached 
 the car tracks the car was coming 
 down town upon the westerly 
 track, followed by a truck; she 
 stood near the track until both had 
 passed her, then crossed the west 
 track and became aware of a car 
 coming up town upon the east 
 track; she stood between the two 
 tracks while another car from the 
 
 north passed down and the car 
 from the south passed by; behind 
 the car going north at a short dis- 
 tance, not precisely stated, was an- 
 other car also going north; she 
 appeared to see this before she at- 
 tempted to cross the east track in 
 front of it, but she was struck while 
 crossing. The court said, in deter- 
 mining if the evidence were suffi- 
 cient to sustain the verdict: " In 
 examining questions of this kind, 
 it must be remembered that foot 
 passengers as well as horsemen 
 and those who operate street cars 
 have equally a lawful right to use 
 the street for all proper purposes 
 and at all proper places. It is quite 
 true that street cars which run upon 
 rails laid down in the street and 
 cannot turn out, and which are 
 large and heavy vehicles moved 
 by machinery, necessarily have to 
 a considerable extent the right of 
 way, and it is the duty of pedestri- 
 ans to use reasonable care to avoid 
 them; but yet there is a corre- 
 sponding duty on the part of the 
 drivers of street cars, who must, 
 in the exercise of due care, so 
 control the speed of their cars and 
 give such notice of the approach 
 of their cars at places where pedes- 
 trians are using the streets that 
 such pedestrians can avoid them in 
 the exercise of proper care. This 
 duty is all the more stringently to 
 be insisted upon in the case of 
 corporations like the defendant, 
 whose cars are of great weight and 
 are run at a comparatively high 
 rate of speed, so that great care 
 on the part of the gripman, as 
 
36o 
 
 STREET SURFACE RAILROADS. 
 
 well as on the part of pedestrians, 
 is required to avoid serious, if not 
 fatal, accidents." Fandel v. Third 
 Ave. R. Co., IS App. Div. (N. Y.) 
 426, 44 N. Y. Supp. 462; aflfd., 162 
 N. Y. S98, 57 N. E. mo. 
 
 If a car approach a street cross- 
 ing on a dark, rainy night, and 
 the employees of the company 
 managing the car fail to give no- 
 tice by sounding gong or bell, the 
 complaint in an action for injury 
 to a pedestrian at such crossing 
 cannot be dismissed, although the 
 car only moved at an ordinary rate 
 of speed. On a retrial it appeared 
 that the plaintiff looked both ways 
 fc- other cars, her intestate being 
 in advance as they crossed behind 
 the passing car, and intestate was 
 struck and killed by a car moving 
 rapidly on the second track. Held, 
 2l question for the jury as to 
 whether he was negligent. 
 Schwarzbaum v. Third Ave. R. 
 Co., 54 App. Div. (N. Y.) 164, 66 
 N. Y. Supp. 367, 69 id. 1095. 
 
 One driving a loaded truck on 
 a south-bound track turned almost 
 directly across the north-bound 
 track and there the hind wheels or 
 the part of the load projecting be- 
 yond them was struck by a north- 
 bound street car; he testified that 
 when he turned, another street car 
 was in sight; others, that the car 
 was from 75 to 200 feet distant 
 ■when he reached the north-bound 
 track. The case was held for the 
 jury. Meyer v. Brooklyn, Q. C. & 
 S. R. Co., 47 App. Div. (N. Y.) 
 286, 62 N. Y. Supp. 33. And see 
 Morrow v. Del. Co. & P. El. Ry. 
 Co. (Pa.), 48 Atl. 974. 
 
 A boy seven or eight years of 
 age standing upon street railway 
 tracks in plain sight of cars ap- 
 
 proaching upon them, waiting for 
 cars to pass on the other track and 
 struck by a car, giving no signal 
 of its approach, is not necessarily 
 negligent. Griffiths v. M. St. R. 
 Co., 63 App. Div. (N. Y.) 86, 71 
 N. Y. Supp. 406. 
 
 A milkman driving on a street 
 car track at S o'clock in the morn- 
 ing, in November, in a covered 
 wagon with two doors on the side, 
 seated behind the doors, with cans 
 piled before and behind him, a 
 lantern inside the wagon but no 
 light visible from the rear, was 
 struck by a car and injured. Ob- 
 structions in the street compelled 
 him to drive on the track; the 
 motorman testified that the car 
 was going twenty-five miles an 
 hour and that he was asleep. Held, 
 it was for the jury to say if the 
 milkman was negligent. Mapes v. 
 Union R. Co., 56 App. Div. (N. 
 Y.) 508, 67 N. Y. Supp. 358. 
 
 One is not guilty of contributory 
 negligence in proceeding to drive 
 across the tracks in advance of a 
 car which he observes approaching 
 250 or 300 feet distant at the rate 
 of from twelve to fifteen miles an 
 hour, when he is only fifteen feet 
 from the first track; and in an ac- 
 tion for injuries if a collision re- 
 sult, the court may properly charge 
 that he had " the right to assume 
 that the car coming south would 
 not be run in such a way as to 
 endanger him. Every person who 
 uses the street crossings has the 
 right to assume that the people 
 who are operating street cars are 
 operating them with a due regard 
 to the . rights of others, and that 
 they will exercise ordinary care and 
 prudence in their operation. To 
 that extent they have a right to 
 
CONTRIBUTORY NEGLIGENCE. 
 
 361 
 
 notice of the approach of the car; it would depend upon the 
 circumstances surrounding."" As matter of law, he is negli- 
 
 rely upon the conduct of the peo- 
 ple who are operating street cars." 
 Bertsch v. Met. St. R. Co., 68 App. 
 Div. (N. Y.) 228. 
 
 40. Camden, G. & W. R. Co. v. 
 Preston, 59 N. J. L. (30 Vroom) 
 264, 35 Atl. 1 119; McGrane v. 
 Flushing & C. P. El. R. Co., 13 
 App. Div. (N. Y.) 117, 43 N. Y. 
 Supp. 38s; Fishbach v. Steinway R. 
 Co., II App. Div. (N. Y.) 152, 42 
 N. Y. Supp. 883; Thatcher v. Cen- 
 tral Tract. Co., 166 Pa. St. 66, 25 
 Pittsb. L. J. (N. S.) 321, 36 W. 
 N. C. 84, 30 Atl. 1048; Central Pass. 
 R. Co. v. Chatterson, 29 S. W. 18, 
 17 Ky. L. Rep. 5; O'Neill v. Third 
 Ave. R. Co., 3 Misc. Rep. (N. Y.) 
 521, 52 St. Rep. (N. Y.) 486, 23 
 N. Y. Supp. 20. 
 
 He who is prevented from driv- 
 ing farther on the right-hand track 
 of an electric railway by an open 
 manhole, and from turning to the 
 right because of wagons blocking 
 the street on that side, is not nec- 
 essarily negligent in turning to the 
 left across the other track, in front 
 of a car approaching thereon some 
 distance away. Lenkner v. Citi- 
 zens' Tract. Co., 179 Pa. St. 486, 
 36 Atl. 238, 28 Pittsb. L. J. (N. S.) 
 II. 
 
 Plaintifif's intestate was being 
 driven in a track between a ditch 
 and an electric street railway, after 
 dark, at a walk, and he and the 
 driver both kept looking for a car 
 to approach from the rear; the last 
 time they looked, the car was close 
 upon them; the driver turned as 
 soon as possible, but too late, be- 
 cause of the rate of speed at which 
 
 the car was running; and the in- 
 testate died from the injuries re- 
 ceived in the collision. Held, not 
 negligent as matter of law. Rouse 
 V. Detroit El. Ry. (Mich.), 87 
 N. W. 68, 8 Det. Leg. N. 577; 
 Countryman v. F., J. & G. R. Co., 
 166 N. Y. 201, 59 N. E. 822. One 
 is not necessarily negligent while 
 standing between tracks, because 
 he stepped back in front of an ap- 
 proaching car not seen to avoid a 
 car coming upon the other track, 
 by which he was unexpectedly con- 
 fronted. McCormick v. Brooklyn 
 City R. Co., 10 Misc. Rep. (N. Y.) 
 8, 62 St. Rep. (N. Y.) 647, 30 N. 
 Y. Supp. 529. And see Conoly v. 
 Trenton Pass. R. Co., 56 N. J. L. 
 (27 Vroom) 700, 44 Am. St. Rep. 
 424, 29 Atl. 438. 
 
 The unconscious mismanage- 
 ment, mistake, or mismovement of 
 a motorman in manipulating the 
 appliances to stop his^ car, after 
 having reasonable ground to ap- 
 prehend a collision, but for which 
 the collision would not have oc- 
 curred, does not render the com- 
 pany liable to a person injured 
 thereby and negligent in failing to 
 look out for a car, and in failing 
 to get off the track after he dis- 
 covered the car. Lockwood v. 
 Bell City St. R. Co., 92 Wis. 97, 
 6s N. W. 866. And see Winter v. 
 Crosstown St. Ry. Co., s Am. 
 Electl. Cas. SiS, 8 Misc. Rep. (N. 
 Y.) 362; Fishbach v. Steinway R. 
 Co., 6 Affi. Electl. Cas. 547, ir 
 App. Div. (N. Y.) 152. 
 
 The rule that a failure by the 
 driver of a wagon on a street car 
 
362 
 
 STREET SURFACE RAILROADS. 
 
 gent if he crosses the track when it is evident to him that he 
 cannot pass in safety unless the motorman stops or slackens 
 the speed of his approaching car/' Where the cars run at a. 
 high rate of speed and close together, or where the view is 
 obstructed and there is much noise and confusion, reasonable 
 care imposes a greater degree of caution upon travelers 
 crossing the tracks than where the cars are run at less speed 
 and farther apart, or where the view is open and the sur- 
 roundings quiet.'*^ A stranger to the locality, in possession. 
 
 track to remove his wagon there- 
 from in time to avoid collision with 
 a car approaching from his rear 
 when, by looking to the rear he 
 might have discovered the car in 
 time to leave the track and avoid 
 the collision, constituted contribu- 
 tory negligence, even though the 
 motorman might, by the exercise 
 of proper care, have avoided the 
 collision, announced in the Winter 
 Case, was held unsound in the Fish- 
 bach Case; and it was held in the 
 latter case that no more stringent 
 rule exists than that " the person 
 driving in a car track must exer- 
 cise reasonable care, and that is to 
 be determined from a considera- 
 tion of the obligations resting upon 
 the operator of the car, the burden 
 of use which general traffic im- 
 poses upon the street, and the rule 
 that the car has a paramount, but 
 not an exclusive right of way." 
 
 41. Williamson v. Met. St. Ry< 
 Co., 29 Misc. Rep. (N. Y.) 324, 
 60 N. Y. Supp. 477; MacLeod v. 
 Graven (C. C. App. 6th C), 19 
 C. C. A. 616, 43 U. S. App. 129, 
 73 Fed. 627; Smith v. El. Tract. 
 Co. (C. P.), 6 Pa. Dist. 471, 40 W. 
 N. C. 486. 
 
 42. Brown v. Wilmington City 
 Ry. Co., I Penn. (Del.) 332, 12 Am. 
 & Eng. R. Cas. (N. S.) 439, 4a 
 Atl. 936; R. F. Stevens Co. v. 
 Brooklyn Heights R. Co., 59 App. 
 Div. (N. Y.) 23, 68 N. Y. Supp. 
 1088. Crossing or using tracks of 
 a cable or electric railroad, travel- 
 ers should exercise more care to 
 insure their safety than where the 
 cars are drawn by horses. Winter 
 V. Federal Street & P. V. R. Co., 
 153 Pa. St. 26, ig L. R. A. 232, 23 
 Pitts. L. J. (N. S.) 302, 2S Atl. 
 1028, 31 W. N. C. 565; Ponsano 
 V. St. Charles St. R. Co., 52 La. 
 Ann. 24s, 26 So. 820. 
 
 The driver of a loaded truck, 
 upon the track of one electric 
 street railroad, approaching the 
 crossing thereof by another similar 
 railway, knowing a car upon the 
 same track is approaching him in 
 the rear and that another is com- 
 ing upon the intersecting track, 
 cannot undertake to cross in front 
 of the last-named car without neg- 
 ligence. If a collision result, he 
 has taken his chances. Clancy v. 
 Troy, etc., R. Co., 5 Am. Electl. 
 Cas. 551, 88 Hun (N. Y.), 496. 
 
 There can be no recovery for 
 
CONTRIBUTORY NEGLIGENCE. 363 
 
 of all her faculties, and with nothing to obstruct her view or 
 prevent her seeing or hearing a car, is negligent as matter 
 of law if she be injured in attempting to cross a street without 
 even observing the railway tracks in the street. The rule in 
 such case is, that if the person have no actual knowledge of 
 the danger which subsequently caused the injury, and could 
 not, by the exercise of reasonable care, have discovered it, 
 he cannot be said to be negligent. But, if ignorant of the 
 danger and the exercise of reasonable care would have made 
 it known, and there be a failure to exercise such care, he is 
 chargeable with negligence to the same extent as though 
 perfectly familiar with the location and the danger. "^^ If the 
 crossing be made in the middle of a block, on a dark night, 
 and the traveler saw a car which appeared to him to be stand- 
 ing at the street intersection, he is not negligent, although 
 the car started up and collided with him while crossing.'** 
 One is not necessarily negligent in continuing to descend, 
 with a heavy load, a steep grade crossing a street railway, 
 without fixing a lock chain to the wagon which breaks after 
 the descent is begun.'*^ Nor is it negligence, as matter of 
 
 the death of a person struck by , to those who assert that it was 
 
 a street car who, knowing that charged that it was not charged, 
 
 cars pass frequently and that the is negligent as matter of law. 
 
 nearest rail of the track was not Wood v. Diamond El. Co., 185 
 
 more than ten inches from the Pa. St. 529, 39 Atl. 11 11. 
 
 hub of one of the wheels of his 43. Russell v. Minneapolis St. 
 
 wagori, attempted to dismount by Ry. Co. (Minn.), 86 N. W. 346. 
 
 stepping on the hub nearest the 44. Gildea v. Met. St. Ry. Co., 
 
 track, with his back thereto, when 58 App. Div. (N. Y.) 528, 69 N. 
 
 the car was in plain sight, about Y. Supp. 568; Rieglemann v. 
 
 fifty feet away, approaching at a Third Ave. R. Co., 9 Misc. Rep. 
 
 fast rate. Crowley v. Met. St. Ry. (N. Y.) 51, 59 St. Rep. (N. Y.) 
 
 Co., 24 App. Div. (N. Y.) loi, 48 667, 29 N. Y. Supp. 299; Kennedy 
 
 N. Y. Supp. 863. A person who v. St. Paul City R. Co., 59 Minn, 
 
 voluntarily touches a wire screen, 45, 60 N. W. 810. 
 
 heavily charged with electricity, 4S- Cross v. California St. Cable 
 
 for the purpose of demonstrating R. Co., 102 Cal. 313, 36 Pac. 673. 
 
364 STREET SURFACE RAILROADS. 
 
 law, for one to drive along a street railroad track, seated in 
 the center of a low cart immediately behind his horse so as to 
 be unable to observe the upturned end of a rail forming part 
 of the track; if however the rail is plainly dsible for a great 
 distance, say 1 50 feet, and should have been observed by him 
 in the exercise of ordinary care, he is so negligent that he 
 cannot recover for an injury caused by contact with the rail.'^^ 
 The sudden peril which would prevent an act otherwise neg- 
 ligent from being considered contributory negligence, does 
 not apply to the case of a person who, attempting to escape 
 impending peril from drays and wagons, throws himself in 
 front of a moving street car whose owner and its servants are 
 not guilty of negligence/^ Indeed one may so foolishly, care- 
 lessly, and recklessly get upon a street railway track as to 
 defeat his right to damages from the company for personal 
 injuries caused by a collision, although the company was at 
 fault in running the car against him."** Where one at- 
 tempted to drive a wagon across the defendant's tracks, for 
 the purpose of turning into an intersecting street, and was 
 thrown from his seat into the street by reason of a collision 
 between the wagon and a car upon defendant's tracks, which 
 at the time he attempted to cross the tracks was upward 
 of seventy feet away and could have been stopped in less 
 than one-fifth of that distance, it cannot be said as matter 
 of law that he was guilty of contributory negligence.**^ 
 
 46. Bradwell v. Pittsb. & W. E. 48. Redford v. Spokane St. R. 
 
 Pass. R. Co., 153 Pa. St. 105, 25 Co., 9 Wash. 55, 36 Pac. 1085. 
 
 Atl. 623. And see Watson v. 48^. Bruss v. Met. St. Ry. Co., 
 
 Brooklyn City R. Co., 14 Misc. 66 App. Div. (N. Y.) SS4. And 
 
 Rep. (N. Y.) 405, 70 St. Rep. (N. see Smith v. Met. St. Ry. Co., 66 id. 
 
 Y-) 7%7, 35 N. Y. Supp. 1039. 600. Where the evidence given on 
 
 47- Trowbridge v. Dewville St. the jury trial presents an issue of 
 
 R. Co. (Va.), 19 S. E. 780. fact, the court has no power to 
 
STOP, LOOK, LISTEN. 
 
 365 
 
 § 26. Rule to stop, look, and listen. — The rule generally ap- 
 plied to the conduct of person crossing the tracks of steam 
 railroads, that the omission of the plaintiff to " stop, look, 
 and listen " before crossing the track is negligence, as matter 
 of law, is only applicable to street railways where the attend- 
 ing conditions are such that reasonable care and prudence 
 would dictate such precautions.'*^ There is always the duty 
 
 direct a verdict for one of the 
 parties on the theory that a verdict 
 in favor of the other party would 
 be set aside as against the weight 
 of evidence. Smith Case, supra; 
 Wiard v. Syracuse R. T. Co., 52 
 App. Div. (N. Y.) 63s; affd., 169 
 N. Y. 
 
 49. Tacoma Ry. & Power Co. 
 V. Hays (C. C. App. pth C), no 
 Fed. 496, 23 Am. & Eng. R. Cas. 
 (N. S.) 58. In the case cited the 
 court said: "The duties of per- 
 sons with respect to steam rail- 
 ways and street railways are not 
 so analogous as to be governed 
 at all, times by the same rule. 
 The rights of the persons are 
 greater, and the dangers less, in 
 connection with the latter; the 
 rights of street cars, no matter by 
 what power impelled, not being 
 superior to those of other vehicles, 
 save in the one instance where 
 the vehicle is bound to get out of 
 the way and not to obstruct the 
 passage of the car, owing to the 
 inability of the car to travel in 
 any other part of the street. The 
 element of trespass is entirely ab- 
 sent in the case of a person cross- 
 ing a street railway at any point, 
 and the only care required of him 
 is that which a reasonably prudent 
 man would exercise, having due 
 regard to the rights of others, and 
 
 assuming that others (including 
 the street car companies) will ex- 
 ercise the same care; in fact 
 knowing that such care is imposed 
 by municipal regulation upon the 
 persons operating the street cars. 
 This assumption of course does 
 not warrant such a reliance upon 
 it as to neglect means of self- 
 preservation, but is an element of 
 consideration in arriving at the 
 standard of care to govern the 
 particular case." And see Traver 
 v. Spokane St. Ry. Co. (Wash.), 
 65 Pac. 284, 22 Am. & Eng. R. 
 Cas. (N. S.) 759; Patterson v. 
 Townsend (Iowa Sup. Ct.), 5 Am. 
 Electl. Cas. 442; Lewis v. Cin- 
 cinnati St. Ry. Co., 10 Ohio S. & 
 C. P. Dec. 53; Trout v. Altoona & 
 L. V. El. Ry. Co., 13 Pa. Super. 
 Ct. 17. 
 
 Where it appeared that the 
 plaintifip looked when within eighty 
 feet of the street car track and 
 ascertained that no car was within 
 300 or 350 feet of the crossing, 
 and then drove on at the usual 
 rate of speed of the cars (four 
 to five miles an hour), his view 
 being so obstructed by trees that 
 he could not see a car coming un- 
 til the fore feet of his horse were 
 at the further rail of the street 
 car track, and he, sitting on the 
 seat of his wagon, was from two 
 
366 
 
 STREET SURFACE RAILROADS. 
 
 to look for an approaching car, and, if the street is obstructed, 
 to listen, and in some situations to stop, and a plaintiff must 
 
 to four feet from the nearer rail 
 of the track, when he saw the car 
 coming toward him ten or twelve 
 feet away, at the rate of from ten 
 to sixteen miles an hour, which 
 collided with his wagon and in- 
 jured him. Held, that he was not 
 negligent, as matter of law; but 
 it was for the ju^ to determine; 
 that it might be^at it was more 
 prudent for him to drive at the 
 usual speed of the defendant's 
 cars when he had only from ninety 
 to ninety-five feet to go to get 
 entirely clear of the track, rather 
 than to have driven at a slower 
 rate and thereby to have given to 
 a car which was from 300 to 350 
 feet away when he ...was eighty 
 feet from the crossing, more time 
 to meet him at the crossing; nor 
 could it be said as matter of law 
 that he should have gotten down 
 from his wagon, gone forward in 
 advance of his horse, and looked 
 to see if a car was coming, before 
 driving on to the crossing. Kel- 
 ley V. Wakefield & S. St. Ry. Co., 
 61 N. E. 139, 23 Am. & Eng. R. 
 Cas. 67. Plaintiff attempted to 
 drive across a double street car 
 track with his vehicle, a car ap- 
 proaching on each track, the one 
 nearest him somewhat obstruct- 
 ing his view of the other car; he 
 was not driving fast ; an open man- 
 hole in the street necessitated his 
 crossing the track, and it was at a 
 regular crossing; he could not 
 see the car approaching that was 
 on the farther track, but the mo- 
 torman of that car could have 
 seen his horse as he drove upon 
 
 the track; as the horse stepped 
 upon the farther track the car 
 upon the inner track slowed down, 
 and the one upon the farther 
 track, driven at an excessive rats 
 of speedr struck his vehicle and 
 inflicted the injuries complained of. 
 Held, that his contributive negli- 
 gence was a question for the jury. 
 Cooke V. Los Angeles & P. EI. 
 Ry. Co., 66 Pac. 306, 23 Am. & 
 Eng. R. Cas. 69. And see Capi- 
 tal Tract. Co. v. Lusby, 26 Wash. 
 L. Rep. 163, 12 App. D. C. 295; 
 Reid T. Brooklyn H. R. Co., 32 
 App. Div. (N. Y.) S03, S3 N. Y. 
 Supp. 209; Little V. Superior R. 
 T. Ry. Co., S Am. Electl. Cas. 
 599, 88 Wis. 402; Evansville St. 
 R. Co. V. Gentry, 147 Ind. 408, 
 37 L. R. A. 378, S Am. & Eng. 
 R. Cas. (N. S.) soo, 44 N. E. 311; 
 West Chicago St. R. Co. , v. Nil- 
 son, 70 111. App. 171; Consol. 
 Tract. Co. v. Scott, 6 Am. Electl. 
 Cas. 516, 58 N. J. L. (29 Vroom) 
 682, 32 L. R. A. 122, 34 Atl. 1094, 
 S5 Am. St. Rep. 620, 4 Am. & 
 Eng.R. Cas. (N. S.) 371; Holm- 
 gren V. St. Paul City R. Co., 61 
 Minn. 85, 63 N. W. 270; Cincin- 
 nati St. R. Co. V. Whitcomb (C. 
 C. App. 6th C), 66 Fed. 915, i 
 Ohio Dec. Fed. 5; Shea v. St. 
 Paul City R. Co. (Minn.), 52 N. 
 W. 902, 7 Am. R. & Corp. Rep. i. 
 Having reference to the rule in 
 crossing steam railroad tracks the 
 New York Court of Appeals has 
 recently said: "While the gen- 
 eral rule requires a traveler upon 
 a public highway, who is about 
 to cross at grade the track of a 
 
STOP, LOOK, LISTEN. 
 
 367 
 
 Tje held to have seen that which was obvicus.s" A diversion 
 of attention, generally speaking, will not excuse the perform- 
 
 railroad, to both look and listen, 
 in order to learn whether a train 
 is approaching, it is applied ' only 
 when it appears from the evidence 
 that he might have seen, had he 
 looked, or might have heard, had 
 he listened.' (Smedis v. Brook- 
 lyn, etc., R. Co., 88 N. Y. 14, 20; 
 Thompson v. N. Y. C, no id. 
 637, 17 N. E. 690; Palmer v. N. 
 Y. C, 112 id. 234, 243, 19 N. E. 
 678; Pruey v. N. Y. C, 41 
 App. Div. [N. Y.] 160, 166 
 N. Y. 616, 58 N. Y. Supp. 
 797.) He is not required to look 
 or listen when neither would do 
 any good, and such, as the jury 
 might have found, was the situa- 
 tion when the decedent met his 
 death. The fact that an observer, 
 in the possession of all his facul- 
 ties, who was very near the de- 
 cedent and walked alongside as he 
 drove from the point where he 
 stopped until he reached the track, 
 and looked and listened all the 
 time, but did not see or hear the 
 approaching engine, is some evi- 
 dence, when considered in con- 
 nection with the surrounding cir- 
 cumstances, that if the decedent 
 had looked and listened he would 
 neither have seen nor heard." Fej- 
 dowski V. D. & H. C. Co., 168 
 N. Y. SCO, S3 N. Y. L. J. 801 ; Hall 
 V. Ogden City R. Co., 6 Am. 
 Electl. Cas. 598, 13 Utah, 243, 44 
 Pac. 1046, 4 Am. & Eng. R. Cas. 
 <N. S.) 77. 
 
 so. McCawley v. Phila. Tract. 
 Co., 13 Pa. Super. Ct. 354; Dieck 
 ~v. New Orleans City & L. R. Co., 
 51 La. Ann. 262, 25 So. 71; Caw- 
 
 ley V. La Crosse City R. Co., 101 
 Wis. 14s, 12 Am. & Eng. R. Cas. 
 (N. S.) 453, 77 N. W. 179; Creamer 
 V. West End St. Ry. Co., 156 
 Mass. 320, 31 N. E. 391; Young 
 V. Citizens' St. Ry. Co., 6 Am. 
 Electl. Cas. 479, 148 Ind. 54, 44 
 N. E. 927; S. C, 47 id. 142; 
 Smith V. El. Tract. Co., 6 Pa. 
 Dist. 471, 40 W.' N. C. 486; Hoel- 
 zel V. Crescent City R. Co., 49 
 La. Ann. 1302, 38 L. R. A. 708, 22 
 So. 330; Consol. Tract. Co. v. 
 Haight, 59 N. J. L. (30 Vroom) 
 577. 57 Atl. 135; Baltimore Tract. 
 Co. v. Helms, 84 Md. 515, 36 L. 
 R. A. 215, 36 Atl. 119; Hickey v. 
 St. Paul City R. Co., 60 Minn. 
 119, 61 N. W. 893; Olmslaer v. 
 Pittsb. & B. Tract. Co., 168 Pa. 
 St. 519, 32 Atl. so, 26 Pittsb. L. 
 J. (N. S.) 15; Ehrisman v. East 
 Harrisburg City Pass. R. Co., 4 Am. 
 Electl. Cas. 486, 150 Pa. St. 180, 
 24 Atl. 596, 30 W. "N. C. 373, 23 
 Pittsb. L. J. (N. S.) 73; Carson 
 V. Federal St. & P. V. R. Co., 147 
 Pa. St. 219, 20 Wash. L. Rep. 668, 
 so Am. & Eng. R. Cas. 462, 23 
 Atl. 369, IS L. R. A. 257, 29 W. 
 N. C. 402; Hickman v. Union 
 Depot R. Co., 47 Mo. App. 65; 
 Wheelahan v. Phila. Tract. Co., 
 ISO Pa. St. 187, 24 Atl. 688, 30 
 W. N. C. 375; Vonelling v. Met. 
 St. R. Co., 35 Misc. Rep. (N. Y.) 
 301, 71 N. Y. Supp. 751; Warren 
 V. Bangor, etc., Ry. Co., 95 Me. 
 IIS, 49 Atl. 609; Highland Ave. 
 & B. Ry. Co. V. Sampson, 112 
 Ala. 425, 20 So. 566; Fairbanks v. 
 Bangor, O. & O. Ry. Co. (Me.), 
 49 Atl. 421; Wosika v. St. Paul 
 
368 
 
 STREET SURFACE RAILROADS. 
 
 ance of this duty, neither will misconduct on the part of the 
 railway company. If the neghgence of the plaintiff, or his 
 intestate, contributed to the injury, n'o matter how negligent 
 the defendant may have been, unless such negligence was 
 wanton or malicious, the plaintiff cannot recover.^' This 
 
 City Ry. Co. (Minn.), 83 N. W. 
 386; Downs V. St. Paul City Ry. 
 Co., 75 Minn. 41, ^^ N. W. 408; 
 Blaney v. El. Tract. Co., 184 Pa. 
 St. 524, 39 Atl. 294, 41 W. N. C. 
 5SS; Culberts v. Met. St. R. Co., 
 140 Mo. 35, 36 S. W. 832; Graflf 
 V. Detroit Citizens' R. Co., 109 
 Mich. ^^, 5 Am. & Eng. R. Cas. 
 (N. S.) 447/67 N. W. 81S, 3 Det. 
 Leg. N. 12; Healey v. Brooklyn 
 H. R. Co., 18 App. Div. (N. Y.) 
 623, 45 N. Y. Supp. 393. 
 
 So where the accident occurred 
 on a clear morning in early autumn 
 at about lo o'clock to a driver, 
 who was familiar with the line of 
 the railway tracks and with the 
 usual rate of speed of the cars, 
 which he regarded as dangerous, 
 his horse being easily managed 
 and accustomed to the cars, and 
 who looked when he reached the 
 curb on the south side of the 
 street he was about to cross and 
 saw that no cars were approach- 
 ing from the west, but did not 
 look east, although he might have 
 had a clear view for a half mile 
 up the track, and did not turn hJs 
 attention to the east until just as 
 the car struck him; it was held 
 that he was negligent as matter 
 of law, and that his negligence 
 contributed proximately to the in- 
 jury. Merritt v. Foote (Mich.). 
 87 N. W. 262, 23 Am. & Eng. R. 
 Cas. 43. A driver is negligent y 
 who, after stopping his horse ten 
 
 or twelve feet from the street 
 car track whence he could see 
 three-quarters of a mile, and see- 
 ing no car attempts to go for- 
 ward, but being stalled, backs up 
 the ten or twelve feet and then 
 goes forward with a spurt, not 
 looking, and then collides with the 
 car. Kern v. Second Ave. Tract. 
 Co., 194 Pa. St» 75, 45 Atl. 125. 
 And see Schausten v. Toledo 
 Consol. Tract. Co., 18 Ohio C. C. 
 691. And see Burke v. Union 
 Tract. Co., 198 Pa. St. 497, 48 Atl. 
 470. 
 
 51. Tesch V. Milwaukee El. Ry. 
 & L. Co., 108 Wis. 593, 84 N. W. 
 822; Citizens' St. R. Co. v. Helvie, 
 22 Ind. App. 515, 53 N. E. 191, I 
 Repr. 750; McGee v. Consol. St. 
 R. Co., 5 Am. Electl. Cas. 462, 
 102 Mich. 107, 26 L. R. A. 300, 
 60 N. W. 293; Carson v. Federal 
 St. & P. Val. R. Co., 147 Pa. St. 
 219, 15 L. R. A. 257; Fritz v. De- 
 troit C. R. Co., 5 Am. Electl. 
 Cas. 480, 105 Mich. 50. 
 
 Where one is struck by a street 
 car, having neglected when two 
 or three feet from the track to 
 look in the direction of the ap- 
 proaching car, then in plain view, 
 although he had looked when 
 about twelve feet from the track 
 but could not then see the car 
 because his view was obstructed, 
 he cannot recover for the injuries 
 Eufifered in the collision. Doherty 
 v. Detroit Citizens' St. R. Co., 118 
 
STOP, LOOK, LISTEN. 
 
 369 
 
 rule should be applied with greater strictness to a pedestrian 
 than to a driver of a vehicle. A pedestrian ought never to go* 
 upon the track without looking or taking precautions to dis- 
 cover and avoid an approaching car.'^ The motorman, or 
 gripman, or driver of an approaching car has the right to 
 assume that a person traveling on the track in front of the 
 car or about to cross, to whom the customary warnings had 
 been given, has made himself aware of the approach of the 
 car and will either increase his speed or turn aside and avoid 
 the danger which threatens him.s^ Failure of those in charge 
 of a car to obey the rule or custom of the company requiring 
 all cars to stop before passing a car when stopped at the 
 crossing or station, will not absolve a driver from the duty 
 of vigilance.5'' Nor will deafness or any physical or artificial 
 
 Mich. 209, 213, 5 Det. Leg. N. 
 489, 76 N. W. 377; affd., 80 N. W. 
 36; Blakeslee v. Consol. St. Ry. 
 Co., 5 Am. Electl. Cas. 486, 105 
 Mich. 462, 63 N. W. 401, 2 Det. 
 Leg. N. 154. The negligence of 
 the defendant appearing, the con- 
 tributory negligence to prevent a 
 recovery must be such as mate- 
 rially contributed to the accident. 
 Citizens' St. R. Co. v. Allbright, 
 14 Ind. App. 433, 42 N. E. 238; 
 Fejdowski v. D. & H. C. Co., i68 
 N. Y. 500, 53 N. Y. L. J. 801. 
 
 52. Consolidated & C. P. R. Co. 
 V. Wyatt, 59 Kan. 772, 52 Pac. 98, 
 9 Am. & Eng. R. Cas. (N. S.) 756. 
 
 53. McLaughlin v. New Or- 
 leans & C. R. Co., 6 Am. Electl. 
 Cas. 484, 48 La. Ann. 23. 
 
 54. Doyle v. Albany Ry. (N. Y.), 
 6 Am. Electl. Cas. 532. In a re- 
 cent case for injuries in a collision 
 with a street car, it appeared that 
 plaintiflf looked toward the west 
 
 24 
 
 for cars as he stepped from the 
 curb, and while crossing the street 
 kept looking to the east; cars 
 were running both east and west; 
 the car which struck him made a 
 full stop and waited for pedes- 
 trians to pass in front of it before 
 proceeding. A very brief time 
 elapsed after he left the curb and 
 before he was struck. Held, that 
 he was negligent in not looking 
 for the car before stepping on the 
 track just ahead of it, and can- 
 not recover. McGraff v. North 
 Jersey St. Ry. Co. (N. J.), 49 Atl. 
 520. And see as to a driver of a 
 horse and buggy who did not look 
 until the horse was on the track,. 
 Trout V. Altoona & L. V. El. Ry. 
 Co., 13 Pa. Super. Ct. 17; Helber 
 V. Spokane St. Ry. Co., 22 Wash. 
 319, 61 Pac. 40. As to one who' 
 looked and then his view became 
 obstructed, and when he passed 
 the obstruction did not look again, 
 
370 
 
 STREET SURFACE RAILROADS. 
 
 disability to look or listen absolve him from this duty, unless 
 of course the artificial obstructions are those over which he 
 has no control." In New Jersey and some other States how- 
 ever the principle of law is held now to be well established, 
 that it is not negligence in law for a person driving a vehicle 
 in approaching a street crossing over which he intends to 
 cross, to fail to look for an approaching street car, in order 
 to avoid danger from it.s* 
 
 and was held therefore negligent, 
 see Kelley v. Wakefield & S. St. 
 Ry. Co., 175 Mass. 331, 56 N. E. 
 s8s; Doherty v. Detroit Citizens' 
 St. Ry. Co., 118 Mich. 209, 76 N. 
 W. zyy; Merritt v. Foote (Mich.), 
 &y id. 262, 8 Det. Leg. N. 678. 
 
 55. Schulte V. New Orleans, C. 
 & L. R. Co., 44 La. Ann. 509, 10 
 So. 811; Cawley v. La Crosse City 
 Ry. Co., 106 Wis. 239, 82 N. W. 
 197; Boerth v. West Side R. Co., 
 87 Wis. 288, 58 N. W. 376. The 
 driver of a truck following a street 
 car must wait until the car has ad- 
 vanced far enough to give him an 
 unobstructed view of the adjoin- 
 ing track before attempting to 
 cross it. Baumann v. Met. St. R. 
 Co., 21 Misc. Rep. (N. Y.) 658, 47 
 N. Y. Supp. 1094. Where the 
 driver and the cable car, approach- 
 ing the same point, stop, and each 
 supposing the other would con- 
 tinue to stop passed on to col- 
 lision, the railroad company can- 
 not be held liable for the driver's 
 injuries. West Chicago St. R. Co. 
 V. Bocker, 70 111. App. 67. One 
 who alights from a street car and 
 attempts to cross a parallel track 
 "without looking for an approach- 
 ing car from the other direction 
 on a straight track, cannot recover 
 
 for injuries if struck by such car. 
 Baltimore Tract. Co. v. Helms, 84 
 Md. 515, 36 L. R. A. 215, 36 Atl. 
 119. 
 
 56. Dennis v. North Jersey St 
 Ry. Co. (N. J. Sup.), 45 Atl. 807. 
 And see Wilson v. Memphis St. 
 Ry. Co., 105 Tenn. 74, 58 S. W. 
 334; North Jersey St. R. Co. v. 
 Schwartz (N. J.), 49 Atl. 683; Traver 
 V. Spokane St. Ry. Co. (Wash.), 65 
 Pac. 284; Roberts v. Spokane St. 
 Ry. Co., 23 Wash. 325, 63 Pac. 
 506; West Chicago St. R. Co. v. 
 Huhnke, 82 111. App. 404, 4 Chic. 
 L. J. Week. 218, 18 Nat. Corp. 
 Rep. 454; McNulta v. Norgren, 
 go III. App. 491. In Illinois it 
 has been held that one is not neg- 
 ligent, as matter of law, in passing 
 around the rear end of a street 
 car from which she has alighted 
 for the purpose of crossing the 
 street, although she goes upon the 
 other track in front of a car which 
 strikes her. Wallen v. North Chi- 
 cago St. R. Co., 82 111. App. 103. 
 In Virginia it was held error to 
 charge that though plaintiff in 
 stepping on the track failed to 
 look and listen, she could recover, 
 if by looking or listening she 
 could neither have seen nor heard 
 the approaching car, where there 
 
PEDESTRIANS. 
 
 371 
 
 § 27. Pedestrians. — A pedestrian may assume that an ap- 
 proaching car is under control, although approaching at a 
 fair rate of speed; if it be sufficiently distant so that in the 
 excBcise of ordinary prudence he determines it to be safe he 
 may attempt to cross. For illustration, at a street intersec- 
 tion in a populous city, from twenty to fifty feet in front of 
 the advancing car, he may cross even if he has seen it ap- 
 proaching. The question of his negligence will be for the 
 jury." The mandatory duty to look and listen is not applied 
 with the same rigidity to pedestrians crossing street railroad 
 tracks at intersecting streets, it being the duty of the railroad 
 
 was no evidence on which such 
 a charge could be based. Rich- 
 mond Tract. Co. v. Hildebrand, 
 
 34 S. E. 888. And see Cincinnati 
 St. R. Co. V. Snell, 54 Ohio St. 
 197, 32 L. R. A. 276, 43 N. E. 207, 
 
 35 Ohio L. J. 140; Robbins v. 
 Springfield St. R. Co., 165 Mass. 
 30, 42 N. E. 334. In Kentucky it 
 was recently held that the trial 
 court did not err in refusing to 
 instruct the jury that it was the 
 duty of a girl twelve years old to 
 look and listen before crossing a 
 street car track, and that it was 
 sufficient to instruct them that it 
 was her duty to exercise such 
 caution as may be reasonably ex- 
 pected of one of her age under the 
 circumstances. Louisville Ry. Co. 
 V. Phillips, 58 S. W. 99S, 22 Ky. 
 L. Rep. 842. One who is on a 
 passage-way from which passen- 
 gers board trains, for the purpose 
 of taking a train then on the 
 track, and who is struck by an 
 electric car coming up from be- 
 hind because of the narrow pas- 
 sage-way between the two tracks, 
 
 does not come within the rule re- 
 quiring one to look and listen. 
 Conway v. New Orleans City & 
 L. R. Co., SI La. Ann. 146, 5 Am. 
 Neg. Rep. 354, 24 So. 780. 
 
 57. Sesselmann v. Met. St. R. 
 Co., 6s App. Div. (N. Y.) 484; 
 Frank v. Met. St. Ry. Co., 58 App. 
 Div. (N. Y.) 100, 68 N. Y. Supp. 
 537; Citizens' Ry. Co. v. Ford 
 (Tex. Civ. App.), 60 S. W. 68a; 
 Fandell v. Third Ave. R. Co., 162 
 N. Y. 598, 57 N. E. mo, affg. 15 
 App. Div. (N. Y.) 426, 44 N. Y. 
 Supp. 462. Where he travels 
 along a narrow space between 
 two trolley tracks, a place dan- 
 gerous in itself and not intended 
 for pedestrians, without looking 
 for a car, seeking a shoe cast by 
 one of his horses, and is struck 
 while stooping to pick it up, his 
 negligence will preclude a re- 
 covery for injuries sustained. Dix 
 v. Ridge Ave. Pass. Ry. Co., 15 
 Pa. Super. Ct. 350. And see 
 Floyd V. Paducah Ry. & L. Co. 
 (Ky.), 64 S. W. 6S3, 23 Am. & 
 Eng. R. Cas. 167. 
 
3/2 STREET SURFACE RAILROADS. 
 
 company to have its cars under control as they approach 
 such crossings.5* This duty however will not reheve persons 
 approaching street railroad tracks from making fair use of 
 their faculties to avoid colHsion with a car; and however neg- 
 ligent the street car company may be, the absence of reason- 
 able prudence on the part of the pedestrian crossing its track 
 will not be excused thereby.^^ If other vehicles threaten his 
 safety, or if his attention is distracted by the apparent immi- 
 nence of danger from other sources, he must act with ordi- 
 nary, prudence, with reference not to any one source of 
 danger, as paramount, but with reference to the group of 
 circumstances that make up the situation by which he is con- 
 fronted.*" One cannot voluntarily walk on a street railroad 
 track at night, knowing that a car may come up behind him 
 at any moment, and neglect to use ordinary care to learn of 
 the approach of a car.*' In a recent case in New York thei 
 
 58. Mitchell V. Third Ave. R. Market St. Cable R. Co., 97 Cal. 
 
 Co., 62 App. Div. (N. Y.) 371, 70 SS3, 33 Am. St. Rep. 203, 32 Pac, 
 
 N. Y. Supp. II 18; Halliday v. 591; Hickman v, Nassau El. R. 
 
 Brooklyn Heights R. Co., 59 App. Co., 41 App. Div. (N. Y.) 629, 58 
 
 Div. (N. Y.) 57, 69 N. Y. Supp. N. Y. Supp. 858. 
 
 174; Young V. Atlantic Ave. R. 59. Hoelzel v. Crescent City R. 
 
 Co., s Am. Electl. Cas. 530, 10 Co., 49 La. Ann. 1302, 22 So. 330, 
 
 Misc. Rep. (N. Y.) S4i> 64 St. 38 L. R. A. 708; Balla v. Met. 
 
 Rep. (N. Y.) 124, 31 N. Y. Supp. St. R. Co., 27 Misc. Rep. (N. Y.) 
 
 441; Altemeier v. Cincinnati St. R. 775, 57 N. Y. Supp. 746; Thorsell 
 
 Co. (C. P.), 4 Ohio N. P. 224, 4 V. Chicago City R. Co., 82 111. 
 
 Ohio Leg. N. 300; Butelli v. Jer- App. 375; Nugent v. Phila. Tract. 
 
 sey City H. & R. El. Ry. Co., 59 Co., 181 Pa. St. 160, 37 Atl. 206,. 
 
 N. J. L. (30 Vroom) 302, 36 Atl. 40 W. N. C. 243. 
 
 700, 2 Chic. L. J. Week. 202; Bun- 60. Connelly v. Railroad Co. 
 
 yan v. Citizens' R. Co., 127 Mo. (N. J.), 5 ,Am. Electl. Cas. 510. 
 
 12, I Am. & Eng. R. Cas. (N. S.) 61. Smith v. Crescent City R. 
 
 246, 29 S. W. 842; Lake Roland Co., 47 La. Ann. 833, 17 So. 302. 
 
 El. R. Co. V. McKewen, 80 Md. But if he be struck by an electric 
 
 593, 31 Atl. 797; Newark Pass. R. car while walking in a narrow 
 
 Co. V. Bloch, 4 Am. Electl. Cas. path intended for foot travelers,. 
 
 523, 55 N. J. L. 60s; Driscoll v. and in which it was customary for 
 
PEDESTRIANS. 373 
 
 court, after determining that the question of defendant's neg- 
 ligence should have been submitted to the jury, said: "We 
 are thus brought to consider the evidence from the stand- 
 point from which the court viewed it in dismissing the com- 
 plaint on the ground that the plaintiff had failed to show that 
 she was free from contributory negligence. We do not 
 understand the rule to be, with respect to the rapid passage 
 of electric cars, that a person seeing a car in the distance is 
 obliged to wait until it has passed and cars are no longer in 
 sight, for, with the short headway between cars, there is 
 hardly a moment of the day when there would be such a situa- 
 tion. On the contrary, we have many times held that pedes- 
 trians are entitled to a reasonable use of the streets and street 
 crossings, and, when exercising such rights, they are justified 
 in assuming that those managing the cars will respect them. 
 If this is not the rule, and motormen are not required to ob- 
 serve the same care in allowing pedestrians a reasonable use 
 of streets and crossings, then should they desire to cross our 
 busy streets and avenues, in which electric cars are constantly 
 passing, they could never get over, or, if they did, it would be 
 only at the risk of life and limb.*''^ 
 
 people to walk, near the railroad 6iJ^. Copeland v. Met. St. R. R. 
 
 tracks, after dark, if he have taken Co., 67 App. Div. 483, 485. It 
 
 precaution to look back for ap- appeared that the plaintiff had ob- 
 
 proaching cars, and when struck served the position of the ap- 
 
 was 200 or 300 feet from where he proaching car which, 'when she was 
 
 last looked back, and the car was near the track, she saw half a block 
 
 running twenty or twenty-five away and observed at that moment 
 
 miles an hour at the time of the the signal given by her son to 
 
 accident, with only a small kero- stop it. To board the car, which 
 
 sene lamp for a headlight, it can- ran close to the sidewalk, it was 
 
 not be claimed that he was con- necessary that she should be on 
 
 tributorily negligent. Carlson v. the sidewalk opposite the north 
 
 Lynn & P. Ry. Co., 172 Mass. 388, crossing, and to reach that point 
 
 5 Am. Neg. Rep. 365, 52 N. E. in the shortest way, her direction, 
 
 520. ' as she had started from the south 
 
374 
 
 STREET SURFACE RAILROADS. 
 
 § 28. Children. — As has been seen, greater vigilance and 
 caution are to be exercised by street surface railroad com- 
 panies to prevent injuries to children than for the protection 
 of adults.*'' But such company is not Hable for the death of a 
 
 corner, was diagonally across the 
 track over which she concluded 
 she could pass in safety. Assum- 
 ing that the signal given by her 
 son would cause the car to slow 
 down or to stop, she proceeded 
 and had almost reached the side- 
 walk opposite the north corner and 
 had her right foot on the sidewalk 
 and was in the act of placing her 
 left foot thereon, it being raised 
 from the ground for that purpose, 
 when she was struck by the rapidly 
 passing car, which did not stop af- 
 ter the accident occurred until it 
 had gone two lengths farther on. 
 Her judgment that she could cross 
 in safety was in fault only because 
 of the fact that the motorman had 
 decided not to stop, and did not, 
 in answer to the signal, slow down ; 
 nor did he, by the ringing of the 
 bell, notify her of his intentions. 
 And see Madigan v. Third Ave. 
 R. R. Co., 68 App. Div. 123, where 
 it appeared that the accident oc- 
 curred at night while the plaintiflE 
 was attempting to cross Third 
 avenue on the south crosswalk at 
 Sixtieth street, for the purpose of 
 taking a south-bound car; that as 
 he left the walk and again went 
 about midway between the curb 
 and the track he looked down the 
 street but did not see any car com- 
 ing along; that as he stepped upon 
 the north-bound track a companion 
 shouted a warning and in an instant 
 thereafter plaintiflf was struck by 
 the north-bound car, which was 
 
 traveling at the rate of seven miles 
 an hour; no gong being sounded 
 or any attempt made to stop it; but 
 it appeared that the car was 
 lighted; that its headlight was 
 burning, and that there was nothing 
 to obstruct plaintiff's view thereof, 
 except the columns of the elevated 
 railroad located in the street, and 
 he was held contributorily negli- 
 gent. 
 
 62. West Chicago St. R. Co. v. 
 Schwartz, 93 111. App. 387; Colter 
 V. Cincinnati St. Ry. Co., 18 Ohio 
 C. C. 382; Nelson v. Crescent City 
 R. Co., 49 La. Ann. 491, 21 So. 
 631; Koersen v. Newcastle El. St. 
 Ry. Co., 198 Pa. St. 26, 47 Atl. 
 850; Passameneck v. Louisville R. 
 Co., 98 Ky. 19s, 32 S. W. 620, 
 17 Ky. L. Rep. 763; Woeckner v. 
 Erie El. Motor Co., 6 Am. Electl. 
 Cas. 581, 176 Pa. St. 451, 35 
 Atl. 182, 38 W. N. C. 549- A 
 charge of negligence against a 
 street railroad company cannot be 
 predicated on an unexplained ac- 
 cident to a child. Smith v. Kan- 
 sas City El. Ry. Co. (Kan.), 60 
 Pac. 1059. In California it is held 
 that although it is the duty of the 
 company to provide proper ser- 
 vice to manage its cars, it is re- 
 quired to exercise only ordinary 
 care in performing such duty as 
 to an infant who gets upon the 
 track. Cunningham v. Los An- 
 geles St. R. Co., 115 Cal. 561, 
 47 Pac. 452. And see Wallace v. 
 City & Sub. Ry. Co., 5 Am. Electl. 
 
CHILDREN. 
 
 375 
 
 child, non sui juris, resulting from his suddenly coming in 
 front of the car when it is too near him to stop it before in- 
 flicting the injury.*^ a child may attempt, in the streets of a 
 crowded city, to cross the street railroad tracks In front of an 
 approaching car. He is bound to use reasonable care under 
 the circumstances, but he need not, as matter of law, antic- 
 ipate that he may fall, nor are those operating the approach- 
 ing car required to assume that he may fall. It is a question 
 for the jury.** The same rule is applicable to a child say 
 
 Cas. 554, 26 Oreg. 174; San An- 
 tonio St. Ry. Co. V. Mechler, 5 
 Am. Electl. Cas. 585, 87 Tex. 628; 
 30 S. W. 899; Reiley v. Salt 'Lake 
 R. T. Co., 5 Am. Electl. Cas. 594, 
 10 Utah, 428. 
 
 63. Culbertson v. Crescent City 
 R. Co., 48 La. Ann. 1376, 20 So. 
 902; Sciortino v. 'Crescent City R. 
 Co., 49 La. Ann. 7, 21 So. 114; 
 Finlay v. West Chicago St. Ry. 
 Co., 90 111. App. 368; Graham v. 
 Consol. Tract. Co. (N. J.), 44 
 Atl. 964; Frank v. Met. St. Ry. 
 Co., 44 App. Div. (N. Y.) 243, 
 60 N. Y. Supp. 616; Hirschman 
 V. Dry Dock, etc., Co., 46 App. 
 Div. (N. Y.) 621, 61 N. Y. Supp. 
 304; Hunter v. Consol. Tract. 
 Co., 193 Pa. St. 557, 44 Atl. 578; 
 Ogier V. Albany Ry. Co., 5 Am. 
 Electl. Cas. 545, 88 Hun (N. Y.), 
 486; Fletcher v. Scranton Tract. 
 Co., 185 Pa. St. 147, 39 Atl. 837; 
 Mulcahy v. El. Tract. Co., 185 
 Pa. St. 427, 39 Atl. 1 106; Ledman 
 V. D. D., etc., Co., 28 App. Div. 
 (N. Y.) 197, 50 N. Y. Supp. 895; 
 Mullen V. Springfield St. R. Co., 
 164 Mass. 450, 41 N. E. 664; Funk 
 V. El. Tract. Co., 175 Pa. St. 559, 
 34 Atl. 861 ; Flannigan v. Peo- 
 ple's Pass. R. Co., 163 Pa. St. 
 
 102, 29 Atl. 743; Chilton V. Cen- 
 tral Tract. Co., 152 Pa. St. 425, 25 
 Atl. 606, 31 W. N. C. 409, .23 
 Pittsb. L. J. (N. S.) 413; Sheets 
 V. Connolly St. R. Co., 54 N. J. 
 L. (25 Vroom) 518, 24 Atl. 483; 
 Baker v. Eighth Ave. R. Co., 62 
 Hun (N. Y.), 39, 16 N. Y. Supp. 
 319, 41 St. Rep. (N. Y.) 353; Ken- 
 nedy V. St. Louis R. Co., 43 Mo. 
 App. i; Morey v. Gloucester St. 
 R. Co., 171 Mass. 164, 50 N. E. 
 530. 
 
 64. Fenton v. Second Ave. R. 
 Co., 126 N. Y. 625, 56 St. Rep. 
 (N. Y.) 38s, 26 N. E. 967, revg. 
 56 Hun (N. Y.), 99; Lhowe v. 
 Third Ave. R. Co., 14 Misc. (N. 
 Y.) 612, 71 St. Rep. (N. Y.) 451, 
 36 N. Y. Supp. 463 ; Block v. Har- 
 lem, etc., Co., 28 St. Rep. (N. Y.) 
 495, 9 N. Y. Supp. 164; Dorsch v. 
 Brooklyn Heights R. R. Co., 68 
 App. Div. 222. 
 
 In the case last cited, it was held 
 that the question of contributory 
 negligence should be submitted to 
 the jury, where the plaintiff, a girl 
 nine years old, having been run 
 over by one of the defendant's 
 electric cars while attempting ' to 
 cross a city street, was shown to 
 be near the gutter, and before at- 
 
3/6 STREET SURFACE RAILROADS. 
 
 fourteen years of age, intelligent and well grown, as to an 
 adult person/s And it has been held that a boy eight years 
 old, of ordinary intelligence for that age, standing on the 
 street car track while a car is approaching sixty to seventy- 
 five feet from him at the rate of nine miles an hour, not 
 being confused, is so negligent that a verdict in his favor will 
 be set aside; the motorman perceived that he saw the car 
 which struck him, and therefore made no effort to stop/^ 
 But the capacity of a child four or five years of age to care 
 for its safety is a question for the jury.*^ The same rule has 
 been repeatedly applied by the New York Court of Appeals 
 to infants varying in age from six to fifteen years. And in a 
 recent case it was held that the court might not, as matter of 
 law, say that a boy eight years of age and intelligent for that 
 age, was non sui juris; and that as matter of law the same 
 degree of care or circumspection should be required of such 
 a child as of an adult.** A street railroad company is liable 
 
 tempting to cross the street had 32 Misc. Rep. (N. Y.) 289, 66 N. 
 
 looked both ways and observed Y. Supp. 801. 
 
 that the car which ran over her was 67. So held where a child was 
 
 then about 170 feet distant, and walking backward on a street car 
 
 then proceeded at a fast walk across track toward a moving car and 
 
 the track. ' was struck by the car. Markie v. 
 
 65. Wills V. Ashland, etc., Ry. Consol. Tract. Co. (N. J.), 46 
 Co., 108 Wis. 2SS, 84 N. W. 998. Atl. 573; Adams v. Nassau El. R. 
 So of nine years of age and of Co., 51 App. Div. (N. Y.) 241, 
 unusual intelligence. Ryan v. La 64 N. Y. Supp. 818; Finkelstein v. 
 Crosse City Ry. Co., 108 Wis. 122, Brooklyn Heights R. Co., 51 App. 
 83 N. W. 770; Brady v. Consol. Div. (N. Y.) 287, 64 N. Y. Supp. 
 Tract. Co. (N. J), 4S Atl. 805; giS- 
 
 Fitzhenry v. Consol. Tract. Co. (N. 68. Costello v. Third Ave. R. 
 
 J.), 46 id. 698; Hicks v. Nassau Co., 161 N. Y. 317, 55 N. E. 897, 
 
 F:1. R. Co., 47 App. Div. (N. Y.) citing McGovern v. N. Y. C, etc., 
 
 479, 62 N. Y. Supp. S97; Thompson Co., 67 N. Y. 421; O'Mara v. H. 
 
 V. B. R. Co., 5 Am. Electl. Cas. R. R. Co., 38 id. 449; Reynolds v. 
 
 S3S, 145 N. Y. 196, 39 N. E. 709, N. Y. C, etc., Co., 58 id. 248; Byrne 
 
 64 St. Rep. (N. Y.) 591. v. Same, 83 id. 621 ; Dowling v. 
 
 66. Griffith V. Met. St. Ry. Co., Same, 90 id. 671 ; Moebus v. Herr- 
 
CHILDREN. 
 
 377 
 
 for its gross negligence in the management of a car whereby 
 the death of a child less than three years of age resulted, to 
 whom contributory negligence could not be attributed, al- 
 though it was suffered to roam unattended in the public 
 streets.*^ While it is true that a child non sui juris and over, 
 say, five years of age, is not required to exercise the same 
 degree of care which an adult would be required to exercise, 
 yet, such a child is bound to exercise some care — care at 
 least commensurate with its age and intelligence — in ap- 
 proaching and passing known places of danger; therefore it 
 was held that a child between eight and nine years of age 
 attempting to cross a city street in the middle of a block, 
 
 mann, io8 id. 353 ; Stone v. Dry 
 Dock, etc., Co., 115 id. 109, no; 
 Swift V. Staten Isl. R. T. Co., 123 
 id. 64s, 650. It was also held that 
 the presumption of law was that 
 a boy eight years of age is not 
 sui juris, and it rested upon the 
 defendant to establish that he was 
 a bright and intelligent boy and 
 sui juris, notwithstanding the fact 
 that he was but eight years of age; 
 ■citing Tucker v. N. Y., etc., Co., 
 124 N. Y. 308; Zwack v. N. Y., 
 etc., Co., 160 id. 362. And see 
 Goldstein v. D. D., etc., Co., 35 
 Misc. Rep. (N. Y.) 200, 71 N. Y. 
 Supp. 477; Brady v. Consol. 
 Tract. Co. (N. J.), 42 Atl. 1054; 
 Henderson v. Detroit Citizens' St. 
 Ry. Co., 116 Mich. 368, 10 Am. 
 & Eng. R. Cas. (N. S.) 812, 74 
 N. W. S2S, 4 Det. Leg. N. 1205; 
 Consol. & C. P. R. Co. v. Wyatt, 
 59 Kan. 772, 52 Pac. 98, 9 Am. 
 & Eng. R. Cas. (N. S.) 7S6. A 
 "boy ten years of age, who at- 
 tempted to cross a street car track 
 ^fter dark, above the crossing, in 
 
 front of an approaching car not 
 more than ten feet distant, going 
 at the usual rate of speed, was 
 held so negligent as to prevent a 
 recovery for injuries sustained in a 
 collision. De loia v. Met. St. R. 
 Co., 37 App. Div (N. Y.) 455, 56 
 N. Y. Supp. 22; Ruschenberg v. 
 So. El. R. Co. (Mo.), 61 S. W. 
 626; Chicago St. Ry. Co. v. Tuohy, 
 95 111. App. 314; Pekin v. McMa- 
 hon,l54 111. 141; 39 N. E. 484; Hei- 
 man v. Kinnare, igo 111. 156; Chi- 
 cago City Ry. Co. v. Wilcox, 138 
 id. 370; ■■ 29 N. E. 899; George 
 v. Los Angeles Ry. Co., 126 Cal. 
 357, 58 Pac. 819, 46 L. R. A. 829; 
 Consol. City & C. P. R. Co. v. 
 Carlson, 58 Kan. 62, 48 Pac. 635, 
 7 Am. & Eng. R. Cas. 274. 
 
 69. Bergen Co. Tract. Co. v. 
 Heitman, 61 N. J. L. 682, 40 Atl. 
 651, II Am. & Eng. R. Cas. (N. 
 S.) 286, 4 Am. Neg. Rep. 511; 
 Barnes v. Shreveport City R. Co., 
 S Am. Electl. Cas. 452, 47 La. Ann. 
 1218; Mitchell v. Tacoma R. & 
 M. Co., 13 Wash. 560, 43 Pac. 528. 
 
3/8 
 
 STREET SURFACE RAILROADS. 
 
 either without looking for an approaching street car or in: 
 plain and heedless disregard of its rapid approach, is negli- 
 gent in law/° If the railroad company's employees are 
 grossly negligent, whereby its car runs over and kills a child 
 say four and one-half years of age, or under, the negligence 
 of the parents in permitting it to wander upon the track will 
 not relieve the company from liability for its deaths' If the 
 negligence of the railroad company be not gross, then the 
 child or parent cannot recover damages under such circum- 
 stances. Whether the parents were negligent is nearly 
 always a question for the jury.^^ In a recent case it appeared 
 
 70. Weiss V. Met. St. R. Co., 
 33 App. Div. (N. Y.) 221, S3 N. 
 Y. Supp. 449; afifd., 165 N. Y. 
 66s, S9 N. E. 1 132. And see Morey 
 V. Gloucester St. R. Co., 171 Mass. 
 164, 50 N. E. S30; McLaughlin v. 
 New Orleans & C. R. Co., 48 
 La. Ann. 23, 18 So. 703; Bello v. 
 Met. St. R. Co., 2 App. Div. (N. 
 Y.) 313, 73 St. Rep. (N. Y.). 18, 
 37 N. Y. Supp. 969; Manahan v. 
 Steinway & H. P. Ry. Co., 125 N. 
 Y. 760, 35 St. Rep. (N. Y.) 813, 26 
 N. E. 736. 
 
 71. Fox V. Oakland Consol. R. 
 Co., 118 Cal. ss, 9 Am, & Eng. 
 R. Cas. (N. S.). 82s, so Pac. 2S. 
 And see post, § 31. 
 
 72. Neun V. Rochester Ry. Co., 
 16s N. Y. 146, s8 N. E. 876; 
 Schwartz v. Union Tract. Co. (Pa. 
 C. P.), 30 Pittsb. L. J. (N. S.) 
 153; Albert v. Albany Ry. Co., 6 
 Am. Electl. Cas. S29. "To suffer 
 a child to wander on the street, 
 has the sense of permit. If such 
 permission or sufferance exist, it 
 is negligence. This is the asser- 
 tion of a principle. But whether 
 
 the mother did suffer the child to 
 wander is a matter of fact, and is 
 the subject of evidence, and this 
 must depend upon the care she- 
 took of her child. Such care must 
 be reasonable care, depending on 
 the circumstances. This is a fact 
 for the jury." Per Agnew, Ch. J.,, 
 in Phila. & R. R. Co. v. Long, 
 7S Pa. St. 257. And see Dunseath 
 V. Pittsb., etc.. Tract. Co., S Am. 
 Electl. Cas. 561, 161 Pa. St. 124; 28 
 Atl. 1020; West Chicago St. R. Co. 
 V. Scanlon, 68 III. App. 626; affd. in 
 168 111. 34, 48 N. E. 149; Passamen- 
 eck V. Louisville R. Co., 98 Ky. 19S, 
 32 S. W. 62a, 17 Ky. L. Rep. 
 763; Harkens v. Pittsb., etc.. 
 Tract. Co., 6 Am. Electl. Cas. S7i>- 
 173 Pa. St. 147; Fullerton v. Met. 
 St. Ry. Co., 63 App. Div. (N. Y.) 
 I, 2S N. Y. L. J. 1980, 71 N. Y. 
 Supp. 326; affd., 170 N. Y. ; 
 
 Mitchell V. Tacoma R. & M. 
 Co., 9 Wash. 120, 37 Pac. 341; 
 Compagnie C. F. a Pass v. 
 Dufresne, M. L. Rep. 7 Q. B. 214; 
 Adams v. Met. St. Ry. Co., 60- 
 App. Div. (N. Y.) 188, 69 N. Y. 
 
INFIRM PERSONS. 379^ 
 
 that an infant four years of age, conceded to be non sui juris, 
 was run down by one of the defendant's horse cars while walk- 
 ing by the side of his father, who was wheeling another child 
 in a baby-carriage across the defendant's tracks. The court 
 charged, among other things: " If you find that the plaintiff 
 could have crossed the street and avoided the car but for the 
 carelessness of the defendant's driver, and that he did driv2 
 impetuously, you must find for the plaintiff; " and it was held 
 error as having eliminated from the charge the question of 
 the contributory negligence of the plaintiff's father. ''^^ 
 
 § 29. Infirm persons. — The rules applicable in collision be- 
 tween street cars and children are applicable also in the case- 
 of aged and infirm persons, save that the employees of the 
 railroad company managing a car approaching a crossing, or 
 a pedestrian, are not able to detect the fact so readily of an 
 adult pedestrian's incapacity or disability. Knowing that 
 the pedestrian upon the track or near it and apparently about 
 to cross is an aged or an infirm person, the motorman or 
 gripman is bound to greater caution in approaching and 
 
 Supp. 1117; Jones V. Brooklyn for the death of her child twenty 
 
 Heights R. Co., S Am. Electl. Cas. months old, which she has left in 
 
 533, 10 Misc. Rep. (N. Y.) 543. the kitchen and allows to pass- 
 
 Whether a mother is justified in her out into the street and across 
 
 believing that she can rescue her the sidewalk and go twenty-eight 
 
 child from an approaching cable feet to a street railroad track, 
 
 car within eighty or ninety feet where it is killed in her immedi- 
 
 distance without danger to herself, ate view, she, meantime, talking to 
 
 is a question of fact for the jury. friends and not knowing that it 
 
 West Chicago St. R. Co. v. Lide- was her child that was killed until 
 
 mann, 87 111. App. 638; affd., 58 after the accident. Johnson v.- 
 
 N. E. 367; Marteneau v. Rochester Reading City Pass. R. Co., i6a 
 
 R. Co., 81 Hun (N. Y.), 263, 62 Pa. St. 647, 28 Atl. icoi, 34 W. 
 
 St. Rep. (N. Y.) 722, 30 N. Y. N. C. 203. 
 
 Supp. 778; Barnes v. Shreveport 72^4. Lifschitz v. D. D., E. B. & 
 
 C. R. Co., 47 La. Ann. 1218, 17 B. R. R. Co., 67 App. Div. 602. 
 So. 782. A mother cannot recover 
 
380 STREET SURFACE RAILROADS. 
 
 passing him; and whether or not the aged or infirm person 
 is negligent in attempting to cross the track at the time and 
 place is quite generally a question for the jury. A person 
 must reasonably exercise all the faculties which he has to 
 learn of an approaching car and to keep out of its way; so 
 that, with the entire street open to her, a woman, knowing 
 that she cannot hear a car's approach and that a car is com- 
 ing behind her, who walks on the street railroad track, is 
 guilty of such negligence that she cannot recover damages 
 for an injury occasioned in being run down.^^ 
 
 § 30. Bicyclists. — It is a notorious fact that bicyclists are 
 accustomed to ride between the tracks of a street railroad or 
 between the double tracks until a car approaches from the 
 rear to within a short distance before turning out; and the 
 employees of the company in control of that car are not 
 chargeable with negligence in approaching at the usual speed 
 from the rear, although the bicyclist does not look back or 
 give any indication that he heard the gong or other sound 
 of the car's approach, and suddenly turns and attempts to 
 cross the track in front of the car.^t And it is contributive 
 
 73- Gilmartin v. Lack. Val. R. 70 111. App. iii, 2 Chic. L. J. 
 
 T. Co., 186 Pa. St. 193, 40 Atl. 322. Wkly. 271; Hall v. West End St. 
 
 And see Walls v. Rochester R. R. Co., 168 Mass. 461, 47 N. E. 
 
 Co., 92 Hun (N. Y.), 581, 72 St. 124; Robbins v. Springfield St. R. 
 
 Rep. (N. Y.) 250, 36 N. Y. Supp. Co., 165 Mass. 30, 42 N. E. 334; 
 
 1 102; Mills V. Brooklyn ' City R. Farrar v. New Orleans & C. R. 
 
 Co., 10 Misc. Rep. (N. Y.) i, 62 Co., 52 La. Ann. 417, 26 So. 995; 
 
 St. Rep. (N. Y.) 64s, 30 N. Y. Killen v. Brooklyn Heights R. 
 
 Supp. 532; Schutte V. New Or- Co., 48 App. Div. (N. Y.) 557, 62 
 
 leans C. & L. R. Co., 44 La. N. Y. Supp. 927. 
 
 Ann. 509, 10 So. 811; Butelli v. 74. Gagne v. Minneapolis St. R. 
 
 Jersey City H. & R. El. Co., 59 Co. (Minn.), 79 N. W. 671 ; Mein v. 
 
 N. J. L. (30 Vroom) 302, 36 Atl. La Crosse City Ry. Co. (C. C. 
 
 700, 2 Chic. L. J. Wkly. 202; West App. 7th C), 92 Fed. 85, 34 C. 
 
 •Chicago St. R. Co. V. Ranstead, C. A. 224; Gould v. Union Tract. 
 
BICYCLIST. 
 
 38r 
 
 negligence, as matter of law, for a man of matufe age, in 
 good health and in full possession of all his faculties, to ride 
 upon a bicycle upon the tracks of an electric street railroad, 
 in the same direction in which the cars are accustomed to 
 run on those tracks, without looking or listening for the ap- 
 proach of the cars. '5 jjjg vehicle is swift and noiseless. 
 
 Co., 190 Pa. St. 198, 42 Atl. 477, 
 43 W. N. C. 521, 5 Am. Neg. Rep. 
 717; Lurie v. Met. St. R. Co., 18 
 Misc. Rep. (N. Y.) 81, 40 N. Y. 
 Supp. 1 129. 
 
 75. Everett v. Los Angeles Con- 
 sol. El. Ry. Co., 6 Am. Electl. 
 Cas. 460, 115 Cal. los, 34 L. R. A. 
 350, 43 Pac. 207; affd., 46 id. 889; 
 Cleveland, P. & E. R. Co. v. 
 Nixon, 21 Ohio C. C. 736, 12 O. 
 C. D. 79; Bennett v. Detroit 
 Citizens' St. R. Co. (Mich.), 
 82 N. W. S18; Medcalf v. St. Paul 
 City R. Co. (Minn.), 84 N. W. 633; 
 Bacon v. Consol. Tract Co. (Pa. 
 C. P.), 30 Pittsb. L. J. (N. S.) 
 431. A bicycle rider can lawfully 
 use the aperture existing between 
 the rails of a cable road and in 
 which the cable runs He is under 
 no legal obligation to look behind 
 him in order to detect the ap- 
 proach of a cable car which gives 
 no signal of its approach, the rum- 
 ble and noise of which he hears 
 only just as he is struck by it. 
 Rooks V. Houston, etc., R. Co., 10 
 App. Div. (N. Y.) 98, 41 N. Y. 
 Supp. 824, 29 Chic. Leg. N. 118. 
 The appellate court said: "The 
 trial court held him to be guilty 
 of contributory negligence, as mat- 
 ter of law, because he failed to 
 look back. No such duty was im- 
 posed upon him, as matter of law. 
 His primary duty was to look in 
 
 front of him, indeed, to keep a 
 good lookout all around. But he 
 cannot ride upon his bicycle at all 
 — certainly not with safety — and 
 yet keep his head turned so as to 
 observe what was going on behind. 
 Whether his failure to observe the 
 car at the time of, and under the 
 circumstances surrounding the acci- 
 dent, amounted to contributory 
 negligence, was, to say the least, 
 a question for the jury. He cer- 
 tainly had the right to expect the 
 usual warning in his rear. Had 
 that been given, he would, of 
 course, be bound to protect him- 
 self by getting ofif the track and 
 making way for the approaching 
 car. Here however there was no 
 warning. The gong was not 
 sounded. There was no whistle, 
 cry, or notice of any kind. The 
 plaintifif was proceeding lawfully 
 and with a justifiable sense of se- 
 curity. The first that he heard was 
 the rumble and noise of the cable 
 car." 
 
 One unaccustomed to riding a 
 bicycle, attempting to ride it upon 
 a city street, is not thereby so 
 negligent as to preclude a recovery 
 for injuries sustained by being run 
 over, without warning, by a street 
 car, where she lost control of the 
 wheel and ran into the street into 
 which the car was moving. Louis- 
 ville R. Co. V. Blaydes, 21 Ky. L. 
 
382 STREET SURFACE RAILROADS. 
 
 Those managing the cars have the right to assume that he can 
 and will keep out of the way. Of course, if the bicyclist be a 
 child or deprived of some faculty, possessing which he might 
 have recognized the car's approach, these facts will be consid- 
 ered on the question of his contributive negligence.'^ Where 
 death is occasioned to a bicyclist in collision with a street car 
 which rounded a curve just as he was emerging from behind 
 a car headed in the opposite direction, which he had been fol- 
 lowing and which had stopped for a signal before entering 
 upon the curve, he being familiar with the curve, the streets, 
 and the danger, and being an expert rider, a recovery cannot 
 be had for his death.'' While a trolley wire charged with 
 electricity, hanging down in the public street, is a condition 
 supporting the presumption that there was some disarrange- 
 ment in the appliances, however perfect may have been their 
 mechanical construction, and raises the inference of negli- 
 gence;'* yet, where the only proof of the fact is the testimony 
 of a plaintiff who claimed that while bicycling upon an abso- 
 lutely dry asphalt pavement, on a clear, dry day, his bicycle 
 having a rubber tire, he came in contact with a wire so hang- 
 ing down and suffered injury thereby, and the scientific fact 
 is proved without dispute that the asphalt when dry is a non- 
 conductor of electricity and so is the concrete which forms 
 the basis of the pavement and the rubber which is the tiring 
 of the bicycle wheels, a verdict in favor of the bicyclist against 
 
 Rep. 480, SI S. W. 820; affd. on Mingle, 103 Tenn. 667, 56 S. W. 
 
 rehearing, 52 S. W. 960, 6 Am. 23 ; El. Co. v. Simpson, 21 Colo. 371, 
 
 Neg. Rep. 531. 41 Pac. 499; Giraude v. Imp. Co., 
 
 76. Roberts v. Spokane St. R. 107 Cal. 120, 40 Pac. 108; Uggla v. 
 
 Co., 23 Wash. 325, 63 Pac. 506. West End St. Ry. Co., 4 Am. 
 
 yy. Cardonner v. Met. St. Ry. Electl. Cas. 389, 160 Mass. 351, 35 
 
 Co., 38 App. Div. (N. Y.) 597, 56 N. E. 1126; Snyder v. El. Co. (W. 
 
 K. Y. Supp. 500. Va.), 39 L. R. A. 502, 28 S. E. 
 
 78. Chattanooga El. Ry. Co. v. 733. 
 
PROXIMATE CAUSE. 
 
 383 
 
 the trolley company will be set aside.^' Where a railroad 
 company by its charter is required " to construct and keep in 
 repair good and sufficient bridges over or under the railway, 
 where any public or other road shall cross the same, so that 
 the passage of carriages, horses, and cattle across the said 
 railway shall not be impeded thereby;" and at the grade 
 crossing of a turnpike by the single track railroad of the com- 
 jpany the bridging consisted of planks four inches thick, laid 
 parallel with the rails, and the crossing is diagonal and dan- 
 gerous because the view of approaching trains was obstructed, 
 a bicyclist riding over the track and thrown from her wheel 
 and injured by reason of a gap in the bridging just inside the 
 further rail in her course, caused by the removal of six feet 
 in length of one of such planks, may recover for her injuries 
 against the railroad company. Considering the character of 
 the crossing and her duty to look for approaching trains, her 
 failure to notice the gap in the bridging is not negligence, 
 as matter of law.*" 
 
 § 31. Proximate cause; or avoidable injury, notwithstanding 
 contributive negligence. — Contributory negligence must be a 
 direct and proximate cause of an injury in a collision with 
 a street car; otherwise, the company is liable if its negligence 
 is a proximate cause of the injury.^' It may be stated as a 
 
 79. Walters v. Syracuse R. T. 
 R. Co., 64 App. Div. (N. Y.) 150, 
 71 N. Y. Supp. 853. 
 
 80. Sonn V. Erie Ry. (N. J. Sup.), 
 49 Atl. 458. 
 
 81. Grand Trunk Ry. Co. v. 
 Ives, 144 U. S. 408, 36 L- Ed. 48S; 
 Costello V. Third Ave. R. Co., 161 
 N. Y. 317; Bowen v. So. Ry. Co. 
 (S. C), 36 S. E. 590; Mc Andrews v. 
 St. Louis & S. Ry. Co., 83 Mo. 
 
 App. 233; Gallagher v. Manchester 
 St. Ry., 70 N. H. 212, 47 Atl. 610; 
 Tate V. Buffalo Ry. Co., 55 App. 
 Div. (N. Y.) 507, 67 N. Y. Supp. 
 403; Roberts v. Spokane St. Ry. 
 Co., 23 Wash. 32s, 63 Pac. 506; 
 Murphy v. Derby St. R. Co., 73 
 Conn. 249, 47 Atl. 121; Flynn v. 
 Louisville Ry. Co. (Ky.), 62 S. W. 
 490 ; Webb v. Chicago City Ry. Co., 
 83 111. App. 565 ; Laufer v. Bridge- 
 
384 
 
 STREET SURFACE RAILROADS. 
 
 rule that a plaintiff who, by his own negligence, has placed 
 himself in a dangerous position where an injury was likely to 
 result, may still recover for such injury if the defendant with 
 knowledge, or such notice as is equivalent to knowledge, of 
 plaintiff's danger, failed to exercise reasonable care by which 
 the injury might have been avoided, unless the injury was 
 the result of the concurrent negligence of both parties.^^ 
 
 port Tract. Co., 68 Conn. 475, 37 
 Atl. 379 ; Redford v, Spokane St. R. 
 Co., IS Wash. 419, 46 Pac. 650; 
 Maxwell v. Wilmington City Ry. 
 Co., I Marv. (Del.) 199, 40 Atl. 
 945 ; Garrity v. Detroit Citizens' St. 
 R. Co., 112 Mich. 369, 70 N. W. 
 ioi8, Z7 L. R. A. 529; Baltimore 
 City B. R. Co. v. Cooney, 87 Md. 
 261, II Am. & Eng. R. Cas. (N. 
 S.) 759, 39 Atl. 859. 
 
 The parents of a child run over 
 by a street car cannot recover 
 against the company because the 
 car ran at an excessive rate of 
 speed, since it appeared that the 
 accident would have happened in 
 the same way had the car been 
 going at a reasonable speed, and 
 the speed was not the proximate 
 cause of the injury. Holdridge v. 
 Mendenhall, 108 Wis. I, 83 N. W. 
 1 109. In Arkansas it has been held 
 that it was not sufificient that the 
 employees in charge of the street 
 car might have become aware of 
 plaintifif's dangerous position by 
 the exercise of reasonable care. 
 Johnson v. Stewart, 62 Ark. 164, 
 34 S. W. 889. And see Johnson v. 
 Superior R. T. R. Co., 91 Wis. 
 233, 64 N. W. 753; Austin Dam & 
 S. R. Co. V. Goldstein, 18 Tex. 
 Civ. App. 704, 45 S. W. 600; Siek 
 V. Toledo Consol. St. R. Co., 16 
 Ohio C. C. 393, 9 C. D. 51. 
 
 A, recovery cannot be had for 
 injuries caused by an electric car 
 because of the negligence of the 
 motorman, where the person in- 
 jured could easily have avoided 
 the injury by the exercise of or- 
 dinary care. Cain v. Macon Con- 
 sol. St. R. Co., 97 Ga. 298, 22 S. 
 E. gi8. And see MacLeod v. 
 Graven (C. C. App. 6th C), 19 C. 
 C. A. 616, 43 U. S. App. 129, 73 
 Fed. 627; Boentgen v. N. Y. & 
 H. R. Co., 36 Apip. Div. (N. Y.) 
 460, ss N. Y. Supp. 847. 
 
 82. Baltimore Consol. R. Co. v. 
 Rifcowitz, 89 Md. 338, 43 Atl. 762; 
 McKeown v. Cincinnati St. R. Co., 
 2 Ohio Leg. N. 388; Orr v. Cedar 
 Rapids & M. C. R. Co., 94 Iowa, 
 423, I Am. & Eng. R. Cas. (N. 
 S.) 239, 62 N. -W. 851; Cincinnati 
 St. R. Co. V. Whitcomb (C. C. 
 App. 6th C), 5 Am. Electl. Cas. 
 602, 66 Fed. 91S, I Ohio Dec. Fed. 
 S; North Baltimore Pass. R. Co. 
 V. Arnreich, 78 Md. 589, 28 Atl. 
 809; Mapes V. Union R. Co., 56 
 App. Div. (N. Y.) S08, 67 N. Y. 
 Supp. 358; Ennis v. Union Depot 
 R. Co., IS5 Mo. 20, 55 S. W. 878; 
 Owensboro City R. Co. v. Hill 
 (Ky.), 56 S. W. 21; Cooney v. 
 So. El. R. Co., 80 Mo. App. 226, 
 2 Mo. App. Rep. 646; Totarella v. 
 N. Y. & Q. C. Ry. Co., S3 App. 
 Div. (N. Y.) 413, 6s N. Y. Supp. 
 
PROXIMATK CAUSE. 
 
 385 
 
 Placed in a position of peril by the negligence of the opera- 
 tors of the street car, the driver of a team is not himself so 
 negligent as to prevent a recovery for injuries where he in- " 
 creases the peril by an efifort, in the exercise of ordinary care, 
 to avoid it, or fails to lessen it or escape by the exercise of 
 unusual courage and self-possession.^3 if a child, by its own 
 
 1044; Tesch V. Milwaukee El. Ry. 
 & L. Co., 108 Wis. 593. 84 N. W. 
 823; O'Keefe v. St. Louis & S. 
 R. Co., 81 Mo. App. 386; Griffin 
 V. Toledo & M. V. Ry. Co., 21 
 Ohio C. C. 547, II O. C. D. 
 749; Watermolen v. Fox River El. 
 R. & P. Co. (Wis.), 85 N. W. 
 663; Warren v. Union Ry. Co., 46 
 App. Div. (N. Y.) S17, 61 N. Y. 
 Supp. 1009; Davies v. People's R. 
 Co., 67 Mo. App. 598; Schoenholtz 
 V. Third Ave. R. Co., 16 Misc. 
 Rep. (N. Y.) 7, 73 St. Rep. (N. 
 Y.) 263, 37 N. Y. Supp. 682; Read 
 V. Brooklyn H. R. Co., 32 App. 
 Div. (N. Y.) S03, 53 N. Y. Supp. 
 209; Houston City St. R. Co. v. 
 Farrell (Tex. Civ. App.), 5 Am. 
 Electl. Cas. 576, 29 S. W. 942; 
 Czezewzka v. Benton-Bellefontaine 
 R. Co., 121 Mo. 201, 25 S. W. 911 ; 
 Oliver v. Denver Tramway Co., 
 13 Colo. App. 543, 59 Pac. 79; 
 Brachfeld v. Third Ave. R. Co., 
 29 Misc. Rep. , (N. Y.) 586, 60 N. 
 Y. Supp. 988; Kelley v. Louisville 
 R. Co., 20 Ky. L. Rep. 471, 46 S. 
 W. 688; .Montgomery v. Lansing 
 City El. R. Co., 5 Am. Electl. Cas. 
 471, 103 Mich. 46, 29 L. R. A. 287, 
 61 N. W. 343; Baltimore Tract. 
 Co. v. Wallace, 77 Md. 435, 21 
 Wash. L. Rep. 313, 26 Atl. 518; 
 Consol. Tract. Co. v. 'Haight, 59 
 N. J. L. (30 Vroom) 577, 37 Atl. 
 135. 
 
 25 
 
 In Wisconsin it is held that a 
 motorman who fails to exercise 
 reasonable care to avoid injuring 
 one who, by her own negligence, 
 has placed herself in danger, is 
 guilty of wanton and reckless con- 
 duct, and the company is liable for 
 the injury inflicted. Little v. Su- 
 perior R. T. R. Co., 88 Wis. 402, 
 60 N. W. 70s. 
 
 If an injury is caused by a mo- 
 torman starting his car and run- 
 ning it against a wagon which had ' 
 been upset in a previous collision 
 with a car by the concurrent neg- 
 ligence of the driver, an action 
 may be maintained . for the injury 
 in the second collision against the 
 railroad company. McDevitt v. 
 Des Moines St. R. Co., 99 Iowa, 
 141, 6^ Am. & Eng. R. Cas. (N. 
 S.) 106, 68 N. W. 595. It is error 
 to charge that if defendant could 
 have avoided the accident by the 
 use of reasonable care, it was 
 liable, even if the accident were 
 caused in the first instance by the 
 carelessness of plaintiflf. Good- 
 man V. M. St. R. Co., 63 App. 
 Div. (N. Y.) 84, 71 N. Y. Supp. 
 177. 
 
 83. Gibbons v. Wilkes-Barre & S. 
 St. R. Co., IS5 Pa. St. 279, 26 Atl. 
 417. But see -Rhing v. Broadway 
 & Seventh Ave. R. Co., 53 Hun 
 (N. Y.), 321, 6 N. Y. Supp. 641, 
 25 St. Rep. (N. Y.) 563. In the 
 
386 
 
 STREET SURFACE RAILROADS. 
 
 negligence in part at least, is thrown upon the fender of a 
 street car, it is the duty of the railroad company, by its ser- 
 vants, to so operate the car as to prevent further injury, if 
 it can do so by the exercise of reasonable care.^* 
 
 case last cited the court said: " In 
 this condition of the proof, the 
 right of recovery for subsequent 
 injuries incurred by reason of the 
 fact that the driver of the car 
 erred in judgment as to the best 
 means to be used to extricate the 
 plaintiff from the position in which 
 he had placed himself, by reason 
 of his own negligence, does not 
 exist. A right of action, under 
 such circumstances, can arise only 
 where the injury was inflicted or 
 increased because of the doing or 
 the omission to do some act or 
 acts the doing of which or the 
 omission to do which was other 
 than the result of an error of judg- 
 ment as to the means to be used 
 in extricating the plaintiff. Any 
 other rule would, where there 
 were various steps in the happen- 
 ing of an accident culminating in 
 the injuries suffered, authorize a 
 division of liability as to those 
 various steps which contributed to 
 the happening of the whole ac- 
 cident. The plaintiff would not be 
 able to recover for some of these 
 steps by reason of his contribu- 
 tory negligence. But if at any 
 stage of the happening of the ac- 
 cident he was free from contribu- 
 tory negligence, the liability of the 
 defendant would begin, notwith- 
 standing the fact that it had been 
 guilty of no negligence whatever 
 in the initiation of the events 
 which produced the injury. It is 
 clear that this proposition cannot 
 
 be maintained, because if the 
 plaintiff was guilty of contribu- 
 tory negligence at all, the effects 
 of such negligence permeate the 
 whole transaction." 
 
 84. Weitzman v. Nassau El. St. 
 Ry- Co., 33 App. Div. (N. Y.) 
 S8S, S3 N. Y. Supp. 90s. In this 
 case it appeared that a child about 
 five years of age was thrown upon 
 the fender of a street car and was 
 carried a distance of more than 
 thirty feet, when he rolled from 
 the fender and was run over by 
 the car and killed. The court, re- 
 versing the judgment below in 
 favor of the defendant, said: 
 " The law does not contemplate 
 that a street railroad corporation 
 shall become a modern Juggernaut, 
 with its sacrificial car traversing 
 with relentless energy the streets 
 and avenues of our populous cities, 
 running down the aged, the feeble 
 and the helpless, who may chance 
 to cross its path, or that, having 
 gathered them into its net, it shall 
 carry them along and offer them 
 as a sacrifice to the cruel wheels 
 at the pleasure of the motorman. 
 Conceding that the plaintiff's in- 
 testate was sui juris, and that he 
 was, as a matter of law, guilty of 
 contributory negligence in step- 
 ping upon the track of the de- 
 fendant at the same moment that 
 the car arrived at the point of con- 
 tact, the evidence in the case 
 shows that the child was not killed 
 by the original impact, but that 
 
ATTRIBUTABLE NEGLIGENCE. 
 
 387 
 
 § 32. Attributable negligence. — As has been seen in a for- 
 mer section, the negHgence of those who have the right to 
 and should control the movements of a child non sui juris, 
 is sometimes attributable to the child, so that under statutes 
 allowing a recovery to the next of kin for the death of a child, 
 the contributive negligence of those having the custody of 
 the child may be shown to defeat the recovery.^s Sometimes 
 the negligence of the driver of a vehicle in which another is 
 riding is attributable to that other; but it is only where the 
 relation of principal and agent or master and servant obtains 
 between the two. So, where a person has accepted an invi- 
 tation to ride, gratuitously, with another every way com- 
 petent and fit to manage a horse, he is not chargeable with 
 
 he was picked up on the fender 
 and carried a considerable dis- 
 tance, when he finally rolled off, 
 and was crushed under the wheels. 
 To say that the defendant owed 
 this child no duty; that it is re- 
 sponsible for no degree of negli- 
 gence on the part of the servants 
 after it had struck the child and 
 failed to kill him, is to ' utterly mis- 
 take the policy and the rules of 
 law. Whatever may have been the 
 duties or obligations of the par- 
 ties up to the moment that the 
 child was picked up on the fender, 
 there can be no question as to the 
 obligation of the defendant after 
 that feat had been accomplished, 
 and a failure to discharge that 
 obligation was negligence, to 
 which the child, under the cir- 
 cumstances, could not contribute. 
 It was the duty of the defendant, 
 as we have already pointed out, 
 to equip its cars in such a manner 
 as to reduce to a minimum the 
 
 chances of ' accident. The duty to 
 equip the cars with fenders car- 
 ries with it the duty to so operate 
 them as to accomplish the end 
 for which they were designed, and 
 a human being, having been 
 gathered into one of these fen- 
 ders, no matter by what degree 
 of negligence on his part, im- 
 poses upon the defendant the im- 
 mediate duty of so operating the 
 car as to afford him an oppor- 
 tunity to be taken from his dan- 
 gerous position." 
 
 It was held that the case should 
 have been submitted to the jury 
 to determine whether or not the 
 defendant, under these circum- 
 stances, had been reasonably care- 
 ful and prudent. And see Howell 
 V. Rochester ' Ry. Co., 24 App. 
 Div. (N. Y.) 502, 49 N. Y. Supp. 
 17; Greene v. Met. St. R. Co., 42 
 App. Div. (N. Y.) 160, 58 N. Y. 
 Supp. 1039. 
 
 85. See S 28. 
 
388 
 
 STREET SURFACE RAILROADS. 
 
 the negligence of the driver, and contributory negligence 
 upon the driver's part is no defense to an action against a 
 railroad corporation for injuries resulting in a collision.** It 
 makes no difference that the driver is the husband or the 
 father of the other ;*^ or a fellow servant, as in the case of a 
 fireman driving back from a fire upon a hose-cart.** Nor is 
 the negligence of the persons managing a public conveyance, 
 like a street car, to be imputed to a passenger therein;*' nor 
 the negligence of the driver of a horse car to the conductor 
 whose duties do not extend to the management of the horses, 
 nor to the stopping of the car under the circumstances, in- 
 volved in the collision.'" If the person riding is a joint con- 
 tributor with the driver to the hire of the team for the occa- 
 
 86. Robinson v. N. Y. C. & H. 
 R. R. Co., 66 N. Y.- li; Dyer 
 V. Erie Ry. Co., 71 id. 228; 
 Wosika V. St. ; Paul City Ry. Co. 
 (Minn.), 83 N. W. 386; Country- 
 man V. F., J. & G. R. Co., 166 N. 
 Y. 201 ; ' Johnson v. St. Paul City 
 R. Co., 67 Minn. 260, 36 L. R. A. 
 586, 69 N. W. 900; Louisville, etc., 
 R. Co. V. Stommel, 126 Ind. 35, 
 25 N. E. 863; Met. St. R. Co. v. 
 Powell, 88 Ga. 601, 16 S. E. 118; 
 Phila., ; etc., R. Co. v. Hogeland, 
 66 Md. 149. 
 
 87. Phillips V. N. Y. C. & H. 
 R. R. Co., 127 N. Y. 657; Citizens' 
 Ry. Co. V. Washington (Tex. Civ. 
 App.), 58 S. W. 1042; Hennessy 
 V. Brooklyn City R. Co., 73 Hun 
 (N. Y.), 569; affd., 147 N. Y. 721; 
 Lewin v. Lehigh Val. R. Co., 41 
 App. Div. • (N. Y.) 89. 
 
 88. Galligan v. Met. St. R. Co., 
 33 Misc. Rep. (N. Y.) 87. 
 
 89. O'Tulle v. Pittsb., etc., R. 
 Co., 158 Pa. St. 99, 22 L. R. A. 
 
 606, 24 Pittsb. L. J. (N. S.) 1^5, 
 33 W. N. C. 208, 27 Atl. 737; Little 
 Lake, etc., R. Co. v. Harrell, 58 
 Ark. 454, 25 S. W. 117; Holzab v. 
 New Orleans, etc., R. Co., 38 La. 
 Ann. 18s, 58 Am. Rep. 177; East 
 Tenn., etc., Co. v. Markenz, 88 
 Ga. 60, 14 L. R. A. 281, 13 S. E. 
 855. But see McGraff v. City & 
 S. R. Co., 93 Ga. 312, 20 S. E. 
 317, where it is held that a street 
 railroad company is not liable for 
 injuries to passengers in a wagon, 
 caused by collision with one of its 
 street cars, where the driver of the 
 wagon ■ was at the time driving at 
 a prohibited rate of speed, and the 
 accident would not have occurred 
 had he observed ordinary diligence. 
 
 90. Hobson V. N. Y.' Condensed 
 Milk Co., 25 App. Div. (N. Y.) 
 in; 49 N. Y. Supp. 209. 
 
 A complaint alleging that the 
 plaintiff has sustained " serious and 
 lasting bodily injuries and injuries 
 to her head, limbs and nervous sys- 
 
PLEADING. 389 
 
 sion, he is deemed negligent if he does not look for approach- 
 ing cars on crossing a street car track in a suburban and 
 thinly-settled district of a city." And indeed it should be re- 
 membered that no one approaching a place of danger is en- 
 tirely absolved from the duty of looking out to avoid injury. 
 The fact that he is in a public conveyance, or that he is riding 
 with a competent driver, are circumstances to be considered 
 in determining whether or not in a given case the party claim- 
 ing to recover for the negligence has himself been guilty of 
 negligence concurring in the result.'^ Where the mistress 
 of a school for small children owned and operated a convey- 
 ance in her business for conveying children to and fro be- 
 tween their homes and the school, procured a horse and 
 driver from a livery-stable keeper, for a stipulated price per 
 month, she cannot recover damages for injuries to person 
 and property sustained by her in a collision between her 
 vehicle, driven by such driver, and a street car, without show- 
 ing that the driver was free from negligence.'^ 
 
 Pleading and Practice. 
 § 33. Pleading. — It is impossible within the limit and scope 
 of this work to review all the cases against street surface 
 
 tem, as well as internal injuries," is Co., 30 Misc. Rep. (N. Y.) 104, 61 
 
 sufficient to admit of evidence that N. Y. Supp. 899; Brennen v. Met. 
 
 the plaintiff sustained inguinal her- St. Ry. Co., 60 App. Div. (N. Y.) 
 
 nia. Dixson v. Brooklyn Heights 264, 69 N. Y. Supp. 1025; Morris 
 
 R. R. Co., '68 App. Div. 302. v. Met. St. R. Co., 63 App. Div. 
 
 91. Shindelus v. St. Paul City (N. Y.) 78, 7i N. Y. Supp. 321; 
 Ry. Co. (Minn.), 83 N. W. 386. Koehler v. Rochester, etc., R. Co., 
 
 92. Ulrich v. Toledo Consol. St. 66 Hun (N. Y.), 566; Brickell v. 
 R. Co., 10 Ohio C. C. 63s, I O. C. N. Y. C. & H. R. R. Co., 120 N. 
 D. in; Hilts v. Foote (Mich.), Y. 290; Cain v. People's Pass. R. 
 84 N. W. 139, 7 Det. Leg. N. 489; Co., 181 Pa. St. S3, 37 Atl. no. 
 Cobb v. Met. St. R. Co., 56 App. 93- Reed v. Met. St. R. Co., 58 
 Div. (N. Y.) 187, 67 St. Rep. (N. App. Div. (N. Y.) 87, 68 N. Y. 
 Y.) 644; Anderson v. Met. St. Ry. Supp. 539. 
 
390 STREET SURFACE RAILROADS. 
 
 railroad companies wherein questions have arisen upon the 
 pleadings, where the gravamen of the action was the defend- 
 ant's negligence. It is sufficient to say that the complaint 
 in such an action is sufficient if it alleges, generally and sub- 
 stantially, that the injury was occasioned by the negligence 
 of the defendant. Degrees of negligence are matters of 
 proof and not of averment. The circumstances constituting 
 the negligence are also matters of proof and not of averment. 
 It is not necessary to allege in the complaint that the injury 
 did not occur through the negligence of the plaintiff. The 
 allegation that it resulted from the negligence of the defend- 
 ant is equivalent to an allegation that the defendant's negli- 
 gence was the sole cause of the injury.'* If the action is 
 brought by the representative of the next of kin, under a 
 statute authorizing such an action, where an injury results 
 in death to their decedent, the complaint need not in any 
 manner directly allude to the statute, but it must state all 
 the facts which are requisite to bring the case within the 
 statute.ss If the action be brought upon a foreign statute, 
 the rules appertaining to the pleading of a foreign statute 
 
 94- Oldfield v. N. Y. & H. R. the statute expressly provides that 
 
 Co., 14 N. Y. 310; Nowlton in actions for negligence it shall 
 
 V. Western R. Co., 15 id. 444; not be necessary for the plaintiff 
 
 Urquhart v. City of Ogdensburg, to allege or prove the want of con- 
 
 23 Hun (N. Y.), 75 ; Melhado tributory negligence. And in In- 
 
 V. Poughkeepsie Transp. Co., 27 diana such a statute has recently 
 
 id. 99. And see St. Louis El. been held to be not in conflict 
 
 Ry. V. Snow, 88 111. App. 660; with the constitutional provision 
 
 West Chicago St. R. Co. v. prohibiting the passage of local or 
 
 Dedloff, 92 id. S47; Fort Scott R. special laws regulating the prac- 
 
 T. Ry. Co. V. Page (Kan. App.), lice in courts of justice. In- 
 
 59 Pac. 690; Highland Ave. & B. dianapolis St. Ry. Co. v. Robin- 
 
 R. Co. v. Robbins (Ala.), 27 So. son, 61 N. E. 197, 23 Am. & Eng. 
 
 422; Paper v. Pueblo City Ry. R. Cas. 181. 
 
 Co., 4 Am. Electl. Cas. 542, 4 95. Brown v. Harmon, 21 Barb. 
 
 Colo. App. 424. In some States (N. Y.) 508; Safford v. Drew, 3 
 
PLEADING. 391 
 
 in the forum must be observed.'* An allegation that the 
 defendant's street car was running at a high rate of speed is 
 not a sufificient allegation of the defendant's negligence.®^ 
 Quite generally however the facts constituting the negligence 
 are alleged in the complaint;'® and when so alleged, unless 
 there is also a general allegation that the injury resulted from 
 the negligence of the defendant, the plaintifif may be pre- 
 cluded from proving any other facts showing the defendant's 
 negHgence than those alleged in the complaint.'' And if 
 the facts alleged show upon their face that the plaintiff was 
 guilty of contributory negligence, the pleading is demurra- 
 ble.' If the complaint allege substantially that the injury 
 resulted from the defective condition of a certain part of the 
 street railroad track, and that such road was operated by the 
 defendant company, and the operation is admitted in the 
 answer, the complaint cannot be dismissed because the evi- 
 dence failed to show that defendant was prima facie liable 
 
 Duer (N. Y.), 627; Lucas v. N. cient to take the case to the jury, 
 
 Y. C. R. Co., 21 Barb. (N. Y.) 245; although the evidence is insuffi- 
 
 Kenney v. N. Y. C. & H. R. R. cient to establish willful wrong. 
 
 Co., 49 Hun (N. Y.), 53s, 2 N. Y. Griffin v. Toledo & M. B. Ry. Co., 
 
 Supp. 512. 21 Ohio C. C. 547, 11 O. C. D. 
 
 96. Throop V. Hatch, 3 Abb. Pr. 749- 
 
 (N. Y.) 23; Stallknecht v. Penn. 99- So where the declaration al- 
 
 R. Co., S3 How. Pr. (N. Y.) 305. leged that plaintiff was thrown 
 
 97. Elwood El. St. Ry. Co. v. from her wagon by collision, and 
 Ross (Ind. App.), 58 N. E. 535. there was evidence that she jumped 
 
 98. For illustration, see Citizens' from the wagon, the defendant is 
 St. Ry. Co. V. Damm, 25 Ind. App. entitled to an instruction that it 
 511, 58 N. E. 564; Elwood El. St. the jury believe from the evidence 
 Ry. Co. V. Ross, supra. Where that she did jump from the wagon, 
 the complaint against a street rail- the verdict should be for defend- 
 road company for personal in- ant. West Chic. St. R. Co. v. 
 juries, the result of a collision, Cantz, 89 111. App. 309. 
 
 set forth the facts complained of i. Richmond Tract. Co. v. Hil- 
 and denominates them "willful debrand (Va.), 34 S. E. 888; High- 
 conduct," if the facts charged do land Ave. & B. R. Co. v. Rob- 
 constitute negligence, it is suffi- bins (Ala.), 27 So. 422. 
 
392 STREET SURFACE R,AILROADS. 
 
 for the defective condition of the track.^ Under a general 
 denial, the defendant may introduce any proof showing that 
 its negligence was not the sole cause of the injury, and that 
 it was due to plaintiff's negligence. Indeed, if besides a 
 general denial it is separately alleged that whatever damages 
 were sustained by the plaintifif were due to his own negligence 
 and not the result of any negligence of the defendant, or, that 
 the injuries sustained were occasioned by the negligence of 
 a third person unknown to the defendant, these additional 
 defenses, under the New York Code, are demurrable.^ Where 
 a new trial is granted upon proof tending to show that testi- 
 mony given on the former trial by the plaintifif as to her health 
 was false, the defendant should not be required to enter into 
 a stipulation admitting its own negligence and the plaintiff's 
 freedom from contributory negligence.^^ Since so many law- 
 yers have runners whose duty it is to seek out any one suf- 
 fering injury from a railroad accident and to offer to prose- 
 cute the claim upon a contingent fee, a case in point adjudicat- 
 ing an attorney's rights under an agreement so made may be 
 of interest.3^* Sometimes application is made to the court for 
 
 2. Schnell v. Met. St. R. Co. her husband who was with her at 
 (N. Y. Sup.), 64 N. Y. Supp. 67, the time she 'was injured, he in- 
 50 App. Div. (N. Y.) 616. duced the husband to sign an 
 
 3. Levy V. Met. St. Ry. Co., 34 agreement by which the husband 
 Misc. Rep. (N. Y.) 220, 68 N. Y. authorized (Gottlief) the attorney 
 Supp. 539; Durst V. Brooklyn to prosecute "my said claim for 
 Heights R. Co., 33 Misc. Rep. damages " for a 'contingent fee of 
 (N. Y.) 124, 67 N. Y. Supp. 227. one-half the recovery; the attor- 
 
 sVs- Crane v. Brooklyn Heights ney brought the action in behalf 
 
 R. R. Co., 68 App. Div. 202. of the woman; she repudiated his 
 
 3^. Whitesellv. N. J. H. R. R. authority and settled; the attorney 
 
 & F. Co., 68 App. Div. 82. The rep- claimed that ' the plaintiflf's hus- 
 
 resentative called upon the plain- band had authorized commence- 
 
 tiff, a woman, and 'not succeeding ment of the suit. Held, that upon 
 
 m obtaining her consent to bring the facts proved an order direct- 
 
 the action, but being referred to ing the defendant in the action to 
 
PLEADING. 
 
 393 
 
 permission to maintain an action in forma pauperis. In New 
 York it has been held that it is not sufficient to show that 
 the applicant does not own $ioo of property. The moving 
 papers must also set forth facts showing that he has a good 
 cause of action. Mere advice of counsel, although a certifi- 
 cate of counsel to that effect is required, is insufficient to show 
 a good cause of action.^^ Nor is it sufficient for the petitioner 
 to merely state that she has not now means to prosecute the 
 action. The application is addressed to the sound discretion 
 of the court, and a petitioner should make it appear by allega- 
 tion of sufficient facts, that unless the permission is granted, 
 she will be unable to prosecute a good cause of action.^^* 
 
 pay the attorney half of the amount 
 of the alleged settlement of the 
 action, besides the costs and dis- 
 bursements, and providing that 'if 
 such payment were not made the 
 attorney should have leave to 
 prosecute the action to judgment 
 for his own benefit was unjustified 
 and must be set aside; that the 
 attorney at best would be entitled 
 only to the sum of $15 for serving 
 the summons. Id. 
 
 Where a statute permits a trial 
 court to conform the pleadings to 
 the facts proved, where the amend- 
 ment does not substantially change 
 the claim in an action against a 
 street railroad company for injury, 
 where the complaint alleges that 
 the stage of which plaintiff was an 
 occupant was upon a public high- 
 way over which defendant's tracks 
 were laid, it is competent to prove 
 upon the trial that defendant 
 owned the fee of the premises 
 where the accident occurred, and 
 for the purpose of sustaining the 
 
 judgment the complaint will, on 
 appeal, be deemed to have been 
 amended in harmony with the 
 proofs. It was also held that the 
 contention of the defendant that 
 its invitation to the public extended 
 only to the use of the roadway 
 at the side of its tracks, and 
 the plaintifif in the stage-coach, 
 being on the tracks upon premises 
 of the defendant and no part of the 
 public highway, was a trespasser, 
 and, therefore, could riot recover, 
 was not well founded. The tracks 
 were not fenced off or otherwise 
 separated from the roadway, and 
 the defendant was liable if its neg- 
 ligence was the sole cause of the 
 accident, although its act was not 
 wanton, wilful or intentional. Lie- 
 kens V. Staten Is. M. R. Co., 64 
 App. Div. 327; 72 N. Y. Supp. 162. 
 
 354. Weinstein v. Frank, 56 App. 
 Div. 27s, 67 N. Y. Supp. 746. 
 
 3^. Kaufmann v. Manhattan Ry. 
 Co., 68 App. Div. 94. 
 
394 STREET SURFACE RAILROADS. 
 
 § 34. Burden of proof.— Except the plaintiff be a passenger 
 upon the defendant's cars, in all actions against a street sur- 
 face railroad the gravamen of which is the defendant's negli- 
 gence, the burden of proof rests upon the plaintiff, and he 
 cannot recover without establishing by" a fair preponderance 
 of the evidence that it was solely through the defendant's 
 fault that the injury complained of was occasioned.* And 
 this is the rule although the plaintiff was a child of tender 
 years who could not be guilty of contributive negligence.^ 
 Sometimes the occurrence of the accident itself justifies an 
 inference of the defendant's negligence, as when a pedestrian 
 is injured by stepping upon a loosened rail of a street car 
 track and sues the company charged with its construction 
 and maintenance therefor; then if it appear that the track 
 was properly constructed and had been carefully and recently 
 inspected, and that the rail might have been loosened by 
 some heavy vehicle passing over it immediately before the 
 plaintiff stepped upon it, the plaintiff has not sustained the 
 burden of proof.^ If the accident was occasioned by the 
 
 4. Siacik V. N. Central Ry. Co., shifted, but was still upon the 
 
 92 Md. 213, 48 Atl. 149; Hoffman plaintiff." Dillon v. Forty-second 
 
 V. Syracuse R. T. Ry. Co., 50 App. St. R. Co., 28 App. Div. (N. Y.) 
 
 Div. (N. Y.) 83, 63 N. Y. Supp- 404, 51 N. Y. Supp. 145; North 
 
 442; Kay V. Met. St. R. Co., 163 Chicago City Ry. Co. v. Lewis 
 
 N. Y. 447. In the case last cited (III.), 27 N. E. 451; O'Neill v. D. 
 
 the court said: "When a party D., etc., Ry. Co., 129 N. Y. 125, 
 
 alleges the existence of a fact as 29 N. E. 84; Worster v. Forty- 
 
 the basis of a cause of action or second St. R. Co., 50 N. Y. 205; 
 
 defense, the burden is always upon Schild v. C. P., etc., R. Co., 133 
 
 the party who alleges the fact to id. 449. 
 
 establish it by proof. The onus 5. Cline v. Crescent City R. Co., 
 
 probandi is upon him throughout. 23 La. Ann. 729; Cords v. Third 
 
 In the case at bar, the plaintiff Ave. R. Co., 4 N. Y. Supp. 439. 
 
 made out her cause of action prima 6. Casper v. D. D., etc., R. Co., 
 
 facie by the aid of a legal pre- 56 App. Div. (N. Y.) 372, 67 N. 
 
 sumption, but when the proof was Y. Supp. 805. 
 all in, the burden of proof had not 
 
BURDEN OF PROOF. 395 
 
 plaintiff's fall into an excavation in the street near the rail- 
 road track, it is not sufficient to prove that the railroad com- 
 pany and its servants were engaged in making excavations 
 in that locality. It is necessary to show that the very exca- 
 vation into which the plaintiff stepped and which occasioned 
 the injury was made by the defendants, and not by some per- 
 son whom the defendants could not control.'' More fre- 
 quently however the question arises whether or not the plain- 
 tiff has sustained his burden of proving the absence of negli- 
 gence on his own part; and in a recent case in New York,, 
 where the plaintiff complained of injuries to his decedent 
 because of a collision between defendant's car and the covered 
 vehicle in which decedent was riding with his wife, upon the 
 same seat, and it appeared that he was trotting slowly along 
 the track, himself not looking to the rear, but that his wife 
 kept a lookout, and a car approached swiftly from the rear, 
 and in the collision he sustained injuries from which he died, 
 it was held that the jury might properly conclude that the 
 vigilance of the wife was known to the decedent, and that 
 under the circumstances he was not negligent.* Where the 
 defendant contended that the collision between its car and 
 plaintiff's carriage was caused by plaintiff's horse shying and 
 bringing the vehicle toward the track, the testimony of two 
 witnesses that the carriage was on the track and the car 
 struck it from behind, justifies the submission to the jury of 
 plaintiff's contention that his decedent was driving on the 
 track and the car was run into the rear of his carriage.s 
 
 7. Moss V. Crimmins, 57 App. Y. 254. And see Walker v. St. 
 Div. (N. Y.) 587, 68 N. Y. Supp. Paul City Ry. Co., 81 Minn. 404, 
 495 
 
 51 L. R. A. 632, 84 N. W. 222. 
 
 8. Seifter v, Brooklyn Heights 9- McCann v. N. Y. & Q. C. 
 
 R. Co., 55 App. Div. (N. Y.) 10, Ry. Co., 56 App. Div. (N. Y.) 419, 
 66 N. Y. Supp. 1 107, revd. 169 N. 67 N. Y. Supp. 748. 
 
396 STREET SURFACE RAILROADS. 
 
 § 35. Some recent rulings on evidence in actions for personal 
 injuries resulting from collision with street cars. — Where the 
 negligence of the railroad company, as claimed, con- 
 sists in an unreasonable rate of speed, the usual speed 
 at which the car is wont to be propelled over the por- 
 tion of the track in question may always be shown.'" 
 And a motorman may be asked as to the distance within 
 which a car running at a speed of ten or twelve miles 
 an hour could be stopped." The court can take judicial 
 notice of the fact that a trolley car operated at an ordi- 
 narily safe rate of speed can be stopped in a shorter space 
 than 100 feet." Upon a contention by plaintifif that the 
 carriage with which the street car collided was struck by the 
 car from behind, the defendant claimed that it was not struck, 
 but that the horse attached thereto shifed or was turned onto 
 the track before the car could be stopped. The testimony of 
 two witnesses that the carriage was on the track and the car 
 struck it from behind justifies submission of the question to 
 the jury. '3 Upon the question whether plaintifif was thrown 
 from her wagon by a collision, or whether she jumped there- 
 from, where the declaration in an action alleged that she was 
 thrown therefrom, the defendant is entitled to an instruction 
 that if the jury believe from the evidence she jumped from 
 the wagon the verdict should be for defendant."* Testimony 
 that the car which killed a child was running about ten miles 
 
 10. Shea V. St. Paul City Ry. Co., 10 Misc. Rep. (N. Y.) 541, 31 
 Co., 4 Am. Electl. Cas. 481, 50 N. Y. Supp. 441, 64 St. Rep. (N. 
 Minn. 395. Y.) 126. 
 
 11. Pender v. Brooklyn City R. 13. McCann v. N. Y. & Q. C. 
 Co., 84 Hun (N. Y.), 460, 32 N. Ry. Co., 56 App. Div. (N. Y.) 419, 
 Y. Supp. 366, 65 St. Rep. (N. Y.) 67 N. Y Supp. 748. 
 
 573- 14. West Chicago St. R. Co. v. 
 
 12. Young V. Atlantic Ave. R. Kautz, 89 111. App. 309. 
 
QUESTIONS OF EVIDENCE. 397 
 
 an hour, when the child, about four years old, wearing a 
 bonnet, was attempting to cross the track diagonally from 
 the direction in which the car was coming, the track being 
 straight, the child in plain sight of the motorman, and it 
 appearing that he saw it in time to stop the car but did not 
 attempt to stop until the child was struck, is sufficient to 
 sustain a judgment in favor of the plaintiff. '^ Testimony of 
 a plaintiff driving across the track and colliding with a car, 
 that when he crossed the street the car which struck his 
 wagon was at a certain point, will be disregarded where the 
 team, going a little faster than a walk, as testified to by him, 
 would have been far beyond the track within the time neces- 
 sary for the car coming at the highest speed testified to to 
 have reached the place of the accident.'® Where plaintiff 
 was injured in attempting to cross a street car track through 
 the snow, and it appeared that she hved on the east side of 
 the street, crossed to the west side to make some purchases 
 and recrossed at the next corner to go to a drug store, but 
 instead of returning home on the same side, attempted to 
 cross back to the other side because the walking was better, 
 at a place where she testified she knew the crossing was 
 dangerous, the exclusion of testimony that she might have 
 returned without crossing the street is erroneous. It bears 
 on her contributory negligence in unnecessarily exposing 
 herself to danger.''' Where plaintiff testified that she did not 
 hear the bell before she was struck, and her sister sitting in 
 the house near by testified that she did not hear it, the only 
 passenger on the car not being able to say whether it rung 
 
 15. Elwood El. St. Ry. Co. v. i7- Newport News & O. P. Ry. 
 Ross (Ind. App.), S8 N. E. 535- & El. Co. v. Bradford, 3 Va. Sup. 
 
 16. Bornscheuer v. Consol. 15. 2i7 S. E. 807. 
 Tract. Co., 198 Pa. St. 332, 47 Atl. 
 
 872. 
 
398 STREET SURFACE RAILROADS. 
 
 or not, but the motorman testifying that he rang the bell 
 more than once, the conductor that his attention was attracted 
 at the point of the accident or just before by the ringing of 
 the bell, it was held that the evidence established the fact 
 that the bell was rung after the motorman saw the plaintifif 
 and before she was struck.'* The duty does not rest upon a 
 street railroad company ordinarily to keep the space between 
 its tracks free from ice and snow; therefore, testimony in an 
 action against it for negligence, to the efifect that the ice 
 t)etween the tracks had been there for a considerable length 
 of time, is incompetent.'' Testimony that plaintifif was driv- 
 ing his wagon ahead and in the way of defendant's street car, 
 which was moving slowly with the brakes applied and the 
 gong sounding, and that as he turned to the right, leaving 
 room for the car to pass, the motorman released the brakes 
 and increased the speed, when plaintifif suddenly pulled the 
 wagon close to the track and the motorman immediately 
 applied the brakes, but the car collided with the wagon, does 
 not sustain a finding that defendant was guilty of wanton 
 negligence.^" Evidence for plaintifif that but twelve feet 
 would be required in which to stop a properly equipped car 
 going eight miles an hour, is admissible where the negligent 
 management of the street car coUiding with him is in issue 
 and it was claimed by defendant that the car was going eight 
 miles an hour, although plaintifif had already shown that it 
 took eighty feet in which to stop it.^' In his verified com- 
 plaint plaintifif alleged that the accident occurred on April 
 1 8th; on the trial he testified that it occurred on November 
 
 18. Ryan v. La Crosse City Ry. v. Franscomb, 124 Ala. 621, 27 So. 
 Co., 108 Wis. 122, 83 N. W. 770. S08. 
 
 19. Silberstein v. Houston, etc., 21. McDonald v. Brooklyn 
 R. Co., 117 N. Y. 293. Heights R. Co., 51 App. Div. (N. 
 
 20. Birmingham Ry. & El. Co. Y.) 186, 64 N. Y. Supp. 480. 
 
QUESTIONS OF EVIDENCE. 399 
 
 19th of the same year; on a retrial he testified that December 
 1 8th was the correct time; but defendant claimed that plain- 
 tiff had stated to one of its employees that the accident was 
 on December 23d, and in connection with testimony thereof 
 showed that it had a report of an accident happening in the 
 locality of the one in question on that day; and a witness 
 said the injured person looked like plaintiff. Held, that it 
 was reversible error to exclude evidence of the circumstances 
 of the accident last referred to.^^ Evidence of the omission 
 to sound the gong is admissible as a part of the history of 
 the transaction and as bearing upon the degree of care exer- 
 cised by the defendant's employees and upon the question of 
 the plaintiff's contributory negligence in a collision between 
 the plaintiff and one of defendant's cars at a street crossing, 
 where the driver of the coach in which the plaintiff was riding 
 testified that he had observed the approach of the car when 
 it was a block away and again when it was about half a block 
 distant. He was then asked, with several other witnesses, 
 whether the bell on the car was sounded when he saw it ; and 
 it was claimed that the defendant was under no obligation to 
 ring the gong at those times.^^ Where the car was behind the 
 wagon with which it collided and going in the same direction, 
 evidence as to the capacity of the horse attached to the wagon 
 for speed is inadmissible-; and it does not tend to show the 
 rate of speed at which the car or horse was going at the time 
 of the accident.^* The acts of the conductor of a car after 
 it collides with the plaintiff's decedent and causes his death 
 cannot affect the question of careless running at the time of 
 
 22. Cunningham v. Met. St. R. Co., 162 N. Y. 193, 56 id. 497. 
 Co., 2g Misc. Rep. (N. Y.) 123, 6a revg. 38 App. Div. (N. Y.) 623. 
 N. Y. Supp. 277. 24. Spargo v. West End St. Ry. 
 
 23. Kleiner v. Third Ave. R. Co., 175 Mass. 174, 55 N. E. 812. 
 
400 STREET SURFACE RAILROADS. 
 
 the accident. Hence, testimony as to where the conductor 
 was after the car stopped and while the decedent was under it 
 is incompetent.^5 go evidence that the driver of a street car 
 claimed to have run into plaintifif's wagon was arrested there- 
 for is inadmissible.^® Where injury is occasioned to plaintifif 
 standing on the sidewalk, by reason of a collision between 
 defendant's cable car and a wagon, testimony that the driver 
 of the wagon was also concurrently negligent is immaterial.^' 
 Where plaintifif sues for injuries from being thrown from the 
 platform of a crowded street car, it is admissible to show that 
 he was intoxicated at the time.-^® The declaration of a motor- 
 man at the place of and a few moments after the collision in 
 which the plaintifif was injured to the efifect that he had seen 
 plaintifif for 150 yards and that he made no efifort to apply 
 the brakes until the collision was about to occur, although 
 plaintiff had given no heed to repeated signals of the car's 
 approach, was held admissible as part of the res gestae.''^ 
 In New York it is held that declarations of a street car con- 
 ductor after an accident and forming no part of the res gestae 
 are not binding on the company and are inadmissible against 
 it.3° In an action for injuries to a bicycle rider in a collision 
 with a street car, it is error to allow defendant's witnesses to 
 state how long it would take them to dismount from a bicycle 
 on meeting an approaching team, as the inquiry should have 
 
 25. Wilcox V. Wilmington City Supp. 16; affd., 60 N. E. 11 13, 168 
 Ry. Co. (Del. Super.), 2 Penn. 157, N. Y. 592. 
 
 44 Atl. 686. 28. Donobo v. Met. St. Ry. Co., 
 
 26. Seipp V. D. D., etc., Co., 45 30 Misc. Rep. (N. Y.) 433, 62 N. 
 App. Div. (N. Y.) 489, 61 N. Y. Y. Supp. 523. 
 
 Supp. 409; Maisels v. D. D., etc., 29. Floyd v. Paducah Ry. & L. 
 
 Co., 16 App. Div. (N. Y.) 391, 45 Co. (Ky. Ct. App.), 64 S. W. 653, 
 
 N. Y. Supp. 4. 23 Am. & Eng. R. Cas. 167. 
 
 27. Knoll V. Third Ave. R. Co., 30. Kay v. Met. St. Ry. Co., 163 
 46 App. Div. (N. Y.) 527, 62 N. Y. N. Y. 447, 57 N E 751 
 
QUESTIONS OF EVIDENCE. 4OI 
 
 been confined to what it would be reasonably practicable for 
 the ordinary rider to do under the circumstances. 3' Where 
 the complaint simply charges negligence, evidence of a will- 
 ful intent to injure or reckless disregard of plaintiff's safety 
 has been held inadmissible.^^ A complaint alleging that 
 plaintifif " sustained severe injuries upon her left foot, left 
 arm, left side of her head, and her entire left side, compelling 
 and necessitating said plaintifif to remain confined to her bed 
 under the care " * * * " of a physician from the day 
 of such injuries, and is still under the care, charge, and con- 
 trol of a physician " * * * "to alleviate her pains and 
 sufiferings," authorizes testimony that plaintifif sustained an 
 injury to her left ear.^^ Testimony that defendant's car was 
 running fast and the motorman, when within 125 feet of a 
 child which was approaching the track, heard a woman 
 scream in the second story and looked in that direction and 
 then looked back into the car and did not discover the child 
 he struck until close upon it, is sufificient to support a finding 
 that he was negligent.^* Where the question is whether 
 defendant owned and operated the car causing the injury, 
 testimony of a witness for the plaintifif to the efifect that he 
 knew of his " own knowledge that this was a car of the 
 defendants," is admissible.^s Testimony of previous accident 
 is competent only where the conditions are the same.^^ In 
 an action by a mother to recover for the loss of her infant 
 
 31. Palmer v. Cedar Rapids & 63 App. Div. (N. Y.) i, 71 N. Y. 
 M. C. Ry. Co. (Iowa), 95 N. W. Supp. 326. 
 
 756_ 3S. Karrigan v. Ninth Ave. R. 
 
 32. McClelland v. Chippewa Val. Co., 44 App. Div. (N. Y.) 116, 60. 
 El. Ry. (Wis.), 85 N. W. 1018. N. Y. Supp. 682. 
 
 33. Radjaviller v. Third Ave. R. 36. Morrow v. Westchester El. 
 Co., s8 App. Div. (N. Y.) 11, 68 R. Co., S4 App. Div. (N. Y.) 592^ 
 N. Y. Supp. 617. 67 N. Y. Supp. 21. 
 
 34. Fullerton v. Met. St. R. Co., 
 
 26 
 
402 STREET SURFACE RAILROADS. 
 
 daughter's services and earnings, caused by the alleged negli- 
 gence of the defendant, and also medical and surgical ex- 
 penses incurred by her in the treatment of her daughter's 
 injuries, it is fatal error to admit in evidence the complaint 
 and judgment in an action in which the daughter had already 
 recovered a large judgment against one of the defendants 
 for her personal injuries, in the absence of proof that in that 
 action testimony of the medical and surgical expenses had 
 been given.^^ A guessing of medical experts, based upon 
 inaccurate hypothetical questions, to the efifect that a broken 
 bone in the ankle which did not perforate the skin caused 
 septic pneumonia four and one-half months after an accident, 
 furnishes insufficient support for a verdict of a jury awarding 
 damages against the negligent party for the resulting death.^* 
 It is not incumbent upon a street railway company to notify 
 one using a street that steam was being generated in an 
 engine of a steam roller used in the repairing of defendant's 
 tracks and was likely to escape at any time with such a noise 
 as would frighten horses; nor was it incumbent upon the 
 company to prevent the escape of steam by banking the fire. 
 Therefore, there is insufficient evidence to establish action- 
 able negligence on the part of the defendant where it only 
 appeared that the plaintiff (engaged in carting merchandise 
 to a building) before stopping at the building saw the steam 
 roller, then perfectly motionless and noiseless, not emitting 
 any steam; afterward, while engaged in unloading the mer- 
 chandise, the steam commenced to escape through the auto- 
 matic safety-valve of the roller, making a sharp, popping 
 noise, which frightened the horse and caused injuries to the 
 
 37- Sondheim v. Brooklyn 38. Seifter v. Brooklyn Heights 
 
 Heights R. Co. & Nassau Brew- R. Co., 169 N. Y. 254. 
 ing Co., 36 Misc. Rep. (N. Y.) 
 339- 
 
QUESTIONS OF EVIDENCE. 4O3 
 
 plaintiff in an attempt to catch him.^^ In an action by a 
 fireman who received injuries from coUision with a car at a 
 street intersection, he being driven back from a fire upon the 
 hose-cart or tender, a witness- in his behalf who saw the acci- 
 dent cannot give his opinion, based upon the relative posi- 
 tions and speed of the car and of the tender, as to which of 
 them could first have crossed the point of collision/" A 
 motorman called as an expert upon the part of the defendant, 
 who has testified generally what he would do if an " emer- 
 gency " presented itself, may properly be asked upon cross- 
 examination what he would do in a particular case if he were 
 in charge of the motive power of a car, and saw children 
 ahead on the track.*' An expert motorman is competent 
 to testify as to the distance within which a car could be 
 stopped in a locality with which he has been familiar.t^ One 
 who has been driver of- a horse car for years may testify 
 within what time or space a cardriver could stop a one-horse 
 car when the horse was on a moderate trot on level ground. 
 So, one who has been driver of a truck for years may state 
 within what time and what space a loaded truck could be 
 stopped.^ Evidence of the surrounding circumstances to 
 show that the failure of the cardriver to sound the bell was 
 negligence is admissible.** Where it appeared that the per- 
 son in collision died of cerebral hemorrhage, an expert may 
 
 39. Rector v. Syracuse R. T. R. 63 St. Rep. (N. Y.) 269, 30 N. Y. 
 ■Co., 66 App. Div. (N. Y.) 395- Supp. 1081. 
 
 40. Galligan v. Met. St. Ry. Co., 43- O'Neill v. D. D., etc., R. Co., 
 33 Misc. Rep. (N. Y.) 87. 59 Super. Ct. (N. Y.) 123, 36 St. 
 
 41. Howell' V. Rochester Ry. Rep. (N. Y.) 934. I5 N. Y. Supp. 
 Co., 24 App. Div. (N. Y.) 502, 49 84. 
 
 N. Y. Supp. 17. 44- Coyle v. Third Ave. R. Co., 
 
 42. Tholan v. Brooklyn City R. 17 Misc. Rep. (N. Y.) 282, 40 N. 
 Co., 10 Misc. Rep. (N. Y.) 283, Y. Supp. 362. 
 
404 STREET SURFACE RAILROADS. 
 
 be asked to state whether or not in his opinion the hem- 
 orrhage " may or may not be caused by a fall from a wagon 
 into the street in consequence of a collision with a trolley 
 car," where it was claimed that the accident was thus occa- 
 sioned.^s Section 834 of the New York Civil Code does not 
 preclude the testimony of a surgeon connected with the hos- 
 pital ambulance to the effect that the plaintifif in an action 
 against a street railroad company for injuries had stated to 
 him that he had slipped from his wagon while trying to get 
 on to it, and that the wagon ran over him and his injuries 
 were so occasioned. It is a question, however, under that 
 section, whether the surgeon who treated the plaintifif at the 
 hospital can testify as to the reply made by the plaintifif to 
 him in response to his inquiry for a history of the accident 
 and as to how it happened, where it appears that it was the 
 uniform custom at the hospital to get a full history of each 
 accident, including the question of how the accident oc- 
 cured.'*'* A physician who first saw the plaintifif four months 
 after the injury complained of, may properly be allowed to 
 state what he found upon his examination of the plaintifif, 
 since it cannot be determined until he has answered the ques- 
 tion whether the conditions which he found were or were not 
 caused by the accident, no objection appearing to have been 
 taken under section 834 of the Civil Code.«i> It is not com- 
 petent to ask whether defendant's motorman was ringing his 
 gong on approaching a crossing, in an action for personal 
 injuries, as the question calls for a mere evidentiary fact and 
 not a controlling question of fact.^s^ It is competent to show 
 
 45- Bruss v. Met. St. R. Co., 66 Heights R. R Co., 68 App. Div. 
 
 App. Div. (N. Y.) 554. 200. 
 
 4Sa. Griebel v. The Brooklyn 45c. Chicago City Ry. Co. v.. 
 
 Heights Ry. Co., 68 App. Div. 204. Olis (111.), 61 N. E. 459. 
 
 4Sb. Napier v. The Brooklyn 
 
QUESTIONS FOR JURY. 405 
 
 that the injury resulting from defendant's negligence was ag-l 
 gravated by improper treatment of medical attendants 
 through no fault of the injured party or lack of care on her 
 part in selecting attendants/s"^ Evidence as to the use of the 
 street by the public as a pass-way is not admissible, where the 
 track, though an extension of a street railroad, was not in the 
 highway, and such use gave the public no right thereto/s^ 
 Where the defense of the company was that the claim of 
 plaintifif was fraudulent and evidence had been received that 
 plaintiff's daughter had an accident claim against the city, 
 and her husband two such claims pending, it was legitimate 
 argument for the defendant to state to the jury that it was 
 apparent from the testimony that plaintiff and her witnesses 
 were in the habit of bringing damage suits, and it was to be 
 considered as bearing on their good faith, and that they could 
 not make their living in that sort of way.''^' 
 
 § 36. Questions for jury in such actions. — As has been seen, 
 the question whether the employees of the street railroad 
 company in the management of the car on the one hand, and 
 the traveler on the other, use the ordinary care of reasonably 
 prudent persons to avoid the coUision, is for the jury. It 
 cannot be correctly said in any case where the right of trial 
 by jury exists and the evidence presents an actual issue of 
 fact, that the court may properly direct a verdict; so long 
 as a question of fact exists, it is for the jury and not for the 
 court."** Within the scope of this work it is impossible to 
 
 4Sd. Chicago City Ry. Co. v. Co. (Mich.), 87 N. W. 886; 8 Det. 
 Cooney, 95 111. App. 471. ,L. N. 812. 
 
 4Se. Floyd v. Paducah Ry. & L. 46. McDonald v. Met. St. Ry. 
 
 Co. (Ky.), 64 S. W. 653. Co., 167 N. Y. 66, 69; Smith v. 
 
 4Sf. Wheeler v. Detroit El. Ry. Met. St. Ry. Co., 66 App. Div. 
 
 (N. Y.) 60a 
 
4o6 
 
 STREET SURFACE RAILROADS. 
 
 State in detail the facts and circumstances which in various 
 cases have been submitted to the jury in actions to recover for 
 injuries against street railroad companies on the claim that 
 the defendant was negligent. Recent cases which have been 
 submitted to the jury are collated in this note.'*' 
 
 § 37. InBtmctions to jxiry in such actions. — An instruction 
 " that if the defendant's employees operating the car fail to 
 
 47. Ludecke v. Met. St. Ry. Co., 
 32 Misc. Rep. (N. Y.) 635, 66 N. Y. 
 Supp. 483; Conyngham v. Erie EI. 
 M. Co., IS Pa. Super. Ct. 573; Kis- 
 sock V. Consol. Tract. Co., id. 103; 
 Mertz V. Detroit El. Ry. Co. 
 (Mich.), 83 N. W. 1036, 7 Det. 
 Leg. N. 393; West Chic. St. R. 
 V. Shiplett, 8s 111. App. 683; 
 Creavin v. Newton St. Ry. Co. 
 (Mass.), 57 N. E. 994; Raulston v. 
 Phila. Tract. Co., 30 Pa. -Super. 
 Ct. 412; Ryan v. Detroit Citizens' 
 Ry. Co. (Mich.), 82 N. W. 278; 
 Fielders v. North Jersey St. Ry., 
 so Atl. S33; Lewis v. Cincinnati 
 St. Ry. Co., ID Ohio S. & C. P. 
 Dec. S3; North Chicago St. R. Co. 
 V. Zeiger, 182 111. 9, 54 N. E. 1006; 
 Thompson v. United Tract. Co., 
 193 Pa. St. SSS, 44- Atl. 558; Kelley 
 V. Pittsb. & B. Tract. Co., 10 Pa. 
 Super. Ct. 644; Hicks v. Nassau 
 El. Ry. Co., 47 App. Div. (N. Y.) 
 479, 62 N. Y. Supp. S97. As to 
 seeing electric wire hanging down 
 and avoiding danger, see Lloyd 
 V. City & Suburban Ry. Co. (Ga.), 
 3S S. E. 170; Central Ry. Co. v, 
 Knowles, 191 111. 241, 60 N. E. 829; 
 Oddie V. Mendenhall (Minn.), 86 
 N. W. 881; Markey v. Consol. 
 Tract. Co., 48 Atl. 1117; Morris v. 
 Met. St. Ry. Co., 63 App. Div. 
 (N. Y.) 78, 31 N. Y. Supp. 321; 
 
 Macon v. Paducah St. Ry. Co. 
 (Ky.), 62 S. W. 496; Chicago City 
 Ry. Co. V. Mager, 185 111. 336, S& 
 N. E. 1058; Floyd v. Paducah Ry. 
 & L. Co., 23 Am. & Eng. R. Cas. 
 167, 64 S. W. 653; Mitchell v. 
 Third Ave. R. Co., 62 App. Div. 
 (N. Y.) 371, 70 N. Y. Supp. 1118; 
 Halliday v. Brooklyn Heights R. 
 Co., S9 App. Div. (N. Y.) S7, 69 
 N. Y. Supp. 174; Tate v. -Buffalo 
 Ry. Co., S5 App. Div. (N. Y.) S07, 
 67 N. Y. Supp. 403; Griffiths v. 
 Met. St. Ry. Co., 63 App. Div. 
 (N. Y.) 86, 71 N. Y. Supp. 406; 
 Dunican v. Union Ry. Co., 39 App. 
 Div. (N. Y.) 497, S7 N. Y. Supp. 
 326; Devine v. Brooklyn Heights 
 R. Co., 34 App. Div. (N. Y.) 248, 
 S4 N. Y. Supp. 626; Pohle v. Sec- 
 ond Ave. R. Co., 13 App. Div. 
 (N. Y.) 393, 42 N. Y. Supp. 1092; 
 McGrane v. Flushing & C. P. El. 
 Ry. Co., 13 App. Div. (N. Y.) 
 177, 43 N. Y. Supp. 38s. Where 
 the child injured is six years of 
 age it is a question of fact for the 
 jury to determine whether she was 
 in the exercise of proper care, tak- 
 ing into consideration its ' tender 
 years, negligence and other cir- 
 cumstances of the case. Chicago 
 City Ry. Co. v. Tuohy, 95 111. App. 
 314. 
 
INSTRUCTIONS TO JURY. 46/ 
 
 give timely warning of the approach of the car to a crossing 
 as required by the rules of defendant, or as was necessary for 
 the safety of vehicles crossing the tracks, and that in any of 
 the respects referred to, defendant's employees were not exer- 
 cising ordinary care, then the verdict should be for plaintiff," 
 is not erroneous, as it does not substitute the rules of defend- 
 ant as the test of negligence.''® Although there is no allega- 
 tion or proof that the switch by way of which a street car ran 
 off its proper, track and collided with plaintiff's vehicle was 
 improperly constructed, an instruction as to its location, con- 
 struction, and maintenance is proper, where defendant intro- 
 duced evidence to the effect that it was in perfect condition.*' 
 An instruction that the negligence complained of was " in the 
 following particulars," followed by a statement of the allega- 
 tions of all but two counts of the complaint, and also followed 
 by a further charge that the burden of proof was on plaintiff 
 to prove by a preponderance of the evidence the negligence 
 of defendant in some of the particulars charged in the petition, 
 does not submit to the jury a consideration of the negligence 
 alleged in the omitted counts.'" In the absence of evidence 
 upon which it can be predicated, it is error to charge that 
 though plaintiff stepping on the track failed to look and 
 listen, she could recover if by looking and listening she could 
 neither have seen nor heard the approaching car, where there 
 was no evidence on which it could be predicated. It is also 
 error to charge that she could recover if her injury " was 
 caused by defendant's servants " and without want of ordi- 
 nary care on her part.'' It is error to charge that though 
 
 48. Hart V. Cedar Rapids & M. 50. Hart v. Cedar Rapids & M. 
 C. R. Co. (Iowa), 80 N. W. 662. C. R. Co. (Iowa), 80 N. W. 662. 
 
 49. Nashville St. R. v. O'Brien Si- Richmond Tract. Co. v. Hil- 
 (Tenn.), 55 S. W. 300. debrand (Va.), 34 S. E. 888. And 
 
408 STREET SURFACE RAILROADS. 
 
 plaintiff and the driver did not look they were not guilty of 
 contributory negligence if a person exercising ordinary care, 
 who had looked, would have considered it safe to cross the 
 track because the car was so far away.'^ Under the circum- 
 stances of the case, held proper to refuse a request to charge 
 that in determining whether or not the defendant was in the 
 exercise of due care, the jury could take into consideration 
 the fact that defendant had a right of way superior to all other 
 persons at places other than street crossings. '^ Where there 
 was no evidence that there were any vehicles in the street at 
 the time of the accident, an instruction as to the duty of the 
 motorman " considering the number of persons and vehicles 
 on the street," is erroneous-^* It is error to refuse instruc- 
 tions properly stating the issues, which were not fully stated 
 elsewhere in the charge.'^ Nor can the jury properly be 
 instructed in effect, that if the plaintiff was prudent, the acci- 
 dent occurring was the fault of the defendant. So held 
 where the injury was to a cab by collision with defendant's 
 street cars.^* A refusal to charge that the burden of proving 
 negligence on the part of defendant and freedom from negli- 
 gence on the part of plaintiff rests on the plaintiff, and if the 
 evidence of such negligence and freedom from negligence is 
 evenly balanced, the verdict must be for the defendant, con- 
 see Fejdowski v. D. & H. C. Co., Borough of Yeadon (Pa. C. P.), 
 168 N. Y. soo. 8 Del. Co. Rep. 3. 
 
 52. Dummer v. Milwaukee El. 53. North Chicago St. Ry. Co. 
 
 Ry. & L. Co., 108 Wis. S89, 84 V. Smadraff, 189 111. 155, 59 N. E. 
 N. W. 853. 527. 
 
 Refusal to charge that if the 54. Day v. Citizens' Ry. Co., 81 
 
 jury believe certain evidence, the Mo. App. 471. 
 plaintifif was guilty of contributory 55. West Chicago St. R. Co. v. 
 
 negligence, held proper in Bir- Kautz, 89 111. App. 309. 
 mingham Ry. & El. Co. v. Pin- 56. Jones v. Third Ave. R. Co., 
 
 kard (Ala.), 26 So. 880; Bradley v. 34 Misc. Rep. (N. Y.) 201, 68 N. 
 
 Y. Supp. 832. 
 
INSTRUCTIONS TO JURY. 409 
 
 stitutes reversible error.s' An instruction on the theory of 
 sudden exigency or emergency of the business is properly 
 refused in an action for a lineman's death, where it appeared 
 that he ascended the railway company's pole and was killed 
 by contact with a charged wire, when the same work could 
 have been done by ascending the telephone company's pole 
 thirty feet distant where he could have avoided contact with 
 the wires of the railroad company.'® In the absence of evi- 
 dence of ordinary speed of defendant's electric cars, an in- 
 struction that if the car was being managed with ordinary 
 care and was running at the ordinary speed of electric cars 
 lawfully authorized to be operated on the streets of the city 
 plaintifif could not recover, is properly refused.^' An instruc- 
 tion that if plaintifif attempted to hurry across the street in 
 front of the rapidly approaching car he assumes the risk of 
 •collision was held properly refused.*" An instruction ignor- 
 ing the question of the speed at which the car was running, 
 where speed might have been an element of negligence, is 
 erroneous.*' It is error to charge that defendant is liable if 
 the jury find that " collision can be attributed to the want of 
 reasonable care " on its part.*^ An instruction which elimi- 
 nates from consideration plaintiff's mental suffering and 
 humiliation from an assault by a street railroad company's 
 employee is erroneous.*^ 
 
 57. Newcomb v. Met. St. R. Co., And see Geoghegan v. Third Ave. 
 34 Misc. Rep. (N. Y.) 203, (& N. R. Co., 51 App. Div. (N. Y.) 369, 
 Y. Supp. 780. 64 N. Y. Supp. 63a 
 
 58. Jackson & S. St. R. Co. v. 61. Wilson v. Memphis St. R. 
 Simmons (Tenn.), 64 S. W. 70S- Co., 105 Tenn. 74, 58 S. W. 334; 
 
 59. Fttllerton v. Met. St. R. Co., Traver v. Spokane St. R. Co. 
 63 App. Div. (N. Y.) I, 71 N. Y. (Wash.), 65 Pac. 284. 
 
 Supp. 326. 62. Loudoun v. Eighth Ave. R. 
 
 60. Scannell v. Boston El. Ry. Co., 162 N. Y. 380, 56 N. E. 988. 
 Co., 176 Mass. 170, 57 N. E. 341. 63. Birmingham Ry. & El. Co. 
 
4IO STREET SURFACE RAILROADS. 
 
 § 38. Damages in such cases. — The measure of damages and 
 the rules for ascertaining the proper measure are no different 
 in actions based upon negHgence against street railroad com- 
 panies than in other negligence cases, and it is impossible to 
 treat of the subject exhaustively here. In a recent case in 
 New York a verdict of $6,500 was held excessive and reduced 
 to $4,000, although plaintiff complained of an impaired abil- 
 ity to work, stiffness in his back and legs, that his hearing and 
 eyesight were impaired, his nervous system^ affected, he was- 
 troubled with insomnia, and an expert who examined him- 
 diagnosed his trouble as a sprain of the spine with a degree 
 of spinal curvature that might be permanent, where it ap- 
 peared that he was a foreman in the city's service, incapaci- 
 tated by his injuries for less than two months, and after re- 
 turning to duty received a vacation for ten days, and there- 
 after continued to do full service and to receive full pay, and 
 had submitted to, and successfully passed, a physical ex- 
 amination for promotion and had attempted, although he- 
 partially failed in, the difficult athletic feats required by the 
 examination.*^ In another case where the plaintiff was a 
 skilled laborer and had another trade, and at the time of his- 
 injuries was forty years of age and able to earn $25 per month 
 when working by the month or about $1.50 per day, and he- 
 was permanently injured so that he could not work, a verdict 
 of $8,000 was reduced to $5,000.^5 A verdict in favor of a 
 woman for $3,500 was set aside upon the ground of surprise, 
 where she had been examined twelve days after the injury by 
 
 V. Ward, 124 Ala. 409, 27 So. 471. 65. Jones v. Niagara Junction 
 
 And see Nashville St. R. Co. v. Ry., 64 App. Div. (N. Y.) 24, 71 
 O'Bryan (Tenn.), 55 S. W. 30a N. Y. Supp. 647. 
 
 64. Mullady v. Brooklyn Heights 
 R. Co., 65 App. Div. (N. Y.) 549. 
 
DAMAGES. 41 1 
 
 the company's surgeon and made no reference to any injury 
 of her groin, and yet claimed and recovered upon the trial 
 of her action more than eighteen months afterward, that she 
 had a large hernia caused by the accident.*'^ On the other 
 hand, a verdict was set aside as inadequate which was predi- 
 cated upon the reasonable expenses of medical attendance 
 upon the plaintifif made necessary by his injuries, yet had 
 allowed nothing for the injuries themselves/'' An award of 
 $15,000 in an action for killing a physician about fifty years 
 of age, in receipt of an annual income of about $2,000, was 
 held riot excessive.*® Where it appeared that a woman about 
 thirty-one years of age, in good health, capable of earning 
 her own living, sustained a fracture of three ribs on one side, 
 a contusion on her shoulder and head from which she suffered 
 continually to the time of the trial, some seventeen months 
 after the accident, and was short of breath and unable to 
 work; and also that there was a general deterioration in her 
 health, which a physician testified might result from her in- 
 juries, the court refused to set aside a verdict for $4,500.^9- 
 A verdict for $11,000 was held not excessive, it appearing 
 that the plaintiff was a railroad fireman, strong, in good 
 health, receiving a salary of $80 to $90 a month, and was 
 permanently and seriously injured through the negligence of 
 the defendant over nine years before the trial; his right arm 
 having been rendered practically useless and he being unable 
 to earn anything for a long time after the injury and having 
 earned only $2,400 during the nine years, and still being in 
 
 66 Dixon V. Brooklyn Heights 68. Ericius v. Brooklyn HeiglTta 
 
 R. Co., 35 Misc. Rep. (N. Y.) 422. R. Co., 64 App. Div. (N. Y.) 618, 
 
 67. Katz V. Brooklyn Heights R. 71 N. Y. Supp. 596- 
 
 Co , 35 Misc. Rep. (N. Y.) 302. n 69. Ivey v. Brooklyn Heights R. 
 
 N Y. Supp. 744. Co-' 71 N. Y. Supp. 633. 
 
412 STREET SURFACE RAILROADS. 
 
 need of medical services.'" A verdict of $12,000 more than 
 compensates the next of kin of a healthy, bright and indus- 
 trious boy aged twelve years and earning three dollars a 
 week, which he turned over to his mother, for his death 
 caused by the negligence of a corporation, and the verdict 
 was reduced to $7,500.''°^ A verdict of $3,500 will not be 
 set aside as excessive, where it appeared that in consequence 
 of the defendant's negligence the plaintiff's left leg has be- 
 come an inch shorter than the right, the cartilage of the hip 
 joint is wasting away, and that he has become the victim of a 
 gradually progressive disease, permanent in character, which 
 will ultimately destroy the cartilage that covers the neck of 
 the thigh bone and tend to cripple him more and more.'"'* 
 
 70. Baird v. N. Y. C. & H. R. 7o>^- McDonald v. Met. St. R. 
 
 R! Co., 64 App. Div. (N. Y.) 14, R. Co., 36 Misc. (N. Y.) 703. 
 71 N. Y. Supp. 735. 70 J4. Napier v. Brooklyn Heights 
 
 K. R. Co., 68 App. Div. 200. 
 
RIGHTS OF passengers; EMPLOYEES. 413, 
 
 CHAPTER VI. 
 
 Operation Continued; and herein of the Rights and Duties of the 
 Company in its Relation to Passengers; and also to Employees. 
 
 Section i. Measure of care required generally. 
 
 2. Statute and municipal regulation. 
 
 3. Roadbed and track. 
 
 4. Cars and appliances. 
 
 5. Inspection. 
 
 6. Rules adopted by the company. 
 
 7. Rates of fare. 
 
 8. Transfers. 
 
 9. Contract limiting liability. 
 
 10. When relation of carrier and passenger commences. 
 
 11. Who are not passengers. 
 
 12. When relation of carrier and passenger ceases. 
 
 13. Duty of motorman, etc., in management of car. 
 
 14. Duty of employees in looking after safety and comfort of 
 
 passengers. 
 
 15. Boarding cars. 
 
 16. Carrying packages, live animals, and dangerous weapons ini 
 
 the cars. 
 
 17. Crowding cars. 
 
 18. Riding on platform, footboard, or running-board. 
 
 19. Paying fares. 
 2a Alighting. 
 
 21. Trespassers. 
 
 22. Damages for failure to carry passenger. 
 
 23. Assault, etc., upon passenger by employee. 
 
 24. Assault, etc., upon passenger by stranger. 
 
 25. Ejection by employee. 
 
 26. Care of parcels left in car. 
 
 27. False arrest. 
 
 28. Injury to passenger in collision with other vehicle. 
 
 29. Position of apparent peril. 
 
 30. Rate of speed. 
 
 31. Curves and speed thereon. 
 
 32. Presumption of negligence. 
 
 33. Avoidable accident. 
 
 Contributory Negligence. 
 
 34. Measure of care required of passenger. 
 
 35. Children. 
 
414 
 
 STREET SURFACE RAILROADS. 
 
 Section 36. Infirm persons. 
 
 iT- Intoxicated persons. 
 
 38. Employees. 
 
 Pleading and Practice. 
 
 39. Pleading. 
 
 40. Burden of proof. 
 
 41. Questions of evidence in actions for injury to passenger. 
 
 42. Questions for jury in such cases. 
 
 43. Instructions to jury in such cases. 
 
 44. Damages in such cases. 
 
 § 1. Measure of care required generally. — Street surface rail- 
 road companies are common carriers of passengers; and 
 while they do not insure their passengers against all hazards 
 incident to their transportation, they are required to exercise, 
 through their servants, a very high degree of care and skill 
 to see to it that no injury results to a passenger in the trans- 
 portation.' This rule is to be applied, not only to the main- 
 
 I. Koehne v. N. Y. & Q. C. R. 
 Co., 32 App. Div. (N. Y.) 419; 
 afifd., 16s N. Y. 603, 58 N. E. 1089; 
 Lincoln St. R. Co. v. McClelland, 
 54 Nebr. 672, 74 N. W. 1074; In- 
 dianapolis, etc., R. Co. V. Horst, 
 93 U. S. 291, 2Z L. Ed. 898, 3 Am. 
 Rep. 581; Topeka City R. Co. v. 
 Higgs, 38 Kan. 375; Meier v. Pa. 
 R. Co., 64 Pa. St. 225; Bosqui v. 
 Sutro Ry. Co., 131 Cal. 390, 63 
 Pac. 682; Houston & T. C. R. Co. 
 V. Iseo (Tex. Civ. App.), 60 S. W. 
 313; West Chicago St. R. Co. v. 
 Kromshinsky, 185 III. 92, 56 N. E. 
 mo; Hansen v. North Jersey St. 
 Ry. Co. (N. J.), 46 Atl. 718; 
 Holmes y. Ashtabula R. T. Co., 
 10 O. C. D. 638; Grace v. St. Louis 
 R. Co., 156 Mo. 29s, s6 S. W. 1121; 
 Central of Ga. Ry. Co. v. Lipp- 
 man, no Ga. 665, ^(s S. E. 202; 
 Mayor v. Oregon Short Line Co. 
 (Utah), 59 Pac. 522; Smedley y. 
 
 Hestonville, M. & F. Pass. R. Co., 
 184 Pa. St. 620, 39 Atl. 544, 9 Am. 
 & Eng. R. Cas. (N. S.) 649, 42 W. 
 N. C. 169; Baltimore City Pass. 
 R. Co. v. Nugent, 86 Md. 349,, 38 
 Atl. 779, 39 L. R. A. 161; Scott 
 v. Bergen Co. Tract. Co., 48 Atl. 
 1118, aflfg. fsz N. J. L. 407, 43 Atl. 
 1060; Keegan v. Third Ave. R. Co., 
 i6s N. Y. 622, 59 N. E. 1124; E. 
 Omaha St. R. Co. v. Godola, 50 
 Nebr. 960, 70 N. W. 491, 7 Am. 
 & Eng. R. Cas. (N. S.) 300; 111. 
 C. R. Co. V. Davidson (C. C. App. 
 7th C), 76 Fed. 517, 46 U. S. App. 
 300, 22 C. C. A. 306; Parker v. 
 Met. St. R. Co., 69 Mo. App. 54; 
 Payne v. Spokane St. R. Co., 15 
 Wash. 522, 46 Pac. 1054; Posch v. 
 Southern El. R. Co., 76 Mo. App. 
 601, 2 Mo. App. Rep. 10; McCur- 
 rie V. Southern Pac. R. Co., 122 
 Cal. 558, 5 Am. Neg. Rep. 117, 55 
 Pac. 324, 12 Am. & Eng. R. Cas. 
 
CARRIER S CARE. 
 
 415 
 
 tenance of the roadbed, cars, motive power, and other appH- 
 ances of the corporation, but also to the conduct of the agents 
 and servants of the corporation in the operation of the road 
 and in the selection of their employees/ It is not liable how- 
 ever for an injury to a passenger from an accident which is 
 not the reasonable, natural, and probable result of the situa- 
 tion, and which could not have been foreseen by the carrier 
 
 (N. S.) 170; Reynolds v. Richmond 
 & M. R. Co., 92 Va. 400, 23 S. E. 
 770; Texas & P. R. Co. v. Orr 
 (Tex. Civ. App.), 31 S. W. 696; 
 Louisville R. Co. v. Parke, 96 Ky. 
 580, 29 S. W. 4S5; St. Louis, etc., 
 Co. V. Sweet, 60 Ark. 550, 31 S. 
 W. 571; O'Connell v. St. Louis 
 Cable, etc., R. Co., 106 Mo. 482, 
 17 S. W. 494; Alabama G. S. R. 
 Co. V. Hill, 93 Ala. 514, 47 Am. & 
 Eng. R. Cas. 500, 9 So. 722; Cen- 
 tral R. Co. V. Smith, 74 Md. 212, 
 21 Atl. 706; Mont. El. R. Co. v. 
 Mallett (Ala.), 9 So. 363; Chicago 
 City R. Co. V. Engel, 35 111. App. 
 490; So. Kansas R. Co. v. Walsh, 
 45 Kan. 653, 4 Am. R. & Corp. 
 Rep. 231, 47 Am. & Eng. R. Cas. 
 493, 26 Pac. 45; Citizens' St. R. 
 Co. V. Twiname, in Ind. 587; 
 Holley V. Atlanta St. Ry. Co., 61 
 Ga. 215. 
 
 It is liable for an injury caused 
 by its failure to exercise such care, 
 although the negligence or mis- 
 conduct of another passenger in 
 ringing the bell as a signal for 
 starting the car contributed to the 
 injury. Nichols v. Lynn & B. R. 
 Co., 168 Mass. 528, 47 N. E. 427; 
 Pray v. Omaha St. Ry. Co., 5 Am. 
 Electl. Cas. 407, 44 Nebr. 167, 11 
 Am. R. & Corp. Rep. 522, 48 Am. 
 St. Rep. 717, 62 N. W. 447. 
 
 Where the injury was occasioned 
 by an electric car, the court may 
 properly charge in reference to the 
 care required of .the electric rail- 
 road company that " in the use of 
 motive power like electricity, power 
 of such appalling possibility, it 
 should be a very high degree of 
 care." Leonard v. Brooklyn 
 Heights R. Co., 57 App. Div. (N. 
 Y.) 125, 67 N. Y. Supp. 985. 
 
 2. Hansberger v. Sedalia El. Ry. 
 L. & P. Co., 82 Mo. App. 566; 
 Bosqui v. Sutro R. Co., 131 Cal. 
 390; Macon Consol. St. R. Co. v. 
 Barnes (Ga.), 38 S. E. 7S6; Kird 
 V. New Orleans & N. W. R. Co. 
 (La.), 29 So. 729; Chicago & A. 
 R. Co. V. Dumser, 161 111. 190, 43 
 N. E. 698; Hamilton v. Great Falls 
 St. R. Co., 17 Mont. 334, 42 Pac. 
 860; Levi v. Campbell (Tex.), 19 
 S. W. 438. 
 
 If the injury would not have oc- 
 curred if two men instead of one 
 had been managing the car, the 
 company has been held liable. 
 Redfield v. Oakland Consol. St. 
 R. Co., no Cal. 277, 42 Pac. 822; 
 modified however in id. 1063. It 
 must use reasonable care in se- 
 lecting horses for its horse cars. 
 Noble v. St. Joseph, etc., R. Co., 
 98 Mich. 249, 57 N. W. 126. 
 
4i6 
 
 STREET SURFACE RAILROADS. 
 
 in the exercise of even a high degree of care and skill.^ The 
 degree of care required in any case must have reference to 
 the subject-matter and must be such only as a man of ordi- 
 nary prudence and capacity may be expected to exercise in 
 the same circumstances. In some cases this rule will require 
 the highest degree of care, and in others, much less. The 
 fact that except in boarding the car, alighting therefrom, and 
 in taking and occupying a place therein the passenger is 
 unable to look out for himself, is among the circumstances 
 to be considered. The care which should be exercised in 
 the management of cars drawn by horses is not the same as 
 in the management of electric or cable cars propelled at a 
 much higher rate of speed.'* The situation and circumstances 
 
 3. Ayers v. Rochester R. Co., 
 156 N. Y. 104, so N. E. 960; Holt 
 V. S. W. Mo. EI. Ry. Co., 84 Mo. 
 App. 443; Feary v. Met. St. Ry. 
 Co. (Mo.), 62 S. W. 452; Chicago 
 City R. Co. V. Burrell, 70 III. App. 
 60; Davis V. Chicago, M. & St. P. 
 R. Co., 93 Wis. 470, (i7 N. W. 16, 
 1 132; Snedecker v. Nassau El. R. 
 Co., 41 App. Div. (N. Y.) 628, s8 
 N. Y. Supp. 457; Denver & R. G. 
 R. Co. V. Andrews, 11 Colo. App.. 
 204, S3 Pac. 518; Perry v. Malarin, 
 107 Cal. 363, 40 Pac. 489; Hamilton 
 V. West End St. R. Co., 163 Mass. 
 199. 39 N. E. loio; Nelson v. 
 Lehigh Val. R. Co., 25 App. Div. 
 (N- Y.) S35, 50 N. Y. Supp. 63. 
 
 The fact that a banana peeling 
 was on a sidewalk leading to a 
 street railway station, on which a 
 passenger stepped causing him to 
 fall, is not evidence of negligence on 
 the part of the company. Benson 
 V. Man. Ry. Co., 31 Misc. Rep. (N. 
 Y.) 723, 6s N. Y. Supp. 271. Oi' 
 that it attempts to operate its cars 
 
 during a strike of its employees. 
 Fewings v. Mendenhall (Minn.), 
 86 N. W. 96. Only such diligence 
 as is reasonable under the circum- 
 stances can be required of the 
 carrier when an unusual and extra- 
 ordinary demand for transportation 
 of passengers occurs. Chicago & 
 A. R. Co. V. Fisher, 31 111. App. 36. 
 
 4. linger v. Forty-second St., 
 etc., R. Co., 51 N. Y. 497; Wanzer 
 v. Chippewa Val. El. R. Co., 108 
 Wis. 319, 84 N. W. 423; Elwood 
 V. Chicago City Ry. Co., 90 111. 
 App. 397; Ehrhard v. Met. St. Ry. 
 Co., 58 App. Div. (N. Y.) 613, 68 
 N. Y. Supp. 457; Palmer v. Winona 
 Ry. &'L. Co. (Minn.), 80 N. W. 
 869; Pryor v. Met. St. Ry. Co., 
 8s Mo. App. 367. 
 
 The passenger takes the risk of 
 the usual and necessary move- 
 ments of a trolley car, some of 
 which are well known to be sud- 
 den. Brennan v. Brooklyn Heights 
 R. Co. (N. Y.), 5 Am. Electl. Gas. 
 416, 12 Misc. Rep. (N. Y.) 570. 
 
CARRIERS CARE. 417 
 
 ■surrounding the same car at different times and places may 
 require different degrees of care. If they are such from which 
 grave injury might be expected they impose upon the carrier's 
 servants the duty to exercise the utmost skill and foresight 
 to avoid it; as, for example, where the car is followed at a 
 distance of a very few feet by a truck proceeding rapidly and 
 confined to the car track by the presence of vehicles on either 
 side, the conductor of the car is bound to exercise a high 
 degree of care in requiring a passenger to leave it;' or, where 
 it is approaching a steam railroad crossing;* but where the 
 driver of a horse car attempts to move or switch a car from 
 one track to the other in order to cross a bridge then being 
 repaired and permitting the use of only one track, and a 
 passenger at the time claims he was injured thereby and seeks 
 to recover against the company therefor, it is erroneous to 
 charge the jury, under the particular circumstances of the 
 case, that the company was bound to exercise all the care and 
 skill which human prudence and foresight could suggest to 
 secure the safety of their passengers.'' The carrier must also 
 protect the passenger against any injury from the willful mis- 
 conduct, as well as from the negligence, of its servants, and 
 of his fellow passengers and strangers, so far as it can be done 
 in the exercise of reasonable care and prudence.* 
 
 5. Maverick v. Eighth Ave. R. Y. Supp. 147; West Chicago St. 
 Co., 36 N. Y. 378; Paris v. Brook- R. Co. v. Manning, 170 III. 417, 
 lyn City N. R. Co., 46 App. Div. 48 N. E. 958, 9 Am. & Eng. R. 
 (N. Y.) 231, 61 N. Y. Supp. 670; Cas. (N. S.) 364- 
 
 Schenkel v. Pittsb. & B. Tract. Co., 7- Stierle v. Union Ry. Co., 156 
 
 194 Pa. St. 182, 44 Atl. 1072. N. Y. 70, 684, 50 N. E. 419, 834; 
 
 6. Coddington v. Brooklyn C. Dickert v. Salt Lake City R. Co. 
 T. R. Co., 102 N. Y. 66. Or at a (Utah), 59 Pac. 95. 
 
 street crossing where a runaway 8. Gillingham v. Ohio River R. 
 
 team might have been seen. Re- Co., 35 W. Va. 588, 14 S. E. 243, 
 gensburg v. Nassau El. R. Co., 14 L. R. A. 798. 
 58 App. Div. (N. Y.) 566, 69 N. 
 27 
 
4l8 STREET SURFACE RAILROADS. 
 
 § 2. Statute and municipal regulation. — The duty imposed 
 by law upon the carrier of passengers to carry safely, so far 
 as human skill and foresight can go, the persons it undertakes 
 to carry, exists independently of contract; and although 
 there is no contract in a legal sense between the parties, 
 whether there is a contract to carry or the service undertaken 
 is gratuitous, an action on the case lies against the carrier for 
 a negligent injury to a passenger. The la^Y raises the duty 
 out of regard for human life and for the purpose of securing 
 the utmost vigilance by carriers in protecting those who have 
 committed themselves to their hands. Therefore it is no 
 answer in such a case to urge that the passenger was violating 
 a statute regulation against traveling upon Sunday.' Munic- 
 ipal ordinances regarding the manner of operating street 
 cars, the places at which they are to stop and how they are 
 to approach street crossings, cannot,, in the absence of 
 any agreement by the company to be bound thereby, 
 become the basis of liability to a passenger for personal 
 injuries. They are however generally competent evidence 
 upon the question of the negligence of the parties."* 
 Even if a statute provides that no railroad corporation shall 
 be liable for an injury to a passenger while on' the platform 
 of a car, a passenger to whom such statute is applicable, not 
 voluntarily riding upon the platform of a crowded street car 
 
 9. Carroll v. Staten Island R. R. & Corp. Rep. 688; Baldwin v. 
 
 Co., 58 N. Y. 126, 133; Cleveland Barney, 12 R. I. 392, 34 Am. Rep. 
 
 V. Bamgor, s Am. Electl. Cas. 346, 670; Sutton v. Wauwatosa, 29 Wis. 
 
 87 Me. 259; Schmid v. Humphrey, 21, 9 Am. Rep. 534; McDonough 
 
 48 Iowa, 652, 30 Am. Rep. 414; v. Met. R. Co., 137 Mass. 210; 
 
 Phila., etc., R. Co. v. Lehman, 56 Swisher v. Williams (Ohio), 
 
 Md. 209, 40 Am. Rep. 415 ; Nor- Wright, 754. 
 
 ris V. Litchfield, 35 N. H. 271 ; Dela- 10. Byington v. St. Louis R. 
 
 ware, etc., Co. v. Trautwein, 52 Co., 147 Mo. 673, 49 S. W. 876. 
 N. J. L. 169, 19 Atl. 178, I Am. 
 
statute; ordinance. 419 
 
 but required so to do because there was no other place for 
 him in the car which by reasonable exertion he could secure, 
 is not precluded thereby from recovering for personal in- 
 juries if they were occasioned solely by the carrier's neglect." 
 Such a statute with reference to getting on and ofif cars at 
 the front end does not apply to a passenger who, when in- 
 jured, was not getting on or off, but was riding by direction 
 of the driver on the steps of the front platform.'^ Pas- 
 sengers, as well as the carrier, must take notice of municipal 
 ordinances regulating the management of cars upon the 
 street railroads within the city; so, where an ordinance re- 
 quired street cars moving west to stop on the west side of the 
 street to discharge passengers and also compelled them to 
 stop on the east side until signaled by the flagman to cross, 
 the company is not bound on stopping on the east side to 
 give warning of its car starting to cross the street, unless of 
 course it know a passenger to be in peril. '^ As has been 
 seen, municipalities are generally given power to make 
 reasonable ordinances to govern the operation of street rail- 
 roads within their limits. So, a city may, by ordinance, re- 
 quire tickets to be kept for sale upon street cars ; and it may 
 also fix and determine the rate of fare; that is to say, such 
 an ordinance would not be regarded as unreasonable if within 
 the statutory grant of power.'* An electric railroad partly in 
 the District of Columbia and partly in Maryland is subject 
 
 11. Morris v. Eighth Ave. R. Co., Birmingham St. R. Co. v. Calder- 
 68 Hun (N. Y.), 39, 52 St. Rep. wood, 89 Ala. 247, 7 So. 360. 
 
 (N. Y.) 61, 22 N. Y. Supp. 666. I4- Sternberg v. State, 36 Nebr. 
 
 12. Seymour v. Citizens' R. Co., 307, S6 Am. & Eng. R. Cas. 424, 
 114 Mo. 266, S8 Am. & Eng. R. 19 L. R. A. 570, 54 N. W. SS3, 7 
 Cas. 395, 21 S. W. 739. Am. R. & Corp. Rep. 579; De- 
 
 13. Pryor v. Met St. R. Co., 85 troit v. Fort Wayne & B. I. R. 
 Mo. App. 367. And see North Co., 95 Mich. 4S6, 20 L. R. A. 74, 
 
 54 N. W. 9S8. 
 
420 
 
 STREET SURFACE RAILROADS. 
 
 to the Inter-State Commerce Act, although constructed on 
 public highways and evidently a street surface road for the 
 convenience of urban and suburban passengers.'^ 
 
 § 3. Roadbed and tracks. — A railroad company is bound to 
 furnish for its passengers a reasonably safe and sufficient 
 track and equipments, and to maintain them in a reasonably 
 safe condition, so far as can be provided by the utmost human 
 skill, diligence, and foresight, and is liable to a passenger 
 for slight neghgence in any of these respects by which injury 
 to him is occasioned.'* Notice of a patent defect in its track 
 
 IS- Willson V. Rock Creek R. 
 Co., 7 Inters. Com. Rep. 83. 
 
 16. Morris v. N. Y. C. & H. 
 R. R. Co., 106 N. Y. 678, 13 
 N. E. 455; Palmer v. D. & H. 
 C. Co., 120 id. 170, 24 N. E. 
 302; Stierle. v. Union Ry. Co., 
 156 N. Y. 70, 5 Am. Cas. 326, 
 50 N. E. 419; III. Central R. 
 Co. V. Kuhn (Tenn.), 64 S. W. 
 202; St. Louis & S. F. R. Co. v. 
 Mitchell, 57 Ark. 418, 21 S. W. 
 883; Holloway v. Pasadena & P. 
 Ry. Co., 130 Cal. 177, 62 Pac. 478; 
 Byrne v. Brooklyn City & New- 
 town R. Co., 6 Misc. Rep. (N. 
 Y.) 260, 58 St. Rep. (N. Y.) 127, 
 26 N. Y. Supp. 760; affd., 145 N. 
 Y. 619, 6s St. Rep. (N. Y.) 865, 
 40 N. E. 163. (Upon the trial it 
 was also held that evidence of the 
 condition of the track on a subse- 
 quent day is admissible where it 
 is shown that its condition is the 
 same at the time of the trial as 
 at the time of the accident.) Daub 
 V. Yonkers R. Co., 69 Hun (N. 
 Y.), 138, 52 St. Rep. (N. Y.) 527, 
 23 N. Y. Supp. 268. A street rail- 
 road company owns no interest in 
 
 the soil of the highway through 
 which its road passes which may be 
 taxed as real estate; but the inher- 
 ent value of its property above the 
 cost of reproducing the material 
 constituents of its line is subject to 
 State, but not to municipal, taxa- 
 tion. Mayor, etc. of Newark v. 
 State Board of Taxation (N. J. 
 Err. & App.), 24 Am. & Eng. R. 
 Cas. (N. S.) 442, 51 Atl. Rep. 67. 
 And see as to taxation, Newport 
 News & O. P. Ry. & El. Co. v. 
 City of Newport News (Sup. Ct. 
 of App., Va.), 40 S. E. 64s, 24 
 Am. & Eng. R. Cas. (N. S.) 453- 
 As to the right to .condemn right 
 of way for connecting with tracks 
 of another company, see Suburban 
 R. Co. V. Met. West. Side El. R. 
 Co., 24' Am. & Eng. R. Cas. 
 (N. S.) 476, 61 N. E. 1090. It is 
 an additional servitude to operate 
 a street railway upon a street for 
 the transportation of freight, and 
 an abutting owner is entitled to 
 damage for any injury thereby in- 
 flicted on his property, if the in- 
 jury is not one suffered in common 
 with other property along the 
 
roadbed; tracks. 
 
 421 
 
 upon its street is not required; if it exist and appear to have 
 caused the injury complained of, there is a presumption of 
 negligence, and it is incumbent upon the company to prove 
 circumstances showing freedom from negligence.''' So, 
 when a street car approached a point where a wall of a 
 building was being taken down and bricks were piled by a 
 third person in the street close to the tracks, the motorman 
 having had his attention called thereto but disregarding 
 them, the company was held liable for an injury occasioned 
 
 route. Rische v. Texas Transp. 
 Co., 24 Am. & Eng. R. Cas. (N. 
 S.) 486, 66 S. W. 324. As to en- 
 croachment of one road upon an- 
 other, see Fresno St. R. Co, v. 
 So. Pac. R. Co., 24 Am. & Eng. 
 R. Cas. (N. S.) 547, 67 Pac. yyz. 
 17. Worster v. Forty-second St. 
 R. Co., so N. Y. 203; West Chi- 
 cago St. R. Co. V. Stephens, 66 
 III. App. 303, I Chic. L. J. Week. 
 389. Under a statute providing 
 that a street railway company shall 
 keep in repair " the paving, up- 
 per blocking, or other surface ma- 
 terials," of the portion of the street 
 covered by the tracks, and if an 
 unpaved street, an additional space 
 of eighteen inches on each side 
 of the tracks, it is held not to be 
 the duty of the company to fill ex- 
 cavations below the surface level 
 of the street within eighteen inches 
 of its track in an unpaved street, 
 the excavations being made by a 
 sewer contractor by authority of 
 the city, and therefore the railroad 
 company would not be liable to 
 one injured by reason of such ex- 
 cavation. Leary v. Boston El. Ry. 
 Co., 24 Am. & Eng. R. Cas. (N. 
 S.) 481, 62 N. E. I. Under a mu- 
 
 nicipal ordinance requiring such 
 companies to repave and keep in 
 repair to the satisfaction of the 
 proper city authorities a space in 
 the street between lines one foot 
 outside of their outer rails, under 
 a penalty, in an action for negli- 
 gence brought against the com- 
 pany by a passenger who was 
 injured through the defect in the 
 pavement while passing from the 
 car to the sidewalk, it cannot be 
 contended that as the company 
 had never paved the street, the or- 
 dinance was not applicable. Field- 
 ers V. North Jersey St. Ry. Co. 
 (N. J. Sup.), so Atl. S33- And see 
 Dean v. City of Patterson, id. 620; 
 City of Montreal v. Montreal City 
 R. Co. (Rap. Jud. Que.), 19 C. S. 
 504. The railroad company is 
 Lound to know that crowds will 
 congregate on its platform at one 
 of its stations, and the fact that 
 one of its passengers, while await- 
 ing a car, was pushed by a crowd 
 upon a defective board in the plat- 
 form and thus injured, does not 
 shift the responsibility for the in- 
 jury. Indianapolis St. Ry. Co. v. 
 Robinson (Ind.), 61 N. E. 936. 
 
422 
 
 STREET SURFACE RAILROADS. 
 
 to a passenger by the bricks being forced into the car upon 
 the falhng of part of the wall.'^ It is no defense either that 
 the cars could run over the track at a certain rate of speed 
 with safety, and that they were well equipped as compared 
 with the equipment of other roads.'^ Neither is it a defense 
 that the track was in apparently good and safe condition if 
 there were defects rendering it unsafe, which, by the exer- 
 cise of care and skill, might have been discovered and rem- 
 edied.^" But neghgence cannot be imputed to the company, 
 as matter of law, because a car is derailed. The derailment, 
 however, if caused by a bad condition of the street, is evi- 
 dence of negligence which, unexplained, will justify a verdict 
 against the company.^' If it be the result of an unprece- 
 dented rainfall the company must also show its freedom from 
 
 i8. Buehler v. Union Traction Co. 
 (Pa.), 49 Atl. 788. As to obstruc- 
 tion by snow along the tracks, see 
 Dickson v. Brooklyn City & New- 
 town R. Co., 100 N. Y. 170, 3 N. 
 E 65. Where one enters a car, 
 and running along its side to reach 
 the platform, falls over such an 
 obstruction, the question of his 
 contributory negligence is for the 
 jury. Mowrey v. Central City Ry. 
 Co., 66 Barb. (N. Y.) 43. Know- 
 ing that a track is being repaired, 
 a passenger permitted to deposit 
 his fare and take his seat without 
 objection from the conductor is not 
 necessarily negligent. But if he 
 has been warned not to board the 
 car until he has passed the point 
 where repairs are being made and 
 he persists in taking the risk, he 
 is guilty of contributory negli- 
 gence. Valentine v. Middlesex R. 
 Co., 137 Mass. 28. 
 
 19. Bosqui V. Sutro Co. R. Co., 
 131 Cal. 390, 63 Pac. 682. 
 
 20. Chicago, P. & St. L. R. Co. 
 V. Lewis, 145 111. 67, 33 N. E. 960. 
 
 21. Hastings v. Central Cross- 
 town R. Co., 7 App. Div. (N. Y.) 
 312, 40 N. Y. Supp. 93, 29 Chic. Leg. 
 N. 26. So, where the plaintiff, a 
 passenger, was thrown to the floor 
 and injured by the derailment of 
 the car resulting from its colliding 
 with a paving-stone which lay be- 
 tween the rails and was wholly or 
 partially covered by snow and 
 slush, it was held that it was for 
 the jury, not for the court, to de- 
 termine whether the presence of 
 the paving-stone might not have 
 been discovered and the accident 
 avoided by the exercise of that 
 high degree of care which the law 
 imposes on common carriers for 
 the safety of their passengers. Du- 
 senbury v. North Hudson Co. Ry. 
 Co. (N. J.), 48 Atl. 520. 
 
roadbed; tracks. 
 
 423 
 
 presumptive negligence contributing to the injury.^^ If the 
 injury result, however, from a defect in a public bridge over 
 which the carrier passes, as where an iron falls from the roof 
 overhead and injures a passenger, the occurrence, unex- 
 plained, will not warrant a verdict based on the carrier's 
 negligence.^3 ^ street railroad company is not bound to 
 construct its double tracks at such a distance apart that it 
 would be utterly impossible for a passenger standing upon 
 the side platform of an open car to be struck by a closed or 
 
 22. 111. Central R. Co. v. Kuhn 
 (Tenn.), 64 S. W. 202; Libby v. 
 Maine C. R. Co., 85 Me. 34, S8 
 Am. & Eng. R. Cas. 81, 20 L. R. 
 A. 812, 26 Atl. 943. 
 
 23. Birmingham v. Rochester 
 City & B. R. Co., 137 N. Y. 13, 32 
 N. E. 995, 7 Am. R. & Corp. 
 Rep. S13, 18 L. R. A. 764, 49 St. 
 Rep. (N. Y.) 888. But it is no de- 
 fense in favor of a railroad com- 
 pany to an action for injuries to 
 a passenger in a collision of its 
 train with a cow outside of vil- 
 lage Hmits, where the collision 
 would not have occurred had the 
 company fenced its track beyond, 
 and constructed a cattle-guard at 
 such limits, that the cow entered 
 upon its track within the village 
 limits at a point where the com- 
 pany was not bound by law to 
 maintain a fence. Atchison, T. & 
 S. F. R. Co. V. Elder, 149 HI- I73, 
 36 N. E. 565. The New York 
 Railroad Law, § 64, was amended 
 by chapter 140, Laws of 1902, so 
 as to read as follows: 
 
 § 64. When a highway crosses 
 a railroad by an overhead bridge, 
 the frame work of the bridge and 
 its abutments, shall be maintained 
 and kept in repair by the railroad 
 
 company, and the roadway there- 
 over and the approaches thereto 
 shall be maintained and kept in 
 repair by the municipality in which 
 the same are situated; except that 
 in the case of any overhead bridge 
 constructed prior to the enactment 
 of sections sixty-one and sixty-two 
 of this act, the roadway over and 
 the approaches to which the rail- 
 road company was under obliga- 
 tion to maintain and 'repair, such 
 obligations shall continue, pro- 
 vided the railroad company shall 
 have at least ten days' notice of any 
 defect in the roadway thereover 
 and the approaches thereto, which 
 notice must be given in writing by 
 the commissioner of highways or 
 other duly constituted authorities, 
 and the railroad company shall not 
 be liable by reason of any such de- 
 fect unless it shall have failed to 
 make repairs within ten days after 
 the service of such notice upon it. 
 When a highway passes under a 
 railroad, the bridge and its abut- 
 ments shall be maintained and 
 kept in repair by the railroad com- 
 pany, and the subway and its ap- 
 proaches shall be maintained and 
 kept in repair by the municipality 
 in which the same are situated. 
 
424 STREET SURFACE RAILROADS. 
 
 an open car coming from the opposite direction, particularly 
 where thousands of persons for twenty years had been seen 
 riding on the outside steps of the open cars, at or near the 
 spot where it yvas claimed that a passenger standing on the 
 side platform of an open car was struck by a closed car on 
 the other track, at times when they met cars coming from 
 the opposite direction and the cars had passed each other 
 and no one had ever been hurt, nor had any accident ever 
 before happened there, or at any other portion of the road 
 from any such cause.^* But if at the place and time of the 
 accident it appear that the two tracks were nearer to each 
 other because of the sinking of a rail than at other places on 
 the route, the carrier will be liable.^^ jt js not negHgence 
 on the part of the railroad company to run its cars between 
 the pillars of an elevated railroad track leaving a space of 
 fourteen inches between one rail and a row of the pillars, the 
 company using cars narrower than those in ordinary use.^* 
 If, without reasonable cause, a passenger leave such a car 
 and put himself on the outside of it when in motion, he as- 
 sumes the haza:rd of colHding with one of the pillars/^ In 
 a case recently decided by the New York Court of Appeals, 
 
 24. Craighead v. Brooklyn City 25. Herdt v. Rochester City & 
 
 R. Co., 123 N. Y. 391, 33 St. Rep. B. R. Co., 48 St. Rep. (N. Y.) 46, 65 
 
 (N. Y.) 620, 25 N. E. 387. A dis- Hun (N. Y.), 625, 20 N. Y. Supp. 
 
 tance of four feet between the in- 346; affd., 142 N. Y. 626; Gray v. 
 
 ner rails of a public street-car Rochester City & B. R. Co., 61 
 
 track is not as matter of law so Hun (N. Y.), 212, 40 St. Rep. (N. 
 
 small as to be dangerous for the Y.) 715, 15 N. Y. Supp. 927. 
 
 passengers on the cars, where 26. Murphy v. Ninth Ave. R. 
 
 such distance is the minimum au- Co., 6 Misc. Rep. (N. Y.) 298, s8 
 
 thorized by the statute under which St. Rep. (N. Y.) 140, 26 N. Y. 
 
 the street-car system was located. Supp. 783; affd., 149 N. Y. 609. 
 
 Harbison v. Met. St. R. Co., 24 27. Coleman v. Second Ave. R. 
 
 Wash. L. Rep. 438, g App. D. C. Co., 114 N. Y. 609, 24 St. Rep. 
 
 60. And see Kowalski v. Newark (N. Y.) 566, 21 N. E. 1064. On 
 
 Pass. Ry. Co., 15 N. J. L. J. 50. the trial below it was held that 
 
roadbed; tracks. 425 
 
 where damages were sought to be recovered because of the 
 carrier's neghgence, it appeared that the defendant operated 
 a street railroad in the city of Rochester upon its Lake ave- 
 nue Hne, the tracks being located between the curb of the 
 street and the sidewalk, and more or less close to the trees 
 grown upon the sides of the avenue. By a traffic arrange- 
 ment between the defendant and the Rochester Electric Rail- 
 road Company, the latter, operating an electric trolley road 
 from Ontario Beach to the city line, ran its cars over the 
 former's tracks to points within the city limits without any 
 lease, and each company operated and managed its own train 
 of cars; at the time of the accident the deceased was riding 
 upon a car of the Rochester Electric Railroad Company at 
 a point upon the defendant's Lake avenue line, and while 
 standing upon the platform he projected his person beyond 
 the side of the car and was struck upon the head by a tree 
 standing within one foot and seven inches of the rail, and 
 his death was thereby occasioned. It was held that the 
 plaintiff's decedent sustained no contractual relation to the 
 defendant and none such could be predicated upon the mere 
 traffic arrangement between the two companies, which per- 
 mitted the carrier of the deceased, for a compensation, to 
 run its cars over the defendant's tracks; that the defendant 
 had a right to construct its tracks as, and where, it did, and 
 owed the duty of care and precaution for the safe operation 
 of its cars only to its own passengers.^* A passenger who, 
 on alighting from the car, crosses the company's track to 
 reach her destination, may assume that the crosswalk be- 
 
 proof that the pillar with which he of the defendant's negligence to the 
 
 collided was much nearer the jury. Id., 41 Hun (N. Y.) 380. 
 tracks than was ordinarily the case, 28. Sias v. Rochester Ry. Co., 
 
 was sufficient to take the question 169 N. Y. 118, 62 N. E. 132. 
 
426 STREET SURFACE RAILROADS. 
 
 tween the tracks is in a safe condition, and may give her 
 attention to cars that may be approaching; if thereby she 
 fall into a hole in the walk and is injured, she may recover 
 from the company.^' If the company be unable to maintain 
 its roadbed in a condition safe for passengers to step on, 
 through the action of the city authorities in lowering the 
 grade of the street, it is bound to inform its passengers who 
 are about to alight that they cannot do so with safety.^" If 
 the injury to a passenger be occasioned by a collision be- 
 tween the car in which he is riding and another vehicle at a 
 street crossing, the carrier cannot rely on its superior right 
 of way as a defense. Indeed, it has no superior right of way 
 at a crossing.^' Where the occupant of a wagon driving 
 upon a street railroad track is thrown from it by the jolt 
 incident to turning out of the track, the company is not liable 
 for an injury thus occasioned.^^ Street railroad companies 
 are chargeable with notice of ordinances enacted for the 
 public good and are responsible' for any injury occasioned 
 by the violation thereof by its employees. ^^^^ 
 
 29. Mahnke v. New Orleans City sible to show negligence unless 
 
 & L. R. Co., 104 La. 411, 29 So. such condition is alleged in the 
 
 52. And see Wells v. Steinway R. complaint as an element of negli- 
 
 Cc, 18 App. Div. (N. Y.) 180, 45 gence. Nies v. Brooklyn Heights 
 
 N. Y. Supp. 864; Texas & P. R. R. Co., 68 App. Div. (N. Y.) 259. 
 
 Co. V. McLane, 2 Am. & Eng. R. 30. Flack v. Nassau El. R. Co., 
 
 Cas. (N. S.) 263, 32 S. W. 776; 41 App. Div. (N. Y.) 399, 58 N. Y. 
 
 Citizens' St. Ry. Co. v. Twiname, Supp. 839. 
 
 Ill Ind. 587, 13 N. E. 55; Smith 31. O'Neill v. D. D., E. B., etc., 
 
 V. St. Paul City Ry. Co., 32 Minn. R. Co., 129 N. Y. 125, 41 St. Rep. 
 
 1; Gilson V. Jackson Co. Horse (N. Y.) 107, 29 N. E. 84. 
 
 Ry. Co., 76 Mo. 382; Richmond 32. Nivette v. New Orleans & 
 
 City Ry. Co. v. Scott (Va.), 11 'S. L. S. R. Co., 42 La. Ann. 1153, 8 
 
 E. 404; Cartwright v. Chic. Grand So. 581. 
 
 Trunk Ry. Co., 52 Mich. 606, 18 32}^. McAndrew v. St. L. & S. 
 
 N. W. 380. But evidence of the Ry. Co., 88 Mo. App. 97. 
 condition of roadbed is not admis- 
 
CARS AND APPLIANCES. 
 
 427 
 
 § 4. Cars and appliances. — A street surface railroad com- 
 pany need not provide its cars with all known and approved 
 machinery necessary to 'protect its passengers from injury. 
 It is sufficient if it has all the appliances that are approved 
 and in general use and generally deemed necessary, and skill- 
 ful servants, for the safety of passengers.^^ it jg bound to 
 
 33. Caveny v. Neely, 43 S. C. 70, 
 20 S. E. 806; Witsell V. West Ash- 
 ville & S. S. R. Co., 120 N. C. 
 557, 27 S. E. 125; North Chicago 
 St. R. Co. V. Wrixon, 51 111. App. 
 307; Central Vermont R. Co. v. 
 Bateman, 26 U. S. App. 584. If a 
 sand-box has been in use gener- 
 ally for many years, whether or 
 not the car could have been 
 stopped more easily had it then 
 been in use is a question for the 
 jury. Penny v. Rochester R. Co., 
 7 App. Div. (N. Y.) 595, 40 N. Y. 
 Supp. 172; Sharp v. Kansas City 
 Cable Ry. Co. (Mo.), 20 S. W. 93- 
 
 So, where the injury is occa- 
 sioned to a passenger through the 
 car's escape down an incline, if the 
 company use the best machinery 
 known, such as experience had 
 shown was safe, and the accident 
 was caused by something it could 
 not have foreseen or guarded 
 against, though it fails to show the 
 immediate cause, it is not liable. 
 Feary v. Met. St. Ry. Co. (Mo.), 
 62 S. W. 452. And see Wynn v. 
 Central Park, N. & E. River R. 
 Co., 133 N. Y. 575, 44 St. Rep. 
 (N. Y.) 673, 30 N. E. 721. A car- 
 rier is not obliged to adopt an ap- 
 pliance in use by but one other 
 corporation, where there is nothing 
 to call its attention to the fact that 
 its structure as it stands is inse- 
 cure or unsafe. Fox v. Mayor, 
 
 etc., 70 Hun (N. Y.), 181, 53 St. 
 Rep. (N. Y.) 902, 24 N. Y. Supp. 
 43. Where the injury was occa- 
 sioned by a brake-handle which, be- 
 coming unfastened, whirled around 
 rapidly and struck a passenger 
 while she was boarding the car, 
 and it appeared that the brake and 
 its appliances were in good order, 
 were in the same place as all oth- 
 ers, and that the car was managed 
 and the motorman conducted him- 
 self as customary in receiving and 
 discharging large crowds; that no 
 accident had ever happened before 
 from such a cause, and the brake 
 was never known before to kick 
 loose; it was held that the com- 
 pany was not negligent. Holt v. 
 S. W. Mo. El. Ry. Co., 84 Mo. 
 App. 443. An injury occasioned to 
 a passenger by her dress being 
 caught on the plunger of the car, 
 is not such as to render the com- 
 pany liable, it appearing that the 
 plunger was on the car when ob- 
 tained from the best builder and 
 was in the same condition; and it 
 not appearing that any safer ap- 
 pliance was in use or could be 
 procured in the market. Smith v. 
 Kingston City Ry. Co., 55 App. 
 Div. (N. Y.) 143, 67 N. Y. Supp. 
 185; afifd., 169 N. Y. ; Atwood 
 v. Met. St. R. Co., 25 Misc. Rep. 
 (N. Y.) 758, 54 N. Y. Supp. 138. 
 But see West Chicago St. R. Co. 
 
428 
 
 STREET SURFACE RAILROADS. 
 
 provide for the safe transportation of children of tender years 
 as well as for that of adults.^* The use of a street car with- 
 out gates on the platform, in the absence of a statute for- 
 bidding such use, is not negligence which will make the 
 company liable for injuries received by a person thrown 
 from the car.^s And the rule that a common carrier is bound 
 to the very highest degree of care in the equipment of its 
 road and certain of its appliances does not extend to the 
 rods to which the curtains of its car windows are fitted; and 
 the use of a pattern generally employed for the purpose and 
 in which no defect discoverable by inspection exists satisfies 
 the requirements of law.^^ The company may be negligent 
 for a failure to provide the wheels of its cars with suitable 
 guards.37 Yet it has been held that it is not liable for the 
 death of a boy who, in attempting to get upon a moving car. 
 
 V. Johnson, i8o III. 285, S4 N. E. 
 334; Weber v. Met. St. R. Co., 
 22 App. Div. (N. Y.) 628, 47 N. Y. 
 Supp. 812; Chase v. Jamestown St. 
 R. Co., 38 St. Rep. (N. Y.) 954, 
 IS N. Y. Supp. 35; Poulin v. 
 Broadway, etc., R. Co., 61 N. Y. 
 621, affg. 34 Super. Ct. (2 J. & S.) 
 296. 
 
 34- Met. R. Co. v. Falvey (D. C. 
 App.), 23 Wash. L. Rep; 53- 
 
 35. Byron v. Lynn & B. R. Co., 
 177 Mass. 303, 58 N. E. 1015. But 
 the failure to keep closed gates 
 which the company has provided 
 upon its cars may or may not be 
 negligence, according to the cir- 
 cumstances. Augusta R. Co. v. 
 Glover, 92 Ga. 132, 58 Am. & Eng. 
 R. Cas. 269, 18 S. E. 406. It was 
 also held, in an action for the death 
 of a passenger in alighting upon 
 the side next to a parallel track, 
 
 while the gate was open, that it 
 was no defense that other street- 
 car lines, operating on other 
 street-car tracks, in other cities, 
 do not use gates for that purpose. 
 And see Gaffney v. Brooklyn City 
 R. Co., 6 Misc. Rep. (N. Y.) i, 58 
 St. Rep. (N. Y.) 119, 25 N. Y. 
 Supp. 996. 
 
 36. Leyh v. Newburgh El. Ry. 
 Co., 41 App. Div. (N. Y.) 2i8, 58 
 N. Y. Supp. 479, 6 Am. Neg. Rep. 
 361; affd., 168 N. Y. 667, 61 N. E. 
 1131. The fall of a fire extin- 
 guisher fastened to a side of a car 
 about twenty inches above the 
 head of a passenger is prima facie 
 evidence of the carrier's neglect. 
 Allen V. United Tract. Co., 73 N. 
 Y. Supp. 737. 
 
 37. Finkeldey v. Omnibus Cable 
 Co., 114 Cal. 28, 5 Am. & Eng. R. 
 Cas (N. S.) 393, 45 Pac. 996. 
 
CARS AND APPLIANCES. 429 
 
 falls off and is run over and killed by the wheels of a tiailer, 
 although the wheels of the trailer are not provided with such 
 guards as are in common use.^^ Indeed, it may be said 
 generally that its failure to provide its cars with a safety 
 device designed solely for the protection of passengers and 
 employees is not available to one standing in neither of such 
 relations.^' It cannot be held negligent because a bolt used 
 to fasten the step projects underneath so that it scrapes the 
 leg of a passenger who falls from the platform.*" But it is 
 bound to anticipate the increased difficulty in keeping con- 
 trol of its cars when its tracks are slippery with snow, and 
 is liable for an injury due to running down a grade at such a 
 high speed, under such conditions that control of the car 
 was lost after the wheels were locked by the brakes.'*' It 
 should see that snow is removed from the step of its car 
 where a passenger would be likely to slip upon it.'*^ It is 
 not erroneous to say that a carrier by electric car is bound 
 to use the very highest degree of care to see that the electric 
 appliances in use on the car do not get out of order and so 
 endanger the safety of passengers.^ A passenger need not 
 
 38. West Chicago St. R. Co. town St. R. Co., 38 St. Rep. (N. 
 V. Binder, 51 111. App. 420. ' Y.) 954, 15 N. Y. Supp. 35. And 
 
 39. Schepers v. Union Depot R. see Kelly v. Nf Y. & C. B. Ry. Co., 
 Co., 5 Am. Electl. Cas. 398, 126 109 N. Y. 44. 
 
 Mo. 66s, 2 Am. & Eng. R. Cas. (N. 41. Danville St. Car Co. v. Payne 
 
 S.) 9, 29 S. W. 712. (Va.), 24 S. E. 904. 
 
 40. Posten V. Denver Consold. 42. Oilman v. Boston & M. R. 
 Tramway Co., 11 Colo. App. 187, Co., 168 Mass. 4S4, 47 N. E. 193; 
 53 Pac. 391. It is liable to one in- Neslie v. Second & Third St. Ry. 
 jured in consequence of a wheel Co., 113 Pa. St. 300. 
 
 box or guard projecting through 43. Leonard v. Brooklyn Heights 
 the floor, which, to the knowledge R. Co., 57 App. Div. (N. Y.) 125, 
 of the person in charge of the car, 67 N. Y. Supp. 985; Denver Tram- 
 was so out of repair as to be liable- way Co. v. Reid, 4 Colo. App. 53, 
 to trip or throw passengers alight- 35 Pac. 269; Cogswell v. West St. 
 ing from the car. Chase v. James- &• N. E. El. R. Co., S Wash. 46, 
 
430 STREET SURFACE RAILROADS. 
 
 be on the lookout to avoid danger from defects in the car- 
 rier's appliances, and is not negligent unless he fail to use 
 ordinary care after knowledge of the defect or peril.'*'* So, 
 where a woman sufifered injuries by the collapse under her 
 -weight of a trapdoor in the floor of the platform of a street 
 car as she was about to alight, she may recover for her in- 
 juries against the carrier, although she knew that the car 
 had been stopped and the trapdoor raised a short time before, 
 where the car had resumed its journey in the interval and 
 no warning was given to the passengers of any defect. "^ 
 
 § 5. Inspection. — While the carrier is not an insurer of the 
 safety of passengers against accident, it must so inspect its 
 cars and appliances as, in the judgment of those who under- 
 stand the subject, will be sufificient to insure the safety of its 
 passengers from accident.** It is Hable for injuries sustained 
 
 52 Am. & Eng. R. Cas. 500, 7 Am. shock received by a passenger on 
 
 R. & Corp. Rep. 48, 31 Pac. 411; a trolley car is a direct physical 
 
 Burt V. Douglas Co. St. R. Co., and personal assault, for the con- 
 
 83 Wis. 229, S3 N. W. 447, 18 L. sequence of which the company, if 
 
 R. A. 479. If the injury to the negligent, may be held liable, 
 
 passenger be caused by contact 44. Ohio & M. R. Co. v. Stans- 
 
 with a trolley wire charged with berry, 132 Ind. S33. 32 N. E. 218, 
 
 electricity, which breaks and falls 56 Am. & Eng. R. Cas. 285. 
 
 over the rear end of the car, the 45. Washington v. Spokane St. 
 
 ■break being caused solely by a hid- R. Co., 13 Wash. 9, 42 Pac. 628. 
 
 den or latent defect in the wire And see Garoni v. Campagnie, 
 
 which could not have been discov- etc., Co., 39 St. Rep. (N. Y.) 63, 
 
 ered or detected by any reason- 14 N. Y. Supp. 797; Boehncke v. 
 
 able examination, the carrier is Brooklyn City R. Co., 3 Misc. Rep. 
 
 not liable, unless it has been in (N. Y.) 49, 51 St. Rep. (N. Y.) 434, 
 
 some way negligent in respect to 22 N. Y. Supp. 712. 
 
 the danger of such an accident. 46. Leonard v. Brooklyn Heights 
 
 Bait. City Pass. R. Co. v. Nugent, R. Co., 57 App. Div. (N. Y.) 125, 
 
 86 Md. 349, 38 At!. 779, 39 L. R. 67 N. Y. Supp. 985; Smith v. Met. 
 
 A. 161; Buckbee v. Third Ave. St. Ry. Co., 59 App. Div. (N. Y.) 
 
 R. Co., 64 App. Div. (N. Y.) 360, 60, 69 N. Y. Supp. 176. In the 
 
 72 N. Y. Supp. 217. In the case case last cited the injury was caused 
 
 cited, it was held that an electric by a break in the cable where it 
 
INSPECTION. 
 
 431 
 
 hy a passenger in consequence of the breaking of an axle 
 by reason of a latent defect not discoverable by the most 
 vigilant external examination, if it could have been discov- 
 ered in process of manufacturing by the application of any 
 test known to men skilled in such business.*' But where 
 
 "was spliced. Defendant proved 
 that the cable was the best in use 
 and that a system of constant in- 
 spection was maintained, but that 
 the defect was not discovered in 
 time to avoid the accident. The 
 inspectors, however, on duty on 
 the day of the accident were not 
 called, and it was shown that the 
 splice had been made eight days 
 before, thoroughly and carefully, 
 and that it ought to- last five or 
 six weeks; but it was held insuffi- 
 cient to overcome the presumption 
 of negligence arising from the ac- 
 cident. And see Libby v. Me. C. 
 R. Co., 85 Me. 34, 20 L. R. A. 
 812, 58 Am. & Eng. R. Cas. 81, 
 26 Atl. 943; Schneider v. Second 
 Ave. R. Co., 133 N. Y. 583, 30 N. 
 E. 752, 44 St. Rep. (N. Y.) 680. 
 In 1890, the New York Court of 
 Appeals said: "The view which 
 a carrier of passengers may have 
 of what is or is not essential by 
 way of inspection of its road and 
 appliances, is not necessarily con- 
 clusive, although entitled to con- 
 sideration, upon the inquiry as to 
 whether the system is adequate to 
 the demand of duty upon the vigi- 
 lance of the company. The same 
 degree of care and watchfulness 
 are not alike requisite to all of 
 the various portions of the ma- 
 chinery and appliances. The ap- 
 parent necessity for frequency of 
 examination, is somewhat depend- 
 ■ent upon the liability to impair- 
 
 ment and the consequences which 
 may be apprehended as the result 
 of defective condition. But whether 
 the system and the manner of its 
 execution, are all that may be re- 
 quirtd of the carrier cannot be 
 measured by any rule of law to be 
 applied by the court. It must in 
 view of the circumstances appear- 
 ing by the evidence, be one of fact 
 for the jury to determine upon 
 proper instructions relating to the 
 degree of care imposed upon the 
 company; and while it is true that 
 the question of fact so presented is 
 somewhat speculative in the sense 
 that it is not measured by any 
 definite rule, it must nevertheless 
 become a matter of judgment to be 
 expressed by the jury and founded 
 upon the evidence." Palmer v. D. 
 & H. C. Co., 120 N. Y. 170, 176, 
 24 N. E. 302, 30 St. Rep. (N. /.) 
 817. And see Poulsen v. Nassau 
 El. R. Co., 30 App. Div. (N. Y.) 
 246; SI N. Y. Supp. 933. 
 
 47. Hegemen v. Western R. 
 Corp., 13 N. Y. 9. But see Texas 
 & P. R. Co. V. Buckalew (Tex. 
 Civ. App.), 34 S. W. 165. So, 
 where a pane of glass in the door 
 of g. car was cracked by a drunken 
 man in an attempt to open it, and 
 thereafter the plaintiflf entering the 
 car was injured by a piece of the 
 glass falling upon him, it was held 
 that the driver (there being no 
 conductor) should have examined 
 the door and ascertained the ex- 
 
432 
 
 STREET SURFACE RAILROADS. 
 
 it is claimed that the accident was occasioned by the breaking 
 of a brake-chain on a horse car, and it was proved for the 
 defendant by one witness, who had for many years been a 
 chain manufacturer, that in the case of a wrought-iron Hnk, 
 such as composed the chain, it was not possible for the ex- 
 ternal appearance of the iron to be without flaw and yet a 
 flaw exist in. the center; at least, that he never saw it in 
 wrought iron and had been in the business for thirty-eight 
 years; and it also appeared that one of the links of this 
 wrought-iron chain did, in fact, break and was lost and the 
 chain was comparatively a new one; it was for the jury to 
 say whether or not a more minute inspection than was given 
 would have revealed the defect in time to avoid the acci- 
 dent/* In an action against the carrier, by a passenger, to 
 recover damages for personal injuries sustained while seated 
 in the car, testimony describing the car's construction and 
 furnishing is admissible in evidence as part of the res gestae, 
 tending to illustrate the manner of the fall and injury.'" 
 
 § 6. Rules adopted by the company. — A carrier has a right 
 to make such reasonable rules and regulations as will tend 
 to the better protection of its patrons and to the greater con- 
 venience of itself, and when made, a passenger must observe 
 them.5° But passenge;rs are not presumed to know the rules 
 
 tent of its injuries, since he was So held in Siemsen v. Oakland S. 
 
 aware of the break and should L. & H. El. Ry. Co. (Cal.), 66 
 
 have either warned the plaintiff of Pac. 672. 
 
 its condition or refused to receive 48. Wynn v. Central Park, N. & 
 
 him in the car. Allen v. D. D., E. River R. Co., 133 N. Y. 575, 
 
 etc., Ry. Co., 2 N. Y. Supp. 738, 19 44 St. Rep. (N. Y.) 673, 30 N. E. 
 
 St. Rep. (N. Y.) 114. It is respon- 721. 
 
 sible for defects in its cars which 49. Southern Ry. Co. v. Crow- 
 could have been discovered by the der (Ala.), 30 So. 592. 
 exercise of the utmost caution, so- Boster v. Chesapeake & Ohio 
 care, and skill in their construction. R. Co., 36 W. Va. 318, 52 Am. & 
 
CARRIER S RULES. 433. 
 
 and regulations which are made for the guidance of con- 
 ductors and other employees.'' If the passenger refuse to 
 comply with its reasonable regulations, as to fares or other- 
 wise, the company may refuse to carry him.'^ A regulatiom 
 of a carrier whose charter provides for passage over two lines 
 for one fare, that upon the second line the passenger must 
 have a transfer check and comply with its conditions, is not 
 unreasonable. 53 So, a regulation upon a crowded suburban 
 train by which the conductor and a collector start from each 
 end of the train to collect tickets and fares and passengers 
 are prohibited from passing through without a ticket, unless 
 they satisfy the conductor or collector that they have already 
 paid, may be enforced against a passenger having no pre- 
 vious notice thereof, s* A rule of a horse railway company 
 that its driver shall not allow an intoxicated person on the 
 front platform under any circumstances, and a notice or 
 placard posted in the car forbidding all persons to be on the 
 
 Eng. R. Cas. 357, 15 S. E. 158; 29 Pittsb. L. J. (N. S.) 158, 43 W. 
 
 Poole V. Northern Pacific R. Co., N. C. 52. A tender of fivedol- 
 
 16 Oreg. 261; Brown v. Kansas lars in payment of a five-cent fare 
 
 City F. T. S. & G. R. Co., 38 Kan. is unreasonable; and if a passen- 
 
 634; Penn. R. Co. v. Langdon, 92 ger refuses to tender a proper 
 
 Pa. St. 21, 37 Am. Rep. 651; Hous- amount, in compliance with the 
 
 ton & T. C. R. Co. V. Clemmons, rule of the company, she may be 
 
 SS Tex. 88, 48 Am. Rep. 799. ejected. Id.; Barker v. Central 
 
 51. N. Y., L. E. &. W. R. Co. Park, N. & E. kiver R. Co., 151 N.. 
 V. Winter, 143 U. S. 60, 2,6 L. Ed. Y. 237, 35 L- R- A. 489, 45 N. E. 
 71, II Ry. & Corp. L. J. 146, 12 550; Fulton v. Grand Trunk R.. 
 Sup. Ct. Rep. 356; Lesser v. St. Co., 17 U. C. Q. B. 428. 
 
 Louis & S. Ry. Co., 85 Mo. App. iZ- Percy v. Met. St. R. Co., sS 
 
 326. In the case last cited it was Mo. App. 75. 
 
 held that a refusal to charge the 54- Faber v. Chic. G. W. R. Co.,. 
 
 jury that the carrier had the right 62 Minn. 433, 64 N. W. 918. And 
 
 to make reasonable and necessary see Florida S. R. Co. v. Hirst, 30 
 
 rules in the conduct of its busi- Fla. i, 16 L. R. A. 631, 12 Ry. & 
 
 ness is erroneous. Corp. L. J. 218, 11 So. 506, 52 Am. 
 
 52. Muldowney v. Pittsb. & B. & Eng. R. Cas. 409. 
 Tract. Co., 8 Pa. Super. Ct. 335, 
 
 28 
 
434 STREET SURFACE RAILROADS. 
 
 front platform, and stating that the company will not be 
 responsible for their safety there, are reasonable.^s A street 
 railroad company may establish a regulation requiring pas- 
 sengers to pay for packages of such size as to incommode 
 others.5* ■ But it is unreasonable to require a passenger in 
 a street car who has inadvertently placed in the box for the 
 reception of fares more than the required fare to go to the 
 office of the company for reimbursement.^' So a rule of a 
 street railroad company that where its cars stop beyond the 
 crossing they should not be backed to receive a person who 
 has properly signaled, may be unreasonable.'* Whether any 
 particular rule is lawful and reasonable is always a question 
 of law for the court;'' and if it be reasonable, the passenger 
 is bound to submit to it, and the conductor must enforce it, 
 and the physical condition of the passenger, as where he 
 claimed to be afifected by nausea, which might be aggravated 
 by going inside the car in compliance with the regulation of 
 the carrier, and insisted, therefore, in riding on the car plat- 
 form, is no reason why the conductor should not eject him 
 for refusing to go inside.^" If the passenger intentionally 
 
 55. O'Neill v. Lynn & B. R. Co., ing before it stopped, and the pas- 
 155 Mass. 371, 29 N. E. 630. senger would have had seven 
 
 56. Morris v. Atlantic Ave. R. blocks to walk unless he took pas- 
 Co., 116 N. Y. 552, 27 St. Rep. (N. sage. Jackson Ry., L. & P. Co. 
 Y.) 667. The case also held that v. Lowry, 23 Am. & Eng. R. Cas. 
 the conductor was not the sole (N. S.) 103, 30 So. 634. 
 
 judge as to whether a particular 59. Dowd v. Albany Ry., 47 
 
 package came within the regula- App. Div. (N. Y.) 202, 62 N. Y. 
 
 tion, but that it was a question for Supp. 179; Avery v. N. Y. C, etc., 
 
 the jury. Co., 121 N. Y. 31, 30 St. Rep. (N. 
 
 57- Corbett v. Twenty-third St. Y.) 471, 24 N. E. 20; Muckle v. 
 
 R. Co., 42 Hun (N. Y.), 587. Rochester Ry. Co., 79 Hun (N. Y.), 
 
 58. So held where the passenger 32, 61 St. Rep. (N. Y.) 193, 29 N. 
 
 ■on a rainy night with a muddy Y. Supp. 732. 
 
 road had signaled the car, but it 60. Montgomery v. Buffalo Ry. 
 
 went forty feet beyond the cross- Co., 165 N. Y. 139, 58 N. E. 770. 
 
CARRIER S RULES. 435 
 
 "violated the rule he cannot recover if he be ejected therefor 
 or injured thereby, no matter what his excuse may be;*' un- 
 less the carrier has permitted the rule to be generally and 
 notoriously disregarded.*^ It is not necessary to plead the 
 rule in order to give evidence of its violation,*^ nor is it neces- 
 sary that the carrier 'should bring home to each passenger 
 a personal knowledge of the rule it is seeking to enforce.** 
 Whether unnecessary violence was used in enforcing the 
 regulation is always a question of fact for the jury.*' 
 
 § 7. Bates of fare. — The general rule is that the State has 
 power to limit the amount of charges by railroad companies 
 for the transportation of persons and property within its 
 own jurisdiction, unless restrained by some contract in the 
 charter, or unless what is done amounts to a regulation of 
 foreign or interstate commerce;** and the legislative rate is, 
 at least, presumptively reasonable.*' Sometimes the State 
 permits the municipality by ordinance to regulate, reason- 
 ably, the rates of fare of street surface railroad companies 
 within its limits. In determining whether or not such an 
 
 6i. Sweetland v. Lynn & B. R. 65. Vedder v. Fellows, 20 N. Y. 
 
 Co., 177 Mass. 574, 59 N. E. 443, 126. 
 
 SI L. R. A. 783; Calderwood v. 66. Stone v. Farmers' Loan & 
 
 N. Birmingham St. R. Co. (Ala.), Trust Co., 116 U. S. 32s, 29 L. Ed. 
 
 II So. 66. 636; Georgia R. & Banking Co. 
 
 62. Chicago, M. & St. P. R. Co. v. Smith, 128 U. S. 174, 32 L. Ed. 
 V. Lowell, 151 U. S. 209; 38 L. 377; Smyth v. Ames, 169 U. S. 
 Ed. 131, 14 Sup. Ct. Rep. 281. 466, 42 L. Ed. 819, 18 Super. Ct. 
 
 63. Railroad Co. v. Ward, 135 111. 418 (modified rehearing 171 U. S. 
 511, 26 N. E. 520; Gulf C. & S. F. 361, 18 Sup. Ct. Rep. 888, 43 L. 
 Ry. Co. V. Bell (Tex. Civ. App.), Ed. 197)- 
 
 S8 S. W. 614. 67. Beardsley v. N. Y., L. E. & 
 
 64. Barker v. C. P., N. & E. River W. R. Co., 15 App. Div. (N. Y.) 
 R. Co., 151 N. Y. 237, 45 N. E. 550, 251, 257; Ruggles v. Illinois, 108 U. 
 .3 Am. Cas. 313; Vedder v. Fellows, S. S4i. 27 L. Ed. 812; Budd v. N. 
 20 N. Y. 126. Y., 143 U. S. 517, 545, 36 L. Ed. 
 
 247. 
 
436 
 
 STREET SURFACE RAILROADS. 
 
 ordinance is reasonable, resort to the earnings of the road 
 for the years during which conditions prevailed upon which 
 the ordinance is based must be had, although they were ex- 
 ceptionally small. Future possibilities cannot have weight.^* 
 When the grant of franchise by a municipal corporation to 
 a street railroad company fixes the rate of fare to be charged, 
 a reserved right of regulation in an ordinance does not au- 
 thorize a modification or change of the rate during the life 
 of the grant where the statute confers power to fix the rates 
 but no power to thereafter change them.*' The provision 
 
 68. Milwaukee El. R. & L. Co. 
 V. Milwaukee (C. C. E. D. Wis.), 
 87 Fed. 577. It was also held that 
 rates would not be deemed exces- 
 sive demands on the public if lower 
 ones would be confiscatory, where 
 the company had acquired the old 
 independent lines, extended its 
 tracks, and furnished transfers 
 without increasing the fare, so that 
 under the new system one fare 
 would carry a passenger as far as 
 two or three would under the old, 
 while the rates were the same as 
 those generally prevailing in other 
 cities of similar size; that whether 
 or not the earnings were sufficient 
 to justify a reduction of fares de- 
 pended upon the showing of the 
 earning capacity at existing rates, 
 the amount really and necessarily 
 invested in the enterprise, and 
 whether the ratio of return upon 
 the investment was excessive; that 
 an arbitrary reduction of fares was 
 not justified if the railroad bonds 
 are at five per cent, interest and 
 its earnings, adopting a conserva- 
 tive estimate of the value of its 
 property and the largest estimate 
 of its earnings, are only five and 
 
 two-tenths per cent. Coy v. De- 
 troit, Y. & A. A. Ry. Co. (Mich.), 
 85 N. W. 6, 7 Det. Leg. N. 653; 
 Kissane v. Detroit, Y. & A. A. Ry. 
 Co. (Mich.), 79 N. W. 1104, 6 Det. 
 Leg. N. 418. 
 
 6g. Cleveland City R. Co. v. 
 Cleveland (C. C. N. D. Ohio), 94 
 Fed. 385. Also held that the reser- 
 vation of the right to change the 
 rates of fare would not be effective 
 after extension of the road and 
 consolidation with other roads un- 
 der new ordinances by which rates 
 of fare over the extended lines 
 were fixed; but that the munici- 
 pality was not prohibited from 
 modifying such a contract, upon 
 sufficient consideration, by a stat- 
 ute prohibiting it during the term 
 of the grant to release the grantee 
 from any obligation or liability im- 
 posed by the terms of the grant. 
 Id. 
 
 The question recently was be- 
 fore the United States Supreme 
 Court upon an ordinance of the 
 city of Detroit, under statute 
 authorizing it, among other things, 
 to agree with street railroad com- 
 panies upon rates of fare, which 
 
RATES OF FARE. 
 
 43/ 
 
 -of the New York Railroad Law that in cities having a popu- ' 
 lation of 800,000 or more, street surface railroad corpora-' 
 tions may make an intertrafific contract to carry a passenger 
 for a continuous trip and for a single fare not exceeding five 
 
 •should not be increased without 
 the consent of such authorities. 
 Upon the organization of a street 
 railroad corporation to exist for 
 thirty years, the ordinance permit- 
 ting the operation of the street 
 railroad within the streets, pro- 
 vided that the rate of fare for any 
 distance should not exceed five 
 cents in any one car or on any one 
 route named in the ordinance, ex- 
 cept where cars or carriages shall 
 "be chartered for specific purposes, 
 etc. Subsequent ordinances, seven- 
 teen years later, provided for ex- 
 tensions over various other streets, 
 and also for a special tax on gross 
 receipts, and also that the subse- 
 quent ordinance should take eflect 
 upon the filing of a written accept- 
 ance; and that thereby the time 
 limited for the existence of the 
 corporation should continue "for 
 thirty years from that date. There 
 were various reservations in the 
 ordinance. In 1899, and within 
 the thirty years of extended time, 
 an ordinance was passed reducing 
 the rates of fare, and the court 
 said: " Narrowly considered, an 
 act to provide for the formation of 
 street railway companies should 
 contain nothing but provisions re- 
 lating to their formation and 
 organization, but it would be ab- 
 surd to hold that the constitutional 
 provision " (corporations may be 
 formed under general laws, but 
 shall not be created by special act 
 •except for municipal purposes) 
 
 " would prevent the introduction 
 into such an act of various details 
 in regard to the corporation after 
 their formation, and in regard to 
 their government, operation, regu- 
 lation and other matters which 
 might be fairly considered as ger- 
 mane to the particular object 
 named in the title of the statute, 
 and hence, we think it would be a 
 most narrow construction of the 
 constitutional provision to hold 
 that under such a title it was in- 
 competent for the legislature to 
 provide that the benefits and obli- 
 gations conferred and provided for 
 in the act should be made appli- 
 cable to corporations of a like 
 character already organized and in 
 operation. It is germane and ap- 
 propriate to the subject-matter of 
 the act, to enact under such a title, 
 that all companies of the like 
 nature should have the same priv- 
 ileges, is fairly within the general 
 object described in the title. This 
 being true, the companies organ- 
 ized under the tram railway act 
 were equally, with those organ- 
 ized under the street railway 
 act, enabled by the express au- 
 thority of the legislature to enter 
 into a contract for a rate of fare 
 with the city, and when in 1879 
 and the subsequent years, those 
 companies which were organized 
 under the tram railway act en- 
 tered into further agreements with 
 the city in the way of ordinances, 
 those agreements were valid so far 
 
438 
 
 STREET SURFACE RAILROADS. 
 
 cents, nor exceeding the lawful fare, do not apply to such a 
 contract made in 1895, in a city not shown to have then had 
 such a population, by a corporation operating a railroad 
 prior to April, 1899, a large part of which in 1895 was not 
 
 as the objections heretofore con- 
 sidered are concerned, and not sub- 
 ject, in regard to this matter, to 
 alteration at the will of one party 
 only. * * * 
 
 "An examination of them " (the 
 ordinances) "leads us to the con- 
 clusion that not one provided or 
 was intended to provide for a 
 power to alter an agreement in 
 relation to the rates of fare entered 
 into between the parties. The 
 right from time to time to make 
 such further rules, orders, or regu- 
 lations as to the common council 
 may seem proper, cannot be held 
 to extend to the alteration of a 
 contract as to the rate of fare 
 which shall be charged for the 
 transportation of passengers. We 
 think, as was stated by the court 
 below that this reservation per- 
 mitted the city to make further 
 rules or regulations than those con- 
 tained in the ordinances, in regard 
 to all matters incident to the con- 
 struction and operation of the 
 road, such as the location of the 
 tracks in the streets, the placing of 
 switches and turntables, the repair 
 of the pavement between the tracks, 
 the removal or limitation of the 
 number of tracks, in the interest 
 of public travel, the frequency with 
 which cars should be run for the 
 public convenience, the stopping of 
 cars at street crossings, the use of 
 fenders, the rate of speed to be 
 maintained, the sale of tickets, and 
 generally to details of the conduct 
 
 and operation of the railway, which 
 experience might show to be 
 necessary, in addition to or in 
 amendment of those specified in 
 the consent for the protection of 
 life, the accommodation of the pub- 
 lic, and the avoidance of injury to 
 private property. Such regulations 
 are not invasions of the contract 
 rights of the company, and are just 
 and reasonable. Lake Shore & M. 
 S. R. Co. V. Ohio, 173 U. S. 285, 
 305, 43 L. Ed. 702, 709, 19 Sup. 
 Ct. Rep. 465. 
 
 " The fixing of rates is, as we 
 have already said, among the most 
 vital portions of the agreement 
 between the parties contained in 
 the ordinances. It cannot be sup- 
 posed for one moment, with re- 
 gard to a right so fundamental in 
 its nature, that there was any in- 
 tention to permit the common 
 council in its discretion to there- 
 after make an alteration which 
 might be fatal to the pecuniary 
 success of the company. For the 
 reasons already given, we think 
 the language used does not, in 
 fact, give any such power to the 
 common council. The ordinances 
 of 1899 are, so far as this record 
 shows, the first wherein the com- 
 mon council has assumed to make 
 any change in the rates of fare 
 without the assent of the com- 
 pany to be affected thereby. From 
 1862 until 1899 there seems to have 
 been no attempt to exercise this 
 alleged power of alteration by the 
 
RATES OF FARE. 
 
 439 
 
 in the city, and being the successor of a railroad which 
 had been operated for twenty years; such a railroad or its 
 lessee may charge for a continuous trip a fare exceeding five 
 cents.'" A street surface railroad company is bound by a 
 
 common council without the con- 
 sent of the railway company. 
 While the rate of fare existed as 
 agreed upon between the city and 
 the railway company, expenditures 
 involving millions of dollars were 
 entered upon, changing the mode 
 of transportation from animal to 
 electric power, and no claim seems 
 ever to have been made on the part 
 of the city of a right of alteration to 
 be exercised in accordance only 
 with its own views of reason and 
 propriety. This in itself is a 
 strong implication of the want of 
 any such power under the various 
 reservations set forth in the fore- 
 going statement of facts and con- 
 tained in the ordinances specified. 
 But, aside from that and consider- 
 ing only the nature of the right 
 itself growing out of the agree- 
 ment as to fares, we are of the 
 opinion that not one of the reser- 
 vations of the right to make fur- 
 ther rules or regulations could by 
 any fair construction be held to 
 include the right on the part of the 
 city at its own pleasure to reduce 
 the rates of fare agreed upon in 
 those ordinances." 
 
 In the same case, the court also 
 held that the corporation could 
 take an extended term, as provided 
 for in the ordinance, and it formed 
 a good consideration for the agree- 
 ment on the part of the company 
 to perform the other obligations 
 contained in the ordinance, al- 
 though the life of the corporation 
 
 was limited to a time far short of 
 the extended term. Detroit v. De- 
 troit Citizens' St. R. Co., decided 
 March 3, 1902. 
 
 70. Brooklyn Elev. R. Co. v. 
 B. & W. E. R. Co., 23 App. 
 Div. (N. Y.) 29, 48 N. Y. Supp. 
 665. It was also held that an 
 agreement entered into between 
 street railroad companies having 
 connecting lines that one of them 
 should make no discrimination in 
 the rate of fare over its road in 
 favor of any other railroad and 
 against the other party to the con- 
 tract, there being no requirement 
 that the rate of fare in the absence 
 of any discrimination should not 
 be as low as the former company 
 might choose to make it, is not a 
 violation of public policy. 
 
 Section 39, article II, New York 
 Railroad Law, giving a right of ac- 
 tion and the penalty for charging 
 and receiving more than the lawful 
 rate of fare, does not apply to a 
 case where the conductor of a car 
 to which the passenger has been 
 transferred attempts to collect the 
 same fare in ignorance of the pas- 
 senger's right to continue his ride. 
 Stewart v. Met. St. R. Co., 20 
 Misc. Rep. (N. Y.) 60s, 46 N. Y. 
 Supp. 414. A person having no in- 
 tention to make a thorough trip, 
 demanding a transfer over a con- 
 necting line merely in order to have 
 the demand refused and to bring 
 an action to recover the statutory 
 penalty for the refusal, cannot be 
 
440 STREET SURFACE RAILROADS. 
 
 representation made by one of its conductors to a passenger 
 that its car will carry him between two points for a fare 
 named.''' The provisions of the New York Street Surface 
 Railroad Act of 1884, chap. 252, to the efifect that no com- 
 pany or corporation incorporated under or constructing and 
 operating a railroad under the act shall charge any passenger 
 more than five cents for one continuous ride from any point 
 on its road, or on any road or line or branch operated by it, 
 or under its control, to any other point thereon, or on any 
 connecting branch thereof within the limits of any incorpo- 
 rated city or village, do not apply to routes or roads leased 
 from steam railroad companies. ^^^ A common carrier has 
 the right to issue and sell special tickets at a reduced rate 
 of fare in consideration of the purchaser's agreement to cer- 
 tain conditions and limitations contained therein, among 
 the which is that the ticket shall not be transferred; and the 
 use of such a ticket by another to whom it has been trans- 
 ferred in violation of the contract is an actionable wrong.'* 
 
 § 8. Traiufeni. — In cases where by law or by the contract 
 the carrier is bound to furnish a transfer to his passenger 
 over a connecting line, it must see to it that the correct trans- 
 fer is furnished, and the passenger is not necessarily negligent 
 if he fail to discover any error therein. Street railroad com- 
 panies are permitted to make and enforce all reasonable rules 
 with respect to the use of transfers that may be necessary 
 to protect them against imposition and are consistent with 
 
 considered a passenger, and his ac- St. R. Co., 24 App. Div. (N. Y.) 
 
 tion for the penalty cannot be 617, 48 N. Y. Supp. 1026. 
 
 maintained. Myers v. Brooklyn 72. McNulty v. Brooklyn Heights 
 
 Heights R. Co., 10 App. Div. (N. R. Co., 36 Misc. Rep. (N. Y.) 402. 
 
 Y.) 335, 41 N. Y. Supp. 798, 75 St. -jz. D., L. & W. Ry. Co. v. 
 
 Rep. (N. Y.) 1 197. Frank (U. S. C. C. N. Y.), no 
 
 71. Wright V. Glens Falls, etc., Fed. 689. 
 
TRANSFERS. 44I 
 
 the rights of the public. A railroad limiting the use of the 
 transfer to the next car is proper if there be room on such 
 car for the passenger to ride with reasonable comfort and 
 safety. A rule with respect to the punching of transfers is 
 reasonable if due precaution be taken to insure its observance 
 and application in such a manner as to protect a passenger 
 who had received the transfer from the conductor of the 
 other car only a few minutes before and had taken the first 
 car on which the transfer, if properly punched, would have 
 entitled him to ride. If the passenger, by reason of the 
 •company's inattention to its own rules regarding transfers 
 or to statutory requirement in that regard, is ejected, he is 
 not confined to an action for a breach of the contract for 
 transportation; if he were, the carrier might be encouraged 
 to employ negligent or incompetent conductors, to the seri- 
 ous annoyance and inconvenience of the traveling public; 
 l)ut he is entitled to maintain an action for the wrongful ejec- 
 tion, and to recover the compensatory damages, including 
 the indignity, the humiliation, and injury to his feelings 
 caused by the remarks of the conductor while ejecting him, 
 as well as by the ejection itself. Exemplary damages, how- 
 ever, will not be awarded unless it appear that the defendant 
 had been guilty of negligence in employing or retaining the 
 ofifending conductor, or he had shown incompetence or pre- 
 vious misconduct.'* If the transfer which should have been 
 
 74. Eddy V. Syracuse R. T. Co., Co. (Mich.), 80 N. W. 1080; Rouser 
 
 SO App. Div. (N. Y.) 109, 112, 63 V. North Park St. R. Co., 97 Mich. 
 
 N. Y. Supp. 64s; Hayter v. Bruns- s6s, S6 N. W. 937; Muckle v. Roch- 
 
 Tvick Tract. Co. (N. J. Sup.), 49 ester R. Co., 79 Hun (N. Y.), 32, 61 
 
 Atl. 714; Carr v. Toledo Tract. Co., St. Rep. (N. Y.) 193, 29 N. Y. Supp. 
 
 19 Ohio C. C. 281, 10 O. C. D. IZi; Laird v. Pittsb. Tract. Co., 166 
 
 296; Cleveland, C, C. & St. L. Ry. Pa. St. 4, 31 Atl. 51, 36 W. N. C. 
 
 Co. V. Qulllen, 22 Ind. App. 496; 24, 2 Det. Leg. N. 339, 25 Pittsb. L. 
 
 Vining v. Detroit, Y. & A. A. Ry. J. (N. S.) 291; Vicksburg R. P. 
 
442 
 
 STREET SURFACE RAILROADS. 
 
 given to the passenger would not have entitled him to ride- 
 upon the car he took, he cannot recover for the ejection, since 
 the transfer would be conclusive evidence of his rights.^' 
 
 & M. Co. V. Marlett (Miss.), 29 
 So. 62; Ray V. Cortland & H. 
 Tract. Co., ig App. Div. (N. Y.) 
 530, 46 N. Y. Supp. 521; Kiley v. 
 Chicago City Ry. Co., 90 111. App. 
 27s. It would seem, however, that 
 upon appeal in the case last cited 
 it was' held that the plaintifif could 
 not recover for any injuries sus- 
 tained where reasonable force had 
 been used to eject her, it being 
 her duty to peaceably leave the car 
 and seek redress in the courts, 189 
 111. 384, 59 N. E. 794; O'Rourke 
 v. Citizens' St. Ry. Co., 103 Tenn. 
 124, 46 L. R. A. 614, 52 S. W. 872. 
 Also held that the passenger is not 
 bolind by the conditions printed 
 on the back of a transfer ticket, 
 though there is printed on the face 
 thereof a recital that "the passen- 
 ger in accepting this transfer 
 agrees to read and be governed by 
 the conditions on the back hereof 
 subject to the rules of the com- 
 pany," unless the conditions so im- 
 posed are reasonable; and that a 
 condition providing thai a part of 
 the conditions on which it is given 
 and accepted are that passengers 
 shall examine the time and direc- 
 tions and see that the same are 
 correct, is not reasonable and will 
 not be enforced when the system 
 of figures and punches used to in- 
 dicate time of transfer are so com- 
 plicated as to be not easily under- 
 stood by persons of ordinary in- 
 telligence; also that the condition 
 providing that "in accepting this 
 transfer passenger agrees that in 
 
 case of controversy with conductor 
 about this ticket and its refusal, to 
 pay the regular fare charged, and 
 apply at the office of the company 
 for a refund of the same within 
 three days," is unreasonable. Id. 
 And see Davis v. Railroad Co., 107 
 Ga. 420; McMahon v. Third Ave. R.. 
 Co., 47 N. Y. Super. Ct. (15 J. & 
 S.) 282; Heffron v. Detroit City 
 R. Co., 92 Mich. 406, 31 Am. St. 
 Rep. 601, 52 Am. & Eng. R. Cas. 
 588, 52 N. W. 802, 16 L. R. A. 
 34S. Where the defense in an ac- 
 tion for damages for ejection from 
 a street car was that the plaintiff's 
 transfer ticket had expired, evi- 
 dence of statements made at the, 
 time of the ejection by some un-' 
 known person, not a party, that 
 he had seen plaintifif leave the other 
 car and take the one he was on, 
 is inadmissible as hearsay and not 
 the best evidence. Woods v. Buf- 
 falo R. Co., 35 App. Div. (N. Y.) 
 203, 54 N. Y. Supp. 735. A trans- 
 fer ticket given by one street rail- 
 road company over another line 
 operated by it entitled the passen- 
 ger to passage upon the first car 
 on the other line in which he can 
 find a seat, irrespective of the pro- 
 visions of section 104 of the New 
 York Railroad Law. Jenkins v. 
 Brooklyn Heights R. Co., 30 App. 
 Div. (N. Y.) 622, 51 N. Y. Supp. 
 868; Hanna v. Nassau El. R. Co., 
 18 App. Div. (N. Y.) 137; 45 N. Y. 
 Supp. 437. 
 
 75- Keen v. Detroit El. R. Co.. 
 (Mich.), 81 N. W. 1084. 
 
TRANSFERS. 
 
 443. 
 
 Neither can he recover if he fail to procure the necessary 
 transfer and refuse to pay his fare on the last car.'^ But if 
 the company have established by its practice a. right in its 
 passengers to change without a transfer ticket from one car 
 into another in the completion of their journey, such prac- 
 
 76. Graves v. Newark & B. St. 
 Ry. Co., 6 N. J. L. J. 307; Ander- 
 son V. Union Tract. Co., 7 Pa. Dist. 
 Ct. 41; Wakefield v. South Boston 
 R. Co., 117 Mass. 544. Where 
 there is no community of enter- 
 prise between two connecting rail- 
 road companies, one of them is not 
 liable for ejecting a person who 
 presents a transfer ticket from the 
 other which was not acceptable 
 under the reasonable rules of the 
 company, where a mistake was 
 made in issuing the same by an 
 employee of the connecting road. 
 Jacobs V. Third Ave. R. Co., 34 
 Misc. Rep. (N. Y.) 512, 69 N. Y. 
 Supp. 981, revg. 33 Misc. Rep. (N. 
 Y.) 802. The case cited was itself 
 reversed and the one in 33 Misc. 
 Rep. (N. Y.) affirmed. See N. Y. 
 L. J. of April 28, 1902, Vol. 27, No. 
 24. The headnote is as follows: 
 
 "A street railroad company is- 
 suing transfer tickets to passen- 
 gers under a mutual traffic arrange- 
 ment with a connecting railroad 
 company acts as the agent of such 
 connecting company, and the lat- 
 ter is liable if it ejects a passenger 
 who presents a transfer ticket in- 
 correctly punched by an employee 
 of the first railroad company. 
 
 " There can be no such thing as 
 a reasonable regulation by a rail- 
 road company which protects it 
 against the mistakes of its own 
 agents, which result in the invasion 
 of an innocent passenger's rights. 
 
 "The good faith of a conductor 
 in ejecting a passenger present- 
 ing a transfer ticket, incorrectly 
 punched, affords no protection to 
 the railroad company in whose em- 
 ployment he acts." 
 
 And the court said: "The 
 learned Appellate Term reversed 
 the judgment upon the grounds 
 that the business transacted by 
 the respective railroads was wholly 
 independent the one of the other, 
 and that nothing was shown to es- 
 tablish a common interest in the 
 fares received, which was essential 
 to the imposition of the liability 
 sought to be established in this 
 action. This view entirely ignored 
 the provisions of the traffic agree- 
 ment, wherein each railroad for a, 
 valuable consideration agreed to 
 transport the passengers of the 
 other. Under such circumstances 
 the obligation imposed upon each 
 was to transport passengers de- 
 livered by the other, holding trans- 
 fer tickets, in the same manner 
 and subject to the same liability 
 as though the passenger paid a 
 cash fare therefor to the railroad 
 guilty of the breach of contract of' 
 carriage. While the rule was rec- 
 ognized by the learned Appellate 
 Term that the authorities support 
 a cause of action in tort, where a 
 mistake is made by a servant of 
 the company guilty of an invasion 
 of an innocent passenger's rights, 
 yet it was held that such rule did 
 
•444 
 
 STREET SURFACE RAILROADS. 
 
 tice cannot be changed without due notice.'' If the transfer 
 ticket designates the route by which the carriage of the pas- 
 senger may be continued so generally as to be applicable to 
 several lines, he has the right to be transported over either.'* 
 The right of the street car passenger, under New York 
 
 not apply to the circumstances of 
 this case for the reason that the 
 one committing the mistake was 
 not the agent nor servant of the 
 company, and that such company 
 was justified in making and enforc- 
 ing reasonable rules and regula- 
 tions respecting the recognition of 
 transfer tickets. The first position 
 necessarily falls under the observa- 
 tions already made and cannot be 
 supported. There can be no such 
 thing as a reasonable rule and 
 regulation which protects the com- 
 pany against the mistakes of its 
 own agents which result in the 
 invasion of a passenger's rights, 
 otherwise all that would be neces- 
 sary for a railroad corporation to 
 do would be to regulate a given 
 subject and then shield itself be- 
 hind such regulation when called 
 to account for an infringement of 
 the legal .rights of its passengers. 
 " It is contended, however, by the 
 respondents that the conductor in 
 what he did acted in good faith, 
 was guilty of no malice, and sought 
 to protect the property' of the com- 
 pany, which by reasonable regu- 
 lation he was called upon to do in 
 the performance of his duty. The 
 good faith of the conductor is of 
 no consequence. It could not au- 
 thorize or protect against unlawful 
 acts. Yates v. N. Y. C. & H. R. 
 R., 67 N. Y. 100; Jenkins v. B'klyn 
 
 Heights R., 29 App. Div. 8. Fur- 
 ther reliance is placed by counsel 
 upon the case of Townsend v. N. 
 Y. C. & H. R. R., s6 N. Y. 296. 
 This case must be limited to its 
 facts and is not authoritative be- 
 yond it. There a passenger was 
 possessed of no ticket, and sought 
 to ride upon his statement that he 
 had paid his fare and that his 
 ticket had been taken up before he 
 changed cars, and he was held 
 negligent in not procuring the de- 
 livery of his ticket by the other 
 conductor. This case has been 
 several times distinguished (Eng- 
 lish V. Del. & H. C. Co., 66 N. Y. 
 454) and does not seem even to 
 have been followed upon the sub- 
 sequent trial of that action. 6 T. 
 & C, 495; Ray v. Cortlandt & 
 Homer Traction Co., 19 App. Div. 
 S3. The present case is distin- 
 guishable, for here there was no 
 negligence of the passenger. He 
 presented a ticket for which he had 
 paid and which entitled him to 
 passage under his contract of car- 
 riage." 
 
 7T. Consold. Tract. Co. v. Ta- 
 born, s8 N. J. L. (29 Vroom), i 
 408, 32 Atl. 68s, 2 Am. & Eng. R. 
 Cas. (N. S.) 124. 
 
 78. Pine V. St. Paul City R. Co. 
 (Minn.), 52 Am. & Eng. R. Cas. 
 584, S2 N. W. 392, 16 L. R. A. 
 347. 
 
CONTRACT LIMITING LIABILITY. 
 
 445 
 
 Railroad Law, § 104, to one continuous trip for a single 
 fare, and upon demand to have a transfer entitling him to 
 such continuous trip delivered without extra charge, cannot 
 be incumbered by an arbitrary condition that he shall. take 
 a car within ten minutes after receiving his transfer, regard- 
 less of whether the cars passing within that time afiford 
 opportunity or convenience for passengers.^' The city of 
 Atlanta, Georgia, has no power to compel the Atlanta Con- 
 solidated Transfer Company to issue transfers.*" 
 
 § 9. Contract limiting liability. — The duty of a carrier of 
 passengers to use extraordinary diligence to protect the lives 
 and persons of his passengers cannot be waived even by 
 express contract.*' 
 
 79. Jenkins v. Brooklyn Heights 
 R. Co., 29 App. Div. (N. Y.) 8, 51 
 N. Y. Supp. 216, 5 Am. Cas. 315. 
 
 80. Atlanta v. Old Colony Trust 
 Co. (C. C. App. sth C), 59 U. S. 
 App. 230, 88 Fed. 859. 
 
 81. Central of Georgia Ry. Co. v. 
 Lippman, no Ga. 665; Randall v. 
 New Orleans & N. E. R. Co., 45 
 La. Ann. 778, 13 So. 166; Terra 
 Haute & I. R. Co. v. Sherwood, 
 132 Ind. 129, 31 N. E. 781, 17 L. 
 R. A. 339; Louisville, N. A. & 
 C. P. Co. V. Faylor, 126 Ind. 126, 
 25 N. E. 869, 25 Ohio L. J. 55; 
 Fort Worth & D. C. Ry. Co. v. 
 Rogers, 21 Tex. Civ. App. 605, 53 
 S. W. 366; Williams v. Railroad 
 Co., 18 Utah, 210; Louisville & N. 
 R. Co. V. Bell, 100 Ky. 203. But 
 see Bissell v. N. Y. C. R. Co., 25 
 N. Y. 442; Blair v. Erie Ry. Co., 
 66 id. 313. In the case last 
 cited, after quoting certain authori- 
 ties, the court said: "It will thus 
 be seen, that in each of the cases 
 
 cited there was an express pro- 
 vision which evidently guarded 
 against every kind ' of personal in- 
 jury from whatsoever cause,' which 
 might, perhaps, include such as 
 might arise from negligence. 
 While here no language is em- 
 ployed which can be fairly inter- 
 preted as aimed against negligence, 
 it would, I think, be extending the 
 purpose and scope of the contract 
 in this case far beyond its legiti- 
 mate object, to hold that it was 
 designed to protect the defendant 
 against its own negligent acts. 
 The English cases which are cited 
 and which have been examined, 
 did not establish the proposition 
 contended for, and no case has 
 been referred to where it is held 
 that any language, except such as 
 was entirely clear and unmistak- 
 able in its terms, will exempt a 
 railroad company from liability for 
 negligence. It may also be ob- 
 served that there is quite a distinc- 
 
446 
 
 STREET SURFACE RAILROADS. 
 
 § 10. When relation of carrier and passenger commences. — 
 
 A person who has signaled a street car and it has stopped 
 for him has been held to become a passenger at once.*^ 
 Certainly, where a street car stops at a usual place for pas- 
 sengers and a person, in the exercise of due care, gets on 
 the steps or platform, or places one foot on the step of the 
 car for the purpose of taking passage while it is so waiting, 
 he is to be regarded as a passenger.*^ Where two street 
 railway companies contract to give transfers and carry the 
 passengers of each other over their respective roads, a person 
 paying his fare and receiving a transfer from one road is a 
 passenger on the other.^* But one does not become ^ pas- 
 senger by attempting to board a moving electric street car 
 after it has passed the proper and usual stopping place, so 
 as to entitle him to the high degree of care due from the 
 
 tion between cases where damages 
 for injuries are expressly provided 
 against or where the traveler agrees 
 to be carried at his own risk, and 
 those where the contract states, 
 generally, that the carrier assumes 
 no liability." 
 
 82. Carney v. Cincinnati St. Ry. 
 Co., 8 Ohio S. & C. P. Dec. 587; 
 West Chicago St. R. Co. v. Ship- 
 lett, 8s 111. App. 683. But see 
 Donovan v. Hartford St. R. Co., 
 65 Conn. 201, 33 Atl. 350, 29 L. R. 
 A. 297; Schaefer v. St. Louis S. R. 
 Co., 128 Mo. 64, 30 S. W. 331. 
 
 83. Gaffney v. St. Paul City Ry. 
 Co., 81 Minn. 459, 84 N. W. 304; 
 Citizens' St. Ry. Co. v. Merl (Ind. 
 App.), 59 N. E. 491; Barth v. Kan- 
 sas City Elev. R. Co., 142 Mo. 
 535, 10 Am. & Eng. R. Cas. (N. 
 S.) 281, 44 S. W. 778; Drew v. 
 Sixth Ave. R. Co., 26 N. Y. 49, i 
 Abb. Ct. App. Dec. 556; Ganiard 
 
 V. Rochester City & B. R. Co., 50 
 Hun (N. Y.), 22, 18 St. Rep. (N. Y.) 
 692; affd., 121 N. Y. 661; Wallace V. 
 Third Ave. R. Co., 36 App. Div. 
 (N. Y.) 57, 5S N. Y. Supp. 132; 
 Gordon v. W. E. St. Ry. Co., 175 
 Mass. 181, 55 N. E. 990; Smith v. 
 St. Paul City Ry. Co., 32 Minn. 
 I, 16 Am. & Eng. R. Cas. 310; 
 McDonough v. Met. R. Co., 137 
 Mass. 210. 
 
 84. Jacobs V. Third Ave. R. Co., 
 69 N. Y. Supp. 981. So held 
 where a woman with a transfer 
 ticket approaching a street car to 
 get on was struck by a piece of the 
 trolley-pole which broke while the 
 motorman was trying to change it 
 to the other end of the car. Keator 
 V. Scranton Tract. Co., 191 Pa. St. 
 102, 43 Atl. 86, 6 Am. Neg. Rep. 
 187, 44 L. R. A. 546; Fay v. Met. 
 St. R. Co., 62 App. Div. (N. Y.) 
 51, 70 N. Y. Supp. 763. 
 
WHEN BECOMES PASSENGER. 
 
 447 
 
 carrier; to make him such there must have been some act 
 on the part of those in charge of the car indicating accept- 
 ance, such as an act indicating an intention to stop for him. 
 The relation can only be created by contract, express or 
 implied.^5 jf the carrier accept a fare from a person riding 
 on the front platform of a crowded car, he thereby becomes 
 a passenger and cannot be ejected for a violation of the rule 
 of the company against riding on the front platform, cer- 
 tainly without returning his ticket or fare.*^ If as he step 
 upon the platform of a car he announce his intention not to 
 pay, but is allowed to enter and sit down like the other pas- 
 sengers and the fare is afterward demanded of him in the 
 usual manner, he is entitled to be treated as a passenger.^^ 
 So, if the company undertake to transport him gratuitously.^^ 
 Whether the plaintiff was on the car as a passenger is a ques- 
 tion of fact for the jury if the evidence be conflicting.*' 
 
 85. Schepers v. Union Depot R. 
 Co., 5 Am. Electl. Cas. 39*^, 126 
 Mo. 66s, 29 S. W. 712, 2 Am. & 
 Eng. R. Cas. (N. S.) 9; Farley v. 
 Cincinnati, H. & D. R. Co. (U. S. 
 C. C. A., Ohio), 108 Fed. 14; Hi- 
 Central R. Co. V. O'Keefe, 168 111. 
 115, 48 N. E. 294. 
 
 86. Hanna v. Nassau El. R. Co., 
 18 App. Div. (N. Y.) 137, 45 N. Y. 
 Supp. 437. 
 
 87. Sanford v. Eighth Ave. R. 
 Co., 23 N. Y. 343. 
 
 88. Perkins v. N. Y. C. R. Co., 
 24 N. Y. 196; Rosenberg v. Third 
 Ave. R. Co., 47 App. Div. (N. Y.) 
 323, 61 N. Y. Supp. io£2; Buck v. 
 People's St. R., etc., Co., 108 Mo. 
 179, 52 Am. & Eng. R. Cas. 512, 
 18 S. W. 1090; North Chicago St. 
 R. Co. V. Williams, 140 111. 27s, 52 
 Am. & Eng. R. Cas. 522, 29 N. E. 
 €72. 
 
 8g. Meyer v. Second Ave. R. 
 Co., 21 N. Y. Super. Ct. (8 
 Bosw.) 305; Buffet V. Troy & Bos- 
 ton R. Co., 40 N. Y. 168; Gordon 
 V. Grant St. & Newtown R. Co., 
 40 Barb. (N. Y.) 546. In an ac- 
 tion against a street railroad com- 
 pany, where it was sought to 
 recover for injuries to a boy, sus- 
 tained by him while playing on 
 cars left by the defendant in the 
 street at the end of its line, an in- 
 struction " that plaintifif was not a 
 passenger nor entitled to the rights 
 of the passenger at the time of the 
 injury," where the jury were not 
 told what defendant's liability was 
 to passengers, is not erroneous un- 
 less it tended to mislead the jury. 
 George v. Los Angeles Ry. Co., 
 126 Cal. 357, 46 L. R. A. 829, 58 
 Pac. 819. 
 
448 STREET SURFACE RAILROADS. 
 
 § 11. Who are not passengers. — The master is liable only 
 for the authorized acts of the servant — those done within the 
 scope or line of the servant's employment. The root of the 
 master's liability for the servant's act is the master's consent, 
 express or implied, and when the servant's acts are done 
 within the scope of his employment or for his master's bene- 
 fit, or in furtherance of his interest, although not strictly in 
 the line of his duty, yet in the course of his employment, 
 the master's assent is implied, and he is accordingly held 
 liable. But it is not within the scope of a motorman's em- 
 ployment to invite a boy to ride free, or to employ him to 
 assist in the performance of his duties and compensate him 
 by free transportation; and the boy does not become a pas- 
 senger if he accept the invitation. 5° A newsboy who jumps 
 on the street car without signaling it to stop, for the purpose 
 of selling papers and jumping ofif again, is not a passenger 
 although he intended to pay fare if the conductor asked 
 him.9' A carrier cannot refuse to accept a person as a pas- 
 
 90. Finley v. Hudson El. Ry. horses so that the boy fell and was 
 
 Co., 64 Hun (N. Y.), 373, 46 St. injured, it was held that an action 
 
 Rep. (N. Y.) 202, 19 N. Y. Supp. could be maintained for the in- 
 
 621; aflfd., 74 N. Y. 618; Buckley juries. Day v. Brooklyn City R. 
 
 V. N. Y. & H. R. Co., 43 N. Y. Co., 12 Hun (N. Y.), 435; affd.. 
 
 Super. Ct. (II J. & S.) 187. Where 76 N. Y. 593. 
 the defendant hired a driver for 91. Raming v. Met. St. Ry. Co., 
 
 one of its cars, put him in charge 157 Mo. 477, 57 S. W. 268; Pitcher 
 
 of it and of the team that drew it, v. People's St. R. Co. (Pa. C. P.), 
 
 committed to him the management 9 Lane. L. Rev. 276; Condran v. 
 
 of the same so far as the pro- Chicago, Milwaukee & St. P. R. 
 
 pulsion of the car was concerned, Co. (C. C. App., 8th C), 67 Fed. 
 
 and it was necessary in the per- 522, 28 L. R. A. 749, 32 U. S. 
 
 formance of that duty that he App. 182, 14 C. C. A. 506. One 
 
 should drink, and he called a boy accepting a free pass on a street 
 
 on to the car to give him water, railroad, with a printed condition 
 
 and after he had drank told him to that the company shall not be liable 
 
 step off, and while he was in the under any circumstances, whether 
 
 act of stepping off, whipped up his by negligence of agents or other- 
 
WHEN RELATION CEASES. ^ /\ (J 
 
 senger merely because he is blind ;'^ it may refuse to receive 
 an intoxicated person. It has authority to refuse to receive 
 as a passenger, or to expel one who so demeans himself as 
 to endanger the safety or interfere with the reasonable com- 
 fort and convenience of other passengers. '^ 
 
 § 12. When relation of carrier and passenger ceases. — 
 The relation to the carrier of a passenger alighting from a 
 street car ceases upon his succeeding in getting a footing 
 upon the street which he can maintain; but the carrier is 
 liable for injuries to a passenger from being run over by a 
 car upon a parallel track if guilty of negligence in respect 
 to providing a safe place to alight, where such passenger 
 fails to effect a landing upon the street and falls upon the 
 parallel track as a result of his attempt to land and not as a 
 sequence to a landing already accomplished. ^^ The relation 
 does not continue during the passage to the sidewalk after a 
 safe footing upon the street is once obtained,^^ unless there 
 
 wise, for injuries, is bound by that R. Co., lo U. S. App. 677, 54 Fed. 
 
 condition. Muldoon v. Seattle City 116, 4 C. C. A. 221. 
 
 R. Co., 7 Wash. 528, 35 Pac. 422, 94- Augusta R. Co. v. Glover, 92 
 
 22 L. R. A. 794. Ga. 132, 58 Am. & Eng. R. Cas. 
 
 92. Zackery v. Mobile & O. R. 269, 18 S. E. 406; Louisville R. Co. 
 Co., 74 Miss. 520, 36 L. R. A. 546, V. Park, 96 Ky. 580, 29 S. W. 455 ; 
 6 Am. & Eng. R. Cas. (N. S.) 267, Smith v. City & S. R. Co., 6 Am. 
 21 So. 246; Croon v. Chicago, M. Electl. Cas. 561, 29 Oreg. 539, 5. 
 & St. P. R. Co., 52 Minn. 296, 18 L. Am. & Eng. R. Cas. (N. S.) 163,. 
 R. A. 602. 46 Pac. 136; Brunswick & W. R. 
 
 93. Freedon v. N. Y. C. & H. R. Co. v. Moore, loi Ga. 684, 28 S.. 
 R. Co., 24 App. Div. (N. Y.) 306, E. 1000; Atlanta Consol. St. R.. 
 48 N. Y. Supp. 584; Pittsb., C. & Co. v. Bates, 103 Ga. 333, 30 S. E. 
 St. L. R. Co. V. Vandyne, 57 Ind. 41; South Covington & C. St. R.. 
 576, 26 Am. Rep.68; Vinton v. Mid- Co. v. Beatty (Ky.), 50 S. W. 239,, 
 dlesex R. Co., 11 Allen (Mass.), 20 Ky. L. Rep. 1845, 6 Am. Neg. 
 304, 87 Am. Dec. 714; Putnam v. Rep. 75. 
 
 Broadway & S. A. R. Co., 55 N. 95- Creamer v. West End St. R. 
 
 Y. 108; Meyer v. St. Louis, etc., Co., 4 Am. Electl. Cas. 476, 156- 
 29 
 
450 STREET SURFACE RAILROADS. 
 
 be obstructions upon the carrier's right of way, such as rails 
 left by it between the track and the sidewalk.'* It then 
 ceases when the obstructions are safely passed. The status 
 of the passenger does not necessarily terminate upon the 
 arrival of the car at his destination if he does not alight there- 
 from at that point.9^ 
 
 § 13. Duty of motoiman, etc., iu management of car. — 
 
 It has long been the settled law that where passengers are 
 getting on or alighting from cars propelled by steam, that 
 to suddenly start the car, thereby endangering the safety of 
 the person, without giving warning, is an act of negligence.'* 
 And this rule has been applied to street cars propelled by 
 horses.'' Stronger reasons exist for applying this rule to 
 cars propelled by electricity and to cable cars than to horse 
 cars, as the motor is more sudden and powerful in its opera- 
 tion.' It may involve a serious jerk in starting, and a jury 
 would be warranted in inferring want of ordinary care in its 
 operation from the fact that a woman passenger was thrown 
 to the floor and injured through the starting of the car before 
 
 Mass. 320^ i6 L. R. A. 490, 52 St. R. Co. v. Fuller, 9 O. C. D. 
 
 Am. & Eng. R. Cas. SS8, 31 N. E. 123, 17 Ohio C. C. 562. 
 
 391- Having alighted and obtained 98. Pfeffer v. Buflfalo Ry. Co., 4 
 
 a safe footing on the street, and Am. Electl. Cas. 439, 444, 4 Misc. 
 
 then having stepped upon the other Rep. (N. Y.) 465 ; Keating v. N. 
 
 track he was killed, and in the case Y. C. R. Co., 49 N. Y. 673. 
 
 cited he was held not to be a pas- 99. Poulin v. Broadway R. Co., 
 
 senger within the Massachusetts 61 N. Y. 621; Maher v. Central 
 
 ^t^tute. Park R. Co., 67 id. 55; Morrison v. 
 
 96. Wells v. Steinway, 18 App. Broadway R. Co., 130 id. 166; 
 
 Div. (N. Y.) 180, 45 N. Y. Supp. Akersloot v. Second Ave. R. Co., 
 
 ^^4- 131 id. 599, 30 N. E. 195, 43 St. 
 
 97- Rosenberg v. Third Ave. R. Rep. (N. Y.) 29a 
 
 Co., 47 App. Div. (N. Y.) 323, 6i I. Pfeffer v. Buflfalo Ry. Co., 4 
 
 N. Y. Supp. 1052; Toledo Consol. Am. Electl. Cas. 444, 4 Misc. Rep. 
 
 (N. Y.) 46s. 
 
MANAGEMENT OF CAR. 45I 
 
 she was able to reach a seat/ Whether it is negligence for 
 the motorman to start the car without a signal from the 
 conductor depends upon whether it would have been negli- 
 gent for the conductor to have then given the starting sig- 
 nal.3 The carrier must use great care, not only in carrying 
 his passenger, but in all preliminary matters, such as his re- 
 ception into the vehicle provided for his use. In New York, 
 carriers by street car are not required, as matter of law, to 
 provide a conductor to take charge of the car and assist the 
 passengers on and ofif from the platform. The fact how- 
 ever, 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. The 
 carrier must allow a passenger a reasonable time to get on 
 and off the car, and if, while the passenger is alighting, the 
 car is started suddenly and so as to produce a jerking motion, 
 it is not of itself an act of carelessness.'* If a passenger is 
 received on an open electric street car when it is so full he 
 cannot go inside or on the platform and stands on the side 
 step with the knowledge and assent of the conductor, he has 
 the right to assume that reasonable precautions will be taken 
 to protect him from dangers that can be readily seen and 
 guarded against. ^ But it should be remembered, too, that 
 
 2. Dochtermann v. Brooklyn (N. Y.) 692; affd., 121 N. Y. 661, 
 Heights R. Co., 164 N. Y. 586, 58 24 N. E. 1092; Lamline v. Houston, 
 N. E. 1087, affg. 32 App. Div. (N. etc., R. Co., 14 Daly (N. Y.), 144, 
 Y.) 13; Sheffer v. Louisville, H. & 6 St. Rep. (N. Y.) 248; Maverick 
 St. L. Ry. Co., 22 Ky. L. Rep. v. Eighth Ave. R. Co., 36 N. Y. 
 130S, 60 S. W. 403. 381. And see Bishop v. Union R. 
 
 3. Davey v. Greenfield & T. F. Co., 14 R. I. 214. 
 
 St. Ry. Co., 177 Mass. 106, s8 N. 5. Bumbear v. United Tract. Co., 
 
 E. 172. 198 Pa. St. 198, 47 Atl. g6i. In 
 
 4. Ganiafd v. Rochester City, the case cited the passenger was 
 etc., R. Co., so Hun (N. Y.), 22, standing on the side-step of an 
 24, 2 N. Y. Supp. 470, 18 St. Rep. open, overloaded summer street 
 
452 STREET SURFACE RAILROADS. 
 
 the passenger takes the risk of the ordinary and usual opera- 
 tion of the car, and not every slowing- down and starting 
 with a jerk can be claimed to be negligence. The mere fact 
 that a street car is moving along a crowded street at the rate 
 of about two miles an hour and is suddenly stopped, throwing 
 the plaintifif from her seat in the car to the floor, and that the 
 gripman in charge did not stop it, is insufficient to support 
 a finding of negligence in the operation of the car.* A pas- 
 senger seeking to alight, who signals to the conductor as 
 he approaches a street crossing, is not justified in assuming 
 that a subsequent reduction in the speed of the car is made 
 for his convenience in alighting, unless it appear that the 
 conductor had communicated the signal to the gripman, or 
 that the gripman had notice otherwise of the passenger's 
 desire to quit the car.^ It must appear that there was no 
 other reason for slackening speed and starting again, and 
 that the desire of the passenger to get on board or to alight 
 from the street car was communicated to the employee in 
 charge of the power, in order to make it appear that the 
 
 car, was struck by the hub of a 6. Hoffman v. Third Ave. R. Co., 
 
 wheel of an ice-wagon standing so 45 App. Div. (N. Y.) 586, 61 N. Y. 
 
 near the track as to project over Supp. 590. And see Hayes v. 
 
 the step. The motorman did not Forty-second St., etc., R. Co., 97 
 
 slacken his speed till the accident, N. Y. 239; Poulson v. Brooklyn 
 
 although he was able to see the po- City R. Co., 13 Misc. Rep. (N. 
 
 sition of the wagon when a block Y.) 387, 34 N. Y. Supp. 244, 68 
 
 from it, and its presence was some- St. Rep. (N. Y.) 123; Losee v. 
 
 thing to be expected at that time Watervliet Turnpike & R. Co., 
 
 of day, and there was hardly room 63 Hun (N. Y.), 404, 44 St. Rep. 
 
 for it to stand between the tracks (N. Y.) 343, 18 N. Y. Supp. 297; 
 
 and the curb. Held, the motor- Bernstein v. D. D., etc., R. Co., 
 
 man's negligence was for the jury. 72 Hun (N. Y.), 46, SS St. Rep. 
 
 And see O'Malley v. Met. St. R. (N. Y.) 341, 25 N. Y. Supp. 669. 
 
 Co., 3 App. Div. (N. Y.) 2S9i 73 7. Armstrong v. Met. St. R. Co., 
 
 St. Rep. (N. Y.) 613, 38 N. Y. 36 App. Div. (N. Y.) 525, 55 N. Y. 
 
 Supp. 456. Supp. 498; affd., 165 N. Y. 641, 5C> 
 
 N. E. II 18. 
 
MANAGEMENT OF CAR. 453 
 
 carrier was negligent in stopping and starting before the 
 passenger was safely aboard or had safely alighted.* If the 
 motoi'man or person in charge of the power of the car be 
 inexperienced and is intrusted with its operation, the com- 
 pany is liable for an injury to a passenger due to a sudden 
 jerk of the car, unless it clearly appear that the jerk was not 
 caused by his inexperience.' It is negligence for the motor- 
 man to let go of the brake after applying it without knowing 
 whether the dog is set so as to hold it;'° or if the brake is 
 suddenly and unnecessarily released to the injury of a pas- 
 senger standing on the platform." A gripman or motorman 
 is negligent toward a passenger if he fail to pay attention to 
 the ringing of a gong on a fire truck and the warnings of by- 
 standers upon approaching a street crossing toward which 
 the truck is rushing toward the track;" or, if he drive the car 
 at a rapid rate upon a temporary turnout while a passenger 
 is standing on the front platform ;'3 or over an uneven track 
 so that the car swayed from side to side, as a consequence 
 of which a passenger compelled to stand on the side step 
 
 8. Bachrach v. Nassau El. R. Second Ave. R. Co., i Misc. Rep. 
 Co., 35 App. Div. (N. Y.) 633, 54 (N. Y.) 100, 48 St. Rep. (N. Y.) 
 N. Y. Supp. 958. 676, 20 N. Y. Supp. 691 ; Murray 
 
 9. Etson V. Fort Wayne & B. v. Brooklyn City R. Co., 27 St. 
 I. R. Co., 114 Mich. 60s, 72 N. W. Rep. (N. Y.) 280, 7 N. Y. Supp. 
 598, 4 Det. Leg. N. 692. goo; Medler v. Atlanta Ave. R. Co., 
 
 10. Etson Case, supra; Gilmour 36 St. Rep. (N. Y.) 89, 12 N. Y. 
 V. Brooklyn Heights R. Co., 6 Supp. 930; Crooks v. Second Ave. 
 App. Div. (N. Y.) 117, 39 N. Y. R. Co., 49 St. Rep. (N. Y.) 376, 20 
 Supp. 417; Redfield v. Oakland N. Y. Supp. 873- 
 
 Consol. St. R. Co., no Cal. 277, 12. Parker v. Met. St. R. Co., 
 
 42 Pac. 822. 69 Mo. App. 54. 
 
 11. Bradley v. Second Ave. R. I3- Dillon v. Forty-second St., 
 Co., 34 App. Div. (N. Y.) 284, 54 etc., R. Co., 28 App. Div. (N. Y.) 
 N. Y. Supp. 256, 12 Am. & Eng. 404, 5i N. Y. Supp. 145. And see 
 R. Cas, (N. S.) 184. And see West Seelig v. Met. St. R. Co., 18 Misc. 
 Chicago St. R. Co. v. Johnson, 180 Rep. (N. Y.) 383, 4i N. Y. Supp. 
 III. 285, 54 N. E. 334; Lundy v. 656. 
 
454 STREET SURFACE RAILROADS. 
 
 was brought in contact with a trolley pole between the two 
 tracks, although such an accident had never occurred be- 
 fore.'* A boy, while in the act of mounting the steps of a 
 street car drawn by horses, was thrown down and injured 
 because the driver hurried the horses. In an action therefor, 
 it was held that the question of the carrier's negligence must 
 be submitted to the jury.'^ 
 
 § 14. Duty of employees in looking after safety and oomfort of 
 passengers. — The conductor of a street car must see to it that 
 a passenger boarding or alighting is in a place of safety be- 
 fore giving the signal to the driver or motorman to proceed ; 
 and this rule is particularly applicable where the cars are 
 open summer ones with seats running crosswise and a place 
 between the seats at the sides for the passengers to enter by 
 means of steps running the entire length of the car.'* He 
 is bound to know in starting the car suddenly and with full 
 force that no person is attempting to embark, or is in a posi- 
 tion of danger.'^ But the omission of the conductor to look 
 toward the front platform before giving the signal to start, 
 after stopping the car and permitting. a passenger to ahght, 
 is not negligence per se rendering the company liable for 
 
 14. Schmidt V. Coney Isl. B. R. Seventh Ave. R. Co., 130 N. Y. 
 
 Co., 26 App. Div. (N. Y.) 391, 49 166, 29 N. E. 105, 41 St. Rep. (N. 
 
 N. Y. Supp. 777. And see Quinn Y.) 248; McCurdy v. United Tract. 
 
 V. Shamokin & M. C. El. R. Co., Co., 15 Pa. Super. Ct. 29. 
 
 7 Pa. Super. Ct. 19. 17. Cohen v. West Chicago St. 
 
 IS- Maher v. Central Park, etc., R. Co. (C. C. App. 7th C), 60 Fed. 
 
 R. Co., 39 N. Y. Super. Ct. (17 J. 698; Kinkade v. Atlantic Ave. R. 
 
 & S.) ISS; affd., 67 N. Y. 52. Co., 9 Misc. Rep. (N. Y.) 273, 61 
 
 16. Akersloot v. Second Ave. R. St. Rep. (N. Y.) 323, 29 N. Y. Supp. 
 
 Co., 131 N. Y. 599, 30 N. E. 195, 747; Walters v. Phila. Tract. Co., 
 
 43 St. Rep. (N. Y.) 290; Schalscha 161 Pa. St. 36, 28 Atl. 941 ; Gold- 
 
 V. Third Ave. R. Co., 19 Misc. wasser v. Met. St. Ry. Co., 32 Misc. 
 
 Rep. (N. Y.) 141, 43 N. Y. Supp. Rep. (N. Y.) 6B2, 66 N. Y. Supp. 
 
 251; Morrison v. Broadway & 505. 
 
COMFORT OF PASSENGERS. 
 
 455 
 
 injuries to a boy thrown under the car as he was attempting 
 to mount the front platform, without having previously in- 
 dicated his desire to do so.'® The conductor cannot how- 
 ever delegate his authority to any other person, and if he 
 remain in a crowded car and start it on information received 
 from a passenger on the rear platform while another is at- 
 tempting to board the car and is injured, he is so negligent 
 that recovery may be had against the company.'' He must 
 take greater care in looking out for those incapable of caring 
 for themselves by reason of extreme age, youth, or illness.^" 
 He is bound to warn a passenger whom he actually sees in 
 a position or place of peril to life or limb, and contributory 
 negligence is not a legal excuse for the nonperformance of 
 such duty.^' But he has the right to assume that one who 
 
 i8. Pitcher v. People's St. R. 
 Co., 174 Pa. St. 402, 34 Atl. 567. 
 
 19. McCurdy v. United Tract. 
 Co., 15 Pa. Super. Ct. 29. 
 
 20. Wells V. New York, etc., R. 
 Co., 25 App. Div. (N. Y.) 365, 49 
 N. Y. Supp. 510; Boikens v. New 
 Orleans & C. R. Co., 48 La. Ann. 
 831, 19 So. yzT- The carrier is 
 liable for injuries to a child too 
 young to contribute thereto, occa- 
 sioned from his jumping off 'he. car 
 upon the approach of the con- 
 ductor to collect his fare in a man- 
 ner calculated to frighten him. 
 Sandford v. Hestonville, M. & F. 
 Pass. R. Co., 153 Pa. St. 300, 25 
 Atl. 833. 
 
 21'. South Covington & C. St. R. 
 Co. V. McCleave, 18 Ky. L. Rep. 
 1036, 38 S. W. loss; Baldwin v. 
 Fort Haven & W. R. Co., 68 Conn. 
 567, 37 Atl. 418; Leavenworth El. 
 R. Co. v. Cusick, 60 Kan. 590, 6 
 Am. Neg. Rep. 282, 57 Pac. 519; 
 
 Haluptzok V. Great Northern R. 
 Co., SS Minn. 446, 26 L. R. A. 739; 
 Booth V. Mister, 7 Car. & P. 66. 
 In an action for personal injuries 
 it appeared that the plaintiff was a 
 passenger upon one of defendant's 
 open cars; that when near a street 
 crossing the conductor asked him 
 where he wished to get off and he 
 replied, indicating a street a few 
 blocks above. Assuming the car 
 would stop on the south side of the 
 street, he got out on the running 
 board, and while in that position 
 signaled to stop the car. The con- 
 ductor pulled the bell cord, but the 
 motorman did not attempt to stop; 
 he increased the power and ran 
 over the crossing, the street being 
 occupied by another street railroad, 
 and in passing over the tracks of 
 the intersecting road plaintiff was 
 jolted from the running board and 
 injured. There was no evidence 
 that the crossing was made in an 
 
456 STREET SURFACE RAILROADS. 
 
 hails the car does not intend to board it while in motion, and 
 owes him no duty to warn him oflf, even if he believe he 
 intends to board the car before it has stopped and doubt his 
 ability to do so.^^ He is not required to exercise critical 
 skill or judgment while in the performance of his ordinary 
 duties in a crowded car, nor to observe closely the incapacity 
 or negligence of a particular passenger; he is held only to 
 that degree of discrimination which a reasonably prudent 
 and observing man would exercise under the circumstances.^' 
 He acts as the agent of the company in instructing a pas- 
 senger carried beyond his destination to walk back on the 
 track, and as matter of law is not free from negligence if he 
 make such direction and it requires the passenger to cross a 
 trestle.^'* In determining whether the employees operating 
 the car were negligent, a city ordinance requiring the car to 
 stop before crossing the track of any other company is ad- 
 missible in evidence where shortly before plaintifif was thrown 
 from the car it had crossed the track of another company 
 without stopping.^s When an emergency presents itself and 
 a person is under great excitement from the presence of an 
 impending peril, he may not act with that perfect judgment 
 that he would under other and different circumstances and 
 
 unusual manner, and therefore it i6 Wash. 465, 47 Pac. 890; Craig- 
 
 was held that the verdict was prop- head v. Brooklyn City R. Co., 123 
 
 erly directed in favor of the defend- N. Y. 391, 25 N. E. 387, 33 St. Rep. 
 
 ant; that plaintiff had no right to (N. Y.) 620. 
 
 assume that the car would stop on 23. Sandford v. Hestonville, M. 
 
 the south side of the street in going & F. Pass. R. Co., 136 Pa. St. 84, 
 
 north. Nies v. Brooklyn Heights 26 W. N. C. 401, 48 Phila. Leg. 
 
 R. Co., 68 App. Div. (N. Y.) 259. Int. 67, 20 Atl. 799. 
 
 22. Holohan v. Washington & 24. Camden, G. & W. R. Co. v. 
 
 G. R. Co. (D. C), r8 Wash. L. Rep. Young, 60 N. J. L. 193, 37 Atl. 
 
 751, 8 Mackey, 316; Oddy v. West 1013. 
 
 End St. Ry. Co. (Mass.), 59 N. E. 25. Macon Consol. St. R. Co. v. 
 
 1026; Brown v. Seattle City R. Co., Barnes (Ga.), 38 S. E. 756. 
 
BOARDING. 457 
 
 still not be negligent. Railways are not liable for a mistaken 
 exercise of judgment upon the part of their servants to act 
 with the utmost possible promptitude when the circumstances 
 are such as to afiford no time for deliberation. Where an 
 employee of a railroad company is confronted with a sudden 
 emergency, the failure on his part to exercise the best judg- 
 ment the case renders possible does not establish lack of care 
 and skill tipon his part which renders the company liable. 
 It is not responsible even for his error in judgment.^* 
 
 § 15. Boarding. — In large and populous cities, where cars 
 are constantly receiving and discharging passengers at cross- 
 ings, it is a well-known fact that many of such passengers 
 board cars and alight therefrom before the car has come to 
 a full stop, irrespective of the motor power, and that they 
 do so usually with perfect safety. It is well known, also, 
 that street-car companies tacitly invite many passengers to 
 board and alight from their cars by checking up to a slow 
 rate of speed and immediately starting up at a greater speed 
 when the passenger is safely aboard or has alighted. It 
 would be impossible to lay down a rule as to what particular 
 rate of speed would be sufficient notice to a passenger that, 
 if he attempted to get on or ofif, he would be held guilty of 
 
 26. Kantrowitz v. Met. St. R. a large truck drove up behind it, 
 
 Co., 63 App. Div. (N. Y.) 65, 69, the pole of which, because the 
 
 .71 N. Y. Supp. 394, citing Lewis horses slipped, was elevated to such 
 
 V. Long Isl. R. Co., 162 N. Y. 61, a degree that there was an apparent 
 
 56 N. E. 548; Wynn v. Central danger of its running into the car 
 
 Park, N. & E. River R. Co., 133 N. and injuring the passengers. 
 
 Y. S7S, 30 N. E. 721. It appeared Thereupon the conductor made a 
 
 in the Kantrowitz Case that Mrs. motion to start the car and in so 
 
 Kantrowitz was a passenger on de- doing struck Mrs. Kantrowitz and 
 
 Pendant's car, and while it was at a threw her against the body or the 
 
 •stand-still for the purpose of allow- dashboard of the car and injured 
 
 ing her and a companion to alight, her knee. 
 
458 STREET SURFACE RAILROADS. 
 
 contributory negligence. It would also be a great hardship 
 and unjust to lay down a general rule that a passenger at- 
 tempting to board any street car while in motion at all should 
 be held in contributory negligence. Every person is ex- 
 pected to know that the boarding of a moving train or car 
 is attended with the danger of a misstep or fall, and a fall 
 beside a moving car is liable to bring some part of the body 
 or limbs in danger of being crushed. It is the duty of those 
 having control and management of cars designed for traffic- 
 on the public streets to bring such cars to a full stop at such 
 places as are convenient and necessary for the purpose of 
 discharging and receiving passengers, and it is no less the 
 duty of passengers, in getting on or off such cars, to observe- 
 due precaution for their own safety. It cannot be said how- 
 ever that it is inconsistent with ordinary care and caution 
 for a person to board a street car while in motion. Whether 
 one has or has not exercised due care or caution in so doing 
 is to be determined by the particular circumstances in each 
 case, and is therefore a question of fact to be submitted t& 
 the jury.'''' It is not sufficient proof of the carrier's negli- 
 
 27. C. & P. St. Ry. Co. V. Meix- D. C. 37; N. Chicago St. R. Co. v.. 
 
 ner, 6 Am. Electl. Cas. 404, 409, Wiswell, 168 111. 613, 48 N. E. 407, 
 
 160 111. 320, 43 N. E. 823, 31 L. R. 9 Am. & Eng. R. Cas. (N. S.) 377; 
 
 A. 331; Omaha St. Ry. Co. v. Moylan v. Second Ave. R. Co., 128 
 
 Martin, 6 Am. Electl. Cas. 417, 48 N. Y. 583, 37 St. Rep. (N. Y.) 871,, 
 
 Nebr. 65; Corlin v. West End St. 27 N. E. 977; Central Pass. R. Co. 
 
 Ry. Co., 4 Am. Electl. Cas. 406, v. Rose, 15 Ky. Law Rep. 209, 22 S. 
 
 154 Mass. 197, 27 N. E. 1000; Hans- W. 745; Picard v. Ridge Ave. Pass, 
 
 berger v. Sedalia El. Ry. & L. Co., R. Co., 147 Pa. St. 195, i Pa. Adv. 
 
 82 Mo. App. 566; North Chicago Rep. 218, 23 Atl. 566; McDonough 
 
 St. R. Co. V. Kaspers, 85 III. App. v. Metropolitan R. Co., 137 Mass. 
 
 316; aflfd., S7 N. E. 849, 186 111. 246; 210; Eppendorf v. Brooklyn City & 
 
 Illinois C. R. Co. V. Cheek, 152 N. R. Co., 69 N. Y. 195; Slager v. 
 
 Ind. 663, 53 N. E. 641, I Rep. 975; Ridge Ave. Pass. Ry. Co., 119 Pa. 
 
 Brown v. Washington & G. R. Co., St. 70. Trying to board a street 
 
 25 Wash. Law Rep. 404, n App. car in rapid motion is negligence. 
 
BOARDING. 
 
 459 
 
 gence merely to show that one attempting to board a street 
 railroad car while barely moving as it reached the street 
 crossing was thrown to the ground and injured.""* If how- 
 ever the car was started forward with a sudden jerk while 
 the passenger was in the act of boarding, such added circum- 
 stance would be sufficient to take the case to the jury.^^ If 
 the passenger be in good physical condition and unincum- 
 bered he may, without negligence, attempt to board a slowly- 
 moving car under all ordinary circumstances, and it will be 
 
 Chicago City R. Co. v. Delcourt, 35 
 111. App. 43a It is not negligence 
 to stand upon the sidewalk to await 
 the car's coming, although at that 
 point the tracks of the company- 
 cross the walk to reach the com- 
 pany's barns, and there is a pos- 
 sibility that the car in going to or 
 from the barn will pass over the 
 place where the intending passen- 
 ger is standing. O'Toole v. Cen- 
 tral Park, N. & E. River R. Co., 
 S8 Hun (N. Y.), 609. 
 
 28. Weber v. New Orleans C. R. 
 Co., 104 La. 367, 28 So. 892. 
 
 Such an one is guilty of contribu- 
 tory negligence as matter of law, 
 when it does not appear that the 
 speed of the car had been reduced 
 in response to his signals. Reidy 
 V. Met. St. R. Co., 27 Misc. Rep. (N. 
 Y.) 527, 58 N. Y. Supp. 326. And 
 before the employees in charge 
 of an electric car can be claimed to 
 be negligent toward an intending 
 passenger, they must either be fairly 
 apprised that the latter desires to 
 board the car, or the situation must 
 be such that the passenger may 
 naturally be expected to get upon 
 the car at that time. Bachrach v. 
 Nassau El. R. Co., 35 App. Div. 
 (N. Y.) 633, 54 N. Y. Supp. 9S8. 
 
 The negligence of the passenger 
 however will not prevent his recov- 
 ery for injuries due to the negli- 
 gence of the company if his own 
 negligence in nowise contributed 
 to those injuries. Eraser v. Lon- 
 don St. R. Co., 29 Ont. Rep. 411. 
 And see Woodward v. West Side 
 St. R. Co., 71 Wis. '625, 38 N. W. 
 347. 
 
 Where the gravamen of the ac- 
 tion is that while plaintifif was at- 
 tempting to board the street car 
 which had stopped to receive him, 
 it was so suddenly started as to 
 throw him down, and there is con- 
 flict of evidence as to whether the 
 car had stopped, it is error for the 
 court to refuse to charge that if it 
 had not stopped and plaintiff 
 was injured while attempting to 
 board it while moving, the verdict 
 must be for the defendant. Ander- 
 son V. Third Ave. R. Co., 36 App. 
 Div. (N. Y.) 309, 55 N. Y. Supp. 
 (89 St. Rep.) 290. 
 
 29. Sahlgaard v. St. Paul City R. 
 Co., 48 Minn. 232, 51 N. W. iil; 
 Central Pass. R. Co. v. Rose, 4, 
 Am. Electl. Cas. 429, 15 Ky. Law 
 Rep. 209, 22 S. W. 745; People's 
 Pass. Ry. Co. v. Greene, 56 Md. 84.. 
 
.460 
 
 STREET SURFACE RAILROADS. 
 
 even a question for the jury if in boarding he was neg-ligent 
 in not holding fast to the handrail provided for the purpose 
 of aiding him to board.^" But it has been held to be negli- 
 gence, as matter of law, for a person, even in good physical 
 condition and unincumbered, to attempt to get on the front 
 platform of a car moving at its ordinary rate of speed of seven 
 or eight miles an hour.^' But one with packages in both 
 hands, as an umbrella in one hand and a handkerchief in the 
 other, may attempt to board a slowly-moving electric street 
 car without being negligent as matter of law.^^ The street 
 
 30. Martin v. Secopd Ave. R. 
 ■Co., 3 App. Div. (N. Y.) 448, 38 N. 
 Y. Supp. 220, 73 St. Rep. (N. Y.) 
 714; Morrison v. Broadway & S. A. 
 R. Co., 130 N. Y. 166, 41 St. Rep. 
 (N. Y.) 248, 29 N. E. IDS. 
 
 31. Woo Dan v. Seattle El. R. 
 P. Co., 5 Wash. 466, s8 Am. & Eng. 
 R. Cas. 19s, 32 Pac. 103; Pfeffer 
 V. Buffalo R. Co., 4 Am. Electl. 
 Cas. 444, 24 N. Y. Supp. 490, 
 4 Misc. Rep. (N. Y.) 465, 54 St. 
 Rep. (N. Y.) 342; affd., 144 N. 
 Y. 636, 64 St. Rep. (N. Y.) 868. 
 Where however provision is made 
 to get on or off the front or rear 
 platform it may not be negligence 
 to board by the front platform. 
 Peterson v. D., L. & W. R. Co. 
 (Pa. Com. Pleas), 9 Kulp, 552. 
 A boy seven years of age, injured 
 in attempting to get upon the front 
 platform of a street railroad car 
 while starting, where no notice was 
 given to the employees in charge 
 of the car and they had no knowl- 
 edge of his intention and attempt 
 to become a passenger, cannot re- 
 cover against the company. Al- 
 though there was no conductor on 
 the car, the driver is not bound to 
 
 look for passengers while engaged 
 in attending to his horses. Pitcher 
 v. People's St. R. Co., 154 Pa. St. 
 560, 32 W. N. C. 243, 26 Atl. 559. 
 A person attempting to board a 
 trolley car in motion by way of the 
 front platform is bound to exercise 
 more care than he would had he 
 waited to board by the rear step or 
 for the car to stop. The fact that 
 there was a jerk or sudden move- 
 ment of the car when plaintiff 
 jumped on the step did not neces- 
 sarily establish negligence of the 
 motorman. It might have been the 
 natural result of applying the brake 
 to stop the car. Paulson v. Brook- 
 lyn City R. Co., 5 Am. Electl. Cas. 
 419, 13 Misc. Rep. (N. Y.) 387. 
 
 32. White v. Atlanta Consol. R. 
 Co., 92 Ga. 494, 17 S. E. 672. It is 
 different however if the intending 
 passenger carried a package on his 
 shoulder which obstructed his view 
 so that he fell into an excavation 
 while attempting to reach the 
 slowly-moving car. Hanson v. 
 Third Ave. R. Co., 27 Misc. Rep. 
 (N. Y.) 524, 58 N. Y. Supp. 282. 
 And see Readington v. Philadel- 
 phia Tract. Co., 132 Pa. St. 154. 
 
BOARDING. 461 
 
 railroad company owes a duty to the public to stop at its 
 regular crossings on a seasonable signal to receive those 
 desiring passage.33 It is the duty of a conductor, before 
 giving the signal to the employee controlling the power to 
 start after the car has stopped to take on passengers, to look 
 around and see that all passengers to take passage at that 
 place are safely on board; and failure so to do is not excused, 
 by the fact that he does not see an intending passenger. 
 The car must wait a reasonable time; and a passenger, dili- 
 gent in attempting to get upon it while it is stopped to re- 
 ceive passengers, although lacking in dexterity, may recover 
 for injuries sustained from the starting of the car while he 
 is attempting to board it.^* If the car be started when the 
 employees knew, or by the exercise of ordinary care could 
 have known, that the passenger was attempting to board, 
 the company may be made liable for injuries sustained by 
 the intending passenger.^s He has the right to rely on the 
 
 33. Jackson El. R. L. & P. Co. Rep. 541, 52 N. W. 393; Myers v.. 
 V. Lowry (Miss.), 30 So. 634. Long Isl. R. Co., 10 St. Rep. (N. 
 
 34. Dudley v. Front St. Cable R. Y.) 430; affd., 112 N. Y. 681; Black 
 Co. (C. C. D. Wash.), 73 Fed. 128; v. Brooklyn City R. Co., 108 id. 
 Shwart V. Consol. Tract. Co., 15 640, 15 N. E. 389; Kinkade v- 
 Pa. Super. Ct. 26; Post v. Hartford Atlantic Ave. R. Co., 9 Misc. 
 St. Ry. Co., 72 Conn. 362, 44 Atl. Rep. (N. Y.) 273, 61 St. Rep. 
 547; Baltimore City Pass. Ry. Co. (N. Y.) 323, 29 N. Y. Supp. 
 V. Baer, 90 Md. 97, 44 Atl. 992; 747; affd., 149 N. Y. 615. It is a 
 Barth v. Kansas City Elev. R. Co., question for the jury as to the neg- 
 142 Mo. 535, 10 Am. & Eng. R. ligence of the carrier, although the 
 Cas. (N. S.) 281, 44 S. W. 778; De conductor's arm is raised as if to 
 Rozas V. Met. St. R. Co., 13 App. take hold of the bell rope while 
 Div. (N. Y.) 296, 43 N. Y. Supp. the passenger is attempting to get 
 27; Anacosta & P. River R. Co. on and the time for boarding the 
 V. Klein, 8 App. D. C. 75, 24 Wash. car has passed. McQuade v. Man- 
 L. Rep. 117; Meriwether v. Kan- hattan Ry. Co., 53 N. Y. Super Ct. 
 sas City Cable R. Co., 45 Mo. App. (21 J. & S.) 91. And see Packard 
 528; Steeg V. St. Paul City R. Co. v. Toledo Tract. Co., 22 Ohio C. 
 (Minn.), 52 Am. & Eng. R. Cas. C. 578. 
 
 550, 16 L. R. A. 379, 20 Wash. L. 35- Worthington v. Lindell R.. 
 
462 
 
 STREET SURFACE RAILROADS. 
 
 due care, of the company, and is not bound to anticipate 
 that the car will start suddenly and throw him upon the 
 ground or against poles or other obstruction in close prox- 
 imity to the track.3^ Evidence that the conductor knew 
 
 Co., •J2 Mo. App. 162; West Chi- 
 cago St. R. Co. V. James, 69 III. 
 App. 609; Sexton v. Met. St. R. 
 Co., 40 App. Div. (N. Y.) 26, S7 
 N. Y. Supp. (91 St. Rep.) 577, 6 
 Am. Neg. Rep. 135. 
 
 Attempting to get on a moving 
 street car, plaintiff seized the hand- 
 rail and placed one foot on the 
 step; with the other on the ground, 
 he was dragged along until he 
 came in contact with some rail- 
 road ties near the track in the mid- 
 dle of an intersecting street where 
 he lost his hold and was severely- 
 injured. Whether the speed of the 
 car was increased after plaintiff 
 took hold was a question of fact. 
 No proof was offered that the 
 motorman in anyway indicated that 
 he meant to stop at the upper 
 corner of the street where plaintiff 
 stood and attempted to get on the 
 car, and he stated that he did not 
 notice any one there. It was held 
 that plaintiff was not entitlfed to re- 
 cover, since being in full view of 
 the ties, he assumed all risk of in- 
 jury from them when he attempted 
 to get on the moving car. Schmidt 
 v. North Jersey St. Ry. Co. (N. J. 
 Sup.), 49 Atl. 438. 
 
 36. Citizens' St. Ry. Co. v. Merl 
 (Ind. App.), 59 N. E. 491. But 
 one who has signaled the con- 
 ductor to stop as the car is nearing 
 a street crossing is not justified in 
 assuming that a sudden reduction 
 in speed is made for his conven- 
 ience in the absence of knowledge 
 
 that the conductor has communi- 
 cated his signal to the gripman. 
 Armstrong v. Met. St. R. Co., 36 
 App. Div. (N. Y.) S2S, 55 N. Y. 
 Supp. (89 St. Rep.) 498; affd., 
 16s N. Y. 641, 59 N. E. 1 1 18. 
 And where his injuries are sus- 
 tained while in the act of boarding, 
 evidence that after the car had 
 stopped it moved slowly backward 
 causing him to fall, is sufificient to 
 justify a finding that his injuries 
 were caused by defendant's negli- 
 gence, where there was also evi- 
 dence that he made a misstep in 
 trying to board the car, and that 
 the backward movement, if any, 
 was insufficient to cause him to fall. 
 Schmeltzer v. St. Paul City Ry. 
 Co. (Minn.), 82 N. W. 1092. A 
 verdict for plaintiff is not against 
 the weight jf evidence where the is- 
 sue was w.iether defendant's street 
 car was in motion when plaintiff 
 attempted to board it. Plaintiff tes- 
 tified that it was not; his testimony 
 was contradicted by one of the con- 
 ductors and a passenger and by a 
 statement signed by plaintiff made 
 to a person employed by defendant 
 to prepare the defense in its acci- 
 dent cases, who testified that he 
 wrote the statement at plaintiff's 
 dictation and read it to him before 
 he signed it; plaintiff testified how- 
 ever that he did not know what was 
 put in the statement. Pohle v. Sec- 
 ond Ave. R. Co., 13 App. Div. (N. 
 Y.) 393. 42 N. Y. Supp. 1092; affd., 
 161 N. Y. 666, 57 N. E. 1122. And 
 
BOARDING. 463 
 
 that a truck was standing close to the track and that several 
 persons were attempting to get on the car and that he started 
 the car before plaintiff was able to get on the platform by 
 reason of other persons being ahead of him, and that plain- 
 tiff was injured thereby, is sufficient to sustain a judgment 
 against the carrier.^^ The fact that a signal for starting the 
 car, causing one who is attempting to get on to be thrown 
 down and injured, was given by an unauthorized person, will 
 not relieve the company from liability, if the conductor by 
 due diligence could have prevented the moving of the car 
 and avoided the injury by countermanding the signal, or 
 otherwise, although he did not know that any one was at- 
 tempting to get on the car.^* But it is not as matter of law 
 negligence for the driver of a street car to fail to bring the 
 car to a full stop to allow one, who has given him a signal, 
 to get on board.39 If the intending passenger boards the 
 car while in motion, unless its motion has been stopped suf- 
 
 see Sweeny v. Union Ry. Co., 64 McCurdy v. United Tract. Co., 15 
 
 N. Y. Supp. 453; Leary v. Railroad Pa. Super. Ct. 29. 
 
 Co., 173 Mass. 373. 39- Finkeldey v. Omnibus Cable 
 
 ZT. Goldwasser v. Met. St. R. Co., 114 Cal. 28, S Am. & Eng. R. 
 
 Co., 66 N. Y. Supp. S05, Z2 Misc. Cas. (N. S.) 393, 4S Pac. 996; Moy- 
 
 Rep. (N. Y.) 682. And see Call Ian v. Second Ave. R. Co., 128 N. 
 
 V. Portsmouth, K. & Y. St. Ry. Y. 583, 37 St. Rep. (N. Y.) 871, 27 
 
 (N. H.), 45 Atl. 405; Dean v. N. K 977- 
 
 Third Ave. R. Co., 34 App. Div. A person seeking to become a 
 
 (N. Y.) 220, 54 N. Y. Supp. 490, 5 passenger on a street car has the 
 
 Am. Neg. Rep. 226; Christie v. right to insist that it shall come to 
 
 Galveston City Ry. Co. (Tex. Civ. a stop to enable him to do so ; but 
 
 App.), 2 Am. Neg. Rep. 260, 39 S. if the car does not stop, the carrier 
 
 W. 638; Paris v. Brooklyn City & is not at fault if he attempts to 
 
 N. R. Co., 46 App. Div. (N. Y.) board while the car is in motion, 
 
 231, 61 N. Y. Supp. (95 St. Rep.) unless its speed is so diminished 
 
 670; Wallace v. Third Ave. R. Co., as to amount to an invitation to 
 
 36 App. Div. (N. Y.) 57, 55 N. Y. him to get upon it and th^n is sub- 
 
 Supp. (89 St. Rep.) 132. sequently accelerated without no- 
 
 38. North Chicago St. R. Co. v. tice while he is in the act of get- 
 Cook, 145 111. 551, 33 N. E. 9S8; ting on; where however it is al- 
 
464 STREET SURFACE RAILROADS. 
 
 ficient to imply an invitation, the company can only be made 
 liable for an act of gross negligence implying a willful or 
 wanton injury.'*" But negligence, if there be any, in board- 
 ing an overcrowded car, will not prevent recovery for an 
 injury to which the overcrowded condition of the car did 
 not contribute.*' And if the conductor attempt to assist 
 the intending passenger to board the car while in motion 
 and releases him at his own request, the company cannot be 
 held for negligence if he fall and be run over by the car.'*^ 
 Where it appears that a boy while in the act of mounting 
 the steps of a street car drawn by horses is thrown by the 
 act of the driver in hurrying the horses, and the boy is thereby 
 injured, there is sufficient evidence of negligence on the part 
 of the carrier to submit the case to the jury.'*^ 
 
 § 16. Carrying packages, live animals, and dai^erous weapons 
 in the cars. — A conductor is justified in removing from his 
 car a passenger who, in defiance of a rule of the company 
 against the carrying of dogs, has a dog with him which he 
 refuses to remove on a request so to do by the conductor.''* 
 And in an action against the carrier for the ejection, or the 
 
 leged as the foundation of the ac- ing a moving car does not relieve 
 
 tion that the car having stopped the company from responsibiUty 
 
 was started before he was able to for injuries arising from the negli- 
 
 get upon it, the fact of the stopping gent act of the employee in push- 
 
 of the car is essential to his case. ing him off the step. Sharer v. 
 
 Savage v. Third Ave. R. Co., 29 Paxson, 171 Pa. St. 26, 2 Am. & 
 
 App. Div. (N. Y.) 556, 59 N. Y. Eng. R. Cas. (N. S.) 429, 33 Atl. 
 
 Supp. 1066. 120, zy W. N. C. 319. 
 
 40. Basch V. North Chicago St. 43. Maher v. Central Park, N. & 
 R. Co., 40 111. App. 583. E. River R. Co., 39 N. Y. Super. 
 
 41. West Chicago St. R. Co. v. Ct. (17 J. & S.) 155; af!d., 67 N. 
 Marks, 82 III. App. 185. Y. 52. 
 
 42. Baltimore Tract. Co. v. State, 44. Butler v. Steinway Ry. Co., 
 Ringgold, 78 Md. 409, 58 Am. & 87 Hun (N. Y.), 10; Gregory v. 
 Eng. R. Cas. 200, 28 Atl. 397. Neg- Chicago & N. W. R. Co., 100 Iowa, 
 ligence of the passenger in board- 345, 69 N. W. 532. 
 
CARRYING PACKAGES. 
 
 465 
 
 refusal to accept a passenger carrying in his arms or leading 
 a live animal, it is error to submit to the jury the reasonable- 
 ness of a regulation of the company forbidding the carrying 
 of live animals in the cars."*' It is error also to submit to 
 the jury the question of the reasonableness of a rule that 
 passengers must not be permitted to take into the cars pack- 
 ages or goods that are cumbersome, or otherwise, such as 
 barrels, boxes, trunks, gas pipe, lumber, and panes of glass."* 
 But where the rule of the company imposes an extra charge 
 for each package " too large to be carried on the lap of the 
 passenger without incommoding others," while the rule may 
 be assumed to be a reasonable one, it is yet for the jury to 
 determine whether a particular package comes within the 
 intent and meaning of the rule.''^ A street railroad com- 
 
 45. As for example, a live goat. 
 Daniel v. North Jersey St. Ry. Co. 
 (N. J.), 46 Atl. 625. 
 
 ■46. Dowd V. Albany Ry., 47 App. 
 Div. (N. Y.) 202, 62 N. Y. Supp. 
 (96 St. Rep.) 179. In the case 
 cited the passenger carried a valise 
 and two rifles with bayonets at- 
 tached. The court submitted to 
 the jury the question whether or 
 not the guns carried in the manner 
 in which they were carried were 
 dangerous, and whether the rule 
 itself was reasonable. Held error, 
 the court saying: "The plaintiff, 
 incumbered with the valise, car- 
 ried these two rifles with bay- 
 onets attached in his hands, in the 
 closed street car, in which there 
 were a number of passengers, and 
 passengers getting on and ofif at 
 every crossing. The two guns, 
 rigged and carried in that way by 
 one man with a valise, also, were 
 
 30 
 
 so obviously dangerous to others 
 in the same car that it needed only 
 the declaration of the conductor in 
 charge to exclude the passenger 
 proposing to ride so incumbered; 
 and his declaration to that effect 
 should have been conclusive, and 
 the court should have instructed 
 the jury that the only question for 
 them to consider was whether un- 
 necessary force was used in putting 
 the plaintiff off the car, and if so, 
 what was the damage suffered be- 
 cause of such unnecessary force." 
 47. Morris v. Atlantic Ave. R. 
 Co., 116 N. Y. S52, 22 N. E. 1097, 
 27 St. Rep. (N. Y.) 667, revg. 5 
 id. 874. In the case cited — an 
 action for assault and battery oc- 
 casioned in being ejected from 
 a car — it appeared the plain- 
 tiff carried two packages of picture 
 frames about two feet in length 
 and twenty inches wide and refused 
 
466 
 
 STREET SURFACE RAILROADS. 
 
 pany cannot be charged with negligence because it permits 
 passengers to carry small packages with them into the car 
 and place them on the floor between or near their feet, unless 
 
 to pay an additional charge there- 
 for, or to leave the car. The court 
 said: 
 
 " In respect to the other proposi- 
 tion, the court was requested to 
 hold, as matter of law, and charge 
 the jury, that the bundles were too 
 large to be carried on the lap of 
 the passenger without incommod- 
 ing others. Exception was taken 
 to the refusal to so charge. And 
 the court was further requested, 
 and declined, to charge that ' the 
 question as to whether the pack- 
 ages were too large was not a mat- 
 ter to be decided by the plaintiff, 
 but is to be decided by the defend- 
 ant, and if its agents in the exer- 
 cise of fair judgment, and in good 
 faith, determine that a package is 
 too large and require,s pay, the 
 passenger must comply with a re- 
 quest to pay ori leave the car,' and 
 exception was taken to such re- 
 fusal. For the successful operation 
 of the road, and for the accommo- 
 dation and comfort of its passen- 
 gers, certain regulations are evi- 
 dently essential. The one in ques- 
 tion was reasonable, but that por- 
 tion of it relating to the present 
 case is indefinite in so far that it 
 does not in terms furnish all the 
 information necessary to its exe- 
 cution, which is dependent upon 
 the fact that the package is too 
 large to be carried in the lap of 
 the passenger without incommod- 
 ing others. A package may be 
 such and so large as to require the 
 conclusion that it is' within the rule 
 
 which entitles the company to de- 
 mand the increased fare, and in 
 such case the court might, as mat- 
 ter of law, so determine. When it 
 does not necessarily so appear, the 
 question arising, in that respact, be- 
 comes one of fact to be otherwise 
 disposed of. In the present case 
 the court could not hold that the 
 package was within the meaning of 
 those referred to in the regulation. 
 The right of the plaintiff was de- 
 pendent upon the application of the 
 regulation to his package, and not 
 upon the judgment of the conduc- 
 tor. The ability of the latter to 
 construe the regulation, and to de- 
 termine whether the package jus- 
 tified the demand of more fare, 
 may have been greater than that 
 of the plaintiff, but their right to 
 exercise their judgments in that re- 
 spect, subject to the consequences, 
 was not unequal. The question 
 was for the jury to determine 
 whether the extent of the plaintiff's 
 package was such as to be em- 
 braced within the meaning of the 
 regulation. The question is one of 
 the weight of evidence, which was 
 solely for the consideration of the 
 court below. If the execution of 
 this portion of the regulation is 
 liable to be attended with embar- 
 rassment, it is because its terms, 
 descriptive of the packages re- 
 ferred to, are not sufficiently defi- 
 nite to furnish a certain guide to 
 the company's servants, who are 
 required to execute it." 
 
CROWDING CARS. 467 
 
 they become obviously an obstruction to passeng-ers in going 
 to and from their seats. It is quite usual and customary for 
 passengers to carry with them hand packages and baskets 
 and umbrellas and other small parcels, and no rule for their 
 exclusion has ever been adopted by any carrier company. 
 Indeed, it may well be doubted that the carrier could enact 
 such a rule; It might become the duty of conductors to 
 cause the removal of even a small package upon complaint 
 of inconvenience, or nuisance, or obstruction to other pas- 
 sengers, but no rule can be laid down for his guidance in 
 this particular, except that he is bound to do what a reason- 
 able man would do under the circumstances.** 
 
 § 17. Crowding cars. — A carrier of passengers must exer- 
 cise the care of a very cautious person surrounded by the 
 same circumstances.'*' The employees of a street railway 
 •company therefore are bound to exercise greater care wdiere 
 a passenger is forced to ride upon the step or platform, be- 
 cause he cannot find a seat in the car.'" Where the street 
 car company undertakes to carry more passengers than can 
 sit or stand within the street car, crowding both platforms 
 and steps to their utmost capacity, the question of the car- 
 rier's negligence in an action for injuries sustained by a per- 
 son forced ofif the front platform by the crowd while attempt- 
 ing to ride there, after having given up his seat to another, 
 is for the jury.^' It can never be said that it is negligence, 
 
 48. Van Winkle v. Brooklyn sa Kinkade v. Atl. Ave. R. Co., 
 City R. Co., 46 Hun (N. Y.), 565. 9 Misc. Rep. (N. Y.) 273, 61 St. 
 And see Stimson v. Milwaukee, Rep. (N. Y.) 323, 29 N. Y. Supp. 
 etc., Ry. Co., 75 Wis. 381, 44 N. 747; Saltzman v. Brooklyn City R. 
 W. 748. Co., 73 Hun (X. Y.), 567, S6 St. 
 
 49. Bosqui V. Sutro R. Co., 131 Rep. (N. Y.) 220, 26 N. Y. Supp. 
 Cal. 390, 63 Pac. 682; Taylor v. Pa. 311; affd., 148 N. Y. 745. 
 
 Co. (C. C. N. D. Ohio), 50 Fed. 51. Lehr v. S. & H. P. R. Co., 
 
 ■,7SS- 118 N. Y. SS6, 30 St. Rep. (N. 
 
468 
 
 STREET SURFACE RAILROADS. 
 
 as matter of law, on the part of a street railroad company to 
 permit a car to become crowded with passengers.'^ An un- 
 usual, extraordinary demand for transportation of passengers 
 may occur, and the carrier should be held only to such dili- 
 gence as is reasonable under the circumstances.'^ It must 
 however take care, under such circumstances, that the pas- 
 senger is not exposed to unnecessary danger, either by the 
 speed at which the car is permitted to round the short curves 
 or from contact with objects near the track.'* If by due 
 
 Y.) I, 23 N. E. 88g; Neslie v. 
 Second & Third Sts. Pass. Ry. 
 Co. (1886), 113 Pa. St. 300, 6 
 Atl. 72; Chicago City Ry. Co. 
 V. Young, 62 III. 238; Highland 
 Ave. & Belt R. Co. v. Donovan, 
 94 Ala. 299, 10 So. 139. So, where 
 the motorman of an open car, 
 which was so crowded that passen- 
 gers were standing upon the run- 
 ning board, before stopping to re- 
 ceive another passenger, signaled 
 a van in front of it to leave the 
 track, which it did, stopping in such 
 a situation as to bring its rear end 
 within two feet of the track, it was 
 held that he was chargeable with 
 notice that the space left between 
 the van and the car was insufficient 
 to allow persons standing upon the 
 running board to escape injury, 
 and it was the duty of those run- 
 ning the car to exercise great care 
 to see that injury was not inflicted 
 upon such passengers. Hender- 
 son v. Nassau El. R. Co., 46 App. 
 Div. (N. Y.) 280, 61 N. Y. Supp. 
 (95 St. Rep.) 690. And see Reem 
 v. St. Paul City Ry. Co. (Minn.), 
 80 N. W. 638; Railway Co. v. 
 Higgs, 38 Kan. 375, 16 Pac. 667; 
 Hansen v. New Jersey St. Ry. Co. 
 (N. J.), 46 Atl. 718; Graham v. 
 
 Manhattan R. Co., 149 N. Y. 336, 
 43 N. E. 917. 
 
 52. Chicago City R. Co. v. Con- 
 sodine, 50 III. App. 471. 
 
 53- Chicago & A. R. Co. v. 
 Fisher, 31 111. App. 36. But it has 
 been held that the carrier of pas- 
 sengers is chargeable with negli- 
 gence in permitting passengers to 
 crowd upon the platform of a car 
 and thereby push a passenger's leg 
 between two cars, where it has 
 control over the avenues of access 
 to the cars and can control the 
 number of passengers boarding the 
 same. Dawson v. N. Y. & B. 
 Bridge, 31 App. Div. (N. Y.) 537, 
 52 N. Y. Supp. (86 St. Rep.) 133- 
 And see Muhlhause v. Monon. St. 
 Ry. Co. (Pa.), so Atl. 94a; Indian- 
 apolis St. Ry. Co. V. Robinson 
 (Ind.), 61 N. E. 936. 
 
 54. Schaefer v. Union R. Co., 29 
 App. Div. (N. Y.) 261, SI N. Y. 
 Supp. 431; Wood v. Brooklyn City 
 R. Co., 6 Am. Electl. Cas. 429, 5 
 App. Div. (N. Y.) 492, 38 N. Y. 
 Supp. 1077; Lucas V. Met. St. Ry. 
 Co., s6 App. Div. (N. Y.) 405, 67 
 N. Y. Supp. (loi St. Rep.) 833; 
 Holloway v. Pasadena & P. Ry. 
 Co., 130 Cal. 177, 62 Pac. 478. 
 Evidence that the passenger on a 
 
CROWDING CARS. 
 
 469 
 
 care the passenger himself might have avoided the dangerous 
 position in which he was standing, and if the position would 
 appear dangerous to a person in the exercise of ordinary 
 care, the jury may find that the passenger is contributorily 
 negligent." If, without the knowledge of the conductor, 
 he ride upon the bumper in the rear of and outside the trolley 
 car, because the car is crowded so that he cannot even find 
 standing room on the platform, and is struck and injured by 
 a car coming up behind, the place being so obviously dan- 
 gerous and exposed to the very danger which caused the 
 injury, he is guilty of negligence as matter of law.^^ So, if 
 
 crowded car, and therefore stand- 
 ing on the running board, was 
 thrown off by a sudden, violent 
 jerk of the car, justifies a finding 
 that the fall was due to negligence 
 in the operation of the v car. 
 Brainard v. Nassau El. R. Co., 44 
 App. Div. (N. Y.) 613, 61 N. Y. 
 Supp. 74. But where it appeared 
 only that he was holding on to one 
 of the stanchions or upright parts 
 of the car, having an umbrella in 
 the hand by which he was holding 
 fast and lost his hold while the 
 car was going at a high rate of 
 speed, and fell into the street, and 
 he testified that there was a rock- 
 ing, jolting, or wagging motion, 
 and that his hand slipped from the 
 upright, but there was no evidence 
 showing why it slipped; and there 
 was no sudden or unexpected mo- 
 tion at the time either of the car 
 or of the passengers; it was held 
 that since the proximate cause of 
 the injury was the slipping of his 
 hand from the stanchion, which 
 might have been caused by the 
 fact that the same was wet or be- 
 cause plaintiff was exhausted in his 
 
 efforts to hold on, or by a con- 
 junction of causes, there was no 
 proof that the injury was due to 
 the defendant's negligence/ and 
 hence a recovery could not be had. 
 Johnson v. Brooklyn H. R. Co., 63 
 App. Div. (N. Y.) 374, 71 N. Y. 
 Supp. 568. 
 
 55. Asbury v. Charlotte Ry., L. & 
 P. Co., 125 N. C. s68, 34 S. E. 
 654; Pomaski v. Grant, 119 Mich. 
 67s; Sweeney v. Railway Co., 150 
 Mo. 38s; International & G. N. R. 
 Co. v. Williams, 20 Tex. Civ. App. 
 587; Graham v. McNeill, 20 Wash. 
 466, 55 Pac. 631, 43 L. R. A. 300, S 
 Am. Neg. Rep. 484, 12 Am. & Eng. 
 R. Cas. (N. S.) 149; Harden v. 
 Railway Co., 102 Wis. 213; Chesa- 
 peake & O. Ry. v. Langs, Admr., 
 100 Ky. 221. 
 
 56. Bard v. Pa. Tract. Co., 6 
 Am. Electl. Cas. 444, 176 Pa. St. 
 97, 34 Atl. 953; Nieboer v. De- 
 troit El. Ry. (Mich.), 87 N. W. 
 626, 8 Det. Leg. N. 74s, 23 Am. & 
 Eng. R. Cas. (N. S.) 93- Where 
 the plaintiff's intestate was per- 
 mitted to ride on the bumper of 
 an electric street car, and while in 
 
470 
 
 STREET SURFACE RAILROADS. 
 
 he be crowded off the platform of the car by other passen- 
 gers, where there was plenty of room inside the car, although 
 he had assumed such position after notifying the conductor 
 to stop at a certain street, which was not done, and the acci- 
 dent occurred while he was waiting for the next street t© 
 be reached, he cannot recover for any injury occasioned 
 thereby." So, too, if he project his body outward from the 
 outer edge of the footboard so as to bring it in contact with 
 a pole, where he is familiar with the surroundings, he -is held 
 to have contributed to his own injury.'* If he voluntarily 
 ride upon the front platform of a closed car, he assumes the 
 usual and ordinary dangers of the position.'^ But it is not 
 
 that position a fare was collected 
 from him, a railroad company was 
 held liable for personal injuries in- 
 flicted on him by its permitting a 
 car to approach from the rear and 
 collide with the car on which in- 
 testate was standing, thereby caus- 
 ing his death, it being broad day- 
 light, and gross negligence being 
 apparent. Grieve v. New Jersey St. 
 R. Co. (N. J. Sup.), 47 Atl. 427. 
 
 57. Glyn V. N. Y. & H. R. Co., 
 85 Hun (N. Y.), 408, 32 N. Y. 
 Supp. 1021, 66 St. Rep. (N. Y.) 426. 
 
 58. Sibley v. New Orleans City 
 & L. R. Co., 49 La. Ann. 588, 21 
 So. 851. One is negligent, who, 
 on a crowded car, stands with one 
 foot on the lower step and the 
 other on the platform, crowded be- 
 tween two men, and falls of? as 
 the car was passing in its ordinary 
 motion jolting over another rail- 
 road track at a cross-street. Barry 
 V. Union Tract. Co., 194 Pa. St. 
 576, 45 Atl. 321. And see Bir- 
 mingham Ry. & El. Co. V. James, 
 121 Ala. 120; Kennon v. Railroad 
 Co., SI La. Ann. 1599; Bartley v. 
 
 Railway Co., 148 Mo. 124; Ward v. 
 Central Park, etc., R. Co., 11 Abb. 
 Pr. (N. S.) (N. Y.) 411, 42 How. 
 Pr. (N. Y.) 289; Mack v. D. D., 
 etc., R. Co., 2 Week. Dig. (N. Y.) 
 251. 
 
 59. Cassidy v. Atl. Ave. R. Co., 
 9 Misc. Rep. (N. Y.) 275, 61 St. 
 Rep. (N. Y.) 149, 29 N. Y. Supp. 
 724, • distinguishing Nolan v. 
 Brooklyn City, etc., Ry. Co., 87 
 N. Y. 63; Murray v. Brooklyn City 
 R. Co., 27 St. Rep. (N. Y.) 280, 
 7 N. Y. Supp. 900; Medler v. Atl. 
 Ave. R. Co., 36 St. Rep. (N. Y.) 
 89, 12 N. Y. Supp. 930; affd., 126 
 N. Y. 669; Watson v. Portland & 
 C. E. R. Co., 91 Me. 584, 11 Am. 
 & Eng. R. Cas. (N. S.) 194, 64 
 Am. St. Rep. 268, 40 Atl. 699; 
 Elliott V. Newport St. R. Co., 18 
 R. I. 707, 23 L. R. A. 208; Wilde 
 V. Lynn & B. R. Co., 5 Am. Electl. 
 Cas. 414, 163 Mass. 533, 40 N. E. 
 851; Reber v. Pittsb. & B. Tract. 
 Co., 6 Am. Electl. Cas. 446, 179 
 Pa. St. 339; 36 Atl. 24s; Mt. Adams 
 & Eden Park Inc. R. Co. v. Reul, 
 4 Ohio C. C. 362; Randall v. 
 
CROWDING CARS. 47 1 
 
 negligent, as matter of law, for a passenger on a street car 
 to ride on the front platform;^" and a request by the con- 
 ductor of a street car that male passengers vacate their seats 
 in favor of ladies and stand upon the platform of the car is 
 such a direction by one clothed with authority and who repre- 
 sents the company in the management of the car, so far as 
 concerns the location of the passengers, as will entitle a 
 passenger complying therewith to recover for personal in- 
 juries sustained in collision with a car coming up from be- 
 hind if his own negligence did not contribute to the injuries.*' 
 Regulations as to entering, occupying, or leaving cars. — 
 Among the reasonable regulations which the carrier by street 
 car may make is one prohibiting passengers from getting on 
 or off the front end of the car, and requiring them to enter 
 and to leave by the rear platform only. If such a regulation 
 be violated voluntarily and without the consent of the com- 
 pany, express or implied, it is such conclusive evidence of 
 negligence on the part of the passenger that it will defeat 
 an action against the carrier notwithstanding its negligence.*^ 
 The fact that such a regulation was conspicuously posted 
 
 Frankfort & S. Pass. Ry. Co., 8 6i. Terre Haute El. R. Co. v. 
 
 Pa. Co. Ct. 277. Lauer, 21 Ind. App. 466, 52 N. E. 
 
 60. Hourney v. Brooklyn City 703, 5 Am. Neg. Rep. 581, i Rep. 
 
 R. Co., 27 St. Rep. (N. Y.) 49, 7 576. And see Still v. Nassau El. 
 
 N. Y. Supp. 602; affd., 130 N. Y. R. Co., 32 App. Div. (N. Y.) 276, 
 
 641; Nolan V. Brooklyn City & N. 52 N. Y. Supp. 975; Trumbull v. 
 
 R. Co., 87 id. 63, 13 Week. Dig. Erickson (U. S. C. C. App. Colo.), 
 
 (N. Y.) 286; Taft V. Brooklyn H. 38 C. C. A. 536, 97 Fed. 891; Mc- 
 
 R. Co., 14 Misc. Rep. (N. Y.) 390, Grath v. Brooklyn, Q. C. & S. R. 
 
 70 St. Rep. (N. Y.) 7SO, 35 N. Y.' Co., 87 Hun (N. Y.), 310, 34 N. Y. 
 
 Supp. 1042; Seelig v. Met. St. R. Supp. 365; Francisco v. Troy & L. 
 
 Co., 18 Misc. Rep. (N. Y.) 383; R- Co., 88 Hun (N. Y.), 464, 34 
 
 Kean v. West Chicago St. R. Co., N. Y. Supp. 859. 
 
 75 111. App. 33, 30 Chic. Leg> N. 62. Baltimore City Pass. Ry. Co. 
 
 201 ; Ginna v. Second Ave, R. Co., v. Wilkinson, 30 Md. 224. 
 67 N. Y. 596. 
 
4/2 STREET SURFACE RAILROADS. 
 
 inside of all the cars and that the plaintiff had often previ- 
 ously ridden on those cars is evidence from which it may be 
 inferred that he had notice of its existence.*^ But, although 
 the notice be so posted, if the employees of the carrier were 
 accustomed to receive passengers in such number as to crowd 
 the front platform, and make no objections to passengers 
 riding there, in an action for an injury to a passenger so 
 riding, the question of his negligence is one for the jury. 
 The jury may find that the carrier had waived the enforce- 
 ment of the rule.^3 If the rule of the carrier prohibits smok- 
 ing " except on the front platform," and passengers are al- 
 lowed to go there to smoke, the rule may be deemed waived.** 
 
 § 18. Biding on platform, running-board, or steps. — As has 
 been substantially stated in the last preceding section, riding 
 on the running-board or the front platform of a crowded 
 street car is not neghgent in itself.^5 The provisions of the 
 
 62. See note 62 on page 471. Week. 379; West Chicago St. R. Co. 
 
 63. Sweetland v. Lynn & B. R. v. Marks, 82 111. App. 185; Pray v. 
 Co., 177 Mass. 574, 51 L. R. A. Omaha St. Ry. Co., S Am. Elect!. 
 783, 59 N. E. 443. Cas. 407, 44 Nebr. 167, 62 N. W. 
 
 64. Vail V. Broadway R. Co., 147 447, 11 Am. R. Corp. Rep. 522, 
 N. Y. zyy, 70 St. Rep. (N. Y.) 33, 48 Am. St. Rep. 717; N. Chicago 
 affg. 31 Abb. N. C. (N. Y.) 56, 6 St. R. Co. v. Williams, 29 N. E. 
 Misc. Rep. (N. Y.) 20, 58 St. Rep. 672, 140 111. 275, affg. 40 111. App. 
 (N. Y.) 124, 26 N. Y. Supp. 59. 590; Upham v. Detroit Citizens' R. 
 And see Bradley v. Second Ave. Co., 85 Mich. 12, 12 L. R. A. 129, 
 R. Co., 34 App. Div. (N. Y.) 284, 48 N. W. 199; Sandford v. Heston- 
 12 Am. & Eng. R. Cas. (N. S.) ville, M. & F. Pass. R. Co., 136 Pa. 
 184, 54 N. Y. Supp. 256; Highland St. 84, 26 W. N. C. 4or, 20 Atl. 
 Ave. & B. R. Co. v. Donovan, 94 799; Harbison v. Met. R. Co. (D. 
 Ala. 299, 10 So. 139, 5 Am. & Eng. C. App.), 24 Wash. L. Rep. 438, 
 R. Cas. 568. 9 App. D. C. 60; Doolittle v. 
 
 65. Brainard v. Nassau El. R. So. Ry. Co., 62 S. C. 130, 40 
 Co., 44 App. Div. (N. Y.) 613, 61 S. E. 133; Geitz v. Milwaukee 
 N. Y. Supp. 74; Scott V. Bergen City R. Co., 72 Wis. 307, 39 N. 
 Co. Tract. Co. (N. J.), 48 Atl. 1113. W. 866; Willjnott v. Corrigan Con- 
 And see 43 id. 1060, 4 Chic. L. Jf. sol. St. R. Co., 106 Mo. 534, 17 S. 
 
RIDING OUTSIDE. 
 
 473 
 
 New York Railroad Law in relation to the liability of rail- 
 road companies for injuries to passengers while on the plat- 
 form do not apply to street railroad companies. ^^ If how- 
 ever there is room to be seated inside the car and no special 
 reason exists why the passeng-er should not occupy it, he is 
 negligent, as matter of law, in remaining on the platform. ^^ 
 
 W. 490; Townsend v. Binghamton, 
 57 App. Div. (N. Y.), 234, 68 N. Y. 
 Supp. 121; McGrath v. B., Q. C. 
 & S. R. Co., 5 Am. Electl. Cas. 
 422, 87 Hun (N. Y.), 310; Marion 
 St. Ry. Co. V. Shaffer, 4 Am. 
 Electl. Cas. 458, 9 Ind. App. 486, 
 36 N. E. 861 ; Bailey v. Tacoma 
 Tract. Co., 16 Wash. 48, 47 Pac. 
 241; Adams v. Washington & G. 
 R. Co. (D. C. App.), 9 App. 
 D. C. 2(i, 24 Wash. L. Rep. 364; 
 Dillon V. Forty-second St., etc., R. 
 Co., 28 App. Div. (N. Y.) 404, 51 
 N. Y. Supp. 14s; Hassen v. Nas- 
 sau El. Ry. Co., 34 App. Div. (N. 
 Y.) 71, S3 N. Y. Supp. 1069; Mul- 
 doon V. Seattle City R. Co., 7 
 Wash. 528, 35 Pac. 422, 22 L. R. A. 
 
 794- 
 
 In Missouri it was held that it 
 was error to instruct the jury that 
 if the plaintiff was riding on the 
 footboard of a grip car when it 
 was running at its usual speed, he 
 was guilty of contributory negli- 
 gence unless he was a passenger, 
 since his status as a passenger can- 
 not affect the question of his neg- 
 ligence. Raming v. Met. St. Ry. 
 Co., IS7 Mo. 477, 57 S. W. 268. 
 The passenger's negligence in rid- 
 ing on the platform will not pre- 
 vent a recovery for his death if 
 the injuries would have been in- 
 flicted upon him in the same man- 
 ner had he ridden elsewhere upon 
 
 the car. Birmingham Ry. & E. 
 Co. V. James, 121 Ala. 120, 25 So. 
 847. 
 
 66. Vail V. Broadway R. Co., 147 
 N. Y. zyT, 70 St. Rep. (N. Y.) 33; 
 Lax V. Forty-second St., etc., R. 
 Co., 46 N. Y. Super. Ct. (14 J. & S.) 
 448; Hayes v. Forty-second St., 
 etc., R. Co., 97 N. Y. 259. In the 
 case first cited, the court said: 
 " The general purpose of the act 
 of 1850 (Railroad Law then in 
 question) was to provide for the 
 operation of steam railroads. It is 
 perfectly manifest and has always 
 been conceded that many of its 
 provisions can have no application 
 whatever to street railroads. In 
 the nature of things, a provision of 
 this character, intended primarily 
 to prevent accidents and injuries 
 to passengers on trains operated 
 by steam and running at a high 
 rate of speed, is not applicable to 
 a street railroad, the cars of which 
 are drawn through city streets at 
 the rate of a few miles per hour. 
 The danger to passengers standing 
 upon the platform of steam cars 
 when in motion is great and ob- 
 vious, while that of passengers on 
 the platform of street cars is al- 
 most nothing, as is fully demon- 
 strated by the practice of the 
 general public and the companies 
 themselves." (p. 381.) 
 
 dj. Thane v. Scranton Tract. Co., 
 
474 STREET SURFACE RAILROADS. 
 
 A passenger however may go out of the car as it approaches 
 his destination, and he will not be necessarily guilty of neg- 
 ligence because he stood on the platform with his back 
 against the dashboard, and by a sudden jerk of the car was 
 thrown into the street.** But,- if he thus voluntarily places 
 himself upon the platform or step of the car when it is in 
 motion and is thrown ofif by the increase of the speed of the 
 car, which happens before he has indicated to any of the 
 agents of the company that he intends to aUght, such an in- 
 crease of speed, unaccompanied by any other fact, cannot 
 be the foundation of a charge against the company of negli- 
 gence.*' The passenger is not necessarily negligent if, 
 under direction of the conductor to obtain a transfer from 
 the conductor of the rear car, he attempts' to go to the rear 
 car just as the train starts; but he is not justified in attempt- 
 ing to pass from one footboard to another while the train 
 is in motion ;7° nor is he justified in riding upon the rear plat- 
 form when there is ample standing room inside the car in 
 which there are straps unto which he may cHng while stand- 
 ing.^' But a woman's want of reasonable care in getting 
 upon a crowded street car and attempting to ride upon the 
 platform because she is unable to get within the car, will not 
 relieve the street car company from liability for injuries due 
 to her being thrown from the platform, if, knowing her situa- 
 
 191 Pa. St. 249, 43 Atl. 136, 6 Am. 69. Sims v. M. E. R. Co., 65 
 
 Neg. Rep. 185, 4 Chic. L. J. Week. App. Div. (N. Y.) 270, 276. 
 
 260; Bradley v. Second Ave. R. 70. Eickhof v. Chicago N. S. R. 
 
 Co., 90 Hun (N. Y.), 419, 70 St. Co., 74 111. App. 196. 
 
 Rep. (N. Y.) 622, 35 N. Y. Supp. 71. Ward v. Central Park R. Co., 
 
 918; Mann V. Phila. Tract. Co., 175 11 Abb. Pr. (N. S.) (N. Y.) 411; 
 
 Pa. St. 122, 34 Atl. 572. Aikin v. Frankford & S. P. City 
 
 68. N. Chicago St. R. Co. v. Pass. R. Co., 142 Pa. St. 47, 21 
 
 Baur, 179 111. 126, S3 N. E. 568, Atl. 781; Andrews v. Capital City, 
 
 45 L. R. A. 108. etc., R. Co., 2 Mackey (D. C), 137. 
 
RIDING OUTSIDE. 
 
 475 
 
 tion and consequent danger, it might, by exercise of reason- 
 able care, under the circumstances, have prevented injury to 
 her.'^ Where it is customary for the passengers, with the 
 consent of the carrier, to use the running-board of an open 
 street car, not only as a means for ingress and egress, but 
 also to pass from one part of the car to another, the question 
 of negligence, in case of accident, cannot be properly an- 
 swered without considering this circumstance. Standing 
 upon the running-board, the passenger must take reasonable 
 care to avoid accident; and it cannot certainly be said that 
 the carrier is negligent in permitting the passenger to use 
 the running-board as a standing place.'^ Courts will not 
 draw distinction between footboards and seats upon a street 
 car as places of relative danger and safety in view of the 
 
 72. Met. R. Co. V. Shashall (D. 
 C. App.), 22 Wash. L. Rep. 377. 
 
 73. Citizens' St. R. Co. v. Hoff- 
 bauer, 23 Ind. App. 614, 56 N. E. 
 54; West Chicago St. Ry. Co. v. 
 Marks, 182 111. 15, 55 N. E. 67; 
 Paris V. Brooklyn City & N. R. 
 Co., 46 App. Div. (N. Y.) 231, 61 
 N. Y. Supp. 670; Asbury v. Char- 
 lotte El. Ry., L. & P. Co., 125 N. 
 C. 568, 34 S. E. 654. 
 
 In the Hoffbauer Case, supra, it 
 appeared that the street car was 
 running backward on the single 
 track and soon after turned on to 
 a double track with the footboard 
 within a few inches of the trolley 
 poles; plaintiff, ascertaining that 
 he was being carried away from 
 his destination, and without seeing 
 the poles, stepped from a seat on 
 to the running board and started 
 for the rear of the car to get a 
 transfer, when he was struck by 
 one of the poles and injured. No 
 
 warning was given that it was un- 
 safe for him to step on the run- 
 ning board, or that the car was 
 running on the wrong track. Held, 
 the questions of the carrier's neg- 
 ligence and of the passenger's con- 
 tributive negligence were for the 
 jury; citing Cogswell v. Railway 
 Co., 5 Wash. 46, 31 Pac. 411; Rail- 
 way Co. V. Scott, 86 Va. 902, 11 
 S. E. 404; Railway Co. v. Rude, 62 
 111. App. sso; Railroad Co. v. 
 Cook, I4S 111. SSI. 33 N. E. 958; 
 Elliott V. Railway Co., 18 R. I. 
 707, 28 Atl. 331, 31 id- 694, 23 L. 
 R. A. 208; Railway Co. v. Mc- 
 Cleave (Ky.), 38 S. W. lOSS; Rail- 
 way Co. V. Higgs, 38 Kan. 375, 16 
 Pac. 667; Spellman v. Transit Co. 
 (Nebr.), 5S N. W. 270, 22 L. R. 
 A. 316; McLean v. Burbank, 11 
 Minn. 277; Dahl v. Railway Co., 
 62 Wis. 6ss, 22 N. W. 7SS ; Watkins 
 V. El. Co. (Ala.), 24 So. 392, 43 L. 
 R. A. 297. 
 
J476 STREET SURFACE RAILROADS. 
 
 general custom of street carriage of passengers/* If a street 
 railway be built along a causeway which necessitated placing 
 trolley poles near the track, and the plaintiff, who had knowl- 
 edge of the situation, be riding on the footboard next to the 
 trolley poles and refused to step upon the platform at the 
 invitation of the conductor, but leaned back to allow him to 
 pass by and thereby his head is brought in contact with a 
 trolley pole, he is guilty of contributory negligence. '^ \ 
 passenger upon a cable street railway is not guilty of negli- 
 gence in taking a seat provided for passengers upon the out- 
 side of the grip car instead of on the inside of the trailer. '^ 
 
 § 19. Paying fares. — There is a distinction between rail- 
 roads whose passengers may pay their fares at a ticket office 
 and street surface railroads where they are obliged or per- 
 mitted, customarily, to pay upon the cars. While the car- 
 rier may ordinarily exact just the amount of the fare in ad- 
 vance, nevertheless, since in a street car the passenger is 
 ordinarily permitted to board without demanding the pay- 
 ment of his fare, the enforcement of a rule requiring the 
 
 74- West Chicago St. R. Co. v. 58 St. Rep. (N. Y.) 23, 27 N. Y. 
 Stiver, 69 III. App. 625; Lake v. Supp. 257; Tanner v. Buffalo R. 
 Cincinnati Inc. P. R. Co., 13 Ohio Co., 72 Hun (N. Y.), 465, 54 St. 
 C. C. 494; East Omaha St. R. Co. Rep. (N. Y.) 776, 25 N. Y. Supp. 
 V. Godola, 50 Nebr. 906, 70 N. W. 242; Littmann v. D. D., etc., R. 
 491, 7 Am. & Eng. R. Cas. (N. S.), Co., 6 Misc. Rep. (N. Y.) 34, 55 
 300; Cleveland, C, C. & St. L. Co. St. Rep. (N. Y.) 514, 25 N. Y. 
 V. Moneyhun, 146 Ind. 147, 34 L. Supp. 1002; Sweeney v. Kansas 
 R. A. 141, 44 N. E. 1 106, 5 Am. & City Cable R. Co., 150 Mo. 385, 
 Eng. R. Cas. (N. S.) 682. 51 S. W. 682; Pomaski v. Grant, 
 
 75- Nugent v. Fair Haven & W. 119 Mich. 675, 78 N. W. 891, 6 
 St. Ry. Co., 73 Conn. 139, 46 Atl. Det. Leg. N. 43; Malpass v. Hes- 
 875. And see Caspers v. D. D. & tonville, M. & F. Pass. R. Co., 
 E. B. R. Co., 22 App. Div. (N. Y.) 129 Pa. St. 599, 42 Atl. 291, s Am. 
 156. 47 N. Y. Supp. 961; Vroman Neg. Rep. 471. 
 
 V. Houston, W. S. & P. Ferry R. 76. Hawkins v. Front St. Cable 
 
 Co., 7 Misc. Rep. (N. Y.) 234, Co., 3 Wash. 592, 28 Pac. 1021. 
 
PAYING FARES. 
 
 477 
 
 tender of the exact fare is impracticable and illegal.'' The 
 conductor is bound to furnish change for a reasonable sum;'* 
 and a regulation of the carrier requiring change to the 
 amount of $2 to be furnished by conductors on street cars 
 to passengers is a reasonable provision for the convenience 
 of the public; and the conductor cannot be required to 
 furnish change for a $5 bill.'* The regulations of a street 
 railroad company requiring that one taking passage on a 
 car vidthout the station should pay a fare, although a fare 
 had already been paid in the station, is a reasonable one that 
 should be observed by the passenger who may be ejected 
 from the street car for refusal to pay the second fare." A 
 
 ■jy. Tarbell v. Central Pac. Ry. 
 Co., 34 Cal. 616. One cannot re- 
 cover for his ejectment from a 
 street car who, after having ridden 
 a block and a half and, called upon 
 to pay fare, then states that he 
 has plenty of time to pay and will 
 take a little time, and then upon 
 the driver attempting to eject him, 
 puts the driver out on the plat- 
 form, and leaves the car, upon or- 
 der, after the driver has armed 
 himself to compel him to leave. 
 Nye V. Marysville & Y. C. St. R. 
 Co., 97 Cal. 461, 32 Pac. 530. The 
 carrier is liable in damages to a 
 passenger ejected from its car 
 for refusal to pay a second fare 
 to its driver after depositing a fare 
 in the fare-box in accordance with 
 the rule posted in the car which 
 forbids payment to the driver, al- 
 though it has given private direc- 
 tions to the driver to go through 
 the cars when crowded and col- 
 lect the fares. Perry v. Pittsb. 
 Union R. Co., 153 Pa. St. 236, 25 
 Atl. 772. And see Hudson v. Lynn 
 & B. R. Co. (Mass.), 59 N. E. 647. 
 
 78. Barker v. Central Park, N. 
 & E. River R. Co., 151 N. Y. 237, 
 35 L. R. A. 489, 45 N. E. 550; 
 Barrett v. Market St. R. Co., 81 
 Cal. 296, 6 L. R. A. 236; Mul- 
 downey v. Pittsb. & B. Tract. Co., 
 8 Pa. Super. Ct. 335, 29 Pittsb. 
 L. J. (N. S.) 158, 43 W. N. C. 52; 
 17 U. C. Q. B. 428. In the Bar- 
 rett Case, supra, the tender of a 
 $S-gold-piece was held sufficient. 
 
 79. Nashville St. Ry. Co. v. Grif- 
 fin, 104 Tenn. 81, 57 S. W. 153, 
 49 L. R. A. 451. Plaintifif had 
 paid his fare in the station, and 
 seeing the car he wished to take 
 standing just outside, ran for it 
 and boarded it. The conductor 
 immediately demanded fare after 
 starting the car, and ejected plain- 
 tiff in such manner as to injure 
 him. It was held also that it was 
 error to charge that the starting 
 of the car on its journey with 
 knowledge that plaintiff had paid 
 a fare was an acceptance of him 
 as a passenger and a waiver of the 
 rule as to him. 
 
4/8 STREET SURFACE RAILROADS. 
 
 parent refusing to pay the fare of his child, who is subject 
 to payment of fare, even though he tender payment of his 
 own fare, may, with the child, be expelled from the car.^" 
 If a coin be tendered which the conductor deems counterfeit, 
 but which is in fact genuine, and the passenger unreasonably 
 refuses to pay his fare with other money and is ejected, 
 it is proper to submit to the jury, on the question of 
 the injury to his feelings for the ejectment, whether his 
 conduct tended to provoke trouble unnecessarily.*' A 
 passenger who boards an open street car and after pay- 
 ing his fare therein changes, for his own convenience, 
 to a closed car which is attached to the open car, 
 may properly be ejected if he refuse to pay fare to 
 the conductor of the closed car.*^ But, ordinarily, a rail- 
 road conductor is chargeable with knowledge that a passen- 
 ger has delivered valid tickets to an assistant conductor aid- 
 
 80. Braun v. Northern Pac. Ry. tendered genuine coin which the 
 Co., 79 Minn. 404, 49 L. R. A. conductor deemed counterfeit, and 
 319, 82 N. W. 675. And it has on his refusal to pay with other 
 teen held that the demand of the money the conductor took him by 
 regular fare from passengers by a the collar, and said: "Come along, 
 conductor is not improper, al- you have got to leave this car; " 
 though another conductor on the thereupon he and his lady corn- 
 same train had previously accepted panion left it peaceably. The con- 
 less fare. Cox v. Los Angeles Ter- ductor spoke harshly and so 
 minal R. Co., 109 Cal. 100, 41 Pac. loudly as to be heard by others 
 794 ; Warfield v. Louisville & N. R. in the car when it was in motion. 
 Co. (Tenn.), 55 S. W. 304. If pas- Held, that the ejection was not 
 senger ejected to platform for re- under such insulting and cruel cir- 
 fusal to pay child's fare, conductor cumstances as to warrant the sub- 
 need not accept fare then tendered mission of the question of punitive 
 tut may put him oflf. Behr v. damages to the jury. 
 
 Erie R. Co., 69 App. Div. (N. Y.) 82. Lasker v. Third Ave. R. Co., 
 
 416. 27 Misc. Rep. (N. Y.) 824, 57 N. 
 
 81. Bassau v. Mad. El. Ry. Co., Y. Snpp. 395. And see Cherry v. 
 106 Wis. 301, 82 N. W. 152. In Kansas City, etc.. R. Co., 52 Mo. 
 the case cited it appeared that the App. 499. 
 
 plaintiff, accompanied by a lady, 
 
ALIGHTING. 479 
 
 ing him in collecting tickets; and the passenger need not 
 pay fare wrongfully demanded of him and sue for its return, 
 instead of submitting to ejection and bringing an action for 
 the tort.*^ The constitutional declaration that railways are 
 public highways does not make them such in the sense that 
 persons are authorized to ride on railway cars without con- 
 sent of the company or payment of fares. ^* A passenger 
 may avail himself of the benefit of a contract by a town with 
 a street railway company limiting the rate of fare.^^ That a 
 traveler is being carried gratuitously or has not paid his fare 
 will not of itself deprive him of the right of action for the 
 result of the carrier's negligence.** A genuine silver coin 
 is legal tender for car fare, although it is worn smooth; and 
 a refusal to make any other payment will not prevent the 
 passenger from maintaining an action for damages for his 
 ejection if the coin is not appreciably diminished in weight 
 and is distinguishable.*' 
 
 § 20. Alighting. — A common carrier of passengers is re- 
 quired to do all that human care, vigilance, and foresight 
 can reasonably do, consistent with the mode of conveyance 
 
 83. Cherry Case, supra; Toomey 11 L. R. A. 486, 15 S. W. 280; 
 V. D., L. & W. R. Co., 24 N. Y. Cogswell v. West S. & M. E. El. 
 Supp. 108, S3 St. Rep. (N. Y.) 567. R- Co., 5 Wash. 46, 52 Am. & 
 
 84. Farber v. Mo. P. R. Co., 16 Eng. R. Cas. 500, 7 Am. R. & 
 Mo. 81, 20 L. R. A. 350, 22 S. W. Corp. Rep. 48, 31 Pac. 4"; Florida 
 631. S. R. Co. V. Hirst, 30 Fla. i, 16 
 
 85. Adams v. Union R. Co., 21 L. R. A. 631, 12 Ry. & Corp. L. 
 R. I. (Part I) 137, id. I34, 44 L- J- 218, 11 So. 506, 52 Am. & Eng. 
 R. A. 273, 42 Atl. 515. R. Cas. 409. 
 
 86. Russell v. Pittsb., C, C. & 87. Morgan v. Jersey City & B. 
 St. L. Ry. Co. (Ind.), 61 N. E. R. Co., 52 N. J. L. 60, 18 Atl. 
 678; Louisville, N. A. & C. R. Co. 904- And see Atlanta Consol. St. 
 V. Taylor, 126 Ind. 126, 25 N. E. R. Co. v. Keeny, 99 Ga. 266, 33 
 869, 25 Ohio L. J. ss; Gulf C. & S. L. R. A. 824, 25 S. E. 629, 5 Am. 
 F. R. Co. V. Wilson, 79 Tex. 371, & Eng. R. Cas. (N. S.) 30S. 
 
48o 
 
 STREET SURFACE RAILROADS. 
 
 and the practicable prosecution of its business, to prevent 
 accident to passengers alighting from its cars.** It is the 
 duty of the person in charge of the power, when signaled, 
 to stop his car at a usual and customary station for stopping 
 a sufficient length of time to give the passenger a reasonable 
 opportunity to ahght in safety; and it is the reciprocal duty 
 of the passenger to use reasonable diligence in getting ofif.*' 
 The passenger may assume that he will have a reasonable 
 time to alight; and if he be injured in alighting the jury may 
 infer that the time was insufficient.^" It must be remembered 
 
 88. Washington & G. R. Co. v. 
 Grant, ii App. D. C. 107, 25 Wash. 
 L. Rep. 342; Chicago & A. R. Co. 
 V. Byrum, 153 111. 131, 38 N. E. 
 578; Grace v. St. Louis R. Co., 156 
 Mo. 295, 56 S. W. Il?l; Asbury 
 V. Charlotte Ry., L & P. Co., 125 
 N. C. 568, 34 S. E. 654. 
 
 89. Paducah St. Ry. Co. v. 
 Walsh, 22 Ky. L. Rep. 532, 58 S. 
 W. 431; Weiss V. Met. St. Ry. Co., 
 29 Misc. Rep. (N. Y.) 332, 60 N. 
 y. Supp. 473; West Chicago St. 
 R. Co. V. Waniata, 68 111. App. 
 481; affd., 169 111. 17, 48 N. E. 
 AZT, Conway v. New Orleans & 
 C. R. Co., 46 La. Ann. 1429, 16 
 So. 362; Murphy v. Met. St. Ry. 
 Co., 19 Misc. Rep. (N. Y.) 194, 43 
 N. Y. Supp. 223; Poulin v. Broad- 
 way & Seventh Ave. R. Co., 61 N. 
 Y. 621, affg. 34 N. Y. Super. Ct. 
 (2 J. & S.) 296. 
 
 90. Cullar V. Mo., K. & T. Ry. 
 Co., 84 Mo. App. 340; Belt El. 
 L. Co. V. Tomlin, 19 Ky. L. Rep. 
 433, 40 S. W. 925; Met. R. Co. v. 
 Tones (D. C. App.), 21 Wash. L. 
 Rep. 646. I App. D. C. 200; Brit- 
 ton V. Grand Rapids St. R. Co., 
 90 Mich. 159, 51 N. W. 276; N. 
 
 Chicago St. R. Co. v. Brown, 178 
 111. 187, 52 N. E. 864, affg. 76 111. 
 App. 654. It has been held that the 
 one in charge of the street car 
 has a duty to know that no pas- 
 senger is in the act of alighting 
 or in a dangerous position before 
 putting the car in motion again; 
 that stopping a reasonable time to 
 allow passengers to alight is not 
 sufficient. Anderson v. Citizens' 
 St. R. Co. (Ind. App.), 38 N. E. 
 1 109. But the better rule is that 
 the carrier is not liable for an ac- 
 cident to a passenger received in 
 attempting to alight from the car 
 after it had started, where it has 
 stopped a ?-easonable time for pas- 
 sengers to get off, and all intend- 
 ing to get off have apparently done 
 so, and the conductor is not aware 
 of the passenger's intention to 
 leave. Gilbert v. West End St. R. 
 Co., 160 Mass. 403, 36 N. E. 60; 
 Losee v. Watervliet Tp. & R. Co., 
 63 Hun (N. Y.), 404. The con- 
 ductor however must be alert to 
 see that no one is alighting or at- 
 tempting to alight before he starts 
 his car. His absorption in other 
 duties will aggravate rather than 
 
ALIGHTING. 
 
 48 r 
 
 that the duty resting upon the carrier is to deliver its pas- 
 senger safely, and that involves the duty of observing whether 
 he has actually alighted before the car is started again. If 
 the conductor fails to attend to this duty and does not give 
 the passenger time enough to get off before the car starts, 
 it is necessarily this neglect of duty which is the primary 
 cause of the accident, if injury be occasioned thereby to the 
 passenger. It is not a duty due to a person solely because 
 he is in danger of being hurt, but a duty owed to a person 
 whom the carrier had undertaken to deliver and who was en- 
 titled to be delivered safely by being allowed to alight with- 
 out danger.9' But the carrier is under no duty to assist the 
 
 excuse the charge of the carrier's 
 negligence in starting while the 
 passenger is attempting to alight. 
 Met. R. Co. V. Jones, supra. And 
 see Mulhado v. Brooklyn City R. 
 Co., 30 N. Y. 370; Schiller v. D. 
 D., etc., R. Co., 26 Misc. Rep. (N. 
 Y.) 392, 56 N. Y. Supp. 184. 
 
 91. Washington & G. R. Co. v. 
 Tobriner, 147 U. S. 571, 583, 37 L. 
 Ed. 284, 289, 21 Wash. L. Rep. 
 231, 13 Sup. Ct. Rep. S57; Bir- 
 mingham, R. & E. Co. V. Weld- 
 man, 119 Ala. 547, 24 So. 548; 
 Leavenworth El. Co. v. Cusick, 60 
 Kan. 590, 57 Pac. 519, 6 Am. Neg. 
 Rep. 282; Louisville R. Co. v. 
 Rammacker, 21 Ky. L. Rep. 250, 
 SI S. W. 175; Cobb V. Lindell R. 
 Co., 149 Mo. 13s, 50 S. W. 31a; 
 Flanagan v. Met. St. Ry. Co., 31 
 Misc. Rep. (N. Y.) 820, 64 N. Y. 
 Supp. 379; Grace v. St. Louis R. 
 Co., 156 Mo. 295, 56 S. W. 1 121; 
 Fenig v. New Jersey St. Ry. Co. 
 (N. J.), 46 Atl. 602; Morrison v. 
 Charlotte El. Ry., L. & P. Co., 
 123 N. C. 414, 31 S. E. 720; Spring- 
 
 31 
 
 field Consol. R. Co. v. Hoeffner, 
 i7j 111. 634, 51 N. E. 884, affg. 71 
 111. App. 162; West Chicago St. 
 R. Co. V. Manning, 170 111. 417, 
 48 N. E. 938, 9 Am. & Eng. R. 
 Cas. (N. S.) 364, affg. 70 111. App. 
 239; Nichols V. Lynn & B. R. Co., 
 168 Mass. 528, 47 N. E. 427. 
 
 Notice to conductor or gripman 
 on the car from the conduct of a 
 passenger in his immediate pres- 
 ence and sight that such passenger 
 wished to alight as soon as the 
 car came to the stop which he had 
 signaled is the equivalent of ex- 
 press warning or notification by 
 the passenger so as to render the 
 company liable for the sudden 
 starting of the car while he was 
 endeavoring to alight. West Chi- 
 cago St. R. Co. V. Stiver, 69 111. 
 App. 625. 
 
 Plaintiff, weighing 300 pounds, 
 injured in alighting from defend- 
 ant's car, testified that he was sit- 
 ting with one side of his hip on 
 the seat, his foot on the running^ 
 board about to step down, when 
 
48:2 
 
 STREET SURFACE RAILROADS. 
 
 passenger in alighting. ^^ If. however the car be started 
 suddenly so as to produce a jerking motion while the pas- 
 senger is alighting, it is in itself an act of negligence; but 
 the question whether a reasonable opportunity to alight had 
 been given is generally one of fact, as there is no fixed meas- 
 ure of care which can be declared by the court as a matter 
 of law. 53 The fact that a street car stops at the nearer cross- 
 walk of a crossing will authorize a person to assume that 
 such stop was made to enable him to, leave the car at the 
 
 he was thrown " out and forward " 
 by a sudden forward jerk of the car 
 which had come nearly to a stand- 
 still for him to alight. Held, that 
 the jury were not bound to find 
 whether he was thrown ofif for- 
 ward or backward. Guntzer v. 
 Yonkers Ry. Co., 51 App. Div. (N. 
 Y.) 222, 64 N. Y. Supp. 857. 
 
 92. Deming v. Chicago, R. I. & 
 P. Ry. Co., 80 Mo. App. 152, 2 
 Mo. App. Rep. 547; Selby v. De- 
 troit Ry. (Mich.), 81 N. W. 106. 
 
 93. Brady v. Met. St. Ry. Co., 
 33 Misc. Rep. (N. Y.) 793, 67 N. 
 Y. Supp. 588; Root V. Des Moines 
 City Ry. Co. (la.), 83 N. W. 905. 
 In the case last cited it was 
 claimed by plaintifif that while step- 
 ping to the ground from the car, 
 the car started with a jerk and she 
 was injured. The conductor tes- 
 tified that he did not see the plain- 
 tiff nod as a signal to stop, and 
 did not commence to decrease the 
 speed of his car till he had passed 
 the crossing, and then only to 
 Iceep from frightening a horse, and 
 that the speed wa'^ not reduced to 
 less than three miles an hour, and 
 -was increased without a jerk after 
 it had passed the horse. He was 
 corroborated as to the speed of the 
 
 car by a third person, who also tes- 
 tified that the plaintiff alighted be- 
 fore the speed was increased, and 
 had made contradictory statements 
 out of court. The plaintiff knew 
 that the car had passed the cross- 
 ing and that it only stopped at 
 crossings. Held a question for 
 the jury. And see Machen v. 
 Pittsb. & W. E. Pass. Ry. Co., 13 
 Pa. Super. Ct. 642; Willis v. Met. 
 St. Ry. Co., 63 App. Div. (N. Y.) 
 332, 71 N. Y. Supp. 554; Cooper 
 V. Ga., C. & N. Ry. Co., 61 S. C. 
 34S, 39 S. E. 543; Colt v. Sixth 
 Ave. R. Co., 33 N. Y. Super. Ct. 
 (I J. & S.) 189; aflfd., 49 N. Y. 
 671; Monroe v. Third Ave. R. Co., 
 SO N. Y. Super. Ct. (18 J. & S.) 
 114; Nichols V. Sixth Ave. R. Co., 
 38 N. Y. 131, affg., 10 Bosw. (N. 
 Y.) 260; Harris v. Union Ry. Co., 
 69 App. Div. (N. Y.) 385. In the 
 case last cited it appeared that the 
 passenger motioned to conductor 
 who was on rear platform, and the 
 latter raised his hand to the bell- 
 rope, and passenger, without hear- 
 ing the bell, stepped down on side- 
 step of car, and when it had slowed 
 down, while in the act of alighting 
 it started forward suddenly and he 
 was injured. Held for jury. 
 
ALIGHTING. 
 
 483 
 
 nearest walk, although a city ordinance directs the stop to 
 be made at the farther walk of a street intersection. It is 
 the duty of the conductor when stopping at the nearer walk 
 because of an obstruction or other cause, to warn the pas- 
 sengers not to alight there.'* It is also his duty when a lady 
 passenger is alighting to see that she has time, not only to 
 step ofif, but to clear her skirts, and that they do not catch 
 on any appHance on the platform.'^ a passenger on an 
 electric car is not necessarily negligent in taking, with ordi- 
 nary care, a position on the steps of the car preparatory to 
 alighting, or in attempting, to alight while the car is moving 
 so slowly that it would not appear to a man of ordinary 
 prudence to be dangerous.'* The question of his negligence 
 
 94. West Chicago St. R. Co. v. 
 Manning, 170 III. 417, 48 N. E. 958, 
 9 Am. & Eng. R. Gas. (N. S.) 364, 
 affg. 70 111. App. 239. 
 
 95. Smith V. Kingston City R. 
 Co., 55 App. Div. (N. Y.) 143, 67 
 N. Y. Supp. i8s; aflfd., 169 N. Y. 
 — . In the case cited it was also 
 held that it cannot be declared to 
 be negligent, as matter of law, for 
 a lady to wear a dress so long that 
 it would be likely to catch upon an 
 appliance of a street car, like a 
 plunger. And see Colt v. Sixth 
 Ave. R. Co., 33 N. Y. Super. Ct. 
 189; afifd., 49 N. Y. 671; Citizens' 
 St. Ry. Co. V. Shepard (Ind. App.), 
 59 N. E. 340; Kelley v. N. Y., etc., 
 R. Co., 109 N. Y. 44, IS N. E. 879; 
 Chase V. Jamestown St. Ry. Co., 
 38 St. Rep. (N. Y.) 954, IS N. Y. 
 Supp. 35; aflfd., 133 N. Y. 619; 
 Bowdle V. Detroit St. R. Co., 103 
 Mich. 272, 50 Am. St. Rep. 366, 40 
 Cent. L. J. 132, 61 N. W. 529. In 
 Poulin V. Broadway & Seventh 
 
 Ave. R. Co., 61 N. Y. 621, aflfg. 34 N. 
 Y. Super. Ct. (2 J. & S.) 296, it was 
 held that the refusal to charge that 
 a lady wearing a hoopskirt should 
 exercise more care in .alighting 
 from a car than a man was proper. 
 
 In Doyle v. M. E. R. Co., 29 
 Misc. Rep. (N. Y.) 331, 60 N. Y. 
 Supp. 47S, it was held that because 
 a lady passenger was dragged 
 along after alighting from a street 
 car, her skirt in some unexplained 
 manner having been caught by 
 some part of the car built in 1898, 
 and of the most approved pattern, 
 afiforded in itself no proof that the 
 carrier had been negligent. 
 
 96. Birmingham Ry. & E. Co. 
 v. James, 121 Ala. 120, 25 So. 847; 
 Watkins v. B. Ry. & E. Co., 120 
 Ala. 147, 43 L. R.'A. 297, 24 So. 
 392; Sweeney v. Kansas City Cable 
 Co., ISO Mo. 38s, 51 S. W. 682; 
 Scott V. Bergen County Tract. Co., 
 43 Atl. 1060, 4 Chic. L. J. Wkly. 
 379; Bowie V. Greenville St. R. 
 
484 
 
 STEiEET SURFACE RAILROADS. 
 
 is always one for the jury.''' A momentary stop of a car 
 at a place at which passengers are not accustomed to alight 
 for the purpose of taking a signal for crossing another track,, 
 or, in case of a cable car, to make the " let-go," is not an 
 invitation to a passenger to get ofif at such a point; and the 
 carrier is not negligent, unless the person in charge of the 
 car knew that the passenger intended to alight or had reason 
 to suspect it;9* and this is true even although the passenger 
 
 Co., 69 Miss. 196; N. J. Tract. Co. 
 V. Gardner, 60 N. J. L. S7i. 38 Atl. 
 669, 9 Am. & Eng. R. Cas. (N. S.) 
 843; Jagger v. People's St. R. Co., 
 180 Pa. St. 436, 38 L. R. A. 786; 
 North Chicago St. R. Co. v. Wis- 
 well, 168 111. 613; Saiko v. St. Paul 
 City R. Co., 67 Minn. 8; Schepers 
 V. Union Depot R. Co., S Am. 
 Electl. Cas. 399, 126 Mo. 665; Dun- 
 can V. Wyatt Park, etc., Co., 48 
 Mo. App. 659. The fact that the 
 passenger attempted to step off the 
 car while it was in motion will not 
 prevent her recovery for injuries 
 occasioned by a sudden start of the 
 car so nearly simultaneous with her 
 stepping off that she had no chance 
 after the car started, but was 
 obliged to step off to avoid falling. 
 Piper V. Minneapolis St. R. Co., 
 52 Minn. 269, 53 N. W. 1060; Mit- 
 chell V. El. Tract. Co., 12 Pa. Super. 
 Ct. 4^2. 
 
 97. Holmes v. Ashtabula R. T. 
 Co., 10 O. C. D. 638; Kuhlman v. 
 Met. St. R. Co., 29 Misc. Rep. (N. 
 Y.) 773, 60 N. Y. Supp. 989; revd., 
 30 Misc. Rep. (N. Y.) 417, 62 N. Y. 
 Supp. 466; Hutchins v. Macomber, 
 68 N. H. 473, 44 Atl. 602; Currie 
 V. Mendenhall (Minn.), 79 N. W. 
 677; Coursey v. So. Ry. Co. (Ga.), 
 38 S. E. 866; Ober v. Crescent City 
 
 R. Co., 44 La. Ann. 1059, 52 Am. 
 & Eng. R. Cas. 576, 11 So. 818. A 
 passenger who, though acquainted 
 with the line and with its dangers, 
 and in spite of a warning notice 
 conspicuously placed in the car, 
 steps upon the footboard of a mov- 
 ing trolley car for the purpose of 
 alighting, his body being outside 
 the car, and is struck by a trolley 
 post, and is injured, is guilty of 
 contributory negligence, which bars 
 recovery against the railway com- 
 pany. State v. Lake Roland El. 
 Ry. Co. (Md. Ct. App.), 6 Am.. 
 Electl. Cas. 412. 
 
 98. Kohler v. West Side R. Co., 
 99 Wis. 33, 74 N. W. 568; Jackson 
 V. Grand Ave. R. Co., 118 Mo. 199, 
 24 S. W. 192. Where plaintiff told 
 the motorman to stop at a certain 
 street, the latter did not notice his 
 request, and while crossing the 
 street plaintiff touched him and 
 asked him why he did not stop the 
 car, and thereupon the motorman 
 immediately proceeded to slow up, 
 and while doing so told plaintiff not 
 to get off until the car stopped; 
 nevertheless, plaintiff stepped off 
 before it stopped and was injured; 
 and it was held he was not entitled 
 to recover. Campbell v. Los Ange- 
 les Ry. Co. (Cal.), 67 Pac. SO. 
 
ALIGHTING. 
 
 485 
 
 "has signaled the conductor that he desires to alight.^' A 
 passenger on a street car has the right to expect that the 
 street where she ahghts is in a safe condition; and if she 
 ahght without -looking to see where she is stepping and is 
 injured thereby, she is not necessarily negligent. It is the 
 duty of the carrier to see to it that the place of ahghting is 
 safe.' If to improve the roadbed, the carrier excavate and 
 leave open trenches in a public street, it owes the duty to 
 those desiring to alight from street cars, as well as to others 
 of the traveling public, to exercise reasonable care to guard 
 
 99. Armstrong v. Met. St. Ry. 
 €0., 36 App. Div. (N. Y.) 525, 55 
 N. Y. Supp. 498, affd. 165 N. Y. 641, 
 59 N. E. 1 1 18. The court in this 
 case said: " The slackening of the 
 speed of the car may be due to the 
 exercise of reasonable care in the 
 operation of the oar with respect 
 to pedestrians or vehicles; and, in 
 the absence of knowledge that the 
 conductor had signaled the grip- 
 man to stop and that he was in the 
 act of doing so in response to the 
 signal, the plaintiflf would have no 
 ground for assuming that a change 
 in the speed of the car was in- 
 tended for his benefit or conveni- 
 ence." (Page 527.) And see Nich- 
 ols V. Sixth Ave. R. Co., 38 N. Y. 
 131; Dresslar v. Citizens' St. R. 
 Co., 19 Ind. App. 383, 47 N. E. 
 651; Chicago City R. Co. v. Gregg, 
 69 111. App. "77. 
 
 I. Bass v. Concord St. Ry. (N. 
 H.), 46 Atl. 1056. In the case cited 
 the car was stopped a short dis- 
 tance beyond the regular place and 
 opposite a hole in the highway into 
 which the plaintiflf fell while alight- 
 ing and was injured. It was held 
 that an instruction to the jury that 
 if the conductor had no special in- 
 
 formation as to the condition of the 
 place which the plaintiflf did not 
 have the means of seeing or of 
 obtaining for herself, he was under 
 no obligation to give her any in- 
 formation in regard to it, was prop- 
 erly refused. And see Stewart v. 
 St. Paul City Ry. Co. (Minn.), 80 
 N. W. 854; Wells V. Steinway R. 
 Co., 18 App. Div. (N. Y.) 180, 45 
 N. Y. Supp. 864; Vasele v. Grant 
 St. El. R. Co., 16 Wash. 602, 48 
 Pac. 249, 9 Am. & Eng. R. Cas. 
 (N. S.) 75; Cincinnati St. Ry. Co. 
 v. Snell, 6 Am. Electl. Cas. 436, 54 
 Ohio St. 197. But failure of the 
 conductor to stop his car exactly 
 at a street crossing at v?hich the 
 passenger wishes to alight does 
 not in itself constitute actionable 
 negligence, even though the pas- 
 senger is injured in leaving the car. 
 Conway v. Lewiston & A. R. Co., 
 90 Me. 199, 38 Atl. no; Foley v. 
 Brunswick Tract. Co. (N. J.) 50 
 Atl. 340. In the cases cited, it ap- 
 peared that the passenger stepped 
 upon a loose stone in going from 
 the car to the sidewalk. For "street 
 crossing," see Schneider v. Market 
 St. Ry. Co. (Cal.), 66 Pac. 734- 
 
486 
 
 STREET SURFACE RAILROADS. 
 
 the trench and give notice or warning of the danger.^ As 
 a general rule, a passenger on alighting from a car on a 
 track parallel with the one on which the car is running is 
 bound before crossing the track to observe carefully for the 
 approach of a car on the parallel track, and his omission to 
 take any precaution is not justified by the failure of the 
 motorman on the approaching car to ring the bell or give 
 any signal of his approach. ^ When a youth or a child is 
 
 2. Wolfe V. Third Ave. R. Co., 
 67 App. Div. (N. Y.) 60s; Blake 
 V. Ferris, 5 N. Y. 48. In the case 
 first cited, an action based on in- 
 juries occasioned to a passenger on 
 alighting from a car into an open 
 trench, it appeared that the defend- 
 ant did not call the. conductor or 
 motorman, or account for their 
 absence. The court held that un- 
 der these circumstances the jury- 
 were warranted in finding negli- 
 gence on the part of the railroad 
 company either for stopping the 
 car opposite the open trench and 
 by implication inviting plaintiff to 
 alight therefrom without notice or 
 warning, or for not properly guard- 
 ing the trench which it had caused 
 to be excavated in a public street 
 for its own benefit (p. 6og), citing 
 Maverick v. Eighth Ave. R. Co., 36 
 N. Y. 378; Storrs v. Utica, 17 id. 
 104; Pettingill v. Yonkers, 116 id. 
 SS8; Deming v. Terminal Ry. of 
 Buffalo, 169 id. i. 
 
 In a recent case it appeared that 
 the car did not stop at a certain 
 street where the conductor had 
 been notified a passenger desired 
 to alight, at which there was a 
 plank roadway guarded by rails and 
 at which the cars usually stopped; 
 it was night and the car passed on 
 
 to a place where there was no pro- 
 tection and where the track passed 
 over a trestle; the conductor, know- 
 ing where the passenger was going, 
 pointed to the place, and the latter, 
 thinking it the usual stopping 
 place, alighted and fell through the 
 trestle. Held, the company was 
 guilty of negligence in carrying the 
 passenger past his destination and 
 leaving him at the dangerous place. 
 Henry v. Grant St. El. Ry. Co. 
 (Wash.), 64 Pac. 137. And see 
 Flack V. Nassau El. R. Co., 41 
 App. Div. (N. Y.) 399, 58 N. Y. 
 Supp.839; Maverick V. Eighth Ave. 
 R. Co., 36 N. Y. 378; Langin v. 
 N. Y. & B. Bridge, 10 App. Div. 
 (N. Y.) 529, 42 N. Y. Supp. 3S3. 
 3. Jonnson V. Third Ave. R. Co., 
 69 App. Div. (N. Y.) 247. Where 
 however the passenger alights and 
 passes around the rear of the car, 
 understanding that the rule of the 
 company requires that a moving 
 car on the parallel track should 
 slacken its speed on approaching a 
 car stopping to allow passengers 
 to alight, he may recover for an in- 
 jury occasioned to him by the fail- 
 ure of the approaching car to ob- 
 serve the rule. Dobert v. Troy 
 City Ry. Co., 91 Hun (N. Y.), 28, 
 71 St. Rep. (N. Y.) 392, 36 N. Y. 
 
TRESPASSERS. 487 
 
 directed to jump off the car by the conductor, who refuses 
 on request to stop,'* or when frightened with a blow from 
 the driver's whip,' his neg-ligence is a question for the jury- 
 to be determined on properly considering the age, experi- 
 ence, and understanding of the person.* 
 
 § 21. Trespassers; and newsboys. — A street car company 
 owes a trespasser no duty of protection. Its servants have 
 the right to remove him from the car, but in so doing they 
 are required to subject him to no unnecessary hazard. They 
 have no right to seize him and throw him from the car while 
 it is in motion, or to so violently assault or frighten him as 
 to cause him to fall from the car. Any act of its servants 
 which is improper, unnecessarily dangerous, and the proxi- 
 mate cause of the injury, and done for the purpose of re- 
 moving the trespasser from the car, may justify a recovery 
 of damages against the company for the injury.^ If the 
 employee use more force than is necessary, no matter whether 
 he thinks he is using excessive force or not, the company is 
 liable.* It is the duty of such carriers to prevent children 
 
 Supp. lOS, distinguishing Burke v. 249; Jackson v. St. Louis S. W. Ry. 
 
 N. Y. C, etc., Co., 7Z Hun (N. Y.), Co., 52 La. Ann. 1706, 28 So. 241; 
 
 3S; Tucker v. same, 124 N. Y. 308. N. Chicago St. R. Co. v. Olds, 165 
 
 And see Fielder v. New Jersey St. III. 472. affg. 64 111. App. 595, i 
 
 Ry. Co. (N. J. Sup.), so Atl. 533- Chic. L. J. Week. 356; Day v. 
 
 4. Wyatt V. Citizens' Ry. Co., SS Brooklyn City R. Co., 12 Hun (N. 
 Mo. 48s; Lovett V. Salem & S. D. Y.), 435; McCann v. Sixth Ave. R. 
 R. Co., 9 Allen (Mass.), 557. Co., 117 N.Y. 505; Murphy v. Cen- 
 
 5. Mettlestadt v. Ninth Ave. R. tral Park, etc., R. Co., 48 N. Y. 
 Co., 4 Robt. (N. Y.) 377. Super. Ct. 96; N. Chicago City R. 
 
 6. Washington, A. & Mt. V. El. Co. v. Gastka, 128 111. 613; Heston- 
 R. Co. V. Quayle, 95 Va. 741, 30 S. ville, etc., Ry. Co. v. Biddle, i6 
 E. 391. Atl. 488. And see same adv. same, 
 
 7. Ansteth v. B. R. Co., 14S N. 112 Pa. St. SSI, 4 Atl. 385. 
 
 Y. 210, 214, 39 N. E. 708, 64 St. 8. Citizens' St. R. Co. v. Wil- 
 
 Rep. (N. Y.) 598; Nussbaum v. loeby, 134 Ind. 563, S8 Am. & Eng. 
 Louisville Ry. Co. (Ky.), S7 S. W. R. Cas. 485, 2Z N. E. 627; Lake 
 
488 STREET SURFACE RAILROADS. 
 
 from entering their cars except under proper safeguards.^ 
 But this duty is not an absolute one; it depends upon the 
 circumstances; for example, the company is not Hable for 
 the death of a boy seventeen years old, of ordinary intelli- 
 gence, experience, and judgment, from being run over by a 
 car while running and jumping off the front platform, with- 
 out permission, for the purpose of whipping the mules draw- 
 ing the car, although his father had previously told the driver 
 to keep him ofif the car." It is not liable for an injury to a 
 boy eleven years old, who, for the purpose of stealing a ride, 
 boards the car and secretes himself so as to avoid detection, 
 unless his presence is actually known and assented to by 
 the driver or conductor; and such assent cannot be implied 
 by the mere fact that the driver observed him and did not 
 demand any fare, where it was the duty of the conductor 
 and not the driver to collect fares." It is not chargeable 
 with negligence if a person, without the knowledge of the 
 employees in charge of the car, boards it at a place other 
 than a proper stopping place, while the car is in motion, 
 and on discovering him the employees immediately attempt 
 to stop the car to prevent injury by using the care required 
 by law.'^ Operating small cars by a dummy engine, in a 
 street, at a low rate of speed, with occasional stops, without 
 directions to prevent children getting upon them, does not 
 
 Erie & W. R. Co. v. Matthews, 13 Citizens' Tract. Co., 146 Pa. St. 
 
 Ind..App. 355, 41 N. E. 842; Bab er 417, i Pa. Adv. Rep. 125, 23 Atl. 
 
 V. Broadway & S. A. R. Co., 10 345, 29 W. N. C. 288, 22 Pittsb. L. 
 
 Misc. Rep. (N. Y.) 109, 62 St. Rep. J. (N. S.) 258. 
 
 (N. Y.) 466, 30 N. Y. Supp. 931. II. Wynn v. Havana City & S. 
 
 9. N. J. Tract. Co. v. Danbech, R. Co., 91 Ga. 344, 17 S. E. 649. 
 57 N. J. L. (28 Vroom) 463, 31 Atl. And see Atchison, T. & S. F. R. 
 ^°38. Co. V. Headland, 18 Colo. 477, 58 
 
 10. Taylor v. South Covington & Am. & Eng. R. Cas. 4, 33 Pac. 185. 
 C. St. R. Co., 14 Ky. L. Rep. 355, 12. Citizens' St. Ry. Co. v. Merl, 
 20 S. W. 275. And see Wrasse v. 59 N. E. 491. 
 
trespassers; newsboys. 489 
 
 ■create a liability for the death of a child boarding the cars 
 -and being thrown or falling therefrom. '^ But it is negli- 
 gence upon the part of the carrier to allow a young child 
 trespassing upon a car to ride upon the steps of the front 
 or rear platform, when his dangerous position is actually 
 known, or the circumstances are such as would make failure 
 to know his peril palpable neglect and inattention to duty 
 on the part of those fti charge of the car.''* The company 
 is not liable for injuries sustained by a boy while getting 
 upon a car by invitation of the motorman or conductor to 
 ride in payment for his services in opening a switch for the 
 latter, contrary to the company's rules and instructions not 
 to allow others than passengers to ride.'^ But it is negligent 
 if its motorman permit a boy to play on the car and jump 
 therefrom while it is in motion.'* If the employees upon 
 the car had no reasonable opportunity to prevent the boy 
 from jumping off the platform of one car upon the opposite 
 track, where he was run over and killed, a recovery cannot 
 be had against the company. '^ So, too, there is no liability 
 where a boy eight years old steps ofif the front platform on 
 which he was standing without the knowledge of the con- 
 •ductor, while the interior of the car as well as both platforms 
 were crowded, and thus sustains injury.'* Newsboys enter- 
 
 13. Jefferson v. Birmingham Ry. Jackson v. St. Paul City R. Co., 74 
 & E. Co., 116 Ala. 294, 22 So. 546, Minn. 48, 5 Am. Neg. Rep. 47, 76 
 36 L. R. A. 4S8. And see Fein- N. W. 956. 
 
 -gold V. Phila. Tract. Co., 7 Pa. 15. Finlay v. Hudson El. R. Co., 
 
 Dist. 445, 21 Pa. Co. Ct. 183, 4 64 Hun (N. Y.), 373, 19 N. Y. Supp. 
 
 Lack. Leg. N. 290; Pope v. United 621, 46 St. Rep. (N. Y.) 202. 
 
 Tract. Co. (Pa. C. P.), 30 Pittsb. 16. Pueblo El. St. R. Co. v. 
 
 L. J. (N. S.) 62; Little Rock Tract. Sherman, 25 Colo. 114, 53 Pac. 322. 
 
 & E. Co. V. Nelson, 66 Ark. 494, 17. Hogan v. Central Park, N. & 
 
 52 S. W. 7. E. River R. Co., 124 N. Y. 647, 36 
 
 14. Wynn v. Havana City & S. St. Rep. (N. Y.) 352, 26 N. E. 95a 
 R. Co., 91 Ga. 344, 17 S. E. 649; 18. Sandford v. Hestonville, etc.. 
 
490 STREET SURFACE RAILROADS. 
 
 ing street cars for the purpose of selling papers assume all 
 the risks of ordinary negligence on the part of the company's 
 servants; they are not passengers and may be compelled to 
 leave the car to facilitate the admission of passengers j'^ and 
 the company is not liable for the -act of a motorman, having 
 no control over or authority to interfere with passengers or 
 persons on the car, in pushing a newsboy ofif the car, who 
 was getting on to sell a paper to a passenger.^" 
 
 § 22. Damages for failure to carry passenger. — If by reason 
 of accident to the car or the refusal of the conductor to ac- 
 cept a proper transfer ticket, or from any other cause for 
 which the carrier may be held' liable, injury has been sus- 
 tained by the passenger, he must find his redress in damages 
 for the breach of its contract with him. He has no right to 
 insist upon riding without paying another fare, and if ejected, 
 to bring his action against the company for the wrongful 
 assault. As was stated by the New York Court of Appeals 
 in an action to recover for a wrongful ejection because the 
 conductor in charge of the train refused to accept the ticket 
 ofifered, the passenger then knows that he cannot proceed 
 upon the ticket taken, but must resort to his remedy the 
 same as though he had been ejected. If, after this notice, 
 he waits for the application of force to remove him, he does 
 so in his own wrong; he invites the use of the force necessary 
 to remove him; and if no more is apphed than is necessary 
 to efifect the object, he can neither recover against the con- 
 ductor or the company therefor. This is the rule deducible 
 from the analogies of the law. No one has a right to resort 
 
 Co., 136 Pa. St. 84, 20 Atl. 799, 26 19. Phila. Tract. Co. v. Orbann,^ 
 
 W. N. C. 401, 48 Phila. Leg. Int. 119 Pa. St. 37. 
 ^- 20. Coll V. Toronto R. Co. 
 
 (Can.), 25 Ont. App. 55. 
 
BREACH OF CONTRACT TO CARRY. 49 1 
 
 to force to compel the performance of a contract made with, 
 him by another. He must avail himself of the remedies the 
 law provides in such case. This rule will prevent breaches 
 of the peace instead of producing them; it will leave the 
 company responsible for the wrong done by its servant with- 
 out aggravating it by a liability to pay thousands of dollars 
 for injuries received by an assault and battery, caused by 
 the faithful efforts of its servants to enforce its lawful regula- 
 tions.^' In an action against the carrier to recover damages 
 for failure to carry plaintiff within the appointed time to the 
 place for which he had taken passage, by reason whereof 
 he did not perform his errand there and was detained at ex- 
 pense and to the injury of his business at home, he must 
 produce some evidence that if he had arrived at the appointed 
 time he might have done his errand and would have promptly 
 returned, or that he could not with due effort accomplish 
 his errand by reason of his delay in arriving. He cannot 
 recover his expenses and the damages to his business during 
 a sojourn of several days without some proof as to the time 
 when he first ascertained that he could not accomplish his 
 errand and might thereafter return.''^ 
 
 § 23. Assault, etc., upon passenger by employee. — A common 
 carrier is liable to any one sustaining the relation of pas- 
 senger to it for an injury resulting from any act of its ser- 
 vants or employees, whether willful and malicious or not, 
 and even though such act is not done in the course or within 
 the scope of the servants' or agents' employment; the rule 
 that the master is not liable for injury resulting from the 
 
 21. Townsend v. N. Y. C, etc., Dillon v. Lindell R. Co., 71 Mo. 
 
 R. Co., 56 N. Y. 29s, 301; Taylor V. App. 631. 
 
 Nassau El. R. Co., 32 App. Div. 22. Benson v. N. J. R. & T. Co., 
 
 (N. Y.) 486, S3 N. Y. Supp. s; 22 N. Y. Super. Ct. (9 Bosw.) 4I2„ 
 
492 
 
 STREET SURFACE RAILROADS. 
 
 willful and malicious acts of his agents, not done within the 
 scope of their employment, is not appHcable when the injury- 
 is inflicted upon a passenger by the carrier's agent or ser- 
 vant/^ It is the duty of the carrier, not only to convey the 
 passengers safely and expeditiously between the termini of 
 the route expressed in the contract, but also to conserve, by 
 every reasonable means, his convenience, comfort, and peace 
 throughout the journey and protect him from insult, indig- 
 nities, and personal violence/^ So, an unjustifiable assault 
 upon a passenger by a railroad employee, who owes him the 
 duty of protection, renders the carrier responsible for the 
 injuries caused thereby;^'* and it matters not that the act of 
 the employee was malicious and wanton if done in the course 
 
 23. Birmingham Ry. & El. R. 
 Co. V. Baird (Ala.), 30 So. 456. 
 And see Central of Ga. Ry. Co. v. 
 Brown (Ga.), 38 S. E. 989; Hart v. 
 Met St. Ry. Co., 34 Misc. Rep. 
 (N. Y.) S2I, 69 N. Y. Supp. 906; 
 Hanson v. Urbana & C. El. St. Ry. 
 Co., 75 111. App. 474; Knoxville 
 Tract. Co. v. Lane, 103 Tenn. 376, 
 S3 S. W. SS7; Rose v. Railroad Co., 
 106 N. C. 170, II S. E. 526; La- 
 Fitte V. Railroad Co. (La.), 8 So. 
 701; Goddard v. Railway Co., 57 
 Me. 202; Craker v. Railway Co., 36 
 Wis. 657; Texas & P. Ry. Co. v. 
 Tott, 20 Tex. Civ. App. 335; Mas- 
 terson v. Railway Co., 102 Wis. 571. 
 In the case of Hanson v. Urbana 
 & C. El. St. Ry. Co., supra, it was 
 held that the company was not 
 liable for an assault committed by 
 a motorman upon a passenger after 
 he alighted from the car. 
 
 In a recent case in New York it 
 was held that where the complaint 
 in an action for assault by the car- 
 rier's employee alleged that the 
 
 plaintiff was willfully and malici- 
 ously insulted, assaulted, beaten, 
 and bruised by defendant's street 
 railway company while a passenger 
 on its line, but did not allege neg- 
 ligence on the part of defendant or 
 a failure to perform its contract, 
 the cause of action was one for as- 
 sault and battery and not within 
 the jurisdiction of the municipal 
 court under the Greater New York 
 charter, section 1364 thereof pro- 
 viding that such court shall not 
 have jurisdiction of an action for 
 damages for assault and battery. 
 Fister v. Met. St. Ry. Co., 30 Misc. 
 Rep. (N. Y.) 430, 62 N. Y. Supp. 
 467. 
 
 24. Atchison, T. & S. F. R. Co. 
 V. Henry, 55 Kan. 715, 29 L. R. A. 
 46s, 2 Am. & Eng. R. Cas. (N. S.) 
 418, 41 Pac. 952; Franklin v. Third 
 Ave. R. Co., S2 App. Div. (N. Y.) 
 512, 65 N. Y. Supp. (99 St. Rep.) 
 434; Stewart v. Brooklyn & Cross- 
 town R. Co., 90 N. Y. 588. 
 
ASSAULT BY EMPLOYEE. 
 
 49S 
 
 of the discharge of his duties to the master, which relate to 
 the passeng-er.^5 if it ^g shown that the act was previously 
 authorized or subsequently ratified by the master, or that, 
 the latter participated in the wrong, it may be chargeable 
 
 25. Eads V. Met. R. Co., 43 Mo. 
 App. 536; Fordyce v. Beecher (Tex. 
 Civ. App.), 21 S. W. 179; Tanger 
 V. S. W. Mo. El. Ry. Co., 85 Mo. 
 App. 28; Lexington Ry. Co. v. 
 Cozine (Ky.), 64 S. W. 848; Lyons 
 V. Broadway & Seventh Ave. R. 
 Co., 32 St. Rep. (N. Y.) 232, 10 
 N. Y. Supp. 237. In a recent case 
 in New York it appeared that the 
 death of plaintiff's intestate, a boy 
 fourteen years old, resulted from 
 injuries from being run over by 
 defendant's street car. He was rid- 
 ing on the front platform of one of 
 defendant's cars, was kicked from 
 the car by the motorman and fell 
 upon his back; he arose, turned 
 and walked slowly and lamely 
 across the other track, when he 
 was struck by another of the de- 
 fendant's cars which came up with- 
 out warning, at a very high rate of 
 speed. It was held that it was 
 eror for the court to dismiss the 
 complaint upon the ground that 
 there was no evidence tending to 
 show that the boy looked or lis- 
 tened before he attempted to cross 
 the track, as it might very well be 
 that the brutal treatment which the 
 boy received from the motorman 
 of the car rendered him unable for 
 the moment to exercise his facul- 
 ties with normal acuteness,and that 
 under the influence of the impaired 
 condition thus wrongfully created 
 by the defendant he could neither 
 appreciate nor avoid the impending 
 danger. Finder v. Brooklyn H. R. 
 
 Co., 6s App. Div. (N. Y.) 521. It 
 was also held that if he were 
 blameless in stepping in front of 
 the second car the jury might prop- 
 erly determine that the act of the 
 motorman in kicking him off the 
 first car was negligence imputable 
 to the defendant, wholly inde- 
 pendent of any question of negli- 
 gence in the operation of the sec- 
 ond car. Id. And see Central of 
 Ga. Ry. Co. V. Brown (Ga.), 38 
 S. E. 989. In a recent case it was. 
 also held that where the carrier, 
 after knowledge of the servant's 
 wanton assault upon a passenger, 
 retains him in employment, the act 
 is thereby ratified and the carrier 
 is liable to punitive damages. Tan- 
 ger V. S. W. Mo. El. Ry. Co., 8s 
 Mo. App. 28. A rule which should 
 make the carrier liable when the 
 act resulting in the injury was care- 
 lessly, but unintentionally done, 
 and exonerate him when the in- 
 jury was the result of the inten- 
 tional act of the servant, would 
 lead to most absurd results. By 
 such a rule a stage company who 
 should place a lady passenger un- 
 der the protection of its driver, to 
 be carried over its road, would be 
 liable if by his unskillful driving he 
 upset the coach and injured her; 
 but if, taking advantage of his op- 
 portunity, he should assault and 
 rob her, the carrier would go scot 
 free. If the porter of a sleeping 
 car, employed to guard the car 
 while the passengers sleep, should 
 
494 
 
 STREET SURFACE RAILROADS. 
 
 with punitive damages, and not otherwise.^* But the act 
 of the employee complained of must be within the line of 
 
 Jiiraself fall asleep, or, abandoning 
 his post, allow a pickpocket to en- 
 ter and rob the passengers, the 
 company would be liable; but, if the 
 guardian should himself turn pick- 
 pocket and rifle the pockets of the 
 passengers, the company would not 
 be responsible for his acts. ' The 
 carrier selects his own servants and 
 agents, and, we think, he must be 
 Tield to warrant that they are trust- 
 worthy as well as skillful and com- 
 petent. Stewart v. Brooklyn & 
 Crosstown R. Co., 90 N. Y. 588; 
 Nowack V. Met. St. Ry. Co., 166 
 id. 433, 440; Palmeri v. Manhattan 
 Ry. Co., 133 id. 261; Ranger v. 
 Great Western Ry. Co., 5 H. L. 
 Cas. 86, 87. 
 
 26. Wright V. Glens Falls, S. H. 
 & Fort E. St. R. Co., 24 App. Div. 
 (N. Y.) 617, 48 N. Y. Supp. 1026; 
 Lake Shore, etc., Ry. Co. v. Pren- 
 tice, 147 U. S. loi, 37 L. Ed. 97; 
 Cleghorn v. N. Y. C, etc., R. Co., 
 56 N. Y. 44, 48; Hagan v. Provi- 
 dence, etc., R. Co., 3 R. I. 81, 62 
 Am. Dec. 377; Bass v. Chicago, 
 etc., R. Co., 42 Wis. 654, 24 Am. 
 Rep. 437; Sullivan v. Oregon, etc., 
 R. Co., 12 Oreg. 392, S3 Am. Rep. 
 364, 21 Am. & Eng. R. Cas. 391; 
 Hayes v. Houston, etc., R. Co., 46 
 Tex. 272. In the Lake Shore case 
 cited, the court said; " Exem- 
 plary or punitive damages, being 
 awarded, not by way of compensa- 
 tion to the sufferer, but by way of 
 punishment of the oflfender, and as 
 a warning to others, can only be 
 awarded against one who has par- 
 ticipated in the offense. A princi- 
 pal therefore, though of course 
 
 liable to make compensation for 
 injuries done by his agent within 
 the scope of his employment, can- 
 not be held liable for exemplary 
 or punitive damages, merely by 
 reason of wanton, oppressive, or 
 malicious intent on the part of the 
 agent. This is clearly shown by 
 the judgment of. this court in the 
 case of The Amiable Nancy, 16 U. 
 S. (3 Wheat.) 546, 4 L. Ed. 456." 
 * * * 
 
 " No doubt, a corporation, like 
 a natural person, may be held lia- 
 ble in exemplary or punitive dam- 
 ages for the act of the agent within 
 the scope of his employment, pro- 
 vided the criminal intent, necessary 
 to warrant the imposition of such 
 damages, is brought home to the 
 corporation." Id., p. iii, 37 L. 
 Ed. 102, citing Philadelphia, W. & 
 
 B. R. Co. v. Quigley, 62 U. S. (21 
 How.) 202, 210, 16 L. Ed. 73, 75; 
 Milwaukee & St. Paul R. Co. v. 
 Arms, 91 U. S. 489, 493, 495, 23 L. 
 Ed. 374, 376: Denver & R. G. R. 
 Co. v. Harris, 122 U. S. 597, 6og, 
 610, 30 L. Ed. 1146, 1148; Caldwell 
 v. New Jersey S. P. Co., 47 N. 
 Y. 282; Bell V. Midland R. Co., 10 
 
 C. B. (N. S.) 287, 4 L. T. (N. S.) 
 293. It was also held in the Lake 
 Shore Case cited, that the passen- 
 ger (plaintifif complaining of an 
 unlawful arrest procured by the 
 conductor of the defendant, who 
 otherwise maliciously treated and 
 insulted him for the purpose of 
 humiliating and disgracing him 
 before his fellow passengers) was 
 entitled to full compensation, in- 
 cluding any additional suffering in 
 
ASSAULT BY EMPLOYEE. 
 
 495 
 
 his employment; for illustration, if he accidentally strike a 
 passenger while making a playful attempt to strike another 
 employee, the carrier is not liable.^'' A statute of New York 
 
 body or mind caused by the wan- 
 tonness or mischief on the part of 
 the conductor. And see Craker v. 
 Chicago, etc., R. Co., 36 Wis. 659; 
 Ricketts v. Chesapeake, etc., R. 
 Co., 33 W. Va. 423, 2S Am. St. 
 Rep. goi ; Dillingham v. Russell, 73 
 Tex. 47, 15 Am. St. Rep. 753; Mil- 
 waukee, etc., R. Co. V. Finney, 10 
 Wis. 388. 
 
 In a case in Maine, the court 
 said: "We confess that it seems 
 to us that there is no class of cases 
 where the doctrine of exemplary 
 damages can be more beneficially 
 applied than to railroad corpora- 
 tions in their capacity as carriers 
 of passengers; and it might as well 
 not be applied to them at all as to 
 limit its application to cases where 
 the servant is directly or impliedly 
 commanded by the corporation to 
 maltreat and insult a passenger, or 
 to cases where such an act is di- 
 rectly or impliedly ratified; for no 
 such cases will ever occur. A 
 corporation is an imaginary being. 
 It has no mind but the mind of its 
 servants; it has no voice but the 
 voice of its servants, and it has no 
 hands with which to act but the 
 hands of its servants. All of its 
 schemes of mischief, as well as its 
 schemes of public enterprise, are 
 conceived by human minds and 
 hands; and these minds and hands 
 are its servants' minds and hands." 
 Goddard v. Grand Trunk R. Co., 
 57 Me. 202, 2 Am. Rep. 39. 
 And see also Taylor v. Grand 
 Trunk R. Co., 48 N. H. 304, 4 Am. 
 Rep. 229; Jefifersonville R. Co. v. 
 
 Rogers, 38 Ind. 116, 10 Am. Rep. 
 103; Atl., etc., R. Co. V. Dunn, 19 
 Ohio St. 162, 2 Am. Rep. 382; 
 Palmer v. Charlotte, etc., Co., 3 
 S. C. 580; Kansas City, etc., R. 
 Co. V. Sanders, 98 Ala. 293, 13 So. 
 57; Galena v. Hot Springs R. Co., 
 4 McCrary (U. S.), 371; Gorman v. 
 So. Pacific R. Co., 97 Cal. i, 31 
 Fac. 1112, 33 Am. St. Rep. 157; 
 Atl., etc., R. Co. V. Condor, 75 Ga. 
 51; Lake Erie, etc., R. Co. v. Chris- 
 tison, 39 111. App. 495; Louisville, 
 etc., R. Co. V. Wolfe, 128 Ind. 347, 
 25 Am. St. Rep. 436; Kansas Pac. 
 R. Co. V. Kessler, 18 Kan. 532; 
 Phila., etc., R. Co. v. Larkin, 47 
 Md. 15s, 28 Am. Rep. 442; Forsee 
 V. Ala., G. S. R. Co., 63 Miss. 67, 
 56 Am. Rep. 801; Louisville, etc., 
 R. Co. V. Fleming, 14 Lea (Tenn.), 
 128. A street car conductor who 
 forcibly ejects a passenger from a 
 car under the honest belief that he 
 has not paid his fare is not liable 
 in a criminal prosecution for as- 
 sault and battery. State v. Mc- 
 Donald, 7 Mo. App. 510. Of 
 course the carrier, under such cir- 
 cumstances, would be liable only 
 for compensatory damages. Pine 
 V. St. Paul City R. Co. (Minn.), 52 
 N. W. 392, 52 Am. & Eng. R. Cas. 
 584, 16 L. R. A. 347. 
 
 27. Goodloe V. Memphis & C. 
 R. Co., 107 Ala. 233, 29 L. R. A. 
 729, 18 So. 166, 41 Cent. L. J. 325. 
 So, where the assault by the em- 
 ployee was upon one waiting in 
 the street in front of the carrier's 
 carhouse to take a car, and was 
 unauthorized and unratified by the 
 
496 
 
 STREET SURFACE RAILROADS. 
 
 made the owner of every carriage running or traveling upon, 
 any turnpike road or public highway for the convenience of 
 passengers liable to the party injured, in all cases, for all 
 injuries and damages done by any person in the employ- 
 ment of such owner as a driver, while driving such carriage, 
 to any person, or to the property of any person, and that 
 whether the act occasioning such injury or damage be willful 
 or negligent or otherwise, in the same manner as such driver 
 would be liable. And the Court of Appeals held that the 
 conductor of a street car is not the driver of a " carriage " 
 within the meaning of the statute.^^ A conductor, acting in 
 good faith, may request a passenger to leave the car for non- 
 payment of fare, and on his refusal eject him, provided he use 
 no more force than is reasonably necessary; and the company 
 
 carrier. McGilvray v. West End 
 St. R. Co. (Mass.), 41 N. E. 116. 
 And see LaFitte v. New Orleans, 
 L., etc., Co. (La.), 12 L. R. A. 337, 
 8 So. 701. In Central Ry. Co. v. 
 Peacock, 69 Md. 257, 14 Atl. 709, 
 the act of the street car driver 
 complained of was committed just 
 as the passenger left the car and 
 had gotten to the sidewalk for the 
 purpose of making a complaint at 
 the company's office against the 
 driver; and it was held that the 
 company was not responsible al- 
 though the assault was prompted 
 by a quarrel between the driver and 
 the passenger before the latter left 
 the car. It was suggested too that 
 if while the car stopped momenta- 
 rily before the office the passenger 
 stepped out for the special purpose 
 of making complaint, intending to 
 return and resume his journey, to 
 the knowledge of the company's 
 servants in charge of the car, he 
 
 might still have retained the rela- 
 tion of a passenger to the company 
 and be entitled to all legal rights 
 as such as fully as if he had re- 
 mained within the car. See also 
 Keokuk Northern Line, etc., Co. 
 V. Drew, 88 111. 608; Jefifersonville, 
 M. & I. R. Co. V. Riley, 39 Ind. 
 S68; State v. Grand Trunk Ry. Co., 
 58 Me. 176. In one case the as- 
 sault was committed by the con- 
 ductor while the passenger was in 
 the car and repeated shortly after- 
 ward at the office of the company 
 whither the passenger had gone to 
 make complaint to the superintend- 
 ent, and it was impossible to deter- 
 mine from the evidence where the 
 most serious wounds had been in- 
 flicted. Of course the company 
 was liable. Savannah St. R. Co. v. 
 Bryan, 86 Ga. 312, 12 S. E. 307. 
 
 28. Isaacs V. Third Ave. R. Co., 
 47 N. Y. 122. 
 
ASSAULT BY EMPLOYEE. 
 
 497 
 
 cannot be made liable therefor."^' And the rule that the cor- 
 poration is responsible for the willful acts of its employees 
 while in the line of the discharge of their duty does not apply 
 to a case where a passeng-er commences an altercation with 
 the street car driver and thus produces an assault by the 
 driver.^" The carrier is never Uable for an injury done to a 
 passenger by an employee in self-defense.^' 
 
 29. Chicago & E. I. R. Co. v. 
 Casazza, 83 111. App. 421. 
 
 30. Scott V. Central Park, N. & 
 E. River R. Co., S3 Hun (N. Y.), 
 414, 24 St. Rep. (N. Y.) 754, 6 N. 
 Y. Supp. 382. 
 
 31. New Orleans & N. E. R. Co. 
 V. Jopes, 142 U. S. 18, 35 L. Ed. 
 919, II Ry. & Corp. L. J. 41, 12 
 Sup. Ct. Rep. 190. In this case the 
 court said: "It is not every as- 
 sault by an employee that gives to 
 the passenger a right of action 
 against the carrier. Suppose a pas- 
 senger is guilty of grossly inde- 
 cent language and conduct in the 
 presence of lady passengers, and 
 the conductor forcibly removes 
 him from their presence, there is 
 no misconduct in such removal; 
 and if only necessary force is used, 
 nothing -which gives to the party 
 any cause of action against the car- 
 rier. In such a case, the passenger, 
 by his own misconduct, has broken 
 the contract of carriage, and he has 
 no cause of action for injuries 
 which result to him in consequence 
 thereof. ■ He has voluntarily put 
 himself in a position which casts 
 upon the employee both the right 
 and duty of using force. * * * 
 
 " There is no misconduct when 
 the conductor uses force and does 
 injury in simple self-defense; and 
 the rules which determine what is 
 
 32 
 
 self-defense are of universal appli- 
 cation and are not affected by the 
 character of the employment in 
 which the party is engaged. Indeed, 
 while the courts hold that the lia- 
 bility of a common carrier to its 
 passengers for the assaults of its 
 employees is of a most singular 
 character, far greater than that of 
 ordinary employers for the actions 
 of their employees, yet they all 
 limit the liability to cases in which 
 the assault and injury are wrong- 
 ful." 
 
 A passenger on a street car can- 
 not recover for abusive language 
 addressed to him by the conductor, 
 or for the act of the latter in knock- 
 ing him down after he had left the 
 car, where the offensive language 
 was used and the blow struck in 
 response to abuse and assault by 
 the passenger, who was the ag- 
 gressor. Wise V. South Coving- 
 ton & C. R. Co., 17 Ky. L. Rep. 
 I3S9> 34 S. W. 894. But the insult 
 and wrong to justify the act of the 
 employee must be real and not 
 fancied. Texas & P. R. Co. v. 
 Williams (C. C. App. 5th C), 10 
 C. C. A. 463, 62 Fed. 440. An as- 
 sault by him is not excused or the 
 liability of the carrier defeated by 
 the fact that the passenger had used 
 grossly profane and abusive lan- 
 guage to the conductor without 
 
498 
 
 STREET SURFACE RAILROADS. 
 
 § 24. Assault, etc., upon passenger by stranger. — A railway 
 carrier of passengers must, under an implied police power 
 to prevent an abuse by passengers of their privileges, exer- 
 cise the highest diligence reasonably practicable to protect 
 passengers from violence, abuse, or injury from fellow pas- 
 sengers.3^ But to make the carrier liable it must be made to 
 appear that the conduct of the particular passenger who 
 caused the injury was such as to have made it the duty of the 
 employees of the company to exclude him before the injury 
 occurred.^3 So the unusual rude and hasty act of a stranger 
 in rushing through a door of a car, thereby violently striking 
 a person on the other side, does not render the carrier liable.^* 
 
 provocation. Baltimore & O. R. 
 Co. V. Barger, 80 Md. 23, 26 L. R. 
 A. 220, 30 Atl. 560. If he beat the 
 passenger who slaps his face with 
 his hand, and in so doing uses 
 force greatly exceeding that which 
 would appear to a reasonable man 
 necessary to repel the assault, the 
 carrier is liable. St. Louis, S. W. 
 R. Co. V. Berger, 64 Ark. 613, 44 
 S. W. 809, 39 L. R. A. 784; and see 
 Galveston, H. S. Ry. Go. v. La 
 Prelle (Tex. Civ. App.), 65 S. W. 
 488. 
 
 32. Mullan V. Wis. C. R. Co., 46 
 Minn. 474, 5 Am. R. & Corp. Rep. 
 ig, 47 Am. & Eng. R. Cas. 649, 10 
 Ry. & Corp. L. J. 254, 49 N. W. 
 249; Libby v. Maine C. R. Co., 85 
 Me. 34, 20 L. R. A. 812, 58 Am. 
 & Eng. R. Cas. 81, 26 Atl. 943; 
 Illinois C. R. Co. v. Miner, 69 
 Miss. 710, 16 L. R. A. 627, 52 Am. 
 & Eng. R. Cas. 441, 11 So. loi; 
 Partridge v. Woodland S. Co. (N. 
 J.), 49 Atl. 726. But see Pounder 
 V. Northeastern R. Co., i Q. B. 
 38s, II Ry. & Corp. L. J. 278. 
 
 33. So held in Louisville & N. R. 
 Co. V. McEwan, 17 Ky. L. Rep. 
 406, 2 Am. & Eng. R. Cas. (N. S.) 
 438, 31 S. W. 365. A carrier is not 
 liable for an injury to a passenger 
 by another passenger shoving him 
 in the way of a third passenger who 
 is being ejected from the car, al- 
 though the act is done in the pres- 
 ence and with the knowledge of 
 the conductor. Springfield Consol. 
 R. Co. v. Flynn, 55 IlL App. 600; 
 International & G. N. R. Co. v. 
 Miller (Tex. Civ. App.), 28 S. W. 
 233. Writ of error denied in 87 
 Tex. 430, 29 S. W. 23s; Wright v. 
 Chicago, B. & Q. R. Co., 4 Colo. 
 App. 102, 35 Pac. 196. 
 
 34- Graeflf v. Phila. & R. Co., 161 
 Pa. St. 230, 23 L. R. A. 606, 34 W. 
 N. C. 384, 28 Atl. 1 107, 25 Pittsb. 
 L. J. (N. S.) 37. And see Chicago 
 City R. Co. V. Considine, 50 111. 
 App. 471. The carrier is not liable 
 for her injuries to a lady passenger 
 whose light gauzy summer dress is 
 ignited on an open street car by a 
 match carelessly thrown by another 
 
ASSAULT BY STRANGER. 499 
 
 But if the conductor know or have reason to believe that a 
 passenger is a dangerous lunatic, it is his first duty to take 
 proper action at once for the security and protection of the 
 other passengers against his violence, and failing to discharge 
 such duty, to communicate to the other passengers the facts 
 within his knowledge, showing or tending to show that they 
 are riding in a car with a violently insane man, under no 
 guard or restraint, to the end that they themselves may take 
 suitable precautions for their safety.^s Insult to and abuse 
 of a passenger by a drunken and disorderly fellow passenger, 
 which the conductor permits to continue in his presence with- 
 out interference, renders the carrier liable for damages.^* And 
 it is negligence in the carrier if its servants permit a drunken 
 and disorderly passenger once ejected from the street car to 
 re-enter the car, although the conductor had no reason to 
 suppose he would again assault a passenger.^' But the mere 
 
 passenger after lighting a cigarette, mond & D. R. Co. v. Jefferson, 89 
 
 unless it appear that the servant in Ga. S44. I7 L. R. A. 571; Meyer v. 
 
 charge of the car had reason to be- St. Louis, I. M. & S. R. Co., 54 
 
 lieve that the act would be done. Fed. 116; St. Louis, A. & T. R. 
 
 Sullivan v. Jefferson Ave. R. Co., Co. v. Mackie, 71 Tex. 491, i L. 
 
 133 Mo. I, 32 L. R. A. 167, 34 S. R. A. 667; Louisville & N. R. Co. 
 
 W. 566; Furgason v. Citizens' St. v. Finn, i6 Ky. L. Rep. 57. 
 
 R. Co., 16 Ind. App. 171, 44 N. E. 36. Lucy v. Chicago, G. W. R. 
 
 •936; Randall v. Frankford, S. & C. Co., 64 Minn. 7, 31 L. R. A. 551, 
 
 P. Pass. R. Co., 139 Pa. St. 464; 65 N. W. 944. But the carrier is 
 
 "Sheridan v. Brooklyn, etc., R. Co., not liable to a passenger for inju- 
 
 .36 N. Y. 39, 34 How. Pr. (N. Y.) ries received by reason of being 
 
 217. But see Kreusen v. Forty- tripped by a drunken passenger 
 
 second St., etc., R. Co., 13 N. Y. who is being ejected from the car 
 
 Supp. 588; Lott v. New Orleans by the conductor exercising due 
 
 City, etc., R. Co., 37 La. Ann. care. Cobb v. Boston El. Ry. 
 
 227. (Mass.), 60 N. E. 476. And see 
 
 35. St. Louis, L M. & S. R. Co. Kinney v. Louisville & N. R. Co., 
 
 V. Meyer (C. C. App. 8th C), 40 99 Ky. 59, 17 Ky. L. Rep. 1405, 34 
 
 U. S. App. 554, 23 C. C. A. 100, S. W. 1066. 
 
 77 Fed. 150. And see Rommel v. 37- United Ry. & El. Co. v. State 
 
 :Shambacher, 120 Pa. St. 579; Rich- (Md.), 49 Atl. 923. 
 
500 STREET SURFACE RAILROADS. 
 
 presence of an intoxicated passenger is not presumed to be 
 dangerous to other passengers. There is no such privity be- 
 tween a railway company and a passenger as to make it liable 
 for a wrongful act of the passenger upon any principle.^^ But 
 a railroad company has the power of refusing to receive as a 
 passenger, or to expel any one who is drunk, disorderly, or 
 riotous, or who so demeans himself as to endanger the safety 
 or interfere with the reasonable comfort and convenience of 
 the other passengers, and may exercise all necessary power 
 and means to eject from the cars any one so imperiling the 
 safety of or annoying others; and this police power the con- 
 ductor, or other servant of the company in charge of the car, 
 is bound to exercise with all the means he can command 
 whenever occasion requires. If this duty is neglected without 
 good cause and a passenger receive injury which might have 
 been reasonably anticipated or naturally expected, from one 
 who is improperly received or permitted to continue as a 
 passenger, the carrier is responsible, ^s If there be no con- 
 ductor upon the car and a passenger is injured in a riotous 
 fight among other passengers, it is for the jury to say from all 
 the facts whether the company was negligent in failing to 
 have a conductor, or whether the driver of the car was negli- 
 gent in the performance of his duty."*" 
 
 § 25. Ejection by employee. — A carrier must see that its pas- 
 senger is not exposed to the indignity of a public ejection 
 from the car during the progress of the trip for which the 
 carrier has agreed to carry him through the negligence or 
 
 38. Pittsb., F. W. & C. R. Co. V. (N. S.) 383, revg. 36 N. Y. Super. 
 
 Hinds, 53 Pa. St. 512. Q. (4 J. & S.) 195. 
 
 39- Putnam v. Broadway & Sev- 40. Holly v. Atl. St. R. Co., 61 
 
 enth Ave. R. Co., 55 N. Y. 108, &a. 215. 
 113, 14 Am, Rep. 190, 15 Abb. Pr. 
 
EJECTION. 
 
 501 
 
 mistake of its agent in refusing a proper tender of fare, or in 
 assuming that he had not paid his fare/' But the carrier has 
 the right to eject the passenger for nonpayment of fare, using 
 no unnecessary force; and this right is not affected by any 
 behef the passenger may have as to his right to ride on an 
 expired ticket which he has tendered and which has been 
 refused."*^ If the passenger pay his own fare, but refuse to 
 pay the fare of a child under his care, for whom a fare could 
 be exacted, such refusal will justify his expulsion, though he 
 himself is a minor.« In expelling a passenger the carrier 
 must take reasonable care to see that he is not injured, and 
 
 41. Kiley v. Chicago City R. Co., 
 90 111. App. 27s; affd., 189 111. 384, 
 59 N. E. 794. In the case cited it 
 appeared that the agent of the de- 
 fendant had given the plaintiff, the 
 passenger, by mistake a wrong 
 ticket or transfer. 
 
 42. Rudy V. Rio Grande, W. R. 
 Co., 8 Utah, 165, 52 Am. & Eng. R. 
 Cas. 351, 30 Pac. 366, 12 Ry. & 
 Corp. L. J. 124; Elmore v. Sands, 
 54 N. Y. 512. A street car pas- 
 senger receiving from the driver a 
 package of nickels marked " Fifty 
 Cents," containing however but 
 forty-five cents, in exchange for a 
 fifty cent piece, cannot be lawfully 
 ejected for refusing to put five 
 cents in the box, although he is 
 assured by the driver that if he will 
 put the fare in the box the mistake 
 •will be corrected at the office of 
 the company. Curtis v. Louisville 
 City R. Co., 94 Ky. 573, 21 L. R. A. 
 649, 23 S. W. 363, IS Ky. L. Rep. 
 351- And see Corbett v. Twenty- 
 third St. Ry. Co., 42 Hun (N. Y.), 
 587. A passenger on a car secured 
 a transfer to another line of the 
 
 sanje carrier and was directed by 
 the conductor, who issued it, to 
 take a certain car, the conductor of 
 which informed him that the trans- 
 fer was not good and asked plain- 
 tiff if he was not going to get oflf 
 and took him by the arm and 
 roughly pulled him on to the pave- 
 ment. Held, a verdict for plaintiff 
 was justified. Hayter v. Bruns- 
 wick Tract. Co. (N. J. Sup.) 49 
 Atl. 714. But a street railroad is 
 not liable for ejecting a person 
 presenting a transfer ticket from 
 a connecting road which is not 
 acceptable under the reasonable 
 rules of the company, where a 
 mistake in issuing the same was 
 made by an employee of the con- 
 necting road, there being no com- 
 munity of interest between the two 
 companies and the business of each 
 being independent. Jacobs v. 
 third Ave. R. Co., 34 Misc. (N. 
 Y.) 512, 69 N. Y. Supp. 981'; revg. 
 68 N. Y. Supp.' 623. 
 
 43. Warfield v. Louisville & N. 
 R. Co. (Tenn.), 55 S. W. 304. 
 
502 STREET SURFACE RAILROADS. 
 
 if the expulsion is made while the car is in motion and the 
 passenger sustains injury thereby which he would not have 
 sustained had he been ejected while the car was at a stand 
 still, the company is liable for the injury. The mere fact that 
 the car is in motion at the time of the expulsion will not 
 justify a recovery against the carrier for any injury which may 
 result. It must appear that the injury solely resulted from 
 the ejection while the car was in motion, or from the negli- 
 gence of the carrier; generally it is a question for the jury.'** 
 But the expulsion of the passenger while the car is in motion 
 is apparently so dangerous an act that it may justify the same 
 resistance on the part of the' passenger as if it were a direct 
 attempt to take his life; and such resistance will not be 
 deemed to present a case of concurrent negligence on his 
 part.*5 Any disorderly conduct, like the use of indecent or 
 profane language which might constitute a breach of the 
 peace, for which a person might be fined or imprisoned, will 
 justify the conductor of a street car in ejecting the ofifender;"** 
 
 44. Cleveland City Ry. Co. v. ligence on the part of the carrier 
 Roebeck, 22 Ohio C. C. 99, 12 O. to compel a small child, though a 
 
 C. D. 262; Lovettv. Salem & South trespasser, to jump from the plat- 
 
 D. R. Co., 9 Allen (Mass.), 537. form of a moving car. Biddle v. 
 It is for the jury, even though it Hestonville, etc., Ry. Co., 112 Pa. 
 appear the passenger was intoxi- St. 551; Pittsb., etc., Ry. Co. v. 
 cated. Healey v. City Pass. R. Donahue, 70 id. 119. And see 
 Co., 28 Ohio St. 23; Murphy v. Day v. Brooklyn City R. Co., 12 
 Union R. Co., 118 Mass. 228; Flynn Hun (N. Y.), 435; afifd., 76 N. Y. 
 V. Central Park, etc., R. Co., 49 N. 593; Union Pac. R. Co. v. Mitchell, 
 Y. Super. Ct. 81; Oppenheimer v. 56 Kan. 324, 43 Pac. 244. 
 Manhattan R. Co., 45 St. Rep. (N. 46. Robinson v. Rockland, T. & 
 Y.) 134, 18 N. Y. Supp. 411. C. R. Co., 87 Me. 387, 32 Atl. 994, 
 
 45- Sanford v. Eighth Ave. R. 29 L. R. A. 530. It was held that 
 Co., 23 N. Y. 343. And see Hig- the passenger in a crowded street 
 gins V. Watervliet Tp. Co., 46 car in which there were many la- 
 id. 23; Isaacs v. Third Ave. R. Co., dies, being requested by the con- 
 47 id. 122; Chicago City Ry. Co. ductor to stop swearing and deny- 
 V. Pelletier, 134 111. 120, 24 N. ing his guilt and calling the con- 
 
 E. 770. As matter of law, it is neg- ductor " a damned liar," etc.. 
 
EJECTION. 
 
 503 
 
 SO will his refusal, upon request, to remove his feet from the 
 cushions of the seats ;*' so will his violation of any reasonable 
 rule of the company which is called to his attention/^ If the 
 passenger be so intoxicated as to make it reasonably certain 
 that by act or speech he will become obnoxious or annoying 
 to other passengers, although he has committed no act of 
 ofJense or annoyance, he may be ejected/^ If a carrier's 
 
 should be ejected from the car, 
 even if the conductor was first in 
 error in charging him with pro- 
 fanity. And see Flynn v. Central 
 Park, etc., R. Co., 49 N. Y. Super. 
 Ct. 81; Chicago City Ry. Co.v.Pel- 
 letier, 134 111. 120, 24 N. E. 770; 
 Eads V. Met. Ry. Co., 43 Mo. App. 
 536; Chicago, B. & Q. R. Co. 
 V. Griffin, 68 111. 499. On the 
 question whether he was guilty of 
 disorderly conduct, in an action for 
 his ejection, it is error to admit 
 evidence that after he was ejected 
 he was arrested and charged with 
 disorderly conduct at the time of 
 the ejection and was acquitted. 
 Vadney v. Albany Ry., 47 App. 
 Div. (N. Y.) 207, 62 N. Y. Supp. 
 140. That a passenger leaves his 
 seat to protest with the conductor 
 against what he considers unneces- 
 sary roughness in handling an in- 
 toxicated person does not consti- 
 tute a waiver of his rights as a pas- 
 senger, freeing the company from 
 liability for the conductor's act in 
 ejecting him. Weber v. Brooklyn, 
 Q. C. & S. R. Co., 47 App. Div. 
 (N. Y.) 306, 62 N. Y. Supp. I. 
 
 47. Davis V. Ottawa El. R. Co. 
 (Can.), 28 Ont. 654; Louisville & 
 N. R. Co. V. Logan, 88 Ky. 232, 
 3 L. R. A. 80; Gulf C. & S. F. R. 
 Co. V. Adams, 3 Tex. App. Civ. 
 
 Cas., § 422, p. 493; Railway Co. v. 
 Valleley, 32 Ohio St. 345, 30 Am. 
 Rep. 601. 
 
 48. Gulf C. & S. F. R. Co. V. 
 Moody, 3 Tex. Civ. App. 622; Mc- 
 Millan V. Federal St., etc., R. Co., 
 172 Pa. St. 523, 33 Atl. 560, 37 W. 
 N. C. 543, 26 Pittsb. L. J. (N. S.) 
 303; Fort Clark St. R. Co. v. 
 Ebaugh, 49 III. App. 582; Mont- 
 gomery V. Buffalo Ry. Co., 24 App. 
 Div. (N. Y.) 454, 48 N. Y. Supp. 
 849. See 158 N. Y. 708; Meyer v. 
 Second Ave. R. Co., 8 Bosw. (N. 
 Y.) 30s. 
 
 49. Edgerly v. Union St. R. Co., 
 (f; N. H. 312, 36 Atl. 558; Vinton 
 V. Middlesex, 11 Allen (Mass.), 304, 
 87 Am. Dec. 714; Murphy v. Union 
 R. Co., 118 Mass. 228, 230. A 
 peaceful drunken person, kicked ofif 
 the platform of a street car, may 
 recover for his injuries. Texas & 
 P. R. Co. V. Edmond (Tex. Civ. 
 App.), 29 S. W. 518. Although 
 the passenger is sick and his of- 
 fensive conduct is not willful or 
 voluntary, it will not affect the 
 right of the carrier's servants to 
 remove him. Proper care how- 
 ever must be exercised for his pro- 
 tection and safety upon jjemoval. 
 Conolly V. Crescent City R. Co., 
 41 La. Ann. 57, 6 So. 536. 
 
504 STREET SURFACE RAILROADS. 
 
 servant uses more force than is necessary to eject the pas- 
 senger, the company will be liable.^" But where the violence 
 was due to conduct of the party ejected, calculated to arouse 
 the conductor's resentment and render him unfit for the 
 proper discharge of his duties, the carrier is not liable for 
 the excessive force used. 5' A person rightfully on the car 
 has the right to refuse to be ejected from it and to make a 
 sufHcient resistance to being put off to denote that he is being 
 removed by expulsion and against his will.^^ If not right- 
 fully on the car and he resists ejection and the injury happens 
 and can be attributed, in part at least, to his own wrongful 
 conduct, the carrier is not responsible. '^ One wrongfully 
 ejected from a street railway car is entitled to recover, al- 
 though no actual personal injury is suffered." The conductor 
 is not justified in any case in ejecting a person from his car 
 under circumstances which makes such ejection dangerous 
 to life or limb.^s But tlie carrier ovres no duty to a trespasser 
 ejected from its train to provide shelter, or see that he incurs 
 
 50. Haman v. Omaha Horse R. 98 Mich, i, 56 S. W. 1039; Pittsb., 
 
 Co., 35 Nebr. 74, 52 N. W. 830; etc., R. Co. v. Russ (C. C. App. 
 
 Schaefer v. North Chicago St. R. 7th C), 6 C. C. A. 597, 57 Fed. 
 
 Co., 82 111. App. 473; Burns v. 822. 
 
 Glens Falls, etc., R. Co., 4 App. 53. McCullen v. N. Y. & N. S. 
 
 Div. (N. Y.) 426, 38 N. Y. Supp. R. Co., 68 App. Div. (N. Y.) 269. 
 
 856; Lake Erie & W. R. Co. v. 54. Light v. Harrisburg & M. El. 
 
 Matthews, 13 Ind.. App. 355, 41 N. R. Co., 4 Pa. Super. Ct. 427, 40 W. 
 
 E. 842; Galveston, etc., R. Co. v. N. C. 352; Rown v. Christopher & 
 
 McMonigal (Tex. Civ. App.), 25 Tenth St. R. Co., 34 Hun (N. Y.), , 
 
 S. W. 341; Hamilton v. Third Ave. 471; Pennsylvania Co. v. Bray, 125 
 
 R. Co., 53 N. Y. 25, revg. 35 N. Ind. 229, 25 N. E. 439; Lyons v. 
 
 Y. Super. Ct. (3 J. & S.) 118, 13 Broadway & Seventh Ave. R. Co., 
 
 Abb. Pr. (N. S.) 318; Jackson v. 32 St. Rep. (N. Y.) 232, 10 N. Y. 
 
 Second Ave. R. Co., 47 N. Y. 274; Supp. 237; North Chicago St. R. 
 
 Tanger v. S. W. Mo. El. Ry. Co., Co. v. Gastka, 128 111. 613, 21 N. 
 
 85 Mo. App. 528. E. 521, 4 L. R. A. 481. 
 
 SI- City El. R. Co. V. Shrop- 55. Chicago City R. Co. v. Pel- 
 
 shire, no Ga. 33, 28 S. E. 508. letier, 33 HI. App. 455. And see 
 
 52. Lucas v. Michigan C. R. Co., 134 111. 120. 
 
PARCELS LEFT IN CAR. 505 
 
 no risk from the inclemency of the weather or the fury of the 
 elements other than that of common humanity to abstain 
 from unnecessary violence or from exercising its right under 
 circumstances savoring of harshness and cruelty, s^ That the 
 passenger left the car at the command of the conductor and 
 without waiting to be forcibly expelled does not prevent his 
 action for injuries if the expulsion were wrongful; and the 
 humiliation and injury to his feelings caused by the insulting 
 remarks of the conductor may enhance his damages." 
 
 § 26. Care of parcels left in car.— Whether the passenger is 
 ejected or whether from any other cause he inadvertently 
 leaves a parcel in the car, it is matter ordinarily of regulation 
 for the carrier company that its employees should take charge 
 of it. It is a matter of ordinary convenience for passengers 
 to carry with them light and portable articles, and neces- 
 sarily of very common occurrence that they should occasion- 
 ally leave such articles behind them on quitting the cars. The 
 carrier should make it the duty of its conductors to take 
 charge of property so left, and should provide a place for its 
 safe-keeping where the owner may apply for it; thereby the 
 security of travel by street cars is materially enhanced; and 
 where such a general regulation is adopted, it must be deemed 
 
 S6. Burch V. Bait. & P. R. Co. Y.) 109, 63 N. Y. Supp. 645; Ray 
 
 (D. C. App.), 22 Wash. L. Rep. v. Cortland & H. Tract. Co., 19 
 
 401, 3 App. D. C. 346, 26 L. R. A. App. Div. (N. Y.) 530, 46 N. Y. 
 
 129. As to exposure of ejected Supp. 521; Consol. Tract. Co. v. 
 
 drunken passenger to danger, see Taborn, 58 N. J. L. (29 Vroom) i; 
 
 Roseman v. Carolina C. R. Co.. affd., id. 408, 2 Am. & Eng. R. 
 
 112 N. C. 709, 19 L. R. A. 327, 16 Cas. (N. S.) 124, 32 Atl. 685; Cen- 
 
 S. E. 766; Louisville & N. R. Co. tral R. & Bkg. Co. v. Roberts, 91 
 
 V.Johnson, 108 Ala. 62, 31 L. R. A. Ga. 513, 18 S. E. 315; Watson v. 
 
 372. 19 So. 51. Oswego St. R. Co., 7 Misc. Rep. 
 
 57- Eddy v. Syracuse Rapid- (N. Y.) 562, 58 St. Rep. (N. Y.) 
 
 Transit Ry. Co., 50 App. Div. (N. 356, 28 N. Y. Supp. 84. 
 
506 STREET SURFACE RAILROADS. 
 
 as much a part of the railroad company's business as the 
 carriage of the passenger. It does not engage for the carriage 
 of property of the kind, and does not incur respecting it the 
 extraordinary Hability which the law imposes upon common 
 carriers, but the existence of the regulation it has adopted 
 shows that it has undertaken, as incidental to its business, to 
 take charge of the parcel, if left in the cars, when the fact is 
 brought to its knowledge, and the specific compensation 
 which it receives for the carriage of the passenger is sufficient 
 to constitute it a bailee for hire while the property remains 
 in its custody. 5* In Pennsylvania a case arose in which it 
 appeared that the passenger inadvertently left a pocket-book 
 containing more than $ioo in money in the car, which the 
 conductor delivered to the proper representative of the car- 
 rier; the finding of the pocket-book was advertised and 
 nobody appearing to claim it for a year, the conductor find- 
 ing it demanded a return of it and its contents to himself, and 
 upon refusal to deliver, brought suit, and it was held that he 
 was entitled to recover the valuers 
 
 § 27. False arrest. — If an illegal arrest and a false imprison- 
 ment be made upon the charge of a conductor of a street car 
 
 S8. Morris V. Third Ave. R. Co., I pany; that where property so 
 
 Daly (C. P. N. Y.), 202,205. In the comes into the possession of the 
 
 case cited, the plaintiff had left carrier through the owner's neglect 
 
 her satchel in the car containing or inadvertence, and where the 
 
 articles valued at $100. The con- carrier may not know to whom it 
 
 ductor's attention being called to belongs or by whom it was left, it 
 
 the fact, he took charge of it, and should not be held responsible for 
 
 upon the return trip placed it in delivering it to the wrong person, 
 
 the care of the carrier's receiver if it has exercised all the care and 
 
 of such articles, by whom it was vigilance that could reasonably be 
 
 delivered to a person who had no expected of it under the circum- 
 
 right or claim to it; and it was stances. 
 
 held that it was a question for the 59. Tatum v. Sharpless (Pa.), 6 
 
 jury as to whether there was neg-. Phila. 18. ' 
 
 gence on the part of the com- 
 
FALSE ARREST. 
 
 5or 
 
 of a passenger without- a warrant, the carrier is liable if the 
 conductor acted within the line of his employment.^" A 
 statute giving the conductor all the powers of a conservator 
 of the peace while in charge of the car does not relieve the 
 carrier from liability for false imprisonment of a passenger 
 made or caused to be made by him.*' But the carrier is not 
 liable for a malicious prosecution and false imprisonment of 
 a passenger caused to be arrested by its conductor on a 
 charge, say for passing counterfeit money, unless the con- 
 
 60. Atchison, T. & S. F. R. Co. 
 V. Henry, S5 Kan. 715, 2 Am. & 
 Eng. R. Cas. (N. S.) 418, 41 Pac. 
 952, 29 L. R. A. 46s; King v. 111. 
 C. R. Co., 69 Miss. 245, ID So. 
 42; Hoffman v. N. Y. C, etc., R. 
 Co., 87 N. Y. 25 ; Krulevitz v. East- 
 ern R. Co., 143 Mass. 228, 9 N. 
 E. 613; White V. Twenty-third St. 
 R. Co., 20 Week. Dig. (N. Y.) 510; 
 Rown V. Christopher & Tenth St. 
 R. Co., 34 Hun (N. Y.), 471; Shea 
 V. Manhattan R. Co., 27 St. Rep. 
 (N. Y.) S3, 7 N. Y. Supp. 497, affg. 
 15 Daly, 528, 8 N. Y. Supp. 332, 
 29 St. Rep. (N. Y.) 313. 
 
 61. Gillingham v. Ohio River 
 R. Co., 35 W. Va. 588, 14 S. E. 
 243, 14 L. R. A. 798. Where a 
 policeman, called by the conductor 
 of the car, arrested a passenger 
 and took him off on ithe charge 
 of riding without payment of fare, 
 the carrier was not liable for 
 false imprisonment, since the con- 
 ductor had been authorized only 
 to put delinquent passengers off 
 the car. Little Rock Tract. & E. 
 Co. V. Walker, 64 Ark. 144, 45 S. 
 W. 57, 40 L. R. A. 473. And see 
 Central R. Co. v. BreWer, 78 Md. 
 394, 27 L. R. A. 63, 28 Atl. 615; 
 
 Mali V. Lord, 39 N. Y. 381, lOO 
 Am. Dec. 348; Pressley v. Mobile 
 & G. R. Co., 15 Fed. 199; Eastern 
 Co. R. Co. V. Broom, 6 Exch. 314; 
 Poultan V. London & S. W. R. 
 Co., L. R., 2 Q. B. 534; Allen 
 V. London & S. W. R. Co., L. R., 
 6 id. 65. Where the passenger had 
 purchased a ticket for passage 
 upon defendant's railway and en- 
 tered his car, and before reaching 
 his destination lost his ticket, and 
 attempting to pass through the 
 gate from the station platform was 
 stopped by the gatekeeper and 
 told he could not pass until he 
 produced a ticket, or paid his fare, 
 and he stated his loss; neverthe- 
 less, the gatekeeper sent for a 
 police officer and ordered his ar- 
 rest, and it appearing that the de- 
 fendant had given orders to its 
 gatekeepers not to let passengers 
 pass out until they either paid their 
 fares or showed tickets, in an ac- 
 tion for false imprisonment it was 
 held that the detention was un- 
 lawful, and that defendant was 
 responsible for the acts of the gate- 
 keeper. Lynch v. Met. El. R. 
 Co., 90 N. Y. 77, 43 Am. Rep. 
 141. 
 
508 STREET SURFACE RAILROADS. 
 
 ductor acted within the scope of his authority, express or 
 impUed, or the carrier ratified his proceedings/^ 
 
 § 28. Injury to passenger in collision with other vehicle. — 
 
 In its relation to persons other than passengers or employees 
 upon the car, the law requires ordinary care upon the part of 
 the carrier, but does not require such extraordinary care as 
 may be, under some circumstances, necessary to avoid run- 
 ning into vehicles upon its tracks.*^ But as to passengers 
 the carrier is bound to exercise the greatest diligence to 
 secure them safe transportation and to prevent collision with 
 a car upon a crossing track, or with any other vehicle. The 
 driver of a horse car might well be found guilty of negligence 
 in approaching the crossing of another railroad track at a 
 rate of speed which would not enable him to stop his car 
 almost instantly upon discovering another car approaching 
 on such track; and if he do approach at such a slackened 
 
 62. Knight V. N. Met. T. Co. acting within the scope of his em- 
 (Q. B.), 7 Law T. Rep. 227; Cun- ployment, and the carrier is liable 
 ningham v. Seattle El. L. & P. for false imprisonment and slan- 
 Co., 3 Wash. 471, 28 Pac. 745; La der, if the charges were false and 
 Fitte V. New Orleans & Lake R. the detention was unlawful. Pal- 
 Co. (La.), 12 L. R. A. 337, 8 So. meri v. Manhattan R. Co., 133 N. 
 701 ; Mulligan v. N. Y. & R. B. R. Y. 261, 40 St. Rep. (N. Y.) 894, 30 
 Co., 129 N. Y. 506, 42 St. Rep. (N. N. E. looi, 16 L. R. A. 136. And 
 Y.) 83, 29 N. E. 952, 14 L. R. A. see Nowack v. Met. St. Ry. Co., 
 791- But it has been held that a 166 N. Y. 433; Barry v. Third Ave. 
 ticket agent who follows a woman R. Co., 51 App. Div. (N. Y.) 385, 
 who has bought a ticket out upon 64 N. Y. Supp. (98 St. Rep.) 615; 
 the platform and charges her Lezensky v. Met. St. Ry. Co. (C. C. 
 with having given him counterfeit App. 2d C), 59 U. S. App. 588, 
 money with demand for other 88 Fed. 437, 31 Chic. Leg. N. 42. 
 money in its stead, and on her re- 63. McGary v. W. Chicago St. 
 fusal, insults her by slandering her R. Co., 85 111. App. 610; Hoflfman 
 character, and puts his hand upon v. Syracuse R. T. Ry. Co., 50 App. 
 her, telling her not to stir until Div. (N. Y.) 83, 63 N. Y. Supp. 
 he gets a policeman to arrest and 442; Holzman v. M^t. St. R. Co., 
 search her, and then lets her go 31 Misc. Rep. (N. Y.) 644, 64 N. 
 when he fails to get an officer — is Y. Supp. 1120. 
 
COLLISION WITH VEHICLE. _ 509 
 
 rate of speed, it would also be a question for the jury whether 
 he was not negligent in attempting the experiment of cross- 
 ing in front of the other car, when to remain where he was 
 and await its crossing would result in absolute safety/" If 
 the driver by his own negligence has placed himself and the 
 passengers of the car in a situation of peril, and being called 
 upon in a sudden exigency to act, mistake his best course 
 through an error of judgment, the company is not thereby 
 relieved f^ as to the passenger, the fact that the collision with 
 another vehicle occurred by reason of the negligence of the 
 driver of the latter vehicle does not relieve the carrier from 
 liability for its negligence, provided it has been the efificient 
 and proximate cause of the injury.*^ In an action by a pas- 
 senger to recover for injuries occasioned by a collision with 
 another car or with another vehicle there is a presumption of 
 negligence on the part of the carrier; but no such presump- 
 tion obtains as against the owner of the other vehicle al- 
 though made a party defendant.*'' The rule that the motor- 
 man or gripman on the car has the right to assume that a 
 
 64. Schneider v. Third Ave. R. C. 291; Devlin v. Atlantic Ave. R. 
 Co., 133 N. Y. 583, 44 St. Rep. (N. Co., 57 Hun (N. Y.), SPi, 32 St. 
 Y.) 680; Zimmer v. Third Ave. R. Rep. (N. Y.) 938, 10 N. Y. Supp. 
 Co., 36 App. Div. (N. Y.) 26s, 55 848; Fox v. Brooklyn City R. Co., 
 N. Y. Supp. 308. 7 Misc. (N. Y.) 285, 58 St. Rep. 
 
 65. Schneider Case, supra; Mor- (N. Y.) 540, 27 N. Y. Supp. 895; 
 ris V. Railway Co., 148 N. Y. 182. Watkins v. Atlantic Ave. R. Co., 
 
 66. W. Chicago St. R. Co. v. 20 Hun (N. Y.), 237; Seidlinger v. 
 Tuerk, 90 111. App. 105; Chicago Brooklyn City R. Co., 28 Hun (N. 
 & A. R. Co. v. McDonnell, 91 id. Y.), 503; Smith v. St. Paul City 
 488; Green v. Pac. Lumber Co., Ry. Co., 32 Minn, i, 16 Am. & 
 130 Cal. 435, 62 Pac. 747; West Eng. Ry. Cas. 310, 18 N. W. 827. 
 Chicago St. R. Co. v. Williams, 67. Loudoun v. Eighth Ave. R. 
 87 111. App. 548; Keegan v. Third Co., 162 N. Y. 380, 56 N. E. 988; 
 Ave. R. Co., 34 App. Div. (N. Y.) Falke v. Third Ave. R. Co., 38 
 297, 54 N. Y. Supp. (88 St. Rep.) App. Div. (N. Y.) 49, 55 N. Y. 
 391; Cincinnati St. R. Co. v. Mur- Supp. (89 St. Rep.) 984. 
 
 ray, 3 Ohio Dec. 72, 9 Ohio C. 
 
5IO STREET SURFACE RAILROADS. 
 
 wagon on the track will move out of the way until something 
 appears showing that it cannot move, does not apply to an 
 action by a passenger against the company for injuries sus- 
 tained in colHsion with the wagon;** nor can the carrier 
 assume that its right of way to cross first at a crossing of 
 two railroad tracks would be respected by a car approaching 
 upon the other track as against its passenger.*' The street 
 railway company is responsible for injuries received by pas- 
 sengers at a railroad crossing where the collision occurred 
 with a passenger train when the accident was due to the 
 inexperience of the motorman and the company's failure to 
 provide a conductor to assist in properly applying the back 
 brakes;^" or for failure of the servants upon the car to go 
 forward upon the tracks at the railroad crossing to a position 
 where they could ascertain whether or not a steam train was 
 approaching the crossing.'' The duty of the servants of the 
 
 68. Sweeney v. Kansas City of a crossing to give warning of 
 Cable R. Co., 150 Mo. 385, 51 S. its car starting to cross the street, 
 W. 682; Sears v. Seattle Consol. where an ordinance required street 
 St. R. Co., 6 Wash. 227, 33 Pac. cars moving west to stop on the 
 389, 1081. But it has been held west side of a street to discharge 
 that an electric railway company passengers, and also compelling 
 is not chargeable with negligence them to stop on the east side until 
 or liable for injuries sustained by signaled by the flagman to cross. 
 a passenger where the car ran into Pryor v. Met. St. Ry. Co., 85 Mo. 
 another thrown upon the track App. 367. 
 
 about ISO feet in front of it because 70. Flourney v. Shreveport Belt 
 
 of a collision with a beer wagon, Ry. Co., 50 La. Ann. 491, 23 So. 
 
 when the motorman applied the 465. And see Hammond W. & E. 
 
 brakes and remained at his post. C. El. R. Co. v. Spyzehalski, 17 
 
 and made every reasonable effort Ind. App. 7, 46 N. E. 47. 
 
 to stop the car. Snediker v. Nas- 71. West Chicago St. R. Co. v. 
 
 sau El. R. Co., 41 App. Div. (N. Martin, 47 III. App. 610. And see 
 
 Y.) 628, 58 N. Y. Supp. 457. Coddington v. Brooklyn Cross- 
 
 69. Goorin v. Allegheny Tract. town R. Co., 102 N. Y. 66; Barrett 
 Co., 179 Pa. St. 327, 333, 36 Atl. V. Third Ave. R. Co., 45 id. 
 207, 1 129. Unless a carrier know 628, affg. 31 N. Y. Super. Ct. (l 
 a passenger is in peril, it is not Sweeny) 568, 8 Abb. Pr. (N S.) 
 bound on stopping on the east side 205. 
 
COLLISION WITH VEHICLE. 
 
 511 
 
 Street railway company to exercise extraordinary diligence 
 for the protection of its passengers applies not only to those 
 having control of the car in which the passenger is traveling, 
 but also to those having control of another car approaching 
 on a parallel track after they have discovered that the former 
 car is about to discharge passengers who may alight danger- 
 ously near to such parallel track.'^ The mere fact that the 
 carrier has instructed its servants with regard to its duty in 
 exercising care at a railroad crossing will not relieve the 
 company from liability for injury caused by a collision at 
 such crossing due to the conductor's negligence. ^^ But the 
 carrier's servants are not bound to infer danger from a wagon 
 proceeding on a parallel track; to infer, for example, that a 
 wagon loaded with lumber protruding beyond the rear wheels 
 would suddenly be turned ofif the parallel track and the end 
 of the lumber would be forced into the car and thus injure a 
 passenger;'* nor is it bound to assume that, upon an electric 
 railroad running through woods and fields by frequent curves 
 and on a steep gr^de where the cars are run rapidly and but 
 two minutes apart, an injury would occur by the forward car 
 stopping to adjust its trolley and the rear car colliding with 
 it." 
 
 72. Atlanta Consol. St. R. Co. v. 7S- Blanchette v. Holyoke St. 
 
 Bates, 103 Ga. 333, 30 S. E. 41. R. Co., 175 Mass. 51, SS N. E. 481. 
 
 7Z- Hammond, etc., R. Co. v. But see Costegan v. Warren, B. 
 
 Spyzehalski, 17 Ind. App. i, 46 N. & S. St. Ry. Co. (Mass.), 55 N. 
 
 E. 47. E. 317; Chicago, etc., Ry. Co. v. 
 
 74. Alexander v. R. C. & B. R. Young, 58 Nebr. 678; Oliver v. 
 
 Co., 128 N. Y. 13, 27 N. E. 9S0, Railroad Co., SS S. C. 541; Inter- 
 
 38 St. Rep. (N. Y.) 254. And see national & G. N. R. Co. v. Wil- 
 
 Wynn v. Central Park, N. & E. Hams, 29 Tex. Civ. App. S87; King 
 
 River R. Co., 133 N. Y. 575, 44 v. Railviray Co. (Del.), i Pennewill, 
 
 St. Rep. (N. Y.) 673; Marks v. 4S2; Louisville & N. R. Co. v. 
 
 Rochester R. Co., 41 App. Div. Bell, 100 Ky. 203, 38 S. W. 3. For 
 
 (N. Y.) (£, s8 N. Y. Supp. (92 St. additional authorities as to collision 
 
 Rep.) 210. with other vehicles, see Atchison, 
 
512 
 
 STREET SURFACE RAILROADS. 
 
 § 29. Position of apparent peril. — The impulsive and un- 
 guarded act of a passenger, resulting in injury, while trying 
 to escape from a car because of a reasonable fear due to the 
 mismanagement of the carrier, is to be deemed a consequence 
 of such mismanagement for which the carrier is responsible.'^ 
 So,, in the use of electrical appliances, the carrier is bound 
 
 T. & S. F. Ry. Co. V. Gen. El. 
 Ry. Co., 24 Am. & Eng. R. Cas. 
 (N. S.) 541, 112 Fed. 689; West 
 Chicago St. R. Co. v. Tuerk, 193 
 111. 38s, 61 N. E. 1087, affg. 90 111. 
 App. ids; Chicago City Ry. Co. 
 V. Anderson, 193 111. 9, 61 N. E. 
 999, affg. 93 111. App. 419; Vincent 
 V. Norton & T. St. Ry.Co. (Mass.), 
 61 N. E. 822; McAndrew v. St. L. 
 & S. Ry. Co., 88 Mo. App. 97; 
 Hanselman v. St. L., etc., R. Co., 
 id. 123; Hutchinson v. same, id. 
 376; McCracken v. Consol. Tract. 
 Co. (Pa.), 50 Atl. 830; Bass' Admr. 
 V. Norfolk Ry. & L. Co. (Va.), 
 40 S. E. 100; Hurley v. West End 
 St. Ry. Co. (Mass.), 62 N. E. 263; 
 Penman v. McKeesport, etc., Ry. 
 Co. (Pa.), 50 Atl. 973; Cowden v. 
 Shreveport Belt Ry. Co., 106 La. 
 Ann. 236, 30 So. 747; Campbell v. 
 Consol. Tract. Co. (Pa.), 50 Atl. 
 829; Jackson v. United Tract. Co., 
 18 Pa. Super. Ct. 211; Marchal v. 
 Indianapolis St. Ry. Co. (Ind. 
 App.), 62 N. E. 286; Edwards v. 
 Foote (Mich.), 88 N. W. 404, 8 
 Det. Leg. N. 880; Hamilton v. 
 Consol. Tract. Co. (Pa.), 50 Atl. 
 946; Parkinson v. Concord St. Ry. 
 (N. H.), 24 Am. & Eng. R. Cas. 
 N. S. S75, 51 Atl. 268. An acci- 
 dent resulting from the direction 
 of a street railroad company in- 
 spector, to one injured, to drive 
 upon the tracks of the railroad, and 
 
 to the motorman to proceed with 
 his car around the curve, causing 
 collision, creates a liability against 
 the company. Gay v. Brooklyn H. 
 R. Co., 69 App. Div. 563. As to a 
 cause of action arising to a pe- 
 destrian caught between two street 
 cars going in opposite direction, 
 see O'Callaghan v. Met. St. R. 
 Co., 6g App. Div. 574; and see 
 Handy v. same, 70 App. Div. (N. 
 Y.) 27. 
 
 76. Gannon v. N. Y., etc., R. Co., 
 173 Mass. 40, 52 N. E. 1075, 43 L. 
 R. A. 833, 5 Am. Neg. Rep. 613; 
 Heath v. Glens Falls, etc., St. R. 
 Co., 90 Hun (N. Y.), 560, 71 St. 
 Rep. (N. Y.) 29, 36 N. Y. Supp. 
 22; Floutrup V. Boston & M. R. 
 Co., 163 Mass. 152, 39 N. E. 797; 
 Dallas Consol. Tract. Ry. Co. v. 
 Randolph (Tex. Civ. App.), 5 Am. 
 Electl. Cas. 379, 383; Twomley v. 
 Central Park, etc., R. Co., 69 N. 
 Y. 158; Adams v. Hannibal, etc., 
 R. Co., 71 Mo. 553; Pa. R. Co. v. 
 Stegemeier, 118 Ind. 305, 20 N. 
 E. 843; Chicago, etc., R. Co. v. 
 Clough, 134 111. 586, 25 N. E. 664; 
 Knowlton v. Milwaukee City Ry. 
 Co., 59 Wis. 278; Holzab v. New 
 Orleans, etc., R. Co., 38 La. Ann. 
 185; Dinney v. Wheeling & E. G. 
 R. Co., 28 W. Va. 32; South Cov- 
 ington, etc., Ry. Co. v. Ware, 84 
 Ky. 267, I S. W. 493. 
 
POSITION OF PERIL. 
 
 SIS- 
 
 to use the very highest degree of care to see that those in 
 use on the car do not get out of order and so endanger the 
 safety of passengers. ''^ Where, by reason of the electric 
 current being suddenly reversed to prevent a collision the 
 circuit breaker blew out, causing a loud explosion and a 
 flash of light in the car, followed by the crash of breaking 
 glass from the collision, the fact that a nervous woman was 
 injured by jumping from the car while the other passengers 
 remained in the car uninjured, did not preclude her from a 
 recovery against the carrier for her injuries.'* The general 
 
 ^^. So held in an action for in- 
 juries received by a woman in 
 jumping from an electric car, 
 where it appeared by the evidence 
 that the entire car was enveloped 
 in flames caused by defective in- 
 sulation of the cables underneath 
 the car. Leonard v. Brooklyn 
 Heights R. Co., 7 Am. Electl. Cas. 
 683, 57 App. Div. (N. Y.) 125, 67 
 N. Y. Supp. 98s; in this case, elec- 
 trical experts testified that if flames 
 first appeared underneath an elec- 
 tric car in the rear and then on 
 the side and the front, the fire 
 might be due to defective insula- 
 tion of the underneath cables; and 
 that any depreciation in the quality 
 of insulation, due to wearing away 
 of the rubber insulation, could be 
 found by a weekly application of 
 the magnetometer, or volt meter 
 test, made by one man in fifteen 
 minutes. Ernployees of the com- 
 pany admitted that this test was 
 known by the railroad men, but 
 they only made the test once a 
 year or when looking for trouble. 
 The morning of the accident the 
 company's inspector examined the 
 cable on the car, running his hand 
 
 31 
 
 over it and looking where the 
 cable was liable to wear or burn 
 oiT, and found everything all right; 
 held, that the question whether the 
 accident was caused by defective 
 insulation, and whether the com- 
 pany used due care in its inspec- 
 tion was for the jury. And see 
 Poulsen V. Nassau El. R. Co., 7 
 Am. Electl. Cas. 675, 18 App. Div. 
 (N. Y.) 221, 45 N. Y. Supp. 941; 
 Olga Poulsen v. Nassau El. R. Co., 
 7 Am. Electl. Cas. 677, 30 App. 
 Div. (N. Y.) 246, SI N. Y. Supp. 
 933; Buckbee v. Third Ave. R. Co., 
 7 Am. Electl. Cas. 692, 64 App. 
 Div. (N. Y.) 360. 
 
 78. Wanzer v. Chippewa Valley 
 El. R. Co., 108 Wis. 319, 84 N. 
 W. 423. And see Texarkana St. 
 R. Co. V. Hart (Tex. Civ. App.), 
 26 S. W. 435. So a passenger on 
 a stalled electric car is not negli- 
 gent as mat*^er of law in attempting 
 to jump from the car on suddenly 
 noticing that there is danger of 
 another car colliding with it. 
 Quinn v. Shamokin & M. C. El. 
 R. Co., 7 Pa. Super. Ct. 19; Shank- 
 enbery v. Met. St. R. Co. (C. C. 
 W. D. Mo.), 46 Fed. 177. 
 
514 STREET SURFACE RAILROADS. 
 
 rule is that a person placed by the reckless or careless acts 
 of the servants or agents of another in such a position as to 
 be compelled to choose upon the instant and in the face of an 
 apparently great and impending peril between two hazards, 
 a dangerous leap from the moving car, or to remain in the 
 car at a certain peril, is not precluded from recovery against 
 the carrier for injuries thereby sustained. It is for the jury 
 to say whether any one of ordinary prudence placed in the 
 same situation would have acted in the same manner, and 
 the outcries of other passengers in the same peril are compe- 
 tent upon the question as to whether the alarm of the person 
 injured was unreasonable.'^ So, a passenger, attempting to 
 board a street car which starts after she has her foot upon the 
 step and her hand upon the railing, is not necessarily negli- 
 gent in continuing her hold upon the car after it starts, since, 
 being placed in sudden peril by the negligence of the carrier, 
 she is not held to strict accountability for her mode of 
 action.®" But there must be a reasonable apprehension of 
 danger and the carrier is not liable for an injury to passengers 
 occasioned by her jumping from the car under a reasonable 
 apprehension of danger, where there was no real danger, and 
 the apparent danger was caused, not by the negligence of 
 the carrier, but of the gateman, not a servant of the carrier, 
 at a railway crossing, and his confusion and contradictory 
 
 79- Twomley v. Central Park, sion abandoned his post and 
 
 etc., R. Co., 69 N. Y. 158; Odom jumped over the front seat among 
 
 V. St. Louis S. W. R. Co., 4S La. the passengers, one of whom was 
 
 Ann. 1201, 14 So. 734, 23 L. R. A. thus frightened and injured, the 
 
 152; Carruth v. Texas & P. R. Co., whole question is for the jury. 
 
 45 La. Ann. 1228, 14 So. 736; West Dunlay v. Tract. Co., 18 Pa. Super. 
 
 Chicago St. R. Co. v. Lyons, 57 Ct. 206. 
 
 111. App. 536; Lacas v. Detroit 80. Joliet St. Ry. Co. v. Duggan, 
 
 City R. Co., 92 Mich. 412, 52 N. 45 111. App. 450. And see Wash- 
 
 W. 74S. When the motorman was ington & G. R. Co. v. Hickey (D. 
 
 in no danger, but upon an explo- C. App.), 23 Wash. L. Rep. 177. 
 
RATE OF SPEED. 515 
 
 warnings and signals, no negligence on the part of the driver 
 of the street car being shown.*' 
 
 § 30. Eate of speed. — Negligence on the part of the carrier 
 -can never be predicated upon the rate of speed alone. There 
 must be other circumstances in relation to which the speed 
 may be a negligent act, unless, of course, the rate is limited 
 and any excess of such limitation is prohibited by statute or 
 ordinance of the municipality in which the car is operated.*^ 
 A street car company is not justified in running its cars at a 
 high speed past a car standing on a parallel track to allow 
 passengers to alight who might cross to either side of the 
 rstreet, thereby rendering the place appointed for passengers 
 to alight dangerous.®^ Nor should an electric car be pro- 
 pelled over an uneven track at such a speed as to cause it to 
 sway, and thereby bring the head of a passenger who had 
 risen to signal the conductor against a trolley pole standing 
 two feet from the open car;*'* nor should it be driven at a 
 high rate of speed on a down grade upon a switch known by 
 the driver to be dangerous.*^ 
 
 81. Kleiber v. People's R. Co., R. Co., 46 App. Div. (N. Y.) 246, 
 107 Mo. 240, 17 S. W. 946, 14 L. 61 N. Y. Supp. 530; Baker v. Man- 
 R. A. 613. And see Getman v. D., hattan Ry. Co., 118 N. Y. 533, 29 
 L. & W. R. Co., 162 N. Y. 21. St. Rep. (N. Y.) 936. 
 
 82. Francisco v. Troy & L. R. 84. Schmidt v. Coney Isl., etc., 
 Co., s Am. Electl. Cas. 374, 78 R. Co., 26 App. Div. (N. Y.) 391, 
 Hun (N. Y.), 13; Walters v. Col- 49 N. Y. Supp. (83 St. Rep.) ^^^. 
 lins Park & Belt R. Co., 5 Am. 85. Seelig v. Met. St. R. Co., 18 
 Electl. Cas. 387, 95 Ga. 519; Came- Misc. Rep. (N. Y.) 383; Vail v. 
 ron V. Union Trunk Line, 5 Am. Broadway R. Co., 147 N. Y. 377, 
 Electl. Cas. 388, 10 Wash. 507; Sirk 70 St. Rep. (N. Y.) 33; Murray v. 
 V Marion St. Ry. Co., 5 Am. Electl. Brooklyn City R. Co., 27 id. 
 Cas. 394, II Ind App. 680, Chis- 280, 7 N. Y. Supp. 900; Wynn 
 holm V. Seattle El. Co., 24 Am. v Central Park, etc., R. Co., 133 
 & Eng. R. Cas. (N. S.) 635, 67 Pac. N. Y. 575, 44 St. Rep. (N. Y.) 
 ■601. 673. And see Cassidy v. Atlantic 
 
 83. Wise V. Brooklyn Heights Ave. R. Co., 9 Misc. Rep. (N. Y.) 
 
5l6 STREET SURFACE RAILROADS. 
 
 § 31. Curves and speed thereon. — Street surface railroad cor- 
 porations may construct their lines upon approved engi- 
 neering plans, with such grades and curves as shall be 
 necessary in the practical accomplishment of the purpose for 
 which they are created, and in the operation of the cars 
 they may, subject to the Hability for the negligent injuring 
 of the passengers or persons lawfully upon the highways with 
 their property, run them in such a manner as to meet the 
 requirements of transportation. In other words, it is not 
 required that in the operation of street railway cars there 
 shall be no swaying of the cars, nor jars or jolts; these are 
 reasonably to be expected in the practical discharge of the 
 duties which are assumed by the corporation in accepting 
 its franchise, and it is the duty of passengers to take notice 
 of the obvious fact that a car weighing from four to ten tons, 
 running at a practical rate of speed, will be subject to the 
 laws of applied mechanics, and will be swayed with greater 
 or less violence in passing around curves, and will be jolted 
 to some extent in passing over other tracks at street inter- 
 sections. This does not give the street railway company a 
 license to operate its cars without regard to the safety of 
 passengers; it owes them the duty of carrying them in safety 
 over its lines, provided, always, that the passenger has been 
 guilty of no neglect contributing to the accident. For 
 instance, if a passenger is occupying a seat in a car and volun- 
 tarily leaves that seat and steps down upon the running board 
 of an open car, and, without taking hold of anything, relies 
 upon his being able to keep his balance, and the car in passing 
 
 275; Brennan v. Brooklyn Heights Tract. Co. (Pa.), so Atl. 946. 
 
 R. Co., s Am. Electl. Cas. 416, 12 Hooper v. United Tract. Co., 17 
 
 Misc. Rep. (N. Y.) 570, 67 St. Rep. Pa. Super. Ct. 638; Bass' Admr. v. 
 
 (N. Y.) 60s, 33 N. Y. Supp. 852. Norfolk L. & Ry. Co. (Va.), 40 S- 
 
 And see Hamilton v. Consol. E. 100. 
 
SPEED UPON CURVES. 517 
 
 around a curve should throw him ofif, the company would 
 not be liable, even if it were negligent in the operation of the 
 car; and the burden of proving lack of contributory negli- 
 gence is upon the plaintiff at all times. It is true, of course, 
 if the injury happen to the passenger while occupying a seat 
 provided by the company, the presumption of lack of con- 
 tributory negUgence would at once arise, but it is none the 
 less proved by the plaintiff by establishing the facts which 
 made it impossible for the passenger to contribute to the 
 accident, as in the case of a collision, or the derailing of a 
 car.** In operating cable cars it may be necessary for the 
 car to pass a curve at a high rate of speed. The rate at which 
 the cable runs is generally uniform, and perhaps eight or 
 ■nine miles an hour; it is regulated by the revolutions of the 
 engine, and they are controlled by a governor by which the 
 rate of speed is fixed. When the gripman applies the grip 
 firmly to the cable the car moves at the same rate of speed, 
 and there is a reasonable necessity that the grip should be so 
 applied when the car is rounding a curve, because by a slack 
 of the grip in running on a curve there is a liability of break- 
 ing or cutting some of the wire on the outside of the cable, 
 to be followed by the danger that the broken or cut wire may 
 be caught in the grip so as to prevent its release and thus 
 deny to the gripman control of the car and cause it to run away 
 at the same speed that the cable moves. The consequences 
 might be serious to passengers in the car and others, as well 
 as to the property exposed to its collision in the crowded 
 streets. No imputation of want of care can arise from the 
 
 86. Per Woodward, J., in Bruce Co., 178 Cal. 163, 60 Pac. 780; 
 
 V. Brooklyn Heights R. Co., 68 Morrow v. Westchester El. Ry. 
 
 App. Div. (N. Y.) 242, 243. And Co., 30 Misc. Rep. (N. Y.) 694, 
 
 see Babcock v. Los Angeles Tract. 63 N. Y. Supp. 16; afifd., 67 id. 21. 
 
5i8 
 
 STREET SURFACE RAILROADS. 
 
 fact that the car rounds a curve at the cable's full speed; 
 but if warning to passengers in the car was reasonably neces- 
 sary for their protection or safety, it is the duty of the carrier, 
 under such circumstances, to give them the benefit of the 
 warning.®'' If the street railway carrier permits the passenger 
 to ride on the platform of a crowded car and collects his fare, 
 it is liable to him for an injury occasioned by running such 
 car around the curve, without warning, at such speed that 
 the passenger, while in the exercise of due care, has his hands 
 wrenched from the railing and is thrown into the street.^® 
 
 § 32. Presumption of iieglig«nce. — When it is shown that the 
 injury to the passenger was caused by the act of the carrier 
 in operating the instrumentalities employed in his business, 
 
 87. Wilder v. Met. St. R. Co., 
 10 App. Div. (N. Y.) 364; affd., 
 161 N. Y. 66s, 57 N. E. 1128; Hite 
 V. Met. St. R. Co., 130 Mo. 132, 
 SI Am. St. Rep. SSS, 31 S. W. 262. 
 
 88. Lucas v. Met. St. Ry. Co., 
 S6 App. Div. (N. Y.) 405, 6^ N. 
 Y. Supp. 833. And see Johnsen v. 
 Oakland, etc., Ry. Co., 127 Cal. 
 608, 60 Pac. 170; Schaefer v. Union 
 R. Co., 29 App. Div. (N. Y.) 261, 
 SI N. Y. Supp. (8s St. Rep.) 431; 
 Marion St. R. Co. v. Shaffer (Ind. 
 App.), 36 N. E. 861; Brusch v. St. 
 Paul City R. Co., 52 Minn. 512, 
 55 N. W. 57; Blondel v. St. Paul 
 City R. Co., 66 Minn. 284, 68 N. 
 W. 1079, 6 Am. & Eng. R. Cas. 
 (N. S.) 272; Francisco v. Troy & 
 L. R. Co., 88 Hun (N. Y.), 464, 
 34 N. Y. Supp. 859, 68 St. Rep. 
 (N. Y.) 792; Reber v. Pittsb. & B. 
 Tract. Co., 179 Pa. St. 339, 36 Atl. 
 24s; Lansing v. Coney Isl. & B. 
 R. Co., 16 App. Div. (N. Y.) 146, 
 45 N. Y. Supp. 120; Carroll v. 
 
 People's R. Co., 60 Mo. 465, i Mo. 
 App. Rep. 186; O'Toole v. Cen- 
 tral Park, etc., R. Co., 58 Hun, 
 (N. Y.), 609, 35 St. Rep. (N. Y.) 
 Sgi, 12 N. Y. Supp. 347; Ayers v. 
 Rochester R. Co., 156 N. Y. 104, 
 50 N. E. 960. In the case last 
 cited it was said that the fact that 
 a passenger in a street car was so 
 violently twisted and prostrated by 
 the motion of the car while pass- 
 ing around the curve as to be in- 
 jured does not of itself warrant 
 an inference that there was an ex- 
 cessive use of the motive power. 
 Saffer v. D. D., etc., R. Co., 24 
 St. Rep. (N. Y.) 210, s N. Y. Supp. 
 700, 2 Silv. ON. Y.) 343. And see 
 Omaha St. R. Co. v. Godola 
 (Nebr. Sup. Ct), 6 Am. Electl. 
 Cas. 424; Bard v. Pa. Tract. Co., 
 id. 444, 176 Pa. St. 97; Hollings- 
 worth v. Cincinnati St. R. Co., 21 
 Ohio C. C. 536; Hastings v. Cen- 
 tral Crosstown R. Co., 7 App. Div. 
 (N. Y.) 313, 4a N. Y. Supp. 93. 
 
NEGLIGENCE PRESUMED. 
 
 519 
 
 there is a presumption of negligence which throws upon the 
 carrier the necessity of showing that the injury was sustained 
 without any neghgence on his part; if, however, when the 
 carrier has given such proof, doubt still exists as to its negli- 
 gence, the plaintiff must fail.^^ Xhis rule applies to street 
 railroad companies operating cars by electric or steam 
 power. 9" But where the agencies which, united, caused 
 
 89. McCurrie v. So. Pac. Co. 
 (Sup.), 122 Cal. 561, 55 Pac. 324; 
 Bassett v. Los Angeles Tract. Co., 
 22 Am. & Eng. R. Cas. (N. S.) 5 
 65 Pac. 470; Olsen v. Citizens' Ry. 
 Co., 152 Mo. 426, 54 S. W. 470; 
 Clark V. Railroad Co., 127 Mo. 
 210, 29 S. W. 1016; Hill V. Rail- 
 road Co., 109 N. Y. 239, 16 N. E. 
 61; Smedley v. Hestonville, M. & 
 F. Pass. R. Co., 184 Pa. St. 62a, 
 39 Atl. 544, 9 Am. & Eng. R. Cas. 
 (N. S.) 649, 42 W. N. C. 169; Steele 
 V. Consol. Tract. Co., 30 Pittsb. 
 L. J. (N. S.) 290; Scott V. Bergen 
 Co. Tract. Co. (N. J. L.), 48 Atl. 
 1 1 18, affg. 63 N. J. L. 407, 43 Atl. 
 1060. 
 
 go. Bosqui V. Sutro R. Co., 131 
 Cal. 390, 63 Pac. 682; Loudoun v. 
 Eighth Ave. R. Co., 162 N. Y. 
 380, 56 N. E. 988; Felton v. Hol- 
 brook (Ky.), 56 S. W. 506; Calu- 
 met El. St. Ry. Co. V. Jennings, 83 
 111. App. 612. In Hastings v. Cen- 
 tral Crosstown R. Co., 7 App. Div. 
 (N. Y.) 313, 314, 40 N. Y. Supp. 93, 
 the court say, it would be grossly 
 unjust to extend the rule cited in 
 the text to street railway com- 
 panies, which have no exclusive 
 control over their tracks or the 
 roadway, but whose tracks are daily 
 used by thousands of other vehicles 
 and are placed in public streets 
 
 under the control of the city au- 
 thorities, and in which work is con- 
 stantly being done on or under the 
 roadways and tracks. 
 
 Where a passenger on one of de- 
 fendant's cars was injured because 
 it went oflf a curve, and at the 
 time the driver was looking at 
 some boys, the railway being prop- 
 erly constructed, but no explana- 
 tion ofifered for the derailment; 
 held a question for the jury. Pol- 
 lock V. Brooklyn & Crosstown R. 
 Co., 39 St. Rep. (N. Y.) 568, 15 
 N. Y. Supp. 189. There being 
 evidence that the plaintifif while 
 boarding one of defendant's elec- 
 tric cars was struck in the cheek 
 by a brake-handle which the mo- 
 torman had set so as to hold the 
 car at rest, and had then left the 
 platform, it was held that a pre- 
 sumption of defendant's negligence 
 arose which it was called upon to 
 overcome. Gilmore v. Brooklyn 
 H. R. Co. (N. Y.), 6 Am. Electl. 
 Cas. 432, 6 App. Div. (N. Y.) 117. 
 The fact, unexplained, that a stream 
 of water entered a car window, in- 
 juring a passenger, does not raise 
 a presumption of the carrier's neg- 
 ligence. Spencer v. Chicago, M. 
 & St. P. Ry. Co. (Wis.), 81 N. W. 
 407. And see Bergen Co. Tract. 
 Co. v. Demorest, 62 N. J. L. 755. 
 
520 STREET SURFACE RAILROADS. 
 
 injury to a passenger, are not all within the control of the 
 carrier, the latter's negligence cannot be inferred from the 
 mere fact of the injury.'' This does not mean, for example, 
 that where a passenger in a street car is injured by the colli- 
 sion of the car with a wagon in a public street that there is 
 not a presumption of negligence at once raised on the part of 
 the cari^ier requiring it to establish that its employees were 
 not in fact negligent in suffering the collision ;5^ nor that 
 when a car is started with great violence it is not a fair infer- 
 ence that such violence could have been the result of nothing 
 else than the improper application of the power to move the 
 car and negligence on the part of the railroad company.'^ 
 
 § 33. Avoidable accident. — As was stated in section 31 of 
 the chapter immediately preceding, if an accident could have 
 been avoided by the carrier and did not result proximately 
 from the contributing negligence of the passenger, a recovery 
 for injuries sustained will not be defeated because the pas- 
 senger was guilty of some negligence. While the carrier 
 must exercise a high degree of care to safely transport and 
 deliver its passenger, the passenger may rely somewhat upon 
 
 91. Elwood V. Chicago City Ry. 19 App. Div. (N. Y.) 130, 45 N. 
 Co., 90 111. 397. And see Arm- Y. Supp. 1075. And see Jonas v. 
 strong V. Met. St. R. Co., 23 App. Long Island R. Co., 21 Misc. 
 Div. (N. Y.) 137, 48 N. Y. Supp. Rep. (N. Y.) 306, 47 N. Y. Supp. 
 (82 St. Rep.) 597, aflfd. 165 N. Y. 149; Roberts v. Johnson, 58 N. Y. 
 641, 59 N. E. 1118; Stevenson v. 613; Massoth v. D. & H. Canal 
 Second Ave. R. Co., 35 App. Div. Co., 64 id. 524; Ferry v. Man- 
 (N. Y.) 474, 54 N. Y. Supp. (88 hattan Ry. Co., 118 id. 497, 29 
 St. Rep.) 815. St. Rep. (N. Y.) 933; Martin v. 
 
 92. Shay V. Canton & S. Ry. Second Ave. R. Co., 3 App. Div. 
 Co. (N. J.), 49 Atl. 547. And see (N.Y.) 448, 23 St. Rep. (N.Y.) 714, 
 Anderson v. Brooklyn H. R. Co., 38 N. Y. Supp. 220; Black v. Third 
 32 App. Div. (N. Y.) 266, 52 N. Ave. R. Co., 2 App. Div. (N. Y.) 
 Y. Supp, (86 St. Rep.) 984. 387, 73 St. Rep. (N. Y.) 446, 37 N. 
 
 93- Grotsch v. Steinway R. Co., Y. Supp. 83a 
 
AVOIDABLE ACCIDENT. 
 
 521 
 
 the carrier's care and is only called upon to act as a reason- 
 able person would act under the circumstances. It follows 
 therefore that if in an action to recover for injuries to a 
 passenger the plaintiff does not establish freedom from negli- 
 gence on his part, yet the evidence shows such an utter 
 absence of all care and diligence on the part of the carrier 
 as would not be excused by the passenger's negligence, the 
 jury may determine that the carrier's negligence was equiva- 
 lent to intentional mischief. '* Although a person may be 
 negligent in attempting to get on a moving street car, where 
 the driver could have avoided injuring him by the exercise 
 of reasonable care in stopping the car, the company will be 
 liable for the injury.'^ 
 
 94. Mapes V. Union Ry. Co., 56 
 -App. Div. (N. Y.) 508. In a case 
 affirmed by the New York Court 
 of Appeals, the court, at General 
 Term, said: "Evidence having 
 been given upon the trial tending 
 to prove that the engine driver 
 might, with the exercise of ordi- 
 nary care, have stopped the engine 
 and so have avoided the injury to 
 the plaintifif, the court erred in 
 granting a nonsuit. In such a case 
 neither the fact that the plaintifif 
 was wrongfully on the defendant's 
 railroad, nor the fact that his own 
 negligence, or that of his parents, 
 contributed to the injury, consti- 
 "tutes a bar to a recovery. Neglect 
 on the part of the person in charge 
 of the engine to use ordinary care 
 to avoid injuring a person on the 
 track is, in contemplation of law, 
 equivalent to intentional mischief. 
 He has no more right to run over 
 a person, lawfully or unlawfully, 
 rightfully or wrongfully on the 
 'track, if he can, by the exercise of 
 
 ordinary care, avoid doing so, than 
 he has to shoot him. Such a case 
 furnishes a just and well-established 
 exception to the general rule, that 
 contributive negligence on the part 
 of the plaintiff will defeat a recov- 
 ery." Kenyon v. N. Y., etc., R. 
 Co., s Hun (N. Y.), 479; afld., 76 
 N. Y. 607; citing Davies v. Mann, 
 10 N. W. 546; Bird v. Holbrook, 
 4 Bing. 628; Tufif v. Warman, 5 
 C. B. (N. S.) 5731 Scott v. Dublin, 
 etc., R. Co., II Irish C. L. 377; 
 Button V. Hudson R. Co., 18 N. 
 Y. 248, 258. And see Parkinson 
 V. Concord St. Ry. (N. H.), 24 Am. 
 & Eng. R. R. Cas. N. S. S7S, Si 
 Atl. 268. 
 
 95. Woodward v. West Side St. 
 R. Co., 71 Wis. 62s, 38 N. W. 347. 
 And see WUlmot v. Corrigan Con- 
 sol. St. R. Co., 106 Mo. 535, 17 
 S. W. 490; Carrico v. W. Va. C. 
 & P. R. Co., 35 W. Va. 389, " 
 Ry. & Corp. L. J. 64, 14 S. E. 12; 
 Texas & P. R. Co. v. Overall, 82 
 Tex. 247, 18 S. W. 142. Where 
 
522 street surface railroads. 
 
 Contributory Negligence. 
 
 § 34, Measure of care required of passengers. — A passaiger 
 on a street car is not bound absolutely to exercise the highest 
 degree of vigilance and care for his safety;'* having signaled 
 the conductor indicating a desire to ahght, he is not required 
 to exercise as high a degree of care as the conductor must 
 exercise in regard to the movement of the car.'^ Thus a 
 slight inattention to duty, not the proximate cause of the 
 injury which resulted to him from the gross negligence of the 
 carrier, will not defeat a recovery.'^ A lady upon a street car 
 is not, as matter of law, chargeable with negligence in allow- 
 ing her dress to catch upon a projecting bolt, the existence of 
 which she knew or might have known by the exercise of 
 ordinary care.'^ But a passenger cannot place herself in a 
 position of obvious danger, and thereafter hold the carrier 
 liable for the result of her own carelessness.' If a passenger 
 
 the jury, after retirement, sent to H.), 24 Am. & Eng. R. Cas. (N. 
 
 the presiding justice a written S.) 575, 51 Atl. 268; Lee v. Market 
 
 question, whether negligence of St. Ry. Co. (Cal.), 24 Am. & Eng. 
 
 plaintifif would preclude his re- R. Cas. (N. S.) 578, 67 Pac. 765; 
 
 covery without regard to the care Doolittle v. So. Ry. Co., 62 S. C. 
 
 of the motorman, and the justice 130, 40 S. E. 133. 
 
 replied that " if the plaintifif was 97. Cobb v. Lindell R. Co., 149. 
 
 not using due care, and his want Mo. 135, 50 S. W. 310. 
 
 of it was the cause of, or directly 98. Atchison, T. & S. F. R. Co. 
 
 contributed to, the injury, he could v. Hughes, 55 Kan. 491, 2 Am. & 
 
 not recover, even if the motorman Eng. R. Cas. (N. S.) 248, 40 Pac. 
 
 was also in fault," was held ob- 819; Kansas & A. V. R. Co. v.. 
 
 jectionable because not sufficiently White (C. C. App. 8th C), 67 Fed. 
 
 specific and tending to make the 481. 
 
 jury understand that whatever the 99. North Chicago St. R. Co. v. 
 
 circuipstances, plaintiff's negligence Eldridge, 151 111. 542, 38 N. E.. 
 
 would preclude recovery. 246; Chartrand v. So. R. Co., 57 
 
 96. West Chicago St. R. Co. v. Mo. App. 425; Patterson v. Inc. 
 
 McNulty, 166 111. 203, 46 N. E. Plane R. Co., 12 Ohio C. C. 274, 
 
 784, affg. 64 111. App. 549, I Chic. i O. C. D. 66s. 
 
 L. J. Week. 373. And see Park- i. Edgerton v. Bait. & Ohio R. 
 
 inson v. Concord St. Ry. Co. (N. Co. (D. C. App.), 23 Wash. L. 
 
CONTRIBUTORY NEGLIGENCE. 
 
 523. 
 
 attempt to leave a moving car running at a high rate of 
 speed, the attempt will be so obviously dangerous that he 
 cannot recover for an injury occasioned thereby. It cannot 
 be said however, as matter of law, that it is negligent to 
 alight from a moving car. The circumstances surrounding 
 and the speed of the car make it a question for the jury.^ 
 
 Rep. 369; Chicago, etc., R. Co. v. 
 Myers (C. C. App. 8th C), 49 U. 
 S. App. 279, 25 C. C. A. 486, 80 
 Fed. 361. So, where the passen- 
 ger left his seat in an electric car, 
 went out on the platform, leaned 
 over to look for a fire, and was 
 killed by hitting his head against 
 a tree which he ought to have 
 known was standing near the track. 
 Sias V. Rochester R. Co., 18 App. 
 Div. (N. Y.) 506, 46 N. Y. Supp. 
 582. The case was tried three 
 times, and it is reported also in 
 92 Hun (N. Y.), 140, SI App. Div. 
 (N. Y.) 618; and the* last decision 
 afSrmed in 169 N. Y. 118. And see 
 State, Sharkey, v. Lake Roland 
 El. R. Co., 84 Md. 163, 34 Atl. 
 1 130, 28 Chic. Leg. N. 410; Aikin 
 v. Frankford, etc., R. Co., 142 Pa. 
 St. 47, 21 Atl. 781 ; Kimber v. Met. 
 St. R. Co., 69 App. Div. (N. Y.) 
 
 353- 
 
 2. Coursey v. So. Ry. Co. (Ga.), 
 38 S. E. 866; McDonald v. Mont. 
 St. R. Co., no Ala. 161, 20 So. 
 317; Chicago, B. & Q. R. Co. v. 
 Hyatt, 48 Nebr. 161, 67 N. W. 8, 
 4 Am. & Eng. R. Cas. (N. S.) 44; 
 Dimmitt v. Hannibal & St. J. R. 
 Co., 40 Mo. App. 654; Merritt v. 
 N. Y., etc., R. Co., 162 Mass. 326; 
 Chicago & A. R. Co. v. Byrum, 
 IS3 111. 131; McDonald v. Kansas 
 City & L R. T. R. Co., 127 Mo. 
 38; Jones V. Bait. & O. R. Co., 
 
 4 App. D. C. 158; Sweeney v. 
 Union Tract. Co., 199 Pa. St. 293, 
 49 Atl. 66. In the case last cited 
 it appeared that the passenger on 
 an open street car signaled the 
 conductor to stop, and after the 
 latter rang the bell, and as the 
 speed slackened, he stepped to the 
 side and stood with one foot on the 
 car and the other on the running 
 board, the car not stopping, he 
 withdrew his foot from the run- 
 ning board and stood just inside 
 of the car firmly holding the hand- 
 rail, and again signaled. The con- 
 ductor again rang the bell, the 
 speed slackened, the car almost 
 stopped, and suddenly moved on 
 more rapidly, and with a jerk 
 which threw the passenger off. 
 Held for the jury. And see Foster 
 V. Union Tract. Co. (Pa.), 49 Atl. 
 270; Britton v. Grand Rapids St. 
 R. Co., 90 Mich. 159, SI N. W. 
 276; Hodges V. So. R. Co., 120 N. 
 C. SSS, V S. E. 128; So.'R. Co. V. 
 Mitchell, 98 Tenn. 27, 40 S. W. 72; 
 Nichols V. Lynn & B. R. Co., i68- 
 Mass. 528, 47 N. E. 427; Shade v. 
 Union Tract. Co. (C. P.), 7 Pa. 
 Dist. Rep. 34, 20 Pa. Co. Ct. 292; 
 Kohler v. West Side R. Co., 99 
 Wis. zz, 74 N. W. 568; Chicago 
 City R. Co. V. Meehan, ^^ III. App. 
 215; Posten V. Denver Consol. 
 Tramway Co., 11 Colo. App. 187, 
 S3 Pac. 391; Wallace v. Third Ave. 
 
.524 
 
 STREET SURFACE RAILROADS. 
 
 Neither is the passenger bound to know that the place where 
 he does aHght is safe;^ nor does his failure to advise the car- 
 rier's employee of a threatened danger subject him to the 
 charge of contributory negligence where he does not under- 
 take management or direction.* The seats in railway cars 
 are provided for the passengers to occupy. If, without rea- 
 sonable cause, they leave the car or place themselves or any 
 portion of their body on the outside of it when in motion they 
 assume the hazard of so doing. If a passenger unnecessarily 
 and voluntarily leave his seat, stand upon the step and there 
 come in contact with a column of the elevated road in close 
 proximity to the track, he cannot recover for injury thus 
 occasioned.^ But a street car passenger sitting beside an 
 
 R. Co., 36 App. Div. (N. Y.) 57, 5 
 Am. Neg. Rep. 215, 55 N. Y. Supp. 
 132. So held where a woman with 
 a babe in her arms is thrown to 
 the ground by the negligent start- 
 ing of a car, although she was not 
 holding on, and stood facing the 
 rear. Rouser v. Wash. & G. R. 
 Co., 26 Wash. L. Rep. 559, 13 App. 
 D. C. 320. And see Sanders v. 
 So. R. Co., 107 Ga. 132, 14 Am. 
 & Eng. R. Gas. (N. S.) 281, 32 
 S. E. 840; Birmingham Ry. & E. 
 Co. V. James, 121 Ala. 120, 25 So. 
 847. The mere act of a boy thir- 
 teen years old in unnecessarily 
 jumping from a moving street car 
 does not, as matter of law, amount 
 to contributory negligence. It is 
 otherwise however if he had been 
 previously warned of the danger 
 of such an act. Pueblo El. St. R. 
 Co. v. Sherman, 25 Colo. 114, 53 
 Pac. 322. 
 
 3. The plaintiff, riding at night, 
 notified defendant's conductor that 
 he wished to leave at a certain 
 
 street, at which place there was 
 a plank roadway some forty feet 
 wide guarded by railings, where 
 the cars were accustomed to stop. 
 The car passed the street and 
 stopped at a place where there was 
 no protection, and where the track 
 passed over a trestle twelve feet 
 above the tide flats; knowing that 
 plaintifif was going to the power- 
 house, the conductor pointed to- 
 ward it, and the former, thinking 
 they were at the usual stopping 
 place, stepped from the car, started 
 toward the power-house and fell 
 through an unprotected space be- 
 tween the track and the wagon 
 road; he was held not contribu- 
 torily negligent. Henry v. Grand 
 St. El. Ry. Co. (Wash.), 64 Pac. 
 137. 
 
 4. Perez v. New Orleans City & 
 L. R. Co., 47 La. 1391, 17 So. 869. 
 
 5. Coleman v. Second Ave. R. 
 Co., 114 N. Y. 609; Cummings v. 
 Worcester, L. & S. St. R. Co., 166 
 Mass. 220, 5 Am. & Eng. R. Cas. 
 
CONTRIBUTORY NEGLIGENCE. 525, 
 
 Open window, riding with his arm resting on the sill not 
 more than three inches outside the car, is not necessarily 
 neghgent so as to preclude recovery for an injury to such 
 arm caused by another car passing on a switch/ It depends 
 however upon the rate of speed with which the car ordinarily 
 travels. If it be an electric car or a cable car it might be 
 negligent, as matter of law, for a passenger to permit his 
 arm, or any portion of his body, to protrude beyond the line 
 of the outside of the car. It would seem that the same rule 
 would then apply as is applied to travelers in steam trains.^ 
 There can be no recovery for injuries sustained by a passenger 
 on a street car platform where standing thereon is an act of 
 carelessness, or failure to exercise such care as men of ordi- 
 nary prudence would exercise under the same circumstances.^ 
 But ordinarily standing on the front or rear platform even 
 of an electric or a cable car with the permission of the em- 
 ployees controlling the car is not so obviously dangerous as 
 to prevent a recovery by a passenger who, without other 
 fault, is injured.' A woman may stand in the aisle of a street 
 
 (N. S.) 389, 44 N. E. 126; Tanner mond & D. R. Co. v. Scott (Va.l, 
 
 V. Buffalo Ry. Co., 72 Hun (N. Y.), 52 Am. & Eng. R. Cas. 405, 16 L. 
 
 46s, 54 St. Rep. (N. Y.) 776. R. A. 91, 14 S. E. 763, 16 Va. L. 
 
 6. Tucker v. Buffalo R. Co., 53 J- 362; Texas & P. R. Co. v. Over- 
 App. Div. (N. Y.) S7I, 6S N. Y. all, 82 Tex. 247, 18 S. W. 142. 
 Supp. 989; Sweeney v. Union Ry. 8. Beal v. Lowell & B. St. R.. 
 Co., 31 Misc. Rep. (N. Y-) 472, 797- Co., 157 Mass. 444, 32 N. E. 653. 
 And see Francis v. N. Y. Steam 9- Seymour v. Citizens' St. R., 
 Co., 114 N.Y. 38o,aflfg. 13 Daly (N. Co., 114 Mo. 266, 58 Am. & Eng. 
 Y.) 510, I St. Rep. (N. Y.) 261; R. Cas. 39s, 21 S. W. 739; Mat? 
 Schneider v. New Orleans & C. R. v. St. Paul City R. Co., 52 Minn. 
 Co. (C. C. E. D. La.), 54 Fed. 466; IS9. 53 N. W. 1071 ; Cogswell v. 
 Gulf C. & S. F. R. Co. V. Kille- West St. & N. E. El. R. Co., 5 
 brew (Tex.), 20 S. W. 182, revg. on Wash. 46, 52 Am. & Eng. R. Cas. 
 other grounds, id. 1005. 500, 31 Pac. 411, 7 Am. R. & Corp. 
 
 7. See Carrico v. W. Va., etc.. Rep. 48; Herdt v. Rochester City 
 R. Co., 35 W. Va. 389, II Ry. & & B. R. Cf^., 20 N. Y. Supp. 346, 
 Corp. L. J. 64, 14 S. E. 12; Rich- 48 St. Rep. (N. Y.) 46; Met. R. 
 
526 STREET SURFACE RAILROADS. 
 
 car where other passengers are permitted by the company to 
 ■ stand in the usual manner of occupying a car after the seats 
 are filled, and she is not negligent thereby as matter of law.'° 
 But she must be on her guard against the ordinary move- 
 ments of the car though they may be sudden." If she fail 
 to hold on to the railings of the car while alighting, although 
 the car is in slow motion, she may be contributorily negli- 
 gent.'^ If one takes a position carelessly against a door 
 which is liable to be opened at any tifne she is guilty of con- 
 tributory negligence and cannot recover for injuries sus- 
 tained by falling out of the car because the door is suddenly 
 opened, although the employee who opens it is also negligent 
 in not observing her position and warning her of it, and wait- 
 , ing for her to move.'^ One may be negligent in failing to 
 obey the regulation of the carrier of which he has knowledge, 
 or should have knowledge,'* yet, if the company's employees 
 allow, without objection, the infraction of the regulation, as 
 where passengers were accustomed, in spite of the rule 
 
 Co. V. Snashall (D. C. App.), 22 17 N. Y. Supp. 692, 43 St. Rep. 
 
 Wash. L. Rep. zyy; Noble v. St. (N. Y.) 835; Ripley v. Second Ave. 
 
 J. & B. H. St. R. Co., 98 Mich. R. Co., 8 Misc. Rep. (N. Y.) 449, 
 
 249, 57 N. W. 126; Grotsch v. Stein- 59 St. Rep. (N. Y.) zy, 28 N. Y. 
 
 way R. Co., 19 App. Div. (N. Y.) Supp. 683. 
 
 130, 45 N. Y. Supp. 1075; Jack- 11. Brennen v. Brooklyn Heights 
 
 son V. Phila. Tract. Co., 182 Pa. St. R. Co., 5 Am. Electl. Cas. 416, 12 
 
 104, 37 Atl. 827; Bailey v. Tacoma Misc. Rep. (N. Y.) 570, 67 St. Rep. 
 
 Tract. Co., 16 Wash. 48, 47 Pac. (N. Y.) 605, j,z N. Y. Supp. 852. 
 341; Fisher v. W. Va. & P. R. Co., 12. Root v. Des Moines City Ry. 
 
 42 W. Va. 183, ZZ L. R. A. 69, 4 Co. (Iowa), 83 N. W. 904. 
 Am. & Eng. R. Cas. (N. S.) 86, 24 13. Prothero v. Citizens' R. Co., 
 
 S. E. 570; North Chicago St. R. 134 Ind. 431, 33 N. E. 765. And 
 
 Co. V. Williams, 140 111. 275, 52 see Consol. Tract. Co. v. Thalhei- 
 
 Am. & Eng. R. Cas. 522, 29 N. E. mer, 59 N. J. L. (30 Vroom) 474, 
 
 672, affg. 40 111. App. sgo; Lehr v. 37 Atl. 132. 
 
 Steinway & H. P. R. Co., 118 N. 14. Lake Shore & M. S. R. Co. 
 
 Y. 556, 30 St. Rep. (N. Y.) I. V. Kelsey, 180 111. 130, 54 N. E. 
 
 10. Griffith V. Utica & M. R. Co., 608. 
 
CHILDREN PASSENGERS. 52/ 
 
 against it, to swing around from the step of an electric car to 
 that of the trailer and injury results from an electric shock 
 caused by imperfect insulation, the person injured will not 
 be held negligent as matter of law.'^ It is not necessarily 
 negligent for a passenger to attempt to board a car next 
 to the parallel track and in spite of a chain across the entrance 
 to the platform, as the chain is notice, merely, that he is 
 liable to be struck by passing cars.'* A passenger leaving 
 a street car and required to cross the parallel tracks is not 
 necessarily negligent, as the stopping of the car and the invi- 
 tation to alight upon that side given by the company's em- 
 ployees may be regarded as an assurance of the absence of 
 danger. '7 
 
 § 35. Children. — In entering, riding upon, and leaving street 
 cars a boy say ten years of age is bound to exercise prudence 
 equal to his knowledge and experience, and to that extent is 
 held responsible in law for acts or omissions contributing 
 to his own injury.'® He is not as matter of law free from 
 
 15. Burt V. Douglass County St. Co., 198 Pa. St. 184, 47 Atl. 945; 
 H. Co., 83 Wis. 229, 53 N. W. 447, Houston & T. C. R. Co. v. Dot- 
 18 L. R. A. 479. son, IS Tex. Civ. App. 73, s8 
 
 16. Schwartz v. Cincinnati St. R. S. W. 642; Landrigan v. Brooklyn 
 Co., 8 Ohio C. C. 484, I Ohio Dec. Heights R. Co., 23 App. Div. (N. 
 
 197. And see De Rozas v. Met. Y.) 43, 49 N. Y. Supp. 4S4; Toledo 
 
 St. R. Co., 13 App. Div. (N. Y.) Consol. St. R. Co. v. Lutterbeck, 
 
 ^96, 43 N. Y. Supp. 27; Sexton v. 11 Ohio C. C. 279; Doyle v. Albany 
 
 Met. St. R. Co., 40 App. Div. (N. Ry., 5 App. Div. 601, 39 N. Y. 
 
 Y.) 26, 6 Am. Neg. Rep. 13S, S7 N. Supp. 440. And see for additional 
 
 Y. Supp. S77; Dale v. Brooklyn recent authorities as to contribu- 
 
 City, etc., R. Co., i Hun (N. Y.), tory negligence, Schneider v. Mar- 
 
 146, 3 T. & C. 686; aflfd., 60 N. Y. ket St. Ry. Co. (Cal.), 66 Pac. 734; 
 
 ^38. , Cotton V. Lynn & B. R. (Mass.) 
 
 17. Wise V. Brooklyn Heights R. 61 N. E. 818. 
 
 Co., 46 App. Div. (N. Y.) 246, 61 18. Little Rock Tract. & E. Co. 
 
 N. Y. Supp. 530; Roberts v. N. Y., v. Nelson, 66 Ark. 494, 52 S. W. 
 
 «tc., R. Co., 175 Mass. 296, 56 N. 7; Bait. City Pass. R. Co. v. Mc- 
 
 £■ 559; Gray v. Fort Pitt Tract. Donnell, 43 Md. 534; Stone v. D. 
 
528 
 
 STREET SURFACE RAILROADS. 
 
 contributory negligence in trying to board an electric car 
 followed by a trailer moving at a rate of from three to seven 
 miles an hour.'' If he fall from the platform or car steps 
 because of his ovi^n imprudence, the carrier is not liable 
 merely because the conductor called him to the platform 
 when about to reach his destination and while giving the 
 signal to stop.''" But it may be said, generally, that the car- 
 rier ought to prevent children of such tender years that negli- 
 gence cannot be imputed to them from being on the platform 
 of a moving car, and if such a child gets there without per- 
 mission the carrier's failure to remove him from his position 
 of danger as soon as discovered is negligence.^' The carrier 
 is responsible if such a child jump from the car after the 
 conductor has refused to stop at a usual stopping place to 
 allow him to reach his home, although none of the servants 
 
 D., etc., Ry. Co., IIS N. Y. 104, 23 
 St. Rep. (N. Y.) S5i; Phila. City 
 Pass. Ry. Co. v. Hassard, 75 Pa. 
 St. 367. 
 
 19. Shy V. Union Depot R. Co., 
 134 Mo. 681, 36 S. W. 23s; Chi- 
 cago City Ry. Co. v. Wilcox (111.), 
 24 N. E. 419, 8 L. R. A. 494; Erie 
 City Pass. Ry. Co. v. Schuester, 
 113 Pa. St. 412, 6 Atl. 269; Mow- 
 rey v. Central City Ry. Co., 66 
 Barb. (N. Y.) 43. In a recent case 
 in New York it appeared that a boy 
 of six years boarded a street car, 
 and by reason of its being crowded 
 was obliged to stand with one foot 
 on the front platform and the other 
 on the step; after the car started, 
 the conductor running alongside 
 collected fares; the boy gave him 
 his ticket and the conductor then 
 attempted to board the platform 
 by forcing himself between the boy 
 and another passenger; in so doing 
 
 he elbowed the boy, who fell or 
 was pushed from the car and in- 
 jured. It was held that the ques- 
 tions of negligence and contribu- 
 tory negligence were for the jury. 
 Gray v. Met. St. R. Co., 39 App. 
 Div. (N. Y.) S36, 57 N. Y. Supp. 
 (91 St. Rep.) 587. Where a boy 
 over seven years of age on an ocean 
 steamship attempted to follow his 
 father and was crowded against 
 the rudder chain by a throng of 
 other passengers assembled by the 
 captain's orders; held a question 
 for the jury as to whether or not 
 a recovery could be had against the 
 carrier for negligence. Garoni v. 
 Compagnie Nationale de Naviga- 
 tion, 39 St. Rep. (N. Y.) 63, 14 N. 
 Y. Supp. 797; aflfd., 131 N. Y. 614. 
 
 20. Cronan v. Crescent City R. 
 Co., 49 La. Ann. 65, 21 So. 163. 
 
 21. Levin v. Second Ave. Tract. 
 Co. (Pa.), so Atl. 22s. 
 
INFIRM PASSENGERS. 
 
 529 
 
 of the carrier were in a position to prevent the jump.^^ How- 
 much of experience and what degree of intelligence a child 
 must evince before negligence can be imputed to him can 
 never be determined as a matter of law. The age, the person, 
 the circumstances surrounding are all to be given, and the 
 jury must decide.'^^ 
 
 § 36. Infirm persons. — A carrier does not owe to every pas- 
 senger precisely the same care without respect to age, sex, 
 
 22. Avey V. Galveston, H. & S. 
 A. R. Co., 81 Tex. 243, 26 Am. St. 
 Rep. 809, 16 S. W. 1015. 
 
 23. The cases upholding the doc- 
 trine stated in the text are numer- 
 ous, and many of them have been 
 heretofore cited. See also Barks- 
 dull V. New Orleans & Carrolton 
 R. Co., 23 La. Ann. 180; McMahon 
 V. Northern Central Ry. Co., 39 
 Md. 438; Hestonville Pass. Ry. Co. 
 V. Connell, 88 Pa. St. 520; Oldfield 
 v. N. Y. & H. R. Co., 3 E. D. 
 Smith (N. Y.), 103; affd., 14 N. Y. 
 310; Washington & Georgetown 
 Ry. Co. V. Gladmon, 15 Wall. (U. 
 S.) 401; Brown v. European & N. 
 A. Ry. Co., 58 Me. 384; Nagle v. 
 Allegheny V. R. Co., 88 Pa. St. 
 35; St. Claire St. Ry. Co. v. Eadie, 
 43 Ohio St. 91, 54 Am. Rep. 144; 
 Westerfield v. Levis, 43 La. Ann. 
 63, 9 So. 52; Government St. R. 
 Co. v. Hanlon, 53 Ala. 70; Farris 
 v. Cass Ave., etc., Ry. Co., 80 Mo. 
 325. For additional authorities as 
 to the care required on the part of 
 street railroad employees with ref- 
 erence to children, see Reed v. 
 Minneapolis St. R. Co., 34 Minn. 
 557, 27 N. W. "JT, Pendril v. Sec- 
 ond Ave. R. Co., 43 How. Pr. (N. 
 Y.) 599; Mallard v. Ninth Ave. 
 
 33 
 
 R. Co., IS Daly (N. Y.), 376; 
 27 St. Rep. 801; Citizens' St. 
 . R. Co. v. Carey, 56 Ind. 396; 
 Dallas City R. Co. v. Beeman, 74 
 Tex. 291, II S. W. 1102; Chicago 
 W. D. R. Co. V. Ryan, 43 Am. & 
 Eng. R. Cas. 396, 131 111. 474, 23 N. 
 E. 385; Tallaher v. Crescent City 
 R. Co., 37 La. Ann. 288; Hearn v. 
 St. Charles St. R. Co., 34 id. 160; 
 Winters v. Kansas City Cable R. 
 Co., 99 Mo. 509, 40 Am. & Eng. 
 R. Cas. 261, 12 S. W. 652, 6 L. R. 
 A. 536; Mascheck v. St. Louis R. 
 Co., 71 Mo. 276, 2 Am. & Eng. R. 
 Cas. 38; Bulger v. Albany Ry., 
 42 N. Y. 459; Jaquinto v. Broadway 
 &• S. A. R. Co., 49 St. Rep. (N. 
 Y.) 627, 21 N. Y. Supp. 639, 2 
 Misc. Rep. (N. Y.) 174; Wolf v. 
 Houston, etc., R. Co., 50 Hun 
 (N. Y.), 603, 19 St. Rep. (N. Y.) 
 763, 2 N. Y. Supp. 787; Nelson 
 v. Crescent City R. Co. (La.), 7 
 Am. & Eng. R. Cas. (N. S.) 192; 
 Anderson v. Minneapolis St. R. 
 Co., 42 Minn. 490, 43 Am. & Eng. 
 R. Cas. 294, 44 N. W. S18; Collins 
 V. S. Boston H. R. Co., 142 Mass. 
 301, 7 N. E. 856, 26 Am. & Eng. 
 R. Cas. 371 ; Jones v. United Tract. 
 Co. (Pa. Sup.), 24 Am. & Eng. R. 
 Cas. (N. S.) 395, 5° Atl. 826; Nolder 
 
S30 
 
 STREET SURFACE RAILROADS. 
 
 or bodily infirmity.^* If he be evidently crippled, or infirm, 
 or very young, the duty of the carrier toward him while 
 boarding or alighting, or while remaining in the car must 
 be performed with due regard to such apparent condijiion.^s 
 Knowledge communicated to one employee upon a car that 
 a passenger is feeble and will need assistance in getting oflf 
 is notice to the carrier; and it is not necessary to notify the 
 conductor or the one in charge of the car;^^ and a conversa- 
 tion which plaintiff had with the conductor on entering the 
 car is competent to show that he knew that the plaintifif was 
 a cripple.^' Where an elderly man requested a street car 
 
 V. McKeesport, W. & D. Ry. Co., 
 24 Am. & Eng. R. Cas. (N. S.) 396, 
 50 Atl. 948. 
 
 24. St. Louis, A. & T. R. Co. v. 
 Finlay, 79 Tex. 85, 15 S. W. 266; 
 Schiller v. D. D., etc., R. Co., 26 
 Misc. Rep. (N. Y.) 392, S6 N. Y. 
 Supp. (90 St. Rep.) 184. 
 
 25. Ridenhour v. Kansas City 
 Cable R. Co., 102 Mo. 283, 14 S. 
 W. 760; Sheridan v. Brooklyn & N. 
 R. Co., 36 N. Y. 39, 34 How. Pr. 
 (N. Y.) 217. A passenger being sud- 
 denly ill and thereby less able to 
 look after his own safety, who 
 makes that fact known to the con- 
 ductor, is entitled to a greater de- 
 gree of care than is demanded un- 
 der ordinary circumstances. Mc- 
 Cann v. Newark & So. R. Co., 58 
 N. J. L. (29 Vroom) 642, 34 Atl. 
 1052, 4 Am. & Eng. R. Cas. 382, 33 
 L. R. A. 127. And see Indian- 
 apolis, P. & C. R. Co. V. Pitzer, 
 109 Ind. 179; East Line & R. Co. v. 
 Rushing, 69 Tex. 306, 6 S. W. 834; 
 Shenandoah Val. R. Co. v. Moose, 
 83 Va. 827, 3 S. E. 796; Lake Shore 
 & M. S. R. Co. V. Salzman, 52 Ohio 
 
 St. ss8, 31 L. R. A. 261; Atchison, 
 T. & S. F. R. Co. V. Weber, 33 
 Kan. 543; Louisville, N. & G. S. R. 
 Co. V. Fleming, 14 Lea (Tenn.), 
 128; Columbus, C. & I. C. R. Co. 
 V. Powell, 40 Ind. 37. 
 
 26. Foss V. Boston & M. R. Co. 
 (N. H.), 47 Am. & Eng. R. Cas. 
 S66, 21 Atl. 222, II L. R. A. 367; 
 Croom V. Chicago, M. & St. P. R. 
 Co., 52 Minn. 296, 38 Am. St. Rep. 
 SS7. 53 N. W. 1128, 18 L. R. A. 
 602, 7 Am. Ry. & Corp. Rep. 468. 
 
 The carrier is not liable for the 
 death of one by heart disease, who 
 was rudely and roughly removed 
 from the car by the driver under 
 the mistaken impression that he 
 was drunk, and placed on the side- 
 walk where soon after he died; 
 there being nothing to show that 
 It was not the disease that killed 
 him, or that the driver's wrongful 
 acts in any manner produced or 
 hastened his death. Briggs v. Min- 
 neapolis, 52 Minn. 36, 53 N. W. 
 1019. 
 
 27. Louisville, H. & St. L. R. 
 Co. v. Bowlds (Ky.), 64 S. W. 957. 
 
INTOXICATED PASSENGERS. 53 1 
 
 driver to stop and permit him to alight and was rudely- 
 answered, he cannot recover if he be injured in attempting 
 to jump from the car while in slow motion without any notice 
 to the driver of his intention, although his injury was occa- 
 sioned by a sudden jerk of the car as the team drawing it 
 were struck by a whip just as he was alighting.''* The carrier 
 is not chargeable with notice that a passenger more than fifty 
 years of age has ridden on a cable car only once or twice and 
 does not understand the manner of receiving and discharging 
 passengers.^9 But appearance alone is no excuse for a mis- 
 take on the part of the carrier's servant; thus, if he forcibly 
 remove from the street car one sufifering from St. Vitus 
 dance, under the mistaken notion that he is intoxicated, a 
 rule of the company requiring conductors not to allow in- 
 toxicated persons on the car affords no protection. 3° It 
 has been held that a short person weighing 200 pounds is 
 negligent in attempting to board a street car, moving at 
 the rate of six miles an hour, with packages in both his 
 hands.3' The rule would seem to be however that it is a 
 question for the jury to determine whether one is negligent, 
 however crippled or fleshy, in attempting to board a moving 
 car. 3^ 
 
 § 37. Intoxicated persons. — The mere fact that a passenger 
 was intoxicated at the time of his injury, while not in itself 
 
 28. Outen V. N. & S. St. R. Co., St. Rep. (N. Y.) 356, 28 N. Y. 
 94 Ga. 662, 21 S. E. 710. Supp. 84. 
 
 29. Jackson v. Grand Ave. R. 3i- Bait. Tract. Co. v. State, 
 Co., 118 Mo. 199, 24 S. W. 192. Ringgold, 78 Md. 4x39, 58 Am. & 
 
 30. Regner v. G. F., etc., St. R. Eng. R. Cas. 200, 28 Atl. 397. 
 Co., 74 Hun (N. Y.), 202, 56 St. 32. Cincinnati, H. & B. R. Co. v. 
 Rep. (N. Y.) 300, 26 N. Y. Supp. Nolan, 8 Ohio C. C. 347. And see 
 62s; Watson V. Oswego St. Ry. Shaughnessy v. Consol. Tract. Co., 
 ■Co., 7 Misc. Rep. (N. Y.) 562, 58 17 Pa. Super. Ct. 588. 
 
532 STREET SURFACE RAILROADS. 
 
 contributory negligence, is a circumstance to be considered. 
 The jury, too, might determine that the intoxication con- 
 tributed to his injury.33 The self-infliCted disability does not 
 excuse him from the exercise of the care due from a sober 
 man.3'* If he act in such a manner as to justify the inference 
 that he is intoxicated and falls into a sleep or stupor which 
 the conductor fails to break by shaking him, he may be 
 ejected.35 But in ejecting him, due and proper regard for 
 his safety must be had; and the carrier is not justified in put- 
 ting him, on a dark and stormy night, in an unlighted road 
 some distance from buildings but where street cars are pass- 
 ing in each direction and teams are likely also to be passing.^^ 
 Nevertheless the carrier is not Hable for the death of an 
 intoxicated person ejected, where the conductor did not have 
 ground to believe that the man was unable to find his way or 
 walk to his own father's house which was not far away, or to 
 some other suitable shelter.^'' So the failure of the conductor 
 to compel a young man twenty years of age, somewhat intoxi- 
 
 33- Trumbull v. Erickson (U. S. 3.6. Hudson v. Lynn & B. R. 
 
 C. C. A. Colo.), 97 Fed. 891, 38 Co. (Mass.), 59 N. E. 647; Louis- 
 
 C. C. A. 536. ville & N. R. Co. v. Johnson, 108 
 
 34. Fisher v. W. Va. & P. R. Ala. 62, 19 So. 51, 31 L. R. A. 372. 
 
 Co., 42 W. Va. 183, 24 S. E. 570, In the case last cited, it appeared 
 
 4 Am. & Eng. R. Cas. (N. S.) 86, that the passenger, known to be 
 
 33 L. R. A. 69; Holland v. West intoxicated and irresponsible, was 
 
 End St. R. Co., iss Mass. 387, 29 ejected at a place from which he 
 
 N. E. 622; Donoho v. Met. St. R. could escape only by following the 
 
 Co., 30 Misc. Rep. (N. Y.) 433, 62 roughly-ballasted railroad track 
 
 N. Y. Supp. (96 St Rep.) 523; But- and crossing cattle-guards on the 
 
 ler V. Steinway R. Co., 87 Hun (N. one side and a bridge over a creek 
 
 Y.), 10, 67 St. Rep. (N. Y.) 498, 33 on the other, and he soon after 
 
 N. Y. Supp. 845. was run over by another train and 
 
 35- Hudson v. Lynn & B. R. killed. 
 
 Co. (Mass.), 59 N. E. 647; Freedon zt. Roseman v. Carolina C. R. 
 
 V. N. Y. C, etc., R. Co., 24 App. Co., 112 N. C. 709, 34 Am. St. Rep. 
 
 Div. (N. Y.) 306, 48 N. Y. Supp. 524, 19 L. R. A. 327, 52 Am. & 
 
 ^^4- Eng. R. Cas. 63B, 16 S. E. 766. 
 
EMPLOYEES. 533 
 
 cated, to enter a car, after he had dedined to do so and per- 
 sisted in riding on the platform and was thrown therefrom 
 and injured, will not rehder the carrier liable, if the conductor 
 concluded he was able to care for himself, although the young 
 man's father asked the conductor to get him in.^^ 
 
 § 38. Employees. — The law applicable to the relation of 
 master and servant, of course, controls the street surface rail- 
 road company in its relation to its employees. The rule that 
 it is the duty of the employer to furnish safe machinery, tools, 
 appliances and a safe place in and with which the employee 
 may work is applicable. In providing these, the law does 
 not require that degree of diligence and foresight which the 
 insurer must exercise, but simply reasonable care and pru- 
 dence, dependent upon the circumstances, for reasonable 
 care and prudence is always a relative term. In the nature 
 of things, what is sufficient care and foresight in one instance 
 might be regarded as negligence in another. ^^ The degree of 
 care and prudence must increase in a corresponding ratio with 
 the danger and hazard necessarily connected with the use of 
 the appliance. So, when the legislature authorizes a corpo- 
 ration to use an agency of great danger to life, like electricity, 
 and to use an uninsulated trolley wire, which is capable of 
 
 38. Fisher v. W. Va. & P. R. Mo. 368; Weeks v. New Orleans, 
 
 Co., 42 W. Va. 183, 4 Am. & Eng. etc., R. Co., 32 La. Ann. 615; 
 
 R. Cas. (N. S.) 86, 24 S. E. 570, 33 Welty v. Indianapolis & V. R. Co., 
 
 L. R. A. 69. And see id., 39 W. lOS Ind. SS; Hubbard v. Town of 
 
 Va. 366, 23 L. R. A. 758; Missouri Mason City, 60 Iowa, 400, East 
 
 P. R. Co. V. Evans, 71 Tex. 361, Tenn., etc., R. Co. v. Winters, 85 
 
 I L, R. A. 476, 9 S. W. 325; Milli- Tenn. 240. And see Mathison v. 
 
 man v. N. Y. C, etc., Co., 66 N. S. I. M. R. Co., 72 N. Y. Supp. 
 
 Y. 642; McClelland v. Louisville, 974- 
 
 etc., R. Co., 94 Ind. 276; Illinois 39- Harroun & Fenn v. Light 
 
 C. R. Co. V. Sheehan, 29 111. App. Co., 6 Am. Electl. Cas. 357, 12 App. 
 
 90; Werner v. Citizens' Ry. Co., 81 Div. (N. Y.) 126. 
 
534 STREET SURFACE RAILROADS. 
 
 communicating its deadly quality to wire or other conductor 
 of electricity that came in contact with it, the law implies a 
 duty to use a very high degree in the construction and opera- 
 tion of the appHances for the use of that agency, and holds 
 it accountable for injury to any person due to the neglect 
 of that duty, whether the person injured be its employee or 
 not/" The master who puts a tool or implement into his 
 servant's hand may procure it in several ways. He may 
 buy it ready made of a dealer, procure it to be manufactured, 
 or purchase the materials and manufacture it himself. Lia- 
 bility for an injury resulting from a defect in the materials 
 of a tool will be determined by the same rule in each case. 
 If the tool be purchased, the master is necessarily compelled 
 to rely upon the dealer and manufacturer for the quality of 
 materials used. The modern industrial system rests upon 
 confidence in others. A railroad corporation cannot well 
 apply tests which would impair the strength of the appli- 
 ance, or perhaps destroy it altogether; hence, the materials 
 of which its cars and engines are to be made, or the rails 
 which form its tracks, must be tested by others upon whom 
 the corporation must rely. Reasonable inspection however, 
 as has been shown herein, is necessary and required. But 
 when articles are manufactured by a process approved by 
 use and experience and apparently properly finished and 
 stamped, it is not usual for them to be tested again in quality, 
 and such examinations are not generally required by law. 
 If materials of the best quality are purchased and tools con- 
 structed from them by competent and skillful workmen, if 
 there is nothing in the appearance of the material to indicate 
 
 40. McAdam v. Central Ry. & Cox, 6 Am. Electl. Cas. 352, 48 
 El. Co., 6 Am. Electl. Cas. 348, 67 Nebr. 807. 
 Conn. 445; Lincoln St. Ry. Co. v. 
 
EMPLOYEES. 
 
 535 
 
 inefficienc)', men in the ordinary affairs of life use them and 
 place them in the hands of their servants, and railroad cor- 
 porations are justified in so doing, and are not liable if the 
 servant is injured by reason of a latent defect therein.'*' 
 Where the danger is obvious to the employee, he assumes 
 the risk in his contract of service. Whether it were obvious 
 to him is ordinarily a question of fact for the jury.'*'^ He is 
 
 41. Carlson v. P. B. Co., 132 N. 
 Y. 273, 278; Smith V. N. Y. C, 
 etc., Co., 164 id. 491, 495; Murphy 
 V. C. I. & B. R. Co., 65 App. Div. 
 (N. Y.) 546. In the case last cited 
 it appeared that the employee, 
 plaintiff, was injured by a defective 
 " brook-line," into which he was 
 engaged in passing span wires. 
 The complaint was dismissed by 
 the trial court and the judgment 
 was reversed because there was no 
 proof whatever that the manufac- 
 turer ever made any test of the 
 brook-lines, and it did appear that 
 he made a verbal promise that he 
 would test them. There was also 
 testimony that practical tests could 
 have been made by the defendant 
 of the brook-line in its finished 
 form, which would have revealed 
 the defect in question, and that the 
 defect was not inherent in the ma- 
 terial or construction, but was due 
 to a leakage from the appliance. 
 And see Byrne v. Eastman's Co., 
 163 N. Y. 461; Wagner v. Brook- 
 lyn Heights R. Co., 69 App. Div. 
 (N. Y.) 349. 
 
 42. So held where plaintiff's in- 
 testate, a conductor on an open 
 trolley car, while standing on the 
 running board and in the act of 
 registering a fare was struck by a 
 trolley post and killed. The post 
 was one of a few which were 
 
 placed between the up and down 
 tracks and at irregular distances 
 from the tracks; the one in ques- 
 tion being only six and one-half 
 inches and the next one ten inches 
 from the upper edge of the running 
 board. Tlie intestate had run the 
 car on that part of the road but 
 once before, and it did not appear 
 whether on an open or a closed 
 car, whether or not he went on 
 that side of the car, or that he 
 knew the danger. Pierce v. Cam- 
 den, etc., Ry. Co., 6 Am. Electl. 
 Cas. ZT7, s8 N. J. L. 400. 
 
 In a recent case it appeared that 
 the plaintiff began learning the 
 duties of a conductor in the de- 
 fendant's employment two days 
 before the accident; he had not 
 worked on that part of the road 
 before that morning, but on that 
 morning he made two or more 
 trips by the place where the acci- 
 dent occurred. He had acted as 
 conductor on other roads and was 
 familiar with the duties of the posi- 
 tion and considered himself an ex- 
 perienced man. At the place of 
 the accident the track ran along the 
 side of the road for about 1,000 
 feet, and then ran in the center of 
 the road; the post which the plain- 
 tiff struck was a trolley post, one of 
 several along the track at that place 
 and all about the same distance 
 
536 
 
 STREET SURFACE RAILROADS. 
 
 not required to make a critical examination of appliances, 
 or to entertain doubts as to the cars being properly equipped; 
 and he can properly assume, unless he knows or should know 
 otherwise, that the means provided by the employer for 
 operating the cars are safe and sufficient. He is not bound 
 to know that the safe operation of his car requires more 
 assistance; but it is the duty of the employer, the carrier, to 
 supply, not only proper and safe machinery and appliances 
 for operating the car, but sufficient skilled help for its safe 
 operation.t^ Even in the presence of a known danger, to 
 
 from the track, and they and the 
 track had been in the same relative 
 positions for eight or nine years. No 
 evidence that the construction was 
 unusual or that the posts were un- 
 usually near the track. Plaintiflf 
 testified that he knew it was com- 
 mon in country towns to have 
 tracks run on one side of the road, 
 and knew that in such cases 
 there were posts for the trolley 
 wire; that he did not observe 
 whether the car was on the side of 
 the road or in the center, and paid 
 no attention to that fact or to the 
 posts or poles or tracks. It did not 
 appear that when he stepped down 
 upon the running board that he 
 looked to see if there were any 
 obstructions or exercised any pre- 
 caution, and it was shown that the 
 running board on the opposite side 
 of the car would have been entirely 
 safe, and there was nothing requir- 
 ing him to use the running board 
 on one side rather than on the 
 other. He was struck by a trolley 
 post and injured. Held, that the 
 risk was an obvious one which the 
 plaintiflf must have assumed, and 
 that he was not in the exercise of 
 
 due care; also that in view of the 
 fact that he had been sent out upon 
 that portion of the road where he 
 was when injured to learn the con- 
 ditions attending its operation 
 there, to step down on the running 
 board as he did, without looking 
 to see whether there was any ob- 
 struction in the way or whether 
 it were safe to do so, was negli- 
 gent. Ladd V. Brockton St. Ry. 
 Co. (Mass. Sup.), 62 N. E. 730, 24 
 Am. & Eng. R. Cas. (N. S.) 342. 
 43. Windover v. Troy City Ry. 
 Co., 6 Am. Electl. Cas. 381, 4 App. 
 Div. (N. Y.) 202. The action was 
 for damages for the death of a 
 motorman, caused by his car run- 
 ning away while descending a 
 steep hill. It was claimed that 
 the brake was defective, and that 
 the carrier was negligent in failing 
 to provide a sand-man to sand the 
 tracks. It was held that there be- 
 ing no evidence that deceased knew 
 that in addition to brakes and re- 
 versing the power, the use of sand 
 was also requisite to regulate the 
 speed of cars upon a steep hill, he 
 cannot be held to assume the risk 
 arising from the failure of the com- 
 
EMPLOYEES. 537 
 
 constitute contributory negligence on the part of the em- 
 ployee it must be shown that he voluntarily and unneces- 
 sarily exposed himself to it, unless it is of such character that 
 he must be presumed to have taken the risk from the very 
 nature of the danger to which he is exposed. An electrical 
 wire is not ordinarily such a known danger. It is wrapped 
 with insulated tape, and it is the known duty of the carrier 
 or the owner or user of the wire to protect it by insulation. 
 Ordinarily such a wire gives no signal of danger. If danger 
 there be, it is hidden and silent and cannot be apprehended 
 b;^ any one of the senses in time to prevent injury.''* If a 
 brakeman is swept from the top of a car where he was in the 
 line of his duty, without negligence on his part, by contact 
 wit'a a telephone wire suspended too low over the car, the 
 earner employing him and the telephone company controlling 
 the \nre are jointly liable to him for the injury occasioned 
 thereky.ts It is the duty, too, of the carrier to instruct its 
 employee in the management of the appliance, and a failure 
 to do so may make it liable for injuries sustained, and which 
 might have been avoided had the employee injured been 
 properly instructed.*^ The railroad company cannot relieve 
 itself from the duty of furnishing adequate brakes for its cars 
 and keeping^ them in order, by directing its servants so to do ; 
 and if a servant be injured it cannot shield itself from Ha- 
 bility to hin. on the ground that it was the duty of a fellow 
 servant to furnish and keep in order the appliance.*'' The 
 
 pany to employ a sand-man. And 4S- S. W. Tel. & Telephone Co. 
 
 see Cook v. St. Paul, etc., R. Co., v. Crank, 4 Am. Electl. Cas. 392, 
 
 34 Minn. 45; Flike v. Boston, etc., ^7 S. W. 38- 
 
 R. Co., S3 N. Y. 549; Whittaker 46. Sullivan v. Met. St. Ry. Co., 
 
 V. D. & H. R. Co., 126 id. 544- S3 App. Div. (N. Y.) 89, 65 N. Y. 
 
 44. Clements v. La. El. L. Co., 4 Supp. (99 St. Rep.) 842. 
 
 Am. Electl. Cas. 381, 44 La. Ann. 47- McNamara v. Brooklyn City 
 
 692. R. Co., II Misc. Rep. (N. Y.) 667, 
 
538 
 
 STREET SURFACE RAILROADS. 
 
 servant, in the performance of a duty which he cannot per- 
 form without assistance, has authority, from the necessity 
 of the case, to employ help; and in doing so acts in the place 
 of the master; and such relation continues to exist during- 
 the continuance of the employment; and the master is liable 
 for any injury sustained by the assistant from the negligence 
 of the one employing him during that time.*^ Some of the 
 States by statute require street car companies to provide 
 screens to protect the employees stationed on the front plat- 
 form from wind and storm. In Missouri, such a statute 
 enacting also a fine for noncompliance with the requirement, 
 part of which should be given to the prosecuting attorney, 
 was held unconstitutional as to that part of the statute allow- 
 ing the prosecuting attorney to participate in the fine ; but 
 that otherwise it was valid legislation.'*' 
 
 32 N. Y. Supp. 913, 66 St. Rep. (N. 
 Y.) 361. If it require the drivers 
 of horse cars to examine the har- 
 ness, it is not rendered responsible 
 for the consequences to such driv- 
 ers of any defects which might, 
 with reasonable care, be found on 
 such examination as they were 
 given opportunity to make. If 
 however it appears that the horses 
 are brought to the drivers ready 
 harnessed, and a driver is injured 
 by the breaking of a hame strap, 
 the question of his contributory 
 negligence is for the jury. Mc- 
 Knight v. Brooklyn, etc., R. Co., 
 23 Misc. Rep. (N. Y.) 527, 51 N. 
 Y. Supp. (8s St. Rep.) 738. Where 
 the driver is thrown from a horse 
 car by an open switch, and killed, 
 and there is no proof that the car 
 or track was out of order, a recov- 
 ery cannot be had. Donnelly v. N. 
 
 Y., etc., R. Co., 3 App. Div. (N. 
 Y.) 408, 38 N. Y. Supp. 7CS, 74 St. 
 Rep. (N. Y.) 169. 
 
 48. Marks v. Rocheste.- R. Co., 
 77 Hun (N. Y.), 77, sc St. Rep. 
 (N. Y.) 849, 28 N. Y. Supp. 314- 
 
 49. State v. Whittater, 7 Am. 
 Electl. Cas. 806, 160 Mo. 59. The 
 case cited was a criminal action, 
 and the inforrnatios ran against 
 the president and general manager 
 of an electric railway company and 
 charged, not the defendants, but the 
 company itself, with the unlawful 
 ownership and operation of cars 
 without screens. The information 
 was held fatally defective, and 
 judgment of conviction reversed. 
 As to the constitutionality of such 
 a statute, see Minnesota v. Hos- 
 kins, s Am. Electl. Cas. 614, 58 
 Minn. 35; Ohio v. Nelson, 5 Am. 
 Electl. Cas. 619, 52 Ohio St. 88. 
 
PLEADING. 539. 
 
 Pleading AND Practice. 
 
 § 39. Pleading. — Once the relation of carrier and passenger 
 is entered upon, the carrier is answerable for all consequences 
 to the passenger of the willful misconduct or negligence of 
 the persons employed by it in the execution of the contract 
 which it has undertaken toward the passenger.^" And the 
 injured passenger may proceed against the company for a 
 breach of its contract to safely carry him to, and deliver 
 him at, his destination; or he may seek to recover damages 
 against it in an action sounding in tort, either for an un- 
 warranted assault or for negligence. '' In an action to re- 
 cover damages, if special damages be claimed, they must 
 be pleaded. The pleading however in this particular may 
 be somewhat general. Under a complaint in which it is 
 alleged that the plaintiff " sustained serious and lasting bod- 
 ily injuries and injuries to his head, limbs, and nervous sys- 
 tem, as well as internal injuries," testimony of impaired eye- 
 sight and hearing resulting from the injury to the head is 
 admissible. 5^ In an action based upon the relation of car- 
 rier and passenger, it is not sufficient in the complaint to 
 aver that plaintiff boarded a car with the intention of be- 
 coming a passenger;" it must also be alleged in the pleading 
 
 50. Palmeri v. M. R. Co., 133 N. Chappell, 22 Fla. 616; Bait. City 
 
 Y. 261, 26s; Steamboat Co. v. Pass. Ry. Co. v. Kemp, 61 Md. 
 
 Brockett, 121 U. S. 637, 30 L. Ed. 74. 619; D., L. & W. R. Co. v. 
 
 1039; Bait., etc., R. Co. v. Barger, Trautwein, 52 N. J. L. 169, 19 Atl. 
 
 80. Md. 31, 45 Am. St. Rep. 322, 178; Sub. R. Co. v. Brauss, 70 Ga. 
 
 30 Atl. 561, 26 L. R. A. 222; Haver 368; Webber v. Herkimer & M. St. 
 
 V. Central R. Co., 62 N. J. L. 286, R. Co., 35 Hun (N. Y.), 44. 
 
 41 Atl. 917, 43 L. R. A. 85; Nor- 52. Mullady v. Brooklyn Heights 
 
 folk, etc., R. Co. V. Anderson, 90 R- Co., 65 App. Div. (N. Y.) 
 
 Va. 6, 44 Am. St. Rep; 886, 17 S. 549. 
 
 E. 759. S3. Raming v. Met. St. Ry. Co., 
 
 ■ SI. Jacksonville St. R. Co. v iS7 Mo. 477, S7 S. W. 268. 
 
540 
 
 STREET SURFACE RAILROADS. 
 
 that the plaintiff was free from negligence contributing to 
 the injury; or rather that the acts alleged of the defendant 
 were the sole and proximate cause of the injury. So, a 
 complaint in an action for the ejection of a passenger from 
 a train by third persons, which alleged that the act was done 
 in full view of defendant's employees in charge thereof, and 
 that they made no efifort to protect him or prevent the as- 
 sault and battery, charges the defendant with actionable 
 negligence, but is insufificient since it does not appear there- 
 from that plaintiff was free from fault at the particular time 
 when the injury occurred. Freedom from contributory neg- 
 ligence must be alleged, or facts must be a'lleged which 
 amount thereto.^* In an action, the gravamen of which is 
 
 54. Lake Erie, etc., R. Co. v. 
 Arnold (Ind.), 59 N. E. 394; Rail- 
 road Co. V. Hancock, 15 Ind. App. 
 104, 43 N. E. 609. So a complaint 
 which alleged that the plaintiff 
 signaled the tnotorman of the de- 
 fendant's car, which he desired to 
 board; that its speed was gradually 
 slackened so that when it reached 
 the place where plaintiff was stand- 
 ing it was running very slowly, 
 and he thereupon took hold of the 
 handrail of the car and attempted 
 to step on the car; that suddenly 
 the motorman, negligently and 
 carelessly, started the car without 
 any warning or notice, and with- 
 out any fault or negligence on 
 plaintiff's part, thereby throwing 
 him to the ground and causing the 
 injuries described, was held demur- 
 rable as not alleging that plaintiff 
 ■ was free from contributory negli- 
 gence, since it did not allege that 
 he was without fault in attempting 
 to board the car while it was mov- 
 ing, even though slower, and that 
 
 he was free from negligence in the 
 manner in which he took hold of 
 the handrail. Citizens' St. R. Co. 
 V. Wagner (Ind. App.), 57 N. E. 
 49. And see Railroad Co. v. Sim- 
 mons, 38 111. 242; Railroad Co. v. 
 Burdge, 94 Ind. 46; Wahl v. Shoul- 
 ders, 14 Ind. App. 66s, 43 N. E. 
 458; Coal Co. V. Fullbright, 7 Ohio 
 L. J. 187; Potter V. Railroad Co., 
 20 Wis. 533, 91 Am. Dec. 444; West 
 Chicago St. Ry. Co. v. Marks, 182 
 111. 15, 55 N. E. ty. But see Citi- 
 zens' St. Ry. Co. V. Huffer (Ind. 
 App.), 60 N. E. 316. In some juris- 
 dictions contributive negligence is 
 a defense and must be alleged in 
 the plea or answer. Brown v. 
 Louisville Ry. Co. (Ky.), 53 S. W. 
 1041; Kennedy v. So. Ry. Co. (S. 
 C), 38 S. E. 169; Smiley v. St. L. 
 & H. Ry. Co. (Mo.), 61 S. W. (£t. 
 In the Brown Case, supra, it was 
 held that an averment in the peti- 
 tion that plaintiff was injured by 
 the gross negligence of defendant's 
 street railway company in failing to 
 
PLEADING. 
 
 541 
 
 the negligence of the defendant, the plaintifif should allege 
 substantially in his pleading that the injury was caused solely 
 by the negligence of the defendant. If he set out a specific 
 act of negligence without any general allegation, he cannot 
 avail himself of the general rule that the passenger is only 
 obliged to allege generally and then prove the relation of 
 passenger and carrier and the injury to make adequate prima 
 facie cause, and that the burden then shifts to the carrier to 
 exonerate himself, according to the practice in Missouri.ss 
 Where the complaint alleged, in an action by a passenger 
 to recover for injuries sustained while attempting to alight 
 from a street car, that the car had stopped for the purpose 
 of permitting him to leave it, but was suddenly started while 
 he was endeavoring to alight and his proof tended to show 
 that his car did not stop entirely, the court might, in order 
 to conform the pleadings to the proof, permit the plaintifif 
 to amend the complaint by alleging that the car had " nearly 
 stopped " when plaintifif attempted to alight. '^ In an action 
 brought in the Municipal Court of the city of New York, 
 where the pleadings are oral, it will be presumed rather that 
 
 have a conductor on its car, was tonio St. Ry. Co. v. Caillouette, 79 
 
 not equivalent to an averment that Tex, 341, 15 S. W. 390; N. Chi- 
 
 it was necessary to have a conduc- cago St. Ry. Co. v. Cotton, 29 N. 
 
 tor on the car for the safe trans- E. 899; Highland Ave. & Belt R. 
 
 portation of passengers, and was Co. v. Wynn, 93 ^ Ala. 306, 9 So. 
 
 not sufficient to raise an issue of 509. 
 
 fact as to the necessity of having a 56. Rosenberg v. Third Ave. R. 
 
 conductor. Co., 47 App. Div. (N. Y.) 323, 61 
 
 SS. Feary v. Met. St. Ry. Co. N. Y. Supp. (95 St. Rep.) 1052; 
 
 (Mo.), 62 S. W. 4S2. Under a gen- afTd., 168 N. Y. 681, 61 N. E. 1151. 
 
 eral allegation of negligence, it is And see Savage v. Third Ave. R. 
 
 error to admit testimony as to the Co., 29 App. Div. (N. Y.) 556, 51 
 
 general condition of the tracks of N. Y. Supp. (85 St. Rep.) 1066; 
 
 defendant's railway. Miller v. St. Patterson v. Westchester El. R. 
 
 Louis R. Co., s Mo. App. 471. Co., 26 App. Div. (N. Y.) 336, 49 
 
 And see Brooklyn St. R. Co. v. N. Y. Supp. (83 St. Rep.) 796. 
 Kelly, 6 Ohio C. C. 155; San An- 
 
542 STREET SURFACE RAILROADS. 
 
 the action is to recover damages for personal injuries grow- 
 ing out of the defendant's neglect to fulfill the duty of pro- 
 tection which it owed to the plaintifif, since the court has not 
 jurisdiction of an action for an assault.s^ 
 
 § 40. Burden of proof. — It is not necessary to prove every 
 act of negligence charged. It is sufficient if a fair pre- 
 ponderance of the evidence show the defendant negligent 
 in any respect charged, and that the injury was the proxi- 
 mate cause of such negligence, if it also appear that plaintiff 
 did not contribute to the injury.^* The plaintiff having the 
 burden of proof, if the preponderance of the evidence be 
 against him, a verdict in his favor will not be sustained. 
 Thus, if it be claimed that his injuries were received in falling 
 from a street car and the fall was caused by a sudden move- 
 ment forward of the car, and it appeared that the plaintiff 
 stepped to the rear platform and from it sought to step 
 down to the pavement when he fell; that the car was in 
 good condition and the conductor in his proper place on 
 the platform, and the motorman testified that there was no 
 attempt to start the car at the time the accident happened, 
 
 57- Hart v. Met. St. R. Co., 6s panied by an allegation of perma- 
 
 App. Div. (N. Y.) 493. Under an nent injury, the defendant is not 
 
 allegation in a complaint to re- entitled to a bill of particulars of 
 
 cover for personal injuries, after " the nature, location and probable 
 
 setting forth the injuries, that duration of each and every injury 
 
 " some of the said injuries are alleged in the complaint, except as 
 
 permanent," the defendant is en- specifically stated therein, showing 
 
 titled to a bill of particulars stat- particularly how plaintiff was ' in- 
 
 ing which are claimed to be perma- jured and bruised, and rendered 
 
 nent. Cavanagh v. Met. St. Ry. sick, sore and lame.' " English v. 
 
 Co., 70 App. Div. (N. Y.) I. But Westchester El. Ry. Co., 69 App. 
 
 under the allegation in a complaint Div. (N, Y.) 576. 
 
 that " the plaintiff was injured and 58. Pittsb., C, C. & St. L. Co. v. 
 
 bruised in his person and rendered Gray (Ind. App.), 59 N. E. 1000. 
 sick, sore and lame," unaccom- 
 
BURDEN OF PROOF. 
 
 543 
 
 and he was corroborated by several witnesses, although the 
 plaintiff was positive in his statement that the car moved 
 causing him to fall, there is a want of sufficient testimony 
 to maintain his claim. =9 On a claim by the passenger that 
 he was injured in being thrown to the ground by a lurch of 
 the car in passing from the main track to a switch track, he 
 cannot recover therefor without evidence that the injury was 
 due to some defect in the car or track, or that the speed was 
 unusual or dangerous, or that the jar was unusual, the' mere 
 motion of the car being insufficient to show negligence,^" 
 Plaintiff's burden is not sustained if it appear that he boarded 
 the car to sell his papers, jumped on the front end while it 
 was moving, and after passing along the footboard to the 
 rear, was injured by being struck by the tongue of a wagon 
 standing on the street, where it also appeared that the car 
 was moving at a moderate rate and the motorman looking 
 fprw^ard and plaintiff's presence upon the car was forbidden.*' 
 Where it appeared that plaintiff, a woman weighing more 
 than 200 pounds, claimed to have tripped over something 
 on the rear platform of the car as she was about to alight 
 and was prevented from holding to the handrail by the 
 number of passengers, the conductor, being in the middle 
 of the car, did not assist her to alight, it was held that the 
 evidence was not sufficient to show negligence of the de- 
 fendant.*'' Evidence that a street car moving upon a 
 crowded street at the rate of about two miles an hour is 
 suddenly stopped, throwing the plaintiff from her seat in 
 the car to the floor, and that the gripman in charge did 
 
 59. Gretzner v. New Orleans & 61. Padgitt v. Moll, 159 Mo. 143, 
 C. R. Co. (La.), 29 So. 496. 66 S. W. 121. 
 
 60. Byron v. Lynn & B. R. Co., 62. Jacobs v. West End St. Ry. 
 177 Mass. 303, 58 N. E. lois. Co. (Mass.), S9 N. E. 639. 
 
544 
 
 STREET SURFACE RAILROADS. 
 
 not stop it, is insufficient to support a finding- of negligence 
 in the operation of the car.^^ it may be generally stated 
 that where an accident occurs upon the railroad and a pas- 
 senger is injured by means thereof, a prima facie cause of 
 negligence is made out, but when all the circumstances 
 proved show that defendant was without fault, or where 
 the preponderance of the testimony is sufficient to overcome 
 the presumption of the defendant's negligence, a verdict 
 against it cannot be sustained.*'* The rule in many States 
 is that the plaintifif must show that no negligence of his 
 own contributed to the injury.^5 The United States Su- 
 preme Court however has held that, irrespective of statute 
 law, the burden of proving contributory negligence rests 
 on the defendant.** This is the rule in perhaps a majority 
 of the States." 
 
 63. Hoffman v. Third Ave. R. 
 Co., 45 App. Div. (N. Y.) 586, 61 
 N. Y. Supp. 590. 
 
 64. Heggeman v. Western R. 
 Corp., 16 Barb. (N. Y.) 353; affd., 
 13 N. Y. 9; Murphy v. C, 
 I. & B. R. Co., 36 Hun (N. Y.), 
 199; Hitchcock V. Brooklyn City 
 R. Co., 8 St. Rep. (N. Y.) 848; 
 Holbrook v. Utica & S. R. Co., 12 
 N. Y. 236; Wynn v. Central Park, 
 etc., R. Co., 133 id. 575; Brig- 
 noli V. Chicago & G. E. Ry. Co., 
 4 Daly (N. Y.), 182; Heinz v. 
 Brooklyn Heights R. Co., 91 Hun 
 (N. Y.), 640, 71 St. Rep. (N. Y.) 
 673, 36 N. Y. Supp. 675. 
 
 65. Park V. O'Brien, 23 Conn. 
 339; Prather v. Richmond, etc., R. 
 Co., 80 Ga. 427, 9 S. E. 530; Cin- 
 cinnati, etc., R. Co. V. McMullen, 
 117 Ind. 439, 20 N. E. 287; Mo. 
 Furnace Co. v. Avend, 107 111. 44, 
 47 Am. Rep. 425; Bonce v. Du- 
 
 buque St. Ry. Co., 53 Iowa, 278; 
 Lesan v. Me. Central R. Co., 77 
 Me. 85; Taylor v. Carew Mfg. Co., 
 143 Mass. 470, 10 N. E. 308; Myn- 
 ning V. Detroit, etc., R. Co., 67 
 Mich. 577; Vicksburg v. Hennessy, 
 54 Miss. 391; Tolman v. Syracuse, 
 etc., R. Co., 98 N. Y. ig8, 50 Am. 
 Rep. 649; Owens v. Richmond, 
 etc., R. Co., 88 N. C. 502. 
 
 66. Washington, etc., R. Co. v. 
 Gladmon, 82 U. S. (15 Wall.) 401, 
 21 L. Ed. 114. The court said: 
 " The plaintiff may establish the 
 negligence of the defendant, his 
 own injury in consequence thereof, 
 and his case is made out. If there 
 are circumstances which convict 
 him of concurrent negligence, the 
 defendant must prove them and 
 thus defeat the action. Irrespec- 
 tive of statute law on the subject, 
 the burden of proof on that point 
 does not rest upon the plain- 
 
QUESTIONS OF EVIDENCE. 
 
 545 
 
 § 41. Questions of evidence in actions for injury to passengers. 
 
 — Where a disinterested witness, in no way discredited, 
 testifies to a fact within his own knowledge and not in itself 
 improbable or in conflict with other evidence, what he testi- 
 fied to is to be regarded in law as established, so that it 
 
 tiff; " citing Oldfield v. N. Y., etc., 
 R. Co., 3. E. D. Smith, 103; affd., 
 14 N. Y. 310; Johnson v. H. R. R. 
 Co., 20 id. 65; Button v. same, 
 18 id. 248; Wilds V. same, 24 
 id. 430; and quoting also Judge 
 Denio in the last citation as fol- 
 lows: " I am of opinion that it is 
 not a rule of law of universal ap- 
 plication that the plaintiff must 
 prove affirmatively that his own 
 conduct on the occasion of the in- 
 jury was cautious and prudent. 
 The onus probandi in this, as in 
 most other cases, depends upon the 
 position of the affairs as it stands 
 upon the undisputed facts. Thus, 
 if a carriage be driven furiously 
 upon a crowded thoroughfare, and 
 a person is run over, he would not 
 be obliged to prove that he was 
 cautious and attentive, and he 
 might recover though there were 
 no witnesses of his actual conduct. , 
 The natural instinct of self-preser- 
 vation would stand in the place of 
 positive evidence, and the danger- 
 ous tendency of the defendant's 
 conduct would create so strong a 
 probability that the injury hap- 
 pened through his fault that no 
 other evidence would be required." 
 * * * "The culpability of the 
 defendant must be affirmatively 
 proved before the case can go to 
 the jury, but the absence of any 
 fault on the part of the plaintiff 
 may be inferred from circumstan- 
 ces; and the disposition of men to 
 
 34 
 
 take care of themselves and keep 
 out of difficulty may properly be 
 taken into consideration." And see 
 Indianapolis & St. L. R. Co. v. 
 Horst, 93 U. S. 298, 23 L. Ed. 900; 
 Hough V. Railway Co., 100 U. S. 
 226, 25 L. Ed. 618; Coasting Co. v. 
 Tolson, 139 U. S. SS7, 35 L. Ed. 
 274, II Sup. Ct. Rep. 6ss; Mobile & 
 Mont. R. Co. V. Jay, 65 Ala. 113; 
 Thompson v. Duncan, 70 id. 334; 
 W. U. T. Co. V. Eyser, 2 Colo. 154, 
 166; Texas, etc., Ry. Co. v. Orr, 
 46 Ark. 194; Sanders v. Reister, i 
 Dak. 172, 46 N-. W. 68s; Hopkins 
 v. Utah N. Ry. Co., 2 Idaho, 280, 
 13 Pac. 34S; Kansas City, etc., R. 
 Co. V. Phillibert, 25 Kan. 586; 
 Paducah, etc., Ry. Co. v. Hoehl, 
 12 Bush (Ky.), 47; Freeh v. Phila., 
 etc., R. Co., 39 Md. 576; Davis v. 
 Kansas City Ry. Co., 46 Mo. App. 
 189; Higby V. Gilmer, 3 Mont. 97; 
 Lincoln v. Walker, 18 Nebr. 247, 
 20 N. W. 114; Cox V. Norfolk, etc., 
 R. Co., 123 N. C. 613, 31 S. E.. 
 851; Gram v. Northern, etc., R. 
 Co., I N. Dak. 260, 46 N. W. 974,- 
 Cassidy v. Angel, 12 R. I. 449, 34 
 Am. Rep. 691; Smith v. Chicago, 
 etc., Ry. Co., 4 S. Dak. 80, 55 N. 
 W. 720; Reddon v. Union Pac. 
 Ry. Co., 5 Utah, 355, 15 Pac. 265; 
 Bait., etc., R. Co. v. Whittington, 
 30 Graft. (Va.) 809-; Norfolk, etc., 
 R. Co. V. Burge, 84 Va. 70, 4 S.. 
 E. 25; Northern, etc., R. Co. v. 
 O'Brien, i Wash. 607, 21 Pac. 35; 
 Sheff V. Huntington, 16 W. Va. 
 
546 
 
 STREET SURFACE RAILROADS. 
 
 cannot be ignored either by the court or the jury.*' But 
 where the witness is the person to whose fault or negligence 
 an injury suffered is imputed, and seeks to exonerate him- 
 self by his own testimony, he is an interested party and his 
 credibility is for the jury.*^ An exclamation by a witness 
 
 317; Hulehan v. Green Bay, etc., 
 R. Co., 68 Wis. 527, 32 N. W. 532; 
 McDougal V. Central R. Co., 63 
 Cal. 431; Hobson v. New Mexico 
 & A. R. Co. (Arizona), 11 Pac. 
 541 ; Ky. Central R. Co. v. Thomas, 
 79 Ky. 160; Hocum v. Weitherick, 
 22 Minn. 152; Smith v. Eastern R. 
 Co., 35 N. H. 356; N. J. Express 
 Co. V. Nichols, 33 N. J. L. 434; 
 Bait., etc., R. Co. v. Whitacre, 35 
 Ohio St. 627; Grant v. Baker, 12 
 Oreg. 329; Bradwell v. Pittsb. 
 West End Pass. Ry. Co., 139 Pa. 
 St. 404; Carter v. Columbia, etc., 
 R. Co., 19 S. C. 20, 45 Am. Rep. 
 754; Hill v. New Haven, 37 Vt. 
 Soi; Indianapolis St. Ry. Co. v. 
 Robinson (Ind.), 61 N. E. 936. 
 Where it is claimed that the death 
 of plaintiff's intestate resulted from 
 serious injuries sustained in con- 
 sequence of defendant's negli- 
 gence, and it is proved that a short 
 time after the accident he devel- 
 oped progressive muscular atrophy, 
 but that the immediate cause of 
 his decease was acute pulmonary 
 tuberculosis, a germ disease in no 
 way connected with the accident 
 or shown to have resulted from 
 the muscular atrophy, a finding 
 that the tuberculosis resulted from 
 the accident will not be sustained 
 upon the theory, unsupported by 
 any evidence, that the intestate was 
 so weakened by his injuries and 
 the muscular atrophy resulting 
 therefrom, that it made him sus- 
 
 ceptible to tuberculosis, and there- 
 fore he contracted the latter di- 
 sease. Hoey V. Met. St. R. Co., 
 70 App. Div. (N. Y.) 60. 
 
 67. Kavanagh v. Wilson, 70 N. 
 Y. 179. 
 
 68. Hoes V. Third Ave. R. Co., 5 
 App. Div. (N. Y.) 154; Schmitt v. 
 Met. L. Ins. Co., 13 id. 122; Wohl- 
 fahrt V. Beckert, 92 N. Y. 49a In 
 a recent case it was held that it 
 was error for the court to instruct 
 the jury that if they believed the 
 testimony of the passenger — (who 
 had testified in an action for per- 
 sonal injuries claimed to have been 
 sustained by plaintiff while alight- 
 ing from the rear platform of a 
 car, in consequence of a premature 
 signal to start the train, that he 
 saw the plaintiff leave the car and 
 heard the gate slam, and that 
 through a side window he saw the 
 
 , plaintiff disappear after the train 
 had moved, and after the gate 
 was shut, although he did not tes- 
 tify that he saw the guard close 
 the gate, and the guard testified 
 that before the plaintiff reached 
 the gate on the rear platform of 
 the fourth car the gate on the 
 front platform of the fifth car had 
 been closed, and that the plaintiff 
 left the car in safety, and the acci- 
 dent resulted from his slipping on 
 the platform) — they should find 
 for the defendant — for the reason 
 that if they did not believe the 
 testimony of the guard, who was 
 
QUESTIONS OF EVIDENCE. 547 
 
 seeing an accident from a distance is no part of the res 
 gestce.^^ In an action because of injuries to a passenger on 
 a car by the breaking of a trolley wire, it was held proper 
 to prove, for the purpose of charging the company with 
 notice of its unsafe condition, that the same wire had broken 
 frequently during the same season.'" To prove that injuries 
 were the cause of a certain accident, testimony was given 
 by the plaintiff's sister to the efifect that she found the plain- 
 tifif's back, immediately after the accident, black and blue; 
 that she applied the liniment prescribed by a physician for 
 a period of two months; and the physician testified that the 
 plaintiff's head was injured by a scalp wound which required 
 four stitches, and that she was bruised and shaken up and 
 tegan to suffer from headache soon afterward.'' Evidence 
 as to the improper construction of a car step is not admissible 
 under an allegation that the motorman negligently released 
 the brake as plaintiff was attempting to board the car and 
 thus caused her injury.'^ When the petition in an action 
 
 an interested witness, that the gate from the window of his residence 
 
 on the front platform of the fifth actually did see it; and his wife 
 
 car had been closed before the testified that at the time the acci- 
 
 plaintiff attempted to leave the car, dent happened her husband, while 
 
 they might find that the gate which standing or sitting at the window, 
 
 the disinterested passenger heard suddenly uttered a cry and said: 
 
 close was the gate on the front "Oh, I have seen a woman thrown 
 
 platform of the fifth car. Fox v. from a car." 
 
 Manhattan Ry. Co., 67 App. Div. 70. Richmond Ry. & El. Co. v. 
 
 (N. Y.) 460. Bowles, 6 Am. Electl. Cas. 449, 92 
 
 69. Ehrhard v. Met. St. R. Co., Va. 738. 
 
 69 App. Div. (N. Y.) 124. In the 71. Lindemann v. Brooklyn 
 
 case cited, an action to recover Heights R. Co., 69 App. Div. (N. 
 
 damages resulting from the death Y.) 442. And see Saumby v. 
 
 of plaintiflf's intestate killed by fall- Rochester, 145 N. Y. 81 ; Hamel 
 
 ing or being thrown from defend- v. B. H. R. Co., 59 App. Div. (N. 
 
 ant's street car, a serious question Y.) 135. 
 
 arose as to whether the man who 72. Hansberger v. Sedalia El. 
 
 claimed to have seen the accident Ry. & P. Co., 82 Mo. App. 566. 
 
548 STREET SURFACE RAILROADS. 
 
 againpt the street railway company for injuring a newsboy 
 alleged that the gripman pushed plaintiff from the car, and 
 the evidence showed that the gripman first shoved at him 
 with a broom and then struck at him. with his hand, in 
 neither case touching him, and that plaintiff fell from the 
 car in dodging the threatened blow; the evidence is not 
 according to the allegation and a demurrer thereto should 
 be sustained/^ Evidence that on the happening of the col- 
 lision there was " a smash," " a severe shock," " a bang," 
 and " a bang again," and that the passengers were thrown 
 down or cast across the car, is sufficient to sustain a finding 
 that the collision was severe enough to cause plaintiff's in- 
 juries, although it appeared that no panes of glass in the car 
 were broken, and that other passengers were uninjured.'* 
 Contributive negligence, relied upon as a defense, may be 
 negatived by the plaintiff's testimony, and the credibility 
 of the testimony be submitted to the jury.'s Where plain- 
 tiff's testimony is corroborated only in part, and that by 
 but one witness, and six disinterested witnesses testified in 
 contradiction thereto, the verdict for the plaintiff was set 
 aside as contrary to the weight of evidence.''* Testimony 
 that the passenger attempted to board a street car on a dark 
 night when a shadow was cast around the car for several 
 feet, and fell into a ditch she could not see, which the rail- 
 
 73- Raming v. Met. St. Ry. Co., 76. Black v. Second Ave. R. Co., 
 
 IS7 Mo. 477, 57 S. W. 268. And 44 App. Div. (N. Y.) 333, 60 N. 
 
 see So. Ry. Co. v. Dyson, 109 Ga. Y. Supp. (94 St. Rep.) 631. And 
 
 103; Wright V. Railroad Co., 21 see Harris v. Second Ave. R. Co., 
 
 R- I- 554- 48 App. Div. (N. Y.) 118, 62 N. 
 
 74. McCready v. Staten Isl. R. Y. Supp. (96 St. Rep.) 562; Heus- 
 
 Co., SI App. Div. (N. Y.) 338, 64 ner v. Houston, etc., Ferry Co., 
 
 N. Y. Supp. 996. 7 'Misc. Rep. (N. Y.) 48, 57 St. 
 
 75- Choquette v. So. El. Ry. Co., Rep. (N. Y.) 528, 27 N. Y. Supp. 
 
 80 Mo. App. S15, 2 Mo. App. Rep. 365. 
 6SS- 
 
QUESTIONS OF EVIDENCE. 
 
 549 
 
 Toad company should have guarded against, authorizes a 
 finding that she was in the exercise of ordinary care.'^ A 
 passenger injured by being struck by the driver's whip while 
 riding on the driver's seat, where passengers are accustomed 
 to ride with knowledge of the carrier, is not guilty of negli- 
 g-ence.''® A letter sent to defendant stating that plaintiff 
 " was thrown from one of your cars " is sufficient to submit 
 to the jury the question as to whether the accident did occur 
 on one of defendant's cars.'^ It is competent to prove ex- 
 
 ^^. Call V. Portsmouth, K. & Y. 
 St. Ry. (N. H.), 45 All. 405. And 
 see Beecher v. Long Isl. R. Co., 
 161 N. Y. 222, 55 N. E. 899. 
 
 78. Sparks v. Citizens' Coach 
 Co. (N. J. C. C), 6 N. J. L. J. 36s. 
 
 79. Demann v. Eighth Ave. R. 
 Co., ID Misc. Rep. (N. Y.) 191, 
 62 St. Rep. (N. Y.) 476, 30 N. 
 Y. Supp. 926. And see Kunz- 
 mann v. N. Y., etc., R. Co., 8 
 Misc. Rep. (N. Y.) 689, 60 St. 
 Rep. (N. Y.) 822, 20 N. Y. Supp. 
 327; Corbett v. Brooklyn, etc., R. 
 Co., 84 Hun (N. Y.), 375, 65 S^ 
 Rep. (N. Y.) 872, 32 N. Y. Supp. 
 1141; affd., 154 N. Y. 772. In 
 the case last cited no one wit- 
 nessed the accident in which plain- 
 tiff's intestate was killed; and the 
 only proof was that he met his 
 death outside of the railroad train, 
 and between one of the cars and 
 the platform of the station; held, 
 that there was nothing on which 
 to predicate negligence on the 
 part of the railroad company. 
 
 As to sufficiency of evidence as 
 to negligence, see Ginnon v. N. 
 Y. & H. R. Co., 26 N. Y. Super. Ct. 
 25; Mooney v. H. R. Co., 28 id. 
 S48; Taylor v. D. D., etc., R. Co., 
 9 St. Rep. (N. Y.) 498; Bleier v. 
 
 Bushwick R. Co., id. 706; Brad- 
 ley V. Second Ave. R. Co., 90 
 Hun (N. Y.), 419, 70 St. Rep. (N. 
 Y.) 622, 35 N. Y. Supp. 918; Werle 
 v. Long Isl. R. Co., 98 N. Y. 650; 
 Murphy v. C. I. & B. R. Co., 36 
 Hun (N. Y.), 199; Merwin v. 
 Manhattan Ry. Co., 48 id. 608; 
 affd., 113 N. Y. 659, 16 St. Rep. 
 (N. Y.) 20, I N. Y. Supp. 267, 28 
 W. D. 565; De Soucey v. Manhat- 
 tan R. Co., 39 St. Rep. (N. 
 Y.) 79, 15 N. Y. Supp. 108; 
 Pollock V. Brooklyn, etc., R. 
 Co., 39 St. Rep. (N. Y.) 568, 15 
 N. Y. Supp. 189; affd., 133 N. Y. 
 624; Schapierer v. Third Ave. R. 
 Co., 30 St. Rep. (N. Y.) 209, 14 
 N. Y. Supp. 921; Mulvaney v. 
 Brooklyn City R. Co., i Misc. 
 Rep. (N. Y.) 425, 49 St. Rep. (N. 
 Y.) 637, 21 N. Y. Supp. 427; affd., 
 142 N. Y. 651, 60 St. Rep. (N. 
 Y.) 869; O'Malley v. Met. St. Ry. 
 Co., 3 App. Div. (N. Y.) 259, Ti 
 St. Rep. (N. Y.) 613, 38 N. Y. 
 Supp. 456; affd., 158 N. Y. 674; 
 Pick v. Met. St. Ry. Co., 26 App. 
 Div. (N. Y.) 84, 49 N. Y. Supp. 
 693; Coulahan v. Met. St. Ry. 
 Co., 28 App. Div. (N. Y.) 394, 
 SI N. Y. Supp. 137; Daly v. Cen- 
 tral R. of N. J., 38 App. Div. 
 
550 
 
 STREET SURFACE RAILROADS. 
 
 clamations indicating present suffering or pain made at the 
 time the injuries were received, or afterward.^" But dec- 
 larations of past suffering are inadmissible.^' Neither are 
 declarations as to the manner or cause of an injury compe- 
 tent.*^ Declarations of the carrier's servants, part of the 
 res gestw, are competent; they must however be shown to 
 have been made at the very time the injuries were inflicted.*^ 
 Where the action was defended on the ground that plaintiff 
 received her injuries on account of her intoxication, and it 
 appeared that she was arraigned in court the next morning 
 on charge of intoxication and plead guilty, but she denied 
 
 (N. Y.) 632, 57 N. Y. Supp. 44; 
 Hess V. Met. St. Ry. Co., 27 Misc. 
 Rep. (N. Y.) 823, 57 N. Y. Supp. 
 2,2.2. 
 
 80. Hagenlocher v. C. I. & B. 
 R. Co., 99 N. Y. 136; Laughlin 
 V. St. Ry. Co., 80 Mich. 154; Bir- 
 mingham Union Ry. Co. v. Hale, 
 90 Ala. 8, 8 So. 142. 
 
 81. Roche V. Brooklyn City & 
 N. R. Co., 105 N. Y. 294, II N. E. 
 63Q. 
 
 82. Chicago West. Div. Ry. Co. 
 V. Becker, 128 111. 545; Augusta 
 & S. R. Co. V. Randall, 79 Ga. 
 304; Perlmutter v. Highland St. 
 Ry. Co., 121 Mass. 497; Leahey v. 
 Cass Ave., etc., Ry. Co., 97 Mo. 
 165; Louisville, etc., Ry. Co. v. 
 Buck, 116 Ind. 566, 2 L. R. A. 
 520. 
 
 83. Williamson v. Cambridge R. 
 Co., 144 Mass. 148; Whittaker v. 
 Eighth Ave. R. Co., 51 N. Y. 
 295; Joslin V. Grand Rapids, etc., 
 Co., 53 Mich. 322; Vicksburg & 
 M. R. Co. V. O'Brien, 119 U. S. 
 99- 30 L. Ed. 299; Union Ins. Co. 
 V. Smith, 124 U. S. 424, 31 L. Ed. 
 S05, 8 Sup. Ct. Rep. 544; Pierce 
 
 V. Van Dusen, 78 Fed. 706, 47 U. 
 S. App. 339; Emerson v. Burnett, 
 II Colo. App. 88, 52 Pac. 753; 
 First Nat. Bank v. North, 6 Dak. 
 141, 41 N. W. 738; Cherokee, etc., 
 Coal Co. V. Dixon, 55 Kan. 70, 
 39 Pac. 694; Geary v. Stephenson, 
 169 Mass. 31, 47 N. E. 509; Idaho, 
 etc., Co. V. Fireman's Fund Ins. 
 Co., 8 Utah, 46, 29 Pac. 827, 17 
 L. R. A. 588; Hall v. Murdock, 
 119 Mich. 392, 78 N. W. 330; 
 Bergeman v. Ind., etc., Ry., 104 
 Mo. 86, 15 S. W. 994; Short v. 
 Northern Pac. E. Co., i N. Dak. 
 164, 45 N. W. 707. 
 
 A declaration by the motorman 
 of an electric car made while the 
 car was still on the body of one 
 it had run down, that " I saw the 
 child but thought I could pass it; " 
 or, " This is a terrible thing, I saw 
 the child but thought I could run 
 past it," — is admissible as part 
 of the res gestae in an action for 
 the injury. Sample v. Consol. L. 
 & Ry. Co. (W. Va. Sup. Ct. App.), 
 24 Am. & Eng. R. Cas. (N. S.) 
 380, 40 S. E. 597 
 
QUESTIONS OF EVIDENCE. 55I 
 
 having so plead, and the officer who escorted her to the court 
 testified that she asked him to plead for her and he did so; 
 held to be error not to permit him to testify as to the plea 
 he made, or to admissions made to him by plaintiff as to 
 her condition the night before.** In an action by a passenger 
 for injuries suffered, there was no evidence that the defendant 
 company owned or operated a road at the place where the 
 plaintiff was hurt, except a map by the railroad company 
 which designated the railroad by name, and there was no 
 evidence as to the existence of the defendant corporation, or 
 that it owned or operated any railroad. The engineer mak- 
 ing the map testified that certain lines designated the street 
 railroad tracks. The judgment in favor of the plaintiff was 
 reversed.®'*^ What took place in the car at the time of an 
 accident is competent as illustrating the severity of the 
 injury.*'*'' In an action where it is claimed the injuries were 
 occasioned by negligently running against a person at a 
 street crossing and failing to check the speed of the car, it 
 was held not error to receive testimony that the brake and 
 controller of the car worked hard and were out of repair; 
 the testimony however being limited to the question of the 
 manner in which the car should have been run when ap- 
 proaching the place of the accident.*''" An instruction in an 
 action to recover for personal injuries resulting from a defect- 
 ive board in the platform at one of defendant's stations, 
 declaring without qualification that the person injured was 
 guilty of negligence if she stepped into the hole or on a 
 rotten board without looking or taking any precaution to 
 
 84. Link V. Brooklyn Heights R. 84b. Louisville & N. R. Co. v. 
 
 Co., 64 App. Div. (N. Y.) 406, 72 Crothers (Ky.), 65 S. W. 833. 
 
 N. Y. Supp. 75. 84c. South Chicago City Ry. Co. 
 
 84a. Citizens' St. R. Co. v. Stock- v. Purvis, 193 111. 454. 61 N. E. 
 
 dell (Ind.), 62 N. E. 21. 1046. 
 
552 
 
 STREET SURFACE RAILROADS. 
 
 ascertain the danger, is properly refused, as the situation 
 may have been such that she could not see the hole, or the 
 appearance of the plank may not have indicated the defect.**^ 
 An instruction that the driver of a coach was entitled to the 
 presumption that the car which collided with him would be 
 moved at the point of collision under a reasonable state of 
 control so that it might be readily stopped in case of emer- 
 gency to give him an opportunity to get over the tracks in 
 safety, is proper.*'*^ 
 
 § 42. Questions for jury in. sucli cases. — The case should be 
 submitted to the jury where the injuries were claimed to 
 have been sustained on alighting from a car, and plaintiff 
 and another testified that the car had come to a full stop; 
 that she started to put her foot on the pavement and the 
 car started ofif suddenly and she was thrown down; but the 
 conductor testified that he warned plaintifif, and there was 
 some evidence that plaintiff and her husband stated at the 
 time that the conductor was not to blame.^s It is not error 
 to refuse to instruct, in an action for injuries while alighting, 
 that if plaintifif knew the car had started before he attempted 
 to get off he was guilty of contributory negligence.*^ Where 
 plaintiff was corroborated by two others in her testimony 
 that just as she stepped from the car it started with a jerk 
 and threw her down, and the conductor, motorman, and 
 three others gave testimony that she alighted while the car 
 was in motion, but some of them did not see all the transac- 
 
 84d. Indianapolis St. R. Co. v. 85. Willis v. Met. St. Ry. Co., 
 
 Robinson (Ind.), 61 N. E. 936. 63 App. Div. (N. Y.) 332, 71 N. Y. 
 
 846. Reilly v. Brooklyn Heights Supp. 554. 
 R. Co., 65 App. Div. (N. Y.) 453, 86. Taylor v. N. Y. C, etc., R. 
 
 72 N. Y. Supp, 1080. Co., 63 App. Div. (N. Y.) 586, 71 
 
 N. Y. Supp. 884. 
 
QUESTIONS FOR JURY. 553 
 
 tion, it was held that a verdict for plaintiff was not against 
 the evidence.*'' Where it appeared that plaintiff sat on the 
 east side of a south-bound car near the rear; that a short 
 distance south of a street intersection the car met a wagon 
 going north on the east track in front of a north-bound car; 
 that the wagon, to get out of the way of the car behind it, 
 crossed to the west and collided with the rear of the south- 
 bound. car, striking and injuring the plaintiff; that the grip- 
 man of the sottth-bound car ran it across the intersecting 
 street at full speed, and the wagon driver first started to 
 cross the west track when the car was about seventy-five 
 feet away and his wagon was so heavy that it could not be 
 stopped at once, it was held that the question of negligence 
 was for the jury.^* Always where the testimony of the 
 plaintiff and of the defendant in such an action is conflicting, 
 and it is contradicted that the plaintiff was a passenger at 
 the time he was injured, a question of fact for the jury is 
 presented.*' In Illinois, special interrogatories requested 
 upon a material question of fact upon which the testimony 
 was conflicting should be submitted to the jury.'" Plaintiff 
 testified that in a rush of passengers to the rear of the car 
 she either fell off or was shoved off; held, that the case was 
 properly submitted to the jury, though the preponderance 
 of the evidence showed that she jumped off." Where the 
 
 87. Nash V. Yonkers R. Co., 63 89. Gaffney v. St. Paul City Ry. 
 -App. Div. (N. Y.) 315, 71 N. Y. Co., 81 Minn. 459. 84 N. W. 304- 
 Supp. 594. And see Ericius v. See . Cunningliam v. D. D., etc., 
 Brooklyn Heights R. Co., 63 App. Co., 31 Misc. Rep. (N. Y.) 471, 
 Div. (N. Y.) 3S3, 71 N. Y. Supp. 64 N. Y. Supp. (98 St. Rep.) 3S0. 
 Sg6. go. Chicago City Ry. Co. v. 
 
 88. Keegan v. Third Ave. R. Bucholz, 90 111. App. 440. 
 
 Co., 34 App. Div. (N. Y.) 297, S4 9i- Choquette v. So. El. Ry. 
 
 N. Y. Supp. 391; affd., 16s N. Y. Co., 80 Mo. App. 515. 2 Mo. App. 
 ■fiaa, 59 N. E. 1124. Rep. 655. 
 
554 STREET SURFACE RAILROADS. 
 
 carrier claimed the injury to plaintifif's foot was due either 
 to improper care and treatment after she had alighted, or 
 to a diseased condition of the foot before; and also that the 
 accident and plaintifif's uncontradicted evidence showed that 
 she struck the ground with such force as to sprain and in- 
 jure her ankle; held not error for the trial judge to use the 
 word " violently " in his charge when speaking of the man- 
 ner in which her foot struck the pavement on the starting 
 of the car.s^ Where the injury was suffered in defendant's 
 horse car by collision with a coal cart belonging to the co- 
 defendants which was improperly driven upon the sidewalk 
 to unload, and the horse, not being able to hold it, backed 
 into the car, the driver of the latter imprudently endeavor- 
 ing to pass, it was held that the verdict for the plaintiff would 
 not be disturbed.53 Thg c^se should be submitted to the 
 jury where it simply appeared that plaintiff was riding in 
 one of defendant's street cars, which was being driven with 
 unusual speed, when it was struck by the pole of a truck 
 which penetrated through the front of the car, throwing 
 plaintiff from her seat and injuring her. It is not a natural 
 or a reasonable inference that such an accident could hap- 
 pen without some carelessness on the part of the driver of 
 the car, and the driving at an unusual rate of speed was in- 
 ferentially one cause or occasion of the accident, calling for 
 an explanation. 9* It is the duty of a street railroad com- 
 pany, in the exercise of its franchise, to oflfer to intending- 
 passengers a reasonable opportunity safely to board its cars. 
 
 92. McCormick v. Pittsb. & B. 94. HBl v. Ninth Ave. R. Co., 
 
 Tract. Co., 13 Pa. Super. Ct. 109 N. Y. 239. And see O'Neill 
 
 638- V. D. D., etc., R. Co., 59 N. Y. 
 
 93- Seidlinger v. Brooklyn City Super. Ct. 123, 36 St. Rep. (N. 
 
 R. Co., 28 Hun (N. Y.), 503; affd., Y.) 934, 15 N. Y. Supp. 84; affd.,, 
 
 97 N. Y. 642. 129 N. Y. 125. 
 
QUESTIONS FOR JURY. 555 
 
 But where it is claimed that an accident was occasioned by 
 the negligence of the driver of defendant's car proceeding 
 in a direction opposite to that which the plaintiff was board- 
 ing on a parallel track, it is the duty of the court to charge 
 the jury that negligence cannot be predicated on anything 
 the driver of that car did or omitted to do, since the only 
 allegation of negligence concerning the management of that 
 vehicle is, that the driver did not perceive when he ought to 
 have perceived the plaintiff falling from the car that was 
 coming down; if the driver fulfilled the duty which was in- 
 cumbent upon him to keep a vigilant watch upon his team 
 and the road ahead so as to avoid injuritig any one, he per- 
 formed his whole duty.^^ An able-bodied man seeking to 
 board a street car must establish that there is no obstacle 
 outside the car making it dangerous for him to get u^jon it. 
 He cannot recover for personal injuries occasioned from 
 contact with the wheel of a truck standing in the street 
 while he was getting on the car.^* When plaintiff claims 
 that the car was stationary when she started to alight, she 
 cannot upon the trial be allowed to shift her position and 
 go to the jury on the theory of defendant's negligence while- 
 she was alighting, the car being in motion.^'' 
 
 95. Black v. Brooklyn City R. affd., 158 N. Y. 674; Dillon v. 
 Co., .108 N. Y. 640. Forty-second St., etc., R. Co., 28. 
 
 96. .Moylan v. Second Ave. R. App. Div. (N. Y.) 404, Si N. Y. 
 Co., 125 N. Y. 583, Z7 St. Rep. (N. Supp. i45- 
 
 y.) 871. 97- Patterson v. Westchester El. 
 
 In the following cases the de- Ry. Co., 26 App. Div. (N. Y.) 
 
 fendant's negligence was held for 336, 49 N. Y. Supp. 796; Payne v. 
 
 the jury: Griffith v. Utica & M. Nashville, etc., Ry. Co., 106 Tenn. 
 
 R. Co., 43 St. Rep. (N. Y.) 835, 167, 61 S. W. 86; Kuhlman v. Met. 
 
 17 N. Y. Supp. 692; afifd., 137 N. St. R. Co., 30 Misc. Rep. (N. Y.) 
 
 Y. 566, so St. Rep. (N. Y.) 933; 4i7, 62 N. Y. Supp. (96 St. Rep.) 
 
 O'Malley v. Met. St. Ry. Co., 3 466; Schulz v. Second Ave. R. Co.,^ 
 
 App. Div. (N. Y.) 253, 73 St. Rep. 12 App. Div. (N. Y.) 445, 42 N. Y. 
 
 (N. Y.) 613, 38 N. Y. Supp. 456; Supp. (76 St. Rep.) 710. 
 
556 STREET SURFACE RAILROADS. 
 
 § 43. . Instructions to jury in such cases. — Where there is evi- 
 dence in an action for injuries received by a passenger get- 
 ting off a street car that he had stepped from the car before 
 its speed was increased, it is error to instruct that the injury 
 was caused by such increase of speed.'* It is improper to 
 charge in an action wherein it is claimed the injuries re- 
 suhed from being thrown from the step of a street car while 
 the passenger attempted to alight, that a passenger on a 
 street car has a right to alight therefrom at any time he or 
 she may desire if the car is stopped for any purpose what- 
 ever, without giving any signal; such instruction is abstract 
 and lacking in applicability to the facts.'' Where the action 
 is based on evidence of the negligence of the conductor of 
 the car in stopping it to adjust the trolley after it had been 
 thrown off by a passenger, a request to charge that the 
 proximate cause of the collision and injury was the throwing 
 off of the trolley is properly refused.' If the claim be that 
 plaintiff 'was injured while boarding the car by reason of its 
 sudden starting, an instruction that to warrant a finding that 
 the injury was caused by the want of ordinary care on the 
 part of the conductor, the jury must find that the accident 
 might reasonably have been expected as a result of his con- 
 duct by such conductor in the exercise of ordinary care as 
 " a man of intelligence having a knowledge that may be 
 reasonably expected and ought to have been had " in doing 
 such work, is erroneous, since it permitted the jury to use 
 as a standard their idea of what a conductor ought to be, 
 instead of what they usually are.^ If the claim be that the 
 
 98. Root V. Des Moines City R. i. Blanchette v. Holyoke St. R. 
 Co. (Iowa), 83 N. W. 904. Co., 175 Mass. 51, 55 N. E. 481. 
 
 99. Holmes v. Aslitabula R, T. 2. Dehsoy v. Milwaukee El. Ry. 
 Co., 10 O. C. D. 638. & L. Co. (Wis.), 85 N. W. 973, 
 
INSTRUCTIONS TO JURY. 55;7 
 
 injuries were sustained in being thrown from the car shortly 
 after it had crossed the tracks of another company in viola- 
 tion of a city ordinance requiring cars to stop before crossing 
 tracks of other companies, the court may properly instruct 
 that if the car was not stopped at the crossing, and the 
 failure to stop contributed to its derailment, such failure 
 could be considered in determining whether the company 
 was liable.^ If the court explain to the jury what consti- 
 tutes an unavoidable accident and instruct them that if the 
 injury to the plaintiff were the result of such an accident 
 the defendant is not liable, the instruction is not open to the 
 objection that " it did not permit the jury to consider the 
 defense that said injury was caused by an unavoidable acci- 
 dent."'* Where the plaintiff limits himself to a right to re- 
 cover for the negligence of defendant (where it appeared 
 that the car got away from the gripman on an incline) and 
 the defendant contends that the injury was caused by un- 
 avoidable casualty, it is proper to charge that though plain- 
 tiff was hurt without his fault, yet defendant was not liable 
 unless the jury find that the car went down the incline by 
 reason of defendant's negligence; and if by reason of any un- 
 avoidable casualty it got beyond the control of defendant's 
 gripman, then there was no negligence. * Where the in- 
 juries occasioned by being dragged along are alleged in the 
 complaint only as an incident to the primary act of negli- 
 gence, a charge that even if the car started before plaintiff 
 attempted to alight, yet, if it were possible for defendant's 
 servants to have stopped the car in a shorter space, and by 
 reason of their neglect in that regard she was injured, then 
 
 3. Macon Consol. St. R. Co. v. 5- Fearey v. Met. St. Ry. Co. 
 Barnes (Ga.), 38 S. E. 756. (Mo.), 62 S. W. 4S2. 
 
 4. Id. 
 
558 STREET SURFACE RAILROADS. 
 
 it was negligence, is error.* It is proper in such an action 
 for the court in its charge to the jury to comment on the 
 failure of the defendant to produce the driver and conductor 
 as witnesses.^ 
 
 § 44. Damages in such cases. — It is not intended to call at- 
 tention in this section to matters of law that have been for 
 a. long time well settled, nor to announce elementary rules 
 on the measure of damages, but only to cite some recent 
 rulings where the damages awarded have been held to be 
 excessive or inadequate, or where something was involved 
 in the ruling not according to the usual course. A verdict 
 for defendant will not be reversed because mere nominal 
 damages should have been awarded to the plaintiff.* A 
 verdict of $1,500 in favor of a widow sixty-three years of 
 age, a self-supporting washerwoman in vigorous health, 
 
 6. Kelley'v. Third Ave. R. Co., the complaint upon the merits, nor 
 25 App. Div. (N. Y.) 603, so N. to set aside the answers, save one, 
 Y. Supp. (84 St. Rep.) 426. to the specific questions, nor to set 
 
 7. Ripley V. Second Ave. R. Co., aside the general verdict. In such 
 8 Misc. Rep. ' (N. Y.) 449, 59 St. case he should either nonsuit the 
 Rep. (N. Y.) 37, 28 N. Y. Supp. plaintiff or direct the jury to ren- 
 683. The jury in a negligence case der a general verdict. Hoey v. 
 should not be instructed that a Met. St. R. Co., 70 App. Div. (N. 
 vifitness, as to an important fact, Y.) 6i. And see Fay v. Brooklyn 
 had either perjured himself or had H. R. Co., 69 App. Div. (N. Y.) 
 told the truth, because the jury 563. 
 
 would have no opportunity to find 8. Pronk v. Brooklyn Heights 
 
 that he might have been mistaken. R. Co., 68 App. Div. (N. Y.) 390. 
 
 Smith V. Lehigh Val. R. Co., 170 In the case cited it was claimed 
 
 N. Y. 390. When specific ques- that plaintiff had been thrown 
 
 tions of fact have been submitted from her seat in defendant's car 
 
 to the jury to be passed upon by when the car ran off the track 
 
 them, with instructions to render a upon a blind switch; and practi- 
 
 general verdict also, the judge cally the sole issue submitted to 
 
 presiding at the trial has no power, the jury was whether the plaintiff 
 
 after the jury have answered the suffered any injury from the acci- 
 
 specific questions of fact and ren- dent; and the jury found for the 
 
 ■dered a general verdict, to dismiss defendant. 
 
DAMAGES. 
 
 559 
 
 /arning, for the support of herself and her unmarried, sick, 
 and dependent daughter, from eight to eleven dollars a week, 
 it appearing that from the accident she sufifered constant 
 pain and had become permanently lame, bent, and decrepit 
 and an apparent charge for life upon her unmarried daughter, 
 is not excessive.9 A verdict of $7,000 for a man twenty- 
 eight years old who, prior to the accident, earned $20 a 
 month besides his board and washing, is not excessive, where 
 it appeared that after being idle about a year after the acci- 
 dent he went to work again, earning about $5 per month 
 besides his board and washing; and a verdict of $1,000, ren- 
 dered upon a former trial of the case, was properly set aside 
 as inadequate. The injuries necessitated the amputation of 
 one of his legs below the knee.'° Where the action is for 
 an assault by a conductor of the defendant, and it appears 
 that the plaintiff was badly beaten and disabled, a verdict 
 of $2,500 is not excessive." A recovery may always be had 
 for loss which the plaintiff may have suffered because of in- 
 ability to attend to his business after the accident." Where 
 plaintiff was badly injured in falling eighteen feet from a 
 platform on a pole supporting electric wires, the fall being 
 caused by a shock of electricity, a verdict of $1,500 was held 
 not excessive.'^ A verdict of $300 is not excessive for one 
 whose knee was badly injured and who was under the con- 
 
 9. Sidmond v. Brooklyn H. R. active and in good health and en- 
 Co., 69 App. Div. (N. Y.) 471. gaged in his own business which 
 
 ID. Eberhardt v. Met. St. Ry. was extensive, and that he held 
 
 Co., 69 App. Div. (N. Y.) 560. positions of trust in several finan- 
 
 11. Birmingham Ry. & El. Co. cial institutions. Because of the 
 V. Baird (Ala.), 30 So. 456, injury he became afiflicted with 
 
 12. Storrs V. Los Angeles Tract. heart ' disease, and his capacity to 
 Co. (Cal.), 66 Pac. 72. In the do business was impaired, the verdict 
 case cited, it appeared the plaintiff was $2,000. Held not excessive, 
 was seventy-five years old, and up 13. Tedford v. Los Angeles El. 
 to the time of the injury had been Co. (Cal.), 66 Pac. 76. 
 
560 STREET SURFACE RAILROADS. 
 
 stant care of a physician for two months and had not fully 
 recovered nearly a year later.'* Where the young man in- 
 jured was twenty-three years of age, was studying law, and 
 engaged in the business of publishing a newspaper and sub- 
 sequent to the injury was unable to do any work, either 
 physical or mental, or to efifect a cure, and expended 
 $1,465.45 for necessary medical attendance, $3,000 was not 
 excessive.''^ A verdict for $5,000 was excessive to plaintiff 
 who suffered an incomplete fracture of the tibia of his left 
 leg and in twelve days was discharged from the hospital at 
 his own request, went home, and there remained in bed for 
 about two weeks, from that time for about two months 
 walked on crutches, able to do some work, and in the fol- 
 lowing spring was employed at plowing and walked four 
 miles to and from his work and did the work of a regular 
 hand.'^ A woman injured, two months in the hospital, and 
 walking on crutches for four years thereafter, with her re- 
 covery a matter of doubt, is entitled to $2,500, and such 
 verdict is not excessive.''' . Where the injury occasioned a 
 fracture of the thigh bone of a young man, rupture of the 
 ligaments of the knee joints, a fracture of the lower bone 
 supporting the frame of the eye, a verdict for $6,000 was 
 not excessive.'^ A verdict of $2,000 is not excessive for a 
 painful injury to plaintiff's foot causing him to lose much 
 time and rendering him a slight cripple for life.'' A ver- 
 dict of $2,800 is excessive for a woman sustaining a simple 
 fracture of the small bone of the leg near the ankle joint 
 
 14- Sheyer v. Lowell (Cal.), 66 17. Chicago City Ry. Co. v. 
 Pac. 307. Cooney, 95 111. App. 471. 
 
 15- City of Salem v. Webster, 95 18. City of Chicago v. Baker, 95 
 111. App. 120; afifd., 61 N. E. 323. 111. App. 413. 
 
 16. Chicago, etc., Ry. Co. v. 19. Bowling Green S. Co. v. 
 
 Stickman, 95 111. App. 4. Capshaw, 64 S. W. 507. And see 
 
DAMAGES. 561 
 
 and a strain of the ligaments of the leg, where she recovered 
 except for a slight limp which would not affect her earning 
 capacity, and she suffered slightly in her ankle in rainy 
 weather and when standing on her foot all day; there was 
 no disfiguration of the ankle except a slight thickening of 
 the ligaments and a slight inflammation.^" A verdict of 
 $7,250 for loss of services of plaintiff's wife, forty-eight years 
 old, where she was practically incapacitated for discharging 
 nearly all her wifely duties, was not excessive.^' A verdict 
 of $12,750 to a woriian thirty-one years old, living with her 
 husband, a policeman, and doing all the housework, is not 
 excessive, she having suffered a sprained back, a very bad 
 sprain of the right ankle, a laceration of its ligaments, three 
 fractures and a laceration of the left ankle, and much attend- 
 ant pain and suffering, a weakness in the right foot, a de- 
 formity in the left, and it was impossible for her to get her 
 heel on the ground, nor would the foot support the normal 
 weight of the body. There was also permanent inflamma- 
 tion ; she required support to stand — a crutch any way — 
 suffered continuous pain, and her condition was likely to 
 be permanent.^^ A verdict for $1,054 not excessive for a 
 farmer struck by a crossbar on defendant's car, who thereby 
 became senseless and ill, suffering great pain and dizziness, 
 attended with nausea and vomiting, was unable to work or 
 to go out into his fields to superintend his men without a 
 sunshade, and the pain continued throughout the following 
 
 Louisville, H. & St. L. R. Co. v. 56 App. Div. (N. Y.) 555, 67 N. Y. 
 
 Bowlds (Ky.), 64 S. W. 957. Supp. (loi St. Rep.) S54- 
 
 20. Collins V. City of Janesville 22. Leonard v. Brooklyn H. R. 
 (Wis.), 87 N. W. 241. Co., 57 App. Div. (N. Y.) 125, 67 
 
 21. Zingreve v. Union Ry. Co., N. Y. Supp. (loi St. Rep.) 985. 
 
 35 
 
562 STREET SURFACE RAILROADS. 
 
 summer. ^^ Four hundred dollars not excessive for a man 
 seventy years old thrown down by the sudden starting of a 
 street car and sustaining painful injuries; he sufifered pain 
 in his side at the time of the trial, three months after the 
 accident. There was no evidence of his earning capacity, 
 except that he had been able to support himself.^* One 
 thousand four hundred dollars for injury to a woman not 
 excessive where she was rendered unconscious by the acci- 
 dent and remained so for three days. Her knee and elbow 
 were bruised and bleeding, the left side of her head swollen, 
 ear bleeding; in bed three weeks and at home for seven 
 weeks, and she suffered pain in her head and hip at the 
 time of the trial, pains in her ear, her ear buzzed ; she had 
 headaches, and her weight was reduced twenty pounds.^s 
 Where the injuries to a man fifty years of age were perma- 
 nent and grew progressively worse and required the ex- 
 penditure of $600 for physician's services, a verdict for 
 $3,500 was not excessive.^^ Seven thousand dollars for a 
 healthy young man receiving injuries necessitating the am- 
 putation of a leg above the knee is not excessive.^' Twenty 
 thousand dollars for injuries to a child three years of age 
 which rendered him a physical wreck, permanently impair- 
 ing his faculties, with little hope of recovery, not excessive.^* 
 Three thousand dollars to a man capable of earning $12 a 
 
 23. Smith V. Nassau El. R. Co., 26. Mowbray v. Brooklyn H. R. 
 57 App. Div. (N. Y.) 152, 67 N. Co., 59 App. Div. (N. Y.) 239, 69 
 Y. Supp. (loi St. Rep.) 1044. N. Y. Supp. (103 St. Rep.) 435. 
 
 24. French v. Brooklyn H. R. 27. Cosselmon v. Dunfee, 59 
 Co., 57 App. Div. (N. Y.) 204, 68 App. Div. (N. Y.) 467, 69 N. Y. 
 N. Y. Supp. (103 St. Rep.) 287. Supp. (103 St. Rep.) 271. 
 
 25. Radjaviller v. Third Ave. R. 28. Lacs v. Everhard's Brew- 
 Co., 58 App. Div. (N. Y.) II, 68 eries, 61 App. Div. (N. Y.) 431, 70 
 N. Y. Supp. (102 St. Rep.) 617. N. Y. Supp. (104 St. Rep.) 672. 
 
DAMAGES. 
 
 563 
 
 week, incapacitated for work by the injury for fourteen 
 months, one of his legs made an inch shorter than before, 
 who experienced considerable pain in it, and was disabled 
 from doing all kinds of work that he did before, is not 
 excessive/9 Three thousand four hundred and one dollars 
 and twenty cents for a small child sustaining injuries which 
 necessitated the amputation of one limb and two toes from 
 the other, not excessive^" Eleven thousand five hundred 
 dollars not excessive for the loss of a leg above the knee to 
 a man fifty-four years of age, a compound fracture of the 
 right arm, bruising of the head, ribs, and face, and cutting 
 of the left hand, who had earned about $10 a week before 
 his injury and could earn only about $5 afterward, had been 
 employed for ten years by a telegraph company, and at the 
 time of the accident was a roundsman in charge of six or 
 eight men.3' One thousand nine hundred dollars not ex- 
 cessive for a woman where the injuries occasioned certain 
 tumors, and it was necessary to permit a surgical operation, 
 and a physician testified that there was a defective condition 
 which would be permanent at the place where the tumors 
 were removed.^^ Three thousand dollars not excessive to 
 an employee employed to fire and wipe the engines of a 
 street railway company in its power-house, who was injured 
 by a fall through a defective floor, rupturing the Hgaments 
 of his back and breaking one of his ribs, injuring his head 
 so that he became entirely deaf in one ear.^^ Six thousand 
 
 29. Weingarten v. Met. St. Ry. (N. Y.) 361, 73 N. Y. Supp. (107 
 Co., 62 App. Div. (N. Y.) 364, 70 St. Rep.) 91- 
 
 N. Y. Supp. (104 St. R^p.) III3- 32. Jarvis v. Met. St. R. Co., 65 
 
 30. Fullerton v. Met. St. R. Co., App. Div. (N. Y.) 490, 7^ N. Y. 
 63 App. Div. (N. Y.) I, 71 N. Y. Supp. (106 St. Rep.) 829. 
 
 Supp. (los St. Rep.) 326. 33- Chicago Gen. Ry. v. McNa- 
 
 31. Hill V. Starin, 65 App. Div. mara, 94 HI- App. 188. 
 
564 STREET SURFACE RAILROADS. 
 
 dollars not excessive to a workman who loses his foot and 
 a part of his leg.^'* Seven thousand five hundred dollars 
 not excessive to a healthy, strong, active man, capable of 
 hard manual labor, for thirteen years employed by a single 
 firm as a teamster, forty years of age, earning capacity $12 
 a week; after the injury he had pains in his stomach, breast, 
 and back, and in his legs, so that he could use them but 
 very little; other complications also.^^ Fifteen thousand 
 dollars for the loss of both legs, where artificial limbs cannot 
 be used, not excessive.^* Ten thousand dollars excessive 
 and reduced to $3,500, where the employee's leg was broken 
 in two places above the ankle, the bones crushed and ankle 
 sprained, a fracture of the right leg below the knee, so that 
 four months after the accident he was barely able to get 
 around on crutches ; left leg permanently weakened, not prob- 
 able that he would be able to work within ten months from the 
 date of the accident; thirty years of age and earning $2.25 a 
 day.^^ One thousand dollars for breaking leg not unreason- 
 able.3* Twelve thousand five hundred dollars not excessive 
 for a healthy man fifty-two years of age, earning from $1.75 
 to $3 per day in addition to what he made from his farm, 
 who was permanently injured, totally incapacitated for work, 
 and suffered a great deal of pain.^s Eighteen thousand dol- 
 
 34- in. Central R. Co. v. Aland, 39. International & G. N. R. Co. 
 94 111. App. 428. V. Woodward (Tex. Civ. App.), 63 
 
 35- Chicago City Ry. Co. v. An- S. W. 1051. For other recent 
 derson, g^ 111. App. 419. cases where motions have been 
 
 36. 111. Central R. Co. v. Stew- made to set aside verdicts as ex- 
 art (Ky.), 63 S. W. .596. cessive, see Macon Consol. St. 
 
 37- Moore v. W. R. Pickering R. Co. v. Barnes (Ga.), 38 S. E. 
 Lumbering Co., 105 La. Ann. 504, • 756; Union Bridge v. Teehan, 92 
 
 29 So. 990. 111. App. 259; Yazoo & M. V. R. 
 
 38. Wiczynski v. American Sugar Co. v. Martin (Miss.), 29 So. 829; 
 
 'Refining Co. (N. J. Sup.), 49 Atl. Perrette v. City of Kansas City 
 
 53°- (Mo.), 62 S. W. 448; Hires v. Atl. 
 
DAMAGES. 565 
 
 lars not excessive for a young woman whose injuries were 
 permanent and consisted of a broken arm so lacerated that 
 it could not be set straight; made incapable of movement, 
 and a fracture of the skull from which a part of the bone was 
 removed, which often became inflamed, causing nervousness, 
 headaches, loss of memory, and weak eyes/" Where the 
 complaint in an action to recover damages for injuries re- 
 ceived in operating a street car alleges that the plaintiff 
 " was prevented from attending to her duties as a manu- 
 factory employee," she is entitled thereunder to testify upon 
 the trial how much she earned as wages, as a basis for the 
 recovery of her loss of wages.*' Permanent injuries should 
 be pleaded; but an error in allowing proof of such special 
 damages is cured by instruction to the jury at the close of 
 the trial in efifect to disregard such evidence and not to 
 award damages for future consequences.'*^ A verdict of $250 
 as compensation for indignity, humility, and injury to feel- 
 ings received from a technical assault committed in ejecting 
 the person from the street car, is excessive."*^ In determin- 
 ing the value of plaintiff's services, the jury should take into 
 
 City R. Co. (N. J. Sup.), 48 Atl. Tenn. 415, 58 S. W. 7?,T, Rush v. 
 
 1002; Mich. Cent. R. Co. v. Water- Spokane Falls & N. Ry. Co., 23 
 
 worth, 21 Ohio C. C. 495, 11 O. Wash. 501, 63 Pac. 500. 
 
 C. D. 621; Blackswell v. O'Gor- 40. Stewart v. Long Isl. R. Co., 
 
 man Co. (R. I.), 49 Atl. 28; Sher- 54 App. Div. (N. Y.) 623, 66 N. 
 
 man S. & S. Ry. Co. v. Eares Y. Supp. 436; aiifd., 166 N. Y. 604, 
 
 (Tex. Civ. App.), 61 S. W. SSo; 59 N. E. 1130. 
 
 Wren t. Golden T. Min. Co. 41- Russell v. Met. St. Ry. Co., 
 
 (Wash.), 64 Pac. 174; North Chi- 35 Misc. Rep. (N. Y.) 293. 
 
 cago St. R. Co. V. Smadraff, 89 42. Crow v. Met. St. Ry. Co., 26 
 
 111. App. 411, S9 N. E. 527; Chesa- N. Y. L. J. 2319 (No. 149 of March 
 
 peake & O. Ry. Co. v. Davis 29. 1902)- 
 
 (Ky.), s8 S. W. 698, 60 id. 14, 22 43- Conlon v. Met. St. Ry. Co., 
 
 Ky. L. Re^. 748, id. 1156; Walton 34 Misc. Rep. (N. Y.) 394, 69 N. 
 
 V. Chattanooga R. T. Co., 105 Y. Supp. 653. 
 
566 
 
 STREET SURFACE RAILROADS. 
 
 consideration the question whether or not plaintiff would 
 have procured employment had he been at his place of des- 
 tination during the time he was delayed, where the action is 
 brought for breach of contract in transportation/* 
 
 44. Ransberry v. North Ameri- 
 can Transp. & T. Co., 22 Wash. 
 476, 61 Pac. 154. And see Inter- 
 national & G. N. R. Co. V. Samp- 
 son (Tex. Civ. App.), 64 S. W. 
 692. If a new trial be granted be- 
 cause an excessive verdict in favor 
 
 of the plaintifif is rendered, the de- 
 fendant should not be required to 
 pay the costs and disbursements of 
 the original trial. Helgers v. S. I. 
 M. R. Co., 69 App. Div. (N. Y.) 
 570. 
 
LEGISLATIVE POWER TO TAX. 567 
 
 CHAPTER VII. 
 Taxes; Special Assessments- License Fees. 
 
 Section i. Legislative power to tax. 
 
 2. Uniformity required by Constitution. 
 
 3. Exemption from taxation. 
 
 4. Commutation for taxes. 
 
 5. Taxation of tangible property. 
 
 6. Taxation of same railroad property in several municipalities." 
 
 7. Taxation of capital stock. 
 
 8. Taxation of franchise. 
 
 9. Taxation of earnings. 
 
 10. License fees. 
 
 11. Effect of consolidation. 
 
 12. Special assessments. 
 
 § 1. Legislative power to tax.— The power of taxation is 
 vested in the legislature and is practically absolute, except 
 as restrained by constitutional limitations. All its incidents 
 are within the control of the legislature. The purposes for 
 which a tax shall be levied; the extent of taxation; the ap- 
 portionment of the tax; upon what property or class of per- 
 sons the tax shall operate; whether the tax shall be general 
 or limited to a particular locality, and in the latter case the 
 fixing, of a district of assessment; the method of collection, 
 and whether the tax shall be a charge upon both persons and 
 property, or only on the lands, are matters within the discre- 
 tion of the legislature, and in respect to which its determina- 
 tion is final." It has power to form taxing districts for 
 special purposes, without regard to the boundaries of political 
 or municipal subdivisions of the State.^ It determines all 
 questions of discretion or policy in hearing and apportioning 
 taxes; it makes all the necessary rules and regulations and 
 
 I. Genet v. City of Brooklyn, 272; State v. South-Penn Oil Co., 
 
 99 N. Y. 296, 306; State v. County 42 W. Va. 80, 24 S. E. 688. 
 
 of Kings, 125 id. 312, 320, 34 2. Gilson v. Rush Co., 128 Ind. 
 
 St. Rep. (N. Y.) 782, 26 N. E. 6s, 27 N. E. 235, 11 L. R. A. 835. 
 
568 STREET SURFACE RAILROADS. 
 
 decides upon the agencies by means of which the taxes shall 
 be collected. When, as may sometimes happen, the legisla- 
 ture transcends its functions and enacts, in the case of a tax 
 law, a law whereby the property of the citizen is confiscated 
 or taken for private purposes, the judiciary has the right and 
 duty to interpose.3 The legislature cannot be held to have 
 intended to surrender the taxing power unless its intention 
 to do so has been declared in clear and unmistakable words. 
 When there is no express contract against taxation in the 
 charter of a corporation, it takes its charter subject to the 
 same right of taxation in the State that applies to all other 
 privileges or property. The franchise to build and run a 
 street surface railroad is as much subject to taxation as any 
 other property.-* It is a franchise obtained through power 
 given to the city by the State, but the State reserves the 
 power to regulate such franchise and impose conditions upon 
 it; it reserves the power to determine the question of the 
 exemption of the company from taxation and to prescribie 
 what burdens should be imposed upon it for the public good 
 in the enjoyment of its franchise. Manifestly, such power 
 of the State would exist if the right to occupy the streets with 
 tracks were granted to the company directly by an act of the 
 legislature of the State; and the case is not changed by the 
 fact that the franchise is granted by a municipality. It is not 
 in the power of the municipality by any contract with the 
 company constructing the railroad to deprive the legislature 
 of the State of the power to tax the company.^ The Consti- 
 
 3. Thomas v. Gay, 169 U. S. 192, 36 L. Ed. 121, 12 Sup. Ct. Rep. 
 
 264, 283, 42 L. Ed. 740, 747, 18 406. 
 
 Sup. Ct. Rep. 340; Knoxville & O. 5. Sioux City St. R. Co. v. Sioux 
 
 R. Co. V. Harris, 99 Tenn. 684, 43 City, 138 U. S. 98, 34 L. Ed. 898, 
 
 S- W. 115. 9 Ry. & Corp. L. J. 251, II Sup. 
 
 4- New Orleans City & L. R. Ct. Rep. 226, 46 Am. & Eng. R. 
 
 Co. V. New Orleans, 143 U. S. Cas. 169. 
 
LEGISLATIVE POWER TO TAX. 569 
 
 tution of the United States does not profess in all cases to 
 protect property from unjust and oppressive taxation by the 
 States. That is left to the State Constitutions and State laws.* 
 The legislature may confer power upon municipal corpora- 
 tions to tax street surface railroads.'' But it is not to be pre- 
 sumed that the taxing power of the State is relinquished or 
 delegated unless the intention to do so be declared in clear 
 and unambiguous terms.* But the power to tax for municipal 
 purposes must be given to the municipality itself, and cannot 
 be delegated to other agencies, even upon the theory that as 
 the people elect the mayor and council, their appointees are 
 in fact selected by the people, or the people thereby assent to 
 such delegation of the taxing power.' The power of the 
 State to tax is limited to such property as is within its juris- 
 diction.'" Lines of railroad cannot be taxed for years that 
 passed away before they were built ; nor can they be subjected 
 to sale for the payment of taxes due upon other railroads, by 
 reason of the accidental circumstance that they have become 
 the property of the same corporation that owns the road 
 liable to taxation." A municipality has no inherent power to 
 tax a street surface railroad corporation operating within 
 
 6. New Orleans City & L. R. (4 Wheat.) 428, 4 L. Ed. 606; 
 Co. V. New Orleans, supra. People, Park Comrs. v. Detroit, 
 
 7. Chicago, St. L. & N. O. R. 28 Mich. 227, 15 Am. Rep. 202. 
 Co. V. Kentwood, 49 La. Ann. 931, 9. State, Howe v. Des Moines, 
 22 So. 192; State, Howe v. Des supra; Charleston v. Postal Tel. 
 Moines, 103 Iowa, 76, 72 N. W. Cable Co. (S. C. C. P.), 9 Ry- & 
 639, 39 L- R- A. 28s; People v. Corp. L. J. 129. 
 
 Chicago, SI 111. 17, 2 Am. Rep. 10. N. Y., L. E. & W. R. Co. 
 
 278. V. Penn., 153 U. S. 628, 38 L. Ed. 
 
 8. Keokuk & W. R. Co. v. Mo. 846, 14 Sup. Ct. Rep. 952. 
 
 R. Co., 152 U. S. 301, 38 L. Ed. II. Staten v. Savannah, F. & W. 
 
 4S0, 14 Sup. Ct. Rep. 592; Harward Ry. Co., in Ga. 803, 36 S. E. 938; 
 
 V. St. Clair, etc., Co., 51 111. App. Bloxham v. Florida, C. & P. R. 
 
 130; Wyandotte Co. Comrs. v. Co., 35 Fla. 625, 17 So. 902; Wago- 
 
 Abbott, 52 Kan. 148, 34 Pac. 416; ner v. Evans, 170 U. S. 588, 42 L. 
 
 McCulloch V. Maryland, 17 U. S. Ed. iiS4, 18 Sup. Ct. Rep. 730. 
 
5/0 STREET SURFACE RAILROADS. 
 
 its limits ; neither can it make a contract with such corporation 
 that nonuser of street railway tracks for any specified time 
 shall not operate as a forfeiture of the franchise, since this 
 would involve authority to grant the right to use the streets 
 for private purposes.'^ Since a municipality has no inherent 
 power to tax, it cannot add any burden to a tax authorized 
 by legislature; so the costs provided for in a distress pro- 
 ceeding for the collection of taxes under the New York Code, 
 § 854, cannot include any fees, where the taxes were paid 
 on service of the warrant without distress and sale.'^ 
 
 § 2. Unifannity required by Constitution. — The fourteenth 
 amendment to the Federal Constitution was not intended, 
 in respect to taxation, to compel the State to adopt an iron 
 rule of equality to prevent the classification of property for 
 taxation at different rates; or to prohibit legislation in that 
 regard, special either in the extent to which it operates or the 
 objects sought to be obtained by it. It is enough that there 
 is no discrimination in favor of one as against another of the 
 same class. And due process of law, within the meaning of 
 the amendment, is secured if the laws operate on all alike, 
 and do not subject the individual to an arbitrary exercise of 
 the powers of government."' The constitutional provision 
 for uniform and equal taxation is complied with, in respect 
 to railroad property, when the same basis of assessment is 
 fixed for all such property, and the same rate fixed for all 
 property in any district subject to taxation. '^ A statutory 
 
 12. State, Kansas City v. East 657, 37 L. Ed. 599, 13 Sup. Ct. Rep. 
 Fifth St. Ry. Co., 140 Mo. 539, 41 721; Leeper v. Texas, 139 U. S. 
 S. W. 955, 38 L. R. A. 218. 462, 35 L. Ed. 225. 
 
 13. Manhattan v. Merges, 38 15. Cleveland, C, C. & St. L. 
 App. Div. (N. Y.) 120; affd., 167 R. Co. v. Backus, 133 Ind. 513, 33 
 N. Y. 539, 60 N. E. 11 15. N. E. 421, 18 L. R. A. 729. In 
 
 14. Giozza V. Tiernan, 148 U. S. the case cited it was held that a 
 
UNIFORMITY REQUIRED. 5^1 
 
 provision that different kinds of property shall be assessed 
 by different assessors, as, for example, certain kinds by a 
 State board, does not conflict with the constitutional re- 
 quirement of a uniform and equal rate of taxation, where 
 all property is required to be assessed at its actual cash 
 value. '^ And the constitutional requirement that the legis- 
 lature shall provide for a uniform and equal rate of taxation 
 necessitates a uniform rate only in each separate taxing dis- 
 trict in the State, and is not violated by a statute authoriz- 
 ing county boards of designated counties to levy and collect 
 a tax in excess of that authorized by a general law.'^ A 
 statute making the capital stock of corporations a distinct 
 class of investments for the purpose of taxation is not uncon- 
 stitutional as providing for taxation not uniform. Sub- 
 stantial and not absolute uniformity is all that is required.'* 
 The property of a railroad company so differs from every 
 other species of property that a discrimination in the methods 
 and instrumentalities by which the value of such property 
 is ascertained for purposes of taxation, as, for example, by 
 assessing it annually while lands are required to be assessed 
 every five years, does not indicate a design to oppress rail- 
 road companies and does not constitute want of uniformity 
 and equality in taxation. '^ The business or the franchises 
 
 statute providing that the rolling 17. Midland Elev. Co. v. Stewart, 
 stock of a railroad company shall 5° Kan. 378, 32 Pac. 33; State, Mil- 
 be leased and taxed in the several waukee St. R. Co. v. Anderson, 
 counties, etc., in the proportion 90 Wis. 550, 63 N. W. 746. 
 that the main track in such county 18. Commonwealth v. National 
 bears to the total length of the Oil Co., 157 Pa. St. 563, 27 Atl. 
 main track, does not impose double 374. 33 W. N. C. 137; Common- 
 taxation on the ground that values wealth v. Mill Creek Coal Co., 
 of rolling stock taxable in other iS7 Pa. St. 524, 27 Atl. 375. 
 States are imported into the State 19. Chamberlain v. Walter (C. 
 for the purpose of taxation. C. D. S. C), 60 Fed. 788. And see 
 16. Cleveland, C, C. & St. L. R. Columbia & P. S. R. Co. v. Chil- 
 Co. v. Backus, supra; Sawyer v. berg, 6 Wash. 612, 34 Pac. 163; 
 Dooley, 21 Nev. 390, 32 Pac. 437. State, Poe v. Jones, 51 Ohio St. 
 
5/2 STREET SURFACE RAILROADS. 
 
 of a, corporation may be taxed, and a statute authorizing 
 such tax is not objectionable to a constitutional provision 
 requiring uniform laws taxing all kinds of property/" A con- 
 stitutional and legal inequality in taxation does not refer to 
 individual hardship, nor to those differences in value which 
 grow out of mere differences of opinion, nor to inequality 
 which arises by reason of an essential difiference in thel kind 
 and use of property with a proportionate difficulty of getting 
 at the real value. It refers only to substantial differences 
 relating to large classes of property and to differences in the 
 system or methods by which such properties are assessed for 
 taxation.^' The rule of uniformity in taxation required by 
 the United States Constitution is complied with if the tax 
 operate equally upon the specified subject-mattier wherever 
 and whenever found throughout the United States.^^ This 
 rule of uniformity is not violated, nor is any unlawful dis- 
 crimination made between individual taxpayers and corpora- 
 tions, companies, and associations by the fact that the in- 
 tangible property of such corporations, companies, and asso- 
 ciations is taxed under the State statute by a somewhat 
 different mode from that of individual taxpayers.^^ 
 
 492, 48 Am. & Eng. Corp. Cas. Board of Equalizers (C. C. M. D. 
 
 239, 32 Ohio L. J. 54, Z7 N. E. 945; Tenn.), 85 Fed. 302. 
 
 Atlanta & F. R. Co. v. Wright, 87 22. Nicol v. Ames (C. C. N. D. 
 
 Ga. 487, 13 S. E. 578; Columbus 111.), 89 Fed. 144, 31 Chic. Leg. N. 
 
 S. R. Co. V. Wright, 89 Ga. 574, 43; Taylor v. Louisville & N. R. 
 
 54 Am. & Eng. R. Cas. 255, 15 S. Co. (C. C. App. 6th C), 88 Fed. 
 
 E. 293. 350, 60 U. S. App. 166, 31 C. C. 
 
 20. W. U. T. Co. V. Poe (C. C. A. 537. And see W. U. T. Co. v. 
 S. D. Ohio), 61 Fed. 449; Adams Norman (C. C. D. Ky.), ^^ Fed. 
 Exp. Co. V. Poe, id. 470. And see 13. 
 
 Banta v. Chicago, 172 111. 204, 50 23. Weir v. Norman, 166 U. S. 
 
 N. E. 233, 40 L. R. A. 6n. 171, 41 L. Ed. 960, 17 Sup. Ct. Rep. 
 
 21. Railroad & Tel. Cos. v. 527. 
 
EXEMPTION FROM TAXATION. 573 
 
 § 3. Exemption from taxation.— Taxation is an act of sover- 
 eignty to be performed, so far as it conveniently can be, 
 with justice and equality to all. Common burdens should be 
 sustained by common contributions, regulated by fixed rules, 
 and be apportioned, as far as possible, in the ratio of justice 
 and equity.^* The settled rule established by the highest 
 courts requires that exemption from taxation. So essential to 
 the existence of government, must be expressed in the clear- 
 est and most unambiguous language, and not be left to im- 
 plication or inference.^5 The constitutional power to grant 
 exemption, wholly or partially, from taxation and for fixed 
 or indefinite periods, includes the power to exempt, upon con- 
 ditions or contingencies which are to happen in the future. 
 So there may be in the charter of the railroad company a 
 provision that " no tax shall ever be laid on said road or its 
 fixtures which shall reduce the dividends below eight per 
 cent.," and such provision will amount to an exemption from 
 taxation to the extent and for the purposes stated, and is not 
 invalid for vagueness or uncertainty because of the contin- 
 gency involved.^^ There may be an exemption from ad 
 valorem tax given by a railroad charter; that is, from taxation 
 
 24. Union Pass. Ry. Co. v. v. Davenport, 91 N. Y. 574, 586. 
 Phila., loi U. S. (II Otto.) 528, And see Sindall v. Mayor, etc., of 
 538, 25 L. Ed. 912, citing Cran- Baltimore (Md.), 49 Atl. 645; 
 ford V. Burrell, S3 Pa. St. 219; Parker v. Quinn (Utah), 64 Pac. 
 Cooley Tax. 152; Sutton v. Louis- 961; New Orleans v. Robira, 42 
 ville, 5 Dana, 28, 31. La. Ann. 1098, 8 So. 402, 11 L. R. 
 
 25. People V. Cook, 148 U. S. A. 141; State, Orange & Newark 
 397. 409, 37 L. Ed. 498, 502, 13 Sup. H. R. Co. v. Douglass, 34 N. J. 
 Ct. Rep. 64s, citing Vicksburg S. L. 82; Butler's Appeal, 73 Pa. St. 
 & P. R. Co. V. Dennis, 116 U. S. 448; Wis. Central R. Co. v. Taylor 
 66s, 29 L- Ed. 770; Chicago, B. & Co., 52 Wis. 37; Indianapolis v. 
 K. C. R. Co. V. Missouri, 120 U. S. Sturdevant, 24 Ind. 39i- 
 
 569, 30 L. Ed. 732; Wilmington & 26. Mobile & O. R. Co. v. Tenn., 
 
 W. R. Co. V. Alsbrook, 146 U. S. iS3 U. S. 486, 38 L. Ed. 793, H 
 279, 294, 36 L. Ed. 972, 978; People Sup. Ct. Rep. 968. 
 
574 STREET SURFACE RAILROADS. 
 
 of the capital stock, dividends, roads and fixtures, depots, 
 workshops, and vehicles of a railroad company. But such 
 exemption is not impaired or infringed by a privilege tax on 
 the occupation of the railroad companies so exempt.^'' Mu- 
 nicipal corporations, themselves creatures of statute, and pos- 
 sessing only powers specifically conferred by the legislature, 
 have no inherent authority to grant exemptions. Of course 
 the power to exempt property within the municipality from 
 taxation may be expressly conferred upon the municipality 
 by the legislature.^^ If there be an exemption from taxation 
 of the main line of a railroad company, the transfer to it of 
 the road of another company does not make the road so 
 transferred such an extension of the main line as to bring it 
 within the exemption from taxation which by its charter is 
 confined to the main line alone.^ A transfer of the property 
 of a corporation to which an exemption from taxation is 
 granted in the charter of the company to another company 
 will defeat the exemption.^" Lands held by a railroad for 
 
 27. Knoxville & O. R. Co. v. struction, repair, and operation of 
 Harris, 99 Tenn. 684, 43 S. W. 115. the branches, and does not in- 
 
 28. People ex rel. v. Campbell, dude exemption from taxation, 
 93 N. Y. 196; Chicago v. Baer, 41 which was one of the privileges of 
 111. 306; Grant v. Davenport, 36 the main road. And see S. C, no 
 Iowa, 396; State v. Hannibal & St. N. C. 137, 14 S. E. 652. 
 
 J. R. Co., 75 Mo. 208. 30. So held, upon a lease of all 
 
 29. Wilmington & W. R. Co. v. the property of the company hav- 
 Alsbrook, 146 U. S. 278, 36 L. Ed. ing the exemption to another com- 
 972, 13 Sup. Ct. Rep. 72, S3 Am. & pany in consideration of the com- 
 Eng. R. Cas. 687. In the case cited pletion of the road within a certain 
 it was held that a grant to branch time without provision for rever- 
 roads of a railroad company of all sion. Commonwealth v. Nashville, 
 the powers, rights, and privileges C. & St. L. R. Co., 14 Ky. L. 
 conferred on the company in re- Rep. 442, 54 Am. & Eng. R. Cas. 
 spect to its main road in the con- 294, 20 S. W. 383. And see Balti- 
 struction, use, and preservation of more, G. & A. R. Co. v. Ocean 
 said branch roads, carries with it City, 89 Md. 89, 14 Am. & Eng. R. 
 only the powers, rights, and priv- Cas. (N. S.) 195, 42 Atl. 922; Chesa- 
 ileges of the main road in the con- peake & O. R. Co. v. Miller, 114 
 
EXEMPTION FROM TAXATION. 
 
 575 
 
 terminal purposes, proper and necessary therefor, but not 
 actually used, and intended only to be used thereafter at such 
 indefinite future time as the financial condition of the com- 
 pany might permit the development of such lands for such 
 purposes, are not exempt from taxation under a statute 
 exempting from taxation lands of a railroad company used for 
 railroad purposes.^' Where the State court of last resort has 
 passed upon the question of statutory exemption, its con- 
 struction of the statute will be adopted by the Supreme Court 
 of the United States even in a case where that court may 
 exercise an independent judgment, if there be any reasonable 
 doubt on the question.^^ The right of a railroad to cross, a 
 highway is not exempt from the taxation of franchises au- 
 thorized by the New York statutes and also authorizing the 
 
 U. S. 176, 29 L. Ed. 122. In 
 Colorado, it has been held that the 
 constitutional inhibition against the 
 exemption from taxation of all 
 property, except certain enumer- 
 ated kinds not including railroad 
 property, is not violated by a stat- 
 ute providing that the assessed 
 value for the purpose of taxation of 
 the property of a railroad company 
 within a municipality shall not be 
 dependent upon the actual value of 
 the property physically located 
 therein, but shall bear such relation 
 to the value of its entire property 
 as the length of the main track in 
 the municipality bears to the total 
 length of the line. Ames v. People, 
 Temple, 26 Colo. 83, 56 Pac. 656, 
 citing R. R. Tax Cases, 92 U. S. 
 575, 23 L. Ed. 663. And see N. O. 
 & T. P. R. Co. v. Commonwealth, 
 81 Ky. 492; State, Tillery v. Han- 
 nibal & St. J. R. Co., 97 Mo. 348; 
 Chicago & A. R. Co. v. People, 
 Cooley, 129 111. 571; Burlington & 
 
 M. R. Co. v. Lancaster Co. Com., 
 IS Nebr. 251; State, Kansas City, 
 etc., R. Co. V. Severance, 55 Mo. 
 378; Dubuque v. 111. Cent. R. Co., 
 
 39 Iowa, 56. 
 
 31. Duluth, S. S. & A. R. Co. 
 V. Douglas Co., 103 Wis. 75, 14 Am. 
 & Eng. R. Cas. (N. S.) 178,79 N. W. 
 34, citing Wilmington & R. R. Co. 
 V. Ried, 80 U. S. (13 Wall.) 264, 
 20 L. Ed. 568; State, Camden, etc., 
 Co. V. Mansfield Comrs., 23 N. J. 
 L. 510, 57 Am. Dec. 409; Vt. C. R. 
 Co. V. Burlington, 28 Vt. 193; 
 State V. Baltimore & O. R. Co., 
 48 Md. 49; Ramsey Co. v. Chicago, 
 etc., R. Co., 33 Minn. 537; Western 
 & A. R. Co. V. State, 54 Ga. 428; 
 Osborne v. N. Y. & N. H. R. Co., 
 
 40 Conn. 441; Boston v. Boston & 
 A. R. Co., 170 Mass. 95; Auditor 
 Gen'l v. Flint, etc., R. Co., 114 
 Mich. 682, 72 N. W. 992. 
 
 32. Yazoo, etc., R. Co. v. Adams, 
 181 U. S. 580, 45 L. Ed. loii. 
 
5/6 STREET SURFACE RAILROADS. 
 
 taxation of the tangible property of the corporation situated 
 on a highway, on the theory that the crossing is an ease- 
 ment in the land derived from the owner of the fee rather 
 than a special privilege granted by the public.''^ Where the 
 municipality is authorized to grant exemptions and does 
 exempt a railroad company from all " municipal taxes," such 
 exemption does not include a school tax.^^ The constitu- 
 tional provision in Missouri that no property shall be 
 exempted from taxation, applies to all corporations there- 
 after formed either by original charter or by the consolida- 
 tion of prior corporations under the statute authorizing such 
 consolidation. 35 If the legislature fail to create any specified 
 class of taxable property within which the property neces- 
 sary to the construction of a street railroad may be included, 
 the horses and stables necessary for the operation of the road 
 are not exempt from taxation, since they are embraced in 
 statutes providing for the taxation of real estate and of 
 horses. 3^ Under a statute authorizing the State revenue 
 agent to sue for unpaid taxes after the time required by law 
 for the sale of the property of a railroad company for taxes 
 assessed thereon, if such suit be brought for the purpose of 
 having an adjudication as to the validity of an exemption 
 
 33. N. Y., L. & W. R. Co. v. that the omission of the word 
 
 Roll, 32 Misc. Rep. (N. Y.) 321, " across " did not show a legis- 
 
 66 N. Y. Supp. 748. In the case lative intent not to tax highway 
 
 cited it appeared that the original crossings of domestic corporations. 
 
 draft of the law taxing franchises 34. Winnipeg v. Canadian Pac. 
 
 included franchise rights under, R. Co. (Can.), 12 Man. R. 581. 
 
 above, on, across, or through high- 35. Keokuk & W. R. Co. v. 
 
 ways, but the word " across " was Missouri, 152 U. S. 301, 38 L. Ed. 
 
 omitted from the bill as passed. 450, 14 Sup. Ct. Rep. 592; Same v. 
 
 The other words however had Scotland Co. Ct., 152 U. S. 317, 
 
 been construed by the courts prior 38 L. Ed. 457, 14 Sup. Ct. Rep. 608. 
 
 thereto, in the construction of 36. Del. Co. v. Chester St. R. 
 
 similar statutes, to include the Co. (Pa. C. P.), 10 Pa. Co. Ct. 
 
 crossing of highways. It was held 326 
 
COMMUTATION FOR TAXES. i^j'7 
 
 claimed by the railroad company under the statute, the sheriff 
 of the county cannot, pending the suit, interfere by selHng 
 the property of the company for the taxes.^' 
 
 § 4. Commutation for taxes. — A railroad company may by 
 statute be given immunity from State and county taxation 
 upon the payment in installments of a certain amount in com- 
 mutation into the State treasury for the use of the State;^® 
 and the power to commute for taxes may be expressly con- 
 ferred by statute upon a municipality. If, then, the munic- 
 ipality make a contract with a street railroad corporation to 
 construct and operate a railroad within the municipality, and 
 agree to receive a certain sum annually in full for all munic- 
 ipal taxes, a taxation in addition to the sum so agreed upon 
 cannot be thereafter imposed. So when a city made a con- 
 tract with a tram-railway company, which contract was ac- 
 cepted and acted upon by the company, providing in un- 
 equivocal terms that a percentage of the gross receipts should 
 be received in lieu of all city taxes, except a land tax, it was 
 held that the contract was binding upon the city where the 
 sum agreed upon was more than the regular assessment, and 
 that it could not dollect an additional tax on the personal 
 property of the company." Where the city by ordinance 
 granting a street railway franchise required the company to 
 
 ZT. Yazoo & M. V. R. Co. v. by the legislature which might 
 
 West, 78 Miss. 789, 29 So. 475. provide for specific taxes payable 
 
 38. Neary v. Phila., W. & B. R. to the State in lieu of all other 
 Co., 7 Del. (Houst.) 419; 9 Atl. taxes. And see Daughdrill v. Ala. 
 405. Life Ins. Trust Co., 31 Ala. 91; 
 
 39. Detroit v. Detroit City R. Mechanics' Bank v. Debolt, i Ohio 
 Co., 76 Mich. 421, 43 N. W. 447, St. 591, 59 U. S. (18 How.) 380, 15 
 39 Am. & Eng. R. Cas. 538. In L. Ed. 458; Dodge v. Woolsey, 59 
 the case cited it was also held that U. S. 331, 15 L. Ed. 401 ; City of 
 the statute authorizing the com- New Orleans v. St. Charles St. R. 
 mutation might be itself repealed Co., 28 La. Ann. 497. 
 
 37 
 
5/8 STREET SURFACE RAILROADS. 
 
 macadamize the roadbed between, and three feet beyond, its 
 rails and keep that portion of the street in good order, to con- 
 form to the street grades estabHshed 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 considera- 
 tion thereof agreed to exempt the company's road from taxa- 
 tion for the period of ten years, it was held that a new charter 
 secured by the city thereafter, providing that street railway 
 companies having tracks through the streets of the city, 
 should be required to macadamize the streets as the commis- 
 sioners of the streets might direct, controlled the company's 
 liability to pave, and that the ordinance had riot the binding 
 force of a contract."" The municipality may assess the street 
 railway corporation for State and county taxes, although it 
 had made a contract with it to accept a percentage of its 
 earnings in lieu of all other taxes for city purposes.*' A cor- 
 poration chartered " with all rights and privileges " of an- 
 other company designated, whose charter gave it " all the 
 powers, privileges, and immunities " of a third corporation, 
 does not enjoy the exemption from other taxation of the 
 last corporation under its charter providing that payment of 
 a certain sum shall be in lieu of all other taxes.'*^ 
 
 § 5. Taxation of tangible property. — The property of a street 
 surface railroad company which may be assessed as real es- 
 tate within any political division depends largely upon a con- 
 struction of the statutes of the State in which the property is 
 situate. Thus, in Canada, the rails, poles, and wires of an 
 
 40. City of Atlanta v. Gale City (Mich.), 85 N. W. 96, 7 Det. Leg. 
 St. R. Co., 80 Ga. 276. N. 677. 
 
 41. Detroit Citizens' St. Ry. Co. 42. State, Memphis v. Phoenix 
 V. Common Council of Detroit F. & M. Ins. Co., 91 Tenn. 566, 19 
 
 S. W. 1044. 
 
TAXATION OF TANGIBLE PROPERTY. 579 
 
 electric railway company laid and erected in public highways 
 are subject to assessment as real estate.'*^ In Florida, street 
 railroads are real estate and enjoy the same immunities in 
 the hands of innocent purchasers from back taxes for which 
 no lien exists as other real property.'''* In New Jersey, where 
 railroad properties are not ordinarily assessed for local pur- 
 poses, it has been held that the tracks and franchises of a 
 steam, railroad laid upon certain streets of a city and still 
 used occasionally for railroad purposes, were lawfully as- 
 sessed by the State Board of Assessors as property used for 
 railroad purposes; but corporeal property, constituting the 
 regular equipment of a line of electric cars operated over such 
 tracks is lawfully assessed by the city as property not in use 
 for railroad purposes.''^ In North Dakota, the word " road- 
 way," as used in the Constitution, requiring that " the fran- 
 chise, roadway, roadbed, rails, and rolling stock of all rail- 
 roads operated in this State shall be assessed by the State 
 Board of Equalization," is held to include not only the ground 
 upon which the main line is constructed, but also the ground 
 necessary for the side tracks, turnouts, connecting track, sta- 
 tion-houses, and all other additions reasonably necessary to 
 accomplish the objects of the railroad company's incorpora- 
 tion.t« In Kentucky, railroad property within the corporate 
 limits is subject to taxation for municipal purposes, although 
 
 43. Re Toronto R. Co. (Can.), 25 R- Co. v. Cass Co., 8 N. Dak. 18, 
 Ont. App. 135. 76 N. W. 239, n Am & Eng. R. 
 
 44. Bloxham v. Florida C. & P. Cas. (N. S.) 813, 31 Chic. Leg N- 
 R. Co., 35 Fla. 62s, 17 So. 90a; 26, citing San Francisco & N. P. 
 Bloxham v. Consumers' El. L. & R. Co. v. State Board of Equal- 
 St. R. Co., 36 Fla. S19, 18 So. 444, izers, 60 Cal. 12; San Francisco v. 
 29 L. R. A. 507. Central P. R. Co., 63 id. 467, 49 
 
 45. Camden & A. R. Co. v. At- Am. Rep. 98; Chicago & \f-S-°- 
 lantic City, 58 N. J. L. (29 Vroom) v. People, 98 HI- 350 1 Pfaff y. 
 316, 33 Atl. 198. Terre Haute & I. R. Co., 108 Ind. 
 
 46. Chicago, Milwaukee & St. P. i44- 
 
580 STREET SURFACE RAILROADS. 
 
 the lands along it are practically farming lands, and it re- 
 ceives no benefit from such tax, since the Constitution im- 
 peratively requires the taxation of all property within mu- 
 nicipal boundaries, excepting only that expressly exempted.'"' 
 In New Jersey a railroad company which constructs its road, 
 under an oral agreement, upon land of another, may be taxed 
 upon its property, consisting of embankments, tracks, and 
 works constructed for railroad purposes thereon, although 
 a tax is also assessed against the owner of the fee.** In Cali- 
 fornia an assessment of the right of way of a railroad com- 
 pany, together with its tracks, substructures, and superstruc- 
 tures for a specified sum per mile is invalid under the con- 
 stitutional requirement that " land and the improvements 
 thereon " shall be separately assessed.*' Under a statute pro- 
 viding that all real estate, whether owned by individuals or 
 corporations, shall be liable to taxation at its full value, and 
 that real estate shall include all lands and all buildings or 
 erections thereon or afifixed to the same, etc., a street rail- 
 road company has such an interest in the soil of the high- 
 ways over which it passes as is taxable as real estate.^" Where 
 by statute, in the city of New York, a street railroad com- 
 pany was required to make a tunnel through a street for the 
 purpose of rendering the passage and crossing in the street 
 more safe and convenient, it was held that the tunnels, tracks, 
 substructures, superstructures, stations, viaducts, and ma- 
 
 47. Louisville & N. R. Co. v. 50. City of Newark v. State 
 Barboursville, 20 Ky. L. Rep. iios, ' Board of Taxation (N. J. Sup.), 
 48 S. W. 985. 49 Atl. 522. And see Appeal of 
 
 48. State, Hoboken, etc., Co. v. North Beach, etc., R. Co., 32 Cal. 
 State Board of Assessors, 62 N. J. 499; Chicago City Ry. Co. v. City 
 L. 561, 41 Atl. 728. of Chicago, 90 111. 573; St. R. Co. 
 
 49. California & N. R. Co. v. v. Morrow, 87 Tenn. 406. 
 Mecartney, 104 Cal. 616, 38 Pac. 
 
 448. 
 
TAXATION OF TANGIBLE PROPERTY. 581 
 
 sonry embraced in the improvement were not all taxable as 
 real estate, and that the only taxation to which the railroad 
 could be lawfully subjected would be that to which it would 
 be liable on the assumption that the rails were laid on the 
 Fourth avenue without reference to the tunneling, excava- 
 tion, and masonry work required by the statute, and con- 
 structed in accordance thereto.^' In Minnesota, it is held 
 that the track of the St. Paul City Railway Company is not 
 real estate within the meaning of the city charter, assessable 
 for the expenses of city paving.^^ In States where all rail- 
 road property used for railroad purposes is to be assessed by 
 the State Board of Assessors or Equalizers, and not other- 
 wise, even a machine-shop belonging to a railroad company 
 and used exclusively for necessary repairs incidental. to the 
 conduct of its business is not subject to taxation by the local 
 authorities ;53 so of stables, horses, cars, and vehicles used 
 only in and about the business of conveying passengers and 
 produce according to the company's corporate power, and 
 appurtenant and indispensable thereto.^* An easement in 
 
 51. People ex rel. v. Comrs. of if there be a double assessment of 
 Taxes, 23 Hun (N. Y.), 687. And machinery in a power-house, N. 
 see Met. R. Co. v. Fowler (C. A.), Y. Guaranty & I. Co. v. Tacoma 
 I Q. B. 165. Ry. & M. Co. (C. C. App. 9th C), 
 
 52. State ex rel. St. Paul City 93 Fed. 51, 35 C. C. A. 192. 
 
 Ry. Co. V. Dist. Ct., 31 Minn. 354. S4- Northampton Co. v. Easton, 
 
 And see Toronto St. Ry. Co. v. etc., R. Co., 148 Pa. St. 282, 23 
 
 Fleming, 37 Up. Can. Q. B. 116; Atl. 89S, i Pa. Adv. Rep. 561. In 
 
 App. Tax Ct. V. Union R. Co., 50 the same State however, it has 
 
 Md. 274. been held that horses and stables 
 
 53. Western N. Y. & P. R. Co. of a street railroad company are 
 V. Venango Co., 183 Pa. 618, 38 not exempt from local taxation al- 
 Atl. 1088, 41 W. N. C. 32s, 28 though included in the company's 
 
 ■ Pittsb. L. J. (N. S.) 341; AIleghan> capital stock upon which a State 
 Val. R. Co. V. School Dist. (C. P. tax is paid; but that tracks, super- 
 Pa.), 29 Pittsb. L. J. (N. S.) 314; intendent's office, and buildings in 
 Lehigh Val. R. Co. v. Bradford which the cars are kept are ex- 
 Co. Comrs. (Pa. C. P.), 24 Pa. Co. empt. People's St. R. Co. v. 
 Ct. 537. And see on the question Scranton, 8 Pa. Co. Ct. 633. 
 
582 STREET SURFACE RAILROADS. 
 
 land acquired by a railroad company for the purpose of taking' 
 earth for the construction of embankments is taxable.^s Ordi- 
 narily the words " railroad track " and " rolling stock," as 
 used in a statute relating to the taxation of railroads, are 
 intended to embrace all that is strictly railroad property.^^ 
 A statute providing that personal property for purposes of 
 taxation shall include the property enumerated in the stat- 
 ute and " all other personal property not herein enumerated " 
 and not exempt, enumerating only intangible property, did 
 not preclude taxation of intangible corporate property, such 
 as franchises, under the general method provided by the stat- 
 ute on the failure of the method prescribed in the latter stat- 
 ute by reason of its invalidity. =7 The valuation by the State 
 board of the franchises of a street railroad company is con- 
 clusive as to its value for city assessment in Kentucky.s^ In 
 Texas it is held that the franchises of a railroad, pertinent to 
 the use of its property, are a part of its real estate and not 
 subject to a separate tax, since the franchises required to be 
 returned as personal property have reference to the right to 
 exist and do business as a corporation and tO' condemn prop- 
 erty for which it is required to pay a special tax.ss As has 
 been stated, in New Jersey, property not possessed and used 
 by a railroad company for railroad purposes is subject to 
 local assessment only, and the use of a trolley line is not a 
 railroad use so that it may be lawfully assessed by the State 
 
 55- Chicago & P. R. Co. v. g6, 7 Det. Leg. N. dyT. And see 
 
 Hildebrand, 136 111. 467, 47 Am. Chicago & N. W. R. Co. v. Ell- 
 
 & Eng. R. Cas. 145, 27 N. E. 69. son, 113 Mich. 30, 71 N. W. 324, 
 
 56. Pittsb., etc., R. Co. v. Backus, 4 Det. Leg. N. 178. 
 
 154 U. S. 421, 38 L. Ed. 1031, 14 s8. South Covington & C. St. R. 
 
 Sup. Ct. Rep. 1114; Schmidt v. Co. v. Bellville, 29 Ky. L. Rep. 
 
 Galveston, etc., R. Co. (Tex. Civ. 1148, 49 S. W. 23. 
 
 App.), 24 S. W. 547. 59. State v. Austin & N. W. R. 
 
 57.. Detroit Citizens' Ry. Co. v. Co. (Tex. Civ. App.), 62 S. W. 
 
 Common Council (Mich.), 85 N.W. 1050, 60 id. 886 
 
TAXATION IN SEVERAL MUNICIPALITIES. 583 
 
 board of assessors as property in the possession of a railroad 
 company and used by it for railroad purposes.*" In Ohio 
 taxes and assessments are levied upon the corpus of real prop- 
 erty and not upon the titles by which it may be held, unless 
 otherwise provided by statute.*' 
 
 § 6. Taxation of same railroad property in several municipalities. 
 — Where the road of a corporation runs through different 
 States or municipalities a tax upon the income or franchise 
 of the road is properly apportioned by taking the whole in- 
 come or value of the franchise and the length of the road 
 within each municipality as the basis of taxation.*^ If prop- 
 erty may be assessed as a unit, there is no obligation to value 
 its separate elements. ^^ In Missouri a statute providing for 
 a more uniform assessment and taxation of street railroads 
 in cities, provides that the chief officer of every street rail- 
 road company in every city shall furnish to the State auditor 
 a statement setting out the full length of the hne and the 
 length in each county, municipality, township, and city 
 
 60. Re Jersey City & B. Ry. Co. within the State, unaccompanied 
 (N. J. Sup.), 49 Atl. 437. See as by evidence that the board reached 
 to grain elevators in Iowa, Hertert the valuation by dividing the total 
 V. C, M. & St. Paul Ry. Co., 86 value of the company's property, 
 N. W. 266. or that it failed to take into con- 
 
 61. St. Bernard v. Kemper, 60 sideration the fact of such excess- 
 Ohio St. 244, 54 N. E. 267, 45 L. ive value of portions outside the 
 R. A. 662, 42 Ohio L. J. 41. State, is insufficient to impeach the 
 
 62. Minot V. Phila., W. & B. R. determination of the State board. 
 Co., 8s U. S. (18 Wall.) 206, 21 L. Pittsb., C, C. & St. L. R. Co. v. 
 Ed. 888; Erie R. Co. v. Pennsylva- Backus, 154 U. S. 421, 38 L. Ed. 
 nia, 88 U. S. (21 Wall.) 192, 22 L. 1031, 14 Sup. Ct. Rep. 11 14. And 
 Ed. 595. Testimony that the value see Railroad Co. v. Marion Co. 
 placed by the board was excessive, Comrs., 48 Ohio St. 249. 
 together with testimony that por- 63. Citizens' St. Ry. Co. v. Com- 
 tions of the road outside of the mon Council of Detroit (Mich.), 
 State were of largely greater value 85 N. W. 96. 7 Det. Leg. N. 677. 
 than any similar length of road 
 
584 STREET SURFACE RAILROADS. 
 
 through or in which it is located," which shall be taxed as 
 property of private persons, and assessed, apportioned, cer- 
 tified, levied, and collected in the same manner as other rail- 
 road property. And it is held that a street railroad, a part 
 of whose line is within two cities and a part not within any 
 city, is subject to taxation under this statute.^'* In Iowa a 
 street railroad in a municipal corporation which extends its 
 lines beyond the city limit under statute authority, is not a 
 " railway corporation " within the meaning of another stat- 
 ute providing for the assessment of such corporations in the 
 State by the executive counsel merely because it carries 
 goods and express matter, but is a street railway and subject 
 to taxation by the local assessors.^s 
 
 § 7. Taxation of capital stock. — Under a Pennsylvania stat- 
 ute relating to the taxation of corporations, the question of 
 the actual value in cash of the capital stock of a corporation 
 is a question of fact to be determined by considering the value 
 of its tangible property and assets of every kind, including its 
 
 64. State ex rel. Gottlieb v. Met. places along the line which ex- 
 St. Ry. Co., 161 Mo. 188, 61 S. W. tends through or into several tax- 
 603. And see State ex rel. Spratt ing districts, and also includes a 
 V. Chicago, etc., Ry. Co., 162 Mo. plant outside the city with which 
 391, 63 S. W. 495. In the Gottlieb the city board of assessors have 
 Case it was held that it was proper nothing to do, may be assessed as 
 to levy a school tax at the rate a unit, as the legislature may re- 
 levied on other property in the quire different portions to be as- 
 school district instead of at the sessed in different places and a 
 average rate of several school dis- fair division of its value rtiay be 
 tricts throughout the county as made by a mutual understanding 
 prescribed for levying school taxes between the several assessors; 
 on other railroads. And see De- citing Express Co. v. Ohio State 
 troit Citizens' St. Ry. Co. v. Com- Auditor, 165 U. S. 194, 41 L. Ed. 
 mon Council of Detroit (Mich.), 683, 17 Sup. Ct. Rep. 305. 
 85 N. W. 96, 7 Det. Leg. N. 677, 65. Cedar, Rapids & M. C. R. 
 where it was held that a street rail- Co. v. Cedar Rapids, 106 Iowa, 
 way system, consisting of several 476, 76 N. W. 728. 
 power plants situated at different 
 
TAXATION OF CAPITAL STOCK. 585/ 
 
 bonds, mortgages, and moneys at interest, and its franchises 
 and privileges ; the amount of the incumbrances on its prop- 
 erty and franchises may also be considered, but it is not to be 
 specifically deducted from the valuation so ascertained and 
 determined.*^ In New York, under a statute, it has been 
 held that all damages paid by an elevated railroad company 
 to abutting owners is property that may be assessed, but 
 damages paid on account of past interference with their use 
 of easements of light, air, and access do not form a basis upon 
 which any valid assessment can be made, since no right or 
 property of value is acquired by the railroad company in 
 consequence of such payment. It is also' held that the com- 
 missioners of taxes and assessment are justified in assuming 
 that the capital stock of a corporation remains unimpaired 
 where it appears that it has paid a dividend annually of six 
 per cent. Evidence however might be introduced showing 
 that it had been impaired by the existence of debts, which 
 evidence, if believed, would overcome the presumption that 
 otherv/ise might exist.*^ Where a domestic railroad corpo- 
 ration acquires property of another similar corporation sub- 
 ject to certain liens, the value of such liens must be deducted 
 from the value of the property so acquired, in determining 
 the property subject to taxation under statutes requiring the 
 taxation of the stock and surplus profits of corporations.^* 
 Where the property of a domestic corfjoration, in which is 
 invested all its capital stock, is assessed for taxation, an as- 
 sessment also on its capital stock is invalid as duplicate taxa- 
 
 66. Commonwealth v. Shamokin N. E. 151- And see People v. 
 S. L. R. Co. (Pa. C. P.), 3 Dauph. Feitner, 166 N. Y. 129, 59 N. E. 
 Co. Rep. 168; Com. v. J. & F. Ry. 73i- 
 
 Co., id. 214, 6 Lack. Leg. N. 234. 68. People v. Feitner, 61 App. 
 
 67. People ex rel. Manhattan Ry. Div. (N. Y.) 129. 1o N. Y. Supp. 
 Co. V. Barker, 165 N. Y. 30S, S9 Soo. 
 
586 STREET SURFACE RAILROADS. 
 
 tion.*^ Under the Pennsylvania act requiring corporations to 
 be taxed according to an estimate made by the officers of the 
 corporation as to the actual cash value of its corporate stock 
 which shall not be less than the price or value indicated by 
 the net earnings or by the amount of profits made and de- 
 clared in dividends or carried in the surplus or sinking funds, 
 the fact that the earnings of a corporation are a sum greater 
 than six per cent, on the actual value of its stock as returned 
 by its officers, does not authorize the assessment of taxes 
 on the assumption that the value of the stock was greater 
 than shown by the estimate.^" Under the Louisiana statute, 
 requiring the value of the franchise to be measured chiefly 
 by the earning capacity of the corporation, the assessment for 
 taxes should not be based on dividends alone.'' There is 
 no presumption for purposes of taxation that the indebted- 
 ness of a railroad corporation represents property to the 
 amount of such indebtedness in addition to that represented 
 by its capital stock. '^ For the policy of each State as to the 
 taxation of the capital stock of its corporations, the statutes 
 of the particular State will have to be studied. It is held in 
 
 69. Lewiston W. & P. Co. v. Commonwealth v. Edgerton Coal 
 Asotin Co., 24 Wash. 371, 64 Pac. Co., id. 236; Commonwealth v. 
 544, citing People v. Badlam, 57 Phila. Co., id. 259. 
 
 Cal. 594; Ridpath v. Spokane Co. 71. Crescent City R. Co. v. New 
 
 (Wash.), 63 Pac. 261. Orleans, 44 La. Ann. 1057, 11 So. 
 
 70. Commonwealth v.. Sharon 681; New Orleans & C. R. Co. v. 
 Coal Co. (Pa. C. P.), 3 Dauph. Co. New Orleans, 44 La. Ann. 1053, 11 
 Rep. 243. It is proper to include in So. 687. 
 
 the appraisement the value of the 72. People, Manhattan R. Co. v. 
 
 franchises and privileges enjoyed Barker, 146 N. Y. 304, 66 St. Rep. 
 
 and exercised by the corporation (N. Y.) 658, 40 N. E. 996. And 
 
 and to determine the value of these see People, Second Avenue R. Co. 
 
 by the material result of their ex- v. Barker, 141 N. Y. 196, 36 N. E. 
 
 ercise. Commonwealth v. D., etc., 184, 56 St. Rep. (N. Y.) 834; Mer- 
 
 R. Co., 3 Dauph. Co. Rep. 249. chants' Ins. Co. v. Newark, 54 N. 
 
 And see Commonwealth v. Lake J. L. (25 Vroom) 138, 23 Atl. 305. 
 Shore & M. S. R. Co., id. 172; 
 
FRANCHISE TAXATION. 58/ 
 
 New Mexico that the capital stock of a railroad company is 
 included in a statutory exemption of " all the property of 
 every kind and description."'^ 
 
 § 8. Taxation of franchise. — In the complex civilization of 
 to-day a large portion of the wealth of a community consists 
 in intangible property, and there is nothing in the nature of 
 things or in the hmitations of the Federal Constitution which 
 restrains a State from taxing at its real value such intangible 
 property. It matters not in what this intangible property 
 consists — whether privileges, corporate franchises, 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. To ignore this 
 intangible property, or to hold that it is not subject to taxa- 
 tion at its accepted value is to eliminate from the reach of 
 the taxing power a large portion of the wealth of the country. 
 Now wherever separate articles of intangible property are 
 joined together, not simply by a unity of ownership, but in 
 the unity of use, there is not infrequently developed a prop- 
 erty, intangible though it may be, which in value exceeds the 
 aggregate of the value of the separate pieces of tangible 
 property. Upon what theory of substantial right can it be 
 adjudged that the value of this intangible property must be 
 excluded from the tax-list and the only property placed 
 thereon the separate pieces of tangible property ?''* The fran- 
 chise to do is an independent franchise of a corporation, or 
 rather a combination of franchises, embracing all things 
 which the corporation is given power to do, and this power 
 
 "JZ- Santa Fe R. Co. v. New 74. Per Brewer, J., in Adams 
 
 Mexico & S. P. R. Co., 3 N. M. Express Co. v. Ohio State Auditor, 
 116, 2 Pac. 376. 166 U. S. 18s, 219, 41 L. Ed. 965, 
 
 977, 17 Sup. Ct. Rep. 604. 
 
588 
 
 STREET SURFACE RAILROADS. 
 
 to do is as much a thing of value and a part of the intangible 
 property of the corporation as the franchise to be/^ The 
 word " franchise," as employed in the Kentucky statute, is 
 not used in a technical sense. The legislative intention is 
 plain that the entire property, tangible and intangible, of all 
 foreign and domestic corporations, and of foreign and do- 
 mestic corporations possessing no franchises should be valued 
 as an entirety, the value of the tangible property to. be de- 
 ducted and the value of the intangible property thus ascer- 
 tained is to be taxed under the statutory provisions.'* The 
 sections of the New York Tax Law, providing for a fran- 
 chise tax on corporations, and also for the additional fran- 
 chise tax on elevated railroads or surface railroads not oper- 
 ated by steam will be found in the note hereto.^'' Section 182 
 
 75. Id. 
 
 76. The statute provided, after 
 enumerating companies or corpora- 
 tions, that " every other corpora- 
 tion, company, or association hav- 
 ing or exercising any special or 
 exclusive privilege or franchise not 
 allowed by law to natural persons, 
 or performing any public service, 
 shall, in addition to the other tax 
 imposed on it by law, annually pay 
 a tax on its franchise to the State 
 and a local tax thereon to the 
 county, incorporated city, town, and 
 taxing district where its franchise 
 may be exercised." Adams Ex- 
 press Co. v. Kentucky, 166 U. S. 
 171, 180, 41 L. Ed. 960, 963. 
 
 77. Sections 182, 185, and 190 of 
 the Tax Law, as contained in 2 
 Heydecker's Gen. Laws (2d ed.), 
 pp. 1919-1926, are as follows: 
 
 § 182. Franchise tax on corpo- 
 Tations — Every corporation, joint- 
 stock company or association in- 
 corporated, organized or formed 
 
 under, by or pursuant to law in 
 this state, shall pay to the state 
 treasurer annually an annual tax to 
 be computed upon the basis of the 
 amount of its capital stock em- 
 ployed within this state, and upon 
 each dollar of such amount, at the 
 ate of one-:quarter of a mill for 
 each one per centum of dividends 
 made and declared upon its capital 
 stock during each year, ending with 
 the thirty-first day of October, if 
 the dividends amount to six or 
 more than six per centum upon the 
 par value of such capital stock. If 
 such dividend or dividends amount 
 to less than six per centum on the 
 par value of the capital stock, the 
 tax shall be at the rate of one and 
 one-half mills upon such portion of 
 the capital stock at par as the 
 amount of capital employed within 
 this state bears to the entire capital 
 of the corporation. If no di,vidend 
 is made or declared, the tax shall 
 be at the rate of one and one-half 
 
FRANCHISE TAXATION. 
 
 589 
 
 has recently been before the Court of Appeals for construc- 
 tion, and it was held that that section and section 190 esta:b- 
 lish a rule to compute the amount of the capital stock on 
 which an assessment is to be made, but not for its valuation. 
 
 mills upon each dollar of the ap- 
 praised capital employed within 
 this state. If such corporation, 
 joint-stock company or association 
 shall have more than one kind of 
 capital stock, and upon one of such 
 kinds of stock a dividend or divi- 
 dends amounting to six or more 
 than six per centum upon the par 
 value thereof, has been made or 
 declared, and upon the other no 
 dividend has been made or de- 
 clared, or the dividend or dividends 
 made or declared thereon amount 
 to less than six per centum upon 
 the par value thereof, then the tax 
 shall be at the rate of one-quarter 
 of a mill for each one per centum 
 of dividends made or declared upon 
 the capital stock upon the par value 
 of which the dividend or dividends 
 made or declared amount to six or 
 more than six per centum, and in 
 addition thereto, a tax shall be 
 charged at the rate of one and one- 
 half mills upon every dollar of the 
 valuation made in accordance with 
 the provisions of this act of the 
 capital stock upon which no divi- 
 dend was made or declared, or 
 upon the par value of which the 
 dividend or dividends made or de- 
 clared did not amount to six per 
 centum; provided, however, that a 
 street surface railroad corporation 
 or a steam railroad corporation, or 
 an elevated railroad corporation 
 owning in a city a street surface 
 railroad or an elevated railroad not 
 operated by steam, in cases where 
 the street surface roads or elevated 
 
 roads of said owning corporations 
 are operated by another street sur- 
 face railroad corporation under a 
 lease or otherwise, in so far as the 
 dividends made and declared upon 
 the capital stock of the said own- 
 ing corporations shall be paid from 
 the gross earnings of the said op- 
 erating corporation in the form of 
 rent or otherwise, shall only be re- 
 quired under this section to pay a 
 tax of three per centum upon the 
 dividends declared and paid from 
 the moneys received in the form of 
 rent or otherwise from the oper- 
 ating company in excess of four 
 per centum upon the amount of its 
 capital stock, provided, however, 
 that nothing in this section shall 
 relieve the said operating company 
 of any of the liabilities imposed by 
 section one hundred and eighty-five 
 of this chapter. Every corporation, 
 joint-stock company or association 
 organized, incorporated or formed 
 under the laws of any other state 
 or country shall pay a like tax for 
 the privilege of exercising its cor- 
 porate franchises or carrying on 
 its business in such corporate or 
 organized capacity in this state, to 
 be computed upon the basis of the 
 capital employed by it within this 
 state. (As amended by chap. SS8 
 of 1901.) 
 
 § 185. Pranchlse tax on ele- 
 vated railroads or surface rail- 
 roads not operated by steam — 
 Every corporation, joint-stock 
 company or association operating 
 any elevated railroad or surface 
 
590 
 
 STREET SURFACE RAILROADS. 
 
 and that such valuation is to be based on the provisions of 
 section 190, and therefore an assessment of the par value is 
 erroneous. 7* Very recently ex- Judge Earl, of the Court of 
 Appeals, sitting as a referee, has determined that the New- 
 York State Franchise Tax Law is valid; that it does not vio- 
 late the home rule section of the State Constitution, nor is it 
 in conflict with the Federal Constitution in impairing con- 
 tracts, nor is it incompatible with other tax statutes in that 
 the value of the franchise for use of a street cannot be sepa- 
 rated from other property values, and that where the corpo- 
 
 railroad not operated by steam 
 shall pay to the state for the privi- 
 lege of exercising its corporate 
 franchise or carrying on its busi- 
 ness in such corporate or organized 
 capacity within this state, an annual 
 tax which shall be one per centum 
 upon its gross earnings from all 
 sources within this state, and three 
 per centum upon the amount 
 of dividends declared or paid in 
 excess of four per centum upon the 
 actual amount of paid-up capital 
 employed by such corporation, 
 joint-stock company or association. 
 Any corporation, joint-stock com- 
 pany or association taxed under 
 this section which has paid a tax 
 to the state for the year ending 
 November first, eighteen hundred 
 ■and ninety-five, under section three 
 of chapter five hundred and forty- 
 two of the laws of eighteen hun- 
 dred and eighty, as amended by 
 chapter five hundred and twenty- 
 two of the laws of eighteen hun- 
 dred and ninety, shall be credited 
 by the comptroller with one-third 
 ■of the amount so paid in comput- 
 ing the taxes to be paid for the 
 year ending June thirtieth, eighteen 
 hundred and ninety-six. 
 
 § 190. Value of stock to be ap- 
 praised — In case no dividend has 
 been declared, by a corporation, 
 association or joint-stock company 
 liable to pay a tax under section 
 one hundred and eighty-two of this 
 chapter, the treasurer or secretary 
 of the company, shall, under oath, 
 between the first. and fifteenth day 
 of November in each year, estimate 
 and appraise the capital stock of 
 such company upon which no divi- 
 dend has been declared, or upon 
 which the dividend amounted to 
 less than six per centum at its 
 actual value in cash, not less, how- 
 ever, than the average price which 
 said stock sold for during said year, 
 and shall forward the same to the 
 comptroller with the report pro- 
 vided for in the last section. If the 
 comptroller is not satisfied with the 
 valuation so made and returned he 
 is authorized and empowered to 
 make a valuation thereof, and set- 
 tle an account upon the valuation 
 so made by him, and the taxes, 
 penalties and interest to be paid 
 the state. 
 
 78. People V. Roberts, 168 N. Y. 
 14, 60 N. E. 1043. 
 
FRANCHISE TAXATION. 
 
 591 
 
 ration owns one or more franchises they may be assessed in 
 bulk; that a precise rule or method of assessing for each 
 franchise was impossible, and the assessors were allowed dis- 
 cretion; and that the State board need not divulge their 
 method of arriving at a value; neither need the law dis- 
 tinctly state the tax; that the assessment at full valuation by 
 the State board, while in some counties other real estate is 
 not assessed at full value, can be remedied in the courts/' 
 The right of a domestic railroad corporation to use a high- 
 
 79. In his opinion the learned 
 referee said: " This franchise tax 
 takes away nothing granted, and it 
 impairs no contract. The imposi- 
 tion of the tax is not an effort to 
 exact more compensation for the 
 franchises, but to compel the own- 
 ers thereof to pay, in common with 
 other owners of property, their 
 share of the public burdens. If 
 the argument of the relators is to 
 be carried to its logical results, 
 then the State could never tax any 
 franchise of any kind granted by 
 it without impairing its contracts, 
 and the millions which have been 
 taken from corporations under 
 franchise tax laws in all parts of 
 this country during the past 
 twenty years have been taken in 
 violation of the Federal Constitu- 
 tion, and have been illegally ex- 
 acted. It is said that these fran- 
 chises could not be taxed because 
 they were not taxable at the time 
 they were granted. They were not 
 by any law or contract exempted 
 from taxation. They were prop- 
 erty of immense value under the 
 protection of the government, and 
 there was no reason in their nature 
 for exempting them from taxation. 
 There is no contract, express or 
 
 implied, that they should never be 
 compelled to bear their share of 
 public burdens like other prop- 
 erty." 
 
 As to the claim that it was im- 
 possible to value the franchise, he 
 said: "It is proper to look upon 
 the franchise as real estate, and is 
 not impossible to find a tangible 
 value. These assessors were not 
 bound to view these franchises as 
 abstractions apart from any use to 
 which they could be put, but they 
 had the right to consider, and as 
 faithful officers were bound to con- 
 sider, the uses for which they were 
 intended in the streets, and to 
 which they had been actually ap-. 
 plied. Suppose what constitutes 
 the special franchise of any one of 
 these corporations should be put 
 in the market for sale? Can it be 
 doubted that it would sell for a 
 substantial price, a sum which 
 business men could determine with 
 sufficient accuracy for business pur- 
 poses? Hence, I think it is clear 
 these special franchises could be 
 assessed for the purposes of taxa- 
 tion. The assessment is undoubt- 
 edly attended with great difficulties, 
 but it can be made with such an 
 approximation to accuracy as will 
 
592 STREET SURFACE RAILROADS. 
 
 way crossing is a special franchise subject to taxation.®" In- 
 debtedness of a corporation and its operating expenses 
 should not be deducted in Kentucky in valuing its franchises 
 for taxation purposes.®' The franchise and property of one 
 corporation cannot be assessed in Wisconsin to another cor- 
 poration to which they have been transferred, as such fran- 
 chises are inalienable and cannot be transferred so as to dis- 
 able the corporation from performing its duties.® Under a 
 statute providing that all real and personal estate, whether 
 owned by individuals or corporations, shall be liable to taxa- 
 tion, the mere franchises of the corporation are not taxable.®' 
 The earning capacity of thfe franchises of a New Orleans city 
 railroad company is, under the Louisiana statutes, the true 
 statutory basis of their assessment for taxation.®* In that 
 State the method of assessing other corporations is not suffi- 
 cient cause for complaint by a street railroad company 
 against the assessment of the value of its franchises based on 
 the proportionate value of the franchise to the total value on 
 which the company pays dividends. ®5 The franchise to build 
 
 satisfy all the requirements of the v. Commonwealth, 20 Ky. L. Rep. 
 
 law and constitution." And see 1509, 49 S. W. 486. And see Lowell 
 
 People V. Morgan, 162 N. Y. 654, v. Middlesex Co., 152 Mass. 375, 9 
 
 57 N. E. 1 121; People v. Morgan, L. R. A. 356; State, Central R. Co. 
 
 55 App. Div. (N. Y.) 265, 62 N. Y. v. State Board of Assessors, 48 N. 
 
 Supp. 823; People V. Morgan, 57 J. L. 7. 
 
 App. Div. (N. Y.) 335, 68 N. Y. 82. State, Milwaukee St. Ry. Co. 
 
 Supp. 21; Henderson Bridge Co. v. Anderson, 90 Wis. 550, 63 N. W. 
 
 V. Kentucky, 106 U. S. 150, 41 L. 746. 
 
 Ed. 953. 83. State, Passaic Water Co. v. 
 
 80. N. Y., L. & W. Ry. Co. v. Patterson, 56 N. J. L. (27 Vroom) 
 Roll, 32 Misc. Rep. (N. Y.) 321, 471, 29 Atl. 185. 
 
 66 N. Y. Supp. 748; W. U. T. Co. 84. New Orleans City & L. R. 
 
 V. Taggart, 141 Ind. 281, 2 Am. & Co. v. New Orleans, 44 La. Ann. 
 
 Eng. Corp. Cas. (N. S.)' 187, 40 N. 1055, 54 Am. & Eng. R. Cas. 297, 
 
 E. 1051. II So. 820. 
 
 81. Paducah St. R. Co. v. Mc- 85. St. Charles St. R. Co. v. 
 Craken Co., 20 Ky. L. Rep. 1294, Board of Assessors, 51 La. Ann. 
 49 S. W. 178, 9 Am. & Eng. Corp. 458, 25 So. 90. 
 
 Cas. (N. S.) 70s; Louisville R. Co. 
 
TAXATION OF EARNINGS. 593 
 
 and run a street railway is as much a subject of taxation as- 
 any other property; and where there is no express contract 
 against taxation in the charter of the corporation it takes its 
 charter subject to the same right of taxation in the State 
 which applies to all other privileges and property.*^ A short 
 line of incline cable railroad, located wholly within one 
 county, operated by means of a cable and stationary steam 
 power, and chartered under statutes providing for the incor- 
 poration of cable or cog railroads for ascending mountain 
 heights with a maximum grade of not less than i,ooo feet 
 per mile, does not come within the provision of statutes au- 
 thorizing the assessment of railroad property by the State 
 railroad commissioners.*^' And the fact that a company 
 transferred its franchise as to its line of road and retained a 
 portion of the land grant, does not operate as a sale of such 
 lands so retained and subject them, to specific taxation under 
 the Minnesota statute.®* 
 
 § 9. Taxation of earnings. — Legislative and constitutional 
 provisions that taxation of property shall be equal and uni- 
 form and in proportion to its value are not violated by exact- 
 ing from railroad corporations in the State a contribution, ac- 
 cording to their gross income, in proportion to the number 
 of miles of railroad in the State, to meet the expenses of a 
 railroad commission;*' and generally it may be said that a 
 tax of a percentage of gross earnings imposed upon railroad 
 
 86. New Orleans City & Lake 88. Jackson Co. v. Sioux City &. 
 R. Co. V. City of New Orleans, St. P. R. Co. (Minn.), 84 N. W. 
 143 U. S. 192, 36 L. Ed. 121, 12 794- 
 
 Sup. Ct. Rep. 406, affg. 40 La. Ann. 89. Charlotte, C. & A. R. Co. v. 
 
 587. Gibbes, 142 U. S. 386, 35 L. Ed. 
 
 87. Lookout Inc. & L. L. Ry. 1051, 48 Am. & Eng. R. Cas. 595, 
 Co. V. King (Tenn. Ch. App.), 59 12 Sup. Ct. Rep. 255. 
 
 S. W. 80s. 
 
 38 
 
594 STREET SURFACE RAILROADS. 
 
 companies in lieu of all other taxation is valid.'" A railroad 
 company whose road is but three miles long and is operated 
 by a locomotive over two miles and by cable for a steep as- 
 cent of a mile, but which is organized to transport passengers 
 and freight, is within the Minnesota statute providing that 
 any railroad company owning or operating any line of rail- 
 road in the State shall pay a percentage of its gross earn- 
 ings, as specified, in lieu of all other tax.'' Taxes assessed 
 upon the gross earnings are taxes upon the property of the 
 railroad within the rule which requires the lessor, and not 
 the lessee, to pay such taxes, especially where the rent to be 
 paid is a certain proportion of the gross earnings, and the 
 tax law directs the lessee to pay the tax and deduct it from 
 rent due the lessor.'^ The substitution erf an assessment on 
 gross earnings of a railroad company in lieu of all other 
 taxes on the road and lands granted to the company does not 
 exempt the lands from taxation. It substitutes one method 
 of taxation for another on the terms and conditions specified 
 in the statute for such substitution.'^ But a street railroad 
 company has been held not to be one of the railroads contem- 
 plated by the Minnesota statute providing for the taxation of 
 railroad companies by a percentage on their gross earnings.'* 
 
 go. Northern Pac. R. Co. v. Co. v. Pennsylvania, 122 U. S. 326, 
 
 Barnes, 2 N. Dak. 310, 53 Am. & 30 L. Ed. 1200. 
 
 Eng. R. Cas. 616, 51 N. W. 386. 93. Traverse Co. v. St. Paul, M. 
 
 And see Atlanta & F. R. Co. v. & N. R. Co., 73 Minn. 417, 76 N. 
 
 Wright, 87 Ga. 487, 13 S. E. 578. W. 217; North P. R. Co. v. Clark, 
 
 91. State, Duluth Belt L. R. Co. 153 U. S. 252, 38 L. Ed. 706. 
 
 V. Eleventh Jud. Dist. Ct., 54 Minn. 94. State v. Duluth Gas & W. 
 
 34. 55 N. W. 816. Co., 76 Minn. 96, '78 N. W. 1032. 
 
 92. Vermont & C. R. Co. v. As to the New Hampshire statute 
 Vermont C. R. Co. (Vt.), 10 L. R. see State v. Manchester & L. 
 A. 562, 3 Inters. Com. Rep. 488, R., 70 N. H. 421, 48 Atl. 1103. As 
 46 Am. & Eng. R. Cas. 646, 9 Ry. to Maryland statute, U. S. El. P. 
 & Corp. L. J. 302, 21 Atl. 262, 731. & L. Co. v. State, 79 Md. 63, 28 
 And see Phila. & S. M. S. S. F. Atl. 768. 
 
LICENSE FEES. 595 
 
 Although a license fee may be required by the charter of a 
 railroad company, if constitutional or statutory provisions 
 reserve the right to alter, suspend, or repeal corporate char- 
 ters, a subsequent statute may require the company to pay\ a 
 percentage of its gross earnings in lieu of the license fee.'^ 
 In Maryland it has been held that a local passenger railway, 
 built along a turnpike road outside the limits of Baltimore, 
 under a contract purchasing the privilege from the turnpike 
 company and for which no street franchise or acquisition of 
 any kind whatever had been conferred by the city, did not, 
 upon the extension of the limits of the city to include a por- 
 tion of the road, become " a street railway " within the in- 
 tendment of the statutes imposing a park tax of nine per 
 cent, upon gross receipts from all street railiway lines vnthin 
 city limits.^* 
 
 § 10. license fees. — In the absence of constitutional or stat- 
 utory restrictions, a municipality may impose a license tax 
 upon street cars, and a contract giving to a street railway 
 company the privilege of operating its road in a street for a 
 term of years without any provision that it shall be exempt 
 from license taxes does not preclude the subsequent imposi- 
 tion of a municipal license tax within the contract period, 
 even if it be imposed for revenue purposes and not simply 
 as a police regulation.^^ A license tax of $io each per annum 
 upon electric cars which will carry thirty to forty passengers 
 at a time is not unreasonable, where the cars run upon a 
 street passing by extensive steel mills and have an exclusive 
 right through the only available highway connecting two 
 
 95. Mayor v. Twenty-third St. 97- Springfield v. Smith, 13S Mo. 
 R. Co., 113 N. y. 311. 64s. 40 S. W. 757- And see ante, 
 
 96. Baltimore v. Baltimore, etc., chap. IV, § 6. 
 R. Co., 84 Md. I, 35 Atl. 17, 33 L- 
 
 R. A. S03. 
 
596 STREET SURFACE RAILROADS. 
 
 Doroughs with a city. The tax may be imposed under a. 
 statute empowering the borough to impose it on hacks, car- 
 riages, omnibuses, and other vehicles used in carrying per- 
 sons or property for pay.'* A street railroad company how- 
 ever is not liable for the license fees for operating its road 
 from the expiration of its grant to the filing of a bill in an 
 action to enjoin it from further operating the road, as it is a 
 mere trespasser from that time.'' Where the charter of the 
 company provides that it shall pay for each car, over and 
 above all other taxes, a certain sum, the company is liable 
 for a tax imposed by a city ordinance upon each working 
 horse in the city, on each and every one of its horses.' A 
 State can always levy an excise tax upon a railroad corpora- 
 tion for the privilege of exercising its franchises within the 
 State, and it may delegate its power so to do to a munic- 
 ipality so that the municipality may impose a license fee 
 upon the privilege of exercising the corporate franchises 
 within its limits.^ Where the right to impose the license fee 
 exists, the fees may be increased unless a contract prevent- 
 ing such increase exists between the municipality and the 
 company. If, however, the increase is in derogation of the 
 rights of the company, the ordinance imposing it is void.^ A 
 clause in the charter of a city railroad company that the com- 
 pany shall pay a license fee for each car such as is paid by 
 other passenger railroad companies in the city, namely, $30^ 
 
 98. North Braddock v. Second 142 U. S. 217, 35 L. Ed. 994, 12. 
 Ave. Tract. Co. (Pa. C. P.), 28 Sup. Ct. Rep. 121, 48 Am. & Eng. 
 Pittsb. L. J. (N. S.) 27. R. Cas. 602, 11 Ry. & Corp. L. 
 
 99. Cincinnati Inc. Plane R. Co. J. 52. 
 
 V. Cincinnati, 52 Ohio St. 609, 44 3. Mayor v. Third Ave. R. Co.,. 
 
 N. E. 327. 33 N. Y. 42; State ex rel. Cream. 
 
 1. Montreal St. R. Co. v. Mon- City Ry. Co. v. Hilbert, 72 Wis. 
 treal, 23 Can. S. C. 259. 184, 39 N. W. 326; Johnson v. 
 
 2. Maine v. Grand Trunk R. Co., Philadelphia, 60 Pa. St. 445. 
 
EFFECT OF CONSOLIDATION. 597 
 
 i 
 
 IS not a contract that the license charged for such cars should 
 never exceed $30; and a subsequent act of sovereignty may 
 increase the license fee to $50, where power to alter, revoke, 
 or annul any charter of incorporation was vested in the legis- 
 lature by the Constitution of the State before the company 
 complaining of the increase was incorporated.'* 
 
 § 11. Effect of consolidation. — As has been substantially 
 stated, courts are astute to seize upon evidence tending to 
 show either that exemptions from taxation were not origi- 
 nally intended or that they had become inoperative by 
 changes in the original constitution of the companies. So 
 a consolidation of corporations unto one or more, of which 
 an exemption was allowed will be regarded as a new grant 
 of corporate franchises within the meaning of constitutional 
 provisions theretofore existing requiring the property of cor- 
 porations to whom franchises are granted to be taxed like 
 that of individuals.^ A constitutional provision that no 
 
 4. Union Pass. Ry. Co. v. Phila- erties, immunities, and privileges, 
 delphia, loi U. S. 528, 25 L. Ed. and substitute for fheir shares, 
 gi2. shares in the new couipany, al- 
 
 5. Yazoo & Miss. Val. R. Co. v. though there is a clause in the ar- 
 Adams, 180 U. S. 1,45 L.Ed. 395, 28 tides providing that the consoli- 
 Sup. Ct. Rep. 240, affg. 77 Miss. 194, dation shall be effected without 
 28 So. 956. The Mississippi Con- disturbing the corporate existence 
 stitution of 1890, section 180, made of one of the old companies " or 
 all grants of corporate franchises the formation of any new distinct 
 subject to constitutional provisions corporation, unless such result shall 
 requiring the property of corpora- be necessary to give legal effect to 
 tions to be taxed like that of in- this agreement," was practically a 
 dividuals. And in the case cited new grant of corporate franchises 
 it was held that a subsequent con- to which the exemptions did not 
 solidation between railroad com- apply, since the effect of the con- 
 panies which had exemptions from solidation was to surrender the 
 taxation prior to the adoption of entire administration of the func- 
 the new Constitution, but which by tions of the constituent companies 
 articles of consolidation agreed to to a new corporation with new of- 
 merge and consolidate their prop- iicers. And see Same v. Same, 180 
 
598 STREET SURFACE RAILROADS. 
 
 " special privileges or immunities shall ever be granted that 
 may not be altered, revoked, or repealed by the general as- 
 sembly " enters into statutes existing under which consoli- 
 dations are subsequently made and renders the corporations 
 thus created and the franchises thus conferred subject to re- 
 peal and alteration jtist as if they had been expressly de- 
 clared to be so by the statute.* A franchise tax imposed by 
 the charter of a railroad company upon each share of its 
 capital stock extends to all the shares of a company formed 
 by the consolidation under special statutes of the State, and 
 an adjoining State, of such railroad with a railroad in the 
 latter State, providing that the stockholders of the latter 
 company are constituted stockholders in the former, and 
 not merely to the shares owned by residents of the former 
 State, or to that proportion of all the shares which will equi- 
 tably represent the portion of the line lying within the former 
 State.7 Where street improvements were made and the cost 
 of paving that portion of the street occupied by street rail- 
 way companies was levied as special assessments against the 
 property of the several companies as separate properties, and 
 these different street railways were afterward consolidated 
 and merged into one property and operated as one system, 
 the old companies substantially losing their individuality 
 and identity and the new company assuming the burdens 
 and obligations of the constituent companies, it was held 
 that, as between the consolidated company and the munic- 
 ipal authorities levying such special assessment, the liens aris- 
 ing by reason of the several assessments against the different 
 
 U. S. 26, 45 L. Ed. 408, 21 Sup. Parker v. Railroad Co., 109 Mass. 
 
 Ct. Rep. 282, affg. 77 Miss. 780, 28 506. 
 
 So. 959. 7. State, Bain v. Seaboard & R. 
 
 6. Shields V. Ohio, 95 U. S. (5 R. Co. (C. C. E. D. N. C), 52 
 
 Otto) 319, 24 L. Ed. 357. And see Fed. 450. 
 
SPECIAL ASSESSMENTS. 
 
 599 
 
 ■constituent companies and properties attached to the new 
 property owned and operated by the substituted company 
 as one property in its entirety, and might be enforced by the 
 sale of the property without dismemberment and separating 
 it into fractional properties as it existed before the consoli- 
 dation.* 
 
 § 12. Special assessments.— The statutory scheme for munic- 
 ipal corporations generally has been to assess the burdens 
 of street improvements in some form upon the property 
 benefited; but the fact that the rails, ties, and tracks of a 
 street surface railroad are property and subject to taxation 
 
 8. Lincoln St. Ry. Co. v. City of 
 Lincoln, 84 N. W. 802. In the case 
 cited it was also held that where a 
 mortgage was placed on a street 
 railway property, which property 
 was afterward consolidated with 
 that of another company against 
 which certain liens for taxes levied 
 as special assessments existed, the 
 lien of the mortgage on the prop- 
 erty covered thereby could not, 
 without the consent of the mort- 
 gagee, be impaired by the agree- 
 ments and acts of consolidation, 
 and the tax lien on the property 
 consolidated and merged into the 
 new company and with the prop- 
 erty mortgaged could not be made 
 prior to the mortgage lien on all 
 the property after consolidation; 
 that the tax and mortgage liens 
 attached to the specific properties 
 embraced in the levy and the mort- 
 gage, respectively, and the respec- 
 tive liens and their priorities could 
 be preserved unimpaired only by 
 separating the dififerent properties 
 into their constituent parts as be- 
 fore consolidation and awarding to 
 each a lien according to priority. 
 
 In a recent case in New Jersey 
 it appeared that four corporations 
 operating street railroads made a 
 consolidation agreement forming a 
 new corporation; the corporation 
 thus formed consolidated with 
 other companies, forming a new 
 consolidated corporation. It was 
 held that the power of the last 
 corporation to extend its tracks 
 would not be affected even if one 
 of the four original members of the 
 first consolidation was without 
 power to enter into the consolida- 
 tion agreement for failure to ob- 
 tain corporate existence, since the 
 consolidation agreement of the 
 other members was sufficient to 
 form a new corporation, and even 
 a de facto corporation was able to 
 enter into the consolidation agree- 
 ment, and hence the second con- 
 soHdated company was valid and 
 obtained the rights of each of the 
 constituent members, including the 
 power to extend tracks. In re 
 Trenton St. Ry. Co. (N. J. Ch.), 
 47 Atl. 819. 
 
600 STREET SURFACE RAILROADS. 
 
 generally affords no sufficient reason for taxing them for 
 street improvements when the law has not made them 
 specially assessable for such purposes. It is the general cus- 
 tom of municipal corporations, in granting privileges to 
 street surface railroad companies to occupy streets, to im- 
 pose terms as a condition to the exercise of such right, and 
 such conditions are lawful and may be enforced in some form 
 for the benefit of the municipal corporations making the 
 grants. These conditions frequently refer to the repairs upon 
 the streets or contributions to the public treasury in lieu 
 thereof, and when imposed usually define the right of the 
 municipal corporation to levy taxes, and the limits of the 
 liability of the railroad corporation tO' pay them. The pro- 
 vision however in a municipal charter " that all property 
 in said city benefited by any improvement" * * * 
 " shall be liable to assessment for such improvement," was 
 not intended to introduce a new class of subjects for tax- 
 ation, or to extend the powers given by the preceding pro- 
 visions of the charter.' There can be no obligation on 
 the railroad company to contribute to the cost of paving 
 a portion of the roadway outside of its tracks where the im- 
 provement does not include the part of the street which the 
 company is required to pave or keep in repair, unless that 
 obligation is rightfully imposed by some agreement it has 
 made with the municipality or as a condition imposed by 
 statute.'" In Nebraska, the jurisdiction of the municipal 
 council to establish paving districts and to engage in the 
 work of improving and paving the streets therein does not 
 rest upon a petition asking for such improvement, but on 
 
 9. People ex rel. Davidson v. 10. Bowditch v. New Haven, 40 
 
 Gilon, 126 N. Y. 147, 151; Smith Conn. 503. 
 V. City of Buffalo, 159 id. 427. 
 
SPECIAL ASSESSMENTS. 6oi 
 
 the statutory ground that when streets are improved by the 
 city authority it is incumbent upon street railways occupying 
 parts of the streets to pave in conformity therewith the por- 
 tion they occupy, and upon failure or refusal so to do, the 
 council is authorized to perform the work and by special 
 assessment make the cost thereof a charge on the property 
 of such street railway company." Substantially the same 
 provisions as to street improvements are contained in the 
 •charters of municipal corporations generally throughout the 
 United States. Where the charter authorizes the street 
 railroad company to operate its roads in such streets as shall 
 be determined by the town council, with the company's as- 
 sent, and on compliance with such conditions and under such 
 regulations as the council might impose, an ordinance per- 
 mitting the company to use certain streets and prescribing 
 the use of a certain kind of rail is not a contract precluding 
 
 II. Lincoln St. Ry. Co. v. City company should be subject to all 
 of Lincoln, 84 N. W. 802. In the such reasonable regulations in the 
 case cited it was stated that under construction and use of the railway 
 the Constitution and the statute as might be imposed by ordinance, 
 requiring the consent of a majority It was held that, assuming that 
 of the electors of a city before a such provisions became a part of 
 street railway company is author the charter of the corporation hav- 
 ized to construct and operate a ing the elements of a contract with 
 street railway in such city, an ordi- respect thereto, an exemption from 
 nance was adopted submitting the special assessment was not created, 
 proposition of giving their consent and the legislature might impose 
 to the construction and operation a liability on the street railway to 
 of the proposed street railway to pave a part of the street occupied 
 the electors, and providing that by its tracks in conformity with the 
 the track should be so constructed improvement of the remainder of 
 as to present the least possible ob- the street, or, in the event of its 
 struction to the ordinary public use neglect or refusal so to do, it might 
 of the streets; also that when re- authorize the levy of special assess- 
 quired, it should conform to the ments or taxes against the property 
 established grades of the streets as of the company for the costs and 
 then or thereafter to be estab- expenses necessary to pave such 
 lished when such streets are right of way to conform to the re- 
 brought to grade; and that the mainder of the street improvement. 
 
602 STREET SURFACE RAILROADS. 
 
 the council from subsequently changing the rails so as to 
 conform to the street paving, since the regulations which 
 the council may impose are not limited to the time when the 
 road is built." In Louisiana, a street railway company occu- 
 pying a portion of the street by its roadbed and tracks may 
 be assessed its proportionate share of paving a street just 
 as the property-owners are assessed, and is bound to pay for 
 that portion of the work which its track alone makes, neces- 
 sary; that is, all expense for the portion of the work lying 
 between the exterior rails of the track and for a distance of 
 two feet from and exterior to the track on each side.'^ Quite 
 generally throughout the country, street railroads are re- 
 quired to pay the entire expense for the portion of the work 
 lying between the exterior rails of the track and for a dis- 
 tance of two feet from and exterior to the track on each 
 side;"* and the Supreme Court of the United States has held 
 that an ordinance of a city in Iowa, authorizing a railway 
 company to lay a street railway on the condition that the 
 company should pave between the rails, is subject to the pro- 
 vision of the Code of that State as to repealing and amend- 
 ing the articles of incorporation and imposing conditions, 
 and does not constitute a contract between the company and 
 the city or the State, the obligation of which is impaired by 
 laying a tax upon the company for paving the space of one 
 foot outside the rails, imposed by statute. '' In Wisconsin, 
 
 12. Pawcatuck Val. St. Ry. Co R. A. 716; Dallas v. Dallas Consol. 
 V. Town Council of Westerly (R Tract. Co. (Tex. Civ. App.), 33 S. 
 I.), 47 Atl. 691. W. 757; Sanford v. Pawtucket St. 
 
 13. Shreveport v. Prescott, 51 R. Co., 19 R. I. 650, 35 Atl. 67, 4 
 La. Ann. 1895, 46 L. R. A. 193, Am. & Eng. R. Cas. (N. S.) 318, 
 26 So. 664, citing Ottawa v. Carey, 33 L. R. A. 564. 
 
 108 U. S. iiQ, 27 L. Ed. 669. And 14. See ante, chap. 4, I 12. 
 
 see Storrie v. Houston St. Ry. Co., 15. Sioux City Ry. Co. v. Sioux 
 
 92 Tex. 129, 46 S. W. 796, 44 L. City, 138 U. S. 98, 34 L. Ed. 898, 
 
SPECIAL ASSESSMENTS. 603, 
 
 the legislature is not prohibited from exempting from, pay- 
 ment of special city assessments, the property of railroad 
 companies which have paid a license fee provided for in lieu 
 of such assessments, by a constitutional provision making 
 it the duty of the legislature to provide for the organization 
 of cities, and to restrict their power of taxation and assess- 
 ment so as to prevent abuse in assessment and taxation/^ A 
 valid assessment is sufificiently shown by the proper assessing- 
 officer, ahhough it appears that with his consent and ap- 
 proval another person was employed to do clerical work in 
 writing up the assessment-roll and putting valuations of 
 property thereon, provided it was done either under the per- 
 sonal supervision and direction of the assessor, or that he 
 afterward considered and adopted it.'=' In Kentucky, it makes 
 no difference whether the method prescribed by the charter 
 of a corporation for the assessment of a special tax in aid 
 of the corporation has been followed in the assessment of 
 railroad property, since such property must be assessed as 
 an entirety by the State Board of Railroad Commissioners.'* 
 Processes by which assessors arrived at the value of street 
 railroad properties are immaterial to affect the validity of its 
 assessment if they finally conclude that it is honestly worth 
 in the market, in cash, the sum assessed.'' 
 
 46 Am. & Eng. R. Cas. 169, 11 18. Vanceburg & S. L. Tp. R. 
 
 Sup. Ct. Rep. 226, 9 Ry. & Corp. Co. v. Maysville & B. S. R. Co., 
 
 L. J. 251. 63 S. W. 749. 
 
 16. Milwaukee El. R. & L. Co. 19. Detroit Citizens' St. Ry. Co. 
 V. Milwaukee, 69 N. W. 796. v. Common Council of Detroit 
 
 17. Tampa v. Mugge, 40 Fla. (Mich.), 85 N. W. 96, 7 Det. 
 326, 24 So. 489. Leg. N. 677. 
 
INDEX. 
 
 A. 
 Abandonment: page 
 
 right to operate limited by ordinance, when abandoned 56 
 
 to extend not abandoned by nonuser, when 96 
 
 of franchise, as to 122 
 
 when nonuser evidence of 128 n. 
 
 of part of railroad route in New York (Railroad Law, § 103), 176, n. 
 Abating Nuisance. See Nuisance. 
 Abuse: 
 
 carrier must protect passenger against 499, 
 
 Abutting Owners: 
 
 when may restrain street railroad 9 
 
 authority conferred by municipality to operate street railroad 
 
 exercised with discretion and not to injury of 63 
 
 railroad in narrow alley to injury of, not authorized 63, n. 
 
 street railroad intruding upon public street trespass against 65 
 
 consent required for operation of street railroad, how given. 71, 78 
 
 along main line unnecessary for extension 94 
 
 not consenting, proceedings in New York court 97 
 
 when not bound in proceeding to determine necessity of street 
 
 railroad 99 
 
 when one-half do not favor road, proceedings taken 100 
 
 when can maintain action to prevent unauthorized construction 
 
 of road 102, 132 
 
 must own the fee of the street to maintain such action 102 
 
 cannot restrain construction of road if sufficient statutory con- 
 sents 104 
 
 may impose condition in granting consent 104 
 
 consent of, not required for extension or renewal of franchise. . 125 
 
 rights of, in streets considered 134 
 
 street railroad not additional burden upon fee of 135, 144 
 
 right of, in country road diflfers from right in street, how. 139 
 
 when entitled to damages and injunction 140, 154 
 
 shade trees removed from highway without compensation to.... 141 
 
 taking of property of, for street railroad 143 
 
 when entitled to compensation for taking street for railroad 
 purposes 14S. n. 
 
•6o6 INDEX. 
 
 jVbutting Owners — Continued: paqe^ 
 
 easement in street for light, air, and access 149 
 
 right of, in street, how limited and controlled 150 
 
 right to compensation of, against railroad company, not against 
 
 city 151 
 
 remedies of, for taking street for railroad purposes 152 
 
 when not entitled to damages for violation of ordinance 152 
 
 two or more may join as plaintiffs to restrain nuisance 153 
 
 suit as to paving against consolidated company 172 
 
 consent of, unnecessary for traffic arrangement between street 
 
 railroads or for use of tracks 174, 179 
 
 established rule in New York 180 
 
 must consent to authorize erection of elevated incline plane in 
 
 street 184 
 
 may use certiorari to test validity of ordinance 200 
 
 when may have injunction against accumulations of ice and 
 
 snow 231 
 
 cannot maintain action for delay in travel caused by constructing 
 
 railroad in street 244 
 
 railroad not liable to, for cutting down roadbed to grade of 
 
 street 266 
 
 Acceptance : 
 
 of franchise for extension, how made 95 
 
 generally m 
 
 not indicated by silence for short time 112 
 
 of ordinance by company binds it as to every condition 211 
 
 of franchise requiring vigilant watch, when implied 228 
 
 Access: See Light, Air, and Access. 
 
 to abutting property, obstructions of, how prevented 231 
 
 Accord and Satisfaction: 
 
 by one of several tort-feasors discharges all 313 
 
 Acquiescence: 
 
 defense to action to restrain unauthorized construction 103 
 
 Acquisition: 
 
 of right to use street, how obtained 131 
 
 Action: 
 
 at law against one usurping right to operate street railroad will 
 not lie . . . cj 
 
 to recover possession of franchise usurped, will not lie 57 
 
 to restrain unauthorized road, plaintiff must prove absence of 
 consents jq, 
 
 to annul grant and recover deposit, when allowed iia 
 
 by stockholder to set aside corporate lease, when permitted 122 
 
 mstituted by municipality to restrain unauthorized use of street. . 131 
 
INDEX. 607 
 
 Action — Continued : page 
 
 substitution of grantee of title to land as plaintiff in 154 
 
 when carrier may recover damages recovered by passenger 
 against it for injury in collision 342 
 
 passenger violating carrier's regulation cannot maintain, for con- 
 sequent ejection 435, 471 
 
 may be maintained against one using nontransferable ticket in 
 violation of contract 440 
 
 passenger may maintain, if ejected for refusal to pay fare wrong- 
 fully demanded 479 
 
 by passenger for failure to transport, when maintainable 490 
 
 for wrongful ejection, maiiitainable although no personal injury 
 suffered 504 
 
 by passenger against carrier, presumed to be for negligence 
 
 rather than for assault where pleadings oral 541 
 
 Adequate Remedy at Law: 
 
 what constitutes, so as to prevent actionable relief 133 
 
 Admissions: 
 
 when admissible in support of defense of intoxication 550 
 
 Advertising: 
 
 street railroad no power to lease space in cars for 24, n. 
 
 Affidavit: 
 
 expressing opinion as to public convenience, etc., will not au- 
 thorize certificate 70 
 
 may use, on application in proceeding to determine necessity of 
 road 99 
 
 Agent: 
 
 when may consent for abutting owner to street railroad 78 
 
 individual lessee of railroad corporation treated as agent of, 
 
 when 1 19 
 
 Air. See Light, Air, and Access. 
 
 Aisle: 
 
 of street car, when passenger may stand in 525 
 
 Alabama: 
 
 constitutional provision as to street railroad 18, n. 
 
 forfeiture clauses self-executing 46, n. 
 
 Alighting: 
 
 passenger may assume crosswalk between tracks safe 425 
 
 may assume platform safe 43° 
 
 upon safe place, relation of carrier and passenger ceases 449 
 
 passenger allowed a reasonable time in 4Si 
 
 when passenger not justified in assuming speed reduced for him, 452 
 
 as to duty of carrier to passenger at time of 479 
 
 lady passenger must have time to clear her skirts of car in 483 
 
 carrier must furnish safe place for passenger to alight in. . 485, 524 
 
6o8 INDEX. 
 
 Alley: ''*''' 
 
 street railroad not authorized in narrow 63, n, 
 
 Alter: See Charter; Legislature; Repeal. 
 
 power to, not exhausted by one alteration 41 
 
 when power to, reserved, State may prescribe how to be exer- 
 cised 41 
 
 exclusive right controlled by reserved power to 114 
 
 Ambiguity: 
 
 as to terms of public grant construed in favor of public 200 
 
 Ambulance: 
 
 right of way of, with street car and other vehicles 320- 
 
 Amendment: 
 
 of municipal ordinance inoperative against rights vested 20, n. 
 
 as to charter 39 
 
 to municipal charter, power to alter exercised by 41 
 
 reserved power to amend controls exclusive franchise 114 
 
 complaint in action for injuries in alighting by passenger 
 against carrier amended by inserting allegation that car had 
 " nearly stopped " S41 
 
 Animals: 
 
 street railroad company liable for frightening 328 
 
 as to collision between street cars and. 338 
 
 notice that steam roller used upon tracks likely to frighten, need 
 
 not be given 402 
 
 rules as to carrying live, in car 464 
 
 Annulment: 
 
 or forfeiture of charter 43 
 
 Apparent Peril. See Peril. 
 
 Appeal: 
 
 order appointing commissioners to ascertain compensation not a 
 final order 192 
 
 allowed from decision of railroad commissioners as to change of 
 motive power 203 
 
 Appellate Division: 
 
 of New York, appointment of commissioners by 97 
 
 must confirm report of commissioners as to necessity of road.. 100 
 can only confirm or refuse to confirm a favorable report as to 
 
 necessity 100 
 
 when to set aside report of commissioners to determine necessity, 102 
 Appliances: 
 
 municipal authorities may require use of improved, when 220 
 
 such as are necessary to company may be adopted 244 
 
 for repairing may be used, although travel thereby obstructed. . 260 
 
INDEX. 609 
 
 Appliances — Continued : page 
 
 bridge not a part of street railroad appliances, when 263 
 
 company must furnish suitable 273 
 
 as to maintenance of 278 
 
 by passenger carriers 415, 427 
 
 carrier's duty to furnish safe, in relation to employees 533 
 
 Application. See Petition. 
 
 Appraisal: 
 
 commissioners of, when not disqualified 165 
 
 of lands condemned, how proceedings for, conducted 166 
 
 Appropriation. See Eminent Domain. 
 
 Arbitration: 
 
 consents may require arbitration of disputes 106 
 
 Arrest: 
 
 of street-car driver for running into wagon, evidence inadmis- 
 sible in action for injuries from collision 400 
 
 Articles of Association. See Charter, 
 
 Ascertainment: 
 
 of compensation for lands taken, how made 162 
 
 Assault: 
 
 when action for, may not be maintained by passenger having 
 
 paid fare refusing to pay again ./ 490 
 
 upon passenger by carrier's employee, when action maintainable 
 
 therefor 49i 
 
 when carrier not liable for, for ejecting nonpaying passenger... 496 
 upon passenger by stranger, as to carrier's liability therefor. . . . 498 
 municipal court of New York has not jurisdiction in action for. . 542 
 
 Assent: 
 
 of corporation to alteration of charter, when necessary 39 
 
 Assessors: 
 
 different kinds of property may be assessed by different 571 
 
 Assessment: See Special Assessments. 
 
 when a basis of uniform taxation under Federal Constitution... 570 
 
 Assignee: 
 
 of street railroad property assumes performance of duty, when, 121 
 
 Assigns: 
 
 use of word in charter, how construed 118 
 
 Assistant: 
 
 employed by conductor, etc., in line of his duty, when carrier 
 
 liable for injury to ; ^ 538 
 
 Atlanta Consolidated Transfer Co.: 
 
 cannot be compelled to issue transfers by Atlanta 445 
 
 39 
 
6lO INDEX. 
 
 Attributable Negligence: ''*™ 
 when negligence of one controlling child non sui juris attribu- 
 table to it 387 
 
 when negligence of driver of vehicle attributable to one riding 
 
 therein 387 
 
 when negligence of carrier not imputed to passenger 388 
 
 Attorney=General : 
 
 when must intervene to procure forfeiture of corporate rights.. 43 
 
 in Illinois may restrain construction of unauthorized road 103 
 
 when may institute proceedings to prevent unauthorized use of 
 
 street 132 
 
 may proceed to vacate charter of company charging excessive 
 
 freight 225 
 
 Authorities. See Municipal Authorities. 
 
 Authority: 
 
 to grant street railroad franchise not implied 24 
 
 Avenues. See Streets. 
 Averments: See Pleading. 
 
 of petition in proceeding to determine consent 99 
 
 Avoidable Injury — Avoidable Accident: 
 
 when negligent company liable notwithstanding negligence of 
 plaintifif 383, 520 
 
 Axle: 
 
 of street car breaking because of latent defect, carrier liable for 
 
 injury occasioned thereby, w^hen 430 
 
 Award : 
 
 of compensation, when set aside, as excessive 167 
 
 B. 
 Barriers: 
 
 when to be placed on defective street 260 
 
 Basket . See Packages. 
 Bell. See Signals. 
 Benefits: 
 
 to landowner, what, in condemnation proceeding 166 
 
 Bicyclists: 
 
 care to be exercised by, in approaching or crossing street-car 
 tracks 380 
 
 testimony of, as to length of time for bicyclist to dismount, how 
 
 far admissible 400 
 
 Bidder: 
 
 in New York, consents must inure to best 87 
 
INDEX. 6ll 
 
 Bids : I' AGE 
 
 for franchise 82 
 
 when cannot be rejected 88 
 
 when invalidated 88 
 
 terms and conditions of 89 
 
 Boarding Car: 
 
 rules as to, generally considered 457 
 
 next to parallel track not necessarily negligent 527 
 
 Board of Aldermen: 
 
 powers of, as to franchise in New York city 234 
 
 Board of Electrical Control: 
 
 powers of, in New York city 204 
 
 Board of Public Works: 
 
 must consent in New Jersey to reconstructing street railroad.... 218 
 
 Board of Railroad Commissioners. See Commissioners; State Rail- 
 road Commission. 
 
 Bolt: 
 
 projecting underneath step and injuring passenger, when carrier 
 not liable for 429 
 
 Boundaries: 
 
 of city enlarged enlarges railroad charter, when — 78 
 
 Brake Chain: 
 
 when carrier liable for injury by breaking of 432 
 
 Brakes: 
 
 carrier bound to anticipate conditions when cars cannot be con- 
 trolled by ■ . 429 
 
 bound to furnish adequate 537 
 
 cannot delegate duty to servants 537 
 
 Branch; See Extension. 
 
 Breach of Contract. See Action; Contract; Damages; Passenger. 
 
 Bridges: 
 
 use of, for street railroad considered I93 
 
 within New York municipalities controlled by highway commis- 
 sioners 19s 
 
 right to cross, substituted for bridge crossed for five years (New 
 
 York Railroad Law, § no) '. • • 196, n. 
 
 repair of, generally 262 
 
 not considered within paving ordinance 262 
 
 across canals, rights of street railroad upon 263 
 
 injury to passenger by iron falling from, not necessarily showing 
 negligence 4^3 
 
6l2 INDEX. 
 
 _ ., .. PAGE 
 
 Building: 
 
 when moving of, not to suspend operation of street railroad 274 
 
 Bumper: 
 
 of trolley car, passenger riding upon, is negligent 469 
 
 Bundles. See Packages. 
 
 Burden of Proof: 
 
 when defendant has, on motion to set aside an injunction against 
 unauthorized construction 104 
 
 plaintiff must show negligence in action therefor 277 
 
 negligence in action for killing a dog not shown merely by un- 
 usual rate of speed 342 
 
 considered generally in action for injuries other than by passenger 
 against carrier 394 
 
 always rests upon the plaintiff .' 394 
 
 By=Laws. See Regulation. 
 
 C. 
 Cable; See Electrical Conductors. 
 
 Cable Road: 
 
 may be authorized by statute S 
 
 cannot construct, under authority to operate horse railway 109,11. 
 
 compensation for use of track of, by electric street railroad, how 
 
 determined 183 
 
 care required in operating cars upon 271 
 
 may construct conduit in roadbed 274 
 
 operated where animal power prescribed, not liable for injuries 
 
 unless negligent 280 
 
 driver crossing in front of cable car not necessarily negligent 318 
 
 travelers must be notified of car's approach upon 450 
 
 passenger cannot take signal for crossing another track as an 
 
 invitation to alight 4^4 
 
 rate of speed upon curves in relation to passengers SI7 
 
 California: 
 
 forfeiture clause not self-executing 46, n. 
 
 right of way of railroad company in, how assessed for taxes .... 580 
 
 Canada: 
 
 rails, poles, and wires of street electric road taxable as real estate, 578 
 
 Canal: 
 
 as to street railroad crossing 263, 277 
 
 Capital Stock: 
 
 subscriptions to, limited as to time 21, n. 
 
 of corporation may be subject to taxation 571 
 
 taxation of, generally 584 
 
INDEX. 613 
 
 Car Bam: page 
 
 rights of street railroad company as to 109 
 
 cars brought in and taken out on side streets, when 109 
 
 Car Driver. See Driver. 
 
 Care: See Carriers; Conductors; Contributory Negligence; Employees; 
 Motorman; Negligence, 
 required of street surface railroad generally, except as to pas- 
 sengers and employees 269 
 
 degree of, required of steam roads ". 271 
 
 company not required to absolutely prevent acciderts 273 
 
 of driver, etc., of street car to prevent accident 293, 318 
 
 required to prevent collision between street cars 337 
 
 of passenger carriers generally 414 
 
 different degrees of, required at different times and places 417 
 
 of parcels by carrier when left in car ; 505 
 
 required of passengers generally 522 
 
 Carriers of Passengers: See Care; Negligence. 
 
 municipal authorities may require street railroad to use latest 
 
 methods and appliances 220 
 
 bound by representation as to fare, made by conductor 224 
 
 care as to passengers required of, generally 414 et seq. 
 
 statute and municipal regulations concerning, to be observed.... 418 
 care observed by, in maintenance of tracks, cars, motive power, 
 
 etc 415 
 
 as to cars and appliances 427 
 
 inspection , 430 
 
 rules adopted by the company 432 
 
 rates of fare 43S 
 
 transfers 440 
 
 contract limiting liability 445 
 
 when relation of carrier and passenger commences 446 
 
 ceases 449 
 
 who are not passengers 448 
 
 duty of motorman, etc., in management of car 450 
 
 of employees in looking after safety and comfort of passen- 
 gers 454 
 
 as to care while passenger is boarding car 457 
 
 while passenger is alighting 479 
 
 crowding cars 467 
 
 allowing live animals and dangerous weapons in cars 464 
 
 regulations by, as to entering and leaving cars 471 
 
 permitting riding on platform, running-board or steps 472 
 
 care observed by, as to trespassers and newsboys 487 
 
 damages for failure to carry passengers 490 
 
6l4 INDEX. 
 
 Carriers of Passengers — Continued: 
 
 as to care, etc.— Continued : ^*™ 
 
 liability for assault, etc., on passenger, by employee 49i 
 
 for assault by stranger ., 498 
 
 for ejection by employee • 500 
 
 for false arest S06 
 
 for injury to passenger in collision with other ve- 
 hicle S08 
 
 for placing passenger in position of apparent peril. . 512 
 
 for avoidable accident 520 
 
 what rate of speed unreasonable as to passenger 515 
 
 care required as to curves and speed thereon S16 
 
 when presumed negligent S18 
 
 care to be observed as to children, passengers 527 
 
 to be observed as to infirm persons, passengers 529 
 
 intoxicated persons, passengers 531 
 
 employees S33 
 
 pleading in actions for injury by passenger against 539 
 
 burden of proof in such actions S42 
 
 questions of evidence in such actions 545 
 
 questions for jury in such actions 552 
 
 instructions to jury in such cases SS6 
 
 damages in such cases, when deemed excessive SS8 
 
 must take notice of municipal ordinance regulating management 
 
 of cars 419, 426 
 
 when, may sell special tickets at reduced rate 440 
 
 duty of, as to its employees, considered generally 533 
 
 must supply safe machinery, appliances, and help for operating 
 
 car 536 
 
 cannot relieve itself of duty to furnish safe cars, etc., by direct- 
 ing servants so to do 537 
 
 Cars. See Street Cars. 
 
 Caution: See Care; Contributory Negligence; Negligence. 
 
 Cerebral Hemorrhage: 
 
 whether result of injury in collision, matter of expert testimony, 403 
 
 Certificate: 
 
 of public convenience and a necessity 67 
 
 Certiorari: 
 
 to review certificate of public convenience and a necessity.... 69 
 
 when abutter may use, to test validity of ordinance 200 
 
 Change: 
 
 required to be furnished by conductor to passenger 477 
 
 Change of Motive Power. See Motive Power. 
 Charge to Jury. See Jury, Charge to. 
 
INDEX. 615 
 
 Charter: vags 
 
 a delegation of sovereign authority 12 
 
 as to power to grant special 14, n. 
 
 use of streets, how restricted in 14, n. 
 
 incorporators bound by claim in 15 
 
 how construed 15, n. 
 
 conditions prescribed by Constitution or annexed to grant.... 17 
 
 early special charters of Pennsylvania as to street railroad 20 
 
 authority delegated only to street railroad for public use 22 
 
 the delegated authority cannot be implied , 24 
 
 intendment of, to control in construing 28 
 
 curative acts, validating exercise of authority 29 
 
 a contract, how construed 32, 36, n. 
 
 never presumed to grant exclusive right 34 
 
 power granted by, when within municipal control 35 
 
 power not expressed in, negatived 37 
 
 amendment or repeal of 39 
 
 forfeiture or annulment of 43 
 
 not necessary to limit number of tracks in street by Si( u. 
 
 how distinguished from franchise 52 
 
 street railroad cannot operate under, alone 60 
 
 municipal ordinance must conform to, to authorize street railroad, 65 
 
 as to authority to construct branches 94 
 
 may provide for legal consent of any branch of municipal gov- 
 ernment 218 
 
 of company charging excessive fare may be vacated 225 
 
 power to make by-laws, etc., construed -. 232 
 
 of city of New York as to requiring license fees 233 
 
 corporation takes, subject to right of taxation. 568 
 
 Checks: 
 
 statute may require carrier to furnish 229 
 
 Child — Children: 
 
 as such, cannot consent to street railroad for parent 78 
 
 playing upon street to be warned of approaching car 295 
 
 care to be exercised generally by, in crossing street railroad 
 
 tracks 374 
 
 when non sui juris 37i 
 
 duty of company when child thrown upon fender 386 
 
 in action for injury to plaintiff, must show absence of contribu- 
 tory negligence by ■.':■■■ ^^^ 
 
 sufficiency of testimony to' justify recovery in action for injury 
 
 to : 396 
 
 carrier must provide for safe transportation of 428 
 
 frightened by carrier's servants, when action for injury thereby 
 will lie ., 4^7 
 
6l6 INDEX. 
 
 Child — Children — Continued : ^a<=e 
 
 when action for injury to, while trespassing upon car, can be 
 
 maintained 489 
 
 measure of care exercised by, as passengers upon street cars 527 
 
 City. See Municipahty. 
 
 City Council. See Municipal Authorities. 
 
 Coin; See Tender. 
 
 Collision: 
 
 upon cable road authorized to use animal power only, negligence 
 
 must be shown 280 
 
 at street crossings 313 
 
 between steam train and electric car, as to 333 
 
 at steam railroad crossing, how negligence aflfected by presence 
 
 of flagman 335 
 
 between street cars 326 
 
 care required to prevent, between street cars 337 
 
 with animals or other vehicles, as to 338 
 
 with persons on or near track by street car 343 
 
 between street car and workman upon street 349 
 
 carrier bound to exercise highest degree of care to prevent 508 
 
 Colorado: 
 
 constitutional provision as to street railroad 18, n. 
 
 Column. See Pillar. 
 
 Command: 
 
 of conductor to passenger to leave car, when actionable 505 
 
 Commissioners: See State Railroad Commission. 
 
 in New York to determine if road should be constructed... 17, 71 
 board of railroad, to determine convenience and necessity for 
 
 street railroad 23, 67 
 
 decision of board of railroad, when reversed 69 
 
 board of railroad, may administer oaths, etc 69 
 
 order of board of railroad, not a judgment subject to review, 
 
 when 71 
 
 appointment of, to determine if road should be constructed in 
 
 New York q7 
 
 to determine necessity of road, report of not final or self- 
 operative loo 
 
 to determine necessity, not appointees of legislature, but of 
 
 court loi 
 
 appointed for hearing parties interested loi 
 
 act as court jqj 
 
 of appraisal, when not disqualified 165 
 
 to be appointed for extension of road over river iPS, n. 
 
INDEX. 617 
 
 Common Carriers. See Carriers. 
 
 Common Council. See Municipal Authorities. 
 
 Commutation: page 
 
 for taxes ^-jj 
 
 Compensation: 
 
 property not taken for public use without 40 
 
 for use of street, who may question adequacy of, and how 116 
 
 when abutters not entitled to, for construction of street railroad, 137 
 
 for lands taken, proceedings to ascertain 162, 168 
 
 considered generally 167 
 
 what is " just compensation " 168 
 
 "just compensation " for use of tracks, how ascertained 184 
 
 rental value considered in determining 185 
 
 for crossing tracks of other road, must be made 188 
 
 how ascertained 192 
 
 for use of turnpike, how ascertained 193 
 
 when paid by one company to intersecting trolley road 202 
 
 Compensatory Damages. See Damages. 
 
 Competing Lines: 
 
 how controlled and prohibited 35 
 
 Complaint. See Pleading. 
 
 in daughter's action for personal injuries, inadmissible in par- 
 ent's action for loss of daughter's services 402 
 
 Compliance: 
 
 with ordinance may be required in consents 106 
 
 with statute, municipal and other regulations required 306 
 
 Concurrent Negligence: 
 
 plaintiff failing to exercise reasonable care may recover unless 
 injury occasioned by 384 
 
 of driver of wagon immaterial in action against street-car com- 
 pany for injuries occasioned by collision between street car 
 and such wagon 400 
 
 Condemnation Proceedings: 
 
 form prescribed in, used in proceeding to determine necessity, 99 
 
 statutes authorizing, how construed 156 
 
 by corporation to construct road in streets, cannot build same 
 
 substantially outside street 157 
 
 when railroad company prevented from maintaining 159 
 
 when may be discontinued 165 
 
 maintained by one company for right to use tracks of another, 182 
 
 unnecessary to procure right to cross tracks of other road 186 
 
6l8 INDEX. 
 
 _, J... PAGE 
 
 Conditions: 
 
 as to street railroad prescribed by Constitution or annexed to 
 
 grant ■'7 
 
 generally prescribed by municipality as to use of streets 19, 54 
 
 new, imposed when IP 
 
 "terms and," construed in Ohio Act 20, n. 
 
 upon which consent shall be given 83 
 
 as to existence and powers of street surface railroad corpora- 
 tion (New York Law) 92. n. 
 
 imposed with consents, rights of grantee and public thereunder, 104 
 if unreasonable, allow proceeding as if consent were wanting. . . 105 
 
 if accepted, corporation bound thereby los 
 
 and rights included in franchise 107 
 
 imposed by local authorities, how enforced no 
 
 as to acquiring franchise of former company 218 
 
 franchise may impose vigilance as 227 
 
 license fee or percentage of earnings may be exacted as 233 
 
 previously existing, may be shown if same as of time of accident, 401 
 printed on back of transfer, not binding on passenger, when. . 442, n. 
 
 Conditions Subsequent: 
 
 forfeiture of franchise not waived by nonperformance of, when, 129 
 
 Conductor: 
 
 municipality may require street railroad to employ 2ig 
 
 may bind carrier by representatioii as to fraud 224 
 
 ordinance may require vigilant watch by 227, 228 
 
 must enforce carrier's regulation 434 
 
 may bind carrier by representation as to fare 439 
 
 must be competent and skillful 441 
 
 not required, as matter of law, in New York 451 
 
 absence of, may be negligence 451 
 
 when carrier liable for instruction of, to passenger to walk on 
 
 track 456 
 
 duty of, as to passengers boarding car 461 
 
 when should countermand unauthorized signal 463 
 
 when carrier not liable for injury to intending passenger assisted 
 
 to board car in motion 464 
 
 may remove passenger carrying dog in car, when 464 
 
 when may require removal of package by passenger 467 
 
 requesting male passenger to vacate seat in favor of ladies, carrier 
 
 liable if injury occasioned thereby 471 
 
 when chargeable with knowledge that passenger has delivered 
 
 ticket to assistant 478 
 
 carrier liable for excessive force used by, in ejecting passenger, 487 
 of street car not driver of " carriage " within New York statute, 496 
 what disorderly conduct justifies, in ejecting guilty passenger. . 502 
 
INDEX. 619 
 
 Conductor — Continued : pags 
 
 made peace officer, does not relieve carrier from false arrest by, 507 
 need not have notice communicated to other employee that 
 passenger needs assistance, to bind carrier 530 
 
 Conduit: 
 
 as to ordinance requiring street railroad to furnish 218 
 
 for cable, when may be constructed in roadbed 274 
 
 Confirmation: 
 
 of commissioner's report as to necessity, etc 100 
 
 Conflict: 
 
 between grants and franchises, as to 1 14 
 
 right to construct railroad prevents authorities from hindering, 
 ■«t<= 115' 
 
 Connecticut: 
 
 forfeiture clauses not self-executing 46, n. 
 
 meaning of " public convenience and necessity " in statute of. . 71 
 
 Connecting Lines: 
 
 regulation as to passage over, for one fare to be complied with. . 433 
 
 Connecting Roads: 
 
 rights of, in relation to one another 184 
 
 Consents: 
 
 for street railroad of local authorities and abutting owners re- 
 quired by Constitution I7, 60, 71 
 
 determination of commissioners in lieu of property-owners 18 
 
 of local authorities once given cannot be withdrawn ig 
 
 without limitation of time, when invalid 21 
 
 when property for street railroad taken without 22 
 
 of municipal authorities not necessary to construction of rail- 
 road in street 49 
 
 control of street generally delegated to municipal authorities.... 50 
 
 when revocable, may be given by municipal authorities 60 
 
 of local authorities in separate municipalities, when all required 
 
 for construction of street railroad 61 
 
 to lay street railroad does not authorize two distinct roads. . . 63, n. 
 of local authorities where unnecessary terms cannot be imposed, 65 
 
 New York Railroad Law, § 91 72, n. 
 
 New York Railroad Law, § 92 73, n. 
 
 of abutting owners and local authorities 74 et seq. 
 
 former, how ratified (New York Law) 92, n. 
 
 of abutting owners on main line for extension 94 
 
 locating extension before consents received 96 
 
 to extension of seven years, how granted 96 
 
 proceedings in absence of 97 
 
 when absence of, must be averred in proceeding to determine 
 necessity of road 99 
 
620 INDEX. 
 
 Consents — Continued : tage 
 
 preventing construction of road without 102 
 
 conditions imposed with rights of grantee and public thereunder, 104 
 
 cannot control rate of speed in granting, when no 
 
 when may be presumed no 
 
 required by Constitution for using street for railroad purposes, 143 
 required for change of motive power 202 
 
 Conservator of the Peace. See Conductor; Police Power. 
 
 Consideration: 
 
 contract protected by United States Constitution founded upon, 35 
 imposed for ordinance, does not relieve against prior license 
 fees 109 
 
 Consolidation: 
 
 of street railroad corporations, how controlled 3S 
 
 franchises of separate corporations, how transferred on 58 
 
 considered generally 168 
 
 of parallel lines prohibited 169 
 
 of railroad corporations, eflfect as to taxation 597 
 
 Constitution. See Constitutional Law; Federal Constitution; States. 
 Constitutional Law: 
 
 in California, street railroad not transportation company within 
 
 Constitution 7 
 
 contemporaneous interpretation as to inclusion of street railroad 
 
 in constitutional provision 8, n. 
 
 right to operate street railroad granted to individuals, when. . 8 
 
 prohibitions of, as to street railroad 13, 17 
 
 of various States as to street railroad 18, n. 
 
 doctrine of vested rights as applied to charters 32 
 
 protecting railroad securities 40, n. 
 
 eflfect of reserved power to alter charters 41 
 
 legislative rate of fare authorized, protected by 57 
 
 provision of New York Constitution as to street railroad 71, n. 
 
 municipal ordinance authorizing extension, not unconstitutional, 95 
 prohibition against "taking" private property without com- 
 pensation I ., 
 
 when enlargement of liability for paving constitutional 213 
 
 State Constitution and laws should protect from oppressive tax- 
 ation Jgg 
 
 Construction: 
 
 of street railroad, outside of street n 
 
 depending upon local authorities and abutters 17 
 
 of statutes granting rights favorable to public 36 
 
 of power to alter charter -o 
 
 where consent unnecessary, local authorities cannot impose 
 
 terms upon street railroad 55 
 
INDEX. 621 
 
 Construction — Continued : page 
 
 of roadbed, tracks, turnouts, and switches 242 
 
 cannot be governed by court of equity, when 242 
 
 may be commenced on any part of charter route 243 
 
 what modes of, must be adopted 244 
 
 remedy for unauthorized or defective 245 
 
 and maintenance, how enforced 246 
 
 of electrical conductors, care required in 269 
 
 Construction Company. See Contractors. 
 
 Contact: 
 
 between wires carrying diflferent currents of electricity must be 
 prevented by carrier 537 
 
 Contract: 
 
 corporate charter, a 32 
 
 State cannot destroy executory, under power to repeal charter. . 40 
 when municipal authorities may make irrevocable, for use of 
 
 street by street railroad 60 
 
 when impairment of, justifies judicial intervention 67 
 
 accepted franchise for street railroad is a 104 
 
 disabling railroad corporation from performing its functions, 
 
 void ■ 119 
 
 when municipality precluded from requiring change of rails.... 242 
 between street railroad and individual for single track not 
 
 binding 244 
 
 carrier cannot make, limiting liability to provide safe passenger 
 
 transportation 445 
 
 recovery may be had for breach of contract to safely transport. . 490 
 that nonuser shall not operate as forfeiture, cannot be made. . . . 570 
 
 Contractors: 
 
 liability of, for damages generally 274 
 
 Contributory Negligence: 
 
 ignorance of contact with electric wires no excuse for 285 
 
 Tennessee statute as to, inapplicable to action against electric 
 
 railroad company 309 
 
 as to collision between ambulances, etc., and street cars 320, 322 
 
 duty of driver as to a car approaching from rear 344 
 
 what is, of one standing near track 347 
 
 of one stepping backward on track 348 
 
 question of, one of fact 348 
 
 of workman on or near street-car tracks, what is 352 
 
 as to crossing street-car tracks considered generally 354 et seq. 
 
 greater caution to be exercised where cars run close together.. 362 
 
 rule to stop, look, and listen, how applied 365 
 
 of pedestrians considered 37i 
 
 of children 374 
 
 of infirm persons ; 379 
 
622 INDEX. 
 
 PAGE 
 
 Contributory Negligence — Continued : 
 
 of bicyclists 380 
 
 avoidable injury notwithstanding 383 
 
 what proof sufficient to show absence of 39S 
 
 the knowledge of surroundings always competent on question of, 397 
 
 when passenger guilty of, in boarding car 457 
 
 care required of passengers generally 522 
 
 Convenience; See Public Convenience and Necessity. 
 
 Conveyance: 
 
 may include franchise • S8 
 
 Corporate Power: 
 
 not conferred by ordinance authorizing extension 95 
 
 Corporate Purposes: 
 
 what are, of street railroad company in proceedings to condemn, 162 
 
 Corporate Rights: 
 
 saved in case of failure to complete road, when 92, n. 
 
 Corporations: 
 
 when delegated " eminent domain " 8 
 
 private, cannot obstruct highway 9, n., 10, n. 
 
 powers of, expressly granted .' 15 
 
 no legal existence, when 21, n. 
 
 rights of, how controlled by legislature 21, n. 
 
 may acquire franchise extending beyond their term of existence, 21, n. 
 
 claiming right must show legislative warrant . , 23 
 
 defects in organizing, how cured 31 
 
 powers of, extended to accomplish purpose of 37 
 
 consent of, necessary to alteration of charter 39 
 
 nature of, cannot be changed under reserved power to alter, etc., 40 
 
 executory contracts of, not to be destroyed 40 
 
 may extend street railroad without consent of stockholders .... 42 
 
 de facto, when become de jure 43 
 
 not ended by nonperformance of charter conditions 43 
 
 forfeiture of, without judicial procedure, when 46 
 
 no power in themselves to operate street railroad 67 
 
 president of, cannot consent to street railroad unless authorized 
 
 by directors 79 
 
 right of, in New Jersey to extend street railroad depends upon 
 
 what 96 
 
 usurpation of franchise byj who may complain against iii 
 
 on revocation of exclusive right to street, cannot object to other 
 
 company's use 114 
 
 transfer of powers and property by, how limited 117 
 
 de facto, cannot maintain condemnation proceeding 160 
 
 complying with legislative requirements, may condemn lands and 
 
 decide extent of taking, etc 161 
 
INDEX. 623 
 
 Corporations — Continued: page 
 connecting corporations to carry for one fare (New York Rail- 
 road Law, § 104) 
 
 ^' 177; ti. 
 
 Cotenant: 
 
 cannot by consent to street railroad bind his cotenant 79 
 
 Councilmen. See Municipal Authorities. 
 Counsel Fee: 
 
 reasonable, may be imposed as condition for consent 106 
 
 Counterfeit Money: 
 
 coin tendered in payment of fare, one may be ejected therefor. .. 478 
 
 carrier not liable for malicious prosecution of criminal proceed- 
 ings by conductor against passenger for passing 507 
 
 County. See Municipality. 
 
 County Boards: < 
 
 may levy and collect tax in excess of general tax, when 571 
 
 County Commissioners: 
 
 in Pennsylvania, when to permit use of county bridge 194 
 
 Creditor: 
 
 cannot object to alteration of charter, when 39 
 
 Crossing: 
 
 protection of public at, police power 35 
 
 of tracks of one road by another at grade, considered 186, 333 
 
 how compelled 186 
 
 of steam road in highway by street road, question for local au- 
 thorities 188 
 
 right under statute must be determined as statute stood when 
 
 application made 188 
 
 New York statute as to crossing steam road 191, n. 
 
 when compensation paid by intersecting road 202 
 
 care required of street-car carrier as to passenger at. 417 
 
 Crossings. See Street Crossings. 
 
 Crosswallc: 
 
 when railroad switch placed properly in, city must repair 265 
 
 Crowding Cars: See Front Platform; Open Cars; Rear Platform, 
 one boarding crowded car may recover for injury sustained 
 
 thereon 464 
 
 as to, generally 467 
 
 caution to be exercised by carrier 467 
 
 more care on part of carrier when passenger forced to ride out- 
 side 467 
 
 not negligence as matter of law to permit crowding 468 
 
 carrier only held to reasonable diligence under the circumstances, 468 
 
624 INDEX. 
 
 Culverts: ='*ge 
 
 as to ordinance requiring street railroad to maintain 218 
 
 Curative Acts: 
 
 validating exercise of authority 29 
 
 retrospective, when and how 30 
 
 corporation cannot be created by ; 32 
 
 Curtain Rods: 
 
 duty of carrier to provide safe appliances does not extend to.... 428 
 
 Curves: 
 
 in railroad track preventing sight of obstruction, duty of traveler, 319 
 passenger must not be exposed to unnecessary danger upon. . 468, 516 
 rate of speed upon, generally, as to passenger 516 
 
 D. 
 Damages: 
 
 against one usurping right to operate street railroad not revocable 
 
 in action at law 57 
 
 special, need not be proved to restrain unauthorized construction 
 
 of road 102 
 
 abutting owner must prove special, to restrain unauthorized road, 103 
 
 when liquidated, not provided in charter 130 
 
 recoverable in action to abate nuisance 132 
 
 railroad corporation cannot claim, for change of grade 243 
 
 paid by city for defect in street, when recoverable against street 
 
 railroad . . 265 
 
 recovered by passenger in collision with other vehicle, when re- 
 coverable by carrier against driver of other vehicle 342 
 
 special, must be pleaded 392 
 
 what evidence of injuries admissible under complaint charging 
 
 specific inj uries 401 
 
 what verdicts have been set aside as excessive 410, 558 
 
 may include compensation for indignity, etc., in action for ejection, 441 . 
 
 when compensatory, awarded in action for ejection 441 
 
 when may be recovered for unnecessary force used in ejecting. . 487 
 when passenger may recover for breach of contract to transport, 490 
 
 elements of, for breach of contract to transport passenger 491 
 
 one ejected unlawfully may recover, though no actual personal 
 
 injury is suffered 504 
 
 Danger: 
 
 railroad employees must be vigilant to guard against 227 
 
 care required in operating street cars commensurate with 269 
 
 one approaching place of, must be on lookout 389 
 
 Dangerous Driving: 
 
 in violation of ordinance and injury to driver from contact with 
 wire in street, and when action maintainable 292 
 
INDEX. 625 
 
 Dangerous Weapons: page 
 
 rules as to carrying, in car 464 
 
 Deafness: 
 
 does not absolve from duty to look 369 
 
 Declaration: 
 
 of carrier's servants, when competent 550 
 
 De Facto; See Corporation. 
 
 Defect; See Appliances; Bridges; Roadbed; Street Cars; Streets 
 and Highways; Tracks. 
 
 Defective: 
 
 construction, remedy for 245 
 
 Defense: 
 
 absence of consents no defense on motion to confirm report as to 
 
 necessity loo 
 
 what, in an action to enforce forfeiture of charter 129 
 
 that equipment compares favorably with that of similar road, not 
 
 a, in action by passenger for injury 422 
 
 nor that track was apparently in good condition 422 
 
 that plaintiff's injury was occasioned in violating carrier's rule 
 
 is a, although carrier was negligent 471 
 
 Definition: 
 
 " street railroad " i-S 
 
 " purchasers " in Alabama Code 9, n. 
 
 of franchise 52 
 
 " public convenience and necessity " in Connecticut statute 71 
 
 " eminent domain " 155 
 
 of phrase " form a continuous or connected line of railroad with 
 
 each other " 169 
 
 of phrase " such terms as they may agree upon " 172 
 
 " any mechanical power except steam " 200 
 
 " such motive power as they may deem expedient and 
 
 proper " 201 
 
 when, " may," imposes duty 210 
 
 " such turnouts, switches, and side tracks as may be deemed neces- 
 sary " 212, 24s 
 
 " regulate " • 216 
 
 " then," " thereafter " 217 
 
 "fare" as used in section loi. New York Railroad Law 224 
 
 "shall pave the street in and about the rails in a permanent 
 
 manner and keep the same in repair " 260 
 
 " keep the streets in good repair " 261 
 
 " pave " 262 
 
 " ordinary prudence," " reasonable prudence " 272 
 
 " at each end of the lines " 323 
 
 "railroad track," "rolling stock" defined 582 
 
 40 
 
626 INDEX. 
 
 Deflection: '■ag^ 
 
 slight, from authorized location of tracks may be made 240 
 
 Delays: 
 
 in travel, when not damage to property 243 
 
 Delegation: 
 
 to municipal authorities to condition and restrict street railroad, 18 
 to corporate bodies of right to construct and maintain railroad. . 22 
 
 of authority to grant street railroad franchise not implied 24 
 
 power to municipal authorities not to be delegated .... 27, 28, n., 66 
 carrier cannot relieve itself from duty to furnish safe appliances, 
 
 etc., by directing servants so to do S37 
 
 Demand: 
 
 when, to sue must be made upon corporation lessor 122 
 
 Demurrer: 
 
 to complaint alleging facts showing contributory negligence sus- 
 tained 391 
 
 separate defense alleging injury occasioned by plaintiff's negli- 
 gence, when demurrable 392 
 
 Derailment: 
 
 of car, not negligence as matter of law 422 
 
 a fact relevant to prove negligence, when 422 
 
 Derrick: 
 
 liable for injury occasioned by use of city derrick on street 
 railroad 311 
 
 Determination: 
 
 of commissioners to determine necessity, when binding 99 
 
 as to necessity, not final or self-operative . .' 100 
 
 Device: 
 
 failure to provide, for safety of passengers and employees, not 
 
 negligent as to one neither passenger nor employee 429 
 
 Diligence: 
 
 railroad company must observe at least ordinary, to prevent con- 
 tact with its wires 292 
 
 passenger must be, in boarding and alighting 461 
 
 Dirt: 
 
 street railroad may be required to remove 230 
 
 Discharge: 
 
 of one of several tort-feasors releases all 313 
 
 Discontinuance: 
 
 of proceedings to condemn, when permitted 165 
 
 Discretion: 
 
 of municipality in granting street railroad not subject to judicial 
 control 66 
 
INDEX. 627 
 
 Disorderly Person: page 
 
 may be refused transportation 449, 500 
 
 carrier must protect passengers from acts of 449 
 
 Disputes: 
 
 arbitration of, between grantee of franchise and employees re- 
 quired in consents 105 
 
 Dissolution: 
 
 corporate existence, how dissolved 43 
 
 District of Columbia: 
 
 electric road partly in, controlled by Interstate Commerce Act. . 419 
 Dividends: 
 
 effect upon, cannot be regarded in performing public duty ^ 228 
 
 Dock Department: 
 
 of city of New York authorized to grant extension of street 
 railroad 66^ n. 
 
 Documents: 
 
 received in proceedings before railroad commissioners 70 
 
 Dog: 
 
 not a trespasser (jn highway 342 
 
 motorman, etc., must not run down 343 
 
 Drivers: See Contributory Negligence; Motorman; Negligence. 
 
 of street cars must watch 292 
 
 duty of generally 298 
 
 of other vehicles, caution of, in crossing street-car track 
 
 generally 300, 354 
 
 rights of, at street crossings 313 
 
 duty of, as to meeting street cars 314 e< seq. 
 
 of carriage, duty of, as to car approaching from rear 344 
 
 has right to expect street car to be managed with care 340 
 
 when may cross street-car track in advance of an approaching 
 
 car 346 
 
 greater caution to be exercised where cars run close together. . . 362 
 care exerc'^ed in crossing tracks to turn into intersecting 
 
 streets 364 
 
 of street car, fact of arrest inadmissible in action for injuries in 
 
 collision, for causing which he was arrested 400 
 
 when negligence of, is shown by failure to sound bell 403 
 
 injured by jolt in turning out of street-car track, recovery against 
 
 company 426 
 
 Due Process of Law: 
 
 legislative unreasonable rate of fare not 41 
 
 ordinance impairing existing contract right not no 
 
 secured if tax law operates on all alike 570 
 
628 INDEX. 
 
 Dummy Engine: J^age 
 
 what liability occasioned in operating street car with 488 
 
 Dust: 
 
 company may be required to water tracks to prevent 232 
 
 Duty: 
 
 of carrier to carry passenger safely independent of contract .... 418 
 
 E. 
 Earnings: 
 
 percentage of, may be required in consents 106 
 
 of carrier considered in determining reasonableness of, ordinance 
 
 limiting fare 436 
 
 as to taxation of, generally 593 
 
 Easement: 
 
 of public in streets dominant 50 
 
 in street for limited time differing from one in perpetuity 56 
 
 granted for particular purposes ceases with the purpose .... 109, 123 
 
 in street for light, air, and access, when 149 
 
 railroad's right to occupy street a mere 186 
 
 in land acquired for railroad purposes, when taxable 582 
 
 Ejection: 
 
 claimed illness not excuse for riding on platform, in violation of 
 
 rule 434 
 
 action for, not confined to breach of contract for transportation. . 441 
 having transfer and taking wrong car, passenger may be ejected, 442 
 passenger cannot recover for, if he fail to procure necessary trans- 
 fer or pay fare 443 
 
 one paying fare on front platform and riding thereon in violation 
 
 of rule cannot be ejected 447 
 
 passenger carrying dog in car may be removed, when 464 
 
 parent may be ejected, refusing to pay fare of child 478, 501 
 
 one tendering counterfeit coin in payment of fare may be ejected, 478 
 passenger paying fare on one car changing to another and refus- 
 ing fare may be ejected 478 
 
 trespasser may be ejected from car 487 
 
 what disorderly conduct will justify ejection of guilty passenger, 502 
 
 passenger likely to become obnoxious may be ejected 503 
 
 action for wrongful, maintainable although no personal injury 
 
 suffered 504 
 
 leaving car at command of conductor is 505 
 
 of intoxicated persons, when permitted 532 
 
 complaint in action against carrier for, averments of 540 
 
 Electrical Conductors: 
 
 New Jersey Act as to placing underground 25, n. 
 
 as to license fees imposed upon, by police regulation 109 
 
 wires strung in streets and topping branches of trees therefor. . 141 
 
INDEX. 629 
 
 Electrical Conductors — Continued: page 
 
 abutter cannot cut feed wire because two tracks laid when only 
 
 one authorized 153 
 
 not authorized under grant to use electric motors 200 
 
 what grants to use motive power include trolley system 201 
 
 as to placing underground 247 
 
 overhead wires not authorized under New Jersey Subways Act.. 253 
 appliances for repairing, may be used though travel obstructed. . 260 
 
 care required in maintaining 260 534 
 
 break in wire, when evidence of negligence 279 
 
 raising feed wire from gutter, when negligent act 280 
 
 electrical wires, how maintained 283, 291 
 
 as to telephone and other light current wires 286 
 
 derangement of electric current upon 287 
 
 ordinance may require their use in streets 289 
 
 municipal liability for neglect to supervise 310 
 
 endangering safety of passengers, liability of carrier therefor... 513 
 to be properly insulated c_j7 
 
 Electricity; See Electric Road. 
 Electric Road: 
 
 when authorized by grant to use any motive power 17 
 
 statutes authorizing street railroad presumed to have intended 
 
 use of electricity 51^ n. 
 
 operated under authority to construct horse railroad track 109 
 
 when power to operate not conferred upon lessee of corporation, 121 
 
 not an additional burden upon the fee in streets 135 
 
 abutter cannot prevent construction of, because street is thereby 
 
 obstructed for uses prohibited by ordinances 153 
 
 when municipality may authorize electricity as motive power 
 
 though previously unknown 183 
 
 may be permitted to cross tracks of other road 187 
 
 established upon turnpike by condemnation 193 
 
 consent of local authorities required 193 
 
 not authorized under grant limited to horse power 200 
 
 company authorized to use steam engine in crossing steam tracks 
 
 may also use electric power 202 
 
 when to pay compensation to intersecting road 202 
 
 when action of city allowing, ratified 203 
 
 grant to use electric power not to contravene policy as to over- 
 head wires 204 
 
 care of electric wires required 283 
 
 caution upon, to avoid collision 297 
 
 rules of steam railroads not applicable to, as to right of way 320 
 
 partly in District of Columbia controlled by Interstate Commerce 
 Act 419 
 
630 INDEX. 
 
 Electric Road — Continued: ^*<=e 
 
 travelers must be notified of cars' approach upon 450 
 
 when may not be lawfully assessed by State board as property 
 used for railroad purposes 582 
 
 Electric Wires; See Electrical Conductors; Electric Roads. 
 
 Embankment: 
 
 in street by railroad company, when negligent 276 
 
 Emergency: * 
 
 persons acting in, not expected to act with perfect judgment, 456, 509 
 
 Eminent Domain: 
 
 to whom right granted 8 
 
 power to exercise, dormant until authorized by legislature 22 
 
 exercise only for public use 23 
 
 necessity for taking private property a legislative or political 
 
 question 23 
 
 whether uses are public, a judicial question 23 
 
 considered generally I5S 
 
 definition of ISS 
 
 for what purposes right exercised 162 
 
 unless railroad has power of, cannot commence construction 
 
 until authorized to complete 243 
 
 Employees: See Conductor; Motorman. 
 
 company must supply reasonably skilled and competent 273 
 
 care exercised to avoid street car by city employee while work- 
 ing on track 350 
 
 care required by passenger carriers in selection of 415 
 
 violating ordinance, carrier liable for injury thereby occasioned, 426 
 
 may bind employer acting in line of employment 448 
 
 carrier liable for injury occasioned by inexperience 453 
 
 duty of in looking after safety of passengers 454 
 
 failure of, to exercise best judgment not carrier's negligence.. 457 
 carrier liable for excessive force used by, in ejecting passenger, 487 
 assault upon passenger by carrier's, when action maintainable 
 
 therefor 4pi 
 
 acting in self-defense, carrier not liable for injury thereby 497 
 
 carrier's duty toward, considered generally S3.3 
 
 assume obvious risk of services 334, 537 
 
 upon street cars, to be protected by screens from wind and 
 storm 538 
 
 Enforcement: 
 
 construction and maintenance of railroad, how enforced 246 
 
 Entering Street Cars. See Boarding Cars; Carrier; Crowding 
 Cars; Passenger; Regulation; Street Cars. 
 
INDEX. 631 
 
 Equipments: See Appliances; Cars; Roadbed; Tracks. tage 
 
 of street railroad, municipal regulation as to 219 
 
 Equitable Action to Restrain. See Injunction. 
 
 Equity. See Injunction. 
 
 Estoppel: 
 
 when city estopped from consenting to street railroad 114 
 
 when corporation cannot claim regulation unreasonable 211 
 
 Evidence: 
 
 railroad commissioners not bound by technical rules of 70 
 
 statement that car was going at terrible speed, incompetent. . . . 327 
 recent rulings on, in actions for injuries from collision with street 
 
 cars 306 
 
 when plaintiflf's testimony as to speed of team disregarded 397 
 
 evidence sufficient to maintain action for injuries 398 
 
 under simple charge of negligence, evidence of willful intent 
 
 inadmissible 401 
 
 on question of ownership of car, witness may testify he knew 
 
 "of his own knowledge that this was a car of defendants".. 401 
 of previous accident, competent only when conditions same.... 401 
 when incompetent to ask if motorman was ringing gong when 
 
 approaching crossing 404 
 
 that plaintiff's injury was aggravated by improper medical treat- 
 ment may be shown 405 
 
 violation of rule may be proved in action for consequent ejec- 
 tion, without pleading it 435 
 
 plaintiflf's knowledge of such rule need not be shown 435 
 
 questions of, in actions for injuries to passengers 545 
 
 Examination: 
 
 of books of street railroad company, when may be required.... 233 
 
 Excavation: Sae Trench. 
 
 near railroad track no inference that it was made by railroad 
 company 395 
 
 Excessive: 
 
 compensation for lands taken rarely admitted 167 
 
 Exclusive Francliise — Exclusive Right: 
 
 not granted under general power to permit street railroad 64 
 
 never implied ". 108 
 
 general law of State prohibits 114 
 
 controlled by reserved power to alter, amend, etc 114 
 
 to operate with animal power not impaired by consent to another 
 
 company to operate on same street with other power 116 
 
 in city streets, not impaired when I16 
 
 to entire street for railroad purposes prohibited 241 
 
 Exclusive Privilege; See Exclusive Franchise. 
 
632 INDEX. 
 
 Excuse: **== 
 for violating carrier's rule not accepted unless equivalent to car- 
 rier's consent 435 
 
 Execution: 
 
 when corporate real property not sold separate from franchise 
 
 on S3, n. 
 
 when State railroad franchise might be sold upon 121 
 
 right to construct street railroad not sold on 57 
 
 Executor: 
 
 having power to sell cannot consent to street railroad 79 
 
 Exemplary Damages: See Damages. 
 
 when awarded in action for ejection 441 
 
 Exemption: 
 
 from taxation considered generally S73 
 
 when street railways in Wisconsin exempted from special city 
 
 assessments 603 
 
 Expense: 
 
 of reports to State, when chargeable against State railroad 264 
 
 Experts: 
 
 what inadmissible as guessing of medical 402 
 
 when motorman may testify as to his probable action in an 
 
 emergency 403 
 
 competent to testify in what distance car moving at certain speed 
 
 should be stopped 396, 403 
 
 medical, may testify whether cerebral hemorrhage could be 
 
 caused by injury in collision 403 
 
 Expiration: 
 
 of corporate charter, how prevented 21, n. 
 
 of franchise, proceedings upon 124 
 
 Express Matter: 
 
 authority to carry, taken away as condition of granting consent, 
 when 107 
 
 Expulsion. See Ejection. 
 
 Extension: 
 
 construction of ordinance authorizing 19, n. 
 
 right to build, does not authorize diversion from charter route, 26, n. 
 
 may be authorized under power to alter charter 42 
 
 certificate of public convenience not required for 70 
 
 of street railroad 90 
 
 conditions of 91 
 
 right to operate branches (New York Law) 92, n. 
 
 when subservient to conditions originally imposed 94 
 
 of same legal nature as that which is extended 95 
 
 requisite of application for main road not applicable to 95 
 
INDEX. 633 
 
 Extension — Continued: page 
 
 separate ordinance for each new street unnecessary 95 
 
 resolution accepting franchise for, when unnecessary 95 
 
 must be located before consents of abutters received 96 
 
 of franchise for seven years, when may be granted 96 
 
 of street railway in New Jersey depends on what 96 
 
 of franchise. See Renewal. 
 
 proceedings to review location of, in New York instituted 
 
 within fifteen days after notice 165 
 
 of railroad route over rivers (New York Railroad Law, § 96), 195, n. 
 
 when regulation of main road applicable to 213 
 
 when construction of road may be commenced on 243 
 
 F. 
 
 Failure. See Action; Contract; Damages; Passengers. 
 
 False Arrest: See Arrest. 
 
 when carrier liable for, upon charge of employee 506 
 
 False Imprisonment; See Arrest; False Arrest. 
 
 Fare: See Paying Fare; Rates. 
 
 contracting corporations to carry for one I77, n. 
 
 Father: See Parents. 
 
 as such, cannot consent to street railroad for child 78 
 
 Federal Constitution: 
 
 legislative power under, how limited 29 
 
 limitation by, as to retrospective laws 30 
 
 clause of franchise protected by 54 
 
 use of word " require " in 216 
 
 requiring reports as to passengers not in conflict with 233 
 
 does not always protect from unjust taxation 569 
 
 as to amendment in respect to taxation 570 
 
 nothing within, to prevent taxation of franchise 587 
 
 Federal Court: 
 
 when has jurisdiction to grant injunction as to street railroad., no 
 
 Fee: 
 
 in streets, when railroad not additional burden upon 135 
 
 construction of railroad in street where municipality owns.... 151 
 
 Feed Wires. See Electrical Conductors; Trolley Wire. 
 
 Fees; See License Fees. 
 
 Fellow Servant: 
 
 when negligence of, not attributable to one injured 38S 
 
 Fenders: 
 
 when and how maintained 281 
 
634 
 
 INDEX. 
 
 Fine: 
 
 municipality may enforce regulation of street railroad by 225 
 
 Fire Engines: 
 
 right of way of, as between street cars and other vehicles 320 
 
 Fireman: 
 
 in action for injuries to, in collision between hose-cart and 
 
 street car, what testimony admissible 403 
 
 Flagman: See Lookout; Signals — Signal Lights. 
 
 negligence of, accompanying use of city derrick on railroad 
 track 311 
 
 when motorman may rely upon, at railroad crossing 334 
 
 care exercised to prevent injury to, by street-car employees 352 
 
 Flaw. See Appliances; Street Car. 
 
 Florida: 
 
 street railroad taxed as real estate in 579 
 
 Footboard: See Open Car. 
 
 passenger must avoid dangerous position upon, if he reasonably 
 can 470 
 
 Force. See Carriers of Passengers; Conductor; Ejection; Employ- 
 ees; Passengers. 
 
 Foreclosure: 
 
 upon street railroad, who may bid at 9 
 
 franchise may be sold on S8 
 
 Forfeiture: 
 
 or annulment of charter 43 
 
 enforced only by State 44 
 
 clauses not self-executing 44, n. 
 
 clauses self-executing 46, n. 
 
 of charter, what ground of 47 
 
 when only waived by State S6, n. 
 
 of right to construct road determined by municipal authorities, 
 
 when 116 
 
 of franchise not afifected by nonuser of tracks for a specified 
 
 time 123 
 
 of franchise, how waived 126 
 
 what are causes for 128 
 
 what included in 130 
 
 when enforced for failure to construct road 130, n. 
 
 Forgery: 
 
 of signatures to petition consenting to street railroad 79 
 
 Formation of Street Railroad Corporation. See Charter; Corpo- 
 ration. 
 
INDEX. 635 
 
 Franchise: tage 
 
 to operate street railroad, upon whom conferred 8 
 
 not granted for private purposes 13 
 
 individuals incorporating do not confer upon themselves 14 
 
 not generally conferred by general laws 13 
 
 granted by municipality within contract clause of United States 
 
 Constitution 18, n. 
 
 ' for street railroad not used to cover private enterprise 23 
 
 municipal authority to grant, not a police power 26 
 
 many, thus excluding public from street except upon street 
 
 railroad not granted 28 
 
 legislative transfer to other corporation void 32 
 
 exclusive right to enjoy never presumed 34 
 
 statute or ordinance conveying, construed favorably to public. . 36 
 
 to operate surface, not changed to underground railroad 40, n. 
 
 when single right or privilege withdrawn, effect of 41 
 
 previously granted, how modified by amendment to municipal 
 
 charter ■ 41 
 
 power to alter means restriction, not enlargement 42 
 
 not conferred by inharmonious amendment of original grant. ... 42 
 
 when extended to acquire other roads 42, n. 
 
 when terminated without judicial proceeding 44 
 
 final action of municipal authorities resulting in, for street 
 
 railroad 50 
 
 how distinguished from charter or license 52 
 
 classes of 52 
 
 what are vested rights S3 
 
 essential properties of corporate existence distinguished from, 53, n. 
 
 of railroad corporation are rights essential to its operation 55 
 
 forfeited when conferred upon other corporation 56 
 
 to construct, etc., railroad, not sold on execution 57 
 
 exclusive right to operate street railroad not a franchise, when, S7 ' 
 
 right of legislature to change specified rate of fare, a 57 
 
 is alienable 58 
 
 power of municipality to grant 58 
 
 how controlled 62 
 
 not granted to corporation nonexistent 65 
 
 unlimited, invalid under authority to grant for specified time... 67 
 
 is property yy 
 
 mere inadvertence in use of words will not invalidate 81 
 
 bids for 82 
 
 resolution accepting, unnecessary, when 95 
 
 when and how extended for seven years g6 
 
 accepted, constitutes contract 104 
 
 what rights and conditions included in 107 
 
 conditions imposed in, only enforced by legal authorities no 
 
636 
 
 INDEX. 
 
 Franchise— Continued: """^ 
 
 usurpation of, who may complain against m 
 
 acceptance of ^^^ 
 
 not indicated by silence 1 12 
 
 rights under, how and by whom questioned 112 
 
 as to conflicting grants 1^4 
 
 to be a corporation, not transferable ii7 
 
 as to abandonment or revocation of 122 
 
 as to expiration and renewal of 124 
 
 forfeiture of, how waived 126 
 
 granting for street railways in New York city 234, n. 
 
 as to use of power, not subject to collateral attack 280 
 
 fixing rate of fare, when not to be modified 436 
 
 to build and operate street railway subject to taxation 568 
 
 value of for taxing, how ascertained in Louisiana 586 
 
 taxation of, generally 5^7 
 
 word, how used in Kentucky statute as to taxing 588 
 
 New York Tax Law as to (§ 182) S88, n. 
 
 as to tax on surface railroad not operated by steam (§ 185). . 589, n. 
 
 as to value of stock to be appraised (§ 190) SQO, n. 
 
 when railroad right to cross highway subject to taxation as 
 
 special 592 
 
 in Wisconsin, when inalienable as to taxation 592 
 
 under statute taxing real and personal property, not taxable... 592 
 
 Fraud: 
 
 in absence of, regularities in ordinance waived 66 
 
 adverse report as to necessity can only be impeached for loi 
 
 Freight: 
 
 authority to carry, taken away by consent to construct, when. . ix)7 
 
 Freight Rates. See Rates of Fare. 
 Frightening: 
 
 animals by operation of street cars, liability therefor 328 
 
 unusual things upon car 331 
 
 notice that steam roller used upon tracks likely to frighten 
 
 horses and animals, need not be given 402 
 
 Frontage: 
 
 consent of abutting owners to street railroad according to 79 
 
 Front Platform: See Crowding Cars. 
 
 ordinance against getting off and on at, when will not preclude 
 
 recovery for injury in riding upon 419, 472 
 
 one riding on, and paying fare of passenger, though rule vio- 
 lated thereby 447 
 
 passenger riding upon, may assume he will be reasonably pro- 
 tected ; ; 451 
 
INDEX. 637 
 
 Front Platform — Continued: ^age 
 
 when boarding at, negligence, as matter of law 460 
 
 as to crowding generally 467 
 
 not negligent, as matter of law, to ride upon 471 
 
 as to riding upon generally 472 
 
 passenger negligent for unnecessarily remaining upon 473 
 
 when carrier liable for death of a boy jumping on and off. . 488, 489 
 
 G. 
 Gates: 
 
 abs'ence of, from platform not in itself negligent unless re- 
 quired by ordinance 428 
 
 General Denial: 
 
 what proof permitted under 392 
 
 General Railroad Law: 
 
 applicability of, to street railroad determined by intent of statute, 6 
 
 of California, constitutional provision 7 
 
 usually applicable to street railroad 13 
 
 providing for organization of street railroads, as to 58 
 
 Georgia: 
 
 constitutional provision as to street railroad 18, n. 
 
 city of Atlanta, no power to compel Atlanta Consolidated Trans- 
 fer Company to issue transfers 445 
 
 Gong: See Signals — Signal Lights. 
 
 upon street car, when to be sounded 295 
 
 Goods: 
 
 street railroad not carriers of i 
 
 may carry, in absence of statute prohibiting 3 
 
 Grade — Grading: 
 
 municipality not liable for damages to abutter by railroad com- 
 pany's act in w 151, n. 
 
 as to meaning of " within " established grade 217 
 
 municipality may require railroad to conform to 243, 258 
 
 when city may compel street railroad to pay expenses of lower- 
 ing track to grade 264 
 
 cutting down and making embankment in street, when negli- 
 gent 27s. 282 
 
 cars running upon suitable grade, what accident should have 
 been foreseen 511 
 
 Grade Crossing: 
 
 to avoid street railroad may diverge from highway 65, n. 
 
 intersection of railroads, street and steam, at grade (New York 
 
 Railroad Law, § 12) 192, n. 
 
 Grant-. See Charter; Franchise. 
 
638 INDEX. 
 
 Grantee: *■*"£ 
 
 of statutory consents, rights of, under conditions 104 
 
 ambiguity in public grant operates against 200 
 
 Cripman: See Motorman. 
 
 must be on lookout 292 
 
 duties of, generally 298 
 
 Gross Earnings. See Earnings. 
 
 Guardian: 
 
 as such, cannot consent to street railroad for ward 79 
 
 Guards: 
 
 when required upon street cars 281 
 
 required by city ordinance yet not supplied, when negligent 281 
 
 use of, prescribed by municipality, when not defense in action 
 
 for negligence 335 
 
 use of, prescribed by municipality, courts cannot require 
 
 diflferent 336 
 
 when wheels of cars to be supplied with 428 
 
 Gutter: 
 
 not to be obstructed in removing ice and snow 230 
 
 H. 
 Handrail: 
 
 when passenger negligent in not taking hold of 460 
 
 Headlight: 
 
 absence of on electric car, not negligence in itself 281 
 
 Health: 
 
 statute providing for, liberally construed 229 
 
 Hearing: 
 
 turnouts and switches not declared obstructions without 244 
 
 Highway Commissioners: 
 
 consent of, to use turnpike for railroad yj 
 
 cannot authorize erection of elevated incline plane by street 
 railroad 184 
 
 control bridges within New York municipalities 195 
 
 Highway Crossings. See Crossings. 
 Highways. See Streets and Highways. 
 Horse Power: 
 
 operating steam roads upon streets by pj 
 
 Horse Railroad: 
 
 may be authorized by statute 5 
 
 authority for, not applicable to cable tramway 109, n. 
 
 care required in operating cars upon 271 
 
 travelers must be notified of car's approach upon 450 
 
INDEX. 639 
 
 Horses: page 
 
 as to frightening by operation of street car 332 
 
 untied and unattended, injury to by street car, when not ac- 
 tionable 341 
 
 notice that steam roller, used upon tracks, likely to frighten, 
 
 need not be given , . 402 
 
 Hose-cart: 
 
 right of way of, as between street cars and other vehicles 320 
 
 relative position and speed of, and car approaching, when com- 
 petent in action for collision 403 
 
 Husband: 
 
 as such, cannot consent for wife to street railroad 78 
 
 when negligence of, not attributable to injured wife 388 
 
 I. 
 Ice: 
 
 removal of, by street railroad may be compelled 229, 230 
 
 Illegal: 
 
 terms for street railway imposed make grant void 65 
 
 Illinois: 
 
 constitutional provision as to street railroad 18, n. 
 
 forfeiture clause of, not self-executing 44, n. 
 
 construction of unauthorized road, how prevented in 103 
 
 special interrogatories may be submitted to jury on material ques- 
 tion of fact '. 552 
 
 Immaterial: 
 
 statutory requirement not so regarded 78 
 
 Implication: 
 
 none lo grant franchise 24 
 
 what corporation takes by 38 
 
 not indulged against rights of public 107 
 
 grantee of public grant takes only by necessary 200 
 
 Implied: 
 
 power, when 28 
 
 Imprisonment: 
 
 municipal authorities may enforce regulation by 225 
 
 Improvements: 
 
 street railroad not bound to adopt every 271 
 
 in cars, etc., when must be adopted 279 
 
 Imprudence. See Prudence. 
 
 Inability: 
 
 to agree as to compensation may not be alleged and proved as a 
 
 conclusion 166 
 
 facts showing, must be alleged 166 
 
640 
 
 INDEX. 
 
 FACE 
 
 Incorporation. See Charter; Corporations 
 
 Indictment: 
 
 against unauthorized use of highway 131 
 
 against street railroad company for obstructing street, when had, 266 
 
 Individuals: 
 
 power to operate street railroad may be given to 8 
 
 not a franchise conferred upon corporations 9 
 
 may transmit franchises to corporations 9 
 
 determine necessity for street railroad corporation, when 14 
 
 cannot claim street railroad charter void 18, n. 
 
 that statute will benefit, not valid objection 24, n. 
 
 claiming grant, reasonable doubt solved against 36 
 
 interest of, must yield to public requirement 38 
 
 cannot challenge corporate existence until State declares for- 
 feiture 44 
 
 may rescind " consents " to operate street railroad 79 
 
 must show special mjury to enjoin construction of street railroad, 113 
 
 lease of corporate franchise to, cannot be made 118 
 
 liability of, with railroad company for accident 312 
 
 collisions between, and street car 343 
 
 Induction: 
 
 derangement of electric current 287 
 
 Inference: 
 
 of negligence must be fairly drawn from facts 303 
 
 when justified by occurrence of accident 394 
 
 Infirm Persons: 
 
 duty of street-car company as to, care to be exercised by 379 
 
 carrier cannot refuse to transport blind man 449 
 
 as to care exercised by, when passengers upon street cars 529 
 
 In Forma Pauperis. See Poor Person. 
 
 Injunction: 
 
 when issued to restrain construction of street railroad 12, n. 
 
 when granted to restrain unauthorized construction of road, 102, 132 
 
 in Illinois against unauthorized road 103 
 
 in action for, plaintiff must prove requisite consents wanting.... 103 
 temporary, in action to prevent unauthorized road, how set 
 
 aside 103, 133, n. 
 
 when Federal court may grant against ordinance no 
 
 private individual must show special injury to obtain 113, 132 
 
 when not granted because compensation inadequate 116 
 
 proper remedy of abutting owner to prevent unauthorized con- 
 struction of road 132, n. 
 
 may issue, to restrain one corporation from using tracks of an- 
 other 186 
 
INDEX. 641 
 
 Injunction — Continued: J"*™ 
 
 to prevent change of motive power 203 
 
 where county has control, court cannot interfere as to construct- 
 ing electric road 214 
 
 individual cannot procure against excessive fare 225 
 
 when rival coach company may be restrained by horse railroad. . 228 
 
 when granted to prevent accumulation of snow and ice 231 
 
 not issued to prevent municipal authorities from requiring change 
 
 in location of tracks 241 
 
 when courts cannot control manner of construction by 242 
 
 against city by street railroad company to prevent interference 
 
 with repair of street 265 
 
 railroad not entitled to, against city which has removed cross 
 rods, interfering with paving, from track 266 
 
 Injury: See Damages; Negligence. 
 
 to make carrier liable for, must be probable result of situation 
 which might have been foreseen 415 
 
 Insolvency: 
 
 when a defense in action to enforce forfeiture 130 
 
 Inspection: 
 
 of electrical conductors, care required 269 
 
 when recent, sufficient defense 394 
 
 if defect discoverable by, failure to inspect is negligence.... 428, S34 
 passenger carrier must make, so as to reasonably insure safety 
 
 against accident 43° 
 
 question of, sufficient, one for jury 432 
 
 Instruction to Jury. See Jury, Charge to. 
 
 Insulation: 
 
 of electric wires required 285, 537 
 
 Insult: 
 
 carrier must protect passenger from 499 
 
 Insurer: 
 
 user of electric wires not insurer against accident 291 
 
 Intendment. See Charter. 
 
 Intention: 
 
 to grant exclusive privilege not implied 108 
 
 Intentional Mischief: 
 
 when carrier's negligence amounts to 521 
 
 Interrogatories. See Special Interrogatories. 
 Intersections See Grade Crossings. 
 Intersections. See Crossings; Street Crossings. 
 41 
 
642 
 
 INDEX. 
 
 Interstate Commerce Act: '*™ 
 
 electric road partly in District of Columbia controlled by 419 
 
 Intoxication: 
 
 of person claimed to be injured may be shown in action for injury, 400 
 
 Intoxicated Person: See Intoxication. 
 
 may be refused transportation 449. Soc 
 
 carrier must protect passenger against acts of 499 
 
 received as passenger, how cared for 532 
 
 when, may be ejected •■ 532 
 
 Invitation: 
 
 to board car in motion, when implied 4^3 
 
 by employee to child to ride upon car against rules, when carrier 
 liable for inj ury to child 489 
 
 Iowa: 
 
 when street railroad not a "railway corporation" within taxing 
 statute 584 
 
 municipal ordinance within, as to assessing street railway for 
 paving construed 602 
 
 Irregularity. See Fraud. 
 
 when proceedings impeached for loi 
 
 J. 
 Joint Liability: 
 
 of railroad company and others for injury 312 
 
 Joint =-Stoclc Company: 
 
 when, may operate street railroad 8 
 
 Judicial Control: 
 
 municipality in granting street railways, not subject to 66 
 
 Judicial Notice: 
 
 that trolley car under safe speed may be stopped within 100 feet, 396 
 
 Judicial Proceedings: 
 
 necessary generally to procure forfeiture of corporate rights, 43, 48 
 
 Judgment: 
 
 in action against two may be rendered against one 312 
 
 in daughter's action for personal injury inadmissible in parent's 
 
 action for loss of daughter's services 402 
 
 Jurisdiction: 
 
 once acquired, all irregularities in granting street railroad fran- 
 chise waived 66 
 
 Jury: 
 
 exercise of reasonable care, question for 272 
 
 care of operators of street car, question of fact for 299 
 
INDEX. 643 
 
 Jury — Continued: page 
 
 testimony of two witnesses that carriage was on track and struck 
 from rear, when justifies submission of question of negligence 
 
 to jury 3p6 
 
 what are questions for, in actions for personal injuries 405 
 
 must determine if passenger's package incommodes others 465 
 
 some questions for jury in actions by passenger against carrier.. 552 
 
 Jury, Charge to: 
 
 general verdict for defendant directed 396 
 
 instructions to jury proper, in actions for personal injuries.. 406, 407 
 
 as to riding on footboard, when error 473, n. 
 
 in actions by passenger against carrier 556 
 
 K. 
 Kansas : 
 
 as to statutes empowering city councils to open streets, etc. . 27, n. 
 forfeiture clause not self-executing 46, n. 
 
 Kentucky: 
 
 railroad property within, taxable for municipal purposes 579 
 
 valuation of franchise by State board conclusive for city assess- 
 ment , ^ 582 
 
 how word " franchise " used in statute of, for taxing 588 
 
 indebtedness of corporation not deducted in, valuing franchise 
 
 for taxing 592 
 
 as to special tax upon railroad property within 603 
 
 L. 
 Labor: 
 
 conditions of, when not excuse for failure to operate road 274 
 
 Laches: 
 
 defense to action to restrain unauthorized road 103 
 
 Lease: See Lessees. 
 
 of franchise and property by street railroad corporation 117 
 
 of corporate franchise, etc., provided for in statute 118 
 
 not made to private individual 118 
 
 void leases of railroad property not enforceable for past-due rent, 1 19 
 
 when void lease of railroad property upheld 120 
 
 authorized by statute, how made by corporation 120 
 
 in perpetuity, when not permitted 122 
 
 of right to use tracks to other company not additional servitude, 138, n. 
 
 Leaving Cars; See Alighting; Carrier; Crowding Cars; Passenger; 
 Regulation; Street Cars. 
 
 Legal Tender. See Tender. 
 
644 INDEX. 
 
 L,egislature: ''*™ 
 
 unless prohibited, may authorize individuals to operate street 
 
 railroad 8 
 
 authority by, to carry passengers or freight may be granted i6 
 
 usually limits organization and operation of street railroad . . i8, 20 
 
 time limit of grant to operate street railroad 20 
 
 power of, how limited by Constitution 29 
 
 may cure and ratify municipal acts, when 30 
 
 when, cannot repeal or modify charter rights 32 
 
 reserved power of, to alter, etc., charter 39 
 
 in regulating rates may not destroy value of property 41 
 
 when, may take away corporate franchise , . 42 
 
 power to provide corporate forfeiture 47 
 
 has control over streets '. . . 13, 22, 49 
 
 under power to alter or amend, may regulate 54 
 
 may determine tribunal for proceedings to condemn 163 
 
 has control of streets and may delegate power to municipality... 214 
 may delegate power to any branch of municipal government .... 218 
 
 to fix rate of fare 222 
 
 may form taxing district for special purposes 567 
 
 power to tax generally 567 
 
 may confer power on municipality to tax street surface railroad, 569 
 surrender of legislative power to tax not implied 568, 569 
 
 Lessees: See Lease; Transferee. 
 
 use of word in charter, how construed 118 
 
 of street railroad property assumes performance of duty, when.. 121 
 
 when right to use electric system, not conferred upon 121 
 
 not authorized to use electricity, forbidden to lessor 200 
 
 liability of, for operating railroad 266, 274 
 
 Liability: 
 
 of street railway company for defects in street 260 
 
 of company for neglect to repair, how enforced 263 
 
 of street railroad to city for damages caused by former's failure 
 
 to repair street 265 
 
 of lessee or transferee of railroad 266 
 
 of railroad company and other individuals for accident 312 
 
 License — License Fees: 
 
 how distinguished from franchise 52 
 
 what privilege are and are not franchises 55 
 
 consents of local authorities and abutting owners not . ^ 82 
 
 fees may be required in granting consents 106, 232 
 
 when corporation not relieved from liability for .' 109 
 
 street cars may be licensed under police power 229 
 
 imposed only under express legislative authority 233 
 
 as to license fees in New York city 233 
 
 in Chicago 234. 
 
INDEX. 645 
 
 License — License Fees — Continued: page 
 
 percentage of gross earnings to be paid in State of New York. . 236, n. 
 
 may be exacted of street railroad in lieu of taxation on gross 
 earnings 5P5 
 
 imposed upon street cars, as to, generally 595 
 
 Licensee: 
 
 care required as to licensee on tracks 274 
 
 Light, Air, and Access: 
 
 easement in New York street for 149 
 
 Lights: 
 
 when placed upon defective street 260 
 
 when required upon car 297 
 
 Limit — Limitations: 
 
 time, for street railroad prescribed by Constitution 17 
 
 upon operation of street railroad by legislature 18, 20 
 
 of corporate existence, does not control capacity to take prop- 
 erty 21, n. 
 
 of legislature to impair vested rights under contract 34 
 
 grant without, gives only necessary powers 38 
 
 forfeiture if road not built within tinre, when 49 
 
 street railroad's franchise limited to life of corporation, when.. 66 
 
 of consents, etc. (New York Law) 92, n. 
 
 twenty years' nonuser of charter rights not abandionment 96 
 
 seven years' extension within power to impose limit of thirty 
 
 years upon consent 96 
 
 easemei.ts in street, how lost in twenty years 149 
 
 six years' statute, when bars right against construction of street 
 
 railroad in street 150 
 
 of rate of speed not authority to run up to limit at all times 308 
 
 Lineman: 
 
 telephone, may assume railroad company has used safe appli- 
 ances 290 
 
 Listen: 
 
 rule to stop, look, and, before crossing railroad tracks 365 
 
 Local Authorities: See Municipal Authorities. 
 
 who are " local authorities " 133 
 
 turnpike company not " local authority " 193 
 
 Location: 
 
 of street railroad no.t confined to streets, etc 11 
 
 of tracks on side of street, when presumed rightful iii 
 
 of tracks, as to, generally 237 
 
 when tracks may be located on side of street 239 
 
646 INDEX. 
 
 Locomotive Steam Power: ''*™ 
 
 not permitted on street railroad 5 
 
 used on highway, an additional burden 145 
 
 operated on streets owned by municipality, not infringement of 
 
 abutter's rights 151 
 
 used by electric road in crossing steam tracks, when 208 
 
 Look: 
 
 rule to stop, look, and listen before crossing railroad tracks 365 
 
 Lookout: 
 
 duty of motorman, etc., as to 292, 319, 450 
 
 failure to, does not excuse contributive negligence 296 
 
 Louisiana: I 
 
 as to measuring value of corporate franchise for taxing by 
 
 earning capacity 586, 592 
 
 as to assessing street railway roadbed and tracks for street 
 
 paving ► 602 
 
 Lunatic: 
 
 carrier must protect passenger against 459 
 
 M. 
 Macliinery: 
 
 carrier's duty to furnish safe, in relation to employees 533 
 
 Machine Shop: 
 
 when subject to local taxation 581 
 
 Maine: 
 
 constitutional provision as to street railroad 18, n. 
 
 forfeiture clauses self-executing 45i n. 
 
 as to statute of, imposing liability for negligence in erecting 
 and maintaining poles 309 
 
 Maintenance: 
 
 construction and, how enforced 246 
 
 Malicious Prosecution: 
 
 carrier not liable for conductor's act in criminal proceedings, 
 charging passenger with passing counterfeit money S07 
 
 Mandamus: 
 
 consent of local authorities toi extension not compelled by 94 
 
 who, as relator, may enforce operation of street railroad IS5 
 
 contract with municipality to maintain bridge enforced by 263 
 
 duty to repair street may be enforced by 266 
 
 operation of road may be enforced by 274 
 
 Manufacture: 
 
 company liable for defect discoverable in 263, 534 
 
INDEX. 6471 
 
 Map — Profile: pace 
 
 required by statute as to constructing road on private property, 190 
 
 Maryland: 
 
 forfeiture clause of, not self-executing 44, n. 
 
 electric road partly in, controlled by Interstate Commerce Act, 419 
 what a " street railway " within, as to taxation 595 
 
 Massachusetts: 
 
 constitutional provision as to street railroad 18, n. 
 
 forfeiture clause in, self-executing 46, n. 
 
 Master and Servant; See Carriers of Passengers; Employees; Motor- 
 man, etc. 
 
 Materials: 
 
 used in making cars, etc., how tested and inspected 534 
 
 Measure of Care. See Care. 
 Merchandise. See Goods. 
 Methods: 
 
 municipal authorities may require of passenger carriers use of 
 
 latest 220 
 
 Michigan: ' 
 
 city's consent to street railroad limited in, to life of company.. 66 
 Minnesota: 
 
 forfeiture clauses self-executing '. . 46, n. 
 
 when railroad property within municipality of, assessable for 
 city paving 581 
 
 when railroad franchise subject to specific taxation in 593, 594 
 
 Misconduct: 
 
 carrier must protect passenger against servant's willful 417 
 
 Missouri: 
 
 constitutional provision as to street railroad in 18, nj 
 
 forfeiture clause in, self-executing 46, n. 
 
 State control over streets transferred to municipality 50, n. 
 
 what is covered by "compensation" in... 184 
 
 statute imposing penalty of $5,000 for negligently killing, appli- 
 cable to street cars 310 
 
 statute of, requiring screens to protect employees upon cars and 
 enacting fine for noncompliance 538 
 
 as to statute providing for uniform assessment of street railroad, 583 
 
 Misuser: 
 
 not necessarily ground of forfeiture 47 
 
 Modify. See Charter; Legislature; Repeal. 
 
 Monopoly: 
 
 rights of, in public street not presumed $6, 108 
 
648 INDEX. 
 
 Montana: 1"*°= 
 
 constitutional provision as to street railroad 18, n. 
 
 Mortgage: 
 
 may include franchise 58 
 
 Motive Power: 
 
 statute may authorize use of any 5, Si, n. 
 
 right to use, how limited by charter 16 
 
 what authority to use, permits electric trolley 17 
 
 authorizing operation of street railroad by, merely a regulating 
 
 act 36, n. 
 
 prohibited by charter cannot be permitted by ordinance 65 
 
 electric, when may be used under authority to construct horse 
 
 railroad 109 
 
 not limited to power in use when charter granted 109 
 
 exclusive right to use animal power, consent to another to use 
 
 other power on same street 116 
 
 "any mechanical power except steam" construed 121 
 
 considered generally 197 
 
 New York Railroad Law concerning ( § 100) 198, n. 
 
 what are limitations upon grants to use 201 
 
 right to use, not subject to collateral attack 201, 280 
 
 only questioned by government making contract.... 201 
 
 changed on application to street railroad commissioners 202 
 
 use of, regulated by police power of municipality 207 
 
 care to maintain required of passenger carrier 415 
 
 Motor. See Motive Power. 
 
 Motorman — Gripman, etc. : See Contributory Negligence; Negligence. 
 
 ordinance may require vigilant watch by 227, 228 
 
 must be on lookout 292 
 
 not bound to infer existence of danger from vehicle upon other 
 
 track 296 
 
 duties of, generally 298 
 
 no liability for error in judgment of 301 
 
 may assume that child will not voluntarily remain upon track... 302 
 
 rights of, at street crossings 313 
 
 as to frightening animals 329 
 
 must look out at steam railroad crossings without regard to flag- 
 man -,- 
 
 competent to testify in what distance car moving at certain speed 
 
 may be stopped 3g5_ 403 
 
 declaration of, at place of, and a few moments after, collision, of 
 
 res gestae 400 
 
 when, may testify as to probable action in an emergency 403 
 
 when, must observe obstructions as brick piled near track 421 
 
INDEX. 649 
 
 Motorman — Qripman, etc. — Continued : page 
 
 duty of, in management of car generally 450 
 
 carrier liable for injury occasioned by inexperienced 453 
 
 duty of, in looking after safety of passengers 454 
 
 failure to exercise best judgment not carrier's negligence 457 
 
 Mule: 
 
 as to street-car frightening 332 
 
 JVIunicipal Authorities: 
 
 street railroad controlled by 7, n. 
 
 when may build and operate street railroad 10 
 
 delegated power to control streets 12, 58 
 
 ordinance of, permitting street railroad outside of highway, when 
 
 not questioned 12, n. 
 
 how controlled in granting right to street railroad 12, n., 58, 62 
 
 action of, as to street railroad, action of State 18, n. 
 
 power of, to prescribe conditions not presumed or implied. ... 19, 59 
 
 only reasonable conditions may be prescribed by 19 
 
 when, cannot consent to street railroad without time limit 21 
 
 right to lay out, open, etc., streets does not authorize street rail- 
 road 25, 64 
 
 general power to authorize street railroad, no authority for exclu- 
 sive franchise 64 
 
 ordinary powers sufficient to permit horse street railroad 26 
 
 power conferred to regulate use of streets, police power 26 
 
 cannot delegate its vested power 27, 66 
 
 legislative power over, limited only by Constitution 29 
 
 irregular acts of, how cured or ratified 30 
 
 when, may require union passenger station 42 
 
 legislative authority to regulate under power to alter and amend 
 
 charters delegated to 54 
 
 may impose conditions on granting consent to operate 54 
 
 when forfeited franchise may be conferred upon another corpora- 
 tion 56 
 
 giving right to operate street railroad to exclusion of all others 
 
 not a franchise, when 57 
 
 ■cannot deprive successors of powers to regulate street railroad. . . 61 
 authority conferred by, to operate street railroad exercised with 
 
 discretion and not to injury of abutting owners 63 
 
 when cannot authorize street railroad except upon petition 64 
 
 -ordinance of, must conform to charter as to street railroad 65 
 
 imposition of illegal terms by, avoids grant 65 
 
 not liable for act of grantee of void franchise 67 
 
 consent of, how obtained 77 
 
 not compelled by mandamus 94 
 
650 INDEX. 
 
 Municipal Autliorities — Continued : i'*oe- 
 cannot extend steam road to be operated by horse power over 
 
 city streets 95 
 
 when extension of seven years upon street franchise may be 
 
 granted 96 
 
 right to extend street railroad, how restricted by, in New Jersey, 96 
 proceeding to procure consent of, independent of proceeding 
 
 to procure favorable report as to necessity 100 
 
 may impose conditions in granting consent 104- 
 
 how controlled 105 
 
 must regulate rate of speed no 
 
 conditions imposed by, how enforced i la 
 
 may determine as to location of tracks 237 
 
 consent to location of tracks, when presumed in 
 
 cannot question right to construct road for want of abutters' 
 
 consent . 113 
 
 on revocation of exclusive franchise, may consent to another 
 
 use of street for railroad 114 
 
 when may order extension of street-car service iiS 
 
 when may accept surrender of street railroad franchise 124 
 
 may remove by force tracks unlawfully laid 133 
 
 may compel use of authorized motive power 133 
 
 may require in granting franchise, use of tracks for another com- 
 pany 176. 
 
 consents for use of tracks of one road by another not required 
 
 in New York 181 
 
 must consent to operating surface railroad upon turnpike 193 
 
 generally control motive power upon street railroad 199- 
 
 general power to regulate use of streets 205 
 
 power to regulate, how conferred and exercised 214 
 
 must exercise power conferred in manner prescribed 219 
 
 regulations of, as to servants, equipments, fares, etc 219- 
 
 may prohibit use of certain rails in future construction 220 
 
 may enforce regulation of, by fine and imprisonment 225 
 
 may prohibit smoking in street cars 229 
 
 use of salt or sand upon tracks 229 
 
 may compel removal of ice and snow 229 
 
 may require cars to be licensed 229 
 
 can only impose terms where consent to railroad necessary. . 236 
 
 power to regulate cannot be delegated 238 
 
 consent of, required for new location of tracks upon private 
 
 property 242 
 
 must determine necessity for repaving, when and how 258 
 
 as to compliance with regulations of 306 
 
 authorized to make reasonable ordinances as to management of 
 
 street cars 41Q, 
 
INDEX. 
 
 6sr 
 
 PAGE. 
 
 Municipal Authorities— Continued: 
 
 may be permitted to establish reasonable rates of fare. 435. 
 
 may have power conferred to tax street surface railroads...!!. 569. 
 
 have no inherent power to tax street surface railroads 569, 570 
 
 Municipality: 
 
 when liable for railroad company's neglect to repair street.... 261 
 for neglect to exercise supervision over electric wires.. 310- 
 
 not liable for railroad's improper location of turntable 311 
 
 regulation of, as to passenger carriers 4ig 
 
 same railroad property running through several, how taxed 583, 
 
 N. 
 Natural Person. See Individuals. 
 Nebraska: 
 
 constitutional provision as to street railroad 18, n. 
 
 Necessity: See Public Convenience and Necessity. 
 
 how defined and limited 159. 
 
 Neglect-. See Repair. 
 
 Negligence: 
 
 in construction and maintenance of railroad, how prevented.... 239 
 railroad not chargeable with, by construction in view of lower- 
 ing grade 243, 
 
 in operation of road, when lessee liable for 266 
 
 lessor not exempt from liability for operating road, when 267 
 
 presumption of, from certain occurrences 272 
 
 plaintiff must prove 273 
 
 when both lessor and lessee liable for 274 
 
 in maintaining, roadbed and tracks 275 
 
 cars and appliances 278' 
 
 fenders and other guards 281 
 
 as to care of electric wires 283 
 
 in relation to telephone or other light-current wires 286 
 
 as to lookout and signals 292 
 
 acts of company consistent with due care, recovery not had 281 
 
 when telephone company and electric railroad both liable for. . 291 
 as to compliance with statute, municipal and other regulations. . 306 
 
 as to municipal liability for street railroads 31O' 
 
 as to joint liability of street railroad with others 312 
 
 never justified by statute or other regulation 30S 
 
 violation of penal ordinance, when sufificient proof of 322- 
 
 as to street crossing' 313 
 
 as to right other than at street crossings 317 
 
 as to right of way SiQ- 
 
 as to ambulances, hose-carts, etc 320. 
 
652 
 
 INDEX. 
 
 Negligence — Continued: ^*°= 
 
 as to obstructing street with cars 322 
 
 as to rate of speed 323 
 
 as to frightening animals 328 
 
 as to collision with steam train 333 
 
 with animals or other vehicles 338 
 
 with other car 336 
 
 with persons on or near track 343 
 
 with workman upon street 349 
 
 greater caution to be exercised where cars are run close to- 
 gether 362 
 
 how alleged in pleading 39i 
 
 on motion for new trial defendant not required to stipulate its 
 
 negligence, and lack of plaintiflf's 392 
 
 absence of gate on platform, when not negligence 428 
 
 when presumed as against carrier 518 
 
 as to passengers and employees generally considered 414 
 
 when incumbent upon passenger to show freedom from 421 
 
 not proved as matter of law, because car is derailed 422 
 
 failure to provide device designed for protection of passengers 
 
 and employees, as to third person 429 
 
 in employing or retaining conductor, exemplary damages 
 
 awarded when 441 
 
 carrier's, as to boy's injury while mounting steps of horse car, 454, 464 
 carrier not negligent for permitting passenger's packages on 
 
 floor of car 466 
 
 carrier not negligent in permitting passenger to stand on run- 
 ning-board 47S 
 
 Net Earnings. See Earnings 
 
 New Jersey: 
 
 as to Subways Act for electrical conductors 25, n. 
 
 forfeiture clause, not self-executing 44, n. 
 
 self-executing 46, n. 
 
 as to act of, providing for incorporation of street railway com- 
 panies, etc., as to extensions 96 
 
 petition for location of tracks, when required 97> n. 
 
 as to right of one railroad to cross another 189, n., igo 
 
 requires consent of board of public works as to street railroad. . 218 
 injunction against rival coach company by street railroad, when 
 
 allowed 229 
 
 as to act requiring electrical subways 253 
 
 railroad properties not ordinarily assessed for local purposes in, 579 
 when railroad company taxed for embankments, tracks, etc., 
 
 upon another's land 580 
 
 ■when property of railroad company not used for railroad pur- 
 poses, subject to local assessment only 582 
 
INDEX. 653, 
 
 Newsboys: page 
 
 when not a passenger, although on car 44S 
 
 entering car to sell papers, not a passenger 489 
 
 carrier not liable for motorman's act in pushing, from car 490- 
 
 New Trial: 
 
 terms upon which granted 392 
 
 New York City: 
 
 charter of, authorizes license fee 233. 
 
 New York Railroad Law: 
 
 of 1850 as to formation of street railroad 4, n. 
 
 as to rapid transit acts 10, n. 
 
 constitutional provision as tc 18, n. 
 
 duty of maintaining highways devolves on State 22 
 
 forfeiture clauses not self-executing 44, n. 
 
 self-executing 46, n. 
 
 within what time road to be built under (§ 99) 49, n. 
 
 as to construction, extensions, etc. (general provisions, § 90) ... 62, n. 
 
 corporation prohibited from constructing street railroad without 
 consent of railroad commissioners 67 
 
 requisites to exercise of powers of future railroad corporations 
 (§ 59) 68, n. 
 
 railroad commissioners may certify part of route of street surface 
 railroad; power to revoke certificate; street railroad extension 
 (§ SPa) 69, n. 
 
 consent of property-owners and local authorities (§91) 72 
 
 consent for crossing highway with street railroad in 8a 
 
 condition upon which consent shall be given; sale of franchise at 
 public auction ( § 93) 83. 
 
 corporate rights saved in case of failure to complete road; right 
 to operate branches ; conditions ; former consents ratified ; lim- 
 itations (§ 106) 92, n. 
 
 proceedings in, for want of abutter's consent 97 
 
 proceedings if property-owners do not consent (§ 94) 97, n. 
 
 when one company may exclude another from constructing road 
 in street ■' "7 
 
 use of tracks of other roads ( § 94) ^75, "■ 
 
 construction of road in street where other road is built (§ 102), 175, n. 
 
 abandonment of part of route (§ 103) 176, n. 
 
 contracting corporations to carry for one fare; penalty (§ 104), 177, n. 
 
 provides for use of tracks in common by street railroads, when. . 180 
 
 requiring map of road through private property applies to cross- 
 ing steam railroad ■ 190" 
 
 as to street railroad intersecting steam road 191, n. 
 
 intersection of other railroads (§ 12) i92> n. 
 
654 INDEX. 
 
 J4ew York Railroad Law — Continued : ^*™ 
 
 extension of road over rivers; terminus in other counties; when 
 property-owners withhold consent; Supreme Court may appoint 
 commissioners ( § 96) IQS. n. 
 
 right to cross bridge substituted for a bridge crossed for five 
 years (§ no) 196, n. 
 
 motive power ( § 100) 198, n. 
 
 as to power to construct necessary sidings construed 213 
 
 as to rates of fare on leased and other roads, continuous trip. .. . 223 
 
 section loi as to rates of fare 223, n. 
 
 as to license fees 234, n. 
 
 as to franchise for street railways in New York city 234, n. 
 
 powers of board of aldermen in New York city 234, n. 
 
 percentage of gross earnings to be paid, etc. ; report of officers 
 
 (§ 95) 236, n. 
 
 as to placing electrical conductors underground 249, n. 
 
 authorizes municipalities to regulate rate of speed 327 
 
 as to inter- traffic contract of passenger carriage for single fare. . 437 
 
 as to section 39, article II 439, n. 
 
 as to Surface Railroad Act of 1884, chapter 252 440 
 
 as to section 104 for continuous trip 445 
 
 as to injuries to passengers while on platform, not applicable to 
 
 street railroad 473 
 
 as to injury to passenger conveyed upon public highway 496 
 
 New York Rapid Transit Acts: 
 
 do not permit lease in perpetuity 122 
 
 New York Tax Law: 
 
 providing for franchise tax on corporations 588 
 
 Next of Kin: 
 
 pleading in action for injury resulting in death, brought by repre- 
 sentative of 390 
 
 Nonperformance : 
 
 of charter conditions do not forfeit 43 
 
 Non Sui Juris: 
 
 when child is held to be 375 
 
 Nonuser: 
 
 not necessarily ground of forfeiture 47, 124 
 
 for twenty years not abandonment of charter rights 96 
 
 when failure to operate street railroad works forfeiture 124 
 
 Nortli Dakota: 
 
 constitutional provision as to street railroad 18, n. 
 
 word "roadway," as used in Constitution, how construed S79 
 
INDEX. 655 
 
 Notice: j,age 
 
 turnouts and switches not declared obstructions without 244 
 
 to railroad company of defect in roadbed in street unnecessary. . 259 
 when railroad company must have, of obstruction in street to be 
 
 negligent ; 376 
 
 if statute require, before action, it must be given, though injury 
 
 occasioned by neglect to repair street 310 
 
 when railroad company not liable for washout 317 
 
 of patent defect in track not required to make carrier liable 420 
 
 forbidding riding on platform should be posted on car 433 
 
 carrier must notify passenger if place to alight unsafe 486 
 
 to one employee that passenger needs assistance, notice to carrier. S30 
 carrier not chargeable with, that passenger is unused to street 
 "^"^ S3I 
 
 Nuisances: 
 
 ordinances concerning, etc., a police regulation 26 
 
 when trolley line presumed to rightfully occupy street ill • 
 
 when construction of road in street may be restrained as public. . 117 
 
 unauthorized use of highway a 131 
 
 action to abate, by whom maintainable 132 
 
 use of unauthorized motive power not a 133 
 
 two or more abutting owners may join to restrain 153 
 
 authorized tracks of street railways not 239 
 
 when packages in car may be removed as 467 
 
 O. 
 Observance: 
 
 of conditions imposed by local authorities, how enforced no 
 
 Obstruction: 
 
 street railroad in removing snow from track must not make 230 
 
 switches and turnouts in streets are not 244 
 
 upon streets, when street cars are 322 
 
 on or near track cannot be disregarded by passenger carrier 421 
 
 until passed, when relation of passenger and carrier continues . . 450 
 Occupying Cars; See Boarding Cars; Carriers of Passengers; 
 Crowding Cars; Regulation; Street Cars. 
 
 Officer: 
 
 of corporation cannot consent to street railroad unless authorized 
 by directors 79 
 
 Ohio: 
 
 "terms and conditions" in statute of 1877 construed 20, n. 
 
 want of statutory consent of abutting property-owners is a ques- 
 tion for municipal authorities only 183 
 
 section 3438, Revised Statutes, construed 213 
 
 as to statute in, forbidding use in streets of uninsulated wires 292 
 
656 ■- INDEX. 
 
 Open Car. See Crowding Cars. page 
 
 passenger riding on steps of, may assume he will be reasonably 
 
 protected 451 
 
 as to riding upon running-board generally 472 
 
 Operation — Operating: 
 
 of street railroad, by whom 8- 
 
 of trolley line in street for five years presumed rightfully iii 
 
 care required in operating, as to other travelers 269 
 
 Ordinance: See Municipal Authorities. 
 
 subsequently passed does not cure trespass against abutting owner, 65 
 
 exclusive privilege granted by, when void 66 
 
 granting authority to extend track not conferring corporate power, 95 
 separate, for extension in each new street, when unnecessary. ... 95 
 
 compliance with, may be required in consents 106 
 
 incidental expenses of, may be required as condition for consent. . 106 
 imposing terms as consideration does not relieve from license fees 
 
 previously imposed 109 
 
 when it impairs existing contract right, relief against no 
 
 reserving power to order new railroad, etc., how construed 115 
 
 presumed to be reasonable 215 
 
 limiting rate of speed must be reasonable and certain 226 
 
 limiting speed of street cars applies to electric cars 226 
 
 requiring fenders and other guards, compliance therewith 282 
 
 cannot enlarge common-law liability 306 
 
 may regulate operation of cars and number thereof 308 
 
 as to approaching street crossings, no basis of liability as between 
 
 passenger and carrier 418 
 
 competent evidence to show negligence 418 
 
 does not preclude recovery where one compelled to ride on 
 
 platform in violation of 418 
 
 whether reasonable as to rates of fare, how determined 436 
 
 Ordinary Care: 
 
 in the absence of regulation, street railroad in removing obstruc- 
 tion must exercise 231 
 
 Oregon: 
 
 forfeiture clause of, not self-executing 44, n. 
 
 Organization of Street Railroad Corporation. See Charter; 
 
 Corporation. 
 
 P. 
 Packages: 
 
 carried in boarding car, not a negligent act 460 
 
 rules as to carrying in car generally 464 
 
 regulation as to size and kind of, carried by passenger reason- 
 able 465 
 
 care of, when left in car 505 
 
INDEX. 5c^ 
 
 Parallel Lines: See Competing Lines. page 
 
 care required when cars run upon 271 
 
 Parallel Tracks: 
 
 distance apart for safety of passengers 423; 
 
 accident occasioned by sinking of one tracli bringing it closer 
 to the other ^^ 
 
 Paramount: 
 
 right of street railway in street superior to that of other travelers, 259 
 Parcels: See Packages. 
 
 care of, when left in car cqc 
 
 Parents: See Attributable Negligence. 
 
 negligence of, attributable to child, when 378 
 
 may be ejected from car for refusing to pay fare of child. . 478, 501 
 Parkways. See Streets and Highways. 
 Parties: 
 
 on application for extension, who are proper 98 
 
 when and how, bound in proceedings for extension 99 
 
 Passenger Rates. See Rates of Fare. 
 Passengers: 
 
 street railroad for transportation of i 
 
 authority to convey, by any power other than locomotive, author- 
 izes electricity 17, n. 
 
 comfort and safety of, within police power 35 
 
 traffic may be limited to, in granting consents 107 
 
 carrier may be required by statute to furnish tickets and checks 
 
 to 229 
 
 ordinance regulating approach to street crossings not basis of 
 
 liability between carrier and 418 
 
 must take notice of municipal ordinance regulating management 
 
 of cars 419 
 
 for safety of, carrier must furnish approved appliances 427 
 
 entitled to highest degree of care on part of carrier 429 
 
 need not be on lookout to avoid dangers from defects in appli- 
 ances, etc 430 
 
 not presumed to know carrier's regulation 433 
 
 must observe rule 434 
 
 may rely upon conductor's representation as to fare 439 
 
 not negligent for failure to discover error in transfer 440 
 
 may be required by terms of transfer to take next car 441 
 
 may be ejected if he take wrong car under transfer 442 
 
 not bound by conditions printed on back of transfer, when... 442, n. 
 under established practice to change without transfer may not be 
 
 ejected for failure to have transfer 443 
 
 cannot waive carrier's liability for safe transportation 445 
 
 42 
 
658 
 
 INDEX. 
 
 rAGE 
 
 Passengers — Continued : 
 
 when relation of, to carrier commences 44^ 
 
 relation of passenger and carrier only created by contract 447 
 
 whether relation of passenger and carrier established, a question 
 
 of fact 447 
 
 who are not 448 
 
 blind man may become 449 
 
 when relation of carrier and passenger ceases 449 
 
 duty of street-car employees to look after comfort and safety of. . 454 
 
 duty of, in boarding car 457 
 
 may rely on carrier ■■■ ■ 462 
 
 carrying dog in car, may be removed, when 464 
 
 must avoid dangerous position if he reasonably can 469 
 
 not negligent in standing upon running-board 475 
 
 rights and duty of, at time of alighting 479 
 
 carrier need not assist, in alighting 481 
 
 in alighting lady must have time to clear her skirts from car... 483 
 
 may not mistake signal for crossover for invitation to alight 484 
 
 may assume place of alighting safe 485 
 
 newsboy selling papers on car not a 490 
 
 when may maintain action for breach, of contract to transport. . 490 
 assault upon, by carrier's employees, when action maintainable 
 
 therefor 49i 
 
 provoking assault cannot recover against carrier therefor 497 
 
 assault upon, by stranger, as to carrier's liability therefor 498 
 
 leaving car at command of conductor, when may maintain ac- 
 tion 505 
 
 leaving parcels in car entitled to have them cared for by car- 
 rier 50s 
 
 action for false arrest by, against carrier, when maintainable.... 506 
 
 upon street car, injured in collision, action therefor. 508 
 
 when entitled to presumption of negligence as against carrier. . 519 
 
 care required of, generally 522 
 
 Paving and Repaying: 
 
 default in payment of expenses, when cause of forfeiture of 
 
 franchise 130 
 
 statute as to, how affecting consolidated company 172 
 
 • when enlargement of liability for, constitutional 213 
 
 as to, generally 253 
 
 when not required to make new paving 261 
 
 when city may remove cross-rods in track 265 
 
 Paying Fare: 
 
 when one not, is regarded as passenger 447 
 
 upon street railroads generally considered 476 
 
 change required to be furnished by conductor 477 
 
INDEX. 65g 
 
 Paying Fare — Continued : pags 
 
 passenger need not pay fare wrongfully demanded and sue for 
 
 return 479 
 
 railroads not highways upon which one can ride without 479 
 
 Pedestrians: See Contributory Negligence; Negligence. 
 
 rights of, at street-crossing 313 
 
 upon street railroad tracks, or near them 343 
 
 standing near car track with no apparent intention to cross, 
 
 when negligent 347 
 
 as to contributory negligence of, generally 371 
 
 may assume approaching car is under control 371 
 
 mandatory duty to look and listen in crossing street railroad 
 
 tracks, how applied 371 
 
 must make every use of facilities to avoid collision 37:^ 
 
 must act with ordinary prudence as to every source of danger... 372 
 
 cannot walk on street railroad track at night without care 373 
 
 care as to rapid passage on electric cars 373 
 
 Penalty: 
 
 of forfeiture on nonperformance of charter conditions, when.... 43 
 for violation of statute as to carriage for one fare by connecting 
 
 companies . . . , 177> n. 
 
 •when violation of ordinance punishable alone by, penalty im- 
 posed 306 
 
 Pennsylvania: 
 
 constitutional provision as to street railroad 18, n. 
 
 early special charters of, for street railroad 20, n. 
 
 as to organization of street railroad company under act of 1889, 38, n. 
 
 forfeiture clauses not self-executing 45. "• 
 
 as to imperious necessity for grade crossing 190, n. 
 
 use of toUbridge in, for electric railroad, when and how per- 
 mitted 194 
 
 driver of street car must look out without regard to flagman 335 
 
 statute of, as to taxing corporate capital stock 586 
 
 Percentages. See License Fees. 
 Peril. See Position of Apparent Peril. 
 
 Permit: 
 
 to relay tracks in paved street includes taking up pavement 259 
 
 Perpetuity: 
 
 rights in, in public streets not presumed 57 
 
 Persons. See Passengers. 
 
 Petition: 
 
 when necessary to authorize street railroad 64 
 
 for location of railroad track in New Jersey, when required. . 97, n. 
 naming streets on application for extension 98 
 
66o INDEX. 
 
 Petition — Continued : ''*°= 
 
 form of, in proceeding for commissioners to determine necessity 
 
 of road • 99 
 
 contents of, in proceeding to determine necessity 99- 
 
 Phrases-. See Words — Phrases. 
 
 Pliysician: 
 
 when evidence of, excluded as privileged communication 404 
 
 Pillars: 
 
 of elevated railroad track to be safe distance from track of surface 
 
 road 424 
 
 as to passenger riding on footboard and colliding with 424, 524 
 
 Placard. See Notice. 
 Place. See Alighting. 
 
 carrier must furnish safe, for passenger to alight in 485, 524 
 
 Platform: See Front Platform; Rear Platform. 
 
 intoxication of one claiming to be injured when thrown from plat- 
 form of crowded street car may be shown 40© 
 
 Platting: 
 
 effect of, and conveyance to street railroad in accordance there- 
 with 241 
 
 Pleading: 
 
 in action to enforce forfeiture of franchise, requisites of 12;? 
 
 requisites of petition in proceedings to condemn 163 
 
 facts showing inability to agree must be alleged : 166 
 
 as to, generally in actions for negligence in operating street cars, 389 
 
 requisites of complaint in such action 390. 
 
 violation of rule need not be pleaded in defense of action for con- 
 sequent ejection 435 
 
 in action for personal injuries by passenger against carrier...... 539 
 
 freedom from contributory negligence or facts showing must be 
 
 alleged ■.. 540 
 
 when oral, action by passenger against carrier presumed to be 
 
 based on negligence and not for assault 541 
 
 permanent injuries should be pleaded 565' 
 
 Pneumatic Tubes: 
 
 corporation to construct, not to operate a railroad 42, n. 
 
 Pneumonia: 
 
 four and one-half months after accident, not a result thereof 402 
 
 Poles: 
 
 for electric trolley road, how placed 13S, 138, n. 
 
 not authorized under power to use electric motors. 200 
 
 cannot be erected under New Jersey act for electrical subways. . 253 
 when diiTerent electric wires should be suspended upon same.... 290 
 of trolley line, when an unlawful obstruction 313. 
 
INDEX. 66l 
 
 Police Power— Police Regulation: page 
 
 ordinances regulating use of streets, etc., are a 26 
 
 includes right to regulate, for comfort, safety, and health of pas- 
 sengers, etc ,g 
 
 license fees imposed by, when not abrogated 109 
 
 rate of speed within jjo 
 
 municipal regulations of street railroads generally within 219 
 
 as to imposition of license fees upon street cars 233 
 
 carrier possesses power to prevent disturbances upon cars and 
 must exercise it 400 500 
 
 Poor Persons: 
 
 permission to maintain action as, when granted 393 
 
 what must be shown on application 393 
 
 Position of Apparent Peril: 
 
 driver of team placed in, by negligence of company and injured 
 
 may recover damages, notwithstanding errors on his part 385 
 
 passenger placed in, by carrier and injured may recover therefor, 
 notwithstanding unguarded act causing it 512 
 
 Power: See Motive Power; Police Power. 
 
 not granted expressly to municipal authorities withheld 27 
 
 to appoint, implies power to supervise loi 
 
 Precaution: 
 
 street railroad not bound to use every 271 
 
 President: 
 
 of street railroad cannot contract to suspend operation of cars, 
 when 274 
 
 Presumption: 
 
 that ordinance is reasonable 215 
 
 common council presumed to act upon facts calling for action. .. 215 1 
 
 of negligence, when arises 272, 421 
 
 when indulged by one operating car as to approaching vehicle. . . . 297 
 
 of negligence warranted under peculiar circumstances 423 
 
 when carrier presumed negligent 518 
 
 negligence of one colliding with street car not presumed in street- 
 car passenger's action against him for injury thereby 520 
 
 when trolley road presumed rightfully in street iii 
 
 of notice of defect in street may be rebutted 259 
 
 Prevention: 
 
 of railroad's construction without statutory consent 102 
 
 Prior Right: 
 
 when, under later grant of permission to use same street 65 
 
 Private Property. See Property. 
 Privilege, Special. See Franchise. 
 
662 INDEX. 
 
 Proceedings: ''*™ 
 
 if property-owners do not consent 97 
 
 by commissioners to determine necessity, when not binding on 
 
 propetty-owners 9^ 
 
 to determine necessity, averments in moving papers 99 
 
 independent of proceeding to procure local consents 100 
 
 to construct street railroad without statutory consent, how pre- 
 vented 102 
 
 to procure forfeiture of franchise, how and where maintained... 127 
 to ascertain compensation for lands taken 162 
 
 Process of Manufacture. See Manufacture. 
 
 Profile. See Map. 
 
 Property: 
 
 ground for taking, for street railroad 22 
 
 necessity for taking, a political or legislative question 23 
 
 whether use a public one, a judicial question 23, 
 
 not taken for public use without compensation 40 
 
 franchise is ^^ 
 
 " consents " to street railroad are 82 
 
 transfer of, by street railroad corporation, how and when made. . 117 
 
 when, may be taken outside of street for street railroad 159 
 
 municipal authorities cannot direct location of street railroad upon ' 
 
 private 159 
 
 not actionable injury by delay in lawful construction of tracks in 
 
 street 244 
 
 State can only tax such as is within its jurisdiction 569 
 
 tangible, of railroad company, how and where taxed 578 
 
 Proximate Cause: 
 
 to recover for injury, defendant's negligence must be the 305 
 
 company liable for negligence, unless contributory negligence 
 caused injury 421 
 
 Prudence: 
 
 passenger injured by carrier's mismanagement may recover there- 
 for, notwithstanding imprudence, when 513 
 
 Public: 
 
 protection of, at highway crossings 35 
 
 franchise construed favorably to 36, 37, n. 
 
 interested in accomplishment of corporate purpose 37 
 
 rights of, under conditional consents 104 
 
 in streets, rights of, considered 134 
 
 ambiguity in grant construed favorably to 200 
 
 Publication: 
 
 of notice before granting consent by local authorities 74, n. 
 
INDEX. 663 
 
 Public Auction: page 
 
 sale* of franchise at 83 
 
 in New York only railroad corporations to operate street railroad 
 can bid at sale of franchise 88 
 
 Public Convenience and Necessity: 
 
 in New York determined by railroad commissioners 23 
 
 authority granted, construed so as toi sustain 28 
 
 certificate of 67 
 
 use of words in Connecticut statute 71 
 
 earlier extension not required by, twenty years of nonuser of 
 
 street privilege not abandonment g6 
 
 Public Crossing: 
 
 Public Policy; See Street Crossing. 
 
 does not permit railroad corporations to transfer property and 
 duties 119 
 
 Public Use: 
 
 landowner's right to ride on constructed road part of 166 
 
 Purchasers: 
 
 use of word in Alabama Code defined , 9, n. 
 
 Q. 
 Quantum Meruit: 
 
 when suit to recover as upon, on void lease permitted 120 
 
 Quarterly Reports. See Reports. 
 
 R. 
 Railroad Commission. See State Railroad Commission. 
 Railroad Commissioners. See Commissioners; State Railroad Com- 
 mission. 
 Railroad Law. See General Railroad Law. 
 
 Rails: See Tracks. 
 
 included in forfeiture of franchise, when 130 
 
 cannot be arbitrarily changed by municipality 220 
 
 in streets, how laid and maintained 242 
 
 space outside of, to be repaired by railroad company 261 
 
 negligence in maintaining loose 275-277 
 
 center-bearing in streets, when prohibited 278 
 
 injury occasioned by loosened, inference of defendant's negli- 
 gence justified 394 
 
 Rainfall: 
 
 carrier liable for injury to passenger resulting from, unless free- 
 dom from negligence affirmatively shown 422 
 
664 INDEX. 
 
 Rapid Transit: '*«" 
 
 as to New York acts .• lo, n. 
 
 Rate of Speed: 
 
 within police power of the State, and when not controlled by 
 
 municipality no 
 
 stated in charter, company bound thereby 211 
 
 ordinance limiting, must be reasonable 226 
 
 when applies to electric cars 226 
 
 of railroad company given right of way, not unlimited 227 
 
 unusual, occasioning accident and liability therefor 273 
 
 if reasonable, not negligent in itself 30Q 
 
 excess of rate ordained by statute, etc., evidence of negligence.. 307 
 
 when proof of negligence generally 323 
 
 proof of excessive, must not be vague or unsatisfactory when 
 
 claimed negligent 327 
 
 unlawful, does not excuse lack of care on traveler's part 346 
 
 high, not sufficient allegation of negligence 391 
 
 unreasonable, claimed as negligence, usual rate may be shown.. 396 
 testimony as to speed coupled with circumstances showing mo- 
 torman's inattention, when sufficient to prove negligence.... 401 
 
 sudden stopping of car, when not negligent 452 
 
 carrier's duty to regulate, in reference to passenger 515 
 
 carrier's, upon curves as regards duty to passengers 516 
 
 Rates of Fare: 
 
 legislature may regulate passenger and freight 40 
 
 subject to general law 40, n. 
 
 special act establishing, superseded by general law SOi n. 
 
 legislative right to change specified rate of fare a franchise 57 
 
 may be controlled in consents 105 
 
 municipal regulations as to 219, 419 
 
 generally regulated by statute 220, 435 
 
 single rate for a continuous passage within municipality 220 
 
 fixed by charter may yet be changed 221 
 
 must be established according to justice and right. 221 
 
 question of reasonableness a judicial one 221 
 
 as to statutory rates generally 224 
 
 excessive, a ground to vacate charter 225 
 
 carrier may refuse to transport one refusing compliance with 
 
 regulation as to 433 
 
 when cannot be changed by municipal ordinance 436 
 
 when carrier may sell special tickets at reduced rate 440 
 
 Ratification: 
 
 by municipality or private person presumes consent ill 
 
 Ratio: 
 
 care required in proportion to danger anticipated 533 
 
INDEX. 665 
 
 Real Property: page 
 
 of corporation, when not sold separate from franchise S3, n. 
 
 Rear Platform: See Crowding Cars. 
 
 reasonableness of ordinance regulating use of, determined by 
 
 courts 228 
 
 passenger riding upon, may assume he will be reasonably pro- 
 tected 451 
 
 as to crowding generally 467 
 
 as to riding upon, generally 472 
 
 passenger neghgent for unnecessarily remaining upon 473 
 
 Reasonable: 
 
 ordinance requiring street railway company to operate along 
 
 narrow streets not ; 63, n. 
 
 what are reasonable regulations considered 207 
 
 ordinance presumed to be 215 
 
 regulations by carrier must be 433 
 
 requirement for transfer check upon connecting lines for one 
 
 fare is 433 
 
 requirement, that passenger should not pass through train with- 
 out ticket is 433 
 
 that horse-car driver should not allow intoxicated person on 
 
 front platform is 433 
 
 of pay for packages inconvenient in si?e carried by passen- 
 gers is 434 
 
 that passenger placing more than required fare in box should 
 
 go to office for reimbursement, is not 434 
 
 that car should not be backed to receive person who has 
 
 properly signaled, may not be , 434 
 
 whether a rule is, is a question of law 434, 465 
 
 legislative rate of fare presumptively 43S 
 
 rule as to punching transfers, when 441 
 
 regulation as to place of paying fare, when 477 
 
 Reasonable Doubt: 
 
 solved against person claiming grant 36 
 
 Recording Act: 
 
 consents for street railroad not subject to 82 
 
 Reference: 
 
 to streets by name sufficient in street railroad charter 38, n. 
 
 Regulate: 
 
 defined • 216 
 
 Regulation: See Municipal Authorities. 
 
 general power of municipality to regulate 205 
 
 when applicable to extension 213 
 
 by municipality, how power usually confeired and exercised.... 214 
 
666 ixDEX. 
 
 Regulation — Continued : rAon. 
 
 municipal power of, a broad one 215 
 
 a continuing one 216 
 
 as to servants, equipments, fares, see ai^r 
 
 as to care and manner of running cars 225. 
 
 as to care of streets, removing dirt, snow, and ice, etc 230 
 
 by municipality not limited to time of construction 242 
 
 as to compliance with, by street railroad company 306 
 
 statute and municipal, as to passenger carriers 418 
 
 when adopted by carrier must be observed by passenger 432 
 
 passenger not presumed to know carrier's 433 
 
 whether reasonable, a question of law 434, 465 
 
 carrier may make and enforce, as to use of transfers 440'. 
 
 carrier may not make, preventing passengers from carrying 
 
 small packages, etc 467 
 
 by carrier as to entering, occupying, or leaving car, when reason- 
 able , 471 
 
 conspicuously posted in car, knowledge of, inferred 471 
 
 as to paying tare, when reasonable 477- 
 
 Release: 
 
 of right to operate railway, when contemplated 63, n. 
 
 by turnpike company of its interest in bed of street, releases 
 
 franchise previously acquired for constructing railroad 196' 
 
 of one of several tort-feasors discharges all 313 
 
 Remainderman : 
 
 when may consent to street railroad 79> 
 
 Remedy — Remedies: 
 
 of abutting owner in taking street for railroad purposes 152 
 
 for unauthorized or defective construction 245 
 
 what, provided for breach of contract to carry 491 
 
 Removal: 
 
 summary, of turnouts and switches, when not warranted 244 
 
 Renewal: 
 
 of corporate charter, when 21, n. 
 
 of franchise, when and how permitted 124 
 
 Rent: 
 
 past due, under void contract not collectible, when 119. 
 
 Repairs : 
 
 when street surface railroad must make, generally 259 
 
 by street railroad company a common-law duty 259. 
 
 railroad ordinarily not required to repair entire street 260 
 
 at intersection of streets 262- 
 
 of bridges generally 262: 
 
 neglect of, by railroad company, liability, how enforced 263 
 
 of electrical conductors, care required 269. 
 
INDEX. 667' 
 
 Repair Wagon: fage 
 
 when an obstruction to travel 231 
 
 Repaying. See Paving. 
 Repeal: 
 
 charter previously granted, when not modified by act in repealing, 22 
 
 of charter, when unauthorized 32 
 
 as to repeal of charter 39. 
 
 how power reserved to, may be exercised 39 
 
 executory contracts not destroyed under power to 40 
 
 reserved power to, controls exclusive franchise 114 
 
 Report: 
 
 of commissioners as to necessity of road, how confirmed 100 
 
 of majority of commissioners may be confirmed lOO 
 
 adverse, of commissioners as to necessity prevents construction of 
 
 road 100- 
 
 by street railroad as to cars, etc., to municipality, may be required, 232 
 of officers as to earnings, New York Railroad Law 236, n. 
 
 Requisite: 
 
 of application for street railway not applicable to extension 95. 
 
 Rescission: 
 
 corporation accepting franchise cannot maintain action to rescind, 112 
 
 Res Qests: 
 
 acts of conductor on car after collision are not of 399i 4°°' 
 
 declaration of motorman at place of, and few moments after, in- 
 jury admissible 40O 
 
 car's construction and appliances, when admissible as part of 432 
 
 exclamation by witness of accident no part of 54^ 
 
 Reservation: 
 
 of power to alter, amend, or repeal charter valid 39 
 
 to alter or amend charter, what equivalent to 39- 
 
 constitutional power to alter charters reserved, effect of 41 
 
 of right to grant franchises to other company 66- 
 
 of right to condemn portions of railroad to other uses i77. "• 
 
 Resistance: 
 
 by passenger against expulsion, when permissible 502, 504. 
 
 Resolution: 
 
 accepting franchise, when unnecessary 95 
 
 municipal authorities may ordinarily act by 2ig 
 
 Restraint of Trade: 
 
 requirement of report as to passengers not unreasonable and m.. 232 
 
 Restrictions: 
 
 by municipality as to use of streets 19 
 
 upon right to extend street railroad in New Jersey. 96. 
 
,668 INDEX. 
 
 Restrictions — Continued : **°= 
 
 of public right never presumed in grant of privilege io8 
 
 of right to use turnouts, etc., in negligent or unskillful way 244 
 
 Retroactive. See Retrospective. 
 
 Retrospective: 
 
 laws, when invalid 30 
 
 legislation, when permitted 3" 
 
 Review: 
 
 of grant of certificate of public convenience, etc., how governed, 70 
 
 Revocable License: 
 
 when corporate authority is a 35 
 
 Revocation: 
 
 of exclusive franchise, when implied iiS 
 
 of franchise as to 122 
 
 Right of Way: 
 
 ordinance concerning, a police power 26 
 
 once acquired, franchise consists in, etc 56 
 
 to street railroad only over streets named in charter 65 
 
 upon public street is property 120 
 
 conveyed by abutting owner for railroad includes side track 153 
 
 given to street railroad, speed upon, must be reasonable 227 
 
 of vehicles and street cars upon streets equal 319 
 
 street car's right of way over tracks except at street crossings. .. 319 
 
 at street crossing to vehicle rather than to street car 346 
 
 no defense to carrier where passenger injured by collision at cross- 
 ing .^ 426 
 
 of railroad company, how assessed in California S8o 
 
 Rights: 
 
 and conditions included in franchises 107 
 
 under franchise, how and by whom questioned 112 
 
 of public and abutting owners in street considered 134 
 
 right to cross bridge substituted for bridge crossed for five years 
 (New York Railroad Law, § no) 196, n. 
 
 Rivers: 
 
 extension of railroad over (New York Railroad Law, I 96) . . 195, n. 
 Ttoadbed: 
 
 municipal authorities may regi'late construction of future 220 
 
 construction of, generally 242 
 
 as to negligence in maintaining 275 
 
 elevated above or depressed below grade, when negligent 282 
 
 care to maintain, required of passenger carriers 415, 420 
 
 rendered unsafe by city authorities, passengers should be notified 
 of fact 426 
 
INDEX. 669 
 
 Route: PACE 
 
 of railroad over rivers, how extended (New York Railroad Law, 
 
 § 96) ip5^n. 
 
 when railroad company may determine and select 240- 
 
 as to duty in operating cars on road other than at street crossing, 317 
 when applicable to several lines designated on transfer 444 
 
 Rule: See Regulation. 
 
 to stop, look, and listen before crossing railroad tracks 365 
 
 when not applicable in crossing street-car tracks 370. 
 
 Running=Board: See Front Platform; Open Car; Rear Platform, 
 custom for passengers to occupy, considered in action for injury 
 "P°" 475 
 
 S. 
 Safeguards. See Guards. 
 
 Safety: 
 
 statutes providing for, liberally construed 229 
 
 Sale: 
 
 of franchise at public auction 83 
 
 how and when permitted 117 
 
 not made to private individuals 1 18 
 
 of one railroad for payment of taxes due upon others with which 
 
 it is consolidated, when not allowed 569 
 
 Salt: 
 
 use of, on tracks may be prohibited 229 
 
 Sand: 
 
 use of, on tracks may be prohibited 229 
 
 Satisfaction: 
 
 separate recovery against several wrongdoers, but one 312 
 
 Screens: 
 
 required by statute to protect employees from wind and storm. . 538 
 
 Self -Defense: 
 
 employee acting in, carrier not liable for injury thereby 497 
 
 Self-Executing: 
 
 forfeiture clause in charter, when 42 
 
 when forfeiture clauses 46, n. 
 
 when forfeiture clauses not 44; n. 
 
 Servants: See Carriers of Passengers; Employees; Motorman, etc. 
 
 of street railroad, municipal regulation as to 219 
 
 Servitude: 
 
 construction of street railroad in street not an additional 135, 144 
 
^670 INDEX. 
 
 Set=Off: '^*''^ 
 
 company not entitled to, where cars stopped, for its failure to 
 repair 264 
 
 Shade Trees: 
 
 in street may be cut for trolley road, how 141 
 
 removed from highway without compensation to abutting own- 
 ers, when 141 
 
 Shareholders. See Stockholders. 
 
 Shelter: 
 
 carrier need not provide, for ejected trespasser 504 
 
 Side Track: 
 
 needful for use of street railway, franchise authorized 244 
 
 Sidewalk: 
 
 one standing upon and injured by collision between street car 
 and wagon, testimony competent in action to recover for in- 
 jury 400 
 
 relation of carrier and passenger does not continue to, unless 
 carrier's right of way obstructed 449 
 
 Signals — Signal Lights: 
 
 when carried, absence of headlight not negligent 281 
 
 to be maintained by street railroad company 292 
 
 contradictory evidence as to ringing of bells, etc., considered. . . . 398 
 
 starting car without, may be negligent 451 
 
 given by unauthorized person, carrier may be liable for injury 
 
 occasioned thereby 463 
 
 at crossing of the track, not invitation to passenger to alight. . . 484 
 
 Silence: 
 
 for short time no indication that franchise is accepted 112 
 
 Siphons: 
 
 as to ordinance requiring street railroads to furnish 218 
 
 Smoking: 
 
 may be prohibited in street cars 229 
 
 when ruk against, on car deemed waived 472 
 
 Snow: 
 
 removal of, by street railroad may be compelled 229, 230 
 
 when company liable for dangerous bank of 231 
 
 embankment of, in street, when negligent 276 
 
 what testimony sufficient to show dangerous obstruction of, 
 
 along street-car tracks 397 
 
 carrier bound to anticipate difficulty in controlling cars when 
 
 track slippery with 429 
 
 carrier bound to remove, from step of car 429 
 
INDEX. 671 
 
 South Carolina: page 
 
 forfeiture clause not self -executing 45, n. 
 
 South Dakota: 
 
 constitutional provision as to street railroad 18, n. 
 
 Space: 
 
 outside of rails to be repaired by railroad company 260 
 
 Special Act. See Statute. 
 Special Assessments: 
 
 for street paving, etc., as to ggp 
 
 Special Damages: See Damages. 
 
 permanent injuries should be pleaded as 565 
 
 Special Interrogatories: 
 
 when to be submitted to jury 553 
 
 Special Privilege; See Franchise. 
 Specific Performance: 
 
 of contract for mutual co-operation to secure franchise, when re- 
 fused 130 
 
 Speed. See Rate of Speed. 
 Spike: 
 
 maintaining protruding, negligent 1. 275 
 
 Sprinkling Cart: 
 
 negligence as to driving on street railroad track 321 
 
 Stage Coaches: 
 
 care required by carriers of passengers by 271 
 
 State Railroad Commission: 
 
 application to, to cross tracks of steam railroad igo 
 
 for change of motive power 202 
 
 action of, on application to change motive power, judicial 203 
 
 cannot review or reconsider its own judicial action 203 
 
 cannot exercise arbitrary power as to maintenance of wires 286 
 
 in Kentucky, must assess railroad property as an entirety, when, 603 
 
 State Board of Railroad Commissioners: See State Railroad 
 Commission. 
 
 State Constitution. See Constitutional Law. 
 
 State Park: 
 
 as to value of lands of, in proceeding for certificate of public 
 convenience, etc 70 
 
 Statutes: See Various States. 
 
 generally confer power to street railroad to carry persons and 
 
 property 4 
 
 when include street railroads 7, n. 
 
672 
 
 INDEX. 
 
 Statutes — Continued : ''*°^ 
 
 as to New York Rapid Transit Acts 10, n. 
 
 not objectionable because private parties benefit 24, n. 
 
 impairing vested right void 32 
 
 conveying franchises construed favorably to the public 36 
 
 provision confirming charters granted, a general law 42 
 
 street-surface railroads creatures of 58 
 
 when special, granting franchises contemplates release of right, 63, n. 
 municipal ordinance authorizing extension, not a special act con- 
 ferring corporate power 95 
 
 provide for lease of corporate franchises, etc 11& 
 
 as to receiving " toll " applies to street railroad companies 121 
 
 authorizing taking of property, strictly construed 156, 200 
 
 authorize and limit use of motive power for street railroads 198 
 
 permitting electricity, ratifies previous consent of city therefor. . 203 
 
 general, do not prevent special as to local improvement 222 
 
 as to compliance with regulations of 306 
 
 foreign, relied upon, how pleaded 390 
 
 regulation as to passenger carriers 418 
 
 Steam. See Legislative Steam Power. 
 
 Steam Railroad: 
 
 rules as to right of way of, inapplicable to street railroad 320 
 
 as to collision between steam train and electric car 333 
 
 street carrier passenger must observe highest precaution in 
 
 crossing — Sio 
 
 Steam Roller: 
 
 not incumbent upon street railroad company to notify traveler 
 
 that it is likely to frighten horses 402 
 
 Steps. See Crowding Cars; Front Platform; Rear Platform. 
 
 Stipulation: 
 
 controlling rate of speed unauthorized, when no 
 
 Stock: See Capital Stock. 
 
 Stockholders: 
 
 rights of, not to be impaired by legislature 33 
 
 cannot make a valid consent to ultra vires contract 119 
 
 consent of, to lease, not essential 120 
 
 action by, to set aside corporate lease, when permitted 122 
 
 not compelled to take stock in consolidated corporation 174 
 
 rights of, upon consolidation with other corporation 174 
 
 Stop: 
 
 rule to stop, look, and listen before crossing railroad tracks 365 
 
 Storm: 
 
 duty of street railroad company in time of 23a 
 
INDEX. 673 
 
 Stranger: ^*ge 
 
 carrier, when liable for assault upon passenger by 498 
 
 Street Cars: 
 
 ordinance concerning, a police power 26 
 
 •municipal regulation as to care and manner of running 225 
 
 ordinance limiting speed of, applies to electric cars 226 
 
 must be so run as to be quickly stopped 227, 353 
 
 company cannot refuse to run to bring labor to its terms 228 
 
 smoking may be prohibited in 229 
 
 approach to each other may be regulated 229 
 
 number of, to be operated in discretion of corporation 274 
 
 as to maintenance and equipment of 278 
 
 not negligent to run in opposite direction 305 
 
 proceeding upon left-hand track, not negligent 310 
 
 approaching street crossing, duty of employees upon 313 
 
 liability for obstructing streets with , 322 
 
 not necessarily defect, or object, likely to frighten hors«s 332 
 
 as to collision of, with steam train 333 
 
 collision between 336 
 
 judicial notice taken that electric car under safe speed can be 
 
 stopped within 100 feet 396 
 
 in action for injury occasioned by collision between street car 
 and a wagon, concurrent negligence of driver of wagon im- 
 material 400 
 
 care to maintain, required of passenger carriers 415, 427 
 
 municipality may require tickets to be sold upon 419 
 
 wheels of, to be suitably guarded 428 
 
 carrier bound to anticipate difficulty in controlling, when track 
 
 slippery with snow 429 
 
 should not be started without signal 451 
 
 sudden stopping of, after moving in crowded street at two miles 
 
 an hour, when not negligent 452 
 
 rules as to starting and stopping of, to take on passengers 457 
 
 carrier's regulations as to entering, occupying, or leaving, when 
 
 reasonable .' 47i 
 
 carrier's care of parcels left in 505 
 
 Street Crossings: See Crossing. 
 
 municipal authorities may require cars to come to full stop at. . . 227 
 
 as to paving and repairing 262 
 
 guard and signals upon street car approaching 29s, 313 
 
 not bound to erect signs or maintain flagman at 316 
 
 what constitutes 316 
 
 ordinance regulating approach to, not basis of liability between 
 
 passenger and carrier 418 
 
 carrier must observe greatest caution to prevent collision at 508 
 
 43 
 
6/4 INDEX. 
 
 Streets and Highways: tage 
 
 street railroad may occupy the whole 3 
 
 when statute includes railroad in highway 7, n. 
 
 control of, by municipal authorities 9, n. 
 
 authority to control, resides in State 13, 32, 49 
 
 grant of franchise in streets, avenues, etc.; how limited 20 
 
 municipal authority to lay out, open, etc., does not include street 
 
 railroad 25 
 
 street railroad, improved method of using 25, n. 
 
 difference between highway and city street as to street railroad, 25, n. 
 
 mere name of, in street railroad charter 38, n. 
 
 use for railroad not within municipal grant 49, n. 
 
 primary object of 50 
 
 when right of way acquired in, for street railroad 56 
 
 exclusive or perpetual right to use street not conferred 56 
 
 power to regulate use a continuing one 61 
 
 entire w.idth cannot be devoted to railroad purposes 63 
 
 right of way in, for street railroad only over streets named in 
 
 charter 65 
 
 extension of tracks in new 95 
 
 named in petition for extension of road 98 
 
 right to construct road in, cannot be embarrassed, when 115 
 
 unauthorized use of, a nuisance , 131 
 
 how prevented 131 
 
 rights of public and abutters in, considered 134 
 
 distinction between street and country road as to construction 
 
 of street railroad in 139 
 
 shade trees in, may be cut for electric wires, how 141 
 
 ■railroad authorized in, must be built substantially in 159 
 
 as to care of, removing dirt, etc 230 
 
 effect of accepting street in which railroad has been laid 241 
 
 bridge not, within paving ordinance 262 
 
 travelers entitled to safe passage in 269 
 
 as to telephone and other light-current wires upon 286 
 
 rule to turn to right in meeting vehicles, inapplicable to street 
 
 <^^'' 310, 320 
 
 obstruction of street cars upon, liability therefor 322 
 
 railroads are not, so as to entitle one to ride upon without pay- 
 ing fare 479 
 
 Street-Sweepers : 
 
 care to be exercised by, as to street cars 349, 354 
 
 Suburb — Suburban : 
 
 care required of railroad in suburban streets 273 
 
 duty of traveler crossing railroad track in thinly-settled district, 389 
 
INDEX. 675 
 
 Subways: page 
 
 New Jersey act concerning 25, n. 
 
 as to placing electrical conductors underground 247 
 
 company not common carrier 252 
 
 business of company a private one 253 
 
 Successors: 
 
 use of word in charter, how construed 118 
 
 Sunday: 
 
 no defense in action for injuries that traveler was violating regu- 
 lation against traveling upon 418 
 
 Superior. See Paramount. 
 
 Supervision: 
 
 power of, implied in power to appoint commissioners lai 
 
 Supervisor: 
 
 of township, when consent to street railroad required 65, n. 
 
 Supreme Court: 
 
 to review grant of certificate of public convenience, etc 70 
 
 Surrender: 
 
 of street railroad franchise, when permitted 124 
 
 of legislative power to tax, not implied 568, 569 
 
 Switches: 
 
 courts may determine lengfth of, and requirements 155 
 
 construction of, generally 242 
 
 convenient for use of street railway, franchise authorized 244 
 
 not obstructions in street 244 
 
 placed properly in crosswalk, when street railroad company not 
 
 required to repair 265 
 
 when Y-switch unauthorized 245 
 
 T. 
 " Taking: " See Condemnation; Eminent Domain. 
 
 of abutter's property for railroad purposes 143 
 
 what is, within meaning of Constitution 144 
 
 street railroad cannot construct road substantially outside of 
 
 streets I57 
 
 of land only for public use 161 
 
 Tangible Property. See Property. 
 Tariff of Rates. See Rates of Fare. 
 
 Taxation: 
 
 subject to, company not thereby required to pave, etc 258 
 
 as to legislative power to tax 567 
 
 municipal power to tax cannot be delegated to other agencies. . . 569 
 
 exemption from, considered generally 573 
 
676 
 
 INDEX. 
 
 Taxation — Continued : **°^ 
 
 as to commutation for taxes 577 
 
 as to taxation of tangible property 578 
 
 of same railroad property in several municipalities..... 583 
 
 of capital stock 584 
 
 of franchise 587 
 
 of earnings 593 
 
 as to license fees 595 
 
 effect of consolidation upon 597 
 
 as to special assessments 599 
 
 Taxpayer: 
 
 not abutting owner cannot restrain unauthorized construction of 
 road 103 
 
 when may maintain action to restrain contract with subway com- 
 pany 253 
 
 Telegraph: 
 
 rights of companies in streets and highways 286 
 
 Telephone: 
 
 rights of companies in streets and highways. 286 
 
 Temporary Injunction. See Injunction. 
 Tender: 
 
 of conveyance of right by plaintiff and decree for permanent dam- 
 ages 154 
 
 of smooth silver coin in payment of fare 479 
 
 Tennessee: 
 
 forfeiture clauses not self-executing 45, n. 
 
 rule as to contributory negligence inapplicable to common-law 
 action agamst railroad 309 
 
 Termination: 
 
 of franchise, when and how permitted 125 
 
 Terminus: 
 
 of railroad in other counties (New York Railroad Law, § 96) . . 195, n. 
 Term of Years: 
 
 when exclusive franchise for street railroad for, not permitted. . 64 
 
 Testimony: See Evidence; Witness. 
 
 when incredible and disregarded 397 
 
 Texas: 
 
 constitutional provision as to street railroad 18, n. 
 
 forfeiture clause in, self-executing 47, n. 
 
 statute of, as to blowing whistle, ringing bells, etc., does not apply 
 
 to street railroads 298 
 
 franchises of street railroad in, taxed as real estate 582 
 
INDEX. 677 
 
 Tickets— Trip Ticlcets: pace 
 
 as to sale of, at reduced rates 224 
 
 statute may require carrier to furnisli 229 
 
 may be required by ordinance to be kept for sale upon street cars, 419 
 
 when carrier may sell special, at reduced rates 440 
 
 taken by assistant conductor, passenger giving, may not be ejected, 478 
 
 Time: 
 
 limit of grant by Constitution 17 
 
 by legislature 20 
 
 limited by legislature must also be by municipality 21 
 
 written consents filed, jurisdiction to construct street railroad not 
 
 exhausted by lapse of gi 
 
 municipal authorities may grant extension for limited 96 
 
 of constructing roads may be limited in consents 105 
 
 five years' operation of trolley line presumed rightful in 
 
 municipal ordinance may require car every six minutes 308 
 
 Toll: 
 
 provision of statute as to, applies to street railroads 121 
 
 Tools: 
 
 carrier's duty to furnish safe, in relation to employees 533, 534 
 
 Tort-Feasors. See Wrongdoers. 
 Town. See Municipality. 
 Township: 
 
 franchise to street railroad granted by, providing for trip tickets, 224 
 Tracks: 
 
 street railroad, not to be transferred by legislature 32 
 
 on private land, when required to be fenced 35 
 
 when right to operate in street does not confer right to use tracks 
 
 therein 39, n. 
 
 of railroad, when required to extend to union passenger station. . 42 
 
 of railroad company, inseparable from franchise to operate S3, n. 
 
 consent to single, not consent to double 78 
 
 of another company, " consents " for using 80 
 
 ordinance authorizing, company may lay successive 109 
 
 authority to construct horse railroad may allow electric 109 
 
 when consent to location presumed in 
 
 cannot be multiplied in street to interfere with public 114 
 
 unlawfully laid in street, authorities may remove by force 133 
 
 laying of, in streets without consent prohibited by Constitution . . 143 
 
 of other roads, use of, considered 174 
 
 when different companies required to use same 178 
 
 of one company cannot be used by another without former's 
 consent or statute authority 186 
 
678 
 
 INDEX. 
 
 Tracks — Continued : '*°= 
 
 crossing of, by other tracks 186 
 
 municipality cannot require rails to be changed, when 220 
 
 use of salt or sand upon, may be prohibited 229 
 
 as to location of 237 
 
 when located on side of street 239 
 
 so located as to do least injury 239 
 
 municipal consent required to location of, on private property. .. . 242 
 
 construction of, generally 242 
 
 company cannot limit to single track by contract with individual, 244 
 
 when relaid and adjusted to new pavement and grade 258 
 
 space outside of, to be repaired by railroad company 261 
 
 negligence as to maintaining 275 
 
 collision between street car and persons on or near track 343 
 
 care of, required of passenger carriers 420 
 
 parallel, distance apart for safety of passengers 423 
 
 Traffic — Traffic Arrangement: 
 
 how limited in granting consents to construct road 107 
 
 arrangements for, between street railroads considered 174 
 
 statutes prohibiting lease do not preclude traffic arrangements . . 186 
 
 Trailer: 
 
 where absence of guards from wheels of, is negligence 429 
 
 following grip car, when passenger not negligent in riding outside, 476 
 
 Trains: 
 
 use of streets for, not justified, when 142 
 
 Tramway: See Cable Road. 
 Transferee. See Lessees. 
 Transfer — Transfer Check: 
 
 regulation that passenger, over connecting lines for one fare must 
 
 have, reasonable 433 
 
 when carrier may sell ticket not transferable 440 
 
 carrier must furnish correct 440 
 
 use of, limited to next car proper. 441 
 
 passenger taking wrong car under, may be ejected 442 
 
 not bound by conditions printed on 442, n. 
 
 designating route, may be applicable to any one of several lines, 
 
 when /|/|/[ 
 
 passenger receiving upon one road when a passenger on other. .. 446 
 
 Transportation. See Carriers of Passengers; Passengers. 
 
 Trap-Door: 
 
 in platform need not be guarded against by passenger 430 
 
 Travelers: 
 
 on a street may use railroad tracks 27s 
 
INDEX. 679 
 
 Trench: See Excavation. i'aoe 
 
 in street a defect for which street railroad, may be liable 260 
 
 when not ; 261 
 
 opened by carrier, its servants must see that passengers do not 
 alight in 485 
 
 Trespass: 
 
 intrusion upon street by street railroad, a 65 
 
 when repetition makes new cause of action within statute of limi- 
 tations 150 
 
 when company not trespasser in repairing street 262 
 
 carrier owes no duty of protection to trespasser 487 
 
 may use reasonable force to eject trespasser 487 
 
 not liable for death of trespasser, by stealing ride upon car, 
 
 although presence known, to driver 488 
 
 need not provide shelter for ejected trespasser 504 
 
 Trolley. See Electric Road. 
 TroIIey-Wire: See Electrical Conductors. 
 
 when telephone and light-current wires must not interfere with, 288 
 Truck: 
 
 loaded with lumber, injuries from, to passenger in car 296, sn 
 
 in what space loaded, should be stopped, matter of expert tes- 
 timony 403 
 
 Turnouts: See Switches. 
 
 courts may determine number required in street railway 155 
 
 construction of, generally 242 
 
 convenient for use of street railways, franchise authorized 244 
 
 not obstructions in streets 244 
 
 Turnpike: 
 
 when used for railroad purposes ^^ 
 
 use of, for street surface railroad considered generally 193 
 
 what grant of right to operate railroad by, does not permit a 
 freight car to be run upon 197 
 
 Turnpike Company: 
 
 not a " local authority " whose consent must be had to street 
 railroad 17 
 
 Turntable: 
 
 no municipal liability for improper location of, etc., by street rail- 
 road 311 
 
 U. 
 
 Ultra Vires: 
 
 leasing space in street car for advertising purposes 24, n. 
 
 authority to use steam upon street railroad 26 
 
68o INDEX. 
 
 Ultra Vires — Continued : ^ao= 
 
 ordinary powers of municipality insufficient to authorize street 
 
 railroad except by horse power 26 
 
 municipality cannot authorize private railroad upon street 28 
 
 nor authorize railroads to occupy entire street 28 
 
 contract of street railroad guaranteeing receipts of steamboat com- 
 pany not 38, n. 
 
 to justify judicial intervention, municipal act must be 67 
 
 contract executed does not become valid , 120 
 
 Unauthorized: 
 
 construction, remedy for 245 
 
 Underground: 
 
 as to placing electrical conductors 247 
 
 Underground Wires. See Subways. 
 Uniformity: 
 
 of taxation required by Federal Constitution, as to 57° 
 
 Union: 
 
 connection between street surface railroad and elevated railroad 
 not a union within section 4 of New York Railroad Law 184 
 
 United States Court: 
 
 forfeiture clauses held not self-executing by - ■ . . . 44, n. 
 
 self-executing by 46, n. 
 
 Unreasonable. See Reasonable. 
 
 Urban: 
 
 when electric road controlled by Interstate Commerce Act, al- 
 though for urban passengers 420 
 
 Use: 
 
 difference between street railroad and steam railroad consists in, 2 
 
 of street railroads i 
 
 railroad in street not for private 9 
 
 of private way for street railroad restricted 12, n. 
 
 of streets for railroad, how restricted by charter 14, n. 
 
 municipal authorities 19 
 
 exercise of eminent domain for public 23 
 
 for which property required, a judicial question 23, 24, n. 
 
 railway tracks to private warehouse, when public 24, n. 
 
 of street other than for travel, subordinate 50 
 
 for street railroad, power to regulate a continuing one 61 
 
 of tracks of other roads considered generally 174 
 
 of turnpikes, bridges, etc., by street railroad considered 193 
 
 of salt or sand upon tracks may be prohibited 229 
 
 Usurpation: 
 
 of franchise, matter between State and company ill 
 
INDEX. 68l 
 
 V. 
 Valid: page 
 
 reserved power to alter, amend, or repeal charter is 39 
 
 Vehicles: 
 
 as to use of railroad tracks by heavy 277 
 
 rights of drivers of, at street crossings 313 
 
 as to collision between street cars and other 338 
 
 must turn out on meeting street car 339 
 
 company liable for injury to. where car driver wantonly ran 
 
 against it 341 
 
 colliding with street car, when passenger on latter may maintain 
 
 action against driver of 508 
 
 Verdict: 
 
 in action of personal injuries, what deemed excessive 410 
 
 Vermont: 
 
 forfeiture clauses not self-executing 45. n. 
 
 Vested Right: 
 
 acquired by contract not to be defeated 16, 20, n. 
 
 power of municipality to confer, how limited 20, n. 
 
 law divesting, when not inconsistent with United States Consti- 
 tution 30 
 
 as applied to charters, construed 32, S3 
 
 when judicial intervention to protect 67 
 
 what fraud impeaches adverse report as to public convenience and 
 necessity , loi 
 
 Viaduct: 
 
 when construction of, not a " taking of land " 137, n. 
 
 Vigilance; See Care. 
 Village. See Municipality. 
 Violence: See Ejection. 
 
 enforcing regulation question of unnecessary, for the jury 435 
 
 Virginia: 
 
 ' forfeiture clauses self-executing 46, n. 
 
 Void Act: 
 
 of municipality, how cured . ; 31 
 
 in granting exclusive privilege to street railroad company, when, 66 
 
 W. 
 Wagon. See Vehicles. 
 
 Waiver: 
 
 State imposing condition may waive performance 43 
 
 of forfeiture of franchise, when 126 
 
 carrier's obligation to provide safe passenger transportation can- 
 not be waived 445 
 
 when rule against smoking on car deemed waived...] 472 
 
682 INDEX. 
 
 Warning; See Lookout; Signals. 
 
 Warrant: ''*== 
 
 for arrest without, upon conductor's charge, when carrier liable, 506 
 
 Washington: 
 
 statute of, as to turning out on highways inapplicable to meeting 
 a street car 310 
 
 Washout: 
 
 when railroad company not liable for, as for defect 317 
 
 Water: 
 
 as to ordinance requiring street railroad to carry away surface. . 218 
 natural flow of, must not be interfered with in removing ice and 
 snow 230 
 
 Weapons; See Dangerous Weapons. 
 
 Wires. See Electrical Conductors. 
 
 Wisconsin: 
 
 when corporate franchises within, inalienable 592 
 
 as to exempting street railways from special city assessments 
 within 603 
 
 Words — Phrases: See Definition. 
 
 ambiguous, construed favorably to public 36 
 
 " at each end of the lines " construed 323 
 
 Workman: See Employees. 
 
 upon street, care exercised by, to avoid street car 350 
 
 in making materials for cars and appliances, must be competent 
 and skillful 534 
 
 [total number of pages, 784.] 
 
r 
 
 KF 2393 IT42 
 
 Author Vol. 
 
 NelliSj Andrew J. 
 
 "' The law of street stirface R.fi?"